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Pre-Exam Reviewer (Chos) (We Shall All Pass!!!)By: Michael A.

CrimPro Atty, Obra Fri 5:30-8:30 First Sem

Basic Concept/Jurisdiction:

Q1: What is Criminal Procedure?

It is a generic term to describe the network of laws and rule which governs the procedural
administration of Justice.

Q2: What is procedural law?

Provides or regulates the steps by which one who committed a crime is to be punished (People
v Lacson)

Q3: What is the ultimate goal of Criminal Procedure?

It is to harmonize the governmental functions of maintaining peace and order and protecting the
constitutional rights of its citizens.

Q4. What is the system of procedure in our jurisdiction?

Accusatorial or Adversarial

Q5: What is Accusatorial Procedure?

It contemplates two contending parties before the court which hears them impartially and
renders judgement only after trial. In our jurisdiction set-up a judge is not permitted to act as an
inquisitor who pursues his own investigation and arrives at his own conclusion ex parte (Queto v
Catolico)

Q6: What are the requisites for a court to acquire jurisdiction over a criminal case? (Cruz v CA)

1) Jurisdiction over the subject matter


2) Jurisdiction over the territory
3) Jurisdiction over the person accused

Q7: What is jurisdiction over the subject matter?

It refers to the authority if the court to hear and determine a particular criminal case. It is, in
simple terms, jurisdiction over the offense charged.

Such jurisdiction is the authority to hear and try a particular offense and imposes the
punishment for it or that the offense is one which the court is, by law authorized to take
cognizance of (Antiporda Jr. v Garchitorena)

Q8: What is jurisdiction over the person?

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It refers to the authority of the court not over the subject matter of the criminal litigation but over
the person charged. This kind of jurisdiction requires that “the person charged with the offense
must have been brought into its forum for trial, forcibly by warrant of arrest or upon his voluntary
submission to the court” (Antiporda v Garchitorena; Cojuangco Jr v Sandiganbayan)

Q9: What are the ways for the court to acquired jurisdiction over the territory?

1) The municipality or territory where the offense was committed (or)


2) Where any of its essential ingredients occurred

Q10: What is jurisdiction?

Jurisdiction is the right to act or the power and authority to hear and determine a cause – it is a
question of law (Gomez v Montalban)

The term imports the power and authority to hear and determine issues of facts and of law, the
power to inquire into the facts, to apply the law and to pronounce the judgement

Q11: How Jurisdiction over the subject matter is conferred?

It is the law that confers jurisdiction and not the rules. Rules of procedure yields to substantive
law. Otherwise stated, jurisdiction must exist as a matter of law (Padunan v DARAB)

Jurisdiction over the subject matter is conferred by law and any judgement, order or resolution
issued without it is void and cannot be given any effect (Magno v People)

Q12: Can the court acquire jurisdiction over the subject matter through the acts of the parties?

No, jurisdiction over the subject matter in a criminal case cannot be conferred upon the court by
the accused, express waiver or otherwise, since such jurisdiction is conferred by the sovereign
authority which organized the court and is given only by law in the manner and form prescribed
by law (Fukuzume v People)

Subject Matter jurisdiction is not conferred by the consent or acquiescence of any or all of the
parties (Conjuangco Jr. v Republic)

It cannot be acquired through waiver or enlarged by the omission of the parties or conferred by
the acquiescence of the court (Atienza v People)

Q13: Can the court acquire jurisdiction over the subject matter through the acts of the court?

No, since subject matter jurisdiction is conferred by law, it is not conferred or acquired by the
unilateral assumption thereof by any tribunal (Tolentino v Social Security Commission)

It is not conferred by mere administrative policy of any trial court (Cudia v CA)

It cannot be likewise be conferred by an erroneous belief of the court that it had jurisdiction
(Azarcon v Sandiganbayan)

Q14: How jurisdiction over the subject matter is determined?

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In order to determine the jurisdiction of the court in criminal cases, the complaint or information
must be examined for the purpose of ascertaining whether or not the facts set out therein and
the punishment provided for by the law for such acts fall within the jurisdiction of the court in
which the criminal action is filed. It is settled that the jurisdiction of the court in criminal cases is
determined by the allegations of the complaint or information and not by the findings based on
the evidence of the court after trial (Mobilia Products v Umezawa)

Q15: How does the actual penalty imposed by the court affect its jurisdiction on the subject
matter?

In criminal prosecutions, jurisdiction of the court is not determined by what may be meted out to
the offender after the trial or even by the result of the evidence that would be presented during
the trial, but by the extent of the penalty which the law imposes, together with other legal
obligations, on the basis of the facts as recited in the complaint or information (People v
Buissan)

Q16: What is the rule on statue applicable to a criminal action in acquiring jurisdiction?

In Criminal Cases, the jurisdiction of the court is determined by the averments if the complaint or
information in relation to the law prevailing at the time of the filing of the complaint or information
and the penalty provided by law for the crime charged at the time of its commission (Asistio v
People)

Q17: What is Continuing Jurisdiction?

In view to this principle that once a court has acquired jurisdiction, that jurisdiction continues
until the court has done all that it can do in the exercise of that jurisdiction.

Once a court acquires jurisdiction, it may not be ousted from the case by any subsequent
events, such as a new legislation placing such proceedings under the jurisdiction of another
tribunal.

Q18: What are the exemptions to Continuing Jurisdiction?

1) There is an express provision in the statute, or


2) The statute is clearly intended to apply to actions pending before its enactment (People
v Cawaling)

Q19: What is the rule on objections on jurisdictional grounds?

The rule is settled that an objection based on the ground that the court lacks jurisdiction over the
subject matter may be raised or considered motu proprio by the court at any stage of the
proceedings or on appeal (Fukuzume v People)

Hence, questions of jurisdiction may be cognizable even if raised for the first time on appeal
(Atienza v People)

Q20: What is the limitation on objections on jurisdictional grounds?

The right to raise the issue of jurisdiction has its limits. A party, according to the court cannot
invoke the jurisdiction of the court to secure affirmative relief against his opponent after

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obtaining or failing to obtain such relief repudiate or question that same jurisdiction (Antiporda
Jr. Garchitorena)

After voluntarily submitting a cause and encountering an adverse decision on the merits it is too
late for the loser to question the jurisdiction or power of the court. (People v Munar)

Q21: What is the exemption on the limitation?

The rule still stands that jurisdiction is vested by law and cannot be conferred or waived by the
parties. Hence even on appeal and even if the reviewing party did not raise the issue of
jurisdiction the reviewing court is not precluded from ruling that the lower court had no
jurisdiction over the case (Pangilinan v CA)

Q22: How do the court acquire jurisdiction over the person? (Valdepenas v People)

1) It is acquired upon his arrest or apprehension, with or without warrant; or


2) Voluntary appearance or submission to the jurisdiction of the court

Q23: What constitute voluntary submission to jurisdiction of the court?

