REMEDIAL LAW REVIEWER

11

2012 UP LAW
BAR REVIEWER
REMEDIAL
Criminal Procedure LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
Subject Head |Eden
Catherine Mopia
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner Crim Pro Head | Arvin Razon
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UP LAW BAR OPERATIONS COMMISSION

  ARREST of person or
Criminal Procedure  VOLUNTARY SUBMISSION by the person

REMEDIAL LAW Voluntary appearance of the accused is

Criminal Procedure I. General Matters accomplished by:
Civil Procedure II. Prosecution of Offenses  His pleading to the merits (filing a motion to quash
Evidence III. Prosecution of Civil Action (except if the ground is to question the
Special Proceedings IV. Preliminary Investigation jurisdiction of the court, e.g. re validity of arrest,
V. Arrest over the person [Miranda vs Tuliao (2006)]),
appearing for arraignment, or entering trial) or
VI. Bail
 By filing Bail
VII. Rights of the Accused
VIII. Arraignment and Plea Jurisdiction Over the Jurisdiction Over The
IX. Motion to Quash Subject Matter Person of the Accused
X. Pre-trial Derived from the law. It May be acquired by
XI. Trial can never be acquired consent of the accused
XII. Judgment solely by consent of the or by waiver of
XIII. New Trial or Reconsideration accused. objections.
XIV. New Appeal The absence of court‘s Failure of the accused to
XV. Search and Seizure jurisdiction over the make objection in time
XVI. Provisional Remedies subject matter may be would constitute a
raised at any stage of waiver of the objection.
the proceeding. The
I. GENERAL MATTERS right to make such
objection is never
waived.
A. Distinguish Jurisdiction over
subject matter from jurisdiction over B. Requisites for exercise of criminal
person of the accused jurisdiction
Jurisdiction over Subject Matter
 WON the court has jurisdiction over the offense by
 Jurisdiction over the class of cases to which the
virtue of the imposable penalty and its nature
particular case belongs; It is defined by law;
(SUBJECT MATTER JURISDICTION)
determined by the extent of the penalty which the
 WON the court has jurisdiction over the person of
law imposes based on the facts as recited in the
the accused
complaint/information constitutive of the offense
 WON the action has been filed within the
charged.
TERRITORIAL JURIDICTION of the court
- Refers to VENUE (see below) or the place where
General rule: The court‘s jurisdiction to try a
the case is to be tried. The action should be
criminal action is to be determined by the law at
instituted and tried in the municipality or
the time of the institution of the action. [Palana
territory where offense has been committed or
vs People (2007)] Succeeding legislation placing
where any one of the essential ingredients
jurisdiction in another tribunal will not affect
thereof took place. [Sec 15(a), Rule 110]
jurisdiction already obtained by a court.
- For transitory/ continuing offenses, the courts
- Principle of adherence of jurisdiction/continuing
of the territories where the essential ingredients
jurisdiction- jurisdiction continues until the
of the crime took place have concurrent
court has done all that it can do in the exercise
jurisdiction. The first court taking cognizance of
of that jurisdiction. Once vested, it cannot be
the case will exclude the others [People vs
withdrawn or defeated by a subsequent valid
Grospe (1988)]
amendment of the information. [People vs
Chupeco (1965)]
C. Jurisdiction of Criminal courts
Exception: Where the succeeding statute expressly
provides, or is construed that it is intended to How Determined
operate to actions pending before its enactment,  Determined by the allegations of the complaint or
in which case the court where the criminal action information.
is pending is ousted of jurisdiction and the pending  By examination of the complaint/information to
action will have to be transferred to the other ascertain that the facts set out and punishment
tribunal, which will continue the proceeding. fall under jurisdiction of court. [People vs Ocaya
(1978)]
Jurisdiction over the Person of the Accused  Jurisdiction over Complex Crimes (2003 Bar):
The person charged with the offense must have been lodged with the court having jurisdiction to
brought to its forum for trial, forcibly by warrant of impose the maximum and most serious penalty
arrest or upon his voluntary submission to the court. imposable on an offense forming part of the
[Antiporda vs Garchitorena (1999), citing Arula vs complex crime. [Cuyos vs Hon. Garcia (1988)]
Espino (1969)]

Acquired either by:

 REMEDIAL LAW REVIEWER

Military Courts Exception: When, as determined by the ordinary

court during arraignment, the offense is service-
General rule: Ordinary courts will have jurisdiction oriented, then it will be tried by the court martial.
over cases involving members of the armed forces, Provided: the President may, in the interest of 13
and other persons subject to military law, including justice, order/direct at any time before arraignment
members of the Citizens Armed Forces Geographical that any such crimes/offenses be tried by the proper
Units who commit crimes under the RPC or special civil courts.
laws, regardless of who the co-accused or victims
are.

Jurisdiction of Courts

MTC/MeTC/MCTC RTC SANDIGANBAYAN

 Exclusive original jurisdiction over  Exclusive original jurisdiction in  Exclusive original jurisdiction in
all violations of city/municipal all criminal cases not within the those cases expressly
ordinances committed within their exclusive jurisdiction of any enumerated in PD 1606, as
respective territorial jurisdiction. court/tribunal/body. [Sec. 20, BP amended by RA 8249: violations
[Sec. 32(1), BP 129] 129] of RA 3019, RA 1379, and
 Exclusive original jurisdiction over Exception: Those now falling Chapter II, Section 2, Title VII,
all offenses punishable with under the exclusive and Book II of the RPC
imprisonment not exceeding 6 years concurrent jurisdiction of the Officials enumerated are the ff:
irrespective of the amount of fine, Sandiganbayan, which shall - Officials of the executive
and regardless of other imposable hereafter be exclusively taken branch occupying the
accessory or other penalties, cognizance of by the latter. [Sec. positions of regional director
including the civil liability arising 20, BP 129] and higher, otherwise
from such offenses or predicated  Criminal cases where one or more classified as Grade '27' and
thereon, irrespective of kind, of the accused is below 18 years higher, of the Compensation
nature, value, or amount thereof. of age but not less than 15 years, and Position Classification Act
[Sec. 32(2), BP 129] or where one or more of the of 1989 (RA 6758)
- Provided, however, that in victims is a minor at the time of - Members of Congress and
offenses involving damage to the commission of the offense [RA officials thereof classified as
property through criminal 9344] Grade'27'and up under the
negligence they shall have  Cases against minors cognizable Compensation and Position
exclusive original jurisdiction under the Dangerous Drugs Act, as Classification Act of 1989
thereof. [Sec. 32(2), BP 129] amended [RA 8369, Family Courts - Members of the judiciary
Exception: Cases falling within the Act of 1997] without prejudice to the
exclusive original jurisdiction of  Violations of Republic Act No. provisions of the Constitution
RTCs and of the Sandiganbayan. 7610, the Child Abuse Act. - Chairmen and members of
[Sec. 32, BP 129]  Cases of domestic violence against Constitutional Commissions,
 Cases classified under the Revised women and children. If an act without prejudice to the
Rules on Summary Proceedings: [SC committed against women and provisions of the Constitution
Resolution, October 15, 1991] children likewise constitute a  Other offenses or felonies
- Violations of traffic laws/rules/ criminal offense, the accused or whether simple or complexed
regulations; batterer shall be subject to with other crimes committed by
- Violations of rental law; criminal proceedings and the public officials and employees
- Cases where the penalty corresponding penalties. [RA 8369, in relation to their office
prescribed by law for the offense Family Courts Act of 1997]
charged is imprisonment not  Violations of intellectual property Requisites:
exceeding 6 months, or a fine not rights [A.M. No. 03-03-03-SC - Accused is any one of the
exceeding P1,000, or both, (2003); RA 8293] public officials enumerated in
irrespective of other imposable  Money Laundering Cases [RA 9160] subsec. (a) of Sec. 4 of Ra
penalties, accessory or Exception: those committed by 8249, grade 27 or higher
otherwise, or of the civil liability public officers and private persons - Accused commits any other
arising therefrom: Provided, who are in conspiracy with such offense or felony, than those
however, that in offenses public officers shall be under the specified in subsec. (a),
involving damage to property jurisdiction of the Sandiganbayan whether simple or complexed
through criminal negligence, this with other crimes
Rule shall govern where the - The offender commits such
imposable fine does not exceed other offense or felony in
P10,000. relation to his office
Exception: a criminal case falling  Cases filed in pursuant to and in
under the aforementioned list connection with EO 1, 2, 14, 14-
where the offense charged is A, issued in 1986
necessarily related to another
criminal case subject to the
ordinary procedure.
 REMEDIAL LAW REVIEWER

MTC/MeTC/MCTC RTC SANDIGANBAYAN

14
 Violations of BP 22 [A.M. No. 00-11-
01-SC (2003)]
 Special jurisdiction to decide on
applications for bail in criminal
cases in the absence of all RTC
judges in a province or city [Sec.
35, BP 129]
4. When injunction may be issued to  In offenses cognizable by inferior courts, the
restrain criminal prosecution complaint or information is filed directly with said
courts or the complaint is filed with the fiscal.
[Sec. 1(b), Rule 110]
General rule: The prosecution of a criminal case,
 In Metropolitan Manila and other chartered cities,
even at the stage of preliminary investigation and
the complaint may be filed with the office of the
reinvestigation, may not be enjoined by
public prosecutor unless otherwise provided in
prohibition/injunction.
their charters. [Sec. 1(b), Rule 110]
 The criminal action is commenced when the
Rationale: Public interest requires that criminal acts
complaint or information is filed in court.
be immediately investigated and prosecuted for the
protection of society.
Effect of the Institution of criminal action on
Exceptions (Bar 1999) the prescriptive period (Bar 1993)
 To afford protection to the constitutional rights of
the accused; General Rule: The institution of a criminal action
 Necessary for the orderly administration for shall interrupt the running of the period of
justice or to avoid multiplicity of actions; prescription of the offense charged unless otherwise
 There is a prejudicial question which is sub judice; provided in special laws. [Sec. 1, Rule 110]
 The acts of the officer are without or in excess of
authority; Prescription is interrupted with the filing of the case
 The prosecution is under an invalid even if the court is without jurisdiction, even if it be
law/ordinance/regulation; merely for purposes of preliminary examination or
 When double jeopardy is clearly apparent; investigation. [Francisco vs CA (1983)]
 The court has no jurisdiction over the offense;
 A case of persecution rather than prosecution; Exception: The Court held that the interruption of
 The charges are manifestly false and motivated by the prescriptive period upon the institution of the
the lust for vengeance; complaint under Sec.1 of Rule 110 does not apply to
 There is clearly no prima facie case against the cases for violation of special acts and municipal
accused and MTQ on that ground has been denied; ordinances. This is governed by Act No. 3326 and is
[Samson vs Guingona (2000)] interrupted only by the institution of judicial
 Preliminary injunction has been issued by the SC proceedings (not administrative proceedings) for its
to prevent the threatened unlawful arrest of investigation and punishment. [Zaldivia vs Reyes
petitioners. (1992)]

However, in Sanrio Company Ltd. vs Lim (2008), the

SC confirmed that under Section 2 of Act 3326, the
II. PROSECUTION OF OFFENSES prescriptive period for violation of special laws
starts on the day such an offense was committed and
1. Criminal actions, how instituted is interrupted by the institution of proceedings
against the respondent. In this case petitioner filed
(Bar 1999) its complaint-affidavit with the TAPP of DOJ, and as
such the prescriptive period was tolled.
In general
A criminal action is commenced in this jurisdiction In Panaguiton, Jr. vs DOJ (2008), the Court declared
by the filing of a complaint or information. The that they cannot uphold the position that only the
complaint may be filed either with the MTC or with a filing of a case in court can toll the running of the
public prosecutor for purposes of conducting a prescriptive period. It can also be effectively tolled
preliminary investigation. by the filing of the BP 22 petition before the Office
of the Prosecutor.
Institution and Commencement of actions
 For offenses which require a preliminary In SEC v Interport Resources Corporation (2008), the
investigation pursuant to section 1 of Rule 112 Court held that the prescriptive period is interrupted
(where the penalty prescribed by law is at least by commencing the proceedings for the prosecution
four (4) years, two (2) months and one (1) day of the accused, accomplished by initiating the
without regard to the fine), the criminal action is preliminary investigation by the SEC, which was
instituted by filing the complaint with the declared as equivalent to the PI conducted by the
appropriate officer for PI. [Sec. 1(a), Rule 110] DOJ in criminal cases.
 REMEDIAL LAW REVIEWER

proceeds. Death after filing the complaint would

Note: The above cases involve violation of special not deprive the court of the jurisdiction to try
laws. [Riano] the case.
- The State shall initiate the action on behalf of 15
2. Who may file them, crimes that the offended party in case of his
death/incapacity and he has no known
cannot be prosecuted de officio (Bar parents/grandparents/ guardians.
1990, 2000) - In adultery/concubinage, such death does not
extinguish the criminal liability of accused.
General Rule: All criminal actions either
commenced by complaint or by information shall be  Desistance by offended party
prosecuted under the direction and control of a - It does not bar the People of the Philippines
public prosecutor [Rule 110, Sec. 5] from prosecuting the criminal action, but it
operates as a waiver of the right to pursue civil
The public prosecutor is a quasi-judicial officer and indemnity.
a representative of sovereignty whose obligation to - An affidavit of desistance cannot justify
govern impartially is as compelling as its obligation dismissal of the complaint if made after (and
to govern at all. not before) the institution of the criminal
action.
Exception: In case of (1) heavy work schedule of the
public prosecutor or (2) in the event of lack of public  Pardon by offended party
prosecutors, the private prosecutor may be - In rape, seduction, abduction and acts of
authorized in writing by the Chief of the Prosecution lasciviousness of a minor – The pardon will be
Office or the Regional State Prosecution to effective if given by both parents and the
prosecute the case subject to the court‘s approval. offended party.
The authority will continue up to the end of the trial - In seduction, abduction and acts of
even in the absence of a public prosecutor until lasciviousness - Express pardon by the offended
revoked or withdrawn. party, parents, grandparents or guardian will
prevent prosecution. [Rule 110, Sec. 5]
The private prosecutor is the attorney representing - The parents/grandparents/guardian of the
the offended where the civil action for recovery of offended minor (in that order) cannot extend a
civil liability is instituted with the criminal case. valid pardon without conformity of the offended
party, even if the latter is a minor. [US v. Luna
Cases that cannot be prosecuted de oficio (1902)]
- If the offended woman is of age and not
Those which cannot be prosecuted except upon incapacitated, only she can extend a valid
complaint filed by the aggrieved/offended party are pardon which would absolve the offender.
the following:
 Adultery/concubinage [Sec. 5, Rule 110] General rule: Pardon must be made before the
 Seduction, abduction, acts of lasciviousness filing of the criminal complaint in court.
 Defamation which consists of imputation of any of
the foregoing offenses. Exception: In rape, where marriage between the
offender and the offended party would be
Rationale: The aggrieved party might prefer to effective as pardon even when the offender has
suffer the outrage in silence rather than go through already commenced serving his sentence.
the scandal of a public trial.
 If there is more than one accused, the pardon
Offended parties who can file the complaint must be extended to all offenders.
 In adultery and concubinage – The offended  Marriage between offender and offended party.
spouse. Both guilty parties should be included if  Pardon or desistance extinguishes civil liability.
both are alive. [Sec 5, Rule 110] However, a  Pardon or express condonation has the effect of
criminal prosecution will not prosper if the waiving the civil liability with regard to the
offended party consented to the offense. interest of the injured party. Liability arising from
 Seduction, abduction and acts of lasciviousness – an offense is extinguished in the same manner as
The offended party or her parents, grandparents, other obligations.
or guardian, nor, in any case, if the offender has
been expressly pardoned by them. [Sec 5, Rule Under Sec. 27 of RA 7610, complaints on cases of
110] unlawful acts mentioned in the law committed
 In oral defamation – can only be brought upon against children, may be filed by any of the ff:
instance and upon complaint of the offended  Offended party
party.  Parents or guardians
 Ascendant or collateral relative within the third
Effect of degree of consanguinity
 Death of offended party  Officer, social worker, or representative of a
- Once a complaint is filed, the will of the licensed child-caring institution
offended party is ascertained and the action  Officer or social worker of the DSWD
 Barangay chairman
 REMEDIAL LAW REVIEWER

 At least 3 concerned, responsible citizens where in accordance with the evidence [Bernabe vs
the violation occurred. Bolinas, (1966)].
16
3. Criminal actions, when enjoined  After a case is filed
- Once a criminal case has been filed in court, it
General rule: The prosecution of a criminal case is the prosecutor‘s duty, regardless of his
may not be enjoined by prohibition/injunction. personal convictions or opinions, to proceed
with the presentation of his evidence to enable
Rationale: Public interest requires that criminal acts the court to arrive at its own judgment as to the
be immediately investigated and prosecuted for the accused‘s culpability.
protection of society. - After an action has been filed in court, the
prosecutor has no power to dismiss the action
Exceptions (Bar 1999) without the court‘s consent.
 To afford protection to the constitutional rights of
While the Secretary of Justice has the authority to
the accused;
review the acts of his subordinates in criminal cases,
 Necessary for the orderly administration for
the court has always has the discretion to try a
justice or to avoid multiplicity of actions;
motion to dismiss which the prosecution may file
 There is a prejudicial question which is sub judice;
after the Secretary of Justice reverses an appealed
 The acts of the officer are without or in excess of
decision. [Roberts Jr. vs CA, (1996)]
authority;
 The prosecutions is under an invalid
The trial court is not bound to adopt the resolution
law/ordinance/regulation;
of the Secretary of Justice since it is mandated to
 When double jeopardy is clearly apparent;
independently evaluate or assess the merits of the
 The court has no jurisdiction over the offense;
case and it may either agree or disagree with the
 A case of persecution rather than prosecution;
recommendation of the Secretary of Justice.
 The charges are manifestly false and motivated by
the lust for vengeance;
 There is clearly no prima facie case against the Effects of the lack of intervention by the
accused and MTQ on that ground has been denied; fiscal in the trial
[Samson vs Guingona (2000)] Although the private prosecutor had previously been
 Preliminary injunction has been issued by the SC authorized by the special counsel to present the
to prevent the threatened unlawful arrest of evidence for the prosecution, in view of the absence
petitioners. of the City Fiscal at the hearing, it can‘t be said that
the prosecution of the case was under the control of
the City Fiscal. It follows that the evidence
4. Control of prosecution presented by the private prosecutor at said hearing
could not be considered as evidence for the plaintiff
General Rule: All criminal actions commenced by a
[People vs Beriales, (1976)].
complaint or information shall be prosecuted under
the direction and control of the prosecutor. [Sec. 5,
Rule 110] 5. Sufficiency of Complaint or
Information
Exception: In case of heavy work schedule of the
public prosecutor or in the event of lack of public Complaint defined
prosecutors,
 The private prosecutor may be authorized in A sworn written statement charging a person with an
writing by the Chief of the Prosecution Office or offense, subscribed by the offended party, any
the Regional State Prosecutor to prosecute the peace officer or other public officer charged with
case subject to the approval of the court. the enforcement of the law violated. [Sec. 3, Rule
 The authority may be revoked or withdrawn. [Sec. 110]
5, Rule 110]
 Criminal action is still prosecuted under the  Persons authorized to file the complaint:
direction and control of the public prosecutor. - Offended party
[Riano] - Any peace officer
- Other public officer charged with the
Extent of the prosecutor’s control enforcement of the law violated.
 Filed in the name of the People of the Philippines.
 Prior to the filing of the case [Sec 2, Rule 110]
- The prosecutor has the discretion to file or not  Complaint refers to private crimes.
to file a criminal action.  Criminal cases under the Revised Rules on
- The prosecutor is vested with discretion as to Summary Procedure shall be either by complaint
who is to prosecute and for what; he cannot be or by information; provided that in Metro Manila
compelled to file a particular information. and in chartered cities, the criminal action may
However, if the evidence presented at the PI only be commenced by the filing of an information
leaves no doubt as to what crime was (which means by the prosecutor), except when the
committed and by whom, then mandamus is offense cannot be prosecuted de oficio.
available to compel the prosecuting officer to
file the corresponding complaint or information
 REMEDIAL LAW REVIEWER

 The complaint must be under oath. But lack of knowledege of the facts that constitute the offense.
oath is not a formal defect and will not invalidate [People vs Cinco (2009)]
a judgment.
Name of the accused 17
Information defined  It must include the name and surname of the
accused, as well as any appellation or nickname by
An accusation in writing, charging a person with an which he has been or is known.
offense, subscribed by the prosecutor and filed with  If the name cannot be ascertained, he must be
the court. [Sec. 4, Rule 110; People vs Cinco (2009)] described under a fictitious name with a
statement that his true name is unknown. His true
 It is filed by the prosecutor and need not be under name will be inserted if eventually disclosed or
oath. But it must be signed and subscribed by the appears in some manner to the court. [Sec. 7, Rule
fiscal/prosecutor. 110]
 What the prosecutor signs under oath is the  If there are more than 1 accused, name all of
certification that he has conducted the required them. [Sec. 6, Rule 110]
preliminary investigation (PI). Lack of certification
does not invalidate judgment. [People vs. Bulaong Place of commission of offense
(1981)]
 Information is valid when signed by prosecutor General rule: It is sufficient if it can be understood
who has authority to conduct PI of the offense that the offense (or some of its essential
committed within his jurisdiction. Lack of ingredients) was committed within jurisdiction of
authority of the officer signing the information is the court.
an infirmity in the information, and cannot be
cured by silence, acquiescence, or even by express Exception: If the particular place where it was
consent. [Cudia v CA (1998)] committed:
 Information refers to public crimes.  Constitutes an essential element of the offenses
 The "complaint" referred to in Rule 110 charged; OR
contemplates one filed in court, not with the  Is necessary for its identification. [Sec. 10, Rule
fiscal. In that case, the proceeding must be 110]
started by the aggrieved party himself.
 As a general rule, a criminal action is commenced Time of commission of the offense
by complaint or information, both of which are
filed in court. In case of a complaint, it must be General rule: The precise date is not necessary.
filed by the offended party; with respect to an
information, it is the fiscal who files it. Exception: When the date is a material ingredient of
 But a "complaint" filed with the fiscal prior to a the offense. [Sec. 11, Rule 110]
judicial action may be filed by any competent
person. [Ebarle v. Sucaldito (1987)] The determinative factor in the resolution of the
question involving a variance between allegation and
Form & Substance proof in respect of the date of the crime is the
element of surprise on the part of the accused and
Sufficiency of complaint or information his inability to defend himself properly.
 Need not be exact
A complaint or information is sufficient if it states: - As long as the alleged date is not so remote or
 the name of the accused; far removed from the actual date so as to
 the designation of the offense given by the surprise and prejudice the accused, then the
statute; information is valid.
 the acts or omissions complained of as constituting  When date is so remote: defective
the offense; - The allegation in the information of ―on or
 the name of the offended party; about the year 1992‖ is defective as it
 the approximate date of the commission of the violates Sec. 11, Rule 110 and the accused’s
offense; and right to be informed of the nature and cause
 the place where the offense was committed. [Sec. of the accusation against him, because the
6, Rule 110] phrase not only includes 12 months of the
year 1992 but also years prior and subsequent
Test for sufficiency of the complaint or information to 1992.
is whether the crime is described in intelligible  Remedy in case of defect in averment of time
terms with such particularity as to apprise the - A motion for a bill of particulars under Sec. 6,
accused with reasonable certainty, of the offense Rule 116.
charged. [Lazarte, Jr. vs Sandiganbayan (2009)] - The accused may also file a MTQ on the
ground that allegations are so vague and the
The purpose of the requirement for the time of commission of the offense so remote
information‘s validity and sufficiency is to enable that he is denied due process and the right to
the accused to suitably prepare for his defense, be informed of the accusation against him. But
since he is presumed to have no independent defect in the date is not a ground for MTQ
under Rule 116.
 REMEDIAL LAW REVIEWER

Name of the offended party [Sec. 12, Rule 110] make sure the accused fully understands what he is
being charged with. [Guy vs People (2009)]
18  If an offense against person: Name and surname;
nickname/appellation; fictitious name, if real 7. Cause of the Accusation
name is unknown.
 If an offense against property: A variance between the allegation in the information
- If name is unknown, particularly describe the and proof adduced during trial shall be fatal to the
property to identify the offense; criminal case if it is material and prejudicial to the
- If the name is later known, insert it; accused so much so that it affects his substantial
- If a juridical person, name or known name; rights. [Matrido v People (2009)]
without need to aver that it is juridical.
 Where the name of the injured party is necessary Purpose
as matter of essential description of the crime
 To enable a person of common understanding to
charged, the complaint must invest such person
know what offense is intended to be charged;
with individuality by either naming him or alleging
 To enable the court to pronounce proper
that his name is unknown.
judgment.
 In crimes against property, ownership must be
alleged as matter essential to the proper
description of the offense. [US vs Lahoylahoy
Allegations required to safeguard right to be
(1918)] Designation of the name of the offended informed
party is not absolutely indispensable for as long as  Allegations must be in ordinary or concise
the criminal act charged in the complaint or language, sufficient to enable a person of common
information can be properly identified. [Sayson vs understanding to know what offense is being
People (1988), cited in Ricarze vs CA (2007)] charged.
 A mistake in the name of the accused is not  This must be done both for the offense charged
equivalent to a mistake in the identity especially and the circumstances involved in its commission.
when sufficient evidence is adduced to show that [Sec. 9, Rule 110]
the accused is pointed to as one of the  The prosecutor‘s characterization of the crime is
perpetrators of the crime. [People vs Amodia immaterial and purposeless. The facts stated in
(2009)] the body of the complaint/information determine
the crime of which the accused stands charged
An accused is deemed to have waived his right to and for which he must be tried.
assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and Qualifying and aggravating circumstances must be
participated in the trial. [Frias vs People (2007)] alleged; otherwise, they are not to be considered
even if proven during the trial. [Sec. 8, Rule 110]
Consequently, objections as to form cannot be made
for the first time on appeal. The accused should What to allege
have moved for a bill of particulars or for quashal of  Where the law prescribes exceptions
information before arraignment, otherwise he is General rule: Where the law alleged to have
deemed to have waived his objections to such a been violated prohibits generally acts therein
defect. [People vs Teodoro (2009)] defined and is intended to apply to all persons
indiscriminately, but prescribes certain
limitations/exceptions from its violation, the
6. Designation of Offense indictment/information is sufficient if it alleges
facts which the offender did as constituting a
 Aver the acts and omissions constituting the
violation of law, without explicitly negating the
offense.
exception, as the exception is a matter of defense
 Specify the qualifying and aggravating
which the accused has to prove.
circumstances for them to be considered in the
Exception: Where the statute alleged to have
imposition of the penalty. [Sec. 8 and 9, Rule 110;
been violated applies only to specific classes of
People vs Tampos (2009)] (Bar 2001)
persons and special conditions and the exemptions
from its violation are so incorporated in the
This is a procedural requirement to safeguard the
language defining the crime that the ingredients
right of the accused to be informed of the nature
of the offense cannot be accurately and clearly set
and cause of the accusation against him. Information
forth if the exemption is omitted, then the
is legally viable as long as it distinctly states the
indictment must show that the accused does not
statutory designation of the offense and the acts or
fall within the exemptions.
omissions thereof.
 Where exceptions form as ingredients of offense
In case of a conflict between the designation of the
If the exception is needed for defining the offense,
crime and the recital of ultimate facts constituting
then the information should negate the exception.
the offense, the latter prevails over the former.
[US vs Chan Toco (1908)]
[People vs Quemeggen (2009)]
 Where complex crime is charged
Specific acts of accused do not have to be described
Where what is alleged in the information is a
in detail in the information, as it is enough that the
complex crime and the evidence fails to support the
offense be described with sufficient particularity to
charge as to one of the component offenses, the
 REMEDIAL LAW REVIEWER

defendant can only be convicted of the offense Amendments made after plea and during trial
proven.
 Formal – can only be made under two conditions
8. Duplicity of the Offense; Exception - Leave of court must be secured 19
- It does not cause prejudice to the rights of the
(Bar 2005) accused. [Sec 14, Rule 110] The test as to WON
a defendant is prejudiced by the amendment of
General rule: The information must charge only one
information is –
offense. [Sec. 13, Rule 110]
o WON a defense under the information as it
originally stood would be available after the
Objection to a complaint or information which
amendment is made, and
charges more than one offense must be timely
o WON any evidence defendant might have
interposed before trial. [Sec 3, Rule 120] Failure to
would be equally applicable to the
do so constitutes a waiver, [People v Tabio (2008)]
information in the one form as in the other.
and the court may convict him of as many offenses
[People vs Casey (1981)]
as are charged and proved, and impose on him the
penalty for each offense. [Sec 3, Rule 120]
 Substantial – proscribed. [People vs Zulueta
(1951)]
Exception: When the law prescribes a single
- Substantial matter in a complaint is the recital
punishment for various offenses
of facts constituting the offense charged and
determinative of the jurisdiction of the court.
Purpose: To give the accused the necessary
All other matters are merely of form. [Almeda
knowledge of the charge to enable him to prepare
vs Villaluz (1975)]
his defense. Hence, when an information charges
- Exception: if it is beneficial to the accused.
more than one offense, the accused may file a MTQ
[Ricarze vs CA (2007)]
on the ground of duplicity of offenses.
Substitution – a complaint or information may be
Several modes of committing offense not substituted if it appears at any time before
duplicitous judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the
General rule: In case of crimes susceptible of being original complaint or information upon the filing of a
committed in various modes, the allegations in the new one charging the proper offense, provided the
information of the various ways of committing the accused would not be placed in double jeopardy.
offense would be regarded as a description of only [Sec 14, Rule 110]
one offense and information is not rendered
defective.  Subject to the Sec 19, Rule 119, when it
becomes manifest at any time before judgment
Exceptions: that a mistake has been made in charging the
 Complex crimes proper offense and the accused cannot be
 Special complex crimes convicted of the offense charged or any other
 Continuous crimes offense necessarily included therein, the
 Crimes susceptible of being committed in various accused shall not be discharged if there appears
modes good cause to detain him. The court shall
 Crimes which another offense is an ingredient commit the accused to answer the proper
[People vs Camerino (1960)] offense and dismiss the original case upon the
filing of the proper information.
9. Amendment or Substitution of
complaint or information [Sec. 14, Distinction between substitution and
amendment (Bar 1994)
Rule 110] (Bar 2001, 2002) AMENDMENT SUBSTITUTION
Formal or Substantial Substantial change form
Amendments in form and substance before changes original
plea Can be effected without Must be with leave of
leave of court court
General rule: It must be made before the accused Only as to form, there is Another PI is entailed
enters his plea. no need for another PI and accused has to plead
and retaking of plea anew
Exception: If the amendment downgrades the
Amended information Involves a different
nature of the offense charged in, or excludes any
refers to the same offense which does not
accused from, the complaint/information, it can be
offense charged in the include those provided in
made only upon motion of the prosecutor, with
original information or the original charge;
notice to the offended party and with leave of court.
to an offense which is cannot invoke double
The court is mandated to state its reasons in
included in the original jeopardy
resolving the motion of the prosecutor and to furnish
charge; can invoke
all parties, especially the offended party, of copies
double jeopardy
of its order.
 REMEDIAL LAW REVIEWER

