MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Rule 110
Q: Is there a difference between commencement of criminal action and
institution of criminal action?
A: Yes. When you say “commencement”, generally it is already in the
court once it is filed in court. But “institution” is earlier. When you file a
complaint with the fiscal’s office, it is already an institution.
Filing of the complaint interrupt the running of the prescriptive period.
Q: Can the offended party hire his own lawyer to prosecute?
A: YES, the offended party can hire his own lawyer who is known as the
private prosecutor. The personality of the private prosecutor is based on the
provision in the RPC that every person criminally liable is also civilly liable.
It is because of this civil liability that the offended party has an interest in the
criminal case.
Even if the public prosecutor may turn over the active conduct of the trial
to the private prosecutor, he must be present during the proceedings because
he is, by law, duty-bound to take charge of the prosecution of the case until
its termination.
If the public prosecutor or fiscal and the private prosecutor do not agree
on how to prosecute, the fiscal will prevail because the private prosecutor is
under the direct control of the fiscal.
In ADULTERY or CONCUBINAGE, the offended party is only the
husband or the wife. The parents have nothing to do with the adultery or
concubinage. In adultery, it is not allowed that the husband files a complaint
against his wife without including her paramour. Nor is it allowed that the
husband files a case for adultery against his wife’s lover without including
his wife. The law provides, “xxx the offended party cannot initiate criminal
prosecution without including the guilty parties, if both are alive, xxx”. The
same rule applies in concubinage.
In either case, consent or pardon by the offended party is a bar to criminal
prosecution. Consent indicates allowance.
Q: What happens when an information for adultery or concubinage is
filed without a complaint? Is it a jurisdictional effect?
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A: According to some rulings, it is a jurisdictional defect. The SC held
that compliance in Article 344 and counterpart (as well as other crimes
against chastity) is jurisdictional, and not merely a formal, requirement.
While in point of strict law the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn written
complaint is just as jurisdictional mandate since it is that complaint which
starts the prosecutory proceeding and without which the court cannot exercise
its jurisdiction to try the case. (People vs. Mandea, 60 Phil. 372; People vs.
Surbano, 37 SCRA 565; People vs. Babasa, 97 SCRA 672; Pilapil vs. Ibay-
Somera, 174 SCRA 653)
But there is a SECOND VIEW: You can question the filing but it is not
jurisdictional. It is a condition precedent but not jurisdictional because if
you say jurisdiction, they are vested by the judiciary law. There is nothing
in the judiciary law which can speak about complaint filed in court by the
offended party. (People vs. Estrebella (1986); People vs. Saniaga (1988);
People vs. Bugtong (1989); People vs. Tarul (1989); People vs. Cabodac
(1992); People vs. Leoparde (1992);
Q: One of the requirements under Section 7 is that the name of the
accused must be stated in the information. Eh kung nagkamali ka? Is that
fatal? What is the effect of an erroneous name given to the accused in the
complaint or information?
A: The defect is not fatal. The error will not produce any adverse effect
because what is important is the identity of the person of the accused, not his
name . (People vs. Ramos, 85 Phil. 683) Kung nagkamali, eh di palitan!
[problema ba yun? Ha!] This reminds me of the Fortun brothers – the Delia
Rajas incident during the impeachment trial.
Q: Let’s go to Section 9. Suppose the offense says, “criminal case for
murder” but in the body of the information there is no allegation of a
qualifying circumstance. What does the fiscal charge, Murder or Homicide?
A: HOMICIDE. The SC held that the designation of the offense is not an
essential element of a complaint or information, because, at most that is a
mere conclusion of the fiscal. What is controlling is the recital of facts
appearing in the body of the complaint or information. (People vs. Agito,
April 28, 1958; People vs. Cosare, 95 Phil. 656)
But there are some EXCEPTIONS like what happened in the case of
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
U.S. vs. TICZON
25 Phil. 67
FACTS: A complaint was filed by the woman stating that
“while the offended party was inside her house at night and all
the doors were locked and all the windows were closed, the
accused surreptitiously entered the house and approached the
offended party who was asleep, raised her skirt and at that very
moment the woman woke up and resisted.” [This can be an
attempted rape but the element of the crime was not fully
accomplished because of an act or accident other than her own
resistance.] But sabi ng caption, “for trespass to dwelling” –
pwede man din.
HELD: Sabi mo, “trespass”. OK, eh di trespass! So the
caption prevails. When the facts appearing in the complaint or
information are so stated that they are capable of two or more
interpretations, then the designation of the offense in the caption
controls.
Take note that under the new rape law, RA 7659, there are some
circumstances which if present call for the mandatory death penalty. In the
case of
PEOPLE vs. MANHUYOD, JR.
May 20, 1998
HELD: When you charge somebody with a heinous crime
such as rape, the information must make reference to the new
law. If not, it will only be translated as an ordinary aggravating
circumstance because the information was charged after the
effectivity of the heinous crime law.
PEOPLE vs. QUITLONG
292 SCRA 260
HELD: “Unlike the omission of an ordinary recital of fact
which, if not excepted from or objected to during trial, may be
corrected or supplied by competent proof, an allegation,
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however, of conspiracy, or one that would impute criminal
liability to an accused for the act of another or others, is
indispensable in order to hold such person, regardless of the
nature and extent of his own participation, equally guilty with
the other or others in the commission of the crime. Verily, an
accused must know from the information whether he faces a
criminal responsibility not only for his acts but also for the acts
of his co-accused as well.”
Meaning, if you are charging me for what my companion
did, you better be clear that there is conspiracy para ma-apply
yung doctrine na ‘the act of one is the act of all.’
“The opinion of the trial court to the effect that conspiracy
may be inferred from the allegation of abuse of superior
strength and with the aid of armed men is difficult to accept. the
information must state that the accused have confederated to
commit the crime or that there has been a community of design,
a unity of purpose or an agreement to commit the felony among
the accused. Conspiracy must be alleged, not just inferred, in
the information on which basis an accused can aptly enter his
plea, a matter that is not to be confused with or likened to the
adequacy of evidence that may be required to prove it.”
You can prove conspiracy by direct evidence. But kahirap niyan uy unless
you were there listening. In criminal law, when two or more persons act
together in unison to attain the same criminal objective, then conspiracy can
be inferred. Meaning, you can use that as evidence to convict a person but
for purposes of filing the case, you must expressly allege it.
Q: Must excepting clauses be alleged in a complaint or information?
A: It DEPENDS. If the excepting clause forms part of the definition of
the offense, it must be alleged; but if it is a matter of defense, it need not be
alleged in a complaint or information. (U.S. vs. Chan Toco, 12 Phil. 262)
Q: When you say place, do you have to be very specific as to the place
where the crime was committed? You must describe the kalsada, the street?
A: NO. As a matter of fact, if you look at the information, it just says,
you committed the crime in Davao City without even stating what barangay
or barrio. So, the place of the commission of the crime maybe stated
generally. What is only important is it is within the territorial jurisdiction
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EXCEPTION when the place of the commission of the crime constitutes
an essential element of the crime charged. Yan! You must be specific.
Examples:
EXAMPLE: TRESPASS TO DWELLING. You must specify that the
crime was committed by entering into the dwelling of somebody. You cannot
just say that he committed it in Davao City. You must say na pumasok siya
sa bahay na ito. Or
EXAMPLE. ROBBERY IN AN INHABITED HOUSE, PUBLIC
BUILDING OR EDIFICE DEVOTED TO WORSHIP. You must state the
particular house. Kailangan specific ka diyan.
Q: How about yung date? Is it necessary that it should be very accurate?
A: NO. What is important is that the information alleges that the crime
was committed “on or about” a certain date.
Q: The information said that Judy committed homicide on January 20.
During the trial, pinalabas na December 20 pala – one month 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 time set out in the indictment and that established by the
evidence during the trial has been held not to constitute an error so serious as
to warrant reversal of a conviction solely on that score alone. (Rocaberte vs.
People, 193 SCRA 192)
But when you say December 2000 and then the crime pala was
committed in 1995, ay sobra na yan! That is too much. Five (5) years is no
longer covered by “on or about.” That is already violative of Section 11. A
variance of several years, or the statement of the time of the commission of
the offense which is so general as to span a number of years has been held to
be fatally defective. (Rocaberte vs. People, 193 SCRA 192)
Q: And what is the remedy in that case?
A: The remedy against an indictment that fails to allege the time of the
commission of the offense with sufficient definiteness is a motion for a bill
of particulars (Rocaberte vs. People, 193 SCRA 192). Do not dismiss the
information. That was commented by the SC in the recent case of People vs.
Garcia, November 6, 1997 (281 SCRA 463).
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EXAMPLE: VIOLATION OF ELECTION CODE, drinking liquor
during election day. You 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. If you drink liquor after, wala mang crime ba!
EXAMPLE. INFANTICIDE. It is committed by killing a child less than
3 days old or less than 72 hours. If the infant is exactly 3 days old, it is no
longer infanticide. So the information must be very specific that the child was
born on this day, on this time and the killing was done on this day, on this
time.
Let’s go to the next rule – name of the offended party. You must allege
also who is the victim. We are talking here about the victim – the private
offended party.
Q: Why is it that the name of the offended party must be alleged in the
information?
A: First, the general rule is that, aside from the People of the Philippines,
there is a private victim. Second, so that we will know to whom the court will
award the civil liability.
Q: Is there a possibility by which the name of the offended party is not
mentioned in the information but the same is still valid?
A: YES. Paragraph [a], in a crime against property. If you do not know
who is the victim of theft or robbery, it is enough that you describe the
property in the information.
HELD: Even if the State is not mentioned, the information
is NOT defective. Why? You look at the caption of the case –
“People of the Philippines”. That is actually the offended party.
PEOPLE vs. UBA
99 Phil 134
FACTS: Vidz, on a certain date, was alleged to have uttered
publicly slanderous words against Jessamyn. So Jessamyn is the
victim of the slander. Alam niyo during the trial, it turned out
that the victim pala was Lyle, not Jessamyn. But everything is
the same – the date and place of the commission, the defamatory
words – pare-pareho! Only, there was an erroneous designation
of the offended party.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
ISSUE: Can the court convict Vidz for the crime of
slander?
HELD: NO. Although the words are the same, the slander
against Lyle is a separate offense. Meaning, you are charging a
different offense from the crime proven. You cannot convict a
person of a crime not properly charged.
“A mistake in putting in the information the name of the
offended party is a material matter which necessarily affects the
identification of the act charged. The case should be dismissed
for variance between the allegations of the information and the
proof.”
However, there were exceptions in the past like where the accused, who
is not a doctor, was charged of illegal practice of medicine. The information
stated that the offended party is Paul. Pag-trial, hindi pala si Paul. Si Inay pala
dapat ang victim. The SC said the accused can be convicted. Why? The crime
is illegal practice of medicine regardless of whether the victim is Paul or Inay.
(Diel vs. Martinez, 76 Phil. 273) Yan! It is different from the case of Uba.
Q: How do you determine whether the amendment is as to form or
substance?
A: An amendment which merely states with additional precision
something which is already contained in the original information, and which,
therefore, adds nothing essential for conviction for the crime charged is an
amendment to form that can be made at anytime. (People vs. Montenegro,
159 SCRA 236)
Q: The amendment is substantial if the amendment will prejudice the
rights of the accused. How do you determine whether the rights of the accused
are prejudiced?
A: The test as to when the rights of an accused are prejudiced by the
amendment of a complaint or information is when a defense under the
complaint or information, as it originally stood, would no longer be available
after the amendment is made, and when any evidence the accused might have,
would be inapplicable to the complaint or information as amended. (People
vs. Montenegro, 159 SCRA 236) Meaning, evidence which could help you
in the first place will no longer help you after the amendment – that is
prejudicial.
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HELD: It is FORMAL because the allegation of superior
strength is already there. In other words, from the very start, it
was really meant to be murder. Mabuti sana kung dinagdag lang
yung superior strength. It is already there all along.
Again, when you amend a complaint or information to downgrade the
nature of the offense or when the amendment is to exclude an accused from
the complaint or information, of course, it can only be done by motion of the
prosecutor, notice to the offended party, and decree of court. That is a new
provision.
The law says, the criminal case will be tried, where?
1. where the offense was committed; or
2. where any of the essential ingredients occurred.
Rule 111
The main principle is: when a criminal action is filed, the civil action of
the recovery of the civil liability arising from the offense charged is deemed
instituted with the criminal action.
Article 100 of the RPC, “Every person criminally liable is also civilly
liable.”
Q: When is a civil action arising from a crime NOT deemed instituted
with the criminal action?
A: The civil action is NOT deemed instituted with the criminal action:
1. when the offended party has waived the civil aspect of the case;
2. when the offended party has reserved his right to file a separate
civil action; or
3. when the civil action was filed or instituted ahead of the
criminal action.
4. when the crime is one to which no civil liability attaches.
(People vs. Maceda, 73 Phil. 679)
5. when the civil action was filed in court before the presentation
of the evidence for the prosecution in the criminal action of
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which the judge presiding on the criminal cases was duly
informed. (Yakult Phils. vs. CA, 190 SCRA 357);
According to the second paragraph, the reservation must be made before
the prosecution starts presenting its evidence and under circumstances
affording the offended party reasonable opportunity. Before the trial,
kailangan mag-reserve na siya. Otherwise the court will consider the civil
aspect deemed instituted.
HELD: NO. However, there is no question that after filing
the civil case he told the court that he already filed a separate
civil action and that is even a better reservation. In effect, there
was an automatic reservation although normally, reservation is
done before the filing of the criminal case. Ito naman, filing
before he informed the court.
Q: Has the offended party the right to claim and prove damages in the
criminal action where the complaint or information is silent as to such claim?
A: Every person criminally liable is also civilly liable. Therefore, even if
the complaint or information is silent as to damages, the offended party has
the right to claim and prove them in the criminal case, unless a waiver or a
reservation of the civil action is made. (People vs. Rodriguez, July 29, 1959;
Roa vs. dela Cruz, Feb. 13, 1960)
So it is possible for the information to recite the claim for civil liability
or hindi na kailangan. The only difference is: if the information mentions the
claim of the civil liability, the offended party is required to pay the docket fee
provided the docket fee is only for any claims for moral, exemplary and
nominal damages. There is no docket fee for actual damages.
Q: Suppose there was no mention of any claim for moral or exemplary
damages, can he still prove them during the trial? YES. But he did not pay
docket fee?
A: Never mind, once it is awarded, there is now a lien in the judgment
for the payment of the docket fee.
In criminal cases, even if there is no mention of damages in the
information, you can still prove and claim them as long as there is no waiver
or reservation.
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So in criminal cases, if the claim for moral or exemplary damages is
mentioned in the information, you must pay the docket fee upon filing of
the information. But whether alleged in the information or not, you can
claim for actual damages and there is no docket fee for actual damages
except in cases under BP 22.
Suppose the offended party made a reservation to institute a civil action
and a criminal case is filed, he cannot file the civil action – that’s the rule. He
must wait for the outcome of the criminal case. The criminal case enjoys
priority.
anyway if there is an acquittal in the criminal case, you can still recover
in the civil case because it is only a preponderance of evidence, or the accused
may be acquitted by reason of an exempting circumstance and yet it does not
exempt him from civil liability in another civil action.
Q: What happens if na-una na-file yung civil action?
A: According to Section 2, from the moment the criminal case is filed,
the trial of the civil case is suspended to wait for the outcome of the criminal
case.
Q: Is this prejudicial to the offended party?
A: There is a way out according to Section 2. The first thing for him to
do is to file a petition to consolidate the trial of the criminal and civil case for
them to be tried together and the evidence already presented in the civil case
is deemed automatically reproduced in the criminal case. This is what you
call the consolidation of the civil and criminal action under Section 2.
Q: What are the instances when the offended party is not allowed to make
a reservation therefore requires a mandatory consolidation?
A: The following are the instances:
1. Violations of BP 22. (Paragraph b, Section 1, Rule 111);
2. Libel – under Article 360, RPC;
3. Mandatory consolidation under the Sandiganbayan law. For
example, a criminal case is supposed to be tried by the SB and
then you file a civil case before the ordinary courts. What will
happen now to the civil case? The law says there must be a
mandatory consolidation of both cases in the SB.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
The running of the prescriptive period shall be suspended.
When the civil case is filed ahead, the filing of the criminal case will
suspend the civil unless there is a petition to consolidate in which case the
evidence presented in the civil case is automatically considered reproduced
in the criminal case.
there is a common question of fact and law. They can be
consolidated but for purposes of decision, the court will now
apply two (2) different criteria: Proof beyond reasonable doubt
in the criminal case and preponderance of evidence in the civil
case. So there is no incompatibility.
HELD: NO. They cannot be consolidated under Rule 111
because what can be consolidated is a criminal case together
with a civil case for damages from the crime committed. In
other words, damages “ex delicto.” But here, the criminal case
was filed against the officers of the corporation for damages and
a civil case for specific performance was also filed against the
same officers. That civil case arose from a contract, i.e. “ex
contractu.” [So if the civil case arose from a contract, it cannot
be consolidated with the criminal case under Rule 111.]
But because it cannot be denied that it would be better if
we try them together because we are talking of the same
incident – failure to deliver the title – why not consolidate the
two cases under Rule 31, citing the case of Caños vs. Peralta.
In that case, the only ground was there was a common question
of fact and law so they should be consolidated under Rule 31
and NOT Rule 111.
If the accused is acquitted, it will not bar the offended party from filing
a civil action because the extinction of the penal action does not carry with it
the extinction of the civil action because for all you know in the civil case the
accused may be found liable.
Q: However, if I file an action based on quasi-delict, can it prosper?
A: YES, because it is now established that the action based on delict is
extinguished but not on quasi-delict, a contract, or other sources of obligation.
This is the ruling in the case of Bayotas in criminal law – that, for example,
once the accused dies, the civil liability arising from crime is already
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extinguished but you can still file a case against the estate of the deceased
accused provided you can find another source of the obligation. This ruling
was emphasized in the 1998 case of
SALAO vs. COURT OF APPEALS
284 SCRA 493, January 22, 1998
HELD: The civil liability referred to in this Rule is the civil
liability arising from crime (ex delicto). It is not the civil
liability for quasi-delict which is allowed to be brought
“separately and independently” of the criminal action by Art.
33 of the Civil Code. The civil liability based on such cause of
action is not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or has not
been committed by the accused. Indeed, because the offended
party does not intervene in the criminal prosecution, it is
entirely possible that all the witnesses presented in the civil
action may not have been presented by the public prosecutor in
the criminal action with the result that the accused in the
criminal case may be acquitted.
However, if this was quasi-delict, you can file a direct action against he
employer because in quasi-delict, the liability of the employer is primary,
not subsidiary. The SC treated the case as an action for quasi-delict against
the employer but that is unfair for the employer because he never
participated in the trial of the civil case.
Q: Which takes precedence when there is reservation, the criminal or the
civil action?
A: The criminal action takes precedence. The filing of the criminal
suspends the filing of the civil action. If the civil action is filed, the civil
action is deemed suspended unless there would be consolidation.
Now, the rule about the filing of the criminal action will suspend the
filing of the civil action, and the rule about the subsequent filing of the
criminal action will suspend the trial of the civil case, however, DOES NOT
apply if the civil action is classified as an independent civil action under
Section 3. This is another important provision.
