Complaint
- is a sworn written statement charging a person with Sufficiency of the complaint of information
an offense
- subscribed by:
1. offended party
2. any peace officer
3. other public officer
- it must be “sworn” and “written”
In whose name and against whom a complaint filed
- it is filed in the name of the People of the
Philippines and against all persons who appear to be
responsible for the offense involved
- the interest of the private complainant or the private
offended party is limited to the civil liability
- the complainant’s role is limited to that of a witness
for the prosecution
- the appeal of criminal case may only be undertaken
by the state through the solicitor general
- the offended party may appeal the civil aspect of the
case
Information
- accusation in writing charging a person with an
offense subscribed by the prosecutor and filed with
the court
- it not required to be sworn
- only a public officer described in the ROC “as a
prosecutor” is authorized to subscribe to the
information
- it is filed in the name of the People of the Philippines
against all persons who appear to be responsible for
the offense involved
- allegation in the information are crucial to the success
or failure of a criminal prosecution
- it is considered the battle ground in criminal
prosecution
Complaint Information
sworn written statement In writing
Subscribed by: Subscribed by the
1. offended party prosecutor
2. any public
officer
3. other public
officer
Infirmity of signature in the information
- if the original information was signed and filed by one
who had no authority to sign and file the same
- the dismissal of the information would not be a bar to
a subsequent prosecution under a subsequent valid
information
- an infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by
silence, acquiescence, or even by express consent
- such lack of authority on the part of the officer is a
ground for the quashal of the information
1. A complaint or information is deemed sufficient if it
contains:
a. Name of the accsued
b. Designation of the offense
c. Acts or omissions
d. Name of the offended party
e. Approximate date of the commission of the
offense
f. Place where the offense was committed
Test for sufficiency of the complaint or information
- Whether the crime described in intelligible terms with
such particularity as to apprise the accused, with
reasonable certainty, of the offense charged to enable
the accused to suitably prepare for his defense
- Since it is presumed to have o independent
knowledge of the facts that constitute the offense
- For an information to be sufficient, it must validly
charge the offense
- Whether the material facts alleged in the complaint or
information shall establish the essential elements of
the offense charged
- It is fatally defective when it is clear that it does not
really charge an offense or when an essential element
of the crime has both been sufficiently alleged.
Questioning the insufficiency of the complaint or
information
- Objection relating to the form of the complaint or
information cannot be made for the frst time on
appeal
- The accused-appellant should move before
arraignment either for a bill of particulars or move for
the quashal of the information
- If he fails, he is deemed to have waived his objections
to any formal defect in the information
- If you failed to raise the issue of the defective
information before the trial court, it amounted to a
waiver of the defect in the information
- While the sufficiency of an information may be
assailed, teh right to question the sufficiency of the
same is not absolute
- An accused is deemed to have waived this right if he
fails to object upon his arraignment or during the tiral
- The evidence presented during the trial can cure the
defect in the information
- He also waived his right when he voluntarily entered a
plea when arraigned and participated in the trial
- If the objection is based on the lack of jurisdiction
over the subject matter, the same may be raised or
considered motu proprio by the court at any stage of
the proceeding or appeal
How the nature of the offense is determined
- It is determined by the actual recital of the facts in the
complaint or information
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 - Not by the caption of the information or the citation
of the law allegedly violated
- Every element of the offense must be stated
- Even if the designation of the crime in the information
is defective, what is controlling is the allegation of the
facts in the information that comprises a crime and
adequately describes the nature and cause of the
accusation against the accused
Date of the commission of the offense
- precise date of the offense is not necessary to state in
the complaint or information
- Except when the date of commission is a material
element of the offense
- The accused was charged with unlawfully allowing a
paymaster to obtain cash advances through a series of
acts, the precise date is not a material element
- In qualified theft, it was allegedly transpired on Dec
29, 1995. It actually happened on January 2, 1996. It
was stated, “on or about the 2 nd of January 1996”. In
qualified theft, it could be alleged to be committed o
a date as near as possible to the actual date of its
commission
- When the date give is not of the essence of the
offense, it need not be proven as alleged
- In rape, the failure to specify date does not ipso facto
make the information defective
- Time or date or rape is not a material ingredient of
the crime because the gravamen of rape is carnal
knowledge of a woman
- “in the first week”—allowed
- “sometime in the month of October of 1001”—
allowed
- “on or about the year of 1992”—not allowed
How to state the name of the accused
a. Name and surname , or appellation or
nickname
b. If his name cannot be ascertained, he must
be described under a fictitious name
c. If, later, his true name is disclosed by him or
becomes known, his true name shall be
inserted
- The first duty of the prosecution is not to prove the
crime but to prove the identity of the criminal
- There can be no conviction without proof of identity
of the criminal beyond reasonable doubt
- The task of the prosecution is always two-fold:
a. To prove beyond reasonable doubt the commission of
the crime charged
b. To establish with the same quantum of proof the
identity of the person or persons responsible,
because, even if the commission of the crime is a
given, there can be no conviction without the identity
of the malefactor being clearly ascertained
- Positive identification pertains essentially to proof of
identity.
- The witness called him Pablito but his true name is
Pablo, it does not affect his positive identification
- What matters is his identification as the person who
committed the crime, not the name under which he
was arrested or charged
- The identity of the accused, must, be proven
- “it might be him”—uncertain
- The identification of a malefactor doe snot always
require direct evidence from an eyewitness
- Two types of positive identification
a. A witness may identify a suspect or accused in a
criminal case as the perpetrator of the crime as an
eyewitness to the very act of the commission of the
crime—direct evidence
b. Although the witness may not have actually seen the
very act of commission of the crime, he still may be
able to positively identify a suspect or accused as the
perpetrator of a crime – for instance the perpetrator is
the person last seen with the victim immediately
before and right after the commission of the crime
How to state the name of the offended party who is a
natural person
- The offended party is the person against whom or
against whose property the offense was committed
- State the name and the surname of the offended
party, or any appellation or nickname
- Fictitious name
- If disclosed, change the name in the records
How to state the name of the offended party which is a
juridical person
- State the name, or any name or designation by which
it is known or which it may be identified, without need
of averring that it is a juridical person or that it is
organized in accordance with law
Rule if the name of the offended party is unknown in
offenses against property
a. In offenses against property, if the name of the
offended party is unkown, the property must be
described with such particularity as to properly
identify the offese charged
b. In case of offenses against property, the
designation od the name of the offended party is
not absolutely indispensable for as long as the
criminal act charged in the complaint or
information can be properly identified
c. The offenses against property, if the subject
matter of the offense is generic and not
identifiable, the error of designation of the
offended party is fatal and would result in the
acquittal of the accused
Designation of the offense
a. The designation of the offense requires that the name
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 given to the offense by statute shall be stated
If the statute gives no designation to the offense, the
reference shall be made to the section or subsection
punishing it
b. To be included in the complete designation of the
offense is an averment of the acts or omissions
constituting the offense
c. It shall specify the qualifying and aggravating
circumstance of the offense
- The specific acts of the accused do not have to be
described in detail in the information, as it is enough
that the offense be described with sufficient
particularity to make sure that the accused fully
understand what he is being charged wth
- Particularity—must be such that a peron of ordinary
intelligence immediately knows what the charge is
- The prosecutor is not even required to be absolutely
in designating the offense by its formal name in the
law
Effect of failure to designate the offense given by the
statue or failure to mention the provision
- The failure to designate the offense does not vitiate
the information if the alleged facts clearly recite the
facts constituting the crime charged
- The actual facts recited and circumstance in the
information is the controlling
- There is no rule which specifically requires that the
information must state the particular law
Statement of the qualifying and aggravating circumstances
- Every information must allege the qualifying and
aggravating circumstances attending the commission
of the crime
o Took effect on Dec 1, 2000, applied
retroactively to pending cases if it is
favourable to the accused
- It is not sufficient to merely state that the offense was
committed with treachery without alleging the facts
that gave rise to treachery
- For it to be considered in imposing the penalty, it
should be specified
o The prosecution is precluded form
establishing any act or circumstance not
specifically alleged in the information
- “wearing mask and/or other forms of disguise” is a
form of aggravating circumstance, it allows that the
accused to remain anonymous and unidentifiable as
he carries out his crime
- With the promulgation of the Revised Rules, the
courts could no longer consider the aggravating
circumstances not alleged ad proven in the
determination of the penalty and in the award of
damages
- The qualifying circumstance need not be preceded by
descriptive words, “qualifying” or “qualified by” to
properly qualify an offense, but the specific allegation
of an attendant circumstance which adds the essential
element raising the crime to a higher category
- A special qualifying circumstance (minority and
relationship), must be specifically pleaded or alleged
with certainty in the information
- Uncle is not enough, it should be mentioned that he is
a relative within the third civil degree, either by affinity
or consanguinity
- To protect the accused from double jeopardy
Cause of accusation
- Acts or omission complained of must be alleged.
o It must allege clearly and accurately
o Facts and circumstance are necessary to be
included
o Enable the accused, if found guilty, to plead
his conviction in a subsequent prosecution
for the same offense
- It is sufficient to use ordinary and concise language
for common understanding
o Offense being charged
o Acts or omissions
o Qualifying and aggravating circumstance
- The circumstance of the accused being a member of
the PNP was not alleged in the information, therefore
cannot be appreciated even if subsequently proven
during the trial that the accused is a police officer
- Even though the minority of the victim as alleged and
established, it was not properly alleged the
relationship of the accused, therefore, it cannot be
considered as a special qualifying circumstance
Duplicity of the offense
- That there is a joinder of distinct offenses in one
complaint or information
o The complaint or information must charge
only one offense
o It prohibits duplicity of offenses in a single
complaint or information
o More than one offense may be charged
under one complaint or information when
the law prescribes a single punishment for
various offenses
o An information which charges a person for
violating separate and distinct provisions of a
single law, with distinct penalties for each
violation and committed through the
performance of separate act, is defective
because of duplicity
- It is transgressed when in one information the
accused s charged with multiple murder, multiple
frustrated murder and multiple attempted murder
- When a single act violates two or more entirely
distinct and unrelated provisions, the prosecution of
the accused for more than one offense in separate
informations is justified
- On a particular date and “prior thereto”, “several
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 times” is duplicitous
Purpose of the rule against duplicity
- To give the accused the necessary knowledge of the
charge against him and enable him to sufficiently
prepare for defense
Exception to the rule of duplicity
a. When the law prescribes that a single punishment
for various offenses as in complex and compound
crimes
a. Imposes single penalty when a single act
constitutes two or more grave or less grave
felonies
b. When the offense is necessary to commit the
other
b. When the law imposes a single penalty in the case of
a special complex crime
a. Art 266-B of RPC, when by reason or on the
occasion of rape, homicide is committed, the
law imposes death, a single
b. The information for rape with homicide is not
duplicity
c. In Art 267 of RPC, a single penalty of death
shall be imposed when as a consequence of
kidnapping or serious illegal detention, the
victim is killed or dies or is raped
d. In Art 294 of the RPC, robbery with homicide,
robbery with rape or intentional mutilation or
arson
e. Art 320 of RPC, destructive arson and death
results
c. When a single act of throwing a grenade results into
killing of one and injuring others
a. The accused may be charged in a single
information
b. Single shot, killed one, and seriously injured
the other is a complex crime
d. Malversation of public funds through falsification of
public documents may be contained under single
information under Art 48
e. Falsification of residence certificate to commit
malversation is a complex crime
f. “manifest partiality”, “evident bad faith”, “gross
inexcusable negligence”
g. Each incident of sexual intercourse and lascivious act
with a child under RA 7610 is a separate and distinct
offense, each of which is a subject of a separate
information
a. Each conduct of rape or lascivious conduct
should be the subject of separate
information
h. The act of approving the application for legalization of
the stay of 32 aliens despite their allegedly being
disqualified is but a single offense to be charged
under one information only
a. The alleged offense is a series of acts
committed on the same period and impelled
by single itet or resolutions known as
“continued crime” or “continuing crime”
i. When several people are killed by separate bullets
from a single automatic weapon, art 48 is not
applicable the death of each of the persons
who were killed were not caused by the
performance by the accused of one simple act
a. Although the burst of shots was caused by
one single act of pressing the trigger of the
automatic weapon, the person firing it has
only to keep pressing the trigger with his
finger and it would fire continually, hence,
not a single act
b. If single bullet killed two persons, there is
complex crime
c. Committed four separate crimes of murder
and 2 crimes of attempted murder, it cannot
be the subject of a single information
j. When the appellant decided to commit those
separate and distinct acts of sexual assault, he was not
motivated by a single impulse, but rather by several
criminal intents
k. In murder or homicide by using an illegal firearm, a
separate information for illegal possession cannot be
filed
a. It shall be an aggravating circumstance
b. If the violation is of rebellion or insurrection,
sedition, or attempted coup de etat, it shall
absorb as an element
l. If a person was arrested for .45 caliber pistol and a .32
caliber pistol, each firearm should be the subject of a
separate information because the law provides
separate penalty for each type of firearm
Continued crime—duplicity of the crime, how many charges
can you file, one or more information, single intent but several
acts, eg roster
Continuing crime/Transitory crime- one crime but committed
in different places, relate it to venue
Use of illegally possessed firearm under the new firearms
law
- RA 10591
o Sec 29
o The use of a loose firearm, when inherent in
the commission of the crime punishable
under the RPC of other special laws, shall be
considered as an aggravating circumstance
Waiver of duplicity of the offense
- it is ground for a motion to quash
o the objection must be time interposed by the
accused before trial
o otherwise, he is deemed to have waived the
said defect
o the state should not heap upon the accused
two or more charges which might confuse
him in his defense
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 - when 2 or more offenses are charged in a single
complaint or information, the accused must object to
the duplicity before the trial
o if he does not, the court may convict him of
as many offenses as are charged and proved,
and impose on him the penalty of each
offense
- there should be no problem in convicting an accused
of 2 or more crimes errounously charged in one
information or complaint
- 3 counts of rape in one information, however, there
wwas no objection made
Venue of Criminal Actions
- Shall be instituted and tried in the court f the
municipality:
a. Where the offense was committed
b. Where ay of its essential ingredients
occurred
Venue: an element of criminal jurisdiction
- The court cannot exercise jurisdiction over a person
charged with an offense committed outside oits
limited territory
- The state the place where the offense was committed
- Ensure the that the defendant is not compelled to
move to, and appear in, a different court from that of
the province where the crime was committed
- Why?
o The jurisdiction of trial courts is limited to
well-defined territories such that a trial court
is limited to well-defined territories such that
a trial court can only hear and try cases in
crimes committed wthin its territorial
jurisdiction
o Laying the venue in the locus criminis is
grounded on the necessity and justice of
having an accused on trial in the municipality
or province where witness and other facilities
for his defense are available
- Finding an improper venue in criminal cases carries
jurisdictional consequences
- It is not enough to allege in the complaint or
information the place of the commission of the crime,
such crime must also be proven during the trial
Improper venue in a civil case
- The fround for motion to dismiss would be that the
venu is improperly laid
- In criminal cases, the motion to quash would that the
court trying the case has no jurisidiction over the
offense charged
When the court has jurisdiction to try offenses not
committed within its territorial jurisdiction
Venue of selected offenses
- Perjury?
o Committed in Makati
o Certification against forum shopping was
attached to civil complaints used and filed in
Pasay
o Makati is the proper venue of the perjury
case
- Sy Tiong
o Perjured statements were made in a GIS
which was subscribed and sworn to in Manila
- In Union Bank of the Philippines
o The crime of perjury, committed through the
making of a false affidavit, under Art 183, is
committed at the time the affiant subscribes
and swears to his or her affidavit
o When the crime is committed through false
testimony under oath in a proceeding
which is neither criminal nor civil, venue is at
the place where the testimony under oath is
given
o A written sworn statement is submitted,
venue may either be at the place where the
sworn statement is submitted or where the
oath was taken as the taking of the oath and
the submission are both material ingredients
of the crime committed
o The determination of venue shall be based
on the acts alleged in the Information to be
constitutive of the crime
- Under Sec 9 of RA 8042 (Migrant workers and
Oversees Filipino Act of 1995)
o Shall be filed not only in the RTC of the
province or city where the offense was
committed
o May also be filed where the offended party
actually resides at the time of the
commission of the commission of the crime
- BP 22
o Can be filed in any of the places where any
of the elements of the offense occurred,
where the check is
a. drawn ,
b. issued,
c. delivered, or
d. dishonoured
- Estafa by postdating r issuing a bad check
o Basic elements of decit and damage may
arise independently in separate places
o May be filed either
- Transitory or continuing crimes
- Theft
- Automobile was stolen in Manila, the fact that sad
automobile was later found in Rizal is not essential
ingredient of the crime
How to state the place of the commission of the offense
- Offense was committed or some of its essential
elements occurred at some place within the
5
 jurisdiction of the court
- If essential to the offense, it is implied from the rule
that the description of the place of commission
AMENDMENT OR SUBSTITUTION OF THE COMPLAINT OR
INFORMTION
Amendment
- Is the correction of an error or an omission in a
complaint or an information
- It is effected in Sec 1, Rule 10 of ROC by adding or
striking out an allegation or the name of the party, or
by correcting a mistaken or inadequate allegation or
description in any other respect, so that the actual
merits of the controversy may speedily be determined,
without regard to technicalities, and in the most and
expeditious and inexpensive manner
Amendment of the information or complaint before plea;
no need for leave
- If amendment is made before the accused enters his
plea, the complaint or information may be amended
in form or in substance, without the need for leave of
court
- If he has not yet been arraigned, the RTC was correct
in directing the amendment of the information
When leave of court is required even if the amendment
made before plea
- Leave of court is made before the plea
o Amendment downgrades the nature of the
offense charged
o Amendment excludes any accused from the
complaint or information
- The above amendments require a motion by the
prosecutor, with notice to the offended party
- The court is mandated by the Rules to state its
reasons in resolving the motion of the prosecutor
and to furnish all parties, especially the offended
party, of copies of its order
Rules as to amendment made after the plea of the accused
- Made after the accused enters his plea and during the
trial, any formal amendment may only be made
under two conditions
o Leave of court must be secured
o The amendment does not cause prejudice to
the rights of the accused
o The rule makes reference only to a formal
amendment after the plea, the rule indicates
that an amendment in substance is not
allowed at this stage
- Before the accused enters his plea, a formal or
substantial amendment of the complaint or
information may be made without leave of court
o After the entry of plea, only a formal
amendment may be but with leave of court
and if it does not prejudice the rights of the
accused
o After arraignment, a substantial amendment
is proscribed except if the same is beneficial
to the accused
When amendment is formal or substantial
- An amendment in the information, which does not
change the nature of the crime alleged, does not
affect the essence of the offense, cause surprise, or
deprive the accused of an opportunity to meet the
new averment had each been held to be one of form
and not of substance
- Test when the rights of an accused are prejudiced by
the amendment of a complaint or information is,
o When a defense of the accused, under the
original complaint or information, would no
longer be available after the amendment is
made
o And whe the evidence the accused might
have would be inapplicable to the complaint
or information, as amended
o In the change of date of the commission, if
the disparity is not gret, is more formal than
substantial
- Formal amendments
o New allegations which relate only to he
penalty hat the court might impose in the
event of conviction
o An amendment which does not change
another offense different or distinct from
that charged in the original one
o Additional allegations which do not alter the
prosecution’s theory of the case so as to
cause surprise to the accused and affect the
form of defense he has or will assume
o Does not affect any substantial rights of the
accused
o Merely adds specification to eliminate
vagueness in the information and not to
introduce new and material facts, and merely
states with additional precision something
which is already contained in the original
information and which adds nothing
essential for conviction for the crime charged
- In Pacoy v Judge Afable Cajigal
o Upon arraignment, the accused, pleaded not
guilty to the charge of homicide
o After the arraignment, the respondent judge
issued another order directing the trial
prosecutor to correct and amend the
information to murder in view of the
aggravating circumstance
o The prosecutor entered his amendment by
crossing out the word “homicide” and
instead wrote the word “murder”
o On the re-arraignment of the accused for the
crime of murder, the counsel of the
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 petitioner objected on the ground that the
latter would be placed in double jeopardy
o The SC issued whether or not the
amendment from homicide to murder is a
substantial one
o The court ruled that the charge of the
offense from homicide to murder is merely a
formal amendment and not a substantial
amendment or a substitution
o There was no change in the recital of facts
the court found the amendment made in the
caption and preamble from homicide to
murder as purely formal
- In a case involving qualified theft of a motor vehicle
the prosecution sought to add habitual delinquency
and recidivism
o The court observed that the amendment
desired related only to the range of the
penalty that the court might impose in the
event of conviction
- The prosecution sought during trial to amend the
information from frustrated to consummated murder
o Formal amendment
- After the accused was arraigned, to include in the
allegation that by reason or on occasion of the rape,
the victim became insane, is not a substantial
amendment
o It merely changed the penalty
- Illegal recruitment to Illegal recruitment in large scale
- In violation of RA 8424 or the Tax Reform Act of 1997,
for non-filing of income tax returns for a particular
taxable year,
o After the petitioner was arraigned and
pleaded not guilty
o The prosecution filed a motion for leave to
amend the information changing locations of
the business of the petitioner
o Amendments do not charge another offense
different from that charged in the original
one
o Or do not alter the prosecution’s theory of
the case so as to cause surprise to the
accused and affect the form of defense he
has or will assume are considered merely as
formal amendment
- The insertion of the real name of the accused is
merely a forma amendment
- The inclusion of an additional accused with the
allegation that the additional accused acted in
conspiracy with the original accused, is only an
amendment in form
- The additional allegation of conspiracy is only a
formal amendment where the participation of the
accused as a principal is not affected by the
amendment
Examples of substantial amendments in old case
- Charged of homicide, pleaded not guilty
o The prosecution amended to murder
qualified bu treachery and evident
premeditation
- Accused was arraigned for robbery
o Prosecution sought to amend from robbery
to robbery in an uninhabited place
- Arraigned, then allege the relationship of the accused
to the victim
Substitution of the complaint or information
- May be substituted if it appears at any time before
judgment that a mistake has been made in charging
the proper offense
o The court shall dismiss the original complaint
or information once the new one charging
the proper offense is filed provided the
accused will not be placed in double
jeopardy
- Sec 14, Rule 110
o If it appears at any time before judgment
that a mistake has been made in charging
the proper offense, the court shall dismiss
the original complaint or information
Distinction between substitution and amendment
Amendment Substitution
May be made before or after May be made before or after
the defendant pleads the defendant pleads
May involve either formal or Substantial change
substantial
Before plea, can be effected Must be with leave of court
without the leave of court
Only as to form, there is no Another PI is entailed and the
need of PI accused had to plead anew to
the new information
Same offense charged in the Requires or presupposes new
original information information involves a
different offense
Prosecution of Civil Action
Implied institution of the civil action with the criminal
action
- When a criminal action is instituted, the civil action for
the recovery of the civil liability arising from the
offense charged shall be deemed instituted with the
criminal action
o Principle that every person criminally liable is
also civilly liable
- Criminal case has two aspects
o Civil and criminal
o He offends two entities
 The society in which he lives in or
the political entity called the State,
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 whose law he has violated
 The individual member of that
society whose person, right, honor,
chastity, or property was actually or
directly injured or damaged the
same punishable act or omission
o The civil action is deemed instituted with the
criminal action unless the offended party
waives the civil action, reserves the right to
institute it separately or institutes the civil
action prior to the criminal action
o When the accused is acquitted or when the
case against him is dismissed from failure of
the prosecution to prove his guilt beyond
reasonable doubt, the civil action is not
automatically extinguished since the liability
of the accused can be determined by mere
preponderance of evidence
- The rule on implied institution of the civil action does
not apply before the filing of the criminal action or
information
Purpose of the criminal and civil actions
- To punish in order to deter him and others from
committing the same or similar offenses, to isolate
him from society, reform and rehabilitate him or, in
general, to maintain social order
- The sole purpose of the civil action
o Resolution, reparation, or indemnification
Preponderance of evidence
- Plaintiff meets the burden of proof
- Phy testimonial evidence that the proposition is more
likely to be true than not be true
Beyond reasonable doubt
- Does not require absolute certainty only moral
certainty
- Moral certainty—the judge is not bothered by
convicting the accused to prison
Intervention of the offended party
- He may intervene by counsel in the prosecution of the
offense where the civil action for the recovery of the
civil liability is instituted in the criminal action
- There are instances when no civil action damage
results from an offense
o Espionage violation of neutrality, flight to an
enemy country, and crime against popular
representation
- Injurious to the respondent’s personal credibility and
reputation insofar as his faithful performance of the
duties and responsibilities as corporate treasurer”
o A civil action deemed instituted with the
criminal action that would justify the
appearance of a private prosecutor
Judgment of conviction includes a judgment on the civil
liability
- State the civil liability or damages caused by the
wrongful act or omission to be revored from the
accused by the offended party, if there is any and if
the filing of the civil action has not been resevredm
previously instituted or waived
The real parties in interest in the civil aspect of the case
- Offended party and the accused
- Either may appeal despite the acquittal of the accused
- The public prosecutor generally has no interest in
appealing the civil aspect of a decision acquitting the
accused
Rule Applicable
- The Rules of Criminal Procedure
When a civil action may proceed independently;
independent civil actions and quasi-delicts
- Two separate civil liabilities
o Civil liability ex delicto
o Independent civil liability
- Civil action referred to Art 32, 33, 34 and 2176 shall
remain separate, distinct, and independent
o Driver, common carrier, by his negligent act,
causes serious injuries to a pedestrian, the
former is not only civilly liable but also liable
under a quasi-delict or culpa aquiliana
o Pursuant to Art 2176
- Quasi-delict “is entirely separate and distinct from the
civil liability arising from negligence under the RPC
- What the law proscribes is double recovery
o Art 2177 “the plaintiff cannot recover
damages twice for the same act or omission
of the defendant
- If based on defamation, fraud, or physical injuries give
rise to an independent civil action arising not from the
crime charged but from Art 33 even if caused by the
very same defamatory or fraudulent act
o Estafa—proceed independently of the
criminal action
o Illegal arrest or detained illegally—may
initiate independent civil action for damages
(Art 32)
Consequences of the independent character of action
under Art 32, 33, 34 and 2176 of the Civil Action
- The right to bring the civil action shall proceed
independently of the criminal action
- The quantum of evidence required is preponderance
of evidence
- The right to bring the foregoing actions based on the
CC need not to be reserved in the criminal action
since they are not deemed included
o The institution or waiver of the right to file a
separate civil action arising from the crime
8
 charged does not extinguish the right to
bring an independent civil action
o Civil action is filed independently, the ex
delicto civil liability in the criminal
prosecution remains, and the offended party
may subject to the control of the prosecutor
—still intervene in the criminal action, in
order to protect the remaining civil interest
When there is no implied institution of the civil action
- No implied institution of the civil action to recover
civil liability
o Waives
o Reserves
o Institutes
- The above rule has no application to independent civil
actions under Art 32, 33, 34 and 2176
Reservation of the civil action
- Made before the prosecution starts presenting its
evidence
When no reservation is required
- Actions under Art 32, 33, 34—independent civil
actions and 2176—quasi-delict
Civil liability in BP Blg 22
- The payee is entitled to receive payment of the money
for which the worthless check was issued
o The offended party is entitled to recompense
- Corresponding civil action is deemed included and
that a reservation to file such separately is not allowed
No reservation of the civil action in BP Blg 22
- the criminal action in this case shall be deemed to
include the corresponding civil action
o upon filing of the joint criminal and civil
actions, the offended party shall pay in full
the filing fees based on the amount of the
check involved
o the amount shall also be considered as the
actual damaged claimed
o what the rule prohibits is the filing of a
reservation to file the civil action arising from
BP 22
o it does not prohibit the waiver of the civil
action or the institution of the civil action
prior to the criminal action
- a separate proceeding for the recovery of civil liability
in cases of violation of BP 22 is allowed when the civil
case is filed ahead of the criminal case
When the separate civil action is suspended
- after the criminal action is commenced, the separate
civil action arising cannot be instituted until final
judgment has been entered in the criminal action
o the rule indicates the preference given to the
resolution of the criminal action
- civil action already instituted shall be suspended , in
whatever stage of the proceedings it may be found, as
long as no judgement on the merits has yet been
entered in the civil action
o the suspension sit shall last until final
judgment is rendered in the criminal action
- Applies only to civil actions arising from the offense
charged—not to independent civil actions
Counterclaim, cross-claim, third party in a criminal action
- A court cannot entertain counterclaims, cross-claims,
and third party complaints in the criminal action
o A criminal case is not the proper proceedings
to determine the civil liability of the private
complainant
o Any counterclaim, cross-claim, or third party
complaint may be made the subject of a
separate civil action
- But any cause of action which could have been the
subject thereof may be litigated in a separate civil
action
- Counterclaim
o Plaintiff alleges a cause of action, the
defendant files his answer
- Cross-claim
o One plaintiff with several defendants
o One of the defendants avers that he is not
liable but only the other defendants
- Third-party claim
o Claim by a person not yet a party to this case
Rules on filing fees
- Paid when damages are being claimed by the
offended party
a. There are no filing fees required for
actual damages, unless required by
rules. Eg. BP 22 and estafa
b. Filing fees shall be paid by the offended
party upon the filing of the criminal
action
a. Where he seeks moral, nominal,
temperate or exemplary
damages but other than actual
damages, and where the
amount is specified in the
complaint or information
b. If the amount is not specified in
the complaint or information
but any of the damages is
subsequently awarded, the
filing fees assessed in
accordance with the rules, shall
constitute a first lien on the
judgment awarding such
9
 damages
- Filing fees are due for each count
- Actual damage
o The actual amount sustained
- Moral Damage
o Sleepless nights, besmirched reputation,
serious anxiety, mental anguish
- Temperate damage
o Actual damage is proven but the court
cannot substantiate his claim
- Nominal damage
o No proof of actual damage
Effect of death of the accused on his criminal liability
- Prior to final judgment, as when he dies pending of
his conviction, extinguishes his criminal liability
Effect of death of the accused on his civil liability
- The accused dies after the arraignment, and during
the pendency of the criminal action, the civil liability
of the accused arsing from the crime is extinguished
o The civil action instituted for recovery of civil
liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal case
- If before the arraignment, the accused dies
o Only criminal liability is extinguished but civil
liability may be prove against the estate
- The above rule has no application to independent
civil actions
o Continued against the state or legal
representative of the accused after proper
substitution or against the estate as the case
may be
- If the accused dies before the arraignment, the case
shall be dismissed but the dismissal shall be without
prejudice to any civil action which the offended party
may file against the estate of the deceased
- Why go for the estate?
