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NOTES ON CRIMINAL PROCEDURE

JURISDICTION
If there is no jurisdiction, the only power of that
court is to dismiss the case.
Aspects of jurisdiction
1. Offense
2. Territory where the crime was committed
3. Person of the accused
Jurisdiction of the MTC
1. Violations of City/Municipal Ordinances
committed within their territorial
jurisdiction
2. All offenses where the penalty prescribed
by law does not exceed 6 years of
imprisonment, regardless of the amount of
the fine.
3. Violations of BP 22 regardless of the
amount involved.
4. Offenses where the penalty is destierro.
Jurisdiction of the RTC
If it exceeds 6 years, file it with the RTC except in
cases of (LIE MD):
a) Libel
b) Infringement of copyright, if no special
commercial court
c) Election offenses
d) Offenses involving minors, whether the
minor be the complainant or the accused, if
no family court
e) Drug related cases
n.b. These cases have penalties that do not
exceed 6 years but it should be filed with
the RTC.
Jurisdiction of the Sandiganbayan
The following must concur:
1. The offender must be a government
official/employee.
2. He must commit the offense in relation to
his office or in the performance of his
duties.

Note: Taking advantage of a public


position is an allegation of an aggravating
circumstance. It is different from
committing an offense in relation to his
office.
3. The position occupied must be in the list of
positions enumerated in Sec 4 of RA 8249.
If the position is not in Sec 4 of RA 8249, then he
will be tried by the RTC or the MTC depending on
the penalty prescribed by the law.
Exception
However, if you occupy a position with a salary
grade of 27 or higher, you will be tried by the
Sandiganbayan. Even if your position is not listed
in Sec 4 of RA 8249. Even if the salary grade is
lower than 27, if the position is listed in Sec 4, the
Sandigan bayan will still have jurisdiction.
The Sandiganbayan will have jurisdiction
regardless of the penalty of these 3 conditions
have been met.
If the penalty is imprisonment or fine, just look
at the duration of the imprisonment.
If the penalty is ONLY fine, if it does not exceed
Php 4000 or PhP 6000 (for government officials),
MTC will have jurisdiction.
If an information is filed with the Sandiganbayan,
RTC or MTC, there should be a preliminary
hearing on the validity of the information. If the
information has been determined to be valid, the
court has the duty to suspend the accused for a
period not exceeding 90 days. There must be a
preliminary hearing before suspension.

Jurisdiction over the territory


In criminal procedure jurisdiction is the same with
venue. The venue is the place of the trial.
Rules on where to file a criminal action

1) The criminal action must be commenced


and tried in the place where the crime took
place or where its material ingredients
occur (continuing crime).
2) Where the crime is committed onboard a
train, aircraft or a vehicle (private or
public) in the course of its trip, the
criminal action shall be commenced and
tried in the court of the municipality where
the vehicle passed during its trip, including
the place of arrival and departure.
3) Where the crime is committed onboard a
vessel, it will be commenced and tried in
the court of first port of entry or wherever
the vessel has passed by in its voyage.
4) If committed outside the Philippines, but
punishable in the Philippines, file it in the
court where the case was first filed. (Art. 2,
RPC).
The Supreme Court may order a change in the
place of trial to prevent miscarriage of justice.
(Only the Supreme Court has the power to do
this).
In a criminal case, the court will dismiss a case on
the ground of lack of jurisdiction whereas in civil
cases, the court will dismiss it on the ground of
improper venue.
Jurisdiction over the person of the accused
It is obtained in two ways:
1) Valid arrest of the accused
2) Voluntary appearance in court
It is not the same with being held in custody of the
law, which is obtained in the following ways:
a) Valid arrest
b) Voluntary surrender
Once jurisdiction is acquired, it will remain until
the case ends. It is possible that an accused is not

in the custody of law but under the jurisdiction of


the court.
How to assail the legality of the arrest
If no case has been filed against him, he should
file a petition for habeas corpus. If there is a case,
file a motion to quash on the ground of no
jurisdiction over the person of the accused.
RULE 110: INSTITUTION OF A CRIMINAL
OFFENSE
If a criminal offense requires a preliminary
investigation, it is instituted by filing the
complaint with the proper officer for the purpose
of conducting the requisite preliminary
investigation.
For offenses which have no need for preliminary
investigation, it is instituted by filing a complaint
directly with the MTC or with the Office of the
Prosecutor. In Metro Manila and other chartered
cities, the complaint shall be filed with the office
of the prosecutor unless otherwise provided by
their charter.
All offenses which have at least 4 years, 2 months
and 1 day of imprisonment as the penalty require
preliminary investigation.
Proper Officers (requiring PI)
1) PCGG for ill-gotten wealth
2) Ombudsman involving government
officials in relation to their office
3) COMELEC election offense
There can be no direct filing of a criminal action
in the RTC, MeTC and MTCC. However, in the
MTC and MCTC, there can be direct filing.
Persons required to sign in the information and
the complaint
For a complaint, the offended party, the peace
officer and the public officer charged with
enforcement of the law are required to sign

whereas in an information only the prosecutor is


required to sign.
Complaint
It is a sworn written statement charging a person
with an offense, subscribed by the offended party,
any peace officer or other public officer charged
with the enforcement of the law violated.
Information
An accusation in writing charging a person with
an offense subscribed by the prosecutor and filed
with the court.
Complaint vs Information
1. A complaint must be under oath whereas
an information need not be under such.
2. A complain is signed by the offended
party, any peace officer or other public
officer charged with the enforcement of the
law violated. On the other hand, an
information is signed by the prosecutor.
3. A complaint is filed in court or the
prosecutors office while an information is
filed in court only.
Sufficiency of a Complaint/Information
1. Name of the accused
All the names must be specified
If not known, use a fictitious name
(e.g. John Doe)
If it is subsequently known, it will be
amended.
If over 15 but below 18 and acted with
discernment, use CICL
2. Designation of the offense by the statute
If there is conflict between the title and
body of the complaint, what is binding
is the facts alleged in the body of the
complaint.
If there is no designation, specify
section of the law that was violated.
3. Acts/omissions constituting the offense

Jurisdiction is determined by the facts


alleged in the complaint or
information.