Q: What are the independent civil actions under the law?
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
A: They are those covered by Articles 32, 33, 34, and 2176 of the New
Civil Code.
the criminal action and the civil action can be filed simultaneously and the
trial of the two cases can go on separately and independently of the other
without regard to the latter.
The next question is: Suppose I will file an independent civil action, do
I have to make a reservation? The civil action specified is an independent
one. Take note that under Section 1, when you file a criminal case without
making a reservation, the civil action is already deemed instituted unless you
make a reservation.
NOW, you will notice in Section 3 of the new rules, that phrase “which
has been reserved” is deleted. So based on the language of the new rules,
babalik na naman tayo sa FLORIDO and MARABE ruling, that an
independent civil action NEED NOT BE RESERVED. Therefore, the ruling
in the MANIAGO and SAN ILDEFONSO cases is deemed abandoned by the
SC.
“A final judgment rendered in a civil action absolving the defendant from
civil liability is not a bar to a criminal action against the defendant.”
The concept of prejudicial question is the exact opposite of Section 2
because in Section 2, unless independent civil action, the filing of the criminal
action will cause the suspension of the civil action. Ito naman, baliktad – the
filing of the civil case will suspend the criminal case – that is, if there is a
prejudicial question involved in the civil case.
Q: What will happen to the criminal case filed in the court?
A: It will be suspended. The accused will have to file a motion for the
suspension of the proceeding.
Rule 112
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.
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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.
An information cannot be dismissed because there was no preliminary
investigation. The procedure is for the court to suspend the proceedings and
refer the matter back to the proper officer for preliminary investigation
Q: Who has the discretion whether to prosecute or not to prosecute?
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 the authority to file or the authority
to dismiss.
Q: Can the discretion of a public prosecutor be controlled? Can you file
a petition for mandamus to compel a public prosecutor to file a case?
A: General Rule: The public prosecutor cannot be compelled by
mandamus to prosecute a case because it is discretionary eh! Maybe you can
prove grave abuse of discretion. Maybe the probable cause is very, very clear
or obvious, then ayaw pa nyang i-file, ayan na!
Q: What are the remedies of the offended party if a fiscal refuses to file
a case even when there is a sufficient evidence in which action may be taken?
A: There are three (3) possible remedies:
1. He may take up the matter with the Secretary of the
Justice who may then take such measures as may be
necessary in the interest of justice; or to his superior
officer, the Regional State Prosecutor;
2. He may also file with the proper authorities or court
criminal or administrative charges against the fiscal.
That is what you call prevericacion in the Revised
Penal Code;
3. He may file a civil action for damages under Article
27, New Civil Code.
the prosecution, as an exception, may be compelled by mandamus if he
abuses his discretion and refuses to include a person as a co-accused against
whom there appears to be at least a prima facie evidence. That is grave
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
abuse of discretion. However, this extraordinary writ is available only if the
petition shows that he has first exhausted all remedies in the ordinary course
of law such as a motion filed with the trial court for the indictment of the
person or persons excluded by the prosecutor.
SANCHEZ vs. DEMETRIOU
November 9, 1993
HELD: “The decision of the prosecutor may be reversed or
modified by the Secretary of Justice or in special cases by the
President of the Philippines. But even this Court cannot order
the prosecution of a person against whom the prosecutor does
not find sufficient evidence to support at least a prima facie
case. The courts try and absolve or convict the accused but as a
rule have no part in the initial decision to prosecute him. “
“The possible exception is where there is an unmistakable
showing of a grave abuse of discretion that will justify judicial
intrusion into the precincts of the executive. But in such a case
the proper remedy to call for such exception is a petition for
mandamus, not certiorari or prohibition.”
This being the case, we hold that an amendment of the
original information will suffice and, consequent thereto, the
filing of the amended information for murder is proper.”
HELD: Formal. “An objective appraisal of the amended
information for murder filed against herein petitioner will
readily show that the nature of the offense originally charged
was not actually changed. Instead, an additional allegation, that
is, the supervening fact of the death of the victim was merely
supplied to aid the trial court in determining the proper penalty
for the crime [So it is still murder.]. That the accused committed
a felonious act with intent to kill the victim continues to be the
prosecution's theory. There is no question that whatever defense
herein petitioner may adduce under the original information for
frustrated murder equally applies to the amended information
for murder.”
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ISSUE #3: Is there a need of a preliminary investigation on
the new charge?
HELD: No need because you have not changed the crime. If you
change the crime or when there is substitution, kailangan ng
preliminary investigation. Since it is only a formal amendment,
preliminary investigation is unnecessary.
An example of “Other officers as may be authorized by law to
conduct preliminary investigation” is the Ombudsman. In the case
of UY VS. SANDIGANBAYAN (312 SCRA 77 [August 9, 1999]),
the Ombudsman and his deputies are only authorized to conduct
preliminary investigation of public officers in cases which are
falling within the original jurisdiction of the Sandiganbayan (SB).
Q: What is the procedure for Preliminary Investigation?
A: You read Section 3 step by step. Actually it’s a battle of affidavits eh.
It is the same as the old rules. Anyway I’ll just mention the changes no:
1. In 2nd paragraph of [b] “The respondent shall have the right to
examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense.”
2. paragraph [c]. What is new here is the last sentence – “The
respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.” So you can file your counter-
affidavit. Do not file a motion to dismiss;
3. “[d] If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day
period, the investigating office shall resolve the complaint
based on the evidence presented by the complainant.”
paragraph [e]. What is new is the 2nd paragraph, “the hearing shall
be held within 10 days…” Actually here, tapos na ang affi-
affidavits. But if you want to clarify something, you can call the
witnesses for clarificatory questioning, pero he has a deadline to do
it – 10 days.
Tatad vs Sandiganbayan
information filed must be dismissed for violation of the
right for speedy trial.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete
absence of a preliminary investigation does not warrant
dismissal of the information. True — but the absence of a
preliminary investigation can be corrected by giving the
accused such investigation. But an undue delay in the conduct
of a preliminary investigation can not be corrected, for until
now, man has not yet invented a device for setting back time.”
Santiago vs Garchitorena
there indeed was an unexplained inaction on the part of the public
prosecutors inspite of the simplicity of the legal and factual issues
involved therein. In the case at bench, there was a continuum of the
investigatory process but it got snarled because of the complexity
of the issues involved.”
HELD: “In the application of the constitutional guaranty of
the right to speedy disposition of cases, particular regard must
also be taken of the facts and circumstances peculiar to each
case. It is palpably clear that the application of the Tatad
doctrine should not be made to rely solely on the length of time
that has passed but equal concern should likewise be accorded
to the factual ambiance and considerations. It can easily be
deduced from a complete reading of the adjudicatory discourse
in Tatad that the three-year delay was specifically considered
vis-a-vis all the facts and circumstances which obtained
therein.”
So you just don’t consider the time element. You must also
consider the facts.
Servantes vs Sandiganbayan
HELD: “We find Servantes’ contention meritorious. He
was deprived of his right to speedy disposition of the case, a
right guaranteed by the Constitution. We cannot accept special
prosecutor’s ratiocination. It is the duty of the prosecutor to
speedily resolve the complaint as mandated by the Constitution
9
regardless of whether Servantes did not object to the delay
although the delay was with his acquiescence provided it was
not due to causes directly attributable to him.” So the mere fact
that he was not complaining is not a factor. What is the factor is
when the delay was caused by him. Yaan!
Q: Going back to paragraph (b) when the respondent is subpoenaed, he
is supposed to file his counter-affidavit. Paano kung di siya ma-subpoena or
even if subpoenaed he does not submit his counter-affidavit?
A: The investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
MERCADO vs. COURT OF APPEALS
July 5, 1995
HELD: “The New Rules on Criminal Procedure does not
require as a condition sine qua non to the validity of the
proceedings [in the preliminary investigation] the presence of
the accused for as long as efforts to reach him were made, and
an opportunity to controvert the evidence of the complainant is
accorded him. The obvious purpose of the rule is to block
attempts of offenses by hiding themselves or by employing
dilatory tactics."
The investigating prosecutor after the preliminary investigation will now
issue a resolution to be approved by his superior recommending the filing or
dismissal of the case. If he finds probable cause to hold the respondent for
trial, he shall prepare the resolution and information and he will certify under
oath that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses that there is a reasonable ground
to believe that a crime has been committed that the accused is probably guilty
thereof, that the accused was informed of the complaints and of the evidence
submitted against him and that he was given opportunity to submit
controverting evidence. That is a standard form in the information filed by
the prosecutor.
Q: Suppose the prosecutor failed to make that certification in the
information, is the information valid or defective?
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
A: It is still VALID. “Notwithstanding the absence in the information of
a certification as to the holding of a preliminary investigation, the information
is nonetheless considered valid for the reason that such certification is not an
essential part of the information itself and its absence cannot vitiate it as
such.” (Alvizo vs. Sandiganbayan, 220 SCRA 45)
Q: After that, what will he do? To whom will he forward his resolution?
A: To the provincial or city prosecutor or chief state prosecutor
depending on who is conducting the preliminary investigation;
Q: Is the resolution of the prosecutor appealable?
A: YES. It is appealable to the Secretary of Justice. The last paragraph
of Section 4 gives the power of review to the Department of Justice – that is,
if the case originally started in the Fiscal’s office.
The DOJ can reverse or modify resolution of a city or provincial
prosecutor and the procedure for review is governed not by the Rules of
Court, but by a department order. There is also a procedure there for appeal
or review by the DOJ (2000 DOJ Rules on Appeal, July 3, 2000).
One of the cases we have to remember here is the leading case of
CRESPO VS. MOGUL, (June 30, 1987). Here are some points discussed in
this case:
Q: What happens if the DOJ sustains the appeal?
A: It will reverse the resolution of the prosecutor.
Q: E kung na-file na?
A: Under the new rules, the fiscal is ordered to file a motion to dismiss
the case in court.
HELD: The power of the fiscal is practically absolute whether to
file or not to file. But once the case is filed in court, the power now
belongs to the judge and he is the one who will determine whether
to proceed or not to proceed.
that once the case is already in court and the accused would like to have
his case reinvestigated, the court must agree. There must always be the
concern of the court because of the absolute control is already in the court
10
once the case is filed. And take note that there is no double jeopardy in
preliminary investigation.
What happens if the judge or the MTC judge will conduct a preliminary
investigation? The judge will conduct a preliminary investigation. Ang
kanya, there is a probable cause or there is no probable cause, either way he
must forward his resolution to the provincial prosecutor. The provincial
prosecutor will be the one to decide.
Q: Do you mean to tell me the provincial prosecutor will conduct again
another preliminary investigation?
A: NO. He will just review the findings of the judge. Maybe the
provincial fiscal will simply adopt the finding of the MTC judge.
Q: Suppose sabi ng fiscal, “Di ako kuntento. I am not satisfied with the
preliminary investigation by that judge. I will conduct another preliminary
investigation” Puwede ba yan?
A: YES. The provincial prosecutor has 100% control. He may adopt the
finding and just follow the recommendation filed, or he may conduct his own
preliminary investigation.
Q: What happens if his decision is different from what the MTC judge
believes? Whose decision will prevail?
A: Fiscal’s decision will prevail. He can reverse the resolution of the
MTC judge.
And in case the respondent has been arrested while the case is under
preliminary investigation and detained in jail, according to Section 5, last
paragraph, last sentence, the provincial fiscal shall order the release of an
accused who is detained if no probable cause is found against him. This is
one instance where the opinion of the provincial prosecutor prevails over that
of the judge. The fiscal can reverse the findings of the judge eh.
The power to determine whether to file or not file does not belong
to the judiciary. “When a preliminary investigation is conducted by
a judge, the judge performs a non-judicial function, as an exception
to his usual judicial duties. The assignment of that function to
judges of inferior courts and to a very limited extent to courts of
first instance was dictated by necessity and practical
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
considerations. Consequently, the findings of an investigating
judge are subject to review by the provincial fiscal.”
CASTILLO vs. VILLALUZ
March 8, 1989
HELD: “The fiscal prevails over the judge only in the
determination of the existence of a probable cause justify the
filing of a complaint or information. This task is concededly
executive. But the determination of probable cause to justify the
issuance of a search warrant or a warrant of arrest is the
constitutional prerogative of the judge and may not be
withdrawn from him or even only limited by statute or the Rules
of Court. This task is undoubtedly judicial.”
“The findings of the fiscal in the preliminary investigation
do not control or foreclose the exercise of the power conferred
personally on the judge under Section 2 of the Bill of Rights.
That power is his alone.”
Q: Now, under the Constitution, before the RTC judge issued the warrant
of arrest because of probable cause, anong dapat gawin niya?
A: He must personally examine the complainant and his witnesses to
determine whether there is probable cause to issue or not to issue a warrant
of arrest.
Thus he can rely on the findings of the fiscal.
The Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can perform the
same functions as a commissioner for the taking of the evidence.
However, there should be a report and necessary documents
supporting the Fiscal's bare certification. All of these should be
before the judge. The judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He
should call for the complainant and witnesses themselves to
answer the court's probing questions when the circumstances of
the case so require.”
“We reiterate that in making the required personal
determination, a judge is not precluded from relying on the
evidence earlier gathered by responsible officers. The extent of
11
the reliance depends on the circumstances of each case and is
subject to the judge's sound discretion. However, (as happened
in the case of Lim) the judge abuses that discretion when having
no evidence before him, he issues a warrant of arrest.”
BUT if he is satisfied, he can issue the warrant without the need for
summoning the witnesses. He can rely on the affidavits. That is what
personally examined means.
HELD: Sabi ng SC: “Eh kung mabilis pala mag-basa ang
judge? [Ano’ng pakialam mo? Ha!] Ang importante nandoon
ang records!
Now, these issues were further supplemented by other cases in 1997. The
leading case is
HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997
ISSUE: Is it required that everything that was filed in the
fiscal’s office will really be included? Lahat ba talaga? Eh kung
makapal?
HELD: “It is NOT required that the complete or entire
records of the case during the preliminary investigation be
submitted to and examined by the judge. We do not intend to
unduly burden trial courts by obliging them to examine the
complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required,
rather, is that the judge must have sufficient supporting
documents (such as the complaint, affidavits, counter-
affidavits, sworn statements of witnesses or transcripts of
stenographic notes, if any) upon which to make his independent
judgment or, at the very least, upon which to verify the findings
of the prosecutor as to the existence of probable cause. The
point is: he cannot rely solely and entirely on the prosecutor’s
recommendation.”
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
ISSUE #1: Does the court have the power to require the
fiscal to present evidence to convince the judge that there is
probable cause to issue the warrant of arrest when the fiscal
already found probable cause to file the case?
HELD: YES. The power of the fiscal is to determine probable
cause to file while for the judge is probable cause to issue the
warrant of arrest
Ayaw mong sumunod? – then do not issue the warrant. But do not
dismiss the case because this time we are already encroaching the
power of the prosecutor.
Q: Can the judge require the fiscal to present evidence of probable cause
in convincing him to issue the warrant of arrest?
A: YES. That is the prerogative of the judge. (AMARGA VS. ABBAS)
Q: If fiscal refuses, has the judge the power to dismiss the case?
A: In the case of Amarga, no. However, under Section 6, the judge may
immediately dismiss the case if the evidence on record clearly fails to
establish probable cause.
However, without waiting for the conclusion of the investigation, the
judge may issue a warrant of arrest if he finds after an examination in writing
and under oath of the complainant and his witnesses in the form of searching
questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice.
Q: Does the fiscal have the power to issue warrant of arrest?
A: NO. His power is to conduct preliminary investigation and if there is
probable cause – File!
Q: Who will issue the warrant?
A: RTC.
That is the difference between the power of the MTC judge and the
power of the Provincial Prosecutor. Both of them have the power to conduct
a preliminary investigation in the province. But the fiscal has no power to
issue a warrant but the judge has the power to issue warrant even while the
12
preliminary investigation is going on. That is why in the province,
complainants prefer to file sa MTC para issue dayun ang warrant.
The issuance of warrant by the MTC judge is ex parte. He will just
determine it based on the affidavit of the complainant and his witnesses after
searching questions and answers. So the examination conducted by the judge
is literal in meaning. And once you are arrested, tuloy tayo. You now follow
preliminary investigation. You submit now your counter-affidavits. For what
purpose? We will determine whether the case will be filed in the RTC or not.
Section 7 is another important provision. This is called INQUEST
PRELIMINARY INVESTIGATION, related to Rule 113, Section 5 [a] and
[b] on warrantless arrest. Here, there is no need for preliminary investigation
because there is a deadline for the accused to be detained. Otherwise the peace
officer will be guilty of arbitrary detention – delay in the delivery.
And then the fiscal will now file the information in court let’s say in the
RTC.
Q: However, suppose there is no inquest prosecutor? Or there is an
inquest prosecutor but he is not available, what will happen now to the case?
A: The new provision says, “the complaint may be filed by the offended
party or a peace officer directly with the proper court” so that the accused
should be delivered.
Why is this a very radical change? There is no problem with the MTC
because you can file directly in the MTC. But as a matter of practice, you
cannot file a complaint directly with the RTC. Everything here is done by
information. The RTC does not entertain complaints filed by the police or the
offended party.
PEOPLE vs. NAVARRO
270 SCRA 393, March 25, 1997
NOTE: This case signifies that once the case reached the
court, the court has the absolute power. Anything that you like
to happen in the case like reinvestigation or absence of
preliminary investigation, the judge will be the one to approve.
FACTS: The RTC judge felt that the case should be
reinvestigated, or maybe there is no preliminary investigation.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
So he orders the fiscal to conduct preliminary investigation,
then submit the result to him afterwards what happened. Siguro,
the judge had particular confidence in the assistant provincial
prosecutor. Sabi ng judge, “The preliminary investigation
should be conducted by this particular prosecutor – provincial
assistant prosecutor Boyd Atensor.” Siya ang nag-pili ba. Sabi
ng provincial prosecutor, “Hindi! Ako ang magpili and not
you!”
ISSUE: In remanding the complaint or information to the
provincial prosecutor, may a regional trial court judge name or
designate a particular assistant prosecutor to conduct the
preliminary investigation of the case?
HELD: NO. The RTC judge is already interfering with the
office of the prosecutor. “It must be stressed that preliminary
investigation is an executive, not a judicial, function. That an
RTC judge has no authority to conduct a preliminary
investigation necessarily means that he cannot directly order an
assistant prosecutor, particularly over the objections of the
latter's superiors, to conduct a preliminary investigation. To
allow him to do so is to authorize him to meddle in the executive
and administrative functions of the provincial or city
prosecutor.”
BROCKA vs. ENRILE
192 SCRA 83
HELD: Indeed, the general rule is that criminal
prosecution may not be restrained or stayed by injunction,
preliminary or final. There are however exceptions, among
which are:
a. To afford adequate protection to the constitutional
rights of the accused;
b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions;
c. When there is a pre-judicial question which is sub
judice;
13
d. When the acts of the officer are without or in excess of
authority;
e. Where the prosecution is under an invalid law,
ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than
prosecution;
i. Where the charges are manifestly false and motivated
by the lust for vengeance; and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
Rule 114
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 no warrant and there is no case.
