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Iigo Notes in Criminal Procedure |1

BACKGROUND ON CRIMINAL emphasis on the governments role. The

PROCEDURE accusatorial system on the other hand, holds a
different view baliktad! The role or participation
of the State is secondary. We give more
We will now go to Criminal Procedure proper. importance on the right or role of the accused or
the private victim.
Q: Define Criminal Procedure.
A: It is the method prescribed by law for the Q: Which of the 2 systems is recognized in
apprehension and prosecution of persons the Philippines?
accused of any criminal offense and for their A: Ours is a mixed system so,
punishment in case of conviction. (Clarks Hybrid/Mestizo [murag is Jet!] because the
Criminal Procedure, p.1) features of both system are found in our law.

HISTORY OF CRIMINAL PROCEDURE IN THE Q: What are some of the inquisitorial aspects
PHILIPPINES of our system of criminal procedure where the
emphasis is on the governments role?
Remember our criminal procedure is A: The following:
patterned after the U.S. law. So lets trace its
origin: 1. The prosecution of criminal cases is
largely controlled by the public
The first law on criminal procedure is General prosecutor. Yong fiscal, siya man
Order No. 58 promulgated on April 23, 1900 by ang may say bahso, under the
Major General Otis of the U.S. Armed Forces. direction or control of the fiscal or
That went on up to 1940 The Old Rules of Court. prosecutor;
After that is the 1964 Revised Rules of Court. 2. Preliminary investigation is required.
Next is the 1985 Rules of Criminal Procedure You cannot go to court and file it.
which was amended 3 years later, and again The fiscal will determine whether
amended on 1991 (on Rule 114). to file it or not. Now can he
conduct a preliminary investigation
And finally the most thorough amendment kung wala ang accused? Well, if
which took effect last December 1, 2000 the you are notified, ayaw mong
2000 Rules on Criminal Procedure. So that is now magbigay ng counter-affidavit,
the present law. I hope you have the copy. Do then tuloy! Bahala ka dyan! Basta
they have already commercial? Wala pa? Ok. Ah! ang importante ang role ng
That is the one prepared by the faculty during the government;
seminar where I talked (ehem!). Since you are 3. In case the accused is sentenced to
using it, meron man akong ibang kopya ba! death, whether the accused likes it
Malakiganyan odirect from the Supreme or not, there will be a review of
Court [idol jud nako si Dean!!!] and I have it book- death sentence because that is
bound. what public interest says.

SYSTEMS OF PHILIPPINE CRIMINAL Q: What are some of the accusatorial aspects

PROCEDURE of our system of criminal procedure where the
emphasis is on the role of the accused or the
There are generally two (2) systems of offended party?
criminal procedure: A: The following:
1. Inquisitorial System; and
2. Accusatorial System. 1. The accused is entitled to a public
trial. That is not for the benefit of
Remember in a criminal case there are three the government but that of the
(3) parties: accused;
1. state, through prosecutor; 2. It is the right of the accused to be
2. accused; and present at every stage of the
3. private victim. proceeding;
3. It is the right of the offended party to
Under the inquisitorial system, it is a intervene by hiring a private
government show and the accused and the prosecutor.
private victim is only incidental. So there is more
Iigo Notes in Criminal Procedure |2

The area of authority of said court is found in

Section 2 of the Interim Rules:


Jurisdiction of Courts
Metropolitan Trial Courts,
Before we take up the rules on criminal Municipal Trial Courts, and
procedure, we have to review the law on Municipal Circuit Trail Courts
jurisdiction. Just like in civil cases, we have to shall exercise their jurisdiction
know the jurisdiction of the different courts before in the city, municipality or
we take up the provisions. circuit for which the judge
thereof is appointed or
Q: How do we define jurisdiction with designated. Thus, a judge
reference to criminal cases? appointed to the municipality or
A: Jurisdiction in criminal cases has been circuitized municipalities would
defined as the power and authority of a court to have jurisdiction over the said
take cognizance of an offense and to pronounce place.
the judgement or sentence provided by law after (a) Regional Trial Courts
a trial in the manner prescribed. (Albert, Law on shall exercise its jurisdiction
Criminal Procedure, p. 56) within the area defined by the
Supreme Court as the territory
Q: What are the elements of jurisdiction in over which the particular
criminal cases: branch concerned shall exercise
A: The following: its authority, in accordance with
1. Territorial jurisdiction; Section 18 of B.P. Blg. 129.
2. Jurisdiction over the subject matter;
and There is no problem with the MTCs and
3. Jurisdiction over the person of the MCTCs where the crime is committed there. Pero
accused. yung RTC, it is not really the province because
the province can be split into several areas -
First Element: TERRITORIAL JURISDICTION itong RTC branch na ito, dito ka. So it is the limit
of its authority as defined by the SC pursuant to
In civil cases, the place is never considered the Judiciary Law the place or municipality
part of jurisdiction. It is only a question of venue where the particular RTC branch exercises
that the case should be tried in Manila or Davao jurisdiction. Every RTC branch has its own area
is never considered as jurisdictional. But in of responsibility.
criminal procedure, the place where the trial is to
be heard is not only a question of venue but also Meaning, in one province there are many RTC
a question of jurisdiction. It is called territorial branches which are scattered. A branch in a
jurisdiction. particular place will only exercise jurisdiction over
its designated territory, a small portion, not the
Q: Define Territorial Jurisdiction. whole province. The territory is defined by the SC.
A: Territorial jurisdiction refers to the limits of (Section 18, B.P. Blg. 129)
the geographical boundaries of a place within Second Element: JURISDICTION OVER
which a court has jurisdiction to act judicially and THE SUBJECT MATTER
outside of which its judicial acts are null and void.
(Mendoza vs. B.T. Co., 90 Phil. 804) Q: How is jurisdiction over the subject matter
in criminal cases determined?
Q: How is territorial jurisdiction in criminal A: It is determined by the allegations of the
cases determined? complaint or information in accordance with the
A: The territorial jurisdiction of a court in law in force at the time of the institution of the
criminal cases is determined by the geographical action, not at the time of the commission of the
area over which it presides, and the fact that the offense. (U.S. vs. Mallari, 24 Phil. 366; People vs.
crime was committed, or any of its essential Pegarum, 58 Phil. 715)
ingredients took place, within said area is an
element of jurisdiction. (U.S. vs. Jueves, 23 Phil. EXAMPLE: At the time the crime is
100) committed, it was triable by the RTC, but when
the charge was filed in court, it is MTC na
Iigo Notes in Criminal Procedure |3

because the jurisdiction of the MTC was 2. Other offenses which, although not so
increased. punished, arose out of the same
occurrence or which may have been
Q: Saan ang sundin natin? RTC, which is the committed by the accused on the same
law at the time the crime is committed? Or MTC, occasion as that giving rise to the more
which is the law at the time the case was filed? serious offense, regardless of whether the
A: Dun sa MTC. You follow the latter. This is accused are charged as principals,
not a question of prejudice, this is purely accomplices, or accessories, or whether
procedural. We are not talking here of a they have been tried jointly or separately.
retroactive effect of penal law where the law is
more favorable to the accused no? This is just a EXAMPLE: Hannah is the principal,
question of jurisdiction, not a question of law. So, accused of murder. Maying is the
it is the law in force at the time of the filing of the accomplice and JJ is the accessory. All of
action is what determines the jurisdiction of the them are found guilty. For the principal,
court. sigurado perpetua ang pinakamababa
nyan so SC ka!
Q: To be more precise, how do we know How about the accomplice? Reclusion
where the court has or no jurisdiction? Temporal man lang yan ba! And the
A: Essentially, it is determined by the penalty accessory? Prision Mayor. In order not to
provided by the law for the offense as that offense split the jurisdiction, all of them will be
is charged in the complaint or information. appealed to the SC.
(People vs. Pecson, 92 Phil. 172; Punzalan vs.
People, 99 Phil. 295) 3. Even if the penalty is less than reclusion
perpetua, death or life imprisonment,
Third Element: JURISDICTION OVER THE where the issue on appeal is pure
PERSON OF THE ACCUSED question of law.

Q: How does the court acquire jurisdiction EXAMPLE: Suppose the crime is
over the person of the accused? homicide. The penalty imposed is
A: It is conferred upon the court either by the reclusion temporal 20 years or less
voluntary appearance or surrender of the definitely sa Court of Appeals yan.
accused, or by his arrest to answer for the crime However, if the issue on appeal is purely
charged. (Choc vs. Vera, 64 Phil. 1066) legal question lang - 100% legal, no
factual issue SC yan. The mode of
JURISDICTION OF PHILIPPINE COURTS appeal is Rule 45 Appeal by Cetiorari.

Let us now go over the jurisdiction of the COURT OF APPEALS (CA)

different courts in the Philippines. We will start
with the Supreme Court, and then down. Lets go to the CA. Simple: If a case does not
Remember that there are two (2) special courts fall within the jurisdiction of the SC, then
also authorized to try criminal cases: (1) the necessarily it falls within the CAs jurisdiction.
Family Courts acting through RTCs, and (2) the That is, the penalty imposed is less than perpetua
Sandiganbayan. and the appeal is not purely a question of law; the
appeal either involves question of fact or mixed
SUPREME COURT (SC) question of law and fact.

Q: What criminal cases are within the REGIONAL TRIAL COURT (RTC)
jurisdiction of the SC? Well, one of them are
cases affecting ambassadors, public ministers Sec. 20. Jurisdiction in criminal
and consuls. It is very rare. But let us concentrate cases. - Regional Trial Courts
on the exclusive appellate jurisdiction of the SC in shall exercise exclusive original
criminal cases. jurisdiction in all criminal cases
A: The following: not within the exclusive
jurisdiction of any court,
1. All criminal cases involving offenses for tribunal or body, except those
which the penalty imposed by the trial now falling under the exclusive
court is death, reclusion perpetua or life and concurrent jurisdiction of
imprisonment; the Sandiganbayan which shall
Iigo Notes in Criminal Procedure |4

hereafter be exclusively taken property through criminal

cognizance of by the latter. (BP negligence, they shall have
129) exclusive original jurisdiction
thereof. (as amended by R.A.
The jurisdiction of the RTC in criminal cases is 7691)
provided for in Section 20, BP 129 which is very
broad in general provided it does not belong to There are only two (2) things to remember:
the Sandiganbayan or the Municipal Trial Court
(MTC). So what does not belong to the 1. all violations of city or municipal
Sandiganbayan or the MTC belongs to the RTC. ordinances committed within their
Therefore, the best guide is determine the respective territorial jurisdiction
jurisdiction of the MTC. Let us forget the
Sandiganbayan for the meanwhile. If it does not 2. all offenses punishable with imprisonment
belong to the MTC, it should be to the RTC. of not exceeding six (6) years irrespective
of the amount of fine

MUNICIPAL TRIAL COURT (MTC) When the prescribed penalty is below six (6)
years or kung prision correctional and down, puro
Q: What law governing the jurisdiction of the MTC lahat yan. Everything above six (6) years,
MTC? RTC ang jurisdiction.
A: Section 32, BP 129, as amended by RA
7691. RA 7691 is the law expanding the Q: Suppose if the penalty prescribed is
jurisdiction of the MTC which took effect last April imprisonment, fine or both?
05, 1994. A: Never mind the fine and the both. Just look
at the imprisonment. That is the innovation by the
Sec. 32. Jurisdiction of new rules. The fine is never considered in
Metropolitan Trial Courts, determining the jurisdiction. All you have to do is
Municipal Trial Courts and look at the imprisonment, i.e. above six (6) years
Municipal Circuit Trial courts in RTC; six (6) years and below MTC.
criminal cases. - Except in cases
falling within the exclusive RTC JURISDICTION: Above six (6) years,
original jurisdiction of Regional regardless fine
Trial Courts and of the MTC JURISDICTION: Six (6) years and
Sandiganbayan, the below, regardless of fine
Metropolitan Trial Courts,
Municipal Trial Courts, and Q: Suppose the penalty prescribed by law is
Municipal Circuit Trial Courts 100% fine? There are crimes na walang
shall exercise: imprisonment eh where the prescribed penalty is
1. Exclusive original only fine. What will happen?
jurisdiction over all violations of A: Under the SC Circular 04-94, if the penalty
city or municipal ordinances is imprisonment and fine, or imprisonment or
committed within their fine, never mind the fine and concentrate on the
respective territorial imprisonment. But if the penalty prescribed is
jurisdiction; and purely fine, apply the old law before RA 7691: it
2. Exclusive original depends on the amount prescribed by law. Under
jurisdiction over all offenses the old law, if the maximum fine is P4,000 or less
punishable with imprisonment MTC yan. If the penalty prescribed by law is
of not exceeding six (6) years purely fine and above P4,000 RTC yan.
irrespective of the amount of
fine, and regardless of other Where the prescribed by law is purely fine:
imposable accessory or other
penalties, including the civil MTC P4,000 or less
liability arising from such RTC above P4,000
offenses or predicated thereon,
irrespective of kind, nature, However, the exception to the exception is
value or amount thereof; when the crime is damage to property, like
Provided, however, That in reckless imprudence, because in the crime of
offense involving damage to damage to property through criminal negligence
Iigo Notes in Criminal Procedure |5

the penalty is only fine, wala yang imprisonment judgment for support and the acknowledgment of
under the RPC and the fine is equal to the the child which can only be decreed by the CFI.
damage or not more than three (3) times the So what determines the jurisdiction of the court is
amount of the damage. not the criminal penalty by the civil liability.

EXAMPLE: You bumped a car and you wreck Pero bahaw na yan!! Those pronouncements
it. The car is worth P100,000. Ano ang penalty? are already obsolete. Now, never mind the civil
The minimum fine is P100,000 equal to the liability. So, in simple seduction [below 6 months],
value of the damage and the maximum is the MTC can order for the support and
P300,000 (three times the value of the damage, acknowledgment of the child because that is only
Article 365, RPC). So the fine could range from incidental. What is important is six (6) months
P100,000 to P300,000. lang ang penalty.
Q: Sa RTC na ba yan because it is above
P4,000? CASE: Suppose Sir Jet is convicted of less
A: No! Basta damage to property through serious physical injuries for the 6th time within a
reckless imprudence, automatically it is the MTC period of 10 years only. The penalty for such
regardless of the amount of fine. The P4,000 is crime is only arresto mayor six (6) months
only for crimes other than damage to property maximum. But since Sir Jet is already a habitual
through reckless imprudence. delinquent, may patong na yan where the penalty
can reach as high as 6 months to 14 years and 8
Outline of the jurisdiction of the MTC and RTC months.
over criminal cases: Q: Where are you going to file the case?
A: That is what happened in the case of
RTC: People vs. Custoso where the SC held that the
1. when the prescribed penalty for the case should be file din the RTC because you
offense is imprisonment exceeding six consider the principal plus the additional penalty.
(6) years irrespective of the amount of But this doctrine is already obsolete. Under the
the imposable fine; present law RA 7691, we do not consider the
2. when the prescribed penalty for the additional penalty, only the principal penalty.
offense is fine only and the Since less serious physical injuries is punishable
imposable fine exceeds P4,000. by arresto mayor only, it should be filed in the
1. all violations of city or municipal
ordinances committed within their Take note the opening clause of Section 32:
respective territorial jurisdiction; Except in cases falling within the exclusive
2. all offenses punishable with original jurisdiction of Regional Trial Courts and of
imprisonment of not exceeding six (6) the Sandiganbayan. In other words, if the crime
years irrespective of the amount of the has a penalty of six (6) years or lower, dapat
imposable fine; talaga MTC. It cannot be tried by the MTC if the
3. when the prescribed penalty is fine law says it is falling within the exclusive original
only and the imposable amount does jurisdiction of the RTC or the Sandiganbayan [if
not exceed P4,000; the law itself ba!].
4. when the offense involves damage to
property through criminal negligence If the law says this case shall be tried with the
irrespective of the amount of the RTC, sundin mo yan and never mind the penalty
imposable fine. because the law specifically provides in what
court you should file it. Even if the penalty is one
Take note, jurisdiction is determined by the (1) month imprisonment, pag-sinabi ng law
principal penalty not by the civil liability, additional RTC, you follow it.
penalty or the subsidiary penalty, which changed
the previous rules under the old jurisprudence. Q: Give instances of this exception. In what
Under the old jurisprudence in the old case of cases will the RTC will try the case even if the
U.S. vs. Bernardo, the SC ruled that the penalty penalty is only six (6) years or less?
for simple seduction is only arresto mayor [not A: There are four (4) instances as laid down
more than 6 months]. It cannot be tried by the old by the SC in cases of MORALES VS. CA, 283
MTC. It should only be tried by the CFI (now, SCRA 211 (1997) and COMELEC vs. NHOYNAY
RTC) because under Article 345 of the RPC, in , 292 SCRA 254 (1998):
the event that the accused is convicted there be a
Iigo Notes in Criminal Procedure |6

1. Libel Klaro sa Article 360, RPC na RTC, SANDIGANBAYAN

pero if you look at the penalty for libel,
hindi man makaabot ng six (6) years ba! The most confusing is the jurisdiction of the
Article 360 prevails. Sandiganbayan. Everyone is always confused
with this Sandiganbayan. It is the most
2. The Decree on Intellectual Property. controversial.
Criminal cases for the violation of the
Decree on Intellectual Property mga How do you know that the case is to be tried
trademarks yan. by the Sandiganbayan or by the regular courts? It
does not mean naman that all crimes committed
3. The Dangerous Drugs Act. Basta by a public officer must be with the
Dangerous Drugs, automatic RTC yan Sandiganbayan. It could be with the
even if the penalty is prision correcional Sandiganbayan or it could be with the RTC or
lang. MTC. If you know the jurisdiction of the RTC or
MTC, there is no problem. Above six (6) years
4. Violation of the Omnibus Election Code RTC; below six (6) years MTC.
Criminal cases arising from the violations
of the Omnibus Election Code is with the But the problem is whether it is with the
RTC even if the penalty is below six (6) Sandiganbayan or the regular courts, because for
years and one (1) day (Comelec vs. the Sandiganbayan, doon, regardless of the
Nhoynay) penalty na naman. Even if the penalty is above
six (6) years or six (6) years and below, if it is
triable before the Sandiganbayan, you go there.
FAMILY COURTS Forget the penalty. That is where there is some
confusion. Maraming naguguluhan!
Q: What criminal cases are falling within the
original jurisdiction of the Family Courts under RA Q: What is the guideline in determining the
8369 An Act Establishing Family Courts? jurisdiction of the Sandiganbayan?
A: The following under Section 5, RA 8369: A: The latest governing law is RA 8249
approved on February 05, 1997. This is what it
1. Criminal cases where one or more of the requires:
accused is below 18 years of age but not
less than nine (9) years of age, or one or 1. What kind of position in t he
more of the victims is a minor at the time government does he hold or occupy?
of the commission of the offense. 2. What criminal cases was committed by
So for example: 10 years old na
bata, sinuntok mo slight physical WHAT KIND OF POSITION IN THE
injuries sa Family Courts yan. Hindi GOVERNMENT DOES HE HOLD OR OCCUPY?
yan pwede sa MTC because
regardless of the penalty basta below Sino ba itong taong ito? if he is a governor,
18 years old siya, Family Courts yan vice-governor, member of the sanggunian,
whether he is the accused or the provincial treasure, assessor, engineers and
offended party. other provincial department head, city mayor, vice
mayor, members of the sanggunian panglungsod,
2. Criminal cases against minors under the city treasurer, assessor, engineer, other city
Dangerous Drugs Act; and department heads, official of the diplomatic
3. Violations of RA 7610 the famous child service occupying the position of consul and
Abuse Law as amended by RA 7658. higher, Philippine army and air force, colonels
and naval captains and all officers of higher rank,
But since the Family Courts have not yet been officers of the PNP while occupying the position
constituted, the temporary measure is some RTC of provincial directors and those holding the rank
branches were designated as acting as Family of Senior Superintendent or higher, city and
Courts. Here in Davao, the salas of Judge Breva provincial prosecutors and their assistant, and
and Judge Archangel are designated as Family officials and prosecutors of the Office of the
Courts. Temporary set-up lang yan. They are still Ombudsman and special prosecutor, presidents,
RTC but acting as Family Courts. directors or trustees or managers of GOCCs,
state universities or educational institutions or
Iigo Notes in Criminal Procedure |7

foundations; members of Congress; members of ISSUE: Was the crime of murder

the Constitutional Commission without prejudice committed in relation to his office?
to the provisions of the Constitution; [ito ang
pinakamaganda:] all other national and local HELD: Yes. In other words, if they
officials classified as Grade 27 and higher. were not public officers they would not
have succeeded in committing the
Those specified positions or even if you are crime. Although public office is not an
just an ordinary employee but you are Grade 27 element of the crime of murder in
or higher coupled with Anti-Graft crime or crime abstract, as committed by the main
committed in relation to your office respondents herein, according to the
Sandiganbayan yan, forget the penalty. amended information, the offense
therein charged is intimately
If he is below Grade 27 and the crime is anti- connected with their respective offices
graft or a crime committed in relation to his office, and was perpetrated while they were
then it is not Sandiganbayan. It is either RTC or in the performance, though improper
MTC. Tingnan mo lang ang Grade. That is the or irregular, of their official functions.
cue. Madali man lang ba: you just correlate the Indeed, they had no personal motive
nature of the crime and the nature of the position. to commit the crime and they would
not have committed it had they not
held their aforesaid offices. The co-
WHAT CRIMINAL CASE WAS COMMITTED defendants of respondent Leroy S.
BY HIM? Brown, obeyed his instructions
because he was their superior officer,
When it comes to criminal cases, dalawa (2) as Mayor of Basilan City.
lang yan eh: Anti-Graft cases or violation of RA
1379 [Forfeiture of an illegally acquired property].
But more or less Anti-Graft would be a better Of course, normally when you say in relation
example since anyway majority of the cases falls to his office mga falsification or malversaton
there. yan, talagang klaro. That is the normal meaning.
That is why in the 1995 case of CUNANAN VS.
Q: How about those in the RPC? ARCEO, 242 SCRA, the SC held that an offense
A: Find out whether the crime was committed may be considered as committed in relation to the
by the public officer in relation to his office. Yan accused's office if the offense cannot exist without
muna ang babantayan mo. the office such that the office is a constituent
element of the crime. Let us try to compare this in
If it is outside of those two [anti-graft or not the case of
anti-graft but the crime is committed in relation to
his office], wala na, forget the Sandiganbayan. SANCHEZ vs. DEMETRIOU
207 SCRA 627
What do you mean by crime committed in
relation to the office of the person accused? In FACTS: Mayor Sanchez of
the case of Calauan was charged with rape and
homicide for the deaths of Aileen
Sarmenta and Allan Gomez. They
PEOPLE vs. MONTEJO were charged before the RTC.
108 Phil. 652 Sanchez questioned the jurisdiction of
the RTC that since he is an incumbent
FACTS: This is a case for murder mayor at the time of the alleged
filed against the former Mayor Leroy commission of the crime, his case
Brown of Basilan City together with should be tried before the
some Basilan policeman. Brown Sandiganbayan.
ordered his men to arrest the suspect
and he was interrogated. It is in the ISSUE: Whether or not the RTC
course of the investigation or has jurisdiction over the case.
interrogation that they committed the
crime of murder. HELD: Yes. The case should be
tried by the RTC and not
Sandiganbayan. The case of Sanchez
Iigo Notes in Criminal Procedure |8

was not considered in relation to their tried by the Sandiganbayan but by the
office. regular courts.
There is no direct relation While the information states that
between the commission of the crime the above-name principal accused
of rape with homicide and Sanchez committed the crime of murder in
office as municipal mayor because relation to their public office there is,
public office is not an essential however, no specific allegation of facts
element of the crime charged. The that the shooting of the victim by the
offense can stand independently of the said principal accused was intimately
office. Moreover, it is not even alleged related to the discharge of their official
in the information that the commission duties as police officers. Likewise, the
of the crime charged was intimately amended information does not indicate
connected with the performance of that the accused arrested and
Sanchez official functions to make it investigated the innocent victim and
fall under the exception laid down in killed the latter while in their custody.
People vs. Montejo. Dapat: nahulinag-imbestigatapos,
In that case of People vs. pinatay yun, ma-consider pa! Pero
Montejo, a city mayor and several pag-sinabi mo na they killed him in
detectives were charged with murder relation to their office, without further
for the death of a suspect as a result explanation wala! It becomes merely
of a third degree investigation held at a conclusion lang ba.
a police substation. The Supreme The mere allegation in the
Court held that even if their position information that the offense was
was not an essential ingredient of the committed by the accused public
offense, there was nevertheless an officer in relation to his office is not
intimate connection between the office sufficient the phrase is merely a
and the offense, as alleged in the conclusion of law, not a factual
information, that brought it within the averment that would show the close
definition of an offense committed in intimacy between the offense charged
relation to the public office. Indeed, and the discharge of the accuseds
they had no personal motive to commit official duties.
the crime and they would not have In the case of People vs. Montejo,
committed it had they not held their it is noteworthy that the phrase
aforesaid offices. committed in connection to his public
We have read the informations in office does not also appear in the
the case at bar and find no allegation information, which only signifies that
therein that the crime of rape with the said phrase is not what determine
homicide imputed to Sanchez was the jurisdiction of Sandiganbayan.
connected with the discharge of his What is controlling is the specific
functions as municipal mayor or that factual allegations in the information
there is an intimate connection that would indicate the close intimacy
between the offense and his office. It between the discharge of the
follows that the said crime, being an accuseds official duties and the
ordinary offense, is triable by the commission of the offense charged, in
regular courts and not the order to qualify the crime as having
Sandiganbayan. been committed in relation to his
public office.


SECRETARY Q: The offender is a public officer and in
301 SCRA 298 (1999) committing the crime, he took advantage of his
position. Ano yan? Is that a sufficient allegation
HELD: It is not enough to say that that the crime is committed in relation to the
the crime committed is in relation to office?
his office. You must make specific A: NO! It does not carry the same meaning.
allegations to show really the When you say that the public officer took
connection. Otherwise, it will not be advantage of his position, that is only an
allegation of an aggravating circumstance under
Iigo Notes in Criminal Procedure |9

Article 14, RPC. (People vs. Magallanes, 249 which is: crimes under the election
SCRA 212) code. Whereas the provisions of the
Sandiganbayan is broader: crimes
Now, there are instances where there could committed by public officers in relation
also be a conflict between the Sandiganbayan to their duty. That applies to public
jurisdiction and that of the regular courts. This is officers in general. So the specific
were we follow the general rules on statutory provision prevails over the general
construction that special law prevails over a provision.
general law; a specific provision prevails over a
general provision. Another interesting point about the
Sandiganbayan is that the Sandiganbayan law
Such principle is applied in the case of De says that where a private individual commits a
Jesus vs. People (1983), reiterated in the case of crime in conspiracy with a public officer, all of
Corpuz vs. Tanodbayan (1987). These cases them should be tried in the Sandiganbayan. So
were decided under the 1973 Constitution. But yung isa, nasabit no? Nasabit yung private
actually, the doctrine still applies now. individual. He is not even in the government bakit
pati siya i-try sa Sandiganbayan? Because may
CORPUZ vs. TANODBAYAN conspiracy. There should be a joint trial.
April 15, 1987
So you cannot say that the public officer
NOTE: This Corpuz case was should be tried in the Sandiganbayan and the
asked in the Bar, not in remedial law private individual should be tried in the RTC. Di
but in political law because it has pwede yan. You cannot split the jurisdiction.
something to do with the COMELEC.
FACTS: The accused here is a Q: What is the reason why the private
Comelec registrar who allowed the individual should be tried together with the public
registration of voters outside of the officers in the Sandiganbayan?
registration day bawal man yan ba. A: The SC explained in the following manner:
So there was a violation of the Election Private persons may be charged together with
Code. He committed a crime in public officers to avoid repeated and unnecessary
relation to his office. For that, he was presentation of witnesses and exhibits against
charged before the Sandiganbayan conspirators in different venues, especially if the
under the 1973 Constitution. Now, he issues involved are the same. (Balmadrid vs.
challenged the jurisdiction of the Sandiganbayan, March 22, 1991)
Sandiganbayan to try the case and
also the jurisdiction of the former Lets go to some interesting cases on the
Tanodbayan which is now the jurisdiction of the Sandiganbayan over private
Ombudsman. individuals:
Under the Election Code,
violations of election code committed
by public officers in relation to their BONDOC vs. SANDIGANBAYAN
office are supposed to be tried by the November 9, 1990
RTC. It is a direct provision in the code
RTC eh! And the preliminary FACTS: This case involves
investigation should be conducted by quieting(?) operations (manuevers sa
the Comelec under the election code. mga tseke) between Central Bank (a
And of course the prosecution government institution, now Bangko
said: No! Under the law, when the Sentral ng Pilipinas) employees
crime is committed by a public officer allegedly in connivance with Carlito
in relation to his office, it should be the Bondoc, an assistant manager of a
Sandiganbayan, not the regular private bank. Now, two (2) CB
courts. Pero sabi ng accused: Under employees were charged with several
the election code, it should be the counts of estafa through falsification of
RTC! Ngayon, sino ngayon mag- public documents because of their
prevail dyan? manipulations of the checks. I think
what they did maybe something similar
HELD: The election code prevails to what Estrada did no? Of course
because there is a specific provision they were charged with the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 10

Sandiganbayan and the cases were advantage in joint trial? Or when tried alone? Or
assigned in the Second Division of the you are tried together with another person? Does
Sandiganbayan. joint trial make your job easier or harder? Makes
Subsequently after further conviction easier? Wala man bah! Pareho man
investigation, another information was lang yan!
filed against Bondoc as principal by
indispensable cooperation and he was So meaning, you cannot insist on a joint trial if
also in conspiracy, so f-in-ile sa that is no longer feasible. But as far as the law is
Sandiganbayan. His case was raffled concerned, since you committed the crime in
to the Third Division. When the Third conspiracy with these public officers, you remain
Division learned that this is related to in the Sandiganbayan. So in that case (Bondoc),
the case against the two (2) CB mag-isa lang siya and his trial continued in the
employees in the Second Division, Sandiganbayan.
pinasa sa 2nd Division for
consolidation. However, tapos na pala
ang trial dun (2nd Division). So the AZARCON vs. SANDIGANBAYAN
2nd Division returned the case of 268 SCRA 747 (February 26, 1997)
Bondoc to the 3rd Division.
So naiwan na si Bondoc. Now he FACTS: I think this case happened
questions the jurisdiction of the in Bislig. Azarcon here leased a truck
Sandiganbyan: How could the of somebody for logging operations.
Sandiganbayan try me alone when in The owner of the truck was a
fact I should be tried jointly with the 2 delinquent taxpayer pala. So the
CB employees. Eh tapos na sila! So Bureau of Internal Revenue (BIR)
my case should be tried in the RTC. issued this warrant of distraint. The
BIR looked for the truck which is quite
HELD: The law requires that the an item which worthwhile: This truck
private individuals accused before the is hereby considered as under the
Sandiganbayan should be tried possession of the BIR. Now since you
together jointly with the public officer. (Azarcon) are the one leasing, okey
That is really true unless the attendant lang, ituloy mo but you are now the
circumstances have made impossible custodian. You are now holding it in
or impracticable such a joint trial, in behalf of the BIR.
which event the trial of said private After the lease, he returned the
persons may proceed separately from truck to the lessor (taxpayer).
the public officers or employees whose Obviously, nawala nga ang truck. So
own trials have been concluded. hinabol na si Azarcon ng BIR: Bat mo
Besides, there is nothing so sinauli? That is under distraint already
sacred or important about a joint trial and that is malversation! Under the
as to justify a radical deviation from RPC, the crime of malversation may
ordinary, orderly court processes in be committed by a public officer, by a
order to have it, or as to affect the very private individual who is entrusted with
jurisdiction of the Court required to the custody of a property which has
conduct it. The evidence of the State been levied by the government (Article
or of the accused does not become 222, RPC)
weaker or stronger whether presented So, f-in-ile-an sya ng kaso sa
at a joint or separate trial; the rights of Sandiganbayan malversation eh! He
the accused are not enhanced or now questions the jurisdiction of the
diluted by the character of a trial as Sandiganbayan: I am not a public
joint or separate; the procedure officer. If you want to sue me, you sue
prescribed in either situation is me in the regular courts, not here in
essentially the same. the Sandiganbayan!

So joint trial is possible kung pwede pa. Eh ISSUE: Does the Sandiganbayan
kung wala na? Eh di maiwan ka na lang dyan! have the jurisdiction over a private
Now, sabihin mo: No! No! the the law says joint individual who is charged with
trial! I should not be tried alone. The SC in the malversation of public funds or
case of Bondoc said: Teka muna, do you have an property as a principal after the said
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 11

individual has been designated by the We are not persuaded. The

BIR as custodian of a restrained language of the foregoing provision is
property? Did such accused become a clear. A private individual who has in
public officer and therefore subject to his charge any of the public funds or
the Sandiganbayan jurisdiction as a property enumerated therein and
consequence of such designation? commits any of the acts defined in any
of the provisions of Chapter Four, Title
HELD: No. The Sandiganbayan Seven of the RPC, should likewise be
does not have the jurisdiction over penalized with the same penalty
him. The law equivocally specifies: meted to erring public officers.
the only instances when the Nowhere in this provision is it
Sandiganbayan will have jurisdiction expressed or implied that a private
over a private individual, i.e. when the individual falling under said Article 222
complaint charges the private is to be deemed a public officer.
individual either as a co-principal,
accomplice or accessory of a public
officer or employee who has been What it says is, you can be charged for
charged with a crime within its malversation. Thats all. But he is still a private
jurisdiction. individual and therefore he cannot be tried alone
The Information does not charge in the Sandiganbayan.
petitioner Azarcon of being a co-
principal, accomplice or accessory to a Q: Under the present law, anti-graft or crimes
public officer committing an offense committed by public officers below Grade 27,
under the Sandiganbayan's RTC man yan ba! Now, suppose you are
jurisdiction. Thus, unless petitioner be convicted by the RTC, where will you appeal?
proven a public officer, the A: Sandiganbayan. It becomes the appellate
Sandiganbayan will have no court.
jurisdiction over the crime charged.
Granting arguendo that the Q: Eh halimbawa, MTC? The case is tried by
petitioner, in signing the receipt for the the MTC because the penalty is up to 6 years
truck constructively distrained by the only. Convicted ka, where will you appeal?
BIR, commenced to take part in an A: RTC, in accordance with the judiciary law.
activity constituting public functions, he
obviously may not be deemed Q: From the RTC, convicted pa rin! Where will
authorized by popular election. The you appeal?
next logical query is whether A: Petition for Review before the
petitioner's designation by the BIR as Sandiganbayan. Do not go to CA. The
a custodian of distrained property Sandiganbayan takes the place of the CA.
qualifies as appointment by direct
provision of law, or by competent And take note, Sandiganbayan is now given
authority. We answer in the negative. the exclusive original jurisdiction over petition for
However, we find no provision in issuance of writ of mandamus, prohibition,
the NIRC constituting such person a certiorari, habeas corpus, injunction and other
public officer by reason of such auxiliary writs and processes in aid of its
requirement. The BIR's power appellate jurisdiction. Ayan! in aid yan ang
authorizing a private individual to act importante dyan.
as a depositary cannot be stretched to
include the power to appoint him as a
public officer. The prosecution argues
that "Article 222 of the Revised Penal
Code . . . defines the individuals
covered by the term 'officers' under Rule 110
Article 217 . . ." of the same Code.
And accordingly, since Azarcon PROSECUTION OF
became a "depository of the truck
seized by the BIR" he also became a OFFENSES
public officer who can be prosecuted
under Article 217 . . . Q: How are criminal cases or actions
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 12

instituted? new rules, some cases triable by the MTC may

A: Section 1, Rule 110. also require preliminary investigation.

SECTION 1. Institution For example in the RTC, more than 6 years,

of criminal actions. kailangan may preliminary investigation yan.
Criminal actions shall be Under Section 1, from the moment you file a
instituted as follows: complaint with the proper officer for the purpose
(a) For offenses where of conducting a preliminary investigation, it is
a preliminary already institution.
investigation is required
pursuant to section 1 of Q: Who are these officers referred to?
Rule 112, by filing the A: They are mentioned in Section 2, Rule 112:
complaint with the proper
officer for the purpose of SEC. 2. Officers
conducting the requisite authorized to conduct
preliminary investigation. preliminary
(b) For all other investigations.
offenses, by filing the The following may
complaint or information conduct preliminary
directly with the investigations:
Municipal Trial Courts and (a) Provincial or City
Municipal Circuit Trial Prosecutors and their
Courts, or the complaint assistants;
with the office of the (b) Judges of the
prosecutor. In Manila and Municipal Trial Courts and
other chartered cities, Municipal Circuit Trial
the complaints shall be Courts;
filed with the office of (c) National and
the prosecutor unless Regional State
otherwise provided in Prosecutors; and
their charters. (d) Other officers as
The institution of the may be authorized by law.
criminal action shall Their authority to
interrupt the running of conduct preliminary
the period of prescription investigations shall
of the offense charged include all crimes
unless otherwise provided cognizable by the proper
in special laws. (1a) court in their respective
territorial jurisdictions.
The language has been changed no? If you (2a)
try to compare it with the old Rules, merong major
changes, meron man ding pareho. The language Q: How about those other offenses which DO
is now simplier. NOT require preliminary investigation?
A: Under the new rules, yung below 4 years
Q: Is there a difference between and 2 months ang penalty they are triable by
commencement of criminal action and institution the MTC. (If the penalty is 4 years, 2 months
of criminal action? and 1 day, it requires preliminary investigation.)
A: Yes. When you say commencement,
generally it is already in the court once it is filed in Q: How do you institute them? Like slight
court. But institution is earlier. When you file a physical injuries
complaint with the fiscals office, it is already an A: You have two (2) options:
institution. 1. File a complaint with the prosecutors
office in the city or provincial who will
Q: Is preliminary investigation required in all now file the case in court; or
criminal cases? Because there are some criminal 2. Kung gusto mo, direct filing. You can
cases which do not require preliminary file the complaint directly to the MTC.
investigation. Like sa munisipyo, police man ang
A: Generally, all RTC cases require mag-file ba.
preliminary investigation. But right now under the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 13

However in 1983 in the case of Francisco vs.

However in Davao City we do not see that CA, the SC made it total na: the filing of the
because under the rules, in Metro Manila and complaint whether in the MTC or the fiscals office
other chartered cities, the complaint shall always for preliminary investigation is sufficient to
be filed with the office of the prosecutor unless interrupt the running of the prescriptive period.
the charter of the city provides otherwise. However, in 1985 when the rules were revised,
the SC rejected the ruling in the Francisco case:
So again, the complaint can be filed either in the filing of the complaint in the fiscals office
the MTC in the province or office of the fiscal does not interrupt the running of the prescriptive
merely for preliminary investigation. Unlike in period. But in 1988, in-amend na naman ang
chartered cities na puro fiscals lang ang rules: the filing of the complaint in the fiscals
authorized to conduct preliminary investigation. office is sufficient to interrupt the running of the
For example: Murder, the police can file a prescriptive period.
complaint for murder before the MTC of Sta.
Cruz, Davao del Sur. That is not for trial but only And here comes the 1992 case of Zaldivia vs.
for preliminary investigation because the MTC of Reyes Sr. (211 SCRA 277) which was a criminal
Sta. Cruz has no power to try a murder case. case covered by the Summary Rules.

The institution of the ZALDIVIA vs. REYES SR.

criminal action shall 211 SCRA 277
interrupt the running of
the period of prescription FACTS: It was a violation of a
of the offense charged municipal ordinance. Arresto Menor
unless otherwise provided lang yan e. F-in-ile sa fiscals office.
in special laws. (last The fiscal is relaxed because
paragraph, Section 1, Rule according to him: the filing of the case
110) with the fiscals office is sufficient to
interrupt the running of the prescriptive
QUESTION: Does the filing of the complaint period. So, relax siya he took his
with the prosecutors office interrupt the running time.
of the prescriptive period of the crime? F-in-ile niya (fiscal) sa court after 3
months. Pag-file niya, motion to
In the old case of People vs. del Rosario quash: Prescribed! Fiscal: Hindee!
(1964), SC: No. When a complaint is filed in the When the case is filed with the fiscals
municipal court only for the purpose of preliminary office, the running of prescriptive
investigation, it does not interrupt the running of period is interrupted!
the prescriptive period. What interrupts is the
filing of the complaint in court which has HELD: You (fiscal) are wrong. The
jurisdiction to try the case. filing of this case before your office did
not interrupt the running of the
That is reiterated 3 years later in the case of prescriptive period. You should have
People vs. Coquia. The SC modified it in the case filed that on time before the court.
of People vs. Olarte where a complaint for murder REASON: You look at the first
is filed in the MTC for preliminary investigation. paragraph of Section 1 (1988 Rules):
The issue is: Is the running of the prescriptive in cases not covered by the Rules of
period interrupted? SC: Yes, abandoning the Summary Procedure So, that rule
case of Coquia and del Rosario. Why? Because only applies in cases not covered by
the Penal Code says, the filing of the complaint the Summary Rules. But the case at
interrupt the running of the prescriptive period. bar is covered by the Summary Rules
Article 91 of the RPC does not distinguish precisely because it is only arresto
whether the filing is for trial or merely for menor.
preliminary investigation. However the SC said
here, the complaint is filed in court for preliminary Therefore, when the case is covered by the
investigation. If it is filed in the fiscals office also Rules of Summary Procedure, the filing of the
for preliminary investigation, Hindi [does not case with the fiscals office does not interrupt the
interrupt]!! Court not Fiscal. That is the original running of the prescriptive period (Zaldivia vs.
ruling. Reyes, Jr, 211 SCRA 277). It should be the filing
of the case before the court which will interrupt.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 14

So, klaro yan until the 1998 case of making power, is not allowed to diminish,
increase or modify substantive rights. Hence, in
case of conflict between the Rule on Summary
REODICA vs. COURT OF APPEALS Procedure promulgated by this Court and the
292 SCRA 87, Davide, Jr. J. Revised Penal Code, the latter prevails.
(choy!) (Reodica vs. CA, supra)

FACTS: The charge here was Yan! When I was reading this case, I said,
slight physical injuries through what happened to Zaldivia case? Was it
reckless imprudence which is actually reversed? SC: No! No! We never reversed
punishable by arresto menor. It was Zaldivia. Neither does Zaldivia control in this
filed with the fiscals office within 2 instance. It must be recalled that what was
months but it was filed in the court involved therein was a violation of a municipal
beyond 2 months. And definitely, it is ordinance; thus, the applicable law was not Article
covered by the Summary Procedure. 91 of the Revised Penal Code, but Act. No. 3326,
In Zaldivia case, the filing in the fiscals x x x x x Under, Section 2 thereof, the period of
office interrupts the running of the prescription is suspended only when judicial
prescriptive period. proceedings are instituted against the guilty party.
Accordingly, this Court held that the prescriptive
NOTE: Remember, the case of period was not interrupted by the filing of the
Zaldivia involved a violation of an complaint with the Office of the Provincial
ordinance. Prosecutor, as such did not constitute a judicial
proceeding; what could have tolled the
HELD: But in the case at bar, this prescriptive period there was only the filing of the
is a felony under the Penal Code. information in the proper court. In the instant
[Dean I: Ginawan pa ng distinction!] If case, as the offenses involved are covered by the
it is a felony, the filing with the fiscals Revised Penal Code, Article 91 thereof and the
office is sufficient to interrupt the rulings in Francisco and Cuaresma apply. Thus,
running of the prescriptive period even the prescriptive period for the quasi offenses in
if it is covered by the Summary Rules. question was interrupted by the filing of the
But, if it is a light offense punished by complaint with the fiscal's office three days after
a special law like an ordinance and the vehicular mishap and remained tolled pending
therefore covered by the Summary the termination of this case. We cannot, therefore,
Rules, then the filing in the fiscals uphold petitioner's defense of prescription of the
office does not interrupt the running of offenses charged in the information in this case
the prescriptive period. (Reodica vs. CA, supra).

So I start to wonder: Saan ba nanggaling Yan! And I think the Reodica case is now
yung distinction na yun? The SC cited Act 3326 incorporated in the new rules. You read the last
which is the law governing prescription of crimes paragraph of Section 5, Rule 110:
punished by special laws. Whereas, Article 90 of
the RPC refers to prescription of felonies under The prosecution for
the Penal Code. And under Act 3326, it is very violation of special laws
clear that the prescription period for the crime shall be governed by the
(punished by a special law) is interrupted only provision thereof. (n)
upon judicial proceeding filing in the court.
It is an entirely new sentence. Tama man yan
Ayun pala! Akala ko the Zaldivia case settled ba: The prosecution for violation of special laws
the rule after all. Meron pa palang Reodica. shall be governed by the provision thereof. I think
thats the Reodica case: when it comes to
The SC said: The revised rules of Summary prosecution for violations of special law, you
Procedure cannot be taken to mean that the follow the special law.
prescriptive period is interrupted only by the filing
of a complaint or information directly with said
courts. It must be stressed that prescription in SEC. 2. The complaint
criminal cases is a matter of substantive law. or information The
Pursuant to Section 5(5), Article VIII of the complaint or information
Constitution, this Court, in the exercise of its rule- shall be in writing, in
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 15

the name of the People of writing charging a person

the Philippines and with an offense,
against all persons who subscribed by the
appear to be responsible prosecutor and filed with
for the offense involved the court. (4a)
Q: Who are the people authorized to institute
Q: How do you file a complaint? or commence criminal cases?
A: The complaint shall be in writing in the A: The following:
name of the People of the Philippines and against 1. Offended party;
all persons who appear to be responsible for the 2. Peace officer;
offense involved. 3. Prosecutor; and
4. Public officer charged with the
Q: What happens if the criminal complaint or enforcement of the law.
information is filed in the name of the private
complainant? Q: How do you distinguish a complaint from
A: According to the SC, the complaint is information?
defective. It can be quashed but it is only a formal A: The following are the distinctions:
defect. In case it proceeds to trial, it should be
corrected but it is not really a fatal mistake. It can 1. As to who files the complaint or
be cured at any stage of the action by amending information
the information or even if it is not cured, there is a A COMPLAINT is filed by the (a)
valid judgment, you are found guilty, it shall no be offended party; (b) any peace officer;
voided merely because the title is defective. It will (c) prosecutor; (d) or any public officer
not invalidate the proceedings. charged with the enforcement of the
Now the law says, against all who appear to On the other hand, an
be responsible. Meaning, it is the sworn duty of a INFORMATION is prepared and
policeman or fiscal to file a case against all who signed by the prosecutor.
appear to be responsible. It does not say who are
guilty. 2. As to purpose
A COMPLAINT filed in court is
Q: How do you define complaint? either for preliminary investigation or
A: Section 3, Rule 110: for trial, but an INFORMATION filed in
court is only for trial.
SEC. 3. Complaint
defined. A complaint is 3. As to where to file
a sworn written statement A Complaint may be filed in court
charging a person with an or in the office of the prosecutor, but
offense, subscribed by the an INFORMATION is always filed in
offended party, any peace court.
officer, or other public
officer charged with the 4. A COMPLAINT can be filed in court,
enforcement of the law for trial or for mere preliminary
violated. (3) investigation, or it can even be filed
not in court but in the prosecutors
Q: Supposes a complaint is filed but it was not office for preliminary investigation. But
sworn to or signed, is it valid? where an INFORMATION is filed, it is
A: The SC said, it is a formal defect. It can be always filed in court and always for
cured. Generally, the signature is not needed. trial.

The complaint contemplated in Section 2

Q: How do you define information? could be filed in the MTC for trial (e.g. physical
A: Section 4, Rule 110: injuries), or it could be a complaint for murder in
the MTC, not for trial but for preliminary
SEC. 4. Information investigation.
defined. An information
is an accusation in The complaint filed in the fiscals office, city or
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 16

province, is known in Spanish as DENUNCIA offended party cannot

which is filed for preliminary investigation as institute criminal
distinguished from the real complaint mentioned prosecution without
in Section 3. In Section 3, it is always filed by the including the guilty
offended party. Although in some cases like when parties, if both are
the offended party died, it is the police who files alive, nor, in any case,
the affidavit complaint before the prosecutors if the offended party has
office for preliminary investigation. consented to the offense
or pardoned the offenders.
EXAMPLE: Pedro was a victim of robbery. The offenses of
Can he file a complaint for robbery? YES. What if seduction, abduction and
he died before he could file? acts of lasciviousness
shall not be prosecuted
Q: Can the family of Pedro file a complaint upon a complaint filed by
under Section 3? the offended party of her
A: No, because they are not the offended parents, grandparents or
party. They should file a complaint in the fiscal. If guardian, nor, in any
you are talking of a complaint filed under Section case, if the offender has
3, you must be the offended party. But a been expressly pardoned by
complaint filed with the fiscal, need not be by the any of them. If the
offended party. (Evarle vs. Sucaldito, 156 SCRA offended party dies or
808) becomes incapacitated
before she can file the
complaint, and she has no
That is the distinction, and the fiscal has the
known parents,
authority to investigate any crime whether the one
grandparents or guardian,
complaining is the victim or not because the
the State shall initiate
offended party is the People of the Philippines.
the criminal action in her
SEC. 5. Who must The offended party,
even if a minor, has the
prosecute criminal
actions. All criminal right to initiate the
prosecution of the
actions commenced by a
complaint or information offenses of seduction,
shall be prosecuted under abduction and acts of
the direction and control lasciviousness
of the prosecutor. independently of her
However, in Municipal parents, grandparents, or
Trial Courts or Municipal guardian, unless she is
incompetent or incapable
Circuit Trial Courts when
the prosecutor assigned of doing so. Where the
thereto or to the case is offended party, who is a
not available, the minor, fails to file the
offended party, any peace complaint, her parents,
officer, or public officer grandparents, or guardian
charged with the may file the same. The
enforcement of the law right to file the action
violated may prosecute the granted to parents,
case. This authority shall grandparents, or guardian
cease upon actual shall be exclusive of all
intervention of the other persons and shall be
prosecutor or upon exercised successively in
elevation of the case to the order herein provided,
the Regional Trial Court. except as stated in the
The crimes of adultery preceding paragraph.
and concubinage shall not No criminal action for
be prosecuted except upon defamation which consists
a complaint filed by the in the imputation of any
offended spouse. The of the offenses mentioned
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 17

above shall be brought PEOPLE vs. RAMOS

except at the instance of
and upon complaint filed 207 SCRA 144
by the offended party.
(5a) FACTS: The case is triable by the
The prosecution for MTC of Ilocos Norte. The offended
violation of special laws party went to the fiscal and filed the
shall be governed by the information. During the trial, the judge
provision thereof. (n) declared the fiscal in contempt of court
as when the case was called for trial,
However once the case is in court, the the fiscal was not around. The fiscal
complaint or information filed shall be prosecuted answered in writing. When asked to
under the direction and control of the public explain why he refused to come to
prosecutor. This shows the control of the court despite the previous order, he
government. This is one feature of the said his office is undermanned or
Inquisitorial System of criminal procedure. The understaffed. Thus he could not
fiscal has the absolute control. personally appear and prosecute. At
any rate, the fiscal pointed out in his
Q: Can the offended party hire his own lawyer explanation that the prosecution of the
to prosecute? case can be handled by the offended
A: YES, the offended party can hire his own party or any peace officer.
lawyer who is known as the private prosecutor.
The personality of the private prosecutor is based ISSUE: Who should prosecute the
on the provision in the RPC that every person case? The public prosecutor or any of
criminally liable is also civilly liable. It is because the persons mentioned in Section 5,
of this civil liability that the offended party has an Rule 110?
interest in the criminal case.
HELD: It is the public prosecutor
Even if the public prosecutor may turn over who should prosecute the case
the active conduct of the trial to the private because he already knew about the
prosecutor, he must be present during the case. He was the one who
proceedings because he is, by law, duty-bound to investigated the case. Therefore, he
take charge of the prosecution of the case until its should continue in the prosecution of
termination. the case in court. While it is true that
the law allow the offended party, any
If the public prosecutor or fiscal and the peace officer, or other public officer to
private prosecutor do not agree on how to prosecute a criminal case in places
prosecute, the fiscal will prevail because the where there are no fiscals available,
private prosecutor is under the direct control of that is only the EXCEPTION.
the fiscal. The GENERAL RULE is that the
fiscal himself should handle the
Q: What happens if there are no fiscal in a prosecution of the criminal case. It is
municipality? his duty and moral obligation to
A: According to Section 5, Rule 110: prosecute the case after having
However, in Municipal Trial Courts or Municipal conducted the investigation and,
Circuit Trial Courts when the prosecutor assigned believing that there is a case, filed an
thereto or to the case is not available, the information in court.
offended party, any peace officer, or public officer The Court feels that in those
charged with the enforcement of the law violated cases where the prosecutors
may prosecute the case. themselves have filed the criminal
charges, there is all the more reason
This provision that if there is no prosecutor, for them to actively intervene in their
puwede sila, is taken from the ruling of the SC in prosecution. Having presumably made
the case of People vs. Beriales, 17 SCRA 24. the necessary investigation of these
Usually, in the absence of the fiscal, it is the cases before filing the corresponding
police authorities who act as prosecutors. informations, they are the best position
However, according to the SC in the 1992 case of to handle their prosecution on the
basis of their initial findings. If the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 18

prosecutor had not determined the The offenses of

prima facie guilt of the accused, he seduction, abduction and
should not have filed the information in acts of lasciviousness
the first place. At any rate, there is shall not be prosecuted
something not quite correct in the upon a complaint filed by
prosecutor filing the information the offended party of her
himself and then leaving the offended parents, grandparents or
party in the lurch, as it were, by asking guardian, nor, in any
him to fend for himself in prosecuting case, if the offender has
the case. been expressly pardoned by
The exception provided in Section any of them. If the
5 must be strictly applied as the offended party dies or
prosecution of crime is the becomes incapacitated
responsibility of officers appointed and before she can file the
trained for that purpose. The violation complaint, and she has no
of the criminal laws is an affront to the known parents,
People of the Philippines as a whole grandparents or guardian,
and not merely the person directly the State shall initiate
prejudiced, who is that the prosecution the criminal action in her
be handled by persons skilled in this behalf.
function instead of being entrusted to
private persons or public officers with Take note that in the third paragraph, RAPE is
little or no preparation for this already deleted. It is not a private crime anymore.
responsibility. The exception should be It is already a crime against person because of
allowed only when the conditions the new law RA 8353, Anti-Rape Law of 1997
therefor as set forth in Section 5, Rule amending the RPC. Now, it can be prosecuted
110 of the Rules on Criminal without the private complainant.
Procedure have been clearly
established. Q: The SC said in one case that there is no
such animal as Private Crimes because every
crime is against the State. But why do we call
According to Section 5, the criminal action these private crimes - adultery, concubinage,
shall be under the control and supervision of the seduction, abduction, and acts of lasciviousness?
prosecutor. That is only applicable if you are A: It is because of all these requirements: the
talking of the trial court. But if the criminal case is complaint is duly prepared, signed and sworn to
lifted in the CA or SC on appeal, wala ka nang by the offended party. Actually, the correct name
pakialam. It should be the Solicitor General who of these crimes is CRIMES WHICH CANNOT BE
must represent the People of the Philippines. PROSECUTED DE OFFICIO.

The next paragraphs of Section 5 are Q: What is the reason for the requirement that
somehow reiterated in Article 144, RPC, which is they shall be prosecuted upon complaint of the
popularly known as PRIVATE CRIMES: offended party?
A: This requirement was imposed out of
The crimes of adultery consideration for the offended party or her
and concubinage shall not relatives who might prefer to suffer the outrage in
be prosecuted except upon silence rather than go through with the scandal of
a complaint filed by the a public trial. (Sumilin vs. CFI, 57 Phil. 298;
offended spouse. The People vs. Santos, 101 Phil. 798)
offended party cannot
institute criminal In ADULTERY or CONCUBINAGE, the
prosecution without offended party is only the husband or the wife.
including the guilty The parents have nothing to do with the adultery
parties, if both are or concubinage. In adultery, it is not allowed that
alive, nor, in any case, the husband files a complaint against his wife
if the offended party has without including her paramour. Nor is it allowed
consented to the offense that the husband files a case for adultery against
or pardoned the offenders. his wifes lover without including his wife. The law
provides, xxx the offended party cannot initiate
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 19

criminal prosecution without including the guilty

parties, if both are alive, xxx. The same rule PROBLEM: Suppose a victim of a private
applies in concubinage. crime in a municipality prepared a complaint,
swore to it, and FILED IT IN THE MTC FOR
In either case, consent or pardon by the PRELIMINARY INVESTIGATION. [Remember
offended party is a bar to criminal prosecution. that in provinces, there are two (2) possibilities if
Consent indicates allowance. you want to file a case in the RTC: (1) file a
complaint in the MTC for preliminary
SEDUCTION, ABDUCTION, ACTS OF investigation, or (2) file a complaint with the
LASCIVIOUSNESS. If the victim is already of provincial fiscals office also for preliminary
AGE, the decision of filing or not filing the case investigation. Unlike in the cities we only file with
belongs to her. the fiscal because only one is allowed to conduct
preliminary investigation in chartered cities.] After
Q: What happens if the offended party is a the preliminary investigation, the judge said there
MINOR and does not want to file? is a probable cause and therefore, forwarded the
A: The parents, grandparents, or guardian case to the provincial fiscal. The fiscal filed the
may file the complaint. information in the RTC.

