NOTES ON

CRIMINAL PROCEDURE
(Part One)
===========================================
=================
Prefatory Statement
The Philippine Legal system is generally classifed into the
substantive laws and the adjective or remedial laws. The substantive
laws are comprised of the Constitution and the statutes enacted by
Congress, although there are some legislative enactments which are
procedural in nature, notably the Land Registration Law. ubstantive
laws in general defne and prescribe the rights and duties of persons
towards the tate, and vice!versa, and towards one another.
"djective laws, on the other hand, refer to the Rules of Court and
the issuances of the upreme Court, promulgated pursuant to its rule
ma#ing power under "rticle $%%%, ection &'&( of the Constitution.
Remedial laws provide the procedure and mode how the rights and
duties defned and prescribed by the substantive laws are enforced and
implemented. Procedural laws are adopted not as ends in themselves
but as means conducive to the reali)ation of justice.
*
The Rules of Court
The Rules of Court is the principal source which governs the
procedure to be observed in civil actions, criminal actions and special
proceedings. %t also provides for the rules on evidence, and the
admission to the practice of law in the Philippines.
ran!hes of Reme"#al La$
The Rules of Court have fve branches. These are+

*. The Rules which govern civil actions. %t is one by which a
person sues another for enforcement or protection of a right, or
prevention or redress of a wrong. " civil action may either be ordinary
or special, but both are principally governed by the rules prescribed for
1
DOJ v. Liwag, 451 SCRA 83.
ordinary civil action, subject to the specifc rules prescribe for special
civil action. 'Rule*, ec. ,!a(
-. The rules on criminal action prescribe the procedure by which
the tate prosecutes a person for an act or omission punishable by law.
'%bid.(
,. pecial proceedings refer to the remedies by which a party
see#s to establish a status, a right, or a particular fact. '%bid.(
.. The rules on evidence provide for the means sanctioned by the
Rules of Court of ascertaining in a judicial proceeding the truth
respecting a matter of fact. 'ec. *, Rule *-/.(
&. The rules which prescribe the procedure for admission to the
practice law in the Philippines, and the canons of judicial and legal
ethics.
The Rules on Cr#m#nal Pro!e"ure
The Rules on Criminal Procedure are comprised of from Rule **0
to Rule *-1, inclusive
Su%stant#&e as#s of the Rules of Cr#m#nal Pro!e"ure
ection *, "rticle %%% of the l2/1 Constitution states+ 34o persons
shall be deprived of life, liberty or property without due process of law,
nor shall any persons be denied the e5ual protection of the law.6
l
Con!e't of Due Pro!ess of La$
7ue process of law has been conceived with two aspects+ '*(
substantive due process, and '-( procedural due process.
ubstantive due process prescribes the following elements+ '*(
that there shall be a law enacted in harmony with general powers of the
legislative department of the 8overnment9 '-( that this law shall be
reasonable in its operation 9 ',( that it shall be enforced according to the
2
regular methods of procedure prescribed9 and '.( that it shall be
applicable ali#e to all persons or to all types of cases.
-

Procedural due process re5uires the following minimum
conditions+ '*( there must be a court or tribunal 'board( clothed with
the power to hear and determine the matter before it9 '-( jurisdiction
must be lawfully ac5uired over the person of the parties or over the
property subject of the proceedings9 ',( the parties must be notifed of
the fact of the controversy9 '.( they should be given the opportunity to
be heard and adduce evidence in support of their respective claims9 '&(
the court or tribunal hearing the case must consider the evidence
presented9 and ':( judgment should be rendered based on the evidence
presented at the hearing and stating the reasons for the decision
rendered.
,

CRIMINAL (URISDICTION O) COURTS

Con!e't

Criminal jurisdiction refers to the authority of the court to hear, try
and adjudicate on a particular o;ense and to impose punishment for the
o;ense proved. The criminal jurisdiction of a court is determined by the
geographical limits of the territory over which it e<ercises its authority,
and the action it is empowered to hear and decide.
Re*u#s#tes of &al#" e+er!#se of !r#m#nal ,ur#s"#!t#on
*. The court must have jurisdiction over the subject matter.
-. %t must have jurisdiction over the territory where the o;ense,
or any of its essential elements, was committed.
,. %t must have jurisdiction over the person of the accused.
-o$ ,ur#s"#!t#on #s a!*u#re"
*. =ver the subject matter.! >urisdiction over the subject matter is
conferred by law. %t is determined by the statute in force at the time of
the commencement of the action, not at the time of the commission of
2
U.S. v. Ling See Feng, 10 Phil. 104
3
Ban! "#$an!l Fili$in! v. Palana, 3% Phil. &31' Ang (i)a* v. C!+,- !. /n0+#-,ial Rela-i!n#,
1& Phil. 135
3
the o;ense, even if the penalty prescribed at the time of its commission
is less and does not fall under the current jurisdiction of the court.
.

The allegations of the complaint or information determine whether
or not the facts set out therein and the punishment provided by law for
the o;ense fall within the jurisdiction of the court where such complaint
or information is fled, not by the pronouncement which the court may
render after trial.
&
"pplicable is the principle of adherence of jurisdiction which
signifes that once jurisdiction is vested in the court it is retained to the
end of the litigation. "s jurisdiction once ac5uired is not a;ected by
subse5uent legislative enactment placing jurisdiction in another
tribunal, unless the new law provides that cases already pending in
court but has not gone beyond a certain stage shall be transferred to
the court which has jurisdiction under the new legislation.
:
%n other
words, where the subse5uent statute e<pressly provides or is construed
that it is applicable to operate to actions pending before its enactment,
the original court, although it has jurisdiction at the time the charge was
fled, loses its jurisdiction upon the enactment of the new law conferring
jurisdiction in another tribunal.
1

Lac# of jurisdiction over the subject matter or the o;ense charged
is fatal to the result of the case. " conviction or ac5uittal by the court
which has no jurisdiction over the subject matter is absolutely void, and
therefore, is no bar to subse5uent indictment and trial in a court which
has jurisdiction over the subject or o;ense. =bjection on this ground
may be raised at any stage of the proceedings, even motu proprio by
the court, or for the frst time on appeal.
/

-. Territorial jurisdiction.! Territorial jurisdiction refers to the
geographical territory where the court e<ercises it jurisdiction and may
ta#e cogni)ance or try the o;ense involved. %t refers to the place where
the o;ense, or any of its elements, was committed. Territorial
jurisdiction of the court is determined by the allegations of the
information or complaint, which must aver that the o;ense charged or
any of its essential elements, has been committed within the territory
over which the court e<ercises jurisdiction. Thus, where the evidence
adduced during the trial discloses that the o;ense charged was
4
Pe!$le v. Lag!n, 185 SCRA 442' Pe!$le v. 2agallane#, 24& SCRA 212
5
B+a*a v. P!l!, 11& SCRA 4%1' Pe!$le v. Lag!n, !$. i-.
1
Pe!$le v. 2agallane#, 24& SCRA 212
%
L-. C!l. Sanhe3, e- al. v. San0igan)a*a, 313 SCRA%23
8
R!#a U* v. C.A., 2%1 SCRA 31%' F+3+4e v. C.A., 4%4 SCRA 5%0
4
committed elsewhere outside the territorial jurisdiction of the court, the
criminal action should be dismissed for want of jurisdiction.
2

4onetheless, although this a matter of venue, venue, however, is
an essential element of jurisdiction in criminal cases. %t is, nonetheless,
transferable. ?pon good reason, any of the parties may move before he
upreme Court to authori)e the transfer of venue to another court of
e5ual jurisdiction outside the territorial limits of the frst court.

The upreme Court, the Court of "ppeals and the andiganbayan
have nationwide territorial jurisdiction.
,. =ver the person of the accused.! >urisdiction over the person of
the accused is ac5uired upon his arrest, or his voluntary appearance in
the court trying the case, submitting himself to its jurisdiction. This
signifes that the accused must be in the valid custody of the law.
>urisdiction over the person of the accused is ac5uired+ '*( upon his
valid and legal arrest, with or without warrant9 or '-( upon his voluntary
appearance and submission to the court@s jurisdiction, as where he
surrenders to the proper authority. $oluntary appearance may also be
accomplished by appearing for arraignment.
*0
>urisdiction over the person of the accused, once ac5uired can not
be lost upon the instance of the parties, as where the accused jumps
bail or escapes from the custody of the law, in which case the
proceedings shall continue in absentia until the case is terminated.
**

Aowever, where an accused has not been arrested and is still at!
large, his mere fling of a motion for bail is not suBcient to hold that he
has voluntarily appeared and submitted his person to the jurisdiction of
the court.
*-
Cut in Paderanga vs. Court of "ppeals,
*,
where the accused was
confned in a hospital and his counsel manifested in his motion for bail
that his client is submitting his person to the custody of the president of
the local chapter of the %CP, the upreme court held that under the
factual situation of the accused, he has constructively, voluntarily and
legally submitted his person to the custody of the law.
&
/)i0.
10
Ji4ene3 v. 5a3a,en!, 110 SCRA 4
11
/)i0.
12
6e,,e,a, Re4e0ial Law, 7!l. /7, 200% "0., $$. 53854, i-ing #eve,al a#e#
13
24% SCRA 4%1
5
Su''ose the a!!use" "es#res to *uest#on the ,ur#s"#!t#on of
the !ourt o&er h#s 'erson on the .roun" that h#s arrest $as
#lle.al/ ho$ $#ll su!h #ssue %e a0e!te" #f he #n!lu"es #n h#s
mot#on to *uash other .roun"s a'art from assa#l#n. the
,ur#s"#!t#on of the !ourt o&er h#s 'erson1
There are two schools of thought on this issue. "ccording to
>ustice Regalado, if the accused raises other grounds in his motion to
5uash in addition to the issue of jurisdiction over his person, which call
for the court to e<ercise its jurisdiction, he thereby waives his objection
to 5uestion the jurisdiction of the court over his person.
>ustice Aerrera, on the other hand, relying on ection -0 of Rule
*. of the Rules of Court, posits that the inclusion in the motion to 5uash
other grounds aside lac# of jurisdiction over the person of the accused
shall not be deemed a voluntary appearance and submission by the
accused of his person to the jurisdiction of the court.

Res'e!t#&e ,ur#s"#!t#on of !ourts #n !r#m#nal !ases
*. The upreme Court. D The upreme Court has jurisdiction over the
following+
a. "ppeal by notice of appeal from the Regional Trial Court or the
andiganbayan involving o;enses where the penalty imposed by the
trial court is reclusion perpetua or life imprisonment, and those
involving o;enses which, although not so punished, arose out of the
same occurrence or which may have been committed by the accused on
the same occasion.
b. Petition for Review on Certiorari
'*( Erom the Court of "ppeals
'-( Erom the andiganbayan
',( Erom the Regional Trial Court where only error or
5uestion of
law is involved.
-. The Court of "ppeal. D The Court of "ppeals has jurisdiction over the
following+
a. "ppeal by notice of appeal from the Regional Trial Court in all
other
1
criminal cases not falling under the e<clusive jurisdiction of
the
upreme Court9
b. Petition for review of decisions of Regional Trial Courts acting
under
its appellate jurisdiction on appeals from the frst level
courts,
which petition for review is not a matter of right.
,. The andiganbayan. ! The andiganbayan has jurisdiction as follows+
a. F<clusive jurisdiction over violations of Republic "ct 4o.
,0*2
'"nti 8raft Law(, Republic "ct 4o. *,1., and Chapter %%
,
ection -, Title $%% of the Revised Penal Code, and
other
o;enses committed by public oBcials and employees
in
relation to their oBce, private individuals charged as
co!
principals, accomplices and accessories including
those
employed in government owned or controlled
corporations, where one or more of the accused are
oBcials occupying the following positions in the
government, whether permanent, acting or
interim capacity at the time of the commis!
sion of the o;ense+
'*(. =Bcial of the F<ecutive Cranch classifed as
8rade 3-16 or higher,
'-(. Gembers of congress,
',(. Gembers of the judiciary,
'.(. Gembers of the constitutional commissions,
'&(. "ll other national and local oBcials classi!
fed as 8rade 3-16 or higher.
N223 %n cases where none of the accused are occupying the
above positions, the original jurisdiction shall be vested in the proper
regional trial court or metropolitanHmunicipal trial court, as the case
may be, pursuant to their respective jurisdiction.
%
%n case where there is no specifc allegation of facts showing that
the o;ense was committed in relation to the public oBce of the
accused, the original jurisdiction shall also be vested in the proper
regional trial court or metropolitanHmunicipal trial court as the case may
be.
b. Criminal cases fled pursuant to and in connection with
F<ecutive =rder 4os. *, -, *., and *.!". 'sec. -, Rep
"ct 4o. 121&, as amended by Rep. "ct 4o. /-.2.(
.. Re.#onal Tr#al Courts24 Regional Trial Courts have jurisdiction over+

a. Criminal cases not within the e<clusive jurisdiction of any
court, tribunal or body9
b. Criminal cases where the penalty provided by law
e<ceeds
si< ':( years imprisonment irrespective of fne9
c. Criminal cases not falling under the e<clusive original
jurisdiction of the andiganbayan where none of the
accused occupy positions corresponding to salary 8rade
3-16 or higher9
d. Criminal cases where the only penalty provided by law is
fne e<ceeding PhP.,000.00.
&2 )am#ly Courts2 5 The Eamily Courts have jurisdiction over+
a. F<clusive original jurisdiction over criminal cases where
one or
more of the accused is below eighteen '*/( years of
age,
but not less than nine '2( years of age9
b. F<clusive original jurisdiction over criminal cases where
one or
more victims are minors at the time of the
commission of the
o;ense.
8
N223 %f the minor is found guilty, the court shall promulgate
sentence and ascertain the civil liability which the accused may have
incurred. Aowever, the
sentence shall be suspended without the need of application pursuant
to Presidential 7ecree 4o. :0,, The Child and Iouth Jelfare Code.
:. Metro'ol#tan/ Mun#!#'al/ an" Mun#!#'al C#r!u#t Tr#al
Courts
a. F<clusive jurisdiction over+
'*(. "ll violations of city or municipal ordinances committed within their
respective territorial jurisdiction9
'-( "ll o;enses punishable with imprisonment of not more than si< ':(
years imprisonment, as principal penalty, irrespective of the fne and
regardless of other imposable accessory penalty and the civil liability
',( F<clusive original ,ur#s"#!t#on over o;enses involving damage to
property through criminal negligence.
'.( "ll o;enses committed not falling within the e<clusive original
jurisdiction of the andiganbayan where none of the accused are
occupying positions corresponding to salary 8rade 3-16 or higher.
'&( %n cases where the penalty provided by law is a fne not e<ceeding
PhP.,000.00.
b. pecial >urisdiction over application for bail in the absence of all
Regional Trial Court judges9
c.. ummary jurisdiction over+
'*( TraBc violations
'-( Rental law
',( $iolations of city and municipal ordinances
'.( "ll other cases where the penalty imposed by law
does not e<ceed si< ':( months andHor fne of
PhP*,000.00.

SOURCE3 en!h$or6 for Tr#al (u".es/ published by the upreme
Court

Rule 778 5 PROSECUTION O) O))ENSES
Se!t#on 72 Inst#tut#on of !r#m#nal a!t#on24 Cr#m#nal a!t#ons
shall %e #nst#tute" as follo$s3
&
(a) )or o0enses $here 'rel#m#nary #n&est#.at#on #s
re*u#res 'ursuant to se!t#on 7 of Rule 779/ %y :l#n. the
!om'la#nt $#th the 'ro'er o;!er for the 'ur'ose of !on"u!t#n.
the re*u#s#te 'rel#m#nary #n&est#.at#on2
(%) )or other o0enses/ %y :l#n. the !om'la#nt (or
#nformat#on) $#th the o;!e of the 'rose!utor2 'Fnclosure were
supplied.(
The #nst#tut#on of the !r#m#nal a!t#on shall #nterru't the
runn#n. of the 'er#o" of 'res!r#'t#on of the o0ense !har.e"
unless other$#se 'ro&#"e" %y s'e!#al la$s2
C O M M E N T S
"s defned under ection ,'b( of Rule *, criminal action is one by
which the tate prosecutes a person for an act or omission punishable
by law,
Criminal procedure, on the other hand, refers to the method
prescribed by law for the apprehension, investigation prosecution and
conviction of the accused, if found guilty. %t is concerned with the
procedural steps thru which a criminal action undergoes commencing
from the arrest initial investigation, arraignment of the accused, trial
and concluded with his ac5uittal or conviction if found guilty of the
charge.
*.

ection * of Rule **0 has been amended by "G 4o. 0&!/!-: which
withdraws from the frst level courts the authority to conduct
preliminary investigations. Aence, criminal actions should be instituted
in the oBce of the prosecutors, whether preliminary investigation is
re5uired or not. >udges of frst level courts are no longer included in the
term 3proper oBcer6 who may conduct preliminary investigation.
"s a rule injunction will not lie to enjoin a criminal prosecution.
F<ception to this rule are+
*. To a;ord ade5uate protection to the constitutional rights of the
accused9
14
Bla9:# Law Di-i!na,*, 5
-h
"0., $$. 33%
10
-. Jhen necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions9
,. Jhen there is a pre!judicial 5uestion which is sub!judice9
.. Jhen the acts of the oBcer are without or in e<cess of
authority9
&. Jhen the prosecution is under an invalid law, ordinance or
regulation9
:. Jhen double jeopardy is clearly apparent9
1. Jhere the court has no jurisdiction over the o;ense9
/. Jhere there is a case of persecution rather than prosecution9
2. Jhere the charge is manifestly false and motivated by lust for
vengeance9
*0. Jhen there is clearly no prima facie case against the accused
and a motion to 5uash on that ground has been denied9
**. Preliminary injunction has been issued by the upreme Court
to prevent the threatened unlawful arrest of the petitioners.
*&
Aow does the institution of the criminal action a;ect the running
of prescriptionK
The institution of criminal action interrupts the running of the
period of prescription of the o;ense charged, unless otherwise provided
by special laws.
The prescriptive period of o;enses under e<isting laws shall also
be interrupted upon the fling of the complaint with the Punong
Carangay, and shall run again upon receipt by the complainant of the
certifcate of repudiation or of the certifcation issued by Lupon or
Pang#at ecretary. Cut the interruption of the prescriptive period shall
last only for :0 days. 'ec. **, Rule $%, Latarungan Pambarangay Rule.(
15
Pe!$le v. ;,e*, 125 SCRA 523
11
<hen #s 'rel#m#nary #n&est#.at#on re*u#re"1
" preliminary investigation is re5uired to be conducted before the
fling of a complaint or information for an o;ense where the penalty
prescribed by law is at least four '.( years, two '-( months and one '*(
day with out regard to the fne. Rule **-, -
nd
paragraph.( !! Prision
correccional+ minimum of the ma<imum period of prision correccional
uppose a criminal complaint is fled in the barangay, will the
fling of such complaint interrupt the period of prescriptionK
Ies. The period of prescription for the o;ense charged is
interrupted upon the fling of the complaint with the Punong Carangay.
Cut it shall resume to run upon receipt by the complainant of the
certifcation or resolution of the barangay or the repudiation by the
respondent, or the certifcation to fle action issued by the lupon or
pang#at secretary. uch interruption, however, shall not e<ceed si<ty
':0( days from the fling of the complaint with the punong barangay.
'ec. .*0!c, Latarungan Pambarangay Law.(
Section 2. The complaint or information 'form(. - The
!om'la#nt or #nformat#on shall %e #n $r#t#n./ #n the name of the
Peo'le of the Ph#l#''#nes an" a.a#nst all 'ersons $ho a''ear to
%e res'ons#%le for the o0ense #n&ol&e"2
8ive the reason behind ection - of Rule **0.

ince every criminal action is regarded as a formal accusation
against a person it is essential that such accusation be in writing and
fled in court, otherwise the court would not ac5uire jurisdiction over the
case. Goreover, such formal accusation determines the court where the
same may be fled.
The criminal action must be instituted in the name of the People of
the Philippines as plainti;, because a criminal act is an outrage against
the sovereignty of the tate. Aence, its vindication must be in the name
of the sovereign power.
uppose the criminal action is instituted erroneously in the name
of the injured person or victim, how will such error a;ect the jurisdiction
of the court.K
12
%f the criminal action is erroneously instituted in the name of the
injured party, instead of the People of the Philippines, the defect is not
jurisdictional but merely one of form and may be corrected at any stage
of the proceeding. The error will not divest the court of jurisdiction to
try the case and render a valid judgment thereon.
Jho may be defendant in a criminal actionK
=nly resident natural persons may be defendants in a criminal
case. 4o criminal action lies against a juridical person because it is not
subject to arrest or physical punishment.
4either does criminal action lie against a person who is outside
the territorial jurisdiction of the Philippines unless he is brought in by
means of e<tradition proceedings.
"s a rule every criminal action must be instituted against all
persons who appear to be responsible for the o;ense involved. uppose
the government prosecutor e<cluded from the criminal suit a person
who appears, in the opinion of the o;ended party, is e5ually responsible
for the o;ense charged. Gay the o;ended party compel the prosecutor
to include in the criminal case the e<cluded suspectK
The accepted rule is that the public prosecutor has the discretion
to include in the charge only those persons who, based on the evidence
in his hands, appear responsible for the o;ense involved. o, if in his
evaluation of the evidence in his possession he seriously doubt if he
can secure the conviction of the e<cluded person beyond reasonable
doubt, he can not be compelled to include the suspect in the charge..
Aowever, the prosecutor must e<ercise such discretion with
sound judgment. %f he gravely abuses his discretion, he can be
compelled by mandamus which may be instituted by the aggrieved
party to include in the information the e<cluded suspect.
Jhat is the e;ect of such e<clusion of a suspect on his criminal
liability, if
anyK
uch person will not be relieved of his criminal liability, if any, by
the failure of the prosecutor to include him in the charge sheet. %f later
on suBcient evidence is gathered to prove beyond reasonable doubt
13
his guilty participation in the commission of the crime, he can still be
charged with the o;ense, either in the same case with the other
accused, or in a separate criminal action instituted against him.

Jhere should the venue of the criminal action be laidK
The venue of a criminal action is the court which has territorial
jurisdiction over the place where the crime, or any of its essential
elements, was committed.
%n criminal actions venue is an essential element of jurisdiction.
*:
%f any evidence appears in the course of the proceedings that the crime,
or any of its essential elements, was committed within the territorial
jurisdiction of the trial court, the case should be dismissed for want of
jurisdiction on the part of the court trying the case.
*1

"part from venue, what other factors should be ta#en into account
to determine the jurisdiction of the court to try and decide a criminal
caseK
%t is settled that the jurisdiction of the court over a criminal case is
also determined by the allegations of the complaint or information. The
fndings of the court based on the evidence presented during the trial
will divest the court of its jurisdiction if the case proved falls outside
the jurisdiction of the trial court.
*/

Section 3. Complaint defned.- A !om'la#nt #s a s$orn
$r#tten statement !har.#n. a 'erson $#th an o0ense/
su%s!r#%e" %y the o0en"e" 'arty/ any 'ea!e o;!er/ or other
'u%l#! o;!er !har.e" $#th the enfor!ement of the la$ &#olate"2
Section 4. Information Defned.- An #nformat#on #s an
a!!usat#on #n $r#t#n. !har.#n. a 'erson $#th an o0ense/
su%s!r#%e" %y the 'rose!ut#on an" :le" $#th the !ourt2
11
2aa#ae- v. Pe!$le, 453 SCRA 255 <2005=
1%
F+9+3+4e v. Pe!$le, 4%4 SCRA 5%0 <2005=' Ag+#-in v. Pa4in-+an, 41% SCRA 101 <2005=
18
2aa#ae- v. Pe!$le, #+$,a.' 2a)ilia P,!0+-#, /n. v. U4e3awa, 452 SCRA %31 <2005=
14
C O M M E N T S
?nder ection *., paragraph '*(, of the *2/1 Constitution, no
person shall be held to answer for a criminal o;ense without due
process of law. =ne of the essential elements of due process is, that in
all criminal prosecutions, the accused has the right to be informed of
the nature and the cause of the accusation against him '%bid., par. -(.
Fnforcement of this constitutional right of an accused is the function of
the complaint or the information.
Jhat, in general, is the formulation of a complaint or informationK
The complaint or information shall be in writing, in the name of
the People of the Philippines, and against all persons who appear to be
involved or responsible for the commission of the o;ense charged.
N223 ?nder the Philippine justice system, criminal complaint is of
two types+ the frst refers to a case which can not be prosecuted de
ofcio and needs
the consent of the o;ended party to commence the prosecution of the
criminal action. This type may be fled directly with the court. This is
the type of complaint is the one contemplated by Rule **0. The other
type refers to criminal cases fled in the =Bce of the Prosecutor for
preliminary investigation.
Aow is a complaint di;erentiated from an informationK
*. "s to their form, a complaint is a sworn written statement
subscribed by the complainant, while an information need not be sworn
by the prosecutor.
-. "s to the persons who may e<ecute them, a complaint may be
e<ecuted by the o;ended party, by any peace oBcer, or by the public
oBcer charged with the enforcement of the law violated, while an
information is e<ecuted by the government prosecutor9
,. "s to their modes of fling, a complaint may be fled directly
with the court in proper cases to commence a criminal action or with the
15
oBce of the government prosecutor for preliminary investigation, while
an information is always fled with the court by the prosecutor.
The information should be fled in the name of the People of the
Philippines. Gay such information be 5uashed because it was not fled in
the name of the People of the PhilippinesK
4o, because the defect is merely a formal one and may be cured
at any stage of the proceedings. Eor a motion to 5uash to prosper on
the ground of defect in form, it must fail to conform substantially with
the mandatory prescribed form.

The Rule also re5uires that the information must include and
charge all persons who appear to be responsible for the o;ense.
uppose the information omitted to include and charge one suspect who
appear responsible for the o;ense, Gay the information be 5uashed for
the reason that it does not charge all the persons who are responsible
for the o;enseK
4o, because the prosecutor has the discretion to determine who
should be charged in the information. Aowever, if the prosecutor
gravely abuses his discretion and e<cludes the accused from the charge
sheet despite suBcient evidence showing his participation in the
commission of the o;ense, the prosecutor can be impleaded as a
respondent in a petition for mandamus, as his omission may have
amounted to a deliberate refusal to perform a duty enjoined by law.
Jho may demand the inclusion in the information of a person who
appears responsible but was e<cluded by the prosecutorK
*. The inclusion may be demanded by those already charged in
the information.
-. The o;ended party may demand such inclusion.
Section 5. Who may prosecute criminal actions.- All
!r#m#nal a!t#ons e#ther !ommen!e" %y !om'la#nt or %y
#nformat#on shall %e 'rose!ute" un"er the "#re!t#on an" !ontrol
of a 'u%l#! 'rose!utor2 In !ase of hea&y $or6 s!he"ule of the
'u%l#! 'rose!utor or #n the e&ent of la!6 of 'u%l#! 'rose!utor/
11
the 'r#&ate 'rose!utor may %e author#=e" #n $r#t#n. %y the Ch#ef
of the Prose!ut#on O;!e or the Re.#onal State Prose!utor to
'rose!ute the !ase su%,e!t to the a''ro&al of the !ourt2 On!e
so author#=e" to 'rose!ute the !r#m#nal a!t#on/ the 'r#&ate
'rose!utor shall !ont#nue to 'rose!ute the !r#m#nal a!t#on u' to
the en" of the tr#al e&en #n the a%sen!e of the 'u%l#! 'rose!utor/
unless the author#ty #s re&o6e" or other$#se $#th"ra$n2 (As
amen"e" %y AM No2 894948>4SC/ A'r2 78/ 98892)
The !r#mes of a"ultery an" !on!u%#na.e shall not %e
'rose!ute" e+!e't u'on a !om'la#nt :le" %y the o0en"e"
s'ouse2 The o0en"e" 'arty !annot #nst#tute !r#m#nal
'rose!ut#on $#thout #n!lu"#n. the .u#lty 'art#es/ #f %oth are
al#&e/ nor/ #n any !ase/ #f the o0en"e" 'arty has !onsente" to
the o0ense or 'ar"one" the o0en"ers2
The o0ense of se"u!t#on/ a%"u!t#on an" a!ts of
las!#&#ousness shall not %e 'rose!ute" e+!e't u'on a !om'la#nt
:le" %y the o0en"e" 'arty or her 'arents/ .ran"'arents or
.uar"#an/ nor/ #n any !ase/ #f the o0en"er has %een e+'ressly
'ar"one" %y any of them2 If the o0en"e" 'arty "#es or %e!omes
#n!a'a!#tate" %efore she !an :le the !om'la#nt/ an" she has no
6no$n 'arents/ .ran"'arents or .uar"#an/ the State shall
#n#t#ate the !r#m#nal a!t#on #n her %ehalf2
The o0en"e" 'arty/ e&en #f a m#nor/ has the r#.ht to
#n#t#ate the 'rose!ut#on of the o0enses of se"u!t#on/ a%"u!t#on
an" a!ts of las!#&#ousness #n"e'en"ently of her 'arents/
.ran"'arents or .uar"#an/ unless she #s #n!om'etent or
#n!a'a%le of "o#n. so2 <hen the o0en"e" 'arty/ $ho #s a m#nor/
fa#ls to :le the !om'la#nt/ her 'arents/ .ran"'arents/ or
.uar"#an may :le the same2 The r#.ht to :le the a!t#on .rante"
to 'arents/ .ran"'arents/ or .uar"#an shall %e e+!lus#&e of all
other 'ersons an" shall %e e+er!#se" su!!ess#&ely #n the or"er
here#n 'ro&#"e"/ e+!e't as state" #n the 're!e"#n. 'ara.ra'h2
No !r#m#nal a!t#on for "efamat#on $h#!h !ons#sts #n the
#m'utat#on of any of the o0enses ment#one" a%o&e shall %e
%rou.ht e+!e't at the #nstan!e of an" u'on !om'la#nt :le" %y
the o0en"e" 'arty2
The 'rose!ut#on for &#olat#on of s'e!#al la$s shall %e
.o&erne" %y the 'ro&#s#ons thereof2
1%
C O M M E N T S
"s a rule all criminal actions, whether commenced by complaint or
by information, shall be prosecuted by the public prosecutor. Aowever,
where the civil action for recovery of civil liability is instituted with the
criminal action pursuant to Rule ***, the o;ended party may intervene
by counsel in the prosecution of the o;ense,
*2
in which case the public
prosecutor may delegate the prosecution of the o;ense to a private
prosecutor who shall conduct the prosecution under the direction and
control of the public prosecutor.
uppose the o;ended party does not intervene in the prosecution
of the o;ense, may the public prosecutor delegate the prosecution of
the o;ense to a private prosecutorK
4o, the public prosecutor cannot delegate his duty to prosecute
an o;ense to a private prosecutor. The authority of a private prosecutor
to appear in a criminal action is dependent on the intervention of the
o;ended party in the criminal prosecution to recover civil damages.
Jhere the o;ended party does not intervene, recovery of the civil
liability in the criminal case is not feasible. The interest of the o;ended
party is only co!e<tensive with his right to recover the civil liability, and
such right to recover is dependent on the result of the criminal case.
uppose no public prosecutor is available to prosecute the
o;ense, may a private prosecutor be allowed to ta#e over and prosecute
the criminal actionK
Ies, provided the following pre!conditions concur+
*. The private o;ended party has the right to intervene in the
prosecution of the criminal action, as where he has not waived the civil
action, or has reserved his right to institute it separately, or has
instituted the civil action prior to the criminal action9
-. The public prosecutor, although present, his wor# load
prevents him to prosecute the criminal action, or there is no public
prosecutor available who may prosecute the criminal action9
1&
Se. 1, R+le 111
18
,. The Chief of the Prosecutor@s =Bce or the Regional tate
Prosecutor has authori)ed in writing the private prosecutor to prosecute
the case9
.. The court approves such arrangement.
Aow long will such authority of a private prosecutor to prosecute
the criminal case, lastK
The private prosecutor shall continue to prosecute the criminal
action up to the end of the trial even in the absence of public
prosecutor, unless the authority is revo#ed or otherwise withdrawn.
-0

Jhat is the e<tent of the authority of the public prosecutor to
direct and control the criminal proceedings before and after the same
has been fled in courtK .
*. Cefore the case is fled. !The e<clusive control of a public
prosecutor over the criminal case last until the same is fled in court. Ae
can determine whether a prima facie case e<ists or not9 whether he has
suBcient evidence to secure conviction9 to determine what criminal
case may be fled9 what evidence he would adduce9 and at the
conclusion of the preliminary investigation, whether a case should be
fled in court and what case.
-. "fter the case is fled in court.! Fven after the case has been
fled in court, the public prosecutor still retains the discretion to move
for its dismissal, but this discretion is subject to the authority of the
court. =nce the case is fled in court, the court ac5uires jurisdiction over
the case and the prosecutor loses his e<clusive control over the case.
The jurisdiction of the court continues until the termination of the case.
%t determines whether the case should be remanded bac# to the oBce
of the prosecutor for re!investigation, or, should, on motion, be
dismissed. "ny disposition of the case rests on the sound discretion of
the court, after it has ac5uired jurisdiction over the case.
-*

Gay the private complainant fle a motion to dismiss the criminal
case directly before the courtK
20
Se. 5, 1
#-
$a,., R+le 110, a# a4en0e0 )* A2 5!. 028280%8SC, A$,. 10, 2002.
21
C,e#$! v. 2!g+l, 151 SCRA 412
1&
4o. "ny motion of the private complainant, even if no objection is
interposed by the accused, should be referred and coursed through the
public prosecutor, because the latter should be heard on the motion in
view of his authority of control and direction
uppose at the conclusion of the preliminary investigation, the
public prosecutor fled the case before the court. Aowever it turned out
that within the period for appeal from the resolution of the investigating
prosecutor, the accused elevated the said resolution for review of the
ecretary of >ustice. Gay the court suspend further proceedings in the
case until the ecretary shall have resolved the appeal of the accusedK

Ies. Jhere a petition for review of the resolution of the
investigating prosecutor is pending appeal either before the 7epartment
of >ustice or the =Bce of the President, upon motion of the proper party,
the court may suspend the arraignment of the accused, provided the
period of suspension shall not e<ceed :0 days counted from the fling of
the petition with the reviewing oBce.
--

Jhat is the scope of the authority of the public prosecutor to
control and direct the prosecution of a criminal case.
*. The public prosecutor determines what case should be fled
and who should be the accused.
-. Ae directs and control the manner of prosecuting the case.
,. Ae may cause the amendment of the information or the
complaint fled in proper cases, or even withdraw the information
without notice or leave of court provided the accused has not yet been
arraignment.
.. Ae determines what evidence should be adduced for successful
prosecution of the case.
Jhat is the e;ect if the trial of a criminal case proceeds in the
absence of the public prosecutorK
F<cept where the conditions covered by ection & of Rule **0, as
amended by "G 4o. 0-!-!01!C, are present, the actual and physical
presence of the public prosecutor at the trial is indispensable for the
validity of the proceedings in a criminal case.
-,

22
R+le 111, Se. 118.
23
Pe!$le v. Ba,iale#, ;.R. 5!. L83&&12, 2a,. 3, 1&%%
20
Aence, where the absence of the public prosecutor is not justifed
under ection & of Rule **0, as amended, it cannot be said that the
prosecution of the criminal action is under the control and direction of
the public prosecutor, and the evidence presented at such hearing
cannot be considered as evidence of the People. There is no evidence
to spea# of which was presented by the People and which could be the
basis of the decision of the trial court.

"fter the complaint or information has been fled in court, how is
the authority of the prosecutor to control and direct the proceedings
a;ectedK
The public prosecutor still retains to a certain e<tent his authority
to direct and control the criminal proceedings. Cut he cannot impose his
opinion on the trial court. The trial court assumes the sole power on
what should be done with the case insofar as its disposition is
concerned, that is, after the court has ac5uired jurisdiction over the
person of the accused. Eor instance, the prosecutor cannot by himself
alone withdraw the information or dismiss the case. The approval of the
trial court is re5uired.
N223 The crimes of adultery and concubinage cannot be
prosecuted e<cept upon complaint of the o;ended spouse. %f both
o;enders were alive, both of them must be included in the charge. Cut
if the o;ended party has consented to the o;ense or has pardoned the
o;enders or any one of them, both o;enders cannot be prosecuted
anymore. This rule is based on the substantive provision of "rticle ,..
of the Revised Penal Code, which provides that the crimes of adultery
and concubinage cannot be prosecuted e<cept upon a complaint fled by
the o;ended spouse, and that the o;ended party cannot institute the
criminal prosecution without including both the guilty parties, if both are
alive, nor in any case, if he shall have consented or pardoned the
o;ender.
-.
Compliance with the above re5uirements is jurisdictional, that is,
without the complaint of the o;ended spouse, the court does not
ac5uire jurisdiction over the case, because it is the complaint of the
o;ended spouse which starts the prosecutory proceedings.
-&
Aowever, the complainant must be legally married to the
o;ending spouse, otherwise heHshe would not have the status and
24
A,-. 344, 1
#-
> 2
n0
$a,#. Revi#e0 Penal C!0e
25
Pe!$le v. De la C,+3, ;.R. 5!. 135022, J+l* 11, 2002
21
capacity of an o;ended party who may prosecute the o;enders.
Goreover, no crime of adultery or concubinage is committed.
Private crimes refer to felonies which cannot be prosecuted e<cept
upon complaint of the o;ended party. Eor e<amples, adultery and
concubinage9 seduction, abduction, and acts of lasciviousness9 criminal
actions for defamation which consists in the imputation of the o;enses
of seduction, abduction or acts of lasciviousness, on the o;ended party.
uppose the o;ended party in the crimes of seduction, abduction
or acts of lasciviousness is a minor who did not fle the necessary
complaint, how may the o;ender be prosecuted, and by whomK
%f the minor o;ended woman dies not, or has become
incapacitated and cannot fle the complaint for the outrage, her parents,
grandparents or legal guardian, successively in that order of preference,
may fle the action. Cut if the o;ended woman is of age, she alone, and
no other, may fle the complaint.
uppose the o;ended minor dies or become incapacitated before
she can fle a complaint, in such eventuality who may fle the complaintK
%f the o;ended minor dies or becomes incapacitated and she has
no #nown parents, grandparents or guardian, the tate shall initiate the
criminal action in her behalf.
?UER@3 Su''ose the m#nor/ &#!t#m of a!ts of
las!#&#ousness/ has no 6no$n 'arents/ .ran"'arents or le.al
.uar"#an/ %ut e+!e't for her m#nor#ty of a.e/ she "oes not su0er
from any other le.al #n!a'a!#ty2 If she "oes not :le any
!om'la#nt for the outra.e !omm#tte" on her 'erson/ may the
State :le the ne!essary !om'la#nt #n her %ehalf a.a#nst the
o0en"er1
Section . Su!ciency of complaint or information. " A
!om'la#nt or #nformat#on #s su;!#ent #f #t states the name of the
a!!use"A the "es#.nat#on of the o0ense .#&en %y the statuteA
the a!ts or om#ss#ons !om'la#ne" of as !onst#tut#n. the o0enseA
the name of the o0en"e" 'artyA the a''ro+#mate "ate of the
22
!omm#ss#on of the o0enseA an" the 'la!e $here the o0ense
$as !omm#tte"2
<here the o0ense #s !omm#tte" %y more than one 'erson/
all of them shall %e #n!lu"e" #n the !om'la#nt or #nformat#on2
N22A The Constitution specifcally provides that the accused
must be informed of the nature and cause of the accusation against him
to enable him to prepare for his defense.
The objective of this section of the Rule, together with ections 1
to *-, is to implement the constitutional mandates+ '*( to inform the
accused of the description of the nature and cause of the charge against
him as well as to enable him to ma#e out his defense9 '-( to avail
himself of his conviction or ac5uittal as protection against a second and
subse5uent prosecution for the same o;ense9 and ',( to inform the
court of the facts alleged, so that it may decide whether they are
suBcient in law to support a conviction should one be had.
-:
The test of suBciency of the complaint or information is whether it
enables a person of common understanding to #now the charge against
him, and the court to render judgment properly.
-1


Section #. $ame of the accused. " The !om'la#nt or
#nformat#on must state the name an" surname of the a!!use" or
any a''ellat#on or n#!6name %y $h#!h he has %een or #s 6no$n2
If h#s name !annot %e as!erta#ne"/ he must %e "es!r#%e" un"er
a :!t#t#ous name $#th a statement that h#s true name #s
un6no$n2
If the true name of the a!!use" #s thereafter "#s!lose" %y
h#m or a''ears #n some other manner to the !ourt/ su!h true
name shall %e #nserte"
Section %. Desi&nation of the o'ense. " The !om'la#nt or
#nformat#on shall state the "es#.nat#on of the o0ense .#&en %y
21
Peh! v. Pe!$le, 212 SCRA518' Pe!$le v. C+-a4!,a, e- al., ;.R. 5!#. 133448, O-. 1, 2000
2%
Pe!$le v. La)8e!, ;.R. 5!. 133438, Jan. 11, 2002' Se,a$i! v. San0igan)a*an, e- al., ;.R. 5!#.
148418, e-., Jan. 28, 2003
23
the statute/ a&er the a!ts or om#ss#ons !onst#tut#n. the o0ense/
an" s'e!#fy #ts *ual#fy#n. an" a..ra&at#n. !#r!umstan!es2 If
there #s no "es#.nat#on of the o0ense/ referen!e shall %e ma"e
to the se!t#on or su%se!t#on of the statute 'un#sh#n. #t2
C O M M E N T S
*. "n indictment must fully state the elements of the o;ense
alleged to have been committed, as it is the recital of the essential
elements of the crime charged which delineates the nature and cause of
the accusation against the accused.
-/

-. Jhile the statutory designation of the o;ense charged should
be stated in the information, a mista#e, however, in the caption of an
indictment in designating the correct name of the o;ense is not a fatal
defect, as it is not the designation of the o;ense which is controlling but
the facts alleged in the information which determines the real nature of
the crime.
-2

,. The re5uirement that the complaint or information must
specify the 5ualifying andHor aggravating circumstances of the o;ense is
mandatory if they are to be appreciated by the court. Jhere the
prosecution fails to allege such 5ualifying or aggravating circumstance
in the complaint or information, the court can not consider them or any
of them even if they have been proved at the trial.
,0
.. The re5uirement for complete allegation on the particulars of
the indictment is based on the right of the accused to be fully informed
of the nature of the charges against him so that he may ade5uately
prepare for his defense pursuant to the due process clause of the
Constitution.
,*

&. Thus, in People v. $illar,
,-
although the 5ualifying circumstance
that the victim was under */ years old and the o;ender was her
guardian have been duly proved, these circumstances were not
appreciated by the court against the accused for the purpose of
imposing the death penalty, because they were not alleged in the
information. To consider said circumstances as 5ualifying would
28
Pe!$le v. C+-a4!,a, e- al., ;.R. 5!#. 133448853, O-. 1, 2000
2&
Pe!$le v. B+#-ine,a, ;.R. 5!. 148233, J+ne 8, 2004
30
Pe!$le v. Ave, ;.R. 5!# 13%2%48%5, O-. 18, 2002' Pe!$le v. C!#-ale#, e- al., ;.R.
5!#. 141154851, Jan 15, 2002
31
Pe!$le v. Dan-e, ;.R. 5!. 12%152, De. 5, 2001
32
;.R. 5!. 1323%8, Jan. 18, 2000
24
constitute denial of the right of the accused to due process and to be
informed of the charges against him.
Section (. Cause of the accusation. " The a!ts or
om#ss#ons !om'la#ne" of as !onst#tut#n. the o0ense an" the
*ual#fy#n. an" a..ra&at#n. !#r!umstan!es must %e state" #n
or"#nary an" !on!#se lan.ua.e an" not ne!essar#ly #n the
lan.ua.e use" #n the statute %ut #n terms su;!#ent to ena%le a
'erson of !ommon un"erstan"#n. to 6no$ $hat o0ense #s %e#n.
!har.e" as $ell as #ts *ual#fy#n. an" a..ra&at#n. !#r!umstan!es
an" for the !ourt to 'ronoun!e ,u".ment2
C O M M E N T S
*. The facts constituting the o;ense charged, as well as the facts
constituting the 5ualifying and aggravating circumstances should be
e<pressly and specifcally alleged in the complaint or information,
otherwise neither would be considered by the court even if proved
during the trial. These re5uirements apply to all criminal cases.
-. The information need not use the language of the statute in
stating the acts or omission complained of as constituting the o;ense.
Jhat is important are the facts demonstrating the act or omission
complained of, because it is these facts which should be established
beyond reasonable doubt. These facts should be stated in ordinary and
concise language as would enable a person of common understanding
to #now the o;ense being imputed on him.
,,

uppose the public prosecutor inadvertently omitted to allege the
aggravating and 5ualifying circumstances which attended the
commission of the o;ense. Gay he move to amend the information to
supply the omissionK
%t depends on whether the accused has been arraigned. %f the
accused has not yet been arraigned the prosecutor may cure his
omission by amending the information upon mere motion. Aowever, if
the accused has been arraigned, the defect in the information can be
corrected only by amending the information, but this, with leave of
court, and provided that such amendment would not be prejudicial to
33
Pe!$le v. Ca0a4$!g, ;.R. 5!. 148144, A$,il 30, 2004
25
the rights of the accused, since the amendment would be a substantial
one. =therwise the victim of the crime might be denied the full measure
of justice through oBcial negligence or ineptitude.
,.

uppose the allegations of the complaint or information are
vague. Jhat remedy should the accused avail to protect his right to
#now e<actly the nature and cause of the accusation against himK
The remedy of the accused is to fle either a motion for a bill of
particulars or a motion to 5uash the information. %f the defense fails to
pursue any of these alternative remedies, his omission would bar him to
object to the evidence supporting the objectionable information.
Aowever, this is on the assumption that the evidence can lawfully be
introduced and admitted under the Rules on Fvidence, even if its terms
are general, and suBciently charges the accused with a defnite crime.
"s to matters of form and substance, the issue should be raised
before arraignment, otherwise the objection shall be deemed waived.
,&

Section )*. +lace of commission of the o'ense. - The
!om'la#nt or #nformat#on #s su;!#ent #f #t !an %e un"erstoo"
from #ts alle.at#ons that the o0ense $as !omm#tte" or some of
#ts essent#al #n.re"#ents o!!urre" at some 'la!e $#th#n the
,ur#s"#!t#on of the !ourt/ unless the 'art#!ular 'la!e $here #t
$as !omm#tte" !onst#tutes an essent#al element of the o0ense
!har.e" or #s ne!essary for #ts #"ent#:!at#on2
C O M M E N T S
*. ection *0 of Rule **0 provides for the venue of a criminal
action, i.e., the court which e<ercises territorial jurisdiction over the
place where the o;ense was committed or some of its essential
elements occurred.
-. "s essayed earlier, venue is an essential element of jurisdiction
in criminal actions.
,. Aowever, where the place is an essential element of the
o;ense, li#e robbery in an inhabited house, public building, or place of
34
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
Rev. "0., $$. 300
35
Pe!$le v. Ca0a4$!ng, ;.R. 5!. 148144, A$,il 30, 2004
21
worship, or is necessary to identify the o;ense, such as destructive
arson, the place of commission must be alleged with particularity.
,:
"
statement that the crime was committed within a named place within
the jurisdiction of the court, will be suBcient in general.
.. %n libel cases, the rules on venue are as follows9
a. Jith the Regional Trial Court of the province or city where
the libelous article is printed and frst published, or where any of
the
o;ended parties actually resides at the time of the commission of
the o;ense9
b. Jhere one of the o;ended parties is a public oBcer
whose
oBce is in Ganila at the time of the commission of the o;ense, the
action shall be fled in the Regional Trial Court of Ganila or of the
city
or province where the libelous article is printed and frst
published9
c. %n case such public oBcer does not hold oBce in Ganila,
the action shall be fled in the Regional Trial Court of the province
or
city where he held oBce at the time of the commission of the
o;ense
or where the libelous article is printed and frst published9
d. %n case one of the parties is a private individual, the
action
shall be fled in the Regional Trial Court of the province or city
where
he actually resides at the time of the commission of the o;ence or
where the libelous matter is printed or frst published.
,1

