Criminal Procedure: San Beda College of Law

San Beda College of Law
135
MEMORY AID
IN
REMEDIAL LAW
CRIMINAL PROCEDURE
Criminal Jurisdiction power of the State to try and punish a person for a violation of its penal laws. REQUISITES FOR A VALID EXERCISE OF CRIMINAL JURISDICTION: 1. The offense, by virtue of the imposable penalty OR its nature, is one which the court is by law authorized to take cognizance of, (jurisdiction over the SUBJECT MATTER). 2. The offense must have been committed within its territorial jurisdiction, (jurisdiction over the TERRITORY). 3. The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court, (jurisdiction over the PERSON OF THE ACCUSED). JURISDICTION OVER THE SUBJECT MATTER
Derived from the law. It can never be acquired solely by consent of the accused. Objection that the court has no jurisdiction of the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived.
2.
Determined by the law in force at the time of the institution of the criminal action. ONCE VESTED, IT CANNOT BE WITHDRAWN BY: a) subsequent valid amendment of the information; or b) a subsequent statutory amendment of the rules of jurisdiction, UNLESS the amendatory law provides otherwise. RULE 110 PROSECUTION OF OFFENSES
Section 1. actions.
Institution
of
criminal
JURISDICTION OVER THE PERSON OF THE ACCUSED

May be acquired by consent of the accused or by waiver of objections. If he fails to make his objection in time, he will be deemed to have waived it.
For offenses where a preliminary investigation is required - by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. Preliminary investigation is REQUIRED for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1day without regard to fine (Rule 112, Sec. 1 Par.2). For all other offenses - by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. DOES NOT APPLY to offenses which are subject to summary procedure. Effect of institution of the criminal action: It interrupts the running of the period of prescription of the offense charged unless otherwise provided by special laws.
DETERMINATION OF CRIMINAL JURISDICTION: 1. Determined by the allegations in the complaint or information not by the results of proof or by the trial courts appreciation of the evidence presented.
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

136
MEMORY AID
Remedies of the offended party if the prosecutor refuses to file an information: 1. file an action for mandamus, in case of grave abuse of discretion; 2. lodge a new complaint before the court having jurisdiction over the offense; 3. take up the matter with the Secretary of Justice in accordance with the Rev. Administrative Code; 4. institute an administrative charges against the erring prosecutor; and 5. file criminal action against the prosecutor with the corresponding civil action for damages. May Injunction Issue to Restrain Criminal Prosecution? GENERAL RULE: Criminal prosecutions may NOT be restrained or stayed by injunction, preliminary or final. The reason being, public interest requires that criminal acts be immediately investigated and prosecuted for the protection of the society (Domingo vs. Sandiganbayan, 322 SCRA 655). EXCEPTIONS: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority; 5. When the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. When the court had no jurisdiction over the offense; 8. When it is a case of persecution rather than prosecution; 9. When the charges are manifestly false and motivated by lust for vengeance; and 10. When there is clearly no prima facie case against the accused and a
IN
REMEDIAL LAW
motion to quash on that ground has been denied. Section 2. Form of the complaint or information. FORM 1. In writing; 2. In the name of the People of the Philippines; and 3. Against all persons who appear to be responsible for the offense involved. Section 3. Complaint defined. A Complaint is: 1. a sworn written statement; 2. charging a person with an offense; 3. subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated. The complaint mentioned in this section refers to one filed in court for the commencement of a criminal prosecution for violation of a crime, usually cognizable by municipal trial courts as well as to a complaint filed by an offended party in private crimes or those which cannot be prosecuted de officio. REQUISITES OF A COMPLAINT: 1. it must be in writing and under oath; 2. it must be in the name of the People of the Philippines; 3. it must charge a person with an offense; and 4. it must be subscribed by the offended party, by any peace officer or public officer charged with the enforcement of the law violated. PERSONS WHO CAN FILE A COMPLAINT 1. Offended party 2. Any peace officer


137
MEMORY AID
3. Other public officer charged with the enforcement of the law violated ex. Internal Revenue Officer for violation of the NIRC, custom agents with respect to violations of the Tariff and Customs Code Section 4. Information defined. An Information is: 1. an accusation in writing; 2. charging a person with an offense; 3. subscribed by the prosecutor and filed with the court. REQUISITES OF AN INFORMATION 1. it must be in writing; 2. it must charge a person with an offense; 3. it must be subscribed by the fiscal; and 4. it must be filed in court. COMPLAINT
Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated it may be filed either in court or in the prosecutors office must be made under oath
IN
REMEDIAL LAW
FULL DISCRETION AND CONTROL OF THE PROSECUTOR All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. A PRIVATE PROSECUTOR may be authorized to prosecute a criminal action subject to the following conditions: 1. the public prosecutor has a heavy work schedule, or there is no public prosecutor assigned in the province or city; 2. the private prosecutor is authorized IN WRITING by the Regional State Prosecutor (RSP), Provincial or City Prosecutor; 3. the authority of the private prosecutor must be approved by the court; 4. the private prosecutor shall continue to prosecute the case until the end of the trial unless the authority is withdrawn or otherwise revoked by the RSP, Provincial or City Prosecutor; and 5. In case of the withdrawal or revocation of the authority of the private prosecutor, the same must be approved by court. (Memo Circ. No. 25, April 26, 2002, Regarding Amendment to Sec. 5, Rule 110) In appeals before the CA and the SC, it is only the Solicitor General that is authorized to bring and defend actions in behalf of the People of the Philippines (People vs. Nano, 205 SCRA 155). In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman, through its Special Prosecutor shall represent the People of the Philippines, EXCEPT in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14-A, issued in 1986 (Sec. 4, RA 8249).
INFORMATION
Subscribed by the fiscal (indispensable requirement)
it is filed with the court need not be under oath
Prosecution in the RTC are always commenced by information, EXCEPT: 1. in certain crimes against chastity (concubinage, adultery, seduction, abduction, acts of lasciviousness); and 2. defamations imputing any of the aforesaid offenses wherein a sworn written complaint is required in accordance with section 5 of this Rule. Section 5. Who criminal actions.
must
prosecute

138
MEMORY AID
PROSECUTION CHASTITY OF CRIMES AGAINST
IN
REMEDIAL LAW
WHO MAY PROSECUTE 1. Concubinage and adultery only by the offended spouse who should have the status, capacity, and legal representation at the time of filing of the complaint, regardless of age; 2. Seduction, Abduction and Acts of Lasciviousness prosecuted exclusively and successively by the following persons in this order: a) by the offended woman b) by the parents, grandparents or legal/judicial guardians in that successive order c) by the State in the exercise of the right of parens patriae, when the offended party dies or becomes incapacitated before she could file the complaint and she has no known parents, grandparents or guardian. 3. A defamation imputing to a person any of the foregoing crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness can be prosecuted only by the party or parties defamed (Article 360, last par., Revised Penal Code). If the offended party is of legal age AND does not suffer from physical or mental disability, she alone can file the complaint to the exclusion of all others. WHO CAN GIVE PARDON 1. Concubinage and adultery - only the offended spouse, not otherwise incapacitated, can validly extend the pardon or consent contemplated therein. 2. Seduction, abduction, and acts of lasciviousness a) the offended minor, if with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead; b) the parents, grandparents or guardian of the offended minor,
in that order, CANNOT extend a valid pardon in said crimes WITHOUT the conformity of the offended party, even if the latter is a minor; c) if the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon. The pardon refers to pardon BEFORE filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does NOT prohibit the continuance of the prosecution of the offense EXCEPT in case of marriage between the offender and the offended party. PARDON vs. CONSENT Consent refers to future acts, while pardon refers to past acts of adultery. The importance of this distinction is that consent, in order to absolve the accused from liability, is sufficient even if granted only to the offending spouse, whereas pardon must be extended to both offenders The SUBSEQUENT MARRIAGE between the offended party and the accused extinguishes the criminal liability of the latter, together with that of the coprincipals, accomplices and accessories. EXCEPT: 1. where the marriage was invalid or contracted in bad faith in order to escape criminal liability, 2. in private libel 3. in multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned. The ACQUITTAL OR DEATH of one of the accused in the crime of adultery does not bar the prosecution of the other accused (People vs. Topio, et al., 35 Phil. 901). HOWEVER, the death of the offended spouse before the filing of the complaint for adultery bars further prosecution, BUT if the offended spouse


139
MEMORY AID
died after the filing of the corresponding complaint, his death will NOT prevent the proceeding from continuing to its ultimate conclusion. DESISTANCE of complainant does not bar criminal prosecution but it operates as waiver of the right to pursue civil indemnity. Section 6. Sufficiency of complaint or information. CONTENTS OF A VALID COMPLAINT OR INFORMATION 1. Name of the accused, including any appellation or nickname An error in the name of the accused is not reversible as long as his identity is sufficiently established and this defect is curable at any stage of the proceedings as the insertion of the real name of the accused is merely a matter of form. 2. The designation of the offense 3. The acts or omissions complained of as constituting the offense 4. The name of the offended party 5. The approximate time of the commission of the offense 6. The place wherein the offense was committed PURPOSE OF THE RULE 1. To inform the accused of the nature and cause of accusation against him. 2. To notify the defendant of the criminal acts imputed to him so that he can duly prepare his defense. Substantial defect in the information cannot be cured by evidence that would jeopardize the accuseds right to be informed of the true nature of the offense he is being charged with Section 7. Name of the accused.
IN
REMEDIAL LAW
PURPOSE The manifest intent of the provision is to make a specific identification of the person to whom the commission of an offense is being imputed. Section 8. Designation of the offense. The information or complaint must state or designate the following whenever possible: 1. The designation of the offense given by the statute. 2. The statement of the acts or omissions constituting the offense, in ordinary, concise and particular words. 3. The specific qualifying and aggravating circumstances must be stated in ordinary and concise language. The qualifying and aggravating circumstances cannot be appreciated even if proved UNLESS alleged in the information. In case of allegation of aggravating circumstance of HABITUAL DELINQUENCY, it should not be generally averred. The information must specify the requisite data regarding: 1. the commission of the crimes; 2. the last conviction or release; 3. the other previous conviction or release of the accused. ALLEGATIONS PREVAIL OVER DESIGNATION OF THE OFFENSE IN THE INFORMATION It is not the designation of the offense in the complaint or information that is controlling (People vs. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine the nature of the crime (People vs. Magdowa, 73 Phil. 512).


140
MEMORY AID
The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat vs. Court of Appeals, 265 SCRA 701).
IN
REMEDIAL LAW
In this case, the exception is a matter of defense which the accused has to prove. EXCEPTION: Where the statute alleged to have been violated applies only to a specific class of persons and to special conditions, the information must allege facts establishing that the accused falls within the specific class affected and not those affected from the coverage of law. Where negative averment is an essential element of the crime, it must be proved.
Limitation on the rule that an accused may be convicted of a crime which is more serious than that named in the title so long as the facts alleged the more serious offense: An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves: a) a change in the theory of the trial; b) requires of the defendant a different defense; or c) surprises the accused in any way (U.S. vs. Panlilio, 28 Phil. 603) . Section 9. Cause of the accusation. PURPOSE 1. to enable the court to pronounce proper judgment; 2. to furnish the accused with such a description of the charge as to enable him to make a defense; 3. as a protection against further prosecution for the same cause. RULE ON NEGATIVE AVERMENTS GENERAL RULE: Where the statute penalizes generally the acts therein defined and is intended to apply to all persons indiscriminately, the information is sufficient even if does not allege that the accused falls within the excepted situation, for then the complete definition of the offense is entirely separable from the exceptions and can be made without reference to the latter.
Section 10. Place of commission of the offense PURPOSE To show territorial jurisdiction. Section 11. Date of commission of the offense GENERAL RULE: It is NOT required that the complaint or information state with particularity the PLACE where the crime was committed and the DATE of the commission of the crime. EXCEPTION: If the PLACE/DATE of the commission of the offense constitutes an essential element of the offense. Section 12. Name of the offended party GENERAL RULE: The offended party must be designated by name, nickname, any other appellation or by fictitious name. EXCEPTION: In crimes against property, the description of the property must supplement the allegation that the owner is unknown. Section 13. Duplicity of offense. There is duplicity when the complaint or information charges 2 or more DISTINCT or DIFFERENT offenses. GENERAL RULE:


141
MEMORY AID
A complaint or information must charge only one offense. EXCEPTIONS: 1. Complex crimes 2. Special Complex crimes 3. Continuous crimes or delicto continuado 4. Crimes of which another offense is an ingredient Should there be duplicity of offense in the information, the accused must move for the quashal of the same BEFORE arraignment arraignment, otherwise, he is deemed to have waived the objection and maybe found guilty of as many offenses as those charged and proved during the trial. Section. 14. substitution. Amendment or
IN
REMEDIAL LAW
Substitution If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy. Limitation to the rule on substitution: 1. No judgment has yet been rendered. 2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein. 3. The accused would not be placed in double jeopardy. AMENDMENT SUBSTITUTION OF INFORMATION OR COMPLAINT
May involve either formal or substantial changes Amendment before the plea has been entered can be effected without leave of court. Amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over Involves substantial change from the original charge Substitution of information must be with leave of court as the original information has to be dismissed. Another preliminary investigation is entailed and the accused has to plead anew to the new information
KINDS OF AMENDMENT 1. BEFORE THE PLEA covers both substantial and formal amendment, WITHOUT leave of court. 2. AFTER THE PLEA covers only formal amendment provided: a) leave of court is obtained b) such amendment is not prejudicial to the rights of the accused. EXCEPT when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another arraignment of the accused under the amended information. An amendment is only in form where it neither affects nor alters the nature of the offense charged OR where the charge does not deprive the accused of a fair opportunity to present his defense OR where it does not involve a change in the basic theory of the prosecution.
Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.