o Before the arraignment, he was not able to
defend himself from the offense
o After the arraignment, the accused already
defend himself from the offense
Novation: Extinguishment of criminal liability
- Novation is not one of the grounds prescribed by RPC
for the extinguishment of criminal liability
- But it may only prevent
o Guingona v Manila
o Novation may, prevent the incipient criminal
liability to arise for as long as novation is
made prior to the institution of the criminal
proceedings
o Novation made after the institution, it will
not affect the criminal liability
- Criminal liability for estafa is not affected by a
compromise or novation of contract
o For it is a public offense which must be
prosecuted and punished by the government
on its own motion even though complete
reparation should have been made of the
damage suffered by the offended party
o In estafa, reimbursement of or compromise
as to the amount misappropriated after the
commission of the crime affects only the civil
liability of the offender, and not his criminal
liability
- Novation
o Substitution of a new contract for an old one
o If there is a change in the object of the
obligation or subject of the obligation
Effect of acquittal or the extinction of the penal action on
the civil action or civil liability
- The extinction of the penal action does not carry with
it the extinction of the civil action
- Two kinds of acquittal
a. The accused is not the author of the act or
omission complained of
a. Closes the door to civil liability because
a person who is not the author can
never be held liable
b. Based on reasonable doubt on the guilt of the
accused
a. Even if the guilt of the accused has not
been established beyond reasonable
doubt, he is not exempt from civil
liability because such liability may be
proved by mere preponderance of
evidence
- BP 22, acquitted because the element of notice of
dishonour was not established
o The act or omission from her civil liability
arose, which was the issuing of the worthless
check, clearly existed
o The acquittal was based on reasonable doubt
and it did not change the fact that the
accused issued the dishonoured check
- The acquittal of the accused does not prevent him on
civil aspect of the criminal case unless the court finds
and declares that the fact from which the civil liability
might arise did not exist
 It does not follow that if the accused is criminally
acquitted, that he has still civil liabilit
Effect of payment of the civil liability
- Does not extinguish the criminal liability
- A judge cannot dismiss a criminal case because the
civil liability has been paid
Effect of judgment in the civil case absolving the defendant
10
 - Is not a bar to a criminal action against the defendant
for the same act or omission subject of the civil action
Effect of acquittal of the accused on his administrative case
- Does not conclude the administrative proceedings,
nor carry with it relief from administrative liability
- Only substantial evidence is necessary in
administrative cases
Subsidiary liability of employer
- Subsidiary liability are deemed written into the
judgments
- In dispositive portion of its decision, the trial court
need not expressely pronounce the subsidiary liability
of the employer
- If the party who is bound to pa but cannot because he
is insolvent, a person may be bound to pay him
subject to certain conditions
- Adequate evidence must exist establishing that:
a. They are indeed the employers of the employees
b. They are engaged in some kind of industry
c. The crime committed by the employees in the
discharge of their duties
d. The execution against the latter has not been satisfied
due to insolvency
- May be determined in the same criminal action in
which the employee’s liability, criminal and civil, has
been pronounced
Concept of prejudicial question
- Arises in a case the resolution of which is a logical
antecedent of the issue involved in the criminal case,
and the cognizance of which pertains to another
tribual
- Determinative of the criminal case , but the jurisdiction
to try and resolve it is lodged in another tribunal
- It is based on a fact distinct and separate from the
crime but so intimately connected with the crime that
it determined the guilt or innocence of the accused
- Civil action and criminal action are still pending
o The civil action, an issue which must pre-
emptively resolved before the criminal action
may proceed
Reason for the principle
- To avoid two conflicting decisions in the civil case and
in the criminal case
Requisites for a prejudicial question
- Section 7 of Rule 111. Elements of prejudicial question
a. The previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action
b. The resolution of such issue determines whether
or not the criminal action may proceed
- For a civil action to be considered prejudicial to a
criminal case, the requisites are
a. The civil case involves facts intimately related to
those upon which the criminal prosecution would
be based
b. In the resolution of the issues or issues raised in
the civil action, the guilt or innocence of the
accused would necessarily be determined
c. Jurisdiction to try said question must be lodged
in another tribunal
- Prejudicial question may not be invoked in these
situations
a. Both are criminal cases
b. Both are civil cases
c. Both cases are administrative
d. One case is administrative and the other civil
e. One case is administrative and other criminal
- It will not rise if the criminal case was instituted prior
to the civil case
- Tenor
o That the issue arises in the civil case ad not in
the criminal case
o In the civil case which needs to be resolved
first before it is determined whether or not
the criminal case should proceed or whether
or not there should be, in the criminal case
a judgment of acquittal or conviction
- It is critical to show that the issue in the civil case is
determinative of the isse in the criminal case
Effect of the existence of a prejudicial question; suspension
of the criminal action
- The petition for the suspension of the criminal action
based upon the pendency of a prejudicial question in
a civil action may be filed
o The filing of a petition before the suspension
of the criminal action is required
o it precludes a motu proprio suspension by
the court of the criminal action
- since a petition to suspend can be filed only in the
criminal action, the determination of the pendency of
a prejudicial action, should be made at the first
instance i the criminal action, not before the supreme
court
- when there is a prejudicial question, the action to be
suspended is the criminal and not the previously
instituted civil action
o a prejudicial question accords a civil case a
preferential treatment and constitutes an
exception to the general rule that the civil
action shall be suspended when the criminal
action is instituted
Suspension does not include dismissal
- the rule authorizing the suspension of the criminal
case y reason of a prejudicial question does not
proscribe the dismissal of the criminal action
- it authorizes the suspension
Where to file the petition for suspension
- does not require that the criminal case be already filed
11
 in court
o in the stage of preliminary investigation as
long as there has been already been a
previously instituted civil case
- may be filed with the office of the prosecutor
conducting the PI
o when the criminal action has been filed in
court for trial, the petition to suspend shall
be filed in the same criminal action at any
time before the prosecution rests
Case illustrations
- filed a frustrated parricide against the petitioner
o it also filed a action for the declaration of the
nullity of their marriage
o petitioner asserted that the relationship
between the offender and the victim is a key
element in parricide, the outcome of the civil
case would have a bearing in the criminal
case filed against him
o SC, the facts show that the criminal case was
filed ahead of the case for declaration of
nullity
o The rules is clear, for a prejudicial question to
exist, the civil action must be first instituted
before the filing of the criminal action
- Perjury
o He alleged that a case filed against him by
the private respondent for recovery of a sum
of money is pending before another court
o When he filed against private respondent of
a complaint for cancellation of mortgage,
delivery of title and damages
o Whether it was to prosper to suspend the
criminal case of the pending civil case, the SC
observed that the pending civil cases are
principally for the determination of whether
a loan was obtained by the petitioner from
the private respondent
o Whether petitioner executed a real mortgage
i favour of the private respondent
o The criminal case involves the determination
affidavit of loss to support his request for
issuance of a new owner’s duplicate copy of
the certificate of title
o Regardless of the outcome of the two civil
cases, it will establish the innocence or guilt
of the petitioner in the criminal case for
perjury
o The purchase by petitioner of the land or his
execution of a real estate mortgage will have
no bearing whatsoever on whether petitioner
knowingly and fraudulently executed a false
affidavit of loss
- Intra-corporate controversies occasionally
demonstrate the application of the concept of
“determinativeness” as a critical element under the
principle of prejudicial question
o Petitioner, a operations manager of a
corporation, filed a complaint for two counts
of estafa against the private respondent
o Respondents alleged that the petitioner has
no authority
o In civil cases, the private respondent was
challenging the petitioner’s authority to act
for the corporation in the corporate pending
before the RTC
o If the supposed authority of petitioner is
found to be defective, it is as if no demand
was ever made, hence, the prosecution for
estafa cannot prosper
o Filed by corporate officers questioning the
validity of the elections of the new officers
o The new set of officers filed criminal case for
estafa
o The civil case posed a prejudicial question
that should be first resolved before the
criminal action is to be pursued
- BP 22
o Petitioner issued a bouncing check in favour
of private respondents
o Private respondents filed a civil actions to
collect sums of money with damages against
the petitioner in the RTC
o Information were also filed against the
petitioner for violation of BP 22
o Even if the accused is declared not liable for
the payment of the value of the checks and
damages, he cannot be adjudged free from
criminal liability for violation of BP 22
- Respondents are debtors to the petitioners
o Respondents to pay daily interest on their
debts
o Respondents filed a complaint seeking the
declaration of “nullity of interest of 5% per
day, fixing of interest, recovery of interest
payment”
o The prejudicial question posed by the
respondents is simply whether the daily
interest rate of 5% is void, such that the
checks issued by respondent to cover said
interest are void for being contra nonos
mores, and thus case of BP 22 will no longer
prosper
o The validity or invalidity of the interest rate is
not determinative of the guilt of respondents
in the criminal cases because the reason for
the issuance of a check is inconsequential in
determining criminal culpability under BP 22
o The mere act of issuing a worthless check is
malum prohibitum
o The primordial posed before the court
hearing the BP 22 cases is whether the law
12
 has been breached is bouncing check has
been issued
- Novation of the credit line agreement was a
prejudicial question in the prosecution for violation of
BP 22
- Whether a prejudicial exists to warrant the suspension
of the trial of the criminal cases for violation of BP 22
against petitioner until after the resolution of the civil
action for specific performance, recovery of
overpayment, and damages
o The criminal proceedings for violation of BP
22 could proceed despite the pendency of
the civil action for rescission of the
conditional sale
- Respondent contracted 1st marriage, then contracted
the 2nd marriage
o Petitioner filed for bigamy
o Respondent initiated a civil action for the
judicial declaration of absolute nullity of his
first marriage on the ground that it was
celebrated without marriage license
o Court emphasised art 40 of the family code
which requires a prior judicial declaration of
nullity of a previous marriage before a party
may remarry
o Any decision in the civil action for nullity
would not erase the fact that respondent
entered into a second marriage during the
subsistence of a first marriage
o A decision in the civil case was not essential
to the determination of the criminal charge
o It is not prejudicial question
- An action for declaration of nullity of marriage is not a
prejudicial question to a concubinage case
When an administrative case is deemed a civil case
- An action for specific performance, even is pending
with an administrative agency raises a prejudicial
question
- Subdivision developer’s failure to deliver to the buyer,
despite repeated demands from the latter
o The TCT covering certain lots subject of the
contract of sale
o Whether the administrative case for specific
performance in HLURB posed a prejudicial
question
o The action for specific performance is an
action civil in nature that could not be
instituted elsewhere except in the HLRUB,
which had exclusive and original jurisdiction
over the same
o Whether the action for specific performance
in the HLRUB would determine whether or
not the buyer is entitled to demand delivery
of the TCT’s because there was a prior need
ot determine whether or not the buyer was
duly represented by an authorized officer
when the lots were sold
o If the buyer was not entitled to said delivery,
the basis for criminal liability for violation of
PD 957 would not exist , thereby negating
the need to proceed with the criminal case
Independent civil action does not operate as a prejudicial
question
- An independent civil action based on fraud, initiated
by the defrauded party does not raise a prejudicial
question to stop the proceedings in a pending
criminal prosecution of the defendant for estafa
through falsification
-
PRELIMINARY INVESTIGATION
- Section 1 of Rule 112
- An inquiry or a proceeding the purpose of which is to
determine whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof, and should be held for trial
Specific purpose of preliminary investigation
a. To inquire concerning the commission of a crime
and the connection of the accused with it, in
order that he may be informed of the nature and
character of the crime charged against him, and if
there is a probable cause for believing him guilty,
that the State shall take necessary steps to bring
him to trial
b. To preserve the evidence and keep the witnesses
within the control of the state
c. To determine the amount of bail
- Also designed to free a respondent from the
inconvenience, expense, ignominy, and stress of
defending himself/herself in the course of a formal
trial, until the reasonable probability of his or her guilt
has been passed upon in a more or less summary
proceeding by a competent officer designated by law
for that purpose
Nature of preliminary investigation
- the conduct of preliminary investigation is a function
that belongs to the public prosecutor
o prosecution of crime lies with the executive
department of the government whose
principal power and responsibility is to see
that the laws of the land are faithfully
executed
- the determination of probable cause, is under our
criminal justice system, an executive function that the
courts cannot interfere with in the absence of grave
abuse of discretion
o the function is lodged, at the first instance,
with the public prosecutor who conducted
the PI and ultimately with the SOJ
o courts cannot reverse the findings of
13
 probable cause of the SOJ, except in clear
cases of grave abuse of discretion
- it is conducted to protect the innocent from the
embarrassment expense and anxiety of a public trial
o it is a substantive right and a component of
due process
o right to due process of law entail the
opportunity to be heard
o an opportunity for the presentation of the
respondent’s side with regard to the
accusation
- is a mere inquiry or a proceeding
o not a trial and does not involve the
examination of witnesses by way of direct or
cross-examinations
o not to declare the respondent guilty beyond
reasonable doubt but only to determine:
a. whether or not a crime has been
committed
b. whether or not the respondent is
probably guilty
- The prosecutor merely determines the existence of
probable cause, and to file the information if he finds
it to be so
o PI is not the occasion for full and exhaustive
display of the parties’ evidence
o The presence or absence of the elements of
the crime is evidentiary in nature and is
amatter of defense that may be passed upon
after a full-blown trial on the merits
Right to a preliminary investigation; not a constitutional
right
- Not required by the constitution
o Statutory in character and may be invoked
only when specifically created by statute
- It is a substantive right
o To deny the accused to a PI would deprive
him the full measure of his right to due
process
o A ground for a petition for certitorari and
mandamus arises
Right to a preliminary investigation; waivable
- May be waived for failure to invoke the right prior to
or at the time of the plea
Probable cause in PI
- Pertains to facts and circumstances sufficient to
support a well-founded belief that a crime has been
committed and the accused is probably guilty
o Merely based on opinion and reasonable
belief
o A finding of PI does not require an inquiry
into whether there is sufficient evidence to
procure a conviction
o Probable cause implies probability of guilt
and requires more than bare suspension but
less than evidence to justify a conviction
- To establish probable cause is based only on the
likelihood or probability, of guilt
o Probable cause does not refer to evidence
which would justify a conviction
o It refers to probability of guilt, it requires
more than bare suspicion
o Finding a probable cause needs only to rest
on evidence showing that more likely than
not a crime has been committed and was
committed by the suspect
o Evidence supporting probable cause may
even be based on hearsay
o Hearsay
 May be the basis for issuance of the
warrant “so long as there is a
substantial basis for crediting the
hearsay”
- It was not necessary for the investigating prosecutor
to delve into the validity and merits of the party’s
defense and accusation, as well as the admissibility of
the testimonies and the evidence
o This is better ventilated during the trial
o The defenses raised by the respondent in the
preliminary investigation and by inquiring
into evidentiary matters that could only be
passed upon in a full-blown trial, the
prosecutor already went into the merits of
the case
o “The duty to determine the authenticity of a
signature rests on the judge who must
conduct an independent examination of the
signature itself in order to arrive at a
reasonable conclusion as to its authenticity”
o The validity and merits of a party’s defense
and accusation, as well as the admissibility of
testimonies and evidence, are better
ventilated during the trial proper and not
during the PR
Kinds of determination of probable cause; preliminary
investigation v preliminary examination
PI PE
Determination of probable Determination of probable
cause by the executive cause by the judicial
department department
Pertains to the public one made by the judge to
prosecutor who is given a ascertain whether a warrant of
broad discretion to determine arrest should be issued
whether probable cause exists against the accused
and to charge those whom he
believes to have committed
the crime
The judge must satisfy himself
that based on the evidence
submitted, there is necessity
14
 for placing the accused under
custody in order not to
frustrate the ends of justice
If the judge finds no probable
cause, the judge cannot be
forced to issue the arrest
warrant
Courts are precluded from reviewing findings of
prosecutors; exception
- The courts of law are precluded from disturbing the
findings of public prosecutors on the existence and
no-existence of probable cause
o The principle of separation of powers
- SOJ are not subject to interference by the courts,
except:
a. Grave abuse of discretion amounting to lack or
excess of jurisdiction
b. Grossly misapprehends the facts
c. Acts in a manner so patent and gross as to
amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined by law
d. Acts outside the contemplation of law
o Rule: SC will not interfere in the findings of
SOJ on the insufficiency of the evidence
presented to establish probable cause
o Exception: it is shown that the questioned
acts were done in a capricious and whimsical
exercise of judgment evidencing a clear case
of grave abuse of discretion amounting to
lack or excess of jurisdiction
- Court will not hesitate to interfere if there is a clear
showing that the SOJ gravely abused his discretion
- “to justify judicial intervention, the abuse of discretion
must be so patent and gross as to amount to an
invasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law or to act at all in
contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of
passion or hostility”
Instances when probable cause needs to be established
- 4 instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established
a. Sec 1 and 3 of Rule 112
o By the investigating officer, to determine
whether there is sufficient ground to
engender a well-founded belief that a crime
has been committed and the respondent is
probably guilty and should be held for trial
o Where the penalty is at least 4 years, 2
months, and 1 day
b. Sec 6 and 9, Rule 112
o By the judge, to determine whether a
warrant of arrest or a commitment order, if
the accused has already been arrested, shall
be issued and that there is a necessity of
placing the respondent under immediate
custody in order not to frustrate the ends of
justice
c. Sec 5(b) of Rule 113
o By a peace officer or a private person making
warrantless arrest, when an offense has just
been committed, and he has probable cause
to believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it
d. Sec 4 of Rule 126
o By the judge, to determine whether a search
warrant shall be issued, and only upon
probable cause in connection with one
specific offense to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
things to be seized which may be anywhere
in the Philippines
Officers authorized to conduct preliminary investigation
and determine existence of probable cause
a. Provincial or City Prosecutors and their
assistants
b. National and Regional State Prosecutor
c. Other officers as may be authorized by law
- Shall include all crimes cognizable by the proper court
- Judges at first level courts are no longer allowed to
conduct preliminary investigations (AM No. 05-8-26-
SC, Oct 3, 2005)
- The following are authorized to conduct PI
a. Under the amendment to the Omnibus Election Code,
the COMELEC has the power, concurrent with the
other prosecuting arms of the government, to
conduct PI of all election offenses punishable under
Omnibus Election Code and to prosecute the same
b. Office of the Ombudsman has the authority to
investigate and prosecute on its own or on complaint
by any person, any act or omission of any public
officer or employee, office or agency, when such act
or omission appears to be illegal, unjust, improper or
inefficient
c. The Presidential Commission on Good Government
with the assistance of the Office of the Sol Gen and
other government agencies is empowered to
investigate, file and prosecute cases investigated by it
Cases requiring a PI, when not required
- At least 4 years, 2 months, 1 day without the regard to
the fine
Procedure for cases not requiring a preliminary
investigation
- When PI is not required because the penalty
prescribed by law for the offense involves an
15
 imprisonment less than 4 years, 2 months, 1 day
- Two ways of initiating a criminal action
a. Filing the complaint directly with the prosecutor
b. Filing the complaint or information with the MTC
Direct filing with the prosecutor
- Procedure in Sec 3 (a) of Rule 112 shall be observed
- The prosecutor shall act on the complaint based on
the affidavits and other supporting documents
submitted by the complainant
- Within 10 days
- Respondent need not be issued a subpoena or
required to submit counter-affidavits
Direct filing with the MTC
- If less than 4 years, 2 months, 1 day
o The judge need not to issue a subpoena to
the respondent in the same way as when the
complaint is filed directly with the prosecutor
- If within 10 days from filing of the complaint or
information, the judge finds no probable cause, he
shall dismiss
- Before dismissal, the judge has several options
a. Personally evaluate the evidence submitted to the
court
b. For the judge to personally examine in writing and
under oath the complainant and his witnesses in the
form of searching questions and answers
c. If the judge desires to further determine the existence
of probable cause, he may require the submission of
additional evidence within 10 days from notice
o If the judge finds no probable cause, despite
the additional evidence, the judge shall
dismiss the case within 10 days from the
submission of additional evidence or
expiration of period
- If the judge finds probable cause, he shall issue a
warrant of arrest
o If the accused has already been arrested, the
court shall instead issue a commitment order
o A WOA may not also be issued if the judge is
satisfied that there is no necessity for placing
the accused under custody, the court may
issue summons instead of WOA
o Failure to appear may be a ground for the
issuance of WOA
When preliminary investigation is not required even if the
offense is one which normally requires a PI
- If a person is arrested lawfully without a warrant
involving an offense which requires a PI
o An information or complaint may be filed
against him without need for preliminary
investigation
o The person arrested shall be required to
undergo an inquest
o This proceeding is required before a
complaint or information may be filed
against the person arrested
- Inquest proceedings are proper only when the
accused has been lawfully arrested without a warrant
- If he has been arrested in a place where an inquest
prosecutor is available, an inquest will be conducted
instead of a preliminary investigation
o In absence or unavailability of an inquest
prosecutor, an inquest may be dispensed
with
o Allows the filing of the complaint directly
with the proper court by the offended party
or a peace officer on the basis of the affidavit
of the offended party or arresting officer
o Direct filig under this rule is another instance
in which a direct filing in court may be done
Person arrested lawfully without a warrant may ask for a PI
- Sec 6 of Rule 112
- Inquest
o Is a proceeding when a person is lawfully
arrested without a warrant
o Such person may ask for a preliminary
investigation in accordance with Rule 112,
before the complaint or information is filed
o He must sign a waiver (Art 125) in the
presence of a counsel
o The PI must be terminated within 15 days
o The fact that a person was lawfully arrested
without a warrant does not bar him from
availing of a PI
o This RPC provision imposes penalty upon a
public officer or an EE who, although having
been detained a person form some legal
ground, fails to deliver the person arrested to
the proper judicial authorities within the
periods of 12, 18 or 36 hours as the case may
be
- By virtue of RA 7438, any waiver by the person
arrested or detained or under custodial investigation
shall be in writing, signed by each persons in the
presence of their counsel
- If an information or complaint has been already filed,
the person arrested who is now an accused, may still
ask for a PI within 5 days from the time he learns of its
filing, with the same right to adduce evidence in his
defense
Bail for a person lawfully arrested during the PI
- Does not preclude him from applying for bail
o In PI, the person arrested is still under
detention
o To effect his release, he may apply for bail
notwithstanding the waiver and even if no
information has yet been filed against him
16
 - The bail must be applied for and issued by the court
in the province, city, or municipality where the person
arrested is held
o Accused arrested lawfully without warrant for
carnapping
o The assisting judge of a Marikina RTC who
approved the bail bond even if the accused
was being held in Quezon City
- b. Investigation report
Questioning the absence of a preliminary investigation
- Must do before he enters the plea
o The court shall resolve the matter as early as
practicable but not later that the start of the
trial
o Failure to invoke the right before entering a
plea will amount to a waiver
Absence of PI; effect on the jurisdiction of the court
- Does not affect the jurisdiction of the court over the
case
- It does not impair the validity of the information, or
otherwise, renders it defective
Absence of preliminary investigation; not a ground for
motion to quash
- The absence of a PI is not a ground for the quashal of
a complaint or information
- If there is no preliminary investigation and the
accused before entering his plea call the attention of
the court to his deprivation of the required PI, the
court should not dismiss the information
o It should remand the case to the prosecutor
so that the investigation may be conducted
o The accused was deprived of full PI, instead
the Sandiganbayan is to hold in abeyance
any further proceedings therein and to
remand the case to the Office of the
Ombudsman for completion of the PI, the
outcome of which shall then be indorsed to
the Sandiganbayan for its appropriate action
Inquest proceedings
- Proper only when the accused has been lawfully
arrested without a warrant
o Not a PI
o It is a summary investigation and which does
not follow the procedures set forth in Sec 3,
Rule 112 of Rules of Court
o Informal and summary
o Its purpose is to determine whether or not
the person detained should remain under
custody and the charged in court
- Conducted by a public prosecutor
o Assigned inquest duties as an Inquest Officer
and is to discharge his duties
o Unless only at the police
stations/headquarters of the PNP in order to
expedite and facilitate the disposition of
inquest cases
- Shall be deemed commenced from the time the
Inquest Officer receives the complaint and referral
documents from the law enforcement
o Includes
a. Affidavit of arrest
c. Statements of the complainant and
witnesses
d. Other supporting evidence gathered
o Shall be subscribed and sworn to before the
Inquest Officer by the affiants
- Should be present during the inquest proceedings
o Unless reasons exists that would dispense his
presence like confinement in a hospital,
detention in a place requiring maximum
security or his presence is not feasible by
reason of age, health or similar facts
- If necessary, the Inquest Officer shall require the
presence of the complaining witnesses and subject
them to an informal and summary investigation or
examination for purpose of determining the existence
of probable cause
Possible options of the inquest prosecutor
- Has an initial duty
- To determine if the detained person has been arrested
lawfully in accordance with Sec 5(a) and (b) of Rule
113 of the Rules of Court
o The IO may summarily examine the arresting
officers on the circumstances surrounding
the arrest or apprehension of the detained
person
- Should it be found that the arrest was not made in
accordance with the Rules of Court, the Inquest
Prosecutor shall not proceed with the inquest
proceedings
o He shall recommend the release of the
defense, note down the disposition on the
referral document, prepare a brief
memorandum indicating the reasons for the
action he took and forward the same
together with the record of the case, to City
of the Provincial Prosecutor for appropriate
action
o When the recommendation is approved, the
order of release shall be served
o The officer shall also serve upon the detainee
a notice of preliminary investigation if the
evidence on hand warrants the conduct of a
regular PI
o The detainee shall be also released for
further investigation
- Should it be found that the arrest was properly
effected, the inquest shall proceed but the IO shall
17
 first ask the detained person if he desires to avail
himself of a PI
o If he does, he shall be made to execute a
waiver of the provisions of Art 125
o PI may be conducted by the IO himself or by
any other Assistant Prosecutor to whom the
case may be assigned
o If the IP finds that probable cause exists, he
shall prepare the corresponding information
with the recommendation that the same be
filed in court
o If no probable cause is found he shall
recommend the release of the detained
person
The inquest must pertain to the offense for which the
arrest was made
- The inquest conducted must be for the offense for
which the detainee was arrested
- Congressman Crispin Beltran Case
o He was arrested without a warrant following
the issuance by Pres GMA of Presidential
Proclamation No 1017 on 24 Feb 2006
o Declaring a “State of National Emergency”
o When he was arrested he not informed of
the crime for which he was arrested
o On the evening of his arrest, he was
subjected to an inquest at the Quezon City
Hall of Justice for Inciting Sedition based on
a speech Beltran allegedly gave during a rally
on the occasion of EDSA revolution
o After 1st inquest, he was again subjected to a
2nd inquest but this time for rebellion
o The panel of prosecutors from DOJ
conducted the 2nd inquest
o They issued a resolution finding probable
cause to indict Beltran and San Juan as
“leaders/promoters” of the alleged rebellion
o The panel then filed an Information with RTC
Makati
o The SC held that the inquest proceedings
against Beltran for rebellion is void
o The join affidavit of Beltran’s arresting
officers states that the officers arrested
Beltran, without a warrant, for Inciting to
Sedition, and not for Rebellion
o The inquest prosecutor could only have
conducted an inquest for inciting to Sedition
and no other
o Beltran’s panel of prosecutors failure to
comply with Sec 6, Rule 112 was declared
void
The procedure for PI must be strictly followed
- In a PI of the rebellion charges against certain
personalities, the Court observed that the charges
were merely based on the unsubscribed letters of
CIDG investigators alleging that the respondents have
committed acts constituting rebellion
- The court found that the panel of prosecutors failed
to comply with Sec 3, Rule 112
- Respondent prosecutors treated the unsubscribed
letters of the officers of CIDG-PNP as complaints and
accepted the affidavits attached to the letters even
though some were notarized
- The uncontroverted facts, belie the prosecutors’
statement that the PI was done in accordance with the
RROCP
Initial steps in preliminary investigation; filing of the
complaint for PI
- It is the filing of the complaint with the investigating
prosecutor that starts the PI process
- The complaint is normally initiated through an
affidavit of complaint
- The complaint is required to state the address of the
respondent:
a. Affidavits of the complainant
b. Affidavits of his witnesses
c. Other supporting documents
- Number of copies shall be in such number as there
are respondents plus 2 copies for the official file
o the complaint referred to in a preliminary
investigation is not just the affidavit of the
complainant
o His affidavit is merely treated as a
component of the complaint
o The rule recognizes that all necessary
allegations need not be contained in a single
document
- The rule established a hierarchy with respect to the
persons before whom the affidavits may be
subscribed and sworn to
o The affidavits that shall accompany the
complaint shall be subscribed and sworn to
before any prosecutor and not necessarily
before the investigating prosecutor
o It may also be subscribed before any
government official authorized to administer
oaths
o In their absence, the affidavits may be
subscribed and sworn to before a notary
public
- The prosecutor, official or notary public before whom
the affidavits were subscribed and sworn to does not
perform a mere perfunctory or mechanical duty
o He is obligated by the rules to conduct a
personal examination of the affiants and