Q: Are you entitled to bail? Does the suspension of the privilege of the
writ of habeas corpus also carry with it the suspension of the right to bail?
Yes, he is entitled to bail once the case has been filed in court. At least
5 out of 9 justices said that.
Q: Are the same military officers facing charges before a court martial
entitled to bail?
A: In COMMENDADOR VS. DE VILLA (200 SCRA 80) the SC said:
NO, “the right to bail has traditionally not been recognized and it is not
available in the military as an exception to the general rule as embodied in
the Bill of Rights.” There is no such thing as bail in the military.
PROBLEM: Tato is charged with a capital crime. So, no bail. Ayaw mag-
surrender. Gusto niya bail muna bago surrender. (Anyway, even if you are
charged with a capital crime, you can file a petition for bail.) But he got a
lawyer and the lawyer filed a petition for bail in his behalf.
Q: In this case, can Tato apply for bail?
A: NO. The SC said, We cannot entertain the petition for bail because
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Tato is not in custody! Simple: what is the definition of bail? “Security given
for the release of a person in custody of law.”
Q: What do you mean by “in custody of law”?
A: “In custody of law” may mean
1. physical or actual custody; or
2. constructive custody. (Panderanga vs. CA, 247 SCRA 41)
ISSUE: Is the accused already in custody? Can the court
entertain his petition for bail even if he was not arrested, and the
lawyer said he was in the hospital and the court never bothered
to ask a policeman to go there, check, verify, bantayan mo yung
hospital until he gets well?
HELD: YES, he is already in the CONSTRUCTIVE
custody of the law. “It may be conceded that he had indeed filed
his motion for admission to bail before he was actually and
physically placed under arrest. He may, however, at that point
and in the factual ambience thereof, be considered as being
constructively and legally under custody. Thus, in the likewise
peculiar circumstances which attended the filing of his bail
application with the trial court, for purposes of the hearing
thereof he should be deemed to have voluntarily submitted his
person to the custody of the law and, necessarily, to the
jurisdiction of the trial court which thereafter granted bail as
prayed for. The undeniable fact is that Panderanga was by then
in the constructive custody of the law.
your bail is effective up to the RTC.
GENERAL RULE is you get another bail bond because your bail
is only up to the level of the RTC. This is back to the 1964 rules.
In the 85 Rules, iba naman – the bail is tuloy-tuloy up to the CA.
Now, RTC level lang. You have to ask for another bail bond if you
want to go further to the CA.
Q: A bail bond required the bondsmen to pay the fine of the accused, in
addition to the usual condition. Is this additional condition valid?
A: NO. The additional condition is void because it made the obligation
of the bondsmen more onerous, in violation of the constitutional provision
14
that no excessive bail shall be required may not impose additional conditions
because it might prevent or render it impossible for the accused to secure his
liberty during the trial. (Bandoy vs. CFI of Laguna, 14 Phil. 620)
Q: A condition in a bail bond states that the sureties do not undertake to
deliver the person of the accused if the reading of the sentence is postponed
to a later date, nor do they consent to such extension. Is this condition valid?
A: Conditions restricting liability on the bond when accepted by
the court and not contrary to public policy are valid.
Q: Suppose you have been convicted already, found guilty by the MTC,
maybe sentenced to 2 years imprisonment but you would like to appeal to the
RTC. While your appeal is going on, can you still post bail?
A: YES. Whether it is before or after conviction by the MTC, bail is a
matter of right.
Q: But suppose you are charged in the RTC, for example homicide
punishable by reclusion temporal, are you entitled to bail?
A: YES, it is also a matter of right. For as long as the prescribed penalty
is not life imprisonment, perpetua or death, it is a matter of right. So, up to
reclusion temporal it is a matter of right.
file an application or petition for bail. And that is when the prosecution
will have to present evidence immediately to prove that the evidence of guilt
is strong.
Q: Suppose after hearing for the petition for bail, the court is convinced
that the evidence of guilt is not strong and the court said so, what happens
now to bail?
A: Bail becomes a matter of right.
The court's discretion is limited to determining whether or not
evidence of guilt is strong. But once it is determined that the
evidence of guilt is not strong, bail also becomes a matter of right.”
The application for bail may still be filed and acted upon by the
trial court despite the filing of a notice – that is a modification of
the Omosa ruling
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
puwede pa even if there is already a notice of appeal on the condition
that the records are still with the RTC. If the records are already in the
appellate court, you better apply for bail before the Court of Appeals.
Even if he jumps bail 100 times you cannot deny him bail for as long as
the crime is not punishable by perpetua to death. (Sy Guan vs. Amparo, 79
Phil. 670; People vs. Alano, 81 Phil. 19)
Q: What is the remedy to this kind of accused? Remedy?
A: Taasan mo ang bail.
Previous abscondence or escape is not a ground for the denial of the bail;
it merely gives the court discretion to increase the amount of the bond as will
reasonably tend to assure the presence of the accused. (Sy Guan vs. Amparo,
79 Phil. 670; People vs. Alano, 81 Phil. 19)
Take note that the crime is punishable by DEATH not only at the
time of its commission but also at the time of the application for
bail. The law uses the conjunction “and.” C.f. RA 7659 gives us a
list of capital offenses.
This means if the accused is charged with a crime which is punishable
by death, reclusion perpetua, or life imprisonment, there is NO BAIL even at
the start of the trial or even before judgment of conviction, provided that the
two (2) conditions are present.
“xxx regardless of the state of the criminal prosecution.” Meaning, NO
BAIL before conviction. Lalo na pag after conviction!
Q: What happens now to those witnesses? Balik na naman sila sa trial?
A: NO. Under Section 8, the evidence received during the bail hearing is
automatically reproduced at the trial. Di na kailangang ulitin pa. But you can
add more witnesses and more evidence.
After that, we will now determine if the accused is guilty or not guilty.
Yan na ang guilt beyond reasonable doubt.
there must be a hearing. Even if the prosecution will not want to present
evidence, the court must require a hearing. And the court cannot dispense
with the hearing.
15
Let’s go to some decided cases.
TUCAY vs. JUDGE DOMAGAS
[Adm. Matter No. RTJ-95-1286] March 2, 1995
HELD: “Although the Provincial Prosecutor had
interposed no objection to the grant of bail to the accused,
respondent judge should nevertheless have set the petition for
bail for hearing and diligently ascertained from the prosecution
whether the latter was not really contesting the bail
application.”
“He should have called a hearing for the additional reason
of taking into account the guidelines in Rule 114 in fixing the
amount of the bail. Only after satisfying himself that the
prosecution did not wish to oppose the petition for bail for
justifiable cause (e.g., for tactical reasons) and taking into
account the factors enumerated in Rule 114, sec. 6 for fixing
bail should respondent judge have granted the petition for bail
and ordered the release of the accused.”
HELD: “A hearing, in the nature of a summary proceeding
entailing judicial determination is required where the grant of
bail is addressed to the discretion of the court. The prosecution
should be given the opportunity to adduce evidence thereat after
which the court should then spell out at least a summary or
resume of the evidence on which the order, whether it be
affirmative or negative, is based. Otherwise, the order is
defective or voidable.”
Meaning, if you grant or deny bail, may court order yan. Kailangang i-
summarize mo ang evidence. then you state why you believe it is strong or it
is weak. Otherwise the judge is administratively liable for not complying with
the requirement.
AURILLO vs. FRANCISCO
235 SCRA 283
HELD: In a hearing for petition for bail, affidavits
will not suffice. Witnesses must be present to testify.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Affidavits will suffice only when it determines probable
case for the purpose of whether or not to issue search
warrant. The judge has the personal duty of calling the
witnesses one by one to hear them for or review the
evidence, i.e. affidavits presented at the fiscal’s office.
“Verily, it was patent error for him to base his order
granting bail merely on the supporting affidavits attached
to the information since those were merely intended to
establish probable cause as basis for the issuance of an
arrest warrant, and not to control his discretion to deny or
grant bail in all situations”
AGUIRRE vs. JUDGE BELMONTE
October 27, 1994
HELD: “Even if the prosecution fails to adduce evidence
in opposition to an application for bail of an accused, the court
may still require that it answer questions in order to ascertain
not only the strength of the state's evidence but also the
adequacy of the amount of bail.”
BRAVO, JR. vs. BORJA
134 SCRA 466
FACTS: The accused was charged with murder – perpetua
to death – talagang non-bailable yan. The accused filed a
petition for bail where the case is pending on the argument that
when he committed a crime, he was only 16 years old. He
attached his birth certificate in the application for bail. Sabi
niya, if found guilty, the penalty is automatic one (1) degree
lower – so, temporal. The worst that will happen to him is
temporal. Therefore, bail now becomes a matter of right.
ISSUE #1: In the hearing for bail, should the court allow
the presentation of evidence of mitigating or aggravating
circumstances?
HELD: NO. Bravo, Jr. is wrong. In the hearing for a
petition for bail, the presentation of aggravating and mitigating
16
circumstances is NOT covered because if the court will
required the presentation of said circumstances, then there
would be a need for a trial on the merits of the case. All the
court has to do after the bail hearing would be to render a
decision. That would defeat the purpose of the hearing for bail.
As a matter of fact, his birth certificate was attached to this
petition and the prosecution DID NOT challenge his minority.
Since the plea of minority is already before us and the accused
did not challenge it, we cannot close our eyes to the fact that
even if we fin him guilty, the penalty to be imposed would not
be reclusion perpetua or death but lower. Since the probable
penalty is not death or perpetua, then he is entitled to bail as a
matter of right.
Q: So what are the principle points to remember in the case of Bravo, Jr?
A: The following:
1. that in a petition for bail there should be no evidence of any
aggravating or mitigating circumstances. It should not be
presented in a petition for bail. This should be presented during
the trial;
2. however, despite the fact that it should not be presented, if it is
alleged and presented there and the prosecution did not dispute
it, the court should consider it just the same; and
3. even if the accused is charged with a crime punishable by death,
perpetua or life imprisonment and the evidence of guilt is
strong, if the probable imposable penalty is less than perpetua,
bail becomes a matter of right.
That is the effect. Whereas, if 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 only 6 years or less,
it may be granted although it is not a matter of right.
The court can either follow the recommendation or raise it or lower it
because aside from that, marami pa eh like financial ability of the accused,
character or reputation of the accused, etc. And all these guidelines where
taken from the ruling in the case of VILLASEÑOR VS. ABANO (21 SCRA
312)
Q: Is recognizance possible in all criminal cases?
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
A: NO. Under the rules, recognizance is only allowed whenever allowed
by law or these Rules. So, if it is not allowed by law or the rules, hindi
puwede.
Q: What are the instances when recognizance is allowed by the law or
this Rules?
A: In the case of ESPIRITU VS. JOVELLANOS (280 SCRA 579):
1. Under RA 6036 – when the offense charged is for violation of
an ordinance, a light felony, or a criminal offense, the imposable
penalty for which does not exceed 6 months imprisonment
and/or P2,000 fine, under the circumstances provided in R.A.
No. 6036;
2. Rule 114, Section 16, last paragraph:
“A person in custody for a period equal to or
more than the minimum of the principal penalty
prescribed for the offense charged, without
application of the Indeterminate Sentence Law or
any modifying circumstance, shall be released on a
reduced bail or on his own recognizance, at the
discretion of the court.”
3. Rule 114, Section 24:
“No bail shall be allowed after a judgment of
conviction has become final. If before such finality,
the accused applies for probation, he may be
allowed temporary liberty under his bail. When no
bail was filed or the accused is incapable of filing
one, the court may allow his release on
recognizance to the custody of a responsible
member of the community. In no case shall bail be
allowed after the accused has commenced to serve
sentence.”
4. Under PD 603 (Child and Youth Welfare Act) – in case of a
youthful offender held for physical and mental examination,
17
trial, or appeal, if he is unable to furnish bail and under the
circumstances envisaged in P.D. No. 603, as amended.
As a general rule, when the criminal case is filed, there will be
warrant of arrest. If there is warrant of arrest, there must be a bail
either in cash or recognizance.
Q: What are the instances where despite the pendency of the criminal
case, the accused is not required to post bail? Meaning, he is exempt from
putting up a bail bond because the law or the rules says so.
A: The following are the instances:
1. Under RA 6036 – yung mga 6 months or less under the
conditions mentioned therein;
2. When the crime is covered by the Summary Rules because of
Section 16 of Rule 114. When a case is filed under the Summary
Rules, a mere notice is sufficient. No need of a warrant of arrest.
3. Section 9 [b] of Rule 112 (this is a new sentence):
there is no need to issue a warrant of arrest maybe because
the court believes that you will not run away. In effect, no bail
shall be required.
Section 17 is another important provision on where to file the bail.
Normally, you file the bail before the same court where you case is pending.
But if the judge is not around, under paragraph [a], puwede man any RTC
judge, MTC judge, etc.
Q: What are the instances where the accused is only allowed to post bail
before the very same court where the case is pending?
A: Under paragraph [b], the following are the instances:
1. if you seek to be released on recognizance, no other judge can
grant it other the judge where you case is pending;
2. when bail is a matter of discretion. For example: Ms. Tormon is
accused of a capital offense and she would like to file a petition
for bail because the evidence of guilt is not strong, that should
be decided by the very court where her case is pending.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: Is the MTC entitled to entertain a petition for bail?
A: YES
Q: What are the instances when a MTC is entitled to entertain
applications for bail?
A: The following are the instances:
1. Under paragraph [b], the application may be filed in the court
where the case is pending, whether on preliminary
investigation, trial, or appeal. With this provision, it would
seem puwede;
2. MTC can entertain petitions for bail in cases not cognizable by
it filed before it for purposes of preliminary investigation. That
is why in one case the SC held that inferior courts (MTC) can
entertain applications for bail in capital offenses as an incident
to its power to conduct preliminary investigation. (Manigbas vs.
Luna, 98 Phil. 466); and
3. Section 35 of the Judiciary law (Special jurisdiction of the
MTC) –the MTC may hear and decide petitions for a writ of
habeas corpus or applications for bail in the absence of ALL
the RTC judges.
Let’s go now to the last paragraph of Section 17:
“Any person in custody who is not yet charged in
court may apply for bail with any court in the province,
city, or municipality where he is held.”
This is one provision that has stunned so 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 under the
last paragraph of Section 17 is Rule 112 Section 7 on INQUEST
preliminary investigation – when a person is lawfully arrested
without a warrant, he will be detained immediately without
18
preliminary investigation. But if he demands a preliminary investigation,
he can get it but he must waive the effects of Article 125 of the RPC.
Another important provision is Section 21 – how bail is forfeited.
If you are required to appear in court for an arraignment, or for some
other reason, and you did not appear, the first step is, upon motion of the
prosecution, the court will issue an order to confiscate the bond and the court
will also direct the bondsmen:
1. to produce the body of their principal within 30 days; AND
2. to explain why the accused did not appear before the court when
first required to do so.
3.
4. Dalawa yan – (1) produce him within 30 days, and (2) explain why
you failed to produced him. If you satisfy both conditions, no
problem – the court will issue an order lifting the order of the
forfeiture.
5.
6. Q: Suppose you failed to comply both or one of the conditions, what
will happen?
7. A: The court will render judgement on the bond. Meaning, the
bonding company is now liable on its bond.
8.
9. So ang una, order of confiscation or forfeiture of the bond. The
second stage is, if the conditions are not met, there will be judgment
against the bond. So that is the step-by-step application of Section
21.
10. HELD: “A court has the power to prohibit a person admitted to
bail from leaving the Philippines. This is a necessary
consequence of the nature and function of a bail bond. The
condition imposed upon petitioner to make himself available at
all times whenever the court requires his presence operates as a
valid restriction on his right to travel.” (because this is one of
the conditions of the bail bond – you must be available
whenever the court requires you to appear.)
“The court cannot allow the accused to leave the country
without the assent of the surety because in accepting a bail bond
or recognizance, the government impliedly agrees that it will
not take any proceedings with the principal that will increase
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
the risks of the sureties or affect their remedies against him.
Under this rule, the surety on a bail bond or recognizance may
be discharged by a stipulation inconsistent with the conditions
thereof, which is made without his assent.”
In other words, the court has always the power to prevent an accused
from leaving for abroad. And that constitutional provision was never
interpreted to limit the power of the court. Therefore, Silverio was citing the
wrong provision. The philosophy does not apply to Silverio. Yaan!
ISSUE: May a court trying a criminal case issue a hold-
departure order motu propio to prevent the accused from
leaving the country even if the prosecution did not file any
motion to issue such order?
HELD: YES. “The court has the power to issue motu
propio a hold-departure order. The hold-departure order is but
an exercise of the court’s inherent power to preserve and to
maintain the effectiveness of its jurisdiction over the case and
the person of the accused.”
HELD: “The Sandiganbayan acted properly. Respondent
court had to seek expert opinion because petitioner's motion
was based on the advice of her physician. The court could not
be expected to just accept the opinion of petitioner's physician
in resolving her request for permission to travel. The subject lay
beyond its competence and since the grant of the request
depended on the verification of the claim that petitioner was
suffering from a medical condition that was alleged to be
serious and life threatening, the respondent court, we think,
followed the only prudent course available of seeking the
opinion of other specialists in the field.”
ISSUE: Is there a need of hold-departure orders everytime
Cojuangco travels abroad considering that many things
happened to Cojuangco?
HELD: “We resolve in the negative. The travel band
should be lifted, considering all the circumstances now
19
prevailing. It now becomes necessary that there be strong and
compelling reasons to justify the continued restriction on
Cojuangco’s right to travel abroad. Admittedly, all of
Cojuangco’s previous requests to travel abroad has been
granted and that Cojuangco has always returned to the
Philippines and complied with the restrictions imposed on
him.”
Q: If you post bail, are you under estoppel to question the validity of the
arrest or the regularity or absence of a preliminary investigation?
A: Under Section 26, NO. The pivotal point is for as long as you have
not yet entered your plea. Once you entered your plea, all the defects are
considered waived. But the posting of bail alone is not considered as waiver
to raise those issue.
Rule 115
PEOPLE vs. SEQUERRA
October 12, 1987
HELD: “Confronted by the full panoply of state authority,
the accused is accorded the presumption of innocence to lighten
and even reverse the heavy odds against him. Mere accusation
is not enough to convict him, and neither is the weakness of his
defense. The evidence for the prosecution must be strong per
se, strong enough to establish the guilt of the accused beyond
reasonable doubt. Otherwise, he is entitled to be freed.”
“But as solicitous as the Bill of Rights is of the accused, the presumption of
innocence is not an automatic or blanket exoneration. It is at best only an
initial protection. If the prosecution succeeds in refuting the presumption, it
then becomes the outlook of the accused to adduce evidence that will at
least raise that inkling of doubt that he is guilty.
So the accused cannot rely forever in the presumption of innocence. This
is a disputable presumption. The prosecution can destroy that presumption by
presenting evidence that you are guilty and once the prosecution has
presented that you cannot anymore rely on this presumption. It is now your
duty to present evidence that you are innocent.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: Can you waive the right to be informed of the nature and cause of the
accusation against him?
