THE REVISED RULES OF CRIMINAL PROCEDURE

(A.M. No. 00-5-03-SC)

EFFECTIVE DECEMBER 1, 2000
RULE 110
PROSECUTION OF OFFENSES
SECTION 1.
Institution of Criminal Actions

The Rule does not apply to violations of municipal ordinances

and special laws.

PRESCRIPTION
JURISDICTION

In Zaidivia u. Reyes, the court held that the interruption of the

prescriptive period upon the institution of the complaint under Section 1
of Rule 110, does not apply to cases for violation of special acts and
municipal ordinances.

Prescription is interrupted with the filing of the case even if the

court is without jurisdiction.
The Court, citing Olarte and the subsequent cases of Francisco
v. Court of Appeals and People v. Cuaresma.
Thus, even if preliminary investigation is not required, "the
prescriptive period for the quasi offenses was interrupted by the filing of
complaint with the fiscal's office three days after the vehicular mishap
and remained tolled pending the termination of the case."

This is governed by Act No. 3326 and is interrupted only by the

institution of judicial proceedings for its investigation and punishment.

There are three (3) amendments in this rule:

First: The removal of cases governed by the Rule on Summary
Procedure in special cases from the manner of institution of criminal
actions above provided for.
The opening phrase in the former Rule "For offenses not
subject to the rule on summary procedure in special cases" was
deleted.
This phrase was ane of the basis of the ruling of the Supreme
Court in the case of Zaidivia v. Reye1 excluding offenses subject to
summary procedure from the general rule on the interruption of the
period of prescription.
Under the amendment, the institution of all criminal actions
shall be the same.
Second: Under the former rule, the commencement of actions
by filing the complaint with the appropriate officer for preliminary
investigation were limited to cases falling under the jurisdiction of the
Regional Trial Court.
This is no longer true.
Under Section 1 of Rule 112, except as provided in Section 7 of
said rule, referring to lawful arrests without a warrant, preliminary
investigation is required for an offense punishable by imprisonment of
at least four (4) years, two (2) months and one (1) day.
The reason why originally there was no preliminary investigation
in cases triable by justice of the peace or municipal courts was because
they involved only minor offenses or misdemeanors.
The criminal cases then exclusively triable by municipal courts
were those where the penalty provided by law did not exceed six
months imprisonment and/or a P200.00 fine.

The Court clarified in Reodica u. Court of Appeals, that even if

the case is governed by the Revised Rule on Summary Procedure (which
is not a violation of a municipal ordinance or special law), such as
reckless imprudence resulting in slight physical injuries, prescription is
interrupted with the filing of the complaint in the Fiscal's office.
In view, however, of the ruling in Zaidivia v. Reyes, that the
rules cannot amend special laws, and under Act No. 3326, the period of
prescription for offenses punishable by special laws, prescription shall
only be interrupted upon the institution of judicial proceedings for its
investigation and punishment, the rule has accordingly been amended
to except therefrom offenses punishable by special laws so far as
prescription is concerned.
The main basis of the said ruling of the Supreme Court was that
under Act No. 3326 as amended, the prescriptive period for violation of
special laws and municipal ordinances was interrupted only upon the
filing of the complaint or information in court.
This ruling was confirmed in the case of Reodica v. Court
ofAppeals11 as an exception to the general rule under Article 91 of the
Revised Penal Code that the filing of the complaint, whether for
preliminary investigation or for action on the merits, interrupts
prescription.
Hence, the phrase "unless otherwise provided in special laws"
was inserted as an exception to the general rule that such institution
shall interrupt the period of prescription of the offense charged.
Act No. 3326, as amended is entitled: "An Act To Establish
Periods of Prescription for Violations Penalized By Special Laws and
Municipal Ordinances and to Provide When Prescription Shall Begin To
Run."

The
ordinances.

Clearly, therefore, these offenses were not minor

misdemeanors and yet no preliminary investigation was required.

For offenses which require a preliminary investigation, the

criminal action is instituted by filing the complaint with the appropriate
officer for preliminary investigation.

or

Since, the type of offenses that requires preliminary investigation have been expanded
by amendment to Section 1, Rule 112 to offenses punishable by imprisonment of at
least four (4) years, two (2) months and one (1) day, Section 1 required such cases to
first be filed for preliminary investigation.

Section 1 has accordingly been amended by removing

therefrom the limitation to offenses commenced by complaint before
the appropriate officer for preliminary investigation only to those
offenses cognizable by the Regional Trial Court, but included to a limited
extent cases cognizable by the municipal trial courts.
It should also be noted section 5, Rule II of Administrative No. 8
of the Office of the Ombudsman provides that: "Cases falling under the
jurisdiction of the Office of the Ombudsman which are cognizable by
municipal trial courts, including those subject to the Rule on Summary
Procedure may only be filed in court by Information approved by the
Ombudsman, or the proper Deputy Ombudsman in all other cases."
Third: Under the former rule, prescription is interrupted in all
cases upon the institution of the criminal action.
The 1988 Amendments abandoned the ruling of the Supreme
Court in People u. Olarte and adopts the ruling in Francisco u. Court of
Appeals, to the effect that the filing of the complaint with the fiscal's
office also interrupts the period of prescription of the offense charged.
This includes cases filed with the ombudsman for preliminary
investigation.

exception

therefore,

includes violations of

A distinction is made between the

"commencement" of a criminal action.

IF

COURT

IS

WITHOUT

For Violation of Special Laws

It has been settled that Section 2 of Act No. 3326 governs the
computation of prescription of offenses defined and penalized by special
laws.
Section 2 of Act No. 3326 was correctly applied by the anti-graft
court in determining the reckoning period for prescription in a case
involving the crime of violation of Republic Act No. 3019, as amended.
Since the law alleged to have been violated, i.e., paragraphs (e)
and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the
applicable rule in the computation of the prescriptive period is Section 2
of Act No. 3326, as amended, which provides:
Sec. 2. Prescription should begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time,
from the discovery thereof and institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when the proceedings are
instituted against the guilty person and shall begin to run again if the
proceedings are dismissed for reasons not constituting double jeopardy
This simply means that if the commission of the crime is known,
the prescriptive period shall commence to run on the day it was committed.

In lieu thereof, Chapter 7, Title I, Book III provides for the

Katarungang Pambarangay.
Pertinent provisions of the law are as follows:

When disputes involve ICCs/Ps, customary laws and practices

shall be used to resolve the dispute.
The National Commission on ICCs/Ps NCIP through its regional
offices shall have jurisdiction over all claims and disputes involving
ICCs/Ps, provided, however, that no such dispute shall be brought to the
NCIP unless the parties have exhausted all remedies provided under
their customary laws to settle the dispute as certified to by the Council
of Elders/Leaders who participated in the attempt at such settlement.
Decisions of the NCIP shall be appealable to the Court of Appeals by way of a petition
for review.

SEC. 408. Subject Matter for Amicable Settlement; Exception

Thereto. The lupon of each barangay shall have the authority to bring
together the parties actually residing in the same city or municipality for
amicable settlement of all disputes except:
(a)

Where one party is the government or any subdivi sion or

instrumentality thereof;

(b)

Where one party is a public officer or employee, and the dispute

relates to the performance of his official functions;

(c)

Offenses punishable by imprisonment exceeding one (1) year or a

fine exceeding Five thousand pesos (P5,000.00);

(d)

Offenses where there is no private offended party;

(e)

Where the dispute involves real properties located in different

cities or municipalities unless the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;

(f)

Disputes involving parties who actually reside in barangays of

different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an appropriate
lupon;and

(g)

Such other classes of disputes which the President may determine

in the interest of justice or upon the recommendation of the
Secretary of Justice.

The court in which non-criminal cases not falling within the

authority of the lupon under this Code are filed may, at any time before
trial, motu proprio refer the case to the lupon concerned for amicable
settlement.

SEC. 412. Conciliation.

(a)

In offenses cognizable by inferior courts, the complaint or

information is filed directly with said courts, or the complaint is filed
with the fiscal. However, in Metro Manila and other chartered cit ies, the
complaint may be filed only with the fiscal.
It may, however also be noted that under the Katarungan
Pambarangay Law while the dispute is under mediation conciliation, or
arbitration, the prescriptive periods for offenses and cause of action
under existing laws shall be interrupted upon filing of the complaint with
punong barangay.

However, under Republic Act No. 837, the ICCs/Ps shall have the
right to use their own commonly accepted justice systems, conflict
resolution institutions, peace building processes or mechanisms and
other customary laws and practices within their respective communities
and as may be compatible with the national legal system and with
internationally recognized human rights.

Condition Precedent to Filing of Case

The Local Government Code of 1991 which took effect on
January 1, 1992, expressly repealed Presidential Decree No. 1508, otherwise known as the Katarungang Pambarangay Law.

The appropriate officer may be the fiscal or the municipal circuit

trial court.
The criminal action is commenced when the complaint or
information is filed in court.

The customs and traditions of indigenous cultural communities

shall be applied in settling disputes between members of the
cultural communities.

The Civil Law rules on prescription is applicable to criminal

municipal

"institution" and the

EVEN

Exceptions: Unless otherwise provided by special laws (Act

3326) includes violations of municipal ordinance) Prescription
Commences from commission or discovery until institution of judicial
proceedings.

It provides among others that "violations penalized by municipal

ordinances shall prescribe after two months."

Subsequently, however, the offenses exclusively triable by

municipal courts were increased to those punishable with imprisonment
of not exceeding four years and two months and/or a fine ofP4.000.00
and were further increased to those punishable with imprisonment not
exceeding six (6) years irrespective of the amount of the fine.

INTERRUPTED

(b)

The prescriptive periods shall resume upon receipt by the

complainant of the complaint or the certificate or repudiation or of the
certification to file action issued by the lupon or pangkat secretary:

Pre-condition to filing of complaint in court. No complaint,

petition, action, or proceeding involving any matter within the
authority of the lupon shall be filed or instituted directly in court
or any other government office for adjudication, unless there has
been a confrontation between the parties before the Lupon
chairman or the pangkat, and that no conciliation or settlement
has been reached as certified by the Lupon secretary or pangkat
secretary as attested to by the Lupon chairman or pangkat
chairman or unless the settlement has been repudiated by the
parties thereto.
Where parties may go directly to court. The parties may go
directly to court in the following instances:
(1)
(2)
(3)

Provided, however, That such interruption shall not exceed sixty

(60) days from the filing of the complaint with the punong barangay
(4)
And is interrupted even if the case filed is not within the
jurisdiction of the court.
(c)

Where the accused is under detention;

Where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings;
Where actions are coupled with provisional remedies such
as preliminary injunction, attachment, delivery of personal
property, and support pendente life; and
Where the action, may otherwise, be barred by the statute
of limitations.

Conciliation among members of indigenous cultural communities.

SEC. 2.
The Complaint or Information
Criminal actions must be commenced in the name of the People
of the Philippines. But the defect is merely of form and curable at any
stage of the trial.
SEC. 3.
Complaint Defined
Who May File Complaint
a.

The offended party.

b.

Any peace officer.

c.

Other public officer charged with the enforcement or execution of

the law violated.
The provincial fiscal is not among the three.
The information filed by him which
proceeding cannot be considered as a complaint.

instituted

the

a motion to quash on that ground has been denied; and

1)
2)

Meaning of the term "offended party." The person

actually injured and whose feeling is offended.

Justice Davide, Jr., citing Section 12, Rule 110 refers to an "offended
party" in the commission of a crime, public or private, as the party to
whom the offender is civilly liable in light of Article 100 of the Revised
Penal Code that "every person criminally liable is also civilly liable.

Invariably then, the private individual to whom the offender

is civilly liable is the offended party.
In bigamy both the first and second spouses may be the
offended parties depending on the circumstances
3)

d.

The right to commence criminal prosecution is confined to

representatives of the government and persons injured;
otherwise, it shall be dismissed.

But One who is not the offended party file a complaint for
preliminary investigation.
Unless the offense subject of the complaint is one that
cannot be prosecuted de oficio, any competent person may file a
complaint for preliminary investigation.
As a general rule, a criminal action is commenced by a
complaint or information, or both of which are filed in court.
If a complaint is filed directly in court, the same must be
filed by the offended party and in case of an information, the
same may be filed by the fiscal. However, a "complaint" filed with
the fiscal prior to judicial action may be filed by any person.

e. Private persons may denounce a violation of banking laws.

A complaint with the fiscal prior to a judicial action may
be filed by any person.
f.

A criminal action cannot be instituted against a juridical person.

g.

To subscribe and swear to criminal complaint is not ministerial.

But the absence of an oath does not invalidate the
complaint.
Unless the complaint charged is a private offense.

h.

The right to file complaint is personal and abated upon death.

MAY INJUNCTION ISSUE TO RESTRAIN CRIMINAL PROSECUTION

The general rule is that criminal prosecution may not be
restrained or stayed by injunction, preliminary or final.
Public interest requires that criminal acts be immediately
investigated and prosecuted for the protection of society.
There are, however, exceptions, among which are:
a.
b.

To afford adequate protection to the constitutional rights of the

accused;
When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;

c.

When there is a prejudicial question;

d.

When the acts of the officer are without or in excess of authority;

e.

Where the prosecution is under an invalid law, ordinance or

regulation;

f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

h.

Where it is a case of persecution rather than prosecution;

i.

Where the charges are manifestly false and motivated by the lust
for vengeance;

j.

k.

A widow, however, maybe considered an offended

party within the meaning of the applicable rules of court
entitled to file a complaint for the murder of her husband.2

When there is clearly no prima facie case against the accused and

Preliminary injunction has been issued by the Supreme Court to

prevent the threatened unlawful arrest of petitioners.
SEC. 4.
Information defined
Distinguish Information from Complaint

As distinguished from information, a complaint is:

a.
b.
c.

Executed by a private party, etc.;

Supported by oath of the complainant; and
Need not necessarily be filed with the court.

An information not properly signed cannot be cured by silence,

acquiescence or even by express consent.
It must be filed with the court, otherwise it is not an information.
SEC. 5.
Who must prosecute criminal actions
Under the 1985 amendments, the following sentences were added to the first
paragraph of Sec. 4 of the old Rule 110, to wit:

"However, in the Municipal Court or Municipal Trial Courts when there is

no fiscal available, the offended party, any peace officer or public officer
charged with the enforcement of the law violated may prosecute the
case.

EFFECT OF LACK OF INTERVENTION BY FISCAL IN TRIAL OF A

CRIMINAL CASE
Before the 1985 amendment, the Supreme Court, in Garcia v.
Domingo, citing Cariaga v. Justo, held that the absence of the Assistant
Fiscal is not a jurisdictional defect but the court should have cited the
public prosecutor to intervene.
The rule was modified in People v. Beriales where it was held
that although the Fiscal turns over the active conduct of the trial to the
private prosecutor, he should be present during the proceedings

In the present case, although the private prosecutor had

previously been authorized by the special counsel Rosario R. Polines to
present the evidence for the prosecution, nevertheless, in view of the
absence of the City Fiscal at the hearing on December 13, 1974, it
cannot be said that the prosecution of the case was under the con trol of
the City Fiscal.
It follows that the evidence presented by the private prosecutor
at said hearing could not be considered as evidence for the plaintiff, the
People of the Philippines.
There was, therefore, no evidence at all to speak of which could
have been the basis of the decision of the trial court.

"In case the offended party dies or becomes incapacitated before she could
file the complaint and has no known parents, grandparents or guardian, the State shall
initiate the criminal action in her behalf. This is based on the doctrine of parens
patriae."

Rape is now a crime against person and consequently can be

prosecuted even without a complaint filed by the offended party.

The decision appealed from was set aside and the case
remanded to the trial court for another arraignment and trial.

In the third paragraph of Section 4 of the old Rule 110, the folowing was added:

[A.M. No. 02-2-07-SC. April 10, 2002]

RE: PROPOSED AMENDMENTS TO SECTION 5, RULE 110 OF THE
REVISED RULES OF CRIMINAL PROCEDURE
Acting on the Memorandum dated 2 February 2002 of Court administrator
Presbitero J. Velasco, Jr. submitting for this Court's consideration and approval the
proposed amendment to Sec. 5, Rule L10 of the Revised Rules of Criminal Procedure,
the Court Resolved to APPROVE the amendment to Sec. 5, Rule 110 so as to read as
follows:
"Section 5. Who must prosecute criminal actions. All criminal actions
either commenced by complaint or by information shall be prosecuted under the
direction and control of a public prosecutor.
In case of heavy work schedule of the public prosecutor or in the event of
lack of public prosecutors, the private prosecutor may be authorized in writing by the
Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case
subject to the approval of the court.
Once so authorized to prosecute the criminal action, the private prosecutor
shall continue to prosecute the case up to the end of the trial even in the absence of a
public prosecutor, unless the authority is revoked or otherwise withdrawn.
This amendment to Rule 110 shall take effect on the first day of May 2002
following its publication in two newspapers of general circulation on or before 30 April,
2002.
The amendment inadvertently failed to reproduce the statement that:
However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the
prosecutor assigned thereto or to the case is not available, the offended party, any
peace officer, or public officer charged with the enforcement of the law violated may
prosecute the case.

In appeals before the Court of Appeals or to the Supreme Court

either by petition for review or certiorari, the Solicitor General is the sole
representative of the People.
Service thru the Provincial Prosecutor is inefficacious and shall
be sufficient ground for dismissal on the petition as provided in section
3, Rule 46.

Thus, in the case of People v. Munar, the Court upheld the right
of the private prosecutor therein to conduct the examination of the
witnesses because the government prosecutors were present at the
hearing; hence, the prosecution of the case remained under their
supervision and control.

Moreover, as aptly observed by the Solicitor General, "to permit

such prosecution of a criminal case by the private prosecutor with the
fiscal in absentia can set an obnoxious precedent that can be taken
advantage of by some indolent members of the prosecuting arm of the
government as well as those who are oblivious of their bounden duty to
see to it not only that the guilty should be convicted, but that the
innocent should be acquitted a duty that can only be effectively and
sincerely performed if they actively participated in the conduct of the
case, especially in the examination of the witnesses and the
presentation of documentary evidence for both parties.

This authority ceases upon actual intervention of the fiscal or upon elevation
of the case to the Regional Trial Court. This is based on the Resolu tion of the Supreme
Court in People v. Beriales."

Notice, however, given to the fiscal is notice to the private

prosecutor.
The authority, however, of the provincial prosecutor to appeal
for the People of the Philippines is confined only to the proceedings
before the trial court.

Fiscal's Discretion in Prosecution

Prior to the filing of a case in court:
a.

A prosecuting attorney cannot be compelled to file a particular

criminal information.

b.

The Court cannot interfere with the Fiscal's discretion and control
of criminal prosecution.

c.

The Court cannot compel the fiscal to prosecute or file information

within a certain period of time.

It is the rule that a fiscal by the nature of his office is under no

compulsion to file a particular criminal information where he is not
convinced that he has evidence to support the allegations thereof.
Although this power and prerogative of the Fiscal to determine
whether or not the evidence at hand is sufficient to form a reasonable
belief that a person committed an offense, is not absolute and subject to
judicial review, it would be embarrassing for the prosecuting attorney to
be compelled to prosecute a case when he is in no position to do so,
because in his opinion, he does not have the necessary evidence to
secure a conviction, or he is not convinced of the merits of the case.
The better procedure would be to appeal the Fiscal's decision to
the Ministry of Justice and/or ask for a special prosecutor.
The failure of the Fiscal to include the other public officials who
appear to be responsible for the offense charged as co-accused in the
information does not vitiate the validity of the information since the
matter of prosecuting witnesses for the People is a prerogative of bhe
prosecuting fiscal.

The same principle was not, however, observed in People v.

Malinao, where the Supreme Court did not consider the absence of the
fiscal prejudicial to the accused "for only Dr. Nicanor L. Tansingco was
presented to testify on his autopsy report on the deceased Manang.

The manner by which the prosecution of a case is handled is

within the sound discretion of the prosecutor and the non-inclusion if
other guilty persons is irrelevant to the case against the accused.

Since no objection was interposed by appellant's counsel, either

to Dr. Tansingco's competency or his post mortem findings, the doctor's
testimony was dispensed with.

The prosecutor cannot be compelled to include in the

information, a person against whom he believes no sufficient evidence
of guilt exists.

The defense likewise waived the fiscal's presence on that date."

In Bravo v. Court of Appeals The proceedings was held to be
valid even without the physical presence of Fiscal as distinguished from
Beriales case, where no Fiscal appeared to prosecute.
Here, the Fiscal appeared but left the prosecution to the private
prosecutor under his supervision and control.
The Court noted in a subsequent case that the public prosecutor
may turn over the actual prosecution of the criminal case, in the
exercise of his discretion, but he may, at any time, take over the actual
conduct of the trial.
However, it is necessary that the public prosecutor be present
at the trial until the final termination of the case; otherwise, if he is
absent, it cannot be gainsaid that the trial is under his supervision and
control.

While the prosecuting officer is required by law to charge all

those who, in his opinion, appear to be guilty, he nevertheless cannot
be compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists.
The appreciation of the evidence involves the use of discretion
on the part of the prosecutor.
The decision of the prosecutor may be reversed or modified by
the Secretary of Justice or in special cases by the President of the
Philippines.
But even the Supreme Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to
support at least aprima facie case.
The courts try and/or convict the accused but as a rule have no
part in the initial decision to prosecute him.

The absence, however, of a prosecutor cannot be raised by an

accused to invalidate the testimony of a state witness if he cannot prove
personal prejudice.

The possible exception is where there is an unmistakable

showing of a grave abuse of discretion that will justify judicial intrusion
into the precincts of the executive.

This does not, however, mean that the persons mentioned therein may no
longer prosecute the case under the conditions mentioned in the old rule.

Necessity of Service to Government Counsel

But in such a case, the proper remedy to call for such exception
is a petition for mandamus, not certiorari or prohibition.

The amendment was merely intended to regulate the appearance of the

private prosecutor and stress the direction and control of the public prosecutor in the
prosecution of criminal cases.

Failure to serve pleadings and orders upon government counsel

renders the court orders issued uponsuch petitions or motions of an
accused as void.

This authority shall cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court.

Moreover, before resorting to this relief, the party seeking the

inclusion of another person as a co-accused in the same case must first

avail itself of other adequate remedies such as the filing of a motion for
such inclusion.
A case dismissed before arraignment maybe refiled.
FULL CONTROL BY THE COURT ONCE INFORMATION FILED IN
COURT

In the meantime, despite the appeal, the prosecutor filed the

information for homicide, and despite the objections of the offended
party on the ground that they have appealed the resolution of the Fiscal
to the Secretary of Justice, on the ground that the crime committed was
murder, the RTC refused to defer the arraignment, and allowed the
accused to post bail in the sum of P20,000 each.
The accused were arraigned and entered a plea of not guilty.

However, in cases where the information had already been filed

in court, the latter acquires jurisdiction over them.
Otherwise stated, the jurisdiction of the court become vested
upon the filing of the information and, once acquired, its jurisdiction
continues until the termination of the case.
Where the information had already been filed in court, it should
therefore dispose of them, one way or the other, resolving all motions
brought before it including motions to dismiss, filed by the Fiscal, or
deciding the cases on the merit.
The prosecuting fiscal has no more control over said cases, the
same having been transferred to the court.
The situation is akin to the pronouncement made in Lansang u.
Garcia, that whenever a formal complaint is presented in court against
an individual, the court steps in and takes control thereof until the same
is finally disposed of.
However, the matter of instituting an information should be
distinguished from a motion by the fiscal for the dismissal of a case
already filed in court.
The judge may properly deny the motion where, judging from
the record of the preliminary investigation, there appears to be
sufficient evidence to sustain the prosecution.
This is, as it should be, because the case is already in court and,
therefore, within its discretion and control.
In the landmark case ofCrespo u. Mogul, the Supreme Court,
sifter a review of past precedents held:
"The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court, any disposition of the case as its dismissal
or the conviction or acquittal of the accused rests in the sound
discretion of the Court.
Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court, he cannot impose his opinion on
the trial court.
The Court is the best and sole judge on what to do with the case before it.
The determination of the case is within its exclusive jurisdiction and
competence.
A motion to dismiss the case filed by the Fiscal should be addressed to the
Court who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
Thus, it is now settled that once a complaint or information is filed in court
any disposition of the case as to its dismissal or the conviction or the acquittal of the
accused rests in the sound discretion of the court.
A motion to dismiss the case filed by the fiscal should be addressed to the
court, who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instruction of the
Secretary of Justice who reviewed the records of the investigation."

THE PRINCIPLE WAS FURTHER STRESSED IN DIMATULAC

V. VILLON
In this case, the accused were charged with murder before the
Municipal Court which found a probable cause for murder and issued
warrants for the arrest of the accused without bond, after which the
records were forwarded to the Provincial Fiscal.
Without the accused having been arrested, the Fiscal conducted
a reinvestigation and received the evidence of the accused, found the
case to be homicide.
The offended party appealed to the Secretary of Justice.

The Secretary of Justice found the case to be murder, but

withdrew its recommendation to amend the information to murder upon
learning the accused have already been arraigned.
The Court found the Fiscal and Judges concerned to have
gravely abused their discretion in not deferring the arraignment pending
disposition of the appeal to the Secretary of Justice.
The Court should have suspended the arraignment of this
information for homicide and await resolution on the petition for review
to DOJ on the ground that the crime is for murder.
Otherwise, the arraignment may be set aside, and information
amended if DOJ finds that the proper information should be murder.
MOTION FOR REINVESTIGATION TO BE ADDRESSED TO COURT
In Velasquez v. Tuquero, it was held that a motion for
reinvestigation should, after the court had acquired jurisdiction over the
case, be addressed to the trial judge and to him alone.
Neither the Secretary of Justice, the State Prosecutor, nor the
fiscal may interfere with the judge's disposition of the case, much less
impose upon the court their opinion regarding the guilt or innocence of
the accused, for the Court is the sole judge of that.
Thus, should the fiscal find it proper to conduct a reinvestigation
of the case, the permission of the court must be secured.
After such reinvestigation, the finding and recommendations of
the fiscal should be submitted to the court for appropriate action.
The Supreme Court clarified that while the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be
filed in court, once the case had already been brought to the Court
whatever disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the court.
The only qualification is that the action of the court must not
impair the substantial rights of the accused or the right of the people to
due process.
The Court has the final say on any subsequent disposition or
action, since the case is brought before it which will not be disturbed by
the appellate court unless it is shown that the trial court acted without
jurisdiction or in excess of its jurisdiction or otherwise committed a
grave abuse of discretion amounting to such lack or excess of
jurisdiction.

He is, after all, in control of the prosecution of the case and he

may have his own reasons why the case should not be dismissed.
It is only after hearing the prosecuting fiscal's view that the
Court should exercise its exclusive authority to continue or dismiss the
case.
The Parameters of the Court's Control
The Supreme Court,
there is nothing in Crespo
cognizance of an appeal, by
a criminal case from an
prosecutor.

clarified in Marcelo v. Court of Appeals, that

v. Mogul, which bars the DOJ from taking
way of petition for review, by an accused in
unfavorable ruling of the investigating

Moreover, where the DOJ had already given due course to the
petitioner's petition for review, it was premature for respondent judge to
deny the motions to suspend proceedings and to defer arraign ment on
the ground that "since the case is already pending for trial, to follow
whatever opinion the Secretary of Justice may have on the matter would
undermine the independence and integrity of this court.
Thus, where the judge granted the motion for reinvestigation
and directed the Office of the Provincial Prosecutor to conduct the
reinvestigation, the former was deemed to have deferred to the
authority of the prosecution arm of the Government to consider the socalled new relevant and material evidence and determine whether the
information it had filed should stand.
Having done so, it behooved the judge to wait for a final
resolution of the incident.
VALID BASIS OF JUDGE'S FINAL ACTION WHERE FISCAL STANDS
ON INFORMATION
The findings and conclusion of the Provincial Prosecutor, being
the final disposition on the reinvestigation, should be the sole and only
valid basis of the judge's final action (not that of the Assistant Provincial
Prosecutor).
Where the Provincial Prosecutor to which the judge had deferred
the matter for reinvestigation, had finally resolved to stand on the
information and to present evidence to prove the guilt of the accused
for the crime charged, the judge did not have the option to dismiss the
case on the basis of the disapproved resolution of the Assistant
Provincial Prosecutor.
The only option of the judge was to proceed with the
arraignment of the accused and, thereafter, conduct a pre-trial and trial
on the merits, should he enter a plea of not guilty.
It does not, however, necessarily follow that the court should
merely adopt the recommendation of the Prosecutor.
In Montesa, the stand of the prosecution is to maintain the
information, in which case there is nothing more for the court to do but
to proceed with the case.

The complaint cannot be withdrawn by the Fiscal without the

court's consent.

The situation is different if the motion of the fiscal is for the

dismissal or withdrawal of the information.

The provincial fiscals are not clothed with power, without the
consent of the court, to dismiss or nolle prosequi criminal actions
actually instituted and pending further proceedings.

ULTIMATE TEST OF TRIAL COURT'S INDEPENDENCE IS WHERE

FISCAL FILES A MOTION TO DISMISS

Fiscal Entitled to be Heard on Motion to Dismiss

However, while the trial court is the sole judge on whether a
criminal case should be dismissed (after the complaint or information
has been filed in court) still, any move on the part of the complainant or
offended party to dismiss the criminal case, even if without objection of
the accused should first be referred to the prosecuting fiscal for his own
view on the matter.

What is imperatively required is the trial judge's own

assessment of such evidence, it not being sufficient for the valid and
proper exercise of judicial discretion merely to accept or reject the
prosecution's word for its supposed insufficiency or to simply rely on
Crespo v. Mogul.
In the absence of a finding of grave abuse of discretion, the
court's bare denial of a motion to withdraw information pursuant tc the
Secretary's resolution is void.
FISCAL MAY BE COMPELLED TO PROSECUTE CASES ALREADY FILED

It merely advised the DOJ to, "as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal,
when the complaint or information has already been filed in court."

COMPLAINT CANNOT BE WITHDRAWN BY FISCAL WITHOUT

COURT'S CONSENT

The power to dismiss is vested solely in the court, i.e., the

presiding judge.
See however, Galvez v. Court of Appeals, upholding the right of
the prosecution to withdraw the information for homicide, the evident
purpose was to refile a case of murder against the same accused before
arraignment even without notice and hearing.

no sufficient evidence against the accused, and this conclusion can be

arrived at only after an assessment of the evidence in the possession of
the prosecution.

Notwithstanding his personal convictions or opinions, the fiscal

must proceed with his duty of presenting evidence to the court to
enable the court to arrive at its own independent judgment as to the
culpability of the accused.
The fiscal should not shirk from his responsibility much less
leave the prosecution of the case at the hands of a private prosecutor.
At all times, the criminal action shall be prosecuted under his
direction and control.
Otherwise, the entire proceedings will be null and void.
In the trial of criminal cases, it is the duty of the public
prosecutor to appear for the government "since an offense is an outrage
to the sovereignty of the State."
This is so because "the prosecuting officer is the representative
not of an ordinary party to a controversy but of a sovereignty where the
obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in criminal prosecution is
not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense, the servant
of the law, the two-fold aim of which is that guilt shall not escape or
innocence suffers.
Accordingly, if the fiscal is not at all convinced that a prima
facie case exists, he simply cannot move for the dismissal of the case
and, when denied, refuse to prosecute the same.
He is obliged by law to proceed and prosecute the criminal
action.
He cannot impose his opinion on the trial court.
At least what he can do is to continue appearing for the
prosecution and then turn over the presentation of evidence to another
fiscal or a private prosecutor subject to his direction and control.
Where there is no other prosecutor available, he should proceed
to discharge his duty and present the evidence to the best of his ability
and let the court decide the merits of the case on the basis of the
evidence adduced by both parties.
The supervision and control of the prosecutor extends to the
civil liability instituted with the criminal action if it was not filed
separately, reserved or there is no private prosecutor who intervened.
DEVELOPMENTS FROM CRESPO TO DIMATULAC:
a.

Distinction between control of prosecution and control of court

I.

The Supreme Court stressed that the real and ultimate test of
the independence and integrity of the trial court is not the filing of the
motions to suspend proceedings and defer arraignment at that stage of
the proceedings but the filing of a motion to dismiss or to withdraw the
information on the basis of a resolution of the petition for review
reversing the Joint Resolution of the investigating prosecutor.
Before that time, the pronouncement in Crespo u. Mogul, that
"once a complaint or information is filed in Court, any disposition of the
case as its dismissal or the conviction of the accused or acquittal of the
accused rests in the sound discretion of the court," did not yet become
relevant or applicable.
However, once a motion to dismiss or withdraw the information
is filed, the trial judge may grant or deny it, not out of subservience to
the Secretary of Justice, but in faithful exercise of judicial prerogative.
The trial judge must himself be convinced that there was indeed

Control by Prosecution
1.
2.
3.
4.

II.

What case to file;

Whom to prosecute;
Manner of prosecution; and
Right of Prosecution to Withdraw information before
arraignment even without notice and hearing. There
must be leave of court after prior notice and hearing.

Control by Court Once Case is Filed

1.
2.
3.
4.
5.

Suspension of Arraignment;
Reinvestigation;
Prosecution by Fiscal;
Dismissal; and
Downgrading offense or dropping of accused even
before plea.

III. Limitations on Control by Court

1.

Prosecution entitled to notice of hearing;

2.

Court must await result of petition for review;

3.

Prosecution's stand to maintain prosecution should be

respected by court;

4.

Ultimate test of court's independence is where fiscal

files motion to dismiss or to withdraw information;

5.

Court has authority to review (power of Judicial

Review)

Such condition has been imposed out of consideration for the

offended women and her family who might prefer to suffer the outrage
in silence rather than go through with the scandal of a public trial.
Thus, while the complaint filed by a mental retardate may have
been technically defective in the sense that complainant was incompetent, this defect has been cured when complainant's brother
Pernando Alcala took the witness stand for the prosecution.
The brother's testimony shows that consent and willingness of
the family of the complainant, who can not give her consent obviously,
to have the private offense committed against the latter publicly tried.

victim in the aforesaid offenses of seduction, abduction, [rape] and acts

of lasciviousness, in default of her parents, grandparents or guardian,
such amendment did not include the crimes of adultery and
concubinage.
In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
OFFENDED PARTY IN ADULTERY MUST HAVE THE STATUS,
CAPACITY AND LEGAL REPRESENTATION AT THE TIME OF FILING
OF ACTION FOR ADULTERY
Where the complainant had already been divorced, he can no
longer file the complaint. Said the Supreme Court:

Substantially, this is what is required by the rules.

Secretary's recommendation and reject it if
there is grave abuse of discretion.
*See, however, Sec. ll(c), Rule 116,
Suspension of arraignment does not exceed sixty (60)
days.

Evidently, by undergoing trial, the family of complainant chose

to denounce the injustice committed against the latter in public and
thus agreed to bear the personal effects of said exposure.
Undoubtedly, therefore, the trial court had jurisdiction to try the
case.

The Resolution of the Secretary of Justice may

be appealed to the Office of the President in offenses
punishable by death or reclusion perpetua.
6.

To reject or grant motion to dismiss court must make

own independent assessment of evidence.

7.

Judgment is void if there is no independent

assessment and finding of grave abuse of discretion.

CRIMES PROSECUTED UPON COMPLAINT OF OFFENDED PARTY

The rule on crimes that must be prosecuted upon complaint
filed by the offended party may be classified into three categories:
a.
b.
c.

In crimes of adultery and concubinage;

In offenses of seduction, abduction, or acts of lascivious-ness;
Criminal actions for defamation which consist in the imputation of
an offense mentioned above.

Rape was excluded as a private crime in view of R.A. No. 8353,

the Anti-Rape Law of 1997 which took effect on October 22, 1997,
reclassifying rape as a crime against person and is now a "public crime."

Compliance with Rule Is Jurisdictional

While the complaint required in said Art. 344 is merely a
condition precedent to the exercise by the proper authorities of the
power to prosecute the guilty parties, and such condition has been
imposed out of consideration for the offended woman and her family
who might prefer to suffer the outrage in silence rather than go through
with the scandal of a public trial.
Compliance with Rule 110, Section 5, is Jurisdictional and not
merely a formal requirement.
Under Article 344 of the Revised Penal Code, the crime of
adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended
spouse.
It has since long been established, with unwavering consistency,
that compliance with this rule is a Jurisdictional, and not merely a formal
requirement.
While in point of strict law, the jurisdiction of the court over the
offense is vested in it by the Judiciary Law, the requirement for a sworn
written complaint is just as Jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding and without which
the Court cannot exercise its jurisdiction to try the case.

Concept of Private Crimes

MEANING OF TERM "JURISDICTIONAL"
The term "private crimes" in reference to felonies which cannot
be prosecuted except upon complaint filed by the aggrieved party, is
misleading.
Far from what it implies, it is not only the aggrieved party who is
offended in such crimes but also the State.
Every violation of penal laws results in the disturbance of public
order and safety which the State is committed to uphold and protect.
If the law imposes the condition that private crimes like adultery
shall not be prosecuted except upon complaint filed by the offended
party, it is, "out of consideration for the aggrieved party who might
prefer to suffer the outrage in silence rather than go through the
scandal of a public trial."
Once a complaint is filed, the will of the offended party is
ascertained and the action proceeds just as in any other crime.
This is shown by the fact that after filing a complaint, any
pardon given by the complainant to the offender would be unavailing.
It is true, the institution of the action in so-called private crimes
is at the option of the aggrieved party.
But it is equally true that once the choice is made manifest, the
law will be applied in full force beyond the control of, and in spite of the
complainant, his death notwithstanding.
Purpose of Rule
The complaint required (in Article 344 of the Revised Penal
Code) was not enacted for the specific purpose of benefitting the
accused, but is a condition precedent to the exercise by the proper
authorities of the power to prosecute the guilty parties.

It was explained in People v. Tanada (supra), that this provision

does not determine, however, the jurisdiction of our courts over the
offenses therein enumerated.
It could not affect said jurisdiction, because the same is
governed by the Judiciary Act of 1948, not by the Revised Penal Code,
which deals primarily with the definition of crimes and the factors
pertinent to the punishment of the culprit.
When it is said that the requirement in Article 344 that there
should be a complaint of the offended party or his relative is
Jurisdictional, what is meant is that it is the complaint that starts the
prosecutory proceeding.
It is not the complaint which confers jurisdiction in the court to
try the case.
The Court's jurisdiction is vested in it by the Judiciary Law.
IN PROSECUTIONS FOR ADULTERY AND CONCUBINAGE, THE
PERSON WHO CAN LEGALLY FILE THE COMPLAINT SHOULD BE
THE OFFENDED SPOUSE, AND NOBODY ELSE
Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of
adultery and concubinage by the parents, grandparents or guardian of
the offended party.
The so-called exclusive and successive rule in the prosecution of
the first four offenses above mentioned do not apply to adultery and
concubinage.
It is significant that while the State, as parens patriae, was
added and vested by the 1985 Rules on Criminal Procedure with the
power to initiate the criminal action for a deceased or incapacitated

Corollary to such exclusive grant of power to the offended spouse to

institute the action, it necessarily follows that such initiator must have
the status, capacity or legal representation to do so at the time of the
filing of the criminal action.
This is a familiar and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of
the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal
cases does not mean that the same requirement and rationale would not apply.
Understandably, it may not have been found necessary since criminal actions
are generally and fundamentally commenced by the State, through the People of the
Philippines, the offended party, being merely the complaining witness therein.
However, in the so-called "private crimes," or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of such genre, the
offended spouse assumes a more predominant role since the right to commence the
action, or to refrain therefrom, is a matter exclusively within his power and option.
In these cases, therefore, it is indispensable that the status and capacity of
the complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist at the time he initiates
the action.
It would be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof, where such capacity or
status existed prior to but ceased before, or was acquired subsequent to but did not
exist at the time of, the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without the legal
capacity to do

Exclusive Right of Offended Party When of Age

If the offended party is of age, the right to file the complaint is
exclusive and successive. None of these persons has authority to
proceed if there is any other person previously mentioned therein with
legal capacity to appear and institute an action.
Where, however, the victim who was also of age is incapacitated
by reason of insanity or physical incapacity, the complaint filed by the
father is valid.
OVERRIDING CONSIDERATION
PLIANCE WITH RULE

IN

DETERMINATION

OF

COM-

The overriding consideration in determining the issue of whether

or not the condition prescribed in Article 344 of the Revised Penal Code
has been complied with is the interest of the aggrieved party to seek
judicial redress for the affront committed.
DEATH OF COMPLAINANT DURING PENDENCY OF CASE DOES
NOT EXTINGUISH CRIMINAL LIABILITY
The death of the complainant during the pendency of the case is
not a ground for extinguishment of criminal liability whether total or
partial.
DEATH OF COMPLAINANT BEFORE FILING OF CASE IN COURT
The fact that before a criminal information for adultery could be
filed, the offended party who had already filed a sworn complaint with
the fiscal died, is not sufficient justification for dismissal of the
information, the desire of the offended party to bring his wife and the
alleged paramour to justice being too evident.
FILING OF VERIFIED STATEMENT BEFORE COURT SUFFICIENT
In a case where the Fiscal filed an Information charging the
accused with 'telling some people in the neighborhood that said Fausta
Bravo (a married woman) was a paramour of one Sangalang, a man not
her husband,' and Fausta Bravo did not subscribe to the complaint, the

Supreme Court held that the trial court had no jurisdiction over the case.
It ruled that since the accused imputed to Fausta Bravo the
commission of adultery, a crime which cannot be prosecuted de officio,
the Information filed by the Fiscal cannot confer jurisdiction upon the
court of origin.
It must be noted, however, that this error could be corrected
without sustaining the motion to quash and dismissing the case.
Pursuant to Section 1 of paragraph (a) of P.D. No. 77, under which the
Assistant City Fiscal conducted the preliminary investigation, the
statement of the complainant was sworn to before the aforesaid
Investigating Fiscal. Assuming that the recitals in said sworn statement
contain all those required of a complaint under the rules, a copy of said
verified statement of the complainant under the rules should be filed
with respondent court in order to comply with the requirements of
Article 360 of the Revised Penal Code; otherwise, the respondent Fiscal
should file with said court, a verified complaint of the offended party.
COMPLAINT FILED BY OFFENDED PARTY IN INFERIOR COURT
SUFFICIENT;
OFFENDED
PARTY
NEED
NOT
SUBSCRIBE
INFORMATION
In this case, the complaint for abduction with rape 'against Bulaong was
filed in the city court by the offended girl and her father. That complaint
was sworn to before the city judge. It was the basis of the preliminary
examination. The judge examined the witnesses under oath. The
examination was reduced to writing in the form of searching questions
and answers. On the basis of that examination, a warrant of arrest was
issued.
In his appeal, Bulaong contends through his counsel de officio that the lower
court did not acquire jurisdiction over the case because the information filed by the
city fiscal is fatally defective for not containing the verification required in Form 24 of
the Appendix to the Rules of Court.
The contention has no merit.
The forms prescribed in the Rules of Court "serve as mere illustrations."
Jurisdiction over the crime charged in this case is conferred by law, not by
the complaint or information which is merely the means by which jurisdiction is
invoked or which gives the court the occasion for exercising its jurisdiction.

INITIATION OF COMPLAINT IN FISCAL'S OFFICE IS SUFFICIENT

COMPLIANCE
A "Salaysay" or sworn statement of the offended party, which
prompted the Fiscal to con-duct a preliminary investigation and then to
file an information in court, is not the complaint contemplated/required
by Article 344 of the Revised Penal Code.
The Rule was modified in Valdepenas u. People, which held that
the complaint filed by the offended woman and her mother before the
Justice of the Peace Court and forwarded to the CFI of Cagayan, in which
the corresponding information for forcible abduction with rape was filed
and was considered as sufficient compliance with the law.
It is not necessary for the complainant to sign and verify the
information filed by the Fiscal.
The complaint adopted by the Fiscal and attached to and made
part of the corresponding information filed after investigation is
sufficient.
In People v. Sunpongco, the failure of the prosecution to formally
offer in evidence the sworn complaint of the offended party or the
failure to adhere to the rules is not fatal and does not oust the court of
its jurisdiction to hear and decide the case.
If the complaint is forwarded to the Court as part of the record
of the preliminary investigation of the case, the court can take judicial
notice of the same without the necessity of its formal introduction as
evidence of the prosecution.
Seduction, Abduction, Act of Lasciviousness
The right is exclusively and successively reposed in the offended
party, her parents or guardian in the order in which they are named.
This is out of consideration for the aggrieved party who might
prefer to suffer the outrage in silence rather than go through the
scandal of a public trial.
NO NEED TO FILE INFORMATION; FILING OF COMPLAINT IS
SUFFICIENT

In a case involving crimes against chastity, the prosecution may

be conducted by the fiscal on the basis of the complaint filed in the
inferior court. There is no need to file an information.

b.

A complaint must be filed by the legal guardian. An oath that he is

the guardian was held as sufficient.

c.

Where the complaint is for attempted rape, the city court has
jurisdiction to try the case for acts of lasciviousness, the crime
allegedly committed as per inquest fiscal's findings, though the
complainant did not sign a complaint for acts of lasciviousness,
attempted rape includes acts of lasciviousness.

Hence, the other contention of the accused that the information

should have been signed by the offended girl is wrong.
Article 344 of the Revised Penal Code, reproduced in Section 4,
Rule 110 of the Rules of Court, does not require that the offended girl in
a crime against chastity should sign the information filed by the fiscal.
Since the filing of a complaint for any of the offenses
enumerated in Article 344 of the Revised Penal Code, by the person or
persons mentioned therein is jurisdictional, the filing thereof is sufficient
to initiate a valid prosecution, and no information need be Sled any
longer by the Fiscal.

While the Fiscal should have prepared another complaint

for acts of lasciviousness, this is not jurisdictional the complaint
started the criminal action because a private crime can not be
prosecuted de officio.
d.

EFFECT OF VARIANCE BETWEEN COMPLAINT AND INFORMATION

AND THE EVIDENCE
A distinction should be made where there is a variance in the
allegations in the complaint of the manner the crime was committed
and the allegations in the information; and a variance between the
allegations in the information and the evidence adduced by the prosecution.
a.

b.

Where the complaint filed was for forcible abduction, while the
information filed by the Fiscal was for rape inasmuch as the crime
if rape is different from the crime of forcible abduction alleged in
the complaint, said complaint could not serve as a basis for the
court to acquire jurisdiction over the crime actually committed.
Where, however, the complaint was for rape, a change in the
manner of committing the crime of rape from that as alleged in
the complaint does not divest the court of its jurisdiction.
The power of jurisdiction of the court is not over the crime
of rape when committed on a minor and demented girl, but over
rape, irrespective of the manner in which the same may have
been committed.
The court, therefore, erred in holding that it had no
jurisdiction to try the crime charged in the information simply
because it charges the accused with having committed the crime
on a demented girl, instead of through the use offeree and
intimidation.
The right and power of the court to try the accused for the
crime of rape attaches upon the filing of the complaint, and a
change in the allegations thereof as the manner of committing
the crime should not operate to divest the court of the jurisdiction
it has already acquired.
The right or power to try the case should be distinguished
from the right of the accused to demand an acquittal unless it is
shown that he has committed the offense charged in the
information even if he be found guilty of another offense; in the
latter case, however, even if the court has no right to find the
accused guilty because the crime alleged is different from that
proved, it cannot be stated that the court has no jurisdiction over
the case.

c.

d.

Where the complaint signed by the complainant charged the

accused with abduction with rape detailed in her sworn state ment
which form part of the records of the preliminary investigation,
even if the body of the complaint does not specify the elements of
forcible abduction, if the information sufficiently charged the complex crime forcible abduction with rape, the court validly acquired
jurisdiction.
Where the information, however, charged the accused of rape by
force and intimidation, he cannot be convicted of rape on the
ground that the victim was raped while she was unconscious or
otherwise deprived of reason as it would violate his right to be
informed of the nature and cause of the accusation against him,
except when there is a failure to object thereto during the trial in
which case the accused may be convicted of the rape proved
even if committed in a manner different from that alleged in the
information.
Other Cases

a.

The father has no preferential right over the mother to file the
complaint.

e.

Where the accused is charged with rape committed thru force and
intimidation, he cannot be convicted of rape committed under
paragraph 2 of Article 335 when the woman is deprived of reason
or is otherwise unconscious.
In robbery with rape or rape with homicide, the complaint of
offended party is not essential.
Defamation

A published letter stating that a woman employee had "illicit

relationship with another who is the former's paramour" imputes
adulterous relationship between the two.
A prosecution for libel based thereon cannot be made without
the sworn complaint of the offended party.
Since the accused imputed the commission of adultery, a crime
which cannot be prosecuted de officio, the Information filed by the Fiscal
cannot confer jurisdiction upon the Court of origin.
The error may, however, be corrected without sustaining the
motion to quash and dismiss the case.
Where the statement of the complaint was sworn to before the
investigating fiscal; and the recitals in the sworn statement contain all
those required of a complaint under the rules, a copy of the verified
statement of the offended party may be filed in court
Thus, where the information was based on the criminal
complaint filed with the fiscal's office which conducted the corresponding preliminary investigation and the records conformably with the
procedure then in force was transmitted to the trial court, such cir cumstance does not deprive the court of its jurisdiction.
Imputing prostitution, does not indicate an adulterous act and
can be prosecuted de officio.
Where, however, in addition to allegedly calling the complainant
a whore, the private respondent is also charged in one information with
having described the former as a "paramour of my husband," this is a
clear imputation of adultery.
A paramour is "one who loves or is loved illicitly."
One taking the place without legal rights of a husband or wife.
A mistress, also called a lover, accordingly, that imputation is
covered by Rule 110.

to be set out in an information is to enable the accused to suitably pre pare his defense. He is presumed to have no independent knowledge of
the facts that constitute the ofiense.

adequately responded.
Under these conditions, the accused was fully apprised of the
accusation against him.

Matter of Evidence; Need Not be Averred

However, it is often difficult to say what is a matter of evidence,
as distinguished from facts necessary to be stated in order to render the
information sufficiently certain to identify the offense.
As a general rule, matters of evidence, as distinguished from
facts essential to the description of the offense, need not be averred.
For instance, it is not necessary to show on the face of an
information for forgery in what manner a person is to be defrauded, as
that is a matter of evidence at the trial.
Reasonable Certainty is Sufficient
Moreover, reasonable certainty in the statement of the crime
suffices.
All that is required is that the charge be set forth with such
particularity as will reasonably indicate the exact offense which the
accused is alleged to have committed and will enable him intelli gently
to prepare his defense, and if found guilty to plead her conviction, in a
subsequent prosecution for the same offense.
Effects of Fatally Defective Information
Conviction or acquittal under a fatally defective information for
want of certain essential allegation is not necessarily void when no
objection appears to have been raised at the trial and the fatal defect
could have been supplied by competent proof.
It was, however, held in Ilo, et al. v. Court of Appeals, that a
substantial defect in the information cannot be cured by evidence, for
that would jeopardize their right to be informed of, the true nature of
the offense they are charged.
The Supreme Court applied the case of People u. Austria, holding that an information which does not charge an offense at all cannot
be validated by the presentation of evidence. Said the Supreme Court:
"(t)he petitioner contends that under the allegation in the information
that the accused without authority of law, did then and there willfully,
unlawfully and feloniously have in his possession and under his custody
and control the firearms and ammunitions enumerated therein," the
prosecution may prove that the accused carried the firearms and
ammunitions outside of his residence. The contention is without merit.

The purpose and objective of the constitutional mandate are

discharged and satisfied.
The accused may not be said to be taken by surprise by the
failure of the information to state the age of the offended party, when
he had received the initiatory complaint where he was told how old the
offended party was.
Thus, even if the information did not allege that the victim was a
mental retardate which is an essential element of the crime of statutory
rape, or the element of force and intimidation or the age of the
complainant or the information merely states that petitioner was being
charged for the crime of "violation of R.A. No. 7610" with out citing the
specific sections alleged to have been violated the Court treated the
informations as merely defective and that the deficiency was cured
either because the complaint supplied the omission or by the failure of
the accused to assail the insufficiency of the allegations in the
Information and by competent evidence presented during trial, and the
accused cannot successfully invoke the defense that his right to be
informed is violated.
The Court did not consider the omissions sufficient to invalidate
the information, holding that the character of the crime is not
determined by the caption or preamble of the information nor from the
specification of the provision of law alleged to have been violated, as
they may be conclusions of law, but by the recital of the ultimate facts
and circumstances in the complaint or information.
The sufficiency of an information is not negated by an
incomplete or defective designation of the crime in the caption or other
parts of the information but by the narration of facts and circumstances
which adequately depicts a crime and sufficiently apprise the accused of
the nature and cause of.the accusation against him.
The information may not refer to specific section/s of R.A. No.
7610 alleged to have been violated by the petitioner, but it is all to
evident that the body of the information contains an averment of
the'acts alleged to have been performed by petitioner which unmis takably refers to acts punishable under Section 5 of R.A. No. 7610.
As to which section of R.A. No. 7610 is being violated by
petitioner is inconsequential.
What is determinative of the offense is the recital of the ultimate
facts and circumstances in the complaint or information.

As the court had stated in People v. Austria, the presentation of

evidence "cannot have the effect of validating a void information, or
proving an offense which does not legally exist.
The information was not merely defective but it does not charge
any offense at all.
Technically speaking,
contemplation of law."

that

information

does

not

exist

in

DEATH OF OFFENDED PARTY IN CASES OF LIBEL OR DEFAMATION

In an information for rape (committed before R.A. No. 7659)

without alleging the age or complainant, the accused was convicted of
statutory rape there being no objection to evidence or minority.

The death of offended party in a criminal case for libel or

defamation does not extinguish criminal liability of accused.

The information was not void but merely defective which is

curable by evidence admitted without objection.

Sufficiency of Allegations of Conspiracy

In our jurisdiction, * * * conspiracy can be alleged in the
Information as a mode of committing a crime or it may be alleged as
constitutive of the crime itself.
When conspiracy is alleged as a crime in itself, the sufficiency of
the allegations in the Information charging the offense is governed by
Section 6, Rule 110 of the Revised Rules of Criminal Procedure.
Following the stream of our own jurisprudence, it is enough to
allege conspiracy as a mode in the commission of the crime in either of
the following manner:
(1)

by the use of the word "conspire" or its derivatives or

synonyms, such as confederate, connive, collude, etc. or

(2)

by allegations of basic facts constituting the conspiracy in a

manner that a person of common understanding would know
what is intended, and with such precision as would enable the
accused to competently enter a plea to a subsequent indictment
based on the same facts

The Substantial Compliance Rule

SEC. 6.
Sufficiency of complaint or information
Time of the offense under the former rule was changed to DATE
of the offense.
All Elements of Crime Must be Alleged
It is fundamental that every element of which the offense is
composed must be alleged in the complaint or information.
What facts and circumstances are necessary to be stated must
be determined by reference to the definitions and the essentials of the
specific crimes.
The main purpose of requiring the various elements of a crime

It has been held that a complaint is under the Rules one of the
two charging instruments for the offense of which the accused was tried
and convicted here.
While the criminal action was instituted by the complaint of the
offended party, the information signed only by the fiscal ushered in the
formal trial process.

When Charged as a Mode of Committing the Crime

But both are accusations in writing against the accused and

serve the purpose of enabling him to take the necessary legal steps for
his defense.

The requirements of the sufficiency of the information are

different when conspiracy is not charged as a crime in itself but only as
a mode of committing the crime as in the case of Plunder consisting of
several predicate crimes.

What is important is that the information states that the

accused is being charged of an offense under R.A. No. 7610 based on
the complaint of the offended party, to which the accused had

There is less necessity of reciting its particularities in the

information because conspiracy is not the gravamen of the offense
charged.

constituting the offense.

The conspiracy is significant only because it changes the
criminal liability of all the accused in the conpsiracy and make them
responsible as co-principals regardless of the degree of their
participation in the crime.

This is essential to avoid surprise on the accused and to

afford him the opportunity to prepare his defense accordingly.

The liability of the conspirators is collective and each participant

will be equally responsible for the acts of the others.

To comply with these fundamental requirements of the

Constitution and the Rules on Criminal Procedure, it is imperative
for the specific statute violated to be designated or mentioned in
the charge.

The information must state that the accused have confederated

to commit the crime or that there has been a community of design, a
unity of purpose or an agreement to commit the felony among the
accused.
Such an allegation, in the absence of the usual usage of the
words "conspired" or the phrase "acting in conspiracy," must aptly
appear in the information in the form of definitive acts constituting
conspiracy.

This is no longer true.

b.

d.

e.

Where conspiracy exists and can rightly be appreciated, the

individual acts done to perpetrate the felony becomes of secondary
importance, the act of one being imputable to all the others.
Verily, an accused must know from the information whether he
faces a criminal responsibility not only for his acts but also for the acts
of his co-accused as well.

WHEN CONSPIRACY CHARGED AS A CRIME

When conspiracy is charged as a crime, the act of conspiring
and all the elements of said crime must be set forth in the complaint or
information.
For example, the crime of "conspiracy to commit treason" is
committed when, in time of war, two or more persons come to an
agreement to levy war against the Government or to adhere to the
enemies and to give them aid or comfort, and decide to commit it.
In embodying the essential elements of the crime charged, the
information must set forth the facts and circumstances that have a
bearing on the culpability and liability of the accused so that the
accused can properly prepare for and undertake his defense.
One such fact or circumstance in a complaint against two or
more accused persons is that of conspiracy.
Quite unlike the omission of an ordinary recital of fact which, if
not excepted from or objected to during trial, may be corrected or
supplied by competent proof
Need to Designate Statute Violated
a.

It is a constitutional right of any person who stands charged in a

criminal prosecution to be informed of the nature and cause of the
accusation against him.
Pursuant to the above, Section 6, Rule 110 of the Rules of
Court, expressly requires that for a complaint or information to be
sufficient, it must, inter alia, state the designation of the offense
by the statute, and the acts or omissions complained of as

Pursuant to Section 11 of the amendatory statute (The Death

Penalty Law), the death penalty may be imposed in rape cases under
the last paragraph of Article 335 of the Revised Penal Code, when the
rape is committed with any of the following attendant circumstances:

The Rule now requires aggravating circumstances must not only be proven
but it must also be alleged, otherwise, it should not be considered.

c.

When the rape is committed in full view of the husband, parent,

any of the children or other relatives within the third degree of
consangguinity.

Retroactive Application of Rule

When the victim is a religious or a child below seven (7) years old.
When the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.

Allegations prevail over designation of the offense in the

information for conviction of accused who may therefore be
convicted of a crime more serious than that named in the title or
preliminary part if such crime is covered by the facts alleged in
the body of the information and its commission is established by
the evidence.

f.

When committed by any member of the Armed Forces of the

Philippines or the Philippine National Police or any law enforcement agency.

g.

When by reason on the occasion of the rape, the victim has

suffered permanent physical mutilation.

To enable the court to acquire jurisdiction over his person and to

inform him of the facts.
Where the accused has been sued as John Doe in an informa tion
filed in due form, and after due investigation by the Fiscal, his identity
became known, his true name may be inserted without further need of
preliminary investigation where one had already been properly
conducted pursuant to the charter of Quezon City and the nature of the
crime is not changed.

The concurrence of the minority of the victim and her

relationship of the offender is a special qualifying circumstance which
should both be alleged and proved with certainty in order to warrant the
imposition of the death penalty.
In these eight (8) cases, complainant never said she was below
18 years of age when she was allegedly raped by her father on any of
the dates stated in the complaint.
R.A. No. 7659 (Death Penalty Law) Relationships which includes
step-daughter and minority in incestuous rape are in the nature of
qualifying circumstances, must be specifically alleged and proved to
warrant imposition of death penalty.
Omission cannot be cured by evidence.
Hence, penalty should only be reclusion perpetual
The twin circumstances of minority and relationship under
Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, are
in the nature of qualifying circumstances because they alter the nature
of the crime of rape and increase the penalty.

Verbal motion to correct spelling is sufficient.

Where the accused Roberto Cultura was indicted in the
information as "Jose" Cultura (his father's name), but it was clearly
proven that he was part of the group that killed the victim and did not
raise the question of his identity at the arraignment and acquiesced to
be tried under that name, he is deemed to have waived to raise the
question of his identity for the first time on appeal.
SEC. 8.
Designation of the offense
SEC. 9.
Cause of the accusation

As special qualifying circumstances they must be specifically

pleaded or alleged with certainty in the information; otherwise, the
death penalty cannot be imposed.

The rule being remedial and favorable to the accused may be

applied retroactively to pending cases.
Purpose of Rule
The factor that characterizes the charge is the actual recital of
facts.
The real nature of the criminal charge is determined not from
the caption or preamble of the information nor from the specification of
the provision of law alleged to have been violated they being
conclusions of law but by the actual recital of facts in the complaint or
information.
The purpose of the rule is to fully apprise the accused of the
true charge against him.
The rule broadens the concept and scope of the right of the
accused to be informed of the nature and cause of the accusation
against him.
The life and liberty of the accused should not be left to the
ability or inability of his counsel to promptly object against the
admissibility of what the law or rule requires to be specifically alleged.
This was explained in U.S. v. Karelsen:
"The object of this written accusations was,
First: To furnish the accused with such a description of the charge against
him as will enable him to make his defense; and
Second, to avail himself of his conviction or acquittal for protection against a
further prosecution for the same cause, and
Third to inform the court of the facts alleged so that it may decide whether
they are sufficient in law to support a conviction if one should be had in order that this
requirement may be satisfied, facts must be stated, not conclusions of law.
Every crime is made up of certain acts and intent these must be set forth in
the complaint with reasonable particularity of time, place, names (plaintiff and
defendant) and circumstances.

In short, the complaint must contain a specific allegation of every fact

and circumstance necessary to constitute the crime charged."

If the offender is merely a relation not a parent, ascendant,

stepparent, guardian, or common law spouse of the mother of the victim
the specific relationship must be alleged in the information, i.e., that
he is "a relative by consanguinity or affinity [as the case may be] within
the third civil degree."

It is essential therefore, that the accused be informed of the

facts that are imputed to them as "as he is presumed to have no
independent knowledge of the facts that constitute the offense."
It imperative that the Information filed with the trial court be
complete to the end that the accused may suitably prepare his
defense.

The informations in these cases merely allege that Irma is the

"niece" of Nelson.
She could be a niece beyond the third civil degree either of
consanguinity or affinity.
Hence, the informations are fatally defective in this respect.

According to jurisprudence, aggravating circumstances proven

by the evidence, although not alleged in the information, may be taken
into account as such aggravating circumstances.

Hence, the formulation of the foregoing rules that mandate not only the
qualifying but also the aggravating circumstances to be specified in the information

The allegation that Irma is Nelson's niece is not specific enough

to satisfy the special qualifying circumstance of relationship.

Amendment
The former rule did not require qualifying and aggravating
circumstances to be alleged in the complaint or information.

More specifically, in qualified rape, both the fact of minority of the victim and
the actual relationship between the parties, as worded in R.A. No. 7659, must be
alleged in the Information.

When the victim is under the custody of the police or military

authorities.

e.

Purpose of Rule

We urge the prosecuting fiscals who are charged with the responsibility of
preparing Informations to state with particularity the attendant circumstances
provided for under Section 11 of R.A. No. 7659.

b.

d.

The word "discovered" under the former rule was changed to

"ascertained."

Taking into account the growing number of cases where qualified rape under
Section 11 of R.A. No. 7659, although proven during trial, could still not be properly
penalized because of defects in the Information,

Otherwise, We shall continue to fail both the law and the vic tims whom the
law have sought to protect.

Even the justice of the peace, during the preliminary

investigation of a case, is without authority to determine the
character of the crime committed. His declaration upon the point
is merely an opinion which in no wise binds the trial court.

SEC. 7.
Name of the accused

7659 was further enunciated in People v. Dimapilis. While the Information there
alleged that the victim was the stepdaughter of the accused, it was not accepted as a
proper allegation of the qualifying circumstance that the accused was the "common
law spouse of the parent of the victim" and the death penalty imposed by the trial
court was once again reduced to reclusion perpetua.

When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

It is the province of the Court alone to say what the crime is or

what it is named.

Error in the name or identity should be raised on arraignment.

In the absence of conspiracy, so averred and proved an accused
can only be made liable for the acts committed by him alone and this
criminal responsibility is individual and not collective

Allegations to Warrant Death Penalty

The title of information or designation of offense is not controlling.

It is the actual facts recited in the information that
determines the nature of the crime.
The real nature of offense is to be determined not by its
designation or title given by the Fiscal but the facts alleged in the
body of the Information.

In establishing conspiracy when properly alleged, the evidence

to support it need not necessarily be shown by direct proof but may be
inferred from shown acts and conduct of the accused.
An allegation of conspiracy, or one that would impute criminal
liability to an accused for the act of another or others, is indispensable
in order to hold such person, regardless of the nature and extent of his
own participation, equally guilty with the other or others in the
commission of the crime.

The failure, however, to designate the offense by statute or to

mention the specific provision penalizing the act or an erroneous
speficication of the law violated does not vitiate the information if
the facts alleged clearly recites the facts constituting the crime
charged.

HISTORY OF AMENDMENT.

a.
c.

In fine, the agreement to commit the crime, the unity of purpose

or the community of design among the accused must be conveyed such
as either by the use of the term "conspire" or its derivatives and
synonyms or by allegations of basic facts constituting the conspiracy.
Conspiracy must be alleged, not just inferred, in the information
on which basis an accused can aptly enter his plea, a matter that is not
to be confused with or likened to the adequacy of evidence that may be
required to prove it.

Qualifying circumstances not alleged but proven are considered

as aggravating.

In People u. Nunez, the Court stressed: Strict application of the rule requiring
the allegation of the qualifying circumstances mentioned in Section 11 of R.A. No.