Q: Suppose the minor is incompetent as in the Q: Can the RTC try the case when there is no
case of insanity, who will file the complaint? complaint by the offended party in the RTC?
A: Her parents, grandparents or guardian my A: The SC said YES. The complaint filed in
institute the case. the MTC for preliminary investigation will already
serve the purpose. There is no need for another
Q: Suppose the minor has no known parents, complaint to be prepared and signed by the victim
grandparents, or guardian? to be filed with the RTC.
A: The State shall initiate the criminal action in
her behalf under the principle of Parens Patriae. PROBLEM: Suppose the offended party of a
private crime in a municipality, instead of filing the
Q: What happens when an information for complaint in the MTC, she filed it in the office of
adultery or concubinage is filed without a the provincial fiscal or prosecutor.
complaint? Is it a jurisdictional effect?
A: According to some rulings, it is a Q: Will the case prosper?
jurisdictional defect. The SC held that compliance A: The SC said NO. The case must be
in Article 344 and counterpart (as well as other dismissed because the complaint contemplated
crimes against chastity) is jurisdictional, and not by the law, signed and sworn to by the victim, is a
merely a formal, requirement. While in point of complaint FILED IN COURT, not a complaint filed
strict law the jurisdiction of the court over the in the fiscals office.
offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just Q: What should be the correct procedure?
as jurisdictional mandate since it is that complaint A: After preliminary investigation, the fiscal
which starts the prosecutory proceeding and should prepare a complaint and should prepare
without which the court cannot exercise its an information signed by him and the victim.
jurisdiction to try the case. (People vs. Mandea, Unlike where the complaint filed in the MTC for
60 Phil. 372; People vs. Surbano, 37 SCRA 565; preliminary investigation, there is no need for
People vs. Babasa, 97 SCRA 672; Pilapil vs. another complaint to be filed in the RTC. But if the
Ibay-Somera, 174 SCRA 653) complaint (denuncia) is filed in the fiscals office,
the rule is: it will not serve as the basis for a
But there is a SECOND VIEW: You can criminal prosecution. In connection with this
question the filing but it is not jurisdictional. It is a principle is the leading case of
condition precedent but not jurisdictional because
if you say jurisdiction, they are vested by the
judiciary law. There is nothing in the judiciary law PEOPLE vs. ILARDE
which can speak about complaint filed in court by
the offended party. (People vs. Estrebella (1986); 125 SCRA 11
People vs. Saniaga (1988); People vs. Bugtong
(1989); People vs. Tarul (1989); People vs. FACTS: This is a case for adultery
Cabodac (1992); People vs. Leoparde (1992); originated in the City of Iloilo. A man
People vs. Hilario (1993) caught his wife in an act of adultery.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 20

The next thing he did was to execute Thus, the law leaves it to the option of
an affidavit-complaint, which he filed in the aggrieved spouse to seek judicial
the office of the City Prosecutor of redress for the affront committed by
Iloilo City. In his affidavit he said, Im the erring spouse. And this, to Our
formally charging my wife and X and mind, should be the overriding
would request this affidavit be consideration in determining the issue
considered as a formal complaint of whether or not the condition
against them. While the case was precedent prescribed by said Article
pending before the fiscal for 344 has been complied with. For
investigation, he died. So the Fiscal needless to state, this Court should be
asked how he can file an information guided by the spirit, rather than the
in court when there is no complaint letter, of the law.
because the rule is, the complaint filed In the case at bar, the desire of
with the fiscals office is not the the offended party to bring his wife and
complaint contemplated by law; there her alleged paramour to justice is only
must be a complaint filed signed by too evident. Such determination of
the offended party. But in this case, purpose on his part is amply
the complainant was already dead. demonstrated in the dispatch [speed]
Although there was an affidavit- by which he filed his complaint with the
complaint. fiscals office [because he filed the
The fiscal knew that and so he complaint the day after the crime
prepared an information for adultery happened]. The strong and equivocal
charging the wife and her paramour. In statement contained in the affidavit
the information he stated: The filed with the Fiscal's Office that I am
undersigned City Fiscal upon sworn formally charging my wife of the crime
statement originally filed by the of adultery and would request that this
offended party, xerox copies of which affidavit be considered as a formal
are hereto attached as annexes A and complaint against them is a clear
B xxx So what he did was to show of such intent.
incorporate the affidavit of the The ruling in People vs. Santos is
deceased offended husband in the not applicable to the case at bar. In
information. that case, the sworn statement was
Now, the wife and the paramour not considered the complaint
moved to quash the information contemplated by Article 344 of the
alleging lack of jurisdiction upon the Revised Penal Code because it was a
offense charged because under Article mere narration of how the crime was
344 of the RPC, the requirement for committed. Whereas, in the case at
the complaint of adultery was not bar, in the affidavit-complaint
complied with citing the case of People submitted by the offended husband,
vs. Santos, 101 Phil. 798, where it was he not only narrated the facts and
held that the complaint filed in the circumstances constituting the crime of
fiscals office for a private crime is not adultery, but he also explicitly and
the complaint contemplated by law. On categorically charged private
that basis, RTC Judge Ilarde respondents with the said offense
dismissed the case. Im charging my wife and her
The prosecution went to the SC on paramour with adultery.
certiorari. Moreover, in Santos, the SC
noted that the information filed by the
HELD: The respondent trial court fiscal commenced with the statement
is wrong. The order of dismissal is the undersigned fiscal accuses so and
hereby set aside and is directed to so, the offended party not having
proceed with the trial of the case. It been mentioned at all as one of the
must be borne in mind, however, that accusers. But in the present case, it is
this legal requirement was imposed as if the husband filed the case.
out of consideration for the aggrieved The affidavit of the husband here
party who might prefer to suffer the contains all the elements of a valid
outrage in silence rather than go complaint under Section 5, Rule I10 of
through the scandal of a public trial. the Rules of Court. What is more, said
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 21

complaint-affidavit was attached to the Q: Is the accusation mang-aagaw ng asawa

information as an integral part thereof, ng may asawa! an imputation of adultery?
and duly filed with the court. A: No. It is a mere implication of a vice or
Therefore, the affidavit complaint defect, not an imputation of adultery. The phrase
became the basis of the complaint was translated as seducer of the husbands of
required by Section 5. other woman. It implies that the person to whom
it is addressed is a FLIRT, a TEMPTRESS, or
one who indulges in inciting anothers husband.
So it became sort of an exception to the (Gonzales vs. Arcilla, November 18, 1991)
general rule that the affidavit-complaint in the
fiscals office is not the one contemplated by law. The last paragraph states that The
While I was reading this case, I noticed that the prosecution for violation of special laws shall be
fiscal was very imaginative on what he is going to governed by the provision thereof. The best
do, kasi alam niya ang rules eh. That fiscal is now example is the case of Reodica vs. CA, which we
Solicitor General Galvez. And I was surprised already discussed, that prescription for violation
why the husband drafted the affidavit that way. of a special law is not governed by the RPC but
Maybe he knew he was dying. Later, they found by special law. The ruling was emphasized in the
out that the husband was a lawyer. And do not be 1996 case of
shocked, the paramour was also a lawyer! So that
was a very interesting case. The ruling was
reiterated in the 1991 case of PEOPLE vs. LLENES vs. DICDICAN
JAROL (June 19, 1991).
July 31, 1996

Last paragraph, Section HELD: The institution of the

5, Rule 110: No criminal complaint in the prosecutors office
action for defamation shall interrupt the period of
which consists in the prescription of the offense charged
imputation of any of the under Section 1, Rule 110. The rule,
offenses mentioned above however, is entirely different under Act
shall be brought except at No. 3326, as amended, whose Section
the instance of and upon 2 explicitly provides that the period of
complaint filed by the prescription shall be interrupted by the
offended party. institution of judicial proceedings, i.e.,
the filing of the complaint or
The fifth paragraph of Section 5 is taken from information with the court. Therefore,
Article 360 of the RPC. Article 360 refers to the the filing of the complaint in the fiscals
crime of libel or slander. office does not interrupt the running of
the prescriptive period. That is only
Q: Is the crime of defamation [slander is when true in felonies under the RPC. But
you defame somebody orally; libel is when the when in comes to special laws, we
defamation is in writing] a private crime? follow the special law.
A: NO.

Q: Can a case of slander be filed in court Q: When is a complaint or information

without a complaint signed and sworn to by the sufficient?
offended party? A: Read Section 6, Rule 110
when the defamation imputes to the offended SEC. 6. Sufficiency of
party the commission of any of the crimes complaint or information.
mentioned above. Meaning, it imputes to the A complaint or
offended party the commission of a private information is sufficient
offense like adultery, concubinage, abduction, if it states the name of
seduction, acts of lasciviousness (ACASA). In this the accused; the
case, the criminal action shall be brought at the designation of the offense
instance of and upon a complaint filed by the given by the statute; the
offended party. acts or omissions
complained of as
constituting the offense;
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the name of the offended produce any adverse effect because what is
party; the approximate important is the identity of the person of the
date of the commission of accused, not his name . (People vs. Ramos, 85
the offense; and the place Phil. 683) Kung nagkamali, eh di palitan!
where the offense was [problema ba yun? Ha!] This reminds me of the
committed. Fortun brothers the Delia Rajas incident during
When an offense is the impeachment trial.
committed by more than one
person, all of them shall
be included in the SEC. 8. Designation of
complaint or information. the offense. The
(6a) complaint or information
shall state the
Q: Suppose the information is defective, designation of the offense
kulang-kulang ba, there are some essential facts given by the statute, aver
required by law which are not stated. Can it be the acts or omissions
cured during the trial? constituting the offense,
A: YES. Any defect in the complaint or and specify its qualifying
information may be cured by evidence introduced and aggravating
by the prosecution, EXCEPT: circumstances. If there is
no designation of the
1. when the defect is jurisdictional offense, reference shall
(People vs. Abad Santos, 76 Phil. be made to the section or
744); or subsection of the statute
2. when the complaint or information punishing it. (8a)
does not charge any offense. (People
vs. Austria, 94 Phil. 897) SEC. 9. Cause of the
accusation The acts or
SEC. 7. Name of the omissions complained of as
accused. The complaint constituting the offense
or information must state and the qualifying and
the name and surname of aggravating circumstances
the accused or any must be stated in ordinary
appellation or nickname by and concise language and
which he has been or is not necessarily in the
known. If his name cannot language used in the
be ascertained, he must be statute but in terms
described under a sufficient to enable a
fictitious name with a person of common
statement that his true understanding to know what
name is unknown. offense is being charged
If the true name of the as well as its qualifying
accused is thereafter and aggravating
disclosed by him or circumstance and for the
appears in some other court to pronounce
manner to the court, such judgment. (9a)
true name shall be
inserted in the complaint There is one major change here. The law now
or information and record. specifically emphasizes under Section 8 and
(7a) Section 9 that you do not only mention the crime.
You must also specify the aggravating and the
qualifying circumstance. What is new here is the
Q: One of the requirements under Section 7 is aggravating.
that the name of the accused must be stated in
the information. Eh kung nagkamali ka? Is that The old rule is, there is no need of specifying
fatal? What is the effect of an erroneous name the aggravating circumstances because anyway,
given to the accused in the complaint or they are not elements of the crime. They are only
information? circumstances that affect the criminal liability and
A: The defect is not fatal. The error will not if the aggravating circumstances are proven, they
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 23

can still be applied against the accused. The new FACTS: A complaint was filed by
law now says you do not only specify the the woman stating that while the
qualifying, you also mention the aggravating. offended party was inside her house at
Now, how does it affect the old jurisprudence? night and all the doors were locked
and all the windows were closed, the
Q: My question is this, based on my own accused surreptitiously entered the
interpretation of Sections 8 and 9, Problem: the house and approached the offended
information does not allege the aggravating party who was asleep, raised her skirt
circumstances. In the course of the trial, the and at that very moment the woman
prosecution starts proving. Under the new rule, woke up and resisted. [This can be an
the defense can object to any evidence to prove attempted rape but the element of the
the aggravating circumstance because the same crime was not fully accomplished
is not mentioned in the information. But I will go because of an act or accident other
further: an aggravating circumstance is not than her own resistance.] But sabi ng
alleged in the information and the prosecution caption, for trespass to dwelling
starts proving and there was no objection on the pwede man din.
part of the defense. Now, can the court in
imposing the penalty, consider the aggravating HELD: Sabi mo, trespass. OK,
circumstance? eh di trespass! So the caption prevails.
A: My personal view is YES because of the When the facts appearing in the
waiver for failure to object, in the same manner complaint or information are so stated
that an aggravating circumstance not alleged may that they are capable of two or more
still be considered as such. My only interpretation interpretations, then the designation of
of this provision is that if this is not alleged in the the offense in the caption controls.
complaint or information and the prosecution
starts proving it, the defense can object and that
objection must be sustained. But if there is no Take note that under the new rape law, RA
objection, the old rule can still be applied because 7659, there are some circumstances which if
of estoppel or waiver. present call for the mandatory death penalty. In
the case of
Well, that is my personal view on that matter. I
do not know whether my view is correct or not. PEOPLE vs. MANHUYOD, JR.
But I believe my view is correct because anyway
even the judges here in Davao are asking for my May 20, 1998
view. I receive calls from time to time from these
people. [ehem!] HELD: When you charge
somebody with a heinous crime such
Q: Lets go to Section 9. Suppose the offense as rape, the information must make
says, criminal case for murder but in the body of reference to the new law. If not, it will
the information there is no allegation of a only be translated as an ordinary
qualifying circumstance. What does the fiscal aggravating circumstance because the
charge, Murder or Homicide? information was charged after the
A: HOMICIDE. The SC held that the effectivity of the heinous crime law.
designation of the offense is not an essential Finally, a few words on the lack of
element of a complaint or information, because, care devoted to the preparation of the
at most that is a mere conclusion of the fiscal. information filed before the trial court.
What is controlling is the recital of facts appearing The Office of the Provincial Prosecutor
in the body of the complaint or information. had in its possession evidence that the
(People vs. Agito, April 28, 1958; People vs. crime was committed by a father
Cosare, 95 Phil. 656) against his 17-year old daughter after
the effectivity of R.A. No. 7659, hence
But there are some EXCEPTIONS like what the imposable penalty was death. It
happened in the case of was then necessary to make reference
to the amendatory law to charge the
U.S. vs. TICZON proper offense that carried the
mandatory imposition of capital
25 Phil. 67 punishment.
Prosecutors are thus admonished
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 24

to exercise utmost care and diligence ISSUE: Was there a murder?

in the preparation of complaints or
informations to avert legal HELD: YES. When the accused
repercussions which may prove killed the minors, that is equivalent of
prejudicial to the interest of the State killing by treachery and therefore
and private offended parties. qualifies the killing to murder.
It has, time and again, been held
that the killing of minor children who,
Q: According to Section 9, the elements of the by reason of their tender years, could
crime must be recited in the complaint or not be expected to put up a defense is
information. Must the exact language of the law considered attended with treachery
be used? even if the manner of attack was not
A: NO. You can use other words provided it shown. The allegation in the
would convey the same idea or thought. Information that the victims are both
minors is to be considered compliance
EXAMPLE: THEFT. The information does not with the fundamental rule that the
contain the allegation intent to gain which is an qualifying circumstances should be
element of the crime of theft. The SC said it is not alleged in the information.
required because those words are presumed from It is commonly understood in
the information that the accused appropriated to practice that when the victim in
himself the things belonging to the offended party. physical injuries, homicide, or murder
(U.S. vs. Alabot, 38 Phil. 698) cases is a child of tender years, he is
described in the information as a
EXAMPLE: ROBBERY WITH FORCE UPON minor. Minority in such a case should
THINGS. There was no allegation that the not be equated with its statutory
accused entered the house of the victim with the meaning that is, below eighteen
use of force upon things but the information (18) years old. It is used not so much
alleges that the accused entered the house of the as to state the age of the victim
victim by passing through a hole in the ceiling, an (otherwise, the charging fiscal would
opening not intended for entrance. Ano yan? The have simply placed the exact ages)
SC said that is tantamount to use of force upon rather, it is more of a description of the
things. (People vs. Lareza, 73 Phil. 658) state of helplessness of the young
EXAMPLE: MURDER. There was no
allegation of treachery (alevosia) but the
information says that when the accused killed the Q: CONSPIRACY. Jet and Pao are charged
victim, the latter was not in the position to defend for murder pero ang sinasabi sa information, it
himself. The SC said they mean the same thing. was Jet who killed the victim. Now, in conspiracy,
In fact, it became clearer. (People vs. Gustahan, the act of one is the act of all. Would that
47 Phil. 376) sufficiently charge Pao?
A: NO. Kailangan mong i-describe ang
Another interesting case of treachery is the conspiracy para matamaan si Pao. Klaruhin mo
case of yung conspiracy, otherwise if the allegation of
conspiracy is not shown against Pao, then, there
is no crime of conspiracy. This is the guideline
PEOPLE vs. ABUYEN laid down by the SC in the 1998 case of
213 SCRA 569 (1992)

FACTS: The accused here killed PEOPLE vs. QUITLONG

two (2) children, one was aged 6 years
and the other was 13 years old. He 292 SCRA 260
stabbed them. The information
charges the accused with the killing HELD: Unlike the omission of an
the 2 minors. There is no statement ordinary recital of fact which, if not
that there was treachery. All that the excepted from or objected to during
information says is that the accused trial, may be corrected or supplied by
killed the 2 minors. competent proof, an allegation,
however, of conspiracy, or one that
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would impute criminal liability to an person in authority. (People vs. Carpizo, 80 Phil.
accused for the act of another or 234) Of course, I believe that if the position is
others, is indispensable in order to obvious, the court will take judicial notice of that.
hold such person, regardless of the There is no need to describe. But if it comes to
nature and extent of his own some position which are not really common, the
participation, equally guilty with the information must recite the functions.
other or others in the commission of
the crime. Verily, an accused must EXAMPLE: TREASON. An information for
know from the information whether he treason is insufficient if it merely alleges generally
faces a criminal responsibility not only that the accused had adhered to the enemy,
for his acts but also for the acts of his giving her aid and comfort. The charge must be
co-accused as well. specific by stating what is termed as overt act of
Meaning, if you are charging me giving aid and comfort to the enemy. (Guinto vs.
for what my companion did, you better Veluz, 77 Phil. 798)
be clear that there is conspiracy para
ma-apply yung doctrine na the act of EXAMPLE: LIBEL. In charging libel, the
one is the act of all. prosecution must single out the libelous
The opinion of the trial court to the statements and quote verbatim in the complaint
effect that conspiracy may be inferred or information. (People vs. Bustos, 59 Phil. 375)
from the allegation of abuse of
superior strength and with the aid of We will go to another issue regarding
armed men is difficult to accept. the HABITUAL DELINQUENCY. The case is
information must state that the
accused have confederated to commit PEOPLE vs. VENUS
the crime or that there has been a
community of design, a unity of 63 Phil. 435
purpose or an agreement to commit
the felony among the accused. FACTS: The City Fiscal of Manila
Conspiracy must be alleged, not just file with the CFI of Manila an
inferred, in the information on which information charging the accused with
basis an accused can aptly enter his the crime of robbery in an inhabited
plea, a matter that is not to be house. The information alleges,
confused with or likened to the among others, that the accused is a
adequacy of evidence that may be habitual delinquent, he having been
required to prove it. previously convicted by final
judgement rendered by a competent
You can prove conspiracy by direct evidence. court, once for the crime of attempted
But kahirap niyan uy unless you were there robbery in an inhabited house and
listening. In criminal law, when two or more once for theft, the date of his last
persons act together in unison to attain the same conviction being November 14, 1934.
criminal objective, then conspiracy can be Note: There is habitual
inferred. Meaning, you can use that as evidence delinquency when, for a period of ten
to convict a person but for purposes of filing the (10) years, from the date of his last
case, you must expressly allege it. conviction or release for a crime of
serious or less serious physical
Therefore, for purposes of charging injuries, robbery, theft, estafa and
express. For purposes of proving implied. Yan! falsification, he is found guilty of any of
This is precisely because directly proving it, is said crimes, a third time or oftener.
difficult. The manner of charging is different from
the manner of proving. (People vs. Quitlong, ISSUE: Was there a sufficient
supra) allegation of habitual delinquency?

EXAMPLE: DIRECT ASSAULT. The SC said HELD: NO. Habitual delinquency,

it is not enough for the information to say that the can not be taken into account in the
victim is a person in authority. The charge for present case because of the
such offense must be so framed as to clearly insufficiency of the allegation on this
allege the functions of the person assaulted, so point in the city fiscal's information.
as to show that he comes under the definition of While the information specifies the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 26

particular offense (attempted robbery of habitual delinquency, no less than

in an inhabited house) for which the the frequency with which hardened
defendant-appellant was alleged to criminals escape the imposition of the
have previously been convicted and deserved additional penalty provided
also the date of the last conviction for for by law.
theft which occurred prior to the date
of the commission of the offense now
charged. But this does not make the Q: Must excepting clauses be alleged in a
information sufficient in law for it fails complaint or information?
to specify the date of the conviction of A: It DEPENDS. If the excepting clause forms
the accused for the crime of attempted part of the definition of the offense, it must be
robbery. For all we know, the two alleged; but if it is a matter of defense, it need not
previous convictions for attempted be alleged in a complaint or information. (U.S. vs.
robbery in an inhabited house and Chan Toco, 12 Phil. 262)
theft may have taken place on the
same date (November 14, 1934) or on Sometimes it is hard to distinguish what is an
two different dates so close together element of a crime, and what is a matter of
as to warrant the court in considering defense as stated in a law. The exceptive clauses
the two convictions as only one for the such as provided further, and provided
purposes of the application of the furthermore are very confusing. Sometime you
habitual delinquency law. get lost. Ano ba itong provided further? Is this
Upon the other hand, it may part of the crime or is it a part of the defense?
happen that a person accused of robo, Confusing ba! Like in the old case of
hurto, estafa or falsificacion may have
been convicted of any of said offenses U.S. vs. POMPEYA
after the commission of the crime with
which he is charged. We have already 31 Phil. 245
held that previous convictions in order
to be considered for the purpose of FACTS: The municipal
imposing the additional penalty for government passed an ordinance
habitual delinquency, must precede which requires all able-bodied male
the commission of the crime charged. residence of the municipality between
Other instances may be mentioned but the ages of 18 and 35 to assist in
those given suffice to demonstrate the peace and order campaign in the
necessity of charging the existence of municipality by rendering services.
habitual delinquency with sufficient The accused violated the ordinance.
clearness and certainty to enable the So he was charged. The information
courts to properly apply the provisions says he is a resident of the
of our law on the subject. municipality, he is male, he is able-
It is therefore urged upon bodied and he refuses to render
prosecuting attorneys that in the service to the government. According
prosecution of cases of this nature, to the accused, the information is
they should not content themselves defective, it does not reconcile all the
with a general averment of habitual elements because it does not state
delinquency but should specify the how old he was. But according to the
dates: prosecutor, No! I do not have to
1. of the commission of the allege your age. It is for you to prove
previous crimes, that you are below 18 or more than
2. of the last conviction or 35!
release, and
3. of the other previous ISSUE: Whether or not the clause
convictions or release of in the ordinance pertaining to the age
the accused. range of 18 to 35 is part of the crime,
Informations filed in these cases because if it is part of the crime, then it
should be sufficiently clear and must be alleged.
specific to avoid the improper
imposition of the additional penalty on HELD: The SC ruled that the age
a plea of guilty to a general allegation requirement is an element of the crime
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 27

and therefore must be alleged. Failure of the crime.

to allege it is fatal because he may
belong to the exempt age in which
case the prosecution may not prosper. SEC. 10. Place of
commission of the offense.
Let us try to compare that in the case of The complaint or
U.S. vs. YAO SIM information is sufficient
31 Phil. 301 if it can be understood
from its allegations that
FACTS: The accused was charged the offense was committed
with violation of the opium law. The or some of its essential
opium law was the predecessor, the ingredients occurred at
great grandfather of the Dangerous some place within the
Drugs Act. That was the old law which jurisdiction of the court,
prohibits the use and smoking of unless the particular
opium without the prescription of a place where it was
licensed practicing physician. committed constitutes an
The accused argued that there is essential element of the
no crime committed because the offense charged or is
information did not allege that the necessary for its
accused has no prescription from a identification. (10a)
duly licensed or a practicing physician.
But the prosecution contended that it Q: When you say place, do you have to be
is for the accused to prove that he has very specific as to the place where the crime was
a prescription. The element of the committed? You must describe the kalsada, the
crime is only smoking opium. street?
A: NO. As a matter of fact, if you look at the
HELD: The SC said, the information, it just says, you committed the crime
prosecution is correct. It is not part of in Davao City without even stating what barangay
the crime, it is a matter of defense. or barrio. So, the place of the commission of the
The crime is smoking opium, period! crime maybe stated generally. What is only
But if you say you have prescription, important is it is within the territorial jurisdiction
then you prove it.
EXCEPTION when the place of the
That is sometimes the difficult areas in the commission of the crime constitutes an essential
law. You dont know whether it is part of a crime element of the crime charged. Yan! You must be
or just a part of your defense. There are things specific. Examples:
that we have to determine. This is part of our
study of Section 9. EXAMPLE: TRESPASS TO DWELLING. You
must specify that the crime was committed by
Q: Like for example, yung ILLEGAL entering into the dwelling of somebody. You
POSSESSION OF FIREARMS. Do you have to cannot just say that he committed it in Davao
allege that the firearm is not licensed? City. You must say na pumasok siya sa bahay na
A: The SC said YES, that is part of the crime. ito. Or


man. If you are in possession of opium, marijuana HOUSE, PUBLIC BUILDING OR EDIFICE
or whatever, you are liable if without authority of DEVOTED TO WORSHIP. You must state the
law. Now, who will prove the authority of law? Is particular house. Kailangan specific ka diyan.
that part of the definition of the crime?
A: The SC said NO. It is for you to prove that
you are authorized. The crime is the possession SEC. 11. Date of
or use of marijuana. That you are authorized to commission of the offense.
- It is not necessary to
possess or smoke is a matter of defense.
state in the complaint or
information the precise
Now lets go to the next section. You must
date the offense was
allege the place of the commission of the crime.
committed except when it
You must also allege the date of the commission
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 28

is a material ingredient Section 10, UNLESS the date of the commission

of the offense. The of the crime is an essential element of the crime.
offense may be alleged to Like for example:
have been committed on a
date as near as possible EXAMPLE: VIOLATION OF ELECTION
to the actual date of its CODE, drinking liquor during election day. You
commission. (11a) must be specific kung anong araw yun. Hindi
pwedeng on or about election day. Hindi pwede
yan! If you drank liquor before, wala mang crime.
Q: How about yung date? Is it necessary that If you drink liquor after, wala mang crime ba!
it should be very accurate?
A: NO. What is important is that the EXAMPLE. INFANTICIDE. It is committed by
information alleges that the crime was committed killing a child less than 3 days old or less than 72
on or about a certain date. hours. If the infant is exactly 3 days old, it is no
longer infanticide. So the information must be
Q: The information said that Judy committed very specific that the child was born on this day,
homicide on January 20. During the trial, on this time and the killing was done on this day,
pinalabas na December 20 pala one month on this time.
earlier. Is that harmless or fatal?
A: It is still covered by the phrase on or
about. A variance of a few months between the SEC. 12. Name of the
time set out in the indictment and that established offended party. The
by the evidence during the trial has been held not complaint or information
to constitute an error so serious as to warrant must state the name and
reversal of a conviction solely on that score alone. surname of the person
(Rocaberte vs. People, 193 SCRA 192) against whom or against
whose property the offense
But when you say December 2000 and then was committed, or any
the crime pala was committed in 1995, ay sobra appellation or nickname by
na yan! That is too much. Five (5) years is no which such person has been
longer covered by on or about. That is already or is known. If there is
violative of Section 11. A variance of several no better way of
years, or the statement of the time of the identifying him, he must
commission of the offense which is so general as be described under a
to span a number of years has been held to be fictitious name.
fatally defective. (Rocaberte vs. People, 193 (a) In offenses against
SCRA 192) property, if the name of
the offended party is
Q: And what is the remedy in that case? unknown, the property must
A: The remedy against an indictment that fails be described with such
to allege the time of the commission of the particularity as to
offense with sufficient definiteness is a motion for properly identify the
a bill of particulars (Rocaberte vs. People, 193 offense charged.
SCRA 192). Do not dismiss the information. That (b) If the true name of
was commented by the SC in the recent case of the person against whom or
People vs. Garcia, November 6, 1997 (281 SCRA against whose property the
463). offense was committed is
thereafter disclosed or
I have to admit that the rules now try to make ascertained, the court
a gap between the date of the commission of the must cause such true name
crime as alleged in the information and the actual to be inserted in the
complaint or information
date of commission to be not so far. You look at
and the record.
Section 11: xxx The offense maybe allege or
(c) If the offended
committed on a date as near as possible to the
party is a juridical
actual date of its commission. That phrase as
person, it is sufficient
near as possible is not found in the 1985 rules.
to state its name, or any
name or designation by
The ONLY EXCEPTION is just like in the
which it is known or by
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 29

which it may be offended party.

identified, without need
of averring that it is a Q: What happens if there was an erroneous
juridical person or that naming of the offended party?
it is organized in A: In the case of
accordance with law. (12a)

Lets go to the next rule name of the PEOPLE vs. UBA

offended party. You must allege also who is the 99 Phil 134
victim. We are talking here about the victim the
private offended party. FACTS: Vidz, on a certain date,
was alleged to have uttered publicly
Q: Why is it that the name of the offended slanderous words against Jessamyn.
party must be alleged in the information? So Jessamyn is the victim of the
A: First, the general rule is that, aside from the slander. Alam niyo during the trial, it
People of the Philippines, there is a private victim. turned out that the victim pala was
Second, so that we will know to whom the court Lyle, not Jessamyn. But everything is
will award the civil liability. the same the date and place of the
commission, the defamatory words
Q: Is there a possibility by which the name of pare-pareho! Only, there was an
the offended party is not mentioned in the erroneous designation of the offended
information but the same is still valid? party.
A: YES. Paragraph [a], in a crime against
property. If you do not know who is the victim of ISSUE: Can the court convict Vidz
theft or robbery, it is enough that you describe the for the crime of slander?
property in the information.
HELD: NO. Although the words
EXAMPLE: A thief, nahuli and he was found are the same, the slander against Lyle
in possession of stolen goods and he admitted he is a separate offense. Meaning, you
stole. Kanino? Ewan ko. Basta gi-snatch ko man are charging a different offense from
lang ito. Can the police file a case? YES. You the crime proven. You cannot convict
just describe the property in the information even a person of a crime not properly
if we dont know the owner because you commit charged.
theft when you take personal property belonging A mistake in putting in the
to another with intent to gain. What is important is information the name of the offended
that, it belongs to another. party is a material matter which
necessarily affects the identification of
the act charged. The case should be
PEOPLE vs. CFI OF QUEZON BR. 5 dismissed for variance between the
allegations of the information and the
209 SCRA 704 proof.

FACTS: The accused was charged However, there were exceptions in the past
with timber smuggling or illegal cutting like where the accused, who is not a doctor, was
of logs from public forest under PD No. charged of illegal practice of medicine. The
320. Ayan, wala talagang private information stated that the offended party is Paul.
offended party diyan. The only Pag-trial, hindi pala si Paul. Si Inay pala dapat
offended party is the government. But ang victim. The SC said the accused can be
the information does not mention that convicted. Why? The crime is illegal practice of
the offended party is the State. The medicine regardless of whether the victim is Paul
accused challenged the information on or Inay. (Diel vs. Martinez, 76 Phil. 273) Yan! It is
this ground. different from the case of Uba.
HELD: Even if the State is not
mentioned, the information is NOT SEC. 13. Duplicity of
defective. Why? You look at the the offense. A complaint
caption of the case People of the or information must charge
Philippines. That is actually the only one offense, except
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 30

when the law prescribes a are accusing somebody of 2 homicides based on

single punishment for 1 single act. But that is only an exception. There
various offenses. (13a) is one penalty anyway.

The complaint or information must charge EXAMPLE: SPECIAL COMPLEX CRIMES.

only one offense. It cannot charge 2 or more Robbery with homicide or Rape with Homicide.
offenses. If it does, it is called duplicitous That is not duplicitous. There is one penalty there.
complaint or information.
Q: What is the remedy there? accused stole 2 rooster owned by 2 different
A: Actually, you can file a Motion to Quash people. Actually, there are 2 acts of taking but in
under Section 3 [f], Rule 117. But the defect is the eyes of the law, there is only one crime. The
waivable because if you do not file a Motion to accused was motivated by single criminal
Quash, the trial can proceed and if you are found resolution.
guilty for committing 2 or more crimes, then there
will be 2 or more penalties (Section 4, Rule 120). EXAMPLE: Babang was charged of the crime
Dapat diyan, one information, one crime. That is of REBELLION. Rebellion she took up arms
the GENERAL RULE. against the government, killed soldiers, burned
government properties. Duplicitous yan! Kadami-
This seems to go against the rule in civil dami nyan o! NO. That is not duplicitous because
procedure about joinder of causes of action. In based of the absorption doctrine the common
one complaint you can join 2 or more causes of crimes are not to be treated as separate crimes
action, although you can also file 2 or more but are already absorbed in the rebellion. The SC
cases. Anong tawag diyan? Joinder of parties or said there is no crime such as rebellion
joinder of causes of action. There is no such thing complexed with murder or homicide. But why do
as joinder of crimes in criminal procedure. you have to recite all these things? That is merely
a recital of the manner of the crime of rebellion.
EXAMPLE: The Patrick got a gun, went out of That is not a violation of Section 13.
the street, then met three people. Binaril niya:
Bang! Bang! Bang! Tatlong tao patay!. Now, he
commits three (3) crimes of homicide.
Q: Can I file one information accusing Patrick
of 3 homicide committed on that day? 47 Phil. 536
A: NO. That is duplicitous. There must three
(3) informations, one for each victim. FACTS: There was a special law
penalizing in once section the crime of
Q: But that is troublesome. The evidence or illegal practice of medicine AND
the witnesses are identical. What is the remedy? illegally advertising oneself as a
A: You file a Motion to Consolidate your trial doctor. The penalty of 5-year
joint trial for the 3 criminal cases. That is the imprisonment shall be imposed on a
remedy, but not 1 information charging 3 acts of person who, not being a physician,
homicide unless the other party does not question practice medicine or advertise himself
the duplicitous character of the information. as a physician. There is only one
penalty for these acts. The information
EXCEPTION. The rule prohibiting duplicitous alleges: That the accused is charged
complaints or informations provides for of violating that law because he
exceptions: Except when the law prescribes a practiced medicine, or IN THE
single punishment for various offenses. When ALTERNATIVE, he advertised himself
the law provides only one penalty for 2 or more as a doctor when in fact, he is not.
offenses then Section 13 is not violated.
Examples: ISSUE: Is the information
single act produces 2 or more grave or less HELD: NO. When the information
felonies or when one offense is a necessary merely recites in the alternative or
means to commit another. Actually, parang otherwise the different ways of
duplicitous yun eh kung tingnan mo because you committing the offense like the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 31

information charges the accused for problem. It can be allowed at any stage.
illegal practice of medicine and with Substantial amendment, for as long as there is
illegally advertising himself as a still no responsive pleading, the plaintiff can
physician, there is only one crime amend his complaint anytime. Once a responsive
because these are only alternative pleading is filed, substantial amendment is
ways of committing the crime. allowed but with leave of court.

The rule is different when the accused is In criminal procedure the rule is: for as long as
charged of violating 2 different sections of the the accused has not yet entered his plea wala
same law with distinct penalties which, if charged pang arraignment, the accused has not yet
in a single information, would render it duplicitous. pleaded guilty or not guilty the information can
(People vs. Ferrer, 101 Phil. 234) be amended either in substance or in form.

SEC. 14. Amendment or Q: What happens if the accused has already

substitution. A entered his plea? Can the information still be
complaint or information amended by the prosecution?
may be amended, in form or A: As to FORM Yes, as a matter of judicial
in substance, without discretion. Kailangan merong permission.
leave of court and when it As to SUBSTANCE Never! Bawal! 100%
can be done without prohibited.
causing prejudice to the
rights of the accused. Q: How do you determine whether the
However, any amendment amendment is formal or substantial? Sometimes
before plea, which madali, sometimes mahirap. Kung wrong spelling
downgrades the nature of lang, talagang formal yan.
the offense charged in or A: According to the SC based on certain
excludes any accused from cases, the following are considered substantial
the complaint or and therefore cannot be allowed after plea:
information, can be made
only upon motion by the 1. if the amendment changes the manner
prosecutor, with notice to of the commission of the offense;
the offended party and (People vs. Zulueta, 89 Phil. 752)
with leave of court. The
court shall state its 2. if it changes the name of the offended
reasons in resolving the party; (People vs. Uba, 99 Phil. 134)
motion and copies of its
order shall be furnished 3. if it changes the date of the
all parties, especially
commission of the offense; (People vs.
the offended party. (n)
Opemia, 98 Phil. 698)
If it appears at
Lets say, from the year 2000 to 5
anytime before judgment
years backwards. Hindi pwedeng
that a mistake has been
maging formal yan.
made in charging the
proper offense, the court
4. when the purpose of amendment is to
shall dismiss the original
complaint or information make the information charge an
upon the filing of a new offense when the original information
one charging the proper does not charge an offense; (Wong vs.
offense in accordance with Yatco, 99 Phil. 791) or
section 19, Rule 119,
provided the accused shall 5. when it changes the fact or ground of
not be placed in double responsibility alleged in the original
jeopardy. The court may information. (People vs. Labatete, 57
require the witnesses to O.G. 6783)
give bail for their Example: from accomplice,
appearance at the trial. gagawin kang principal. The same is
(14a) not formal.

In civil procedure, formal amendment no Q: How do you determine whether the

I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 32

amendment is as to form or substance? been violated, they being conclusions

A: An amendment which merely states with of law which in no way affect the legal
additional precision something which is already aspects of the information, but from
contained in the original information, and which, the actual recital of facts as alleged in
therefore, adds nothing essential for conviction for the body of the information.
the crime charged is an amendment to form that Petitioner in the case at bench
can be made at anytime. (People vs. Montenegro, maintains that, having already pleaded
159 SCRA 236) not guilty to the crime of homicide,
the amendment of the crime charged
Q: The amendment is substantial if the in the information from homicide to
amendment will prejudice the rights of the murder is a substantial amendment
accused. How do you determine whether the prejudicial to his right to be informed of
rights of the accused are prejudiced? the nature of the accusation against
A: The test as to when the rights of an him. He utterly fails to dispute,
accused are prejudiced by the amendment of a however, that the original information
complaint or information is when a defense under did allege that petitioner stabbed his
the complaint or information, as it originally stood, victim using superior strength. And
would no longer be available after the this particular allegation qualifies a
amendment is made, and when any evidence the killing to murder, regardless of how
accused might have, would be inapplicable to the such a killing is technically designated
complaint or information as amended. (People vs. in the information filed by the public
Montenegro, 159 SCRA 236) Meaning, evidence prosecutor.
which could help you in the first place will no
longer help you after the amendment that is Meaning, in the case of Buhat the prosecutor
prejudicial. believes originally that it is homicide, but it is
murder pala all along. We are not adding anything
265 SCRA 701, December 17, Kaya nga when I read it, I think theres
1996 something wrong here with this kind of ruling. Just
imagine, na-capital crime ka, tapos formal
FACTS: Danilo Buhat was charged amendment lang? You know my personal view in
with homicide in an information which the case of Buhat, it should be treated only as
alleged that the accused killed the homicide with the aggravating circumstance of
victim using superior strength. [Dapat abuse of superior strength. But that was what the
diyan murder eh because of superior SC said eh. Wala tayong magawa.
strength] Accused Buhat pleaded not
guilty. After that the prosecution However, any amendment
sought to amend the information by before plea, which
upgrading the crime charged from downgrades the nature of
homicide to the more serious crime of the offense charged in or
murder. excludes any accused from
the complaint or
ISSUE: Is the amendment information, can be made
SUBSTANTIAL or FORMAL? only upon motion by the
prosecutor, with notice to
HELD: It is FORMAL because the the offended party and
allegation of superior strength is with leave of court. The
already there. In other words, from the court shall state its
very start, it was really meant to be reasons in resolving the
murder. Mabuti sana kung dinagdag motion and copies of its
lang yung superior strength. It is order shall be furnished
already there all along. all parties, especially
The real nature of the criminal the offended party.
charge is determined not from the (n)(second paragraph,
caption or preamble of the information Section 14, Rule 110)
nor from the specification of the
provision of the law alleged to have The second paragraph of Section 14 is new.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 33

Take note in the case of Buhat, from homicide to from the crime charged and therefore the
murder. Ito naman, baliktad. Lets say before accused cannot be convicted for the crime proven
arraignment, sabi ng Fiscal: Teka muna, di pala because the crime proven is not included in the
murder, homicide lang pala, So, gi-downgrade crime charged.
Q: So what should the court do?
Now, if prosecutor will do that, he must notify A: The court should dismiss the complaint or
the offended party, at least the family, so that he information upon the filing of a new information by
can be heard before the trial court allows. So this the prosecution. Provided, the principle of double
time, the amendment is not a matter of right. jeopardy is not applicable.

Again, when you amend a complaint or Remember the case of Uba, where Vidz was
information to downgrade the nature of the charged with oral defamation for uttering
offense or when the amendment is to exclude an slanderous remarks against Jessamyn on a
accused from the complaint or information, of particular date and time. But during the trial, it
course, it can only be done by motion of the turned out that the slander was committed against
prosecutor, notice to the offended party, and Lyle. Now, can Vidz be convicted for the crime of
decree of court. That is a new provision. slander against Lyle, when the information says
the crime was against Jessamyn? NO. Although
If it appears at the crime proven is the same, however the
anytime before judgment erroneous designation of the offended party deals
that a mistake has been with entirely another crime committed against a
made in charging the different person.
proper offense, the court
shall dismiss the original Q: What should the court do in that case?
complaint or information A: Following Section 14, the fiscal should file
upon the filing of a new a new information almost exactly the same as the
one charging the proper old one, now the offended party is Lyle. The court
offense in accordance with will now dismiss the original charge which is
section 19, Rule 119, entirely different.
provided the accused shall
not be placed in double Q: What do you call that?
jeopardy. The court may A: SUBSTITUTION of complaint or
require the witnesses to information.
give bail for their
appearance at the trial. Q: Now, how do you distinguish substitution of
(Last paragraph, Section information from amendment of information?
14, Rule 110) A: The case of
Lets go to basic. TEEHANKEE JR. vs. MADAYAG

Q: After the trial, the crime proven is different 207 SCRA 134
from the crime charge. However, the former is
included in the latter. Will you dismiss the case? FACTS: This case was about the
A: NO, just convict the accused for the crime murder of Maureen Hultman. She was
proven since the crime proven is included in the shot but did not die immediately. So
crime charged. the crime charged was frustrated
murder. But while the case was
EXAMPLE: Jenny was charged with murder. pending, Hultman died. Therefore, the
After trial, the prosecution proved homicide. What
fiscal filed a new information for
will the court do? Dismiss the complaint for
murder? NO. Jenny should be convicted for consummated murder.
homicide because all the element of homicide are
also included in the crime of murder. (Rule 119) ISSUE: Distinguish amendment of
information from substitution of
However, that is not what Section 14 information? [This would be clearer
contemplates. What is contemplated by Section when we reach Rule 112 on
14 is, the offense proven is completely different Preliminary Investigation]
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 34

HELD: The first paragraph included in the original charge,

provides the rules for amendment of hence the accused cannot
the information or complaint, while the claim double jeopardy.
second paragraph refers to the
substitution of the information or In amendment, you are not changing the
complaint. crime. The crime is the same. Therefore, after the
It may accordingly be posited that accused has pleaded, you cannot change the
both amendment and substitution of information anymore. That is why substantial
the information may be made before or amendments can never be allowed after the plea.
after the defendant pleads, but they If this rule is violated, he will be placed in double
differ in the following respects: jeopardy because you are charging him for the
same offense or an offense necessarily included
1. AMENDMENT may involve in the original charge.
either formal or substantial
changes, while On the other hand, substitution presupposes
SUBSTITUTION necessarily that the new information or complaint involves a
involves a substantial change different offense which is not necessarily included
from the original charge; in the in the original charge. Therefore, the
accused cannot claim double jeopardy. How can
2. AMENDMENT before plea has you invoke double jeopardy in substitution when
been entered can be effected the new charge is completely different from the
without leave of court, but original charge?
SUBSTITUTION of information
must be with leave of court as I remember this was a 1992 decision. During
the original information has to the 1994 Bar exams, this was one of the
be dismissed; questions that entered into my mind. Nahulaan ko
na lalabas ito eh. (ehem!): distinguish amendment
3. Where the AMENDMENT is from substitution. Just remember the case of
only as to form, there is no Teehankee Jr. vs. Madayag. I think that question
need for another preliminary was only 3 points. Alright.
investigation and the retaking
of the plea of the accused; in
SUBSTITUTION of information, SEC. 15. Place where
another preliminary action is to be
investigation is entailed and the instituted. (a) Subject to
accused has to plead anew to existing laws, the
the new information; and criminal action shall be
instituted and tried in
4. An AMENDED information the court of the
refers to the same offense municipality or territory
charged in the original where the offense was
information or to an offense committed or where any of
which necessarily includes or is its essential ingredients
necessarily included in the occurred.
original charge, hence (b) Where an offense is
substantial amendments to the committed in a train,
information after the plea has aircraft, or other public
been taken cannot be made or private vehicle in the
over the objection of the course of its trip, the
accused, for if the original criminal action shall be
information would be instituted and tried int
withdrawn, the accused could, eh court of any
invoke double jeopardy. On the municipality or territory
other hand, SUBSTITUTION where such train,
requires or presupposes that aircraft, or other vehicle
passed during its trip,
the new information involves a
including the place of its
different offense which does
departure and arrival.
not include or is not necessarily
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 35

(c) Where an offense is necessary to prosecute and punish the

committed on board a criminal in the very place, as near as
vessel in the course of may be where he committed his crime
its voyage, the criminal (MRR Co. vs. Atty. General, 20 Phil.
action shall be instituted 523);
and tried in the court of
the first port of entry or 2. As to the interest of the accused, it
of any municipality or would cause him great inconvenience
territory where the vessel in looking for witnesses and other
passed during such voyage, evidence in another place. (Beltran vs.
subject to the generally Ramos, 96 Phil. 149)
accepted principles of
international law.
(d) Crimes committed The law says, the criminal case will be tried,
outside the Philippines where?
but punishable under 1. where the offense was committed; or
Article 2 of the Revised 2. where any of the essential ingredients
Penal Code shall be occurred.
cognizable by the court
where the criminal action
is first filed. (15a)
In civil case we call this venue. In criminal
procedure, venue is also jurisdiction. It refers to This refers to what you call local offense.
territorial jurisdiction. So if you file a criminal case What do you mean by a local offense? It is an
in the wrong place, the accused could question offense, which is fully consummated in one place.
the jurisdiction of the court over the offense. This Meaning, all the elements of the crime happened
is one difference between civil and criminal in that place.
(a) Subject to existing INGREDIENTS OCCURRED
laws, the criminal action
shall be instituted and This refers to what text writers call the
tried in the court of the continuing offense where the elements occurred
municipality or territory in 2 or more places one element occurs here,
where the offense was the other in another place. So either one can try
committed or where any of the case. The venue in this case is the choice of
its essential ingredients the prosecution.
occurred. (Section 15,
Rule 110) And mind you, the word continuing offense
should not be confused with the concept in
The word municipality here includes cities criminal law the so-called continuous crime
because it could be a city. Municipality definitely under Article 48 also known as delicto
refers to a crime triable by the MTC. The word continuado. Dalawang klaseng continuing crime,
territory refers to a crime triable by the RTC eh. One of the relatives of complex crime is
because of the provision of Section 18, BP 129 delicto continuado where a person performs a
that every RTC has its own territory over which it series of acts but all emanating from one criminal
resides, for purposes of venue in civil cases and resolution but the issue to be resolved is: how
jurisdiction in criminal cases where the offense many crimes were committed by the accused?
was committed or where any of the essential Yun ang tanong dun.
ingredients occurred.
Ito namang continuing offense, the question
Q: Why does the law prescribes that the case here is: in which court of what place will the crime
be filed or tried in the place where the crime was be tried? Yan!
A: The following are the reasons: Q: How do you define a continuing offense or
1. The interest of the public requires that, transitory crime?
to secure the best results and effects A: It is a crime where the elements occur in
in the punishment of crimes, it is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 36

several places. inconsequential.

It may not be suggested, for instance, that, in
EXAMPLE: KIDNAPPING or ABDUCTION. the crime of bigamy which presupposes a prior
The accused kidnapped Eltor in Davao City and subsisting marriage of an accused, the case
brought the Eltor in Cotabato and hidden there. should thereby be triable likewise at the place
Same thing with abduction: Karen was abducted where the prior marriage has been contracted.
in Davao City and brought in Cotabato. (People vs. De Guzman, October 5, 1993)

Q: Where should the case of kidnapping or Q: ESTAFA or MALVERSATION. The

abduction as the case may be, be filed? companys head office is in Makati. Kenneth is
A: It could be filed in Davao where the victim the representative of the company assigned in
was taken or abducted, or in Cotabato were the Davao. He collects payments from customers in
victim was brought. Davao and he is supposed to remit all his
collections to Makati. Kenneth did not remit his
Q: Brod Pito took your vehicle here in Davao collections to Makati. Where should the case of
and brought it to Cotabato. Where should the estafa be brought? Davao or Makati?
crime of qualified theft be tried? Davao or A: Either of the two. The crime is continuing. It
Cotabato? Is that a continuing offense or not? shall be instituted in the place where the
A: Davao. It is a local offense. From the misappropriation was committed OR in the place
moment the car was taken in Davao, the crime where the accused was to render his accounting.
has already been consummated. It is not an (U.S. vs. Mesina, 42 Phil. 67)
indispensable requisite of theft that the thief carry,
more or less far away, the thing taken by him Lets go to BOUNCING CHECKS law. Where
from its owner. (Duran vs. Tan, 85 Phil. 476) should the criminal case for violation of bouncing
Theft is committed by taking personal things. checks law be filed? Sometimes, fiscals get
Taking is instant. From the moment it came to y confused. You owe me, you are in Manila, then
our possession, tapos na! you issue a check in Manila and sent it to Davao.
Then I will deposit the check in Davao. Of course
Lets go to the issue of FENCING you buy the bank will forward it to Manila for clearance.
stolen property. If you have known it is stolen, you The Manila bank dishonored it kay walang
are liable. But take note: there can be no fencing pondo. Where is the venue for such crime? That
if there is no robbery or theft. Fencing is what happened in the case of
presupposes there is robbery or theft.

Q: Inday stole a property in Digos. It was PEOPLE vs. GOROSPE

brought here and Maritess bought it here in
Davao. Maritess is now charged with fencing. Of January 20, 1988
course Maritess can be charged here in Davao
(reiterated in Lee vs. CA [1995])
City because she bought it here. But can the
crime of fencing be also filed in Digos where the
FACTS: The accused is from
theft was committed on the theory that: how can
there be fencing unless there was theft? Bulacan. He was a dealer of San
Therefore everything can go back to the place Miguel products and he is under the
control of the Central Luzon Regional
where the original crime was committed. Is that
correct? Office of San Miguel Corporation
A: It is NOT correct because fencing is not a (SMC) which is in San Fernando,
Pampanga. So a representative of
continuing crime. It is a local offense. It is different
from the crime of theft or robbery. Both crimes are SMC went to Bulucan, collected from
two different crime. The law on fencing does not him, he issued checks which were
drawn in Bulucan. The checks were
require the accused to have participated in the
criminal design to commit, or to have been in any received by the representative of SMC
wise involved in the commission of, the crime of and went to the Head Office in
robbery or theft. Neither is the crime of robbery or Pampanga and turned-over it. The
theft made to depend on an act of fencing in order Pampanga office of SMC deposited
that it can be consummated. True, the object the checks with its depositary bank in
San Fernando, Pampanga. The
property in fencing must have been previously
taken by means of either robbery of theft but the checks were sent to Bulacan for
clearing. Talbog! With this, series of
place where the robbery or theft occurs is
cases were filed. Some cases were
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 37

estafa. Some were for violation of BP Q: Genie executed a false affidavit in Manila.
22. It was sent to Davao to be used in a certain
The accused challenged it proceeding or case. Where is the venue of the
because all these cases were filed in PERJURY?
San Fernando, Pampanga eh. A: It should be filed in the place where the
According to him, the cases should be false evidence was submitted and NOT in the
filed in Bulacan. Remember, the place where the false affidavit was subscribed
checks were Bulucan checks and it and sworn to. (U.S. vs. Caete, 30 Phil. 371)
was dishonored also in Bulacan. He
said, I did not deliver it in San Lets go to some EXCEPTIONS:
Fernando. I gave it to your
representative. So the check was Q: Are there instances where the crime is
delivered to a representative. So the committed in this place but the trial can be filed in
delivery was made in Bulacan. Thus another place, other than the place where the
the Pampanga court has no crime was committed?
jurisdiction. A: YES, if the law says so because of the
opening clause of paragraph (a) of Section 15
ISSUE: Is the contention of the which says, subject to existing laws. Meaning,
accused correct? this is the applicable rule unless other existing law
says otherwise.
HELD: NO! Mali! Actually, the
crime is continuing because the crime Q: Give instances where the crime maybe
continues up to the delivery of the committed in one place but the law provided for a
check to the Central Luzon Office of different venue of trial.
SMC in Pampanga. Under the A: The following:
Negotiable Instruments Law, the 1. Libel under Article 360 of RPC, it is
delivery of the check must be made to to be filed where the libelous matter
a person who takes it as a holder or was printed or first published, or where
bearer of the instrument. The checks the injured party resides or where he
are intended to be delivered in the holds office;
Head Office because it is the delivery
in Pampanga which makes the payee 2. Sandiganbayan Law cases falling
the bearer or the holder not the under the jurisdiction of the
employer who went to Bulacan. So Sandiganbayan are tried in designated
tinamaan ang Pampanga court. In places;
effect, it is a continuing crime.
In respect of the Bouncing Checks 3. Section 5 (4), Article VIII, 1987
case, it is likewise true that Constitution The SC may order a
knowledge on the part of the maker or change of venue or place of trial to
drawer of the check of the insufficiency avoid a miscarriage of justice as what
of his funds, which is an essential happened in the case of Sanchez and
ingredient of the offense is by itself a Misuari.
continuing eventuality, whether the
accused be within one territory or Those are the exceptions. All the rest covers
another. Accordingly, jurisdiction to other cases Paragraph (d) refers to crimes
take cognizance of the offense also committed on board a Philippine ship or airplane
lies in the Regional Trial Court of abroad. It is triable in the Philippines. Where in
Pampanga. Meaning, wherever the the Philippines? where the criminal action is first
checks go, the knowledge of filed. Kung saan, mamili ang prosecution kung
insufficiency is a continuing element. saan i-file.

Q: Where shall the criminal action for SEC. 16. Intervention

FALSIFICATION of a private document be filed? of the offended party in
A: It shall be filed in the place where the criminal action. Where
document was falsified, regardless of whether it the civil action for
was or was not put to the illegal use for which it recovery of civil
was intended. (U.S. vs. Barretto, 36 Phil. 204) liability is instituted in
the criminal action
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 38

pursuant to Rule 111, the 156 SCRA 325

offended party may
intervene by counsel in FACTS: This is a case for violation
the prosecution of the of BP 22. The offended party hired a
offense. (16a) private prosecutor to prosecute the
case. The accused challenged the
Of course, the prosecution is under the control appearance of the private prosecutor
of the fiscal but the law says, the private offended on the ground that BP 22 does not
party can intervene through counsel. That is what provide for any civil liability and
you call the appearance of the private prosecutor. therefore there is no civil liability.
So the trial court disqualified the
Q: When is it allowed? private prosecutor. The offended party
A: The following are the requirements: went to the SC.
1. if there is civil liability arising from the
crime because the purpose of the ISSUE: Is a private prosecutor
private prosecutor is to protect the civil allowed to intervene in a BP 22 case?
liability of the offended party;
2. there is no waiver. The offended party HELD: YES. A private prosecutor
should not waive the civil liability; is allowed to intervene in a BP 22 case
3. the offended party should not have because there is a civil liability in BP
reserved to file a separate civil action 22 even if the law silent about it.
because once you have made a Normally lawyers would say that
reservation, wala na. You cannot civil liability in a criminal case arises
anymore hire a private prosecutor; from the crime; because of the crime,
4. the civil action has not been previously there is civil liability. According to the
instituted because if the civil action is SC: WRONG!! It is not the crime which
already filed, you cannot intervene in is the source of the civil liability. It is
the criminal case. the damage that the accused caused
to the victim!
Q: What are the rights of the offended party in The generally accepted notion
a criminal action? that the civil liability actually arises
A: The following: from the crime a misconception or
1. to take part in the prosecution of the fallacy. [Masyadong malalim ang
offense; discussion ng SC dito] While an act or
2. to recover civil liability from the omission is felonious because it is
accused arising from the crime; and punishable by law, it gives rise to civil
3. to appeal from any judgment or order liability not so much because it is a
adversely affecting his claim to such crime but because it caused damage
civil liability. (People vs. Velez, 77 Phil. to another. Viewing things
1026) pragmatically, we can readily see that
what gives rise to the civil liability is
Q: Give the limitations to the offended partys really the obligation and the moral duty
right of intervention in a criminal action. of everyone to repair or make whole
A: The following: the damage caused to another by
reason of his own act or omission,
1. such intervention shall be under the done intentionally or negligently,
direction and control of the fiscal whether or not the same be
(Section 5); punishable by law. In other words,
2. such intervention shall only be for the criminal liability will give rise to civil
purpose of enforcing the accuseds liability only if the same felonious act
civil liability arising from the crime. or omission results in damage or injury
(People vs. Velez, supra) to another and is the direct and
proximate cause thereof. Damage or
One of the interesting case decided based on injury to another is evidently the
Section 16 is the 1987 case of foundation of the civil action. Such is
not the case in criminal actions for, to
BANAL vs. TADEO, JR. be criminally liable, it is enough that
the act or omission complained of is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 39

punishable, regardless of whether or

not it also causes material damage to
another. Article 20 of the New Civil SECTION 1. Institution
Code provides: of criminal and civil
Every person who, actions. (a) When a
contrary to law, willfully criminal action is
or negligently causes instituted, the civil
damage to another, action for the recovery of
shall indemnify the civil liability arising
latter for the same. from the offense charged
Regardless, therefore, of whether shall be deemed instituted
or not a special law so provides, with the criminal action
indemnification of the offended party unless the offended party
may be had on account of the waives the civil action,
damage, loss or injury directly suffered reserves the right to
as a consequence of the wrongful act institute it separately or
of another. The indemnity which a institutes the civil
person is sentenced to pay forms an action prior to the
integral part of the penalty imposed by criminal action.
law for the commission of a crime. The reservation of the
Every crime gives rise to a penal or right to institute
criminal action for the punishment of separately the civil
the guilty party, and also to civil action action shall be made
for the restitution of the thing, repair of before the prosecution
the damage, and indemnification for starts presenting its
the losses. evidence and under
circumstances affording
The ruling in Banal seems not to jive with the offended party a
Article 1157 of the New Civil Code. Under Article reasonable opportunity to
1157, the following are the sources of obligations: make such reservation.
1. laws; When the offended party
2. contracts; seeks to enforce civil
3. quasi-contracts; liability against the
4. quasi-delicts; accused by way of moral,
5. acts or omissions punishable by law. nominal, temperate, or
exemplary damages without
According to Article 1157, a crime punishable specifying the amount
thereof in the complaint
by law is a source of obligation. But in the case of
or information, the filing
Banal, the SC says NO, it is not the act or
fees therefore shall
omission but the damage or injury resulting from
constitute a first lien on
such act or omission. That is how to reconcile
the judgment awarding such
these two ideas.
Where the amount of
Q: We will go back to the issue in Banal is
damages, other than
there civil liability in BP 22 cases? actual, is specified in
A: YES because the offended party cannot the complaint or
get back his money. If there is damage, there is information, the
civil liability even if the law is silent. Huwag mo na corresponding filing fees
lang hanapin ang provision ng civil liability. For as shall be paid by the
long as there is damage, there is civil liability. offended party upon the
Yaaann! filing thereof in court.
Except as otherwise
provided in these Rules,
no filing fees shall be
required for actual
Rule 111
No counterclaim, cross-
claim or third-party
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 40

complaint may be filed by

the accused in the We will now go to Rule 111. This rule has
criminal case, but any been subjected to many amendments although
cause of action which the amendments may not be very radical. As a
could have been the
matter of fact, they only incorporate
subject thereof may be
litigated in a separate jurisprudence or principles laid down in decided
civil action. (1a) cases. The main principle is: when a criminal action
(b) The criminal action is filed, the civil action of the recovery of the civil
for violation of Batas liability arising from the offense charged is
Pambansa Blg. 22 shall be deemed instituted with the criminal action.
deemed to include the
corresponding civil What is the basis for that principle? The basis
action. No reservation to is Article 100 of the RPC, Every person
file such civil action criminally liable is also civilly liable. When you
separately shall be
say deemed instituted, it does not only cover the
Upon filing of the civil liability of the accused himself but also the
aforesaid joint criminal probable subsidiary civil liability of the employer
and civil actions, the under Article 103. You already knew of that rule
offended party shall pay that when an employee-accused is adjudged
in full the filing fees criminally liable and is insolvent, the employer of
based on the amount of the that accused who committed the crime while he
check involved, which was in the discharge of his duties will be the one
shall be considered as the to answer the civil liability. That is why the SC
actual damages claimed. said that whether he likes it or not, he is covered.
Where the complaint or It is advisable for the employer in that situation to
information also seeks to
help his employee in the criminal case because he
recover liquidated, moral,
nominal, temperate or will also be prejudiced if his employee will be
exemplary damages, the convicted. To borrow the language of the SC,
offended party shall pay whether he likes it or not, he is a forced intervenor
additional filing fees in the criminal case filed against his employee.
based on the amounts
alleged therein. If the Q: When is a civil action arising from a crime
amounts are not so alleged NOT deemed instituted with the criminal action?
but any of these damages A: The civil action is NOT deemed instituted
are subsequently awarded with the criminal action:
by the court, the filing
1. when the offended party has waived
fees based on the amount
awarded shall constitute a the civil aspect of the case;
first lien on the 2. when the offended party has reserved
judgment. his right to file a separate civil action;
Where the civil action or
has been filed separately 3. when the civil action was filed or
and trial thereof has not instituted ahead of the criminal action.
yet commenced, it may be 4. when the crime is one to which no
consolidated with the civil liability attaches. (People vs.
criminal action upon Maceda, 73 Phil. 679)
application with the court
5. when the civil action was filed in court
trying the latter case. If
the application is before the presentation of the evidence
granted, the trial of both for the prosecution in the criminal
actions shall proceed in action of which the judge presiding on
accordance with section 2 the criminal cases was duly informed.
of this Rule governing (Yakult Phils. vs. CA, 190 SCRA 357);
consolidation of the civil
and criminal actions. According to the second paragraph, the
(cir. 57-97) reservation must be made before the prosecution
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 41

starts presenting its evidence and under The only difference is: if the information
circumstances affording the offended party mentions the claim of the civil liability, the
reasonable opportunity. Before the trial, offended party is required to pay the docket fee
kailangan mag-reserve na siya. Otherwise the provided the docket fee is only for any claims for
court will consider the civil aspect deemed moral, exemplary and nominal damages. There is no
instituted. docket fee for actual damages.