As a rule one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of
the court. Filing pleadings seeking affirmative relief constitutes voluntary appearance. (Jimenez
v Sorongon)

The voluntary submission of the accused to the jurisdiction of the court is accomplished either
by his pleadings to the merits such as by filing a motion to quash or other pleadings requiring
exercise of the court’s jurisdiction, appearing for arraignment or entering trial (Santiago v
Vasquez)

By his filing of a motion for determination of probable cause the court acquired jurisdiction over
the person (David v Abgay)

Q24: What are the exemptions to acts that constitute voluntary submission?

Making a special appearance in court to question the jurisdiction of the court over the person of
the accused is not voluntary appearance. There is likewise no submission to jurisdiction when
the accused filed a motion to quash the warrant of arrest because it is the very legality of the
court process forcing the submission of the person of the accused that is the very issue in
motion. (Miranda v Tuliao)

Q25: What is the rule on injunction on criminal proceeding?

The general rule that injunction will not be granted to restrain a criminal prosecution since public
interest require the criminal acts be immediately investigated and prosecuted for the protection
of society (Reyes v Camilon)

Q26: What is the exemption on Q25?

1) When the injunction is necessary to afford adequate protection to the constitutional


rights of the accused

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2) When it is necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions
3) When there is prejudicial question
4) When the acts of the officer are without or in excess of authority
5) Where the prosecution is under an invalid law ordinance or regulation
6) When there is double jeopardy
7) Where the court has no jurisdiction over the offense
8) Where it is a case of persecution rather than prosecution
9) Where the charges are manifestly false and motivated by the lust of revenge
10) When there is clear no prima facie case against the accused and a motion to quash on
that ground has been denied (Brocka v Enrile)

Q27: What is the jurisdiction of the MTC

1) Violations of city or municipal ordinances committed within their respective territorial


jurisdiction; (Paragraph 1 of Sec. 32, B. P. Blng. 129 as amended by R.A, No. 7691)
2) Offenses punishable with imprisonment of not more than six (6) years regardless of fine,
accessory penalties or civil liability; (Paragraph 2 of Sec. 32, B. P. Blng. 129 as
amended by R.A, No. 7691)
3) Offenses where the penalty prescribed is only a fine of not more than P4,000.00. (SC
Administrative Circular 09-94, June 14, 1994)
4) Offenses involving damage to property through criminal negligence regardless of
amount of fine which is the only imposable penalty under the third paragraph of Article
365 of the RPC. (Paragraph 2 of Sec. 32, B. P. Blng. 129 as amended by R.A, No. 7691)
5) Violation of BP22 which as par AM No 00-11-01-SC shall be governed by rules on
summary procedure
6) Summary procedure in certain cases
7) Special Jurisdiction to decide on applications for bail in criminal cases in the absence of
all RTC judges in province or city (Sec. 35 BP 129 amended by RA 7691)

Q28: What are the exemptions of #2 Q27?


a) Libel by means of writings or other similar means which is
punishable by imprisonment of not more than six (6) years but, by express
provision of Article 355 of the RPC, is placed within the exclusive
original jurisdiction of the RTC;
b) Some forms of direct bribery under Article 210 of the RPC
which are punishable by imprisonment of not more than six (6) years) but,
by express provision of Sec. 4(a) of P. D. No. 1606 as amended, are
placed within the exclusive jurisdiction of the Sandiganbayan;
c) Indirect bribery which is punishable by imprisonment of less
than six (6) years under Article 211 of the RPC but, by express provision of
Sec. 4(a) of P. D. No. 1606 as amended, is placed within the exclusive
original jurisdiction of the Sandiganbayan.

Q29: What are the summary proceedings under the jurisdiction of MTC?

1) Violation of traffic laws, rules and regulations


2) Violation of rental law
3) BP 22
4) Violation of municipal laws or city ordinance

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5) All other criminal cases where the penalty prescribed is imprisonment not
exceeding 6 months or fine not exceeding 1,000php or both irrespective of other
imposable penalties, accessory or otherwise or of the civil liability arising therefrom
6) Offenses involving damage to property through negligence where the imposable
fine does not exceed 10,000php

Q30: What are the prohibited motions and petitions in summary proceedings? (1991 Rule
on Summary Procedure)

1) Motion to quash the complaint except if the ground is lack of jurisdiction over the
subject matter or failure to comply with the barangay conciliation proceedings
2) Motion for bill of particulars
3) Motion for new trial, or for consideration of a judgment or for reopening of trail
4) Motion for extension of time to file pleadings
5) Memoranda
6) Petition for certiorari mandamus or prohibition against interlocutory order
7) Motion to declare the defendant in default
8) Dilatory motions for postponement
9) Reply
10) Third-party complaints
11) Interventions (Sec 19 of 1991 rule on summary procedure)

Q31: What is the jurisdiction of the RTC?

The following are cases that the RTC have original exclusive jurisdiction:
1) Criminal cases not within the exclusive jurisdiction of any court, tribunal or body;
2) Criminal cases designated by the SC under B. P. 129, Sec. 23;
3) Criminal cases placed within the exclusive original jurisdiction of the RTC regardless
of the imposable penalty by express provision of specific laws such as:

a) Libel by means of writings or other similar means which is punishable


imprisonment of not more than six (6) years under Article 355 of the RPC;
b) Violations of the Comprehensive Dangerous Drugs Act of 2002 under
Sec. 90 thereof;
c) Violations of intellectual property rights under A. M. No. 03-03-03-SC;
d) Violations of Anti-Money Laundering Act except those committed by
public officers or private persons in conspiracy with public officers.
e) Violations of R. A. No. 6657 also known as the Comprehensive Agrarian
Reform Law of 1988

The RTC shall exercise appellate jurisdiction over all criminal cases decided by the MTC
within its territorial jurisdiction (B. P. 129, Sec. 22)

Q32: What is the jurisdiction of the Family Court? (R. A. No. 8369 or the Family Courts Act
of 1997)

Section 5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
a) Criminal cases where one or more of the accused is below eighteen (18) years
of age but not less than nine (9) years of age or where one or more of the victims is a
minor at the time of the commission of the offense: Provided, That if the minor is found

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guilty, the court shall promulgate sentence and ascertain any civil liability which the
accused may have incurred.
The sentence, however, shall be suspended without need of application pursuant
to Presidential Decree No. 603, otherwise known as the "Child and Youth Welfare
Code";
xxx
i) Cases against minors cognizable under the Dangerous Drugs Act, as
amended;
j) Violations of Republic Act No. 7610, otherwise known as the "Special
Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as
amended by Republic Act No. 7658; and
k) Cases of domestic violence against:
1) Women - which are acts of gender based violence that results, or are
likely to result in physical, sexual or psychological harm or suffering to women;
and other forms of physical abuse such as battering or threats and coercion
which violate a woman's personhood, integrity and freedom movement; and
2) Children - which include the commission of all forms of abuse, neglect,
cruelty, exploitation, violence, and discrimination and all other conditions
prejudicial to their development.
If an act constitutes a criminal offense, the accused or batterer shall be subject to
criminal proceedings and the corresponding penalties.
If any question involving any of the above matters should arise as an incident in any
case pending in the regular courts, said incident shall be determined in that court.
Section 7. Special Provisional Remedies. - In cases of violence among immediate
family members living in the same domicile or household, the Family Court may issue a
restraining order against the accused or defendant upon verified application by the complainant
or the victim for relief from abuse.
Section 14. Appeals. - Decisions and orders of the court shall be appealed in the same
manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts.