4. Name of the offended party


5. Approximate date of the crime
6. Approximate place of the crime
This will determine the territorial
jurisdiction of the court.
Dates must not be too far away from each other.
This is to inform the accused of the nature and
cause of accusation against him.
Exception: When the date of the commission is an
element of the offense (e.g. Infanticide).
The complaint or information must be in writing
against the name of the people who committed the
crime.
Exception: Witness Protection Program
The name of the accused may not appear in the
complaint/information
A complaint/information must charge only one
offense except when the law prescribes a single
punishment for various offenses (e.g. complex
crimes).
If there are two offenses. It is still valid
but it is defective (Defect of duplicity).
If there are three or more defect of
multiplicity
Remedy: Motion to Quash
o At any time before he enters a
plea
o If he enters a plea without a
motion to quash, it is deemed
waived.
All generic and qualifying aggravating
circumstances must be alleged in the complaint or
information.
Amendments of a Complaint/Information
Amendment to change an allegation

Only the prosecution can amend. The judge may


refuse or allow an amendment.
Kinds of Amendments
1. Formal amendment as to form; changes
as to date, time, place, gender and the like
2. Substantial amendment as to substance
This kind of amendment changes the nature of
the offense charged and may affect the
jurisdiction of the court and the range of the
penalty. Generally, it is done with leave of
court.
Time
Before Plea
After Plea

Before Plea

After Plea

With or
Without
leave
Without leave

Kind

Substantial
and/or Formal
With leave
Only Formal;
Substantial (if
favorable to
the accused)
With leave;
Amendment
motion from that:
prosecution; a)Downgrades
notice to
the nature of
offended party the offense
b)Excludes
any accused
With leave
By reason of a
supervening
fact

Substitution of a Complaint/Information
If it appears at any time before judgment that a
mistake has been made in charging the proper
offense and the accused cannot be convicted of the
crime charged, the court will dismiss the
complaint/information upon filing of a new one
charging the proper offense.
Example:
Charge: Estafa

Evidence: Theft

The accused cannot be convicted of estafa or theft.


The court will dismiss the original
complaint/information and allow a new one.
In amendment, there is a likelihood that the right
against double jeopardy might be violated. The
moment the plea is entered, double jeopardy
already attaches.
In substitution, double jeopardy will not attach
because the offenses are not the same.
Amendment vs Substitution
1. In amendment, the offenses are the same,
or are included in the other; in substitution,
they are not the same.
2. An amendment may be formal or
substantial whereas a substitution is only
substantial.
3. An amendment does not always require
leave of court. A substitution always
requires leave of court.
4. In amendment, there is no need for
rearraignment. When there is a
substitution, the accused must be arraigned
anew.
The following private crimes cannot be prosecuted
de oficio:
1. Seduction, abduction, adultery,
concubinage, acts of lasciviousness
2. Defamation consisting of the imputation of
any of these offenses
3. Seduction (simple and qualified)
They can be prosecuted only when the offended
party files a complaint. When the complainant is a
minor, it can be signed by the offended party, the
parents, the grandparents, the guardian or the
State. (This list is exclusive and successive).
In the case of adultery and concubinage, only the
offended spouse can file the complaint. The
offended spouse must file the case against both
guilty parties. The spouse cannot complain if she
consented or pardoned one of the offending
parties. Pardon to one will benefit the other one.

Who must Prosecute a Criminal Action?


It must be prosecuted by public prosecutors.
Private prosecutors may prosecute but under the
direction and control of the public prosecutor.
Possible reasons for this may be a heavy work
schedule or the non-availability of a public
prosecutor.
The private prosecutor may be authorized in
writing, subject to the approval of the court, by the
public prosecutor to prosecute a criminal action.
Generally, if there is no private offended party,
there is no need for a private prosecutor.
RULE 111: PROSECUTION OF CIVIL
ACTION
General Rule: When a criminal action is instituted,
the civil action for the recovery of the civil
liability arising from the offense charged is
deemed instituted.
Exception:
1. When the offended party waives the civil
action
2. The offended party reserves the right to
institute it separately.
3. He has instituted the civil action prior to
the criminal action.
When the offended party waives the civil action,
the criminal case will no longer have a civil
aspect.
Reserving the Right to Institute a Civil Action
After the criminal action has been instituted, the
reservation shall be made before the prosecution
starts presenting its evidence and under
circumstances that would afford the offended
party a reasonable opportunity to make such
reservation.
The prosecution will present the evidence first. If
the prosecution will not present evidence, the

accused may still reserve provided that final


judgment has not been rendered.
There can be no reservation in the following cases:
a) Violations of BP 22
b) Criminal offenses committed by a public
officer in relation to his office
Extinction of Penal Action
The extinction of the penal action does not carry
with it the extinction of the civil action. If the
accused dies, his criminal liability will be
extinguished but not necessarily the civil liability
which will be charged against the estate. If the
accused is acquitted, he may be held civilly liable
except if the civil action is based on the delict and
there is a pronouncement by the court that the
crime did not exist.
Other Notes
A separate civil action cannot be filed if the
criminal case is still pending. While a criminal
action is instituted, the civil action will be
suspended in whatever stage before final judgment
until final judgment is rendered in the criminal
action.
Simply put, if the offended party reserved the right
to institute a separate civil action and the criminal
case is pending, he cannot file it until final
judgment has been rendered in the criminal case.
Notwithstanding the acquittal of the accused, a
civil action may still be filed if:
(1) The civil liability of the accused does not arise
from or is not based upon the crime of which the
accused is acquitted;
(2) The acquittal is based on reasonable doubt;
(3) The court declares that the liability of the
accused is only civil.
The civil action is extinguished if the act or
omission from which the civil liability may arise
did not exist.
Independent Civil Action

It can proceed independently of the criminal


action. It may be had when the action is based on
Arts 32, 33, 34 and 2176 of the Civil Code or it
arises from other sources of obligations other than
delicts.
Prejudicial Question
Elements:
a) There must be a civil case and a criminal
case.
b) A previously instituted civil action which
involves an issue similar or intimately
related to the issue raised in the subsequent
criminal action
c) The resolution of such issue determines
whether or not the criminal action may
proceed
The accused will be the one to file a motion for
suspension of the criminal action. It cannot be the
court or the prosecution.

