Criminal Procedure: San Beda College of Law

San Beda College of Law
135
MEMORY AID IN REMEDIAL LAW
CRIMINAL PROCEDURE
Criminal Jurisdiction – power of the 2. Determined by the law in force

State to try and punish a person for a at the time of the institution of
violation of its penal laws. the criminal action. ONCE
VESTED, IT CANNOT BE
REQUISITES FOR A VALID EXERCISE OF WITHDRAWN BY:
CRIMINAL JURISDICTION: a) subsequent valid amendment
1. The offense, by virtue of the of the information; or
imposable penalty OR its nature, b) a subsequent statutory
is one which the court is by law amendment of the rules of
authorized to take cognizance jurisdiction, UNLESS the
of, (jurisdiction over the amendatory law provides
SUBJECT MATTER). otherwise.
2. The offense must have been
committed within its territorial
jurisdiction, (jurisdiction over RULE 110
the TERRITORY). PROSECUTION OF OFFENSES
3. The person charged with the
offense must have been brought Section 1. Institution of criminal
to its presence for trial, forcibly actions.
by warrant of arrest or upon his
voluntary submission to the For offenses where a preliminary
court, (jurisdiction over the investigation is required - by filing the
PERSON OF THE ACCUSED). complaint with the proper officer for the
purpose of conducting the requisite
JURISDICTION JURISDICTION preliminary investigation.
OVER THE OVER THE PERSON
SUBJECT MATTER OF THE ACCUSED Preliminary investigation is REQUIRED for
Derived from the May be acquired by offenses where the penalty prescribed by
law. It can never be consent of the law is at least 4 years, 2 months and
acquired solely by accused or by waiver 1day without regard to fine (Rule 112,
consent of the of objections. Sec. 1 Par.2).
accused.
Objection that the If he fails to make his For all other offenses - by filing the
court has no objection in time, he complaint or information directly with
jurisdiction of the will be deemed to the Municipal Trial Courts and Municipal
subject matter may have waived it. Circuit Trial Courts, or the complaint
be made at any stage with the office of the prosecutor.
of the proceeding,
and the right to DOES NOT APPLY to offenses which are
make such objection subject to summary procedure.
is never waived.
Effect of institution of the criminal
DETERMINATION OF CRIMINAL action:
JURISDICTION: It interrupts the running of the period of
1. Determined by the allegations in prescription of the offense charged
the complaint or information not unless otherwise provided by special
by the results of proof or by the laws.
trial court’s appreciation of the
evidence presented.
REMEDIAL LAW COMMITTEE

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

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3. Other public officer FULL DISCRETION AND CONTROL OF

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

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WHO MAY PROSECUTE offended party, even if the

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

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the proceeding from continuing to its The manifest intent of the provision is to
ultimate conclusion. make a specific identification of the
person to whom the commission of an
 DESISTANCE of complainant does not offense is being imputed.
bar criminal prosecution but it operates
as waiver of the right to pursue civil
indemnity. Section 8. Designation of the offense.
Section 6. Sufficiency of complaint or The information or complaint must state

information. or designate the following whenever
possible:
CONTENTS OF A VALID COMPLAINT OR 1. The designation of the
INFORMATION offense given by the statute.
1. Name of the accused, 2. The statement of the
including any appellation or acts or omissions constituting the
nickname offense, in ordinary, concise and
An error in the name of the particular words.
accused is not reversible as long 3. The specific qualifying
as his identity is sufficiently and aggravating circumstances
established and this defect is must be stated in ordinary and
curable at any stage of the concise language.
proceedings as the insertion of
the real name of the accused is The qualifying and aggravating
merely a matter of form. circumstances cannot be appreciated
2. The designation of the even if proved UNLESS alleged in the
offense information.
3. The acts or omissions
complained of as constituting In case of allegation of aggravating
the offense circumstance of HABITUAL
4. The name of the DELINQUENCY, it should not be generally
offended party averred. The information must specify
5. The approximate time of the requisite data regarding:
the commission of the offense 1. the commission of the
6. The place wherein the crimes;
offense was committed 2. the last conviction or
release;
PURPOSE OF THE RULE 3. the other previous
1. To inform the accused of the conviction or release of the
nature and cause of accusation accused.
against him.
2. To notify the defendant of the ALLEGATIONS PREVAIL OVER
criminal acts imputed to him so DESIGNATION OF THE OFFENSE IN THE
that he can duly prepare his INFORMATION
defense.
It is not the designation of the offense in
Substantial defect in the information the complaint or information that is
cannot be cured by evidence that would controlling (People vs. Samillano, 56
jeopardize the accused’s right to be SCRA 573); the facts alleged therein and
informed of the true nature of the not its title determine the nature of the
offense he is being charged with crime (People vs. Magdowa, 73 Phil.
512).
Section 7. Name of the accused.
The accused may be convicted of a crime
PURPOSE more serious than that named in the

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

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2. Special Complex crimes or information upon the filing of a new

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

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the accused could action must be instituted and tried in

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

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

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 Counterclaims, cross-claims, third accused is acquitted (Sapiera vs.

party complaints are no longer allowed Court of Appeals, 314 SCRA 370).
in a criminal proceeding. Any claim
which could have been the subject  Extinction of the penal action does
thereof may be litigated in a separate not carry with it the extinction of the
civil action. civil action, UNLESS the extinction
proceeds from a declaration in a final
Section 2. When separate civil action is judgment that the fact from which the
suspended. civil liability might arise did not exist.
PRIMACY OF CRIMINAL ACTION OVER  The extinction of the civil liability

CIVIL ACTION refers exclusively to civil liability arising
1. After the filing of the from crime; whereas, the civil liability
criminal action, the civil action for the same act considered as a quasi-
which has been reserved delict is not extinguished even by a
CANNOT be instituted until final declaration in the criminal case that the
judgment has been rendered in criminal act charged has not happened
the criminal action. or has not been committed by the
2. If the civil action is accused.
instituted BEFORE the filing of
the criminal action and the  Where the criminal case was
criminal action is subsequently dismissed before trial because the
commenced, the pending civil offended party executed an affidavit of
action shall be suspended until desistance, the civil action thereof is
final judgment in the criminal similarly dismissed.
action has been rendered.
EXCEPTIONS: Section 3. When civil action may
a) In cases of independent civil proceed independently.
actions based upon Arts. 32, 33,
34 and 2176 of the Civil Code;  The institution of an independent civil
b) In cases where the civil action against the offender under
action presents a prejudicial Articles 32, 33, 34 and 2176 of the Civil
question; Code may proceed independently of the
c) In cases where the civil criminal case and at the same time
action is consolidated with the without suspension of either proceeding.
criminal action; and
d) Where the civil action is not  Recovery of civil liability under
one intended to enforce the civil Articles 32, 33, 34 and 2176 of the Civil
liability arising from the offense. Code arising from the same act or
omission may be prosecuted separately
ACQUITTAL IN A CRIMINAL CASE DOES even without a reservation. The
NOT BAR THE FILING OF THE CIVIL reservation and waiver herein refers only
CASE WHERE: to the civil action for the recovery of
1. the acquittal is based on civil liability arising from the offense
reasonable doubt, if the civil charged (DMPI Employees Credit Coop
case has been reserved vs. Velez, G.R. No. 129282, Nov. 29,
2. the decision contains a 2001).
declaration that the liability of
the accused is not criminal but PURPOSE
only civil in nature and To prevent the offended party from
3. the civil liability is not recovering damages twice for the same
derived from or based on the act or omission.
criminal act of which the

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Section 4. Effect of death on civil 1. Office of the prosecutor;

actions. or
2. court conducting the
AFTER arraignment and during the preliminary investigation; or
pendency of the criminal action - 3. court where the criminal
extinguishes the civil liability arising action has been filed for trial at
from the delict. any time before the prosecution
rests.
BEFORE arraignment - the case shall be
DSMISSED without prejudice to any civil
action the offended party may file RULE 112
against the estate of the deceased. PRELIMINARY INVESTIGATION
 However, the independent civil action Section 1. Preliminary Investigation

instituted under Section 3 of this Rule or defined; when required.
which thereafter is instituted to enforce
liability arising from other sources of Preliminary Investigation - is an inquiry
obligation may be continued against the or proceeding to determine whether
estate or legal representative of the there exists sufficient ground to
accused after proper substitution or engender a well-founded belief that a
against said estate, as the case may be. crime has been committed and that the
respondent is probably guilty thereof,
Section 7. Elements of prejudicial and should be held for trial. (Sec. 1,
question. Rule 112)
Prejudicial Question - that which arises Preliminary Investigation is required to

in a case, the resolution of which is the be conducted BEFORE the filing of a
logical antecedent of the issue involved complaint or information for an offense
therein, and the cognizance of which where the penalty prescribed by law is
pertains to another tribunal. It must be at least 4 years, 2 months and 1 day
determinative of the case before the without regard to the fine.
court but the jurisdiction to try and
resolve the question must be lodged in There is NO right of preliminary
another court or tribunal. investigation under Section 7, Rule 112
when a person is LAWFULLY arrested
Rationale: to avoid two conflicting unless there is a waiver of the provisions
decisions. of Article 125 of the Revised Penal Code.
ELEMENTS OF A PREJUDICIAL QUESTION HOWEVER, the accused can ask for

1. The civil action must be Preliminary Investigation in the following
instituted prior to the criminal cases:
action. 1. if a person is arrested,
2. The civil action involves he can ask for preliminary
an issue similar or intimately investigation BEFORE the filing
related to the issue raised in the of the complaint/information
criminal action. BUT he must sign a waiver in
3. The resolution of such accordance with Article 125,
issue determines whether or not RPC.
the criminal action may proceed. 2. AFTER the filing of the
information/complaint, the
WHERE TO FILE PETITION FOR accused may, within 5 days from
SUSPENSION BY REASON OF the time he learns of its filing
PREJUDICIAL QUESTION ask for preliminary investigation.