corollarily, to certify that he personally
examined the affiants and he is satisfied that
they voluntarily executed and understood
their affidavits
18

Dismissal of the complaint or issuance of a subpoena
- From the filing of the complaint, the investigating
officer as 10 days within which to decide which of the
following options to take:
a. To dismiss the complaint if he finds no grounds to
conduct the investigation
b. To issue a subpoena to the respondent in case he
finds the need to continue with the investigation, in
which case the subpoena shall be accompanied with a
copy of the complaint and its supporting affidavits
and documents
- The respondent is entitled to receive when the
subpoena is served upon him are:
a. The copy of the complaint
b. Supporting affidavits and documents
- The rule does not require the investigating officer to
furnish the respondent with the copies of the counter-
affidavits of his co-respondents
- Sec 3(b) Rule 112
o A respondent’s right to examine refers only
to “evidence submitted by the complainant”
- The respondent to whom the subpoena was issued
shall have the right to examine the evidence
submitted by the complainant and to copy them at his
expense
o If the evidence is voluminous, the
complainant may be required to specify
those which he intends to present against
the respondent, and these shall be made
available for examination or copying by the
respondent at his expense
o Objects as evidence need not to be furnished
to a party but shall be made available for
examination, copying, or photographing at
the expense of the requesting party
*Subpoena Counter-affidavit Reply Affidavit Rejoinder
Affidavit
Filing of counter-affidavit by the respondent; no motion to
dismiss
- Respondent who receives the subpoena, complaint,
affidavits and other supporting documents, is not
allowed to file a motion to dismiss in lieu of a
counter-affidavit
o Within 10 days from receipt of the subpoena,
he is required to submit his counter-affidavit,
the affidavits of his witnesses and the
supporting documents relied upon for his
defense
o The counter-affidavits shall be subscribed
and sworn by the prosecutor or any
government official authorized to administer
oaths
o In none, the notary public
- Sec 3, Rule 112
o Grants the complainant the right to receive a
copy of the respondent’s counter-affidavit
o Failure to give the complainant a copy of the
counter-affidavit is a procedural defect
- It is a common practice to allow the filing of a reply to
the counter-affidavit usually denominated as a reply-
affidavit
o The respondent is allowed to rebut the reply-
affidavit through a rejoinder-affidavit
o There is no provision in Rule 112 that gives
the complainant or requires the prosecutor
to observe the right to file a reply to the
accused’s counter-affidavit
o Right to resolve the complaint even without
a counter-affidavit
 (d) if the respondent cannot
subpoenaed, or if subpoenaed,
does not submit counter-affidavits
within 10 day period, the
investigating officer shall resolve
the complaint based on the
evidence presented by the
complainant
Action to be taken if the respondent does not submit his
counter-affidavit
- Despite the subpoena, within the 10 day period
- The investigating officer shall resolve the complaint
based on the evidence presented by the complainant
- The same rule apply in case the respondent cannot be
subpoenaed
Clarificatory hearing if necessary; no right of cross-
examination
- Within 10 days from the from the submission of the
counter-affidavit, other affidavits and documents filed
by the respondent, or within 10 days from the
expiration of the period of their submission
o A hearing may be set by the investigating
officer, if there are facts and issues to be
clarified wither from a party or a witness
o The parties can be present but do not have
the right to examine or cross examine
o If they questions to ask, they shall submit the
questions to the investigating officer
o The hearing shall be terminated within 5 days
- A clarificatory hearing is not indispensable during PI
o It is within the jurisdiction of the IO whether
to set the case for further hearings to clarify
some matters
o It is optional
No right to cross-examine in a PI
- No right to cross examine
- The respondent shall only have to submit a counter-
affidavit, to examine all other evidence submitted by
19
 the complainant
Determination by the investigating officer
- Within 10 days from the termination of the
investigation
- The IP shall determine whether or not there is
sufficient ground to hold the respondent for trial
Resolution of investigating prosecutor; certification of PI
- If IP finds cause to hold the respondent for trial, he
shall prepare both resolution and information
- If no probable cause, he shall recommend the
dismissal of the complaint
- The information shall contain a certification by the PI
under oath in which he shall certify to the following:
a. He or as shown by the record, an authorized officer,
has personally examined the complainant and his
witnesses
b. There is a reasonable ground to believe that a crime
has been committed
c. The accused is probable guilty
d. That the accused was informed of the complaint and
of the evidence submitted against him
e. He was given an opportunity to submit controverting
evidence
Effect of the absence of the required certification
- The information is considered valid
- Certification is not an essential part of the information
- What is not allowed is not having PI being previously
conducted
Forwarding of the records of the case for action; need for
approval before filing or dismissal
- Within 5 days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor
or chief state prosecutor, or to the ombudsman or his
deputy
o They shall act on the resolution within 10
days from their receipt
- No complaint or information may be filed or
dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the
ombudsman or his deputy
o The resolution of the IP may be reversed or
affirmed
Rule when recommendation for dismissal is disapproved
- The IP, may by himself, file an information against the
respondent, or direct another assistant prosecutor or
state prosecutor to do so without conducting another
PI
Motion for reconsideration
- Within 15 days from receipt of the assailed resolution
- If the motion is denied, the aggrieved party may
appeal within 15 days from the denial of the MR
Appeals to the SOJ
- Prosecutor’s ruling is reviewable by the SOJ who has
the power to reverse, modify, or affirm the
prosecutor’s determination
- SOJ’s power to control over the authority of a state
prosecutor to conduct preliminary investigations on
criminal actions
- The appeal does not hold or prevent the filing of the
corresponding information in court based of probable
cause in the appealed resolution
o Unless the SOJ directs otherwise
- Under Sec 11 (c) of Rule 116
o Upon motion by the proper party, the
arraignment shall be suspended among
others, if a petition for review of the
resolution of the prosecutor is pending
Assailing the resolution of the SOJ; petition for review
under Rule 43 not allowed; petition for certiorari under
Rule 65 filed with the CA
- The action of the SOJ is not subject to the review of
courts unless there is a showing that he committed
grave abuse of discretion
o If findings of the IP or the SOJ as to the
existence of probable cause are equivalent to
a gross misapprehension of facts, certiorari
will lie to correct these errors
- How resolution may be reviewed
o Petition for certitiorari under Rule 65
- The CA is clothed with the jurisdiction to review the
resolution issued by the SOJ through a petition for
certiorari under Rule 65
Review of DOJ resolution in tax and tariff cases
- Rule 65 does not apply to tax and tariff offensed
- Transferred to the CTA by virtue of RA 9282
Appeal to the Office of the President
- Judicial pronouncements do not allow an appeal to
the CA under Rule 43 from the resolution of the SOJ,
the appeal referred to in such pronouncements
evidently pertains only to a judicial appeal
- An administrative appeal is not proscribed
o Memo Circ No 58 (June 30, 1993)
o Appeals or petition for review of
decisions/orders/resolutions of the SOJ on PI
of criminal cases are entertained by the
Office of the Pres”, under the following
conditions
a. The offense involved is punishable by
reclusion perpetua to death
b. New and material issues are raised
c. Prescription of the offense is not due to
lapse within 6 months from notice of the
questioned resolution
d. The appeal or petition for review is filed
within 30 days from notice
20
 o If the appeal is not within the jurisdiction of
the Office of the President, the appeal shall
be dismissed outright
- Adverse decision
o A verified petition for review may be taken
by the CA within 15 days from notice of the
final order of the Office of the President
following the procedure set forth under Rule
43
Appeals under Rule 43 and 45
- From the Office of the President, the aggrieved party
may file an appeal with the CA pursuant to Rule 43—
through a verified complaint
- the party aggrieved by the judgment, final order or
resolution of the Court of Appeals may avail of an
appeal by certitorari to the SC under Rule 45
Review of the rulings of the Ombudsman in criminal cases
- the ruling of the Ombudsman shall be elevated to the
Supreme Court by way of Rule 65
o restricted only in determining whether grave
abuse of discretion has been committed
o the court is not authorized to correct every
error or mistake of the Office of the
Ombudsman other than grave abuse of
discretion
Records supporting the information or complaint filed in
court
- not only the complaint or the information that is filed
in court
o it shall be supported by affidavits and
counter-affidavits of the parties and their
witnesses, together with the other
supporting evidence and the resolution of
the case
- the record of PI shall not form part of the record of
the case
o although not part of the record, the court
may order the production of the record or
any of its part when the court considers it
necessary in the resolution of the case or any
incident therein, or when it is introduced as
an evidence in the case by the requesting
party
Action of the judge upon filing of the complaint or
information
- within 10 days, from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor
- the judge may make findings after personally
evaluating the resolution of the prosecutor
a. fails to establish probable cause
b. established probable cause
c. engenders a doubt as to the existence of
probable cause
o if the evidence on record clearly fails to
establish probable cause, the judge
immediately dismiss the case
- if he finds probable cause, he shall issue a warrant of
arrest
o the court shall issue a commitment order
instead of a warrant of arrest (Sec 6, Rule
112)
o a commitment order instead shall also be
issued by the court in case the accused has
already been previously validly arrested
pursuant to other legal processes
o when a PI has been previously conducted,
does not have the duty to personally
examine the complainant and his witnesses
in writing and under oath and in the form of
searching questions and answers
o this type of examination of the complainant
and his witnesses applies, as an option of the
court, only when there is a direct filing of the
complaint or information with the MTC since
no previous PI has been conducted
o if the judge doubts the existence of probable
cause, the judge may order the prosecution
to submit additional evidence within 5 days
from the notice
o the issue must be resolved by the court
within 30 days from the filing of the
complaint or information
- the option available to the RTC upon the filing of an
information before it by the public prosecutor or any
prosecutor of the SOJ are the following:
a. dismiss the case if the evidence on record clearly
failed to establish probable cause
b. Issue a warrant of arrest if its finds probable
cause
c. Order the prosecutor to present additional
evidence within 5 days from notice, in case of
doubt as to the existence of probable cause
- The option to order additional evidence is mandatory
- The court’s first option is for it to “immediately dismiss
the case if the evidence on record clearly fails to
establish probable cause
- Courts are not irrevocably bound to the determination
of probable cause of the prosecutor
Dismissal of a case for lack of probable cause, a final order
- The order of the court, dismissing a case for lack of
probable cause, is a “final order since it disposes of
the case, terminates the proceedings, and leaves the
court with nothing further to do with respect to the
case”
o They did not consider certiorari as the proper
remedy, but appeal, if the trial court
dismisses a criminal complaint or information
for lack of probable cause
21
 - The court ruled that the order of the RTC granting the
motion of the prosecution to withdraw the
information and ordering the case dismissed, is final
because it disposed of the case and terminated the
proceedings, leaving nothing to be done by the court
o The proper remedy is appeal
When warrant of arrest is not necessary
- Complaint or information has already been filed
pursuant to a lawful warrantless arrest
o If the accused is already under detention and
was lawfully arrested without a warrant and a
complaint or information has been filed
o When a warrant has already been issued by
the MTC judge
- When the accused charged for an offense punishable
only by fine
- When the case is subject to the Rules on Summary
Procedure
o Unless he fails to appear whenever required
Withdrawal of the information already filed in court
- Crespo v Mogul—whether the trial court acting on a
motion to dismiss a criminal case filed by the
Provincial Ficsal upon instructions of the SOJ to whom
the case was elevated for review, may refuse to grant
motion and insist on the arraignment and trial on the
merits
o Once a criminal complaint or information is
filed in court, any disposition of the case or
dismissal or acquittal or conviction of the
accused rests within the exclusive
jurisdiction, competence, and discretion of
the trial court
- The bounden duty of the trial court is to make an
independent assessment of the merits of such motion
o While the secretary’s ruling is persuasive, it is
not binding on the courts
o When the TC’s order rests entirely on the
assessment of the DOJ without doing its own
independent evaluation, the TC effectively
abdicates its judicial power and refuses to
perform a positive duty
- Trial court is not bound to adopt the resolution of the
SOJ since it is mandated to independently evaluate or
assess the merits of the case
- The rule applies even before or after arraignment of
the accused
o It does not subservience to or defiance of the
directive of the SOJ, but in the sound
discretion exercise of its judicial prerogative
- The SC emphasized that the TC, having jurisdiction
over the case, is not bound by such resolution but is
required to evaluate it before proceeding further with
the trial
o The SOJ’s ruling is persuasive, it is not
binding in courts
No preliminary investigation under Revised Rule on
Summary Procedure
- Shall commenced either by the filing of the complaint
or information in the MTC
- However, in Metro Manila and other chartered cities,
such cases shall be commenced only by information
o Except when the offense cannot be
prosecuted de officio
RULE 113- ARREST, SEARCH AND SEIZURE
Arrest
- Is the taking of a person into custody in order that he
may be bound to answer for the commission of an
offense
- To make him answer for the commission of an offense
- A person need not to be actually restrained by the
person making the arrest
- A submission to the custody of the person making the
arrest already constitutes an arrest
- Implies control over the person under the custody—
restraint on his liberty to the extent that he is not free
to leave on his own volition
Requisites
- Sec 2 of Article III (Bill of Rights) of the Constitution of
the Philippines
o It is constitutionally mandated that a warrant
of arrest shall issue only upon finding of
probable cause to be determined personally
by the judge
- An arrest without a reasonable cause is an
unreasonable seizure of a person, and violates the
privacy of persons which ought not to be intruded by
the State
o The existence of probable cause is vital to
the validity of a warrant of arrest
Meaning of probable cause for the issuance of a warrant of
arrest
- Probable cause
o Facts and circumstances which would lead a
reasonably discreet and prudent man to
believe that an offense has been committed
by the person sought to be arrested
o It requires neither absolute certainty nor
clear and convincing evidence of guilt
o As long as a prima facie case against the
accused, the trial court has sufficient ground
to issue a warrant for his arrest
Personal examination by judge not required
- The argument that the Constitution now requires the
judge to personally examine the complainant and his
witness in his determination of probable cause for the
issuance of warrants of arrest is not an accurate
interpretation
22
 o This does not mandatorily require the judge
to personally examine the complainant and
his witnesses
o Instead, he may opt to personally evaluate
the report and supporting documents
submitted by the prosecutor or he may
disregard the prosecutor’s report and require
the submission of supporting affidavits of
witnesses
- The judge’s personal examination of the complaint
and the witnesses is not mandatory and indispensable
for determining the aptness of issuing a warrant of
arrest
o It is enough that the judge personally
evaluates prosecutor’s report and supporting
documents showing the existence of
probable cause for the indictment and, issue
a warrant of arrest
o To disregard the prosecutor’s resolution and
required submission of additional affidavits
of witnesses to aid him in determining its
existence
- Conducting personal examination is only one of its
options aside from making a personal evaluation of
the evidence or requiring the submission of additional
evidence
Method of arrest with a warrant; warrant need not to be in
possession of the officer
- The head of the office to whom the WOA was
delivered shall cause the warrant to be executed
within 10 days from its receipt
o After its expiration, the officer to whom it
was assigned for execution shall make a
report to the judge who issued the warrant
o In case of his failure to execute the warrant,
he shall state the reasons for its non-
execution
- The officer shall inform the person to be arrested of;
a. The cause of his arrest
b. The fact that a warrant has been issued for his
arrest
- The information need not be given when the person
to be arrested
a. Flees
b. Forcibly resists
c. The giving of the information will imperil the
arrest
- The officer need not have the warrant in his
possession at the time of the arrest
o After the arrest, the warrant shall be known
to the person arrested as soon as practicable,
if the person arrested so requires
- The officer assigned to execute the WOA, has, after of
the accused, the duty to deliver the person arrested to
the nearest police station or jail without unnecessary
delay
When a warrantless arrest if lawful
- General rule: A warrant is needed in order to validly
effect the same
o Exception: Warrantless arrest
- Sec 5. Arrest without warrant; when lawful
a. In his presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit
b. When an offense has just been committed and he
has probable cause to believe, based on personal
knowledge of facts or circumstance, that the
person to be arrested has committed
c. Is a prisoner who has escaped
- Other grounds for a lawful warrantless arrest other
than Sec 5
a. Previously lawfully arrested, escapes or is rescued
b. Accused released on bail attempt to depart from
the PH without the permission of the court where
the case is pending
Who may make the warrantless arrest; duty of officer;
citizen’s arrest
- Peace officer or private person (citizen’s arrest)—in
flagrante delicto
In flagrante delicto exception; basis; requisites
- Mere suspension and reliable information are not
justifications of warrantless arrest
- It is required that the accused perform some over act
that would indicate that he has committed, is actually
committing, or is attempting to commit an offense
- Requisites:
a. The person to be arrested must execute an over acts
indicating that he has just committed, is, actually
commiting, or is attempting to commit a crime
b. Such overt act is done in the presence or within the
view of the arresting officer
- In this type of warrantless arrest, the person making
the arrest witnesses the crime and hence, has personal
knowledge of the commission of the offense
- Buy-bust operation
o Entrapment operation does not require a
warrant inasmuch as it is considered a valid
“warrantless arrest”
o The search incidental to such arrest was also
valid
o A person lawfully arrested may be search,
without such warrant, for dangerous
weapons or anything which may have been
used or constitute proof in the commission
of an offense
- Buy-bust operation is a valid and legitimate form of
entrapment of the drug pusher
o Pseur buyer transacts with the suspect by
purchasing a quantity of dangerous drug and
parying the price agreed upon
o The drug pusher turns over or delivers the
dangerous drug subject of their agreement i
23
 exchange for the price or other consideration
o Suspect arrested is in flagrante delicto
- If accused was merely talking to a police informant
and their was no overt act, warrantless arrest is not
valid
- The mere act of darting away when approached by a
police officer should not be construed against the
accused
o Flight per se is not synonymous with guilt
o Villareal
o It would be error to rule in favour of the
validity of a person’s arrest based on
personal knowledge of facts regarding
appellant’s person and past criminal record
o “pervious arrest or existing criminal record,
will not suffice to satisfy the exacting
requirements provided under Sec 5
- Accused standing around and showing “improper and
unpleasant movements”, it cannot be considered over
acts (Comerciante v People)
- Merely descending the gangplank of the ship holding
a bag and there was no outward indication that called
for his arrest, inadmissible evidence (People v
Aminnudin)
- The accused was arrested while inside the pedicab
despite the absence of any outward indications of a
crime being committed, only reliable information but
no overt act, not sufficient (People v Molina)
- No crime is being committed at the time of the arrest
because no crime may be inferred from the fact that
the eyes of the person arrested were “moving fast”
and “looking at every person” passing by (Malacat v
CA)
- Telephone call to the police by an alleged informer
that suspicious-looking men were at a street corner in
Tondo shortly before noon, the accused was looking
side to side clutching his abdomen, there was no
offense (People v Mengote)
- Two men were arrested while they were about to hand
over a bag of shabu to a police officer, the Supreme
Court declared that the case did not manifest any
suspicious behaviour, he was merely walking from the
apartment and was about to enter the parked car
(People v Laguio)
- Carrying buri-like plastic bag, appeared to contain
camote tops, biarded a bus bound for the province,
placed his bag on same back seat where a trained
anti-narcotics agent was seated, the agent inserted his
finger inside the bag where he felt another plastic
bag, which was marijuana
- Police officer sees the offense, or hears the
disturbance created and proceeds at once to the
scene, he may effect an arrest without a warrant since
the offense is deemed committed in his presence
(People v Del Rosario)
- 2 police officers together with a barangay tanod, were
conducting surveillance operations in a bus station
allegedly to check on person who may be “engaging
in traffic of dangerous drugs based on information
supplied by informers”, a person was acting
“suspiciously”. When asked to open the bag, the
accused did so only after the officers identified
themselves, they found marijuana leaves wrapped in
plastic and weighing about 1 kilogram. The urgency in
this case is not present. The court found that the
officer were faced by an “on the spot” information
which required them to act swiftly (People v
Talingben)
- The confidential reports from informers that two
persons would be transporting a large quantity of
marijuana, officers set up a checkpoint in Benguet to
monitor, inspect, and scrutinize vehicles bound for
Baguio City. In this case, the officers had no exact
description of the vehicle of the accused, and no idea
of the definite time of its arrival. The jeepney on the
road is not the same as a passenger boat the route
and time of arrival of which are more or less certain
and which ordinarily cannot deviate or alter its course
or select another destination (People v Maspil)
- The accused was arrested without a warrant while he
was confined in a hospital and undergoing treatment
for a gunshot wound. It was valid. It was justified
because when arrested, he was deemed to be in the
act of committing an offense for being a member of
the NPA. He was also arrested for subversion, like
rebellion, is a continuing offense (Pp v Umil)
The Hot Pursuit
- Sec 5(b) of Rule 113
o When an offense has just been committed,
and he has probable cause to believe based
on personal knowledge of facts or
circumstances that the person to be arrested
has committed
- Requisites:
o The offense has just been committed
o The person making the arrest has personal
knowledge of facts indicating that the person
to be arrested has committed
- The exception does not require the arresting officer or
person to personally witness the commission of the
crime
- Tenor—immediacy of the arrest reckoned from the
commission of the commission of the crime
- A warrantless arrest made one year after the offense
allegedly committed, is an illegal arrest
- A warrantless arrest effected the day after the
commission of the crime of robbery with homicide
does not fall within hot pursuit
o The requirement of immediacy between the
time of the commission of the crime and the
time of the arrest is absent (Pp v Del Rosario)
- An arrest made based on information from unnamed
sources, a day after the crime was committed was held
invalid (Pp v Cendana)
- The accused was arrested 6 days after the commission
24
 of the crime, the arrest was invalid (Go v CA)
- Warrantless arrest was invalidated because it was
made three days after the commission of the crime
(Posadas v Ombudsman)
- It must be the “personal knowledge” referred to under
the hot pursuit exception does not refer to actual
knowledge of the crime.
- He has reasonably worthy information in his
possession coupled with his own observation and fair
interferences there from that the person arrested has
probably committed the offense. The arresting officer
may even rely on information supplied by a witness or
a victim of the crime (Pestilos v Genoroso)
- Personal knowledge of facts must be based on
probable cause, which means an actual belief or
reasonable grounds of suspicion
o Supported by circumstances sufficiently
strong in themselves to create the probable
cause of guilt of the person to be arrested.
o A reasonable suspicion must be founded on
probable cause, coupled with good faith on
the part of the peace officers making the
arrest (Abelita v Doria)
- Actual facts or raw evidence which are sufficiently
strong in themselves to create the required probable
cause (Pestilos v Generoso)
- 2 robbers divested the passengers of a jeepney of
their belongings. The passenger immediately sought
the help of police officers which formed a team to
track down the suspects. One of the passengers saw
one of the robber casually walking in the same vicinity
and wearing his jacket. It was sustained by the Court
as well as the hot pursuit (Pp v Acol)
- The police received a report of a mauling incident,
which resulted in the death of the victim.
o The policemen saw the dead victim in the
hospital and daw the instruments of death in
the crime scene.
o The officers, then, went to the crime scene
and found a piece of wood with blood stains,
a hollow block and 2 pouches of marijuana.
o A witness told the police that the accused
was one of those who killed the victim
o They proceeded to the house and arrested
the accused some 3 hours after the alleged
killing
o The court ruled that based on their
knowledge of the circumstances of the death
of the victim and the report of an eyewitness,
in arresting the accused, the officers had
personal knowledge of facts leading them to
believe that it was the accused who was one
of the perpetrators of the crime (Pp v
Gerente)
- The petitioner alleged that he was arrested based
merely on information relayed on the police officers
about a shooting incident and that they had, at the
time of the arrest, no personal knowledge of the facts
o The court found that as soon as the police
received a phone call about a shooting
incident, a team was dispatched to
investigate
o The investigation disclosed that a victim was
wounded and that the witnesses tagged the
petitioner as the one involved and that he
has just left the scene of the crime
o The petitioner was invited to the police
headquarters but the petitioner sped off
o The court ruled that the petitioner’s act of
trying to get away, coupled with the incident
report which they investigated, s enough to
raise a reasonable suspicion on the part of
the police authorities to the existence of a
probable cause (Abelita v Doria)
- The arresting officer went to the scene of the crime,
upon complaint of the offended party that he was
mauled, less than an hour after the alleged mauling.
o They saw the bloodied state of the victim
and how the latter was identified the
assailants.
o The accused when confronted by the police
did not deny the mauling although they gave
another version of the incident
o The circumstances qualify as to the officer’s
personal knowledge of the commission of
the crime to justify the warrantless arrest
(Pestilos v Generoso)
Method of arrest without a warrant
a. Arrest by an officer
- When making an arrest without a warrant, the officer
shall inform the person to be arrested of his
a. Authority
b. The cause of his arrest
The information need not to be given:
a. If the person to be arrested is engaged in the
commission of an offense
b. Is in the process of being pursued immediately after
its commission
c. Escapes or flees
d. Forcibly resists before the officer has the opportunity
to so inform him
e. When the giving of such information will imperil the
arrest
b. Arrest by a private person
- He shall inform the person to be arrested not of his
authority to arrest, but of his
a. Intention to arrest him
b. The cause of his arrest
- The right to break into a building or an offense or an
enclosure specifically refers to an officer and not to a
private person
c. Where a warrantless arrest is made under the in
25
 flagrante delicto and hot pursuit exception, the
person arrested without a warrant shall be
forthwith delivered to the nearest police station
or jail
Time of making an arrest
- Any day and at any time of day or night
Right of a person arrested
- The rights of a person arrested, detained or under
custodial investigation are spelled out by RA 7438
a. The right to be assisted by counsel at all
times
b. The right to remain silent
c. The right to be informed by the above rights
d. The right to be visited by the immediate
members of the family, by his counsel, or by
any NGO, national or international
- The counsel must be one who is independent and
competent
o He shall be allowed to confer at all times
o If such person cannot afford counsel, must
be provided by the investigating officer with
a competent and independent counsel
- In the absence of a lawyer, no custodial investigation
shall be conducted and the suspected person can only
be detained by the investigating officer in accordance
with the provisions of Art 125
o Any waiver shall be in writing, and signed by
the person arrested, detained, or under
custodial investigation in the presence of the
counsel
- Any extrajudicial confession made shall also be in
writing and signed
o In the presence of his counsel
o Or in latter’s absence, upon a valid waiver,
and in the presence of any of the parents,
older brothers or sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor, or priest or
minister of the gospel as chosen by him
- People v Guillen
o The appellant, after being arrested, remained
silent and passive when he was identified by
his alleged rape victim
o The silence was interpreted by the TC as an
implied admission of guilt
o The conviction was affirmed by the CA
o The SC said that the accused was just using
his constitutional right to remain silent
o He was already brought to the police station
and was already under custodial
investigation
Custodial Investigation
- Begins to operate as soon as the investigation ceases
to be a general inquiry into an unsolved crime
o The interrogation is then aimed on a
particular suspect who has been taken into
custody and to whom the police would then
be direct interrogatory questions that tend to
elicit incriminating statements
- RA 7348
o Sec 2
o The practice of issuing an “invitation” to a
person who is investigated in connection
with an offense he is suspected to have
committed
o Even those who voluntarily surrendered
before a police officer must be apprised of
their Miranda rights
- The right to counsel upon being questioned for the
commission of a crime is part of the Miranda rights
- If after the officers have determined that a crime has
just been committed by the accused, the use of the
term, “invited: i the affidavit of arrest is to be
construed as an authoritative command by the officer
for the accused to submit to the custody of the officer
Effect of a illegal arrest on jurisdiction of the court
- The legality of the arrest affects only the jurisdiction of
the court over the person of the accused
o The illegality of the arrest cannot be the basis
of acquittal
- If the warrantless arrest of an accused is later proven
to be invalid, such fact is not sufficient cause to set
aside a valid judgment rendered upon a sufficient
complaint after a trial free from error
Effect of admission to bail on objections to an illegal arrest
- Shall not bar the accused from challenging the validity
of the arrest or the legality of the warrant
- Provided he raises the objection before he enters plea
Waiver of the illegality of the arrest; effect of illegal arrest
- Must be made before he enters plea
- Otherwise, the objection is deemed waived
- Applies only if the accused voluntarily enters his plea
and participated during the trial, without previously
invoking his objections
- In Rebellion v Pp
o Petitioner claimed that his warrantless arrest
was illegal
o However, it was found that the petitioner
interposed objections to the irregularity of
his arrest prior to his arraignment
o Entered negative plea, participated in trial
o He was deemed to have waived any
perceived defect in his arrest and effectively
submitted himself to the jurisdiction of the
court
- Raised irregularity of his arrest only during his appeal
to the CA
26
 o He is deemed waived such alleged defect
- Drug related indictment
o Failed to raised any objection before
arraignment
o estopped from questioning the legality of
the warrant
- accused-appellant never objected the legality of their
warrantless arrest
o deemed waived
o illegal arrest is not sufficient cause for setting
aside a valid judgment rendered upon a
sufficient complaint after a trial free from
error
Waiver of illegality of the arrest and inadmissibility of the
evidence
- only the right to assail the arrest is waived
- he does not waive the right to question the
admissibility of the evidence seized by virtue of the
illegal arrest
Persons not subject to arrest
a. Senator or member of the HOR, in offenses not
punishable by more than 6 years imprisonment, be
privileged from arrest while the congress is in session
b. Sovereigns, chief of states, ambassadors, ministers
plenipotentiary, ministers resident, and chare
d’affaires
c. Ambassadors, public ministers of a foreign country,
registered domestics, subject to the principle of
reciprocity
Terry Search
- Stop and frisk
Difference between in flagrante delicto and hot pursuit.
