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ATENEO CENTRAL BAR OPERATIONS 2007

Remedial Law
SUMMER REVIEWER

JURISDICTION OVER JURISDICTION OVER


CRIMINAL PROCEDURE THE SUBJECT THE PERSON OF THE
MATTER ACCUSED
Conferred by law. It May be acquired by
cannot be acquired by consent of the accused
the consent of the or by waiver of
PRELIMINARY MATTERS accused. objections.

CRIMINAL PROCEDURE Objection that the court If the accused fails to


It is the method prescribed by law for the has no jurisdiction over make his objection in
apprehension and prosecution of persons accused of the subject matter may time, he will be deemed
any criminal offense and for their punishment, in case be made at any stage of to have waived it.
of conviction (Remedial Law IV, Herrera). the proceeding and the
right to make such
It is concerned with the procedural steps through objection is never
which a criminal case passes, commencing with the waived.
initial investigation of a crime and concluding with the
release of the offender.
JURISDICTION
CRIMINAL JURISDICTION
It is the authority to hear and try a particular offense What determines jurisdiction
and impose the punishment for it (People v. Marinao, Jurisdiction is determined by the extent of the penalty
71 SCRA 600, 604). which the law imposes, on the basis of the facts as
recited in the complaint or information constitutive of
REQUISITES FOR VALID EXERCISE OF the offense charged
CRIMINAL JURISDICTION:
1. Jurisdiction over the subject matter – is the Jurisdiction is not determined by:
power to hear and determine cases of the • what may be meted out to the offender after
general class to which the proceedings in trial
question belong (Reyes v. Diaz, 73 Phil 484); • the result of the evidence that would be
by virtue of the imposable penalty or its nature, presented during the trial
is one which the court is by law authorized to
take cognizance of; conferred by law. Jurisdiction is retained regardless of:
• whether the evidence proves a lesser offense
2. Jurisdiction over the territory where the than that charged in the information,
offense was committed – the offense must • the subsequent happening of events, although
have been committed within the territorial of a character which would have prevented
jurisdiction of the court; jurisdiction over the jurisdiction from attaching in the first instance.
territory; cannot be waived
GENERAL RULE:
3. Jurisdiction over the person of the accused Jurisdiction of a court to try criminal action is to be
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have been brought to its presence for trial, the action.
forcibly by warrant of arrest or upon his
voluntary submission to the court. EXCEPTION: Where the statute expressly provides,
or is construed that it is intended to operate to actions
The question of jurisdiction may be raised at any pending before its enactment, in which case, the
stage of the proceedings. The exception to this rule court where the criminal action is pending is ousted
is when there is estoppel and laches on the party of jurisdiction and the pending action will have to be
who raised the question of jurisdiction. transferred to the other tribunal which will continue
the proceeding.

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—
Remedial Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

Offenses or felonies, whether simple or complexed


with other crimes committed by the public officials
and their employees mentioned in Subsection (a) of
ONCE VESTED, JURISDICTION CANNOT BE this section in relation to their office.
WITHDRAWN BY:
1. Subsequent valid amendment of the If the last element, namely, “in relation to his office” is
Information; or absent or is not alleged in the information, the crime
2. Subsequent statutory amendment of the rules committed falls within the exclusive original
of jurisdiction, unless the amendatory law jurisdiction of ordinary courts and not the SB.
provides otherwise.
The offense is committed in relation to the office if the
Venue is jurisdictional offense is intimately connected with the office of the
Thus: Action must be instituted and tried in the offender and perpetuated while he was in the
municipality or territory where the offense has been performance of his official functions, or when the
committed or where any one of the essential crime cannot exist without the office, or the office is a
ingredients thereof took place. constituent element of the crime as defined in the
statute.
GENERAL RULE:
The question of jurisdiction may be raised at any Election Offenses
stage of the proceedings. Fall outside the jurisdiction of SB even if they are
committed by public officers classified as Grade 27
EXCEPTION: It may not be raised for the first time on and higher and in relation to their offices. It is the
appeal, where there has been estoppel and laches RTC that has jurisdiction as provided for in the
on the party who raises the question. Omnibus Election Code.

Criminal jurisdiction of MTCs Court Martial Cases


Offenses committed by members of the Armed
GENERAL RULE: Forces and other persons subject to military law are
MTC has jurisdiction over all offenses, the maximum cognizable by court martial if such offenses are
penalty of which as provided by law does not exceed “service connected” as expressly enumerated in RA
6 years (prision correccional). 7055.

EXCEPTION: In cases where the only penalty If the particular offense is not one of those
provided by law is a fine, the amount whereof shall enumerated in the law, the case falls under either the
determine the jurisdiction of the court: regular courts or the SB, as the case may be.
• MetroTC, MTC, and MCTC: if fine is not more
than 4000 pesos. Jurisdiction of Family Courts
• RTC: if fine exceeds 4000 pesos, including Republic Act No. 8369 establishing the Family Court
offenses committed by public officers and granting them exclusive original jurisdiction over child
employees in relation to their office, where the and family cases, namely: Criminal cases where one
amount of the fine does not exceed 6000 or more of the accused is below 18 years of age but
pesos. (SC Court Circular No. 09-94). not less than 9 years of age or where one or more of
the victim is a minor at the time of the commission of
Accessory penalties and civil liabilities: no longer the offense, provided that if the minor is found guilty,
determinative of jurisdiction. the court shall promulgate sentence and ascertain
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provision of special law are made triable by the RTC need of an application pursuant to the “Child and
or the Sandiganbayan even if the maximum penalty Youth Welfare Code or P.D. 603).
prescribed by such special law is less than 6 years.
Included in such exceptions are election offenses, Jurisdiction over Complex Crimes
libel or written defamation, and violation of Sec. 39 of Jurisdiction is lodged with the trial court having
the Dangerous Drugs Act of 1972 (RA 6425). jurisdiction to impose the maximum and most serious
penalty imposable of an offense forming part of the
Criminal Jurisdiction of the Sandiganbayan complex crime.

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Effect of institution of the Criminal Action:


Jurisdiction over Crimes Punishable by Destierro The institution of the criminal action interrupts the
Where the imposable penalty is destierro, the case running of the period of prescription of the offense
falls within the exclusive jurisdiction of the Municipal charged
Trial Court, considering that in the hierarchy of
penalties under Article 71 of the Revised Penal Code, UNLESS: otherwise provided in special laws.
destierro follows arresto mayor which involves
imprisonment (People v. Eduarte, 182 SCRA). Act No. 3323 governs the prescriptive periods of
violations of special laws, or offenses other than
Principle of Adherence of Jurisdiction those penalized under the Revised Penal Code.
Once jurisdiction is vested in the court, it is retained
up to the end of litigation (Dela Cruz v. Moya, 160 NOTE: With respect to offenses penalized by special
SCRA 838). laws, the filing of the complaint or information in court
is the one that interrupts the prescriptive period and
not the filing of the complaint in the proper office for
purposes of conducting a preliminary investigation
RULE 110 (Zaldivar v. Reyes, 211 SCRA 277).
PROSECUTION OF OFFENSES
The filing of a complaint for purposes of
CRIMINAL ACTION preliminary investigation starts the prosecution
It is an action by which the State prosecutes a person process.
for an act or omission punishable by law.
REQUISITES OF A COMPLAINT OR
Section 1. Institution of Criminal Actions INFORMATION
1. in writing
For offenses which require preliminary 2. in the name of the People of the Philippines
investigation: 3. Against all persons who appear to be
By filing the complaint with the proper officer for responsible for the offense involved.
preliminary investigation.
• Refers to a complaint-affidavit, and is different Who is the real offended party?
from the complaint defined in Section 3 of Rule The People of the Philippines, but since the crime is
110. also an outrage against the offended party, he is
• Preliminary investigation is required for entitled to intervene in its prosecution in cases where
offenses where the penalty prescribed by law the civil action is impliedly instituted therein.
is at least 4 years, 2 months and 1 day of
imprisonment without regard to the fine (Rule Section 2. The complaint or information
112, Sec. 1, Par. 2).
FORM:
For all other offenses, or for offenses which are 1. In writing;
penalized by law with lower than at least 4 years, 2. In the name of the People of the Philippines;
2 months and 1 day without regard to the fine: and
Instituted directly with the MTC and MCTC, or the 3. Against all persons who appear to be
complaint is filed with the Office of the Prosecutor. responsible for the offense involved.

In Manila and other chartered QuickTime™ and cities,


a the complaint Section 3. Complaint defined
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picture.Prosecutor unless
otherwise provided in their charters. COMPLAINT
It is a sworn written statement charging a person with
NOTE: A complaint for offenses cognizable by the an offense, subscribed by the offended party, any
RTC is NOT filed directly with the RTC either for peace officer, or other public officer charged with the
purposes of preliminary investigation or for enforcement of the law violated.
commencement of the criminal prosecution.
The complaint as defined under Section 3 is different
DOES NOT APPLY: To offenses which are from the complaint filed with the Prosecutor’s Office.
subject to summary procedure It refers to the one filed in court for the

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commencement of a criminal prosecution for violation 4. It must be filed in court.


of a crime usually cognizable by municipal trial courts
as well as to a complaint filed by an offended party in PERSONS AUTHORIZED TO FILE AN
private crimes or those which cannot be prosecuted INFORMATION
de officio. 1. City or provincial prosecutor and their
assistants
REQUISITES OF A COMPLAINT: 2. Duly appointed special prosecutors.
1. It must be in writing and under oath;
2. It must be in the name of the People of the Information and Complaint distinguished
Philippines; COMPLAINT INFORMATION
3. It must charge a person with an offense; and Subscribed by the Subscribed by the
4. It must be subscribed by the offended party, by offended party, any prosecutor. It does not
any peace officer or public officer charged with peace officer or other have to be subscribed by
the enforcement of the law violated. officer charged with the the offended party or any
enforcement of the law peace officer or other
The COMPLAINT FILED WITH THE violated. peace officer charged
PROSECUTOR’S OFFICE, from which the latter with the enforcement of
may initiate a preliminary investigation, refers to: the law.
1. any written complaint Filed either in the MTC or Filed in court.
2. filed by an offended party or not with the provincial/city
3. not necessarily under oath, except in 2 prosecutor’s office
instances:
• complaint for commission of an offense NOTE: PROSECUTION IN THE RTC IS ALWAYS
which cannot be prosecuted de officio or is COMMENCED BY INFORMATION, EXCEPT:
private in nature 1. In certain crimes against chastity
• where the law requires that it is to be (concubinage, adultery, seduction, abduction,
started by a complaint sworn to by the acts of lasciviousness) ; and
offended party, or when it pertains to those 2. Defamations imputing any of the aforesaid
which need to be enforced by specified offenses wherein a sworn written complaint is
public officers. required in accordance with Section 5 of this
Rule.
Under the Rule on Summary Procedure:
A complaint may be directly filed in the MTC, In case of variance between the complaint filed by
provided that in Metro Manila and in chartered cities, the offended party and the information in crimes
the criminal action may only be commenced by the against chastity, the complaint controls (People v.
filing of information, which means, only by the Oso, 62 Phil 271).
prosecutor, except when the offense cannot be
prosecuted de officio as in private crimes. People v. Santiago G.R. No. 137281 (2001)
A defectively crafted information, such as that
PERSONS WHO CAN FILE A COMPLAINT: alleging multiple offenses in a single complaint or
1. Offended party; information transgresses Rule 110, § 13. A. However,
2. Any peace officer; failure to make a timely objection to such a defect is
3. Other public officer charged with the deemed to be a waiver of the said objection.
enforcement of the law violated.
Section 5. Who Must Prosecute Criminal Actions
Section 4. Information QuickTime™
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Full Discretion and Control of the Prosecutor
INFORMATION
All criminal actions commenced by complaint of
It is an accusation in writing charging a person with
information shall be prosecuted under the direction
an offense, subscribed by the prosecutor and filed
and control of the prosecutor.
with the court.
The institution of a criminal action depends upon the
REQUISITES OF AN INFORMATION:
sound discretion of the prosecutor. But once the
1. It must be in writing;
case is already filed in court, the same can no longer
2. It must charge a person with an offense;
be withdrawn or dismissed without the tribunal’s
3. It must be subscribed by the prosecutor; and

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approval. Should the prosecutor find it proper to


conduct a reinvestigation of the case at such stage, Private Prosecutor Participation:
the permission of the Court must be secured (Crespo May a public prosecutor allow a private prosecutor to
v. Mogul). actively handle the conduct of the trial? Yes, where
the civil action arising from the crime is deemed
May a criminal prosecution be restrained by instituted in the criminal action.
injunction?
GENERAL RULE: No Public Prosecutor must be present during the
proceedings and must take over the conduct of the
REASON: Public interest requires that criminal acts trial from the private prosecutor at any time the cause
be immediately investigated and prosecuted for the of the prosecution may be adversely affected.
protection of society.
Thus, where the prosecutor has turned over the
EXCEPTIONS WHERE CRIMINAL PROSECUTION active conduct of the trial to the private prosecutor
MAY BE RESTRAINED BY INJUNCTION who presented testimonial evidence even when the
1. where injunction is justified by the necessity to public prosecutor was absent during the trial, the
afford protection to the constitutional rights of evidence presented could not be considered valid
the accused evidence of the People.
2. when necessary for the orderly administration
of justice or to avoid oppression or multiplicity However: this rule applies only to courts which are
of actions provided by law with prosecutors, and not to
3. when there is a prejudicial question which is municipal courts which have no trial prosecutors, in
sub judice which case the evidence presented by the private
4. when the acts of the officer are without or in prosecutor can be considered as evidence for the
excess of authority People.
5. where the prosecution is under an invalid law,
ordinance or regulation GENERAL RULE:
6. when double jeopardy is clearly apparent In appeals, the Sol. Gen. has control. He may
7. where the court has no jurisdiction over the abandon or discontinue the prosecution of the case in
offense the exercise of his sound discretion and may even
8. where it is a case of persecution rather than recommend the acquittal of an accused when he
prosecution believes that the evidence does not warrant his
9. where the charges are manifestly false and conviction.
motivated by the lust for vengeance
10.when there is clearly no prima facie case EXCEPTION: provided for in RA 8249 which states in
against the accused and the motion to quash part that “in all cases elevated to the Sandiganbayan
on that ground has been denied and from the SB to the SC, the Office of the
11.preliminary injunction has been issued by the Ombudsman, through its special prosecutor, shall
Supreme Court to prevent the threatened represent the People of the Philippines, except in
unlawful arrest of petitioners. cases filed pursuant to EO Nos. 1, 2, 14 and 14-A,
issued in 1986.”
Prior to the filing of the information in court, the
prosecutor has full control of the case. He When it is said that the requirement of Art. 344 of
decides who should be charged in court and who RPC is jurisdictional, what is meant is that it is the
should be excluded from the information. complaint that starts the prosecutory proceeding. It is
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DECISION OF THE PROSECUTOR
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court to try the case.
REVIEW BY:
• the Secretary of Justice who exercises People v. Yparraguire, G. R. No. 124391 (2000)
supervision and control over his actions and Even when a complaint is defective for being
who may sustain, modify or set aside his signed and filed by the chief of police and not by the
resolution on the matter complainant, the court may still acquire jurisdiction
• in appropriate cases, by the courts when he over the case. The complaint required in Art. 344 of
acts with grave abuse of discretion amounting the RPC is but a condition precedent to the exercise
to lack of jurisdiction. by the proper authorities of the power to prosecute
the guilty parties. The complaint simply starts the

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prosecutory proceeding but does not confer 3. A defamation imputing to a person any of the
jurisdiction in the court to try the case. Art. 344 is not foregoing crimes of concubinage, adultery,
determinative of the jurisdiction of courts over private seduction, abduction, rape or acts of
offenses because the same is governed by the lasciviousness can be prosecuted only by the
Judiciary Law and not the RPC. party or parties defamed (Article 360, last
paragraph, Revised Penal Code).
Once the complaint is filed, does death of the
complainant in a crime of adultery extinguish the NOTE: If the offended party is of legal age and does
criminal liability of the accused? No. The not suffer from physical or mental disability, she
participation of the offended party in private crimes is alone can file the complaint to the exclusion of all.
essential not for the maintenance of the criminal
action but solely for the initiation thereof. Any pardon Who can give pardon?
given by the complainant or her death after the filing 1. Concubinage and adultery – only the
of the complaint would not deprive the court of the offended spouse not otherwise incapacitated,
jurisdiction to try the case. can validly extend the pardon or consent
contemplated therein.
REMEDIES OF THE OFFENDED PARTY IF THE 2. Seduction, abduction and acts of
PROSECUTOR REFUSES TO FILE AN lasciviousness -
INFORMATION: a. the offended minor, if with sufficient
1. File an action for mandamus, in case of grave discretion can validly pardon the accused
abuse of discretion by herself if she has no parents or where
2. Lodge a new complaint before; the court the accused is her own father and her
having jurisdiction over the offense; mother is dead
3. Take up the matter with the Secretary of b. the parents, grandparents or guardian of
Justice in accordance with the Administrative the offended minor, in that order, cannot
Code; extend a valid pardon in said crimes without
4. Institute administrative charges against erring the conformity of the offended party, even if
prosecutor; and the latter is a minor;
5. File criminal action against the prosecutor with c. if the offended woman is of age and not
the corresponding civil action for damages. otherwise incapacitated, only she can
extend a valid pardon.
PROSECUTION OF PRIVATE CRIMES
The pardon refers to pardon BEFORE filing of the
Who may prosecute? criminal complaint in court. Pardon effected after the
1. Concubinage and adultery – only by the filing of the complaint in court does not prohibit the
offended spouse who should have the status, continuance of the prosecution of the offense
capacity and legal representation at the time of EXCEPT in case of marriage between the offender
filing of the complaint regardless of age; Both and the offended party.
guilty parties must be included in the
complaint; The offended party did not consent Pardon and Consent
to the offense nor pardoned the offenders. PARDON CONSENT
2. Seduction, Abduction and Acts of Refers to past acts of Refers to future acts
Lasciviousness – prosecuted exclusively and adultery.
successively by the following persons in this
order: In order to absolve the In order to absolve the
a. By the offended woman;
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judicial guardians in that successive order, offenders. only to the offending
if the offended party is a minor or of age but spouse.
suffers from physical or mental disability;
c. By the State pursuant to the doctrine of The SUBSEQUENT MARRIAGE between the party
parens patriae, when the offended party and the accused extinguishes the criminal liability of
dies or becomes incapacitated before she the latter, together with that of the co-principals,
could file the complaint and she has no accomplices and accessories, Except:
known parents, grandparents or guardians. a. Where the marriage was invalid or contracted
in bad faith in order to escape criminal liability.

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b. In “private libel” or the libelous imputation of NOTE: Substantial defect in the information cannot
the commission of the crimes of concubinage, be cured by evidence that would jeopardize the
adultery, seduction, abduction, rape or acts of accused’s right to be informed of the true nature of
lasciviousness and in slander by deed; the offense he is charged with.
c. In multiple rape, insofar as the other accused
in the other acts of rape respectively Section 7. Name of the accused
committed by them are concerned.
NAME OF THE ACCUSED
NOTE: The acquittal or death of one of the accused 1. If name is known: the name and surname of
in the crime of adultery does not bar the prosecution the accused or any appellation or nickname by
of the other accused (People v. Topiño, 35 Phil 901). which he has been or is known.

However, the death of the offended spouse before 2. If name cannot be ascertained: a fictitious
the filing of the complaint for adultery bars further name with a statement that his true name is
prosecution, BUT if the offended spouse died after unknown.
the filing of the corresponding complaint, his death
will not prevent the proceeding from continuing to its • If true name thereafter disclosed: such true
ultimate conclusion. name shall be inserted in the complaint or
information and record.
Effect of Desistance of Complainant
It does not bar the People from prosecuting the 3. While one or more persons, along with
criminal action. BUT: it does operate as a waiver of specified and named accused, may be sued as
the right to pursue civil indemnity. “John Does,” an information against all
accused described as “John Does” is void, and
An offended party in a criminal case has sufficient an arrest warrant against them is also void.
personality to file a special civil action for certiorari, in
proper cases, even without the imprimatur of the NOTE: An error in the name of the accused is not
State. In so doing, the complainant should not bring reversible as long as his identity is sufficiently
the action in the name of the People of the established. This defect is curable at any stage of
Philippines. The action may be prosecuted in the the proceedings as insertion of the real name of the
name of the said complainant (Perez v. Hagonoy accused is merely a matter of form (People v. Padica,
Rural Bank, Inc. 327 SCRA 588). 221 SCRA 362).

Section 6. Sufficiency of complaint or information Section 8. Designation of the offense

A COMPLAINT IS SUFFICIENT IF IT STATES: THE INFORMATION OR COMPLAINT MUST


1. the name of the accused STATE OR DESIGNATE THE FOLLOWING
2. the designation of the offense by a statute WHENEVER POSSIBLE:
3. the acts or omission complained of as 1. The designation of the offense given by the
constituting the offense statute. If there is no designation of the
4. the name of the offended party offense, reference shall be made to the section
5. the approximate time of the commission of the of the statute punishing it.
offense 2. The statement of the acts or omissions
6. the place where the offense was committed. constituting the offense, in ordinary, concise
and particular words.
People v. Dela Cruz, G.R. No. and
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a (2001) 3. The specific qualifying and aggravating
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see this picture. circumstances must be stated in ordinary and
eyewitnesses in the information does not preclude concise language.
the prosecutor from presenting them during trial.
The qualifying and aggravating circumstances cannot
PURPOSE: to safeguard the constitutional right of an be appreciated even if proved unless alleged in the
accused to be informed of the nature and cause of information (People v. Perreras, 362 SCRA 202).
the accusation against him so that he can duly
prepare his defense. In case of allegation of aggravating circumstance of
HABITUAL DELINQUENCY, it should not be
generally averred. The information must specify:

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a. the commission of the crimes;


b. the last conviction or release; IMPORTANT: The new rule requires that the
c. the other previous conviction or release of the qualifying and aggravating circumstances be alleged
accused. in the information.

In rape cases, the concurrence of the minority of the PURPOSE:


victim and her relationship with the offender is a 1. To enable the court to pronounce a proper
special qualifying circumstance which should be both judgment;
alleged (People v. Cantos, 305 SCRA 786) and 2. To furnish the accused with such a description
proved (People v. Manggasin) with certainty in order of the charge as to enable him to make a
to warrant the imposition of the [maximum] penalty. defense;
3. As a protection against further prosecution for
DESIGNATION OF THE OFFENSE the same cause. ( U.S. v. Karelsen).
1. In case of a conflict between the designation of
the crime and the recital of facts constituting RULE ON NEGATIVE AVERMENTS:
the offense, the latter prevails over the former. 1. Where the law alleged to have been violated:
2. The real question is not, did he commit a crime • prohibits generally acts therein defined
given in the law some technical and specific • is intended to apply to all persons
name, but did he perform the acts alleged in indiscriminately,
the body of the information. If he did, it is of no • but prescribes certain limitations or
consequence to him, either as a matter of exceptions from its violation the information
procedure or of substantive right, how the law is sufficient if it alleges facts which the
denominates the crime. offender did as constituting a violation of
law, without explicitly negating the
It is not the designation of the offense in the exception, as the exception is a matter of
complaint or information that is controlling (People v. defense which the accused has to prove.
Samillano, 56 SCRA 573); the facts alleged therein
and not its title determine the nature of the crime 2. Where the law alleged to have been violated…
(People v. Magdowa, 73 Phil 512). • applies only to specific classes of persons
and special conditions
The accused may be convicted of a crime more • the exemptions from its violation are so
serious than that named in the title or preliminary part incorporated in the language defining the
if such crime is covered by the facts alleged in the crime that the ingredients of the offense
body of the information and its commission is cannot be accurately and clearly set forth if
established by evidence (Buhat v. Court of Appeals, the exemption is omitted, the information
265 SCRA 701). must show that the accused does not fall
within the exemptions.
An accused could not be convicted under one act
when he is charged with a violation of another if the NOTE: When an exception or negative allegation is
change from one statue to the other involves: not an ingredient of the offense and is a matter of
a. a change in the theory of the trial; defense, it need not be alleged (U.S. v. Chan Toco,
b. requires of the defendant a different defense; 12 Phil 262).
or
c. surprise the accused in any way. (U.S. v. COMPLEX CRIMES
Panlilio, 28 Phil 603). Where what is alleged in the information is a
QuickTime™ and a complex crime and the evidence fails to support the
Section 9. CauseTIFF
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defendant can be convicted of the offense proven.
If one or more elements of the offense have not been
alleged in the information, the accused cannot be Section 10. Place of commission of the offense
convicted of the offense charged, even if the missing
elements have been proved during the trial. GENERAL RULE:
A complaint or information is sufficient if it appears
Even the accused’s entering a plea of guilty to such from the allegation that the offense was committed or
defective information will not cure the defect, nor some of its essential ingredients occurred at some
justify his conviction of the offense charged. place, within the territorial jurisdiction of the court.

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should be alleged in the information and proved at


EXCEPTION: When the place of commission is an the trial. The New Rules of Criminal Procedure which
essential element of the offense, the place of took effect on Dec. 1, 2000, now specifically require
commission must be alleged with particularity e.g. that both qualifying and aggravating circumstances to
trespass to dwelling, destructive arson, robbery in an be alleged in the information.
inhabited house.
Section 12. Name of the offended party
PURPOSE: To show territorial jurisdiction of the
court. The rules require the complaint or information to state
the name and surname of the persons against whom
May conviction be had even if it appears that the or against whose property the offense was committed
crime was committed not at the place alleged in or any appellation or nickname by which such person
the information? Yes, provided the place of actual has been or is known and if there is no better way of
commission was within the jurisdiction of the court. identifying him, he must be described under a
fictitious name (Sayson v. People, 166 SCRA 693).
UNLESS: the particular place of commission is an
essential element of the offense charged. In crimes against property, if the name of the
offended party is unknown, the property must be
Section 11. Date of commission of the offense described with such particularity as to properly
identify the particular offense charged.
What is the determinative factor in the resolution of
the question involving a variance between the To constitute larceny, robbery, embezzlement,
allegation and proof in respect of the date of the obtaining money by false pretenses, malicious
crime? The element of surprise on the part of the mischief, etc., the property obtained must be that of
accused and his inability to defend himself properly another person, and indictment for such offense must
name the owner and a variance in this respect
People v. Elpedes, G.R. No. 137106-07 (2001) between the indictment and the proof will be fatal.
The remedy against an indictment that fails to
allege the time of commission of the offense with Section 13. Duplicity of the Offense
sufficient definiteness is a motion for bill of particulars
(Rule 116 § 10). The failure to move or specification The information is defective when it charges two or
or the quashal of the information on any of the more DISTINCT or DIFFERENT offenses. A
grounds provided for in the Rules deprives the complaint or information must charge only one
accused of the right to object to evidence which could offense, except when the law prescribes a single
be lawfully introduced and admitted under an punishment for various offenses.
information of more or less general terms but which
sufficiently charges the accused with a definite crime. PURPOSE: To give the defendant the necessary
Besides, the exact date of the commission of the knowledge of the charge to enable him to prove his
crime is not an essential element of the crime. defense. The State should not heap upon the
defendant two or more charges which might confuse
People v. Baniguid, GR No. 137714 (2000) him in his defense.
Death penalty is imposed for the crime of rape if
the “victim is under 18 years of age and the offender WAIVER
is a parent of the victim.” For this purpose, the special When the accused fails, BEFORE ARRAIGNMENT,
qualifying circumstances of the victim’s minority and to move for the quashal of the information which
her relationship with the offender
QuickTime™ and a must be alleged charges 2 or more offenses, he thereby waives the
TIFF (Uncompressed) decompressor
and proved. The information must
are needed to see this state the exact age
picture. objection and may be found guilty of as many
of the victim at the time of the commission of the offenses as those charged and proved during the
crime. trial.