c) Other officers as may be authorized by law


(e.g. PCGG, COMELEC, Ombudsman)
The preliminary investigation must be conducted
before entering of plea. By a entering a plea, he
waives his right to a preliminary investigation. If
the court enters plea, the remedy would be to
question it in a higher court.
Process
If there is no probable cause, the investigating
officer will dismiss it.
If there is probable cause, a subpoena will be
issued. It will inform the accused that he must
submit a counter-affidavit within a 10 day period.
If a clarification is needed, there will be a
clarificatory hearing but the accused cannot cross
examine witnesses. After which, it will be
determined whether it shall be dismissed or filed
in court.
OCP (Resolution)

If the case is undergoing PI, the accused can ask


for the suspension of PI. If the case is filed in
court, the accused can file a motion for suspension
at any time before the prosecution rests its case.
*** An independent civil action is different from a
prejudicial question.
RULE 112: PRELIMINARY
INVESTIGATION

DOJ (Resolution)
Court of Appeals (Petition for Certiorari)
Supreme Court (Petition for Review on Certiorari)
When the penalty is reclusion perpetua or life
imprisonment
OCP

A preliminary investigation is an inquiry or a


proceeding the purpose of which is to determine
whether there is sufficient ground to engender a
well-founded belief that a crime, punishable by at
least 4 years, 2 months and 1 day, has been
committed and the respondent is probably guilty
thereof, and should be held for trial.
The following may conduct a preliminary
investigation:
a) Provincial or City Prosecutors and their
assistants
b) National and Regional State Prosecutors

DOJ
Office of the President
Court of Appeals (Petition for Review under Rule
43)
Supreme Court (Petition for Review on Certiorari)
The City/Provincial Prosecutor will pass a
resolution, which may be reviewed by the DOJ,
and will then file an information in court. If the

DOJ reverses the decision of the City/Provincial


Prosecutor, it will order a motion to dismiss.
However, the court can deny such motion. Any
disposition of the case is now subject to the
authority of the court.
Mandamus and injunction are not remedies to
compel the prosecutor to file a case in court.
Once a case is filed, the executive steps out and
the judiciary steps in.
There is no need for preliminary investigation in a
valid warrantless arrest. The filing of the case
constitutes delivery.
If he has been arrested in a place where an inquest
prosecutor is available, an inquest will be
conducted instead of a preliminary investigation.
An inquest may only be conducted if the arrest is a
valid warrantless arrest.
The right to a preliminary investigation may be
waived provided it be in writing, in the presence
of counsel and waives Art 125 of the RPC.
Within 5 days, the accused may ask that a
preliminary investigation may be conducted.
Warrant of Arrest
Only a judge may issue a warrant of arrest.

When an MTC Judge issues a Warrant of Arrest


If the offense has a penalty of at least 4 years, 2
months and 1 day of imprisonment but not
exceeding 6 years, the MTC judge will issue a
warrant of arrest within five days from filing of
the information, the judge shall personally
evaluate the resolution of the prosecutor. If there is
no probable cause, the judge may dismiss the case.
If he finds probable cause, he shall issue a warrant
of arrest. If the judge doubts the existence of
probable cause, the judge may order the
prosecution to submit additional evidence within
five days from notice.
If the penalty is lower than 4 years, 2 months and
1 day of imprisonment and an information is filed,
the same process is done as that depicted in the
preceding paragraph. If a complaint is filed, the
MTC judge shall personally examine the
complainant and his two witnesses under oath
(Sec 2, Art III, 1987 Phil. Constitution).
When an MTC Judge may issue Summons
1) Offense does not need preliminary
investigation
2) Probable cause exists
3) No necessity to place accused in
immediate custody
RULE 113: ARREST

Within five days from filing of the information,


the judge shall personally evaluate the resolution
of the prosecutor. If there is no probable cause, the
judge may dismiss the case. If he finds probable
cause, he shall issue a warrant of arrest. If the
judge doubts the existence of probable cause, the
judge may order the prosecution to submit
additional evidence within five days from notice.

Arrest is the taking of a person into custody that


he may be bound to answer for the commission of
an offense.

A personal examination is done under oath in front


of a judge. This involves a person. On the other
hand, a personal evaluation is a process done by a
judge when he is evaluating a resolution and its
supporting documents.

A search warrants lifetime is ten days from the


date of its issue.

The person making the arrest has the duty to


deliver that person to the nearest police station or
municipal jail WITHOUT UNNECESSARY
DELAY.

A warrant of arrest has no definite lifetime. It shall


remain in effect until it is executed or revoked by

the court. In case of loss, the officer in charge may


get a new warrant called alias warrant of arrest.

A property bond is based on the tax declaration.


The assessed value must be equal or higher.

A police officer may arrest an individual without a


warrant in the following cases:
a) The person is committing or is about to
commit a crime in the presence of a public
officer.
b) A crime has just been committed and the
person arresting has personal knowledge of
the crime committed.
c) Escaped convicts
RULE 114: BAIL

Recognizance
It is a written undertaking that may be executed by
the accused that he will appear in court whenever
required by the court or the Rules of Court. It may
also be filed by another person on his behalf.

Bail is the security given for the release of a


person in custody of law, furnished by him or a
bondsman to guarantee his appearance before any
court whenever his appearance is required by the
court or by the Rules of Court.
A person is in custody of law if he is validly
arrested or he voluntarily surrenders.
An accused may be tried in absentia but there can
be no arraignment in absentia.
The identity must be established beyond
reasonable doubt.
Bail is not available if the accused is not in
custody of law.
It is the prosecutor who recommends the amount
of bail. A motion to reduce the motion of bail may
also be filed.
Kinds of Bail
1. Cash deposit
2. Property bond
3. Corporate surety
4. Recognizance
*Except for recognizance, the accused has
the option of posting the bail. The court
cannot impose the kind of bail, the accused
should post.

It is available in the following instances:


1. If the offender is charged with a light
offense
2. If the offender is a youthful offender (1518 y/o)
3. When the accused has been detained for a
period equal to or more than the minimum
of the imposable penalty without applying
the Indeterminate Sentence Law or any
modifying circumstance. If he is detained
for the maximum duration of his penalty,
he must be released immediately.
4. If the accused files an application for
probation
5. If the accused is charged with an offense
with a penalty of less than life
imprisonment, reclusion perpetua or death
and the accused is indigent.
Bail as a Matter of Right
Bail is a matter of right in the following
circumstances:
1. Before/after a judgment of conviction by
the MTC
2. Before judgment of conviction by the RTC
not punishable by life imprisonment,
reclusion perpetua or death
3. Before judgment of conviction by the RTC
punishable by death, reclusion perpetua or
life imprisonment when the evidence of
guilt is not strong
Bail as a Matter of Discretion
Bail is a matter of discretion after a judgment of
conviction has been rendered by the RTC and the
penalty is less than life imprisonment, reclusion
perpetua or death.