II. Search and Seizure (Rule 126)
Nature of a search warrant
- Order in writing issued in the name of the People of
the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal
property described therein and bring it before the
court
- Is not a criminal action nor does it represent a
commencement of a criminal prosecution even if it is
entitled like a criminal action.
o Not a proceeding against a person but is
solely for the discovery and to get
possession of personal property
o Special and peculiar remedy, drastic in
nature, and made necessary because of
public necessity
- Application for a search warrant is not a criminal
action.
o Any aggrieved party may question an order
quashing the same without the need for the
conformity of the public prosecutor
Rule against unreasonable searches and seizures is a
protection against governmental intrusion
- Does not extend to acts committed by private
individuals and entities
- Inspection team of an electric company conducted a
routine inspection of several houses to check on
illegal connection
o Plaintiff claimed that there was nothing
routine or proper at all with what the
inspection team did
o The team entered his house and the
surrounding premises without his permission
and over the objections of his maids
o The constitutional guaranty against unlawful
searches and seizures is intended as a
restraint against the Government and its
agents tasked with law enforcement
o Invoked to ensure freedom arbitrary and
unreasonable exercise of state power
Constitutional Provision
- Sec 2, Art III, 1987 Constitution
o The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizure of
whatever nature and for any purpose shall be
inviolable, and no search warrant or WOA
shall issue except upon probable cause to be
determined personally by the judge after
examination ...
o As a rule, the Constitution mandates that a
search and seizure must be carried out
through or on the strengtho f a judicial
warrant predicated upon the existence of
probable cause
o In the absence of such warrant, the search
and seizure become unreasonable
- Any evidence obtained shall be inadmissible
Arrest distinguished from search and seizure
Arrest Search and Seizure
Seizure of a person so he may Seizure of personal property
be made to answer for the subject of the offense, stolen,
commission of an offense. embezzled, fruits of the
Taking of a person in custody offense, or those intended to
be used to commit an offense
Probable cause—the judge Probable cause—requires
must have sufficient facts in facts to show that particular
his hands that would tend to things connected with a crime
show that a crime has been are found in a specific
committed and that a location
particular person committed it
Arrest with warrant may be A search warrant is generally
27
 made on any day and at any served in day time, unless
time of the day or night there be a direction in the
warrant that it may be served
at ay time of the day or night
Issuance of a warrant Does not require the
presupposes the existence of existence of criminal case. It
a pending criminal case that may be issued prior to the
gave rise to the warrant filing of the case
Application for a search warrant; where to file
- Before any court within whose territorial jurisdiction a
crime was committed
- Exception
a. Where the crime was committed
b. Where the warrant shall be enforced
c. Where the criminal action is pending, if the crime has
already been filed
Ex parte application for a search warrant
- Heard ex parte
- Neither a trial nor a part of the trial
- Must be expedited for time is of the reason
Search warrants involving heinous crimes and others
- AM No. 99-20-09-SC, January 20, 2000
- Heinous crimes, illegal gambling, dangerous drugs,
and illegal possession of firearms
- Authorized to act on all application for search
warrants involving any of the above crimes
a. Executive Judge and Vice Executive Judges of
the RTC of Manila and Quezon City filed by
the PNP
b. NBI
c. Presidential Anti-Organized Crime Task Force
(PAOC-TF)
d. Reaction Against Crime Task Force (REACT-
TF) with the RTC of Manila and Quezon City
- The applications shall be personally endorsed by the
head of the agencies
- Marimla v People
- The petitioners filed a motion to quash and to
suppress the evidence illegally seized
- The application for search warrant was filed and the
warrant was issued by the RTC of Manila which was
outside the courts of Angeles City and Porac,
Pampanga
- SC Observed that the case involved Dangerous Drugs
Law of 1972 (RA 6425)
- The application for search warrant may be filed by the
NBI in the City of Manila and the warrant issued may
be served outside of Manila pursuant to the
guidelines
- Nothing in the rule prohibits the head of the BI to
delegate their ministerial duty of endorsing the
application to their assistant heads
- Sec 31, Chapter 6, Book IV of the Administrative Code
of 1987
- An assistant head or other subordinate in every
bureau may perform such duties as may be specified
by their superior or head, as long as it is not
inconsistent with law
Property subject of a search warrant
- Personal property
- Not only search but also seizure of the following:
a. Subject of the offense
b. Stolen of embezzled
c. Used or intended to be used as a means of
committing an offense
- Only personal properties described in the search
warrant may be seized by the authorities
- People v Nunez
- Taking of shabu and paraphernalia only
- By principle of ejusdem generis, the generic words will
be usually limited to things of a similar nature with
those particularly enumerated, unless there be
something in the context of the statement which
would repel such interference
- The lady’s wallet, cash, grinder, camera, component,
speakers, electric planer, jigsaw, electric tester, saws,
hammer, drill and bolo were not encompassed by the
word paraphernalia as they bear no relation to the use
or manufacture of drugs
- Purpose
- To leave the officers of the law with no discretion
regarding articles they should seize
Requisites for the issuance of a search warrant
- Factors
a. Must be issued upon probable cause
b. Probable cause must be determined by the judge
himself and not by the applicant or any other person
c. In the determination of probable cause, the judge
must examine, under oath or affirmation, the
complainant and such witnesses he may produce
d. The warrant issued must particularly describe the
place to be searched and persons or things to be
searched/ seized (Pacana, 2019)
- The absence of the requisites will result to downright
nullification
- Ogayon v People
o The search warrant was defective because
there was no stenographic notes of the
proceedings
o The Court ruled that the failure to attach to
the records the depositions of the
complainant and his witnesses and/or the
transcript of the judge’s examination, though
contrary to Rules, does not by itself nullify
the warrant
o The requirement to attach is procedural rule
and not a component right
Probable cause in search warrant
28
 - The existence of such facts and circumstances
o Which would lead a reasonably discreet and
prudent man to believe that an offense has
been committed
o The objects sought in connection with the
offense are in the place to be searched
- It is a matter wholly dependent on the finding of trial
judges in the process of exercising judicial function
o Based on “evidence showing that, more likely
than not, a crime has been committed and
that it was committed”
- Probable cause is a flexible, common sense standard
- Santos v Pryce Gases
o Trial court issued a search warrant but it later
retracted from its earlier finding of probable
cause
o The seized items were accordingly
incomplete or insufficient to charge with a
criminal offense
o Retraction negated the court’s previous
determination of probable cause
o The Court agreed because in quashing the
search warrant, it would appear that the trial
court had raised the standard of probable
cause to whether there was a sufficient cause
to hold the petitioner for trial
o The trial court committed grave abuse of
discretion
According respect to findings of probable cause of trial
courts
- The finding is accorded respect by reviewing courts
- Presumed that a judicial function has been regularly
performed, absent a showing to the contrary
How the examination shall be conducted by the judge
a. Examination must be personally conducted by the
judge
b. Examination must be in the form of searching
questions and answers
c. The complainant and the witness shall be examined
on those facts personally known to them
d. The statements must be in writing and under oath
e. The sworn statements of the complainant and the
witnesses, together with the affidavits submitted, shall
be attached to the record
*Searching Questions—examination must be probing and
exhaustive and not merely routinary or general
Personal knowledge of the complainant and the witness
- Pertain to facts, data or information personally known
to the applicant ad the witnesses he may present
o They must have personal knowledge of the
circumstances surrounding the commission
of the crime
o Reliable information is insufficient
o Mere affidavits are not enough and the judge
must depose in writing the complainant and
his witnesses
- The searching questions propounded to the applicant
and the witnesses depend largely on the discretion of
the judge
- It is axiomatic that the examination must be probing
and exhaustive, not merely routinary, general,
peripheral, perfunctory or pro forma
Particular description of place or person
- Sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place
indented and distinguish it from other places in the
community
o Points out the place to the exclusion of all
others
- The executing officer’s prior knowledge as to the
place intended in the warrant is relevant
- Nowhere in Sec 4, Rule 126, is it required that the
search warrant must name the person who occupies
the described premises
- Failure to name the owner or occupant of the
property in the affidavit and search warrant does not
invalidate the warrant
- Uy v BIR
o Caption of Search Warrant A-1 indicates the
address of the petitioners as “Hernan Cortes
St, Cebu City”, while the body of the same
warrant states the address as “Hernan Corte
St., Mandaue City”
o The Court did not consider the discrepancy
as sufficient to consider the warrant
constitutionally infirm
o It was not shown that there was a same same
street named in Cebu City nor it was
established that the officers enforcing the
warrant had difficulty locating the premises
of the petitioner
- John Doe warrant
o Does not name the person subject of the
same, is the exception rather than the rule
o Warrant was voided to the extent that it was
issued against 50 John Does noe of which
could be identified by the witnesses
- While the rule requires it necessary to express the
name or give some description of a party subject of a
warrant, the principle does not prevent the issue and
service of a warrant against a party whose name is
unknown
o The best possible description of the person is
to be given in the warrant; but it must be
sufficient to indicate clearly on whom it is to
be served, by stating his occupation, his
personal appearance and peculiarities, the
place of his residence or other circumstances
by which he can be identified
- People v Veloso
29
 o The search warrant stated that John Does
had gambling apparatus in his possession in
the building occupied by him
o This John Doe was Jose Veloso, the manager
of the club
o The police could identify John Doe
o The affidavit for the search warrant and the
search warrant itself described the building
to be searched and the description was
sufficient designation of the premises
Particular description of the items to be seized; general
warrants
- To limit the things to be seized
- To leave the officers of the law no discretion
regarding what articles they shall seize so abuses may
not be committed
- Warrants, which do not describe the things to be
seized with the required particularity is called general
warrants
- SC also had occasion to rule that the particularity of
the description of the place to be searched and the
things to be seized is required “wherever and
whenever it is feasible”
- The warrant is valid when it enables the police officer
readily identify the properties to be seized and leaves
them with no discretion regarding the articles to be
seized
- Books of accounts, financial records, vouchers,
journals, correspondence, receipts, ledgers, portfolios,
credit journals, typewriters, and other documents and
papers showing all business transactions, including
disbursement receipts, balance sheets, and related
profits ad loss statements is too broad and general
(Stonehill v Diokno)
o It pertains to all business transactions of
petitioners, regardless of whether the
transactions were legal or illegal
- Inadequate for constitutional compliance
o Television sets, video cassette recorders,
rewinders, tape head cleaners, accessories,
equipment and other machines used or
intended to be used in the unlawful
reproduction, sale, rental/lease, distribution
of the above-mentioned video tapes which
she is keeping and concealing in the
premises above-described
o The above articles and appliance, the Court
said that generally connected with or related
to a legitimate business not necessarily
involving piracy of intellectual property or
infringement of copyright laws
- Use of generic term or a general description in a
warrant is allowed only when a more specific
description of the things to be seized is not available
o Mere use of multiple set of accounts, ledgers,
journals, columnar books, cash register
books sales books or record” the
circumstances where the petitioner is alleged
to have committed tax fraud and smuggling
o “unregistered delivery receipts” and
“unregistered purchase and sales invoices”
these need not be identified as it is
impossible because the nature is
unregistered
- Kho v Makalintal
o Unlicensed firearms of various calibres and
ammunitions for the said firearms
o The Court observed that the law
enforcement officers could not have been in
the position to know beforehand the exact
calibre or make of the firearms to be seized
- “an undetermined amount of marijuana and Indian
hemp”
o Satisfies the particularity description in a
search warrant
o Description
a. As specific as the circumstances will
ordinarily allow
b. Expresses a conclusion of fact—not
of law—by which the peace officers
may be guided in making the
search and seizure
c. Limits the things to be seized which
bear direct relation to the offense
for which the warrant is being
issued
o People v Tee
Ownership of property seized not required
- Does not require that the property to be seized
should be owned by the person against whom the
search warrant is directed
- Not sufficient the person against whom the warrant is
directed has control and possession of the property
sought to be seized
- Yao v Pp
Issuance and form of the search warrant
- Shall be issued when the judge is satisfied of the
existence of facts upon which the application is based
or that there is a probable cause to believe that they
exist
Duration of the validity of a search warrant
- Valid for 10 days from its date
Time of making the search
- Daytime and such fact must be so directed in the
warrant
- If affidavit asserts ha the property is on the person or
in the place ordered to be searched, the warrant may
insert a direction that it may be served at any time of
the day or night
Manner of making the search
30
 - Made in the presence of the lawful occupant of the
house, room, or any other premises or any member of
the lawful occupant’s family
- In the absence, the search shall be made in the
presence of 2 witnesses of sufficient age and
discretion residing in the same locality
- Panuncio v Pp
o Assailed the validity of the search which was
allegedly conducted while she was not in the
house
o The search was done in the presence of 2
witnesses of sufficient age and discretion
residing in the same locality
o The requirements of Sec 8, Rule 126 were
complied
- The officer seizing the property must give a detailed
receipt for the same to the lawful occupant of the
premises in the presence the search and seizure were
made, or in the absence, the presence of 2 witnesses
of sufficient age
o Leave a receipt in the place in which he foud
the seized property
*Knock and Announce Rule—is it necessary for the validity? ,
exception
Rule if the officer is refused admittance
- May break open any outer or inner door or window of
a house or any part of a house or anything therein
provided the following requisites
a. The officer gives notice of his purpose
and authority
b. He is refused admittance to the place of
directed search despite the notice
c. The purpose of breaking is to execute
the warrant or to liberate himself or any
person lawfully aiding him when lawfully
detained
Duties of the officer after the search and seizure; delivery
and inventory
An officer making a search has certain duties
a. He must deliver the property seized to the judge who
issued the warrant
b. He must deliver a true inventory of the property
seized. Such inventory must be duly verified under
oath
c. A violation shall constitute contempt of court
Duty of the judge; return and other proceedings
- Sec 12 (b) of Rule 126
a. The judge shall ascertain if the return has
been made. He shall do so 10 days after
issuance of the SW
b. If no return has been made, the judge shall
summon the person to whom the warrant
was issued and require him to explain why
no return was made
c. If the return has been made, the judge shall
ascertain Sec 11 (giving of receipt for the
property seized) was complied with and shall
require that the property seized be delivered
to him. the judge shall also see to it that
there was a delivery of the property seized
ad true inventory (Sec 12)
- His duty as a magistrate does not end when the
warrant is issued
o When the judge did not require the officers
to submit an accurate and complete
inventory, he is guilty of gross ignorance of
the law (Betoy v Colifolore)
*Custody of the searched item—court who issued a search
warrant
Duty of the custodian of the log book
- The return on the search warrant shall be filed and
kept by the custodian of the log book on search
warrant who shall enter:
o Date of the return
o Result
o Other actions of the judge
- Violation shall constitute contempt of court
Objection to issuance or service of warrant
- Must be made before he enter his plea
- Otherwise, the objection shall be deemed waived
Where to file a motion to quash a search warrant or to
suppress evidence
- A motion to quash a search warrant and/or to
suppress evidence obtained by virtue of the warrant
may be fled and acted upon only by the court where
the action has been instituted (Sec 14)
- If no criminal action has been instituted, the motion
may be filed in and resolved by the court issued the
search warrant
o If such court failed to resolve the motion and
a criminal case is subsequently filed in
another court, the motion shall be resolved
by th eater court
Who may assail the issuance of a search warrant
- Only by the party whose rights have been impaired
o The objection to an unlawful search and
seizure is purely personal and cannot be
availed of by third parties
- Santos v Pryce Gases
o The manager of an establishment is a real
party-in-interest to seek quashal of the SW
o The manager was named as respondent, was
directed against the premises and articles
over which he had control and supervision
o The manager was directly prejudiced or
injured by the seizure of the gas tanks
because the petitioner was directly
accountable as manager to the purported
owner of the seized items
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 o The corporation does not have the exclusive
right to question the seizure of items
belonging to the corporation on the ground
that the latter has a personality distinct from
the officers and shareholders of the
corporation
o Assuming that the corporation was the
owner of the seized items, the petitioner, as
its manager had the authority to question
the seizure of the items belonging to the
corporation
- A search warrant is obtained, not by the filing of a
complaint or an information, but by the filing of an
application
o An application for a search warrant is not a
criminal action
o The SC sustained that the conformity of the
public prosecutor is not necessary before an
aggreived party moves for reconsideration of
an order granting a motion to quash SW
(WWW Corporation v Pp)
When order quashing a search warrant can be the proper
subject of an appeal
- An application for a search warrant is a judicial
process conducted wither as an incident in a main
case already filed in court
- Or in anticipation of one yet to be filed
- Whether the criminal case has already been filed
before the trial court is significant for the purpose of
determining the proper remedy from a grant or denial
of a motion to quash a search warrant
- Where the search warrant is issued as a incident in a
pending criminal case, the quashal of a SW is merely
interlocutory
- Where a SW is applied for and issued in anticipation
of a criminal case yet to be filed, the order quashing
the warrant ends the judicial process
o Final orders not interlocutory
* Who can assail the validity of the SW?
- The person aggrieved
*The court can quash the SW?
2 options:
a. Appeal - no case yet filed in court, there is
nothing else to be done, depend which court has
an appellate jurisdiction (Do not forget the
jurisdiction of RTC and Sandiganbayan)
b. Petition of Certiorari under Rule 65--If there is
already a case filed in court, it is already
interlocutory, no other remedies available
Exceptions to the SW Requirement
a. Warrantless search incidental to a lawful arrest
b. Seizure of evidence in plain view
c. Search of a moving vehicle
d. Consented warrantless search
e. Customs search
f. Stop and frisk or Terry searches
g. Exigent and emergency circumstances
h. Search of vessels and aircraft
i. Inspection of buildings and other premises for the
enforcement of fire, sanitary, building regulations
- The time and effort required to secure a warrant may
sometimes frustrate the effective enforcement of the
laws and encourage criminal activities
- To harmonize these conflicting perspectives, the court
has developed exceptions to warrant requirement
- To authorize searches and seizures with the end of
striking out a balance between the need to safeguard
the rights of citizens and the need to avoid
emasculating the powers of the state to maintain an
well-ordered society
- What constitutes a reasonable or unreasonable search
or seizure is purely a judicial question
 Search incident to a lawful arrest
- A person lawfully arrested may be searched, without a
search warrant, for dangerous weapons, or anything
which have been used or constitute proof in the
commission of the offense
- Purpose—to protect the arresting officer from being
harmed by the person arrested, who might be armed
with a concealed weapon, and to prevent the latter
from destroying evidence within reach
a. To protect law enforcers from the injury that may
be inflicted on them by a person they have
lawfully arrested
b. Evidence from being destroyed by the arrestee
- Person illegally arrested cannot be validly searched
without a warrant
o When there is no lawful arrest, the drugs
seized from appellant is rendered
inadmissible in evidence for being the
proverbial fruit of the poisonous tree
*There is a valid arrest first, then search
* Search within his immediate control
- Immediate Physical Control
*Nolasco v Pano
- the lawful arrest justifying the validity of the
warrantless search must be limited to by the subject:
1. Subject of the arrest—person of the subject
2. Time of the arrest—at the time of the arrest or immediately
thereafter
3. Place of the arrest—only at the place where the suspect was
arrested
Parameters of a search incident to a lawful arrest; immediate
reach and control rule
- Allowable scope of a search incident to a lawful arrest
- The provision limits:
a. For dangerous weapons
b. For anything which may been used in the commission
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 of an offense
c. For anything which constitute proof in the
commission of an offense
- The search and seizure is not limited to things related
to the reason for the arrest
- Illegal possession of drugs can extend to search and
seizure of weapons like gun or a knife with no actual
connection to the crime of illegal possession of the
drugs
- In lawful arrests, it becomes both the duty of the
arresting officer to conduct a warrantless search not
only on the person of the suspect but also within the
permissible area within the latter’s reach—within the
area of his control
- “within the area of his immediate control”—area from
within which he might gain possession of a weapon or
destructible evidence
- Espano v CA
o Police officers arrested the accused in
flagrante delicto selling marijuana in a street
corner
o Yielded 2 cellophane bags of marijuana
o He admitted he had marijuana in his house
o The policemen proceeded to his house and
made search which yielded 10 more
cellophane tea bags of marijuana
o The warrantless search of the house of the
accused which yielded marijuana became
unlawful since the police officer were not
armed with a search warrant at the time
o The house of the accused is beyond his reach
and control
- Pp v Lua
o Arrested outside his house in flagrante
delicto in a buy-bust operation
o Confiscated bags of marijuana aand palti
revolver
o The subsequent search of the house of the
arrestee was found invalid and the marijuana
found was inadmissible
 Search of moving vehicle; Caroll doctrine
- Search of a moving vehicle is one of the doctrinally
accepted exceptions to the Constitutional mandate
that no search or seizure shall be made except by
virtue of a warrant issued by a judge
- earlier called the car search doctrine
- Caroll v US
o Decided during the prohibition times in the
US
o Prohibition times involved a nationwide
Constitutional ban on the sale, production,
importation, and transportation of alcoholic
beverages that remained in place from 1920
to 1933
o Police officers knew that the petitioner and
his cohorts were bootleggers, persons who
engaged in the selling of liquor in violation
of the law
o One day, one of the officers saw their car by
chance, they stopped the car, searched it,
and found 68 bottles of whiskey stashed
behind the back seat
o Automobiles are readily mobile and it is not
practicable to secure a warrant, because the
vehicle can quickly moved out of the locality
or jurisdiction
o Authorize officers are not allowed to stop
every car on the road, they should have
probable cause
- Pp v Libnao
o Peace officers are limited only to routine
checks where the examination of a vehicle is
limited to visual examination
o When a vehicle is stopped and subject to
extensive search, such would be permissible
only if the officers made it upon probable
cause
- Pp v Tuazon
o SC sustained the warrantless search of a
Gemini car because it found that the police
had probable cause to effect the search of
the car driven by the respondent
o Confidential informer tipped off the police
that the said car was going to deliver shabu
at a certain subdivision
o The information provided by the informer
turned out to be correct, the Gemini car was
spotted in the place
o The car was flagged down, they saw a gun
tucked in the respondent’s waits
o He was unable to produce any document to
support his right to possess the firearm
o When he stepped out of the car, the police
saw plastic sachets containing the white
powdery substance
o These circumstances taken together, were
sufficient to establish probable cause for the
warrantless search
- There was probable cause in the following instances
a. Where the distinctive odor of marijuana
emanated from the plastic bag carried by the
accused
b. Where a informer positively identified the
accused who was observed to have been
acting suspiciously
c. Where the accused fled when accosted by
policemen
d. Where the accused who were riding a
jeepney were stopped and searched by
policemen who had earlier received
confidential reports that said accused would
transport a large quantity of marijuana
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 e. Where the moving vehicle was stopped and
searched on the basis of intelligence
information and clandestine reports by a
deep penetration agent or spy—one who
participated in the drug smuggling activities
of the syndicate to which the accused
belonged
*not limited to visual search, unlike checkpoint, which is limited
to visual search
 Checkpoints
- Valmonte v De Villa
o Nowhere in its decision did it legalize all
checkpoints at all times and under all
circumstances
o Checkpoints are not illegal per se
o “under exceptional circumstances as where
the survival of organized government is on
the balance, or where the lives and safety of
the people are in grave peril, checkpoints
may be allowed and installed by the
government
- Searches conducted in checkpoints are valid for as
long as they are warranted by exigencies of public
order and are conducted in a way least intrusive to
motorists
- For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the
inspection of a vehicle is limited to a visual search,
said routine checks cannot be regarded as violative of
an individual’s right against unreasonable searched
- “there is nothing in the law that authorizes
checkpoint-manning policemen to order the occupant
of a car to get out of the vehicle for a search of both
his body and the vehicle
 Buy-Bust Operation
Two Tests:
a) Subjective View—focus on the intent of the accused
to commit a crime
b) Objective View—focus is on the particular conduct of
law enforcement officials or their agents and the
accused’s predisposition becomes irrelevant (This is
what we adopt)
 Plain view doctrine
- A policeman flags down a car for traffic violation
o The officer sees in front seat of the car a sub-
machinegun and 2 hand grenades, items not
normally issued to civilians
o No license found
o The officer has now reasonable ground to
seize the object without a warrant
- Officer goes to a residence to execute a warrant to
search a house for stolen antique images
o They see on a table, plastic sachets
containing crystalline substances, based on
the training ad experience, are illegal drugs
o Seizing them would not be an invalid
warrantless seizure
- Requisites of plain view doctrine:
a. The law enforcement officer in search of the
evidence has a prior justification for an
intrusion or is in position from which he can
view a particular are
b. Discovery of the evidence in plain view is
inadvertent
c. It is immediately apparent to the officer that
the item he observes may be evidence of a
crime, contraband or subject to seizure
- Officers saw firearms inside the vehicle when
petitioner opened the door. The shooting just took
place and it was reported that petitioner was involved
in the incident, it was apparent to the police officers
that the firearms may be evidence of a crime (Abelita
III v Doria)
- Where the object seized was inside a closed package,
the object itself is not in plain view, and therefore
cannot be seized without a warrant
o If the package proclaims its contents, by its
distinctive configuration, its transparency, or
if its contents are obvious to an observer,
then the contents are in plain view and may
be seized
The “inadvertence” requirement under the plain view
doctrine
- The officer must not have known in advance of the
location of the evidence and discovery is not
anticipated
- Plain view doctrine does not apply where the police
officers not just accidentally discover the evidence but
actually searched for it
The “immediate apparent” requirement under the plain
view doctrine
- The incriminating nature of the evidence becomes
apparent if the officer, at the moment of the seizure,
had probable cause to connect it to a crime without
the benefit of an unlawful search or seizure
o The rule does not require an unduly high
degree of certainty as to the incriminating
character of the evidence
- When executing police officers come across
immediately upon incriminating evidence not covered
by the warrat, they should not be required to close
their eyes to it, regardless whether it is evidence of the
crime they are investigating or evidence of some
other crime because it would needless to require the
police to obtain another warrant
Illustrative cases
- Abenes v CA
o RTC found that the accused is guilty beyond
reasonable doubt of illegal possession of
high-powered firearms and ammunition
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 under PD 1866 and under another
information for violation of teh election gun
ban
o The prosecution convincingly established
that the unlicensed .45 caliber pistol, tucked
into the right waist of the petitioner, was
readily visible, and could be seized without a
search warrant under the “plain view
doctrine”
o The SC declared that under the plain view
doctrine, objects falling in the “plain view” of
an officer who has a right to be in the
position to have that view are subject to
seizure and may be presented as evidence
o The law enforcement officers lawfully made
an initial intrusion because of the
enforcement of the gun ban and were
properly in a position from which they
particularly viewed the area
o The policemen came inadvertently across a
piece of evidence incriminating the petitioner
where they saw the gun tucked into his waist
o The gun was in plain view’
- Police who had just tracked down the petitioner and
who were informed of the involvement of the
petitioner in a shooting incident, saw firearms inside
the said vehicle as he opened the door of his car and
got off the same
o Police authorities were in the place because
it was where they caught up the petitioner
who sped up in his vehicle after initially
giving his agreement to go to the police
headquarters to shed light on the shooting
incident
o They saw firearms upon opening of the door
o It was apparent to the authorities that the
firearms may be evidence of the crime
- When a police officer sees a person placing plastic
sachet containing white crystalline substance into her
cigarette case is considered plain view (Esquillo v Pp)
- The police saw the arrestee throw away a tooter, also
saw various drug paraphernalia scattered on top of his
bed. It was plain view (Zalemda v Pp)
- The court allows the seizure of objects, articles or
papers not even described in the warrant when they
are in plain view of the officer. “The state is required
to adduce evidence, testimonial or documentary, to
prove the confluence of the essential requirements for
the doctrine to apply among which is that the officer
must discover incriminating evidence inadvertently”
(United Laboratories v Isip)
- Accused Veloso was charged of PD 1866 for illegal
possession of firearms and the latter was convicted by
the trial court
o The SC found that the accused was initially
arrested by virtue of a warrant allegedly for
kidnapping with ransom
o At the time he was sleeping inside the
boarding house, he was awakened by the
arresting officers who were heavily armed
o They pulled him out of the room, placed him
beside the faucet outside the room and tied
his hands and then put him under the care of
a police officer
o The other police officers remained inside the
room and ransacked the locked cabinet
where they found the subject firearm and
ammunition.
o The discovery, the accused was charged with
illegal possession of firearm and ammunition
o The cabinet which was locked and forcibly
opened, could no longer to be considered as
an “are within his immediate control”
o There was no comparable justification to
search through all the desk drawers and
cabinets or the other closed or concealed
areas in that room itself
o The plain view doctrine may not be used to
extend a general exploratory search from
one object to another until something
incriminating at last emerges
o The search was illegal, a violation of right to
unreasonable search and seizures
 Terry searches or stop and frisk; history of the
doctrine
- A police officer is on routine patrol duty and he
observes 2 people outside a variety store
o His experience and training tell him that their
acts are consistent with acts of people
criminal designs although no concrete
probable cause
o Mere suspicion is not sufficient to make a
valid arrest but his instincts honed by years
of experience in the streets tell him
something untoward is imminent. May he
stop the person?