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PURPOSES 1. Provincial or city fiscal

1. to determine whether a and their assistants
crime has been committed and 2. Judges of the MTC and
whether there is probable cause MCTC
to believe that the accused is 3. National and regional
guilty thereof; state prosecutors
2. to preserve evidence and 4. Such other officers as
keep the witnesses within the may be authorized by law such
control of the State; as: the COMELEC, Ombudsman
3. to determine the amount and PCGG
of bail, if the offense is bailable.
PRELIMINARY INVESTIGATION:
PERSONAL STATUTORY RIGHT
The right to preliminary investigation is
a personal right covered by statute and
may be waived expressly or by
implication.
Absence of preliminary investigation

does not affect the jurisdiction of the
court or invalidate the information if no
objection was raised by the accused.
REMEDIES OF THE ACCUSED IF THERE Section 3. Procedure

WAS NO PRELIMINARY INVESTIGATION
1. Refuse to enter a plea
upon arraignment and object to Filing of the complaint
accompanied by the affidavits
further proceedings upon such
and supporting documents.
ground
2. Insist on a preliminary
investigation
3. File a certiorari, if Within 10 days after the filing, the
refused investigating officer shall either
4. Raise lack of preliminary dismiss or issue subpoena.
investigation as error on appeal
5. File for prohibition
If subpoena is issued,
As preliminary investigation is NOT a respondent shall submit a
counter-affidavit and other
part of the trial, the dismissal of the supporting documents within 10
case by the investigator will not days from receipt thereof.
constitute double jeopardy and will not
bar the filing of another complaint for
the same offense, but if re-filed, the
Hearing (optional). It shall be held
accused is entitled to another within 10 days from submission of
preliminary investigation (U.S. vs. counter-affidavits or from the
Marfori, 35 Phil. 666). expiration of the period of their
submission.
Section 2. Officers authorized to
conduct preliminary investigation.
Resolution of
investigating prosecutor
PERSONS AUTHORIZED TO CONDUCT A (Sec. 4 & 5).
PRELIMINARY INVESTIGATION

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If respondent cannot be subpoenaed, or

if subpoenaed but does not submit his The RTC judge need NOT personally
counter-affidavit within 10 days, examine the complaint and witnesses in
investigating officer shall resolve the the determination of probable cause for
complaint based on the evidence the issuance of the warrant of arrest. He
presented by the complainant. is only required to:
1. Personally evaluate the
RIGHTS OF RESPONDENT IN A report and the supporting
PRELIMINARY INVESTIGATION documents submitted during the
1. to submit counter- preliminary investigation by the
affidavits fiscal; and
2. to examine evidence 2. On the basis thereof he
submitted by the complainant may:
3. to be present in the a) Dismiss;
clarificatory hearing. b) Issue warrant; or
c) Require further
affidavits.
INSTANCES WHEN MTC MAY CONDUCT

PRELIMINARY INVESTIGATION:
1. cases cognizable by the
RTC may be filed with the MTC
for preliminary investigation;
2. cases cognizable by the
MTC because it is an offense
where the penalty prescribed by
The Rules do not require the presence of law is at least four (4) years, two
the respondent in the Preliminary (2) months and one (1) day
Investigation, what is required is that he without regard to the fine.
be given the opportunity to controvert  In either situation, the MTC is
the evidence of the complainant by authorized to issue a warrant of arrest if
submitting counter-affidavits. there is necessity of placing the
respondent under immediate custody, in
Section 6. When warrant of arrest may order not to frustrate the ends of
issue justice.
Probable Cause - presupposes a
reasonable ground for belief in the CONDITIONS BEFORE THE
existence of facts warranting the INVESTIGATING MUNICIPAL TRIAL
proceedings complained of; JUDGE CAN ISSUE A WARRANT OF
- an apparent ARREST (Herrera, p. 282)
state of facts found to exist upon 1. Have examined in
reasonable inquiry which would induce a writing and under oath the
reasonably intelligent and prudent man complainant and his witnesses by
to believe that the accused person had searching questions and answers;
committed the crime charged. searching questions and answers
– such questions as may have the
If the judge finds probable cause, he tendency to show the
shall issue a warrant of arrest, or a commission of the crime and the
commitment order if the accused had perpetrator thereof;
already been arrested and hold him for 2. Be satisfied that a
trial. If the judge is satisfied that there probable cause exists; and
is no necessity for placing the accused 3. That there is a need to
under custody, he may issue summons place the respondent under
instead of warrant of arrest.

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148
immediate custody in order not the RPC in the presence of his

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

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Section 9. Cases not requiring a judge after examination under

preliminary investigation nor covered oath or affirmation of the
by the Rule on Summary Procedure. complainant and the witnesses
he may produce
PROCEDURE TO BE FOLLOWED IN CASES 2. The warrant must
WHICH DO NOT REQUIRE PRELIMINARY particularly describe the person
INVESTIGATION to be seized
1. Evaluate the evidence A warrant of arrest has NO expiry date.

presented It remains valid until arrest is effected or
2. Conduct searching warrant is lifted.
questions or answers
3. Require the submission REMEDY FOR WARRANTS IMPROPERLY
of additional evidence ISSUED
Where a warrant of arrest was
 For cases under the Revised Rules on improperly issued, the proper remedy is
Summary Procedure, no warrant shall be a petition to quash it, NOT a petition for
issued except where the accused fails to habeas corpus, since the court in the
appear after being summoned. latter case may only order his release
but not enjoin the further prosecution or
If the complaint is filed with the the preliminary examination of the
prosecutor involving an offense accused (Alimpoos vs. Court of Appeals,
punishable by imprisonment of less than 106 SCRA 159).
4 years, 2 months and 1 day, the
procedure in Rule 112, Section 3 (a) shall Posting of bail does not bar one from
be observed. questioning illegal arrest (Section 26,
Rule 114, Rules of Court).
If the complaint is filed with the MTC,
the same procedure under Rule 112, Section 2. Arrest; how made.
Section 3 (a) shall be observed.
MODES OF EFFECTING ARREST
RULE 113 1. By an actual
ARREST restraint of the person to be
arrested.
Section 1. Definition of arrest. 2. By his submission to
the custody of the person making
Arrest – the taking of a person into the arrest.
custody in order that he may be bound
to answer for the commission of an Upon arrest, the following may be
offense (Sec. 1 Rule 113). confiscated from the person arrested:
1. Objects subject of the
Modes of Arrest offense or used or intended to
1. arrest by virtue of a be used in the commission of the
warrant crime;
2. arrest without a warrant 2. Objects which are the
under exceptional circumstances fruits of the crime;
as may be provided by statute 3. Those which might be
(Sec. 5, Rule 113). used by the arrested person to
commit violence or to escape;
ESSENTIAL REQUISITES OF A VALID 4. Dangerous weapons and
WARRANT OF ARREST those which may be used as
1. It must be issued upon evidence in the case.
probable cause which must be
determined personally by a

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Section 5. Arrest without warrant; voluntarily submitted himself to

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

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be arrested 2. when he and the cause immediately its

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

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Section 13. Arrest after escape or 4. recognizance

rescue.
BAILBOND RECOGNIZANCE
Where a person lawfully arrested An obligation under an obligation of
escapes or is rescued, any person may seal given by the record, entered into
immediately pursue or retake him accused with one or before some court or
without a warrant at any time and in any more sureties, and magistrate duly
place within the country. The pursuit made payable to the authorized to take it,
must be immediate. proper officer with with the condition to
the condition to be do some particular
Section 14. Right of Attorney or void upon act;
relative to visit person arrested. performance by the
accused of such acts
RA 7438 defined certain rights of persons as he may legally be
arrested, detained, or under custodial required to perform
investigation, with the penalties for
violations thereof. Prosecution witnesses may also be
required to post bail to ensure their
appearance at the trial of the case
RULE 114 where:
BAIL 1. there is a substitution of
information (Sec. 4, Rule110),
Section 1. Bail defined. and
2. where the court believes
Bail -- the security given for the release that a material witness may not
of a person in custody of the law, appear at the trial (Sec. 14, Rule
furnished by him or a bondsman, 119).
conditioned upon his appearance before
any court as required under the Section 2. Conditions of the bail;
conditions specified by the rule (Sec. 1, requirements.
Rule 114).
CONDITIONS OF BAIL
1. The undertaking shall be
effective upon approval, and,
 A person is in the custody of law when unless cancelled, shall remain in
he has been either arrested or otherwise force at all stages of the case
deprived of his freedom or when he has until promulgation of the
voluntarily submitted himself to the judgment of the RTC,
jurisdiction of the court by surrendering irrespective of whether the case
to the proper authorities. was originally filed in or
appealed to it;
All persons, except those charged with 2. The accused shall appear
offenses punishable by reclusion before the proper courts
perpetua when evidence of guilt is whenever so required by the
strong, shall, before conviction, be court or these Rules;
bailable by sufficient sureties, or be 3. The failure of the
released on recognizance as may be accused to appear at the trial
provided by law (Section 13, Article III, without justification despite due
1987 Constitution). notice shall be deemed a waiver
of his right to be present
Forms of bail: thereat. In such case, the trial
1. corporate surety may proceed in absentia;
2. property bond 4. The bondsman shall
3. cash deposit surrender the accused to court

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for execution of the final The prosecution cannot adduce evidence

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

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of crime aggravated by the If the law at the time of the application

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

does not impose the death penalty, the FACTORS TO BE CONSIDERED IN FIXING
subsequent amendment of the law THE REASONABLE AMOUNT OF BAIL
increasing the penalty cannot apply to (NOT EXCLUSIVE)
the case, otherwise it would be ex post 1. Financial ability of the
facto, and penalties are determined by accused to give bail;
the law at the time of the commission of 2. Nature and
the offense. circumstances of the offense;
3. Penalty for the offense
charged;