10. Venue of criminal actions 11. Intervention of offended party

20 [Sec. 16, Rule 110]
Place where action is to be instituted
Venue of criminal actions shall be instituted and General rule: An offended party has the right to
tried in the court of the municipality or territory intervene in the prosecution of a crime
 where the offense was committed; or
 where any of its essential ingredients occurred. Note: This is still subject to the control of the
[Sec. 15(a), Rule 110] prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]

How venue or jurisdiction determined Exceptions:

 Venue in criminal cases is jurisdictional, being an  Where, from the nature of the crime and the law
essential element of jurisdiction. defining and punishing it, no civil liability arises in
 One cannot be held to answer for any crime favor of a private offended party.
committed by him except in the jurisdiction where  Where, from the nature of the offense, the private
it was committed or where an essential ingredient offended party is entitled to civil indemnity arising
thereof took place. The place where the accused therefrom but he has waived the same or has
was arrested is of no moment. [People vs expressly reserved his right to institute a separate
Enriquez] civil action or he has already instituted such
action.
Where crime is continuing  Offended party has already instituted action
A person charged with a transitory crime may be - Any move on the part of the complainant or
validly tried in any municipality or province where offended party to dismiss the criminal case,
the offense was in part committed. [People vs even if without objection of the accused, should
Gorospe (1984)] first be referred to the prosecuting fiscal for his
own view on the matter. He controls the
Written defamation prosecution of the case and may have reasons
why the case should not be dismissed. [Republic
 Action to be instituted and filed in the RTC of the vs Sunga (1988)]
province or city where the libelous article is - When private prosecutor is allowed to
printed and first published. intervene: [A.M. No. 02-2-07-SC]
 Additional rules: if offended party is o All criminal actions either commenced by
- a private individual, the action may also be filed complaint or by information shall be
in the province where he actually resides at the prosecuted under the direction and control of
time of the commission of the offense. a public prosecutor.
- a public officer, the action may be filed in the o In case of heavy work schedule of the public
court of the province or city where he held prosecutor or in the event of lack of public
office at the time of the commission of the prosecutors, the private prosecutor may be
offense. [Art. 360, RPC] authorized in writing by the Chief of the
Prosecution Office or the Regional State
Note: If information is filed in the place where the Prosecutor to prosecute the case subject to
defamatory article was printed or first published, it the approval of the court.
must state that the libelous material was either - The private prosecutor shall continue to prosecute
printed or first published in the place of the filing of the case up to the end of the trial even in the
the information, and not merely allege that the absence of a public prosecutor, unless the
paper or magazine is of general/considerable authority is revoked or otherwise withdrawn. [Sec.
circulation. [Riano on Foz, Jr. v People (2009)] 5, Rule 110]

Offense committed on railroad

 Action to be instituted and filed in the court of III. PROSECUTION OF CIVIL
any municipality or territory where said train,
aircraft or vehicle passed thru, including place of ACTION
departure or arrival. [Sec. 15(b), Rule 110]
 Rule applies only when the crime was committed 1. Rule on implied institution of civil
in the COURSE of the trip.
action with criminal action
Offense committed on a vessel
Action may be instituted and tried in the court of How instituted
the first port of entry or any municipality or territory
where the vessel passed during such voyage, subject General rule: When a criminal action is instituted,
to generally accepted principles of international the civil action for the recovery of civil liability
law. [Sec. 15(c), Rule 110] arising from the offense charged is deemed
instituted with the criminal action. [Sec. 1, Rule
Offense committed outside the Philippines 111]
Cognizable by the court where the criminal action is
first filed. [Sec. 15(d), Rule 110] Reason: principle that every person criminally liable
for a felony is also civilly liable. [Art. 100, RPC]
 REMEDIAL LAW REVIEWER

3. When separate civil action is

Exception: If the offended party:
 Waives the civil action; suspended
 Institutes the civil action prior to the criminal 21
action; or  After the criminal action has been commenced, the
 Reserves the right to institute it separately [ABS- separate civil action arising therefrom cannot be
CBN Broadcasting Corporation vs Ombudsman instituted until final judgment has been entered in
(2008)] the criminal action. [Sec 2, Rule 111]
 The civil action, which should be suspended after
Exception to this exception the institution of the criminal action, is that arising
 Claims arising out of a dishonored check under BP from delict or crime.
22 where ―no reservation to file such civil action  Civil actions mentioned in Sec. 3, Rule 111 under
separately shall be allowed.‖ (Bar 2001; 2002) Arts. 32-34 and 2176 of the Civil Code are exempted
 Claims arising from an offense which is cognizable from the rule that after a criminal action has been
by the Sandiganbayan where there is likewise no commenced, the civil action which has been
right to reserve the filing of the civil action reserved cannot be instituted until final judgment
separately from the criminal action. [Sec. 4, PD has been rendered in the criminal action.
1606, as amended by RA 8249]
 An offended party loses his right to intervene in 4. Effect of the death of accused or
the prosecution of a criminal case, not only when convict on civil action [Sec. 4, Rule
he has waived the civil action or expressly
reserved his right to institute it, but also when he 111; ABS-CBN Broadcasting vs
has actually instituted the civil action. For by Ombudsman (2008)]
either of such actions his interest in the criminal
case has disappeared. [Garcia vs Florido (1973)]  If death is before arraignment – Dismissal of case
 Only civil liability arising from the crime charged without prejudice to filing of civil action against
as a felony is deemed instituted with the criminal estate of the deceased.
action. Civil actions referred to in Civil Code 32,  If death is after arraignment and during pendency of
33, 34, and 2176 shall remain ―separate, distinct criminal action – Extinguishes civil liability arising
and independent‖ of any criminal prosecution from the delict.
which may be based on the same act. [Phil. Rabbit
Bus Lines Inc vs People (2004)] Exception: Independent civil actions instituted
 Does not include civil liability that the offended under Arts. 32, 33, 34 and 2176 of the Civil Code, or
party waives, reserves or those instituted prior to those instituted to enforce liability arising from
the criminal action. other sources of obligation may be continued against
the estate or legal representative of the accused
2. When civil action may proceed after proper substitution or against his estate.
independently  If death is while appeal is pending – extinguishes
criminal liability and civil liability based thereon. If
 The reservation of the right to institute separately the civil liability is predicated on a source of
the civil action shall be made before the prosecution obligation other than delict, it survives
starts presenting its evidence and under notwithstanding the death of the accused [People vs
circumstances affording the offended party a Ayochok (2010)]
reasonable opportunity to make such reservation.
 Procedure for making the reservation:
- Filing a manifestation in the criminal case that the 5. Prejudicial Question (1999 Bar)
offended party is reserving his right to file a
separate civil action; Elements of prejudicial question
- Filing the separate civil action and informing the
court trying the criminal case that the offended General Rule: a prejudicial question is that which
party has filed a separate civil action. arises in a case the resolution of which is a logical
 The rule requiring reservation does not apply to Arts. antecedent of the issue involved therein, and the
32-34 and 2176, CC. These civil actions can be filed cognizance of which pertains to another tribunal.
and prosecuted independently of the criminal
action.  The prejudicial question must be determinative of
 No counterclaim, cross-claim or 3rd-party complaint the case before the court but the jurisdiction to try
may be filed by the accused in the criminal case, but and resolve the question must be lodged in another
any cause of action which could have been the court or tribunal.
subject thereof may be litigated in a separate civil  It is a question based on a fact distinct and separate
action. [Sec. 1, Rule 111] from the crime but so intimately connected with it
that it determines the guilt or innocence of the
accused. [Ras vs Rasul (1980)]
 Rationale: to avoid two conflicting decisions in the
civil case and in the criminal case. [Sy Thiong Siou vs
Sy Chim (2009)]
 REMEDIAL LAW REVIEWER

3. Who may conduct determination of

Effect (Bar 1995, 1999, 2010) existence of probable cause
22 4. Resolution of investigating prosecutor
General rule: Where both a civil and a criminal case
arising from the same facts are filed in court, the 5. Review
criminal case takes precedence. 6. When warrant of arrest may issue
7. Cases not requiring a preliminary
Exception: If there exists a prejudicial question investigation
which should be resolved first before an action could 8. Remedies of accused if there was no
be taken in the criminal case. preliminary investigation
9. Inquest
Requisites [Sec. 7, Rule 111]
 Previously initiated civil action involves an issue
similar or intimately related to the issue raised in 1. Nature of right
the subsequent criminal action; and
 The resolution of such issue determines WON the Preliminary investigation, defined
criminal action may proceed.  It is an inquiry or proceeding to determine
whether there is sufficient ground to engender a
Where to file petition [Sec. 6, Rule 111] well-founded belief that a crime has been
 Office of the prosecutor (in the PI stage); committed and the respondent is probably guilty
 Court conducting the PI; or thereof, and should be held for trial. [Sec. 1, Rule
 Court where criminal action has been filed for 112]
trial, at any time before the prosecution rests.  The conduct of a PI is the initial step towards the
criminal prosecution of a person.
Note: The Rule precludes a motu proprio suspension
of the civil action. [Riano] Nature of the Right to PI
 It is a statutory right in those instances where it is
required, and to withhold it would violate the
6. Rule on Filing Fees in civil action constitutional right to due process. [People vs
deemed instituted with the criminal Oandasa (1968)]
action  It is part of the guarantees of freedom and fair
play. [La Chemise Lacoste, S.A. vs Fernandez
Filing fees of civil action deemed instituted in (1984)]
criminal action  The right to have a PI conducted before being
bound over to trial for a criminal offense and
hence formally at risk of incarceration or some
Filing fees apply when damages are being claimed by
other penalty is not a mere formal or technical
the offended party.
right but a substantial right
General Rule: The actual damages claimed or
recovered by the offended party are not included in Right to Preliminary Investigation
the computation of the filing fees. [Sec. 1, Rule 111]  The right to preliminary investigation is a personal
 When the amount of damages, other than actual, right which the accused may waive either
is specified in the complaint or information filed in expressly or by implication.
court, then the corresponding filing fees shall be  When the accused waives his right to preliminary
paid by the offended party upon the filing thereof investigation, the fiscal may forthwith file the
in court for trial; corresponding information with the proper court.
 In any other case—i.e., when the amount of [People vs Perez (1960)]
damages is not so alleged in the complaint or  The right is deemed waived by:
information filed in court, the corresponding filing - the failure to claim it before the accused
fees need not be paid and shall simply constitute a pleaded [People vs Magpale (1940)]
first lien on the judgment, except on an award for - silence of the accused [People vs Mijares
actual damages. [General vs Claravall (1991)] (1951)]
- failure to request it within 5 days from time he
Exceptions: In criminal actions for violation of BP22, learns of the filing of the complaint/information
the amount of the check involved shall be - when accused already posted bond for his
considered as the actual damages for which no release and subsequently went to trial without
separate civil action is allowed. In estafa cases, the claiming his right to PI [People vs Selfaison
filing fees shall be paid based on the amount (1961)]
involved. [A.M. No. 04-2-04] - a fortiori absence of the accused [Sec. 3(d),
Rule 112; de Guzman vs People and
Sandiganbayan (1982)]

IV. PRELIMINARY INVESTIGATION An application for or admission to bail shall not bar
1. Nature of right the accused from assailing the regularity or
questioning the absence of a preliminary
2. Purposes of preliminary investigation
investigation of the charge against him provided that
 REMEDIAL LAW REVIEWER

he raises the challenge before entering his plea [Sec.

26, Rule 114].  Ombudsman
The Ombudsman and his Deputies, as protectors of
2. Purposes of preliminary the people, shall act promptly on complaints filed 23
in any form or manner against public officials or
investigation employees of the Government, or any subdivision,
agency or instrumentality thereof, including
 To determine whether or not a crime has been GOCCs and shall, in appropriate cases, notify the
committed and whether or not there is probable complainants of the action taken and the result
cause to believe that the accused is guilty. [Raro thereof. [Sec. 12, Art. XI, Consti]
vs Sandiganbayan (2000)]
 To protect the accused from the inconvenience, The Ombudsman is authorized to conduct
expense and burden of defending himself in a preliminary investigation and to prosecute all
formal trial criminal cases involving public officers and
 To secure the innocent against hasty, malicious employees, not only those within the jurisdiction
and oppressive prosecution, and to protect him of the Sandiganbayan, but also those within the
from an open and public accusation of a crime, jurisdiction of regular courts as well.
from the trouble, expense, anxiety of a public
trial, and also protect the state from useless and - If the offense comes within the jurisdiction of
expensive trials. [Tandoc vs Resultan (1989)] regular courts, the Ombudsman may endorse the
same to, and deputize the provincial/ city
Scope of PI prosecutor who has jurisdiction over the case
 A PI is ―merely inquisitorial, and it is often the for proper preliminary investigation.
only means of discovering the persons who may - If the offense is cognizable by the
reasonably be charged with a crime, to enable the Sandiganbayan, the preliminary investigation
prosecutor to prepare his complaint or has to be conducted pursuant to Rule 11 of the
information. It is not a trial of the case on the Rules of Procedure of the Office of the
merits‖ and does not place the persons against Ombudsman requiring that the complaint must
whom it is taken in jeopardy. be under oath.
 It ―is not the occasion for the full and exhaustive
display of the parties‘ evidence‖ [Raro vs SB Note: RTC judges have NO power to conduct PI;
(2000)] and MTC judges cannot conduct PI anymore after
 The accused has no right to cross-examine the A.M. No. 05-8-26-SC eliminated judges of the MTC
witnesses which the complainant may present. and MCTC from those authorized to conduct a PI
[Paderanga vs Drilon, 1991] effective October 3, 2005.
 A PI takes on an adversarial quality, because its
purpose is 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 before an accused person is placed
on trial. [Raro vs SB (2000)]

3. Who may conduct determination of

existence of probable cause
 Generally [Rule 112, Sec. 2 as amended by A.M.
No. 05-8-26-SC]
- Provincial/city prosecutors and their assistants;
- National and regional state prosecutors;
- Other officers as may be authorized by law.

 COMELEC, when vested

COMELEC may conduct investigation as regards
election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec.
265, Omnibus Election Code]

The COMELEC exercises the constitutional authority

to investigate and, where appropriate, prosecute
cases for violation of election laws, including acts or
omissions constituting election frauds, offenses and
malpractices. Such involves the exercise of
administrative powers, thus the COMELEC en banc,
may in the first instance, may act on the
investigation and subsequently decide on the filing
of the criminal action. [Baytan vs COMELEC (2003)]
 REMEDIAL LAW REVIEWER

 If the investigating officer finds no probable

Procedure for preliminary investigation cause, he will dismiss the case. Otherwise, he will
24 prepare an information and resolution.
Filing of the complaint [Sec. 3(a), Rule 112]  He shall certify under oath in the information
 Stating the respondent‘s address that:
 Include the affidavits of complainant and the - He is an authorized officer;
witnesses, and other documents to establish - He personally examined the complainant and
probable cause, which must be subscribed and witnesses;
sworn to before a prosecutor or government - There is reasonable ground to believe that a
official authorized to administer oath or crime has been committed and that the accused
notary public is probably guilty thereof;
 In such number of copies as there are - The accused was informed of the complaint and
respondents, plus 2 copies for the official file of the evidence submitted against him; and
- The accused was given an opportunity to submit
controverting evidence.

Action of the investigating officer [Sec. 3(b), 5. Review [Sec. 4, Rule 112]
Rule 112]
Within 10 days after the filing of the complaint, Within 5 days from resolution, the investigating
the investigating officer will either: officer will forward the case to the prosecutor or the
 Dismiss, if he finds no ground to continue; or Ombudsman in cases cognizable by the
 Issue a subpoena to the respondent, attaching Sandiganbayan in the exercise of its original
the complaint and other documents. If jurisdiction.
subpoena is not possible, the investigating 
officer shall decide based on what complainant Within 10 days from receipt of the resolution, the
presented. prosecutor/Ombudsman will act on the case.
Respondent has the right to examine the evidence 
submitted by complainant, and copy evidence at No complaint/information may be filed or dismissed
his expense. by an investigating prosecutor without the prior
written authority or approval of the prosecutor or
Ombudsman.

Defendant’s counter-affidavit In case the investigation officer recommends the

Must be made within 10 days from receipt of dismissal of the complaint but the
complaint, and must comply with the same prosecutor/Ombudsman disagrees, the latter may
requirements as a complaint. [Sec. 3(c), Rule 112] file the information himself or any deputy or order
any prosecutor to do so without conducting a new PI.
If not made within 10 days, the investigating officer Note: The DOJ Secretary may file the information
shall resolve the complaint based on the evidence without conducting another PI or dismiss the
presented by the complainant [Sec. 3(d), Rule 112] information filed by the prosecutor.

6. When warrant of arrest may issue

Hearing [Sec. 3(e), Rule 112] If the judge finds probable cause, he shall issue a
The investigator must conduct a hearing within warrant of arrest, or a commitment order if the
10 days from receipt of the counter-affidavit. accused has already been arrested, and hold him for
The hearing must be finished in 5 days. trial.

Hearing is conducted only if there are such facts Judges of RTC and inferior courts need not
and issues to be clarified from a party or a personally examine the complainant and his
witness. witnesses in the determination of PC. But he must
personally evaluate the prosecutor‘s report and
Parties may be present evidence, but they have other sufficient supporting evidence, and on the
no right to examine or cross-examine. Questions basis thereof either dismiss the case, issue a
of parties shall be submitted to the investigating warrant, or require further affidavits.
officer.
Warrant that is simply based on report and
Within 10 day after the investigation, the officer recommendation of prosecution invalid; the judge
shall determine WON there is sufficient ground must make an independent judgment of whether or
to hold respondent for trial. not there is probable cause. This is because the
probable cause for the prosecutor and judge are
different:
4. Resolution of investigating  PC for PROSECUTOR: whether or not there is
reasonable ground to believe that the accused is
prosecutor [Sec. 4, Rule 112] guilty of the offense charged and should be held
for trial for which information is to be filed.
 REMEDIAL LAW REVIEWER

 PC for JUDGE: whether or not a warrant of arrest While PI is a statutory and substantive right and a
should be issued so that the accused may be held component part of due process, the absence of PI:
in custody in order not to frustrate the ends of  does not impair the validity of the information or
justice. otherwise render it defective 25
 neither does it affect the jurisdiction of the court
Judge may dismiss the case if the evidence on record  nor constitute a ground for quashing the
clearly fails to establish a probable cause information.

Judge may order the prosecutor to present evidence The trial court, instead of dismissing the
within 5 days from notice and the issue may be information, should hold in abeyance the
resolved by the court within 30 days from filing of proceedings and order the public prosecutor to
complaint/information. conduct a PI. [Villaflor vs Vivar (2001)]

7. Cases not requiring a preliminary If Preliminary investigation is being

investigation conducted

Injunction and writs of restraint

Cases not requiring a preliminary investigation Nor
Covered by Rule on Summary Procedure [Sec. 8,
General rule: The power of the Fiscal to investigate
Rule 112]
crimes committed within his jurisdiction will,
 Cases punishable by imprisonment of less than 4
ordinarily, not be restrained, as such will unduly
years, 2 months and 1 day, filed with the
setback the administration of criminal justice.
prosecutor or MTC/MCTC
Exception: Extreme cases may exist where relief in
Follow the procedure outlined in Sec. 3(a), Rule 112 equity may be availed of to stop a purported
above. enforcement of a criminal law where it is necessary
(a) for the orderly administration of justice; (b) to
prevent the use of the strong arm of the law in an
Within 10 days after the filing of the oppressive and vindictive manner; (c) to avoid
complaint/information, if the judge finds no PC multiplicity of actions; (d) to afford adequate
after personally evaluating the evidence or after protection to constitutional rights; and (e) in proper
personally examining in writing and under oath the cases, because the statute relied upon is
complainant and his witnesses in the form of unconstitutional, or was "held invalid." [Hernandez
searching questions and answers, he shall dismiss vs Albano (1967)]
the same.
9. Inquest
The judge may require submission of additional General rule: PI is required to be conducted before
evidence within 10 days from notice, to determine a complaint/ information is filed for an offense
where the penalty prescribed by law is at least 4
the existence of PC.
years, 2 months and 1 day, without regard to the
fine. [Sec. 1, Rule 112]
If the judge still finds If the judge finds PC, he
Exception: When a person is lawfully arrested
no PC despite the shall issue a warrant of
without a warrant involving an offense that requires
additional evidence, he arrest or a commitment
a PI, a complaint/information may be filed without
order (if the accused
shall dismiss the case conducting the PI if the necessary inquest is
had already been
within 10 days from its conducted.
arrested) and hold him
submission or expiration for trial.
INQUEST – An informal and summary investigation
of said period.
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for
If the judge is satisfied the purpose of determining whether or not said
that there is no need to persons should remain under custody and
place the accused under correspondingly be charged in court. (DOJ-NPS
custody, he may issue Manual)
summons instead.
 In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the
8. Remedies of accused if there was offended party or by a peace officer directly with
the proper court on the basis of the affidavit of
no preliminary investigation the offended party or arresting officer or person.
 However, before the complaint or information is
Effect of denial of right to PI filed, the person arrested may ask for a PI, but he
must sign a waiver of the provisions of Art. 125,
 REMEDIAL LAW REVIEWER

RPC in the presence of his counsel.

Notwithstanding the waiver, he may apply for bail
26 and the investigation must be terminated within
If the recommendation of the Inquest Officer for the
15 days from its inception.
release of the arrested or detained person is
 After the filing of the complaint/ information in
approved, the order of release shall be served on
court without a PI, the accused may within 5 days
the officer having custody of the said detainee.
from the time he learns of its filing, ask for a PI
with the same right to adduce evidence in his
Should it be disapproved, the arrested or detained
defense as provided in Rule 112. [Sec. 6, Rule 112]
person shall remain under custody, and the
corresponding complaint/information shall be filed
Procedure for inquest proceedings by the City or Provincial Prosecutor or by any
Assistant Prosecutor to whom the case may be
Considered commenced upon receipt by the
assigned.
Inquest Officer from the law enforcement
authorities of the complaint/referral documents
which should include:
 affidavit of arrest, investigation report,
V. ARREST
statement of the complainant and witnesses, all 1. Arrest, how made
of which must be subscribed and sworn to before 2. Arrest without warrant, when lawful
him 3. Method of arrest
 other supporting evidence gathered by the a. By officer with warrant
police in the course of the latter's investigation
b. By officer without warrant
of the criminal incident involving the arrested or
detained person.
c. By private person
4. Requisites of a valid warrant of arrest
It must be terminated within the period prescribed 5. Determination of probable cause for
under the provisions of Article 125 of the RPC, as issuance of warrant of arrest
amended. 6. Distinguish probable cause of fiscal from
that of a judge

ARREST: Taking of a person into custody in order

When the documents presented are not complete to that he may be bound to answer for the commission
establish probable cause, the Inquest Officer shall of an offense. (Rule 113, Sec. 1)
direct the law enforcement agency to submit the
required evidence within the period prescribed under Ordinarily, an invitation to attend a hearing and
the provisions of Art. 125, RPC, as amended. answer some questions, which the person invited
Otherwise, the Inquest Officer shall order the release may heed or refuse at his pleasure, is not illegal or
of the detained person. constitutionally objectionable.