Where the law with respect to an offense may be


People v. De Villa, G.R. No. 124639 (2001)
committed in any of the different modes provided by
Under the amendatory provisions of RA 7659 §
law, the indictment in the information is sufficient if
11, the attendance of facts that would mandate the
the offense is alleged to have been committed in one,
imposition of the single indivisible penalty of death
two or more modes specified therein. The various
are in the nature of qualifying circumstances which
ways of committing the offense should be considered

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as a description of only one offense and the arraignment of the accused under the
information cannot be dismissed on the ground of amended information.
multifariousness.
Technically, paragraph 2 of Section 14 does not refer
EXCEPTIONS TO THE RULE ON DUPLICITY to amendment, but to substitution of the complaint or
1. continuous crimes information by a new one. If the substitution is made
2. complex crimes before the accused enters his plea, the question of
3. special complex crimes double jeopardy does not arise. If the filing of new
4. crimes susceptible of being committed in information is done after the plea and before
various modes judgment on the ground that there has been a
5. crimes of which another offense is an mistake in charging the proper offense, the filing
ingredient thereof may only be allowed if it will not place the
accused twice in jeopardy.
REQUISITES OF CONTINUOUS CRIMES:
1. Plurality of acts performed separately during a Test as to whether a defendant is prejudiced by
period of time; an amendment:
2. Unity of penal provision infringed upon or • whether a defense under the information as it
violated; originally stood would be available after the
3. Unity of criminal intent which means that two or amendment is made, and
more violations of the same penal provision • whether any evidence defendant might have
are united on one and the same intent leading would be equally applicable to the information
to the perpetration of the same criminal in the new form as in the other.
purpose or claim (People v. Ledesma).
GENERAL RULE:
Section 14. Amendment or Substitution After arraignment, the prosecutor may no longer
amend the information which changes the nature of
KINDS OF AMENDMENT OR SUBSTITUTION the crime, as it will prejudice the substantial rights of
a. BEFORE THE ACCUSED ENTERS HIS PLEA, the accused.
THE PROSECUTOR MAY:
• upgrade the offense EXCEPTION: When a fact supervenes which
• allege qualifying and aggravating changes the nature of the crime charged in the
circumstances or information or upgrades it to a higher crime, the
• change the offense charged prosecutor, with leave of court, may amend the
information to allege such supervening fact and
WITHOUT LEAVE OF COURT, provided there upgrade the crime charged to the higher crime
is evidence thereon which has been presented brought about by such supervening fact.
during the preliminary investigation.
HOWEVER: if the supervening event which changes
HOWEVER, PROSECUTOR CANNOT: the nature of the crime to a more serious one
• downgrade the offense charged occurred after the accused has been convicted,
• exclude from the information a co-accused which makes the amendment of the information no
without filing a motion to that effect, with longer the remedy of the prosecution, the prosecution
notice to the offended party, and subject to can and should charge the accused for such more
the approval of the court. The court shall serious crime, without placing the accused in double
state the reasons in resolving the motion jeopardy, there being no identity of the offense
and copies thereof QuickTime™ furnished
and a all parties, charged in the first information and in the second
TIFF (Uncompressed) decompressor
especiallyarethe offended
needed party.
to see this picture. one.

b. AFTER THE PLEA- Section 14 applied only to original case and not
a. If it covers only formal amendment- leave of to appealed case.
court is obtained and such amendment is
not prejudicial to the rights of the accused. Gabionza v. CA, G.R. No. 140311 (2001)
b. But when a fact supervenes which changes When amendments to informations may be
the nature of the crime charged in the allowed:
information or upgrades it to a higher crime, a. it does not deprive the accused of the right to
in which case, there is a need for another invoke prescription

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b. it does not deprive the accused of the right to for if the original would
invoke prescription be withdrawn, the
c. it does not affect or alter the nature of the accused could invoke
offense originally charged double jeopardy.
d. it does not involve a change in the basic theory
of the prosecution so as to require the accused VARIANCE BETWEEN INDICTMENT AND PROOF:
to undergo any material charge or modification 1. When the offense proved is less serious than
in his defense and is necessarily included in the offense
e. it does not expose the accused to a charge charged, in which case, the defendant shall be
which would call for a higher penalty convicted of the offense proved.
f. it does not cause surprise or deprive the 2. When the offense proves is more serious than
accused of an opportunity to meet the new and includes the offense charged, in which
averment. case the defendant shall be convicted of the
A defendant may file a counterclaim for offense charged;
interpleader against the plaintiff and a third party also 3. When the offense proved is neither included in,
claiming the subject matter of the suit.. nor does it include, the offense charged and is
different therefrom, in which case the court
LIMITATION TO THE RULE ON SUBSTITUTION: should dismiss the action and order the filing of
a. No judgment has yet been rendered; new information charging the proper offense.
b. The accused cannot be convicted of the (Substitution of information applies in this
offense charged or of any other offense case).
necessarily included therein;
c. The accused would not be placed in double Section15. Place where action is to be instituted
jeopardy.
VENUE IN CRIMINAL CASE IS JURISDICTIONAL,
Amendment vs. Substitution BEING AN ESSENTIAL ELEMENT OF
AMENDMENT SUBSTITUTION JURISDICTION.
May involve either formal Involves substantial
or substantial changes. change from original PURPOSE: Not to compel the defendant to move to
charge. and appear in a different court from that of the
Amendment before the Substitution of territory where the crime was committed as it would
pleas has been entered information must be with cause him great inconvenience in looking for his
can be effected without leave of court as the witnesses and other evidence in another place.
leave of court. original information has
to be dismissed. GENERAL RULE:
Amendment is only as to Another preliminary Penal laws are territorial; hence Philippine courts
form, there is no need for investigation is entailed have no jurisdiction over crimes committed outside
another preliminary and the accused has to the Philippines.
investigation and the plead anew to the new
retaking of the plea of the information. EXCEPTIONS:
accused. 1. Those provided in Article 2 of the Revised
An amended information Requires or presupposes Penal Code. Those who commit any of the
refers to the same that the new information crimes contemplated therein can be tried by
offense charged in the involves a different Philippine courts.
original information or to offense which does not 2. Where an offense is committed on a railroad
an offense which TIFF (Uncompre includes
QuickTime™ and a or is not train, in an aircraft or other public or private
ssed) decompressor
necessarily includes or is necessarily
are needed t o s ee this picture. included in vehicle in the course of its trip, the criminal
necessarily included in the original charge, action shall be instituted and tried in the court
the original charge, hence the accused of any municipality or territory where such
hence substantial cannot claim double train, aircraft or other vehicle passed during its
amendments to the jeopardy. trip, including the place of its departure and
information after the plea arrival.
has been taken cannot 3. Where an offense is committed on board a
be made over the vessel in the course of its voyage, the criminal
objection of the accused, action shall be instituted and tried in the court
of the first port of entry or of any municipality or

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territory where the vessel passed during such HOWEVER: Once the offended party has filed a
voyage, subject to the generally accepted separate civil action arising from the crime, he may
principles of international law. not withdraw such civil case in order to intervene in
4. Piracy – has no territorial limits as it is a crime the criminal prosecution. He loses the right to
against all mankind. intervene. He no longer has any standing in the
5. Libel – the action may be instituted at the criminal case, except to be a prosecution witness.
election of the offended party in the province or
city: Where a criminal action has been provisionally
a. where the libelous article is printed or first dismissed upon motion of the prosecutor, can
published; the case be revived upon motion of the offended
b. If one of the offended parties is a private party? No, because the offended party or
individual, where said private individual complaining witness cannot act for the prosecutor.
actually resides at the time of the
commission of the offense;
c. If the offended party is a public official,
where the latter holds office at the time of RULE 111
the commission of the offense. PROSECUTION OF CIVIL ACTION
6. In exceptional circumstances- to ensure a fair
trial and impartial inquiry. The Supreme Court Section 1. Institution of criminal and civil actions
shall have the power to order a change of
venue or place of trial to avoid the miscarriage GENERAL RULE:
of justice (Sec. 5[4], Article VIII, 1987 The institution or filing of the criminal action includes
Constitution), the institution therein of the civil action for recovery of
7. B.P. 22 cases- criminal action shall be filed in civil liability arising from the offense charged.
the place where the check was dishonored.
EXCEPTIONS: Where institution of criminal liability
VENUE IS JURISDICTIONAL does not include civil liability the offended party
The court has no jurisdiction to try an offense WAIVES the civil action; he RESERVES his right to
committed outside its territorial jurisdiction. It cannot institute the civil action separately; or he
be waived or changed by the agreement of the INSTITUTES THE CIVIL ACTION PRIOR TO THE
parties or by consent of the defendant. CRIMINAL ACTION.
Section 16. Intervention of the offended party in The employer may not be held civilly liable for quasi-
criminal action delict in the criminal action as ruled in Maniago v.
Court of Appeals since quasi-delict is not deemed
GENERAL RULE: instituted with the criminal. If at all, the only civil
Offended party has the right to intervene by counsel liability of the employer in the criminal action would
in the prosecution of the criminal action where the be his subsidiary liability under the Revised Penal
civil action for recovery of civil liability is instituted in Code.
the criminal action pursuant to Rule 111.
WHEN RESERVATION SHALL BE MADE:
EXCEPTIONS: a. Before the prosecution starts to present its
1. Where from the nature of the crime and the law evidence; and
defining and punishing it, no civil liability arises b. Under circumstances affording the offended
in favor of the offended party; party a reasonable opportunity to make such
2. Where the offended party has waived the right
QuickTime™ and a reservation.
to civil indemnity; or
TIFF (Uncompressed) decompressor
are needed to see this picture.
3. Where the offended party has already INSTANCES WHERE NO RESERVATION SHALL
instituted an action. BE ALLOWED
1. Criminal action for violation of BP 22 – unless
Where the offended party withdrew a reservation to a separate civil action has been filed before the
file a separate civil action, the private prosecutor may institution of the criminal action, no such civil
still intervene in the prosecution of the criminal case, action can be instituted after the criminal action
by conducting the examination of witnesses under has been filed as the same has been included
the control of the prosecutor. therein.

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2. A claim arising from an offense which is Purpose of Exception: to prevent the offended party
cognizable by the Sandiganbayan – a civil from using the prosecutor’s office and the court as
action filed prior to the criminal action has to be vehicles for recovery of the face value of the check,
transferred to the subsequently filed criminal without paying the corresponding filing fees therefor.
action for joint hearing (Sec. 4 of PD1606 as
amended by RA 8249) With respect to damages other than actual, if these
damages are specified in the complaint or
3. Tax cases (Sec. 7, par. b, no.1, RA 9282) information, the corresponding filing fees should be
paid, otherwise, the trial court will not acquire
When the reservation of the right to institute the jurisdiction over such other damages.
separate civil actions shall be made: before the
prosecution starts to present its evidence and under Where moral, exemplary and other damages are not
circumstances affording the offended party a specified in the complaint or information, the grant
reasonable opportunity to make such a reservation. and amount thereof are left to the sound discretion of
the trial court, the corresponding filing fees need not
The rule requiring reservation to file a separate civil be paid and shall simply constitute a first lien on the
action does not apply to civil actions which can be judgment.
filed and prosecuted independently of the criminal
action, namely, those provided in Arts. 32, 33, 34 and NOTE: Counterclaims, cross-claims, third-party
2176 of the Civil Code. complaints are no longer allowed in a criminal
proceeding. Any claim which could have been the
Although the criminal and civil actions may be joined subject thereof maybe litigated in a separate civil
in the criminal case, they are distinct from each other. action.
The plaintiffs in the two actions are different.
In an appeal of a criminal case, the appellate court
THUS: even if the accused started serving his may impose additional damages or increase or
sentence within the 15-day period from the decrease the amounts of damages upon the
promulgation of the judgment of conviction by the accused-appellant.
lower court, thereby making the judgment against him
final, the complainant may, within the 15-day HOWEVER, additional penalties cannot be imposed
reglementary period, still ask that the civil liability be upon a co-accused who did not appeal, but
fixed by the court, if the judgment does not adjudicate modifications of the judgment beneficial to him are
any civil liability, as the judgment regarding civil considered in his favor.
liability has not become final and the court still has
jurisdiction to adjudge the civil liability. The offended party in a criminal case may appeal the
civil aspect despite the acquittal of the accused.
NOTE: Only civil liability arising from crime charged Where the trial court convicted the accused, but
(cause of action arising from delict) as a felony is dismissed the civil action instituted therein, the
deemed instituted. Civil liability arising from other offended party may appeal the dismissal to the CA.
sources of obligations (law, quasi-contract and quasi-
delict) are no longer deemed instituted like those Compromise on civil aspect:
under Article 32, 33, 34 and 2176 of the Civil Code The offended party may compromise the civil aspect
which can be prosecuted even without reservation. of a crime, provided that it must be entered before or
during the litigation, and not after final judgment. A
RULES ON FILING FEES compromise on the civil aspect is valid even if it turns
GENERAL RULE: No QuickTime™ filing fees and a
are required for out to be unsatisfactory either to one or both of the
amounts of actualTIFF
damages.
(Uncompressed) decompressor
are needed to see this picture.
parties.

EXCEPTION: Criminal action for violation of BP 22 IMPORTANT: Section 1, Rule 111 now expressly
which is deemed to include the corresponding civil provides that no counterclaim, cross-claim or third-
action. The offended party shall, upon the filing of the party complaint may be filed by the accused in the
criminal and civil actions, pay in full the filing fees criminal case, but any cause of action which could
based on the face value of the check as the actual have been subject thereof may be litigated in a
damages. separate civil action.

REASONS:

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a. the counterclaim of the accused will criminal act or omission. It does not state that the
unnecessarily complicate and confuse the remedy can be availed of only in a separate civil
criminal proceedings; action.
b. the trial court should confine itself to the
criminal aspect and the possible civil liability of ACQUITTAL IN A CRIMINAL CASE DOES NOT
the accused arising out of the crime. BAR THE FILING OF THE CIVIL CASE WHERE:
1. The acquittal is based on reasonable doubt, if
Section 2. When separate civil action is the civil case has been reserved.
suspended 2. The decision contains a declaration that the
liability is not criminal but only civil in nature.
Primacy of Criminal Action over Civil Action 3. The civil liability is not derived from or based
After the filing of the criminal action, the civil action on the criminal act of which the accused is
which has been reserved cannot be instituted until acquitted. (Sapiera v. Court of Appeals, 314
final judgment has been rendered in the criminal SCRA 370)
action
Section 3. When civil action may proceed
If the civil action is instituted before the criminal independently
action and the criminal action is subsequently
commenced, the pending civil action shall be Prior reservation is not necessary to file separate civil
suspended until final judgment of the criminal action action under Arts. 32, 33, 34 and 2176 of the Civil
has been rendered. Code. The phrase “which has been reserved” that
has caused conflicting rulings in the past has now
EXCEPTIONS: been deleted.
1. In cases of independent civil actions based
upon Article 32, 33, 34 and 2176 of the Civil Actions based on quasi-delict may be filed
Code; independently of the criminal action regardless of the
2. In cases where the civil action presents a result of the criminal action, except that a plaintiff
prejudicial question; and cannot recover damages twice for the same act or
3. Where the civil action is not one intended to omission of the defendant.
enforce the civil liability arising from the
offense. PURPOSE: To make the court’s disposition of the
criminal case of no effect whatsoever on the separate
CONSOLIDATION OF CRIMINAL AND CIVIL civil case.
CASES
Before judgment on the merit is rendered in the civil Section 4. Effect of death on civil actions
action, the same may, upon motion of the offended
party be consolidated with the criminal action in the EFFECT OF DEATH OF THE ACCUSED ON CIVIL
court trying the criminal action. This is a modification ACTIONS
on the rule on primacy of criminal action. 1. After arraignment and during the pendency
of the criminal action:
The consolidation must be effected in the criminal
court, irrespective of the nature of the offense, the GENERAL RULE:
amount of the civil claim or the rank of the court trying Death extinguishes the civil liability arising from
the civil case. delict or the offense

In cases where consolidation is given due course, the


QuickTime™ and a
EXCEPT: where civil liability is predicated on
evidence presented and admitted
TIFF (Uncompressed) decompressor
are needed to see this picture.
in the civil case other sources of obligations such as law,
shall be deemed automatically reproduced in the contract, quasi-contract and quasi-delict.
criminal action.
If such civil action which survives is impliedly
The consolidated criminal and civil cases shall be instituted in the criminal action, the legal
tried and decided jointly. representative or heir of the deceased shall be
substituted for the deceased. The criminal
NOTE: Article 29 of the Civil Code merely case is reduced to a civil action.
emphasizes that a civil action for damages is not
precluded by the acquittal of an accused for the same

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However, if the civil action has been reserved NOTE: A prejudicial question is based on a fact
and subsequently filed or such civil action has distinct and separate from the crime but so intimately
been instituted, when the accused died, then connected with it that it determines the guilt or
such civil action will proceed and substitution innocence of the accused.
of parties shall be ordered by the court
pursuant to Sec.16 Rule 3 of the Rules of PREJUDICIAL QUESTION
Court. 1. The prejudicial question may be raised during
the preliminary investigation of the offense or
2. Before arraignment: in court before the prosecution rests its case.
2. The suspension of the criminal case due to a
The civil action impliedly instituted in the prejudicial question is only a procedural matter,
criminal action shall be dismissed without and is subject to a waiver by virtue of prior acts
prejudice to the offended party’s filing a civil of the accused.
action against the administrator of the estate of 3. There is no prejudicial question where one
the deceased. case is administrative and the other is civil.

NOTE: The independent civil action instituted Time to Plead


under Section 3 of this Rule or which thereafter When the criminal action has been filed in court for
is instituted to enforce liability arising from trial, the petition to suspend shall be filed in the same
other sources of obligation may be continued criminal action at any time before the prosecution
against the estate or legal representative of the rests.
accused after proper substitution, or against
said estate, as the case may be. WHERE TO FILE PETITION FOR SUSPENSION BY
REASON OF PREJUDICIAL QUESTION
3. Pending appeal of his conviction: 1. Office of the Prosecutor; or
2. Court where the criminal action has been filed
It extinguishes his criminal liability as well as for trial at any time before the prosecution
the civil liability based solely thereon. rests.

4. Prior to final judgment: Section 7. Elements of prejudicial question


It terminates his criminal liability and only the
civil liability directly arising from and based ELEMENTS OF A PREJUDICIAL QUESTION
solely on the offense committed. 1. The civil action must be instituted PRIOR to
the criminal action;
Section 5. Judgment in civil action not a bar 2. The civil action involves an issue similar or
intimately related to the issue raised in the
The judgment in civil actions based on Arts. 32, 33, subsequent criminal action;
34 and 2176 absolving the defendant from civil 3. The resolution of such issue determines
liability does not bar the criminal action. whether or not the criminal action may
proceed.
NOTE: Where the criminal case was dismissed
before trial because the offended party executed an
affidavit of desistance, the civil action thereof is
similarly dismissed. RULE 112
PRELIMINARY INVESTIGATION
Section 6. SuspensionQuickTime™
by reason and a
of prejudicial
question TIFF (Uncompressed) decompressor
are needed to see this picture.
Section 1. Preliminary investigation defined;
when required
PREJUDICIAL QUESTION
It is one which arises in a case, the resolution of PRELIMINARY INVESTIGATION
which is a logical antecedent of the issue involved It is an inquiry or proceeding to determine whether
therein and the cognizance of which pertains to there exists sufficient ground to engender a well-
another tribunal. founded belief that a crime has been committed and
that the respondent is probably guilty thereof and
PURPOSE: To avoid two conflicting decisions. should be held for trial.

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PURPOSES: If an objection was raised, the court, instead of


1. To determine whether a crime has been dismissing the complaint or information should order
committed and whether there is probable the conduct of such investigation (Doromal v.
cause to believe that the accused is guilty Sandiganbayan, 117 SCRA 354).
thereof.
2. To preserve evidence and keep the witnesses REMEDIES OF THE ACCUSED IF THERE WAS NO
within the control of the State. PRELIMINARY INVESTIGATION:
3. To determine the amount of bail, if the offense 1. Refuse to enter a plea upon arraignment and
is bailable. object to further proceedings upon such
ground.
Preliminary investigation is required to be conducted 2. Insist on a preliminary investigation.
BEFORE the filing of a complaint or information for 3. Raise lack of preliminary investigation as error
an offense where the penalty prescribed by law is at on appeal.
least 4 years, 1 months and 7 day without regard to 4. File a petition for certiorari.
the fine. 5. File for petition for prohibition.

It is not part of the trial of the criminal action in court.


Nor is its record part of the record of the case in the There is NO right of preliminary investigation when a
RTC. The dismissal of the case by the investigator person is lawfully arrested without a warrant unless
will not constitute double jeopardy and will not bar the there is a waiver of the provisions of Article 125 of the
filing of another complaint for the same offense, but if Revised Penal Code.
re-filed, the accused is entitled to another preliminary
investigation (U.S. v. Marfori, 35 Phil 666). HOWEVER, THE ACCUSED CAN ASK FOR
PRELIMINARY INVESTIGATION IN THE
It is subject to the requirements of both substantive FOLLOWING CASES:
and procedural due process. 1. If a person is arrested, he can ask for
preliminary investigation BEFORE the filing of
The right of an accused to a preliminary investigation the complaint/ information BUT he must sign a
is not a constitutional but merely a statutory right. waiver in accordance with Article 125, RPC.
Nonetheless, it is a component part of due process in 2. AFTER the filing of the information/ complaint,
criminal justice and is a substantive right. the accused may, within 5 days from the time
he learns of its filing ask for preliminary
A personal right and may be waived expressly or by investigation.
implication.
NOTE: This Rule has been partially amended by AM
Lack of preliminary investigation is not a ground to 05-0-8-26-SC. The amendments took effect on
quash or dismiss a complaint or information, nor does October 3, 2005. The amendment removed the
it affect the court’s jurisdiction. When there is no conduct of preliminary investigation from the judges
preliminary investigation, the accused must invoke it of the first level courts.
at the first opportunity and the court should hold in
abeyance or suspend proceedings and remand the Section 2. Officers authorized to conduct
case to the office of the prosecutor for him to conduct preliminary investigation
PI.
OFFICERS AUTHORIZED TO CONDUCT
WAIVER: PRELIMINARY INVESTIGATION
1. Failure to claim it QuickTime™
before the and a
accused pleaded. 1. provincial or city prosecutor and their
2. Silence of the accused.
TIFF (Uncompressed) decompressor
are needed to see this picture.
assistants
3. Failure to request it within 5 days from the time 2. National and regional state prosecutors
he learns of the filing of the complaint or 3. Such other officers as may be authorized by
information in those instances where the law such as the COMELEC, Ombudsman and
accused is lawfully arrested without a warrant. PCGG
4. Judges of RTCs
Absence of preliminary investigation does not affect
the jurisdiction of the court or invalidate the No longer authorized to conduct PI:
information if no objection was raised by the accused. By implication, MTC judges in Manila and in
chartered cities have not been granted the authority

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to conduct PI, as the officers authorized to do so are even if the offender is a private individual or public
the prosecutors. officer or employee, and in the latter instance,
irrespective of whether the offense is committed in
TWO TYPES OF OFFENSES MAY BE FILED IN relation to his official duties or not. In other words, it
THE MTC FOR PRELIMINARY INVESTIGATION: is the nature of the offense, namely, an election
1. a case cognizable by the RTC may be filed offense as defined in the Omnibus Election Code and
with the MTC for PI; in other election laws, and not the personality of the
2. even if it is cognizable by the MTC because it offender that matters.
is an offense where the penalty prescribed by
law is at least 4 years 2 months and 1 day. THE OMBUDSMAN:
The power of the Ombudsman to make investigation
Regarding offenses falling within the original extends to any illegal act or omission of any public
jurisdiction of the Sandiganbayan: official, whether or not the same is committed in
Prosecutors or municipal trial court judges conducting relation to his office.
PI of offenses falling within the original jurisdiction of
the Sandiganbayan shall, after their conclusion, Preliminary investigation by the Ombudsman is
transmit the records and their resolutions to the limited to cases cognizable by the Sandiganbayan
Ombudsman or his deputy for appropriate action. and must be conducted pursuant to Rule 11 of the
Rules of Procedure of the Office of the Ombudsman.
Moreover, the prosecutor or judge cannot dismiss the
complaint without the prior written authority of the Section 4(d) of Administrative Order No. 07 disallows
Ombudsman or his deputy, nor can the prosecutor the filing of a motion to quash or dismiss a complaint
file an information with the Sandiganbayan without filed with the Ombudsman, except on the ground of
being deputized by, and without prior written authority lack of jurisdiction.
of, the Ombudsman or his deputy.
Which remedy may an aggrieved party avail of
Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001) against resolutions of the Ombudsman in
The Ombudsman is clothed with authority to criminal or non-administrative cases? The law is
conduct preliminary investigation and to prosecute all silent. Hence, appeal is not available as a remedy
criminal cases involving public officers and because the right to appeal is a statutory privilege
employees, not only those within the jurisdiction of and may be availed of only if there is a statute to that
the Sandiganbayan, but those within the jurisdiction effect. However, an aggrieved party is not without
of the regular courts as well. § 15 of RA 6770 remedy, as he can resort to the special civil action of
(Ombudsman Act of 1989) does not make any certiorari under Rule 65.
distinction. “Any illegal act or omission of any public
official” is broad enough to embrace any crime THE OMBUDSMAN DOES NOT HAVE THE
committed by a public officer or employee. Such FOLLOWING POWERS:
grant of primary jurisdiction over cases cognizable by 1. to prosecute before the Sandiganbayan any
the Sandiganbayan does not necessarily imply the impeachable officers with any offense which
exclusion from its jurisdiction of cases involving carries with it the penalty of removal from
public officers and employees cognizable by the office, or any penalty service of which would
other courts. amount to removal from office because by
constitutional mandate, they can only be
Roxas v. Vasquez, G.R. No. 114944 (2001) removed from office on impeachment for, and
In criminal prosecutions, a reinvestigation, like an conviction of, culpable violation of the
appeal, renders TIFFthe(Uncompressed)
entire
QuickTime™caseand a open for review,
Constitution, treason, bribery, graft and
regardless of whether a motion picture.
are needed to see
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this for reconsideration or corruption, other high crimes, or betrayal of
reinvestigation was sought. The Ombudsman should public trust
not be limited in its review. It is clear from R. A. 6770 2. to prosecute public officers or employees who
that the Ombudsman may motu propio conduct a have committed election offenses.
reinvestigation. 3. to file an information for an offense cognizable
by the regular courts.
ELECTION OFFENSES:
EFFECTS OF AN INCOMPLETE PRELIMINARY
The exclusive jurisdiction of the Comelec to
INVESTIGATION
investigate and prosecute election offenses inheres

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1. It does not warrant the quashal of the Filing of the complaint


information accompanied by the affidavits and
2. It does not affect the court’s jurisdiction or the supporting documents.
validity of the information.