&. The rule on venue does not apply to criminal cases triable in
the andiganbayan in the e<ercise of its original jurisdiction, because
its territorial jurisdiction is national in scope and it sits and holds session
only in Mue)on City.
31
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10 Rev. "0., $$. 303
3%
A,-. 310, Revi#e0 Penal C!0e' Ag+#-in v. Pa4in-+an, 41% SCRA 101' Li4 v. Ang, 453
SCRA 802
2%
Section )). Date of the commission of the o'ense. - It #s
not ne!essary to state #n the !om'la#nt or #nformat#on the
're!#se "ate the o0ense $as !omm#tte" e+!e't $hen #t #s
mater#al #n.re"#ent of the o0ense2 The o0ense may %e alle.e"
to ha&e %een !omm#tte" on a "ate as near as 'oss#%le to the
a!tual "ate of #ts !omm#ss#on2
C O M M E N T S
*. The rule does not re5uire that the actual date of the
commission of the crime be precisely alleged. %t is suBcient if the
complaint or information states that the o;ense was committed on a
date as near as possible to the actual date of its commission. The
phrase 3on or about6 is usually used on this score.
-. Thus, it is suBcient if the complaint or information uses the
phrase 3=n or about...6
,. Cut where the date of the commission of the o;ense is an
essential element of the o;ense, li#e the felony of infanticide, or
physical injuries where the gravity of the o;ense is the number of days
medical attendance is re5uired, or election o;enses D the precise date
when the o;ense was committed must be alleged.
Section )2. $ame of the o'ended party. - The !om'la#nt or
#nformat#on must state the name an" surname of the 'erson
a.a#nst $hom or a.a#nst $hose 'ro'erty the o0ense $as
!omm#tte"/ or any a''ellat#on or n#!6name %y $h#!h su!h
'erson has %een 6no$n or #s 6no$n2 If there no %etter $ay of
#"ent#fy#n. h#m he must %e "es!r#%e" un"er a :!t#t#ous name2
(a) In o0enses a.a#nst 'ro'erty/ #f the name of the
o0en"e" 'arty #s un6no$n/ the 'ro'erty must %e "es!r#%e" $#th
su!h 'art#!ular#ty as to 'ro'erty #"ent#fy the o0ense !har.e"2
(%) If the name of the 'erson a.a#nst $hom or a.a#nst
$hose 'ro'erty $as !omm#tte" #s thereafter "#s!lose" or
as!erta#ne"/ the !ourt must !ause su!h true name to %e
#nserte" #n the !om'la#nt of #nformat#on an" the re!or"2
!) If the o0en"e" 'arty #s a ,ur#"#!al 'erson/ #t #s
su;!#ent to state #ts name/ or any name or "es#.nat#on %y
$h#!h #t #s 6no$n or %y $h#!h #t may %e #"ent#:e"/ $#thout nee"
28
of a&err#n. that #t #s a ,ur#"#!al 'erson or that #t #s or.an#=e" #n
a!!or"an!e $#th la$2
C O M M E N T S
Jhat is the e;ect of an erroneous designation of the name of the
o;ended party on the criminal case fled against the accusedK
"s a rule an error in the designation of the o;ended party is not a
reversible error, where the o;ense can still be prosecuted and
ascertained despite such error. Aowever, where the identity of the
o;ended party is an essential element of the crime charged, an error in
such designation is fatal.
Section )3. Duplicity of the o'ense. " A !om'la#nt or
#nformat#on must !har.e only one o0ense/ e+!e't $hen the la$
'res!r#%es s#n.le 'un#shment for &ar#ous o0enses2
C O M M E N T S
Jhen is there duplicity of the o;enses chargedK
There is duplicity of the o;enses charged where the complaint or
the information charges the accused with two or more o;enses. Thus, a
complaint or information is defective where it charges murder and
seduction which should be prosecuted separately.
Aowever, where a single act constitutes two or more grave or less
grave felonies, or where an o;ense is a necessary means for committing
another o;ense, and the law prescribes a single penalty for the two
o;ense, usually the penalty for the most serious crime to be imposed in
its ma<imum period,
,/
the accused can be indicted in a single
information for the two o;enses.
Jhat is the reason for the ruleK
38
A,-. 48, Revi#e0 Penal C!0e
2&
The reason for the rule is to give the accused the necessary
#nowledge of the indictment against him to enable him to prepare his
defenses. The prosecution should not heap upon the accused two or
more charges which may confuse him in the preparation of his defenses.
Jhat is the remedy of the indictee should the complaint or
information charges him with two or more o;ensesK
The accused, before entering his plea, should move to 5uash the
complaint or information. =therwise, the Naw in the complaint or
information shall be deemed waived, and the accused can be convicted
for as many o;enses charged and proved beyond reasonable doubt.
uppose Pedro, armed with an 3?)i6 which is an automatic
frearm, by a single press of the trigger, fres ten bullets, each bullet
hitting and #illing one person. "s the public prosecutor you decided to
charge Pedro with murder. Aow many information would you fle against
Pedro, and whyK
Ten separate information should be fled against Pedro. %t is not
the single act of pressing the trigger of an automatic frearm li#e a
3Thomson6 sub!machine gun that determines the number of felonies
committed, but the number of bullets which actually produced the
crime. The fring of several bullets by the accused, although resulting
from continuous burst of gunfre, constituted several acts, and each
person fell by the di;erent shots is a victim of a separate crime of
murder.
,2

Jhat do you understand by the term 3delicto continuado6 or
continuing crimeK
Eor 3delicto continuado6 to e<ist, there should be a plurality of
acts performed during a period of time, unity of penal provision violated,
and unity of criminal intent or purpose, which means the two or more
violations of the same penal provisions are united in one and the same
intent or resolution leading to the perpetration of the same criminal
purpose or aim.
.0
%n appearance a continuing crime consists of several
crimes but in reality there is only one crime in the mind of the
perpetrator.
3&
Pe!$le v. D+a*, 225 SCRA 1#
40
San-iag! v. ;a,hi-!,ena, 228 SCRA 214
30
where the law prescribes a single punishment for the various
o;enses committed the rule of the duplicity of o;enses does not apply.
Flucidate on how this e<ception operates.
The e<ception to the rule against duplicity refers to comple<
crimes under "rticle ./ of the Revised Penal Code, wherein a single
penalty is imposed on the special comple< crime or composite crimes
defned in "rticles -::!C, -:1, -2., -21, and ,-0 of the Revised Penal
Code as amended. Jhere the allegation of the acts imputed to the
accused are only to show the modes of commission of the crime, or are
merely di;erent counts specifying the acts of perpetration of the same
crime, there is no duplicity. There is li#ewise no duplicity when the other
o;ense stated in the information is only an ingredient or essential
element of the real o;ense charged, or when several acts stated are
related in describing the o;ense.
.*

Section )4. ,mendment or su-stitution.- A !om'la#nt or
#nformat#on may %e amen"e" #n form or #n su%stan!e/ $#thout
lea&e of !ourt at any t#me %efore the a!!use" enters h#s 'lea2
After the 'lea an" "ur#n. the tr#al/ a formal amen"ment may
only %e ma"e $#th lea&e of !ourt an" $hen #t !an %e "one
$#thout !aus#n. 're,u"#!e to the r#.hts of the a!!use"2
-o$e&er/ any amen"ment %efore 'lea/ $h#!h "o$n .ra"es
the nature of the o0ense !har.e" #n or e+!lu"es any a!!use"
from the !om'la#nt or #nformat#on/ !an %e ma"e only u'on
mot#on %y the 'rose!utor/ $#th not#!e to the o0en"e" 'arty an"
$#th lea&e of !ourt2 The !ourt shall state #ts reasons #n
resol&#n. the mot#on an" !o'#es of #ts or"er shall %e furn#she"
all 'art#es/ es'e!#ally the o0en"e" 'arty2
If #t a''ears at any t#me %efore ,u".ment that a m#sta6e
has %een ma"e #n !har.#n. the 'ro'er o0ense/ the !ourt shall
"#sm#ss the or#.#nal !om'la#nt or #nformat#on #n a!!or"an!e
$#th Se!t#on 7B/ Rule 77B/ 'ro&#"e" the a!!use" shall not %e
'la!e" #n "ou%le ,eo'ar"y2 The !ourt may re*u#re the $#tnesses
to .#&e %a#l for the#r a''earan!e at the tr#al2
41
Pe!$le v. Ca4e,in!, e- al., 108 Phil. %&
31
C O M M E N T S
7i;erentiate amendment from substitution of the information.
*. "mendment may be either formal or substantial, substitution
always involves substantial change from the original charge.
-. "mendment before the accused pleads can be made without
leave of court, substitution of the information must be with leave of
court as the original information has to be dismissed.
,. Jhere the amendment is only in form there no need for
another preliminary investigation and reta#ing of plea9 substitution of
information re5uires another preliminary investigation and the accused
has to plead anew to the new information.
.. "mendment refers to the same o;ense charged in the original
information or to an o;ense which necessarily includes or is necessarily
inclubuded in the o;ense charged, substitution re5uires or presupposes
that the new information involves a di;erent o;ense which does not
include or is necessarily included in the original charge.
&. ubstantial amendment after the accused has pleaded allows
him to invo#e double jeopardy, in substitution he cannot claim double
jeopardy as the information charges a di;erent o;ense
Jhen may an information be amended without leave of courtK
"s a rule a complaint or information may be amended in form and
substance without leave of court before the accused enters his plea.
"fter his plea and during the trial only a formal amendment may
be made but with leave of court and when it can be done without
causing prejudice to the rights of the accused.
Jhen is the consent of the prosecution and leave of court re5uired
although the amendment is to be made before the pleaK
32
Jhere the amendment before plea will down grade the nature of
the o;ense charged or will e<clude any accused from the information or
complaint, the same can be made only upon motion by the prosecutor,
with notice to the o;ended party, and with leave of court.
The court shall state the reason in resolving the motion and shll
furnish all the parties, especially the o;ended party with copies of its
order
Jhen may substitution of information be madeK
%f it appears at any time before judgment that a mista#e has been
made in charging the proper o;ense, the court shall dismiss the original
complaint or information upon the fling of a new one charging the
proper o;ense in accordance with ection *2 of Rule **2, provided the
accused shall not be placed in double jeopardy. The court may re5uire
the witnesses to give bail for their appearance at the trial.
ection *2 of Rule **2 provides that when it becomes manifest at
any time before judgment that a mista#e has been made in charging the
proper o;ense and the accused cannot be convicted of the o;ense
charged or any other o;ense necessarily included therein, the accused
shall not be discharged if there appears good cause to detain him. %n
such case, the court shall commit the accused to answer for the proper
o;ense and dismiss the original case upon the fling of the proper
information.
Jhat are the essential conditions in order that amendment of the
information may be allowed even after the arraignment of the accusedK
*. The amendment is only formal9
-. %t does not deprive the accused to invo#e the defense of
prescription9
,. it does not a;ect or alter the nature of the o;ense originally
charged9
.. %t does not involve a change in the basic theory of the
prosecution so as to re5uire the accused to undergo any material
change or modifcation of his defense9
33
&. %t does not cause surprise nor deprive the accused of an
opportunity to meet the new averment.
.-

Jhen may an amendment be deemed only a matter of formK
The amendments are merely formal when they do not touch upon
the recital of facts constituting the o;ense charged nor on the
determination of the jurisdiction of the court.
"n amendment is only in form when it merely adds specifcations
to eliminate vagueness in the information and does not introduce new
and material facts, and merely states with additional precision
something which is already contained in the original information and
which, therefore, adds nothing essential for the conviction of the
accused of the crime charged.
.,


Jhen may amendment of the information after plea be deemed
not prejudicial to the rights of the accusedK
The test as to when the rights of the accused are prejudiced by
the amendment to an information is when a defense under the
complaint or information, as it originally stood, would no longer be
available after the amendment is made and when any evidence which
the accused might have would no longer be available or be inapplicable
to the complaint or information as amended.
..
Section )5. +lace .here action is to -e instituted. -
(a) Su%,e!t to e+#st#n. la$s/ the !r#m#nal a!t#on shoul" %e
#nst#tute" an" tr#e" #n the !ourt of the mun#!#'al#ty or terr#tory
$here the o0ense $as !omm#tte" or $here any of #ts essent#al
#n.re"#ents o!!urre"2
(%) <here an o0ense #s !omm#tte" #n a tra#n/ a#r!raft/ or
other 'r#&ate or 'u%l#! &eh#!le #n the !ourse of #ts tr#'/ the
!r#m#nal a!t#on shall %e #nst#tute" an" tr#e" #n the !ourt of any
mun#!#'al#ty or terr#tory $here su!h tra#n/ a#r!raft/ or other
&eh#!le 'asse" "ur#n. #ts tr#'/ #n!lu"#n. the 'la!e of #ts
"e'arture an" arr#&al2
42
;a)i!n3a v. C!+,- !. A$$eal#, e- al., ;.R. 5!. 140311, 2a,. 30, 2001
43
/)i0.' P!)le-e , e- al., v. 6!n. San0!val, e- al., ;.R. 5!. 150110, 2a,. 25, 2004
44
/)i0.' /)i0.
34
(!) <here an o0ense #s !omm#tte" on %oar" a &essel #n
the !ourse of #ts &oya.e/ the !r#m#nal a!t#on shall #nst#tute" an"
tr#e" #n the !ourt of the :rst 'ort of entry or any mun#!#'al#ty or
terr#tory $here the &essel 'asse" "ur#n. su!h &oya.e/ su%,e!t
to the .enerally a!!e'te" 'r#n!#'les of #nternat#onal la$2
(") Cr#mes !omm#tte" outs#"e the Ph#l#''#nes %ut
'un#sha%le un"er Art#!le 9 of the Re&#se" Penal Co"e shall %e
!o.n#=a%le %y the !ourt $here the !r#m#nal a!t#on #s :rst :le"2
C O M M E N T S
ection *& provides the venue where criminal actions should be
fled. "s a general rule, subject to e<isting laws a criminal action shall
be instituted and tried in the court of the municipality or territory where
the o;ense was committed or any of its essential ingredients occurred.
Aence, where the venue is erroneously laid, a motion to 5uash on the
ground of lac# of jurisdiction on the part of the trial court is the
appropriate remedy, since in criminal cases venue and jurisdiction go
hand in hand.
This general rule, however, does not apply to criminal cases
cogni)able before the andiganbayan, because its jurisdiction is
nationwide in scope, nor in libel cases, because the jurisdiction of the
court in libel cases in defned in "rticle ,:0 of the Revised Penal Code,
as amended.
uppose the crime was committed while the train or private
vehicle was in a stationary position in one of its intermediate stops to
allow the driver, conductor and passenger to attend to their personal
necessities, where should the venue of the criminal action be laidK
The provision of section *&'a( applies, because the municipality
or territory where the o;ense was committed could easily be identifed,
something which could not be done where the train or motor vehicle
was moving, or otherwise could be done only with great diBculties and
serious controversies where the train or the motor vehicle was moving.
Jith respect to aircrafts, the same must be in Night within the
airspace of the Philippines. =therwise, paragraph 'd( shall govern.
35
uppose the crime was committed on board a vessel in the course
of its voyage, where should the venue be laid
Jhere the o;ense is committed in the course of the voyage of a
Philippine vessel within the Philippine territorial waters, the criminal
action should be instituted and tried in the court of the frst port of entry
or of any municipality or territory where the vessel passed during its
voyage.
The same rule applies where the crime is committed on board a
Philippine vessel while cruising in the high seas, beyond the territorial
waters of the Philippines. The frst port of entry or of any municipality or
territory in the Philippines where the vessel passed during the voyage,
has jurisdiction to ta#e cogni)ance of the case. The Philippine vessel,
although beyond the seashore of the country, is considered part of its
national territory. Thus, any person who committed a crime on board a
Philippine vessel, including any aircraft, while the same is outside the
territorial limits of the Philippines, can be tried before the Philippine
courts.
Cut for a crime committed on board a vessel or aircraft to be
triable in Philippine courts, such vessel or aircraft must be of Philippine
registry. %t is the registration of the vessel or the aircraft according to
Philippine laws which ma#es it a Philippine vessel or aircraft. Aence, a
ship or aircraft of foreign registry, although *00O owned by Eilipino
citi)ens, is a foreign vessel of aircraft.
uppose the crime is committed on board a foreign vessel while in
the high seas out the territorial waters of the Philippines, what court has
jurisdiction to ta#e cogni)ance of the criminal actionK
"s a rule the o;ense committed on board a foreign merchant
vessel is not triable by the Philippine courts. >ust as Philippine merchant
ships are e<tension of Philippine territory, so are foreign merchant ships
are e<tensions of the territories of their respective countries of
registration.
.&
Aowever, where the port of destination is the Philippines and
during its voyage a continuing crime was committed on board the vessel
the criminal action can be instituted and prosecuted in the Philippine
courts, if the prohibited act continues to e<ist at the time the vessel
reaches the Philippine territorial waters regardless of the fact that the
prohibited act started to e<ist is a foreign jurisdiction.
45
U.S. v. F!wle,, 1 Phil. 114
31
tate the two international rules relative to jurisdiction over
crimes committed on board foreign merchant vessels.
*. The Erench rule. ! The crimes are not triable in the court of
another country, unless their commission a;ects the peace and security
or safety of the other tate. The crimes are triable in Erench courts.
-. The Fnglish rule. ! uch crimes are triable in the country where
the vessel was where the crime was committed on board of such vessel,
unless they merely a;ect things within the vessel or they refer to the
internal management thereof.
The Ph#l#''#nes follo$s the En.l#sh rule2
Aowever, where the foreign vessel is merely in transit when the
o;ense was committed on board thereof, the crime is not triable in the
Philippines, because that fact alone does not constitute a breach of
public order.
.:
Gay the venue of a criminal case, which has been properly laid in
one court be transferred to another with a di;erent territorial
jurisdictionK
Ies, but the transfer must be upon motion of any of the parties
and with the approval of the upreme Court. The other court must be of
e5ual ran# as of the frst court. Goreover, there must be strong and
compelling reasons justifying such transfer, as where the prosecution
witnesses are being intimidated to #eep their silence, thus, the trial in
the original court would result in a moc#ery of the judicial process, or in
the miscarriage of justice.
Section ). " Inter/ention of the o'ended party in criminal
action.- <here the !#&#l a!t#on for re!o&ery of !#&#l l#a%#l#ty #s
#nst#tute" #n the !r#m#nal a!t#on 'ursuant to Rule 777/ the
o0en"e" 'arty may #nter&ene %y !ounsel #n the 'rose!ut#on of
the o0ense2
C O M M E N T S
41
US. v. L!!9 Chaw, 18 Phil. 5%3, 5%%85%8
3%
Fvery person criminally liable for a felony is also civilly liable.
.1
The civil liability includes restitution, reparation of the damage caused,
and indemnifcation for conse5uential damages.
./
?nder the Civil Code, the damages which be recovered for
criminal acts are actual or compensatory damages, moral, nominal,
temperate, and e<emplary damages
.2
Rule 777 5 PROSECUTION O) CICIL ACTION
Section ). Institution of criminal action and ci/il action. 4
(a) <here a !r#m#nal a!t#on #s #nst#tute"/ the !#&#l a!t#on for
re!o&ery of !#&#l l#a%#l#ty ar#s#n. from the o0ense !har.e" shall
%e "eeme" #nst#tute" $#th the !r#m#nal a!t#on unless the
o0en"e" 'arty $a#&es the !#&#l a!t#on/ reser&es the r#.ht to
#nst#tute #t se'arately or #nst#tute" the !#&#l a!t#on 'r#or to the
!r#m#nal a!t#on2
The reser&at#on of the r#.ht to #nst#tute se'arately the !#&#l
a!t#on shall %e ma"e %efore the 'rose!ut#on starts 'resent#n.
#ts e&#"en!e an" un"er !#r!umstan!es a0or"#n. the o0en"e"
'arty a reasona%le o''ortun#ty to ma6e su!h reser&at#on2
<hen the o0en"e" 'arty see6s to enfor!e !#&#l l#a%#l#ty
a.a#nst the a!!use" %y $ay of moral/ nom#nal/ tem'erate or
e+em'lary "ama.es $#thout s'e!#fy#n. the amount thereof #n
the !om'la#nt or #nformat#on/ the :l#n. fees therefor shall
!onst#tute a :rst l#en #n the ,u".ment a$ar"#n. su!h "ama.es2
<here the amount of "ama.es other than a!tual/ #s
s'e!#:e" #n the !om'la#nt or #nformat#on/ the !orres'on"#n.
D#n. fees shall %e 'a#" %y the o0en"e" 'arty u'on :l#n. thereof
#n !ourt2
E+!e't as other$#se 'ro&#"e" #n these Rules/ no :l#n. fees
shall %e re*u#re" for a!tual "ama.es2
No !ounter!la#m/ !ross4!la#m or th#r"4'arty !om'la#nt may
%e :le" %y the a!!use" #n the !r#m#nal !ase/ %ut a !ause of
a!t#on $h#!h !oul" ha&e %een the su%,e!t thereof may %e
l#t#.ate" #n a se'arate !#&#l a!t#on2
4%
A,-. 100, Rev. Penal C!0e'
48
A,-. 103, /)i0.
4&
(i-le ?7/// 8 Da4age#
38
(%) The !r#m#nal a!t#on for &#olat#on of atas Pam%ansa
l.2 99 shall %e "eeme" to #n!lu"e the !orres'on"#n. !#&#l
a!t#on2 No reser&at#on to :le su!h !#&#l a!t#on se'arately shall
%e allo$e"2
U'on :l#n. of the aforesa#" ,o#nt !r#m#nal an" !#&#l a!t#ons/
the o0en"e" 'arty shall 'ay #n full the :l#n. fees %ase" on the
amount of the !he!6 #n&ol&e"/ $h#!h shall %e !ons#"ere" as the
a!tual "ama.es !la#me"2 <here the !om'la#nt or #nformat#on
also see6s to re!o&er l#*u#"ate"/ moral/ nom#nal/ tem'erate or
e+em'lary "ama.es/ the o0en"e" 'arty shall 'ay a""#t#onal
:l#n. fees %ase" on the amounts alle.e" there#n2 If the
amounts are not so alle.e" %ut any of these "ama.es are
su%se*uently a$ar"e" %y the !ourt/ the :l#n. fees %ase" on the
amount a$ar"e" shall !onst#tute a :rst l#en on the ,u".ment2
<here the !#&#l a!t#on has %een :le" se'arately an" tr#al
thereof has not yet !ommen!e"/ #t may %e !onsol#"ate" $#th the
!r#m#nal a!t#on u'on a''l#!at#on $#th the !ourt try#n. #n the
latter !ase2 If the a''l#!at#on #s .rante"/ the tr#al of %oth
a!t#ons shall 'ro!ee" #n a!!or"an!e $#th se!t#on 9 of th#s Rule
.o&ern#n. !onsol#"at#on of the !#&#l an" !r#m#nal a!t#ons2
C O M M E N T S
ection *: of Rule **0 authori)es the o;ended party to intervene
in the criminal action to recover the civil damages arising from the
o;ense charged. The civil action for this purpose is deemed instituted
in the criminal case.
Rule *** provides the procedure on how the recovery of the civil
liability of the o;ender may be prosecuted in the criminal action,
without the necessity of fling a separate civil action. Cut the civil
liability of the accused is deemed separate, distinct and independent of
his criminal liability. Thus, the o;ender is not relieved from his civil
liability resulting from his illegal act or omission, regardless of whether
or not he has been convicted or ac5uitted and has served his sentence
consisting of deprivation of liberty or other rights.
&0
Cut the o;ended
party cannot recover twice for the same act or omission.
&*

Outl#ne of Se!t#ons 7 an" 9 of Rule 7773
50
A,-. 113, Revi#e0 Penal C!0e
51
A,-. 21%%, Civil C!0e
3&
*. 8eneral rule. ! Jhere a criminal action is instituted, the civil
action for recovery of the civil damages ar#s#n. from the o0ense
!har.e" is deemed instituted with the criminal action.
N22A The civil liability must arise from the acts or omissions
constituting the o;ense charged.
-. F<ceptions+
-.*. Jhere the o;ended party waives, e<pressly or impliedly, the
civil action9
-.-. Jhere he reserves the right to institute it separately9
-.-.*. The reservation should be made before the prosecution
starts presenting its evidence.
-.-.-. %n every case the o;ended party should be given
reasonable opportunity to ma#e such reservation.
-.,. Jhere the o;ended party instituted the civil action prior to
the criminal action.
-.,.*. Jhere the trial of the civil action has not started, it may be
consolidated with the criminal action, upon application with the court
trying the criminal action.
-.,.-. Jhere the trial of the civil action fled prior to the fling of
the criminal action has started, the proceedings in the civil action should
be suspended at whatever stage it may be found.
-.,.-.*. Aowever, if before judgment, the o;ended party moves
for its consolidation with the criminal action, the court trying the
criminal action may consolidate the two cases and decide them jointly.
-.,.-.-. uppose consolidation is ordered, how would such
consolidation a;ect the consolidated cases.
'a(. The evidence already adduced in the civil action shall be
automatically reproduced in the criminal case without prejudice to the
right of the prosecution to cross e<amine the witnesses presented by
the o;ended party in the criminal case and of the said party@s right to
present additional evidence.
40
'b(. The consolidated criminal and civil actions shall be treated
and decided jointly.
-.,.-.,. uppose the civil action is suspended what e;ect will such
suspension have on the right of the o;ended party to recover the civil
liability of the accused.
'a( 7uring the pendency of the criminal action, the running of the
period of prescription on the civil action, which cannot be instituted
separately or whose proceeding has been suspended, shall be tolled.
'b( The e<tinction of the penal action does not carry with it the
e<tinction of the civil action, e<cept where the accused dies after his
arraignment and during the pendency of the criminal action.
'c( %f the civil action is based on delict, it shall be deemed
e<tinguished where there is a fnding in the fnal judgment in the
criminal action that the act or omission from which the civil liability may
arise did not e<ist.
,. "fter the criminal action has been commenced, no separate
civil action arising from the o;ense charged can be instituted until fnal
judgment has been entered in the in the criminal action.
<hat :l#n. fees may %e !olle!te" from the o0en"e" 'arty
see6#n. to re!o&er !#&#l "ama.es ar#s#n. from the o0ense
!har.e"1
'*( Eor actual damages, no fling fees may be collected from the
o;ended party.
'-( Eor moral, nominal, temperate or e<emplary damages the
fling fees are assessed on the bases of the amounts alleged in the
information.
',( %f no amount is alleged but the o;ended party see#s or
recovers such damages, the fling fees shall constitute a frst lien on the
amount awarded, computed in accordance with the schedule prescribed
by the upreme Curt.
'.( Counter!claims or cross!claims, third!party complaint, etc. are
not allowed to the accused, but he may fle a separate civil action to
recover the same.
41
<hat !#&#l l#a%#l#t#es are "eeme" #nst#tute" $#th the
!r#m#nal a!t#on1
=nly civil damages arising from the o;ense charged are deemed
instituted with the criminal action.
Thus, civil liabilities arising from torts under "rticles ,-, ,,, and
,. of the Civil Code or those arising from 5uasi!delicts under "rticles
-*1: and -*11, or arising from culpa contractual are not deemed
instituted with the criminal action and may proceed separately and
independently of the criminal case. These civil liabilities are beyond the
coverage of Rule ***.
<hat #s the rule on re!o&ery of !#&#l l#a%#l#t#es for &#olat#on
of atas Pam%ansa l.2 991
The criminal action for violation of Catas Pambansa Clg. -- shall
be deemed to include the corresponding civil action. 4o reservation to
fle such civil action separately shall be allowed.
N223 Payment of fling fees in violation of Catas Pambansa Clg.
-- are computed based on the value of the chec#. This rule was laid
down to prevent the practice of creditors of using the threat of a
criminal prosecution to collect their credit free of charge.
&-

N22A Jhat ection *'b( of the Rules prohibits is the reservation to
fle the corresponding civil action in CP Clg. -- cases. Cut the Rule does
not intend to deprive the private complainant of his right to protect his
interest in criminal actions for estafa. The upreme Court did not intend
to leave the o;ended parties in estafa cases without any remedy to
protect their interest.
&,
4.C.9 Jhere the civil action is deemed instituted with the criminal
action, the civil liability is not e<tinguished by the ac5uittal of the
accused.
&.
52
R!0,ig+e3 v. P!n.e,,a0a, 415 SCRA 338
53
/)i0.
54
(+$a3 /7 v. C!+,- !. A$$eal#, 4%5 SCRA 3&8
42
%s the employer of the accused liable for the civil liabilities of the
latter arising from the o;ense chargedK
Ies. "n employer is, in substance and e;ect, a party in the
criminal action against his employee. The employer is subsidiarily
liable, as imposed on him by law, for the civil liability adjudged by the
court on the employee.
Aow may the o;ended party hold the employer liable for the civil
liability of his employee.
Cy proving the following+
'*( The e<istence of employer!employee relationship9
'-( That the employer is engaged in some #ind of agency9
',( That the employee is adjudged guilty of the wrongful act and
found to have committed the o;ense in the discharge of his
duties9
'.( The said employee is insolvent.
Section 3. When ci/il action may proceed independently. "
In the !ases 'ro&#"e" #n Art#!les E9/ EE/ EF an" 97>G of the
C#&#l Co"e of the Ph#l#''#nes/ the #n"e'en"ent !#&#l a!t#on may %e
%rou.ht %y the o0en"e" 'arty2 It shall 'ro!ee" #n"e'en"ently
of the !r#m#nal a!t#on an" shall re*u#re only a 're'on"eran!e of
e&#"en!e2 In no !ase/ ho$e&er/ may the o0en"e" 'arty re!o&er
"ama.es t$#!e for the same a!t of om#ss#on !har.e" #n the
!r#m#nal a!t#on2
C O M M E N T S
The acts and omissions enumerated in "rticles ,-, ,,, ,., and
-*1:!-*11 of the Civil Code contemplate of two types of court actions D
criminal action and civil action. Cut unli#e the rules under ections *
and - of Rule ***, these two types of court actions may be instituted
separately and simultaneously, and independent of one another. %n the
civil aspect, only a preponderance of evidence is need to sustain a
judgment.
43
Section 4. 0'ect of death on ci/il actions. " The "eath of
the a!!use" after arra#.nment an" "ur#n. the 'en"en!y of the
!r#m#nal a!t#on shall e+t#n.u#sh the !#&#l l#a%#l#ty ar#s#n. from the
"el#!t2 -o$e&er the #n"e'en"ent !#&#l a!t#on #nst#tute" un"er
se!t#on E of th#s Rule or $h#!h thereafter #s #nst#tute" to enfor!e
l#a%#l#ty ar#s#n. from other sour!es of o%l#.at#on may %e
!ont#nue" a.a#nst the estate or le.al re'resentat#&e of the
a!!use" after 'ro'er su%st#tut#on or a.a#nst sa#" estate/ as the
!ase may %e2 The he#rs of the a!!use" may %e su%st#tute" for
the "e!ease" $#thout re*u#r#n. the a''o#ntment of an e+e!utor
or a"m#n#strator an" the !ourt may a''o#nt a .uar"#an ad litem
for the m#nor he#rs2
The !ourt shall forth$#th or"er sa#" le.al re'resentat#&e or
re'resentat#&es to a''ear an" %e su%st#tute" $#th#n a 'er#o" of
th#rty "ays from not#!e.
A :nal ,u".ment entere" #n fa&or of the o0en"e" 'arty
shall %e enfor!e" #n the manner es'e!#ally 'ro&#"e" #n these
Rules for 'rose!ut#n. !la#ms a.a#nst the estate of the "e!ease"2
If the a!!use" "#es %efore arra#.nment/ the !ase shall %e
"#sm#sse" $#thout 're,u"#!e to any !#&#l a!t#on the o0en"e"
'arty may :le a.a#nst the estate of the "e!ease"
C O M M E N T S
The death of the accused after his arraignment and during the
pendency of the criminal action, including the pendency of his appeal,
shall e<tinguish not only his criminal liability but also his civil liability
which arose from the delict charged.
The reason for the rule is, that the civil liability deemed instituted
with the criminal action, or reserved to be instituted separately, or has
been instituted prior to the criminal action, refers to the civil liability
arising from the crime charged. Cut since the death of the accused after
he has been arraigned and during the pendency of the criminal action,
e<tinguishes his criminal liability, there could be no civil liability arising
from the crime charged, which is no longer in e<istence. %n other words,
44
the death of the accused prior to fnal judgment terminates his criminal
liability as well as the civil liability directly arising from and based solely
on the o;ense committed.
Aowever, where the claim for civil liability is based on torts
'"rticles ,-, ,, and ,. of the Civil Code(, or on 5uasi!delict '"rticles
-*1: and -*11(, or culpa contractual, the death of the accused will not
e<tinguish the right of action of o;ended party, who can institute the
civil claim against the estate or legal representative of the accused
without the necessity of appointment of an e<ecutor or administrator.
The heirs of the deceased may be substituted, and the minors
represented by the court appointed guardian ad litem.
%f the accused dies before he has been arraigned, the cases,
criminal and civil, shall be dismissed, without prejudice to any civil
action which the o;ended party may fle against the estate of the
deceased, regardless of the source of the civil liability.
May !onsol#"at#on of !#&#l a!t#on $#th the !r#m#nal a!t#on
%e allo$e" $here the !#&#l a!t#on #s not to enfor!e a !#&#l l#a%#l#ty
ar#s#n. from the !r#me !har.e"1
The court may order several actions pending before it to be tried
together, although the civil liability does not arise from the o;ense
charged, where they arose from the same act, event or transaction,
involve the same or similar issues, and depend largely or substantially,
on the same evidence9 provided, that the court has jurisdiction over the
cases to be consolidated and that a joint trial will not give one party an
undue advantage or prejudice the substantial rights of any of the parties
The rule that what determined the jurisdiction in criminal cases is
the prescribed penalty, regardless of the other imposable accessory or
other penalties, including the civil liability arising from o;ense charged
or predicated therein irrespective of the #ind, nature, value or amount
thereof, does not apply where the civil liability arose from other sources
of obligation. Aence, the court must have jurisdiction over both cases
To what civil action may the rule on prescription of action applyK
The rule on prescription of civil action will not apply where the civil
action has been reserved or instituted separately, because the
proceedings therein are suspended or cannot proceed until the
termination of the criminal action. Cut where the civil actions can
proceed separately and independently of the criminal action prescription
will toll on them.
45
Section 5. 1ud&ment in ci/il action not a -ar. " A :nal
,u".ment ren"ere" #n a !#&#l a!t#on a%sol&#n. the "efen"ant
from !#&#l l#a%#l#ty #s not a %ar to the !r#m#nal a!t#on a.a#nst the
"efen"ant for the same a!t or om#ss#on2
C O M M E N T S
N22A ection & of this Rule spea#s of 3the same act or omission6,
not of the civil liability 3arising from the o;ense charged.6
"n act or omission may be the source of di;erent civil liability+
civil liability arising from the o;ense charged, or civil liability arising
from torts or 5uasi delict, or civil liability arising from culpa contractual.
Gay the court adjudge civil liability despite the ac5uittal of the
accused in the criminal caseK
Ies, in the following instances the court may adjudge civil liability
despite the ac5uittal of the accused in the criminal case, namely+
*. Jhere the ac5uittal contains a declaration that the liability of
the accused is not criminal but civil only9
-. Jhere the ac5uittal is based on reasonable doubt9
,. Jhere the civil liability is not derived or based on the criminal
act of which the accused is ac5uitted.
Jhat is the e;ect of a judgment of ac5uittal on the civil liability of
the
defendantK
%f the accused is ac5uitted on the ground that his guilt has not
been proved beyond reasonable doubt, his ac5uittal will not bar
recovery of civil liability which may be demonstrated by mere
preponderance of evidence.
Cut if his ac5uittal is because the court fnds that no crime has
been committed, his ac5uittal bars recovery of civil liability
uppose the court fnds that the guilt of the accused has not been
established beyond reasonable doubt and renders judgment ac5uitting
him. Gay the court adjudge the civil liability of the accused in the same
judgment of ac5uittalK
41
%n the case of Padilla v. Court of "ppeals
&&
and in subse5uent
cases, the upreme Court held that the trial court may award civil
damages in the same judgment even if the accused is ac5uitted. %n
other words, despite the ac5uittal of the accused, if the act of omission
from which civil liability might arise in fact e<ists and the ac5uittal is
merely based on the ground that the guilt of the accused has not been
demonstrated beyond reasonable doubt, the trial court should award
civil liability in favor of the o;ended party in the same criminal action.
Section . Suspension -y reason of pre2udicial 3uestion. "
A 'et#t#on for sus'ens#on of the !r#m#nal a!t#on %ase" u'on the
'en"en!y of a 're,u"#!#al *uest#on #n a !#&#l a!t#on may %e :le"
#n the o;!e of the 'rose!utor (or the !ourt) !on"u!t#n.
'rel#m#nary #n&est#.at#on2 <hen the !r#m#nal a!t#on has %een
:le" #n !ourt for tr#al/ the 'et#t#on to sus'en" shall %e :le" #n
the same !r#m#nal a!t#on at any t#me %efore the 'rose!ut#on
rests2
Section #2 0lements of pre2udicial 3uestion. - The
elements of a 're,u"#!#al *uest#on are (a) the 're&#ously
#nst#tute" !#&#l a!t#on #n&ol&es an #ssue s#m#lar or #nt#mately
relate" to the #ssue ra#se" #n the su%se*uent !r#m#nal a!t#on/
an" (%) the resolut#on of su!h #ssue "eterm#nes $hether or not
the !r#m#nal a!t#on may 'ro!ee"2
C O M M E N T S
N22A ?nder ection - of Rule ***, after the criminal has been
commenced, the separate civil action arising from the o;ense charged
cannot be instituted until fnal judgment has been entered in the
criminal action, and in case a civil action has been instituted before a
criminal action is fled, the prior civil action shall be suspended in
whatever stage it may be found before judgment on the merits has
been rendered thereon.
Aowever, where, in a previously instituted civil action, a prejudicial
5uestion is raised and pending its resolution, the proceeding in the
criminal action shall be suspended until the prejudicial 5uestion shall
have been resolved
55
12& SCRA 558
4%
Jhat is your concept of a prejudicial 5uestionK
" prejudicial 5uestion is understood in law as that issue raised in a
previously instituted civil case, the resolution of which must precede the
criminal action and which re5uires a decision before a fnal judgment
can be rendered in the criminal action, and with which said 5uestion is
closely connected
&:

" civil 5uestion is prejudicial when it refers to a fact separate and
distinct from the o;ense but intimately connected with it, which
5uestion determines the guilt of innocence of the accused.
&1

The doctrine of prejudicial 5uestion comes into play generally in a
situation where the civil and criminal actions are pending and an issue
in the former must be preemptively resolved before the criminal action
may proceed.
&/
Jhat are the essential re5uisites in order that a prejudicial
5uestion may e<istsK
*. There must be two pending cases involved D one is a civil case
and the other must be a criminal case
&2

-. The civil action must have been instituted previous to the
criminal action9
,. The civil action involves an issue similar to or intimately related
with the issue raised in the subse5uent criminal action9
.. The resolution of such issue raised in the civil case determines
whether or not the criminal action may proceed.
Cefore whom may the issue of the e<istence of a prejudicial
5uestion be raisedK
51
Be,)a,i v. C!ne$i!n, e- al., 40 Phil. 83%.
5%
De Le!n v. 2a)anag, %0 Phil. 202' 2en0i!la, e- al., v. 2aa0aeg, e-., e- al., ;.R. 5!.
L8118%4, Fe). 2%, 1&11 .
58
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2 2004 "0., $$35%
5&
Se+,i-* Ban9 C!,$!,a-i!n v. 7i-!,i!, 418 SCRA 10& <2005=' @+lien!, e- al., v. C.A., e- al.,
;.R. 5!. 141315, 5!v. 2%, 2002' Lan0 Ban9, e-. v. Jain-!, 121 SCRA 315
48
*. Cefore a criminal action is fled for trial, a petition for
suspension of the criminal action on the ground of prejudicial 5uestion
in a civil case may be fled in the oBce of the prosecutor conducting
preliminary investigation.
-. "fter the criminal action has been fled in court, the petition for
suspension of the criminal case on the ground of prejudicial 5uestion
should be fled in the court conducting trial on the merits in the criminal
action at any time before the prosecution rests.
Rule 779 5 PRELIMINAR@ INCESTIHATION
Section ). +reliminary In/esti&ation defned4 .hen
re3uired. " Prel#m#nary #n&est#.at#on #s an #n*u#ry or 'ro!ee"#n.
to "eterm#ne $hether there #s su;!#ent .roun" to en.en"er
$ell4foun"e" %el#ef that a !r#me has %een !omm#tte" an" the
res'on"ent #s 'ro%a%ly .u#lty thereof/ an" shoul" %e hel" for
tr#al2
E+!e't as 'ro&#"e" #n se!t#on > of th#s Rule/ a 'rel#m#nary
#n&est#.at#on #s re*u#re" to %e !on"u!te" %efore the :l#n. of a
!om'la#nt or #nformat#on for any o0ense $here the 'enalty
'res!r#%e" %y la$ #s at least four (F) years/ t$o (9) months an"
one (7) "ay $#thout re.ar" to the :ne2
CO M M E N T S
4&
7efned. ! Preliminary investigation is an in5uiry or proceeding to
determine+ '*( whether there is suBcient ground to support a well!
grounded belief that a crime has been committed, and '-( that the
suspect is probably the culprit, who should be held for trial.
4ature of the proceedings. D The proceeding is summary and
in5uisitorial, but subject to the re5uirements of the due process of law.
The right to preliminary investigation is not a constitutional right
guaranteed by the Constitution, but a mere statutory privilege.
4onetheless, it is considered a component part of due process.
:0

Purposes of preliminary investigation.! *( To determine whether
there is suBcient ground to engender a well!founded belief that a crime
has been committed, and -( to determine whether the respondent is
probably the person who committed the crime and should be held for
trial.
Muantum of evidence necessary to achieve these purposes+
*. "s to whether a crime has been committed, the evidence
should be suBcient to sustain a well!founded belief, based on sound
reasoning and trust worthy information so as to justify a prudent man@s
belief that an o;ense has been committed. %t connotes a combination
of facts, information and personal belief beyond mere opinion, suspicion
and conjecture.
-. "s to whether the respondent is probably the guilty party, the
evidence must pass the test of 3probable cause6, which, as used in
preliminary investigation, has been defned as the e<istence of facts and
circumstances as would e<cite the belief in a reasonable mind acting on
such facts and circumstances that the person charged most li#ely
committed the o;ense for which he must be prosecuted.
:*


The term 6probable cause6 however, does not re5uire actual or
positive cause, nor does it import absolute certainty of guilt.
:-
Precisely,
there is still the need for trial to receive the evidence of the prosecution
to prove with moral certainty the guilt of the accused. " fnding of
probable cause needs only to rest o evidence showing that a crime has
been committed and more li#ely than not, it was committed by the
accused D it need not be based on clear and convincing evidence of
10
Ong v. San0igan)a*an, 4%0 SCRA % <2005=' 2a-ala4 v. San0igan)a*an, 455 SCRA %31 <2005=
11
A+na v. De$+-* O4)+0#4an !. A+e3!n, 450 SCRA 232
12
F+en-e#, J,. v. O..ie !. -he O4)+0#4an, 4%4 SCRA %%&
50
guilt, neither on evidence establishing guilt beyond reasonable doubt,
and defnitely not on evidence establishing absolute certainty of guilt.
:,
7uty of the court upon fling of the %nformation
?pon the fling of the %nformation, the judge to whom the case is
assigned has the following options+ '*( dismiss the case if the evidence
on record clearly failed to establish probable cause9 '-( if he fnds
probable cause, issue a warrant of arrest9 and ',( in case of doubt as to
the e<istence of probable cause, order the prosecutor to present
additional evidence within fve days from notice9 '.( resolve the issue
within thirty days from the fling of the information.
:.

%n what cases when preliminary investigation is mandatoryK
Preliminary investigation is re5uired to be conducted where the
penalty prescribed for the crime charged is at least four '.( years, two
'-( months and one '*( day of imprisonment, without regard to the fne.
(Minimum of the maximum period of prision correccional.)
Jhen may preliminary investigation be dispensed withK
Jhen a person is lawfully arrested without a warrant involving an
o;ense which re5uires preliminary investigation, the complaint or
information may be fled in the proper court by a prosecutor without
conducting preliminary investigation, provided that an in5uest is
conducted in accordance with e<isting rules. %n the absence or
unavailability of an in5uest prosecutor, the complaint may be fled by
the o;ended party or peace oBcer directly with the proper court on the
basis of the aBdavit of the o;ended party or the arresting oBcer
'ection 1, *
st
par., Rule **-(.
%n case of warrantless arrest, is the arrestee entitled to as# for
preliminary investigationK
Ies. Cefore the complaint or information is fled, the arrestee may
as# for a
13
De ;+34an v. ;!n3ale# ///, 111 SCRA 541
14
Pe!$le v. C!+,- !. A$$eal#, 121 SCRA 352
51
preliminary investigation in accordance with Rule**-, but then he must
sign a waiver of the provisions of "rticle *-& of the Revised Penal Code,
as amended, in the presence of his counsel. Cut notwithstanding such
waiver, he may apply for bail. The investigation must be terminated
within ffteen '*&( days from its inception. '%d., -
nd
par.(
uppose the accused was lawfully arrested without warrant and
the complaint or information was fled in court without preliminary
investigation, may the arrestee still as# for such preliminary
investigationK
Ies. "fter the fling of the complaint or information in court
without preliminary investigation, the accused may, within fve '&(
days from the time he learns of its fling, move for a preliminary
investigation with same right to adduce evidence in his defense '%d., ,
rd
par.(. The motion must be fled with the court assigned to try the case.
"fter the lapse of such period of fve '&( days without the accused
ma#ing any move the right is deemed lost.
The absence of preliminary investigation should be raised before
the accused enters his plea9 if made afterwards, he shall be deemed to
have waived his right thereto.
The accused must refuse to plead upon arraignment and object to
any further proceedings on the ground of absence of preliminary
investigation, and insists on his right thereto. %f denied he must fle the
special civil action for certiorari andHor prohibition.
Aow will the absence of preliminary investigation, where one is
re5uired, a;ect the criminal proceedings in courtK
%t must be stressed that the right to a preliminary investigation is
not a constitutional right but merely a right conferred by statute.
Preliminary investigation is an essential component of due process.
Aowever, its absence will not impair the validity of the information or
otherwise render it defective. 4either will such absence a;ect the
jurisdiction of the court, nor would it constitute a ground for 5uashing
the information. Cut where the accused insists on his statutory right to
a preliminary investigation, the trial court, should not dismiss the
information, but should hold in abeyance the criminal proceedings and
52
order the government prosecutor to conduct a preliminary
investigation.
:&

Section 2. 5!cers to conduct preliminary in/esti&ation. -
The follo$#n. may !on"u!t 'rel#m#nary #n&est#.at#on3
(a) Pro&#n!#al or C#ty Prose!utors an" the#r ass#stantsA
I(%) (u".es of Mun#!#'al Tr#al Courts an" Mun#!#'al C#r!u#t
Tr#al CourtsA (N223 Pursuant to "G!4o. 0&!/!-:!C, dated =ct. -,-00&,
the authority to conduct preliminary investigation has been withdrawn
from judges of the Getropolitan, Gunicipal and Gunicipal Circuit Trial
Courts. )J
(!) Nat#onal an" Re.#onal State Prose!utorsA an"
(") Other o;!ers as may %e author#=e" %y la$2
The#r author#ty to !on"u!t 'rel#m#nary #n&est#.at#on shall
#n!lu"e all !r#mes !o.n#=a%le %y the 'ro'er !ourt #n the#r
res'e!t#&e terr#tor#al ,ur#s"#!t#on2
C O M M E N T S
Jho are those other oBcers mentioned in paragraph 'd( of
ection -, Rule **-, as author#=e" to !on"u!t 'rel#m#nary
#n&est#.at#on1
*. The =mbudsman with respect to o;enses cogni)able by the
andiganbayan, including the investigation of ill!gotten wealth cases9
::
-. The chief legal oBcer of the Commission on Flection with
respect to criminal violation of the election laws9
,. The Commission on %mmigration and 7eportation with respect
to violations of R" &:-, the "lien Registration "ct9
.. The "nti!7ummy Coard with respect to violation of the anti!
dummy law.
:1

Aow will the criminal proceedings be a;ected if the preliminary
investigation is conducted by unauthori)ed personsK
15
7illa..l!, v. 7iva,, ;.. R. 5!. 134%44, Jan. 11, 2001' San Ag+#-in v. Pe!$le, ;.R. 5!.15811,
A+g. 31, 2004' A--*. Se,a$i! v. San0igan)a*an, ;.R. 5!. 148418, Jan. 28, 2003
11
Panlili! v. San0igan)a*an, 210 SCRA 421
1%
B!)el v. C!ne$i!n, 5 SCRA 428
53
The proceedings are null and void as if a complaint or information
is fled in court without preliminary investigation where one is re5uired,
and the court does not ac5uire jurisdiction over the subject matter of
the criminal action.
Section 3. +rocedure 6of preliminary in/esti&ation "
outlined78
*. C=GPL"%4T+ Eorm, contents, and attachments. ! The
complaint shall state+ 'a( the name and address of the complainant9 'b(
the name and address of the respondent's(9 'c( brieNy, the acts or
omission complained of9 'd( the designation of the o;ense charged9 'e(
the complaint should be in an aBdavit form, sworn before any public
prosecutor having jurisdiction of the place where the act or omission
complained of too# place.