142
MEMORY AID
the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.
IN
REMEDIAL LAW
changed by agreement of the parties, or by the consent of the defendant. GENERAL RULE: Subject to existing laws, in all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where the offense was committed or any of its essential ingredients occurred. EXCEPTIONS TO THE RULE OF VENUE: 1. Felonies under Art. 2 of the Revised Penal Code Shall be cognizable by the proper court where the criminal action was first filed. 2. Complex Crimes Where the crime charged is a complex crime, the RTC of any province in which any one of the essential elements of such complex crime had been committed has jurisdiction to take cognizance of the offense. 3. Continuing Offense - is one where the elements of which occur in several places, (unlike a LOCAL OFFENSE - one which is fully consummated in one place) The venue is in the place where one of its essential elements was consummated. 4. Piracy The venue of piracy, unlike all other crimes, has no territorial limits. 5. Libel The action may be instituted at the election of the offended or suing party in the province or city: a) where the libelous article is printed and first published; b) if one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense;
VARIANCE BETWEEN INDICTMENT AND PROOF (Situations Contemplated) 1. When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved. 2. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged. 3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of a new information charging the proper offense. The third situation set forth above is substitution of information under Section 14, Rule 110. Section 15. Place where action is to be instituted. PURPOSE The purpose being not to compel the defendant to move to, and appear in a different court from that of the territory where the crime was committed, as it would cause him great inconvenience in looking for his witnesses and other evidence in another place (Beltran vs. Ramos, 96 Phil. 149). VENUE IS JURISDICTIONAL Venue is jurisdictional as the court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, or


143
MEMORY AID
c) if the offended party is a public official, where the latter holds office at the time of the commission of the offense. 6. In exceptional circumstances to ensure a fair trial and impartial inquiry. The SC shall have the power to order a change of venue or place of trial to avoid miscarriage of justice (Section 5[4], Article VIII, 1987 Constitution). Section 16. Intervention of offended party in criminal action. the
IN
REMEDIAL LAW
2. when the offended party RESERVES his right to institute a separate civil action 3. when offended party INSTITUTES A CIVIL ACTION PRIOR to the criminal action. WHEN RESERVATION SHALL BE MADE 1. before the prosecution starts to present its evidence and 2. under circumstances affording the offended party to a reasonable opportunity to make such reservation. ONLY the civil liability arising from the crime charged as a felony is now deemed instituted. Civil liability arising from other sources of obligations are no longer deemed instituted like those under Article 32, 33, 34 and 2176 of the Civil Code which can be prosecuted even without reservation. In BP 22 cases, no reservation to file the civil action separately shall be allowed. RULES ON FILING FEES OF CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION 1. NO filing fees are required for amounts of ACTUAL DAMAGES, EXCEPT with respect to criminal actions for violation of BP 22, in which case, the offended party shall pay in full the filing fees based on the face value of the check as the actual damages; 2. Damages other than actual (moral, exemplary and other damages) if specified in the complaint or information, the corresponding filing fees shall be paid, otherwise the court will not acquire jurisdiction over such damages; 3. Where moral, exemplary and other damages are NOT specified in the complaint or information, the grant and amount thereof are left to the sound discretion of the trial
GENERAL RULE: Offended party has the right to intervene by counsel in the prosecution of the criminal action, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111. EXCEPTIONS: 1. Where from the nature of the crime and the law defining and punishing it, NO civil liability arises in favor of the offended party; and 2. Where the offended party has waived his right to civil indemnity OR has expressly reserved his right to institute a civil action OR has already instituted said action. RULE 111 PROSECUTION OF CIVIL ACTIONS Section 1. Institution of criminal and civil actions. GENERAL RULE: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense shall be deemed instituted with the criminal action. EXCEPTIONS: 1. when the offended party WAIVES the civil action


144
MEMORY AID
court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment. Counterclaims, cross-claims, third party complaints are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof may be litigated in a separate civil action. Section 2. When separate civil action is suspended. PRIMACY OF CRIMINAL ACTION OVER CIVIL ACTION 1. After the filing of the criminal action, the civil action which has been reserved CANNOT be instituted until final judgment has been rendered in the criminal action. 2. If the civil action is instituted BEFORE the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment in the criminal action has been rendered. EXCEPTIONS: a) In cases of independent civil actions based upon Arts. 32, 33, 34 and 2176 of the Civil Code; b) In cases where the civil action presents a prejudicial question; c) In cases where the civil action is consolidated with the criminal action; and d) Where the civil action is not one intended to enforce the civil liability arising from the offense. ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE FILING OF THE CIVIL CASE WHERE: 1. the acquittal is based on reasonable doubt, if the civil case has been reserved 2. the decision contains a declaration that the liability of
IN
REMEDIAL LAW
the accused is not criminal but only civil in nature and 3. the civil liability is not derived from or based on the criminal act of which the accused is acquitted (Sapiera vs. Court of Appeals, 314 SCRA 370). Extinction of the penal action does not carry with it the extinction of the civil action, UNLESS the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. The extinction of the civil liability refers exclusively to civil liability arising from crime; whereas, the civil liability for the same act considered as a quasidelict is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Where the criminal case was dismissed before trial because the offended party executed an affidavit of desistance, the civil action thereof is similarly dismissed. Section 3. When civil action may proceed independently. The institution of an independent civil action against the offender under Articles 32, 33, 34 and 2176 of the Civil Code may proceed independently of the criminal case and at the same time without suspension of either proceeding. Recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission may be prosecuted separately even without a reservation. The reservation and waiver herein refers only to the civil action for the recovery of civil liability arising from the offense charged (DMPI Employees Credit Coop vs. Velez, G.R. No. 129282, Nov. 29, 2001).


145
MEMORY AID
PURPOSE To prevent the offended party from recovering damages twice for the same act or omission. Section 4. Effect of death on civil actions. AFTER arraignment and during the pendency of the criminal action extinguishes the civil liability arising from the delict. BEFORE arraignment - the case shall be DSMISSED without prejudice to any civil action the offended party may file against the estate of the deceased. However, the independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. Section 7. Elements of prejudicial question. Prejudicial Question - that which arises in a case, the resolution of which is the logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. Rationale: decisions. to avoid two conflicting
IN
REMEDIAL LAW
3. The resolution of such issue determines whether or not the criminal action may proceed. WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION 1. Office of the prosecutor; or 2. court conducting the preliminary investigation; or 3. court where the criminal action has been filed for trial at any time before the prosecution rests. RULE 112 PRELIMINARY INVESTIGATION Section 1. Preliminary Investigation defined; when required. Preliminary Investigation - is an inquiry or proceeding to determine whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. (Sec. 1, Rule 112) Preliminary Investigation is required to be conducted BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine. There is NO right of preliminary investigation under Section 7, Rule 112 when a person is LAWFULLY arrested unless there is a waiver of the provisions of Article 125 of the Revised Penal Code. HOWEVER, the accused can ask for Preliminary Investigation in the following cases: 1. if a person is arrested, he can ask for preliminary investigation BEFORE the filing of the complaint/information BUT he must sign a waiver in
ELEMENTS OF A PREJUDICIAL QUESTION 1. The civil action must be instituted prior to the criminal action. 2. The civil action involves an issue similar or intimately related to the issue raised in the criminal action.


146
MEMORY AID
accordance with Article 125, RPC. 2. AFTER the filing of the information/complaint, the accused may, within 5 days from the time he learns of its filing ask for preliminary investigation. PURPOSES 1. to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof; 2. to preserve evidence and keep the witnesses within the control of the State; 3. to determine the amount of bail, if the offense is bailable. PRELIMINARY INVESTIGATION: PERSONAL STATUTORY RIGHT The right to preliminary investigation is a personal right covered by statute and may be waived expressly or by implication. Absence of preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused. REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION 1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground 2. Insist on a preliminary investigation 3. File a certiorari, if refused 4. Raise lack of preliminary investigation as error on appeal 5. File for prohibition As preliminary investigation is NOT a part of the trial, the dismissal of the case by the investigator will not constitute double jeopardy and will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another
IN
REMEDIAL LAW
(U.S. vs. to
preliminary investigation Marfori, 35 Phil. 666).
Section 2. Officers authorized conduct preliminary investigation.
PERSONS AUTHORIZED TO CONDUCT A PRELIMINARY INVESTIGATION 1. Provincial or city fiscal and their assistants 2. Judges of the MTC and MCTC 3. National and regional state prosecutors 4. Such other officers as may be authorized by law such as: the COMELEC, Ombudsman and PCGG
Section 3. Procedure
Filing of the complaint accompanied by the affidavits and supporting documents.
Within 10 days after the filing, the investigating officer shall either dismiss or issue subpoena.
If subpoena is issued, respondent shall submit a counter-affidavit and other supporting documents within 10 days from receipt thereof.
Hearing (optional). It shall be held within 10 days from submission of counter-affidavits or from the expiration of the period of their submission.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Resolution of Special investigating prosecutor Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
(Sec. 4 & 5).

147
MEMORY AID
IN
REMEDIAL LAW
If respondent cannot be subpoenaed, or if subpoenaed but does not submit his counter-affidavit within 10 days, investigating officer shall resolve the complaint based on the evidence presented by the complainant. RIGHTS OF RESPONDENT IN A PRELIMINARY INVESTIGATION 1. to submit counteraffidavits 2. to examine evidence submitted by the complainant 3. to be present in the clarificatory hearing.
If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested and hold him for trial. If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of warrant of arrest. The RTC judge need NOT personally examine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to: 1. Personally evaluate the report and the supporting documents submitted during the preliminary investigation by the fiscal; and 2. On the basis thereof he may: a) Dismiss; b) Issue warrant; or c) Require further affidavits. INSTANCES WHEN MTC MAY CONDUCT PRELIMINARY INVESTIGATION: 1. cases cognizable by the RTC may be filed with the MTC for preliminary investigation; 2. cases cognizable by the MTC because it is an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. In either situation, the MTC is authorized to issue a warrant of arrest if there is necessity of placing the respondent under immediate custody, in order not to frustrate the ends of justice. CONDITIONS BEFORE THE INVESTIGATING MUNICIPAL TRIAL JUDGE CAN ISSUE A WARRANT OF ARREST (Herrera, p. 282) 1. Have examined in writing and under oath the complainant and his witnesses by searching questions and answers; searching questions and answers such questions as may have the
The Rules do not require the presence of the respondent in the Preliminary Investigation, what is required is that he be given the opportunity to controvert the evidence of the complainant by submitting counter-affidavits. Section 6. When warrant of arrest may issue Probable Cause - presupposes a reasonable ground for belief in the existence of facts warranting the proceedings complained of; - an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime charged.


148
MEMORY AID
tendency to show the commission of the crime and the perpetrator thereof; 2. Be satisfied that a probable cause exists; and 3. That there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice. If the MTC judge found probable cause but did not believe that the aforesaid conditions were met, he cannot be compelled by mandamus to issue the same. REMEDY: The provincial fiscal, if he believes that the accused should be immediately placed in custody, may file the corresponding information so that the RTC may issue the necessary warrant of arrest (Samulde vs. Salvani, Jr., G.R. No. 78606, Sept. 26, 1988). While the judge may rely on the fiscals certification thereof, the same is NOT conclusive on him as the issuance of said warrant calls for the exercise of judicial discretion and, for that purpose, the judge may require the submission of affidavits of witnesses to aid him in arriving at the proper conclusion, OR he may require the fiscal to conduct further preliminary investigation or reinvestigation. INSTANCES WHEN WARRANT OF ARREST NOT NECESSARY 1. if the accused is already under detention; 2.if the complaint or information was filed after the accused was lawfully arrested without warrant; 3. if the offense is punishable by fine only. Section 7. When accused lawfully arrested without warrant. TWO SITUATIONS CONTEMPLATED UNDER THIS RULE: 1. When a person is lawfully arrested without a
IN
REMEDIAL LAW
warrant for an offense requiring a preliminary investigation (sec. 1, Rule 112) and no complaint or information has yet been filed, he may ask for a preliminary investigation by signing a waiver of the provisions of Art. 125 of the RPC in the presence of his counsel. 2. When the complaint or information was filed without preliminary investigation, the accused may, within 5 days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. The 5-day period is MANDATORY, failure to file the motion within the said period amounts to waiver of the right to ask for preliminary investigation. Where the information was amended without a new preliminary investigation having been conducted, the 5-day period is computed from the time the accused learns of the filing of said amended information. Where the trial court has granted a motion for reinvestigation, it must hold in abeyance the arraignment and trial of the the accused until the prosecutor shall have conducted and made a report on the result of such reinvestigation. The right to bail pending Preliminary Investigation under Section 7, Rule 112, a person lawfully arrested may post bail before the filing of the information or even after its filing without waiving his right to preliminary investigation, provided that he asks for a preliminary investigation by the proper officer within the period fixed in the said rule (People vs. Court of Appeals, May 29, 1995). Section 8. Records


149
MEMORY AID
Records of the preliminary investigation shall NOT automatically form part of the records of the case. Courts are not compelled to take judicial notice thereof. It must be introduced as an evidence. Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. PROCEDURE TO BE FOLLOWED IN CASES WHICH DO NOT REQUIRE PRELIMINARY INVESTIGATION 1. Evaluate the evidence presented 2. Conduct searching questions or answers 3. Require the submission of additional evidence For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where the accused fails to appear after being summoned. If the complaint is filed with the prosecutor involving an offense punishable by imprisonment of less than 4 years, 2 months and 1 day, the procedure in Rule 112, Section 3 (a) shall be observed. If the complaint is filed with the MTC, the same procedure under Rule 112, Section 3 (a) shall be observed. RULE 113 ARREST Section 1. Definition of arrest. Arrest the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1 Rule 113). Modes of Arrest 1. arrest by virtue of a warrant 2. arrest without a warrant under exceptional circumstances
IN
REMEDIAL LAW
as may be provided by statute (Sec. 5, Rule 113). ESSENTIAL REQUISITES OF A VALID WARRANT OF ARREST 1. It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce 2. The warrant must particularly describe the person to be seized A warrant of arrest has NO expiry date. It remains valid until arrest is effected or warrant is lifted. REMEDY FOR WARRANTS IMPROPERLY ISSUED Where a warrant of arrest was improperly issued, the proper remedy is a petition to quash it, NOT a petition for habeas corpus, since the court in the latter case may only order his release but not enjoin the further prosecution or the preliminary examination of the accused (Alimpoos vs. Court of Appeals, 106 SCRA 159). Posting of bail does not bar one from questioning illegal arrest (Section 26, Rule 114, Rules of Court). Section 2. Arrest; how made. MODES OF EFFECTING ARREST 1. By an actual restraint of the person to be arrested. 2. By his submission to the custody of the person making the arrest. Upon arrest, the following may be confiscated from the person arrested: 1. Objects subject of the offense or used or intended to be used in the commission of the crime; 2. Objects which are the fruits of the crime;