Q: Suppose there was no mention of any

YAKULT PHILS. vs. COURT OF APPEALS claim for moral or exemplary damages, can he
190 SCRA 357 (1990) still prove them during the trial? YES. But he did
not pay docket fee?
FACTS: In a criminal case, the A: Never mind, once it is awarded, there is
offended party did not make a now a lien in the judgment for the payment of the
reservation but there is still no trial. docket fee.
However, without making a
reservation, the offended party filed a So there is difference in the rule in docket fee
civil action. After such filing, the in civil and criminal cases. Remember the case of
offended party told the court trying Sun Insurance in civil procedure? If the docket fee
the criminal case, that he has already was not mentioned in the complaint in the civil
filed a separate civil case so that the case they are deemed waived. You must pay the
court will not include anymore the docket fee at the start of the case though if it is
civil aspect. not mentioned, you are given the chance to
complete the payment or amend the complaint
ISSUE: Is there a proper filing of within reasonable time. In criminal cases, even if
the civil action without making a there is no mention of damages in the
reservation? Was the civil action filed information, you can still prove and claim them
ahead of the criminal case? as long as there is no waiver or reservation.

HELD: NO. However, there is no So in criminal cases, if the claim for moral or
question that after filing the civil case exemplary damages is mentioned in the
he told the court that he already filed a information, you must pay the docket fee upon
separate civil action and that is even a filing of the information. But whether alleged in
better reservation. In effect, there was the information or not, you can claim for actual
an automatic reservation although damages and there is no docket fee for actual
normally, reservation is done before damages except in cases under BP 22. That is the
the filing of the criminal case. Ito exception which is now embodied in Section 1
naman, filing before he informed the paragraph [b] which was take from SC circular
court. 57-97 there is no payment of docket fee for
actual damages except in criminal cases for
violation of BP 22 because paragraph [b] says:
Q: Has the offended party the right to claim
and prove damages in the criminal action where Upon filing of the
the complaint or information is silent as to such aforesaid joint criminal
claim? and civil actions, the
A: Every person criminally liable is also civilly offended party shall pay
liable. Therefore, even if the complaint or in full the filing fees
information is silent as to damages, the offended based on the amount of the
party has the right to claim and prove them in the check involved, which
shall be considered as the
criminal case, unless a waiver or a reservation of
actual damages claimed.
the civil action is made. (People vs. Rodriguez,
July 29, 1959; Roa vs. dela Cruz, Feb. 13, 1960)
Now, take note of the ruling in the case of
Cabaero vs. Cantos mentioned in civil procedure
So it is possible for the information to recite
the claim for civil liability or hindi na kailangan.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 42

which is now incorporated in the last paragraph party in the criminal case
of Section 1, paragraph [a]: and of the parties to
present additional
No counterclaim, cross- evidence. The consolidated
claim or third-party criminal and civil actions
complaint may be filed by shall be tried and decided
the accused in the jointly.
criminal case, but any During the pendency of
cause of action which the criminal action, the
could have been the running period of
subject thereof may be prescription of the civil
litigated in a separate action which cannot be
civil action. instituted separately or
whose proceeding has been
suspended shall be tolled.
Thats the Cabaero case which reversed Javier
vs. IAC, (171 SCRA 376) and Shaffer vs. RTC, (167 The extinction of the
SCRA 376). penal action does not
carry with it extinction
SEC. 2. When separate of the civil action.
civil action is suspended. However, the civil action
After the criminal based on delict shall be
action has been commenced, deemed extinguished if
the separate civil action there is a finding in a
arising therefrom cannot final judgment in the
be instituted until final criminal action that the
judgment has been entered act or omission from which
in the criminal action. the civil liability may
If the criminal action arise did not exist. (2a)
is filed after the said
civil action has already
been instituted, the
Lets go to Section 2. Suppose the offended
latter shall be suspended
in whatever state it may party made a reservation to institute a civil action
be found before judgment and a criminal case is filed, he cannot file the civil
on the merits. The action thats the rule. He must wait for the
suspension shall last outcome of the criminal case. The criminal case
until final judgment is enjoys priority.
rendered in the criminal
action. Nevertheless, The reason here is that there might be an
before judgment on the embarrassment in the administration of justice.
merits rendered in the You allowed the filing of the civil and criminal
civil action, the same cases together. Same evidence, same incident. In
may, upon motion of the
the criminal case, the accused was convicted but
offended party, be
consolidated with the in the civil case the claim for damages was
criminal action in the dismissed because the offended party failed to
court trying the criminal proved his claim by preponderance of evidence.
action. In case of That is something absurd!
consolidation, the
evidence already adduced So the best thing is unahin muna ang criminal
in the civil action shall case because anyway if there is an acquittal in the
be deemed automatically criminal case, you can still recover in the civil
reproduced in the criminal case because it is only a preponderance of
action without prejudice
evidence, or the accused may be acquitted by
to the right of the
prosecution to cross- reason of an exempting circumstance and yet it
examine the witness does not exempt him from civil liability in
presented by the offended another civil action.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 43

running period of
Take note that what is suspended is the civil prescription of the civil
action arising from the criminal act. (opening action which cannot be
paragraph of Section 2; Article 1157, New Civil instituted separately or
whose proceeding has been
suspended shall be tolled.
Q: What happens if na-una na-file yung civil
action? Ayun! The running of the prescriptive period
A: According to Section 2, from the moment shall be suspended. This was the doctrine in the
the criminal case is filed, the trial of the civil case case of People vs. Bayotas.
is suspended to wait for the outcome of the
criminal case. There is something new in the 2nd paragraph
about consolidation. When the civil case is filed
Q: Is this prejudicial to the offended party? ahead, the filing of the criminal case will suspend
A: There is a way out according to Section 2. the civil unless there is a petition to consolidate in
The first thing for him to do is to file a petition to which case the evidence presented in the civil
consolidate the trial of the criminal and civil case case is automatically considered reproduced in
for them to be tried together and the evidence the criminal case. Now read this part, third
already presented in the civil case is deemed paragraph of Section 2:
automatically reproduced in the criminal case.
This is what you call the consolidation of the civil x x x In case of
and criminal action under Section 2. consolidation, the
evidence already adduced
Q: Is this consolidation mandatory? in the civil action shall
A: NO. It is permissive. Actually, the offended be deemed automatically
party is the one to initiate this because if not, then reproduced in the criminal
he has to wait for the criminal case to be action without prejudice
terminated before he can file the civil case. to the right of the
prosecution to cross-
examine the witness
Q: What are the instances when the offended presented by the offended
party is not allowed to make a reservation party in the criminal case
therefore requires a mandatory consolidation? and of the parties to
A: The following are the instances: present additional
evidence. x x x
1. Violations of BP 22. (Paragraph b,
Section 1, Rule 111); What is new here is the phrase without
2. Libel under Article 360, RPC; prejudice to the right of the prosecution to cross-
3. Mandatory consolidation under the examine the witnesses presented by the offended party
Sandiganbayan law. For example, a in the criminal case I was wondering, there is
criminal case is supposed to be tried something wrong here. I believe there is a
by the SB and then you file a civil case typographical error here. Di ba the witnesses of
before the ordinary courts. What will the offended party in the civil case are also the
happen now to the civil case? The law witnesses of the prosecution in the criminal case?
says there must be a mandatory I was wondering why will the fiscal cross-
consolidation of both cases in the SB. examine his witnesses? I think the phrase really
means the witnesses presented by the accused.
Q: What happens if the filing of the civil
action will have to wait for the outcome of the Lets go to some decided cases.
criminal case, baka nag-prescribed na yung civil
action? CAOS vs. PERALTA
A: Read 3rd paragraph of Section 2: 115 SCRA 843

During the pendency of FACTS: The case of Caos was

the criminal action, the decided before the 1985 Rules. Here,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 44

there was reservation. There were two HELD: NO. They cannot be
(2) cases arising out of the same consolidated under Rule 111 because
incident. At that time, there was still what can be consolidated is a criminal
no specific rule on consolidation. case together with a civil case for
Judge Peralta ordered the damages from the crime committed. In
consolidation of the criminal and civil other words, damages ex delicto. But
cases and that was questioned. here, the criminal case was filed
against the officers of the corporation
ISSUE: Was the consolidation for damages and a civil case for
proper? If so, how do you reconcile specific performance was also filed
these cases because the degree of proof against the same officers. That civil
in the criminal case is not the same in case arose from a contract, i.e. ex
the civil case? contractu. [So if the civil case arose
from a contract, it cannot be
HELD: The consolidation was consolidated with the criminal case
proper under Rule 31 because there is under Rule 111.]
a common question of fact and law. But because it cannot be denied
They can be consolidated but for that it would be better if we try them
purposes of decision, the court will together because we are talking of the
now apply two (2) different criteria: same incident failure to deliver the
Proof beyond reasonable doubt in the title why not consolidate the two
criminal case and preponderance of cases under Rule 31, citing the case of
evidence in the civil case. So there is Caos vs. Peralta. In that case, the only
no incompatibility. ground was there was a common
question of fact and law so they
Now, here comes the 1985 Rules on should be consolidated under Rule 31
consolidation and one of the first cases which and NOT Rule 111.
reached the SC involving the new Rules was the
case of Naguiat.
The extinction of the
penal action does not
NAGUIAT vs. IAC carry with it extinction
164 SCRA 505 of the civil action.
However, the civil action
FACTS: Naguiat filed a case based on delict shall be
against a subdivision development deemed extinguished if
there is a finding in a
corporation where he bought a lot in
final judgment in the
installment basis. Under the criminal action that the
subdivision law kapag bayad na, you act or omission from which
issue the title. But according to the civil liability may
Naguiat, bayad na pero hindi binigay arise did not exist. (2a)
yung title. So he filed a case for (Last paragraph, Section
specific performance with damages 2, Rule 111)
against the subdivision and he also
filed a criminal case against the Yan! If the accused is acquitted, it will not bar
president of the corporation for failure the offended party from filing a civil action
to deliver to him the title of the land because the extinction of the penal action does
under PD 957. Now, he filed a motion not carry with it the extinction of the civil action
to consolidate under Rule 111. because for all you know in the civil case the
accused may be found liable.
ISSUE: Is the motion to
consolidate proper? It is now emphasized in the new rules
however, the civil action based on delict shall be
deemed extinguished if there is a finding in a final
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 45

judgment in the criminal action that the act or case. He does not know how the public
omission from which the civil liability may arise did prosecutor handled the case, baka ang testigo
not exist. This means that if the accused is kulang kaya na-acquit. So paano ako (offended
acquitted based on reasonable doubt, there could party)? I will file my own civil case and maybe I
still be civil liability arising from the crime or will use quasi-delict as the basis and no longer
when the accused is acquitted based on an the delict.
exempting circumstance. But when the accused is
acquitted on the ground that the act or omission These are the complicated portion of this rule.
from which the civil liability may arise did not As a matter of fact, there are queer cases decided
exist, that is the end of the civil liability arising by the SC even before the new rules like the 1987
from a crime. case of

Q: However, if I file an action based on quasi- RUFO MAURICIO

delict, can it prosper? CONSTRUCTION vs. IAC
A: YES, because it is now established that the November 27, 1987
action based on delict is extinguished but not on
quasi-delict, a contract, or other sources of FACTS: A driver of the
obligation. This is the ruling in the case of Bayotas construction company collided with a
in criminal law that, for example, once the car, killing the owner. What was filed
accused dies, the civil liability arising from crime was a criminal case against the driver.
is already extinguished but you can still file a case No reservation was made. Therefore
against the estate of the deceased accused provided the civil liability arising from the crime
you can find another source of the obligation. is already instituted. The driver was
This ruling was emphasized in the 1998 case of convicted. On appeal, the driver died.

ISSUE: What will happen to the

SALAO vs. COURT OF APPEALS civil liability arising from the crime?
284 SCRA 493, January 22, 1998 Can you enforce it against the
employer based on Article 103, RPC
HELD: The civil liability referred on subsidiary liability?
to in this Rule is the civil liability
arising from crime (ex delicto). It is not HELD: NO, because there was no
the civil liability for quasi-delict which judgment of conviction which became
is allowed to be brought separately final. There must be a judgment of
and independently of the criminal conviction against the employee; it
action by Art. 33 of the Civil Code. The must be final; he must be proven
civil liability based on such cause of insolvent. But the trouble is he died.
action is not extinguished even by a So you cannot enforce the subsidiary
declaration in the criminal case that liability of the employer.
the criminal act charged has not However, if this was quasi-delict,
happened or has not been committed you can file a direct action against he
by the accused. Indeed, because the employer because in quasi-delict, the
offended party does not intervene in liability of the employer is primary,
the criminal prosecution, it is entirely not subsidiary. The SC treated the case
possible that all the witnesses as an action for quasi-delict against the
presented in the civil action may not employer but that is unfair for the
have been presented by the public employer because he never
prosecutor in the criminal action with participated in the trial of the civil
the result that the accused in the case. According to the SC, we will put
criminal case may be acquitted. it back and now you will cross-
examine them (Dean I: Anong klaseng
procedure ito?!). This is what the SC
So remember ha, in the case of Salao the said:
offended party has no intervention in the criminal
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 46

The death of the accused during act or omission charged in

the pendency of his appeal or before the criminal action. (3a)
the judgment of conviction became
final and executory extinguished his Lets go back to basic rules.
criminal liability but not his civil
liability should the liability or Q: Which takes precedence when there is
obligation arise not from a crime but reservation, the criminal or the civil action?
from a quasi-delict. The liability of the A: The criminal action takes precedence. The
employer here would not be filing of the criminal suspends the filing of the
subsidiary but solidary with his driver civil action. If the civil action is filed, the civil
unless said employer can prove there action is deemed suspended unless there would
was no negligence on his part at all, be consolidation.
that is, if he can prove due diligence in
the selection and supervision of his Now, the rule about the filing of the criminal
driver. action will suspend the filing of the civil action,
Inasmuch as the employer was and the rule about the subsequent filing of the
not a party in the criminal case, and to criminal action will suspend the trial of the civil
grant him his day in court for the case, however, DOES NOT apply if the civil
purpose of cross-examining the action is classified as an independent civil action
prosecution witnesses on their under Section 3. This is another important
testimonies on the driver's alleged provision.
negligence and the amount of
damages to which the heirs of the Q: What are the independent civil actions
victim are entitled, as well as to under the law?
introduce any evidence or witnesses A: They are those covered by Articles 32, 33,
he may care to present in his defense, 34, and 2176 of the New Civil Code.
the hearing on the motion to quash the
subsidiary writ of execution must be Take note that you have to know what is
reopened precisely for the purpose Article 32, 33, 34, 2176. It is not enough that you
adverted to hereinabove. memorize the articles. What is Article 32 all
about? What kind of civil action is referred
This is the only instance I knew that the thereto? Or what is the civil action referred to in
criminal case against a driver ended up as a case Article 34? I think nandito yung when the civil
for quasi-delict against the employer. In other action is based on a violation of a constitutional
words, sh-in-ort-cut-short-cut ng SC yung right. Article 33 is the most famous when the
procedure eh! civil action is defamation, fraud and physical

SEC. 3. When civil Here (Section 3), the criminal action and the
action may proceed civil action can be filed simultaneously and the
independently. In the trial of the two cases can go on separately and
cases provided in Articles independently of the other without regard to the
32, 33, 34 and 2176 of the latter. Unlike when the civil action is not
Civil Code of the classified as independent, where it is governed by
Philippines, the
Section 2, it will be suspended in the meantime.
independent civil action
may be brought by the That is the important point to remember in this
offended party. It shall rule.
proceed independently of
the criminal action and
shall require only a COJUANGCO, JR. vs. COURT OF APPEALS
preponderance of evidence. 203 SCRA 629
In no case, however, may
the offended party recover FACTS: In this case, there was an
damages twice for the same independent civil action for recovery
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 47

of civil liability arising from action for damages arising therefrom

defamation filed by Cojuangco against must be filed in the same court.
a media company. So there were two In other words, if there is a second
(2) cases a criminal action for libel reason why consolidation should be
under the RPC and a civil case for allowed, that reason is Article 360 of
damages arising from defamation the RPC on libel. While there maybe 2
under Article 33 of the Civil Code. The separate actions in libel damages and
question is: can the two cases be criminal case Article 360 orders the
consolidated under Section 2? consolidation of the two. That is
because one argument is you only mandated under Article 360.
consolidate the civil action if it is not
independent action. But anyway, The next question is: Suppose I will file an
independent man ito why will independent civil action, do I have to make a
consolidate? reservation? The civil action specified is an
independent one. Take note that under Section 1,
ISSUE: May a civil action for when you file a criminal case without making a
damages arising from defamation reservation, the civil action is already deemed
(independent civil action) and the instituted unless you make a reservation.
criminal case for libel be consolidated?
There were some confusions on that point
HELD: YES, they can be because in the old cases of GARCIA VS. FLORIDO
consolidated under Rule 31 of the (52 SCRA), ABELLANA VS. MARABE (57 SCRA),
Rules of Court, citing again the case of the SC implied that when the civil action is
Caos vs. Peralta, because there is a independent, there is no need to make a
common question of law and fact. reservation. That is an implication because it is
Section 1, Rule 31 of the Rules of independent why should its filing be dependent
Court authorizes consolidation of on reservation?
actions involving common questions
of law or fact pending before the court. However, the 1985 Rules on criminal
The purpose or object of consolidation procedure made reservation mandatory even in
is to avoid multiplicity of suits, guard independent civil actions. Section 3 of the 1985
against oppression or abuse, prevent Rules says, in the cases provided in Articles 32,
delay, clear congested dockets, 33, 34 and 2176 of the Civil Code, the
simplify the work of the trial court, independent civil action which has been reserved
and save unnecessary costs or may be brought by the offended party, shall
expense; in short, the attainment of proceed independently. So in the instructive
justice with the least expense and case of MANIAGO VS. CA, (253 SCRA 674) as
vexation to the parties litigants. This well as the case of SAN ILDEFONSO VS. CA, (289
provision applies to both civil and SCRA 568), the SC ruled that there is still a need,
criminal actions. The case Caos had whether a civil action is independent or not, to
removed any doubt on this point. [So make a reservation, otherwise the civil action is
even if we disregard Rule 111 Section deemed instituted.
2, it can be consolidated under Rule
31] NOW, you will notice in Section 3 of the new
There is yet a further rules, that phrase which has been reserved is
consideration why in the instant case deleted. So based on the language of the new
consolidation of civil case and the rules, babalik na naman tayo sa FLORIDO and
criminal case should be allowed. What MARABE ruling, that an independent civil action
is involved is the crime of libel. As NEED NOT BE RESERVED. Therefore, the ruling
correctly stated by petitioners, per the in the MANIAGO and SAN ILDEFONSO cases is
third paragraph of Article 360 of the deemed abandoned by the SC.
Revised Penal Code, as amended, the
criminal case for libel and the civil
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 48

SEC. 4. Effect of death pendency of the criminal action shall extinguish

on civil actions. The the civil liability arising from the delict the civil
death of the accused after liability arising from the crime is deemed
arraignment and during the extinguished which you have taken up already in
pendency of the criminal
criminal law. However, the independent civil
action shall extinguish
the civil liability action instituted under Section 3 of this Rule or
arising from the delict. which thereafter is instituted to enforce liability
However, the independent arising from other sources meaning, another
civil action instituted source other than the delict may be continued
under section 3 of this against the estate or legal representative of the
Rule or which thereafter accused after proper substitution as the case may
is instituted to enforce be.
liability arising from
other sources of Balik na naman tayo sa civil procedure nito.
obligation may be
The action survives there will be substitution.
continued against the
estate or legal This is actually a repetition of civil procedure
representative of the the heirs of the accused maybe substituted for the
accused after proper deceased without requiring the appointment of an
substitution or against executor or administrator and the court may appoint a
said estate, as the case guardian That is a repetition of Rule 3, about
may be. The heirs of the substitution of a party. But the civil action here
accused may be substituted refers to a civil action where the source of a claim
for the deceased without is not a crime, wala na eh, extinguished na kaya it
requiring the appointment could be a contract or a quasi-delict.
of an executor or
administrator and the
Q: On the third paragraph, assuming there is
court may appoint a
a judgment. How will you enforce it? By
guardian ad litem for the
minor heirs. execution?
The court shall A: NO. You must file it as a claim against he
forthwith order said legal estate. As a rule, there is no execution. All the
representative or creditors mush share equally with the assets. That
representatives to appear is Special Proceedings: what claims must be filed
and be substituted within against the estate of the deceased?
a period of thirty (30)
days from notice. Q: Last paragraph. In case before
A final judgment arraignment, namatay wala na! the criminal
entered in favor of the
liability is extinguished. What happens now to
offended party shall be
enforced in the manner any possible civil action which the offended party
especially provided in may file?
these rules for A: He can file it against the estate of the
prosecuting claims against deceased but the assumption is, it is based on
the estate of the quasi-delict or any other sources of obligation
deceased. other than the crime.
If the accused dies
before arraignment, the
case shall be dismissed SEC. 5. Judgment in
without prejudice to any civil action not a bar.
civil action the offended A final judgment rendered
party may file against the in a civil action
estate of the deceased. absolving the defendant
(n) from civil liability is
not a bar to a criminal
Section 4 is entirely new. The first sentence is action against the
enunciated in the case of Bayotas the death of defendant for the same act
the accused after arraignment and during the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 49

or omission subject of the The concept of prejudicial question is the exact

civil action. (4a) opposite of Section 2 because in Section 2, unless
independent civil action, the filing of the criminal
Section 5 is the exact opposite of Section 2 action will cause the suspension of the civil
because the last paragraph of Section 2 says the action. Ito naman, baliktad the filing of the civil
extinction of the penal action does not carry with case will suspend the criminal case that is, if
it the extinction of the civil action. Itong Section there is a prejudicial question involved in the civil
5 naman, baliktad! the extinction of civil action. case.
Is the criminal action also extinguished? NO. A
final judgment rendered in a civil action Q: What is a prejudicial question?
absolving the defendant from civil liability is not A: A prejudicial question is that arising in the
a bar to a criminal action against the defendant. civil case but which is so intimately connected
with the issues involved in the criminal case as to
Now, what is new here is the last clause for be determinative of the innocence or guilt of the
the same act or omission subject of the civil accused. (Mendiola vs. Macadaeg, February 27,
action because for all you know, the evidence 1961)
submitted in civil case might be incomplete and
the government has better evidence in the So the resolution of the civil action will
criminal action. determine the guilt or innocence of the accused in
the criminal case. The guilt or innocence of the
accused will depend on the outcome of the issue
SEC 6. Suspension by in the civil case kaya paunahin natin ang civil.
reason of prejudicial
question. A petition for
Q: How do you determine whether a question
suspension of the criminal
action based upon the is prejudicial?
pendency of a prejudicial A: The elements of a prejudicial question are
question in a civil action found in Section 7:
may be filed in the office 1. the previously instituted civil action
of the prosecutor or the involves an issue similar or intimately
court conducting the related to the issue raised in the
preliminary investigation. subsequent criminal action, and
When the criminal action 2. the resolution of such issue determines
has been filed in court whether or not the criminal action
for trial, the petition to
may proceed.
suspend shall be filed in
the same criminal action
at any time before the Q: What will happen to the criminal case filed
prosecution rests. (6a) in the court?
A: It will be suspended. The accused will have
SEC. 7. Elements of to file a motion for the suspension of the
prejudicial question. proceeding.
The elements of a
prejudicial questions are: For example, Rod is accused of bigamy for
(a) the previously marrying twice. However, there is a civil case also
instituted civil action pending where the issue is whether his first
involves an issue similar
marriage is valid or not. Kung valid yon, patay
or intimately related to
the issue raised in the ka! bigamy! Kung void naman yun, there is no
subsequent criminal bigamy.
action, and (b) the
resolution of such issue
determines whether or not
the criminal action may
proceed. (5a) 94 Phil. 357
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 50

FACTS: Pches contracted a second determine whether the forcible abduction case
marriage with Cholo, a married man. will proceed to the SC?
The latter subsequently married Thea, RULING: According to the CA, YES because
the second girl. Cholo was prosecuted of this argument: suppose it is proven that the
for bigamy. Thea, the second wife filed marriage between the Kenneth and the Hannah is
an action to declare her marriage as null and void, therefore, the criminal liability of
defective because of the force Kenneth for forcible abduction with rape cannot
employed against her by Cholo. And, be extinguished because the marriage is a false
even if his first marriage is not valid, one. However, if it turned out that the marriage is
sabi niya (Thea), yung akin ay really valid, then the criminal case for abduction
voidable pa rin because my consent will definitely be extinguished.
was secured through force or
intimidation. CASE: This one is squatting. Andr was
Sabi naman ni Cholo, kung ganun, accused under the anti-squatting law for
it is prejudicial. We will have to wait occupying the property of Eumir. In another civil
for the result of that case filed by the case, the issue is ownership of the same property
second wife (Thea) whether really I between Andr and Eumir. They are quarreling
used force or intimidation to get her as to who is really the owner. Here, kailangan
consent. So the case of bigamy should muna matulog ang criminal case. Depende yan
not be tried. kasi kung sinong manalo sa civil case. How can
you be a squatter if it turns out that you are the
HELD: Cholo is wrong because it owner of property. So it is considered as
was him, who is accused of bigamy, prejudicial question.
who employed the force. Cholo cannot
use his own malfeasance to defeat the The last point to consider here:
action based on the criminal act. Ikaw
and nag-gawa ng force tapos you use Q: Can you raise a prejudicial question as a
the force to suspend the criminal case? ground to suspend the preliminary investigation
Di puwede yan! There is something before the fiscals office? Or, does the issue of
wrong in that situation. prejudicial question only applicable when the
case reaches the court?
A: Prejudicial question can be raised as a
But assuming it is Thea who is accused of ground to suspend a preliminary investigation.
bigamy for contracting a second marriage with Section 6 says, a petition for suspension of the
the man. And the woman says, It is true pero criminal action based upon the pendency of a
pinilit niya ako. Ayoko man ba! So she filed an prejudicial question in a civil action may be filed
action to declare the second marriage defective on in the office of the prosecutor or the court
the ground of vitiated consent. Ayan! Prejudicial conducting the preliminary investigation.
yan because she is the victim [of force and
intimidation]. Really, if her second marriage was Of course, when the criminal action has been
obtained without her consent, how can she be filed in court, the petition for suspension must be
guilty of bigamy? Yan! Pwede yan! filed in the same criminal action.

CASE: (decided by Court of Appeals) A The first case where the SC said that
criminal case was filed against Kenneth for prejudicial question can be raised even in the
forcible abduction with rape. While the criminal preliminary investigation was first laid down in
case was pending, there was a supposed marriage the 1940 case of DE LEON VS. MABANAG (72
between him and his victim (Hannah) para ma- Phil. 202).
extinguish ang criminal liability ni Kenneth. But
Hannah filed a case to declare the marriage as However in 1962, the SC had a change of
null and void. Question: Will the pendency of the mind in the case of DASALLA VS. CITY
civil case for nullity of marriage filed by Hannah ATTORNEY, (5 SCRA 193) where the SC said, the
be considered as prejudicial question to suspension on the ground of prejudicial question
only applies when the case is already in court but
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 51

not where the case is still under preliminary and the respondent is probably
guilty thereof, and should be
investigation. The ruling in Mabanag is held for trial.
abandoned. The Dasalla ruling was reiterated in Except as provided in
the case of FALGUI VS. PROVINCIAL FISCAL OF section 7 of this Rule, a
preliminary investigation is
PAMPANGA, 62 SCRA 462. required to be conducted before
the filing of a compliant or
However, when the 1985 rules were enacted, information for an offense
where the penalty prescribed by
you will notice in Section 6 that the issue of law is at least four (4) years,
prejudicial question may be raised in the office of two (2) months and one (1) day
the prosecutor or the judge conducting the without regard to the fine.
preliminary investigation. That means the
resurrection of the Mabanag ruling in 1940 and the
Alright. We will now go to Preliminary
abandonment of the subsequent cases of Dasalla
Investigation. This is one of the features of the
and Falgui, Jr. So binalik nila ang Mabanag.
inquisitorial system of criminal procedure. The
government is the boss. The purpose is for
determining whether there is probable cause, not
guilt or innocence of the accused, because what is
probable cause to you may not be probable cause
sa akin. That is why you can see the fiscal as a
very powerful person in the government. He
could say that there is probable case or there is
none. Depende kung anong gusto niya.

So, the government through the investigating

officer will decide whether there is a case or no
case. He will first conduct an investigation and if
he believes that there is a probable cause, then he
will prepare a resolution recommending to this
superior that the respondent be indicted in court.

The purpose of preliminary investigation is to

secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from
an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and
also to protect the state from useless and
expensive trials. (Marcos vs. Cruz, 68 Phil. 96;
Hashim vs. Boncan, 71 Phil. 216)

Q: Is Preliminary Investigation required in all

criminal cases?
A: Under the new rules, it is required when
the crime for which the respondent is charged
Rule 112 carries a penalty of at least four (4) years, two (2)
PRELIMINARY months, and one (1) day.
Q: What happen if a case is filed in court
SECTION 1. Preliminary without preliminary investigation? Can the
investigation defined; when accused file a motion to quash the information on
required. Preliminary
investigation is an inquiry or
the ground of absence of a preliminary
proceeding to determine whether investigation?
there is sufficient ground to A: Of course there is no question that there is
engender a well-founded belief
that a crime has been committed a denial of a right. However, if there is an
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 52

irregularity, that is not a ground for dismissal. An 1018), the SC said that the prosecution, as an
information cannot be dismissed because there exception, may be compelled by mandamus if he
was no preliminary investigation. The procedure abuses his discretion and refuses to include a
is for the court to suspend the proceedings and person as a co-accused against whom there
refer the matter back to the proper officer for appears to be at least a prima facie evidence. That
preliminary investigation (People vs. Oliveria, 67 is grave abuse of discretion. However, this
Phil. 427; People vs. Manlapas, L-17993, August extraordinary writ is available only if the petition
24, 1962) shows that he has first exhausted all remedies in
the ordinary course of law such as a motion filed
Q: Who has the discretion whether to with the trial court for the indictment of the
prosecute or not to prosecute? person or persons excluded by the prosecutor.
A: The public prosecutor. That is why he is a
powerful officer. He exercises quasi-judicial
function because he is the one to determine
whether to file a case against you or not. He has
November 9, 1993
the authority to file or the authority to dismiss.
HELD: The decision of the
Q: Can the discretion of a public prosecutor
prosecutor may be reversed or
be controlled? Can you file a petition for
modified by the Secretary of Justice or
mandamus to compel a public prosecutor to file a
in special cases by the President of the
Philippines. But even this Court
A: General Rule: The public prosecutor cannot
cannot order the prosecution of a
be compelled by mandamus to prosecute a case
person against whom the prosecutor
because it is discretionary eh! Maybe you can
does not find sufficient evidence to
prove grave abuse of discretion. Maybe the
support at least a prima facie case. The
probable cause is very, very clear or obvious, then
courts try and absolve or convict the
ayaw pa nyang i-file, ayan na!
accused but as a rule have no part in
the initial decision to prosecute him.
Q: What are the remedies of the offended
The possible exception is where
party if a fiscal refuses to file a case even when
there is an unmistakable showing of a
there is a sufficient evidence n which action may
grave abuse of discretion that will
be taken?
justify judicial intrusion into the
A: There are three (3) possible remedies:
precincts of the executive. But in such
1. He may take up the matter
a case the proper remedy to call for
with the Secretary of the Justice
such exception is a petition for
who may then take such
mandamus, not certiorari or
measures as may be necessary
in the interest of justice; or to
his superior officer, the
Lets go back in the case of
Regional State Prosecutor;
2. He may also file with the TEEHANKEE JR. vs. MADAYAG
proper authorities or court March 6, 1992
criminal or administrative
charges against the fiscal. That FACTS: Here, Claudio Teehankee,
is what you call prevericacion in Jr. was originally charged for the
the Revised Penal Code; crime of frustrated murder for
3. He may file a civil action for shooting Hultman na na-comatose for
damages under Article 27, how many months. In the course of
New Civil Code. the trial, Hultman died. The
prosecution sought to change the
There are other cases where the Supreme information from frustrated murder to
Court (SC) commented on this aspect about the consummated murder. Teehankee Jr.
quasi-judicial power of the public prosecutor. In questioned the new charge for lack of
the case of GUIAO VS. FIGUEROA (94 Phil. preliminary investigation thereon .
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 53

There are three (3) questions to be So you are not prejudiced because
answered here: the same defense available to you is
still available to you now.
ISSUE #1: Was there an amendment
of the information or substitution when ISSUE #3: Is there a need of a
the information was changed from preliminary investigation on the new
frustrated murder to consummated charge?
murder? HELD: No need because you have
HELD: There is an amendment. not changed the crime. If you change
There is an identity of offenses the crime or when there is
charged in both the original and the substitution, kailangan ng preliminary
amended information [murder pa investigation. Since it is only a formal
rin!]. What is involved here is not a amendment, preliminary investigation
variance of the nature of different is unnecessary. The amended
offenses charge, but only a change in information could not conceivably
the stage of execution of the same have come as a surprise to petitioner
offense from frustrated to for the simple and obvious reason that
consummated murder. This being the it charges essentially the same offense
case, we hold that an amendment of as that charged under the original
the original information will suffice information. Furthermore, as we have
and, consequent thereto, the filing of heretofore held, if the crime originally
the amended information for murder charged is related to the amended
is proper. charge such that an inquiry into one
would elicit substantially the same
ISSUE #2: What kind of facts that an inquiry into the other
amendment? Formal or substantial? would reveal, a new preliminary
HELD: Formal. An objective investigation is not necessary.
appraisal of the amended information
for murder filed against herein
petitioner will readily show that the SEC. 2. Officers authorized
to conduct preliminary
nature of the offense originally investigations. The following
charged was not actually changed. may conduct preliminary
Instead, an additional allegation, that investigations:
(a) Provincial or City
is, the supervening fact of the death of Prosecutors and their
the victim was merely supplied to aid assistants;
the trial court in determining the (b) Judges of the Municipal
Trial Courts and Municipal
proper penalty for the crime [So it is Circuit Trial Courts;
still murder.]. That the accused (c) National and Regional
committed a felonious act with intent State Prosecutors; and
(d) Other officers as may be
to kill the victim continues to be the authorized by law.
prosecution's theory. There is no Their authority to conduct
question that whatever defense herein preliminary investigations
shall include all crimes
petitioner may adduce under the cognizable by the proper court
original information for frustrated in their respective territorial
murder equally applies to the jurisdictions. (2a)

amended information for murder.

So halimbawa sabihin ng Q: Going back to Rule 110, Section 1, how is a
prosecutor: You shot Hultman who criminal action instituted?
almost died. Teehankee Jr.: Wala man A: Read Section 1, Rule 110:
ako dun ba! I was at home asleep! Alibi
SECTION 1. Institution of
ang defense niya ba. Now, namatay si criminal actions. Criminal
Hultman. Ano man ang depensa mo? actions shall be instituted as
Mau man gihapon: Wala man ako follows:
(a) For offenses where a
dun! preliminary investigation is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 54

required pursuant to section 1 SEC. 3. Procedure. The

of Rule 112, by filing the preliminary investigation shall
complaint with the proper be conducted in the following
officer for the purpose of manner:
conducting the requisite (a) The complaint shall
preliminary investigation. state the address of the
respondent and shall be
accompanied by the affidavits
of the complainant and his
Q: Who are those proper officers? witnesses, as well as other
A: They are the officers authorized to conduct supporting documents to
preliminary investigation and they are establish probable cause. They
shall be in such number of
mentioned in Section 2: copies as there are
1. Provincial, city prosecutors and their respondents, plus two (2)
copies for the official file.
The affidavits shall be
2. Judges of the MTC, MCTC; subscribed and sworn to before
3. Other officers as may be authorized by any prosecutor or government
official authorized to
law to conduct preliminary administer oath, or, in their
investigation. absence or unavailability,
before a notary public, each of
whom must certify that he
An example of Other officers as may be
personally examined the
authorized by law to conduct preliminary affiants and that he is
investigation is the Ombudsman. In the case of satisfied that they voluntarily
UY VS. SANDIGANBAYAN (312 SCRA 77 executed and understood their
[August 9, 1999]), the Ombudsman and his (b) Within ten (10) days
deputies are only authorized to conduct after the filing of the
complaint, the investigating
preliminary investigation of public officers in
officer shall either dismiss it
cases which are falling within the original if he finds no ground to
jurisdiction of the Sandiganbayan (SB).So even if continue with the
investigation, or issue a
the crime is a violation of the Anti-Graft law, or a subpoena to the respondent
crime committed by a public officer in relation to attaching to it a copy of the
his office, if he is below Grade 27, the proper complaint and its supporting
affidavits and documents.
court is not the SB, but the MTC or RTC. Before The respondent shall have
kasi, the original SC interpretation of the the right to examine the
Ombudsman law as laid down in the first case of evidence submitted by the
complainant which he may not
DELOSO VS. DOMINGO (November 21, 1990), is have been furnished and to copy
that, all crimes committed by public officers them at his expense. If the
should be investigated by the Ombudsman. evidence is voluminous, the
complainant may be required to
specify those which he intends
HOWEVER, Ombudsman Desierto filed a to present against the
Motion for Further Clarification in the SC in respondent, and these shall be
made available for examination
relation to the case of UY where I think the or copying by the respondent at
Ombudsman is trying to convince the SC to his expense.
change its mind because it is practically making Objects as evidence need not
be furnished a party but shall
that office a useless office. Now, SC resolved to be made available for
consider the same. Therefore the ruling in UY is examination, copying, or
reversed in a SC resolution (dated March 20, 2001 photographing at the expense of
the requesting party.
[G.R. 105965-70]) where the SC went back to its (c) Within ten (10) days
original ruling that the Ombudsman is from receipt of the subpoena
authorized to conduct preliminary investigation with the complaint and
supporting affidavits and
and to prosecute all criminal cases involving documents, the respondent shall
public officers and employees, not only those submit his counter-affidavit
within the jurisdiction of the Sandiganbayan, but and that of his witnesses and
other supporting documents
those within the jurisdiction of the regular courts relied upon for his defense.
as well. So take note of that. The counter-affidavits shall be
subscribed and sworn to and
certified as provided in
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 55

paragraph (a) of this section, the ten (10) day period, the
with copies thereof furnished
by him to the complainant. The investigating office shall resolve the
respondent shall not be allowed complaint based on the evidence
to file a motion to dismiss in presented by the complainant.
lieu of a counter-affidavit.
(d) If the respondent cannot 4. paragraph [e]. What is new is the 2nd
be subpoenaed, or if paragraph, the hearing shall be held
subpoenaed, does not submit within 10 days Actually here, tapos
counter-affidavits within the
ten (10) day period, the na ang affi-affidavits. But if you want
investigating office shall to clarify something, you can call the
resolve the complaint based on witnesses for clarificatory questioning,
the evidence presented by the
complainant. pero he has a deadline to do it 10
(e) The investigating days.
officer may set a hearing if
there are facts and issues to
be clarified from a party or a In the case of
witness. The parties can be
present at the hearing but TATAD vs. SANDIGANBAYAN
without the right to examine or 159 SCRA 70, March 21, 1988
cross-examine. They may,
however, submit to the
investigating officer questions FACTS: The preliminary
which may be asked to the party investigation lasted for 3 years. So
or witness concerned.
The hearing shall be held Tatad questioned the information.
within ten (10) days from
submission of the counter-
ISSUE #1: Is the 10-day period to
affidavits and other documents
or from the expiration of the issue a resolution mandatory or
period for their submission. It directory?
shall be terminated within five
(5) days.
HELD: The 10-day period fixed
(f) Within ten (10) days by law is merely directory, yet, on
after the investigation, the the other hand, it can not be
investigating officer shall
determine whether or not there
disregarded or ignored completely,
is sufficient ground to hold with absolute impunity. It certainly
the respondent for trial. (3a) can not be assumed that the law has
included a provision that is
deliberately intended to become
Q: What is the procedure for Preliminary meaningless and to be treated as a
Investigation? dead letter. So all of the information
A: You read Section 3 step by step. Actually filed must be dismissed for violation
its a battle of affidavits eh. It is the same as the of the right for speedy trial.
old rules. Anyway Ill just mention the changes
no: ISSUE #2: The government
1. In 2nd paragraph of [b] The contended that a total lack of
respondent shall have the right to preliminary investigation is not a
examine the evidence submitted by ground for dismissing an information,
the complainant which he may not how come the delay in terminating a
have been furnished and to copy them preliminary investigation becomes
at his expense. now a ground for dismissal?
2. paragraph [c]. What is new here is the HELD: It has been suggested that
last sentence The respondent shall the long delay in terminating the
not be allowed to file a motion to preliminary investigation should not
dismiss in lieu of a counter-affidavit. be deemed fatal, for even the complete
So you can file your counter-affidavit. absence of a preliminary investigation
Do not file a motion to dismiss; does not warrant dismissal of the
3. [d] If the respondent cannot be information. True but the absence
subpoenaed, or if subpoenaed, does of a preliminary investigation can be
not submit counter-affidavits within corrected by giving the accused such
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 56

investigation. But an undue delay in

the conduct of a preliminary
investigation can not be corrected, for SOCRATES vs. SANDIGANBAYAN
until now, man has not yet invented a 253 SCRA 773, February 20, 1996
device for setting back time.
NOTE: I think Socrates was a
governor of Palawan. He was also
facing cases in the Sandiganbayan
SANTIAGO vs. GARCHITORENA where he invoked the Tatad ruling.
December 2, 1993 HELD: In the application of the
constitutional guaranty of the right to
FACTS: Anti-graft charges were speedy disposition of cases, particular
filed against Miriam Defensor- regard must also be taken of the facts
Santiago when she was still the and circumstances peculiar to each
Immigration Commissioner. Santiago case. It is palpably clear that the
raised this issue (on delay) because application of the Tatad doctrine
the offense was allegedly committed should not be made to rely solely on
on or about October 17, 1988 and the the length of time that has passed but
information was filed only on May 9, equal concern should likewise be
1991 or almost 3 years later. The accorded to the factual ambiance and
amended information was filed only considerations. It can easily be
on December 8, 1992 or 4 years later. deduced from a complete reading of
So following the Tatad ruling they the adjudicatory discourse in Tatad
shall be dismissed. that the three-year delay was
specifically considered vis-a-vis all the
HELD: [Santiago] cannot facts and circumstances which
complain that her constitutional rights obtained therein.
to due process were violated by reason
of the delay in the termination of the So you just dont consider the time element.
preliminary investigation. Tatad v. You must also consider the facts. Panahon ni
Sandiganbayan, 159 SCRA 70 [1988] is Marcos yung kay Tatad eh.
inapplicable to petitioner's case. In
Tatad, there indeed was an
unexplained inaction on the part of the SERVANTES vs.
public prosecutors inspite of the SANDIGANBAYAN
simplicity of the legal and factual 307 SCRA 149, May 18, 1999
issues involved therein. In the case at
bench, there was a continuum of the NOTE: The Tatad ruling was
investigatory process but it got snarled applied in this case.
because of the complexity of the issues FACTS: Here, Elpidio Servantes
involved. was charged for violation of Section
We note that [Santiago] had 3(e) of the Anti-Graft law. It took the
previously filed two petitions before special prosecutor six (6) years from
us involving 2 criminal cases. the filing of the initiatory complaint
Petitioner has not explained why she before he decided to file an
failed to raise the issue of the delay in information for the offense in the
the preliminary investigation and the Sandiganbayan. Servantes filed a
filing of the information against her in motion to quash for violation of the
those petitions. A piece-meal right to speedy disposition of the case.
presentation of issues, like the Special prosecutor tried to justify the
splitting of causes of action, is self- delay in the resolution of the
defeating. So it is like splitting your complaint by stating that no political
causes of action working against you. motivation appears in the prosecution
Yaan! of the case in apparent reference in the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 57

case of Tatad because in the case of officer shall either dismiss it

if he finds no ground to
Tatad there was political motivation continue with the
dun eh kaya na-delay. investigation, or issue a
Special Prosecutor: Servantes here subpoena to the respondent
attaching to it a copy of the
was insensitive to the implications and complaint and its supporting
contingencies thereof by not taking affidavits and documents.
any step whatsoever to accelerate the The respondent shall have
the right to examine the
disposition of the matter. Meaning, 6 evidence submitted by the
years anong ginawa mo? Hindi ka complainant which he may not
man nagreklamo! You did not file a have been furnished and to copy
them at his expense. If the
motion to hurry up. So you are evidence is voluminous, the
estopped. complainant may be required to
specify those which he intends
to present against the
HELD: We find Servantes respondent, and these shall be
contention meritorious. He was made available for examination
deprived of his right to speedy or copying by the respondent at
his expense.
disposition of the case, a right Objects as evidence need not
guaranteed by the Constitution. We be furnished a party but shall
cannot accept special prosecutors be made available for
examination, copying, or
ratiocination. It is the duty of the photographing at the expense of
prosecutor to speedily resolve the the requesting party.
complaint as mandated by the
Constitution regardless of whether There is no mention that after the counter-
Servantes did not object to the delay affidavit, the complainant can also file a reply-
although the delay was with his affidavit. There is nothing which says that it
acquiescence provided it was not due cannot be done, there is nothing which says that
to causes directly attributable to him. it can be done. Well, my position is, since it is not
So the mere fact that he was not prohibited, try it. Anyway wala mang bawal ba.
complaining is not a factor. What is
the factor is when the delay was Q: Going back to paragraph (b) when the
caused by him. Yaan! respondent is subpoenaed, he is supposed to file
his counter-affidavit. Paano kung di siya ma-
subpoena or even if subpoenaed he does not
I know a case decided here during the time of submit his counter-affidavit?
former deputy Ombudsman Delpacio(?) when he A: The investigating officer shall resolve the
was still here in Davao. For more than 4 years the complaint based on the evidence presented by the
preliminary investigation has not been complainant.
terminated. The respondent filed a mandamus
direct to the SC to compel the dismissal of his
case citing Tatad case. With this mandamus, the MERCADO vs. COURT OF APPEALS
SC required the Ombudsman to comment. So July 5, 1995
what the Ombudsman did, pinaspasan niya! So
he came out with a resolution immediately a HELD: The New Rules on
resolution to file. Then he answered the SC: I Criminal Procedure does not require
already terminated the preliminary investigation in as a condition sine qua non to the
fact there is now a resolution to file. Cured na! There is validity of the proceedings [in the
no more delay. Sabi ng SC: Hindi na puwede yan! preliminary investigation] the
i-dismiss mo na! presence of the accused for as long as
efforts to reach him were made, and
an opportunity to controvert the
Lets go back to paragraph [b]: evidence of the complainant is
accorded him. The obvious purpose of
(b) Within ten (10) days the rule is to block attempts of offenses
after the filing of the
complaint, the investigating
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 58

by hiding themselves or by employing Department of Justice may

prescribe or motu propio, the
dilatory tactics." Secretary of Justice reverses
or modifies the resolution of
the provincial or city
SEC. 4. Resolution of prosecutor or chief state
investigating prosecutor and prosecutor, he shall direct the
its review. If the prosecutor concerned either to
investigating prosecutor finds file the corresponding
cause to hold the respondent information without conducting
for trial, he shall prepare the anther preliminary
resolution and information. He investigation, or to dismiss or
shall certify under oath in- move for dismissal of the
the information that he, or as complaint or information with
shown by the record, an notice to the parties. The same
authorized officer, has rule shall apply in preliminary
personally examined the investigations conducted by the
complainant and his witnesses; officers of the Office of the
that there is reasonable ground Ombudsman. (4a)
to believe that a crime has
been committed and that the
accused is probably guilty
thereof; that the accused was The investigating prosecutor after the
informed of the complaint and preliminary investigation will now issue a
of the evidence submitted resolution to be approved by his superior
against him; and that he was
given an opportunity to submit recommending the filing or dismissal of the case.
controverting evidence. If he finds probable cause to hold the respondent
Otherwise, he shall recommend for trial, he shall prepare the resolution and
the dismissal of the complaint.
Within five (5) days from information and he will certify under oath that
his resolution, he shall he, or as shown by the record, an authorized
forward the record of the case officer, has personally examined the complainant
to the provincial or city
prosecutor or chief state and his witnesses that there is a reasonable
prosecutor, or to the Ombudsman ground to believe that a crime has been
or his deputy in cases of committed that the accused is probably guilty
offenses cognizable by the
Sandiganbayan in the exercise thereof, that the accused was informed of the
of its original jurisdiction. complaints and of the evidence submitted against
They shall act on the him and that he was given opportunity to submit
resolution within ten (10) days
from their receipt thereof and controverting evidence. That is a standard form
shall immediately inform the in the information filed by the prosecutor.
parties of such action.
No complaint or information
may be filed or dismissed by an Q: Suppose the prosecutor failed to make that
investigating prosecutor certification in the information, is the information
without the prior written
valid or defective?
authority or approval of the
provincial or city prosecutor A: It is still VALID. Notwithstanding the
or chief state prosecutor or absence in the information of a certification as to
the Ombudsman or his deputy.
Where the investigating
the holding of a preliminary investigation, the
prosecutor recommends the information is nonetheless considered valid for
dismissal of the complaint but the reason that such certification is not an
his recommendation is
disapproved by the provincial
essential part of the information itself and its
or city prosecutor or chief absence cannot vitiate it as such. (Alvizo vs.
state prosecutor or the Sandiganbayan, 220 SCRA 45)
Ombudsman or his deputy on the
ground that a probable cause
exists, the latter may, by Q: After that, what will he do? To whom will
himself, file the information he forward his resolution?
against the respondent, or
direct another assistant
A: To the provincial or city prosecutor or chief
prosecutor or state prosecutor state prosecutor depending on who is conducting
to do so without conducting the preliminary investigation;
another preliminary
If upon petition by a proper Q: Is the resolution of the prosecutor
party under such rules as the appealable?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 59

A: YES. It is appealable to the Secretary of according to DOJ my superior and the Secretary
Justice. The last paragraph of Section 4 gives the of Justice has ordered me to move for the
power of review to the Department of Justice dismissal of the case. Eh kung sabihin ng court:
that is, if the case originally started in the Fiscals
office. COURT: Ayoko! Tuloy ang kaso!
[ay naloko na!!]
The DOJ can reverse or modify resolution of a FISCAL: Sorry Your Honor but that is
city or provincial prosecutor and the procedure the order of my superior. I cannot go
for review is governed not by the Rules of Court, against the DOJ.
but by a department order. There is also a COURT: Superior mo, hindi akin! It
procedure there for appeal or review by the DOJ is not my superior! Ituloy ang kaso!
(2000 DOJ Rules on Appeal, July 3, 2000).