- Terry v Ohio
o The police approached the men, identified
himself as a police and asked them to
identify himself as a police officer and asked
them to identify himself
o He patted down the outer garment of terry
and felt a gun in his pocket and removed the
same
o The court held that the acts of the officer
were acts which a reasonably prudent man
would have done in believing that Terry was
armed and that he presented a threat to the
officer’s safety while he was investigating his
suspicious behaviour
o The evidences the tempered act of a
policeman who, in the course of an
investigation, had to make a quick decision
35
 as to how to protect himself and others from
possible danger, and he took limited steps to
do so
o The court noted that the officer’s actions
were not invasive and overly intrusive
o He patted down the outer clothing of Terry
and his 2 companions
o He did not place his hands in their pockets or
under the outer surface of their garments
until he had felt weapons
o He never did invade Katz’ person beyond the
outer surfaces of his clothes
o Officer McFaddenn confined his search
strictly to what was minimally necessary to
learn whether the men were armed and to
disarm them once he discovered the
weapons.
o He did not conduct general exploratory
search
o He had reasonable grounds to believe that
petitioner was armed and dangerous, and it
was necessary for the protection of himself
o To take swift measures to discover the true
facts and neutralize the threat of harm if it
materialized
Summary of the Terry Search
- Dual purpose
1. The general interest of effective crime prevention and
detection
2. The safety of the police officer to take stops to assure
himself that the person with whom he deals with is
not armed with a deadly weapon that could be used
against him
- Stop
o He has a reasonable and articulable belief
that criminal activity has happened or is
about to happen
- Frisk
o Made after the stop must be done because
of a reasonable belief that the person
stopped is in possession of a weapon that
will pose a danger to the officer
o Must be mere pat down outside the person’s
outer garment and not unreasonably
intrusive
- Terry considered as constitutionally permissible a stop
and frisk despite while lack of a probable cause to
make full scale arrest
o It has to be a genuine reason, for the protect
the safety of the police officer
o The law enforcement officer has the authority
to stop and do a quick surface search of their
outer clothing weapons
o Allowed only if the officer has a reasonable
belief based o a genuine reason, and in the
light of the officer’s experience and the
surrounding circumstances, that a crime has
either taken place or is about to take place
and the person to be stopped is armed and
dangerous
- The acts must be justified by concrete facts pointing
at the least towards a possible criminal activity,
“specific and articulable facts which, taken together
with rational interferences from those facts,
reasonable warrant that intrusion”
- Esquillo v Pp
o There was a surveillance operation by the
police officers
o PO1 Cruz saw petitioner placing a plastic
sachet containing white crystalline substance
into her cigarette case. Given the training of
the law enforcement officer, it was instinctive
on his part to be drawn to curiosity and to
approach her
o The operation is the act of a police to stop a
citizen on the street, interrogate him, and pat
him for weapons or contraband
o The police officer should properly introduce
himself and make initial inquiries, approach
and restrain a person who manifests unusual
and suspicious conduct, in order to check
- Pp v Cogaed
o The police officer received a text message
from an informer
o Accused would be transporting marijuana
o He ordered the setting up of a checkpoint
o The driver of the jeepney disembarked and
signalled to the offer that he had 2
passengers transporting marijuana
o Was asked to open his bag which revealed
bricks of marijuana
o He was arrested
o The SC rejected the application of the stop
and frisk because there was no compliance
with the genuine reason which should
emanate from the officer’s own observation
and assessment of the facts
o The officer merely adopted the suspicion of
another person, the driver
 Consented searches
- When a person gives a law enforcement agent
permission to search in areas in which such person
has a reasonable expectation of privacy
- Requisites
1. The right exists
2. The person involved had knowledge, wither
actual or constructive, of the existence of
such right,
3. The said person has an actual intention to
relinquish the right
- It must voluntary
- It must be unequivocal, specific, and intelligently
36
 given, uncontaminated by any duress or coercion
- It must be shown by clear and convincing evidence
 Canine/Dog sniff test
- Florida v Jardines
o The government’s use of trained police dogs
to investigate the home and its surroundings
is a “search: within the meaning of the 4 th
Amendment
- United States v Place
o Sniff by a police dog trained to detect the
presence of narcotics in an airport is not a
search
o *Public place—exercise police power for the
protection of the general public
- Search is a unwarranted intrusion on a person’s
reasonable expectation of privacy
o The sniff does not require opening the
luggage since it does not involve exposure if
things that do not constitute contraband to
the public view
o Sniff merely reveals the presence of absence
of narcotics
o It is sui generis, and does not constitute a
“search”
- City of Indianapolis v Edmond
o Refused to recognize the mere “general
interest in crime control” as justification for
checkpoints
- Illinois v Caballes
o The warrantless dog sniffing of a vehicle is
permissible at routine lawful traffic stops
where the stop is not reasonable prolonged
 Use of thermal imaging device
- Kyllo v US
o Presumptively unreasonable without a -
warrant
 Effect of an illegal search and seizure; fruit of the
poisonous tree doctrine
- Sec 3(2)
o Any evidence obtained in violation of this or
the preceding section shall be inadmissible
for any purpose in any proceeding
- If the evidence is obtained through an unlawful
search, the seized item is inadmissible in evidence
against the accused
- A search warrant illegally obtained or secured or
which is issued in violation of the Constitution or the
rules may be quashed through the proper motion, as
in a motion to quash the search warrant is illegally
obtained
o Motion to suppress the evidence is in order
- GR: All searched and seizure made without a warrant
are invalid
o such failure will result in the application of
the exclusionary rule
- Exclusionary rule
o Prevents, upon proper motion or objection,
the admission of evidence illegally obtained
o Person whose rights were violated by the
search, the evidence being the proverbial
and jurisprudential “fruit of the poisonous
tree”
- Moncado v Pp
o Unconstitutionality of the searches and
seizure does not affect the admissibility of
the evidence obtained because “the criminal
should not be allowed to go free because the
constable has blundered”
Civil damages; criminal liability
- Do not provide for the filing of counterclaims for
damages against those who may have improperly
sought the issuance of the search warrant
- They have the right to seek damages, if the
circumstance warranted, by separate civil action for
the wrong inflicted on them by an improperly
obtained or enforced search warrant
- Independent civil action for violation of a person’s
right to be secure in his person, house, papers, and
effects against unreasonable searches and seizures
- This liability is separate and distinct from criminal
liability that may arise from RPC:
a. Violation of domicile
b. The search warrant maliciously obtained and
abuse in the service of those illegally obtained
c. Searching domicile without witnesses
BAIL- RULE 114
Bail
Security given for the release of a person in custody of
the law, furnished by him or a bondsman to guarantee
his appearance before any court as required under
certain specified conditions
- The appearance of the accused before the proper
court, whenever required by the court or by the Rules,
is also one of the conditions in all kinds of bail
- It is not intended to cover the civil liability of the
accused in the same criminal case
- The money deposited may be applied to the payment
of fines and costs while the excess, shall be returned
to the accused or to whoever made the deposit
- The grant of bail or its denial has no impact on the
civil liability of the accused that depends on
conviction by final judgment
Constitutional basis of the right to bail
- Sec 13, Art III
o “All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong shall, before
37
 conviction, be bailable by sufficient sureties,
or be released on recognizance as may be
provided by law. the right to bail shall not be
impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail
shall not be required”
- Right to bail springs from the presumption of
innocence
o Rooted in the guarantee of due process, and
is safeguarded by the constitutional right to
be released o bail, and further binds the
court to wait until after trial to impose any
punishment on the accused
- Fundamental tenents on bail
1. All persons charged, before their conviction
for a criminal offense, shall be entitled to bail
2. The suspension of the privilege of the writ of
habeas corpus does not impair the right to
bail
3. Excessive bail is not required
- Reiterated in ROC, Sec 7, Rule 114
o No person charged with a capital offense or
an offense punishable by reclusion perpetua
or life imprisonment, shall be admitted to
bail when evidence of guilt is strong,
regardless of the stage of the criminal
prosecution
- A person shall, before conviction, be accorded the
right to bail, unless he is charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, and the evidence of his
guilt is strong
o The grant or denial to a person charged with
an offense punishable by at least reclusion
perpetua or life imprisonment is made
dependent on whether or not the evidence
of guilt is strong
o The rule applies to rape or eve in coup d’etat
cases since both are punishable by reclusion
perpetua
o No distinction is made as to the political
complexion of or the moral turpitude
involved in the crime charged (Trillanes IV v
Pimentel)
o Test—whether it shows evident guilt or a
great presumption of guilt
o Sec 2, Rule 133
o “proof beyond reasonable doubt” is the
quantum of evidence necessary for
conviction, not to forfeit the constitutional
right to bail which merely requires that the
evidence of guilt is “strong”.
- Admission to bail is discretionary on the part of the
judge
o In offenses punishable by reclusion perpetua
to death, the accused has no right to bail
when the evidence of guilt is strong
o The proper action of the judge of to cancel
the bail instead of increasing it
- “the amount of bail should be high enough to assure
the presence of the accused when so required, but it
should be no higher than is reasonably calculated to
fulfil this purpose
Bail in the military
- Traditionally, not recognized and is not available in
the military
- Exception:
o Bill of rights—the right to a speedy trial is
given more emphasis in the military where
the right to bail does not exist
Bail in extradition proceedings
- Government of the US v Purganan
o Whether or not a person facing extradition is
entitled to bail
o Petititoner—right to bail of all persons,
exception if offense is punishable with
reclusion perpetua
o Court agreed
1. The use of word “conviction”
suggests that bail applies only when
a person has been arrested and
detained for violation of Philippine
criminal laws. It does not apply to
extradition proceeding because
extraction courts do not render
judgments of conviction or acquittal
2. The constitutional provision on bail
will not apply to a case like
extradition, where the presumption
of innocence is not an issue
3. Extradition proceedings are not
criminal in nature but sui generis, a
class itself. It will not call into
operation all the rights of an
accused under the Bill of Rights and
does not involve a determination of
guilt or innocence
o Bail is not a matter of right in extradition
cases. however, the judiciary has the
constitutional duty to curb grave abuse of
discretion and tyranny, and the power to
promulgate rules to protect and enforce
constitutional rights
Exception to the “no bail rule” in extradition proceedings
- Bail may be applied for ad granted as an exception,
only upon a clear and convincing showing:
a. That, once granted bail, the applicant will not
be a flight risk or a danger to the community
b. That there exist special, humanitarian, and
compelling circumstances (reciprocity)
o The applicant bears the burden of proving
the above two-tiered requirements with
38
 clarity, precision, and emphatic forcefulness
o Extradition is an executive responsibility and
not judicial
Purgan case re-examined
- 5 years after, in Gov of Hongkong Special
Administrative Region v Olalia, Jr., the Court ruled
anew on the issue of whether or not bail applies to
extradition cases in a petition which assailed the order
of the RTC of Manila, granting bail to a person subject
to extradition proceedings
- The Court pointed out some trends:
a. The growing importance of the individual
person in public international law who, in the
20th century, has gradually attained global
recognition
b. The higher value now being given to human
rights in the international sphere
c. The corresponding duty of countries to
observe these universal human rights in
fulfilling their treaty obligations
d. The duty of the Court to balance the rights of
the individual under our fundamental law
- In re-examining Purganan
a. The exercise of the State’s power to deprive a
individual of his liberty is not necessarily
limited to criminal proceedings
b. To limit bail to criminal proceedings would
be to close our eyes to our jurisprudential
history
- Bail has been granted to deportation cases, it sees no
justification why it should not allow in extradition
cases
Who furnishes the bail
- Applicant himself or by a bondsman
Obligation and right of the bondsman; arrest without a
warrant
1. The bondsman shall surrender the accused to the
court for execution of the final judgment. The
bondsman may arrest him or, upon written authority
endorsed on a certified copy of the undertaking,
cause him to be arrested by a police officer or any
other person of suitable age and discretion
2. An accused released on bail may be re-arrested
without the necessity of a warrant, if he attempts to
depart from the Philippines without permission of the
court where the case is pending
3. Once the obligation of bail is assumed, the bondsman
or surety becomes the jailer of the accused and is
sibrogated to al the rights and means which the
government possesses to make his control over him
effective
Applicant for bail must be in custody
- If bail is the security for the release of a person under
custody, bail cannot be availed of by someone outside
the custody of the law
- The same cannot be posted before custody over him
is acquired by the judicial authorities, either by his
lawful arrest or voluntary surrender. It would be
incongruous to grant bail to one who is free
o To discourage and prevent the practice
where the accused could just send another in
his stead to post his bail, without recognizing
the jurisdiction of the court by his personal
appearance
- The mere application for bail constitutes a waiver of
the defense of lack of jurisdiction over the person of
the accused
o The grant of bail is not mere jurisdiction over
the person but “custody” over his person
- Custody of the law signifies restraint on the person. It
is literally custody over the body of the accused. It
includes but is not limited to detention
o An accused confined in a hospital, may be
deemed to be in the custody of the law if he
clearly communicates his submission to the
court while confined in the hospital
o Defensor-Santiago v Vasquez
 On the basis of ex parte motio and
the peculiar circumstances
obtaining in that incident, the
Sadiganbayan authorized petitioner
to post a cash bail bond for her
provisional liberty without the need
for her personal incapacity and as a
matter of humane consideration
Bail to guarantee appearance of witnesses
- It may apply to material witness
o Bail to secure the appearance of a material
witness does not require custody of the law
o The witness may be ordered to post bail eve
if he is not under detention
o It is only when he refuses to post bail shall ge
be committed to prison
- Bail may also be required of witnesses when there is a
substitution of a criminal information
Bail for those not yet charged
- What entitles a person to bail is his being under the
custody of the law
- The application for bail shall be made with any court
in province, city or municipality where the person
arrested is held
- Ruiz v Beldia
o Person arrested was detained in Quezon City
o Before the PI, the arrestee obtained an Order
of Release in RTC Marikina City
o The Court ruled that the application for bail
should have been filed before the proper
Quezon City court and not in Marikina City
39

Effects of failure to appear at the trial
- Without justification despite due notice shall be
deemed waiver of his right to be present and the trial
may proceed in absentia
- The bondsma may arrest the accused for the purpose
of surrendering him
o The bondsman may also cause the accused
to be arrested by a police officer or any other
person of suitable age and discretion upon
written authority endorsed on a certified
copy of the undertaking
Court cannot require arraignment before the grant of bail
- Lavides v CA
o Whether or ot an accused must first be
arraigned before he may be granted bail
o Violation of the Special Protection of
Children Against Abuse, exploitation, and
Discrimination Act
o It was held that the grant of bail should not
be conditioned upon the prior arraignment
of the accused. In cases, where the bail
authorized bail should be granted before
arraignment; otherwise the accused will be
precluded from filing a motion to quash
which is to be done before arraignment. If
the information is quashed and the case is
dismissed, there would be no need for the
arraignmet of the accused.
Forms of Bail
a. Corporate surety
b. Property bond
c. Cash deposit
d. Recognizance
a. Corporate Surety
- Bail furnished by a corporation
- Under ROC, ay domestic or foreign corporation, which
is licensed as a surety and authorized to act as such,
may provide bail by a bond subscribed jointly by the
accused and an officer of the corporation duly
authorized by the board of directors
b. Property Bond
- Undertaking constituted as lien on the real property
given as security for the amount of the bail
- Within 10 days from the approval of the bond, the
accused shall cause the annotation on the certificate
of title on file with the ROD
- If the land is unregistrable—annotated in the
Registration Book in the space provided in the ROD of
the province or city where the land lies
- Registration made on the corresponding tax
declaration in the office of the provincial, city and
municipal assessor concerned.
- Within 10 days from the performance of the above
acts, the accused shall submit his compliance to the
court
- His failure to do so shall be sufficient cause for the
cancellation of the property bond, his re-arrest and
detention
c. Cash Deposit
- The accused or any person acting in his belhalf may
deposit in cash with the nearest collector of internal
revenue or provincial, city , or municipal treasurer or
the clerk of court where the case is pending, the
amount of bail fixed by the court or recommended by
the prosecutor who investigated or filed the case
- The accused shall discharge from custody upon
submission of the certificate of deposit and a written
undertaking showing compliance with the
requirements of the ROC
- The money deposited shall be considered as bail and
applied to the payment of fine and costs while the
excess shall be returned to the accused or to whoever
made the deposit
- A judge is not authorized to receive a deposit a cash
bail; nor should cash be kept in the judge’s office,
much less in his own residence
d. Recognizance
- Obligation of record entered into before some court
or magistrate duly authorized to take it, with the
condition to do some particular act, the most usual
condition in criminal cases being the appearance of
the accused for trial
- A person in custody may be released on recognizance
whenever allowed by law or by the ROC
- The release may be either on the recognizance of the
accused himself or that of a responsible person
- Release may be ordered in following cases
a. Violation of an ordinance, a light felony, or criminal
offense, the imposable penalty of which does not
exceed 6 months imprisonment and/or PHP2 000 fine,
under the circumstances provided in RA 6036
b. Where a person has been in custody for a period
equal to or more than the minimum of the imposable
principal penalty, without application of the
Indeterminate Sentence Law or any modifying
circumstances
c. Accused has applied for probation pending finality of
the judgment, but no bail was filed or the accused is
incapable of filing one
d. In case of offender held for physical and mental
examination, trial or appeal, i he is unable to furnish
bail and under the circumstances envisaged in PD 603
e. In summary procedure, when the accused has been
arrested for failure to appear when required. His
release shall be either on bail or on recognizance by a
responsible citizen acceptable to the court
Guidelines in fixing the amount of bail
- Basic rule in fixing the amount of bail is that excessive
40
 bail shall not be required
o The amount shall be high enough to assure
the presence of the accused when such
presence is required but no higher than is
reasonably calculated to fulfil this purpose
o Good of the public as well as the rights of
the accused
o When an accused has o means to bail
himself out, any fixed amount, o matter how
small would fall into the category of
excessive bail
o At the bottom, the principal factor
considered is the probability of the
appearance of the accused, or his flight to
avoid punishment
- Factors
a. Financial ability
b. Nature and circumstances of the accused
c. Penalty for the offense charge
d. Character and reputation of the accused
e. Age and health
f. Weight of the evidence against the accused
g. Probability of the accused appearing at the
trial
h. Forfeiture of other bail
i. The fact that the accused was a fugitive from
justice when arrested
j. Pendency of other cases where the accused
is to bail
- If accused does not have the financial ability to post
the amount of bail, he may move for its reduction,
submitting for that purpose such documents or
affidavits as may warrant the reduction he seeks
o The seeks of this motion shall enjoy priority
in the hearing of cases
- The order fixing the amount of bail is not appealable
Duration of the bail
- Shall be effective upon approval and unless cancelled
shall remain in force at all stages of the case until
promulgation of judgment of the RTC, irrespective of
whether the case was originally filed in or appealed to
it
- The bail posted by the accused can only be used
during the 15-day period to appeal and not during
the entire period of appeal and not during the entire
period of appeal
o Sec 2(a) of Rule 114
o Bail “shall be effective upon approval and
remain in force at all stages of the case,
unless sooner cancelled, until the
promulgation of the judgment of the RTC
Release or transfer of person in custody
- No person under detention by legal process shall be
released or transferred except
a. Upon order of the court
b. When he is admitted to bail
When bail is not required
- Generally, bail is not required when the law or the
ROC so provide
- When a person has been in custody for a period equal
to or more than the possible maximum imprisonment
prescribed for the offense charged, he shall be
released immediately, without prejudice to the
continuation of the trial or the proceedings or appeal
o May be sentenced in destierro he shall be
released after 30 days of preventive
imprisonment
o Bail is not required prior to the release of the
person in custody
- MTC or MCTC for an offense punishable by
imprisonment of less than 4 years 2 months, and 1
day, and the judge is satisfied that there is no
necessity for placing the accused under custody, he
may issue summons instead of a warrant of arrest
- Since no arrest is made, bail is not required
- Exceptions under Sec 1 of RA 6036
o Violation of a municipal or city ordinance
o A light felony and or a criminal offense
o Prescribed penalty for which is not higher
than 6 months imprisonment and/or fine of
PHP 2 000 or both where it is established
that he is unable to post the required cash or
bail bond
When bail is not allowed
1. A person charged with a capital offense, or an offense
punishable by reclusion perpetua or life
imprisonment, shall be not admitted to bal when
evidence of guilt is strong regardless of the stage of
the criminal prosecution
2. Bail shall not be allowed after a judgment of
conviction has become final
3. After the accused has commenced to serve sentence
When bail is a matter of right
- All persons in custody shall be admitted to bail as a
matter of right
- As a result, all criminal cases within the competence of
the MTC in Cities or MCTC are bailable as a matter of
right in following situations
a. Before conviction by the MTC, MeTC, MTC in
cities, or MCTC
b. After conviction by the courts mentioned in “a”
c. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment
d. * Before conviction of RTC of an offense
punishable by reclusion perpetua and life
imprisonment and the evidence of guilt is not
strong
41

- Eg
a. Person accused of homicide is entitled to bail as a
matter of right before his conviction
o Since the penalty is for the offense under Art
249 of the RPC is reclusion temporal.
o If he is convicted , his admission to bail
becomes, however, discretionary on the
court
b. A person accused of parricide (Art 246, RPC) shall
not be entitled to bail when evidence of guilt is
strong, since offenses are punishable by reclusion
perpetua
Remedy when bail is denied
- File a petition for certiorari if the trial court committed
a grave abuse of discretion amounting to excess or
lack of jurisdiction in issuing the said order
- Certiorari
o Remedy to annul the order of the court
denying the petition for bail
- Mandamus
o Be availed of to compel the grant of bail
which is a matter of right
- When bail is not a matter of right, the court is left with
no discretion but to grant the same
- The probability that the accused will escape or not
appear in the trial is not a ground for denial of the
right to bail
o It is a reason for the court to increase the bail
bond to assure his appearance
When bail is a matter of discretion
- Sec 4 (b) of Rule 114
- When the accused has been convicted in the RTC of
an offense not punishable by death, reclusion
perpetua or life imprisonment the admission to bail
becomes discretionary
o A hearing must be conducted WON the
prosecution refuses to present evidence and
the prosecutor must be notified to require
him to submit his recommendation
o The notice of hearing applies to all cases
whether bail is a matter of right or a matter
of discretion
- If the penalty is punishable by death, reclusion
perpetua or life imprisonment, bail should be denied
because this means that the evidence of guilt is not
just strong
o His guilt has actually been proven beyond
reasonable doubt
- It is a misconception that when an accused is charged
with the crime of murder, he is not entitled to bail at
all
o The grant of bail with the penalty of
reclusion perpetua is discretionary on the
part of the trial court
o Accused is entitled to bail but no longer “as a
matter of right”
o It is discretionary and calls for a judicial
determination that the evidence of guilt is ot
strong in order to grant bail
Where application for bail is to filed after conviction by the
RTC
- The application of bail may be filed and acted upon
by the trial court even if a notice of appeal has already
been filed provided that the trial court has not yet
transmitted the original record to the appellate court
o If the original record has already been
transmitted to the appellate court, then the
application shall be filed with the said
appellate court
- Sec 6, Rule 120
o The court promulgating the judgment shall
have authority to accept the notice of appeal
and to approve the bail bond pending
appeal
- If the decision of the RTC convicting the accused
changed the nature of the offense from non-bailable
to bailable, the application for bail can only be filed
with and resolved by the appellate court
- If the application for bail is granted, the accused may
allowed to continue on provisional liberty during the
pendency of the appeal under the same bail
o It subject to the consent of the bondsman
When application for bail after conviction by the RTC shall
be denied
- If the penalty imposed is death, reclusion perpetua or
life imprisonment, bail should be denied since the
conviction indicates strong evidence of guilt based on
proof beyond reasonable doubt
- Penalty imposed by the trial court is not any of the
above but merely imprisonment exceeding 6 years,
the accused shall be denied bail, or his bail already
allowed shall be cancelled, if the prosecution shows:
a. Recidivist or a quasi0recidivist, a habitual
delinquent or has committed the crime
aggravated by the circumstance of
reiteration
b. That the accused has previously escaped
from legal confinement, evaded
sentence, or violated the conditions of
his bail without valid justification
c. Accused committed the offense while
under probation, parole or conditional
pardon
d. Circumstances of his case indicate the
probability of flight if released on bail
e. There is undue risk that he may commit
another crime during the pendency of
the appeal
- The court is not authorized to deny or cancel the bail
42
 ex parte
- The rule requires “notice of the accused
- The resolution of the RTC denying or cancelling the
bail may be reviewed the appellate court motu
proprio or on motion or on motion of ay party after
notice to the adverse party in either case
Bail pending appeal where penalty imposed exceeds six
years
- The discretionary nature of the grant of bail pending
appeal does not mean that bail should automatically
be granted absent any of the circumstances
mentioned in the 3rd par of Sec 5, Rule 114, ROC
- 2 scenarios where the penalty imposed on the
appellant applying for bail is imprisonment exceeding
6 years
1st scenario 2nd scenario
Circumstances enumerated in The existence of at least 1 of
the said paragraph not being the said circumstances
present
Bail is a sound discretion—if The appellate court exercises
none of the circumstances a more stringent discretion,
mentioned in the 3rd that is, to carefully ascertain
paragraph is present, the whether any of the
appellate court has discretion enumerated circumstances i
to grant or deny bail fact exists.