150
MEMORY AID
3. Those which might be used by the arrested person to commit violence or to escape; 4. Dangerous weapons and those which may be used as evidence in the case. Section 5. Arrest without warrant; when lawful LAWFUL WARRANTLESS ARREST 1. When, IN HIS PRESENCE, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (in flagrante delicto arrests); 2. When an offense has in fact just been committed, and he has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be arrested has committed it; (Doctrine of Hot Pursuit) 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 4. Where a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule 113); 5. By the bondsman for the purpose of surrendering the accused (Sec. 23, Rule 114); and 6. Where the accused attempts to leave the country without permission of the court (Sec. 23, Rule 114). If the arrest was effected without warrant, the arresting officer must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under Article 124 of the RPC. RULES ON ILLEGALITY OF ARREST 1. An accused who enters his plea of NOT guilty and
IN
REMEDIAL LAW
participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as the accused, in this case, has voluntarily submitted himself to the jurisdiction of the court. 2. Illegality of warrantless arrest maybe cured by filing of an information in court and the subsequent issuance by the judge of a warrant of arrest. 3. Once a person has been duly charged in court, he may no longer question his detention by petition for habeas corpus, his remedy is to quash the information and/or the warrant of arrest. Section 6. Time of making arrest. Unlike a search warrant which must be served only in daytime, an arrest may be made on any day and at any time of the day or night, even on a Sunday. This is justified by the necessity of preserving the public peace. Section 7. Method of arrest of officer by virtue of warrant. Under this rule, an arrest may be made even if the police officer is not in possession of the warrant of arrest (Mallari vs. Court of Appeals, 265 SCRA 456). Exhibition of the warrant prior to the arrest is not necessary. However, if after the arrest, the person arrested so requires, the warrant shall be shown to him as soon as practicable. Section 8. Method of arrest by officer without warrant. Section 9. Method of arrest by private person. Citizens arrest - arrest effected by a private person. Method of arrest Exception to the rule on


151
MEMORY AID
giving information
Sec. 7 The officer shall inform the person to be arrested the cause of the arrest and the fact that the warrant has been issued for his arrest. Note: The officer need not have the warrant in his possession at the time of the arrest BUT must show the same after the arrest, if the person arrested so requires. Sec. 8 The officer shall inform the person to be arrested of his authority and the cause of the arrest w/out a warrant 1. when the person to be arrested flees; 2. when he forcibly resists before the officer has an opportunity to inform him; and 3. when the giving of such information will imperil the arrest.
IN
REMEDIAL LAW
person to be arrested is engaged in the commission of an offense or is pursued immediately its commission; 2. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and 3. when the giving of such information will imperil the arrest.
person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. Note: Private person must deliver the arrested person to the nearest police station or jail, otherwise, he may be held criminally liable for illegal detention.
Section 10. assistance.
Officer
may
summon
Only an officer making the arrest is governed by the rule. It does not cover a private individual making an arrest.
1. when the person to be arrested is engaged in the commission of an offense or is pursued immediately its commission; 2. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and 3. when the giving of such information will imperil the arrest. 1. when the
Section 11. Right of officer to break into building or enclosure. Requisites before an officer can break into a building or enclosure to make an arrest: 1. That the person to be arrested is or is reasonably believed to be in said building; 2. That he has announced his authority and purpose for entering therein; 3. That he has requested and been denied admittance. Generally, a lawful arrest may be made anywhere, even on private property or in a house. This rule is applicable both where the arrest is under a warrant, and where there is valid warrantless arrest. Section 12. Right to break out of the building or enclosure to effect release.
Sec. 9
The private


152
MEMORY AID
A private person making an arrest CANNOT break in or out of a building or enclosure because only officers are allowed by law to do so. Section 13. Arrest after escape or rescue. Where a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the country. The pursuit must be immediate. Section 14. Right of Attorney relative to visit person arrested. or Forms of bail: 1. 2. 3. 4. BAILBOND
An obligation under seal given by the accused with one or more sureties, and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform
IN
REMEDIAL LAW
corporate surety property bond cash deposit recognizance RECOGNIZANCE

an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act;
RA 7438 defined certain rights of persons arrested, detained, or under custodial investigation, with the penalties for violations thereof. RULE 114 BAIL Section 1. Bail defined. Bail -- the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions specified by the rule (Sec. 1, Rule 114).
Prosecution witnesses may also be required to post bail to ensure their appearance at the trial of the case where: 1. there is a substitution of information (Sec. 4, Rule110), and 2. where the court believes that a material witness may not appear at the trial (Sec. 14, Rule 119). Section 2. Conditions of the bail; requirements. CONDITIONS OF BAIL 1. The undertaking shall be effective upon approval, and, unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the RTC, irrespective of whether the case was originally filed in or appealed to it; 2. The accused shall appear before the proper courts whenever so required by the court or these Rules; 3. The failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver
A person is in the custody of law when he has been either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law (Section 13, Article III, 1987 Constitution).


153
MEMORY AID
of his right to be present thereat. In such case, the trial may proceed in absentia; 4. The bondsman shall surrender the accused to court for execution of the final judgment. No additional conditions can be imposed. A detention prisoner who escaped waives his right to cross-examination (Jimenez v. Nazareno). By filing a fake bail bond, an appellant is deemed to have escaped from confinement during the pendency of his appeal and in the normal course of things, his appeal should be dismissed. No release or transfer except on court order or bail. No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail (Sec. 3). Section 4. Bail, a matter of right; exception. When a matter of right: 1. before or after conviction in the lower courts; AND 2. before conviction by the RTC, EXCEPT when the imposable penalty is death, reclusion perpetua or life imprisonment and evidence of guilt is strong. In instances where bail is a matter of right and the bail to be granted is based on the recommendation of the prosecution as stated in the information or complaint, a hearing is NOT necessary. But where, however, there is a reduction of bail as recommended or after conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment wherein the grant of bail is discretionary, there must be a
IN
REMEDIAL LAW
hearing before a bail is granted in order to afford the prosecution the chance to oppose it (Bangayan vs. Butacan, 345 SCRA 301). The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However, where the grant of bail is discretionary, the prosecution may show proof to deny the bail. An extraditee is not entitled to bail. The Constitutional provision on Bail as well as Sec. 4 of Rule 114 applies only when a person has been arrested and detained for violation of Philippine Criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal (Govt. of US vs. Judge Purganan, Sept. 24, 2002). Section 5. Bail, discretionary. when
RULES ON AVAILABILITY OF BAIL 1. Regardless of stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or an offense punishable by reclusion perpetua AND the evidence of guilt is strong (Sec. 7); 2. Before and after conviction by the MTC, Municipal Trial Court or MCTC, bail is a matter of right (Sec.4). 3. Before conviction by the RTC whether in the exercise of its original or appellate jurisdiction, bail is a matter of right. (Sec.4) 4. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary (Sec. 5); 5. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not more than 20 years is imposed, and not one of the circumstances below is present


154
MEMORY AID
and proved, bail is a matter of discretion (Sec.5). a) Recidivism, quasirecidivism or habitual delinquency or commission of crime aggravated by the circumstances of reiteration. b) Previous escape from legal confinement, evasion of sentence or violation of the conditions of bail without valid justification. c) Commission of the offense while on probation, parole or under conditional pardon d) Circumstance of the accused or his case indicates the probability of flight if released on bail e) Undue risk of commission of another crime by the accused during pendency of appeal. 6. After conviction by the RTC imposing a penalty of imprisonment exceeding 6 years but not more than 20 years and any of the circumstance enumerated above and other similar circumstance is present and proved, no bail shall be granted (Sec.5); 7. After judgment has become final unless accused applied for probation before commencing to serve sentence of penalty and offense within purview of probation law (Sec. 24). Section 6. Capital Offense, defined. Capital Offense is an offense which, under the law existing at the time of its commission AND at the time of the application to be admitted to bail, may be punished with death. If the law at the time of commission does not impose the death penalty, the subsequent amendment of the law increasing the penalty cannot apply to the case, otherwise it would be ex post
IN
REMEDIAL LAW
facto, and penalties are determined by the law at the time of the commission of the offense. If the law at the time of the application for bail has amended the prior law which imposed the death penalty by reducing such penalty, such favorable law generally has a retroactive effect. Section 7. Capital Offense not bailable. Capital offense or those punishable by reclusion perpetua, life imprisonment or death are NOT BAILABLE when evidence of guilt is strong. EXCEPTION: If the accused charged with a capital offense is a minor. Section 8. Burden of proof in bail application. The hearing should be summary or otherwise in the discretion of the court but the right of the prosecution to control the quantum of evidence and the order of presentation of witnesses must be equated with the purpose of the hearing to determine the bailability of the accused. The burden of proving that the evidence of guilt is strong lies within the fence of the prosecution. (Comia vs. Antona, 337 SCRA 656) Evidence of guilt is strong when proof is evident or the presumption of guilt is strong. The test is NOT whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows
shows evident guilt presumption of guilt.
or
great
Section 9. Amount of bail; guidelines. FACTORS TO BE CONSIDERED IN FIXING THE REASONABLE AMOUNT OF BAIL (NOT EXCLUSIVE) 1. Financial ability of the accused to give bail;


155
MEMORY AID
2. Nature and circumstances of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Age and health of the accused; 6. Weight of evidence against the accused; 7. Probability of the accused appearing at the trial; 8. Forfeiture of other bail; 9. The fact that the accused was a fugitive from justice when arrested; and 10. Pendency of other cases when the accused is on bail Bail must not be in a prohibitory amount. Excessive bail is not to be required for the purpose of preventing the accused from being admitted to bail. Section 11. Property, how posted. Property Bond is an undertaking constituted as a lien on the real property given as security for the amount of the bail (sec11); It is required that the annotation of a lien on the land records of the property posted as bail, otherwise the property bail bond shall be cancelled. Section 12. Qualifications of sureties in property bond. Philippine residency is required of a property bondsman. The reason for this is that bondsmen in criminal cases, residing outside of the Philippines, are not within the reach of the processes of its courts (Villaseor vs. Abano, 21 SCRA 312).
IN
REMEDIAL LAW
possesses the qualification to act as such, especially his financial worth. The justification being under oath, any falsity introduced thereto by the surety upon a matter of significance would render him liable for perjury. Section 14. Deposit of cash as bail. EFFECT OF DEPOSITING CASH AS BAIL Accused shall be discharged from custody as it is considered as bail. Section 15. Recognizance Recognizance - an obligation of record, entered into before some court or officer authorized to take it with a condition to do some particular act and the accused is often allowed to obligate himself to answer the charge. Section 16. Bail when not required; reduced bail on recognizance. Instances wherein the accused may be released on recognizance, without putting bail or on reduced bail: CAN BE RELEASED WITHOUT BAIL
1.
Offense charged is violation of an ordinance, light felony or a criminal offense, the imposable penalty wherefore does not exceed 6 months of imprisonment and/or fine of P 2,000 under R.A.6036. Where the accused has applied for probation and before the same has been resolved but no bail was filed or the accused is incapable of filing one, in which case he may be released on recognizance
2.
Section 13. Justification of sureties. The purpose of the rule requiring the affidavit of qualification by the surety before the judge, is to enable the latter to determine whether or not the surety


156
MEMORY AID
IN
REMEDIAL LAW
3. In case of a youthful offender held for physical or mental examination, trial or appeal, if unable to furnish bail and under the circumstances under PD 603, as amended
ON REDUCED BAIL OR ON HIS OWN RECOGNIZANCE
UNDER THE REVISED RULES ON SUMMARY PROCEDURE
A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the indeterminate sentence law or any modifying circumstance shall be released on reduced bail or on his own recognizance. General Rule: no bail Exception: 1. When a warrant of arrest is issued for failure to appear when required by the court 2. When the accused - is a recidivist; - is a fugitive from justice; - is charged with physical injuries - does not reside in the place where the violation of the law or ordinance is committed; or -has not reside in the place where the violation of the law or ordinance is committed; or -has no known residence
thereof, with another branch of the same court within the province or city. 2. Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, 3. the application therefor may be filed only in the particular court where the case is pending, whether for preliminary investigation, trial or appeal. 4. Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held. Section 18. Notice of application to prosecutor. Such notice is necessary because the burden of proving that the evidence of guilt is strong is on the prosecution and that the discretion of the court in admitting the accused to bail can only be exercised after the fiscal has been heard regarding the nature of the evidence in his possession. (People vs. Raba, 130 Phil. 384) Section 19. Release on bail. Once the accused has been admitted to bail, h is entitled to immediate release from custody. An officer who fails or refuses to release him from detention notwithstanding the approval by the proper court of his bailbond, may be held liable under Article 126 of the Revised Penal Code for delaying release. Section 20. Increase or reduction of bail. The guidelines provided for in Section 9, Rule 114, in fixing the amount of bail are also applicable in reducing or increasing the bail previously fixed. Where the offense is bailable as a matter of right, the mere probability that the accused will escape, or even if he had previously escaped while under
Section 17. Bail, where filed. 1. May be filed with the court where the case is pending, or in the absence or unavailability of the judge

157
MEMORY AID
detention, does not deprive him of his right to bail. The remedy is to increase the amount of the bail, provided such amount would not be excessive. (Sy Guan vs. Amparo, 79 Phil. 670) Section 21. Forfeiture of bail. Within 30 days from the failure of the accused to appear in person as required, the bondsmen must: a. PRODUCE the body of their principal or give the reason for his non-production; AND b. EXPLAIN why the accused did not appear before the court when first required to do so. The 30-day period granted to the bondsmen to comply with the two requisites for the lifting of the order of forfeiture cannot be shortened by the court but may be extended for good cause shown. . ORDER OF FORFEITURE VS. ORDER OF CONFISCATION 1. an ORDER OF FORFEITURE is conditional and interlocutory, there being something more to be done such as the production of the accused within 30 days as provided by the rules an order of forfeiture is not appealable 2. an ORDER OF CONFISCATION is not independent of the order of the order of forfeiture. It is a judgment ultimately determining the liability of the surety thereunder, and therefore final and execution may issue at once. Section 22. Cancellation of bailbond. INSTANCES WHEN BAIL BOND CAN BE CANCELLED 1. upon application by the bondsman with notice to the fiscal and upon surrender of the accused; and 2. upon proof that the accused died.
IN
REMEDIAL LAW
The bail bond is automatically cancelled upon the acquittal of the accused or dismissal of the case or execution of the final order of conviction, without prejudice to any liability on the bond incurred prior to their discharge. METHODS BY WHICH SURETIES MAY RELIEVE THEMSELVES FROM RESPONSIBILITIES a. Arrest the principal and deliver him to the proper authorities; b. They may cause his arrest to be made by any police officer or other person of suitable age or discretion; or c. By endorsing the authority to arrest upon a certified copy of the undertaking and delivering it to such officer or person Section 23. Arrest of accused out on bail. An accused released on bail may be rearrested without a warrant if he attempts to depart from the Philippines without prior permission of the court where the case is pending. Section 24. No bail judgment; exception. after final
GENERAL RULE: The finality of the judgment terminates the criminal proceeding. Bail becomes of no avail. The judgment contemplated is a judgment of conviction. The judgment is final if the accused does not appeal the conviction. No bail shall be granted after judgment, if the case has become final even if continued confinement of the accused would be detrimental or dangerous to his health. The remedy would be to submit him to medical treatment or hospitalization.
EXCEPTION: If the accused applies for probation he may be allowed temporary