Section 3. Procedure
Within 10 days after the filing, the
PROCEDURE investigating officer shall either
1. By reason of the abbreviated nature of dismiss or issue subpoena.
Preliminary Investigation, a dismissal of the
charges as a result thereof is not equivalent to
a judicial pronouncement of acquittal. If subpoena is issued, respondent
2. The accused or respondent in a criminal shall submit a counter-affidavit and
prosecution may avail himself of discovery other supporting documents within
remedies either during preliminary 10 days from receipt thereof.
investigation or when the information has
already been filed in court.
3. A motion to dismiss is now a prohibited
pleading during preliminary investigation. Hearing (optional). It shall be held
4. The respondent is now required to submit within 10 days from submission of
counter-affidavits and other supporting counter-affidavits or from the
documents relied upon by him for his defense. expiration of the period of their
5. The respondent now has the right to examine submission.
the evidence submitted by the complainant of
which he may not have been furnished and to
obtain copies thereof at his expense.
Resolution of investigating
prosecutor.

If respondent cannot be subpoenaed, or if


subpoenaed but does not submit his counter-affidavit
within 10 days, investigating officer shall resolve the
complaint based on the evidence presented by the
complainant.

RIGHTS OF RESPONDENT IN A PRELIMINARY


INVESTIGATION:
1. To submit counter-affidavit.
2. To examine the evidence submitted by the
complainant
3. To be present in the clarificatory hearing.

NOTE: The Rules does not require the presence of


the respondent in the Preliminary Investigation. What
QuickTime™ and a
is required is that he be given the opportunity to
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are needed to see this picture. controvert the evidence of the complainant by
submitting counter-affidavits.

Section 4. Resolution of investigating prosecutor


and its review

Resolution of investigating prosecutor and its


review
After having filed the information, the prosecutor is
called upon to prosecute the case in court. It has

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been said that at this stage, unlike judges who are that they were not included in the information
mandated to display cold neutrality in hearing cases, does not relieve them of criminal liability, and
the prosecutors are not required to divest themselves they can be subsequently prosecuted.
of their personal convictions and refrain from 2. The accused who has been charged with the
exhibiting partiality. But while he may strike hard offense is not allowed to escape punishment
blows, he is not at liberty to strike foul ones. merely because it develops in the course of the
trial that there were other guilty participants in
If there is probable the crime.
cause to hold If no 3. It does not vitiate the validity of the information.
respondent liable, probable Neither is the same a ground for a motion to
prepare resolution. cause quash.
exists,
dismiss the Role of Secretary Of Justice
case The Secretary of Justice is not prevented from
entertaining an appeal from the accused or from the
offended party even after the information has been
Within 5 days from resolution, filed and the trial court has arraigned the accused.
forward the record of the case to Section 4 of DOJ 223 should be construed as merely
1) provincial or city prosecutor; enjoining the Secretary of Justice to refrain, as far as
2) chief state prosecutor; 3) practicable, from entertaining a petition for review or
Ombudsman or his deputy, in appeal from the action of the prosecutor once the
cases cognizable by the complaint or information is filed in court. If the
Sandiganbayan in the exercise Secretary reverses the ruling of the prosecutor, the
of its original jurisdiction. latter has to file the necessary motion to dismiss the
complaint or information, the grant or denial of which
is subject to the discretion of the trial court.

The abovementioned officers EFFECT IF THE INFORMATION IS FILED BY


shall act on the resolution SOMEONE NOT AUTHORIZED BY LAW
within10 days from receipt The court does not acquire jurisdiction. The
thereof and shall immediately accused’s failure to assert lack of authority on the
inform the parties of such action. part of the prosecutor in filing the information does
not constitute a waiver thereof.

The prosecutor is required to resolve the complaint


HE SHALL CERTIFY UNDER OATH IN THE based on the evidence presented by the complainant
INFORMATION THAT: in the event that the respondent cannot be
1. he or an authorized officer personally subpoenaed or the respondent, if subpoenaed, does
examined the complainant and his witnesses; not submit a counter-affidavit within the 10-day
2. there is reasonable ground a crime has been period.
committed and the accused is probably guilty
thereof; Section 5. Resolution of investigating judge and
3. the accused was informed of the complaint and its review (DELETED)
the evidence against him; and
4. the accused was given an opportunity to RESOLUTION OF INVESTIGATING JUDGE AND
submit controverting evidence.
QuickTime™ and a
ITS REVIEW
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are needed to see this picture.
A.M. No. 05-8-26-SC:
No complaint or information may be filed or
dismissed by an investigating prosecutor without the All First Level Courts shall continue with the
prior written authority or approval of the provincial or preliminary investigation of cases pending with them
city prosecutor or the Ombudsman or his deputy. and terminate them not later than December 31,
2005.
EFFECTS OF EXCLUSION OF OTHER PERSONS
FROM THE INFORMATION Upon the effectivity of these amendments, First Level
1. If during the trial, evidence is shown that such Courts shall no longer accept new cases for
persons should have been charged, the fact

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preliminary investigation which fall under the should the trial court do upon the prosecutor’s
exclusive jurisdiction of courts of other levels. motion to dismiss? He must make his own
assessment of the evidence and not just rely on the
These amendments shall take effect on October 3, conclusion of the prosecutor; otherwise the court
2005 following their publication in a newspaper of becomes a mere rubber stamp.
general circulation not later than September 15,
2005. REINVESTIGATION:
Once the complaint or information is filed in court,
Section 6. When warrant of arrest may issue any motion for reinvestigation is addressed to the
sound discretion of the court.
WHEN WARRANT OF ARREST MAY ISSUE
If the judge finds probable cause, he shall issue a While the trial court judge has the power to order the
warrant of arrest or a commitment order if the reinvestigation of the case by the prosecutor, he may
accused had already been arrested and hold him for not, before the prosecutor concluded the
trial. If the judge is satisfied that there is no necessity reinvestigation, recall said order, set the case for
for placing the accused under custody, he may issue arraignment and trial, without gravely abusing his
summons instead of warrant of arrest. discretion.

Judges of the RTCs and inferior courts need not MUNICIPAL JUDGE MAY ISSUE ARREST
personally examine the complainant and his WARRANT BEFORE CONCLUSION OF
witnesses in the determination of probable cause for PRELIMINARY INVESTIGATION IF:
the issuance of the warrant of arrest. He is only 1. he finds that probable cause exists and
required to: 2. there is a necessity of placing respondent
1. Personally evaluate the report and supporting under immediate custody.
documents submitted by the prosecutor;
2. On the basis of the report, he may: IMPORTANT: The rule is now that the investigating
a. Dismiss judge’s power to order the arrest of the accused is
b. Issue a warrant limited to instances in which there is a necessity for
c. Require further affidavits placing him in custody in order not to frustrate the
ends of justice. Thus, even if the judge finds probable
INVALID: A warrant issued by the judge solely on the cause, he cannot, on such ground alone, issue a
basis of the report and recommendation of the warrant of arrest. He must further find there is a
investigating prosecutor, without personally necessity of placing the accused under immediate
determining the existence of probable cause by custody in order not to frustrate the ends of justice.
independently examining sufficient evidence
submitted by the parties during the Preliminary The investigating judge has no power to reduce
Investigation. or change the crime charged in order to justify
the grant of bail to the accused. The power
Effect of a finding of probable cause belongs to the prosecutor.
It merely binds over the suspect to stand trial. It is
not a pronouncement of guilt. After the conclusion of his PI, the judge has to
transmit to the provincial prosecutor his resolution
WHAT THE ACCUSED, WHO BELIEVES THAT and entire records of the case, regardless of whether
THERE IS NO PROBABLE CAUSE TO HOLD he finds a probable cause or sufficient ground to
HIM FOR TRIAL, MAY DO: issue a warrant of arrest.
1. to file with the trialQuickTime™
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to dismiss on
such ground or for
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determination of Section 7. When accused lawfully arrested
probable cause. without warrant
2. if the warrant of arrest has been issued, the
accused may file a motion to quash the arrest GENERAL RULE:
warrant or to recall the same on the ground of No complaint or information shall be filed for an
lack of probable cause. offense which is penalized by imprisonment of not
less than 4 years, 2 months and 1 day without PI.
Where an information has already been filed in
court, and the Secretary of Justice reversed the EXCEPTION: When the accused has been lawfully
prosecutor’s finding of probable cause, what arrested without warrant, in which case, an inquest

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must be conducted by an inquest prosecutor who will


determine whether his arrest without warrant is Section 8. Records
lawful. The inquest prosecutor may order the release
of the arrested person if he finds no sufficient ground An information or complaint filed in court shall be
to hold him without prejudice to conducting further supported by the affidavits and counter-affidavits of
investigation, or file complaint or information within the parties and their witnesses, together with the
the period specified in Art. 125 of the RPC. other supporting evidence and the resolution on the
case.
In case a person is arrested without a warrant, a
complaint or information may only be filed after an Records of the preliminary investigation shall NOT
inquest conducted in accordance with existing rules. automatically form part of the records of the case.
Courts are not compelled to take judicial notice
Provided: that in the absence or unavailability of an thereof. It must be introduced as evidence.
inquest prosecutor, the complaint may be filed by the
offended party or a peace officer directly with the Section 9. Cases not requiring preliminary
proper court on the basis of the affidavit of the investigation nor covered by the Rule on
offended party or arresting officer or person. Summary Procedure

Before the filing of a complaint or information, the Cases where the punishment does not exceed 4
person arrested without a warrant may ask for a years 2 months and 1 day.
preliminary investigation by a proper officer, but he
must sign a waiver of the provisions of Art. 125 of the PROCEDURE TO BE FOLLOWED:
RPC. a. Evaluate the evidence presented;
b. Conduct searching questions or answers;
If the accused allows himself to be arraigned without c. Require the submission of additional evidence.
asking for a preliminary investigation, he is deemed
to have waived the right to such PI. For cases under the Revised Rules on Summary
Procedure, no warrant shall be issued except where
When the complaint or information was filed without the accused fails to appear after being summoned.
PI, the accused may, within 5 days from the time he
learns of the filing of the information ask for a CONDITIONS FOR THE ISSUANCE OF WARRANT
preliminary investigation with the same right to OF ARREST:
adduce evidence in his favor in the manner 1. Must examine in writing and under oath the
prescribed in this Rule. complainant and his witnesses by searching
questions and answers.
NOTE: The 5 –day period is MANDATORY, failure to 2. Be satisfied that a probable cause exists.
file the motion within the said period amounts to a 3. That there is a need to place respondent under
waiver of the right to ask for preliminary investigation. immediate custody in order not to frustrate the
ends of justice.
Where the information was amended without a new
PI having been conducted, the 5-day period is
computed from the time the accused learns of the
filing of said amended information. RULE 113
ARREST
Where the trial court has granted a motion for
reinvestigation, it must hold in abeyance the
QuickTime™ and a Section 1. Definition of Arrest
arraignment andTIFFare
trial of
(Uncompressed) the accused until the
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prosecutor shall have conducted and made a report ARREST
on the result of the reinvestigation. It is the taking of a person into custody in order that
he may be bound to answer for the commission of an
Right to Bail Pending Preliminary Investigation offense.
A person lawfully arrested may post bail before the
filing of the information or even after the filing without
waiving his right to PI, provided that he asks for a PI
by the proper officer within the period fixed in the said
rule. (People v. Court of Appeals, May 29, 1995).

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The application of actual force, manual touching of reason for this is there is yet no evidence
the body, physical restraint or formal declaration of on record upon which he may determine
arrest is not required. Arrest includes submission to the existence of probable cause.
the custody of the person making the arrest.
A warrant of arrest has no expiry date. It remains
Section 2. Arrest; how made valid until arrest is effected or the warrant is lifted.

MODES OF ARREST: However, Sec. 4 of Rule 113 requires the head of the
1. Arrest by virtue of a warrant office who applied for warrant to execute the same
2. Arrest without a warrant under exceptional within 10 days from receipt thereof and for the
circumstances as may be provided by statute arresting officer assigned to execute the same to
submit, within 10 days from the expiration of the first
ESSENTIAL REQUISITES OF A VALID WARRANT 10-day period, a report to the judge who issued the
OF ARREST: warrant.
1. It must be issued upon probable cause which
must be determined personally by a judge after NOTE: The return mentioned in this section refers not
examination under oath or affirmation of the to the physical delivery of the very same copy of the
complainant and the witnesses he may process to the issuing court, but the report of the
produce. officer charged with its execution on the action taken
2. The warrant must particularly describe the by him thereon. (People v. Givera, 349 SCRA 513)
person to be seized.
Section 5. Arrest without a warrant; when lawful
A warrant of arrest has no expiry date. It remains
valid until arrest is effected or the warrant is lifted. LAWFUL WARRANTLESS ARREST:
1. When IN HIS PRESENCE, the person to be
Section 3. Duty of arresting officer arrested has committed, is actually committing
or is attempting to commit an offense (in
1. Arrest the accused flagrante delicto arrests).
2. Deliver him to the nearest police station or jail 2. When an offense has in fact been committed
without unnecessary delay and he has probable cause to believe based
on PERSONAL KNOWLEDGE of fact and
Section 4. Execution of warrant circumstance that the person to be arrested
has committed it (Doctrine of Hot Pursuit).
THE JUDGE ISSUES A WARRANT OF ARREST IN 3. When the person to be arrested is a prisoner
2 INSTANCES: who has escaped from a penal establishment
1. Upon the filing of the information by the or place where he is serving final judgment or
prosecutor. temporarily confined while his case is pending
• In issuing this kind of warrant, the judge or has escaped while being transferred from
does not personally examine the one confinement to another.
complainant and the witnesses he may 4. When a person who has been lawfully arrested
produce, but he merely evaluates escapes or is rescued (Sec. 13, Rule 113).
personally the report and supporting 5. By the bondsman for the purpose of
documents and other evidence adduced surrendering the accused (Sec. 23, Rule 113).
during the preliminary investigation and 6. Where the accused attempts to leave the
submitted to him by the prosecutor, and if country without permission of the court (Sec.
he finds probable QuickTime™cause
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this picture.
of the accused. NOTES:
2. Upon application of a peace officer. 1. In a citizen’s arrest, the person may be
• In this kind of warrant, the judge must arrested and searched of his body and of his
personally examine the applicant and the personal effects or belongings, for dangerous
witnesses he may produce, to find out weapons or anything which may be used as
whether there exists probable cause, proof of the commission of an offense, without
otherwise the warrant issued is null and need of a search warrant.
void. He must subject the complainant and
the witnesses to searching questions. The

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2. Sec. 5(a) refers to arrest in flagrante delicto 1. When the person is engaged in the
while Sec. 5(b) refers to hot pursuit. commission of an offense; or
2. Pursued immediately after its commission; or
3. Sec. 5(b) authorizes warrantless arrest “when 3. Has escaped, flees; or
an offense has in fact just been committed.” 4. Forcibly resists before the officer has
The word “just” implies immediacy in point of opportunity to so inform him; or
time. 5. When giving of such information will imperil the
arrest.
4. Delivery of the detained person to the proper
judicial authorities means the filing of the Section 9. Method of arrest by private person
complaint or information with the municipal trial
court or with the inquest fiscal or prosecutor When making an arrest, a private person shall inform
who shall then decide either to order the the person to be arrested of the intention to arrest
release of the detained person or to file the him and the cause of the arrest.
corresponding information in court.
EXCEPTIONS:
An accused who enters his plea of NOT guilty and 1. The person to be arrested is engaged in the
participates in the trial waives the illegality of the commission of an offense; or
arrest. Objection to the illegality must be raised 2. Pursued immediately after its commission; or
before arraignment, other wise it is deemed waived, 3. Has escaped, flees; or
as the accused had voluntarily submitted himself to 4. Forcibly resists before the officer has
the jurisdiction of the court. opportunity to so inform him; or
5. When giving of such information will imperil the
Section 6. Time of making arrest arrest.

It may be made on any day and at any time of the Section 10. Officer may summon assistance
day or night.
Arresting officer may orally summon as many
Section 7. Method of Arrest by officer persons as he deems necessary to assist him in
by virtue of warrant effecting the arrest.

When making an arrest by virtue of a warrant the NOTE: This rule does not cover a private individual
officer shall inform the person to be arrested of the making an arrest.
cause of the arrest and the fact that a warrant has
been issued for his arrest. Section 11. Right of officer to break into building
or enclosure
EXCEPTIONS:
1. when he flees; or REQUISITES BEFORE AN OFFICER CAN BREAK
2. forcibly resists before the officer has INTO A BUILDING OR ENCLOSURE TO MAKE AN
opportunity to so inform him; or ARREST:
3. when the giving of such information will imperil 1. That the person to be arrested is or is
his arrest. reasonably believed to be in the said building;
2. That he has announced his authority and
The officer need not have the warrant in his purpose for entering therein;
possession at the time of the arrest but after the 3. That he has requested and been denied
arrest, if the person arrested so requires, the warrant
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admittance.
shall be shown toTIFF
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NOTE: Rule is applicable both where there is a
Section 8. Method of arrest by officer without a warrant and where there is a valid arrest without a
warrant warrant.

When making an arrest by virtue of a warrant the Section 12. Right to break out of the building or
officer shall inform the person to be arrested his enclosure to effect release
authority and the cause of the arrest.

EXCEPTIONS:

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An officer making an arrest who has entered a • Does not apply during in-custody
building or enclosure may break out therefrom when investigation, nor can it prevail over the
necessary to liberate himself. constitutional right of the accused to be
presumed innocent.
Section 13. Arrest after escape or rescue
4. The arresting officer may be held civilly liable
If a person arrested escapes or is rescued, any for damages under Art. 32 of the Civil Code.
person may immediately pursue or retake him without The very nature of Art. 32 is that the wrong
a warrant at any time and in any place within the may be civil or criminal. It is not necessary
Philippines. that there should be malice or bad faith.

Section 14. Right of an attorney or relative to visit 5. On Civil Procedure:


the person arrested • Section 20 Rule 14 of the 1997 Rules of
Civil Procedure provides in part that the
The attorney of the person arrested have the right to inclusion in a motion to dismiss of other
visit and confer privately with such person in jail or grounds aside from lack of jurisdiction over
any place of custody at any hour of the day or night. the person of the defendant shall not be
deemed a voluntary appearance. Section 8
RA 7438 defined the RIGHTS OF PERSONS Rule 15 provides that subject to the
ARRESTED, DETAINED OR UNDER CUSTODIAL provisions of Section 1 Rule 9, a motion
INVESTIGATION with the penalties for violation attacking a pleading, order, judgment or
thereof. proceeding shall include all objections then
available, and all objections not so included
1. Custodial investigation shall be deemed waived. These changes in
• Involves any questioning initiated by law the 1997 Rules of Civil Procedure are
enforcement officers after a person has applicable to criminal cases as Section 3
been taken into custody or otherwise Rule 1 thereof provides that “these rules
deprived of his freedom of action in any shall govern the procedure to be observed
significant way. in actions, civil or criminal, and special
• It is only after investigation ceases to be a proceedings.” Moreover, the omnibus
general inquiry into an unsolved crime and motion rule applies to motions to quash.
begins to focus on a particular suspect, the
suspect is taken into custody, and the 6. Section 26 of Rule 114 of the New Rules of
police carries out a process of Criminal Procedure provides that bail is not a
interrogations that lends itself to eliciting bar to objection on illegal arrest, lack of or
incriminating statements that the rule irregular preliminary investigation. This is
begins to operate. an abandonment of the Cojuangco, Jr. v.
• Embraced in custodial investigation: Sandiganbayan ruling.
¾ invited for questioning
¾ re-enactment
• Not embraced in custodial investigation:
¾ police line-up RULE 114
¾ ultraviolet ray examination BAIL
¾ normal audit examination by the COA of
the accountability of a public officer Section 1. Bail defined
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2. When the threat or promise was made by, or in
are needed to see this picture. BAIL
the presence of, a person in authority, who It is the security given for the release of a person in
has, OR is supposed by the accused to have custody of the law, furnished by him or a bondsman,
power or authority to fulfill the threat or to guarantee his appearance before any court as
promise, the confession of the accused is required under the conditions hereinafter specified.
inadmissible. Bail may be given in the form of a corporate surety,
property bond, cash deposit or recognizance.
3. Presumption of regularity in the performance
of duties:

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PURPOSES OF A BAIL: REQUIRING ARRAIGNMENT BEFORE GRANT OF


1. to honor the presumption of innocence until his BAIL IS NOT VALID BECAUSE:
guilt is proven beyond reasonable doubt a. The trial court could ensure the presence of
2. to enable him to prepare his defense without the accuse at the arraignment precisely by
being subject to punishment prior to conviction. granting bail and ordering his presence at any
stage of the proceedings such as arraignment
FORMS OF BAIL: (Sec. 2[b], Rule 114);
1. corporate surety b. The accused will be placed in a position where
2. property bond has to choose between filing a motion to
3. cash deposit quash and thus delay his release on bail and
4. recognizance foregoing the filing of a motion to quash so that
he can be arraigned at once and thereafter be
Bail Bond vs. Recognizance released on bail. (Lavides v. Court of Appeals,
BAIL BOND RECOGNIZANCE 324 SCRA 321)
An obligation under seal An obligation of record,
given by the accused entered into before some Section 2. Condition of the Bail; Requirements
with one or more sureties court or magistrate duly
and made payable to the authorized to take it with THE SURETY’S LIABILITY COVERS ALL THESE 3
proper officer with the the condition to do some STAGES:
condition to be void upon particular act. a. trial
performance by the b. promulgation
accused of such acts as c. the execution of the sentence.
he may legally be require
to perform. Unless the court directs otherwise, the bail bond
posted by an accused remains in force at all stages
NOTE: A person is in the custody of law when he has of the case until its final determination.
been arrested or otherwise deprived of his freedom
or when he has voluntarily submitted himself to the The accused shall appear before the proper court
jurisdiction of the court by surrendering to the proper whenever required by the court or rules.
authorities.
Failure of the accused to appear at the trial without
All persons, except those charged with offenses justification despite due notice shall be deemed a
punishable by reclusion perpetua when evidence of waiver of his right to be present thereat. The trial
guilt is strong shall, before conviction, be bailable. may proceed in absentia.

PROSECUTION WITNESSES MAY ALSO BE The bondsman shall surrender the accused to court
REQUIRED TO POST BAIL TO ENSURE THEIR for execution of the final judgment.
APPEARANCE AT THE TRIAL OF THE CASE
WHERE: If the accused presents his notice of appeal, the trial
a. There is a substitution of information (Sec. 4, court will order the accused to be taken into custody
Rule 110) in the absence of a new bail bond on appeal duly
b. Where the court believes that a material approved by the court. If the accused does not
witness may not appear at the trial. (Sec. 14, appeal, the bondsman must produce the accused on
Rule 119) the 15th day from promulgation of sentence for
service of sentence.
Upon assumption of QuickTime™
the obligation
and a of bail, the
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sureties become in are
law theto see
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this picture. Yap v. CA and the People, G.R. No. 141529 (2001)
The prohibition against requiring excessive bail is
As bail is intended to obtain or secure one’s enshrined in the Constitution. The obvious rationale
provisional liberty, the same cannot be posted before is that imposing bail in an excessive amount could
custody over him has been acquired by the court. render meaningless the right to bail. The court has
wide latitude in fixing the amount of bail. Where it
fears that the accused may jump bail, it is certainly
not precluded from installing devices to ensure
against the same. Options may include increasing the
bail bond to an appropriate level, or requiring the

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person to report periodically to the court and to make speedy, lest the purpose for which it is available is
an accounting of his movements. Although an rendered nugatory.
increase in the amount of bail while the case is on
appeal may be meritorious, the SC found that the Right to bail may be waived.
setting of the amount at P5.5M is unreasonable,
excessive, and constitutes an effective denial of A’s BAIL IN COURT-MARTIAL OFFENSES:
right to bail. The right to bail of an accused military personnel
The Bail Bond Guide, a circular of the triable by courts-martial does not exist, as an
Department of Justice for the guidance of state exception to the general rule that an accused is
prosecutors, although technically not binding upon entitled to bail except in a capital offense where the
the courts, “merits attention, being in a sense an evidence of guilt is strong.
expression of policy of the Executive Branch, through
the DOJ, in the enforcement of criminal laws.” Thus, RATIONALE: The unique structure of the military
courts are advised that they must not only be aware justifies exempting military men from the
but should also consider the Bail Bond Guide due to constitutional coverage on the right to bail.
its significance in the administration of criminal
justice. This notwithstanding, the Court is not The right to bail is not available to military personnel
precluded from imposing in A’s case an amount or officer charged with a violation of the Articles of
higher than P40T (based on the Bail Bond Guide) War. (Aswat v. Galido, 204 SCRA 205)
where it perceives that an appropriate increase is
dictated by the circumstances. Notice of hearing required:
Whether bail is a matter of right or of discretion,
Section 3. No release or transfer except on court reasonable notice of hearing is required to be given
order or bail to the prosecutor or fiscal or at least he must be
asked for his recommendation because in fixing the
No person under detention by legal process shall be amount of bail, the judge is required to take into
released or transferred except upon order of the court account a number of factors such as the applicant’s
or when he is admitted to bail. character and reputation, forfeiture of other bonds or
whether he is a fugitive from justice.
Section 4. Bail, a matter of right; exception
Hearing is not required if bail is recommended by
WHEN BAIL IS A MATTER OF RIGHT: prosecution and it is a matter of right.
1. before or after conviction by the MTC
2. before conviction, for all offenses punishable Summary of the evidence for the prosecution
by lower than reclusion perpetua The court’s order granting or refusing bail must
¾ prosecution does not have the right to contain a summary of the evidence for the
oppose or to present evidence for its denial. prosecution, otherwise the order granting or denying
bail may be invalidated because the summary of the
WHEN BAIL IS A MATTER OF DISCRETION: evidence for the prosecution which contains the
1. before conviction, in offenses punishable by judge’s evaluation of the evidence may be
death, reclusion perpetua or life imprisonment considered as an aspect of procedural due process
2. after conviction by the RTC of a non-capital for both the prosecution and the defense.
offense
¾ prosecution is entitled to present evidence It would be premature, not to say incongruous, to file
for its denial. a petition for bail for someone whose freedom has
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People v. Singh, et. are al.,
neededG.R. No.
to see this 129782 (2001)
picture.