Corollary to this, an indictment must fully state the elements of

the specific offense alleged to have been committed as it is the recital
of the essentials of a crime which delineates the nature and cause of
accusation against the accused.
The Court in People u. Mendez, cited the 1935 case of People v.
Oso, that the allegation of the complaint that the accused had carnal
intercourse with the offended woman "against her will" or "without her

consent" is insufficient to warrant a conviction for rape, although the

evidence proves the commission of the crime and reiterated the
importance of duly informing the accused of the accusation against him
as a constitutional right that cannot be taken lightly, more so, if the
penalty to be imposed is grave, such as the forfeiture of his life.
The essence of the constitutional right of the accused to be
informed of the nature and cause of the accusation against him is that
"every element of the offense must be alleged in the complaint or
information" so as to "enable the accused to suitably prepare his
defense. He is presumed to have no independent knowledge of the facts
that constitute the offense."
In setting out the elements of a crime in the information or com plaint, the pertinent provisions of the Rules on Criminal Procedure,
specifically, Section 9 of Rule 110, provides the following guideline the
cited provision is one of the many provisions in the Rules of Court that
serves to implement the constitutional right of the accused to be
informed of the charges against him.
Relevant to this case is the phrase "a person of common
understanding," which has its origin in this jurisdiction in the phrase "a
person of ordinary intelligence.""
The test is whether the crime is described in intelligible terms
with such particularity as to apprise the accused, with reasonable
certainty, of the offense charged.
The raison d'etre of the rule is to enable the accused to suitably
prepare his defense.

"Be it in terms of syntax or composition, the wording of the informations is

unable to sufficiently notify the accused, a person of common understanding or
ordinary intelligence, of the gravity or nature of the crime he had been charged with,
especially considering that the generic aggravating circumstance of taking advantage
of superior strength is not even an element of the attendant circumstances treated
under number 1 of the last paragraph of Article 335.
The afore-quoted clauses in the informations can thus not be read nor
understood as constituting a specific allegation of the special circumstances of
relationship of father and daughter and that the daughter was less than 18 years of
age at the time the crime of rape was committed."

Specific Allegation of Relationship and Minority

Even if the information alleged that the victim is the natural
daughter of the accused, where there is a difference in their surname,
the mere testimony of the victim that the accused is his father is not
sufficient to establish the qualifying circumstance of relationship, even if
such relationship was not denied by the accused.
Granting that the relationship within the third civil degree ei ther
of consanguinity or affinity was duly proved during the trial, still such
proof cannot be appreciated to justify the imposition of the death
penalty because he would thereby be denied of his constitutional and
statutory right to be informed of the nature and cause of the accusation
against him.
Accused cannot be charged with committing the crime of rape
in its simple form and then be tried and convicted of rape in its qualified
form.
Exact Age of Victim must be Alleged

Without allegation of relationship in cases of statutory rape,

proof alone of relationship unless specifically alleged in the information
would not warrant imposition of the death penalty.

The allegation in the information that complainant is the "minor

daughter" of accused-appellant is insufficient.

Under existing jurisprudence, in the absence of proof of

aggravating circumstance, the penalty should be reclusion perpetua and
not death.
Where there are two indivisible penalties if there is no
aggravating circumstance the lesser penalty should be imposed.

As held in People v. Puertollano, the information must state the

exact age of the victim at the time of the commission of the crime.
To warrant the imposition of the death penalty, the qualifying
circumstance of the rape victim being below seven years of age should
be aptly alleged in the information.

The court may appreciate as an aggravating circumstance the

victim's minority, which was pleaded in the informations and proved by
her birth certificate.
In those cases, when either one of the twin special qualifying
circumstances of relationship and minority is omitted or lacking, that
which is pleaded in the information and proved by the evidence, like the
complainant's minority, may be considered as an aggravating.
Exact Relationship to be Alleged
For rape to be qualified as heinous, warranting the imposition of
the death penalty, the circumstances of the minority of the victim and
her relationship with the offender must be both alleged in the
information for rape.
Although a husband is subject to punishment by death in case
he commits rape against his wife's daughter, where the information
alleged the accused, who is the stepfather of complainant, succeeded in
having carnal knowledge of the latter who was then below eighteen
years of age, but the evidence shows that the accused is not the
complainant's stepfather because he and complainant's mother were
not really married but only lived in common-law relationship or where
the charge is that the victim is the daughter of the accused when the
evidence shows that she is a mere stepdaughter or whether the
relationship is by affinity or consanguinity in the third degree the death
penalty cannot be imposed because the relationship alleged in the
information is different from that actually proven
Where the informations alleged:
"[A]nd taking advantage of his superior strength over the person of his own
daughter who is only thirteen years old.. ."
[T]aking advantage of his superior strength over the per son of his thirteen
(13) year old (sic) daughter. . ."
the Court spared the life of the accused, despite the mention of the age of
the victim and the word "daughter" in said informations, on the ground that the quoted
informations failed to duly allege the special qualifying circumstances of the victim's
minority and the relationship between the victim and the accused because as phrased,
they unduly lay stress on the generic aggravating circumstance of "taking advantage
of superior strength."
The Court further explained that:

Otherwise, the death penalty imposed by the trial court should

be reduced to reclusion perpetua as provided for in the second
paragraph of Art. 335 of the Revised Penal Code, as amended.
COMPARE:
It has, however, been held that where the information state that
the offense was committed with the aggravating circumstances of insult
or in disregard of the respect due the offended party on account of the
fact the accused is the father of the complainant, properly plead the
special circumstance of relationship of father and daughter that would
enable a "person of sufficient understanding" to know what offense is
intended to be charged.
The accused could not have been misled by the wording of the
informations.
A person of ordinary intelligence could not plead with logic that
he had no notice that he is being charged with the repeated rape of his
fifteen-year-old daughter.
Rule on Exemplary Damages
In line with the ruling in People v. Catubig, the qualifying
circumstances of minority and relationship, though not specified in the
complaint, can serve as basis for awarding exemplary damages.
Although the rape was committed in 1997, before the Revised
Rules on Criminal Procedure took effect, the court held that the
retroactive application of the rules does not absolve accused from civil
liability
Thus, the use of deadly weapon is a qualifying circumstance or
when the crime is committed by two or more persons, the penalty is
reclusion perpetua to death if the commission of the crime was
attended by an aggravating circumstance.
The use of a deadly weapon was considered as qualifying and
not aggravating for purposes of imposing the death penalty which was,
however, considered as aggravating to award exemplary damages.
In People v. Caniezo the circumstance of deadly weapon was not
alleged but proven and was considered as generic aggravating but
did not make any difference in the imposition of the penalty since under

Article 63 where the penalty involved are two indivisible penalties of

reclusion perpetua and there are no qualifying circumstances, the single
indivisible penalty of reclusion perpetua shall be imposed regardless of
the aggravating circumstance.
Exemplary damages was, however, awarded.
Thus an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary
damages within the context of Article 2230 of the New Civil Code, even
if the information or criminal complaint has not alleged said
circumstances as required by the rule.
In People v. Cachopero, the award of exemplary damages was
deleted since the aggravating circumstances to justify the ward were
not alleged and proved.
THE MODIFYING CIRCUMSTANCES MUST BE ALLEGED NOT ONLY
IN PREAMBLE BUT IN ACCUSATORY PORTION
The fact of filiation and minority must be alleged in the
accusatory portion of the information.
The real nature of the criminal charge is determined not from
the caption or the preamble of the information, nor from the
specification of the provision of law alleged to have been violated x x x,
but from the actual recital of the facts as alleged in the body of the
information."
Where relationship is not stated in the "cause of the accusation," or in the narration of the act or omission constituting the offense,
but only in the preamble or opening statement of the complaint and the
complaint upon which the appellant was arraigned does not state in the
accusatory portion the specifications of the acts constitutive of the
offense, that he is charged as the father of the victim.
Such omission is prejudicial to the right of the accused to be
informed of the nature of the accusations against him.
PLEA OF GUILTY TO ALLEGATIONS IN BODY OF INFORMATION
Thus, the plea of guilty is not on the offense alleged in the
preamble but for the crime alleged in the accusatory portion of the information.
Thus accused did not, in fact, plead guilty to a capital offense
designated in the preamble but only to that part of the complaint that
charges only simple rape under Art. 335, for which the penalty is only
reclusion perpetua, and not for rape under R.A. No. 7659, qualified by
the circumstance that the offender is the father of the victim who is a
minor, for which the penalty is death.
He cannot therefore properly invoke Sec. 3, Rule 116, which
requires reception of evidence on a plea to a capital offense.
APPLICATION TO ALL CRIMES NOT INVOLVING IMPOSITION OF
DEATH PENALTY
Before the amendment the retroactive effect of non-allegation
of aggravating circumstance even if proved is inapplicable for the crime
of robbery, the same not involving the imposition of the death penalty.
For said crime, what remains applicable is the old rule that
generic aggravating circumstances if duly proven in the course of the
trial could be taken into account by the trial court in determining the
proper imposable penalty, even if such circumstances is not alleged in
the information.
The court clarified that with the amendment, the principle is
now applicable in all criminal cases, not only in cases where the
aggravating circumstances would increase the penalty to death.
The court, therefore gave fair warning to prosecutors that
henceforth, they must prepare well-crafted informations that allege the
circumstances qualifying and aggravating the crimes charged, otherwise
the same will not be considered by the court in determining the proper
penalty.
The failure to allege the fact of filiation and minority in the
information for rape is fatal and consequently bars conviction of its
qualified form which is punishable with death.
Any circumstance that would qualify or aggravate the crime
charged must be specified in the information.

Following the established rule that a penal statute, whether

substantive or procedural, shall be given a retroactive effect if favorable
to the accused, aggravating circumstances not alleged cannot be
appreciated.
Thus, where the aggravating circumstance of dwelling and
abuse of confidence or obvious ungratefulnnes, nocturnity or nighttime
or treachery or abuse of superior strength not alleged in the information
cannot be appreciated.
Although the information does not specifically allege treachery
as a qualifying circumstance in the commission of the crime, the
allegation in the information that the victim was four years old at the
time of the killing is sufficient compliance with section 6, Rule 110 of the
Revised Rules of Criminal Procedure, as amended. Killing a child by an
adult constitutes treachery even if the mode of attack by the assailant is
not proved by the prosecution because a child of tender years could not
be expected to put up a defense and hence at the mercy of his or her
assailant.
THE JUDGMENT MUST MAKE AN EXPRESS FINDING OF THE
QUALIFYING CIRCUMSTANCES
The decision of the trial court must contain an express and
categorical finding that the complainant was below 18 years old when
the crime of rape was committed to justify the imposition of the death
penalty.
The fact that accused-appellant has not denied the allegation in
the complaints that Mylene was below 18 years of age when any of the
crimes was committed cannot make up for the failure of the prosecution
to discharge its burden.
Because of its failure to discharge this burden and the
corresponding failure of the trial court to make a categorical finding as
to the minority of the victim, the qualifying circumstance of minority and
relationship cannot be appreciated in these cases.
It is different with regard to the relationship of the offended
party and accused-appellant, because the latter admitted that
complainant is his daughter.
Perforce, the death penalty imposed by the trial court in each of
the eight (8) cases should be reduced to reclusion perpetua as provided
in the second paragraph of Art. 335 of the Revised Penal Code, as
amended.
There must not only be proof of minority but also of the relationship between the accused and the victim.
MODIFYING
CIRCUMSTANCES
NEED
NOT
ALLEGE
WITH
SPECIFICITY WHETHER IT IS QUALIFYING OR AGGRAVATING
It was earlier held that where the information, did not allege
with specificity as qualifying the killing to murder (it merely alleged
"with intent to kill, treachery and evident premeditation) although
established by the evidence, under the present Revised Rules of
Criminal Procedure, treachery has to be considered a generic aggravating circumstance only.
This was reiterated in an en bane decision of the Court in People
v. Manlansing, holding that where none of aggravating circumstances
were alleged in the informations with specificity as a qualifying
circumstance elevating the killing to murder, ascused should only be
convicted of homicide.
This is no longer true.
In a per curiam Resolution, the Court in People v. Aquino
declared:
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 Informa tion 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."

Unfortunately, this is one of those cases.

The allegation of the twin circumstances of minority and
relationship in the Information, which were proven beyond reasonable
doubt during the trial, compels the Court to impose the death penalty.
To guide the bench and the bar, this Resolution clarifies and
resolves the issue of how to allege or specify qualifying or aggravating
circumstances in the Information.
The words "aggravating/qualifying," "qualifying," "qualified by,"
"aggravating," or "aggravated by" need not be expressly stated as long
as the particular attendant circumstances are specified in the
Information."

There is less necessity of reciting its particularities in the

information because conspiracy is not the gravamen of the offense
charged.

c.
The liability of the conspirators is collective and each participant
will be equally responsible for the acts of the others.
a.

c.

In establishing conspiracy when properly alleged, the evidence

to support it need not necessarily be shown by direct proof but may be
inferred from shown acts and conduct of the accused.

by the use of the word "conspire" or its derivatives or

synonyms, such as confederate, connive, collude, etc. or

His declaration upon the point is merely an opinion which

in no wise binds the trial court.

(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.

For example, the crime of "conspiracy to commit treason" is

committed when, in time of war, two or more persons come to an
agreement to levy war against the Government or to adhere to the
enemies and to give them aid or comfort, and decide to commit it. * * *

The real question is not that he did commit a crime given in

the law some technical and specific name, but did he
perform the acts alleged in the body of the information in
the manner therein set forth.

e.

If he did, it is of no consequence to him, either as a matter

of procedure or of substantive right, how the law
denominates the crime which those acts constitute."

It is the province of the Court alone to say what the crime is or

what it is named.

(1)

Conspiracy Charged as a Crime

It in no way aids him in his defense on the merits.

The title of information or designation of offense is not controlling.

Even the justice of the peace, during the preliminary

investigation of a case, is without authority to determine the
character of the crime committed.

Thus, when conspiracy is charged as a crime, the act of con spiring and all the elements of said crime must be set forth in the
complaint or information.

This is so because from a legal point of view, and in a very

real sense, it is of no concern to the accused what is the
technical name of the crime of which he stands charged.

The failure, however, to designate the offense by statute or to

mention the specific provision penalizing the act or an erroneous
specification of the law violated does not vitiate the information if
the facts alleged clearly recites the facts constituting the crime
charged.

Following the stream of our own jurisprudence, it is enough to

allege conspiracy as a mode in the commission of the crime in either of
the following manner:

In the absence of conspiracy, so averred and proved an accused

can only be made liable for the acts committed by him alone and this
criminal responsibility is individual and not collective.

In such cases, the real nature of the crime charged is

determined not by the title of the complaint, nor by the
specification of the provision of the law alleged to have
been violated, but by the facts recited in the complaint or
information.

It is the actual facts recited in the information that determines the nature of the crime.
The real nature of offense is to be determined not by its
designation or title given by the Fiscal but the facts alleged in the
body of the Information.
d.

This principle was reiterated in People v. Torres, wherein the

Court again held that it is not the technical name given by
the Fiscal appearing in the title of the Information that
determines the character of the crime but the facts alleged
in the body of the information, where the accused charged
with violation of General Order No. 6 for carrying with him
an unlicensed firearm punishable with life imprisonment
was held guilty under the Revised Administrative Code
punishable by imprisonment of one to five years.

Allegations prevail over designation of the offense in the

information for conviction of accused who may therefore be
convicted of a crime more serious than that named in the title or
preliminary part if such crime is covered by the facts alleged in
the body of the information and its commission is established by
the evidence.

c.

Although the information charged the petitioner with estafa,

the crime committed was theft.
It is settled that what controls is not the designation of the
offense but the description thereof as alleged in the
information

EFFECTS OF VARIANCE IN MODE OF COMMISSION OF CRIME

5.

The foregoing doctrines refer to the special qualifying

circumstances that are required to be specifically alleged in the information.

B.P. Big. 22 cannot be deemed necessarily included in the

crime of estafa under RPC, Article 315, 2(d).
The offense of fraud denned under the Revised Penal Code
is malum in se, whereas B.P. Big. 22, also known as
Bouncing Checks Law, is a special law which punishes the
issuance of bouncing checks, a malum prohibitum.

It would seem to be different when there is a mere variance in

the mode of the commission of the crime.
A.

"Willfully, unlawfully" covers "knowingly" in illegal fishing.

Willful damage to property includes reckless imprudence.
"Deceit and promise of marriage was treated as mere surplusage in
qualified seduction case."

Fraud or estafa under the Revised Penal Code is a distinct

offense from the violation of the Bouncing Checks Law.

Real Nature of Crime Determined by Facts Alleged in Complaint or

Information and Not by Title

They are different offenses, having different elements.

a.

CONSPIRACY CHARGED AS MODE OF COMMITTING A CRIME

What controls is not the designation of the offense but its

description, and in the case of attending circumstances, not
their denomination but their function.

The requirements of the sufficiency of the information are

different when conspiracy is not charged as a crime in itself but only as
the mode of committing the crime as in the case of Plunder consisting of
several crimes.

If the killing was committed with the attendance of any of

the circumstances mentioned in Article 248 of the Revised
Penal Code, then the offense committed is murder although
they are mistakenly called aggravating in the information.

"Intent to gain" is presumed to be alleged in an information where it

is alleged that there was unlawful taking and appropriation by the offender.

C.

Limitation on Rule that an Accused may be Convicted of a Crime

which is More Serious than that Named in the Title so Long as the
Facts Alleged the More Serious Offense
(a)

This is especially so where the facts pleaded are clearly

constitutive of a specific offense.

To comply with these fundamental requirements of the

Constitution and the Rules on Criminal Procedure, it is imperative
for the specific statute violated to be designated or mentioned in
the charge.

Conspiracy must be alleged, not just inferred, in the information

on which basis an accused can aptly enter his plea, a matter that is not
to be confused with or likened to the adequacy of evidence that may be
required to prove it.

"Having committed the offense criminally and feloniously, and with

intent to kill" sufficiently avers discernment on the part of the accused who was
a minor.

In a prosecution for robbery with rape, the fact that the

information did not mention Art. 335 of the Revised Penal
Code but Arts. 293 and 294 of that Code will not prevent
conviction of an accused under Art. 335.

As former Chief Justice Moran pointed out: "If the above

requirement is not complied with and no name has been
given to the offense alleged to have been committed, the
defect is merely of form which does not prejudice the
substantial rights of the defendant.

This is essential to avoid surprise on the accused and to

afford him the opportunity to prepare his defense accordingly.

b.

Thus, where the information characterized the killing as

having been committed by taking advantage of superior
strength, a circumstance which qualifies a killing to murder,
the information sufficiently charged the commission of
murder.

The constitutional right of the accused to be informed of the

nature of the accusation against him is not violated thereby.

Pursuant to the above, Section 6, Rule 110 of the Rules of

Court, expressly requires that for a complaint or information to be
sufficient, it must, inter alia, state the designation of the offense
by the statute, and the acts or omissions complained of as
constituting the offense.

The information must state that the accused have confederated

to commit the crime or that there has been a community of design, a
unity of purpose or an agreement to commit the felony among the
accused.

complaint and conclusions such as "Grave abuse of confidence"

are not allowed the following terms were interpreted by the
Supreme Court is follows:

Need to Designate Statute Violated.

It is a constitutional right of any person who stands
charged in a criminal prosecution to be informed of the nature
and cause of the accusation against him.

WHEN DEFECT IN INFORMATION CURED: THE SUBSTANTIAL

COMPLIANCE RULE

In fine, the agreement to commit the crime, the unity of purpose

or the community of design among the accused must be conveyed such
as either by the use of the term "conspire" or its derivatives and
synonyms or by allegations of basic facts constituting the conspiracy.

b.

The conspiracy is significant only because it changes the

criminal liability of all the accused in the conspiracy and make them
responsible as co-principals regardless of the degree of their
participation in the crime.

The ruling was reiterated in People v. Paulina and People v.

Garin3 holding that the appellant may no longer rely on the rulings Alba
and Manalansing because of the ruling in People v. Aquino and People v.
Paulino.

Such an allegation, in the absence of the usual usage of the

words "conspired" or "confederated" or the phrase "acting in
conspiracy," must aptly appear in the information in the form of
definitive acts constituting conspiracy.

They are qualifying circumstances nonetheless.

Where appellant is accused of violating a particular

provision of the Revised Penal Code on estafa, she may not
be convicted for violation of B.P. Big. 22 without trenching
on fundamental fairness.
B.

Essential Elements Inferred from Allegation in Information

While the general rule is that an inference in the

An accused could not be convicted under one act when he is

charged with a violation of another if the change from one
statute to the other involves:
1)
2)
3)

(b)

a change of the theory of the trial;

requires of the defendant a different defense; or
surprises the accused in anyway.

Illegal construction Where the information for illegal

construction does not specifically describe and locate the
building alleged to have been illegally constructed, it is
fatally defective because it is impossible on its face to
identify the house allegedly constructed without the
necessary building permit.
It can be quashed.

In several cases, the accused whose guilt beyond

reasonable doubt, although affirmed by the Supreme Court,
escaped lethal injection because of the failure of the prosecution
to specifically allege the qualifying circumstance of relationship or
age in heinous crimes.
The Supreme Court therefore urged the prosecuting
fiscals to state with particularity the fact of minority and the
actual relationship between the parties as worded in R.A. No.
7659.
It must be spelled out in more concrete terms.
This is what the amendment seeks to accomplish.
The amendment did not, however, limit the requirement
to qualifying circumstances but also included aggravating
circumstances.
Where there is no aggravating circumstance, the penalty
is reclusion perpetual
The requirement would also prevent a repetition of the
errors by the prosecutors in Republic v. Asuncion, Arceo v.
Cunanan, People u. Magallanes and Lacson u. Executive
Secretary, where the prosecution failed to specify the qualifying
facts that the crimes were committed in relation to their public
office.
The general rule is that an accused cannot be convicted
of a different mode of the commission of the offense charged in
the information.
Where the law distinguishes between two cases of
violation of its provision, an information for violation thereof must
specify under which of the two cases, the defendant stands
accused of.
Where the accused is charged with rape committed thru
force and intimidation, he can not be convicted of rape committed
under paragraph 2 of Article 335 when the woman is deprived of
reason or otherwise unconscious, except when there is no
objection.
It was held that an accused cannot be convicted of rape of
a mental retardate if this is not alleged in the information.
It was likewise held that the accused cannot be convicted
under paragraph 2 or 3 of Article 335 of the Revised Penal Code,
because none of the modes of committing rape specified therein

were alleged in the Information.

To convict him under either of these statutory provisions
is to deprive him of the constitutional right to be informed of the
accusation against him.
Thus in convicting appellant, the trial court relied upon a
finding that complainant was unconscious when the appellant had
carnal knowledge other.
This contradicts the allegation in the information.
Appellant was charged with rape committed by means of
force or intimidation.
Appellant was charged with rape committed by means
offeree or intimidation.

charged through either the second or third circumstance of

committing such crime.

uncomplicated and routine task on its part, but more importantly since
accused-appellant himself did not personally, on a person-to-person
basis, manifest to the trial court the waiver of his own right.

of the accused.
Variance, however, on date of commission of rape is irrelevant.

OBSERVATIONS: LIMITATION ON WAIVER

The information in the foregoing cases charges an offense but
allowed waiver because of a variance between the allegation and proof
in the mode of commission of the offense without any objection.
Where the information charges no offense at all or would result
in convicting the accused for a more serious offense than the offense
charged waiver for failure to object should not be allowed.
The court itself stated that the rules on the validity or invalidity
of a waiver are not something we have crafted overnight to suit the
instant case.

As things stand, both this Court and the trial court being asked
hook, line and sinker to take the word of counsel de oficio whose own
concern in that particular phase of the proceedings a quo may have
been compromised by pressures of his other commitments.
For all we know, the statutory counsel of the indigent accused at
that time of the trial, although not evident in the other aspects of his
representation, only wanted to get rid of dreary work rather than protect
the rights of his client.
Of course, it may be stretching the argument too much to
ascribe fatal incompetence upon herein accused's counsel for this
solitary instance of faux pas.

Habitual delinquency
A mere statement of habitual delinquency is a conclusion of law
and a plea of guilty to such an information does not make the accused a
habitual delinquent.
The information should specify the dates:
(1)
(2)
(3)

of the commission of previous crimes;

of the last conviction or release; and
of the other previous conviction or release of the accused.

ABSENCE OF ALLEGATION
DELINQUENCY

OF

RECIDIVISM

AND

HABITUAL

They have been extant since time that is now immaterial to

Otherwise put, his offense fell under Article 266-A(1) of
the Revised Penal Code.
But in convicting him of rape committed while his victim
was supposedly unconscious, the trial court applied Article 266A(l)(b) of said Code.
The element of unconsciousness on the victim's part was
not alleged much less specified in the information.
It cannot be made the basis of conviction, without
violating appellant's right to due process, in particular to be
informed of the nature of the accusation against him.
However, in People u. Atienza, involving the rape of a 13year old minor charged with rape committed in 1996 by force and
intimidation there was no objection to evidence of subnormal
mental incapacity (that is, her mental capacity was equivalent to
an 8 year-old).
The court held that the absence of an allegation in the
information of this mode of committing the crime of rape was
deemed waived by the absence of an objection and the
presentation of evidence to the contrary.
The Court cited People u. Abiera, holding that the accused
charged with rape through one mode of commission may still be
convicted of the crime if the evidence shows another mode of
commission, provided that the accused did not object to such
evidence.
Failure to object to evidence of the mode of commission of
crime different from that alleged in the information is considered
a waiver:
a.

There is waiver and conviction allowed based on evidence

even if not alleged in the information, citing separate
opinion of then now C.J. Davide in People v. Moreno, on
waiver of constitutional right to be informed of nature and
cause of accusation.
In this case, the accusatory portion failed to specifically
allege that the rape was committed through force or
intimidation, the prosecution was able to establish by
evidence without any objection that the accused-appellant
that tended to prove that he committed the rape by force
and intimidation.

b.

Similarly, in People v. Orbita, the Information against

accused-appellant alleged that he had carnal knowledge of
the victim by means offeree, violence and intimidation,
against the latter's will and consent.
It did not allege her mental state.
During the trial, however, the prosecution proved that the
victim is a mental retardate and the accused-appellant was
convicted under paragraph 2 of Article 335 of the Revised
Penal Code.

Although initially deficient, the criminal complaint was

deemed corrected when the prosecution introduced evidence of
the complainant's mental condition and the defense did not
object, thereby waiving the procedural defect.
Accordingly, appellant can be convicted of the crime

recall.

But, for sure, we must inquire if the waiver was validly done.

In civil cases, we overturn decisions because the waiver of

certain rights was not done in accordance with the requisites.

In People v. Donato," the Court expounded on what rights and

privileges may be waived, viz.:

Hence, in Intestate Estate of the Late Vito Borromeo v.

Borromeo, this Court set aside the waiver of hereditary rights because it
was not clearly and convincingly shown that the heir had the intention
to waive his right or advantage voluntarily.

"Although the general rule is that any right or privilege conferred by

statute or guaranteed by constitution may be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would be
against public policy or morals and the public interest may be waived.

In criminal cases where life, liberty and property are all at stake,
obviously, the rule on waiver cannot be any less.
In this light, we are at a loss why counsel de oficio for accusedappellant did not touch upon this point when something more valuable
than any property that a person could ever inherit in his lifetime is in
danger of being taken away eternally.
It is elementary that the existence of waiver must be positively
demonstrated since a waiver by implication cannot be presumed.
The standard of waiver requires that it "not only must be
voluntary, but must be knowing, intelligent, and done with sufficient
awareness of the relevant circumstances and likely consequences."
There must thus be persuasive evidence of an actual intention
to relinquish the right.

"While it has been stated generally that all personal rights conferred by
statute and guaranteed by constitution may be waived, it has also been said that
constitutional provisions intended to protect property may be waived, and even some
of the constitutional rights created to secure personal liberty are subjects of waiver."

While it is established that rights may be waived, Article 6 of

bhe Civil Code explicitly provides that such waiver is subject to the
condition that it is not contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third person with a right
recognized by law.
Thus, in the following cases, waiver was not allowed as it would
violate the constitutional right of the accused to be informed of the
nature and cause of the accusation against him, and, consequently, a
denial of due process.
a.

Mere silence of the holder of the right should not be easily

construed as surrender thereof; the courts must indulge every
reasonable presumption against the existence and validity of such
waiver.

An accused cannot be convicted of rape or acts of lasciviousness

or of violation ofR.A. No. 7610 under an information which charges
the accused of raping his six year-old daughter or committing acts
of lasciviousness on her, or of committing sexual abuse against
her 11-year old daughter.
Waiver is not allowed where the information charges no

Necessarily, where there is a reservation as to the nature of any

manifestation or proposed action affecting the right of the accused to be
heard before he is condemned, certainly, the doubt must be resolved in
his favor to be allowed to proffer evidence in his behalf.

offense.

Our criminal rules of procedure strictly provide the step-by-step

formula to be followed by courts in cases punishable by death.

For an accused cannot be convicted of an offense, even if

duly proven, unless it is alleged or necessarily included in the
complaint or information

The reason for this is to ensure that the constitutional

presumption of innocence in favor of the accused is preserved and the
State makes no mistake in taking life and liberty except that of the
guilty.

An indictment must fully state the elements of the specific

offense alleged to have been committed.

b.

Hence, any deviation from the regular course of trial should

always take into consideration that such a different or extraordinary
approach has been undertaken voluntarily and intelligently.

Where the accused alleged to be the father of the victim

who is under 18 years of age is charged with rape under
paragraph 2 of Article 266-A punishable by reclusion temporal he
cannot be convicted of rape under paragraph 1 of Article 266-A
punishable by death, even if this was duly established.

For otherwise, as in the instant case, denial of due process can

be successfully invoked since no valid waived or rights has been made.
The Court noted with deep regret the failure of the trial court to
inquire from accused-appellant himself whether he wanted to present
evidence; or submit his memorandum elucidating on the contradictions
and insufficiency of the prosecution evidence, if any; or in default
thereof, file a demurrer to evidence with prior leave of court, if he so
believes that the prosecution evidence is so weak that it need not even
be rebutted.
The inquiry is simply part and parcel of the determination of the
validity of the waiver, i.e., "not only must be voluntary, but must be
knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences." which ought to have been
done by the trial court not only because this was supposed to be an

Waiver is not allowed where the qualifying circumstance is

different from the qualifying circumstance alleged in the information.

c.

Waiver is not allowed where it would result in a more serious

penalty.
Under sections 8 and 9, Rule 110 failure to allege
aggravating or qualifying circumstances, even if proved without
objection cannot be availed of to qualify or aggravate the offense
charged.
The court ruled that the relationship and minority of the
victim are special qualifying circumstances which cannot be
considered unless specifically alleged in the information.

The right to be arraigned cannot be waived. There can be no

trial in absentia without arraignment which must be in the presence

In the Absence of allegations in Information of Recidivism and

Habitual Delinquency the evidence was properly objected to as
inadmissible.
Similarly, the qualifying circumstance of treachery must be
specifically pleaded or alleged with sufficient clarity as to be readily
understood and not merely deduced.
Negative and Excepting Allegations
When an exception or negative allegation is not an ingredient of
the offense and is a matter of defense it need not be alleged.
An exception in a penal statute by which certain particulars are
withdrawn from or excepted out of its enacting clause, defining a crime
concerning a class or species, need not be denied in an infor mation
charging a violation of said statute.
And where a denial is unnecessarily alleged in the information, it
need not be proved by the prosecution, for it is not an essential element
of the violation charged, but a matter of defense which must be proved
by the accused if he relies upon it.
For instance, the Opium Law provides that "save upon the
prescription of a duly licensed and practicing physician, veterinarian, or
dentist, no person shall inhale, snuff, chew, swallow, inject, or otherwise
take or use any such drug in his body or permit the same to be used
upon him by another."
In an information charging a violation of this statute, it is not
necessary to allege that the person charged is not under the exception
contained in the statute, i.e., that he did not use the prohibited drug
upon the prescription of a physician, veterinarian or dentist, nor is it
necessary to prove such allegation if made unnecessarily, because said
exception is a matter of defense which the accused must prove.
To determine whether the exception is or is not a matter of
defense, the following test has been approved: If the language of the
law defining the otfense is so entirely separable from the exception that
the ingredients constituting the offense may be accurately and clearly
defined without any reference to said exception, the pleader may then
safely omit such reference, as the exception is a matter of defense
which must be shown by the accused.
If, however, the exception is so incorporated with the language
defining the offense that the ingredients of the offense cannot be
accurately and clearly described if the exception is omitted, the
indictment founded upon the statute must allege enough to show that
the accused is not within the exception.
And, when the evident intent and purpose of the statute is to
prohibit and penalize generally an act as, for instance, the smoking of
opium, and the statute desires to withdraw from its operation a limited
class of persons, one charged with its violation is bound to show that he
falls within the exception, whether the excepting proviso is found in the
enacting clause or in a separate provision of the statute.
A negative allegation of recruiting without a license, forms an
essential element of the crime charged. Hence, it was incumbent upon
the prosecution to satisfactorily establish the date when the complainant was recruited.
(1)

"Without necessary license" is an ingredient of violation of

Circular No. 60 of the Central Bank prohibiting the import and
export of Philippine coins and notes.

(2)

Want of Certificate to practice medicine is an essential element of

the crime of illegal practice of medicine.

(3)

In illegal possession of firearm, the information must allege that

accused has no license to possess firearm.

Where the law distinguishes between two cases of viola tion of its provision, an
information for violation thereof must specify under which of the two cases the
defendants stands accused of.

An accused charged with murder by means of stabbing cannot

be convicted of homicide thru drowning, otherwise, his constitutional
right to be informed of the nature and cause of the accusation against
him would be violated, so also a person may not be convicted of qualified seduction where the information charges him with rape by means
offeree, violence and intimidation.
Inference in complaint and conclusions are not allowed.
"Grave abuse of confidence" is a conclusion of law.
Robbery with Homicide
Failure to state in the information that the killing of the victim
was committed "by reason of or on occasion of the robbery," does not
bar conviction of accused of the special complex crime of robbery with
homicide.
SEC. 10.
Place of commission of the offense
Purpose of Rule: TO SHOW TERRITORIAL JURISDICTION.
Crimes Where Place is Essential
a.
Violation of domicile;
b. Penalty on keeper, watchman and visitor of an opium den;
c.
Trespass to dwelling;
d.
Violation of election law, e.g., 30 meter-radius carrying of deadly
weapon prohibited.
A general allegation in the complaint that the felony was
committed within the jurisdiction of the court is sufficient.
The remedy is a motion for Bill of Particulars under Rule 116,
Sec. 6.
Venue of Criminal Action for Written Defamation

complainant that she was abused before the start of classes in June
1978 which may thus be considered as part of the complaint, the
discrepancies between the accusation and the complaint as to the time
of occurrence of the carnal copulations in rape do not affect the
essential rights of the accused, where the acts occurred within the
period of time alleged in both writings, and the difference noted in other
respects was of a formal, rather than a substantial, character.
"About" is a very comprehensive term which when used with
regards to time, may cover a considerable extent thereof.
BUT in U.S. v. Smith it was held that the proof need not
correspond to the allegation, unless the time and place is material and
of the essence of the offense as a necessary ingredient in its
description.

knowledge of the charge to enable him to prove his defense.

The rule in this jurisdiction is that "variance between the
allegations of the information and the evidence offered by the
prosecution in support thereof does not of itself entitle the accused to
an acquittal."

Effects of Duplicity of Offenses Charged

The rules on criminal procedure require the complaint or
information to state the name and surname of the person against whom
or against whose property the offense was committed or any appellation
or nickname by which such person has been or is known and if there is
no better way of identifying him, he must be described under a fictitious
name.
In 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.

The evidence is admissible and sufficient if it shows:

(1)

that the crime was committed at any time within the period
of limitation and

(2)

before or after the time stated in the complaint or

indictment and before the action is commenced.

Thus, an information charging the commission of the crime of

robbery in December 1902, was filed in March 19, 1903.
It was held that the complaint was sufficient to sustain a
conviction even if the proof showed that it was committed in January
1903.
It was, however held, in U.S. v. Dickao, that an allegation from
October 1910 to August 1912 is defective:
To allege in an information that the accused committed rape on a certain
girl between October 1910, and August 1912, is too indefinite to give the accused an
opportunity to prepare his defense, and that indefiniteness is not cured by setting out
the date when a child was born as a result of such crime.

An information for bigamy must state the time and place of the
second wedding.

In U.S. v. Kepner, the Court laid down the rule that when an
offense shall have been described in the complaint with sufficient
certainty as to identify the act, an erroneous allegation as to the person
injured shall be deemed immaterial as the same is a mere formal defect
which did not tend to prejudice any substantial right of the defendant.
Accordingly, in the aforementioned case, which had a factual
backdrop similar to the instant case, where the defendant was charged
with estafa for the misappropriation of the proceeds of a warrant which
he had cashed without authority, the erroneous allegation in the
complaint to the effect that the unlawful act was to the prejudice of the
owner of the cheque, when in reality the bank which cashed it was the
one which suffered a loss, was held to be immaterial on the ground that
the subject matter of the estafa, the warrant, was described in the
complaint with such particularity as to properly identify the particular
offense charged.
In the instant suit for estafa which is a crime against property
under the Revised Penal Code, since the check, which was the subject
matter of the offense, was described with such particularity as to
properly identify the offense charged, it becomes immaterial, for
purposes of conviction of the accused, that it was established during the
trial that the offended party was actually Mever Films, Inc., and not
Ernesto Rufino, Sr. nor Bank of America as alleged in the information.

Variance, however, on date of commission of rape is irrelevant.

Time is irrelevant in rape" and violations of the Dangerous Drugs
Law cases.

Other Cases
a.

Even if the names of offended parties are not alleged, if the

offense belongs to the class of harmful ones (illegal practice of
medicine), the victims of petitioner should be considered as
offended parties.

b.

An erroneous allegation as to the person injured is of form which

did not tend to prejudice any substantial right of the accused on
the merits.

c.

The name of the offended party is, however, material in slander.

Venue in criminal cases is an essential element of jurisdiction.

To determine venue in libel cases, the complaint or information
should contain allegations as to whether, at the time the offense was
committed, the offended party was a public officer or a private
individual and where he was actually residing at the time.
Whenever possible, the place where the written defamation was
printed and first published should likewise be alleged.
That allegation would be a sine qua non if the circumstances as
to where the libel was printed and first published is used as the basis of
the venue of the action.
SEC. 11.
Date of Commission of the Offense
"Time" of the commission of the offense was changed to
"DATE."
Crimes Where Time is Essential
a.
b.
c.

Infanticide;'
Violation of Sunday Statutes (Election Law); and
Abortion.

The complaint must allege a specific time and place when and
where the offense was committed, but when the time so alleged is not
of the essence of the offense, it need not be proved as alleged, and the
complaint will be sufficient if the evidence shows that the offense was
committed at anytime within the period of the statute of limitation and
before the commencement of the action.
Where the complaint for rape charges accused with having
committed the crime "on or about the month of June 1978" and the affidavit shows that it was committed for "sometime prior to said period
and subsequent thereto," attaching thereto the affidavit of the

SEC. 12.
Name of the Offended Party
Name of Offended Party
The rules on criminal procedure require the complaint or
information to state the name and surname of the person against whom
or against whose property the offense was committed or any appellation
or nickname by which such person has been or is known and if there is
no better way of identifying him, he must be described under a fictitious
name.
In crimes against property, the object taken or destroyed should
be particularly described to properly identify the crime (if the name of
the offended party is unknown).
In case of offenses against property, the designation of the
name of the offended party is not absolutely indispensable for as long
as the criminal act charged in the complaint or information can be properly identified.
NAME OF OFFENDED PARTY IN OFFENSES AGAINST PROPERTY
In Sayson v. People (supra), the petitioner vigorously maintains
that he cannot be justifiably convicted under the information charging
him of attempting to defraud Ernesto Rufino, Sr. and/or Bank of America
because the totality of the evidence presented by the prosecution
shows very clearly that the accused allegedly attempted to defraud
Mover Films, Inc., a corporate entity entirely separate and distinct from
Ernesto Rufino, Sr.
He firmly asserts that his conviction was in gross violation of his
right to be informed of the nature and cause of the accusation against
him.
Petitioner's claim is unavailing.

The State should not heap upon the defendant two or more
charges which might confuse him in his defense.

Where the accused is charged in one information with more than

one offense and makes no objection to the information on the ground
that it charges more than one offense, the prosecution may properly
submit evidence as to the commission of each and all offenses charged
and the court may properly enter judgment for each and every offense
proved and impose the proper penalties for each offense.
A motion to quash that more than one offense charged should
therefore be filed, otherwise it is deemed waived and the accused may
be convicted for as many offenses charged and proved.
Under Section 3, Rule 117, the accused may move to quash the
complaint or information on the ground that more than one offense is
charged except in those cases in which existing laws prescribe a single
punishment for various offenses.
Upon the other hand, when two or more offenses are charged in
a single complaint or information, and the accused fails to object to it
before trial, the court may convict the accused of as many offenses as
are charged and proved, and impose on him the penalty for each and
every one of them setting out separately the findings of fact and law in
each case.
CASES WHERE
OFFENSE

In robbery, ownership is not necessary.

e.

The damage inflicted in estafa need not fall on the same person
against whom deceit was directed.

f.

In robbery with violence against or intimidation of person, the

allegation of the owner's name in the information is essential.

g.

The omission of value in theft cases is not fatal.

h.

People v. Avellana, an information for murder is not defective

where another's name not the victim's name is placed in the
information. It is merely clerical.

CHARGES

MORE

THAN

ONE

An information is defective for duplicity where the accused is

charged in one complaint for assaulting three (3) persons by different
acts while they were asleep, an information which charges two
violations of the Revised Penal Code contained in two separate provisions is duplicituous.
An information for malversation of public funds through
falsification of public documents and loss and destruction of public
documents for purposes of concealing a crime was held as defective.
So is an information which charges estafa and falsification to
conceal the defraudation.
a.

Inclusion of Different
Narration of Facts

Acts

of

Offenses

to

Complete

Where the different acts or specifications charging the

accused with having committed the offenses charged therein
were included in the information merely to describe and to
narrate the different and specific acts, the sum total of which
constitutes a crime, the validity of the information cannot be
assailed on the ground that it charges more than one offense,
because those different acts or offenses may serve merely as a
basis for the prosecution of one single crime."

The act of insulting X is distinct from a similar act of insult

against Y, even if the insult is preferred by the same person, in
the same language, and at about the same time.
d.

INFORMATION

In the case of U.S. v. Cernias, it was held that while it is

true that each of those acts charged against the conspirators was
itself a crime, the prosecutor in setting them out in the
information did no more than to furnish the defendants with a bill
of particulars of the facts which it intended to prove at the trial,
not only as a basis upon which to found an inference of guilt of
the crime of conspiracy but also as evidence of the extremely
dangerous and wicked nature of that conspiracy.
The charge is not defective for duplicity when one single
crime is set forth in the different modes prescribed by law for its
commission, or the felony is set forth under different counts
specifying the way of its perpetuation, or the acts resulted from a
single criminal impulse.
Neither is there duplicity when the other offense
described is but an ingredient or an essential element of the real
offense charged nor when several acts are related in describing
the offense.

SEC. 13.
Duplicity of the offense
b.

Single Offense Committed by Different Means

Purpose of Rule
The information is defective when it charges two or more
offenses.
The rule enjoining the charging of two or more offenses in an
information has for its aim to give the defendant the necessary

It is "a well-settled rule in considering indictments that

where an offense may be committed in any of several different
modes, and the offense, in any particular instance, is alleged to
have been committed in two or more modes specified, it is
sufficient to prove that it be such as to constitute the substantive
offense," and the defendants, may, therefore, be convicted if any

one of the substantive charges into which the complaint may be

separated has been made out.
It is not objectionable, when a single offense may be
committed by the use of different means to charge in the
alternative, the various means by which the crime may have been
committed.

commission of an act of robbery by a band of robbers, simply sets

out the same fact in different aspects and is not bad for duplicity.
h.

Section 3(e) of the Anti-Graft and Corrupt Practices Act

does not suffer from the constitutional defect of vagueness by the
use of the phrases "manifest partiality," "evident bad faith" and
"gross inexcusable negligence."

Thus, the defendant was accused of the violation of the

Medical Law.

They merely describe the different modes by which the

offense penalized in Section 3(e) of the statute may be
committed, and the use of all these phrases in the same
information does not mean that the indictment charges three
distinct offenses.

The information charged both illegal practice of medicine

and illegally advertising oneself as a doctor.
Held: That the information was not bad for duplicity
inasmuch as the acts charged were merely different means of
committing the same offense, notwithstanding the fact that they
are prohibited by separate sections of the statute.
c.

i.

A single act or incident might offend against two or more

entirely distinct and unrelated provisions of law thus justifying the
prosecution of the accused for more than one offense.
The only limit to this rule is the Constitutional prohibition
that no person shall be twice put in jeopardy of punishment for
"the same offense." two (or more) offenses arising from the same
act are not "the same."

The defective information not having been timely

objected to, however, said defect of duplicity of charges cannot
be heard belatedly on appeal and accused may be convicted of as
many offenses as are charged therein and proved beyond
reasonable doubt.
There is, however, complex crime of murder with
frustrated murder where a single shot hit both victims.

The Rules prohibit the filing of such Information to avoid

con fusing the accused in preparing his defense.

d.

Held: That a complaint alleging these facts did not charge

more than one offense.
e.

j.

Treason
A person accused of an offense is not charged by the
number of counts or paragraphs, but by the specific criminal acts
regardless of their number contained in one paragraph or in one
count.
A person accused of an offense is not considered as
having been charged by the number of counts or paragraphs into
which the acts charged may have been grouped in the
information, but by the specific criminal acts charged, even if two
or more of them are contained in one paragraph or in one count.

Violation of Child Abuse Law

Each incident of sexual intercourse and lascivious acts
with a child under the circumstances mentioned in Republic Act
No. 7610 is a separate and distinct offense.

Falsification
The defendant, a municipal treasurer, received from
different persons for personal cedulas more than the amount
allowed by law falsified the records of his office so that they
showed the receipt of the lawful amount only, and in his monthly
statements to the provincial treasurer made similar false
statements.

Murder with Double Less Serious Physical Injuries

Where in describing the offense of murder with double
less serious physical injuries, the information states that appellant
"feloniously attack, assault and shoot for several times the
victims," it in effect charged accused with several distinct and
separate crimes, as it is the allegations or actual recitals in the
information rather than the technical description of the crime that
controls.

Single act that Violates Different Statutes

Here, however, the prosecution charged each petitioner

with four offenses, with each Information charging only one
offense.

The Anti-Graft Law

THE PRINCIPLE OF DELITO CONTINUADO

Justice Quiason explains the Principle of Delito Continuado
(continuing crimes) in Santiago v. Garchitorena.
In this case, 32 Amended Informations for violation of the AntiGraft Law alleged that the offenses were committed on the same period
of time, i.e., on or about October 17, 1988 favoring 32 aliens.
The several acts were considered by the court as constituting
only one crime.
For delito continuado to exist, there should be a plurality of acts
performed during a period of time, unity of penal provision violated, and
unity of criminal intent or purpose, which means that two or more
violations of the same penal provisions are united in one and the same
intent or resolution leading to the perpetration of the same criminal
purpose or aim.
In appearance, a delito continuado consists of several crimes
but in reality there is only one crime in the mind of the perpetrator.
Examples of Delito Continuado.

While it is convenient that each count or paragraph

should contain only one offense or one specific act of treason for
the sake of clearness, this does not justify the inference or claim
that all of the acts charged under one count or paragraph should
be considered as only one act of offense, and proof of all the acts
included therein is necessary to prove the charge.
f.

a.

The single larceny rule

1)
2)
3)
4)

Effect of Failure of the Prosecution to Prove All Acts

Charged Where Each Act Constitutes Treason by Itself
b.
If a person is being charged with four specific acts under
one count, and each constitutes a complete act of treason by
itself independently of the others, the failure of the prosecution to
prove all does not entitle the accused to be acquitted of the whole
count or of all the charges contained therein when any one or
more of the acts are proved.

The concept was not applied

1)
2)
3)
4)
5)

g.

Robbery in Band
An information which charges the commission of "robbery
in a band or brigandage" and alleges facts showing the

Theft of 13 cows;
theft of six roosters;
illegal charging of fees by lawyer from revenue victims;
Illegal approval of the application for the legalization of stay
of 32 aliens, constitutes only one crime

In Estafa committed on different occasions.

In Malversation and falsification on different ocassions
The 75 estafa cases was committed by conversion by agent
of collection from different customers on different dates.
Robbery and fencing are two separate crimes. Principle of
Delito Continuado is not applicable.
In a Single Information for murder for shooting three
persons where evidence did not show that a single shot
had slain three different persons, the appellant was
properly held liable for three separate murders and
sentenced to three separate penalties ofreclusion

6)

perpetrua.
In People v. Ducay several victims dying from separate
shots constitute separate offenses and if there is no
objection for duplicity, the accused should be convicted of
all offenses charged in one information.

It is not the act of pressing the trigger like a Thompson

submachine gun that determines the number of felonies committed, but
the number of bullets which actually produced them.
The firing of several bullets by the accused although resulting
from one continuous burst of gunfire, constitutes several acts. Each
person fell by different shots, is a victim of a separate crime of murder.

If the acts are so disconnected as to constitute separate and

distinct offenses or crimes, then of course, it would not be error to
charge each of said acts in different complaints but where the acts are
so related as to constitute in fact but one offense, then a complaint will
not be defective if the crime is described by relating two acts in the
description of one offense.
To be a complex crime, the offense must be a necessary means
for committing the other, but if one offense is to conceal the other, the
accused may be convicted for both offenses as in case of arson to
conceal homicide or falsification to conceal malversation.
OTHER CASES:

Exceptions to Rule on Duplicity

The rule on duplicity of offenses does not apply where the law
prescribes a single penalty for various offenses such as a complex crime
under Article 48 of the Revised Penal Code or special complex crime
such as Robbery with Homicide or with Rape or Rape with Homicide, or
Rebellion complexed with murder, robbery and kidnapping.

1)

Killing of four victims on the same occasion of the robbery is

robbery with quadruple homicide only one crime.

2)

Robbery with homicide and rape only one crime.

Accused who abducted the victim and had sexual
intercourse with her for several days is not guilty of separate
offense but the continuing offense of abduction with rape.

Rule on Complex Crimes

The precise language of the statute used in alleging the
commission of the crime is not necessary as long as in charging the
commission of a complex offense like that of Robbery with Homicide,
the information alleges each element of the component offenses with
the same precision that would be necessary if they were made the subject of a separate prosecution.
Thus, although the phrase by reason or on occasion of the robbery as provided for by the Revised Penal Code, was not literally used in
the recital of facts alleging the commission of the two crimes of robbery
with homicide, the information as filed sufficiently and distinctly alleges
the commission of the two crimes of robbery and homicide and
adequately informs the accused of the crime charged.
Under Article 48 of the Revised Penal Code, when a single act
constitutes two or more grave or less grave felonies, or when an offense
is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.

No Duplicity in Rape With Homicide

There is no duplicity in an information for rape with homicide.
Where seven persons committed rape with homicide in
conspiracy with each other, every one of the seven accused may separately be charged for rape with homicide.
There is no duplicity in a charge of estafa committed by the
accused for misappropriation of the purchase price of several lots
owned by the Hometrust Corporation which were fraudulently received
by the accused against seven lot buyers on the pretext that she was
authorized to do so and which she misapplied to her personal use
instead of remitting the money to the owner corporation, and seven
other separate informations of estafa committed against the seven lot
buyers.
The crime of estafa committed against the corporation and
those committed against the lot buyers are definitely separate felonies.

The throwing of a hand grenade at the President with the

intention of killing him resulting in the death and injuries of several
persons constitutes the complex crime of murder with attempted
murder.

They were dictated by different criminal intents, committed

under different modes of commission provided by the law on estafa,
perpetrated by different acts, consummated on different occasions, and
caused injury to different parties.

For a criminal complaint or information to charge the commission of a complex crime, the allegations contained therein do not
necessarily have to charge a complex crime as denned by law.

a.

The Principle of Absorption

1)

It is sufficient that the information contains allegations which

state that one offense was a necessary means to commit the other.
The information in question in the present case contains
allegations properly charging the commission of the complex crime of
incriminatory machinations through unlawful arrest, and the court a quo
committed error when it ordered its dismissal.

Only in the event where all the amount of the opium

possessed and seized be in its totality the same as that
which was possessed with the sole purpose of being
delivered as the matter or subject of a sale previously
agreed upon, could it be said that the possession of the
opium was a necessary means to effect the delivery by
reason of the sale, and that the sale agreed upon was the
sole reason for the possession of the opium seized.

Where, however component offenses are not alleged in the

information as required by Sections 8 and 9 of Rule 110 they cannot
give rise to a special complex crime, consistent with the right of the
accused to be informed of the nature and cause of the accusation
against them.
A complex crime is committed when two persons are killed as a
result of the same murderous act of the accused.
When each one of the two deceased was killed by different and
separate sets of shots, fired respectively, through two independent sets
of acts of the accused, each one aimed exclusively at a victim, for each
victim killed, there is a separate and independent crime of murder.
WHEN ONE OFFENSE IS NECESSARY MEANS FOR COMMITTING
THE OTHER
a. Falsification of cedulas to commit malversation.
b. Estafa thru falsification.
When two or more acts combined in the commission of one
crime, the complaint is not necessarily defective because it contains a
description of two acts.

Drugs Cases
In People v. Salamat, the illegal possession of 137 cans of
opium and sale of 37 cans of opium was held as two
isolated acts and not one, each of which is punishable in
themselves.

2)

When Possession of Drugs Absorbed in Sale

In People v. Lacerna, possession of marijuana was held as
absorbed in the sale thereof, except where the seller is
further apprehended in possession of another quantity of
the prohibited drugs not covered by or included in the sale
and which are probably intended for some future dealings
or use by the seller.

Where aside from selling one block of marijuana to the

arresting officers, accused-appellants were also caught in
possession of another 12.04 kilograms of marijuana in twelve
individually wrapped blocks, hidden in a bag under a table in their
house.
Their possession thereof gives rise to a disputable
presumption under Section 3(j), Rule 131 of the Rules of Court,
that they were the owners of the same.

The Court held that: "This argument is specious in rebellion

b.

Forcible Abduction Absorbed in Rape

cases."

Where complainant was forcibly taken away for the

purpose of sexually assaulting her, then the rape so committed
may absorb the forcible abduction.

In the light of the Hernandez doctrine, the prosecution's

theory must fail.
The rationale remains the same.

The trial court, thus, correctly held that the rape charged
and proved in Criminal Case No. 44263 already absorbed the
forcible abduction with rape complained of in Criminal Case No.
44264.
c.

All crimes, whether punishable under a special law or general

law, which are mere components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and can
not be isolated and charged as separate crimes in themselves.

Absorption does not include special laws

On petitioners' claim that the charge for violation of
Article 365 of the RPC "absorbs" the charges for violation ofP.D.
No. 1067, P.D. No. 984, and R.A. No. 7942, suffice it to say that a
mala in se felony (such as Reckless Imprudence Resulting in
Damage to Property) cannot absorb mala prohibita crimes (such
as those violating P.D. No. 1067, P.D. No. 984, and R.A. No. 7942).

The Hernandez and other related cases mention common

crimes as absorbed in the crime of rebellion.
These common crimes refer to all acts of violence such as
murder, arson, robbery, kidnapping, etc., as provided in the Revised
Penal Code.

REBELLION CANNOT BE COMPLEXED WITH ANY OTHER OFFENSE

COMMITTED IN THE COURSE THEREOF

The attendant circumstances in the instant case, however,

constrain us to rule that the theory of absorption in rebellion cases must
not confine itself to common crimes but also to offenses under special
laws which are perpetrated in furtherance of the political offense.

The rule was reiterated in Enrile u. Amin, where the Supreme

Court ruled that the crime of Harboring or Concealing a Criminal was
absorbed by the crime of rebellion for which Senator Enrile had already
been charged and can not therefore be made the subject of a separate
criminal action.
The Supreme Court went on to explain:

Petitioner's alleged act of harboring or concealing which was

based on his act of conspiring with Honasan was committed in con nection with or in furtherance of rebellion and must now be deemed as
absorbed by, merged in, and identified with the crime of rebellion
punished in Articles 134 and 135 of the RPC.
Thus, national, as well as international laws and jurisprudence
overwhelmingly favor the proposition that common crimes, perpetrated
in furtherance of a political offense, are divested of their character as
"common" offenses, and assume the political complexion of the main
crime of which they are mere ingredients and consequently, cannot be
punished separately from the principal offense, or complexed with the
same, to justify the imposition of a graver penalty.

"The crime of rebellion consists of many acts.

It is described as a vast movement of men and a complex net of intrigues
and plots.
Jurisprudence tells us that acts committed in furtherance of the rebellion
though crimes in themselves are deemed absorbed in the one single crime of
rebellion.
In this case, the act of harboring or concealing Col. Honasan is clearly a mere
component or ingredient of rebellion or an act done in furtherance of the rebellion.
It cannot therefore be made the basis of a separate charge. The case of
People v. Prieto is instructive."

In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action.
Its very nature partakes of a deed or physical activity as
opposed to a mental operation.
This deed or physical activity may be, and often is, in itself a
criminal offense under another penal statute or provision.
Even so, when the deed is charged as an element of treason it
becomes identified with the latter crime and can not be the subject of a
separate punishment, or used in combination with treason to increase
the penalty is Article 48 of the Revised Penal Code provides.
Just as one can lot be punished for possessing opium drug, in a
prosecution for smoking the identical drug, and a robber cannot be held
guilty of coercion or trespass to a dwelling in a prosecution for robbery,
because 3ossession of opium and force and trespass are inherent in
smoking and in robbery respectively, so may not a defendant be made
liable for murder as a separate crime or in conjunction with another
offense where, as in this case, it is averred as a constitutive ingredient
of reason.
THE PRINCIPLE OF ABSORPTION IN REBELLION APPLIES TO
SPECIAL LAWS
The prosecution tries to distinguish by contending that
harboring or concealing a fugitive is punishable under a special law
while the rebellion case is based on the Revised Penal Code; hence,
prosecution under one law will not bar a prosecution under the other.

The political
demonstrated.

motive

of

the

act

should

be

In such cases, the burden of demonstrating political motive falls

on the defense, motive being a state of mind which the accused, better
than any individual knows.

In People v. Elias Rodriguez, the accused, after having pleaded

guilty and convicted of the crime of rebellion, faced an independent
prosecution for illegal possession of firearm.

Both purpose and overt acts are essential components of the

crime. With either of these elements wanting, the crime of rebellion
legally does not exist.
In fact, even in cases where the act complained of were
committed simultaneously with or in the course of the rebellion, if the
killing, robbing, etc., were accomplished for private purposes or profit,
without any political motivation, it has been held that the crime would
be separately punishable as a common crime and would not be
absorbed by the crime of rebellion.
ILLEGAL POSSESSION OF FIREARM AND UNLAWFUL KILLING
WITH THE USE THEREOF

Conceding the absence of a complex crime of rebellion with

murders, etc., still, by his plea of guilty, the accused-appellant has
admitted all the overt acts described in the information; and that if any
of such acts constituted an independent crime within the jurisdiction of
the lower court, then the averment in the information that it was
perpetrated in furtherance of the rebellion, being a mere con clusion,
cannot be a bar to appellant's conviction and punishment for said
offense, he having failed, at the arraignment, to object to the
information on the ground of multiplicity of crimes charged."

The crime of illegal possession of firearm, in its simple form, is

committed only where the unlicensed firearm is not used to commit any
of the crimes of murder, homicide, rebellion, insurrection, sedition or
attempted coup d'etat.
either:
1)

as essential ingredient in the crimes of rebellion,

insurrection, sedition or attempted coup d'etat; or

2)

as an aggravating circumstance in murder or homicide.

Neither can accused-appellant be charged with simple illegal

possession.
The same may only done where no other crime is committed.
An accused cannot be convicted of homicide or murder with
"the use of the unlicensed firearm as aggravating," inasmuch as said
felonies are not charged in the information but merely mentioned as the
result of the use of the unlicensed firearm.

An accused may, moreover, be charged with as many crimes as

defined in our laws even if these arose from one incident.
Accused-appellant was not arraigned for homicide or murder.
Thus, where a single act is directed against one person but said
act constitutes a violation of two or more entirely distinct and separate
provisions of the Revised Penal Code or by a specified law as the RPC,
the prosecution of one is not a bar to the other, but such crimes should
be alleged in separate information.
There is no complex crime of illegal possession of Firearm used
in Homicide but they may be filed separately (qualified illegal possession of firearm is only one offense).
People v. Deunida, reiterated the same principles, but pointed
out that the use of unlicensed firearm must be alleged, otherwise, the
crime is only murder.

In case homicide or murder is committed with the use of

unlicensed firearm, such use of unlicensed firearm shall be merely
considered as aggravating.
R.A. No. 8294 amended P.D. No. 1866 abandoned previous
rulings that qualified use of firearms and murder are separate offenses.

The Court ruled:

"An examination of the record, however, discloses that the crime with
which the accused is charged in the present case which is that of illegal
possession of firearm and ammunition is already absorbed as a
necessary element or ingredient in the crime of rebellion with which the
same accused is charged with other persons in a separate case and
wherein he pleaded guilty and was convicted

Instead, illegal possession of firearms is merely to be taken as

an aggravating circumstance in the homicide case.

Otherwise, the use of unlicensed firearm would be treated

Abandonment of Doctrine
EFFECT OF FAILURE TO OBJECT TO INDEPENDENT PROSECUTION
FOR ILLEGAL POSSESSION

to Presidential Decree No. 1866, separate prosecutions for homicide and

illegal possession are no longer in order.

conclusively

It is not enough that overt acts of rebellion are duly proven.

This does not detract, however, from the rule that the
ingredients of a crime form part and parcel thereof, and hence, are
absorbed by the same and cannot be punished either separately
therefrom or by the application of Article 48 of the Revised Penal Code.

What makes the former a felony is criminal intent (dolo)

or negligence (culpa); what makes the latter crimes are the
special laws enacting them.

The celebrated case of Enrile v. Salazar, reiterated the

Hernandez Rule, which ruled out the complexing of rebellion witl-any
other offense committed in its course under either of the clauses of
Article 48 of the Revised Penal Code either as a means necessary to its
commission or as an unintended effect of an activity that constitutes
rebellion.

In deciding if the crime committed is rebellion, not murder, it

becomes imperative for our courts to ascertain whether or not the act
was done in furtherance of a political end.

Under the present rule, the unauthorized use of licensed or

unlicensed firearm is simply an aggravating circumstance in the
commission of homicide or murder and no longer a separate offense,
effectively modifying People v. Quijada, and its progeny.
Thus, it has been held that the principle of absorption does not
apply to illegal possession of firearms in connection with the crime of
subversion but simply describes the mode or manner by which the
violation of Section 1 of P.D. No. 1866 was committed so as to qualify to
the penalty of death.
The charge should therefore be amended to simple illegal
possession of firearm, and was accordingly deemed amended by the
Supreme Court.
It should, however, be noted that under existing laws (R.A. No.
8294) if homicide or murder is committed with the use of an unlicensed
firearm, such use of unlicensed firearm shall be considered merely as an
aggravating circumstance and cannot be the subject of a separate
prosecution.

Enrile Doctrine Not Applicable in Subversion

Hence, he cannot be convicted of any of these crimes without

violating his right to be informed of the nature and cause of the
accusation against him, not to mention his right to due process.
Following the doctrine enunciated in People v. Molina and
People v. Lazaro, among others, the possession of firearms against
accused-appellant merely as an aggravating circumstance.
As the law stands today, there can be no longer be a separate
conviction of the crime of illegal possession of firearms under P.D. No.
1866 in view of the amendments introduced by Republic Act No. 8294.
Instead, illegal possession of firearms is simply taken as an
aggravating circumstance in murder or homicide pursuant to Section 1
of R.A. No. 8294.
THE LAW HAS A RETROACTIVE EFFECT ONLY IF IT IS FAVORABLE
TO THE ACCUSED
R.A. No. 8294 is given retroactive effect in the sense that the
use of unlicensed firearm in the commission of a crime is considered
merely as an aggravating circumstance and not as a separate crime.
It is only when the new law will be advantageous to the accused
that the Law may be given retroactive effect, such as when it will spare
him from a separate conviction for the crime of illegal possession of
firearm.
Thus, where at the time accused was charged in two separate
informations, one with robbery with homicide with the use of an
unlicensed firearm punishable with reclusion perpetua to death and
another for the use of an unlicensed firearm punishable by death, the
existing law allows the filing of the separate informations, under existing
law, the provisions considering the use of an unlicensed firearm in the
commission of the crime as aggravating cannot be given a retroactive
effect, lest it would acquire the character of an ex post facto law.
Should the Court appreciate the use of an unlicensed firearm,
the higher penalty of death shall be imposed.
Hence, the penalty should be reclusion perpetua.

THE PRESENT LAW ON ILLEGAL POSSESSION OF FIREARMS

In People v. Asuncion, it was held that the crime of illegal
possession of firearms under P.D. No. 1806 is not absorbed in the charge
of subversion under R.A. No. 1700.

Where murder or homicide results from the use of an unlicensed

firearm, the crime is no longer qualified illegal possession, but murder
or homicide, as the case may be.

Political Motive Must Be Shown

In People u. Louedioro, the court held that divested of its
common complexion, any ordinary act, however, grave, assumes a
different color by being absorbed in the crime of rebellion, which carries
a lighter penalty than the crime of murder.

In such a case, the use of the unlicensed firearm is not

considered as a separate crime but shall be appreciated as a mere
aggravating circumstance.
In view of the amendments introduced by Republic Act No. 8294

On the separate charge of illegal possession of firearm, this is

not allowed under the new law.
Since this is favorable to the accused, it shall be given
retroactive effect.
Thus, while it is true that under R.A. No. 8294, the use of an
unlicensed firearm aggravates the crimes of homicide or murder, the
provisions of the said law cannot apply to the case at bar because the
crime was committed prior to the effectivity of the said law on July 6,

1997.
The provisions of R.A. No. 8294 may be applied retroactively so
as to prevent conviction of the separate crime of illegal possession of
firearm because this accrues to the benefit of the appellant.
It cannot, however, be applied retroactively to aggravate the
crime of homicide or murder.