Bail is Neither a Matter of Right nor Discretion


Bail is neither a matter of right nor discretion in
the following cases:
1. Before judgment of conviction by the RTC
punishable by death, reclusion perpetua or
life imprisonment and the evidence of guilt
is strong
2. After judgment of conviction by the RTC
punishable by death, reclusion perpetua or
life imprisonment
3. After judgment of conviction by the RTC
and the penalty is less than death,
reclusion perpetua or life imprisonment
but more than six years of imprisonment
and there is a presence of any of the bail
negating circumstances
4. Upon finality of a judgment of conviction
unless the accused files an application for
probation.
Bail Negating Circumstances
The following are bail negating circumstances:
1. The accused is a recidivist, quasirecidivist, habitual delinquent or has
committed the crime aggravated by
reiteration.
2. The accused committed the crime while on
parole, probation or conditional pardon.
3. The accused has escaped from legal
confinement without justifiable reason or
evaded sentence or violated conditions of
bail.
4. There is an undue risk that the accused will
commit another crime during the pendency
of his appeal.
5. There is a probability of flight on the part
of the accused.
A summary hearing is conducted to determine
whether the evidence of guilt is strong.
Probation is only allowed if the penalty is not
more than six years of imprisonment.

a) Bail in the amount fixed may be filed with


the court where the case is pending, or in
the absence or unavailability of the judge
thereof, with any regional trial judge,
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in
the province, city, or municipality. If the
accused is arrested in a province, city, or
municipality other than where the case is
pending, bail may also be filed with any
regional trial court of said place, or if no
judge thereof is available, with any
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge
therein.
b) Where the grant of bail is a matter of
discretion, or the accused seeks to be
released on recognizance, the application
may only be filed in the court where the
case is pending, whether on preliminary
investigation, trial, or on appeal.
c) Any person in custody who is not yet
charged in court may apply for bail with
any court in the province, city, or
municipality where he is held.
If the record of the case has been forwarded to the
appellate court, the application for bail must be
filed in the appellate court.
If the judgment of conviction has changed the
nature of the offense from non-bailable to bailable,
application of bail may be filed with and acted
upon by the appellate court.
Example
The offense charged was changed from murder
(non-bailable) to homicide (bailable). The accused
then now may apply for bail in the appellate court.
However, the converse in not true since the right
of the accused to be informed of the charge, nature
and cause of accusation against him will be
violated.
Extradition Cases

Where to File Bail

It is only possible if two countries have an


extradition treaty. The extraditee may be entitled
to bail provided the he must show by clear and
convincing evidence that he is not a flight risk.
Deportation Proceedings
The deportee may be granted bail by the
immigration commissioner and not by the court.
The power of the immigration commissioner to
grant bail is discretionary. Once the deportation
order is issued, bail may no longer be granted. A
hold departure order may be issued by the RTC.
The DOJ cannot issue it bit it may issue a watch
list order.
Conditions of Bail
The following are the conditions of bail:
1. Bail shall remain in effect from its
approval by the RTC, unless cancelled, at
all stages of the case until promulgation of
the judgment of the Regional Trial Court,
irrespective of whether the case was
originally filed in or appealed to it.
2. The accused shall appear in court
whenever required by the court.
3. Failure to appear in court notwithstanding
notice shall be constituted as a waiver of
his right to appear and may be tried in
absentia.
4. The bondsman shall surrender the accused
to the court for execution of the final
judgment.

If the accused/bondsman was not able to comply,


the court shall issue an order of confiscation. The
bond will be confiscated in favor of the
government.
The court cannot require arraignment before
posting of bail except in cases involving
recognizance.
Cancellation of Bail
It is different from confiscation of bail wherein the
amount of bail will go to the government. The
amount given as bail will return to the bondsman.
It may be obtained in the following circumstances:
a) Cancellation upon application
i)
It may be issued upon proof of the
death of the accused.
ii)
Upon surrender of the accused the
bondsman will bring the accused to
court and ask for the cancellation of
bail.
b) Automatic cancellation
i)
Upon dismissal of the case against the
accused
ii)
Upon acquittal of the accused
iii)
Upon execution of the judgment of
conviction
RULE 115: RIGHTS OF THE ACCUSED

Order of Forfeiture
It is issued by the court if the accused fails to
appear when required by the court. It is issued in
order to forfeit the bond. It orders the accused or
the bondsmen to within 30 days from receipt of
the order to:
a) Produce the body of the accused in court
b) Explain why the accused did not appear
before the court when required to do so
c) Show cause why no final judgment shall
be rendered against him for the amount if
his bail.
*If all of these are present, the order of
forfeiture will be set aside.

In all criminal prosecutions, the accused shall be


entitled to the following rights:
(a) To be presumed innocent until the contrary is
proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the
accusation against him.
(c) To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The
accused may, however, waive his presence at the

trial pursuant to the stipulations set forth in his


bail, unless his presence is specifically ordered by
the court for purposes of identification. The
absence of the accused without justifiable cause at
the trial of which he had notice shall be considered
a waiver of his right to be present thereat. When
an accused under custody escapes, he shall be
deemed to have waived his right to be present on
all subsequent trial dates until custody over him is
regained. Upon motion, the accused may be
allowed to defend himself in person when it
sufficiently appears to the court that he can
properly protect his right without the assistance of
counsel.
(d) To testify as a witness in his own behalf but
subject to cross-examination on matters covered
by direct examination. His silence shall not in any
manner prejudice him.
(e) To be exempt from being compelled to be a
witness against himself.
(f) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize as
part of its evidence the testimony of a witness who
is deceased, out of or cannot with due diligence be
found in the Philippines, unavailable or otherwise
unable to testify, given in another case or
proceeding, judicial or administrative, involving
the same parties and subject matter, the adverse
party having the opportunity to cross-examine
him.
(g) To have compulsory process issued to secure
the attendance of witnesses and production of
other evidence in his behalf.