Q33: What is the jurisdiction of Sandiganbayan? (P. D. No. 1606 as amended by R.A. No. 7975
and R.A. No. 8249)

The Sandiganbayan shall exercise exclusive original jurisdiction over criminal actions where
the requisites stated in (A) and (B) concur:

A) One or more of the persons charged are any of the following:

1) Officials of the executive branch occupying the positions classified as Grade “27”
and higher whether in a permanent, acting or interim capacity, at the time of the commission
of the offense, specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang


panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod,


city treasurer, assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and
higher;

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(d) Philippine army and air force colonels, naval captains, and all officers of
higher rank;

(e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or


controlled corporations, state universities or educational institutions or foundations;

(NOTE: Some of the public officers listed under subparagraphs “a” to “g”
occupy positions below Salary Grade “27” but by express provision of law are
placed under the jurisdiction of the Sandiganbayan.)

2) Members of Congress and officials thereof with Salary Grade “27”;

3) Members of the judiciary without prejudice to the provisions of the Constitution;

4) Chairmen and members of Constitutional Commissions, without prejudice to the


provisions of the Constitution; and

5) All other national and local officials with Salary Grade “27” and higher.

6) Private individuals provided one or more of the accused are public officers with
Salary Grade “27” or are listed under Section 4 of P. D. No.1606 as amended.

B) The offense charged is any of the following:

1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corruption Practices Act, and Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code;

2) Any offense (even those not included in the preceding paragraph) committed by
public officials and employees with Salary Grade “27” or higher or those with Salary Grade
below “27” but mentioned in Section 4 of PD No. 1606 as amended provided the offense was
committed by them in relation to or intimately connected with their office or in the
performance of their official function; and

3) Cases filed pursuant to or in connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.

* In cases where the offense charged is one of those


mentioned in Section 4 of PD 1606 as amended but none of the accused
occupies a position classified as Salary Grade “27” or higher or none of the
accused is among those listed in Section 4 of P. D. No. 1606 as amended,
exclusive original jurisdiction thereof shall be vested in the RTC or MTC
pursuant to its respective jurisdiction (depending on the imposable penalty

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whether imprisonment or only fine) as provided in B. P. Blg. 129, as
amended.

The Sandiganbayan shall exercise exclusive appellate jurisdiction over judgments rendered
by the RTC in cases mentioned in the immediately preceding paragraph whether in the exercise
of its original jurisdiction or appellate jurisdiction.

* The Sandiganbayan shall exercise exclusive original


jurisdiction over petitions for the issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs
and processes in aid of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise in cases filed or
which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986: Provided, That the jurisdiction over these petitions shall not be
exclusive of the Supreme Court.

***

D) Powers of the Ombudsman under Sec. 15(1) R.A. No. 6770 and Sec. 13(1),
Article XI, 1987 Constitution):

1) ADMINISTRATIVE - Investigate and prosecute on its own or on complaint by


any person, any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or inefficient.

3) CRIMINAL – Under its primary jurisdiction, to conduct preliminary investigation in all


cases cognizable by the Sandiganbayan and, in the exercise of such primary jurisdiction,
it may take over, at any stage, from any investigatory agency of Government, the
investigation of such cases.

Q34: What constitute offenses committed in relation to the office?

The relation has to be such that in the legal sense the offense cannot exist without the office
(Montilla v Hilario)

Even if the position is not an essential ingredient of the offense charged if the information avers
the intimate connection between the office and the offense this would bring the offense within
the definition of an offense committed in relation to the public office (Sanchez v Demetriou)

Rule 110: Prosecution of Offense

Q35: Who is party in interest as prosecutor for criminal proceeding?

The state or the People of the Philippines

Q36: How is the private offended party regarded in criminal proceeding?

Witness of the state (Heirs of Sara Maria Palma Burgos v CA)

Q37: What is the limitation of interest of private party in criminal proceeding?

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It is limited to civil liability (People v Santiago)

Q38: How is criminal action instituted if Preliminary Investigation is required?

It is instituted by filling the complaint with the proper officer for the purpose of conducting PI
(Sec 1 Rule 110)

Q39: How is criminal action instituted if PI is not required?

1) By filling the complaint or information directly with the MTC


2) Filing the complaint with the office of the prosecutor (Sec 1 Rule 110)

Q40: What is the rule of institution of criminal action in Manila and other chartered cities?

A special rule prevails. In these places the rule is that the complaint shall be filed with the office
of the prosecutor unless otherwise provided in their charter (Sec 1 Rule 110)

Q41: What are the effects of the institution of criminal action on the prescriptive period?

Institution of criminal action shall interrupt the period of prescription of the offense charged
unless otherwise provided by special law (Sec 1 Rule 110)

Q42: What would be the effect on prescription if the court filed had no jurisdiction?

The running of the period of prescription is interrupted with the filing of the action even if the
court is which the action was filed is without jurisdiction.

Q43: What are the duties of the public prosecutor as the one in control?

1) Determine whether a prima facie case exists


2) Decide which of the conflicting testimonies should be believed free from interference or
control of the offended party
3) Subject only to the right against self-incrimination determine which witnesses to present
in court.

Q44: Who may prosecute criminal action in MTC if the public prosecutor is not available?

1) The offended party


2) Any peace officer
3) Public officer charged with the enforcement of the law violated (OCA Circular No. 30-
2002)

Q45: When is a private prosecutor may prosecute a case even in the absence of the public
prosecutor?

It is if he is authorized to do so in writing. This written authorization shall be given by either the


Chief of the Prosecution Office or the Regional State Prosecutor. The written authorization in
order to be given effect must however be approved by the court (Sec 5 Rule 110)

Q46: What are the grounds for a private prosecutor be allowed to prosecute in absence of a
public prosecutor? (Sec 5 Rule 110)

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1) The public prosecutor has a heavy work schedule
2) There is a lack of public prosecutor

Q47: When does the private offended party bar in intervening in the civil aspect of the case?

1) It he waives the civil action


2) Reserves the right to institute it separately
3) Institute the civil action prior to the criminal action

Q48: What is the rule on prosecution of private crimes?

1) The crimes of adultery and concubinage shall not be prosecuted except upon complaint
filed by the offended spouse. (Sec 5)

The same rule provides that the action cannot be instituted against just one party alone.