In hearing the petition for bail, the prosecution Section 5. Bail, when discretionary
has the burden of showing that the evidence of guilt
is strong pursuant to § 8 Rule 114. In bail 1. Not entitled to bail:
proceedings, the prosecution must be given ample • An accused who has been convicted of an
opportunity to show that the evidence of guilt is offense which carries a penalty of more
strong. While the proceeding is conducted as a than 20 years is not entitled to bail during
regular trial, it must be limited to the determination of the pendency of his appeal.
the bailability of the accused. It should be brief and • An accused who is convicted of a capital
offense is no longer entitled to bail on

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appeal since his conviction imports that the The capital nature of an offense is determined by the
evidence of guilt is strong. penalty prescribed by law, and not by the penalty that
may be imposed after trial and on the basis of the
2. Trial court may grant bail before appeal is evidence adduced and the presence of aggravating
perfected or mitigating circumstance.
• Whether bail is a matter of right or
discretion, the trial court may grant bail and NOTE: Republic Act No. 9346 entitled
approve the amount of the bail bond before ”An Act Prohibiting the Imposition of Death Penalty in
the accused has perfected his appeal, the Philippines” was enacted on June 24, 2006
appeal being perfected upon filing of a repealing R.A. No. 8177 and R. A. No. 7659 and
written notice of appeal and furnishing the abolishing the death penalty.
adverse party copy thereof.
• However if the decision of the trial court Section 7. Capital offense or an offense
convicting the accused changed the nature punishable by reclusion perpetua or life
of the offense from non-bailable to bailable, imprisonment or life imprisonment
the application for bail can only be filed with
and resolved by the appellate court. CONVICTION
• Even if there is no notice of appeal, if the This refers to conviction by the trial court, which has
decision of the TC convicting the accused not become final, as the accused still has the right to
changed the nature of the offense from appeal. After conviction by the trial court, the
non-bailable to bailable, the application for accused convicted of a capital offense is no longer
bail can only be filed with and resolved by entitled to bail, and can only be released when the
the appellate court. conviction is reversed by the appellate court. Section
13, Article III of the 1987 Constitution
3. After appeal is perfected, the trial court
loses jurisdiction to grant bail and to Section 8. Burden of proof in bail application
approve bail bond.
• However, the accused may apply for bail or Prosecution has burden of proof
provisional liberty with the appellate court. At the hearing of an application for bail filed by a
person in custody for the commission of an offense
IF THE PENALTY IMPOSED BY THE TRIAL punishable by reclusion perpetua or life
COURT IS IMPRISONMENT EXCEEDING 6 imprisonment, the prosecution has the burden of
YEARS, THE ACCUSED SHALL BE DENIED BAIL showing that evidence of guilt is strong.
OR HIS BAIL BE CANCELLED UPON A SHOWING
BY THE PROSECUTION OF THE FOLLOWING: EVIDENCE OF GUILT in the Constitution and the
a. Recidivism, quasi-recidivist or habitual Rules refers to a finding of innocence or culpability,
delinquent or has committed the crime regardless of the modifying circumstances.
aggravated by the circumstance of reiteration;
b. That he has previously escaped from legal Regarding Minors Charged with a Capital
confinement, evaded sentence or violated the Offense
condition of his bail without valid justification; If the person charged with a capital offense, such as
c. That he committed the offense while under murder, admittedly a minor, which would entitle him,
probation, parole or conditional pardon; if convicted, to a penalty next lower than that
d. That the circumstances of his case indicate the prescribed by law, he is entitled to bail regardless of
probability of flight if released on bail; or whether the evidence of guilt is strong. The reason
e. That there is undue riskandthat
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another crime during
are needed the
to see this picture.pendency of the
sentence has a particularly strong temptation to flee.
appeal. This reason does not hold where the accused has
been established without objection to be minor who
Section 6. Capital offense, defined by law cannot be sentenced to death.

CAPITAL OFFENSE Duty of judge to conduct hearing


It is an offense which, under the law existing at the Where the prosecution agrees with the accused’s
time of its commission and of the application for application for bail or foregoes the introduction of
admission to bail may be punished with death. evidence, the court must nonetheless set the
application for hearing. It is mandatory for the judge

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to conduct a hearing and ask searching and Section 12. Qualifications of sureties in property
clarificatory questions for the purpose of determining bond
the existence of strong evidence against the
accused; and the order, after such hearing, should QUALIFICATIONS:
make a finding that the evidence against the accused a. Each must be a resident owner of real property
is strong. within the Philippines;
b. Where there is only one surety, his real estate
Section 9. Amount of bail; guidelines must be worth at least the amount of the
undertaking;
THE JUDGE SHALL FIX A REASONABLE c. If there are two or more sureties, each may
AMOUNT OF BAIL CONSIDERING PRIMARILY, justify in an amount less than that expressed
BUT NOT LIMITED TO THE FOLLOWING in the undertaking but the aggregate of the
FACTORS: justified sums be equivalent to the whole
amount of the bail demanded.
a. Financial ability of the accused to give bail; d. Every surety must be worth the amount
b. Nature and circumstances of the offense; specified in his own undertaking over and
c. Penalty for the offense charged; above all just debts, obligations and properties
d. Character and reputation of the accused; exempt from execution.
e. Age and health of the accused;
f. Weight of the evidence against the accused; Section 13. Justification of Sureties
g. Probability of the accused appearing at the
trial; BEFORE ACCEPTING A SURETY OR BAIL BOND,
h. Forfeiture of other bail; THE FOLLOWING REQUISITES MUST BE
i. The fact that the accused was a fugitive from COMPLIED WITH:
justice when arrested; and a. photographs of the accused;
j. Pendency of other cases where the accused is b. affidavit of justification;
on bail. c. clearance from the Supreme Court;
d. certificate of compliance with Circular No. 66
Section 10. Corporate Surety dated September 19, 1996;
e. authority of the agent; and
Any domestic or foreign corporation, licensed as f. current certificate of authority issued by the
surety in accordance with law and currently Insurance Commissioner with a financial
authorized to act as such, may provide bail by bond statement showing the maximum underwriting
subscribed jointly by the accused and an officer of capacity of the surety company.
the corporation duly authorized by the board of
directors. NOTE: The purpose of requiring the affidavit of
qualification by the surety before the judge is to
The term of the bail bond is not dependent upon enable the latter to determine whether or not the
faithful payment of the bond premium. surety possesses the qualification to act as such,
especially his financial worth as required in the
Section 11. Property bond; how posted previous section.

PROPERTY BOND Section 14. Deposit of cash as bail


It is an undertaking constituted as a lien on the real
property given as security for the amount of the bail. The accused or any person acting on his behalf may
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deposit cash with the nearest collector of internal
Within 10 days after the approval of the bond, the
TIFF (Uncompressed) decompressor
are needed to see this picture.
revenue or provincial, city or municipal treasurer the
accused shall annotate the lien on the certificate of amount of bail fixed by the court or recommended by
title with the Registry of Deeds and on the the prosecutor who investigated or filed the case.
corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned. The trial judge has no authority to strictly require that
only cash bond, instead of a surety bond, be
Failure to do so shall be sufficient cause for deposited for the provisional release of the accused.
cancellation of the property bond and his re-arrest
and detention. Section 15. Recognizance

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one, in which case he may be released on his


RECOGNIZANCE own recognizance.
It is an obligation of record, entered into before some 3. In case of a youthful offender held for physical
court or officer authorized to take it with a condition to or mental examination, trial or appeal, if unable
do some particular act, the most usual condition in to furnish bail and under the circumstances
criminal cases being the appearance of the accused provided by P.D. 603, as amended.
for trial. 4. A person who has been in custody for a period
equal to or more than the possible maximum
The release of the accused may be on his own imprisonment prescribed for the offense
recognizance, which means that he has become his charged, without prejudice to the continuation
own jailer. It may be to a responsible person. of the trial or the proceedings on appeal.
Persons charged with offenses falling under the Rule 5. A person accused of an offense with a
on Summary Procedure may be released either “on maximum penalty of destierro shall be
bail or on recognizance of a responsible citizen released after 30 days of preventive
acceptable to the court.” imprisonment.

Espiritu v. Jovellanos, A.M. No. MTJ-97-1139 Reduced Bail


(1997) A person in custody for a period to or more than the
THE FOLLOWING ARE CASES WHERE THE minimum of the principal penalty prescribed for the
COURT MAY ORDER THE RELEASE ON offense charged, without application of the
RECOGNIZANCE OF ANY PERSON UNDER Indeterminate Sentence Law or any modifying
DETENTION circumstance, shall be released on a reduced bail or
a. when the offense charged is for violation of an on his own recognizance at the discretion of the
ordinance, a light, or a criminal offense, the court.
imposable penalty of which does not exceed 6
months imprisonment and/or P2000 fine, under Section 17. Bail, where filed
the circumstances provided in RA No. 6036
b. where a person has been in custody for a WHERE BAIL IS FILED:
period equal to or more than the minimum of 1. May be filed with the court where the case is
the imposable principal penalty, without pending; or
application of the Indeterminate Sentence Law 2. In the absence or unavailability of the judge
or any modifying circumstance, in which case thereof, with the regional trial judge or any
the court, in its discretion, may allow his inferior court judge in the province, city or
release on his own recognizance municipality;
c. where the accused has applied for probation, 3. If the accused was arrested in a province, city
pending resolution of the case but no bail was or municipality other than the case is pending,
filed or the accused is incapable of filing one bail may be filed with the RTC of the said place
d. in case of a youthful offender held for physical or if no judge is available, with any inferior
and mental examination, trial, or appeal, if he court judge therein;
is unable to furnish bail and under 4. Where bail is a matter of discretion or the
circumstances envisaged in PD No. 603 as accused seeks to be released on
amended. recognizance, it may only be filed in the court
where the case is pending, whether on trial or
Section 16. Bail, when not required; reduced bail appeal;
or recognizance 5. Any person not yet charged in court may apply
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for bail with any court in the province, city or
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BAIL IS NOT REQUIRED
are needed to see WHEN
this picture. THE LAW OR
municipality where he is held;
RULES PROVIDE: 6. If the accused was convicted and the nature of
1. Offense charged is violation of an ordinance, the offense changed from non-bailable to
light felony or criminal offense the imposable bailable, the application can be made with and
penalty does not exceed 6 months of resolved by the appellate court.
imprisonment and/or fine of P2,000 under RA
6036. A judge presiding in one branch has no power to
2. Where the accused applied for probation and grant bail to an accused who is being tried in another
before the same has been resolved but no bail branch presided by another judge who is not absent
was filed or the accused is incapable of filing or unavailable, and his act of releasing him on bail

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constitutes ignorance of law which subjects him to • satisfactory explanations for the non-
disciplinary sanction. appearance of the accused when first
required by the trial court to appear.
Section 18. Notice of application to prosecutor ¾ Compliance with the first requisite
without meeting the second requisite will
Court to give reasonable notice of the hearing to the not justify non-forfeiture of a bail bond or
prosecutor or require him to submit his reduction of liability.
recommendation. • Failure to PRODUCE the body of the
principal or give a reason for his non-
Section 19. Release on bail production and EXPLAIN why the accused
did not appear before the court when first
Upon approval of the bail by the judge, the accused required to do so, the court shall render a
must be discharged. judgment against the bondsmen, jointly and
severally for the amount of the bail.
An officer who fails or refuses to release him from • The period of 30 days cannot be shortened
detention notwithstanding the approval by the proper by the court but may be extended for good
court of his bail bond may be held liable under Art. cause shown.
126 if the Revised Penal Code for delaying release.
Order of Forfeiture vs. Order of Confiscation
Section 20. Increase or reduction of bail ORDER OF ORDER OF
FORFEITURE CONFISCATION
The Court may, upon good cause, either increase or Conditional and Not independent of the
reduce the amount of the bail. interlocutory. It is not order of forfeiture. It is a
appealable judgment ultimately
If the accused does not give the increased amount of determining the liability of
bail within a reasonable time will be committed to the surety thereunder
custody. and therefore final.
Execution may issue at
NOTE: Where the offense is bailable, the mere once.
probability that the accused will escape or if he had
previously escaped while under detention does not
Section 22. Cancellation of bail
deprive him of his right to bail. The remedy is to
increase the amount of bail, provided the amount is
BAIL IS CANCELLED:
not excessive. (Sy Guan v. Amparo, 79 Phil 670)
1. Upon application of the bondsmen with due
notice to the prosecutor, upon surrender of the
Section 21. Forfeiture of bail
accused or proof of his death;
2. Upon acquittal of the accused;
1. When bail bond forfeited:
3. Upon dismissal of the case; or
• only in instances where the presence of the 4. Execution of judgment of conviction.
accused is specifically required by the court
• Without prejudice to any liability on the bail.
or the Rules of Court and, despite due
notice to the bondsmen to produce him
Section 23. Arrest of accused out on bail
before the court on a given date, the
accused fails to appear in person as so
The bondsmen who put the bail bond for the accused
required.
become the jailers and they or the police officer to
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whom authority is endorsed may arrest the accused
2. To justify TIFF
exemption
are needed to see from
(Uncompressed) decompressor
liability on a bail
this picture.
for the purpose of surrendering him to the court. The
bond or reduction thereof, two requisites must
accused cannot leave the country without the
be satisfied:
permission of the bondsmen and the court.
• production or surrender of the person of the
accused within 30 days from notice of the HOW SURETIES MAY BE RELIEVED FROM
order of the court to produce the body of RESPONSIBILITY OVER THE ACCUSED:
the accused or giving reasons for its non- 1. Arrest the principal and deliver him to the
production proper authorities.

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2. They may cause the arrest of the accused to 2. The legality of the warrant issued therefore; or
be made by any police officer or other person 3. From assailing the regularity or questioning
of suitable age or discretion. the absence of a preliminary investigation of
3. By endorsing the authority to arrest upon a the charge against him.
certified copy of the undertaking and delivering
it to such officer or person. • Provided that the accused raises them before
entering his plea.
An accused released on bail may be re-arrested • The court shall observe the matter as early as
without the necessity of a warrant if he attempts to practicable, but not later than the start of the
depart from the Philippines without permission of the trial of the case.
court where the case is pending.

HOLD-DEPARTURE ORDERS
Supreme Court Circular No. 39-97 dated June 19, RULE 115
1997 limits the authority to issue hold departure RIGHTS OF ACCUSED
orders to the RTCs in criminal cases within their
exclusive jurisdiction. Consequently, MTC judges The rule enumerates the rights of a person accused
have no authority to issue hold-departure orders, of an offense, which are both constitutional as well as
following the maxim, express mention implies the statutory, save the right to appeal which is purely
exclusion. Neither does he have authority to cancel statutory in character
one which he issued.
DUE PROCESS
Section 24. No bail after final judgment; exception 1. Substantive – considers the intrinsic validity
of the law
GENERAL RULE: 2. Procedural – based on the principle that a
No bail shall be allowed after the judgment has court hears before it condemns. Requirement
become final, as what is left is for him to serve the of notice and hearing.
sentence.
Section 1. Rights of accused at trial
EXCEPTION: When he has applied for probation
before commencing to serve sentence, the penalty A. TO BE PRESUMED INNOCENT
and the offense being within the purview of the
Probation Law. The application for probation must be In all criminal prosecutions, the accused is presumed
filed within the period of perfecting an appeal. Such innocent until the contrary is proved beyond
filing operates as a waiver of the right to appeal. reasonable doubt.

EXCEPTION TO THE EXCEPTION: The accused The conviction should be based on the strength of
shall not be allowed to be released on bail after he the prosecution and not on the weakness of the
has commenced to serve his sentence. defense, an accusation is not synonymous with guilt.

Section 25. Court supervision of detainees REASONABLE DOUBT


It is the doubt engendered by an investigation of the
The court shall exercise supervision over all persons whole proof and inability, after such investigation, to
in custody for the purpose of eliminating unnecessary let the mind rest easy upon the certainty of guilt.
detention. The executive judges of RTCs shall Absolute certainty of guilt is not demanded by the law
conduct monthly personal inspections of provincial,
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city or municipal TIFF
jails and the
(Uncompressed) prisoners within their
decompressor
are needed to see this picture. is required as to every proposition of proof requisite
respective jurisdictions. to constitute the offense.

Section 26. Bail is not a bar to objections on REASON: the slightest possibility of an innocent man
illegal arrest, lack of or irregular preliminary being convicted for an offense he has not committed
investigation for an offense he has not committed would be far
more dreaded than letting a guilty person go
AN APPLICATION FOR ADMISSION TO BAIL unpunished or for a crime he may have perpetrated.
SHALL NOT BAR THE ACCUSED FROM:
1. Challenging the validity of his arrest; or EQUIPOSE RULE

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where the evidence of the parties in a criminal case 1. During arraignment (Sec. 1b, Rule 116)
are evenly balanced, the constitutional presumption 2. Promulgation of judgment EXCEPT when
of innocence should tilt in favor of the accused who the conviction is for a light offense, in which
must be acquitted. case, it may be pronounced in the presence of
his counsel or representative.
EXCEPTIONS TO THE PRESUMPTION OF 3. when ordered by the court for purposes of
INNOCENCE identification

People v. Mingoa, 92 Phil 856 (1953) Not applicable in the SC and CA


The legislature may enact that when certain facts The law securing to an accused person the right to
have been proved, they shall be prima facie evidence be present at every stage at the proceedings has no
of the existence of guilt of the accused and shift the application to the proceedings before the CA and the
burden of proof provided there be a rational SC nor to the entry and promulgation of the
connection between the facts proved and the ultimate judgments. The defendant need not be present
fact presumed so that the inference of the one from during the hearing of the appeal. (Sec. 9, Rule 124)
proof of the other is not unreasonable and arbitrary
experience. Aquino, Jr. v. Military Commission, 63 SCRA 546
(1975)
In cases of self defense, the person who invokes The accused may waive his right to be present
self defense is presumed guilty. In this case a during the trial. However, his presence may be
REVERSE TRIAL will be held. compelled when he is to be identified.

B. TO BE INFORMED OF THE NATURE AND THE EFFECTS OF WAIVER OF THE RIGHT TO


CAUSE OF THE ACCUSATION AGAINST HIM APPEAR BY THE ACCUSED
1. waiver of the right to present evidence
The right requires that the information should state 2. prosecution can present evidence if the
the facts and the circumstances constituting the accused fails to appear
crime charged in such a way that a person of 3. the court can decide without the evidence of
common understanding may easily comprehend and the accused
be informed of what it is about.
Trial in Absencia
People v. Ortega, 276 SCRA 166 (2003) It is important to state that the provision of the
An accused may not be convicted of an offense Constitution authorizing the trial in absentia of the
unless it is clearly charged in the complaint or accused in case of his non-appearance AFTER
information. To convict him of an offense other than ARRAIGNMENT despite due notice simply means
that charged in the complaint or information would be that he thereby waives his right to meet the witnesses
a violation of this constitutional right. face to face, among others.

When a person is charged in a complaint with a crime Such waiver of a right of the accused does not mean
and the evidence does not show that he is guilty a release of the accused from his obligation under
thereof, but does show that he is guilty of some other bond to appear in court when so required. The
crime or a lesser offense, the court may sentence accused may waive his right but not his duty or
him for the lesser offense, PROVIDED that the lesser obligation to the court.
offense is a cognate offense and is included in the
complaint filed in court. REQUIREMENTS FOR TRIAL IN ABSENTIA
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The qualifying or aggravating circumstances must be
are needed to see this picture. 2. he has been duly notified of the trial
ALLEGED and PROVED in order to be considered by 3. his failure to appear is unjustified
the court.
Gimenez v. Nazareno, 160 SCRA 1 (1988)
C. TO BE PRESENT AND DEFEND IN PERSON an escapee who has been duly tried in absentia
AND BY COUSEL AT EVERY STAGE OF THE waives his right to present evidence on his own
PROCEEDING behalf and to confront and cross-examine witnesses
that have testified against him.
PRESENCE OF THE ACCUSED IS REQUIRED

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D. RIGHT TO COUNSEL The right to counsel is NOT ABSOLUTE, it subject to


being exercised within a reasonable time and manner
Importance: Without the aid of counsel, a person (Laranaga v. CA, 281 SCRA 254) he cannot insist on
may be convicted, not because he is guilty but one that he cannot afford, one who is not a member
because he does not know how to establish his of the bar and one who declines for a valid reason
innocence. such as conflict of interest. (People v. Servo, 274
SCRA 553)
The right covers the period beginning from the
custodial investigation, well into the rendition of the Waiver of Right to Counsel
judgment and even on appeal. (People v. Serzo, Jr. This is when the accused voluntarily submits himself
274 SCRA 553) the right to counsel can be invoked to the jurisdiction of the court and proceeds with his
at any stage of the proceedings, even on appeal defense.

CUSTODIAL INVESTIGATION Jurisprudence provides that the defendant cannot


It is the questioning by law enforcement officers of a raise the question of his right to have an attorney the
SUSPECT taken into custody or otherwise deprived first time on appeal.
of his freedom of action in a significant way. it
includes the practice of issuing an “invitation” to a The accused may defend himself in person only if the
person who is investigated in connection with an court is convinced that he can properly protect his
offense he is suspected to have committed. (RA rights even without the assistance of counsel.
7437)
US v. Escalante, 36 Phil. 743 (1917)
People v. Morial, 363 SCRA 96 (2001) If the question is not raised in the trial court, the
If during the investigation the assisting lawyer prosecution may go to trial.
leaves, comes and goes, the statement signed by the
accused is still inadmissible because the lawyer People v. Nang Kay, 88 Phil. 515 (1951)
should assist his client from the time the confessant the question will not be considered in the
answers the first question asked by the investigating appellate court for the first time when the accused
officer until the signing of the extrajudicial confession. fails to raise it in the lower court..

The right to counsel and the right to remain silent do Delgado v. CA, 145 SCRA 357 (1986)
not cease even after a criminal complaint/information The mistake of counsel will bind his client. The
has already been filed against the accused AS LONG only exception is when the counsel represents
AS he is still in custody. himself as a lawyer and is not one because in that
case the accused is denied of his right to counsel and
The duty of the court to appoint a counsel de oficio due process.
when the accused has no legal counsel of choice and
a desire to employ one is MANDATORY only at the
E. TO TESTIFY AS A WITNESS IN HIS OWN
time of ARRAIGNMENT (sec. 6, Rule 116)
BEHALF
DIFFERENCE BETWEEN THE RIGHT TO
COUNSEL DURING CUSTODIAL INVESTIGATION People v. Santiago, 46 Phil 734 (1922)
ANF DURING THE TRIAL A denial of the defendant’s right to testify on his
A. During trial – the right to counsel means own behalf would constitute an unjustifiable violation
EFFECTIVE counsel. Counsel is here not to of his constitutional right.
prevent the accused from
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defend the accused.
are needed to see this picture. If the accused testifies, he may be cross-examined
B. Custodial Investigation – stricter ONLY on matters covered by his direct examination,
requirement, it requires the presence of unlike an ordinary witness who can be cross-
competent and independent counsel who is examined as to any matter stated in the direct
preferably the choice of the accused. Since a examination or connected therewith (Section 6, Rule
custodial investigation is not done in public 132). His failure to testify will not be taken against
there is a danger that confessions can be him but his failure to present evidence in his behalf
exacted against the will of the accused. shall be taken against him (US v. Bay, 97 SCRA
495).

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The testimony of an accused who testifies on his own he will give or the evidence that he will produce
behalf but refuses to be cross examined will not be would have the tendency to incriminate him for the
given weight and will have no probative value crime that he was charged. But he MAY refuse to
because the prosecution will not be able to test its answer any question incriminating him for an offense
credibility. distinct from that for which he is charged.

F. RIGHT AGAINST SELF-INCRIMINATION RIGHTS OF THE ACCUSED IN THE MATTER OF


TESTIFYING OF PRODUCING EVIDENCE
The scope of this right covers only testimonial Before the case:
compulsion only and not the compulsion to produce 1. Right to be informed
real and physical evidence using the body of the 2. Right to remain silent and to counsel
accused. 3. right not to be subjected to force or violence or
any other means which vitiate free will
DNA TESTING is not covered in the right against 4. right to have the evidence obtained in violation
self-incrimination of these rights rejected
After the case is filed in court:
RATIONALE FOR PROTECTING THE RIGHT 1. right to refuse to be a witness
AGAINST SELF INCRIMINATION: 2. right to not have any prejudice whatsoever
1. humanitarian reasons, to prevent the state result to him by such refusal
from using its coercive powers. 3. the right to testify on his own behalf subject to
2. practical reasons- the accused is more likely to cross-examination by the prosecution
commit perjury. 4. while testifying the right to refuse a specific
question which tends to incriminate him for
The accused in protected under this rule from some other crime.
questions that tend to incriminate him, which means
those that may subject him to penal liability. USE IMMUNITY TRANSACTIONAL
IMMUNITY
The right may be waived by the failure of the accused Witness’ compelled Witness immune from
to invoke the privilege at the proper time, that is testimony and the fruits prosecution of a crime to
AFTER the incriminating question is asked and thereof cannot be used which his compelled
BEFORE his answer. in subsequent testimony relates.
prosecution of a crime
The privilege of the accused to be exempt from against him
testifying as a witness, involves a prohibition against Witness can still be witness cannot be
testimonial compulsion only and the production by prosecuted but the prosecuted at all
the accused of incriminating documents and articles compelled testimony
demanded off him. (US v. Tan Teng, 23 Phil, 145) cannot be used against
him.
EXCEPTIONS: immunity statutes such as:
1. RA 1379 (Forfeiture of illegally obtained wealth) Effect of Refusal of Accused to Testify
2. RA 749 – Bribery and Graft cases
GENERAL RULE:
RIGHT OF THE ACCUSED V. RIGHT OF AN Silence should not prejudice the accused.
ORDINARY WITNESS
The ordinary witness may be compelled to take the EXCEPTION: Unfavorable inference is drawn when:
witness stand and claim the privilege as each and
QuickTime™ and a 1. the prosecution has already established a
every incriminating TIFFquestion
(Uncompressed)isdecompressor
thrown at him while an
are needed to see this picture. prima facie case, the accused must present
accused may refuse to take the witness stand and proof to overturn the evidence
refuse to answer any and all questions. The accused 2. the defense of the accused is an alibi and he
may also refuse to answer on his past criminality only does not testify, the interference is that the alibi
if he can still be prosecuted for it. is not believable.