One of the cases we have to remember here is Yaan!! That was the issue in the case of
the leading case of CRESPO VS. MOGUL, (June CRESPO. And the SC ruled that:
30, 1987). Here are some points discussed in this
case: CRESPO vs. MOGUL
June 30, 1987
Q: What happens if the DOJ sustains the
appeal? HELD: The power of the fiscal is
A: It will reverse the resolution of the practically absolute whether to file or
prosecutor. not to file. But once the case is filed in
court, the power now belongs to the
Example: judge and he is the one who will
PROSECUTOR: Dismiss! The case determine whether to proceed or not
should not be filed. to proceed. The court will be the one
DOJ: Reversed! You file the case. to decide because control over the case
is already shifted in the court. The
Walang magawa ang fiscal diyan. He must court now has the absolute power and
file the case because that is the order of his once the court tell the fiscal you
superior. What if: proceed, then the fiscal has to proceed.
The latter should not shirk from his
Example: responsibility of representing the
PROSECUTOR: There is probable People of the Philippines. So the
cause. I will file the case. absolute power of the fiscal ends upon
RESPONDENT/ACCUSED: the filing of the case in court.
Appeal! As an advise [advise lang, hindi
DOJ: I will reverse. You are hereby naman order], that in order to avoid
ordered not to file. this unpleasant situation where the
opinion o the Secretary of Justice is not
Q: E kung na-file na? to proceed but the opinion of the judge
A: Under the new rules, the fiscal is ordered is to proceed, and the fiscal is caught
to file a motion to dismiss the case in court. in the middle [naipit ba!], when the
case is already filed in court, as much
There is no problem if the resolution of the as possible huwag ka (DOJ) ng
fiscal is to dismiss and then ang DOJ order is to makialam. The Secretary of Justice as
file. Ang mahirap is if the resolution of the fiscal much as possible, should not review
is to file and na-file na, and then sabi ng DOJ, ah the resolution of the fiscal to file when
walang probable cause do not file! Prosecutor: the case is already filed in court to
Eh, na-file na? DOJ: Okey, you move to dismiss avoid this unpleasant situation
the case. because it will really cause a conflict of
opinion between the two (2) offices.
So the fiscal will file a motion to dismiss. His
argument will be, there is no probable cause
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 60

There are other cases where the SC elaborated Within thirty (30) days from
receipt of the records, the
on this but the leading case is CRESPO. I will just provincial or city prosecutor,
cite to you some of these cases where the SC had or the Ombudsman or his deputy,
something to comment about this issue as we as the case may be, shall
review the resolution of the
have no more time to go over them one by one: investigating judge on the
existence of probable cause.
1. REPUBLIC VS. SUNGA (162 Their ruling shall expressly
and clearly state the facts and
SCRA 191); the law on which it is based
2. MARCELO VS. CA (235 SCRA 39); and the parties shall be
3. PEOPLE VS. CRUZA (237 SCRA furnished with copies thereof.
They shall order the release of
410); an accused who is detained if
4. MARTINEZ VS. CA (237 SCRA no probable cause is found
575); against him. (5a)
(258 SCRA 473); Section 5 applies to preliminary investigations
6. LEDESMA VS. CA, 278 SCRA 658 conducted by MTC judges. Remember, aside
(September 5, 1997). from fiscal, MTC judges are also allowed to
conduct preliminary investigations. But in Metro
And based on some of these cases in relation Manila and chartered cities, MTCC judges do not
to reinvestigation, the SC held that once the case is conduct preliminary investigations everything
already in court and the accused would like to is given to the state prosecutor.
have his case reinvestigated, the court must
agree. There must always be the concern of the What happens if the judge or the MTC judge
court because of the absolute control is already in will conduct a preliminary investigation? The
the court once the case is filed. And take note that judge will conduct a preliminary investigation.
there is no double jeopardy in preliminary Ang kanya, there is a probable cause or there is
investigation. no probable cause, either way he must forward
his resolution to the provincial prosecutor. The
provincial prosecutor will be the one to decide.
SEC. 5. Resolution of
investigating judge and its Q: Do you mean to tell me the provincial
review. Within ten (10) days
after the preliminary prosecutor will conduct again another
investigation, the preliminary investigation?
investigating judge shall
transmit the resolution of the
A: NO. He will just review the findings of the
case to the provincial or city judge. Maybe the provincial fiscal will simply
prosecutor, or to the Ombudsman adop the finding of the MTC judge.
or his deputy incases of
offenses cognizable by the
Sandiganbayan in the exercise Q: Suppose sabi ng fiscal, Di ako kuntento. I
of its original jurisdiction, am not satisfied with the preliminary
for appropriate action. The
resolution shall state the
investigation by that judge. I will conduct another
findings of facts and the law preliminary investigation Puwede ba yan?
supporting his action, together A: YES. The provincial prosecutor has 100%
with the record of the case
which shall include: (a) the
control. He may adopt the finding and just follow
warrant, if the arrest is by the recommendation filed, or he may conduct his
virtue of a warrant; (b) the own preliminary investigation.
affidavits, counter-affidavits
and other supporting evidence
of the parties; (c) the Q: What happens if his decision is different
undertaking or bail of the from what the MTC judge believes? Whose
accused and the order for his
release; (d) the transcripts of decision will prevail?
the proceedings during the A: Fiscals decision will prevail. He can
preliminary investigation; and reverse the resolution of the MTC judge.
(e) the order of cancellation
of his bail bond, if the
resolution is for the dismissal And in case the respondent has been arrested
of the complaint. while the case is under preliminary investigation
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 61

and detained in jail, according to Section 5, last Incase of doubt on the

existence of probable cause,
paragraph, last sentence, the provincial fiscal the judge may order the
shall order the release of an accused who is prosecutor to present
detained if no probable cause is found against additional evidence within five
(5) days from notice and the
him. This is one instance where the opinion of the issue must be resolved by the
provincial prosecutor prevails over that of the court within thirty (30) days
judge. The fiscal can reverse the findings of the from the filing of the
complaint of information.
judge eh.
x x x x x x
Q: Bakit naman ganun? Why are we giving
the provincial fiscal more power than the MTC Let us picture what happens here. The case is
judge when it comes to preliminary triable by the RTC so this means, 6 years and 1
investigation? day up. Now, the fiscal conducts a preliminary
A: The reason is simple: who will prosecute investigation. Assuming after finding probable
the case the judge or the fiscal? Of course, it is cause, he will file information. After that, what
the fiscal. He will be the one to handle the case will happen? The judge may issue a warrant of
and not the judge. arrest to arrest the accused because in his opinion,
there is probable cause to issue the warrant of
Another reason is given by the SC in one case arrest. So that is the situation.
that actually, preliminary investigation is not
really the function of the judiciary. The power to So you will notice that this word probable
determine whether to file or not file does not cause has many functions. When the fiscal file
belong to the judiciary. When a preliminary the information, he believes that there was
investigation is conducted by a judge, the judge probable cause probable cause to file the case.
performs a non-judicial function, as an exception Pagdating sa court, the RTC judge will present
to his usual judicial duties. The assignment of probable cause na naman to issue warrant of arrest.
that function to judges of inferior courts and to a Iba yan eh! Kanya-kanya yan probable cause to
very limited extent to courts of first instance was file, probable cause to issue warrant. That is why in
dictated by necessity and practical considerations. the case of
Consequently, the findings of an investigating
judge are subject to review by the provincial CASTILLO vs. VILLALUZ
fiscal. (Castillo vs. Villaluz, March 8, 1989) March 8, 1989

Alright. Lets go to Section 6 a very HELD: The fiscal prevails over

important provision when warrant of arrest the judge only in the determination of
may be issued. the existence of a probable cause
justify the filing of a complaint or
SEC. 6. When warrant of information. This task is concededly
arrest may issue. (a) By the
Regional Trial Court. Within
executive. But the determination of
ten (10) days from the filing probable cause to justify the issuance
of the complaint or of a search warrant or a warrant of
information, the judge shall
personally evaluate the
arrest is the constitutional prerogative
resolution of the prosecutor of the judge and may not be
and its supporting evidence. He withdrawn from him or even only
may immediately dismiss the
case if the evidence on record limited by statute or the Rules of
clearly fails to establish Court. This task is undoubtedly
probable cause. If he finds judicial.
probable cause, he shall issue
a warrant of arrest, or a The findings of the fiscal in the
commitment order if the accused preliminary investigation do not
has already been arrested control or foreclose the exercise of the
pursuant to a warrant issued by
the judge who conducted the power conferred personally on the
preliminary investigation or judge under Section 2 of the Bill of
when the complaint or Rights. That power is his alone.
information was filed pursuant
to section 7 of this Rule.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 62

Q: Now, under the Constitution, before the

RTC judge issued the warrant of arrest because of ISSUE: May a Judge without
probable cause, anong dapat gawin niya? ascertaining the facts through his own
A: He must personally examine the complainant personal determination and relying
and his witnesses to determine whether there is solely on the certification or
probable cause to issue or not to issue a warrant recommendation of a prosecutor that a
of arrest. probable cause exists issue a warrant
of arrest?
How do you interpret the phrase, personally
examine? I have to admit that the cases before HELD: In order to clarify this rule
were somehow confusing. There were some case once and for all, the SC went over all
na literal pag-file mo ng kaso, the RTC judge the cases where this issue kept coming
has to call the complainants, tanong tanong back, starting from: US VS. OCAMPO
tanong to determine the probable cause to issue (18 Phil.); AMARGA VS. ABBAS (98
a warrant. Otherwise if I will not examine them, it Phil.); PLACER VS. VILLANUEVA
is unconstitutional for to issue a warrant. Or in (126 SCRA 463); SULTA VS. CA (143
another case, RTC judge: sabi ng fiscal, may SCRA 228); SOLIVEN VS. MAKASIAR
probable cause to file eh. Tama na yon! I believe (167 SCRA 393); CASTILLO VS.
him. I will now issue the warrant. But there are VILLALUZ (171 SCRA 39); PEOPLE
some cases that say na hindi puwede yan because VS. INTING (187 SCRA 798); to
you are giving now to the fiscal the right to PEOPLE VS. DELGADO (189 SCRA
determine your duty under the Constitution. You 725).
cannot do that because the law says you must This is the dilemma: if a Judge
personally examine. Otherwise, the fiscal is the one has to personally question each
who is determining. complainant and witness or go over
the records of the Prosecutor's
But meron namang mga kaso where the SC investigation page by page and word
said that if we will require the RTC judge to for word before he acts on each of a
personally examine the complainant and his big pile of applications for arrest
witnesses to determine probable cause before warrants on his desk, he may have no
issuing the warrant, he might have no more or more time for his or her more
nothing to do more except to do that. He cannot important judicial functions. At the
anymore try cases, wala na, puro na lang same time, the Judge cannot ignore the
probable cause. So he may not have time clear words of the 1987 Constitution
anymore to do his usual duty. Thus he can rely which requires probable cause to be
on the findings of the fiscal. personally determined by the judge, not
by any other officer or person.
So this really cause some kind of confusion. If a Judge relies solely on the
Now, these confusions are now reconciled. There certification of the Prosecutor, he has
are many cases such as ROBERTS VS. CA (the not personally determined probable
PEPSI-COLA 349 tansan case). But the first one cause. The determination is made by
the SC really discussed the issue exhaustively the Provincial Prosecutor. The
was the 1991 case of constitutional requirement has not
been satisfied.
LIM, SR. vs. FELIX The Judge does not have to
194 SCRA 292 [1991] personally examine the complainant
and his witnesses. The Prosecutor can
FACTS: The information was filed perform the same functions as a
information lang and a certification commissioner for the taking of the
by the fiscal that based on the evidence. However, there should be a
investigation, there is probable cause. report and necessary documents
And on the basis of that information supporting the Fiscal's bare
certification, the judge issued a certification. All of these should be
warrant of arrest. before the judge. The judge must go
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 63

beyond the Prosecutor's certification than 20 minutes? You did not

and investigation report whenever go over them. Ibig sabihin
necessary. He should call for the binasa mo lahat yan within 20
complainant and witnesses themselves minutes only?
to answer the court's probing So it is now doubtful that the judge
questions when the circumstances of will go over the entire records within
the case so require. 20 minutes. Ang kapal ng records eh!
We reiterate that in making the
required personal determination, a HELD: Sabi ng SC: Eh kung
judge is not precluded from relying on mabilis pala mag-basa ang judge?
the evidence earlier gathered by [Anong pakialam mo? Ha!] Ang importante
responsible officers. The extent of the nandoon ang records!
reliance depends on the circumstances
of each case and is subject to the
judge's sound discretion. However, (as Now, these issues were further supplemented
happened in the case of Lim) the judge by other cases in 1997. The leading case is
abuses that discretion when having no
evidence before him, he issues a
warrant of arrest. HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997

How did the SC reconcile that? When the ISSUE: Is it required that
fiscal files an information, the judge will require everything that was filed in the fiscals
the fiscal to attach to the information all the office will really be included? Lahat ba
records of the preliminary investigations talaga? Eh kung makapal?
affidavits, counter-affidavits, or other whatever
documents. All the evidence will be submitted to HELD: It is NOT required that
the judge and he will review them. After reading the complete or entire records of the
them, if the judge is not satisfied that there was case during the preliminary
probable cause, he may summon the witnesses. investigation be submitted to and
BUT if he is satisfied, he can issue the warrant examined by the judge. We do not
without the need for summoning the witnesses. intend to unduly burden trial courts
He can rely on the affidavits. That is what by obliging them to examine the
personally examined means. complete records of every case all the
time simply for the purpose of
ROBERTS vs. COURT OF ordering the arrest of an accused.
APPEALS What is required, rather, is that the
March 5, 1996 judge must have sufficient supporting
documents (such as the complaint,
FACTS: This is the Pepsi-Cola 349 affidavits, counter-affidavits, sworn
tansan case. Pag-file ng fiscal, marami, statements of witnesses or transcripts
makapal ang documents. The records of stenographic notes, if any) upon
of the case is voluminous. Maraming which to make his independent
nanalo ng 349 nun eh. So pag-file, judgment or, at the very least, upon
after 20 minutes the judge issued the which to verify the findings of the
warrant of arrest. The accused prosecutor as to the existence of
challenged it: probable cause. The point is: he cannot
ACCUSED: You did not rely solely and entirely on the
determine probable cause. prosecutors recommendation.
JUDGE: Bakit? All the
supporting documents are
attached in the information. Going back to Section 6 (a):
ACCUSED: Yes, but how
can you go over them in less
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 64

(a) By the Regional Trial

Court. Within ten (10) days
from the filing of the ISSUE #1: Does the court have the
complaint or information, the power to require the fiscal to present
judge shall personally evaluate evidence to convince the judge that
the resolution of the
prosecutor and its supporting there is probable cause to issue the
evidence. [This is a new warrant of arrest when the fiscal
sentence:]He may immediately already found probable cause to file
dismiss the case if the
evidence on record clearly the case?
fails to establish probable HELD: YES. The power of the
cause. If he finds probable fiscal is to determine probable cause to
cause, he shall issue a warrant
of arrest, or a commitment file while for the judge is probable
order if the accused has cause to issue the warrant of arrest.
already been arrested pursuant Iba yung iyo, iba rin yung sa akin! You
to a warrant issued by the
judge who conducted the cannot say that simply because you
preliminary investigation or found probable cause, I will follow
when the complaint or you. [We already discussed that
information was filed pursuant
to section 7 of this Rule. [The principle and it is already stated in the
last sentence is also new:]In rules] So, it will be the power of the
case of doubt on the existence judge to inform the prosecutor and to
of probable cause, the judge
may order the prosecutor to require the fiscal to convince him that
present additional evidence there is probable cause to issue the
within five (5) days from
notice and the issue must be
warrant. (now last sentence of Section
resolved by the court within 6 [a])
thirty (30) days from the
filing of the complaint of
ISSUE #1: Since the fiscal refuses
to comply, did the judge act correctly
in ordering the dismissal of the
This brings to my mind one of the leading information?
cases on this issue which was asked in the Bar HELD: NO. This time mali ang
and which I also asked in some examinations judge. If the fiscal does not want to
here. The case of comply with the judges order, the
remedy of the judge is not to issue the
AMARGA vs. FISCAL warrant. Ayaw mong sumunod?
98 Phil. 739 then do not issue the warrant. But do
not dismiss the case because this time
FACTS: The provincial fiscal filed we are already encroaching the power
an information in the CFI (now, RTC). of the prosecutor. (c.f. second sentence
Normally, the judge will issue the of Section 6 [a])
warrant. Nag-alanganin naman ang
judge. What the judge did was to issue
an order requiring the fiscal to appear Now, based on the present rules, we will now
before him and convince him that ask the same questions today.
there is probable cause for the judge to
issue warrant. Eh ayaw ng fiscal, My Q: Can the judge require the fiscal to present
golly! That is already an insult for me evidence of probable cause in convincing him to
as a quasi-judicial officer! I found issue the warrant of arrest?
probable cause. That is my finding. A: YES. That is the prerogative of the judge.
The judge should believe me because (AMARGA VS. ABBAS)
that is my prerogative. So ayaw mag-
sunod ng fiscal. Judge, Ayaw mo ha! Q: If fiscal refuses, has the judge the power to
Okey! Case is dismissed! dismiss the case?
Remember, there are two (2) A: In the case of Amarga, no. However, under
questions there asked in the bar: Section 6, the judge may immediately dismiss the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 65

case if the evidence on record clearly fails to establish Obviously, this rule does not apply in
probable cause. chartered cities but in municipalities. Sa
probinsiya, for example, the case is murder. That
That is a new sentence, xxx he may is not triable by MTC but you can file the
immediately dismiss the case xxx not found in the complaint for murder before the MTC not for the
prior rule. To my mind, that has change the purpose of trial but for the purpose of
answer. While before, the judge may not have the preliminary investigation. That is the difference.
power to dismiss the case if he finds no probable
cause. Right now, the rules says YES because of We already learned that he resolution of the
that new provision, he may immediately dismiss judge, whether to file or not to file, is ipasa niya
the case if the evidence on record clearly fails to sa Provincial Prosecutor who has the final say.
establish probable cause even if the fiscal has Thats why the rule says, if his findings and
already found probable cause. In other words, recommendations are affirmed by the provincial
this has changed the ruling in the old case of or city prosecutor, or by the Ombudsman or his
Amarga. deputy, and the corresponding information is
filed, he shall issue a warrant of arrest. However,
Lets go to Section 6 [b]: (Preliminary without waiting for the conclusion of the
Investigation conducted by MTC judge) investigation, the judge may issue a warrant of
arrest if he finds after an examination in writing
(b) By the Municipal Trial and under oath of the complainant and his
Court. When required pursuant
to the second paragraph of witnesses in the form of searching questions and
section of this Rule, the answers, that a probable cause exists and that
preliminary investigation of there is a necessity of placing the respondent
cases falling under the
original jurisdiction of the under immediate custody in order not to frustrate
Metropolitan Trial Court, the ends of justice.
Municipal Trial Court in
Cities, Municipal Trial Court,
or Municipal Circuit Trial Lets compare.
Court may be conducted by
either the judge or the
prosecutor. When conducted by
Q: Does the fiscal have the power to issue
the prosecutor, the procedure warrant of arrest?
for the issuance of a warrant A: NO. His power is to conduct preliminary
of arrest by the judge shall be
governed by paragraph (a) of
investigation and if there is probable cause File!
this section. When the
investigation is conducted by Q: Who will issue the warrant?
the judge himself, he shall
follow the procedure provided
in section 3 of this Rule. If
his findings and Pero ang municipal judge, iba eh. The police
recommendations are affirmed by
the provincial or city
will file a complaint for homicide in MTC for
prosecutor, or by the Ombudsman preliminary investigation. Pag-basa ng MTC
or his deputy, and the judge, aba! Grabe ito! There is probable cause. Pero
corresponding information is
filed, he shall issue a warrant
teka muna, delikado ito baka makawala arrest him!
of arrest. However, without So even before the case is filed in the RTC, the
waiting for the conclusion of MTC judge has the power to issue warrant of
the investigation, the judge
may issue a warrant of arrest
if he finds after an
examination in writing and That is the difference between the power of
under oath of the complainant
and his witnesses in the form
the MTC judge and the power of the Provincial
of searching questions and Prosecutor. Both of them have the power to
answers, that a probable cause conduct a preliminary investigation in the
exists and that there is a
necessity of placing the province. But the fiscal has no power to issue a
respondent under immediate warrant but the judge has the power to issue
custody in order not to warrant even while the preliminary investigation
frustrate the ends of justice.
is going on. That is why in the province,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 66

complainants prefer to file sa MTC para issue whether or not the case should be filed in the
dayun ang warrant. RTC.

The issuance of warrant by the MTC judge is Q: But now, when is the preliminary
ex parte. He will just determine it based on the investigation required?
affidavit of the complainant and his witnesses A: When the crime is punishable by 4 years, 2
after searching questions and answers. So the months and 1 day and up.
examination conducted by the judge is literal in
meaning. And once you are arrested, tuloy tayo. Q: The case has a maximum penalty of 6 years
You now follow preliminary investigation. You therefore triable by the MTC. Is the MTC judge
submit now your counter-affidavits. For what required to conduct a preliminary investigation?
purpose? We will determine whether the case A: YES. Mandated man yan ba! Although it is
will be filed in the RTC or not. triable by the MTC, it is still mandatory for the
MTC judge to conduct preliminary investigation
So there are two (2) stages: because any crime which carries the penalty of 4
years, 2 months and 1 day or up, is subject to
1. first stage Preliminary Examination preliminary investigation.
to determine whether or not to issue a
warrant of arrest. This is done ex parte. Q: In this case, who will conduct the
2. second stage Preliminary preliminary investigation? The fiscal or the MTC
Investigation proper - to determine, judge?
after you are arrested, whether or not A: Either one of them. Let us read the opening
you will be indicted in the RTC. paragraph of Section 6 (b):

Q: Is it mandatory that every time you file a (b) By the Municipal Trial
Court. When required pursuant
case in the MTC, the judge will always issue a to the second paragraph of
warrant or arrest? section of this Rule, the
A: NO. Hindi naman sinabi yun because in preliminary investigation of
cases falling under the
order to determine whether a warrant of arrest original jurisdiction of the
will be issued, the judge will conduct the Metropolitan Trial Court,
examination. He will examine in writing under Municipal Trial Court in
Cities, Municipal Trial Court,
oath of the complainant and witnesses in the form or Municipal Circuit Trial
of searching questions and answers, that a Court may be conducted by
probable cause exists and that there is a necessity either the judge or the
of placing the respondent under immediate
custody in order not to frustrate the ends of
But I was wondering with this issue. This
happens in places where there is only 1 branch, 1
judge. For example, ako ang judge and the case is
So if you file a case for homicide against
filed before me preliminary investigation ito ha!
somebody in the municipality; tao na kilala mo;
4 years, 2 months and 1 day. There is a probable
mayaman at may malalaking properties; if Im
cause so I will continue. Now, who will try the
the judge, I will not issue a warrant of arrest.
case? Ako rin di ba? Sabihin ng defense, Ah wala
Tatakbo ba yan? I dont think so. I may or may
na. Talo na kami. Bias ka na eh! Naloko na! This
not issue the warrant but my criterion is: is there
might be a ground for disqualification eh because
a necessity of placing him under immediate
you already found probable cause, chances are
custody in order not to frustrate the end of
dire-diretso na ito you will convict me, you are
justice? But suppose the accused has no
no longer impartial. This is now the danger
permanent address, ayan! Delikado na yan, baka
because of this new provision.
makawala! I will now issue a warrant of arrest.
Suppose sabihin ng judge, Hindi man. I
Now, what has changed the picture now is
found probable cause only for the case to proceed
this: there is no question if the case is triable by
to trial but for all you know during the trial, I
the RTC, the MTC judge will conduct a
might find you innocent, not guilty beyond
preliminary investigation in order to determine
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 67

reasonable doubt. Ang criterion ko diyan is committing a crime in the presence of

probable cause man lang probably you are a peace officer, the fiscal will only
guilty. But when I will try it, it should be guilt conduct an inquest preliminary
beyond reasonable doubt. Yan ang delikado investigation and there is no need to
dito! Mabuti sana if the fiscal was the one who issue a warrant because the accused is
conducted the preliminary investigation. But also under detention already.
when I am the one who conducted the Normally, what the court there issues
preliminary investigation and then I will also be is a commitment order, just to confirm
one to try the case, there might be complaints of the detention of the accused; and
biases or prejudgment. So there are provisions in
the new rules which might create practical 3. if the accused is charged for an offense
problems. penalized by fine only di na
kailangan ang warrant of arrest. There
Lets go to the last portion of Section 6. Lets are crimes where there is no penalty
read Section 6 [c]: for imprisonment but only fine like
damage to property through reckless
(c) When warrant of arrest imprudence. Based on the new rules,
not necessary. A warrant of
arrest shall not issue if the there is no need for a warrant, just an
accused is already under order to appear is sufficient.
detention pursuant to a warrant
issued by the municipal trial
court in accordance with
paragraph (b) of this section, SEC 7. When accused lawfully
or if the complaint or arrested without warrant.
information was filed pursuant When a person is lawfully
to section 7 of this Rule or is arrested without a warrant
for an offense penalized by involving an offense which
fine only. The court shall them requires a preliminary
proceed in the exercise of its investigation, the complaint or
original jurisdiction. (6a) information may be filed by a
prosecutor without need of such
investigation provided an
Normally, when the information is filed in inquest has been conducted in
court, the court issues a warrant of arrest. accordance with existing rules.
In the absence or
However, there are instances when the court need unavailability of an inquest
not issue a warrant of arrest. prosecutor, the complaint may
be filed by the offended party
or a peace officer directly
Q: What are the instances when the court with the proper court on the
need not issue a warrant of arrest? basis of the affidavit of the
A: Under Section 6 [c], the following are the offended party or arresting
officer or person.
instances: Before the complaint or
information is filed, the
1. if the accused is already under person arrested may ask for a
preliminary investigation in
detention pursuant to a warrant accordance with this Rule, but
issued by the MTC in accordance with he must sign a waiver of the
paragraph [b] of Section 6. If the MTC provision of Article 125 of the
Revised Penal Code, as amended,
issues the warrant of arrest and later in the presence of his counsel.
on the cases reaches the RTC because Notwithstanding the waiver, he
there is probable cause, there is no may apply for bail and the
investigation must be
need for the RTC to issue another terminated within fifteen (15)
warrant because there is already a days from its inception.
warrant issued by the MTC. And as a After the filing of the
complaint or information in
matter of fact, the accused has already court without a preliminary
been detained; investigation, the accused may,
within five (5) days from the
time he learns of its filing,
2. when the complaint or information is ask for a preliminary
filed pursuant to Section 7 of this rule. investigation with the same
right to adduce evidence in his
Section 7 the accused is arrested for
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 68

defense as provided in this

Rule. (7a; sec. 2, R.A. No.
7438) But now, puwede na eh, under this situation
lang: (1) the accused is arrested without a
Section 7 is another important provision. This warrant and (2) there is the absence or
is called INQUEST PRELIMINARY unavailability of an inquest prosecutor. With that
INVESTIGATION, related to Rule 113, Section 5 situations, the new rules now allow a direct filing
[a] and [b] on warrantless arrest. Here, there is no of the complaint by the offended party or the
need for preliminary investigation because there peace officer directly with the proper court even
is a deadline for the accused to be detained. in the RTC. That is why this is radical change.
Otherwise the peace officer will be guilty of
arbitrary detention delay in the delivery. Now, whether this is the one or the other, you
cannot deny the fact that the accused is entitled to
If we will conduct a preliminary a preliminary investigation. You cannot deprive
investigation, that will last for many days. So him of this right. When there is a case filed in
what will happen to a person who committed a court without preliminary investigation so that he
crime if we will conduct a regular preliminary can be detained indefinitely in which case, he can
investigation? Well, to avoid this possibility, wala ask for a preliminary investigation in accordance
ng preliminary investigation. The prosecutor will with this rule but after the case is filed. Baliktad!
conduct an INQUEST preliminary investigation
based only on the affidavit of the complainant, Normally, the preliminary investigation
the police maybe, and his witnesses so that the comes before the filing of the case. Dito naman,
court may issue a commitment order. With that, filing comes before preliminary investigation
the deadline has been met you have been baliktad! During preliminary investigation, if
delivered to the proper judicial authorities. there is no probable cause, the complaint will be
dismissed or the fiscal will move to dismiss the
Now, there is a new sentence inserted in case. But if you insist on that right to preliminary
Section 7, first paragraph In the absence or investigation before filing, ayaw mo ng inquest,
unavailability of an inquest prosecutor, the complaint then you must sign a WAIVER in the presence of
may be filed by the offended party or a peace officer your counsel waiver of your right under Article
directly with the proper court. a very radical 125, RPC. Here, while the preliminary
provision. investigation is still going on, you remain under
detention. The second paragraph applies if he
The normal procedure is: for example, the insist on the right to a regular or ordinary
offended party or the peace officer will file the preliminary investigation.
case before the fiscal to inquest preliminary
investigation. And then the fiscal will now file the Correlate this with Section 2 [e] of RA 7438
information in court lets say in the RTC. Law Protecting Rights of Persons under custody
i.e. he must be assisted by his counsel. Otherwise
Q: However, suppose there is no inquest the waiver is not valid.
prosecutor? Or there is an inquest prosecutor but
he is not available, what will happen now to the Now, if there is no insistence, the case will be
case? filed ahead. After it was filed, you can still ask for
A: The new provision says, the complaint preliminary investigation within 5 days from the
may be filed by the offended party or a peace time you learn of the filing of the case. So within 5
officer directly with the proper court so that the days lang, otherwise you are deemed to have
accused should be delivered. waived your right to preliminary investigation

Why is this a very radical change? There is no Note that the SC had ruled that the period of
problem with the MTC because you can file 5 days is NON-EXTENDIBLE that is absolute.
directly in the MTC. But as a matter of practice, (PEOPLE vs. CA, 242 SCRA 645). The five-day
you cannot file a complaint directly with the RTC. period is absolute. After 5 days, you have no
Everything here is done by information. The RTC more right to ask for a preliminary investigation.
does not entertain complaints filed by the police
or the offended party.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 69

Take note that the general rule, once you post affidavits and other supporting
documents submitted by the
bail, you are waiving your right to a preliminary complainant within ten (10)
investigation. In PEOPLE VS. CA, if you do not days from its filing.
want to waive your right to preliminary (b) If filed with the
Municipal Trial Court If the
investigation, then if you post bail, you must complaint or information is
make a reservation. You must say, Im posting filed with the Municipal Trial
bail but Im not waiving my right to preliminary Court or Municipal Circuit
Trial Court for an offense
investigation. In fact, I am asking for it. In Section 7, covered by this section, the
last paragraph, when the accused post bail for his procedure in section 3 (a) of
provisional release, he is deemed to have waived this Rule shall be observed. If
within ten (10) days after the
his right to preliminary investigation. To avoid filing of the complaint or
the waiver, there must be a previous or information, the judge finds no
simultaneous demand for a preliminary probable cause after personally
evaluating the evidence, or
investigation upon posting of bail bond. after personally examining in
writing and under oath the
SEC. 8. Records. (a) complainant and his witnesses
Records supporting the in the form of searching
information or complaint. An questions and answers, he shall
information or complaint filed dismiss the same. He may,
in court shall be supported by however, require the submission
the affidavits and counter- of additional evidence, within
affidavits of the parties and ten (10) days from notice, to
their witnesses, together with determine further the existence
the other supporting evidence of probable cause. If the judge
and the resolution on the case. still finds no probable cause
(b) Record of preliminary despite the additional
investigation. The record of evidence, he shall, within ten
the preliminary investigation, (10) days from its submission
whether conducted by a judge or or expiration of said period,
a prosecutor, shall not form dismiss the case. When he finds
part of the record of the case. probable cause, he shall issue
However, the court, on its own a warrant of arrest, or a
initiative or on motion of any commitment order if the accused
party, may order the production had already been arrested, and
of the record or any of its hold him for trial. However, if
part when necessary in the the judge is satisfied that
resolution of the case or any there is no necessity for
incident therein, or when it is placing the accused under
to be introduced as an evidence custody, he may issue summons
in the case by the requesting instead of a warrant of arrest.
party. (9a)

Section 8 is just a reiteration of a doctrine that

when the fiscal files an information, he should Section 9 Cases not requiring a preliminary
back up his certification of probable cause with investigation nor covered by the Rule on
appropriate records. An information with mere Summary Procedure. Obviously, Section 9 talks
certification is not enough. (Lim, Sr. vs. Felix, only of cases (a) cognizable only by MTC; (b) the
supra) penalty does not exceed 4 years 2 months because
even if it is 4 years 2 months 1 day (up to 6 years),
SEC. 9. Cases not requiring it still requires a preliminary investigation under
a preliminary investigation nor
covered by the Rule on Summary
the new rules; and (c) it should not be covered by
Procedure. (a) If filed with the Rules of Summary Procedure. The coverage of
the prosecutor. If the summary procedure is up to 6 months penalty.
complaint is filed directly
with the prosecutor involving
an offense punishable by Q: What cases are covered by Section 9?
imprisonment of less than four A: Where the prescribed penalty exceeds 6
(4) years, two (2) months and
one (1) day, the procedure months but not more than 4 years and 2 months.
outlined in section 3(a) of These does not require preliminary investigation
this Rule shall be observed. and also not covered by the summary rules.
The prosecutor shall act on the
complaint based on the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 70

Q: Now, going back to Rule 110. In cases ten (10) days from notice, to determine further the
cognizable by the MTC, how is it instituted? existence of probable cause. If the judge still finds
A: Section 1, Rule 110: no probable cause despite the additional
evidence, he shall, within ten (10) days from its
SECTION 1. Institution of submission or expiration of said period, dismiss
criminal actions. Criminal
actions shall be instituted as
the case. When he finds probable cause, he shall
follows: issue a warrant of arrest, or a commitment order
(a) For offenses where a if the accused had already been arrested, and
preliminary investigation is
required pursuant to section 1
hold him for trial. [The next sentence is new
of Rule 112, by filing the again:] However, if the judge is satisfied that there is
complaint with the proper no necessity for placing the accused under custody, he
officer for the purpose of
conducting the requisite
may issue summons instead of a warrant of arrest.
preliminary investigation.
(b) For all other offenses, So it is not really necessary that every time a
by filing the complaint or
information directly with the
case is filed in the MTC with a penalty not more
Municipal Trial Courts and than 4 years and 2 months, kailangan mag-
Municipal Circuit Trial Courts, warrant of arrest agad ang judge. Wala na yan!
or the complaint with the
office of the prosecutor. In
That is the old practice. Sometimes it is very
Manila and other chartered tedious. Lalo na sa MTC. Karamihan ng kaso sa
cities, the complaints shall be MTC is bouncing check law. If I were the MTC
filed with the office of the
prosecutor unless otherwise
judge, bouncing check law, sino ba yang
provided in their charters. akusado? Di ko kilala. Balita ko maraming kaso
yan. Ah sige, I will issue a warrant.
x x x x x

Pero halimbawa, sino yang akusado? He is

So there are two (2) ways: (a) direct filing or
Jet Pascua, Your Honor. Uy! Kilala ko ito!
(b) you file with the prosecutor and the provincial
Businessman ito, titser pa sa Ateneo. Mayaman
prosecutor will file the information.
ito! Sus! Minalas lang. If I am the judge, I will not
issue a warrant. Tatakbuhan ka ba niyan?
Lets go to Section 9. If it is filed with the
prosecutor, the procedure in Section 3[a] of this
So the judge need not issue a warrant. You
rule shall be observed. There is no need for
better tell that to those judges because they are
preliminary investigation. The prosecutor will
automatic ba! warrant! warrant! warrant! Just
simply find out based on the affidavit of the
imagine kahit respectable man, first time offender
complainant and his witnesses whether or not
warrant kaagad ang mga MTC judges.
there is probable cause. Wala ng counter-
affidavit. There is no need for the prosecutor to
Well, under the new rules, hindi man
give a chance to the respondent to give this
kailangan bah! Even if there is probable cause to
counter-affidavits. Section 3[a] lang sundin eh.
file, if he is satisfied that there is no necessity to
There is no mention of [b], [c] or [d].
put the accused in custody, he may issue
summons. Summons here is not really the same in
Section 9[b]. What happens if it is filed in the
the Rules of Court. It is just a notice bah notice
MTC directly? Again, the judge will observe the
that you are required to appear. And that is a new
same procedure in Section 3[a] of this rule. If the
judge finds no probable cause after personally
evaluating the evidence, or after personally
Now, we will go to some decided cases
examining in writing and under oath the
related to this rule.
complainant and his witnesses in the form of
searching questions and answers, he shall dismiss
the same. So he has the power to dismiss the case.
270 SCRA 393, March 25, 1997
Why continue if there is no probable cause?
NOTE: This case signifies that
The next sentence is new: He may, however,
once the case reached the court, the
require the submission of additional evidence, within
court has the absolute power.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 71

Anything that you like to happen in

the case like reinvestigation or absence However, the SC came out with
of preliminary investigation, the judge EXCEPTIONS where courts is authorized to stop
will be the one to approve. a criminal prosecution. These exceptions were all
FACTS: The RTC judge felt that cited in the case of
the case should be reinvestigated, or
maybe there is no preliminary BROCKA vs. ENRILE
investigation. So he orders the fiscal to 192 SCRA 83
conduct preliminary investigation,
then submit the result to him HELD: Indeed, the general rule is
afterwards what happened. Siguro, that criminal prosecution may not be
the judge had particular confidence in restrained or stayed by injunction,
the assistant provincial prosecutor. preliminary or final. There are
Sabi ng judge, The preliminary however exceptions, among which are:
investigation should be conducted by
this particular prosecutor provincial a. To afford adequate protection
assistant prosecutor Boyd Atensor. to the constitutional rights of
Siya ang nag-pili ba. Sabi ng the accused;
provincial prosecutor, Hindi! Ako b. When necessary for the orderly
ang magpili and not you! administration of justice or to
avoid oppression or
ISSUE: In remanding the multiplicity of actions;
complaint or information to the c. When there is a pre-judicial
provincial prosecutor, may a regional question which is sub judice;
trial court judge name or designate a d. When the acts of the officer are
particular assistant prosecutor to without or in excess of
conduct the preliminary investigation authority;
of the case? e. Where the prosecution is under
an invalid law, ordinance or
HELD: NO. The RTC judge is regulation;
already interfering with the office of f. When double jeopardy is
the prosecutor. It must be stressed clearly apparent;
that preliminary investigation is an g. Where the court has no
executive, not a judicial, function. That jurisdiction over the offense;
an RTC judge has no authority to h. Where it is a case of
conduct a preliminary investigation persecution rather than
necessarily means that he cannot prosecution;
directly order an assistant prosecutor, i. Where the charges are
particularly over the objections of the manifestly false and motivated
latter's superiors, to conduct a by the lust for vengeance; and
preliminary investigation. To allow j. When there is clearly no prima
him to do so is to authorize him to facie case against the accused
meddle in the executive and and a motion to quash on that
administrative functions of the ground has been denied.
provincial or city prosecutor.
There are some interesting cases where the SC
Q: Can a preliminary investigation be stopped intervened. Normally, hindi nakikialam ang SC
by asking the court to grant a preliminary eh i-acquit mo na lang yan sa trial. But there are
injunction or a restraining order? Can a criminal cases when the SC is convinced that there is no
prosecution be enjoined or restrained? probable cause, bakit mo pa pahirapan yung tao?
A: NO, as a GENERAL RULE. If you believe You can order the case to be dismissed. These are
that you are not guilty, then you prove that in rare instances where the SC becomes activist.
court. Anyway if you are not guilty, you will be
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 72

In the case of ALEADO VS. DIOKNO (232 The man

answered: Im here
SCRA 192) two (2) lawyers: Atty. Diosdado Jose to install the phone
Aleado and Atty. Roberto Mendoza who were line.
associates in the office of senator Jovito Salonga
Source: Readers
were implicated in the murder of a German Digest, March 2001
national. There was an investigation and a case
was filed against them. Salonga entered into RULE 113
picture and questioned whether or not there is ARREST
probable cause. [Normally, hindi dapat yan eh.
Yang probable cause, sa fiscal lang yan, hindi Section 1. Definition of arrest.
dapat sa SC.]
Arrest the taking of a person into custody
But surprisingly, the SC reviewed and said in order that he may be bound to answer for
that there was no probable cause which justified the commission of an offense (Sec. 1 Rule
the issuance of order of arrest of the 2 lawyers. 113)
The SC ordered that the warrant of arrest be set
aside and the trial court is permanently enjoined Modes of Arrest
from further proceeding against them. In effect, 1. arrest by virtue of a warrant
the respondent judge was ordered to dismiss the 2. arrest without a warrant under
statutorily provided exceptional
information before him. (Aleado vs. Diokno,
Essential requisites of a valid warrant of
It was a very rare situation. That does not arrest:
happen every year. It does not happen even in 10 1. It must be issued upon probable cause
or 20 years! Yan ang mga kuyaw where the Court which must be determined personally by a
has the power to issue injunction order to stop a judge after examination under oath or
case when there is no probable cause. Salonga affirmation of the complainant and the
yata yan! witnesses he may produce
2. The warrant must particularly describe
the person to be seized

SPACE-FILLER #2: Section 2. Arrest; how made.

Modes of Effecting Arrest

A recently 1. By an actual restraint of the person to be
graduated lawyer
wanted to make arrested
everyone believe that 2. By his submission to the custody of the
he was in great person making the arrest
demand, so he ordered
his secretary to keep
clients waiting for a Upon arrest, the following may be
long time. confiscated from the person arrested:
A man arrived 1. Objects subject of the offense or used or
and asked to see the intended to be used in the commission of
lawyer, so the
secretary did as she the crime;
was told. After a 2. Objects which are the fruits of the crime;
while, she showed the 3. Those which might be used by the
man into her bosss arrested person to commit violence or to
office, while the
lawyer pretended to
be on the phone 4. Dangerous weapons and those which
handling a delicate may be used as evidence in the case.
situation with an
important client. The
lawyer ended the
Section 5. Arrest without warrant; when
make-believe phone lawful
call and hung up. He
can I help you?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 73

1. When, IN HIS PRESENCE, the person to inform the person person to be

be arrested has committed, is actually to be arrested the arrested flees;
committing, or is attempting to commit cause of the
an offense; arrest and the 2. when he forcibly
2. When an offense has in fact just been fact that the resists before the
committed, and he has probable cause to warrant has been officer has an
believe based on PERSONAL issued for his opportunity to
KNOWLEDGE of fact and circumstance arrest. inform him; and
that the person to be arrested has
committed it; (Doctrine of Hot Pursuit) 3. when the giving
and of such information
3. When the person to be arrested is a will imperil the
prisoner who has escaped from a penal arrest.
establishment or place where he is The officer shall 1. when the person
serving final judgment or temporarily Sec. 8 inform the person to be arrested is
confined while his case is pending, or has to be arrested of engaged in the
escaped while being transferred from one his authority and commission of an
confinement to another. the cause of the offense or
4. Where a person who has been lawfully arrest w/out a is pursued
arrested escapes or is rescued (sec 13, warrant immediately its
Rule 113); commission;
5. by the bondsman for the purpose of
surrendering the accused (sec 23, Rule 2. when he has
114); and escaped, flees, or
6. where the accused attempts to leave the forcibly resists
country without permission of the court before the officer
(sec 23, Rule 114). has an opportunity
to so inform him;
Any objection involving an arrest of the and
accused without warrant and before the
acquisition by the court of jurisdiction over 3. when the giving
the person of the accused must be made of such information
BEFORE he enters a plea, OTHERWISE, the will imperil the
objection is deemed waived. arrest.

Section 6. Time of making arrest.

Unlike a search warrant which must be The private 1. when the person
served only in daytime, an arrest may be Sec. 9 person shall to be arrested is
made on any day and at any time of the day inform the person engaged in the
or night, even on a Sunday. This is justified to be arrested of commission of an
by the necessity of preserving the public the intention to offense or
peace. arrest him and is pursued
the cause of the immediately its
Section 7. Method of arrest of officer by arrest. commission;
virtue of warrant.
Section 8. Method of arrest by officer 2. when he has
without warrant. escaped, flees, or
Section 9. Method of arrest by private forcibly resists
person. before the officer
has an opportunity
Citizen arrest - arrest effected by a private to so inform him;
person. and

Exception to the 3. when the giving

Method of arrest rule on giving of such information
information will imperil the
Sec. 7 The officer shall 1. when the arrest.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 74

"Invitations" are not arrests and are

usually not unconstitutional, but in some
Section 10. Officer may summon cases may be taken as commands (Babst
assistance. vs. NBI); however, the practice of issuing
Only an officer making the arrest is governed an "invitation" to a person who is
by the rule. It does not cover a private investigated in connection with an offense
individual making an arrest. he is suspected to have committed is
considered as placing him under
Section 11. Right of officer to break into custodial investigation. (RA 7438)
building or enclosure. Warrants of arrest remain valid until arrest
is effected, or the warrant is lifted
Requisites before an officer can break Arrest may be made at any time of the day
into a building or enclosure to make an or night
3. Warrantless arrests by a peace officer or a
1. That the person to be arrested is or is
private person
reasonably believed to be in said
building; a. When person to be arrested is committing,
2. That he has announced his authority and attempting or has committed an offense
purpose for entering therein; b. When an offense has just been committed
3. That he has requested and been denied and the person making the arrest has
admittance. personal knowledge that the person to be
arrested committed it
Section 12. Right to break out of the Warrantless arrest anytime for a
building or enclosure to effect release. continuing offense like rebellion,
A private person making an arrest CANNOT subversion (Umil vs. Ramos)
break in or out of a building or enclosure
The continuing crime, not the crime
because only officers are allowed by law to
finally charged, needs only be the
do so.
cause of the arrest (Umil vs. Ramos)
Section 13. Arrest after escape or rescue. c. When person to be arrested is an escaped
Where a person lawfully arrested escapes or detainee (either serving sentence or with
is rescued, any person may immediately case pending)
pursue or retake him without a warrant at c. When a person lawfully arrested escapes
any time and in any place within the d. Bondsman, for purpose of surrendering
country. The pursuit must be immediate. the accused
Section 14. Right of Attorney or relative e. Accused attempts to leave country without
to visit person arrested court permission
RA 7438 defined certain rights of persons 4. Procedure
arrested, detained, or under custodial a. WITH WARRANT
investigation, with the penalties for
i. Complainant files application with
violations thereof.
affidavits attached
ii. Judge conducts ex parte preliminary
examination to determine probable
1. Arrest taking a person into custody in order cause
that he may be bound to answer for In determining probable cause,
the commission of some offense, judge must:
made by an actual restraint of the
person or by his submission to (1) Personally examine witness
custody (2) Witness must be under oath
2. General Rule: No person may be arrested (3) Examination must be reduced
without a warrant. to writing (Luna vs. Plaza)
Not all persons detained are arrested; only In determining probable cause, the
those detained to answer for an offense. judge may rely on findings by
responsible officer (Lim vs. Felix)
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 75

iii. Judge issues warrant of arrest

If without preliminary examination,
considered irregular (Bagcal vs.
iv. If peace officer is unable to serve
warrant 10 days after issuance, he
must file a report and explanation with
judge within 10 days
v. If warrant served
(1) Person informed that he is being
(2) Informed of cause of his arrest
(3) Officer may break door or window
if admission to building is refused
(4) Person physically restrained
For private citizens making an
May not do so except to do
some service to humanity or
(5) No violence or unnecessary force
may be used
(6) Officer may summon assistance
(7) Person who escapes after arrest
may be immediately pursued
vi. Person arrested is brought to nearest
police station or jail
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 76

b. WITHOUT WARRANT: Filed with court which issued the

i. Person is arrested warrant of arrest when the warrant of
arrest is fatally flawed
ii. Person arrested may waive right to
Art. 125, RPC and ask for preliminary c. Motion to quash information
investigation or inquest Filed with court when information
Fiscal is not judicial authority against the person arrested has been
contemplated under Art. 125 (Sayo filed
vs. Chief of Police) Must be made in a "special
iii. Fiscal files info appearance" before the court
questioning only its lack of jurisdiction
5. Requisites for a warrant of arrest: over the person of the accused
a. Probable cause Otherwise, the voluntary appearance
b. Signed by judge of the person arrested by filing a
c. Specifically naming or particularly and motion before the court would be
sufficiently describing person to be deemed a submission to the authority
arrested of the court, thus granting it whatever
jurisdiction it lacked over the person
John Doe warrants are void for being
general warrants (Pangandaman vs. Any irregularity in the arrest is cured
Cesar) when the petitioner submits himself to
the jurisdiction of the court, e.g., by
6. Remedies filing for bail (Bagcal vs. Villaraza)
a. Petition for writ of habeas corpus 7. V.V. Mendoza, "Rights to Counsel in
Filed with any court, to effect Custodial Investigation"
immediate release of the person Evolution of rights of the accused under
detained custodial investigation
Filed when a person is being illegally a. All involuntary confession were
detained (without judicial process), or inadmissible; accused had to prove
was illegally arrested (void warrant or involuntariness
unlawful warrantless arrest, or
warrantless arrest beyond period with b. Involuntary confessions were
no information filed) inadmissible only if they were false
Habeas corpus is not allowed when: c. Revert to exclusionary rule: any
involuntary confession is inadmissible
i. The person is in custody of an
officer under process of law, and d. Miranda rule: the accused must be
informed of his rights
ii. The court had jurisdiction to issue
the process (Luna vs. Plaza) i. To remain silent
If an arrest is improper, the remedy is ii. Against self-incrimination
a motion for quashal of the warrant of iii. To counsel
arrest and/or a motion to quash the e. Definition of custodial investigation
information, not habeas corpus (Ilagan questioned
vs. Enrile)
f. It begins only after arrest
Habeas corpus is no longer available
after an information has been filed, the g. Police investigations prior to arrest are
information being the judicial process not covered
required by law (Ilagan vs. Enrile) h. The rights may be waived, but the
Habeas corpus is proper when a rights to be informed of these rights,
person is being restrained illegally, i.e., to warning, may not be waived
e.g., imprisoned past maximum i. Warning must not only be said, officer
penalty allowed by law (Gumabon vs. must make sure the person arrested
Director of Prisons) understands them specifically
b. Quashal of warrant of arrest j. Present rules
i. Voluntary confessions are
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 77

ii. Test of voluntariness determined criminal justice with the convenience of a person
on a case-to-case basis accused but not yet proven guilty; (b) to relieve
iii. Waiver of rights must not only be the accused of imprisonment, and the State of
with counsel but must be in writing burden of keeping him, pending trial. (6 Am. Jur.
Confessions made without 61)
assistance of counsel are
inadmissible as evidence to Can you imagine without the provision on
incriminate the accused, but they bail? There will be thousands of people who are
may be used to impeach the already in jail and all at the expense of the
credibility of the accused, or they government. So, we have to combine these two
may be treated as verbal the convenience of the accused and the
admission of the accused through convenience of the State.
the testimony of the witnesses
(People vs. Molas) Now, let us go to some political law basic
questions: When there is invasion or rebellion,
the Constitution authorizes the Commander-In-
Chief to suspend the privilege of the writ of
habeas corpus. You can be arrested on suspicion
that you are engaged in rebellion even if there is
Rule 114 no warrant and there is no case.
BAIL Q: Are you entitled to bail? Does the
suspension of the privilege of the writ of habeas
Q: Define Bail.
corpus also carry with it the suspension of the
A: Under Section 1:
right to bail?
SECTION 1. Bail defined. A: That issue bugged the Supreme Court
Bail is the security given for several times prior to the 1987 Constitution where
the release of a person in the SC gave conflicting answers.
custody of the law, furnished
by him or a bondsman, to
guarantee his appearance before In the case of NAVA VS. GATMAITAN, (90
any court as required under the Phil. 172) the SC said, Yes, he is entitled to bail
conditions hereinafter
specified. Bail may be given in once the case has been filed in court. At least 5
the form of corporate surety, out of 9 justices said that. Very close fight! Once
property bond, cash deposit, or the case is filed in court, the right to bail can be
recognizance. (1a)
availed of. So, the right to bail is different from
the suspension of the privilege of the writ of
Ano ba yang bail? Pyansa! As a general rule,
habeas corpus.
once a case is filed in court and there is probable
cause, the judge will issue a warrant. So sa
But when that issue came out during the
presohan ka. Paano yan because you are still
martial law regime, the SC gave a different
presumed innocent? Ang tawag diyan is
answer eh. So, that issue came out again in the
preventive detention. That is why if you are
convicted, that is already credited as advanced
service under Article 29 of the Revised Penal
PADILLA VS. ENRILE (121 SCRA 472). Is there a
right to bail when the privilege of the writ of
Habeas Corpus is suspended? Ang sabi ng
But that will be too tedious. You are already
Supreme Court, NO! because the governments
detained, and you are still presumed innocent.
campaign to suppress rebellion might be
The remedy is you apply for bail you post bail
ineffective. Captured rebels, would no doubt
because bail is, as a rule, a constitutional right.
rejoin their comrades in the field and jeopardize
the success of the government efforts to end the
Q: And what is the primary purpose of bail?
rebellion. That sounds logical. Just imagine, why
A: American jurisprudence says the purpose
are you suspending the privilege of the writ? To
of bail is (a) to combine the administration of
arrest suspected rebels. Pag naaresto, and then
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 78

entitled to bail, balik na naman sila sa mga niya bail muna bago surrender. (Anyway, even if
kasama nila! Anong klaseng campaign ito? That you are charged with a capital crime, you can file
is the reasoning in the case of Buscayno and Ponce a petition for bail.) But he got a lawyer and the
Enrile. lawyer filed a petition for bail in his behalf.

I think that debate is already moot and Q: In this case, can Tato apply for bail?
academic. There is now a direct provision in the A: NO. The SC said, We cannot entertain the
Constitution, Article 3 Section 13 which says that petition for bail because Tato is not in custody!
the right to bail exists and is not suspended by Simple: what is the definition of bail? Security
the suspension of the privilege. Talagang settled given for the release of a person in custody of law.
na. You are even at large then youre asking for bail?
Surrender first bago ka makahingi ng bail.
Another interesting case on bail. These are (Marigbasa vs. Luna, 98 Phil. 466; Feliciano vs.
the cases that cropped up after the 1989 coup d Pasicolan, July 31, 1961)
etat attempt against Cory Aquino because some
of the RAM suspects were detained. Many of Q: What do you mean by in custody of law?
them were detained because of court martial A: In custody of law may mean
charges. They are charged for violating military 1. physical or actual custody; or
law pero nakakulong sila. Some of them applied 2. constructive custody. (Panderanga vs.
for bail. CA, 247 SCRA 41)

Q: Are the same military officers facing PANDERANGA vs. COURT OF

charges before a court martial entitled to bail? APPEALS
SCRA 80) the SC said: NO, the right to bail has
traditionally not been recognized and it is not FACTS: This case originated in
available in the military as an exception to the CDO. The accused was charged of
general rule as embodied in the Bill of Rights. murder non-bailable. So, ayaw
There is no such thing as bail in the military. So, niyang magpahuli. Pero actually, he
thats an exception to the general rule. The right wants to face the case pero dapat lang
to speedy trial is given more emphasis in the may bail. Pero problema niya how can
military where the right to bail does not exist. he file a petition for bail when you are
not even in custody? (In custody, you
The dissenter in the case of Commendador is have to surrender or you must be
Abraham Sarmiento. Diyan mo makikita arrested. Kaya nga ayaw niya yun eh.
pagiging humanitarian lawyer niya. During the As much as possible, pag-surrender
time of Marcos he hates the military [gi-lubot siguro niya, meron ng bail. Then what
siya]. But he was the one who said that they are happened?) He entered the hospital,
entitled to bail [nalamian siguro siya] because sabi niya, may sakit daw and then his lawyer
according to the majority the right to bail has filed a petition for bail before the RTC,
traditionally hot been recognized in the military. We are appearing for the accused for
Ive been looking in the bill of rights and I cannot his petition for bail. We would like to
find that exception. Where did the majority get manifest that he is right now in the
that? You mean to tell me the military before are hospital. Will you please consider him
not citizens of the Philippines anymore? already in the custody of the court?
According to Isagani Cruz who is the ponente in Sabi ng court, [Sure!] OK, lets
that case, They are not entitled to bail as a matter proceed.
of tradition in the military! Sarmiento: No! We
are a government of laws, not a government of ISSUE: Is the accused already in
traditions. Mag-isa lang siya, wala siyang custody? Can the court entertain his
nagawa. petition for bail even if he was not
arrested, and the lawyer said he was
PROBLEM: Tato is charged with a capital in the hospital and the court never
crime. So, no bail. Ayaw mag-surrender. Gusto bothered to ask a policeman to go
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 79

there, check, verify, bantayan mo yung deemed a waiver of his right to

be present thereat. In such
hospital until he gets well? case, the trial may proceed in
absentia; and
HELD: YES, he is already in the (d) The bondsman shall
surrender the accused to the
CONSTRUCTIVE custody of the law. court for execution of the
It may be conceded that he had final judgment.
indeed filed his motion for admission The original papers shall
state the full name and address
to bail before he was actually and of the accused, the amount of
physically placed under arrest. He the undertaking and the
may, however, at that point and in the conditions required by this
section. Photographs (passport
factual ambience thereof, be size) taken within the last six
considered as being constructively and (6) months showing the face,
legally under custody. Thus, in the left and right profiles of the
accused must be attached to the
likewise peculiar circumstances which bail. (2a)
attended the filing of his bail
application with the trial court, for Q: So, for example in the MTC, you are
purposes of the hearing thereof he arrested, natalo ka, you will appeal. How about
should be deemed to have voluntarily pag-appeal mo sa RTC, what will happen to your
submitted his person to the custody of bail?
the law and, necessarily, to the A: Tuloy-tuloy pa rin yan because under
jurisdiction of the trial court which paragraph [a], your bail is effective up to the
thereafter granted bail as prayed for. RTC.
The undeniable fact is that
Panderanga was by then in the Q: Another example: na-convict ka sa RTC
constructive custody of the law. and you want to go to the CA, are you still
entitled to bail?
A: The answer is MAYBE. This is one
Q: What are the types of bail? instance where bail is discretionary.
A: There are four (4) types of bail under
Section 1: Q: But assuming that the court will say, OK,
1. Corporate surety; you are entitled to bail on appeal. What happens
2. Property bond ; now to your bail?
3. Cash deposit; and A: The GENERAL RULE is you get another
4. Recognizance. bail bond because your bail is only up to the level
of the RTC. This is back to the 1964 rules. In the
Q: What are the conditions of a bail? 85 Rules, iba naman the bail is tuloy-tuloy up to
A: Section 2: the CA. Now, RTC level lang. You have to ask
for another bail bond if you want to go further to
SEC. 2. Conditions of the
bail; requirements. All kinds
the CA. So, its back to the 64 rules no?
of bail are subject to the
following conditions: Q: Paragraph [b] you will appear before the
(a) The undertaking shall be
effective upon approval, and
proper court whenever required by the court or
unless cancelled, shall remain these rules. Normally, when is a person required
in force at all stages of the by the court to appear?
case until promulgation of the
judgment of the Regional Trial A: Generally, ARRAIGNMENT or
Court, irrespective of whether PROMULGATION lalo na pag convicted ka. But
the case was originally filed there are others for example, lets read Rule 115
in or appealed to it;
(b) The accused shall appear Section 1 [c]:
before the proper court
whenever required by the court (c) To be present and
of these Rules; defend in person and by counsel
(c) The failure of the at every stage of the
accused to appear at the trial proceedings, from arraignment
without justification and to promulgation of the
despite due notice shall be judgment. The accused may,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 80

however, waive his presence at 1. When bail is a matter of right;

the trial pursuant to the
stipulations set forth in his 2. When bail is discretionary;
bail, unless his presence is 3. When bail is not available.
specifically ordered by the
court for purposes of
identification. x x x x x x As a general rule, bail is a matter of right.
That is a constitutional right. And Section 4 tells
That is one instance where the court may us what are the instances when bail is a matter of
require his presence. His presence there is not a right.
privilege but an obligation.