158
MEMORY AID
liberty under his existing bail bond, or if no bail was filed, or is incapable of filing one, he may be released on recognizance to the custody of a responsible member of the community The application for probation must be filed within the period of perfecting an appeal. Such filing operates as a waiver of the right to appeal. The accused in the meantime, is entitled to be released on bail or recognizance. (Sec. 4, PD 968, as amended) Section 25. detainees. Court supervision of
IN
REMEDIAL LAW
A. TO BE PRESUMED INNOCENT In all criminal prosecutions, the accused is presumed innocent until the contrary is proved beyond reasonable doubt. Reasonable Doubt is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense. Equipoise rule where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused and must be acquitted. B. TO BE INFORMED OF THE NATURE AND THE CAUSE OF THE ACCUSATION AGAINST HIM. An accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right (People vs. Ortega, 276 SCRA 166). When a person is charged in a complaint with a crime and the evidence does not show that he is guilty thereof, but does show that he is guilty of some other crime or a lesser offense, the court may sentence e him for the lesser offense, PROVIDED the lesser offense is a cognate offense and is included in the complaint with the court. C. TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STAGE OF THE PROCEEDING
The employment of physical, psychological or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law (Section 19(2), Article III, 1987 Constitution). Section 26. Bail not a bar to objection on illegal arrest, lack of or irregular preliminary investigation. AN APPLICATION FOR OR ADMISSION TO BAIL SHALL NOT BAR THE ACCUSED a. from challenging the validity of his arrest OR b. legality of the warrant issued therefore, OR c. from assailing the regularity or questioning the absence of preliminary investigation of the charge against him, PROVIDED, he raises them before entering his plea. RULE 115 RIGHTS OF THE ACCUSED This rule enumerates the rights of a person accused of an offense, which are both constitutional as well as statutory, save the right to appeal, which is purely statutory in character. Section 1. Rights of the accused at the trial.
THE PRESENCE OF THE ACCUSED IS REQUIRED ONLY


159
MEMORY AID
1. During arraignment (Sec. 1b, rule 116) 2. Promulgation of judgment EXCEPT when the conviction is for a light offense, in which case, it may be pronounced in the presence of his counsel or a representative 3. When ordered by the court for purposes of identification Not applicable in SC and CA - The law securing to an accused person the right to be present at every stage of the proceedings has no application to the proceedings before the Court of Appeals and the Supreme Court nor to the entry and promulgation of their judgments The defendant need not be present in court during the hearing of the appeal. (Sec. 9 Rule 124) Accused may waive his right to be present during the trial. HOWEVER, his presence may be compelled when he is to be identified. (Aquino, Jr. vs. Military Commission, 63 SCRA 546) EFFECTS OF WAIVER OF THE RIGHT TO APPEAR BY THE ACCUSED 1. waiver of the right to present evidence; 2. prosecution can present evidence if accused fails to appear; 3. the court can decide without accuseds evidence. TRIAL IN ABSENTIA It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance AFTER ARRAIGNMENT despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. The accused may waive his right but not his duty or obligation to the court.
IN
REMEDIAL LAW
REQUIREMENTS FOR TRIAL IN ABSENTIA 1. accused has been arraigned 2. he has been duly notified of the trial 3. his failure to appear is unjustified An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him. (Gimenez vs. Nazareno, 160 SCRA 1) D. RIGHT TO COUNSEL The right covers the period beginning from custodial investigation, well into the rendition of the judgment and even on appeal. (People vs. Serzo, Jr., 274 SCRA 553) If during the investigation the assisting lawyer left, or come and go, the statement signed by the accused is still inadmissible because the lawyer should assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. (People vs. Morial, 363 SCRA 96) The right to counsel and the right to remain silent do not cease even after a criminal complaint/information has already been filed against the accused, AS LONG AS he is still in custody. The duty of the court to appoint a counsel de oficio when the accused has no legal counsel of choice and desires to employ the services of one is MANDATORY only at the time of arraignment. (Sec. 6 Rule 116) E. TO TESTIFY AS WITNESS IN HIS OWN BEHALF A denial of the defendants right to testify in his behalf would constitute an unjustifiable violation of his constitutional right. (People vs. Santiago, 46 Phil. 734)


160
MEMORY AID
If the accused testifies, he may be crossexamined but ONLY on matters covered by his direct examination, unlike an ordinary witness who can be crossexamined as to any matter stated in the direct examination or connected therewith (Section 6, Rule 132). His failure to testify is not taken against him but failure to produce evidence in his behalf is considered against him (U.S. vs. Bay, 97 Phil. 495). F. RIGHT AGAINST SELFINCRIMINATION The accused is protected under this rule from questions which tend to incriminate him, that is, which may subject him to penal liability. The right may be waived by the failure of the accused to invoke the privilege at the proper time, that is, AFTER the incriminating question is asked and before his answer; The privilege of the accused to be exempt from testifying as a witness involves a prohibition against testimonial compulsion only and the production by the accused of incriminating documents, and articles demanded from him. (U.S. vs. Tan Teng, 23 Phil. 145) EXCEPTIONS: immunity statutes such as: 1. RA 1379 Forfeiture of Illegally obtained wealth 2. RA 749 Bribery and Graft cases RIGHT OF THE ACCUSED AGAINST SELFINCRIMINATION VS. RIGHT OF THAT OF AN ORDINARY WITNESS The ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. G. RIGHT TO CONFRONT AND CROSSEXAMINE THE WITNESSES AGAINST HIM AT TRIAL
IN
REMEDIAL LAW
Confrontation is the act of setting a witness face-to-face with the accused so that the latter may make any objection he has to the witness, and the witness may identify the accused, and this must take place in the presence of the court having jurisdiction to permit the privilege of cross-examination. The main purpose of the right to confrontation is to secure the opportunity of cross-examination and the secondary purpose is to enable the judge to observe the demeanor of witnesses. In any criminal proceeding, the defendant enjoys the right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL The right to a speedy trial is intended to avoid oppression and to prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. The courts, in determining whether the right of the accused to a speedy trial has been denied, should consider such facts as the length of the delay, the accuseds assertion or non-assertion of his right, and the prejudice to the accused resulting from the delay. There is NO violation of the right where the delay is imputable to the accused. (Solis vs. Agloro, 64 SCRA 370) REMEDIES AVAILABLE TO THE ACCUSED WHEN HIS RIGHT TO A SPEEDY TRIAL IS VIOLATED 1. He should ask for the trial of the case not for the dismissal; 2. Unreasonable delay of the trial of a criminal case as to make the detention of defendant illegal gives ground for habeas corpus as a remedy for obtaining release so as to avoid detention for a reasonable period of time


161
MEMORY AID
3. Accused would be entitled to relief in a mandamus proceeding to compel the dismissal of the information. IMPARTIAL TRIAL Due process of law requires a hearing before an impartial and disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. (Mateo, Jr. vs. Villaluz, 50 SCRA 180) Public trial one held openly or publicly; it is sufficient that the relatives and friends who want to watch the proceedings are given the opportunity to witness the proceedings. EXCLUSION OF THE PUBLIC IS VALID WHEN: 1. evidence to be produced is offensive to decency or public morals; 2. upon motion of the accused; (Sec. 21, Rule 119) RULE ON TRIAL BY PUBLICITY The right of the accused to a fair trial is not incompatible to a free press. Pervasive publicity is not per se as prejudicial to the right to a fair trial. To warrant a finding of prejudicial publicity, there must be allegations and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. (People vs. Teehankee, 249 SCRA 54) I. RIGHT TO APPEAL ON ALL CASES ALLOWED BY LAW AND IN THE MANNER PRESCRIBED BY LAW. The right to appeal from a judgment of conviction is fundamentally of statutory origin. It is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. WAIVER OF THE RIGHT TO APPEAL The right to appeal is personal to the accused and similarly to other rights of kindred nature, it may be waived either expressly or by implication. HOWEVER,
IN
REMEDIAL LAW
where death penalty is imposed, such right cannot be waived as the review of the judgment by the COURT OF APPEALS is automatic and mandatory (A.M. NO. 00-5-03-SC). THE SPEEDY TRIAL ACT OF 1998 (RA 8493) DUTY OF THE COURT AFTER ARRAIGNMENT OF AN ACCUSED Court SHALL order a pre-trial conference to consider the following: 1. plea bargaining; 2. stipulation of facts; 3. marking for identification of evidence of parties; 4. waiver of objections to admissibility of evidence; and 5. such other matter as will promote a fair and expeditious trial; TIME LIMIT FOR THE TRIAL OF CRIMINAL CASES: SHALL NOT EXCEED 180 days from the first day of trial, HOWEVER, this rule is NOT ABSOLUTE, for the law provides for the following EXCEPTIONS: 1. those governed by the Rules on Summary Procedure; or 2. where the penalty prescribed by law DOES NOT EXCEED 6 months imprisonment or a fine of P1,000 or both; 3. those authorized by the Chief Justice of the SC; PERIOD FOR ARRAIGNMENT OF THE ACCUSED Within 30 days from the filing of the information, or from the date the accused appealed before the justice/judge/court in which the charge is pending, whichever date last occurs.
WHEN SHALL TRIAL COMMENCE AFTER ARRAIGNMENT Within 30 days from arraignment, HOWEVER, it may be extended BUT only:


162
MEMORY AID
1. for 180 days for the first 12 calendar month period from the effectivity of the law; 2. 120 days for the second 12 month period; and 3. 80 days for the third 12 month period. RULE 116 ARRAIGNMENT AND PLEA Section 1. Arraignment and plea; how made. Arraignment the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him. WHERE AND HOW MADE: 1. Before the court where the complaint or information has been filed or assigned for trial; 2. in open court, by the judge or clerk by furnishing the accused a copy of the complaint or information with the list of the witnesses, reading it in a language or dialect known to him and asking him of his plea; RULES: 1. Trial in absentia is allowed only AFTER arraignment; 2. Judgment is generally void if the accused has not been arraigned; 3. There can be no arraignment in absentia (accused must personally enter his plea); 4. if the accused went to trial without arraignment, but his counsel had the opportunity to cross-examine the witness of the prosecution and after the prosecution he was arraigned the defect was cured;
IN
REMEDIAL LAW
except if the amendment is only as to form; Plea the matter which the accused, on his arraignment, alleges in answer to the charge against him. PERIOD TO PLEA When the accused is under preventive detention: his case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint and the accused arraigned within 10 days from the date of the raffle. The pre-trial conference of his case shall be held within 10 days after arraignment. When the accused is NOT under preventive detention: unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash, or for bill of particulars, or other causes justifying suspension of the arraignment, shall be excluded in computing the period. WHEN SHOULD A PLEA OF NOT GUILTY BE ENTERED 1. when the accused so pleaded 2. when he refuses to plead 3. where in admitting the act charged, he sets up matters of defense or with lawful justification 4. when he enters a conditional plea of guilt 5. where, after a plea of guilt, he introduces evidence of selfdefense or other exculpatory circumstances 6. when the plea is indefinite or ambiguous An unconditional plea of guilt admits of the crime and all the attendant circumstances alleged in the information including the allegations of conspiracy and warrants of judgment of conviction
If an information is amended MATERIALLY, arraignment on the amended information is MANDATORY,


163
MEMORY AID
without need of further evidence EXCEPT: (CAI DN) 1. Where the plea of guilty was compelled by violence or intimidation. 2. When the accused did not fully understand the meaning and consequences of his plea. 3. Where the information is insufficient to sustain conviction of the offense charged. 4. Where the information does not charge an offense, any conviction thereunder being void. 5. Where the court has no jurisdiction. Section 2. Plea of Guilty to a lesser offense. An accused may enter a plea of guilty to a lesser offense PROVIDED that there is consent of the offended party and the prosecutor to the plea of guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but BEFORE trial, the accused may still be allowed to plead guilty to a lesser offense after withdrawing his plea of not guilty. In this plea of guilty to a lesser offense, no amendment of the complaint or information is necessary. If the accused entered a plea to a lesser offense WITHOUT the consent of the offended party and the prosecutor AND he was convicted, his subsequent conviction of the crime charged would NOT place him in Double Jeopardy. Section 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall: 1. conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea;
IN
REMEDIAL LAW
2. require the prosecution to prove his guilt and the precise degree of his culpability; 3. ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. To constitute searching inquiry, the questioning must focus on: 1. the voluntariness of the plea; and 2. Whether the accused understood fully the consequence of his plea. Section 5. Withdrawal of improvident plea of guilty. Plea of Guilty an unconditional admission of guilt, freely, voluntarily and made with full knowledge of the consequences and meaning of his act and with a clear understanding of the precise nature of the crime charged in the complaint or information; INSTANCES OF IMPROVIDENT PLEA 1. plea of guilty was compelled by violence or intimidation 2. the accused did not fully understand the meaning and consequences of his plea 3. insufficient information to sustain conviction of the offense charged 4. information does not charge an offense, any conviction thereunder being void 5. court has no jurisdiction At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. The withdrawal of a plea of guilty is not a matter of right to the accused but of sound discretion to the trial court. (People vs. Lambrino, 103 Phil. 504)