However, if the accused testifies in his own behalf, G. RIGHT TO CONFRONT AND CROSS EXAMINE
then he may be cross-examined as any other WITNESSES AGAINST HIM AT TRIAL (RIGHT
witness. He may NOT on cross examination refuse to OF CONFRONTATION)
answer any question on the ground that the answer

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CONFRONTATION 2. reason for the delay


It is the act of setting a witness face to face with the 3. the accused’s assertion or non assertion of the
accused so that the latter may make any objection he right
has to the witness, and the witness may identify the 4. prejudice to the accused resulting from the
accused, and this must take place in the presence of delay.
the court having jurisdiction to permit the privilege of
cross examination. Rules on Speedy Trial
The limitation of this right is that the State must not
The main purpose of this right to confrontation is to be deprived of its day in court and the right of the
secure the opportunity of cross examination and the State and the prosecution of due process must be
second purpose is to enable the judge to observe the respected.
demeanor of the witness.
There is NO violation of the right where the delay is
By way of exception to this rule, it is provided that the imputable to the accused. (Solis v. Agloro, 64 SCRA
court may utilize as part of its evidence the testimony 370)
of a witness who is deceased, out of or with due
diligence cannot be found in the Philippines, The right to a speedy trial is violated when there are
unavailable or otherwise unable to testify, given in UNJUSTIFIED postponements (People v. Declaro,
another proceeding, judicial or administrative, 170 SCRA 143)
involving the same parties and subject matter, the
adverse party having had the opportunity to cross- REMEDIES AVAILABLE TO THE ACCUSED WHEN
examine him. (Rule 130, Sec 47) HIS RIGHT TO A SPEEDY TRIAL IS VIOLATED
1. He should ask for the trial of the case, not the
In any criminal proceeding, the defendant enjoys the dismissal.
right to have compulsory process to secure the 2. Unreasonable delay of the trial of a criminal
attendance of witnesses and the production of case as to make the detention of the defendant
evidence on his behalf. illegal gives ground for habeas corpus as a
remedy for obtaining release as to avoid
WAIVER OF RIGHT TO CONFRONTATION detention for a reasonable period of time.
a. May be done expressly or impliedly. 3. Accused would be entitled to relief in a
b. It is implied when the accused waives his right mandamus proceeding to compel the dismissal
to be present at trial or when he was given the of the information.
opportunity but fails to take advantage of it. 4. ask for the trial of the case and then move to
dismiss (Gandicela v. Lutero, 88 Phil. 790)
H. RIGHT TO COMPULSORY PROCESS
Impartial Trial
This is the right of the accused to have a subpoena Due process requires a hearing before an impartial
and/or a subpoena duces tecum issued in his behalf and disinterested tribunal and that every litigant is
in order to compel the attendance of witnesses and entitled to nothing less that the cold neutrality of an
the production of other evidence. impartial judge. (Mateo, Jr. v. VIllaluz, 50 SCRA 180)
“Like Caesar’s wife, a judge must not be only pure
If a witness refuses to testify when required is in but beyond suspicion.” (Palang v. Zosa, 58 SCRA
contempt of court. The court may order a witness to 776)
give bail or to be arrested.
Public Trial
I. RIGHT TO A SPEEDY, QuickTime™ and a
IMPARTIAL AND One held open or publicly; anyone interested in
PUBLIC TRIAL
TIFF (Uncompressed) decompressor
are needed to see this picture.
observing the way the judge conducts his
proceedings in a courtroom may do so (Garcia v.
The right to a speedy trial is intended to avoid Domingo, 52 SCRA 143) it is sufficient that relatives
oppression and to prevent delay by imposing on the and friends who want to watch the proceedings are
courts and on the prosecution an obligation to given the opportunity to witness the proceedings. It is
proceed with reasonable dispatch. done in public to prevent abuses that may be
committed by the court and the accused is entitled to
FACTS CONSIDERED TO DETERMINE IF RIGHT moral support from his friends and relatives. If it is
TO SPEEDY TRIAL HAS BEEN VIOLATED done in the judges chambers, it is still valid because
1. length of the delay

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the public is not excluded. (Garcia v. Domingo, 52 1. plea bargaining


SCRA 143) 2. stipulation of facts
3. marking and identification of evidence
EXCLUSION OF THE PUBLIC IS VALID WHEN: 4. waiver of objections to admissibility of
1. evidence to be produced is offensive to evidence
decency or public morals 5. such other matters as will promote a fair and
2. upon motion of the accused (Section 21, Rule expeditious trial
119)
Time Limit for Trial in Criminal Cases
Rule on Trial by Publicity Shall not exceed 180 days from the first day of trial,
The right of the accused to a fair trial is NOT however the rule is not absolute. The EXCEPTIONS:
incompatible to free press. Pervasive publicity is no 1. those governed by the Rules on Summary
per se as prejudicial to the right to a fair trial. To Procedure
warrant the finding of prejudicial publicity, there must 2. where the penalty prescribed by law does NOT
be allegations and proof that judges have been exceed 6 months imprisonment or a fine of
unduly influenced, not simply that they might be due P1,000 or both
to the barrage of publicity. (People v. Teehankee, 3. those authorized by the Chief Justice of the SC
249 SCRA 54)
Period of Arraignment of Accused
J. RIGHT TO APPEAL ON ALL CASES ALLOWED Within 30 days from the filing of the information, or
BY LAW AND IN THE MANNER PRESCRIBED from the date the accused appealed before the
BY LAW justice/judge/court in which the charge is pending,
whichever date last occurs.
The right to appeal from a judgment of the conviction
is fundamentally of statutory origin. It is not a matter When Shall Trial Commence After Arraignment
of absolute right that is independent of constitutional Within 30 days from arraignment, HOWEVER, it may
or statutory provisions allowing such appeal. be extended BUT only:
1. for the 180 days for the first 12 calendar month
Waiver of Right to Appeal period from the effectivity of the law
The right to appeal is personal to the accused and it 2. 120 days for the second 12 month period
may be waved either expressly or by implication. 3. 80 days for the third 12 month period
HOWEVER, where the death penalty is imposed,
such right cannot be waived as the review of the
judgment by the SUPREME COURT is automatic and
mandatory (A.M. No. 00-5-03 SC) RULE 116
ARRAIGNMENT AND PLEA
Ozaeta v. CA, 179 SCRA 800 (1989)
Anyone who seeks to exercise the right to appeal ARRAIGNMENT
must comply with the requirements of the rules. It means for bringing the accused into court and
Otherwise the right to appeal is lost informing him of the nature and cause of the
accusation against him.
People v. Ang Gioc, 74 Phil. 366 (1941)
When the accused flees, after the case has bee Section 1. Arraignment and plea; how made
submitted to court for decision, he will be deemed to
have waived his right to appeal from the judgment HOW ARRAIGNMENT IS MADE:
rendered against TIFF
him(Uncompressed)
QuickTime™ and a
1. in open court where the complaint or
decompressor
are needed to see this picture.
information has been filed or assigned for trial
2. by the judge or clerk of court
NOTE: such may no be reviewed by the CA.
3. by furnishing the accused with a copy of the
complaint or information
THE SPEEDY TRIAL ACT OF 1998 (RA 8493)
4. reading it in a language or dialect known to
the accused
DUTY OF THE COURT AFTER THE
5. asking accused whether he pleads guilty or
ARRAIGNMENT OF THE ACCUSED
not guilty
The court SHALL order a pre-trial conference to
consider the following:
When Arraignment Should be Held

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Accused should be arraigned within 30 days from 4. When the plea is indefinite or ambiguous
the date the court acquires jurisdiction over his 5. When he pleads guilty but presents
person, unless a shorter period is provided for by exculpatory evidence (ex. Evidence to prove
law. The time of the pendency of a motion to quash complete self-defense)
or a bill of particulars or other causes justifying
suspension of arraignment shall be excluded in NOTE: if the accused who pleaded guilty
computing the period. presents exculpatory evidence, his plea of guilty
is withdrawn. The judge must order the accused
WHEN ARRAIGNMENT IS HELD WITHIN A to plead again or at least direct that a new plea of
SHORTER PERIOD: “not guilty” be entered for him, otherwise there
1. When an accused is under preventive shall be no standing plea for the accused. This is
detention, his case should be raffled within 3 significant because if there is no standing plea,
days from filing and accused shall be arraigned the accused cannot invoke double jeopardy later
within 10 days from receipt by the judge of the on.
records of the case (RA 8493 Speedy Trial
Act) Presence of Offended Party
2. where the complainant is about to depart The private offended party is required to appear in
from the Philippines with no definite date of the arraignment for the purpose of plea bargaining,
return, the accused should be arraigned determination of civil liability and other matters
without delay (RA 4908) requiring his presence.
3. Cases under RA 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from In case the offended party fails to appear despite due
arraignment notice, the trial court may allow the accused to plead
4. Cases under the Dangerous Drugs Act guilty to a lesser offense necessarily included in the
5. Cases under SC AO 104-96, i.e., heinous offense charged with the conformity of the trial
crimes, violations of the Intellectual prosecutor alone.
Property Rights Law, these cases must be
tried continuously until terminated within 60 Section 2. Plea of guilty to a lesser offense
days from commencement of the trial and to be
decided within 30 days from the submission of PLEA BARGAINING
the case It is process whereby the accused, the offended party
and the prosecution work out a mutually satisfactory
Notes on Arraignment: disposition of the case subject to the court’s approval.
• Trial in absentia may be conducted only after
valid arraignment it usually involves the defendant’s pleading guilty to a
• Accused must personally appear during lesser offense or to only one or some of the counts of
arraignment and enter his plea (counsel cannot a multi-count indictment in return for a lighter
enter plea for accused) sentence than that for the graver charge.
• Accused is presumed to have been validly
arraigned in the absence of proof to the It precludes the filing and prosecution of the offense
contrary originally charged in the information, except when the
• Generally, judgment is void if accused has not plea of guilty to a lesser offense is without the
been validly arraigned consent of the offended party and the prosecutor.
• If accused went into trial without being
arraigned, subsequent arraignment will cure Plea to Lesser Offense During Arraignment
the error provided that the
QuickTime™ and a accused was able
During arraignment, the accused may enter a plea of
TIFF (Uncompressed) decompressor
to present evidence
are needed to seeand cross-examine the
this picture.
guilty to a lesser offense PROVIDED there is consent
witnesses of the prosecution during trial. of the offended party AND of the prosecutor to the
plea of guilty to a lesser offense that is necessarily
WHEN A PLEA OF “NOT GUILTY” SHOULD BE included in the offense charged.
ENTERED:
1. When accused so pleaded Plea to Lesser Offense After Arraignment but
2. When he refuses to plead Before Trial
3. When he makes a conditional or qualified plea After arraignment but BEFORE trial, the accused
of guilt (Ex. Accused pleads guilty but adds may still be allowed to plead guilty to a lesser offense
“pero hindi ko sinasadya”) after withdrawing his previous plea of not guilty. No

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amendment to the complaint or information is 3. Inform the accused of the exact length of
necessary. imprisonment and the certainty that he will
serve it in a national penitentiary
Plea to Lesser Offense After Trial has Begun
After the prosecution has rested its case, a change of Effects of Improvident Plea
plea to a lesser offense may be granted by the judge, The conviction will be set aside if the plea of guilty is
with the approval of the prosecutor and the offended the sole basis for the judgment.
party if the prosecution does not have sufficient
evidence to establish the guilt of the accused for the However, the court may validly convict the accused if
crime charged. The judge cannot on its own grant such conviction is supported by adequate evidence of
the change of plea. guilt independent of the plea itself.

Presence and Consent of the Offended Party Section 4. Plea of guilty to non-capital offense;
The consent of the offended party is necessary reception of evidence, discretionary
before the accused may be allowed to plead guilty to
a lesser offense. If the plea of guilty to a lesser Consequences of Plea of Guilty
offense is made without the consent of the prosecutor As a rule, a plea of guilty is an unqualified admission
and the offended party, the conviction of the accused of the crime and of the attending circumstances
shall not be a bar to another prosecution for an (aggravating and/or qualifying) alleged in the
offense which necessarily includes the offense complaint. Such plea removes the necessity of
charged in the former information (No double presenting further evidence and for all intents and
jeopardy). purposes the case is deemed tried on its merits and
submitted for decision. However, the court may,
If the offended party fails to appear during upon motion, allow the presentation of evidence to
arraignment, the court may allow the accused to prove aggravating and mitigating circumstances.
plead guilty to a lesser offense with the conformity of
the trial prosecutor alone The trial court may allow an accused to plead guilty
and at the same time allow him to prove other
Section 3. Plea of guilty to capital offense; mitigating circumstances. However, if what the
reception of evidence accused would prove is an exempting circumstance,
which would amount to a withdrawal of his plea of not
IMPROVIDENT PLEA guilty.
It is a plea without information as to all the
circumstances affecting it; based upon a mistaken If the accused is permitted to present evidence after
assumption or misleading information or advice. his plea of guilty to a non-capital offense and such
shows that the accused is not guilty of the crime
DUTY OF THE COURT WHEN ACCUSED PLEADS charged, the accused must be acquitted, for there is
GUILTY TO A CAPITAL OFFENSE: no rule which provides that simply because the
1. Conduct a searching inquiry into the accused pleaded guilty to the charge that his
voluntariness and full comprehension of the conviction automatically follows. Additional evidence
consequences of the plea independent of the plea may be considered to
2. require prosecution to present evidence to convince the judge that it was intelligently made.
prove the guilt and precise degree of culpability
of the accused For non-capital offenses, the reception of
3. ask the accused if he desires to present evidence is merely discretionary on the part of the
evidence in his behalf and allow him to do so if
QuickTime™ and a
court. If the information or complaint is sufficient for
he desires TIFFare(Uncompressed) decompressor
needed to see this picture.
the judge to render judgment on a non-capital
offense, he may do so. But if the case involves a
ELEMENTS OF “SEARCHING INQUIRY” capital offense, the reception of evidence to prove
1. Judge must convince himself that accused is the guilt and degree of culpability of the accused is
entering the plea voluntarily and intelligently mandatory.
2. Judge must convince himself that there exists
a rational bass for the finding of guilt based on Section 5. Withdrawal of improvident plea of
accused’s testimony guilty

INSTANCES OF IMPROVIDENT PLEA:

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1. Plea of guilty was compelled by violence or 2. In localities where such members of the bar
intimidation are not available, any resident of the province
2. Accused did not fully understand the of good repute for probity and ability.
meaning and consequences of his plea
3. Insufficient information to sustain Duty of the Court to Appoint Counsel During
conviction of the offense charged Arraignment vs During Trial
4. Information does not charge an offense During arraignment, the court has an affirmative duty
5. Court has no jurisdiction to inform the accused of his right to counsel and to
provide him with one in case he cannot afford it. The
When Improvident Plea may be Withdrawn court must act on its own volition unless the right is
At any time before judgment of conviction becomes waived by the accused.
final, the court may permit and improvident plea of
guilty to be withdrawn and be substituted by a plea of During trial, it is the accused who must assert his
not guilty right to counsel. The court will not act unless the
accused invokes his rights.
People vs Lambino, 103 Phil 504 (1958)
The withdrawal of a plea of guilty is not a matter of Section 8. Time for counsel de oficio to prepare
right to the accused but of sound discretion to the trial for arraignment
court.
What Constitutes “Reasonable Time”
The reason for this is that trial has already begun and It depends on the circumstances surrounding the
the withdrawal of the plea will change the theory of case such as the gravity of the offense, complexity of
the case and put all past proceedings to waste. the allegations, whether a motion to quash or a bill of
Moreover, at this point, there is a presumption that particulars has to be filed, etc.
the plea was made voluntarily.
Generally, reasonable time to prepare for trial is 2-
Section 6. Duty of court to inform accused of his 15 days
right to counsel
Generally, reasonably time to prepare for
4-FOLD DUTY OF COURT WHEN ACCUSED arraignment is 30 mins to 1 hour
APPEARS WITHOUT COUNSEL:
1. Inform the defendant that he has a right to an NOTE: Counsel for the accused must expressly
attorney before being arraigned demand the right to be given reasonable time to
2. After informing him, court must ask the consult with the accused. Only when so demanded
defendant if he desires to have the aid of an does denial thereof constitute reversible error and a
attorney ground for new trial.
3. If he desires but is unable to employ one, the
court must assign an attorney de oficio to Section 9. Bill of Particulars
defend him
4. If the accused desires to procure an attorney of Rules for Bill of Particulars
his own, the court must grant him reasonable Accused must move for a bill of particulars BEFORE
time to do so arraignment to enable him to properly plead and
• Failure to comply with this 4-fold duty amounts prepare for trial, otherwise it is deemed waived.
to a violation due process
The motion for bill of particulars must contain (1) the
Section 7. Appointment of counsel
QuickTime™ and a de oficio alleged defects in the complaint or information and
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are needed to see this picture.
(2) details desired.
COUNSEL DE OFICIO
He is counsel appointed by the court to represent and Rule 12 on Bill of Particulars applies by analogy to
defend the accused in case he cannot afford to Bill of Particulars as provided in Sec. 9 of Rule 116.
employ one himself
The remedy against an information that fails to allege
WHO MAY BE APPOINTED COUNSEL DE OFICIO: the time of the commission of the crime with sufficient
1. Such members of the bar in good standing definiteness is a bill of particulars, not a motion to
who can competently defend the accused quash.

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IT IS NOT THE OFFICE OF THE BILL OF unable to understand the charge against him
PARTICULARS TO: and to plead intelligently thereto.
a. Supply material allegation necessary to the 3. There is a petition for review pending before
validity of a pleading the DOJ or Office of the President, however
b. Change a cause of action or defense stated in the period of suspension shall not exceed 60
the pleading, or to state a cause of action or days counted from the filing of the petition
defense other than the one stated. for review.
c. Set forth the pleader’s theory of his cause of
action or a rule of evidence on which he
intends to rely.
d. Furnish evidentiary information whether such RULE 117
information consists of evidence which the MOTION TO QUASH
pleader proposes to introduce or of facts which
constitute a defense or offset for the other Section 1. Time to move to quash
party or which will enable the opposite party to
establish an affirmative defense not yet QUASHAL VS. NOLLE PROSEQUI:
pleaded. The quashal of the complaint or information is
different from a nolle prosequi, although both have
The filing of a motion for bill of particulars suspends one result, which is the dismissal of the case.
the period to file a responsive pleading.
A nolle prosequi is initiated by the prosecutor
If the motion is granted, the moving party has the while a quashal of information is upon motion to
remaining period or at least 5 days to file his answer quash filed by the accused.
from service of the bill of particulars.
A nolle prosequi is a dismissal of the criminal case by
If the motion is denied, he has the same period to file the government before the accused is placed on trial
his responsive pleading from receipt of the order and before he is called to plead, with the approval of
denying the motion. the court in the exercise of its judicial discretion. It
partakes of the nature of a nonuser or discontinuance
Section 10. Production or inspection of material in a civil suit and leaves the matter in the same
evidence in possession of prosecution condition in which it was before the commencement
of the prosecution. It is not an acquittal; it is not a
Right to Modes of Discovery final disposition of the case; and it does not bar a
Right of the accused to move for the production of subsequent prosecution for the same offense.
material evidence in the possession of the
prosecution. It authorizes the defense to inspect, Time to File Motion to Quash
copy or photograph any evidence of the prosecution
in its possession after obtaining permission of the GENERAL RULE:
court. A motion to quash (MTQ) may be filed by the
accused at any time before the accused enters his
The purpose of such right is to prevent surprises to plea. Thereafter, no MTQ can be entertained by the
the accused and the suppression or alteration of court.
evidence.
EXCEPTION: Under Sec. 9, Rule 117, which adopts
Such right is available even during preliminary the omnibus motion rule. This means that a MTQ
investigation when suchQuickTime™
is necessaryand a
to protect the may still be filed after arraignment on the ground (1)
constitutional right
TIFFto life, liberty
(Uncompressed) and
decompressor
are needed to see this picture.
property of the that the facts alleged in the information charge no
accused. offense, (2) that the court has no jurisdiction over the
offense charged, (3) that the offense or penalty has
Section 11. Suspension of arraignment prescribed, or (4) that the doctrine of double jeopardy
precludes the filing of the information.
GROUNDS FOR SUSPENSION
1. There exists a prejudicial question Right to File MTQ Belongs Only to the Accused.
2. Accused appears to be suffering from an There is nothing in the rules which authorizes the
unsound mental condition which renders him court or judge to motu proprio initiate a MTQ by

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issuing an order requiring why the information may The fact that the allegations in the complaint or
not be quashed on the ground stated in said order. information are vague or broad, is not generally a
ground for a motion to quash, the remedy being to file
Section 2. Form and contents a motion for bill of particulars.

REQUIRED FORM OF MTQ Lack of Jurisdiction over the Person


1. It must be in writing The inclusion of other grounds other than lack of
2. It must be signed by the accused OR his jurisdiction over the person of the accused in an MTQ
counsel does not amount to voluntary submission or a waiver
3. It must specify the factual and legal grounds on of such ground.
which it is based.
Officer Filing the Information Had No Authority
NOTE: Generally, the court cannot consider any The prosecutor who signed the information must
other ground other than those specifically stated in have territorial jurisdiction to conduct the preliminary
the motion to quash, EXCEPT when the ground for investigation of the offense, otherwise the information
quashal is lack of jurisdiction over the offense filed by him would be invalid and can be quashed on
charged. If this is the ground for dismissing the case, such ground
it need not be alleged in the MTQ because it goes
into the very competence of the court to pass upon Lack of authority of the officer is not cured by silence,
the case. acquiescence or express consent or even by
amendment
Section 3. Grounds
Legal Excuse or Justification
GROUNDS FOR MOTION TO QUASH The term “legal excuse or justification” only includes
1. Facts charged do not constitute an offense exempting circumstances and NOT justifying
2. Court trying the case has no jurisdiction over circumstances. Justifying circumstances such as self-
the offense charged defense or defense of a stranger is a matter of
3. Court trying the case has no jurisdiction over defense that must be proven in trial.
the person of the accused
4. Officer who filed the information had no HOW CRIMINAL LIABILITY IS EXTINGUISHED
authority to do so 1. Death of the accused, but as to pecuniary
5. Information does not conform substantially to penalties, liability therefor is extinguished only
the prescribed form if death occurs before final judgment
6. That more than one offense is charged 2. Amnesty
(duplicitous information) 3. Marriage of the offended woman, as stated in
7. Criminal action or liability has been Art 344 of the RPC
extinguished 4. Prescription of the crime
8. Information contains averments which, if true, 5. Service of sentence
would constitute a legal excuse or 6. Absolute pardon
justification 7. Prescription of penalty
9. double jeopardy
HOW CRIMINAL LIABILITY IS PARTIALLY
NOTE: the grounds enumerated in this section are EXTINGUISHED
the EXCLUSIVE grounds for a MTQ. 1. Conditional pardon
2. Commutation of sentence
Facts Alleged Do Not Constitute
QuickTime™ and a
an Offense 3. Allowances earned for good conduct while
The test to determine if the
TIFF (Uncompressed) facts charged
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are needed to see this picture.
constitute serving sentence
an offense is to determine WON all the essential
elements of the crime have been alleged. AMNESTY PARDON
Given for political Given for common
The trial court should limit its inquiry to: crimes crimes
• the averments in the information (these are Given to a class of Given to an individual
deemed hypothetically admitted); persons
• facts admitted by the prosecution; and Needs concurrence of Concurrence of
• Indubitable facts. Congress congress not needed
Beneficiary need not Distinct acts of

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accept (but must admit acceptance needed if the prosecutor at least 3 days before the hearing, the
to being a part of the pardon is conditional notice of hearing should be addressed to adverse
class granted amnesty) counsel or the prosecutor, and proof of service of the
Courts take judicial Courts do not take motion upon the adverse party or prosecutor at least
notice of amnesty judicial notice of 3 days prior to such hearing. This is mandatory.
(need not be proved in pardon (must be
court or may be proven proved in court) Section 4. Amendment of complaint or
even if not alleged) information
Abolishes the offense Relieves the offender
(looks backward) of liability (looks If the alleged defect in the complaint or information
forward) may be cured by amendment, the court shall order
Granted before or after Granted only after the amendment instead of quashing the complaint or
prosecution conviction information. However, if the prosecution fails to
amend the complaint or if after the amendment the
Rules on Prescription defect is still not cured, the MTQ shall be granted.
The period of prescription of violation of special laws
or offenses not penalized by the Revised Penal Code A good tactical move would be to have the accused
but by special laws, and municipal ordinances is first plead to the information and thereafter file a
governed by Act No. 3326 which took effect on motion to quash either before or after the prosecution
December 4, 1926. has presented its evidence. Pursuant to Sec. 9 of
Rule 117, an accused, even after he has entered his
Where an accused has been found to have plea, may still move to quash the information on the
committed a lesser offense includible within the ground that it does not charge an offense. If the case
offense charged, he cannot be convicted of the lesser is dismissed on such ground, the prosecution may
offense if it has already prescribed. To hold not be permitted to correct the information because
otherwise would be to sanction the circumvention of the accused has already pleaded and to allow such
the law on prescription by the simple expedient of amendment may place the accused twice in
accusing the defendant of the graver offense. jeopardy.