A: NO. It is not waivable because public interest is involved in this right,
the public having an interest in seeing to it that no person is unlawfully
deprived of his life or liberty. (U.S. vs. Palisoc, 4 Phil. 207)
There are certain rights of the accused that are waivable; there are certain
rights that cannot be waived.
Q: But technically, do you have the obligation to be there?
A: NO. This right is waivable because the law says the accused may
however waive his presence during the trial, unless the presence of the
accused is specifically ordered by the court for purposes of identification.
HELD: YES. “Waiver of appearance and trial in absentia
does not mean that the prosecution is thereby deprived of its
right to require the presence of the accused for purposes of
identification by its witnesses which is vital for the conviction
of the accused. Such waiver of a right of the accused does not
mean a release of the accused from his obligation under the
bond to appear in court whenever so required. The accused may
waive his right but not his duty or obligation to the court.”
So, you can waive your right but not your duty.
But take note that in trial in absentia, it assumes that:
1. the court already acquired jurisdiction over your person;
2. you were arrested; and
3. you must first be arraigned. So arraignment is a prerequisite for
trial in absentia to apply.
Q: What is the difference between these two sentences in [c]: “The absence
of the accused without justifiable cause at the trial of which he had notice
shall be considered a waiver of his right to be present thereat” and “when an
accused under custody escapes, he shall be deemed to have waived his right
to be present on all subsequent trial dates until custody over him is
regained”?
20
A: In the first sentence, the accused is absent without justifiable cause during
the particular trial date, and so the trial may continue. But he can still appear
in the next trial. He only waived his right to be present on that date but he has
not waived his right to be present on subsequent trial dates. He has not waived
his right to present evidence.
In the second sentence, iba eh. You escaped or you jumped bail. You are not
only waiving your right to be present on this date but on all subsequent dates.
And therefore, there can be a judgment against you when the prosecution
rests.
“The fugitive is deemed to have waived such notice precisely because he
has escaped, and it is also this escape that makes his failure to appear at
his trial unjustified. Escape can never be a legal justification. His escape
will, legally speaking, operate to his disadvantage as he will be unable to
attend his trial, which will continue even in his absence and most likely
result in his conviction.”
Upon the termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for the
time until the accused who escape from custody finally decides to appear
in court to present his evidence and cross-examine the witnesses against
him. To allow the delay of proceedings for this purpose is to render
ineffective the constitutional provision on trial in absentia.”
ISSUE #2: Why is it that an escapee who has been tried in absentia does
not retain his right to cross-examine witnesses and to present evidence?
How come those rights are lost?
HELD: “By his failure to appear during the trial of which he had notice,
he virtually waived these rights. This Court has consistently held that the
right of the accused to confrontation and cross-examination of witnesses
is a personal right and may be waived. In the same vein, his right to
present evidence on his behalf, a right given to him for his own benefit
and protection, may be waived by him.” So an escape can be considered
a waiver.
HELD: NO, he is still presumed innocent. “A judgment of conviction
must still be based upon the evidence presented in court. Such evidence
must prove him guilty beyond reasonable doubt. Also, there can be no
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
violation of due process since the accused was given the opportunity to
be heard.” If the prosecution does not present anything, he would be
acquitted.
Is the right to counsel waivable by the accused? YES. The right to counsel
may be waived by the accused BUT the waiver must be clear, intelligent
and competent.
So, you are waiving your right against self-incrimination if you testify in
your own behalf because the law is clear – subject to cross-examination on
matters covered by the direct examination. You can be cross-examined on
matters covered by direct examination. Let’s go back to Evidence.
So we follow the American Rule on cross-examination of the accused in
criminal cases.
This is the right against self-incrimination – Nemo tenetur seipsum
accusare.
Take note that the right of the accused against self-incrimination is not
limited to testimonial evidence. According to the SC, it refers not only to
testimonial compulsion but also to production by the accused of incriminating
documents and things. (Villaflor vs. Summers, 41 Phil. 62) So you cannot
subpoena his personal documents.
However, supposed you are asked to perform a mechanical act, for
example footprint, “Ilagay mo nga yang paa mo diyan beh! Let’s find out
kung pareho kayo ng size nung footprint.” This is not covered. Mechanical
lang yan eh – physical act. However, to produce specimen signature requires
concentration and intelligence. This is covered by the protection. (People vs.
Otadora, 86 Phil. 244; Bermudez vs. Castillo, 64 Phil. 433; Beltran vs.
Samson, 53 Phil. 570)
There was a tricky question in the Bar exam in the past:
PROBLEM: The accused is charged with falsification for writing a
falsified letter. The prosecution present its evidence that this letter was
21
written by the accused. The accused said, “No, that is not my handwriting.”
On cross-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-
incrimination. Rule on the objection.
ANSWER: The objection should be overruled. The case is not covered
by the right against self-incrimination. He can be compelled because he
testified that it is not his handwriting. From that moment he waived his right
against self-incrimination. It is unfair that you say it is not your signature and
I have no way of telling you to give me a specimen.
Q: Is the right to confront and cross-examine the witnesses against him
waivable?
A: YES as ruled by the SC in the case of GIMENEZ VS. NAZARENO,
(160 SCRA 1), such right is waived if the accused decides to run away, jumps
bail, or disappears – he is automatically waiving the right to confront and
cross-examine the witnesses against him.
Q: One last point, does the right to confront and cross-examine the
witnesses against you, include your right to know their names and addresses
in advance?
A: NO, the accused has no such right because the case of the prosecution
might be endangered if the accused were to know the prosecution witnesses
in advance, for known witnesses might be subjected to pressure or cowered
not to testify. (People vs. Palacio, L-13933, May 25, 1960) So, you confront
them during the trial, not now.
Q: Suppose my witness is somewhere there in Cagayan de Oro, can I
secure a subpoena to compel him when under the rules on subpoena a witness
is not bound if he resides more than 100 kilometers?
A: That has already been answered in the cases of PEOPLE VS.
MONTEJO and MILLORCA VS. QUITAIN. The SC said that the 100-km
limitation (formerly 50 kms.) does not apply when you are talking of
witnesses for the defense in a criminal case because of the Constitutional right
to have compulsory process issued to secure the attendance of witnesses in
his behalf. That right cannot be precluded by provisions in the Rules of Court.
ALVIZO vs. SANDIGANBAYAN
220 SCRA 55
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: It must not be lost sight of that the concept of
speedy disposition of cases is a RELATIVE term and must
necessarily be a flexible concept. Delays per se are
understandably attendant to all prosecutions and are
constitutionally permissible with the monition that the attendant
delay must NOT be OPPRESSIVE. [Hindi palagi. Pa-minsan-
minsan okay lang man ba] Hence, the doctrinal rule is that in
the determination of whether or not that right has been violated,
the factors that may be considered and balanced are:
a.) the length of delay;
b.) the reasons for such delay;
c.) the assertion or failure to assert such right by the
accused; and
d.) the prejudice caused by the delay.
Q: What are the remedies of an accused whose rights to a speedy trial is
being violated because the prosecution keeps on postponing the case? How
do you invoke this right to speedy trial?
A: There are three (3) possible remedies:
1. The accused should OPPOSE the postponement and insist on
trial. If the court denies the postponement and directs the
prosecution to proceed and cannot do so because he does not
have the evidence, the accused should move for dismissal of the
case on the ground of failure to prosecute or insufficiency of
evidence. (Jaca vs. Blanco, 86 Phil. 452; Gandicela vs. Lutero,
88 Phil. 299; People vs. Diaz, 94 Phil. 714) The dismissal is
equivalent to an acquittal and there is no way for that case to be
brought back because it will amount to double jeopardy.
(People vs. Diaz, 94 Phil. 714)
2. If the court grants the postponement everytime the fiscal asks
for it, over the protest of the accused, the latter’s remedy is
mandamus to compel dismissal of the case; (Mercado vs.
Santos, 66 Phil. 215)
3. If the accused is restrained of his liberty, his remedy is habeas
corpus to obtain his freedom. (Mercado vs. Santos, 66 Phil. 215;
Conde vs. Rivera, 45 Phil. 650)
22
Rule 116
PEOPLE vs. DE ASIS
December 7, 1993
HELD: “There is nothing that could prevent the prosecution from
presenting witnesses in court not listed in the information, as it is well
settled that the court has the undisputed right to call on a witness whose
name does not appear in the list of the fiscal, unless the omission of said
witness is intentional and tainted with bad faith. The established rule is that
the prosecution
Q: Now, what happens if a case is tried without arraignment?
A: The GENERAL RULE, that is irregular – the proceedings are tainted
with irregularity because arraignment is MANDATORY. (U.S. vs. Palisoc,
4 Phil. 207). HOWEVER, there was an instance where the SC considered
the proceedings as valid where the lawyer of the accused also did not object
the absence of the arraignment.
“We find that while the arraignment of the appellant was conducted after
the cases had been submitted for decision, the error is non-prejudicial
and has been fully cured when counsel for the appellant entered into trial
without objecting that his client had not yet been arraigned. Said counsel
had also the full opportunity of cross-examining the witnesses for the
prosecution. There was, therefore, no violation of the appellant's
constitutional right to be informed of the nature and cause of the
accusation against him.”
“There is no law or rule requiring an arraignment during the preliminary
investigation. Under Section 1, Rule 116 of the Revised Rules of Court,
the arraignment must be conducted by the court having jurisdiction to try
the case on its merits.”
Q: Now, is there such a thing as arraignment by proxy?
A: Wala. The accused must be personally present. He must enter his
plea.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: Halimbawa ayaw mag-enter ng plea? COURT: “What do you say—
Guilty or Not guilty?” ACCUSED: “No comment. I do not want to say
anything.”
A: Under paragraph [c], a plea of "Not guilty" will be entered, or
conditional plea, because a plea must be absolute and unconditional.
Q: Halimbawa pag-present ng evidence, na prove na wala pala siyang
kasalanan?
A: Then, under the rules, the plea of “guilty” is automatically withdrawn,
and the court will order the substitution of “not guilty” because, when you
plead guilty, you are not supposed to 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 guilty.
That is why during the arraignment, according to the previous section
paragraph [f], the private offended party shall be required to appear for
purpose of plea-bargaining.
Q: Now suppose the offended party will not appear during the
arraignment?
A: According to paragraph [f], “in case of failure of the private offended
party to appear despite due notice, the court may allow the accused to enter
a plea of guilty to a lesser offense which is necessarily included in the offense
charged with the conformity of the trial prosecutor alone”. So, the consent
of the prosecutor would be enough.
Murder to homicide; Theft is part of Robbery; Qualified theft, simple
theft; from serious to less serious physical injuries; that is the condition – the
lesser offense will be included in the offense charged.
Now, the SC went back to the original provision “which is necessarily
included in the offense charged.”
After arraignment but before trial, the accused may still allowed to plead
guilty to said lesser offense after withdrawing his plea of not guilty. After
you are arraigned you can still change your mind for as along as the
prosecution has not yet commenced the presentation of evidence. And there
is no need of amending the complaint or information, automatic na yan, less
paperworks for the prosecutor.
23
AMATAN vs. JUDGE AUJERO
[Adm. Matter No. RTJ-93-956] September 27, 1995
FACTS: The accused was charged with homicide. So obviously, he
killed somebody. During the plea bargaining, sabi ng accused, “We
would like to plead guilty to the lesser offense of attempted homicide (2
degrees lower).”
HELD: The fact of death of the victim cannot by simple
logic and plain common sense be reconciled with the plea of
guilty to the lower offense of attempted homicide. (imagine,
namatay, ngayon buhay na? how can you reconcile these two?)
The crime of homicide as defined in Article 249 of the Revised
Penal Code necessarily produces death; attempted homicide
does not.
However, the law is not entirely bereft of solutions in such cases. In
instances where a literal application of a provision of law would lead to
injustice or to a result so directly in opposition with the dictates of logic
and everyday common sense as to be unconscionable, the Civil Code,
particularly Article 10, admonishes judges to take principles of right and
justice at heart.
“You have not proved any qualifying circumstance, so I will not present
any evidence anymore. I will just plead to a lesser offense of Homicide.”
ISSUE: Can plea bargaining still be entertained at that stage? Because
normally plea-bargaining is done before the trial. Is that allowed?
HELD: YES. There is nothing wrong with that, provided the prosecution
does not have sufficient evidence to establish the guilt of the accused for
the crime charged. The only basis for allowing a plea of guilty to a lesser
offense is nothing more and nothing less than the evidence already in the
record. There is nothing wrong with that procedure.
Q: What happens if an accused enters a plea of guilty?
A: The GENERAL RULE is that there would be no trial anymore. No
more presentation of evidence because the accused has already admitted the
crime.
Q: What is the implication of a plea of guilty?
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
A: That the accused is admitting the essential elements of the crime as
charged in the information, and according to the SC, including the
aggravating circumstances.
HOWEVER, according to the SC, even if there is a plea guilty, certain
facts alleged in the information are not deemed admitted. What are those facts
that are deemed not admitted? These are:
1.) Facts not alleged in the complaint or information;
2.) Mere conclusions of facts;
3.) The jurisdiction of the court. So even if I plead guilty, I can still
question later the jurisdiction of the court;
4.) The sufficiency of the complaint or information is not
considered even if there has been a plea of guilty.
Q: So what happens if I plead guilty and it turns out there is no crime?
A: There can be no conviction because the sufficiency of the complaint
or information is not admitted by a plea of guilty.
On the other hand, when the accused pleads not guilty, then the issues
are joined and the case is ready for trial. That is the counterpart of an answer
in civil procedure because there is no Answer in criminal cases. Your plea is
your answer.
As already emphasized in some cases, when you enter a plea of not
guilty, you are considered to have waived any previous defect, like lack of
preliminary investigation or validity of arrest. Those things are deemed cured
by entering a plea of not guilty.
Now, going back to the GENERAL RULE, when a person pleads guilty, no
more trial, he can be convicted, EXCEPT when he is charged with a capital
offense.
Q: So when a person pleads guilty to a capital offense, can the court
sentence him to death based on his plea of guilty?
A: NO. The correct procedure is:
1.) The court shall conduct a searching inquiry into the
voluntariness and full consequences of his plea. The court must
determine whether he really understood it and its effects;
2.) Even if the accused pleads guilty, the court will still require the
prosecution to prove the guilt of the accused. Thus, the plea of
24
guilty is not accepted anymore in capital offense. That is only
corroborative because the prosecution is still required to present
evidence;
3.) The accused may still present evidence in his behalf.
PEOPLE vs. ALICANDO
251 SCRA 293
HELD: “To show the voluntariness of the plea of guilt of
the accused and that the court’s questions demonstrate the
accused full comprehension of the consequences of his plea, the
records must reveal information about the personality profile of
the accused which can serve as a trustworthy index of his
capacity to give a free and informed plea of guilt. The age,
socio-economic status and educational background of the
accused must be plumbed by the trial court.”
So, you must get the personality profile of the accused – the age, socio-
economic status as well as his educational background.
to require the accused to fully narrate the incident that
spawned the charges against him, or by making him reenact the
manner in which he perpetrated the crime, or by causing him to
furnish and explain to the court missing details of significance.”
“The trial court should also be convinced that the accused
has not been coerced or placed under a state of duress either by
actual threats of physical harm coming from malevolent or
avenging quarters and this it can do, such as by ascertaining
from the accused himself the manner in which he was
subsequently brought into the custody of the law; or whether he
had the assistance of competent counsel during the custodial
and preliminary investigations; and, ascertaining from him the
conditions under which he was detained and interrogated during
the aforestated investigations. Likewise, a series of questions
directed at defense counsel as to whether or not said counsel
had conferred with, and completely explained to the accused the
meaning of a plea and its consequences, would be a well-taken
step along those lines.”
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: Can there be reception of evidence if the accused enters a plea of
guilty to a non-capital offense?
A: YES. There is no need for the presentation of evidence but if the court
wants it, pwede rin, the court can till require it. That is why reception of
evidence is discretionary to determine the penalty to be imposed.
HELD: YES. Under the Rules, when the accused pleads
guilty to a non-capital offense the court may receive evidence
from the parties to determine the penalty to be imposed. This
rule is at most directory.
There is no rule which provides that simply because the
accused pleaded guilty to the charge that his conviction
automatically follows.”
according to the SC, is for the judge to order the withdrawal
of the plea of guilty and substitute it with a plea of not guilty.
Q: Can a plea of guilty be withdrawn?
A: YES.
Q: Suppose there is already a judgment of conviction, can he still
withdraw?
A: YES, as long as the judgment of conviction is not yet final.
The accused, before arraignment, can move for a bill of particulars to
enable him to prepare properly for the trial. Then he must specify the defects.
Civil case, pareho.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office
for preliminary investigation?
HELD: NO. It is only applicable when the case is already in court for
trial or arraignment.
Can the mode of discovery under the Rules of Court in criminal cases
apply during the preliminary investigation?
The fact that the law is silent does not mean that it does not apply.
(Meaning, even if it is under preliminary investigation, your liberty is
already in danger.) The right to discovery is rooted on the constitutional
25
protection of due process which we rule to be operational even during
the preliminary investigation of potential accused.”
BAR QUESTION : What are the legal effects of insanity or unsound
mental condition of the accused?
A: It DEPENDS as to when was he insane –
1. Suppose he was insane at the time he committed the crime but
now he is OK, then that is not a ground for the suspension of
the arraignment, not even a ground for a motion to quash unless
the information admits that he is insane when he committed the
crime in which case you can move to quash under Rule 117,
Section 3 [h] – that the information contains averments which
in truth would constitute a legal excuse or justification.
But there is no prosecutor crazy enough to file an
information admitting that the accused was insane when he
committed the crime. That is tantamount to admitting that he is
exempt from liability. It is the defense who will prove insanity.
So what is the effect? You enter your plea of not guilty and let’s
go to trial and I will prove insanity as my defense.
2. Suppose he became insane when the case is set for arraignment
but he was normal when he committed the crime? Then we
apply Rule 116, Section 11 – you move for the suspension of
the arraignment.
3. Suppose he became insane after the arraignment? You move to
postpone the trial because he cannot adequately defend himself
if he is crazy. The trial should be suspended.
4. Suppose he became insane when he is already convicted and
serving sentence? Let us go back to the Penal Code, Article 86
– it is a ground for a motion for the suspension of the execution
of the sentence.
MOGUL doctrine
Rule 117
HELD: “As a general proposition, a motion to quash on the
ground that the allegations of the information do not constitute
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the offense charged, or any offense for that matter should be
resolved on the basis alone of said allegations whose truth and
veracity are hypothetically admitted. However, additional facts
not alleged in the information, admitted or not denied by the
prosecution may be invoked in support of the motion to quash.”
Instances when the court has no jurisdiction:
1.) the court has no jurisdiction to try the case because of the
penalty;
2.) the court has no jurisdiction to try the offense because it is
committed in another place – territorial jurisdiction; or
3.) the court has no jurisdiction over the person of the accused
because the latter has never been arrested and never surrendered
himself.
So if it was the clerk who signed for the city prosecutor (e.g. By: Kent Clark
– clerk typist), the accused can move to quash because the clerk is not
authorized. Remember, if the fiscal filed an information without the previous
complaint signed by the victim or by the parents, the same can be quashed.
CUDIA vs. COURT OF APPEALS
January 16, 1998
HELD: “An infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by silence,
acquiescence, or even by express consent.”