It was, however, held in Lontok, Jr. v. Gorgonio, that if one

offense is light, there is no complex crime. Separate informations must
be filed.
Example:
Damage to property in sum of P780.00 and Slight Physical Injuries thru
Reckless Imprudence cannot be made in a single information if slight
physical injuries prescribes, it must be dismissed.

Illegal Possession As Separate offense

It does not, however, mean that there can no longer be any
prosecution for the crime of illegal possession of firearm.

Without mentioning Lontok, Jr. v. Gorgonio, the Supreme Court

in Buerano v. Court ofAppeals, reiterated the rule in People v. Buan
Reiteration of Lontok v. Gorgonio:

In general, all pending cases involving illegal possession of

firearm should continue to be prosecuted and tried if no other crimes
expressly indicated in Republic Act No. 8294 are involved (murder or
homicide under Section 1 and rebellion, insurrection, sedition or
attempted coup d' etat under Section 3.
Thus, where the other offense charged in a Criminal Case for
violation of COMELEC Resolution No. 3045 is not one of those
enumerated under R.A. No. 8294, the respondent judge was correct in
not quashing the information in the Criminal Case.
It was however, made clear in the en bane decision in Agote u.
Lorenzo, that there can be no separate conviction for illegal possession
of firearm where another crime was commited at the same time for
instance, violation of the COMELEC resolution on gun ban even if the
firearm was not being actually used or discharged, holding that there
can be no separate offense of illegal possession of firearms and
ammunition if there is another crime committed such as illegal
possession of dangerous drugs.
Reckless Imprudence Cases
Where both damage to property with less serious physical
injuries were caused by one single act of defendant, the information
cannot be split into two one for physical injuries and another for
damage to property.
If there is damage to property only, the amount fixed therein
should be imposed but if there are also physical injuries, there should be
an additional penalty for the latter.
The information cannot be split into two; one for physical
injuries and another for the damage to property, for both the injuries
and the damages committed were caused by one single act of physical
injuries and damage to property.
The rule was clarified in People u. Cano:
"From the viewpoint of trial practices and justice, it is, to say the least,
doubtful whether the prosecution should split the action against the
defendant, by filing against him several informations, namely, one for
damage to property and serious and less serious physical injuries, thru
reckless negligence, before the Court of First Instance, and another for
slight physical injuries thru reckless negligence before the justice of the
peace or municipal court. One thing is, however, certain.
Such splitting of the action would work unnecessary inconvenience to the
administration of justice in general and to the accused in particular, for it would
require the presentation of substantially the same evidence before two different
courts, the municipal court and the Court of First Instance.
Worse, still, in the event of conviction in the municipal court and appeal to
the Court of First Instance, said evidence would still have to be introduced once more
in the latter court."

As stated in People v. Buan:

The Court in Reodica v. Court ofAppeals, 97 held that reckless imprudence

resulting in slight physical injuries and damage to property is not a complex crime and
cannot be the subject of a single information, they are separate offenses subject to
distinct penalties, reiterating the ruling in Lontok u. Gorgonio.

The two offenses cannot be complexed because each offenses is

not a grave or less grave felony.
The two offenses may, however, be consolidated since under
the expanded jurisdiction of the municipal trial courts damage to
property thru reckless imprudence now falls under its jurisdiction.
SEC. 14.
Amendment or Substitution
AMENDMENT EXPLAINED: WHEN LEAVE OF COURT BEFORE PLEA
REQUIRED
Under the former rule, amendment whether as to form or
substance is a matter of right before plea.
The rule was, however, amended by requiring "any amendment
before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made
only upon motion by the prosecutor, with notice to the offended party
and with leave of court."
The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the offended
party.
The amendment is designed to remove the absolute control of
the prosecution of a criminal action after the filing of information even
before a plea is entered which seems to be the case as provided for in
the first sentence of the first paragraph that the complaint or
information may be amended, in substance or form, without leave of
court, at any time before the accused pleads; however, under the
amended rule, any amendment before plea, which lessens the gravity of
the offense charged and/or excludes any of the accused from the
complaint or information, must be filed with leave of court and the
parties, especially the private complainant shall be duly furnished
copies of the order resolving the motion therefor and explaining the
reasons for such disposition.
This is in accord with the ruling in Crespo v. Mogul, It is intended
to prevent the prosecution from abusing the process of amendment
before plea by dropping any of the accused from the information or
reducing the offense charged whether the accused had been arraigned
or not and whether it was due to a reinvestigation of the fiscal or a
review by the Secretary of Justice, similar to what happened in the case
of Dimatulac u. Vilon.
Once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter
should be addressed for the consideration of the Court.

Reason and precedent both coincide in that once convicted or acquitted

of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act.

The only qualification is that the action of the Court must not
impair the substantial rights of the accused, or the right of the people to
due process of law.

For the essence of quasi-offense of criminal negligence is the execution of an

imprudent or negligent act that, if intentionally done, would be punishable as a felony.

Thus, the complaint cannot be withdrawn by the Fiscal without

the court's consent.

The law penalizes thus the negligent or careless act, not the result thereof.
The gravity of the consequence is only taken into account to determine the
penalty, it does not qualify the substance of the offense.

The provincial fiscals are not clothed with power, without the
consent of the court, to dismiss or nolle prosequi criminal actions
actually instituted and pending further proceedings.

And, as the careless act is single, whether the injurious result should affect
one person or several persons, the offense (criminal negligence) remains one and the
same, and can not be split into different crimes and prosecution.

The power to dismiss is vested solely in the court, i.e., the

presiding judge.

The Supreme Court stressed, however, that the real and

ultimate test of the independence and integrity of the trial court is not
the filing of the motions to suspend proceedings and defer arraign ment
at that stage of the proceedings but the filing of a motion to dismiss or
to withdraw the information on the basis of a resolution of the petition
for review reversing the Joint Resolution of the investigating prosecutor.
Before that time, the pronouncement in Crespo v. Mogul that
"once a complaint or information is filed in Court any disposition of the
case as its dismissal or the conviction of the accused or acquittal of the
accused rests in the sound discretion of the court, did not yet become
relevant or applicable."

However, once a motion to dismiss or withdraw the information

is filed the trial judge may grant or deny it, not out of subservience to
the Secretary of Justice, but in faithful exercise of judicial prerogative.
The trial judge must himself be convinced that there was indeed
no sufficient evidence against the accused, and this conclusion can be
arrived at only after an assessment of the evidence in the possession of
the prosecution.
What is imperatively required is the trial judge's own
assessment of such evidence, it not being sufficient for the valid and
proper exercise of judicial discretion merely to accept or reject the
prosecution's word for its supposed insufficiency or to simply rely on
Crespo u. Mogul.
FINDING OF GRAVE ABUSE OF DISCRETION AND NOTICE TO
PARTIES
In the absence of a finding of grave abuse of discretion, the
court's denial of a motion to withdraw information pursuant to the
Secretary's resolution is void.
For this reason the amendment requires parties, especially the
private complainant to be duly furnished copies of the order resolving
the motion therefor and explaining the reasons for such disposition.
The amendment under the second par may only be made
especially with notice to the offended party.
What may be Amended
Only a valid information may be amended.
An information filed before the effectivity of the law punishing
the offense may not be amended after the law had come into effect.
Time to Amend
Amendment of an information may be made at any time before
the accused enters a plea to the charge."
The prosecution is free to amend the information without leave
of court before arraignment.
Provided, the amendment does not downgrade the nature of the
offense charged or excludes any accused from the complaint or infor mation.
RIGHTS

OF

ACCUSED

PREJUDICED

Change of Dates of Commission of Crime

Thus, the change in the date of the commission of the crime of
Grave Coercion from June 24, 1981 to August 28, 1981 is more formal
than substantial and would not prejudice the rights of the accused, as
the said proposed amendment would not alter the nature of the offense
of grave coercion.
The difference in dates is only about two months and five days,
which disparity is amply comprehended within the allegation of "on or
about."

Court Must Make Independent Assessment

TEST AS WHEN
AMENDMENT

The amendment in a libel case which merely specifies the

specific address in Makati where the libelous articles were first printed
and published is merely formal.

BY

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 evi dence the
accused might have, would no longer be available after the amendment
is made, and when any evidence the accused might have would be
inapplicable to the complaint or information as amended.
On the other hand, an amendment which merely states with
additional precision something which is already contained in the original
information, and which therefore, adds nothing essential for conviction
for the crime charged is an amendment as to form that can be made at
any time.
An amendment which neither adversely affects the substantial
right of the accused, e.g., does not deprive him of his right to invoke
prescription nor affects and/or alters the nature of the offense originally
charged nor involves a change in the basic theory of the pros ecution so
as to require the accused to undergo any material change or
modification in his defense is an amendment as to a matter of form.

Nor will the amendment or correction cause any surprise on the

accused, who has been furnished the affidavits of the prosecution
witnesses, all of which uniformly state that the date of the commission
was August 28, 1981.
The amendment of the complaint for rape changing the date of
commission of the crime alleged in the original information from
February 13, 1976 to February 5, 1976 as testified to by the com plainant, a difference of only eight (8) days was only a matter of form
and did not prejudice the rights of the appellant.
Under Section 10 of Rule 110 of the Rules of Court "it is not
necessary to state in the complaint or information the precise time at
which the offense was committed except when time is a material
ingredient of the offense, but the act may be alleged to have been
committed at any time as near to the actual date at which the date of
the offense was committed as the information or complaint will permit."
The phrase "on or about" employed in the information does not
require the prosecution to "prove any precise date which is not so
remote as to surprise and prejudice the defendant.
In case of surprise, the Court may allow an amendment of the
information as to time and an adjournment to the accused, if necessary
to meet the amendment."
In the case of People u. Riuera, the amendment of the
information as to the date of the commission of the offense from March
2, 1964 to March 2, 1965 which was due to a clerical error in the last
digit of the year, the difference of one year or twelve months was
merely a matter of form and does not prejudice the rights of the accused, reiterating the ruling in the case of U.S. v. Ramos, where the
Fiscal was permitted to amend the date of the commission of the
offense from June 16, 1910 to June 1911.
Rule Not Applicable Where Disparity is Great
The petitioner's argument that the time or date of the
commission of the offense is not a material ingredient of the crime of
qualified theft cannot be given much weight in this case because the
disparity of time between the years 1964 and 1969 is so great as to
defy approximation in the commission of one and the same offense.
While it has been held that except when time is a material
ingredient of an offense, the precise time of commission need not be
stated in the information, this court stated that this does not mean that
the prosecution officer may be careless about fixing the date of the
alleged crime, or that he may omit the date altogether or that he may
make the allegation so indefinite as to amount to the same thing.
The prosecution is given the chance to allege an approximation
of time of the commission of the offense and the precise date need not
be stated but it does not mean that it can prove any date remote or far
removed from the given approximate date so as to surprise and prejudice the accused.
In Arevalo u. Nepomuceno, the amendment which was allowed
was the allegation in the information that B carried the revolver and C,
the knife, instead ofC carrying the revolver and B, the knife.
In People v. Joseph Casey, the amendment after arraignment
was to include one of the accused Ricardo Felix alias "Carding Tuwad"
who was then armed with a firearm.
The Supreme Court, after stating the test as to whether a
defendant is prejudiced by the amendment, stated that: "A look into our
jurisprudence on the matter shows that an amendment to an
information introduced after the accused has pleaded not guilty thereto,

which does not expose the accused to a charge which could call for a
higher penalty, does not affect the essence of the offense or cause
surprise or deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of substance
not prejudicial to the accused and, therefore, not prohibited by Section
13, Rule 110 of the Revised Rules of Court.
In U.S. v. dela Cruz, the amendment in the information for
brigandage sought to be made was to eliminate the words "led by one
Silverio" and to substitute the words "under the command of Luciano
San Miguel" after the prosecution rested but before the presentation of
the evidence of the defense.
The Supreme Court allowed the said amendment holding that it
did not prejudice in any sense the right of the accused as "it did not
affect the essence of the crime charge, but merely an accidental detail
of the same" and it did not deprive the accused of an opportunity to
produce evidence for their defense if they had desired, in relation to
said amendment "Consequently, the accused is not thereby denied any
opportunity to present evidence in his defense."
The foregoing cases should, however, be distinguished from the
case of People u. Opemia, where the difference in dates was from 1947
to 1952.
The difference in date could not be attributed to a cleri cal error
because the difference is not only in the year but also in the month and
the last two digits of the year, and the difference "is so great as to defy
approximation in the commission of one and the same offense."
Discharge to be State witness under Witness Protection Rule
The foregoing rule applies in withdrawing or discharging to be a
state witness before plea some accused under the witness protection
rule without the need of proving the requirement for the discharge of a
state witness despite a pending motion for their discharge under
Section 17, Rule 119 unless they are retained in the information in
which case section 17, Rule 119 is the applicable rule.

In People v. Zulueta, an information for Malversation of public

property was amended with the additional assertion that in permitting
the misappropriation, the accused acted in conspiracy with
Commissioner Llanes who was subsequently booked for malversation of
the identical property also in the same court.
The Supreme
amendment.

Court

held

that

there

was

substantial

Surely, the preparations have to be radically modified to meet

the new situation.
For undoubtedly, the allegation of conspiracy enables the prosecution to attribute and ascribe to the accused all the acts, knowledge,
admissions and even omissions of his co-conspirator Angel Llanes in
furtherance of the controversy.
The amendment thereby widens the battlefront to allow the use
by the prosecution of newly discovered weapons, to the evident
discomfiture of the opposite camp.
The Supreme Court distinguished the case from Regala by
explaining that the amendment therein did not modify the basic theory
of the prosecution that the accused had killed the deceased by a volun tary act and deed.
Here there is an innovation, or the introduction of another
alternative imputation, which, to make matters worse, is inconsistent
with the original allegations.
In People v. Court of Appeals, the accused Sixto Ruiz who was
charged with murder entered a plea of not guilty.
After a reinvestigation, the prosecution moved to amend the
information with the inclusion of two other accused alleging conspiracy.
The Supreme Court, citing Regala, held that the amendments
would not prejudice the accused whose participation as principal in the
crimes charged did not change.
In People v. Montenegro, the accused was charged with robbery
before the CFI of Quezon City and entered a plea of not guilty.

PROHIBITED
AMENDMENTS;
AMENDMENTS

WHAT

ARE

SUBSTANTIAL

Amendments that are prohibited after the accused has pleaded

are amendments in substance. And the substantial matters in the
complaint or information is the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other
matters are merely of form.
Habitual Delinquency
Additional allegations of habitual delinquency and recidivism is
not a substantial amendment.
They do not have the effect of charging another offense
different or distinct from the charge of qualified theft contained in the
information.
Neither do they tend to correct any defect in the jurisdiction of
the trial court over the subject-matter of the case.
The said new allegations relate only to the range of the penalty
that the court might impose in the event of conviction.
They do not alter the prosecution's theory of the case nor
possibly prejudice the form of defense the accused has or will assume
Additional Allegations of Conspiracy
In Regala v. CFI, the defendant was charged with murder.
After the plea, the fiscal presented an amended information
wherein two other persons were included as co-accused.
There was the further allegation that the accused and his codefendants had conspired and confederated together and mutually
aided one another to commit the offense charged.
The admission of the amendment was upheld by the Supreme
Court holding that the amendment is a mere matter of form.

Before the trial could proceed, the fiscal sought to amend the
complaint:
1)
2)
3)

from robbery to robbery in an uninhabited place;

alleging conspiracy among all accused; and
deleting all items, articles and jewelries alleged to have
been stolen in the original information substituting them
with a different set of items.

The Supreme Court citing and quoting People v. Zulueta (supra),

held that the allegation of conspiracy among all the private
respondents-accused which was not previously included in the original
information is a substantial amendment saddling the respondents with
the need of a new defense in order to meet a different situation in the
trial court.

AMENDMENTS AFTER PLEA CHANGING THE NATURE OF OFFENSE

CHARGE IS PROHIBITED
The Supreme Court held that the proposed amendments in the
amended information are clearly substantial and have the effect of
changing the crime charged from "Robbery" punishable under Article
209 to "Robbery in an Uninhabited Place" punishable under Article 302
of the Revised Penal Code, thereby exposing the private-respondent
accused to a higher penalty as computed to the penalty imposable for
the offense charged in the original information to which the accused had
already entered a plea of "not guilty" during their arraignment.
Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different articles from those originally complained of affects the essence of the imputed crime, and would deprive
the accused of the opportunity to meet all the allegations in the
amended information, in the preparation of their defenses to the charge
filed against them.
It will be observed that private respondents were accused as
accessories after the fact of the minor who had already been convicted
of robbery of the items listed in the original information.
To charge them now as accessories after the fact for a crime
different from that committed by the principal, would be manifestly
incongruous as to be allowed by the court.
An amendment deleting the word "orally" from a charge of
grave threats to conform to the evidence is merely a formal amendment
since it did not affect the nature of the crime as originally charged.
The particular manner in which the threat made is not a
qualifying ingredient of the offense.

Section 11 of Rule 119 provides that when it becomes manifest

at any time before judgment that a mistake has been made in charging
the proper offense, and the accused cannot be convicted of the offense
charge, or of any other offense necessarily included therein, the
accused shall not be discharged, if there appears to be good cause to
detain him.
In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the
proper offense.
The rule, therefore, does not apply where the accused may be
convicted of any other offense necessarily included in the offense
charged.
Where the original complaint for rape charged her father with
the crime of rape allegedly committed on or about the 13th day of
February but during the trial, the complaining witness testified that she
was raped by her father on February 5 of the same year, there was no
need for the court to dismiss the original complaint and direct the fiscal
to file the proper complaint.
The trial judge could have simply granted the motion for leave
to amend the complaint.
1)
2)

Amendment and Substitution Distinguished

Scope of Rule

The above section contains two parts: One authorizes the

amendment of an information or complaint (involving the same offense
or an offense which necessarily includes or is necessarily included in the
first information) in substance or form, without leave of court, at any
time before the defendant pleads, and thereafter, only as to matters of
form.

The change may also be made even if it may result in altering the nature of
the charge so long as it can be done without prejudice to the rights of the defendant."

Be that as it -may, it is quite plausible under Section 14 of Rule

110 that, instead of an amendment, an information for homicide may
also be dismissed before the accused pleads, to give way to the filing of
a new information for murder.
In Galvez v. Court of Appeals the Supreme Court thru Justice
Regalado extensively discussed amendments by substitution of a
defective information by the correct one.
That is from the filing of the information up to and before trial,
while amendments during trial and be fore judgment is governed by
Section 11, Rule 119 when a mistake has been made in charging the
proper offense.
Perusal of the 1985 Rules on Criminal Procedure will show that
there are only two provisions concerning the dismissal of an information
other than on motion of the accused, namely, Section 14 of Rule 110
and Section 11 of Rule 119.
But then, it may be contended that these rules speak of a
dismissal by the court when there is a mistake in charging the proper
offense, but make no mention of a dismissal made upon application of
the prosecution. That is not necessarily so.
(a)

Rule 119 is the rule specifically governing the trial stage

where evidence is necessarily being presented, hence, the trial
court is now in a better position to conclude that manifestly the
accused cannot be convicted of the offense charged or of one that
it necessarily includes.

Addition of Intent to Gain

Where intent to gain could already be inferred from the
allegations of the information, an amendment which merely states with
additional precision something which is already contained in the complaint for robbery, and which therefore adds nothing essential to the
conviction for the crime charged is a formal amendment and can be
made at any time.
AMENDMENT TO ALLEGE OFFENSE COMMITTED IN RELATION TO
OFFICE
It has been held that after the case of homicide committed by a
PNP officer was transferred by the RTC to the Sandiganbayan after trial,
on the ground that the offense was committed in relation to the public
office of the accused and, therefore, falls under the jurisdiction of the
Sandiganbayan, an amendment to allege that the offense of homicide
committed by a member of the PNP was committed "in relation to his
office" may be made at any time before arraignment before the
Sandiganbayan, and indeed by leave of court at any time before
judgment is rendered by the Sandiganbayan, considering that such an
amendment would not affect the juridical nature of the offense charged
(i.e., murder), the qualifying circumstance alleged in the information, or
the defenses that accused may assert before the Sandiganbayan.

The other provides that, if it appears at any time before

judgment that a mistake has been made in charging the proper offense,
the court may dismiss the original complaint or information and order
the filing of a new one charging the proper offense (substitution),
provided the defendant would not be placed in double jeopardy.

It has been the rule that under the first paragraph of Section 14,
Rule 110, the amendment of the information may also be made even if
it may result in altering the nature of the charge so long as it can be
done without prejudice to the rights of the accused.

MERELY

Where the amendment was not substantial, no second plea is

necessary.

Consequently, an amended information for murder was filed

against the accused who were ordered re-arrested without the amount
of bail being fixed, the new charge being a capital offense.

NO NEED
FORMAL

OF

ARRAIGNMENT

WHERE

AMENDMENT

Amendment to Conform to Evidence Allowed

Amendments to conform to the evidence to be presented during
the trial is permissible.
MISTAKES TO CONFORM TO EVIDENCE
AMENDMENT BY SUBSTITUTION
If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one charging
the proper offense in accordance with Rule 119, Section 11, provided,
the accused would not be placed thereby in double jeopardy.

We do not discount the possibility of either the

prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that
would be a rare situation.

"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.

Hence, in the case of Dimalibot v. Salcedo, the accused therein

were originally charged with homicide and were released on bail.
However, the then provincial fiscal, after a review of the affidavits of the
witnesses for the prosecution, discovered that the killing complained of
was perpetrated with the qualifying circumstances of treachery, taking
advantage of superior strength, and employing means to weaken the
defense of the victim.

In other words, the amendment may be made before the

Sandiganbayan without surprising the accused or prejudicing his
substantive rights.

It would primarily be the function of the court to motu

proprio order the dismissal of the case and direct the filing of the
appropriate information.

Explaining Section 14 of Rule 110, the Supreme Court stressed:

Under the second paragraph, the court can order the filing of another
information to charge the proper offense, provided, the accused would not be placed
thereby in double jeopardy and that could only be true if the ofifense proved does not
necessarily include or is not necessarily included in the offense charged in the original
information."

The Court ruled therein that the amendment was proper,

pursuant to Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus:
"Here, these rules properly apply, since it is undisputed that the herein
accused were not yet arraigned before the competent court when the
complaint for homicide was amended so as to charge the crime of
murder.
Upon the authority of said rules, the amendment could therefore be made
even as to substance in order that the proper charge may be made.
The claim that such amendment can only refer to matters of specification
affecting the elements constituting the crime is not correct, for there is nothing in the
rule to show that the nature of the amendment should only be limited to matters of
specification.

Rule 119; Section 11, Court Initiates Substitution

This provision, therefore, is more directly and principally

directed to the trial court to invest it with the requisite authority
to direct by itself the dismissal and refiling of the informations
therein contemplated.
(b)

Rule 110, Section 14, Prosecutor Initiates Substitution

Rule 110, on the other hand, provides the procedural
governance for the prosecution of offenses. Section 14 thereof,
provides in its second (now third) paragraph the procedure and
requisites for the substitution of a defective information by the
correct one.
Although, just like Section 11 of Rule 119, the permissible
stage for effecting that substitution is "at any time before
judgment," unlike the latter situation it is sufficient that "it
appears x x x that a mistake has been made in charging the
proper offense, x x x."
The situation under said Section 14 contemplates a longer
time span, inclusive of the period from the filing of the information
up to and before trial.
Since no evidence has been presented at that stage, the
error would appear or be discoverable from a review of the
records of the preliminary investigation.
Of course, that fact may be perceived by the trial judge
himself but, again, realistically it will be the prosecutor who can
initially determine the same.
That is why such error need not be manifest or evident,
nor is it required that such nuances as offenses includible in the
offense charged be taken into account.
It necessarily follows, therefore, that the prosecutor can
and should institute remedial measures for the dismissal of the
original information and the refiling of the correct one, otherwise
he would be recreant to his duties.

In the subsequent case ofTeehankee, Jr. v. Madayag, et

al., however, Section 14 of Rule 110 was clarified to mean as
follows:
"It may accordingly be posited that both amendment and
substitution of the information may be made before or after the
defendant pleads, but they differ in the following respects:
a.

Amendment may involve either formal or substantial

changes, while substitution necessarily involves a substantial change from the original charge;

b.

Amendment before plea has been entered can be effected

without leave of court, but substitution of information must
be with leave of court as the original information has to be
dismissed;

c.

Where the amendment is only as to form, there is no need

for another preliminary investigation and the retaking of the
plea of the accused; in substitution of information, another
preliminary investigation is entailed and the accused has to
plead anew to the new information; and

d.

An amended information refers to the same offense

charged in the original information or to an offense which
necessarily includes or is necessarily included in the original
charge, hence, substantial amendments to the information
after the plea has been taken cannot be made over the
objection of the accused, for if the original information
would be withdrawn, the accused could invoke double
jeopardy.
On the other hand, substitution requires or presupposes that
the new information involves a different offense which does
not include or is not necessarily included in the original
charge, hence, the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an

amendment under the first paragraph of Section 14, Rule 110, or
a substitution of information under the second paragraph thereof,
the rule is that where the second information involves the same
offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information
is sufficient; otherwise, where the new information charges an
offense which is distinct and different from that initially charged, a
substitution is in order."
The foregoing pronouncements may be deemed to have
been accordingly modified by the amendment to Section 14 in the
sense that even before plea, the prosecution may not amend the
information to, downgrade the offense charged or drop any of the
accused from the information without leave of court.
Dismissal Only After New One is Filed
The second paragraph of Sec. 13 of the old Rule 110 was
amended in 1985 as follows: "The court shall dismiss the original
complaint or information upon the filing of a new one charging the
proper offense in accordance with Rule 110, Sec. 11."
Both rules were clarified so that the dismissal of the original
complaint or information would be done only after a new one has been
filed.
There is no double jeopardy if there is no identity of offenses.
If there is identity of offense, then the accused should be
convicted of the offense charged necessarily included in the offense
proven or of the offense proven necessarily included in the offense
charged.
SUBSTITUTION APPLIES ONLY WHERE NO JUDGMENT RENDERED
The amendment or the filing of a new case where there had
been a mistake in charging the proper offense after the dismissal of an
existing one, spoken of and therein provided for apply, only to an
original case where no judgment has as yet been rendered.
Much less does the said section apply to an appealed case.
Subject to Rule on Double Jeopardy
The reason is obvious and that is because the right to amend or

to file a new complaint or information charging the proper offense after

the dismissal of the original complaint or information is sub ject to the
rule on double jeopardy.
Where the original charge was that of less serious physical
injuries, for which the accused was convicted, the prosecution cannot on
appeal withdraw the case of physical injuries and file a case of direct
assault.
Whether the new charge for direct assault with less serious
physical injuries is by way of amendment or through a new information
is, immaterial since in both instances accused's former conviction would
be a bar to a subsequent prosecution for the second offense.
This was the dictum laid down in the case of People v. Bonotan,
and which doctrine was reiterated in the case of Tacas v. Cariaso. Thus:
"The charge of direct assault upon a person in authority with physical injuries
contained in the fiscal's information is not included in the charge contained in the
complaint of the chief of police, which is merely that of less serious physical injuries
unqualified by any allegation that those injuries were inflicted upon the offended
municipal councilor, admittedly a person in authority, while he was in the performance
of his official duties or on the occasion thereof, a qualification essential to the offense
charged in the information.
The converse is no less obvious, that is, the charge of direct assault upon a
person in authority with physical injuries as set out in the information necessarily
included the offense of less serious physical injuries charged in the complaint,
especially because in both the information and the complaint, the physical injuries
inflicted are alleged to have required medical assistance of a period of 14 days and
incapacitated the offended party from labor for the same period of time.
As proof that the offense charged in the information includes the offense
charged in the complaint, conviction of the defendants of this latter offense may,
without question, be had under the information if the other ingredients of the crime
charged in said information are not proved.
Hence, the defense of double jeopardy was well taken. The order of dis missal
was thus affirmed precisely on the very same constitutional ground relied upon in this
petition."

Limitation to Rule on Substitution

There are thus limitations before a
substitution of the original one may be allowed:
(a)
(b)
(c)

new

information in

that no judgment has as yet been rendered;

the accused cannot be convicted of the offense charged or of any
other offense necessarily included therein; and
the accused would not be placed in double jeopardy.

Thus, an amendment of the information to change the crime

charged from Homicide to the more serious offense of murder after the
accused had pleaded not guilty, not allowed.
To dismiss the homicide charged and file another charge for
murder will place the accused in double jeopardy.

The principle does not apply where the information for homicide
alleges "using superior strength" in which case, an amendment to
murder even if the prosecution have already presented two witnesses
maybe allowed as this is a mere formal amendment.
The body of the information already charges the crime of
murder.
NO DOUBLE JEOPARDY WHERE WITHDRAWAL MADE BEFORE
ARRAIGNMENT
In Galvez v. Court of Appeals (supra), the propriety of the
withdrawal of the original information for homicide before arraignment,
was upheld there having been no grave abuse of discretion in granting
the motion and, more importantly, in consideration of the fact that the
motion to withdraw was filed and granted before petitioners were
arraigned, hence, before they were placed in jeopardy.
Thus, even if a substitution was made at such stage, petitioners
cannot validly claim double jeopardy, which is precisely the evil sought
to be prevented under the rule on substitution, for the simple reason
that no first jeopardy had as yet attached.
Consequently, although the offenses charged under the three
new informations necessarily include those charged under the original
informations, the substitution of informations was not a fatal error.
A contrary ruling, would sacrifice substantial justice for formal
nuances on the altar of procedural technicalities.
Furthermore, petitioners' right to speedy trial was never violated
since the new informations were filed immediately after the motion to
withdraw the original information was granted.
Duty of Judge to Render Decision
Where a physical injury case has been filed before a Municipal
Judge, but, after trial, he is of the opinion that a frustrated murder was
committed, he should decide the case on the merits and not order the
filing of an information in the CFI.
It is the duty of the judge to render the decision as the evidence
warrant under the information as filed for serious physical injuries, and
not dismiss the case on his idea or belief that there was evidence of
intent to kill the intended victim.
Such order is void for having been issued with grave abuse of
discretion amounting to excess of jurisdiction.
In Teehankee v. Madayag An amendment from frustrated
murder to consummated murder due to supervening event of
death is merely formal.

b.

The difference in serial numbers of firearms in case of illegal

possession is fatal.

c.

In People u. Jaralba The Amendment consists of description of

wound from lacerated to stab wound to conform to the evidence.
There was no change of offense charged. No need to rearraign.

For certainly, a change from homicide to murder is not a matter

of form; it is one of substance with very serious consequence.

d.

An Amendment to allege that co-accused who were minors acted

with discernment is one of form as far as principal accused is
concerned.

e.

In People v. Padica, amendment as to correct name is merely a

matter of form. Issue as to identity must be raised during
arraignment in a demurrer on the ground of lack of jurisdiction
over his person, otherwise there is estoppel or waiver.

amendment be justified

under

the second

The answer is, No.

For the provision speaks not of amendment but of dismissal of
the information.
In other words, the provision contemplates the filing of a
substituted not an amended information.
But, it may be asked, can not the information for homi cide
against the petitioner be dismissed since no judgment has yet been
rendered and another information for murder be filed?
The answer, again, is No.
For the petitioner having pleaded not guilty to homicide, to
dismiss the charge against him so as to file another charge for murder
will place him thereby in double jeopardy.

was allegedly committed.

Said rule is based on the legal provision which prescribes the

essential requisites of a good complaint or information, one of which is
the allegation that the crime was committed within the jurisdiction of
the court where the complaint or information is filed and that said court
has authority to try it.
As was said in the case of United States v. Cunanan, the
jurisdiction of the Courts of First Instance of the Philippine Islands, in
criminal cases is limited to certain well-defined territory, so that they
can not take jurisdiction of persons charged with an offense alleged to
have been committed outside of that limited territory.

If all the acts material and essential to the crime and

requisite of its consummation occurred in one municipality or
province, the court of that municipality or province has sole
jurisdiction to try the case.

SEC. 15.
Place Where Action is to be Instituted.
Improper Venue

b.

Judges of the court of the Court of First Instance of a district

court must exercise their jurisdiction within the territorial limits of their
provinces and no further.

c.

Where the crime for violation of P.D. No. 532 known as the AntiPiracy and Anti-Highway Robbery Law of 1974 was committed
aboard a jeepney, the criminal action may be instituted and tried
in the court of any municipality or territory where the vehicle
passed during the trip including the place of departure and
arrival.

d.

In offenses committed on board a vessel in the course of its

voyage in the proper court of the first port of entry or of any
municipality or territory through which the vessel passed during
such voyage subject to the generally accepted principles of the
international law.

When Place of Crime Not Alleged

Where the place of the commission of the offense was not
specifically charged, the place may be shown by the evidence.
Thus, the insufficiency of the complaint charging adultery
without stating the place where the acts of adultery were committed, or
that the accused knew the woman was married at the time of
cohabitation, assigned as error as the conviction thereon amounted to a
conviction without informing the defendants of the nature and character
of the offense, and besides equivalent to a conviction without due
process of law.

Where the crime was actually committed is immaterial

where the crime was committed while the vessel is in transit.

No such question having been raised before final judgment in

the trial court, but every ingredient of the crime having been
established in the evidence, there was no error committed upon which
to base a reversal of conviction.

"In transit" simply means "on the way or passage" while

passing from me place to another in the course of transportation.

When the record discloses that the crime as alleged in the

complaint was not committed in the province wherein the trial was had,
and the accused was not arrested in that province and defendant had
not fled therefrom, the Court of First Instance of that province has no
jurisdiction to impose sentence.

In a prosecution under Act No. 55, regulating the

transportation of animals on vessels, as amended by Act No. 275,
the information need not allege that the court was sitting at a port
where the animals were disembarked.
e.

The place where the action is to be instituted is subject to existing

laws "such as offenses which fall under the exclusive jurisdiction
of the Sandiganbayan which may be instituted and tried only in
the Sandiganbayan which is located at Quezon City.

f.

In the earlier case of People v. Mercado, involving theft of large

catties, it was held that where the accused stole the carabaos in
Gapan, Nueva Ecija, and took them to Pampanga, where he was
found, the crime is triable only in Nueva Ecija and not in
Pampanga.

In such cases, if the court has reasonable ground to believe that

the crime has been committed, the accused should be remanded to the
court of proper jurisdiction for trial

A criminal case should be instituted and tried in the municipality

or province where the offense was committed or any of its essential
ingredients took place.
This is a fundamental principle, the purpose being not to compel
the defendant to move to, and appear in a different court from that of
the province where the crime was committed, as it would cause him
great inconvenience in looking for his witnesses and other evidence in
another place."
Power to Change Venue
Where the convenience of the accused is opposed by that of the
prosecution, it is but logical that the court should have the power to
decide where the balance of convenience or inconvenience lies, and to
determine the most suitable place of the trial according to the
exigencies of truth and impartial justice.
Under the 1987 Constitution, the Supreme Court may order a
change of venue or place or trial to avoid a miscarriage of justice.
"A petition for change of venue of the preliminary investigation
should however, be addressed to the Secretary of Justice who has
control and supervision over the conduct of a preliminary investigation
which is a function of the Executive Department and not the Judiciary."

In offenses committed on a railroad train, in an aircraft, or in any

other public or private vehicle while in the course of its trip in the
court of any municipality or territory where such train, aircraft or
other vehicle passed during such trip, including the place of
departure and arrival.
Where defendant was charged with attacking a postal
clerk in a moving train within the limits of Manila, it was claimed
that the Court of First Instance of Manila was without jurisdiction,
but as defendant offered no proof against such jurisdiction, the
lower court was justified in taking jurisdiction.

Jurisdiction or venue is determined by the allegations in the

information which are controlling.

Purpose of Rule
a.

To amend the information so as to change the crime charged

from homicide to the more serious offense of murder after the petitioner
had pleaded not guilty to the former is indubitably proscribed by the
first paragraph of the above-quoted provision.

But can the

paragraph?

it was committed.

The unlawful taking of a movable thing consummates in

the crime of theft.
The act of carrying away the thing stolen is not an
indispensable requisite of theft.
g.

Where the offense charged was fully committed in the City of

Manila where the automobile was allegedly stolen from its parking
place in Port Area the fact that said automobile was later found in
Rizal City is not an essential ingredient of the crime but a mere
circumstance which could add nothing to the nature of the offense
or to its consummation.
Hence, this circumstance cannot be made determinative
of the jurisdiction of the trial court over the criminal action.
It was, however, held in a case that where the
asportations of cigarettes commenced when they were taken out
of dark Airbase and continued when the goods pushed through
Valenzuela, Bulacan until they were seized in Quezon City, the
Courts in any of these places had jurisdiction over the offense.

PLACES WHERE ACTION MAY BE INSTITUTED GENERAL RULE

Transitory and Continuing Offenses

In criminal proceedings, improper venue is lack of jurisdiction.

Venue in criminal cases is an essential element of jurisdiction.
Unlike in a civil case where venue may be waived, this could not
be done in a criminal case because it is an element of jurisdiction.
In criminal proceedings, the rule is that one can not be held to
answer for any crime committed by him except in the jurisdiction where

a.

In all criminal prosecutions the action shall be instituted and tried

in the Court of the Municipality or territory wherein the crime was
committed or where any one of the essential ingredient of the
offense took place.

If all the acts material to the crime and requisite of the

consumption thereof occurred in one municipality or territory, the court
therein has the sole jurisdiction to try the case.

Thus, subject to existing laws, the commission of an

offense is, triable only in the courts of the place where the offense

There are certain crimes in which some acts material and

essential to the crimes and requisite to their consummation occur in one

municipality or territory and some in another, in which event, the court

of either has jurisdiction to try the cases, it being understood that the
court taking cognizance of the case excludes the other.
These are the so-called transitory or continuing crimes.
In transitory or continuing offenses, some acts material and
essential to the crime occur in one province and some in another, in
which case, the rule is settled that the court of either province where
any of the essential ingredients of the crime took place has jurisdiction
to try the case.
Offenses are continuing or transitory upon the theory that there
is a new commission, continuance or repetition of the offense wherever
the defendant maybe found.
Such offenses may be tried by the Court of any jurisdiction in
which the defendant may be found.
In such a case, the complaint should alleged that the offense
was committed within the jurisdiction of the court and not at the place
where it was originally committed.
The theory is that a person may be indicted in any jurisdiction
where the offense was in part committed, it being understood that the
first court taking cognizance of the case excludes the others.
In this jurisdiction, where the strict common law rules touching
the finding of indictments have no controlling influence, offenses
committed partly in one province and partly in another, that is to say,
where some acts material and essential to the crime and requisite to its
consummation occur in one province and some in another, are triable in
either province, and the appropriate courts in each province have
concurrent jurisdiction of such offenses, distinguished, as to estafa,
accounts collected in one place and to be paid over to principal in
Manila; estafa committed by insurance agent, premiums collected in
Iloilo but payable in Manila; estafa committed aboard a ship in Philippine
Waters.
The theory upon which a person accused of a transitory or
continuing offense may be tried in any jurisdiction within which he is
found is based upon the ground that there is a new commission of the
same offense in the jurisdiction where he is found.
In such a case, the complaint should allege that the offense was
committed within the jurisdiction of the court and not at the place where
it was originally committed.

The rule is that crimes "committed partly in one province and

partly in another, that is to say, where some acts material and essential
to the crime, and requisites to its consummation, occur in one province
and some in another, are triable in either province.

TRANSITORY AND CONTINUING OFFENSES DISTINGUISHED

A transitory offense is one where any of the essential ingredients took place, such as estafa, malversation and abduction, while a
continuing offense is one which is consummated in one place, yet by
reason of the nature of the offense, the violation of the law is deemed
continuing.
Example of this, are where the deprivation of liberty is
persistent and continuing from one place to another or libel where the
libelous matter is published or circulated from one place to another.

In People v. Zapata and Bondoc, it was held that adultery is not

a continuing offense.
"The notion or concept of a continuous crime has its origin in
the juridical fiction favorable to the law transgressors and in many a
case, against the interest of society."
For it to exist, there should be plurality of acts performed
separately during a period of time; unity of penal provision infringed
upon or violation; and unity of criminal intent or purpose, which means
that two or more violations of the same penal provision are united in
one and the same intent leading to the perpetration of the same
criminal purpose or aim.

IN BIGAMY, PLACE WHERE FIRST MARRIAGE WAS CELEBRATED IS IMMATERIAL

Bigamy being defined by Article 349 as the contracting "of a
second or subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding," it is self-evident that the place where the first marriage was
celebrated is immaterial to the criminal act, intent and responsibility of
the accused.
What is essential is that the first marriage be not legally
terminated, actually or by legal presumption, when the subsequent
wedlock takes place; and it is upon the celebration of that subsequent
marriage that bigamy is committed, not before.
The continued existence of the first marriage is without definite

(I)f the undertaking is to deliver a determinate thing, the

payment shall be made wherever the thing might be at the moment the
obligation was constituted.

Under said contract, C collected certain moneys for his

principal in Cebu and failed to account for same to his principal in
Manila.

The receipt by the two private respondents at Caloocan City of

the tires and gas supplies from Malolos, Bulacan, signifies but the
consummation of the contract between the parties.

HELD: The court of Manila had jurisdiction over the

offense of estafa committed, as the contract of employment was
made in Manila.

It was the result of an obligation previously contracted at

Malolos, Bulacan.

An agent who is entrusted with collecting payments on policies for

an insurance company and who collects such a payment in Iloilo
and appropriates the same to his own use there though by his
contract, the premium collected were payable at the office of the
company in Manila, may be tried for estafa in the Court of First In stance of Iloilo or of Manila.

Since the second marriage of the accused occurred in Davao

outside the territorial jurisdiction of the respondent court, and in all
criminal prosecutions, the actions must be instituted and tried in the
municipality or province where the offense or any of its essential
ingredients was committed, the Court of First Instance for the province
of Iloilo is devoid of jurisdiction to take cognizance of the crime charged.

a.

A bicycle was purchased by the owner of a tobacco factory in the

municipality ofObando, in the province ofBulacan, to be used by
defendant, an employee, on condition that it was to be returned to
the owner of the factory at the termination of his employment, in
the municipality of Malabon, province of Rizal.
Defendant sold the bicycle to a third person who lived in
the municipality of Obando.

In other words, a person charged with a transitory crime may be

validly tried in any municipality or province where the offense was in
part committed.

Defendant having failed to comply with his obligation to

the owner of the bicycle in Malabon, the crime charged against
him was committed in that municipality, and the justice of the
peace in Malabon had jurisdiction to hear and determine the case.
b.

The general principles governing jurisdiction in cases of estafa

punishable under Article 315, paragraph 2(d) of the Revised Penal Code
have been defined in People v. Yabut, to wit:
"Estafa by postdating or issuing a bad check under Art. 315, par. 2(d) of
the Revised Penal Code may be a transitory or continuing offense.
Its basic elements of deceit and damage, may inde pendently arise in
separate places.
In the event of such occurrence, the institution of the criminal action in either
place is legally allowed. Section 14(a), Rule 110 of the Revised Rules of Court provides:
'In all criminal prosecutions, the action shall be instituted and tried in the court of the
municipality or province wherein the offense was committed or any one of the
essential ingredients thereof took place.
The theory is that a person indicted with a transitory offense may be validly
tried in any jurisdiction where the offense was in part committed.
However, if all the acts material and essential to the crime and requisite of
its consummation occurred in one municipality or province, such has the sole
jurisdiction to try the case."

The Place of Delivery of Check

To hold with the trial court that the celebration of the first
marriage was an essential ingredient of the bigamy is to assume that
when the petitioner married his first wife, he did so with intent already
to marry his second consort; and there is nothing on record to warrant
such assumption.

This is so because persons charged with a transitory offense

may be tried in any jurisdiction where the offense was in part committed
to the exclusion of the other.

In transitory or continuing offenses in which some acts material

and essential to the crime and requisite to its consummation occur in
one province and some in another, the Court of either province has
jurisdiction to try the case, it being understood that the first court taking
cognizance of the case will exclude the others.
However, if all the acts material and essential to the crime and
requisite of its consummation occurred in one municipality or territory,
the court of that municipality or territory has the sole jurisdiction to try
the case.

d.

Estafa is a continuing or transitory offense which may be

prosecuted at the place where any of the essential elements of
the crime took place.
One of the essential elements of estafa is damage or
prejudice to the offended party.

Where, the place of business of the offended party, is in Malolos,

Bulacan, from where the tire and gas purchases were made by the two
private respondents, payment thereof should be considered effected in
Malolos, Bulacan."

C, entered into a contract at Manila, by virtue of which he was

obligated to render accounts to his principal in Manila.

Estafa by Issuing a Bouncing Check

In adultery, the last unity does not exist because the culprits
perpetrate the crime in every sexual intercourse and they need not do
another or other adulterous act to consummate it.

Venue in Estafa
The term "continuing" must, however, be understood in the
sense similar to that of "transitory" and is only intended as a factor in
determining the proper venue or jurisdiction for that matter of the
criminal action pursuant to Section 15, Rule 110.

c.

This means that to make the offense triable in more than one
province, the acts perpetrated in any one of them must be impelled by
the same criminal purpose or aim.

locus.
(Defendant, as an enlisted seaman in the Bureau of Navigation,
accused of desertion in violation of Sec. 9 of Act No. 1980.)

Where the respondent has its principal place of business

and office in Manila, the failure of petitioner (accused) to remit the
insurance premiums she collected caused damage and prejudice
to private respondent in Manila, the Regional Trial Court of Manila
has jurisdiction.

ESSENTIAL REQUISITES OF CONTINUOUS CRIME; ADULTERY

The place where the bills were written, signed, or dated does
not necessarily fix or determine the place where they were executed.
What is of decisive importance is the delivery thereof the
consummation as an obligation.
An undelivered bill or note is inoperative.
Until delivery, the contract is revocable. And the issuance as
well as the delivery of the check must be to a person who takes it as a
holder, which means "(t)he payee or indorsee of a bill or note, who is in
possession of it, or the bearer thereof."
Delivery of the check signifies transfer of possession, whether
actual or constructive from one person to another with intent to transfer
title thereto.
The venue of the offense lies at the place where the check was
executed and delivered to the payee.
Where it was in Malolos, Bulacan where the checks were uttered
and delivered to complainant at which place, her business and
residence were also located, the criminal prosecution of estafa may be
lodged therein.
The giving of the checks by the two private respondents in
Caloocan City to a messenger and part time employee cannot be
treated as valid delivery of the checks, because a mere "messenger" or
"part-time employee" is not an agent of complainant.
The Place Where Obligation Was Constituted
The place where the obligation was constituted is also a valid
basis for criminal jurisdiction to attach in a prosecution for estafa.

Since the instant case, it was in Malolos, Bulacan, where the

checks were uttered and delivered to complainant at which place, her
business and residence were also located, the criminal prosecution of
estafa may be lodged therein.
In a case, two checks were issued and signed by the accused in
connection with the beer purchases made by him on various occasion at
Guiguinto, Bulacan and which checks he handed and delivered to the
sales supervisor of SMC, Mr. Ruben Cornelio, who holds office in that
municipality.
The two checks were deposited by SMC at the BPI, San
Fernando, Pampanga, where it maintained its accounts after receiving
these checks from its Guiguinto Sales Office which bank later on made
the corresponding deductions from the account of SMC in the amounts
covered by the dishonored checks upon receiving information that the
checks so issued by the accused had been dishonored by the drawee
bank at Santa Maria, Bulacan.
A case of estafa and violation of B.P. Big. 22 was filed against
the accused in Pampanga, the accused contested the jurisdiction of the
court.
The Supreme Court held:
"As regards the Estafa case: While the subject check was issued in Guiguinto,
Bulacan, it was not completely drawn thereat, but in San Fernando, Pampanga, where
it was uttered and delivered.
Although the check was received by the SMC Supervisor at Guiguinto,
Bulacan, that was not the delivery in contemplation of law to the payee, SMC.
Said supervisor was not the person who could take the check as a holder,
that is, as a payee or indorsee thereof, with the intent to transfer title thereto.
The issuance as well as the delivery of the check must be to a person who
takes it as a holder, which means the payee or indorsee of the bill or note, who is in
possession of it, or the bearer thereof.
The element of deceit, therefore, took place in San Fernando, Pampanga,
where the check was legally issued and delivered so that jurisdiction could properly be
laid upon the court in that locality."

As Regards the Bouncing Check

The offense also appears to be continuing.
True, the offense is committed by the very fact of its
performance and the Bouncing Checks Law penalizes not only the fact
of dishonor of a check but also the act of making or drawing and
issuance of a bouncing check.
The case, therefore, could have been filed also in Bulacan.
The determinative factor (in determining venue) is the place of
the issuance of the check.
But it is also true that knowledge on the part of the maker or
drawer of the check of the insufficiency of his funds which is an
essential ingredient of the offense is by itself a continu ing eventuality,
whether the accused be within one territory or another.
Hence, jurisdiction to take cognizance of the offense also lies in
the ETC of Pampanga.
KNOWLEDGE BY DRAWER OF INSUFFICIENCY AND DISHONOR AS
ESSENTIAL ELEMENTS FOR VIOLATION OF B.P. BIG. 22
The gravamen of the offense is knowingly issuing a worthless
check.

Thus, a fundamental element is knowledge on the part of the

drawer of the insufficiency of funds or credit with the drawee bank for
the payment of such check in full upon presentment.
Another essential element is subsequent dishonor of the check
by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason had not the drawer, without any
valid reason, ordered the bank to stop payment.
Violation of B.P. Big. 22 is a transitory offense. Knowledge on the
part of the maker or drawer of the check of the insufficiency of his funds
is by itself a continuing eventuality, whether the accused be within one
territory or another.
Consequently, venue or jurisdiction lies either in Malabon where
the checks were delivered or in Kalookan where they were dishonored.
The court, however, clarified that knowledge by the maker or
drawer of the fact that he has no sufficient funds to cover the check or
of having sufficient funds is simultaneous to the issuance of the
instrument.
Where there is no evidence to show that at the time of issue,
accused was in Manila, there would be no basis in upholding jurisdiction
of the Manila Trial Court over the offense for violation of B.P. Big. 22.
THE CRIME OF ESTAFA AND VIOLATION OF B.P. BIG. 22 HAVE TO
BE TREATED AS SEPARATE OFFENSES HAVING DIFFERENT
ELEMENTS
The mere fact that the court has jurisdiction over an estafa case
does not necessarily mean it has jurisdiction over the bouncing checks
case or violation of B.P. Big. 22 involving the same check.
The crime of estafa and violation of B.P. Big. 22 have to be
treated as separate offenses having different elements and, necessarily
for a court to acquire jurisdiction each of the essential ingredients of
each crime has to be satisfied.
In the crime of estafa, deceit and damage are essential
elements of the offense and have to be established with satisfactory
proof to warrant conviction.
For violation of the Bouncing Checks Law, on the other hand, the
elements of deceit and damage are neither essential nor required.
Rather, the elements ofB.P. Big. 22 are:
(a)

the making, drawing and issuance of any check to apply to

account or for value;

(b)

the maker, drawer or issuer knows at the time of issuance

that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its
presentment; and

(c)

the check is subsequently dishonored by the drawee bank

for insufficiency of funds or credit or would have been
dishonored for the same reason had not the drawer, without
valid reason, ordered the bank to stop payment.

all the subject checks were deposited for collection in Makati.

Verily, no proof has been offered that the checks were issued,
delivered, dishonored or knowledge of insufficiency of funds occurred in
Manila, which are esssential elements necessary for the Manila Court to
acquire jurisdiction over the offense for violation of B.P. Big. 22.
Abduction

The crime of estafa and the violation of B.P. Big. 22 have to be

treated as separate offenses and therefore the essential ingredients of
each offense have to be established.

Hence, it may be tried in the court of municipality or province

wherein the offense was committed or anywhere one of the essential
ingredients thereof took place.

The various charges for violation of B.P. Big. 22, however, are on
a different plain.
There is no scintilla of evidence to show that jurisdiction over
the violation ofB.P. Big. 22 had been acquired.
On the contrary, all that the evidence shows is that complainant
is a resident of Makati; that petitioner is a resident of Caloocan City; that
the principal place of business of the alleged partnership is located in
Malabon; that the drawee bank is likewise located in Malabon and that

The gist of the offense charged is not the making of the affidavit
in Manila, but the intention to give false evidence in Iloilo, by means of
such affidavit.

jurisdictions a particular act of disorder belongs.

Much will depend upon the attending circumstances of the
particular case, but all must concede that a felonious homicide is a
subject for local jurisdiction; and if the authorities are proceeding with
the case in the regular way the consul has no right to interfere with it.
The offense of failing to provide suitable means for securing
animals while transporting them on a ship from a foreign port to a port
in the Philippine Islands, is within the jurisdiction of the courts of the
Philippines when the forbidden conditions existed during the time the
ship was within territorial waters, regardless of the fact that the same
conditions existed when the ship sailed from the for eign port and while
it was on the high seas.

Libel
The girl being taken with her consent from Manila to Pasig, Rizal
Province, both the judges of the Court of First Instance of Manila and of
Rizal have jurisdiction and are competent to take cognizance of the
crime of abduction.
It is true that the abduction was commenced in Manila, but it
may well be said that it was consummated in Pasig.

The rules on venue on libel in Article 360 of the Revised Penal

Code as amended by R.A. No. 1289 and RJL No. 4363 may be stated
thus:
a.

Whether the offended party is a public official or a private person,

the criminal action may be filed in the Regional Trial Court of the
province or city where the libelous article is printed and first
published.

b.

If the offended party is a private individual, the criminal action

may also be filed in the Regional Trial Court of the province where
he actually resided at the time of the commission of the offense.

c.

If the offended party is a public officer whose office is in Manila at

the time of the commission of the offense, the action may be filed
in the Regional Trial Court of Manila.

Kidnapping
Where an information charges the offense of kidnapping for
ransom with murder, the victim was kidnapped within Lucena City and
at that very moment, the intention becomes evident that the accused
wanted to detain him for ransom, the Court thereat has jurisdiction to
try the case of murder filed against the accused, although the killing
was committed outside the city limits.
Where persons are kidnapped and detained in Bulacan, then
taken to Nueva Ecija, defendants may be tried and punished in Bulacan,
where the crime was commenced and consummated, though continued
elsewhere.

d.

Kidnapping with serious illegal detention is a continuing crime

where the deprivation of liberty is persistent and continuing from one
place to another.

For the guidance, of both the bench and the bar, the Court finds
it appropriate to reiterate its earlier pronouncement in the case of
Agbayani, to wit:

Estafa by Railroad Conductor

In order to obviate controversies as to the venue of the criminal action

for written defamation, the complaint or information should contain
allegations as to whether, at the time the offense was committed, the
offended party was a public officer or a private individual and where he
was actually residing at that time.

Where a railroad conductor collects one peso and twenty-two

centavos from a passenger and issues a false ticket for a shorter jour ney for which the charge is eighteen centavos, the estafa is committed
where his account was rendered and the stub of the false ticket was
turned in.
Under Article 29 of the General Compilation of Laws upon
Criminal Procedure, jurisdiction is vested in the court, where accused
made use of the document (stub of the ticket) alleged to be false.
The fact that the Court of First Instance of Manila took juris diction of the estafa because the place of its commission was not clearly
shown, is not an obstacle to the court declaring itself without jurisdiction
as soon as the lack of jurisdiction appeared.

Falsification of Private Document

The crime of falsification of a private document is consummated
at the time and place where the document is falsified, whether the
document is or is not thereafter put to the improper or illegal use for
which it was intended.
Crime Within City Limits

Thus, where the records clearly indicate that business dealings

were conducted in a restaurant in Manila where sums of money were
given to petitioner, the lower court acquired jurisdiction over the estafa
case.

It is immaterial where the affidavit was subscribed and sworn,

so long as it appears from the information that defendant, by means of
such affidavit, swore to and knowingly submitted false evidence,
material to a point at issue in a judicial proceeding pending in the Court
of First Instance of Iloilo province.

Abduction is a persistent and continuing offense.

Jurisdiction over criminal cases cannot be conferred by consent.

Hence, it is incorrect for respondent People to conclude that
inasmuch as the Regional Trial Court of Manila acquired jurisdiction over
the estafa case then it also acquired jurisdiction over the violations
ofB.P. Big. 22.

upon which the charge of perjury rested was subscribed and sworn to
before a notary in the city, and sustained a demurrer, dismissing the
case on ground of lack of jurisdiction.

In a case, defendant was fould guilty of homicide. Counsel for defense

contended that the Court of First Instance of Manila, in which the case was heard, had
no jurisdiction as the offense was committed outside the city limits.
Held: As the crime was committed within two and a half miles of the city
limits, the court had the necessary jurisdiction.

The Court of First Instance of Manila has jurisdiction over a crime of

robbery committed upon a steamboat in the Bay of Manila at a point
two and a half miles beyond the city limits.
Perjury
The lower court oflloilo found that the crime charged (perjury) in
the information was completed in Manila, inasmuch as the affidavit

If the offended party is a public officer holding office out side of

Manila, the action may be filed in the Court of First Instance of the
province or city where he held office at the time of the com mission of the offense.

Whenever possible, the place where the written defamation was printed and
first published should likewise be alleged.
That allegation would be a sine qua non if the circumstance as to where the
libel was printed and first published is used as the basis of the venue of the action.

CRIMES ON BOARD
TERRITORIAL LIMITS

FOREIGN

MERCHANT

SHIPS

WITHIN

There are two fundamental rules in International Law regarding

jurisdiction to punish crimes committed abroad foreign merchant
vessels:
The French rule, according to which such crimes should not be
prosecuted in the court of the country within which they are committed,
unless their commission affects the peace and security of the territory;
and
The English rule, based on the territorial principle, followed by
the United States, according to which such crimes are in general triable
in the courts of the country within whose territory they are committed.
Of these two rules, the last one obtains in this jurisdiction, as
the Philippines was then a territory of the United States.
In certain cases, the comity of nations is observed.
Whether the courts of the Philippines have jurisdiction over a
crime (such as smoking of opium within our territorial limits) com mitted
aboard foreign merchant vessels anchored in jurisdictional waters the
court stated in certain cases, the comity of nations is observed, as in
Mali u. Keeper of the Common Jail, wherein it was said that disorders
which disturb only the peace of the ship or those on board are to be
dealt with exclusively by the sovereignty of the home of the ship, but
those which disturb the public may be suppressed and the offenders
punished by proper authorities of the local jurisdiction.
It may not be easy at all times to discover to which of the two

Although the mere possession of a thing of prohibited use in

these islands, aboard a foreign vessel in transit, in any of their ports,
does not, as a general rule, constitute, a crime triable by the courts of
this country, on account of such vessel being considered as an extension of its own nationality, the same rule does not apply when the
article, the use of which is prohibited within the Philippine Islands, is
landed from the vessel upon Philippine soil.
In the present case, a can of opium was landed, thus
constituting an open violation of the laws of the land, with respect to
which, as it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in the said place
itself has competent jurisdiction, in the absence of an agreement under
an international treaty.
When the exact place where the crime was committed is
unknown and the strong presumption arises at the trial that it was
committed on board a ship navigating within the waters included in the
territory of this Archipelago, the court competent to try such a crime is
that of the district and province at one of whose ports the ship or vessel
arrives.
CRIMES COMMITTED OUTSIDE OF THE PHILIPPINES PUNISHABLE
UNDER ARTICLE 2 OF THE REVISED PENAL CODE
ART. 2. Application of its provisions. Except as provided in the treaties and
laws of preferential application, the provisions of this Code shall be enforced not only
within the Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
a. Should commit an offense while on a Philippine ship or airship;
b. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the Philippine
Islands;
c.
Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding number;
d. While being public officers or employees, should commit an offense in the
exercise of their functions; or
e. Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of this Code.

While under Sec. 15(d) "other crimes committed outside of the

Philippines but punishable therein under article 2 of the Revised Penal
Code shall be cognizable by the proper court in which the charge is first
filed."
Where the crime is committed by a public officer in relation to
his office and is classified as Grade 27 and higher, jurisdiction is with the
Sandiganbayan.
WHEN PROCEEDINGS ARE CONDUCTED WITHIN THE PREMISES
OF THE PENAL INSTITUTION
A sister of detention prisoner Mario, accused in a criminal case
for robbery with homicide requested the transfer of the case from the
Regional Trial Court at Calamba, Laguna to the original court, the
Regional Trial Court of Quezon City. Mario is a life termer and had been
ordered committed to the National Bureau of Prisons in Muntinlupa.
Pursuant to Administrative Circular No. 2, dated December 2,
1976, and Administrative Circular No. 6, dated December 5, 1977, he
cannot be brought out of the penitentiary for appearance or attendance
in other criminal cases in any court without authority from the Supreme
Court.
Said circulars also provide that judges in Metro Manila who shall
require the appearance or attendance of such prisoners as witness or as
accused before their respective courts shall conduct such proceedings

within the premises of the penal institution.

The Court resolved to grant Ms. Llanto's request but the trial of
the case shall be conducted within the premises of the National
Penitentiary.

In this respect, the law makes no distinction between cases that

are public in nature and those that can only be prosecuted at the
instance of the offended party.

The controlling consideration is the public character of a

document and the violation of the public faith and the destruction of
truth therein solemnly proclaimed.

The Right to Notice of Offended Party

The offender does not, in any way, have civil liability to a third
person.

SEC. 16.
Intervention of the Offended Party in Criminal Action
Intervention of Offended Party
Explaining the scope of the Rule and the meaning of offended
party, the Court stated that under Section 5, Rule 110 of the Rules, all
criminal actions covered by a complaint or information shall be
prosecuted under the direct supervision and control of the public pros ecutor.
Thus, even if the felonies or delictual acts of the accused result
in damage or injury to another, the civil action for the recovery of civil
liability based on the said criminal acts is impliedly instituted and the
offended party has not waived the civil action, reserved the right to
institute it separately or instituted the civil action prior to the criminal
action, the prosecution of the action inclusive of the civil action remains
under the control and supervision of the public prosecutor.
The prosecution of offenses is a public function.
Under Section 16, Rule 110 of the Rules of Criminal Procedure,
the offended party may intervene in the criminal action personally or by
counsel, who will act as private prosecutor for the protection of his
interests and in the interest of the speedy and inexpensive
administration of justice.
A separate action for the purpose would only prove to be costly,
burdensome and time-consuming for both parties and further delay the
final disposition of the case.
The multiplicity of suits must be avoided.
With the implied institution of the civil action in the criminal
action, the two actions are merged into one composite proceeding, with
the criminal action predominating the civil.
The prime purpose of the criminal action is to punish the
offender in order to deter him and others from committing the same or
similar offense, to isolate him from society, reform and rehabilitate him
or, in general, to maintain social order.
On the other hand, the sole purpose of the civil action is for the
resolution, reparation or indemnification of the private offended party
ror the damage or injury he sustained by reason of the delictual or
felonious act of the accused.
Under Article 104 of the Revised Penal Code, the following are
the civil liabilities of the accused:
ART. 104. What is included in civil liability. The civil liability established in
Articles 100, 101, 102 and 103 of this Code includes:
1.
2.
3.

Restitution;
Reparation of the damage caused;
Indemnification for consequential damages.

When the offended party, through counsel, has asserted his

right to intervene in the proceedings, it is error to consider his
appearance merely as a matter of tolerance.
From Sections 5 and 16 of Rule 110, it can clearly be inferred
that while criminal actions as a rule are prosecuted under the direction
and control of the fiscal, however, an offended party may intervene in
the proceeding, personally or by attorney, especially in cases of
offenses which cannot be prosecuted except at the instance of the
offended party.
The only exception to this rule is when the offended party
waives his right to civil action or expressly reserves his right to institute
it, in which case, he loses his right to intervene upon the theory that he
is deemed to have lost his interest in its prosecution.
And, in any event, whenever an offended party intervenes in the
prosecution of a criminal action, his intervention must always be subject
to the direction and control of the prosecuting official.
Even in cases which do not involve any civil liability, an offended
party may appear not only as a matter of tolerance on the part of the
court.

In either case, the law gives the offended party the right to
intervene, personally or by counsel, and he is deprived of such right
only when he waives the civil action or reserves his right to institute
one.
Where the private prosecution has asserted its right to
intervene in the proceedings, it is error to consider the appearance of
counsel merely as a matter of tolerance.
The offended party is entitled to be notified and heard on
motions filed in the criminal proceedings especially when there is a
conflict in the positions between the public prosecutor and of the
offended party.
Offended Parties in Illegal Practice of Medicine
In an information for illegal practice of medicine a private
prosecutor was allowed to intervene.
All the witnesses who testified before the fiscal are offended
parties it appearing that the offense alleged in the information belongs
to the class of harmful ones.
If there are offended parties, petitioner's contention that no
damages are to be recovered in the criminal action must be untenable.
The public function of prosecuting offenses can be performed
not exclusively by fiscals or other public officers, but by private
attorneys in cases where they are allowed to intervene as private
prosecutors.
After all, in the performance of their professional duties, lawyers
are officers of the court and assume public and official responsibilities.
OFFENDED PARTIES FOR VIOLATION OF ANTI-GRAFT LAW AND
FALSIFICATION OF PUBLIC DOCUMENTS

WHEN MAY THE OFFENDED PARTY LOSE HIS RIGHT TO INTERVENE

IN THE PROSECUTION OF THE CASE
An offended party loses right to intervene in the prosecution of a criminal
case, when he has waived the civil action or expressly reserved his right to institute
the civil action arising from the offense.
The reason of the law in not permitting the offended party to inter vene in the
prosecution of the offense if he has waived or reserved his right to institute the civil
action is that by such action his interest in the criminal case has disappeared.
Its prosecution becomes the sole function of the public prosecutor.
Reservation of right of civil damages; offended party losses right to
intervene. Where the offended party in a criminal case has expressly reserved his
right to present an independent civil action for damages arising from the offense
charged, he loses his right to intervene in the prosecution of the criminal case.
Filing of Separate Civil Action
Undoubtedly, an offended party loses his right to intervene in the
prosecution of a criminal case, not only when he has waived his right to institute, but
also when he has actually instituted the civil action arising from the offense.
For by either of such actions his interest in the criminal case has
disappeared.