164
MEMORY AID
Section 6. Duty of the court to inform accused of his right to counsel. DUTIES OF THE COURT WHEN THE ACCUSED APPEARS BEFORE IT WITHOUT COUNSEL 1. It must inform the defendant that it is his right to have an attorney before being arraigned; 2. After giving him such information, the court must ask him if he desires the aid of an attorney; 3. If he desires and is unable to employ one, the court must assign an attorney de oficio to defend him; and 4. If the accused desires to procure an attorney of his own, the court must grant him reasonable time therefor. Section 7. Appointment of counsel de oficio. PURPOSE To secure to the accused, who is unable to engage the services of an attorney of his own choice, effective representation by making it imperative on the part of the court to consider in the appointment of counsel de oficio, the gravity of the offense and the difficulty of the questions likely to arise in the case vis-vis the ability and experience of the prospective appointee. Section 8. Time for counsel de oficio to prepare for arraignment. As to what is reasonable time, it depends upon the circumstances surrounding the case like the gravity of the offense, complexity of the allegations in the complaint or information, whether a motion to quash or a bill of particulars has to be filed, and other similar considerations.
IN
REMEDIAL LAW
Section 9. Bill of particulars. Accused may, AT or BEFORE arraignment, move for a bill of particulars to enable him properly to plead and to prepare for trial. Just in civil cases, the bill of particulars here should be considered an integral part of the complaint or information which it supplements. The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for a bill of particulars, not a motion to quash. The failure to ask for Bill of Particulars amounts to a waiver of such right. Section 10. Production or inspection of material evidence in possession of prosecution. Section 11. Suspension of arraignment GROUNDS FOR SUSPENSION 1. the accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; 2. there exists a valid prejudicial question; and 3. a petition for review of the resolution of the prosecutor is pending at the Department of Justice or the Office of the President; provided that the period of suspension shall not exceed 60 days counted from the filing of the petition. RULE 117 MOTION TO QUASH Section 1. Time to move to quash. Motion to Quash - this presupposes that the accused hypothetically admits the


165
MEMORY AID
facts alleged, hence the court in resolving the motion cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information, except those admitted by the prosecution. GENERAL RULE: The accused may move to quash the complaint or information at any time BEFORE entering his plea. EXCEPTION - Instances where a motion to quash may be filed AFTER plea: 1. failure to charge an offense 2. lack of jurisdiction over the offense charged 3. extinction of the offense or penalty 4. the defendant has been in former jeopardy. Motion to Quash
filed before the defendant enters his plea Does not go into the merits of the case but is anchored on matters not directly related to the question of guilt or innocence of the accused Governed by Rule 117 of the Rules of Criminal Procedure
IN
REMEDIAL LAW
EXCEPT lack of jurisdiction over the offense charged and when the information does not charge an offense. A motion to suspend the issuance of a warrant of arrest should be considered as a motion to quash if the allegations therein are to the effect that the facts charged in the information do not constitute an offense. RESOLUTION OF A MOTION TO QUASH A motion to quash must be resolved BEFORE trial and cannot defer the hearing and determination of said motion until trial on the merits as it would impair the right of the accused to speedy trial. It may also be resolved at the preliminary investigation since the investigating officer or judge has the power to either dismiss the case or bind the accused over for trial by the proper court, depending on its determination of lack or presence of probable cause. Section 3. Grounds. 1. That the facts charged do not constitute an offense; 2. That the court trying the case has no jurisdiction over the offense charged; 3. That the court trying the case has no jurisdiction over the person of the accused; 4. That the officer who filed the information had no authority to do so; 5. That it does not conform substantially to the prescribed form; 6. That more that one offense is charged except when a single punishment for various offenses is prescribed by law; 7. That the criminal action or liability has been extinguished; 8. That it contains averments which, if true would constitute a legal excuse or justification; and 9. That the accused has been previously convicted or acquitted of the offense charged, or the case against him
Demurrer to Evidence
filed after the prosecution has rested its case based upon the inadequacy of the evidence adduced by the prosecution in support of the accusation
governed by Rule 119 of the Rules of Criminal Procedure
Section 2. Form and contents. FORM AND CONTENTS OF A MOTION TO QUASH 1. in writing 2. signed by the accused or his counsel 3. shall specify distinctly the factual and legal grounds therefor. The court shall consider no grounds other than those stated in the motion,

166
MEMORY AID
was dismissed or otherwise terminated without his express consent. Section 4. Amendment of complaint or information If an alleged defect in the complaint or information, which is the basis of a motion to quash, can be cured by amendment, the court shall order the amendment instead of quashing the complaint or information. If, after the amendment, the defect is still not cured, the motion to quash should be granted. Section 5. Effect of sustaining the motion to quash. EFFECTS IF COURT SUSTAINS THE MOTION TO QUASH 1. If the ground of the motion is either: a) that the facts charged do not constitute an offense; or b) that the officer who filed the information had no authority to do so, or c) that it does not conform substantially to the prescribed form; or d) that more than one offense is charged, the court may order that another information be filed or an amendment thereof as the case may be within a definite period. If such order is NOT MADE, or if having been made, another information is NOT FILED within a time to be specified in the order, or within such time as the court may allow, the accused, if in custody, shall be discharged therefrom, unless he is also in custody on some other charge. 2. If the motion to quash is sustained upon any of the following grounds: a) that a criminal action or liability has been extinguished;
IN
REMEDIAL LAW
b) that it contains averments which, if true, would constitute a legal excuse or justification; or c) that the accused has been previously convicted or acquitted of the offense charged, the court must state, in its order granting the motion, the release of the accused if he is in custody or the cancellation of his bond if he is on bail. 3. If the ground upon which the motion to quash was sustained is that the court has NO jurisdiction over the offense, the better practice is for the court to remand or forward the case to the proper court, not to quash the complaint or information. The prosecution may elevate to the Higher Courts an order granting a motion to quash. PROCEDURE IF MOTION TO QUASH IS DENIED 1. accused should plead; 2. accused should go to trial without prejudice to the special defenses he invoked in the motion; 3. appeal from the judgment of conviction, if any, and interpose the denial of the motion as an error. An order denying a motion to quash is INTERLOCUTORY and NOT APPEALABLE. Appeal in due time, as the proper remedy, implies a previous conviction as a result of a trial on the merits of the case and does not apply to an interlocutory order denying a motion to quash. The denial by the trial court of a motion to quash CANNOT be the subject of a petition for certiorari, prohibition or mandamus in another court of coordinate rank.


167
MEMORY AID
IN
REMEDIAL LAW
Section 6. Order sustaining the motion to quash not a bar to another prosecution. A motion SUSTAINING the motion to quash is NOT a bar to another prosecution for the same offense UNLESS: 1. the motion was based on the ground that the criminal action or liability has been extinguished, AND 2. that the accused has been previously convicted or in jeopardy of being convicted or acquitted of the offense charged. Section 7. Former conviction acquittal; double jeopardy. or
3. a frustration of the said offense, or 4. any offense which necessarily includes or is necessarily included in the first offense charged. The discharge of a defendant on a preliminary investigation is NOT such an adjudication in his favor as will bar subsequent prosecution for the offense. This is because, a preliminary investigation is not a trial and does not have for its object that of determining definitely the guilt of the accused. Further, the accused ha snot yet been arraigned. DISMISSAL vs. ACQUITTAL Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendants guilt beyond reasonable doubt; but Dismissal does not decide the case on the merits or that the defendant is not guilty. If an act is punished by a law and an ordinance, even if they are considered as different offenses, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. If a single act is punished by two different provisions of law or statutes, but each provision requires proof of an additional fact which the other does not so require, neither conviction nor acquittal in one will bar a prosecution for the other. (Perez vs. Court of Appeals, 163 SCRA 236) TESTS FOR DETERMINING WHETHER THE TWO OFFENSES ARE IDENTICAL: A. SAME OFFENSE TEST - There is IDENTITY between two offenses not only when the second offense is exactly the same as the first, but
Double Jeopardy means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. REQUISITES FOR DOUBLE JEOPARDY UNDER SECTION 7 It is necessary that in the first case that1. the complaint or information or other formal charge was sufficient in form and substance to sustain a conviction; 2. the court had jurisdiction; 3. the accused had been arraigned and had pleaded; and 4. he was convicted or acquitted or the case was dismissed without his express consent; When all these circumstances are present, they constitute a BAR to a second prosecution for 1. the same offense, or 2. an attempt to commit the said offense, or


168
MEMORY AID
ALSO when the second offense is an attempt to or frustration of, OR is necessarily included in the offense charged in the first information. EXCEPTIONS TO THE IDENTITY RULE: 1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party; except when the offended party failed to appear during the arraignment. In any of these instances, such period of the sentence as may have been served by the accused under the former conviction shall be credited against and deducted from the sentence he has to serve should he be convicted under the subsequent prosecution. B. SAME EVIDENCE TEST - whether the facts as alleged in the second information, if proved, would have been sufficient to sustain the former information, or from which the accused may have been acquitted or convicted. Section 8. Provisional dismissal. GENERAL RULE: Where the case was dismissed provisionally with the consent of the accused, he CANNOT invoke double jeopardy in another prosecution therefor OR where the case was reinstated on a motion for reconsideration by the prosecution. EXCEPTIONS: Where the dismissal was actually an acquittal based on: a) lack or insufficiency of the evidence; or b) denial of the right to speedy trial, hence, even if the accused gave his express consent to such dismissal or moved for such
IN
REMEDIAL LAW
dismissal, such consent would be immaterial as such dismissal is actually an acquittal. REQUISITES 1. consent of the prosecutor 2. consent of the accused 3. notice to the offended party If a case is provisionally dismissed with the consent of the prosecutor and the offended party, the failure to reinstate it within the given period will make the dismissal permanent. PERIOD FOR REINSTATEMENT: a. offenses punishable by imprisonment not exceeding 6 years = ONE YEAR b. offenses punishable by imprisonment of more than 6 years = TWO YEARS Otherwise the dismissal shall be removed from being provisional and becomes permanent. Section 9. Failure to move to quash or to allege any ground therefor. All grounds for a motion to quash are WAIVED if NOT seasonably raised, EXCEPT: a) when the information does not charge an offense; b) lack of jurisdiction of the court; c) extinction of the offense or penalty; and d) double jeopardy. RULE 118 PRE-TRIAL Section 1. Pre-trial; criminal cases. mandatory in
Pre-trial is MANDATORY in all criminal cases. The court shall after arraignment and within 30 days from the time the court


169
MEMORY AID
acquires jurisdiction over the person of the accused, unless a shorter period is provided for by special laws or circular of the Supreme Court, order a pre-trial. MATTERS CONSIDERED IN PRE-TRIAL CONFERENCE a) plea bargaining; b) stipulation of facts; c) marking for identification of evidence of the parties; d) waiver of objections to admissibility of evidence; e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sections. 2 & 3, Circ. 3898). Plea bargaining the process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendants pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge. Section 2. Pre-trial agreement. Requisites before the pre-trial agreement can be used as evidence: 1. they are reduced to writing 2. the pre-trial agreement is signed by the accused and his counsel. The requirement in section 2 is intended to safeguard the right of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into, or which any person may ascribe to the accused without his knowledge, as he may have waived his presence at the pre-trial conference.
IN
REMEDIAL LAW
The omission of the signature of the accused and his counsel, as mandatorily required by the rules, renders the stipulation of facts inadmissible in evidence. Section 3. Non-appearance at pre-trial conference. The court may impose proper sanctions and penalties for non-appearance at pretrial conference by the counsel for the accused or the prosecutor without acceptable excuse. The sanctions or penalty may be in the form of reprimand, fine or imprisonment. Inasmuch as this is similar to indirect contempt of court, the penalty for indirect contempt may be imposed. PURPOSE To enforce the mandatory requirement of pre-trial in criminal cases. The accused is not the one compelled to appear, but only the counsel for the accused or the prosecutor. The principal reason why accused is not included in the mandatory appearance is the fear that to include him is to violate his constitutional right to remain silent. Section 4. Pre-trial order. After the pre-trial, the court issues an order reciting actions taken, facts stipulated and evidence marked, and thereafter the trial on the merits will proceed on matters not disposed of during the pre-trial. To prevent manifest injustice, however, the pre-trial order may be modified by the court, upon its own initiative or at the instance of any party. RULE 119 TRIAL Section 1. Time to prepare for trial.


170
MEMORY AID
Trial - the examination before a competent tribunal according to the laws of the land, of the facts put in issue in a case for the purpose of determining such issue. The trial shall commence within 30 days from receipt of the pre-trial order. Section 2. Continuous trial terminated; postponements. until
IN
REMEDIAL LAW
and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for trial well-defined at pre-trial and the whole proceedings terminated and ready for judgment within 90 days from the date of initial hearing, unless for meritorious reasons an extension is permitted. The system requires that the Presiding Judge: 1. adhere faithfully to the session hours prescribed by laws; 2. maintain full control of the proceedings; and 3. effectively allocate and use time and court resources to avoid court delays. The non-appearance of the prosecution at the trial, despite due notice, justified a provisional dismissal or an absolute dismissal depending upon the circumstances. Section 4. continuance. Factors for granting
CONTINUOUS TRIAL SYSTEM Trial once commenced shall continue from day to day as far as practicable until terminated; but it may be postponed for a reasonable period of time for good cause. LIMITATION OF THE TRIAL PERIOD It shall in no case exceed 180 days from the first day of the trial, except as otherwise provided by the Supreme Court. Requisites before a trial can be put-off on account of the absence of a witness: 1. that the witness is material and appears to the court to be so 2. that the party who applies has been guilty of no neglect 3. that the witnesses can be had at the time to which the trial is deferred and incidentally that no similar evidence could be obtained 4. that an affidavit showing the existence of the above circumstances must be filed. Remedies of accused where a prosecuting officer without good cause secures postponements of the trial of a defendant against his protest beyond a reasonable period of time: 1. mandamus to compel a dismissal of the information 2. if he is restrained of his liberty, by habeas corpus to obtain his freedom. The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed
PURPOSE: To control the discretion of the judge in the grant of continuance on his instance or on motion of any party litigant. Section 5. Time limit following an order for new trial. The trial shall commence within 30 days from the date the order for a new trial becomes final. Section 7. Public Attorneys duties where accused is imprisoned. These public attorneys enter their appearance in behalf of the accused upon his request or that of his relative or upon being appointed as counsel de oficio by the court. Section 8. Sanctions. Kinds:


171
MEMORY AID
a. criminal b. administrative c. contempt of court
IN
REMEDIAL LAW
to, but not where the change in the order of the trial was timely objected by the defense. Where the order of the trial set forth under this section was not followed by the court to the extent of denying the prosecution an opportunity to present its evidence, the judgment is a nullity. (People vs. Balisacan) Section 12. Application for examination of witness for accused before trial. Accused may have his witness examined conditionally in his behalf BEFORE trial upon motion with notice to all other parties. The motion must state: 1. name and residence of witness 2. substance of testimony 3. witness is so sick to afford reasonable ground to believe that he will not be able to attend the trial or resides more that 100 km and has no means to attend the same, or other similar circumstances exist that would make him unavailable or prevent him from attending trial. Section 13. Examination of defense witness; how made. If the court is satisfied that the examination of witness is necessary as provided in SECTION 4, order shall be made and a copy served on the fiscal. The examination shall be taken before any judge or if not practicable any member of the Bar in good standing designated by the trial court, or by a lower court designated by a court of superior jurisdiction which issue the order. Section 14. Bail to secure appearance of material witness. If the court is satisfied, upon proof or oath, that a material witness will not
Section 11. Order of Trial ORDER OF TRIAL: 1. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability 2. The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. 3. The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue 4. Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. 5. When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. GENERAL RULE: The order in the presentation of evidence must be followed. The accused may not be required to present his evidence first before the prosecution adduces its own proof. EXCEPTION: Where a reverse procedure was adopted without the objection of the defendant and such procedure did not prejudice his substantial rights, the defect is not a reversible error. A departure from the order of the trial is not reversible error as where it was agreed upon or not seasonably objected


172
MEMORY AID
testify when so required, it may on motion of either party order the witness to post bail in such sum as may be deemed proper. Should the witness refuse to post such bail as required, the court may commit him to prison until he complies or is legally discharged after his testimony has been taken. Section 15. Examination of witness for the prosecution. The conditional examination of prosecution witnesses shall be conducted before the judge or the court where the case is pending and in the presence of the accused, unless he waived his right after reasonable notice. The accused will have the right to cross-examine such prosecution witness, hence such statements of the prosecution witnesses may thereafter be admissible in behalf of or against the accused (Regalado, p. 460). Section 16. Trial of several accused GENERAL RULE: When two or more persons are jointly charged with an offense, they shall be tried jointly. This rule is so designed as to preclude a wasteful expenditure of judicial resources and to promote an orderly and expeditious disposition of criminal prosecutions. EXCEPTION: The court, upon motion of the fiscal or of any of the defendants, may order a separate trial for one or more accused. The granting of a separate trial when two or more defendants are jointly charged with an offense is purely discretionary with the trial court. The motion for separate trial must be filed BEFORE the commencement of the trial and cannot be raised for the first time on appeal. If a separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter. In joint trial, it would be admissible if the latter had the opportunity for cross-examination.
IN
REMEDIAL LAW
Section 17. Discharge of accused to be state witness. Motion to discharge should be made by the prosecution BEFORE resting its case. REQUISITES FOR DISCHARGE 1. absolute necessity for the testimony 2. no other direct evidence available for the prosecution 3. testimony can be substantially corroborated in its material points 4. accused not the most guilty 5. accused has never been convicted of an offense involving moral turpitude Absence of any of the requisites for the discharge of a particeps criminis is a ground for objection to the motion for his discharge, BUT such objection must be raised BEFORE the discharge is ordered. EFFECTS OF DISCHARGE 1. Evidence adduced in support of the discharge shall automatically form part of the trial; 2. If the court denies the motion to discharge the accused as state witness, his sworn statement shall be inadmissible in evidence; 3. Discharge of accused operates as an acquittal and bar to further prosecution for the same offense. EXCEPTIONS: 1. If the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge 2. Failure to testify refers exclusively to defendants will or fault 3. Where an accused who turns states evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him.


173
MEMORY AID
Section 19. When mistake has been made in charging the proper offense. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, the court should dismiss the action and order the filing of a new information charging the proper offense. This rule is predicated on the fact that an accused person has the right to be informed of the nature and cause of the accusation against him, and to convict him of an offense different from that charged in the complaint or information would be an unauthorized denial of that right. (U.S. vs. Campo, 23 Phil. 369) Section 20. Appointment of acting prosecutor. See Section 5, Rule 110. Section 21. Exclusion of the public. GENERAL RULE: The accused has the right to a public trial and under ordinary circumstances, the court may not close the door of the courtroom to the general public. EXCEPTION: Where the evidence to be produced during the trial is of such character as to be offensive to decency or public morals, the court may motu propio excludes the public from the courtroom. Section 22. Consolidation of trials of related offenses. This contemplates a situation where separate informations are filed: 1. for offenses founded on the same facts; 2. for offenses which form part of a series of offenses of similar character Section 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence:
IN
REMEDIAL LAW
1.on its own initiative after giving the prosecution the opportunity to be heard; or 2.upon demurrer to evidence filed by the accused with or without leave of court. The arrest rule allows the accused in a criminal case to present evidence even after a motion to dismiss PROVIDED the demurrer was made with the express consent of the court. The filing of the motion to dismiss WITHOUT leave of court results in the submission of the case for decision on the basis of the evidence on record and does not lie from such order denying the motion to dismiss. If said motion to dismiss is sustained, such dismissal being on the merits is equivalent to an acquittal, hence the prosecution cannot appeal as it would place the accused in double jeopardy. An order denying a demurrer to evidence being interlocutory is NOT APPEALABLE. Section 24. Reopening. At any time BEFORE finality of the judgment of conviction, the judge may, motu propio or upon motion, with hearing in either case, reopen the proceedings to avoid miscarriage of justice. The proceedings shall be terminated within 30 days from the order granting it. RULE 120 JUDGMENT Section 1. Judgment; definition and form. Judgment - the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability provided for by the law. It is not necessary that the judge who tried the case be the same judicial


174
MEMORY AID
officer to decide it. It is sufficient if he be apprised of the evidence already presented by a reading of the transcript of the testimonies already introduced, in the same manner as appellate courts review evidence on appeal. Section 2. Contents of the judgment. Judgment must be 1. in writing; 2. in the official language, 3. personally and directly prepared and signed by the judge, 4. with a concise statement of the fact and the law on which it is based. REMEDY IF JUDGMENT IS NOT PUT IN WRITING: file a petition for mandamus to compel the judge to put in writing the decision of the court. If the judgment is one of CONVICTION, judgment must state: 1. Legal ratification of the offense constituted by the admissions of the accused and the aggravating and mitigating circumstances attending its commission 2. Participation of the accused, whether as principal, accomplice or accessory 3. Penalty imposed upon the accused 4. Civil liability or damages caused by the wrongful act, unless separate civil action has been reserved or waived If the judgment is one of ACQUITTAL, it must make a finding on the civil liability of the accused, unless there is clear showing that the act from which the civil liability might arise did not exist. Reasonable doubt - state of the case which, after full consideration of all evidence, leaves the mind of the judge in such a condition that he cannot say that he feels an abiding conviction, to a moral certainty, of the truth of the charge.
IN
REMEDIAL LAW
Acquittal a finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case upon motion of the accused on the ground that the evidence fails to show beyond reasonable doubt that the accused is guilty. It is well-settled that acquittal, in a criminal case is immediately final and executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy. (Barbers vs. Laguio, Jr., 351 SCRA 606) An acquittal of an accused based on reasonable doubt DOES NOT bar the offended party from filing a separate civil action based on other sources of obligation. Section 3. Judgment for two or more offenses. When two or more offenses charged in the complaint or information, and the accused fails to object to it before trial, the court may convict the accused of as many offenses as charged and proved. An accused can be convicted of an offense only when it is both charged and proved. If it is not charged although proved, OR if it is not proved although charged, the accused CANNOT be convicted thereof. Variance between the allegation and the proof cannot justify a conviction for either the offense charged or the offense proved unless either is included in the other (Section 4). Section 5. When an offense includes or is included in another. GENERAL RULE: If what is proved by the prosecution evidence is an offense which is included in the offense charged in the


175
MEMORY AID
information, the accused may validly be convicted of the offense proved. EXECEPTION: Where facts supervened after the filing of information which change the nature of the offense. An offense charged necessarily includes another when some essential elements or ingredients of the offense charged constitute the offense proved, or when the essential elements or ingredients of the offense charged constitute or form part of those constituting the offense proved, then one offense is included in the other. Section 6. Promulgation of judgment. Promulgation of judgment - official proclamation or announcement of judgment. It consists of reading the judgment or sentence in the presence of the accused and any judge of the court rendering the judgment. RULES ON THE VALIDITY OF PROMULGATION OF JUDGMENT: 1. The judgment must have been rendered and promulgated during the incumbency of the judge who signed it. 2. The presence of counsel during the promulgation of judgment is not necessary. Effect of Absentia available judgment arrest. Promulgation of Judgment in he shall lose all remedies in these Rules against the and the court shall order his Modification of
IN
REMEDIAL LAW
b. when the sentence is partially or totally satisfied or served; c. when the accused expressly waives in writing his right to appeal; and d. when the accused applies for probation. A judgment of acquittal becomes final immediately after promulgation and cannot be recalled for correction or amendment. The prosecutor cannot ask for the modification or setting aside of a judgment of conviction because the rules clearly provide that a judgment of conviction may be modified or set aside by the court rendering upon motion of the accused. The trial court can validly amend the civil portion of its decision within 15 days from promulgation thereof even though the appeal had in the meantime already been perfected by the accused from judgment of conviction. The trial court may lose jurisdiction over the judgment even BEFORE the lapse of 15 days: 1. when the defendant voluntarily submits to the execution of the judgment; 2. when the defendant perfects his appeal; 3. when the accused withdraws his appeal; 4. when the accused expressly waives in writing his right to appeal; 5. when the accused files a petition for probation. Section 8. Entry of judgment. The final judgment of the court is carried into effect by a process called mittimus. Mittimus - A process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in
Section 7. judgment.
Upon motion of the accused, a judgment of conviction may be modified or set aside by the court BEFORE it has become final or BEFORE an appeal has been perfected. A judgment becomes final: a. when the period for perfecting appeal an appeal has lapsed;


176
MEMORY AID
accordance judgment. with the terms of the
IN
REMEDIAL LAW
accused may file a motion for new trial with the appellate court. Cases when the trial court lose jurisdiction over its sentence even before the lapse of 15 days: 1. When the defendant voluntarily submits to the execution of the sentence 2. When the defendant perfects his appeal. The moment the appeal is perfected the court a quo loses jurisdiction over it, except for the purpose of correcting clerical errors. New Trial
Filed after judgment is rendered but before the finality thereof At the instance or with the consent of the accused
Section 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule. RULE 121 NEW TRIAL OR RECONSIDERATION Section 1. reconsideration. New trial or
New trial - the rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken. A motion for new trial or reconsideration should be filed with the trial court within 15 days from the promulgation of the judgment and interrupts the period for perfecting an appeal from the time of its filing until notice of the order overruling the motion shall have been served upon the accused or his counsel. A motion for the reconsideration of the judgment may be filed in order to correct errors of law or fact in the judgment. It does not require any further proceeding. A new trial be granted at any time before the judgment of conviction becomes final: 1. on motion of the accused 2. on motion of the court but with the consent of the accused The award of new trial or taking of additional evidence rests upon the sound discretion of the court. (People vs. Acosta, 98 Phil. 642) Once the appeal is perfected, the trial court steps out of the case and the appellate court steps in. Should it come to pass then that during the pendency of the appeal, new and material evidence, for example, have been discovered, the
Reopening of the case

made by the court before the judgment is rendered in the exercise of sound discretion does not require the consent of the accused; may be at the instance of either party who can thereafter present additional evidence
Section 2. Grounds for new trial. GROUNDS FOR A NEW TRIAL IN CRIMINAL CASES: 1. errors of law or irregularities committed during the trial prejudicial to the substantial rights of the accused. 2. new and material evidence discovered. REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON THE GROUND OF NEWLY DISCOVERED EVIDENCE: 1. that the evidence was discovered after trial; 2. that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence;


177
MEMORY AID
3. that it is material not merely cumulative, corroborative or impeaching; and 4. the evidence is of such a weight that it would probably change the judgment if admitted. Mistakes or errors of counsel in the conduct of his case are not grounds for new trial. This rule is the same whether the mistakes are the result of ignorance, inexperience, or incompetence. (U.S. vs. Umali, 15 Phil. 37) If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case. Section 3. Grounds for reconsideration. Grounds of motion for reconsideration 1. errors of law; 2. errors of fact in the judgment, which require no further proceedings. The principle underlying this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from being taken. The grant by the court of reconsideration should require no further proceedings, such as the taking of additional proof. Section 4. Form of motion and notice to the prosecutor. Requisites for a motion for new trial or reconsideration: The motion for a new trial or reconsideration shall be: 1. in writing 2. filed with the court 3. State grounds on which it is based 4. If the motion for new trial is based on a newly discovered evidence, it must be supported
IN
REMEDIAL LAW
by the affidavits of the witness by whom such evidence is expected to be given, or duly authenticated copies of documents which it is proposed to introduce in evidence. 5. Notice of the motion for new trial or reconsideration shall be given to the fiscal. While the rule requires that an affidavit of merits be attached to support a motion for new trial based on newly discovered evidence, yet the defect of lack of it may be cured by testimony under oath of the defendant at the hearing of the motion. (Paredes vs. Borja, 3 SCRA 495) Section 5. Hearing on motion. Where a motion for new trial calls for resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise. PURPOSE To determine whether the new trial requested should be granted or not. It is not the new trial proper where newly discovered evidence, for example will be received by the court. (Pamaran, p. 608) Section 6. Effects of granting a new trial or reconsideration. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION 1. when a new trial is granted on the ground of errors of law or irregularities committed during the trial, all proceedings and evidence not affected by the commission of such errors and irregularities shall stand, BUT those affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. 2. When a new trial is granted on the ground of newly discovered evidence, the evidence already taken shall stand, and the newly discovered and such other evidence