Q: Now, what is your ground to quash?
A: You say, “It does not comply with the prescribed form” because the
correct form requires certification. It is a ground for a motion to quash.
This refers to a duplicitous complaint or information – when it charges
more than one offense under Rule 110, Section 13. It is not allowed. However
under Rule 120, Section 3 it is waivable. If the accused fails to object to it
before trial, the court may convict him of as many offenses as are charged
and proved, and impose on him the penalty for each offense,
26
Q: How is criminal liability extinguished?
A: Under Article 89 of the RPC:
1.) by death of the convict;
2.) by service of sentence;
3.) by amnesty;
4.) by absolute pardon;
5.) by prescription of the crime;
6.) by prescription of the penalty;
The complaint or information contains averments which if true would
show that you are NOT liable.
HELD: NO, it cannot be quashed because of “paragraph
[g] of Section 3 Rule 117 which states that the accused may
move to quash the complaint or information where it contains
averments which, if true, would constitute a legal excuse or
justification. Hence, for the alleged privilege to be a ground for
quashing the information, the same should have been averred in
the information itself.” Meaning, the information should admit
that it is privileged in nature. If it is not stated there, then it is
not admitted.
“The privilege should be absolute, not only qualified.
Where, however, these circumstances are not alleged in the
information, quashal is not proper as they should be raised and
proved as defenses. With more reason is it true in the case of
merely qualifiedly privileged communications because such
cases remain actionable since the defamatory communication is
simply presumed to be not malicious, thereby relieving the
defendant of the burden of proving good intention and
justifiable motive. The burden is on the prosecution to prove
malice. Thus, even if the qualifiedly privileged nature of the
communication is alleged in the information, it cannot be
quashed especially where prosecution opposes the same so as
not to deprive the latter of its day in court, but prosecution can
only prove its case after trial on the merits.”
SITUATION: An information is filed against you and it is not in the
prescribed form.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: What would the court do?
A: Based on Section 4, the court will, instead of quashing , allow the
fiscal to amend. And your motion is already moot and academic. But suppose
the court will quash the information because it was filed by somebody who
was not authorized to file and the motion to quash is sustained, it does not
mean to say that the case cannot be re-filed since the defects are incurable.
SITUATION: The case of homicide is filed in the MTC when actually
it should be filed in the RTC. Since the MTC has no jurisdiction, you file a
motion to quash. And the judge shall quash it.
Q: What would the fiscal do?
A: Tomorrow he will re-file it. So when the case is dismissed on such a
ground – lack of jurisdiction or it does not conform with the prescribed form
– the rule is it is not a bar to re-file the case. It can be filed again.
EXCEPT when the ground for dismissal is falling under paragraphs [g]
and [i] of Section 3, Rule 117.
Q: What is paragraph [g]?
A: “That the criminal action or liability has been extinguished.” If the
case is quashed on this ground, that is the end since the same is
extinguished already. You cannot re-file it anymore.
Q: What is paragraph [i]?
A: “that the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.” So you cannot re-file the
information because of double jeopardy.
Let’s go to the Constitution. Under Article 3, Section 21, there are two
(2) sentences:
1.) “No person shall be twice put in jeopardy of punishment for the
same offense.” and
2.) “If an act is punished by a law or ordinance, conviction or
acquittal in either shall constitute a bar to another prosecution
for the same act.”
27
MALLARI vs. PEOPLE
168 SCRA 422
HELD: “The rule against double jeopardy protects the
accused not against the peril of second punishment but against
being tried for the same offense. Without the safeguard this rule
establishes in favor of the accused, his fortune, safety and peace
of mind would be entirely at the mercy of the complaining
witness who might repeat his accusation as often as it is
dismissed by the court and whenever he might see fit, subject
to no other limitation or restriction than his will and pleasure.
The accused would never be free from the cruel and constant
menace of a never ending charge, which the malice of a
complaining witness might hold indefinitely suspended over his
head.”
Let’s go to the double jeopardy rule.
Q: Bar Question: What are the requisites of double jeopardy?
A: The SC tried to compressed that 2 paragraphs (of Section 7) in only 3
sentences in the case of
PEOPLE vs. BOCAR (138 SCRA 166) reiterated in
PANGAN vs. PEOPLE (155 SCRA 45)
HELD: To raise the defense of double jeopardy, three (3)
requisites must be present:
1.) The first jeopardy must have been attached prior
to the second;
2.) The first jeopardy must be validly terminated; and
3.) The second jeopardy must be for the same offense
as that of the first.
Q: When is a complaint or information valid within the meaning of the
double jeopardy rule?
A: The requisites are:
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
1. if it charges an offense; (People vs. Austria, 94 Phil. 897)
2. if it is filed by a person or officer legally authorized to do so.
(People vs. Kho, 97 Phil. 825)
There is no double jeopardy for the following reasons:
1. The dismissal of the first information was on motion of the
accused. Therefore, it was a dismissal with his express consent.
Diyan palang, tumba ka na!
2. The accused moved to quash the first information on the ground
that it did not charge an offense. Therefore, it was not a valid
information. So, the accused was never in jeopardy. (People vs.
Reyes, 98 Phil. 646)
The accused was never in jeopardy because the first information was filed
before the wrong court. There was no danger of being convicted based on
the case filed.
Q: In what instances may the accused invoke the protection of double
jeopardy?
A: In the following:
1.) when the accused had been previously convicted;
2.) when the accused had been previously acquitted; and
3.) when the case against the accused had been dismissed or
otherwise terminated without his express consent.
HELD: “The mere filing of two (2) informations charging
the same offense is not an appropriate basis for the invocation
of double jeopardy since the first jeopardy has not yet set in by
a previous conviction, acquittal or termination of the case
without the consent of the accused.”
Q: What is the difference between acquittal and dismissal of the case?
A: Generally, dismissal is not on the merits. But there are dismissals
which are classified as acquittal, like demurrer to evidence, or dismissal
because of the violation of the right of the accused to speedy trial.
In the same manner, for double jeopardy to attach, the law says, the case
must have been dismissed without your express consent. So, as a general
rule, when the accused himself files a motion to dismiss, he cannot invoke
28
double jeopardy because he himself intended the dismissal of his case; it is
with his express consent.
HELD: YES, there is double jeopardy. When you say express consent,
the consent must be categorical, clear. You cannot infer that by simply
asking for reinvestigation. You cannot infer that there is express consent;
that is not within the concept.
“Express consent has been defined as that which is directly given either viva
voce or in writing. It is a positive, direct, unequivocal consent requiring no
inference or implication to supply its meaning.
One last point. According to the law, if a case is dismissed without your
express consent, that could be a basis for double jeopardy. HOWEVER,
jurisprudence says, an order dismissing a case will NOT constitute double
jeopardy if the order of dismissal is NULL and VOID. Meaning, an order of
dismissal of a case will constitute double jeopardy on the assumption that the
order of dismissal was a valid order of dismissal.
Q: What is the usual reason why an order of dismissal is void?
A: The usual reason is when the prosecution was deprived of due process.
There was no double jeopardy because the order of the trial court
dismissing the physical injury case is wrong. It was a void order because
what the judge should have done is to continue trying the case even if
there was an error in the offense charged. So, if the accused would be
convicted, it is for physical injuries. In other words, you cannot order
dismissal and then re-file the case for frustrated murder. Because the
order dismissal is void, there is no double jeopardy.
HELD: NONE. “The erroneous dismissal order was issued capriciously
and arbitrarily; it unquestionably deprived the State of a fair opportunity
to present and prove its case. Thus, its right to due process was violated.
The said order is null and void and hence, cannot be pleaded to bar a re-
opening of the case on the ground of double jeopardy. Consequently, the
first jeopardy was not terminated and no second jeopardy threatened the
accused.”
That is a demonstration of the rule that when the order of dismissal is
null and void, you cannot plead double jeopardy.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Assuming the accused has already been convicted, acquitted or the case
is dismissed without his express consent, and all the requisites of double
jeopardy are present, the accused cannot be convicted for:
1. for the same offense; or
2. for an attempt to commit the same offense. [If you are convicted
or acquitted for a consummated offense, you cannot be charged
or convicted or acquitted for the lesser stage;] or
3. for frustration or attempt thereof; [The acquittal, conviction or
dismissal of the consummated crimes carries automatically the
frustrated or attempted stage of the same crime.] or
4. for any other offense which necessarily includes or is
necessarily included in the offense charged in the former
complaint.
Q: While in a public place, Maya fired a machine gun, thereby causing
panic and physical injuries to certain persons. She was charged with serious
physical injuries through reckless imprudence for firing the gun in public.
Subsequently, she was charged with serious public disturbance in a public
place. Is there double jeopardy?
A. NONE. While there was only a single act, two distinct offenses
resulted therefrom namely: (1) physical injuries which is a crime against
persons, and (2) public disturbance which is a crime against public peace and
order. (People vs. Bacolod, 89 Phil. 621)
Q: Accused was caught fishing with explosives. He was first prosecuted
for illegal fishing and subsequently, for illegal possession of explosives. Is
there DOUBLE JEOPARDY?
A: NONE. These are two (2) distinct offenses, the same being punished
by two different laws. There is a law for illegal fishing and another for illegal
possession of explosives. (People vs. Tinamisan, L- 4081, January 29, 1952)
Q: A complaint for adultery was filed against Miriam and Cholo
covering the period from the year 1946 to March 14, 1947. Pleading guilty,
the two were accordingly sentenced. On September 17, 1948, a second
complaint for adultery was filed against Miriam and Cholo covering the
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
jeopardy. Is there double jeopardy?
29
A: NONE. Adultery is a crime of result and not of tendency; it is an
instantaneous crime which is consummated at the moment of the carnal
union. Each sexual intercourse constitutes a crime of adultery, so that there
may be as many complaints for adultery as there are adulterous acts
committed. It is only one relationship but every carnal act is one crime.
(People vs. Zapata, 88 Phil. 688)
Q: An accused stole a revolver, tinago niya. It turned out to be
unlicensed. He was first prosecuted for theft of firearm and he was convicted.
He was subsequently prosecuted for illegal possession of firearm. Is there
double jeopardy?
A: NONE. The offenses are different. Theft is consummated upon the
taking, while illegal possession involves not only the taking but also the
possession and intent to use the firearm.
There are similar elements between Consented Abduction and Qualified
Seduction,
NIERRA vs. DACUYCUY
181 SCRA 1
FACTS: A check bounced. Two cases were filed: (1)
Estafa, under Article 315, RPC, and (2) BP 22. Is there
DOUBLE JEOPARDY?
HELD: NONE. The two crimes are distinct. While, in
filing of the two sets of information may refer to identical acts,
the prosecution cannot be limited to one offense because a
single criminal act may give rise to a multiplicity of offenses
with different elements. Prosecution for the same act is not
prohibited. What is forbidden is prosecution for the same
offense.
However under the Constitution, if the same act is punished
by a national law and an ordinance, iba na yan! Conviction or
acquittal in either one will constitute double jeopardy – that is
the exception. But, if you are violating two national laws, e.g.
BP 22 and Estafa, then there is no double jeopardy.
Q: Give examples of the rule mentioned above.
A: The following:
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
1. Mr. Cadungog stole two (2) fighting cocks in the same place.
He was prosecuted for stealing one cock. He cannot be
prosecuted anymore for stealing the other cock. Although there
are two acts of taking but there is only one criminal intent – that
is where double jeopardy will arise. (People vs. De Leon);
2. A person was charged with illegal importation of blasting caps
– a device for preparing explosives – cannot be subsequently
prosecuted for illegal possession of the same, for there can
hardly be importation without possession. (People vs. Elkanish,
90 Phil. 53);
3. A person charged with reckless driving under the LTO Law
cannot be subsequently charged with damage to property
through reckless imprudence because reckless driving is the
essential element of both offenses. (People vs. Diaz, 94 Phil.
714; People vs. Belga, 100 Phil. 996);
4. A person convicted of illegal possession of opium cannot be
subsequently prosecuted for illegal possession of opium pipe
found together with the opium. (U.S. vs. Pho Chi, 20 Phil. 104);
Possession of two or more unlicensed firearms in one place constitutes
but one offense so that conviction for illegal possession of one firearm is
a bar to a subsequent prosecution for possession of the other or others.
(U.S. vs. Gustilo, 19 Phil. 208)
HELD: The prosecution is wrong. In the light of the
absorption doctrine, the prosecution must fail. All crimes
which are mere components of rebellion or are committed in
furtherance thereof are absorbed in rebellion. “The theory of
absorption in rebellion cases must not confine itself to common
crimes but also to offenses under special laws which are
perpetrated in furtherance of the political offense.” And yet, the
two crimes are punishable by two different statutes.
Technically, they are not the same offense and yet one absorbs
the other because when you are in conspiracy with the rebels,
necessarily you harbor each other. You cannot be expected to
30
be a traitor to each other. So, how can you separate one crime
from the others?
“The law here seeks to prevent harassment of an accused person by
multiple prosecutions for offenses which though different from one
another are nonetheless each constituted by a common set or overlapping
sets of technical elements.
EXCEPTIONS TO THE DOUBLE JEOPARDY RULE
Q: What are the exceptions to the double jeopardy rule?
A: There are three (3) exceptions, under Section 7:
1. the graver offense developed due to supervening facts
arising from the same act or omission constituting the
former charge; (Section 7 [a])
2. the facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information;
(Section 7 [b]) or
3. the plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party except as provided in section 1(f) of
Rule 116. (Section 7[c])
Under the Melo doctrine, there is no double jeopardy because of the
supervening fact of death of the victim arising from the same act or omission
constituting the former charge – the graver offense developed due to the
supervening fact.
The Melo doctrine does not apply there because you cannot say that the
death of the victim supervenes after the arraignment – even before the
arraignment, the victim was already dead. The crime of consummated
homicide was already in existence.
So even if the graver offense was already existing before the arraignment but
it became known only after the plea, there is no more double jeopardy. This
amendment created another exception not covered by the Melo doctrine.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: Under the new rules there is now a deadline. The case is provisionally
dismissed, up to when?
A: MTC cases – within one (1) year to revive.
RTC cases – within two (2) years to revive.
Rule 119
Paragraph [e] refers to “trial in reverse.” The best example is when the
accused raises self-defense. The burden of proof is automatically shifted to
the accused. But this should be included during the pre-trial as provided under
Rule 118, Section 1 [e]:
The grounds are almost identical. This is deposition actually. Only, it is
called conditional examination. That is the term used here.
Take note, connect this with Section 1[f], Rule 115 – rights of the
accused. Section 12 is an exception to the right to confront and cross-examine
because you cannot insist during the trial to confront and cross-examine the
witness under Rule 115 Section 1[f] when we was already examined under
Section 12.
Consolidation in criminal cases is only for the purpose of joint trial lang
and you cannot have one information charging more than one offense.
State witness
HE DOES NOT APPEAR TO BE THE MOST GUILTY. And it is not
the same with HE IS THE LEAST GUILTY.
HELD: YES. When you say “he does not appear to be the
most guilty”, you do not apply the rule on conspiracy. But you
apply the rule on individual acts. In reality, who is more guilty?
The one who really shot the victim or the one who is just behind
the driver? The reality is, the most guilty is the one who shot,
although for purposes of the RPC both of you are co-principal.
So, you look at it that way. Do not apply the principle of the act-
of-the-one-is-the-act-of-all. You consider the most guilty in
terms of the participation.
31
“By ‘most guilty’ means the highest degree of culpability
in terms of participation in the commission of the offense and
not the severity of the penalty imposed. While all the accused
maybe given the same penalty but by reason of culpability one
may be least guilty if we take into account his degree of
participation in the perpetuation of the offense.”
Q: Generally, when the fiscal, after criminal investigation, believes that
one of them can be a state witness, therefore he will not include his name in
the information. Is it allowed?
A: NO, you have to include him first before he can be a state witness.
Let the court decide whether he will be a state witness or not. You cannot
discharge on your own. Remember under the Rules, the prosecutor is bound
to file the information against ALL those who appear to be responsible
including this guy who you want to use as state witness. But when you reach
the court, you file a motion to discharge and let the court who will do it.
And under the New Rules, there must be a HEARING to determine
whether there should be discharge or not. That’s why the rule said, “the trial
court must require the prosecution to present evidence and the sworn
statement of each proposed state witness at a hearing in support of the
discharge.” So, there must be an affidavit and there must be a hearing.
Hearing means, you have the opportunity to read what he will say and
the opportunity to object. Yan ang ibig sabihin ng hearing. Hindi
kailangan na he will be questioned personally in court.
Q: What happens if an accused who is the most guilty is erroneously
discharged – ang mga naiwan, yung mga pipitsugin? Is the erroneous
discharge valid? Is he deemed acquitted?
A: The SC said YES. Even if there is a mistake, he is now acquitted once
he is discharged. His testimony is admissible. In the case of
BOGO-MEDELLIN CO. vs. JUDGE PEDRO SON
209 SCRA 329 (May 27, 1992)
HELD: “Any witting or unwitting error of the prosecution
in asking for the discharge of an accused and of the trial court
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
in granting the petition for discharge, so long as no question of
jurisdiction is involved, would not deprive the discharged
accused of the acquittal that is specified in Section 10 of Rule
119 and of the constitutional guarantee against double
jeopardy. It is also relevant to note that the improper or
mistaken discharge of an accused would not affect his
competency as a witness or render inadmissible his
testimony.”
Q: Let’s go back to Evidence. He is the most guilty. His discharge was
wrong. Is his testimony admissible?
A: YES, because he can perceive and perceiving and he can make known
his perception to others. That is the only qualification. There is no violation
of marital disqualification or attorney-client confidentiality, etc. Wala man!
So you go back to Evidence. The testimony of the witness is qualified
although it might be polluted and he did it to save his game – that is not
enough to make his testimony inadmissible.
Q: One thing more, who can discharge the witness?
A: The court where the very case is pending. That’s the rule – the court
where the case is pending.
BAR QUESTION: What happens when an accused is discharged, and
after he is discharged, sabi ng prosecution, “Teka muna nagkamali ako, di
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 testify pero ayaw niya
WEBB vs. DE LEON
August 23, 1995
FACTS: State witness Alfaro admitted that she was with
them. She admitted kasama siyang nagpunta sa bahay ng mga
Vizconde. And then she was placed in the Witness Protection
Program and was used against Hubert Webb. And according to
Webb, the provision of the Witness Protection Act – which
authorizes the DOJ to place somebody in the Witness Protection
Program, and once he certifies that she is covered, the fiscal is
no longer allowed to file a case against her (state witness) – is
32
violative of the judicial prerogative to discharge a witness
because you jumping the gun on the court.
According to Webb, it should be the court that will
discharge and not the DOJ. The law is not valid because it is an
encroachment of a judicial prerogative. It is an intrusion for it
is only the court which has the power under the rules on
criminal procedure to discharge an accused as state witness.
ISSUE #1: Is Webb’s argument valid?