Q: Now supposed you failed to appear in BAIL AS A MATTER OF RIGHT

court without justification. Like for example, you
escaped, you jumped bail and disappeared? Q: When is bail a matter of right?
What will happen to the case? A: Section 4:
A: Tuloy pa rin according to paragraph [c]
SEC. 4. Bail, a matter of
because that would be a waiver of your right. right; exception. All persons
in custody shall be admitted to
Q: Anong tawag niyan? bail as a matter of right, with
sufficient sureties, or
A: TRIAL IN ABSENTIA pursuant to Section released on recognizance as
14, 2nd paragraph, Article 2 of the Constitution. prescribed by law or this Rule
(a)before or after conviction
by the Metropolitan Trial
Q: A bail bond required the bondsmen to pay Court, Municipal Trial Court,
the fine of the accused, in addition to the usual Municipal Trial Court in
condition. Is this additional condition valid? Cities, or Municipal Circuit
Trial Court, and (b) before
A: NO. The additional condition is void conviction by the Regional
because it made the obligation of the bondsmen Trial court of an offense not
more onerous, in violation of the constitutional punishable by death, reclusion
perpetua, or life imprisonment.
provision that no excessive bail shall be required (4a)
may not impose additional conditions because it
might prevent or render it impossible for the
accused to secure his liberty during the trial. Q: So you are charged in the MTC; no
(Bandoy vs. CFI of Laguna, 14 Phil. 620) conviction yet. So you are still an innocent. Are
you entitled to bail?
Q: A condition in a bail bond states that the A: Yes, as a matter of right.
sureties do not undertake to deliver the person of
the accused if the reading of the sentence is Q: Suppose you have been convicted already,
postponed to a later date, nor do they consent to found guilty by the MTC, maybe sentenced to 2
such extension. Is this condition valid? years imprisonment but you would like to appeal
A: YES, the condition is valid, because it is not to the RTC. While your appeal is going on, can
contrary to law or public policy, and, besides, it you still post bail?
lightens the obligation of the bondsmen, which is A: YES. Whether it is before or after
allowable. Conditions restricting liability on the conviction by the MTC, bail is a matter of right.
bond when accepted by the court and not
contrary to public policy are valid. (People vs. Q: But suppose you are charged in the RTC,
Wong Pun, 48 Phil. 713) for example homicide punishable by reclusion
temporal, are you entitled to bail?
SEC. 3. No release or
transfer except on court order A: YES, it is also a matter of right. For as long
or bail. No person under as the prescribed penalty is not life
detention by legal process imprisonment, perpetua or death, it is a matter of
shall be released or
transferred except upon order right. So, up to reclusion temporal it is a matter of
of the court or when he is right.
admitted to bail. (3a)

Now, we go to these important issues on bail:

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So based on the provision of law, let us try to Q: When is bail discretionary? Meaning, the
outline court may grant bail or may not grant bail.
A: Section 5:
Q: When is bail a matter of right:
A: Bail is a matter of right SEC. 5. Bail, when
discretionary. Upon
1. Before conviction by the MTC, MTC, conviction by the Regional
or MCTC (Section 4 [a]); Trial Court of an offense not
2. After conviction by the MTC (Section 4 punishable by death, reclusion
perpetua, or life imprisonment,
[a]); admission to bail is
3. Before conviction by the RTC of an discretionary. The application
offense not punishable by death, for bail may be filed and acted
upon by the trial court despite
reclusion perpetua or life the filing of a notice of
imprisonment (Section 4 [b]) appeal, provided it has not
4. Before conviction by the RTC of an transmitted the original record
to the appellate court.
offense punishable by death reclusion However, if the decision of the
or life imprisonment when evidence of trial court conviction the
guilt is not strong. (People vs. Donato, accused changed the nature of
the offense from non-bailable
infra) to bailable, the application
for bail can only be filed with
and resolved by the appellate
Under the law, when a person charged in court.
court for example murder, non-bailable man yan x x x x
ba. What is the procedure under Section 8 if he
wants to post bail? He must file an application or Q: Supposed you are charged with homicide.
petition for bail. And that is when the The maximum penalty there is temporal. You are
prosecution will have to present evidence convicted. The court found you guilty of
immediately to prove that the evidence of guilt is homicide. It sentenced you to 20 years
strong. imprisonment and you would like to appeal. Can
you ask for bail?
Q: Suppose after hearing for the petition for A: YES.
bail, the court is convinced that the evidence of
guilt is not strong and the court said so, what Q: What will the court do?
happens now to bail? A: The court may or may not grant. Yan ang
A: Bail becomes a matter of right. (People vs. discretion.
Donato, 198 SCRA 130)
Now, the second sentence is new:
198 SCRA 130 The application for bail may be
filed and acted upon by the trial
court despite the filing of a
HELD: If the offense charged is notice of appeal, provided it has
punishable by death, reclusion not transmitted the original record
to the appellate court. (Section 5,
perpetua or life imprisonment, bail
first paragraph, second sentence)
becomes a matter of discretion. It shall
be denied if the evidence of guilt is This is a reversal of a ruling in the case of
strong. The court's discretion is limited
to determining whether or not OMOSA vs. COURT OF
evidence of guilt is strong. But once it APPEALS
is determined that the evidence of 266 SCRA 281, January 16, 1997
guilt is not strong, bail also becomes a
matter of right. FACTS: The court convicted the
accused for homicide. So temporal.
The accused said: Your honor, we
BAIL AS A MATTER OF DISCRETION intend to appeal this case but may we
be asked to post bail while the appeal
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 82

is going on. The court said, Granted! This is also a recognition and modification of
[discretionary man!]. We will fix your the ruling of Omosa vs. CA, supra.
bail at P50,000. Two days before, the
accused filed a notice of appeal. After In the case of Omosa, the accused was charged
filing the notice of appeal, he applied with murder non-bailable. But after the trial the
for bail which was approved by the court convicted him only for homicide, a lesser
court. offense. And homicide is bailable discretionary
in the court. If he was convicted for murder, wala
ISSUE: Can the court approve the talagang pag-asa. But he was convicted for
bail? homicide. So he applied for bail. And the court
granted the bail. And the SC said the trial court
HELD: NO, because when the should not grant bail because the accused is
accused filed his notice of appeal, from appealing. For all you know on appeal, the
that very moment the court has lost appellate court may reinstate the original charge
jurisdiction over the case. Dapat, for murder because when you appeal, the whole
inuna muna yung approval of bail case is open for review. So, because of the
bago mag-file ng notice of appeal. possibility that the penalty of murder would be
When the court fixed the bail, he has imposed, then there should be no bail. That was
must not yet filed his notice of appeal, the ruling of Omosa vs. CA.
so the court has the power to fix the
bail. The trouble is he immediately Now, of course it is now modified in the sense
filed a notice of appeal bago niya ging- that, bail could be granted in that situation
post ang bail. So the court has no more because he was charged with a non-bailable
jurisdiction to approve the bail. It offense but found guilty of bailable offense.
should have been approved by the However, if there is any court which should grant
Court of Appeals. the bail, it should be the CA and not the trial
court. So these are new provisions which were
That is the ruling in the Omosa. Obviously, somehow taken from the ruling in Omosa which
the SC wanted to change it. The application for is also now modified. That is the history of that
bail may still be filed and acted upon by the trial provision.
court despite the filing of a notice that is a
modification of the Omosa ruling Puwede, Alright. Now let us go to the second
provided it has not transmitted the original paragraph:
record. Based on the Omosa ruling, once the
notice of appeal is filed, the trial court has no Should the court grant the
application, the accused may be
more jurisdiction to act on the application for bail. allowed to continue on
provisional liberty during the
But NOW under the NEW RULES, puwede pendency of the appeal under
the same bail subject to the
pa even if there is already a notice of appeal on consent of the bondsman.
the condition that the records are still with the (Section 5)
RTC. If the records are already in the appellate
court, you better apply for bail before the Court That is more or less an exception to Section
of Appeals. 2[a] that we already discussed. When you are
charged in the RTC and you post bail, the bail is
Now the next sentence good up to when? The bail is only valid in the
RTC. If you want to appeal, and the court grants
However, if the decision of bail on appeal, you have to post another bail.
the trial court conviction the
accused changed the nature of
the offense from non-bailable But this provision grants the court the
to bailable, the application authority to say, Alright, your bail which you
for bail can only be filed with
and resolved by the appellate posted here will continue. Nasa court yan kung
court. (Section 5, first gustong ipatuloy. Puwede rin yun. Ok. We will
paragraph, last sentence) continue, subject to the consent of the bondsman.
That is now the condition. The bondsman may
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 83

say, Delikado na ito, baka ma-convict na ito. committed an offense while under probation,
Mamaya baka lumayas na ito at tumakbo, patay parole or conditional pardon; or when the
na ako. Ako ang magbabayad. circumstances of the case indicates the probability
of flight (there is a risk ba!); or there is an undue
Alright, let us go now to the next sentence: risk that the you might commit another crime
during the pendency of the appeal, the court will
If the penalty imposed by not grant the bail. The discretion there will not be
the trial court is imprisonment
exceeding six (6) years, the in your favor. If the court has already granted, the
accused shall be denied bail, bail will be cancelled. Take note of that.
or his bail shall be cancelled
upon a showing by the
prosecution, with notice to the Q: When is bail discretionary?
accuse, of the following or A: Based on that provision, after conviction by
other similar circumstances: the RTC of an offense not punishable by death,
(a) That he is a recidivist,
quasi-recidivist, or habitual reclusion perpetua or life imprisonment, provided
delinquent, or has committed the case does not fall under Section 5, third
the crime aggravated by the paragraph [a]-[e] of the same law because once
circumstance of reiteration;
(b) That he has previously the case falls under any of these, no bail even if it
escaped from legal confinement, is a matter of discretion.
evaded sentence, or violated
the conditions of his bail
without valid justification; Take note of the second instance bail as a
(c) That he committed the matter of discretion. The first instance is when
offense while under probation,
parole, or conditional pardon;
bail is a matter of right Section 4. When is bail
(d) That the circumstances discretion Section 5. Yung Section 4, walang
of his case indicate the problema, that is absolute even if you are a
probability of flight if
released on bail; or
(e) That there is undue risk
that he may commit another CASE: The accused was charged with
crime during the pendency of
the appeal.
homicide, there was no conviction yet. And then
The appellate court may, bail. He jumped bail lumayas! But he was
motu proprio or on motion of arrested again. When arrested apply na naman
any party, review the
resolution of the Regional
for bail. Binigyan na naman ng bail. After a few
Trial Court after notice to the months, layas na naman. He escaped again.
adverse party in either case. Nahuli na naman. And then he applied for bail
for the third time. This time, sabi ng judge,
Ayaw ko na. Because of your character, di na
Alright. Let us go back to the basic:
puwede for jumping bail twice already. I will not
grant you bail. And he questioned it before the
What is the jurisdiction of the RTC? The
court. Is the denial of bail correct because of the
penalty is 6 years and 1 day up to death.
past record of the accused?
The SC said NO because the bail is a matter
If the penalty is prision mayor to reclusion
of right. He falls under Section 4 there. Wala
temporal [6 yrs and 1 day to 20 years] yan, sa
pang conviction. Even if he jumps bail 100 times
phrase na yan, bail could be granted on appeal
you cannot deny him bail for as long as the crime
but it is discretionary. However, even if the bail
is not punishable by perpetua to death. (Sy Guan
is granted the prosecution tells the court, Judge,
vs. Amparo, 79 Phil. 670; People vs. Alano, 81
this guy was found guilty of homicide and you grant
Phil. 19)
bail. Iba pala ito eh because he is a recidivist, or etc or
any of the conditions mentioned in [a] [e], the
Q: What is the remedy to this kind of
court will now cancel the bail.
accused? Remedy?
A: Taasan mo ang bail. So magkano bail mo
So bail is discretionary provided it will not
dati? P30,000? Alright, ngayon P70,000 na!
fall under [a], [b], [c], [d], or [e]. You are a
Tingnan natin kung tatakbo pa yan. [putulin kaya ang
recidivist; you are habitual delinquent; you have
paa?] Previous abscondence or escape is not a
previously escaped from a confinement; you have
ground for the denial of the bail; it merely gives
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 84

the court discretion to increase the amount of the Bail is discretionary because of this paragraph 3
bond as will reasonably tend to assure the if the penalty imposed by the trial court is
presence of the accused. (Sy Guan vs. Amparo, 79 imprisonment exceeding 6 years the accused
Phil. 670; People vs. Alano, 81 Phil. 19) should be denied bail or bail should be cancelled
upon showing by the prosecution with notice of
Now, I am amused by what happened in the accused of the following. Therefore, bail
Section 5. Did you hear the promulgation of the could be granted because the penalty is exceeding
Robillo case one month ago? I dont know how 6 years.
many were convicted. I think 3 or more were
convicted. One of them is a radioman. I know That implies that bail is discretionary because
where he hangs around. One day before the in Section 5, the heading is Bail, when
promulgation, he is no longer hanging around. discretionary so hindi cancelled. I said,
He disappeared already, na-amoy na niya siguro. Tingnan mo ang opening paragraph of Section 5
Some were military men. upon conviction of the RTC of an offense not
punishable by death, perpetua or life
They were convicted. At least one of them imprisonment, admission to bail is discretionary.
was acquitted. Many were convicted. The So itong paragraph 3, upon 6 years but less than
penalty was reclusion perpetua. And after the trial perpetua. So up to 20 years. We have to connect
everybody left, including the convicted accused. I paragraph 3 with the first paragraph. Sabi niya
was visiting the jail the following day. The (clerk of court), This is what I know eh. Since I
warden was telling me, What happened to this am new in this job. I cannot insist. Dean I:
case? Since yesterday we were expecting the Sabihin mo sa judge na nagkamali sya. Ako ang
convicted person to be brought here. Convicted nagsabi. And after 2 days, pinacancel niya
eh. (judge).

So I asked the fiscal kung anong nangyari Ive talked that judge. He was my friend
dyan because from what we know, if you are personally. When I see him sabi ko nagkamali ka
found guilty for murder, for example, and man dun ba. Dapat yun, on the spot. Thats why
sentenced to reclusion perpetua on the spot, you everybody is wondering bakit nakaganun yun.
will be sent to jail. Teka muna! Hindi pa final yung Well, that was his first experience with a capital
conviction! Never mind! You can appeal but you heinous crime. Dio siya naiiba eh. Hes not used
are now detained indefinitely. Wala nang labas to trying this kind.
labas yan. From the court room, diretso ka na sa
jail. But the judgment is not yet final? But theres Yung sasabihin mong bail may continue
already the judgment of conviction. Even when that assumes that the penalty is above 6 years but
theres still no of conviction, when the evidence of not more than 20 years. Pag naging perpetua,
guilt is strong, your bail will be denied. Even in wala na. Yung wala pang conviction bail could
the middle or at the start of the case, if the be denied, lalo na pag may conviction na! The
evidence of guilt is strong, bail will be denied lalo evidence of guilt is now strong! Its simple logic.
na kung capital punishment. How much more That is why this provision will be tricky if we do
here when there is already a judgement of not know how to interpret this rule.
conviction?! Logic! simple logic.

And the branch clerk of court, I think you WHEN BAIL IS DENIED
know her Atty. Morales. She called me up in the
office. Sabi niya, Anong nangyari dito? di ba
walang bail yan?. Sabi ko Yes. I wonder bakit SEC. 6. Capital offense
defined. A capital offense is
walang bail. Bakit hindi ikinancel? Kailangan an offense which, under the law
daw i-cancel pa ang bail. That was what the existing at the time of its
judge said. Sabi ko, NO! The bail is automatically commission and of the
application for admission to
cancelled. That is what I said so. bail, may be punished with
death. (6a)
Sabi niya (clerk of court), I was pointing to
the judge Section 5. Eh sabi niya (judge), No.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 85

Take note that the crime is punishable by

DEATH not only at the time of its commission Arestado ka, nakulong ka. Under the law,
but also at the time of the application for bail. The what is the procedure? You file an application for
law uses the conjunction and. C.f. RA 7659 gives bail. And once an application for bail is filed, it is
us a list of capital offenses. now MANDATORY for the court to conduct a
hearing for the prosecution to present evidence to
SEC. 7. Capital offense or prove that the guilt is strong, not guilt beyond
an offense punishable by
reclusion perpetua or life reasonable doubt because the latter is conviction
imprisonment, not bailable. na yan!
No person charged with a
capital offense, or an offense
punishable by reclusion Ang ibig sabihin niyan, mag-sample ka lang.
perpetua or life imprisonment, You present some of the witnesses but not all.
shall be admitted to bail when Sample-an mo lang ba. Parang preliminary
evidence of guilt is strong,
regardless of the state of the injunction ba! You present some of your
criminal prosecution. (7a) evidence. after that, the court will now consider
whether the evidence of guilt is strong or not
This means if the accused is charged with a strong.
crime which is punishable by death, reclusion
perpetua, or life imprisonment, there is NO BAIL Either way the court will grant bail or deny
even at the start of the trial or even before bail tuloy pa rin ang trial! Yaan!
judgment of conviction, provided that the two (2)
conditions are present. Q: What happens now to those witnesses?
Balik na naman sila sa trial?
xxx regardless of the state of the criminal A: NO. Under Section 8, the evidence received
prosecution. Meaning, NO BAIL before during the bail hearing is automatically
conviction. Lalo na pag after conviction! reproduced at the trial. Di na kailangang ulitin
pa. But you can add more witnesses and more
Thats why I told (Atty.) Evalyn Morales na evidence.
ipakita mo [sa judge] yung Section 7 xxx
regardless of the state of criminal prosecution. After that, we will now determine if the
You already found him guilty beyond reasonable accused is guilty or not guilty. Yan na ang guilt
doubt and sentenced him to perpetua, huwag mo beyond reasonable doubt.
sabihing the evidence of guilt is not strong! How
come you convict him?! Yaan! Now, [Atty.] Ceniza had a problem in Davao
Oriental. He told me about it. An offense is, I
Now, this is where lalabas yung application think punishable by perpetua or higher. Then pag-
for bail Section 8: hingi ng bail, sabi ng prosecutor, No objection!
Siguro sabi ng court, No objection? O sige, grant
SEC. 8. Burden of proof in
bail! The prosecutor did not present evidence.
bail application. At the
hearing of an application for Meaning, the prosecutor admits that the evidence
bail filed by a person who is of guilt is not strong wala ng hearing!
in custody for the commission
of an offense punishable by
death, reclusion perpetua, or Puwede ba yan? NO! The SC said that there
life imprisonment, the must be a hearing. Even if the prosecution will
prosecution has the burden of
showing that evidence of guilt
not want to present evidence, the court must
is strong. The evidence require a hearing. And the court cannot dispense
presented during the bail with the hearing.
hearing shall be considered
automatically reproduced at the
trial but, upon motion of Lets go to some decided cases.
either party, the court may
recall any witness for
additional examination unless
the latter is dead, outside the [Adm. Matter No. RTJ-95-1286]
Philippines, or otherwise March 2, 1995
unable to testify. (8a)
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 86

HELD: Although the Provincial Meaning, if you grant or deny bail, may court
Prosecutor had interposed no order yan. Kailangang i-summarize mo ang
objection to the grant of bail to the evidence. then you state why you believe it is
accused, respondent judge should strong or it is weak. Otherwise the judge is
nevertheless have set the petition for administratively liable for not complying with the
bail for hearing and diligently requirement.
ascertained from the prosecution
whether the latter was not really
contesting the bail application.
He should have called a hearing AURILLO vs. FRANCISCO
for the additional reason of taking into 235 SCRA 283
account the guidelines in Rule 114 in
fixing the amount of the bail. Only HELD: In a hearing for
after satisfying himself that the petition for bail, affidavits will not
prosecution did not wish to oppose suffice. Witnesses must be present
the petition for bail for justifiable to testify. Affidavits will suffice
cause (e.g., for tactical reasons) and only when it determines probable
taking into account the factors case for the purpose of whether or
enumerated in Rule 114, sec. 6 for not to issue search warrant. The
fixing bail should respondent judge judge has the personal duty of
have granted the petition for bail and calling the witnesses one by one to
ordered the release of the accused. hear them for or review the
evidence, i.e. affidavits presented
Assuming na sabi ng prosecution, for tactical at the fiscals office.
reason, we will not object. The court will still have Verily, it was patent error for
to conduct a hearing kung pila ang bail. Yaan! him to base his order granting bail
You still have to conduct a hearing. You look at merely on the supporting
Section 9 Amount of bail; guidelines. In affidavits attached to the
determining how much is the bail, may mga information since those were
guidelines eh! So if we will grant bail, at least we merely intended to establish
will have to find out how much. These guidelines probable cause as basis for the
must be met. So you still have to conduct a issuance of an arrest warrant, and
hearing. not to control his discretion to
deny or grant bail in all situations


January 18, 1995 BELMONTE
October 27, 1994
HELD: A hearing, in the nature of
a summary proceeding entailing HELD: Even if the prosecution
judicial determination is required fails to adduce evidence in opposition
where the grant of bail is addressed to to an application for bail of an
the discretion of the court. The accused, the court may still require
prosecution should be given the that it answer questions in order to
opportunity to adduce evidence ascertain not only the strength of the
thereat after which the court should state's evidence but also the adequacy
then spell out at least a summary or of the amount of bail.
resume of the evidence on which the
order, whether it be affirmative or So kahit na sabihin pa ng prosecution that it is
negative, is based. Otherwise, the not opposing in the application of the bail, sabi ng
order is defective or voidable. SC: Ah, hindi puwedee! The court will have to
ask the prosecution, why are you not opposing?
Yaan! Whether to grant or deny bail, a hearing is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 87

a 100% requisite. Otherwise the order granting or bail hearing would be to render a
denying bail is defective, and the judge may lose decision. That would defeat the
his job. purpose of the hearing for bail.

ISSUE: #2: Whether or not Bravo,

Lets go to this important question: Jr. is entitled to bail.

Q: For bail to be denied, what are the HELD: YES. Although the
requirements? presentation of aggravating and
A: Under the law: mitigating circumstances is NOT
1. the evidence of guilt is strong; allowed, the SC said, However, we
2. the crime is punishable by death, cannot close our eyes to the fact that
reclusion perpetua or life imprisonment; when Bravo, Jr. committed the crime
3. [based on jurisprudence] if the he was only 16 years old. Normally,
accused is convicted in all probability we close our eyes, but in this case, we
the penalty will also be death, reclusion cannot close it because he alleged it. As a
perpetua or life imprisonment. matter of fact, his birth certificate was
attached to this petition and the
prosecution DID NOT challenge his
So you have to look at the probable penalty. minority. Since the plea of minority is
This principle has been illustrated in the case of already before us and the accused did
not challenge it, we cannot close our
BRAVO, JR. vs. BORJA eyes to the fact that even if we fin him
134 SCRA 466 guilty, the penalty to be imposed
would not be reclusion perpetua or
FACTS: The accused was charged death but lower. Since the probable
with murder perpetua to death penalty is not death or perpetua, then
talagang non-bailable yan. The he is entitled to bail as a matter of
accused filed a petition for bail where right.
the case is pending on the argument
that when he committed a crime, he
was only 16 years old. He attached his Q: So what are the principle points to
birth certificate in the application for remember in the case of Bravo, Jr?
bail. Sabi niya, if found guilty, the A: The following:
penalty is automatic one (1) degree 1. that in a petition for bail there should
lower so, temporal. The worst that be no evidence of any aggravating or
will happen to him is temporal. mitigating circumstances. It should
Therefore, bail now becomes a matter not be presented in a petition for bail.
of right. This should be presented during the
ISSUE #1: In the hearing for bail, 2. however, despite the fact that it should
should the court allow the not be presented, if it is alleged and
presentation of evidence of mitigating presented there and the prosecution
or aggravating circumstances? did not dispute it, the court should
consider it just the same; and
HELD: NO. Bravo, Jr. is wrong. In 3. even if the accused is charged with a
the hearing for a petition for bail, the crime punishable by death, perpetua or
presentation of aggravating and life imprisonment and the evidence of
mitigating circumstances is NOT guilt is strong, if the probable
covered because if the court will imposable penalty is less than perpetua,
required the presentation of said bail becomes a matter of right.
circumstances, then there would be a
need for a trial on the merits of the
case. All the court has to do after the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 88

PEOPLE vs. CALO 1. Before conviction by the MTC, MTC,

186 SCRA 620 [1990] or MCTC;
2. After conviction by the MTC;
FACTS: Three (3) people were 3. Before conviction by the RTC of an
accused of murder for the death of the offense not punishable by death,
victim. The prosecution reclusion perpetua or life imprisonment;
recommended no bail. After a hearing and
to determine whether the evidence of 4. Before conviction by the RTC of an
guilt is strong, the trial court issued offense punishable by death reclusion
the order granting bail. The son of the or life imprisonment when evidence of
victim went to the SC questioning the guilt is not strong. This is because once
order granting the bail of the accused. the court finds that the evidence of
guilt is strong, bail becomes a matter
ISSUE: Whether or not the son of of right.
the victim has sufficient legal
personality to question the order Q: When is bail DISCRETIONARY?
granting bail? (Normally, if there is A: Bail is discretionary after conviction by the
anyone who should question it, it RTC of an offense not punishable by death,
should be the Solicitor General reclusion perpetua, or life imprisonment provided,
representing the people of the the case does not fall under the 3rd paragraph of
Philippines) Section 5 [a] [e].

HELD: While the rule is, only the Q: When shall bail be DENIED?
Solicitor General may represent the A: The bail shall be denied under the
People or the State in criminal following instances:
proceedings pending in this Court and 1. before conviction by the RTC of an
the Court of Appeals, the ends of offense punishable by death, reclusion
substantial justice would be better perpetua or life imprisonment when the
served, and the issues in this action evidence of guilt is strong;
could be determined in a more just, 2. after conviction by the RTC and the
speedy and inexpensive manner, by penalty imposed is death, reclusion
entertaining the petition at bar. As an perpetua or life imprisonment. He can
offended party in a criminal case, appeal but in the meantime, there is
private petitioner has sufficient no bail; and
personality and a valid grievance 3. after conviction by the RTC where the
against the judge's order granting bail penalty imposed is imprisonment
to the alleged murderers of his exceeding 6 years but no more than 20
(private petitioner's) father. years, and the case falls under Section
5 [a] [e].

So, the case of Calo was considered an So, recidivist, or you escaped from
exception because he is also an aggrieved party confinement, or there is undue risk, etc. ayan!
the aggrieved parties are the People and the Pagnahulog ka diyan, bail shall not be granted.
family of the victim. So in this case, the son is also And this is where the question of Ms.
an aggrieved party. Masepequea will come in:

So based on what we have gone so far, let us Q: Mr. Peloton was charged with a crime
now try to summarize the instances under Rule (sorry kaayo Gay! ) punishable by temporal. He
114 where bail is a matter of right, discretion, or is was convicted but the penalty is 6 years or less
denied. (for instance, there are mitigating
circumstances) and he wants to appeal to the CA.
Q: When is bail a MATTER OF RIGHT: Is it a matter of right or a matter of discretion?
A: Bail is a matter of right A: My view is, it is a matter of discretion but
even if these circumstances (recidivist, etc.) still
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bail can be granted. That is the effect. Whereas, if corporation duly authorized by
its board of directors. (10a)
the penalty is 6 years 1 day to 20 years and he is a
recidivist, etc., bail shall not be granted. But if it is
Q: What do you mean by a property bond?
only 6 years or less, it may be granted although it
A: Section 11:
is not a matter of right.
SEC. 11. Property bond, how
SEC. 9. Amount of bail; posted. A property bond is an
guidelines. The judge who undertaking constituted as lien
issued the warrant or granted on the real property given as
the application shall fix a security for the amount of the
reasonable amount of bail bail. Within ten (10) days
considering primarily, but not after the approval of the bond,
limited to, the following the accused shall cause the
factors: annotation of the lien on the
(a) Financial liability of certificate of title on file
the accused to give bail; with the Registry of Deeds if
(b) Nature and circumstance the land is registered, or if
of the offense; unregistered, in the
(c) Penalty for the offense Registration Book on the space
charged; provided therefore, in the
(d) Character and reputation Registry of Deeds for the
of the accused; province or city where the land
(e) Age and health of the lies, and on the corresponding
accused; tax declaration in the office
(f) Weight of the evidence of the provincial, city and
against the accused; municipal assessor concerned.
(g) Probability of the Within the same period, the
accused appearing at the trial; accused shall submit to the
(h) Forfeiture of other court his compliance and his
bail; failure to do so shall be
(i) The fact that the sufficient cause for the
accused was a fugitive from cancellation of the property
justice when arrested; and bond and his re-arrest and
(j) Pendency of other cases detention. (11a)
where the accused is on bail.
Excessive bail shall not be SEC 12. Qualifications of
required. (9a) sureties in property bond.
The qualifications of sureties
Q: When bail shall be granted, how much is in a property bond shall be as
the amount of it? (a) Each must be a resident
A: There are guidelines under Section 9 owner of real estate within the
marami eh! Of course one of the factors is Philippines;
(b) Where there is only one
paragraph [c] penalty for the offense charged. surety, his real estate must be
Thats why the DOJ has a guidelines eh na kapag worth at least the amount of
ganito ang penalty, ganito a ng i-recommend mo. undertaking;
(c) If there are two or more
But that is only one of the factors. The court can sureties, each may justify in
either follow the recommendation or raise it or an amount less than that
lower it because aside from that, marami pa eh expressed in the undertaking
but the aggregate of the
like financial ability of the accused, character or justified sums must be
reputation of the accused, etc. And all these equivalent to the whole amount
guidelines where taken from the ruling in the of the bail demanded.
In all cases, every surety
case of VILLASEOR VS. ABANO (21 SCRA 312) must be worth the amount
specified in his own
Q: What do you mean by corporate surety? undertaking over and above all
just debts, obligations and
A: Section 10: properties exempt from
execution. (12a)
SEC. 10. Corporate surety.
Any domestic or foreign SEC. 13. Justification of
corporation, licensed as a sureties. Every surety shall
surety in accordance with law justify by affidavit taken
and currently authorized to act before the judge that he
as such, may provide bail by a possesses the qualification
bond subscribed jointly by the prescribed in the preceding
accused and an officer of the section. He shall describe the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 90

property given as security, custody of the mayor. Kung may problema, or anytime
stating the nature of his
title, its encumbrances, the you are required to appear, you appear! And the
number and amount of other mayor will promise, Akong bahala dito. Hindi ito
bails entered into by him and tatakbo [puputulan ko ng paa!] Sagot ko ito. Yan ang
still undischarged, and his
other liabilities. The court recognizance word of you word or word of a
may examine the sureties upon responsible person.
oath concerning their
sufficiency in such manner as
it may deem proper. No bail Para bang character loan you borrow
shall be approved unless the money, no collateral and I promise to pay you.
surety is qualified. (13a) Creditor: Believe ako sa iyo. Your word is as
good as a security. OK!
Q: What do you mean by cash deposit?
A: Section 14: Q: Is recognizance possible in all criminal
SEC. 14. Deposit of cash as
bail. The accused or any A: NO. Under the rules, recognizance is only
person acting in his behalf may allowed whenever allowed by law or these Rules. So,
deposit in cash with the if it is not allowed by law or the rules, hindi
nearest collector of internal
revenue or provincial, city, or puwede.
municipal treasurer the amount
of bail fixed by the court, or Q: How do you define recognizance?
recommended by the prosecutor
who investigated or filed the A: A recognizance is an obligation of record,
case. Upon submission of a entered into before some court or magistrate duly
proper certificate of deposit authorized to take it, with the condition to do
and a written undertaking
showing compliance with the some particular act, the most usual condition in
requirements of section 2 of criminal cases being the appearance of the
this Rule, the accused shall be accused for trial. (People vs. Abner, 87 Phil. 566,
discharged from custody. The
money deposited shall be 569)
considered as bail and applied
to the payment of fine and
The next question is, what are the instances
costs while the excess, if any,
shall be returned to the where recognizance is allowed by the law or this
accused or to whoever made the Rules? There are four (4) instances originated and
deposit. (14a)
as mentioned by the SC in the 1997 case of
even before JOVELLANOS came out, the 1985
RECOGNIZANCE Rules says that recognizance is possible if
allowed by law or the Rules. Ano man yang by
Lets go to the 4th type of bail recognizance law or this Rules? So as early as 1985, I was
which are not understood by many how it already gathering the instances when the law or
operates. the rules allow it. And I gathered four (4). Meron
SEC. 15. Recognizance.
pa man sigurong iba, pero di ko pa siguro nakita.
Whenever allowed by law or That is why when the case of Jovellanos came out,
these Rules, the court may tiningnan ko exactly the very four! not more,
release a person in custody on
his own recognizance or that of
not less. [ehem! ehem!]
a responsible person. (15a)
Q: What are the instances when recognizance
So, no money nothing is filed in court. On is allowed by the law or this Rules?
my word of honor, I will appear when the court A: In the case of ESPIRITU VS. JOVELLANOS
requires me to appear. If Im convicted, dont be (280 SCRA 579):
afraid. I will not runaway. Court: Word of honor
ha? [promise ha] OK! Yan! Yan ang recognizance. 1. Under RA 6036 when the offense
charged is for violation of an
Or, instead of going to jail, Payag man ang ordinance, a light felony, or a criminal
mayor na doon na lang daw ako sa kanya. Siya daw offense, the imposable penalty for
ang bahala sa akin. Court: OK. You will be in the which does not exceed 6 months
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 91

imprisonment and/or P2,000 fine, recognized him because he was a graduate of this
under the circumstances provided in school. Anyway Im not in a hurry, I went there.
R.A. No. 6036; So I met this lawyer and I gave my name. ATTY:
Uy! You! We did not see each other for a long time.
2. Rule 114, Section 16, last paragraph: Kumusta? [videoke ta!] DEAN: I was just passing by.
What are you doing now? [na kay fundador diha?] ATTY:
A person in custody for Im practicing law. Karamihan criminal. And I
a period equal to or more
than the minimum of the noticed marami siyang helpers sa bahay niya. So I
principal penalty prescribed asked him, Bat karami mo namang houseboys?
for the offense charged, ATTY: They are not houseboys, Sir. They are all
without application of the
Indeterminate Sentence Law accused! DEAN: Why are they with you? ATTY:
or any modifying Recognizance. DEAN: Ano pala mga crimes
circumstance, shall be nila? ATTY: Murder, Homicide. Na-shock ako!!
released on a reduced bail
or on his own recognizance, Paano nakakuha ng recognizance ito eh hindi
at the discretion of the man puwede yan because recognizance is only
court. possible if allowed by law or the rules. Pero
nobody is complaining naman there.
3. Rule 114, Section 24:

No bail shall be allowed SEC. 16. Bail, when not

after a judgment of required; reduced bail or
conviction has become final. recognizance. No bail shall
If before such finality, the be required when the law or
accused applies for these Rules so provide.
probation, he may be allowed When a person has been in
temporary liberty under his custody for a period equal to
bail. When no bail was filed or more than the possible
or the accused is incapable maximum imprisonment prescribed
of filing one, the court may for the offense charged, he
allow his release on shall be released immediately,
recognizance to the custody without prejudice to the
of a responsible member of continuation of the trial or
the community. In no case the proceedings on appeal. If
shall bail be allowed after the maximum penalty to which
the accused has commenced to the accused may be sentenced is
serve sentence. destierro, he shall be released
after thirty (30) days of
4. Under PD 603 (Child and Youth preventive imprisonment.
A person in custody for a
Welfare Act) in case of a youthful period equal to or more than
offender held for physical and mental the minimum of the principal
examination, trial, or appeal, if he is penalty prescribed for the
offense charged, without
unable to furnish bail and under the application of the
circumstances envisaged in P.D. No. Indeterminate Sentence Law or
603, as amended. any modifying circumstance,
shall be released on a reduced
bail or on his own
Those are the four instances where recognizance, at the discretion
recognizance is allowed. So it is not possible in all of the court. (16a)
Lets go further. As a general rule, when the
This reminds of a former student of this law criminal case is filed, there will be warrant of
school who graduated way back in 1977. He is arrest. If there is warrant of arrest, there must be a
from Agusan. I remember during the mid-80s, I bail either in cash or recognizance. But Section 16
went to Cagayan. Wala pa itong Buda, so I have provides that no bail shall be required when the
to travel via Butuan. On my way back at around 4 law or these Rules so provide. This is now the
P.M., we were riding in a private vehicle, we question:
stopped at a town in Agusan. We took a break
kay kapoy eh. There were numerous big houses Q: What are the instances where despite the
there. And then I saw this attorney so and so and I pendency of the criminal case, the accused is not
required to post bail? Meaning, he is exempt from
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 92

putting up a bail bond because the law or the Any person in custody who is
not yet charged in court may
rules says so. apply for bail with any court
A: The following are the instances: in the province, city, or
municipality where he is held.
1. Under RA 6036 yung mga 6 months
or less under the conditions
Section 17 is another important provision on
mentioned therein;
where to file the bail. Normally, you file the bail
before the same court where you case is pending.
2. When the crime is covered by the
But if the judge is not around, under paragraph
Summary Rules because of Section 16
[a], puwede man any RTC judge, MTC judge, etc.
of Rule 114. When a case is filed under
the Summary Rules, a mere notice is
Q: Suppose your case is in Davao and you are
sufficient. No need of a warrant of
arrested in Manila, can you post bail in Manila?
A: YES because it would be very tedious if
you will be arrested and brought back in Davao
3. Section 9 [b] of Rule 112 (this is a new
just to post bail. And under paragraph [a], it may
be filed with any RTC of such place. And of
x x x x However, if course, the judge there will accept the bail and
the judge is satisfied transmit everything to Davao.
that there is no
necessity for placing the
accused under custody, he Q: What are the instances where the accused
may issue summons instead is only allowed to post bail before the very same
of a warrant of arrest. court where the case is pending?
A: Under paragraph [b], the following are the
So, the court is satisfied that there instances:
is no need to issue a warrant of arrest
maybe because the court believes that 1. if you seek to be released on
you will not run away. In effect, no recognizance, no other judge can grant
bail shall be required. it other the judge where you case is
SEC. 17. Bail, where filed.
(a) Bail in the amount fixed 2. when bail is a matter of discretion. For
may be filed with the court example: Ms. Tormon is accused of a
where the case is pending, or capital offense and she would like to
in the absence or
unavailability of the judge file a petition for bail because the
thereof, with any regional evidence of guilt is not strong, that
trial judge, metropolitan trial should be decided by the very court
judge, municipal trial judge,
or municipal circuit trial where her case is pending.
judge in the province, city or
municipality. If the accused is
arrested in a province, city,
or municipality other than Q: Is the MTC entitled to entertain a petition
where the case is pending, bail for bail?
may also be filed with any A: YES
regional trial court of said
place, of if no judge thereof
is available, with any Q: What are the instances when a MTC is
metropolitan trial judge, entitled to entertain applications for bail?
municipal trial judge, or
municipal circuit trial judge A: The following are the instances:
(b) Where the grant of bail 1. Under paragraph [b], the application
is a matter of discretion, or
the accused seeks to be may be filed in the court where the
released on recognizance, the case is pending, whether on
application may only be filed
preliminary investigation, trial, or
in the court where the case is
pending, whether on preliminary appeal. With this provision, it would
investigation, trial, or seem puwede;
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 93

to docket it. Basta that is my right under the law!

2. MTC can entertain petitions for bail in So you think of your own caption.
cases not cognizable by it filed before it
for purposes of preliminary SEC. 21. Forfeiture of bail.
When the presence of the
investigation. That is why in one case accused is required by the
the SC held that inferior courts (MTC) court or these Rules, his
can entertain applications for bail in bondsmen shall be notified to
produce him before the court on
capital offenses as an incident to its a given date and time. If the
power to conduct preliminary accused fails to appear in
investigation. (Manigbas vs. Luna, 98 person as required, his bail
shall be declared forfeited and
Phil. 466); and the bondsmen given thirty (30)
days within which to produce
3. Section 35 of the Judiciary law (Special their principal and to show why
no judgment should be rendered
jurisdiction of the MTC) the MTC against them for the amount of
may hear and decide petitions for a their bail. Within the said
writ of habeas corpus or applications for period, the bondsmen must:
(a) produce the body of
bail in the absence of ALL the RTC their principal or give the
judges. reason for his non-production;
(b) explain why the accused
Lets go now to the last paragraph of Section did not appear before the court
17: when first required to do so.
Failing in these two
requisites, a judgment shall be
Any person in custody who
rendered against the bondsmen,
is not yet charged in court may
jointly and severally, for the
apply for bail with any court
amount of the bail. The court
in the province, city, or
shall not reduce or otherwise
municipality where he is held.
mitigate the liability of the
bondsmen, unless the accused
This is one provision that has stunned so has been surrendered or is
acquitted. (21a)
many: how can a person be in custody who is not
yet charged in court? He is already in custody
pero wala pa mang kaso? What is contemplated Another important provision is Section 21
under the last paragraph of Section 17 is Rule 112 how bail is forfeited.
Section 7 on INQUEST preliminary investigation
when a person is lawfully arrested without a If you are required to appear in court for an
warrant, he will be detained immediately without arraignment, or for some other reason, and you
preliminary investigation. But if he demands a did not appear, the first step is, upon motion of
preliminary investigation, he can get it but he the prosecution, the court will issue an order to
must waive the effects of Article 125 of the RPC. confiscate the bond and the court will also direct
the bondsmen:
Section 7, Rule 112, last sentence of second 1. to produce the body of their principal
paragraph provides: Notwithstanding the waiver, within 30 days; AND
he may apply for bail and the investigation must be 2. to explain why the accused did not
terminated within fifteen (15) days from its appear before the court when first
inception. So he can ask for bail even if he is not required to do so.
yet charged in court.
Dalawa yan (1) produce him within 30 days,
Q: If you apply for bail with any court in the and (2) explain why you failed to produced him.
province, city or municipality, ano ang title and If you satisfy both conditions, no problem the
number ng petition mo? You cannot put there court will issue an order lifting the order of the
People of the Philippines versus kay wala pa forfeiture.
mang criminal case? What will be your reference?
A: IN RE: PETITION FOR BAIL. So bahala Q: Suppose you failed to comply both or one
na kayo diyan. Bahala na ang clerk of court how of the conditions, what will happen?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 94

A: The court will render judgement on the MANOTOC vs. COURT OF

bond. Meaning, the bonding company is now APPEALS
liable on its bond. 142 SCRA 149

So ang una, order of confiscation or forfeiture ISSUE: How come if you are out
of the bond. The second stage is, if the conditions on bail, you cannot leave the country
are not met, there will be judgment against the without the permission of the court?
bond. So that is the step-by-step application of HELD: A court has the power to
Section 21. prohibit a person admitted to bail
from leaving the Philippines. This is a
SEC. 23. Arrest of accused necessary consequence of the nature
out on bail. For the purpose
of surrendering the accused,
and function of a bail bond. The
the bondsmen may arrest him or, condition imposed upon petitioner to
upon written authority endorsed make himself available at all times
on a certified copy of the
undertaking, cause him to be whenever the court requires his
arrested by a police officer or presence operates as a valid restriction
any other person of suitable on his right to travel. (because this is
age and discretion.
An accused released on bail one of the conditions of the bail bond
may be re-arrested without the you must be available whenever the court
necessity of a warrant if he requires you to appear.)
attempts to depart from the
Philippines without permission Indeed, if the accused were
of the court where the case is allowed to leave the Philippines
pending. (23a) without sufficient reason, he may be
placed beyond the reach of the courts.
Section 23 is an instance of a valid warrantless If the sureties have the right to prevent
arrest. This is a continuation of Section 5 Rule 113. the principal from leaving the state,
more so then has the court from which
For the purpose of surrendering the accused, the sureties merely derive such right,
they can arrest him without a warrant. The and whose jurisdiction over the
bondsmen is his jailer. The theory of bond, lalo na person of the principal remains
yung corporate bond, is that the sureties or unaffected despite the grant of bail to
bondmen becomes you jailer in the eyes of the the latter.
law, and you are their prisoner. They took over The court cannot allow the
the government. In reality, they are not really accused to leave the country without
imprisoning you. You are a free man. And the assent of the surety because in
importante, you put up money for you release accepting a bail bond or recognizance,
you pay premium, back up your commitment the government impliedly agrees that
with property. Parang insurance din ito eh. it will not take any proceedings with
the principal that will increase the
Now halimbawa, nainis sila sa iyo? hindi ka risks of the sureties or affect their
nagabayad ng premium puwede ka man nila remedies against him. Under this rule,
arestuhin bah! The bondsmen can have you the surety on a bail bond or
arrested without a warrant. So diretso ka sa jail. recognizance may be discharged by a
stipulation inconsistent with the
Lets go to last paragraph of Section 23. If you conditions thereof, which is made
are attempting to leave the Philippines, lalo na without his assent.
kung may hold departure order, even if you are
on bail, you can be arrested without a warrant. So, if your own bondsmen have the right to
Now, we will go to this question related to you prevent you, with more reasons with the court
constitutional right to travel: who has the complete jurisdiction over your
person. But even if the court wants to grand you
Q: How do you reconcile Section 23 with the permission to leave, gusto mong mag-tour, but
constitutional right to travel? sabi ng bondsmen, Ayoko nga!, then the court
A: In the 1986 case of has no power to grant your request because the
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bondsmen must also agree. (Manotoc vs. CA, power of the courts to use all means
supra) necessary to carry their orders into
effect in criminal cases pending before
April 8, 1991 In other words, the court has always the
power to prevent an accused from leaving for
FACTS: Silverio was charged abroad. And that constitutional provision was
criminally for violation of Revised never interpreted to limit the power of the court.
Securities Act. For more than two Therefore, Silverio was citing the wrong
years, there were series of provision. The philosophy does not apply to
postponements of the arraignment Silverio. Yaan!
scheduled therein. He could not be
arraigned because he had gone abroad SANTIAGO vs.
several times without the necessary GARCHITORENA
court approval. The prosecution got December 2, 1993
fed up already. So upon motion of the
prosecution, the trial court ordered the FACTS: Several criminal cases
DFA to cancel Silverios passport or to were filed against Miriam Santiago
deny the application to re-new the arising from her tenure as
passport. The Commission on Immigration Commissioner. Now, she
Immigration is also ordered to prevent was interviewed by the media and she
Silverio from leaving the country. said that she is leaving in a few days
Now, according to Silverio, the for abroad because she was offered a
courts orders are unconstitutional fellowship grant by the Harvard
because under the Constitution, courts University. Nabasa ng Sandiganbayan
can impair the right of a citizen to ang interview sa newspaper, Uy!
travel only on the ground of national Aalis! Alright, Hold-Departure Order!
security, public safety or public health. Santiago questioned the order.
Silverio: Is there an issue of national
security? Wala man! Public safety? ISSUE: May a court trying a
Wala man! Public health? Wala rin! criminal case issue a hold-departure
Therefore, you cannot prevent me order motu propio to prevent the
from travelling. accused from leaving the country even
The SC here traced the history of if the prosecution did not file any
that constitutional provision. How did motion to issue such order?
that provision came out?
HELD: YES. The court has the
HELD: The phraseology in the power to issue motu propio a hold-
1987 Constitution was a reaction to the departure order. The hold-departure
ban on international travel imposed order is but an exercise of the courts
under the previous regime when there inherent power to preserve and to
was a Travel Processing Center, which maintain the effectiveness of its
issued certificates of eligibility to jurisdiction over the case and the
travel upon application of an person of the accused.
interested party. (because during the
Marcos era, he created a travel
processing agency headed by General MARCOS vs.
Ver, where every Filipino who wants SANDIGANBAYAN
to travel abroad must be cleared by 247 SCRA (August 9, 1995)
that office.)
Article III, Section 6 of the 1987 FACTS: Criminal charges were
Constitution should by no means be filed against Imelda Marcos. In one of
construed as delimiting the inherent the cases, she was convicted by the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 96

Sandiganbayan. After conviction, she think, followed the only prudent

filed a motion for reconsideration and course available of seeking the opinion
while her motion was p ending, she of other specialists in the field.
filed a motion for leave to travel Indeed, when even in their own
abroad for treatment of hypertensive field of expertise (law) courts are
heart disease, uncontrolled angina allowed to invite amici curiae to shed
pectoris, and anterior myocardial light on recondite points of law, there
infarction. The motion was supported is no reason for denying them
by medical reports prepared by her assistance on other subjects.
physician and cardiologist and other Perhaps the best proof that she is
doctors in Makati Medical Center. not in the group is the fact that she ran
Presiding Justice Garchitorena in the last election for a seat in the
referred the issue to a committee of House of Representatives and won. It
cardiologists from Health Center of may be assumed that she waged an
the Philippines for extra opinion on arduous political campaign but
some questions among which was: Is apparently is none the worse for it.
Marcos condition fatal? Or, Is she in
danger of dying? The committee Meaning, even in law which is already your
submitted a report which was heard in field of expertise, the court are even allowed to
the presence of the two lawyers of seek the help of other lawyers, lalo na when it
Marcos. Report ng committee: she was comes to the field of medicine. And finally after
sick but the evidence not confirm the one year, she ran for congresswoman in Leyte
allegation that Mrs. Marcos is in the high and she won. Of course when you campaign, you
risk group of sudden cardiac death. In have to undergo a terrible schedule of campaigns.
other words, she is sick but she is not Eh bakit buhay ka pa? So in other words, you are
in danger of dyiing. not really in danger of dying. And she is very
With that, the Sandiganbayan, Ah much alive now.
hindi pala malala eh! So, wala! Motion
denied! Marcos went to the SC COJUANGCO vs.
attacking the Sandiganbayan order SANDIGANBAYAN
alleging that the court adopted an 300 SCRA 367 [1998]
unusual and unorthodox conduct by
motu propio conducting a third party FACTS: Cojuangco has several
asking the latter to give an opinion. pending cases before the
Marcos: Nobody is questioning. Bakit ba Sandiganbayan. And there is a travel
itong Sandiganbayan will not take the ban everytime he travels abroad.
words of my doctors? Parang walang
kumpiyansa! ISSUE: Is there a need of hold-
departure orders everytime Cojuangco
HELD: The Sandiganbayan acted travels abroad considering that many
properly. Respondent court had to things happened to Cojuangco?
seek expert opinion because
petitioner's motion was based on the HELD: We resolve in the
advice of her physician. The court negative. The travel band should be
could not be expected to just accept lifted, considering all the
the opinion of petitioner's physician in circumstances now prevailing. It now
resolving her request for permission to becomes necessary that there be strong
travel. The subject lay beyond its and compelling reasons to justify the
competence and since the grant of the continued restriction on Cojuangcos
request depended on the verification right to travel abroad. Admittedly, all
of the claim that petitioner was of Cojuangcos previous requests to
suffering from a medical condition travel abroad has been granted and
that was alleged to be serious and life that Cojuangco has always returned to
threatening, the respondent court, we
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the Philippines and complied with the plea. Once you entered your plea, all the defects
restrictions imposed on him. are considered waived. But the posting of bail
The necessity of further denying alone is not considered as waiver to raise those
Cojuangcos right to travel abroad, issue.
with attendant restrictions, appears
less than clear. The risk of flight is
further diminished in view of
Cojuangcos recent reinstatement as
Chairman and Chief Executive of San
Miguel Corporation, though he has
now more justification to travel so as
to oversee the entire operations of that
company. In this regard, it has to be
conceded that his assumption of such
vital post has come at a time when the
current economic crisis has adversely
affected by international operations of
many companies, including San
The need to travel abroad
frequently on the party of Cojuangco,
to formulate and implement the
necessary corporate strategies and
decisions, could not be forestalled.
These considerations affecting
Cojuangcos duties to a publicly held
company, militate against imposing
further restrictions on Cojuangcos
right to travel abroad.
Rule 115

SEC. 26. Bail not a bar to RIGHTS OF ACCUSED

objections on illegal arrest, lack
of or irregular preliminary
investigation. An application for
or admission to bail shall not bar I know you are not anymore a stranger to
the accused from challenging the many of these provisions because many of them
validity of his arrest or the are already found under the Constitution.
legality of the warrant issued
therefore, or from assailing the
regularity or questioning the Section 1 Rights of
absence of a preliminary accused at the trial In all
investigation of the charge against criminal prosecutions, the
him, provided that he raises them accused shall be entitled to
before entering his plea. The court the following rights;
shall resolve the matter as early
as practicable but not later than a.) To be presumed innocent
the start of the trial of the case. until the contrary is proved
(n) beyond reasonable doubt.
x x x x x

Section 26 is a new provision.

Paragraph [a] emphasizes the degree of proof
in criminal cases.
Q: If you post bail, are you under estoppel to
question the validity of the arrest or the
Why is it in criminal case an accused enjoys
regularity or absence of a preliminary
this presumption? Why does the law give the
accused the presumption of innocence? The SC
A: Under Section 26, NO. The pivotal point is
already answered that the reason is to make the
for as long as you have not yet entered your
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fight at least equal. In criminal cases, all the Yes, you should know why you are there. It is
resources are directed against the accused. It is very awkward that you are charged without even
the accused versus the People of the Philippines knowing what the charge is all about. That is why
so you are fighting the government, and the there is an arraignment to make everything
government has all the resources at its command formal.
the PNP, NBI, etc. Anong laban mo diyan? So at
least para mag-tabla-tabla ng konti ang laban, the Q: Can you waive the right to be informed of
law will give certain presumptions in your favor. the nature and cause of the accusation against
In the case of him?
A: NO. It is not waivable because public
interest is involved in this right, the public having
PEOPLE vs. SEQUERRA an interest in seeing to it that no person is
October 12, 1987 unlawfully deprived of his life or liberty. (U.S. vs.
Palisoc, 4 Phil. 207)
HELD: Confronted by the full
panoply of state authority, the accused There are certain rights of the accused that are
is accorded the presumption of waivable; there are certain rights that cannot be
innocence to lighten and even reverse waived. For example: to be presumed innocent until
the heavy odds against him. Mere the contrary is proved can you waive that? Ah
accusation is not enough to convict OK lang, you can presume me guilty! I dont
him, and neither is the weakness of his think the court will agree with that. That is not
defense. The evidence for the waivable.
prosecution must be strong per se,
strong enough to establish the guilt of And mind you, there was a bar examination
the accused beyond reasonable doubt. in the past, where the examiner asked this
Otherwise, he is entitled to be freed. question among the rights of the accused
But as solicitous as the Bill of outline those which can be waived and cannot be
Rights is of the accused, the waived. So practically you have to know [a] [i].
presumption of innocence is not an Its not only a question of enumerate the rights of
automatic or blanket exoneration. It is the accused but segregate those which can be
at best only an initial protection. If the waived and those which cannot be waived.
prosecution succeeds in refuting the Medyo mahirap yan. But if you have a lot of
presumption, it then becomes the common sense, [meaning, ang common sense is common sa
outlook of the accused to adduce iyo!] malaman mo man ba! To be presumed innocent
evidence that will at least raise that pwede bang ma-waive ito? Mukang hindi
inkling of doubt that he is guilty. Once man... Yaan!
the armor of the presumption is
pierced, so to speak, it is for the c.) To be present and defend
accused to take the offense and ward in person and by counsel at
every stage of the proceedings,
off the attack. from arraignment to
promulgation of the judgment.
So the accused cannot rely forever in the The accused may, however, waive
his presence at the trial
presumption of innocence. This is a disputable pursuant to the stipulations
presumption. The prosecution can destroy that set forth in his bail, unless
presumption by presenting evidence that you are his presence is specifically
ordered by the court for
guilty and once the prosecution has presented purposes of identification. The
that you cannot anymore rely on this absence of the accused without
presumption. It is now your duty to present justifiable cause at the trial
of which he had notice shall be
evidence that you are innocent. considered a waiver of his
right to be present thereat.
b.) To be informed of the When an accused under custody
nature and cause of the escapes, he shall be deemed to
accusation against him. have waived his right to be
present on all subsequent trial
dates until custody over him is
regained. Upon motion, the
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accused may be allowed to So, you can waive your right but not your
defend himself in person when
it sufficiently appears to the duty. That is one of the conditions in the bond
court that he can properly under Rule 114, Section 2 [b] the accused shall
protect his rights without the appear before the proper court whenever so required by
assistance of counsel.
the court or these Rules.
Paragraph [c] is quite important.
Q: Now, what happens if during the trial, the
accused did not show up but he was notified?
This is a right to be present from arraignment
Can the trial proceed without him?
to promulgation right yan eh! I want to be
A: YES, 2nd sentence of paragraph [c]
provides, The absence of the accused without
justifiable cause at the trial of which he had notice shall
Q: But technically, do you have the obligation
be considered a waiver of his right to be present
to be there?
thereat. This is taken from Article II, Section 14
A: NO. This right is waivable because the law
(2), - Trial in absentia.
says the accused may however waive his
presence during the trial, unless the presence of
But take note that in trial in absentia, it
the accused is specifically ordered by the court
assumes that:
for purposes of identification.
1. the court already acquired jurisdiction
over your person;
This was taken from the case of NINOY
2. you were arrested; and
3. you must first be arraigned. So
where Ninoy was arrested and tried in a military
arraignment is a prerequisite for trial
court and he refused to participate in the
in absentia to apply.
proceedings. And issue now is, can he be forced
by the court to appear? SC: YES, because how can
Q: What is the difference between these two
he be identified if he will not appear? That is why
sentences in [c]: The absence of the accused without
it is now found in the Rules.
justifiable cause at the trial of which he had notice shall
be considered a waiver of his right to be present
CARREDO vs. PEOPLE thereat and when an accused under custody
183 SCRA 273 escapes, he shall be deemed to have waived his right to
be present on all subsequent trial dates until custody
ISSUE: After arraignment he can over him is regained?
waive his presence during the trial, A: In the first sentence, the accused is absent
but can he be ordered arrested by the without justifiable cause during the particular
court for an appearance, upon trial date, and so the trial may continue. But he
summons to appear for purposes of can still appear in the next trial. He only waived
identification? his right to be present on that date but he has not
HELD: YES. Waiver of waived his right to be present on subsequent trial
appearance and trial in absentia does dates. He has not waived his right to present
not mean that the prosecution is evidence.
thereby deprived of its right to require In the second sentence, iba eh. You escaped or
the presence of the accused for you jumped bail. You are not only waiving your
purposes of identification by its right to be present on this date but on all
witnesses which is vital for the subsequent dates. And therefore, there can be a
conviction of the accused. Such waiver judgment against you when the prosecution rests.
of a right of the accused does not
mean a release of the accused from his This trial in absentia was explained by the SC
obligation under the bond to appear in in the case of
court whenever so required. The
accused may waive his right but not
his duty or obligation to the court. PEOPLE vs. AGBULOS
222 SCRA 196 (1993)
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HELD: NO. Definitely, that is not

HELD: The prisoner cannot by the meaning of trial in absentia.
simply escaping thwart his continued Pagtapos na, eh di tapos na! why wait
prosecution and possibly eventual for the accused? However, there are
conviction provided that: questions. Does an accused, who has
1. he has been arraigned; been duly tried in absentia retain his
2. he has been duly rights to present evidence on his
notified of the trial; and behalf and to confront and cross-
3. his failure to appear is examine witnesses who testified
unjustified. against him? The court said that,
Upon the termination of a trial in
(But how can the prosecution absentia, the court has the duty to rule
establish that the accused has been upon the evidence presented in court.
duly notified of the trial? How can you The court need not wait for the time
notify a person who is hiding? And until the accused who escape from
how can you say that his failure to custody finally decides to appear in
appear is unjustified?) court to present his evidence and
The fugitive is deemed to have cross-examine the witnesses against
waived such notice precisely because him. To allow the delay of proceedings
he has escaped, and it is also this for this purpose is to render ineffective
escape that makes his failure to appear the constitutional provision on trial in
at his trial unjustified. Escape can absentia.
never be a legal justification. His
escape will, legally speaking, operate ISSUE #2: Why is it that an
to his disadvantage as he will be escapee who has been tried in absentia
unable to attend his trial, which will does not retain his right to cross-
continue even in his absence and most examine witnesses and to present
likely result in his conviction. evidence? How come those rights are
HELD: By his failure to appear
GIMENEZ vs. NAZARENO during the trial of which he had
160 SCRA 1 (1988) notice, he virtually waived these
rights. This Court has consistently
FACTS: The accused is arraigned, held that the right of the accused to
then he escaped from jail. The confrontation and cross-examination
prosecution moved for the trial to of witnesses is a personal right and
proceed without him trial in may be waived. In the same vein, his
absentia. So the prosecution presented right to present evidence on his behalf,
all its witnesses, and then it rested and a right given to him for his own
submitted the case for decision based benefit and protection, may be waived
on the prosecutions evidence alone by him. So an escape can be
parang ex-parte ba. The judge said considered a waiver.
NO, we will have to hear the accused.
Trial in absentia means the ISSUE #3: If judgment is rendered
prosecution can present its evidence as to the said accused and chances are
without him but the case will not be you would be convicted, would it not
decided until we catch him because violate his right to be presumed
we have to hear him. The prosecution innocent and right to due process?
went to the SC. HELD: NO, he is still presumed
innocent. A judgment of conviction
ISSUE #1: Is the courts must still be based upon the evidence
interpretation of trial in absentia presented in court. Such evidence
correct? must prove him guilty beyond
reasonable doubt. Also, there can be
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no violation of due process since the abogado. Ako rin! Ayoko ko rin ng abugado! Ill be the
accused was given the opportunity to one to prosecute him! Eh meron mang private
be heard. If the prosecution does not prosecutor? Ah hindi na kailangan ng private
present anything, he would be prosecutor! Siya personal, ako personal din! Can he
acquitted. do that?
A: Lets go back to Rule 110, Section 16 on
Now, the last sentence of paragraph [c]: whether the rights of the accused and the
offended party are same:
Upon motion, the accused
may be allowed to defend Where the civil action for
himself in person when it recovery of civil liability is
sufficiently appears to the instituted in the criminal
court that he can properly action pursuant to Rule 111,
protect his rights without the the offended party may
assistance of counsel. intervene by counsel in the
prosecution of the offense.
Take note that under the first sentence of [c]
he can be present and defend in person and by So their rights are different. The offended
counsel. For example, ayaw niya ng abogado? I party cannot intervene personally. The law will
will defend myself! Anong mangyari diyan? Is the not allow it. He must have a counsel. Sabihin
right to counsel waivable by the accused? YES. niya, Wala man akong pera pang-hire ng private
The right to counsel may be waived by the prosecutor? Eh di yung fiscal! The fiscal will be
accused BUT the waiver must be clear, intelligent the one to come in. That is why we have public
and competent. (People vs. Ben, L-8320, Dec. 20, prosecutors precisely to handle criminal cases.
d) To testify as a witness
in his own behalf but subject
But now, the guideline is clearer the accused to cross-examination on matters
can be allowed to defend himself in person when covered by direct examination.
it sufficiently appears to the court that he can properly His silence shall not in any
manner prejudice him.
protect his rights without the assistance of counsel.
This is the right of the accused to testify on his
Meaning, although he is not a lawyer, parang
own behalf. But he has no obligation to testify. If
marunong and may common sense naman the
you connect this to the next right [e] to be exempt
court will say, Magbasa ka ng Constitution,
to be a witness against himself (that is why you
Criminal Law, Evidence? Accused: Oo! Basahin ko
cannot compel him to testify) once he testifies
lahat yan! Pag-aralan ko! I will defend myself! Ah
on his own behalf, he waives the privilege against
problema mo na yan. And of course, whether he
self-incrimination and he can be cross-examined
succeed we do not know. That is your risk. I think
like any other witness. He cannot say, I will
there is something wrong with that accused.
testify but I refuse to be cross-examined. That would
be unfair no?
Even lawyers when they have cases, they hire
another lawyer. He will not depend on his own
So, you are waiving your right against self-
skills. Eh kung layman ka? I saw that happen. Ah
incrimination if you testify in your own behalf
talagang kawawa ka. Kahit na siguro yung
because the law is clear subject to cross-
prosecutor na pinaka-banga, yariin ka talaga
examination on matters covered by the direct
because he will invoke many rules, laws,
examination. You can be cross-examined on
jurisprudence eh anong malay mo diyan?
matters covered by direct examination. Lets go
back to Evidence.
According to one statesmen, A lawyer who
handles his own case has a FOOL for a client.
Q: What is the rule on cross-examination?
Did you understand that? Meaning: Sino ang
A: Look at Rule 132, Section 6:
lawyer? Lawyer: Ako! Sino naman ang client?
Lawyer: Ako rin! Ah GAGO ka! Upon termination of the
direct examination, the witness
Q: Now, I will expand the question: Sabi ng may be cross-examined by the
adverse party as to any matters
offended party, Alright, ayaw ng akusado na may
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stated in the direct beauty of law in the classroom, and the tragedy of
examination, or connected
therewith, with sufficient law outside! Yaan!
fullness and freedom from
interest or bias, or the Q: Now, what is the effect if the accused does
reverse, and to elicit all
important facts bearing upon not want to testify on his own behalf?
the issue. A: No unfavorable deduction can be drawn
from the neglect or refusal of an accused to
So, masyadong broad eh! You can be cross- testify. (U.S. vs. Luzon, 4 Phil. 343) His silence is
examined on matters or connected with matters in not in any manner prejudice him. (paragraph [d])
the direct examination with sufficient fullness
and freedom, etc. very liberal! It is called the Meaning, if he refuses to testify, that should
ENGLISH RULE on cross-examination. not be taken against him because of his right to
remain silent. He can testify if he wants to. Kung
The AMERICAN RULE on cross-examination ayaw niya, puwede rin. Admission by silence is
is different the witness can be cross-examined not generally applicable. ALTHOUGH there are
ONLY on matters stated in the direct one or two decisions of the SC where it said that
examination. if the evidence presented by the prosecution is
overwhelming, the accused should testify. One of
In the Philippines, we followed the English these cases is the 1998 case of
Rule because of Rule 132, Section 6. However, it
seems the American Rule on cross-examination is PEOPLE vs. DELMENDO
applied, as an exception, when you are talking 296 SCRA 371 [1998]
about cross-examining an accused in a criminal
case because of paragraph [d] subject to cross- ISSUE: If the accused refuses to
examination on matters covered by the direct testify, can it be taken against him?
examination. HELD: General Rule is NO. BUT
the SC said in this case, An adverse
So we follow the American Rule on cross- inference may also be deduced from
examination of the accused in criminal cases. Mas accuseds failure to take the witness
limitado! Sabihin mo sa mga judges yan! stand. While his failure to testify
Maraming hindi alam yan eh, because I knew of a cannot be considered against him, it
graduate here, ginamit niya talaga ang rule. Pag- may however help in determining his
cross-examine ng prosecution sa kanyang cliente guilt. The unexplained failure of the
who is the accused, object siya, Objection! accused to testify, under a
Prosecution: No! This is cross-examination! We are circumstance where the crime
testing the credibility of the accused to testify. Sabi imputed to him is so serious that
niya, No! No! No! We are following the American places in the balance his very life and
Rule on cross-examination of the accused under Rule that his testimony might at least help
115 and you are citing the English Rule the general in advancing his defense, gives rise to
rule under Rule 132! Sabi ng judge, Ano ba yang an inference that he did not want to
American Rule, English Rule? testify because he does not want to
betray himself.
Naloko na! Sabi nung lawyer, Ganito pala ito! An innocent person will at once
What I learned in law school is different from what I naturally and emphatically repel an
see! Talagang ganyan yan. Kailangang masanay accusation of crime, as a matter of self-
kayo diyan. Just like [Atty.] Ceniza. He was preservation, and as precaution
talking to me last week. He was telling me of against prejudicing himself. A
what happened in Davao Oriental in one MTC. persons silence, therefore, particularly
Sabi niya, Ganito! Ganito! Parang niluto man when it is persistent, may justify an
ako?! Talagang niluto ka! Ganyan gud yan diyan inference that he is not innocent. Thus,
sa Davao Oriental they knew each other! So you we have the general principle that
have to get used to it. Kapag matapang ka, file ka when an accused is silent when he
ng kaso. File-an mo silang lahat! That is the should speak, in circumstances where
an innocent person so situated would
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have spoken, on being accused of a There was a tricky question in the Bar exam in
crime, his silence and omission are the past:
admissible in evidence against him.
Accordingly, it has been aptly said PROBLEM: The accused is charged with
that silence may be assent as well as falsification for writing a falsified letter. The
consent, and may, where a direct and prosecution present its evidence that this letter
specific accusation of crime is made, was written by the accused. The accused said,
be regarded under some No, that is not my handwriting. On cross-
circumstances as a quasi-confession. examination, he was asked to write on a piece of
paper as dictated. The defense object on the
ground of violation of the right to self-
And to my mind, that was the risk which incrimination. Rule on the objection.
Erap was taking during the impeachment trial ANSWER: The objection should be overruled.
because his lawyers never agree that Erap will The case is not covered by the right against self-
testify because lalong masisira si Erap kung mag- incrimination. He can be compelled because he
testify siya. Estrada is their greatest nightmare. testified that it is not his handwriting. From that
He is one person who cannot control his mouth moment he waived his right against self-
and once he starts talking, he does not know what incrimination. It is unfair that you say it is not
his saying. your signature and I have no way of telling you
to give me a specimen.
That is why his lawyers are already afraid
that if the second envelope will be opened, the Q: How is the right against self-incrimination
evidence of the prosecution becomes be waived?
overwhelming, and there is no other choice but to A: The privilege is waivable by the accused
Estrada to testify. So hanggat maaga pa, patayin taking the stand and testifying as a witness or by
na! But they were not anticipating that by killing freely answering the incriminating questions put
that evidence, it hastens Estradas downfall! to him. (U.S. vs. Grant, 18 Phil. 122; U.S. vs. Rota,
9 Phil. 426) Or by not objecting.