RULE 116: ARRAIGNMENT AND PLEA


The accused shall be arraigned before the court in
which the case is assigned for trial. The accused is
arraigned by reading to him the
complaint/information in a dialect or language he
understands. If this is not complied with, the
arraignment would be void. The purpose of
arraignment is to inform the accused of the nature
and cause of accusation against him.
Suspension of Arraignment
Arraignment can be suspended in any of the
following instances:
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 and if necessary,
his confinement for such purpose.
2. There exists a prejudicial question.
3. A petition for review of the resolution of
the prosecutor is pending at either the
Department of Justice, or of the Office of
the President, provided that the period of
suspension shall not exceed 60 days
counted from the filing of the petition with
the reviewing office.
Two Parts of an Arraignment
1. Reading of the complaint/information
(This cannot be waived).
2. Entering of plea by the accused
The accused must enter the plea personally. The
accused must also be present in the reading of the
complaint.

(h) To have speedy, impartial and public trial.


(i) To appeal in all cases allowed and in the manner
prescribed by law.
The burden to prove the guilt of the accused
beyond reasonable doubt lies with the prosecution.
The accused does not need to prove his innocence.

Entering of Plea
It may be a plea of guilty or not guilty. The
accused must enter the plea personally. However
there are cases when the court will enter a plea of
not guilty for the accused. They are:

1. When the accused refuses to enter a plea.


This is to preserve the right of the accused
to question the complaint/information.
2. When the accused enters a conditional plea
of guilty, which is void under the law.
3. When the accused pleads guilty but
presents exculpatory evidence.
4. In environmental cases, when the accused
is notified of the arraignment but
notwithstanding notice to the accused fails
to appear then he may be arraigned in
absentia and the court will enter a plea of
not guilty for the accused.
The accused signs an undertaking that the court
will enter a plea for him if he does not appear
during arraignment when he posts bail.
Plea Bargaining
The accused pleads guilty to a lesser offense
necessarily included in the crime charged. It is
valid only if it is done with the consent of the
prosecutor and the offended party.

the courts discretion. The plea of guilty that was


withdrawn is not admissible in evidence.
Bill of Particulars
The accused may, before arraignment, move for a
bill of particulars to enable him properly to plead
and prepare for trial. The motion shall specify the
alleged defects of the complaint or information
and the details desired.
RULE 117: MOTION TO QUASH
It must be a written motion. The accused is the one
who files a motion to quash.
The following are the grounds for a motion to
quash (FJJOCMELD):
(a) That the facts charged do not constitute an
offense;
(b) That the court trying the case has no
jurisdiction over the offense charged;

Exception: If the offended party is notified of the


arraignment but notwithstanding notice, the
offended party fails to appear in arraignment. The
accused may plead guilty to a lesser offense with
the consent of the prosecutor only.

(c) That the court trying the case has no


jurisdiction over the person of the accused;

The accused should be present during arraignment


for the following reasons:
1. For purposes of plea bargaining
2. For determination of the civil liability of
the accused
3. Other matters regarding his presence

(e) That it does not conform substantially to the


prescribed form;

For violations of RA 9165 (Dangerous Drugs Act),


plea bargaining is not allowed.

(g) That the criminal action or liability has been


extinguished;

Improvident Plea of Guilty


This is made under a mistaken assumption or
misleading information. The remedy of the
accused is to withdraw his improvident plea of
guilty. It can be made at any time before the
judgment of conviction becomes final. The
granting if the motion to withdraw will depend on

(h) That it contains averments which, if true,


would constitute a legal excuse or justification;
and

(d) That the officer who filed the information had


no authority to do so;

(f) That more than one offense is charged except


when a single punishment for various offenses is
prescribed by law;

(i) That the accused has been previously convicted


or acquitted of the offense charged, or the case

against him was dismissed or otherwise


terminated without his express consent.

accused.

accused, the
prosecution or both.
It is made for any
reason at all or no
reason at all.
It is made at any time
even during trial.

A motion to quash is filed at any time before the


accused enters a plea. It is deemed waived except
for a, b, g and i if the accused failed to file a
motion to quash and enter a plea.

It is filed based on the


grounds provided by
law.
It is made before
entering a plea.

If a motion to quash is denied, the accused can


enter a plea and go to trial. If it is granted, the
prosecution may (a) amend the complaint or
information if the defect may be cured by
amendment or (b) refile the case or (c) appeal
from the order dismissing the case. If the ground is
g or i, the sole remedy is to appeal.

Usually, a motion for provisional dismissal is


made if the offended party could not be found. It
can also be made if the whereabouts of the
witnesses could not be ascertained. It is also
possible for a provisional dismissal to set in if
there is a possibility of an amicable settlement
between the accused and the complainant.

If the facts charged do not constitute an offense,


even if you plead guilty, you cannot be held liable.

If the accused did not give his express consent, he


may ask the court to require the prosecution to
present evidence and invoke his right to a speedy
trial.

Provisional Dismissal of a Case


It is a temporary dismissal. The dismissal should
be with the express consent of the accused and
notice to the offended party. The criminal case
may be revived within a certain time.

If the dismissal has become permanent, the case


may not be refiled. Otherwise, it would violate the
accuseds right against double jeopardy.

If the penalty does not exceed six years of


imprisonment or if it is punishable by a fine of any
amount, the dismissal will become permanent if
not revived within 1 year from dismissal.

Pre-trial is mandatory in both civil and criminal


cases.

If the penalty exceeds six years of imprisonment,


the dismissal will become permanent if it is not
revived within two years from dismissal.

Before pre-trail, the case may be mediated


provided that it is mediatable. The dispute may
undergo alternative dispute resolution.

The accused, the prosecution or both of them can


ask for a provisional dismissal. They may ask for a
provisional dismissal at any time. It may be asked
for orally or through a written motion.

The following forms of alternative dispute


resolution:
a) Mediation
b) Arbitration
c) Conciliation
d) Mini-Trial
e) Early Neutral Evaluation
f) Any combination of the foregoing

MOTION TO
QUASH
It is made in writing.
It is filed by the

MOTION FOR
PROVISIONAL
DISMISSAL
It can be made orally
or through a written
motion.
It is made by the

RULE 118: PRE-TRIAL

Court Annexed Mediation


The purpose is to arrive at a settlement. If the
mediation fails, it goes back to the court where it

came from. All conversations in the mediation are


privileged. It will then be referred to JDR.
Judicial Dispute Resolution
This is done by the judge personally unlike in
CAM where a mediator facilitates the
proceedings. If JDR also fails, the case will be reraffled to another branch.