*!a. The complaint shall be accompanied by the aBdavit of the
complainant and his witnesses, as well as other supporting documents
to establish probable cause.
*!b. The complaint and its attachments should be in the number
of copies as there are respondents plus two '-( copies, one for the
investigating oBcer, and the other copy for fle of the complainant.
*!c. The aBdavits shall be subscribed and sworn before any
prosecutor or government oBcial authori)ed to administer oath.
*!d. %n the absence or unavailability of such prosecutor or
government oBcial, the aBdavits shall be subscribed and sworn before
a notary public who must certify that he is satisfed that the aBants
voluntarily e<ecuted and understand their respective aBdavits.
-. "CT%=4 of the investigating oBcer. ! Jithin ten '*0( days after
the fling of the complaint, the investigating oBcer shall determine
whether to give due course to the complaint, or to dismiss it outright
because he fnds no ground to continue the investigation. Cut if he
decides to give it due course, he shall issue a subpoena to the
respondent's( attaching a copy of the complaint and its supporting
aBdavits and other documents.
-!a. The subpoena shall re5uire the respondent's( to submit
hisHtheir counter!aBdavit's(, the aBdavits of hisHtheir witnesses and
54
other supporting documents relied upon for hisHtheir defenses, within
ten '*0( days from receipt of the subpoena.
-!b. The respondent's( shall have the right to e<amine the
evidence submitted by the complainant, which he may not have been
furnished and to copy them at his own e<pense.
-!c. %f the evidence is voluminous, the complainant may be
re5uired to
cite the specifc portion thereof which he intends to present in evidence.
,!d. =bject evidence need not be furnished the respondent's( but
heHthey may e<amine them and ta#e photos thereof at hisHtheir own
e<pense.
.. C=?4TFR!"EE%7"$%T+ Eorm and attachments. ! The counter!
aBdavit's( shall be subscribe and sworn by the respondent's(, and
certifed in the same manner as the complaint is certifed, with copies
thereof furnished the complainant. 4o motion to dismiss shall be
allowed to the respondent's(
&. %f the respondent's( cannot be subpoenaed, or if subpoenaed,
he does not submit his counter!aBdavit within the ten '*0( days period,
the investigating oBcer shall resolve the complaint based on the
evidence presented by the complainant.
:. The investigating oBcer may set a hearing if there are facts
and issues to be clarifed from the party or a witness. The parties can
be present at the hearing but without the right to e<amine or cross!
e<amine each other. They may however submit to the investigating
oBcer 5uestions which may be as#ed to the party or witness concerned.
1. Jithin ten '*0( days after the investigation the investigating
oBcer shall determine whether or not there is suBcient ground to hold
the respondent for trial.
Section 4. 9esolution of in/esti&atin& prosecutor and its
re/ie.. - If the #n&est#.at#n. 'rose!utor :n"s !ause to hol" the
res'on"ent for tr#al/ he shall 're'are the resolut#on an"
#nformat#on2 -e shall !ert#fy un"er oath #n the #nformat#on that
he/ or as sho$n %y the re!or"/ an author#=e" o;!er/ has
'ersonally e+am#ne" the !om'la#nant an" h#s $#tnesses/ an"
that there #s reasona%le .roun" to %el#e&e that a !r#me has
55
%een !omm#tte" an" that the a!!use" #s 'ro%a%ly .u#lty thereofA
that the a!!use" $as #nforme" of the !om'la#nt an" of the
e&#"en!e su%m#tte" a.a#nst h#mA an" that he $as .#&en an
o''ortun#ty to su%m#t !ontro&ert#n. e&#"en!e2 Other$#se/ he
shall re!ommen" the "#sm#ssal of the !om'la#nt2
<#th#n :&e (K) "ays from the resolut#on/ he shall for$ar"
the re!or" of the !ase to the 'ro&#n!#al or !#ty 'rose!utor or to
the !h#ef state 'rose!utor/ or to the Om%u"sman or h#s "e'uty
#n !ases of o0enses !o.n#=a%le %y the San"#.an%ayan #n the
e+er!#se of #ts or#.#nal ,ur#s"#!t#on2 They shall a!t on the
resolut#on $#th#n ten (78) "ays from the#r re!e#'t thereof an"
shall #mme"#ately #nform the 'art#es of su!h a!t#on2
No !om'la#nt or #nformat#on may %e :le" or "#sm#sse" %y
an #n&est#.at#n. 'rose!utor $#thout the 'r#or $r#tten author#ty
or a''ro&al of the 'ro&#n!#al or !#ty 'rose!utor or the !h#ef
state 'rose!utor or the Om%u"sman or h#s "e'uty2

<here the #n&est#.at#n. 'rose!utor re!ommen"s the
"#sm#ssal of the !om'la#nt %ut h#s re!ommen"at#on #s
"#sa''ro&e" %y the 'ro&#n!#al or !#ty 'rose!utor or !h#ef state
'rose!utor or the Om%u"sman or h#s "e'uty on the .roun" that
a 'ro%a%le !ause e+#sts/ the latter may/ %y h#mself/ :le the
#nformat#on a.a#nst the res'on"ent/ or "#re!t another ass#stant
'rose!utor or state 'rose!utor to "o so $#thout !on"u!t#n.
another 'rel#m#nary #n&est#.at#on2
If u'on 'et#t#on %y a 'ro'er 'arty un"er su!h Rules as the
De'artment of (ust#!e may 'res!r#%e or motu proprio: the
Se!retary of (ust#!e re&erses or mo"#:es the resolut#on of the
'ro&#n!#al or !#ty 'rose!utor or !h#ef state 'rose!utor/ he shall
"#re!t the 'rose!utor !on!erne" e#ther to :le the !orres'on"#n.
#nformat#on $#thout !on"u!t#n. another 'rel#m#nary
#n&est#.at#on/ or to "#sm#ss or mo&e for "#sm#ssal of the
!om'la#nt or #nformat#on $#th not#!e to the 'art#es2 The same
Rule shall a''ly #n 'rel#m#nary #n&est#.at#ons !on"u!te" %y the
o;!ers of the O;!e of the Om%u"sman2
Se!t#on K2 Resolut#on of #n&esti&atin& 2ud&e and its
re/ie.. - (Re'eale" %y AM No2 8K4L49G4SC)
51
Section . When .arrant of arrest may issue. <#th#n ten
(78) "ays from the :l#n. of the !om'la#nt or #nformat#on/ the
,u".e shall 'ersonally e&aluate the resolut#on of the 'rose!utor
an" #ts su''ort#n. e&#"en!e2 -e may #mme"#ately "#sm#ss the
!ase #f the e&#"en!e on re!or" !learly fa#ls to esta%l#sh 'ro%a%le
!ause2 If he :n"s 'ro%a%le !ause he shall #ssue a $arrant of
arrest/ or a !omm#tment or"er $hen the !om'la#nt or
#nformat#on $as :le" 'ursuant to Se!t#on > of th#s Rule2 In !ase
of "ou%t on the e+#sten!e of 'ro%a%le !ause/ the ,u".e may
or"er the 'rose!utor to 'resent a""#t#onal e&#"en!e $#th#n :&e
(K) "ays from not#!e an" the #ssue must %e resol&e" %y the
!ourt $#th#n th#rty (E8) "ays from the :l#n. of the !om'la#nt or
#nformat#on2
When .arrant of arrest not necessary. - A $arrant of
arrest shall not #ssue #f the a!!use" #s alrea"y un"er "etent#on/
or #f the !om'la#nt or #nformat#on $as :le" 'ursuant to se!t#on
> of th#s Rule or #s for an o0ense 'enal#=e" %y :ne only2 The
!ourt shall 'ro!ee" #n the e+er!#se of #ts or#.#nal ,ur#s"#!t#on2
(N223 "s modifed to conform with "G 4o. 0&!/!-:!C.(
C O M M E N T S
Jhen the penalty prescribed by law for the o;ense charged is four
'.( years, two '- months and one '*( day or more, the preliminary
investigation shall be conducted by a public prosecutor, at the
conclusion of which he shall resolve whether probable cause e<ists to
hold the accused for trial. %f the investigating prosecutor fnds the
e<istence of probable cause and recommends to hold the accused for
trial, he shall forwards his resolution, together with the information, to
the reviewing prosecutor, who may either approve or disapprove the
recommendation. %f his recommendation is approved the investigating
prosecutor fles the information with the proper court having jurisdiction
over the o;ense charged, together with his certifcation of the e<istence
of probable cause, his resolution, and the aBdavit of the complainant
and counter!aBdavit's( of the respondent's(, if any9 the sworn
statements of the witnesses and other evidence adduced during the
preliminary investigation.
The judge of the court where the complaint or information was
fled shall personally review and evaluate the resolution of the
investigating prosecutor, the aBdavits of the parties and the sworn
statement of their witnesses and the other evidence submitted to the
prosecutor, as well as the complaint or information, to determine
5%
whether probable cause e<ists to justify the issuance of a warrant of
arrest.
Eormerly, the judge may simply rely on the certifcation of the
investigating prosecutor regarding the e<istence of probable cause.
Aence, upon fling of the complaint or information, the judge issues a
warrant of arrest as a matter of course. Aowever, in the case of oliven
v. Ga#asiar
:/
and reiterated in the subse5uent cases,
:2
the upreme
Court modifed the procedure. Pursuant to the mandate of the *2/1
Constitution, the upreme Court ruled that although the judge is not
obliged to re!ta#e the testimonies of the complainant and his witnesses,
he should, however, personally review and evaluate the resolution of
the investigating prosecutor and the supporting evidence submitted by
the prosecutor together with the complaint or information, and on the
bases of such review and evaluation determine whether probable cause
e<ists to justify him to issue a warrant of arrest.
Aowever, if from his personal review and evaluation he fnds no
probable cause or doubts its e<istence, he may disregard the
prosecutor@s fndings and
re5uire the latter to submit additional evidence to aid the court in
arriving at the conclusion, whether probable cause e<ists for the
issuance of an arrest warrant.
%t should be stressed, however, that while the upreme Court
underscored
the e<clusive and personal responsibility of the judge to satisfy himself
of the e<istence of probable cause for the issuance of a warrant of
arrest, he is not re5uired to personally and actually e<amine the
complainant and his witnesses. %t is suBcient that he ma#es a personal
review and evaluation of the resolution of the prosecutor in relation with
the supporting evidence submitted by the prosecutor in determining the
probability, not the certainty, of guilt of the accused.
uppose the judge, in his evaluation of the resolution of the
investigating prosecutor and the evidence submitted by the latter, is
not satisfed as to the e<istence of probable cause to justify him to issue
a warrant of arrest, but the prosecutor refuses or fails to adduce further
evidence as re5uired by the judge, how should the judge react under
the circumstancesK
18
11% SCRA 3&3
1&
"n,ile v. Sala3a,, 181 SCRA21%' Pe!$le v. /n-ing, 18% SCRA %88' Li4 v. FeliC, 1&4 SCRA 2&2
58
The judge should dismiss the case. Ae cannot issue a warrant of
arrest, because of his fnding of the none!e<istence of probable cause,
and unless the accused is arrested and brought to court for trial, and
enters his plea, the court does not ac5uire jurisdiction over the person
of the accused as well as over the issue.
10

%s it necessary for the court to issue an =rder pronouncing the
e<istence of probable cause to support his issuance of a warrant of
arrestK
Ies. The court should issue an =rder e<plicitly pronouncing the
e<istence of probable cause prior to his issuance of a warrant of arrest.
1*
"lthough the respective fndings of probable cause by the
prosecutor and by the judge are base on the same, or substantially the
same, evidence they have distinct and di;erent objectives. %n the case
of the prosecutor his objective is to determine whether there is
reasonable ground to believe that a crime has been committed and that
the accused probably committed the o;ense charged and should be
held for trial, while the objective the judge is to determine whether
there is a necessity of placing the accused under immediate custody in
order not to frustrate the ends of justice.
1-
Jhen is a warrant of arrest not necessary even if a complaint or
information has been fled in court for o;enses which re5uire
preliminary investigationK
*. Jhen the accused is already under detention9 what the court
should issue is an order of commitment.
-. Jhen the penalty for the o;ense charged is only a fne.
" person lawfully arrested without a warrant may be directly
charged in court without undergoing preliminary investigation, although
one is re5uired, provided an in5uest has been conducted. Jhat do you
understand by the term 3in5uest6K
%0
Pe!$le v. San0igan)a*an, 43& SCRA 404 <2004=
%1
R!)e,-# v. C!+,- !. A$eal#, 254 SCRA 30%
%2
6! v. Pe!$le, 280 SCRA 315
5&
3%n5uest6 signifes a summary investigation of the person lawfully
arrested without warrant conducted by a public prosecutor for fling of a
complaint or information directly in court without the need of
preliminary investigation, although one is re5uired, only on the sole
basis of the aBdavit of the complainant or of the arresting oBcer or
person.
Gay a person lawfully arrested without warrant demand
preliminary investigation before a complaint or information is fled in
courtK
Ies, provided he signs a waiver of the provisions of "rticle *-& of
the Revised Penal Code in the presence of his counsel.
"rticle *-& of the Revised Penal Code penali)es a public oBcer or
employee who detains a person on some legal grounds, but fails to
deliver the person detained to the proper judicial authority within the
periods provided in the said "rticle.
uppose the persons lawfully arrested without warrant is charged
in court without undergoing preliminary investigation where one is
re5uired, may he still as# for preliminary investigationK
Ies, provided he as# for such preliminary investigation within fve
'&( days from the time he learns of the fling of the complaint or
information against him. Cy then he shall have the same right to
adduce evidence in his defense. "fter the lapse of such period without
fling a motion for preliminary investigation, he shall be deemed to
have waived such right.
Section %. 9ecords. - (a) 9ecord supportin& the
information or complaint. " An #nformat#on or !om'la#nt :le" #n
!ourt shall %e su''orte" %y the a;"a&#ts an" !ounter4
a;"a&#ts of the 'art#es an" the#r $#tnesses/ to.ether $#th the
other su''ort#n. e&#"en!e an" the resolut#on of the !ase2
(-) 9ecord of preliminary in/esti&ation. " The re!or" of the
'rel#m#nary #n&est#.at#on shall not form 'art of the re!or" of the
!ase2 -o$e&er/ the !ourt/ on #ts o$n mot#on or on mot#on of
any 'arty/ may or"er the 'ro"u!t#on of the re!or" (of the
10
'rel#m#nary #n&est#.at#on) or any of #ts 'art $hen ne!essary to
the resolut#on of the !ase or any #n!#"ent there#n/ or $hen #t #s
to %e #ntro"u!e" as an e&#"en!e #n the !ase %y the re*uest#n.
'arty2
C O M M E N T S
The information or complaint fled by the prosecutor with the court
should be accompanied by+ '*( his resolution9 '-( the aBdavits and
counter!aBdavits of the parties and their witnesses9 ',( the other
supporting evidence submitted by the parties to the prosecutor.
The records of the preliminary investigation need not be elevated
to the court, unless on its own motion, or on motion by any of the
parties, the court orders that the records of the preliminary investigation
or any part thereof be forwarded to the court to be used or introduced
by the re5uesting party as part of his evidence. Aowever, such records
of the preliminary investigation do not and will not form part of the
records of the case before the trial court, unless the same are formally
o;ered in evidence.
Section (. Cases not re3uirin& a preliminary in/esti&ation
nor co/ered -y the 9ule on Summary +rocedure. "
(a) If fled .ith the prosecutor. " If the !om'la#nt #s :le"
"#re!tly $#th the 'rose!utor #n&ol&#n. an o0ense 'un#sha%le %y
#m'r#sonment of less than four (F) years/ t$o (9) months an"
one (7) "ay/ the 'ro!e"ure outl#ne" #n se!t#on E(a) of th#s Rule
shall 'not( %e o%ser&e"2 The 'rose!utor shall a!t on the
!om'la#nt %ase" on the a;"a&#ts an" other su''ort#n.
"o!uments su%m#tte" %y the !om'la#nant $#th#n ten (78) "ays
from :l#n.2
N223 Paragraph 'b( of this section contemplates a preliminary
investigation to be conducted by a judge of the frst level court. %n view
of "G 4o. 0&!/!-:!C, the authority of judges of such courts to conduct
preliminary investigation has been withdrawn from them.
RULE 77E 5 A R R E S T
Section ). Defnition of arrest. - Arrest #s the ta6#n. of a
'erson #nto !usto"y #n or"er that he may %e %oun" to ans$er
for the !omm#ss#on of an o0ense2
11
Section 2. ,rrest: ho. made. - An arrest #s ma"e %y an
a!tual restra#nt of a 'erson to %e arreste"/ or %y h#s su%m#ss#on
to the !usto"y of the 'erson ma6#n. the arrest2
No &#olen!e or unne!essary for!e shall %e use" #n ma6#n.
an arrest2
The 'erson arreste" shall not %e su%,e!t to a .reater restra#nt
than #s ne!essary for h#s "etent#on2
C O M M E N T S
The right of the people to be secure in their persons against
unreasonable searches and sei)ures is inviolable, and no warrant of
arrest shall issue e<cept upon probable cause to be determined
personally by the judge after e<amination under oath or aBrmation of
the complainant and the witnesses he may produce, and particularly
describing the persons to be sei)ed.
1,

The fair implication of the Constitution is that as a rule, no
arrest is reasonable e<cept under a valid warrant issued by a judge, and
no one else, in accordance with law, the limits of which being clearly
defned and the scope, particularly determined.
The validity of an arrest and the manner and method of its
accomplishment have a direct bearing upon the admissibility of the
evidence procured thereby. The constitutional mandate is that any
evidence obtained as a conse5uence of an illegal arrest is inadmissible
in evidence for any purpose in any proceeding.
1.
Aence, an arrest, and
also any search and sei)ure, tainted with illegality because of a
constitutional violation will also taint the incriminatory evidence yielded
as a result thereof. >ust as a poisonous tree will yield poisonous fruit, a
tainted arrest also taints the evidence illegally procured.
%n order for a judicial tribunal to have jurisdiction over an
individual for trial in a criminal case he must be lawfully brought before
the appropriate court which has jurisdiction over the alleged o;ense.
"nd in order for an individual to answer a criminal charge, it is
necessary to obtain frst physical custody of his person, and his
apprehension must be achieved in accordance with the mandates of the
law. "rrest is intended to erve and does serve the end of bringing the
%3
See Se. 2, A,-ile ///, 1&8% C!n#-i-+-i!n.
%4
See Se. 3, $a,. D2E, /)i0..
12
accused person within the custody and control of the law to start the
wheel of justice to grind.
Jhat is a warrant of arrestK
" warrant of arrest is a written form of legal process duly issued
by a judge, directed to peace oBcers commanding the apprehension of
a person or persons, whose names are inscribed in the warrant and
directing that those person or persons be arrested and brought before
the issuing court having jurisdiction of the o;ense therein designated to
answer for the crime therein imputed on him.
1&
The language of ection -, "rticle %%% of the *2/1 Constitution
states that 3no warrant of arrest shall issue e<cept on probable cause6.
Jhat does probable cause for issuance of arrest warrant signifesK
Probable cause for issuance of an arrest warrant must be more
than mere supposition and should be determined and supported by
facts that would lead a reasonable, discreet and prudent man to believe
that an o;ense has been committed and that the person sought to be
arrested has probably committed it and should held in custody for trial.
1:
The complainant or applicant must ma#e positive statements under
oath of facts constituting a criminal o;ense, of hisHtheir own personal
#nowledge. Gere information and belief are not enough to support the
issuance of an arrest warrant.
Probable cause has been held to signify a reasonable ground of
suspicion supported by circumstances suBciently strong in themselves
to warrant a cautious man@s belief that the person accused is, more
li#ely than not, guilty of the o;ense with which he charged. The ground
of suspicion are reasonable when the suspicion that the person to be
arrested is probably guilty of committing an o;ense, is based on actual
facts, that is, supported by circumstances suBciently strong in
themselves to create the probable cause of guilt of the person to be
arrested.
11

Jhat is the 5uatum of evidence necessary to establish the
e<istence of probable cause to justify the issuance of a warrant of
arrestK
%5
7a,!n, J!#e$h A., Sea,he#, Sei3+,e# an0 /44+ni-ie#, 7!l. 1, $$. 203
%1
/)i0., $$. 208
%%
Re)elli!n v. Pe!$le, 123 SCRA 343.
13
The evidence necessary to establish the e<istence of probable
cause does not re5uire 3actual or positive6 proofs, nor does it signifes
absolute certainty. %t is based on reasonable belief supported by facts
and circumstances suBciently strong to generate such belief in good
faith that the person to be arrested is li#ely the culprit who committed
the crime.
1/
Jhat court may issue a warrant of arrestK 7escribe brieNy the
procedure.
?pon receiving the case for disposition the court determines
whether the accused has been arrested or still at!large. %f the accused
has been arrested and under custody, the judge merely issues an order
of commitment.
%f the accused is still at!large, the judge ma#es a personal review
and evaluation of the resolution of the prosecutor who conducted the
preliminary investigation and the evidence submitted to him during
such investigation, to determine if probable cause e<ists to justify the
issuance of a warrant of arrest.
%n his personal review and evaluation of the resolution and
evidence submitted by the investigating prosecutor, it is not re5uired
that the judge should call and ta#e the testimonies of the complainant
and his witnesses, and personally e<amine them. The constitutional
mandate of the judge@s personal determination of the e<istence of
probable cause simply means that it is his e<clusive and personal
responsibility to satisfy himself of the e<istence of probable cause for
the (SIR ITIN PO)
%f after his personal review and evaluation of the resolution of the
investigating prosecutor and the evidence submitted to him during the
preliminary investigation, the judge is satisfed that probable cause
e<ists to justify the issuance of a warrant of arrest, he should issues an
=rder directing the issuance of such warrant.
12

"s long as the constitutional mandate is complied with, that is, the
warrant of arrest is issued upon a fnding of probable cause personally
determined by the judge after his personal e<amination and evaluation
of the resolution and evidence submitted by the prosecutor, there is
%8
Pila$il v. San0igan)an*an, 221 SCRA 34&' Alla0! v. Di!9n!, 232 SCRA 1&3
%&
S!liven v. 2a9a#ia,, 11% SCRA 3&3' Pe!$le v. O0ila!, ;.R. 5!. 155451, A$,. 14, 2004
14
nothing irregular if the judge issues the warrant of arrest on the same
day the complaint is fled.
/0

Gay the oBcer e<ecuting a warrant of arrest use force to e;ect
the arrestK
Ies. The Rule does not prohibit the use of force. Jhat it
proscribes is the use of violence and unnecessary force. The -
nd
sentence of the ,
rd
paragraph of section - authori)es the arresting
oBcer to employ greater restraint as may be necessary to overcome the
resistance of the person to be arrested, if he resists the arrest.
The police oBcer, in the performance of his duty must stand his
ground and must not ta#e refuge in Night. Ais duty is to use such force
as may be necessary to overcome the actual resistance of the arrestee
to frustrate his arrest.
/*
uppose a person is lawfully arrested, but instead of going with
the arresting oBcers the arrestee laid down on the street and refused to
stand up and wal# to the police vehicle. o the arresting policemen
bodily carried the arrestee and threw him into their vehicle as a
conse5uence of which the arrestee sustained some physical injuries.
The arrestee denounced the police oBcers of police brutality and of
using e<cessive force and violence in e;ecting his arrest. %s the
complaint of the arrestee, who has been charged with some criminal
o;ense, tenableK
The force used by the arresting police oBcers was reasonable and
necessary. Jhat the Rule prohibits is the use of unnecessary force and
violence to e;ect an arrest. The Rule does not bar the use of reasonable
and necessary force to overcome the resistance put up by the arrestee
to frustrate his arrest. Jhat is reasonable and necessary force depends
on the attending circumstances. The arresting oBcers were certainly
justifed in employing greater force to overcome the resistance of the
arrestee. The act of the arrestee in this case, of lying on the street is
obviously designed to frustrate his arrest by the police oBcers. uch is a
form of resistance which the oBcers have authority to overcome to
carry out their duties.
80
Ri)a*a v. Bina4i,a8Pa,ia, 451 SCRA 10%
81
U.S. v. 2!Fia, 42 Phil. %84
15
Section 3. Duty of arrestin& o!cer. - It shall %e the "uty
of the o;!er e+e!ut#n. the $arrant to arrest the a!!use" an"
"el#&er h#m to the nearest 'ol#!e stat#on or ,a#l $#thout
unne!essary "elay2
Section 4. 0;ecution of .arrant. - The hea" of the o;!e
to $hom the $arrant of arrest $as "el#&ere" for e+e!ut#on shall
!ause the $arrant to %e e+e!ute" $#th#n ten (78) "ays from #ts
re!e#'t2 <#th#n ten (78) "ays after the e+'#rat#on of the 'er#o"/
the o;!er to $hom #t $as ass#.ne" for e+e!ut#on shall ma6e a
re'ort to the ,u".e $ho #ssue" the $arrant2 In !ase of h#s
fa#lure to e+e!ute the $arrant/ he shall state the reasons
therefor2
C O M M E N T S
The arrest warrant, following its issuance, is delivered to the head
oBce of the local police oBce for e<ecution. The oBce head in turn
assigns the warrant to one of the men under his command to e;ect the
actual apprehension of the subject. %t is the duty of the assigned police
oBcer to e<ecute the warrant and arrest the accused within ten '*0(
from receipt and deliver him to the nearest police station or jail without
unnecessary delay, and report to the court the successful e<ecution of
the warrant and the arrest of the subject thereof. The issuing court shall
then issue the corresponding order of commitment, directing the
confnement and detention of the accused in jail until further orders
from the court.
%f the accused is not arrested within ten '*0( days from receipt of
the warrant of arrest, the oBcer assigned to e<ecute the warrant shall
render a report within ten '*0( after the e<piration of the original period
stating the reason why the accused was not or could not be arrested.
The warrant of arrest does not become stale or functus ofcio by
reason of its non!e<ecution. %t remains valid until arrest is e;ected or
else lifted.
/-
"n arrest may be made on any day and at any time of the day or
night. %t may be e<ecuted anywhere the subject thereof may be found
in the Philippines.
82
2anagan v. CF/, 18& SCRA 21%' 6e,,e,a, Re4e0ial Law, 7!l /7, 200% "0., $$. 3%4
11
Aow is a warrant of arrest e<ecutedK
Jhen ma#ing an arrest by virtue of a warrant, the arresting oBcer
shall inform the person to be arrest+ '*( that the oBcer is arresting
him9 '-( the cause of his arrest9 ',( the fact that a warrant of arrest has
been issued for his arrest. 'ection 1, Rule *,.(
Jhen may such advice be dispensed withK
uch advice may be dispensed with if the person to be arrested
Nees or forcibly resists before the oBce has the opportunity to inform
him, or when the giving of such information will imperil the arrest.
'%bid.(
%s it necessary that the oBcer ma#ing the arrest be in possession
of the warrant at the time the arrest is madeK
4o. The oBcer need not have the warrant in his possession at the
time of the arrest. Cut after the arrest, if the arrested person so
re5uires, the warrant of shall be shown to him as soon as practicable.
'%bid.(
Section 5. Arrest $#thout $arrantA $hen la$ful2 4 A 'ea!e
o;!er or a 'r#&ate 'erson may/ $#thout a $arrant/ arrest a
'erson3
(a) <hen #n h#s 'resen!e/ the 'erson to %e arreste" has
!omm#tte"/ #s a!tually !omm#tt#n./ or #s attem't#n. to !omm#t
an o0enseA
(%) <hen an o0ense has ,ust %een !omm#tte" an" he has
'ro%a%le !ause to %el#e&e %ase" on 'ersonal 6no$le".e of fa!ts
or !#r!umstan!es that the 'ersons to %e arreste" has !omm#tte"
#tA an"
1%
(!) <hen the 'erson to %e arreste" #s a 'r#soner $ho has
es!a'e" from a 'enal esta%l#shment or 'la!e $here he #s
ser&#n. :nal ,u".ment or #s tem'orar#ly !on:ne" $h#le h#s !ase
#s 'en"#n./ or has es!a'e" $h#le %e#n. transferre" from one
!on:nement to another2
Section )3. ,rrest after escape or rescue. " If a 'erson
la$fully arreste" es!a'es or #s res!ue"/ any 'erson may
#mme"#ately 'ursue or reta6e h#m $#thout a $arrant at any t#me
an" #n any 'la!e $#th#n the Ph#l#''#nes2 'ee also the -
nd
par. of
ec. -,, Rule **.
C O M M E N T S
The common element of warrantless arrest under paragraphs 'a(
and 'b( of ection & is the PFR=4"L L4=JLF78F of the arresting
oBcer and the facts and circumstances surrounding it, which point to
the accused as the person who committed the o;ense. uch personal
#nowledge may be ac5uired by the use of the oBcer@s senses of %8AT,
GFLL, AF"R%48, T"TF andHor T=?CA, which fortify his honest and in
good faith belief that probable cause e<ists to ma#e an arrest without
warrant.
Jarrantless arrest in fagrante delicto D "rrests under ection &'a(
re5uires that the person to be arrest must e<ecute overt acts in the
presence of the arresting oBcer or person indicating+ '*( that he has
committed an o;ense9 or '-( he is actually committing an o;ense9 or
',( he is attempting to commit an o;ense.
Jhat do you understand by 3an overt act6K
"n overt act signifes some physical activity or deed indicating the
commission or intention to commit a particular crime. The overt act
must have a direct connection with the crime committed, or is being
committed, or intended to be committed.
/,
Jhen may an overt act be deemed to have been committed in the
presence of the arresting oBcer or individualK
83
L.B. Re*e#, (he Revi#e0 Penal C!0e, B!!9 1, 2001 "0., $$. &5
18
The overt act is considered to have ta#en place in the presence of
the arresting oBcer or individual when it was done within the range of
his senses of sight, smell, hearing, taste or touch, and in such close
pro<imity that he could not possibly be mista#en in his perception of the
criminal activity as well as the identity of the o;ender. The perception
of the physical activity must precede the arrest.
Jhen may an overt act be deemed an attempt to commit a
crimeK
There is an attempt when the o;ender commences the
commission of a felony directly by easily seen acts of e<ecution which
should produce the felony but did not by reason of some cause or
accident other than his own spontaneous desistance.
/.
uppose a police oBcer on beat patrol saw a man opened the
door of a car par#ed along a street gutter, too# out a laptop computer,
and wal#ed away. econds later the owner of the vehicle discovered his
laptop was missing and reported the matter to the police oBcer, who
ran after the man who too# the computer. Jhen he overtoo# the thief
the peace oBcer arrested him while he was still holding the stolen
laptop. Jas the warrantless arrest of the thief legal under the provision
of ection &'a( of Rule **,K
4o. "n o;ense is deemed committed in the presence of an
oBcer, within
the purview of ection &'a( of Rule **,, to justify a warrantless arrest,
when the arresting oBcer, not only saw the commission of the o;ense,
but must #now that the overt acts constitute criminal acts. Lnowledge
of the commission of the crime in one@s presence must precede the
arrest. The arrest cannot be justifed by the discovery thereafter that
the person to be arrested committed the o;ense.

84
A,-. 1, $a,. 3, Rev. Penal C!0e

1&
%s suspicion based on reliable information provided by a police
asset suBcient to e;ect a warrantless arrestK
"lone and by itself mere 3reliable information6 provided by a
police tipster is not suBcient to provide probable cause to justify an
arrest without warrant. uch information does not rise above the level
of suspicion, which alone and by itself will not provide probable cause.

Jhen may suspicion provide probable cause to support an arrest
without warrantK
%n the case of People v. "yangao
/&
the upreme Court held that to
constitute probable cause to support an arrest without warrant,
suspicion must be supported by circumstances suBciently strong in
themselves to warrant a cautious man to believe that the person to be
arrested is guilty of the o;ense charged. The determination of probable
cause must be resolved according to the facts of the case.
/:
Goreover,
suspicion must be founded on good faith.
The case of People v. "minudin
/1
is worthy of study. The
warrantless arrest of "minudin on the basis of a police tipster@s
information did not, according to the upreme Court, provide the
arresting oBcers probable cause to arrest him without warrant because
the police #new three days earlier the identity of the person to be
arrested, the time and place of his arrival, and the vessel he was on
board, as well as the contraband in his possession. They, therefore,
have suBcient time and opportunity to procure a warrant of arrest from
the court.
The case of "minudin, however, should be distinguish from the
subse5uent case of People v. Tangliben,
//
where the upreme Court
held lawful the warrantless arrest of the accused based on suspicion.
The arresting oBcers here were confronted by an urgency and absence
of opportunity to procure from the court a warrant of arrest.
To recapitulate, warrantless arrest based on suspicion alone or on
information provided by tipsters is invalid. To be lawful such warrantless
arrest based on suspicion re5uires the following re5uisites+ '*( the
suspicion must be coupled with circumstances suBciently strong in
85
;. R. 5!. 142351, A$,. 14, 2004
81
Re)elli!n v. Pe!$le, #+$,a.
8%
113 SCRA 408
88
184 SCRA 220
%0
themselves to warrant a cautious man@s belief that the person to be
arrested committed the o;ense with which he is charge9 '-( the
arresting oBcer must be confronted by an urgency which denied him
the opportunity to procure a warrant of arrest from the court9 and ',(
the arresting oBcer must act in good faith.
Jhat is the nature of the arrest in the police operation #nown as
3buy bust operation6K
%t is considered as arrest in fagrante delicto, because in buy bust
operation, employed in illegal sale of dangerous drugs, the violator is
caught red handed selling prohibited drugs without authority of law.
The operation is designed, and accepted, as a form of entrapment to
capture lawbrea#ers.
,rrest in <ot +ursuit.- This type of arrest without warrant
operates where an o;ense has just been committed, not in the
presence of the oBcer, but because of the e<istence of facts and
circumstances personally perceived by the oBcer pointing the accused
as the culprit. The principal focus is centered on a very recently
committed o;ense and the e<istence of facts and circumstances
personally #nown to the arresting oBcer which give him probable cause
to believe that the person to be arrested is the one who committed it.
Jhat is the essence of 3probable cause6 in warrantless arrest in
hot pursuitK
Probable cause in arrest without warrant in hot pursuit is
determined by the practical consideration of the facts and
circumstances of every day life on which a reasonable and prudent man
acts9 where facts and circumstances are within the #nowledge of the
arresting oBcer and of which he has reasonable and trust worthy
information to justify a man of reasonable prudence and caution in the
belief that the person to be arrested is the culprit who just committed
the o;ense.


Jhat are the re5uisites of arrest in hot pursuitK
%1
*. That a crime has just been committed9
-. That the police oBcer has no personal #nowledge of the
identity of the person who perpetrated the crime, that is, the crime was
not committed in his presence9
,. That the police oBcer ac5uired personal #nowledge of facts and
circumstances by his senses of sight, hearing, smell, taste or touch,
pointing to the accused as the o;ender
The frst re5uisite of hot pursuit arrest. !%n People v. Golleda,
/2
the
upreme
Court held that the legality of an arrest without warrant does not
depend upon the actual commission of the crime, but upon the nature of
the deed when such characteri)ation may reasonably be inferred by the
arresting oBcer at the moment which re5uires him to ma#e an urgent
decision of suspending the liberty of a citi)en. 'ee the boo# of >ustice
Aerrera, Remedial Law, $ol. %$, -001 Fd., page .*2.(
Jith due respect, if the warrantless arrest in hot pursuit does not
depend upon the actual commission of the crime, such arrest would be
illegal because one of the basic re5uisites of this type of arrest D that an
o;ense has just been committed D is absent.
%f from the attending facts and circumstances personally #nown to
the arresting oBcer he can conclude that the person to be arrest
committed the crime such is enough for him to e;ect an arrest without
warrant.
The second re5uisite of arrest in hot pursuit. ! The o;ense was not
committed in the presence of the arresting oBcer. =therwise,
paragraph 'a( of ection & would apply. Jhat the arresting oBcer
should have personal #nowledge of refers to facts and circumstances,
which he personally perceive through his senses of sight, hearing, smell,
taste or touch, pointing to the accused as the person who committed
the crime.
The phrase 3just been committed6 has received various
interpretations. Eor instance >ustice Teehan#ee, cited by Chief >ustice
7avide in the case of ?mil v. Ramos
20
posited that the phrase means
8&
81 SCRA 11%
&0
202 SCRA 251
%2
very short time ago. The time interval between the actual commission
of the crime and the arrival of the arresting oBcer must be brief.
2*

%n the case of Fspiritu v. Lim
2-
, the arrest of the accused one day
after the crime was committed was held valid. %n People v. 4a)areno
2,
where arrest was made *. days after the commission of the crime, was
also held valid.
Aowever, in Rolito 8o v. Court of "ppeals
2.
where arrest was made
si< days after the commission of the crime which was reported by an
eyewitness, was held unlawful. %n People v. Gonda
2&
the arrest without
warrant was made three days after the crime was committed and in
People v. Ganlulu
2:
the warrantless arrest was e;ected nineteen hours
after the crime as committed. %n both cases the arrests were held
unlawful.
Jith due respect, we submit that the adverb 3just6 in the phrase
3just been committed6 suggests a brief time ago, very recently,
immediately in point of time.
21
The third re5uisite of arrest in hot pursuit. D The arresting oBcer
must have no personal #nowledge of who perpetrated the o;ense, and
learned of the commission of the o;ense only when he arrived at the
scene of the crime. =therwise, the warrantless arrest would come
within the purview of paragraph 'a( of ection &.
The personal #nowledge of the arresting oBcer must refer to facts
and circumstances pointing to the person to be arrested as the probable
o;ender. %n other words, the personal #nowledge of the arresting oBcer
must be generated by his perception of facts and circumstances which
would warrant a man of reasonable caution and prudence to believe
that a crime has just been committed by the suspect.
Jhen may suspicion be a valid basis for arrest without warrantK
&1
6e,,e,a, !$ i-., $$. 41&
&2
Ci-e0 in 6e,,a,e, !$ i-., $$. 420
&3
/)i0.
&4
201 SCRA 138
&5
228 SCRA 115
&1
231 SCRA %01
&%
Ge)#-e,:# C!llegia-e Di-i!na,*' R!ge-:# Sh!!l > O..ie (he#a+,+#
%3
To be a basis for arrest without warrant suspicion must be
reasonable, that is, based on facts and circumstances suBciently strong
in themselves to create probable cause to believe that the person to be
arrested committed the o;ense. otherwise stated, a reasonable
suspicion must be founded on probable cause, coupled with good faith
on the part of the peace oBcer ma#ing the arrest.
2/
tate the rule for arrest of escapees.
There are two types of escapees+ a prisoner or an arrestee.
Jhen a prisoner, whether serving fnal judgment or temporarily
detained because of his pending case, escapes from his confnement in
a penal establishment, or while he is being transferred from his place of
confnement to another, escapes, he can be arrested without warrant at
any time and any where he may be found in the Philippines. To be a
prisoner, the person@s confnement in a penal institution must be on
account of a fnal judgment or an order of commitment issued by a
judge.
The other type of escapee contemplates of a person who has been
lawfully arrested, and while he is being conveyed by the arresting oBcer
to his station or nearest jail, he escaped or was rescued from the
custody of the oBcer. The detention of such person must be by virtue
of a lawful arrest. Ae can also be re!arrested without warrant at any
time and anywhere in the Philippines.
Aow is a warrantless arrest may be carried out by a peace oBcerK
Jhen ma#ing an arrest without warrant, the arresting peace
oBcer shall inform the person to be arrested of his authority and the
cause of his arrest, unless the latter is either engaged in the commission
of an o;ense or pursued immediately after its commission, or has
escaped, Nees or forcibly resists before the oBcer has opportunity to
inform him or when giving such information will imperil the arrest.
'ection /, Rule **,.(
Aow does an arrest without warrant by a private person carried
outK
&8
U4il v. Ra4!#, 202 SCRA 251
%4
Jhen ma#ing an arrest a private person shall inform the person to
be arrested of the former@s intention to arrest the latter and the cause of
the arrest. 'ection 2, Rule **,.(
" private individual has a common law right to ma#e an arrest .
Aowever not being vested with government authority, such private
persons can arrest a person who commits a crime in his presence or
where he has reasonable cause to believe that a crime has just been
committed by the persons to be arrested.
Gay a private persons ma#ing a warrantless arrest use force to
e;ect the arrestK
Ies. Cut the force the private person ma#ing the arrest to
overcome the resistance of the person to be arrested must be
reasonably necessary.

Jhen is the announcement of arrest and its cause not necessaryK
*. Jhen the person to be arrest is engaged in the actual
commission, has just committed, or is attempting to commit an o;ense9
-. Jhen after the commission or attempt to commit an o;ense,
he Nees and is immediately pursued9
,. Jhen the person to be arrested forcibly resists before the
person ma#ing the arrest has the opportunity to inform him9
.. Jhen giving of such information will imperil the arrest.

Jhat may an oBcer e<ecuting an arrest do to assure the success
of the arrestK
*. Ae may summon assistance from private persons to e;ect the
arrest.
'ection *0, Rule **,.(
%5
-. Ae may brea# into the building or enclosure where the person
to be arrested is reasonably believed to be present, if he is refused
admittance after announcing his authority.

Rule 79G 5 Sear!h an" Se#=ure
%n view of the close relation of Rule *-: with Rule **, on arrest,
we shall ta#e up this Rule immediately after the Rule on arrest and
ahead of the other Rules.
The unreasonable search and sei)ure proscribed in "rticle %%%,
ection - of the *2/1 Constitution, has been supplemented by ection .
of Rule *-: of the Revised Rules on Criminal Procedure. "s framed,
ection . of this Rule provides, 3" search warrant shall not issue e<cept
upon probable cause in connection with one o;ense to be determined
personally by the judge after e<amination under oath or aBrmation of
the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be sei)ed which
may be anywhere in the Philippines.6
"ny evidence procured in violation of the constitutional
proscription and the provision of ection . of Rule *-: is inadmissible in
evidence for any purpose and in any proceeding.
22
uch evidence is
regarded as the fruit of a poisonous tree. "n illegal search and sei)ure
taints the incriminatory evidence procured thereby, just as a poisonous
tree will yield poisonous fruits.
Jhat is a search warrantK
&&
Se. 3DaE, A,-. ///, l&8% C!n#-i-+-i!n
%1

" search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace
oBcer commanding him to search for the personal property described
therein and bring it before the court. 'ection *, Rule l-:.(
%t is a writ in writing, duly issued by a judicial authority and
directed to a peace oBcer to search and bring it before the court name
in the search warrant for proper disposition.
*00

" search warrant is a legal process employed by the tate to
procure relevant evidence of crime D it is in the nature of a criminal
process, restricted to cases of public prosecutions and not a process for
adjudicating civil rights or maintaining mere private rights.
*0*

Jhat is the principal function of a search warrantK
The basic function of a search warrant is to authori)e the search
and sei)ure of that which could not be legally done without its issuance.
The only legal means which can be employed to search the premises of
a private individual is by the process of a search warrant. 4either a
private individual nor an oBcer of the law may disturb the privacy of a
home and subject its occupant to a search for evidence of a crime
without a legal warrant for that purpose.
" search and conse5uent sei)ure must be carried out with a
judicial warrant, otherwise, it becomes unreasonable and any evidence
obtained therefrom is inadmissible for any purpose in any proceeding.
Jhat constitutes a reasonable or unreasonable search and sei)ure is
purely a judicial 5uestion, determinable from the uni5ueness of the
circumstances involved, including the purpose of the search or sei)ure,
the presence or absence of probable cause, the manner in which the
search and sei)ure was made, the place searched and the thing sei)ed,
and the character of the articles procured.
*0-

Jhat is the scope of the authority of a search warrantK
100
2el-!n v. Fl!,i0a,%5 S!. 20. 2&1
101
Uni-e0 La)!,a-!,ie#, /n v. /#i$, 411 SCRA 5%4' Ching v. Salina#, S,., 412 SCRA 241
102
Pe!$le v. Rah!, 121 SCRA 133
%%
The reach of a search warrant is not limited to natural persons or
their private dwelling but e<tends to juridical persons and their places of
business as well, on the theory that certain businesses are a;ected with
public interest. The personal property may be ta#en under the authority
of a properly issued search warrant from any house or other places or
from individuals whose possession of the personal property is illegal.
Section 2. Court $here a''l#!at#on for sear!h $arrant
shall %e :le"2 5 An a''l#!at#on for sear!h $arrant shall %e :le"
$#th the follo$#n.3
(a) Any !ourt $#th#n $hose terr#tor#al ,ur#s"#!t#on a !r#me
$as !omm#tte"A
(%) )or !om'ell#n. reasons state" #n the a''l#!at#on/ any
!ourt $#th#n the ,u"#!#al re.#on $here the !r#me $as !omm#tte"
#f the 'la!e of the !omm#ss#on of the !r#me #s 6no$n/ or any
!ourt $#th#n the ,u"#!#al re.#on $here the $arrant shall %e
enfor!e"2
-o$e&er/ #f the !r#m#nal a!t#on has alrea"y %een :le"/ the
a''l#!at#on shall only %e ma"e #n the !ourt $here the !r#m#nal
a!t#on #s 'en"#n.2
C O M M E N T S
" court whose territory does not embrace the place to be search
may issue a search warrant where the application is necessitated and
justifed by compelling considerations of urgency, subject, time and
place.
3?rgency6 means pressing, calling for immediate attention. The
court must ta#e into consideration, not only the subject but also the
time and place of the enforcement of the search warrant. The
determination of the e<istence of these compelling considerations is
addressed to the sound discretion of the trial court where the
application was fled, subject to review by the appellate courts in case of
grave abuse.
*0,

103
Pe!$le v. Chi+, e- al., ;.R. 5!#. 142&15 H 11, Fe). 2%, 2004
%8
The search warrant may be enforced anywhere in the Philippines
as may be inferred from the words of ection ., which states inter alia
3the place to be searched and the things to be sei)ed which may be
anywhere in the Philippines.6
Section 3. +ersonal property to -e sei=ed. - A sear!h
$arrant may %e #ssue" for the sear!h an" se#=ure of 'ersonal
'ro'erty3
(a) Su%,e!t of the o0enseA
(%) Stolen or em%e==le" an" other 'ro!ee"s/ or fru#ts of
the o0enseA or
(!) Use" or #nten"e" to %e use" as the means of
!omm#tt#n. an o0ense2
C O M M E N T S
=nly personal properties may the subject of search and sei)ure
under a search warrant.
The Rule indicates that personal property may be ta#en under the
authority of a properly issued search warrant from any house or other
place in which it is concealed, or from the possession of any person by
whom it was stolen or embe))led, or from the individual in whose
possession it may be where it was used or intended to be used to
commit any o;ense, or where possession of such personal property is
illegal per se.
=wnership of the personal property subject of the search warrant
has no relevance to the validity of the sei)ure, if they fall under any of
the categories listed in ection , of Rule *-:. The Rules do not re5uire
that the property to be sei)ed should be owned by the person against
whom the search warrant is directed. %t is suBcient that he has control
of the property sought to be sei)ed at the time of the search and
sei)ure.
Section 4. 9e3uisites for issuin& search .arrant. - A
sear!h $arrant shall not #ssue e+!e't u'on 'ro%a%le !ause #n
!onne!t#on $#th one s'e!#:! o0ense to %e "eterm#ne"
'ersonally %y the ,u".e after e+am#nat#on un"er oath or
a;rmat#on of the !om'la#nant an" the $#tnesses he may
%&
'ro"u!e/ an" 'art#!ularly "es!r#%#n. the 'la!e to %e sear!he"
an" the th#n.s to %e se#=e" $h#!h may %e any$here #n the
Ph#l#''#nes2
C O M M E N T S
Re5uisites of a search warrant9
*. F<istence of probable cause. D " core re5uisite before a search
warrant may be validly issued is the e<istence of a probable cause,
meaning 3the e<istence of such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an o;ense
has been committed and that the objects sought in connection with the
o;ense are probably in the place to be searched.
*0.