The rule that if the last day falls on a Sunday or a Section 5. Effect of sustaining the motion to
holiday, the act can still be done the following day quash
does not apply to the computation of the period of
prescription of a crime, in which the rule is that if the EFFECTS IF MOTION TO QUASH IS SUSTAINED:
last day in the period of prescription of a felony falls 1. If the ground for the motion is either:
on a Sunday or legal holiday, the information a. Facts charged do not constitute an offense
concerning said felony cannot be filed on the next b. Officer who filed the information had no
working day, as the offense has by then already authority to do so
prescribed. c. Information does not conform substantially
to the prescribed form
The period of a continuing crime’s prescription is d. duplicitous information
counted from the latest or last act constituting the
series of acts continuing the single crime. The court may order that another information
be filed or an amendment thereof be made, as
The prescriptive period of offenses penalized by the case may be, within a definite period. If
special laws and ordinances is interrupted only by the such order is not made, or if having been
filing of complaint or information
QuickTime™ and a in court. This is made, another information is not filed within
TIFF (Uncompressed) decompressor
without distinction areas toto seewhether
needed this picture. the cases are the time specified in the order or within such
covered by the Rule on Summary Procedure. time as the court may order, the accused, if in
custody, shall be discharged therefrom, unless
The period of prescription does not run when the he is also in custody on some other charge.
offender is absent from the Philippines.
2. If the motion is based on the following grounds:
Rule on Contentious Motions a. Criminal action or liability has been
Contentious motions in criminal cases must comply extinguished
with the requirements that they be set for hearing at a
specified date with prior notice to the adverse party or

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b. Information contains averments which, if 1. Criminal action or liability has been


true, would constitute a legal excuse or extinguished
justification 2. double jeopardy
c. double jeopardy
Section 7. Former conviction or acquittal; double
The court must state, in the order granting the jeopardy
motion, the release of the accused if he is in
custody or the cancellation of his bond if he is KINDS OF DOUBLE JEOPARDY:
on bail. 1. No person shall be put twice in jeopardy for the
SAME OFFENSE
3. If the ground for the MTQ was that the court 2. When an act punished by a law and an
has no jurisdiction over the offense, the better ordinance, conviction or acquittal under either
practice is to forward or remand the case to the shall be a bar to another prosecution for the
proper court, not to quash the complaint or SAME ACT
information.
IDENTITY RULE
PROCEDURE IF MOTION TO QUASH IS DENIED: There is identity between two offenses not only when
1. Accused should plead the second offense is exactly the same as the first,
2. Accused should go to trial without prejudice to but also when the second offense is includes or is
the special defenses he invoked in the motion necessarily included in the first offense or is an
3. Appeal from the judgment of conviction, if any, attempt or frustration of thereof
and interpose the denial of the motion as an
error. EXCEPTIONS TO IDENTITY RULE:
1. The graver offense developed due to
Remedy of Aggrieved Party supervening facts arising out of the same act
An order granting a MTQ is appealable, as the or omission constituting the former charge
proper remedy. The accused would not be placed in 2. The facts constituting the graver offense
double jeopardy because the accused has not been became known or were discovered only after a
arraigned yet. plea was entered in the former complaint or
information.
Newsweek Inc. vs IAC, 142 SCRA 443 (1986) 3. the plea of guilty to a lesser offense was made
An order denying a MTQ is not appealable without the consent of the prosecutor and the
because such order is merely interlocutory. However, offended party
if the court, in denying the MTQ, acts with grave
abuse of discretion, the certiorari or prohibition will REQUISITES TO RAISE DOUBLE JEOPARDY:
lie. 1. first jeopardy must have attached
2. first jeopardy must have been terminated
This rule does not preclude the aggrieved party from 3. the second jeopardy must be for the same
filing a special civil action of certiorari, as a substitute offense or the second offense includes or is
for the remedy of a lost appeal, where there is a necessarily included in the offense charged in
patent, capricious and whimsical exercise of the first information or is an attempt or
discretion by a trial judge or where an appeal will not frustration thereof.
promptly relieve the aggrieved party from the
injurious effect of the disputed order, as in the REQUISITES FOR 1ST JEOPARDY TO ATTACH:
quashal of an information for incomplete preliminary 1. valid complaint or information
investigation. QuickTime™ and a
2. court of competent jurisdiction
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3. valid arraignment
Section 6. Order sustaining the motion to quash 4. valid plea
not a bar to another prosecution; exception 5. the defendant was acquitted, convicted, or the
case was dismissed without his express
GENERAL RULE: consent or authority.
An order sustaining a MTQ is not a bar to another
prosecution for the same offense NOTE: In order to raise double jeopardy for the
SAME ACT, there must be an acquittal or conviction.
EXCEPTIONS: When the ground for the MTQ is any For double jeopardy for the SAME OFFENSE it is
of the following:

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sufficient that the case was dismissed without his An order discharging an accused as a state witness
express consent. amounts to an acquittal, hence double jeopardy will
apply.
Perez vs. CA, 163 SCRA 236 (1988)
If a single act is punished by two different laws, However, if he fails or refuses to testify against his
but each requires proof of an additional fact which the co-accused in accordance with his sworn statement,
other does not require, conviction or acquittal in one he may be prosecuted again.
will not bar a prosecution for the other.
Section 8. Provisional dismissal
Ex. Violation of BP 22 and Estafa
REQUISITES PROVISIONAL DISMISSAL:
Double Jeopardy will not apply in case of a conviction 1. consent of the prosecutor
of a crime under a special law, which also constitutes 2. consent of the accused
an offense under the Revised Penal Code. This is 3. notice to the offended party
because the former is malum prohibitum, while the
latter is mala in se. NOTE: If a case is provisionally dismissed, the failure
to revive or reinstate the case within the periods set
In order for double jeopardy to attach, the judgment by law will make the dismissal permanent.
must be reading its entirety (promulgation of
judgment). If only the dispositive portion is read, then HOW TO REVIVE A CASE:
double jeopardy will not attach. 1. Refiling of the information
2. Filing a new information for the same offense
Test for “Valid Complaint or Information” or one necessarily included in the original
In general, if it can support a valid conviction. This offense charged
means that all the necessary elements of the crime
are alleged PERIODS FOR REINSTATEMENT/REVIVAL:
1. 1 YEAR for offenses punishable by
What is controlling for purposes of determining the imprisonment not exceeding 6 years
presence of double jeopardy is the crime charged in 2. 2 YEARS for offenses punishable by
the complaint not the crime proven in trial. imprisonment exceeding 6 years

DISMISSAL ACQUITTAL GENERAL RULE:


Does not decide the Always based on the When a case is reinstated there is no need to
case on the merits, does merits. Defendant is conduct a new preliminary investigation
not determine acquitted bec. guilt
defendant’s guilt or wasn’t proven beyond EXCEPTIONS:
innocence reasonable doubt • Original witnesses or some of them recant
Double Jeopardy will not Double Jeopardy always their testimony, are no longer available (died)
always attach attaches or when new witnesses have emerged
• Other persons are charged under the new
WHEN DISMISSAL = ACQUITTAL: complaint
1. Demurrer to evidence • Original charge has been upgraded
2. Dismissal due to violation of right to speedy • Criminal liability of the accused has been
trial (even if dismissal was upon motion of the upgraded (ex. accomplice Æ principal)
accused or with his express consent)
QuickTime™ and a Section 9. Failure to move to quash or to allege
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are needed to see this picture. any ground therefor
If dismissal was upon motion of the accused or
counsel, such is deemed to be with defendant’s ALL THE GROUNDS FOR A MTQ ARE DEEMED
express consent. WAIVED IF NOT SEASONABLY RAISED, EXCEPT:
1. Facts charged do not constitute an offense
Silence of the accused does not mean consent. 2. Court trying the case has no jurisdiction over
the offense charged
Statement of “no objection” is express consent. 3. Criminal action or liability has been
extinguished
Rules Regarding State Witnesses 4. double jeopardy

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this is in order to enforce the mandatory nature of


pre-trial in criminal cases.

RULE 118 The sanctions may be in the form of reprimand, fine,


PRE-TRIAL or imprisonment. Inasmuch as this is similar to
indirect contempt of court, the penalty for indirect
Section 1. Pre-trial; mandatory in criminal cases contempt of court may be imposed.

Pre-trial is MANDATORY in all criminal cases He court may only impose sanctions for non-
appearance on counsel or the prosecutor, not on the
The court shall after arraignment and within 30 days accused. The reason why the accused is not required
from the time the court acquires jurisdiction over the to appear is that to include him among the mandatory
person of the accused, unless a shorter period is parties might violate his constitutional right to remain
provided for by law, order a pre-trial. Its main silent.
objective is to achieve an expeditious resolution of
the case. Section 4. Pre-trial order

THINGS CONSIDERED DURING PRE-TRIAL: PRE-TRIAL ORDER


1. plea bargaining It is an order issued by the court reciting the actions
2. stipulation of facts taken, the facts stipulated and the evidence marked
3. marking for identification of evidence during the pre-trial conference. Such order binds the
4. waiver of objections to admissibility of parties and limits the trial to those matters not
evidence disposed of.
5. modification of the order of trial if the
accused admits the charge but interposes a
lawful defense (reverse trial)
6. other matters that will promote a fair and RULE 119
expeditious trial of the civil and criminal TRIAL
aspects of the case
Section 1. Time to prepare for trial
Section 2. Pre-trial agreement
TRIAL
REQUIRED FORM OF PRE-TRIAL AGREEMENT: It is the examination before a competent tribunal
1. must be in writing according to the laws of the land, of the facts put in
2. signed by the accused issue in a case for the purpose of determining such
3. signed by counsel issue

NOTE: If the required form is not observed, the pre- HEARING


trial agreement cannot be used against the accused. It is not confined to trial but embraces the several
This is contrary to the rule on stipulations of facts stages of litigation, including the pre-trial stage.
during trial which only requires the signature of
counsel in order to be valid. Republic v. Sandiganbayan, 416 SCRA 133 (2003)
A hearing does not necessarily imply the
Purpose of the Rule presentation of oral or documentary evidence in open
The requirements in Section 2 are intended to further court but that the parties are afforded an opportunity
safeguard the rights QuickTime™of the and a
accused against to be heard.
improvident or TIFFareunauthorized
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agreements or
admissions which his counsel may have entered into After a plea of guilty is entered, the accused shall
without his knowledge have at least 15 days to prepare for trial.

Section 3. Non-appearance at pre-trial conference The trial shall commence within 30 days from receipt
of the pre-trial order
The court may impose proper penalties and
sanctions for non-appearance during the pre-trial The trial judge does not lose jurisdiction to try the
conference by the counsel for the accused or the case after the 180-day limit. He may, however, be
prosecutor without acceptable cause. The reason for penalized with disciplinary sanctions for failure to

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observe the prescribed limit without proper hearing, unless for meritorious reasons an extension
authorization by the Supreme Court. is permitted.

REQUISITES FOR TRIAL IN ABSENTIA: The non-appearance of the prosecution at the trial,
1. The accused has been arraigned despite due notice, justified a provisional dismissal or
2. He has been notified of the trial an absolute dismissal depending upon the
3. His failure to appear is unjustified circumstances

People v. Agbulos, G.R. No. 73907 (1993) CASES WHERE TIME LIMITATION IS
The purpose of trial in absentia is to speed up INAPPLICABLE:
the disposition of criminal cases. 1. Criminal cases covered by the Rule on
Summary Procedure or those where the
Effects of trial in absentia: penalty does not exceed 6 months
imprisonment or a fine of P1,000 as governed
People v. Landicho, G.R. No. 119527 (1996) by the Rules on Summary Procedure
The accused waives the right to present evidence 2. When the offended party is about to depart
and cross-examine the witnesses against him with no definite date of return
3. Child abuse cases
4. Violations of Dangerous Drugs Law
The accused’s waiver does not mean, however, that
5. Kidnapping, robbing in a band, robbery against
the prosecution is deprived of the right to require the
banking or financial institution, Violation of
presence of the accused for purposes of identification
Carnapping Act and other heinous crimes
by the witnesses which is vital for conviction of the
accused, except where he unqualifiedly admits in
REQUISITES BEFORE A TRIAL CAN BE PUT ON
open court after his arraignment that he is the person
ACCOUNT OF THE ABSENCE OF WITNESS:
named as defendant in the case on trial.
1. That the witness is material and appears to
the court to be so;
INSTANCES WHERE THE PRESENCE OF THE
2. that the party who applies has been guilty of
ACCUSED IS REQUIRED BY LAW:
no neglect;
1. On arraignment;
3. that the witnesses can be had at the time to
2. On promulgation of judgment except for light
which the trial is deferred and incidentally
offenses;
that no similar evidence could be obtained;
3. For identification purposes;
4. that an affidavit showing the existence of the
4. When the court with due notice requires so.
above circumstances must be filed.
Section 2. Continuous trial until terminated;
REMEDIES OF ACCUSED WHERE A
postponements
PROSECUTING OFFICER WITHOUT GOOD
CAUSE SECURES POSTPONEMENTS OF THE
CONTINUOUS TRIAL SYSTEM
TRIAL OF A DEFENDANT AGAINST HIS
Trial once commenced shall continue from day to day
PROTEST BEYOND A REASONABLE PERIOD OF
as far as practicable until terminated; but it may be
TIME:
postponed for a reasonable period of time for good
1. Mandamus to compel
cause
2. if he is restrained of his liberty, by habeas
corpus to obtain his freedom
Trial shall in no case exceed 180 days from the first
day of trial, except as otherwise provided by the
DUTIES OF PRESIDING JUDGE UNDER THE
Supreme Court TIFF (Uncompressed)
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CONTINUOUS TRIAL SYSTEM:
1. Adhere faithfully to the session hours
The SC adopted the continuous trial system as a
prescribed by laws;
mode of judicial fact-finding and adjudication
2. maintain full control of the proceedings;
conducted with speed and dispatch so that trials are
3. efficiently allocate and use time and court
held on the scheduled dates without postponement,
resources to avoid court delays
the factual issues for trial well-defined at pre-trial and
the whole proceedings terminated and ready for
Section 3. Exclusions
judgment within 90 days from the date of initial

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EXCLUSIONS IN COMPUTATION OF TIME WITHIN When the whereabouts are unknown or cannot be
WHICH TRIAL MUST COMMENCE: determined with due diligence
A. Any period of delay resulting from other
proceedings concerning the accused, UNAVAILABLE
including but not limited to the following: When his whereabouts are known but his presence
1. Delay resulting from an examination of the at the trial cannot be obtained with due diligence
physical and mental condition of the
accused; Section 4. Factors granting continuance
2. Delay resulting from proceedings with
respect to other criminal charges against FACTORS FOR GRANTING CONTINUANCE:
the accused; 1. Whether the failure to grant continuance would
3. Delay resulting from extraordinary remedies make a continuation of the proceeding
against interlocutory orders; impossible or result in a miscarriage of justice.
4. Delay resulting from pre-trial proceedings; 2. The case, as a whole, is novel, unusual and
provided, that the delay does not exceed complex, or it is unreasonable to expect
thirty (30) days; adequate preparation within the periods of time
5. Delay resulting from orders of inhibition, or established therein.
proceedings relating to change of venue of
cases or transfer from other courts; The grant of a motion for continuance is NOT a
6. Delay resulting from a finding of existence matter of right
of a prejudicial question; and
7. Delay reasonably attributable to any period, The purpose of this rule is to control the discretion of
not to exceed thirty (30) days, during which the judge in the grant of continuance on his instance
any proceeding concerning the accused is or on motion of any party litigant.
actually under advisement.
B. Any period of delay resulting from the absence Section 5. Time limit following an order for new
or unavailability of an essential witness. trial
C. Any period of delay resulting from the mental
incompetence or physical inability of the GENERAL RULE:
accused to stand trial. After an order for new trial is issued, the trial
D. If the information is dismissed upon motion of commences within 30 days from notice of the order.
the prosecution and thereafter a charge is filed
against the accused for the same offense, any EXCEPTION: If the 30-day period becomes
period of delay from the date the charge was impractical due to unavailability of the witnesses and
dismissed to the date the time limitation other factors, it may be extended by the court but in
would commence to run as to the no case should it exceed 180 days from notice of
subsequent charge had there been no said order for new trial.
previous charge.
E. A reasonable period of delay when the Section 6. Extended time limit
accused is joined for trial with a co- Section 7. Public attorney’s duties where accused
accused over whom the court has not is imprisoned
acquired jurisdiction, or, as to whom the time
for trial has not run and no motion for separate PUBLIC ATTORNEY’S DUTIES:
trial has been granted. 1. Promptly undertake to obtain the presence of
F. Any period of delay resulting from a the prisoner for trial or cause a notice to be
continuance granted by any court motu
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served on the person having custody of the
proprio, or TIFF
onare(Uncompressed)
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needed to see this picture.
prisoner requiring such person to so advise the
his counsel, or the prosecution, if the court prisoner of his right and demand trial.
granted the continuance on the basis of its 2. Upon receipt of that notice, the custodian of
findings set forth in the order that the ends of the prisoner shall promptly advise the prisoner
justice served by taking such action outweigh of the charge and of his right to demand trial. If
the best interest of the public and the accused at anytime thereafter the prisoner informs his
in a speedy trial. custodian that he demands such trial, the latter
shall cause notice to that effect to be sent
ABSENT promptly to the public attorney.

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3. Upon receipt of such notice, the public attorney Arraignment must be set within 30 days from the date
shall promptly seek to obtain the presence of the court acquires jurisdiction over the person of the
the prisoner for trial. accused, and within the same period, the court must
4. When the custodian of the prisoner receives set the case for pre-trial, and within 30 days from the
from the public attorney a properly supported receipt of the pre-trial order, the trial must be
request for the availability of the prisoner for commenced.
purpose of trial, the prisoner shall be made
available accordingly. The remedy of the accused is to file a motion to
dismiss the information on the ground of denial of his
Public Attorneys referred to in this section are those right to speedy trial. Failure of the accused to move
attorneys of the Public Attorney’s Office of the for dismissal prior to trial shall constitute a waiver of
Department of Justice who are assisting accused not his right to dismiss under this section
financially capable to have a counsel of their own.
These public attorneys enter their appearance in The dismissal shall be subject to the rules on double
behalf of the accused upon his request or that of his jeopardy. So if the dismissal is with prejudice, the
relative or upon being appointed as counsel de oficio case cannot be revived anymore. But if the dismissal
by the court. is without prejudice, the revival of the case is proper.

The sanctions are designed to speed up the trial and Section 10. Law on speedy trial not a bar to
disposition of the cases and to encourage the provision on speedy trial in the Constitution
lawyers to go to court ready for trial and not “ready to
postpone.” The accused should be brought to trial within 30 days
from the date the court acquires jurisdiction over the
Section 8. Sanctions person of the accused (Rule 116, Section 1g). If he
is not brought to trial within the period specified, he
ACTS WHICH EVOKE THE SANCTION: may quash the information on the ground of denial of
1. Knowingly allowing the case to be set on trial his right to speedy trial. Failure to move for dismissal
without disclosing that a necessary witness prior to trial shall constitute a waiver of the right to
would be unavailable; dismiss under Section 9, Rule 120.
2. Files a motion solely for delay, knowing it to be
frivolous and without merit; Arraignment must be set within 30 days from the date
3. Knowingly makes a false statement in order to the court acquires jurisdiction over the person of the
obtain continuance; accused, and within the same period, the court must
4. Willfully fails to proceed to trial without set the case for pre-trial, and within 30 days from the
justification. receipt of the pre-trial order, the trial must be
commenced.
THE SANCTIONS:
a) Private Defense Counsel – fine not Section 11. Order of trial
exceeding P20, 000 + criminal sanctions, if
any. ORDER OF TRIAL:
b) Counsel de officio, Public Attorney or 1. Prosecution presents evidence to prove the
Prosecutor – fine not exceeding P5, 000 + charge and, in the proper case, the civil
criminal sanctions, if any. liability.
c) Defense Counsel or Prosecutor – denial of 2. The accused presents evidence to prove his
the right to practice before the court trying the defense and damages, if any.
case for a period not exceeding 30 days +
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3. The prosecution, then the defense, may
criminal sanctions, if any.
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present rebuttal and sur-rebuttal evidence
unless the court, in furtherance of justice,
KINDS OF SANCTIONS UNDER THIS SECTION: permits them to present additional evidence.
1. Criminal; 4. Upon admission of the evidence by the parties,
2. Administrative; the case is deemed submitted for decision.
3. Contempt of court.
GENERAL RULE:
Section 9. Remedy where accused is not brought The order in the presentation of evidence must be
to trial within the time limit followed. The accused may not be required to

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present his evidence first before the prosecution Section 12. Application for examination of
adduces its own proof. witness for accused before trial

EXCEPTION: Where a reverse procedure was Accused may have his witness examined
adopted without the objection of the defendant and conditionally in his behalf BEFORE trial upon motion
such procedure did not prejudice his substantial with notice to all other parties:
rights, the defect is not a reversible error.
SUCH MOTION MUST STATE:
REVERSE TRIAL 1. Name and residence of the witness;
When the accused admits the act or omission 2. substance of testimony;
charged in the complaint/information but interposes a 3. witness is so sick to afford reasonable ground
lawful defense, the trial court may allow the accused to believe that he will not be able to attend the
to present his defense first and thereafter give the trial OR resides more than 100km and has no
prosecution the opportunity to present his rebuttal means to attend the same or other similar
evidence. circumstances

A departure from the order of the trial is NOT Section 13. Examination of defense witness; how
reversible error as where it was agreed upon or not made
seasonably objected to, but not where the change in
the order of the trial was timely objected by the DEPOSITION
defense. It is the testimony of a witness taken upon oral
questions or written interrogatories, in open court, but
Where the order of the trial set forth under this in pursuance of a commission to take testimony
section was not followed by the court to the extent of issued by a court, or under a general law or court rule
denying the prosecution an opportunity to present its on the subject, and reduced to writing and duly
evidence, the judgment is a NULLITY. authenticated, and intended to be used in preparation
and upon the trial of a civil or criminal prosecution.
Prosecution begins because it has the burden of
proving the guilt of the accused, relying on the
strength of its own evidence and NOT on the PURPOSE OF TAKING DEPOSITIONS:
weakness of the defense. 1. Greater assistance to the parties in
ascertaining the truth and checking and
If there is not enough evidence to prove the preventing perjury
accused’s guilt beyond reasonable doubt, then the 2. Provide an effective means of detecting and
defense should file Demurrer to Evidence exposing false, fraudulent claims and defenses
3. Make available in a simple, convenient and
People v. Gutierrez, 302 SCRA 643 (1999) inexpensive way, facts which otherwise could
Refusal of the trial court to reverse the order of not be proved except with greater difficulty
trial upon demand of the accused who pleads self- 4. Educate the parties in advance of trial as to the
defense as a defense is not a reversible error real value of their claims and defenses thereby
encouraging settlements
NEGATIVE DEFENSE AFFIRMATIVE 5. Expedite litigation
DEFENSE 6. Prevent delay
Requires the prosecution The accused admits the 7. Simplify and narrow the issues
to prove the guilt of the act or omission charged, 8. Expedite and facilitate both preparation and
accused beyond TIFF (Uncompress but and
QuickTime™ interposes
a a defense, trial
ed) decompressor
reasonable doubt are needed to see
which if proven, would
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exculpate him WHO SHOULD MAKE THE EXAMINATION?