Application of bail may be Finding that one of the said
denied even if the bail- circumstances is present will
negating circumstances in the not automatically result in the
3rd par are absent grant of bail
Such finding will simply
authorize the court to use the
less stringent sound
discretion approach
- The inexcusable non-appearance of the appellant not
only violated the condition of his bail that “he shall
appear” before the court “whenever required” by the
court or the rules
o Also showed the probability of flee or
commit another crime while released on bail
Hearing of application of bail in offenses punishable by
reclusion perpetua, or life imprisonment; burden of proof
in bail application
- To be conducted when a erson is in custody for the
commission of an offense punishable by death, RP, LI
o In the hearing, the prosecution has the
burden of showing that the evidence of guilt
is strong
o Hearing shall be summary
o Hearing should be conducted by the court to
determine the existence of strong evidence
or lack of it against the accused, to enable
the judge to make intelligent assessment of
the evidence presented by the parties
- Gacal v Infante
o Prosecution for murder, the accused was
granted bail without a hearing and upon the
recommendation of the public prosecutor.
o The judge dispensed with the hearing
because the accused did not file a petition
for bail and that’s the prosecutor’s
recommendation of bail had the effect of a
waiver of the need for a bail hearing
o “unwarranted”—even when there is no
petition for bail, in a case like the one before
the trial court, a hearing should still be held
o The fact that the public prosecutor
recommended bail for the accused did not
warrant dispensing with the hearing
o “For one, the public prosecutor’s
recommendation, albeit persuasive, did not
necessary bind the trial judge, in whom alone
the discretion to determine whether to grant
bail or not was vested. Whatever the public
prosecutor recommended, including the
amount of bail, was on-binding. Nor did such
recommendation constitute a showing that
the evidence of guilt was not strong”
o The fact that the prosecutor interposed no
objection to the application for bail by the
accused does not relieve the judge of the
duty to set the motion for bail for hearing
- The absence of objection from the prosecution is
never a basis for the grant in such cases
o The duty to exercise discretion on the matter
is not resposed upon the prosecutor because
judicial discretion is the domain of the judge
Hearing to determine probable cause is not the same as the
hearing for bail
- The bail hearing is separate and distinct from the
initial hearing to determine the existence of probable
cause
- The court sis not sustain the justification of the judge
that he granted bail, because he found the evidence
of the prosecution weak in a hearing to determine a
probable cause, not in a hearing for petition for bail
o Jorda v Bitas
o The hearing for bail is different from the
determination of the existence of probable
cause
o The latter takes place prior to all
proceedings, so that if the court is not
satisfied with the existence of a probable
cause, it may either dismiss the case or deny
the issuance of the WOA or conduct a
hearing to satisfy itself of the existence
probable cause
o It is only after this proceeding that the court
can entertain a petition for bail where a
subsequent hearing is conducted to
determine if the evidence of guilt is weak or
not
43

Duties of the trial judge in a petition for bail in offenses
punishable by reclusion perpetua, life imprisonment or
death
- Narciso v Santa Romana-Cruz
o Enumerated the following duties of the trial
judge in a petition for bail in offenses
punishable by death, RP, or LI:
a) Notify the prosecutor of the hearing of the application
for bail or require him to submit his recommendation
b) Conduct a hearing of the application for bail
regardless of whether or not the prosecution refuses
to present evidence to show that the guilt of the
accused is strong for the purpose of enabling the
court to exercise its sound discretion
c) Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the
prosecutor
d) If the guilt of the accused is not strong, discharge the
accused upon the approval of the bail bond.
Otherwise, the petition should be denied
- Within 48 hours after the hearing the court shall issue
an order containing a brief summary of the evidence
adduced before it, followed by its conclusion of
whether or not the evidence of guilt is strong
Evidence in bail hearing are automatically reproduced at
the trial
- Shall be considered automatically reproduced at the
trial
- However, any witness during the bail hearing may,
upon motion of either party, be recalled by the court
for additional examination except if such witness is
dead, outside the Philippines, or otherwise unable to
testify
Capital Offenses
- An offense which, under the law existing at the time of
its commission and of the application for admission to
bail , may be punished with death
- Is determined by the penalty prescribed by law and
not the penalty to be actually imposed
- The imposition of the death penalty is now prohibited
by RA 9346, enacted into law o June 24, 2006, Sec (2)
of RA 9346 provides that “in lieu of the death penalty,
the following shall be imposed:
a) The penalty of RP, when the law violated makes use of
the nomenclature of the penalties of the RPC
b) The penalty of the LI, when the law violated does not
make use of the nomenclature of the penalties of the
RPC
Effect of RA 9346 o the graduation of penalties
- People v Bon
o Whether or not the enactment of RA 9346
resulted in the statutory interdiction of the
death penalty
o Whether RA 9346 intended to delete the
word “death” as expressly provided for in the
graduated scale of penalties under At 71
o The court ruled in the affirmative and found
RA 9346 to unequivocally bar the application
of the death penalty, as well as to expressly
repeal all such statutory provisions requiring
the application of the death penalty
o Debarring of the death penalty through
RA9346 did not correspondingly declassify
those crimes previously catalogued as
“heinous”
o The amendatory effects of RA 9346 extend
only to the application of the death penalty
but not to the definition or classification of
crimes
o The penalty “death”, as utilized in Art 71 of
the RPC, shall no longer form part of the
equation in the graduation of penalties
Where application or petition for bail may be filed
- May be filed with the court where the case is pending
o If the judge is absent or unavailable, then the
application may be filed with any RTC judge,
MeTC judge, MTC judge, or MCTC Judge in
the province, city, or municipality
o Judges who approve applications for bail of
accused whose cases are pending in other
courts are guilty of gross ignorance of the
law
- When the accused is arrested in a province, city, or
municipality other than where the case is pending, the
application for bail may also be filed with any RTC of
said place
o If no judge is available, then with any MTC,
MeTC, MCTC judge in the said place
o When the bail is filed with the court other
than where the case is pending, the judge
who accepted the bail shall forward it,
together with the order of release and other
supporting papers, to the court where the
case is pending, which may, for good
reasons, require a different one to be filed
- Where the grant of bail is a matter of discretion or the
accused seeks to be released on recognizance, the
application may only be filed with the court where the
case is pending on trial or appeal (Sec 17(b), Rule 114,
ROC)
Increase or reduction of bail
- Even after the accused is admitted to bail, teh amount
of bail may be either be increased or reduced by teh
court upon good cause (Sec 20, Rule 114, ROC)
- When increases, the accused may be committed to
custody if he does not give bail in the increased
amount within a reasonable period (Sec 20, Rule 114,
ROC)
Bail for accused originally released without bail
- If, upon the filing of the complaint or information the
44
 accused is released without bail, he may later be
required to give bail, in the amount fixed by the court,
whenever at any subsequent stage of the proceedings
a strong showing of guilt appears to the court
o If he does not give bail, he may be
committed into custody (Sec 20, Rule 114,
ROC)
Forfeiture of bail; bench warrant
- One of the conditions of the bail is for the accused to
appear before the proper court whenever required
(Sec 2(b), Rule 114, ROC)
o When his presence his required, his
bondsmen shall be notified to produce him
before the court on a given date and time
(Sec 21, Rule 114, ROC)
- If he fails to appear in person as required, his bail shall
be declared forfeited (Order of forfeiture)
o The bondmen must, within the period
a) Produce the body of their principal or
give the reasons for his non-production
b) Explain why the accused did not appear
before the court when first required to
do so failing in these two requirements,
a judgment shall be rendered against
the bondsmen, jointly and severally, for
the amount of the bail (Sec 21, Rule 114,
ROC)
o If the bondsmen move for the mitigation of
their liability, the court is required not to
reduce or otherwise mitigate the liability of
the bondsmen, unless the accused has been
surrendered or is acquitted (Sec 21, Rule 114,
ROC)
- Judgment against the bondsmen cannot be entered
unless such judgment is preceded by an order of
forfeiture ad an opportunity given to the bondsmen
to produce and an opportunity given to the
bondsmen to produce the accused or to adduce
satisfactory reason for their inability to do so
o An order of forfeiture is interlocutory and
merely requires the bondsmen “to show
cause why judgment should not be rendered
against them for the amount of the bond”
- When the accused fails to appear in court despite
notice, the court may issue a bench warrant for his
arrest
o A bench warrant is a writ issued directly by a
judge to a law enforcement officer, for the
arrest of a person who has been held in
contempt, has disobeyed a subpoena, or has
to appear at a hearing or trial
 Sec 9 of Rule 71 of the ROC
 Under the provision when a person
released on bail fails to appear on
the day fixed for the hearing, the
court may issue another order of
arrest or may order the bond his
appearance be forfeited and
confiscated, or both
Cancellation of the bail; remedy
1. Cancellation but application of the bondsmen
- Bail may be cancelled upon application of the
bondsmen with due notice to the prosecutor
a) Upon surrender of the accused
b) Proof of his death
2. Automatic cancellation
- Bail may be deemed automatically cancelled upon
a) Acquittal of the accused
b) Dismissal of the case
c) Execution of the judgment of conviction
- Sec 5 of Rule 115
o Allows the cancellation of bail where the
penalty imposed by the trial is imprisonment
exceeding 6 years if any of the grounds in
the said section is present as when the
circumstances indicate the probability of
flight
o The order cancelling the bail is subject to
review by the appellate court, motu proprio
or on motion
o Chua v CA
o The appropriate remedy against the trial
court’s order cancelling teh bail is by filing
with the CA a motion to review the said
order in the same regular appeal
proceedings which the appellant himself
initiated, such motion being an incident to
his appeal.
o The filing of a separate petition via a special
civil action for certiorari before the appellate
court is proscribed and contravenes the rules
against multiplicity of suits and constitutes
forum shopping
Application for on admission to bail not bar to objections
on illegal arrest, lack or irregular preliminary investigation
- Shall not bar him from challenging both the validity of
his arrest or the legality of the warrant issued
o Provided that he raises them before entering
the plea
o It shall not bar the accused from assailing the
regularity or questioning the absence of a
preliminary investigation of the charge
against him provided the same is raised
before he enters his plea (Sec 26, Rule 114,
ROC)
o The court shall resolve the matter as early as
practicable but not later than the start of the
trial of the case
- Sec 26, Rule 114
o Is a new rule intended to modify previous
rulings that an application for bail or the
admission to bail by the accused shall be
considered as a waiver of his right to assail
45
 the warrant issued for his arrest on the
legalities or irregularities
o The new rule is curative in nature—it was
designed to curb evils in procedural rules
o Procedural rules, as a general rule, operate
retroactively, even without express provisions
to actions yet undetermined at the time of
their effectivity
- The former ruling that the posting of bail constitutes a
waiver of any irregularity in the issuance of a warrat of
arrest has already been superseded by Sec 26, Rule
114of ROC
o The principle that the accused is precluded
from questioning the legality of the arrest
after arraignment is true only if he voluntarily
enters his plea and participates during trial,
without previously invoking his objection
thereto
Rule 115- Rights of the Accused
a. To be presumed innocent until contrary is
proven beyond reasonable doubt
b. To be informed of the nature and cause of
the accusation against him
c. To be present and defend in person, and by
counsel, at every stage of the proceedings,
from arraignment to promulgation of the
judgment
i. The accused may waive his
presence at the trial pursuant to the
stipulations set forth in his bail
unless his presence is specifically
ordered by the court
ii. The absence of the accused without
justifiable cause at the trial of which
he had notice shall be considered a
waiver of his right to be present
iii. When the accused under custody
escapes, he shall be deemed to
have waived his right to be present
on all subsequent trial dates until
custody over him is regained
iv. Upon motion, the accused may be
allowed to defend himself in person
when it sufficiently appears to the
court that he can properly protect
his rights without the assistance of
counsel
d. To testify as a witness in his own behalf but
subject to cross-examination on matters
covered by direct examination
i. His silence shall not in any manner
prejudice him
e. To be exempt from being compelled to be
witness against himself
f. To confront and cross-examine the witnesses
against him at the trial
i. Either party may utilize as part of its
evidence the testimony of a witness
who is deceased, out of or cannot
with due diligence be found in the
Philippines, unavailable, or
otherwise unable to testify, given in
another case or proceeding, judicial
or administrative, involving the
same parties and subject matter, the
adverse party having the
opportunity to cross-examine
g. To compulsory process issued to secure the
attendance of witnesses and production of
other evidence in his behalf
h. To have speedy, impartial, and public trial
i. To appeal in all cases allowed in the manner
prescribed by laws
Presumption of innocence
- Sec 14(2) of Art III of the 1987 Constitution
“..In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved...”
- Imposes upon the People of the Philippines
o To prove beyond reasonable doubt not only
each element but also to identify of the
accused as the criminal
- It prevails over the presumption of regularity in the
performance of official duty
- The testimony of police officers, who apprehended
the accused, is usually accorded full faith and credit
because of the presumption that they have performed
their duties regularly
Proof beyond reasonable doubt
- Every criminal conviction requires of the prosecution
to prove 2 things:
o The fact of the crime
o The presence of all the elements of the crime
o The fact that the accused is the perpetrator
of the crime
- Moral certainty is only required, or that degree of
proof which produces conviction in an unprejudiced
mind
- Presumption of innocence is not meant to be forever.
o It ends when it is overcome in a final
conviction
o Proof beyond reasonable doubt is
indispensable, to overcome the
constitutional presumption of innocence
Prosecution must rest on its own merits to prove guilt of
accused
- The conviction of the accused must stand on the
strength of the prosecution’s evidence, not on the
weakness of the defense which the accused put up
46
The equipoise rule
- a situation where the court is faced with conflicting
versions of the prosecution and the defense, and
where the evidence, facts and circumstance are
capable of 2 or more explanations, one of which is
consistent with the innocence of the accused and the
other consistent with his guilt
- where the evidence in a criminal case is evenly
balanced, the constitutional presumption of
innocence titlts the scales in favour of the accused
- There is no equipoise if the evidence is not evenly
balanced. It is not applicable where the evidence
presented is not equally weighty
Effect of plea of self-defense
- if the accused admits killing the victim, but pleades
self-defense, the burden of evidence is shifted to him
to prove such defuses by clear, satisfactory, and
convincing evidence
- self-defense , when invoked, as a justifying
circumstance implies the admission by the accused
that he committed the criminal act
Right to be informed of the nature and cause of accusation
- the accused if entitled to be informed of the nature
and cause
- it is necessary for the complaint or information to
contain those matters required by the statute or ROC
a. name and surname of the accused
b. name and surname of the offended party
c. to state with sufficient clarity and in an ordinary and
concise language, the acts and omissions constituting
the offense; to state the designation of the offense
d. to state, the qualifying and aggravating circumstances
e. to sufficiently allege that the crime was committed or
its essential ingredients occurred at some place within
the jurisdiction of the court
f. to allege the date of the commission
g. in offenses against property, if the name of the
offended party is unknown, the property must be
described with such particularity to properly identify
the offense charged
- it must be stated in ordinary and concise language,
not necessarily the language used in the stature, but
in terms sufficient to enable a person of common
understanding to know what offenses is being
charged and the attendant qualifying and aggravating
circumstances
o to authorize the quashal, upon motion of the
accused, of an information that fails yo allege
the acts constituting the offense
- Lagarde
o Accused-appellant was charged with simple
rape
o The TC convicted the accused of rape
aggravated by minority of the victim, use of
bladed weapon and force, and uninhabited
place in view of the location of the offense
o the qualifying circumstance were not set
forth in the indictment on which he was
arraigned
o the SC ruled that circumstances not
specifically alleged in the information cannot
be appreciated
- Dico v CA
o May the accused be convicted for violation
of BP 22 if the check described in the
information is not the check allegedly issued
and admitted in evidence
o Charged with BP 22
o During his appeal, the Court discovered a
discrepancy between the check marked as
exhibit and the check described i the
information
o The identity of the check enters into the 1 st
element of the offense under Sec 1 of BP 22
—that the person draw or issues a check on
account or for value
o There being a discrepancy in the identity of
the checks described in the information and
that presented in court
o The petitioner’s constitutional right to be
infored of the nature of the offense charged
will be violated if his conviction is upheld
- There is violation of the constitutional rights of the
accused to be informed when there is a variance
between the dates of the check as alleged in the
information and as indicated in the documentary
evidence presented and marked as exhibit
- Gutierrez v Hernandez
o The judge set a criminal case for arraignment
and hearing knowing fully well that no
preliminary investigation has been
conducted and no information had yet been
filed before his court
- Petitioners where charged with violation of Anti-
Carnapping Act of 1992
o The information did not allege the supposed
felonious act of the petitioners was
committed by means of violence against or
intimidation of any person, or force upon
things
o The penalty sentenced to the petitioners
were in excess of that provided for simple
carnapping
o The SC agreed with the petitioners with
respect to the erroneous penalty imposed
o The Court noted that the information
charging the petitioners did not allege that
the carnapping was committed by means of
violence against, or intimidation of, any
person, or force upon things
- Does the conviction for the sale and possession of
shabu violate the accused’s constitutional right to be
informed of the nature and causes of the accusations
47
 against him if the fact that was established and
proven during the trial was the sale and possession of
ephedrine, a regulated drug?
o The SC answered in negative
o The difference between ephedrine and
methamphetamine is the presence of a
single atom of oxygen in the former.
o The removal of the oxygen in ephedrine will
produce methamphetamine
o His right to the informed because, when an
accused is charged with specific crime, he is
duly informed not only of such specific crime,
but also of the lesser crime or offenses
included (Pp v Noque)
- When an ambiguity exist in the complaint or
information, the court has o other recourse but to
resolve the ambiguity in favour of the accused
- When the counsel of the accused actively participated
in the proceedings, this indicates that the accused was
fully aware of the charges against him
o Otherwise, his counsel would have objected
and informed the court of the blunder
Right of counsel of the accused and of persons arrested,
detained or under custodial investigation, RA 7438
- Bill of Rights guarantees the right of counsel to an
accused
o Art II, 1987 Constitution of the PH
o Sec 1(c) of Rule 115
o The accused has the right to xxx defend in
persona and by counsel at every stage of the
proceedings, from arraignment to
promulgation of judgment
- One need not, be an accused to avail of the right to
counsel and the right to counsel does not commence
only during the trial
o Every person under custody of the law ejoys
the right
- “In absence of any lawyer, no custodial investigation
shall be conducted and the suspected person can only
be detained by the investigating officer in accordance
with Art 125
o RA 7438 mandates that a counsel shall at all
times be allowed to confer privately with the
person arrested, detained, r under custodial
investigation
- The purpose of providing counsel to a person under
custodial investigation is to curb the police-state
practice of extracting a confession that leads suspects
to make self-incriminating statements
o Implies a correlative obligation on the part of
the police investigator to explain, and
contemplates an effective communication
that results in an understanding of what is
conveyed
- Failure to inform the suspect of his right to counsel
during custodial investigation attains significance only
if the person under investigation makes a confession
in writing without aid of counsel and which is them
sought to be admitted against the accused during the
trial
o The suspect must be advised that he has the
option to reject the counsel provided for him
by the police authorities, which fact must
similarly appear in the extrajudicial
confession
o The participation of a lawyer in the
proceedings was confined to the notarization
of the suspect’s confession, the same was not
considered, the kind of legal assistance that
should be accorded to the suspect
- Mere inquiry on the commission of a crime by law
enforcement authorities does not automatically
trigger the application of the right of counsel
o The moment the police officer tries to elicit
admissions or confessions or even plain
information from a suspect, the latter should,
at this juncture, be assisted by counsel,
unless he waives this right in writing and in
the presence of the counsel
- The right to counsel applies in certain pre-trial
proceedings that can be deemed critical stages in the
criminal process like in a preliminary investigation
-
No right to counsel in a mere police line-up
- A police line-up is not part of the custodial inquest
since the accused at that stage is not yet being
investigated
- People v Lara
o The accused pointed out several errors,
attended his conviction.
o The errors included the alleged failure of the
police to furnish him with counsel when he
was placed in a police line-up to be
identified by the witnesses
o Police line-up is not the starting point of
custodial investigation
Right to choose a counsel is not plenary; right may be
waived
- No denial of the right to counsel where a counsel de
oficio is appointed during the absence of the
accused’s counsel de parte, or in this case the regular
counsel de oficio, pursuant o the court’s desire to
finish the case as early as practicable under the
continuous trial system
o The choice of counsel by the accused in a
criminal prosecution is not a plenary one
- The right to counsel may be waived but to insure that
the waiver is voluntary ad intelligent, the waiver must
be in writing and in the presence of the counsel of the
accused
Competent and independent counsel
- He is willing to fully safeguard the constitutional rights
48
 of the accused
o As distinguished from one who would be
merely giving a routine, peremptory and
meaningless recital of the individual’s
constitutional rights
o Transmission of meaningful information
rather than just the ceremonial and
perfunctory recitation of an abstract
constitutional principle
- An extrajudicial confession executed by a suspect
assisted by a counsel who failed to meet the exacting
standards of an independent and competent counsel
is deemed an incounseled confession and
inadmissible in evidence
- Efficient ad truly decisive and legal assistance and not
a simple perfunctory representation
Right to counsel in administrative cases
- There is no such requirement in administrative
proceedings
o A party in an administrative proceeding may
be or may not be assisted by counsel
- A party in an administrative inquiry may or may not be
assisted by counsel, irrespective of the nature of the
charges and of respondent’s capacity to represent
himself, and no duty rests on such body to furnish the
perso being investigated with counsel
Meaning of custodial investigation; extended meaning
- “any questioning initiated by law enforcement
authorities after a person is taken into custody or
otherwise deprived of his freedom of action in any
significant manner
o This right cannot be waived except in writing
and in the presence of counsel and any
admission obtained in violation of this rule
shall be inadmissible in evidence
- RA 7438
o Individual has ot been formally arrested but
has merely been invited for questioning
o “custodial investigation” shall include the
practice of issuing an invitation to a person
who is investigated in connection with an
offense he is suspected to have committed,
without prejudice to the liability of the
“inviting” officer for any violation of law
Right of speedy trial
- Sec 14 (2) of Art III of the Constitution
o In all criminal prosecutions, the accused shall
xxx shall enjoy the right xx to have speedy,
impartial and public trial xxx
o The essence of the judicial function is that
justice shall be impartially administered
without unnecessary delay
- The principle of speedy trial is a relative term and
necessarily involves a degree of flexibility
o The essential ingredient is orderly,
expeditious and not mere speed
- Does not preclude justifiable postponements and
delay when warranted by the situation
o Particular regard must also be taken of the
facts and circumstances peculiar to each case
When the right to speedy trial is deemed violated
- Only when the proceedings are attended by vexatious,
capricious, and oppressive delays, or when unjustified
postponements of the trial are asked for and secured,
or when without cause or justifiable motive, a long
period of time is allowed to elapse without the party
having his case tried
- Factors
a. Duration of the delay
b. Reason
c. Assertion of the right or failure to assert it
d. Prejudice caused
Right to speedy disposition to cases; cases covered by the
right
- Sec 16, Art III
- All persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or
administrative bodies”
- Extends to all parties in all cases, be it civil
administrative in nature, as well as proceedings, either
judicial or quasi-judicial
- What the constitution prohibits are unreasonable,
arbitrary, and oppressive delays which render rights
nugatory
o Mere mathematical reckoning of the time
involved is not sufficient since the facts and
circumstances peculiar to the case must also
be considered
- A judge’s illness should not be an excuse for his
failure to render the corresponding decision or
resolution within the prescribed period
o In case of poor health, the judge concerned
needs only to ask the SC for an extension of
time decide cases
- The designation of a judge to preside over another
sala is an insufficient reason to justify delay in
deciding a case
o Additional assignments are no excuse for
delays in resolving cases
o Judges are not allows, upon motion or letter
request, or extensions of the reglementary
period in deciding cases
o Delays caused by poor health, old age, heavy
caseload, among other, do not totally
absolve a judge but only serve to mitigate
the penalty from liability
- The absence of a branch clerk of court should not
affect the prompt disposition of cases
- The non-submission of the transcript if stenographic
notes by stenographers would not relieve judges of
their duty
49
 o Judges are directed to take down notes of
salient portions of the hearing and proceed
in the preparation of decisions without
waiting for the transcribed stenographic
notes
- The defects in a motion are not reasons for a judge
not to act on the same
o If a judge believes that the motions pending
before him were defective, he could have
simply acted on the said motions and
indicated the supposed defects instead of
just leaving them unresolved
Dismissal based on a violation of the right to speedy
disposition of cases
- A criminal case may be dismissed for violation of a
person’s right to speedy disposition of cases
- Coscollueta v Sandiganbayan
o Investigate the anomalous purchase of
medical and agricultural equipment in the
amount of 20M which allegedly happened
around a month before the petitioner, former
governor of his province, stepped down from
office
o 2003—the assigned investigation officer
prepared a resolution finding probable cause
against the petitioner and his co-accused for
violation of the Anti-graft and Corrupt
Practices Act
o Information was filed with the
Sandiganbayan , 2009
o 2009—petitioner filed a motion to quash
arguing that his constitutional right to
speedy disposition of cases was violated
o It was only after 8 years
o The Court recolved the issue i favour of the
petitioner, and ordered the Sandiganbayan
to dismiss the case
o It was not the petitioner’s duty to follow up
on the prosecution of their case
o It was the office of the ombudsman’s
responsibility to expedite the same within
the bounds of reasonable timeliness
o There was unjustified length of time
o Resulted in the acquittal of the petitioners
Approaches to speedy trial
- Perez v Pp
o Ways of eliminating some of the uncertainty
which courts experience protecting the right
a. Fixed-time period, requires a criminal defendant to be
offered a trial within a specified time period
b. Demand-waiver rule, defendant waives any
consideration of his right to speedy trial for any
period prior to which he has not demanded trial
a. A prior demand is a necessary condition to
the consideration of the speedy trial right
- The court went on to adopt a middle ground:
a. Conduct of both the prosecution and defendant are
weighed
b. The test necessarily compels courts to approach
speedy trial cases o an ad hoc basis where courts
should assess in determining whether a particular
defendant has been deprived of his right such as the
length of the delay, the reason for the delay, the
defendant’s assertion of hs right, prejudice to the
defendant
Length of the delay
- Until these is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the
other factors that go into the balance
Reason for the delay
Different weights should be assigned to different
reasons
- A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily
against the government
- A missing witness, should serve to justify appropriate
delay
Defendant’s responsibility to assert his right
- Strength of his efforts will be affected by the length of
the delay, to some extent by the reason for the delay,
and most particularly by the personal prejudice, which
is not always readily identifiable, that he experiences
Prejudice to the defendant
- Should be assessed in the light of the interests of
defendant which the speedy trial right was designed
to protect
- Interests
o To prevent oppressive pretrial incarceration
o To minimize anxiety ad concern of the
accused
o To limit the possibility that the defense will
be impaired
Effect of the violation of the right to speedy tria
- The TC may dismiss a criminal case
- Motion nolle prosequie
- If the accused is not brought to trial within the
prescribed time and is deprived of his right to a
speedy trial or disposition of the case on account of
unreasonable or capricious delay caused by the
prosecution
- A dismissal based on the violation of the right to
speedy trial is equivalent to an acquittal, and double
jeopardy may attach even if the dismissal is with the
consent of the accused
o It would bar further prosecution of the
accused for the same offenses
Remedy where the accused is not brought to trial within
the time limit
- Sec 9, Rule 119
o The information may be dismissed on the
50
 motion of the accused on the ground of
denial of his right to speedy trial
o Failure of the accused to move for dismissal
prior to trial shall constitute a waiver of the
right to have the information dismissed
under the said section
- Guidelines for decongesting Holding Jails by
Enforcing the Rights of Accused Persons to Bail and to
Speedy Trial
o Duty of the trial court, the public or private
prosecutor, and the defense counsel to
ensure, compliance with the time limits in the
prosecution of the case against a detained
accused
o Excluded delays in Sec 19 of the ROC and the
Speedy Trial Act of 1998:
a. Case shall be raffled and referred to the TC to which it
is assigned within 3 days from filing of the information
b. The court shall arraign the accused within 10 days
c. The court shall hold pre-trial conference within 30
days after arraignment or within 10 days if the
accused is under preventive detention
a. If direct testimonies to be presented through
judicial affidavits—not more than 20 days
from arraignment
d. The court shall set a trial of the case not later than 30
days from the termination of the pre trial conference
e. The court shall terminate the regular trial within 180
days, or the trial by judicial affidavits within 60 days,
reckoned from the date trial begins, minus the
excluded delays or postponements
- In the event of the failure to observe the above time
limits, the case against the accused may be dismissed
on the ground of denial of the right to speedy trial
Waiver of the right to speedy trial
- May be waived
- Tan v People
o No objection was interposed by the defense
counsel when, at the preliminary hearing, the
prosecution manifested that the evidence to
be presented would be only for the 2 cases
against the petitioner and not on the case
where he claims a violation of his right to
speedy trial
- Perez v People
o Decision of Sandiganbayan was handed
down after the lapse of more than 12 years
o The court rejected the contention of the
petitioner finding no case serious prejudice
caused upon him by the alleged delay
o The court concluded that the petitioner has
clearly slept on his right
Factors for granting continuance
- Factors in determining whether to grant a
continuance:
a. Whether the failure to grant a continuance
would likely to make a continuation of such
proceeding impossible, or result in a
miscarriage of justice
b. Whether the case taken as a whole is so
novel, so unusual and so complex due to the
number of the accused or the nature of the
prosecution, that it is unreasonable to expect
adequate preparation within the periods of
time established by this Act
c. No continuance shall be granted because of
general congestion of the court’s calendar, or
lack of diligent preparation or failure to
obtain available witnesses on the part of the
public prosecutor
Privilege against self-incrimination
- Following provisions
a. No person shall be compelled to be a
witness against himself
b. In all criminal prosecution, the accused shall
be entitled to the following rights xxx (e) to
be exempt from being compelled to be a
witness against himself
- The Government must establish the guilt of the
accused by evidence independently and freely secure.