The Right to File Motion for Revival

It was earlier held in a case for illegal possession of firearms and violation of
the Dangerous Drugs Law that: "It is axiomatic that the prosecution of a criminal case
is the responsibility of the government prosecutor and must always be under his
control.
This is true even if a private prosecutor is allowed to assist him and actually
handles the examination of the witnesses and the introduction of other evidence.
The witnesses, even if they are the complaining witnesses, cannot act for the
prosecutor in the handling of the case.

The offended party may be the State or any of its

instrumentalities, including local governments or government-owned or
controlled corporations which, under substantive laws, are entitled to
restitution of their properties or funds, reparation, or indemnification.

Although they may ask for the filing of the case, they have no per sonality to
move for its dismissal or revival as they are not even par ties thereto nor do they
represent the parties to the action.

For instance, in malversation of public funds or property under

Article 217 of the Revised Penal Code, frauds under Article 213 of the
Revised Penal Code, and violations of the Forestry Code of the
Philippines, P.D. No. 705, as amended, to mention a few, the government is the offended party entitled to the civil liabilities of the accused.

In a criminal prosecution, the plaintiff is represented by the government

prosecutor, or one acting under his authority, and by no one else."

For violations of Section 3(e) of Rep. Act No. 3019, any party,
including the government, may be the offended party if such party
sustains undue injury caused by the delictual acts of the accused.
In such cases, the government is to be represented by the
public prosecutor for the recovery of the civil liability of the accused.
Under Section 16, Rule 110 of the Revised Rules of Criminal
Procedure, the offended party may also be a private individual whose
person, right, house, liberty or property was actually or directly injured
by the same punishable act or omission of the accused, or that
corporate entity which is damaged or injured by the delictual acts
complained of.
Such party must be one who has a legal right; a substantial
interest in the subject matter of the action as will entitle him to recourse
under the substantive law, to recourse if the 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.

Their only function is to testify.

It follows that a motion for revival of the cases filed by prosecution witnesses
(who never even testified) should have been summarily dismissed by the trial judge.
The mere fact that the government prosecutor was furnished a copy of the
motion and he did not interpose any objection was not enough to justify the action of
these witnesses.
The prosecutor should have initiated the motion himself if he thought it
proper.
The presumption that he approved of the motion is not enough, especially
since we are dealing here with the liberty of a person who had a right at least to be
notified of the move to prosecute him again.
serious."

The fact that he was not so informed made the irregularity even more

It was, however, held that the offended party has the right to file a motion for
reconsideration of the order considering the information against petitioner as
withdrawn even without the conformity of the public prosecutor or to file motion for
reconsideration of a decision of the Supreme Court enjoining a criminal prosecution.
Legal Personality of Offended Party
While it is the SolGen that may bring or defend actions on be half of the
Republic of the Philippines or represent the people or the state in criminal proceedings
pending before the Supreme Court or Court of Appeals, the private offended party
retains the right to bring a special civil action for certiorari in his own name in criminal
proceedings before the court of law.

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.

It follows that the offended party has legal personality to file a motion for
reconsideration of an order of dismissal.
The case was distinguished from Caes v. Intermediate Appellate Court, which
is a violation of the dangerous drugs law where there is no immediate and direct
offended party.

In the felony of falsification of public document, the existence of

any prejudice caused to third person or the intent to cause damage, at
the very least, becomes immaterial.

Moreover, if the court, independently of the appeal of the accused, has

jurisdiction, within fifteen days from the date of the judgment, to allow the appeal of
the offended party, it also has jurisdiction to pass upon the motion for reconsideration
filed by the private prosecution in connection with the civil liability of the accused.

RULE 111
PROSECUTION OF CIVIL ACTION
SECTION 1.
Institution of criminal and civil actions
Changes in the Rule at a Glance
a.

The rule changes the 1985 rule as amended in 1988.

Under the 1985 Rule, the action for recovery of civil liability arising
from crime including the civil liability under Articles 32, 33, 34 and 2176
of the Civil Code of the Philippines arising from the same act or omission
are deemed impliedly instituted with the criminal action unless the
offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action.
Under the present rule, only the civil liability arising from the offense
charged is deemed instituted with the criminal unless the offended
party waives the civil action reserves his right to institute it separately,
or institutes the civil action prior to the criminal action.
b.
Under the former rule a waiver of any of three civil actions
extinguishes the others.
The institution of, or the reservation of the right to file, any of said civil
actions separately waives the others.
This is no longer provided for.
The reservation and waiver referred to refers only to the civil action for
the recovery of civil liability arising from the offense charged.
This does not include recovery of civil liability under Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines arising from the same act
or omission which may be prosecuted separately even without a
reservation.
c.
The rulings in Shafer v. Judge, RTC of Olongapo City,
allowing a third-party complaint, and the ruling in Javier v.
Intermediate Appellate Court, as well as Cabaero v. Cantos allowing a
counterclaim are no longer in force.
Under the Revised Rules on Criminal Procedure, these pleadings are no
longer allowed.
Any claim which could have been the subject thereof may be litigated in
a separate civil action.
Thus, a court trying a criminal case cannot award damages in favor of
the accused.
The task of the trial court is limited to determining the guilt of the
accused and if proper, to determine his civil liability.
A criminal case is not the proper proceedings to determine the private
complainant's civil liability.
d.
The rule also incorporated Circular 57-97 on the filing of
actions for violation of Batas Pambansa Big. 22 mandating the
inclusion of the corresponding civil action for which the filing fee shall
be paid based on the amount of the check involved.

In other cases, no filing fees shall be required for actual damages.

distinct civil action.

be imposed upon him.

History of Amendment

b.

What the private offended party should do is to file a separate civil

action.

No other rule in criminal procedure have been as hotly debated upon as

the rule on prosecutions of civil actions. The rule have been amended
four times.

The dual concept of civil liability, ex-delicto and quasi-delicto, has thus
brought about a dual mode of enforcement.

Modes of Enforcement

Dual Concept of Civil Liability

The same act or omission which gives rise to two separate and distinct
sources of civil liability may be prosecuted separately and
independently of each other, subject only to the limitation that the
satisfaction of either bars recovery of the other, on the principle that
plaintiff cannot recover twice for the same act or omission.

Under Article 1157 of the Civil Code of the Philippines, obligations may
arise, inter alia, from acts or omissions punished by law (ex-delicto) and
from quasi-delict.

Otherwise stated, civil liability, although arising from the same act or
omission, may not only be prosecuted either in a criminal or civil action,
but in a criminal and civil action.

Civil obligations arising from the criminal offenses shall be governed by

the penal laws, subject to the provisions of Article 2177, and of the
pertinent provisions of Chapter 2, Preliminary Title, on Human
Relations, and of Title XVIII on Human Relations, regulating damages.4

The procedural enforcement of these distinct civil liabilities, albeit based

on the same act or omission, are likewise separate and distinct, subject
only to the caveat under Article 2177 of the Civil Code that the offended
party cannot recover damages under both types of civil liabilities.

Article 100 of the Revised Penal Code provides that every person
criminally liable shall also be civilly liable (ex-delicto) while Article
2176 of the Civil Code provides that "whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to
pay for the damage done.

c.

a.
Juridical Basis of the Principle of Implied Institu-tion of the
Civil Action with the Criminal Action

Such fault or negligence, if there is no pre-existing contractual relation

between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter."
The Code expressly provides that responsibility for the fault or
negligence for quasi-delict is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code, subject only to
the limitation that the plaintiff cannot recover damages twice for the
same act or omission of the defendant.
Briefly stated, the negligent act causing damages may produce two
kinds of civil liability on the part of the offender, that is, civil liability
arising from the crime under Article 100 of the Revised Penal Code, or
create an action for quasi-delict or culpa extra-contractual under
Articles 1902-1910 of the Civil Code.
The distinct nature of the dual concept of the civil liability was stressed
in Diana v. Batangas Transportation Co., citing the earlier case of
Barredo v. Garcia, in the following words:
"These two cases involve two different remedies.
As the Court aptly said: A quasi-delict or culpa aquiliana is a separate
legal institution under the Civil Code, with a substantivity all its own,
and individuality that is entirely apart and independent from a delict or
crime.

Civil Liability Based on Crime

The civil liability based on a crime, unless reserved, is generally

enforced in the criminal action, and was governed by the Rules on
Criminal Procedure, more particularly Rule 111 on the prosecution of
civil actions, which provides that when a criminal action is instituted the
civil action for recovery of civil liability arising from the offense charged
is impliedly instituted with the criminal action, unless the offended party
expressly waives the civil action or reserves his right to institute it
separately.
Civil liability under Article 2176 was then enforced separately by means
of a civil action and is governed by the Rules on civil actions.
Consequently, when a criminal action is filed, what was deemed
impliedly instituted thereunder was only the civil liability arising from or
based on the crime.
Thus, the accused may be held civilly liable in the criminal action, if he
is found to be criminally liable.

f.

The Independent Civil Actions

In 1949, the (new) Civil Code of the Philippines introduced the so-called
independent civil actions.
These are Articles 32, 33, and 34.
These articles allow the injured party to file a civil action for damages in
the cases mentioned therein which may also constitute criminal
offenses entirely separate and distinct from the criminal action.
Such civil action may proceed independently of the criminal action and
shall require only a preponderance of evidence.
This has raised the question of whether or not a reservation to file a
separate civil action for the cases mentioned therein is necessary for
the exercise of such right.
The Supreme Court flip-flopped from one extreme to the other.
One school of thought is of the considered view that the provisions of
the Civil Code are substantive in nature which may be exercised by the
injured party even without any reservation.

The other school of thought is of the view that the provisions of the new
Civil Code or the exercise of the right granted under the Civil Code is
merely procedural which may be regulated under the Rule-making
power of the Supreme Court.

What is deemed impliedly instituted and governed by the rules on

criminal procedure, unless reserved, was only the civil liability arising
from the crime, while civil liability based on other sources of obligation
such as quasi-delict may be enforced only in a purely civil action.

Such civil liability is a necessary consequence of criminal responsibility,

and is to be declared and enforced in the criminal proceeding except
where the injured party reserves his right to avail himself of it in a

"When a criminal action is instituted the civil action for recovery of civil
liability arising from the offense charged is impliedly instituted with the
criminal action, unless the offended party expressly waives the civil
action or reserves his right to institute it separately. Thus, what was
deemed impliedly instituted unless there is a waiver or reservation is
the civil liability arising from the crime."

This is also the civil liability that is deemed extinguished with the
extinction of the penal even with a pronouncement that the fact from
which the civil action might proceed does not exist."

The other differences pointed out between crimes and culpa aquiliana
are:

The plain inference is that the civil liability based on delict springs out of
and is dependent upon facts which, if true, would constitute a crime.

The Rule was originally governed by Rule 107 of the 1940 Rules of Court
which then provided that:

Thus, the criminal action as well as the civil action for the recovery of
the civil liability arising from a crime may proceed simultaneously and
independently of the other, without any reservation subject only to the
limitation that, the injured party cannot recover twice for the same act
or omission as provided for in Article 2177 of the Civil Code.

In the early stages of criminal procedure, the policy was to strictly

adhere to the distinct and discrete nature of the criminal from purely
civil actions, and the civil liability that is sought to be enforced
thereunder.

3)
That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly covering them,
while the latter, quasi-delicts, include all acts in which any kind of fault
or negligence intervenes.

Original Rule, The 1940 Rules of Court

The obvious reason, as stated in People u. Amistad is that the civil

liability recoverable in the criminal action is one solely dependent upon
conviction, because said liability arises from the offense, since what was
deemed impliedly instituted, unless reserved, was the civil action for
recovery of civil liability arising from the offense charged, and no other.

The same negligent act causing damages may produce civil liability
arising from a crime under Article 100 of the Revised Penal Code, or
create an action for quasi-delict or culpa-contractual under Articles
1902-1910 of the Civil Code."

2)
That consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code by means of indemnification merely
repairs the damage;

e.

A contrary rule is unconstitutional.

d.

1)
That crimes affect public interest, while quasi-delicts are
only of private concern;

The reservation requirement for Other Civil Actions:

If the accused is acquitted, he cannot be held civilly liable in the

criminal action.

A distinction exists between the civil liability arising from a crime and
the responsibility for quasi-delict or culpa extra-contractual.

Early Rulings

While the criminal action may have a dual purpose, namely, the
punishment of the offender and indemnity to the offended party, its
dominant and primordial objective is the punishment of the offender.
The civil action is merely incident and consequent to the conviction of
the accused, which may even be waived or the prosecution thereof
reserved in a separate civil action.
This is because criminal actions are primarily intended to vindicate an
outrage against the sovereignty of the State, and to impose the
corresponding penalty for the vindication of the disturbance to the
social order caused by the offender; the action between the private
person and the accused is intended solely to indemnify the former.
Thus, where the accused is acquitted in the criminal case, the interest of
the State ends, and no civil liability arising from the crime charged could

In view of the provisions of the new Civil Code on the so-called

independent civil actions, the rule was amended in 1964 by adding a
new section, viz.

To simplify the proceedings and avoid conflicting decisions, all civil

actions for the recovery of damages arising from the same act or
omission should only be litigated in one proceeding.
The injured party must have to elect whether he chooses to prosecute
his claim in the criminal action or in a separate civil action either by a
timely reservation or the filing of the civil action prior to the institution
of the criminal action.
The gravity and complexity of the question is best exemplified by the
four amend-ments of the Rule.
The minutes of the proceedings from the Fernan to the Davide, Jr.,
committee disclose the heat of the debate and the numerous sessions
not only of the Committee but also by the Court en bane.
By no means can it be said that the issue had been finally laid to rest.
If the Revised Rule on Criminal Procedure have been delayed, it is
because of Rule 111. It took the court several sessions before the
present rule was reluctantly adopted, which ended with a rule similar to
the 1940 Rules of Court, prior to the four amendments.
g.

The Amendments

1)

First Amendment

SEC. 2. Independent civil action. In the cases provided for in Articles

31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an
independent civil action entirely separate and distinct from the criminal
action, may be brought by the injured party during the pendency of
the criminal case, provided the right is reserved as required in the
preceding section. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance of
evidence.
SEC. 3. Other civil actions arising from offenses. In all cases not
included in the preceding section the following rules shall be observed,
a.
Criminal and civil actions arising from the same offense may
be instituted separately, but after the criminal action has been
commenced the civil action can not be instituted until final judgment
has been rendered in the criminal action;
b.
After a criminal action has been commenced, no civil action
arising from the same offense can be prosecuted, and the same shall be
suspended, in whatever stage it may be found, until final judgment in
the criminal proceeding has been ren-dered;
c.
Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a
declaration in a final judgment that the fact from which the civil might
arise did not exist.
In other cases, the person entitled to the civil action may institute it in
the jurisdiction and in the manner provided by law against the person
who may be liable for restitution of the thing and reparation or
indemnity for the damage suffered.
The Supreme Court, however, declared Section 2 as inoperative. Thus,
in Mendoza v. Arrieta, quoting from Garcia v. Florida, that:
"* * * the same negligent act causing damages may produce a civil
liability arising from crime or create an action for quasi-delict or culpa
extra-contractual.
The former is a violation of the criminal law, while the latter is a
distinct and independent negligence, having always had its own
foundation and individuality.
Some legal writers are of the view that in accord-ance with Article 31,
the civil action based upon quasi-delict may proceed independently of
the criminal proceeding for criminal negligence and regardless of the
result of the latter.
Hence; the proviso in Section 2 of Rule 111 with reference to x x x
Articles 32, 33 and 34 of the Civil Code is contrary to the letter and
spirit of the said articles, for these articles were drafted x x a and are
intended to constitute as exceptions to the general rule stated in what is
now Section 1 of Rule 111.
The prouiso, which is procedural, may also be regarded as an
unauthorized amendment of substantive law, Articles 32,33 and 34 of
the Civil Code, which do not provide for the reservation required in the
proviso. x x x"
In his concurring opinion in the above case, Mr. Justice Antonio Barredo
further observed that inasmuch as Articles 2176 and 2177 of the Civil
Code create a civil liability distinct and different from the civil action
arising from the offense of negligence under the Revised Penal Code, no
reservation, therefore, need be made in the criminal case; that Section
2 of Rule 111 is inoperative, "it being substantive in character and is
not within the power of the Supreme Court to promulgate; and even if it
were not substantive but adjective, it cannot stand because of its
inconsistency with Article 2177, an enactment of the legislature
superseding the Rules of 1940."
2.

Second Amendment

Accordingly, the 1985 Rules on Criminal Procedure did away with the
need for RESERVATION in cases provided for in Articles 32, 33 and 34 of
the Civil Code of the Philippines and instead recognized that "an
independent civil action entirely separate and distinct from the criminal
action, may be brought by the injured party during the pendency of the
criminal case.

Such civil action shall proceed independently of the criminal prosecution

and shall require only a preponderance of evidence."

The Revised Rules on Criminal Procedure is a virtual return to the 1940

Rules of Court (and the 1985 amendment) which deemed as instituted
with the criminal action only the civil liability arising from the offense
charged.

Under the 1985 amendment, what is deemed impliedly instituted with

the criminal action unless there is a reservation or a prior civil action
filed is the civil action for the recovery of the civil liability arising from
the offense charged.

The civil liability is deemed instituted not merely "impliedly"

instituted with the institution of the criminal action.

This is the civil action that may be reserved in the criminal action. The
1985 amendment did not live very long.

The amendment modified the recommendation of the Committee on

the Revision of the Rules of Court to deem as impliedly instituted only
the civil liability of the accused from all sources of obligation arising
from the same act or omission.

3.

are deemed impliedly instituted with the filing of the criminal.

It is also expected to expedite the disposition of these cases.
It may likewise be noted that in Corpus v. Page, the court ruled that
Article 33 did not contemplate reckless imprudence or criminal
legligence cases.
However in Maceda v. Caro, the court observed ;hat Corpus v. Page is
not controlling and held that Article 33 also covers crimes committed
thru criminal negligence.

It should be stressed that the policy laid down by the Rules is to

discourage the separate filing of the civil action.

And, in Eicano v. Hill, the court ruled that the concept of quasi-delict
includes inten-tional acts, i.e., acts or omissions punishable by law.

The Rules even prohibit the reservation of a separate civil action, which
means that one can no longer file a separate civil case after the criminal
complaint is filed in court.

The foregoing concepts would allow more than one civil action to
recover civil liability arising from the same act or ommission.

The only instance when separate proceedings are allowed is when the
civil action is filed ahead of the criminal case.

The only limitation is against double recovery.

Even then, the Rules encourage the consolidation o the civil and
criminal cases.

Third Amendment

In 1988, Rule 111 was amended for the third time.

The purpose of the Committee was to limit the civil liability to be

instituted with the criminal action to that of the accused and not the
employer.

It actually restored the 1964 amendment.

The rule further clarified the civil actions that are deemed impliedly
instituted is not confined to civil actions arising from a crime but also
the civil actions to recover civil liability under Articles 32, 33, 34 and
2176 of the Civil Code arising from the same act or omission of the
accused unless the offended party waives the civil action, reserves his
right to institute it separately, or institutes the civil action prior to the
criminal action.

The court, however, went further by limiting the civil liability that is
deemed instituted with the criminal only to the civil liability arising from
the offense charged.

The reservation applies only to the civil liability arising from the offense
charged.

"The 1988 amendment expands the scope of the civil action which is
deemed impliedly instituted with the criminal action unless waived,
reserved or previously instituted x x x.

The employer may no longer be held civilly liable for quasi delict in the
criminal action as ruled in Maniago (supra) and San Ildefonso lines
(supra) and the pro hac vice decision in Rafael Reyes Trucking
Corporation (supra), and all other similar cases, since quasi-delict is not
deemed instituted with the criminal.

Such a civil action includes not only recovery of indemnity under the
Revised Penal Code and damages under Articles 32, 33, 34 of the Civil
Code of the Philippines, but also damages under Article 2176 of the said
code. x x x"
Objections were raised to the inclusions in this Rule of quasi-delicts
under Article 2176 of the Civil Code of the Philippines.

The civil liability is not extinguished where acquittal is based on

reasonable doubt.
Two Separate Civil Liabilities from Same Act or Omission
An act or omission causing damage to another may give rise to two
separate liabilities on the part of the offender, i.e.,
1)
civil liability ex delito, under Article 100 of the Revised Penal
Code, and

The rule has also done away with third party complaints and
counterclaims in criminal actions.

2)

These claims must have to be ventilated in a separate civil action.

In any event, the offended party was not precluded from filing a civil
action to recover damages arising from quasi-delict before the
institution of the criminal ac-tion, or from reserving his right to file such
a separate civil action, just as he is not precluded from filing a civil
action for damages under Articles 32, 33 and 34 before the institution
of the criminal ac-tion, or from reserving his right to file such a separate
civil action.

Rule 107 contemplates a case where the offended party desires to press
his right to demand indemnity from the accused in the criminal case
which he may assert either in the same criminal case or in a separate
action.

While it was ruled in Abella u. Marave,u that a reservation of the right to

file an independent civil action is not necessary, such a reservation is
necessary under the 1988 amendment.

Thus, civil liability arising from crime and civil liability arising from
Articles 32, 33, 34 and 2176 quasi-delict or contract are entirely
separate and distinct from the criminal action that may be brought by
the injured party and may proceed simultaneously;

If at all, the only civil liability of the employer in the criminal action
would be his subsidiary liability under the Revised Penal Code.

However, in view of Article 2177 of the said code which provides that
the offended party may not recover twice for the same act or omission
of the accused, and in line with the policy of avoiding multiplicity of
suits, these objections were overruled.

It is only in those cases where the offended party has not previously
filed a civil action or has not reserved his right to file a separate civil
action that his action is deemed impliedly instituted with the crimi-nal
action.

This is in effect the present rule.

The Principle of Simultaneous Civil Actions

All decisions to the contrary are no longer controlling. The

independent civil actions under Articles 32, 33, 34 and 2176 are no
longer deemed or impliedly instituted with the criminal action or
considered as waived even if there is no reservation.

Explaining the amendment, Justice Jose Y. Feria, then a member and

later chairman of the Revision of Rules of Court Committee elucidated:

The fourth amendment is similar to the original rule in Rule 107 of the
Rules of Court and the 1985 amendment.

Under this rule, a waiver from failure to reserve does not include a
cause of action not arising from civil liability involved in the criminal
case but from culpa contractual, such as a civil case is based on alleged
culpa contractual incurred by the Philippine Air Lines, Inc. because of
its failure to carry safely the deceased passenger to his place of
destination.

independent civil liabilities, such as those

Such civil actions are not limited to those which arise "from the offense
charged."
In other words, the right of the injured party to sue separately for the
recovery of the civil liability whether arising from crimes (ex delicto or
from quasi delict under Art. 2176 of the Civil Code must be reserved
otherwise they will be deemed instituted with the criminal action).
This includes the right to recover damages against the employer
pursuant to Article 2180 in relation to Article 2176 of the Civil Code.
Elsewise stated, prior reservation is a condition sine qua non before any
of these independent civil actions including the action for quasi-delict
against the employer can be instituted and thereafter have a continuous
determination apart from or simultaneous with the criminal action.

The latter is not in any way involved therein. Plaintiff is concerned with
the civil liability of the latter, regardless of the civil liability of the
accused in the criminal case.
The failure, therefore, on the part of the plaintiff to reserve her right to
institute the civil action in the criminal case cannot in any way be
deemed as a waiver on her part of the right to institute a separate civil
action against the respondent company based on its contractual
liability, or on culpa aquiliana under Articles 1902 to 1910 to of the
Civil Code.
The two actions are separate and distinct and should not be confused
one with the other.
Under Article 31 of the Civil Code: "When the civil action is based on an
obligation not arising from the act or omission com-plained of as a
felony, such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter."

Fourth Amendment
It may further be noted that Article 31 is not among the civil actions that

This multiplicity of suits must be avoided.

Where petitioners' rights may be fully adjudicated in the proceedings
before the trial court, resort to a separate action to recover civil liability
is clearly unwarranted.
In view of this special rule governing actions for violation ofB.P. Big.
22, Article 31 of the Civil Code cited by the trial court will not apply to
the case at bar.
The pendency of the civil action before the court trying the criminal
case bars the filing of another civil action in another court on the ground
of litis pendentia.
Thus, the complaint for recovery of sum of money based on a
contractual debt filed in the Regional Trial Court was dismissed
because of the pendency of a criminal case for violation of B.P. Big. 22
filed by the for the issuance of bouncing checks in payment of the same
obligation which deemed as included the civil action recovery of the
sum of money sought to be recovered in the civil action.

(b)
where the injured party is granted a right to file an
independent and distinct criminal action.

Action Based on Compromise Agreement held as Different from Violation

of B.P. Big. 22

Either of these two possible liabilities may be enforced against the

offender (separately and simultaneously) subject, however, to the
caveat under Article 2177 of the Civil Code that the attended party
cannot recover damages twice for the same act or emission or under
both causes.

An action, however for collection based on violation of a Memorandum

Agreement entered into where parties also agreed to dismiss the
criminal proceedings for violation of B.P. Big. 22 was held as not
violative of the rule against forum shopping because, there is no identity
of parties, rights or causes of action, sand relief sought. The Court
stated:

However, a separate civil action based on subsidiary liability cannot be

instituted during the pendency of the criminal case.
Civil Actions in Cases of Negligence

The criminal case involves the civil liability of the accused, who bear
no relation whatsoever with said entity and are complete strangers to
it.

We have previously observed that a separate civil action for the purpose
of recovering the amount of the dishonored checks would only prove to
be costly, burdensome and time-consuming for both parties and would
further delay the final disposition of the case.

(a)
not arising from an act or emission complained of as a
felony, e.g., culpa contractual or obligations arising from law under
Article 32, of the Civil Code, intentional torts under Articles 32 and 34,
and culpa aquiliana under Article 2176 of the Civil Code; or

In cases of negligence, the offended party has the choice between an

action to enforce civil liability arising from crime under the Revised
Penal Code and an action for quasi-delict under the Civil Code.

The accused are complete strangers to the respondent company.

Without such reservation, the civil action is deemed impliediv instituted
with the criminal action, unless previously waived or instituted.

4.

Instead of instituting two separate cases, one for criminal and another
for civil, only a single suit shall be filed and tried.

HERE, THE TWO CASES INVOLVED ARE THE INSTANT CIVIL CASE FOR
COLLECTION OF SUM OF MONEY WHERE PETITIONER IS THE
DEFENDANT, AND THE B.P. BIG. 22 CASES WHERE PETITIONER IS THE
ACCUSED.
Clearly, there is no identity of parties for in the criminal case, the
plaintiff is the State with Ligon only as a complaining witness. In the
case at bar, Ligon himself is the plaintiff.

The Principle Allowing Separate Civil Actions noT Allowed for Violations
of BP Big. 22

There is also a difference in the causes of action.

The principle does not apply to violations of B.P. Big. 22 which provides
that "The criminal action for violation of Batas Pambanss Big. 22 shall be
deemed to include the corresponding civil action.

In the instant case, the cause of action is petitioner's breach of contract

as embodied in the Memorandum of Agreement, while in the criminal
case, it is the violation of B.P. Big. 22.

No reservation to file such civil action separately shall be allowed."

There is also a difference in reliefs sought because in the civil case,

what is sought is the enforcement of the terms in their Memorandum
of Agreement, while in the criminal case, it is the punishment of the
offense committed against a public law.

The Court explained that this rule was enacted to help declog court
dockets which are filled with B.P. Big. 22 cases as creditors actually
use the courts as collectors.
Because ordinarily no filing fee is charged in criminal cases for actual
damages, the payee uses the intimidating effect of a criminal charge
to collect his credit gratis and some times, upon being paid, the trial
court is not even informed thereof
The inclusion of the civil action in the criminal case is expected to
significantly lower the number of cases filed before the courts for
collection based on dishonored checks.

As we explained in Go v. Dimagiba, civil liability differs from criminal

liability.
What is punished in the latter is not the failure to pay an obligation but
the issuance of checks that subsequently bounced or were dishonored
for insufficiency or lack of funds.
The issuance of worthless checks is prohibited because of its deleterious
effects on public interest and its effects transcend the private interest

of the parties directly involved in the transaction and touches the

interest of the community at large.

Right to Intervene in Estafa Cases

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.

The fact, however, that the Rules do not allow the reservation of civil
actions in B.P. Big. 22 cases canot deprive private complainant of the
right to protect her interests in the criminal action for estafa.

The Court held that Petitioner's counterclaim in the civil case pending
with the Malabon trial court for the return of the amount DPWH paid NIC
is an action to recover civil liability ex delicto.

Nothing in the current or rules on B.P. Big. 22 vests the jurisdiction of

the corresponding civil case exclusively in the Court trying the B.P. Big.
cases.

However, this action to recover civil liability ex delicto is by operation

of law included in the criminal cases filed with the Sandiganbayan.

In the present civil case, no such transcendental public interest exists.

In promulgating the Rules, the Court did not intend to leave the
offended parties without any remedy to protect their interests in
estafa cases.

By mandate of R.A. No. 8249, the counterclaim filed earlier in the

separate civil action with the Malabon trial court "shall be deemed
abandoned."

Article 20 of the New Civil Code provides:

"EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR NEGLIGENTLY
CAUSES DAMAGE TO ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE
SAME.
Regardless, therefore, of whether or not a special law so provides,
indemnification of the offended party may be had on account of the
damage, loss or injury directly suffered as a consequence of the
wrongful act of another.
The indemnity which a person is sentenced to pay forms an integral
part of the penalty imposed by law for the commission of a crime.
Every crime gives rise to a penal or criminal action for the punishment
of the guilty party; and also to civil action for the restitution of the thing,
repair of the damage and indemnification for the losses.

Extent of Damages Awarded in Civil Liability Arising from Crimes

Private complainant's intervention in the prosecution of the estafa and
B.P. Big. 22 is justified not only for the prosecution other interests, but
also for the speedy and inexpensive administration of justice as
mandated by the Constitution despite the necessary inclusion of the
corresponding civil; action in the proceedings for violation of BP 22
pending before the MTC.

Civil liability arising from crime includes, moral damages, exemplary

damages and loss of earning capacity.
Attorney's fees may be awarded but only when a separate civil action to
recover civil liability has been filed or when exemplary damages are
awarded.

The only limitation is that a recovery in one bars the other.

Civil liability is however, improper in illegal possession of firearms

qualified by murder.
The civil liability arising from the death may be claimed either in a
separate action or impliedly instituted with the criminal action for
murder or homicide."
Effect of Failure to Allege Damages in Complaint or Information

Life expectancy is included in award of damages.

On the other hand a separate civil action for failure to comply with the
obligations under the Trust Receipts was allowed although the a criminal
case for violation of the Trust receipts law had already been filed.

The only civil liability that may thus be imposed in a criminal action is
that arising from and consequent to the criminal liability oi the accused
on the principle that every person criminally liable is also civilly liable.

The fact that there is, no claim or allegation of damages in the

complaint of information is of no legal consequence.

THE RIGHT TO FILE A SEPARATE COMPLAINT FOR A SUM OF MONEY IS

GOVERNED BY THE PROVISIONS OF ARTICLE 31 OF THE CIVIL CODE, TO
WIT:
"Article 31. When the civil action is based on an obliga-tion not arising
from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and
regardless of the result of the latter."

damages

caused

and

Complementary thereto, are the subsidiary civil liability of innkeepers,

tavern keepers and proprietor of establishments, employers, teachers,
persons and corporations engaged in any kind of industry, for felonies
committed by their servants, pupils, workmen, apprentices,
employees in the discharge of their duties.
Broader Concept of Civil Liability

Where the complaint against petitioners was based on the failure of

the latter to comply with their obligation as spelled out in the Trust
Receipt executed by them.
This breach of obligation is separate and distinct from any criminal
liability for "misuse and/or misappropriation of goods or proceeds
realized from the sale of goods, documents or instruments released
under trust receipts", punishable under Section 13 of the Trust
Receipts Law (P.D. No. 115) in relation to Article 315(1), (b) of the
Revised Penal Code.

In Banal v. Tadeo, Jr., a case of violation of B.P. Big. 22, (A law making
the issuance of a bouncing check criminal) the lower court rejected the
appearance of a private prosecutor on the ground that B.P. Big. 22 does
not provide for any civil liability or indemnity and, hence it is not a crime
against property but public order.
The Supreme Court, in setting aside the order, gave a broader concept
of the civil liability that may be recovered in a criminal action. The
Supreme Court said:

Being based on an obligation ex contractu and not ex delicto, the civil

action may proceed independently of the criminal proceedings instituted
against petitioners regardless of the result of the latter.

"GENERALLY, THE BASIS OF CIVIL LIABILITY ARISING FROM CRIME IS THE

FUNDAMENTAL POSTULATE OF OUR LAW THAT EVERY MAN CRIMINALLY
LIABLE IS ALSO CIVILLY LIABLE."

The Sandiganbayan Rule: Prohibition against Separate Civil Action

Underlying this legal principle is the traditional theory that when a

person commits a crime, he offends two entities, namely:

Petitioner DPWH the offended party in a criminal case for estafa thru
falsification of public documents and for violation of Section 3(e) and (g)
of R.A. No. 3019 pending in the Sandiganbayan lodged its own
counterclaim to the collection case filed with the Malabon Trial Court,
praying for the return of its payment made to the Navotas Industrial
Corporation (NIC) arising from the dredging contracts subject of the
criminal action.
However, the Court held that petitioner's counterclaim is deemed
abandoned by virtue of Section 4 of P.D. No. 1606, as amended.
The last paragraph of Section 4 of P.D. No. 1606, as amended, provides
that:
Any provision of law or Rules of Court to the contrary notwithstanding,
the criminal action and the corresponding civil action for the recovery of
civil liability shall at all times be si-multaneously 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
neces-sarily carry with it the filing of the civil action, and no right to
reserve the filing of such civil action separately from the crimi-nal action
shall be recognized:
Provided, however. That where the civil action had heretofore been filed

(1)
the society in which he lives in or the political entity called
the State whose law he had violated; and
(2)
the individual member of that society whose person, right,
honor, chastity or property was actu-ally or directly injured or damaged
by the same punishable act or omission, x x x."
Viewing things pragmatically, we can readily see that what gives rise to
the civil liability is really the obligation and the moral duty of everyone
to repair or make whole the damage caused to another by reason of his
own act or omission, done intentionally or negligently, whether or not
the same be punishable by law.
In other words, criminal liability will give rise to civil liability only if the
same felonious act or omission results in damage or injury to another
and is the direct and proximate cause thereof.
Damage or injury to another is evidently the foundation of the civil
action.
Such is not the case in criminal actions for, to be criminally liable, it is
enough that the act or omission complained of is punishable, regardless
of whether or not it also causes material damage to another.

This amounts to a reservation of the civil action in IBAA's favor for the
Court would not have dwelt on a civil liability that it had intended to
extinguish by the same decision."
In the Bernaldes case, plaintiffs spouses Nicasio Bernaldes, Sr. and
Perpetua Besas together with their minor son, Jovito, filed a complaint
for damages against defendant Bohol Land Transportation Co. for the
death of Jovito's brother Nicasio, Jr. and for serious physical injuries
obtained by Jovito when the bus in which they were riding, fell off a
deep precipice.
Defendant bus company moved to dismiss the complaint on the ground
that in the criminal case earlier filed against its bus driver, plaintiffs
intervened through their counsel but did not reserve therein their right
to file a separate action for damages. The Court held that the
dismissal was improper and ruled thus:
"TRUE, APPELLANTS, THROUGH PRIVATE PROSECUTORS, WERE
ALLOWED TO INTERVENE WHETHER PROPERLY OR IMPROPERLY WE
DO NOT DECIDE HERE IN THE CRIMINAL ACTION AGAINST APPELLEE'S
DRIVER, BUT IF THAT AMOUNTED INFERENTIALLY TO SUBMITTING IN
SAID CASE THEIR CLAIM FOR CIVIL INDEMNITY, THE CLAIM COULD HAVE
BEEN ONLY AGAINST THE DRIVER BUT NOT AGAINST APPELLEE WHO
WAS NOT A PARTY THEREIN.

Every person criminally liable for a felony is also civilly liable.

According to the Court:

This includes restitution, reparation of
indemnification of consequential damages.

"[I]T IS INACCURATE FOR THE VINTOLAS TO CLAIM THAT THE

JUDGMENT IN THE ESTAFA CASE HAD DECLARED THAT THE FACTS
FROM WHICH THE CIVIL ACTION MIGHT ARISE, DID NOT EXIST, FOR IT
WILL BE RECALLED THAT THE DECISION OF ACQUITTAL EXPRESSLY
DECLARED THAT 'THE REMEDY OF THE BANK IS CIVIL AND NOT
CRIMINAL IN NATURE.'

It has, therefore, been held that even if the complaint or information is

silent as to the damages or the intention to prove and claim them, the
offender is still liable for them, and the offended has the right to prove
and claim for them in the criminal case, unless a waiver or the
reservation of the civil action is made.
When Reservation May Be Made
The reservation of the right to institute the separate civil action arising
from the offenses charged shall be made before the prosecution starts
to present its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
The purpose of the rule requiring reservation is to prevent the offended
party from recovering damages twice for the same act or omission.
The proviso requiring that the reservation may be made before the
prosecution starts to present evidence was brought about by the cases
of Tactaquin v. Palileo, Manio v. Gaddi, where despite the appearance of
a private prosecutor, the offended party was not able to present
evidence on the damages because of the plea of guilty of the accused
who was accordingly sentenced.
The Supreme Court in ,he case of Reyes v. Diy, stressed the need to give
the offended party in opportunity to make a reservation, and held that
the mere appearance of a private prosecutor in the criminal case
against the private respondents did not necessarily constitute such
intervention on the part of the aggrieved party as could only import an
intention on her part to press her claim for damages in said criminal
case and waiver of her right to file a separate civil action for damages
because the accused had pleaded guilty upon arraignment and was
immediately sentenced, there was no chance for the aggrieved party to
present evidence in support of her claim for damages and to enter i
reservation in the record to file a separate civil action
Reservation Need not be Express but May Be Implied
While a reading of the afore-quoted provisions shows that the offended
party is required to make a reservation of his right to institute a
separate civil action, jurisprudence instructs that such reservation
may not necessarily be express but may be implied which may be
inferred not only from the acts of the offended party but also from acts
other than those of the latter.
In the Vintola case, the fact that plaintiff actively intervening in the
prosecution of the criminal case through a private prosecutor, is of no
moment.
In ruling that the Estafa case is not a bar to the institution of a civil
action for collection, this Court held that:

As a matter of fact, however, inspite of appellee's statements to the

contrary in its brief, there is no showing in the record before Us that
appellants made of record their claim for damages against the driver or
his employer; much less does it appear that they had attempted to
prove such damages.
The failure of the court to make any pronouncement in its decision
concerning the civil liability of the driver and I or of his employer must
therefore be due to the fact that the criminal action did not involve at all
any claim for civil indemnity."
Later, in Jarantilla, the Court ruled that the failure of the trial court to
make any pronouncement, favorable or unfavorable, as to the civil
liability of the accused amounts to a reservation of the right to have the
civil liability litigated and determined in a separate action, for nowhere
in the Rules of Court is it provided that if the court fails to determine the
civil liability, it becomes no longer enforceable.
Nothing in the records at hand shows that private respondent ever
attempted to enforce its right to recover civil liability during the
prosecution of the criminal action against petitioners.
Thus, even if there was no reservation in the criminal case and that the
civil action was not filed before the filing of the criminal action but
before the prosecution presented evidence in the criminal action, and
the judge handling the criminal case was informed thereof, then the
actual filing of the civil action is even far better than a compliance with
the requirement of an express reservation that should be made by the
offended party before the prosecution presented its evidence.
Where a separate civil action to recover the civil liability of the accused
arising from the crime charged has been reserved, the heirs of the
deceased are precluded from recovering damages in the crimi-nal case
against the accused, for they are not entitled to recover damages
twice for the same criminal act of the accused.
The trial court erred in awarding to the heirs of the deceased
P30,000.00 as civil indemnity for his death despite their reservation.

Effect of Reservation
It has been held that the prescription of action does not prescribe for
the civil action that have been reserved in the criminal action.
Note: Under Section 2, Rule 111 during the pendency of the criminal
action, the running of the period of prescription of the civil action which
cannot be instituted separately or whose proceeding shall be tolled.
Waiver of Civil Liability Arising from Crime

The civil liability arising from a crime may be waived.

criminal case.

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.

The only other possibility is for the accused's civil action to fall under
Article 31 of the Civil Code which provides:

A court trying a criminal case cannot award damages in favor of the

accused.

ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN OBLIGATION NOT

ARISING FROM THE ACT OR OMISSION COMPLAINED OF AS A FELONY,
SUCH CIVIL ACTION MAY PROCEED INDEPENDENTLY OF THE CRIMINAL
PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE LATTER.

The task of the trial court is limited to determining the guilt of the
accused and if proper, to determine his civil liability.

An example of a case falling under Article 31 is a civil action to recover

the proceeds of sale of goods covered by a trust receipt.

A criminal case is not the proper proceedings to determine the private

complainant's civil liability, if any.

Such civil action can proceed independently of the criminal action for
violation of the trust receipt law.

The Court ruled in Cabaero v. Hon. Cantos, that a court trying a

criminal case should limit itself to the criminal and civil liability of the
accused, thus:

In such a case, the validity of the contract, on which the civil action is
based, is not at issue.

[THUS,] THE TRIAL COURT SHOULD CONFINE ITSELF TO THE CRIMINAL

ASPECT AND THE POSSIBLE CIVIL LIABILITY OF THE ACCUSED ARISING
OUT OF THE CRIME.
The counterclaim (and cross-claim or third-party complaint, if any)
should be set aside or refused cognizance without prejudice to their
filing in separate proceedings at the proper time.
This paragraph addresses the lacuna mentioned in Cabaero on the
"absence of clear-cut rules governing the prosecution ofimpliedly
instituted civil action and the necessary consequences and
implications thereof."
The civil liability of petitioners for swindling respondent spouses and for
maliciously filing a baseless suit must be litigated in a separate
proceeding.
Separate Civil Action By the Accused
Thus, the accused may file a separate civil action based on quasi-delict
arising from the same incident and may proceed simultaneously and
independently of the criminal case against him as provided under
section 1(6) which allows "the accused in the criminal case, to file any
cause of action which could have been the subject thereof in a separate
civil action, since the accused is prohibited from setting up any
counterclaim in the civil aspect that is deemed instituted in the
criminal case.
The accused is therefore forced to litigate separately his counterclaim
against the offended party.
If the accused does not file a separate civil action for quasi-delict, the
prescriptive period may set in since the period continues to run until the
civil action for quasi-delict is filed.
Moreover, the accused, who is presumed innocent, has a right to invoke
Article 2177 of the Civil Code, in the same way that the offended party
can avail of this remedy which is independent of the criminal action.
To disallow the accused from filing a separate civil action for quasidelict, while refusing to recog-nize his counterclaim in the criminal case,
is to deny him due process of law, access to the courts, and equal
protection of the law.
Notably, the Court did not order the consolidation but allowed the civil
action to proceed separately, otherwise, it would defeat the prohibition
against a counterclaim.

What is at issue is the violation of an obligation arising from a valid

contract -- the trust receipt.
However, when the civil action is based on a purported contract that is
assailed as illegal per se, as when the execution of the contract is
alleged to violate the Anti-Graft and Corrupt Practices Act, Article 31
does not apply.
In such a situation, the contract if proven illegal cannot create any valid
obligation that can be the basis of a cause of action in a civil case.
Under Article 1409 of the Civil Code, a contract "whose cause, object or
purpose is contrary to law," or a contract that is "expressly prohibited
or declared void by law," is void from the very beginning.
No party to such void contract can claim any right under such contract
or enforce any of its provisions.
Under Section 3(g) of the Anti-Graft and Corrupt Practices Act, entering
into a contract that is manifestly and grossly disadvantageous to the
government is "declared to be unlawful."
If the act of entering into the contract is assailed as a crime in itself,
then the issue of whether the contract is illegal must first be resolved
before any civil action based on the contract can proceed.
Only the Sandiganbayan has the jurisdiction to decide whether the act
of entering into such contract is a crime, where the salary grade of
one of the accused is Grade 27 or higher, as in Criminal Cases Nos.
16889-16900 filed with the Sandiganbayan.
Article 31 speaks of a civil action "based on an obligation not arising
from the act x x x complained of as a felony."
This clearly means that the obligation must arise from an act not
constituting a crime.
Where, the act purporting to create the obligation is assailed as a crime
in itself, no civil action based on such contracts can proceed
independently of the criminal action.
This calls then for the application of the second paragraph of Section 2
of Rule 111 which states that "if the criminal action is filed after the said
civil action has already been instituted, the latter shall be suspended in
whatever stage it may be found before judgment on the merits."
Consequently, the civil case for collection pending in the Malabon Trial
Court must be suspended until after the termination of the criminal
cases filed with the Sandiganbayan.

Limitation on Separate Civil Action by an Accused in the Sandiganbayan

A separate civil action for collection of sum of money filed by the
accused against the offended party while the criminal case in the
Sandiganbayan is pending cannot be consolidated with the criminal
case, for the Sandiganbayan has no jurisdiction over collection cases,
nor can it proceed independently of the criminal cases filed with the
Sandiganbayan.
The accused's collection case for unpaid services from its dredging
contracts with the offended party obviously does not fall under Articles
32, 33 or 34 (on Human Relations) of the Civil Code. Neither does it fall
under Article 2176 (on auasi-delict) of the Civil Code.
Under Section 3 of Rule 111, civil actions falling under Articles 32, 33,
34 or 2176 may proceed independently and separately from the

In contrast, where the civil action is based on a contract that can remain
valid even if its violation may constitute a crime, the civil action can
proceed independently.
Thus, in estafa thru violation of the trust receipt law, the violation of
the trust receipt consti-tutes a crime.
However, the trust receipt itself remains valid, allowing a civil action
based on the trust receipt to proceed independently of the criminal
case.

Procedure, its
retrospectively.

provisions

which

are

procedural

may

apply

Subsidiary Liability
To be treated differently is the subsidiary liability of the employer.
Commencing with Pajarito v. Seneris68 followed by Ozoa v. Vda. de
Madula69 and Catacutan v. Heirs of Kadusale,70 it is now settled that
the subsidiary liability of the employer, including the amounts thereof,
may be determined in the same criminal proceed ings and is reviewable
either by writ of error or through a petitior for review on certiorari on
pure questions of law.
The appeal shall be governed by appeals in criminal cases, since this is
but a continuation of the civil proceedings, the period to be counted not
from the promulgation of judgment but from the notice of the order.
The principle was stressed in Yusay v. Adil,71 a case of less serious
physical injuries and damage to property thru reckless imprudence, with
the Supreme Court's statement that: "The employer is in substance and
effect, a party to the criminal case against his employee, considering
the subsidiary liability imposed upon him by law.'
Basis of Employer's Subsidiary Liability
It bears emphasis, however, that before the employer's subsidiary
liability may be proceeded against, it is imperative that then should be a
criminal action whereby the employee's criminal negligence or delict
and corresponding liability therefor are proved.
If no criminal action was instituted, the employer's liability would not be
predicated under Article 103 of the Revised Penal Code.
The judgment in the criminal action announcing the employee to be
civilly liable is conclusive on the employer not only as to the actuality of
the liability but also as to its amount, from which no appeal by the
employer lies from the judgment of conviction.
The employer must be afforded due process, by holding a hearing to
determine his liability on the basis of the conditions required by law,
namely:
(a)
the existence of an employer-employee relation ship;
(b)
that the employer is engaged in some kind of agency
(c)
that the employee is adjudged guilty of the wrongful act and
found to have committed the offense in the discharge of his duties (not
necessarily any offense he may commit); and
(d)
that said employee is insolvent.
Obligations arising from crimes are governed by Article 1161 of the Civil
Code, which provides that said obligations are governed by penal laws,
subject to the provision ofArticle 2177 and the pertinent provisions of
Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of
Book IV of the Civil Code.
Article 100 of the Revised Penal Code provides that every person
criminally liable for a felony is also civilly liable.
In default of the persons criminally liable, employers engaged in any
kind of industry shall be civilly liable for felonies committed by their
employees in the discharge of their duties.
Article 33 of the Civil Code provides specifically that in cases of
defamation, a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party.
Such civil action proceeds independently of the criminal prosecution and
requires only a preponderance of evidence.
In Joaquin v. Aniceto, the Court held that Article 33 contemplates an
action against the employee in his primary civil liability.
It does not apply to an action against the employer to enforce its
subsidiary civil liability, because such liability arises only after
conviction of the employee in the criminal case or when the employee is
adjudged guilty of the wrongful act in a criminal action and found to
have committed the offense in the discharge of his duties.

Retroactive Application of Amendment

Any action brought against the employer based on its subsidiary liability
before the conviction of its employee is premature.

It has been held although the incident and the actions arising therefrom
were instituted before the promulgation of the 1985 Rules on Criminal

Filing Fees in Estafa cases

Section 20 of Rule 141 Approved on September 14, 1999 provides that

filing fees in estafa cases are also required where the offended party
fails to manifest within fifteen days following the filing of the information
that the civil liability arising from the crime has been or would be
separately prosecuted.
Filing Fee as a Lien
When the offended party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate or exemplary damages,
the filing fees for such civil action as provided in these Rules shall
constitute a first lien on the judgment except in an award for actual
damages.
In cases wherein the amount of damages, other than actual, is alleged
in the complaint or information, the corresponding filing fees shall be
paid by the offended party upon the filing thereof in court for trial
Explaining how the foregoing amendment came about, Justice Narvasa
(later Chief Justice) in General v. Claravall, stated:
"THE LAST TWO (2) PARAGRAPHS PRESCRIBE A RULE DIFFERENT FROM
THAT IN MANCHESTER, AND IN THE 1985 RULES ON CRIMINAL PROCEDURE.
Under the 1985 Rules, the filing fees for the civil action impliedly
instituted with the criminal action had to be paid first to the Clerk of the
Court where the criminal action was com-menced, without regard to
whether the claim for such damages was set out in the information or
not.
Under the 1988 Rules, however, it is only when 'the amount of
damages, other than actual, is alleged in the complaint or information
that the corresponding filing fees shall be paid by the offended party
upon the filing thereof in court for trial.
In any other case i.e., when the amount of damages other than the
civil action "to enforce civil liability against the accused by way of moral,
nominal, temperate or exemplary damages shall (merely) constitute a
first lien on the judgment except in an award for actual damages."
The Court's plain intent to make the Manchester doctrine, requiring
payment of filing fees at the time of the commencement of an action
applicable to impliedly instituted civil actions under Section 1, Rule
111 only when "the amount of damages, other than actual, is alleged in
the complaint or information has thus been made manifest by the
language of the amendatory provisions."
For the guidance of all concerned when a civil action is deemed
instituted with the criminal action in accordance with Section 1, Rule
111 of the Rules of Court because the offended party has NOT waived
the civil action, or reserved the right to institute it separately, or
instituted the civil action prior to the criminal action the rule is as
follows:
a)
when "the amount of damages, other than actual, is alleged
in the complaint or information" filed in court, then "the corresponding
filing fees shall be paid by the offended party upon the filing thereof in
court for trial";
b)
in any other case, however i.e., when the amount of
damages is not so alleged in the complaint or information filed in court,
the corresponding filing fees need not be paid and shall simply
"constitute a first lien on the judgment, except in an award for actual
damages."
The ruling in General v. Claravall, especially the last subparagraph
above-quoted, was actually intended to apply to a situation wherein
either: (1) the judgment awards a claim not specified in the pleading, or
(2) the complainant expressly claims moral, exemplary, temperate
and/or nominal damages but has not specified ANY amount at all,
leaving the quantification thereof entirely to the trial court's discretion
and NOT to a situation where the litigant specifies some amounts or
parameters for the awards being sought, even though the different
types of damages sought be not separately or individually quantified.
To hold otherwise, would be to permit litigants to continue availing of
one more loophole in the rule on payment of filing fees, and would not
serve to attain the purpose of the revised Sec. 1 of Rule 111, which is
"to discourage the gimmick of libel complainants of using the fiscal's
office to include in the criminal information their claim for
astronomical damages in multiple millions of pesos without paying any
filing fees."

which he had already paid for under a contract to sell.

SEC. 2.
When Separate Civil Action is Suspended
Suspension of Civil Action Arising from Crimes
Except for civil actions provided for in Articles 32, 33, 34 and 2176 of
the Civil Code, the civil action which has been reserved cannot be
instituted until final judgment has been rendered in the criminal
action.

A criminal action was likewise filed against the respondent for violation
of P.D. No. 957 regulating the sale of subdivision, etc., and providing
penalties therefor.
Petitioner moved to consolidate the two (2) cases on the basis of Rule
111, Section 3(a).
The trial court granted consolidation but the Court of Appeals reversed
the order.

The action contemplated herein is a civil action arising from a crime.

If reserved or filed separately and a criminal case is filed, it has to be
suspended to await final judgment in the criminal action.
It may, however, be consolidated upon application with the court
trying the criminal action.
Article 31 speaks of a civil action "based on an obligation not arising
from the act x x x complained of as a felony."
This clearly means that the obligation must arise from an act not
constituting a crime.
Where, the act purporting to create the obligation is assailed as a crime
in itself no civil action based on such contracts can proceed
independently of the criminal action.
This calls then for the application of the second paragraph of Section 2
of Rule 111 which states that "if the criminal action is filed after the said
civil action has already been instituted, the latter shall be suspended in
whatever stage it may be found before judgment on the merits."
Consequently, the civil case for collection pending in the Malabon Trial
Court must be suspended until after the termination of the criminal
cases filed with the Sandiganbayan.
The suspension of the civil case for collection of sum of money (based
on an obligation arising from contracts alleged to be a crime pending
before the Sandiganbayan) will avoid the possibility of con-flicting
decisions between the Sandiganbayan and the Malabon trial court on
the validity of NIC's dredging contracts.
If the Sandiganbayan declares the dredging contracts illegal and void
ab initio, and such declaration becomes final, then NIC's civil case for
collection of sum of money will have no legal leg to stand on.
However, if the Sandiganbayan finds the dredging contracts valid, then
NIC's collection case before the Malabon trial court can then proceed
to trial.
No suspension if civil action does not arise from Crime
In Gandiongco u. Penaranda, the Supreme Court affirmed Judge
Penaranda's refusal to suspend the civil case for legal separation and
support with damages based on concubinage despite the filing of a
concubinage case with the municipal court.
His reason is that Section 2 of Rule 111 of the 1985 Rules on Criminal
Procedure refers to civil actions to enforce the civil liability arising from
the offense charged.

The Supreme Court held that the civil actions that may be consolidated
under Section 3(a), Rule 111 is one for civil liability arising from the
criminal offense or of ex-delicto of which the civil action in this case is
not one, but which is based on the contract to sell or a civil action
arising ex-contracto, hence, Rule 111 is not applicable.
The Supreme Court, however, justified the consolidation of the action for
specific performance with the criminal action for violation of P.D. No.
957 under Section 1, Rule 31 of the Rules of Court as interpreted in
Canos v. Peralta,* where the Court sustained the order of a trial court to
consolidate a civil action (an action for the recovery of wage differential,
overtime and termination pay, plus damages) with a criminal action (for
violation of the Minimum Wage Law), it was held that:
"A COURT MAY ORDER SEVERAL ACTIONS PENDING BEFORE IT TO BE
TRIED TOGETHER WHERE THEY ARISE FROM THE SAME ACT, EVENT OR
TRANSACTION, INVOLVE THE SAME OR LIKE ISSUES, AND DEPEND
LARGELY OR SUBSTANTIALLY ON THE SAME EVIDENCE, PROVIDED, THAT
THE COURT HAS JURISDICTION OVER THE CASES TO BE CONSOLIDATED
AND THAT A JOINT TRIAL WILL NOT GIVE ONE PARTY AN UNDUE
ADVANTAGE OR PREJUDICE THE SUBSTANTIAL RIGHTS OF ANY OF THE
PARTIES, X X X"
The obvious purpose of the above rule is to avoid multiplicity of suits, to
guard against oppression and abuse, to prevent delays, to clear
congested dockets, to simplify the work of the trial court; in short, the
attainment of justice with the least expense and vexation to the parties
litigants. * * *
The consolidation of two (2) cases where petitioner's counsel may act as
counsel for the plaintiff in the civil case and private prosecutor in the
criminal case, will be conducive to the early termina-tion of the two (2)
cases, and will redound to the benefit and convenience of the parties;
as well as to the speedy administration of justice.
Under this principle, civil actions under Articles 32, 33, 34 and 2176
may be consolidated with the criminal action subject to jurisdictional
constraints.
The rule on jurisdiction in criminal cases which is determinable by the
prescribed penalty regardless of other imposable accessory or other
penalties, included in the civil liability arising from such offenses or
predicated therein irrespective of kind, nature, value or amount thereof,
no longer applies since the civil
action to be consolidated does not arise from the criminal offense
charged.
The period of prescription of the civil action which cannot be instituted
separately or whose proceeding has been suspended shall not run, refer
to the civil action arising from a crime that has not been reserved or
when it is filed ahead of the criminal action.

An action for legal separation is not to recover civil liability in the main,
but is aimed at the conjugal rights of the spouses and their relations to
each other within the contemplation of Articles 97 to 108 of the Civil
Code.

The civil action that may be reserved is the civil arising from the crime.

The principle applies even with the 1988 Amendments where the Civil
action does not also fall under Articles 32, 33, 34 and 2176 of the Civil
Code.

The subsidiary liability may only be enforced after the final judgment of
conviction.

In fine, a civil action may not be suspended under Rule 111 where the
action is not to enforce civil liability from the crime charged.
Consolidation of Civil with Criminal Action Even if not Arising from Crime
May consolidation of civil actions with the criminal action be allowed
where the civil action is not to enforce civil liability arising from a crime?
In Naguiat v. Intermediate Appellate Court, the petitioner filed a
complaint for specific performance with damages to compel the
respondent to deliver to him certificates of title covering their lots

The civil arising from a quasi-delict is not suspended but may proceed
simultaneously.

However, prescription of the cause of action quasi-delicto does not

operate as a bar to in action to enforce the civil liability arising from the
crime especially where the latter action had been expressly reserved.
The dismissal of the action based on culpa aquiliana is not a bar to the
enforcement of the subsidiary liability of the employer.
Once there is a conviction for a felony, final in character, the employer
becomes subsidiarily liable if the commission of the crime was in the
discharge of the duties of the employer.
The Court allowed the indemnity in the foregoing case despite the

erroneous procedure of petitioner in seeking a remedy in filing a petition

for certiorari instead of an appeal from the erroneous order of the trial
court dismissing the action on the ground prescription since it is an
action for quasi-delict.
The Court stressed that it is "loathe to deprive petitioners of the
indemnity to which they are entitled by law and a final judgment of
conviction based solely on technicality."

admittedly stolen by the accused, or to the return of the goods, if it was

still feasible. In an identical case, where the lower court had failed to
provide for the corresponding civil liability, the Supreme Court ordered
the said case remanded to the court of origin, for the purpose of
determining the civil liability of the accused.
The principle applies even in cases of acquittal, unless there is a clear
showing that the act from which the civil liability might arise did not
exist.

Effects of Judgment of Acquittal

Extinction of the penal action does not carry with it extinction of the
civil.
However, the civil action based on delict may be extinguished if there
is a finding in a final judgment that the act or omission from which the
civil liability may arise did not exist.
Even if there is a finding in a final judgment that the act or omission
from which the civil might arise did not exist, this would only refer to the
civil liability arising from the offense since this is the only civil liability
that is deemed instituted with the criminal action.
It is a fundamental postulate of our law that "every person criminally
liable for a felony is also civilly liable."
And even if an accused is acquitted of the crime charged, such will not
necessarily extinguish the civil liability, unless the court declares in a
final judgment that the fact from which the civil might arise did not
exist.

The duty of the court to a award, civil liability inspite of acquittal is

compellable by mandamus.
In Lontoc and Jarantilla, the court held that under the present
jurisprudential matters, where the trial court acquits the accused on
reasonable doubt, it could very well make a pronouncement on the civil
liability of the accused and the complainant could file a petition for
mandamus to compel the trial court to include such civil liability in the
judgment of acquittal.
Acquittal in a criminal case does not bar continuation of the civil case
connected therewith where:
1)

the acquittal is based on reasonable doubt;

2)
the decision contains a declaration that the liability of the
accused is not criminal but only civil; or
3)
the civil liability is not derived from or based on the criminal
act of which the accused is acquitted.

In the landmark case of Padilla v. Court of Appeals, the Supreme Court

en bane, thru Justice Hugo Gutierrez emphasized that the court may
award civil liability in the same proceedings ever if the accused is
acquitted.

Thus, the acquittal of the accused from the criminal charge will not
necessarily extinguish the civil liability unless the Court declares in the
judgment that the fact from which the civil liability might arise did not
exist.

This was to be followed in People v Jalandoni, Maxima v. Geroch,

Vizconde u. IAC, People v. Ligon, and other cases, until the doctrine
found its way in the third paragraph of Section 2, Rule 120 of the 1985
Rules on Criminal Procedure, which provided that "in case of acquittal,
unless there is a clear showing that the act from which the civil liability
might arise did not exist, the judgment shall make a finding on the civil
liability of the accused in favor of the offended party."

Similarly, "extinction of the penal action does not carry with it the
extinction of civil liability unless the extinction proceeds from a
declaration in a final judgment that the fact from which the civil liability
might arise did not exists."

Under The Revised Rules on Criminal Procedure: "In case the judgment
is of acquittal, it shall state whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt.
In either case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist."
There has been a change in the language of the rule.
Whereas the 1985 rule was more categorical in requiring that "the
judgment shall make a finding on the civil liability of the accused in
favor of the offended party," the present rule simply states that "the
judgment shall determine if the act or omission from which the civil
liability might arise did not exist."
It seems fairly obvious, however, that despite the acquittal of the
accused, if the act or omission from which the civil liability might arise
do exist, when the acquittal is merely because of failure to prove the
guilt of the accused beyond reasonable doubt then the court should
award the civil liability in favor of the offended party in the same
criminal action.
Duty of Court to Award Civil Liability
Even before the 1985 amendments, the settled jurisprudence is that it is
the duty of the trial judge to award civil liability in favor of the offended
party despite the acquittal of the accused unless the fact from which the
civil might arise does not exist.
In a case, the trial judge in not having included civil liability in the
decision, stated that it cannot exercise discretion alone in determining
the liability upon the mere allegations, the same being evi-dentiary.
Considering, however, the fact that the trial court's attention was
drawn to the existence of a lapsus in the decision, in the motion for
reconsideration filed by the complainant, within the reglementary
period, and taking into account the petition to supply what had been
omitted, the trial judge could have set the motion for reconsideration for
hearing, in order to receive evidence, as to the value of the properties

In Caina v. People, however, the extinction of the liability civil was

inferred from a finding that there is no negligence even if the acquittal is
based on failure to prove guilt beyond reasonable doubt.
Similarly, Sanchez v. Far East Bank and Trust Company, held that
recourse to appeal the civil aspect from a judgment of acquittal may
only be resorted if the nature of he court's judgment fall under any of
the three categories stated above, as reiterated in Salazar v. People
(supra) otherwise, the extinction of the penal extinguish the civil.
The civil is deemed instituted with the criminal here the presence of any
instances precluding the automatic institution of the civil action
together with the criminal complaint.
Thus, a separate civil action may no longer be prosecuted.
Principles Allowing- Separate Civil Action Despite Acquittal Even Without
Reservation
CIVIL ACTIONS BASED ON CRIME
In Calalang v. Intermediate Appellate Court, where a civil action for
damages based on the crime of murder was held as not extinguished by
the dismissal of the criminal case by the Fiscal for failure of the
complaint to establish a prima facie case, the Supreme Court reiterated
the case of People u. Velez, that the dismissal of the information or the
criminal action (upon motion of the fiscal) does not affect the right of
the offended party to institute or continue the civil action already
instituted arising from the offense, because such dismissal or
extinction of the penal action does not carry with it the extinction of the
civil action.
The reason most often given for this holding is that the two proceedings
are not between the same parties.
Different rules as to the competency of witnesses and weight of
evidence necessary to the findings in the two proceedings also exist.
In a criminal action, the State must prove its case by evidence which
shows the guilt of the defendant beyond reasonable doubt, while in a
civil action it is sufficient for the plaintiff to sustain his cause by
preponderance of evidence only.

Therefore, the insufficiency of evidence to support a murder charge

does not imply that there is no sufficient evidence to support the civil
case based on the same alleged act.

instituted with the criminal.

Under the Civil Code, when a person, claiming to be injured by a

criminal offense, charges another with the same, for which no
independent civil action is granted in this Code or any special law, but
the justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or fails
to institute criminal proceedings, the complainant may bring a civil
action for damages against the alleged offender.

Where petitioner sought to enforce respondent's obligation to make

good the value of the checks in exchange for the cash he delivered to
respondent such civil action may proceed independently of the criminal
proceedings and regardless of the result of the other (under Article 31)
and its filing after the dismissal of the criminal case for estafa and
maybe prosecuted without violating the rule against forum shopping,
since they are based on different causes of action, expressly allowed by
law.

COMPARE

The second sentence of Section 3(b) before under the 1985 Rules
provides that in other cases, the person entitled to the action may
institute it in the jurisdiction and in the manner provided by law against
the person who may be liable for restitution of the thing and reparation
or indemnity for the damage suffered.
The rule clearly contemplates the filing of a separate civil action. Article
29 of the Civil Code expressly provides that when the accused in a
criminal prosecution is acquitted on the ground that his guilt has not
been proved beyond reasonable doubt, a civil action for damages for
the same act or omission may be instituted.