[e] To be exempt from being Q: What is the reason for the right of an
compelled to be a witness
against himself. accused against self-incrimination?
A: The rule was established on the ground of
This is the right against self-incrimination public policy, because if the accused were required
Nemo tenetur seipsum accusare. to testify, he would be placed under the strongest
temptation to commit perjury, and of humanity,
Take note that the right of the accused against because it would prevent the extortion of
self-incrimination is not limited to testimonial confession by duress. (U.S. vs. Navarro, 3 Phil.
evidence. According to the SC, it refers not only 143) So, if you require him to testify, chances are
to testimonial compulsion but also to production he will lie.
by the accused of incriminating documents and
things. (Villaflor vs. Summers, 41 Phil. 62) So you That is why according to former U.S. SC
cannot subpoena his personal documents. Justice Black, The accused should not be fried by
his own fat. [e di cooking oil!] No sane man will burn
However, supposed you are asked to perform his own shirt nor he will get a stone to hit his own
a mechanical act, for example footprint, Ilagay head. [eh kung gusto ko pala? Anong paki mo?] The privilege
mo nga yang paa mo diyan beh! Lets find out kung against self-incrimination is one of the great
pareho kayo ng size nung footprint. This is not landmarks in mans struggle to make himself
covered. Mechanical lang yan eh physical act. civilized. We do not make even the most
However, to produce specimen signature requires hardened criminal sign his own death warrant or
concentration and intelligence. This is covered by dig his own grave.
the protection. (People vs. Otadora, 86 Phil. 244;
Bermudez vs. Castillo, 64 Phil. 433; Beltran vs. Our own SC also followed that kind of
Samson, 53 Phil. 570) explanation through Justice Reynato Puno in the
1994 case of
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that option if he does not even see the witnesses?

So more or less, that is the reason behind it. To
MAPA vs. SANDIGANBAYAN borrow the language of an American justice
231 SCRA 783 commenting on this issue, It ensures that
convictions will not be based on the charges of
HELD: The days of inquisitions unseen and unknown, hence unchallengeable
brought about the most despicable individuals".
abuses against human rights. Not the
least of these abuses is the expert use Another Justice, Justice Scalla, he is still an
of coerced confessions to send to the incumbent of the Federal Supreme Court,
guillotine even the guiltless. To guard describing this right, he said, It is always more
against the recurrence of this difficult to tell a lie about a person to his face than
totalitarian method, the right against behind his back, and even if the lie is told, it will
self-incrimination was ensconced in often be told less convincingly. Meaning, it is
the fundamental laws of all civilized easier to tell a lie ba against somebody if he is not
countries. in front of you. Pero pagkaharap na, parang
alanganin kang magsinungaling eh. And even if
you still tell a lie, it becomes not so convincing if
(f) To confront and cross-
examine the witnesses against you will lie about a person in front of you. But if
him at the trial. Either party he is not there, you become very persuasive in
may utilize as part of its your talk. These are the psychological reasons
evidence the testimony of a
witness who is deceased, out of behind that.
or can not with due diligence
be found in the Philippines, Q: What are the EXCEPTIONS to the right of
unavailable, or otherwise
unable to testify, given in the accused to confront and examine witnesses
another case or proceeding, against him?
judicial or administrative, A: The following:
involving the same parties and
subject matter, the adverse 1. Second portion of paragraph [f]:
party having the opportunity to
cross-examine him. Either party may
utilize as part of its
evidence the testimony of
Q: Is the right to confront and cross-examine a witness who is
the witnesses against him waivable? deceased, out of or can
A: YES as ruled by the SC in the case of not with due diligence be
found in the Philippines,
GIMENEZ VS. NAZARENO, (160 SCRA 1), such unavailable, or otherwise
right is waived if the accused decides to run unable to testify, given
away, jumps bail, or disappears he is in another case or
proceeding, judicial or
automatically waiving the right to confront and administrative, involving
cross-examine the witnesses against him. the same parties and
subject matter, the
adverse party having the
Q: Now what is the reason behind this right? opportunity to cross-
Why is there such a right? examine him.
A: It is intended to prevent the conviction of
an accused upon mere depositions and affidavits; Sometimes there is no choice.
to preserve the right of the accused to test the Now, one good example where the
recollection of witnesses against him; and to testimony of a witness is admissible
enable the court to observe the demeanor of the even if he does not appear in the trial
witnesses who are testifying. (Dowdell vs. U.S., is when the witness is about to die.
221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413) Malapit ng mamatay, so you need to
take his testimony in advance. In civil
You have taken up Evidence. Those are the cases we call it deposition. In the
important factors for the court to gauge the criminal procedure, deposition is
credibility of witnesses. Demeanor ba their called conditional examination of a
manner of testifying. How can the court exercise
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witness. That is governed by Rule 119

Sections 12, 13, and 15. If there are 11 exceptions to the
hearsay rule, all of them are also
2. when there is a separate civil action exceptions to this. Like dying
filed against the accused by the declaration, how can you cross-
offended party and he made a examine iyung taong patay na. So
reservation there are 11 exceptions to the right to
confront and cross-examine the
Normally, the prosecution witnesses against him which are all
witnesses in the criminal case are also found in the rules on evidence.
the witnesses for the plaintiff in the
civil case. Assuming nauna ang trial
ng civil case, these witnesses testified Q: One last point, does the right to confront
during the trial of the civil case, they and cross-examine the witnesses against you,
were cross-examined by the lawyer of include your right to know their names and
the defendant who is also the accused addresses in advance?
in the criminal case. Now, under the A: NO, the accused has no such right because
law, when the criminal case is tried, the case of the prosecution might be endangered
these witnesses have to testify again in if the accused were to know the prosecution
the criminal case, practically they will witnesses in advance, for known witnesses might
have to repeat their testimony. The be subjected to pressure or cowered not to testify.
trouble is, in the meantime, some of (People vs. Palacio, L-13933, May 25, 1960) So,
these witnesses died. you confront them during the trial, not now.

Q: Can the testimony recorded in

the civil case be now admissible in the (g) To have compulsory process
issued to secure the attendance
criminal case when there is no more of witnesses and production of
confrontation there? other evidence in his behalf.
A: Yes. because that is the
exception, when the testimony of the I think that is self-explanatory, that is one of
witness who is now deceased, given in your rights as an accused. As a matter of fact, the
another case or proceeding, judicial or question has been asked in the bar.
administrative, involving the same parties
and subject matter, the adverse party Q: Suppose my witness is somewhere there in
having the opportunity to cross examine Cagayan de Oro, can I secure a subpoena to
him. compel him when under the rules on subpoena a
witness is not bound if he resides more than 100
As a matter of fact, this is also kilometers?
considered as one of the exceptions to A: That has already been answered in the
the Hearsay Rule. It is the 11th cases of PEOPLE VS. MONTEJO and MILLORCA
exception to the Hearsay Rule. Try to VS. QUITAIN. The SC said that the 100-km
connect this with Rule 130 on limitation (formerly 50 kms.) does not apply
Evidence. How many exceptions are when you are talking of witnesses for the defense
there to the Hearsay Rule? eleven (11) in a criminal case because of the Constitutional
iyan eh starting from dying right to have compulsory process issued to secure
declaration. That is the last exception the attendance of witnesses in his behalf. That
testimony or deposition at a former right cannot be precluded by provisions in the
trial or proceeding. Yaan! That is Rules of Court.
considered as an exception to the right
against confrontation.
(h) To have speedy,
3. The exceptions to the hearsay rule are impartial and public trial.

likewise exceptions to this right of the

accused. (U.S. vs. Gil, 13 Phil. 530) There are actually three rights here:
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 106

1. the right to a speedy trial; dismissal is equivalent to an acquittal

2. the right to an impartial trial; and and there is no way for that case to be
3. the right to a public trial. brought back because it will amount to
double jeopardy. (People vs. Diaz, 94
Q: What do you mean by speedy trial? Phil. 714)
Meaning, no postponements? not even one
postponement? 2. If the court grants the postponement
A: NO. That is not the interpretation. In the everytime the fiscal asks for it, over
case of the protest of the accused, the latters
remedy is mandamus to compel
ALVIZO vs. SANDIGANBAYAN dismissal of the case; (Mercado vs.
220 SCRA 55 Santos, 66 Phil. 215)

HELD: It must not be lost sight of 3. If the accused is restrained of his

that the concept of speedy disposition liberty, his remedy is habeas corpus to
of cases is a RELATIVE term and must obtain his freedom. (Mercado vs.
necessarily be a flexible concept. Santos, 66 Phil. 215; Conde vs. Rivera,
Delays per se are understandably 45 Phil. 650)
attendant to all prosecutions and are
constitutionally permissible with the
monition that the attendant delay Q: When is trial impartial?
must NOT be OPPRESSIVE. [Hindi A: There should be no bias otherwise, the trial
palagi. Pa-minsan-minsan okay lang will not be fair you are not given due process. If
man ba] Hence, the doctrinal rule is the court or the judge has already pre-ordained
that in the determination of whether your guilt. Every litigant is entitled to nothing
or not that right has been violated, the less than the cold neutrality of an impartial
factors that may be considered and judge. (Villapando vs. Quitain, January 20, 1977)
balanced are:
a.) the length of delay; Q: Right to a public trial this is one of the
b.) the reasons for such delay; features of the accusatorial system. What is the
c.) the assertion or failure to reason for public trial?
assert such right by the A: The requirement of public trial is for the
accused; and benefit of the accused, that the public may see
d.) the prejudice caused by the that he is fairly dealt with and not unjustly
delay. condemned, and that the presence of spectators
may keep his triers keenly alive to a sense of
responsibility and to the importance of their
Q: What are the remedies of an accused whose functions. (1 Cooley, Constitutional Limitations,
rights to a speedy trial is being violated because p. 647)
the prosecution keeps on postponing the case?
How do you invoke this right to speedy trial? Meaning, everybody is on their toes. You
A: There are three (3) possible remedies: don't want to commit a mistake eh, mahihiya ka
eh, maraming nanonood. The judge, the
1. The accused should OPPOSE the prosecutor, the witnesses, the defense counsel,
postponement and insist on trial. If the everybody is careful because they are watched by
court denies the postponement and the public. Look at what happened in the
directs the prosecution to proceed and impeachment trial, everybody wants to be careful
cannot do so because he does not have there because, imagine how many millions of
the evidence, the accused should move people are watching you there on T.V. So, pati
for dismissal of the case on the ground ang mga senators di makatulog, some are sleepy
of failure to prosecute or insufficiency no, mapapahiya ka, you are ashamed na makita
of evidence. (Jaca vs. Blanco, 86 Phil. ka ng camera natutulog ka or you are using your
452; Gandicela vs. Lutero, 88 Phil. 299; cellphone.
People vs. Diaz, 94 Phil. 714) The
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 107

I was reading an interview with Davide, he

was asked how he was able to cope with his
hours full concentration iyan eh, because he has
to listen to every question because you do not
know when an objection will come. Senators can
just relax and pretend they are listening. Davide
has to make the ruling. So he has 5 or 6 hours of
full concentration. Katakot-takot daw na bitamina
at kape. [bato?]

Please connect this provision on Speedy Trial

with Rule 119 Section 9 which is a new provision
taken from the Speedy Trial Act. What is the
heading of Section 9 Rule 119? Remedy where
accused is not brought to trial within time limits. So
there is such a provision. When your case will not
move, the accused may question the delay why
his case has not been set for trial. That is a new
provision taken from the Speedy Trial Act.

[i] To appeal in all cases

allowed and in the manner
prescribed by law

There is something you will notice here all

the rights of the accused in this Rule, from [a] to RULE 116
[h], are also found in the Constitution. These are ARRAIGNMENT AND PLEA
all Constitutional rights except the last [i]. The
right to appeal is purely statutory which may be
granted or withheld at the pleasure of the State.
(People vs. Ang Gioc, 73 Phil. 366) The accused must be arraigned before the
court. That is the manifestation of the right of the
accused to be informed as to the nature and cause
of the accusation against him. The procedure is
there in [a].

SECTION 1. Arraignment and

plea; how made. (a) The accused
must be arraigned before the
court where the complaint or
information was filed or
assigned for trial. The
arraignment shall be made in
open court by the judge or
clerk by furnishing the accused
with a copy of the complaint or
information, reading the same
in the language or dialect
known to him, and asking him
whether he pleads guilty or not
guilty. The prosecution may
call at the trial witnesses
other than those named in the
complaint or information.
x x x x x
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 108

You can even ask for a copy of the complaint present such number of witnesses it
and information there, although normally the deems sufficient. Their non-inclusion
lawyers ask for it in advance, they do not merely in the list of witnesses is of no
ask during the arraignment, before the moment. In fact the omission of their
arraignment may kopya na sila. Take note of the names in the list of prosecution
last sentence: witnesses in the information is
commonly practiced for their own
The prosecution may call on protection at least until the termination
the trial witnesses other than
those named in the complaint or of the case.

Have you seen a criminal information? (b) The accused must be

present at the arraignment and
Normally, at the last potion Witnesses for the must personally enter his plea.
prosecution: Aquiatan, Tormon, Salesa, Balite and Both arraignment and plea shall
others. Mayroon man usually iyan and others. be made of record, but failure
to do so shall not affect the
The prosecution will sometimes not name all. So validity of the proceedings.
mayroong reservation.
Q: Now, what happens if a case is tried
Q: Now, can you question that reservation of without arraignment?
the fiscal? If you are the accused, can you A: The GENERAL RULE, that is irregular
question that procedure? the proceedings are tainted with irregularity
A: YES, puwede. Whether it is possible for the because arraignment is MANDATORY. (U.S. vs.
prosecution not to name everybody was the issue Palisoc, 4 Phil. 207). HOWEVER, there was an
in the case of instance where the SC considered the
proceedings as valid where the lawyer of the
PEOPLE vs. DE ASIS accused also did not object the absence of the
December 7, 1993 arraignment. This the case of

HELD: There is nothing that PEOPLE vs. CABALE

could prevent the prosecution from May 8, 1990
presenting witnesses in court not
listed in the information, as it is well FACTS: Nag pre-trial, walang
settled that the court has the arraignment. But the parties presented
undisputed right to call on a witness evidence. And when the case was
whose name does not appear in the list about to end they noticed, Teka muna,
of the fiscal, unless the omission of wala pang arraignment ito, ah? O sige, i-
said witness is intentional and tainted arraign! So, in other words, the
with bad faith. The established rule is accused was arraigned when the trial
that the prosecution may call unlisted was about to end, or I think already
witnesses to testify. ended.
Moreover, the purpose of the
listing of the names of the witnesses in ISSUE: Is the trial valid?
the complaint or information is merely
to avoid the presentation of surprise HELD: What is the purpose of
witnesses and to enable the defense to arraignment? to inform the accused
examine their record, morality and of the nature of the charge against
character, but once placed on the him. Now, if he does not know, how
witness stand, it can no longer be come he was able to participate in the
disputed that the defense has already trial? He was able to cross-examine the
the opportunity to examine the witnesses against him, he was able to
character and credibility of the present witnesses. So, the defect
unlisted witness. became a formal defect.
Finally, it is beyond question, that We find that while the
it is the prosecution's privilege to arraignment of the appellant was
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 109

conducted after the cases had been Q: Now, is there such a thing as arraignment
submitted for decision, the error is by proxy?
non-prejudicial and has been fully A: Wala. The accused must be personally
cured when counsel for the appellant present. He must enter his plea.
entered into trial without objecting
that his client had not yet been
arraigned. Said counsel had also the (c) When the accused refuses
to plead or makes a conditional
full opportunity of cross-examining plea, a plea of not guilty
the witnesses for the prosecution. shall be entered for him. (1a)
There was, therefore, no violation of
the appellant's constitutional right to Q: Halimbawa ayaw mag-enter ng plea?
be informed of the nature and cause of COURT: What do you sayGuilty or Not guilty?
the accusation against him. ACCUSED: No comment. I do not want to say
A: Under paragraph [c], a plea of "Not guilty"
Now, accused are arraigned sa trial when the will be entered, or conditional plea, because a
case is filed in court and about to be tried. Now, plea must be absolute and unconditional.
how about preliminary investigation conducted
by the MTC outside chartered cities, should the I saw such situations before Homicide,
accused be arraigned by the MTC judge? where the accused was arraigned. Siyempre, on
or about something with the use of a knife
Alam mo, I met that kind of situation years stabbed so and so which caused his death.:
ago, in one of the MTCs in the North. There was a COURT: Kasabot ka?
preliminary investigation and then I noticed an ACCUSED: Yes.
arraignment. Actually the case was triable by the COURT: What do you say? Guilty or
RTC. The purpose there (MTC) was only to Not guilty?
determine probable cause. So I asked, Mayroon ACCUSED: Guilty inunahan man
bang arraignment ang preliminary investigation? niya ako ba.
Sabi nung abogado doon, Yes, mayroon. DEAN:
Wala man sa Rules of Court? LAWYER: Iyan According to him, he is guilty. But actually, it
man ang ginagawa ng mga judges dito. In other is the deceased who tried to kill him first. It is
words, MTC judges conduct arraignment in self-defense! so, within the not guilty plea din
preliminary investigation matter of practice yan. Pag-guilty, guilty! Hindi puwede iyung
daw you do not find a provision in the Rules guilty pero may condition so not guilty.
saying yes or no. However, in 1993, I came across Conditional pleas are not allowed. If you do that,
a case where the SC commented on that the case we will enter a plea of not guilty for you.
Now, paragraph [d] of Section 1 is new:
JR. (d) When the accused pleads
guilty but presents exculpatory
224 SCRA 1 evidence, his plea shall be
deemed withdrawn and a plea of
HELD: There is NO such thing as not guilty shall be entered for
him. (n)
arraignment in a Preliminary
Investigation. There is no law or rule
We will understand this more when we read
requiring an arraignment during the
the case of PEOPLE vs. MENDOZA (231 SCRA
preliminary investigation. Under
264). For example: You enter a plea of guilty. But
Section 1, Rule 116 of the Revised
sabi mo, (sometimes this happens eh) may we be
Rules of Court, the arraignment must
allowed to present evidence to show mitigating
be conducted by the court having
circumstances? And then the court will allow
jurisdiction to try the case on its
you. You will present evidence to prove you are
entitled to this or that mitigating circumstance
para magbaba ang penalty.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 110

The private offended party is supposed to

Q: Halimbawa pag-present ng evidence, na appear at the arraignment for purposes of plea
prove na wala pala siyang kasalanan? bargaining. Plea bargaining is explained in Rule
A: Then, under the rules, the plea of guilty 118 and also here in Section 2. Now, what do
is automatically withdrawn, and the court will you mean by this Plea Bargaining?
order the substitution of not guilty because,
when you plead guilty, you are not supposed to We will connect this right away to Section 2:
present evidence to prove your innocence, that is
being inconsistent. But if you do it, then the court
will change it immediately from guilty to not SEC. 2. Plea of guilty to a
lesser offense At
guilty. arraignment, the accused, with
the consent of the offended
Paragraphs [e], [f], and [g] are new: party and prosecutor, may be
allowed by the trial court to
plead guilty to a lesser
(e) When the accused is offense which is necessarily
under preventive detention, his included in the offense
case shall be raffled and its charged. After arraignment but
records transmitted to the before trial, the accused may
judge to whom the case was still be allowed to plead
raffled within three (3) days guilty to said lesser offense
from the filing of the after withdrawing his plea of
information or complaint. The not guilty. No amendment of the
accused shall be arraigned complaint or information is
within ten (10) days from the necessary. (sec. 4, circ. 38-
date of the raffle. The pre- 98)
trial conference of his case
shall be held within ten (10)
days after arraignment. (n)
Plea bargaining mag-tawaran ba! You are
(f) The private offended
party shall be required to charged with murder, homicide na lang [pliiiiiss].
appear at the arraignment for Kung homicide, plead ako guilty para at least
purposes of plea bargaining, mababa ang sentensiya.
determination of civil
liability, and other matters
requiring his presence. In case According to the law if the prosecutor agrees
of failure of the offended and the offended party or the family of the
party to appear despite due
notice, the court may allow the deceased agrees, puwede. Both of them must give
accused to enter a plea of their consent.
guilty to a lesser offense
which is necessarily included
in the offense charged with the So from Robbery, mahulog sa theft. Qualified
conformity of the trial theft, maging simple theft. At least mababa di ba?
prosecutor alone. (cir. 1-89) Or, from attempted homicide to physical injuries
(g) Unless a shorter period na lang. Meaning, tawaran ba! That is allowed
is provided by special law or under the law provided the condition is, with the
Supreme Court circular, the consent of the offended party and the prosecutor.
arraignment shall be held
within thirty (30) days from
the date the court acquires That is why during the arraignment,
jurisdiction over the person of according to the previous section paragraph [f],
the accused. The time of the
pendency of a motion to quash the private offended party shall be required to
or for a bill or particulars or appear for purpose of plea-bargaining.
other causes justifying
suspension of the arraignment
shall be excluded in computing Q: Now suppose the offended party will not
the period. (sec. 2, cir. 38- appear during the arraignment?
A: According to paragraph [f], in case of
failure of the private offended party to appear despite
Lets go to paragraph [f], this is one of the due notice, the court may allow the accused to enter a
important amendments here. plea of guilty to a lesser offense which is necessarily
included in the offense charged with the conformity of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 111

the trial prosecutor alone. So, the consent of the FACTS: The accused was charged
prosecutor would be enough. with homicide. So obviously, he killed
somebody. During the plea
Sabi ngayon ng private offended party, But I bargaining, sabi ng accused, We
did not give my consent. Aba, kasalanan mo yan! would like to plead guilty to the lesser
You should have appeared during the offense of attempted homicide (2
arraignment. Wala ka man, so there is a valid degrees lower). The prosecutor and
plea-bargaining. the widow agreed. So the court
rendered a decision on attempted.
Now, I noticed that the 2000 Rules went back Nagalit ang pamilya ng namatay ang
to the original provision of the 1964 Rules. Under brother, anong klase ito?! The
the 1964 rules, you are allowed to plead guilty to brother of the deceased brought a
a lesser offense provided the lesser offense is letter to Chief Justice Narvasa at that
necessarily included in the offenses charged. time, questioning the judge, Pwede
Murder to homicide; Theft is part of Robbery; ba yan?
Qualified theft, simple theft; from serious to less Of course, according to Judge
serious physical injuries; that is the condition Aujero, Teka muna, under the new
the lesser offense will be included in the offense Rules (citing the 1985 Rules) you can
charged. plead guilty to a lesser offense
whether or not included in the offense
But when the Rules were amended in 1985, charged, and even you, you have to
naiba it became a very controversial provision consider that attempted homicide is
because the 1985 Rules said that, You are related to homicide kaya lang two
allowed to plead guilty to a lesser offense, even if degrees lower. The law is very clear.
not included in the offense charged. Thats why Ano sabi ng Supreme Court? The
it created a lot of problems. Halimbawa, I am Supreme Court gave a lecture.
accusing you of serious physical injuries, you will
plead guilty to slander, there is no connection. HELD: The fact of death of the
But the language of the 1985 Rules as written, victim cannot by simple logic and
puwede. plain common sense be reconciled
with the plea of guilty to the lower
Now, the SC went back to the original offense of attempted homicide.
provision which is necessarily included in the (imagine, namatay, ngayon buhay na?
offense charged. how can you reconcile these two?) The
crime of homicide as defined in Article
After arraignment but before trial, the accused 249 of the Revised Penal Code
may still allowed to plead guilty to said lesser necessarily produces death; attempted
offense after withdrawing his plea of not guilty. homicide does not.
After you are arraigned you can still change your However, the law is not entirely
mind for as along as the prosecution has not yet bereft of solutions in such cases. In
commenced the presentation of evidence. And instances where a literal application of
there is no need of amending the complaint or a provision of law would lead to
information, automatic na yan, less paperworks injustice or to a result so directly in
for the prosecutor. opposition with the dictates of logic
and everyday common sense as to be
Now, lets look at some interesting cases unconscionable, the Civil Code,
decided by the Supreme Court. These cases were particularly Article 10, admonishes
decided before the amendment but we can see the judges to take principles of right and
philosophy is still there. justice at heart. (Meaning, when a
judge decides, do not look only at the
AMATAN vs. JUDGE AUJERO letter of the law, you look at the logic
[Adm. Matter No. RTJ-93-956] of your decision, the sense of right and
September 27, 1995 justice.) In case of doubt the intent is to
promote right and justice. Fiat justicia
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 112

ruat coelum. Stated differently, when a bench stands unique because of the
provision of law is silent or potently absurd result of respondent's
ambiguous, judges ought to invoke a application of the law.
solution responsive to the vehement
urge of conscience. I think he was just censured or fined a
These are fundamental tenets of minimal amount. Di naman sinadya, kaya lang
law. In the case at bench, the fact of pangit ba. Iyan ang sinasabi ko, how do you get
the victim's death, a clear negation of quality judges? That is the big problem yung
frustrated or attempted homicide, malawak ang pag-iisip. Yaan!
ought to have alerted the judge not
only to a possibly inconsistent result
but to an injustice. (In other words, the PEOPLE vs. VILLARAMA, JR.
charge is he died, I will convict him 210 SCRA 226
for attempted homicide which
assumes he did not die, how can you FACTS: The accused is charged
reconcile? Dapat pag-isipan mo yan, with, lets say, murder. Then the case
look at the effects of your decision.) was tried and the prosecution rested.
The failure to recognize such Afterwards, the accused argued, You
principles so cardinal to our body of have not proved any qualifying
laws amounts to ignorance of the law circumstance, so I will not present any
and reflects respondent judge's lack of evidence anymore. I will just plead to
prudence, if not competence, in the a lesser offense of Homicide.
performance of his duties. While it is
true, as respondent judge contends, ISSUE: Can plea bargaining still
that he merely applied the rule to the be entertained at that stage? Because
letter, the palpably incongruous result normally plea-bargaining is done
ought to have been a red flag before the trial. Is that allowed?
alerting him of the possibility of
injustice. The death of an identified HELD: YES. There is nothing
individual, the gravamen of the charge wrong with that, provided the
against the defendant in the criminal prosecution does not have sufficient
case, cannot and should not be evidence to establish the guilt of the
ignored in favor of a more expedient accused for the crime charged. The
plea of either attempted or frustrated only basis for allowing a plea of guilty
homicide. We have held before that if to a lesser offense is nothing more and
the law is so elementary, not to know nothing less than the evidence already
it or to act as if one does not know it, in the record. There is nothing wrong
constitutes gross ignorance of the law. with that procedure.
(Where the law is so basic and you do
not know it or pretend not to know it, Take note also that under Section 1 [f], the
that is gross ignorance of the law.) private offended party should be required to
What happens now to Judge appear in the arraignment precisely because of a
Aujero? Sinabon siya ng SC, Finally, possible plea of guilty to a lesser offense which
every judge must be the embodiment requires his consent. That is why under the new
of competence, integrity and rule in Section 1 [f], if he does not appear, the
independence. A judge should not plea-bargaining can proceed and only the consent
only be aware of the bare outlines of of the prosecutor is necessary. The consent of the
the law but also its nuances and offended party is no longer required according to
ramifications, otherwise, he would not the present rules on criminal procedure, i.e. if he
be able to come up with decisions does not appear.
which are intrinsically fair. (Wala
namang malice. Di naman sinadya or Q: What happens if an accused enters a plea
bad faith that he was paid to do it, so of guilty?
the SC said,) Nonetheless, the case at
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 113

A: The GENERAL RULE is that there would

be no trial anymore. No more presentation of
evidence because the accused has already SEC. 3. Plea of guilty to
capital offense; reception of
admitted the crime. evidence. When the accused
pleads guilty to a capital
Q: What is the implication of a plea of guilty? offense, the court shall
conduct a searching inquiry
A: That the accused is admitting the essential into the voluntariness and full
elements of the crime as charged in the comprehension of the
information, and according to the SC, including consequences of his plea and
shall require the prosecution
the aggravating circumstances. Especially now, to prove his guilt and the
under the new Rules where the prosecution is precise degree of culpability.
mandated to allege also the aggravating The accused may present
evidence in his behalf. (3a)
circumstances. So, as a general rule, judgment of
conviction can proceed immediately.
Q: So when a person pleads guilty to a capital
HOWEVER, according to the SC, even if there
offense, can the court sentence him to death based
is a plea guilty, certain facts alleged in the
on his plea of guilty?
information are not deemed admitted. What are
A: NO. The correct procedure is:
those facts that are deemed not admitted? These
1.) The court shall conduct a searching
inquiry into the voluntariness and full
1.) Facts not alleged in the complaint or
consequences of his plea. The court
must determine whether he really
2.) Mere conclusions of facts;
understood it and its effects;
3.) The jurisdiction of the court. So even if
2.) Even if the accused pleads guilty, the
I plead guilty, I can still question later
court will still require the prosecution
the jurisdiction of the court;
to prove the guilt of the accused. Thus,
4.) The sufficiency of the complaint or
the plea of guilty is not accepted
information is not considered even if
anymore in capital offense. That is
there has been a plea of guilty.
only corroborative because the
prosecution is still required to present
Q: So what happens if I plead guilty and it
turns out there is no crime?
3.) The accused may still present evidence
A: There can be no conviction because the
in his behalf.
sufficiency of the complaint or information is not
admitted by a plea of guilty.
On the other hand, when the accused pleads SEARCHING INQUIRY INTO THE
not guilty, then the issues are joined and the case VOLUNTARINESS AND FULL
is ready for trial. That is the counterpart of an COMPREHENSION OF THE CONSEQUENCE
answer in civil procedure because there is no OF HIS PLEA
Answer in criminal cases. Your plea is your
What do you mean by the court shall conduct a
As already emphasized in some cases, when searching inquiry into the voluntariness and full
you enter a plea of not guilty, you are considered comprehension of the consequence of his plea?
to have waived any previous defect, like lack of Section 3 is actually taken from decided cases,
preliminary investigation or validity of arrest. even before the 1987 Constitution. Prior to the
Those things are deemed cured by entering a plea 1987 Constitution, there were so many people
of not guilty. sentenced to death based only on a plea of guilty.
The SC said, di pwede ito. Thus, all these
Now, going back to the GENERAL RULE, jurisprudence are culled and embodied in Section
when a person pleads guilty, no more trial, he can 3. Of course it became dormant for a while when
be convicted, EXCEPT when he is charged with a the death penalty could not be imposed. But na
capital offense. Lets read Section 3:
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 114

naman eh. Its now back to life [alleluia!] because of created by improvident pleas
the restoration of death penalty. acknowledging guilt, at times
belatedly discovered under the
I remember before, there was even a time judicial rug, if at all.
before the 1987 Constitution, where: The rationale behind the rule is
that courts must proceed with more
JUDGE: Guilty or Not guilty? care where the possible punishment is
ACCUSED: Guilty. in its severest form death for the
JUDGE: Do you understand what you reason that the execution of such a
are doing by pleading guilty? sentence is irrevocable and experience
ACCUSED: Yes. has shown that innocent persons have
JUDGE: Do you understand by pleading at times pleaded guilty. The
guilty, you are admitting all the primordial purpose then is to avoid
elements of the crime as alleged improvident pleas of guilt on the part
in the complaint? of an accused where grave crimes are
ACCUSED: Yes. involved since he might be admitting
JUDGE: And still you are pleading his guilt before the court and thus
guilty? forfeit his life and liberty without
ACCUSED: Yes. having fully understood the meaning,
significance, and consequences of his
Sabi ng SC: Kulang ang mga tanong mo! Why plea. Moreover, the requirement of
are you asking those questions? What does the taking further evidence would aid the
layman know about those elements of the crime? Supreme Court on appellate review in
Use simple language para maintindihan niya! determining the propriety or
impropriety of the plea.
Now, if we follow the jurisprudence after the
1987 Constituition, lalung mahirap! Ito yung
mahirap shall conduct a searching inquiry into the PEOPLE vs. ALICANDO
voluntariness and full comprehension of the 251 SCRA 293
consequence of his plea. That is a very general term
and we do not really know what is really the HELD: To show the voluntariness
effect of that or its scope. If we will follow all the of the plea of guilt of the accused and
guidelines of the SC, it would seem that all judges that the courts questions demonstrate
will not pass the test of conducting a searching the accused full comprehension of the
inquiry. There are some tests like the case of consequences of his plea, the records
must reveal information about the
PEOPLE vs. ALBERT personality profile of the accused
251 SCRA 136 which can serve as a trustworthy
index of his capacity to give a free and
HELD: The controversy over informed plea of guilt. The age, socio-
improvident pleas of guilty dates back economic status and educational
to the early years of the American background of the accused must be
administration, developed into a furor plumbed by the trial court.
over the succeeding years, subsided
during the martial law regime, and So, you must get the personality profile of the
was sidelined but occasionally accused the age, socio-economic status as well
invoked when the 1987 Constitution as his educational background. Now, are the
proscribed the imposition of capital judges doing that? I dont think so.
punishment. With the return of the
death penalty for heinous crimes, it is PEOPLE vs. ESTOMACA
high time for the trial courts to review 256 SCRA 421 (1996)
and reflect upon the jurisprudential
and statutory rules which evolved HELD: Although there is no
over time in response to the injustice definite and concrete rule as to how a
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 115

trial judge may go about the matter of supporting evidence for a finding of
a proper "searching inquiry," it would culpability. (So, baliktad no?) In short,
be well for the court, for instance, to once an accused, in a charge of capital
require the accused to fully narrate the offense enters a plea of guilty, a
incident that spawned the charges regular trial shall have to be
against him, or by making him reenact conducted. Just the same as if no such
the manner in which he perpetrated plea of guilty was not entered. The
the crime, or by causing him to furnish only effect of a plea of guilty, if ever, is
and explain to the court missing to serve as an additional mitigating
details of significance. circumstance in case the penalty
The trial court should also be imposable is less that an indispensable
convinced that the accused has not penalty and if the guilty plea is
been coerced or placed under a state of entered before the prosecution starts
duress either by actual threats of to present evidence.
physical harm coming from
malevolent or avenging quarters and So if we follow that guideline: MURDER, or
this it can do, such as by ascertaining other heinous crime; Guilty! Disregard it! Trial!
from the accused himself the manner So, bale wala yung plead of guilty because you
in which he was subsequently brought still have to conduct a trial just the same.
into the custody of the law; or whether
he had the assistance of competent
counsel during the custodial and SEC. 4. Plea of guilty to
non-capital offense; reception
preliminary investigations; and, of evidence, discretionary.
ascertaining from him the conditions When the accused pleads guilty
under which he was detained and to a non-capital offense, the
court may receive evidence from
interrogated during the aforestated the parties to determine the
investigations. Likewise, a series of penalty to be imposed. (4)
questions directed at defense counsel
as to whether or not said counsel had Q: Can there be reception of evidence if the
conferred with, and completely accused enters a plea of guilty to a non-capital
explained to the accused the meaning offense?
of a plea and its consequences, would A: YES. There is no need for the presentation
be a well-taken step along those lines. of evidence but if the court wants it, pwede rin,
the court can till require it. That is why reception
So, the judge must be very, very patient in of evidence is discretionary to determine the
conducting a searching inquiry. Kung sundin mo penalty to be imposed.
ito, it may take one or two days. Just take note
that we are talking about capital offense. PEOPLE vs. MENDOZA
231 SCRA 264
According to one commentator:
Before, the plea of guilty constituted FACTS: The accused was charged
the main evidence of guilt and the with Robbery before the RTC of
evidence taken during the further Malaybalay, Bukidnon. During the
inquiry was merely to aid the trial arraignment, the accused pleaded
court in exercising its discretion as to guilty. Instead of pronouncing
whether the lighter or graver penalty judgment, the court conducted trial.
is to be imposed. That is the original The prosecution failed to present
principle. But under the new evidence that the accused is guilty of
procedure, a plea of guilt is only a the crime, so Judge Mendoza acquitted
secondary basis, the main proof being the accused. The prosecution argued
that which the court requires the that the judge should not have
prosecution to establish the guilt of the acquitted him because he already
accused. The plea of guilty by the pleaded guilty.
accused can only be used as
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 116

ISSUE: Was the acquittal of the the court shall inform the
accused of his right to counsel
accused proper? and ask him if he desires to
have one. Unless the accused is
HELD: YES. Under the Rules, allowed to defend himself in
person or has employed counsel
when the accused pleads guilty to a of his choice, the court must
non-capital offense the court may assign a counsel de officio to
receive evidence from the parties to defend him. (6a)
determine the penalty to be imposed.
This rule is at most directory. Section 6 should be read with the ruling of the
Was the judge correct? It will SC in the leading case of PEOPLE VS HOLGADO
certainly be a clear abuse of discretion (85 Phil. 752). In the said case, SC enumerated the
on the part of the judge to persist in duties of the court when the accused appears
holding the accused bound to his before it without a lawyer. The following are the
admission of guilt and sentencing him duties of the court:
accordingly when the totality of the
evidence points to his acquittal. There 1.) The court must inform the accused
is no rule which provides that simply that it is his right to have an attorney
because the accused pleaded guilty to before being arraigned;
the charge that his conviction 2.) After giving him such information, the
automatically follows. court must ask him if he desires the
However, there is something aid of an attorney;
wrong here because the records will 3.) If he desires but is unable to employ
show that he pleaded guilty and yet an attorney, the court must assign an
he was acquitted, so let us harmonize attorney de oficio to defend him; and
the record. The correct procedure, 4.) If the accused desires to procure an
according to the SC, is for the judge to attorney of his own, the court must
order the withdrawal of the plea of grant him a reasonable time therefor.
guilty and substitute it with a plea of
SEC. 7. Appointment of counsel
not guilty. de oficio. The court, considering
the gravity of the offense and the
difficulty of the questions that
may arise, shall appoint as counsel
This principle has been embodied in Section de officio such members of the bar
1[d] When the accused pleads guilty but presents in good standing who, by reason of
exculpatory evidence, his plea shall be deemed their experience and ability, can
competently defend the accused. But
withdrawn and a plea of not guilty shall be entered for in localities where such members of
him. (n) the bar are not available, the
court may appoint any person,
SEC. 5. Withdrawal of resident of the province and of
improvident plea of guilty. good repute for probity and
At any time before the judgment ability, to defend the accused.
of conviction becomes final, (7a)
the court may permit an
improvident plea of guilty to SEC. 8. Time for counsel de
be withdrawn and be substituted oficio to prepare for arraignment.
by a plea of not guilty. (5) Whenever a counsel de oficio is
appointed by the court to defend
the accused at the arraignment, he
Q: Can a plea of guilty be withdrawn? shall be given a reasonable time to
A: YES. consult with the accused as to his
plea before proceeding with the
arraignment. (8)
Q: Suppose there is already a judgment of
conviction, can he still withdraw? SEC. 9. Bill of particulars.
The accused may, before
A: YES, as long as the judgment of conviction arraignment, move for a bill of
is not yet final. particulars to enable him properly
to plead and prepare for trial. The
SEC. 6. Duty of court to motion shall specify the alleged
inform accused of his right to defects of the complaint or
counsel. Before arraignment,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 117

information and the details Upon motion of the accused

desired. (10a) showing good cause and with
notice to the parties, the
court, in order to prevent
Section 9 is similar to Rule 12 on bill of surprise, suppression, or
particulars. If the complaint is vague and alteration, may order the
ambiguous, the defendant in a civil case can more prosecution to produce and
permit the inspection and
for a bill of particulars. Counterpart, if the copying or photographing of any
allegations in the information are also vague and written statement given by the
ambiguous, I cannot understand it, so I cannot complainant and other witnesses
in any investigation of the
intelligently enter my plea. The accused, before offense conducted by the
arraignment, can move for a bill of particulars to prosecution or other
enable him to prepare properly for the trial. Then investigating officers, as well
as any designated documents,
he must specify the defects. Civil case, pareho. papers, books, accounts,
letters, photographs, object,
CINCO vs. SANDIGANBAYAN or tangible things not
otherwise privileged, which
202 SCRA 726 constitute or contain evidence
material to any matter involved
FACTS: A motion for bill of in the case and which are in
the possession or under the
particulars was filed by the lawyer of control of the prosecution,
the respondent in the fiscals office police, or other law
when the case was under preliminary investigating agencies. (11a)
investigation. (In preliminary
investigation, you are given the Section 10 deals also with a mode of discovery
affidavit of the complainant and his production and inspection of material evidence in the
witnesses. And then you are given 10 possession of the prosecution. Not only that, the
days to submit your counter- accused can have access to all evidence in the
affidavits.) Here, the affidavit is vague possession not only of the prosecution but
according to the accused, so he is filing including those in the possession and control of
a bill of particulars. He wanted to the police and other law investigating agencies.
compel the complainant to make his Take note, if we follow the case of LIM VS FELIX,
affidavit clearer. JR, when the case is filed by the fiscal, meron
namang kaunting ebidensya na dun, so that, the
ISSUE: Is Section 9 applicable judge can review and find out if there is probable
when the case is still in the fiscals cause, but it is not really all.
office for preliminary investigation?
Q: So if the accused wants to see other
HELD: NO. It is only applicable evidence and the fiscal refuses, can the accused
when the case is already in court for file a motion to compel the fiscal to reveal?
trial or arraignment. A: YES, because take note of Rule 112, Section
But suppose during the 8 [b], the records of the preliminary investigation
preliminary investigation, I cannot do not form part of the records of the case when it
understand what the complainant is reaches the court. That is why your remedy is to
saying in his affidavit? The SC said, have them inspected. Let us good back to Rule
that is simple! If you cannot 112, Section 8:
understand what the complainant is
Rule 112, Section 8[b] Record
saying in his affidavit, chances are, the of preliminary investigation. The
fiscal also will not understand it. And record of the preliminary
consequently, he will dismiss the case. investigation, whether conducted by
a judge or a prosecutor, shall not
Eh di mas maganda! Wag ka nalang form part of the record of the
mag-reklamo! [gago!] case. However, the court, on its
own initiative or on motion of any
party, may order the production of
the record or any of its part when
SEC. 10. Production or necessary in the resolution of the
inspection of material evidence case or any incident therein, or
in possession of prosecution. when it is to be introduced as an
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 118

evidence in the case by the any significant erosion of the

requesting party.
constitutional right to due process of a
potential accused. that the finding of a
Another interesting case here on Section 10 is
probable cause by itself subjects the
the ruling in
suspects life, liberty and property to
real risk of loss or diminution. The fact
that the law is silent does not mean
247 SCRA
that it does not apply. (Meaning, even
if it is under preliminary investigation,
FACTS: You know the story of
your liberty is already in danger.) The
Hubert Webb, the convict in that
right to discovery is rooted on the
Vizconde rape-homicide case.
constitutional protection of due
Somehow the defense discovered that
process which we rule to be
there were two (2) affidavits of Jessica
operational even during the
Alfaro (the State witness) which were
preliminary investigation of potential
executed before the NBI. Of course
what was presented by the NBI to the
In laying down this rule, the
DOJ was only one. So, the defense
Court is not without enlightened
filed a motion to compel the NBI to
precedents from other jurisdictions.
produce the other affidavit. This
The rationale is well put by Justice
happened when the case was under
Brennan in Brady society wins not
preliminary investigation.
only when the guilty are convicted but
when criminal trials are fair. Indeed,
ISSUE: Can you apply Section 10
prosecutors should not treat litigation
when the case is still in the fiscals
like a game of poker where surprises
office? Because if you read Section 10,
can be sprung and where gain by guile
it applies when the case is already in
is not punished.
court. The same with Section 9. Can
the mode of discovery under the Rules
of Court in criminal cases apply
So, the prosecutor should not hide anything
during the preliminary investigation?
because his job is not to convict but to see to it
that justice is done. Ive been reading lately SC
HELD: The issue is novel in this
recent decisions along that line na naman, where
jurisdiction as it urges an expansive
the SC said that your job Mr. Fiscal is not to
reading of the right of persons under
convict, but seek that justice is done. When you
preliminary investigation. It deserves
have no evidence, do not file. When there is no
serious consideration. So, the SC was
evidence in court, you move to dismiss the case
intrigued: can you invoke the rights of
ikaw mismo! Do no insist in trying the case.
an accused during the trial when he is
still under preliminary investigation?
And there was one decision where the SC
To start with, our rules in
said, What is the greatest achievement or moment of
criminal procedure does not expressly
a prosecutor? Some may say when pagna-convict
provide for discovery proceedings
niya ang accused. That is an achievement but is it
during a preliminary investigation
not the greatest on your part. The greatest
stage of the criminal proceeding. But
achievement on you part is when you ask the
the SC noted, This failure to provide
court to dismiss the case because there is no
discovery procedure during
evidence to convict the accused. That is the
preliminary investigation does not,
greatest achievement because that is your job to
however, negate its use by a person
see to it that justice is done.
under investigation when
indispensable to protect his
constitutional fight to life, liberty and SEC. 11. Suspension of
property. Preliminary investigation is arraignment. Upon motion by
not too early a stage to guard against the proper party, the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 119

arraignment shall be suspended quash under Rule 117, Section 3 [h]

in the following cases:
(a) The accused appears to that the information contains
be suffering from an unsound averments which in truth would
mental condition which constitute a legal excuse or
effectively renders him unable
to fully understand the charge justification.
against him and to plead But there is no prosecutor crazy
intelligently thereto. In such enough to file an information
case, the court shall order his
mental examination and, if admitting that the accused was insane
necessary, his confinement for when he committed the crime. That is
such purpose; tantamount to admitting that he is
(b) There exists a
prejudicial question; and exempt from liability. It is the defense
(c) A petition for review of who will prove insanity. So what is the
the resolution of the effect? You enter your plea of not
prosecutor is pending at either
the Department of Justice, or guilty and lets go to trial and I will
the Office of the President; prove insanity as my defense.
provided, that the period of
suspension shall not exceed
sixty (60) days counted from 2. Suppose he became insane when the
the filing of the petition with case is set for arraignment but he was
the reviewing office. (12a) normal when he committed the crime?
Then we apply Rule 116, Section 11
What are the grounds for suspending an you move for the suspension of the
arraignment? There are three and lets go over arraignment.
them one by one.
3. Suppose he became insane after the
(a) The accused appears to
be suffering from an unsound arraignment? You move to postpone
mental condition which the trial because he cannot adequately
effectively renders him unable
defend himself if he is crazy. The trial
to fully understand the charge
against him and to plead should be suspended.
intelligently thereto. In such
case, the court shall order his
mental examination and, if
4. Suppose he became insane when he is
necessary, his confinement for already convicted and serving
such purpose; sentence? Let us go back to the Penal
Code, Article 86 it is a ground for a
When the accused is in an unstable condition, motion for the suspension of the
you cannot properly, intelligently inform him of execution of the sentence.
the nature of the charge. So example: Buang,
unstable condition, Let us suspend the Second ground:
arraignment. Let us wait for his recovery and as (b) There exists a
prejudicial question;
long as he is not yet recovered, the arraignment is
suspended indefinitely. For as long as he has not
recovered, the arraignment remains suspended. When there is a prejudicial question. Just
connect this with Rule 111, Section 6 what do
BAR QUESTION : What are the legal effects of you mean by a prejudicial question, the elements,
insanity or unsound mental condition of the when do you raise them. When the case is in
accused? court, suspend the trial, suspend the arraignment,
A: It DEPENDS as to when was he insane lets wait for the civil case to be decided.
1. Suppose he was insane at the time he
committed the crime but now he is The third ground is new:
OK, then that is not a ground for the
(c) A petition for review of
suspension of the arraignment, not the resolution of the
even a ground for a motion to quash prosecutor is pending at either
the Department of Justice, or
unless the information admits that he the Office of the President;
is insane when he committed the provided, that the period of
crime in which case you can move to suspension shall not exceed
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 120

sixty (60) days counted from

the filing of the petition with
the reviewing office.
Based on existing jurisprudence, when the
prosecutor says File the case, technically, the Late one night, Jack took a short cut through
a graveyard. Hearing a tapping sound, he felt a
accused can appeal that although generally that is
little scared, but kept going. As the tapping grew
not appealable because of the MOGUL doctrine. louder, he became more frightened. Finally, he
As a general rule, the DOJ should no longer found a man chiseling at a gravestone.
entertain an appeal from the resolution of the Thank goodness, Jack said to the man with
fiscal stating that the case should be filed because relief. You gave me quite a fright. What are you
the court may not follow the DOJ. That is what
They spelt my name wrong, replied the
happened in the case of Mogul. Sabi ng DOJ, no man.
probable cause, Fiscal, you dismiss Sabi ng court,
No, Fiscal, you continue! Source: Readers Digest, January 2001

The problem is when the case reaches the

court, in most cases, the lawyer of the accused

will move for the suspension of the arraignment Man has not invented a reliable compass by
because he will say, I have a pending petition for which to steer a marriage in its journey over
review of the resolution in the DOJ. According to troubled waters. Laws are seemingly inadequate.
the circular of the DOJ, the petition for review can Over time, much reliance has been placed in the
only be entertained if the accuse has not been works of the unseen hand of Him who created all
arraigned, kung na-arraign na, wala na. But Who is to blame when a marriage fails?
normally courts will honor that. That court will Love is useless unless it is shared with
say, alright, let us suspend and wait for the another. Indeed, no man is an island, the cruelest
resolution of the DOJ. That is why it is a ground act of a partner in marriage is to say I could not
for suspension. have cared less. This is so because an ungiven
self is an unfulfilled self. The egoist has nothing
but himself. In the natural order, it is sexual
The trouble is this: how long does it take for intimacy which brings spouses wholeness and
the DOJ to resolve it? If they can resolve it within oneness. Sexual intimacy is a gift and a
2 or 3 years, you are lucky, the case cannot go on participation in the mystery of creation. It is a
because the DOJ is not done yet. This has been function which enlivens the hope of procreation
and ensures the continuation of family
the cause of delays. Thats why the new rules
says, provided, the suspension will not exceed
60 days counted from the filing of the petition Justice Torres, Jr. on the issue of psychological
with the reviewing office. This is tantamount to incapacity

the SC indirectly telling the DOJ or the reviewing

office (Provincial State Prosecutor) na bilisan CHI MING TSOI vs. COURT OF APPEALS
ninyo. If the petition is not acted within that G.R. No. 119190, January 16, 1997

period, lets proceed with the arraignment,

bahala na kayo dyan!