It cannot, by coercion, prove a charge against an
accused by his own mouth
- Forcing a man to be a witness against himself is at war
with “the fundamentals of a republican government;
that it may suit the purposes of despotic power but it
cannot abide the pure atmosphere of political liberty
and personal freedom
Meaning of compulsion
- Does not necessarily connote the use of violence
- May be product of unintentional statements
- Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair
his capacity for rational judgment would be sufficient,
so is moral coercion that tends to force testimony
from the unwilling lips of the accused
Right against self-incrimination of an accused
distinguished from that of an ordinary witness
- The accused “occupies a different tier of protection
from an ordinary witness
o Whereas an ordinary witness may be
compelled to take the witness stand and
claim the privileged as each question
requiring an incriminating answer is shot as
him, an accused may altogether refuse to
take the witness stand and refuse to answer
any and all questions
- The right against self-incrimination, when applied to a
witness can be claimed only when the specific
question, incriminatory i character, is actually put to
the witness.
o It cannot be claimed at any other time
51

Scope of the privilege against self-incrimination
- Protects a person only from testimonial compulsion or
a compelled testimony of a communicative nature
- Villamor v Summers
o “kernel of the privilege”
o Prohibition against testimonial compulsion
and rejected the arguments of a woman
accused of adultery that to compel her to
submit to a physical examination to
determine her pregnancy was a violation of
her right against self incrimination
- US v Ong Siu Hong
o The court admitted in evidence morphine
that was forced out of the mouth of the
accused because it involved no testimonial
compulsion
o To force a prohibited as requiring him to
exhibit himself before the court xxx or taking
a substance from the body of the accused to
be used proving his guilt
- US v Tan Teng
o The right against self-incrimination is
prohibition of the physical or moral
compulsion, to extort communications from
him, not an exclusion of his body as
evidence, when it may be material
- People v Otadora
o No infringement of the privilege when a
person is required to put on clothing or
shoes for size or for measuring or
photographing
- Herrera v Alba
o Obtaining DNA samples will not violate the
right against self-incrimination
- People v Fieldan
o Paraffin casting does not violate the right of
the accused against self-incrimination
Incriminatory nature of forced re-enactments
- People v Olvis
o Forced re-enactments, like uncounselled and
coerced confessions, come within the ban
against self incrimination
o All evidence based on such a re-enactment
are to be deemed in violation of the
Constitution
- “avoid” and prohibit positively the repetition and
recurrence of the certainly human procedure of
compelling a person, in a criminal or other case, to
furnish the missing evidence necessary for his
conviction
- “This should be distinguished, from mechanical acts
the accused is made to execute not meant unearth
undisclosed facts but to ascertain physical attributes
determinable by simple observation
o Includes requiring to submit to a test to
extract virus from his body, or compelling
him to expectorate morphine from his mouth
or making her submit to a pregnancy test or
foot printing test, or requiring him to take
part in a police line up
- Forced re-enactment is quite another thing
o The accused is not merely required to exhibit
some physical characteristics, but made to
admit criminal responsibility against his will
- A confession is presumed voluntary until the contrary
is proved and the confessant bears the burden of
proving the contrary
Incriminatory nature of writing exemplars or samples
- Beltran v Samson
o Ruled against the furnishing of written
exemplars
o Order of the respondent judge requiring the
petitioner to appear before the provincial
fiscal to take a dictation in his own
handwriting
o “writing is more than moving the body, or
the hands or the fingers, writing is not purely
mechanical act, because it requires the
application of intelligence and attention”
o “the witness is compelled to write and create
by means of the act of writing, evidence
which does not exist, and which may identify
him as the falsifier
- Not every act of affixing one’s signature is within the
protection of the privilege against self-incrimination
- Marcelo v Sandiganbayan
o Pilfered mail from the post office recovered
from the accused
o The purpose was not to compare the
signature of the petitioner for the
prosecution of falsification but merely to
authenticate the envelopes as the one seized
from him and not to produce a non-existent
evidence
o The proper objection that could have been
made was the absence of counsel during
custodial investigation
o When the signatures of the accused were
affixed, such signatures were actually
evidence of admission obtained from
petitioner and his co-accused under
circumstances constituting custodial
investigation
Proceedings where the privilege may be asserted
- Right is accorded to every person who gives evidence,
whether voluntarily or under compulsion of subpoena,
in any civil, criminal, or administrative proceeding
Claim of the privilege by a witness
- Right against self-incrimination is not self-executing
- It must be claimed
52
 - If not claimed, the protection does not come into
play\
Waiver of privilege
- Privilege against self incrimination may be waived
- If he testifies in his own behalf, he may be cross
examined on matters covered by the direct
examination
- To be effective, a waiver must be certain and
unequivocal, and intelligently, understandably, and
willingly made
o Such waiver following only where liberty of
choice has been fully accorded
Inapplicability of privilege when witness is given immunity
from prosecution
- A witness may be immunized from prosecution
o Immunity from prosecution occurs when the
government, under an authorizing law,
grants immunity to a witness in exchange for
a testimony favourable to the prosecution
- The government may grant immunity in one of the
two forms:
a. Transactional immunity—“blanket” or total
immunity, protects the witness from future
prosecution for crimes related to his or her
testimony
i. A witness can no longer be
prosecuted for any offense
whatsoever arising out of the act or
transaction to which testimony
relates
b. Use and derivative use—prevents the
prosecution only from using the witness’ own
testimony or any evidence derived from
testimony against the witness
 A witness is only assured that his or
her particular testimony and
evidence derived from it will not be
used against him or her in a
subsequent prosecution
Immunity Statutes; examples
- Seek a rational accommodation between the
imperatives of the privilege and the legitimate
demands of government to compel citizens to testify
- Immunity provisions are:
a. Art XVI, Sec 3—state may not be sued
without its consent
b. Sec VI, Sec 11—parliamentary immunities.
Senator or member of the congress, not
more than 6 years imprisonment, be privilege
from arrest while the Congress is in session
c. Sec 18(8), Art XIII---CHR is to “grant
immunity from prosecution to any person
whose testimony or whose possession of
documents or other evidence is necessary or
convenient to determine the truth in any
investigation conducted by it or under its
authority
d. Sec 17 of the Ombudsman Act—immunity
whose testimony is necessary to determine
the truth in any hearing, inquiry or
proceeding
e. Sec 5, EO 14—grants PCGG the authority to
grant immunity to informants or witnesses
f. PD 749—immunity from prosecution for any
person who voluntarily givers information
g. RA 6981—Witness protection, security,
benefit act
Rights of the accused to defend himself; right to be present
at the trial; right to be heard
- Right to defend himself wither in person or by counsel
o Right to be present at every stage of the
proceedings from arraignment to the
promulgation of the judgment
o May be allowed to defend himself in person
when it sufficiently appears to the court that
he can properly protect his rights without the
assistance of counsel
- The accused has the right to waive his presence at the
trial
o Shall be required for purposes of
identification
- Waiver may be inferred from his absence without
justifiable cause provided he had prior notice of the
trial
- If under custody then he escapes, his act shall be
deemed a waiver to be present in all subsequent trial
dates
o Until custody over him is regained
- If absent during the trial after his arraignment, trial
may proceed despite his absence
- When the accused filed a motion for leave to file a
demurrer to evidence, the demurer was eventually
denied, the TC should give the accused the
opportunity to present his evidence
Right to testify as a witness
- Has the right to testify as witness in his own behalf
but subject to cross-examination on matters covered
by the direct examination
- Questions asked during the cross examination are
limited to direct questions
- If the accused does not want to testify in his behalf
and chooses to remain silent, his silence shall not in
any manner prejudice him
Right to confront and cross-examine witnesses against him
- Embodied in Sec 14(2), Art III, 1987 Constitution
- Essential to test his or her accuracy, expose falsehoods
or half-truths, uncover the truth which rehearsed
direct examination testimonies may successfully
suppress, and demonstrate inconsistencies in
substantial matters which create reasonable doubt as
53
 the guilt of the accused and give substance to the
constitutional right of the accused to confront the
witnesses against him
- It is a personal right which may be waived, expressly
or impliedly, by conduct amounting to a renunciation
of a right of cross-examination
o Waiver may occur when the party failed to
cross-examine the witnesses against him
despite opportunity to do so
o He necessarily forfeits the right to cross-
examine and the testimony given on the
direct examination of the witness will be
received or allowed to remain in the record
- What is prohibited is the absence of the opportunity
to cross-examine
- Due process is satisfied when a person is notified of
the charge against him and given an opportunity to
explain or defend himself
- Right to confrontation does not apply in a PI
o While parties are allowed to be present, they
are “without the right to examine or cross-
examine
o However, they may submit to the
investigating officer questions, which may be
asked to the party or witness concerned
- Affidavits are generally rejected for being hearsay
- In the absence of a cross-examined, the direct
examination of the witness should be expunged from
the records
o If he is the lone witness, the TC would have
no basis to deny a demurer to evidence
o If one of the opportunity to cross-examine
without fault on his part, it is generally held
that he is entitled to have the direct
examination stricken from the record
Right to compulsory process
- To secure the attendance of witnesses and the
production of witnesses in his behalf
o Sec 14(2), Art III, 1987 Constitution
- May move the court for the issuance of a subpoena
ad testificandum or a subpoena duces tecum
o Unjustified failure of the witness to comply,
the court or judge issuing the subpoena,
upon proof of the service and proof of his
failure to attend, may issue a warrant of his
arrest
Right to appeal
- It is statutory
- It is an essential part of the judicial system and that
trial courts have been advised to proceed with caution
so as not to deprive the party of the right to appeal
Matters for review by appellate court
- An appeal throws the whole case wide open for review
and the reviewing tribunal can correct errors or even
reverse the TC’s decision on grounds other than those
that the parties raise as errors
- Appellate courts will not interfere with the judgment
of the TC on the credibility of witnesses
o Unless appears in the record some facts or
circumstances of weight and influence which
have been overlooked and would affect the
result
ARRAIGNMENT AND PLEA (RULE 116)
ARRAIGNMENT AND PLEA
RULE 116
Definition
Formal mode and manner of implementing the
constitutional right of an accused to be informed of the
nature and cause of the accusation against him.
Purpose
To apprise the accused why he is being prosecuted by
the state.
Importance of arraignment
Indispensable requirement of due process so that he
may be informed of the reason for his indictment, the
specific charges he is bound to face, and the
corresponding penalty that could be possible meted
against him.
Effect of the absence of arraignment
Proceedings before the trial court will be null and void
Duty of the court before arraignment
The court shall:
1. Inform the accused of his right to counsel
2. Ask him if he desires to have one
3. Must assign a counsel de oficio to defend him
(if the accused can’t afford a lawyer)
Unless the accused:
a. Is allowed to defend himself in person
b. Has employed a counsel of his choice
Gamas v. Oco
The only instance where the court can arraign the
accused without the benefit of counsel is if the accused
waives such right and the court, finding the accused
capable, allows him to represent himself.
The insistence of the accused to be arraigned without
representation is no reason for the judge to accede
readily to his wishes. It is his duty to protect the rights of
the accused, even against their wishes, when it is clear
54
that he is not in a position to validly exercise or waive
those rights.
Counsel de oficio
Members of the bar in good standing who, by reason of
their experience and ability, can competently defend the
accused.
Sec 7
Where members of the bar are not available, the court
may appoint any person, resident of the province and of
good repute for probity and ability, to defend the
accused.
Sec 8
The counsel de oficio shall be given a reasonable time to
consult with the accused as to his plea before
proceeding with arraignment.
Options of the accused before arraignment and plea
1. Bill of Particulars
a. To specify the alleged defects of the complaint
of information
b. Specify the details desired
i. (failure to file this motion before entering his
plea amounts to a waiver)
2. Suspension of arraignment
a. Accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently.
i. The court shall order his mental examination
and, if necessary, his confinement.
b. There exists a prejudicial question
c. There is a petition for review of the
prosecutor’s resolution pending in DOJ or OPP.
i. Suspension shall not exceed 60 days from
the filing of the petition
d. Motion to quash – on the grounds provided for
in Rule 117
e. Challenge the validity of the arrest or legality of
the warrant issued or assail the regularity or
question the absence of a PI.
i. Otherwise, deemed waived
Ramiscal v. Sandiganbayan
Filing of a motion for reconsideration of the finding of
probable cause cannot bar the filing of the information,
and neither can it bar the arraignment of the accused.
Arraignment under an amended information
1. Substantial amendment – MANDATORY
 Conviction on the second information without
rearraignment constitutes reversible error.
2. Formal amendment – not needed
 Does not change the nature of the crime. Does
not affect the essence of the offense nor
deprive the accused of the opportunity to
meet the new averment
3. Substitution – MANDATORY
HOW ARRAIGNMENT AND PLEA ARE MADE
Where arraignment is to be made
Before the court where the complaint or information was
filed or assigned for trial.
How arraignment is made
1. in open court by the judge or clerk
2. by furnishing the accused with a copy of the
complaint or information
3. in the language or dialect known to him
4. asking him whether he pleads guilty or not
When arraignment is to be made
Within 30 days from the date the court acquires
jurisdiction over the person of the accused.
 Unless a shorter period is provided by a
special law or SC circular.
Under existing law:
Within 30 days from the filing of the complaint or
information, or from the date the accused has appeared
before the justice, judge or court in which the charge is
pending.
Excluded in counting the period:
1. Pendency of the motion to quash
2. Pendency of a bill of particulars
3. Other causes justifying suspension
When accused is under preventive detention:
1. Case shall be raffled and its records transmitted to
the judge within 3 days from the filing of the
information
2. Arraignment shall be within 10 days from the date
of the raffle
55
3. Pre-trial conference shall be within 10 days after
arraignment
If accused pleads not guilty and interposes a defense:
(Sec 7, Speedy Trial Act 1998)
 NEGATIVE DEFENSE – requires the prosecution
to prove the guilt of the accused beyond
reasonable doubt
 AFFIRMATIVE DEFENSE – defense may modify
the order of trial and require the accused to
prove such defense by clear and convincing
evidence
Arraignment after submission of the case for decision
People v. Pangilinan
Accused assailed his conviction because he was only
arraigned after the case was submitted for decision.
The court ruled that his belated arraignment did not
prejudice him. The procedural defect was cured when his
counsel participated in the trial without raising any
objection that his client had yet to be arraigned. His
counsel’s active participation in the hearings is a clear
indication that he was fully aware of the charges against
him.
Record of arraignment
Arraignment and plea shall be made of record, but
failure to do so shall not affect the validity of the
proceedings. (Sec 1b)
Presence of the accused
Accused must be present at the arraignment and must
personally enter his plea (Sec 1b)
Presence of the offended party
When required: (Sec 1f)
1. Plea bargaining
2. Determination of civil liability
3. Other matters requiring his presence
If he fails to appear despite due notice, the court may
allow the accused to enter a plea of guilty to a lesser
offense charged with the conformity of the trial
prosecutor alone.
When a plea of ‘not guilty’ shall be entered
1. If he refuses to plead
2. Makes a conditional plea
3. Pleads guilty but presents exculpatory evidence
4. Admits the facts in the information but alleges that
he performed the acts because he feared for his
life (People v. Baetiong)
Entering a plea of not guilty
Accused submits himself to the jurisdiction of the trial
court and cures any defect in his arrest. But is not a
waiver of the right to question the admissibility of the
evidence gathered through the illegal arrest.
People v. Comendador
Accused pleaded guilty but asked the court to impose a
lesser penalty other than death. The Court held that this
does not make his plea of guilty conditional. It remains
to be an admission of the facts alleged. He had an
opportunity to adduce evidence in his favor but did not
do so. He merely submitted the case for decision.
People v. Magat
A guilty plea on the condition that he is given a lesser
penalty is not a plea to a lesser offense. It is a plea that
made conditions on the penalty imposed. Equivalent to a
plea of not guilty. Full-blown trial is required.
The essence of a plea of guilty is that the accused admits
absolutely and unconditionally his guilt and
responsibility for the offense.
People v. Albert; People v. Bello
If the accused admits some of all the allegations in the
information but interposes excuses or additional facts
which, if duly established, would exempt or relieve him in
whole or in part of criminal liability, a formal plea of not
guilty should be entered.
People v. Strong
Accused pleaded guilty but always denied the acts every
time he was asked.
When a plea of guilty is not definite or ambiguous, or
not absolute, the same amounts to a plea of not guilty.
People v. Balisacan
Accused pleaded guilty but testified that he acted in
complete self-defense. The testimony had the effect of
vacating his plea of guilty and the trial court is required
to have him plea anew on the charge, or at least direct
that a new plea of not guilty be entered for him.
Otherwise, there can be no standing plea; double
jeopardy will not attach.
56
Plea of guilty as a judicial confession; effect on
aggravating circumstance
It is deemed to be an admission of all the material facts
alleged in the information, including the aggravating
circumstance alleged. Except when the aggravating
circumstance are disproved by evidence. Does not
dispense with the presentation of evidence.
Plea of guilty to a lesser offense
Defendant pleading guilty to a lesser offense or to only
one or some of the counts of a multi-count indictment in
return for a lighter sentence than that for the graver
charge.
Plea bargaining
A process whereby the accused and the prosecution
work a mutually satisfactory disposition of the case
subject to court approval.
Requisites for a plea of guilty to a lesser offense
1. The lesser offense is necessarily included in the
offense charged
2. Plea must be with the consent of both the
offended party and the prosecutor. Consent of
the offended party will not be required if he fails
to appear during the arraignment despite due
notice
Plea of guilty to a lesser offense, NOT a matter of
right - A matter addressed entirely to the sound
discretion of the court
An offense may be said to necessarily include another
when some of the essential elements or ingredients of
the former constitute the latter. And vice versa.
When plea of guilty to a lesser offense may be made
1. Before trial
a. At arraignment
b. After arraignment and after his prior plea of not
guilty is withdrawn
2. During trial
a. Even after prosecution has finished presenting
its evidence and rested its case. It is immaterial
that plea bargaining was not made during the
pre-trial stage or that t was made only after the
prosecution already presented several witnesses
(Daan v. Sandiganbayan)
Sec 2
When there is a plea of guilty to a lesser offense and the
same was allowed by the court, there is no need to
amend the information or complaint.
Plea of guilty to a capital offense
Capital offense – one which may be punished by death
(Sec 6, Rule 114)
It is not proper for the court to immediately render
judgment based on the guilty plea.
The court is mandated to perform the ff:
1. Conduct a searching inquiry
a. To ascertain the voluntariness of the plea
b. Ascertain WON the accused has full
comprehension of the consequence of his plea
2. To require the prosecution to prove the ff:
a. Guilt of the accused
b. Precise degree of his culpability
3. To ask the accused if he wishes to present
evidence in his behalf and be allowed to do so, if
he desires (Sec 3)
Rationale:
 The courts must proceed with more care where
the possible punishment is in its severest form,
namely death, for the reason that the execution
of such sentence is irreversible.
 To avoid improvident pleas of guilt on the part of
an accused. He might be admitting his guilt and
forfeiting his life and liberty without having fully
understood the meaning, significance and
consequences of his plea.
Searching inquiry
There is no definite and concrete rule as to how the trial
judge must conduct a searching inquiry.
Guidelines:
1. Ascertain from the accused:
a. How he was brought into custody of the law
b. Whether he had the assistance of competent
counsel during custodial and preliminary
investigation
c. Under what conditions he was detained and
interrogated during the investigations
57
2. Ask the defense counsel whether he had conferred
with, and completely explained to the accused the
meaning and consequences of a plea of guilty
3. Personality profile of the accused
a. Age
b. Socio-economic status
c. Educational background
4. Inform the accused the exact length of
imprisonment or nature of the penalty under the
law and the certainty that he will serve such
sentence
i. It is the duty of the judge to ensure that the
accused does not labor under the mistaken
impression that they will be given a lighter
penalty if the plead guilty.
ii. A plea of guilty carries with it not only the
admission of authorship of the crime proper
but also of the aggravating circumstances
attending it, that increase punishment.
5. Inquire if the accused knows the crime and fully
explain to him the elements of the crime which is
the basis of his indictment.
i. Failure of the court to do so would constitute
a violation of his right to be informed of the
precise nature of the accusation against him
and a denial of his right to due process.
6. All questions posed to the accused should be in a
language known and understood by the latter
7. The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty. The
accused must be required to narrate the tragedy or
reenact the crime or furnish the missing details.
Plea of guilty to a non-capital offense
The court may receive evidence from the parties to
determine the penalty to be imposed. (Sec 4)
The duty imposed upon the court is not as stringent as
the duty imposed upon it when the accused pleads
guilty to a capital offense.
People v. Madraga
When an accused did not pea guilty to a capital offense,
he cannot invoke Sec 3 of Rule 116 requiring the court to
conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea.
People v. Mendoza
There is no rule which provides that simply because the
accused pleaded guilty to the charge that his conviction
automatically follows. Additional evidence independent
of the plea may be considered to convince the judge
that it was intelligently made. This rule is at most
directory.
Improvident plea of guilty
At any time before the judgment of conviction becomes
final, the court may permit an improvident plea of guilty
to be withdrawn and substituted by a plea of not guilty
People v. Gumimba
Failing to conduct a searching inquiry into the
voluntariness and full comprehension of the accused’s
plea of guilty, it is deemed made improvidently and
rendered inefficacious.
People v. Solamillo
Convictions based on an improvident plea of guilty are
set aside only if such plea is the sole basis of the
judgment
People v. Talusan
Where the trial court receives evidence to determine
precisely whether the accused erred in admitting his
guilt, the manner in which the plea is made loses legal
significance if the conviction is, independently of the
plea, based on evidence proving the commission of the
offense.
People v. Ceredon
A conviction based on a plea of guilty to a capital
offense had been set only when such plea was the only
basis of the judgment. When the court relied on
sufficient and credible evidence to convict the accused,
the same must be sustained.
Production or inspection of material evidence
Sec 10 authorizes the court to issue an order to the
prosecution to produce and permit the inspection and
copying or photographing of any written statement
given by the complainant and other witnesses in any
investigation of the offense conducted by the
prosecution or other investigating officers.
 Also includes any designated documents,
papers, books, accounts, letters, photographs,
objects, or tangible things not otherwise
privileged.
58
Production or inspection of material evidence in
possession of the prosecution shall be allowed upon
motion of the accused with notice to the parties.
Purpose:
To prevent surprise, suppression, or alteration of
evidence.
MOTION TO QUASH (RULE 117)
Nature of a motion quash; omnibus motion
a. Accused assails the validity of a criminal
complaint or information filed against him
for insufficiency on its face in point of law, or
for defects which are apparent in the face of
the information
b. Hypothetical admission of the facts alleged
in the information
c. Evidence aliunde or matters extrinsic of the
information are not considered
- It is an omnibus motion
o The rule impliedly required that all the
objections available at the time of the
motion is filed should be invoked
o Failure to assert any ground of a MTQ before
a plea to the complaint or information shall
be deemed a waiver of any objections
o Grounds:
a. Facts charged do not constitute an offense
b. The court trying the case has no jurisdiction over the
offense charged
c. The criminal action or liability has been extinguished
d. Double jeopardy
Time for filing the motion to quash
- At any time the accused enters his plea
- Generally not allowed in a summary procedure
o Exceptions:
a. Shall be in writing
b. Signed by the accused or his counsel
c. Shall distinctly specify the factual and legal grounds
Motions to quash is not demurrer to evidence; distinctions
- Demurrer to evidence in a criminal case is filed after
the prosecution rests its case
- Rule 117 does not require a prior leave for the filing of
a motion to quash
o A demurrer to evidence may be filed by the
accused wither with leave or without leave of
court
- The grounds for MTQ are not grounds for demurrer to
evidence
o Sec 23 of Rule 119
o “insufficiency of evidence”
- Ground for MTQ is based on the matters found on the
face of the complaint or information
o Demurrer of evidence would necessarily be
upon matters outside of the complaint or
information
- When MTQ is granted, a dismissal of the case will not
necessarily follow
o An order sustaining the motion is not a bar
to another prosecution
o Order granting demurrer to evidence is a
resolution of the case on the merits and it
amounts to acquittal
Courts to consider only those grounds stated in the motion
- Sec 2
o MTQ filed by the accused, the court shall
consider no ground other than those stated
in the motion
 The only ground that even if not
stated in the MTQ, is lack of
jurisdiction over the offense
charged
Grounds Motion to Quash
a. Facts charged do not constitute an offense
b. No jurisdiction over the offense charged
c. No jurisdiction over the person of the accused
d. Officer who filed the information had no authority to
do so
e. Does no conform to the prescribed form
f. More than one offense is charged except when a
single punishment for various offense is prescribed by
law
g. Criminal action or liability has been extinguished
h. Contains averments which would constitute a legal
excuse or justification
i. Accused has been previously convicted or acquitted of
the offense charged, or case against him was
dismissed of otherwise terminated without his express
consent
Execution of an affidavit of desistance is not a ground for a
MTQ
- Affidavit of desistance is not a ground for a MTQ
- An affidavit of desistance or pardon is not a ground
for the dismissal of an action, once it has been
instituted in court
Absence of probable cause is not a ground to quash an
information
- Absence of probable cause is a ground for the
dismissal of the case
- To quash
o To annul, vacate or overthrow
o It does not mean dismissal
Matters of defense are not grounds for a motion to quash
- The court should proceed with the case and
determine the validity and truth of the defense in a
full-blown trial
59
 o Facts that constitute the defense of the
petitioners against the charge under the
information must be proved by them during
trial
Absence of a preliminary investigation is not a ground to
quash an information
- Absence of preliminary investigation is a proper
ground for reinvestigation
- Graft case where the accused was deprived of PI
o Sandiganbayan is to hold in abeyance any
further proceedings therein and to remand
the case of the Office of the Ombudsman for
the completion of the preliminary
investigation, the outcome of which shall be
then indorsed to the Sandiganbayan for its
appropriate action
Test in appreciating a motion to quash
- Sufficiency of the averments in the information
o Whether the facts alleged, if hypothetically
admitted, would establish the essential
elements of the offense as defined by law
without considering matters aliunde
- Validity of the criminal proceedings on the ground
that the acts for which the accused is charged do not
constitute a violation of the provisions of RA 3019
o Should be treated only in the same manner
as a challenge to the criminal proceeding by
way of a MTQ on the ground provided in par.
(a), sec 3 of Rule 117 of the ROC
o That the facts charged do not constitute an
offense
o A resolution of the challenge to the validity
of the criminal proceeding, on the ground,
should be limited to an inquiry whether the
facts alleged in the information, constitute
the elements of an offense punishable under
RA 3019 of the provisions on bribery of the
RPC
- Sec 2 of Rule 117
o A MTQ shall distinctly specify only its legal
but also factual grounds
o “clear from this section that MTQ may be
based on factual and legal grounds, and
since extinction of criminal liability and
double jeopardy are retained as among the
grounds for a MTQ in Sec 3 of the new Rule
117
o It necessarily follows that facts outside the
information itself may be introduced to
prove such grounds
Remedy from a denial of MTQ
- Petition for certiorari under Rule 65 is not the proper
remedy against an order denying a MTQ
- Remedy is for the movant to go to trial without
prejudice to reiterating the special defences invoked
in the MTQ
- Exceptions
o If the court acts without or in excess of
jurisdiction or with grave abuse of discretion
o Then certiorari or prohibition lies
When court shall order the amendment of the information
or complaint
- If the MTQ us based on the alleged defect of the
complaint or information, and the defect can be
cured, the court shall order that an amendment be
made
- If based on the ground that the facts charged do not
constitute an offense, the court shall give the
prosecution an opportunity to correct the defect by
amendment
- Motion to quash shall be granted by the court, if the
prosecution
a. Fails to make the amendment
b. Despite amendment, the complaint
or information still suffers from the
same defect
- The prosecution should be given a chance to correct
the defect and the court can order the dismissal only
upon the prosecution’s failure to do so
Order sustaining a MTQ is not a bar to another
prosecution; exceptions
- When MTQ is sustained, the court may order that
another complaint or information be filed
- Another complaint or information cannot be filed:
a. Extinction of the criminal liability
b. Double jeopardy
- If order to file another complaint or information is
made, the accused, who may be in custody, shall not
be discharged or released
o Except if admitted to bail
- If no order to file is made
o The accused, if in custody, shall be
discharged
- Not be discharged if he is in custody for another
charge
Double jeopardy
- Sec 21, Art III, 1987 Constitution
o “No person shall be twice put in jeopardy of
punishment for the same offense. If an act is
punished by a law and an ordinance,
conviction or acquittal under either shall
constitute a bar to another prosecution for
the same act.”