Such civil action may be supported by a preponderance of evidence.

Upon the defendant's motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint should be found
to be malicious.
If during the pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action shall be
suspended until the termination of the criminal proceedings.

The dismissal of the criminal case is not res judicata even if the civil is
alleged to arise from delict, since the nature of the cause of action is
determined by the facts alleged in the complaint as constituting a cause
of action.

Kinds of Acquittal
In a criminal action, our law recognizes two kinds of acquittal, with
different effects on the civil liability of the accused.
First is an acquittal on the ground that the accused is not the author of
the act or omission complained of.
This instance closes the door to civil liability, for a person who has been
found to be not the perpetrator of any act or omission cannot and can
never be held liable for such act or omission.
There being no delict, civil liability ex delicto is out of the question, and
the civil action, if any, which may be instituted must be based on
grounds other than the delict complained of.

This was the teaching ofElcano v. Hill, where it was expressly held that
the extinction of the civil liability referred to in par. (c), Sec. 2 of Rule
111 refers exclusively to civil liability arising from crime; whereas, the
civil liability for the same act considered as a quasi-delict only and not
as a crime is not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or has not been
committed by the accused. In other words, an acquittal based on the
finding that the facts upon which civil liability did not exist, bars the
filing of an independent civil action if it is based on the crime.
Application of the rule was illustrated by Justice Relova in Marcia v.
Court of Appeals, as follows: "Otherwise stated, unless the act from
which the civil liability arises is declared to be non-existent in the final
judgment, the extinction of the criminal liability will not carry with it the
extinction of the civil liability.

This is the situation contemplated in Rule 111 of the Rules of Court.

The second instance is an acquittal based on reasonable doubi on the
guilt of the accused.
In this case, even if the guilt of the accused has not been satisfactorily
established, he is not exempt from civil liability which may be proved by
preponderance of evidence only
This is the situation contemplated in Article 29 of the Civil Code where
the civil action for damages is "for the same act or omission.
Although the two actions have different purposes, the matters discussed
in the civil case are similar to those discussed in the criminal case.
However, the judgment in the criminal proceeding cannot be read in
evidence in the civil action to establish any fact there determined, even
though both actions involve the same act or omission.
The reason for this rule is that the parties are not the same and
secondarily, different rules of evidence are applicable.
Hence, notwithstanding herein petitioner's acquittal, the Court of
Appeals in determining whether Article 29 applied, was not precluded
from looking into the question of petitioner's negligence or reckless
imprudence.

Thus, if a person is charged with homicide and successfully pleaded selfdefense, his acquittal by reason thereof will extinguish his civil liability.
He has not incurred any criminal liability.
On the other hand, if his acquittal is, for instance, due to the fact that he
was not sufficiently identified to be the assailant, a civil action for
damages may be maintained. His acquittal is not due to non-existence
of the crime from which civil liability might arise, but because he was
not, in the eyes of the court, sufficiently identified as the perpetrator.
Where the court states that the evidence throws no light on the cause of
fire and that it was an unfortunate accident for which the accused
cannot be held responsible, this declaration fits well into the exception
of the rule which exempts the accused from civil liability.
Likewise, in Albornoz v. Albornoz,33 it was the ruling that "where the
judgment in a criminal action contains an express declaration that the
basis of claimant's action did not exist, the latter's action for civil
liability is barred under Section l(d), Rule 107 of the Rules of Court."
In a prosecution for estafa or swindling through falsification of a
commercial document, the civil is deemed instituted with the criminal
where the in the absence of any instances precluding the automatic
institution of the civil action together with the criminal complaint (the
offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action).

A distinction exists between the civil liability arising from a crime and
the responsibility for quasi-delict or culpa contractual.
The same negligence causing damages may produce civil liability
arising from a crime under the Penal Code, or create an action for quasidelicto or culpa extra-contractual under the Civil Code.
Therefore, the acquittal or conviction in the criminal case is entirely
irrelevant in the civil case.

Such action requires only a preponderance of evidence.

Effect of 1988 Amendment and The Revised Rules on Criminal Procedure
The civil liability therefor under Articles 32,33, 34 and 2176 or those
where the source of civil obligation is not based on the criminal
offense is not affected by the result of the criminal action.

What Civil Action Is Extinguished

The rule of extinction was limited to civil actions based on culpa criminal
and does not include culpa aquiliana or quasi-delict.

A quasi-delict or culpa aquiliana is a separate legal institution under the

Civil Code, with a substantivity all its own, and individuality that is
entirely apart and independent from a delict or crime.

In other words, the extinction of the civil liability referred to in par. (e) of
Section 3, Rule 111 (1964 Rules), refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as a quasi-delict only and not as a
crime is not extinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been committed
by the accused.
Briefly stated, culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.
It results, therefore, that the acquittal of Reginal Hill in the criminal case
has not extinguished his liability for quasi-delict, hence that acquittal is
not a bar to the instant action against him.
Criminal Actions To Recover Civil Liability Arising From Delict and Civil
Actions Based on Quasi-Delict may Proceed Simultaneously

Given the 1988 amendments, where the accused is acquitted on the

ground that his guilt has not been established beyond reasonable doubt
or that the obligation is purely civil without the court making a finding
on the civil liability of the accused in favor of the offended party, what
would be the effect of such judgment on the civil aspect of the case. Will
the foregoing rulings permitting the prosecution of a separate civil
action still apply?
In Heirs of the Late Teodoro Guaring v. Court of Appeals, the court wrote
that Sec. 2(b), Rule 111 of the Rules of Criminal Procedure which
provides that extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a declaration
in a final judgment that the fact from which the civil might arise did not
exist" and that this rule contemplates a civil action arising from a crime
and not a civil action arising from a quasi delict.
The court underscored the statement in Tayag v. Alcantara, that the civil
liability for the same act considered as a quasi delict only and not as a
crime is not extinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been committed.

Thus, a civil action arising from the crime charged and a civil action with
the civil code provisions as the source of obligation may proceed
simultaneously and independently of each other, and a favorable and
unfavorable judgment in either case cannot be considered as a bar to
the other.

Further cited by the court to the same effect is Gula u. Dianala.

A private prosecutor may intervene in the criminal action without

waiving the right to file a separate civil action under Articles 32, 33, 34
and 2176 regardless of the result of the criminal action.

Jurisdiction of Court to Pass upon Motion for Reconsideration of

Offended Party in Connection with Civil Liability Despite Appeal by
Accused

On the issue of whether or not an action for damages arising from a

vehicular accident may plaintiff recover damages against the employer
of the accused driver both in the criminal case (delict) and the civil case
for damages based on quasi-delict, but not recover twice for the same
act, the court wrote:

If the court, independently of the appeal of the accused, has jurisdiction,

within fifteen days from the date of the judgment, to allow the appeal of
the offended party, it also has jurisdiction to pass upon the motion for
reconsideration filed by the private prosecution in connection with the
civil liability of the accused.

"Consequently, a separate civil action for damages lies against the

offender in a criminal act, whether or not he is criminally prosecuted
and found guilty or acquitted, provided that the offended party is not
allowed, if he is actually charged also criminally, to recover damages on
both sides, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary."

SEC. 3.
When Civil Action may Proceed Independently

Extinction of Penal Does not Extinguish Civil Liability

Parenthetically, "physical injuries" under Article 33 is used in a generic

sense.

In Mendoza v. Arrieta, it was held that where the acquittal was not
based upon reasonable doubt, a civil action for damages can no longer
be instituted.

In Bunag v. Court of Appeals, a separate action for Damages based on

forcible abduction with rape was allowed despite prior dismissal of
case by the Fiscal at the preliminary investigation stage.

The civil action which should be suspended after the institution of the
criminal action is that arising from delict and not the civil action based
on quasi-delict or culpa aquiliana.

It includes consummated, frustrated and attempted homicide and death

arising from delict which includes reckless imprudence or quasi-delict.

Illustrative Case:
IN A PROSECUTION FOR ESTAFA OR SWINDLING THROUGH
FALSIFICATION OF A COMMERCIAL DOCUMENT, THE CIVIL IS DEEMED
INSTITUTED WITH THE CRIMINAL IN THE ABSENCE OF ANY INSTANCES
PRECLUDING THE AUTOMATIC INSTITUTION OF THE CIVIL ACTION
TOGETHER WITH THE CRIMINAL COMPLAINT (THE OFFENDED PARTY
WAIVES THE CIVIL ACTION, RESERVES THE RIGHT TO INSTITUTE IT
SEPARATELY OR INSTITUTES THE CIVIL ACTION PRIOR TO THE CRIMINAL
ACTION).
Respondent's right to damages was deemed prosecuted in the criminal
proceeding.
Thus, a separate civil action may no longer be prosecuted where the
accused was acquitted on the ground that the accused has not
committed the crime Imputed to her.
This refers to the Civil liability arising from the crime that was deemed

Respondent's right to damages was deemed prosecuted in the criminal

proceeding.

It was clarified in Gula v. Dianila, that Mendoza v. Arrieta was based on

culpa criminal for which reason "we held the suit for damages barred."

Thus, a separate civil action may no longer be prosecuted where the

accused was acquitted on the ground that the accused has not
committed the crime imputed to her.

Since the cause of action of plaintiff-appellant is based on culpa

aquiliana and not culpa criminal thus precluding the application of the
exception in Sec. 3(c) of Rule 111 and the fact that it can be inferred
from the criminal case that accused was acquitted on reasonable doubt
because of dearth of evidence and lack of veracity of the two principal
witnesses, the doctrine in Mendoza v. Arrieta, will not find application.

Civil Actions Not Based on Crime Not Extinguished

Acquittal in a criminal action bars the civil arising therefrom where the
judgment of acquittal holds that the accused did not commit the
criminal acts imputed to him.
As earlier ruled by the Supreme Court, the civil liability that is deemed
extinguished is the civil liability based on crime.
But not the civil liability based on sources of obligation other than the
criminal offense although arising from the same act or omission.

This provision clearly provides for a separate civil action for restitution,
reparation and indemnity for the damages suffered by the offended
party without reference to the source of the obligation but was held to
refer to Article 29 of the Civil Code which provides that when the
accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be instituted.

Consolidation of Criminal and Civil Cases

Libel A criminal case for libel and a separate and independent civil
action to enforce the civil liability arising from the libel may be
consolidated for joint trial, where the two (2) cases involve common or
identical questions of fact and law, and would even have the same
witnesses; and thus avoid multiplicity of suits, prevent delay, clear
congested dockets, and save unnecessary costs and expenses, and
simplify the work of the trial court.
In fact Mckee v. IAC stressed the need for consolidation of criminal
and civil actions to prevent conflicting decisions.
The final decision of guilt in criminal action is not relevant to civil action
based on quasi-delict.
There is no legal impediment against such consolidation.

Section 1, Rule 31 of the Rules of Court which seeks to avoid multiplicity

of suits, guard against oppression and abuse, prevent delays, clear
congested dockets to simplify the work of the trial court, or in short,
attain justice with the least expense to the parties litigant, would have
easily sustained a consolidation, thereby preventing the unseeming, if
not ludicrous, spectacle of two (2) judges appreciating, according to
their respective orientation, perception and perhaps even prejudice, the
same facts differently, and thereafter rendering conflicting decisions.

In such case, the heirs of the deceased appellant are substituted as

parties in the criminal case and his estate shall answer for his civil
liability.
ABANDOMENT OF SENDAYDIEGO; DEATH OF ACCUSED PENDING APPEAL
EXTINGUISH CIVIL LIABILITY BASED ON CRIME

A civil case for replevin may proceed independently of the criminal

cases for falsification and grave coercion.

People v. Bayotas, overruled People v. Sendaydiego, where it was held

that despite the death of the accused during the pendency of the
appeal, the proceedings shall continue for the purpose of determining
his civil liability arising from the crime.

While both cases are based on the same facts, the quantum of proof
required for holding the parties liable therein differ.

The Supreme Court en bane held in Bayotas (which is a case of rape)

that:

SEC. 4.
Effect of Death on Civil Actions
Death of Accused on Appeal
The death of the accused after arraignment and during the pendency of
the criminal action shall extinguish the civil liability arising from the
delict.
In Torrijos v. Court of Appeals,' a case of estafa, where despite the death
of the accused during the pendency of his appeal, which thereby
extinguished his criminal liability, the appeal was allowed to proceed
with respect to the issue of civil liability of the accused (arising from a
contract of purchase and sale).
(The rule was not observed in People v. Satorre, where the case for
Murder was dismissed in view of the death of the appellant.)
However, in People u. Salcedo, where the accused in a murder case died
during appeal, the case was dropped with respect to his criminal liability
only.
This was followed by People v. Sendaydiego a case of malversation thru
falsification, where it was held that despite the death of the accused,
the Supreme Court can continue to exercise appellate jurisdiction over
an accused's possible civil liability for the money claims of the claimants
arising from criminal acts complained of, as if no criminal case has been
instituted against him, thus making applicable, in determining his civil
liability, Article 30 of the Civil Code.
When a separate civil action is brought to demand civil liability arising
from a criminal offense, and no criminal proceedings are instituted
during the pendency of the civil case, preponderance of evidence shall
likewise be sufficient to prove the act complained of.)
The Supreme Court further stated that Sendaydiego's appeal will be
resolved only for the purpose of showing his criminal liability which is
the basis of the civil liability for which his estate would be liable.
Though the death of an accused-appellant during the pendency of an
appeal extinguished his criminal liability, his civil liability survives.
Extinction of criminal liability does not necessarily mean that the civil
liability is also extinguished.

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

there is no more need for the proposal since with the death to the
accused, the civil liability arising from the offense is also extinguished.
The rule was, however, retained by the Court to apply to the separate
civil actions under Section 3 of the same Rule. This would, however, only
apply if these actions are con-solidated with the criminal. Otherwise,
since these are purely civil actions, the effects of death should be
governed by the Rules on Civil procedure.16
SEC. 5.
Judgment in Civil Action not a Bar
COMMENT:
WHILE EVERY PERSON CRIMINALLY LIABLE IS ALSO CIVILLY LIABLE, THE
CONVERSE IS NOT TRUE.
EXTINCTION OF THE PENAL DOES NOT CARRY WITH IT EXTINCTION OF
THE CIVIL UNLESS THE EXTINCTION PROCEEDS FROM A DECLARATION
IN A FINAL JUDGMENT THAT THE FACT FROM WHICH THE CIVIL MIGHT
ARISE DID NOT EXIST.

2.
Corollarily,
the
claim
for
civil
liability
survives
notwithstanding the death of accused, if the same may also be
predicated on a source of obligation other than delict.

Similarly, a final judgment rendered in a civil action absolving the

defendant from the civil liability is no bar to a criminal action unless
the civil is a prejudicial question which involves an issue similar or
intimately related to the issue raised in the criminal, the resolution of
which determines whether or not the criminal action may proceed.

Article 1157 of the Civil Code enumerates these other sources of

obligation from which the civil liability may arise as a result of the
same act or omission:

SEC. 6.
Suspension by Reason of Prejudicial Question

a.
b.
c.
d.

Law
Contracts;
Quasi-contracts; xx x; and
Quasi-delicts.

3.
Where the civil liability survives, as explained in Number 2
above, an action for recovery therefor may be pursued but only by filing
a separate civil action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended.
This separate civil action may be enforced either against the
executor/administrator or the estate of the accused depending on the
source of obligation upon which the same is based as explained above.
4.
Finally, the private party need not fear a forfeiture of his
right to file this separate civil action by prescription, in cases where
during the prosecution of the criminal action and prior to its extinction,
the private offended party instituted together with the civil action.
In such case, the statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal case, conformably with
the provisions of Article 1155 of the Civil Code, that should thereby
avoid any apprehension on a possible deprivation of right by
prescription.
Thus the Supreme Court applying this set of rules to the case at bench
held that the death of the appellant extinguished his criminal liability
and the civil liability based solely on the act complained of, i.e., rape.
Consequently, the appeal was dismissed."

SEC. 7.
Elements of Prejudicial Question
Section 7 limits a prejudicial question to a "previously instituted civil
action" in order to minimize possible abuses by the subsequent filing of
a civil action as an afterthought for the purpose of suspending the
criminal action.
a.
The rule on precedence of the criminal action does not apply
when the civil action is a prejudicial question.1
b.
Prejudicial question is an exception to precedence of
criminal case.

of the civil, it must appear not only that the civil case involves the
same facts upon which the criminal prosecution is based, but also that
the resolution of the issue raised in said civil action would be necessarily
determinative of the guilt or innocence of the accused.
Where the defense (as defendant) in the civil case of the nullity and
forgery of the alleged prior deed of sale in favor of plaintiff in the civil
case and complaining witness in the criminal case is based on the very
same facts which would be necessarily determinative of the guilt or
innocence as accused in the criminal case, the civil case constitutes a
prejudicial question.
If the first alleged sale is void or fictitious, then there would be no
double sale and petitioner would be innocent of the offense charged.
A conviction in the criminal case (if it were allowed to proceed ahead)
would be a gross injustice and would have to be set aside if it were
finally decided in the civil action that indeed the alleged prior deed of
sale was a forgery and spurious.
b.
The pendency of an intestate proceeding will not constitute
a prejudicial action in a criminal case for Theft of standing crops filed by
a person claiming to have a valid contract of lease on the property
from its legal owner against a person claiming co-ownership of the land
leased whose claim is pending in an intestate proceeding."
Even if the Intestate Court should annul the project of partition and
uphold private respondent's ownership of the lots herein, that would not
be determinative of the criminal responsibility of private respondents for
theft of the standing sugar crop, which petitioner claims he has
planted in good faith by virtue of a valid contract of lease with the
mortgagee.
c.
Ejectment: Pendency of an ejectment case does not
constitute a prejudicial question to the charge of the theft filed by
alleged lessee against a person claiming co-ownership rights with the
lessor, for illegal harvest of sugarcane on land leased.
Pendency of action for damages based on illegal possession of property
not a prejudicial question to the charge of theft filed by the alleged
lessee against the plaintiff in the damage suit.
As the two cases are based on the same facts, and the entitlement to
damages being predicated on the unlawful taking treated of in the
Criminal Action, no necessity arises for that civil case to be determined
ahead of the Criminal Action.

Prejudicial Question, Defined: Elements of a Prejudicial Question

According
issue in a
instituted
institution

to jurisprudence, a prejudicial question involves a similar

civil action which was pending when the criminal action was
or before the amendment, in a civil action filed after the
of the criminal action.

It is one based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of
the accused, and for it to suspend the criminal action, it must appear
not only that said case involves facts intimately related to those upon
which the criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.
The doctrine of prejudicial question comes into play generally in a
situation where civil and criminal actions are pending and the issues
involved in both cases are similar or so closely-related that an issue
must be pre-emptively resolved in the civil case before the criminal
action can proceed.

Stated differently, the issues raised in the civil cases do not involve
the pivotal question of who planted the sugarcane and, therefore, are
not determinative juris et de jure of guilt or innocence in the Criminal
Action.
If as the Guanteros contend, they were the ones who did the planting,
that is a matter of defense that may be interposed by them in the
Criminal Action.
It is not an issue that must be preemptively resolved in the civil case
before proceedings in the Criminal Action may be undertaken.
d.
A civil action for accounting and recovery of sum of money
are not determinative of the innocence or guilt of petitioner in the
prosecution for seventy-five (75) counts of estafa

In People v. Navoa, and in People v. Sendaydiego, the Supreme Court

ruled that only the criminal liability (including the fine, which is
pecuniary, but not civil) of the accused is extinguished by his death, but
the civil liability remains.

Bayotas was reiterated in People v. Rosalijos,ll where during the

pendency of the appeal convicting the accused of murder, the latter
died, the court ordered the dismissal of the criminal liability of accused
and ordered the substitution of his heirs as to the civil liability.

The claim of the government for the civil liability survives but only if the
offense can be proved.

However, in light of Bayotas, the appeal was dismissed both as to the

criminal and civil aspects thereof.

The Supreme Court continues to exercise appellate jurisdiction over the

petitioner's possible civil liability for the money claims of the
government arising from the alleged criminal acts complained of, in
much the same way as when no criminal action had been filed. No
separate civil action need be instituted.

The ruling in Bayotas and its progeny which require the filing of a
separate civil action arising from the same act or omission where the
accused dies during the pendency of the action was criticized since
these civil actions are deemed impliedly instituted with the criminal
action unless reserved waived or a separate civil action was filed.

Where the civil case is not based on a fact distinct and separate from
the estafa, as both actions arose from the same fact or transaction,
the former does not constitute ,a prejudicial question, for the
determination of the criminal action.

Thus, as every crime gives rise to a penal or criminal action for the
punishment of the guilty party, and also to a civil action for the
restitution of the thing, repair of the damage and indemnification for the
losses whether the particular act or omission is done intentionally or
negligently or whether or not punishable by law, subsequent decisions
of the Supreme Court held that while the criminal liability of an
appellant is extinguished by his death, his civil liability subsists.

COMMENT ON THE NEW RULE

CASES

The original proposal of the Committee was to modify Bayotas. The

proposal was for the Court to continue in the same proceedings vith the
other civil actions that were deemed impliedly instituted vith the
criminal, despite the death of the accused. Since, however, he Revised
Rules on Criminal Procedure limited the civil liability leemed instituted
with the criminal action to the civil liability aris-ng from the offense,

a.
An Action for Nullity of a Deed of Sale Based on the Ground
that It is a Forgery and is Spurious is Prejudicial to a Criminal Action for
Estafa based on the Execution of said Sale

e.
A civil case for Annulment of Deed of Sale not prejudicial
to Criminal Case for Estafa Arising from Issuance of Rubber Check."

For a civil case to be considered prejudicial to a criminal action as to

cause the suspension of the criminal action pending the determination

At the time the acts complained of in CR No. 1423-1 were committed,

the deed of sale sought to be later annulled in CV No. 8769 was binding

Thus, the existence of a prejudicial question in a civil case is alleged in

the criminal case to cause the suspension of the latter pending final
determination of the former.

The issues in the civil case for accounting and recovery of sums of
money are not determinative of the innocence or guilt of the petitioner
in the prosecution of the seventy-five (75) counts of estafa.
* * * the only question to be resolved in the criminal cases for estafa is
whether or not the petitioner's acts of receiving and collecting monies
from the customers in payment for goods purchased, and failing to
immediately account for and deliver the said collections having
deposited them in his own personal bank accounts constitute estafa
under Article 315(l-b) of the Revised Penal Code.
* * * a finding in the civil case for accounting and recovery of a sum of
money is not juris et de jure determinative of the innocence of the
petitioner in the subsequent seventy-five (75) criminal cases of estafa
filed against him.

upon the parties thereto, including the petitioners.

The two (2) essential elements for a prejudicial question to exist are:
(a)
the civil action involves an issue similar or intimately related
to the issue raised in the criminal action; and
(b)
the resolution of such issue in the civil action determines
whether or not the criminal action may proceed.
As correctly observed by the appellate court, the issue in CR No. 1423-1
is whether or not the petitioners could be found guilty under Batas
Pambansa Big. 22 or under Article 315, No. 2(d) of the Revised Penal
Code.
More specifically, what private respondents complained of in CR No.
1423-1 is that the Checks issued by petitioners in their favor were
dishonored for lack of funds upon due presentment to the drawee bank.
Undeniably, at the time of said dishonor, petitioners' obligation to pay
private respondents pursuant to the deed of sale, continued to subsist.
And because petitioners' checks were dishonored for lack of funds,
petitioners are answerable under the law for the consequences of their
said acts.
And even if CV No. 8769 were to be finally adjudged to the effect that
the said deed of sale should be annulled, such declaration would be of
no material importance in the determination of the guilt or innocence of
petitioners-accused in CR No. 1423-1.
A Civil Case for the Collection of a Sum of Money Allegedly Embezzled is
not a Prejudicial Question to the Criminal Action arising from the same
Acts of Embezzlement
Thus, as teller authorized to receive payments of electric bills from the
electric cooperative's customers, Godofreda allegedly embezzled to her
own use money collected from different consumers.
When she refused to pay the amount defrauded, the cooperative sued
her for damages. Later, at the instance of the cooperative, several
informations for estafa were filed against her before the municipal court.
After pleading not guilty to the estafa charges, Godofreda moved to
suspend the proceedings in the criminal case on the ground that the
collection suit is a prejudicial question.
HELD:

The reason is that in said cases the procedure in a civil proceeding and
not of the criminal case is more fitted to decide, as for example, the
issue of validity or nullity of the marriage.

d)
Donato v. Luna Leonilo was charged with bigamy in the
Court of First Instance.

But in all such cases the prejudicial civil question refers to a dispute of
purely civil character but connected in such manner to the crime on
which the criminal case is based and is determinative of the guilt or
innocence of the accused.

The information was based on the complaint of Paz. Before Leonilo could
be arraigned, Paz filed with the Domestic Relations Court a civil action
for decla-ration of nullity of her marriage with Leonilo, contracted in
1978.

A civil action filed by the husband involving the nullity of a second

marriage is of prejudicial character and should be resolved before the
criminal case for bigamy.

She alleged that she consented to entering into the marriage, since
she had no previous knowledge that Leonilo was already married to
Rosalinda.

In such a case, the prejudicial civil question refers to a dispute of purely

civil character but connected in such manner to the crime on which
the criminal case is based and is determinative of the guilt or innocence
of the accused.

Donato interposed the defense that his second marriage was void since
it was solemnized without a marriage license and that force was
employed by Paz to get Leonilo's consent to the marriage.

The rule does not, however, apply where the complaint for annulment
was filed by the wife. Thus:
"a)
The filing, while the bigamy case is pending, of a civil action
by the woman in the second marriage for its annulment by reason
offeree and intimidation upon her by the man, is not a bar or defense to
the criminal action.
The civil action does not decide that he entered the marriage against his
will and consent, because the complaint therein does not allege that
he was the victim of force and intimidation in the second marriage.
It was he who used the force or intimidation and he may not use his own
malfeasance to defeat the action based on his criminal act."

The issue in the criminal case is whether her failure to account for her
collections as a teller constitutes estafa under Article 315 of the
Revised Penal Code.
A finding in the civil case for or against Godofreda is not juris et dejure
determinative of her innocence or guilt in the estafa cases.
B. MOREOVER ARTICLE 33 OF THE CIVIL CODE EXPLICITLY STATES THAT
IN CASE OF DEFAMATION, FRAUD AND PHYSICAL INJURIES A CIVIL
ACTION FOR DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM THE
CRIMINAL ACTION, MAY BE BROUGHT BY THE INJURED PARTY.
Such civil action shall proceed independently of the criminal
prosecution and shall require only a preponderance of evidence.
c. Article 33 manifests that as between the civil and criminal cases
arising from the same fraudulent act, the doctrine of the prejudicial
question cannot be invoked as both cases may proceed independently
of each other, i.e., in the same way that the civil suit can be tried, so
must the criminal prosecution run its course.
When Action for Annulment of Marriage Prejudicial to Bigamy Case
a.
A civil action involving the nullity of a second marriage is of
prejudicial character and should be resolved before the criminal case for
bigamy.
Likewise, a civil action involving title to property should first be decided
before a criminal action for damages to said property.

Before the second marriage was solemnized, Leonilo and Paz had lived
together as husband and wife, without the benefit of wedlock for at
least five years, for which reason, the requisite marriage license was
dispensed with pursuant to Article 76 of the New Civil Code.
Before the criminal case could be tried, Leonilo moved to suspend the
proceedings on the ground that the annulment case raises a prejudicial
question, which must be determined before the criminal case can
proceed.
The trial court denied the motion to suspend the proceedings, citing
Landicho v. Relova.
The Supreme Court sustained the trial judge.

b.
So also is an annulment of marriage filed by the first wife
not prejudicial to bigamy.

The issue before the Domestic Relations Court touching upon the nullity
of the sec-ond marriage is not determinative of Leonilo's guilt or
innocence in the crime of bigamy.

c.
In Landicho v. Hon. Reloua, the first wife charged the
accused with Bigamy for contracting a second marriage without first
dissolving their marriage.

Furthermore, it was Paz, Leonilo's second wife, who filed the complaint
for annulment of the Second marriage on the ground that her consent
was obtained through deceit.

The second wife, likewise, filed an annulment of her marriage with the
accused on the ground offeree, threats, and intimidation allegedly
employed by accused and because of its allegedly bigamous character.

Leonilo cannot apply the rule on prejudicial question since a case for
annulment of marriage can be considered a prejudicial question to the
bigamy case against the accused only if it is proved that Leonilo's
consent to such marriage was obtained by means of duress in order to
establish that his act in the subsequent marriage was an involuntary
one and as such, the same cannot be the basis for conviction.

Accused filed a third party complaint against the first wife praying that
his first marriage be declared null and void on the ground that his
consent to the first marriage was obtained by means of threats, force,
and intimidation, and moved for the suspension of the bigamy case
pending decision on the validity of the two marriages.

a. No prejudicial question exists.

The issue in the civil action is the cooperative's right to recover from
Godofreda the amount allegedly embezzled by the latter.

2)

The Court held that the mere fact that there are actions to annul the
marriage entered into by the accused in a bigamy case does not mean
that "prejudicial questions" are automatically raised in civil actions to
warrant the suspension of the criminal case.
In order that the case of annulment of marriage be considered a
prejudicial question to the bigamy case against the accused, it must be
shown that the accused's consent to such marriage must be the one
that was obtained by means of duress, force and intimidation to show
that his act in the second marriage must be involuntary and cannot be
the basis for his conviction for the crime of bigamy.

Obviously, Leonilo merely raised the issue of prejudicial question to

evade the prosecution of the criminal case. Prior to Leonilo's second
marriage, he had been living with Paz as husband and wife for more
than five years without the benefit of marriage.
Thus, Leonilo's averments that his consent was obtained by Paz through
force and undue influence in entering a subsequent marriage is belied
by the fact that both he and Paz executed an affidavit which stated that
they had lived together as husband and wife without benefit of
marriage for five years, one month and one day until their marital union
was formally ratified by the second marriage and that it was Paz who
eventually filed the civil action for nullity.
An Action for declaration of nullity of marriage on ground of
psychological incapacity is not a prejudicial question

The situation in the second case is markedly different.

1)
At the time petitioner was indicted for bigamy, the fact that two
marriage ceremonies have been contracted appeared to be
indisputable.
And it was the second spouse, not the accused who filed the action for
nullity on the ground of force, threats and intimidation, x x x
Assuming that the first marriage was null and void on the ground
alleged by the accused, that fact would not be material to the outcome
of the criminal case.
Parties to the marriage should not be per-mitted to judge for themselves
its nullity, for the same must be submitted to the judgment of the
competent courts and only when the nullity the marriage is so declared
can be held as void, and so long as there is no such declaration the
presumption is that the marriage exists.
Therefore, he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy.

to criminal prosecution for bigamy

A declaration of the nullity of the second marriage on the ground of

psychological incapacity is of absolutely no moment insofar as the
State's penal laws are concerned.
As a second or subsequent marriage contracted during the
subsistence of petitioner's valid marriage to Villareyes, petitioner's
second marriage to Ancajas would be null and void ab initio
completely regardless of petitioner's psychological capacity or
incapacity.
Since a marriage contracted during the subsistence of a valid marriage
is automatically void, the nullity of this second marriage is not per se an
argument for the avoidance of criminal liability for bigamy.
Pertinently, Article 349 of the Revised Penal Code criminalizes "any
person who shall contract a second or subsequent marriage before the
former marriage has been legally dissolved, or before the absent spouse
has been declared presumptively dead by means of a judgment
rendered in the proper proceedings."
A plain reading of the law, therefore, would indicate that the provision
penalizes the mere act of contracting a second or a subsequent
marriage during the subsistence of a valid marriage.
Thus, as soon as the second marriage was celebrated during the
subsistence of the valid first marriage, the crime of bigamy had already
been consummated.
There is no cogent reason for distinguish-ing between a subsequent
marriage that is null and void purely because it is a second or
subsequent marriage, and a subsequent marriage that is null and void
on the ground of psychological incapacity, at least insofar as criminal
liability for bigamy is concerned.
The State's penal laws protecting the institution of marriage are in
recognition of the sacrosanct character of this special contract
between spouses, and punish an individual's deliberate disregard of the
permanent character of the special bond between spouses, which
petitioner has undoubtedly done.
Although the judicial declaration of the nullity of a marriage on
ground of psychological incapacity retroacts to the date of
celebration of the marriage insofar as the vinculum between
spouses is concerned, it is significant to note that said marriage is
without legal effects.

the
the
the
not

Among these effects is that children con-ceived or born before the

judgment of absolute nullity of the marriage shall be considered
legitimate.
There is therefore a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal consequences.
Among these legal consequences is incurring criminal liability for
bigamy.
To hold otherwise would render the State's penal laws on bigamy
completely nugatory, and allow individuals to deliberately ensure that
each marital contract be flawed in some manner, and to thus escape
the consequences of contracting multiple marriages, while beguiling
throngs of hapless women with the promise of futurity and commitment.

to criminal prosecution for concubinage

Under Article 40 of the Family Code: "The absolute nullity of a previous

marriage maybe invoked for purposes of remarriage on the basis solely
of a final judgment declaring such marriage void.

There is no prejudicial question where one case is administrative and

the other is civil
It has been held that one thing is administrative.

So that in a case for concubinage, the accused need not present a final
judgment declaring his marriage void for he can adduce evidence in the
criminal case of the nullity of his marriage other than proof of a final
judgment declaring his marriage void.

Quite another is the criminal liability.

The Court, however, hastened to add that even if his marriage is void
from the beginning the subsequent pronouncement that his marriage is
void from the beginning is not a defense, citing Landicho u. Relova,
cited in Donate v. Luna," holding that "so long as there is no such
declaration (of nullity) the presumption is that the marriage exists.

The dismissal of the administrative case does not necessarily bar the
filing of a criminal prosecution for the same or similar acts which were
the subject of the administrative complaint.

Therefore, he who contracts a second marriage before the judicial

declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy.

The determination of the administrative liability for falsification of public

documents is in no way conclusive of his lack of criminal liability.

A pending civil case may, however, be considered to be in the nature of

a prejudicial question to an administrative case.
In proper cases, a pending administrative case may also be considered
in the nature of a prejudicial question to a civil case.
Thus, an administrative case between parties involving a parcel of

land subject matter of an ejectment case is a prejudicial question which

would operate as a bar to said ejectment case.

bound to file the corresponding information.

The Purposes of a Preliminary Investigation or a previous Inquiry of
Some Kind are

Thus, it has been held that the question of ownership which is pending
in a civil case a prejudicial question justifying suspension of proceedings
in the criminal case for violation of the Anti-Squatting Law.

a.
for the investigating prosecutor to determine if a crime has
been committed.

OTHER CASES
b.
to protect the accused from the inconvenience, expense and
burden of defending himself in a formal trial unless the reasonable
probability of his guilt shall have been first ascertained in a fairly
summary proceeding by a competent officer.

An action to cancel copyright is not prejudicial to criminal prosecution

for infringement of copyright.
A civil action of replevin is not prejudicial to theft.

c.
to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public
accusation of a crime, from the trouble, expenses and anxiety of a
public trial; and

Where the issue before the Court of Appeals is the authenticity of a

motion to withdraw which at the same time is the object of a
falsification charged pending in CFI, there is a prejudicial question
involved in the civil case which justifies the suspension of the criminal
case.

d.
to protect the state from having to conduct useless and
expensive trials.

Pisalban u. Tesoro, a criminal case for falsification of an affidavit

presented in a cadastral case should not be suspended to await
termination of civil case.

Scope of Preliminary Investigation

If at all, it should be the latter that should be suspended.

Preliminary investigation is merely inquisitorial, and it is often the only

means of discovering the persons who may be reasonably charged with
a crime, to enable the fiscal to prepare his complaint or information.

A civil action instituted to resolve whether the designations of certain

persons as sectoral representatives were in accordance with law
constitutes a prejudicial question vis-a-vis a criminal case for violation of
the anti-graft law premised on the accused's partiality and evident bad
faith in not paying the former's salaries and per diem as sectoral
representatives.

It is not a trial of the case on the merits and has no purpose except that
of determining whether a crime has been committed and whether there
is probable cause to believe that the accused is guilty thereof, and it
does not place the person against whom it is taken in jeopardy.
Nature of Right to Preliminary Investigation

There is no prejudicial question where the outcome of the civil case is

not in any way determinative of the guilt or innocence of the respondent
in the criminal cases.

Neither the 1935 nor the 1973 (or 1987) Constitution requires the
holding of a preliminary investigation.
It is a settled doctrine that the right thereto is of statutory character and
may be invoked only when specifically created by statute.
It is not a fundamental right and is not among the rights guaranteed to
him in the Bill of Rights.
It may be waived expressly or by silence.
As stated in Marcos u. Cruz, "the preliminary investigation in criminal
cases is not a creation of the Constitution; its origin is statutory and it
exists and the right thereto can be invoked when so established and
granted by law.
It is so specifically granted by procedural law.
If not waived the absence thereof may amount to a denial of due
process.
RULE 112
PRELIMINARY INVESTIGATION
SECTION 1.
Preliminary Investigation Defined; When Required
Formerly, the right to a preliminary investigation refers only to offenses
cognizable by the Regional Trial Court.

Thus, the right of accused (to a preliminary investigation when granted)

is a "substantial one."
Its denial over his opposition is a "prejudicial error in that it subjects the
accused to the loss of life, liberty or property without due process of
law."
While that right is statutory rather than constitutional in its fundament,
since it has in fact established by statute, it is a component part of
due process in criminal justice.

In view, however, of the expanded jurisdiction of the Municipal Trial

Court under R.A. No. 7691, jurisdiction over certain offenses which
before falls under the exclusive jurisdiction of the Regional Trial Court
were vested in the Municipal Trial Court and accordingly, under the
former rule were no longer entitled to preliminary investigation.

The right to have a preliminary investigation conducted before being

bound over to trial for a criminal offense and, hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical
right; it is a substantive right.

The present rule includes among offenses entitled to preliminary

investigation those punishable by at least four (4) years, two (2) months
and one (1) day, even if the same is cognizable by the Municipal Trial
Court.

The accused in a criminal trial is inevitably exposed to prolonged

anxiety, aggravation, humiliation, not to speak of expense; the right to
an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right.

Purpose of Preliminary Investigation

To deny petitioner's claim to a preliminary investigation would be to

deprive him of the full measure of his right to due process.

As provided for in the foregoing section, the preliminary investigation

should determine whether there is a sufficient ground to engender a
well-grounded belief that a crime has been committed and that the
respondent is probably guilty thereof, and should be held for trial.
And if the evidence so warrants, the investigating prosecutor is duty

While a preliminary investigation is not an occasion for a full and

exhaustive display of the parties evidence, being merely an inquiry to
determine whether or not there is sufficient ground to engender a
founded belief that a crime has been committed and that the
respondent is probably guilty thereof, the right to such preliminary

investigation is still an indispensable element of our criminal justice

system that may not be treated lightly, let alone ignored.

The right to a preliminary investigation may be waived by failure to

invoke the right prior to or at least at the time of their plea.

The right of the accused not to be brought to trial except when

remanded therefor as a result of a preliminary examination before a
committing magistrate, has been held as a substantial one.

The rule was restated in People v. Monteverde, where the Supreme

Court stated:

Its denial over the objections of the accused is prejudicial error in that it
subjects the accused to the loss of life, liberty or property without due
process of law.

"A PRELIMINARY INVESTIGATION IS MANDATORY AND A CERTIFICATION

THAT SUCH INVESTIGATION WAS HELD IS REQUIRED, STILL THIS RULE
DOES NOT APPLY IF THE ISSUE IS RAISED ONLY AFTER CONVICTION.

If it is not waived may amount to a denial of due process.

After a plea of not guilty to the information, an accused is deemed to

have foregone the right of preliminary investigation and to have
abandoned the right to question any irregularity that surrounds it."

As stated in a case, the Solicitor General's argument that the right to a

preliminary investigation may be waived and was in fact waived by the
petitioner, impliedly admits that the right exists.
Since the right belongs to the accused, he alone may waive its denial.

In People v. Lambino, Lambino, before commencement of trial,

demanded his right to preliminary investigation. His motion for
preliminary investigation was denied by the trial court which, in due
course of time, convicted Lambino.

If he demands it, the State may not withhold it.

The purpose is, however, satisfied if the accused is given all the
opportunity to submit countervailing evidence.
Probable cause merely implies probability of guilt and should be
determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his
innocence.
Thus, the lack of authentication of the document presented during the
preliminary investigation does not impair the validity of the
investigation.
The only purpose of a preliminary investigation is "to determine whether
a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof."
The Court have maintained a consistent policy of non-interference in the
determination by the Ombudsman of the existence of probable cause,
provided there is no grave abuse in the exercise of its discretion.
While it may be true that the documents were unauthenticated, this is a
matter of defense best passed upon after a full-blown trial.
As ruled in Webb v. De Lean, "the validity and the merits of a party's
defense or accusation as well as the admissibility of testimonies and
evidences are better ventilated during the trial stage than in the
preliminary investigation level."
Effect of Absence of Preliminary Investigation
As the absence of a preliminary investigation is not a ground to quash
the complaint or information, the proceedings upon such information in
the Sandiganbayan should be held in abeyance and the case should be
remanded to the office of the Ombudsman for him or the Special
Prosecutor to conduct a preliminary investigation.
Thus, the absence of preliminary investigation does not affect the
court's jurisdiction over the case, but merely to the regularity of the
proceedings.
Nor do they impair the validity of the information or otherwise render it
defective; but, if there were no preliminary investigation and the
defendants, before entering their plea, invite the attention of the court
to their absence, the court, instead of dismissing the information,
should conduct such investigation, or order the fiscal to conduct it.

On appeal, the Supreme Couri held that the trial court did not err in
denying Lambino's motion for preliminary investigation because said
motion was filed after he had entered a plea of not guilty and because
he took no steps to bring the matter to a higher court to stop the trial of
the case.
The right to a preliminary investigation shall be deemed waived for
failure to invoke it during arraignment in People u. Valencia People v.
Hubilo, People v. De Asis, or by failing to go to Appellate Court on
certiorari to question denial.
The right to a preliminary investigation may not be raised for the first
time on appeal.
Consenting to be arraigned and entering a plea of not guilty without
invoking the right to preliminary investigation is a waiver.
It should be invoked prior to or at least, at the time of the plea.
It is also deemed waived by going to trial without previously claiming
that they did not have the benefit of preliminary investigation.
It may be waived expressly or by silence.
No Waiver When Properly Invoked
A waiver, whether express or implied, must be made in clear and
unequivocal manner.
Mere failure of petitioner and his counsel to appear before the City
Prosecutor cannot be construed as a waiver of his right to preliminary
investigation, where petitioner has been vigorously invoking his right to
a regular preliminary investigation since the start of the proceedings
before the City Prosecutor.
The right is not waived even if the accused had filed an application for
bail and arraigned over his objections and trial on the merits already
began with four witnesses having testified where accused had from the
beginning demanded that a preliminary investigation be conducted and
forthwith brought the case on certiorari to the Supreme Court.
Presumption of Regularity
The accused who alleges lack of preliminary investigation must prove
such allegation convincingly.
When it does not appear from the record that a preliminary investigation
was not granted, it must be presumed that the proceedings in the trial
court were in accordance with law.

Complaint Is Amended

demanded by the accused.

The need to conduct a new preliminary investigation when the

defendant demands it and the allegations of the complaint have been
amended, has been more than once affirmed by the Supreme Court:

f.
If the crime originally charged is related to the amended
charge such that an inquiry into one would elicit substantially the same
facts that an inquiry into the other would reveal, a new pre-liminary
investigation is unnecessary.

"(a) xxx, the Court finds that since the information for alleged violation
of the Anti-Graft Law was filed without any previous notice to petitioners
and due preliminary investigation thereof, and despite the dismissal of
the original charge for falsification as being without any factual or legal
basis,' petitioners are entitled to a new preliminary investigation for the
graft charge, with all the rights to which they are entitled under section
1 of Republic Act No. 5180, approved September 8, 1967, as invoked by
them anew from respondent court, viz., the submittal of the testimonies
in affidavit form of the complainant and his witnesses duly sworn to
before the investigating fiscal, and the right of accused, through
counsel, to cross-examine them and to adduce evidence in their
defense.

OTHER CASES ON WHETHER

INVESTIGATION IS NEEDED

OR

NOT

ANOTHER

PRELIMINARY

a.
If after preliminary investigation, a case is filed in the Court
of First Instance which was dismissed, the Fiscal cannot file another
information charging a different offense based on the same preliminary
investigation.

The principle does not apply where the original information was not
dismissed.
b.
In Bandiala u. Court of First Instance of Misamis Occidental,
where the preliminary investigation was for robbery in band (with one of
the two accused waiving the second stage), the Court held that the
provincial fiscal could not file against the accused an information for the
graver crime of robbery with kidnapping, without giving the accused
"ample opportunity at full-blown preliminary investigation to
demonstrate that what the fiscal regards as 'kidnapping* in the legal
sense was merely an incident of, and is therefore absorbed in the crime
of robbery."
The Court noted once again that "(A) preliminary investigation, it must
be borne in mind, is a practical device created by statute and by
mandate of our Rules of Court, principally for the purpose of preventing
hasty, malicious and ill-advised prosecution," and pointedly emphasized
that "(T)he Rules of Court on the matter of preliminary investigation,
construed in their intregrated entirety, direct that, in the circumstances
here obtaining, the Fiscal, if he believes that he should raise the
category of the offense, must conduct a preliminary investigation anew
as to the entire charge.
Fundamental principles of fair play dictate this course of action.
The Fiscal is not allowed by the Rules of Court to wait in ambush; the
role of a Fiscal is not mainly to prosecute, but essentially to do justice to
every man and to assist the courts in dispensing that justice."
A new preliminary investigation is not, however, necessary after the
amendment of the information, where there has been no change in the
nature of the crime charged which is rebellion, and moreover, petitioner,
who was already in custody when the amended information was filed,
should have asked, but did not, for a re-investigation of said case
within the period of five days from the time he learned of the amended
information.
c.
Where the amendment to an information is
substantial, there is no need of another preliminary investigation.

COMPARE:

Effect of Lack of Certification

In Almeda v. Villaluz, the amendment as to habitual delinquency was not

considered substantial.

In Rolito Go v. Court of Appeals, despite the fact that trial on the merits
had began and the prosecution had already presented four witnesses,
the trial was ordered suspended and the accused allowed to be released
on bail pending the preliminary investigation.

Lack of certification by the fiscal that a preliminary investigation had

been conducted does not vitiate the information, as a preliminary
investigation is not an essential part of the information.

Right May be Waived

Cases on Right to a New Preliminary Investigation Where Allegation on

Another preliminary investigation must be undertaken and thereafter,

based on the evidence adduced, a new information should be filed.

Exception There is no right of preliminary investigation under Section

7, Rule 112 when a person is lawfully arrested unless there is waiver of
the provisions of Article 125 of the Revised Penal Code.
There is no waiver of the right to a preliminary investigation despite trial
and presentation of four (4) witnesses over the objection of the
accused.
There is a right to preliminary investigation where warrantless arrest is
not lawful.
Motion for Reinvestigation Addressed to Trial Judge

He must conduct another preliminary in-vestigation.

In the absence of evidence to the contrary, the Court will presume that
the fiscal or officer who conducted the requisite investigation did so in
accordance with law.

The absence of a certification is waived by the failure to allege it before

the plea.

h.
It is a fundamental principle that when on its face the
information is null and void for lack of authority to file the same, it
cannot be cured nor resurrected by an amendment.

Exception to Right of Preliminary Investigation

In line with the settled doctrine as restated in People v. Abejuela,
respondent court shall hold in abeyance all proceedings in the case
before it until after the outcome of such new preliminary investigation.

Moreover, the absence of a preliminary investigation will not justify

petitioner's release because such defect did not nullify the information
and the warrant of arrest against him.

The right to bail was emphasized in Tolentino v. Camano, Jr.

g.
In Gaspar v. Sandiganbayan, the Supreme Court pointed out
that there is no rule or law requiring the Tanodbayan to conduct another
preliminary investigation of a case under review by it.

not

d.
A new preliminary investigation is not called for where the
court orders the filing of correct information involving a cognate offense,
such as unfair competition to infringement of trademarks."
e.
Where only a formal amendment was involved such as
frustrated murder to consummated murder where death of the victim
supervened a preliminary investigation is unnecessary and cannot be

A motion for reinvestigation should, after the court had acquired

jurisdiction over the case, be addressed to the trial judge and to him
alone. Neither the Secretary of Justice, the State Prosecutor, nor the
Fiscal may interfere with the Judge's disposition of the case, much less
impose upon the court their opinion regarding the guilt or innocence of
the accused, for the court is the sole judge of that.
The private complainant cannot move for reinvestigation.
But he can appeal to the DOJ or the Ombudsman as the case maybe.
Caution by Court in Granting Reinvestigation
Courts are, however, called upon to exercise great restraint in granting
any reinvestigation with the consequent delay involved, since the
weighing and evaluation of such evidence in defense of the accused
against the State's evidence is best left to its judgment and its verdict
rather than to that of the prosecution.
To ferret out the truth, trial is to be preferred to a reinvestigation.
It cannot be denied that in the search for truth, a trial has distinct merits
over a reinvestigation.
A preliminary investigation or reinvestigation, unlike a trial, is summary
in nature.
The direct examination of witnesses is substituted by the complainant's
sworn statement and that of his witnesses, and by the counter-affidavit
of the respondent and his witnesses.
While the respondent may be present at the investigation, he has no
right to cross-examine the witnesses against him.
To ferret out the truth, therefore, a trial is to be preferred to a
reinvestigation.
Rather than delay the trial of private respondents waiting for the
conduct and outcome of a reinvestigation, it is best that respondent
Judge set the case for immediate trial
As a general rule, the practice of holding in abeyance a criminal case
already filed for reinvestigation of a case filed by the fiscal upon the
accused's motion to present evidence or newly discovered evidence
should be discouraged because it generates the impression that the
accused would be able to fix his case or that it would be easier for him
to manipulate and maneuver its dismissal in the fiscal's office.

SEC. 2.
Officers Authorized to Conduct Preliminary Investigations

and employees, not only those within the jurisdiction of the

Sandiganbayan, but those within the jurisdiction of the regular court as
well.

Under the B.P. Big. 129

SEC. 37. Preliminary Investigation. Judges of Metropolitan Trial Courts,
except those in the National Capital Region, of Municipal Trial Courts,
and Municipal Circuit Trial Courts shall have authority to conduct
preliminary investigation of crimes alleged to have been committed
within their respective territorial jurisdictions which are cognizable by
the Regional Trial Courts.
The preliminary investigation shall be conducted in accordance with the
procedure prescribed in Section 1, paragraphs (a), (b), (c), and (d) of
Presidential Decree No. 911;
Provided, however. That he shall forward the records of the case if after
the preliminary investigation the Judge finds a prima facie he shall
forward the records of the case to the Provincial/City Fiscal for the filing
of the corresponding information with the proper court.
No warrant of arrest shall be issued by the Judge in connection with any
criminal complaint filed with him for preliminary investigation, unless
after an examination in writing and under oath or affirmation of the
complaint and his witnesses, he finds that a probable cause exists.
Any warrant of arrest issued in accordance herewith may be served
anywhere in the Philippines.

The authority of the Ombudsman to investigate and prosecute offenses

committed by public officers and employees is founded in Section 15
and Section 11 of R.A. No. 6770.
Section 15 vests the Ombudsman with the power to investigate and
prosecute any act or omission of any public officer or employee, office
or agency, when sue act or omission appears to be illegal, unjust,
improper or inefficient
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified.
It pertains to any act or omission of any public officer or employee when
such act or omission appears to be illegal, unjust, improper or
inefficient.
The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts.
It has been held that the clause "any illegal act or omission of any
public official" is broad enough to embrace any crime committed by a
public officer or employee.

The provisions ofP.D. No. 911 had been incorporated in Section 3.

The reference made by R.A. No. 6770 to cases cognizable by the

Sandiganbayan, particularly in Section 15(1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and
Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining
the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.

A.M. No. 05-8-26-SC (Effective October 3, 2005) removed the authority

of first level judges to conduct preliminary investigations.

Section 15 of R.A. No. 6770 gives the Ombudsman primary jurisdiction

over cases cognizable by the Sandiganbayan.

Upon effectivity of the amendments, first level courts shall no longer

accept new cases for preliminary investigation, which fall under the
exclusive jurisdiction of other levels.

The law defines such primary jurisdiction as authorizing the

Ombudsman "to take over, at any stage, from any investigatory agency
of the govern-ment, the investigation of such cases."

Other Persons Authorized to Conduct Preliminary Investigation

The grant of this authority does not necessarily imply the exclusion from
its jurisdiction of cases involving public officers and employees
cognizable by other courts.

The Supreme Court has expanded the offenses offense where the
penalty prescribed by law is at least four (4) years, two (2) months and
one (1) day without regard to the fine even if it is cognizable by
municipal trial courts.

a.
The COMELEC is vested with power and authority to
conduct preliminary investigations of all election offenses punishable
under the Omnibus Election Code and to prosecute offenses in court.
The COMELEC may, however, deputize other prosecuting arms of
government to conduct the investigation and prosecute the offense in
Court
b.
The 1987 Constitution mandates the COMELEC not only to
investigate but also to prosecute cases of violation of election laws
This means that the COMELEC is empowered to conduct preliminary
investigation in cases involving, election offenses for the purpose of
helping the Judge determine probable cause and for filing an information
in court. This power is exclusive with COMELEC, whether it involves a
private individual or public officer or employee, and in the later
instance, irrespective of whether the offense is committed in relation to
his official duties or not.

The exercise by the Ombudsman of his primary jurisdiction over cases

cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses
committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature to
the Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.

As a new Office of the Ombudsman was established, the then existing

Tanodbayan became the Office of the Special Prosecutor which
continued to function and exercise its powers provided by law, except
those conferred on the Office of the Ombudsman created under the
1987 Constitution.

to the provisions thereof of which are not exactly in conformity with

Section 3, Rule 112 of the Rules of Court, such as, those on the:

Distinction between Office of the Ombudsman and Office of the Special

Prosecutor

(2)
prohibition against a motion to dismiss, motion for a bill of
particulars, and second motion for reconsideration or reinvestigation;

a.
The jurisdiction of the office of the Ombudsman should not
be equated with the limited authority of the Special prosecutor under
Section 11 of R.A. No. 6770 which was established after the creation of
the Office of the Special Prosecutor.

(3)

manner of conducting clarificatory questioning; and the

(4)

form of affidavits and counter-affidavits.

The office of the special prosecutor is merely a component of the Office

of the Ombudsman and may only act under the supervision and
control and upon authority of the Ombudsman.
Its power to conduct preliminary investigation and to prosecute is
limited to criminal cases within the jurisdiction of the Sandiganbayan.

Hence, the Provincial Prosecutor, as such assumes no role ii the

prosecution of election offenses.
If the Fiscal or Prosecutor file; an information charging an election
offense or prosecutes a violation of election law, it is because he has
been deputized by the COMELEC.

Or to prosecute cases outside the Sandi-ganbayan's jurisdiction in

accordance with section ll(4c) of R.A. No. 6770, viz., "to perform such
other duties assigned to it by the Ombudsman."

The primary jurisdiction, refers to cases in relation to public office of

accused [and punishable for more than six years or a fine of P6,000.00.]

c.
While the Ombudsman's investigatory and prose-cutory
power is plenary and unqualified, the authority of the Special
Prosecutor is limited. While the Ombudsdman may delegate his
investigatory function, including the power to conduct administrative
investigation, to the Special Prosecutor, the latter has no power to
preventively suspend which is only granted to the Ombudsman and the
Deputy Ombudsman.
If the Ombudsman delegates his authority to conduct administrative
investigation to the Special Prosecutor and the latter finds that
preventive suspension is warranted, the Special Prosecutor may
recommend to the ombudsman to place the said public officer or
employee under preventive suspension."
c-1
Moreover, unless authorizing by the Ombudsman the special
prosecutor is not authorized to file an information.
All that was delegated to the special prosecutor by Office Order No. 4005 was the discretional authority to review and modify the deputy
ombudsman-authorized information, but even this is subject to the
condition that such modification must be "without departing from, or
varying in any way, the contents of the basic resolution, order or
decision."
The doctrine was made operative to cases filed upon the finality of the
decision.
d.
Deloso v. Domingo upheld the primary and concurrent
jurisdiction of Ombudsman to investigate cases cognizable by the
Sandiganbayan under section 15(i) of R.A. No. 6770 to all kinds of
malfeasance by any officer or employee during his tenure of office.

A prosecutor has a shared authority to investigate and prosecute

ombudsman cases not cognizable by the Sandiganbayan.

Preliminary Investigation By Ombudsman

With respect to cases cognizable by the Sandiganbayan, the

ombudsman has primary authority to investigate and exclusive
authority to file and prosecute Sandiganbayan cases

Section 18 of R.A. No. 6770 allows the Office of the Ombudsman to

promulgate its rules of procedure for the effective exercise or
performance of its powers, functions, and duties.

Section 5, Rule II of Administrative No. 8 of the Office of the

Ombudsman provides that: "Cases falling under the jurisdiction of the
Office of the Ombudsman which are. cognizable by municipal trial
courts, including those subject to the Rule on Summary Procedure may
only be filed in court by Information approved by the Ombudsman, or
the proper Deputy Ombudsman in all other cases."

The rules of procedure shall include a provision whereby the Rules of

Court are made suppletory.

He does not do so under the sole authority of his office.

Preliminary Investigation of Sandiganbayan Case! a. Office of the
Ombudsman
The Ombudsman is clothed with authority to conduct preliminary
investigation and to prosecute all criminal cases involving public officers

Under Republic Act No. 6770, the power to investigate and prosecute
cases which are cognizable by the Sandiganbayan is now lodged with
the Ombudsman.
This includes Ombudsman cases which are cognizable by regular courts.
The Office of the Special Prosecutor (The Tanodbayan)

The changes in such procedure effected by Administrative Order No. 07

are designed merely to expedite the process of preliminary investigation
and to conform with the provisions of Republic Act No. 6770.
The officer who review a case on appeal should not be the same person
whose decision is under review.

In other words, it is the offender that matters.

As long as the offense is an election offense, jurisdiction over the same
rests exclusively with the COMELEC in view of its all-embracing power
over the conduct of elections.

It is to be understood, however, that the preliminary investigation

Ombudsman case in accordance with Rule 112 of the Rules of Court is
perfectly valid.

b.
The Office of the Special Prosecutor (the Tanod Bayan), was
made an organic component of the Office of the Ombudsman, who
under the supervision and control and upon authority of the
Ombudsman may conduct preliminary investigation and prosecute
criminal cases within the jurisdiction of the Sandiganbayan.

Power to Investigate, to file and to prosecute, distinguished

A distinction should be made between the power to investigate, to file
and to prosecute ombudsman cases.

(1)
issuance of an order in lieu of subpoena for the filing of
counter-affidavits;

Accordingly, the Office of the Ombudsman promulgated Administrative

Order No. 07 known as the RULES OF PROCEDURE OF THE OFFICE OF
THE OMBUDSMAN (Appendix K) and Administrative Order No. 08
CLARIFYING AND MODIFYING CERTAIN RULES OF PROCEDURE OF THE
OMBUDSMAN
The order clarified that: "The preliminary investigation of an
Ombudsman case does not have to be conducted strictly in accordance
with Section 3, Rule 112 of the Rules of Court.
Said rule shall be applied as modified by Rule II of Administrative Order
No. 07 of the Office of the Ombudsman. Particular attention is directed

Primary Jurisdiction Refers To Cases in Relation To Public Office of

Accused

The Ombudsman's primary power to investigate is dependent on the

cases cognizable by the Sandiganbayan.
Thus, the public prosecutor may conduct preliminary investigation of
Mayor's criminal acts not in relation to his public office.
For Ombudsman's authority to overrule investigatory prosecutor, see
Cruz v. People, and Sec. 4, Rule 112.
Any officer authorized to conduct a preliminary investigation who is
investigating an offense or felony committed by public officer must
determine if the crime was committed by the respondent in relation to
his office.
If it was, the investigating officer shall forthwith inform the office of
the Ombudsman who may either:
(a)
take over the investigation of the case pursuant to Section
15(1) of R.A. No. 6770 or
(b)
deputize a prosecutor to act as special investigator or
prosecutor to assist in the investigation and prosecution of the case
pursuant to section 31 thereof.
In light of the broad powers conferred by law on the Ombudsman and
the Special Prosecutor, it is completely inconsequential that the
complaint by which a criminal case was instituted charging a crime
cognizable by the Sandiganbayan might have been originally filed
with the Iloilo Prosecution Office, or the preliminary investigation
therein conducted.
Power Includes all Criminal Cases Involving Public Officers and
Employees
In its Resolution On March 20, 2001 The Court in George Uy v
Sandiganbayan, which was reiterated in Office of the Ombudsman v.
Breua, categorically stated that: "the Ombudsman is clothed with
authority to conduct preliminary investigation and to prosecute all
criminal cases involving public officers and employees, not only those
within the jurisdiction of the Sandiganbayan, but those within the
jurisdiction of the regular courts as well."
Elaborating on its n ruling nullifying its earlier decision, writes:
THE AUTHORITY OF THE OMBUDSMAN TO INVESTIGATE AND
PROSECUTE OFFENSES COMMITTED BY PUBLIC OFFICERS AND
EMPLOYEES IS FOUNDED IN SECTION 15 AND SECTION 11 OF R.A. NO.
6770. SECTION 15 VESTS THE OMBUDSMAN WITH THE POWER TO
INVESTIGATE AND PROSECUTE ANY ACT OR OMISSION OF ANY PUBLIC
OFFICER OR EMPLOYEE, OFFICE OR AGENCY, WHEN SUCH ACT OR
OMISSION APPEARS TO BE ILLEGAL, UNJUST, IMPROPER OR
INEFFICIENT, THUS:
"Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman

shall have the following powers, functions and duties:

2, dated March 12, 1986, as may be warranted by its findings.

(1) Investigate and prosecute on its own or on complaint by any

person, any act or omission of any public officer or employee, office or
agency, when such act or omission appears to be illegal, unjust,
improper or inefficient.
It has primary jurisdiction over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigatory agency of Government, the
investigation of such cases
Section 11 grants the Office of the Special Prosecutor, an organic
component of the Office of the Ombudsman... the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan. It states:
"Sec. 11. Structural Organization. xxx xxx

xxx

xxx

(4) The Office of the Special Prosecutor shall, under the supervision
and control and upon authority of the Ombudsman, have the following
powers:
(a) To conduct preliminary investigation and prosecute criminal cases
within the jurisdiction of the Sandiganbayan;
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified.
It pertains to any act or omission of any public officer or employee when
such act or omission appears to be illegal, unjust, improper or
inefficient.
The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts.
It has been held that the clause "any illegal act or omission of any
public official" is broad enough to embrace any crime committed by a
public officer or employee.
The reference made by R.A. No. 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and
Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining
the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of R.A. No. 6770 gives the Ombudsman primary jurisdiction
over cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases."
The grant of this authority does not necessarily imply the exclusion from
its jurisdiction of cases involving public officers and employees
cognizable by other courts.
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under
Section 11 of R.A. No. 6770 [whose] power to conduct preliminary
investigation and to prosecute is limited to criminal cases within the
jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these types of cases.

The Presidential Commission on Good Government shall file all such

cases, whether civil or criminal, with the Sandiganbayan, which shall
have exclusive and original jurisdiction thereof.
Upon the other hand, civil suits for restitution, reparation of damages, or
indemnification for consequential damages, forfeiture proceedings
provided for under Republic Act No. 1379, or any other civil actions
under the Civil Code or other existing laws, in connection with
Executive Order No. 2, dated March 12, 1986, may be filed separately
from and proceed independently of any criminal proceed-ings and may
be proved by preponderance of evidence.
From the foregoing provisions of law, particularly Sections 2(b) and 3(a)
of Executive Order No. 1 and Sections 1 and 2 of Executive Order No.
14, the PCGG has the power to investigate and prosecute such ill-gotten
wealth cases of the former President, his relatives and associates, and
graft and corrupt practices cases that may be assigned by the President
to the PCGG to be filed with the Sandiganbayan.
The authority to investigate extended to the PCGG includes the
authority to conduct a preliminary investigation.

After reviewing the legislative history of the Sandiganbayan and the

Office of the Ombudsman, the Court declared that
"UNDER R.A. NO. 8249, THE SANDIGANBAYAN IS VESTED WITH
EXCLUSIVE ORIGINAL JURISDICTION IN ALL CASES INVOLVING
VIOLATIONS OF R.A. NO. 3019, R.A. NO. 1379, AND CHAPTER II, SEC. 2,
TITLE VII, BOOK II OF THE REVISED PENAL CODE, WHERE ONE OR MORE
OF THE ACCUSED ARE OFFICIALS OCCUPYING THE FOLLOWING
POSITIONS WHETHER IN A PERMANENT, ACTING OR INTERIM CAPACITY,
AT THE TIME OF THE COMMISSION OF THE OFFENSE:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of the
Compensation and Position Classification Act of 989 (R.A. No. 6758),
specifically including:
(a)
Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other city department heads;
(b)
City mayor, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;

The ruling was further clarified in Cruz, Jr. v. Sandiganbayan:

THE COURT THEN HELD THAT SECTIONS 2(A) AND 3, OF EXECUTIVE
ORDER NO. 1, IN RELATION WITH SECTIONS 1, 2 AND 3 OF EXECUTIVE
ORDER NO. 14, SHOWS THAT WHAT THE AUTHORITY OF THE
RESPONDENT PCGG TO INVESTIGATE AND PROSECUTE COVERS ARE:
a.
The investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No. 1379,
accumulated by former President Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of all
business enterprises and entities owned or controlled by them, during
his administration, directly or through his nominees, by taking undue
advantage of their public office and/or using their powers, authority and
influence, connections or relationship; and
b.
The investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as contemplated under
Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act
not otherwise falling under the foregoing categories, require a previous
authority of the President for the PCGG to investigate and prosecute the
same in accordance with Section 2(b) of Executive Order No. 1.
Otherwise, jurisdiction over such cases is vested in the Ombudsman and
other duly authorized investigating agencies as the provincial and city
prosecutors, their assistants, the Chief State Prosecutor and his
assistants, and the state prosecutors.
c.
The PCGG would not have jurisdiction over an ordinary case
falling under Rep. Act Nos. 3019 and 1379.
The PCGG may, however, investigate and cause the prosecution of
active and retired members of the AFP for violations ofR.A. Nos. 3019
and 1379 only in relation to E.O. Nos. 1, 2, 14, and 14-a, i.e., insofar as
they involve the recovery of ill-gotten wealth of former President Marcos
and his family and his cronies.
d.
The appropriate prosecutory agencies that may investi-gate
and file the petition under R.A. No. 1379 and file the petition for
forfeiture of unexplained wealth against a private citizen are the
provincial prosecutor and the Solicitor General
e.
For violation of R.A. No. 3019 and 1379 of those who are still
in office the agency granted the power to investigate and prosecute
them is the office of the Ombudsman.