However, where the invitation comes from a

powerful group composed predominantly of ranking
If the Inquest Officer If the Inquest Officer military officers issued at a time when the country
finds that probable finds no PC, he shall has just emerged from martial rule and when the
cause exists, he shall recommend the release suspension of the privilege of the writ of habeas
forthwith prepare the of the arrested or corpus has not entirely been lifted, and the
corresponding detained person, note designated interrogation site is a military camp, the
complaint/information down his disposition on same can be easily taken, not as a strictly voluntary
with the the referral document, invitation which it purports to be, but as an
recommendation that prepare a brief authoritative command which one can only defy at
the same be filed in memorandum his peril. Although in the guise of a request, it was
court. The indicating the reasons obviously a command or an order of arrest that a
complaint/information for the action taken, person could hardly be expected to defy. [Sanchez v.
shall indicate the and forthwith forward Demetriou (1993)]
offense committed and the record of the case
the amount of bail to the City or Provincial  Immunity from arrest
recommended, if Prosecutor for - Parliamentary Immunity: Senators and
bailable. appropriate action. Members of the House of Representatives,
while Congress is in session and for offenses
punishable by not more than 6 years
imprisonment. (Art. VI, Sec. 11, 1987
Const.)
- Diplomatic Immunity: Ambassadors and
ministers of foreign countries and their duly
registered domestics subject to the
principle of reciprocity (RA 75)
 REMEDIAL LAW REVIEWER

 DOJ Circular No. 50 (October 29, 1990): warrant except in those cases expressly authorized
Prohibits the issuance of general warrants in a by law. [Umil v. Ramos (1991)]
―John Doe‖ information
- Insofar as the warrant is issued against 50 Exceptions (Rule 113, Sec. 5) 27
"John Does" not one of whom the witnesses
to the complaint could or would identify, it  In flagrante delicto: Literally, caught in the act
is of the nature of a general warrant, one of of committing a crime. When the person to be
a class of writs long proscribed as arrested has committed, is actually committing
unconstitutional and once anathematized as or is attempting to commit an offense in the
"totally subversive of the liberty of the presence of the peace officer or private person
subject." [Pangandaman v. Casar (1988)] who arrested him. (Rule 113, Sec. 5(a))
- Requisites:
1. Arrest, how made o The person to be arrested must execute
an overt act indicating that he has just
Constitutional requirements on arrest committed, is actually committing, or is
attempting to commit a crime; and
The right of the people to be secure in their persons,
o Such overt act is done in the presence or
houses, papers, and effects against unreasonable
within the view of the arresting officer.
searches and seizures of whatever nature and for
- ―In his presence‖ means: [People v. Evaristo
any purpose shall be inviolable, and no search
(1992)]
warrant or warrant of arrest shall issue except upon
o He sees the offense, even though at a
probable cause to be determined personally by the
distance;
judge after examination under oath or affirmation of
o He hears the disturbances created by the
the complainant and the witnesses he may produce,
offense and proceeds at once to the
and particularly describing the place to be searched
scene; or
and the persons or things to be seized. (Art. III, Sec.
o Offense is continuing or has been
2, 1987 Const.)
consummated at the time arrest is made.
- Entrapment
Modes of effecting arrest o An arrest made after an entrapment does
 By an actual restraint of a person to be
not require a warrant inasmuch as it is
arrested.
considered a valid warrantless arrest
 By his submission to the custody of the person
pursuant to Rule 113, Sec. 5(a) of the
making the arrest. (Rule 113, Sec. 2, Par. 1)
Rules of Court. [Teodicio v. CA (2004)]
- Buy-bust operation
Whichever means is used to make an arrest, the
o When the appellant is caught in flagrante
term necessarily implies control over the person
as a result of the buy-bust operation, the
under custody and, as a consequence, a restraint on
policemen are not only authorized but
his liberty to the extent that he is not free to leave
are also under obligation to apprehend
on his own volition. (Riano, 2011)
the drug pusher even without a warrant
of arrest. [People v. de Lara (1994)]
It is enough that there be an intent on the part of
one of the parties to arrest the other and an intent
 Hot pursuit arrest: When an offense has just
on the part of the other to submit, under the belief
been committed and the officer or private
and impression that submission is necessary.
person has probable cause to believe, based on
[Sanchez v. Demetriou (1993)]
personal knowledge of facts or circumstances,
that the person to be arrested has committed it
No unnecessary violence (Rule 113, Sec. 5(b))
No violence or unnecessary force shall be used in - Requisites
making an arrest. The person arrested shall not be o An offense has just been committed –
subject to a greater restraint than is necessary for implies immediacy in point of time; and
his detention. (Rule 113, Sec. 2, Par. 2) o The person making the arrest has
probable cause to believe, based on
 Application of actual force, manual touching of personal knowledge of facts, that the
the body, physical restraint or a formal person to be arrested has committed it.
declaration of arrest is not required.
 Personal knowledge must be based on
Time to make arrest ―probable cause‖ which means an
An arrest may be made on any day and at any time actual belief or reasonable grounds of
of the day or night. (Rule 113, Sec. 6) suspicion.
 The grounds of suspicion are reasonable
2. Arrest without warrant, when when, in the absence of actual belief
lawful (1997, 2000, 2003, 2004 Bar) of the arresting officer, the suspicion
that the person to be arrested is
General rule: No peace officer or person has the probably guilty of committing the
power or authority to arrest anyone without a offense is based on actual facts, i.e.,
supported by circumstances sufficiently
strong in themselves to create the
 REMEDIAL LAW REVIEWER

probable cause of guilt of the person to o When the giving of such information will
be arrested. imperil the arrest
28  A reasonable suspicion therefore must - The officer need not have the warrant in his
be founded on probable cause, coupled possession at the time of the arrest but
with good faith on the part of the after the arrest, if the person arrested so
peace officers making the arrest. requires, the warrant shall be shown to him
[Posadas v. Ombudsman (2000)] as soon as practicable. (Rule 113, Sec. 7)
o This is not a case of a warrantless arrest
NOTE: Where a warrantless arrest is made under the but merely an instance of an arrest
in flagrante and hot pursuit exceptions, the person effected by the police authorities without
arrested without a warrant shall forthwith arrested having the warrant in their possession at
delivered to the nearest police station or jail. (Rule that precise moment. [Mallari v. CA
113, Sec. 5, last par.) (1996)]
 To arrest the accused and deliver him to the
 Arrest of escaped prisoner nearest police station or jail without
- When the person to be arrested is a unnecessary delay. (Rule 113, Sec. 3)
prisoner who has escaped: (Rule 113, Sec.
5(c)) Rights of the arresting officer
o From a penal establishment or place  To summon assistance. (Rule 113, Sec. 10)
where he is serving final judgment or - He may orally summon as many persons as
temporarily confined while his case is he deems necessary to assist him in
pending; or effecting the arrest.
o While being transferred from one - A person summoned shall assist in effecting
confinement to another. the arrest when he can do so without
- Escapee may be immediately pursued or re- detriment to himself.
arrested without a warrant at any time and
in any place within the Philippines. (Rule  To break into building or enclosure. (Rule 113,
113, Sec. 13) Sec. 11)
- Rationale: At the time of arrest, the - The person to be arrested is or is reasonably
escapee is in continuous commission of a believed to be in said building;
crime (i.e. evasion of service of sentence). - He has announced his authority and purpose
of entering therein; and
Other lawful warrantless arrest - He has requested and been denied
 Where a person who has been lawfully arrested admittance.
escapes or is rescued. (Rule 113, Sec. 13), but
the pursuit must be immediate. Also applicable where there is a valid arrest
 By the bondsman, for the purpose of without a warrant.
surrendering the accused. (Rule 114, Sec. 23)
 Where the accused attempts to leave the Rationale: Person to be arrested cannot use his
country without permission of the court where house/ building/enclosure as a shelter for
the case is pending. (Rule 114, Sec. 23) crime. The inviolability of domicile cannot be
used to shield arrest.
3. Method of arrest
 To break out from the building/enclosure when
necessary to liberate himself. (Rule 113, Sec.
a. By officer with warrant 12)

Duties of the arresting officer Also applicable where there is a valid arrest
 Execution of warrant (Rule 113, Sec. 4) without a warrant.
- The head of the office to whom the warrant
of arrest was delivered shall cause the  To search the person arrested for dangerous
warrant to be executed within 10 days from weapons or anything which may have been used
its receipt. or constitute proof in the commission of an
- The officer to whom it was assigned for offense. (Rule 126, Sec. 13)
execution shall make a report to the judge
who issued the warrant within 10 days after Without need of a search warrant if it is
expiration of the period to execute. incidental to a lawful arrest.
- In case of his failure to execute, he shall
state the reasons therefor. b. By officer without warrant
 The officer shall inform the person to be
arrested of (1) the cause of the arrest and (2)
the fact that a warrant has been issued for his Duties of arresting officer without warrant
arrest. (Rule 113, Sec. 7)  The officer shall inform the person to be
- Exceptions: arrested of (1) his authority and (2) the cause of
o When he flees the arrest. (Rule 113, Sec. 8)
o When he forcibly resists before the  Exceptions:
officer has opportunity to so inform him - When the person to be arrested is engaged
in the commission of the offense
 REMEDIAL LAW REVIEWER

- When he is pursued immediately after its complainant and his witnesses by

commission searching questions and answers.
- When he has escaped, flees or forcibly o He must be satisfied that PC exists;
resists before the officer has the o There is a need to place the respondent 29
opportunity to so inform him; or under immediate custody in order not to
- When the giving of such information will frustrate the ends of justice. [Samulde v.
imperil the arrest. Salvani (1988)]
 A warrant of arrest has no expiry date. It is only
c. By private person (citizen’s arrest) subject to the requirements found in Rule 113,
Sec. 4.
Duties of private person effecting an arrest
 The private person shall inform the person to be 5. Determination of Probable Cause
arrested of (1) the intention to arrest him and for issuance of warrant of arrest
(2) the cause of the arrest. (Rule 113, Sec. 9)

Exceptions: Same as those for arrest by an

Probable cause test
Probable cause, in connection with the issuance of a
officer without a warrant.
warrant of arrest, assumes the existence of facts and
circumstances that would lead a reasonably discreet
 The private person must deliver the arrested
and prudent man to believe that a crime has been
person to the nearest police station or jail, and
committed and that it was likely committed by the
he shall be proceeded against in accordance
person sought to be arrested. [People v. Tan (2009)]
with Rule 112, Sec. 7. Otherwise, the private
person may be held liable for illegal detention.
Probable cause demands more than suspicion but it
requires less than evidence that would justify
4. Requisites of a valid warrant of conviction. [People v. Gabo (2010)]
arrest
6. Distinguish probable cause of fiscal
Issuance from that of a judge
 Essential Requisites of a Valid Arrest Warrant
(Art. III, Sec. 2, 1987 Const.)
FISCAL JUDGE
- It must be issued upon probable cause
Executive determination Judicial determination of
which must be determined personally by a
of PC PC
judge after examination under oath or
affirmation of the complainant and the Determination of PC to Determination of PC to
witnesses he may produce. hold a person for trial issue a warrant of arrest
- The warrant must particularly describe the W/N there is reasonable W/N a warrant of arrest
person to be arrested. ground to believe that should be issued
the accused is guilty of
the offense charged and
Instances When Judge Issues Warrant of
should be held for trial
Arrest
 Upon the filing of the information by the public
Rule: The law requires personal determination on
prosecutor and after personal evaluation by the
the part of the judge. The judge may rely on the
judge of the prosecutor’s resolution and
report of the investigating prosecutor provided he
supporting evidence. (Rule 112, Sec. 5(a))
also evaluates the documentary evidence in support
- The judge does not have to personally
thereof. Hence, the fiscal‘s finding of probable
examine the complainant and his witnesses.
cause is not conclusive upon the judge as to his
The prosecutor can perform the same
determination of whether or not there is indeed
functions. [Soliven v. Makasiar (1988)]
probable cause. [AAA v. Carbonell (2007)]
- Bare certification by the fiscal is not
enough. It should be supported by a report
The judge is never allowed to follow blindly the
and necessary documents. [Lim v. Felix
prosecutor‘s bare certification as to the existence of
(1991)]
probable cause. [Borlongan v. Peña (2010)]
- Examples of Evidence To Be Examined:
Complaint, affidavits and counter-
RA 7438 AN ACT DEFINING CERTAIN RIGHTS OF
affidavits.
PERSON ARRESTED, DETAINED OR UNDER
 Upon application of a peace officer and after
CUSTODIAL INVESTIGATION AS WELL AS THE
personal examination by the judge of the
DUTIES OF THE ARRESTING, DETAINING AND
applicant and the witnesses he may produce.
INVESTIGATING OFFICERS, AND PROVIDING
- Rationale: There is yet no evidence on
PENALTIES FOR VIOLATIONS THEREOF
record upon which judge may determine
the existence of PC.
Policy
- Conditions:
 To value the dignity of every human being.
o The investigating judge must have
 To guarantee full respect for human rights.
examined in writing and under oath the
 REMEDIAL LAW REVIEWER

Custodial Investigation shall include the practice of (P6,000) or a penalty of imprisonment of not less
issuing an ―invitation‖ to a person who is than eight (8) years but not more than ten (10)
30 investigated in connection with an offense he is years, or both. The penalty of perpetual absolute
suspected to have committed, without prejudice to disqualification shall also be imposed upon the
the liability of the ―inviting‖ officer for any violation investigating officer who has been previously
of law. convicted of a similar offense.
 The same penalties shall be imposed upon a
Rights of Persons Arrested, Detained or Under public officer or employee, or anyone acting
Custodial Investigation; Duties of Public Officers upon orders of such investigating officer or in
 The right to be assisted by counsel at all times. his place, who fails to provide a competent and
- The counsel must be one who is independent counsel to a person arrested,
independent and competent. He shall be detained or under custodial investigation for the
allowed to confer at all times with the commission of an offense if the latter cannot
person arrested, detained or under afford the services of his own counsel.
custodial investigation. If such person
cannot afford the services of his own Any person who obstructs, prevents or prohibits any
counsel, he must be provided by the lawyer, any member of the immediate family of a
investigating officer with a competent and person arrested, detained or under custodial
independent counsel. investigation, or any medical doctor or priest or
- In the absence of a lawyer, no custodial religious minister chosen by him or by any member
investigation shall be conducted and the of his immediate family or by his counsel, from
suspected person can only be detained by visiting and conferring privately with him, or from
the investigating officer in accordance with examining and treating him, or from ministering to
Art. 125, RPC. his spiritual needs, at any hour of the day or, in
 The right to remain silent. urgent cases, of the night shall suffer the penalty of
 The right to be informed of the above rights. imprisonment of not less than four (4) years nor
 The right to be visited by the members of his more than six (6) years, and a fine of four thousand
immediate family, by his counsel, or by any non- pesos (P4,000).
governmental organization, national or
international. NOTE: Any security officer with custodial
responsibility over any detainee or prisoner may
The custodial investigation report shall be reduced undertake such reasonable measures as may be
to writing by the investigating officer, provided that necessary to secure his safety and prevent his
before such report is signed, or thumbmarked if the escape.
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
VI. BAIL
language or dialect known to such arrested or 1. Nature
detained person, otherwise, such investigation 2. When a matter of right; exceptions
report shall be null and void and of no effect 3. When a matter of discretion
whatsoever. 4. Hearing of application for bail in capital
offenses
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation 5. Guidelines in fixing amount of bail
shall be in writing and signed by such person in the 6. Bail when not required
presence of his counsel or in the latter's absence, 7. Increase or Reduction of Bail
upon a valid waiver, and in the presence of any of 8. Forfeiture and Cancellation of bail
the parents, elder brothers and sisters, his spouse, 9. Application not a bar to objections in
the municipal mayor, the municipal judge, district illegal arrest, lack of or irregular
school supervisor, or priest or minister of the gospel preliminary investigation
as chosen by him; otherwise, such extrajudicial 10. Hold Departure Order & Bureau of
confession shall be inadmissible as evidence in any
Immigration Watchlist
proceeding.

Any waiver of the provisions of RPC 135 shall be in 1. Nature

writing and signed by the person arrested, detained,
or under custodial investigation in the presence of Definition
his counsel, otherwise the waiver shall be null and Bail is the security given for the release of a person
void and no effect. in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any
Penalty court as required under conditions hereinafter
Any arresting public officer or employee, or any specified. [Rule 114, Sec. 1]
investigating officer, who fails to inform any person
arrested, detained or under custodial investigation Note: The bondsman or surety guarantees the
of his right to remain silent and to have competent appearance of the person seeking bail.
and independent counsel preferably of his own
choice, shall suffer a fine of six thousand pesos
 REMEDIAL LAW REVIEWER

Purpose 2. Voluntary submission to the Court‘s jurisdiction

1. To relieve an accused from imprisonment until [Santiago vs Vasquez (1993)].
his conviction and yet secure his appearance at
the trial. [ People vs. The Hon. Donato (2011)] b. When bail not available 31
2. To honor the presumption of innocence until his 1. When evidence of guilt is strong in capital
guilt is proven beyond reasonable doubt [Art. III, offenses or those punishable by reclusion
Sec. 14, Const] and perpetua or life imprisonment.
3. To enable him to prepare his defense without
being subject to punishment prior to conviction Exception: When the accused is a minor, he is
[Cortes v. Judge Catral (1997)]. entitled to bail regardless of whether the
evidence of guilt is strong.
Note:
The purpose of bail only accrues when a person is Capital Offense: An offense which under the
arrested or deprived of his liberty. It is incongruous law existing at the time of commission and of
to grant bail to one who is free. Hence, only those the application for admission to bail is
who have either been arrested, detained or punishable by death [Rule 114, Sec. 6].
otherwise deprived of their liberty can invoke his  The capital nature of the offense is
right under the Constitution. From the moment he is determined by the penalty prescribed by
placed under arrest, detention or restraint by law and not the one actually imposed.
officers of the law, he can claim this constitutional  Note R.A.. 9346 entitled ”An Act
right [Feliciano vs Pasicolan (1965)]. Prohibiting the Imposition of Death Penalty
in the Philippines” enacted on June 24,
It shall not constitute as a waiver of his right to 2006 repealing R.A. No. 8177 and R. A. No.
challenge the legality of his arrest or the absence of 7659 and abolishing the death penalty.
PI [Rule 114, Sec. 26].  RA 9346 now defines capital offenses as:
Section 7. Capital offense or an offense
Upon assumption of the obligation of bail, the punishable by reclusion perpetua or life
sureties become in law the jailers of their principal. imprisonment or life imprisonment

Prosecution witnesses may also be required to post 2. Bail in extradition proceedings

bail to ensure their appearance at the trial of the The right to bail is available only in criminal
case where: proceedings. It does not apply to extradition
1. There is substitution of information [Rule 110, proceedings because extradition courts do not
Sec. 4]. render judgments of conviction or acquittal.
2. To compel the appearance of a material witness However, bail may be applied for and granted as
who may not appear at the trial [Rule 119, Sec. an exception, only upon a clear and convincing
14]. evidence that once granted, the applicant will
not be flight risk or will not pose danger to the
2. When a matter of right; exceptions community, and that there exists special
humanitarian and compelling circumstances
a. Bail as a Matter of Right [Gov of USA vs Purganan & Jimenez (2002)].

Note: If the penalty imposed by the trial court is

When bail is a matter of right [Rule114, Sec. imprisonment exceeding 6 years, the accused
4] shall be denied bail or his bail shall be cancelled
a. Before or after conviction by the MTC. upon showing by the prosecution, with notice to
b. Before conviction by RTC of all offenses the accused, of any of the following:
punishable by penalty lower than reclusion 1. Recidivism, quasi-recidivism, or habitual
perpetua. delinquency or commission of a crime
aggravated by reiteration of the accused.
Note: 2. The accused previously escaped from legal
The person seeking his provisional release under the confinement, evaded sentence or violated
auspices of bail need not wait for a formal complaint bail conditions without valid justification.
or information to be filed as it is available to all 3. Commission of offense while under
persons where the offense is bailable. [Paderanga vs probation, parole or conditional pardon by
Court of Appeals (1995)]. the accused.
4. Probability of flight.
However, the person should seeking relief should be 5. Undue risk that the accused may commit
under custody of the law. The Court should not even another crime during pendency of appeal.
allow a motion for bail to be set for hearing, unless
it has acquired jurisdiction over the person of the
accused and the case by its filing in court [Guillermo c. Right to bail is not available to
vs Judge Reyes (1995)]. military personnel accused
under general courts martial
How is custody acquired?
1. By arrest whether with or without a warrant.
[Comendador v. de Villa (1991)].
 REMEDIAL LAW REVIEWER

d. After a judgment of conviction conviction is reversed by the appellate court.

[Section 13, Article III, Const.]
has become final
32 If he applied for probation before finality, Prosecution has burden of proof
he may be allowed temporary liberty under
At the hearing of an application for bail filed by a
his bail [Rule 114, Sec. 24].
person in custody for the commission of an offense
punishable by reclusion perpetua or life
e. After the accused has imprisonment, the prosecution has the burden of
commenced to serve his showing that evidence of guilt is strong.
sentence [Rule 114, Sec. 24] EVIDENCE OF GUILT in the Constitution and the
Rules refers to a finding of innocence or culpability,
3. When a matter of discretion [Rule regardless of the modifying circumstances.
114, Sec. 5]
Regarding Minors Charged with a Capital
1. Before conviction, in offenses punishable by Offense
death, reclusion perpetua or life imprisonment. If the person charged with a capital offense is
2. Upon conviction by the RTC of an offense not admittedly a minor, which would entitle him, if
punishable by death, reclusion perpetua or life convicted, to a penalty next lower than that
imprisonment. prescribed by law, he is entitled to bail regardless of
 It may be filed in and acted upon by the whether the evidence of guilt is strong. The reason
RTC despite the filing of notice of appeal, for this is that one who faces a probable death
provided that it has not transmitted the sentence has a particularly strong temptation to
original record to the appellate court. flee.
 If the RTC decision changed nature of the
offense from non-bailable to bailable, the This reason does not hold where the accused has
application for bail can be resolved only by been established without objection to be minor who
the appellate court. by law cannot be sentenced to death.

Note: Duty of judge to conduct hearing

In hearing the petition for bail, the prosecution has Where the prosecution agrees with the accused‘s
the burden of showing that the evidence of guilt is application for bail or foregoes the introduction of
strong [Rule 114, Sec. 8]. The prosecution must be evidence, the court must nonetheless set the
given ample opportunity to show that the evidence application for hearing. It is mandatory for the judge
of guilt is indeed strong. While the proceeding is to conduct a hearing and ask searching and
conduced as a regular trial, it must be limited to the clarificatory questions for the purpose of
determination of the bailability of the accused. It determining the existence of strong evidence against
should be brief and speedy, lest its purpose be the accused; and the order, after such hearing,
rendered nugatory [People vs Singh (2001)]. should make a finding that the evidence against the
 If bail is granted, provisional liberty continues accused is strong [Gacal v. Judge Infante (2011)].
under the same bail subject to the consent of
the bondsman [Rule 114, Sec. 5]. 5. Guidelines in fixing amount of bail
 If bail is denied by the RTC, the accused-
appellant may challenge it by filing an [Rule 114, Sec. 9]
application (and not a special civil action or a
special proceeding) in the appellate court after The judge who shall issue the warrant or grant the
it has acquired jurisdiction over the case. It application shall fix a reasonable amount of bail
shall be treated as an incident in the appeal. considering primarily, but not limited to, the
following factors:
In deportation proceedings, bail is discretionary 1. Financial ability of the accused
upon the Commissioner of Immigration and 2. Nature and circumstances of the offense
Deportation. [Harvey v. Defensor-Santiago (1990)]. 3. Penalty for the offense charged
4. Character and reputation of the accused
5. Age and health of the accused
4. Hearing of application for bail in 6. Probability of the accused appearing at the trial
capital offenses 7. Forfeiture of other bail
8. Fact that accused was a fugitive from justice
NOTE: RA 9346, Section 7. Capital offense or an when arrested
offense punishable by reclusion perpetua or life 9. Forfeiture of other bail
imprisonment or life imprisonment 10. Pendency of other cases where the accused is on
bail.
Conviction
This refers to conviction by the trial court, which has Note: DOJ Department Circular No. 89 (2000 Bail
not become final, as the accused still has the right Bond Guide) provides standards and criteria for
to appeal. After conviction by the trial court, the prosecutor‘s recommendation of amount of bail to
accused convicted of a capital offense is no longer be granted, if possible, and the rules for the
entitled to bail, and can only be released when the computation of bail.
 REMEDIAL LAW REVIEWER

upon a) surrender of the accused OR b) proof of

6. Bail when not required [Sec. 16, his death.
2. Upon acquittal of the accused
Rule 114] 3. Upon dismissal of the case 33
 When a person has been in custody for a period 4. Upon execution of judgment of conviction.
equal to or more than the possible maximum
imprisonment of the offense charged to which
he may be sentenced, he shall be released 9. Application not a bar to objections
immediately, without prejudice to the in illegal arrest, lack of or irregular
continuation of the trial thereof or the preliminary investigation
proceedings on appeal.
 If the maximum penalty is destierro, he shall be Bail is no longer a waiver of these objections [Rule
released after 30 days of preventive 114, Sec. 26; Leviste v. Alameda (2011)].
imprisonment.
Provided that the proper objections are timely
Note: No bail shall be required in prosecution of raised (i.e., before accused enters a plea), an
offenses covered by the Rule on Summary Procedure, application or an admission to bail shall NOT bar the
EXCEPT: accused from challenging or questioning the:
1. When a warrant of arrest was issued for failure 1. Validity of his arrest.
of the accused to appear when so required 2. Legality of the arrest warrant.
2. When the accused is 3. Regularity of preliminary investigation
o A Recidivist 4. Absence of preliminary investigation
o A Fugitive from justice
o Charged with physical injuries The court shall resolve the objections as early as
o Has no known residence [RSP, Sec 10, 12] practicable but not later than the start of the trial
of the case.
7. Increase or Reduction of Bail
10. Hold Departure Order & Bureau of
After the accused is admitted to bail and for good
cause, the court may increase or decrease the Immigration Watchlist
amount.  Bondsmen can prevent accused from leaving
country by arresting him or asking for him to be
INCREASED bail: Accused may be committed to re-arrested by a police officer upon written
custody if he does not give bail in the increased authority [Rule 114, Sec. 23].
amount within a reasonable period of time. [Rule  The accused may be prohibited from leaving the
114, Sec. 20] country during the pendency of his case [PP v.
Uy Tuising (1935); Manotoc v. CA (1986)]. If the
REDUCED bail: Person in custody for a period equal accused released on bail attempts to depart
to or more than the minimum of the principal from the Philippines without the permission of
penalty prescribed for the offense charged may be the court where his case is pending, he may be
released on a reduced bond. [Rule 114, Sec. 16] re-arrested without warrant [Rule 114, Sec. 23].

Hold-Departure/ Watchlist/ Allow Departure

8. Forfeiture and Cancellation of bail Orders
 A hold-departure order may be issued only by
Forfeiture of bail [Rule 114, Sec. 21] the RTCs in criminal cases within their exclusive
If the accused failed to appear in person as required, jurisdiction [SC Circular No. 39-97 (June 19,
bondsmen are given 30 days within which to: 1997)].
1. Produce the body of the principal or give reason
for the non-production. Bondsmen may:  SC Circular 39-97 deals with criminal cases
 Arrest the accused; pending in the RTC. This created a void, as to
 Cause him to be arrested by a police officer those cases pending in the MTC as well as those
or any other person of suitable age or under preliminary investigation. [Whereas
discretion upon written authority endorsed clause of DOJ Circular No. 41]
on a certified copy of the undertaking.
2. Explain why the accused failed to appear. HOLD WATCHLIST
 If the bondsmen fail to do these, judgment DEPARTURE ORDER
is rendered against them, jointly and ORDER
severally, for the amount of the bail. When it Against the Against the
 Bondsmen‘s liability cannot be mitigated or may issue accused, accused,
reduced, unless the accused has been irrespective of irrespective of
surrendered or is acquitted. nationality, in nationality, in
criminal cases criminal cases
Cancellation of bail [Rule 114, Sec. 22] falling within the pending before
1. Upon application of the bondsmen with due jurisdiction of the RTC
notice to the prosecutor, bail may be cancelled first-level courts
(MeTC, MTC, Against the
 REMEDIAL LAW REVIEWER

HOLD WATCHLIST a) Against the accused in criminal cases falling

DEPARTURE ORDER within the jurisdiction of courts below the
34 ORDER RTCs,
MCTC) respondent,
irrespective of b) Against the alien whose presence is required
nationality, in either as a defendant, respondent, or
criminal cases witness in a civil or labor case pending
pending litigation, or any case before an
preliminary administrative agency of the government.
investigation,
PFR, or MR c) The Secretary of Justice may likewise issue
before the DOJ an HDO against any person, either motu
or any of its proprio, or upon the request by the Head of
prosecution a Department of the Government, the Chief
offices Justice of the Supreme Court for the
Judiciary; the Senate President or the House
Against any Speaker for the Legislature, when the
person pursuant adverse party is the Government or any of
to the ―Anti- its agencies or instrumentalities, or in the
Trafficking in interest of national security, public safety or
Persons Act of public health.
2003‖ (RA 9208)
or in the interest  A Watchlist Order may also issue under any of
of national the above grounds as well as in connection with
security, public RA 9208 or the Anti-Trafficking in Persons Act
safety or public
health  Any HDO shall be valid for 5 years, unless sooner
Validity 5 years reckoned 60 days reckoned terminated while any Watchlist Order shall be
from the date of from the date of valid for 60 days, unless sooner terminated or
its issuance, its issuance, extended for a maximum of 60 days
unless sooner unless sooner
terminated terminated or  A HDO/WLO may be lifted or cancelled when:
extended for a 1. The validity period of the order has expired
non-extendible 2. When the accused has been acquitted or
period of not otherwise allowed to leave the country
more than 60 3. When the case is terminated or the person
days is discharged as a witness or otherwise
Grounds for When the When the allowed to leave the country
lifting or validity period validity period
cancellation has already has already  Allow Departure Orders (ADOs) may issue for
expired expired exceptional reasons to allow the person to leave
upon submission of the following:
When the When the 1. An affidavit of purpose, including an
accused has been accused has been undertaking to report to the DOJ
allowed to leave allowed by the immediately upon return
the country court to leave 2. Authority to travel or travel clearance from
during the the country the court or appropriate government office
pendency of the during the or from the investigating prosecutor
case, or has been pendency of the
acquitted of the case, or has been VII. RIGHTS OF THE ACCUSED
charge, or the acquitted of the
case in which the charge 1. Rights of accused at the trial
warrant/order of 2. Rights of persons under Custodial
arrest was issued When the PI is Investigation
has been terminated, or
dismissed or the when the PFR or
warrant/order of MR has been
1. Rights of accused at the trial [Rule
arrest has been denied and/or 115]
recalled dismissed
1) To be presumed innocent;
 Thus the DOJ promulgated DOJ Circular No. 41  Until the contrary is proved beyond
governing the issuance of HDO, Watchlist reasonable doubt
Orders, and Allow Departure Orders. - Accusation is not synonymous with
guilt. [People v. Dramayo (1971)]
 The Secretary may issue HDOs in the following  Presumption of regularity in the
cases: performance of official duty should by itself
 REMEDIAL LAW REVIEWER

prevail over the presumption of innocence  Duty to appoint counsel de oficio is

[People v. Ong (2004)] mandatory only at the time of arraignment.
[Sayson v. People (1988)]
2) To be informed of the nature and cause of  Violation of this right entitles the accused 35
accusation; to new trial. [People v. Serzo (1997)]
 Offense must be clearly charged in the  It may be waived, so long as not contrary to
information. [People v. Ortega (1997)] law, public order, public policy, morals or
 Charge must be set forth with sufficient good customs.
particularity to enable the accused to  The waiver must be unequivocally,
intelligently prepare his defense. [Balitaan knowingly and intelligently made [People v.
v. CFI of Batangas (1982)] Nicandro (1968)]
 The purpose is served by arraignment.  The right to counsel may be waived but to
[Borja v. Mendoza (1977)] insure that the waiver is voluntary and
 The title of the complaint, or the intelligent, the waiver must be in writing
designation of the offense charged or the and in the presence of the counsel of the
particular law violated is not controlling. No accused [People v. Del Castillo (2004)]
information for a crime will be sufficient if
it does not accurately and clearly allege the 6) Right to defend in person:
elements of the crime charged. [People v. Only when it sufficiently appears that he can
Dimaano (2005)] protect his rights without the assistance of
 It is a basic constitutional right of the counsel (Sec. 1[b], Rule 115, Rules of Court)
accused to be informed of the nature and
cause of accusation against them. It would 7) To testify as witness in his behalf;
be a denial of accused-appellant‘s basic  But subject to cross-examination on any
right to due process if he is charged with matter covered by his direct examination.
simple rape and consequently convicted (Sec. 1[d]. Rule 115).
with certain qualifying circumstances which  Silence will not, in any manner, prejudice
were not alleged in the information [People him.
v. Lagarde (2009)]
8) Right against self-incrimination; (2005
3) To be present and defend in person OR by
Bar)
counsel;
 The privilege is expressed in the following
provisions:
4) Right to be present at every stage of the - ―No person shall be compelled to be a
proceedings: witness against himself‖ (Sec. 17, Art.
This right may be waived when: III, Philippine Constitution)
(1) The accused is absent without just cause at - ―In all criminal prosecutions, the
the trial of which he had notice; or accused shall be entitled to the
(2) The accused under custody escapes, until following rights xxx (e) To be exempt
custody over him is regained. from being compelled to be a witness
against himself‖ (Sec. 1[e], Rule 115)
However, presence is mandatory:  Compulsion includes not only violence but
a. For purposes of identification; also moral coercion. [Chavez v. CA (1968)]
b. At arraignment; [Rule 116, Sec. 1(b)]  Covers only testimonial compulsion and
c. At the promulgation of judgment; production of incriminating documents.
Exception: If the conviction is for a light  It does not include examination of his body
offense. [Rule 120, Sec. 6] as evidence when it may be material. [US v.
Tan Teng (1912)]
Trial in absentia (1998 Bar):  An accused ―occupies a different tier of
Requisites: [Parada v. Veneracion (1997)] protection from an ordinary witness.‖ He is
a. Prior arraignment; entitled 1) to be exempt from being a
b. Proper notice of the trial; witness against himself, and 2) to testify as
c. Failure to appear is unjustifiable. witness in his own behalf; but if he offers
himself as a witness he may be cross-
 Effects: Waiver of right to be present, right examined as any other witness; however,
to present evidence and right to cross- his neglect or refusal to be a witness shall
examine witnesses. [Gimenez v. Nazareno not in any manner prejudice or be used
(1988)] against him. [People v. Ayson (1989)]
 The questions on cross examination should
5) Right to counsel: be on matters related to his direct
 It means reasonably effective legal examination. [People v. Judge Ayson (1989)]
assistance. [Gideon v. Wainright (1963)]
 It is absolute and may be invoked at all 9) Right to confrontation;
times, even on appeal. [Telan v. CA (1991)]  Applies to any witness against the accused
at the trial
 REMEDIAL LAW REVIEWER