178
MEMORY AID
as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record. 3. In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside and a new judgment rendered accordingly. The effect of the granting of a new trial is not to acquit the accused of the crime of which the judgment finds him guilty, but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been before. Unlike the rule in Civil Cases, the remedy of the aggrieved party being appeal in due time, an order granting a new trial rendered in Criminal Cases is also interlocutory BUT is controllable by certiorari or prohibition at the instance of the prosecution. RULE 122 APPEAL Section 1. Who may appeal. Any party may appeal from a judgment or final order, UNLESS the accused will be placed in double jeopardy. Appeal - a proceeding for review by which the whole case is transferred to the higher court for a final determination Appeal is not an inherent right of convicted person. The right of appeal is and always has been statutory. Only final judgments and orders are appealable. EFFECT OF AN APPEAL An appeal in a criminal case opens the whole case for review and this includes the review of the penalty, indemnity, and the damages involved. Consequently, on appeal, the appellate
IN
REMEDIAL LAW
court may increase the penalty, indemnity, or the damages awarded by the trial court, although the offended party had not appealed from said award, and the party who sought a review of the decision was the accused. Final judgment
a judgment which would become final if no appeal is taken
Final Order
disposes of the whole subject matter or terminates a particular issue leaving nothing to be done but to enforce by execution what has been determined
From a judgment convicting the accused, two appeals may accordingly be taken: 1. The accused may seek a review of said judgment, as regards both actions; or 2. The complainant may appeal with respect only to the civil action, either because the lower court has refused or failed to award damages, or because the award made is unsatisfactory to him. GENERAL RULE: A private prosecutor in a criminal case has NO authority to act for the People of the Philippines before a court on appeal. It is the governments counsel, the Solicitor General, who appears in criminal cases or their incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General. EXCEPTION: The civil award in a criminal case may be appealed by the private prosecutor on behalf of the offended party or his successors. Section 2. Where to appeal. Section 3. How appeal taken. HOW APPEAL IS TAKEN 1. Appeal to the Regional Trial Court: by filing a notice of appeal with the court that


179
MEMORY AID
rendered the judgment or order appealed from and serving a copy to the adverse party 2. Appeal to the Court of Appeals from decision of the Regional Trial Court in the exercise of its original jurisdiction: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party 3. Appeal to the Court of Appeals in cases decided by Regional Trial Court in the exercise of its appellate jurisdiction: by petition for review 4. Appeal to the Court of Appeals in cases where penalty imposed is life imprisonment or where a lesser penalty is imposed but involving 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: by filing a notice of appeal with the Court of Appeals. 5. Death penalty: automatic review by the Court of Appeals. (A.M. No. 00-5-03-SC, October 15, 2004) 6. Other appeals to the Supreme Court: by petition for review on certiorari. Error of Judgment
the court may commit in the exercise of jurisdiction reviewable by appeal
IN
REMEDIAL LAW
3. petition for review on certiorari 4. automatic appeal Section 4. Service of notice of appeal. PUBLICATION OF NOTICE OF APPEAL If copy of the notice of appeal cannot be served on the adverse party or his counsel, it may be done by publication. Service by publication is made in a newspaper of general circulation in the vicinity once a week for a period not exceeding 30 days. Section 5. Waiver of notice. The appellee may waive his right to a notice that an appeal has been taken. HOWEVER, the appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. (Llamas vs. Moscoso, 95 Phil. 735) Section 6. When appeal to be taken. An appeal must be filed within 15 days counted from the promulgation or notice of the judgment or order appealed from. The period for appeal is interrupted from the time the motion for new trial is filed up to the receipt by the accused of the notice of the order overruling the motion. Section 8. Transmission of papers to appellate court upon appeal. Within 5 days from the filing of the notice of appeal, the clerk of the court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the complete record of the case, together with said notice. Section 10. Transmission of records in case of death penalty.
Error of Jurisdiction
renders an order of judgment void or voidable reviewable by certiorari
Modes of review The Rules of Court recognize 4 modes by which the decision or final order of the court may be reviewed by a higher tribunal, viz.: 1. ordinary appeal 2. petition for review

180
MEMORY AID
In case of death penalty, the records shall be forwarded to the Court of Appeals for automatic review and judgment, within 20 days but not earlier than 15 days after the promulgation of the h e the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within 10 days after the filing thereof by the stenographic reporter (A.M. No. 005-03-SC, Oct. 15, 2004). Section 12. Withdrawal of appeal. An appellant may withdraw his appeal BEFORE the record has been forwarded by the clerk of court to the proper appellate court as provided by Section 8, in which case the judgment shall become final. The court may also, in its discretion, allow the appellant to withdraw his appeal, PROVIDED a motion to that effect is filed BEFORE the rendition of the judgment in the case on appeal. Once appeal is withdrawn, the decision or judgment appealed from becomes at once final and executory. (People vs. Dueo, 90 SCRA 23) Section 13. Appointment of counsel de oficio for accused on appeal. The right to counsel de oficio does not cease upon the conviction of an accused by a trial court but continues, even during appeal. Duties of the clerk of the trial court to the appellant who is confined in prison upon the presentation of notice of appeal: 1. he shall ascertain from the appellant, whether he desires the Court of Appeals or the Supreme Court to appoint an attorney to defend him de oficio; 2. he shall transmit with the record, upon a form to be
IN
REMEDIAL LAW
prepared by the clerk of the appellate court, a certificate of compliance with this duty of the response of the appellant to his inquiry. RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS Section 1. Uniform Procedure. Procedure to be observed in Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts: They shall observe the same procedure as in the Regional Trial Courts EXCEPT: 1. where a particular provision expressly or impliedly applies only to the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts or Regional Trial Courts 2. In criminal cases governed by the Rules on Summary Procedure in Special Cases adopted on August 1, 1983 and revised on November 15, 1991. RULE 124 PROCEDURE IN THE COURT OF APPEALS Section 2. Appointment of counsel de oficio for the accused. REQUISITES BEFORE AN ACCUSED CAN BE GIVEN A COUNSEL DE OFICIO ON APPEAL 1. that he is confined in prison 2. without counsel de parte on appeal 3. signed the notice of appeal himself EXCEPTIONS: An accused-appellant not confined to prison can have a counsel de oficio if requested by him in the appellate court within 10 days from receipt of the notice to file brief and the right thereto is established by affidavit.


181
MEMORY AID
Section 3. When brief for the appellant to be filed. 7 copies of the brief shall be filed within 30 days from receipt by the appellant or his counsel of the notice from the clerk of court of the Court of Appeals that the evidence, oral and documentary, is already attached to the record. Brief - literally means a short or condensed statement. The purpose of the brief is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion. PURPOSE To present to the court in concise form the points and questions in controversy and, by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion. Section 4. When brief for appellee to be filed; reply brief of the appellant. The appellee shall file 7 copies of the brief with the clerk of court within 30 days from receipt of the brief of the appellant accompanied by proof of service of 2 copies thereof upon the appellant Section 5. Extension of time for filing briefs. Not allowed EXCEPT for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended. Section 7. Contents of briefs. Unlike the procedure in civil cases, it has been held that it is not essential for the accused to make assignment of errors in his brief, as on appeal, the whole record
IN
REMEDIAL LAW
and
of the case is submitted to reviewable by the appellate court.
Issues that were never raised in the proceedings before the trial court cannot be considered and passed upon on appeal. Section 8. Dismissal of appeal for abandonment or failure to prosecute. GROUNDS FOR DISMISSAL OF APPEALS 1. Failure on the part of the appellant to file brief within the reglementary period, except when he is represented by a counsel de oficio; 2. Escape of the appellant from prison or confinement; 3. When the appellant jumps bail; and 4. Flight of the appellant to a foreign country during the pendency of the appeal. DISMISSAL OF APPEAL; NEED OF NOTICE TO APPELLANT The Court of Appeals may dismiss motu propio or on motion by appellee an appeal for failure on the part of the appellant to file his brief on time, BUT it must have a notice served upon the appellant of the action to be taken by said court before dismissing motu propio the appeal. Effect of Escape of Accused; Abandonment of Appeals 1. If the convict escapes from prison or confinement or refuses to surrender to the proper authorities, jumps bail or flees to a foreign country he is deemed to have abandoned his appeal AND the judgment of the court below becomes final. 2. In that case, the accused cannot be afforded the right to appeal UNLESS (a) he voluntarily submits to the jurisdiction of the court or (b) is otherwise arrested within 15 days from notice of the judgment against him.


182
MEMORY AID
Section 9. Prompt disposition of cases. It is discretionary for the appellate court whether to order a hearing of the case before it or decide the appeal solely on the evidence submitted to the trial court. If the Court of Appeals chose not to hear the case, the Justices composing the division may just deliberate on the case, evaluate the recorded evidence on hand and then decide it. Section 10. Judgment reversed or modified substantial error. not to be except for Section 12. evidence.
IN
REMEDIAL LAW
to receive
Power
PURPOSE To speed up the disposition of court cases.
GENERAL RULE: The findings of the judge who tried the case and heard the witnesses are not disturbed on appeal. EXCEPTION: When it is shown that the trial court has overlooked certain facts of substance and value that, if considered, might affect the result of the case. (People vs. Cabiling, 74 SCRA 285) The reversal of judgments entered in the court below is prohibited, EXCEPT for prejudicial error that which tends to prejudice a substantial right of a party to the proceedings. Section 11. Scope of Judgment. The appeal confers upon the appellate court full jurisdiction and renders it competent to examine the records, revise the judgment appealed from, increase the penalty and cite the proper provision of the law. An invocation of the constitutional immunity from double jeopardy will not lie in case of appeal by the accused. The reason being that when the accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court.
Other powers of the Court of Appeals: 1. to try cases and conduct hearings; 2. receive evidence; 3. perform any and all acts necessary to resolve factual issues raised in cases: a. falling under its original and appellate jurisdiction; b. including the power to grant and conduct new trials or further proceedings. Section 13. Quorum of the court; certtification or appeal of case to the SC. a. Whenever the Court of Appeals finds that the penalty of death should be imposed, the court shall render judgment bur REFRAIN from making an entry of judgment and forthwith certify the case and elevate its entire record to the SC for review. b. In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the SC by notice of appeal filed with the Court of Appeals. (A.M. No. 00-5-03SC, Oct. 15, 2004) Section 14. Motion for new trial. Motion for new trial based on Newly Discovered Evidence may be filed at any time AFTER the appeal from the lower


183
MEMORY AID
court has been perfected AND BEFORE the judgment of the appellate court convicting the accused becomes final. Once an appeal is perfected, the trial court steps out and the appellate court steps in. A motion for new trial must then be filed with the appellate court, not with the court from whose judgment the appeal is taken. Section 16. Rehearing or reconsideration. A motion for reconsideration shall be filed within 15 days from notice of the decision or final order of the Court of Appeals. A re-hearing is NOT a matter of right but a privilege to be granted or not, as the court sees fit, the matter being solely within its discretion. New questions CANNOT be presented for the first time on a motion for rehearing, especially where they are inconsistent with positions taken on the original hearing, or waived on the original submission of the case. A second motion for rehearing or reconsideration of a final judgment or order is NOT allowed because if parties are allowed to file as many motions for rehearing or reconsideration as their discretion or caprice suits, the proceedings would become undeterminable and unnecessarily voluminous. The MITTIMUS is the final process of carrying into effect the decision of the appellate court and the transmittal thereof to the court of origin is predicated upon the finality of the judgment. It shall be stayed during the pendency of the motion for rehearing or reconsideration. A motion for reconsideration of its judgment or final resolution shall be resolved by the Court of Appeals within 90 days from the time it is submitted for resolution, and no 2nd motion for
IN
REMEDIAL LAW
reconsideration for the same party shall be entertained. The only-one-motion-for-reconsideration rule does not apply where the first motion for reconsideration resulted in a reversal or substantial modification of the original decision or final resolution. The party adversely affected thereby may file a motion for reconsideration. Section 17. Judgment transmitted and filed in trial court. Transmittal of judgment to court a quo After the judgment has been entered, a certified copy of the entry should be transmitted to the clerk of the court of origin. The copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file. Sec. 18. Application of certain rules in civil to criminal cases. The corresponding amendment was made pursuant to the changes introduced under the 1997 Rules of Procedure. Rule 47 (Annulment of Judgments of Final Judgment and Resolutions) DOES NOT APPLY TO CRIMINAL CASES. The appropriate remedy for lack of jurisdiction or extrinsic fraud is CERTIORARI (Rule 65) or HABEAS CORPUS (Rule 102). RULE 125 PROCEDURE IN THE SUPREME COURT Section 1. Uniform Procedure. The procedure in the Supreme Court in original, as well as in appealed cases, is the same as in the Court of appeals, EXCEPT when otherwise provided by the Constitution or the law.


184
MEMORY AID
A case may reach the Supreme Court in the following manner: 1. automatic review 2. ordinary appeal 3. petitioner for review on certiorari
IN
REMEDIAL LAW
admissions of both appellant and appellee 7. when certain material facts and circumstances had been overlooked which, if taken into account would after the result as it would give rise to reasonable doubt to acquit the accused.
EFFECT OF DIRECT APPEAL TO THE SUPREME COURT ON QUESTION OF LAW IN CRIMINAL CASES A direct appeal to the Supreme Court on questions of law in criminal cases in which the penalty imposed is not death or life imprisonment precludes a review of the facts. Cases involving both questions of law and fact come within the jurisdiction of the Court of Appeals. Appeal to the SC is NOT A MATTER OF RIGHT, but a matter of sound judicial discretion. The prescribed mode of appeal is by certiorari. Section 2. Review of decisions of the Court of Appeals. GENERAL RULE: Findings of fact in the CA is conclusive upon the SC EXCEPTIONS: 1. when the conclusion is a finding grounded entirely on speculation, surmises or conjectures 2. when the inference made is manifestly absurd, mistaken or impossible 3. when there is grave abuse of discretion in the appreciation of facts 4. when the judgment is premised on a misapprehension of facts 5. when the findings of fact are conflicting 6. when the Court of Appeals in making its findings went beyond the issues of the case and the same is contrary to the
Question of law - when the doubt or difference arises as to what the law is on a certain state of facts. It must not involve an examination of the probative value of the evidence presented by the litigants or any of them. Question of fact - when the doubt or difference arises as to the truth or the falsehood of alleged facts. Section 3. Decision if opinion is equally divided. The Supreme Court, the Constitution ordains, shall be composed of a Chief Justice and 14 associate justices. It mat sit en banc or in its discretion, in divisions of 3, 5, or 7 members (Section 4(1), Article VIII, 1987 Constitution). A criminal case shall be reheard by the Supreme Court when the Court en banc is equally divided in opinion or the necessary majority cannot be had, if no decision is reached the conviction of the lower court shall be reversed and the accused acquitted. According to the Constitution, only the Supreme Court en banc may modify or reverse a doctrine or principle of law or ruling laid down by the Court in a decision rendered en banc or in division. RULE 126 SEARCH AND SEIZURE Section 1. Search warrant defined. Search Warrant an order in writing issued in the name of the People of the