The Presidential Commission on Good Government (PCGG)

Prosecution for Violations of RA. No. 3019 (Anti-Graft Law) and RA. No.
1379 (Unexplained Wealth)
Under Executive Order No. 14, signed by President Aquino on May
7,1986.
The Presidential Commission on Good Government with the assistance
of the Office of the Solicitor General and other government agencies,
were empowered to file and prosecute all cases investigated by it under
Executive Order No. 1, dated February 28, 1986 and Executive Order No.

Under Presidential Decree No 1606, as amended and Batas Pambansa

Big. 195, violation of Rep. Act Nos. 3019 and 1379 shall be tried by the
Sandiganbayan.
It is a civil procreedings in rem but criminal in nature
The law underwent several changes. Under R.A. No. 6770 the
Ombudsman was granted the authority to investigate and initiate the
proper action for the recovery of ill-gotten and/or unexplained wealth
amassed after 25 February 1986 and the prosecution of the parties
involved.

Jurisdiction over money-laundering cases

The Anti money-laundering law provides for two kinds of cases which
are independent of each other.
The criminal action for anti-money-laundering offense and the civil
forfeiture proceedings which may be filed separately and proceed
independently of the criminal prosecution.
a.

The Criminal Action

Republic Act No. 9160 as amended (The Anti-Money Laundering Act of

2001)
Defines
Money Laundering Offense. Money laundering is a crime whereby the
proceeds of an unlawful activity are transacted, thereby making them
appear to have originated from legitimate sources.
It is committed by the following:

(c)
Officials of the diplomatic service occupying the position of
consul and higher;
(d)
Philippine army and air force colonels, naval captains, and
all officers of higher rank;
(e)
Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior
superintendent or higher;
(f)
City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g)
Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or
educational institutions
The PCGG may, however, also investigate and prosecute graft and
corrupt practices cases that may be assigned by the President to the
PCGG to be filed with the Sandiganbayan.
Non-interference with Ombudsman
The Court recognizing the investigatory and prosecutory powers
granted by the Constitution to the office of the Ombudsman and for
reasons of practicality, declared in an en bane resolution dated August
30, 1993, issued in Ocampo u. Ombudsman, that the Court will not
interfere nor pass upon the findings of the Ombudsman to avoid its
being hampered by innumerable petitions assailing the dis-missal of
investigatory proceedings conducted by the Office of the Ombudsman
with regard to complaints filed before it, and that it will not review the
exercise of discretion on the part of the fiscals or prosecuting attorneys
each time they decide to file an information in court or dismiss a
complaint by a private complainant.
The court, however, stressed that while it is the Ombudsman who has
full discretion to determine whether or not a criminal case should be
filed in the Sandiganbayan, once the case has been filed with said court,
it is the Sandiganbayan, and no longer the Ombudsman, which has full
control of the case so much so that the informations may not be
dismissed without the approval of said court.
No Injunction Against Ombudsman to Delay Investigation

The Ombudsman is mandated by law to act on all complaints against

officers and employees of the government....

administrative cases, when tainted with grave abuse of discretion, is to

file an original action for certiorari with the Supreme Court and not with
the Court of Appeals.

Under Section 14 of Republic Act No. 6770: No writ of injunction shall

be issued by any court to delay an investigation being conducted by the
Ombudsman under this act, unless there is a prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the
office of the Ombudsman.
Moreover, no court shall hear any appeal or application for remedy
against the decision or findings of the Ombudsman except the Supreme
Court, on pure question of law.
Remedy
The remedy of aggrieved parties from resolutions of the office of the
Ombudsman finding probable cause in criminal cases or non-

1)
Any person knowing that any monetary instrument or
property represents, involves, or relates to the proceeds of any unlawful
activity, transacts or attempts to transact said monetary instrument or
property.
2)
Any person knowing that any monetary instrument or
property involves the proceeds of any unlawful activity, performs or fails
to perform any act as a result of which he facilitates the offense of
money laundering referred to in paragraph (a) above.
3)
Any person knowing that any monetary instrument or
property is required under this Act to be disclosed and filed with the
Anti-Money Laundering Council (AMLC), fails to do so.
b.

Jurisdiction of Money Laundering Cases

The regional trial courts shall have jurisdiction to try all cases on money
laundering.
Those committed by public officers and private persons who are in
conspiracy with such public officers shall be under the jurisdiction of the
Sandiganbayan.
The foregoing section apparently refers to the criminal offense of antimoney laundering as defined in section 4 of the law.
c.

The Civil Forfeiture Proceedings

The law provided that in petitions for civil forfeiture the Revised Rules of
Court shall apply.
In consequence thereof, the Supreme Court issued the RULE OF
PROCEDURE IN CASES OF CIVIL FORFEITURE, ASSET PRESERVATION,
AND FREEZING OF MONETARY INSTRUMENT, PROPERTY, OR PROCEEDS
REPRESENTING, INVOLVING, OR RELATING TO AN UNLAWFUL ACTIVITY
OR MONEY LAUNDERING OFFENSE UNDER REPUBLIC ACT NO. 9160, AS
AMENDED
The Rule expressly provided that
The Rule shall govern all proceedings for civil forfeiture, asset
preservation and freezing of monetary instrument, property, or
proceeds representing, involving, or relating to an unlawful activity or
a money laundering offense under Republic Act No. 9160, as amended.
The Revised Rules of Court shall apply suppletorily
inconsistent with the provisions of this special Rule.

when not

TITLE II of the Rule provided only for Civil Forfeiture in the Regional Trial
Court. Thus
SEC. 2. Party to institute proceedings. The Republic of the Philippines,
through the Anti-Money Laundering Council, represented by the Office of
the Solicitor General, may institute actions for civil forfeiture and all
other remedial proceedings in favor of the State of any monetary
instrument, property, or proceeds representing, involving, or relating
to an unlawful activity or a money laundering offense.

SEC. 3. Venue of cases cognizable by the regional trial court. A

petition for civil forfeiture shall be filed in any regional trial court of the
judicial region where the monetary instrument, property, or proceeds
representing, involving, or relating to an unlawful activity or to a money
laundering offense are located;
Provided, however. That where all or any portion of the monetary
instrument, property, or proceeds is located outside the Philippines, the
petition may be filed in the regional trial court in Manila or of the judicial
region where any portion of the monetary instrument, property, or
proceeds is located, at the option of the petitioner.

without first acting on respondents' motion to dismiss. Since a motion to

dismiss is now a prohibited pleading, the investigator may properly
ignore such a motion.
The amendments require the respondent to submit counter-affidavits
and other supporting documents relied upon by him for his defense.
3.
The amendment in sub-par, (d) requires the prosecutor to
resolve the complaint based on the evidence presented by the
complainant if the respondent cannot be subpoenaed or, if
subpoenaed, does not submit counter-affidavit[s] within the ten (10-day
period.

The Rule does not provide for civil forfeiture before the Sandiganbayan.
The law created an Anti-Money Laundering Council (AMLC). tasked
with implementing the law, was empowered:
(3)
to institute civil forfeiture proceedings and all other remedial
proceedings through the Office of the Solicitor General;
(4)
to cause the filing of complaints with the Department of
Justice or the Ombudsman for the prosecution of money laundering
offenses;

4.
In sub-par, (e), the clarificatory hearing shall only be lim-ited
to facts and issues which the investigating officer believes need to be
clarified.
The clarificatory hearing shall be held within ten (10) days from
submission of the counter-affidavit and other documents, or from
expiration of the period for their submission. It shall be terminated
within five (5) days.

(5)
to initiate investigations of covered transactions, money
laundering activities and other violations of this Act.

5.
The investigation shall then be deemed concluded and the
investigating officer shall, within ten (10) days, determine whether or
not there is sufficient ground to hold the respondent for trial upon the
evidence adduced.

d.

Preliminary Investigation Concept

Civil and Criminal Forfeiture Distinguished

It is to be noted that under the Anti-Money Laundering Act, so far as

Civil Forfeiture is concerned it is the AMLC that is authorized to institute
civil forfeiture proceedings and all other remedial proceedings through
the Office of the Solicitor General with the Regional Trial Court.

a.
A preliminary investigation is merely inquisitorial, but it is
considered as a judicial proceeding wherein the prosecutor or
investigating officer, by the nature of his functions acts as a quasijudicial officer.

There is no similar authority to file such cases with the Sandiganbayan.

The conduct of a preliminary investigation is the initial step towards the

criminal prosecution of a person.

It is only in criminal cases that the AMLC is au-thorized to cause the

filing of complaints with the Department of Justice or the Ombudsman
for the prosecution of money laundering offenses.
But unlike Civil Forfeiture under R.A. No. 1379 which specifically
authorized its filing by the Ombudsman or thru the Office of Special
Prosecutor in the Sandiganbayan.
No similar authority have been granted the Ombudsman with respect to
civil forfeiture under the Anti-money Laundering Law.

After such preliminary investigation, if the investigating officer finds that

there is sufficient ground to engender a well-founded belief that a crime
has been committed and that the respondent is probably guilty thereof
and should be held for trial, then the corresponding complaint or
information shall be filed in the competent court.
It is the filing of said complaint or information that initiates the criminal
prosecution of the accused when he is brought to court for trial.
b.

SEC. 3.
Procedure
COMMENT:
1.
Amendment in paragraph (a) requires that the complaint
should be accompanied by affidavits of the complainant and his
witnesses as well as other supporting papers relied upon by him (the
complainant) to establish probable cause.
A significant amendment is the 2nd paragraph of par. (b) regarding
respondent's right to examine all other evidence submitted by the
complainant of which he may not have been furnished and to obtain
copies thereof at his expense.

Importance of Preliminary Investigation

The Supreme Court stressed the importance of a preliminary

investigation or how the same should be conducted in order for it to
conform with the essential requisites of due process and reiterated its
ruling in the cases of Salonga v. Pano, et al., and Geronimo v. Ramos,
that:
"The purpose of a preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect him
from an open and public accusation of crime, from the trouble, expense
and anxiety of a public trial, and to protect the state from useless and
expensive trials.
The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process."

If such records are voluminous the complainant may be required to

specify and identify those which he intends to present against the
respondent to support the charge against the latter and these shall be
made available for examination, copying or photographing by
respondent at his expense.

However, in order to satisfy the due process clause, it is not enough that
the preliminary investigation is conducted in the sense of making sure
that a transgressor shall not escape with impunity.

The amendment was brought about because of the case of

Commissioner of Internal Revenue v. Court ofAppeals, where among the
issues raised is the failure of the complainant to produce the documents
in support of the complaint.

More important, it is a part of the guarantee of freedom and fair play

which are birthrights of all who live in our country.

For obvious reasons, objects as evidence need not be furnished either

party but shall be made accessible for examination, copying or
photocopying by the complainant or respondent at the expense of the
requesting party.
2.
The amendment in paragraph (c) prohibits the filing of a
motion to dismiss. This is a significant amendment.
It abrogates the ruling in Commissioner of Internal Revenue v. Court of
Appeals, where the court castigated the investigator for proceeding

A preliminary investigation serves not only the purposes of the State.

It is, therefore, imperative upon the fiscal or the judge as the case may
be, to relieve the accused from the pain of going through a trial once it
is ascertained that the evidence is insufficient to sustain a prima facie
case or that no probable cause exists to form a sufficient belief as to the
guilt of the accused.
Although there is no general formula or fixed rule for the determination
of probable cause since the same must be decided in the light of the
conditions obtaining in given situations and its existence depends to a
large degree upon the finding or opinion of the prosecutor (judge)
conducting the examination, such a finding should not disregard the
facts before the prosecutor (judge) nor run counter to the clear dictates

of reasons.

the President effectively foreclose the right to resort to a special civil

action for certiorari.

Such a preliminary investigation must be undertaken in accordance

with the procedure provided in Section 3, Rule 112 of The Revised Rules
on Criminal Procedure.
This procedure is to be observed in order to assure that a person
undergoing such preli-minary investigation will be afforded due process.
c.

The Proceedings are Considered as Judicial in Nature

Thus, the conduct of a preliminary investigation, which is defined as "an

inquiry or proceeding for the purpose of determining whether there is
sufficient ground to engender a well-founded belief that a crime has
been committed and that the respondent is probably guilty thereof,
and should be held for trial," is, like court proceedings, subject to the
requirements of both substantive and procedural due process.
This is because a preliminary investigation is considered a judicial
proceeding wherein the prosecutor or investigating officer, by the
nature of his functions, acts as a quasi-judicial officer, but only to the
extent that, like quasi-judicial bodies, the prosecutor is an officer of the
executive department exercising powers akin to those of a court.
d.
DOJ is not a quasi-judicial agency; Preliminary Investigation
is not a quasi-judicial proceeding reviewable under Rule 43
The Court, however, clarified that: A preliminary investigation is not a
quasi-judicial proceeding, and the DOJ is not a quasi-judicial agency
exercising a quasi-judicial function when it reviews the findings of a
public prosecutor regarding the presence of probable cause.
The Court pointedto its ruling in Bautista u. Court of Appeals, holding
that a preliminary investigation is not a quasi-judicial proceeding,
thus:
[t]he prosecutor in a preliminary investigation does not determine the
guilt or innocence of the accused. He does not exercise adjudication nor
rule-making functions.
Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with
a crime and to enable the fiscal to prepare his complaint or information.
It is not a trial of the case on the merits and has no purpose except that
of determining whether a crime has been committed and whether there
is probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be
acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.

RESPONDENT CANNOT BE COMPELLED TO SUBMIT COUNTERAFFIDAVIT BEFORE COMPLAINANT HAS SUBMITTED ITS AFFIDAVITS;
CRIMINAL
INVESTIGATION
AND
PRELIMINARY
INVESTIGATION
DISTINGUISHED
The respondent undergoing a preliminary investigation may not be
compelled to submit a counter-affidavit before the submission of
complainant's affidavit.
The general power of investigation of the PCGG as consisting of two
stages; the first stage, called the criminal investigation, is a fact-finding
inquiry conducted by law enforcement agents, whereby they gather
evidence and interview witnesses and afterwards assess the evidence
so that, if they find sufficient basis, they can file a complaint for the
purpose of preliminary investigation.
The second stage, called the preliminary investigation stage, is
conducted for the purpose of ascertaining if there is sufficient
evidence to bring a person to trial.
Having found petitioner prima facie guilty of violation of Rep. Act No.
3019 for which reason it issued a freeze order against him and filed a
civil complaint for recovery of alleged ill-gotten wealth, the PCGG could
not thereafter act as an impartial judge in conducting a preliminary
investigation of criminal complaints based on the same facts found by
it to constitute prima facie evidence against petitioner.
In our criminal justice system, the law enforcer who conducted the
criminal investigation, gathered the evidence and thereafter filed the
complaint for the purpose of preliminary investigation cannot be allowed
to conduct the preliminary investigation of his own complaint. It is to
say the least arbitrary and unjust.
One cannot be a prosecutor and judge at the same time.
Having gathered the evidence and filed the complaint as a law
enforcer, he cannot be expected to handle with impartiality the
preliminary investigation of his own complaint, this time as a public
prosecutor.
Since a preliminary investigation is designed to screen cases for trial,
only evidence may be considered.
While reports and even raw information may justify the initiation of an
investigation, the stage of preliminary investigation can be held only
after sufficient evidence has been gathered and evaluated warranting
the eventual prosecution of the case in court.
Meaning of Probable Cause for Purpose of Filing Information

Though some cases describe the public prosecutor's power to conduct a

preliminary investigation as quasi-judicial in nature, this is true only to
the extent that, like quasi-judicial bodies, the prosecutor is an officer
of the executive department exercising powers akin to those of a court,
and the similarity ends at this point.

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

or may be, well founded does not mean actual and positive cause nor
does it import actual certainty.
It is merely based on opinion and reasonable belief.

A quasi-judicial body is as an organ of government other than a court

and other than a legislature which affects the rights of private parties
through either adjudication or rule-making.
A quasi-judicial agency performs adjudicatory functions such that its
awards, determine the rights of parties, and their decisions have the
same effect as judgments of a court.
Such is not the case when a public prosecutor conducts a preliminary
investigation to determine probable cause to file an information against
a person charged with a criminal offense, or when the Secretary of
Justice is reviewing the former's order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not one of those
agencies whose decisions, orders or resolutions are appealable to the
Court of Appeals under Rule 43, the resolution of the Secretary of
Justice finding probable cause to indict petitioners for estafa is, not
appealable to the Court of Appeals via a petition for review under Rule
43.

Thus, a finding of probable cause does not require an inquiry into

whether there is sufficient evidence to procure a conviction.
It is enough that it is believed that the act or omission complained of
constitutes an offense charged.
Precisely, there is a trial for the reception of evidence of the prosecution
in support of the charge.
Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.
As a protection against false prosecution and arrest, the knowledge of
facts, actual or apparent must, however, be strong enough to justify a
reasonable man in the belief that he has lawful grounds for arresting the
accused

However, the Resolution of the DOJ Secretary is appelable

administratively to the Office of the President where the offense
charged is punishable by Reclusion perpetua."

It is such a state of facts in the mind of the prosecutor as would lead a

person of ordinary caution and prudence to believe an honest or strong
suspicion that a thing is so.

The availability of the remedy of a petition for review under Rule 43 of

the Rules of Court to appeal the Decision and Resolution of the Office of

The term does not mean "actual or positive cause"; nor does it import
absolute certainty.

It is merely based on opinion and reasonable belief.

Determination of Probable Cause
As summed up in Webb u. de Leon, a finding of probable cause needs
only to rest on evidence showing that more likely than not
a crime has been committed and was committed by the suspects.

JUDGES OF REGIONAL TRIAL COURTS (FORMERLY COURTS OF FIRST

INSTANCE) NO LONGER HAVE AUTHORITY TO CONDUCT PRELIMINARY
INVESTIGATIONS
That authority, at one time, reposed in them under Sections 13, 14 and
16, Rule 112 of the Rules of Court of 1964 was removed from them by
the 1985 Rules on Criminal Procedure, effective on January 1, 1985,
which deleted all provisions granting that power to said judges.

Probable cause need not be based on clear and convincing evidence of

guilt, neither on evidence establishing guilt beyond reasonable doubt
and definitely, not on evidence establishing absolute certainty of guilt.

The Supreme Court had occasion to point this out in Salta v. Court of
Appeals, and to stress as well certain other basic propositions, namely:

As well put in Brinegar v. United States, while probable cause demands

more than "bare suspicion," it requires "less than evidence which would
justify x x x a conviction."

(1)
that the conduct of a preliminary investi-gation is "not a
judicial function x x x (but) part of the prosecution's job, a function of
the executive,"

A finding of probable cause merely binds over the suspect to stand

trial.
It is not a pronouncement of guilt.
Thus, probable cause should be determined in a summary but
scrupulous manner to prevent material damage to a potential accused's
constitutional right to liberty and the guarantees of freedom and fair
play.
The preliminary investigation is not the occasion for the full and
exhaustive display of the parties evidence.

(2)
that wherever "there are enough fiscals or prosecutors to
conduct preliminary investigations, courts are counseled to leave this
job which is essentially executive to them," and the fact "that a certain
power is granted does not necessarily mean that it should be
indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure,
declared effective on October 1, 1988, did not restore that authority to
Judges of Regional Trial Courts; said amendments did not in fact deal at
all with the officers or courts having authority to conduct preliminary
investigations.
Judges' Power (Duty) to Conduct Preliminary Examination

It is for the presentation of such evidence as may engender a well

grounded belief that an offense has been committed and that the
accused is probably guilty thereof.
It is a means of discovering the persons who may be reasonably
charged with a crime.
The validity and merits of a party's defense or accusation, as well as
admissibility of the testimonies and evidence, are better ventilated
during trial proper than at the preliminary investigation level.

This is not to say, however, that somewhere along the line, RTC Judges
also lost the power to make a preliminary examination for the purpose
of determining whether probable cause exists to justify the issuance of a
warrant of arrest (or search warrant).
Such a power indeed, it is as much a duty as it is a power has been
and remains vested in every judge by the provision in the Bill of Rights
in the 1935, the 1973 and the present 1987 Constitutions securing the
people against unreasonable searches and seizures, thereby placing it
beyond the competence of mere Court rule or statute to revoke.

No Need to Set Investigation for Clarificatory Questioning

defective.

The notice must be sent at the right address.

Much less did it affect the jurisdiction of the trial court.

Preliminary Investigation Must Be Completed

The right to a preliminary investigation, being waivable does not argue

against the validity of the proceedings.

Where the rules of the Ombudsman (R.A. No. 6770, Sec. 7, Rule II,
Administrative Order No. 7), allows a party to file a motion for
reconsideration, but the respondents were not furnished a copy of the
resolution and an opportunity to file a motion for reconsideration
before the filing of the information against them in court, the Supreme
Court held that, they were deprived of their right to a full preliminary
investigation preparatory to the filing of the informa-tion against them,
which warranted the remand of the case to the Office of the
Ombudsman to complete the preliminary investigation.

The most that should be done is to remand the case in order that such
investigation could be conducted.
No Right to Counsel During Preliminary Investigation
It has been held that there is nothing in the rules which renders a
preliminary investigation invalid because defendant was without
counsel.
See, however, People v. Abano, where the confession obtained during
preliminary investigation without the assistance of counsel was held as
inadmissible.
The Right of Accused to Discovery Procedures
In Webb u. de Leon, the court held that an accused is entitled during
preliminary investigation to discovery procedure.
While recognizing the absence of any provision in the Rules on Criminal
Procedure for discovery proceedings during preliminary investigation,
the Court held that such failure does not, however, negate its use by a
person under investigation when indispensable to protect his
constitutional right to life, liberty and property.
Preliminary investigation is not too early a stage to guard against
significant erosion of the constitutional right to due process of a
potential accused; x x x and upheld the legal basis of the right of
petitioners to demand from their prosecutor, the NBI, the original copy
of the sworn statement and the FBI report considering their exculpatory
character, and hence, unquestionable materiality to the issue of their
probable guilt.
Under the present rule, the respondent shall have the right to examine
the evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense.

The distinction must, therefore, be made clear.

Considering the low quantum and quality of evidence needed to support
a finding of probable cause, the court held that the DOJ Panel did not
gravely abuse its discretion in refusing to call the NBI witnesses for
clarificatory questions.
The decision to call witnesses for clarificatory questions is addressed to
the sound discretion of the investigator and the investigator alone.
If the evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing.
Probable cause merely implies probability of guilt and should be
determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his innocence.
It is not the proper forum for an exhaustive production of evidence.
Stages of Preliminary Investigation: Former and Present Rule
The Court, pointed out in Sangguniang Bayan ofBatac v. Judge Efren
Albano, that the two stages under the old rule, namely:

While an RTC Judge may no longer conduct preliminary investigations to

ascertain whether there is sufficient ground for the filing of a criminal
com-plaint or information, he retains the authority when such a
pleading is filed with his Court, to determine whether there is probable
cause justifying the issuance of a warrant of arrest.

If the evidence is voluminous, the complainant may be required to

specify those which he intends to present against the respondent, and
these shall be made available for examination or copying by the
respondent at his expense.
Preliminary Designation of Offense Not Conclusive

It might be added that this distinction accords, rather than conflicts,

with the rationale of Salta because both law and rule, in restricting to
judges the authority to order arrest, recognize that function to be
judicial in nature.

The preliminary designation of the offense in a directive to file counter

affidavits is not conclusive as to the true nature of the offense charged.

No Right of Cross-Examination

The New Rules on Criminal Procedure does not require as a condition

sine qua non to the validity of the proceedings in the preliminary
investigation; the presence of the accused for as long as efforts to reach
him were made, and an opportunity to controvert the evidence of the
complainant is accorded him.

It is a fundamental principle that the accused in a preliminary

investigation has no right to cross-examine the witnesses which the
complainant may present.
Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where
the fiscal sets a hearing to propound clarificatory questions to the
parties or their witnesses, to be afforded an opportunity to be present
but without the right to examine or cross-examine.

The Right to be Present Not Absolute

The obvious purpose of the rule is to block attempts of unscrupulous

respondents to thwart the prosecution of offenses by hiding themselves
or by employing dilatory tactics.
Thus, preliminary investigation can be conducted ex-parte if the
respondent cannot be subpoenaed or does not appear after due
notice.

The parties may propound questions thru the in-vestigating officer.

(1)
the preliminary examination stage, during which the
investigating judge determines whether there is reasonable ground to
believe that an offense has been committed, and the accused is guilty
thereof, so that a warrant of arrest may be issued and the accused hold
for trial; and
(2)
the preliminary investigation proper, where the complaint or
information is read to the accused after his arrest and he is informed of
the substance of the evidence adduced against him, after he is allowed
to present his evidence in his favor if he so desires, was changed by
Presidential Decree No. 911, upon which the present rule is based which
removed the preliminary examination stage and integrated it into the
preliminary investigation proper.
Now, the proceedings consist only of one stage.

The fiscal need not call the witnesses for clarificatory questioning if
the evidence on hand already yields probable cause.
Absence of Counsel
The Right to Notice
Where the accused is not represented by a counsel during the
preliminary investigation, such irregularity which amounts to an
absence of preliminary investigation should be raised before the trial
court.
When so raised, the trial court is called upon not to dismiss the
information but hold the case in abeyance and conduct its own
investigation or require the fiscal to hold a reinvestigation.
This is the proper procedure since the absence of such investigation did
not impair the validity of the information or otherwise render it

The, respondent is, however, entitled to be notified of the proceedings

and to be present thereat.
The fact that he was not so notified is a denial of fundamental fairness
which taints the preliminary investigation.
In a petition for forfeiture under R.A. No. 1379 respondent must be
furnished a copy of the resolution directing the filing of a petition for
forfeiture and to file a motion for reconsideration.

The failure, however, to furnish the respondent with a copy of an

adverse resolution pursuant to Section 6, Rule II of the Rules of
Procedure of the Office of the Ombudsman, does not affect the validity
of information thereafter filed.
Under Section 7(b) of the same Rule no motion from reconsideration or
reinvestigation shall be en-tertained after the information shall have
been filed in court, except upon order of the court wherein the case was
filed.
Thus, when required by law the right to a preliminary investigation is a
substantial right and its denial amounts to a denial of due process.
Its absence, however, is not a ground for a motion to quash.
General Court Martial
Under Military law, the conduct of investigations is primarily governed
by Articles 71 of the Articles of War, which provides: Charges and
specifications must be signed by a person subject to military law, and
under oath either that he has personal knowledge of, or has
investigated the matters set forth therein and that the same are true
in tact, to the best of his knowledge and belief.
No charge will be referred to a general court martial for trial until after a
thorough and impartial investigation thereof shall have been made.
This investigation will include inquiries as to the truth of the matter set
forth in said charges, form of charges, and what disposition of the case
should be made in the interest of justice and discipline.
At such investigation, full opportunity shall be given to the accused to
cross-examine witnesses against him if they are available and to
present anything he may desire in his own behalf, either in defense or
mitigation, and the investigating officer shall examine available
witnesses requested by the accused.
If the charges are forwarded after such investigation, they shall be
accompanied by a statement of the substance of the testimony taken
on both sides.
Before directing the trial of any charge by general court-martial the
appointing authority will refer it to his staff judge advocate for
consideration and advise.
SEC. 4.
Resolution of Investigating Prosecutor and its Review
COMMENTS:
1.
Under the amendment, whether the recommendation of the
investigating officer is to file or dismiss the case, he shall, within five (5)
days from his resolution, forward the records of the case to the
provincial or city prosecutor or chief state prosecutor or, for offenses
cognizable by the sandiganbayan in the exercise of its original
jurisdiction, to the ombudsman or his deputy the latter shall take
appropriate action thereon within ten (10) days from receipt and shall
immediately inform the parties of said action.
2.
For offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, the records should be remanded to
the Ombudsman, since it is the latter that has primary jurisdiction to
investigate, file and prosecute said cases.'
3.
The rule recognize the right of a party to appeal to the
Secretary of Justice and requires that the parties be notified of the
recommendation of the action to be taken thereon.
Under Sec. 11 of Rule 116, among the grounds for suspension of the

arraignment is when:
"(c)
A petition for review of the prosecutor's resolution is
pending at either the department of justice or the office of the
president: Provided, That the period of suspension shall not exceed sixty
(60) days counted from the filing of the petition with the reviewing
office."
Role of the Prosecutor
Prosecutors should not allow, and should avoid giving the impression
that their noble office is being used or prostituted, wittingly or
unwittingly, for the political ends or other purposes alien to, or
subversive of, the basic and fundamental objective of serving the
interest of justice even-handedly, without fear or favor to any and all
litigants alike, whether rich or poor, weak or strong, powerless or
mighty.
Only by strict adherence to the established procedure may the public's
perception of the impartiality of the prosecutor be enhanced.

Officer Conducting Preliminary Investigation Must be Impartial

An indispensable requisite of due process is that the person who
presides and decides over a proceeding, including a preliminary
investigation, must possess the cold neutrality of an impartial judge.
Although such a preliminary investigation is not a trial and is not
intended to usurp the function of the trial court, it is not a casual affair.
The officer conducting the same investigates or inquires into the facts
concerning the commission of the crime with the end in view of
determining whether or not an information may be prepared against the
accused.
Indeed, a preliminary investigation is in effect a realistic judicial
appraisal of the merits of the case. Sufficient proof of the guilt of the
accused must be adduced so that when the case is tried, the trial court
may not be bound as a matter of law to order an acquittal.
A preliminary investigation has then been called a judicial inquiry.
It is a judicial proceeding.
An act becomes judicial when there is opportunity to be heard and for
the production and weighing of evidence, and a decision is rendered
thereon.
The authority of a prosecutor or investigating officer duly empowered to
preside or conduct a preliminary investigation is no less than that of a
municipal judge or even a regional trial court judge.
While the investigating officer, strictly speaking, is not a "judge," by the
nature of his functions, he is and must be considered to be a quasijudicial officer.
It should be realized that when a man is hailed to court on a criminal
charge, it brings in its wake problems not only for the accused but for
his family as well.
Therefore, it behooves a prosecutor to weigh the evidence carefully
and to deliberate thereon to determine the existence of prima facie case
before filing the information in Court.
Anything less would be a dereliction of duty.
The officer who review a case on appeal should not be the same person
whose decision is under review.
Discretion of Prosecutor
The investigating fiscal has discretion to determine the specificity and
adequacy of averments of the offense charged.
He may dismiss the complaint forthwith if he finds it to be insufficient
in form or substance or if he otherwise finds no ground to continue with
the inquiry, or proceed with the investigation if the complaint is, in his
new, in due and proper form.
It is not his duty to require a more particular statement of the
allegations of the complaint merely upon the respondents' motion and
specially where, after an analysis of the complaint and its supporting
statements, he finds it sufficiently definite to apprise the respondents

of the offenses with which they are charged.

The institution of a criminal action depends upon the sound discretion of
the fiscal. He has the quasi-judicial discretion to determine whether or
not a criminal case should be filed in court.
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal
Procedure, the Information shall be prepared by the Investigating
Prosecutor against the respondent only if he or she finds probable cause
to hold such respondent for trial.
The Investigating Prosecutor acts without or in excess of his authority
under the Rule if the Information is filed against the respondent despite
absence of evidence showing probable cause therefor.
Duty of Investigation Fiscal; Effect of Absence of Certification
If a preliminary investigation was actually conducted, the absence of
certification by the investigating fiscal that it was conducted is not
fatal.
Absence of certification as to holding of Preliminary Investigation does
not affect validity of information.

(a)
refuse to enter a plea upon arraignment and object to
further proceedings upon such ground;
(b)
insist on preliminary investigation;
(c)
file certiorari if refused;
(d)
raise lack of preliminary investigation as error on appeal;
(e)
file prohibition.
When Habeas Corpus allowed
Habeas Corpus was allowed as a remedy for irregular preliminary
investigation conducted by a municipal judge in a murder case, who
without legal authority for being disqualified as a relative within the 3rd
degree and without proper preliminary examination ordered the
issuance of a warrant of arrest as a consequence of which accused was
illegally detained.
The judge then remanded the case to the provincial prosecutor who was
then held as without authority to lift the warrant of arrest.
The judge was considered, as in construe five custody of the accused,
by virtue of an illegal warrant of arrest.

SECTION 39, CHAPTER 8, BOOK IV IN RELATION TO SECTION[S] 5; 8,

AND 9, CHAPTER 2, TITLE III OF THE CODE GIVES THE SECRETARY OF
JUSTICE SUPERVISION AND CONTROL OVER THE OFFICE OF THE CHIEF
PROSECUTOR AND THE PROVINCIAL AND CITY PROSECUTION OFFICES.
The scope of his power of supervision and control is delineated in
Section 38, paragraph 1, Chapter 7, Book IV of the Code:
'(1) Supervision and Control. Supervision and control shall include
authority to act directly whenever s specific function is entrusted by law
or regulation to a subordinate; direct the performance of duty; restrain
the commission of acts; review, approve, reverse or modify acts and
decisions of subordinate officials or units; x x x.'
Supplementing the aforequoted provisions are Section ofR.A. No. 3783
and Section 37 of Act 4007, which read:
'Section 3. x x x
The Chief State Prosecutor, the Assistant Chief Stat( Prosecutors, the
Senior State Prosecutors, and the Statt Prosecutors shall x x x perform
such other duties as may be assigned to them by the Secretary of
Justice in the in terest of public service.'

Appeals to the Secretary of Justice

The certification "that a preliminary investigation has been conducted in
this case; that there is a reasonable ground to engender a well-founded
belief that a crime has been committed and that the accused are
probably guilty thereof is sufficient.
The failure to state therein that the accused was informed of the
complaint and was given an opportunity to submit controverting
evidence is fatal and untenable.
Designation of Offense by Fiscal Not Binding Upon Court
The designation of the offense by the Fiscal is not binding upon the
Court.
Remedies if There is No Preliminary Investigation
Absence of preliminary investigation does not impair the validity of
information.
It is not a ground for a motion to quash.
Absence of Preliminary Investigation is not a ground for motion to
quash.
Dismissal for lack of Preliminary Investigation is not allowed,
The remedy is to hold in abeyance proceedings and order the Fiscal to
hold preliminary Investigation
The same principles were stressed in Torralba v. Sandiganbayan.
Proper Forum to Raise Absence of Preliminary Investigation
The proper forum before which absence of preliminary investigation
should be ventilated is the Regional Trial Court and not the Supreme
Court. Absence of a preliminary investigation does not go to the
jurisdiction of the court but merely to the regularity of the proceedings
that could be waived.
Habeas Corpus Not a Remedy
If there was no preliminary investigation, the remedy is not a petition for
habeas corpus but a motion before the trial court to quash the warrant
of arrest, and/or the Information on grounds provided by the Rules, or to
ask for an investigation/reinvestigation of the case.
Habeas corpus would not lie after the Warrant of Commitment was
issued by the Court on the basis of the Information filed against the
accused. So it is explicitly provided for by Section 14, Rule 102 of the
Rules of Court x x x.
Ilagan was a reiteration of the Supreme Court's ruling in People v.
Casiano.
The same rule was reiterated in Doromal v. Sandigabayan.

If there was no preliminary investigation, the accused must

The power of supervision and control by the Minister of Justice over the
fiscals cannot be denied.
As stated in Noblejas v. Sales, "Section 79 of the Revised Administrative
Code defines the extent o a department secretary's power.
The power of control therein contemplated means (the power of the
department head) to alter, modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.
The power of control implies the right of the President (and, naturally, of
his alter ego) to interfere in the exercise of such discretion as may be
vested by law in the officers of the national government, as well as to
act in lieu of such officers."
For, while it is the duty of the fiscal to prosecute persons who, according
to evidence received from the complainant, are shown to be guilty of a
crime, the Minister of Justice is likewise bound by his oath of office to
protect innocent persons from groundless, false or serious prosecution.
He would be committing a serious dereliction of duty if he orders or
sanctions the filing of an information based upon a complaint where
he is not convinced that the evidence would warrant the filing of the
action in court.
As he has the power of supervision and control over prosecuting
officers, the Minister of Justice has the ultimate power to decide which
as between conflicting theories of the complainant and the respondents
should be believed.
Thus, the DOJ Order allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can
still exercise the right to seek review of the prosecutor's
recommendation with the Secretary of Justice.
Power of Secretary to Review
The power of the Secretary of Justice to review resolutions of his
subordinates even after the information has already been filed in court
is well settled.
In Marcelo v. Court of Appeals, reiterated in Roberts v. Court of Appeals,
the Court clarified that nothing in Crespo v. Mogul, forecloses the power
or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases despite an information already having
been filed in court.
Nature of Justice Secretary's Power of Control over prosecutors
The nature of the Justice Secretary's power of control over prosecutors
was explained in Ledesma u. Court of Appeals, in this wise:
"DECISIONS OR RESOLUTIONS OF PROSECUTORS ARE SUBJECT TC
APPEAL TO THE SECRETARY OF JUSTICE WHO, UNDER THE REVISED
ADMINISTRATIVE CODE EXERCISES THE POWER OF DIRECT CONTROL
AND SUPERVISION OVER SAID PROSECUTORS; AND WHO MAY THUS
AFFIRM; NULLIFY, REVERSE OR MODIFY THEIR RULINGS.

SECTION 37. THE PROVISIONS OF THE EXISTING LAW TO TH( CONTRARY

NOTWITHSTANDING, WHENEVER A SPECIFIC POWER AUTHORITY, DUTY,
FUNCTION, OR ACTIVITY IS ENTRUSTED TO A CHIEF OF BUREAU, OFFICE,
DIVISION OR SERVICE, THE SAME SHALL B( UNDERSTOOD AS ALSO
CONFERRED UPON THE PROPER DEPARTMENT HEAD WHO SHALL HAVE
AUTHORITY TO ACT DIRECTLY IN PURSUANCE THEREOF, OR TO
REVIEW, MODIFY, OR REVOKE ANY DECISION OR ACTION OF SAID CHIEF
OF BUREAU, OFFICE, DIVISION OR SERVICE."
'SUPERVISION' AND 'CONTROL' OF A DEPARTMENT HEAD OVER HIS
SUBORDINATES HAVE BEEN DENNED IN ADMINISTRATIVE LAW AS
FOLLOWS:
'IN ADMINISTRATIVE LAW, SUPERVISION MEANS OVERSEEING OR THE
POWER OR AUTHORITY OF AN OFFICER TO SEE THAT SUBORDINATE
OFFICERS PERFORM THEIR DUTIES.
If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform such duties.
Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former for that of the latter.'
Review as an act of supervision and control by the justice secretary over
the fiscals and prosecutors finds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or
negligence committed in the initial steps of an administrative activity
or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts.
As a rule, only after administrative remedies are exhausted may
judicial recourse be allowed."
Hence, after the Resolution of the provincial fiscal have already been
affirmed the resolution of the Prosecutor which in effect is a finding of
the Secretary of Justice himself as to the existence of probable cause
to hold the accused for trial, the Fiscal should not conduct another
reinvestigation and the court should not entertain the same.
The Secretary of Justice who has the power of supervision and control
over prosecuting officers, is the ultimate authority who decides which of
the conflicting theories of the complainants and the respondents should
be believed.
The provincial or city prosecutor has neither the personality nor the
legal authority to review or overrule the decision of the Secretary.
A motion for reinviestigation on the ground of newly discovered
evidence must be filed before the Secre-tary of Justice rules on an
appeal from a resolution in a preliminary investigation.
The Court still reiterated in the 2005 case of Serag, the 1994 case of
Marcelo for the Court to suspend the proceedings until after the
Secretary of Justice had resolved the motion with finality and cited
Section 7 of DOJ Circular No. 70 which provides:
SECTION 7. Action on the petition. The Secretary of Justice may
dismiss the petition outright if he finds the same to be patently without

merit or manifestly intended for delay, or when the issues raised therein
are too unsubstantial to require consideration.
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused had
already been arraigned. Any arraignment made after the filing of the
petition shall not bar the Secretary of Justice from exercising his power
of review.
More importantly, the ruling in Solar Entertainment, Inc. v. Haw, that the
thirty-day period to suspend the arraignment (as provided for in Section
2 of Circular No. 38-98) is not absolute was reiterated in the 2006 case
of Lumanlaw v. Peralta, Jr.
Secretary of Justice to Refrain Only as Far as Practicable from Review
of Cases Already Filed in Court
In Dee v. Court of Appeals, the Supreme Court reiterated its
pronouncement in Crespo v. Mogul, that the Secretary of Justice as far
as practicable, should refrain from entertaining a petition for review of
appeal from the action of the fiscal, when the complaint or information
has already been filed in court.

IN CERTAIN CASES.
Once a petition for review is filed with the DOJ it behooved the RTC to
suspend the proceedings until after the Secretary of Justice had resolved
the motion with finality, including the consideration of the motion of the
Provincial Fiscal for the admission of the Second Amended Information
for homicide, the dismissal of Criminal Case No. 926 and the
arraignment of the Petitioner for homicide. The court reiterated its
earlier ruling in Marcelo v. Court of Appeals (supra).
COMPARE
Under Section ll(c) of Rule 116 the period of suspension shall not exceed
sixty (60) days counted from the filing of the petition with the reviewing
office. (This is a new Rule under the 2000 Rules on the Revised Rules of
Criminal Procedure.)
The period of suspension shall not exceed sixty (60) days counted from
the filing of the petition with the reviewing office after the expiration of
said period, the trial court is bound to arraign the accused or to deny
the motion to defer arraignment.

Determination
Prerogative

of

Court to prevent the threatened unlawful arrest of petitioners.

Probable

Cause,

Either

Executive

or

Judicial

In criminal prosecutions, the determination of probable cause may

either be an executive or judicial prerogative. In People v. Inting, the
Court aptly stated:
"JUDGES AND PROSECUTORS ALIKE SHOULD DISTINGUISH THE
PRELIMINARY INQUIRY WHICH DETERMINES PROBABLE CAUSE FOR THE
ISSUANCE OF A WARRANT OF ARREST FROM A PRELIMINARY
INVESTIGATION PROPER WHICH ASCERTAINS WHETHER THE OFFENDER
SHOULD BE HELD FOR TRIAL OR RELEASED.
Even if the two inquiries are conducted in the course of one and the
same proceeding, there should be no confusion about the objectives.
The determination of probable cause for the warrant of arrest is made
by the Judge.

Despite the foregoing provision and ruling, the Court in the 2005 case
ofSerag (supra) reiterated the 1994 ruling in the case ofMarcelo (supra)
for the Court to suspend the proceedings until after the Secretary of
Justice had resolved the motion with finality and cited Section 7 ofDOJ
Circular No. 70 which provides:

The preliminary investigation proper whether or not there is

reasonable ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial is the function of the
Prosecutor.

SECTION 7. Action on the petition. The Secretary of Justice may

dismiss the petition outright if he finds the same to be patently without
merit or manifestly intended for delay, or when the issues raised therein
are too unsubstantial to require consideration.

Preliminary investigation should be distinguished as to whether it is an

investigation for the determination of a sufficient ground for the filing
of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest.

If an information has been filed in court pursuant to the appealed

resolution, the petition shall not be given due course if the accused had
already been arraigned.

The first kind of preliminary investigation is executive in nature.

The Secretary of Justice is only enjoined to refrain, as far as practicable,

from entertaining a petition for review or appeal from the action of the
prosecutor once a complaint or information is filed in court.

Any arraignment made after the filing of the petition shall not bar the
Secretary of Justice from exercising his power of review.

The second kind of preliminary investigation which is more properly

called preliminary examination is judicial in nature and is lodged with
the judge."

In any case, the grant of a motion to dismiss, which the prosecution

may file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court.

This may be interpreted to mean that while the Court may not suspend
the arraignment beyond the 60 day limitation, it may still suspend the
trial pending final resolution by the DOJ.

In Roberts, the Court went further by saying that Crespo could not have
foreclosed said power or authority of the Secretary of Justice "without
doing violence to, or repealing, the last paragraph of Section 4, Rule 112
of the Rules of Court."

Under the Speedy Trial Rule any period of delay resulting from other
proceedings concerning the accused including but not limited to those
enumerated in Section 3 of Rule 119 in computing the time within
which trial must commence shall be excluded

While the section speaks of resolutions dismissing a criminal complaint,

petitioners were not barred from appealing from the resolution holding
that only homicide was committed, considering that their complaint was
for murder.

f)
Any period of delay resulting from a continuance granted by any
court motu proprio, or on motion of either the accused or his counsel, or
the prosecution, if the court granted the continuance on the basis of his
findings set forth in the order that the ends of justice served by taking
such action outweigh the best interest of the public and the accused in
a speedy trial.*9

The matter should be left entirely for the determination of the Court.
The Court, however, clarified en bane in Roberts v. Court of Appeals,
that there is nothing in Crespo v. Mogul which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused
in a criminal case from an unfavorable ruling of the investigating
prosecutor.
It merely advised the DOJ to, "as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal,
when the complaint or information has already been filed in Court."

By holding that only homicide was committed, the Provincial

Prosecutor's Office ofPampanga effectively "dismissed" the complaint
for murder. Accordingly, petitioners could file an appeal under said
Section 1.
To rule otherwise would be to forever bar redress of a valid grievance,
especially where the investigating prosecutor, demonstrated what
unquestionably appeared to be unmitigated bias in favor of the accused.
Section 1 is not to be literally applied in the sense that appeals by the
offended parties are allowed only in case of dismissal of the complaint,
otherwise the last paragraph of Section 4, Rule 112, Rules of Court
would be meaningless.
Need to Defer Arraignment if DOJ had Already Given Due Course to
Appeal
Where the DOJ had already given due course to the petitioner's
petition for review, it was premature for respondent judge to deny the
motions to suspend proceedings and to defer arraignment on the
ground that "since the case is already pending for trial, to follow
whatever opinion the Secretary of Justice may have on the matter would
undermine the independence and integrity of this court."
Thus the complainant cannot be stripped of the Secretary's authority to
act on and resolve the motion of the private complainant on the
Prosecutor's insistence that the accused be arraigned on June 6, 2002.
Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of Justice
may resolve the said motion despite the arraignment of the
petitioners.

The Supreme Court stressed that the real and ultimate test of the
independence and integrity of the court is not the filing of the motion to
suspend at that stage of the proceedings but the filing of a motion to
dismiss or to withdraw the information on the basis of a resolution of the
petition for review reversing the Joint Resolution of the investigating
prosecutor.
Before that time, the pronouncement in Crespo v. Mogul, that "once a
complaint or information is filed in court any disposition of the case as
its dismissal or the conviction of accused or acquittal of the accused
rests in the sound discretion of the court," did not yet become relevant
or applicable.
However, once a motion to dismiss or withdraw the information is filed
the trial judge may grant or deny it, not out of subservience to the
Secretary of Justice, but in faithful excercise of judicial nrerogative on
the duty of the trial judge to make an independent assessment and
finding of the evidence, it not being sufficient for the valid and proper
excercise of judicial discretion merely to accept the prosecution's word
for its supposed insufficiency.
In the absence of such a finding, the order of the court denying or
granting the motion is void.
The procedure of appeals to the Secretary of Justice were consolidated
and modified by Department of Justice Circular No. 70 dated July 3,
2000 entitled 2000 NFS RULE ON APPEAL (Appendix F) and
Department Circular No. 70-A dated July 10, 2000 DELEGATION OF
AUTHORITY TO REGIONAL STATE PROSECUTORS TO RESOLVE APPEALS

It is part of the prosecution's job.

Determination of Probable Cause Not a Supreme Court Function:

Exceptions
The Court thus pointed out that ordinarily, the determination of probable
cause is not lodged with this Court.
Its duty in an appropriate case is confined to the issue of whether the
executive or judicial determination, as the case may be, of probable
cause was done without or in excess of jurisdiction with grave abuse of
discretion amounting to want of jurisdiction.
This is consistent with the general rule that criminal prosecutions may
not be restrained or stayed by injunction, preliminary or final.
There are, however, exceptions to the rule, among which were
enumerated in Brocka v. Enrile, as follows:
a.
To afford adequate protection to the constitutional rights of
the accused;
b.
When necessary for the orderly administration of justice or
to avoid oppression or multiplicity or actions;
c.

When there is a prejudicial question;

d.
authority;

When the acts of the officer are without or in excess of

e.
Where the prosecution is under an invalid law, ordinance or
regulation;
f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

h.

Where it is a case of persecution rather than prosecution;

i.
Where the charges are manifestly false and motivated by
the lust for vengeance;
j.
When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been denied; and
k.

Preliminary injunction has been issued by the Supreme

In these exceptional cases, the Court may ultimately resolve the

existence or non-existence of probable cause by examining the records
of the preliminary investigation, and may also restrain a preliminary investigation.
The Court in the "349" Pepsi-Cola cases recognized the several
thousands of complainants in Criminal Case No. Q-93-43198 (in which
the order of arrest was appealed to the DOJ), and several thousands
more in different parts of the country who are similarly situated as the
former for being holders of "349" Pepsi crowns, any affirmative holding
of probable cause in the said case nay cause or provoke, the filing of
several thousand cases in various courts throughout the country.
Inevitably, the petitioners would be exposed to the harassments of
warrants of arrest issued by such courts and to huge expenditures for
premium on the bail bonds and for travels from one court to another
throughout the length and breath of the archipelago for their
arraignments and trials in such cases.
Worse, the filing of these staggering number of cases would necessarily
affect the trial calendar of our overburdened judges and take much of
their attention, time and energy, which they could devote to other
equally, if not more, important cases.
Such a frightful scenario would seriously affect the orderly
administration of justice, or cause oppression or multiplicity of actions
a situation already long conceded to be an exception to the general
rule that criminal prosecutions may not be restrained or stayed by
injunction.
The Court, however, refused to reevaluate the evidence to determine if
indeed there is probable cause for the issuance of warrants of arrest in
Criminal Case No. 93-43298, as it did, in Allado and Webb for, as
reasoned out by the Court, the respondent Judge did not, in fact, find
that probable cause exists, and if he did he did not hrve the basis
therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb.
Moreover, the records of the preliminary investigation are not with the
court but with the DOJ.
The Supreme Court held that the trial court and the DOJ must be
required to perform their duty.
The Court, therefore directed the DOJ to resolve on the merits,
petitioner's petition for review of the Joint Resolution of the Investigating
prosecutors and thereafter file the appropriate motion or pleading
before respondent Judge which he shall then resolve in the light of
Crespo v. Mogul.
In the meantime, respondent Judge was directed to cease and desist
from further proceeding with the criminal case and to defer the issuance
of warrants of arrest against the petitioners.
Under section ll(c), Rule 116, Upon motion of the proper party, the
arraignment shall be suspended when a petition for review of the
resolution of the prosecutor is pending at either the Department of
Justice or the office of the President;
Provided, That the period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing office.
Determination of Probable Cause in Preliminary Investigation Exclusively
Pertains to Prosecutor
In a separate opinion. Chief Justice Narvasa expressed concurrence with
the disposition of the case, that the determination of whether or not
probable cause exists to warrant the prosecution in court of the
petitioners should be consigned and entrusted to the Department of
Justice as reviewer of the findings of the public prosecutor. Further
elucidating on his reasons, the Chief Justice stated:
"IN THIS SPECIAL CIVIL ACTION, THIS COURT IS BEING ASKED TO
ASSUME THE FUNCTION OF A PUBLIC PROSECUTOR.
IT IS BEING ASKED TO DETERMINE WHETHER PROBABLE CAUSE EXISTS
AS REGARDS PETITION-ERS.
More concretely, the Court is being asked to examine and assess such
evidence as has thus far been submitted by the" parties and, on the
basis thereof, make a conclusion as to whether or not it suffices 'to
engender a well founded belief that a crime has been committed and
that the respondent is probably guilty thereof and should be held for
trial.'"

It is a function that this Court should not be called upon to perform.

It is a function that properly pertains to the public prosecutor, one that,
as far as crimes cognizable by a Regional Trial Court are concerned, and
notwithstanding that it involves an adjudicative process of a sort
exclusively pertains, by law, to said executive officer, the public
prosecutor.
It is moreover a function that in the established scheme of things, is
supposed to be performed at the very genesis of indeed, prefatorily to,
the formal commencement of a criminal action.
The proceedings before a public prosecutor, it may well be stressed, are
essentially preliminary, prefatory, and cannot lead to a final, definite
and authoritative adjudgment of the guilt or innocence of the persons
charged with a felony or crime.
Whether or not that function has been correctly discharged by the
public prosecutor i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case is a
matter that the trial court itself does not and may not be compelled to
pass upon.
There is no provision of law authorizing an aggrieved party to petition
for such a determination.
It is not for instance permitted for an accused, upon the filing of an
information against him by the public prosecutor, to pre-empt trial by
filing a motion with the Trial Court praying for the quashal or dismissal
of the indictment on the ground that the evidence upon which the
same is based is inadequate.

determination of probable cause at the level of the public prosecutor,

the Department of Justice and, to a certain extent, the Regional Trial
Court.
No recourse to this Court should normally be allowed to challenge their
determinations and dispositions.
I therefore vote to refer to the Department of Justice for resolution, the
petition for the review of the Joint Resolution issued by Investigating
Prosecutor Ramon Gerona.
Finding of Probable Cause by Prosecutor To hold Accused For Trial
Distinguished From Finding of Probable Cause of Judge To Issue Warrant
The foregoing disquisition of the Chief Justice should, however, be taken
in the light of the distinction of whether the preliminary investigation is
an investigation for the determination of a sufficient ground for the filing
of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature.
It is part of the prosecution's job.
The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with
the judge, but it is only after the first kind have been exhausted, that
the second kind comes in and the Crespo rule applies.
Before that time, the pronouncement in Crespo that "any disposition of
the case as its dismissal or the conviction or acquittal of the accused
rests in the discretion of the court "is not yet relevant and applicable.

Nor is it permitted, on the antipodal theory that the evidence is in truth

adequate, for the complaining party to present a petition before the
Court praying that the public prosecutor be compelled to file the
corresponding information against the accused.

When the second kind comes in, the court must, then exercise
independent judgment, personally evaluate the documents and
evidence adduced before the Fiscal, and determine for itself the
existence of probable cause for the issuance of warrants of arrest.

(N.B.: Where, however, the public prosecutor finds that probable cause
exists as regards several suspects but unaccountably files the
information only against some, but not all of them, mandamus will lie
to compel him to include in the indictment those he has excluded.)

If there is a motion to dismiss or withdraw the information, the court

must exercise its judicial pre-rogative, make an independent
assessment of the evidence and make its own findings it not being
sufficient for the valid and proper exercise of judicial discretion merely
to accept the prosecution's word for its supposed insufficiency.

Besides, the function that this Court is asked to perform is that of a trier
of facts which it does not generally do, and if at all, only exceptionally,
as in an appeal in a criminal action where the penalty of life
imprisonment, reclusion perpetua, or death has been imposed by a
lower court (after due trial, of course), or upon a convincing showing of
palpable error as regards a particular factual conclusion in the judgment
of such lower court.
What, in sum, is being attempted in this Court is to reverse the
established and permanent order of things for the Court to act before
trial and judgment by a lower tribunal; to require it to perform the role
of trier of facts which, to repeat, it does not generally do, the issues
properly cognizable by it being normally limited exclusively to questions
of law to make it do something that even the trial court may not do at
this stage of the proceedings itself to determine the existence of
probable cause; to usurp a duty that exclusively pertains to an exclusive
official (supra, at note 3) to conduct a preliminary investigation or
review the findings and conclusions of the public prosecutor who
conducted one.

Finding by Judge of Probable Cause Not Subject to Judicial Review

Moreover, a finding probable cause by the judge for purposes of issuing
a warrant of arrest after an evaluation of the documents and other
supporting evidence, should no longer, in the meantime, be subject to
judicial review, except in the regular course of appeal, for to paraphrase
the Chief Justice in his separate opinion, that would be asking the court
to examine and assess such evidence as has thus far been submitted by
the parties, before the trial, and, on the basis thereof make a conclusion
as whether or not, it suffices to establish the guilt of the accused.
There are set of rules, and procedural mechanisms in place for the
determination of probable cause at the level of the public prosecutor,
the Department of Justice and, to a certain extent, the Regional Trial
Court. No recourse to the higher court should normally be allowed to
challenge their determinations and dispositions.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect

The matter is not within the review jurisdiction of the Court as this is
clearly specified in the Constitution, a jurisdiction which even the
Congress may not increase "without * * * (the Court's) advice and
concurrence."

The prosecutor's finding of probable cause is entitled to highest

respect.

From the pragmatic aspect, it is also an undesirable thing, for the result
could well increase the already considerable work load of the Court.

As a general rule, if the information is valid on its face and there is no

showing of manifest error, grave abuse of discretion or prejudice on
the part of public prosecutor courts should not dismiss it for want of
evidence.

Furthermore, any judgment of this Court in this action would be

inconclusive, as above intimated. It would not necessarily end the case.

This is a function that the court should not be called upon the perform.

Remedy Where Minister of Justice Refuses Filing of Case

It would not, for instance, prevent the complaining witnesses from
presenting additional evidence in an effort to have the information
ultimately filed in the proper court against the accused, or the
respondents from asking for a reinvestigation and presenting additional
or other evidence warranting the dropping of the case.
The Court would thus have wielded judicial power without a definite
settlement of rights and liabilities.
There are set rules, and procedural mechanisms in place for the

The remedy of complainant in a case where the Minister of Justice would

not allow the filing of a criminal complaint against an accused because
it is his opinion that the evidence is not sufficient to sustain an
information for the complaint with which the respondents are charged
of, is to file a civil action as indicated in Article 35 of the Civil Code,
which provides:
"ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED BY A CRIMINAL
OFFENSE, CHARGES ANOTHER WITH THE SAME, FOR WHICH NO INDE-

PENDENT CIVIL ACTION IS GRANTED IN THIS CODE OR ANY SPECIAL

LAW, BUT THE JUSTICE OF THE PEACE FINDS NO REASONABLE
GROUNDS TO BELIEVE THAT A CRIME HAS BEEN COMMITTED, OR THE
PROSECUTING ATTORNEY REFUSES OR FAILS TO INSTITUTE CRIMINAL
PROCEEDINGS, THE COMPLAINANT MAY BRING A CIVIL ACTION FOR
DAMAGES AGAINST THE ALLEGED OFFENDER.
SUCH CIVIL ACTION MAY BE SUPPORTED BY A PREPONDERANCE OF
EVIDENCE. UPON THE DEFENDANT'S MOTION, THE COURT MAY REQUIRE
THE PLAINTIFF TO FILE A BOND TO INDEMNIFY THE DEFENDANT IN
CASE THE COMPLAINT SHOULD BE FOUND TO BE MALICIOUS."
If during the pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action shall be
suspended until the termination of the criminal proceedings.
Availability of Appeal From DOJ
The Resolution of the DOJ Secretary is appealable administratively to
the Office of the President where the offense charged is punishable by
Reclusion perpetua.
(From the Office of the President the aggrieved party may file an
appeal with the Court of Appeals pursuant to Rule 43 [Supra])

corollarily, there is also no ground to issue a writ of mandamusl

Where the preliminary investigation falls under the first kind, the
decision whether or not to dismiss the complaint against private
respondents is necessarily dependent on the sound discretion of the
prosecuting fiscal, and ultimately that of the Secretary or
Undersecretary (acting for the Secretary) of Justice (which ordinarily is
not compellable by mandamus.
Exception When Mandamus Available
However, if government prosecutors make arbitrary choices of those
they would prosecute under a particular law, excluding from the
indictment certain individuals against whom there is the same evidence
as those impleaded, the fault is not in the law but in the prosecutors
themselves whose duty it is to file the corresponding information or
complaint against all persons who appear to be liable for the offense
involved, a duty that should be performed responsi-bly, without
discrimination, arbitrariness or oppression.
If that duty is not performed evenhandedly, the persons aggrieved are
not without remedy.
They may avail of the remedy of mandamus to compel compliance with
that duty by the prosecutors concerned.

Unavailability of Mandamus or Certiorari To Compel Filing of Cases

In Lim u. Court of Appeals, the Court reiterated the rule of long standing
that the matter of deciding who to prosecute is a prerogative of the
prosecuting fiscal as a quasi-judicial officer, who assumes full discretion
and control of the case and this faculty may not be interfered with, for a
prosecution may not be compelled by mandamus to file a criminal
information where he is convinced that he does not have the necessary
evidence against an individual, x x x."
While the prosecuting officer is required by law to charge all bhose who,
in his opinion, appear to be guilty, he nevertheless cannot be
compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists.
The appreciation of the evidence involves the use of discretion on the
part of the arosecutor.
The decision of the prosecutor may be reversed or modified by the
Secretary of Justice or in special cases by the President of the
Philippines.
But even the Supreme Court cannot order the pros-ecution of a person
against whom the prosecutor does not find sufficient evidence to
support at least a prima facie case.
The courts try and absolve or convict the accused but as a rule have no
part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a
grave abuse of discretion that will justify judicial intrusion into the
precincts of the executive.
But in such a case, the proper remedy to call for such exception is a
petition for mandamus, not certiorari or prohibition.
Moreover, before resorting to this relief, the party seeking the inclusion
of another person as a co-accused in the same case must first avail
itself of other adequate remedies such as the filing of a motion for such
reconsideration of decision.
The rule is thus settled that the court's duty in an appropriate case is
confined to determining whether the executive or judicial determination,
as the case may be, of probable cause was done without or in excess
of jurisdiction or with grave abuse of discretion.
Thus, although it is entirely possible that the investigating fiscal may
erroneously exercise the discretion lodged in him by law, this does not
render his act amenable to correction and annulment by the
extraordinary remedy of correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse
of discretion amounting to excess of jurisdiction.
The remedy of mandamus does not lie to compel public respondents to
file an Information against private respondents.
There being no showing of grave abuse of discretion on the part of
public respondents which would warrant the overturning of their
decision to dismiss the complaint against the private respondents,

NOTE: It was held in Yap u. IAC, that certiorari does not lie to annul the
Municipal judge's order finding probable cause that the accused
committed the crime charged and consequently ordering their arrest.
Remedies are:
(1)
(2)
(3)
(4)
(5)

posting bail;
ask provincial fiscal for reinvestigation;
petition for review;
motion to quash information;
if denied appeal, the judgment after trial.104

Exception When Certiorari as a Remedy Allowed

However, certiorari was allowed as a remedy to annul dismissal of the
petition for review by the Secretary of Justice for lack of jurisdiction
since the dispute involves an intra-corporate one which (then) falls
under the jurisdiction of the Securities and Exchange Commission.
Certiorari was allowed also to annul the Order of the ETC Judge for the
issuance of warrant of arrest on the ground that there was no probable
cause.
Summing up, the Court in Ching v. The Secretary of Justice held:
In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court held
that the acts of a quasi-judicial officer may be assailed by the aggrieved
party via a petition for certiorari and enjoined:
(a)
when necessary to afford adequate protection to the
constitutional rights of the accused;
(b)
when necessary for the orderly administration of justice;
(c)
when the acts of the officer are without or in excess of
authority;
(d)
where the charges are manifestly false and motivated by
the lust for vengeance; and
(e)
when there is clearly no prima facie case against the
accused.
The Court also declared that, if the officer conducting a preliminary
investigation (in that case, the Office of the Ombudsman) acts without
or in excess of his authority and resolves to file an Information despite
the absence of probable cause, such act may be nullified by a writ of
certiorari.
If the Secretary of Justice reverses the Resolution of the Investigating
Prosecutor who found no probable cause to hold the respondent for trial,
and orders such prosecutor to file the Information despite the absence
of probable cause, the Secre-tary of Justice acts contrary to law, without
authority and/or in excess of authority.
Such resolution may likewise be nullified in a petition for certiorari under
Rule 65 of the Revised Rules of Civil Procedure.
In the same manner, just as the Court may resolve to overrule the
finding of probable cause as in Allado v. Diokno, the Court may also
overrule the decision of the judge reversing a finding of probable cause,
also on the ground of grave abuse of discretion.

However, while probable cause should be determined in a summary

manner, there is a need to examine the evidence with care to prevent
material damage to a potential accused's constitutional right to liberty
and the guarantees of freedom and fair play and to protect the State
from the burden of unnecessary expenses in prosecuting alleged
offenses and holding trials arising from false, fraudulent or groundless
charges.

This is intended to prevent prolonged detention of a person who is

arrested without a warrant, only to turn out that the arrest was not
lawful.

Effect of Delay in Conducting Preliminary Investigation

The judge may, on the other hand, disregard the prosecutor's report and
require the submission of additional evidence to determine the
existence of probable cause. If the judge still finds no probable cause,
he shall dismiss the case.