Accused claims that one 1. judge;
of the elements of the 2. a member of the Bar in good standing so
offense charged is not designated by the judge;
present. It is incumbent 3. before an inferior court designated in the order
upon the prosecution to of a superior court
prove the existence of
this element Section 14. Bail to secure appearance of material
witness

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court, in its discretion upon motion of the prosecution


People v Montejo, 21 SCRA 722 (1967) or any of the defendants, orders a separate trial.
Even if the witness has been cited to appear
before a court sitting outside of the province in which The motion for separate trial must be filed BEFORE
he resides and the distance is more than 50km (now the commencement of the trial and cannot be raised
100km) from his place of residence by the usual for the first time on appeal.
course of travel, he is still bound by the subpoena.
Rule 23 applies only in civil cases. If a separate trial is granted, the testimony of one
accused imputing the crime to his co-accused is not
If the court is satisfied upon proof or oath that a admissible against the latter. It would be admissible if
material witness will not testify when required, it may the latter had the opportunity for cross-examination.
order the witness to post bail in such sum as may be
deemed proper. If the witness refuses to post bail, Where the conditions are fulfilled, joint trial is
the court shall imprison him until he complies or is automatic, without need for the trial court to issue an
legally discharged after his testimony has been order to that effect.
taken.
The grant of separate trial rests in the sound
Section 15. Examination of witness for the discretion of the court and is not a matter of right to
prosecution the accused, especially where it is sought after the
presentation of the evidence of the prosecution. In
EXAMINATION OF WITNESS FOR THE such separate trial, only the accused presenting
PROSECUTION: evidence has to be present. And the evidence to be
1. The witness for the prosecution may be adduced by each accused should not be considered
conditionally examined by the court where the as evidence against the other accused.
case is pending if said witness is:
a. Too sick to appear at the trial; or When a separate trial is demanded and granted, it is
b. Has to leave the Philippines with no definite the duty of the prosecution to repeat and produce all
date of return. its evidence at each and every trial, unless it has
2. Such examination should be in the presence of been agreed by the parties that the evidence for the
the accused or in his absence after reasonable prosecution would not have to be repeated at the
notice to attend the examination has been second trial and all the accused had been present
served on him. during the presentation of the evidence of the
3. Examination of child witnesses is tackled under prosecution and their lawyer had the opportunity to
the Rule on Examination of a Child Witness cross-examine the witnesses for the prosecution.
which took effect on December 15, 2000.
People v. Ellasos and Obillo, G.R. No. 139323
EXAMINATION OF EXAMINATION OF (2001)
DEFENSE WITNESS PROSECUTION The trial judge gravely erred in rendering a
WITNESS judgment of conviction against both accused. Since
Conducted before any Conducted ONLY before the trial of B did not take place, the trial court should
judge, member of the bar the judge or the court have rendered a decision only against A.
in good standing or where the case is
before any inferior court pending Section 17. Discharge of accused to be state
No right to cross- Right to cross-examine witness
examine Section 18. Discharge of accused operates as
May be made if the Cannot
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witness resides more are n eeded to s the witness
ee this picture. resides more
than 100km from the than 100km from the STATE WITNESS
place of trial place of trial One of two or more persons jointly charged with the
commission of a crime but who is discharged with his
Section 16. Trial of several accused consent as such accused so that he may be a
witness for the state.
When two or more defendants are jointly charged
with any offense, they shall be tried jointly, unless the REQUISITES TO BE A STATE WITNESS:
1. Two or more persons are jointly charged
with the commission of an offense

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2. The application for discharge is filed by the trial court may be challenged in a petition for
prosecution before it rests its case certiorari and prohibition.
3. Absolute necessity for the testimony of the
accused A discharge under the original information is just as
• “Absolute necessity” means that he alone binding upon the subsequent amended information,
has knowledge of the crime, and not when since the amended information is just a continuation
his testimony would simply corroborate or of the original.
otherwise strengthen the evidence in the
hands of the prosecutor. The subsequent amendment of the information does
4. There is no other direct evidence available not affect the discharge of an accused as a state
for the proper prosecution of the offense. witness because the amended information is not
5. Testimony of the accused can be anew information but is a continuation of the original
substantially corroborated in its material proceeding.
points.
6. Accused does not appear to be the most guilty GENERAL RULE:
• Means that he does not appear to have the A co-conspirator may testify against the other co-
highest degree of culpability in terms of conspirator even if not done clandestinely
participation in the commission of the PROVIDED it must be received by court with caution
offense and not necessarily in the severity and must be substantially corroborated in its material
of the penalty imposed. points.
• The fact that there was conspiracy does not
preclude one from being discharged as a The EXCEPTION to this rule is even if
state witness. What the court takes into uncorroborated but the testimony was given in a
account is the gravity or nature of acts straightforward manner and it contains details which
committed by the accused to be discharged could not have been the result of deliberate
compared to those of his co-accused, and afterthought.
not merely the fact that in law the same or
equal penalty is imposable on all of them. It is not necessary that there be a hearing of the
7. Accused has not been convicted of any motion to discharge as long as the court is able to
offense involving moral turpitude. receive evidence for and against the discharge of an
accused to become a witness. (People v Sunga)
TWO TYPES OF IMMUNITY:
a. TRANSACTIONAL IMMUNITY – witness can GENERAL RULE:
no longer be prosecuted for any offense The discharge of an accused to be a state witness
whatsoever arising out of the act or amounts to an acquittal and is a bar to future
transaction. prosecution for the same offense.
b. USE-AND-DERIVATIVE-USE-IMMUNITY –
witness is only assured that his or her Where an accused has been discharged to be
particular testimony and evidence derived from utilized as state witness and he thus testified, the fact
it will not be used against him or her in a that the discharge was erroneous as the conditions
subsequent prosecution. for discharge were not complied with did not thereby
nullify his being precluded from re-inclusion in the
The application for discharge of the state witness information or from being charged anew for the same
must be made upon motion of the prosecution offense or for an attempt or frustration thereof, or for
BEFORE resting its case. crimes necessarily included in or necessarily
QuickTime™ and a
including those offense.
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The defense should beto seeafforded
are needed this picture. opportunity to
oppose the motion to discharge an accused to be a EXCEPTIONS:
state witness. a. If accused fails or refuses to testify against the
co-accused;
Any question against the order of the court to b. If he was granted immunity and fails to keep
discharge an accused to be used as state witness his part of the agreement, his confession of his
must be raised in the trial court; it cannot be participation in the commission of the offense
considered on appeal. Where there is, however, a is admissible in evidence against him.
showing of grave abuse of discretion, the order of the

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Section 19. When mistake has been made in THIS CONTEMPLATES A SITUATION WHERE
charging the proper offense SEPARATE MOTIONS ARE FILED:
1. for offenses founded on the same facts;
When, at any time before judgment, it becomes 2. for offenses which form part of a series of
manifest that a mistake has been made in charging offenses of similar character.
the proper offense and the accused cannot be
convicted of the offense charged or any other offense The purpose of consolidation is to avoid multiplicity of
necessarily included therein, the said accused shall suits, guard against oppression or abuse, prevent
not be discharged if there appears to be good cause delay, clear congested dockets, simplify the work of
to detain him. the trial court, and save unnecessary cost or
expense; in short, the attainment of justice with the
If there appears to be good cause to detain the least expense and vexation to the party litigants.
accused, the court shall commit the accused and
dismiss the original case upon the filing of the proper While consolidation of cases and joint trial of related
information. offenses and the rendition of a consolidated decision
are allowed, the court cannot convict an accused of a
When the offense proved is neither included in, nor complex crime constitutive of the various crimes
does it include, the offense charged and is different alleged in the consolidated cases.
therefrom, the court should dismiss the action and
order the filing of a new information charging the Section 23. Demurrer to evidence
proper offense.
DEMURRER TO EVIDENCE
US v. Campo, 23 Phil. 369 (1912) It is an objection by one of the parties in an action, to
This rule is predicated on the fact that an accused the effect that the evidence which his adversary
person has the right to be informed of the nature and produced is insufficient in point of law, whether true
cause of the accusation against him, and to convict or not, to make out a case or sustain the issue.
him of an offense different from that charged in the
complaint or information would be an unauthorized AFTER THE PROSECUTION SHALL HAVE
denial of that right. RESTED ITS CASE, THE CASE MAY BE
DISMISSED IN ANY OF THE FOLLOWING
Section 20. Appointment of acting prosecutor MANNER:
a. Court on its own initiative can dismiss the case
When a prosecutor, his assistant or deputy is after giving prosecution opportunity to be heard
disqualified to act, the judge or the prosecutor shall b. Accused files demurrer with or without leave of
communicate with the Secretary of Justice in order court
that the latter may appoint an acting prosecutor. c. If the demurrer is denied:
• With leave of court, accused can present
Section 21. Exclusion of the public his evidence
• Without leave of court, accused waives
GENERAL RULE: right to present evidence
The accused has the right to public trial and under
ordinary circumstances, the court may not close the With or Without Leave of Court
door of the courtroom to the general public. a) With leave
• if the motion is denied, he can still present
EXCEPTION: The public may be excluded from the evidence.
courtroom when evidence to beand
QuickTime™ produced
a is offensive • The motion must be filed within a non-
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to decency or publicaremorals.
needed to see this picture. extendible period of 5 days after the
prosecution rests its case.
The court may also, on motion of the accused, • If leave is granted, the accused shall file the
exclude the public from the trial except court demurrer to evidence within a non-
personnel and the counsel of the parties. extendible period of 10 days from notice of
the grant of leave of court.
Section 22. Consolidation of trials of related • The prosecution may oppose the demurrer
offenses to evidence within a non-extendible period
of 10 days from receipt of the demurrer.

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b) Without leave If judgment is not put in writing, the proper remedy


• if the motion is denied, he loses the right to would be to file a petition for mandamus to compel
present evidence and the case will be the judge to put in writing the decision of the court.
deemed submitted for decision
Article VIII, Section 14, par. 1 of the Constitution
If there are two or more accused and only one of requires that the decisions of the court shall contain
them presents a demurrer to evidence, without leave the facts and the law on which they are based. The
of court, the trial court may defer resolution thereof rationale is that the losing party is entitled to know
until the decision is rendered on the other accused. why he lost, so he may appeal to a higher court.

An order denying the motion for leave of court to file The judge who penned the decision need not be the
a demurer shall NOT be reviewable by appeal or by one who heard the case. The judge can rely on the
certiorari before judgment. This is because demurrer transcript of stenographic notes taken during the trial.
is merely interlocutory. However, if there was grave
abuse of discretion, then certiorari may apply. Section 2. Contents of judgment

If the court denies the demurrer to evidence without CONTENTS OF A JUDGMENT OF CONVICTION:
leave of court, the accused is deemed to have 1. The legal qualifications of the offense
waived his right to present evidence and submits the constituted by the acts committed by the
case for judgment on the basis of the evidence of the accused and the aggravating and mitigating
prosecution. circumstances which attended its
commission.
Section 24. Reopening 2. Participation of the accused either as
principal, accomplice or accessory
At any time before finality of judgment of conviction, 3. penalty imposed on the accused
judge may, motu proprio or upon motion, with hearing 4. civil liability or damages, if any, unless a
in either case reopen to avoid miscarriage of justice. separate civil action has been reserved or
waived.

Alternative Penalties
RULE 120 A judge cannot impose alternative penalties
JUDGMENT (reclusion perpetua or P10,000 fine) because this
would allow the accused to choose which penalty to
Section 1. Judgment; definition and form serve, giving the accused discretion properly
belonging to the court.
JUDGMENT
It is an adjudication by the court that the accused is CONTENTS OF A JUDGMENT OF ACQUITTAL:
guilty or not guilty of the offense charged and the 1. Whether the evidence absolutely failed to
imposition of the proper penalty and civil liability, if prove the guilt of the accused or merely failed
any. It is a judicial act which settles the issues, fixes to prove it beyond reasonable doubt
the rights and liabilities of the parties, and determines 2. If the act or omission from which civil liability
the proceeding, and is regarded as the sentence of may arise did not exist
the law pronounced by the court on the action or
question before it. REASONABLE DOUBT – state of the case which,
after full consideration of all the evidence, leaves the
REQUISITES OF A JUDGMENT: QuickTime™ and a
mind of the judge in such a condition that he cannot
1. Written in official language
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are needed to see this picture.
say that he feels an abiding conviction, to a moral
2. Personally and directly prepared by the judge certainty, of the truth of the charge.
3. Signed by him
4. Contains clearly and distinctly a statement of Barbers vs Laguio, Jr., 351 SCRA 606 (2001)
the facts and the law upon which it is based. It is well settled that acquittal, in a criminal case is
immediately final and executory upon its
A verbal order does not meet the requisites. As promulgation, and that accordingly, the State may not
such, it can be rescinded without prejudicing the seek its review without placing the accused in double
rights of the accused. It has no legal force and effect. jeopardy.

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Effect of Acquittal on Civil Liability It is the reading of the judgment or sentence in the
Acquittal of an accused based on reasonable ground presence of the accused and the judge of the court
does not bar the offended party from filing a separate who rendered it.
civil action based on a quasi-delict. In fact, the court
may hold an accused civilly liable even when it Rules on Promulgation of Judgment
acquits him. Judgment must be rendered and promulgated during
the incumbency of the judge who signed it
Section 3. Judgment for two or more offenses
The judgment must be read in its entirety for double
Prohibition on Duplicitous Information & Waiver jeopardy to attach
A complaint or information must charge only one
offense. However, if the accused does not object to The presence of counsel during promulgation is not
the duplicity before he enters his plea, he is deemed necessary
to have waived the defect. He may be found guilty
for as many offenses as alleged in the complaint or Generally, the accused must be present during
information as may have been duly proved. promulgation of judgment. (but see the following
exceptions to this general rule)
Maximum Sentence
In the service of sentence, the maximum duration of INSTANCES OF PROMULGATION IN ABSENCIA
the sentence shall not be more than 3-fold the time of 1. Judgment is for a light offense, in which case
the most severe penalty imposed, and such judgment may be promulgated in he presence
maximum shall in no case exceed 40 years. of counsel for the accused or a representative.
2. Accused fails to attend the promulgation
Section 4. Judgment in case of variance between despite due notice or if he jumped bail or
allegation and proof escaped form prison. Notice must be given to
Section 5. When an offense includes or is the bondsmen, warden, accused’s bailor and
included in another counsel.

GENERAL RULE: How Promulgation In Absencia is Conducted


The accused may only be convicted of a crime that is Promulgation shall be made by recording the
both charged and proved. judgment in the criminal docket and serving the
accused a copy thereof at his last known address or
EXCEPTION: If there is variance between the crime through his counsel.
charged and the crime proved the accused shall be
convicted of the offense proved which is included in If judgment is one of conviction and the accused is
the offense charged or of the offense charged which absent without justifiable cause, the court shall order
is included in the offense proved. his arrest and he shall lose the remedies available in
the Rules against the judgment.
In other words, if there is variance, the accused can
only be convicted of the lesser offense which is However, the accused may surrender and file a
included in the graver offense. motion for leave of court to avail of these remedies
within 15 days from promulgation of judgment. If such
Inclusion of Offenses motion is granted, he may avail of these remedies
An offense charged necessarily includes the offense within 15 days from notice of such order granting the
proved when some of the essential elements or motion.
ingredients of the formerQuickTime™
constituteand a
the latter.
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are needed to see this picture.
Section 7. Modification of judgment
An offense charged is necessarily included in the
offense proved, when the essential ingredients of the Upon motion of the accused, a judgment of
former constitute or form part of those constituting the conviction may be modified or set aside before it
latter. becomes final or before appeal is perfected.

Section 6. Promulgation of judgment NOTE: The prosecutor cannot ask for the
modification of the judgment, because the rules are
PROMULGATION OF JUDGMENT IN CRIMINAL clear that modification is only upon motion of the
CASES accused

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FINALITY OF JUDGMENT PROBATION


1. After the lapse of the period for perfecting The period to file an application for probation is after
an appeal; or the accused shall have been convicted by the trial
2. When the sentence has been partially or court and within the period for perfecting an appeal.
totally satisfied or served; or
3. When the accused has waived in writing his Probation is a mere privilege and is revocable before
right to appeal; or final discharge of the probationer by the court.
4. Accused has applied for probation.
NOTE: When the Death Penalty is imposed by the The basis of the coverage of the Probation Law is
trial court, the SC automatically reviews the decision. gravity of the offense. Fixing the cut-off at a
maximum term of 6 years imprisonment is based on
Modification of Civil Aspect of Case the assumption that those sentenced to higher
The trial court may validly modify the civil aspect of penalties pose too great a risk to society, not just
its decision within 15 days from promulgation thereof because of their demonstrated capability for serious
even though an appeal from the judgment had wrongdoing but because of the gravity of serious
already be perfected by the accused consequences of the offense they might further
commit.
WHEN TRIAL COURT MAY LOSE JURISDICTION
EVEN BEFORE LAPSE OF 15 DAYS OFFENDERS DISQUALIFIED FROM PROBATION
1. defendant voluntarily submits to the execution 1. Those sentenced to serve a maximum term of
of the judgment imprisonment of more than 6 years
2. defendant perfects an appeal 2. Those charged with subversion or any crime
3. defendant withdraws his appeal against national security or public order
4. accused expressly waives in writing his right to 3. Those previously convicted by final judgment
appeal of an offense punished by imprisonment not
5. accused files for probation less than 1 month and 1 day and/or a fine not
less than P200
Section 8. Entry of judgment 4. Those who have been once on probation
5. Those who are already serving sentence at the
How Entry of Judgment is Made time the Probation Law of 1976 became
The recording of the judgment or order in the book of applicable
entries of judgments shall constitute its entry. The
record shall contain the dispositive portion or order WHEN THE COURT SHOULD DENY PROBATION
and shall be signed by the clerk of court with a 1. Offender is in need of treatment that can be
certificate that such judgment or order has become provided most effectively by his commitment to
final and executory. an institution
2. There is an undue risk that offender will
MITTIMUS commit another crime during the period of
It is a process issued by the court after conviction to probation
carry out the final judgment. 3. When probation will depreciate the
seriousness of the crime
Section 9. Existing provisions governing
suspension of sentence, probation and parole not SENTENCE IMPOSED PERIOD OF PROBATION
affected by this Rule Not more than 1year Not more than 2 years
QuickTime™ and a More than 1 year Not more than 6 years
EXCEPTIONS FOR SUSPENSION
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are needed to see this picture.
OF SENTENCE Fine only, but offender At least equal to the
OF YOUTHFUL OFFENDERS serves subsidiary number of days of
1. offender has enjoyed previous suspension of imprisonment subsidiary imprisonment
sentence but not more than twice
2. offender is convicted of crime punishable by such period
death or life imprisonment
3. offender is convicted by a military tribunal
4. offender is already of age at the time of
sentencing even if he was a minor at the time RULE 121
of the commission of the crime NEW TRIAL OR RECONSIDERATION

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time of its time of its


Section 1. New trial or reconsideration filing until filing until
notice of the notice of
NEW TRIAL order the order
The rehearing of a case already decided but before overruling overruling
the judgment of conviction therein rendered has the motion the motion
become final, whereby errors of law or irregularities shall have shall have
are expunged from the record or new evidence is been served been
introduced or both steps are taken. upon the served
accused or upon the
NEW TRIAL RECONSI REOPENI REOPENI his counsel. accused or
DERATIO NG OF NG OF his
N TRIAL CASE counsel.
Proper only may be may be made by
AFTER filed in properly the court Once the appeal is perfected, the trial court steps out
rendition or order to presented before of the case and the appellate court steps in. When
promulgatio correct only after judgment new material evidence has been discovered, the
n of errors of either both is accused may file a motion for new trial with the
judgment law or fact parties rendered appellate court.
(15 days in have in the
from judgment; formally exercise of TRIAL COURT LOSES JURISDICTION OVER ITS
promulgatio does not offered sound SENTENCE EVEN BEFORE THE LAPSE OF 15
n of require and closed discretion DAYS
judgment) any further their
proceedin evidence 1. when the defendant voluntarily submits to
g. BUT the execution of the sentence
BEFORE 2. when the defendant perfects his appeal.
judgment
requires Judgment possible to does not The moment the appeal is perfected the court a quo
consent of will be have trials require the loses jurisdiction over it, except for the purpose of
the accused based on or consent of correcting clerical errors
the hearings the
pleadings or accused Section 2. Grounds for new trial
submitted reception
by the of justice GROUNDS FOR A NEW TRIAL IN CRIMINAL
parties in order to CASES
avoid 1. errors of law or irregularities prejudicial to the
miscarriag substantial rights of the accused have been
e of justice committed during the trial (errors of law or
made at the may be irregularities)
instance of made at 2. new and material evidence discovered which
the accused the the accused could not with reasonable
or upon the instance of diligence have been discovered and produced
initiative of either at the trial and which if introduced and
the court but party who admitted would probably change the judgment
with the QuickTime™ and a can (newly discovered evidence)
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consent of are needed to see this picture. thereafter 3. other grounds which the court may determine
the accused present in the exercise of its discretion
additional
evidence REQUISITES BEFORE A NEW TRIAL MAY BE
Interrupts interrupts GRANTED ON THE GROUND OF NEWLY
the period the period DISCOVERED EVIDENCE
for for 1. that the evidence was discovered after trial
perfecting perfecting 2. that such evidence could not have been
an appeal an appeal discovered and produced at the trial even with
from the from the the exercise of reasonable diligence

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3. that it is material, not merely cumulative, grant by the court of reconsideration should require
corroborative, or impeaching no further proceedings, such as taking of additional
4. the evidence is of such weight that it would proof.
probably change the judgment if admitted
Section 4. Form of motion and notice to the
Mistake of counsel generally binds the client and is prosecutor.
not a ground for new trial EXCEPT when the
incompetence of the counsel is so great that the FORM OF MOTION FOR NEW TRIAL OR
defendant is prejudiced and prevented from fairly RECONSIDERATION
presenting his defense and where the error of
counsel is so serious. 1. in writing
2. filed in court
Recantation is the public and formal withdrawal of a 3. state the grounds on which it is based
witness of his prior statement. It is not a ground for 4. if based on newly discovered evidence (for
new trial because it makes a mockery of the court new trial), must be supported by affidavits of
and would place the investigation of truth at the witnesses by whom such evidence is expected
mercy of the unscrupulous witness. Moreover, to be given or authenticated copies of
retractions are easy to extort out of witness. In documents to be introduced in evidence
contrast, their statements are made under oath, in
the presence of judge, and with the opportunity to Notice of the motion for new trial or reconsideration
cross-examine. should be given to the prosecutor.

EXCEPT when aside from the testimony of the Upon receipt of the motion for new
retracting witness, there is no other evidence to trial/reconsideration, the court should conduct a
support the conviction of the accused. In this case, hearing regarding the motion in order to determine
the retraction by the sole witness creates a doubt in the merits of the motion.
the mind of the judge as to the guilt of the accused
While the rule requires that an affidavit of merits be
RECANTATION AFFIDAVIT OF attached to support a motion for new trial based on
DESISTANCE newly discovered evidence, the defect or lack of it
A witness who The complainant may be cured by testimony under oath of the
previously gave a states that he did not defendant at the hearing of the motion (Paredes v
testimony subsequently really intend to Borja, 3 SCRA 495).
declares that his institute the case and
statements were not true that he is no longer Section 5. Hearing on motion
interested in testifying
or prosecuting The purpose of hearing is to determine whether the
It is a ground for new trial is requested should be granted or not.
dismissing the case
only if the prosecution Section 6. Effects of granting a new trial or
can no longer prove reconsideration
the guilt of the
accused beyond EFFECTS OF GRANTING A NEW TRIAL OR
reasonable doubt RECONSIDERATION
without the testimony a. When a new trial is granted on the ground of
of
QuickTim e™the
and a offended party
errors of law or irregularities committed during
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are needed to see this picture.
the trial, all proceedings and evidence affected
Section 3. Ground for reconsideration thereby shall be set aside and taken anew.
The court may, in the interest of justice, allow
GROUNDS FOR RECONSIDERATION the introduction of additional evidence.
1. errors of law b. When a new trial is granted on the ground of
2. errors of fact in judgment newly-discovered evidence, the evidence
already adduced shall stand and the newly-
The principle underlying this rule is to afford the trial discovered and such other evidence as the
court the opportunity to correct its own mistakes and court may, in the interest of justice, allow to be
to avoid unnecessary appeals from being taken. The introduced shall be taken and considered

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together with the evidence already in the Appeals in criminal cases are perfected when the
record. interested parties have personally or through their
c. In all cases, when the court grants new trial or counsel filed with the clerk of court a written notice
reconsideration, the original judgment shall be expressly stating the appeal. (U.S. vs. Tenorio, 37
set aside or vacated and a new judgment Phil 7; Elegado vs. Tavora, 59 Phil. 140)
rendered accordingly.
When an appeal has been perfected, the court a quo
The effect of the granting a new trial is not to acquit loses jurisdiction.
the accused of the crime of which the judgment finds
him guilty but precisely to set aside said judgment so Effect of an Appeal
that the case may be tried de novo as if no trial had An appeal in a criminal case opens the whole case
been conducted before. for review. This includes the review of the penalty,
indemnity, and the damages involved.
Unlike the rule in civil cases, the remedy of the
aggrieved party being appeal in due time, an order Only final judgments and orders can be appealed.
granting a new trial rendered in criminal cases is also
interlocutory BUT is controllable by certiorari or APPEAL OF A APPEAL OF AN
prohibition at the instance of the prosecution. JUDGMENT ORDER
Must be perfected within Must be perfected
15 days from within 15 days from
promulgation notice of the final
RULE 122 order
APPEAL
Section 2. Where to appeal
Section 1. Who may appeal. Section 3. How appeal taken

APPEAL FROM DECISION OF APPEAL HOW


A proceeding for review by which the whole case is TO
transferred on the higher court MTC, from a case CA File a notice of
decided in its original appeal with the
Appeal is not a part of due process except when jurisdiction MTC and serve
provided by law or by the Constitution. a copy of the
notice to the
It is statutory and must be exercised in accordance adverse party
with the procedure laid down by law. RTC in the exercise CA File a notice of
of its original appeal with the
It is compellable by mandamus. jurisdiction for an RTC and serve a
imposed penalty less copy of the
GENERAL RULE: than reclusion notice to the
An appeal by the prosecution from the order of perpetua, life adverse party
dismissal is not allowed because it will violate the rule imprisonment (and
on double jeopardy. death)
RTC in the exercise CA File a petition for
EXCEPTIONS: of its appellate review with the
1. The dismissal is made upon the motion or with jurisdiction CA under Rule
the express consent of the defendants
QuickTime™ and a 42
2. The dismissal is not an
TIFF (Uncompressed) acquittal or based upon
decompressor
are needed to see this picture. RTC where the CA Automatic
consideration of the evidence or the merits of penalty imposed is review
the case reclusion perpetua of
3. Question to be passed upon by the appellate life imprisonment, OR
court is purely legal so that should the where a lesser
dismissal be found incorrect, the case would penalty is imposed for
be remanded to the court of origin for further offenses committed
proceedings on the same occasion
or which arose out of
the same occurrence

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that gave rise to the EXCEPTION:


offense punishable by The civil award in a criminal case may be appealed
(death) reclusion by the private prosecutor on behalf of the offended
perpetua or life party or his successors.
imprisonment
All other appeals SC Petition for MODES OF REVIEW
review on The Rules of court recognizes 4 modes by which the
certiorari under decision of the final order of the court may be
Rule 45 reviewed by a higher tribunal
Sandiganbayan SC Petition for 1. ordinary appeal
review on 2. petition for review
certiorari under 3. petition for review on certiorari
Rule 45 4. automatic appeal
Sandiganbayan in its SC Automatic
original jurisdiction review Section 4. Publication of notice of appeal
where penalty
imposed is (death) SERVICE OF NOTICE OF APPEAL
reclusion perpetua SERVICE BY SUBSTITUTED PUBLICATION
Sandiganbayan in its SC File a notice of REGISTERED SERVICE OF NOTICE
appellate jurisdiction appeal MAIL OF APPEAL
where penalty By depositing delivering the made in a
imposed is (death), the copy in the copy to the newspaper of
reclusion perpetua, or post office clerk of court general
life imprisonment -in a sealed with proof of circulation in
envelope failure of both the vicinity
FROM A JUDGMENT CONVICTING THE -plainly personal once a week
ACCUSED, TWO APPEALS MAY ACCORDINGLY addressed to service and for a period not
BE TAKEN: the party or service by mail exceeding 30
1. The accused may seek a review of said his counsel at days
judgment as regards both civil and criminal his office, if
actions known,
2. The complainant may appeal only with respect otherwise at
to the civil action either because the lower his residence
court has refused or failed to award damages if known
or because the award made is unsatisfactory -with postage
to him fully pre-paid
-and with
A judgment of acquittal becomes final immediately instructions to
after promulgation. It cannot even be the subject of the post
certiorari. master to
return the mail
The reason for this rule is that an appeal would place to the sender
the accused in double jeopardy. However, the after 10 days
offended party may appeal the civil aspect of the if undelivered
case.
QuickTime™ and a Section 5. Waiver of notice
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GENERAL RULE: are needed to see this picture.
A private prosecutor in a criminal case has NO The appellee may waive his right to notice of appeal.
authority to act for the People of the Philippines However, the appellate court may, in its discretion,
before a court on appeal; it is the government’s entertain an appeal notwithstanding failure to give
counsel, the Solicitor General who appears in such notice if the interests of justice so require
criminal cases or their incidents before the Supreme (Llamas vs. Muscoso, 95 Phil. 735).
Court. At the very least, the Provincial Fiscal himself,
with the conformity of the Solicitor General shall act Section 6. When appeal to be taken
for the People of the Philippines.

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Appeal is taken within 15 days from promulgation of Section 12. Withdrawal of appeal
the judgment. This period shall be suspended from
the time a motion for new trial or reconsideration is An appellant may withdraw his appeal before the
filed until notice of overruling the motion has been record has been forwarded by the clerk of court of the
served upon the accused at which time the balance proper appellate court as provided by Sec. 8 in which
of the period begins to run. case the judgment shall become final.