 Includes testimony of a deceased or 1) To be assisted by counsel at all times.

absentee witness  Waiver of the right to counsel must be made
36  This right is waived by non-appearance. with the assistance of counsel. [Art. 3, Sec.
[Carredo v. People (1990)] 12(1), Consti]
 Identification by a witness of the accused is  Specifically in the following instances:
inadmissible if the accused had no - Signing of the written custodial report;
opportunity to confront witness. [People v.
Lavarias (1968)] Signing of the written extra-judicial
confession (2008 Bar)
10) Right to compulsory process; In the absence of counsel and upon
 This right may be invoked by the accused to valid waiver, it may be made in the
secure the attendance of witnesses and the presence of any his parents, elder
production of witnesses in his behalf. This is brothers and sisters, spouse, the
a constitutional right embodied in Sec. municipal mayor, the municipal judge,
14(2), Art. III of the Constitution. district school supervisor, or
 The trial court should not delegate to the priest/minister of the gospel as chosen
accused the responsibility of getting his by him.
witnesses.
 If a subpoena is issued and the witness - Signing of the waiver to the provisions
failed to appear, the court should order the of Art. 125, RPC.
arrest of the witness if necessary. [People v.
Montejo (1967)]  The modifier competent and independent in
the 1987 Constitution is not an empty
11) Right to speedy, impartial, and public rhetoric. It stresses the need to accord the
trial; accused, under the uniquely stressful
conditions of a custodial investigation, an
 In all criminal prosecutions, the accused
informed judgment on the choices
shall enjoy the right to have a speedy,
explained to him by a diligent and capable
impartial and public trial. [1987
lawyer [Lumanog v. People (2010)]
Constitution, Article III Sec. 14 (2)]
 This right to a speedy trial has consistently
been defined by the Court substantially ―as 2) To be informed, in a language known to
one free from vexatious, capricious and and understood by him, of his rights to
oppressive delays, its purpose being to remain silent and to have competent and
assure that an innocent person may be free independent counsel, preferably of his
from the anxiety and expense of a court own choice, who shall at all times be
litigation or, if otherwise, of having his guilt allowed to confer privately with the
determined within the shortest possible person arrested, detained or under
time compatible with the presentation and custodial investigation.
consideration of whatsoever legitimate
 If he cannot afford to have his own counsel,
defense he may interpose‖ [Riano, 2010]
he must be provided with a competent and
 Remedy against denial of right:
independent counsel by the investigating
a) MTD;
officer.
b) Dismissal, subject to rules on double
 Assisting counsel may be any lawyer, except
jeopardy. [SC Circular 38-98]
those:
c) Mandamus. [Vide Abadia v. CA (1994)]
- Directly affected by the case;
- Charged with conducting preliminary
12) Right to appeal; investigation;
 In all criminal prosecutions, the accused - Charged with the prosecution of
shall have the right to appeal in the manner crimes; [Sec. 3, RA 7438]
prescribed by law [Hilario v. People (2008)]
 An appeal in criminal case opens the entire 3) To be allowed visits by or conferences
case for review and the appellate court may with:
correct even unassigned errors [People v.
 Any member of his immediate family
Tambis (2008)]
("Immediate family" includes his or her
 The right to appeal is a statutory right and
spouse, fiancé or fiancée, parent or child,
the requirements must be complied with;
brother or sister, grandparent or
otherwise, the right is lost. [People v.
grandchild, uncle or aunt, nephew or niece,
Sabellano (1991)]
and guardian or ward), or
 If the accused escapes from confinement,
 Any medical doctor or
appeal is not allowed unless he voluntarily
 Priest or religious minister
surrenders within period for appeal. [People
- chosen by him or by any member of his
v. Omar (1991)]
immediate family or by his counsel, or
by
2. Rights of persons under Custodial  Any national NGO duly accredited by the
Investigation [Sec. 2, RA 7438] Commission on Human Rights or by any
 REMEDIAL LAW REVIEWER

international NGO duly accredited by the How arraignment made

Office of the President.
1) In general
Consequences of violation of custodial rights 37
 Failure to inform The Court shall issue an order directing the public
- Any arresting public officer or employee, or prosecutor to submit the record of the PI to the
any investigating officer, shall suffer a fine branch COC for the latter to attach the same to the
of P6,000.00 or a penalty of imprisonment record of the case.
of not less than 8 years but not more than
10 years, or both.
- The investigating officer who has been
previously convicted of a similar offense The court shall inform the accused of his right to
shall suffer the penalty of perpetual counsel and ask him if he desires to have one.
absolute disqualification. Unless the accused is allowed to defend himself in
 Obstruction, prevention or prohibition of right person or has employed counsel of his choice, the
to visits or conferences court must assign a counsel de oficio to defend him.
- Any person guilty thereof shall suffer the
penalty of imprisonment of not less than 4
years nor more than 6 years and a fine of
P4,000.00 Arraignment shall be made:
 Inadmissibility of evidence does not preclude
conviction on other evidence  Within 30 days from the date the court
acquired jurisdiction over the person of the
accused, unless a shorter period is provided
VIII. ARRAIGNMENT AND PLEA  In the presence of the accused who must
personally enter his plea, and of the private
1. Arraignment and Plea, how made offended party for purposes of:
2. When should plea of NOT GUILTY be - Plea bargaining (except for violations
entered of the Dangerous Drugs Act)
3. When may accused enter a plea of guilty - Determination of civil liability
to a lesser offense - Other matters requiring his presence
4. Accused plead guilty to capital offense,  Before the court where the complaint or
information was filed or assigned for trial
what the court should do
 By the judge or clerk in open court by
5. Searching Inquiry furnishing the accused with a copy of the
6. Improvident plea complaint/information, reading the same in a
7. Grounds for suspension of arraignment language or dialect known to him, and asking
whether he pleads guilty or not guilty
1. Arraignment and Plea, how made
Definition
ARRAIGNMENT is the stage where the accused is If the accused pleads NOT guilty to the crime charged,
formally informed of the charge against him by s/he shall state whether s/he interposes a negative or
reading before him the information/complaint and affirmative defense. [RA 8493]
asking him whether he pleads guilty or not guilty.
[Rule 116, Sec. 1(a)]
A negative defense will require the prosecution to
It is the stage where the issues are joined and prove the guilt of the accused beyond reasonable
without which the proceedings cannot advance doubt.
further or, if held, will otherwise be void. [Borja v.
Mendoza (1977)] An affirmative defense may modify the order of trial
and require the accused to prove such defense by
clear and convincing evidence. [RA 8493]

Note: The time of the pendency of a motion to quash

or for a bill of particulars or other causes justifying
suspension of the arraignment shall be excluded in
computing the period. [Rule 116, Sec. 1(g)]

 In case of failure of the offended party to

appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone. [Sec. 1(f), Rule 116; SC AM
No. 03-1-09-SC Part B(2)]
 REMEDIAL LAW REVIEWER

 NO ARRAIGNMENT IN ABSENTIA [Nolasco v.  The procedure in Sec. 3, Rule 116 is mandatory.

Enrile (1985)]- The presence of the accused is Failure to observe the duties of the trial judge
38 not only a personal right but also a public duty, amounts to grave abuse of discretion. [People v.
irrespective of the gravity of the offense and Devico (1997)]
the rank of the court. - The plea must be clear, definite and
- There can be no trial in absentia without unconditional. There must be well-informed
first arraigning the accused; otherwise, the understanding and full realization of the
judgment is null and void since (1) the consequences.
issues are not joined and (2) the right to be - It must be based on a free and informed
informed of the nature and cause of judgment. Mere warning of facing the
accusation is violated. supreme penalty of death is insufficient.
- The judge must ask whether the accused
2) If the accused is under preventive detention was assisted by counsel during CI and PI; ask
questions on age, educational attainment
 The case shall be raffled and its records and socio-economic status; and ask the
transmitted to the judge to whom the case was defense counsel WON he conferred with the
raffled within 3 days from the filing of the accused. [People v. Nadera (2000)]
information or complaint.  Rationale: To proceed with more care where the
 The accused shall be arraigned within 10 days possible punishment is in its severest form; to
from the date of the raffle. avoid improvident pleas of guilt. [People v.
Samontanez (2000)]
2. When should plea of NOT GUILTY
be entered 6. Improvident plea

Plea of NOT GUILTY to be entered for the Improvident plea of guilty to a capital offense
accused when he either: [Rule 116, Sec. 1(c)] IMPROVIDENT PLEA - Plea without proper
information as to all the circumstances affecting it;
 Refuses to plead
based upon a mistaken assumption or misleading
 Makes a qualified plea of guilty
information/advice. [Black’s Law Dictionary]
 Plea of guilty, but accused presents exculpatory
evidence
General rule: An improvident plea should not be
accepted. If accepted, it should not be held to be
3. When accused may enter a plea of sufficient to sustain a conviction. [People v. De
guilty to a lesser offense Ocampo Gonzaga (1984)]. The case should be
remanded to the lower court for further
Plea of guilty to a LESSER OFFENSE [Rule proceedings.
116, Sec. 2]
 At arraignment, the accused, with the consent Exception: If the accused appears guilty beyond
of the offended party and prosecutor, may be reasonable doubt from the evidence adduced by the
allowed by the trial court to plead guilty to a prosecution and defense.
lesser offense which is necessarily included in
the offense charged. Where the TC receives evidence to determine
 After arraignment but before trial, the accused whether the accused has erred in admitting his guilt,
may still be allowed to plead guilty to said the manner in which the plea is made – whether
lesser offense after withdrawing his plea of not improvidently or not - loses legal significance since
guilty. No amendment of the complaint or the conviction is based on the evidence proving the
information is necessary commission by the accused of the offense charged.
[People v. Alborida (2001)]
4. Accused plead guilty to capital
7. Grounds for suspension of
offense, what the court should do
arraignment [Rule 116, Sec. 11]
[Sec. 3, Rule 116]
1. Unsound mental condition of the
 Conduct a searching inquiry into the
voluntariness and full comprehension of the
accused at the time of the
consequences of his plea arraignment.
 Require the prosecution to prove the accused‘s  Degree of unsoundness of mind required: The
guilt and the precise degree of his culpability accused can neither comprehend the full import
 Allow the accused to present evidence in his of the charge nor can he give an intelligent
behalf plea.
 The court shall order his mental examination
and, if necessary, his confinement.
5. Searching Inquiry  The need for suspension may be determined
from physical and outward manifestations at the
Plea of guilty to a CAPITAL OFFENSE [Rule time of arraignment indicative of a mental
116, Sec. 3] disorder which the court had observed and
 REMEDIAL LAW REVIEWER

defense counsel had called attention to. [People The ff. grounds for MTQ are EXCLUSIVE:
v. Alcalde (2002)] 1. Facts charged do not constitute an offense
 An insane person within the meaning of Art. 12, 2. Court trying the case has no jurisdiction over
RPC must be deprived completely of reason or the offense charged. 39
discernment and freedom of the will at the time 3. Court trying the case has no jurisdiction over
of committing the crime. Mere abnormality of the person of the accused.
mental faculties does not exclude imputability. 4. Officer who filed the information had no
[People v. Catanyag (1933)] authority to do so.
 3 major criteria to determine insanity: [People 5. The information does not conform substantially
v. Dungo (1991)] to the prescribed form.
- DELUSION TEST – Insanity is manifested by 6. More than one offense is charged
a false belief for which there is no Exception: When a single punishment for
reasonable basis and which would be various offenses is prescribed by law
incredible under the given circumstances. 7. Criminal action or liability has been
- IRRESISTIBLE IMPULSE TEST – The accused extinguished.
has lost the power to choose between right 8. Averments which, if true, would constitute a
and wrong, to avoid the act in question, his legal excuse or justification.
free agency being at that time destroyed. 9. Accused has been previously convicted or
- RIGHT AND WRONG TEST – A perverted acquitted of the offense charged, or the case
condition of mental and mortal faculties as against him was dismissed or otherwise
to render him incapable of distinguishing terminated without his express consent (Double
between right and wrong Jeopardy Rule)
 Tests to determine insanity: [People v. Pascual
(1993)] Note:
- TEST OF COGNITION – Complete 1. Non-inclusion of an accused is not a valid ground
deprivation of intelligence in committing for MTQ.
the criminal act. It is the test adopted in
this jurisdiction. 2. An affidavit of desistance or pardon is not a
- TEST OF VOLITION – A total deprivation of ground for the dismissal of an action, once it has
free will. been instituted in court. [People v. Salazar (2010)]

2. Prejudicial question exists 3. The absence of a preliminary investigation or

 Rationale: A prejudicial question would be inability to participate in the preliminary
determinative of guilt or innocence. investigation on the ground of the accused not
 It may be raised during PI. If the information is having been served with a subpoena is not a proper
filed in court, it may be raised as ground to ground for a motion to quash but a petition for
suspend the arraignment. reinvestigation [Rodis v. Sandiganbayan (1988)]

3. Pending petition for review of the 4. The absence of probable cause for the issuance of
resolution of the prosecutor with the a warrant of arrest is not a ground for the quashal of
DOJ or Office of the President. the information but is a ground for the dismissal of
 The accused should file a motion to suspend and the case [People v. Sandiganbayan (439 SCRA 390)]
to secure a ruling on his petition for review
within 60 days from the filing of the petition. 5. Facts that constitute the defense of the
 Rationale: Need to observe judicial courtesy petitioners against the charge under the information
and to avoid legal complications in case the must be proved by them during trial. Such facts or
resolution would be different from the offense circumstances do not constitute proper grounds for a
for which the accused was arraigned, especially motion to quash the information on the ground that
if it would upgrade the offense. the material averments do not constitute the offense
[Soriano v. People (2009)]

Although the rule is that grounds not asserted in the

IX. MOTION TO QUASH motion to quash are waived, the following
1. Grounds objections are not subject to waiver:
2. Distinguish from demurrer to evidence 1. Facts charged do not constitute an offense
3. Effects of sustaining the motion to quash 2. Court trying the case has no jurisdiction over the
4. Exception to the rule that sustaining the offense charged
3. Criminal action or liability has been extinguished
motion is not a bar to another prosecution
4. Double jeopardy
5. Double Jeopardy
6. Provisional Dismissal 1) Facts Charged do not Constitute an Offense
 In all criminal cases, the accused should be
1. Grounds [Rule 117, Sec. 3] (1998 informed of the nature and the cause of the
accusation against him.
Bar)
 REMEDIAL LAW REVIEWER

 An information which does not charge an territory. If the evidence adduced show that
offense or does not allege essential elements of offense was committed somewhere else, the
40 a crime is void. court should dismiss the action for want of
jurisdiction [Uy vs CA (1997)].
TEST: WON the facts alleged, if hypothetically  In private crimes, the complaint of the offended
admitted, would meet the essential elements of the party is necessary to confer authority to the
offense, as defined by law [People vs Abad (1997)]. court.
 If the case was tried and decided upon the
 That a) the missing element may be proved theory that it had jurisdiction, the parties are
during the trial or that b) the prosecution has not barred from assailing such jurisdiction on
presented evidence to establish the same appeal.
cannot have the effect of validating the void  The court had jurisdiction over the case since,
information or of proving an offense which does for as long as he continues to evade the service
not exist [People vs Asuncion (1988)]. of his sentence, he is deemed to continue
 Instead of dismissing, the court should give the committing the crime, and may be arrested
prosecution an opportunity to amend the without warrant at any place where he may be
information [Rule 117, Sec. 4]. found [Parulan vs Director of Prisons (1968)].
a. Should the prosecutor fail to make the
amendment or should the information suffer 3) Court has no Jurisdiction over the Person of
from the same defect despite amendment, the Accused
the MTQ shall be granted [Rule 117, Sec. 4].
b. When the prosecutor dismisses the case, How jurisdiction is acquired
the prosecutor should file a valid a. By arrest of the accused or his voluntary
information, not a petition for review for appearance in court.
certiorari. b. By allowing himself to be arraigned without
 The defect is not cured by a failure to move to questioning the legality of his arrest
quash or by a plea of guilty. The failure does not
imply a waiver of the defects that go to the  It is waivable expressly or by implication, unlike
jurisdiction of the offense or to lack in some of jurisdiction over the territory and the subject
the essential elements of the offense charged matter.
[Suy Sui v. People (1953)].  When the accused files a MTQ based on this
ground, he must do so only on this ground. If he
General Rule: In a MTQ, facts other than those raises other grounds, he is deemed to have
alleged in the complaint/information may NOT submitted his person to the jurisdiction of the
be considered by the court. court [Sanchez v. Demetriou (1993)].
 If the accused believes his arrest to be illegal,
Exceptions: he should move to quash the information on
a. Facts already admitted by the prosecution such ground. However, illegality of the arrest is
[People vs Navarro]. waivable as it affects only the jurisdiction of the
b. Undisputed facts apparent from the records court over the person of the accused [People vs
of the PI and not denied by the prosecutor Meris (2000)].
[Salonga v. Pano (1985)].  When the objection is raised, the court should
c. Undisputed or undeniable facts that destroy resolve it before conducting trial to avoid
the prima facie truth accorded to unnecessary expenditure of time and money
allegations of the information [People v. de [Mead vs Argel (1982)].
la Rosa (1988)].
d. ROC expressly permits the investigation of 4) Officer who Filed Information had no
facts alleged [People v. Alagao (1966)] [Rule Authority to Do So
117, Sec. 2(f)(h), 4 & 5].
Authority to file and prosecute criminal cases is
Rationale: It would be pure technicality for the vested in:
court to close its eyes to said facts, refuse to a. Provincial fiscals and their assistants.
quash the information, and require trial. b. City fiscals and their assistants.
c. Chief State Prosecutor and his deputies.
2) Court has No Jurisdiction over the Offense
Charged Note:
 A lawyer appointed by the DOJ Secretary may
Jurisdiction over the subject matter: The power to also file an information.
adjudge concerning the general question involved.  The prosecutor who signed the information must
have territorial jurisdiction to conduct
Note: preliminary investigation of the offense [Cudia
 In a criminal prosecution, the place where the vs CA (1998)]. Otherwise, the information filed
offense was committed not only determines by him would be invalid and can be quashed on
venue, but is an essential element of that ground.
jurisdiction [Rule 110, Sec. 15; Lopez v. City  An Information filed in the Sandiganbayan must
Judge (1966)]. be signed by a graft investigating officer with
 The court cannot take jurisdiction over a person prior approval of the Ombudsman. Authority to
charged with an offense committed outside its sign may be challenged if the prosecutor files
 REMEDIAL LAW REVIEWER

the information without the approval of the 7) Criminal Action or Liability has been
Ombudsman. Extinguished

The Ombudsman cannot sign when the How criminal liability is extinguished 41
information is filed in the regular courts [Uy vs a. Death of the accused - Liability for pecuniary
Sandiganbayan (1999)]. penalties is extinguished only if death occurs
before final judgment.
 Election Offenses: Must be signed by the duly
deputized prosecutors and legal officers of the b. Service of Sentence - Execution must be by
COMELEC. virtue of a final judgment and in the form
 Lack of authority of the officer to is not cured prescribed by law.
by silence, acquiescence, express consent or
even by amendment. c. Amnesty

5) Complaint/Information does not Conform d. Absolute pardon

Substantially to the Prescribed Form
e. Prescription of the crime
 The formal and substantial requirements are
provided for in Rule 110, Sec. 6-12. f. Prescription of the penalty

General Rule: Lack of substantial compliance g. Pardon in private offenses

renders the accusatory pleading nugatory.
Note:
Exception: Mere defects in matter of form may  Enjoyment of an accrued right cannot forever be
be cured by amendment. left on a precarious balance [People vs Reyes
- Objections not raised are deemed waived, (1989)].
and the accused cannot seek affirmative  Protection from prosecution under a statute of
relief on such ground nor raise it for the limitation is a substantive right [People vs
first time on appeal [People v. Garcia Sandiganbayan (1992)].
(1997)].
ABSOLUTE PARDON CONDITIONAL PARDON
 Vague or broad allegations are generally not Only upon the
grounds for a MTQ. The correct remedy is to file acceptance since
for a bill of particulars [Rule 116, Sec. 9]. Complete upon its
accused may view
delivery
liability less onerous
6) More than One Offense is Charged than the terms

General Rule: The complaint or information must PARDON AMNESTY

charge only one offense [Rule 110, Sec. 13]. Grant by the President
Grant of the executive with concurrence of
Exception: Those cases in which existing laws majority of Congress
prescribe a single punishment for various offenses. Private, though official,
a. Complex and compound crimes, except where Public act
act
one offense was committed to conceal another. Court must take judicial
b. An offense incidental to the gravamen of the Must be pleaded and
notice [People v. Vera
offense charged. proved
(1990)]
c. A specific crime set forth in various counts, each Usually for those subject
of which may constitute a distinct offense. The to trial but have not yet
narration of the specific of the specific acts is been convicted, but can
considered a bill of particular of facts upon Granted after conviction also be available even
which the inference of guilt of the accused may after institution of the
be based [People vs Yap (1968)] criminal action and
sometimes after
Note: conviction
 Waivable. The accused may be convicted of all
Looks backward –
the offenses alleged and proved if he goes to
Looks forward – releases abolishes offense itself;
trial without objecting to the inclusion of 2 or
from consequences of completely extinguishes
more separate offenses in the same information
conviction the penalty and all its
[People vs Villamor (1998)]. effects [People v. Vera
 It is not tantamount to duplicity of offenses. An (1990)]
offense is committed in different modes and is
Granted to all persons
alleged to have been committed in the 2 or
Extended to pardoned guilty of a crime
more modes specified [Ku Bo Lin vs CA (1992)].
defendant alone and to (generally, political
 If the criminal acts are committed on different
no other cases like rebellion,
occasions, each constitutes a separate offense.
sedition, treason), and
often conditioned upon
 REMEDIAL LAW REVIEWER

their return to When and penalties prescribe: [Art 92, RPC]

obedience and duty  20 yrs – Death and Reclusion Perpetua
42 within a prescribed time  15 yrs – Other afflictive penalties
 10 yrs – Correctional penalties, except Arresto
Prescription of the Crime Mayor which prescribes in 5 yrs
Definition: It is the loss or waiver by the state of its  1 yr – light penalties
right to prosecute a crime [People vs Castor (1954)].
Act No. 3326 governs period of prescription for
Computation of Period [Art 9, RPC] violation of special laws.
1. Commencement: From the day on which the
crime is discovered by the offended party, the Where the accused is found to have committed a
authorities or their agents. lesser offense included in the offense charged, he
2. Interruption: Upon the filing of the complaint cannot be convicted of the lesser offense if it has
or information already prescribed [Magat vs People (1991)].
General Rule: Includes complaint filed with
the proper officer for PI. Computation of period: [Art 91, RPC]
1. Commencement: From the date when the
Exception: Period for offenses penalized by culprit should evade the service of his sentence.
special laws and ordinances is interrupted only 2. Interruption: If the defendant should give
by filing in court. himself up, be captured, should go to some
foreign country with which this Government has
Commences to run again: When no extradition treaty, or should commit another
proceedings terminate without the accused crime before the expiration of the period.
being convicted or acquitted, or are
unjustifiably stopped for any reason not Pardon In Private Offenses (seduction, abduction,
imputable to him acts of lasciviousness, rape)
 It extinguishes the criminal action or remits the
Note: Prescription shall not run when the offender is penalty already imposed.
absent from the Philippines.
General Rule: Pardon should be given before
Manner of computing time: the filing of the information
 1 yr = 365 days
 1 month = 30 days, unless specified Exception: Marriage between the offended
 1 day = 24 hours woman and the offender [Art 344, RPC; People
 Nights = sunrise to sunset vs Lualhati (1989)].
 First day shall be excluded, while last day
included  Applicable to co-principals, accomplices and
accessories.
Note: The rule that if the last day falls on a Sunday - If the victim is a minor: Pardon of offended
or a holiday, the act can still be done the following party and of both parents is required
day does NOT apply to the computation of the period [People vs de la Cruz (1993)].
of prescription of a crime. Information concerning
said felony cannot be filed anymore on the next 8) Contains Averments Which, if True, Would
working day as the offense has by then already Constitute a Legal Excuse or Justification
prescribed.
Justifying Circumstances [Art 11, RPC]
Prescription of a continuing crime: It is counted a) Acts in defense of his person or rights
from the latest or last act constituting the series of Requisites:
acts continuing the single crime [People vs  Unlawful aggression;
Castaneda (1990)].  Reasonable necessity of means employed;
 Lack of sufficient provocation.
Prescription Periods: [Art 90, RPC]
 20 yrs – Death and Reclusion Perpetua b) Acts in defense of the person or rights of his
 15 yrs – Other afflictive penalties  Spouse;
 10 yrs. – Correctional penalties; except Arresto  Ascendants;
Mayor, which prescribes in 5 yrs.  Descendants;
 1 yr. – Libel and similar offenses;  Legitimate/natural/adopted brothers or
 6 mos. – Oral defamation and slander by deed sisters;
 2 mos. – Light offenses  Relatives by affinity in the same degrees;
 When the penalty fixed is a compound one, the  Relatives by consanguinity within the 4th
highest penalty shall be made the basis of the civil degree.
application of letters a-c - Requisites:
o unlawful aggression
Prescription of the Penalty o reasonable necessity of means
Definition: It is the loss or waiver by the State of its employed
right to demand service of the penalty imposed. o In case provocation was given by
the person attacked, the one
 REMEDIAL LAW REVIEWER

making the defense had no part MTQ DEMURRER TO EVIDENCE

therein. order the filing of a new another information or
complaint or appeal by the prosecution
c) Acts in defense of the person or rights of a information) 43
stranger:
Requisites: If the court, in denying The order denying the
 unlawful aggression the motion to quash motion for leave to file a
 reasonable necessity of means employed acts with grave abuse of demurrer ―shall not be
 the person defending should not be induced discretion, then reviewable by appeal or
by revenge or resentment or other evil certiorari or by certiorari before
motive. prohibition lies judgment‖ [Sec. 23, Rule
119]
d) Act which causes damage to avoid evil or
injury 3. Effects of sustaining the motion to
Requisites:
 Evil sought to be avoided actually exists; quash
 Injury feared greater than that done to avoid;
 No other practical and less harmful means. Court order sustaining motion
 General Rule: Court may order that another
e) Fulfillment of a duty or lawful exercise of a complaint or information be filed [Rule 117,
right or office Sec. 5].