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155
4. Character and reputation upon a matter of significance would

of the accused; render him liable for perjury.
5. Age and health of the
accused; Section 14. Deposit of cash as bail.
6. Weight of evidence
against the accused; EFFECT OF DEPOSITING CASH AS BAIL
7. Probability of the Accused shall be discharged from
accused appearing at the trial; custody as it is considered as bail.
8. Forfeiture of other bail;
9. The fact that the Section 15. Recognizance
accused was a fugitive from
justice when arrested; and Recognizance - an obligation of record,
10. Pendency of other cases entered into before some court or
when the accused is on bail officer authorized to take it with a
Bail must not be in a prohibitory amount. condition to do some particular act and
Excessive bail is not to be required for the accused is often allowed to obligate
the purpose of preventing the accused himself to answer the charge.
from being admitted to bail.
Section 16. Bail when not required;
Section 11. Property, how posted. reduced bail on recognizance.
Property Bond – is an undertaking Instances wherein the accused may be

constituted as a lien on the real property released on recognizance, without
given as security for the amount of the putting bail or on reduced bail:
bail (sec11);
It is required that the annotation of a CAN BE 1. Offense charged is

lien on the land records of the property RELEASED violation of an
posted as bail, otherwise the property WITHOUT BAIL ordinance, light
bail bond shall be cancelled. felony or a criminal
offense, the
Section 12. Qualifications of sureties in imposable penalty
property bond. wherefore does not
Philippine residency is required of a exceed 6 months of
property bondsman. The reason for this imprisonment and/or
is that bondsmen in criminal cases, fine of P 2,000 under
residing outside of the Philippines, are R.A.6036.
not within the reach of the processes of
its courts (Villaseñor vs. Abano, 21 SCRA 2. Where the accused
312). has applied for
probation and
before the same has
been resolved but
Section 13. Justification of sureties. no bail was filed or
the accused is
The purpose of the rule requiring the incapable of filing
affidavit of qualification by the surety one, in which case
before the judge, is to enable the latter he may be released
to determine whether or not the surety on recognizance
possesses the qualification to act as
such, especially his financial worth. 3. In case of a
youthful offender
The justification being under oath, any held for physical or
falsity introduced thereto by the surety mental examination,

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trial or appeal, if the accused seeks to be released

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

court where the case is pending, of right, the mere probability that the
or in the absence or accused will escape, or even if he had
unavailability of the judge previously escaped while under
thereof, with another branch of detention, does not deprive him of his
the same court within the right to bail. The remedy is to increase
province or city. the amount of the bail, provided such
2. Whenever the grant of amount would not be excessive. (Sy
bail is a matter of discretion, or Guan vs. Amparo, 79 Phil. 670)

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prejudice to any liability on the bond

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

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Reasonable Doubt is that doubt

The application for probation must be engendered by an investigation of the
filed within the period of perfecting an whole proof and an inability, after such
appeal. Such filing operates as a waiver investigation, to let the mind rest easy
of the right to appeal. The accused in upon the certainty of guilt. Absolute
the meantime, is entitled to be released certainty of guilt is not demanded by the
on bail or recognizance. (Sec. 4, PD 968, law to convict of any criminal charge but
as amended) moral certainty is required, and this
certainty is required as to every
Section 25. Court supervision of proposition of proof requisite to
detainees. constitute the offense.
The employment of physical,  Equipoise rule – where the evidence

psychological or degrading punishment of the parties in a criminal case are
against any prisoner or detainee or the evenly balanced, the constitutional
use of substandard or inadequate penal presumption of innocence should tilt in
facilities under subhuman conditions favor of the accused and must be
shall be dealt with by law (Section 19(2), acquitted.
Article III, 1987 Constitution).
B. TO BE INFORMED OF THE NATURE
Section 26. Bail not a bar to objection AND THE CAUSE OF THE
on illegal arrest, lack of or irregular ACCUSATION AGAINST HIM.
preliminary investigation. An accused cannot be convicted of an
offense unless it is clearly charged in the
AN APPLICATION FOR OR ADMISSION TO complaint or information. To convict him
BAIL SHALL NOT BAR THE ACCUSED of an offense other than that charged in
a. from challenging the validity of the complaint or information would be a
his arrest OR violation of this constitutional right
b. legality of the warrant issued (People vs. Ortega, 276 SCRA 166).
therefore, OR
c. from assailing the regularity or When a person is charged in a complaint
questioning the absence of with a crime and the evidence does not
preliminary investigation of the show that he is guilty thereof, but does
charge against him, PROVIDED, show that he is guilty of some other
he raises them before entering crime or a lesser offense, the court may
his plea. sentence e him for the lesser offense,
PROVIDED the lesser offense is a cognate
RULE 115 offense and is included in the complaint
RIGHTS OF THE ACCUSED with the court.
This rule enumerates the rights of a C. TO BE PRESENT AND DEFEND IN

person accused of an offense, which are PERSON AND BY COUNSEL AT EVERY
both constitutional as well as statutory, STAGE OF THE PROCEEDING
save the right to appeal, which is purely
statutory in character.
Section 1. Rights of the accused at the THE PRESENCE OF THE ACCUSED IS

trial. REQUIRED ONLY
1. During arraignment (Sec.
A. TO BE PRESUMED INNOCENT 1b, rule 116)
In all criminal prosecutions, the accused 2. Promulgation of
is presumed innocent until the contrary judgment EXCEPT when the
is proved beyond reasonable doubt. conviction is for a light offense,
in which case, it may be

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159
pronounced in the presence of 3. his failure to appear is

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

1. accused has been arraigned examined but ONLY on matters covered
2. he has been duly notified of the by his direct examination, unlike an
trial ordinary witness who can be cross-
examined as to any matter stated in the

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160
direct examination or connected having jurisdiction to permit the

therewith (Section 6, Rule 132). His privilege of cross-examination.
failure to testify is not taken against him
but failure to produce evidence in his The main purpose of the right to
behalf is considered against him (U.S. confrontation is to secure the
vs. Bay, 97 Phil. 495). opportunity of cross-examination and the
secondary purpose is to enable the judge
F. RIGHT AGAINST SELF- to observe the demeanor of witnesses.
INCRIMINATION
The accused is protected under this rule In any criminal proceeding, the
from questions which tend to incriminate defendant enjoys the right to have
him, that is, which may subject him to compulsory process to secure the
penal liability. attendance of witnesses and the
production of evidence in his behalf.
The right may be waived by the failure
of the accused to invoke the privilege at H. RIGHT TO SPEEDY, IMPARTIAL AND
the proper time, that is, AFTER the PUBLIC TRIAL
incriminating question is asked and The right to a speedy trial is intended to
before his answer; avoid oppression and to prevent delay by
imposing on the courts and on the
The privilege of the accused to be prosecution an obligation to proceed
exempt from testifying as a witness with reasonable dispatch.
involves a prohibition against testimonial
compulsion only and the production by The courts, in determining whether the
the accused of incriminating documents, right of the accused to a speedy trial has
and articles demanded from him. (U.S. been denied, should consider such facts
vs. Tan Teng, 23 Phil. 145) as the length of the delay, the accused’s
assertion or non-assertion of his right,
EXCEPTIONS: immunity statutes such as: and the prejudice to the accused
1. RA 1379 – Forfeiture of Illegally resulting from the delay.
obtained wealth
2. RA 749 – Bribery and Graft cases There is NO violation of the right where
the delay is imputable to the accused.
RIGHT OF THE ACCUSED AGAINST SELF- (Solis vs. Agloro, 64 SCRA 370)
INCRIMINATION VS. RIGHT OF THAT OF
AN ORDINARY WITNESS REMEDIES AVAILABLE TO THE ACCUSED
The ordinary witness may be compelled WHEN HIS RIGHT TO A SPEEDY TRIAL IS
to take the witness stand and claim the VIOLATED
privilege as each question requiring an 1. He should ask for the
incriminating answer is shot at him, an trial of the case not for the
accused may altogether refuse to take dismissal;
the witness stand and refuse to answer 2. Unreasonable delay of
any and all questions. the trial of a criminal case as to
make the detention of defendant
G. RIGHT TO CONFRONT AND CROSS- illegal gives ground for habeas
EXAMINE THE WITNESSES AGAINST corpus as a remedy for obtaining
HIM AT TRIAL release so as to avoid detention
for a reasonable period of time
Confrontation is the act of setting a 3. Accused would be
witness face-to-face with the accused so entitled to relief in a mandamus
that the latter may make any objection proceeding to compel the
he has to the witness, and the witness dismissal of the information.
may identify the accused, and this must
take place in the presence of the court

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161
IMPARTIAL TRIAL
Due process of law requires a hearing
before an impartial and disinterested THE SPEEDY TRIAL ACT OF 1998
tribunal, and that every litigant is (RA 8493)
entitled to nothing less than the cold
neutrality of an impartial judge. (Mateo, DUTY OF THE COURT AFTER
Jr. vs. Villaluz, 50 SCRA 180) ARRAIGNMENT OF AN ACCUSED
Court SHALL order a pre-trial conference
Public trial – one held openly or to consider the following:
publicly; it is sufficient that the relatives 1. plea bargaining;
and friends who want to watch the 2. stipulation of facts;
proceedings are given the opportunity to 3. marking for identification of
witness the proceedings. evidence of parties;
4. waiver of objections to
EXCLUSION OF THE PUBLIC IS VALID admissibility of evidence; and
WHEN: 5. such other matter as will
1. evidence to be produced is promote a fair and expeditious
offensive to decency or public trial;
morals;
2. upon motion of the accused; TIME LIMIT FOR THE TRIAL OF CRIMINAL
(Sec. 21, Rule 119) CASES: SHALL NOT EXCEED 180 days
from the first day of trial, HOWEVER,
RULE ON TRIAL BY PUBLICITY this rule is NOT ABSOLUTE, for the law
The right of the accused to a fair trial is provides for the following EXCEPTIONS:
not incompatible to a free press. 1. those governed by the Rules on
Pervasive publicity is not per se as Summary Procedure; or
prejudicial to the right to a fair trial. To 2. where the penalty prescribed by
warrant a finding of prejudicial law DOES NOT EXCEED 6 months
publicity, there must be allegations and imprisonment or a fine of P1,000
proof that the judges have been unduly or both;
influenced, not simply that they might 3. those authorized by the Chief
be, by the barrage of publicity. (People Justice of the SC;
vs. Teehankee, 249 SCRA 54)
PERIOD FOR ARRAIGNMENT OF THE
I. RIGHT TO APPEAL ON ALL ACCUSED
CASES ALLOWED BY LAW AND IN THE Within 30 days from the filing of the
MANNER PRESCRIBED BY LAW. information, or from the date the
The right to appeal from a judgment of accused appealed before the
conviction is fundamentally of statutory justice/judge/court in which the charge
origin. It is not a matter of absolute is pending, whichever date last occurs.
right, independently of constitutional or
statutory provisions allowing such
appeal.
WAIVER OF THE RIGHT TO APPEAL WHEN SHALL TRIAL COMMENCE AFTER