After the pre-trial conference, the court shall issue


an order reciting the actions taken, the facts
stipulated, and evidence marked. Such order shall
bind the parties, limit the trial to matters not
disposed of, and control the course of the action
during the trial, unless modified by the court to
prevent manifest injustice.
RULE 119: TRIAL

Matters to be Considered in Pre-Trial


The following are the matters that are to be
considered in pre-trial:
(a) Plea bargaining;
(b) Stipulation of facts the facts that have been
stipulated need not be proven anymore for they
partake the nature of a judicial admission;
(c) Marking for identification of evidence of the
parties;
(d)Waiver of objections to admissibility of
evidence the evidence must be both relevant and
competent;
(e) Modification of the order of trial if the accused
admits the charge but interposes a lawful defense;
and
(f) Such other matters as will promote a fair and
expeditious trial of the criminal and civil aspects
of the case.
All agreements or admissions made or entered
during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel,
otherwise, they cannot be used against the
accused. Such document is called a pre-trial
agreement.
If the counsel for the accused or the prosecutor
does not appear at the pre-trial conference and
does not offer an acceptable excuse for his lack of
cooperation, the court may impose proper
sanctions or penalties.

If the case goes to trial, the prosecution will


present its evidence first (i.e. witnesses and
material evidence). Once all of these are done, the
prosecution will rest its case.
The accused may or may not present evidence. If
there are several accused, anyone of them may ask
for a separate trial.
Demurrer to Evidence
The accused may file a demurrer to evidence. It is
in the nature of a motion to dismiss based on the
ground of insufficiency of evidence.
The court may dismiss the criminal action based
on insufficiency of evidence:
a) Upon its own initiative after giving the
prosecution an opportunity to demur
b) Upon a demurrer to evidence filed by the
accused with or without leave of court
An accused may file a demurrer to evidence
within five days from the time the prosecution
rests its case.
Opportunity to be heard the court will issue an
order directing the prosecution to show any cause
as to why the case should not be dismissed on
insufficiency of evidence.
In both criminal and civil cases, the ground of a
demurrer to evidence is insufficiency of evidence
but the test of insufficiency is not the same. In a
criminal case the degree of proof should be proof
beyond reasonable doubt whereas civil cases
require merely a preponderance of evidence.

If the accused filed a demurrer without leave of


court, the accused waives the right to present
evidence and submits the case for decision based
on the evidence presented by the prosecution.

If it is acquittal, the judgment may be based on


reasonable doubt. It may also be decided that the
liability is only civil and not criminal or the
act/omission does not arise from delict. In these
cases, the civil liability is not extinguished.

If the demurrer is filed with leave of court and it is


denied, the accused does not waive his right to
present evidence. Notwithstanding denial, a
demurrer may still be filed but it would be without
leave of court. If it is granted, the case will be
dismissed.

If the accused is convicted, he is also civilly liable.

A possible remedy if the demurrer is granted is to


file a petition for certiorari under Rule 65. In
granting the demurrer, the court may have
exercised grave abuse of discretion amounting to
lack or excess of jurisdiction. It may be that by
granting the demurrer, the State is denied due
process.

If the demurrer is granted but there may be


sufficient evidence to prove the claim of the
offended party by preponderance of evidence, the
court will allow the accused to present evidence
on the civil aspect of the case.
Discharge of the Accused to be presented as a
State Witness
The discharge operates as an acquittal. In order to
be a state witness, the following requisites must
concur:
a) There must be several accused
b) Before the prosecution rests its case, the
prosecution will file a motion to discharge
one or some of the accused
c) It must be with the consent of the accused
d) A motion must be set for hearing
e) Satisfaction of the requirements in the next
paragraph
f) An order must be issued discharging the
accused

If the court grants the demurrer, it will dismiss the


case. This dismissal amounts to an acquittal. The
prosecution may no longer appeal the case. To
allow appeal would violate the right of the accused
against double jeopardy. The remedy of the
prosecution would be to file a petition for
certiorari under Rule 65. In certiorari, the right of
the accused against double jeopardy will not
attach because the judgment is void. An appeal
questions the correctness of a decision whereas
certiorari questions the validity of the judgment.
Resolution of Civil Liability of the Accused after a
Demurrer to Evidence has been filed
If the demurrer is filed without leave of court, the
court will decide on both the criminal and civil
aspects of the case except when:
a) The offended party waived the institution
of the civil action.
b) The offended party reserved the right to
file a separate civil action.
c) The civil action was instituted prior to the
criminal action.
The judgment may be an acquittal or a conviction.

If the demurrer is filed with leave of court and it is


denied, the accused will present evidence both in
the criminal and civil aspect of the case and the
court will render a decision.

The motion to discharge must be accompanied by


a sworn statement of the accused. The evidence
must be evaluated together with the sworn
statement. The court must be satisfied that:
(a) There is absolute necessity for the testimony of
the accused whose discharge is requested;
(b) The is no other direct evidence available for
the proper prosecution of the offense committed,
except the testimony of said accused;

(c) The testimony of said accused can be


substantially corroborated in its material points;
(d) Said accused does not appear to be the most
guilty; and
(e) Said accused has not at any time been
convicted of any offense involving moral
turpitude.
The person who is qualified to be a state witness is
the person who is the least guilty, as long as at the
time of the discharge, he does not appear to be the
guiltiest.
Execution of a Sworn Statement
If the motion is denied, the sworn statement
becomes inadmissible and will be considered as
hearsay. If the motion is granted, the sworn
statement becomes admissible. It shall operate as
an acquittal, if there is an order of discharge
except:
a) If he refuses to testify
b) The testimony is not consistent with his
sworn statement
The accused must not be compelled to be a state
witness. He must testify voluntarily and
knowingly. There must be no fraud perpetrated
upon him by the prosecution.
The civil liability of the state witness is not
extinguished. However, the civil liability may not
be tried anymore in the same criminal case.
Witness Protection
Program Under
RA 6987
It applies only to grave
felonies or its
equivalent under
special laws.
There must be a threat
to the life of the
witness or members of
his family within the

Discharge of the
Accused Under
Rule 119
It applies to all
offenses.
There is no such
requirement.

second degree of
consanguinity/affinity.
The witness must not
be a member of a law
enforcement body or
agency.
The witness need not
be charged elsewhere.