The offense of adultery and concubinage may not be instituted if it is shown that the
offended party has consented to the offense or has pardoned the offenders (Sec 5)

2) The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted
except upon a complaint filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly pardoned by any of them.

If the offended party dies or incapacitated before she can file the complaint and she has
no known parents, grandparents or guardian the State shall initiate the criminal action in
her behalf.

Under Sec 5 the offended party even if a minor has the right to initiate the prosecution of
the offense independently of her parents, grandparents or guardian except if she is
incompetent or incapable of doing so.

3) The defamation under this rule consists in the imputation of the offenses of adultery,
concubinage, seduction, abduction and acts of lasciviousness.

The criminal action of defamation under the rule shall be brought at the instance of and
upon the complaint filed by the offended party. This rule provides that only the offended
party can initiate the criminal action.

Q49: What is complaint?

A complaint is a sworn written statement charging a person with an offense subscribed by the
offended party, any peace officer, or other public officer, charged with the enforcement of the
law violated.

A complaint is not a mere statement. It is a statement charging a person with an offense. As a


statement, it must be sworn and written.

Q50: What is Information?

Information is an accusation in writing charging a person with an offense subscribed by the


prosecutor and filed with the court.

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While information is an accusation in writing it is not required to be sworn unlike a complaint

Like complaint an information is filled in the name of the People of the Philippines against all
persons who appear to be responsible for the offense involved.

Q50: What are the elements for a complaint or information be deemed sufficient?

1) The name of the accused; if the offense is committed by more than 1 all of them must be
included
2) Designation of the offense given by the statute
3) The acts or omission complained of as constituting the offense
4) The name of the offended party
5) The approximate date of the commission of the offense
6) The place where the offense was committed

Q51: What is the test for sufficiency of the complaint?

The test is whether the crime is described in intelligible terms with such particularity as to
appraise the accused, with reasonable certainty, of the offense charged to enable the accused
to suitably prepare for his defense. (Lazarte Jr. v Sandiganbayan)

Q52: What are the rules on questioning the insufficiency of the complaint or information?

1) Objection relating to the form of the complaint or information cannot be made for the first
time on appeal. The accused-appellant should move before arraignment either for a bill
of particulars, for instance, if he wants to know the exact date of the commission of the
offense. He may also move for the quashal of the information if it does not conform to
the prescribed form. If he fails to pursue either remedy, he is deemed to have waived his
objections to any formal defect. (People v Teodoro)
2) Where the objection, however based on lack of jurisdiction over the subject matter, the
same may be raised or considered motu proprio by the court at any stage of the
proceedings or in appeal. (Fukuzume v People)

Q53: How is the nature of the offense determined?

1) Real nature of the criminal charge is determined not from the caption or the preamble of
the information or from the specification of the provision of law alleged violated which are
mere conclusion of law, but by the actual recital of the facts in the complaint or
information.
2) Every element of the offense must be stated in the information.
3) Even if designation of the crime in the information is defective what is controlling is the
allegation of the facts in the information that comprises a crime and adequately
describes the nature and cause of the accusation against the accused (People v
Angcuac)

Q54: What is the rule on the date of the commission of the offense in the information?

1) It is not necessary to state the precise date the offense was committed except when the
date is a material element of the offense. The offense may thus be alleged to have been
committed on a date as near as possible to the actual date of commission. At the

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minimum an indictment must contain all the essential elements of the offense charged to
enable the accused to properly meet the charge and duly prepare for defense (Sec 11)
2) The complaint will be sustained if the proof shows that the offense was committed at any
date within the period of the statute of limitations and before the commencement of the
action (Zapanta v People)

Q55: What is the duty of the prosecutor to convict the accused? (People v Yau)

1) To prove beyond reasonable doubt the commission of the crime charged


2) To establish with same quantum of proof the identity of the person or persons
responsible thereof.

Q56: What are the rules on statement of the qualifying and aggravating circumstances?

1) Every information must state the qualifying and aggravating circumstances attending the
commission of the crime.
2) It is not sufficient to merely state the offense was committed with treachery without
alleging the facts that gave rise to treachery.
3) Case law has it that for the qualifying and aggravating circumstances to be considered in
imposing the penalty thee same should be specified in the complaint or information for
such to be considered in the imposition of penalty. With the revision of Rules of Criminal
Procedure the prosecution became precluded from establishing any act or
circumstances not specifically alleged in the information. (People v Abrencillo)

Q57: What is the rule on cause of accusation?

The acts or omission complained must be alleged in such form as is sufficient to enable a
person of common understanding to know what offense is intended to be charged and enable
the court to know the proper judgement.

Q58: What is the rule on duplicity of offense?

The general rule is that a complaint or information must be charged only one offense.

Q59: When is it allowed for an information to charge more than one offense?

1) More than one offense may be charged under one complaint when the law prescribed a
single punishment for various offenses as in complex and compound crimes treated
under Art 48 of the Revise Penal Code.
2) Where a single act violates two or more entirely distinct and unrelated provisions of law,
the prosecution of the accused for more than one offense is separate information is
justified (Loney v People)
3) The law likewise impose a single penalty in the case of special complex crimes.
4) Concept of delito continuado (Santiago v Garchitorena)

Q60: What constitute a waiver on objection of duplicity of offense?

Duplicity of the offense is a ground for motion to quash. Should the information be defective
because of duplicity an objection must be timely interposed before trial otherwise he is deemed
to have waived said defect. Consequently the court may convict him for as many offenses as
are charged and proved and imposed on him the penalty for each offense.

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There should also be no problem in convincing an accused of two or more crimes erroneously
charged in one information or complaint but later proven to be independent crimes as if they
were made the subject of separate complaints. (People v Quemeggen)

Q61: What is the rule on information with regard to venue?

It is not enough to allege in the complaint or information the place of the commission of the
crime. Such place also be proven during the trial.

Q62: When does a court has jurisdiction to try offenses not committed within its territorial
jurisdiction?

1) Offense committed under Art 2 of RPC. In such case the court where the criminal action
is first filed shall take cognizance.
2) The SC pursuant to its constitutional power order a change of vanue or place of trial to
avoid miscarriage of justice. (Sec 5[4] Art 8 of 1987 Constitution) [Vanue of institution
cannot be changed only place of trial]
3) Offense committed in a train, aircraft, or other public or private vehicle in the course of its
trip, the action need not be instituted in the actual place where the offense was
committed. It may be instituted and tried in the court of any municipality or territory
where the vehicle passed during its trip. The crime may also be instituted and tried in the
place of departure and arrival. (Sec 15[b])
4) Offense committed on board a vessel in the course of voyage, the criminal action shall
be instituted and tried not necessarily in the place of commission. It may be instituted in
the court of the territory where the vessel passed during voyage. (Sec 15[c]) Note that
place of departure and arrival not included in the proper venue.
5) Cases cognizable by the Sandiganbayan.
6) If the offense is written defamation. It may be filled in the province or city where the
offended party held office at the time of the commission of the offense if he is a public
officer, or in the province or city where he actually resided at the time of commission, in
case the offended party is a private individual.