The right to appeal is personal to the ARRAIGNMENT
accused and similarly to other rights of Within 30 days from arraignment,
kindred nature, it may be waived either HOWEVER, it may be extended BUT only:
expressly or by implication. HOWEVER, 1. for 180 days for the first 12
where death penalty is imposed, such calendar month period from the
right cannot be waived as the review of effectivity of the law;
the judgment by the COURT OF APPEALS 2. 120 days for the second 12
is automatic and mandatory (A.M. NO. month period; and
00-5-03-SC).

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162
3. 80 days for the third 12 month

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

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163
2. When the accused did

not fully understand the meaning To constitute searching inquiry, the
and consequences of his plea. questioning must focus on:
3. Where the information is 1. the voluntariness of the plea;
insufficient to sustain conviction and
of the offense charged. 2. Whether the accused understood
4. Where the information fully the consequence of his
does not charge an offense, any plea.
conviction thereunder being
void. Section 5. Withdrawal of improvident
5. Where the court has no plea of guilty.
jurisdiction.
Plea of Guilty – an unconditional
Section 2. Plea of Guilty to a lesser admission of guilt, freely, voluntarily and
offense. made with full knowledge of the
consequences and meaning of his act and
An accused may enter a plea of guilty to with a clear understanding of the precise
a lesser offense PROVIDED that there is nature of the crime charged in the
consent of the offended party and the complaint or information;
prosecutor to the plea of guilty to a
lesser offense which is necessarily INSTANCES OF IMPROVIDENT PLEA
included in the offense charged. 1. plea of guilty was compelled by
violence or intimidation
After arraignment but BEFORE trial, the 2. the accused did not fully
accused may still be allowed to plead understand the meaning and
guilty to a lesser offense after consequences of his plea
withdrawing his plea of not guilty. In this 3. insufficient information to
plea of guilty to a lesser offense, no sustain conviction of the offense
amendment of the complaint or charged
information is necessary. 4. information does not charge an
offense, any conviction
If the accused entered a plea to a lesser thereunder being void
offense WITHOUT the consent of the 5. court has no jurisdiction
offended party and the prosecutor AND
he was convicted, his subsequent At any time before the judgment of
conviction of the crime charged would conviction becomes final, the court may
NOT place him in Double Jeopardy. permit an improvident plea of guilty to
be withdrawn and be substituted by a
Section 3. Plea of guilty to capital plea of not guilty.
offense; reception of evidence.
The withdrawal of a plea of guilty is not
When the accused pleads guilty to a a matter of right to the accused but of
capital offense, the court shall: sound discretion to the trial court.
1. conduct a searching inquiry into (People vs. Lambrino, 103 Phil. 504)
the voluntariness and full
comprehension of the
consequences of his plea;
2. require the prosecution to prove Section 6. Duty of the court to inform
his guilt and the precise degree accused of his right to counsel.
of his culpability;
3. ask the accused if he desires to DUTIES OF THE COURT WHEN THE
present evidence in his behalf ACCUSED APPEARS BEFORE IT WITHOUT
and allow him to do so if he COUNSEL
desires.

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164
1. It must inform the defendant

that it is his right to have an Just in civil cases, the bill of particulars
attorney before being arraigned; here should be considered an integral
2. After giving him such part of the complaint or information
information, the court must ask which it supplements.
him if he desires the aid of an The remedy against an indictment
attorney; that fails to allege the time of
3. If he desires and is unable to commission of the offense with
employ one, the court must sufficient definiteness is a motion
assign an attorney de oficio to for a bill of particulars, not a
defend him; and motion to quash.
4. If the accused desires to procure
an attorney of his own, the court The failure to ask for Bill of Particulars
must grant him reasonable time amounts to a waiver of such right.
therefor.
Section 10. Production or inspection of
material evidence in possession of
Section 7. Appointment of counsel de prosecution.
oficio.
Section 11. Suspension of arraignment
PURPOSE
To secure to the accused, who is unable GROUNDS FOR SUSPENSION
to engage the services of an attorney of 1. the accused appears to be
his own choice, effective representation suffering from an unsound
by making it imperative on the part of mental condition which
the court to consider in the appointment effectively renders him unable to
of counsel de oficio, the gravity of the fully understand the charge
offense and the difficulty of the against him and to plead
questions likely to arise in the case vis-à- intelligently thereto;
vis the ability and experience of the 2. there exists a valid prejudicial
prospective appointee. question; and
3. a petition for review of the
resolution of the prosecutor is
Section 8. Time for counsel de oficio to pending at the Department of
prepare for arraignment. Justice or the Office of the
President; provided that the
As to what is reasonable time, it period of suspension shall not
depends upon the circumstances exceed 60 days counted from the
surrounding the case like the gravity of filing of the petition.
the offense, complexity of the
allegations in the complaint or
information, whether a motion to quash RULE 117
or a bill of particulars has to be filed, MOTION TO QUASH
and other similar considerations.
Section 1. Time to move to quash.
Motion to Quash - this presupposes that

the accused hypothetically admits the
Section 9. Bill of particulars. facts alleged, hence the court in
resolving the motion cannot consider
Accused may, AT or BEFORE facts contrary to those alleged in the
arraignment, move for a bill of information or which do not appear on
particulars to enable him properly to the face of the information, except
plead and to prepare for trial. those admitted by the prosecution.

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165
therein are to the effect that the facts

GENERAL RULE: The accused may move charged in the information do not
to quash the complaint or information at constitute an offense.
any time BEFORE entering his plea.
EXCEPTION - Instances where a motion RESOLUTION OF A MOTION TO QUASH
to quash may be filed AFTER plea: A motion to quash must be resolved
1. failure to charge an offense BEFORE trial and cannot defer the
2. lack of jurisdiction over the hearing and determination of said
offense charged motion until trial on the merits as it
3. extinction of the offense or would impair the right of the accused to
penalty speedy trial.
4. the defendant has been in
former jeopardy. It may also be resolved at the
preliminary investigation since the
Motion to Demurrer to investigating officer or judge has the
Quash Evidence power to either dismiss the case or bind
filed before the filed after the the accused over for trial by the proper
defendant enters prosecution has court, depending on its determination of
his plea rested its case lack or presence of probable cause.
Does not go into based upon the
the merits of the inadequacy of Section 3. Grounds.
case but is the evidence 1. That the facts charged do not
anchored on adduced by the constitute an offense;
matters not prosecution in 2. That the court trying the case
directly related support of the has no jurisdiction over the
to the question accusation offense charged;
of guilt or 3. That the court trying the case
innocence of the has no jurisdiction over the
accused person of the accused;
Governed by governed by Rule 4. That the officer who filed the
Rule 117 of the 119 of the Rules information had no authority to
Rules of Criminal of Criminal do so;
Procedure Procedure 5. That it does not conform
substantially to the prescribed
form;
Section 2. Form and contents. 6. That more that one offense is
charged except when a single
FORM AND CONTENTS OF A MOTION TO punishment for various offenses
QUASH is prescribed by law;
1. in writing 7. That the criminal action or
2. signed by the accused or his liability has been extinguished;
counsel 8. That it contains averments
3. shall specify distinctly the which, if true would constitute a
factual and legal grounds legal excuse or justification; and
therefor. 9. That the accused has been
previously convicted or acquitted
The court shall consider no grounds of the offense charged, or the
other than those stated in the motion, case against him was dismissed
EXCEPT lack of jurisdiction over the or otherwise terminated without
offense charged and when the his express consent.
information does not charge an offense. Section 4. Amendment of complaint or
A motion to suspend the issuance of a information
warrant of arrest should be considered
as a motion to quash if the allegations

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166
If an alleged defect in the complaint or the court must state, in its order
information, which is the basis of a granting the motion, the release
motion to quash, can be cured by of the accused if he is in custody
amendment, the court shall order the or the cancellation of his bond if
amendment instead of quashing the he is on bail.
complaint or information. If, after the
amendment, the defect is still not 3. If the ground upon which
cured, the motion to quash should be the motion to quash was
granted. sustained is that the court has
NO jurisdiction over the offense,
Section 5. Effect of sustaining the the better practice is for the
motion to quash. court to remand or forward the
case to the proper court, not to
EFFECTS IF COURT SUSTAINS THE quash the complaint or
MOTION TO QUASH information.
1. If the ground of the
motion is either:  The prosecution may elevate to the
a) that the facts charged do Higher Courts an order granting a motion
not constitute an offense; or to quash.
b) that the officer who
filed the information had no PROCEDURE IF MOTION TO QUASH IS
authority to do so, or DENIED
c) that it does not conform 1. accused should plead;
substantially to the 2. accused should go to trial
prescribed form; or without prejudice to the special
d) that more than one defenses he invoked in the
offense is charged, motion;
the court may order that another 3. appeal from the judgment of
information be filed or an conviction, if any, and interpose
amendment thereof as the case the denial of the motion as an
may be within a definite period. error.
If such order is NOT MADE, or if
having been made, another An order denying a motion to quash is
information is NOT FILED within INTERLOCUTORY and NOT APPEALABLE.
a time to be specified in the Appeal in due time, as the proper
order, or within such time as the remedy, implies a previous conviction as
court may allow, the accused, if a result of a trial on the merits of the
in custody, shall be discharged case and does not apply to an
therefrom, unless he is also in interlocutory order denying a motion to
custody on some other charge. quash.
2. If the motion to quash is sustained The denial by the trial court of a motion
upon any of the following grounds: to quash CANNOT be the subject of a
a) that a criminal action or petition for certiorari, prohibition or
liability has been mandamus in another court of
extinguished; coordinate rank.
b) that it contains averments
which, if true, would
constitute a legal excuse or
justification; or
c) that the accused has been
previously convicted or Section 6. Order sustaining the motion
acquitted of the offense to quash not a bar to another
charged, prosecution.