f) Obedience to an order issued by a superior for Exception: If MTQ was based on the ff:
some lawful purpose 1. Criminal action or liability has been
extinguished
Exempting Circumstances [Art 12, RPC] 2. Double jeopardy
a) Imbecile or Insane
Exception: Insane acting during a lucid interval  General Rule: If in custody, the accused shall
not be discharged unless admitted to bail [Rule
b) Person under 9 yrs old 117, Sec. 5]. The order must state either release
of the accused or cancellation of his bond.
c) Person over 9 yrs and under 15 yrs
Exception: If he acted with discernment Exception: When there is no order sustaining
the motion is made OR if there is one, no new
d) Causes injury by mere accident, without fault information is filed within the time specified in
or intention, while performing a lawful act the order or within such further time as the
with due care court may allow for good cause.

e) Under compulsion of irresistible force Exception to the exception: If he is in custody

for another charge.
f) Under impulse of uncontrollable fear or
greater injury  Better approach if the ground was that the court
has no jurisdiction over the subject matter: The
g) Fails to perform an act required by law when court should not quash the complaint or
prevented by some lawful insuperable cause information. Instead, it should remand or
forward the case to the proper court.
2. Distinguish from demurrer to Remedies of the prosecution
evidence General Rule: To amend the information to correct
the defects if the TC makes the order, and
MTQ DEMURRER TO EVIDENCE thereafter prosecute on the basis of the amended
Filed before entering Filed after the information [Rule 117, Sec. 4]
plea prosecution has rested its
case Exception: Prosecution is precluded where the
Does not go into the Based upon the ground for quashal would bar another prosecution
merits of the case inadequacy of the for the same offense.
evidence adduced by the
prosecution  Prosecution may appeal from the order of
Grounds are stated in Ground is ―insufficiency quashal to the appellate court.
Rule 117 of evidence‖
Does not require a prior May be filed either with  If the information was quashed because it did
leave of court leave or without leave of not allege the elements of the offense, but the
court facts so alleged constitute another offense
Granting does not Granting is deemed an under a specific statute, the prosecution may
necessarily follow a acquittal and would file a complaint for such specific offense where
dismissal (Court may preclude the filing of dismissal is made prior to arraignment and on
MTQ [People vs Purisima (1978)].
 REMEDIAL LAW REVIEWER

under a statute. Hence, they would never

Order denying MTQ Order granting MTQ constitute double jeopardy. However, the
44 Interlocutory Final order second sentence of the constitutional protection
Not appealable absent a was precisely intended to extend to situations
Immediately appealable
showing of GAD not covered by the first sentence. Although the
but subject to rules on
prior offense charged under an ordinance be
double jeopardy
different from the offense charged under a
Does not dispose of the Disposes of the case upon national statute, the constitutional protection is
case upon its merits its merits available provided that both arise from the
Proper remedy: appeal Proper remedy: appeal same act or set of acts [People vs Relova
after the trial the order (1987)].
 Liability is produced both under an ordinance
and a national statute.
4. Exception to the rule that
sustaining the motion is not a bar to Note: Where there are two different laws or
another prosecution (Bar 1994) articles of the same code that define two
crimes, prior jeopardy as to one is NOT an
General Rule: A MTQ will not be a bar to another obstacle to a prosecution of the other when
prosecution for the same offense [Rule 117, Sec. 6] each crime involves some important act which is
not an essential element of the other [Loney vs
Exception: If the ground for the quashal is either: People (2006); People vs Doriquez (1968)].
1. The criminal action or liability has been
extinguished. Requisites for 1st Jeopardy to Attach
2. The accused has been previously convicted, or 1. A valid complaint or information which is
in jeopardy of being convicted, or acquitted of sufficient in form and substance to sustain a
the offense charged. conviction
2. The court had jurisdiction
3. A valid arraignment
5. Double Jeopardy 4. A valid plea
5. Conviction, acquittal of the accused OR the case
Rule of Double Jeopardy was dismissed without his express consent
1. When a person is charged with an offense and
the case is terminated either by acquittal or Note:
conviction or in any other manner without the  Exception: A dictated, coerced and scripted
express consent of the accused, the latter verdict of acquittal is a void judgment. It
cannot again be charged with the same or neither binds nor bars anyone [Galman v.
identical offense [Rule 117, Sec. 3(i)]. Sandiganbayan (1986)].
2. Hence, as a rule, an acquittal rendered by a  ―Without express consent‖: It refers only to
court of competent jurisdiction after trial on the dismissal or termination of the case. It does NOT
merits is immediately final and cannot be refer to the conviction or acquittal [People v.
appealed on the ground of double jeopardy Labatete (1960)].
[People v. Sandiganbayan (2010)].
 If consent is not express, dismissal will be
Kinds of Double Jeopardy [Art III, Sec. 21, regarded as final – i.e. with prejudice to refiling
Consti] [Caes v. IAC (1989)].
1. No person shall be put twice in jeopardy for the Exception: Dismissal has the effect of
SAME OFFENSE. acquittal even with the consent of the accused
when predicated on (1) insufficiency of the
2. When an act punished by a law and an prosecution‘s evidence or (2) denial of the right
ordinance, conviction or acquittal under either to a speedy trial [Alamario v. CA (2001)].
shall be a bar to another prosecution to another
prosecution for the SAME ACT.  Dismissal = Acquittal
a) Demurrer to evidence
Same Offense b) Dismissal due to violation of right to speedy
 The offenses are penalized either by different trial (even if dismissal was upon motion of
sections of the same law or by different the accused or with his express consent)
statutes.
 Must examine the essential elements of each:  Dismissal vs. Acquittal
- Test: WON evidence that proves one
offense would likewise prove the other Dismissal Acquittal
[People vs Ramos (1961)]. Does not decide the case Always based on the
 It is not necessary to have absolute identity on the merits. Does not merits. Defendant‘s guilt
[People vs Relova (1987)]. determine innocence or was not proven beyond
guilt reasonable doubt.
Same Act Double jeopardy will not Double jeopardy always
 An offense penalized by ordinance is, by always attach attaches
definition, different from an offense penalized
 REMEDIAL LAW REVIEWER

proceeding before the TC may not be said

Requisites to Raise Double Jeopardy to have been lawfully terminated [People vs
1. First jeopardy must have attached. Gorospe (1984)].
2. First jeopardy must have been validly 6. Petition for certiorari filed by the prosecutor to 45
terminated. correct the penalty which should be lower than
3. Second jeopardy must be: that imposed by the TC – it is favorable to the
a. for the same offense; or accused [People vs Lee Jr (1984)].
b. the second offense necessarily includes or is 7. Filing of the 2nd information where a new fact
necessarily included in the offense charged supervened (eg. the injured party dies from the
in the first information; or injuries after conviction). [1997, 2005 Bar]
c. is an attempt or frustration thereof.  Where there is no supervening event after
arraignment and conviction:
Note: - If the 1st charge was based on findings
 The discharge of a defendant on a preliminary of a physician, and a 2nd information
investigation is NOT such an adjudication in his was filed charging a more serious crime
favor as will bar a subsequent prosecution for based on the findings of another
the offense. A preliminary investigation is not a physician [People v. Buling (1960)].
trial and does not have for its object the - If the victim died 2 days prior to
definite determination of the guilt of the arraignment of the accused who
accused. Furthermore, the accused has not yet pleaded guilty to an information for
been arraigned. serious physical injuries thru reckless
 Tests for determining whether the two imprudence, he can no longer be
offenses are identical: There is IDENTITY charged with homicide thru reckless
between the two offense not only when the imprudence [People v. City Court of
second offense is exactly the same as the first, Manila (1983)].
but also when the second offense is an attempt 8. In a continuing offense, only one crime is
to or frustration of or is necessarily included in committed. Where 2 informations arose from
the offense charged in the first information the same transaction, the 2nd case CANNOT
prosper [Mallari vs People (1988)].
Exception to the Identity Rule: 9. General Rule: Prosecution cannot file an appeal
1. The graver offense developed due to or a motion for reconsideration after jeopardy
supervening facts arising from the same act or has attached to increase the imposed penalty
omission constituting the former charge. [US vs Kepner (1904)].
2. The facts constituting the graver charge became  Exception: If the purpose is to decrease the
known or were discovered only after a plea was penalty wrongfully imposed, it is beneficial
entered in the former complaint or information. to the accused and there is no reason to
3. The plea of guilty to the lesser offense was complain.
made without the consent of the prosecutor and
of the offended party EXCEPT when offended 6. Provisional Dismissal (Bar 2003)
party failed to appear during such arraignment.
Definition: A case is dismissed without prejudice to
When there is NO double jeopardy its being refiled or revived.
1. Private offended party appeals the civil aspect
of the case [Manantan vs CA (2001)]. General Rule: Cases are provisionally dismissed
2. Conviction of a crime under a special law where there has already been arraignment and the
(malum prohibitum) which also constitutes an accused consented to a provisional dismissal.
offense under the RPC is not a bar to the
prosecution under the RPC (malum in se) Exception: If dismissal was due to a demurrer to
[People vs Sanchez (1998)]. evidence.
3. Two informations are filed charging the accused
with two different offenses having different a. When dismissal becomes permanent: Time bar
elements though arising from the same act (eg. rule
estafa and BP 22) [Ching vs CA (1990)].  1 year after issuance of the order without the
4. Prosecutor may revive and reinstate a case case having been revived for offenses
without filing a new information when the punishable: [Rule 117, Sec. 8]
information is provisionally dismissed with the 1. By imprisonment not exceeding 6 yrs
conformity of the accused after arraignment and 2. By fine of any amount
the initial presentation of prosecution evidence 3. By both
has started since the order of provisional  2 yrs after issuance of the order without the
dismissal has not yet become final [Lauchengco case having been revived for offenses punishable
vs CA (1979)]. by imprisonment of more than 6 yrs.
5. Dismissal of the case was declared null and void  The State may revive beyond the periods
[People vs Mogol (1984)]. provided there is a justifiable necessity for the
 Where an order dismissing a case is not on delay.
the merits, it cannot bar as res judicata a  The Court is not mandated to apply Sec. 8
subsequent case based on the same offense. retroactively simply because it is favorable to
The dismissal being null and void, the
 REMEDIAL LAW REVIEWER

the accused. The time-bar under the new rule e) Modification of the order of trial if accused
was fixed for the benefit of the State and the admits the charge but interposes a lawful
46 accused, and not for the accused only [People vs defense (reverse trial)
Lacson (2003)]. f) Other matters that will promote a fair and
expeditious trial of the civil and criminal
Note: aspects of the case
 How to revive a case:
1. Refiling of the information Role of the Judge
2. Filing of a new information for the same During the pre-trial, the judge shall be the one to
offense or one necessarily included in the ask questions on issues raised therein and all
original offense charged. questions must be directed to him to avoid hostilities
between the parties. [SC AM 03-1-09-SC]
b. Requisite procedure [Rule 117, Sec. 8]
 Motion can be made: Note:
1. By the prosecution, with the express  Stipulation of facts
conformity of the accused - This is no longer prohibited in criminal
2. By the accused cases [People vs Hernandez (1996)].
3. By both - However, in a case of rape with the
 Requisites for Provisional Dismissal: allegation that victim is below 12 yrs of age
1. Consent of the prosecutor which qualifies said crime and increases its
2. Consent of the accused penalty to death, nothing short of proof
3. Notice to the offended party beyond reasonable doubt of every fact
necessary to constitute the elements of the
crime must be established. Said facts and
X. PRE-TRIAL circumstances cannot be subject of
stipulation [People vs Sitao (2002)].
1. Matters to be considered during pre-trial
2. What the court should do when  Marking for identification of the evidence of
prosecution and offended party agree to parties
the plea offered by the accused Proffer of exhibits is not allowed. It ought to be
3. Pre-trial agreement done at the time a party closes the presentation
of evidence.
4. Non-appearance during pre-trial
5. Pre-trial order
6. Referral of some cases for Court Annexed 2. What the court should do when
Mediation and Judicial Dispute Resolution prosecution and offended party agree
to the plea offered by the accused
1. Matters to be considered during
Plea bargaining
pre-trial Definition: It is the process in criminal process
whereby the 1) accused, 2) offended party, and the
Section 1. Pre-trial; mandatory in criminal cases 3) prosecution work out a mutually satisfactory
Pre-trial is MANDATORY in all criminal cases. Its disposition of the case subject to court approval [See
main objective is to achieve an expeditious also DOJ Circular No. 35 (June 31, 1990), as
resolution of the case. amended by Circular No. 55 for the guidelines on
plea bargaining as well as note on Rule 116].
Coverage [Rule 118, Sec. 1]
The court shall order pre-trial in ALL criminal cases It usually involves the defendant‘s pleading guilty to
cognizable by the Sandiganbayan, RTC and MTC or a lesser offense or to one or some of the counts of a
MTCC or MCTC or MeTC multi-count indictment in return for a lighter
sentence than that for the graver charge [People vs
Period [Rule 118, Sec. 1] Villarama (1989)].
General Rule: After arraignment and within 30 days
from the time the court acquires jurisdiction over The conviction of the accused of the lesser offense
the person of the accused. precludes the filing and prosecution of the offense
originally charged in the information, except when
Exception: If a shorter period is provided by special the plea of guilty to a lesser offense is without the
or SC circulars. consent of the offended party and the prosecutor
[People vs De Luna (1989)].
Things considered during pre-trial / Purposes
[Rule 118, Sec. 1] When not allowed: Section 23 of RA9165
a) Plea bargaining (Comprehensive Dangerous Drugs Act of 2002) says
b) Stipulation of facts that ―any person charged under any provision of this
c) Marking for identification of evidence Act regardless of imposable penalty shall not be
d) Waiver of objections to admissibility of evidence allowed to avail of the provision on plea-
bargaining.‖
 REMEDIAL LAW REVIEWER

Effect when the prosecution and the offended Exception: Agreements not covering matters
party agree to the plea offered by the accused: referred to in Rule 118, Sec. 1 [SC A.M. No. 03-1-09-
Court shall: SC]
a) Issue an order which contains the plea 47
bargaining arrived at; Required form of pre-trial agreement
b) Proceed to receive evidence on the civil aspect 1. Must be in writing
of the case; and 2. Signed by the accused
c) Render and promulgate judgment of conviction, 3. Signed by his counsel
including the civil liability or damages duly
established by the evidence [SC AM 03-1-09-SC] Otherwise, it cannot be used against the accused
(i.e. inadmissible in evidence). The constitutional
When plea bargaining fails: right to present evidence is waived expressly.
Court shall
 Adopt the minutes of preliminary Purpose for signature requirement: [People vs Uy
conference as part of the pre-trial (2000)]
proceedings, confirm markings of exhibits 1. To safeguard the rights of the accused against
or substituted photocopies and admissions improvident or unauthorized agreements or
on the genuineness and due execution of admissions which his counsel may have entered
documents and list object and testimonial into without his knowledge.
evidence; 2. To eliminate any doubt on the conformity of the
 Scrutinize every allegation of the accused to the facts agreed upon.
information and the statements in the
affidavits and other documents which form Effect
part of the record of the preliminary  The stipulations become binding on the parties
investigation and other documents who made them. They become judicial
identified and marked as exhibits in admissions of the fact or facts stipulated (2008
determining farther admissions of facts, Bar)
documents and in particular as to the  Even if placed at a disadvantageous position, a
following: party may not be allowed to rescind them
- the identity of the accused; unilaterally; he must assume the consequences
- court's territorial jurisdiction relative to the of the disadvantage [Bayas vs Sandiganbayan
offense/s charged; (2002)].
- qualification of expert witness/es;
- amount of damages; 4. Non-appearance during pre-trial
- genuineness and due execution of documents;
- the cause of death or injury, in proper cases; [Rule 118, Sec. 3]
- adoption of any evidence presented during If counsel for the accused or the prosecutor 1) does
the preliminary investigation; not appear at the pre-trial conference and 2) does
- disclosure of defenses of alibi, insanity, self- not offer an acceptable excuse, the court may
defense, exercise of public authority and impose proper sanctions or penalties (reprimand,
justifying or exempting circumstances; and fine or imprisonment).
- such other matters that would limit the facts
in issue. Rationale: to enforce the mandatory requirement of
 Define factual and legal issues; pre-trial in criminal cases [Rule 118, Sec. 1].
 Ask parties to agree on the specific trial
dates and adhere to the flow chart Note: The accused is not included because his
determined by the court which shall constitutional right to remain silent may be violated.
contain the time frames for the different The accused is not required to attend (unless
stages of the proceeding up to ordered by the court) and is merely required to sign
promulgation of decision and use the time the written agreement arrived at in the pre-trial
frame for each stage in setting the trial conference, if he agrees to the contents of such.
dates;
 Require the parties to submit to the Branch 5. Pre-trial order [Rule 118, Sec. 4]
COC the names, addresses and contact
numbers of witnesses that need to be Issuance
summoned by subpoena; and  Issued by the court
 Consider modification of order of trial if  Within 10 days after the pre-trial. [SC AM 03-1-
the accused admits the charge but 09-SC]
interposes a lawful defense. [SC AM 03-1-  Judgment of acquittal based on pre-trial despite
09-SC] disputed documents and issues of fact amounts
to grave error and renders the judgment void
3. Pre-trial agreement [People vs Santiago (1989)].

Form Contents
General Rule: Court approval is required. a) Actions taken;
b) Facts stipulated;
 REMEDIAL LAW REVIEWER

c) Evidence marked;
d)
e)
Admissions made;
The number of witnesses to be presented; and
XI. TRIAL
48
f) The schedule of trial. 1. Instances when presence of accused is
required by law
(Note: Letters d) to f) are added by SC AM 03-1-09- 2. Requisite before trial can be suspended
SC to the requirements under Rule 118, Sec. 4) on account of absence of witness
3. Trial in Absentia
Effect
4. Remedy when accused is not brought to
a) Binds the Parties
 The accused must move to correct any trial within the prescribed period
mistake or modify the pre-trial order. 5. Requisites for discharge of accused to
Otherwise, it will be deemed to have waived become a state witness
and be barred from questioning 6. Effects of Discharge of accused as state
 If the matters taken up and embodied in the witness
pre-trial order were not in accordance with 7. Demurrer to Evidence
what was really stipulated upon, objections
should be interposed as soon as the pre-trial
order is issued. [People v. Abelita (1992)]
1. Instances when presence of
 The procedure is substantially the same in accused is required by law
civil cases, except that any modification of
the pre-trial order in civil cases must be made Presence is mandatory:
before the trial. No such limitation is  For purposes of identification;
provided for in criminal cases (1997 Bar).
b) Limits the trial to those matters not disposed of  At arraignment; [Rule 116, Sec. 1(b)]
c) Control the course of the action during trial
 Exception: If modified by the court to  At the promulgation of judgment;
prevent manifest injustice. Exception: If the conviction is for a light offense.
[Rule 120, Sec. 6]
6. Referral of some cases for Court
 [Rule 119, Sec. 15]
Annexed Mediation and Judicial
Dispute Resolution When it satisfactorily appears that a witness for
the prosecution is too sick or infirm to appear at
A.M. No. 03-1-09-SC the trial as directed by the court, or has to
RE: PROPOSED RULE ON GUIDELINES TO BE leave the Philippines with no definite date of
OBSERVED BY TRIAL COURT JUDGES AND CLERKS returning, he may forthwith be conditionally
OF COURT IN THE CONDUCT OF PRE- TRIAL AND examined before the court where the case is
USE OF DEPOSITION-DISCOVERY MEASURES pending.
RESOLUTION
Such examination, in the presence of the
CRIMINAL CASES accused, or in his absence after reasonable
After the arraignment, the court shall forthwith set notice to attend the examination has been
the pre-trial conference within thirty days from the served on him, shall be conducted in the same
date of arraignment, and issue an order: manner as an examination at the trial.
(a) Requiring the private offended party to appear
thereat for purposes of plea-bargaining except Failure or refusal of the accused to attend the
for violations of the Comprehensive Dangerous examination after notice shall be considered a
Drugs Act of 2002, and for other matters waiver. The statement taken may be admitted
requiring his presence; in behalf of or against the accused.
(b) Referring the case to the Branch COC, if
warranted, for a preliminary conference to be 2. Requisites before trial can be
set at least three days prior to the pre-trial to
mark the documents or exhibits to be presented
suspended on account of absence of
by the parties and copies thereof to be attached witness
to the records after comparison and to consider
other matters as may aid in its prompt Absence or unavailability of an essential witness
disposition; and  ―Absent‖ means that his whereabouts are
(c) Informing the parties that no evidence shall be unknown or cannot be determined by due
allowed to be presented and offered during the diligence.
trial other than those identified and marked  ―Unavailable‖ means that his whereabouts are
during the pre-trial except when allowed by the known but presence for trial cannot be obtained
court for good cause shown. In mediatable by due diligence.
cases, the judge shall refer the parties and their
counsel to the PMC unit for purposes of The period of delay resulting from the absence or
mediation if available. unavailability of an essential witness shall be
 REMEDIAL LAW REVIEWER

excluded in computing the time within which trial DISMISSAL WITHOUT DISMISSAL WITH
must commence. [Rule 119, Sec. 3] PREJUDICE PREJUDICE
Terminates the case but 49
3. Trial in Absentia (1998 Bar) reserving, however, to
the plaintiff the right to
Requisites: file a new complaint
1. Accused has been arraigned; which is entirely new
2. He was duly notified of trial; and different from that
3. His failure to appear is unjustified. which was dismissed

Purpose: To speed up disposition of cases. 5. Requisites for discharge of accused

General rule: The right to be present at one‘s trial to become a state witness
may be waived.
Discharge of a co-accused
Exceptions: At certain stages: [Lavides v. CA (2000)] General rule: It is the duty of the prosecutor to
 Arraignment and plea include all the accused in the
 Promulgation of sentence, unless for light complaint/information.
offense
 During trial whenever necessary for ID purposes Exception: Prosecutor may ask the court to
discharge one of them after complying with the
Exception to the exception: If the accused conditions prescribed by law. [Rule 119, Sec. 17]
unqualifiedly admits in open court after arraignment  This applies only when the information has
that he is the person named as the defendant in the already been filed in court.
case on trial.
Requisites [Rule 119, Sec. 17]
(1) Two or more persons are jointly charged with
4. Remedy when accused is not the commission of any offense.
brought to trial within the prescribed (2) Upon motion of the prosecution before resting
period its case
 Petition for discharge is filed before the
Effect of delay [Rule 119, Sec. 9] defense has offered its evidence. [People v.
 On motion of the accused, the information may Aniňon (1988)]
be dismissed on the ground of denial of his right (3) Hearing in support of the discharge where the
to speedy trial (2007 Bar). prosecution is to present evidence and the
 Must be raised prior to trial; otherwise, the right sworn statement of each proposed state
to dismiss is considered waived under Rule 119, witness.
section 9. (4) The court is satisfied of the ff:
 Burden of Proof (a) Absolute necessity for the testimony of the
- The accused has the burden of proving the accused whose discharge is requested;
ground of denial of right to speedy trial for  He alone has the knowledge of the
the motion. crime, and not when his testimony
- The prosecution has the burden of going would simply corroborate or strengthen
forward with the evidence to establish the the evidence in the hands of the
exclusion of time under Rule 119, Sec. 3. prosecution. [Flores v. Sandiganbayan
 Subject to the rules on double jeopardy. Hence, (1983)]
if with prejudice, the case cannot be revived  E.g. When there is a conspiracy and the
anymore. crime is committed clandestinely, the
discharge of a conspirator is necessary
DISMISSAL WITHOUT DISMISSAL WITH to testify against the other conspirator.
PREJUDICE PREJUDICE [Chua v. CA (1996)]
(b) There is no other direct evidence available
Adjudication on the
for the proper prosecution of the offense,
merits, and final
except the testimony of the said accused;
Allows new suit for the disposition, barring the
(c) The testimony can be substantially
same cause of action right to bring or
corroborated in its material points;
maintain an action on
(d) The accused does not appear to be the
the same claim or cause
most guilty;
Imports contemplation of
 Gravity or nature of acts he committed
further proceedings, and
are compared to those of his co-
when they appear in an
Is res judicata as to accused.
order or decree, it shows
every matter litigated  Not merely the fact that in law the same
that the judicial act is
penalty is imposable on all.
not intended to be res
(e) The accused has not, at any time, been
judicata of the merits
convicted of any offense involving moral
turpitude
 REMEDIAL LAW REVIEWER

may then oppose within a non-extendible period

Note: The rule on the discharge of an accused to be of 5 days from receipt.
50 utilized as state witness clearly looks at his actual  If leave of court is granted, the demurrer must be
and individual participation in the commission of the filed within a non-extendible period of 10 days
crime, which may or may not have been perpetrated from notice. Prosecution may oppose within a
in conspiracy with the other accused. [People v. similar period.
Ocimar (1992)]
Effect of granting motion for leave to file
6. Effects of Discharge of accused as demurrer
state witness  The court may dismiss the action on the ground of
insufficiency of evidence. [Rule 119, Sec. 23]
 Sufficient evidence for frustrating a demurrer is
Effect of discharge evidence that proves: [Gutib v. CA (1999)]
General rule: The order of discharge shall: [Rule
- Commission; and
119, Sec. 18]
- Precise degree of participation.
 Amount to an acquittal of the discharged accused;
o E.g. Proof of the possession of recently
 Bar future prosecutions for the same offense.
stolen goods taken together with proof of
the commission of the theft, may be and
Exception: If the accused fails/refuses to testify
generally will be sufficient to establish the
against his co-accused in accordance with his sworn
guilt of the accused, if there is nothing in
statement constituting the basis for his discharge.
the record to raise a doubt as to the guilty
character of the possession, though there is
 Any error in asking for and in granting the
no presumption to that effect. [U.S. v.
discharge cannot deprive the discharged of the
Catimbang (1916)]
acquittal and the constitutional guaranty against
double jeopardy. [People v. Verceles (2002)]
Effect of denial of motion for leave to file
 Subsequent amendment of the information does
not affect discharge. [People v. Taruc (1962)] demurrer
 Order denying the motion for leave or order
denying the demurrer itself, is not reviewable by
7. Demurrer to Evidence (1998, 2001, appeal or by certiorari before judgment. [Rule
2004 Bar) 119, Sec. 23]
 It is interlocutory, but it may be assigned as error
Definition: Objection by one of the parties to the and reviewed in the appeal that may be taken
effect that the evidence which his adversary from the decision on the merits [Cruz v. People
produced is insufficient in point of law, whether true (1999)]
or not, to make out a case or sustain the issue.
[Gutib v. CA (1999)] Right of the accused to present evidence
after demurrer is denied [Rule 119, Sec. 23]
Purpose: In light of the constitutional right to be
presumed innocent and of the privilege against self- FILED WITH LEAVE OF FILED WITHOUT LEAVE
incrimination [Goldstein, 1960] for the accused to COURT OF COURT
test the sufficiency of prosecution‘s evidence before May adduce evidence in Waives the right to
presenting his defense. his defense present evidence
Purpose: To determine Submits the case for
 There is no material difference between the WON demurrer was filed judgment on the basis of
Motion to Acquit of the accused before the TC and merely to stall the the evidence for the
the demurrer to evidence. The only difference: If proceedings prosecution
the MTD is ordered, it is tantamount to an Implied leave of court is If there are 2 or more
acquittal, but the order of denial of the demurrer no longer sufficient and accused and only one
to evidence is not reviewable by appeal or prevents accused from presents a demurrer
certiorari before judgment. presenting evidence without leave of court,
 Purpose: to prevent the filing of demurrer based [e.g. accused files
on frivolous and flimsy grounds. motion with reservation General rule: The court
to present evidence in may defer resolution
How initiated [Rule 119, Sec. 23] case motion is denied] until decision is rendered
 By the court motu proprio, after giving the on the other accused
prosecution the opportunity to be heard;
 Upon demurrer to evidence filed by the accused: Exception: If it can be
-With leave of court; shown from the decision
-Without leave of court. that the resolution on
the demurrer was
Motion for leave to file demurrer [Rule 119, rendered not only on the
Sec. 23] basis of the
 It must specifically state its grounds. prosecution‘s evidence
 It must be filed within a non-extendible period of but also on the evidence
5 days after the prosecution rests. Prosecution adduced by his co-
accused
 REMEDIAL LAW REVIEWER

- There is no law that requires a specific

XII. JUDGMENT finding of facts with respect to the
evidence for the defense. [Reyes v. People
1. Requisites of a judgment (2006)] 51
2. Contents of Judgment
3. Promulgation of judgment; instances of Judge who penned the decision need not be the
promulgation of judgment in absentia one who heard the case
The fact alone that the judge who heard the
4. When does judgment become final (four
evidence was not the one who rendered the
instances) judgment but merely relied on the record of the
case does not render his judgment erroneous or
1. Requisites of a judgment irregular.