At least there is now a deadline. And that is

good. I really like this amendment. It is the
accused who filed the petition for review who is
under pressure to pressure the DOJ to resolve
because the suspension is only good for 60 days.
Unlike before where the pressure is in the
offended party because the case cannot run while
the petition for review is pending. Now, I do not
know whether the DOJ right now, can do in 60
days what they have been failed to do for years.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 121

Q: What are the grounds for a motion to

A: Section 3:

SEC. 3. Grounds. The

accused may move to quash the
complaint or information on any
of the following grounds:
(a) That the facts charged
do not constitute an offense;
Rule 117 (b) That the court trying
MOTION TO QUASH the case has no jurisdiction
over the offense charged;
(c) That the court trying
the case has no jurisdiction
over the person of the accused;
SECTION 1. Time to move to (d) That the officer who
quash. At any time before filed the information had no
entering his plea, the accused may authority to do so;
move to quash the complaint or (e) That it does not conform
information. (1) substantially to the prescribed
(f) That more than one
SEC. 2. Form and contents. offense is charged except when
The motion to quash shall be in a single punishment for various
writing, signed by the accused or offenses is prescribed by law;
his counsel and shall distinctly (g) That the criminal action
specify its factual and legal or liability has been
grounds. The court shall consider extinguished;
no ground other than those stated (h) That it contains
in the motion, except lack of averments which, if true, would
jurisdiction over the offense constitute a legal excuse or
charged. (2a) justification; and
(i) That the accused has
been previously convicted or
acquitted of the offense
In civil cases, within the time for but before charged, or the case against
him was dismissed or otherwise
filing the answer to the complaint, the defendant terminated without his express
may move to dismiss the case on certain specified consent. (3a)
grounds under Rule 16. In criminal procedure
naman, at anytime before entering the plea, the
accused may move to quash the complaint or 1ST GROUND: (A) THAT THE FACTS
Take note that under Section 2, the motion to
quash partakes the nature of an omnibus motion
because the court will consider no ground other The counter part of this in civil cases is, that
than those stated in the motion. The court will not the pleading asserting the claim states no cause of
quash a complaint or information on a ground action.
that you did not cite. This is because you can
waive this right. Q: How do we know the complaint or
information do not constitute an offense?
The only ground the court will consider moto A: You look at the allegations in the
propio, is lack of jurisdiction over the offense complaint. If the facts alleged do not constitute
charged, even if not raised in the motion to any crime, then the information should be
quash. The theory is that: No amount of silence quashed. This was emphasized in the case of
on the party of the accused will grant the court
jurisdiction over the subject matter of the case.
Jurisdiction over the subject matter is conferred LOPEZ vs. SANDIGANBAYAN
by law. October 13, 1995
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 122

HELD: As a general proposition, HELD: An infirmity in the

a motion to quash on the ground that information, such as lack of authority
the allegations of the information do of the officer signing it, cannot be
not constitute the offense charged, or cured by silence, acquiescence, or even
any offense for that matter should be by express consent.
resolved on the basis alone of said
allegations whose truth and veracity
are hypothetically admitted. However, 5TH GROUND: (E) THAT IT DOES NOT
additional facts not alleged in the CONFORM SUBSTANTIALLY
information, admitted or not denied TO THE PRESCRIBED FORM;
by the prosecution may be invoked in
support of the motion to quash. You know very well the form of complaint or
information. You go back to Rule 110 you state
the time, the place, etc. then in Rule 112 a
2ND GROUND: (B) THAT THE COURT certification is required. The fiscal will certify that
TRYING THE CASE HAS NO JURISDICTION I have conducted the preliminary investigation, etc.
OVER THE OFFENSE CHARGED; that is the form. The fiscal will certify that the
other party has given the chance to be heard. If
3RD GROUND: (C) THAT THE COURT the same was not afforded the accused, he can
TRYING THE CASE HAS NO JURISDICTION move to dismiss the case.
Q: Now, what is your ground to quash?
Instances when the court has no jurisdiction: A: You say, It does not comply with the
1.) the court has no jurisdiction to try the prescribed form because the correct form
case because of the penalty; requires certification. It is a ground for a motion
2.) the court has no jurisdiction to try the to quash.
offense because it is committed in
another place territorial jurisdiction; 6TH GROUND: (F) THAT MORE THAN
3.) the court has no jurisdiction over the SINGLE PUNISHMENT FOR VARIOUS
person of the accused because the OFFENSES IS PRESCRIBED BY LAW;
latter has never been arrested and
never surrendered himself. This refers to a duplicitous complaint or
information when it charges more than one
offense under Rule 110, Section 13. It is not
4TH GROUND: (D) THAT THE OFFICER allowed. However under Rule 120, Section 3 it is
WHO FILED THE INFORMATION HAD NO waivable. If the accused fails to object to it before
AUTHORITY TO DO SO; trial, the court may convict him of as many
offenses as are charged and proved, and impose
Q: Who has the authority to file the case? on him the penalty for each offense,
A: Prosecutor.

So if it was the clerk who signed for the city 7TH GROUND: (G) THAT THE CRIMINAL
prosecutor (e.g. By: Kent Clark clerk typist), the ACTION OR LIABILITY HAS BEEN
accused can move to quash because the clerk is EXTINGUISHED
not authorized. Remember, if the fiscal filed an
information without the previous complaint Q: How is criminal liability extinguished?
signed by the victim or by the parents, the same A: Under Article 89 of the RPC:
can be quashed. 1.) by death of the convict;
2.) by service of sentence;
CUDIA vs. COURT OF APPEALS 3.) by amnesty;
January 16, 1998 4.) by absolute pardon;
5.) by prescription of the crime;
6.) by prescription of the penalty;
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 123

EXAMPLE: The information should be filed HELD: NO, it cannot be quashed

only within 5 years but the charge was filed on because of paragraph [g] of Section 3
the 7th year. So you can move to quash because Rule 117 which states that the accused
the liability has already been extinguished by may move to quash the complaint or
prescription. information where it contains
averments which, if true, would
constitute a legal excuse or
8TH GROUND: (H) THAT IT CONTAINS justification. Hence, for the alleged
AVERMENTS WHICH, IF TRUE, WOULD privilege to be a ground for quashing
CONSTITUTE A LEGAL EXCUSE OR the information, the same should have
JUSTIFICATION been averred in the information itself.
Meaning, the information should
The complaint or information contains admit that it is privileged in nature. If
averments which if true would show that you are it is not stated there, then it is not
NOT liable. admitted.
The privilege should be absolute,
SITUATION: The information says that there not only qualified. Where, however,
is a case of homicide because in such certain date these circumstances are not alleged in
Rose stabbed Rucel because Rucel tried to stab the information, quashal is not proper
Rose first. The information is admitting that Rose as they should be raised and proved as
acted in self-defense. Prosecutor himself admits defenses. With more reason is it true
that Rose acted in self-defense. Therefore, the in the case of merely qualifiedly
information admits the existence of a justifying privileged communications because
circumstance. such cases remain actionable since the
defamatory communication is simply
SITUATION: You are charged for committing presumed to be not malicious, thereby
a crime and when you committed it, you are out relieving the defendant of the burden
of your mind. Thus, it admits insanity. So you can of proving good intention and
move to quash on the ground that the justifiable motive. The burden is on
information admits that you are insane. the prosecution to prove malice. Thus,
even if the qualifiedly privileged
That is what is meant by a complaint or nature of the communication is
information which contains averments which if alleged in the information, it cannot be
true, constitute a legal excuse or justification. Of quashed especially where prosecution
course this is very rare noh? Why will the fiscal opposes the same so as not to deprive
allege in the information something that is the latter of its day in court, but
favorable to you? This is very queer. prosecution can only prove its case
after trial on the merits.
One of the most interesting case here is the
1994 case of
columnist in a newspaper and was
charged for libel for writing in a This is known as the defense against double
column something which is jeopardy. The double jeopardy as a ground for a
discriminating. According to her the motion to quash is the most complicated ground.
information should be quashed That is why it is thoroughly discussed in Section
because it was a privileged 7. We will go now to Section 4.
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SEC. 4. Amendment of accused, if in custody, shall

complaint or information. If not be discharged unless
the motion to quash is based on admitted to bail. If no order
an alleged defect of the is made or if having been made,
complaint or information which no new information is filed
can be cured by amendment, the within the time specified in
court shall order that an the order or within such
amendment be made. (4a) further time as the court may
If it is based on the ground allow for good cause, the
that the facts charged do not accused, if in custody, shall
constitute an offense, the be discharged unless he is also
prosecution shall be given by in custody of another charge.
the court an opportunity to (5a)
correct the defect by
amendment. The motion shall be SEC. 6. Order sustaining the
granted if the prosecution motion to quash not a bar to
fails to make the amendment, or another prosecution; exception.
the complaint or information An order sustaining the
still suffers from the same motion to quash is not a bar to
defect despite the amendment. another prosecution for the
(n) same offense unless the motion
was based on the grounds
specified in section 3 (g) and
Actually, some of the grounds of a motion to (i) of this Rule. (6a)
quash are harmless, they are not fatal. They can
be cured by amendments.
SITUATION: An information is filed against
The second paragraph of Section 4 is new. It you and it is not in the prescribed form.
was merely inserted to complement the first
paragraph. Q: What would the court do?
A: Based on Section 4, the court will, instead
EXAMPLE: Motion to quash that the of quashing , allow the fiscal to amend. And your
information does not comply with the prescribed motion is already moot and academic. But
form because taking of oath was forgotten. I do suppose the court will quash the information
not think the court will order for the dismissal of because it was filed by somebody who was not
the criminal case because of that. It will instead authorized to file and the motion to quash is
issue an order directing the fiscal to amend, Take sustained, it does not mean to say that the case
the oath, so it will be cured. This is a ground for cannot be re-filed since the defects are incurable.
quashal which is not a serious defect but only a
formal defect. Thus, instead of quashing the SITUATION: The case of homicide is filed in
information the court may extend the right to the the MTC when actually it should be filed in the
fiscal to amend the complaint or information RTC. Since the MTC has no jurisdiction, you file a
since the name is curable. motion to quash. And the judge shall quash it.

However under the second paragraph, Q: What would the fiscal do?
despite the lapse of so many days, the prosecutor A: Tomorrow he will re-file it. So when the
did not file the amended information or even if case is dismissed on such a ground lack of
he filed the corrected information, pero ganun pa jurisdiction or it does not conform with the
rin, the defect is still there, I will rather move to prescribed form the rule is it is not a bar to re-
quash the information. file the case. It can be filed again.

We will take up Section 5 together with EXCEPT when the ground for dismissal is
Section 6. falling under paragraphs [g] and [i] of Section 3,
Rule 117.
SEC. 5. Effect of sustaining
the motion to quash. If the
motion to quash is sustained, Q: What is paragraph [g]?
the court may order that A: That the criminal action or liability has been
another complaint or
information be filed except as extinguished. If the case is quashed on this
provided in section 6 of this ground, that is the end since the same is
rule. If the order is made, the
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extinguished already. You cannot re-file it which is a valid ground. But look at the effect
anymore. the accused now has five warrants. Can you say,
it is because of a duplicitous information? He
Q: What is paragraph [i]? cannot understand that.
A: that the accused has been previously convicted
or acquitted of the offense charged, or the case against That is why there is difference in just
him was dismissed or otherwise terminated without his knowing the law from knowing how to apply the
express consent. So you cannot re-file the law. You should know the law and you should
information because of double jeopardy. know how to use it. If it is not in you interest, do
not use it. Why move to quash when by doing so
As a general rule, all other grounds for would worsen your situation. Of course, there are
motion to quash even if granted will not really be also instances where there is a need to object by
a total victory for the accused. That is why some virtue of a duplicitous information.
lawyers will never bother to file a motion to
quash anymore. This is because once you file it, Q: When do you apply it?
the same case would be re-filed. As a matter of A: That is for the lawyer to judge. Will you
fact, there are cases when it is not advisable to file use it or not? In other words, there is a need for
a motion to quash unless there is a serious reason. you to have a clear picture of the situation. You
It is a matter of judgment. If you think it will not must not only know the Rules of Court but also
benefit you client, then do not file it. Like in when the law must be used. An example is a
preliminary investigation some lawyers will not motion to quash. How to apply it.
submit to criminal investigation most especially if
they believe the fiscal will file because of probable However, when a case is quashed on the
cause. Better if I will not file so that you will not ground that the criminal liability has been
know who are my witnesses or statements. extinguished or the accused is placed in double
jeopardy, once it is quashed, that is the end. It
As a matter of fact that happened already. cannot be re-filed.
There was a case wherein the information stated
that the accused issued five (5) checks, with
SEC. 7. Former conviction or
different dates, all are post-dated. All five checks acquittal; double jeopardy.
bounced. So, a complaint against the accused was When an accused has been
filed before the fiscal. What the fiscal did was to convicted or acquitted, or the
case against him dismissed or
file one case for estafa reciting there that the otherwise terminated without
accused issued five checks of five different dates his express consent by a court
with different maturities, and all bounced. of competent jurisdiction, upon
a valid complaint or
information or other formal
So it turned out that the information is charge sufficient in form and
duplicitous because every check should have substance to sustain a
conviction and after the
been one case. You know what the lawyer for the accused had pleaded to the
accused did? He file a motion to quash stating charge, the conviction or
that the information charges more than one case acquittal of the accused or the
dismissal of the case shall be
of estafa. The lawyer was correct, so the a bar to another prosecution
dismissed the information. The following day, the for the offense charged, or for
fiscal filed 5 informations. One case for every any attempt to commit the same
or frustration thereof, or for
check. In effect there are five warrants of arrest any offense which necessarily
already. Then the accused asked his lawyer, includes or is necessarily
Atty, what happened? Before I have only one included in the offense charged
in the former complaint or
case. Now, there are already five! information.
However, the conviction of
Q: If you are the lawyer, how will you explain the accused shall not be a bar
to another prosecution for an
that? offense which necessarily
A: Actually, legally you are correct. An includes the offense charged in
information should charge only once crime. But the former complaint or
information under any of the
since t charges five crimes so you move to quash following instances:
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(a) the graver offense The first sentence is what you call protection
developed due to supervening
facts arising from the same act against double jeopardy of punishment for the
or omission constituting the same offense. The second sentence is what you call
former charge; the protection against double jeopardy for the
(b) the facts constituting
the graver charge became known punishment of the same act. So there is double
or were discovered only after a jeopardy for the same offense and double
plea was entered in the former jeopardy for the same act. The second sentence is
complaint or information; or
(c) the plea of guilty to not the same offense, but it is the same act.
the lesser offense was made
without the consent of the The second sentence says that the act is
prosecutor and of the offended
party except as provided in punished by a law passed by Congress and it iis
section 1(f) of Rule 116. also punished for example, by an ordinance
In any of the foregoing passed by the City or Municipal Council. So it is a
cases, where the accused
satisfies or serves in whole or crime under the municipal or city ordinance and
in part the judgment, he shall also under the national law. It is not the same
be credited with the same in crime because it is punished by two laws, so
the event of conviction for the
graver offense. (7a) there must be two crimes.

However the sentence says, that if you are

One important ground for a motion to quash acquitted or prosecuted under the national law,
is Section 7 on double jeopardy which is also you cannot anymore be acquitted or convicted
found in the Constitution Section 21, Article 3 under the city or municipal ordinance all over
on the Bill of Rights. again or vice-versa. You are protected for the
same act not for the same offense.
Q: Define jeopardy?
A: Jeopardy is the peril in which a person is Now, the best illustrative case comparing the
put when he is regularly charged with a crime first and the second sentences is the 1987 case of
before a tribunal properly organized and PEOPLE vs. RELOBA, infra where Justice
competent to try him. (Commonwealth vs. Feliciano traced the history of double jeopardy
Fitzpatrick, 1 LRA 451) staring from the 1935 Constitution.

Meaning, if a case is filed against you before PEOPLE vs. RELOVA

a court which is competent to try you, then from 148 SCRA 292
that moment, there is a risk, danger or peril.
Everytime there is peril, there is jeopardy. And FACTS: The accused installed an
after what happened to you, whether you are electrical connection without permit.
acquitted or convicted or the case was dismissed He was charged with theft under the
without your consent, later on ibalik ka naman in RPC theft of electricity. And it so
the second time around, ah hindi puwede yan. It happened that in that place, there was
is inhuman to put you in jeopardy twice. an ordinance passed by the municipal
council making it a crime for you to
make an electrical connection without
Lets go to the Constitution. Under Article 3, permit.
Section 21, there are two (2) sentences: So he was charged both for
violation of the RPC and the
1.) No person shall be twice put in municipal ordinance. The accused
jeopardy of punishment for the same filed a motion to quash the second
offense. and information, stating that he has
2.) If an act is punished by a law or already been charged for theft of
ordinance, conviction or acquittal in electricity. The prosecution contended
either shall constitute a bar to another that the first charge was theft under
prosecution for the same act. the RPC and the prosecution is
charging him not for theft but for
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illegal electrical connection under the

municipal ordinance. MALLARI vs. PEOPLE
168 SCRA 422
ISSUE #1: What is the reason why
there are 2 rules in the provision on HELD: The rule against double
double jeopardy? jeopardy protects the accused not
HELD: If the second sentence of against the peril of second punishment
the double jeopardy provision had not but against being tried for the same
been written into the Constitution, offense. Without the safeguard this
conviction or acquittal under a rule establishes in favor of the
municipal ordinance would never accused, his fortune, safety and peace
constitute a bar to another prosecution of mind would be entirely at the
for the same act under a national mercy of the complaining witness who
statute. An offense penalized by might repeat his accusation as often as
municipal ordinance is, by definition, it is dismissed by the court and
different from an offense under a whenever he might see fit, subject to
statute. The two offenses would never no other limitation or restriction than
constitute the same offense having his will and pleasure. The accused
been promulgated by different rule- would never be free from the cruel
making authorities though one be and constant menace of a never
subordinate to the other and the ending charge, which the malice of a
plea of double jeopardy would never complaining witness might hold
be. The discussions during the 1934- indefinitely suspended over his head.
1935 Constitutional Convention show
that the second sentence was inserted
precisely for the purpose of extending Lets go to the double jeopardy rule.
the constitutional protection against
double jeopardy to a situation which Q: Bar Question: What are the requisites of
would not otherwise be covered by double jeopardy?
the first sentence. A: The SC tried to compressed that 2
paragraphs (of Section 7) in only 3 sentences in
ISSUE #2: Was there double the case of
HELD: The purpose of installing PEOPLE vs. BOCAR (138 SCRA
illegal connection is to steal electricity, 166) reiterated in
which is also theft. In other words, it is PANGAN vs. PEOPLE (155 SCRA
the same act of installing which is 45)
punishable. Since you are acquitted or
convicted under the national law, you HELD: To raise the defense of
cannot be prosecuted under a double jeopardy, three (3) requisites
municipal law. You are protected by must be present:
the second sentence of double 1.) The first jeopardy must
jeopardy in the Constitution: If an act have been attached prior to
is punished by a law or ordinance, the second;
conviction or acquittal in either shall 2.) The first jeopardy must be
constitute a bar to another validly terminated; and
prosecution for the same act. 3.) The second jeopardy must
be for the same offense as
However, Section 7 is not concerned with the that of the first.
second sentence but with the first sentence the
protection against double jeopardy from being
punished for the same offense. This is similar to Well, this is my advice, for purposes of
res adjudicata. The SC explained the rational answering the question on double jeopardy and
behind the double jeopardy rule in the case of in order to understand completely the double
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 128

jeopardy rule, let us analyze Section 7 by dividing to quash on the ground of double jeopardy. Is
it into three (3) parts: there double jeopardy?
A: There is no double jeopardy for the
A.) WHAT ARE THE REQUISITES OF following reasons:
DOUBLE JEOPARDY IN ORDER TO 1. The dismissal of the first information
ATTACH? was on motion of the accused.
Therefore, it was a dismissal with his
B.) IN WHAT INSTANCES MAY THE express consent. Diyan palang, tumba
OF DOUBLE JEOPARDY? and 2. The accused moved to quash the first
information on the ground that it did
C.) ASSUMING THAT ALL THE not charge an offense. Therefore, it
REQUISITES OF DOUBLE JEOPARDY, was not a valid information. So, the
THE ACCUSED IS PROTECTED accused was never in jeopardy.
AGAINST FROM WHAT OFFENSE? (People vs. Reyes, 98 Phil. 646)

In effect, Section 7 talks of those three. Lets IT IS FILED IN A COURT OF COMPETENT

start with the first one: JURISDICTION

CASE: A case of homicide is filed in the MTC;

A.) WHAT ARE THE REQUISITES that will be dismissed in MTC for lack of
jurisdiction. But that can be cured if the fiscal
will file the information of homicide in the RTC.
TO ATTACH? Is there double jeopardy?
A: None. The accused was never in jeopardy
Q: When does the first jeopardy attach? because the first information was filed before the
A: It attaches when the following requisites are
wrong court. There was no danger of being
convicted based on the case filed. (People vs.
1. The former complaint or information Salico, 84 Phil. 722)
is valid;
2. It was filed in a court of competent
3. The accused had been arraigned under
said complaint or information; and REQUISITES OF DOUBLE
4. The accused had pleaded to the same. JEOPARDY ARE PRESENT, IN
Q: When is a complaint or information valid JEOPARDY?
within the meaning of the double jeopardy rule?
A: The requisites are: Q: In what instances may the accused invoke
1. if it charges an offense; (People vs. the protection of double jeopardy?
Austria, 94 Phil. 897) A: In the following:
2. if it is filed by a person or officer 1.) when the accused had been previously
legally authorized to do so. (People convicted;
vs. Kho, 97 Phil. 825) 2.) when the accused had been previously
acquitted; and
CASE: An information was filed against Mr. 3.) when the case against the accused had
Acelar for theft. Mr. Acelar moved to quash on been dismissed or otherwise
the ground that the information does not charge terminated without his express
any offense. The court agreed and the consent.
information was quashed. So, the fiscal corrected
the information and re-filed it. Mr. Acelar moved Lets go to a decided case: The fiscal filed a
case against you for homicide alleging that on a
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certain day you killed Juan dela Cruz. While the not a key for the prosecutors to file several the
case is pending, the fiscal filed a second same cases against the accused. The law only
information for the same homicide committed on provides that you cannot raise the defense of
the same day by the same accused. So you are double jeopardy in this situation. But you can
now facing two charges for the same homicide. question the acts of the prosecution to his
Can you move to quash the second information superior or you may file an injunction case citing
on the ground of double jeopardy? the case of Brocka vs. Enrile. But definitely you
cannot use double jeopardy as defense.
In so many cases, like in the case of Buscayno
vs. Milatary Commission, the SC said NO, because Q: What is the difference between acquittal
you have not been acquitted or convicted. The and dismissal of the case?
first case was not validly terminated kay pending A: Generally, dismissal is not on the merits.
pa man. In civil case, that is litis pendencia. Now, But there are dismissals which are classified as
if the case is already decided, convicted or acquittal, like demurrer to evidence, or dismissal
acquitted, or dismissal without his express because of the violation of the right of the accused
consent, then there can now be double jeopardy. to speedy trial.
In civil case that is res adjudicata.
In the same manner, for double jeopardy to
However in the case of People vs. City Court of attach, the law says, the case must have been
Manila (121 SCRA 627), the SC made a dismissed without your express consent. So, as a
pronouncement that mere pendency of a criminal general rule, when the accused himself files a
case against the accused can be invoke as a motion to dismiss, he cannot invoke double
ground for double jeopardy. jeopardy because he himself intended the
dismissal of his case; it is with his express
So, which is which? The issue has been consent.
resolved in the 1993 case of



HELD: The mere filing of two (2) We will explore the first issue: Whether or
informations charging the same not the dismissal is with the express consent of
offense is not an appropriate basis for the accused. One of the interesting cases
the invocation of double jeopardy interpreting the meaning of the phrase is the 1993
since the first jeopardy has not yet set case of
in by a previous conviction, acquittal
or termination of the case without the
consent of the accused.
221 SCRA 960
The ambiguity stirred by the
imprecise observation in People vs. City
FACTS: Vergara was accused of
Court of Manila, a 1983 case, can now
frustrated murder for allegedly
he considered modified in that a prior
conspiring with some people. While
conviction, or acquittal, or termination
the case is pending, the accused asked
of the case without the express
the provincial prosecutor for a
acquiescence of the accused is still
reinvestigation of the case. The request
required before the first jeopardy can
was granted. After reinvestigation,
be pleaded to abate a second
the prosecutor made a finding that
there was no crime because the
accused acted in self-defense.
Now, the law says that you have been
Therefore, the prosecutor moved for
convicted or acquitted, or a case against you have
the dismissal of the case in court. The
been dismissed without you express consent.
trial court granted the motion for
That is what you mean by the first jeopardy has
already been terminated. But take note that this is
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dismissal of the case for frustrated that by simply asking for

murder. reinvestigation. You cannot infer that
However, when the fiscal made a there is express consent; that is not
finding that there was no probable within the concept.
cause, in the meantime naman, the Express consent has been defined
complainant appealed such finding to as that which is directly given either
the Secretary of Justice. The viva voce or in writing. It is a positive,
recommendation of the prosecutor direct, unequivocal consent requiring
was disapproved. Sabi ng DOJ, No, no inference or implication to supply
there is a case here. Provincial its meaning. This is hardly what the
prosecutor, i-re-file mo. So, there was accused gave. What they did was
another information for frustrated merely to move for reinvestigation of
murder filed against the same accused. the case before the prosecutor. To
This time, the accused pleaded Double equate this with express consent of the
Jeopardy. Bakit? According to the accused to the dismissal of the case in
accused: the lower court is to strain the
meaning of express consent too far.
ACCUSED: The cases Simply, there was no express consent
were dismissed upon motion of the accused when the prosecutor
of the prosecutor; I was not the moved for the dismissal of the original
one who filed the motion. So, Informations.
when the case was dismissed,
it was dismissed without my
express consent. There was a second issue in the case of
COMPLAINANT: No, VERGARA based on the rule on motion. In
why did you ask for general, when you file a motion, you must
reinvestigation? Di ba, the furnish a copy of the motion to the adverse party
purpose is that it will lead to because, generally, motions cannot be filed ex-
the dismissal of the case? So, parte unless the motion is non-controversial.
when you filed a motion for Therefore, when the prosecution filed a motion to
reinvestigation, in effect, you dismiss ex-parte [without furnishing the parties a
are seeking a dismissal with copy of the motion].
your express consent.
ACCUSED: No! Express
consent is different from
intention. When I filed a PEOPLE vs. VERGARA, supra
motion for reinvestigation, my
intention was to let the case be ISSUE: Is there a necessity to
dismissed, but I did not give furnish the parties a copy of the
my express consent. While I motion to dismiss?
may have intended to let the HELD: NO. It is not necessary. Is
case be dismissed upon there a necessity to furnish the accused
moving for reinvestigation, I a copy of the motion to dismiss? Do
never give my express consent you think the accused will oppose the
for the dismissal of the case. It motion? Of course not because it is
was the prosecutor himself favorable to him. Definitely, the
who did it. accused will not question the filing of
the motion to dismiss the criminal
ISSUE: Is there double jeopardy? case.
As to the complainant, is there a
HELD: YES, there is double necessity for the prosecutor to furnish
jeopardy. When you say express a copy of the motion to dismiss the
consent, the consent must be criminal case to the private offended
categorical, clear. You cannot infer party? Remember, every criminal case
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is under the direction and control of

the prosecutor. If we will allow the
general rule, if the victim will question PEOPLE vs. MOGOL
the dismissal, he will be having 131 SCRA 296
control and no longer the prosecutor.
The prosecutor determines whether FACTS: The accused was charged
there is a case or none. Therefore, with physical injuries. After trial in
there is also no necessity of furnishing the MTC, the court discovered that it
to the private offended party a copy of should not have been physical injuries,
the motion to dismiss. rather it should have been frustrated
What should be the remedy of the murder because there was intent to
private offended party? Because the kill eh. The MTC dismissed the case of
offended party is aggrieved, imagine physical injuries and told the fiscal to
nawala ang kaso niya! The remedy, file information for frustrated murder
when the court ordered the dismissal dahil mali ang fi-nile mo. The accused
of the case, is to appeal the order of claimed that he was charged for the
dismissal because it is also adverse to same act. Thus, he moved for the
their claim for civil liability. Instead, dismissal of the frustrated murder
they allowed the order of dismissal to case.
become final and, now, they are
arguing that the order of dismissal is ISSUE: Is there double jeopardy?
void. They should have appealed it.
HELD: NONE. There was no
double jeopardy because the order of
One last point. According to the law, if a case the trial court dismissing the physical
is dismissed without your express consent, that injury case is wrong. It was a void
could be a basis for double jeopardy. order because what the judge should
HOWEVER, jurisprudence says, an order have done is to continue trying the
dismissing a case will NOT constitute double case even if there was an error in the
jeopardy if the order of dismissal is NULL and offense charged. So, if the accused
VOID. Meaning, an order of dismissal of a case would be convicted, it is for physical
will constitute double jeopardy on the injuries. In other words, you cannot
assumption that the order of dismissal was a order dismissal and then re-file the
valid order of dismissal. case for frustrated murder. Because
the order dismissal is void, there is no
Q: What is the usual reason why an order of double jeopardy.
dismissal is void?
A: The usual reason is when the prosecution However, there was one dissenting justice in
was deprived of due process. That has been the case of Bogol former Justice Makasiar. He
exemplified in many cases. One of the cases is said that there is double jeopardy as the case had
Senator Aquino et al. Na-acquit man yan sila ba. already been tried and submitted for decision
These people were already acquitted by the where the MTC judge ordered the physical injury
Sandiganbayan. How come nabalik ang kaso? to be dismissed and ordered the filing of a new
On the theory that everything was pre-arranged case for frustrated murder in the RTC. Frustrated
including the acquittal. The SC said, the acquittal murder includes physical injuries. Therefore,
of the case is null and void because the dismissal of the latter resulted in double
prosecution was deprived of due process in the jeopardy.
sense that no matter what it does, the acquittal of
the accused was already pre-ordained. So there is If you look at it, talagang tama siya (Makasiar,
no double jeopardy. J.) eh all the elements are there. But the trouble
is, sabi ng SC, the order of dismissal is void, there
That has been applied in many cases like in was no valid dismissal ibalik! The charge for
the case of physical injury was reinstated.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 132

Another instance, the 1992 case of blame because unless amnesia

suddenly struck all of them
simultaneously, it cannot be imagined
GORREON vs. RTC OF CEBU that in a brief span of about twenty-
213 SCRA 138 four (24) hours, they had all forgotten
about the order dictated in open court
FACTS: The case was set for pre- cancelling the hearing for September
trial for 2 days (September 27 and 28). 27 and 28, 1990. [The order of
On the first day of the trial, the cancellation was given the day before,
offended party was there pero wala and the following day nobody
ang accused. The court said, We will remembered about it.] For the
have to cancel the hearing for today prosecutor who orally moved for such
and tomorrow on the presumption cancellation and the Judge himself
that maybe they did not receive the who dictated the said order, no
notice. The trouble is the following plausible explanation may be offered
day, paglabas ng court calendar, for such lapse.
nandoon pa rin ang kaso it was
supposed to be cancelled. This time, That is a demonstration of the rule that when
ang accused naman ang sumipot, ang the order of dismissal is null and void, you
offended party wala. Of course, why cannot plead double jeopardy.
would the offended party be there, eh,
na-cancel na. Since the accused was And the last part:
present for trial, but the prosecution
was not ready because wala ang
testigo niya, the court dismissed the C.) ASSUMING THAT ALL THE
case for failure of the complainant to REQUISITES OF DOUBLE
appear and to testify. [Well, the court JEOPARDY, ARE PRESENT, THE
and the prosecution should have ACCUSED IS PROTECTED AGAINST
remembered that the hearing is FROM WHAT OFFENSE?
already cancelled.] So, when the
complainant learned about it, Assuming the accused has already been
nagreklamo, I was not supposed to convicted, acquitted or the case is dismissed
be there anymore, na-cancel naman. without his express consent, and all the requisites
They looked at it, nagkamali talaga; of double jeopardy are present, the accused
everybody realized this error. cannot be convicted for:
1. for the same offense; or
ISSUE: Is there double jeopardy if 2. for an attempt to commit the same
the action will be filed again? offense. [If you are convicted or
acquitted for a consummated offense,
HELD: NONE. The erroneous you cannot be charged or convicted or
dismissal order was issued acquitted for the lesser stage;] or
capriciously and arbitrarily; it 3. for frustration or attempt thereof; [The
unquestionably deprived the State of a acquittal, conviction or dismissal of
fair opportunity to present and prove the consummated crimes carries
its case. Thus, its right to due process automatically the frustrated or
was violated. The said order is null attempted stage of the same crime.] or
and void and hence, cannot be 4. for any other offense which
pleaded to bar a re-opening of the case necessarily includes or is necessarily
on the ground of double jeopardy. included in the offense charged in the
Consequently, the first jeopardy was former complaint.
not terminated and no second
jeopardy threatened the accused.
The Judge, Clerk of Court and the
prosecution should shoulder the
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BEING PROSECUTED FOR THE SAME Q: An accused stole a revolver, tinago niya. It
OFFENSE turned out to be unlicensed. He was first
prosecuted for theft of firearm and he was
What is troublesome here is being prosecuted convicted. He was subsequently prosecuted for
for the same offense. This has been the subject of so illegal possession of firearm. Is there double
many decided cases, whether it is the same jeopardy?
offense or not. A: NONE. The offenses are different. Theft is
consummated upon the taking, while illegal
Q: While in a public place, Maya fired a possession involves not only the taking but also
machine gun, thereby causing panic and physical the possession and intent to use the firearm.
injuries to certain persons. She was charged with (People vs. Remerata, 98 Phil. 413)
serious physical injuries through reckless
imprudence for firing the gun in public. Q: The accused, without a license, drove his
Subsequently, she was charged with serious jeep recklessly such that it turned turtle resulting
public disturbance in a public place. Is there into the death of four of its passengers.
double jeopardy? Prosecuted for multiple homicide through
A. NONE. While there was only a single act, reckless imprudence; he was convicted.
two distinct offenses resulted therefrom namely: Subsequently, he was prosecuted for driving
(1) physical injuries which is a crime against without a license under the Land Transportation
persons, and (2) public disturbance which is a Law. Is there DOUBLE JEOPARDY?
crime against public peace and order. (People vs. A: NONE. The two offenses are distinct: one
Bacolod, 89 Phil. 621) is punished by the Penal Code and the other by
special law. (People vs. Guanco, 83 Phil. 639)
Q: Accused was caught fishing with
explosives. He was first prosecuted for illegal Q: The accused married twice and lived with
fishing and subsequently, for illegal possession of the second woman as husband and wife for quite
explosives. Is there DOUBLE JEOPARDY? some time. Prosecuted for bigamy, he was
A: NONE. These are two (2) distinct offenses, convicted. Subsequently, he was prosecuted for
the same being punished by two different laws. concubinage. Is there DOUBLE JEOPARDY?
There is a law for illegal fishing and another for A: NONE. The two offenses are distinct. In
illegal possession of explosives. (People vs. bigamy, marriage is an essential element. You
Tinamisan, L- 4081, January 29, 1952) can only commit bigamy if you are married and
you marry another. But in concubinage, marriage
Q: A complaint for adultery was filed against is not an essential element mere living together
Miriam and Cholo covering the period from the as husband and wife is sufficient. (People vs.
year 1946 to March 14, 1947. Pleading guilty, the Schneckenburger, 72 Phil. 413) If you are a
two were accordingly sentenced. On September married man and you live as husband and wife
17, 1948, a second complaint for adultery was with another woman, that is concubinage even if
filed against Miriam and Cholo covering the you will not marry her.
period of March 15, 1947 to the date of the filing
of the second complaint. The two moved to quash
the second complaint on the ground of double PEREZ vs. COURT OF APPEALS
jeopardy. Is there double jeopardy? 168 SCRA 236
A: NONE. Adultery is a crime of result and
not of tendency; it is an instantaneous crime FACTS: Accused was charged
which is consummated at the moment of the with consented abduction. He was
carnal union. Each sexual intercourse constitutes acquitted. The court said that it was
a crime of adultery, so that there may be as many qualified seduction pala, and not
complaints for adultery as there are adulterous consented abduction. So, another
acts committed. It is only one relationship but complaint for seduction was filed
every carnal act is one crime. (People vs. Zapata, against the accused. The accused
88 Phil. 688) pleaded double jeopardy. Is there
double jeopardy?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 134

HELD: NONE. Although they may violating two national laws, e.g. BP 22
have arisen from the same set of facts, and Estafa, then there is no double
[and they are both crimes against jeopardy.
chastity] they are not identical offenses
as would make applicable the rule on Those are examples of NO double jeopardy.
double jeopardy.
There are similar elements HOWEVER, there are cases where the crimes
between Consented Abduction and are not identical but double jeopardy can be
Qualified Seduction, namely: (1) that applied. The best example is delito continuado
the offended party is a virgin, and, (2) because the SC said the protection against double
that she must be over twelve (12) and jeopardy may be extended to a case of a single
under eighteen (18) years of age. criminal act impelled by a single criminal intent,
However, two elements differentiate resulting into two or more juridically identical
the two crimes. Consented Abduction, offenses.
in addition to the two common
elements, requires that: (1) the taking Q: Give examples of the rule mentioned
away of the offended party must be above.
with her consent, after solicitation or A: The following:
cajolery from the offender, and, (2) the
taking away of the offended party 1. Mr. Cadungog stole two (2) fighting
must be with lewd designs. On the cocks in the same place. He was
other hand, an information for prosecuted for stealing one cock. He
Qualified Seduction also requires that: cannot be prosecuted anymore for
(1) the crime be committed by abuse of stealing the other cock. Although there
authority, confidence or relationship, are two acts of taking but there is only
and, (2) the offender has sexual one criminal intent that is where
intercourse with the woman [which is double jeopardy will arise. (People vs.
not required in abduction]. De Leon);

2. A person was charged with illegal

NIERRA vs. DACUYCUY importation of blasting caps a
181 SCRA 1 device for preparing explosives
cannot be subsequently prosecuted for
FACTS: A check bounced. Two illegal possession of the same, for
cases were filed: (1) Estafa, under there can hardly be importation
Article 315, RPC, and (2) BP 22. Is without possession. (People vs.
there DOUBLE JEOPARDY? Elkanish, 90 Phil. 53);

HELD: NONE. The two crimes are 3. A person charged with reckless
distinct. While, in filing of the two driving under the LTO Law cannot be
sets of information may refer to subsequently charged with damage to
identical acts, the prosecution cannot property through reckless imprudence
be limited to one offense because a because reckless driving is the
single criminal act may give rise to a essential element of both offenses.
multiplicity of offenses with different (People vs. Diaz, 94 Phil. 714; People
elements. Prosecution for the same act is vs. Belga, 100 Phil. 996);
not prohibited. What is forbidden is
prosecution for the same offense. 4. A person convicted of illegal
However under the Constitution, possession of opium cannot be
if the same act is punished by a subsequently prosecuted for illegal
national law and an ordinance, iba na possession of opium pipe found
yan! Conviction or acquittal in either together with the opium. (U.S. vs. Pho
one will constitute double jeopardy Chi, 20 Phil. 104);
that is the exception. But, if you are
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 135

5. Possession of two or more unlicensed under a special law, while rebellion is

firearms in one place constitutes but punishable under the Penal Code.
one offense so that conviction for
illegal possession of one firearm is a HELD: The prosecution is wrong.
bar to a subsequent prosecution for In the light of the absorption doctrine,
possession of the other or others. (U.S. the prosecution must fail. All crimes
vs. Gustilo, 19 Phil. 208) which are mere components of
rebellion or are committed in
furtherance thereof are absorbed in
rebellion. The theory of absorption in
MALLARI vs. PEOPLE rebellion cases must not confine itself
168 SCRA 422 to common crimes but also to offenses
under special laws which are
FACTS: The accused wanted to perpetrated in furtherance of the
mortgage two (2) lots to the victims, political offense. And yet, the two
let us say for P3,000, at P1,500 each. crimes are punishable by two different
Sabi ng victim, Kulang man ang statutes. Technically, they are not the
kwarta ko. I will only lend you P1,500, same offense and yet one absorbs the
good for one lot lang. You ask my other because when you are in
mother-in-law baka may pera siya. conspiracy with the rebels, necessarily
Meron man din. So hinati the other you harbor each other. You cannot be
lot was mortgaged to the mother-in- expected to be a traitor to each other.
law of the victim for P1,500. It turned So, how can you separate one crime
out that all those deed of mortgage from the others?
were falsified. Two cases were filed
against the accused because there
were two victims. Alright. And both of them were among the
senators Honasan and Enrile. Now, we will go
ISSUE: Is there double jeopardy? to the third senator Miriam Santiago.

HELD: YES. There is only one SANTIAGO vs.

crime committed. There is only one GARCHITORENA
intent to defraud. It is just accidental 228 SCRA 214
that the intended victim only got one-
half. There is a similar crime FACTS: Miriam Santiago was
consisting of a series of acts, but all charged criminally with violation of
arising from one criminal resolution. Anti-Graft and Corrupt Practices Act
allegedly committed by her by
favoring unqualified aliens when she
was still the Immigration
September 13, 1990
Commissioner. Later, the prosecution
sought to change the charge by filing
FACTS: Enrile was charged for
thirty-two (32) amended information
rebellion during the coup d etat
since 32 aliens were benefited. So, 32
during the time of President Aquino
cases were filed.
for conspiring with Honasan. During
the highlight of the coup attempt,
HELD: The prosecution is directed
nandun si Honasan sa birthday party
to consolidate the 32 informations into
ni Enrile. While the case for rebellion
1 information charging only 1 offense.
was pending, another case was file
The concept of delito continuado,
against him under PD No. 1829 for
although an outcrop of the Spanish
harboring or concealing fugitives. The
Penal Code, has been applied to
prosecution contended that harboring,
crimes penalized under special laws
concealing a fugitive is punishable
citing Article 10 of the RPC. The 32
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 136

Amended Informations aver that the rape may be converted into a crime of
offenses were committed on the same coercion, by merely alleging that by
period of time, i.e., on or about force and intimidation the accused
October 17, 1988. The strong prevented the offended girl from
probability even exists that the remaining a virgin.
approval of the application for the
legalization of the stay of the 32 aliens
was done by a single stroke of the pen,
as when the approval was embodied

Q: What are the exceptions to the double

NECESSARILY INCLUDES OR IS NECESSARILY A: There are three (3) exceptions, under
1. the graver offense developed
Thus, a charge of Murder, double jeopardy due to supervening facts
for Homicide; a charge for Homicide, double arising from the same act or
jeopardy for murder. Either one eh, baliktaran! omission constituting the
Basta one offense is included in the other. former charge; (Section 7 [a])
Robbery includes theft; serious physical injuries 2. the facts constituting the
includes less serious physical injuries and slight graver charge became known
physical injuries. (People vs. Martinez, 55 Phil. 6; or were discovered only after a
People vs. Belga, 100 Phil. 996) Sama-sama lahat plea was entered in the former
yan. That is covered by the protection against complaint or information;
double jeopardy. (Section 7 [b]) or
3. the plea of guilty to the lesser
Kaya nga in the plea-bargaining, when the offense was made without the
accused pleads guilty to a lesser offense included consent of the prosecutor and
in the crime charged with consent of the of the offended party except as
prosecution and the offended party, there is provided in section 1(f) of Rule
double jeopardy already. You cannot be charged 116. (Section 7[c])
anymore for a lighter offense. That is covered by
double jeopardy rule.
HELD: The law here seeks to FORMER CHARGE
prevent harassment of an accused
This is also known as the supervening fact
person by multiple prosecutions for
offenses which though different from doctrine, also known as the Melo Doctrine
one another are nonetheless each because this rule was laid down in the case of
Melo vs. People, 45 Phil. 766.
constituted by a common set or
overlapping sets of technical elements.
EXAMPLE: Mortz stabbed Kim. Kim was
Otherwise, an unlawful act or
confined in the hospital. Mortz was charged with
omission may give use to several
frustrated homicide. He pleaded guilty. After 2
prosecutions depending upon the
days, Kim died. So the fiscal amended the
ability of the prosecuting officer to
information to consumated homicide. Mortz
imagine or concoct as many offenses
as can be justified by said act or pleaded guilty double jeopardy. Under the Melo
omission by simply adding or doctrine, there is no double jeopardy because of
subtracting essential elements. Under the supervening fact of death of the victim arising
from the same act or omission constituting the
the theory of appellant the crime of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 137

former charge the graver offense developed due pleaded guilty, sentenced to less serious physical
to the supervening fact. injuries arresto mayor. Then after one month,
wala pa man naayo, the injury was still there.
The reasoning in Melo is that, when the The victim went to the doctor. Ini-x-ray, bali pala
accused was charged with frustrated homicide, ang buto! Meaning, the crime all along was
the crime of consummated homicide was not yet serious. The trouble is, the fracture was not
in existence because the victim is still alive. So the detected by the doctor. So they sought to change
crime of consummated homicide started to come the charge to serous physical injuries. The SC
out after the arraignment. Therefore, the said, NO, the fracture did not supervene after the
information can be changed to consummated arraignment. It was there all along. Only, it was
homicide. discovered after. You cannot change the
information because double jeopardy applies.

DISCOVERED ONLY AFTER A PLEA WAS charged with physical injuries through reckless
ENTERED IN THE FORMER COMPLAINT OR imprudence and then arraigned kaagad ang
INFORMATION accused. Yon pala, patay na ang victim. The fiscal
move to postpone the arraignment to verify the
Now, the Melo doctrine had one flaw which status of the victim. HELD: Ah walang
the SC observed in other cases. For example we postponement! Tuloy!
will change the facts:
Mortz shot Kim. Kim was confined So it was really unfair. It is not covered by the
in the hospital. Mortz was charged Melo Doctrine. You cannot say tha the greater
with frustrated homicide. Lets say injury came after. It was already there all along.
Mortz will be arraigned tomorrow, but Only it was discovered after the plea.
tonight Kim died. The following
morning, nobody knew about it. So NGAYON, para wala ng gulo meron ng
the arraignment continued and Mortz paragraph [b]:
pleaded guilty to frustrated homicide.
After Mortz was sentenced to the facts constituting the
graver charge became known or
frustrated homicide, that is the time
were discovered only after a
the prosecutor learned that Kim died. plea was entered in the former
He now wants to change to complaint or information;
consummated homicide.
So even if the graver offense was already
Can he change the information? The SC said, existing before the arraignment but it became
no more. The Melo doctrine does not apply there known only after the plea, there is no more
because you cannot say that the death of the double jeopardy. This amendment created
victim supervenes after the arraignment even another exception not covered by the Melo
before the arraignment, the victim was already doctrine.
dead. The crime of consummated homicide was
already in existence. Mortz could have been
charged already when he was arraigned. Pero THE PLEA OF GUILTY TO THE LESSER
hindi man namin alam? Ah pasensya, that is OFFENSE WAS MADE WITHOUT
your risk. So that is where the Melo doctrine THE CONSENT OF THE PROSECUTOR AND OF
cannot apply. THE OFFENDED
This creates unfairness eh. There were cases 1(F) OF RULE 116.
where that really happens. Like in one case
where the accused was charged with physical You know this plea-bargaining, plea of
injuries in the arm of the victim. Less serious guilty to a lesser offense it must be wit the
physical injuries, because the doctor said it consent of the prosecutor and the offended party.
would heal in two weeks. He was charged, And remember, once there is a plea-bargaining,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 138

you cannot be charged anymore for the graver Q: Under the new rules there is now a
offense except as provided in Section 1 [f], Rule deadline. The case is provisionally dismissed, up
116 when during the plea-bargaining the to when?
offended party will not show up, in which case, A: MTC cases within one (1) year to revive.
the consent of the prosecutor alone is required. RTC cases within two (2) years to revive.
This is a provision which compels the offended
party to appear in the plea-bargaining. After 1 or 2 years, as the case maybe, the
Otherwise, the accused may offer to plea guilty to provisional dismissal becomes permanent. So
a lesser offense and the prosecutor will say, OK meron ng deadline so that the prosecutor or the
you are bound because you did not appear. offended party will not buy his time, ah
provisional! Puwede yan anytime! Before kasi
Q: But suppose Mortz has already started noon, ganun eh. So there must be a deadline.
serving his sentence for frustrated homicide?
A: There is no problem because under the last SEC. 9. Failure to move to
quash or to allege any ground
paragraph of Section 7, In any of the foregoing therefore. The failure of the
cases, where the accused satisfies or serves in accused to assert any ground of
whole or in part the judgment, he shall be a motion to quash before he
pleads to the complaint or
credited with the same in the event of conviction information, either because he
for the graver offense. did not file a motion to quash
or failed to allege the same in
said motion, shall be deemed a
waiver of any objections except
SEC. 8. Provisional those based on the grounds
dismissal. A case shall not provided for in paragraphs (a),
be provisionally dismissed (b), (g), and (i) of section 3
except with the express consent of this Rule. (8a)
of the accused and with notice
to the offended party.
The provisional dismissal of Q: What is the effect if the person does not file
offenses punishable by any motion to quash?
imprisonment not exceeding six
(6) years or a fine of any A: He is WAIVING the grounds for the
amount, or both, shall become motion to quash, EXCEPT:
permanent one (1) year after 1. lack of jurisdiction over the subject
issuance of the order without
the case having been revived. matter; (Section 3 [a])
With respect to offenses 2. the information does not charge any
punishable by imprisonment of offense; (Section 3 [b])
more than six (6) years, their
provisional dismissal shall 3. the criminal liability has already been
become permanent two (2) years extinguished; (Section 3 [g])
after issuance of the order 4. double jeopardy. (Section 3 [i])
without the case having been
revived. (n)
Meaning, even if you did not raised it in the
Section 8 is an entirely new provision. beginning, you can still raised it during the trial.
The rule is similar to civil procedure defenses
The concept of provisional dismissal means and objections not raised in a motion to dismiss
there is no double jeopardy the case is are deemed waived, except 1.) lack of jurisdiction
temporarily dismissed. So obviously the element over the subject matter; 2.) res adjudicata; 3.) litis
of double jeopardy are not around. So, there is a pendentia; 4.) statute of limitations.
way for the case to be revived in the future. The
1985 rules has no direct provision governing
provisional dismissal. The guidelines are not
clear. You can re-file because there is no double
jeopardy. The problem is, can that be case be re-
filed 5 years after?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 139

unless a shorter period is provided for by

special laws or circular of the Supreme
Court, order a pre-trial.

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

Section 3. Non-appearance at pre-trial

The accused is not the one compelled to
RULE 118 appear, but only the counsel for the accused
or the prosecutor.
The sanctions or penalty may be in the form
of reprimand, fine or imprisonment.
Section 1. Pre-trial; mandatory in
Inasmuch as this is similar to indirect
criminal cases. contempt of court, the penalty for indirect
contempt may be imposed.
Pre-trial is MANDATORY in all criminal
cases. Section 4. Pre-trial order.
After the pre-trial, the court issues an order
MATTERS CONSIDERED IN PRE-TRIAL reciting actions taken, facts stipulated and
CONFERENCE: evidence marked, and thereafter the trial on
a. plea bargaining; the merits will proceed on matters not
a. stipulation of facts; disposed of during the pre-trial.
b. marking for identification of evidence of
the parties;
c. waiver of objections to admissibility of Rule 119
evidence; TRIAL
d. modification of the order of trial if the
accused admits the charge but interposes
a lawful defense; and SECTION 1. Time to prepare
e. such matters as will promote a fair and for trial. After a plea of
not guilty is entered, the
expeditious trial of the criminal and civil accused shall have at least
aspects of the case. (Secs. 2 & 3, Circ. fifteen (15) days to prepare
38-98) for trial. The trial shall
commence within thirty (30)
days from receipt of the pre-
Plea bargaining the process whereby the trial order. (sec. 6, cir. 38-
accused, the offended party and the 98)
prosecution work out a mutually satisfactory SEC. 2. Continuous trial
disposition of the case subject to court until terminated;
approval. It usually involves the defendants postponements. Trial once
commenced shall continue from
pleading guilty to a lesser offense or to only day to day as far as
one or some of the counts of a multi-count practicable until terminated.
indictment in return for a lighter sentence It may be postponed for a
reasonable period of time for
than that for the graver charge. good cause. (2a)
The court shall, after
The court shall after arraignment and within consultation with the
prosecutor and defense counsel,
30 days from the time the court acquires set the case for continuous
jurisdiction over the person of the accused, trail on a weekly or other
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 140

short-term trial calendar at of venue of cases or transfer

the earliest possible time so from other courts;
as to ensure speedy trial. In (6) Delay resulting from a
no case shall the entire trial finding of existence of a
period exceed one hundred prejudicial question; and
eighty (180) days from the (7) Delay reasonably
first day of trial, except as attributable to any period, not
otherwise authorized by the to exceed thirty (30) days,
Supreme Court. (sec. 8, cir. during which any proceeding
38-98). concerning the accused is
The time limitations actually under advisement.
provided under this section and (b) Any period of delay
the preceding section shall not resulting from the absence or
apply where special laws or unavailability of an essential
circulars of the Supreme Court witness.
provide for a shorter period of For purposes of this
trial. (n) subparagraph, an essential
witness shall be considered
absent when his whereabouts are
After the accused is arraigned, there is a unknown or his whereabouts
minimum of 15 days to prepared for the trial. cannot be determined by due
And then continuous trial until terminated. The diligence. He shall be
considered unavailable whenever
trial period shall not exceed 180 days, taken from his whereabouts are known but
the Speedy Trial Act and SC Circulars. They are his presence for trial cannot
now incorporated in the new rules. be obtained by due diligence.
(c) Any period of delay
resulting from the mental
There are many provisions here which are incompetence or physical
new in the sense that they are found in the rules inability of the accused to
stand trial.
for the first time. However, even before the new (d) If the information is
rules took effect, they were considered as already dismissed upon motion of the
existing provisions because of the Speedy Trial prosecution and thereafter a
charge is filed against the
Act and SC Circular 38-98. Ngayon, nandito na. accused for the same offense,
So we will not go over them one by one. I will just any period of delay from the
point them out. date the charge was dismissed
to the date the time limitation
would commence to run as to the
The new provisions are Section 3 up to subsequent charge had there
Section 10: been no previous charge.
(e) A reasonable period of
delay when the accused is
SEC. 3. Exclusions.- The joined for trial with a co-
following periods of delay accused over whom the court has
shall be excluded in computing not acquired jurisdiction, or,
the time within which trial as to whom the time for trial
must commence: has not run and no motion for
(a) Any period of delay separate trial has been
resulting from other granted.
proceedings concerning the (f) Any period of delay
accused, including but not resulting from a continuance
limited to the following: granted by any court motu
(1) Delay resulting from an proprio, or on motion of either
examination of the physical and the accused or his counsel, or
mental condition of the the prosecution, if the court
accused; granted the continuance on the
(2) Delay resulting from basis of its findings set forth
proceedings with respect to in the order that the ends of
other criminal charges against justice served by taking such
the accused; action outweigh the best
(3) Delay resulting from interestof the public and the
extraordinary remedies against accused in a speedy trial.
interlocutory orders; (sec. 9, cir. 38-98)
(4) Delay resulting from
pre-trial proceedings; SEC. 4. Factors for granting
provided, that the delay does continuance. The following
not exceed thirty (30) days; factors, among others, shall be
(5) Delay resulting from considered by a court in
orders of inhibition, or determining whether to grant a
proceedings relating to change
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 141

continuance under section 3(f) knows that he latter is

of this Rule. preventively detained, either
(a) Whether or not the because he is charged with a
failure to grant a continuance bailable crime but has no means
in the proceeding would likely to post bail, or, is charged
make a continuation of such with a non-bailable crime, or,
proceeding impossible or result is serving a term of
in a miscarriage of justice; imprisonment in any penal
and institution, it shall be his
(b) Whether or not the case duty to do the following:
taken as a whole is so novel, (a) Shall promptly undertake
unusual and complex, due to the to obtain the presence of the
number of accused or the nature prisoner for trial or cause a
of the prosecution, or that it notice to be served on the
is unreasonable to expect person having custody of the
adequate preparation within the prisoner requiring such person
periods of time established to so advise the prisoner of
therein. his right and demand trial.
In addition, no continuance (b) Upon receipt of that
under section 3(f) of this Rule notice, the custodian of the
shall be granted because of prisoner shall promptly advise
congestion of the courts the prisoner of the charge and
calendar or lack of diligent of his right to demand trial.
preparation or failure to If at anytime thereafter the
obtain available witnesses on prisoner informs his custodian
the part of the prosecutor. that he demands such trial, the
(sec. 10, cir. 38-98) latter shall cause notice to
that effect to be sent promptly
SEC. 5. Time limit following to the public attorney.
an order for new trial. If (c) Upon receipt of such
the accused is to be tried notice, the public attorney
again pursuant to an order for shall promptly seek to obtain
a new trial, the trial shall the presence of the prisoner
commence within thirty (30) for trial.
days from notice of the order, (d) When the custodian of
provided that if the period the prisoner receives from the
becomes impractical due to public attorney a properly
unavailability of witnesses and supported request for the
other factors, the court may availability of the prisoner
extend but not to exceed one for purpose of trial, the
hundred eighty (180) days. For prisoner shall be made
the second twelve-month period, available accordingly. (sec.
the time limit shall be one 12, cir. 38-98)
hundred eighty (180) days from
notice of said order for new SEC. 8. Sanctions. In any
trial. (sec 11, cir. 38-98) case in which private counsel
for the accused, the public
SEC. 6. Extended time attorney, or the prosecutor:
limit.- Notwithstanding the (a) Knowingly allows the
provisions of section 1(g), case to be set for trial
Rule 116 and the preceding without disclosing that a
section 1, for the first necessary witness would be
twelve-calendar-month period unavailable for trial;
following its effectivity on (b) Files a motion solely
September 15, 1998, the time for delay which he knows is
limit with respect to the totally frivolous and without
period from arraignment to merit;
trial imposed by said provision (c) Makes a statement for
shall be one hundred eighty the purpose of obtaining
(180) days. For the second continuance which he knows to
twelve-month period, the time be false and which is material
limit shall be one hundred to the granting of a
twenty (120) days, and for the continuance; or
third twelve-month period, the (d) Willfully fails to
time limit shall be eighty (80) proceed to trial without
days. (sec. 7, cir. 38-98) justification consistent with
the provisions hereof, the
SEC. 7. Public attorneys court may punish such counsel,
duties where accused is attorney, or prosecutor, as
imprisoned. If the public follows:
attorney assigned to defend a (1) By imposing on a counsel
person charged with a crime privately retained in
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connection with the defense o charge of denial of the right

fan accused, a fine not to speedy trial guaranteed by
exceeding twenty thousand pesos section 14(2), article III, of
(P20,000.00); the 1987 Constitution. (sec.
(2) By imposing on any 15, cir. 38-98)
appointed counsel de oficio,
public attorney, or prosecutor
a fine not exceeding five Take note of Section 9 and 10. Please correlate
thousand pesos (P5,000.00); and this on the rights of the accused to speedy trial as
(3) By denying any defense mention in Section 1[h] of Rule 115 on the rights
counsel or prosecutor the right
to practice before the court of the accused.
trying the case for a period
not exceeding thirty (30) days. SEC. 11. Order of trial.
The punishment provided for by The trial shall proceed in the
this section shall be without following order:
prejudice to any appropriate (a) The prosecution shall
criminal action or other present evidence to prove the
sanction authorized under these charge and, in the proper case,
rules. (sec. 13, cir. 38-98) the civil liability.
(b) The accused may present
evidence to prove his defense
There is something here in Section 8 that I and damages, if any, arising,
want to bring out mga kastigo, sanctions ba! from the issuance of a
Alam mo ang kawawa dito, mga abogado eh provisional remedy in the case.
(c) The prosecution and the
fiscals, defense counsels, even the PAO lawyers defense may, in that order,
if they are responsible for delaying the trial of the present rebuttal and sur-
criminal case. rebuttal evidence unless the
court, in furtherance of
justice, permits them to
Just imagine, P20,000 if it is the private present additional evidence
defense lawyer. That is the maximum of course. bearing upon the main issue.
(d) Upon admission of
Ang PAO naman, P5,000 75% discount! Ma- evidence of the parties, the
suspend ka pa. case shall be deemed submitted
for decision unless the court
SEC. 9. Remedy where accused directs them to argue orally or
is not brought to trial within to submit written memoranda.
the time limit. If the (e) When the accused admits
accused is not brought to trial the act or omission charged in
within the time limit required the complaint or information
by Section 1(g), Rule 116 and but interposes a lawful
Section 1, as extended by defense, the order of trial may
Section 6 of this rule, the be modified. (3a)
information may be dismissed on
motion of the accused on the The order of the trial in the criminal case is
ground of denial of his right
to speedy trial. The accused almost the same pattern as in civil cases.
shall have the burden of
proving the motion but the Q: Who presents evidence first?
prosecution shall have the
burden of going forward with A: The prosecution. Under Section 11 [a],
the evidence to establish the The prosecution shall present evidence to prove
exclusion of time under section the charge and, in the proper case, the civil
3 of this rule. The dismissal
shall be subject to the rules liability. So you prove the charge and the civil
on double jeopardy. liability.
Failure of the accused to
move for dismissal prior to
trial shall constitute a waiver Q: Ano yung in the proper case?
of the right to dismiss under A: That is because if the civil liability has
this section. (sec. 14, cir. already been reserved, ah wala na forget
evidence of civil liability where there is already
SEC. 10. Law on speedy trial reservation. Pero kung hindi, then it is deemed
not a bar to provision on instituted with the criminal case.
speedy trial in the
Constitution. No provision of
law on speedy trial and no rule Under paragraph [b], provisional remedies
implementing the same shall be are allowed in criminal cases, like attachments,
interpreted as a bar to any
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etc. in the same way if the civil action is deem supported by an affidavit of
the accused and such other
instituted, the offended party can ask a evidence as the court may
preliminary attachment of the property under require. (4a)
Rule 127.
Q: How is deposition in criminal cases being
Paragraph [e] refers to trial in reverse. The done?
best example is when the accused raises self- A: Read Section 13:
defense. The burden of proof is automatically
shifted to the accused. But this should be SEC. 13. Examination of
defense witness; how made. If
included during the pre-trial as provided under the court is satisfied that the
Rule 118, Section 1 [e]: examination of a witness for
the accused is necessary, an
SECTION 1. Pre-trial; order shall be made directing
mandatory in criminal cases. that the witness be examined at
In all criminal cases a specific date, time and place
cognizable by the and that a copy of the order be
Sandiganbayan, Regional Trial served on the prosecutor at
Court, Metropolitan Trial least three (3) days before the
Court, Municipal Trial Court in scheduled examination. The
Cities, Municipal Trial Court examination shall be taken
and Municipal Circuit Trial before a judge, or, if not
Court, the court shall, after practicable, a member of the
arraignment and within thirty Bar in good standing so
(30) days from the date the designated by the judge in the
court acquires jurisdiction order, or if the order be made
over the person of the accused, by a court of superior
unless a shorter period is jurisdiction, before an
provided for in special laws or inferior court to be designated
circulars of the Supreme Court, therein. The examination shall
order a pre-trial conference to proceed notwithstanding the
consider the following: absence of the prosecutor
x x x x x x x provided he was duly notified
(e) modification of the of the hearing. A written
order of trial if the accused record of the testimony shall
admits the charge but be taken. (5a)
interposes a lawful defense;
x x x x x x x The grounds are almost identical. This is
deposition actually. Only, it is called conditional
Q: Is there such a thing as deposition-taking examination. That is the term used here.
in criminal cases?
A: YES, under Section 12: Take note, connect this with Section 1[f], Rule
115 rights of the accused. Section 12 is an
SEC. 12. Application for
examination of witness for exception to the right to confront and cross-
accused before trial. When examine because you cannot insist during the
the accused has been held to trial to confront and cross-examine the witness
answer for an offense, he may,
upon motion with notice to the under Rule 115 Section 1[f] when we was already
other parties, have witnesses examined under Section 12.
conditionally examined in his
behalf. The motion shall state:
(a) the name and residence of Q: Is the remedy of deposition-taking also
the witness; (b) the substance available to the prosecution?
of his testimony; and (c) that A: YES, under Section 15:
the witness is sick or infirm
as to afford reasonable ground
for believing that the will not SEC. 15. Examination of
be able to attend the trial, or witness for the prosecution.
resides more than one hundred When it is satisfactorily
(100) kilometers from the place appears that a witness for the
of trial and has no means to prosecution is too sick or
attend the same, or that other infirm to appear at the trial
similar circumstances exist as directed by the court, of
that would make him unavailable has to leave the Philippines
or prevent him from attending with no definite date of
the trial. The motion shall be returning, he may forthwith be
conditionally examined before
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the court where the case is testigo, wala kang magawa. But under Section
pending. Such examination, in
the presence of the accused, or 14, you can ask the court to order the witness to
in his absence after reasonable post bail. And if he refuses to post bail, he can be
notice to attend the arrested. This is an instance where a witness can
examination has been served on
him, shall be conducted in the be jailed ahead of the accused.
same manner as an examination
at the trial. Failure or But actually the truth is in most cases,
refusal of the accused to
attend the examination at the prosecution witnesses do not appear not because
trial. Failure or refusal of ayaw but because takot! They are afraid of what
the accused to attend the will happen like the accused might harass them.
examination after notice shall
be considered a waiver. The And the law knows that. That is why there is also
statement taken may be admitted another alternative RA 6981, The Witness
in behalf of or against the Protection Program which took effect last April of
accused. (7a)
1991. You read that so you will have an idea.
Let us try to compare Section 13 (defense) and SEC. 16. Trial of several
Section 15 (prosecution): Lets go to the defense accused. When two or more
witness under Section 13: accused are jointly charged
with an offense, they shall be
tried jointly unless the court,
Q: Before whom will the examination of the in its discretion and upon
witness be taken? motion of the prosecutor or any
accused, orders separate trial
A: It DEPENDS before the judge, or if not for one or more accused. (8a)
practicable, a member of the bar in good standing
designated by the judge in the order. Remember that there can be a joint trial of two
or more criminal cases if they arose of the same
Now, you compare that with Section 15. In incident like Judee fired her AK-47 and killed two
Section 15, you will notice: he may forthwith be or more people one after the other. But you
conditionally examined before the court where the case cannot file one information because that will be
is pending. Unlike in Section 13 before the duplicitous. There must be one information for
judge, or if not practicable, a member of the bar in every one homicide and then you move for a joint
good standing it is more lenient no? trial.