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167
included in the first offense

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

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168
from the same act or omission 2. consent of the accused

constituting the former charge. 3. notice to the offended
2. The facts constituting the graver party
charge became known or were
discovered only after a plea was If a case is provisionally dismissed with
entered in the former complaint the consent of the prosecutor and the
or information. offended party, the failure to reinstate
3. The plea of guilty to the lesser it within the given period will make the
offense was made without the dismissal permanent.
consent of the prosecutor and of
the offended party; except when PERIOD FOR REINSTATEMENT:
the offended party failed to a. offenses punishable by
appear during the arraignment. imprisonment not exceeding 6
years = ONE YEAR
In any of these instances, such period of b. offenses punishable by
the sentence as may have been served imprisonment of more than 6
by the accused under the former years = TWO YEARS
conviction shall be credited against and
deducted from the sentence he has to Otherwise the dismissal shall be removed
serve should he be convicted under the from being provisional and becomes
subsequent prosecution. permanent.
B. SAME EVIDENCE TEST - whether the Section 9. Failure to move to quash or

facts as alleged in the second to allege any ground therefor.
information, if proved, would have
been sufficient to sustain the former All grounds for a motion to quash are
information, or from which the WAIVED if NOT seasonably raised,
accused may have been acquitted or EXCEPT:
convicted. a) when the information does not
charge an offense;
Section 8. Provisional dismissal. b) lack of jurisdiction of the court;
c) extinction of the offense or
GENERAL RULE: Where the case was penalty; and
dismissed “provisionally” with the d) double jeopardy.
consent of the accused, he CANNOT
invoke double jeopardy in another
prosecution therefor OR where the case RULE 118
was reinstated on a motion for PRE-TRIAL
reconsideration by the prosecution.
EXCEPTIONS: Where the dismissal was Section 1. Pre-trial; mandatory in
actually an acquittal based on: criminal cases.
a) lack or insufficiency of the
evidence; or Pre-trial is MANDATORY in all criminal
b) denial of the right to speedy cases.
trial, hence, even if the accused
gave his express consent to such The court shall after arraignment and
dismissal or moved for such within 30 days from the time the court
dismissal, such consent would be acquires jurisdiction over the person of
immaterial as such dismissal is the accused, unless a shorter period is
actually an acquittal. provided for by special laws or circular
of the Supreme Court, order a pre-trial.
REQUISITES
1. consent of the
prosecutor

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169
MATTERS CONSIDERED IN PRE-TRIAL Section 3. Non-appearance at pre-trial

CONFERENCE conference.
a) plea bargaining;
b) stipulation of facts; The court may impose proper sanctions
c) marking for identification of and penalties for non-appearance at pre-
evidence of the parties; trial conference by the counsel for the
d) waiver of objections to accused or the prosecutor without
admissibility of evidence; acceptable excuse.
e) modification of the order of trial
if the accused admits the charge The sanctions or penalty may be in the
but interposes a lawful defense; form of reprimand, fine or
f) such matters as will promote a imprisonment. Inasmuch as this is similar
fair and expeditious trial of the to indirect contempt of court, the
criminal and civil aspects of the penalty for indirect contempt may be
case. (Sections. 2 & 3, Circ. 38- imposed.
98).
PURPOSE
Plea bargaining – the process whereby To enforce the mandatory requirement
the accused, the offended party and the of pre-trial in criminal cases.
prosecution work out a mutually
satisfactory disposition of the case The accused is not the one compelled to
subject to court approval. It usually appear, but only the counsel for the
involves the defendant’s pleading guilty accused or the prosecutor. The principal
to a lesser offense or to only one or reason why accused is not included in
some of the counts of a multi-count the mandatory appearance is the fear
indictment in return for a lighter that to include him is to violate his
sentence than that for the graver constitutional right to remain silent.
charge.
Section 4. Pre-trial order.
Section 2. Pre-trial agreement.
After the pre-trial, the court issues an
Requisites before the pre-trial order reciting actions taken, facts
agreement can be used as evidence: stipulated and evidence marked, and
1. they are reduced to writing thereafter the trial on the merits will
2. the pre-trial agreement is signed proceed on matters not disposed of
by the accused and his counsel. during the pre-trial.
The requirement in section 2 is intended To prevent manifest injustice, however,

to safeguard the right of the accused the pre-trial order may be modified by
against improvident or unauthorized the court, upon its own initiative or at
agreements or admissions which his the instance of any party.
counsel may have entered into, or which
any person may ascribe to the accused
without his knowledge, as he may have RULE 119
waived his presence at the pre-trial TRIAL
conference.
Section 1. Time to prepare for trial.
The omission of the signature of the
accused and his counsel, as mandatorily Trial - the examination before a
required by the rules, renders the competent tribunal according to the laws
stipulation of facts inadmissible in of the land, of the facts put in issue in a
evidence. case for the purpose of determining such
issue.

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

system as a mode of judicial fact-finding
and adjudication conducted with speed Kinds:
and dispatch so that trials are held on a. criminal
the scheduled dates without b. administrative
postponement, the factual issues for c. contempt of court
trial well-defined at pre-trial and the
whole proceedings terminated and ready
for judgment within 90 days from the

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

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172
court may commit him to prison until he REQUISITES FOR DISCHARGE

complies or is legally discharged after his 1. absolute necessity for the
testimony has been taken. testimony
2. no other direct evidence
Section 15. Examination of witness for available for the prosecution
the prosecution. 3. testimony can be substantially
corroborated in its material
The conditional examination of points
prosecution witnesses shall be conducted 4. accused not the most guilty
before the judge or the court where the 5. accused has never been
case is pending and in the presence of convicted of an offense involving
the accused, unless he waived his right moral turpitude
after reasonable notice. The accused
will have the right to cross-examine such Absence of any of the requisites for the
prosecution witness, hence such discharge of a particeps criminis is a
statements of the prosecution witnesses ground for objection to the motion for
may thereafter be admissible in behalf his discharge, BUT such objection must
of or against the accused (Regalado, p. be raised BEFORE the discharge is
460). ordered.
Section 16. Trial of several accused EFFECTS OF DISCHARGE

1. Evidence adduced in support of the
GENERAL RULE: discharge shall automatically form
When two or more persons are jointly part of the trial;
charged with an offense, they shall be 2. If the court denies the motion to
tried jointly. This rule is so designed as discharge the accused as state
to preclude a wasteful expenditure of witness, his sworn statement shall be
judicial resources and to promote an inadmissible in evidence;
orderly and expeditious disposition of 3. Discharge of accused operates as an
criminal prosecutions. acquittal and bar to further
EXCEPTION: prosecution for the same offense.
The court, upon motion of the fiscal or EXCEPTIONS:
of any of the defendants, may order a 1. If the accused fails or refuses to
separate trial for one or more accused. testify against his co-accused in
The granting of a separate trial when accordance with his sworn
two or more defendants are jointly statement constituting the basis
charged with an offense is purely of the discharge
discretionary with the trial court. 2. Failure to testify refers
exclusively to defendant’s will or
The motion for separate trial must be filed fault
BEFORE the commencement of the trial 3. Where an accused who turns
and cannot be raised for the first time on state’s evidence on a promise of
appeal. If a separate trial is granted, the immunity but later retracts and
testimony of one accused imputing the fails to keep his part of the
crime to his co-accused is not admissible agreement, his confession of his
against the latter. In joint trial, it would be participation in the commission
admissible if the latter had the opportunity of the crime is admissible as
for cross-examination. evidence against him.
Section 17. Discharge of accused to be Section 19. When mistake has been
state witness. made in charging the proper offense.
Motion to discharge should be made by When the offense proved is neither

the prosecution BEFORE resting its case. included in, nor does it include, the

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173
offense charged and is different The arrest rule allows the accused in a
therefrom, the court should dismiss the criminal case to present evidence even
action and order the filing of a new after a motion to dismiss PROVIDED the
information charging the proper offense. demurrer was made with the express
consent of the court.
This rule is predicated on the fact that
an accused person has the right to be The filing of the motion to dismiss
informed of the nature and cause of the WITHOUT leave of court results in the
accusation against him, and to convict submission of the case for decision on
him of an offense different from that the basis of the evidence on record and
charged in the complaint or information does not lie from such order denying the
would be an unauthorized denial of that motion to dismiss.
right. (U.S. vs. Campo, 23 Phil. 369)
If said motion to dismiss is sustained,
Section 20. Appointment of acting such dismissal being on the merits is
prosecutor. equivalent to an acquittal, hence the
See Section 5, Rule 110. prosecution cannot appeal as it would
place the accused in double jeopardy.
Section 21. Exclusion of the public.
An order denying a demurrer to evidence
GENERAL RULE: being interlocutory is NOT APPEALABLE.
The accused has the right to a public
trial and under ordinary circumstances, Section 24. Reopening.
the court may not close the door of the
courtroom to the general public. At any time BEFORE finality of the
EXCEPTION: judgment of conviction, the judge may,
Where the evidence to be produced motu propio or upon motion, with
during the trial is of such character as to hearing in either case, reopen the
be offensive to decency or public proceedings to avoid miscarriage of
morals, the court may motu propio justice. The proceedings shall be
excludes the public from the courtroom. terminated within 30 days from the
order granting it.
Section 22. Consolidation of trials of
related offenses.
RULE 120
This contemplates a situation where JUDGMENT
separate informations are filed:
1. for offenses founded on the Section 1. Judgment; definition and
same facts; form.
2. for offenses which form part of a
series of offenses of similar Judgment - the adjudication by the
character court that the accused is guilty or not
guilty of the offense charged and the
Section 23. Demurrer to evidence. imposition of the proper penalty and
civil liability provided for by the law.
After the prosecution rests its case, the
court may dismiss the action on the It is not necessary that the judge who
ground of insufficiency of evidence: tried the case be the same judicial
1.on its own initiative after officer to decide it. It is sufficient if he
giving the prosecution the be apprised of the evidence already
opportunity to be heard; or presented by a reading of the transcript
2.upon demurrer to evidence of the testimonies already introduced, in
filed by the accused with or the same manner as appellate courts
without leave of court. review evidence on appeal.