-. The probable cause must be connected with the commission of
one specifc o;ense9
,. The judge must personally determine the e<istence of probable
cause, connected with the specifc o;ense9
.. Ais determination of probable cause must be after e<amination
under oath or aBrmation, in writing and by means of searching
5uestions and answers of the complainant and the witnesses he may
produce9
&. The search warrant must particularly describe the place to be
search and the persons or things to be sei)ed9
*0&

:. The sworn statements of the complainant and the witnesses
he may produce must be based on their personal #nowledge, as mere
aBrmation of opinion or suspicion is not enough, and such statements
must be attached to the records of the proceeding.
*0:
". Jhen does probable cause e<ist to justify issuance of a search
warrantK
"s stated earlier, the core re5uisite before a search warrant may
issue is the e<istence of probable cause, meaning 3the e<istence of such
104
S!n* 2+#i "n-e,-ain4en- DPhil.E, /n. v. "#$an!l, 453 SCRA 310
105
(an v. S* (i!ng ;+e, 113 SCRA &8' Pe!$le v. (+an, 128 SCRA 221' Pe!$le v. 2a4a,il,
132 SCRA 31&
101
P,+0en-e v. Da*,i-, 180 SCRA 1&
80
facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an o;ense has been committed and that
the things and objects sought in connection with such o;ense are
probably in the place to be searched.
*01


Jhat must be the basis in determining the e<istence of probable
causeK
Probable cause must be demonstrated to be with the personal
#nowledge of the complainant and the witness he may produce, and not
merely based on hearsay or suspicion.
%n "lvare) v. CE%
*0/
, the upreme Court told us that in determining
the suBciency of the statements of the complainant and his witnesses
to justify the issuance of a search warrant based on personal
#nowledge, the test is whether the supporting sworn statements have
been drawn in a manner that perjury could be charged thereon and the
declarants could be held for damages caused. The statements must
refer to the truth of the facts within the personal #nowledge of the
applicant for search warrant and his witnesses, not of facts merely
reported to them by another person, even if they consider him reliable.
There is no f<ed formula for determining the e<istence of
probable cause9 each case must be decided upon its own facts and
circumstances. Probable cause is a Ne<ible, common sense standard,
which simply re5uires that the facts and circumstances available would
warrant a man of reasonable caution and belief that certain items may
be contrabands or stolen property or useful evidence to establish the
commission of an o;ense, are all that are re5uired.
C. Jhat does the second re5uisite D that the probable cause must
be connected with one specifc o;ense D mean.
%n his determination of the e<istence of probable cause, the judge
must necessarily resolve whether or not any of the o;enses listed in
ection , of Rule *-: has been committed to justify his issuance of a
search warrant.
*02
The custody and #eeping of the personal properties
should be related with any of the o;enses covered by the enumeration
in ection , of Rule *-:, not just any personal property.
10%
S!n* 2+#i "n-e,-ain4en- DPhil.E /n. v. "#$an!l, 453 SCRA 310
108
14 Phil. 33
10&
S!n* 2+#i, e-., O$ i-.
81
C. Jhat does the third re5uisite D personal determination by the
judge of the e<istence of probable cause in relation to the commission
of one specifc o;ense D signify.
?nli#e in the issuance of warrant of arrest where the judge may
confne his determination of probable cause with his review and
evaluation of the fndings of the investigating prosecutor, in issuing a
search warrant the judge must personally, himself, determine the
e<istence of probable cause, vi).!a!vi)., the commission of the o;ense,
by personally ta#ing the evidence of the applicant to substantiate the
allegations in the application for search warrant.
The reason is obvious. %n arrest warrant, there was a previous
initial investigation conducted by the investigating prosecutor to
determine the commission of an o;ense and the probability that the
accused is the o;ender. %n the issuance of a search warrant there is no
such previous determination of probable cause. The judge must have to
ma#e a personal in5uiry regarding the e<istence of probable cause to
justify him to issue the search warrant applied for.
7. The fourth re5uisite+ F<amination of the complainant and his
witnesses personally by the judge by means of searching 5uestions and
answers.
The constitutional mandate is that before issuing a search warrant
the judge must determine personally the e<istence of probable cause by
e<amining under oath or aBrmation, by means of searching 5uestions
and answers the complainant and the witnesses he may produce.
Thus, in determining the e<istence of probable cause+ '*( the
judge must e<amine personally the complainant and the witnesses he
may produce D this duty cannot be delegated9
**0
'-( the e<amination
must be made under oath or aBrmation9 and ',( the e<amination must
be reduced in writing in the form of searching 5uestions and answers.
***
The e<amination must be probing and e<haustive, not merely
routine and perfunctory. The underlying purpose is that search warrant
should not be issued lightly but must rigidly observe the constitutional
and procedural re5uirements to protect the privacy of the individual.
110
Bahe > C!. v. R+i3, 3% SCRA 823
111
P!n#ia v. /gnalaga, 52 SCRA 14%
82
F. The ffth re5uisite+ pecifc description of the place to be
searched and the person or thing to be sei)ed.
The Constitution and the Rules of Court are clear that the place to
be searched and the person or things to sei)ed must be clearly
described and specifed in the search warrant. %t is imperative to the
validity of every search warrant that such description re5uirement must
be faithfully observed. The reason for this re5uirement is to preserve
the 5uiet enjoyment of the individual of his home and business. The
oBcer e<ecuting a search warrant should not be permitted to e<ercise
discretion or e<ceed the limits of his authority under the warrant. Ais
duty is to unerringly follow the directive contained in the search
warrant, search only the e<act place described in the warrant, and see#
out the property specifcally listed therein. "ny departure from these
commands may render its e<ecution fatal.
**-

Jhat is the reason for the re5uirement of particular description of
the place to be search and the property to be sei)edK
The necessity of precise description re5uired in search warrant
stems from the prohibition of general warrant, prevalent in the *1
th
century Fngland when general warrants were authori)ed to be issued by
the tar Chamber Courts in an e;ort to suppress political dissent against
the Crown. Those general warrants allowed a general arrest and sei)ure
of anyone and anything. 4o person was named in the warrant, no place
was designated to be searched, no description was made of the
properties which may be sei)ed.
**,

The Constitution and our Remedial Law proscribes general
warrants and prohibits sei)ures of properties not specifcally described
in the warrant or describes other place or article. %n this fashion the
function of an e<ecuting oBcer is made simply administrative and what
may be searched and sei)ed is not a matter within the discretion of the
oBcer.
To recapitulate, the re5uirement of particular description of the
place to be searched and the things to be sei)ed is designed+ '*( to
maintain the peaceful enjoyment of home and oBce9 '-( to eliminate
the possibility of the e<ecuting oBcer to guess and e<ercise discretion
as to what place or premises he may enter9 and ',( to limit the things
which he may sei)ed, that is, to prevent the e<ecuting oBcer to ma#e a
112
7a,!n, Sea,he#, Sei3+,e# an0 /44+ni-ie#, 7!l. 1, 2
n0
"0., $$. 44%, 4508451
113
/)i0. $$. 44%
83
roving sei)ure. Ae is bound to adhere strictly to these commands of the
warrant.
Jhat is the objective of the re5uirement that the search warrant
must issue for only specifc o;enseK
This re5uirement is designed to enable the judge issuing the
warrant to determine the e<istence of probable cause and what
personal property should be searched and sei)ed.
**.
Aow is a search warrant implemented or enforced D the
procedureK
*. %f the judge before whom an application for search warrant is
fled, should be satisfed with e<istence of facts upon which issuance of
such warrant is based. %n other words, that there is probable cause to
believe that such facts e<ist. Ae shall issue the search warrant applied
for substantially in the form prescribed by the Rules. 'ection :, Rule
*-:.(
-. The police oBcers implementing a search warrant must
announce their presence to the person in charge of the place or
premises to be searched9 identify themselves and their purpose9
produce the search warrant to be implemented9 e<plain to the person
found in the place or premises of the import of the warrant in a
language or dialect #nown and understood by him9 and demand that he
be allowed entry, before the oBcers begin the search.
-.*. Aowever these procedural formalities may be dispensed with
where+
-.*.a. The police oBcers are denied entry9
-.*.b. The person in charge of the premises already #now the
identity of the oBcers, their authority and their purpose9
-.*.c. The oBcers are justifed in their honest and good faith
belief that there is imminent peril in their lives and limb9
-.*.d. Jhen those inside the premises, aware of the presence of
the oBcers outside, are engaged in some activities which justify the
114
Regala0!, Re4e0ial Law C!4$en0i+4,7!l. //, 10
-h
"0.., $$. 1448145
84
oBcers to believe that an escape or destruction of evidence is being
attempted.
,. %f the oBcers implementing the search warrant are refused
admittance after compliance with the procedural formalities, they may
brea# open any door or inner door or window of the house or any part of
the house or anything therein to e<ecute the warrant or to liberate
himself or any person lawfully aiding him, when they are unlawfully
detained or trapped. 'ection 1, Rule *-:.(
.. The oBcers must conduct their search of the house, room or
any other premises in the presence of the lawful occupant or any
member of his family. %n their absence, the search must be conducted
in the presence of two witnesses of suBcient age and discretion residing
in the same locality. 'ection /, Rule *-:.(
..*. "lthough not re5uired by any law or rules of court, the better
practice is to conduct the search in the presence either of two barangay
oBcials of the locality or members of the media for the protection and
security of the searching oBcers against false or malicious charges later
on.
&. The search warrant should direct that it be served at day time.
Cut if the aBdavit asserts that the property is on the person or place
which can be searched only at nighttime, a directive may be inserted
that the warrant be served at any time of the day or night.
:. " search warrant shall be valid only for ten '*0( days from its
date. Thereafter it shall be void.
:.*. uppose the implementing oBcers used the same warrant
from day to day, but for a period not e<ceeding ten days from its date,
for the same purpose stated in the warrant, may the evidence procured
on di;erent dates, but not beyond the ten!day period prescribed for its
validity, be admissible in evidenceK

" search warrant cannot be used from day to day even though the
period of its use is within the ten!day period. "fter the articles for which
the warrant was issued have been sei)ed the warrant becomes void and
cannot be used anymore as authority to ma#e another search and
sei)ure, although the articles to be sei)e on the following day or third
day, and so on, are of the same class and nature as those sei)ed on the
frst day, because the second, third and so on bunch are no longer
covered by the search warrant.
85
The second search using the same search warrant, after it has
been e<ecuted and the e<ecuting oBcers have completed their frst
search, the succeeding searches under the same warrant are no longer
valid. =nce a search warrant has been e<ecuted by the oBcers, a
second and further searches on succeeding days using the same search
warrant cannot be conducted any more, since the warrant has become
functus ofcio. %nstead, the oBcers should procure another search
warrant.
1. "fter the search has been concluded, the oBcers sei)ing the
property under the warrant, including those legally sei)ed without a
warrant, must give detail inventory and receipt for all the properties
sei)ed, to the lawful occupant of the premises in whose presence the
search and sei)ure were made, or in the absence of such occupant, to at
least two witnesses of suBcient age and discretion residing in the same
locality, and leave the receipt in the place they found the sei)ed
property. 'ection **, Rule *-:.(
1.*. Gay the police oBcers who made the search and sei)ure
re5uire the lawful occupant in whose presence such search and sei)ure
were made, sign the receipt made by the oBcers, ac#nowledging the
sei)ure of the property listed thereinK
4o, because such may amount to an e<tra!judicial admission of
the sei)ure from his possession of the illegal articles without the
presence and assistance of counsel. %t may also amount to a waiver of
his constitutional rights without the assistance of counsel.
/. The oBcers must forthwith deliver the property sei)ed to the
judge who issued the search warrant, together with a true inventory
thereof duly verifed under oath.
/.*. Ten '*0( days after the issuance of the search warrant, the
issuing judge shall ascertain if a return 'report( has been made, and if
none, shall summon the person to whom the warrant was issued and
re5uire him to e<plain why no return was made. %f a return has been
made, the judge shall ascertain whether the receipt re5uired under
ection ** of Rule *-: has been complied with and shall re5uire that the
property sei)ed be delivered to him. The judge shall also ascertain if
the re5uired verifed inventory under oath has been submitted.
/.-. The return on the search warrant shall be fled and #ept by
the custodian of the log boo# on search warrants, who shall enter
81
therein the date of the return, the result, and the other actions of the
judge. 'ection *-, Rule *-:.(
Gay a search warrant be 5uashedK AowK
Ies, a search warrant may be 5uashed. "fter a judge has issued a
search warrant, he is not precluded subse5uently to 5uash the same, if
he fnds upon reevaluation of the evidence that no evidence of probable
cause e<ists.
**&
The 5uashing shall be done as follows+
*. %f a criminal action has already been instituted, a motion to
5uash the search warrant and suppress the evidence obtained thereby
should be fled and acted upon only by the court where the action has
been instituted.
-. %f no criminal action has been instituted, the motion may be
fled and resolved by the court that issued the search warrant.

,. Aowever, if the court that issued the search warrant fails to
resolve the motion to 5uash and a criminal case is subse5uently fled in
another court, the motion shall be resolved by the latter court. 'ection
*., Rule *-:.(
ection *. of Rule *-: contemplates the following situations+
*. Jhere no criminal action has yet been instituted, the court that
issued the search warrant has the authority to resolve the motion to
5uash the warrant or suppress the evidence obtain under the warrant.
-. Jhere the motion to 5uash is fled with the court which issued
the search warrant but during the pendency of the motion and before
the issuing court could act thereon, a criminal case has been instituted
in another court, the latter has the authority to ta#e cogni)ance of the
motion. The motion may be consolidated with the criminal case.
,. Jhere after a criminal action has been fled and pending, a
subse5uent motion to 5uash is fled, only the court where the prior
criminal action has been instituted has the authority to act on the
motion.
**:


115
2anl* S$!,-wea, 2an+.a-+,ing, /n. v. Da0!--e "n-e,$,i#e#, 4%0 SCRA 384
111
5!la#! v. Pan!, 13& SCRA 152' Pe!$le v. Ban#, 23& SCRA 48
8%
Li#e arrest which could be made without warrant in well defned
situations, search and sei)ure may also be conducted without warrant.
%n what instances may search and sei)ure be made without warrantK
*. Sear!h #n!#"ental to la$ful arrest. ! " person lawfully
arrest may be search for dangerous weapons or anything which may
have been used or constitute proof in the commission of an o;ense
without a search warrant, 'ection *,, Rule *-:.(
Lawful arrest must precede the warrantless search which is only
incidental thereto. The re5uisites are+ '*( the arrest must be lawful9 '-(
the search is just an incident to such arrest9 ',( search incidental to the
lawful arrest is limited to search for dangerous weapon or for anything
which may be used as evidence of the commission of an o;ense9 and
'.( the scope of the warrantless search incidental to lawful arrest is
limited to the person and area within which the arrestee could reach for
a weapon or reach for evidence to destroy it.
Aowever, in People v. Gariacos,
**1
the upreme Court ruled that a
search substantially contemporaneous with an arrest can precede the
arrest if the police has probable cause to ma#e the arrest at the outset
of the search. 8iven that the search was valid, the suspect@s arrest
based on such search is also valid. Cut it is necessary that the oBcer
e<ecuting the arrest subse5uent to the search and sei)ure must have
been impelled to do so because of probable cause. The essential
re5uisite of probable cause must be satisfed before a warrantless
search and sei)ure can be lawfully conducted prior to arrest. Jithout
probable cause, the articles sei)ed prior to arrest cannot be admitted in
evidence against the person arrested.
Cut suppose the accused was unlawfully arrested and when he
was fris#ed and searched the arresting oBcers found concealed in his
pants@ poc#et a fan #nife and several sachet of suspected 3shabu6.
Jere the arresting oBcers justifed in charging the accused with
possession of deadly weapon and dangerous drugs, using the
confscated articles as evidence against the accusedK
%f an arrest is unlawful at the moment it was made, nothing that
happened or discovered afterwards will ma#e the unlawful arrest lawful.
The fact that the information gathered by the arresting peace oBcers
are accurate will not legali)e an unlawful arrest. "nd the fact that the
search and sei)ure incidental to such arrest brings out incriminating
11%
121 SCRA 3%
88
evidence will not ma#e such evidence admissible for any purpose in
any proceeding regardless of their conclusiveness in demonstrating
beyond reasonable doubt the guilt of the accused. uch evidence is
deemed a poisonous fruit yielded by a poisonous tree.
92 MSto' an" fr#s6N "o!tr#ne2 4 ?nder this doctrine a police
oBcer may stop and detain an individual, short of arresting him, based
upon peculiar or unusual behavior short of ade5uate ground for arrest,
may interrogate him, and when his response is unsatisfactory, the
oBcer may fris# him for deadly weapon. "nd if some illegal articles are
discovered in the possession of the person, the police oBcer has the
authority to arrest the person who was acting suspiciously.
This doctrine was frst applied in the case of Terry v. =hio
**/
, where
a Cleveland police oBcer on routine patrol observed Terry and a co!
defendant acting in unusual manner in front of a mercantile store, which
led the police oBcers to believe that these two men were on a 3casing
job6, preparatory to staging robbery. "lthough that was merely a
speculation on the part of the police oBcer, he feared that the men
were armed. o he approached them, identifed himself as a police
oBcer and in5uired as to their identities and their purpose in front of the
store. The suspects mumbled something in reply to the oBcer@s
in5uiries. Jhereupon, because he was not satisfed with the answers,
the oBcer patted the clothing of Terry and found a concealed gun. The
peace oBcer also discovered another gun in the possession of Terry6s
co!defendant. The police arrested Terry and his companion and charged
them with carrying concealed deadly weapons. "t the pre!trial stage,
the defense counsel moved to suppress the evidence, on the ground
that the constitutional right of the accused against unreasonable search
and sei)ure was violated, inasmuch as the search of the persons of the
defendants were based on mere suspicion and without probable cause.
The trial court denied the motion to suppress the evidence. =n appeal
by Terry, the ?.. upreme Court, spea#ing through Chief >ustice Jarren,
upheld the lower court and held+
3%t does not follow that because an oBcer may lawfully
arrest
a person only when he is apprised of facts suBcient to warrant a
belief that the person has committed or is committing a crime, the
oBcer is not justifed, absent of that #ind of evidence, in ma#ing
an
118
3&2 U.S. 1
8&
intrusion short of an arrest. Goreover, a perfectly reasonable
appre!
hension of danger may arise long before the oBcer is possessed
of
ade5uate information to justify ta#ing a person into custody for
the
purpose of prosecuting him for a crime.6
"fter the Terry case, many other cases followed where law
enforcers stopped and fris#ed persons but did not fnd concealed
weapon, but only narcotics and other contrabands, and based on mere
curiosity and suspicion of police oBcers. without probable cause.
The 3stop and fris# practice serves a dual purpose+ '*( the
general interest of e;ective crime prevention and detection, which
underlies the recognition that a police oBcer may, under appropriate
circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without
probable cause9 and '-( the more pressing interest of safety and self!
preservation which permit the police oBcer to ta#e steps to assure
himself that the person with whom he deals is not armed with a deadly
weapon that could une<pectedly and fatally be used against the police
oBcer.
**2

Jhat are the limitation of the 3stop and fris#6 doctrine, as
establish by "merican >urisprudence from the Terry case down to
subse5uent casesK
*. That a person must be committing some overt acts, which
although suspicious do not generate probable cause to believe that he
has committed, is committing, or is attempting to commit a crime9
-. That the 3stop and fris#6 was made by the police oBcers only
for their protection9
,. That the purpose of the search is to determine whether the
person stopped and fris#ed is carrying a deadly weapon, secreted in his
person and which he may suddenly sei)e and use to resist arrest, inNict
death or injury, or e;ect escape.
11&
"#I+ill! v. Pe!$le, 12& SCRA 3%0
&0
The 3stop and fris#6 doctrine enunciated by the ?.. upreme
Court in the Terry case has been adopted in the Philippines but in
modifed form in the cases of Posadas v. Court of "ppeals
*-0
and Ganalili
v. Court of "ppeals.
*-*
The doctrine was adopted by our upreme Court
but is termed as 3stop and search6.
%n 3stop and fris#6, the police is justifed in stopping, detaining and
fris#ing a person, short of ma#ing an arrest, where based on police
e<perience 'in the Philippines this is #nown as police instinct( he senses
that the commission of a crime is afoot, even in the absence of
perception of probable case.
%n 3stop and search6, probable cause e<ists, as for instance+ '*(
the area where the stop and search is made, is verifed to be infested
with criminal activities based on prior surveillance9 '-( the individual to
be stopped and search is acting suspiciously9 and ',( he attempted to
Nee when confronted by the police, which give the oBcers probable
cause to believe that he is concealing some illegal articles in his person,
or that his appearance and behavior caused the police to entertain
reasonable suspicion, coupled with good faith, that the suspect is
engaged in some criminal activity.
Compare+ The case of Terry v. =hio with the cases of Posadas v.
Court of "ppeals and Ganalili v. Court of "ppeals.
,. Sear!h of &eh#!les2 4 Cecause it is often times impractical to
re5uire a police oBcer to procure search warrant, jurisprudence permits
the search without warrant of an automobile on the road when the
oBcer has reasonable ground to believe that a crime has been
committed or is being committed by the occupants of the vehicle, or
such vehicle is being used for commission of crime and there is no
suBcient time for the oBcer to procure a search warrant. Jhen the
search is made under these circumstances the warrantless search of a
vehicle is held valid.
This e<ception is easy to understand. " search warrant may be
readily obtained when the search is made in a store, dwelling house or
other immobile structure. Cut it is impracticable to obtain a warrant
when the search is conducted in moving motor vehicles, since they can
120
188 SCRA 188, 2&282&3
121
280 SCRA 400
&1
5uic#ly be moved out of the locality or jurisdiction where the warrant
must be sought.
*--

Cut the warrantless search and sei)ure must be made upon
probable cause, that is, upon the belief reasonably arising out of
circumstances #nown to the searching oBcer that the motor vehicle to
be searched without warrant contains or is carrying articles which by
law is subject to sei)ure and destruction. The power to search and
the validity of ensuing sei)ure does not always depend on the authority
of a warrant. They may also depend on reasonable cause and belief of
the searching and sei)ing oBcer that the contents of the vehicle are
o;ensive and against the law.
*-,

This e<ception also applies to vessels and aircrafts.
.. Consente" sear!h2 4 The standard norm is that search and
sei)ure of persons, house, papers and e;ects cannot be made without a
valid search warrant issued by a judicial authority. Jarrantless search is
considered generally as unreasonable and the evidence procured
thereunder is inadmissible in any proceeding and for any purpose.
Aowever, li#e some constitutional rights, this constitutional
protection can be waived where the person to be searched gives his
consent thereto. The waiver may be by virtue of statutory provision, or
by e<pressed or implied consent. Aowever, distinction must be made
between submission by the person to be searched to an apparent police
authority, as opposed to free, voluntary and un5ualifed consent. Gere
ac5uiescent by an accused under certain circumstances does not
necessarily amount and constitute a waiver of the right against search
without warrant.
To constitute a waiver the following re5uisites must be
established+ '*( that the right must e<ist9 '-( that the person to be
searched has #nowledge, actual or constructive, of the e<istence of such
right9 ',( that such person has an actual intention to relin5uish the
right.
*-.

Relevant to the determination of waiver are the following
characteristic of the person giving consent and the environment in
which such consent is given+ '*( the age of the person ma#ing the
waiver9 '-( whether he was in a public or secluded location9 ',(
122
Pe!$le v. 2a,ia!#, 121 SCRA 32%
123
Pe!$le v. Bagi#-a, 214 SCRA 13
124
Ca)alle# v. C!+,- !. A$$eal#, ;.R. 5!. 1312&2, Jan. 15, 2000
&2
whether he objected to the search or just passively loo#ed on9 '.( the
education and intelligence of the individual9 '&( the presence of
coercive police procedure9 ':( the person@s belief that no incriminating
evidence would be found in his possession9 '1( the nature of the police
5uestioning9 '/( the environment in which the 5uestioning too# place9
and '2( the possibility of vulnerable subjective state of the person
consenting.
*-&

The burden is upon the People to establish, by clear and positive
testimony, that the necessary consent was obtained and that it was free
and voluntary given.
*-:
The 5uestion of consent is a factual issue which
must be determined by the court.
K2 Pla#n &#e$ "o!tr#ne2 4 The plain view sei)ure is another
e<ception to the constitutional proscription that no property may be the
subject of search and sei)ure unless by virtue of a valid search warrant.
Cut for this doctrine to operate the following re5uisites must concur+
'a( Prior justifcation for the intrusion. D This means that the
oBcer ma#ing the observation was in the place where he had the legal
authority to be at the time.
'b( %nadvertent discovery of an illegal article or incriminatory
evidence. ! This signifes that without searching for that specifc illegal
article or evidence, the oBcer inadvertently or unintentionally saw the
illegal object or incriminating evidence e<posed and in plain view to his
na#ed eyes. The re5uirement of inadvertence signifes that the oBcer
must not have #nown in advance the location of the evidence and
intended to sei)e it.
*-1

'c( The illegality of the object or incriminating evidence is
immediately apparent.! The illegal object or incriminating evidence is
immediately apparent to the na#ed eyes of the oBcer and subject to
immediate sei)ure. The important thing is that there is probable cause
to warrant sei)ure of the object. Aowever, the immediately apparent
test does not re5uire high degree of certainty as to the incriminating
character of evidence D incriminating means the furnishing of evidence
as proof of circumstances tending to prove the guilt of a person.
*-/
125
Ca)alle# v. C!+,- !. A$$eal#, #+$,a.
121
/)i0.
12%
Uni-e0 La)!,a-!,ie#, /n. v. /#i$, 411 SCRA 5%4' Ching v. Salina, S,., 412 SCRA 241
128
/)i0,
&3
N223 Aowever, if the police oBcer is wrongfully in the premises
of an individual whatever he may sei)e even if in plain view is also
illegal. "n unwarranted intrusion into a constitutionally protected area
will not support a plain view sei)ure, and this rule also applies in
searches of individual.
G2 Sear!h #n e+er!#se of 'ol#!e 'o$er un"er the !ustoms
la$24 Customs authority who are duly commissioned to enforce tari;
and customs laws have the power to search and sei)e goods suspected
to have entered the country illegally or in violation of the customs law.
They may at any time enter, pass through, or search any land or
enclosure or any warehouse, store or other buildings not being used as
a dwelling house. Cut customs authorities may not enter a dwelling
house without a search warrant validly issued by a judge.
>2 E+#.ent !#r!umstan!es2 4 This e<ception to search without
warrant contemplates of situations where some #ind of emergency
ma#es obtaining a search warrant impractical, useless, dangerous or
unnecessary. Aowever, the e<istence of probable cause is imperative.
There are instances, however, where warrantless search and
sei)ure can be conducted without necessarily being preceded by a
lawful arrest. Eor e<ample the stop and search at chec# points without
warrant.
>4a2 Che!6 'o#nts2 4 The setting up of chec# points where
motor vehicles are stopped on the highway and visually searched even
without probable cause has been held valid by the upreme Court as
not o;ensive to the constitutional mandate against unreasonable
searches and was justifed as a security measure to enable authorities
to pursue their mission of establishing e;ective territorial defense, and
maintenance of the peace and order for the beneft of the public. Chec#
points during abnormal times, when conducted within reasonable limits
are part of the price which we must pay for an orderly society and
peaceful community.
*-2

Sec. )4. >otion to 3uash a search .arrant or to suppress
e/idence4 .here to fle. " A mot#on to *uash a sear!h $arrant
an"Oor to su''ress e&#"en!e o%ta#ne" there%y may %e :le" #n
12&
7al4!n-e v. De 7illa, 1%8 SCRA 211
&4
an" a!te" u'on %y the !ourt $here the a!t#on has %een
#nst#tute"2 If no !r#m#nal a!t#on has %een #nst#tute"/ the mot#on
may %e :le" #n an" resol&e" %y the !ourt that #ssue" the sear!h
$arrant2 -o$e&er/ #f su!h !ourt fa#le" to resol&e the mot#on an"
a !r#m#nal !ase #s su%se*uently :le" #n another !ourt/ the
mot#on shall %e resol&e" %y the latter !ourt2
C O M M E N T S
The constitutional mandate is that any evidence obtained by
means of unreasonable search and sei)ure shall be inadmissible in
evidence for any purpose and in any proceeding. '"rt. %%%, ec ,'-(,
*2/1 Constitution.(
Jhat is the remedy of the accused where the search and sei)ure was
illegally procured and unreasonably enforcedK
The accused should fle a motion to 5uash the search warrant and
to suppress the evidence sei)ed by virtue of such invalid warrant.
uppose the illegal articles were sei)ed by the police oBcers from the
accused without a search warrant, but the accused believes that the
sei)ure was unlawful and unreasonable, what remedy should he pursue
to prevent the production and admission in evidence of those articlesK
The accused should also fle a motion to suppress the evidence
illegally sei)ed.
Jhere should the motion to 5uash the search warrant andHor to
suppress the evidence illegally obtained be fledK
The motion to 5uash the search warrant andHor to suppress the
illegally procured evidence may be fled and acted upon by the court
where the criminal action has been instituted.
Cut suppose no criminal action has been instituted, where should
the motion to 5uash the search warrant andHor to suppress the evidence
be fledK
&5
The motion to 5uash the search warrant andHor to suppress the
evidence may be fled and resolved by the court that issued the search
warrant.
uppose the issuing court failed to resolve the motion and meanwhile a
criminal action is subse5uently instituted in another court which court
should act and resolve the motionK
Jhere the issuing court failed to resolve the motion and a criminal
case is subse5uently fled in another court, the motion should be refled
for the resolution of the latter court
uppose the warrantless search and sei)ure was unlawful, where
should the accused contest the presentation and admission of the
illegally procured evidence if no criminal case has been fled.
%f the illegally sei)ed articles are contrabands per se, the accused
has to wait for a criminal action to be instituted and fle his motion to
suppress the presentation and admission the said evidence in the court
where such criminal action is pending, if such evidence is presented and
o;ered.
Aow should the illegally sei)ed properties be disposedK
The illegality of the search warrant does not call for the return of
the things sei)ed, if possession thereof is prohibited by law. "lthough
the issuance of the search warrant is tainted with irregularity, the sei)ed
property cannot be returned to its owner, where possession of those
articles by private persons is prohibited by law.
*,0

uppose the search and sei)ure is unreasonable what move
should the owner underta#e to protect his right and interestK
The owner should apply for the return to him of the property
illegally sei)ed from him before the court where the criminal action has
130
U* Jhe*-in v. 7illa,eal, 42 Phil. 881' @ee S+e J!* v. Al4e0a, %0 Phil. 141
&1
been instituted, or where no such action has been fled, before the court
which issued the search warrant.
Aowever, this is on the assumption that the properties illegally
sei)ed are not in themselves illegal in their nature.
Rule 77F 4 A I L
ubstantive basis of the Rule on Cail. ! ?nder ection *,, "rticle
%%% of the *2/1 Constitution, all person, e<cept those charged with
o;ense punishable by reclusion perpetua or life imprisonment when the
evidence of guilt is strong, shall, before conviction, be bailable by
suBcient sureties, or be released on recogni)ance as may be provided
by law. The right to bail shall not be impaired even when the privilege
of habeas corpus is suspended. F<cessive bail shall not be re5uired.
Section 1. Bail defned. - Cail is the security given for the release
of a person in custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as re5uired under the
conditions hereafter specifed. Cail may be given in the form of
corporate surety, property bond, cash deposit, or recogni)ance.
C O M M E N T S

Linds of bail+
*. Corporate surety
-. Property bond,
,. Cash deposit,
.. Recogni)ance.
Jhere should bail be fledK
The bail bond may be fled either with the court where the case is
pending, or with any Regional Trial Court of the place of arrest, or it no
&%
RTC judge is available, with any Getropolitan or Gunicipal Trial Court of
the place of arrest.
*,*

" person lawfully arrested and detained but who has not yet been
formally charged in court may see# his provisional release through the
fling of an application for bail before the proper court where he is held
or detained.
*,-

"ll applications for bail and judicial bonds shall be coursed through
the cler# of court who shall see to it that the bonds are in order D every
bond shall be accompanied by clearance from the upreme court
showing that the issuing company is 5ualifed to transact business,
which clearance is valid only for ,0 days from the date of its issuance.
*,,
Jhat is the purpose of bailK
The purpose of bail is to relieve an accused from the rigors of
imprisonment until his conviction and yet secure his appearance at the
trial.
*,.
Cail acts as the reconciling mechanism to accommodate both
the interest of the accused in pre!trial liberty, and society@s interest in
securing the presence of the accused at the trial.
*,&
Jhat is the basic reason of the constitutional guarantee of the
right to bailK
The basic reason for such constitutionally guaranteed right to bail
Nows from the presumed innocence of every accused before conviction.
Jhat is the importance of re5uiring the accused to post bail as a
condition for his releaseK
The importance of bail is to assure the appearance of the accused
in court whenever his presence is re5uired in the course of the criminal
proceedings. The e;ect of bail is that the custody of the accused and
the responsibility of his appearance in court, in legal contemplation, is
131
An!n*4!+# Le--e,8C!4$lain- again#- 6!n. 2a,il!+ R+ne#8(+4ang, e-., 11% SCRA 428
132
R+i3 v. Bel0ia, J,., 451 SCRA 402
133
An!n*4!+# Le--e,8C!4$lain-, e-., #+$,a.
134
Al4e0a v. 7illal+3, 11 SCRA 38' Pa0e,anga v. C!+,- !. A$$eal#, 24% SCRA %41'
Pe!$le v. J+0ge, R(C82+n-ingl+$a Ci-*, ;.R. 5!. 151005, J+ne 8, 2004
135
Levi#-e v. C.A., 115 SCRA 11&
&8
transferred to the bondsman. %n other words, his bondsman becomes in
law the jailer of the accused.
*,:

Gay an accused who is at!large be allowed to post bail to avoid
arrest and the inconvenience of being placed behind the barsK
4o, because the right to be released on bail presupposes that the
accused has been arrested and in custody of the law. %n other words,
the accused must be in the actual custody of the law to be entitled to
bail. This proceeds from the legal defnition of bail that the person is in
the custody of the law. Aence, it is essential that a person must be
under arrest or legally deprived of his liberty before bail can be availed
of. %t would be absurd and incongruous to grant bail to one who is free
or at liberty.
*,1

%s the rule that a person must actually be under arrest before he
can avail of the right to bail absoluteK
4o. "n accused who has not been arrested may be allowed to
post bail under the following conditions+
*. The accused is physically incapacitated to appear personally in
court to post bail, li#e for instance he is confned in hospital on account
of serious ailment which physically immobili)es him9 and
-. Ae manifested in his motion to be admitted to bail that he was
submitting his person to the custody of the court.
*,/
Aow may legal custody of the accused be ac5uiredK
*. Jhen he is lawfully arrested with or without warrant
9
-. Jhen he voluntarily surrenders himself to a person in authority
or his agent.
Section . !onditions of the bail re"uirements. ! "ll #inds of bail
are subject to the following conditions+
131
PPS/ v. San0igan)a*an, 14& SCRA 318
13%
6ila,i!, e- al. v. 6!n. Oa4$!, A.2. 5!. 2(J80081305, De. 3, 2001
138
San-iag! v. 7a#I+e3, 21% SCRA 133' Pa0e,anga v. C!+,- !. A$$eal#, 245 SCRA %14
&&
'a( The underta#ing shall be e;ective upon approval, and unless
cancelled, shall remain in force at all stages of the case until
promulgation of the judgment of the Regional Trial Court, irrespective of
whether the case was originally fled in or appealed to it9
'b( The accused shall appear before the proper court whenever
re5uired by the court or these Rules9
'c( The failure of the accused to appear at the trial without
justifcation and despite due notice shall be deemed a waiver of his right
to be present thereat. %n such case, the trial may proceed in absentia#
and
'd( The bondsman shall surrender the accused to the court for
e<ecution of the fnal judgment.
The original papers shall state the full name and address of the
accused, the amount of the underta#ing and the conditions re5uired by
this section. Photographs 'passport si)e( ta#en within the last si< ':(
months showing the face, left and right profles of the accused must be
attached to the bail.
C O M M E N T S
%s payment of premium, when due, a pre!condition for a bail bond
posted by the accused to remain in forceK
4o. The bail once approved by the court remains e;ective at all
stages of the case until promulgation of the judgment of the Regional
Trial Court. %t is only upon the promulgation of RTC@s judgment when the
bail becomes functus ofcio. Payment of premium when due is not a
pre!condition for the bail to remain in force.
%n the event of non!payment of the premium when due, the
remedy of the bondsman is to surrender the body of the accused to the
court trying the case and move for the cancellation of the bail.
Aow will the criminal proceedings be a;ected if, despite notice
duly served on the accused, his bondsman and his counsel, he fails to
appear at the trialK
*. The court may order the trial to proceed even in the absence of
the accused. This is #nown as trial in absentia.
100
The presence of the accused in mandatory only at his arraignment
and at the promulgation of judgment of conviction. %n any other stage
of the proceeding his presence may be dispensed on justifed ground.
-. The court may order the bail forfeited, and re5uire the
bondsman to produce the body of its principal within ,0 days from
notice and show cause why judgment should not be rendered against
the amount of its bail.
,. Geanwhile, the court may order the arrest of the accused.
Section 3. $o release or transfer e;cept on court order or
-ail. - No 'erson un"er "etent#on %y le.al 'ro!ess shall %e
release" or transferre" e+!e't u'on or"er of the !ourt or $hen
he #s a"m#tte" to %a#l2
Section 4. ?ail: a matter of ri&ht4 e;ception. " All 'ersons
#n !usto"y shall %e a"m#tte" to %a#l as a matter of r#.ht/ $#th
su;!#ent suret#es/ or release" on re!o.n#=an!e as 'res!r#%e" %y
la$ or th#s Rule (a) %efore or after !on&#!t#on %y the
Metro'ol#tan Tr#al Court/ Mun#!#'al Tr#al Court/ Mun#!#'al Tr#al
Court #n C#t#es/ or Mun#!#'al C#r!u#t Tr#al Court/ an" (%) %efore
!on&#!t#on %y the Re.#onal Tr#al Court of an o0ense not
'un#sha%le %y "eath/ reclusion perpetua or l#fe #m'r#sonment2
C O M M E N T S
?nder the present rule, a hearing on an application for bail is
mandatory, whether bail is a matter of right or of discretion, the
prosecutor should be given reasonable notice of hearing, or at least his
recommendation on the matter must be sought.
*,2
-o$ shoul" a ,u".e 'ro!ee" or a!t $here an a''l#!at#on
for %a#l #s :le" #n h#s !ourt1
72 et the application for hearing. ?nder the present rules, a
hearing of the application for bail is mandatory. Jhether bail is a
matter of right or of discretion, the prosecution should be given
13&
C! v. Pla-a, 453 SCRA 321' 2a)+-a# v. Pa,ell!, 45& SCRA 318
101
reasonable notice of hearing, or at least his recommendation on the
matter must be sought9
-. 4otify the prosecution of the hearing on the application for bail,
or re5uire him to submit his recommendation. ?nder ection */ of this
Rule, notice of application to prosecutor, states+ 3%n the application for
bail under ection / of this Rule, the court must give reasonable notice
of the hearing to the prosecutor or re5uire him to submit his
recommendation.
,. Conduct a hearing on the application for bail whether or not
the prosecution presents evidence showing that the guilt of the
accused is strong, or if the o;ense charged is non!bailable, to enable
the court to e<ercise its discretion9
.. %n case the o;ense is non!bailable, decide whether the
evidence of guilt of the accused is strong based on the summary of the
evidence of the prosecution9
&. %f the guilt of the accused is not strong, f< the amount of bail
and discharge the accused upon approval of the bail bond9
:. %f the o;ense charged is bailable, f< the amount of the bail
based on the factors and guidelines prescribed in ection 2 of Rule ll..
*.0

Jhat are the types of bail which an accused may submit to the
court to obtain temporary libertyK
*. Corporate surety. D Relates to bail bonds posted by the accused
and an oBcer ot the corporation authori)ed by its board of directors to
act for and in behalf of the corporation.
-. Property bond. D %t is an underta#ing by a property owner
constituted as a lien on his real property and conformed by the owner as
security for the amount of the bail.
,. Cash bail.
.. Recogni)ance. D "n underta#ing by the accused and by a
responsible member of society that the accused will ma#e himself
available to the court and will always appear before it whenever the
140
Oena, v. 2a)+-in, 452 SCRA 3%%' C! v. Pla-a, 453 SCRA 321' 2a)+-a# v. Pe,ell!, 45&
SCRA 318
102
court which release him from custody so re5uires his personal
appearance.
Jhy is hearing on the application for bail necessary irrespective of
whether bail is a matter of right or a matter addressed to the discretion
of the courtK

" hearing on the application for bail is mandatory because certain
factors in f<ing the bail 'li#e the character of the crime, the probability
of his jumping bail, among others( call for presentation of evidence. %t is
impossible for the judge, acting on the application for bail, to consider
these factors alone by himself in his determination of the propriety of
the accused@s motion for bail. The fact that the prosecution interposes
no objection to the application of the accused for bail does not relieve
the judge of his duty to set the motion for bail for hearing.
*.*
%s it necessary for a judge, acting on an application for bail, to
write his order thereonK
Ies, and there are three reasons, why a judge should write down
his order whether he grants or denies the application of the accused for
bail, namely+
*. The summary of the evidence in the order is an e<tension of
the hearing, thus, a part of procedural due process, wherein the
evidence presented during the hearing is formally recogni)ed as having
been presented and more important, such evidence was considered.
The failure to include every piece of evidence in the summary presented
by the prosecution in their favor during the hearing would be
tantamount to not giving them the opportunity to be heard in the said
hearing, for the inference would be that they were not considered at all
in weighing the evidence presented by the parties. uch would be a
denial of due process, because due process means not only giving every
contending party the opportunity to be heard, but also for the court to
consider e$er% piece of e$idence presented& fa$orable or other'ise
-. The summary of the evidence in the order is the basis for the
judge@s e<ercise of his judicial discretion. =nly after weighing the pieces
of evidence as contained in the summary may the judge formulate his
141
2anag+el!0 v. J+0ge Pali)an, A.2. 5!. R(J80281%21, 2a,. 2&, 2004' C!44i##i!ne,
D!4ing! v. "Ce+-ive J+0ge Paga*a-an, A.2. 5!. R(J80381%51' SPO1 Cane0a 6!n.
Alaan, A.2. 5!. R(J801813%1, Jan. 23, 2001' ;elai! v. J+0ge Fl!,e#, A.2. 5!.
R(J8&&81488,J+ne 20, 2000
103
conclusion as to whether the evidence of guilt against the accused is
strong or not, based on his sound judgment.
*.-
,. The contending parties have the right to be informed of the
grounds whereof the application for bail is granted or denied.
To recapitulate, when bail is a matter of right+
*. Cefore or after conviction by the frst level court, bail is a
matter of right.
-. Cefore conviction by the RTC for an o;ense not punishable by
death, reclusion perpetua, or life imprisonment, bail is a matter of right.

,. " person who has been arrested, detained or restrained, but
has not been charged retains his right to bail, until he is charged with a
capital o;ense and the evidence of guilt is strong. 'Refer to ection *1!
c, Rule **..(
Section 5. ?ail: .hen discretionary. 4 U'on !on&#!t#on %y
the Re.#onal Tr#al Court of an o0ense not 'un#sha%le %y "eath/
reclusion perpetua: or l#fe #m'r#sonment/ a"m#ss#on to %a#l #s
"#s!ret#onary2 The a''l#!at#on for %a#l may %e :le" an" a!te"
u'on %y the tr#al !ourt "es'#te the :l#n. of a not#!e of a''eal/
'ro&#"e" #t has not transm#tte" the or#.#nal re!or" to the
a''ellate !ourt2 -o$e&er/ #f the "e!#s#on of the tr#al !ourt
!on&#!t#n. the a!!use" !han.e" the nature of the o0ense from
non4%a#la%le to %a#la%le/ the a''l#!at#on for %a#l !an only %e
:le" $#th an" resol&e" %y the
A''ellate !ourt2
Shoul" the !ourt .rant the a''l#!at#on/ the a!!use" may
%e allo$e" to !ont#nue on 'ro&#s#onal l#%erty "ur#n. the
'en"en!y of the a''eal un"er the same %a#l su%,e!t to the
!onsent of the %on"sman2
If the 'enalty #m'ose" %y the tr#al !ourt #s #m'r#sonment
e+!ee"#n. s#+ (G) years/ the a!!use" shoul" %e "en#e" %a#l/ or
h#s %a#l shall %e !an!elle" u'on a sho$#n. %y the 'rose!ut#on/
$#th not#!e to the a!!use"/ of the follo$#n. or other s#m#lar
!#r!umstan!es3
142
Pe!$le v. R(C J+0ge !. 2+n-ingl+$a Ci-*, e- al., J+ne 8, 2004' San-!# v. O.ila0a, 3l5 Phil.
104
(a) That he #s a re!#"#&#st/ *uas#4re!#"#&#st or ha%#tual
"el#n*uent/ or has !omm#tte" the !r#me a..ra&ate" %y the
!#r!umstan!e of re#terat#onA
(%) That he has 're&#ously es!a'e" from le.al
!on:nement/ e&a"e" senten!e/ or &#olate" the !on"#t#ons of h#s
%a#l $#thout &al#" ,ust#:!at#onA
(!) That he !omm#tte" the o0ense $h#le un"er 'ro%at#on/
'arole or !on"#t#onal 'ar"onA
(") That the !#r!umstan!es of h#s !ase #n"#!ate the
'ro%a%#l#ty of D#.ht #f release" on %a#lA or
(e) That there #s un"ue r#s6 that he may !omm#t another
!r#me "ur#n. the 'en"en!y of the a''eal2
The a''ellate !ourt may/ motu proprio or on mot#on of any
'arty/ re&#e$ the resolut#on of the Re.#onal Tr#al Court after
not#!e to the a"&erse 'arty #n e#ther !ase2
C O M M E N T S
ection & provides when it is discretionary upon the Regional Trial
Court to grant bail. %t states that upon conviction by the RTC of an
o;ense not punishable by 'death(, reclusion perpetua or life
imprisonment, admission to bail is discretionary upon the court. %t
should be recalled that under ection - of this Rule the lifetime of the
bail posted by the accused last only until the promulgation of judgment
of the RTC, after which the bail becomes functus ofcio and the accused
from then on stands without bail,
Aowever, should the accused appeal the judgment of conviction,
he may apply for bail before the trial court, if the sentence imposed on
him is not death, reclusion perpetua or life imprisonment. The trial
court may act on the application for bail provided the records of the
case have not been transmitted to the appellate court. 4onetheless, if
the judgment of the trial court convicting the accused changes the
nature of the o;ense from non!bailable to bailable, the application can
be fled only with and resolved by the appellate court.
105
%f in proper cases, the RTC grants the application for bail during
the pendency of the appeal, the accused may be allowed to remain at
temporary liberty under the same bail he posted before the trial court,
subject to the consent of the bondsman.
The accused is not entitled to bail if the penalty imposed is death,
reclusion perpetua or life imprisonment, but suppose the penalty
imposed is between : years and * day and twenty years imprisonment
may the trial court deny the application for bail fled before it by the
accusedK
"s a rule absent of the circumstances listed in ection & of this
Rule, the trial court cannot deny the application of the accused for bail,
although it may increase the bail@s amount and prescribe additional
restrictions.
Aowever, if the penalty imposed is more than : years and the
prosecution proves the e<istence of any of the circumstances
enumerated in ection &, the application of the accused for bail shall be
denied or his previous bail shall be cancelled, after proper notice to the
accused.
Aow will the criminal proceedings be a;ected if despite notice
served on the accused, his bondsman and his counsel, the accused fails
to appear at the trial.
*. The court may order the trial to proceed even in the absence of
the accused. This is #nown as trial in absentia.
The presence of the accused is mandatory only at his arraignment
and at the promulgation of judgment. Aowever, such presence may be
dispensed with in other stages of the proceedings on justifed ground.
-. The court may order the bail forfeited, and re5uire the
bondsman 'a( to produce the body of its principal within ,0 days from
notice and 'b( to show cause why judgment should not be rendered on
the amount of its bond.
,. The court may order the arrest of the accused.
Section . Capital o'ense: defned. - A !a'#tal o0ense #s
an o0ense $h#!h/ un"er the la$ e+#st#n. at the t#me of #ts
101
!omm#ss#on an" of the a''l#!at#on for a"m#ss#on to %a#l/ may %e
'un#she" $#th "eath2
C O M M E N T S
This portion of the Rules Court has been impliedly repealed by the
abolition of the death penalty.
Section #. Capital o'ense or an o'ense punisha-le -y
reclusion perpetua or life imprisonment: not -aila-le2 4 No
'erson !har.e" $#th (a !a'#tal o0ense) or an o0ense 'un#sha%le
%y reclusion perpetua or l#fe #m'r#sonment/ shall %e a"m#tte" to
%a#l $hen the e&#"en!e of .u#lt #s stron./ re.ar"less of the
sta.e of the !r#m#nal 'rose!ut#on2
C O M M E N T S
Jhat are the re5uisites to deny an accused of the right to bailK
*. The accused must be charged with an o;ense punishable with
reclusion perpetua or life imprisonment9 and
-. The evidence of guilt is strong.
Jhat does the re5uisite that 3the evidence of guilt is strong6
denoteK
3The evidence of guilt is strong6 connotes clear and strong proof
which leads a well!guarded and dispassionate judgment to the
conclusion that the o;ense has been committed as charged, that the
accused is the culprit, and that the penalty of reclusion perpetua or life
imprisonment will probably be imposed on him by the law as it is
administered. %t signifes the inference of guilt, naturally to be drawn
from the evidence which is strong, clear and convincing to an unbiased
judgment and e<cludes all reasonable probability of any other
conclusion. The test is not whether the evidence establishes guilt
beyond reasonable doubt, but rather whether it shows evident guilt or a
great presumption of guilt.
*.,

143
Oa4$! v. Be,na)e, %% Phil. 550' Pe!$le v. Ca),al 303 SCRA 311
10%
Section %. ?urden of proof in -ail application. 4 At the
hear#n. of an a''l#!at#on for %a#l :le" %y a 'erson $ho #s #n
!usto"y for the !omm#ss#on of an o0ense 'un#sha%le %y ("eath)/
reclusion perpetua/ or l#fe #m'r#sonment/ the 'rose!ut#on has
the %ur"en of sho$#n. that the e&#"en!e of .u#lt #s stron.2 The
e&#"en!e 'resente" "ur#n. the %a#l hear#n. shall %e !ons#"ere"
automat#!ally re'ro"u!e" at the tr#al %ut/ u'on mot#on of e#ther
'arty/ the !ourt may re!all any $#tness for a""#t#onal
e+am#nat#on/ unless the latter #s "ea"/ outs#"e of the
Ph#l#''#nes/ or other$#se una%le to test#fy2
C O M M E N T S
ection / has the following essential components+ '*( the accused
is charged for an o;ense punishable by reclusion perpetua or life
imprisonment at the time of its commission9 '-( he applied for bail9 ',(
the prosecution opposed the application9 '.( the burden of proof is
upon the prosecution to prove that the evidence of guilt of the accused
is strong9 '&( the defense may adduce evidence rebutting the evidence
of the People9 ':( the evidence adduced by the parties during the
hearing on the application for bail is automatically reproduced at the
trial on the merit9 '1( the court may, upon application of either party,
recall any witness for additional testimony, unless such witness is
already dead, out of the country, or otherwise unable to testify.
Jhat is the nature of the hearing in bail application where the
o;ense is punishable with reclusion perpetua or life imprisonmentK
The hearing is summary in nature, meaning, a brief and speedy
method of receiving and considering how clear and strong the evidence
of guilt of the accused, just for the sole purpose of granting or denying
bail. uch summary hearing is not concerned about the 5uantity of
evidence to pronounce the guilt of the accused. %t is suBcient if the
court is satisfed if from his appreciation of the evidence, it is clear that
the accused appears guilty. %t is not necessary to demonstrate at this
stage the o;ender@s guilt beyond reasonable doubt. Precisely
there is need for trial on the merits to receive the evidence of the
People showing the guilt of the accused beyond reasonable doubt.
*..