The long delay in the termination of preliminary investigation by the

Tanodbayan is violative of the constitutional right of the accused to due
process.
Substantial adherence to the requirements of the law governing the
conduct of preliminary investigation, including substantial compliance
with the time limitation prescribed by the law for the resolution of the
case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fun-damental law.
Not only under the broad umbrella of the due process clause, but under
the constitutional guarantee of "speedy disposition" of cases as
embodied in Section 16 of the Bill of Rights (both in the 1973 and the
1987 Constitution), the inordinate delay is violative of the accused's
constitutional rights.
A delay of close to three (3) years cannot be deemed reasonable or
justifiable in the light of the circum-stances obtaining in the case.
The suggestion that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete
absence of a preliminary investigation does not warrant dismissal of the
information, is without merit.
The absence of a preliminary investigation can only be corrected by
giving the accused such investigation.
But an undue delay in the conduct of preliminary investigation cannot
be corrected, for until now, man has not yet invented a device for
setting back the time.
The principle is not, however, applicable where the delay in the
termination of the preliminary investigation cannot be imputed solely to
the prosecution but because of incidents which are attributable to the
accused and his counsel.
SEC. 5.
When Warrant of Arrest may Issue
COMMENT:
a.
The provisions of the former Section 5 relating to the preliminary investigation by a judge were deleted. Section 6 was modified
(bb) by deleting reference to preliminary investigation by the MTC are
changing the same to prosecutor accordingly transposed to Section 5.
b.
The first paragraph on the issuance of warrant of arrest by
the Regional Trial Court is in conformity with the rulings of the Supreme
Court.
The former Rule simply provides that a warrant of arrest may be issued
by the Regional Trial Court upon the filing of the information. This was
because before the 1987 constitution, a warrant of arrest may be issued
by the Regional Trial Court on the basis merely of the certification of the
investigating fiscal that there is probable cause.
Under the 1973 not only the Judge but also by any responsible officer,
which includes a fiscal, may determine Constitution probable cause.
This is no longer true. Under the 1987 Constitution it is only the judge
who is authorized to determine personally the existence of probable
cause.
Hence, jurisprudence evolved, that for purposes of determining
probable cause for the issuance of a warrant of arrest, the judge must
personally evaluate the prosecutor's report, the evidence adduced
during the preliminary investigation.

If the accused had already been arrested, the judge must within the
same period often (10) days determine the existence of probable cause
and issue an order of commitment.

c.
In cases falling under the original jurisdiction of the
municipal trial court, which require a preliminary investigation, the
preliminary investigation shall be conducted by the prosecutor
1)
If such preliminary investigation is conducted by a
prosecutor, the procedure in the preceding section (5a) on the issuance
of a warrant arrest shall be applied upon the filing ol the information.
Under this situation, probable cause may be determined by the Judge on
the basis of the evidence adduced before the prosecutor, which
conducted the preliminary investigation.
2)
Subsection (c) is new provision. When warrant of arrest not
necessary. A warrant of arrest shall not issue if the accused is already
under detention pursuant to a warrant issued by the municipal trial
court in accordance with paragraph (b) of this section, or if the
complaint or information was filed pursuant to section 6 of this Rule or is
for an offense penalized by fine only.

(1)
personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable
cause and, in the basis thereof, issue a warrant of arrest; or
(2)
if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting
affidavits of witnesses ;o aid him in arriving at a conclusion as to the
existence of probable cause.
Sound policy dictates this procedure, otherwise judges would he unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
b.
The doctrine was reiterated in Enrile v. Salazar, holding that
it is not the unavoidable duty of the judge to make a personal
examination, it being sufficient that he follows established procedure
by personally evaluating the report and the supporting documents
submitted by the prosecutor.
* * * the Judge does not have to personally examine the complainant
and his witnesses.
The Prosecutor can perform the same functions as a commissioner for
the taking of the evidence.
However, there should be a report and necessary documents supporting
the Fiscal's bare certification.
All of these should be before the Judge.

The court shall then proceed in the exercise of its original jurisdiction.
Under this subsection, a warrant of arrest need not be issued if the
accused is already under detention pursuant to a warrant issued by the
Municipal Trial Court in accordance with section (5b) of this rule or if the
complaint or information was filed pursuant to section 6 hereof, the
court shall then proceed in the exercise of its original jurisdiction.

The extent of the Judge's personal examination of the report and its
annexes depends on the circumstances of each case.

the seminal case of Soliven v. Makasiar (supra), in the issuance of

warrants of arrest by the RTC. Petitioners in the Webb case challenged
the validity of the warrants of arrest issued in said case on the following
grounds:
(1)
the issuance of the warrants of arrest was made in a matter
of few hours;
(2)
the failure of the judge to issue orders of arrest;
(3)
the records submitted to the trial court were incomplete and
insufficient from which to base a finding of probable cause; xxx.
petitioners postulate that it was impossible to conduct a searching
examination of witnesses and evaluation of the documents on the part
of the judge.
After pointing out the differences in the issuance of a search warrant
and a warrant of arrest and its ruling in Soliven v. Makasiar (supra), the
Supreme Court stressed that before issuing warrants of arrest, judges
merely determine personally the probability, and not the certainty of
guilt of an accused.
In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause.
They just personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial
evidence.
The sufficiency of the review process cannot be measured by merely
counting minutes and hours.
The fact that it took the judges a few hours to review and affirm the
probable cause determination of the DOJ panel does not mean they
made no personal evaluation of the evidence attached to the records of
the case.

We cannot determine beforehand how cursory or exhaustive the

Judge's examination should be.

Explaining its ruling in Allado u. Diokno, which reversed the trial court's
finding of probable cause and ordered the outright dismissal of the
case, the Court stated that the Allado ruling is predicated on the utter
failure of the evidence to show the existence of probable cause.

Warrant of Arrest, Defined

The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution.

Not even the corpus delicti of the crime was established by the
evidence of the prosecution in that case.

A warrant of arrest is a legal process issued by competent authority,

directing the arrest of a person or persons upon grounds stated therein.

It can be as briefer as detailed as the circumstances of each case

require.

It is usually directed to regular officers of the law, but occasionally, it is

issued to a private person named in it.

To be sure, the Judge must go beyond the Pros-ecutor's certification and

investigation report whenever necessary.

Given the clear insufficiency of the evidence on record, the court there
stressed the necessity for the trial judge to make a further personal
examination of the complainant and his witnesses to reach a correct
assessment of the existence or non existence of probable cause before
issuing warrants of arrest against the accused.

John Doe Warrants

He should call for the complainant and witnesses themselves to

answer the court's probing questions when the circumstances of the
case so require.

Warrant of arrests issued against "John Doe" whom the witnesses to the
complaint could not identify are in the nature of a general warrant, one
of a class of writs long proscribed as unconstitutional and once
anathematized as "totally subversive of the liberty of the subject."
Such warrants are void because they violate the constitutional
injunction that warrants of arrest should particularly describe the
person or persons to be seized.
Judge May No Longer Rely on FiscaLs Certification
The earlier rulings of the Supreme Court which allows the Judge in the
exercise of its discretion, whether or not to determine the existence of
probable cause and issue a warrant of arrest on the basis of the Fiscal's
Certification which were capsulized in Circular No. 12, dated November
30, 1987 have in effect been abandoned by the Supreme Court in the
light of the 1987 Constitution which provides that no search warrant or
warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
a.
The withdrawal started with the case of Soliven v. Makasiar6
decided after the effectivity of the 1987 Constitution where the
Supreme Court then held that the addition of the word "personally"
after the word "determined" underscores the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause.

These jurisprudence are now capsulized in the present rule.

Under this rule, the judge must determine the existence of probable
cause within ten (10) days from the filing of the information.

Following established doctrine and procedure, he shall:

In satisfying himself of the existence of probable cause for the issuance

of a warrant of arrest, the judge is not required to personally examine
the complainant and his witnesses.

It is the exclusive and personal responsibility of the issuing judge to

satisfy himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses.
Following established doctrine and procedure, he shall:
(1)
personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest; or
(2)
if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.

The case at bar rests on a different factual setting.

The various types of evidence extant in the records of the case provide
substantial basis for a finding of probable cause against the
petitioners.
The Court concluded:
"Clearly then, the Constitution, the Rules of Court, and our case law
repudiate the submission of petitioners that respondent judges should
have conducted searching examination of witnesses before issuing
warrants of arrest against them.
They also reject petitioners contention that a judge must first issue an
order of arrest before issuing a warrant of arrest.
There is no law or rule requiring the issuance of an Order of Arrest prior
to a warrant of arrest."
Outright Dismissal

In Cruz v. People (supra), petitioner would have respondent court order

the production of the records of the preliminary investigation in its
determination of the existence of probable cause for the issuance of the
warrant of arrest.
The Supreme Court held: "First and foremost, as hereinabove stated, in
a preliminary examination for the issuance of a warrant of arrest, the
court is not tasked to review in detail the evidence submitted during the
preliminary investigation.
It is sufficient that the judge personally evaluates the report and
supporting documents submitted by the prosecution in determining
probable cause."
In Webb u. De Leon, the Supreme Court again reiterated the doctrine in

The absence of probable cause for the immediate issuance of a warrant

of arrest is not a ground for the quashal of the information but is a
ground for the dismissal of the case under Section 5[6], Rule 112 which
is without prejudice.
The trial court is mandated to immediately dismiss the case upon
finding that no probable cause exists to issue a warrant of arrest and
after having evaluated the resolution of the fiscal and supporting
information.
The Need for Personal Evaluation of Documents Not Merely Resolution
The absence or presence of probable cause is to be determined from the
material avernments of the information the appendages thereof as

enumerated in Rule 112, Section 8 of the Rules.

The Courts attention was again focused on the issuance of warrants of
arrest in the en bane decision in Roberts u. Court of Appeals, where the
court emphasized the need for the court prior to the issuance of the
warrant of arrest to evaluate "the affidavits, the transcript of
stenographic notes (if any), and all other supporting documents
behind the Prosecutor's certification which are material in assisting the
Judge to make his determination of probable cause."
The teachings then of Soliven, Inting, Lim, Allado, and Webb, reject the
proposition that the investigating prosecutor's certification in an
information or his resolution which is made the basis for the filing of the
information, or both, would suffice in the judicial determination of
probable cause in the judicial determination of probable cause for the
issuance of a warrant of arrest.
The court went on to explain that in Webb, this Court assumed that
since the respondent Judges had before them not only the 26 page
resolution of the investigating panel, but also the affidavits of the
prosecution witnesses and even the counter-affidavits of the
respondents, they (judges) made a personal evaluation of the evidence
attached to the records of the case.
On the Need to Make Separate Finding of Probable
It was held that where, the information was not accompanied by any
document, and there is nothing in the records or evidence supporting
the prosecutor's finding of probable cause except the Joint Resolution as
bases thereof and does not have the records or evidence supporting the
prosecutor's finding of probable cause, the Court declared the Order for
the issuance of the warrant of arrest as invalid.
The court found it strange that there is no specific finding of probable
cause but a mere directive to issue the warrants of arrest.
The Court rejected the argument that the directive presupposes a
finding of probable cause.
"Compliance with a constitutional requirement for the protection of
individual liberty cannot be left to presupposition, conjecture or even
convincing logic."
The Court in Roberts rejected the court of appeals' finding that the Joint
Resolution is sufficient in itself to have been relied upon by the
respondent judge in convincing himself that probable cause indeed
exists for the purpose of issuing the corresponding warrants of arrest.
Thus: "To bolster its finding, the Court of Appeals held that the mere
silence of the records or the absence of any express declaration in the
questioned order of May 17, 1993 as to where the respondent Judge
based his finding of probable cause does not give rise to any adverse
inference on his part.
The fact remains that the Joint Resolution was at respondent Judge's
disposal at the time he issued the Order for the issuance of the warrants
of arrest.

arrest only after June 21, 1993. If he did read the Joint Resolution and, in
so reading, found probable cause, there was absolutely no reason at
all to delay for more than one month the issuance of warrants of arrest.
The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while for the
DOJ to resolve the petition for review.

The foregoing statements would appear to negate the pronouncement

in Webb that there is no need for the court to first issue an order of
arrest before issuing a warrant of arrest, and the presumption of
regularity resorted to in justifying the issuance of a warrant of arrest
from the mere availability of the records before the court in Enrile v.
Salazar (supra), even in the absence of a separate finding of probable
cause.

There is nothing in Soliven that requires prosecutors to physically

submit to the judge the complete records of the preliminary
investigation especially if they are voluminous.

The point is: he cannot rely solely and entirely on the prosecutor's
recommendation.

The foregoing principles refer to the findings of the prosecutor for the
purpose of filing the case in court which should be distinguished from
the determination by the judge of probable cause foi the issuance of a
warrant of arrest.

Nor is there anything in Soliven that holds the omission to physically

submit the complete records of the case would constitutionally infirm
a finding of probable cause by a judge even if it was made on the basis
of an exhaustive prosecutor's report or resolution.

Although the prosecutor enjoys the legal presumption of regularity in

the performance of his official duties and functions, which in turn gives
his report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the
issuance of warrants of arrest.

Thus, although the prosecutor enjoys the legal presumption of regularity

in the performance of his official duties, which in turn gives his report
the presumption of accuracy, nothing less than the fundamental law of
the land commands the judge to personally determine probable cause in
the issuance of warrants of arrest.

Indeed, in Webb v. de Leon, we sustained the finding of probable cause

made by the trial judge even if the complete records of the preliminary
investigation were not elevated to the said judge.

This Court has consistently held that a judge fails in his bounden duty if
he relies merely on the certification or the report of the investigating
officer.

A judge fails in this constitutionally mandated duty if he relies merely on

the certification or report of the investigating officer.

Justice Puno further maintains that there was no need for respondent
Judge to make a finding of probable cause.

Thus, a warrant of arrest is void where the court did not per-sonally
determine the existence of probable cause but based the same merely
on: (1) the resolution of the Panel of Investigators of the Ombudsman
recommending the filing of the information, and (2) memorandum of the
office of the Special Prosecutor denying the existence of a prejudicial
question.

"When Judge Asuncion issued the warrants of arrest against petitioners,

I assume as did the respondent Court of Appeals, that he had studied
the Information and 17-page Resolution of the prosecutors and that he
agreed with the prosecutor's findings of probable cause.

First, The determination of probable cause by the prosecutor is for a

purpose different from that which is to be made by the judge, Whether
there is reasonable ground to believe that the accused is guilty of the
offense charged and should be held for trial is what the prosecutor
passes upon.

Nothing in the
assumptions.

The judge, on the other hand, determines whether a warrant of arrest

should be issued against the accused, i.e., whether there is a necessity
for placing him under immediate custody in order not to frustrate the
ends of justice.

And, for an undivinable reason, he directed the issuance of warrants of

Here, the public prosecutors do not decide whether there is evidence

beyond reasonable doubt of the guilt of the person charged; they
merely determine "whether there is sufficient ground to engender a
well-founded belief that a crime x x x has been committed and that the
respondent is probably guilty thereof, and should be held for trial."

What is required, rather that the judge must have sufficient supporting
documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of stenographic notes, if any)
upon which to make his independent judgment or, at the very least,
upon which to verify the findings of the prosecutor as to the existence of
probable cause.

The Court expressed its inability to agree with this disquisition, for it
merely assumes at least two things: (1) that respondent Judge Asuncion
had read and relied on the Joint Resolution; and (2) he was convinced
that probable cause exists for the issuance of warrants of arrest
against the petitioners.

In his assailed order, the respondent Judge made no mention of the Joint
Resolution, which was attached to the records of Criminal Case No. Q93-43198 on 22 April 1993. Neither did he state, he found probable
cause for the issuance of warrants of arrest.

The reason is found in the nature and the objective of a preliminary

investigation.

Soliven only held that it is the personal responsibility of the judge to

determine probable cause on the basis of the report and supporting
documents submitted by the fiscal; that he must independently
evaluate the report and supporting documents if he finds no probable
cause on the basis thereof, he can require submission of additional
supporting affidavits of witnesses.

SUMMARY OF PRINCIPLES

these

This responsibility of determining personally and independently the

existence of nonexistence of probable cause is lodges in him by no less
than the most basic law of the land. Parentheti-cally, the prosecutor
could ease the burden of the judge and speed up the litigation process
by forwarding to the latter not only the information and his bare
resolution finding probable cause, but also sc much of the records and
the evidence on hand as to enable His honoi to make his personal and
separate judicial finding on whether tc issue a warrant of arrest.

Indeed, it would be unfair to expect, the prosecution to present all the

evidence needed to secure the conviction of the accused upon the filing
of the information against the latter.

Evidentiary matters must be presented and heard during the trial.

Every reasonable intendment will be made in support of the

presumption, and in case of doubt as to an officer's act being lawful or
unlawful, it should be construed to be lawful."

for

Hence, he must have supporting evidence, other than the pros-ecutor's

bare report, upon which to legally sustain his own findings on the
existence (or nonexistence) of probable cause to issue an arrest order.

Lastly, it is not required that the complete or entire records oi the case
during the preliminary investigation be submitted to and examined by
the judge.

Apparently to reconcile these conflicting views, the Court en bane in Ho

v. People, laid down the following principles:

basis

Corollary to this principle, the judge should not override the public
prosecutor's determination of probable cause to hold an accused for
trial, on the ground that the evidence presented to substantiate the
issuance of an arrest warrant was insufficient, as in the present case.

In his dissent with the concurrence of Justice Mendoza, Justice Reynato

Puno found as sufficent basis to justify a finding of probable cause the
17-page Joint Resolution of the Investigating Prosecutor, and pointed
out that Soliven and other related cases did not establish the absolute
rule that unless a judge has the complete records of the preliminary
investigation before him, he cannot lawfully determine probable cause
and issue a warrant of arrest.

And this presumption prevails until it is overcomed by clear and

convincing evidence to the contrary.

reasonable

Obviously and understandably, the contents of the prosecutor's report

will support his own conclusion that there is reason to charge the
accused of an offense and hold him for trial.

Dissent on Need to Issue Separate Order

It is unnecesary for him to issue an Order just to reiterate the findings of

the prosecutors, xxx'

provides

Thus, "Verily, a judge cannot be compelled to issue a warrant of arrest

if he or she deems that there is no probable cause for doing so.

However, the judge must decide independently.

All told, it would seem from the foregoing discourse of the court that
there is need to issue an order finding probable cause prior to the
issuance of a warrant of arrest.

After all, respondent Judge enjoys in his favor the presumption of

regularity in the performance of his official duties.

records

on the report of the prosecutor in finding probable cause to justify the

issuance of a warrant of arrest.

We do not intend to unduly burden trial courts by obliging them to

examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused.

The court, however clarified that: "It is not required that the issuing
judge categorically state in his resolution that he personally determined
the existence of probable cause.
It is enough that it may easily be gleaned from the resolution directing
the issuance of the warrant that he performed his duty in accordance
with the constitutional mandate on the matter.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect

Therefore, if the information is valid on its face, and there is no

showing of manifest error, grave abuse of discretion and prejudice on
the part of the public prosecutor, the trial court should respect such determination.
The court stressed that its rulings in Allado v. Diokno and Salonga v.
Pano, which set aside the trial court's finding's on the existence of
probable cause, are exceptions to the general rule and may be invoked
only if similar circumstances are clearly shown to exist.
Ruling Does Not Deviate from Need of Personal Evaluation

In merely stating that he had no reason to doubt the validity of the

certification made by the investigating prosecutor, the judge has
abdicated his duty under the constitution to determine on his own the
issue of probable cause before issuing a warrant of arrest.
Consequently, the warrant of arrest should be declared null and void.
In Cojuangco v. Sandiganbayan, the court declared the warrant of
arrest issued in said case void because the respondent court did not
personally determine the existence of probable cause but based the
same merely on:
(1)
the resolution of the Panel of Investigators of the
Ombudsman recommending the filing of the information and
(2)
memorandum of the Office of the Special Prosecutor
denying the existence of a prejudicial questions.

The court en banc summed up the following principles:

Thus, even il both should base their findings on one and the same
proceeding 01 evidence, there should be no confusion as to their
distinct objectives,
Second, since their objectives are different, the judge cannot rely solely

The prosecutor's finding of probable cause is entitled to highest

respect.

The Judge may order the production of the records and determine on
the basis thereof the existence of probable cause or return the record
and direct the Fiscal to conduct further investigation.

This is a function that the court should not be called upon to perform.
Effect of Refusal by Prosecution to Adduce Additional Evidence
As a general rule, if the information is valid on its face and there is no
showing of manifest error, grave abuse of discretion or prejudice on
the part of public prosecutor, courts should not dismiss it for want of
evidence.
While recognizing that the determination by the Prosecutor of probable
cause to hold the accused for trial is an executive function as
distinguished from the determination by the judge in the issuance of a
warrant of arrest is a judicial function, which must be determined
separately, the Court, nonetheless ruled that the findings of the
prosecutor is entitled to the highest respect.

The Court held that the trial court may disregard the Fiscal's report and
require submission of supporting affidavits of witnesses.
The failure or refusal of the petitioner to present further evidence,
although a good ground for the respondent Judge not to issue a
warrant of arrest, is not a legal cause for dismissal.
The judge was directed to proceed with the case, it being understood
that, if within ten (10) days after notice by the judge, the petitioner fails
or refuses to present other evidence, the dismissal will stand for lack of
prosecution.

However, va.Alla.do v. Diokno, it was held that the Judge may dismiss
the case outright for lack of probable cause.
Determination of Probable Cause for Issuance of Warrant of Arrest
No Need of Conducting Hearing For Judicial determi-nation of Probabe
Cause to Issue Warrant
Under the present rule the Rule does not require case to be set for
hearing to determine probable cause for the issuance of a warrant for
the arrest of the accused.

finding that no probable cause exists to issue a warrant of arrest and

after having evaluated the resolution of the fiscal and supporting
information.
If the Court may motu propio dismiss the case for lack of probable cause
then it could do so when a motion to dismiss on such ground is filed as
was done va.Allado u. Diokno.
In cases governed by the Rule on Summary Procedure, the court may
likewise dismiss the case outright, for patently being without basis or
merit and order the release of the accused if in custody.

thereof later on with the same right to cross-examine the witnesses

against him: Provided, fi-nally, That notwithstanding such waiver, the
said investigation must be terminated within seven days from its
inception."
The rule as now modified refers to all persons lawfully arrested without
a warrant for an offense which requires a preliminary investigation.
There are two (2) situations contemplated under this rule:

COMMENT:

First, is when the person is lawfully arrested without a warrant for an

offense which requires a preliminary investigation, and no complaint or
information has yet been filed, in which case, he may ask for a
preliminary investigation by signing a waiver of the provisions of Article
125 of the Revised Penal Code. To prevent pro longed detention pending
preliminary investigation, the accused may apply for bail even if no
information have been filed.

He may either dismiss the case outright or to aid him in determining the
existence of probable cause; require additional evidence within then
(10) days from notice should the Judge still find no probable cause, he
shall dismiss the case.

THE FORMER RULE EMBRACED ONLY LAWFUL ARRESTS FOR CRIMES

COGNIZABLE BY THE REGIONAL TRIAL COURT.

In any event the preliminary investigation must be terminated within

fifteen (15) days from its inception.

The Court in Government of the United States of America v. Hon.

Guillermo G. Purganan, held that:

In view, however, of the expanded cases, which require preliminary

investigation even of cases that are not cognizable by the Regional Trial
Court as now defined in section 1 hereof, the present section was
accordingly amended.

Second, when a person is lawfully arrested without a warrant for an

offense which requires a preliminary investigation and the complaint or
information was filed by the offended party, peace officer or fiscal
without a preliminary investigation in which case the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same right to
adduce evidence in his favor in the manner prescribed in the Rule.

If the judge finds probable cause on the basis thereof, he shall issue a
warrant of arrest or, if the accused has already been arrested, a
commitment order otherwise.

To determine probable cause for the issuance of arrest warrants, the

Constitution itself requires only the examination under oath or
affirmation of complainants and the witnesses they may produce.
There is no requirement to notify and hear the accused before the
issuance of warrants of arrest.
In Ho v. People and in all the cases cited therein, never was a judge
required to go to the extent of conducting a hearing just for the purpose
of personally determining probable cause for the issu-ance of a warrant
of arrest.
All we required was that the "judge must have sufficient supporting
documents upon which to make his independent judgment, or at the
very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause."
In Webb v. De Leon, the Court categorically stated that a judge was not
supposed to conduct a hearing before issuing a warrant of arrest:
"Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of guilt of an
accused.
In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause.
They just personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial
evidence."
At most, in cases of clear insufficiency of evidence on record, judges
merely further examine complainants and their witnesses.
Validating the act of respondent judge and instituting the practice of
hearing the accused and his witnesses at this early stage would be
discordant with the rationale for the entire system.
If the accused were allowed to be heard and necessarily to present
evidence during the prima facie determination for the issuance of a
warrant of arrest, what would stop him from presenting his entire
plethora of defenses at this stage if he so desires in his effort to
negate a prima facie finding?
Such a procedure could convert the determination of a prima facie
case into a full-blown trial of the entire proceedings and possibly make
trial of the main case superfluous.
This scenario is also anathema to the summary nature of extraditions.
The Accused is not, however, Prohibited from Filing a Motion to Dismiss
on the Ground of Lack of Probable Cause
It has been held that the absence of probable cause for the immediate
issuance of a warrant of arrest is not a ground for the quashal of the
information but is a ground for the dismissal of the case under Section 6
(now Sec. 5), Rule 112 which is without prejudice.
The trial court is mandated to immediately dismiss the case upon

SEC. 6.
When accused lawfully arrested without warrant

Under the amendment, a complaint or information may only be filed

after an inquest conducted in accordance with existing rules;
Provided, however, That in the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace
officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
The former rule allows a direct filing in court in cases of lawful arrest
without a warrant except in Metropolitan Manila and chartered cities,
without an inquest.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended.
Under the former rule, the waiver may be made with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person
of his choice.
Under the amended rule, the waiver may be made only IN THE
PRESENCE OF HIS COUNSEL pursuant to Section 2 ofRA. No. 7438.2
The former rule provides that if a lawyer is unavailable, a responsible
person of his own choice would be sufficient.
This was, however deleted in view of the provisions of section 2 of R.A.
No. 7438 limiting the assistance to that of a lawyer, which in this case
appears to be restrictive.

The Inquest
Inquest is an informal and summary investigation conducted by a public
prosecutor in criminal case involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court for the
purpose of determining whether or not said persons should remain
under custody and correspondingly be charged in court.
To safeguard the rights of the accused who was arrested without a
warrant, Department Circular No. 61, dated September 21, 1993,
requires the arresting officer to bring the arrestee before the inquest
fiscal who shall determine whether or not said person should remain in
custody and correspondingly be charged in court or that he be released
either for lack of evidence or further investigation.
The custodial investigation report shall be reduced to writing by the
investigating officer, provided that before such report is signed, or
thumbmarked if the person arrested or detained does not know how to
read and write, it shall be read and adequately explained to him by his
counsel or by the assisting counsel provided by the investigating
officer in the language or dialect known to such arrested or detained
person, otherwise, such investigation report shall be null and void and of
no effect whatsoever.
The rule is not applicable if the person is not lawfully arrested without a
warrant
It was thus held in Go v. Court of Appeals, Larranaga v. Court of Appeals:

If the case has been filed in court without a preliminary inves-tigation

the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce
evidence in his DEFENSE AS provided in this Rule.
The request for preliminary investigation should be made before plea,
otherwise the right to ask for a preliminary investigation shall be
deemed waived.
NOTES
The rule was originally taken from section 15 of Rule 112, "where the
accused is detained without a warrant for his arrest" which in turn was
taken from Republic Act No. 409, as amended by Republic Act No. 1201,
which reads:
"In all cases brought to the Office of the City Fiscal involving crimes
cognizable by the Court of First Instance, where the accused is not
already in the legal custody of the police, no complaint or information
shall be filed without first giving the accused a chance to be heard in a
preliminary investigation, where such accused can be subpoenaed and
appears before the investigating fiscal, with the right to cross-examine
the com-plainant and his witnesses: Provided, That when the accused is
detained, he may ask for a preliminary investigation, but he must sign a
waiver of the provisions of Article One Hundred Twenty-five of the
Revised Penal Code, as amended: And pro-vided, further, That if the
case has already been filed in court, he may ask for a reinvestigation

"WHEN THE POLICE FILED A COMPLAINT FOR FRUSTRATED HOMICIDE

WITH THE PROSECUTOR, THE LATTER SHOULD HAVE IMMEDIATELY
SCHED-ULED A PRELIMINARY INVESTIGATION TO DETERMINE WHETHER
THERE WAS PROBABLE CAUSE FOR CHARGING PETITIONER IN COURT
FOR THE KILLING OFELDON MAGUAN.
Instead, the Prosecutor proceeded under the erroneous supposition that
Section 7 of Rule 112 was applicable and required petitioner to waive
the provisions of Article 125 of the Revised Penal Code as a condition for
carrying out a preliminary investigation.
This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without any
conditions.
Moreover, since petitioner had not been arrested, with or without a
warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation."
However, since an information had already been filed and the absence
of a preliminary investigation does not impair the validity of the
information or affect the jurisdiction of the court, the Supreme Court
instead of ordering the dismissal of the case directed the fiscal to
conduct a preliminary investigation and allowed the accused in the
meantime to post bail."

Period to File Motion For Preliminary InvestigatioN

The period for filing a motion for preliminary investigation after an
information has been filed against an accused who was arrested without
a warrant has been characterized as mandatory by the court.
In People v. Figueroa, the Supreme Court applied a substantially similar
rule held that as the accused in that case did no exercise his right within
the five-day period, his motion for reinvestigation was denied.
The case should be distinguished from Rolito Go v. Court o, Appeals
(supra).
In said case, Go not only asked for preliminary investigation on the very
day the information was filed, but he is also clearly entitled to a
preliminary investigation.
Section 7, Rule 112 is clearly not applicable because Go was not lawfully
arrested, the right to demand preliminary investigation was subject to
the condition that he should claim it seasonably. He did not do so.
Accordingly, he
investigation

effectively

waived

his

right

to

preliminary

The Right To Bail Pending Preliminary Investigation

It may be noted that under Section 7 (now Sec. 6) of Rule 112, i person lawfully
arrested may post bail before the filing of the information or even after its filing
without waiving his right to preliminary investigation, provided that he asks for a
preliminary investigation by the proper officer within the period fixed in the said rule."
Waiver of Illegal Arrest
The accused may be estopped to question the illegality of the arrest by entering a
plea of not guilty without moving to quash th information on such ground.
Thus, any irregularity attendant to an arrest was cured when accused voluntarily
submitted himself to the jurisdiction of the Court by entering a plea of not guilty "and
[by] participating in the trial."
Where the Warrant of Arrest is void for want of probable cause, the appropriate
remedy is certiorari and prohibition with prayer for the issuance of a TRO rather than
actively participate in the proceeding.

SEC. 7.
Records
SEC. 8.
Cases not requiring a preliminary investigation nor covered by the Rule
on Summary Procedure
Warrant of Arrest
Investigation

in

Cases

which

Do

Not

Require

Preliminary

In cases which falls under the original jurisdiction of the municipal trial
court, which does not require a preliminary investigation nor does it
fall under the Rules on Summary Procedure, the case may either be filed
in court by a prosecutor or directly filed in court by the offended party.
The amended rule in the issuance of warrants of arrest by the Municipal
Trial Courts for actions filed in the exercise of its original Jurisdiction
provides for two distinct situations.
The case may be filed directly in the municipal trial court or by the
prosecutor in Metro Manila or other chartered cities.
If the complaint is filed with the PROSECUTOR for offenses which do not
require a preliminary investigation the procedure outlined in Section
3(a) of this Rule shall be observed.
Under Section 3(a), the complaint shall state the known address of the
respondent and be accompanied by affidavits of the complainant and
his witnesses as well as other supporting documents RELIED UPON BY
HIM TO ESTABLISH PROBABLE CAUSE, in such manner of copies as there
are respondent, plus two (2) copies for the official file.
The said affidavits shall be sworn to before any PROSECUTOR, state
prosecutor or government official authorized to administer oath, or, in
their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they
voluntarily executed and under-stood their affidavits.
The prosecutor shall take appropriate action based on the affidavits and
other supporting documents submitted by the complainant WITHIN
TEN (10) DAYS FROM ITS FILING.
In other words, he may either dismiss the case or file it in court without

any further investigation since this refers to cases that are not entitled
to preliminary investigation.
The Prosecutor has no authority to issue a warrant of arrest.
It is only the court that may do so.
A case cognizable by the Municipal Trial Court may, however, be filed in
court directly by the complainant or by the prosecutor, without
preliminary investigation.

Where the respondent judge personally examined the witnesses for the
prosecution adopting as his own personal examination the questions
asked by the investigating officer as appearing in the written
statements, which he read over again to the witnesses together with the
answers given therein, asking the witnesses whether said answers were
theirs, and whether the same answers were true, to which the witnesses
answered in the affirmative, the court considered this as sufficient.
Republic Act No. 3838 does not prohibit the municipal judge from
adopting the questions asked by a previous investigator.

important; there must have been an intent an the part of one of them to
arrest the other, and an intent on the part of the other to submit, under
the belief and impression that submission was necessary.

policeman to resort to extreme means, which, although it proved to be

fatal, was justified by circumstances.

There can be no arrest when the person sought to be arrested is not

conscious of any restraint of his liberty.

In another case, the deceased was creating a disturbance when the

defendant, a policeman, attempted to arrest him and take him to the
presidensia.

But the mere submission of a person whether pretended or actual, will

not constitute an arrest, if he is not at the time actually within the power
of the officer.

The deceased resisted the arrest by striking the accused with a calicut
whereupon the latter shot him with his revolver causing the former's
death.

If an officer having authority to make an arrest lays his hand upon the
person of the prisoner, however lightly, with the intention of taking him
into custody, there is an arrest, even though he has not succeeded in
stopping or holding him even for an instant.

The Court held: "Although a police officer may employ force to

overcome active resistance to an arrest, it is not reasonably necessary
to kill his assailant" to repel an attack with a calicut, and only an
incomplete defense is made out.

Meaning of Searching Questions and Answers

An arrest signifies restraint on person, depriving one of his own will and
liberty, binding him to become obedient to the will of the
law.

The term "searching questions and answers" means only, taking into
consideration the purpose of the preliminary examination which is to
determine "whether there is a reasonable ground to believe that an
offense has been committed and the accused is probably guilty
thereof so that a warrant of arrest may be issued and the accused held
for trial," such questions as have tendency to show the commission of a
crime and the perpetrator thereof.

A police officer is not justified in using unnecessary force in effecting

arrest or in treating with wanton violence the arrested person or in
resorting to dangerous means when the arrest could be affected
otherwise.

No Unnecessary or Unreasonable Force shall be Used in Making Arrest

Meaning of Examination under Oath

Options of the Judge
The Judge has three (3) options in the issuance of a warrant of arrest:
A.
Where filed directly with the municipal trial court. if the
complaint or information is filed directly with the municipal trial court.

The finding of the trial court that the complaint was "supported by
statements of the witnesses under oath" and the record also shows the
sworn statements of the witnesses to have been subscribed and sworn
to before respondent Judge, satisfies the second requirement.

The procedure in section 3(a) of this rule shall be observed.

If the judge finds no sufficient ground to hold the respondent for trial, he
shall dismiss the complaint or information.
Otherwise, he shall issue a warrant of arrest or a commitment order if
the accused had already been arrested, after personally examining in
writing and under oath the complainant and his witnesses in the form of
searching questions and answers, or
B.
He may personally evaluate the affidavits and supporting
evidence attached to the complaint or information if on the basis
thereof he finds no probable cause, he may require the submission of
additional evidence to aid him in determining the existence of
probable cause.
C.
However, instead of issuing a warrant of arrest, the court
may issue summons if it is satisfied that there is no necessity for
placing the accused under immediate custody.
No warrant of arrest shall issue for offenses which fall under the original
jurisdiction of the court if such warrant had already been issued during
the preliminary investigation by the same court pursuant to section 6(b)
[now sec. 5] of this rule the court shall instead proceed to hear the case
in the exercise of its original jurisdiction.
No warrant of arrest may be also be issued for cases covered by the
Revised Rule on Summary Procedure.
The No Necessity Rule
The "necessity" rule restores the 1985 amendment which was deleted in
1988.

What would be searching questions would depend on what is sought to

be inquired into, such as: the nature of the offense, the date, time and
place of its commission, the possible motives for its commission; the
subject, his age, education, status, financial and social circumstances,
his attitude toward the investigation, social attitudes, opportunities to
commit the offense; the victim, his age, status, family responsibilities,
financial and social circumstances, characteristics, etc. the points that
are the subject of inquiry may differ from case to case.
The questions, therefore, must to a great degree depend upon the
judge making the investigation.
At any rate, the court a quo found that respondent Judge was
"satisfied that the questions and answers contained in the sworn
statements taken by T-Sgt. Patosa partake of the nature of his searching
questions and answers as required by law," so the respondent Judge
adopted them."

Police Officer Must Stand His Ground

Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm, yet he is never justified
in using unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected
otherwise.
The doctrine is restated in the Rules of Court thus: "No violence or
unnecessary or unreasonable force shall be used in making an arrest,
and the person arrested shall not be subject to any greater restraint
than is necessary for his detention."
And a peace officer cannot claim exemption from criminal liability if he
uses unnecessary force or violence in making an arrest.
Arrest of Notorious Criminal
The court noted in one case: "It is suggested that a notorious criminal
'must be taken by storm' without regard to his right to life which he has
by such notoriety already forfeited.

Preliminary Examination May be Ex-parte

Preliminary examination is not an essential part of due process of law.
Preliminary examination may be conducted by the municipal judge,
prior to the issuance of the warrant of arrest, either in the presence, or
in the absence, of the accused.

The statement that the judge determines whether there is need for
placing the accused under custody in order not to frustrate the ends of
justice only applies to warrants of arrest issued by the Municipal Judge
during a preliminary investigation.

There is no need of warrant or bail in cases covered by the Rule on

Summary Procedure.

Discretion to Dispense with Searching Questions

RULE 113
ARREST

In U.S. v. Mojica One of the Constabulary soldiers, the deceased, was

placed under arrest. He resisted and finally succeeded in freeing
himself. He then struck a policeman with the fist, drew a mess kit knife
and brandishing it attacked the accused, another policeman. The
accused retreated a step or two, drew his revolver and fired killing the
soldier.
Held: A police officer, in the performance of his duty, must stand his
ground and cannot, like a private individual, take refuge in flight, his
duty requires him to overcome his opponent. The force requires him to
overcome his opponent.
The force which he may exert therefore differ somewhat from that
which may ordinarily be offered in self-defense.
Bearing this in mind, we do not think that the appellant in using his
revolver against the deceased can be said to have employed
unnecessary force.
The deceased attacked him with a deadly weapon; he might perhaps,
have saved himself by running away, but this his duty forbade.
Was he to allow himself to be stabbed before using his arms?

This Court may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors in
danger of imminent attack.
Otherwise, this court cannot see how, as in the present case, the mere
fact of notoriety can make the life of a criminal a mere trifle in the
hands of the officers of the law.
Notoriety rightly supplies a basis for redoubled official alertness and
vigilance; it never can justify precipitate action at the cost of human life.

It may, perhaps, be argued that the appellant might have used his
club, but a policeman's club is not a very effective weapon as against a
drawn knife and a police officer is not required to afford a person
attacking him the opportunity for a fair and equal struggle.
SEC. 3.
Duty of Arresting Officer
COMMENT:

The foregoing provisions have provided an alternative mode of

determining probable cause in cases filed for trial by allowing the
municipal judge to personally evaluate the affidavits and supporting
evidence of the complainant or if on the basis thereof he finds no
probable cause he may require the submission of additional evidence to
aid him in arriving at a conclusion as to the existence of probable cause.
This is in line with the pragmatic interpretation by the Supreme Court
that under the Constitution the judge does not have to conduct a
personal examination of the witnesses but that for purposes of
determining probable cause for the issuance of a warrant of arrest, the
Judge must personally evaluate the prosecutor's report, the evidence
adduced during the preliminary investigation.
These jurisprudence are now capsulized in the present rule, where the
judge needs only to evaluate the report of the Prosecutor and the
supporting documents.
Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
Meaning of Personal Examination

SECTION 1.
Definition of arrest
SEC. 2.
Arrest; how made
What Constitutes Arrest
The act relied upon as constituting an arrest must have been performed
with the intent to effect an arrest and must have been so understood by
the party arrested.

Where, as here, the precipitate action of the appellants has cost an

innocent life and there exist no circumstances whatsoever to warrant
action of such character in the mind of a reasonably prudent man,
condemnation not condonation should be the rule; otherwise, this
Court would offer a premium to crime in the shelter of official actuation.

As a matter of law, when a person indicted for an offense is arrested, he

is deemed placed under custody of the law.
He is placed in actual restraint to liberty in jail so that he may be bound
to answer for the commission of the offense.

Thus, it may be true that Anseimo Balagtas was a notorious criminal, a

life-termer, a fugitive from justice and a menace to the peace of the
community but these facts alone constitute no justification for killing
him when, in effecting his arrest, he offers no resistance, or in fact no
resistance can be offered, as when he is asleep.

He must be detained in jail during the pendency of the case against

him, unless he is authorized by the court to be released on bail or on
recognizance.

This, in effect, is the principle laid down, although upon different facts."

The prisoner whether under preventive detention or serving fail

sentence can not practice their profession nor engage in any business
or occupation or hold office, elective or appointee, while in detention.

Force Necessary to Overcome Actual Resistance to Arrest

Also, the person making the arrest must be acting under some real or
pretended legal authority for taking the person into custody.
It is not necessary, however, that there be an application of actual force,
or manual touching of the body, or physical restraint which may be
visible to the eye, or a formal declaration of arrest.
It is sufficient if the person arrested understands that he is in the power
of the one arresting and submits in consequence.
However, in all cases in which there is no manual touching or seizure or
any resistance, the intentions of the parties to the transaction are very

This is a necessary consequence of arrest and detention.

In People v. Delima, a prisoner escaped from jail. He was found armed
with a pointed piece of bamboo in the shape of a lance. Accused
policeman asked him to surrender but prisoner answered with a stroke
of his lance. The policeman fired his revolver but did not hit the criminal
who ran away. He pursued, firing and killing the prisoner.
Held: The killing was done in the performance of a duty.
The deceased was under the obligation to surrender, and had no right,
after evading service of his sentence, to commit assault and
disobedience with a weapon in the hand, which compelled the

SEC. 4.
Execution of Warrant
The rule does not require a return of the warrant of arrest but only a
report to the judge who issued the warrant and, in case of the officer's
failure to execute the same, shall state the reasons therefor.
A warrant of arrest does not become stale or functus oficio unlike a
search warrant which is valid only for ten days.

commission of the crime.

A warrant of arrest remains valid until arrest is effected or the warrant
lifted.
SEC. 5.
Arrest without warrant; when Lawful

Although probable cause eludes exact and concrete definition, it

generally signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious
man to believe that the person is guilty of the offense with which he is
charged.
It, likewise, refers to the existence of such facts and circumstances
which could lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure
and destruction by law is in the place to be searched.

Amendments to the Rule, Explained

a.
Former Rule (1964)
Sec. 6, Rule 113

Personal Knowledge of Facts Constituting Probable Cause

b.
When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested has
committed it; and

In its resolution denying the Motion for Reconsideration in the Umil v.

Ramos cases, the majority opinion explained the meaning of Personal
Knowledge of Facts (under section 5[b]), as follows:

1985 AMENDMENT
b)
When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to be
arrested has committed it; and
Reason For 1985 Amendment
In 1985, the rule, which was transposed to section 5 of Rule 113,
introduced a significant change.
Subsection (b) of section 5, Rule 113 inserted the word "just" before
been committed, and the phrase "he has reasonable ground to believe"
was changed to "he has personal knowledge of facts" to minimize
arrests based on mere suspicion or hearsay.
Controversy arose in the interpretation of what are those fact which
must be within the personal knowledge of the person effecting the
arrest?
Otherwise stated, what are the facts indicating that the person to be
arrested has committed the crime.
The restrictive interpretation is that the facts constituting the crime
must be personally known by the person effecting the arrest, hence,
there are cases which excluded even an eyewitness identification
allegedly because of lack of personal knowledge by the arresting officer.

"It has been ruled that 'personal knowledge of facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on probable cause,
coupled "with good faith on the part of the peace officers making the
arrest."
The foregoing standards were again adopted in warrantless "hot
pursuit" arrest in the 1999 case of People v. Doria.
As observed by an eminent author there does not exist (and never will
exist) a "bright line" marking the exact boundaries of probable cause, so
that a warrant should be upheld when the initial judgment of the
magistrate could considerably have gone either way.
General Principles; Warrantless Arrest Not Allowed
a.
As a general rule, no peace officer or person has the power
or authority to arrest anyone without a warrant except in those cases
expressly authorized by law.

The Revised Rules on Criminal Procedure

The law expressly allowing arrests without a warrant is found in
Section 5, Rule 113 of the Rules of Court.

As revised, the present rule reads:

"(B) WHEN AN OFFENSE HAS JUST BEEN COMMITTED AND HE HAS
PROBABLE CAUSE TO BELIEVE BASED ON PERSONAL KNOWLEDGE OF
FACTS OR CIRCUMSTANCES THAT THE PERSON TO BE ARRESTED HAS
COMMITTED IT."
The present rule removed the requirement that an offense must have in
fact been committed and clarified that probable cause to believe
based on personal knowledge of facts refer to "facts and circumstances" that the person to be arrested has committed it.
Such knowledge would be sufficient to justify a warrantless arrest for an
offense that has just been committed.
The amendment is in accord with Supreme Court decisions that the
indubitable existence of a crime is not necessary to justify a
warrantless arrest and that 'personal knowledge of facts,' in arrests
without warrant must be based upon probable cause, which means an
actual belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence
actual belief of the arresting officers, the suspicion that the person to
arrested is probably guilty of committing the offense, is based
actual facts, i.e., supported by circumstances sufficiently strong
themselves to create the probable cause of guilt of the person to
arrested.

of
be
on
in
be

A reasonable suspicion therefore must be founded on probable cause,

coupled "with good faith on the part of the peace officers making the
arrest.
The only difference is that in flagrante arrests, under subpar. (a), the
facts constituting probable cause occur in the presence of the arresting
person, while in hot pursuit, knowledge of the facts occurred after the

A warrantless arrest under circumstances contemplated under Sec. 5(a)

has been denominated as one "in flagrante delicto" while that under
Section 5(b) has been described as a "hot pursuit arrest."
b.
A peace officer has no power or authority to arrest a
person without a warrant upon complaint of the offended party or any
other person, except in those cases expressly authorized by law.
What he or the complainant may do in such case is to file a complaint
with the city fiscal in cities, or directly with the justice of the peace
courts (now municipal courts) in municipalities and other political
subdivisions.
If the city fiscal has no authority, and he has not, to order the arrest of a
person charged with having committed a public offense even if he finds,
after due investigation, that there is a probability that a crime has been
committed and the accused is guilty thereof, a fortiori a police officer
has no authority to arrest and detain a person charged with an offense
upon complaint of the offended party or other persons even though
after investigation, he becomes convinced that the accused is guilty of
the offense charged.
c.
Section 2463 of Revised Administrative Code recognized as
basis for warrantless arrest was repealed by R.A. No. 409 otherwise
known as the Charter of Manila.
Exception
The rules recognize and allow arrests without warrant and a search and
seizure without warrant incident to a lawful arrest whether the arrest is
with or without a warrant.
As stated in People v. Kaqui Malasugui, the Constitutional precepts do

not prohibit arrests, searches and seizures without judicial warrant, but
only those that are unreasonable.
To hold that no criminal can in any case be arrested and searched for
the evidence and tokens of his crime without a warrant, would be to
leave society, to a large extent, at the mercy of the shrewdest, the most
expert, and the most depraved of criminals, facilitating their escape in
many instances.
It is the duty of a policeman to arrest those who disturb an assemblage
by words and blows constituting a breach of the peace and the
defendant who requested the arrest and the officer who made it did not
incur criminal responsibility.
Municipal councilors and lieutenants or "barrios" are charged with duty
of maintaining order, and preserving and protecting life and property in
the "barrios" specially placed under their direction in conformity with
Sec. 37 of Act No. 82, and are therefore clothed with authority to make
arrests without warrants, not inferior to those powers usually conferred
upon peace officers, more especially those of peace officers known as
"constables" in American and English law.
Thus, the Lieutenant of a "barrio" was held to be within lawful
performance of his duties when he attempted to arrest a person caught
in flagrante delicto conducting a clandestine cockpit.
Any officer charged with the preservation of the public peace may arrest
without a warrant any person who is committing, or has committed, a
breach of peace in his presence.
Source of Rule on Warrantless Arrest
a.
A warrantless arrest in this jurisdiction as an exception to
the constitutional prohibition against unreasonable search and seizure
was originally governed by Rules 27, 28, 29 and 30 of the Provisional
Law for the Application of the Penal Code, which authorized among
others the arrest of persons when there is reasonable ground to
believe him guilty of some offense, provided:
First. That the authority or agent had reasonable cause to believe that
an unlawful act, amounting to crime had been committed.
Second. That the authority or agent had sufficient reason to believe that
the person arrested participated in the commission of such unlawful act
or crime.
The Supreme Court in the 1909 case U.S. v. Fortaleza (supra), likewise
pointed to section 37 of Act No. 183 (Charter of Manila) which
designated customs officials, including police officers or peace officers
who may pursue and arrest without warrant, any person found in
suspicious places or under suspicious circumstances reasonably tending
to show that such person has committed, or is about to com-mit any
crime or breach of the peace; or may arrest, or cause to be arrested
without warrant, any offender, when the offense is committed in the
presence of a peace officer or within his view.
b.
The extent of a peace officers' arrest powers in the
Philippines without warrant and the limitations therein was upheld by
the Supreme Court in the 1917 case of U.S. v. Santos and as stated in
the Legislature in the Charter of the City of Manila and (2) the
Administrative Code and (3) Sec. 2258, edition of 1917 which enjoins
Municipal policemen to "exercise vigilance in the prevention of public
offenses.
The decision, likewise cited the common law rule on the arrest of
suspicious night walkers.
c.
In the 1939 case of People v. Ancheta the Supreme Court
pointed to section 848 of the Administrative Code and Article 124 of the
Revised Penal Code as allowing members of the Constabulary or
policemen to make arrests without warrant, not only when a crime is
being committed or is about to be committed in their presence, but
also when they reasonably believe or have grounds to suspect that a
crime has been committed and that it has been committed precisely
by the person arrested.
d.
Under Commonwealth Act No. 181 (Sec. 3), an arrest
without warrant may be made by agents of the Department of Justice
(i.e., the Chief of the Division of Investigation and his subordinates) for a
crime which has been committed in their presence, or within their view,
or in cases where the person making the arrests has reasonable grounds
to strongly believe that the person so arrested is guilty of such crime
and where there is likelihood of the person escaping before a legal
warrant can be obtained for his arrest, but the person arrested shall be

immediately taken before the compe-tent Court of Justice.

Under this law members of the investigation staff of the Bureau of
Investigation shall be peace officers and as such have the power to
make arrests, searches and seizure in accordance with existing laws and
rules.
Earlier Rulings (Before 1940): Arrest Based on Suspicion, Were Held
Valid
The bases of the rulings are Rules 27 and 28, Provisional Rules for
Application of Penal Code, Revised Administrative Code and Section 37
Charter of Manila which allows warrantless arrest based on reasonable
ground of belief.
The following cases are illustrative:
a.
U.S. u. Burgueta warrantless arrest of accused while
quarreling in public with Municipal Councilor.
b.
U.S. v. Fortaleza upholding warrantless arrest of operator
by barrio lieutenant of a clandestine, cockpit operation.
c.
U.S. u. Samonte - Meaning of committed in one's presence
Seeing or Hearing at a Distance. An offense is committed in the
presence or within the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the officer sees the
offense, although at a distance, or hears the disturbances created
thereby and proceeds at once to the scene thereof.
In this case, as the priest engaged in a quarrel was down
and was being maltreated, he shouted "police! police!" and the police
heard this and attempted to arrest appellant, he resisted arrest and
struck the police. Appellant was held guilty of assault upon an agent of
a person in authority.
d.
U.S. u. Batallones A peace officer can justify an arrest
without warrant if there is reasonable ground of suspicion tending to
show that a person committed or is about to commit any crime 01
breach of the peace, and if he acts in good faith. Under such conditions,
even if the suspected person is later found to be innocent, the peace
officer is not liable for coercion or arbitrary detention.
e.
U.S. v. Sanchez The legality of the detention does not
depend upon the fact of the crime, but upon the nature of the deed,
where such characterization may reasonably be inferred by the officer
or functionary to whom the law at that moment leaves the decision for
the urgent purpose of suspending the liberty of the citizen.
One of the duties of the police is to arrest lawbreakers in order to place
them at the disposal of the judicial or executive authorities upon whom
devolves the duty to investigate the act constituting the violation or to
prosecute and secure the punishment thereof.
One of the means conducing to these ends being the identification of
the person of the alleged criminal or lawbreaker, the duty that directly
devolves upon the police to make the arrests or detentions for the
purposes of such investigation cannot be questioned, (supra)
Hearing the screeching of tires followed by a thud and seeing the
sideswiped victim is a crime committed in one's presence to justify a
warrantless arrest.
f.
In a case of arbitrary detention, the Supreme Court held that
there is No need of fact of commission of offense to justify the
detention. Probable cause for an arrest without warrant is allowed
where there is reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves as to warrant a
reasonable man in believing the accused to be guilty. No crime was
committed here.
The persons merely entered an uninhabited camarin but their arrest was
justified to prevent the commission of a crime.
Common Law rule applied. Justice Malcolm stated that:
"One should, however, not expect too much of an ordinary policeman.
He is not presumed to exercise the subtle reasoning of a judicial officer.
Often he has no opportunity to make proper investigation but must act
in haste on his own belief to prevent the escape of the criminal. To err is
human. Even the most conscientious officer must at times be misled.
If, therefore, under trying circumstances and in a zealous effort to obey

the orders of his superior officer and to enforce the law, a peace officer
makes a mere mistake in good faith, he should be exculpated.
Otherwise, the courts will put a premium on crime and will terrorize
peace officers through a fear of themselves violating the law."
g.
In People v. Kagui Malasugu a warrantless arrest for a
crime committed not in arresting officer's presence but made on the
same day was justified.
h.
In other words, such arrest or detention does not necessarily
presume that really a crime had been committed.
It is sufficient that there was ample ground to believe honestly and
reasonably that the cause of the surrounding phenomena at the time
was a crime that has just been or was about to be committed and that
the person detained was responsible for it.

Application of Present Rule

Despite the 1985 amendments on warrantless arrest, the court appears
to have returned to pre-amendment doctrines in the application of the
rule.
In Flagrante Arrests (For crimes committed in presence of arresting
person)
Sec. 5(a), Rule 113, Sec. 12, Rule 126 arrest for crimes In Presence of
arresting officer. WHEN IN HIS PRESENCE, THE PERSON TO BE
ARRESTED HAS COMMITTED, IS ACTUALLY COMMITTING, IS OR
ATTEMPTING TO COMMIT A CRIME.

Indubitable Existence of Crime Not Required

To constitute probable cause, two requisites must concur:

Thus, under the pre-1940 rulings, a lawful warrantless arrest does not
require the indubitable existence of a crime.

(a)
the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and

Restrictions on Warrantless Arrest

In Sayo, et al. v. Chief of Police, the court, however, held that:
"THE LAW RESTRICTS THE CASES WHEN A PEACE OFFICER MAY ARREST
WITHOUT A WARRANT; THE SO-CALLED COMMON LAW RULE RELATING
TO OTHER CASES OF ARREST WITHOUT WARRANT HAS NO APPLICATION
IN THIS JURISDICTION, AND EXCEPT AS AUTHORIZED BY SUCH STATUTE,
AN ARREST WITHOUT WARRANT IS ILLEGAL.

What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest.

He noted that petitioner David was not wearing the subject t-shirt and
even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition.

To all appearances, he was like any of the other passengers innocently

disembarking from the vessel.
It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to
apprehension."
The reliance of the prosecution in People v. Tangliben, to justify the
police's actions is misplaced.

Further, he also stated that there is insufficient evidence for the charge
of violation of B.P. Big. 880 as it was not even known whether petitioner
David was the leader of the rally.
ILLUSTRATIVE CASES:
Meaning of Personal Knowledge Based on Sensory Perceptions
People v. Claudio

People v. Ancheta, reiterated the ruling laid down in U.S. v. Santosand

adopted that of a decision of the Supreme Court of Spain of November
5, 1892.

The arrest was considered as lawful.

Consequently, the Inquest Prosecutor ordered his immediate release on

the ground of insufficiency of evidence.

Essential Requisites
Reliable information alone, absent any overt act indicative of a felonious
enterprise in the presence of and within the view of the arresting
officers, are not sufficient to constitute probable cause that would justify
an in flagrante delicto arrest.

It is sufficient if the officer effecting the arrest has reasonably sufficient

grounds to believe the existence of an act having the characteristic of a
crime and that the person sought to be detained has participated
therein, a warrantless arrest was made on the basis of information given
by one of the accused naming his companions who, on the basis
thereof, was arrested without a warrant.

not, at the moment of his arrest, committing a crime nor was it shown
that he was about to do so or that he had just done so.

(b)
such overt act is done in the presence or within the view of
the arresting officer
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance.
Overt or external act has been defined as some physical activity or
deed, indicating the intention to commit a particular crime, more than a
mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense.
A warrantless arrest is not justified by the mere fact that a crime is
being committed in one's presence.

In the said case, based on the information supplied by informers, police

officers conducted a surveillance at the Victory Liner Terminal
compound in San Fernando, Pampanga against persons who may
commit misdemeanors and also on those who may be engaged in the
traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed
a person carrying a red travelling bag who was acting suspiciously.
They confronted him and requested him to open his bag but he refused.
He acceded latel on when the policemen identified themselves. Inside
the bag were marijuana leaves wrapped in a plastic wrapper. The police
officers only knew of the activities of Tangliben on the night ol his arrest.
In the instant case, the apprehending policemen already hac prior
knowledge from the very same informant of accused-appellant's
activities.
The police operatives cannot feign ignorance of the alleged ille gal
activities of accused-appellant. Considering that the identity address
and activities of the suspected culprit was already ascertained two
years previous to the actual arrest, there was indeed no reason why the
police officers could not have obtained a judicial warrant before
arresting accused-appellant and searching his person Whatever
information their civilian asset relayed to them hours be fore accusedappellant's arrest was not a product of an "on-the-spot tip which may
excuse them from obtaining a warrant of arrest
Accordingly, the arresting team's contention that their arrest of
accused-appellant was a product of an "on-the-spot" tip is untenable

Pat. Obina a member of the NARCOTICS UNIT, was on board the Victory
Liner, seated on the second seat at the back. While he was thus seated,
suspect Anita Claudio boarded the same bus and took the seat in front
of him after putting a bag which she was carrying at the back of the
seat of Obina. The bag placed by suspect behind his seat was a woven
buri bag made of plastic containing her bag behind Pat. Obina's seat
aroused his suspicion and made him felt (sick) nervous. With the feeling
that there was something unusual, he had the urge to search the woven
plastic bag. But it was only at San Fernando, Pampanga when he was
able to go to the bag. He inserted one of his fingers in a plastic bag
located at the bottom of the woven bag and smelt marijuana. The
plastic woven bag appearing to contain camote tops on the top has a
big bundle of plastic marijuana at the bottom. He could recognize the
smell of marijuana because he was assigned at that time at the ANTINARCOTICS UNIT. He did not, however, do anything after he discovered
that there was marijuana inside the plastic bag of the accused until they
reached Olongapo City and the accused alighted from the bus in front of
the Caltex Gasoline Station in Sta. Rita. Right after the accused alighted
from the bus, policeman Obina intercepted her and showed her his ID
identifying himself as a policeman and told her he will search her bag
because of the suspicion that she was carrying marijuana inside said
bag. In reply, accused told him, "Please go with me, let us settle this at
home."
HELD: Appellant Claudio was caught transporting prohibited drugs. Pat.
Daniel Obina did not need a warrant to arrest Claudio as the latter was
caught inflagrante delicto. The warrantless search being an incident to a
lawful arrest is in itself lawful.

In Randolph David v. Gloria Macapagal-Arroyo, the Court stressed:

STATUTORY CONSTRUCTIONS EXTENDING THE RIGHT TO MAKE ARRESTS
WITHOUT A WARRANT BEYOND THE CASES PROVIDED BY LAW IS
DEROGATORY OF THE RIGHT OF THE PEOPLE'S LIBERTY"

The arresting
commission.

officer

must

have

personal

knowledge

of

such

The knowledge must precede the arrest.

Present Rule on Warrantless Arrest
The law expressly allowing arrests without a warrant is found in Section
5, Rule 113 of the Rules of Court.

The arrest cannot be justified by discovery thereafter that the person

was committing a crime.
Knowledge Must Be At Time of, Not After, Arrest

A warrantless arrest under circumstances contemplated under Sec. 5(a)

has been denominated as one "in flagrante delicto" while that under
Sec. 5(b) has been described as a "hot pursuit arrest."
The foregoing rule specifies the instances when warrantless arrests may
be made by a peace officer or a private person.
The old Rule was modified as follows: (a) the phrase "about to commit
an offense" was changed to "is attempting to commit an offense,"
because the old phraseology implied that no offense had as yet been
committed, (b) the word "just" was inserted before "been committed,"
and the phrase "he has reasonable ground to believe" was changed to
"he has personal knowledge of facts" to minimize arrests based on mere
suspicion or hearsay.44
The 1940 Rules of Court (effective July 1, 1940), provided for
warrantless arrest in section 6 of Rule 109 thereof. These were taken
from the Provisional Law for the application of the Penal Code and
sections 21 and 22 of the American Law Institute45 with one
significant change. The warrantless arrest under subsection (b)
requires as a condition thereof that an "offense has in fact" been
committed.
In 1985 rule, which was transposed to section 5 of Rule 113, introduced
another significant change. Subsection (b) of section 5, Rule 113
inserted the word "just" before been committed, and the phrase "he has
reasonable ground to believe" was changed to "he has personal
knowledge of facts" to minimize arrests based on mere suspicion or
hearsay.46

An offense is committed in the presence or within the view of an officer,

within the meaning of the rule authorizing an arrest without a warrant,
when the officer sees the offense, although at a distance, or hears the
disturbance caused thereby and proceeds at once to the scene thereof,
or the offense is continuing; or has not been consummated at the time
when the arrest is made.
Knowledge of the commission of the crime in one's presence must
precede the arrest.
The law requires that there be first a lawful arrest before a search can
be made the process cannot be reversed.
In other words, the acts must be known to the officer at the time of their
commission through his sensory perceptions.
Thus, there could have been no in flagrante delicto arrest preceding the
search, in light of the lack of an overt physical act on the part of
accused-appellant that he had committed a crime, was committing a
crime or was going to commit a crime.
As applied to in flagrante delicto arrests, it has been held that "reliable
information" alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers,
is not sufficient to constitute probable cause that would justify an in
flagrante delicto arrest.
Hence, in People u. Aminudin, we ruled that "the accused-appellant was

PEOPLE V. BURGOS
The Constitution provides that "the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search
and seizure of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that between
person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or
warrants of arrest.
In the Brief Account submitted by petitioner David, certain facts ire
established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis ofPP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, Dhotographed
and booked like a criminal suspect; fourth, he was created brusquely by
policemen who "held his head and tried to push him inside an unmarked
car; fifth, he was charged with Violation of Satas Pambansa Bilang Big.
880 and Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh, he was eventually released for insufficiency of evidence.

Strict Interpretation
Personal Knowledge Interpreted. The need to strictly adhere to the rule
was stressed by Justice Hugo Gutierrez, Jr., in no uncertain terms in
People v. Burgos In this case Cesar Masamlok surrendered to the PC
on May 12, 1982 stating that, he was forcibly recruited by Ruben Burgos
a member of the NPA, threatening him with the use of firearm against
his life, if he refused.
A joint team of members of the PC-INP was dispatched the following day
to arrest Ruben Burgos and they were able to locate and arrest him
while he was plowing his field. Interrogation was made in the house of
the accused. He first denied possession of the firearm but later, upon
further questioning, the team with the wife of the accused, the latter
pointed to a place below their house where a gun was buried in the
ground.
After the recovery of the firearm, the accused likewise pointed to the
subversive documents which the PC found kept in a stock pile ofcogon,
at a distance of three meters apart from his house.
Accused when confronted with the firearm readily admitted the same as
issued to him by the team leader of a sparrow unit. The lower court
justified the arrest, search and seizure without warrant under Section 6A, Rule 113 of the Rules of Court.
The Supreme Court held the arrest as unlawful.

Neither of the two (2) exceptions mentioned above justifies petitioner

David's warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of
B.P. Big. 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective
"Oust Gloria Now" and their erroneous assumption that petitioner David
was the leader of the rally.

Under Section 6(a) of Rule 113, the officer arresting a person who has
just committed, is committing, or is about to commit an offense must
have personal knowledge of that fact.
The offense must also be committed in his presence or within his view."
There is no such personal knowledge in this case.