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Section 2. Contents of the motion of the accused on the ground

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

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An offense charged necessarily includes

another when some essential elements A judgment of acquittal becomes final
or ingredients of the offense charged immediately after promulgation and
constitute the offense proved, or when cannot be recalled for correction or
the essential elements or ingredients of amendment.
the offense charged constitute or form
part of those constituting the offense The prosecutor cannot ask for the
proved, then one offense is included in modification or setting aside of a
the other. judgment of conviction because the rules
clearly provide that a judgment of
Section 6. Promulgation of judgment. conviction may be modified or set aside
by the court rendering upon motion of
Promulgation of judgment - official the accused.
proclamation or announcement of
judgment. It consists of reading the The trial court can validly amend the
judgment or sentence in the presence of civil portion of its decision within 15
the accused and any judge of the court days from promulgation thereof even
rendering the judgment. though the appeal had in the meantime
already been perfected by the accused
RULES ON THE VALIDITY OF from judgment of conviction.
PROMULGATION OF JUDGMENT:
1. The judgment must have been The trial court may lose jurisdiction over
rendered and promulgated the judgment even BEFORE the lapse of
during the incumbency of the 15 days:
judge who signed it. 1. when the defendant voluntarily
2. The presence of counsel during submits to the execution of the
the promulgation of judgment is judgment;
not necessary. 2. when the defendant perfects his
appeal;
Effect of Promulgation of Judgment in 3. when the accused withdraws his
Absentia – he shall lose all remedies appeal;
available in these Rules against the 4. when the accused expressly
judgment and the court shall order his waives in writing his right to
arrest. appeal;
5. when the accused files a petition
Section 7. Modification of for probation.
judgment.
Section 8. Entry of judgment.
Upon motion of the accused, a judgment
of conviction may be modified or set The final judgment of the court is
aside by the court BEFORE it has become carried into effect by a process called
final or BEFORE an appeal has been “mittimus”.
perfected.
Mittimus - A process issued by the court
A judgment becomes final: after conviction to carry out the final
a. when the period for perfecting judgment, such as commanding a prison
appeal an appeal has lapsed; warden to hold the accused in
b. when the sentence is partially or accordance with the terms of the
totally satisfied or served; judgment.
c. when the accused expressly
waives in writing his right to Section 9. Existing provisions governing
appeal; and suspension of sentence, probation and
d. when the accused applies for parole not affected by this Rule.
probation.

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1. When the defendant voluntarily

RULE 121 submits to the execution of the
NEW TRIAL OR RECONSIDERATION sentence
2. When the defendant perfects his
Section 1. New trial or reconsideration. appeal. The moment the appeal
is perfected the court a quo
New trial - the rehearing of a case loses jurisdiction over it, except
already decided but before the judgment for the purpose of correcting
of conviction therein rendered has clerical errors.
become final, whereby errors of law or
irregularities are expunged from the New Trial Reopening of the
record or new evidence is introduced, or case
both steps are taken. Filed after judgment made by the court
is rendered but before the judgment
A motion for new trial or reconsideration before the finality is rendered in the
should be filed with the trial court thereof exercise of sound
within 15 days from the promulgation of discretion
the judgment and interrupts the period At the instance or does not require the
for perfecting an appeal from the time with the consent of consent of the
of its filing until notice of the order the accused accused; may be at
overruling the motion shall have been the instance of either
served upon the accused or his counsel. party who can
A motion for the reconsideration of the thereafter present
judgment may be filed in order to additional evidence
correct errors of law or fact in the
judgment. It does not require any Section 2. Grounds for new trial.
further proceeding.
GROUNDS FOR A NEW TRIAL IN
A new trial be granted at any time CRIMINAL CASES:
before the judgment of conviction 1. errors of law or irregularities
becomes final: committed during the trial
1. on motion of the accused prejudicial to the substantial
2. on motion of the court but with the rights of the accused.
consent of the accused 2. new and material evidence
discovered.
The award of new trial or taking of
additional evidence rests upon the sound REQUISITES BEFORE A NEW TRIAL MAY
discretion of the court. (People vs. BE GRANTED ON THE GROUND OF
Acosta, 98 Phil. 642) NEWLY DISCOVERED EVIDENCE:
1. that the evidence was
Once the appeal is perfected, the trial discovered after trial;
court steps out of the case and the 2. that such evidence could not
appellate court steps in. Should it come have been discovered and
to pass then that during the pendency of produced at the trial even with
the appeal, new and material evidence, the exercise of reasonable
for example, have been discovered, the diligence;
accused may file a motion for new trial 3. that it is material not merely
with the appellate court. cumulative, corroborative or
impeaching; and
Cases when the trial court lose 4. the evidence is of such a weight
jurisdiction over its sentence even that it would probably change
before the lapse of 15 days: the judgment if admitted.

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Mistakes or errors of counsel in the 5. Notice of the motion for new

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

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

An appeal in a criminal case opens the
whole case for review and this includes HOW APPEAL IS TAKEN
the review of the penalty, indemnity, 1. Appeal to the Regional Trial
and the damages involved. Court: by filing a notice of
Consequently, on appeal, the appellate appeal with the court that
court may increase the penalty, rendered the judgment or order
indemnity, or the damages awarded by appealed from and serving a
the trial court, although the offended copy to the adverse party
party had not appealed from said award,

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179
2. Appeal to the Court of Appeals Section 4. Service of notice of

from decision of the Regional appeal.
Trial Court in the exercise of its
original jurisdiction: by filing a PUBLICATION OF NOTICE OF
notice of appeal with the court APPEAL
which rendered the judgment or If copy of the notice of appeal cannot be
order appealed from and serving served on the adverse party or his
a copy to the adverse party counsel, it may be done by publication.
3. Appeal to the Court of Appeals in Service by publication is made in a
cases decided by Regional Trial newspaper of general circulation in the
Court in the exercise of its vicinity once a week for a period not
appellate jurisdiction: by exceeding 30 days.
petition for review
4. Appeal to the Court of Appeals in Section 5. Waiver of notice.
cases where penalty imposed is
life imprisonment or where a The appellee may waive his right to a
lesser penalty is imposed but notice that an appeal has been taken.
involving offenses committed on HOWEVER, the appellate court may, in
the same occasion or arising out its discretion, entertain an appeal
of the same occurrence that notwithstanding failure to give such
gave rise to the more serious notice if the interests of justice so
offense for which the penalty of require. (Llamas vs. Moscoso, 95 Phil.
death or life imprisonment is 735)
imposed: by filing a notice of
appeal with the Court of Section 6. When appeal to be
Appeals. taken.
5. Death penalty: automatic review
by the Court of Appeals. (A.M. An appeal must be filed within 15 days
No. 00-5-03-SC, October 15, counted from the promulgation or notice
2004) of the judgment or order appealed from.
6. Other appeals to the Supreme The period for appeal is interrupted from
Court: by petition for review on the time the motion for new trial is filed
certiorari. up to the receipt by the accused of the
notice of the order “overruling the
Error of Judgment Error of motion”.
Jurisdiction
the court may renders an order of Section 8. Transmission of papers to
commit in the judgment void or appellate court upon appeal.
exercise of voidable
jurisdiction Within 5 days from the filing of the
reviewable by appeal reviewable by notice of appeal, the clerk of the court
certiorari with whom the notice of appeal was
filed must transmit to the clerk of court
Modes of review of the appellate court the complete
The Rules of Court recognize 4 modes by record of the case, together with said
which the decision or final order of the notice.
court may be reviewed by a higher
tribunal, viz.: Section 10. Transmission of records
1. ordinary appeal in case of death penalty.
2. petition for review
3. petition for review on certiorari In case of death penalty, the records
4. automatic appeal shall be forwarded to the Court of
Appeals for automatic review and
judgment, within 20 days but not earlier

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180
than 15 days after the promulgation of response of the appellant to his

the h e inquiry.
the judgment or notice of denial of any

motion for new trial or reconsideration. RULE 123
The transcript shall also be forwarded PROCEDURE IN THE MUNICIPAL TRIAL
within 10 days after the filing thereof by COURTS
the stenographic reporter (A.M. No. 00-
5-03-SC, Oct. 15, 2004). Section 1. Uniform Procedure.
Section 12. Withdrawal of appeal. Procedure to be observed in