Form [Rule 120, Sec. 1] The Court generally will not find any
 Written in official language. misapprehension of facts as it can be fairly assumed
- If given verbally, it is incomplete. It does under the principle of regularity of performance of
not have an effect before it was actually duties of public officers that the transcript of
reduced to writing and signed by the judge. stenographic notes were thoroughly scrutinized and
[People v. Catolico (1972)] evaluated by the judge himself. [Concepcion v.
- A verbal order dismissing the case can be Court of Appeals (2000)]
rescinded without prejudicing the rights of
the accused – No double jeopardy arises. 2. Contents of Judgment
[Abaya v. Garcia (1988)]
- The remedy for a verbal judgment is to 1) Conviction
appeal or file a petition for mandamus to
compel the court to put the decision in The judgment of conviction shall state:
writing. (1) The legal qualification of the offense
 Personally and directly prepared by the judge. constituted by the acts committed by the
- Every decision must state distinctly and accused and the aggravating/mitigating
clearly the factual and legal basis circumstances which attended its commission.
therefore. [Art. 8, Sec. 6, Consti]  If a decision does not contain a dispositive
- Judges must nonetheless be allowed to portion but the last two paragraphs embody
synthesize and simplify their decisions the court‘s conclusions, then the decision is
considering the heavy load of trial judges valid. [People v. Valeriano (1993)]
for as long as there is compliance with  The TC should express not only its
minimum essence of factual and legal conclusion but also the provision of the law
bases. violated for the purpose of informing the
o He may quote from narration of facts by accused of the nature of the crime and the
the OSG in his brief or memoranda of law penalizing the same.
both parties and adopt the same as his  There is no need to state the particular
own. [Hernandez v. CA (1993)] paragraph and article in the RPC, so long as
o Common sense dictates that he be given the offense is clearly understood from the
complete liberty to express his opinion, facts.
unrestrained by any fear that a higher  Mere failure to specify the particular
court might call down. [People v. provision of law does not invalidate the
Meneses (1998)] decision, if it did actually apply the proper
 Signed by the judge. provision.
- The judge who presided over the entire
trial would be in a better position to (2) The participation of the accused in the offense,
ascertain the truth or falsity of the whether as principal, accomplice or accessory
testimonies. after the fact.
- But the judge who only took over can
render a valid decision by relying on the (3) The penalty imposed upon the accused.
transcript. It does not violate due process.  The penalty should not be imposed in the
[People v. Badon (1999)] alternative. There should be no doubt as to
 Contains clearly and distinctly a statement of the offense committed and the penalty for
facts proved and the law upon which judgment it.
is based.
- There is sufficient compliance if the (4) The civil liability or damages caused by his
decision summarizes the evidence of both wrongful act/omission to be recovered from the
parties, synthesizes the findings and accused by the offended party, if there is any,
concisely narrates how the offense was unless the enforcement of the civil liability by a
committed. separate civil action has been reserved/waived.
- Failure on the part of the TC to make a
finding of fact is a revocable error.
 REMEDIAL LAW REVIEWER

PROOF BEYOND REASONABLE DOUBT – Degree of information which change the nature of the
proof which produces conviction in an unprejudiced offense.
52 mind. [People v. Bacalzo (1991)]
When an offense includes or is included in another
Judgment for two or more offenses [Rule 120, Sec. 5]
 General rule: Complaint/information must The offense charged necessarily includes the offense
charge only one offense. proved when some of the essential
elements/ingredients of the former, as alleged in
Exception: Cases in which existing laws the complaint/information, constitute the latter.
prescribe a single punishment for various
offenses. An offense charged is necessarily included in the
offense proved when the essential ingredients of the
 General rule: Duplicitous information is subject former constitute or form part of those constituting
to a motion to quash. the latter.

Exception: Defect is waived when accused fails Effect

to move for quashal.  The accused shall be convicted of: [Rule 120,
- THUS, where the accused fails to object to Sec. 4]
2 or more offenses charged in a single 1) The offense proved which is included in the
information/complaint before trial [Rule offense charged; or
120, Sec. 3], the court may: 2) The offense charged which is included in
o Convict him of as many offenses as are the offense proved
charged and proved; and  The right to be informed of the charges has not
Exception: One of the offenses has been violated because where an accused is
been a necessary means for committing charged with a specific crime, he is duly
the other offense and where both have informed also of lesser crimes/offenses included
been the result of a single act. therein. [People v. Villamar (1998)]
o Impose on him the penalty for each  Where a complex crime is charged and the
offense, setting out separately the evidence fails to support the charge as to one of
findings of fact and law in each the component offenses, the accused can be
offense. convicted of the one which is proven.
Exception: Maximum duration of
offense: Follow the three-fold rule on State liability for unjust conviction
the service of penalty.  The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
Judgment in case of variance between allegation victims of unjust imprisonment/detention and
and proof victims of violent crimes. [RA 7309]
 General rule: The defendant can be convicted  Requirements for compensation:
only of the crime with which he is charged. 1) Unjust accusation;
2) Unjust conviction; and
 Rationale: He has the right to be informed of - It is the same as knowingly rendering
the nature of the offense with which he is an unjust judgment - It is contrary to
charged before he is put on trial. [People v. law or is not supported by the evidence
Guevarra] and the same is made with conscious
and deliberate intent to do an
However, minor variance between the injustice. [Art. 204, RPC]
information and the evidence: 3) Unjust imprisonment.
- Does not alter the nature of the offense;
- Does not determine or qualify the crime or 2) Acquittal
penalty;
- Cannot be ground for acquittal. Definition: A finding of not guilty based on the
merits, either:
 Exception: He can be convicted of an offense  The evidence does not show that his guilt is
proved provided it is included in the charge, or beyond reasonable doubt; or
of an offense charged which is included in that  A dismissal of the case after the prosecution has
which is proved. [Rule 120, Sec. 4] rested its case and upon motion of the accused
- The accused can be convicted of an offense on the ground that the evidence fails to show
only when it is both charged and proven. beyond doubt that accused is guilty.
- The mere fact that the evidence presented
would indicate that a lesser offense outside REASONABLE DOUBT – Doubt engendered by an
the court‘s jurisdiction was committed does investigation of the whole proof and an inability,
not deprive the court of its jurisdiction, after such investigation, to let the mind rest upon
which had vested in it under the allegations the certainty of guilt.
in the information.
Rationale: It is always better to err in acquitting
 Exception to the exception: Where there are than in punishing. [People v. Lizada (1993)]
facts that supervened after the filing of the
 REMEDIAL LAW REVIEWER

Promulgation: An official proclamation or

ACQUITTAL DISMISSAL announcement of a judgment or order.
[Rule 120] [Rule 117] 53
Two things are essential and necessary for the valid
Terminates the case promulgation of a court decision:
Decision on the merits 1. There must be a judge or judges legally
Not on the merits and no
based on a finding that appointed or elected and actually acting either
finding of guilt is made
the accused is not guilty de jure or de facto, and
2. The said judgment must be duly signed and
 The judgment shall state whether: promulgated during the incumbency of the judge
1) The evidence of the prosecution absolutely who signed it. [Miguel v Municipal Trial Court
failed to prove the guilt of the accused; or (1986)]
2) It merely failed to prove his guilt beyond
reasonable doubt. Judgment/sentence does not become a
judgment/sentence in law until it is:
In either case, the judgment shall determine if 1) Read and announced to the defendant; or
the act or omission from which the civil liability 2) Has become a part of the record of the court.
might arise did not exist. [US v. CFI of Manila, 24 Phil 321]
- #2 does not extinguish the civil liability
arising from his acts, since the civil liability Where there is no promulgation of judgment, no
arose not from a crime but from the right to appeal accrues.
damage caused by such acts, which can be
proven by a lower quantum of evidence. Notice for Promulgation
 Clerk of Court gives notice to accused personally
General rule: The court has authority to express or through bondsman or warden and counsel.
disapproval of certain acts even if judgment is for  If the accused jumps bail or escapes from prison
acquittal. and was tried in absentia, notice will be served
in last known address. [Rule 120, Sec. 6]
Exception: The court is not permitted to censure
the accused in a judgment for acquittal – no matter Sin perjuicio judgment: A judgment without a
how light, a censure is still a punishment. statement of the facts in support of its conclusion to
- No court has the power to mete out be later supplemented by the final judgment. [Dizon
punishment. A finding of guilt must v. Lopez (1997)]
precede the punishment.  Merely reading the dispositive portion of the
- This reprehension, however, must be decision is not sufficient.
relevant to the issue in the case. If  Judgment must state the facts and the law on
irrelevant/impertinent, they should be which it is based.
stricken out or expunged from the record  While SC has expressed approval of the practice
like any other extraneous matters. [People of some judges withholding the dispositive
v. Meneses (1998)] portion from their opinions until the very last
moment of promulgation in order to prevent
 Acquittal based on reasonable ground does not leakage, such refers to the preparation of the
bar a separate civil action based on quasi-delict. decision and not to promulgation.
[Lontoc v. MD Transit (1988)]  There is no more reason to keep it a secret at
 The Court may hold accused civilly liable even the stage of promulgation.
when it acquits him. Acquittal extinguishes civil
liability only when the judgment includes a a. Promulgation where judge is absent [Rule 120,
declaration that the facts from which the civil Sec. 6]
liability might arise did not exist. The judgment may be promulgated by the clerk of
- The court may nonetheless hold the accused court when the judge is absent or outside the
civilly liable in favor of the offended party, province or city.
or it may deny the award of civil damages
expressly or impliedly by being silent on the b. Presence of accused required; exception [Rule
matter. 120, Sec. 6]
- The losing party may appeal the ruling on
the civil liability, as in any other ordinary General rule: Presence of the accused is mandatory.
appeal, in his name and not in the name of
the People Exception: convictions for light offenses
 The Judge acquitting an accused cannot punish
him at the same time Conviction for He may appear through
light offense counsel/representative
3. Promulgation of judgment; Promulgation in
To prevent subversion of judicial
instances of promulgation of process and enable enforcement
absentia
of civil liability
judgment in absentia (1997 Bar)
 REMEDIAL LAW REVIEWER

No appeal is necessary; judgment  After finality, the TC is divested of authority to

is final and executory amend/alter the judgment, except to correct
54 - Note the old rule that presence clerical errors.
Verdict of
of the accused during
acquittal
promulgation of judgment is When judgment of acquittal becomes final
required only in case of  It is immediately final and executory.
conviction  The State may not seek its review without
placing the accused in double jeopardy.
 If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the ROC against the judgment and the court
XIII. NEW TRIAL OR
shall order his arrest. RECONSIDERATION
- However, within 15 days from promulgation
1. Grounds for New Trial
of judgment, he may surrender and file a
motion for leave of court to avail of these 2. Grounds for Reconsideration
remedies. He shall state the reasons for his 3. Requisites before a new trial may be
absence. granted on ground of newly discovered
- If he proves his absence was for a justifiable evidence
cause, shall be allowed to avail of the 4. Effects of granting a new trial or
remedies within 15 days from notice. reconsideration
 Promulgation when accused is 5. Application of Neypes Doctrine in Criminal
confined/detained in another city Cases
- It will be done in the RTC who has
jurisdiction over the place of confinement.
 Failure to appear at the scheduled date of 1. Grounds for New Trial [Rule 121,
promulgation Sec. 2]
- Promulgation is made by recording the
judgment in the criminal docket and serving  That errors of law or irregularities prejudicial to
a copy at the accused‘s last known address the substantial rights of the accused have been
or through counsel. committed during the trial;
 Promulgation date where judge no longer a
judge is void. General rule: Error of the defense counsel in
- If at the time of the promulgation, the the conduct of the trial is neither an error of
judge penning the decision has ceased being law nor an irregularity.
a judge of the court, the decision would not
be an act of the court. [People v. Exception: Acquittal would in all probability
Dimalanta] have followed the introduction of certain
- Promulgation by a succeeding judge testimony which was not submitted at the trial
produces no legal effect since it cannot under improper or injudicious advice of
restore validity to a document already void. incompetent counsel.
- Irregularities must be with such seriousness
4. When does judgment become final as to affect prejudicially the substantial
(four instances) [Rule 120, Sec. 7] rights of the accused.

 That new and material evidence has been

Judgment becomes final:
discovered which the accused could not with
1) After the lapse of the period for perfecting an
reasonable diligence have discovered and
appeal;
produced at the trial and which if introduced
2) When the sentence has been partially/totally
and admitted would probably change the
satisfied or served;
judgment.
3) The accused has expressly waived in writing his
right to appeal, or
4) When the accused applies for probation, and 2. Grounds for Reconsideration
thereby waives right to appeal. [Regalado]
 Errors of law or fact in the judgment, which
Exception: cases where death penalty was requires no further proceedings. [Rule 121, Sec.
imposed—automatic review; judgment does not 3]
become final after the promulgation and by the
TC‘s issuance of a commitment order. Rationale: To afford the TC the opportunity to
correct its own mistakes and to avoid
 Before the judgment becomes final, the TC has unnecessary appeals.
plenary power to make, either on motion or
motu proprio, such amendment or alterations as 3. Requisites before a new trial may
it may deem best, within the frame of law, to
promote the ends of justice.
be granted on ground of newly
discovered evidence
 REMEDIAL LAW REVIEWER

Requisites: That the evidence - [Jose v. CA (1997)] GROUND EFFECT COURT MAY
a) Was discovered after the trial; Newly- Evidence Allow
b) Could not have been discovered and produced at discovered already introduction of
the trial even with the exercise of reasonable evidence adduced shall other such 55
diligence. [US v. Pico (1982)] stand and the evidence in the
 Burden of proving this is on the accused. newly- interest of
[US v. Torrente (1922)] discovered and justice
c) Is material, not merely such other
cumulative/corroborative/impeaching; and evidence shall
d) Is of such weight that it would probably change be taken and
the judgment if admitted. considered
 It must be of weighty influence and will together with
affect the result of the trial. [People v. the evidence
Alfaro (2003)] already in the
record
Exceptions:
 ―Interest of justice‖ as gauge for introduction of Remedy against GAD in granting MNT/MFR:
new evidence Certiorari or prohibition. Otherwise, the prosecution
- In People v. Almendras (2003), the court may no longer have opportunity to question the
ruled that a motion for a new trial may be order if accused is acquitted after a new trial is
granted on a ground not specifically conducted (because there will be double jeopardy).
provided in the rules, provided that it is [Luciano v. Estrella (1970)]
sought in the interest of justice. In that
case, the relief of a new trial was granted 5. Application of Neypes Doctrine in
to a client who has suffered by reason of
his/her counsel‘s gross mistake and Criminal Cases
negligence.
 When there is variance in 2 reports Fresh Period to Appeal after Denial of MNT/MR.
- In People v. del Mundo (1996), the court Henceforth, this ―fresh period rule‖ shall also apply
allowed the presentation in a new trial of a to Rule 40 governing appeals from the Municipal
police report, not new, and which could Trial Courts to the Regional Trial Courts; Rule 42 on
have been discovered with due diligence, petitions for review from the Regional Trial Courts to
because the evidence contained in such was the Court of Appeals; Rule 43 on appeals from quasi-
at such variance with the health officer‘s judicial agencies to the Court of Appeals and Rule 45
report at trial, that its contents raised governing appeals by certiorari to the Supreme
doubts to the guilt of the accused. Court. (Neypes v. CA, 2005)

4. Effects of granting a new trial or

reconsideration [Rule 121, Sec. 6] XIV. APPEAL
1. Effect of an Appeal
In all cases: 2. Where to appeal
 The original judgment set aside or vacated; 3. How appeal taken
 A new judgment is rendered accordingly.
4. Effect of appeal by any of several accused
 Specific effects when granted upon different
grounds: 5. Grounds for dismissal of appeal

GROUND EFFECT COURT MAY 1. Effect of an Appeal

Errors of law or All proceedings Allow An appeal in a criminal proceeding throws the whole
irregularities and evidence introduction of case open for review and it becomes the duty of the
committed affected shall additional appellate court to correct an error as may be found
during the trial be set aside evidence in the in the appealed judgment, WON it is made the
and taken interest of subject of assignment of errors. [People v. Calayca
anew justice (1999)]

If error or 2. Where to appeal [Rule 122, Sec. 2]

irregularity
goes into the APPEAL IN FOR CASES DECIDED BY
jurisdiction,
The RTC MTC/MeTC/MCTC
the entire
The RTC or MTC/MeTC/MCTC (if it is
proceeding is
Sandiganbayan government duty-related - i.e.
void and must
filed under EO 1, 2, 4 and 14-A)
be set aside
The CA RTC (if it involves questions of fact
and of law)
 REMEDIAL LAW REVIEWER

APPEAL IN FOR CASES DECIDED BY 2) Criminal cases governed by the Revised Rules on
The SC RTC Summary Procedure.
56 a) If it involves questions of law
only  Offenses falling under the MTC/MCTC‘s
b) If it involves constitutionality Jurisdiction: [Salcedo v. Nobles-Bans (1985)]
or validity of any - Notwithstanding the uniform procedure
treaty/law/ordinance/EO/ rule, if the offense falls under the
regulation or the jurisdiction jurisdiction of the MTC/MCTC,
of the inferior court complaint/information may be filed directly
c) In criminal cases involving with said courts or with the City
offenses for which the penalty Prosecutor‘s Office.
imposed is death or life  Offenses falling under the MeTC‘s Jurisdiction:
imprisonment [Salcedo v. Nobles-Bans (1985)]
d) Other offenses, which, - In Metro Manila and other chartered cities,
although not so punished, criminal cases shall be commenced only by
arose out of the same information; thus, the complaint may be
occurrence or which may have filed only with the Office of the City
been committed by the Prosecutor
accused on the same occasion, - If the case is directly filed with the court,
as that giving rise to the more the case should not be dismissed. The court
serious offense should just refer it to the City Prosecutor
The SC CA or Sandiganbayan for the filing of the corresponding
information.
3. How appeal taken  Cases governed by the Revised Rules on
Summary Procedure:
[Rule 122, Sec. 6 and 9] a) Violations of traffic laws/ rules/
regulations;
b) Violations of the rental law;
When appeal to be taken
c) Violations of municipal/city ordinances;
Within 15 days from promulgation of the judgment
d) Violations of BP 22;
or from notice of the final order appealed from.
e) All other criminal cases where the penalty
is imprisonment not exceeding 6 months or
The period to appeal shall be suspended from the
a fine not exceeding P1,000 or both,
time a MNT or MR is filed until notice of the order
irrespective of other imposable penalties
overruling the motion has been served upon the
(accessory or otherwise) or of the civil
accused or his counsel.
liability arising from it.
  However, in offenses involving damage to
Transmission of record to RTC property through criminal negligence where
Within 5 days from perfection of the appeal, the imposable fine does not exceed P 10,000, the
COC shall transmit the original record to the Uniform Procedure Rule shall govern (i.e. it is
appropriate RTC. not governed by Revised Rules on Summary
 Procedure).
Notification of parties  Revised Rules on Summary Procedure also does
Upon receipt of the complete record, TSN and not apply to criminal cases where the offense
evidence of the case, the RTC COC shall notify the charged is necessarily related to another
parties of such fact. criminal case subject to the ordinary procedure.

Submission of memoranda/briefs The Revised Rules on Summary
Within 15 days from receipt of said notice, the
Procedure
parties may submit memoranda/briefs, or may be
required by the RTC to do so.
I. Commencement of action [Sec. 11]

Decision  The filing of the criminal case shall be either by
After submission of such memoranda/briefs or upon complaint or by information.
the expiration of the period to file the same, the - However, in Metropolitan Manila and in
RTC shall decide the case on the basis of the entire chartered cities, commencement shall be
record of the case and of such memoranda/briefs as only be by information.
may have been filed. Exception: When the offense cannot be
prosecuted de oficio.
[Rule 123, Sec. 1]  The complaint/information shall be
General rule: The procedure to be observed in the accompanied by the affidavits of the complaint
MeTC/MTC/MCTC shall be the same as that in the and of his witnesses.
RTC. - No. of copies = [No. of accused + 2 copies
for the court‘s files]
Exceptions: - If the required no. of copies is not complied
1) Where a particular provision applies only to with within 5 days from date of filing, the
either of said courts; case may be dismissed.
 REMEDIAL LAW REVIEWER

(2) Plea bargaining;

II. Referral to Lupon [Sec. 18] - No admission by the accused shall be
used against him unless reduced to
 If the case requires referral to the Lupong writing and signed by the accused and 57
Tagapamayapa under PD 1508 and this is not his counsel.
complied with, it shall be dismissed without (3) Other matters to clarify the issues and to
prejudice. The case may be revived only after ensure a speedy disposition of the case.
compliance with the requirement.
 Exception: Criminal cases of warrantless arrest. VII. Trial [Sec. 15]

III. Court’s duty [Sec. 12]  The submitted affidavits shall constitute the
direct testimonies of the witnesses/affiants.
 If commenced by complaint: They shall be subject to cross, re-direct and re-
- Based on the complaint/ affidavits/ cross examinations.
evidence, the court may dismiss the case  If the affiant fails to testify, his affidavit will
outright for being patently without not be considered as competent evidence for
basis/merit and order the release of the the party presenting his affidavit. However, the
accused (if in custody). adverse party may utilize his affidavit for any
 If commenced by information or if not dismissed admissible purpose.
according to #1:  A witness cannot testify unless his affidavit was
- The court shall order the accused to submit previously submitted to the court according to
his counter-affidavit and the affidavits of Sec. 12.
his witnesses as well as any evidence on his - Exception: On rebuttal or sur-rebuttal.
behalf (with copies served on the  If a party wishes to present additional
complainant/prosecutor) not later than 10 affidavits/counter-affidavits, he should so
days from receipt of order. manifest (and his purpose) during the
- The prosecution may file reply affidavits preliminary conference.
within 10 days after receipt of the counter-  If the court allows the additional
affidavits. affidavits/counter-affidavits, they shall be
submitted to the court and served on the
IV. Prohibited pleadings and motions [Sec. 19] adverse party within 3 days from the
termination of the preliminary conference.
(1) MTD;  If it is the prosecution who submits additional
 Exception: On grounds of either: affidavits, the defense may file counter-
a) LOJ over subject matter; affidavits thereto (copy furnished the
b) Failure to refer to Lupon. prosecution) within 3 days from service.
(2) Motion for bill of particulars;
(3) MNT/MR or motion for re-opening of trial; VIII.Arrest of the accused [Sec. 16]
(4) Petition for relief from judgment;
(5) Motion for extension to file;  The court shall not order the arrest of the
(6) Memoranda; accused.
(7) Petition for certiorari/mandamus/prohibition - Exception: For failure to appear whenever
against any interlocutory order; required.
(8) Motion to declare defendant in default;  Release of the accused shall be by bail or on
(9) Dilatory motions for postponement; recognizance.
(10) Reply;
(11) 3rd-party complaints; IX. Judgment [Sec. 17]
(12) Interventions. If trial was conducted, the court shall promulgate
judgment within 30 days after termination of trial.
V. Arraignment [Sec. 13]
X. Appeal [Sec. 21]
 If the court finds no cause/ground to hold the Judgment may be appealed to RTC per Sec. 22, BP
accused for trial, it shall order the dismissal of 129.
the case; otherwise, the court shall set the case
for arraignment and trial. Procedure in the CA
 If the accused is in custody for the crime
charged, he shall be immediately arraigned. If a. Parties and title [Rule 124, Sec. 1]
he enters a plea of guilty, he shall forthwith be
sentenced.  In all criminal cases appealed to the CA:
- APPELLANT – The party appealing;
VI. Preliminary conference [Sec. 14] - APPELLEE – The party adverse to the
appellant.
 Before conducting the trial, the court shall call  The title of the case shall remain as it was in
the parties to a preliminary conference for: the court of origin (i.e. People v. John Doe).
(1) Stipulation of facts;
- Refusal/failure to stipulate shall not
prejudice the accused.
 REMEDIAL LAW REVIEWER

b. Appointment of counsel de oficio [Rule 124, [Rule 44, Sec. 13]

Sec. 2] a) SUBJECT INDEX – Digest of the arguments and
58 page references, and a table of: (1) cases
The counsel de oficio cannot dismiss the appeal and alphabetically arranged; and (2) books and
[US v. Lafuente (1918)] neither can he admit findings statutes cited, with references to the pages
of fact by the TC without the consent of his client where they are cited.
[People v. Isaac (1952)]. b) ASSIGNMENT OF ERRORS – Errors urged
separately, distinctly and concisely; stated
c. Brief for appellant [Rule 124, Sec. 3] without repetition and numbered consecutively.
c) STATEMENT OF THE CASE – Clear and concise
 Appellant shall file 7 copies of his brief with the statement of the nature of the action, a
clerk of court, accompanied by proof of service summary of the proceedings, the appealed court
of 2 copies on the appellee. rulings and orders, the nature of the judgment
 It shall be filed within 30 days from receipt by and any other matters necessary to an
the appellant (his counsel) of the CA clerk of understanding of the nature of the controversy,
court‘s notice that the evidence is already with page references to the record.
attached to the record. d) STATEMENT OF FACTS – Clear and concise
 Purpose: To show grounds for reversal of narrative statement of the facts admitted by
judgment and to point out the both parties and of those in controversy,
errors/irregularities in the lower court‘s together with the substance of the related
proceedings. proof, in sufficient detail to make it clearly
intelligible and with page references to the
d. Brief for appellee [Rule 124, Sec. 4] record.
e) ISSUES – Clear and concise statement of issues of
 Appellee shall file 7 copies of his brief with the fact/law submitted to the court for its
clerk of court, accompanied by proof of service judgment.
of 2 copies on the appellant. f) ARGUMENTS – Appellant‘s arguments on each
 It shall be filed within 30 days from receipt of assignment of error, with page references to the
the appellant‘s brief. record. The authorities relied upon shall be
 Purpose: To meet/refute the appellant‘s cited by the page of the report at which the
submissions. case begins and the page of the report on which
the citation is found.
e. Reply to appelle’s brief [Rule 124, Sec. 4] g) RELIEF – Specification of the order/judgment
which the appellant seeks. In cases not brought
 Appellant may (i.e. optional) file a reply brief up by record on appeal, the appellant‘s brief
covering matters raised in the appellee‘s brief shall contain (as an appendix) a copy of the
but not in the brief of the appellant. judgment or final order appealed from.
 It must be filed within 20 days from receipt of h) Attachment: Certified true copy of the decision
the appellee‘s brief. or final order appealed from. [Rule 124, Sec. 7]

f. Extension of time for filing briefs [Rule 124, 2. Appellee’s brief:

Sec. 5] [Rule 44, Sec. 14]
a) Subject index.
 General rule: Extension of time for the filing of b) STATEMENT OF FACTS – Statement that appellee
briefs is not allowed accepts the statement of facts in the
- Exception: for good and sufficient cause appellant‘s brief; or COUNTER-STATEMENT OF
 It is sought through a motion for extension, FACTS – Points out the
which must be filed before the expiration of the insufficiencies/inaccuracies appellee believes to
time sought to be extended. exist in the appellant‘s statement of facts, with
 Grant of extension rests on the court‘s references to the supporting pages of the
discretion. [Piedad v. Batuyong (1974)] record. Matters in the appellant‘s statement of
 Court may grant as many extensions as may be facts should not be repeated.
asked. [Gregorio v. CA (1976) ] c) ARGUMENTS – Appellee‘s arguments on each
assignment of error, with page references to the
g. Form of briefs [Rule 124, Sec. 6] record. The authorities relied upon shall be
cited by the page of the report at which the
 Briefs shall be printed/encoded/ typewritten, in case begins and the page of the report on which
double space, on legal size good quality the citation is found.
unglazed paper, 330mm in length by 216mm in
width. i. Dismissal of appeal for abandonment or failure
 Mimeographed copies are not allowed. to prosecute [Rule 124, Sec. 8]

h. Contents of brief Grounds:

The briefs in criminal cases shall have the same  Appellant fails to file his brief within the
contents as provided in Rule 44, Sec. 13-14. [Rule prescribed time;
124, Sec. 7] Exception: Where the appellant is
represented by a counsel de oficio.
1. Appellant’s brief:
 REMEDIAL LAW REVIEWER