144
Oa4$! v. Be,na)e, %% Phil. 55' Ba,! v. Re$a-al! v. 21& SCRA 220
108
%s an o;ense punishable with reclusion temporal to reclusion
perpetua bailable or non!bailableK
Cy constitutional mandate, all persons, e<cept those charged with
o;enses punishable by reclusion perpetua or life imprisonment where
the evidence of guilt is strong, shall, before conviction, be bailable by
suBcient sureties, or released on recogni)ance as may be provided by
law.
%n Cravo, >r. v. Corja
*.&
, where the accused was indicted for murder
which at the time was punishable by reclusion temporal& from its
ma<imum period to death, the upreme Court held that the crime is a
capital o;ense, because under the law e<isting at the time of its
commission and at the time of the application to be admitted to bail,
murder may be punished by death. The capital nature of an o;ense is
determined by the penalty prescribed by law at the time of its
commission and application for bail.
Gay an accused in large scale estafa where the ma<imum penalty
imposed by law is not to e<ceed ,0 years of reclusion perpetua be
allowed provisional liberty on bailK
Pursuant to Presidential 7ecree 4o. /*/, any person who shall
defraud another by means of false pretense or fraudulent acts as
defned in paragraph -'d( of "rticle ,*& of the Revised Penal Code as
amended by Rep. "ct 4o. .//&, shall be punished by the penalty of
reclusion temporal if the amount of the fraud is over *-,000 pesos but
does not e<ceed --,000 pesos, and if such amount e<ceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its
ma<imum period, adding one year for each additional *0,000 pesos but
the total penalty which may be imposed shall in no e<ceed thirty years.
The upreme Court allowed the accused to be released on
provisional liberty on bail although the penalty imposed on him was ,0
years of reclusion perpetua, as ma<imum, because although ,0 years is
within the range of reclusion perpetua, reclusion perpetua is not the
penalty imposed by law but is merely descriptive of the penalty actually
imposed. Thus, the accused who was indicted for large scale estafa was
allowed to post bail for his provisional liberty.
*.:

145
134 SCRA 411
141
Pe!$le v. 6e,nan0!, e- al., 31% SCRA 11%' Pe!$le v. Pangani)an, ;.R. 5!. 133028,
10&
Cut in the case of Citoon vs. Toledo!Gupas
*.1
, the upreme Court
held that in indictments for capital o;enses, li#e syndicated estafa, bail
shall not be granted where the evidence of guilt is strong. %n other
words, the upreme Court classifed such case D syndicated estafa D as a
capital o;ense, where, if the evidence of guilt is strong, the accused
should not be granted bail and released from custody.
uppose the prosecution refuses to adduce evidence or interposes
no objection to the application for bail in a non!bailable o;ense, may the
court act on the application for bail without hearingK
Aearings in bail applications is mandatory regardless of whether
bail is a matter of right or discretion, and regardless of whether the
prosecution objects of not, based on the evidence of guilt. The absence
of objection from the prosecution, especially where the accused stands
charged with a capital o;ense, is never a basis for grant of bail. %n such
cases the judge has no right to presume that the prosecutor #nows what
he is doing. aid reasoning is tantamount to ceding to the prosecutor
the duty of e<ercising judicial discretion to determine whether the guilt
of the accused is strong. >udicial discretion is the domain of the judge
before whom the petition for provisional liberty will be decided. The
mandated duty to e<ercise discretion has never been reposed upon the
prosecutor. Thus, even if the prosecution refuses to adduce evidence or
fails to interpose objection, it is mandatory for the court to conduct a
hearing, and as# searching and clarifcatory 5uestions.
*./

Jhat is the remedy of the accused if his application for bail is
deniedK
%f the petition to be admitted to bail is denied by the trial court, his
remedy is to fle a petition for certiorari before the Court of "ppeals, if
appropriate relief is also available therein.
*.2
+l* 10 2000' Cen3!n v. A)a0 San-!#, e-., e- al., ;R 5!. 11433%, J+ne 2%, 2004
14%
411 SCRA 1%
148
(e v. J+0ge R!4e,!, A.2. 5!. 2(J80081281, Jan. 21, 2002
14&
Pe!$le v. 2agallane#, 24& SCRA 212, 22& <1&&5=' ;alve3 v. CA, 23% SCRA 185, %14
<1&&4=' "n,ile v. Sala3a,, 181 SCRA 21%, 231 <1&&0=' Ca)alle# v. C!+,- !. A$$eal#
;.R. 5!. 113108, Fe). 3, 2005
110
Section (. ,mount of ?ail4 @uidelines. " The ,u".e $ho
#ssue" the $arrant of arrest or .rante" the a''l#!at#on (for %a#l)
shall :+ a reasona%le amount of %a#l !ons#"er#n. 'r#mar#ly/ %ut
not l#m#te" to/ the follo$#n. fa!tors3
(a) The :nan!#al a%#l#ty of the a!!use" to .#&e %a#lA
(%) The nature an" !#r!umstan!es of the o0enseA
(!) The 'enalty for the o0ense !har.e"A
(") Chara!ter an" re'utat#on of the a!!use"A
(e) A.e an" health of the a!!use"A
(f) <e#.ht of he e&#"en!e a.a#nst the a!!use"A
(.) Pro%a%#l#ty of the a!!use" a''ear#n. at the tr#alA
(h) )orfe#ture of other %a#lA
(#) The fa!t that the a!!use" $as a fu.#t#&e from ,ust#!e
$hen arreste"A
an"
(,) Pen"en!y of other !ases $here the a!!use" #s on %a#l2
C O M M E N T S
These factors provide the principal reasons why an application for
bail should be set for hearing whether bail is a matter of right or of
discretion9 to receive evidence of the factors enumerated in ection 2 of
this Rule, which may aid the court in f<ing the amount of bail.
Section )*. Corporate Surety. - Any "omest#! or fore#.n
!or'orat#on/ l#!ense" as a surety #n a!!or"an!e $#th la$ an"
!urrently author#=e" to a!t as su!h/ may 'ro&#"e %a#l %y %on"
su%s!r#%e" ,o#ntly %y the a!!use" an" an o;!er of the
!or'orat#on "uly author#=e" %y #ts %oar" of "#re!tors2
Section )). +roperty -ond: ho. posted. - A 'ro'erty %on"
#s an un"erta6#n. !onst#tute" as l#en on the real 'ro'erty .#&en
as se!ur#ty for the amount of the %a#l2 <#th#n ten (78) "ays
after a''ro&al of the %on"/ the a!!use" shall !ause the
annotat#on of the l#en on the !ert#:!ate of t#tle on :le $#th the
Re.#stry of Dee"s #f the lan" #s re.#stere"/ or #f unre.#stere" #n
the Re.#strat#on oo6 on the s'a!e 'ro&#"e" therefor/ #n the
Re.#stry of Dee"s of the 'ro&#n!e or !#ty $here the lan" l#es/
an" on the !orres'on"#n. ta+ "e!larat#on #n the o;!e of the
'ro&#n!#al/ !#ty an" mun#!#'al assessor !on!erne"2
111
<#th#n the same 'er#o"/ the a!!use" shall su%m#t to the
!ourt h#s !om'l#an!e an" fa#lure to "o so shall %e su;!#ent
!ause for the !an!ellat#on of the 'ro'erty %on" an" h#s re4arrest
an" "etent#on2
Section )2. Aualifcation of sureties in property -ond. "
The *ual#:!at#ons of suret#es #n a 'ro'erty %on" shall %e as
follo$s3
(a) Ea!h must %e a res#"ent o$ner of real 'ro'ert#es #n
the Ph#l#''#nesA
(%) <here there #s only one surety/ h#s real 'ro'erty must
%e $orth at least the amount of the un"erta6#n.A
(!) If there are t$o or more suret#es/ ea!h may ,ust#fy #n
an amount less than that e+'resse" #n the un"erta6#n. %ut the
a..re.ate of the ,ust#:e" sums must %e e*u#&alent to the
$hole amount of the %a#l "eman"e"2
In all !ases/ e&ery surety must %e $orth the amount
s'e!#:e" #n h#s o$n un"erta6#n. o&er an" a%o&e all "e%ts/
o%l#.at#ons an" 'ro'ert#es e+em't from e+e!ut#on2
Section )3. 1ustifcation of sureties. " E&ery surety shall
,ust#fy %y a;"a&#t ta6en %efore the ,u".e that he 'ossesses the
*ual#:!at#ons 'res!r#%e" #n the 're!e"#n. se!t#on2 -e shall
"es!r#%e the 'ro'erty .#&en as se!ur#ty/ stat#n. the nature of
h#s t#tle/ #ts en!um%ran!es/ the num%er an" amount of the other
%a#ls entere" #nto %y h#m an" st#ll un"#s!har.e" an" h#s other
l#a%#l#t#es2 The !ourt may e+am#ne the suret#es u'on oath
!on!ern#n. the#r su;!#en!y #n su!h manner as #t may "eem
'ro'er2 No %a#l shall %e a''ro&e" unless the surety #s *ual#:e"2
Section )4. Deposit of cash as -ail. - The a!!use" or any
'erson a!t#n. #n h#s %ehalf may "e'os#t #n !ash $#th the nearest
!olle!tor of #nternal re&enue or 'ro&#n!#al/ !#ty or mun#!#'al
treasurer/ or T-E CLERP O) COURT <-ERE T-E CASE IS
PENDINH the amount of %a#l :+e" %y the !ourt/ or re!ommen"e"
%y the 'rose!utor $ho #n&est#.ate" or :le" the !ase2 U'on
su%m#ss#on of a 'ro'er !ert#:!ate of "e'os#t an" a $r#tten
un"erta6#n. sho$#n. !om'l#an!e $#th the re*u#rements of
112
se!t#on 9 of th#s Rule/ T-E <ARDEN OR PERSON -ACINH
CUSTOD@ of the a!!use" shall release h#m $#thout ne!ess#ty of
further or"er from the !ourt2
The money "e'os#te" shall %e !ons#"ere" as %a#l an"
a''l#e" to the 'ayment of :ne an" !osts $h#le e+!ess/ #f any/
shall %e returne" to the a!!use" or to $hoe&er ma"e the
"e'os#t2
Section )5. 9eco&ni=ance. " <hene&er allo$e" %y la$ or
these Rules/ the !ourt may release a 'erson #n !usto"y on h#s
o$n re!o.n#=an!e or that of a res'ons#%le 'erson2
C O M M E N T S
?nder ection * of Republic "ct 4o. :0,:, the law on
recogni)ance, instead of bail, the person charged with any o;ense
contemplated by ection * of the said Republic "ct shall be re5uired to
sign in the presence of two witnesses of good standing in the
community a sworn statement binding himself, pending fnal decision of
his case, to report to the Cler# of the court hearing his case periodically
every two wee#s. The court may, in its discretion and with the consent
of the person charged, re5uire further that he be placed under the
custody and subject to the authority of a responsible citi)en in the
community who may be willing to accept the responsibility. %n such a
case, the aBdavit herein mentioned shall include a statement of the
person charged that he binds himself to accept the authority of the
citi)en so appointed by the court. The Cler# of Court shall immediately
report the presence of the accused person in court. F<cept when his
failure to report is for justifable reasons including circumstances beyond
his control to be determined by the court, any violation of this sworn
statement shall justify the court to order his immediate arrest unless he
fles bail in the amount forthwith f<ed by the court.
Section ): ?ail: .hen not re3uired4 reduced or
reco&ni=ance. " No %a#l shall %e re*u#re" $hen the la$ or these
Rules so 'ro&#"e2
<hen a 'erson has %een #n !usto"y for a 'er#o" e*ual to or
more than the 'oss#%le ma+#mum #m'r#sonment 'res!r#%e" for
the o0ense !har.e"/ he shall %e release" #mme"#ately/ $#thout
're,u"#!e to the !ont#nuat#on of the tr#al or the 'ro!ee"#n. on
113
a''eal2 If the ma+#mum 'enalty to $h#!h the a!!use" may %e
senten!e" #s destierro: he shall %e release" after th#rty (E8)
"ays of 're&ent#&e #m'r#sonment2
A 'erson #n !usto"y for a 'er#o" e*ual to or more than the
m#n#mum of the 'r#n!#'al 'enalty 'res!r#%e" for the o0ense
!har.e"/ $#thout the a''l#!at#on of the In"eterm#nate Senten!e
La$ or any mo"#fy#n. !#r!umstan!e/ shall %e release" on a
re"u!e" %a#l or on h#s o$n re!o.n#=an!e/ at the "#s!ret#on of the
!ourt2
C O M M E N T S
Cail shall not be re5uired in the following instances+
*. Jhen a person has been in custody for a period e5ual to or
more than the possible ma<imum imprisonment for o;ense charged, he
shall be released without posting bail, but the trial of his case or the
proceeding in his appeal shall continue9
-. Jhere the ma<imum penalty for the o;ense charged on the
accused is destierro and he has been under preventive imprisonment,
he shall be released after thirty ',0( of detention.
,. Jhen a person has been in custody for a period e5ual to or
more than the minimum period of imprisonment for the o;ense charged
on him, without reference to the %ndeterminate Law or any modifying
circumstance, he can be released on a reduced bail or on his own
recogni)ance, at the discretion of the court.
Section )#. ?ail: .here fled. - 6a) a#l #n the amount :+e"
may %e :le" $#th the !ourt $here the !ase #s 'en"#n./ or #n the
a%sen!e or una&a#la%#lty of the ,u".e thereof/ $#th any re.#onal
tr#al !ourt ,u".e/ metro'ol#tan tr#al ,u".e/ mun#!#'al tr#al ,u".e/
or mun#!#'al !#r!u#t tr#al ,u".e #n the 'ro&#n!e/ !#ty/ or
mun#!#'al#ty2 If the a!!use" #s arreste" #n a 'ro&#n!e/ !#ty/ or
mun#!#'al#ty other than $here the !ase #s 'en"#n./ %a#l may also
%e :le" $#th any Re.#onal Tr#al Court of sa#" 'la!e/ or #f no
,u".e thereof #s a&a#la%le/ $#th any metro'ol#tan tr#al ,u".e/
mun#!#'al tr#al ,u".e/ or mun#!#'al !#r!u#t tr#al ,u".e there#n2
114
(%) <here the .rant of %a#l #s a matter of "#s!ret#on/ or
the a!!use" see6s to %e release" on re!o.n#=an!e/ the
a''l#!at#on may %e :lle" #n the !ourt $here the !ase #s 'en"#n./
$hether on 'rel#m#nary #n&est#.at#on/ tr#al/ or a''eal2
(!) Any 'erson #n !usto"y $ho #s not yet %een !har.e" #n
!ourt/ may a''ly for %a#l $#th any !ourt #n the 'ro&#n!e/ !#ty/ or
mun#!#'al#ty $here he #s hel"2
C O M M E N T S
Jhere should an application for bail be fledK
*. "s a rule the application for bail should be fled in the court
where the case against the accused is pending.
-. Jhere, however, the presiding judge of the aforesaid court is
absent or not available, the bail application may be fled with any RTC
judge of the same
place, if no RTC judge is available, with any metropolitan trial judge,
municipal trial judge, or municipal circuit trial judge therein.
,. Cut where the grant of bail is a matter of discretion, or the
accused see#s to be released on recogni)ance, the application for bail
can be fled only in the court where the case is pending, whether on trial
or on appleal.
.. Jhere the accused is arrested and ta#en into custody, but has
not been charged, he may apply for bail in any Regional Trial Court of
the place or if no judge thereof is available, with any metropolitan trial
judge municipal trial judge, or municipal circuit trial judge therein D a
judge in any other place has no authority to act thereon.
*&0

uppose a person has a pending case for homicide before Cranch
* of the RTC of Ganila. Ae applied for bail before Cranch * but it so
happened that the presiding judge thereof was abroad. o the accused
person coursed his application for bail through Cranch *& of the
Getropolitan Trial Court of Ganila. Gay the presiding judge of said
Cranch of the Getropolitan Trial of Ganila act on the application of the
accused for bailK
150
/n!-+,an v. Li4#ia!, J,., 458 SCRA 48
115
4o. The Getropolitan Trial judge of Ganila has no authority to
accept and act of the application for bail of a person charged before the
RTC of Ganila, in the absence of any showing that all the RTC >udges of
Ganila were not available.
*&*

Section )%. $otice of application to prosecutor. 4 In the
a''l#!at#on for %a#l un"er Se!t#on L of th#s Rule/ the !ourt must
.#&e reasona%le not#!e of the hear#n. to the 'rose!utor or
re*u#re h#m to su%m#t h#s re!ommen"at#on2
Section )(. 9elease on -ail. " The a!!use" must %e
"#s!har.e" u'on a''ro&al of the %a#l %y the ,u".e $#th $hom #t
$as :le" #n a!!or"an!e $#th se!t#on 7> of th#s Rule2
<hen %a#l #s :le $#th a !ourt other than $here the !ase #s
'en"#n./ the ,u".e $ho a!!e'te" the %a#l shall for$ar" #t/
to.ether $#th the or"er of release an" other su''ort#n. 'a'ers/
to the !ourt $here the !ase #s 'en"#n./ $h#!h may/ for .oo"
reasons/ re*u#re a "#0erent one to %e :le"2
Section 2*. Increase or reduction of -ail. 4 After the
a!!use" #s a"m#tte" to %a#l/ the !ourt may/ u'on .oo" reason/
e#ther #n!rease or "e!rease #ts amount2 <hen #n!rease/ the
a!!use" may %e !omm#tte" to !usto"y #f he "oes not .#&e %a#l #n
the #n!rease amount $#th#n a reasona%le 'er#o"2 An a!!use"
hel" to ans$er a !r#m#nal !har.e/ $ho #s release" $#thout %a#l
u'on :l#n. of the !om'la#nt or #nformat#on/ may/ at any
su%se*uent sta.e of the 'ro!ee"#n.s $hene&er a stron.
sho$#n. of .u#lt a''ears to the !ourt/ %e re*u#re" to .#&e %a#l #n
the amount :+e"/ or #n l#eu thereof/ !omm#tte" to !usto"y2
Section 2). Borfeiture of -ail. " <hen the 'resen!e of the
a!!use" #s re*u#re" %y the !ourt or these Rules/ h#s %on"sman
shall %e not#:e" to 'ro"u!e h#m %efore the !ourt on a .#&en
"ate an" t#me2 If the a!!use" fa#ls to a''ear #n 'erson as
re*u#re"/ h#s %a#l shall %e "e!lare" forfe#te" an" the %on"smen
.#&en th#rty (E8) "ays $#th#n $h#!h to 'ro"u!e the#r 'r#n!#'al
an" to sho$ !ause $hy no ,u".ment shoul" %e ren"ere" a.a#nst
151
2angalin0an v. !+,- !. A$$eal#, 241 SCRA 105
111
them for the amount of the#r %a#l2 <#th#n the sa#" 'er#o"/ the
%on"smen must3
(a) 'ro"u!e the %o"y of the#r 'r#n!#'al or .#&e the reason
for h#s non4'ro"u!t#onA an"
(%) e+'la#n $hy the a!!use" "#" not a''ear %efore the
!ourt $hen :rst re*u#re" to "o so2
)a#l#n. #n these t$o re*u#s#tes/ a ,u".ment shall %e
ren"ere" a.a#nst the %on"smen/ ,o#ntly an" se&erally/ for the
amount of the %a#l2 The !ourt shall not re"u!e or other$#se
m#t#.ate the l#a%#l#ty of the %on"smen/ unless the a!!use" has
%een surren"ere" or #s a!*u#tte"2
C O M M E N T S
uppose an accused was allowed provisional liberty on bail. %n the
course of the criminal proceedings, the court issued an order re5uiring
the accused to appear before it on a certain date and time. The order
was served on the bondsmman. Aowever, the accused failed to appear
at the appointed date and time. tate how the court should proceed
under the circumstances.
The court should issue another order declaring the bail bond of
the accused forfeited and giving the bondsmen thirty ',0( days from
notice of said order within which to produce the body of the accused
and to show cause why judgment should not be rendered against them
for the amount of their bail bond.
The bondsmen must comply with both re5uisites9 failing to do so
will authori)e the court to render judgment against them for the amount
of their bail bond, that is, the bond is confscated in favor of the
8overnment.
Gay the court reduce or mitigate the liability of the bondsmenK
Ies, but the reduction or mitigation is subject to the pre!condition
that the accused has been surrendered, or else has been ac5uitted.
11%
uppose within the ,0!day period after the forfeiture order of the
bail bond, the bondsmen surrendered the accused to the City >ail
Jarden of Ganila and presented to the court proof thereof. "fterwards,
the bondsmen moved before the court not to render judgment against
the amount of the bond on the ground that they have already
surrendered the accused who is now in the custody of the City >ail
Jarden of Ganila. %s the motion of the bondsmen meritoriousK JhyK
The motion is not meritorious. The mere surrender of the accused
after the bail bond has been forfeited because of his failure to appear
when frst re5uired, will not suBce to relieve the bondsmen from their
liability under the bail bond. %t is necessary for them to e<plain the non!
appearance of the accused when the court frst re5uired him to do so. %f
the bondsmen fail to comply with any of the two re5uisites, or both of
them, the court may proceed to render judgment against the amount of
the bail bond.
*&-

uppose the court set the arraignment of the accused on Garch
*0. Copy of the =rder was served on the bondsmen earlier on Garch *.
Aowever, on the scheduled date of his arraignment, the accused failed
to appear. o the court issued an order declaring the bail bond forfeited
and re5uired the bondmen to produce the accused and show cause why
judgment should not be rendered against the amount of their bond,
within ,0 days from receipt of the said order. =n Gay &, the bondsmen
came to the court with their written motion alleging that they were not
able to produce the body of the accused on Garch *0, when frst
re5uired, because he was arrested for another o;ense and was detained
in another jail and that they learned this fact only on Gay ,. The
bondsmen therefore pray the court not to render judgment against the
amount of their bond and that they be relieved from their liability
thereunder. %f you were the judge, how will you resolve this incident.
The prayers of the bondsmen should be denied. Jhen they
assumed their obligations under the bail bond, the bondsmen became in
law the jailers of the accused. They ac5uired the custody of his person
from the original jailer. "lthough they are not obliged to confne him
physically and actually, they are subrogated to all the rights and duties
which the jail authorities have to ma#e their control of him e;ective.
Thus, the bondsmen must #now at all times his movements and
whereabouts to carry out their obligations under he bail bond. They are
e<pected to be aware of the subse5uent arrest of their principal on
152
Pe!$le v. S* Beng ;+a-, e- al., 105 Phil. 5%4
118
account of his commission of another crime and should have reported
this fact to the court when they were frst re5uired to produce him.
These obligations belong to the bondsmen, not the court.
*&,

Section 22. Cancellation of -ail. - U'on a''l#!at#on of the
%on"smen/ $#th "ue not#!e to the 'rose!utor/ the %a#l may %e
!an!elle" u'on surren"er of the a!!use" or 'roof of h#s "eath2
The %a#l shall %e "eeme" automat#!ally !an!elle" u'on
a!*u#ttal of the a!!use"/ "#sm#ssal of the !ase/ or e+e!ut#on of
the ,u".ment of !on&#!t#on2
In all #nstan!es/ the !an!ellat#on shall %e $#thout 're,u"#!e
to any l#a%#l#ty on the %a#l2
C O M M E N T S
The judgment against the bond is fnal judgment or fnal order and
subject to appeal. Cut the order of e<ecution is not appealable. The
remedy against a writ of e<ecution is a special civil action under Rule
:&.
Section 23. ,rrest of accused out on -ail. - )or the
'ur'ose of surren"er#n. the a!!use"/ the %on"smen may arrest
h#m or/ u'on $r#tten author#ty en"orse" on a !ert#:e" !o'y of
the un"erta6#n./ !ause" h#m to %e arreste" %y a 'ol#!e o;!er or
any other 'erson of su#ta%le a.e an" "#s!ret#on2
An a!!use" release" on %a#l may %e re4arreste" $#thout
the ne!ess#ty of a $arrant #f he attem'ts to "e'art from the
Ph#l#''#nes $#thout the 'erm#ss#on of the !ourt $here the !ase
#s 'en"#n.2

C O M M E N T S
Jhen bail was given, the accused is regarded as delivered to the
custody of the bondsmen, who become in law the jailers of the former.
Their custody of him is the continuance of the original imprisonment,
and although they cannot actually confne him, they are subrogated to
153
U.S. v. A00i#!n, e- al., 2% Phil, 512' Pe!$le v. ;!n3ale#, 105 Phil. 4%
11&
all the rights and means which the 8overnment possess to ma#e their
control of him e;ective.
*&.

The court, with or without application of the bondsmen, retains
the power to order the arrest of the accused person released on bail if
shown that he attempting to escape or is in hiding.
*&&


Section 24. $o -ail after fnal 2ud&ment4 e;ception. - No
%a#l shall %e allo$e" after a ,u".ment of !on&#!t#on has %e!ome
:nal2 If %efore su!h :nal#ty/ the a!!use" a''l#es for 'ro%at#on/
he may %e allo$e" tem'orary l#%erty un"er h#s %a#l2 <hen no
%a#l $as :le" or the a!!use" #s #n!a'a%le of :l#n. one/ the !ourt
may allo$ h#s release on re!o.n#=an!e to the !usto"y of a
res'ons#%le mem%er of the !ommun#ty2 In no !ase shall %a#l %e
allo$e" after the a!!use" has !ommen!e" to ser&e h#s
senten!e2
(Se!t#on 9K2 Court su'er&#s#on of "eta#nees2)
Section 2. ?ail not a ?ar to 5-2ection to Ille&al ,rrest:
CacD of or Irre&ular +reliminary In/esti&ation. - An a''l#!at#on
for or a"m#ss#on to %a#l shall not %ar the a!!use" from
!hallen.#n. the &al#"#ty of the arrest or the le.al#ty of the
$arrant #ssue" therefor/ or from assa#l#n. the re.ular#ty or
*uest#on#n. the a%sen!e of a 'rel#m#nary #n&est#.at#on of the
!har.e a.a#nst h#m/ 'ro&#"e" that he ra#ses them %efore
enter#n. h#s 'lea2 The !ourt shall resol&e the matter as early as
'ra!t#!a%le %ut not later than the start of the tr#al of the !ase2
C O M M E N T S
Jhat are the matters not waived by an application for or
admission to bail of the accusedK
*. To challenge the validity of the arrest9
-. To 5uestion the legality of the warrant issued for his arrest9
,. To assail the regularity of the preliminary investigation9 and
154
UK S. A00i#!n, 2% Phil. 513
155
/)i0.
120
.. To 5uestion the absence of a preliminary investigation.
Jhat is the pre!condition in order that the accused may maintain
these rightsK
Ae must raise these matters before he enters his plea, otherwise
his failure to do so shall be deemed a waiver of his rights.
The court must resolve the incident as soon as practicable, but not
later than the start of the trial on the merits.

Rule 77K2 4 RIH-TS O) T-E ACCUSED
(a)2 The r#.ht to %e 'resume" #nno!ent unt#l the !ontrary
#s 'ro&e" %eyon" reasona%le "ou%t2
C O M M E N T S
"n accusation is not synonymous with guilt. =nly the court,
following the observance of the re5uirements of due process, has the
authority to pronounce an accused guilty of an o;ense. Jhosoever
imputes on another the commission of a criminal o;ense has the burden
of proving his accusation with moral certitude. The accused need not
prove his innocence9 this is constitutionally and procedurally presumed.
uch presumption last until overwhelmed by contrary proof beyond
reasonable doubt as pronounced by the court.
Proof beyond reasonable doubt, however, does not mean absolute
certainty. =nly moral certainty is re5uired, that is, such degree of proof
which would produce conviction in an unprejudiced mind.
Goral certainty signifes such proof as will satisfy the judgment
and conscience of the judge as a man of reason that the defendant is
guilty of the crime charged. The doctrine e<cludes conjecture or
suspicion of guilt.
(%) The r#.ht to %e #nforme" of the nature an" !ause of
the a!!usat#on a.a#nst h#m2
121
C O M M E N T S
This right is satisfed by the process of arraignment. Through this
process which is always done in open court, the judge or the Cler# of
court reads to the accused the complaint or information in a language
which he understands, e<plains to him the meaning and import of the
accusation to the end that he fully understands the charge, and after
which he as#s the accused how does he pleads to the charge, that is,
whether guilty or not guilty.
7uring arraignment it is mandatory that the accused enters his
plea with the assistance and in the presence of counsel, unless the
court, in proper cases, allows the accused to defend himself in person.
(!) The r#.ht to %e 'resent an" "efen" h#mself #n 'erson
an" %y !ounsel at e&ery sta.e of the 'ro!ee"#n.s/ from
arra#.nment to the 'romul.at#on of ,u".ment2
C O M M E N T S
*. The presence of the accused is mandatory only 'a( during his
arraignment and 'b( at the promulgation of judgment. %n between these
stages of the proceedings, if he is at temporary liberty on bail, his
unjustifed absence is deemed a waiver of his right to be present,
provided that he is duly notifed of the trial9 'c( his presence is
necessary when specifcally ordered by the court for purposes
identifcation9 and 'd( when he is a detention prisoner his presence
cannot be dispense with.
-. "fter arraignment where the accused is in custody but escapes,
he shall be deemed to have waived his right to be present in all
subse5uent trial dates until custody over his person is regained.
,. Jhere the failure of the accused to appear at the trial is
without justifable reason, trial in absentia shall proceed.
.. There is no denial of the right to counsel where a counsel de
ofcio is appointed during the absence of accused@s counsel de parte, or
the regular counsel de ofcio pursuant to the court@s desire to fnish the
case as early as practicable under the continuous trial system.
*&:
151
Pe!$le v. Si!ng!, 123 SCRA 501
122
(") The r#.ht to test#fy as a $#tness #n h#s o$n %ehalf but
sub,e!t to !ross4e+am#nat#on on matters !o&ere" %y h#s "#re!t
e+am#nat#on2 -#s s#len!e ho$e&er/ shall not #n any manner
're,u"#!e h#m2
C O M M E N T S
The general rule on cross!e<amination allows a part to cross!
e<amine an adverse witness as to any matter stated in his direct
e<amination or connected therewith with suBcient fullness and
freedom, and to elicit all important facts bearing upon the issues.
'ection : of Rule *,-.(
Aowever, where it is the accused who is testifying in his own
behalf the rule confnes the cross!e<amination only to the facts and
circumstances brought out or connected with the matters stated in his
direct e<amination.
(e) The r#.ht to !onfront an" !ross4e+am#ne the $#tnesses
a.a#nst h#m at the tr#al/ or to ut#l#=e the test#mony of a $#tness
at a former tr#al2
(f) The r#.ht to %e e+em't from %e#n. !om'elle" to %e a
$#tness a.a#nst h#mself2
C O M M E N T S
Aowever, where the cross!e<amination re5uires for the details of
the matters covered by his direct e<amination, the accused cannot hide
behind he shield of self!incrimination even if such details may tend to
incriminate him.
(.) The r#.ht to ha&e !om'ulsory 'ro!ess #ssue" to se!ure
the atten"an!e of $#tnesses an" 'ro"u!t#on of other e&#"en!e
#n h#s %ehalf2
(h) The r#.ht to ha&e s'ee"y/ #m'art#al an" 'u%l#! tr#al2
123
(#) The r#.ht to a''eal #n all !ases allo$e" an" #n the
manner 'res!r#%e" %y la$2
NOTES ON
CRIMINAL PROCEDURE
(Part T$o)
===========================================
===================
Rule 77G 5 ARRAIHNMENT AND PLEA
Const#tut#onal %as#s of th#s Rule
ection *.'-( of "rticle %%%, Cill of Right of the *2/1 Constitution
provides that in all criminal prosecution, the accused shall be informed
of the nature and cause of the accusation against him. This right to be
informed is an integral element of due process that is guaranteed by the
Constitution. This is #nown in procedural law as the process of
arraignment. %t is at this stage where, in the mode and manner re5uired
by the Rules, an accused is granted the opportunity to #now the precise
124
charge that confronts him9 it is at this stage where he is made to be fully
aware of the reasons of his indictment.
*&1
<hat "oes the 'ro!ess of arra#.nment s#.n#fy1
"rraignment is an essential component of due process that calls
for the accused to be fully informed why he is being charged with a
crime, and the nature and cause of the charge, in a mode and manner
re5uired by the Rules of Court. %t is the stage where an accused is
granted in a court of justice to #now formally for the frst time the
precise charge that confronts him.
*&/

<hat are the o%,e!t#&es of arra#.nment1
*. To furnish the accused with such description of the charge
against him to enable him to plan and prepare for his defense9
-. To avail himself of his conviction or ac5uittal for protection
against a second prosecution for the same o;ense9
,. To inform the court of the facts alleged, so that it may decide
whether they are suBcient in law to support a conviction, if one should
be had.
*&2

Section ). ,rrai&nment and plea4 ho. made. " 6a7 The
a!!use" must %e arra#.ne" %efore the !ourt $here the
!om'la#nt or #nformat#on $as :le" or ass#.ne"2 The
arra#.nment shall %e ma"e #n o'en !ourt %y the (u".e or Cler6
%y furn#sh#n. the a!!use" $#th a !o'y of the !om'la#nt or
#nformat#on/ rea"#n. the same #n the lan.ua.e of "#ale!t 6no$n
to h#m an" as6#n. h#m $hether he 'lea"s .u#lty or not .u#lty2
The 'rose!ut#on may !all at the tr#al $#tnesses other than those
name" #n the !om'la#nt or #nformat#on2
(%) The a!!use" must %e 'resent at the arra#.nment an"
must 'ersonally enter h#s 'lea2 Su!h arra#.nment an" 'lea
shall %e ma"e of re!or"/ %ut fa#lure to "o so shall not a0e!t the
&al#"#ty of the 'ro!ee"#n.s2
15%
B!,Fa v. 2en0!3a, %% SCRA 422e0,
158
C,+3, C!n#-i-+-i!nal Law, 200% "0., $$. 335
15&
U.S. v. Ja,el#en, 3 Phil. 223
125
(!) <hen the a!!use" refuses to 'lea" or ma6es a
!on"#t#onal 'lea/ a 'lea of not .u#lty shall %e entere" for h#m2
(") <hen the a!!use" 'lea"s .u#lty %ut 'resents
e+!ul'atory e&#"en!e/ h#s 'lea shall %e "eeme" $#th"ra$n an"
a 'lea of not .u#lty shall %e entere" for h#m2
(e) <hen the a!!use" #n un"er 're&ent#&e "etent#on/ h#s
!ase shall %e raQe" an" #ts re!or"s transm#tte" to the ,u".e to
$hom the !ase $as raQe" $#th#n three (E) "ays from the :l#n.
of the #nformat#on or !om'la#nt2 The a!!use" shall %e arra#.ne"
$#th#n ten (78) "ays from the "ate of the raQe"2 The 're4tr#al
!onferen!e of h#s !ase shall %e hel" $#th#n ten (78) "ays after
arra#.nment2
(f) The 'r#&ate o0en"e" 'arty shall %e re*u#re" to a''ear
at the arra#.nment for 'ur'oses of 'lea %ar.a#n#n./
"eterm#nat#on of !#&#l l#a%#l#ty/ an" other matters re*u#r#n. h#s
'resen!e2 In !ase of fa#lure of the o0en"e" 'arty to a''ear
"es'#te not#!e/ the !ourt may allo$ the a!!use" to enter a 'lea
of .u#lty to a lesser o0ense $h#!h #s ne!essar#ly #n!lu"e" #n the
o0ense !har.e" $#th the !onform#ty of the tr#al 'rose!utor
alone2
(.) Unless a shorter 'er#o" #s 'ro&#"e" %y s'e!#al la$ or
Su'reme Court !#r!ular/ the arra#.nment shall %e hel" $#th#n
th#rty (E8) "ays from the "ate the !ourt a!*u#res ,ur#s"#!t#on
o&er the 'erson of the a!!use"2 The t#me of the 'en"en!y of a
mot#on to *uash or for a %#ll of 'art#!ulars or other !auses
,ust#fy#n. sus'ens#on of the arra#.nment shall %e e+!lu"e" #n
!om'ut#n. the 'er#o"
C O M M E N T S
In the !ourse of the tr#al/ the 'rose!ut#on !alle" Pe"ro
An.eles to the $#tness stan" to test#fy2 The "efense o%,e!te"
on the .roun" that Pe"ro An.eles $as not l#ste" #n the
#nformat#on as one of the $#tnesses $ho $#ll test#fy for the
Peo'le2 Is the o%,e!t#on mer#tor#ous1 <hy1

121
The objection has no merit, because pursuant to the last sentence
of ection *'a( of Rule **:, the prosecution may call at the trial
witnesses other than those named in the complaint or information.
The accused in a criminal case is not entitled to #now in advance
the names of all the witnesses for the prosecution. The time of the
accused to #now them is when they ta#e the witness chair. ection *'a(
of Rule **: permits the prosecution to present an unlisted witness at
the trial.
*:0
<hy #s arra#.nment man"atory1

*. "rraignment is the formal mode and manner of implementing
the constitutional right of an accused to be informed of the nature and
cause of the accusation against him.
-. %t is the process by virtue of which the court ac5uires
jurisdiction over the issue.
-o$ $#ll the 'ro!ee"#n.s %e a0e!te" #f the !om'la#nt or
#nformat#on #s not rea" to the a!!use" #n a "#ale!t or lan.ua.e
6no$n to an" un"erstoo" %y h#m1
The re5uirement that the complaint or information should be read
to the accused in a language or dialect #nown to him at his arraignment
is mandatory. %t must be strictly complied with as it is intended to
protect the constitutional right of the accused to be informed of the
nature and cause of the accusation against him. The constitutional
protection is part of due process. Eailure to observe these re5uirements
necessarily nullifes the arraignment.
*:*
This is on the assumption that
the accused has been arraigned in an irregular manner.
<hat $#ll %e the e0e!t #f tr#al 'ro!ee"s $#thout the
a!!use" ha&#n. %een arra#.ne"1
Jhere the defense counsel proceeded with the trial without
objection that his client has not been arraigned, cross!e<amined the
prosecution@s witnesses, and objected only after the prosecution has
110
7illa!,-a v. 7illa,!#a, ;R 5!. 1341% Se$-. 30, 1&10' Pe!$le v. Ca,+n+ngan, ;R 5. L81328,
Se$-. 30, 1&10
111
Pe!$le v. Ong, e- al., ;R 5!. 13%348, J+ne 21, 2004
12%
rested its case, the upreme Court held that although trial was irregular
and erroneous, the same did not prejudice the rights of the accused,
and considering that defense counsel had full opportunity of cross!
e<amining the witnesses of the prosecution, the error or defect had
been fully cured.
*:-

Aowever, where the defense counsel called the attention of the
trial court about the omission to arraignment the accused, such
omission is a reversible error.
*:,
imilarly, where the o;ense imputed on the accused is a capital
o;ense or an o;ense punishable by reclusion perpetua or life
imprisonment, the irregularity in the arraignment of the accused renders
the proceedings void.
*:.

At the arra#.nment of the a!!use"/ h#s !ounsel a''eare"
an" man#feste" to the !ourt that h#s !l#ent !annot atten" the
'ro!ee"#n. %e!ause he $as !on:ne" #n a hos'#tal "ue to a
ser#ous a#lment/ as e&#"en!e" %y a me"#!al !ert#:!ate2 The
"efense !ounsel/ $#th lea&e of !ourt/ entere" on %ehalf of h#s
!l#ent a 'lea of Mnot .u#ltyN2 <as #t 'ro!e"urally 'ro'er for the
!ourt to allo$ the arra#.nment of the a!!use" #n a-sentia1
<hy1
4o, because pursuant to ection *'b( of Rule **: the accused
must be present at the arraignment, and he must personally enter his
plea.
Su''ose the a!!use" $ho #s out on %a#l refuse" to 'lea"
$hen arra#.ne" "es'#te the ur.#n.s/ $arn#n.s an" threats of
!ontem't %y the !ourt2 E+as'erate" %y the refusals of the
a!!use" to 'lea"/ the ,u".e 'ronoun!e" h#m #n !ontem't of
!ourt/ !an!elle" h#s %a#l/ an" or"ere" h#m !on:ne" #n ,a#l unt#l
he a.rees to 'lea"2 <hat #s your rea!t#on on the a!t#on ta6en
%y the !ourt1
The judge erred in his actions. Jhen the accused refuses to plead
or ma#es a conditional plea at his arraignment, what the court should do
is to enter a plea of not guilty for the accused.
112
Pe!$le v. A-ien3a, e- al., 81 Phil. 5%1' Pe!$le v. Ca)ale, 185 SCRA 140
113
Ca)angangan v. C!ne$i!n, e- al., &5 Phil. 8%
114
Pe!$le v. Alian0!, 251 SCRA 2&3' B!*9in v. Ala)a4a, 3&5 U.S. 238
128
Su''ose Peter Chu $as #n"#!te" for hom#!#"e on a!!ount
of h#s &#olent 6#ll#n. of P#m N.2 <hen arra#.nment Peter Chu
tol" the !ourt/ M@our -onor I shot P#m N. an" 6#lle" h#m/
%e!ause I sa$ h#m ha!6#n. my youn.er %rother $#th a ,un.le
%olo/ %ut fortunately my %rother $as a%le to "o".e e&ery %lo$
of P#m N.2 @our -onor I 'lea" .u#lty to the !har.e a.a#nst me2N
Su''ose you are the ,u".e/ ho$ $#ll you rea!t un"er the
!#r!umstan!es1
% will order the plea of guilty of Peter Chu as withdrawn, and % will
enter a plea of 3not guilty6 for the accused, and set the case for
reception of evidence to prove the e<culpatory facts.
This is based on ection *'d( of Rule **: which provides, 3Jhen
the accused pleads guilt but presents e<culpatory facts, his plea shall be
deemed withdrawn and a plea of not guilty shall be entered for him.6
Su''ose the a!!use" #s !on:ne" #n ,a#l %e!ause he $as
una%le to 'ost %a#l2 Des!r#%e the 'ro!e"ure $h#!h the !ourt
shoul" ta6e on the !ase :le" a.a#nst h#m2
Jhere the accused is under preventive imprisonment, his case
shall be raPed by the RaPe committee and its records transmitted to
the judge to whom the case was raPed within three days from the fling
of the information or complaint. This applies to multi!sala courts9 but in
single!sala court, the records shall be transmitted directly to the judge.
The accused shall be arraigned within ten days from the date of
the raPe or from the date the records were transmitted to the judge in a
single!sala court. The pre!trial shall be held within ten days after his
arraignment.
Is the atten"an!e of the o0en"e" 'arty a man"atory
re*u#rement #n the arra#.nment of the a!!use"/ su!h that the
a%sen!e of the o0en"e" 'arty shall a0e!t the &al#"#ty of the
arra#.nment1
ection *'f( of Rule **: states that the o;ended party should be
notifed of the arraignment of the accused, and the former@s appearance
re5uired for purposes of plea bargaining, determination of the civil
liability, and other matters re5uiring his presence.
12&
Aowever, if the o;ended part fails to appear despite due notice,
the court may allow the accused, upon his motion, to enter a plea of
guilty to a lesser o;ense which is necessarily included in the o;ense
charged, with the conformity of the prosecutor alone.
?nder ection *'g(, unless a shorter period is provided by special
law or by a upreme Court circular, the arraignment of the accused shall
be held within thirty days from the date the court ac5uires jurisdiction
over the person of the accused, that is, from the time the accused was
arrested or he voluntarily appeared and submitted himself to the
jurisdiction of the court. The time during which a motion to 5uash or for
a bill of particulars or other matters justifying suspension of arraignment
is pending shall be e<cluded in the computation of the period.
en Har!#a $as #n"#!te" for mur"er2 <hen arra#.ne" the
a!!use"/ #n the 'resen!e an" $#th the ass#stan!e of !ounsel/
'lea"e" .u#lty2 )orth$#th the !ourt set the !ase for tr#al an"
re*u#re" %oth 'art#es to a""u!e the#r res'e!t#&e e&#"en!e2 At
the !on!lus#on of the tr#al/ the !ourt/ #n #ts a''re!#at#on of the
e&#"en!e/ %el#e&e" that the e&#"en!e of the Peo'le $as
#nsu;!#ent to su''ort a ,u".ment of !on&#!t#on2 -en!e/ the
!ourt a!*u#tte" the a!!use" "es'#te of h#s earl#er 'lea of .u#lty2
<as the !ourt !orre!t #n a!*u#tt#n. the a!!use" not$#thstan"#n.
h#s 'lea of .u#lty entere" earl#er at h#s arra#.nment1
The trial court acted properly. imply because the accused
pleaded guilty of the charge does not follow that conviction shall
automatically be pronounced by the court. The rule is that where the
accused pleaded guilty of the charge, the court may convict him is at
most merely directory. %t will certainly be a clear abuse of discretion on
the part of the judge to convict the accused because of his admission of
guilt and sentence him accordingly when the totality of the evidence
points to his ac5uittal.
*:&

Section 2. +lea of &uilty to a lesser o'ense. - At
arra#.nment/ the a!!use"/ $#th the !onsent of the o0en"e"
'arty an" the 'rose!utor/ may %e allo$e" %y the tr#al !ourt to
'lea" .u#lty to a lesser o0en!e $h#!h #s ne!essar#ly #n!lu"e" #n
the o0ense !har.e"2 After arra#.nment %ut %efore tr#al/ the
115
Pe!$le v. 2en0!3a, 231 SCRA 214
130
a!!use" may st#ll %e allo$e" to 'lea" .u#lty to sa#" lesser
o0ense after $#th"ra$#n. h#s 'lea of not .u#lty2 No amen"ment
of the !om'la#nt or #nformat#on #s ne!essary2
C O M M E N T S
The accused may plea bargain before he enters his plea at the
arraignment, or at the pre!trial, or at the trial before the prosecution
starts presenting it evidence.
In .eneral/ $hat #s the e0e!t of an un!on"#t#onal 'lea of
.u#lty of the o0ense !har.e"1
"s a rule where the accused enters an unconditional plea of guilty
of the o;ense charged, he thereby admits having committed the crime
and all the attending circumstances alleged in the information.
Aowever, a formal plea of guilty is not suBcient to sustain a conviction
of an aggravated crime charged in the indictment. %t happens not
infre5uently that upon arraignment the accused pleads guilty of an
o;ense 5ualifed by aggravating circumstances when in truth his
intention was merely to admit that he committed the act charged in the
information without understanding the aggravating circumstance. %t is
highly unreasonable to e<pect that an accused, untutored in the ways of
our judicial system, would fully comprehend the import and signifcance
of an aggravating circumstance which are many times beyond the
understanding, not only of the illiterates but even those, being
educated, are not lawyers.
*::
Aence, it behooves the trial court to
patiently e<plain to the accused the import and conse5uence of the
presence of any 5ualifying or aggravating circumstance in his admitted
commission of the crime charged in the information.
The .eneral rule announ!e" a%o&e a!!e'ts se&eral
e+!e't#ons/ <hat are these e+!e't#ons2
*. Jhere the plea of guilty was compelled by violence or
intimidation9
111
Pe!$le v. ;+-ie,,e3, ;R 5!. 144&0% H 0&, Se$-. 1%, 2002
131
-. Jhen the accused does not fully understand the meaning and
conse5uence of his plea9
,. Jhere the information is insuBcient to sustain conviction of
the o;ense charged9
.. Jhere the information does not charge an o;ense, conviction
thereunder is void9
*:1
&. Jhere the court has no jurisdiction9
:. Jhere the accused pleads guilty of a capital o;ense, the court
must conduct a searching in5uiry as to the voluntariness and full
comprehension of his plea and shall re5uire the prosecution to prove his
guilt and the precise degree of culpability9 and
1. Jhere the accused pleads guilt to a non!capital o;ense, the
court, at its discretion, may receive evidence from the parties to
determine the penalty to be imposed.
Su''ose "ur#n. h#s arra#.nment for the o0ense of
hom#!#"e/ the a!!use" 'lea"e" .u#lty of the o0ense !har.e"2
ut on mot#on he $as allo$e" %y the !ourt to a""u!e e&#"en!e
to 'ro&e the m#t#.at#n. !#r!umstan!e of #n!om'lete self4
"efense2 -o$e&er/ at the !on!lus#on of the a!!use"Rs
test#mony/ the tr#al !ourt $as !on&#n!e" an" so hel" that the
a!!use" 6#lle" the &#!t#m %e!ause of !om'lete self4"efense2
A!!or"#n.ly/ the tr#al !ourt ren"ere" ,u".ment a!*u#tt#n. the
a!!use"2 )#&e years later the same a!!use" $as #n"#!te" for the
same !r#me !omm#tte" a.a#nst the same &#!t#m2 The a!!use"
mo&e" to *uash the #nformat#on on the .roun" of "ou%le
,eo'ar"y2 If you $ere the ,u".e #n the se!on" !ase/ ho$ $#ll
you resol&e the mot#on1
The motion to 5uash should be denied, because there was no
valid plea made in the frst case, which is an essential element of double
jeopardy. The testimony of the accused that he #illed the victim in self!
defense had the e;ect of vacating his plea of guilty which he entered
when he was arraigned in the frst case. The trial court in that frst case
should have ordered the re!arraignment of the accused in order for him
to enter a plea of not guilty, or at least the court should have entered a
11%
Ca0i4a# v. Di,e-!, !. P,i#!n#, &% Phil. 1&%
132
plea of not guilty for the accused. This, not having been done, there
was no standing plea at the time the frst trial court rendered its
judgment.
*:/
=ne of the essential elements of double jeopardy is valid
arraignment. %n this case, there was none.
Section 3. +lea of &uilty to capital o'ense4 reception of
e/idence. - <hen the a!!use" 'lea"s .u#lty to a !a'#tal o0ense/
the !ourt shall !on"u!t a sear!h#n. #n*u#ry #nto the
&oluntar#ness an" full !om'rehens#on of the !onse*uen!es of
h#s 'lea an" shall re*u#re the 'rose!ut#on to 'ro&e h#s .u#lt an"
the 're!#se "e.ree of !ul'a%#l#ty2 The a!!use" may 'resent
e&#"en!e #n h#s %ehalf2
C O M M E N T S
The rule re*u#res that $hen the a!!use" 'lea"s .u#lty to a
!a'#tal o0ense/ the !ourt shoul" !on"u!t a sear!h#n. #n*u#ry #n
the &oluntar#ness an" full !om'rehens#on %y the a!!use" of the
!onse*uen!e of h#s 'lea2 -o$ #s su!h sear!h#n. #n*u#ry
!on"u!te"1
The is no hard and fast rule how a judge may conducted a
3searching in5uiry6 as to the number and character of 5uestion he may
as# the accused, or the earnestness with which he may conduct it. Fach
case must be measured according to its individual merit. The singular
barometer is that the judge must, in all cases, fully convince himself
that '*( the accused in pleading guilty of the o;ense charged, did so
voluntarily D meaning, he was not coerce or threatened of physical
harm, or placed under a state of duress9 and '-( he is truly guilty on the
basis of his testimony and the other evidence appearing in the
records.
*:2

-o$ #s 'lea of .u#lty "eterm#ne" $hether ma"e
#m'ro&#"ently or not1
"gain, there is not hard and fast rule to determine whether the
plea of guilty of an accused is intelligently or improvidently made. Guch
118
Pe!$le v. Bali#aan, 1% SCRA 111&
11&
Pe!$le v. Segna,, ;R 5!. 133380, Fe). 18, 2004
133
is left to the discretion of the judge. The general practice of courts is to
place the accused on the witness chair and there re5uire him to narrate
the circumstances how he committed the crime charged in the
information. "fterwards, the judge must e<plain to him the possible
conse5uences of his admissions, that is, he could be sentenced to a
prison term which may last his lifetime, and that he could also be
sentenced to pay civil indemnity to the o;ended party. =n top of these,
the court should e<ert earnest e;orts to #now how and why the accused
committed such grave o;ense. %n short, the court should try to be
solicitous to the accused.
tated di;erently, pursuant to ection , of Rule **:, the trial
court cannot simply accept and assume that the accused really
committed the capital o;ense he confessed.
*10
-o$ $#ll you then summar#=e the !ourse of a!t#on $h#!h
the !ourt must 'ursue $here the a!!use" 'lea"s .u#lty of a
!a'#tal o0ense1
*. The Court should place the accused on the witness chair and
e<amine him with searching 5uestions to determine whether his plea of
guilty was voluntarily and intelligently made, and whether he fully
comprehends the conse5uence of his plea9
-. The court should re5uire the accused, as a sound e<ercise of
discretion, to narrate when, where, how and why he committed the
o;ense charged. Possibly, the court should re5uire the accused to re!
enact the commission of the crime imputed on him.
,. The court must re5uire the prosecution to adduce evidence
proving the guilt of the accused and the degree of his culpability.
.. The court should encourage the accused to e<ercise his right to
present evidence his behalf.
*1*