Metropolitan Trial Courts, Municipal
An appellant may withdraw his appeal Trial Courts and Municipal Circuit Trial
BEFORE the record has been forwarded Courts: They shall observe the same
by the clerk of court to the proper procedure as in the Regional Trial Courts
appellate court as provided by Section 8, EXCEPT:
in which case the judgment shall become 1. where a particular provision
final. expressly or impliedly applies
only to the Metropolitan Trial
The court may also, in its discretion, Courts, Municipal Trial Courts
allow the appellant to withdraw his and Municipal Circuit Trial Courts
appeal, PROVIDED a motion to that or Regional Trial Courts
effect is filed BEFORE the rendition of 2. In criminal cases governed by the
the judgment in the case on appeal. Rules on Summary Procedure in
Special Cases adopted on August
Once appeal is withdrawn, the decision 1, 1983 and revised on November
or judgment appealed from becomes at 15, 1991.
once final and executory. (People vs.
Dueño, 90 SCRA 23)
RULE 124
Section 13. Appointment of counsel PROCEDURE IN THE COURT OF APPEALS
de oficio for accused on appeal.
Section 2. Appointment of counsel
The right to counsel de oficio does not de oficio for the accused.
cease upon the conviction of an accused
by a trial court but continues, even REQUISITES BEFORE AN ACCUSED CAN
during appeal. BE GIVEN A COUNSEL DE OFICIO ON
APPEAL
Duties of the clerk of the trial court to 1. that he is confined in prison
the appellant who is confined in prison 2. without counsel de parte on
upon the presentation of notice of appeal
appeal: 3. signed the notice of appeal
1. he shall ascertain from the himself
appellant, whether he desires
the Court of Appeals or the EXCEPTIONS: An accused-appellant not
Supreme Court to appoint an confined to prison can have a counsel de
attorney to defend him de oficio if requested by him in the
oficio; appellate court within 10 days from
2. he shall transmit with the receipt of the notice to file brief and the
record, upon a form to be right thereto is established by affidavit.
prepared by the clerk of the
appellate court, a certificate of Section 3. When brief for the
compliance with this duty of the appellant to be filed.

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181
7 copies of the brief shall be filed within Issues that were never raised in the
30 days from receipt by the appellant or proceedings before the trial court cannot
be considered and passed upon on
appeal.
his counsel of the notice from the clerk
of court of the Court of Appeals that the Section 8. Dismissal of appeal for
evidence, oral and documentary, is abandonment or failure to prosecute.
already attached to the record.
GROUNDS FOR DISMISSAL OF APPEALS
Brief - literally means a short or 1. Failure on the part of the
condensed statement. The purpose of appellant to file brief within the
the brief is to present to the court in reglementary period, except
concise form the points and questions in when he is represented by a
controversy, and by fair argument on the counsel de oficio;
facts and law of the case, to assist the 2. Escape of the appellant from
court in arriving at a just and proper prison or confinement;
conclusion. 3. When the appellant jumps bail;
and
PURPOSE 4. Flight of the appellant to a
To present to the court in concise form foreign country during the
the points and questions in controversy pendency of the appeal.
and, by fair argument on the facts and
law of the case, to assist the court in DISMISSAL OF APPEAL; NEED OF NOTICE
arriving at a just and proper conclusion. TO APPELLANT
The Court of Appeals may dismiss motu
Section 4. When brief for appellee to propio or on motion by appellee an
be filed; reply brief of the appellant. appeal for failure on the part of the
appellant to file his brief on time, BUT it
The appellee shall file 7 copies of the must have a notice served upon the
brief with the clerk of court within 30 appellant of the action to be taken by
days from receipt of the brief of the said court before dismissing motu propio
appellant accompanied by proof of the appeal.
service of 2 copies thereof upon the
appellant Effect of Escape of Accused;
Abandonment of Appeals
Section 5. Extension of time for filing 1. If the convict escapes from
briefs. prison or confinement or refuses
to surrender to the proper
Not allowed EXCEPT for good and authorities, jumps bail or flees
sufficient cause and only if the motion to a foreign country he is
for extension is filed before the deemed to have abandoned his
expiration of the time sought to be appeal AND the judgment of the
extended. court below becomes final.
2. In that case, the accused cannot
Section 7. Contents of briefs. be afforded the right to appeal
UNLESS (a) he voluntarily
Unlike the procedure in civil cases, it has submits to the jurisdiction of the
been held that it is not essential for the court or (b) is otherwise arrested
accused to make assignment of errors in within 15 days from notice of the
his brief, as on appeal, the whole record judgment against him.
of the case is submitted to and
reviewable by the appellate court. Section 9. Prompt disposition of
cases.

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182
It is discretionary for the appellate court PURPOSE

whether to order a hearing of the case To speed up the disposition of court
before it or decide the appeal solely on cases.
the evidence submitted to the trial
court.
If the Court of Appeals chose not to hear

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

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183
The only-one-motion-for-reconsideration
Once an appeal is perfected, the trial rule does not apply where the first
court steps out and the appellate court motion for reconsideration resulted in a
steps in. A motion for new trial must reversal or substantial modification of
then be filed with the appellate court, the original decision or final resolution.
not with the court from whose judgment The party adversely affected thereby
the appeal is taken. may file a motion for reconsideration.
Section 16. Rehearing or Section 17. Judgment transmitted and
reconsideration. filed in trial court.
A motion for reconsideration shall be Transmittal of judgment to court a quo

filed within 15 days from notice of the After the judgment has been entered, a
decision or final order of the Court of certified copy of the entry should be
Appeals. transmitted to the clerk of the court of
origin.
A re-hearing is NOT a matter of right but
a privilege to be granted or not, as the The copy of the entry serves as the
court sees fit, the matter being solely formal notice to the court from which
within its discretion. the appeal was taken of the disposition
of the case in the appellate court, so
New questions CANNOT be presented for that the judgment may be executed
the first time on a motion for rehearing, and/or placed or noted in the proper
especially where they are inconsistent file.
with positions taken on the original
hearing, or waived on the original Sec. 18. Application of certain rules in
submission of the case. civil to criminal cases.
A second motion for rehearing or The corresponding amendment was made

reconsideration of a final judgment or pursuant to the changes introduced
order is NOT allowed because if parties under the 1997 Rules of Procedure.
are allowed to file as many motions for
rehearing or reconsideration as their Rule 47 (Annulment of Judgments of
discretion or caprice suits, the Final Judgment and Resolutions) DOES
proceedings would become NOT APPLY TO CRIMINAL CASES. The
undeterminable and unnecessarily appropriate remedy for lack of
voluminous. jurisdiction or extrinsic fraud is
CERTIORARI (Rule 65) or HABEAS
The MITTIMUS is the final process of CORPUS (Rule 102).
carrying into effect the decision of the
appellate court and the transmittal
thereof to the court of origin is RULE 125
predicated upon the finality of the PROCEDURE IN THE SUPREME COURT
judgment. It shall be stayed during the
pendency of the motion for rehearing or Section 1. Uniform Procedure.
reconsideration. The procedure in the Supreme Court in
original, as well as in appealed cases, is
A motion for reconsideration of its the same as in the Court of appeals,
judgment or final resolution shall be EXCEPT when otherwise provided by the
resolved by the Court of Appeals within Constitution or the law.
90 days from the time it is submitted for
resolution, and no 2nd motion for A case may reach the Supreme Court in
reconsideration for the same party shall the following manner:
be entertained. 1. automatic review
2. ordinary appeal

Special
184
3. petitioner for review on account would after the result as

certiorari it would give rise to reasonable
doubt to acquit the accused.
EFFECT OF DIRECT APPEAL TO THE Question of law - when the doubt or

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

Special
185
custody that he may search personal

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

Special
186
3. HOWEVER, if the criminal action be searched and the persons or

has been filed, the application things to be seized;
shall only be made in the court 6. it shall issue only for one specific
where the criminal action is purpose; and
pending. 7. it must not have been issued
Section 3. Personal property to be more than 10 days prior to the
seized. search made pursuant thereto.
Kinds of property to be seized by virtue A search warrant shall not issue but upon
of a warrant: probable cause in connection with one
1. subject of the offense; specific offense.
2. proceeds or fruits of the offense;
3. the means used or intended to Party who may question validity of
be used for committing an search and seizure:
offense. Well settled is the rule that the legality
The rule does not require that the of a seizure can be contested only by the
property to be seized should be owned party whose rights have been impaired
by the person against whom the search thereby, and that the objection to an
warrant is directed. It may or may not unlawful search and seizure is purely
be owned by him. personal and cannot be availed of by
third parties.
In a search incidental to an arrest even REMEDIES FROM AN UNLAWFUL SEARCH

WITHOUT a warrant the person arrested 1. a motion to quash the search
may be searched for: warrant, and
1. dangerous weapons, and 2. a motion to suppress as evidence
2. anything which may be used the objects illegally taken.
as proof of the commission of an (EXCLUSIONARY RULE – any
offense. evidence obtained through
unreasonable searches and
seizures shall be inadmissible for
Section 4. Requisites for issuing Search any purpose in any proceeding)
warrant. 3. Replevin, if the objects are
legally possessed.
REQUISITES
1. must be issued upon probable The remedies are alternative; if a
cause; motion to quash is denied, a motion to
2. probable cause must be suppress cannot be availed of
determined by the issuing judge subsequently.
personally;
3. the judge must have personally Where the search warrant is a PATENT
examined, in the form of NULLITY, certiorari lies to nullify the
searching questions and answers, same.
the applicant and his witnesses The illegality of the search warrant does
and taken down their written not call for the return of the things
depositions; seized, the possession of which is
4. the search warrant must prohibited by law. HOWEVER, those
particularly describe or identify personalities seized in violation of the
the property to be seized as far constitutional immunity whose
as the circumstances will possession is not of itself illegal or
ordinarily allow; unlawful ought to be returned to their
5. the warrant issued must rightful owner or possessor.
particularly describe the place to