Q63: What is the rule in venue for perjury?

1) The crime of perjury committed through the making of a false affidavit, under Art 183 of
RPC is committed at the time the affiant subscribes and swears to his or her affidavit
since it is at the time that all elements of the crime are executed.
2) When the crime is committed through false testimony under oath in a proceeding which
neither criminal nor civil venue is at the place where the testimony under oath is given.
3) If in lieu of or as supplement to the actual testimony made in proceeding neither criminal
nor civil a written sworn statement is submitted venue may either be at the place where
the sworn statement is submitted or where the oath was taken.
4) In all cases determination of venue shall be based on the acts alleged in the information
to be constitutive of the crime committed.

Q64: What is the rule in venue for Illegal Recruitment? (Migrant workers and oversees Filipino
act of 1995)

Criminal action arising from illegal recruitment shall be filed not only in the RTC of the province
or city where the offense was committed. It may also be filled where the offended party actually
resides at the time of the commission. The court where it is first filed acquire jurisdiction.

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Q65: What is the rule in venue for violation of BP 22?

It may be filed in any of the places where the check is drawn, issued, delivered, or dishonoured.
(Rigor v People)

Rule 111: Prosecution of Civil Action

Q66: What is the rule on Civil Action upon institution of Criminal Action?

Criminal Action is instituted, the civil action for the recovery of the civil liability arising from the
offense charged shall be deemed instituted with the criminal action (Sec 1 Rule 111)

Q67: When is the civil action not deemed instituted with the criminal action when the liability
arises from the same law?

When the offended party waives the civil action, reserves the right to institute it separately or
institute the civil action prior to the criminal action. (Heirs of Sarah Marie Palma Burgos v CA)

Q68: What is the rule about the civil liability if the accused is acquitted?

When the accused is acquitted or when the case against him is dismissed for failure of the
prosecution to prove his guilt beyond reasonable doubt, the civil action is not automatically
extinguished since the liability of the accused can be determined by mere preponderance of
evidence (Heirs of Sarah Marie Palma Burgos v CA)

Q69: What are the cases that there is a criminal liability but no civil liability? (Cruz v Mina)

1) Espionage
2) Violation of Neutrality
3) Flight to an enemy country
4) Crime Against Popular Representation

Q70: What is the rule on parties on appeal for the civil liability of the action?

Real parties in interest in the civil aspect of a decision are the offended party and the accused.
Hence either the offended party or the accused may appeal the civil aspect despite the acquittal
of the accused. The public prosecutor generally has no interest in the appealing the civil aspect.
(Hun Hyun Park v Eun Wong Choi)

Q71: What is the applicable rule on procedure to the civil liability instituted with the criminal
action?

In a criminal case being the civil liability of the accused arising from the crime, the governing law
is the Rules of Criminal Procedure, not the Rules of Civil Procedure. (Hun Hyun Park v Eun
Wong Choi)

Q72: What are the kinds of civil action that may proceed independently from the criminal action?

1) Based on an obligation not arising from the act complained of as a felony (Art 31 of Civil
Code)

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2) Based on an act or omission that may constitute a felony but nevertheless treated
independently from the criminal action by specific provision (Art 32, 33, 34, 2176 of Civil
Code)

Q73: When should the reservation of the right to institute a separate civil action be raised?

If the offended party desires to reserve the right to institute the civil action after the criminal
action has been instituted, the reservation shall be made before the prosecution starts
presenting its evidence. (Sec 1 Rule 111)

Q74: What is the rule on separate civil action?

After the criminal action is commenced the separate civil action arising therefrom cannot be
instituted until final judgement has been entered in the criminal action (Sec 2 Rule 111)

Q75: What is the effect to the previously instituted civil action when the subsequent criminal
action has commenced?

The civil action already instituted shall be suspended in whatever stage of the proceedings it
may be found, as long as no judgement on merits has yet been entered in the civil action (Sec 2
Rule 111)

Q76: Till when the suspension of the civil action last?

The suspension shall last until final judgement is rendered in the criminal action (Sec 2 Rule
111)

Q77: Can counterclaim, cross-claim, third-party claim be entertained in a criminal action?

A court trying a criminal case is limited to determine guilt of the accused and, if proper, to
determine his civil liability. It cannot award damages in favour of the accused. A criminal case is
not the proper proceeding to determine the civil liability of the private complainant. (Maccay v
Noble)

No counterclaim, cross-claim, or third-party complaints may be filled by the accused in the


criminal case, but any cause of action which could have been the subject thereof may be
litigated in a separate civil action (Sec 1 [a] Rule 111)

Q78: What is the rule on filing fee for actual damages?

There is no filling fees required for actual claimed (Sec 1 [a] Rule 111)

Q79: What is the exemption on the rule on filling fee for actual damages?

In BP 22 cases the filing fees shall be paid based on the amount of the check and shall be paid
in full (Sec 1 [b] Rule 111)

In Estafa cases the filling fee shall be paid based on the amount involved (Sec 21 [a] AM 04-2-
04)

Q80: What are the instances when the offended party should pay for filing fees?

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Filing fees shall be paid by the offended party upon the filing of criminal action in court where he
seeks for the enforcement of civil liability by way of moral, nominal, temperate or exemplary
damages but other than actual damages, and where the amount of such damages is specified
in the complaint or information. (Sec 1 [a] Rule 111)

Q81: What is the rule when the amount is not specified?

Any of the damges is subsequently awarded the filling fees assessed in accordance with the
Rules shall constitute a first lien on the judgement awarding such damages (Sec 1 [a] Rule 111)

Q82: What is the effect of death of the accused on his criminal liability?

Death of the accused prior to final judgement, as when pending appeal of his conviction,
extinguishes his criminal liability (People v Paras)

Q83: What is the effect of death of the accused on his civil liability?

1) If the accused dies after arraignment and during pendency of the criminal action, the civil
liability arising from the crime is extinguished (Sec 4 Rule 111)
2) If the accused dies before arraignment the case shall be dismissed but the dismissal
shall be without prejudice to any civil action which the offended party may file against the
estate of the deceased (Sec 4 Rule 111)

Q84: What is the rule on death of accused in the civil liability for independent civil action?

Civil liabilities arising from sources of obligation not arising from the offense charged may be
continued against the estate or legal representative of the accused after proper substitution or
against the estate as the cause may be. The heirs of the accused may be substituted for the
deceased without requiring the appointment of an executor or administrator, and the court may
appoint guardian ad litem for the minor heirs (Sec 4 Rule 111)

Q85: When is an employer subsidiary liable? (Calang v People)

1) There are indeed the employers of the convicted employee


2) There are engaged in some kind of industry
3) The crime was committed by the employee in the discharged of their duty
4) The execution against the latter has not been satisfied due to insolvency

Q86: What is prejudicial question?