1%0
/)i0.
1%1
Pe!$le v. Be,na#, ;R 5!. 133583 Fe). 20, 2002' Pe!$le v. B!0!#!, ;R 5!. 14&382883,
2a,. 5, 2003
134
Section 4. +lea of &uilty to non-capital o'ense4 9eception
of e/idence: discretionary. - <hen the a!!use" 'lea"s .u#lty to
a non4!a'#tal o0ense/ the !ourt may re!e#&e e&#"en!e from the
'art#es to "eterm#ne the 'enalty to %e #m'ose"2
C O M M E N T S
<hat #s the s#.n#:!an!e of a 'lea of .u#lty entere" %y the
a!!use" at h#s arra#.nment1
Cy his plea of guilty entered by the accused at his arraignment, he
admits the facts set out in the in the information, and if these do not
constitute a crime or a violation of law, such plea does not have the
e;ect of admitting the commission of a crime or violation of law, for
there is none charged in the information. upplying what has been
omitted, or what has been pleaded therein, to correct a defective
information or one that does not alleged facts suBcient to constitute a
public o;ense or a violation of law after the accused has been arraigned
under a defective information, will not cure the defect
*1-
Section 5. Withdra.al of impro/ident plea of &uilty. " At
any t#me %efore the ,u".ment of !on&#!t#on %e!omes :nal/ the
!ourt may 'erm#t an #m'ro&#"ent 'lea of .u#lty to %e $#th"ra$n
an" %e su%st#tute" %y a 'lea of not .u#lty2
C O M M E N T S
May a 'lea of .u#lty %e !ollaterally assa#le"1
%t is settled that a plea of guilty entered by an accused who is fully
aware of the direct conse5uences thereof, as e<plained to him by the
court, the prosecutor and his own defense counsel must stand and
cannot be collaterally attac#ed, unless his plea is induced by threat or
promise to discontinue improper harassment, misrepresentation,
including fulflled or unfulflled promises, or perhaps by promises that
are by their nature improper as having no proper relationship to the
prosecutor@s business, such as bribes.
*1,
1%2
Pe!$le v. 7illa#!, e- al., 8& Phil. 512
1%3

B,a0* v. Uni-e0 S-a-e#, 3&% U.S. %42
135
Aowever, where it is satisfactorily shown to the court that the plea
of guilty was improvidently made, the court, at any time before the
judgment of conviction becomes fnal, may permit the withdrawal of
such plea and substitute it with a plea of not guilty, and proceed with
the trial.
Section . Duty of the court to inform the accused of his
ri&ht to counsel. - efore arra#.nment/ the !ourt shall #nform
the a!!use" of h#s r#.ht to !ounsel an" as6 h#m #f he "es#res to
ha&e one2 Unless the a!!use" #s allo$e" to "efen" h#mself #n
'erson or has em'loye" !ounsel of h#s !ho#!e/ the !ourt must
ass#.n a !ounsel de ofcio to "efen" h#m2
C O M M E N T S
The four fol" "uty of the !ourt un"er th#s se!t#on of the
Rule3
Jhere the accused appears without counsel, the court must
perform the following indispensable duties+ '*( it must inform the
accused that it is his right to have and to be assisted by counsel before
he is arraigned9 '-( thereafter, the court must as# him if he desires to
be assisted by counsel9 ',( if he so desires but is unable to employ
counsel of his own choice, the court must assign a counsel de ofcio to
assist and defend him9 '.( if the accused desires to procure a counsel of
his choice, the court must grant him a reasonable time to enter the
appearance of his counsel de parte.
1()

Section #. ,ppointment of counsel de ofcio. " The !ourt/
!ons#"er#n. the .ra&#ty of the o0ense an" the "#;!ulty of the
*uest#on that may ar#se/ shall 'o#nt as !ounsel de ofcio su!h
mem%ers of the %ar #n .oo" stan"#n. $ho/ %y reason of the#r
e+'er#en!e an" a%#l#ty !an !om'etently "efen" the a!!use"2
ut #n lo!al#t#es $here su!h mem%ers of the %ar are not
a&a#la%le/ the !ourt may a''o#nt any 'erson/ res#"ent of the
'ro&#n!e an" of .oo" re'ute for 'ro%#ty an" a%#l#ty/ to "efen"
the a!!use"2
C O M M E N T S
1%4
Pe!$le v. 6!lga0!, 85 Phil. %52
131
H#&e the reasons $hy the ass#stan!e of "efense !ounsel #s
of .reat #m'ortan!e #n e&ery !r#m#nal 'ro!ee"#n.2
=ne of the constitutional and procedural rights of an accused is
the right to be heard and defend himself in person or by counsel. The
assistance of defense counsel is an integral element both of the
constitutional and procedural due process. imply because the accused
is highly learned in some other discipline, e<cept in law, will not
automatically 5ualify him to be heard and defend himself without legal
assistance. Court procedure re5uires a highly technical s#ill such that if
handled by one who has no proper training therefor might result in a
miscarriage of justice.
Aowever, the right of the accused to defend himself personally
and without the aid of counsel is largely dependent upon the discretion
of the court. Fven if in the mind of the court the accused is ade5uately
5ualifed to underta#e his defense by himself, still its frst act before
arraignment is to advise the accused of his right to counsel and as# him
if he desires to have one. "nd unless the court allows him to defend
himself in person or else he has already employed a counsel of his
choice, the court must assign a counsel de ofcio to handle his defense.
=n the hand, if it appears at his arraignment that the accused is
without counsel but e<press his desire to be assisted by counsel of his
choice, the court should give him reasonable time, usually thirty ',0(
days, to engage the services of a lawyer and to enter his appearance in
the case.
Cut should the accused e<press his inability to secure the
professional services of a counsel de ofcio due to poverty, and
considering the gravity of the o;ense charged and the diBculty of the
issues that may be raised, the court must appoint a counsel de ofcio
from the members of the bar who is in good standing and who by reason
of his e<perience and ability can competently defend the accused.
4onetheless, if in the localities where such members of the bar are not
available, the court may appoint any person, resident of the province
and of good repute for probity and ability, to defend the accused.
The court may designate a counsel de ofcio from the Public
"ttorneys =Bce, or from the legal aid of the local %CP chapter, or from
the legal aid of the local government, or from any law frm e<tending
legal assistance to indigents.
13%
Su''ose %efore arra#.nment $here the a!!use" a''eare"
$#thout !ounsel the !ourt #n*u#re" $hat #s h#s "es#re/ that #s/ #f
he $ante" to %e "efen"e" %y !ounsel of h#s !ho#!e or %y a !ourt
"es#.nate" !ounsel2 The a!!use" o'te" for a !ounsel of h#s
!ho#!e2 So the !ourt .rante" h#m th#rty (E8) "ays to en.a.e the
'rofess#onal ser&#!es of a !ounsel de parte 2 -o$e&er/ at the
follo$#n. sett#n. of the !ase/ the a!!use" st#ll a''eare"
$#thout !ounsel2 So the !ourt/ u'on re*uest of the a!!use"/
.rante" h#m another th#rty (E8) "ays to enter the a''earan!e of
!ounsel of h#s !ho#!e an" the reset h#s arra#.nment2 ut at the
ne+t sett#n. the a!!use" a.a#n a''eare" $#thout !ounsel2 -e
as6e" for more t#me to se!ure the ser&#!es of !ounsel de parte.
If you $ere the ,u".e/ ho$ $#ll you 'ro!ee" un"er these
!#r!umstan!es1
The court should designate a counsel de ofcio to assist the
accused in the proceedings until he enters the appearance of a counsel
de parte. The court should not allow the accused to control the progress
of the criminal action, which is obvious from his acts and omissions.
Fvidently, the ploy of the accused is to delay the proceedings.
Su''ose the a!!use" $#th h#s full 6no$le".e an" !onsent
entere" the a''earan!e as "efense !ounsel someone $ho #s not
a mem%er of the %ar2 -o$e&er/ #t $as not 6no$n to the !ourt
that the "efense !ounsels #s a non4meme%er of the ar2 The
a!!use" after tr#al $as !on&#!te"2 In h#s mot#on for
re!ons#"erat#on the a!!use" a&erre" that he $as #m'ro'erly
!on&#!te" %e!ause he $as not ass#ste" %y a !om'etent !ounsel2
<as the !ontent#on of the a!!use" mer#tor#ous1 <hy1
ince the accused is aware that his counsel is a non!lawyer and he
consented to his appearance in the case to handle his defense, none of
his substantial rights has been violated, as he was aware of the fact
that his defense was being underta#en by a non!member of the bar and
he proceed with his case without any objection. The fact that he was
represented, of his own choice, by a person who is not a Car member
will not relieve him of the adverse e;ect of his voluntary act and deed.
The irregularity was his own ma#ing, which did not prejudice him.
*1&


ut su''ose the a!!use" $as not a$are that the 'erson
$hom he an.a.e" to "efen" h#m #n the !r#m#nal !ase :le"
a.a#nst h#m $as not a mem%er of the ar an" $as an #m'ostor
1%5
U.S. v. Ca$a an0 Ca,ini!, 1& Phil. 125
138
'reten"#n. to %e a la$yer2 The a!!use" learne" of th#s fa!t after
he $as !on&#!te"2 May the a!!use" assa#l h#s !on&#!t#on on the
.roun" that he $as "en#e" of h#s r#.ht to !ounsel1
Jhere the accused learned for the frst time after his conviction
that the person who represented him in the criminal proceedings is not
a member of the Philippine Car, all the proceedings ta#en in the criminal
case were null and void, because the accused was deprived of his
constitutional and procedural right to be defended by a competent
counsel. ?nless the accused is duly represented by a member of the
Car, there is the great ris# that he might not be defended ade5uately in
the criminal proceedings against him, considering the legal pre!
re5uisites and s#ills needed in court proceedings. uch amounted to a
denial of due process.
*1:
Section %. Time for counsel de ofcio to prepare for
arrai&nment.- <hene&er a !ounsel de ofcio #s a''o#nte" %y the
!ourt to "efen" the a!!use" at the arra#.nment/ he shall %e
.#&en a reasona%le t#me to !onsult $#th the a!!use" as to h#s
'lea %efore 'ro!ee"#n. $#th the arra#.nment2
Section (: ?ill of particulars. - The a!!use" may/ %efore
arra#.nment/ mo&e for a %#ll of 'art#!ulars to ena%le h#m
'ro'erly to 'lea" an" 're'are for tr#al2 The mot#on shall s'e!#fy
the alle.e" "efe!ts of the !om'la#nt or #nformat#on an" the
"eta#ls "es#re"2
C O M M E N T S
e!ause the #nformat#on :le #n !ourt a''ears &a.ue an"
.eneral #n #ts alle.at#ons/ the a!!use" !oul" not :.ure out the
nature an" the !ause of the a!!usat#on a.a#nst h#m/ so he
mo&e" to *uash the sa#" #nformat#on on the .roun" that the
same "oes not !har.e any o0ense2 Is the reme"y ta6en %y the
a!!use" the 'ro'er reme"y un"er the !#r!umstan!es1
4o, because his proper remedy is to move for a bill of particulars.
The motion should be fled before arraignment. Eailure to as# for a bill
of particulars amounts to a waiver of the right.
1%1
Delga0! v. C!+,- !. A$$eal#, 145 SCRA 35%
13&
%nasmuch as in criminal cases the liberty of the accused is at
sta#e, it is always wise and proper that accused should be fully
appraised of the true nature and cause of the charges against him, and
hence avoid all and any possible surprise, which might be detrimental to
his rights and interests. "mbiguous phrases should not, therefore, be
permitted in criminal complaints or information. Conse5uently, if any
such phrase is included therein, on motion of the defense, before the
commencement of the trial, the court should order either its elimination
as surplusage or the fling of the necessary specifcation which is but an
amendment in mere matters of form.
*11

Section )*. Production or Inspection of >aterial 0/#"ence in
+ossession of +rosecution2 4 U'on mot#on of the a!!use"
sho$#n. .oo" !ause an" not#!e to the 'art#es/ the !ourt/ #n
or"er to 're&ent sur'r#se/ su''ress#on/ or alterat#on/ may or"er
the 'rose!ut#on to 'ro"u!e an" 'erm#t the #ns'e!t#on an"
!o'y#n. or 'hoto.ra'h#n. of any $r#tten statement .#&en %y the
!om'la#nant an" other $#tnesses #n any #n&est#.at#on of the
o0ense !on"u!te" %y the 'rose!ut#on or other #n&est#.at#n.
o;!ers/ as $ell as any "es#.nate" "o!ument/ 'a'ers/ %oo6s/
a!!ounts/ letters/ 'hoto.ra'hs/ o%,e!ts or tan.#%le th#n.s not
other$#se 'r#&#le.e"/ $h#!h !onst#tute or !onta#n e&#"en!e
mater#al to any matter #n&ol&e" #n the !ase an" $h#!h are #n
the 'ossess#on or un"er the !ontrol of the 'rose!ut#on/ 'ol#!e/
or other la$ #n&est#.at#n. a.en!#es2
C O M M E N T S
The right of the accused to the production or inspection of
material evidence in the possession of the prosecution applies when the
court orders the conduct of preliminary investigation, or when the
criminal case is fled without such investigation where one is re5uired,
or where the court orders a re!investigation.
Su''ose the 'rel#m#nary #n&est#.at#on #s st#ll %e#n.
!on"u!te" #n the 'rose!utorRs o;!e/ #n $hat !ourt shoul" the
mot#on for 'ro"u!t#on or #ns'e!t#on of mater#al e&#"en!e %e
:le"/ #f the 'rose!utor refuses to 'ro"u!e or the #ns'e!t#on of
su!h "o!ument1
1%%
Pe!$le v. A)a0 San-!#, %1 Phil. %44
140

The remedy would seem for the accused to fle in the proper court
the appropriate special civil action, in case the prosecution refuses to
produce for inspection material evidence in its possession.
%n the case of Jebb vs. 7e Leon,
*1/
the upreme Court held that
an accused is entitled during preliminary investigation to discovery
procedure. Jhile recogni)ing the absence of any provision in the Rules
on Criminal Procedure for discovery proceedings during preliminary
investigation, the court held that such omission does not, however,
negate its use by a person under investigation when indispensable to
protect his constitutional right to life, liberty and property. Preliminary
investigation is not a too early stage to guard against signifcant erosion
of the constitutional right to due process of a potential accused and to
uphold the legal basis of his right to demand from his prosecutor ! the
4C% ! the original copy of the sworn statements, considering their
e<culpatory character, and hence, of their un5uestionable materiality to
the issue of his probable guilt.
Section )). Suspension of ,rrai&nment. - U'on mot#on %y
the 'ro'er 'arty/ the arra#.nment shall %e sus'en"e" #n he
follo$#n. !ases3
(a) The a!!use" a''ears to %e su0er#n. from an unsoun"
mental !on"#t#on $h#!h e0e!t#&ely ren"ers h#m una%le to fully
un"erstan" he !har.e a.a#nst h#m an" to 'lea" #ntell#.ently
thereto2 In su!h !ase/ the !ourt shall or"er h#s mental
e+am#nat#on an"/ #f ne!essary/ h#s !on:nement for su!h
'ur'oseA
(%) There e+#st a 're,u"#!#al *uest#onA an"
(!) A 'et#t#on for re&#e$ of the resolut#on of the
'rose!utor #s 'en"#n. at e#ther the De'artment of (ust#!e or the
O;!e of the Pres#"entA +ro/ided: That the 'er#o" of sus'ens#on
shall not e+!ee" s#+ty (G8) "ays !ounte" from the :l#n. of the
'et#t#on $#th the re&#e$#n. o;!e2
C O M M E N T S
1%8
4% SCRA 153
141
*. "n insane person is e<empt from criminal liability unless it is
shown that he was in lucid interval when he committed the act.
*12
Aence, it is the duty of the trial court to cause the e<amination of the
mental condition of the accused. %f it is established that he is laboring
under a condition of insanity such that he ought not to be brought to
trial, the court should hold the criminal proceedings in abeyance and to
commit him to any asylum or hospital for the insane.
-. "s to prejudicial 5uestion, see discussions in ection : and 1 of
Rule ***.
,. ?nder letter 'c( of this section of Rule **:, the period of
suspension shall not e<ceed si<ty ':0( days counted from the fling of
the petition with the reviewing oBce. "fter the e<piration of said period,
the trial court is bound and has the authority to proceed with the
arraignment of the accused or deny his motion to defer arraignment.
*/0
1%&
A,-. 12D1E, Revi#e0 Penal C!0e
180
Sa4#!n v. Dawa*, ;R 5!#. 110054855, J+l* 21, 2004
142
Rule 77> 5 Mot#on to ?uash
Section ). Time to mo/e to 3uash. - At any t#me %efore
enter#n. h#s 'lea/ the a!!use" may mo&e to *uash the !om'la#nt
or #nformat#on2
C O M M E N T S
<hat #s a mot#on to *uash1
" motion to 5uash is the remedy available to the accused to see#
the nullifcation or setting aside of the indictment on the grounds
specifed by law. %t is the counter!part of a motion to dismiss in civil
cases.
.
The upreme Court defnes a motion to 5uash an information as
the mode by which an accused assails the validity of a criminal
complaint of information fled against him for insuBciency on its face in
point of law, or for defects which are apparent in the face of the
information.
*/*

Section 2. Borm and contents. " The mot#on to *uash shall
%e #n $r#t#n./ s#.ne" %y the a!!use" or h#s !ounsel an" shall
"#st#n!tly s'e!#fy #ts fa!tual an" le.al .roun"s2 The !ourt shall
!ons#"er no .roun" other than those state" #n the mot#on/
e+!e't la!6 of ,ur#s"#!t#on o&er the o0ense !har.e"2
181
An-!ne v. Be,!nilla, 13% SCRA 115
143
C O M M E N T S
Jhen a motion to 5uash a complaint or information, whether upon
one ground or another, it should set out distinctly the grounds, that is,
the facts and the law, upon which the objection is based. %t cannot be
couched simply upon the words of the Rule. %t is not fair to the
prosecution or to the court to interpose an objection simply that the
complaint or information does not state facts suBcient to constitute an
o;ense. %t must state the reasons to sustain such ground. 4either the
prosecution nor the court should be left to ma#e a long and tiresome
investigation to discern or guess the ground of the objection. The
grounds of objection should be made clear for everyone to see. %ts
purpose was to clarify all ambiguities9 to ma#e certain all indefnite
assertions9 to ma#e the prosecution e<press clearly the o;ense it
wishes to prosecute the accused9 to promote understanding and avoid
surprises. To attain this objective, the motion to 5uash should be clear,
specifc, defnite and certain as to the precise wea#ness of the
complaint or information.
*/-

-o$ $oul" the !r#m#nal a!t#on %e a0e!t #f the a!!use" fa#ls
to mo&e to *uash the #nformat#on or !om'la#nt %efore h#s
arra#.nment or to alle.e any .roun"s thereof1
The failure of the accused to assert any of the grounds of a motion
to 5uash before he pleads to the complaint or information, either
because he did not fle a motion to 5uash or failed to allege any of those
grounds in the motion, shall be deemed a waiver of those grounds,
e<cept '*( that no o;ense has been alleged in the complaint or
information, '-( that the court has no jurisdiction over the o;ense
charged, ',( that the criminal action or liability has been e<tinguished,
and '.( that the mantle of double jeopardy has set in. 'ection 2, Rule
**1.(
Su''ose at h#s arra#.nment %efore he enters h#s 'lea/ the
a!!use" orally mo&e" to *uash the #nformat#on on one of the
.roun"s 'ro&#"e" #n the Rules2 The !ourt "en#e" the oral mot#on
an" or"ere" the a!!use" arra#.ne" an" re*u#re" h#m to enter
h#s 'lea2 The a!!use"/ ho$e&er/ refuse" to 'lea"/ for $h#!h
reason the !ourt or"ere" h#s arra#.nment/ entere" a 'lea of not
182
Li3a,,aga 6e,4ana# v. @a$ (i!, 24 Phil. 504
144
.u#lty for an" #n h#s %ehalf an" 'ro!ee"e" $#th the 're4tr#al an"
tr#al on the mer#ts2 D#" the !ourt a!t 'ro'erly1
"lthough the oral move of the accused to 5uash the information
was unprocedural, because it was not in writing, such oral motion to
5uash presented in open court before arraignment is not necessarily
void or ineBcacious. Jhat the court should have done is to re5uire the
accused to reduce in writing his oral motion to 5uash, under such terms
and conditions as the court may impose.
*/,
May the a!!use"/ after he 'lea"e"/ %e alo$e" to $#th"ra$
h#s 'lea to ena%le h#m to :le a mot#on to *uash1
"fter the accused has already pleaded, it is discretionary on the
part of the court to permit him to withdraw such plea in order for him to
fle a motion to 5uash.
*/.

Section 4. @rounds. " The a!!use" may mo&e to *uash the
!om'la#nt or #nformat#on on any of the follo$#n. .roun"s3
(a) That the fa!ts !har.e" "o not !onst#tute an o0enseA
(%) That the !ourt try#n. the !ase has no ,ur#s"#!t#on o&er
the o0ense !har.e"A
(!) That the !ourt try#n. the !ase has no ,ur#s"#!t#on o&er
the 'erson of the a!!use"A
(") That the o;!er $ho :le" the #nformat#on ha" no
author#ty to "o soA
(e) That #t "oes not !onform su%stant#ally to the
'res!r#%e" formA
(f) That more than one o0ense #s !har.e" e+!e't $hen a
s#n.le 'un#shment for &ar#ous o0enses #s 'res!r#%e" %y la$A
(.) That the !r#m#nal a!t#on or l#a%#l#ty has %een
e+t#n.u#she"A
183
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
Rev. "0., $$. 4%&
184
2ill v. Pe!$le, e- al., 101 Phil. 5&&
145
(h) That #t !onta#ns a&erments $h#!h/ #f true/ $oul"
!onst#tute a le.al e+!use or ,ust#:!at#onA an"
(#) That the a!!use" has %een 're&#ously !on&#!te" or
a!*u#tte" of the o0ense !har.e"/ or the !ase a.a#nst h#m $as
"#sm#ss or other$#se term#nate" $#thout h#s e+'ress !onsent2
C O M M E N T S
*. The #nformat#on !har.es no o0ense2 4 %n a criminal case,
the prosecution must allege in the complaint or information all the
component elements of the o;ense with which the accused is charged.
ection 2 of Rule **0 re5uires that the acts or omissions complained of
as constituting the o;ense imputed on the accused must be stated in
ordinary and concise language. %f the complaint or information omits to
allege even just one of the elements of the o;ense charged, such
omission may be a ground for the 5uashing the complaint or
information, since such complaint or information charges no crime.
Su''ose the a!!use" mo&e" to *uash the #nformat#on on
the .roun"s3 (a) the a!ts !har.e" "o not !onst#tute an o0enseA
(%) the sa#" #nformat#on "oes not !onform su%stant#ally $#th the
'res!r#%e" formA an" (!) more than one o0ense has %een
!har.e" an" ea!h o0ense #s 'enal#=e $#th "#0erent 'enalt#es2
A!t#n. on the mot#on to *uash the !ourt "#sm#sse" the !r#m#nal
a!t#on2 <as the !ourt !orre!t #n #ts a!t#on1
4o. ection . of Rule **1 e<plicitly provides that if the motion to
5uash is based on an alleged defect of the complaint or information
which can be cured by amendment, the court shall order that an
amendment be made.
The said section provides further that if it is based on the ground
that the facts charged do not constitute an o;ense, the prosecution
shall be given by the court an opportunity to correct the defect by
amendment. The motion shall be granted only if the prosecution fails to
ma#e the amendment, or the complaint or information still su;ers from
the same defect despite the amendment.

141
The three defects pointed out by the accused in his motion to
5uash can be cured by amendments. Aence, the initial action which
the court should have ta#en was to re5uire the prosecution to
amendment the information within a certain period f<ed by the court. %f
the prosecution does not comply, then the court has the authority to
dismiss the criminal action.
<hat #s the test to "eterm#ne #f the fa!ts !har.e"
!onst#tute an o0ense1
The test to determine whether the facts constitute an o;ense is
focused on the suBciency of the averments in the information, that is,
whether the facts alleged, if hypothetically admitted, constitute the
elements of the o;ense. Gatters aliunde will not be considered.
*/&
-. The !ourt has no ,ur#s"#!t#on o&er the o0ense2 4
>urisdiction of the court over the o;ense charged is determined by law9
by the territory where the crime was committed9 by the facts set out in
the complaint or information9 and the punishment provided by law.
%t is fundamental that in order jurisdiction may be ac5uired by the
courts in criminal cases, the o;ense or any of its essential ingredients
too# place within the territorial limits where the court e<ercises its
jurisdiction. Territorial jurisdiction in criminal cases refers to the
territory where the court has jurisdiction to ta#e cogni)ance of the
o;ense allegedly committed by the accused.
*/:

%t is also fundamental that the court should e<amine the
allegations of the complaint or information for the purpose of
ascertaining whether or not the facts set out and the punishment
provided by law for the o;ense falls within the jurisdiction of the court.
Aowever, it may happen that the information charges the accused with
an o;ense punishable by a penalty which is within the jurisdiction of the
Regional Trial Court to impose, but at the close of the trial, the court
fnds that the crime committed is punished with a penalty which is
within the jurisdiction of the frst level court to impose. %n that case the
RTC still retains jurisdiction to impose the penalty prescribed by the law
for the crime proved to have been committed.
*/1

185
Pe!$le v. S+$na0, ;R 5!. L818%4, 2a,h 30, 1&13
181
U* v. C!+,- !. A$$eal#, 2%1 SCRA 31%
18%
US. v. 2alla,i, 24 Phil. 311
14%
,. >urisdiction over the person of the accused is ac5uired by the
court by his arrest, or by his voluntary appearance and submission of his
person to the authority of the court.
Lac# of jurisdiction over the o;ense charged and lac# of
jurisdiction over the person of the accused are two grounds of a motion
to 5uash which are distinct and di;erent from each other. Lac# of
jurisdiction of the o;ense e<ists as a matter of law. The same cannot be
conferred or waived by consent, estoppel or inaction. This ground may
be raised at any time, even for the frst time on appeal.
Lac# of jurisdiction over the person of the accused is ac5uired by
the court by his lawful arrest or voluntary appearance. This lac# of
jurisdiction over the person of the accused may be waived by consent,
estoppel, silence, or inaction. %t cannot be raised for the frst time on
appeal. %t can be cured by subse5uent act of the court. Eor instance, an
accused who has been unlawfully arrested raises such issue in his
motion to 5uash, all that the court may do is to issue a valid warrant of
arrest accompanied by an order of commitment.
Su''ose the a!!use" #s #lle.ally arreste"2 So/ %efore
arra#.nment/ he mo&e to *uash the #nformat#on on the .roun"
that the !ourt has not a!*u#re" ,ur#s"#!t#on o&er h#s 'erson2 In
the same mot#on/ he further a&erre" that the o;!er $ho :le"
the #nformat#on has no author#ty to "o so2 If you $ere the tr#al
,u".e $oul" you susta#n the mot#on an" "#sm#ss the !r#m#nal
a!t#on1
$iew of >ustice Regalado. ! The accused may move to 5uash for
lac# of jurisdiction over his person, but he must do so only on that
ground and for that purpose. %f, having raised such ground, he
nevertheless raises other grounds for a motion to 5uash, he is deemed
to have submitted his person to the jurisdiction of the court.
*//


$iew of >ustice Aerrera. D %t may, however, be noted that ection
-0, Rule *. of the *221 Rules of Civil Procedure has abandoned previous
rulings of the upreme Court to the e;ect that now a motion to dismiss
based on the ground of lac# of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance if joined with
other grounds. "ccording to >ustice Aerrera, under the present rule, the
inclusion in a motion to dismiss on other grounds aside from lac# of
jurisdiction over the person of the defendant shall not be considered as
188
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
"0., $$. 482, i-ing Sanhe3 v.
De4e-,i+#, e-., e- al., 22% SCRA 12%
148
a voluntary appearance.
*/2
>ustice Aerrera applies by analogy the Rule
in Civil Procedure to Criminal Procedure.
F2 Author#ty to :le #nformat#on2 4 "n information subscribed
and sworn by a person without authority to fle the information, is an
invalid information. "n invalid information is no information at all and
cannot be the basis for criminal proceedings. The defect cannot be
cured.
*20
" prosecutor has no authority to fle an information for a
crime committed outside of his territorial jurisdiction.
Su''ose" the #nformat#on $as su%s!r#%e"/ s$orn an" :le"
%y a 'rose!utor $hose a''o#ntment $as su%se*uently null#:e"/
%e!ause of !erta#n "efe!ts #n h#s a''o#ntment2 -o$ $#ll the
su%se*uent null#:!at#on of su!h a''o#ntment a0e!t the &al#"#ty
of the #nformat#on an" the 'lea of the a!!use" un"er su!h
#nformat#on1
"ssuming that the prosecutor 5ualifes as a de facto oBcer, the
defects which attended his appointment and its subse5uent nullifcation
does not necessarily invalidate the information and the plea thereunder
of the accused, unless the person who subscribed and swore on such
information is dis5ualifed from being appointed to the oBce of the
prosecutor, li#e for e<ample, one who is not a member of the Car.
Cecause then, the information is invalid and the court did not ac5uire
jurisdiction over the case.
*2*
"n information fled by a 5ualifed and
authori)ed oBcer is re5uired for the court to ac5uire jurisdiction over
the case.
*2-

Su''ose" the #nformat#on $as su%s!r#%e" an" s#.ne" %y a
'erson $ho #s "#s*ual#:e" an" $#thout author#ty to "o so/ %ut
the a!!use"/ $hen arra#.ne"/ "#" not o%,e!t an" entere" a
'lea of not .u#lty2 <hen the #ssue of $ant of author#ty of the
'erson $ho :le" the #nformat#on $as ra#se"/ the tr#al
'rose!utor ar.ue" that the arra#.nment of the a!!use" an" h#s
enter#n. h#s 'lea has !ure" the "efe!t2 Is the !ontent#on of the
'rose!utor tena%le1 <hy1
The infrmity in such information cannot be cured by silence,
ac5uiescent or even by e<press consent of the accused. "n information
18&
6e,,e,a, Re4e0ial Law, 7!l. /7, 200% "0.$$. 153
1&0
R!4+al0e3 v. San0igan)a*an, 385 SCRA 431
1&1
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
Rev. "0., $$. 483
1&2
7illa v. /)ane3, e- al., 88 Phil. 402
14&
signed by a 5ualifed and authori)ed oBcer is what invest the court
with jurisdiction to ta#e cogni)ance of the case.
K2 The #nformat#on "oes not !onform $#th the 'res!r#%ed
form2 The defects contemplated under this ground are defects in form,
as where the re5uirements for the suBciency of the information as
prescribed under ection : of Rule **0 are not complied with. They are
deemed waived if not objected to in a motion to 5uash, or else they are
curable by amendment.
*2,

G2 More than one o0ense #s !har.e"2 4 Gultiplicity of charges
in a single information is prohibited in this jurisdiction to protect the
accused from confusion and diBculty in ma#ing his defense. The
accused, however, may waive such objection and can be convicted of as
many distinct charges as are alleged in the information or are proved at
the trial.
*2.
Eor e<ample, a step father raped his step daughter ten times. Ten
complaints or information for each count must be fled. %f the step father
is charged with ten counts of rape in just one complaint or information,
he should, before entering his plea at the arraignment, move to 5uash
the complaint or information on the ground of multiplicity of charges.
Eailure to do so is considered a waiver and the court can convict him for
as many rapes as are duly proved.
*2&

F<cepted from this rule are comple< or composite crimes under
"rticle ./ of the Revised Penal Code and special laws wherein a single
penalty is imposed for various o;enses.
>2E+t#n!t#on of !r#m#nal l#a%#l#ty2 D Pursuant to "rticle /2 of the
Revised Penal Code criminal action or liability is deemed totally
e<tinguished+
a. Cy the death of the accused or convict before or after fnal
judgment, because one of the juridical conditions of penalty is that it is
personal9
*2:

1&3
Regala0!, !$ i-., $$. 484
1&4
Pe!$le v. 2angaa4$!, && Phil. ' Pe!$le v. C!n-e, 24% SCRA 583
1&5
Pe!$le v. C!n-e, i)i0.
1&1
Re*e#, Revi#e0 Penal C!0e, B!!9 1, 2001 "0. $$. 841
150
b. Cy amnesty which completely e<tinguishes the penalty and all
its e;ects9
c. Cy service of sentence9
d. Cy absolute pardon9
e. Cy prescription of crime D The tate loses its right to prosecute
the o;ender after the lapse of a certain length of time9
*21

f. Cy marriage of the o;ended party with the o;ender as provided
in "rticle ,.. of the Revised Penal Code.
(L)2 <hat are the le.al ,ust#:!at#ons $h#!h #f true $oul"
!onst#tute a le.al e+!use to $arrant the *uashal of the
!om'la#nt or #nformat#on1
The legal e<cuse or justifcation referred to by this ground of a
motion to 5uash are those provided in the Revised Penal Code as
justifying circumstances '"rt. **(, e<empting circumstances '"rt. *-(,
and absolutory causes '"rts. ,, *:, -0, -.1, and ,,-(.
Aowever, these circumstances must be alleged and must appear
on the face of the complaint or information, otherwise they become
matters of defense, which must be prove by clear evidence.
<here the .roun" of the mot#on to *uash #s that the
!om'la#nt or #nformat#on !onta#ns a&erments $h#!h/ #f true/
$oul" !onst#tute a le.al e+!use or ,ust#:!at#on/ #s #t ne!essary
for the a!!use" to 'ro&e the truth of su!h le.al e+!use or
,ust#:!at#on %y sol#" e&#"en!e1
%t would seem that at frst glance the accused has the burden of
proving the truth of such legal e<cuse or justifcation with concrete
evidence, because of the phrase 3if true6 referring to the averments as
its antecedent. Aowever, considering the settled rule on judicial
admissions, it is believed that it is not for the accused to submit
evidence to prove such averments. The legal e<cuse or justifcation
appearing on the face of the complaint or information is a conclusive
judicial admission by the prosecution as to the truth of such legal
1&%
Re*e #, /)i0..
151
e<cuse or justifcation. %t is a basic rule that the allegations in pleadings
are conclusive upon the pleader and cannot be contradicted unless
shown that the same has been made through palpable mista#e, and the
party who should demonstrate such palpable mista#e is the prosecution.
B2 Dou%le (eo'ar"y2 The last ground of a motion to 5uash
under letter 'i( of ection , should be read with ection 1 of this Rule on
double jeopardy.
To be a ground of a motion to 5uash, the following re5uisites must
concur+
*. The complaint or information should be suBcient in form and
substance to sustain a conviction9
-. The court had jurisdiction9
,. The accused had been arraigned and had pleaded9
.. Ae was convicted or ac5uitted, or else the case was dismissed
without the e<pressed consent of the accused9
&. The second prosecution is for+
a. the same o;ense, or
b. an attempt to commit the said o;ense, or
c. a frustration of the said o;ense, or
d. an o;ense which necessarily includes or is necessarily
included
in the frst o;ense charged.
*2/
%f all these factors are present, the frst prosecution will constitute
a bar to the second prosecution.
Section . 5rder sustainin& the motion to 3uash not a -ar
to another prosecution4 e;ception. - An or"er susta#n#n. the
mot#on to *uash #s not a %ar to the 'rose!ut#on for the same
o0ense unless the mot#on $as %ase" on the .roun"s s'e!#:e"
#n Se!t#on E(.) an" (#) of th#s rule2
1&8
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2. 10
-h
"0., $$. 4&1
152
C O M E N T S
ection , paragraph 'g( refers to e<tinction of the criminal action
or liability, while paragraph 'g( refers to double jeopardy.
-o$ $#ll the !r#m#nal a!t#on %e a0e!te" #f the mot#on to
*uash #s susta#ne"1
%t defends on whether the defect is curable by amendment or not.
%f the defect of the complaint or information can be cured by
amendment, the court shall order that the proper amendment be made.
%f the defect is that the facts do not constitute an o;ense, the court shall
give the prosecution the opportunity to correct the defect by
amendment.
Aowever, where any form of correction will not cure the defect,
the court shall order the complaint or information dismissed without
prejudice to the fling of the correct information within the period f<ed
by the court. Geanwhile, if the accused is in custody, he shall not be
discharged from confnement, unless he is admitted to bail. This is in
view of the fact that ection & of this Rule contemplates the situation
where the information is not curable by amendment.
%f the motion to 5uash is sustained on the ground that '*( the
criminal action or liability has been e<tinguished, or '-( it would result in
double jeopardy, there can be no further prosecution.
*22
<hat #s the reme"y of the a!!use" #f h#s mot#on to *uash
#s "en#e" %y the !ourt %ut he %el#e&es that the "en#al of h#s
mot#on #s erroneous1
"n order denying a motion to 5uash is interlocutory and,
therefore, not appealable. Cut where the ground of the motion to 5uash
clearly appears from the records, as where double jeopardy has been
clearly established by the accused, he may avail the remedy of
certiorari and prohibition, as appeal would not be an ade5uate
remedy.
-00

Section #. Bormer con/iction or ac3uittal4 dou-le
2eopardy. - <hen an a!!use" has %een !on&#!te" or a!*u#tte"/
or the !ase a.a#nst h#m "#sm#sse" or other$#se term#nate"
1&&
Regal0!, /)i0., $$. 48&
200
2en0!3a v. Al4e0a8L!$e3, 14 Phil. 820' Pe!$le v. Ra4!#, ;R 5!. L825215, 2a* &, 1&%8
153
$#thout h#s e+'ress !onsent %y a !ourt of !om'etent
,ur#s"#!t#on/ u'on a &al#" !om'la#nt or #nformat#on or other
formal !har.e su;!#ent #n form an" su%stan!e to susta#n
!on&#!t#on an" after the a!!use" ha" 'lea"e" to the !har.e/ the
!on&#!t#on or a!*u#ttal of the a!!use" or the "#sm#ssal of the
!ase shall %e a %ar to another 'rose!ut#on for the o0ense
!har.e"/ or for any attem't to !omm#t the same or frustrat#on
thereof/ or for any o0ense $h#!h ne!essar#ly #n!lu"es or #s
ne!essar#ly #n!lu"e" #n the o0ense !har.e" #n the former
!om'la#nt or #nformat#on2
-o$e&er/ the !on&#!t#on of the a!!use" shall not %e a %ar
to another 'rose!ut#on for an o0ense $h#!h ne!essar#ly #n!lu"es
the o0ense !har.e" #n the former !om'la#nt or #nformat#on
un"er any of the follo$#n. #nstan!es3
(a) The .ra&er o0ense "e&elo'e" "ue to su'er&en#n. fa!ts
ar#s#n. from the same a!t or om#ss#on !onst#tut#n. the former
!har.eA
(%) The fa!ts !onst#tut#n. the .ra&er !har.e %e!ame
6no$n or $ere "#s!o&ere" only after a 'lea $as entere" #n the
former !om'la#nt or #nformat#onA or
(!) The 'lea of .u#lty to the lesser o0ense $as ma"e
$#thout the !onsent of the 'rose!utor an" of the o0en"e" 'arty
e+!e't as 'ro&#"e" #n Se!t#on 7(f) of Rule 77G
In any of the fore.o#n. !ases/ $here the a!!use" sat#s:es
or ser&es #n $hole or #n 'art of the ,u".ment/ he shall %e
!re"#te" $#th the same #n the e&ent of !on&#!t#on for the .ra&er
o0ense2
C O M M E N T S
Su''ose" the a!!use" !omm#tte" estafa throu.h
fals#:!at#on of o;!#al "o!ument2 ut #nstea" of :l#n. one
#nformat#on for the !om'le+ !r#me of estafa thru fals#:!at#on of
o;!#al "o!ument/ the 'rose!ut#on :le" t$o #nformat#on/ one for
estafa an" another for fals#:!at#on of o;!#al "o!ument2 The
a!!use" mo&e" to *uash the #nformat#on/ #n&o6#n. the .roun"
of "ou%le ,eo'ar"y2 -o$ $#ll you resol&e the "efense mot#on2
154
The fling of the motion to 5uash the second information, while the
frst case is still pending, on the ground of double jeopardy, is pre!
mature, because ection 1 contemplates of prior conviction or dismissal
of the frst case without the consent of the accused, after which a
second prosecution is fled for the same o;ense or for an o;ense which
necessarily includes or is necessarily included in the o;ense charged in
the former complaint or information. *ites pendencia should be the
ground invo#e to dismiss the second information for the same o;ense.
The mere fling of a complaint or information is not synonymous
with conviction or ac5uittal.
Aowever, according to >ustice Regalado, 3Jhile section 1 spea#s
of a previous ac5uittal, conviction or dismissal, a motion to 5uash on the
ground of double jeopardy is proper even if the other case is still
pending.
-0*
The view proceeds from the rule that a motion to 5uash
must be fled before the accused enters his plea.
>ustice Aerrera, on the other hand, posits a di;erent view.
"ccording to him the weight of settled jurisprudence is that the mere
fling of two information charging the same o;ense does not put the
accused in jeopardy twice for the same o;ense because there is yet no
conviction or ac5uittal or termination without his consent. The primary
basis of double jeopardy is that the accused had been convicted or
ac5uitted on the frst case or that the same has been terminated
without his e<press consent.
-0-

<hat are the re*u#s#tes for "ou%le ,eo'ar"y to o'erate1
)#rst re*u#s#te2 4 " frst jeopardy must have attached prior to
the second. The jeopardy may be said to have attached when the
following re5uisites concur+
a. Court of !om'etent ,ur#s"#!t#on2 5 >urisdiction to try the
charge is essential to place the defendant in jeopardy. The following
factors determine the trial court@s jurisdiction+
'*( The place where the crime or any of its essential elements
happened9
201
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
"0., $$. 4&2
202
6e,,e,a, Re4e0ial Law, 7!l. /7, 200% "0., $$. %008%01, i-ing -he a#e# !. Pe!$le v.
2i.l!,e#, 181 SCRA 1, an0 B+la!ng v. Pe!$le, 1% SCRA %41
155
'-( The nature of the o;ense charged and the penalty prescribed
therefor by the law9
',( The authority of the prosecutor to fle the information9 and
'.( The authority of the judge to hear and determine the case.
Ae must have a valid appointment in the court where he is the presiding
judge.
b. Cal#" !om'la#nt or #nformat#on2 5 This means that the
complaint or information must aver all the elements of the o;ense
charged, because if it is radically defective it cannot support a judgment
of conviction. >eopardy does not attach where the defendant pleads to a
defective indictment.
-0,
"n accused cannot be convicted of a crime
charged of which he has not been informed. The presentation of
evidence cannot have the e;ect of validating a void information, or of
proving which does not legally e<ist. The information is not only
defective, it does not charge any o;ense at all.
-0.