- If failure to file brief on time is the ground,

appellant must be given notice to give him Reversal / modification of judgment on appeal
opportunity to reason out why his appeal [Rule 124, Sec. 10]
should not be dismissed.  General rule: No judgment shall be 59
o However, dismissal is proper despite lack reversed/modified.
of notice: - Exception: When the CA, after an
a) If appellant has filed a MFR or motion examination of the record and of the
to set aside the order dismissing the parties‘ evidence, is of the opinion that
appeal, in which he stated the reason error was committed and such error
why he failed to file his brief on time injuriously affected the appellant‘s
and the appellate court denied the substantial rights.
motion after considering reason.  When it involves credibility of witnesses,
[Baradi v. People (1948)] appellate courts will not generally disturb the
b) If appeal was dismissed without notice TC‘s findings.
but appellant took no steps to have  Rationale: The TC is in a better position to
the appeal reinstated. Such action decide the question, having seen and heard the
amounts to abandonment. [Salvador witnesses themselves. [People v. Cabiling
v. Reyes (1949)] (1976)]
 If the appellant escapes from
prison/confinement, jumps bail or flees to a Scope of CA’s judgment
foreign country during the pendency of the [Rule 124, Sec. 11]
appeal. The CA may:
- Rationale: Escape of appellant during the 1) Reverse/affirm/modify the judgment;
pendency of the appeal implies a 2) Increase/reduce the penalty imposed by the TC;
withdrawal of the appeal. Hence, judgment 3) Remand the case to the RTC for new trial or
of the TC becomes final. [US v. Ravidas retrial;
(1905)] 4) Dismiss the case.
- Likewise, when accused flees after the case - When the accused appeals from the
has been submitted for decision, he is sentence of the TC, he waives the
deemed to have waived his right to appeal. constitutional safeguard against double
[People v. Ang Gioc (1941)] jeopardy and throws the whole case open to
o Exception: Appeal will not be dismissed the review of the appellate court, which is
despite escape: then called upon to render such judgment
a) In one exceptional case, the appellant as law and justice dictate, WON favorable
took advantage of a mass jailbreak to the accused and WON made the subject
(because, according to his counsel de of assignment of errors. [Ko Bu Lin v. CA
oficio he was innocent and wanted to (1982)]
elude an unjust punishment) but was
recaptured 2 hours after, the SC said CA’s power to receive evidence
circumstances were not sufficient to [Rule 124, Sec. 12]
justify dismissal of the appeal.  The CA has power to try cases and conduct
[People v. Valencia (1949)] hearings, receive evidence and perform any and
b) If there was absolutely no evidence all acts necessary to resolve factual issues in
against the accused as found by the cases:
appellate court, he should be 1) Falling within its original jurisdiction;
acquitted in order to prevent an 2) Involving claims for damages arising from
injustice by technicalities. [People v. provisional remedies;
Buenaventura (1994)] 3) Where the court grants a new trial based
c) In case of automatic review. [People v. only on the ground of newly-discovered
Cornelio (1971)] evidence.
 CA may dismiss the appeal upon appellee‘s  CA‘s trials and hearings must be continuous and
motion or motu proprio. completed within 3 months, unless extended by
the Chief Justice.
Prompt disposition of appeal
[Rule 124, Sec. 9] Quorum in the CA
 Appeals of accused who are under detention are [Sec. 11, BP 129]
given precedence in their disposition over other  3 CA Justices constitute a quorum for the
appeals. sessions of a division.
 The CA shall hear and decide the appeal at the  The unanimous vote of the 3 Justices of a
earliest practicable time with due regard to the division is necessary for the pronouncement of a
parties‘ rights. judgment or final resolution
 The accused need not be present in court during  Decision is reached through a consultation
the hearing of the appeal. before the writing of the opinion by a member
- Proceedings on appeal will not be stayed in of the division.
a criminal case on account of the absence  If there is lack of unanimity, the Presiding
of the accused as his presence is not Justice shall direct the CA raffle committee to
necessary at said hearing. [US v. Lewis] designate 2 additional Justices to sit temporarily
 REMEDIAL LAW REVIEWER

with them. They shall then form a special  The mittimus shall be stayed during the MFR‘s
division of 5 members. pendency.
60 - The concurrence of a majority of that - General rule: No party shall be allowed a
special division is necessary for the 2nd MFR of a judgment or final order. [Sec.
pronouncement of a judgment or final 11, BP 129]
resolution. - Exception: Where the 1st MFR resulted in a
- Designation of the additional Justices shall reversal or substantial modification of the
be made strictly by raffle and rotation original decision or final resolution.
among all other CA Justices. In this case, the party adversely
affected by the reversal/modification may
Certification or appeal of cases to the SC himself file a MFR of the latest judgment of
[Rule 124, Sec. 13] the court, because with respect to him, said
1) If the CA finds that death penalty should be motion is a first pleading of that nature.
imposed:
 AUTOMATIC REVIEW – CA shall render Applicable civil procedure rules
judgment but refrain from making an entry [Rule 124, Sec. 18]
of judgment. It shall then certify the case Provisions of Rules 42, 44-46 and 48-56 relating to
and elevate its entire record to the SC for procedure in the CA and the SC in original and
review. The accused does not have to do appealed civil cases, shall be applied to criminal
anything. cases insofar as they are applicable and not
 Note: Death penalty has been abolished. inconsistent with the provision of this Rule.
2) If the judgment also imposes a lesser penalty for
offenses committed on the same occasion or Procedure in the SC
which arose from the same occurrence that gave
rise to the more severe offense for which death a. Uniform procedure
is imposed, and the accused appeals: [Rule 125, Sec. 1]
 The appeal shall be automatically included General rule: The procedure in the SC in original
in the case certified for review in the SC and in appealed cases shall be the same as in the
3) If the CA imposes reclusion perpetua, life CA.
imprisonment or a lesser penalty:
 It shall render and enter judgment imposing Exception: If the Constitution or law provides
such penalty. otherwise.
 Appeal here is not automatic. The accused
has to file a notice of appeal with the CA. b. What the SC may do on review
 In a criminal case, an appeal to the SC throws
Judgment transmitted and filed in TC open the whole case for review and it becomes
 When the CA‘s entry of judgment is issued, a its duty to correct such errors as may be found
certified true copy of the judgment shall be in the judgment appealed from, WON they were
attached to the original record. These shall be assigned as errors. [People v. Olfindo (1924)]
remanded to the clerk of the court from which  It may examine the judgment as to the
the appeal was taken. [Rule 124, Sec. 17] qualification of the crime and the degree of the
 This copy of the entry serves as the formal penalty imposed. [Macali v. Revilla (1926)]
notice to the court from which the appeal was  It may also assess and award civil indemnity.
taken of the disposition of the case in the [Quemel v. CA (1946)]
appellate court, so that the judgment may be
executed and/or placed or noted in the proper c. Ways by which a case may reach the SC
file. i. Automatic review
 It is not a matter of right on the part of the
MNT during the pendency of appeal in the CA accused, but a matter of law.
[Rule 124, Sec. 14]  Hence, the escape of the accused does not
 Appellant may file MNT on the ground of newly relieve the SC of the burden of
discovered evidence material to his defense any automatically reviewing the case. [US v.
time: Laguna (1910)]
- After the appeal from the lower court has  When available:
been perfected, but - When the RTC judgment upon the
- Before the CA judgment convicting him accused imposes death penalty. [Rule
becomes final. 122, Sec. 10]
 The motion shall conform to Rule 121, Sec. 4. - When the RTC decision is appealed to
 If the CA grants a MNT, it may either: [Rule 124, CA and the latter is of the opinion that
Sec. 15] the penalty imposed should be death or
1) Conduct the hearing and receive evidence; life imprisonment. CA judgment is
2) Refer the trial to the court of origin. imposed but no entry of judgment is
made; instead, the case is certified and
MFR of CA judgment the entire record is elevated to the SC
[Rule 124, Sec. 16] for review. [Rule 124, Sec. 13]
 MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party.
 REMEDIAL LAW REVIEWER

ii. Ordinary appeal 3. Where the orders complained of were

When available: found to be completely null and void.
 When the penalty imposed by the RTC 4. Where appeal was not considered as
is life imprisonment, decision is the appropriate remedy. 61
appealable directly to the SC by filing a
notice of appeal with the RTC. [Rule d. Failure to specify appellate court
122, Sec. 3] Failure of appellant to specify in his notice of appeal
 When an accused was charged with 2 or the court to which the appeal is being made is not
more offenses committed on the same fatal. [RA 296]
occasion or arising out of the same
occurrence, and in one of those 2 e. Erroneous choice / mode of appeal
cases, he was sentenced to life  In the case of People v. Resuello (1969), the
imprisonment or death penalty, the contention of the adverse party that the
appeal with respect to the others, ordinary appeal filed by appellant shall be
though punished with a lesser penalty, dismissed because the proper remedy is petition
is to the SC. [Rule 122, Sec. 3] for review on certiorari (only questions of law
 When the penalty of reclusion perpetua were involved) was rejected.
or death is imposed on some of the  The SC said that in cases similarly situated, and
defendants and a lesser penalty on the as long as the steps formally required for the
other co-defendants, on account of perfection of an appeal were taken in due time,
their varying degree of participation in appeal may be given due course, without
the commission of the offense or due to prejudice to requiring the appellant to file the
the presence of modifying necessary petition for review on certiorari which
circumstances, in which case the is also a form of appeal.
decision on the non-life convicts is
directly appealable to the SC. [People f. Review of CA decisions
v. Carino]  The procedure for the review by the SC of CA
 In these cases, the SC reviews not only decisions on criminal shall be the same as in
errors of law but also the findings of civil cases. [Rule 125, Sec. 2]
fact by the TC.  General rule: The SC‘s appellate jurisdiction in
cases brought to it from the CA is limited to
iii. Petition for review on certiorari reviewing and revising the errors of law incurred
 When available: by the latter.
- When constitutionality/validity of any - The CA‘s findings of fact are final.
treaty, executive agreement, law, - If an appeal in the SC involves questions of
ordinance or executive order or facts, the SC has no jurisdiction and should
regulation is in question. dismiss appeal. [Guico v. Mayuga (1963)]
o When validity of law is questioned - Exception: [Vargas v. CA; Napolis v. CA
by an accused convicted under it (1972)]
by the TC, the SC cannot review o When the conclusion is a finding founded
the evidence or pass upon any entirely on
other question of law which may speculations/surmises/conjectures;
appear on the record, but will only o When the inference made is manifestly
confine itself to the question of mistaken/absurd/impossible;
the in/validity of that law. o When there is GAD;
[Trinidad v. Sweeney (1904)] o When the judgment is based on a
- When the jurisdiction of any inferior misapprehension of facts;
court is in issue. o When the findings of facts are conflicting;
- When only an error or question of law is o When the CA, in making its findings, went
involved. beyond the issues of the case and the
- On decisions of the CA and the same are contrary to the admissions of
Sandiganbayan. both appellant and appellee.
o As a rule, review here is limited to
errors of law. g. Decisions if opinion is equally divided
 General rule: Certiorari is used to correct [Rule 125, Sec. 3]
only errors of jurisdiction and not errors of  When the SC en banc is equally divided in
judgment of an inferior court. For errors of opinion or the necessary majority cannot be had
judgment, ordinary appeal is available. on WON to acquit the appellant, the case shall
again be deliberated upon.
Exception: Cases where certiorari is - If no decision is reached after re-
granted despite existence of the remedy of deliberation, the lower court‘s judgment of
appeal: conviction shall be reversed and the
1. Where public welfare and advancement accused is acquitted.
of public policy so dictate.  If case is decided by a division of the SC whose
2. Where the broader interests of justice members are equally divided, the case shall be
so require. heard and decided by the SC en banc.
 REMEDIAL LAW REVIEWER

h. Constitutional provisions on SC composition acquittal, applies even though accused did not
[Art. 8, Sec. 4, Consti] raise question of jeopardy. [People v. Ferrer
62  SC Composition: 1 Chief Justice + 14 Associate (1956)]
Justices.
 SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
 No doctrine or principle of law laid down by the
XV. SEARCH AND SEIZURE
SC in a decision rendered en banc or in division 1. Nature of search warrant
may be modified/reversed. 2. Distinguish from warrant of arrest
3. Application for search warrant, where
4. Effect of appeal by any of several filed
accused [Rule 122, Sec. 11] 4. Probable Cause
5. Personal examination by judge of the
 General rule: An appeal taken by one or more applicant and witnesses
of several accused shall not affect those who did 6. Particularity of place to be searched and
not appeal. things to be seized
- As to the appealing party, the execution of 7. Personal property to be seized
judgment appealed from is stayed upon the
8. Exceptions to search warrant
perfection of the appeal.
- As to the co-accused who did not appeal, requirement
the judgment of the TC insofar as it relates a. Search incident to lawful arrest
to him becomes final and the appellate b. Consented search
court has no power to interfere with it. c. Search of moving vehicle
[Salvatierra v. CA (1996)] d. Checkpoints; body checks in airport
e. Plain view situation
Exception: Insofar as the judgment of the f. Stop and frisk situation
appellate court is favorable and applicable to g. Enforcement of custom laws
those who did not appeal or who withdrew his
9. Remedies from unlawful search and
appeal. [People v. Escano]
seizure
 The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of 1. Nature of search warrant
the judgment or order appealed from.
Concept
5. Grounds for dismissal of appeal
Definition
When appeal by the people will not lie It is an order in writing; issued in the name of the
 The People/State cannot appeal when it will put People of the Philippines; signed by a judge; and
the accused in double jeopardy. The directed to a peace officer, commanding him to
constitutional mandate against double jeopardy search for personal property described in the
prohibits not only a subsequent prosecution in a warrant and bring it before the court. (Rule 126,
new and independent cause but extends also to Sec. 1)
appeal in the same case by the prosecution
after jeopardy had attached. [Republic v. CA] If it is without the judge‘s signature: it is fatally
 The prosecution cannot appeal from a judgment defective.
of acquittal
- Rationale: A verdict of that nature is Nature of a Search Warrant
immediately final and to try on the merits, A search warrant (SW) is in the nature of a criminal
even in an appellate court, places the process akin to a writ of discovery, employed by the
accused in double jeopardy. [Central Bank state to procure relevant evidence of a crime.
v. CA (1989)] [Malaloan v. CA (1994)]
 Dismissal of case upon filing of demurrer by the
accused was held to be final even though based  A search warrant is in the nature of a criminal
on erroneous interpretation of the law. Hence, process, and may be invoked only in furtherance
an appeal therefrom by the prosecution would of public prosecutions;
constitute double jeopardy. [US v. Kilayko  Search warrants have no relation to civil process
(1916)] or trials; and
 Where the TC has jurisdiction but mistakenly  They are not available to individuals in the
dismisses the complaint/information on the course of civil proceedings;
ground of lack of it, the order of dismissal is  It is not for the maintenance of any mere
unappealable. [People v. Duran (1960)] private right;
 An appeal by the People will not lie if the  It is interlocutory in character – it leaves
purpose is to correct the penalty imposed by the something more to be done, which is the
trial court or to include in a judgment a penalty determination of the guilt of the accused.
erroneously omitted. [People v. Paet (1956)]
 The preclusion against appeal by the State from
judgments or final orders having the effect of
 REMEDIAL LAW REVIEWER

character of the articles procured [Rodriguez v.

Constitutional Safeguard against Unreasonable Villamiel (1937)]
Search and Seizures
Constitutional Protection is Against Public 63
 Rule 126 is an implementation of Art. III, Sec. 2 Officers’ Acts, Not Private Persons
of the 1987 Constitution.
- The right of the people to be secure in their People v. Marti (1991); also People v. Bongcarawan
persons / houses / papers / effects against (2002): Search and seizure clauses are restraints
unreasonable searches and seizures of upon the government and its agents, not upon
whatever nature or for any purpose shall private individuals.
not be violated.
- No search warrant or warrant of arrest In the case at bar, the evidence was primarily
shall issue except upon probable cause to discovered by a private person, acting in a private
be determined personally by the judge after capacity and without the intervention and
the examination under oath/affirmation of participation of state authorities.
the complaint and the witness he may
produce, and particularly describing the The private person made an inspection as part of a
place to be searched, and the reasonable standard operating procedure / a
things/persons to be seized. (Art. III, Sec. precautionary measure before delivery of packages
2, 1987 Const.) to the Bureau of Customs. The mere presence of the
- The privacy of communication and NBI agents did not convert the reasonable search
correspondence shall be inviolable except into a warrantless search and seizure proscribed by
upon lawful order of the court, or when the constitution.
public safety/order requires otherwise, as
prescribed by law. (Art. III, Sec. 3, 1987 However, if the private person is acting upon orders
Const.) of government officials, the principle of agency
applies, because in fact such private person is acting
 Exclusionary rule: Any evidence obtained in in the interest of government, and is therefore
violation of this or the preceding section shall subject to the prohibition against unreasonable
be inadmissible for any purpose in any searches and seizures.
proceeding. (Art. III, Sec. 3, Par. 2, 1987
Const.) General rule: Search of property is unreasonable
unless it has been authorized by a valid search
 Doctrine of attenuation: Despite the illegality warrant.
in obtaining evidence, such evidence may be
admissible if the connection between the Exceptions: Valid warrantless searches.
evidence and the illegal method is sufficiently
remote or attenuated so as to dissipitate the 2. Distinguish from warrant of arrest
taint [Wong Sun v. US (1963)]
Search Warrant Warrant of Arrest
 Rationale Will be issued only upon The witness must be
- What is sought to be guarded is man‘s probable cause in examined personally by
prerogative to choose who is allowed entry
connection with one the judge.
to his residence. His privacy must not be
specific offense to be
disturbed by the government, except in
determined by the judge
cases of overriding social need, and then
or such other responsible
only under the stringent procedural officers authorized by
safeguards. [Villanueva v. Querubin (1972)] law.
- A man‘s house is his castle. However, he
Examination under oath Examination must be
may not use his castle as a citadel for
or affirmation of the under oath.
aggression against his neighbors, nor can he
complaint and the
within its walls create such disorders as to
witnesses he may
affect their peace. [US v. Vallejo (1908)]
produce.
It must particularly Examination must be
 This constitutional guarantee is NOT a blanket
describe the place to be reduced to writing in the
prohibition against ALL searches and seizures. It
searched and the things form of searching
operates only against ―unreasonable‖ searches
to be seized. questions and answers.
and seizures.
Generally served in the May be made at any time
day time, unless there of the day or night.
 What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely be a direction in the
a judicial question, determinable from a warrant that it may be
consideration of the circumstances involved, served at any time of the
including the purpose of the search, the day or night.
presence or absence of probable cause, the Valid for ten (10) days. Does not expire (No
manner in which the search and seizure was terminal life).
made, the place or thing searched, and the
 REMEDIAL LAW REVIEWER

3. Application for search warrant, be taken cognizance of and acted upon by any
judge of the court having jurisdiction of the
where filed place to be searched, but in such cases the
64
applicant shall certify and state the facts under
Application oath, to the satisfaction of the judge, and its
issuance is urgent.
Where filed (Rule 126, Sec. 2)  Any judge acting on such application shall
 Any court within whose territorial jurisdiction immediately and without delay personally
the crime was committed. conduct the examination of the applicant and
 For compelling reasons stated in the his witnesses to prevent the possible leakage of
application: information. He shall observe the procedures,
- If the place of the commission of the crime safeguards, and guidelines for the issuance of
is known, any court within the judicial search warrants provided for in this Court's
region where the crime was committed. Administrative Circular No. 13, dated October 1,
- Any court within the judicial region where 1985.
the warrant shall be enforced.
 However, if the criminal action has already been A.M. No. 99-10-09-SC (Resolution Clarifying the
filed, the application shall only be made in the Guidelines on the Application for and
court where the criminal action is pending. Enforceability of Search Warrants)
 The following are authorized to act on all
Exception: applications for search warrants involving
Malaloan v. CA (1994) subject to Rule 126, Sec. 1 heinous crimes, illegal gambling, dangerous
 If a case has not yet been filed, it may be filed drugs and illegal possession of firearms: The
in a court with a territorial jurisdiction other Executive Judge and Vice Executive Judges of
than that where the illegal articles sought to be the RTC of Manila and Quezon City filed by the
seized are located. PNP, NBI, the Presidential Anti-Organized Crime
 This is aside from the consideration that a Task Force (PAOC-TF) and the Reaction Against
criminal action may be filed in different venues Crime Task Force (REACT-TF) with the RTC of
under the rules for continuing crimes, or where Manila and QC.
different trial courts have concurrent original  The applications shall be personally endorsed by
jurisdiction over the same criminal offense. the Heads of said agencies, for the search of
 The ruling may be applicable: places to be particularly described therein, and
- When the crime is found to have been the seizure of property or things as prescribed in
committed in a particular place WITHIN the the Rules of Court, and to issue the warrants of
judicial region. arrest, if justified, which may be served in the
- Where a particular court, by reason of its places outside the territorial jurisdiction of said
territorial area, has jurisdiction. courts.
- And where prosecutor, who filed the  The authorized judges shall keep a special
complaint or information in said court, has docket book listing the details of the
territorial jurisdiction different from the applications and the results of the searches and
court within the same judicial region which seizures made pursuant to the warrants issued.
actually issued the warrant.  Although A.M. No. 99-10-09-SC provides a
personal endorsement of the application by the
Search guidelines under Circular No. 19, s. 1987 ―Heads‖ of the agencies mentioned, it was held
 All applications for search warrants relating to that nothing in this rule prohibits such heads
violations of: from delegating the ministerial duty of
- The Anti-Subversion Act; endorsing the application for search warrants to
- Crimes against public order as defined in their assistant heads, as long as it is not
the RPC; inconsistent with law (Admin. Code). [Marimla
- Illegal possession of firearms and/or v. People (2009)]
ammunition; and
- Violations of the Dangerous Drugs Act of Substance of application
1972, as amended,
shall no longer be raffled and shall immediately Requisites for issuing a search warrant
be taken cognizance of and acted upon by the A SW shall not issue except:
Executive Judge of the Regional Trial Court, a. Upon probable cause in connection with one
Metropolitan Trial Court, and Municipal Trial specific offense;
Court under whose jurisdiction the place to be b. To be determined personally by the judge;
searched is located. c. After examination under oath or affirmation of
 In the absence of the Executive Judge, the Vice- the complainant and the witness he may
Executive Judge shall take cognizance of and produce;
personally act on the same. In the absence of d. Particularly describing the place to be searched
the Executive Judge or Vice-Executive Judge, and the things to be seized which may be
the application may be taken cognizance of and anywhere in the Philippines. (Rule 126, Sec. 4)
acted upon by any judge of the Court where the
application is filed.  Absence of the requisites will cause the
 Applications filed after office hours, during nullification of the SW.
Saturdays, Sundays and holidays, shall likewise
 REMEDIAL LAW REVIEWER

 If the judge is satisfied of the existence of facts

upon which the application is based or that Service of search warrant
there is probable cause (PC) to believe that they
exist, he shall issue the SW, which must be Right to break door or window to effect search 65
substantially in the form prescribed by the  The officer, if refused admittance to the place
Rules. (Rule 126, Sec. 6) of directed search after giving notice of his
 In issuing or not issuing SWs, judges act purpose and authority, may break open any
according to the evidence presented to them, outer or inner door or window of a house or any
and orders of the judge on the matter are not part of a house or anything therein to execute
final and do not constitute res judicata. [Cruz v. the warrant to liberate himself or any person
Dinglasan (1949)] lawfully aiding him when unlawfully detained
 The denial of a search warrant on the therein. (Rule 126, Sec. 7)
insufficiency of the affidavit and deposition is
not a bar to further proceedings, nor is the Knock and announce principle: Generally,
issuance of the warrant and its subsequent officers executing a search must do the
discharge res judicata as to the right to the following acts:
warrant. [Cruz, supra] - Announce their presence;
 Courts have declared invalid SWs that did not - Identify themselves to the accused and to
comply with the requisites found in the 1987 the persons who rightfully have possession
Const. (and restated in the rules). [Lim v. de of the premises to be searched;
Leon (1975)] - Show to them the search warrant; and
 A court‘s disregard for the requirements - Explain the warrant in a language or dialect
constitutes grave abuse of discretion which known and understood by them.
may be remedied by a petition for certiorari  When unannounced intrusion is permissible:
under Rule 65. - Person in the premises refuses to open it
upon demand;
Issuance and form of search warrant - Person in the premises already knew of the
 It is an order in writing; issued in the name of identity and authority of the officers;
the People of the Philippines; signed by a judge; - When the officers have an honest belief
and directed to a peace officer, commanding that there is an imminent danger to life and
him to search for personal property described in limb;
the warrant and bring it before the court. (Rule - When those in the premises, aware of the
126, Sec. 1) presence of someone outside, are then
 A search warrant shall not issue except upon engaged in activities which justifies the
probable cause in connection with one specific officers to believe that an escape or the
offense to be determined personally by the destruction of evidence is imminent.
judge after examination under oath or
affirmation of the complainant and the witness Search of house, room, or premise, to be made in
he may produce, and particularly describing the presence of two witnesses
place to be searched and the things to be seized No search of a house, room, or any other premises
which may be anywhere in the Philippines. shall be made except in the presence of the lawful
(Rule 126, Sec. 4) occupant thereof or any member of his family or in
 If the judge is satisfied of the existence of facts the absence of the latter, two witnesses of sufficient
upon which the application is based or that age and discretion residing in the same locality.
there is probable cause to believe that they (Rule 126, Sec. 8)
exist, he shall issue the warrant, which must be
substantially in the form prescribed by these Time of making search
Rules. (Rule 126, Sec. 6)  The warrant must direct that it be served in the
 SW must be in writing and contain: day time, unless the affidavit asserts that the
- Name of person against whom it is directed; property is on the person or in the place ordered
- Offense for which it was issued; to be searched, in which case a direction may
- The place to be searched and be inserted that it be served at any time of the
- The description of the specific things to be day or night. (Rule 126, Sec. 9)
seized;  A SW violates Rule 126, Sec. 9 if the time for
- A directive to law enforcement officers to making the search is left blank, thus enabling
search and seize; the officers to conduct the search in the evening
- And for them to bring in court the things of the appointed search, causing untold
seized; conveniences to the person searched. [Asian
- Signature of the judge issuing it. Surety v. Herrera (1973)]
 Where a search is to be made during the night
Validity of search warrant time, the authority for executing the same at
Period of validity: 10 days from its date. Thereafter, that time should appear in the directive on the
it shall be void. (Rule 126, Sec. 10) face of the SW. [Asian Surety, supra]

Lifetime of SW ends when a return has already been

made. [Mustang Lumber v. CA (1996)]
 REMEDIAL LAW REVIEWER

Post-service Comprehensive Dangerous Drugs Act of 2002, the

Intellectual Property Code, the Anti-Money
66 Receipt of property seized Laundering Act of 2001, the Tariff and Customs
Code, as amended, and other relevant laws that may
How receipt is given (Rule 126, Sec. 11) hereafter be enacted by Congress, and included
If lawful The officer seizing the property under herein by the Supreme Court.
occupant the SW must give a detailed receipt for
was the same to the lawful occupant of the The applications shall be endorsed by the heads of
present premises in whose presence the search such agencies or their respective duly authorized
and seizure were made. officials and shall particularly describe therein the
If he was The officer seizing the property under places to be searched and/or the property or things
not the SW must, in the presence of at to be seized as prescribed in the Rules of Court. The
present least 2 witnesses of sufficient age and Executive Judges and Vice-Executive Judges
discretion residing in the same locality, concerned shall issue the warrants, if justified,
leave a receipt in the place in which he which may be served outside the territorial
found the seized property. jurisdiction of the said courts.

Delivery of property and inventory thereof to The Executive Judges and the authorized Judges
court (Rule 126, Sec. 12) shall keep a special docket book listing names of
 The officer must forthwith deliver the property Judges to whom the applications are assigned, the
seized to the judge who issued the warrant, details of the applications and the results of the
together with a true inventory thereof duly searches and seizures made pursuant to the warrants
verified under oath. issued.
 Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the This Section shall be an exception to Section 2 of
return has been made, and if none, shall Rule 126 of the Rules of Court. (Emphasis supplied.)
summon the person to whom the warrant was
issued and require him to explain why no return 4. Probable Cause
was made.
 If the return has been made, the judge shall Generally
ascertain whether Sec. 11 of Rule 126 has been  Issued upon probable cause
complied with and shall require that the Probable cause: Such facts and circumstances
property seized be delivered to him. The judge which would lead a reasonably discreet and
shall see to it that delivery has been complied prudent man to believe that an offense has been
with. committed, and that objects sought in
 The return on the search warrant shall be filed connection with the offense are in the place
and kept by the custodian of the log book on sought to be searched.
search warrants who shall enter therein the - This probable cause must be shown to be
date of the return, the result, and other actions within the personal knowledge of the
of the judge. complainant or the witnesses he may
 A violation of this section shall constitute produce and not based on mere hearsay.
contempt of court. - The probable cause must refer only to one
specific offense. [Roan v. Gonzales (1986)]
 Goods seized remain under the court‘s custody - A probable cause to arrest does not
and control until the institution of the necessarily involve a probable cause to
appropriate criminal action with the proper search and vice-versa.
court. [Tenorio v. CA (2003)]
Probable cause justifying warrantless arrest and
RE: REQUEST OF POLICE DIRECTOR GENERAL warrantless search
AVELINO I. RAZON FOR AUTHORITY TO DELEGATE This implies probability of guilt and requires more
THE ENDORSEMENT OF APPLICATION FOR SEARCH than bare suspicion but less than evidence which
WARRANT would justify conviction. It is not determined by a
fixed formula but is resolved according to the facts
A.M. No. 08-4-4-SC of each case.