The witness enjoys


benefits (e.g. housing,
relocation,
allowances)
Immunity from
prosecution is granted
by the DOJ.

There is no such
limitation.
The witness should be
first included as an
accused then
discharged upon
motion of the
prosecution.
The witness does not
enjoy such benefits.
Immunity is granted
by the court.

Statutory Immunities
These are granted by certain laws.
1. Transactional Immunity the witness
cannot be prosecuted for any offense
arising from or which may arise from
transaction or occurrence to which his
testimony relates. It is also known as total
immunity or blanket immunity.
2. Use-and-derivative-use Immunity the
testimony of the witness testifying cannot
be used against him in any future
prosecution. The witness may still be
prosecuted. It is limited compared to
transactional immunity.
RULE 120: JUDGMENT
A judgment is a written adjudication by the court
that the accused is guilty or not guilty of the
offense charged and the imposition on him of the
proper penalty and civil liability, if any.
The following are the requisites of a judgment:
1. It must be in writing

2. It is personally and directly prepared by


the judge
3. The judgment must state the facts and the
law upon which it is based
4. It must be signed by the judge
5. It must be filed with the Clerk of Court
If any of the requisites are absent, the judgment is
void.
Promulgation of Judgment in Criminal Cases
The judgment is read to the accused during the
incumbency of the judge who penned the
judgment. It is possible that the judge will try the
case and another will pen the judgment.
If the judgment does not contain the facts and the
law upon which it was based, the judgment is
void. This is called a sin perjuicio judgment.
If the court cites the wrong law, the judgment is
valid but wrong. If the judgment is correct but
does not state the law upon which it is based, it is
correct but void.
If the judgment is valid but wrong, the remedy is
to appeal. If the judgment is void but correct, the
remedy is certiorari.
There must be a valid judgment for double
jeopardy to attach.
When the judge is absent or outside the province
or city, the judgment may be promulgated by the
clerk of court. A judgment may be promulgated
even in the absence of the accused provided that
there must be notice and notwithstanding notice,
he fails to appear without justifiable cause.
If the judgment is promulgated in the absence of
the accused, it must be recorded in the criminal
docket and a copy of the judgment should be
furnished to him thru counsel or to his last known
address.
Remedies against Judgment

After 15 days, the judgment becomes final. If it


has not become final, there are remedies:
1. Appeal
2. Motion for New Trial
3. Motion for Reconsideration
4. Motion for Reopening of Trial
An accused who did not appear in the
promulgation will lose the right to use these
remedies against judgment. The accused can
regain the right to use these remedies if within 15
days from promulgation he surrenders to the court
or files a motion for leave to avail of the remedies.
If must explain why he failed to appear at the
promulgation. If the reason is justifiable, the court
will grant the motion. Otherwise, the court will
deny it.
There must be a liberal interpretation in favor of
the accused. He shall be allowed to avail himself
of the said remedies within 15 days from notice.
RULE 121: NEW TRIAL OR
RECONSIDERATION
At any time before judgment of conviction
becomes final, the court may, upon motion of the
accused or at its own instance, but with the
consent of the accused, grant a new trial or
reconsideration.
The following are the grounds for new trial:
1. Errors of law or irregularities prejudicial to
the substantial rights of the accused have
been committed during the trial.
2. Newly discovered evidence
a) Evidence could not have been
discovered during trial even with due
diligence
b) It must be discovered after trial
c) If presented or admitted, the evidence
will probably alter the result of the trial
As for reconsideration, the court shall grant it on
the ground of errors of law or fact in the judgment,
which requires no further proceedings.

Rule 119, Sec 24


Reopening
To avoid miscarriage
of justice

Rule 121, Sec 1


New Trial/
Reconsideration
2 grounds

If a motion for new trial is granted:


a) The order granting new trial vacates
judgment.
b) The case will stand for trial de novo.
c) The evidence adduced at the former trial
not affected by the irregularities will be
used for the new trial without need for
retaking them. Those affected with
irregularity will be set aside. Newly
discovered evidence will be automatically
reproduced.
RULE 122: APPEAL
An appeal must be taken within fifteen (15) days
from promulgation of the judgment or from notice
of the final order appealed from. This period for
perfecting an appeal shall be suspended from the
time a motion for new trial or reconsideration is
filed until notice of the order overruling the
motion shall have been served upon the accused or
his counsel at which time the balance of the period
begins to run.
The following may file an appeal:
1. The State provided the appeal will not
place the accused in double jeopardy.
2. The accused from judgment of conviction.
3. The offended party with respect to the civil
aspect of the case.
A non-party cannot appeal the case.
Effect of Appeal on the Judgment
The appeal stays the judgment.
Suppose the promulgation happened on July 1.
The appellant has a period of 15 days to appeal.
This means that the appellant has until July 16 to
appeal. If the accused appealed on July 15, and the

appeal is still pending on September 23, the


judgment does not become final because the
judgment is stayed.
Suppose there are two accused and were found
guilty, one of them appeals and the other does not.
The judgment becomes final as to the accused who
did not appeal but judgment is stayed as to the
accused who appealed from the judgment. The
judgment of the court in an appeal will only affect
the accused who did not appeal, if the judgment is
applicable and favorable.
MODES OF APPEAL IN CRIMINAL CASES
The court will dismiss the appeal if the mode of
appeal is wrong or filed in the wrong court. The
judgment then becomes final.
I. Ordinary Appeal
It is done by notice of appeal. It is filed in the
court that rendered the judgment subject of the
appeal. A motion for extension cannot be filed.
The appellate court will send a notice to the
accused to submit appellants brief within 30 days.
II. Petition for Review
III. Petition for Review on Certiorari
Illustrations
Supreme Court
Rule 45 (PRC)
Court of Appeals
Rule 42 (PR)
RTC
MTC Notice of Appeal
Here the RTC is an appellate court. If the MTC
renders a judgment of conviction, appeal is to the
RTC by filing a notice of appeal in the MTC. If
the RTC affirms the judgment of the MTC, appeal
to the Court of Appeals by filing a petition for
review. If the judgment of the RTC is affirmed,
file a petition for review on certiorari to appeal
from the Court of Appeals.