The period of appeal seems to have been amended The court may also, in its discretion, allow the
by the SC ruling in Domingo Neypes et.al., vs CA, appellant to withdraw his appeal, provided a motion
et.al, G.R. No. 141524 Sept. 24, 2005 (469 SCRA to that effect is filed before the rendition of judgment
633). “To standardize the appeals period provided in in the case on appeal (People v. Madrigal-Gonzales,
the Rules and to afford litigants fair opportunity to 117 SCRA 956).
appeal their cases, the court deems it practical to
allow a fresh period rule of 15 days within which to Once appeal is withdrawn, the decision or judgment
file the notice of appeal on the RTC, counted from the appealed from becomes at once final and executory.
receipt of the order dismissing a motion for new trial (People v. Dueño, 90 SCRA 23).
or motion for reconsideration.
Section 13. Appointment of counsel de oficio for
NOTE: Although the SC has made this ruling on a accused on appeal
civil case, it is submitted that if the court has applied
this rule to all other appeals involving civil cases, with The duty of the counsel de oficio does not terminate
more reason should the defendant in a criminal case upon judgment of the case. It continues until appeal.
be given ample time to file his appeal (Sabio, Jose L.
Criminal Procedure Rules 110-127, p 228)

Section 7. Transcribing and filing notes of RULE 123


stenographic reporter upon appeal PROCEDURE IN MUNICIPAL TRIAL COURTS
Section 8. Transmission of papers to appellate
court upon appeal Section 1. Uniform procedure

Within 5 days from the filing of the notice of appeal, GENERAL RULE
the clerk of court with whom the notice of appeal was The procedure in the Regional Trial Court shall be
filed must transmit to the clerk of court of the applicable to the procedure in Metropolitan Trial
appellate court the complete record of the case Courts, Municipal Trial Courts, and Municipal Circuit
together with said notice. Trial Court.

Section 9. Appeal to the Regional Trial Courts EXCEPTIONS


Section 10. Transmission of records in case of 1. Particular provision is made applicable only to
death penalty either of such courts
Section 11. Effect of appeal by any of several 2. In cases governed by the Rule on Summary
accused Procedure

Effects of Appeal by Any of the Accused


An appeal taken by one or more of the several
accused shall not affect those who did not appeal RULE 124
except insofar as the judgment of the appellate court
QuickTime™ and a
PROCEDURE IN THE COURT OF APPEALS
is favorable and applicable to
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COURT OF APPEALS
The appeal of the offended party from the civil aspect The Court of Appeals has no jurisdiction without
shall not affect the criminal aspect of the judgment or judgment of conviction.
order appealed from.
The Court of Appeals shall give precedence in the
Upon perfection of the appeal, the execution of the disposition of appeals of accused who is under
judgment or final order appealed from shall be stayed detention. It shall hear and decide the appeal at the
as to the appealing party. earliest practicable time with due regard to the rights
of the parties.

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Rights of Accused Appellant Section 6. Form of briefs


An accused-appellant may change his theory on Section 7. Contents of brief
appeal; thus the case opens the whole action for
review on any questioning including those not raised Unlike in civil actions, it is not necessary for the
by the parties. appellant to make assignment of errors in his brief, as
on appeal, the whole record of the case is submitted
When the accused appeals a judgment of conviction, to and reviewable by the appellate court.
he waives the constitutional safeguard against double
jeopardy; but every circumstance in favor of the Section 8. Dismissal of appeal for abandonment
accused should be considered. or failure to prosecute

Section 1. Title of the case


Section 2. Appointment of counsel de oficio for GROUNDS FOR DISMISSAL OF APPEAL
the accused 1. Failure on the part of the appellant to file his
brief within the reglementary period, except
WHEN ACCUSED MAY BE GIVEN COUNSEL DE when he is represented by counsel de oficio
OFICIO ON APPEAL 2. Escape of the appellant from prison
1. accused is confined in prison 3. Appellant jumps bail
2. he is without counsel de parte on appeal 4. Flight of the appellant to a foreign country
3. he signed the notice of appeal himself during the pendency of the appeal

An appellant who is not confined in prison may NOTE: Ground (1) is deemed abandonment of
request for counsel de oficio within 10 days from appeal, grounds (2) (3) (4) are deemed failure to
receipt of notice to file appellant’s brief and the right prosecute
thereto is established by affidavit
EFFECT OF FAILURE TO PROSECUTE APPEAL
Section 3. When brief for appellant to be filed 1. judgment of the court below becomes final
2. accused cannot be afforded the right to appeal
7 copies of the brief shall be filed within 30 days from unless
receipt by the appellant or his counsel of the notice a. he voluntarily submits to the jurisdiction of
from the clerk of court that the evidence, oral and the court or
documentary, are already attached to the record. b. he is otherwise arrested within 15 days
from notice of judgment against him
BRIEF
It literally means a short or condensed statement. Section 9. Prompt disposition of appeals
The purpose of the brief is to present to the court in
concise form the points and questions in controversy, It is discretionary on the appellate court whether it will
and by fair argument on the facts and law of the order a hearing of the case or decide the appeal
case, to assist the court in arriving at a just and solely on the evidence submitted to the trial court. If
proper conclusion. the CA chooses not to conduct a hearing, the justices
composing the division deliberate on the case,
Section 4. When brief for appellee to be filed; evaluate the evidence and then decide.
reply brief of appellant
Section 10. Judgment not to be reversed or
The appellee shall file 7QuickTime™
copiesandof a
the brief with the modified except for substantial error
clerk of court within 30 days
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receipt of the
appellant’s brief accompanied by proof of service of 2 Judgment of the lower courts shall be reversed or
copies thereof to the appellant. modified only when the Court of Appeals is of the
opinion that error was committed which injuriously
Section 5. Extension of time for filing briefs affected the substantial rights of the appellant after it
examined the record and evidence adduced by the
Generally not allowed except for good and sufficient parties.
cause and only if the motion for extension is filed
before the expiration of the period sought to be Although not often done in the judicial system, the
extended. case of People v. Calayca states that the appellate

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court may reverse the trial court’s decision on the certified and immediately elevated to the Supreme
basis of grounds other than those that the parties Court for review.
raised as errors.
Section 14. Motion for new trial
Section 11. Scope of judgment Section 15. Where new trial conducted

SCOPE OF JUDGMENT OF CA The appellant may move for a new trial any time after
1. reverse, affirm or modify the judgment the appeal from the lower court has been perfected
2. increase or reduce the penalty imposed and before the judgment of the Court of Appeals
3. remand the case to the trial court for new trial convicting him becomes final.
or retrial
4. dismiss the case Section 16. Reconsideration

NOTE: CA cannot revise the judgment because this A motion for reconsideration shall be made within 15
would violate the rule that the judge must write the days after notice of the decision or final order of the
decision personally. Court of Appeals.

Modify vs Revise Section 17. Judgment transmitted and filed in trial


In modifying the decision, the CA bases its court
modification on errors of law or fact. In revision, the
court merely changes manner the decision is written. When the entry of judgment of the Court of Appeals
is issued, a certified true copy of the judgment shall
Section 12. Power to receive evidence be attached to the original record which shall be
remanded to the clerk of court from which the appeal
POWERS OF THE CA was taken.
1. to try cases and conduct hearings
2. to receive evidence Section 18. Application of certain rules in civil
3. to perform any and all acts necessary to procedure to criminal cases
resolve factual issues raised in cases:
a. falling within its original and appellate NOTE: Rule 47 does NOT APPLY TO CRIMINAL
jurisdiction ACTIONS. The proper remedy for lack of jurisdiction
b. claims for damages arising from provisional or extrinsic fraud is certiorari (Rule 65) or Habeas
remedies Corpus ( Rule 102)
c. where the court grants a new trial based
only on the ground of newly discovered
evidence
RULE 125
Section 13. Certification or appeal of case to the PROCEDURE IN THE SUPREME COURT
Supreme Court
Section 1. Uniform procedure
Three Justices constitute a quorum for the sessions
of a division Procedure in the SC in appealed cases is the same
as in the CA, unless otherwise provided by the
Unanimous vote of the 3 Justices of a division shall Constitution or law.
be necessary to pronounce a judgment or a final
resolution. In the eventQuickTime™
that there and a
is no unanimous Appeal the SC is not a matter of right, but a matter of
vote, the Presiding Justice
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are needed to see this picture.
direct the raffle sound judicial discretion
committee of the Court to designate two additional
Justices in the division hearing the case and the A direct appeal to the SC on questions of law – in
concurrence of a majority of such division shall be cases where the penalty imposed is not reclusion
necessary for the pronouncement pf a judgment or perpetua or death – precludes a review of the facts.
final order.
Section 2. Review of decisions of the Court of
Should the Court of Appeals impose the penalty of Appeals
death, reclusion perpetua, or life imprisonment after
discussing the evidence and law involved, the case is

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INSTANCES WHEN FINDINGS OF FACTS OF CA c. It is not for the maintenance of any private
ARE NOT CONCLUSIVE ON SC right.
1. the finding is grounded entirely on speculation, d. It is INTERLOCUTORY in character – it leaves
conjectures and surmises something more to be done, the determination
2. when the inference made is manifestly absurd, of the guilt of the accused
mistaken or impossible
3. when there is grave abuse of discretion in the GENERAL WARRANT
appreciation of facts It is a process which authorizes the search and
4. judgment is premised on a misapprehension of seizure of things, in a general manner. It does not
facts specify or describe with particularity the things to be
5. findings of facts are conflicting searched and seized. This kind of warrant is VOID
6. when the CA went beyond the issues of the as it infringes on the constitutional mandate requiring
case and the same is contrary to the particular description of the things to be seized.
admissions of both appellant and appellee
7. when certain material facts had been Object of a Search Warrant
overlooked which, if taken into account would To obtain the goods, and bring the person in whose
alter the result as it would give rise to custody they are found, either to be recognized as a
reasonable doubt to acquit the accused. witness or to be subject to such further proceedings
as the ends of justice may require.
Section 3. Decision if opinion is equally divided
A search warrant must conform strictly to the
A criminal case shall be reheard by the Supreme requirements of the constitutional and statutory
Court en banc when the court en banc is equally provisions under which it is issued, otherwise it is
divided in the opinion or the necessary majority VOID
cannot be had. If no decision is reached, the
conviction of the lower court shall be reversed and It will always be construed strictly without going the
the accused acquitted. full length of requiring technical accuracy.

No presumptions of regularity are to be invoked in aid


of the process when an officer undertakes to justify
RULE 126 under it.
SEARCH AND SEIZURE
Garaygay v. People, G.R. No. 138758 (2000)
Section 1. Search warrant defined Where a search warrant is issued by one court
and the criminal action based on the results of the
SEARCH WARRANT search is afterwards commenced in another court, a
An order in writing signed by judge in the name of the motion to quash the warrant/to retrieve things
People of the Philippines commanding a peace thereunder seized may be filed for the first time in
officer to search for personal property and bring it either the issuing court or that in which the criminal
before the court. action is pending. However, the remedy is alternative,
not cumulative.
ELEMENTS OF A SEARCH WARRANT
1. order in writing People v. Ko, G.R. No. 133254-55 (2001)
2. signed by judge in the name of the People of The Dangerous Drugs Act of 1972 is a special
the Philippines law that deals specifically with dangerous drugs
3. commanding a peace
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and a
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to search for which are subsumed into “prohibited” and “regulated”
personal property
are needed to see this picture. drugs and defines and penalizes categories of
4. to bring the property before the court offenses which are closely related or which belong to
the same class or species. Accordingly, one search
NATURE OF A SEARCH WARRANT warrant may thus be validly issued for the said
a. It is in the nature of a criminal process and violations of the Dangerous Drugs Act.
may be invoked only in furtherance of public
prosecutions. It has no relation to civil
processes or trials SEARCH WARRANT WARRANT OF
b. It is not available to individuals in the course of ARREST
civil proceedings;

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The applicant must The applicant must GENERAL RULE:


show: show: It should be filed with the court within whose territorial
1. that the items 1. probable cause that jurisdiction the crime was committed.
sought are in fact an offense has been
sizeable by virtue of committed; EXCEPTIONS:
being connected with 2. that the person to 1. for compelling reasons, it can be filed with the
criminal activity; be arrested committed court within whose judicial region the offense
2. that the items will be it. was committed or where the warrant is to be
found in the place to served.
be searched. 2. But if the criminal action has already been
The judge must The judge need not filed, the application for a search warrant can
conduct a personal, conduct a personal only be made in the court where the criminal
searching examination of the action is pending.
examination of the applicant and his
applicant and his witnesses. He may Section 3. Personal property to be seized
witnesses rely on the affidavits of
the witnesses and the KINDS OF PERSONAL PROPERTY TO BE
recommendation of the SEIZED:
prosecutor. 1. Subject of the offense;
Valid only for 10 days Does not become stale 2. Proceeds or fruits of the offense; and
May be served on any To be served only 3. The means used or intended to be used for
day and at any time of during the daytime, committing an offense
day or night unless affidavit alleges
that the property is on SEARCH WARRANTS HAVE BEEN ALLOWED TO
the person or in the SEARCH FOR THE FF:
place to be searched 1. Stolen goods
2. Those supposed to have been smuggled into
In general, the requirements for the issuance of a the country in violation of the revenue laws
search warrant is more stringent than the 3. Implements of gaming and counterfeiting
requirements for the issuance of a warrant of 4. Lottery tickets
arrest. The violation of the right to privacy produces 5. Prohibited liquors kept for sale contrary to law
a humiliating effect which cannot be rectified 6. Obscene books and papers kept for sale or
anymore. This is why there is no other justification for circulation
a search, except a warrant. On the other hand, in a 7. Powder and other explosive and dangerous
warrant of arrest, the person to be arrested can materials so kept as to endanger public safety
always post bail to prevent the deprivation of liberty. 8. Slot machines, being gambling devices

SEARCH Notes on Seizure of Personal Property:


It is an examination of a man’s house, buildings or Property seized is not required to be owned by the
other premises, or of his person, with a view to the person against whom the search warrant is directed
discovery of some evidence of guilt to be used in the
prosecution of a criminal action for some offense with It is not necessary that there be arrest or prosecution
which he is charged. before seizure could be affected

SEIZURE The fact that a thing is a corpus delicti of a crime


It is the physical taking of aand thing
QuickTime™ a into custody; does not justify the seizure without a warrant
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contemplates a forcible disposition
are needed of the owner
to see this picture.
Section 4. Requisites for issuing search warrant
Note: A search warrant to be valid requires strict Section 5. Examination of complainant; record
compliance with the Constitution. Section 2 Article III
of the 1987 Constitution is the constitutional basis of REQUISITES FOR ISSUING A SEARCH
the rule on search and seizure WARRANT
1. there must be probable cause
Section 2. Court where application for search 2. which must be determined personally by the
warrant shall be filed judge

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3. upon personal examination in writing and The examination must be probing and exhaustive,
under oath of the complainant and his not merely routinary or pro forma
witnesses in the form of probing and
searching questions and answers on facts The questions must not merely be answerable by yes
personally known to them or no.
4. the probable cause must be in connection
with one specific offense Answers given cannot be based merely on reliable
5. particularly describing the place to be information.
searched and the items to be seized
6. the sworn statements together with the Application for a search warrant is heard ex-parte,
affidavits of the witnesses must be attached to there is neither a trial nor a part of the trial.
the record.
Test to determine if an affidavit or testimony of the
PROBABLE CAUSE (IN GENERAL) witness is based on personal knowledge is whether
Such facts and circumstances antecedent to the perjury could be charged against the witness.
issuance of the warrant, that are in themselves
sufficient to induce a cautious man to believe that the Probable Cause Must be in Connection with One
person against whom the search warrant is applied Specific Offense
had committed or is about to commit a crime The purpose of this rule is to outlaw general
warrants. Otherwise, this would place the sanctity of
PROBABLE CAUSE FOR A SEARCH the domicile and the privacy of communication and
It is defined as such facts and circumstances which correspondence at the mercy of the whims, caprice
would lead a reasonably discreet and prudent man to or passion of peace officers.
believe that an offense has been committed and that
the objects sought in connection with the offense are A warrant issued for the seizure of drugs connected
in the place sought to be searched. with “violation of the Dangerous Drugs Law” is valid.
Although there are many ways of violating the
Determination of Probable Cause Dangerous Drugs Law, it is not a scatter shot warrant
Probable cause presupposes the introduction of since it is in connection with only one penal law.
competent proof that the party against whom it is
sought has performed particular acts or committed SCATTER SHOT WARRANT
specific omissions violating a given provision of our It is a warrant that is issued for more than one
criminal laws. offense. It is void, since the law requires that a
warrant should only be issued in connection with one
Probable cause is determined in the light of the specific offense.
conditions obtaining in given situations, but there is
no general formula or fixed rule for the determination Particularity of Description
of the existence of probable cause. The warrant must particularly describe the place to
be searched and the persons or things to be seized;
A good and practical rule of thumb is to measure the
nearness of time given in the affidavit as to the date The constitution requires that it be a description
of the alleged offense, and the time of the making the which particularly points to a definitely ascertainable
affidavit. The nearer the time at which the place, so as to exclude all others.
observation of the offense is alleged to have been
made, the more reasonable the conclusion of The description must be so particular that the officer
establishment of probable cause
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charged with the execution of the warrant will be
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left with no discretion respecting the property to be
REQUISITES OF PERSONAL EXAMINATION BY taken.
THE JUDGE
1. The judge must examine the witnesses It may be said that the person to be searched is
personally particularly described in the search warrant when his
2. It must be under oath name is stated in the search warrant, or if the name
3. Examination must be reduced to writing in is unknown, he is designated by words sufficient to
the form of probing and searching questions. enable the officer to identify him without difficulty.

Probing and Searching Questions

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Search warrant is severable, and those items not Section 8. Search of house, room, or premises to
particularly described may be cut off without be made in presence of two witnesses
destroying the whole warrant
In searching a house, room or other premises, such
if there’s an error in the warrant, the officers should shall be done in the presence of a lawful occupant or
go to the court to have it corrected any member of his family, or in the presence of at
least 2 witnesses of sufficient age and discretion,
Anything not included in the warrant cannot be seized residing in the same locality
EXCEPT if it is mala prohibita, in which case, the
seizure can be justified under the plain view doctrine. The searching officer should also be considerate of
Even if the object was related to the crime, but it is the premises searched; he should mar the premises
not mentioned in the warrant nor is it mala prohibita, as little as possible, and should carefully replace
it still cannot be seized. anything he finds necessary to remove.

Section 6. Issuance and form of search warrant Note: The 2 witnesses rule applies only if there is no
other occupant of the home
Form of Search Warrant
The search warrant must be in writing and must Section 9. Time of making search
contain such particulars as the name of the person
against whom it is to be enforced, offense for which it GENERAL RULE
was issued, place to be searched and the specific Warrant must be directed and served in the daytime
things to be seized
EXCEPTIONS:
Section 7. Right to break door or window to effect 1. if there are emergencies
search 2. property is on the person or place to
be searched
If the officer acts within the command of his warrant,
he is protected even if the complaint is proven to The general rule prohibits search in the night
have been unfounded. because sometimes robberies happen, under the
pretense of searches
KNOCK AND ANNOUNCE PRINCIPLE
GENERALLY, OFFICERS EXECUTING A SEARCH Section 10. Validity of search warrant
MUST DO THE FOLLOWING ACTS:
1. announce their presence A warrant is valid for ten days from its date. After
2. identify themselves to the accused and to the such time, it is VOID.
persons who rightfully have possession of the
premises to be searched A search warrant cannot be used everyday for 10
3. show to them the search warrant days, and for a different purpose each day – warrant
4. explain the warrant in a language or dialect used to seize one thing cannot be used as authority
known and understood by them to make another search

WHEN UNANNOUNCED INTRUSION IS This rule is NOT APPLICABLE when the search for a
PERMISSIBLE property mentioned in the warrant was not completed
1. person in premises refuses to open it upon on the day when the warrant was issued and had to
demand be continued the next day
2. person in the premises already knew of the
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Section 11. Receipt for the property seized
3. when officers have an honest belief that there Section 12. Delivery of property and inventory
is an imminent danger to life and limb thereof to court; return and proceedings thereon
4. when those in the premises, aware of the
presence of someone outside, are then Officer seizing the property under the warrant must
engaged in activities which justifies the officers give a detailed receipt for the same to the lawful
to believe that an escape or the destruction of occupant or any member of the family or at least 2
evidence is imminent witnesses of sufficient age and discretion residing in
the same locality. The property will then be held in
custodia legis

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2. person making the consent knows that he has


Section 13. Search incident to lawful arrest the right
3. in spite of knowledge of the right, he voluntarily
ALLOWABLE WARRANTLESS SEARCHES AND and intelligently gives consent
SEIZURES:
1. Incidental to lawful arrest Search of Moving Vehicles
2. Consented search (waiver of right) Vessels and aircrafts may be searched and seized
3. Search of moving vehicles without a warrant because a vessel can be quickly
4. Enforcement of customs laws moved out of the locality before a warrant could be
5. Checkpoints secured.
6. RA requiring inspections or body checks in
airports Validity of Checkpoints
7. When there are illegal articles open to the eye Checkpoints are not per se invalid provided that
and hand (plain view) searches conducted therein are limited to a mere
8. Stop-and-frisk situations cursory inspection (Valmonte case)
9. Emergency
10.Enforcement of health and sanitary laws UNREASONABLE SEARCH AND SEIZURE
It is such where it is not authorized by statute, or
REQUISIITES FOR PLAIN VIEW DOCTRINE where the conditions prescribed by the stature have
1. valid intrusion not been met.
2. item must be visible – seen without any further
search; e.g. in a transparent bag Rules on Reasonableness of Search
3. inadvertent discovery What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely a
Ex. police officer chasing a suspect, sees a box, judicial question
takes a peak and sees drugs
• can be seized because malum prohibitum but Such is determinable from a consideration of the
cannot be introduced as evidence because not circumstances involved, including the ff:
in plain view • The purpose of the search
• if detected through smell, not case of plain • Presence or absence of probable cause
view but probable cause • Manner in which the search and seizure was
• if detected by canines - as if police themselves made
have smelled it • Place or thing searched
• if police chases a person, accidentally hits a • Character of the articles procured.
jar, where drugs pour out – not plain view
Searches and seizure inside a home are
Searches Incident to Lawful Arrest presumptively unreasonable
This right includes searching the person who is
arrested, in order to find and seize the things Constitutional prohibition against unlawful searches
connected with the crime as its fruits or as the means and seizure applies as a restraint directed only
by which it was committed against the government and its agencies tasked with
the enforcement of the law. It could thus only be
Search made without a warrant cannot be justified as invoked against the State.
an incident of arrest unless the arrest itself was lawful
Who May Question the Validity of a Search
A search is not incidental to the
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TIFF (Uncompressed) decompressor
search is madeare needed at to see
the place of arrest,
this picture. party whose rights have been impaired thereby.
contemporaneously with the arrest.
The objection to an unlawful search and seizure is
The area that may be validly searched is limited to purely personal and cannot be availed by third
the area within the immediate control of the person parties.
arrested
The remedy for questioning the validity of a search
REQUISITES FOR VALID WAIVER OF RIGHT warrant can only be sought in the court that issued it,
(CONSENTED SEARCH) not in the sala of another judge of concurrent
1. right exists jurisdiction.

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2. Injunction (Rule 58)


Objections to the legality of the search warrant and to 3. Receivership (Rule 59)
the admissibility of the evidence obtained are 4. Replevin (Rule 60)
deemed waived when no objection to the legality of 5. Support Pendente Lite (Rule 61)
the search warrant was raised during the trial.
Purpose of Provisional Remedies
Section 14. Motion to quash a search warrant or Provisional remedies are applied pending litigation, to
suppress evidence; where to file secure the judgment or preserve the status quo

REMEDIES OF PARTY ADVERSELY AFFECTED If provisional remedies are applied for after judgment,
BY A SEARCH WARRANT: it is in order to preserve or dispose of the subject
1. Motion to quash the search warrant with the matter.
issuing court; or
2. Motion to suppress evidence with the court Although civil action is suspended until final judgment
trying the criminal case. in the criminal case, the court is not deprived of its
authority to issue preliminary and auxiliary writs
NOTE: These remedies are ALTERNATIVE, hence if which do not go into the merits of the case.
a motion to quash is denied, a motion to suppress Preliminary writs and auxiliary writs referred to are
evidence cannot be availed of subsequently those such as the ff:
• Preliminary injunction
NOTE: A third option would be to file an action for • Attachment
replevin if the properties seized were lawfully • Appointment of receiver
possessed. • Fixing amounts of bonds

The Moncado Ruling, saying that illegally seized Section 2. Attachment


documents, papers and things are admissible in
evidence has already been ABANDONED. ATTACHMENT
It is a remedy afforded to the offended party to have
The exclusion of such evidence is the only practical the property of the accused attached as security for
means of enforcing the constitutional injunction the satisfaction of any judgment that may be
against unreasonable searches and seizures. recovered from the accused

WHERE TO FILE MOTION TO QUASH WARRANT CASES WHERE ATTACHMENT IS AVAILABLE:


1. May be filed and acted upon ONLY by the 1. When action for recovery is on a cause of
court where the action has been instituted action arising from law, contract, quasi-
2. If not criminal action has been instituted, MTQ contract, delict, or quasi-delict and accused is
may be filed with the court who issued the about to abscond from the Philippines;
warrant. However, if such court failed to 2. When the criminal action is based on a claim
resolve the motion and a criminal action is for money or property embezzled or
subsequently filed in another court, the motion fraudulently misapplied or converted to the use
shall be resolved by the latter court of the accused who is a public officer, or any
officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his
employment as such, or by any person in a
RULE 127 fiduciary capacity, or for a willful violation of
PROVISIONAL REMEDIES IN CRIMINAL CASES
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are needed to see this picture. 3. When the accused has concealed, removed or
Section 1. Availability of provisional remedies disposed of his property or is about to do so;
4. When action is against a party guilty of fraud in
PROVISIONAL REMEDY contracting the debt upon which action is
It is one provided for present need or one that is brought, or in the performance of incurred
adopted to meet a particular exigency. obligation;
5. When action is against a party who removed or
PROVISIONAL REMEDIES UNDER THE RULES disposed of his property or is about to do so,
OF COURT: with intent to defraud his creditors; and
1. Attachment (Rule 57)

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6. When the accused resides outside the


Philippines

Mindanao Savings, etc. vs CA, 172 SCRA 480


(1989)
No notice to the adverse party or hearing on the
application is necessary before a writ of preliminary
attachment may issue.

This may be filed at the commencement of a criminal


action or at any time before entry of judgment as
security for the satisfaction of any judgment that may
be recovered in the aforementioned cases.

Public prosecutor has the authority to apply for


preliminary attachment as may be necessary to
protect the interest of the offended party.

QuickTime™ and a
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are needed to see this picture.

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