A prejudicial question is understood in law to be that which arises in a case the resolution of
which is logical antecedent of the issue involved in the criminal case, and the cognizance of
which pertains to another tribunal. It is determinative of the criminal case, but the jurisdiction to
try and resolve it is lodged in another tribunal. It is based on a fact distinct and separate from
the crime but is so intimately connected with the crime that it determines the guilt or innocence
of the accused. (San Miguel Properties Inc. v Perez)

Q87: When does the concept of prejudicial question come into play?

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When a civil action and a criminal action are both pending, and there exists, in the former case,
an issue which must be pre-emptively resolved before the latter case may proceed (Strategic
Alliance Development Corporation v Star Infrastructure Development Corporation)

Q88: What are the elements of a prejudicial question? (Sec 7 Rule 111)

1) The previously instituted civil action involves an issue similar or intimately related to the
issued raised in the subsequent criminal action
2) The resolution of such issue determines whether or not the criminal action may proceed
3) Jurisdiction to try said question must be lodged in another tribunal (Magestrado v
People)

Q89: Is the suspension of the criminal action automatic when there is prejudicial question?

No, filing of a petition for suspension is required. It precludes a motu proprio suspension by the
court. (Sec 6 Rule 111)

Q90: Can the petition for suspension due to prejudicial question be raised on appeal?

No, the determination of the pendency of a prejudicial question should be made at the first
instance. (IBP v Atienza)

Q90: What is the effect of prejudicial question?

When there is a prejudicial question, the criminal case may be suspended pending the final
determination of the issues in the civil case. (Sec 2 Rule 111)

Q91: Is it required that the criminal case be already in court to file petition for suspension on the
ground of prejudicial question?

No, it is sufficient that the case be in the stage of preliminary investigation as long as there has
been previously instituted civil case. (Sec 6 Rule 111)

Q92: Until when can the petition for suspension be filed?

It shall be filed at any time before the prosecution rests. (Sec 6 Rule 111)

Q93: When is an administrative case deemed a civil case?

A case filed with an administrative body as one civil in nature. It was ruled that an action for
specific performance, even in pending with an administrative agency, raises a prejudicial
question. (San Miguel Properties v Perez)

Rule 112: Preliminary Investigation

Q94: What is a preliminary investigation?

An inquiry or a proceeding the purpose of which is to determine whether there is sufficient


ground to engender a well-founded belif that a crime has been committed and the respondent is
probably guilty thereof and should be held for trial. (Sec 1 Rule 112)

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Q95: What are the purposes of a preliminary investigation? (Callo-Claridad v Esteban)

1) To inquire concerning the commission of a crime and the connection of the accused with
it, in order that he may be informed of the nature and character of the crime charged
against him, and if there is probable cause for believing him guilty, that the state shall
take the necessary steps to bring him to trial
2) To preserve the evidence and keep the witnesses within the control of the state
3) To determine the amount of bail if the offense is bailable.

Q96: What is the purpose of preliminary investigation in benefit of the accused?

To free a respondent from the inconvenience, expense, ignominy and stress of defending
himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt
has been passed upon in a more or less summary proceeding by competent officer designated
by law (Ledesma v CA)

Q97: What is the nature if preliminary investigation?

Preliminary investigation is a function that belongs to the public prosecutor. The prosecution of
crimes lies with the executive department whose principal power and responsibility is to see that
the laws of the land are faithfully executed. Accordingly a necessary component of this power is
the right to prosecute violators (Punzalan v Plata)

Q98: Can the court interfere with the preliminary investigation?

No, the determination of probable cause is under our criminal justice system an executive
function that the courts cannot interfere with in the absence of grave abuse of discretion
(Salapuddin v CA)

Q99: What are the questions to answer in a preliminary investigation? (Callo-Trinidad v


Esteban)

1) Whether or not a crime has been committed


2) Whether or not the respondent is probably guilty

Q100: How can the right for a preliminary investigation be waived?

The right to a preliminary investigation may be waived for failure to invoke the right prior to or at
the time of the plea (People v Gomez)

Q101: What is probable cause in a preliminary investigation?

Probable cause pertains to facts and circumstances sufficient to support a well-founded belief
that a crime has been committed and the accused is probably guilty thereof. (Shu v Dee)

Q102: What is Preliminary Examination?

It is the judicial determination of probable cause on the other hand is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. (People v Yecyec)

Q103: When can the court interfere with the preliminary investigation?

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The court would not hesitate to interfere if there is a clear showing that the Secretary of Justice
gravely abused his discretion amounting to lack of jurisdiction in making and un arriving at the
conclusion. (Lanier v People)

Not every abuse however will justify judicial intrusion. The court emphasized that to justify
judicial intervention the abuse of discretion must be so patent and gross as to amount to an
intervention of a positive duty or to a virtual refusal to perform a duty enjoined by law or to act at
all in contemplation of law as where the power is exercised in an arbitrary and despotic manner
by reason of passion or hostility. (Unilever Philippines Inc. v Tan)

Q104: Who are authorized to conduct preliminary investigation?

1) Provincial or City Prosecutor and their assistants


2) National and Regional State Prosecutor
3) Other Officers as maybe authorized by law

Q105: Who are the other officers that are authorized by law?

1) Commission on Election regarding all election offenses punishable under the Omnibus
Election Code and to prosecute the same. (Sec 265 BP 881 Omnibus Election Code as
amended by RA 9369 Sec 43)
2) Office of the Ombudsman for any acts or omission of any public officer or employee,
office, or agency when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and in
the exercise of this primary jurisdiction it may take over at any stage from any
investigatory agency of the government, the investigation of such cases (Sec 15[1] RA
6770)
3) Presidential Commission of Good Governance with the assistance of the Office of the
Solicitor General and other government agancies is empowered to investigate, file and
prosecute cases investigated by it (EO 14, May 7, 1986)

Q106: When is preliminary investigation a right?

A preliminary investigation is required before the filling of a complaint or information for an


offense where the law prescribes a penalty of at least 4 years 2 months and 1 day without
regard to the fine (Sec 1 Rule 112)

Q107: What are procedures to file a complaint when PI is not required?

1) By filing the complaint directly with the prosecutor


2) By filing the complaint or information with the MTC

Q108: What is the instance that the complaint cannot be filed directly to the MTC even if PI is
not required?

When the complaint is to be filed in manila or any other chartered cities unless their charter
provides otherwise.

Q109: What is the rule when the complaint is filed with the prosecutor when PI is not required?

20
The prosecutor shall act on the complaint based on the affidavit and other supporting
documents submitted by the complaint within 10 days from its filling (Sec 8 Rule 112)

Q110: How many days must the evidence be summited when the judge require the submission
of additional evidence?

10 days (Sec 8 [b] Rule 112)

Q111: What is the effect if the person was lawfully arrested without warrant when the offense
requires preliminary investigation?