HELD: “Webb’s argument lacks appeal for it lies on the
faulty assumption that the decision whom to prosecute is a
judicial function, the sole prerogative of courts and beyond
executive and legislative interference. In truth, the prosecution
of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws
are faithfully executed. A necessary component of this power
to execute our laws is the right to prosecute their violators. The
right to prosecute vests the prosecutor with a wide range of
discretion — the discretion of whether, what and whom to
charge, the exercise of which depends on a smorgasbord of
factors which are best appreciated by prosecutors. We thus hold
that it is not constitutionally impermissible for Congress to
enact R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in the program
and who shall be granted immunity from prosecution.”
ISSUE #2: How do you reconcile this ruling with the rule
that only the court has the power to discharge?
HELD: Simple! In the Witness Protection Program, the
accused is NOT even accused in any case yet. Wala pa! But
once he is accused, you need the consent of the court to
discharge, that is kapag kasali na! Pero kung hindi pa kasali,
there is no need for the court’s consent to decide because that is
an executive function.
ISSUE #3: And why is the court’s consent necessary once
the accused is charged in court?
HELD: This is because the court has already acquired
jurisdiction over the person of the accused. So the SC said,
“Section 17 of Rule 119 does not support the proposition that
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
the power to choose who shall be a state witness is an inherent
judicial prerogative. Under this provision the court is given the
power to discharge as state witness only because it has already
acquired jurisdiction over the crime and the accused. The
discharge of an accused is part of the exercise of jurisdiction but
is not a recognition of an inherent judicial function.”
ISSUE #4: Is it wise for Congress to enact this law? Why
will Congress enact this kind of law that will determine that the
witness will not be included in the information?
HELD: YES. It is a wise legislation. “Moreover, the Rules
of Court have never been interpreted to be beyond change by
legislation designed to improve the administration of our justice
system. The Witness Protection Act is one of the much sought
penal reform laws to help government in its uphill fight against
crime, one certain cause of which is the reticence of witnesses
to testify.”
SEC. 19. When mistake has been made in charging the
proper offense. – When it becomes manifest at any time
before judgment that a mistake has been made in charging
the proper offense and the accused cannot be convicted of
the offense charged or any other offense necessarily
included therein, the accused shall not be discharged if
there appears good cause to detain him. In such case, the
court shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing of the
proper information. (11a)
You co-relate Section 19 with the last paragraph of Section 14, Rule 110:
If it appears at anytime before judgment that a mistake
has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the
accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance
at the trial.
33
QUESTION: how will you distinguish the two provisions? Kung
tingnan mo mukang pareho eh. But for academic purposes, there are
differences made by Justice Regalado in the 1994 case of GALVEZ VS. CA
(237 SCRA 685) Alam mo itong si Regalado, siya din ang nag-distinguish ng
amendment and substitution of information under Rule 110 which was asked
in the bar and thoroughly discussed in the case of TEEHANKEE VS.
MADAYAG. In the case of Galvez naman, gi-distinguish naman niya ang
Section 14 Rule 110 and Section 19 Rule 119.
Q: Distinguish Section 14 of Rule 110 and Section 19 of Rule 119.
A: For academic purposes, the following are the distinctions:
1. Rule 119 is the rule specifically governing the trial stage;
whereas
Rule 110 provides the procedural governance for the
prosecution of offenses;
2. Rule 119 is more directly and principally directed to the trial
court to invest it with the requisite authority to direct by
itself the dismissal and re-filing of the informations therein
contemplated; whereas
Rule 110 is directed to the prosecutor who can and should
institute remedial measures for the dismissal of the original
information and the re-filing of the correct one, otherwise
he would be recreant to his duties;
3. In Rule 119, evidence is necessarily being presented, hence the
trial court is now in a better position to conclude that
manifestly the accused cannot be convicted of the offense
charged or of one that it necessarily includes; whereas
In Rule 110, since no evidence has been presented at that stage,
the error would appear or be discoverable from a review of
the records of the preliminary investigation; and
4. In Rule 119, the permissible stage for effecting that substitution
is “at any time before judgment”; whereas
In Rule 110, it is sufficient that “it appears…that a mistake has
been made in charging the proper offense…” which
situation contemplates a longer time span, inclusive of the
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period from the filing of the information up to and before
trial.
So after I read the case of Galvez, I said Regalado has a very sharp mind.
Masyadong matalas and utak ba! A very small distinction, makita niya eh.
And it takes pain to analyze. That is the product of a sharp mind. But no
wonder because pag-kuha niya ng bar, 96.70% gud ang average niyan! He is
the highest for the record. Sabi nila si Marcos. Yes, but that is not official.
Istorya lang yun. Si Marcos nag oral examination before the SC pero
binabaan ang average. But on record, it is Regalado who is the highest in the
bar. Nobody has beaten that. Makita ninyo man ba sa decisions niya.
Masyadong matalas, very sharp!
SEC. 20. Appointment of acting prosecutor. – When a
prosecutor, his assistant or deputy is disqualified to act due
to any of the grounds stated in section 1 of Rule 137 or for
any other reason, the judge or the prosecutor shall
communicate with the Secretary of Justice in order that the
latter may appoint an acting prosecutor. (12a)
SEC. 21. Exclusion of the public. – The judge may,
motu proprio, exclude the public from the courtroom if the
evidence to be produced during the trial is offensive to
decency or public morals. He may also, on motion of the
accused, exclude the public from the trial except court
personnel and the counsel of the parties. (13a)
Section 21 is an exception to the rule found in Rule 115 about the right
of the accused to a public trial. There are some exceptions to that right. And
under Section 21:
1. the court may, moto propio, exclude the public from the courtroom
if the evidence to be produced during the trial is offensive to decency
or public morals. Normally this applies in trial for the crime of rape
or in crimes against chastity, where the nature of the evidence is such
that the public may want to go there because they only want to listen
to these sadiscious details of the testimony. The public can be
excluded. Only the lawyers, the parties are allowed inside. Yaan!
34
2. on motion of the accused, the court may exclude the public. That is
his right to speedy trial. Kung ayaw niya, e di okey lang!
Aside from the two exceptions, the other grounds where the public can
be excluded, based on American Jurisprudence are:
1. To prevent disorder;
2. To prevent embarrassment to a witness;
3. To limit attendance to seating capacity.
This is the very issue now. I’ve been reading current newspaper reports
that everybody is anticipating that the case against Erap will be filed in the
Sandiganbayan. The DOJ wants everything to be televised all over again.
They are filing a petition before the Supreme Court. There is a standing order
of the Supreme Court prohibiting it. It should not be televised because of what
happened in the Aquino libel case [Aquino vs. Beltran]. Because of that, ayaw
na ng SC na i-televised. It becomes a sarswela – show ba! – rather than a
public trial.
Now, they want to justify it on the ground that this involves public
interest so the SC should relax the rules. I cannot anticipate how the SC will
resolve the matter because everybody has gotten used to the impeachment
trial so everybody wants to hear what is happening, especially if the person
involved is Erap. Such a standing memorandum was not applied to the
impeachment trial because it was not a judicial trial but a political trial. It is
the Senate which controls the rules, not the courts. This is the difference. But
this case is before the Sandiganbayan which is a different story.
Because definitely many people would like to go there but how do you
get a seat them all in the Sandiganbayan? You will have to exclude hundreds,
if not thousands and allow only the entry of a few. But if it is televised, then
everybody can watch again.
SEC. 22. Consolidation of trials of related offenses. –
Charges for offenses founded on the same facts or forming
part of a series of offenses of similar character may be tried
jointly at the discretion of the court. (14a)
Do not confuse this consolidation here in Rule 119 with the consolidation
in Rule 111.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
In Rule 111, you are consolidating the criminal case and the civil case –
the civil case which is brought separately will be consolidated with the
criminal case. Here in Rule 119, you are consolidating two or more criminal
cases which are identical, founded on the same facts or forming part of the
same series of offense of similar character. This is similar to consolidation
in Rule 31 on civil cases.
But in civil cases, we can allow related cases to be filed together eh –
joinder of parties, which is not allowed in criminal cases. The only practice
allowed in criminal cases is consolidation. But there could be no such thing
as joinder of accused in one information.
Let’s go to Section 23 on Demurrer – one of the most important
provisions in Rule 119.
SEC. 23. Demurrer to evidence. – After the
prosecution rests its case, the court may dismiss the action
on the ground of insufficiency of evidence (1) on its own
initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused
with or without leave of court.
If the court denies the demurrer to evidence filed with
leave of court, the accused may adduce evidence in his
defense. When the demurrer to evidence is filed without
leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis of
the evidence for the prosecution. (15a)
The motion for leave of court to file demurrer to
evidence shall specifically state its grounds and shall be
filed within a non-extendible period of five (5) days after
the prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days
from its receipt.
If leave of court is granted, the accused shall file the
demurrer to evidence within a non-extendible period of ten
(10) days from notice. The prosecution may oppose the
demurrer to evidence within a similar period from its
receipt.
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The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment. (n)
Demurrer is a motion to dismiss. After the prosecution has rested its
case, based on the order of trial, the accused now presents his case. But sabi
ng accused, “Well, I will present evidence on the assumption that the
prosecution has proven prima facie the crime and my guilt. [meaning the
presumption of innocence has already been disputively rebutted ba!].” But
suppose the prosecution has not proven the facts or not proven the crime or
my guilt, “why will I present evidence? Why will I prove my innocence when
I’m still presumed innocent?” Yaan! Yan ang demurrer. The same thing in
civil cases – why will you prove your defense when the plaintiff failed to
prove his cause of action? So instead of presenting evidence, he will file a
demurrer. Actually it’s a motion to dismiss.
Now of course, it is now emphasized in paragraph 1 that a demurrer may
be filed with or without leave of court. Leave of court means before your
demurrer, you file muna a motion for permission to file the demurrer. The
court grants permission, you file the demurrer. You can still file the demurrer
even without the permission of the court. If you file demurrer with or without
leave and it is granted, then you have no problem because the accused will be
acquitted.
The problem is, if your demurrer is denied. Meaning, the court says that
there is sufficient evidence to prove at least the guilt of the accused. If the
demurrer was filed with prior leave of court and it is subsequently denied, the
accused is allowed to present evidence to prove his defense.
But if you filed the demurrer without prior leave of court and the
demurrer is denied, then you are already convicted because the accused has
forfeited his right to present evidence. It is practically equivalent to a waiver
of his right to present evidence. So conviction automatically follows. This is
what the rules say.
What is the rationale behind this? The 1997 case of
PEOPLE vs. TURINGAN
282 SCRA 424
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: “The rationale for the rule is that when the
accused moves for dismissal on the ground of insufficiency
of the prosecution evidence, he does so in the belief that
said evidence is insufficient to convict and, therefore, any
need for him to present any evidence is negated. It is said
that an accused cannot be allowed to wager on the outcome
of judicial proceedings by espousing inconsistent
viewpoints whenever dictated by convenience. The
purpose behind the rule is also to avoid the dilatory practice
of filing motions for dismissal as a demurrer to the
evidence of the prosecution and, after denial thereof, the
defense would then claim the right to present its evidence.”
So, there is an inconsistency in saying that the prosecution’s evidence is
not sufficient, and yet when it is denied, “OK, I will present evidence.” Ahh
di puwede yan! And many defense counsels in the past have filed demurrer
just to delay the presentation of evidence when there is no chance for said
demurrer to be granted.
BERNARDO vs. COURT OF APPEALS
278 SCRA 782
HELD: “The power to grant leave to the accused to file a
demurrer is addressed to the sound discretion of the trial court.
The purpose is to determine whether the accused in filing his
demurrer is merely stalling the proceedings. [Is he really serious
or is only delaying the proceedings?] Judicial action to grant
prior leave to file demurrer to evidence is discretionary upon
the trial court. But to allow the accused to present evidence after
he was denied prior leave to file demurrer is not
discretionary.”[Meaning, when you file a demurrer without
prior leave, you assume the risk eh because once your demurrer
is denied, you no longer have a chance to present evidence.]
“Once prior leave is denied and the accused still files his
demurrer to evidence or motion to dismiss, the court no longer
has discretion to allow the accused to present evidence. The
only recourse left for the court is to decide the case on the basis
of the evidence presented by the prosecution. And, unless there
is grave abuse thereof amounting to lack or excess of
jurisdiction, the trial court's denial of prior leave to file
36
demurrer to evidence or motion to dismiss may not be
disturbed. However, any judgment of conviction by a trial court
may still be elevated by the accused to the appellate court.”
[You cannot question the order of denial of prior leave, this is
discretionary but you can appeal the judgment of conviction
itself.]
BAR QUESTION: How do you distinguish the rule on demurrer of
evidence in civil cases with the rule of demurrer in criminal cases?
A: The following are the distinctions:
1. In civil cases when the demurrer is denied, the defendant will
now present his evidence to prove his defense because the
defendant does not waive his right to present in the event
the demurrer is denied; whereas
In criminal cases, if the demurrer of the accused is denied the
accused is no longer allowed to present evidence if he had
no prior leave;
2. In civil cases, if the defendant’s demurrer is granted and the case
is dismissed and the plaintiff appeals to the appellate court
and on appeal the court reverses the order of dismissal, the
appellate court renders judgment immediately against the
defendant. Goodbye! – talo na ang defendant. There is no
more remanding; whereas
In criminal cases, if the demurrer is granted, there is no more
appeal by the prosecution because the accused has already
been acquitted. Otherwise, there will be a case of double
jeopardy;
3. In civil cases, the court cannot on its own initiative, dismiss the
case after the plaintiff rests without any demurrer by the
defendant. There is no such thing as motu propio demurrer;
whereas
In criminal cases, the court may dismiss the action on its own
initiative after giving the prosecution the chance to present
its evidence.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Demurrer used to composed only of two paragraphs. Under the new
rules, there are three (3) new additional paragraphs. The additional
provisions are:
The motion for leave of court to file demurrer to
evidence shall specifically state its grounds and shall be
filed within a non-extendible period of five (5) days after
the prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days
from its receipt.
If leave of court is granted, the accused shall file the
demurrer to evidence within a non-extendible period of ten
(10) days from notice. The prosecution may oppose the
demurrer to evidence within a similar period from its
receipt.
The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment. (n)
These deadlines were not found before. If you want to file leave, pag-
rest, 5 days lang, you file a motion for leave. The prosecution may oppose the
leave of within 5 days. After the court grants leave, you file the demurrer
within 10 days lang. The obvious purpose here is not to delay the trial.
When the court denies the motion for leave or the demurrer itself, as a
rule, it is not reviewable. You cannot review it. The remedy is to go to trial
and if you are convicted, appeal on the judgment of conviction. But as a
general rule, when a demurrer is denied, you cannot go on certiorari. I’m not
saying that this is 100% but there are some instances when the court, based
on equity, allows it.
Take note that when you file a leave of court to file a demurrer, the
accused must specifically state the grounds.
The 1985 Rules just says you get prior leave. This is what I noticed here
among trial courts: after the prosecution rests, sometimes the defense 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 “Alright, leave
granted, file your demurrer.” Parang naging automatic ba! Pag-hingi mo ng
leave, bigay kaagad!
37
I was watching that and I do not seem to agree with that kind of set-up
and I had the opportunity once in a criminal case where I was the private
prosecutor where after we rested, the defense, in open court said, “Your
honor, we would like to ask permission for demurrer.” And the court said,
“Granted!”. I said “Your honor, this is not the correct procedure because he
doesn’t even say what are his grounds for demurrer. The court should not
grant the permission immediately without those grounds.” To my mind,
when you file a motion for leave, you must state the grounds to give the court
a synopsis or an idea of what you are going to raise so that the court will be
attracted to grant. The reason behind this leave is to put a stop to the old
practice. The old practice was of granting demurrer immediately and in most
cases the demurrer is really without merit. This is why this was placed in the
Rules of Court so that the court will weigh whether “ano ba? Pagbigyan ko
ba ito o hindi?” Otherwise, we would be going back to the old system.
And the judge told me, “Your arguments are sound, but the trouble is
there is nothing in the rules which support you so, we’ll just grant leave.”
Wala din. Of course, there was a leave, there was a demurrer, and I opposed
and it was denied. But ang issue ko, I’ve been harping on that point for so
long. You cannot just say leave, you must tell the court what you will raise.
Give us an idea so that the court will be convinced to grant leave. If the court
will deny the leave, you file it at your own risk.
Now, the 2000 Rules states, “The motion for leave of court to file
demurrer to evidence shall specifically state its grounds.” Hindi na puwede
yung “we intend to file a demurrer, may we ask for leave” without stating the
grounds. At least, sabi ko, I have been correct all along in advocating this.
So when I read this in the new rules, I said, “Ay salamat! Tama pala ako all
along!” Once you know the philosophy of the law, hindi ka man mawala ba!
You can always argue from that point.
SEC. 24. Reopening. – At any time before finality of
the judgment of conviction, the judge may, motu proprio
or upon motion, with hearing in either case, reopen the
proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within thirty (30) days
from the order granting it. (n)
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Section 24 is a new provision. The judge may motu propio or upon
motion reopen the proceedings.
Actually, reopening of trial is a remedy which is recognized but not
found in the rules. Even the rules on civil procedure, there are motions for
new trials but you cannot find a rule for the re-opening of trial. But the SC
has always recognized that there is such a remedy.
EXAMPLE: I will rest my case, the trial is finished and the next step is
the decision. But after you rest, you have additional evidence discovered for
the first time and therefore could not have been presented beforehand.
Q: What will you do? Will you file a motion for new trial based on the
newly discovered evidence?
A: NO, you cannot – wala pang decision! Motion for new trial based on
new evidence is proper only after a decision has been made and the same is
not yet final and executory.
Q: In the example, wala pang decision eh. What is the proper remedy?
A: The correct remedy is motion to reopen the trial because there is no
judgment yet.
Q: On what grounds?
A: Justice and equity. This is the only ground for re-opening because
there is no specific ground.
Q: Now can the court on its own, re-open a trial, civil or criminal?
A: YES. This has happened several times. The case has already been
submitted for trial, this happened to me several years ago. The court said
“before the court renders a decision, the court would like to conduct an ocular
inspection and re-enactment of the alleged crime in the place where the crime
was committed.” Motu propio, the court ordered the re-enactment. This is
an instance of re-opening the trial. This is allowed because this is an inherent
power of the court, if it really wants to find out the truth. You cannot find
any provision in the rules regulating that kind of remedy. This is allowed
without any specific rule except justice and equity.
For the first time, reopening of trial in a criminal case is now found in
Section 24 of the 2000 Rules. But there is something wrong here. In
reopening of trial, you do it before the case is decided. Dito naman, you do
38
it “at any time before the finality of the judgment of conviction.” Anong klase
ito?! How can this be? There is already a judgment of conviction and then,
you reopen?? I think the correct motion is a new trial.
I remember when Galvez was here to lecture on the Rules on Criminal
Procedure. He said that somebody in the Supreme Court nakialam dito eh.
The original draft was “anytime before judgment there can be re-opening
upon motu propio or motion.” But when the new rules came out, it said “at
any time before finality of the judgment of conviction.” – dinagdagan ba! The
person who changed it must have thought the committee had erred but the
change made it even worse. That’s why the committee wrote a letter to the
SC to amend this mistake.
Now, there are some special laws that are related to the subject of trial and
they are considered as part and parcel of the criminal procedure. I am
referring to RA 4908, RA 6033, RA 6034 and RA 6035. RA’s 6033, 6034
and 6035 are also known as the Laurel Laws because the author of these laws
is Senator Laurel in the 70’s.