!2 Cal#" arra#.nment2 5 7ouble jeopardy cannot be invo#ed
where the accused has not been arraigned. There can also be no
double jeopardy where the accused has not pleaded to the o;ense. The
e<istence of a plea is an essential re5uisite of double jeopardy. Aence,
where the accused initially entered a plea of guilty and subse5uently he
was allowed to prove the mitigating circumstance of incomplete self!
defense, but when he presented his evidence, the same prove complete
self!defense, the court cannot render judgment of ac5uittal, because his
testimony has the e;ect of vacating his former plea of guilty. The court
should have re5uired him to plead anew on the charge, or at least it
should have directed that a plea of not guilty be entered for him.
-0&

Se!on" Re*u#s#te2 4 The frst jeopardy 'frst case( must have
been validly terminated by conviction, ac5uittal or dismissal without the
e<press consent of the accused.
Conviction means a judgment declaring the accused guilty of the
o;ense charged and imposing upon him the penalty prescribed by law.
"c5uittal is a judgment declaring the accused not guilty of the crime
charged and ordering his release.
203
C+0ia v. C!+,- !. A$$eal#, ;R 5!. 110315, Jan. 11, 1&&8
204
Pe!$le v. A#+ni!n, 111 SCRA 4&0
205
Pe!$le v. Bali#aan, 1% SCRA 111&
151
The protection against double jeopardy may be invo#ed in case of
'*( previous ac5uittal, or '-( conviction of the same o;ense, or ',(
dismissal or termination of the criminal proceedings without the
e<pressed consent of the accused. Aowever, such dismissal must be on
the merit.
Th#r" Re*u#s#te2 4 The second jeopardy 'second case( must be
for the same o;ense or else the second o;ense necessarily includes or
is necessarily included in the o;ense charged in the frst information, or
is an attempt to commit the same or a frustration thereof.
The defense of double jeopardy places upon the accused the
burden of proving the following three re5uisites+ '*( the frst jeopardy
must have attached prior to the second9 '-( the frst jeopardy must
have been validly terminated9 and ',( the second jeopardy must be for
the same o;ense as that in the frst, or the second o;ense necessarily
includes or is necessarily included, in the frst.
-0:

<hen may "#sm#ssal or term#nat#on of the !r#m#nal a!t#on
$oul" su''ort a 'lea of "ou%le ,eo'ar"y
%t is worthy to note that not every dismissal on motion of the
accused would bar him from claiming double jeopardy. Eor instance,
after the prosecution rests its case, the accused may fle a demurer to
evidence. %f the court sustains the demurer and dismiss the action, such
dismissal terminates the action with the consent of the accused.
Aowever, the dismissal will bar the People from fling a second criminal
action against the accused for the same o;ense as the subject of the
frst criminal case, because the dismissal was in the merits of the case.
imilarly, where the prosecution had been granted several
postponements to present its evidence but did not do so, the court may,
upon motion of the defense, dismiss the case for failure to prosecute for
an unreasonable length of time. uch dismissal will bar the revival or
fling of a second information for the same o;ense against the same
accused.
Aowever, if the dismissal of the criminal case is not in the nature
of ac5uittal of the accused, as it was not on the merits, such dismissal
will not bar the fling of a second information for the same o;ense
against the same accused. Eor e<ample, the accused fles a motion to
5uash on the ground that the information charges no o;ense, or that
201
S+e,! v. Pe!$le, 450 SCRA 350
15%
the court has no jurisdiction over the place where the o;ense was
committed or on the ground of wrong venue, or that the oBcer who fled
the information has no authority to do so, if the court sustains the
motion to 5uash, a new information for the same o;ense against the
same accused will not constitute as a bar to the second prosecution, as
the frst case was dismissed or terminated not on the merits and with
the consent of the accused.
H#&e us the mean#n. of M$#th the e+'resse" !onsent of the
a!!use" to a "#sm#ssalN $h#!h $oul" not %ar the :l#n. of a ne$
#nformat#on for the same o0ense2
"s used in double jeopardy, a dismissal which amounts to an
ac5uittal, even if procured with the active act of the accused, will bar a
second prosecution of the same accused from the same o;ense.
Aowever, where the dismissal of the case is upon motion of the accused
which cannot be deemed as amounting to an ac5uittal, such dismissal
will not be deemed to have put him twice in jeopardy of the same
o;ense upon the re!fling of the case.
-01

<hen #s a "#sm#ssal !ons#"ere" an a!*u#ttal / e&en #f ma"e
u'on mot#on of the a!!use"1
*. Jhere the dismissal has the e;ect of a judgment on the
merits, such as when based on the demurer to evidence fled by the
accused. The sole ground of a demurer to evidence is insuBciency of
the prosecution@s evidence.
-. Jhere the dismissal, although procured by the accused, is
based on his constitutional right to speedy trial, which has the e;ect of
the failure of the People to prosecute.
Section %. +ro/isional dismissal. " A !ase shall not %e
'ro&#s#onally "#sm#sse" e+!e't $#th the e+'ress !onsent of the
a!!use" an" $#th not#!e to the o0en"e" 'arty2
The 'ro&#s#onal "#sm#ssal of o0enses 'un#sha%le %y
#m'r#sonment not e+!ee"#n. s#+ (G) years or a :ne of any
amount/ or %oth/ shall %e!ome 'ermanent one (7) year after
#ssuan!e of the or"er $#thout the !ase ha&#n. %een re&#&e"2
20%
Pe!$le v. Sali!, 84 Phil. %22
158
<#th res'e!t to o0enses 'un#sha%le %y #m'r#sonment of more
than s#+ (G) years/ the#r 'ro&#s#onal "#sm#ssal shall %e!ome
'ermanent t$o (9) years after #ssuan!e of the or"er $#thout the
!ase ha&#n. %een re&#&e"2
C O M M E N T S
<hat #s the mean#n. of a 'ro&#s#onal "#sm#ssal1
Provisional dismissal connotes a temporary termination of a
criminal action upon the concurrence of the following re5uisites+
*. The prosecution with the e<press conformity of the accused, or
the accused moves for a provisional dismissal of the case, or both the
prosecution and the accused jointly move for such dismissal of the case9
-. The o;ended party is notifed of the motion for the provisional
dismissal of the case9
,. The court issues an order granting the motion and e<pressly
dismissing the case provisionally9
Q .. The public prosecutor is served with a copy of the order of
provisional dismissal of the case9
&. The order of provisional dismissal grants the prosecution the
right to revive or re!fle the same case for the same o;ense against the
same accused, within one '*( year after the issuance of the order if the
o;ense is punishable with imprisonment not e<ceeding si< ':( years or
a fne of any amount or two '-( years if the o;ense charged is
punishable with imprisonment of more than si< ':(years9
:. The order shall also stipulate that upon the e<piration of these
periods, as the case maybe, without the case having been revived or re!
fled, the provisional dismissal shall become permanent.
<hat #s the reason for the t#me l#m#t 'ro&#"e" #n the 9
n"
'ara.ra'h of Se!t#on L Rule 77>1
The reason for the time limit, together with the e<press consent of
the accused to a provisional dismissal, is to set a time line for invo#ing
15&
the principle of double jeopardy in case of revival or re!fling of the
action.
-0/

Section (. Bailure to mo/e to 3uash or to alle&e any
&round therefor. - The fa#lure of the a!!use" to assert any
.roun" of a mot#on to *uash %efore he 'lea"s to the !om'la#nt
or #nformat#on/ e#ther %e!ause he "#" not :le a mot#on to *uash
or fa#le" to alle.e the same #n sa#" mot#on/ shall %e "eeme" a
$a#&er of any o%,e!t#ons e+!e't the follo$#n.3 (a) that the fa!ts
!har.e" "o not !onst#tute an o0enseA (%) that the !ourt try#n.
the !ase has no ,ur#s"#!t#on o&er the o0ense !har.e"A (!) that
the !r#m#nal a!t#on or l#a%#l#ty has %een e+t#n.u#she"A an" (")
that the a!!use" has %een 're&#ously !on&#!te" or a!*u#tte" of
the !har.e"/ or the !ase a.a#nst h#m $as "#sm#sse" or
other$#se term#nate" $#thout h#s e+'ress !onsent2 (See
Se!t#on E/ 'ars2 a/ %/ . an" #/ of th#s Rule2)
Rule 77L 5 PRE4TRIAL
Section ). +re-trial: mandatory in criminal cases. " In all
!r#m#nal !ases !o.n#=a%le %y the Sandi&an%ayan/ Re.#onal Tr#al
Court/ Metro'ol#tan Tr#al Court/ Mun#!#'al Tr#al Court #n C#t#es/
Mun#!#'al Tr#al Court an" Mun#!#'al C#r!u#t Tr#al Court/ the !ourt
shall/ after arra#.nment an" $#th#n th#rty (E8) "ays from the
"ate the !ourt a!*u#res ,ur#s"#!t#on o&er the 'erson of the
208
Pe!$le v. La#!n, 400 SCRA 21%, 413 SCRA 2
110
a!!use"/ unless a shorter 'er#o" #s 'ro&#"e" #n s'e!#al la$s or
!#r!ulars of the Su'reme Court/ or"er a 're4tr#al !onferen!e to
!ons#"er the follo$#n.3
(a) 'lea %ar.a#n#n.A
(%) st#'ulat#on of fa!tsA
(!) mar6#n. for #"ent#:!at#on of e&#"en!e of the 'art#esA
(") $a#&er of o%,e!t#ons to a"m#ss#%#l#ty of e&#"en!eA
(e) mo"#:!at#on of the or"er of tr#al #f the a!!use" a"m#ts
the !har.e %ut #nter'oses a la$ful "efenseA an"
(f) su!h matters as $#ll 'romote a fa#r an" e+'e"#t#ous
tr#al of the !r#m#nal an" !#&#l as'e!ts of the !ase2
C O M M E N T S
Con!e't of 're4tr#al2 4 The Cenchboo# for Trial Court >udges
defnes pre!trial as a procedural device by which the court is called upon
after the fling of the last pleading, to compel the parties to appear
before it and agree how the proceedings may be shortened without
sacrifcing the rights of the parties to due process, by stipulation of the
issues of facts and law, and such other matters as may aid in the
prompt disposition of the action. Pre!trial is mandatory but not
jurisdictional.
-02

Republic "ct 4o. /.2,, the peedy Trial "ct of *22/. which too#
e;ect on eptember *&, l22/, made the pre!trial procedure as
mandatory in all criminal cases cogni)able by the andiganbayan, the
Regional Trial Court, the Getropolitan and Gunicipal Trial Courts, but not
jurisdictional. Pre!trial has two phases+ '*( the preliminary conference,
and '-( the pre!trial conference. %n criminal cases, the last pleading
refers to the arraignment where the accused enters his plea.
Duty of the !ourt to set the !ase for 'rel#m#nary
!onferen!e an" 're4tr#al !onferen!e/ #f $arrante"2
"fter the arraignment of the accused, the court shall immediately
set the pre!trial conference within thirty ',0( day the from date of
20&
2a,-ie3 v. De la 2e,e0, 1%4 SCRA 182
111
arraignment, and issue an order+ 'a( re5uiring the private o;ended
party to appear thereat for the purpose of plea bargaining, e<cept in
case for violation of the Comprehensive 7angerous 7rugs "ct of -00-
which bars plea bargaining, and for other matters re5uiring his
presence9 'b( referring the case to the Cranch Cler# of Court, if
warranted, for preliminary conference to be set at least three ',( days
prior to the pre!trial conference9 and 'c( informing the parties that no
evidence shall be allowed to be presented and o;ered during the trial
other than those identifed and mar#ed during the pre!trial e<cept when
allowed by the court for good cause shown. Jhere the case may be
subject to mediation, the judge shall refer the parties and their counsel
to the Philippine Gediation Center, with branch oBce in the site of the
court where the case is pending.
Prel#m#nary !onferen!e %efore the ran!h Cler6 of Court2 5
7uring the preliminary conference, the Cranch Cler# of court shall+
*. "ssist the parties in reaching a settlement of the civil aspect of
the case9
-. Gar# the documents to be presented as e<hibits and attached
copies thereof to the record after comparing them with the originals9
,. "scertain from the parties the undisputed facts and admissions
on the genuineness and due e<ecution of the documents mar#ed as
e<hibits9
.. Consider such other matter as may aid in the prompt
disposition of the case9
&. Prepare the minutes of the preliminary conference, to be
signed by both parties and their respective counsels9
:. "ttach to the record of the case the minutes of the preliminary
conference and the e<hibits.
Matters to %e !ons#"ere" "ur#n. the 're4tr#al !onferen!e2
*. Plea bargaining. ! Plea bargaining is the top item of the
agenda of the pre!trial conference. "t this stage of the criminal case,
e<cept for violations of the Comprehensive 7angerous 7rugs "ct of
-00-, the trial judge shall consider the plea bargaining negotiations,
where the prosecution and the o;ended party, on the one hand, and the
accused, on the other, discuss the plea o;ered by the accused, which
may be either of the following+
112
'a( the accused will plead guilty to a lesser o;ense than the one's(
charged or to a di;erent o;ense in return for the dismissal of the other
case's( with or without credit to the mitigating circumstance of
voluntary plea of guilty9 or
'b( The accused will change his original plea of not guilty to one
or some of the counts of a multi!count indictment in return for the
dismissal of other count's( with or without credit for the plea of guilty as
a mitigating circumstance9 or
'c( The accused will change his plea of not guilty to that of guilty
of the o;ense charged in return for the o;ended party@s waiver of the
whole or part of the civil liability or damages9
'd( The accused will change his plea of not guilty to that of guilty
of the o;ense charged, in return for the elimination of one, some or all
of the generic aggravating circumstance alleged in the information or
complaint9 or
'e( The accused will plea bargain on the nature, duration or
degree of the imposable penalty within the allowable range.
-*0

Pro!e"ure $here 'lea %ar.a#n#n. #s su!!esful. D Jhere the
prosecution and the o;ended party agree with the plea o;ered by the
accused, the court shall+
'a( %ssue an order which contains the plea bargaining arrived at9
'b( Proceed to receive evidence on the civil aspect of the case,
unless the o;ended party waives the civil action for civil liability,
reserves the right to institute the civil action separately, or has
instituted the civil action before the criminal action9
'c( Render and promulgate judgment of conviction, including
therein, in proper cases, the civil liability or damages duly established
by the evidence.
-**

Pro!e"ure $here 'lea %ar.a#n#n. fa#ls2 ! hould plea
bargaining be a failure, the court shall adopt the minutes of the
preliminary conference as part of the pre!trial conference, confrm the
mar#ing of e<hibits or substituted photocopies, and the admissions on
210
Benh)!!9 .!, (,ial J+0ge#, C,i4inal P,!e0+,e, $$. 4842 -! 4843
211
/)i0' #ee al#! A.2. 5!. 038180&8SC, P,e8-,ial in C,i4inal Ca#e#, $$. 13
113
the genuineness and due e<ecution of documents and list of object and
testimonial evidence. crutini)es every allegations of the information
and the statements in the aBdavits and other documents, which form
part of the preliminary investigation. %ncidentally, where plea
bargaining fails, the court may re5uire the prosecutor to elevate to the
court the records of the preliminary investigation.
The court may set the case for further pre!trial proceedings to
determine other admissions of facts, documents, and in particular as to
the following+
'*( The identity of the accused9
'-( The court@s territorial jurisdiction relative to the o;ense's(
charged9
',( The 5ualifcation of e<pert witness'es(9
'.( The amount of damages9
'&( 8enuineness and due e<ecution of documents9
':( The cause of death or injury, in proper cases9
'1( "doption of any evidence presented during the preliminary
investigation9
'/( 7isclosure of defenses of alibi, insanity, self!defense, e<ercise
of public authority, and justifying or e<empting circumstances9 and
'2( uch other matters that would limit the facts in issue.
Other #tems of 're4tr#al !onnferen!e a.en"a
'*( 7efnition of factual and legal issues9
'-( "greement of the parties on specifc trial dates which shall
designate the time frame for the di;erent stages of the proceedings up
to the promulgation of the decision9
',( Re5uire the parties to submit to the Cranch Cler# of court the
names, addresses and contact numbers of witnesses who should be
summoned by subpoena9 and
114
'.( 7uring the pre!trial, the judge shall be the one to as#
5uestions on issues raised therein and all 5uestions must be directed to
him to avoid hostilities between the parties.
-*-
Section 2. +re-trial a&reement. 4 All a.reements or
a"m#ss#ons ma"e or entere" "ur#n. the 're4tr#al !onferen!e
shall %e re"u!e" #n $r#t#n. an" s#.ne" %y the a!!use" an"
!ounsel/ other$#se/ they !annot %e use" a.a#nst the a!!use"2
The a.reements !o&er#n. the matters referre" to #n Se!t#on 7 of
th#s Rule shall %e a''ro&e" %y the !ourt/ namely3
72 Plea %ar.a#n#n.A
92 St#'ulat#on of fa!tsA
E2 Mar6#n. for #"ent#:!at#on of e&#"en!e of the 'art#esA
F2 <a#&er of o%,e!t#ons to a"m#ss#%#l#ty of e&#"en!eA
K2 Mo"#:!at#on of the or"er of tr#al #f the a!!use" a"m#ts
the !har.e %ut #nter'oses a la$ful "efenseA
G2 Su!h matters as $#ll 'romote a fa#r an" e+'e"#t#ous
tr#al of the !r#m#nal an" !#&#l as'e!ts of the !ase
Section 3. $on-appearance at pre-trial conference. 4 If the
!ounsel for the a!!use" or the 'rose!utor "oes not a''ear at
the 're4tr#al !onferen!e an" "oes not o0er an a!!e'ta%le
e+!use for h#s la!6 of !oo'erat#on/ the !ourt may #m'ose 'ro'er
san!t#ons or 'enalt#es2
Section 4. +retrial order. " After the 're4tr#al !onferen!e/
the !ourt shall #ssue an or"er re!#t#n. the a!t#ons ta6en/ the
fa!ts st#'ulate"/ an" e&#"en!e mar6e"2 Su!h or"er shall %#n"
the 'art#es/ l#m#t the tr#al to the matters not "#s'ose" of/ an"
!ontrol the !ourse of the a!t#on "ur#n. the tr#al/ unless mo"#:e"
%y the !ourt to 're&ent man#fest #n,ust#!e2
C O M M E N T S
Su''ose "ur#n. the 're4tr#al !onferen!e the 'rose!ut#on
an" the "efense st#'ulate" that forens#! !hem#st S@/ #f
212
A.2. 5!. 038180&8SC
115
'resente" an" e+am#ne"/ $#ll test#fy that %ase" on the result of
h#s la%oratory e+am#nat#ons he foun" the su%stan!e #n *uest#on
as metham'hetam#ne hy"ro!lor#"e/ a 'roh#%#te" "ru.2 Is the
a!!use" %oun" %y the st#'ulat#on entere" #nto %y h#s !ounsel
$#th the 'rose!utor1
"ssuming that the stipulation made by the prosecutor and the
defense counsel was reduced in writing and signed by the accused and
his counsel, the stipulation entered into by the parties in the course of
the pre!trial has long been allowed and recogni)ed as declarations
constituting judicial admissions and, therefore, conclusive on the
parties.
-*,
Cut if the written stipulation entered into by the prosecution
and the defense counsel was not reduced in writing and signed by the
accused and his counsel, the admissions made therein cannot be used
as evidence against the accused.
"lthough under ection . of Rule *-2, an admission, verbal or
written, made by a party in the course of a judicial proceedings does
not re5uire proof and are binding and conclusive upon the party ma#ing
such admission, this Rule is subject the provision of ection - of Rule
**/, as an e<ception thereto.
Su''ose the 'r#&ate o0en"e" 'arty o%,e!te" to the o0er of
the a!!use" to 'lea" .u#lty to an o0ense lo$er than the o0ense
!har.e" #n the #nformat#on/ %ut the 'rose!utor a.ree" an"
a!!e'te" the o0er of the a!!use"2 May the !ourt a''ro&e" the
o0er of the a!!use" to 'lea" .u#lty of an o0ense lo$er than
that !har.e" #n the #nformat#on/ "es'#te the o%,e!t#on of the
o0en"e" 'arty1
The court has authority during the plea bargaining to allow the
accused to plead guilty of an o;ense lower than the one charged in the
indictment, even over the objection of the o;ended party. The reason
for this is the fact that it is the prosecutor who controls the prosecution
of the case9 he is the one who has the evidence and #nows what he can
prove to the court. The concern of the o;ended party is only in the
aspect of the civil liability of the accused

213
Pe!$le v. B!a,, 2% SCRA 512
111
Rule 77B 4 T R I A L
Section ). Time to prepare for trial: - After a 'lea of not
.u#lty #s entere"/ the a!!use" shall ha&e at least :fteen (7K)
"ays to 're'are for tr#al2 The tr#al shall !ommen!e $#th#n th#rty
(E8) "ays from re!e#'t of the 're4tr#al or"er2
C O M M E N T S
Concept of trial. ! "s understood in remedial law, trial refers to
the stage and process of receiving the respective evidence of the
parties to support their conNicting claims and defenses. %n criminal
cases, the evidence of the prosecution is designed to demonstrate its
charges against the accused beyond reasonable doubt, while the
evidence of the accused aims to establish his defenses. The term
embraces the period of the proceedings for the introduction of the
evidence of both parties.
-*.

3Trial6 should be distinguished from 3hearing6 which is of broader
coverage. Aearing embraces the di;erent stages of the litigation,
including trial, where the parties are a;orded the opportunity to be
heard of their positions on di;erent issues. Aearings do not necessarily
re5uire the presentation of evidence.
-*&
Trial is one of the integral elements of due process, for it is at this
stage where the parties are allowed to adduce their respective evidence
which the court is tas# to consider and evaluate before it renders its
judgment.
214
Re$+)l v. San0igan)a*an, e- al., ;.R. 5!. 152154, 5!v. 18, 2003
215
/)i0.
11%
Section 2. Continuous trial until termination4
postponements. " Tr#al on!e !ommen!e" shall !ont#nue from "ay
to "ay as far as 'ra!t#!a%le unt#l term#nate"2
The !ourt shall after !onsultat#on $#th the 'rose!ut#on an"
"efense !ounsel/ set the !ase for !ont#nuous tr#al on a $ee6ly or
other short term (#n the !ourtRs) tr#al !alen"ar at the earl#est
'oss#%le t#me so as to ensure s'ee"y tr#al2 In no !ase shall the
ent#re 'er#o" e+!ee" one hun"re" e#.hty (7L8) "ays from the
:rst "ay of tr#al/ e+!e't as other$#se author#=e" %y the
Su'reme Court2
The t#me l#m#tat#on 'ro&#"e" un"er th#s se!t#on an" the
're!e"#n. se!t#on shall not a''ly $here s'e!#al la$s or !#r!ulars
of the Su'reme Court 'ro&#"e for a shorter 'er#o" of tr#al2
C O M M E N T S
<hat #s the !on!e't of !ont#nuous tr#al1
Continuous trial is conceived to be a judicial fact!fnding and
adjudication conducted with speed and dispatch without sacrifce to any
of the component elements of due process of law. o trials are held on
scheduled dates without needless postponement9 the trial of the factual
issues defned by the parties at the pre!trial and other proceedings are
terminated without unnecessary delays9 and the case is submitted for
decision within '20( days from the date of the initial hearing, unless for
meritorious reasons an e<tension is permitted.
-*:

Section 3. 0;clusions. " The follo$#n. 'er#o"s of "elay
shall %e e+!lu"e" #n !om'ut#n. the t#me $#th#n $h#!h tr#al must
!ommen!e3
(a) Any 'er#o" of "elay result#n. from other 'ro!ee"#n.s
!on!ern#n. the a!!use"/ #n!lu"#n. %ut not l#m#te" to the
follo$#n.3
(7) Delay result#n. from an e+am#nat#on of the
'hys#!al an" mental !on"#t#on of the a!!use"A
211
See 6e,,e,a, Re4e0ial Law, 7!l. /7, 200% "0,, $$. %&5
118
(9) Delay result#n. from 'ro!ee"#n.s $#th res'e!t to
other !r#m#nal !har.es a.a#nst the a!!use"A
(E) Delay result#n. from e+traor"#nary reme"#es
a.a#nst #nterlo!utory or"ersA
(F) Delay result#n. from 're4tr#al 'ro!ee"#n.s/
'ro&#"e" that the "elay "oes not e+!ee" th#rty (E8) "aysA
(K) Delay result#n. from or"ers of #nh#%#t#on or
'ro!ee"#n.s relat#n. to !han.e of &enue of !ases or
transfer from other !ourtsA
(G) Delay result#n. from a :n"#n. of the e+#sten!e of
a 're,u"#!#al *uest#onA an"
(>) Delay reasona%ly attr#%uta%le to any 'er#o" not
to e+!ee" th#rty (E8) "ays "ur#n. $h#!h any 'ro!ee"#n.
!on!ern#n. the a!!use" #s a!tually un"er a"&#sement2
(%) Any 'er#o" of "elay result#n. from the a%sen!e or
una&a#la%#l#ty of an essent#al $#tness2
)or 'ur'oses of th#s su%'ara.ra'h/ an essent#al $#tness
shall %e !ons#"ere" a%sent $hen h#s $herea%outs are un6no$n
or h#s $herea%outs !annot %e "eterm#ne" %y "ue "#l#.en!e2 -e
shall %e !ons#"ere" una&a#la%le $hene&er h#s $herea%outs are
6no$n %ut h#s 'resen!e for tr#al !annot %e o%ta#ne" %y "ue
"#l#.en!e2
(!) Any 'er#o" of "elay result#n. from the mental
#n!om'eten!e or 'hys#!al #na%#l#ty of the a!!use" to stan" tr#al2
(") If the #nformat#on #s "#sm#sse" u'on mot#on of the
'rose!ut#on an" thereafter a !har.e #s :le" a.a#nst the a!!use"
for the same o0ense/ any 'er#o" of "elay from the "ate the
!har.e $as "#sm#sse" to the "ate of the t#me l#m#tat#on $oul"
!ommen!e to run as to the su%se*uent !har.e ha" there %een
no 're&#ous !har.e2
(e) A reasona%le 'er#o" of "elay $hen the a!!use" #n
,o#ne" for tr#al $#th a !o4a!!use" o&er $hom the !ourt has not
a!*u#re" ,ur#s"#!t#on/ or/ as to $hom the t#me for tr#al has not
run an" no ment#on for se'arate tr#al has %een .rante"2
11&
(f) Any 'er#o" of "elay result#n. from a !ont#nuan!e
.rante" %y any !ourt motu proprio or on mot#on of e#ther the
a!!use" or h#s !ounsel/ or the 'rose!ut#on/ #f the !ourt .rante"
the !ont#nuan!e on the %as#s of #ts :n"#n.s set forth #n the
or"er that the en"s of ,ust#!e ser&e" %y ta6#n. su!h a!t#on out4
$e#.ht the %est #nterest of the 'u%l#! an" the a!!use" #n a
s'ee"y tr#al2
C O M M E N T S
<hen may !ont#nuous tr#al %e sus'en"e"1
*. Jhen on account of reasonable delays as enumerated in
ection , of Rule **2 continuous trial cannot proceed.
-. Jhen postponement of continuous trial cannot be avoided,
otherwise miscarriage of justice would ensue.
<hat are the fa!tors $h#!h may ,ust#fy the !ourt to .rant
!ont#nuan!e1
Section 4. Bactors for &rantin& continuance. " The
follo$#n. fa!tors/ amon. others/ shall %e !ons#"ere" %y a !ourt
#n "eterm#n#n. $hether to .rant a !ont#nuan!e un"er Se!t#on
E(f) of th#s Rule3
(a) <hether or not the fa#lure to .rant a !ont#nuan!e #n
the 'ro!ee"#n. $oul" l#6ely ma6e a !ont#nuat#on of su!h
'ro!ee"#n. #m'oss#%le or result #n a m#s!arr#a.e of ,ust#!eA
(%) <hether or not the !ase ta6en as a $hole #s so no&el/
unusual an" !om'le+/ "ue to the num%er of a!!use" or the
nature of the 'rose!ut#on/ or that #t #s unreasona%le to e+'e!t
a"e*uate 're'arat#on $#th#n the 'er#o" of t#me esta%l#she"
there#n2
1%0
In a""#t#on/ no !ont#nuan!e un"er se!t#on E(f) of th#s Rule
shall %e .rante" %e!ause of !on.est#on of the !ourtRs !alen"ar
or la!6 of "#l#.ent 're'arat#on or fa#lure to o%ta#n a&a#la%le
$#tnesses on the 'art of the 'rose!utor2
May the 'er#o" of !ont#nuous tr#al %e e+ten"e" %y the
!ourt1
Ies, pursuant to ection : of Rule **2, the period for continuous
trial is subject to e<tension on meritorious grounds, provided that the
entire period of trial should not e<ceed one hundred eighty '*/0( days
from the frst day of the trial. =therwise, permission from the upreme
Court is necessary.
May the !ourt .rant 'ost'onement "ue to a%sen!e of
$#tness1
Ies, provided the following re5uisites concur+
'*( That the testimony of the witness is really material and such
materiality is shown to the court9
'-( That the party who applies for postponement has not been
guilty of neglect9
',( That the witness can be had at the time to which the trial has
been deferred9
'.( That no similar evidence could be obtained.
-*1

'&( That to deny the motion for postponement of the continuous
trial may amount to a denial of due process.
-o$ $oul" the .rant of a mot#on for 'ost'onement a0e!t
the one hun"re" e#.hty (7L8) "ays to !on!lu"e the tr#al #n a
!r#m#nal !ase1
The period covered by the postponement and continuation will not
be e<cluded from the period of one hundred eighty '*/0( days within
which to terminate the trial, although the upreme court has authority
to e<tend such period upon proper application.
21%
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
Rev. "0.. $$. 525
1%1
<hat #s the t#me l#m#t #f the a!!use" #s .rante" ne$ tr#al1
Section 5. Time limit follo.in& an order for ne. trail. - If
the a!!use" #s to %e tr#e" a.a#n 'ursuant to an or"er for a ne$
tr#al/ the tr#al shall !ommen!e $#th#n th#rty (E8) "ays from
not#!e of the or"er/ 'ro&#"e" that #f the 'er#o" %e!omes
#m'ra!t#!al "ue to una&a#la%#l#ty of $#tnesses an" other fa!tors/
the !ourt may e+ten" #t %ut not to e+!ee" one hun"re" e#.hty
(7L8) "ays from not#!e of sa#" or"er for a ne$ tr#al2
State the rule on the e+ten"e" t#me l#m#t un"er Se!t#on G2
Section : 0;tended time limit. - Not$#thstan"#n. the
'ro&#s#on of se!t#on 7(.)/ Rule 77G an" the 're!e"#n. se!t#on 7/
for the :rst t$el&e4!alen"ar4month 'er#o" follo$#n. #ts
e0e!t#&#ty on Se'tem%er 7K/ 7BBL/ the t#me l#m#t $#th res'e!t to
the 'er#o" from arra#.nment to tr#al #m'ose" %y sa#" 'ro&#s#on
shall %e one hun"re" e#.hty (7L8) "ays2 )or the se!on" t$el&e4
month 'er#o"/ the t#me l#m#t shall %e one hun"re" t$enty (798)
"ays/ an" for the th#r" t$el&e4month 'er#o"/ the t#me l#m#t shall
%e e#.hty (L8) "ays2
State the "ut#es of the 'u%l#! attorneyRs o;!e $here #t #s
en.a.e" to "efen" an a!!use" $ho #s un"er 're&ent#&e
"etent#on2
Section #. +u-lic attorneyEs duties .here accused is
imprisoned. " If the 'u%l#! attorney ass#.ne" to "efen" a 'erson
!har.e" $#th a !r#me 6no$s that the latter #s 're&ent#&ely
"eta#ne"/ e#ther %e!ause he #s !har.e" $#th a %a#la%le !r#me %ut
has no means to 'ost %a#l/ or/ #s !har.e" $#th a non4%a#la%le
!r#me/ or/ #s ser&#n. a term of #m'r#sonment #n any 'enal
#nst#tut#on/ #t shall %e h#s "uty to "o the follo$#n.3
(a) Shall 'rom'tly un"erta6e to o%ta#n the 'resen!e of the
'r#soner for tr#al or !ause a not#!e to %e ser&e" on the 'erson
ha&#n. !usto"y of the 'r#soner re*u#r#n. su!h 'erson to so
a"&#se the 'r#soner of h#s r#.ht to "eman" tr#al2
(%) U'on re!e#'t of that not#!e/ the !usto"#an of the
'r#soner shall 'rom'tly a"&#se the 'r#soner of the !har.e an" of
h#s r#.ht to "eman" tr#al2 If at any t#me thereafter the 'r#soner
#nforms h#s !usto"#an that he "eman"s su!h tr#al/ the latter
1%2
shall !ause not#!e to that e0e!t to %e sent to the 'u%l#!
attorney2
(!) U'on re!e#'t of su!h not#!e/ the 'u%l#! attorney shall
'rom'tly see6 to o%ta#n the 'resen!e of the 'r#soner for tr#al2
(") <hen the !usto"#an of the 'r#soner re!e#&es from the
'u%l#! attorney a 'ro'erly su''orte" re*uest for the a&a#la%#l#ty
of the 'r#soner for 'ur'oses of tr#al/ the 'r#soner shall %e ma"e
a&a#la%le a!!or"#n.ly2

<hat are the san!t#ons/ an" the .roun"s therefor/ $h#!h
may %e #m'ose" on the 'r#&ate !ounsel of the a!!use"/ the
'u%l#! attorney/ or the 'rose!utor $ho &#olate the#r "ut#es
un"er the Rules on !ont#nuous tr#al1
Section %. Sanctions. - In any !ase #n $h#!h 'r#&ate
!ounsel for the a!!use"/ the 'u%l#! attorney/ or the 'rose!utor3
(a) Pno$#n.ly allo$s the !ase to %e set for tr#al $#thout
"#s!los#n. that a ne!essary $#tness $oul" %e una&a#la%le for
tr#alA
(%) )#les a mot#on solely for "elay $h#!h he 6no$s #s
totally fr#&olous an" $#thout mer#tA
(!) Ma6es a statement for the 'ur'ose of o%ta#n#n.
!ont#nuan!e $h#!h he 6no$s to %e false an" $h#!h #s mater#al to
the .rant#n. of a !ont#nuan!eA or
(") <#llfully fa#ls to 'ro!ee" to tr#al $#thout ,ust#:!at#on
!ons#stent $#th the 'ro&#s#ons hereof/ the !ourt may 'un#sh
su!h !ounsel/ attorney or 'rose!utor/ as follo$s3
(7) y #m'os#n. on a !ounsel 'r#&ately reta#ne" #n
!onne!t#on
$#th the "efense of an a!!use"/ a :ne not e+!ee"#n.
Ph'98/888288A
(9) y #m'os#n. on any a''o#nte" !ounsel de ofcio/
'u%l#! attorney or 'rose!utor/ a :ne not e+!ee"#n. Ph'K/888288A
1%3
(E) y "eny#n. any "efense !ounsel or 'rose!utor
the r#.ht to 'ra!t#!e %efore the !ourt try#n. the !ase for a
'er#o" not e+!ee"#n. E8 "ays2 The 'un#shment 'ro&#"e"
for %y th#s se!t#on shall %e $#thout 're,u"#!e to any
a''ro'r#ate !r#m#nal a!t#on or other san!t#on author#=e"
un"er these Rules2

<hat #s the reme"y of the a!!use" #f he #s not %rou.ht to
tr#al $#th#n the t#me l#m#t1
Section (. 9emedy .here the accused is not -ou&ht to
trial .ithin the time limit. " If the a!!use" #s not %rou.ht to tr#al
$#th#n the t#me l#m#t re*u#re" %y se!t#on 7(.)/ Rule 77G an"
se!t#on 7/ as e+ten"e" %y se!t#on G of th#s Rule/ the #nformat#on
may %e "#sm#sse" on mot#on of the a!!use" on the .roun" of
"en#al of h#s r#.ht to s'ee"y tr#al2 The a!!use" shall ha&e the
%ur"en of .o#n. for$ar" $#th any e&#"en!e to esta%l#sh the
e+!lus#on of t#me un"er se!t#on E of th#s Rule2 The "#sm#ssal
shall %e su%,e!t to the rules on "ou%le ,eo'ar"y2
)a#lure of the a!!use" to mo&e for "#sm#ssal 'r#or to tr#al
shall !onst#tute a $a#&er of the r#.ht to "#sm#ss un"er th#s
se!t#on2
Section )*. Ca. on speedy trial is not a -ar to pro/ision on
speedy trial in the Constitution. - No 'ro&#s#on of la$ on s'ee"y
tr#al an" no rule #m'lement#n. the same shall %e #nter'rete" as
a %ar to any !har.e of "en#al of the r#.ht to s'ee"y tr#al
.uarantee" %y se!t#on 7F(9)/ Art#!le III/ of the 7BL>
Const#tut#on2
Section )). 5rder of trial. " The tr#al shall 'ro!ee" #n the
follo$#n. or"er3
(a) The 'rose!ut#on shall 'resent e&#"en!e to 'ro&e the
!har.e an" #n the 'ro'er !ase/ the !#&#l l#a%#l#ty2
(%) The a!!use" may 'resent e&#"en!e to 'ro&e h#s
"efense an" "ama.es/ #f any/ ar#s#n. from the #ssuan!e of a
'ro&#s#onal reme"y #n the !ase2
1%4
(!) The 'rose!ut#on an" the "efense may #n that or"er/
'resent re%uttal an" sur4re%uttal e&#"en!e unless the !ourt/ #n
furtheran!e of ,ust#!e/ 'erm#ts them to 'resent a""#t#onal
e&#"en!e %ear#n. u'on the ma#n #ssue2
(") U'on a"m#ss#on of the e&#"en!e of the 'art#es/ the
!ase shall %e "eeme" su%m#tte" for "e!#s#on unless the !ourt
"#re!ts them to ar.ue orally or to su%m#t $r#tten memoran"a2
(e) <hen the a!!use" a"m#ts the a!t or om#ss#on !har.e"
#n the !om'la#nt or #nformat#on %ut #nter'oses a la$ful "efense
the or"er of tr#al may %e mo"#:e"2

May an a!!use" se!ure the test#mony of h#s $#tness %efore
tr#al1
Section )2. ,pplication for e;amination of .itness for
accused -efore trial. " <hen the a!!use" has %een hel" to
ans$er for an o0ense/ he may/ u'on mot#on $#th not#!e to the
other 'art#es/ ha&e $#tnesses !on"#t#onally e+am#ne" #n h#s
%ehalf2 The mot#on shall state3 (a) the name an" res#"en!e of
the $#tnessA (%) the su%stan!e of h#s test#monyA an" (!) that
the $#tness #s s#!6 or #n:rm as to a0or" reasona%le .roun" for
%el#e&#n. the he $#ll not %e a%le to atten" the tr#al/ or res#"es
more one hun"re" (788) 6#lometers from the 'la!e of tr#al an"
has no means to atten" the same/ or that other s#m#lar
!#r!umstan!es e+#st that $oul" ma6e h#m una&a#la%le or 're&ent
h#m from atten"#n. the tr#al2 The mot#on shall %e su''orte" %y
an a;"a&#t of the a!!use" an" su!h other e&#"en!e as the !ourt
may re*u#re2
C O M M E N T S
<hat are the re*u#s#tes #n or"er that the a!!use" may
se!ure the !on"#t#onal e+am#nat#on of h#s $#tness %efore tr#al1
*. The accused should fle a motion, with notice to the other
parties, praying that his witnesses be conditionally e<amined in his
behalf even before his case is set for trial9
-. The motion shall state+ 'a( the names and residences of the
witnesses9
'b( the substances of their respective testimonies9 and 'c( that the
witnessHwitnesses isHare sic# or infrm as to a;ord reasonable ground for
1%5
believing that heHthey will not be able to attend the trial, or that heHthey
reside more than *00 #ilometers from the place of the trial and hasHhave
no means to attend the same9 and 'd( that other similar circumstances
e<ist that would ma#e himHthem unavailable or prevent himHthem from
attending the trial.
,. The motion shall be supported by an aBdavit of the accused
swearing on those grounds, and such other evidence as the court may
re5uire.
-o$ #s the e+am#nat#on of "efense $#tness ta6en #f he #s
allo$e" to e+am#ne them %efore tr#al1
Section )3. 0;amination of defense .itness4 ho. made. -
If the !ourt #s sat#s:e" that the e+am#nat#on of a $#tness for the
a!!use" #s ne!essary/ an or"er shall %e ma"e "#re!t#n. the
$#tness %e e+am#ne" at a s'e!#:! "ate/ t#me an" 'la!e/ an" that
a !o'y of the or"er %e ser&e" on the 'rose!utor at least three
(E) "ays %efore the s!he"ule" e+am#nat#on2 The e+am#nat#on
shall %e ta6en %efore a ,u".e/ or #f not 'ra!t#!a%le/ %efore a
mem%er of the ar #n .oo" stan"#n. so "es#.nate" %y the ,u".e
#n the or"er/ or #f the or"er %e ma"e %y a !ourt of su'er#or
,ur#s"#!t#on/ %efore an #nfer#or !ourt to %e "es#.nate" there#n2
The e+am#nat#on shall 'ro!ee" not$#thstan"#n. the a%sen!e of
the 'rose!utor 'ro&#"e" he $as "uly not#:e" of the hear#n.2 A
$r#tten re!or" of the test#mony shall %e ta6en2

C O M M E N T S
State the 'ro!e"ure ho$ the test#mony of a "efense
$#tness #s !on"#t#onally ta6en #f allo$e" %y the !ourt1
?nder ection *, of Rule **2, which provides how e<amination of
defense witness before trial is made, that is, if the court is satisfed that
the conditional e<amination of a defense witness is necessary, the
following steps shall be ta#en+
*. The court shall issue an order directing that the witness be
e<amined at a specifc date, time and place, and a copy of the order be
served on the prosecutor at least three ',( days before the scheduled
e<amination.
1%1
-. The e<amination shall be ta#en before a judge, or if not
practicable, before a member of the Car in good standing so designated
by the judge in the order, or if the order be made by a court of superior
jurisdiction, before an inferior court to be designated in the order.
,. The e<amination shall proceed notwithstanding the absence of
the prosecutor provided he was duly notifed of the hearing.
.. " written record of the testimony shall be ta#en.
&. %f the court is satisfed, upon proof or oath, that a material
witness will not testify when re5uired, it may, upon motion of either
party, order the witness to post bail in such amount as it may deem
proper. 'ection *., Rule **2.(
:. ?pon refusal to post bail, the court shall commit him to prison
until he complies or is legally discharged after his testimony has been
ta#en. '%bid.(
Section )5. 0;amination of .itness for the prosecution. "
<hen #t sat#sfa!tor#ly a''ears that a $#tness for the
'rose!ut#on #s too s#!6 or #n:rm to a''ear at the tr#al as
"#re!te" %y the !ourt/ or has to lea&e the Ph#l#''#nes $#th no
"e:n#te "ate of return#n./ he may forth$#th %e !on"#t#onally
e+am#ne" %efore the !ourt $here the !ase #s 'en"#n.2 Su!h
e+am#nat#on/ #n the 'resen!e of the a!!use"/ or #n h#s a%sen!e
after reasona%le not#!e to atten" the e+am#nat#on has %een
ser&e" on h#m/ shall %e !on"u!te" #n the same manner as an
e+am#nat#on at the tr#al2 )a#lure or refusal of the a!!use" to
atten" the e+am#nat#on after not#!e/ shall %e "eeme" a $a#&er2
The statement ta6en may %e a"m#tte" #n %ehalf of or a.a#nst
the a!!use"2
C O M M E N T S
%n li#e manner as the accused, the prosecution may also apply and
see# the perpetuation of the testimony of a witness by means of a
conditional e<amination, provided the following conditions concur+
*. The prosecution witness is too sic# or infrm to appear at the
trial as directed by the court, or he is scheduled to leave the Philippines
with no defnite date of returning9
1%%
-. Ais e<amination is conditionally ta#en, which should be before
the court where the case is pending.
,. uch e<amination must be made in the presence of the
accused,

.. hould the accused fails or refuses to attend the e<amination
despite the notice, his absence shall be ta#en as a waiver.
&. The statement ta#en may be admitted in behalf of or against
the accused.
The notice to the accused of the conditional e<amination of a
prosecution witness is mandatory, but his right to be present in such
e<amination is optional and may be waived by the accused. uch
mandatory notice is pursuant to the constitutional right of the accused
to be present in all stages of the proceedings. Aowever, he has the
personal right to waive his presence. 4onetheless, where the accused in
under preventive imprisonment, his attendance and presence in the
conditional e<amination of a prosecution witness cannot be dispensed
with.
Su''ose the 'rose!ut#on $#tness sou.ht to %e
!on"#t#onally e+am#ne" #s too s#!6 or #n:rm to a''ear at the
tr#al/ $here shoul" h#s !on"#t#onal e+am#nat#on %e ta6en1
The burden is upon the prosecution to demonstrate the sic#ness
or infrmity of the witness as would prevent him to appear before the
court to testify. uch sic#ness or infrmity should be supported by
medical evidence. The e<amination may be done in the place where the
witness is confned.
Section ). Trial of se/eral accused. 5 <here t$o or more
a!!use" are ,o#ntly !har.e" $#th an o0ense/ they shall %e tr#e"
,o#ntly unless the !ourt/ #n #ts "#s!ret#on an" u'on mot#on of the
'rose!utor or any a!!use"/ or"ers se'arate tr#al for one or more
a!!use"2
C O M M E N T S
The grant of a separate trial where there are two or more accused
is discretionary upon the court. " move for separate trial may be
properly denied by the court where no prejudice is done to any of the
1%8
accused, such as where they have not put up antagonistic defenses
against each other.
Jhere separate trails are granted by the court, it is the duty of the
prosecution to repeat the presentation of all its evidence at the trial of
each accused, unless all the accused are present during the
presentation of the People@s evidence and their respective counsels
have the opportunity to cross e<amine those witnesses.
eparate trial may be granted even after the prosecution has
rested its case, where the interest of justice would be better serve and
no prejudice is done to the cause of the prosecution.
Section )#. Dischar&e of the accused to -e state .itness.
" <hen t$o or more 'ersons are ,o#ntly !har.e" $#th the
!omm#ss#on of an o0ense/ u'on mot#on of the 'rose!ut#on
%efore rest#n. #ts !ase/ the !ourt may "#re!t one or more of the
a!!use" to %e "#s!har.e" $#th the#r !onsent so that they may
%e $#tnesses for the State/ after re*u#r#n. the 'rose!ut#on to
'resent e&#"en!e an" the s$orn statement of ea!h 'ro'ose"
state $#tness at a hear#n. #n su''ort of the "#s!har.e/ #f the
!ourt #s sat#s:e" that3
(a) There #s a%solute ne!ess#ty to the test#mony of the
a!!use" $hose "#s!har.e" #s re*ueste"A
(%) There #s no other "#re!t e&#"en!e a&a#la%le for the
'ro'er 'rose!ut#on of the o0ense !omm#tte"/ e+!e't the
test#mony of sa#" a!!use"A
(!) The test#mony of sa#" a!!use" !an %e su%stant#ally
!orro%orate" #n #ts mater#al 'o#ntsA
(") Sa#" a!!use" "oes not a''ear to %e the most .u#ltyA
an"
(e) Sa#" a!!use" has not at any t#me %een !on&#!te" of
any o0ense #n&ol&#n. moral tur'#tu"e2
E&#"en!e a""u!e" #n su''ort of the "#s!har.e shall
automat#!ally form 'art of the tr#al2 If the !ourt "en#es the
mot#on for "#s!har.e of the a!!use" as state $#tness/ h#s s$orn
statement shall %e #na"m#ss#%le #n e&#"en!e2
1%&
C O M M E N T S
De:ne a state $#tness
" state witness is one of two or more persons jointly charged with
the commission of a crime but who is discharged with his consent as
such accused so that he may be a witness of the tate against his co!
accused.
-*/
" state witness is himself a participes criminis and must have
personal #nowledge of the crime but not the most guilty, and is
discharged from the charge sheet to testify as a witness for the
prosecution.
<hat are the re*u#s#tes to $arrant the "#s!har.e of an
a!!use" to %e ut#l#=e" as a $#tness for the State1
*. The prosecution, before resting its case, should fle a motion
praying for the discharge of one or more accused to be utili)ed as
witness for the tate9
-. The court shall set the motion for hearing and re5uire the
prosecution to present evidence and the sworn statement of the
accused sought to be discharged9
,. The court shall re5uire the defense to show cause why the
motion of the prosecution should not be granted9
. .. %f the court is satisfed that the re5uirements of ection *1 of
Rule **2 are present, namely+
'a( There is absolute necessity for the testimony of the accused whose
discharge is re5uested,
'b( There is no other direct evidence available for the proper prosecution
of the o;ense committed e<cept the testimony of said accused9
'c( The testimony of said accused can be substantially corroborated in
its material points. The testimony of a witness which is not materially
corroborated is not suBcient for conviction.
-*2

218
Pe!$le v. Fe,,e,, 255 SCRA 1&
21&
Ba,,e-! v. San0igan)a*an, 144 SCRA 1%1
180
'd( aid accused does not appear to be the most guilty9
NOTE3 M4ot the most guilty6 is not synonymous
with 3least guilty6. The Rule does not re5uire
the 3least guilty6 but 3not the most guilty6
which signifes that he has not incurred the
highest degree of culpability in terms of par!
ticipation in the commission of the o;ense,
and this is not necessarily e5uated with the
severity of the penalty imposed, such as in cons!
piracy. The rule on participes criminis considers
his actual and individual participation in the com!
mission of the crime.
--0

'e( aid accused has not at any time been convicted by fnal
judgment of any o;ense involving moral turpitude.
Su''ose" the a!!use" su%,e!t of the re*uest to %e
"#s!har.e" to %e a state $#tness has %een !on&#!te" for
another o0ense %y a tr#al !ourt %ut h#s !on&#!t#on #s 'en"#n.
a''eal/ #s he "#s*ual#:e" to %e a state $#tness on the .roun" of
su!h !on&#!t#on1
"n accused is dis5ualifed to be a state witness only if he had
been convicted by fnal judgment. Aence, if at the time his discharge is
sought his conviction is still pending appeal and he gave his testimony
as a state witness before the appellate court renders judgment in the
appeal his conviction by the trial court, which was pending appeal,
cannot serve as ground to dis5ualify him from being a state witness in
the other case, provided all the other re5uirements of ection *1 of the
Rules of Court are present.
Su''ose a !on&#!te" a!!use" $hose !on&#!t#on #s 'en"#n.
a''eal #s allo$e" to test#fy as a state $#tness #n another !ase/
%ut after .#&#n. h#s test#mony as state $#tness the a''ellate
220
Pe!$le v. San0igan)a*an, e- al., ;R 5!#11543&841, J+l* 11, 1&&%' Pe!$le v. Oi4a,, e- al.,
;R 5!. &4555, A+g. 1%, 1&&2' Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
"0.
$$. 542
181
!ourt a;rms h#s !on&#!t#on2 -o$ $#ll su!h a;rman!e of h#s
!on&#!t#on %y the a''ellate !ourt a0e!t h#s earl#er test#mony as
a state $#tness1
%n Gangubat, et al. vs andiganbayan, et al.
--*
the upreme Court
held that where at the time of the discharge of the accused and his
giving testimony as a state witness his previous conviction in another
case was pending appeal, the subse5uent aBrmance of said conviction
by the appellate court will not invalidate his earlier discharge and render
inadmissible his testimony. 'ee also Regalado, Remedial Law
Compendium, $ol. -, *0 Fd., pp. &.-(
Su''ose after the a!!use" has %een "#s!har.e" an"
test#:e" as state $#tness/ #t $as "#s!o&ere" that he has %een
're&#ously !on&#!te" of another o0ense #n&ol&#n. moral
tur'#tu"e2 -o$ $#ll su!h su%se*uent "#s!o&ery of a
"#s*ual#fy#n. fa!tor a0e!t h#s test#mony as state $#tness1
The discharge of the accused who testifed as a state witness,
although his discharge was erroneous because of a previous conviction
for another o;ense involving moral turpitude, which was discovered
after he had already testifed as a state witness, will not a;ect the legal
conse5uences of his erroneous discharge and his competence to testify
as a state witness.
Su''ose" after the a!!use" has %een "#s!har.e" to %e a
state $#tness/ he retra!ts h#s statement #n h#s a;"a&#t an"
refuses to 6ee' h#s 'art of the a.reement/ there%y !om'ell#n.
the 'rose!ut#on to re4#n!lu"e h#m #n the #nformat#on2 May the
'rose!ut#on use a.a#nst su!h a!!use" h#s s$orn statement
!onfess#n. h#s 'art#!#'at#on #n the !omm#ss#on of the o0ense #n
*uest#on1
@es2 Ais confession of participation in the commission of the
crime under judicial investigation is admissible against him. Ais
immunity operates only where his failure to testify for the prosecution
was not imputable to his fault, but to the fault of the prosecution or to
other factors beyond his control, because in such eventuality, the
accused is deemed to have complied with his underta#ing which led to
his discharge.
221
135 SCRA %32
182
<hat are the le.al e0e!ts of the "#s!har.e of an a!!use" to %e
a $#tness for the State1
*. %f the court grants the motion, the evidence in support of the
discharge of the accuse automatically forms part of the trial.
-. The discharge of the accused operates as an ac5uittal and a
bar to further prosecution against him for the same o;ense,
---
provided
he complies with what is incumbent upon him under the terms of his
discharge.

,. The discharge of the accused gives him the right to apply for
protection under the witness protection program.
.. %f the court denies the motion to discharge the accused to be a
state witness, his sworn statement shall not be admissible in evidence
against him.
--,
-o$ $#ll error #n !har.#n. the a!!use" $#th the 'ro'er
o0ense a0e!t the !r#m#nal 'ro!ee"#n.s1
Jhen it becomes manifest at any time before judgment that a
mista#e has been made in charging the proper o;ense and the accused
cannot be convicted of the o;ense charge or for other o;ense
necessarily included therein, the accused shall not be discharged from
custody if there appears good cause to detain him. %n such case, the
court shall commit the accused to answer for the proper o;ense and
dismiss the original case upon the fling of the proper information.
--.