- Sec 7, Rule 117, ROC
- Jeopardy
o “danger of conviction and punishment which
defendant in a criminal action incurs when a
valid indictment has been found”
o Constitution does not prohibit jeopardy,
what is prohibited is putting the accused in
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 double jeopardy
- State shall not be permitted to make repeated
attempts to convict an individual for an alleged
offense, subjecting him to embarrassment, expense,
and ordeal and compelling him to live in a continuing
state of anxiety and insecurity
o Enhancing that possibility that, even though
innocent, he may be found guilty
o Would arm the government with a potent
instrument of oppression
- In criminal law
o Double jeopardy presupposes two separate
criminal prosecutions
o “res judicata in prison grey”
 The right against double jeopardy
prohibits the prosecution for a
crime of which he has been
previously convicted or acquitted
o 1st jeopardy has already attached prior to the
2nd jeopardy
 1st jeopardy has already been
terminated (conviction or acquittal,
dismissed or terminated)
- Example
o (1) Accused has been acquitted of frustrated
homicide
o He can no longer be accused of the same
offense or of an offense necessarily included
in frustrated homicide like attempted
homicide
o (2) Person convicted of attempted homicide
can no longer be tried under an information
for frustrated homicide against the same
victim
Administrative cases; double jeopardy not applicable
- Icasiano v Sandiganbayan
o Rule on double jeopardy does not apply to
administrative cases
- Double jeopardy attached only
a. Upon a valid indictment
b. Before a competent court
c. After arraignment
d. When a valid plea has been entered
e. When the defendant was acquitted or convicted, or
the case was dismissed or terminated without the
express consent of the accused
- No double jeopardy attaches as long as there is
variance between the elements of the 2 offenses
charged
- Dismissal of the criminal case does not result in the
dismissal of the administrative case
o There exists a difference between those 2
remedies
Preliminary investigation; double jeopardy not applicable
- PI is merely inquisitorial
o it is not a trial of the case on the merits
o its purpose is to determined whether the
crime has been committed and whether
there is probable cause to believe that the
accused is guilty
o it does not place the person against whom it
is taken in jeopardy
Res judicata and double jeopardy; res judicata in prison
grey
- doctrine in civil law
- no bearing in criminal proceedings
- “res judicata in prison grey”
Double jeopardy; requisites
a. Valid indictment
b. Before a court of competent jurisdiction
c. Arraignment of the accused
d. Valid plea entered by him
e. The acquittal or conviction of the accused, or the
dismissal or termination of the case against him
without his express consent
Valid complaint or information
- Sufficiency of the complaint or information or the
formal charge is dependent on whether the same
could sustain a conviction
- Q: Information alleges the facts but do not constitute
an offense. The court agrees and orders the
amendment of the information to correct the defect.
Will the filing of the new corrected information trigger
the application of double jeopardy?
o No, there was never a first jeopardy under
the 1st information. One could not possibly
be in danger of being convicted under a
defective information
- A complain or information may not be considered
valid if it does not contain the basic requisites for the
sufficiency of a complaint
o Sec 6, Rule 110
o Name of the accused
o Designation of the offense
o Acts or omissions
o Name of the offended party
o Approximate date of the commission of the
offense
o Place where the offense was committed
- The accused will not be placed in jeopardy of
conviction where the facts alleged in the complaint or
information do not constitute an offense
o Defect is a ground for a motion to quash
- Jeopardy does not attach where a defendant pleads
guilty to a defective indictment that is voluntarily
dismissed by the prosecution
o Officer who filed the information has no
authority to do so, the information is indeed
defective and could not sustain a conviction
61
 - Cudia v CA
o Information was filed by the City Prosecutor
of Angeles City for a crime committed in
Mabalacat, Pampanga.
o The court ruled that City prosecutor of
Angeles City has no authority to file an
information in a place beyond the
jurisdiction of his office
o It is the Provincial Prosecutor of Pampanga
not the City Prosecutor who should prepare
the information for an offense committed
within Pampanga but outside of Angeles City
o An information, when required to be filed by
a public prosecuting officer, cannot be filed
by another
Courts must have competent jurisdiction
- For double jeopardy to attach, the court, which
rendered a judgment of conviction or acquittal or
which terminated or dismissed the case, must be one
vested with “competent jurisdiction”
- Robbery
o Occurred in Makati City
o Filed in Quezon City
o Quezon City court dismissed the case for lack
of jurisdiction
o Subsequent information filed before the
proper Makati court will not give rise to a
defense anchored on double jeopardy
o 1st jeopardy will not attach if the action was
filed in a court was not a proper venue
- No double jeopardy where the accused entered a plea
in a court that had no jurisdiction
o Murder filed in MTC
o Dismissed for lack of jurisdiction
o Subsequent indictment for the same offense
in RTC will not constitute double jeopardy
- If a case pertains to the jurisdiction of the
Sandiganbayan, was filed in the RTC, jurisdiction never
attached to the latter court
Accused should have validly pleaded to the charge (should
have been arraigned)
- Application of double jeopardy requires the accused
“had pleaded to the charge”
- Theft
o Before arraignment, the prosecutor withdrew
an information
o Filed another information for theft or
robbery against the same accused cannot be
invoked if the accused was never arraigned
under the 1st information
- No double jeopardy in the reinstatement of a criminal
case dismissed before arraignment and upon his
express motion
- Plea must be valid
o People v Magat
o Accused pleaded guilty to the rape of his
daughter conditioned on the imposition of a
lesser penalty
o The complainant’s mother and the
prosecutor agreed the plea bargain
o He was sentenced to 10 years for each count
of rape
o The cases were revived at the instance of the
complainant on that ground that the penalty
imposed was too light
o The accused was re-arraigned and he
entered anew plea of guilty
o The court rendered a judgment and
conviction and impose the death penalty
o The accused-appellant’s plea of guilt was
conditional plea
o The order of the trial court was void ab initio
on the ground that accused-appellant’s plea
was not the plea bargaining contemplated
and allowed by law and the ROC
o The trial court should have vacated a plea
and entered a plea of not guilty which would
require a full-blown trial before judgment
may be rendered
o The judgment rendered by the TC which was
based on a void plea bargaining is also void
ab initio
- People v Balicasan
o Error in the procedure followed by the TC
which justified on appeal by the prosecution
without violating the rule against double
jeopardy
o Accused was charged of homicide, upon
arraignment, entered a plea of guilty
o Ended up justifying the killing by showing
that he acted in self-defense
o Court rendered acquittal
o People appealed
o SC—Appeal was sustained
o Plea of guilty as “an unconditional admission
of guilt with respect to the offense charged
o The accused was only allowed to testify in
order to establish mitigating circumstance, it
should not be taken as a trial on the merit’s
to determine the guilt or innocence of the
accused
o Assertion of self-defense had the effect of
vacating on his plea of guilty
o TC could have required him to plead anew or
direct that a new plea of not guilty be
entered
o Since there was no standing plea at the time
the court a quo rendered its judgment of
acquittal, there can be no double jeopardy
with respect to the appeal of prosecution
62
Prior conviction or acquittal of accused, or dismissal of case
without his express consent
- To invoke double jeopardy, it must be shown that he
had either been convicted or acquitted, or dismissed
or terminated without his express consent
- Ways to terminated
o Conviction
o Acquittal
o Dismissal or termination without the express
consent of the accused
- Mere filing of 2 informations or complaints charging
the same offense does not yet afford the accused to
complain that he is being in jeopardy twice foe the
same offense
o No conviction or acquittal in the first case
- Finality of acquittal doctrine
o Verdict or acquittal is immediately final and a
re examination of the merits of such
acquittal, even in the appellate court, will put
the accused in jeopardy for the same offense
o An acquitted defendant entitiled to the right
or repose as a direct consequence of the
finality of his acquittal
o If proceedings were rigged, and a sham or
mock trial held in a pre-determined
judgment of acquittal the proceedings are
unlawful and void ab initio
- Dismissal of the 1st case contemplated in Sec 7 of Rule
117 presupposed a definite or unconditional dismissal
which terminates the case
o The dismissal to be a bar under jeopardy
clause, it must have the effect of acquittal
o Order of the judge was for the trial
prosecutor to correct and amend the
information from homicide to murder but
not to dismiss the same
o There was no change in the recital of the
facts constituting the offense
o There is can be no double jeopardy
Dismissal or termination of case without the express
consent of the accused
- For the protection against double jeopardy to inure in
favour of the accused, the case against the accused
must have been previously “dismissed or otherwise
terminated without his express consent”
o A dismissal or termination of the case with
the express consent of the accused will not
prevent another prosecution for the same
offense
o If an accused moves for the dismissal
alleging that the crime was not committed
within the territorial jurisdiction of the court,
the dismissal is with the express consent of
the accused and cannot be the basis for a
claim of double jeopardy
o Express consent—operates as a waiver of his
constitutional right against double jeopardy
for the reason that he effectively prevents
the TC from proceeding to trail on the merits
and judgment of conviction against him
- Express consent—positive, direct, unequivocal, and
requiring no interference or implication to supply its
meaning
- Andres v Cacdac
o Accused—Provisional dismissal should be
considered a bar to the subsequent filing of
another information
o SC—not tenable
 The records disclosed that the
accused and their counsel not only
consented but also asked for the
provisional dismissal of the case
 Their act operates as a waiver for
their defense of double jeopardy
- People v Espinosa
o Successful invocation of the right against
double jeopardy because of dismissal
without the express consent of the accused
o Before his arraignment, he sought the
permission of the court to travel abroad
pending the results of the reinvestigation
o The court required that the accused be
conditionally arraigned
o The accused was arraigned and pleaded not
guilty
o The court granted his motion to travel
o OSP—moved to withdraw ex parte the 2
cases against the accused
 Court granted the motion to
withdraw
o When cases were sought to be reinstated
through the filing of information for
malversation, the accused filed a motion to
quash invoking double jeopardy
 He had already been arraigned
 Withdrawal of those cases had been
granted without his express consent
o SC—waiver of the constitutional right against
double jeopardy must be clear, categorical,
knowing and intelligent
o The alleged conditions attached to
arraignment must be unmistakable, express,
informed, and enlightened
o Otherwise, the plea should be deemed to be
simple an unconditional
o The Court found that the plea of the accused
during arraignment was simple and
unconditional
o The practice of allowing conditional plea is
not part of the Rules
- Braza v Sandiganbayan
o The accused was charged of Anti-Graft and
Corrupt Practice Act
63
 o Also arraigned as a precondition to his
authorization to travel abroad
o Order of the Sandiganbayan
 “he cannot invoke his right against
double jeopardy and he shall
submit himself to arraignment anew
under such amended information”
 He pleaded Not Guilty to the
charged against him
o Later, the charge was modified
o The accused filed a motion to quash the 2 nd
information
o SC—dismissed the argument of the accused
o Order of the Sandiganbayan, clearly and
unequivocally stated the conditions for the
arraignment
o It included the waiver of the right to invoke
double jeopardy if the information would be
amended
o When he entered “not guilty”, he voluntarily
submitted himself to the conditional
arraignment
- Provisional dismissal
o Sec 8, Rule 117
o Not equivalent of an acquittal because the
dismissal is with the express consent of the
accused
Dismissals equivalent to acquittal eve with the consent of
the accused; speedy trial; demurrer to evidence; discharge
as a state witness
- Not every dismissal with the consent of the accused
would preclude the invocation of the protection
against double jeopardy
- Double jeopardy will apply even if the dismissal is
made with the express consent of the accused, or
upon his own motion, dismissal is predicated on the
ground of:
1. Insufficiency of the evidence
2. Denial of the right to speedy trial
- when a demurrer to evidence in criminal case is
granted, the dismissal of the case tantamount to an
acquittal of the accused
o dismissal of a criminal case upon motion of
the accused because the prosecution was not
prepared for trial since the complainant and
his witnesses did not appear at the trial is a
dismissal equivalent to an acquittal
- The invocation of the right to speedy trial should be
preceded by insisting on a trial
o He should ask not for the dismissal, but ask
for the trial of the case
o Dismissal amounts to a acquittal
- Esmena v Pogoy
o The counsel for the accused told the court
that his clients, the accused, are insisting that
the case be heard on that day and that they
are involving the right to speedy trial of the
case
o Fiscal cannot present evidence
o Judge issued a order dismissing the case
“provisionally” as to the accused present
 Not on the accused who did not
appear in the hearing
o 27 days later, fiscal filed a motion for the
revival of the case
o He argued that provisional dismissal lacks
“the impress of finality”
o The judge granted the motion to revive
o Accused filed a motion to dismiss in the
ground of double jeopardy
o Solicitor General
 Agreed to the accused
 Effect of acquittal
o Court
 Accused insiting on a trial
 Relied on the constitutional right to
speedy trial
 Fiscal was not ready because the
witness was not in court
 Respondent judge, provisionally
dismissed the case, therefore
consented it
 Dismissal would place them in
jeopardy
 The word “provisional” would not
change the legal effect of the
dismissal
- Discharge of the accused as a state witness shall
amount to acquittal and shall bar future prosecution
for the same offense
o Unless the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis for
his discharge
o Requires consent
Effect of double jeopardy on the criminal aspect of the
case; finality of acquittal doctrine
- An acquittal rendered by a court of competent
jurisdiction after trial on the merits is immediately final
and cannot be appealed because of double jeopardy
- A judgment of acquittal is final and no longer
reviewable
o Immediately executor and the State may not
seek its review without placing the accused
in double jeopardy
o Prosecution via an appeal from a judgment
of acquittal is also barred
- Finality-of-acquittal doctrine
o Accused is entitled to repose as a direct
consequence of the finality of his acquittal
o Purposes:
64
 a. Prevents state from using its criminal processes as a
instrument of harassment to wear out the accused by
a multitude of cases
b. Serves to preclude the State, following as acquittal,
from successively retrying the accused in the hope of
securing a conviction
c. Prevents the state, following a conviction, from
retrying the accused again
Appeal by the accused
- When the accused appeal from the sentence of the
TC, he waives his right to the constitutional safeguard
against double jeopardy
o Throws the whole case open to review by the
appellate court
- When an accused himself files or consents to the filing
of a motion for reconsideration or modification of the
judgment against him, double jeopardy cannot be
invoked by him because by filing the motion, he
waived his right not to be placed in double jeopardy
Review of an erroneous acquittal; grave abuse of discretion
amounting to lack of jurisdiction
- May an erroneous acquittal be assailed without
offending the principle against double jeopardy?
o “an acquittal by a court of competent
jurisdiction after trial on the merits is
immediately final and cannot be appealed on
the ground of double jeopardy
- The rule is inapplicable of the court that issued
criminal judgment
- The acquittal may be reviewed where
a. There has been deprivation of due process and
when there is a finding of mistrial
b. There has been a grave abuse of discretion under
exceptional circumstances
- The state may assail the acquittal by a special civil
action of certiorari under Rule 65, when the court that
absolved the accused gravely abused its discretion,
resulting in loss of jurisdiction or when a mistrial has
occurred
- A petition for certiorari under Rule 65, is the remedy
to question a verdict of acquittal whether at the TC or
at the appellate level
o People v Asis
o Accused charged of 2 counts of attempted
murder and one count of frustrated murder
in RTC
o RTC—accused liable only for serious physical
injuries and less serious physical injuries
o 4 generic mitigating circumstance in favour
of the accused
o The accused was acquitted
o OSG—filed a petition for certiorari under
Rule 65
o CA dismissed the petition
o SC—Found that the appellate court erred in
dismissing the petition outright
o A petition for certiorari under Rule 65, not
appeal, is the remedy to question a verdict of
acquittal whether at the trial court or at the
appellate court
o Galman v Sandiganbayan
o A judgment rendered by the trial court with
grave abuse of discretion was issued without
jurisdiction and for this, the judgment is void
o There can be no double jeopardy
- Accused was charge of murder, the prosecution filed
a petition for certiorari under Rule 65
o When the earlier decision was promulgated,
only one of the several accused was present
and the others were not
o Without surrendering and explaining the
reasons for their absence, they joined the
present accused in a Joint Motion for
Reconsideration, act done disregard of Sec 6,
Rule 120
o That in case of judgment of conviction and
the accused failed to appear without a
justifiable cause, he loses the remedies
available under the Rules and the court shall
order his arrest
o SC—Sustain the prosecution
o The accused cannot be considered at risk of
double jeopardy
- TC failed to conduct its own determination of prima
facie case, to independently evaluate and assess the
merits of the case against the accused and simply
adopted the resolution of the SOJ
o There is violation of the complainant’s right
to due process and constitutes grave abuse
of discretion amounting to excess of
jurisdiction
o Double jeopardy has not set in
Effect of double jeopardy on the civil aspect of the case
- Acquittal of the accused does not affect the right of
the offended party to appeal the civil aspect of the
case
o “either the offended party or the accused
may appeal the civil aspect of the judgment
despite the acquittal of the accused”
o The public prosecutor cannot appeal the civil
aspect of the decision
- The offended party and the accused may appeal the
civil aspect of a judgment because the concept of
double jeopardy has reference only to criminal case
and has no effect on civil liability of the accused
o Under Sec 4, Rule 111,
o If the accused dies before his arraignment,
while the criminal case shall be dismissed
because of its extinction, such dismissal is
without prejudice and shall not be a bar to
65
 any civil action while the offended party may
file against the estate of the deceased
Double jeopardy in quasi offenses
- Ivler v Modesto-San Pedro
o Doctrine of double jeopardy in quasi
offenses governed by Art 365 of the RPC
o Vehicular Mishap by Ivler was charged before
the MeTC with 2 separate offenses in 2
informations:
a. Reckless imprudence resulting in slight
physical injuries
b. Reckless imprudence resulting in homicide
and damage to property
o The petitioner pleaded guilty to the charge in
(a) and was meted out the penalty of public
censure
o He then moved to quash the other
information, (b), for placing him in double
jeopardy for the same offense of reckless
imprudence
o The MeTC denied the motion to quash the
information
 Ground: there is no identity of
offenses in the 2 cases
o RTC—issued a ruling adverse to the
petitioner without directly deciding on the
petition for certiorari
o SC—Petitioner lamented the RTC’s failure to
decide on the merits of his petition for
certiorari
o On the issue of double jeopardy:
o SC—Agreed with the petitioner
o 2 charged against petitioner arose from the
same facts and were prosecuted under the
same provision under the RPC
o Art 365 of the RPC—A single quasi offense
by itself and not merely a means to commit
other crimes
o Conviction or acquittal of such quasi-offense
bars subsequent prosecution for the same
quasi-offense regardless of its various
resulting acts
- People v Diaz
o Damage to property through reckless
imprudence
o Accused for reckless driving
o SC—the essence of the quasi-offense of
criminal negligence under Art 365 of the RPC
lies in the execution of an imprudent or
negligent act
o The law penalizes the negligence or careless
act and not the result
o The gravity of consequence is only to
determine the penalty and is does not qualify
the substance of the offense
- Ivler—not novel
o Diaz—ruling was dismissal by the MTC of the
information alleging acts constituting
reckless driving barred a second information
of damage to property through reckless
imprudence based on the same negligent act
of the accused
- People v Silva
o Result of the same vehicular accident one
man died, 2 person were seriously injured
while another 3 suffered only slight physical
injuries
o Court—acquittal on a charge of slight
physical injuries through reckless
imprudence was a bar to another
prosecution for homicide through reckless
imprudence
- People v Buan
o Accused was indicted for slight physical
injuries through reckless imprudence
o The charge resulted in his acquittal after a
trial
o Before his acquittal, he was charged with
serious physical injuries in the CFI and
damage to property through reckless
imprudence
o The accused moved to quash the information
in the CFI on the ground that he was already
been previously acquitted of the same
offense by the Justice of the Peace Court
o The CFI did not quash the information to
which the Court disagreed
- Sevilla v People
o The Sandiganbayan designated the offense
of which the accused was convicted as
“falsification of public document through
reckless imprudence”
o Court—“implies that reckless imprudence is
not a crime in itself but simply a modality of
committing it”
o Technically correct way to allege quasi-
crimes is to state that their commission
results in damage, either to person or
property
When double jeopardy shall not apply despite a prior
conviction
- For the offense charged, for any attempt to commit
the same or frustration thereof, for any offense which
necessarily in the offense charged (Sec 7, Rule 117)
- As a rule, a conviction for attempted murder will bar a
subsequent prosecution for frustrated murder of the
same person
- The conviction of the accused shall not be a bar to
another prosecution for an offense which necessarily
includes the offense charged in the following
instances
a. The graver offense developed die to supervening
66
 facts arising from the same act or omission offenses:
constituting the former charge a. Theft of electricity under the RPC and violation of
b. The facts constituting the graver charge became PD 401
known or were discovered only after a plea was Theft of electricity PD 401
entered in the former complaint or information Defined and penalized under Special Law
c. The plea of guilty to a lesser offense was made of RPC
the prosecutor and of the offended party except Criminal intent (dolo) or - Special law enacting
Sec 1(f) of Rule 116 negligence (culpa) it
- If the accused has already served, he shall be credited - Criminal intent is not
with the same in the event of conviction for the graver necessary
offense Elements: - Mala prohibita
- Accused had been convicted of serious physical - Intent to gain - Criminal act is not
injuries - Unlawful taking inherently immoral
o After conviction, the victim dies as a result of - Personal property punishable only
the injuries belonging to another because the law says
o Double jeopardy cannot be raised as a - Absence of violence its forbidden
defense in the prosecution for a graver - Single criminal intent may rise to a multiplicity of
offense offenses
o For the provision to apply, the graver offense - Prosecution for the same act is not prohibited, what is
which “supervened” must have risen out of prohibited is the prosecution for the same offense
the same act or omission constituting the
former charge b. Illegal recruitment and estafa
Illegal Recruitment Estafa
Meaning of same offense; when not the same Malum prohibitum Malum in se
- Same offense Criminal intent is not Intent is imperative
o The offense charged, or an attempt to necessary
commit it or a frustrated stage, or Elements: Committed by any person
o “any offense which necessarily includes or is - Accused undertook a who defrauds another by
necessarily included in the offense charged recruitment activity using fictitious name or falsely
in the former complain or information under Labor Code pretends...
- Same criminal act may give rise to two or more - The accused did not
separate and distinct offenses have the license or
o No double jeopardy attaches as long as there the authority to
is variance between the elements of the 2 lawfully engage in
offenses charged the recruitment and
o No double jeopardy when the subsequent placement of
information charges another and different workers
offense, although arising from the same act - The accused
or set of acts committed such
o Prosecution for the same act is not illegal activity
prohibited against three or
o What is forbidden is the prosecution for the more persons
same offense individually or as a
- Suero v People group
o Court stressed that the right against double
jeopardy protects from a second prosecution c. Violation of BP 22 and estafa
for the same offense, not for a different one BP 22 Estafa
- Prosecution under Art 171 of the RPC and Sec 3(e) of Not required Deceit and damage
RA 3019 Mere issuance of a check that Act of postdating or issuing a
o Would not infringe the rule against jeopardy is dishonoured gives rise to check in payment of an
because a comparison of the elements of the the presumption of obligation must be the
crime of falsification of a public document knowledge that part of the efficient cause of the
o Shows that there is neither identity nor drawer that he issued the defraudation
exclusive inclusion between the offense same without sufficient funds
o There is a variance in the elements of the the check should have been
said offenses issued as an inducement for
- Examples of identical acts but constitute different the surrender by the party

67
 deceived of his money or the offended party
property and not in payment - Without complying the requisites, the dismissal will
of a pre-existing obligation not trigger the operation of the “time-bar” rule
Drawer of a dishonoured Negates criminal liability
check, even issued foe a pre- Provisional dismissal of a case does not operate as an
existing obligation acquittal
Crime against public interest Crime against property - Does not operate as a acquittal since its dismissal was
Mala prohibita Mala in se made with express consent of the accused
o No double jeopardy
- Double jeopardy will apply only if the case is
d. Direct bribery defined and punished under Art dismissed without the express consent of the accused
210 of the RPC and those violations of Sec 3(b) of
RA 3019 Time bar rule; when provisional dismissal becomes
Direct Bribery RA 3019 permanent
- Performance of an Mere request or demand of a - Dismissal shall become permanent if:
act constituting a gift, present, share, a. The case is not revived within 1 year after the issuance
crime percentage or benefit is of the order of provisional dismissal with respect to
- Execution of an enough to constitute a offenses punishable by imprisonment, not exceeding
unjust act which violation 6 years or a fine of any amount or both
does not constitute a b. The case is not revived within 2 years after the
crime issuance of the order of provisional dismissal with
- Agreeing to refrain respect to offenses punishable by imprisonment of
or refraining from more than 6 years
doing an act which is
his official duty to do - Sec 14, AM No. 12-11-2, SC
Limited to contracts or o The one or two-year period for reviving a
transactions involving criminal case that has been provisionally
monetary consideration dismiss shall be reckoned from the issuance
where the public officer has of the order of dismissal
the authority to intervene o The dismissal shall become automatically
under the law permanent if the case is not revived within
the required period
o Permanent dismissal shall amount to an
Provisional dismissal; requisites adjudication of the case on the merits
- The dismissal of the criminal action is not permanent - Time-bar rule does not reduce under Art 90 of the
and can be revived within the period set by the ROC RPC
- Sec 8, Rule 117 o Upon lapse of the timeline under the new
o A case shall not be provisionally dismissed rule, the State is presumed, to have
except with the express consent of the abandoned or waived its right to revive the
accused and with notice of the offended case and prosecute the accused
party o The dismissal becomes ipso facto permanent
o “time bar rule” o The State may revive a criminal case beyond
o The provisional dismissal of offenses the 1 or 2-year periods provided that there is
punishable by imprisonment not exceeding 6 justifiable necessity for the delay
years or a fine of any amount, both, shall
become permanent 1 year after issuance of New additional rules on provisional dismissal
the order without the case having been a. When the delays are due to the absence of the
revived essential witness whose whereabouts are unknown or
o With respect to offenses punishable by cannot be determined and,
imprisonment of more than 6 years, their o subject to exclusion in determining
provisional dismissal shall become compliance with the prescribed time limits
permanent 2 years after issuance of the order which caused the trial to exceed 180 days,
without the case having been revived o the court shall provisionally dismiss the
- Requisites: action with the express consent of the
a. There must be express detained accused
consent of the accused b. When the delays are due to the absence of an
b. There must be notice of essential witness whose presence cannot be obtained
by due diligence, though his whereabouts are known
68
 o The court shall provisionally dismiss the
action with the express consent of the
detained accused provided:
1. Hearing has been previously
twice postponed due to the
non-appearance of the
essential witness and both
the witness and the offended
party
2. There is proof of service of
the pertinent notices of
hearings or subpoenas upon PRE-TRIAL- RULE 118
the essential witness and the
offended party at their last Philippine Mediation Center
known postal or email 3. Within 30 days, subject to extension of 30 days
addresses or mobile phone
numbers Resides more than 100 kilomters- viatory right???
c. The public or private prosecutor shall first present 4. Only in civil cases, not in criminal cases
during the trial the essential witness or witnesses 5. People v Webb
to the case before anyone else a. Webb wanted his witnesses to avail
b. SC allowed the deposition cases in criminal
cases
Withdrawal of information distinguished from a motion to Deposition case
dismiss 6. To be conducted by the lawyer who is a notary o the
Withdrawal of information Motion to dismiss place
Order of granting the Order granting a motion to 7. Hire stenographer
withdrawal attains finality dismiss becomes final 15 days 8. The deposition officer will not make any decision
after 15 days receipt, without after receipt, with prejudice to 9. Entirety of the case will be recorded and submitted to
prejudice to the re-filing of the re-filing of the same case the trial court
the information upon once order achieve finality 10. As if their trial, no decision will be made, then will be
reinvestigation submitted to the court
No time bar Has time bar
Requisites:
- Express consent
- Notice to the
offended party
Contemplated in Sec 8, Rule
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