185
MEMORY AID
Philippines, signed by a judge and directed to a peace officer commanding him to search for personal property described therein and bring it before the court. ELEMENTS OF SEARCH WARRANT: 1. order in writing 2. signed by the judge in the name of the People of the Philippines 3. commanding a peace officer to search personal property 4. bring the property before the court NATURE OF SEARCH WARRANTS Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions. Search warrants have no relation to civil process or trials and are not available to individuals in the course of civil proceedings, nor for the maintenance of any mere private right. SEARCH vs. SEIZURE The term search as applied to searches and seizures is an examination of a mans house or other buildings or premises or of his person with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged. A seizure is the physical taking of a thing into custody. General Warrant a search warrant which vaguely describes and DOES NOT particularize the personal properties to be seized without a definite guideline to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion regarding what articles they should seize. A general warrant is NOT VALID as it infringes on the constitutional mandate requiring particular description of the things to be seized. WARRANT OF SEARCH WARRANT ARREST
Order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense. Does not become stale May be served on any day and at any time of day or night. (sec. 6, rule 113).
IN
REMEDIAL LAW
Order in writing in the name of the RP signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court. (sec. 1) validity is for 10 days only (sec. 9)
to be served only in daytime unless the affidavit alleges that the property is on the person or in the place to be searched. (sec. 8) upon probable cause to be determined personally by the judge after examination in writing and under oath in the form of searching answers and questions. Only issued if there sworn statements is a necessity of and affidavits of placing accused complainant and under immediate witnesses must be custody submitted to court.
Test to determine Particularity 1. When the description therein as specific as the circumstances will ordinarily allow 2. When the description express a conclusion of fact- not of law which the warrant officer may be guided in making the search and seizure. 3. When the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. EXCEPTION: AN APPLICATION FOR SEARCH WARRANT SHALL BE FILED WITH THE FF: 1. any court within whose territorial jurisdiction a crime was committed; 2. any court within the judicial region where the crime was


186
MEMORY AID
committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced; 3. HOWEVER, if the criminal action has been filed, the application shall only be made in the court where the criminal action is pending. Section 3. Personal property to be seized. Kinds of property to be seized by virtue of a warrant: 1. subject of the offense; 2. proceeds or fruits of the offense; 3. the means used or intended to be used for committing an offense. The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In a search incidental to an arrest even WITHOUT a warrant the person arrested may be searched for: 1. dangerous weapons, and 2. anything which may be used as proof of the commission of an offense. Section 4. Requisites for issuing Search warrant. REQUISITES 1. must be issued upon probable cause; 2. probable cause must be determined by the issuing judge personally; 3. the judge must have personally examined, in the form of searching questions and answers, the applicant and his witnesses and taken down their written depositions; 4. the search warrant must particularly describe or identify the property to be seized as far
IN
REMEDIAL LAW
as the circumstances will ordinarily allow; 5. the warrant issued must particularly describe the place to be searched and the persons or things to be seized; 6. it shall issue only for one specific purpose; and 7. it must not have been issued more than 10 days prior to the search made pursuant thereto. A search warrant shall not issue but upon probable cause in connection with one specific offense. Party who may question validity of search and seizure: Well settled is the rule that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. REMEDIES FROM AN UNLAWFUL SEARCH 1. a motion to quash the search warrant, and 2. a motion to suppress as evidence the objects illegally taken. (EXCLUSIONARY RULE any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding) 3. Replevin, if the objects are legally possessed. The remedies are alternative; if a motion to quash is denied, a motion to suppress cannot be availed of subsequently. Where the search warrant is a PATENT NULLITY, certiorari lies to nullify the same. The illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law. HOWEVER, those personalities seized in violation of the constitutional immunity whose possession is not of itself illegal or


187
MEMORY AID
unlawful ought to be returned to their rightful owner or possessor. Any evidence obtained in violation of the constitutional immunity against unreasonable searches and seizures are inadmissible for any purpose in any proceeding (Section 2, Article III, 1987 Constitution). When may a search warrant be said to particularly describe the thing to be seized: 1. the description therein is as specific as the circumstances will allow; 2. when it expresses a conclusion of fact by which the warrant may be guided; or 3. when the things described are limited to those which bear a direct relation to the offense for which the warrant is issued. PROBABLE CAUSE facts and circumstances which could lead a reasonable, discreet and prudent man to believe that the property subject of an offense is in the place sought to be searched. MULTI FACTOR BALANCING TEST in determining Probable Cause: One which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed, and the circumstances attending the incident. Section 5. Examination of complainant; record. Manner on how a judge should examine a witness to determine the existence of probable cause: 1. the judge must examine the witnesses personally 2. the examination must be under oath 3. the examination must be reduced to writing in the form of searching questions and answers
IN
REMEDIAL LAW
Such personal examination is necessary in order to enable the judge to determine the existence or nonexistence of a probable cause. Section 6. Issuance and form or search warrant. ISSUANCE OF SEARCH WARRANT The Constitution ordains that no warrant shall issue but upon probable cause supported by oath or affirmation. FORM OF SEARCH WARRANT The search warrant must be in writing and must contain such particulars as the name of the person against whom it is directed, the offense for which it was issued, the place to be searched and the specific things to be seized. An application for a search warrant is heard ex-parte. It is neither a trial nor a part of the trial. The examination or investigation, which must be under oath may not be in public. It may be even held in the secrecy of the chambers. It must be under oath and must be in writing. Section 8. Search of house, room, or premises to be made in presence of two witnesses. In order to insure that the execution of the warrant will be fair and reasonable, and in order to insure that the officer conducting the search shall NOT exceed his authority or use unnecessary severity in executing the search warrant, as well as for the officers own protection against unjust accusations, it is required that the search be conducted in the presence of the: 1. lawful occupant of the place to be searched, 2. or any member of his family, 3. or in their absence, in the presence of two witnesses of sufficient age and discretion residing in the same locality. This requirement is mandatory.


188
MEMORY AID
Section 9. Time of making search. GENERAL RULE: A search warrant must be served in the day time. EXCEPTION: A search warrant may be made at night when it is positively asserted in the affidavit that the property is on the person or in the place ordered to be searched (Alvares vs. CFI of Tayabas, 64 Phil. 33). The affidavit making such assertion must itself be sufficient as to the fact so asserted, for if the same is based upon hearsay, the general rule shall apply. A search warrant conducted at night without direction to that effect is an unlawful search. The same rule applies where the warrant left blank the time for making the search. A public officer or employee who exceeds his authority or uses unnecessary severity in executing the warrant is liable under Article 129 of the Revised Penal Code. Section 10. warrant. Validity of search
IN
REMEDIAL LAW
Section 12. Delivery of [property and inventory thereof to court; return and proceedings thereon. The law imposes upon the person making the search the duty to issue a detailed receipt for the property seized. Additionally, he is likewise required to make a return of the warrant to the court which issued it, together with an inventory of the property seized. Section 13. Search incident to lawful arrest. WHEN MAY THERE BE A SEARCH WITHOUT WARRANT 1. in times of war within the area of military operation; 2. as an incident of a lawful arrest, subject to the following requisites: a. arrest must be lawful; b. search and seizure must be contemporaneous with arrest; c. search must be within permissible area; (i.e. STOP AND FRISK search which allows a limited protective search of outer clothing for weapons) 3. when there are prohibited articles open to eye and hand; (PLAINVIEW DOCTRINE) 4. when there is consent, subject to the following conditions: (consented search) a. there is a right; b. there must be knowledge of the existence of such right; c. there must be intention to waive; 5. when it is incident of inspection; 6. under the Tariff and Customs Code for purposes of enforcing customs and tariff laws; 7. searches and seizures of vessels and aircraft; this extends
10 days from its date, thereafter, it shall be void. A search warrant can be used only once, thereafter it becomes functus oficio. While, under section 10, a search warrant has a validity of 10 days, NEVERTHELESS, it CANNOT be used every day of said period and once articles have already been seized under said warrant, it CANNOT be used again for another search and seizure, EXCEPT when the search conducted on one day was interrupted, in which case the same may be continued under the same warrant the following day if not beyond 10 day period. (Uy Kheytin vs. Villareal, 42 Phil. 886)


189
MEMORY AID
to the warrantless search of a motor vehicle for contraband; Search and seizure of vessels and aircraft may validly be made without a search warrant because the vessel or aircraft can quickly move out of the jurisdiction before such warrant could be secured. The remedy for questioning the validity of a search warrant can only be sought in the court that issued it, not in the sala of another judge of concurrent jurisdiction. Except where there is already a case filed, the latter shall acquire jurisdiction to the exclusion of other courts. Waiver of legality and admissibility Objection to the legality of the search warrant as to the admissibility of the evidence obtained or deemed waived where no objection of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant. Section 14. A motion to quash a search warrant or to suppress evidence; where to file. IN WHAT COURT MAY A MOTION TO QUASH BE FILED: 1. before the court that issued the warrant; 2. under the CRIMINAL CASE RULE, all the incidents arising from the Search Warrant should be consolidated in the court where the criminal case is pending; 3. under the ALTERNATIVE REMEDY RULE, with the court which issued the search warrant. In this motion, all grounds for objection existent or available and known at the time MUST BE INVOKED, otherwise, they are deemed waived. The legality of the search warrant should be addressed to the court issuing the search warrant and not to any other court to foster (Pagkalinawan vs. 1275).
IN
REMEDIAL LAW
judicial stability Gomez, 23 SCRA
Filing of motion to quash is without prejudice to any proper recourse to the appropriate higher court by the party aggrieved.
Rule 127 PROVISIONAL REMEDIES IN CRIMINAL CASES Section 1. Availability of provisional remedies. NATURE OF PROVISIONAL REMEDIES
1. Those to which parties litigant may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action. They are applied to a pending litigation for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter.
2.
The requisites and procedure for availing of these provisional remedies shall be the same as those for civil cases. The provisional remedies under this rule are proper only where the civil action for the recovery of civil liability ex delicto has not been expressly waived or the right to institute such civil action separately is not reserved in those cases where reservation may be made. Where the civil action arising from a criminal offense is suspended by the filing of the criminal action, the court wherein said civil case is pending can issue the aforesaid auxiliary writs since such orders do not involve a


190
MEMORY AID
determination of the merits of the case. (Babala vs. Abao, 90 Phil. 827) Kinds of provisional remedies 1. attachment 2. injunction 3. receivers 4. delivery of personal property 5. support pendente lite Section 2. Attachment
IN
REMEDIAL LAW
Who may apply for preliminary NATIONAL CAPITAL JUDICIAL REGION attachment Attachment may be availed of ONLY REGIONAL TRIAL COURT The aggrieved party in whose behalf the BRANCH 911 when the civil action arising from the MANILA, civil aspect of the criminal action is crime has not been expressly waived or prosecuted may apply for the issuance of not reserved and only in the following a writ OF THE PHILIPPINES of preliminary attachment, he cases: PEOPLE being the person primarily and directly a. when the accused is about to PLAINTIFF, interested thereby. The prosecutor in abscond from the Philippines; the criminal action may make such an b. when the criminal action is based on -VERSUSapplication in behalf CRIM.or forNO. ___________ claim for money or property of CASE the a protection of the interest of the embezzled or fraudulently offended MAE VENTURA party. misapplied or converted to the use HANNAH of the accused who is a public ACCUSED. It was held by the Supreme Court that officer or a corporate officer or an the public prosecutor has the authority attorney, broker, or agent or clerk in to apply for preliminary attachment as the course of employment or by a INFORMATION2person in a fiduciary capacity; may be necessary to protect the interest of the offended party. c. when the accused has concealed, The undersigned accuses HANNAH MAE VENTURA of about to dispose of his 3, removed or the crime of MURDER committedadverse party, not required Notice to as follows: property; No notice to the adverse party, or d. when the accused resides abroad. That on or about application5,is20044, in Batute, Manila5, Philippines, within the jurisdiction hearing on the December required of this court, the said accused did, PROCEDURE: Information CRIMINAL then and there, with malice aforethought and with deliberate intent to take the life of RENEE JOI ZABALA6, willfully, unlawfully, feloniously, suddenly, unexpectedly, and treacherously attack the latter with a metal fork, first wounding her in the back, and afterwards, when enfeebled and unable to defend herself, again stabbed her in the neck, both wounds being necessarily mortal7, thereby causing the direct and immediate death of said RENEE JOI ZABALA. CONTRARY TO LAW. April 28, 2005. __Sgd. Fiscal Happy__ (City/Provincial Fiscal)8
REPUBLIC OF THE PHILIPPINES
before a writ of preliminary attachment may issue as a hearing would defeat the purpose of the provisional remedy. The time which such a hearing would take, could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment issue and the only requisites from the issuance of a writ of preliminary attachment are the affidavit and bond of applicant. (Mindanao Savings, etc. vs. Court of Appeals, 172 SCRA 480)
Name of the accused, Sec. 7, Rule 110. Information, Sec. 4, Rule 110. 3 REMEDIAL LAW COMMITTEE Designation of the offense, Sec. 8, Rule 110. 4 CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae Date of commission of the offense, Sec. 11, Rule 110. Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and 5 Place Special of commission of the offense, Sec. 10, Rule 110. 6 Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence) Name of the offended party, Sec. 12, Rule 110. 7 Cause of the accusation, Sec. 9, Rule 110. 8 Subscribed by the prosecutor, Sec. 4, Rule 110.
2

Criminal Procedure: San Beda College of Law

Uploaded by

Copyright:

Available Formats

Criminal Procedure: San Beda College of Law

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Criminal Procedure: San Beda College of Law

Uploaded by

Copyright:

Available Formats

San Beda College of Law

JURISDICTION OVER THE PERSON OF THE ACCUSED

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

it is filed with the court need not be under oath

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

preliminary investigation Marfori, 35 Phil. 666).

Section 2. Officers authorized conduct preliminary investigation.

REMEDIAL LAW COMMITTEE

(Sec. 4 & 5).

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

Section 10. assistance.

REMEDIAL LAW COMMITTEE

San Beda College of Law

corporate surety property bond cash deposit recognizance RECOGNIZANCE

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

shows evident guilt presumption of guilt.

REMEDIAL LAW COMMITTEE

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

ON REDUCED BAIL OR ON HIS OWN RECOGNIZANCE

UNDER THE REVISED RULES ON SUMMARY PROCEDURE

San Beda College of Law

EXCEPTION: If the accused applies for probation he may be allowed temporary

REMEDIAL LAW COMMITTEE

San Beda College of Law

THE PRESENCE OF THE ACCUSED IS REQUIRED ONLY

REMEDIAL LAW COMMITTEE

San Beda College of Law