Supreme Court
Rule 45 (PRC)
Court of Appeals
RTC Notice of Appeal
Here the RTC is an original court. If the RTC
renders a judgment of conviction less than death,
reclusion perpetua or life imprisonment, appeal is
to the Court of Appeals by filing a notice of appeal
in the RTC. If the Court of Appeals affirms the
judgment of the RTC, appeal to the Supreme
Court by filing a petition for review on certiorari.
Supreme Court
Notice of Appeal
Court of Appeals
RTC Notice of Appeal
If the RTC renders a judgment of conviction of
reclusion perpetua or life imprisonment, appeal is
to the Court of Appeals by filing a notice of appeal
in the RTC. If the Court of Appeals affirms the
judgment of the RTC, appeal to the Supreme
Court by filing a notice of appeal in the Court of
Appeals.
Supreme Court
Court of Appeals
RTC
If the RTC imposes the penalty of death, the case
goes to the Court of Appeals on automatic review.
The accused does not need to do anything. If the
Court of Appeals affirms the judgment, it shall
render judgment but refrain from entering the
judgment, it shall elevate the record of the case to
the Supreme Court for review.
Modes of Appeal in the Sandiganbayan
Supreme Court
Rule 45 (PRC)

Sandiganbayan
Rule 42 (PR)
RTC
MTC Notice of Appeal
Here the RTC is an appellate court. If the MTC
renders a judgment of conviction, appeal is to the
RTC by filing a notice of appeal in the MTC. If
the RTC affirms the judgment of the MTC, appeal
to the Sandiganbayan by filing a petition for
review. If the judgment of the RTC is affirmed,
file a petition for review on certiorari to appeal
from the Sandiganbayan.
Supreme Court
Rule 45 (PRC)
Sandiganbayan
RTC Notice of Appeal
Here the RTC is an original court. If the RTC
renders a judgment of conviction less than death,
reclusion perpetua or life imprisonment, appeal is
to the Sandiganbayan by filing a notice of appeal
in the RTC. If the Sandiganbayan affirms the
judgment of the RTC, appeal to the Supreme
Court by filing a petition for review on certiorari.
Supreme Court
Notice of Appeal
Sandiganbayan
Here the Sandiganbayan is an original court. If the
Sandiganbayan renders a judgment of conviction
of reclusion perpetua or life imprisonment, appeal
is to the Supreme Court by filing a notice of
appeal in the Sandiganbayan.
Supreme Court
Sandiganbayan
If the Sandiganbayan imposes the penalty of
death, the case goes to the Supreme Court on
automatic review.

Supreme Court
Sandiganbayan
RTC Notice of Appeal
If the RTC renders a judgment of conviction of
reclusion perpetua or life imprisonment, appeal is
to the Sandiganbayan by filing a notice of appeal
in the RTC. If the Sandiganbayan affirms the
judgment of the RTC, it shall render judgment but
refrain from entering judgment and elevate the
record of the case to the Supreme Court for
review.
Supreme Court
Sandiganbayan
RTC

a) When there is a deprivation of


constitutional rights
b) When the court has no jurisdiction to
impose the sentence
c) When the penalty is too excessive
d) The result of the post-judgment DNA
examination shows the accused did not
commit the crime
The following are the requisites of a postjudgment DNA examination:
a) Existence of DNA samples
b) Relevancy of the DNA sample
c) The result is likely to cause a reversal or
modification of the judgment of conviction
A DNA examination may be conducted even
without a court order. The accused or the
prosecution may request for the DNA
examination.

If the RTC imposes the penalty of death, the case


goes to the Sandiganbayan on automatic review.
The accused does not need to do anything. If the
Sandiganbayan affirms the judgment, it shall
render judgment but refrain from entering the
judgment, it shall elevate the record of the case to
the Supreme Court for review.

A search warrant is an order in writing issued in


the name of the People of the 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.

If there is already a judgment of acquittal, there is


no need for appeal anymore.

An application for search warrant shall be filed


with the following:

In filing a notice of appeal, the record of the case


will be transmitted by the Clerk of Court to the
Court of Appeals, then it will give notice to the
appellant to file his brief within 30 days. The
appellants brief contains: a) a statement of the
case, b) statement of facts, c) the issues involved,
d) an assignment of errors and e) the arguments of
the appellant.

a)
Any court within whose territorial
jurisdiction a crime was committed.

The fresh 15 day rule also applies to criminal


cases.
A Petition for Habeas Corpus is available in the
following cases:

RULE 126: SEARCH AND SEIZURE

b)
For compelling reasons stated in the
application, any court within the judicial region
where the crime was 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.
However, if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending.

A search warrants validity shall last for ten days


after which the warrant becomes void and
ineffective. You can continue to search on the next
day provided that the next day is still within the
ten day period if interrupted by forces beyond
your control (e.g. earthquake).
It can be issued for only one offense. Otherwise, it
is void. Such a warrant is called a scattershot
warrant.
The validity of a search warrant can be challenged
using the following methods:
a) Motion to quash the search warrant
b) Motion to suppress the illegally obtained
evidence
If the motion to quash is denied, the party
challenging the validity of the warrant may no
longer use the second option.
A motion to quash a search warrant and/or to
suppress evidence obtained thereby may be filed
in and acted upon only by the court where the
action has been instituted. If no criminal action
has been instituted, the motion may be filed in and
resolved by the court that issued the search
warrant. However, if such court failed to resolve
the motion and a criminal case is subsequent filed
in another court, the motion shall be resolved by
the latter court
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of
an offense without a search warrant.

The officer, if refused admittance to the place of


directed search after giving notice of his purpose
and authority, may break open any outer or inner
door or window of a house or any part of a house
or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him
when unlawfully detained therein.
No search of a house, room, or any other premise
shall be made except in the presence of the lawful
occupant thereof or any member of his family or
in the absence of the latter, two witnesses of
sufficient age and discretion residing in the same
locality.
The warrant must direct that it be served in the day
time, unless the affidavit asserts that the property
is on the person or in the place ordered to be
searched, in which case a direction may be
inserted that it be served at any time of the day or
night.
The officer seizing property under the warrant
must give a detailed receipt for the same to the
lawful occupant of the premises in whose presence
the search and seizure were made, or in the
absence of such occupant, must, in the presence of
at least two witnesses of sufficient age and
discretion residing in the same locality, leave a
receipt in the place in which he found the seized
property.
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of
an offense without a search warrant.