Special
187
Any evidence obtained in violation of the determine the existence or non-

constitutional immunity against existence of a probable cause.
unreasonable searches and seizures are
inadmissible for any purpose in any Section 6. Issuance and form or
proceeding (Section 2, Article III, 1987 search warrant.
Constitution).
ISSUANCE OF SEARCH WARRANT
When may a search warrant be said to The Constitution ordains that no warrant
particularly describe the thing to be shall issue but upon probable cause
seized: supported by oath or affirmation.
1. the description therein is as
specific as the circumstances FORM OF SEARCH WARRANT
will allow; The search warrant must be in writing
2. when it expresses a conclusion of and must contain such particulars as the
fact by which the warrant may name of the person against whom it is
be guided; or directed, the offense for which it was
3. when the things described are issued, the place to be searched and the
limited to those which bear a specific things to be seized.
direct relation to the offense for
which the warrant is issued. An application for a search warrant is
heard ex-parte. It is neither a trial nor a
PROBABLE CAUSE - facts and part of the trial. The examination or
circumstances which could lead a investigation, which must be under oath
reasonable, discreet and prudent man to may not be in public. It may be even
believe that the property subject of an held in the secrecy of the chambers. It
offense is in the place sought to be must be under oath and must be in
searched. writing.
”MULTI FACTOR BALANCING TEST” in Section 8. Search of house, room, or

determining Probable Cause: premises to be made in presence of
One which requires the officer to weigh two witnesses.
the manner and intensity of the
interference on the right of the people, In order to insure that the execution of
the gravity of the crime committed, and the warrant will be fair and reasonable,
the circumstances attending the and in order to insure that the officer
incident. conducting the search shall NOT exceed
his authority or use unnecessary severity
Section 5. Examination of complainant; in executing the search warrant, as well
record. as for the officer’s own protection
against unjust accusations, it is required
Manner on how a judge should examine a that the search be conducted in the
witness to determine the existence of presence of the:
probable cause: 1. lawful occupant of the place to
1. the judge must examine the be searched,
witnesses personally 2. or any member of his family,
2. the examination must be under 3. or in their absence, in the
oath presence of two witnesses of
3. the examination must be sufficient age and discretion
reduced to writing in the form of residing in the same locality.
searching questions and answers This requirement is mandatory.
Such personal examination is necessary Section 9. Time of making search.

in order to enable the judge to
GENERAL RULE:

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

Special
189
can quickly move out of the jurisdiction appropriate higher court by the party
before such warrant could be secured. aggrieved.
The remedy for questioning the validity

of a search warrant can only be sought in
the court that issued it, not in the sala
of another judge of concurrent Rule 127

jurisdiction. Except where there is PROVISIONAL REMEDIES IN CRIMINAL
already a case filed, the latter shall CASES
acquire jurisdiction to the exclusion of
other courts. Section 1. Availability of provisional
remedies.
Waiver of legality and admissibility
Objection to the legality of the search NATURE OF PROVISIONAL REMEDIES
warrant as to the admissibility of the 1. Those to which parties litigant may
evidence obtained or deemed waived resort for the preservation or
where no objection of the search protection of their rights or interests
warrant was raised during the trial of the and for no other purposes during the
case nor to the admissibility of the pendency of the action.
evidence obtained through said warrant. 2. They are applied to a pending
Section 14. A motion to quash a search litigation for the purpose of securing
warrant or to suppress evidence; the judgment or preserving the
where to file. status quo, and in some cases after
judgment, for the purpose of
IN WHAT COURT MAY A MOTION TO preserving or disposing of the
QUASH BE FILED: subject matter.
1. before the court that issued the
warrant; The requisites and procedure for availing
2. under the CRIMINAL CASE RULE, of these provisional remedies shall be
all the incidents arising from the the same as those for civil cases.
Search Warrant should be
consolidated in the court where The provisional remedies under this rule
the criminal case is pending; are proper only where the civil action for
3. under the ALTERNATIVE REMEDY the recovery of civil liability ex delicto
RULE, with the court which has not been expressly waived or the
issued the search warrant. In this right to institute such civil action
motion, all grounds for objection separately is not reserved in those cases
existent or available and known where reservation may be made.
at the time MUST BE INVOKED,
otherwise, they are deemed Where the civil action arising from a
waived. criminal offense is suspended by the
filing of the criminal action, the court
The legality of the search warrant should wherein said civil case is pending can
be addressed to the court issuing the issue the aforesaid auxiliary writs since
search warrant and not to any other such orders do not involve a
court to foster judicial stability determination of the merits of the case.
(Pagkalinawan vs. Gomez, 23 SCRA (Babala vs. Abaño, 90 Phil. 827)
1275).
Kinds of provisional remedies
Filing of motion to quash is without 1. attachment
prejudice to any proper recourse to the 2. injunction
3. receivers

Special
190
4. delivery of personal property could be enough to enable the defendant

5. support pendente lite to abscond or dispose of his property
before a writ of attachment issue and
Section 2. Attachment the only requisites from the issuance of a
writ of preliminary attachment are the
Who may apply for preliminary affidavit and bond of applicant.
attachment (Mindanao Savings, etc. vs. Court of
The aggrieved party in whose behalf the Appeals, 172 SCRA 480)
civil aspect of the criminal action is
prosecuted may apply for the issuance of Attachment may be availed of ONLY
a writ of preliminary attachment, he when the civil action arising from the
being the person primarily and directly
REPUBLIC OF THEcrime
interested thereby. The prosecutor in
has not been expressly waived or
PHILIPPINES
not reserved and only in the following
NATIONAL CAPITAL JUDICIAL REGION
the criminal action may make such an cases:
REGIONAL TRIAL COURT
application in behalf of or for the a. 911
when the accused is about to
MANILA, BRANCH
protection of the interest of the abscond from the Philippines;
offended party. b. when the criminal action is based on
PEOPLE OF THE PHILIPPINES a claim for money or property
It was held by PLAINTIFF,
the Supreme Court that embezzled or fraudulently
the public prosecutor has the authority misapplied or converted to the use
to apply for preliminary
-VERSUS- attachment as of the accused who is a public
may be necessary to protect the interest
CRIM. CASE NO. ___________ officer or a corporate officer or an
of the offended party. attorney, broker, or agent or clerk in
HANNAH MAE VENTURA the course of employment or by a
Notice to adverse party,
ACCUSED. not required person in a fiduciary capacity;
No notice to the adverse party, or c. when the accused has concealed,
hearing on the application is required removed or about to dispose of his
before a writ of preliminary attachment property;
may issue as a hearing would defeat the d. 2when the accused resides abroad.
INFORMATION
purpose of the provisional remedy. The
The such
time which undersigned
a hearingaccuses
would HANNAH
take, MAE VENTURA of the crime of MURDER 3,
committed as follows: CRIMINAL PROCEDURE: Information
That on or about December 5, 20044, in Batute, Manila5, Philippines, within the jurisdiction
of this court, the said accused did, then and there, with malice aforethought and with
deliberate intent to take the life of RENEE JOI ZABALA6, willfully, unlawfully, feloniously,
suddenly, unexpectedly, and treacherously attack the latter with a metal fork, first
wounding her in the back, and afterwards, when enfeebled and unable to defend herself,
again stabbed her in the neck, both wounds being necessarily mortal7, thereby causing the
direct and immediate death of said RENEE JOI ZABALA.
CONTRARY TO LAW.
April 28, 2005.
__Sgd. Fiscal Happy__
(City/Provincial Fiscal)8
Name of the accused, Sec. 7, Rule 110.

2
Information, Sec. 4, Rule 110.
3
RDesignation
EMEDIAL LAW C ofOMMITTEE
the offense, Sec. 8, Rule 110.
4 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Date of commission of the offense, Sec. 11, Rule 110.
5Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Place of commission of the offense, Sec. 10, Rule 110.
Special
6
Name of the
Proceedings); offended
Jeenice party,
de Sagun Sec.
(Criminal 12, RuleElaine
Procedure); 110.Masukat (Evidence)
7
Cause of the accusation, Sec. 9, Rule 110.
8
Subscribed by the prosecutor, Sec. 4, Rule 110.

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MEMORY AID IN REMEDIAL LAW

Criminal Jurisdiction – power of the 2. Determined by the law in force

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

3. Other public officer FULL DISCRETION AND CONTROL OF

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

WHO MAY PROSECUTE offended party, even if the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Section 6. Sufficiency of complaint or The information or complaint must state

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MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. Special Complex crimes or information upon the filing of a new

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MEMORY AID IN REMEDIAL LAW

the accused could action must be instituted and tried in

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MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

 Counterclaims, cross-claims, third accused is acquitted (Sapiera vs.

PRIMACY OF CRIMINAL ACTION OVER  The extinction of the civil liability

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MEMORY AID IN REMEDIAL LAW

Section 4. Effect of death on civil 1. Office of the prosecutor;

 However, the independent civil action Section 1. Preliminary Investigation

Prejudicial Question - that which arises Preliminary Investigation is required to

ELEMENTS OF A PREJUDICIAL QUESTION HOWEVER, the accused can ask for

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MEMORY AID IN REMEDIAL LAW

PURPOSES 1. Provincial or city fiscal

Absence of preliminary investigation

REMEDIES OF THE ACCUSED IF THERE Section 3. Procedure

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MEMORY AID IN REMEDIAL LAW

If respondent cannot be subpoenaed, or

INSTANCES WHEN MTC MAY CONDUCT

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MEMORY AID IN REMEDIAL LAW

immediate custody in order not the RPC in the presence of his

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MEMORY AID IN REMEDIAL LAW

Section 9. Cases not requiring a judge after examination under

1. Evaluate the evidence A warrant of arrest has NO expiry date.

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MEMORY AID IN REMEDIAL LAW

Section 5. Arrest without warrant; voluntarily submitted himself to

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MEMORY AID IN REMEDIAL LAW

be arrested 2. when he and the cause immediately its

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MEMORY AID IN REMEDIAL LAW

Section 13. Arrest after escape or 4. recognizance

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MEMORY AID IN REMEDIAL LAW

for execution of the final The prosecution cannot adduce evidence