RA 4908 – AN ACT REQUIRING JUDGES OF COURTS TO
SPEEDILY TRY CRIMINAL CASES WHEREIN THE
OFFENDED PARTY IS A PERSON ABOUT TO
DEPART FROM THE PHILIPPINES WITH NO
DEFINITE DATE OF RETURN
RA 6033 – AN ACT REQUIRING COURTS TO GIVE PREFERENCE
TO CRIMINAL CASES WHERE THE PARTY OR
PARTIES INVOLVE ARE INDIGENTS
RA 6034 – AN ACT PROVIDING TRANSPORTATION AND OTHER
ALLOWANCES FOR INDIGENT LITIGANTS.
RA 6035 – AN ACT REQUIRING STENOGRAPHERS TO GIVE
FREE TRANSCRIPT OF NOTES TO INDIGENT AND
LOW INCOME LITIGANTS AND PROVIDING A
PENALTY FOR THE VIOLATION THEREOF
Rule 120
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: “A strict compliance with the mandate of the said
provision is imperative in the writing of every decision.
Otherwise, the rule would simply a tool for speculations, which
this Court will not countenance specifically in criminal cases
involving the possible deprivation of human life.”
HELD: The order of dismissal was equivalent to an
acquittal but a judgment of acquittal under Rule 120 must be in
writing. The order dismissing the case was not in writing but
was dictated in open court. It was never reduced into writing.
What was reduced to writing was the second order which
revoked the first order. Since it was never in writing, there was
no judgment of acquittal. Therefore, there is no double
jeopardy.
“However, this order of dismissal must be written in the
official language, personally and directly prepared by the judge
and signed by him conformably with the provisions of Rule
120, section 2 of the Rules of Court. In the instant case, it is
very clear that the order was merely dictated in open court by
the trial judge. There is now showing that this verbal order of
dismissal was ever reduced to writing and duly signed by him.
Thus, it did not yet attain the effect of a judgment of acquittal,
so that it was still within the powers of the judge to set it aside
and enter another order, now in writing and duly signed by him,
reinstating the case.”
In case the judgment is of acquittal, it shall state
whether the evidence of the prosecution absolutely failed
to prove the guilt of the accused or merely failed to prove
his guilt beyond reasonable doubt. In either case, the
judgment shall determine if the act or omission from which
the civil liability might arise did not exist. (2a)
According to the 1985 Rules, if the accused is acquitted based on
reasonable doubt, the court may order the accused to satisfy civil liability
because the cause of action in the civil case is already proven although the
accused is acquitted. It is possible for the accused to be acquitted and yet is
found to be civilly liable based on the 85 Rules.
39
Q: Is the offense proven included in the offense charged or does the
offense proven includes the offense charged?
A: If YES, then apply Section 4. You convict the accused of the offense
proved which is included in the offense charged, or of the offense charged
which is included in the offense proved.
In that case, the case will not be dismissed. Just convict the accused of the
crime proven which is included in the crime charged. Such that if you are
charged with murder, you can be convicted for homicide.
Q: Suppose the accused is charged with homicide and what was proven is
murder. So it is the other way around. What is the correct procedure?
A: Convict him for the crime charged. Do not dismiss the case. Although
the crime proved (murder) includes that which is charged (homicide), a
person cannot be convicted of a more serious offense than that charged. The
accused can only be convicted for homicide and the qualifying circumstances
of murder should be treated only as an ordinary aggravating circumstances.
The same is true with theft and robbery. [c.f. discussions on Section 8, Rule
110]
Q: What is the difference between malversation and technical
malversation?
A: Although both crimes are committed by public officers, malversation
is punishable under Article 217 of the RPC, whereas, technical malversation
is not referred as such in the RPC. Technical malversation is denominated as
Illegal Use of Public Funds under Article 220 of the RPC.
HELD: YES, a person charged with an offense as principal maybe
convicted as an accessory because the greater responsibility includes the
lesser responsibility. Accessory is a lesser degree of participation.
HELD: NO. He cannot be convicted of malversation because there is no
similarity between these two crimes. “In malversation of public funds,
the offender misappropriates public funds for his own personal use or
allows any other person to take such public funds for the latter's personal
use. In technical malversation, the public officer applies public funds
under his administration not for his or another’s personal use, but to a
public use other than that for which the fund was appropriated by law or
ordinance.”
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
“Technical malversation is, therefore, not included in nor does it
necessarily include the crime of malversation of public funds charged in
the information.”
Q: If a person is charged with rape, can he be convicted of qualified
seduction? Is qualified seduction included in rape?
A: It seems that the elements are different. In rape, there is no consent in the
sexual intercourse. But in seduction, there is consent although there is abuse
of authority, relationship or there is deceit.
ISSUE: Can a person charged with a crime punishable under
a special law be found guilty instead of a felony in the RPC?
Can a crime under the RPC be considered as included in the
crime under a special law?
HELD: There is no such thing as attempted violation of the
Anti-Graft Act. The attempted, frustrated and consummated
stages only apply to felonies in the RPC. Under crimes
punishable by a special law, you only punish the consummated
stage. You do not punish the attempted and frustrated stages
unless the special law says so. Since there was no injury caused
to the government due to the time discovery, there was no
violation of the Anti-Graft Act.
However, they made false entries, thereby committing
falsification. Therefore, they can be convicted of falsification of
public or commercial documents.
HELD: YES. What appellants committed is the crime of
robbery with homicide, which is distinct from the offense
covered by P.D. 532 which punishes, among others,
indiscriminate highway robbery.
“Nonetheless, the designation of the crime in the
information as “highway robbery with homicide (Violation of
PD 532)” does not preclude conviction of the appellants of the
crime of robbery with homicide (Article 294 [1] of the RPC). In
the interpretation of an information, what controls is not the
designation but the description of the offense charged. The
crime of robbery with homicide is clearly alleged in the
information notwithstanding its erroneous caption. It is an
40
offense necessarily included in that with which they were
charged.”
Alright. Promulgation is where the accused is parusahan na or acquitted.
It consists of the reading of the decision in the presence of the accused. This
is one stage of the criminal proceeding where the presence of the accused is
generally required. The other instance is during the arraignment.
Q: Can the decision of RTC Branch 8 be promulgated before the judge of
RTC Branch 9?
A: YES, a decision rendered by one branch of a court may be promulgated
before another branch of the same court precisely because it is the same court
although of different branches. Section 6, reads: “The judgment is
promulgated xxx in the presence of xxx ANY JUDGE of the court in which it
was rendered.”
Q: In places where there is only one branch of the RTC, no other sala,
who promulgates the decision in case of the absence of the judge?
A: The clerk of court. Under Section 6, “When the judge is absent or
outside the province or city, the judgment may be promulgated by the CLERK
OF COURT.”
However, if the decision of the trial court convicting the accused changed the
nature of the offense from non-bailable to bailable, the application for bail
can only be filed with and resolved by the appellate court.
Q: Is there such a thing as promulgation by proxy?
A: YES. A decision may be promulgated even without the presence of the
accused but ONLY if the conviction is for a light offense. Generally,
promulgation is by personal appearance. However under the Section 6, “if
the conviction is for a light offense, the judgment may be pronounced in the
presence of his COUNSEL or REPRESENTATIVE.”
Q: Is the presence of the complainant required during the
promulgation?
A: NO. There is no rule requiring a judge to notify the complainant of
the date of promulgation of judgment in criminal cases. What the Rules of
Court particularly Section 6, Rule 120 requires is that the promulgation be
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
made in the presence of the accused. (Ramirez vs. Macandog, 144 SCRA
462)
Q: Is the presence of the counsel of the accused required during the
promulgation?
A: NO. The Rules of Court does not require the presence of counsel for
the validity of the promulgation. The accused is not required to be present at
the promulgation if the conviction is for light offense, in which case, his
counsel or representative may appear in his behalf. But definitely, in any case,
the promulgation is valid even the counsel does not appear thereat. (Pangilano
vs. Nuevas, 152 SCRA 158)
Q: What happens if the accused was tried in absentia? Or before the
promulgation he escaped or jumped bail?
A: Under Section 6, the proper clerk of court shall give notice to the
accused personally or through his bondsman or warden and counsel, requiring
him to be present at the promulgation of the decision. If the accused was tried
in absentia because he jumped bail or escaped from prison, the notice to him
shall be served at his last known address.
Q: May judgement of conviction be modified or set aside?
A: YES, for as long as:
a. the judgement has not yet become final, or
b. appeal has not been perfected
Q: When does the judgement in a criminal case become final?
A: It DEPENDS:
a. If it is a judgement of ACQUITTAL – immediately executory
after promulgation of judgment because it cannot be changed
anymore.
b. If it is a judgment for CONVICTION:
1. After the lapse of the period for perfecting an appeal (2nd
part of Section 7). So 15 days generally. EXCEPT when
the DEATH penalty is imposed. That is now inserted in the
new Rules because even if the accused will not appeal,
there is an automatic review. So the rule that when the
period to appeal has expired, the judgment will become
final, will NOT apply in death penalty cases. However, the
lapse of the period to appeal and no appeal is perfected, is
41
not the only instance where the judgment of conviction
becomes final;
2. Even within the period to appeal, that is when the sentence
has been partially or totally satisfied or served. For
example Charles has been sentenced to 10 days of Arresto
Menor and he has already served it. Or Charles has been
sentenced to pay a fine of P100 and he pays it. Wala na!
Final na iyan! Because he has decided to serve his sentence,
it has become final. We do not have to wait for 15 days;
3. When the accused has waived in writing his right to appeal;
4. When after conviction, the accused applies for probation
(this is based on the probation law). When Charles applies
for probation, he is waiving his right to appeal and he is
accepting the judgement of conviction.
Rule 121
Q: What is the effect of the filing of a motion for new trial on the double
jeopardy rule?
A: An accused who files a motion for new trial WAIVES the protection of
double jeopardy, so that if the motion is granted, he can be tried and convicted
of the graver offense charged in the complaint or information.
Q: Compare and Distinguish New Trial from Modification of Judgment.
A: Similarity: Both may be resorted to before the judgment of conviction
becomes final.
Distinctions:
1. In new trial, by the very nature of its purpose and what is to be
done, both parties intervene; whereas, in modification of
judgment, the court moto propio may act provided the consent
of the accused is required;
In new trial, if the motion is granted, the original judgment is vacated and a
new judgement shall be rendered; whereas, in modification of judgment, the
integrity of the decision already rendered is unaffected, except for the
proposed changes, although the entire decision may have to be rewritten.
The language of the 3 provisions are identical, motion for: (1) reopening of
trial; (2) modification of judgment of conviction; and (3) new trial or
reconsideration
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: Is there such a thing as pro forma motion for new trial or
reconsideration in criminal cases? Where your motion is obviously
dilatory? Your grounds are too general, too vague, too ambiguous? No
affidavit of merits? And therefore if it is denied, there is no more right to
appeal by the accused applying the pro forma rule?
A: The SC ruled in the past that the pro forma rule in civil cases DOES
NOT apply to criminal cases. In criminal cases, a general statement of the
grounds for new trial is sufficient. (People vs. Colmenares, 57 O.G. 3714)
Even if you do not go into details because you expect your motion to be
denied, but the filing will still interrupt the period. It is too harsh if the
remedy of appeal will be removed from the accused simply because of a
motion for new trial which is not prepared properly. So the pro forma rule
will not apply in criminal cases. The filing of a motion for new trial or
reconsideration will always interrupt the running of the period to appeal.
Q: Alright, what are the grounds for new trial?
A: Section 2:
42
SEC. 2. Grounds for a new trial. – The court shall
grant a new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed
during the trial;
(b) That new and material evidence has been
discovered which the accused could not with reasonable
diligence have discovered and produced at the trial and
which if introduced and admitted would probably change
the judgment.
Newly discovered evidence; this is similar to civil cases, newly discovered
evidence. The requisites are the same:
a.) discovered after trial;
b.) it could not have been discovered before trial even with the
use of reasonable diligence
c.) and if introduced and admitted would probably change the
decision
Q: May a new trial be granted on the ground of loss of stenographic
notes?
A: NO. The loss of stenographic notes after trial is NOT such an
irregularity as would justify a new trial. The remedy of the accused is to have
the missing evidence reconstituted. (People vs. Castelo, L-10774, February
16, 1961)
Q: Is there an EXCEPTION?
A: YES, when it is made to appear that there is no evidence sustaining
the judgment of conviction other than the testimony of the recanting witness.
(U.S. vs. Dacir, 26 Phil. 503) When aside from the testimonies of the
retracting witness or witnesses there is no other evidence to support a
judgment of conviction, a new trial may be granted. (People vs. Clamor, July
1, 1991)
GOMEZ vs. IAC
April 9, 1985
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: “It is conceded that the State has the sovereign right
to prosecute criminal offenses under the full control of the fiscal
and that the dismissal of criminal cases by the execution of an
affidavit of desistance by the complainant is not looked upon
with favor. However, it is also true that an affidavit of
desistance may create serious doubts as to the liability of the
accused. At the very least, it calls for a second hard look at the
records of the case and the basis for the judgment of conviction.
Jurisprudence on the effect of desistance notwithstanding, the
affidavit should not be peremptorily dismissed as a useless
scrap of paper.”
PEOPLE vs. GARCIA
288 SCRA 382 [1998]
HELD: “To warrant a new trial, the affidavit of desistance
must constitute a recantation and not a mere withdrawal from
the prosecution of the case. The complainant's affidavit of
desistance did not constitute a recantation, because she did not
deny the truth of her complaint but merely sought to be allowed
to withdraw and discontinue the case because she wished to
start life anew and live normally again. She never absolved or
exculpated the accused. In other words, a recantation of a prior
statement or testimony must necessarily renounce the said
statement or testimony and withdraw it formally and publicly.”
Q: Who will testify?
A: Eh di si Thaddeus! – yung complainant, who will be asked: “During
the trial this is what you said, what are you saying now?” As he answers,
Thaddeus must say under oath that he lied before and this is the truth…
[amen!]
Q: After that, can the court say that the accused is now acquitted
because now Thaddeus is telling the truth when before Thaddeus was not
telling the truth? Is this what will happen?
A: The SC said NO. The only thing that will happen is that a new trial
will be granted. But this does not mean that the accused shall be acquitted.
When we say new trial, this means that the court should hear the testimony
of the complainant again. BUT after testifying, the court may say, “You say
you were lying before and you are telling the truth now, but the court does
43
not believe you because as far as the court is concerned, you were telling the
truth before and you are lying now.” Therefore the conviction stands. That is
possible.
PEOPLE vs. CLAMOR
July 01, 1991
HELD: “Where a witness testifies for the prosecution and
retracts his or her testimony and subsequently testifies for the
defense, the test in determining which testimony to believe is
one of comparison coupled with the application of the general
rules in evidence.” So you apply what you know about
evidence, about credibility, appreciation of evidence.
“The rule should be that a testimony solemnly given in
court should not be lightly set aside and that before this can be
done, both the previous testimony and the subsequent one be
carefully compared, the circumstances under which each given
carefully scrutinized, the reasons or motives for the change
carefully scrutinized — in other words, all the expedients
devised by man to determine the credibility of witnesses should
be utilized to determine which of the contradictory testimonies
represents the truth.”
Q: Is there an instance when a MOTION for reconsideration or new trial
is PROHIBITED?
A: YES – when the case is tried in the MTC under the Summary Rules.
Q: Will there be really a trial de novo or will there just be a reopening
of the trial to introduce the newly discovered evidence?
A: Under paragraph [c] which we already discussed: “In all cases, when
the court grants new trial or reconsideration, the original judgment shall be
set aside or vacated and a new judgment rendered accordingly.”
Q: Suppose after new trial, the court still finds the accused guilty?
A: There will be another judgment but definitely the original judgment
is already set aside. When the court grants the motion, wala na iyon!
Regardless of whether the new judgment will be the same or not.
Rule 122:
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
Q: What happens if there are 2 cases which are interrelated or the charges
are interrelated for they arose from the same incident? Like for example: One
case is penalized by fine and another is penalized by 4 years imprisonment.
Once crime is covered by Summary Rules, the other is covered by the regular
rule. Can they be mixed?
A: Where there is a joint trial of two criminal cases, one under the
summary rules and the other one is under the regular rules, we follow the
regular rules. Under the last paragraph of Section of the Summary Rules,
“These rules shall not apply to a criminal case where the offense charged is
necessarily related to another criminal case subject to another procedure.”
One of the important principles to remember here is the case of Zaldivia
and Reodica on when is the running of period of prescription for a crime
deemed interrupted. The ruling in ZALDIVIA vs. REYES (211 SCRA 277)
created the impression that as a general rule, the filing of the case in the
prosecutor’s office is sufficient to interrupt the running of the prescriptive
period except when the case is covered by the Rules on Summary Procedure.
If it is any crime, you file it in the fiscal’s office, the running of the
prescriptive period is interrupted. But if it is covered by the Summary Rules,
the period continues. It must be the filing of the case in court which will
interrupt. That is the ruling in Zaldivia.
That impression in Zaldivia was clarified in the 1998 case of REODICA
vs. CA (292 SCRA 87) where the SC said that even if the case is covered by
the Summary Rules for as long as it is a felony under the RPC, the filing in
the fiscal’s office is sufficient to interrupt the running of the prescriptive
period.
But according to Zaldivia, if it is covered by the Summary rules, the
filing in the fiscal’s office will not interrupt. But according to the SC in the
case of Reodica, NO! because Zaldivia involves a violation of municipal or
city ordinance. Therefore, if it is a violation of an ordinance, the filing in the
fiscal’s office does not interrupt the running of the prescriptive period
because the law on prescription for crimes punishable by a special law is
governed not by the RPC, but by Act 3326 which is very clear that it is the
filing in court which will interrupt the prescriptive period for crimes
punishable by special laws. Pero kapag felony, we will still apply the general
rule that the filing in the fiscal’s office is sufficient to interrupt even if such
felony is covered by the Summary Rules.
44
Q: How is a case covered by the Summary Rules commenced?
A: Affidavit is included, affidavit of complainant, his witnesses shall be
included and then the court may dismiss the case outright under Section 12
[a] and [b], otherwise if there is a case, the accused will be sent a copy of the
affidavit and then he is given 10 days to submit also his own affidavit.
Then there will be an arraignment under Section 13; Preliminary
conference under Section 14. And Section 15 is important – during the trial,
there is NO DIRECT EXAMINATION. The affidavit already serves as your
direct testimony. So puro cross-examination na lang. Diretso! So, it is
shortened ‘no? Rather than asking the witness one by one to tell the story in
the affidavit, yang affidavit na mismo. That will serve as the direct testimony.
Iko-cross-examine na lang.
But there is an important rule here – a witness who has not submitted any
affidavit cannot testify. So in order to qualify as a witness, you must have
submitted an affidavit beforehand. The EXCEPTION is the 2nd paragraph of
Section 15 – except when the witness is a rebuttal witness or a surrebuttal
witness. This is because how can you submit a rebuttal affidavit ahead? You
do not even know what to rebut
HELD: When the doctor is called upon to testify based on
the medical certificate, the rule as to the prior submission of
affidavit does not apply. This also applies to the Register of
Deeds or the Provincial Assessors in connection with official
documents issued by their office.