Whatever knowledge was possessed by the arresting officers, it came in

its entirety from the information furnished by Cesar Masamlok.
The location of the firearm was given by the appellant's wife.
At the time he was arrested, he was not committing a crime but was
plowing his field.
If an arrest without warrant is unlawful at the moment it is made,
generally, nothing that is discovered afterwards cannot make it lawful
ARREST UNLAWFUL WHERE WAS
OPPORTUNITY TO OBTAIN WARRANT

NO

URGENCY

AND

THERE

IS

In People v. Aminnudin, the PC officers had earlier received a tip from

one of their informers that the accused was on board a vessel bound for
Iloilo City and was carrying marijuana. He was identified by name.
Acting on this tip, they waited for him in the evening of June 25, 1984,
and approached him as he descended from the gangplank after the
informer had pointed to him. They detained him and inspected the bag
he was carrying. It was found to contain three kilos of what were later
analyzed as marijuana leaves by an NBI forensic examiner, who testified
that she conducted microscopic, chemical and chromatographic tests on
them. On the basis of this finding, the corresponding charge was then
filed against Aminnudin.
HELD: Contrary to the averments of the government, the accusedappellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest
allowed under Rule 113 of the Rules of Court.
The present case presented no urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two
days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known.
The vehicle was identified. The date of its arrival was certain.
And from the information they had received, they could have persuaded
a judge that there was probable cause, indeed, to justify the issuance of
a warrant. Yet they did nothing.
No effort was made to comply with the law.
The Bill of Rights was ignored altogether because the PC Lieutenant who
was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."
The accused-appellant was not, at the moment of his arrest, committing
a crime nor was it shown that he was about to do so or that he had just
done so.
What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently
disembarking from the vessel.
It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to
apprehension.
It was the furtive finger that triggered his arrest.

by another agent was justified although the suspect was not

perceptively committing a crime but (like Aminnudin) merely alighted
from the vessel. The search and seizure was justified under the
principle justifying the search of moving vehicles as there was no time
to obtain a warrant.
The case was distinguished from Aminnudin where there was time to
obtain a search warrant.
The record shows that the NARCOM officers were uncertain as to the
precise date and time appellant would arrive from Manila; all they knew
is that he would be taking a boat from Manila to Dumaguete on the
morning of 8 July 1992.
More specific details were received earlier in the morning that the
appellant would be arriving the same morning. Clearly, the agents had
to act quickly but there was not enough time to obtain a warrant of
arrest or search warrant.
Mere suspicion Insufficient
WHERE THE ACCUSED CARRYING A BURI BAG WAS ACTING
SUSPICIOUSLY AND WAS FOUND IN POSSESSION OF A FIREARM AND
EXPLOSIVE, THE SOLICITOR GENERAL ARGUED THAT WHEN THE TWO
POLICEMEN APPROACHED THE PETITIONER, HE WAS ACTUALLY
COMMITTING OR HAD JUST, COMMITTED THE OFFENSE OF ILLEGAL
POSSESSION OF FIREARMS AND AMMUNITION IN THE PRESENCE OF
POLICE OFFICERS AND CONSEQUENTLY THE SEARCH AND SEIZURE OF
THE CONTRABAND WAS INCIDENTAL TO THE LAWFUL ARREST IN
ACCORDANCE WITH SECTION 12, RULE 126 OF THE RULES ON CRIMINAL
PROCEDURE.

only saw them acting suspiciously. The court held that the cardinal rule
is that no person may be subjected by the police to a search of his
house, body or personal belonging except by virtue of a search warrant
or on the occasion of a lawful arrest.
If a person is searched without a warrant, or under circum-stances other
than those justifying an arrest without warrant in accordance with law,
merely on suspicion that he is engaged in some felonious enterprise,
and in order to discover if he has indeed committed a crime, it is not
only the arrest which is illegal but also, the search on the occasion
thereof as being the fruit of the poisonous tree.
In that event, any evidence taken, even if confirmatory of the initial
suspicion, is inadmissible "for any purpose in any proceeding.
COMPARE:
Arrest Based on Suspicion; Where there is Urgency
Where around 9:30 in the evening the police on a surveillance mission
noticed a person carrying a red travelling bag who was acting
suspiciously and they confronted himand requested him to open the red
travelling bag but the person refused. Found inside the bag were
marijuana leaves wrapped in a plastic wrapper and weighing one kilo,
more or less.
Accused was held to havev been caught in flagrante, since he was
carrying marijuana at the time of his arrest. This case therefore falls
squarely within the exception.
The warrantless search was incident to a lawful arrest and is
consequently valid.

The Supreme Court held:

In contrast, to the Aminnundin case, Tangliben presented urgency.

"At the time the peace officers in this case identified themselves and
apprehended the petitioner as he attempted to flee they did not know
that he had committed, or was actually com-mitting the offense of
illegal possession of firearms and ammunitions.

Although the trial court's decision did not mention it, the transcript of
stenographic notes reveals that there was an informer who pointed to
the accused-appellant as carrying marijuana.
Faced with such on-the-spot information, the police officers had to act
quickly.

They just suspected that he was hiding something in the buri bag.
They did not know what its contents were. The said circumstances did
not justify an arrest without a warrant.
Thus, to justify the arrest without warrant, under Section 6 (a), it is not
enough that a crime is actually being committed in his presence.
The person or peace officer making the arrest must be per-sonally
aware of the commission of such crime."
People v. Mengote
The police received a telephone call that there were three sus-picious
looking persons at the corner of Juan Luna and North Bay Boulevard at
Tondo. The police responded and saw two men "looking from side to
side," one of whom was holding his abdomen. The police approached
them and identified themselves as policemen whereupon the two tried
to ran away. The other lawmen surrounded them and searched them
and one of them was found with an unlicensed firearm and live
ammunition. Was the search and seizure legal?
Held: It is illegal. At the time of the arrest, the appellant was merely
looking from side to side and holding his abdomen. This is not a crime.

The identification by the informer was the probable cause as

determined by the officers (and not a judge) that authorized them to
pounce upon Aminnudin and immediately arrest him. Even expediency
could not be invoked to dispense with the obtention of the warrant.

The police did not know then what offense if at all had been committed
and neither were they aware of the participation therein of the
appellant, x x x

Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.

As for the illegal possession of firearm, the police discovered this only
after he had been searched and investigated.

Aminnudin was reiterated in People v. Encinada, under substantially

identical factual setting. To the trial court's justification that there was
no time to obtain a search warrant because the information was
received at 4:00 o'clock in the afternoon, and that the ship was to dock
at 7:00 a.m., the court pointed to Administra-tive Order No. 12 which
allows applications for search warrants even after office hours.

The Supreme Court cited the cases of Burgos, Alih Castro and
Aminnudin holding that it would be a sad day, indeed, if any person
could be summarily arrested and searched just because he is holding his
abdomen, even if it be possibly because of a stomachache or if a
peace officer could clamp handcuffs on any person with a shifty look on
suspicion that he may have committed a criminal act or is actually
committing or attempting to commit it.

COMPARE: Where there was No Opportunity to Obtain Warrant

There was not enough time to secure a search warrant. We cannot

therefore apply the ruling in Aminnudin to the case at bar.
To require search warrants during on-the-spot apprehensions of drug
pushers, illegal possessors of firearms, jueteng collectors, smugglers of
contraband goods, robbers, etc. would make it extremely difficult, if not
impossible to contain the crimes with which these persons are
associated.
Upon being informed by their civilian informer that there would ie a
transaction involving the buying and selling of marijuana which would
take place on that same day, Patrolmen immediately proceeded to the
vicinity where the alleged transaction would take place.
While positioned at a street corner, they saw appellant and Warner
Marquez ay the side of the street about forty to fifty meters away from
them the police officers).
They saw Marquez giving something to appellant who, thereafter,
handed a wrapped object to Marquez who then inserted the object
inside the front of his pants infront of his abdomen while appellant, on
his part, placed the thing given to him inside his pocket.
The court a quo correctly ruled: The facts and circumstances attendant
precisely fall under Sec. 5(a), Rule 113 of the Rules on Criminal
Procedure.
The subsequent arrest of Marquez and accused were made under the
principle of hot pursuit.

In Lo Ho Wing (supra), it was firmly established from the fac-tual

findings of the trial court that the authorities had reasonable ground to
believe that appellant would attempt to bring in contraband and
transport it within the country.
The belief was based on intelligence reports gathered from surveillance
activities on the suspected syndicate, of which appellant was touted to
be a member.
Aside from this, they were also certain as to the expected date and time
of arrival of the accused from China.
But such knowledge was clearly insufficient to enable them to fulfill the
requirements for the issuance of a search warrant.
Still and all, the important thing is that there was probable cause to
conduct the warrantless search, which must still be present in such a
case.
In People v. Montilla, the opportunity to obtain a warrant was not
considered as sufficient to invalidate the legality of the warrantless
arrest.
For, under the circumstances, the information relayed was too sketchy
and not detailed enough for the obtention of the cor-responding arrest
or search warrant.
The informant did not know to whom the drugs would be delivered and
at which particular part of the barangay there could be such delivery or
the precise time of the suspect's arrival, or of his means of
transportation, the container or contrivance wherein the drugs were
concealed and whether the same were arriving with, or being brought
by someone separately from the courier.
The court ruled that in determining the opportunity for obtaining
warrants, not only the intervening time is controlling but all the
coincident and ambient circumstances should be considered especially
in rural areas.
Shift In Jurisprudence: Warrantless Arrest Under Section 5(a) Based On
Reasonable Ground of Suspicion
a.

Probable Cause Based on Surveillance; No Crime Committed

In Harvey v. CID Commissioner Santiago, the arrest of petitioners was

based on probable cause determined after close surveillance for three
(3) months during which period their activities were monitored.
The Supreme Court justified the arrest and the seizure of the photo
negatives, photographs and posters without warrant due to the
existence of probable cause.
b.

Reasonable Ground to Believe Rule Applied

The Supreme Court explained that petitioners were not caught in the
act, does not make their arrest illegal.
Petitioners were found with young boys in their respective rooms, the
one with John Sherman being naked.
Under those circumstances, the CID agents had reasonable grounds to
believe that petitioners had committed "pedophilia" defined as psychosexual perversion involving children."
"Pedophilia for unusual sexual activity in which children are the
preferred sexual objects"
Solicitor General's Return of the Writ, on p. 101.

The recovery of the marijuana from Marquez and the P190.00 from
accused by the said police officers were not violative of their
constitutional rights since Marquez and the accused voluntarily
surrendered them to the police officers.
But even for the sake of argument that the recovery of the marijuana
and peso bills were against the consent of Marquez and accused, still,
the search on their persons were incidental to their valid warrantless
arrest."

People v. Rodriguez
In People v. Saycon A warrantless arrest, search and seizure based on
information from a NARCOM agent that a suspected Shabu courier was
arriving at Dumaguete City on board a vessel and who was pointed to

arrest. To be considered likewise is whether or not a warrant may be

issued under the circumstances.

While not a crime under the Revised Penal Code, it is a behavior

offensive to public morals and violative of the declared policy of the
State to promote and protect the physical, moral, spiritual, social wellbeing of our youth.
c.

People v. Allan Rodriguez

Reasonable ground based on tip of informer delivery of suspicious

stuff to tricycle driver justified warrantless arrest.

Compare
The arrest, search and seizure was held illegal in view of the admission
by the police that he did not actually see the appellants transacting but

Mere time to obtain a warrant not sufficient to invalidate a warrantless

The police officers were tipped off by an informer about the illegal trade
of the accused.

The exact location where this trading in drugs was taking place was
given to them.

such crimes, and crimes or offenses committed in furtherance thereof or

in connection therewith constitute direct assaults against the State are
in the nature of continuing crimes."

They witnessed the person hand deliver a suspicious stuff to the

tricycle driver who in turn gave something to the person.

The Court then went on to quote Garcia-Padilla v. Enrile,91 where the

Supreme Court held:

The suspicious stuff taken from the accused were confirmed to be

marijuana after tests were conducted on them.

"From the facts as above narrated, the claim of the petitioners that they
were initially arrested illegally is, therefore, without basis in law and in
fact.

The attending circumstances taking place before their eyes led the
police officers to reasonably conclude that an offense was actually being
committed.
d.
Personal Knowledge Under Section 5(a) Was Not Likewise
Strictly Observed in the Following Cases:
In these cases, the fact that the search yielded possession of illegal
articles was included as a justification for a warrantless
Arrest under Section 5(a) although the arresting officer at the time of
arrest has no personal knowledge of a crime being committed in their
presence as prescribed in U.S. v. Samonte (supra); Sayo v. Chief of
Police (supra); People v. Burgos (supra); and People v. Posadas
Meaning of Personal Knowledge of Facts Constituting Probable Cause
Sufficient
In its resolution denying the Motion for Reconsideration in the Umil v.
Ramos cases, the majority opinion explained the meaning of Personal
Knowledge of Facts, as follows:
It has been ruled that 'Personal Knowledge of Facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on probable cause,
"coupled with good faith on the part of the peace officers making the
arrest."
The Continuing Crime Principle to Justify Warrantless Arrest
The Umil u. Ramos, and seven other petitions for habeas corpus were
all based on the ground that the arrests of the petitioners were made
without warrant and that no preliminary investigation was first
conducted so that the information filed against them are void.
The Supreme Court in a per curiam decision, however, found that the
persons in whose behalf these petitions for habeas corpus have been
filed, were freshly committed and that the accused were actually
committing an offense, when apprehended, so that their arrests without
a warrant were clearly justified.
The court then proceeded to give a brief narration of the facts and
events surrounding each of the eight petitioners.
1)
In Umil v. Ramos, one of the petitioners, Rolando Dural who
was then confined in the hospital for a gunshot wound was positively
identified as a member of the sparrow unit who went on top of the hood
of the CAPCOM Mobile patrol car.
The Supreme Court found that he was not arrested while in the act of
shooting the two soldiers. He was charged with the crime of Double
Murder with Assault upon Agents of Persons in Authority.
Nor was he arrested just after the commission of the offense for his
arrest came a day after the shooting incident. He was arrested in the
hospital. Seemingly, his arrest without warrant is unjustified.
The Court, however, justified the arrest of Rolando Dural for being a
member of the New People's Army (NPA) an outlawed subversive
organization.
"Subversion being a continuous offense, the arrest of Rolando Dural
without warrant is justified as it can be said that he was committing an
offense when arrested.
The crimes of rebellion, subversion, conspiracy or proposal to commit

The crimes of insurrection or rebellion, subversion, conspiracy or

proposal to commit such crimes, and other crimes and offenses
committed in the furtherance on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside from their essentially involving a
massive conspiracy of nationwide magnitude.
Clearly then, the arrest of the herein detainees was well within the
bounds of the law and existing jurisdiction in our jurisdiction."
2)
In G.R. Nos. 84581-82, the arrest of Amelia Roque and
Wilfredo Buenaobra who admitted membership in the NPA and officers
and/or members of the NUFC-CPP were likewise justified for the same
reasons stated in UMIL.
The arrest without warrant of Roque was additionally justified as she
was, at the time of apprehension, in possession of ammunition without
license to possess.
3)
In Anonuevo v. Ramos, the arrest of Domingo Anonuevo and
Ramon Casiple without a warrant was also found to be justified.
Both are admittedly members of the standing committee of the NUFC
and, when apprehended in the house of Renato Constantino, they had a
bag containing subversive materials, and both carried firearms and
ammunition for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in
the evening of August 13,1988, Domingo T. Anonuevo and Ramon
Casiple arrived at the house of Renato Constantino at Marikina Heights,
Marikina, which was still under surveillance by military agents. The
military agents noticed bulging objects on their waist-lines.
When frisked, the agents found them to be loaded guns. Anonuevo and
Casiple were asked to show their permit or license to possess or carry
firearms and ammunition, but they could not produce any. Hence, they
were brought to PC Headquarters for investigation. Found in their
possession were the following articles:
(c)
(d)

Voluminous subversive documents

Firearms and ammunitions.

Anonuevo and Casiple claim that they were unlawfully arrested because
there was no previous warrant of arrest. The Supreme Court held the
claim as without merit.
"The record shows that Domingo Anonuevo and Ramon Casiple were
carrying unlicensed firearms and ammunition in their persons when they
were apprehended."
4)
In Ocaya u. Aguirre, the arrest without warrant, of Vicky
Ocaya was justified under the Rules, since she had with her unlicensed
ammunition when she was arrested.
The record of this case shows that on 12 May 1988, agents of the PC
Intelligence and investigation of the Rizal PC-INP Command, armed with
a search warrant issued by Judge Eutropio Migrino of the Regional Trial
Court ofPasig, Metro Manila, conducted a search of a house located at
Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila,
believed to be occupied by Benito Tiamson, head of the CPP-NPA.
In the course of the search, Vicky Ocaya arrived in a car driven by
Danny Rivera.
Subversive documents and several rounds of ammunition for a .45 cal.
pistol were found in the car of Vicky Ocaya.
As a result, Vicky Ocaya and Danny Rivera were brought to the PC
Headquarters for investigation. When Vicky Ocaya could not produce
any permit or authorization to possess the ammunition, an information
charging her with violation of P.D. No. 1866 was filed with the Regional
Trial Court of Pasig, Metro Manila.

The case is docketed therein as Criminal Case No. 737. Danny Rivera,
on the other hand, was released from custody.

failure of the accused to produce his passport, taken together as a

whole, led the NARCOM officers to reasonably believe that the accused
was trying to hide something illegal from the authorities.

In answer to her claims that she'.,was illegally arrested, the Supreme

Court held that Vicky Ocaya was arrested in flagrante delicto so that her
arrest without a warrant is justified.

From these circumstances arose a probable cause which justified the

warrantless search that was made on the personal effects of the
accused.

5)
In Espiritu v. Lim, the respondents claim that the petitioner
was lawfully arrested without a judicial warrant of arrest (on November
23) since petitioner when arrested had in fact just committed an offense
in the afternoon of 22 November 1988, during a press conference of the
National Press Club.

In other words, the acts of the NARCOM officers in requiring the

accused to open his pouch bag and in opening one of the wrapped
objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy
bears with hashish stuffed inside them were prompted by accused's own
attempt to hide his identity by refusing to present his passport, and by
the information received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession.

Deogracias Espiritu through tri-media was urging all drivers and

operators to go on nationwide strike on November 23, 1988, to force the
government to give in to their demands to lower the prices of spare
parts, commodities, water and the immediate release from detention of
the president of the PISTON (Pinagkaisahang Samahan ng Tsuper at
Operators Nationwide).

To deprive the NARCOM agents of the ability and facility to act

accordingly, including to search even without warrant, in the light of
such circumstances, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.

Further heard was Deogracias Espiritu taking the place of PISTON

president Medardo Roda and also announced the formation of the
Alliance Drivers Association to go on nationwide strike on November 23,
1988.

Accused was searched and arrested while transporting prohib-ited drugs

(hashish).

Policemen waited for petitioner outside the National Press Club in order
to investigate him, but he gave the lawmen the slip.

A crime was actually being committed by the accused and he was

caught in flagrante delicto.

He was next seen at about 5:00 o'clock that afternoon at a gathering of

drivers and symphathizers at the corner of Magsaysay Blvd. and
Valencia Street, Sta. Mesa, Manila where he was heard to say:

Thus, the search made upon his personal effects falls squarely under
paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest."

"Bukas tuloy ang welga natin, sumagot no. ang Cebu at Bicol na kasali
sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory
ang gusto noting pagbaba ng halaga ng spare parts, bilihin at ang
pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo
na."

While it is true that the NARCOM officers were not armed with a search
warrant when the search was made over the personal effects of
accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was
then and there committing a crime.

The police finally caught up with the petitioner on 23 No-vember 1988.

He was invited for questioning and brought to Police headquarters after
which an Information for violation of Art. 142 of the Revised Penal Code
was filed against him before the Regional Trial Court of Manila.

Sufficiency of Knowledge of Probable Cause Reiterated En Bane

The Supreme Court held that the arrest of petitioner without a warrant is
in accordance with the provisions of Rule 113, Sec. 5(b).

In this case, an informer informed the police the day before that a drug
courier whom he could recognize would be arriving in Cavite from
Baguio City.

6)
In Nazareno v. Station Commander, the record of this case
shows that at about 8:30 o'clock in the morning of 14 December 1988,
one Romulo Bunye II was killed by a group of men near the corner of T.
Molina and Mendiola Streets in Alabang, Muntinlupa, Metro Manila. One
of the suspects in the killing was Ramil Regala who was arrested by the
Police on 28 December 1988. Upon questioning, Regala pointed to
Narciso Nazareno as one of his companions in the killing of the said
Romulo Bunye II.
In view thereof, the police officers, without warrant, picked up Narciso
Nazareno and brought him to the police headquarters for questioning.
The Supreme Court held:
"Evidently, the arrest of Nazareno was effected by the police without
warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was
positively implicated by his co-accused Ramil Regala in the killing of
Romulo Bunye II; and after investigation by the police authorities. As
held in People v. Ancheta:
"The obligation of an agent of authority to make an arrest by reason of a
crime, does not presuppose as a necessary requisite for the fulfillment
thereof, the indubitable existence of a crime.
For the detention to be perfectly legal, it is sufficient that the person in
authority making the arrest has reasonably sufficient grounds to believe
the existence of an act having the characteristics of a crime and that
the same grounds exist to believe that the person sought to be
detained participated therein."
THE PRINCIPLE OF KNOWLEDGE OF PROBABLE CAUSE TO JUSTIFY
WARRANTLESS ARREST
In People v. Malmstedt
The receipt of information by NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession, plus the suspicious

Probable cause as a ground to justify a warrantless arrest in flagrante

was reiterated in the en bane decision in People u. Montilla.

As soon as the appellant had alighted from the passenger jeepney the
informer at once indicated to the officers that their suspect was at hand
pointing to him from the waiting shed, the informer told them that the
marijuana was likely hidden inside the travelling bag and carton box
which appellant was carrying at the time.
The court held that the officers thus realized that he was their man even
if he was simply carrying a seemingly innocent pair of luggage for
personal effects.
The Court therein wrote: "the apprehending officer must have been
spurred by probable cause in effecting an arrest which could be
classified as one in cadence with the instances of permissible arrests set
out in Section 5(a)."
According to the court, the conventional view is that probable cause,
while a relative term the determination of which must be resolved
according to the facts of each case, is understood as having reference
to facts and circumstances which could lead a reasonable, discreet, and
prudent man to believe and conclude as to the commission of an
offense, and that the objects sought in connection with the offense are
in the place sought to be searched.
The court pointed out that under Rule 112 of the Rules of Court, the
quantum of evidence in preliminary investigation is such evidence as
suffices to "engender a well founded belief as to the fact of the
commission of the crime and the respondent's probable guilt thereof.
It has the same meaning as the related phraseology used in other parts
of the same Rule, that is, that the investigating fiscal "finds cause to
hold the respondent for trial," or where "a probable cause exist."
It should, therefore, be in that sense, wherein the right to effect a
warrantless arrest should be considered as legally authorized.

COMPARE:
WHEN WARRANTLESS ARREST BASED ON INFORMATION INVALID
In People v. Aruta, the police was tipped off by his informant that a
certain "Aling Rosa" will be arriving from Baguio City the following day
with a large volume of Marijuana.
The police proceeded to the place at 4:00 p.m. of the following day and
deployed themselves near the PNB. A Victory Liner Bus arrived.
Two females and a male got off, and the pointed to "Aling Rosa" carrying
a traveling bag. The police approached her and inquired about the
contents of the traveling bag which she handed to the police, who, upon
inspection found dried leaves of marijuana packed inside a plastic bag.

(d)
where the accused who were riding a jeepney were stopped
and searched by policeman who had earlier received confidential
reports that the said accused would transport a large quantity of
marijuana; and
(e)
where the moving vehicle was stopped and searched on the
basis of intelligence information and clandestine reports by a deep
penetration agent or spy one who participated in the drug
smuggling activities of the syndicate to which the accused belonged
the said accused where bringing prohibited drugs into the country
Other Cases where there was no Probable Cause
There is, no probable cause where the arresting team was only armed
with knowledge of the suspect's "attire" which the witness could not
even remember.

In determining whether the warrantless search and seizure was valid.

The Court noted that there was ample opportunity to obtain a warrant of
arrest. The identity of the accused was ascertained.
The accused was not acting suspiciously, and distinguished the case:
a.
from People v. Tangliben (supra), where policemen were
confronted with an on the spot tip. Moreover, the policemen knew that
the Victory Liner compound is being used by drug traffickers as their
business address.

The team did not have a physical description of the suspect nor his
name.
They were not even given a specific place within which to target their
search of the suspect, only a vicinity of the Muslim Area in Quiapo,
near the Muslim Mosque.
Yet the arresting team directly zeroed in on the accused and his
companions who were only eating halo-halo at a small restaurant, surely
not a crime in itself.

Criminals must be caught but not at all cost.

There was no classified information that a foreigner would disembark at
Tammocalao beach bearing prohibited drug on the date in question.
CHUA was not identified as a drug courier by a police informer or
agent.
The fact that the vessel that ferried him to shore bore no resemblance
to the fishing boats of the area did not automatically mark him as in
the process of perpetrating an offense.

If there is overwhelming evidence of habitual delinquency, recidivism

or plain criminal proclivity, then this must also be considered. Courts
should look at all factors to determine the predisposition of an accused
to commit an offense in so far as they are relevant to determine the
validity of the defense of inducement.

And despite claims by CID and BADUA that CHUA attempted to flee,
ALMOITE testified that the latter was merely walking and oblivious to
any attempt at conversation when the officers approached him.

Principle of Continuity-in Buy-Bust Operations

In People v. Luaa, a buy-bust operation was conducted against the

accused. After he had gone inside his house and returned with the three
tea bags of marijuana and received the marked money, the designated
poseur-buyer gave the signal to his fellow police officers who closed in
and arrested the accused.
In the course of the arrest, a police officer noticed something bulging at
accused's waistline, which turned out to be an unlicensed .38 caliber
"paltik" with two live bullets.
Accused was charged with illegal possession of firearm.
The search was held to be a valid incident of a lawful arrest.

More significantly, Tangliben was acting sus-piciously.

His actuations and surrounding circumstances led the policemen to
reasonably suspect that Tangliben is committing a crime.
In instant case, there is no single indication that Aruta was acting
suspiciously.
b.
from People v. Malmstedt. In Malmstedt, where there was no
reasonable time for the police authorities to obtain a search warrant,
and his actuations also aroused suspicion of the officers conducting the
operation.
In Aruto, there was time to obtain a search warrant, her identity was
priorly ascertained, and she was not acting suspiciously.
Malmstedt was searched abroad a moving vehicle, a legally accepted
exception to the warrant requirement, Aruta on the other hand, was
searched while she was about to cross the street.
c.
from People v. Bagista, where probable cause was drawn
from the fact that the accused fitted the description given by the
NARCOM informant and that it involves a search of a moving vehicle
plus the fact the police officers erected a checkpoint in view of the
confidential information from the regular informant that a woman
having the same appearance as that of the accused would be bringing
marijuana from up to north.
d.
from Manalili v. Court of Appeals, where the court held that
the policemen had sufficient reason to accost accused to determine if
he was actually "high" on drugs due to suspicious actuations, he was
observed to have reddish eyes and to be walking in swaying manner
he appeared to be trying to avoid the policemen coupled with the fact
that based on the information, this area was a haven for drug addicts.
The Court noted that in all the above-cited cases, there was information
received which became the bases for conducting the warrantless
search.
Furthermore, additional factors and circumstances were present which,
when taken together with the information constituted probable causes
which justified the warrantless searches and seizures in each case.

While SP04 Clemente claims that accused had a "bulging waistline,"

this alone, in the light of the availing circumstances, is insufficient to
constitute probable cause for the arrest of the accused.
In another case, the police officers were informed that accused were
repacking drugs.
Accompanied by an informer, they peeped first through the window
before they saw the activities of the suspects inside the room and
entered the house and arrested the suspects.

BUY-BUST OPERATIONS CONSIDERED AS IN FLAGRANTE ARRESTS

(b)
where an informer positively identified the accused who was
observed to have been acting suspiciously;
(c)

where the accused fled when accosted by policemen;

Buy-Bust Operation and Search Rejected for Not Being Continuous.

Thus, in People v. Enrile, an arrest based on informa-tion of a person
who was entrapped to selling marijuana that the source of the Marijuana
was Enrile and led the police to Enrile's house and after calling for the
latter pointed to him as the source of the marijuana was held as invalid.
In People v. Bautista, an arrest and search based on information of the
poseur-buyer to the police who were outside the house waiting that he
was able to buy the shabu from the appellant inside the house who
immediately went inside and arrested the appellant was held as valid.

Buy-Bust Operations Search and Seizure Pursuant to Buy-Bust

Operation
What is a buy-bust operation?

In People v. Merabueno, the Supreme Court found:

A buy-bust operation is far variant from an ordinary arrest; it is a form of

entrapment which has been repeatedly accepted to be valid means of
arresting violators of the Dangerous Drugs Law.

DURING THE INVESTIGATION OF BASILIO, THE POLICE LEARNED THAT

THE SUPPLIER OF THE MARIJUANA WAS CRUZ. A POLICE TEAM WAS DISPATCHED TO ANTIPOLO, RIZAL, WHERE CRUZ LIVED. THE FIRST MISSION
RETURNED WITHOUT FINDING CRUZ.

They should have first conducted a surveillance considering that the

activities and identities of the suspects were already known and if there
was probable cause, they should have applied for a search warrant.

In a buy-bust operation, the violator is caught in flagrante delicto and

the police officers conducting the operation are not only authorized but
duty-bound to apprehend the violator and to search him for any-thing
that may have been part of or used in the commission of the crime.

The court reiterated the 7 situations of a warrantless search and held

that the arrest, search and seizure do not fall on any of them.

In flagrante arrests are usually made in drug cases during a buy-bust

operation.

In another case, the court noted that the ETC never took the pains of
pointing to such facts, (constituting probable cause) but predicated
mainly its decision on the finding that "accused was caught red-handed
carrying the bag-full of [s]habu when apprehended."

A buy-bust operation is a form of entrapment employed by peace

officers to catch a malefactor in flagrante delicto.
It is the employment by peace officers to catch a malefactor in flagrante
delicto.

The team returned to Antipolo at 7:00 P.M. of the same day. According to
the police, they met Cruz on their way to his house while Cruz claimed
that the police just barged into his house.
But assuming that the version of the police is the correct one, there
was no reasonable basis to place Cruz under arrest without a warrant
and then search him, also without a warrant.
Certainly, the arrest was not made in the course of a "hot pursuit" of
Cruz, because he was not in Marikina during the "buy-bust" operation. In
such a case, the police should have first secured a warrant of arrest and
a search warrant before they arrested and bodily searched Cruz.

In short, there is no probable cause.

At least in People v. Tangliben, the Court agreed with the lower court's
finding that compelling reasons (e.g., accused was acting suspiciously,
on the spot identification by an informant that accused was transporting
prohibitive drug, and the urgency of the situation) constitute of probable
cause impelled.

It is the employment of such ways and means for the purpose of

entrapping or capturing a lawbreaker.
The term, in connection with violation of the Dangerous Drugs Act, is a
form of entrapment employed by peace officers to trap and catch
malefactor in flagrante delicto.

This case should be distinguished from People u. Cuachan, involving a

continuing buy bust operation where after the sale, the shabu was
handed to a policeman a block away who after determining it was
shabu which took only a few minutes immediately proceeded to the
house of the appellant and arrested him.
In the case, the police conducted a buy-bust operation.

In another case, the Solicitor General proposes that the following details
are suggestive of probable cause persistent reports of rampant
smuggling of firearm and other contraband articles, CHUA's watercraft
differing in appearance from the usual fishing boats that commonly
cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines
(he lacked the necessary travel documents or visa), CHUA's suspicious
behavior, i.e., he attempted to flee when he saw the police authorities,
and the apparent ease by which CHUA can return to and navigate his
speedboat with immediate dispatch towards the high seas, beyond the
reach of Philippine laws.
The Court, however, found that these do not constitute "probable
cause."

But, while buy-bust operation is a recognized means of entrapment for

the apprehension of drug pusher, it does not always commend itself as
the most reliable way to go after violators of the Dangerous Drugs Act
as it is susceptible to mistake as well as to harass-ment, extortion and
abuse.
The Court therefore stressed that the "objective" test in buy-bust
operations demands that the details of the purported transaction must
be clearly and adequately shown.
This must start from the initial contact between the poseur-buyer and
the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the
illegal drug subject of the sale.

Tell-tale Clues of Probable Cause Reiterated

(a)
where the distinctive odor of marijuana emanated from the
plastic bag carried by the accused;

The buy-bust operation and the search and seizure pursuant to the buybust operation must be continuous:

In People v. Buenaventura, an arrest based on information of the seller

after he was apprehended in a buy-bust operation that the source of the
marijuana was the accused who was then arrested in a follow-up
operation was held as invalid citing the case of People u. Enrile.

The court held that the arrest, search and seizure were illegal.

No reference was made to Montilla.

In applicable earlier decisions, the Supreme Court held that there was
probable cause in the following instances:

At the same time, however, examining the conduct of the police should
not disable courts into ignoring the accused's predisposition to commit
the crime.

None of the telltale clues, e.g., bag or package emanating the pungent
odor of marijuana or other prohibited drugs confidential report and/or
positive identification by informers of courier(s) of prohibited drug
and/or the time and place where they will transport/ deliver the same,
suspicious demeanor or behavior and suspicious bulge in the waist
accepted by this Court as sufficient to justify a warrantless arrest
exists in this case.

The manner by which the initial contact was made, whether or not
through an initial contact was made, whether or not through an
informant, the offer to purchase the drug, the payment of the "buy-bust"
money, and the delivery of the illegal drug, whether to the informant
alone or the police officer, must be the subject of strict scrutiny by
courts to insure that the law-abiding citizens are not unlawfully induced
to commit an offense.

As planned, Pat. Uggadan and the informant proceeded to the residence

of their quarry while Pfc. Reyes and the other members of the team
posted themselves in strategic places.
After a few minutes, Pat. Uggadan together with the informant, reported
to Pfc. Reyes that he had succeeded in buying shabu from the appellant
at the same time presenting the merchandise to Pfc. Reyes.
After determining it was shabu, Pfc. Reyes and his men immediately
proceeded to the residence of the appellant and found in one of the
rooms several men seated around a table, engaged in pot session and
several paraphernalia.
Pat. Uggadan pointed to the appellant to PFC Reyes as the person who
earlier sold Shabu to him.
Thereupon, Pfc. Reyes frisked accused-appellant and found in his person
the two 100.00 peso bills he gave to Pat. Uggadan as buy-bust money
and a quantity of shabu contained in a plastic bag.
The court justified the warrantless arrest under Section 5, Rule 113 of
the Rules of Court on warrantless arrest and the obligation of the police

to apprehend even without a warrant of arrest. Pat. Uggadan witnessed

the illegal act of selling shabu on the occasion of the buy-bust operation
in front of the room of the accused.

The arrest was held legal and the consequent search which yielded 20
sticks of marijuana was lawful for being incident to a valid arrest.

He did not make the arrest right then and there because there were only
himself and the informant as against the different male and female
voices he heard from both rooms of appellant's house.

The fact that the prosecution failed to prove the sale of marijuana
beyond reasonable doubt does not undermine the legality of the
appellant's arrest.

Considering that the operation took place inside the house of appellant,
understandably Pat. Uggadan and his informant had to get out of the
house and inform their backup that the sale had been consummated.

It is not necessary that the crime should have been established as a fact
in order to regard the detention as legal.

Furthermore, weighty consideration is the fact that, as previously

stated, Pat. Uggadan immediately gave the shabu to Pfc. Reyes who
was only a block away and after the latter had determined that it was
shabu, which only took a few minutes, they all immediately proceeded
to the house of appellant and arrested him.
It was a continuing buy-bust operation which, as the phrase connotes,
commenced with buying shabu and culminated in his arrest. Since his
arrest was lawful, it follows that the incidental search was also valid.
In another case, the arresting officers were informed by the NARCOM
Chief that a transaction had been agreed upon in Las Pinas, Metro
Manila for the delivery of Shabu to take place in Room No. 77 of the
Hyatt Terraces at Baguio City.
Undercover agents waited for the appellant inside the room, but the
latter did not show up in the afternoon, but the following morning.
Appellant with an under-cover agent arrived at Room No. 77.
The latter signaled that appellant had Shabu with him. While the sale
of the Shabu which was agreed upon with a Chinese business man in
Las Pinas, Metro Manila, did not take place in the presence of the
agents, the delivery or attempted delivery of the subject matter took
place in their presence.
The Court held the warrantless arrest of appellant inside Rooir 77 was
merely the culmination of an entrapment operation and that the taking
of shabu from appellant was either done immediately be fore, or was an
incident to a lawful arrest.
The Hot Pursuit Arrest

The legality of detention does not depend upon the actual commission
of the crime, but upon the nature of the deed when such
characterization may reasonably be inferred by the officer or
functionary to whom the law at the moment leaves the decision for the
urgent purpose of suspending the liberty of the citizen.
People v. Euaristo, cited the doctrine in People v. Sucro (supra), when
crime is deemed committed in one's presence e.g., hears the
disturbances created thereby and proceeds at the scene thereof.

a.

First Element: Meaning of Offense Committed

Consequently, under the facts, the firearms taken from Carillo can be
said to have been incidental to a lawful and valid arrest under Sec. 5(b),
Rule 113.

The informant poseur-buyer thereafter returned with another two

sticks of marijuana.
The police officers then proceeded to the corner of 3rd Street and Rizal
Avenue and effected the arrest of appellant.
The Supreme Court with Justice Gutierrez as ponente, held, from the
above facts, that it may be concluded that the arresting police officers
had personal knowledge of facts implicating the appellant with the sale
of marijuana to the informant-poseur-buyer.

6)
People v. Briones Warrantless arrest made by a police
officer based on disclosure by eyewitness who disclosed the identity of
the perpetrator was rejected.
7)
People v. Cendana Arrest based on information from
unknown sources given a day after the commission of the crime was
rejected.
8)
People v. Tonog Arrest based on knowledge of facts
gathered from investigation was held valid.

9)
Nazareno v. Station Commander of Muntinlupa Arrest
based on information of a suspect 14 days aftel commission of crime
held as valid. This is of doubtful validity.
10)
Rolito Go u. Court of Appeals (supra, February 1992) Justice
Feliciano as ponente Arrest 6 days after shooting based on
information of alleged eyewitnesses was held unlawful

Neither could the arrest effected six (6) days after the shooting be
reasonably regarded as effected when [the shooting had] ii fact just
been committed within the meaning of Section 5(b).

The arrest must be made almost immediately as soon after these acts,
not at anytime after the suspicion of the arresting officer begins, no
matter how long ago the offense was committed.

Moreover, none of the arresting officers had any personal knowledge of

facts indicating that petitioner was the gunman who had shot Maguan

The time interval between the actual commission of the crime and the
arrival of the arresting officer must be brief indeed.
The recency contemplated here, in relation to the making of the
warrantless arrest, is the time when the crime was in fact committed,
and not the time when the person making the arrest learned or was
informed of such commission.

The information upon which the police acted had been derived from
statements made by alleged eyewitness to the shooting one stated
that petitioner was the gunman; another was able to take down the
alleged gunman's car plate number which turned out to be registered in
petitioner's wife name.
That information did not, however, constitute personal knowledge.
Personal Knowledge of Facts Based on Information Allowed

1)
Espiritu v. Lim The arrest of the accused one day after
commission of the crime of Inciting to Sedition was held to be valid.

The fact that Macabante, when intercepted by the police, was caught
throwing the marijuana sticks and when confronted, readily admitted
that he bought the same from the accused-appellant clearly indicates
that accused had just sold the marijuana sticks to Macabante, and
therefore, had just committed an illegal act of which the police officers
had personal knowledge, being members of the team which monitored
Sucre's nefarious activity.

The informant, now turned poseur-buyer, returned with two sticks of

marijuana. Captain Castillo again gave said informant marked money to
purchase marijuana.

5)
In People u. Alvarez Arrest based on surveillance by
informant who was once a policeman was held to be valid.

"Just been committed" connotes immediacy in point of time, per dissent

of Justice Teehankee cited by C.J., Fernan in his concurring dissenting in
Umil v. Ramos. It means a very short time ago.

A crime must in fact or actually have been committed first.

Acting on such information and in their pres-ence, their superior,

Captain Castillo, gave the informant marked money to buy marijuana.

In People v. Encinada, the court held that: "Raw intelligence information

is not a sufficient ground for a warrantless arrest."

Petitioner's arrest took place six (6) days after the shooting of Maguan.
The arresting officers obviously were not present, within the meaning of
Section 5(a), at the time petitioner had allegedly who Maguan.

2)
People v. Nazareno
commission of the crime is valid.

In People v. Ramos, an informant apprised the police of the presence of

a drug pusher at the corner of 3rd Street and Rizal Avenue, Olongapo
City.

4)
People u. Sucro, citing People v. Bati Police officers have
personal knowledge of the actual commission of the crime when it had
earlier conducted surveillance activities of the accused.

Second Element: Meaning of just been committed

b.

The present rule abandons the pronouncement in People v. Burgos, that

in arrests without a warrant under Section 6(b), it is not enough that
there is reasonable ground to believe that the person to be arrested
has committed a crime.

The rule now is the indubitable existence of a crime is not necessary to

justify a warrantless arrest.

him the marijuana is invalid.

In this case there was an oral confession.

To justify a warrantless arrest not on Sec. 5(a) but Sec. 5(b), the
Supreme Court held that the usual observation of a bulge on the waist
of Carillo, along with the earlier report of gunfire, as well as the peace
officer's professional instincts, are more than sufficient to pass the tests
of the rules.

Elements:
a.
Offense have been committed;
b.
Offense has just been committed;
c.
Probable cause based on personal knowledge of facts or
circumstances that persons to be arrested committed it.

informer who pointed to the suspect was rejected.

3)

Arrest

made

14

days

after

1)
In People v. Madriaga, personal knowledge based on
information of the co-accused pointing to accused as to source of
marijuana, was held as valid.
2)
In People v. Gerente, the policemen arrested Gerente only
some three (3) hours after Gerente and his companions had killed Blace.

People v. Sucro

They saw Blace dead in the hospital and when they inspected the scene
of the crime, they found the instruments of death; a piece of wood and
a concrete hollow which the killers had used to bludgeon him to death.
The eyewitness, Edna Edwina Reyes, reported the happening to the
policemen and pinpointed her neighbor, Gerente as one of the killers.

4)
Rolito Go v. Court of Appeals Arrest six days after
commission of the crime based on information from alleged eyewitness
held unlawful.

Under those circumstances, since the policemen had personal

knowledge of the violent death of Blace and of facts indicating that
Gerente and two others had killed him, they could lawfully arrest
Gerente without a warrant.

A warrantless arrest three (3) days after commission of the crime or 19

hours thereafter were held to be unlawful.

If they had postponed his arrest until they could obtain a warrant, he
would have fled the law as his two companions did.

c.

3)
In People u. Bautista, held as valid an arrest made by the
station commander, who was outside the house, based on information
of the poseur-buyer after the purchase was made. Said case cited in
U.S. v. Santos, which justified a warrantless arrest on reasonable ground
of suspicion supported by circumstances strong in themselves as to
warrant a reasonable man in believing the accused to be guilty.

Third Element: Personal Knowledge of Facts

Following are the doctrines under the 1985 Rule on the meaning of
Personal Knowledge of Facts Based on Information Rejected
1)
People v. Burgos,
information by suspect rejected.

personal

knowledge

based

on,

However, in People v. Montilla (supra), the court observed that

"although information gathered and passed on by law enforcers are
vague and piece-meal, and not as neatly and completely packaged as
one would expect from a professional spymaster, such tip-offs are
sometimes sucessful as it proved to be in the apprehension of
appellant."
5)
In Sanchez v. Demetriou. The Warrantless arrest based on
the sworn statement of Centeno by an officer who had no personal
knowledge is unlawful but the defect was cured by the filing of charges
and issuance of warrant of arrest.
In People v. AcoZ, a group held up a passenger jeepney Policemen
immediately responded to the report of the crime. One of the victims
saw four persons walking towards Fort Bonifacio, one of whom was
wearing his jacket.
He pointed them to the policemen. When the group saw the policemen
coming, they ran in different directions.
Three were caught and arrested. Each was found in possession of an
unlicensed revolver and charged with illegal possession of firearms.
The accused claimed that the warrantless seizure of firearms was illegal.
The Court rejected their plea and held that the search was a valid
incident of a lawful arrest.
The subsequent search of accused-appellant's person and the seizure
from him of the firearm was likewise lawful.
Personal Knowledge of Facts Based on Reasonable Grounds of Suspicion
Rule is now the Rule
In its resolution denying the Motion for Reconsideration in the Umil v.
Ramos cases, the majority opinion explained the meaning of personal
knowledge of facts, as follows:
"It has been ruled that 'personal knowledge of facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion. (Subjective)
The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested.
(Objective)
A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the
arrest."
In ascertaining whether the arrest without warrant is conducted in
accordance with the conditions set forth in section 5, Rule 113, this
Court determines not whether the persons arrested are indeed guilty of
committing the crime for which they were arrested but whether they are
probably guilty thereof.
Not evidence of guilt but "probable cause" is the reason that can validly
compel the peace officers in the performance of their duties and in the
interest of public order, to conduct an arrest without warrant.
The Courts should not expect of law-enforcers more than what the law
requires of them.
Under the conditions set forth in Section 5, Rule 113, particularly
paragraph (b) thereof, even if the arrested persons are later found to be
innocent and acquitted, the arresting officers are not liable.
But if they do not strictly comply with the said conditions, the arresting
officers can be held liable for the crime of arbitrary detention, for
damages under Article 32 of the Civil Code and/or for other
administrative sanctions.
The same principle was stated in People u. Aruta.

2)

Alih v. Castro, (Need for personal knowledge)

4)
In People u. Saycon, warrantless arrest of debark-ing
passenger from vessel based on information was held valid.

3)

People v. Aminnudin Warrantless arrest based on tip of

COMPARE: People v. Enrile Information by co-accused that Enrile gave

Probable cause in these cases, must only be based on reasonable

ground of suspicion or belief that a crime has been committed or is
about to be committed.

The foregoing standards were also adopted in warrantless "hot pursuit"

arrest.
Thus, in the 1999 case of People u. Doria, the Court en bane speaking
thru Jusice Reynato Puno wrote, "Personal knowledge" of facts arrests
without warrant under Section 5(b) of Rule 113 must be based upon
"probable cause" which means an "actual belief or reasonable grounds
of suspicion" and reiterated the rule in Umil v. Ramos.
In this case, accused-appellant Gaddao was arrested solely on the basis
of the alleged identification made by her co-accused.
P03 Manlangit, however, declared in his direct examination that
appellant Doria named his co-accused in response to his (P03
Manlangit's) query as to where the marked money was, Appellant Doria
did not point to appellant Gaddao as his associate in the drug business,
but as the person with whom he left the marked bills.
This identification does not necessarily lead to the conclusion that
appellant Gaddao conspired with her co-accused in pushing drugs.
Appellant Doria may have left the money in her house. With or without
her knowledge, with or without conspiracy.
Save for accused-appellant Doria's word, the Narcom agents had no
reasonable grounds to believe that she was engaged in drug pushing.

The Court upheld the warrantless arrest and ruled that the blood-stained
pants, having been seized as an incident of a lawful arrest, was
admissible in evidence.
In People v. Gerente, the police arrested the accused three hours after
the victim had been killed. They went to the scene of the crime where
they found a piece of wood and a concrete hollow block used by the
killers in bludgeoning the victim to death. A neighbor of the accused
who witnessed the killing, pointed to him as one of the assailants. The
warrantless arrest was held valid under Rule 113, Sec. 5(b).
In People v. Jay son, there was a shooting. The policemen summoned
to the scene of the crime and found the victim. Accused-appellant was
pointed to them as the assailant only moments after the shooting. In
fact accused-appellant had not gone very far (only ten meters away
from the "lhaw-Ihaw"), although he was then fleeing. The arresting
officers thus acted on the basis of personal knowledge of the death of
the victim and of facts indicating that accused-appellant was the
assailant. The court upheld the warrantless arrests as valid.
In another case, the police officers were informed that accused were
repacking drugs. Accompanied by an informer. They peeped first
through the window before they saw the activities of the suspects inside
the room and entered the house and arrested the suspects.

facts, i.e., supported by circum-stances sufficiently strong in themselves

to create the probable cause of guilt of the person to be arrested.

unreasonable searches and seizures cannot be so carelessly disregarded

as overzealous police officers are sometimes wont to do.

A reasonable suspicion therefore must be founded on probable cause,

coupled with good faith on the part of the peace officers making the
arrest."

Fealty to the constitution and the rights it guarantees should be

paramount in their minds, otherwise their good intentions will remain as
such simply because they have blundered.

To allow the arrest which the NBI intended to make without warrant
would in effect allow them to supplant the courts.

The criminal goes free, if he must, but it is the law that sets him free.

The determination of the existence of probable cause that the persons

to be arrested committed the crime was for the judge to make.
The law authorities a police officer or even an ordinary citizen to arrest
criminal offenders only if the latter are committing or have just
committed a crime.
Otherwise, we cannot leave to the police officers the determination of
whom to apprehend if we are to protect our civil liberties.
This is evident from a consideration of the requirements before a judge
can order the arrest of suspects. Art. Ill, Sec. 2 of the Constitution.
Rule in Drug Cases
The Supreme Court in People v. Saycon pointed out that:

They should have first conducted a surveillance considering that the

activities and identities of the suspects were already known and if
there was probable cause, they should have applied for a search
warrant.

Said the U.S. Supreme Court:

"THE ARREST MUST STAND UPON A FIRMER GROUND THAN MERE
SUSPICION THOUGH THE ARRESTING OFFICER NEED NOT HAVE IN HAND
EVIDENCE WHICH WOULD SUFFICE TO CONVICT.
The quantum of information which constitutes probable cause or
evidence which would warrant a man of reasonable caution in the belief
that a felony has been committed must be measured by the facts of the
particular case.
A significantly lower quantum of proof is required to establish probable
cause than guilt."

The court reiterated the seven (7) situations of a warrantless search and
held that the arrest, search and seizure do not fall on any of them.
ONLY COURTS COULD DECIDE THE QUESTION OF PROBABLE CAUSE
SINCE THE STUDENTS WERE NOT BEING ARRESTED IN FLA-GRANTE
DELICTO
In Posadas v. The Hon. Ombudsman, the NBI agents tried to effect an
arrest four days after commission of the crime and had no personal
knowledge of any fact which might indicate that the two students were
probably guilty of the crime and what they had were the supposed
positive identification of two alleged eyewitnesses, the court held this
is insufficient to justify the arrest without a warrant by the NBI.

Probable cause may, however, not be established simply by showing

that the officer who made the challenged arrest or search subjectively
believed that he had grounds for his action. Good faith alone is not
sufficient.

The Court distinguished the case from that of People v. Tonog, relied
upon by the prosecution to justify the arrest.

The probable cause test is an objective one.

In Tonog, the accused voluntarily went upon invitation of the police

officer who later noticed the presence of blood stains on the pants of
the accused.

The mere subjective conclusion of a police concerning the existence of

probable cause is not binding in the court which must independently
scrutinize the objective facts to determine the existence of probable
cause.

Upon reaching the police station, the accused was asked to take off his
pants for examination at the crime laboratory.

"It is important to note that unlike in the case of crimes like, e.g.,
homicide, murder, physical injuries, robbery or rape which by their
nature involve physical, optically perceptible, overt acts, the defense of
possessing or delivering or transporting some prohibited or regulated
drug is customarily carried out without any external signs or indication
visible to police officers and the rest of the outside world.
Drug "pushers" or couriers do not customarily go about their enterprise
or trade with some external visible sign advertising the fact that they
are carrying or distributing or transporting prohibited drugs.
Thus, the application of the rules in Section 5(a) and (b), Rule 133 of the
Rules of Court needs to take that circumstances into account.
The Court has had to resolve the question of valid or invalid warrantless
arrest or warrantless search or seizure in such cases by determining the
presence or absence of a reasonable or probable cause, before that
such a felony (possessing or transporting or delivering prohibited drugs)
was then in progress.
In Barros, the Court listed the kinds of causes which have been
characterized as probable or reasonable cause supporting the legality
and validity of a warrantless search and a warrantless arrest in cases of
this type:
"THIS COURT HAS IN THE PAST FOUND PROBABLE CAUSE TO
CONDUCT WITHOUT A JUDICIAL WARRANT AN EXTENSIVE SEARCH OF
MOVING VEHICLES IN SITUATIONS WHERE

In assessing the conduct of the police officer, it is imperative that the

facts be judged against an objective standard.

Second, the arresting officer found blood stains an the pants of the
accused, on the basis of which he concluded that the accused probably
committed the crime for which reason the latter was taken into custody.

The test is:

Third, the arrest was made on the same day the crime was committed.

Would the facts available to the officer at the moment of the seizure or
search warrant a man of reasonable caution in the belief that the action
taken was appreciated.

In the words of Rule 113, Sec. 5(b), the crime had "just been committed"
and the arresting officer had "personal knowledge of the facts indicating
that the person to be arrested had committed it."

(1)
there had emanated from a package the distinctive smell
of marijuana;
(2)
agents of the Narcotics Command ("Narcom") of the
Philippine National Police ("PNP") had received a confidential report from
informers that a sizeable volume of marijuana would be transported
along the route where the search was conducted;204
(3)
Narcom agents were informed or "tipped off" by an
undercover "deep penetration" agent that prohibited drugs would be
brought into the country on a particular airline flight on a given date;
(4)
Narcom agents had received information that a Caucasian
coming from Sagada, Mountain Province, had in his possession
prohibited drugs and when the Narcom agents confronted the
accused Caucasian, because of a conspicuous bulge in his waistline,
he failed to present his passport and other identification papers when
requested to do so; and
(5)
Narcom agents had received confidential information that a
woman having the same physical appearance as that of the accused
would be transporting marijuana."

Personal Knowledge of the Death of Victim and Facts Indicating that

Accused Was the Assailant

The court reiterated the rule in People v. Doria (supra), that:

Caution:

'"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 government's drive against illegal drugs needs the support of every
citizen.

In doing so, however, the expertise of the officer are to be taken into
account.

The question in that case involved the admissibility of the maong pants
taken from the accused.
It is clear that Tonog does not apply to this case.

This is as it should be for there would be little merit in securing able

trained men to guard the public peace if their actions were to be
measured by what might be probable cause to untrained civilians.

In People v. Tonog, the police found the lifeless body of a person with
several stab wounds. An informer pointed to the accused as the person
who had killed the victim. That afternoon, police officers arrested the
accused. On their way to the police station, a policeman noticed
bloodstains on the accused's pants which, when examined, was found to
be the same blood type "0" found on the fatal knife.

First, the accused in that case voluntarily went with the police upon the
latter's invitation.

The grounds of suspension are reasonable when, the absence of actual

belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense is based on actual

Rule on Escapees
When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
An officer may arrest without a warrant, a prisoner who has escaped
from custody after trial and commitment, and it has been held that even
a private person may without a warrant, arrest a convicted felon who
has escaped and is at large.
An officer may arrest without a warrant, a prisoner who has escaped
from custody after trial and commitment.

The court held that the arrest, search and seizure were illegal.
If there is no showing that the person who effected the warrantless
arrest had, in his own right, knowl-edge of facts implicating the person
arrested to the perpetration of a criminal offense, the arrest is legally
objectionable.

Nothing can destroy a government more quickly than its failure to

observe its own laws, or worse, its disre-gard of the charter of its own
existence.

Even a private person may, without a warrant, arrest a convicted felon

who has escaped and is at large, since he might also, before
conviction, have arrested the felon.
Evasion of service of sentence; Arrest, without a warrant, principle
applied. Rule 113 of the Revised Rules of Court may be invoked in
support of this conclusion; for, under Section 6(c) thereof one of the
instances when a person may be validly arrested without warrant is
where he has escaped from confinement.
Undoubtedly, this right of arrest without a warrant is founded on the
principle that at the time of the arrest, the escapee is in the continuous
act of committing a crime evading the service of his sentence.
SEC. 6.
Time of Making Arrest
SEC. 7.
Method of Arrest by Officer by Virtue of Warrant
SEC. 8.
Method of Arrest by Officer Without Warrant
Duty of Arresting Officer
At the time a person is arrested, it shall be the duty of the arresting
officer to inform him of the reason for the arrest and he must be shown
the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain silent and to
counsel, and that any statement he might make could be used against
him.
The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient means
by telephone if possible or by letter or messenger.
It shall be the responsibility of the arresting officer to see to it that this
is accomplished.
No custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, or by any person
on his behalf, or appointed by the court upon petition either of the
detainee himself or by anyone on his behalf.
The right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel.

But it should not undermine the fundamental rights of every citizen as

enshrined in the Constitution.

Any statement obtained in violation of the procedure herein laid down,

whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.
Procedure, Guidelines and Duties of Arresting or Investigating Officer

The

constitutional

guarantee

against

warrantless

arrests

and

Considering the heavy penalty of death and in order to ensure that the
evidence against an accused were obtained through lawful means, the
Court as guardian of the rights of the people, and in the light of the new
legal developments, laid down an updated procedure, guidelines and
duties which the arresting, detaining, inviting or investigating officer or
his companions must do and observe at the time of making arrest and
again at and during the custodial interrogation in accordance with the
Constitution, jurisprudence and Republic Act No. 7438:
a.
The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and must be shown the
warrant of arrest, if any.
Every other warnings, information or com-munication must be in a
language known to and understood by said person;
b. He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
c.
He must be informed that he has the right to be assisted at
all times and have the presence of an independent and competent
lawyer, preferably of his own choice;
d.
He must be informed that if he has no lawyer or cannot
afford the services of a lawyer, one will be provided for him, and that a
lawyer may also be engaged by any person in his behalf or may be
appointed by the court upon petition of the person arrested or one
acting in his behalf;
e.
That whether or not the person arrested has lawyer he must
be informed that no custodial investigation any form shall be conducted
except in the presence of his counsel or after a valid waiver has been
made;
f.
The person arrested must be informed that at any time, he
has the right to communicate or confer by the most expedient means
telephone, radio, letter or messenger with his lawyer (either retained
or appointed), any member of his immediate family, or any medical
doctor, priest or minister chosen by him or any one from his immediate
family or by counsel or be visited or by conferences with duly
accredited national or international non-governmental organization. It
shall be the responsibility of the officer to ensure that this is
accomplished;
g.
He must be informed that he has the right to waive any of
said rights provided it is made voluntarily, knowingly and intelligently
and ensure that he understood the same;
h.
In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in writing AND in the
presence of counsel, otherwise, he must be warned that the waiver is
void even if he insist on his waiver and chooses to speak;
i.
That the person must be informed that he may indicate in
any manner at any stage of the process that he does not wish to be
questioned with warning that once he makes such indication, the police
may not interrogate him if the same had not yet commenced or the
interrogation must ceased (sic) if it has already begun;

j.
The person arrested must be informed that his initial waiver
of his right to remain silent, the right to counsel or any of his rights does
not bar him from invoking it at any time during the proc-ess regardless
of whether he may have answered some questions or volunteered some
statement; and

AS USED IN THIS ACT, "CUSTODIAL INVESTIGATION" SHALL INCLUDE THE

PRACTICE OF ISSUING AN "INVITATION" TO A PERSON WHO IS
INVESTIGATED IN CONNECTION WITH AN OFFENSE HE IS SUSPECTED TO
HAVE COMMITTED, WITHOUT PREJUDICE TO THE LIABILITY OF THE
"INVITING" OFFICER FOR ANY VIOLATION OF LAW.

k.
He must also be informed that any statement or evidence as
the case may be obtained in violation of any of the foregoing whether
inculpatory or exculpatory, in whole or in part shall be inadmissible in
evidence.

SEC. 4 A) ANY ARRESTING PUBLIC OFFICER OR EMPLOYEE, OR ANY

INVESTIGATING OFFICER, WHO FAILS TO INFORM ANY PERSON
ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION OF HIS
RIGHT TO REMAIN SILENT AND TO HAVE COMPETENT AND
INDEPENDENT COUNSEL PREFERABLY OF HIS OWN CHOICE, SHALL
SUFFER A FINE OF SIX THOUSAND PESOS (P6,000.00) OR A PENALTY OF
IMPRISONMENT OF NOT LESS THAN EIGHT (8) YEARS BUT NOT MORE
THAN TEN (10) YEARS, OR BOTH.

SEC. 9.
Method of Arrest by Private Person
SEC. 10.
Officer may Summon Assistance
SEC. 11.
Right of Officer to Break into Building or Enclosure
SEC. 12.
Right to Break Out from Building or Enclosure
SEC. 13.
Arrest After Escape or Rescue
SEC. 14.
Right of Attorney or Relative to Visit Person arrested
Under Republic Act No. 7438:
"SECTION 2(B) ANY PUBLIC OFFICER OR EMPLOYEE, OR ANYONE
ACTING UNDER HIS ORDER OR IN HIS PLACE, WHO ARRESTS, DETAINS
OR INVESTIGATES ANY PERSON FOR THE COMMISSION OF AN OFFENSE
SHALL INFORM THE LATTER, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT AND TO HAVE
COMPETENT AND INDEPENDENT COUNSEL, PREFERABLY OF HIS OWN
CHOICE, WHO SHALL AT ALL TIMES BE ALLOWED TO CONFER PRIVATELY
WITH THE PERSON ARRESTED, DETAINED OR UNDER CUSTO-DIAL
INVESTIGATION.
If such person cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the
investigating officer.
(a) Any person arrested or detained or under custodial inves-tigation
shall be allowed visits by or conferences with any member of his
immediate family, or any medical doctor or priest or religious minister
chosen by him or by any member of his immediate family or by his
counsel, or by any national non-governmental organization duly
accredited by the Commission on Human Rights or by any international
non-governmental organization duly accredited by the Office of the
President.
The person's "immediate family" shall include his or her spouse, fiance
or fiancee, parent or child, brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece, and guardian or ward.

The penalty of perpetual absolute disqualification shall also be

imposed upon the investigating officer who has been previously
convicted of a similar offense.

arrest the other and intent on the part of the other to submit, under
the belief and impression that submission is necessary.1
a.

A letter-invitation is equivalent to arrest.

Where the invitation comes from a powerful group composed

predominantly of ranking military officers and the designated
interrogation site as a military camp, this is obviously a command or
an order of arrest.
b.
Under R.A. No. 7438, the requisites of a custodial
interrogation are applicable even to a person not formally arrested but
merely invited for questioning,
2. Illegality of Arrest Does Not Render the Proceedings Void where No
timely Objection to the Irregularity is Made
a.

See also People v. Macam3 for waiver of illegality of arrest.

A motion to quash should be filed.

THE SAME PENALTIES SHALL BE IMPOSED UPON A PUBLIC OFFICER OR
EMPLOYEE, OR ANYONE ACTING UPON ORDERS OF SUCH INVESTIGATING
OFFICER OR IN HIS PLACE, WHO FAILS TO PROVIDE A COMPETENT AND
INDEPENDENT COUNSEL TO A PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION FOR THE COMMISSION OF AN OFFENSE IF
THE LATTER CANNOT AFFORD THE SERVICES OF HIS OWN COUNSEL.
B) ANY PERSON WHO OBSTRUCTS, PREVENTS OR PROHIBITS ANY
LAWYER, ANY MEMBER OF THE IMMEDIATE FAMILY OF A PERSON
ARRESTED, DE-TAINED OR UNDER CUSTODIAL INVESTIGATION, OR ANY
MEDICAL DOCTOR OR PRIEST OR RELIGIOUS MINISTER CHOSEN BY HIM
OR BY ANY MEMBER OF HIS IMMEDIATE FAMILY OR BY HIS COUNSEL,
FROM VISITING AND CONFERRING PRIVATELY WITH HIM, OR FROM
EXAMINING AND TREATING HIM, OR FROM MINISTERING TO HIS
SPIRITUAL NEEDS, AT ANY HOUR OF THE DAY OR, IN URGENT CASES, OF
THE NIGHT SHALL SUFFER THE PENALTY OF IMPRISONMENT OF NOT
LESS THAN FOUR (4) YEARS NOR MORE THAN SIX (6) YEARS, AND A
FINE OF FOUR THOUSAND PESOS (P4,000.00).

The illegality of the arrest or the procedure in acquiring jurisdiction of

the person of an accused must be raised before plea.
[I]t is too late for appellant to raise the question of his arrest without a
warrant.
When accused-appellant was arrested and a case was filed against him,
he pleaded not guilty upon arraignment, participated in the trial and
presented his evidence.
Appellant is thus estopped from questioning the legality of his arrest.
It is well-settled that any objection involving a warrant of arrest or
procedure in the acquisition by the court of jurisdiction over the person
of an accused must be made before he enters his plea, otherwise the
objection is deemed waived.
Besides, this issue is being raised for the first time by appellant.

UNDER SEC. 2(D), REPUBLIC ACT NO. 7348 ANY EXTRAJUDICIAL

CONFESION MADE BY A PERSON, ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION" (WHICH SHALL INCLUDE AN "INVITATION
FOR INVESTIGATION" SHALL BE IN WRITING AND SIGNED BY SUCH
PERSON IN THE PRESENCE OF HIS COUNSEL OR IN THE LATTER'S
ABSENCE, UPON A VALID WAIVER, AND IN THE PRESENCE OF ANY OF
THE PARENTS, ELDER BROTHERS AND SISTERS, HIS SPOUSE, THE
MUNICIPAL MAYOR, THE MUNICIPAL JUDGE, DISTRICT SCHOOL
SUPERVISOR, OR PRIEST OR MINISTER OF THE GOSPEL AS CHOSEN BY
HIM; OTHERWISE, SUCH EXTRAJUDICIAL CONFESSION SHALL BE
INADMISSIBLE AS EVIDENCE IN ANY PROCEEDING.
In other words, if there is a valid waiver, and the lawyer's presence is
waived, the confession must still be signed in the presence of any
persons enumerated above.
1. Application of Actual Force, Manual Touching of the Body, Physical
Restraint or a Formal Declaration of Arrest is Not Required
It is enough that there be an intent on the part of one of the parties to

He did not move for the quashal of the information before the trial court
on this ground.
Consequently, any irregularity attendant to his arrest, if any, was cured
when he voluntarily submitted himself to the jurisdiction of the trial
court by entering a plea of not guilty and by participating in the trial.
Moreover, the illegal arrest of an accused is not sufficient cause for
setting aside a valid judgment rendered upon a sufficient complaint
after the trial free from error.
b.
Thus, the unlawfulness of an arrest does not affect the
jurisdiction of the Court.
In other words, the illegal arrest of an accused is not sufficient cause for
setting aside a valid judgment rendered upon a sufficient complaint
after trial free from error.