The person arrested shall be required to undergo an inquest. (Sec 6 Rule 112)

Q112: Is inquest required to all persons arrested validly without warrant?

No, the right for inquest proceeding is if the offense has a statutory penalty of at least 4yrs
2months and 1day.

Q113: Can a person invalidly arrested without warrant undergo an inquest proceeding?

No, inquest proceeding are proper only when the accused has been lawfully arrested without
warrant (Ladlad v Velsco)

Q114: Can a person validly arrested without warrant avail a preliminary investigation?

Yes, although an inquest is the proceeding which shall apply when a person is validly arrested
without warrant such person may nevertheless ask for a PI before the complaint or information
is filed. (Sec 6 Rule 112)

Q115: What is the effect when a person validly arrested without warrant asks for a PI?

He must sign a waiver of the provision of Art 125 of the Revise Penal Code (Delay in Delivery)
in the presence of his counsel. (Sec 6 Rule 112)

Q116: When must the PI be terminated when the person validly arrested without warrant avails
PI?

The PI must be terminated within 15 days from its inception (Sec 6 Rule 112)

Q117: Is the accused under custody bared from asking PI after the information is filed in court?

No, if an information has already been filed the person arrested who is now an accused may still
ask for a preliminary investigation within 5 days from the time he learns of its filing with the
same right to adduce evidence in his defense under Rule 112. (Sec 6 Rule 112)

Q118: Is the waiver of the provision of Art 125 of RPC bars him for application of bail?

No, the waiver of the person validly arrested without warrant does not preclude him from
applying bail. (Sec 6 Rule 112)

Q119: Where must the person arrested validly without warrant apply for bail

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The bail must be applied for and issued by the court in the province, city, or municipality where
the person arrested is held. (Ruiz v Beldia)

Q120: When must the accused question the regularity or absence of PI?

An accused who wants to question the regularity or absence of PI must do so before he enters
his plea. (Sec 26 Rule 114)

Q121: What is the effect of failure to raise the question before entering his plea?

Failure to invoke the right before entering his plea will amount to waiver (People v Gomez)

Q122: Does the absence of PI affect the jurisdiction of the court?

No, it does not affect the court’s jurisdiction over the case nor does it impair the validity of the
information or otherwise render it defective (Enriquez v Sarmiento)

Q123: Is the absence of PI ground for dismissal of the information?

No, the court should not dismiss the information. It should remand the case to the prosecutor so
that the PI may be conducted. (Larranaga v CA)

Q124: What is the nature of Inquest proceeding?

An inquest is an investigation conducted by a prosecutor in a criminal case where a person has


been lawfully arrested without warrant. It is informal and summary and its purpose is to
determine whether or not the person detained should remain under custody and then charged in
court. (Sec 1 Part 2 Manual for Prosecutor)

Q125: What must the prosecutor receive in order to conduct the inquest?

1) Affidavit of arrest
2) The investigation report
3) The statements of the complainant and the witnesses
4) Other supporting evidence gathered

The affidavit of arrest and the statements or affidavits of the complaint and witnesses shall be
subscribed and sworn to before the inquest officer by the affiants (Sec 3 Part 2 Manual for
Prosecutors)

Q126: Is the presence of the detained person required during the inquest?

Yes, the detained person should be present during the inquest proceeding unless reason exist
that would dispense with his presence like confinement in a hospital, detention in a place
requiring maximum security or his presence is not feasible by reason of age, health or similar
factors. (Sec 6 Part 2 Manual for Prosecutors)

Q127: What should the inquest be about?

The inquest conducted must be for the offense which the detainee was arrested. (Beltran v
People)

22
Q128: When must the investigating officer determine the sufficiency of ground?

Within 10 days from the termination of the investigation (Sec 3 [f] Rule 112)

Q129: What is the rule for motion for reconsideration for PI?

The aggrieved party under current practice is not precluded from filing a motion for
reconsideration within 15 days from receipt of the assailed resolution. If the motion is denied the
aggrieved party may appeal within 15 days from the denial. (Sec 3 2000 NPS Rule on Appeal,
DOJ Dept. Circular No. 70)

Rule 113: Arrest

Q130: What is arrest?

An arrest is the taking of a person into custody in order he may be bound to answer for the
commission of an offense (Sec 1 Rule 113)

Q131: What constitute an arrest?

A person need not be actually restrained by the person making the arrest. Under the rules a
submission to the custody of the person making the arrest already constitutes an arrest. (Sec 2
Rule 113)

Q132: What is probable cause to issue a warrant of arrest?

Such facts and circumstances which would lead a reasonable discreet and prudent man to
believe that an offense has been committed and the person to be arrested committed thereof
(Ocampo v Abando)

Q133: What is the rule in execution of the warrant of arrest?

The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be
executed within 10 days from its receipt. Within 10 days after the expiration of the period, the
officer to whom it was assigned for execution shall make a report to the judge who issued the
warrant. In case of failure to execute, he shall state the reason for its non-execution (Sec 4 Rule
113)

Q134: What must the arresting officer inform the person to be arrested?

1) The cause of his arrest


2) The fact that a warrant has been issued for his arrest

Q135: What are the instances when the information need not be given? (Sec 7 Rule 113)

1) When the person to arrested flees


2) Forcibly resists
3) The giving of the information would imperil the arrest

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Q136: Should the arresting officer have the physical possession of the warrant at the time of the
arrest?

No, the officer need not have the warrant in his possession at the time of the arrest. However
after the arrest the warrant shall be shown to the person arrested as soon as practicable if the
person arrested so requires (Sec 7 Rule 113)

Q137: When is warrantless arrest valid? (Sec 5 Rule 113)

1) When in his presence the person to be arrested has committed, is actually committing,
or is attempting to commit an offense. (in flagrante delicto)
2) When an offense has been committed, and he has probable cause to believe, based on
his personal knowledge of facts and circumstances, that the person to be arrested has
committed it. (hot pursuit)
3) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgement or is temporarily confined
while his case is pending or has escaped while being transferred from one confinement
to another
4) When a person, previously lawfully arrested, escapes or is rescued. Any person, may
immediately pursue or retake him without a warrant at any time and in any place within
the Philippines (Sec 13 Rule 113)
5) When an accused released on bail attempts to depart from the Philippines without
permission of the court where the case is pending, he may be re-arrested without
warrant. (Sec 23 Rule 114)

Q138: What are the requisites of in flagrante delicto?

1) The person to be arrested must execute an overt act indicating he has just committed, is
actually committing, or is attempting to commit a crime
2) Such overt act is done in the presence or within the view of the arresting officer (People
v Collado)

Q139: What are the requisites of hot pursuit?

1) An offense has been committed


2) The person making the arrest has personal knowledge of facts indicating that the person
to be arrested has committed it. (People v Villareal)

Q140: In method of arrest without warrant what must the peace officer inform the person to be
arrested?