Now, if you have a surprise witness and you want to introduce him
because his testimony is very important, the remedy is to file a motion to
present additional evidence. The last paragraph of Section 15 gives you the
authority to manifest during the preliminary conference that you are
presenting other witnesses, and you are now submitting their affidavits in
order that you will not be barred from presenting them.
Section 16 is also important. As a rule, there is no warrant of arrest if you
are tried under the Summary Rules. You are just notified about the case.
However, if you are notified about the case and you will not appear, that is
the time when you will be arrested because of “except for failure to appear
whenever required” in which case you must post bail if you are under arrest
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
or on recognizance by a responsible citizen acceptable to the court. This is
one of the cases where recognizance is allowed. But for as long as you appear
in court, there is no warrant to be issued.
Q: Now, what are the PROHIBITED documents, motions, or pleadings
under the Summary Rules?
A: The following (Under Section 19):
1.) Motion to quash except when your ground is
a.) lack of jurisdiction over the subject matter; or
b.) failure to comply with the Barangay Conciliation;
2.) Motion for bill of particulars;
3.) Motion for new trial, or for reconsideration of a judgment, or
for reopening of trial; your remedy here is appeal;
4.) Petition for relief from judgment;
5.) Motion for extension of time to file an affidavit;
6.) Memoranda;
7.) Petition for certiorari, mandamus, or prohibition against any
interlocutory orders issued by the court;
8.) Motion to declare the defendant in default;
9.) Dilatory motions postponements;
10.) Reply;
11.) Third-party complaints;
12.) Interventions;
Q: Now, who prepares the appellee’s brief?
A: The Solicitor General.
If the appellant will not file his appellant’s brief, the case is dismissed – same
in civil cases – except where the appellant is represented by counsel de oficio
because the counsel de oficio is really a court-appointed lawyer.
Kung nag-appeal siya, and then nag-layas siya, the appeal will be dismissed,
lalo na kung di siya nag-appeal! You will also lose your right to appeal. The
reason according to the SC, once the accused escaped from prison or
confinement or jumped bail, he loses his standing in court and unless he
surrenders or submits to the jurisdiction of the court, he is deemed to have
waived any right to seek relief from the court.
45
ISSUE: Will the SC proceed to automatically review the death sentence
of an accused who was tried in absentia and remained at large up to the
present time? Or even if he appealed, and while the appeal is pending, he
escaped?
Q: What should the CA do?
A: The CA should still decide and lay down the facts and the law as if it
is the SC. And then the CA should really impose the death penalty or
reclusion perpetua. But it should not enter judgment. After imposing death
or perpetua, itapon sa SC, “Please review our work and find out whether we
are correct.” Yaan!
Automatically, the CA will not enter judgment but should elevate the
case
Rule 125:
ISSUE: Can you file a motion for new trial of a criminal case before the
SC on the ground of newly discovered evidence?
In the past, there seems to be conflicting rulings on that issue. Like for
example, if you go to the 1965 case of GODUCO VS. CA (14 SCRA 282),
the SC ruled that the SC is not authorized to entertain a motion for
reconsideration and/or new trial on the ground of newly discovered evidence
because of the doctrine that the SC is not a trier of facts – only questions of
law are supposed to be raised before the SC.
However, the Goduco ruling seems to be relaxed in other cases
subsequently to the case of Goduco. In the case of HELMUTH, JR. VS.
PEOPLE (112 SCRA 573 [1982]), and in PEOPLE VS. AMPARADO (156
SCRA 712 [1987]), the SC allowed the motion for new trial based on newly
discovered evidence.
In 1995, that issue came out again in the case of
CUENCA vs. COURT OF APPEALS
250 SCRA 485
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: Although in “Goduco vs. CA” (14 SCRA 282
[1965]), this Court ruled that it is not authorized to entertain a
motion for reconsideration and/or new trial predicated on
allegedly newly discovered evidence, the rule now appears to
have been relaxed, if not abandoned, in subsequent cases like
“Helmuth, Jr. vs. People” and “People vs. Amparado.”
“In both cases, the Court, opting to brush aside
technicalities and despite the opposition of the Solicitor
General, granted new trial to the convicted accused concerned
on the basis of proposed testimonies or affidavits of persons
which the Court considered as newly discovered and probably
sufficient evidence to reverse the judgment of conviction.”
Rule 126 :
MALALOAN vs. COURT OF APPEALS
232 SCRA 249
Q: Can a search warrant issued by let’s say, a Davao City
court be enforced in any other place outside of Davao City?
A: YES, because a search warrant is merely a court process.
It should not be confused with the correct venue for the filing of
the case. But here, there is no case. We are only talking about
search and seizure which is a mere court process. It has nothing
to do with the filing of a criminal case. So you cannot limit the
power of the search warrant only within the place where the
crime was committed.
Furthermore, search warrants are usually applied by law
enforcement officers and it is too much to require peace officers
to know in advance where is the probable venue of the criminal
case. And based on the interim rules, there is a statement there
that “xxx writs of certiorari, prohibition, habeas corpus, etc…
of the RTC are enforceable only within the region. All other
writs or processes are enforceable throughout the country.”
And a search warrant fall under the general provision “all other
writs xxx”.
46
Take note that only personal property may be seized pursuant to a search
warrant. lets us connect this with Section 4:
because “one search warrant, one offense.” So there must be three different
search warrants. Otherwise the search warrant is a general warrant which is
prohibited under the Constitution.
And one of the leading case regarding on that issue is the case of
STONEHIILL vs. DIOKNO
BURGOS, SR. vs. CHIEF OF STAFF
December 26, 1984 (134 SCRA)
FACTS: A search warrant was issued to raid the editorial
offices of Metropolitan Mail and We Forum (predecessor of
Malaya) somewhere in Quezon City. What were going to be
confiscated were materials, pamphlets, printing machines to
stop the paper from publishing on the alleged violation of Anti-
Subversion Act (PD 885) during the time of Marcos. Burgos
challenged the validity of the search warrant before the SC.
ISSUE #1: According to Burgos, “You cannot seize those
things because I am not the owner of those. I am just leasing
them.” Can you only seize from somebody objects which he
owned?
HELD: NO, because there is no provision in the law to that
effect. And under Section 3, you can seize “stolen or embezzled
and other proceeds, or fruits of the offense.” For example, you
can issue a warrant to seize stolen property from a thief or
robber. Is the thief or robber the owner the owner of those stolen
property? Of course not! So, there is no requirement that you
can only seize it from its owner. Talo si Burgos sa issue na yan.
ISSUE #2: According to Burgos, you cannot seize the
printing equipments because under the law you can only seize
personal property. These printing machines are all attached to
the building and under the law on Property, when a machinery
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
is attached to the immovable, it becomes immovable or real
property also. And you cannot seize a real property.
HELD: You are correct BUT there is an EXCEPTION – if
the machine is attached by somebody who is not the owner of
the building, then the machine is still a movable property. So,
tinamaan na naman siya dun.
ISSUE #3: Was the search warrant a general warrant?
HELD: YES. What were seized were paraphernalia,
pamphlets, printing machines, etc. which, according to the
search warrant, were used in committing the crime of
subversion under PD 885. So there is only one law violated
unlike in the case of Stonehill na marami.
But sabi ng SC, the search warrant is a general warrant. It
is true that there is only one law violated but there are many
sections in the Decree. You must allege the section violated,
otherwise it becomes a general warrant.
So if you just say that the search warrant is for violation of a law, then
that is a general warrant. You must point out the section which was allegedly
violated. So in the case of Burgos, the search warrant was declared as a
general warrant inspite of the fact that only one law was violated.
HELD: Olaes is correct BUT there is only once section in marijuana. So
what are we talking? So, even if it is not mentioned, it is understood that
it points to marijuana.
The Dangerous Drugs Act of 1972 is a special law that deals specifically
with dangerous drugs which are subsumed into "prohibited" and
"regulated" drugs and defines and penalizes categories of offenses which
are closely related or which belong to the same class of species.
Accordingly, one (1) search warrant may thus be validly issued for the
said violations of the Dangerous Drugs Act.”
HELD: “Such illegal possession of items destructive of life and property
are related offenses or belong to the same species, as to be subsumed
within the category of illegal possession of firearms, etc. under P.D. No.
1866.” So the word “etcetera” covers them all.
47
HELD: The warrant is general. It is void. Why? Of course, if you seize
the tapes, puwede pa yan. But why will you seize television sets, video
cassette recorders, rewinders, etc? Are they illegal objects?
“Television sets, video cassette recorders, rewinders and tape cleaners
are articles which can be found in a video tape store engaged in the
legitimate business of lending or renting out betamax tapes. In short,
these articles and appliances are generally connected with, or related to
a legitimate business not necessarily involving piracy of intellectual
property or infringement of copyright laws. Hence, including these
articles without specification and/or particularity that they were really
instruments in violating an Anti-Piracy law makes the search warrant too
general which could result in the confiscation of all items found in any
video store.”
PEOPLE vs. COURT OF APPEALS
FACTS: The body of the search warrant stated was that the items were
“Stolen or Embezzled and proceeds or fruits of the offense, used or
intended to be used as the means of committing the offense.” So,
practically, the policeman copied the whole of Section 3.
HELD: The warrant is void. “The warrant was a scatter-shot warrant that
could refer "to robbery, theft, qualified theft or estafa." On this score
alone, the search warrant was totally null and void.”
Remember there is a similar provision in the RPC (violation of domicile).
Even if there is a search warrant, you cannot search the house without the
presence of the owner or the occupant of the house. Or if nobody is around,
the searching officer must secure 2 witnesses, 2 members of the
neighborhood. They cannot search on their own without any witnesses.
QUINTERO vs. NBI
FACTS: NBI raiders went to search a house by virtue of a search warrant.
What the NBI did, because there were so many rooms, was they
conducted the search simultaneously. One NBI searching the room and
the other in another room.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: That type or procedure is wrong because how can the witnesses
be present everytime the search is made when one is in the other room
and the others in another room. “Such a procedure, wherein members of
a raiding party can roam around the raided premises unaccompanied by
any witness, as the only witnesses available as prescribed by law are
made to witness a search conducted by the other members of the raiding
party in another part of the house, is held to be violative of both the spirit
and the letter of the law, which provides that no search of a house, room,
or any other premises shall be made except in the presence of at least one
competent witness, resident of the neighborhood.”
A search warrant has a lifetime only of ten (10) days.
once for 10 days. But it does not mean you can use it everyday or for the next
10 days.
HELD: Under the Rules of Court, a search warrant has a lifetime of ten
days. Hence, it could be served at any time within the said period, and if
its object or purpose cannot be accomplished in one day, the same may
be continued the following day or days until completed. Thus, when the
search under a warrant on one day was interrupted, it may be continued
under the same warrant the following day, provided it is still within the
ten-day period.
Q: After the search warrant has been implemented, what happens next?
A: Under Section 11, the officer must give a receipt to the owner or person
from whom he took it or to the witness
HELD: Estelito Mendoza was sustained in the SC. Why? Because if we
are quarreling about the issue of ownership of the bottles, then there
should be another case for replevin. Or, the bottles are in the possession
of the government, the La Tondeña should file action for interpleader to
determine who really owns the bottles. But you cannot use a mere search
warrant to resolve the issue of ownership. A search warrant is only to get
the property, but it does not have the same effect as a writ of replevin.
“A search warrant proceeding is not a criminal action, much less a civil
action. It is a special criminal process, the order of issuance of which
cannot and does not adjudicate the permanent status or character of the
48
seized property. It cannot therefore be resorted to, as was done here by
La Tondeña Distillers, as a means of acquiring property or of settling a
dispute over the same. The proper remedy is for private respondent or
for the Government itself, assuming the role of a stakeholder, to bring
the appropriate action.”
HELD: Estelito Mendoza was sustained in the SC. Why?
Because if we are quarreling about the issue of ownership of the
bottles, then there should be another case for replevin. Or, the
bottles are in the possession of the government, the La Tondeña
should file action for interpleader to determine who really owns
the bottles. But you cannot use a mere search warrant to resolve
the issue of ownership. A search warrant is only to get the
property, but it does not have the same effect as a writ of
replevin.
“A search warrant proceeding is not a criminal action,
much less a civil action. It is a special criminal process, the
order of issuance of which cannot and does not adjudicate the
permanent status or character of the seized property. It cannot
therefore be resorted to, as was done here by La Tondeña
Distillers, as a means of acquiring property or of settling a
dispute over the same. The proper remedy is for private
respondent or for the Government itself, assuming the role of a
stakeholder, to bring the appropriate action.”
ISSUE #1: Can the peace officers seized the firearms by
virtue of the search warrant?
HELD: NO, Because a search warrant can only issue for
one offense. The offense was possession of opium or drugs. It
cannot be used to seize firearms. So the firearms cannot be
seized by virtue of the warrant.
ISSUE #2: Would you say therefore that the seizure of
these firearms is illegal?
HELD: NO. It is valid because in the course of their search
for opium, they discovered another crime – illegal possession
of firearms. And since they discovered the commission of
another crime, they have the authority THEN AND THERE to
arrest the owner because the crime is being committed in their
presence. So there is a valid warrantless arrest. And since there
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
is a valid warrantless arrest, automatically there is also a valid
warrantless seizure. So, dun nahuli. What gives the peace
officers the authority is not the search warrant, but the fact that
it becomes merely incidental to the arrest of the accused.
HELD: No valid arrest. “Accused-appellant was arrested
one day after the killing of the victim and only on the basis of
information obtained by the police officers from unnamed
sources. These abovementioned circumstances clearly belie a
lawful warrantless arrest.” It is not sanctioned by Rule 113. So
kapag bagsak ang arrest, bagsak din automatically ang seizure.
“Considering that the arrest of accused-appellant herein
was unlawful, any search conducted on his person or place of
arrest which is an incident thereof, was also unlawful. Perforce,
any evidence recovered during the unlawful search, being made
without a warrant, becomes inadmissible in evidence against
accused-appellant and the shotgun which was allegedly the fatal
weapon cannot be presented against him.”
HELD: VALID! When you say search of the person, it
INCLUDES the immediate premises because for all you know,
walang baril, pero yung baril pala nasa drawer niya at gagamitin
sa iyo. So it includes the surrounding premises. That is covered
by the incidental search.
Catan is wrong. “Appellant was arrested in flagrante
delicto in the act of selling and delivering marijuana to the
poseur-buyers. His case therefore falls under the category of a
valid warrantless arrest. The subsequent search of his house
which immediately followed yielding other incriminating
evidence was a search contemporaneously made and as an
incident to a valid warrantless arrest in the immediate vicinity
where the arrest was made. That is a recognized exception to
the general rule that any search and seizure must be supported
by a valid warrant.” That is the general rule.
When you say incidental search, it does not only refer to
kapkapan mo yung tao. Pati immediate vicinity is included
because remember, he may have dangerous weapons in his
body which he can use against you.
49
HELD: “The search without a warrant of appellant’s
dwelling, a single room unit with a total area of 9 sq. m. was a
valid as an incident of a lawful warrantless arrest. The search
was conducted in a confined place within appellant’s immediate
control, an area where he might gain possession of a weapon.”
HELD: “It is beyond cavil that a lawful arrest must precede
the search of a person and his belongings. Where a search first
undertaken, then an arrest effected based on evidence produced
by the search, both such search and arrest would be unlawful,
for being contrary to law.”
You get that? Unahin muna ang arrest—lawful—and then search. If you
will search, and in the process of searching you discover something and you
will arrest him… aba, hindi puwede because how can you say that the search
was incidental to a lawful arrest eh nauna yung search kaysa arrest? So,
unlawful pareho. The arrest must precede the search, not the search preceding
the arrest. Do not search him in the hope that you will discover something
unlawful.
The guideline here is the appearance of the person, the time, the occasion
of the search. And you have to limit first your observation on the outer
garments. But you have to consider also, according to the SC, the experience
of the peace officer. Because peace officer, somehow, they have sixth sense
eh when it comes to shady characters. These are the factors which should be
taken into consideration, then stop and frisk. Kapkapan mo. Now suppose in
doing that, firearm is taken, or anything, pwede. He cannot say inadmissible.
Under the second exception ito (Stop and Frisk).
The probable cause is that when Posadas acted suspiciously and attempted to
flee with the buri bag, there was a probable cause that he was concealing
something illegal in the bag
ISSUE: Distinguish stop and frisk from search incidental to a lawful
arrest.
MIRANDA NOTES REMEDIAL LAW – CRIMPRO - BAR 2019
HELD: “We note that the trial court confused the concepts of a "stop-
and-frisk" and of a search incidental to a lawful arrest. These two types
of warrantless searches differ in terms of the requisite quantum of proof
before they may be validly effected and in their allowable scope.
“In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance,
the law requires that there first be a lawful arrest before a search can be
made — the process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the
area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence.
“While probable cause is not required to conduct a "stop and frisk," it
nevertheless holds that mere suspicion or a hunch will not validate a
"stop and frisk." A genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him. Finally, a "stop-
and-frisk" serves a two-fold interest: (1) the general interest of effective
crime prevention and detection, which underlies the recognition that a
police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more
pressing interest of safety and self-preservation which permit the police
officer to take steps to assure himself that the person with whom he deals
is not armed with a deadly weapon that could unexpectedly and fatally
be used against the police officer.”
So, the inspection is limited to a visual or ocular inspection only. But if the
checkpoints received a tip that there is a passenger, then it is allowed.
HELD: The warrantless search was valid. “The receipt of information by
NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession, plus the suspicious failure of Malmstedt to produce his
passport, taken together as a whole, led the NARCOM officers to
reasonably believe that he was trying to hide something illegal from the
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authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of
Malmstedt. In other words, the acts of the NARCOM officers in
requiring him to open his pouch bag and in opening one of the wrapped
objects found inside said bag (which was discovered to contain hashish)
as well as the two (2) travelling bags containing two (2) teddy bears with
hashish stuffed inside them, were prompted by Malmstedt’s own attempt
to hide his identity by refusing to present his passport, and by the
information received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession. To deprive the NARCOM
agents of the ability and facility to act accordingly, including, to search
even without warrant, in the light of such circumstances, would be to
sanction impotence and ineffectiveness in law enforcement, to the
detriment of society.”
But in illegal search, such rule does not apply. You may raise such issue even
after arraignment. The waiver only applies on the illegality of arrest, and does
not extend to searches. (People vs. Aruta)
Rule 127
Q: Is that applicable in criminal cases?
A: Of course. Just remember the rule, when you file a criminal case, there
is a civil action which is deemed instituted to recover civil liability. The
victim is interested for the civil liability and so, he has to wait for the criminal
case to end. But now even if the case is going on, the accused is hiding his
property one by one. He is trying to dispose. So, I will ask for the remedy of
preliminary attachment in criminal cases.
The provisional remedies in civil actions are also available in criminal
actions. You can find them in Rule 57 to 61. The most famous of them is the
remedy of preliminary attachment. So, if there is attachment in civil cases,
there is also in criminal cases.
So, you can avail of attachment upon filing of the case or it is pending in
court provided there is no waiver or reservation of the civil action and there
should be the presence of any of the four (4) grounds.