Q: What is the reason why the law is more Q: Now, how do you compare this rule with
generous to the defense witness? civil cases?
A: According to one case through Justice Feria, A: In civil cases, when there is a common
this is because the government has the resources question of fact or law involving two or more
to get he testimony of its witnesses. Pero ang parties, there is such a thing as filing only one
defense may have a hard time lalo na kapag complaint joinder of causes of action or parties.
pobre. But in criminal cases, that is not allowed.
Consolidation in criminal cases in only for the
SEC. 14. Bail to secure
appearance of material witness. purpose of joint trial lang and you cannot have
When the court is satisfied, one information charging more than one offense.
upon proof of oath, that a
material witness will not
testify when required, it may, DISCHARGE OF AN ACCUSED TO BE
upon motion of either party, STATE WITNESS
order the witness to post bail
in such sum as may be deemed
proper. Upon refusal to post SEC. 17. Discharge of
bail, the court shall commit accused to be state witness.
him to prison until he complies When two or more persons are
or is legally discharged after jointly charged with the
his testimony has been taken. commission of any offense, upon
(6a) motion of the prosecution
before resting its case, the
court may direct one or more of
It seems that the prosecution here is under the the accused to be discharged
mercy of his witnesses. Meaning, kung ayaw ng with their consent so that they
may be witnesses for the state
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when, after requiring the SAID ACCUSED DOES NOT APPEAR TO

prosecution to present evidence
and the sworn statement of each BE THE MOST GUILTY.
proposed state witness at a
hearing in support of the Lets comment on some of the requirements.
discharge, the court is
satisfied that: One of the most important requirements for the
(a) There is absolute discharge of an accused is the fourth one Said
necessity for the testimony of accused does not appear to be the most guilty. Based
the accused whose discharge is
requested; from what I read from time to time, even lawyers
(b) There is no other direct have been commenting on this. It seems they are
evidence available for the misquoting this eh, like 2 days ago, a lawyer said
proper prosecution of the
offense committed, except the that we must discharge the accused because he is
testimony of said accused; the least guilty.
(c) The testimony of said
accused can be substantially
corroborated in its material That is not what the law says! What the law
points; says is, HE DOES NOT APPEAR TO BE THE
(d) Said accused does not MOST GUILTY. And it is not the same with HE
appear to be the most guilty;
(e) Said accused has not at
any time been convicted of any EXAMPLE: Mortz, Pao and Jet. Mortz
offense involving moral
turpitude. principal; Pao accomplice; Jet accessory. Pag-
Evidence adduced in support sinabi mong the least guilty, hindi mo
of the discharge shall puwedeng gamitin si Pao. Si Jet dapat ang
automatically form part of the
trial. If the court denies the gamitin mo because he is the least guilty. [Tsk! tsk!
motion for discharge of the Ginamit si Jet. Ginamit!] PERO, pag-sinabi mong he does
accused as state witness, his not appear to be the most guilty, you can use Pao,
sworn statement shall be
inadmissible in evidence. (9a) although there is somebody to be less guilty.
Basta ang importante, hindi si Mortz. So, there is
SEC. 18. Discharge of a difference between the two phrases.
accused operates as acquittal.
The order indicated in the
preceding section shall amount Q: What do you mean by the phrase does not
to an acquittal of the
appear to be the most guilty?
discharged accused and shall be
a bar to future prosecution for A: There are cases:
the same offense, unless the
accused fails or refuses to
testify against his co-accused
in accordance with his sworn August 17, 1992
statement constituting the
basis for his discharge. (10a) FACTS: This case involved a hold-
upping incident, committed in a bus in
Lets take Section 17 and Section 18 together. Manila while traveling in the North
Discharge of an accused to be state witness means Express Way. There were four (4)
that you will convert an accused to become hold-uppers who rode in the bus.
Hudas, save his neck but hang them all! When they reach a certain point, they
stood up and pulled to their guns and
Under Section 18, once the witness is robbed the passengers. And they
discharged under Section 17, he is now placed themselves strategically: One of
CONSIDERED ACQUITTED and there is no way them stood behind the driver, o, wag
for him to be brought back in the case EXCEPT kang kikilos, drive ka lang. Yung iba
when he changes his mind and ayaw na niyang namang dito. Kanya-kanyang silang
mag-testify. That is the only exception. role eh. The others were the ones who
divested the passengers, mga pitaka
Q: What are the requirements before a witness ninyo, relo lahat!
can be discharged? Now, there was one passenger
A: Section 17 enumerates the requirements. there who was a military man wearing
civilian clothes and may baril siya. So
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he wanted to fight back but one of whether he will be a state witness or not. You
them saw him. Pag-bunot niya, cannot discharge on your own. Remember under
inunahan siya! So accused A shot that the Rules, the prosecutor is bound to file the
passenger. Accused D naman saw A information against ALL those who appear to be
shoot the victim. And of course all of responsible including this guy who you want to
them were charged with Robbery use as state witness. But when you reach the
with Homicide in conspiracy - the act court, you file a motion to discharge and let the
of one is the act of all. court who will do it.
The prosecution wants to utilize D
the one who is behind the driver as And under the New Rules, there must be a
state witness. The other accused HEARING to determine whether there should be
objected claiming conspiracy we are discharge or not. Thats why the rule said, the
all co-principal the act of one is the trial court must require the prosecution to present
act of all. So why do you say you are evidence and the sworn statement of each proposed
not the most guilty? Pare-pareho lang state witness at a hearing in support of the discharge.
tayo. Same penalty. So, there must be an affidavit and there must be a
ISSUE: Will accused D be
qualified under the phrase does not In the 1985 Rules, there was no need of a
appear to be the most guilty? hearing. No need for the prosecution to present
evidence. Normally the fiscal will just file a
HELD: YES. When you say he motion that we would like to use this witness and
does not appear to be the most guilty, the court will discharge. Now, hindi na pwede
you do not apply the rule on yan because in most cases in the past, a person is
conspiracy. But you apply the rule on discharge and it turns out that he is the most
individual acts. In reality, who is more guilty. To avoid that possibility, there is now
guilty? The one who really shot the need to present affidavit, etc. and there must be a
victim or the one who is just behind hearing. The court will require presentation of
the driver? The reality is, the most evidence and it will decide whether or not to
guilty is the one who shot, although discharge.
for purposes of the RPC both of you
are co-principal. So, you look at it that Now, sabi ng court in the hearing for the
way. Do not apply the principle of the discharge of the accused, There is no need to
act-of-the-one-is-the-act-of-all. You discharge him. Motion to discharge, denied! So sabi
consider the most guilty in terms of ng accused, Kawawa na ako nito because I already
the participation. admitted the crime in my affidavit! Tapos, hindi pala
By most guilty means the highest ako qualified! [nak ng pating naman o!]. What will
degree of culpability in terms of happened to you now? You Look at the last
participation in the commission of the paragraph of Section 17:
offense and not the severity of the
Evidence adduced in support
penalty imposed. While all the of the discharge shall
accused maybe given the same penalty automatically form part of the
but by reason of culpability one may trial. If the court denies the
motion for discharge of the
be least guilty if we take into account accused as state witness, his
his degree of participation in the sworn statement shall be
perpetuation of the offense. inadmissible in evidence.

So that is fair enough because the affidavit

Q: Generally, when the fiscal, after criminal which is practically an admission of his
investigation, believes that one of them can be a participation, then if he is not discharged, do not
state witness, therefore he will not include his use it against him. It is inadmissible as evidence
name in the information. Is it allowed? against him. The leading case in this issue is the
A: NO, you have to include him first before 1993 case of
he can be a state witness. Let the court decide
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PEOPLE vs. CA AND lack of actual hearing was not fatal

INSPECTOR JOE PRING enough to undermine the court's
223 SCRA 475 ability to determine whether the
conditions prescribed under Section
FACTS: Pring was involved in 17, Rule 119 were satisfied.
kidnapping and one policeman
testified against him Nonilo Arile.
There was a motion to discharge Arile So there is already substantial compliance
to testify against Pring. Then the with the hearing. And that was the first case
prosecution gave the defense the interpreting this new provision after the 1985
affidavit of Arile. Based on that, the Rules. But for the merits, later na-acquit man si
court ordered the discharge of Arile. Pring ba which is a different issue. Yung dito,
Pring questioned the procedure. This discharge lang ang issue eh. On the merits, he was
is the first case where the SC applied acquitted. But after one year from his acquittal,
this rule on hearing on the discharge pinatay naman siya ng ABB. Sabi nila (ABB),
of an accused. Sabi ni Pring, Where is kung nakaligtas ka sa court, sa amin hindi ka
the hearing? Prosecution: Yon palang makaligtas. Thats what happened there.
motion to discharge na binigay namin sa
inyo? Pring: Ah, hindi naman Q: Normally, when is an accused discharged?
hearing yun! Hearing means, ilagay A: He is discharged before he testifies. You
mo si Arile sa witness stand subject to will use him. Thats why he is going to be
cross-examination because even under discharged. However, in the 1992 case of
Section 17, evidence adduced to
support the discharge shall ROSALES vs. COURT OF
automatically form part of the trial. APPEALS
Meaning, the state witness will not 215 SCRA 102
testify again. So what is contemplated
here is personal testimony and not the FACTS: The prosecution wants to
affidavit. use an accused as a witness and he
was willing. Sabi ng prosecution, We
ISSUE: Is the argument of Pring will file a motion to discharge you to
correct? be state witness. The accused said,
Hwag! Hwag!.. if you will do that
HELD: NO. Hearing means, you patay ako! Patayin talaga nila ako.
have the opportunity to read what he They will not allow me to testify. But
will say and the opportunity to object. still the prosecution used him. He took
Yan ang ibig sabihin ng hearing. Hindi a stand and he pointed to all his
kailangan na he will be questioned companions. So he testified first bago
personally in court. That satisfies the nag-file ng motion to discharge ang
requirement of hearing. prosecution.
Hence, in resolving the issue in
this petition, the proper question we ISSUE: Is that correct? Can the
should address is: Was there a failure testimony come ahead before the
to observe the spirit and intent of discharge?
Section 17, Rule 119 in the case at bar?
We rule in the NEGATIVE. The HELD: YES because of the peculiar
prosecution has submitted the sworn fact his life is in danger eh. Anyway
statement of accused Nonilo Arile and according to the law, should the
its evidence showing that the discharge be made, is should be made
conditions for discharge have been by the prosecution before resting its
met. Neither can it be denied that the case (Section 17). In the case at bar, at
defense was able to oppose the motion that moment, the prosecution has not
to discharge Nonilo Arile. With both rested its case. So puwede.
litigants able to present their side, the
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While it is the usual practice of qualification. There is no violation of marital

the prosecution to present the accused disqualification or attorney-client confidentiality,
who turns state witness only after his etc. Wala man! So you go back to Evidence. The
discharge, the trial court may testimony of the witness is qualified although it
nevertheless sanction his discharge might be polluted and he did it to save his game
after his testimony if circumstances so that is not enough to make his testimony
warrant. In the case before Us, the inadmissible.
imminent risk to his life justified the
deviation from the normal course of Q: One thing more, who can discharge the
procedure as a measure to protect him witness?
while at the same time ensuring his A: The court where the very case is pending.
undaunted cooperation with the Thats the rule the court where the case is
prosecution. Indeed, as is explicit from pending.
the Rule, as long as the motion for
discharge of an accused to be utilized BAR QUESTION: What happens when an
as a state witness is filed before the accused is discharged, and after he is discharged,
prosecution rests, the trial court sabi ng prosecution, Teka muna nagkamali ako, di
should, if warranted, grant it. pala kita kailangan. Balik ka! Can it be done?
A: Sabi ng SC, NO, acquitted na yan! The only
reason for him to come back is, he is asked to
Q: What happens if an accused who is the testify pero ayaw niya. Prosecution: But I dont
most guilty is erroneously discharged ang mga need him. SC: that is your fault because first, why
naiwan, yung mga pipitsugin? Is the erroneous did you ask for his discharge? So once he is
discharge valid? Is he deemed acquitted? discharged, he is deemed acquitted whether you
A: The SC said YES. Even if there is a mistake, use him or do not use him. The only way for him
he is now acquitted once he is discharged. His to come back is, you want to use him but he does
testimony is admissible. In the case of not want to testify because he is double-crossing
the Government.
JUDGE PEDRO SON Lets go further. There is another law, about
209 SCRA 329 (May 27, 1992) this witness. You try to compare this principle
with the provision of RA 6981 The Witness
HELD: Any witting or unwitting Protection Act. Under RA 6981, the fiscal would
error of the prosecution in asking for not even include you in the charge anymore, for
the discharge of an accused and of as long as the DOJ will say that he is qualified, he
the trial court in granting the petition is covered by the Witness Protection Program.
for discharge, so long as no question Under the law, the fiscal should not include him
of jurisdiction is involved, would not anymore.
deprive the discharged accused of the Unlike in criminal procedure kailangan isali
acquittal that is specified in Section 10 ka muna bago ka i-discharge. Sa RA 6981 naman,
of Rule 119 and of the constitutional hindi ka na kasali. That is why the
guarantee against double jeopardy. It constitutionality of the law was challenged in the
is also relevant to note that the case of
improper or mistaken discharge of an
accused would not affect his WEBB vs. DE LEON
competency as a witness or render August 23, 1995
inadmissible his testimony.
FACTS: State witness Alfaro
Q: Lets go back to Evidence. He is the most admitted that she was with them. She
guilty. His discharge was wrong. Is his testimony admitted kasama siyang nagpunta sa
admissible? bahay ng mga Vizconde. And then she
A: YES, because he can perceive and was placed in the Witness Protection
perceiving and he can make known his Program and was used against Hubert
perception to others. That is the only Webb. And according to Webb, the
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provision of the Witness Protection HELD: Simple! In the Witness

Act which authorizes the DOJ to Protection Program, the accused is
place somebody in the Witness NOT even accused in any case yet.
Protection Program, and once he Wala pa! But once he is accused, you
certifies that she is covered, the fiscal need the consent of the court to
is no longer allowed to file a case discharge, that is kapag kasali na! Pero
against her (state witness) is kung hindi pa kasali, there is no need
violative of the judicial prerogative to for the courts consent to decide
discharge a witness because you because that is an executive function.
jumping the gun on the court.
According to Webb, it should be ISSUE #3: And why is the courts
the court that will discharge and not consent necessary once the accused is
the DOJ. The law is not valid because charged in court?
it is an encroachment of a judicial HELD: This is because the court
prerogative. It is an intrusion for it is has already acquired jurisdiction over
only the court which has the power the person of the accused. So the SC
under the rules on criminal procedure said, Section 17 of Rule 119 does not
to discharge an accused as state support the proposition that the
witness. power to choose who shall be a state
witness is an inherent judicial
ISSUE #1: Is Webbs argument prerogative. Under this provision the
valid? court is given the power to discharge
HELD: Webbs argument lacks as state witness only because it has
appeal for it lies on the faulty already acquired jurisdiction over the
assumption that the decision whom to crime and the accused. The discharge
prosecute is a judicial function, the of an accused is part of the exercise of
sole prerogative of courts and beyond jurisdiction but is not a recognition of
executive and legislative interference. an inherent judicial function.
In truth, the prosecution of crimes
appertains to the executive ISSUE #4: Is it wise for Congress
department of government whose to enact this law? Why will Congress
principal power and responsibility is enact this kind of law that will
to see that our laws are faithfully determine that the witness will not be
executed. A necessary component of included in the information?
this power to execute our laws is the HELD: YES. It is a wise legislation.
right to prosecute their violators. The Moreover, the Rules of Court have
right to prosecute vests the prosecutor never been interpreted to be beyond
with a wide range of discretion the change by legislation designed to
discretion of whether, what and whom improve the administration of our
to charge, the exercise of which justice system. The Witness Protection
depends on a smorgasbord of factors Act is one of the much sought penal
which are best appreciated by reform laws to help government in its
prosecutors. We thus hold that it is not uphill fight against crime, one certain
constitutionally impermissible for cause of which is the reticence of
Congress to enact R.A. No. 6981 witnesses to testify.
vesting in the Department of Justice
the power to determine who can
qualify as a witness in the program SEC. 19. When mistake has
been made in charging the
and who shall be granted immunity proper offense. When it
from prosecution. becomes manifest at any time
before judgment that a mistake
has been made in charging the
ISSUE #2: How do you reconcile proper offense and the accused
this ruling with the rule that only the cannot be convicted of the
court has the power to discharge? offense charged or any other
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 150

offense necessarily included court to invest it with the requisite

therein, the accused shall not
be discharged if there appears authority to direct by itself the
good cause to detain him. In dismissal and re-filing of the
such case, the court shall informations therein
commit the accused to answer
for the proper offense and contemplated; whereas
dismiss the original case upon Rule 110 is directed to the prosecutor
the filing of the proper who can and should institute
information. (11a)
remedial measures for the
dismissal of the original
You co-relate Section 19 with the last
information and the re-filing of the
paragraph of Section 14, Rule 110:
correct one, otherwise he would be
If it appears at anytime recreant to his duties;
before judgment that a mistake
has been made in charging the 3. In Rule 119, evidence is necessarily
proper offense, the court shall
dismiss the original complaint being presented, hence the trial
or information upon the filing court is now in a better position to
of a new one charging the conclude that manifestly the
proper offense in accordance
with section 19, Rule 119, accused cannot be convicted of the
provided the accused shall not offense charged or of one that it
be placed in double jeopardy. necessarily includes; whereas
The court may require the
witnesses to give bail for In Rule 110, since no evidence has
their appearance at the trial. been presented at that stage, the
error would appear or be
So the same no? The accused shall be discoverable from a review of the
discharge because of a wrong information upon records of the preliminary
filing of the correct one. So Section 14 of Rule 110 investigation; and
and Section 19 of Rule 119 talk of the same thing.
4. In Rule 119, the permissible stage for
QUESTION: how will you distinguish the effecting that substitution is at any
two provisions? Kung tingnan mo mukang time before judgment; whereas
pareho eh. But for academic purposes, there are In Rule 110, it is sufficient that it
differences made by Justice Regalado in the 1994 appearsthat a mistake has been
case of GALVEZ VS. CA (237 SCRA 685) Alam made in charging the proper
mo itong si Regalado, siya din ang nag- offense which situation
distinguish ng amendment and substitution of contemplates a longer time span,
information under Rule 110 which was asked in inclusive of the period from the
the bar and thoroughly discussed in the case of filing of the information up to and
TEEHANKEE VS. MADAYAG. In the case of before trial.
Galvez naman, gi-distinguish naman niya ang
Section 14 Rule 110 and Section 19 Rule 119. So after I read the case of Galvez, I said
Regalado has a very sharp mind. Masyadong
Q: Distinguish Section 14 of Rule 110 and matalas and utak ba! A very small distinction,
Section 19 of Rule 119. makita niya eh. And it takes pain to analyze. That
A: For academic purposes, the following are is the product of a sharp mind. But no wonder
the distinctions: because pag-kuha niya ng bar, 96.70% gud ang
average niyan! He is the highest for the record.
1. Rule 119 is the rule specifically Sabi nila si Marcos. Yes, but that is not official.
governing the trial stage; whereas Istorya lang yun. Si Marcos nag oral examination
Rule 110 provides the procedural before the SC pero binabaan ang average. But on
governance for the prosecution of record, it is Regalado who is the highest in the
offenses; bar. Nobody has beaten that. Makita ninyo man
ba sa decisions niya. Masyadong matalas, very
2. Rule 119 is more directly and sharp!
principally directed to the trial
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This is the very issue now. Ive been reading

SEC. 20. Appointment of
acting prosecutor. When a
current newspaper reports that everybody is
prosecutor, his assistant or anticipating that the case against Erap will be
deputy is disqualified to act filed in the Sandiganbayan. The DOJ wants
due to any of the grounds
stated in section 1 of Rule 137 everything to be televised all over again. They
or for any other reason, the are filing a petition before the Supreme Court.
judge or the prosecutor shall There is a standing order of the Supreme Court
communicate with the Secretary
of Justice in order that the prohibiting it. It should not be televised because
latter may appoint an acting of what happened in the Aquino libel case
prosecutor. (12a) [Aquino vs. Beltran]. Because of that, ayaw na ng
SEC. 21. Exclusion of the SC na i-televised. It becomes a sarswela show
public. The judge may, motu ba! rather than an a public trial.
proprio, exclude the public
from the courtroom if the
evidence to be produced during Now, they want to justify it on the ground
the trial is offensive to that this involves public interest so the SC should
decency or public morals. He relax the rules. I cannot anticipate how the SC
may also, on motion of the
accused, exclude the public will resolve the matter because everybody has
from the trial except court gotten used to the impeachment trial so
personnel and the counsel of everybody wants to hear what is happening,
the parties. (13a)
especially if the person involved is Erap. Such a
standing memorandum was not applied to the
Section 21 is an exception to the rule found in
impeachment trial because it was not a judicial
Rule 115 about the right of the accused to a public
trial but a political trial. It is the Senate which
trial. There are some exceptions to that right.
controls the rules, not the courts. This is the
And under Section 21:
difference. But this case is before the
Sandiganbayan which is a different story.
1. the court may, moto propio, exclude the
public from the courtroom if the evidence
Because definitely many people would like to
to be produced during the trial is
go there but how do you get a seat them all in the
offensive to decency or public morals.
Sandiganbayan? You will have to exclude
Normally this applies in trial for the crime
hundreds, if not thousands and allow only the
of rape or in crimes against chastity,
entry of a few. But if it is televised, then
where the nature of the evidence is such
everybody can watch again.
that the public may want to go there
because they only want to listen to these SEC. 22. Consolidation of
sadiscious details of the testimony. The trials of related offenses.
public can be excluded. Only the lawyers, Charges for offenses founded on
the same facts or forming part
the parties are allowed inside. Yaan! of a series of offenses of
similar character may be tried
2. on motion of the accused, the court may jointly at the discretion of
the court. (14a)
exclude the public. That is his right to
speedy trial. Kung ayaw niya, e di okey
Do not confuse this consolidation here in Rule
119 with the consolidation in Rule 111.
Aside from the two exceptions, the other
In Rule 111, you are consolidating the
grounds where the public can be excluded, based
criminal case and the civil case the civil case
on American Jurisprudence are:
which is brought separately will be consolidated
1. To prevent disorder;
with the criminal case. Here in Rule 119, you are
2. To prevent embarrassment to a
consolidating two or more criminal cases which
are identical, founded on the same facts or
3. To limit attendance to seating
forming part of the same series of offense of
similar character. This is similar to consolidation
in Rule 31 on civil cases.
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But in civil cases, we can allow related cases presumption of innocence has already been
to be filed together eh joinder of parties, which disputively rebutted ba!]. But suppose the
is not allowed in criminal cases. The only prosecution has not proven the facts or not
practice allowed in criminal cases is proven the crime or my guilt, why will I present
consolidation. But there could be no such thing evidence? Why will I prove my innocence when
as joinder of accused in one information. Im still presumed innocent? Yaan! Yan ang
demurrer. The same thing in civil cases why
Lets go to Section 23 on Demurrer one of will you prove your defense when the plaintiff
the most important provisions in Rule 119. failed to prove his cause of action? So instead of
presenting evidence, he will file a demurrer.
SEC. 23. Demurrer to Actually its a motion to dismiss.
evidence. After the
prosecution rests its case, the
court may dismiss the action on Now of course, it is now emphasized in
the ground of insufficiency of paragraph 1 that a demurrer may be filed with or
evidence (1) on its own
initiative after giving the without leave of court. Leave of court means before
prosecution the opportunity to your demurrer, you file muna a motion for
be heard or (2) upon demurrer permission to file the demurrer. The court grants
to evidence filed by the
accused with or without leave permission, you file the demurrer. You can still
of court. file the demurrer even without the permission of
If the court denies the the court. If you file demurrer with or without
demurrer to evidence filed with
leave of court, the accused may leave and it is granted, then you have no problem
adduce evidence in his defense. because the accused will be acquitted.
When the demurrer to evidence
is filed without leave of
court, the accused waives the The problem is, if your demurrer is denied.
right to present evidence and Meaning, the court says that there is sufficient
submits the case for judgment evidence to prove at least the guilt of the accused.
on the basis of the evidence
for the prosecution. (15a) If the demurrer was filed with prior leave of court
The motion for leave of and it is subsequently denied, the accused is
court to file demurrer to allowed to present evidence to prove his defense.
evidence shall specifically
state its grounds and shall be
filed within a non-extendible But if you filed the demurrer without prior
period of five (5) days after
the prosecution rests its case.
leave of court and the demurrer is denied, then
The prosecution may oppose the you are already convicted because the accused
motion within a non-extendible has forfeited his right to present evidence. It is
period of five (5) days from
its receipt.
practically equivalent to a waiver of his right to
If leave of court is present evidence. So conviction automatically
granted, the accused shall file follows. This is what the rules say.
the demurrer to evidence within
a non-extendible period of ten
(10) days from notice. The What is the rationale behind this? The 1997
prosecution may oppose the case of
demurrer to evidence within a
similar period from its
receipt. PEOPLE vs. TURINGAN
The order denying the motion 282 SCRA 424
for leave of court to file
demurrer to evidence or the
demurrer itself shall not be HELD: The rationale for the
reviewable by appeal or by rule is that when the accused
certiorari before judgment. (n)
moves for dismissal on the ground
of insufficiency of the prosecution
Demurrer is a motion to dismiss. After the
evidence, he does so in the belief
prosecution has rested its case, based on the order
that said evidence is insufficient to
of trial, the accused now presents his case. But
convict and, therefore, any need
sabi ng accused, Well, I will present evidence on
for him to present any evidence is
the assumption that the prosecution has proven
negated. It is said that an accused
prima facie the crime and my guilt. [meaning the
cannot be allowed to wager on the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 153

outcome of judicial proceedings by excess of jurisdiction, the trial court's

espousing inconsistent viewpoints denial of prior leave to file demurrer
whenever dictated by convenience. to evidence or motion to dismiss may
The purpose behind the rule is also not be disturbed. However, any
to avoid the dilatory practice of judgment of conviction by a trial court
filing motions for dismissal as a may still be elevated by the accused to
demurrer to the evidence of the the appellate court. [You cannot
prosecution and, after denial question the order of denial of prior
thereof, the defense would then leave, this is discretionary but you can
claim the right to present its appeal the judgment of conviction
evidence. itself.]

So, there is an inconsistency in saying that the

prosecutions evidence is not sufficient, and yet BAR QUESTION: How do you distinguish
when it is denied, OK, I will present evidence. the rule on demurrer of evidence in civil cases
Ahh di puwede yan! And many defense counsels with the rule of demurrer in criminal cases?
in the past have filed demurrer just to delay the A: The following are the distinctions:
presentation of evidence when there is no chance
for said demurrer to be granted. 1. In civil cases when the demurrer is
denied, the defendant will now
BERNARDO vs. COURT OF present his evidence to prove his
APPEALS defense because the defendant
278 SCRA 782 does not waive his right to present
in the event the demurrer is
HELD: The power to grant leave denied; whereas
to the accused to file a demurrer is In criminal cases, if the demurrer of the
addressed to the sound discretion of accused is denied the accused is no
the trial court. The purpose is to longer allowed to present evidence
determine whether the accused in if he had no prior leave;
filing his demurrer is merely stalling
the proceedings. [Is he really serious 2. In civil cases, if the defendants
or is only delaying the proceedings?] demurrer is granted and the case is
Judicial action to grant prior leave to dismissed and the plaintiff appeals
file demurrer to evidence is to the appellate court and on
discretionary upon the trial court. But appeal the court reverses the order
to allow the accused to present of dismissal, the appellate court
evidence after he was denied prior renders judgment immediately
leave to file demurrer is not against the defendant. Goodbye!
discretionary.[Meaning, when you talo na ang defendant. There is no
file a demurrer without prior leave, more remanding; whereas
you assume the risk eh because once In criminal cases, if the demurrer is
your demurrer is denied, you no granted, there is no more appeal
longer have a chance to present by the prosecution because the
evidence.] accused has already been
Once prior leave is denied and acquitted. Otherwise, there will be
the accused still files his demurrer to a case of double jeopardy;
evidence or motion to dismiss, the
court no longer has discretion to allow 3. In civil cases, the court cannot on its
the accused to present evidence. The own initiative, dismiss the case
only recourse left for the court is to after the plaintiff rests without any
decide the case on the basis of the demurrer by the defendant. There
evidence presented by the is no such thing as motu propio
prosecution. And, unless there is grave demurrer; whereas
abuse thereof amounting to lack or
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 154

In criminal cases, the court may

dismiss the action on its own The 1985 Rules just says you get prior leave.
initiative after giving the This is what I noticed here among trial courts:
prosecution the chance to present after the prosecution rests, sometimes the defense
its evidence. counsel will say, Your honor, we will file a
demurrer. May we ask for leave of court to file the
demurrer? And I noticed that the courts will say
Demurrer used to composed only of two Alright, leave granted, file your demurrer. Parang
paragraphs. Under the new rules, there are three naging automatic ba! Pag-hingi mo ng leave,
(3) new additional paragraphs. The additional bigay kaagad!
provisions are:
I was watching that and I do not seem to
The motion for leave of agree with that kind of set-up and I had the
court to file demurrer to
evidence shall specifically opportunity once in a criminal case where I was
state its grounds and shall be the private prosecutor where after we rested, the
filed within a non-extendible defense, in open court said, Your honor, we
period of five (5) days after
the prosecution rests its case. would like to ask permission for demurrer. And
The prosecution may oppose the the court said, Granted!. I said Your honor,
motion within a non-extendible this is not the correct procedure because he
period of five (5) days from
its receipt. doesnt even say what are his grounds for
If leave of court is demurrer. The court should not grant the
granted, the accused shall file permission immediately without those grounds.
the demurrer to evidence within
a non-extendible period of ten To my mind, when you file a motion for leave,
(10) days from notice. The you must state the grounds to give the court a
prosecution may oppose the synopsis or an idea of what you are going to raise
demurrer to evidence within a
similar period from its so that the court will be attracted to grant. The
receipt. reason behind this leave is to put a stop to the old
The order denying the motion practice. The old practice was of granting
for leave of court to file
demurrer to evidence or the demurrer immediately and in most cases the
demurrer itself shall not be demurrer is really without merit. This is why this
reviewable by appeal or by was placed in the Rules of Court so that the court
certiorari before judgment. (n)
will weigh whether ano ba? Pagbigyan ko ba ito
These deadlines were not found before. If o hindi? Otherwise, we would be going back to
you want to file leave, pag-rest, 5 days lang, you the old system.
file a motion for leave. The prosecution may
oppose the leave of within 5 days. After the court And the judge told me, Your arguments are
grants leave, you file the demurrer within 10 days sound, but the trouble is there is nothing in the
lang. The obvious purpose here is not to delay the rules which support you so, well just grant
trial. leave. Wala din. Of course, there was a leave,
there was a demurrer, and I opposed and it was
When the court denies the motion for leave or denied. But ang issue ko, Ive been harping on
the demurrer itself, as a rule, it is not reviewable. that point for so long. You cannot just say leave,
You cannot review it. The remedy is to go to trial you must tell the court what you will raise. Give
and if you are convicted, appeal on the judgment us an idea so that the court will be convinced to
of conviction. But as a general rule, when a grant leave. If the court will deny the leave, you
demurrer is denied, you cannot go on certiorari. file it at your own risk.
Im not saying that this is 100% but there are
some instances when the court, based on equity, Now, the 2000 Rules states, The motion for
allows it. leave of court to file demurrer to evidence shall
specifically state its grounds. Hindi na puwede
Take note that when you file a leave of court yung we intend to file a demurrer, may we ask
to file a demurrer, the accused must specifically for leave without stating the grounds. At least,
state the grounds. sabi ko, I have been correct all along in
advocating this. So when I read this in the new
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 155

rules, I said, Ay salamat! Tama pala ako all before the court renders a decision, the court
along! Once you know the philosophy of the would like to conduct an ocular inspection and
law, hindi ka man mawala ba! You can always re-enactment of the alleged crime in the place
argue from that point. where the crime was committed. Motu propio,
the court ordered the re-enactment. This is an
SEC. 24. Reopening. At any instance of re-opening the trial. This is allowed
time before finality of the
judgment of conviction, the because this is an inherent power of the court, if
judge may, motu proprio or upon it really wants to find out the truth. You cannot
motion, with hearing in either find any provision in the rules regulating that
case, reopen the proceedings to
avoid a miscarriage of justice. kind of remedy. This is allowed without any
The proceedings shall be specific rule except justice and equity.
terminated within thirty (30)
days from the order granting
it. (n) For the first time, reopening of trial in a
criminal case is now found in Section 24 of the
Section 24 is a new provision. The judge may 2000 Rules. But there is something wrong here. In
motu propio or upon motion reopen the reopening of trial, you do it before the case is
proceedings. decided. Dito naman, you do it at any time before
the finality of the judgment of conviction. Anong
Actually, reopening of trial is a remedy which klase ito?! How can this be? There is already a
is recognized but not found in the rules. Even the judgment of conviction and then, you reopen?? I
rules on civil procedure, there are motions for think the correct motion is a new trial.
new trials but you cannot find a rule for the re-
opening of trial. But the SC has always I remember when Galvez was here to lecture
recognized that there is such a remedy. on the Rules on Criminal Procedure. He said that
somebody in the Supreme Court nakialam dito
EXAMPLE: I will rest my case, the trial is eh. The original draft was anytime before judgment
finished and the next step is the decision. But there can be re-opening upon motu propio or motion.
after you rest, you have additional evidence But when the new rules came out, it said at any
discovered for the first time and therefore could time before finality of the judgment of conviction.
not have been presented beforehand. dinagdagan ba! The person who changed it must
have thought the committee had erred but the
Q: What will you do? Will you file a motion change made it even worse. Thats why the
for new trial based on the newly discovered committee wrote a letter to the SC to amend this
evidence? mistake.
A: NO, you cannot wala pang decision!
Motion for new trial based on new evidence is Now, there are some special laws that are
proper only after a decision has been made and related to the subject of trial and they are
the same is not yet final and executory. considered as part and parcel of the criminal
procedure. I am referring to RA 4908, RA 6033,
Q: In the example, wala pang decision eh. RA 6034 and RA 6035. RAs 6033, 6034 and 6035
What is the proper remedy? are also known as the Laurel Laws because the
A: The correct remedy is motion to reopen the author of these laws is Senator Laurel in the 70s.
trial because there is no judgment yet.
Q: On what grounds? COURTS TO SPEEDILY TRY
A: Justice and equity. This is the only ground CRIMINAL CASES WHEREIN
for re-opening because there is no specific THE OFFENDED PARTY IS A
Q: Now can the court on its own, re-open a NO DEFINITE DATE OF RETURN
trial, civil or criminal?
A: YES. This has happened several times. RA 6033 AN ACT REQUIRING COURTS
The case has already been submitted for trial, this TO GIVE PREFERENCE TO
happened to me several years ago. The court said CRIMINAL CASES WHERE THE
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 156

PARTY OR PARTIES INVOLVE liability or damages caused by

his wrongful act or omission to
ARE INDIGENTS be recovered from the accused
by the offended party, if there
RA 6034 AN ACT PROVIDING is any, unless the enforcement
of the civil liability by a
TRANSPORTATION AND separate civil action has been
OTHER ALLOWANCES FOR reserved or waived.
INDIGENT LITIGANTS. In case the judgment is of
acquittal, it shall state
whether the evidence of the
RA 6035 AN ACT REQUIRING prosecution absolutely failed
STENOGRAPHERS TO GIVE to prove the guilt of the
accused or merely failed to
FREE TRANSCRIPT OF NOTES prove his guilt beyond
TO INDIGENT AND LOW reasonable doubt. In either
INCOME LITIGANTS AND case, the judgment shall
determine if the act or
PROVIDING A PENALTY FOR omission from which the civil
THE VIOLATION THEREOF liability might arise did not
exist. (2a)
So that takes care of Rule 119.
There is something wrong in convicting
somebody without even a clear statement of why
Rule 120
he is guilty. According to the SC, why is it that
JUDGMENT the law requires, especially in criminal cases, the
judge should be careful in rendering a judgment?
Why must it be clearly stated why you are guilty
Q: What is the definition of judgment in under Section 1 & 2. Why is it that under Sections
criminal cases? 1 and 2, the judgment must clearly state why you
A: Section 1: are guilty? In the following cases of
SECTION 1. Judgment;
definition and form. Judgment
is the adjudication by the 312 SCRA 623 [1999]
court that the accused is
guilty or not guilty of the HELD: A strict compliance with
offense charged and the
imposition on him of the proper the mandate of the said provision is
penalty and civil liability, if imperative in the writing of every
any. It must be written in the
official language, personally
decision. Otherwise, the rule would
and directly prepared by the simply a tool for speculations, which
judge and signed by him and this Court will not countenance
shall contain clearly and
distinctly a statement of the
specifically in criminal cases involving
facts and the law upon which it the possible deprivation of human
is based. (1a) life.

Q: What does it contain? PEOPLE vs. BUGARIN

A: Section 2: 273 SCRA 384 [1997] J. Mendoza
SEC. 2. Contents of the
judgment. If the judgment is
HELD: The requirement that the
of conviction, it shall state decisions of courts must be in writing
(1) the legal qualification of and that they must set forth clearly
the offense constituted by the
acts committed by the accused and distinctly the facts and the law on
and the aggravating or which they are based serves many
mitigating circumstances which functions. It is intended, among other
attended its commission; (2)
the participation of the things, to inform the parties of the
accused in the offense, whether reason or reasons for the decision so
as principal, accomplice, or that if any of them appeals, he can
accessory after the fact; (3)
the penalty imposed upon the point out to the appellate court the
accused; and (4) the civil findings of facts or the rulings on
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 157

points of law with which he disagrees. party was properly informed, the
More than that, the requirement is an fiscal said [oral motion], In that case
assurance to the parties that, in your honor, we are moving for the
reaching judgment, the judge did so dismissal of the criminal case for lack of
through the processes of legal evidence now upon us wala ang offended
reasoning. It is, thus, a safeguard party eh. The judge dictated in open
against the impetuosity of the judge, court, Alright, the case is dismissed for
preventing him from deciding by ipse failure to prosecute. With that, the
dixit [by instinct]. Vouchsafed neither accused went home happy.
the sword nor the purse by the After the accused left and shortly
Constitution but nonetheless vested thereafter, the offended party arrived
with the sovereign prerogative of with his lawyer. After they learned of
passing judgment on the life, liberty or the dismissal they explained that they
property of his fellowmen, the judge had to travel far, had a flat tire and got
must ultimately depend on the power caught in traffic. The judge found their
of reason for sustained public earlier non-appearance as justified and
confidence in the justness of his ordered the revocation or
decision. The decision of the trial court reconsidered the earlier decision of
in this case disrespects the judicial dismissal, consequently resetting the
function. trial.
The accused learned of the
In other words, among the three branches of succeeding events and protested that
government, the judiciary is the weakest. It has this was a case of double jeopardy. He
no power of the purse or the sword. Purse contends that all the necessary
congress holds the budget. Sword the judiciary elements of double jeopardy are
has no army to enforce decisions unlike the present: valid complaint, valid
executive where the executive is already the information filed in a competent court;
commander-in-chief of the AFP. So how can the had an arraignment; and the case was
judiciary command the respect of the people? dismissed without his express consent.
There is only one way the force of its decisions
that its decisions are well argued and logical. HELD: The order of dismissal was
This is the only way to have the people believe in equivalent to an acquittal but a
the judiciary. If it cannot cope with this, it is an judgment of acquittal under Rule 120
insult, an attack to judges who do not know how must be in writing. The order
to write decisions, because this is how the dismissing the case was not in writing
judiciary earns the respect of the people. but was dictated in open court. It was
Otherwise, baka wala ng maniwala sa korte. That never reduced into writing. What was
is how the SC explained that idea in the case of reduced to writing was the second
Bugarin. order which revoked the first order.
Since it was never in writing, there
One interesting case in relation to Section 2 was no judgment of acquittal.
which dealt with the double jeopardy rule was Therefore, there is no double jeopardy.
the case of However, this order of dismissal
ABAY, SR. vs. GARCIA must be written in the official
162 SCRA 665 language, personally and directly
prepared by the judge and signed by
FACTS: On the day of trial, the him conformably with the provisions
accused was there with his lawyer. of Rule 120, section 2 of the Rules of
The offended party was not in court. Court. In the instant case, it is very
The judge asked the fiscal what action clear that the order was merely
he wanted to proceed with. The fiscal dictated in open court by the trial
said, We will look at the records, whether judge. There is now showing that this
the offended party were properly verbal order of dismissal was ever
informed. Finding that the offended reduced to writing and duly signed by
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him. Thus, it did not yet attain the may order the accused to satisfy civil liability
effect of a judgment of acquittal, so because the cause of action in the civil case is
that it was still within the powers of already proven although the accused is acquitted.
the judge to set it aside and enter It is possible for the accused to be acquitted and
another order, now in writing and yet is found to be civilly liable based on the 85
duly signed by him, reinstating the Rules.
The rule under the 1985 Rules was taken from
This is how the Supreme Court skirted the decided cases such as the case of METROBANK
double jeopardy rule by applying Rule 120, VS. CA (188 SCRA 259). In this case, the accused
Sections 1 and 2. was charged with estafa. After trial, the court
said that there was no estafa. It is only a simple
The 2nd paragraph of Section 2 is new and it loan so there is no crime. Normally, the next
radically changed the language of the previous step is to let the offended party file a civil case to
rule. Section 2, second paragraph: demand payment of the loan. But in the case of
Metrobank, the SC said that it is a double effort.
In case the judgment is of The Supreme Court said, While it is true that
acquittal, it shall state
whether the evidence of the petitioner Metrobank can no longer collect
prosecution absolutely failed private respondent's civil liability on the basis of
to prove the guilt of the the criminal case filed, it could nonetheless collect
accused or merely failed to
prove his guilt beyond the said civil liability prayed for on the basis of
reasonable doubt. In either the non-payment of the loan contracted by
case, the judgment shall respondent spouses from the bank. There appear
determine if the act or
omission from which the civil to be no sound reasons to require a separate civil
liability might arise did not action to still be filed considering that the facts to
exist. (2a) be proved in the civil case have already been
established in the criminal proceedings where the
This is just a repetition of Rule 111, Section 2 accused was acquitted. To require a separate civil
[last paragraph] when the judgment acquits the action simply because the accused was acquitted
accused, the judgment should state whether the would mean needless clogging of court dockets
evidence of the prosecution absolutely failed to and unnecessary duplication of litigation with all
prove the guilt of the accused or merely failed to its attendant loss of time, effort, and money on
prove his guilt beyond reasonable doubt. In the part of all concerned. This was the 1985
either case, the judgment shall determine if the Rules.
act or omission from which the civil liability
might arise does not exist. Because generally if Q: Now, is that rule still valid under the 2000
you are acquitted on reasonable doubt, it will not Rules?
bar the filing of a separate civil action. But if the A: The new rule is silent. There is nothing
fact from which the civil liability might arise does here that says that the accused may be acquitted
not exist, then the acquittal is already a bar to a but found civilly liable unlike the 1985 Rules. It
future civil liability. only says that in case of acquittal, the judgment
should state whether the acquittal is based merely
Compare this with the language of the 1985 on reasonable doubt or the prosecution
Rules, Rule 120, Section 2, last paragraph: absolutely failed to prove the guilt of the accused.
In either case, the judgment shall determine if the
In case of acquittal, unless
there is a clear showing that act or omission from which the civil liability
the act from which the civil might arise does not exist. But as it is worded
liability might arise did not now, it would seem, you should file a separate
exist, the judgment shall make
a finding on the civil civil case. And the practice of holding the
liability of the accused in accused liable civilly in a criminal case where he
favor of the offended party. is acquitted, seems to be no longer possible.

According to the 1985 Rules, if the accused is Under the new rules, just acquit let him file
acquitted based on reasonable doubt, the court a separate civil case. The old rule is simplier: No
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 159

need! Dun na mismo sa criminal case acquit happen now? Well, we will have to ask this
him but make him civilly liable. But now, the question
language is different. It is a radical departure
from the 1985 rules. Q: Is the offense proven included in the offense
charged or does the offense proven includes the
offense charged?
SEC. 3. Judgment for two or A: If YES, then apply Section 4. You convict the
more offenses. When two or
more offenses are charged in a accused of the offense proved which is included
single complaint or information in the offense charged, or of the offense charged
but the accused fails to object which is included in the offense proved.
to it before trial, the court
may convict him of as many
offenses as are charged and Q: What if kung malayong-malayo? The crime
proved, and impose on him the proved is different from the crime charged like
penalty for each offense,
setting out separately the for example: The crime charged is homicide and
findings of fact and law in what is proved is robbery. What will happen?
each offense. (3a) Will you apply Section 14 of Rule 110 on
substitution of information?
Lets go back to Rule 110 on duplicitous A: No, you will not apply Rule 110 Section 14
complaint or information. Under Section 3 of Rule because we are already through with that stage.
110, this is defined as a complaint or information We are now in the trial stage where the crime
which charges more than one offense. This is not proved is different from the crime charged.
allowed. And the remedy here is you file a Therefore, the proper remedy here is Section 19 of
Motion to Quash under Section 3 [f], Rule 117. Rule 119, last paragraph:

But the defect is waivable because if you do RULE 119, SEC. 19. When
not file a Motion to Quash, the trial can proceed mistake has been made in
charging the proper offense.
and if you are found guilty for committing 2 or When it becomes manifest at any
more crimes, then there will be 2 or more time before judgment that a
penalties. Under Section 3, the court may convict mistake has been made in
charging the proper offense and
the accused of as many offenses as are charged the accused cannot be convicted
and proved and impose on him the penalty for of the offense charged or any
each offense if the accused fails to object the other offense necessarily
included therein, the accused
duplicitous complaint before the trial. shall not be discharged if
there appears good cause to
detain him. In such case, the
SEC. 4. Judgment in case of court shall commit the accused
variance between allegation and to answer for the proper
proof. When there is variance offense and dismiss the
between the offense charged in original case upon the filing
the complaint or information of the proper information.
and that proved, and the (11a)
offense as charged is included
in or necessarily includes the [Editor: Try to correlate this with Section 14, Rule
offense proved, the accused
110. They are similar. But for clearer understanding,
shall be convicted of the
offense proved which is please go back to Section 19, Rule 119 in the case of
included in the offense GALVEZ on the distinctions between these two
charged, or of the offense provisions. Thanks!]
charged which is included in
the offense proved. (4a) SEC. 5. When an offense
includes or is included in
another. An offense charged
We will go to this basic principle: necessarily includes the
offense proved when some of the
essential elements or
Mr. Calizo is charged in an information of ingredients of the former, as
committing one crime. However, during the trial, alleged in the complaint or
information, constitute the
what was proven is another crime. What will latter. And an offense charged
is necessarily included in the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 160

offense proved, when the ISSUE: Can a person accused of

essential ingredients of the
former constitute or form part murder as a principal may be
of those constituting the convicted as an accessory?
latter. (5a)
HELD: YES, a person charged with
Q: When does an offense include another, or an offense as principal maybe
when is it included in the other? convicted as an accessory because the
A: Section 5, Rule 120. greater responsibility includes the
lesser responsibility. Accessory is a
For example, Mr. Tiamzon is charged with lesser degree of participation.
MURDER and what is established is HOMICIDE. This is not a case of a variance
Homicide is included in the crime of murder. The between the offense charged and the
elements are identical. The only difference is that offense proved. Here, the accused was
there are no qualifying circumstances in charged with murder and what was
homicide. Or, THEFT is included in ROBBERY. established by evidence was also
The only missing element in theft is violence or murder. There is here no mistake in
intimidation. Or, LESS PHYSICAL INJURY is charging the proper offense. The
included in SERIOUS PHYSICAL INJURY. variance is in the participation of the
accused in the commission of the
In that case, the case will not be dismissed. Just crime which is not covered by any
convict the accused of the crime proven which is specific provision. What is covered by
included in the crime charged. Such that if you the rules is when there is a mistake in
are charged with murder, you can be convicted charging the proper offense, or when
for homicide. there is a total mistake because the
crime was never committed.
Q: Suppose the accused is charged with
homicide and what was proven is murder. So it is Q: What is the difference between
the other way around. What is the correct malversation and technical malversation?
procedure? A: Although both crimes are committed by
A: Convict him for the crime charged. Do not public officers, malversation is punishable under
dismiss the case. Although the crime proved Article 217 of the RPC, whereas, technical
(murder) includes that which is charged malversation is not referred as such in the RPC.
(homicide), a person cannot be convicted of a Technical malversation is denominated as Illegal
more serious offense than that charged. The Use of Public Funds under Article 220 of the RPC.
accused can only be convicted for homicide and
the qualifying circumstances of murder should be EXAMPLE: Technical malversation/Illegal
treated only as an ordinary aggravating Use of Public Fund is when a public officer uses
circumstances. The same is true with theft and funds appropriated for a certain public purpose
robbery. [c.f. discussions on Section 8, Rule 110] (lets say, for the construction of a school
building) for another public purpose (like
We will now go to some important cases. widening or cementing of roads.)


178 SCRA 626 197 SCRA 173

FACTS: Mr. Acelar is accused of FACTS: A public officer was

murder as principal by direct charged with technical malversation of
participation. After trial, it was public funds or property. The trial
established that Mr. Acelar is only an court found that the crime committed
accessory. is not technical malversation. It is
more of malversation.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 161

ISSUE: May a person, charged correct information, the SC already ruled that you
with technical malversation under are innocent? According to him, the correct
Article 220 of the RPC, be found guilty procedure is not to dismiss both cases but to
of malversation under Article 217? acquit the accused of the original complaint of
technical malversation and require the filing of a
HELD: NO. He cannot be convicted new information charging the proper offense
of malversation because there is no (malversation). So this is one of the rare cases
similarity between these two crimes. where the SC decided not to be very technical
In malversation of public funds, the and went straight to the decision. Siguro the SC
offender misappropriates public funds would like to save time.
for his own personal use or allows any
other person to take such public funds Q: If a person is charged with rape, can he be
for the latter's personal use. In convicted of qualified seduction? Is qualified
technical malversation, the public seduction included in rape?
officer applies public funds under his A: It seems that the elements are different. In
administration not for his or anothers rape, there is no consent in the sexual intercourse.
personal use, but to a public use other But in seduction, there is consent although there
than that for which the fund was is abuse of authority, relationship or there is
appropriated by law or ordinance. deceit. But in the 1993 case of
Technical malversation is, PEOPLE vs. SUBING-SUBING
therefore, not included in nor does it 228 SCRA 168
necessarily include the crime of
malversation of public funds charged HELD: A person charged with
in the information. rape can be convicted of qualified
The Sandiganbayan therefore seduction if the latter though not
erred in not ordering the filing of the alleged in the complaint, appears in
proper information against the the victims affidavit.
petitioner, and in convicting him of
technical malversation in the original It seems that there is something wrong here;
case for malversation of public funds. the complaint says rape, but the victims affidavit
Ordinarily, the courts recourse would says qualified seduction. However the SC says it
be to acquit the petitioner of the crime is fine. It is tantamount to the same thing: not
of illegal use of public funds without found in the complaint but found in the victims
prejudice, but subject to the laws on affidavit. This is another queer decision of the SC.
prescription, to the filing of a new
information for such offense. PECHO vs. SANDIGANBAYAN
Considering however that all the 238 SCRA 116
evidence given during the trial in the
malversation case is the same evidence FACTS: There was somebody who
that will be presented and evaluated imported highly taxable items.
to determine his guilt or innocence in Obviously, he had some connections
the technical malversation case in the with the Bureau of Customs. He
event that one is filed and in order to declared his items different form
spare the petitioner from the rigors which he brought, so the taxes are less.
and harshness compounded by The obvious intention it to cheat the
another trial, not to mention the government of the correct amount of
unnecessary burden on our taxes. He prepared the import entry
overloaded judicial system, the Court declaring false information or entries.
is acquitted the accused of the crime of However, the Collector of Customs
illegal use of public funds. ordered a spot inspection. So the
attempt did not succeed.
But Justice Feliciano dissented, Why question The importer, together with the
the procedure used for violation the law? Anong Customs people were charged with
klaseng decision ito? Even before filing the attempted violation of the Anti-Graft
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Act. So, there was an attempt to cause Nonetheless, the designation of

undue injury to the government by the crime in the information as
depriving it of its proper taxes. highway robbery with homicide
(Violation of PD 532) does not
ISSUE: Can a person charged with preclude conviction of the appellants
a crime punishable under a special law of the crime of robbery with homicide
be found guilty instead of a felony in (Article 294 [1] of the RPC). In the
the RPC? Can a crime under the RPC interpretation of an information, what
be considered as included in the crime controls is not the designation but the
under a special law? description of the offense charged. The
crime of robbery with homicide is
HELD: There is no such thing as clearly alleged in the information
attempted violation of the Anti-Graft notwithstanding its erroneous caption.
Act. The attempted, frustrated and It is an offense necessarily included in
consummated stages only apply to that with which they were charged.
felonies in the RPC. Under crimes
punishable by a special law, you only
punish the consummated stage. You SEC. 6. Promulgation of
judgment. The judgment is
do not punish the attempted and promulgated by reading it in
frustrated stages unless the special law the presence of the accused and
says so. Since there was no injury any judge of the court in which
it was rendered. However, if
caused to the government due to the the conviction is for a light
time discovery, there was no violation offense, the judgment may be
of the Anti-Graft Act. pronounced in the presence of
his counsel or representative.
However, they made false entries, When the judge is absent or
thereby committing falsification. outside the province or city,
Therefore, they can be convicted of the judgment may be promulgated
by the clerk of court.
falsification of public or commercial If the accused is confined