1) He must inform the person to be arrested of his authority


2) He must inform the person to be arrested the cause of his arrest

Q141: When can the information need not be given? (Sec 8 Rule 113 for peace officer; Sec 9
for private person)

1) If the person to be arrested is engaged in the commission of an offense


2) Is in the process of being pursued immediately after its commission
3) Escapes or flees
4) Forcibly resists before the officer has the opportunity to inform him

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5) When the giving of the information will imperil the arrest

Q142: In method of arrest without warrant what must the private person inform the person to be
arrested? (Sec 9 Rule 113)

1) Intention to arrest him


2) The cause of his arrest

Q143: Where must the person arrested under in flagrante and hot pursuit?

The person arrested without warrant shall be forthwith delivered to the nearest police station or
jail. (Sec 5 Rule 113)

Q144: When can the arrest be executed?

An arrest may be made on any day and at any time of the day or night. (Sec 6 Rule 113)

Q145: What are the rights of a person arrested, detained or under custodial investigation under
RA 7438? (RA 7438)

1) Right to be assisted by counsel at all times. (Sec 2[a])


2) Right to remain silent (Sec 2[b])
3) Right to be informed of the above rights (Sec 2[b])
4) Right to be visited by the immediate members of his family, by his counsel, or by any
non-government organization, national or international. (Sec 2[f])
5) The Counsel must be one who is independent and competent. He shall be allowed to
confer at all times with the person arrested, detained or under CI. If such person cannot
afford the services of his own counsel, he must be provided by the investigating officer
with a competent and independent counsel. (Sec 2[b])
6) In the absence of a lawyer, no CI shall be conducted and the suspected person can only
be detained by the investigation officer in accordance to Art 125 of RPC Delay in
delivery. (Sec 3). Any waiver of Art 125 shall be in writing and signed by the person in
the presence of his counsel; otherwise the waiver is null and void (Sec 2[e])
7) Any extrajudicial confession made shall also be in writing and signed in the presence of
his counsel, or in the latter’s absence upon valid waiver, and in the presence of any of
the parents, older brothers and sisters, his spouse, the municipal mayor, municipal
judge, district school supervisor, or priest or minister of the gospel chosen by him;
otherwise the extrajudicial confession shall be inadmissible (Sec 2[d])

Q146: What are the rights of a person under custodial investigation under People v Mahinay?
(People v Mahinay)

1. The person arrested, detained, invited or under custodial investigation must be


informed in a language known to and understood by him of the reason for the
arrest and he must be shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to and understood by
said person;
2. He must be warned that he has a right to remain silent and that any statement he
makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the
presence of an independent and competent lawyer, preferably of his own choice;

25
4. He must be informed that if he has no lawyer or cannot afford the services of a
lawyer, one will be provided for him; and that a lawyer may also be engaged by
any person in his behalf, or may be appointed by the court upon petition of the
person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no
custodial investigation in any form shall be conducted except in the presence
of his counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means telephone, radio, letter
or messenger with his lawyer (either retained or appointed), any member of his
immediate family, or any medical doctor, priest or minister chosen by him or by any
one from his immediate family or by his counsel, or be visited by/confer with duly
accredited national or international non-government organization. It shall be the
responsibility of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is
made voluntarily, knowingly and intelligently and ensure that he understood the
same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed
that it must be done in writing AND in the presence of counsel, otherwise, he
must be warned that the waiver is void even if he insist on his waiver and chooses
to speak;
9. That the person arrested must be informed that he may indicate in any manner at
any time or stage of the process that he does not wish to be questioned with
warning that once he makes such indication, the police may not interrogate him if
the same had not yet commenced, or the interrogation must ceased if it has
already begun;
10. The person arrested must be informed that his initial waiver of his right to
remain silent, the right to counsel or any of his rights does not bar him from
invoking it at any time during the process, regardless of whether he may have
answered some questions or volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be,
obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in
whole or in part, shall be inadmissible in evidence.

Q147: When does custodial investigation starts?

As a rule, CI begins to operate as soon as the investigation ceases to be a general inquiry


into an unsolved crime and the interrogation is then aimed on a particular suspect who has
been taken into custody and to whom the police would then direct interrogatory questions
that tend to elicit incriminating statements (Luspo v People)

RA 7438 expanded the meaning of CI. Under Sec 2[f] CI shall include the practice of
issuing an “invitation” to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the “inviting” officer for any
violation of law. This means even those who voluntarily surrendered before a police officer
must be appraised of their Miranda rights. For one, the same pressure of a custodial setting
exist in this scenario. (People v Chavez)

Q148: What is the effect of admission to bail on objections to an illegal arrest?

26
An application for on admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued, provided that he raises the
objection before he enters his plea. The objection shall be resolved by the court as early as
practicable but not later than the start of the trial of the case. (Sec 26 Rule 114)

Q149: What is the effect of an illegal arrest on jurisdiction of the court?

The legality of the arrest affects only the jurisdiction of the court over the person accused.
The illegality of the arrest cannot in itself be the basis of acquittal. (People v Yau)

Q150: What is the effect of an illegal arrest to the decision of the court?

If the warrantless arrest of an accused is later proven to be invalid, such fact is not a
sufficient cause to set aside a valid judgement rendered upon a sufficient complaint after a
trial free from error. (People v Velasco)

Q151: When must the illegality of arrest be raised and what is the effect of failure to do so?

Any objection involving a warrant of arrest of the procedure by which the court acquired
jurisdiction of the person of the accused must be made before he enters his plea; otherwise
the objection is deemed waived. (People v Velasco)

Q152: When is the rule of being precluded of the accused to raise the illegality of the arrest
applicable?

The principle that the accused is precluded after arraignment from questioning the illegal
arrest or the lack of or irregular PI applies only if the accused voluntarily enters his plea and
participates during the trial, without previously invoking his objections thereto. (Leviste v
Alameda)

Q153: What is the effect of the waiver of illegality of arrest to admissibility of the evidence?

Jurisprudence holds that a waiver of an illegal warrantless arrest does not mean a waiver to
the inadmissibility of the evidence seized during an illegal warrantless arrest. (People v
Martinez)

Q154: Who are persons not subject to arrest?

1) A senator or member of the House of Representatives shall, in all offenses


punishable by not more than 6yrs imprisonment be privileged from arrest while the
congress is in session. (Sec 11 Art 6 1987 Constitution)
2) Under generally accepted principles of international law, sovereigns and other chiefs
of state, ambassadors, ministers plenipotentiary, ministers resident, and charge
d’affaires are immune from the criminal jurisdiction of the country of their
assignment and are therefore immune from arrest. (II Hyde, International Law)
3) RA 75 prohibits the arrest of duly accredited ambassadors, public ministers of a
foreign country, their duly registered domestics (Sec 4 RA 75), subject to the
principle of reciprocity (Sec 7 RA 75)

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