SEC. 12. Issuance of search warrants in special 5. Personal examination by judge of

criminal cases by the RTCs of Manila and Quezon
City. – The Executive Judges and, whenever they are the applicant and witnesses
on official leave of absence or are not physically
present in the station, the Vice-Executive Judges of Aside from the requirements mandated by Rule 126,
the RTCs of Manila and Quezon City shall have Sec. 4, the rule requires the judge to comply with a
authority to act on applications filed by the National specific procedure in the conduct of the examination
Bureau of Investigation (NBI), the Philippine National of the complainant and the witnesses he may
Police (PNP) and the Anti-Crime Task Force (ACTAF), produce. The required procedure involves the
for search warrants involving heinous crimes, illegal following:
gambling, illegal possession of firearms and  The examination must be personally conducted
ammunitions as well as violations of the by the judge;
 REMEDIAL LAW REVIEWER

 The examination must be in the form of listening to the stenographer‘s reading of her
searching questions and answers; notes, and administering the oath to
 The complainant and the witnesses shall be complainant and his witnesses. Thus, it cannot
examined on those facts personally known to be said that the judge personally conducted the 67
them; examination required. [Bache v. Ruiz (1971)]
 The statements must be in writing and under - In the reading of the transcribed notes of
oath; and the deposition of the applicant and his
 The sworn statements of the complainant and witnesses taken by the clerk of court, the
the witnesses, together with the affidavits judge was not able to observe the
submitted, shall be attached to the record. deponent‘s demeanor nor to propound
(Rule 126, Sec. 5) initial and follow-up questions. [Bache,
supra]
Determined by judge himself  Where the judge issuing the SW acted solely on
the basis of the affidavits of the complainant
SEARCHING QUESTIONS AND ANSWERS: and his witnesses, which were sworn to before
 Such questions which have the tendency to show another judge, without personally asking the
the commission of a crime and the perpetrator witnesses questions. [Doce v. CFI (1968)]
thereof. [Luna v. Plaza (1968)]
 In search cases, the application must be Instances of valid examination
supported by substantial evidence: that the The validity of the SW and the affidavits is not
items sought are in fact seizable by virtue of impaired by the fact that they are pre-typewritten
being connected with criminal activity and the by law enforcement agents, as long as they are
items will be found in the place to be searched. subscribed and sworn to before the judge.
 A search warrant issued by a judge who did not
ask searching questions but only leading ones In Luna (regarding warrants of arrests, but
and in a general manner is invalid. applicable by analogy), the Court said that the law is
 Although there is no hard-and-fast rule complied with where the judge adopts as his own
governing how a judge should conduct his personal examination the questions asked by the
investigation, it is axiomatic that the police investigator, as appearing in the written sworn
examination must be probing and exhaustive, statements, which the judge read again to the
not merely routinary, general, peripheral, witnesses, whether said answers were his, and
perfunctory or pro forma. The judge must not whether said answers were true, to which the
simply rehash the contents of the affidavit but witnesses replied in the affirmative, there being no
must make his own inquiry on the intent and prohibition to the contrary.
justification of the application. [Yao v. People
(2007)] 6. Particularity of place to be
Judge must examine under oath or affirmation the searched and things to be seized
complainant and the witness he may produce
Warrant issued must particularly describe the
A warrant not based on personal knowledge is void. place to be searched and the persons to be seized
 DESCRIPTION OF PLACE
 Examination under oath: Description of place to be searched is sufficient
OATH: Includes any form of attestation by which if the officer with the SW can, with reasonable
a party signifies that he is bound in conscience efforts, ascertain and identify the place
to perform an act faithfully and truthfully. intended. [People v. Veloso (1925)]
- The oath required must refer to the truth of - An apparent typographical error will not
facts within the personal knowledge of the necessarily invalidate the SW, as long as the
petitioner or his witnesses, because the application contains the correct address.
purpose thereof is to convince the [Burgos v. Chief of Staff (1984)]
committing magistrate of the existence of  TEST OF PARTICULARITY
PC. [Alvarez v. CFI (1937)] - The executing officer‘s prior knowledge as
- Mere affidavits of the complainant or his to the place intended in the SW is relevant.
witnesses are not sufficient. The examining - This would seem especially true where the
judge has to take depositions in writing of executing officer is the affiant on whose
the complaint or his witnesses, and attach affidavit the SW had issued, and when he
the same to the record. [Prudente v. Judge knows that the judge who issued the SW
Dayrit (1989), citing Roan] intended the building described in the
affidavit.
Instances of invalid examination - The executing officer may look to the
 The complainant‘s application for SW and the affidavit in the official court file to resolve
witness‘ printed-form deposition were an ambiguity in the SW as to the place to be
subscribed and sworn to before the judge, but searched. [Burgos, supra]
the latter did not ask either of the 2 any
questions, the answer to which could possibly be Particularity
the basis for determining WON there was PC. Search warrant must be for only one specific
The participation of the judge was limited to offense.
 REMEDIAL LAW REVIEWER

 Likewise, a description of things to be seized as

General rule: The offense alleged must be specific ―subversive documents, propaganda materials,
68 as to enable the judge to find the existence of a FAs, printing paraphernalia and all other
probable cause. subversive materials‖ hardly provided a definite
 Definite provisions of the allegedly violated laws guideline to the executing officers. [Dizon v.
must be referred to. Hon. Castro (1985)]
 No SW shall issue for more than one specific  And where the language used is too all-
offense. [RPC] Otherwise, the SW is void. embracing as to include all the paraphernalia of
 The fact that the SW does not specify the petitioner in the operation of its business, the
specific offense does not render it a general SW is constitutionally objectionable. [Columbia
warrant. What is important is that the Pictures v. Flores (1993)]
application for SW states the specific offense
deemed to have been violated by the person Exceptions:
against whom the search warrant is addressed.  Where, by the nature of the goods to be seized,
 Scatter-shot warrant: One which allows search their description must be rather general, it is
for more than one specific offense and is null not required that a technical description be
and void for being violative of the Constitution. given, for this would mean that no SW could
 A SW issued for an ―illegal traffic of narcotics issue. [People v. Rubio (1932)]
and contraband‖ is fatally defective. The latter  The general description of the documents listed
is a generic term covering all goods exported in the SW does not render the SW void if the SW
from or imported in the country contrary to is severable, and those items not particularly
applicable statutes. Necessarily then, more than described may be cut off without destroying the
one offense could arise from the activity whole SW. [Uy v. BIR (2001)]
designated as illegal traffic of narcotics and
contraband. [Castro v. Pabalan (1976)] 7. Personal property to be seized
Exception: In People v. Marcos (1990), the SW was The property subject of a search warrant is personal
declared valid despite lack of mention of specific property, not real property. [Riano (2011)]
offense because the application stated that the
owner of the grocery store against whom the What may be seized (Rule 126, Sec. 3)
warrant was directed, had in his possession  Personal property subject of the offense.
unadulterated stocks in violation of the provisions of  Personal property stolen/embezzled and other
Art. 188 and 199 [RPC], which are closely allied proceeds/fruits of the offense.
articles as the punishable acts defined in one of  Personal property used or intended to be used
them can be considered as including or is necessarily as the means of committing an offense.
included in the other.
The rule does not require that the property to be
Things to be seized must be particularly described seized should be owned by the person against whom
 The SW must not suffer from generality. the search warrant is directed. It is sufficient that
Otherwise, the search and seizure of the items the person against whom the warrant is directed has
in the implementation of such SW is illegal and control of possession of the property sought to be
the items seized are inadmissible in evidence. seized. [Burgos v. Chief of Staff (1984)]
(Art. III, Sec. 2 of the 1987 Const.)
 Personal property only. SW does not issue for Rules on DNA Evidence A.M. No. 06-11-5-SC
seizure of immovable properties. (October 2, 2007)
 Ownership of the property seized is immaterial. The appropriate court may, at any time, either motu
It is sufficient that the person against whom SW proprio or on application of any person who has a
is directed has control/possession of the legal interest in the matter in litigation, order a DNA
property. [Burgos, supra] testing. Such order shall issue after due hearing and
notice to the parties. (Sec. 4)
Purpose: To limit the things to be seized to those
(and only those) particularly described in the SW, In a search incidental to an arrest even WITHOUT a
leaving the officers no discretion regarding what warrant, the person arrested may be searched for
articles they shall seize, to the end that (Rule 126, Sec. 13)
unreasonable searches and seizures may not be  Dangerous weapons.
made and that abuses may not be committed. [Uy  Anything which may have been used or
Kheytin v. Villareal (1920)] constitute proof in the commission of the
offense.
General rule: Things to be seized must be described
particularly. General search warrants are not
allowed. 8. Exceptions to search warrant
 SWs authorizing the seizure of books of accounts requirement
and records ―showing all the business
transactions‖ of certain persons, regardless of a. Search incidental to lawful arrest
whether the transactions were legal or illegal,
are general warrants prohibited by law.
[Stonehill v. Diokno (1967)]
 REMEDIAL LAW REVIEWER

Warrantless searches allowed as an incident of but must be shown by clear and convincing
lawful arrest evidence. It is the State which has the burden of
 Generally: Rule 126, Sec. 13, as illustrated by proving, by clear and positive testimony, that
jurisprudence the necessary consent was obtained and that it 69
 A person lawfully arrested may be searched for was freely and voluntarily given. [Valdez v.
(1) dangerous weapons or anything which may People (2007)]
have been (2) used or (3) constitute proof in the  Jurisprudence requires that in case of consented
commission of an offense without a search searches or waiver of the constitutional
warrant. (Rule 126, Sec. 13) guarantee against obtrusive searches, it must
- The arrest must precede the search; first appear that
generally, the process cannot be reversed. (1) the right exists;
Nevertheless, a search substantially (2) the person involved had knowledge, either
contemporaneous with an arrest can actual or constructive, of the existence of
precede the arrest at if the police have such right; and
probable cause to make the arrest at the (3) the said person had an actual intention to
outset of the search. [Riano (2011)] relinquish the right. [People v. Nuevas
 The rule assumes that the arrest is legal. If the (2007)]
arrest is illegal, then the search is illegal and as  When one voluntarily submits to a search or
a result, the things seized are inadmissible as consents to have it made of his
evidence. [People v. Aruta (1998)] person/premises, he is precluded from later
 The search is confined to his person, but as an complaining thereof. [People v. Kagui Malasugui
incident of an arrest, the place or premises (1936)]
where the arrest was made can also be searched  A peaceful submission to a search or seizure is
without a search warrant. The extent and not a consent or an invitation thereto, but is
reasonableness of the search must be decided merely a demonstration of regard for the
on its own facts and circumstances. [Nolasco v. supremacy of the law. [People v. Nuevas (2007)]
Paño (1985); Note: The MR was partially granted  When is consented search reasonable: Only if
in 1987 and held that the arrest was unlawful, kept within the bounds of the actual consent.
thus the search was likewise unlawful.] - A person‘s consent may limit the
- An officer making an arrest may take from extent/scope of a warrantless search in the
the person arrested any money or property same way that the specifications of a
found upon his person which was used in warrant limit the search pursuant thereto.
the commission of the crime or was the - Officers may not use a person‘s limited
fruit of the crime or which might furnish consent to get inside his home and conduct
the prisoner with the means of committing a general search.
violence or of escaping or which may be - The US SC said that a search for a stolen TV
used as evidence in the trial of the case. set cannot extend to search of an
[People v. Musa (1997)] individual‘s other papers and documents.
- In People v. Leangsiri (1996), the accused On the other hand, where there is a nexus
were lawfully arrested in Rm. 504 of a hotel between the crime for which the evidence
and a warrantless search was conducted in is sought and the item that is seized, there
Rm. 413. The search was held to be illegal. is no abuse of the consent to a search.
- In Chimel v. California (1969), the US SC
said that there is no justification for c. Search of moving vehicle
searching through all of the desks drawers
or other closed and concealed areas in the Search of moving vehicle
room where arrest was made. A SW was Rationale: Peace officers may lawfully conduct
needed. searches of moving vehicles without need of a
- When one is legally arrested for an offense, warrant as it is impracticable to secure a judicial
whatever is found in his possession/control warrant before searching a vehicle since it can be
may be seized and used in evidence against quickly moved out of the locality or jurisdiction in
him. [Alvero v. Dizon (1946)] which the warrant may be sought. [People v. Tuazon
- Where a search is first undertaken, and an (2007)]
arrest was effected based on evidence  However, these searches would be limited to
produced by such search, both search and visual inspection and the vehicles or their
arrest are illegal. [Lui v. Matillano (2004)] occupants cannot be subjected to physical or
body searches, except where there is probable
b. Consented Search cause to believe that the occupant is a law
offender or the contents of the vehicles are
Consented warrantless search instruments or proceeds of some criminal
Rationale: The right to privacy may be waived. offense.
 The consent to a warrantless search must be  The search and seizure without warrant of
voluntary, that is, it must be unequivocal, vessel and aircrafts for violation of customs laws
specific, and intelligently given, has been a traditional exception to the
uncontaminated by any duress or coercion. requirement of SW. [Roldan v. Hon. Arca (1975)]
Consent to a search is not to be lightly inferred,
 REMEDIAL LAW REVIEWER

 Nonetheless, in all cases falling under this - Evidence must be immediately apparently
category, there must be a showing of a PC of a illegal (i.e., drug paraphernalia);
70 violation of the law. [Caroll v. US (1924)] - Plain view justified mere seizure of
 Where a vehicle is stopped and subjected to an evidence without further search.
extensive search, the warrantless search is valid
only as long as the officers conducting the Limitations: [People v. Musa (1993)]
search have reasonable or probable cause to - It may not be used to launch unbridled
believe before the search that they will find the searches and indiscriminate seizures.
instrumentality/evidence pertaining to a crime, - Does not extend to a general exploratory
in the vehicle to be searched. [People v. CFI search made solely to find evidence of
(1980)] defendant‘s guilt.
 Highly regulated by the government, the
vehicle‘s inherent mobility reduces expectation  The doctrine is usually applied where a police
of privacy especially when its transit in public officer is not searching for evidence against the
thoroughfares furnishes a highly reasonable accused, but nonetheless inadvertently comes
suspicion amounting to probable cause that the across an incriminating object.
occupant committed a criminal activity. [Riano  Even if an object is in plain view, before it can
(2011)] be seized without a SW, its incriminating nature
must first be apparent.
d. Check points; body checks in  Where police officers are on the premises
airport pursuant to a valid consent to a search, an item
falling into their plain view may properly be
seized even if the item is not connected with
Searches conducted in checkpoints [People v.
their purpose in entering.
Vinecario (2004)]
 They are valid as long as they are warranted by
the exigencies of public order and conducted in f. Stop and Frisk situation
a way least intrusive to motorists.
 The vehicle is neither searched nor its occupants STOP AND FRISK: A limited protective search of
subjected to a body search (i.e. inspection of outer clothing for weapons. [Malacat v. CA (1997)]
the vehicle is limited to a visual search).
 Routine inspections are not regarded as violative Dual purpose: (1) The general interest of effective
of an individual‘s right against unreasonable crime prevention and detection; and (2) The more
search: pressing interest of safety and self-preservation of
- Where the officer merely draws aside the the police officer to permit him to take steps to
curtain of a vacant vehicle which is parked assure himself that the person with whom he deals
on the public fair grounds; with is not armed with a deadly weapon that could
- Officer simply looks into a vehicle; be used against him. [Esquillo v. People (2010)]
- Officer flashes a light therein without  Where a police officer observes unusual
opening car‘s doors; conduct, which leads him reasonably to
- Occupants not subjected to a physical conclude in the light of his experience that
search; criminal activity may be afoot, and that a
- Inspection is limited to usual search or person with whom he is dealing may be armed
inspection; or and presently dangerous,
- Routine check is conducted in a fixed area  Where in the course of investigating this
[People v. CA (2002)] behavior he identifies himself as a policeman
and makes reasonable inquiry, and where
e. Plain view situation nothing in the initial stage of the encounter
serves to dispel his reasonable fear for his own
or others’ safety, he is entitled for the
Plain view doctrine (2008 Bar) protection of himself and others in the area to
Rationale: Authorities do not consider a mere
conduct a carefully limited search of outer
observation of what is in plain view, a search.
clothing of such persons in an attempt to
discover weapons which might be used to
Thus, objects falling in the plain view of a police
assault him. [Terry v. Ohio (1968)]
officer who has a right to be in the position to have
 Under this theory, PC is not required to conduct
that view are not products of a search, may be
a ―stop and frisk‖ but, nevertheless, mere
seized and may be introduced in evidence. [Harris v.
suspicion/hunch will not validate a ―stop and
US (1968)]
frisk.‖
- Test: Genuine reason - Reasonable belief
Requisites (PIA): [People v. Valdez (1999), People v.
based on genuine reason and in the light of
Salanguit (2001)]
the officer‘s experience and the
- A prior valid intrusion i.e., based on the
surrounding circumstances, that a crime has
valid warrantless arrest in which the police
either taken place or is about to take place
are legally present in the pursuit of their
and the person to be stopped is armed and
official duties;
dangerous.
- Evidence was inadvertently discovered by
the police who have a right to be where
they are;
 REMEDIAL LAW REVIEWER

- Based on ―specific and articulable facts‖ SOP. Constitutional rights cannot be invoked
and not merely upon the officer‘s bare when there is no government interference.
suspicion or hunch. [People v. Marti (1999)]
 A genuine reason must exist, in light of the - Extent of participation by NBI agents is 71
police officer‘s experience and surrounding merely CONFIRMATORY and NOT
condition, to warrant the belief that the person EXPLORATORY
has weapons concealed about him.
9. Remedies from unlawful search
g. Enforcement of Custom Laws and seizure
Customs search
Who may avail of remedies
For the enforcement of customs duties and tariff
 Only the party whose rights have been impaired
laws, the Collector of Customs is authorized to
thereby; the objection to an unlawful search
effect searches and seizure. [General Travel
and seizure is purely personal and cannot be
Services v. David (1966)]
availed of by third parties. [Stonehill v. Diokno
(1967); Santos v. Pryce Gases, Inc. (2007)]
The Tariff Code authorizes customs officers to:
 Hence, when a corporation‘s documents were
 Enter, pass through or search any land,
seized, the corporate officers cannot question
enclosure, warehouse;
the legality of the search as their personalities
 Inspect/search/examine any vessel/aircraft and
are separate and distinct from that of the
any trunk/package/box/envelope or any person
corporation. [Stonehill v. Diokno (1967)]
on board, or stop and examine any
vehicle/beast/person suspected of
Remedies
holding/conveying any dutiable/prohibited
 Employ any means to prevent the search.
article introduced into the Philippines contrary
- Without a SW, the officer cannot insist on
to law.
entering a citizen‘s premises. If he does so,
he becomes an ordinary intruder.
General rule: The Tariff and Customs Code does not
- The person to be searched may resist the
require a warrant for such searches.
search and employ any means necessary to
prevent it, without incurring any criminal
Exception: In the search of a dwelling house, SW is
liability. [People v. Chan Fook (1921)]
required.
 File criminal action against officer.
h. Other exceptions A public officer/employee who procures a SW
without just cause is criminally liable under Art.
 Exigent and Emergency Circumstances 129, RPC (Search warrants maliciously obtained
Example: There was a prevailing general chaos and abuse in the service of those legally
and disorder because of an ongoing coup, and obtained).
the raid of the office/building was precipitated
by an intelligence report that said office was  File a Motion to Quash the illegal SW. - This
being used as HQ by the RAM. Also, the remedy is employed if search is not yet
surveillance team before the raid was fired upon conducted.
by the people inside. The raiding team had no
opportunity to apply for warrant as the court General rule: The motion must be filed before
then was closed. There was urgency and the sala of the judge who issued it. Only the
exigency that warrant was lawfully dispensed court that issued the SW may order revocation
with. [People v. de Gracia (1994)] of SW or release of things seized. [Pagkalinawan
 Buy-bust Operation: No need for SW (or v. Gomez (1967)]
warrant of arrest) because the accused is caught Exception: Where the SW is issued by one
in flagrante delicto. court and the criminal action based on the
- A form of entrapment legally employed by results of the search is afterwards filed in
peace officers as an effective way of another court, the motion may be filed in either
apprehending drug dealers in committing an court. [People v. CA (1999)]
offense.
- Entrapment: Employment of such ways and What may be raised in the MTQ:
means for the purpose of trapping or - Existence or non-existence of probable
capturing a lawbreaker cause at the time of issuance of the SW;
- Absence of prior surveillance, much less a - Compliance with procedural and substantial
lengthy one, or test buy does not affect the requisites.
legality of the buy-bust operation. [People
v. Concepcion (2008)] Matters of defense are to be raised in the
 Private Searches and ―State Expansion of criminal action. [DOH v. Sy Chi Siong (1989)]
Private Search‖
The evidence was obtained by a private person  File a motion to return seized things. - This is
acting in a private capacity without state the remedy used if the search was already
participation and intervention. It was company
 REMEDIAL LAW REVIEWER

conducted and goods were seized as a buyer in good faith, but said goods were
consequence thereof. taken from the purchaser with the use of a
72 - Where the motion will be filed follows the SW although the criminal case for estafa
same rules as 2(c) above. against the accused was still pending, the
goods should be returned to the buyer. The
 Motion to quash a search warrant or to suppress buyer is entitled to possession of goods until
evidence (2005, 2007 Bar) restitution is ordered by the court in the
- A motion to suppress as evidence the criminal case. [Yu v. Honrado (1980)]
objects illegally taken (exclusionary rule) –
any evidence obtained through Waiver of immunity against unreasonable searches
unreasonable searches and seizures shall be and seizure
inadmissible for any purpose in any [Pasion v. Locsin (1938)]
proceeding  The constitutional immunity against
unreasonable searches and seizure is a personal
Rule 126, Sec. 14 Where to file right that may be waived expressly/impliedly.
If criminal action has Court where the action  Waiver cannot be made just by anyone, except
been filed has been instituted. the person whose right is being invaded or one
If no criminal action has Court that issued SW. who is expressly authorized to do so in his
been instituted behalf.
If no criminal action is Court where the
filed and motion is first subsequent criminal  Requisites of a valid waiver:
filed with the court that action has been - It must appear that the right exists;
issued the SW, but it instituted. - That the person involved had knowledge,
failed to resolve the (actual or constructive) of the existence of
motion and a criminal such right;
case is subsequently - That the person had an actual intention to
filed in another court relinquish the right.

Grounds for a Motion to Quash [Bache & Co. v. Ruiz  Criminal Liability
(1971)] - Violation of the following:
 No personal examination by the judge. o Violation of domicile (RPC Art. 128)
 More than one specific offense. o SW maliciously obtained (Art. 129)
 No particular description. o Searching domicile without witnesses
(Art. 130)
Who may file o Unjust interlocutory order (Art. 206)
 Person injured. - Grounds:
 Person searched. o Against public officer or employer:
 Owner of the property.  Entering without authority; against
the will; refuses to leave.
An accused may file a Motion to Suppress Evidence if  SW procured without just cause or if
he is not among the persons who can file a Motion to with just cause, exceeds his authority
Quash. or uses unnecessary severity of force.
 Conducting the search without the
Effect of failure to quash warrant required witnesses.
 Where no MTQ the SW was filed in or resolved o Against judge
by the issuing court, the interested party may  For knowingly rendering an unjust
move in the court where the criminal case is interlocutory order.
pending for the suppression of the personal  Inexcusable negligence or ignorance.
property seized IF the same is offered therein as
evidence (REGALADO).  Civil Liabilities
 The MTQ a SW and Motion to Suppress Evidence - Violation of the following:
are alternative, not cumulative remedies. o Violation of rights and liberties (Art. 32
[9], CC)
Effects of illegal search o Malicious prosecution and acts referred to
 Illegally seized evidence may not be admitted in Art. 32. (Art. 2218, CC)
evidence in any proceeding. (Art. III, Sec. 2, - Malice or bad faith is not required
1987 Const.) - Not only official actions, but makes all
 DISPOSITION OF ILLEGALLY SEIZED PROPERTY persons who are responsible for the
General rule: Goods seized by virtue of an violation liable for damages [MHP Garments
illegal warrant must be returned. [Castro v. v. CA (1994)]
Pabalan (1976)]

Exception: If possession of the things seized is XVI. PROVISIONAL REMEDIES

prohibited by law, they should not be returned.
o However, where the accused obtained goods
from another through payment of bouncing 1. Nature
checks and thereafter sold said goods to a  Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
 REMEDIAL LAW REVIEWER

connection with the civil action deemed Enforcement Only after acquisition of
instituted with the criminal action [Rule 127, of writ jurisdiction over the person of the
Sec. 1] defendant
 Where the civil action has actually been 73
instituted, or proceeded independently of the
criminal action, these provisional remedies
cannot be availed of in the criminal action but
may be applied for in the separate civil action
(Regalado).
 If the civil action is suspended on account of
filing of the criminal action: The court with
which the civil case is filed is not thereby
deprived of its authority to issue auxiliary writs
that do not go into the merits of the case
[Ramcar Inc vs. de Leon].
 Not available when:
1. Offended party has waived the civil claim
2. Offended party has reserved the civil claim
3. Offended party has already instituted a
separate civil action
4. Criminal action carries with it no civil
liability

2. Kinds of provisional remedies

 Reference to provisional remedies in Rule 127 is
made in general terms, hence preliminary
injunction, preliminary attachment,
receivership, replevin or support pendent lite
may be availed of. (Riano)
 The accused may present evidence to prove his
defense and damages, if any, arising from the
issuance of a provisional remedy in the case.
[Rule 119, Sec. 11(b)]

Preliminary Attachment

1) When proper [Rule 127, Sec. 2]

When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for the
satisfaction of any judgment that may be recovered
from the accused in the following cases:
1. When the accused is about to abscond from the
Philippines
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the
accused who is a public/corporate officer,
attorney, factor, broker, agent or clerk, in the
course of his employment as such, or by any
other person in a fiduciary capacity, or for a
willful violation of duty
3. When the accused has concealed, removed or
disposed of his property, or is about to do so
4. When the accused resides outside the
Philippines

2) Issuance and implementation of the writ

[Gonzalez v. State Properties (2001)]

When
Issuance of May be done before acquisition of
writ jurisdiction over the accused; may
be ex-parte
 REMEDIAL LAW REVIEWER

APPENDIX 1: AVAILABILITY OF BAIL

74 AVAILABLE as a MATTER AVAILABLE as a MATTER OF
NOT AVAILABLE
OF RIGHT DISCRETION
After conviction by the RTC If the accused is charged with a capital offense or
Before or after conviction
imposing a penalty of an offense punishable by reclusion perpetua or life
by the MetTC, MTC, or
imprisonment which does not imprisonment, and the evidence of guilt is strong
MCTC (114.4)
exceed 6 years (114.5) (114.7)
After conviction by the RTC where a penalty of
imprisonment exceeding 6 years but not more than
20 years is imposed and any of the ff.
circumstances is present:
1) Recidivism, quasi-recidivism, habitual
After conviction by the RTC
delinquency, commission of crime aggravated
where a penalty of
by circumstance of reiteration;
Before conviction by the imprisonment exceeding 6
2) Previously escaped from legal confinement,
RTC wheter in the exercise years but not more than 20
evasion of sentence or violation of conditions
of its original or appellate years is imposed and not one
of bail without valid justification;
jurisdiction (114.4) of the circumstances in sec. 5
3) Commission of offense while under probation,
is present, or any other
parole or conditional pardon;
similar circumstances (114.5)
4) Probability of flight;
5) Undue risk that he may commit another crime
during the pendency of appeal. (114.5)
6) Any other circumstances as may be present
and proved
If, prior to the judgment
becoming final or before the
accused serves his sentence,
the accused applies for After judgment has become final or the accused
probation as allowed by law, has commenced to serve his sentence (114.24)
he may be admitted to bail or
released on recognizance
(114.24)
 REMEDIAL LAW REVIEWER

APPENDIX 2: MODES OF REVIEW

PETITION FOR REVIEW ON
ORDINARY APPEAL PETITION FOR REVIEW
CERTIORARI
Available after any judgment or final Available only when the  General Rule: Available only when 75
order petition shows prima facie issues of law are involved; findings of
that the lower court has fact being deemed conceded by the
committed an error of fact or appellant.
law that will warrant the  Exception: SC reviews questions both
reversal/modification of the of fact and of law in cases decided
decision or final order sought by the RTC: [RA 296]
to be reviewed. o Where the penalty imposed is life
imprisonment;
o Which involve other offenses
committed on the same occasion
or arising out of the same
occurrence that gave rise to the
more serious offense for which the
penalty of death or life
imprisonment is imposed.
Matter of right Not a matter of right Not a matter of right
 By filing a notice of appeal with the  Appeal by PFRC from the decision or
court that rendered the judgment final order of the RTC/CA may be
and serving a copy on the adverse taken by filing the petition within 15
party. days from notice of judgment or of
 NOTICE OF APPEAL – Written notice the denial of MFR filed in due time.
of intention to take appeal. A mere  Copy must be served on the court
verbal notice of an intention to whose judgment or final order is
appeal expressed by the accused, sought to be reviewed.
does not perfect an appeal. [People  If no record of appeal has been filed
v. Natividad (1936)] in the CA, the SC clerk of court, upon
 When no notice of appeal is given in admission of the petition, shall
writing or no record that any was demand from the CA the elevation of
given, the cause will be stricken from the whole record of the case. [Rule
the court calendar since there was no 45, Sec. 2]
appeal. [US v. Tenorio (1917)]  Provision above governs procedure of
 But when the accused manifests or appeal from RTC or Sandiganbayan to
gives notice of his intention to appeal the SC.
in open court and files a bond for his
provisional release within 15 days
from the promulgation of the
decision against him, he may be
considered as having perfected his
appeal. [People v. Agasang (1956)]