The procedure where mista#e has been made in charging the
accused with the proper o;ense+ 'a( the accused is not discharged, but
the court shall order the prosecution to fle another information charging
the proper o;ense9 'b( in the meantime, the court shall commit the
accused to answer the proper o;ense9 'c( after the new information has
been fled charging the proper o;ense, the court shall dismiss the frst
information.
222
Se. 18, R+le 11&
223
Se. 1%,/)i0,
224
#e. 1&, /)i0.
183
The a!!use" $as !har.e" $#th ra'e2 ut #n the !ourse of
the tr#al #t %e!ame a''arent that the !r#me !omm#tte" %y the
a!!use" $as *ual#:e" se"u!t#on2 -en!e/ the tr#al !ourt #ssue"
an or"er "#re!t#n. the 'rose!ut#on to :le another #nformat#on
!har.#n. the a!!use" $#th the 'ro'er o0ense an" the "#sm#ssal
of the #nformat#on for ra'e u'on the :l#n. of the 'ro'er
#nformat#on/ .#&#n. the 'rose!ut#on :&e "ays from not#!e to
!om'ly2 Mean$h#le/ the !ourt also or"ere" the a!!use" to
rema#n #n !usto"y to ans$er for the 'ro'er o0ense2 -o$e&er/
the :&e4"ay 'er#o" la'se" $#thout the .o&ernment 'rose!utor
a%le to :le the #nformat#on for *ual#:e" se"u!t#on2 So the !ourt
or"ere" the #nformat#on for ra'e "#sm#sse" an" release" the
a!!use" from !usto"y2 Ten "ays after the a!!use" has %een
release"/ the .o&ernment 'rose!utor :le" an #nformat#on/ th#s
t#me for *ual#:e" se"u!t#on/ a.a#nst the same a!!use"/ nam#n.
the same !om'la#nant $ho s#.ne" her !onsent on the
#nformat#on2 The "efense mo&e" to *uash the se!on"
#nformat#on on the .roun" of "ou%le ,eo'ar"y/ ar.u#n. that the
:rst !ase a.a#nst h#m $as "#sm#sse" or term#nate" $#thout h#s
!onsent2 If you are the ,u".e ho$ $#ll you resol&e the "efense
mot#on to *uash1
The rule on double jeopardy does not apply in this case, because
the frst o;ense charged for which the accused has been placed in
jeopardy of being convicted is not the same o;ense charged in the
second information, nor is it necessarily included in the frst information,
The protection against double jeopardy re5uires that the o;ense
charged in the frst information and in the second information be the
same. %f the o;enses charged were di;erent, there could be no double
jeopardy. The term 3the same o;ense6 includes an attempt to commit
the same, or a frustration thereof, or for any o;ense which includes or is
necessarily included in the o;ense charged in the former complaint or
information.
--&

Se!t#on 982 ,ppointment of actin& prosecutor. - <hen a
'rose!utor/ h#s ass#stant or "e'uty #s "#s*ual#:e" to a!t "ue to
any .roun"s state" #n Se!t#on 7 of Rule 7E> or for any reason/
the 'rose!utor shall !ommun#!ate $#th the Se!retary of (ust#!e
#n or"er that the latter may a''o#nt an a!t#n. 'rose!utor2
C O M M E N T S
225
;!n3ale# v. C!+,- !. A$$eal#, 232 SCRA 11%
184
This section should not be confused with ection & of Rule **0
regarding the designation of the private prosecutor to prosecute the
criminal action where the public prosecutor could not prosecute the
action due to heavy schedule of wor# or lac# of public prosecutor. This
section contemplates that other prosecutors are available.
Se!t#on 972 0;clusion of the pu-lic. "The ,u".e may/ motu
proprio/ e+!lu"e the 'u%l#! from the !ourt room #f the e&#"en!e
to %e 'ro"u!e" "ur#n. the tr#al #s o0ens#&e to "e!en!y or 'u%l#!
moral2 -e also may/ on mot#on of the a!!use"/ e+!lu"e the
'u%l#! from the tr#al e+!e't !ourt 'ersonnel an" the !ounsel of
the 'art#es2
Se!t#on 992 Consolidation of trials of related cases. -
Char.es for o0enses foun"e" on the same fa!ts or form#n. 'art
of a ser#es of o0enses of s#m#lar !hara!ter may %e tr#e" ,o#ntly
at the "#s!ret#on of the !ourt2
C O M M E N T S
This section contemplates the situation where separate
information were fled+ 'a( for several o;enses founded on the same
facts, or 'b( for o;enses which form part of a series of o;enses of similar
character9 and 'c( such separate information may be against the same
or di;erent accused. %n its discretion or upon motion of the prosecution
or the defense, the court may order joint trial.
" civil action may be consolidated with the criminal action
pursuant to ection - of Rule ***, if the civil action is for recovery of
civil liability arising from the crime charged. Cut if the civil liability
arises from other sources of obligation, not from the commission of the
crime charged, consolidation of the civil and the criminal cases is not
proper.
Se!t#on 9E2 Demurrer to e/idence. " After the 'rose!ut#on
rests #ts !ase/ the !ourt may "#sm#ss the a!t#on on the .roun" of
#nsu;!#en!y of e&#"en!e/ (7) on #ts o$n #n#t#at#&e after .#&#n.
the 'rose!ut#on the o''ortun#ty to %e hear"/ or (9) u'on
"emurrer to e&#"en!e :le" %y the a!!use" $#th or $#thout lea&e
of !ourt2
185
If the !ourt "en#es the "emurrer to e&#"en!e :le" $#th
lea&e of !ourt/ the a!!use" may a""u!e e&#"en!e #n h#s "efense2
<hen the "emurrer to e&#"en!e #s :le" $#thout lea&e of !ourt/
the a!!use" $a#&es the r#.ht to 'resent e&#"en!e an" su%m#ts
the !ase for ,u".ment on the %as#s of the e&#"en!e for the
'rose!ut#on2
The mot#on for lea&e of !ourt to :le "emurrer to e&#"en!e
shall s'e!#:!ally state #ts .roun"s an" shall %e :le" $#th#n a
non4e+ten"#%le 'er#o" of :&e (K) "ays after the 'rose!ut#on
rests #ts !ase2 The 'rose!ut#on may o''ose the mot#on $#th#n a
non4e+ten"#%le 'er#o" of :&e (K) "ays from #ts re!e#'t2
If lea&e of !ourt #s .rante"/ the a!!use" shall :le the
"emurrer to e&#"en!e $#th#n a non4e+ten"#%le 'er#o" of ten (78)
"ays from not#!e2 The 'rose!ut#on may o''ose the "emurrer to
e&#"en!e $#th#n a s#m#lar 'er#o" from #ts re!e#'t2
The or"er "eny#n. the mot#on for lea&e of !ourt to :le
"emurrer to e&#"en!e or the "emurrer #tself shall not %e
re&#e$a%le %y a''eal or %y !ert#orar# %efore ,u".ment2
C O M M E N T S
<hat "o you un"erstan" of the term M"emurrer to
e&#"en!eN1
" demurrer to evidence is in the nature of a motion to dismiss on
the ground that the evidence adduced by the prosecution is insuBcient
to pronounce the guilt of the accused as established beyond reasonable
doubt.
%n every criminal prosecution the accused is presumed innocent of
the o;ense imputed on him. To overcome such presumption, the tate
has the burden of proving beyond reasonable doubt all the essential
elements of the crime with which the accused is charged in the
indictment. %n the absence of such degree of proof the accused is
entitled to an ac5uittal regardless of whether his character is good or
bad.
181
Su''ose the !ourt #s not sat#s:e" $#th the su;!#en!y of
the Peo'leRs e&#"en!e to esta%l#sh 'r#ma fa!#e the .u#lt of the
a!!use"/ may #t "#sm#ss the #n"#!tment $#thout any mot#on from
the "efense1
The court has the authority to ta#e the initiative to have the
charge against the accused dismissed, where from its own evaluation of
the evidence, the prosecution fails to establish with moral certitude the
guilt of the accused. Aowever, the court must frst re5uire the
prosecution to show cause why the case should not be dismissed for
insuBciency of its evidence.
May the 'rose!ut#on/ after ha&#n. %een re*u#re" to sho$
!ause $hy the !har.e" a.a#nst the a!!use" shoul" not %e
"#sm#sse" for #nsu;!#en!y of #ts e&#"en!e/ #nstea" mo&e to
'resent a""#t#onal e&#"en!e1
Ies. Fven if the prosecution has already rested its case, it is still
within the discretion of the court to allow the prosecution to present
additional evidence. To deny the move of the prosecution to adduce
additional evidence under the circumstances may result in the denial to
the People of due process of law, warranting the reversal of the
judgment of ac5uittal on the ground of grave abuse of discretion
amounting to lac# of jurisdiction.
--:
The only instance when double
jeopardy will not attach is when the trial court acted with grave of
discretion amounting to lac# or e<cess of jurisdiction.
--1


The same rule applies where it is the defense which fles a
demurrer to evidence. The prosecution may either oppose the
defense@s demurrer to evidence or pray the court for leave to adduce
additional evidence.
<hen may the "efense :le a "emurrer to e&#"en!e1
The defense may, with or without leave of court, fle a demurrer to
evidence after the prosecution has rested its case. %f the accused see#s
leave of court, he must fle his motion for leave of court within a non!
e<tendible period of fve '&( days after the prosecution rests its case,
specifcally alleging the ground that the evidence of the prosecution is
not suBcient to support a judgment of conviction, without the need,
however, of elaboration. The elaboration should be made in the
demurrer to evidence itself.
221
7alenia v. San0igan)a*an, 4%3 SCRA 2%&
22%
Pe!$le v. (an, 125 SCRA 388
18%
The prosecution may oppose the motion of the defense for leave
of court to fle a demurrer to evidence within a non!e<tendible period of
fve '&( days from receipt of the motion for leave of court.
Su''ose the !ourt .rante" lea&e of !ourt to the "efense to
:le a "emurrer to e&#"en!e/ $#th#n $hat 'er#o" shoul" su!h
"emurrer %e :le"1
The demurrer to evidence must be fled within a non!e<tendible
period of ten '*0( days from receipt of the court@s order granting such
leave of court.
The prosecution may oppose the demurrer to evidence within a
similar period of ten '*0( days from receipt of the demurrer to evidence
of the accused.
The defense has the option to attach with its motion for leave of
court the demurrer to evidence itself. This practice is encourage to
obviate delay and to enable the court to determine whether the motion
for leave is impressed with merit.
If h#s "emurrer to e&#"en!e :le" $#th lea&e !ourt #s "en#e"/
the a!!use" "oes not lose h#s r#.ht to a""u!e e&#"en!e #n h#s
%ehalf2 ut su''ose the a!!use" :le" h#s "emurrer to e&#"en!e
$#thout lea&e of !ourt an" the !ourt "en#es h#s "emurrer to
e&#"en!e/ ho$ $#ll su!h "en#al a0e!t the !ause of the a!!use"1
Jhere the defense fles a demurrer to evidence without leave of
court, its denial forecloses the right of the accused to present evidence
in his behalf, and the court may proceed to render judgment on the
basis of the evidence o;ered by the prosecution.
Su''ose the !ourt .rants the "emurrer to e&#"en!e :le"
%y the a!!use" an" "#sm#sses the !r#m#nal a!t#on2
Su%se*uently/ ho$e&er/ the 'rose!ut#on :le" another
#nformat#on for the same o0ense a.a#nst the same a!!use"2
The "efense mo&es to *uash the se!on" #nformat#on on the
.roun" of "ou%le ,eo'ar"y2 The 'rose!ut#on o''oses the
188
mot#on to *uash !la#m#n. that as the "#sm#ssal of the :rst
#nformat#on for the same o0ense $as u'on mot#on of the
a!!use"/ an" therefore/ $#th h#s !onsent/ "ou%le ,eo'ar"y "oes
not set #n2 If you $ere the ,u".e ho$ $#ll you resol&e th#s
#n!#"ent1
The motion to 5uash the second information should be granted.
"lthough the frst information was dismissed because the demurrer to
evidence fled by the defense and undoubtedly with his consent,
however, such dismissal went into the merits of the case, that is,
because of the insuBciency of the evidence of the People to establish
beyond reasonable doubt the guilt of the accused and to sustain a
judgment of conviction, the indictment was dismissed. 8rant of a
demurrer to evidence operates as an ac5uittal on the merits.
--/

May the tr#al !ourt/ althou.h #t susta#ns the "emurrer to
e&#"en!e of the a!!use"/ a",u".e h#m to 'ay !#&#l "ama.es
ar#s#n. from the o0ense !har.e"/ assum#n. that the e&#"en!e of
the 'rose!ut#on #s #nsu;!#ent to susta#n a ,u".ment of
!on&#!t#on/ %ut su!h e&#"en!e a''ears su;!#ent to su''ort an
a$ar" of !#&#l "ama.es1
4o. "n accused whose demurrer to evidence has been sustained
by the trial court has not adduce any evidence in his behalf, either in
the criminal action or in the civil aspect of the case. The e;ect of
sustaining the demurrer to evidence is that the accused is e<onerated
only of the criminal charge, because the evidence of the prosecution did
not measure to the re5uired "uantum of proof beyond reasonable doubt.
Aowever, from such e<oneration does not necessarily follow that he is
civilly liable.
--2
Cecause he has not presented any evidence relative of
the civil damages sought to be recovered from him by the victim. To
adjudge the accused liable for civil damages under these circumstances
would amount to denial of his right to due process of law.
-,0

228
Pe$le v. (an, 125 SCRA 388
22&
230
Sala3a, v. Pe!$le, e- al., ;R 5!. 151&31, Se$-. 23, 2003
18&
After the 'rose!ut#on an" the "efense ha&e reste" the#r
res'e!t#&e !ases/ an" the !ourt has ren"ere" ,u".ment of
!on&#!t#on/ may the !ourt reo'en the !ase for the 'ur'ose of
re!e#&#n. further e&#"en!e1
Ies, pursuant to ection -. of Rule **2, which provides+ 3ection
-.. reopening. - "t any time before fnality of judgment of conviction,
the judge, motu proprio or upon motion, with hearing in either case,
reopen the proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within thirty ',0( days from the order
granting it.6
This authority of the court to reopen proceeding at any time
before fnality of judgment of conviction is consistent with ection &'g(
of Rule *,&, which grants the court with inherent power to amend and
control its process and order so as to ma#e them conformable to law
and justice.
<hat are the essent#al 're4!on"#t#ons to ,ust#fy the
reo'en#n. of the 'ro!ee"#n.s #n a !r#m#nal !ase1
*. The reopening must be ordered by the court, either motu
proprio or upon motion of either party9
-. %f judgment has been already rendered, the same must be one
of conviction but has not become fnal9
,. The reopening of the case, whether motu proprio or upon
motion, should be set for hearing9
.. The purpose of reopening is to avoid a miscarriage of justice9
&. The reopened proceedings must be terminated within thirty
',0( days from notice of the order9
:. The reopening of the proceedings should not cause prejudice to
the accused any of his rights..
NOTE3 Reopening the proceedings may also be made before the
court renders judgment, in which case such reopening does not re5uire
the consent of the accused
-,*
or at the instance of any party who can
present additional evidence at such stage.
-,-

231
Pe!$le v. C!ne$i!n, 84 Phil. %8%
232
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 10-h "0., $$. 551
1&0
Rule 798 5 (UDHMENT
Se!t#on 72 1ud&ment: defnition and form. " (u".ment #s
the a",u"#!at#on %y the !ourt that the a!!use" #s .u#lty or not
.u#lty of the o0ense !har.e" an" the #m'os#t#on on h#m of the
'ro'er 'enalty an" !#&#l l#a%#l#ty/ #f any2 It must %e $r#tten #n
the o;!#al lan.ua.e/ 'ersonally an" "#re!tly 're'are" %y the
,u".e an" s#.ne" %y h#m an" shall !onta#n !learly an" "#st#n!tly
a statement of fa!ts an" la$ u'on $h#!h #t #s %ase"2
C O M M E N T S
Pursuant to ection : of "rticle R%$ of the *2/1 Constitution, the
national language of the Philippines is Eilipino. "s it evolves, it shall be
further developed and enriched on the basis of e<isting Philippine and
other language.
ubject to provisions of law and as the Congress may deem
appropriate, the 8overnment shall ta#e steps to initiate and sustain the
use of Eilipino as a medium of oBcial communication and as language of
instruction in the educational system.
ection 1 of the same "rticle, further provides that for purposes of
communication and instruction the oBcial language of the Philippines
are Eilipino and, until otherwise provided by law, Fnglish.
The regional languages are the au<iliary oBcial languages in the
region and shall serve as au<iliary media of instruction therein.
panish and "rabic shall be promoted on a voluntary and optional
basis.
ection 2 of said "rticle, on the other hand, states that the
Congress shall establish a national language commission composed of
representatives of various regions and disciplines which shall underta#e,
coordinate and promote researches for development, propagation, and
preservation of Eilipino and other languages.
Se!t#on 92 Contents of the 2ud&ment. " If the ,u".ment #s
of !on&#!t#on/ #t shall state (7) the le.al *ual#:!at#on of the
o0ense !onst#tute" %y the a!ts !omm#tte" %y the a!!use" an"
1&1
the a..ra&at#n. or m#t#.at#n. !#r!umstan!es $h#!h atten"e" #ts
!omm#ss#onA (9) the 'art#!#'at#on of the a!!use" #n the o0ense/
$hether as 'r#n!#'al/ a!!om'l#!e/ or a!!essoryA (E) the 'enalty
#m'ose" u'on the a!!use"A an" (F) the !#&#l l#a%#l#ty or "ama.es
!ause" %y h#s $ron.ful a!t or om#ss#on to %e re!o&ere" from the
a!!use" %y the o0en"e" 'arty/ #f there #s any/ unless the
enfor!ement of the !#&#l l#a%#l#ty %y a se'arate !#&#l a!t#on has
%een reser&e" or $a#&e"2
In !ase the ,u".ment #s of a!*u#ttal/ #t shall state $hether
the e&#"en!e of the 'rose!ut#on a%solutely fa#le" to 'ro&e the
.u#lt of the a!!use" or merely fa#le" to 'ro&e h#s .u#lt %eyon"
reasona%le "ou%t2 In e#ther !ase/ the ,u".ment shall "eterm#ne
#f the a!t or om#ss#on from $h#!h the !#&#l l#a%#l#ty m#.ht ar#se
"#" not e+#st2
C O M M E N T S
-o$ shoul" a ,u".e formulate h#s "e!#s#on1
*. "t the top of the frst page, the judge should indicate his court
including its level, its branch number and the place where it holds its
regular session9
-. The names of the parties+ 3People of the Philippines6 as the
plainti; and the name's( of the accused, the doc#et number, and the
designation by the law of the o;ense charged9
,. The nature of the document or act, that is, whether it is a decision
or an order9
.. " brief narration of the acts or omission imputed on the accused
as indicated in the information or complaint, and the plea's( entered by
the accused's( during arraignment9
&. The court@s fndings of the established facts, that is, the version
which it believes is the truth, based on the evidence9
:. The ratio decidendi& that is, why it believes the version of one
party and rejects the other, the law violated and the applicable
jurisprudence9
1&2
1. The degree of participation of the accused, that is, whether as
principal, accomplice or accessory9
/. %n the decretal or dispositive portion, in case of conviction,
imposing the proper penalty imposable under the law, and the civil
liability of the convict, if any. %n case of ac5uittal, whether there is a
complete failure of the prosecution to prove the commission by the
accused of the o;ense charged, or that the act or omission imputed on
the accused does not constitute a crime, or else that the prosecution
fails to prove the guilt of the accused beyond reasonable doubt9 and
2. The date and signature of the judge.
Su''ose the !ourt a!*u#tte" the a!!use"/ %e!ause h#s
a!ts/ althou.h morally re'rehens#%le/ "o not !onst#tute an
o0ense2 -o$e&er/ the ,u".e stron.ly !r#t#!#=e" the a!ts of the
a!!use" #n the te+t of h#s "e!#s#on an" re'r#man"e" h#m #n the
"#s'os#t#&e 'ort#on thereof2 <as the a!t of the ,u".e le.ally
susta#na%le1
*, The ac5uittal of the accused %s proper, because unless the law
defnes an act or omission as a crime and imposes penalty therefor, he
cannot be adjudge guilty thereof and penali)e, no matter how morally
reprehensible the act may be.
-. The trial court did not overstep the bounds of its jurisdiction
when it merely critici)ed the acts of the accused. The judge may
pronounce the acts committed by the accused as unethical, immoral or
otherwise highly reprehensible, but it could not pronounce them as
constituting an o;ense if there is no law defning such act as criminal
and providing a penalty therefor. %n such a case the court may e<press
its disapproval of those acts to avoid the impression that by ac5uitting
the accused it approves his conduct.
-,,
,. Aowever, as the judgment was for ac5uittal, the court cannot
reprimand the accused in the dispositive portion of its decision,
inasmuch as reprimand is in the nature of a penalty, that is, a public
censure.
-,.
233
Pe!$le v. 2ene#e#, %4 Phil 11&
234
Pe!$le v. A)elle,a, 1& Phil 123
1&3
Se!t#on E2 1ud&ment for t.o or more o'enses. " <hen t$o
or more o0enses are !har.e" #n a s#n.le !om'la#nt or
#nformat#on %ut the a!!use" fa#ls to o%,e!t to #t E)ORE TRIAL/
the !ourt may !on&#!t h#m of as many o0enses as are !har.e"
an" 'ro&e"/ an" #m'ose on h#m the 'enalty for ea!h o0ense/
sett#n. out se'arately the :n"#n.s of fa!t an" la$ #n ea!h
o0ense2
C O M M E N T S
ection , of Rule *-0 provides for the e;ect of failure of the
accused to move to 5uash the complaint or information where either of
them charges more than one o;ense, e<cept when a single punishment
for various o;enses is prescribed by law. ection * of Rule **1 provides
that at any time before entering his plea, the accused may move to
5uash the complaint or information where more than one o;ense is
charged, e<cept when a single punishment for various o;enses is
prescribed by law.
-,&
The failure of the accused to assert any ground of a
motion to 5uash before he pleads to the complaint or information, either
because he did not fle a motion to 5uash or failed to allege the same in
said motion, shall be deemed a waiver of any objections e<cept those
based on the grounds provided for in paragraphs 'a(, 'g( and 'i( of
ection , of Rule **1. 'ec. 2, Rule **1.(
Thus, although as a rule under ection *, of Rule **0 of the Rules
of Court only one '*( o;ense should be charged in a criminal complaint
or information, but if ever duplicity of o;enses is committed, the same
constitutes a ground for a motion to 5uash and failure of the accused to
interpose the objection constitutes a waiver. The trial court may convict
him of as many o;enses as are charged and proved and impose on him
the penalty for each o;ense, setting out separately the fnding of facts
and law in each case.
The accused must raised the issue of duplicity of the o;enses
charged before entering his plea during his arraignment, otherwise he is
deemed to have waived the objection.
The purpose of the Rule prescribing only one o;ense in each
complaint or information is to a;ord the accused the necessary
#nowledge of the e<act charge so that he may not be confused in his
defense.
235
Se. 3D.E R+le 11%
1&4
Se!t#on F2 1ud&ment in case of /ariance -et.een
alle&ation and proof. " <hen there #s &ar#an!e %et$een the
o0ense !har.e" #n the !om'la#nt or #nformat#on an" that
'ro&e"/ an" the o0ense as !har.e" #s #n!lu"e" #n or ne!essar#ly
#n!lu"es the o0ense 'ro&e"/ the a!!use" shall %e !on&#!te" of
the o0ense 'ro&e" $h#!h #s #n!lu"e" #n the o0ense !har.e"/ or
the o0ense !har.e" $h#!h #s #n!lu"e" #n the o0ense 'ro&e"2
Se!t#on K2 When an o'ense includes or is included in
another. " An o0ense !har.e" ne!essar#ly #n!lu"es the o0ense
'ro&e" $hen some of the essent#al elements or #n.re"#ents of
the former/ as alle.e" #n the !om'la#nt or #nformat#on/
!onst#tute the latter2 An" an o0ense !har.e" #n ne!essar#ly
#n!lu"e" #n the o0ense 'ro&e"/ $hen the essent#al #n.re"#ents
of the former !onst#tute or form 'art of those !onst#tut#n. the
latter2
C O M M E N T S
"s a rule a complaint or information must charge only one o;ense,
e<cept when the law prescribes a single penalty for various o;enses
'ec. *,, Rule **0(. "nd where more than one o;ense is charged in the
complaint or information, the defect may be the subject of a motion to
5uash such complaint or information 'ec. ,!f, Rule **1(.
Illustrate no$ Se!t#ons F an" K of Rule 798 o'erate2
%f the accused is charged with murder, but the o;ense proved is
only homicide, he cannot be convicted of murder, but only of homicide.
Jhere the charge is homicide, but the o;ense proved is murder, the
accused cannot be convicted of murder, but only of homicide.
"nother e<ample. Jhere the o;ense charged is less serious
physical injuries, but the o;ense proved is serious physical injuries, the
accused can be convicted only of less serious physical injuries, not of
serious physical injuries although the latter has been proved.
To recap+ *
st
where the o;ense proved is less serious than, and is
necessarily included in, the o;ense charged, as where the o;ense
charges is murder but the o;ense charged is homicide, the accused can
1&5
be convicted only of homicide, the o;ense proved, which is less serious
than, and is necessarily included in, the o;ense charged.
-
nd
. Jhen the o;ense proved is more serious than, and included
the o;ense charged, as when the o;ense proved is serious physical
injuries but the o;ense charged is less serious physical injuries, the
accused can be convicted only of less serious physical injuries, the
o;ense proved, but not of serious physical injuries, the o;ense proved.
Su''ose the a!!use" #s #n"#!te" for mur"er $#th trea!hery
alle.e" #n the #nformat#on as the *ual#fy#n. !#r!umstan!e2
-o$e&er/ the 'rose!ut#on fa#le" to esta%l#she" trea!hery
%eyon" reasona%le "ou%t2 <hat the 'rose!ut#on 'ro&e" $as/
that the !r#me $as !omm#tte" $#th the atten"an!e of the
a..ra&at#n.O*ual#fy#n. !#r!umstan!e of !ruelty $h#!h %rou.ht
a%out a""e" #.nom#ny to the natural e0e!ts of the a!ts2 Tell
ho$ the !ourt shoul" resol&e the !ase2
The court cannot convict the accused of murder, because the
5ualifying circumstance of treachery was not established. The
prosecution has the burden of proving all and every essential facts that
constitute the o;ense charged, including the 5ualifying and aggravating
circumstances. ince the prosecution failed to prove the alleged
5ualifying circumstance of treachery, the court cannot convict the
accused with murder. 4either can the court consider cruelty, because
although proved, it was not alleged in the information. The re5uirement
that the complaint or information must specify the 5ualifying andHor
aggravating circumstance is mandatory if they are to be appreciated by
the court. Jhere the prosecution fails to allege such 5ualifying or
aggravating circumstance in the complaint of information, the court
cannot consider them or any of them even if they have been proved at
the trial.
-,:
=n the other hand, where the crime charged is included in the
o;ense proved, as where less physical injuries was the o;ense charged
in the information but the crime proved was serious physical injuries,
the court cannot convict the accused with serious physical injuries,
although the latter o;ense is proved. "n accused cannot be convicted
of an o;ense not charged in the information. Ae has the constitutional
right to be informed as to the nature of the o;ense with which he is
231
Pe!$le v. Ave, ;. R. 5!. 13%2%48%5, O-. 18, 2002' Pe!$le v. C!#-ale#, ;. R. 5!. 141154851,
Jan. 15, 2002' Pe!$le v. 7illa,, ;. R. 5!. 1323%8, Jan. 18, 2000
1&1
charged before he is put to trial.
-,1
tated in another way, an accused
can be convicted of an o;ense only when it is both charged and proved.
Se!t#on G2 +romul&ation of 1ud&ment. 6<o. made7 " The
,u".ment #s 'romul.ate" %y rea"#n. #t #n the 'resen!e of the
a!!use" an" any ,u".e of the !ourt #n $h#!h #t $as ren"ere"2
-o$e&er/ #f the !on&#!t#on #s for a l#.ht o0ense/ the ,u".ment
may %e 'ronoun!e" #n the 'resen!e of h#s !ounsel or
re'resentat#&e2 <hen the ,u".e #s a%sent or outs#"e the
'ro&#n!e or !#ty/ the ,u".ment may %e 'romul.ate" %y the !ler6
of !ourt2
If the a!!use" #s !on:ne" or "eta#ne" #n another 'ro&#n!e
or !#ty/ the ,u".ment may %e 'romul.ate" %y the e+e!ut#&e
,u".e of the Re.#onal Tr#al Court ha&#n. ,ur#s"#!t#on o&er the
'la!e of !on:nement or "etent#on u'on re*uest of the !ourt
$h#!h ren"ere" the ,u".ment2 The !ourt 'romul.at#n. the
,u".ment shall ha&e the author#ty to a!!e't the not#!e of a''eal
an" to a''ro&e the %a#l %on" 'en"#n. a''ealA 'ro&#"e"/ that #f
the "e!#s#on of the tr#al !ourt !on&#!t#n. the a!!use" !han.e"
the nature of the o0ense from non4%a#la%le to %a#la%le/ the
a''l#!at#on for %a#l !an only %e :le" an" resol&e" %y the
a''ellate !ourt2
The 'ro'er !ler6 of !ourt shall .#&e not#!e to the a!!use"
'ersonally or throu.h h#s %on"sman or $ar"en an" !ounsel/
re*u#r#n. h#m to %e 'resent at the 'romul.at#on of the "e!#s#on2
If the a!!use" #s tr#e" #n a-sentia %e!ause he ,um'e" %a#l or
es!a'e" from 'r#son/ the not#!e to h#m shall %e ser&e" at h#s
last 6no$n a""ress2
If the a!!use" fa#ls to a''ear at the s!he"ule" "ate of
'romul.at#on of ,u".ment "es'#te not#!e/ the 'romul.at#on
shall %e ma"e %y re!or"#n. the ,u".ment #n the !r#m#nal "o!6et
an" ser&#n. a !o'y thereof at h#s last 6no$n a""ress or throu.h
h#s !ounsel2
If the ,u".ment #s for !on&#!t#on an" the fa#lure of the
a!!use" to a''ear $as $#thout ,ust#:a%le !ause/ he shall lose
the reme"#es a&a#la%le #n these Rules a.a#nst the ,u".ment an"
the !ourt shall or"er h#s arrest2 <#th#n :fteen (7K) "ays from
23%
2a-il0e, J,. v. Ja)#!n, 18 SCRA 451
1&%
'romul.at#on of ,u".ment/ ho$e&er/ the a!!use" may surren"er
an" :le a mot#on for lea&e of !ourt to a&a#l of these reme"#es2
-e shall state the reasons for h#s a%sen!e at the s!he"ule"
'romul.at#on an" #f he 'ro&es that h#s a%sen!e $as for a
,ust#:a%le !ause/ he shall %e allo$e" to a&a#l of sa#" reme"#es
$#th#n :fteen (7K) "ays from not#!e2
C O M M E N T S
Promulgation of judgment is the oBcial proclamation or
announcement of the decision of the court. Jhat must be promulgated
is the complete te<t of the decision. %n a criminal case, promulgation of
the decision cannot ta#e place until the cler# of court received it and
enters it into the criminal doc#et boo#. %t follows that when the judge
mails his decision through the cler# of court, it is not promulgated on
the date of mailing but after the cler# of court enters the same in the
criminal doc#et boo#.
Su''ose the ,u".e $ho 'ersonally 're'are" an" $rote h#s
"e!#s#on #n a !r#m#nal !ase set #t for 'romul.at#on on (uly 72
-o$e&er/ #n the e&en#n. of (une E8 the ,u".e 'onente "#e" an"
$as/ therefore/ una%le to re'ort on the follo$#n. "ay2 The !ler6
of !ourt a"&#se" the 'a#r#n. ,u".e a%out the a%sen!e of the
,u".e 'onente/ not a$are of h#s "eath the 're&#ous n#.ht/ an"
re*ueste" the 'a#r#n. ,u".e to 'romul.ate the "e!#s#on2 Also
not a$are of the "em#se of the ,u".e 'onente/ the 'a#r#n. ,u".e
'romul.ate" the "e!#s#on2 <as the 'romul.at#on &al#" an"
%#n"#n.1
To be valid, the judgment must be promulgated during the
incumbency of the judge who prepared and signed it. Jhere on the date
of actual promulgation, said judge has ceased to be so, for any reason,
the judgment can no longer be validly promulgated.
-,/
Aowever, where this issue is raised only after an adverse decision
of the Court of "ppeals has been promulgated, such jurisdictional defect
will be disregarded in the interest of justice,
-,2
based on the e;ect of
estoppel by laches.
-.0
238
Ji4ene3 v. Re$+)li, e- al., ;.R. 5!. L82452&, Fe). 1%, 1&18' Jan0a*an v. R+i3, ;.R. 5!. L8
3%4%1, Jan. 25, 1&80
23&
7e,a, e- al. v. Pe!$le, e- al., ;.R. 5!. 31218, Fe). 1, 1&%0
240
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
Rev. "0. $$. 512
1&8
If the ,u".ment #s for !on&#!t#on an" the fa#lure of the
a!!use" to a''ear at the 'romul.at#on $as $#thout ,ust#:a%le
reason he shall lose the reme"#es a&a#la%le un"er the Rules
a.a#nst the ,u".ment an" the !ourt shall or"er h#m arreste"2
<hat are these reme"#es $h#!h the a!!use" lost1
*. The remedy to move for the reopening of the proceedings
under
ection -. of Rule **29
-. The remedy of appeal from the adverse judgment9 and
,. The remedy to move for new trial or reconsideration.
-o$ may the a!!use" %e rel#e&e" from the a"&erse e0e!ts
of h#s non4a''earan!e at the 'romul.at#on of ,u".ment1
Jithin ffteen '*&( days from promulgation of judgment, the
accused may+ '*( surrender himself, and '-( fle a motion for leave of
court to avail of the lost remedies under the Rules on Criminal
Procedure,
%n his motion for leave of court, the accused should state the
reasons justifying his absence at the scheduled promulgation, and prove
at the hearing of his motion the justifable cause for his absence. %f the
court is satisfed that the failure of the accused to appear at the
promulgation of the judgment against him is justifed by the
circumstances, he shall be allowed to avail of the remedies allowed him
by the Rules of Court.
Is #t essent#al that #n the 'romul.at#on of ,u".ment the
a!!use" shoul" %e 'ersonally ass#ste" %y !ounsel1
The absence of counsel of the accused during the reading of the
judgment will not a;ect the validity of the promulgation. The
promulgation of judgment is valid if the decision is read in the presence
of the accused and any judge of the court in which it is rendered. Cut if
the judgment is conviction for light o;ense, the same may be
1&&
promulgated and read to the counsel or representative of the
accused.
-.*
-o$ shoul" the a!!use" %e not#:e" of an a"&erse ,u".ment
$here he fa#ls to a''ear at #ts 'romul.at#on "es'#te "ue not#!e1
The accused is deemed notifed of the adverse decision
promulgated in his absence upon its recording in the criminal doc#et
boo# and serving him with a copy at his last #nown address or thru his
counsel. To relieve of the adverse e;ects thereof, his remedy is to
surrender and fle a motion for leave of court to avail of the remedies
allowed under the Rules of Court, both of which must done within ffteen
'*&( days from the promulgation of judgment. Ae should state in his
motion the reasons why he failed to appear at the scheduled
promulgation and prove the factual basis thereof at the hearing. %f the
court is satisfed that his absence was for some justifable cause, he
shall be allowed to avail said remedies within ffteen '*&( days from
notice.
-.-
The a!!use" $as !on&#!te" for mur"er2 (u".ment $as
'romul.ate" #n a-sentia. Co'y of the ,u".ment $as ser&e" on
the a!!use" #n h#s last 6no$n a""ress an" on the "efense
!ounsel2 ut the !ler6 of !ourt fa#le" to re!or" the ,u".ment #n
the "o!6et %oo62 The !ourt nonetheless or"ere" the a!!use"
arreste"2 On the 9K
th
"ay after 'romul.at#on of the ,u".ment/
the a!!use" a''eare" an" :le" a not#!e of a''eal2 The !ourt/
ho$e&er/ "#sallo$e" the a''eal an" or"ere" the a!!use"
arreste"2 Is the tr#al !ourt !orre!t #n #ts a!t#on1
4o. The &
th
paragraph of ection :, Rule *-0 re5uires that the
judgment promulgated in absentia must be recorded in the criminal
doc#et. This re5uirement is mandatory and if not complied with. Eor
this reason the promulgation is not valid and the accused is deemed not
served and notifed of the decision. Aence, the judgment does not
become fnal.
-.,
241
;!n3ale# v. P,e#i0ing J+0ge, e-., 181 SCRA 101
242
Pa#+a v. C!+,- !. A$$eal#, ;.R. 5!. 140243, De. 14, 2000
243
/)i0.' "#-,a0a v. Pe!$le, ;.R. 5!. 1123%1, A+g. 25, 2005
200
Se!t#on >2 >odifcation of 2ud&ment. " A ,u".ment of
!on&#!t#on may/ u'on mot#on of the a!!use"/ %e mo"#:e" or set
as#"e %efore #t %e!omes :nal or %efore a''eal #s 'erfe!te"2
E+!e't $here the "eath 'enalty #s #m'ose"/ a ,u".ment
%e!omes :nal after the la'se of the 'er#o" for 'erfe!t#n. an
a''eal/ or $here the senten!e has %een 'art#ally or totally
sat#s:e" or ser&e"/ or $hen the a!!use" has $a#&e" #n $r#t#n.
h#s r#.ht to a''eal/ or has a''l#e" for 'ro%at#on2
C O M M E N T S
"fter a judgment of conviction has been promulgated, the accused
may move to have the same modifed or set aside. This section does
not provide for the grounds where the judgment may be modifed or set
aside, but it is believed that the accused may premise his motion on any
ground when the interest of justice would be better served, as where a
miscarriage of justice would be avoided.
<hen "oes a ,u".ment of !on&#!t#on %e!ome :nal1
" judgment of conviction becomes fnal+ '*( when the period for
appeal has e<pired and no appeal has been perfected9 '-( when the
accused commences to serve his sentence9 ',( when the accused
e<pressly waives in writing his right to appeal.
Su''ose the a!!use" $as !on&#!te" of hom#!#"e an"
senten!e" to a 'r#son term an" to 'ay the he#rs of the &#!t#m
!#&#l "ama.es2 The a!!use" e+'ressly $a#&e" #n $r#t#n. h#s
r#.ht to a''eal an" !ommen!e" ser&#n. h#s senten!e2 The he#rs
of the &#!t#m/ ho$e&er/ $ere not sat#s:e" $#th the amount
a$ar"e" %y the tr#al !ourt an"/ therefore/ a''eale" from the
,u".ment2 The a!!use" mo&e" to "#sm#ss the a''eal on the
.roun" that the ,u".ment sou.ht to %e a''eale" has %e!ome
:nal2 If you $ere the ,u".e ho$ $#ll you resol&e the "efense
mot#on to "#sm#ss the a''eal1
The judgment has become fnal only with respect to the criminal
aspect of the case, but not with regard to the civil award. The supposed
inade5uacy of the award may be challenged by means of appeal on the
201
ground that it is not commensurate with the gravity of the injuries
arising from the o;ense, provided that the appeal on the civil aspect of
the case is perfected within the prescribed period and is limited only to
civil liability.
-..
Se!t#on L2 0ntry of 2ud&ment. " After ,u".ment has %e!ome
:nal/ #t shall %e entere" #n a!!or"an!e $#th Rule EG2
ection - of Rule ,: provides that if no appeal or motion for new
trial or motion for reconsideration is fled within the time provided in the
Rules of Court, the judgment or fnal order shall forthwith be entered by
the cler# in the boo# of entries of judgment. The date of fnality of the
judgment or fnal order shall be deemed to be the date of its entry. The
entry shall contain the dispositive part of the judgment or fnal order
and shall be signed by the cler#, with his certifcation that such
judgment or fnal order has become fnal and e<ecutory.
<hat #s an entry of ,u".ment1
"n entry of judgment is the certifcation of the Cler# of Court that
on a certain date the court named therein, together with the title of the
case, its doc#et number and its nature, rendered a decision the decretal
portion of which is 5uoted, and that on the date certifed therein the
same has become fnal and e<ecutor.
The entry of judgment is signed by the Cler# of Court and bears
the seal of the court. %t is then complied with the other entries of
judgment on monthly basis for easy retrieval when needed.
Se!t#on B2 0;istin& pro/isions &o/ernin& suspension of
sentence: pro-ation: and parole not a'ected -y this 9ule. "
Noth#n. #n th#s Rule shall a0e!t any e+#st#n. 'ro&#s#ons #n the
la$s .o&ern#n. sus'ens#on of senten!e/ 'ro%at#on or 'arole2
244
Be,na,0! v. C!+,- !. A$$eal#, 1&0 SCRA 13
202
RULE 797 5 NE< TRIAL OR RECONSIDERATION
Se!t#on 72 $e. trial or reconsideration. " At any t#me
%efore a ,u".ment of !on&#!t#on %e!omes :nal/ the !ourt may/
on mot#on of the a!!use" or at #ts o$n #nstan!e %ut $#th the
!onsent of the a!!use"/ .rant a ne$ tr#al or re!ons#"erat#on2
Se!t#on 9/ @rounds for a ne. trial. " The !ourt shall .rant
a ne$ tr#al on any of the follo$#n. .roun"s3
(a) That errors of la$ or #rre.ular#t#es 're,u"#!#al to the
su%stant#al r#.hts of the a!!use" ha&e %een !omm#tte" "ur#n.
the tr#alA
(%) That ne$ an" mater#al e&#"en!e has %een "#s!o&ere"
$h#!h the a!!use" !oul" not $#th reasona%le "#l#.en!e ha&e
"#s!o&ere" an" 'ro"u!e" at the tr#al an" $h#!h #f #ntro"u!e"
an" a"m#tte" $oul" 'ro%a%ly !han.e the ,u".ment2
Se!t#on E2 @rounds for reconsideration. " The !ourt shall
.rant re!ons#"erat#on on the .roun"s of errors of la$ or fa!t #n
the ,u".ment $h#!h re*u#res no further 'ro!ee"#n.s2
C O M M E N T S
203
"t any time after judgment of conviction has been rendered but
before the same becomes fnal, the court may grant new trial, upon
motion of the accused or on its own initiative but with the consent of the
accused, on the following grounds+
*. That errors of law or irregularities prejudicial to the substantial
rights of the accused have been committed during the trial9
-. That new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and
produced at the trial and which if introduced and admitted would
probably change the judgment.
"lso in the same to#en, the court may, upon motion of the
accused or on its own initiative, reconsider its judgment, when it
appears that errors of law or fact have been committed in its judgment
which re5uires no further proceedings.
<hat are the "#0eren!es %et$een reo'en#n. of
'ro!ee"#n.s un"er se!t#on 9F of Rule 77B an" se!t#ons 9(a) an"
E of Rule 7971
*. ?nder ection -. of Rule **2, the reopening of the proceedings
may be underta#en before or after judgment, provided in case of the
latter before the judgment of conviction has become fnal. ?nder Rule
*-*, a new trial or a reconsideration may be granted only after a
judgment of conviction has been rendered and before the same
becomes fnal9
-. ?nder ection -. of Rule **2, the proceedings which has been
closed may be reopened whenever the broad interest of justice re5uires
it, that is, in order to avoid a miscarriage of justice. ?nder ection - of
Rule *-*, new trial may be granted on the ground that errors of law or
irregularities have been committed during the trial, which are prejudicial
to the substantial rights of the accused, while ection , such errors of
law or fact must be committed and must appear from the te<t of the
decision, which re5uires no further proceedings9 but under -. of Rule
**2, the case is set for further proceedings.
204
,. ?nder ection -'b( of Rule *-*, only new and material
evidence discovered by the accused after judgment of conviction,
which he could not, even with the e<ercise of reasonable diligence,
have discovered and produced at the trial, while under ection -. of
Rule **2, forgotten evidence would li#ely result in a miscarriage of
justice.
4ote, however, that all these remedies must be pursued before the
judgment of conviction becomes fnal.
The :rst .roun" of ne$ tr#al un"er Se!t#on 9 of Rule 797/
refers to errors of la$ or #rre.ular#t#es $h#!h are 're,u"#!#al to
the su%stant#al r#.hts of the a!!use"2 Se!t#on E/ on the other
han"/ refers to errors of la$ of fa!ts #n the ,u".ment2 Are there
any "#0eren!e %et$een these se!t#ons of the Rule1
The frst ground for new trial under ection - refers to errors or
irregularities committed during the trial, that is, before judgment of
conviction is rendered. The phrase 3during the trial6 covers the period
from the arraignment to the proceedings before judgment of conviction
is rendered. This means that the phrase covers not only the reception
of the parties respective evidence but to every stage of the case prior to
the rendition of the judgment. "ny error committed during this period,
such as holding of trial despite objection of the accused regarding the
absence of preliminary injunction, or where the accused was denied the
assistance of a competent counsel, or where the accused was not given
at least ffteen '*&( days to prepare for trial, are errors of law or
irregularities which are prejudicial to the substantial rights of the
accused. To correct these errors of law or irregularities, the proceedings
have to be set aside and vacated, and another trial must be conducted
all over again.
" motion for reconsideration under ection ,, on the other hand,
loo#s into the errors of law or fact intrinsic in the conte<t of the decision.
They should appear within the te<t of the decision and can be corrected
without conducting further proceedings in the case. The purpose is
simply to reconsider and correct the erroneous pronouncement and
conclusion of the law or fndings of fact, to ma#e them conformable to
the applicable law and jurisprudence andHor the facts established in the
evidence. Thus, to correct these errors re5uires no further proceedings
or trial.
<hat fa!tors must the a!!use" 'resent to the !ourt #n
or"er that h#s mot#on for ne$ tr#al on the .roun" of ne$ly
205
"#s!o&ere" e&#"en!e may mer#t fa&ora%le !ons#"erat#on %y the
!ourt1
The accused must show to the court the following+
*. That the newly discovered evidence was not #nown to the
accused during the trial9
-. That he discovered and became aware of such evidence
only after the trial has been conducted9
,. That he could not have discovered such evidence and
produce it during the trial even with the use of reasonable diligence9
.. That the newly discovered evidence is of such weight that if
admitted would probably change the judgment and the result of the
case.
H#&e the .roun"s $h#!h $#ll ,ust#fy the "en#al of a mot#on
for ne$ tr#al %ase" on ne$ly "#s!o&ere" e&#"en!e2
*. The newly discovered evidence is merely impeaching, or
corroborative, or cumulative9
-. The alleged newly discovered evidence is inherently
improbable9
,. The newly discovered evidence consists merely of recantation
of the prosecution@s witness, unless the judgment is based solely on the
testimony of the recanting witness of the prosecution and there is no
other evidence to sustain the conviction of the accused e<cept the
testimony of the recanting witness.
<hen #s an alle.e" ne$ly "#s!o&ere" e&#"en!e merely
#m'ea!h#n./ !orro%orat#&e/ or !umulat#&e1
*. Fvidence is impeaching when it contradicts the evidence of the
adverse party, or refers to the general reputation of the witness for
truth, honesty or integrity which is bad, because such #ind of evidence
does not a;ect the whole probative value of the evidence against the
accused.
201
-. Fvidence is corroborative where it is an additional evidence of a
di;erent #ind and character tending to prove the same point. uch
evidence will not materially improve the position of the accused and will
not change the result of the case.
,. Cumulative evidence refers to evidence of the same #ind and
character as that already given and tends to prove the same
proposition.
NOTE3 Aowever, in the case of People v. "mparado
-.&
, where after
the judgment of conviction rendered by the trial court was aBrmed by
the upreme Court, the accused fled a motion for ne' trial on the
ground of ne'l% disco$ered e$idence and proposed the testimonies of
"ntonio Cachin, >r. and Ganuel Aenry "u)a, who averred that they were
the frst persons to render assistance to the victim immediately after the
stabbing incident, and which if admitted would tend to contradict the
version of the alleged eyewitness Rogelio Patangan, whose testimony
was given full faith and credence by the court, the upreme Court held
that if the two new witnesses of the defense is allowed to testify in a
new trial, they would rebut the claim of Rogelio Patangan that he was
present at the scene of the crime. %f the testimonies of Cachin and "u)a
were true, then the version of the prosecution might perforce fail and
that of the defense prevail. Conse5uently, the judgment of conviction
could be reversed, or at the very least, modifed. The proposed
testimonies of "ntonio Cachin, >r. and Aenry "u)a were in the nature of
impeaching evidence, but their testimonies were admitted at the new
trial.
Fvidently, the upreme Court was moved by the paramount
interest of justice and avoid punishing a person for an o;ense he did not
commit. The act of the upreme Court is based on ection &'g( of Rule
*,& that every court has the power to amend and control its processes
and orders so as to ma#e them conformable to law and justice.
Se!t#on F2 Borm of motion and notice to the prosecutor. "
The mot#on for ne$ tr#al an" re!ons#"erat#on shall %e #n $r#t#n.
an" shall state the .roun" on $h#!h #t #s %ase"2 If %ase" on
ne$ly "#s!o&ere" e&#"en!e/ the mot#on must %e su''orte" %y
a;"a&#ts of $#tnesses %y $hom su!h e&#"en!e #s e+'e!te" to %e
.#&en or %y "uly authent#!ate" !o'#es of the "o!uments $h#!h
are 'ro'ose" to %e #ntro"u!e" #n e&#"en!e2 Not#!e of the
245
151 SCRA %12
20%
mot#on for ne$ tr#al or re!ons#"erat#on shall %e .#&en to the
'rose!utor2
C O M M E N T S
" motion for new trial or reconsideration must observe the
following form+
*. %t must be in writing and a copy thereof served on the prosecutor9
-. The motion shall state the ground on which it is based9
,. %f based on newly discovered evidence consisting of the testimony
of witnesses, the motion must be supported by their aBdavits9
.. %f the motion is for new trial based on newly discovered
documents, which are proposed to be introduced in evidence,
authenticated copies thereof should be attached to the motion.
Se!t#on K2 <earin& on motion. " <here a mot#on for ne$
tr#al !alls for resolut#on of any *uest#on of fa!t/ the !ourt may
hear e&#"en!e thereon %y a;"a&#ts or other$#se2
C O M M E N T S
The hearing is only for the purpose of assisting the court to
determine whether the motion for new trial on the ground of newly
discovered evidence should be granted or denied.
Is a;"a&#t of mer#ts an essent#al re*u#rement of a mot#on
for ne$ tr#al #n !r#m#nal !ases1
4o. ?nli#e in civil cases, the absence of an aBdavit of merits in a
motion for new trial in criminal cases is not a fatal defect and be cured
by the testimonial evidence presented at the new trial.
-.:
Se!t#on G2 0'ect of &rantin& a ne. trial or reconsideration.
" The e0e!ts of .rant#n. of a ne$ tr#al or re!ons#"erat#on are
the follo$#n.3
241
Pa,e0e#, e-. v. B!,Fa, e-. e- al., 3 SCRA 4&5
208
(a) <hen a ne$ tr#al #s .rante" on the .roun" of errors
of la$ or #rre.ular#t#es !omm#tte" "ur#n. the tr#al/ all the
'ro!ee"#n.s an" e&#"en!e a0e!te" there%y shall %e set as#"e
an" ta6en ane$2 The !ourt may/ #n the #nterest of ,ust#!e/ allo$
the #ntro"u!t#on of a""#t#onal e&#"en!e2
(%) <hen a ne$ tr#al #s .rante" on the .roun" of ne$ly
"#s!o&ere" e&#"en!e/ the e&#"en!e alrea"y a""u!e" shall stan"
an" the ne$ly "#s!o&ere" an" the other e&#"en!e as the !ourt
may/ #n the #nterest of ,ust#!e/ allo$ to %e #ntro"u!e" shall %e
ta6en an" !ons#"ere" to.ether $#th the e&#"en!e alrea"y #n the
re!or"2
(!) <hen a re!ons#"erat#on #s .rante" on the .roun" of
errors of la$ or fa!ts #n the ,u".ment/ the ,u".ment shall %e set
as#"e an" &a!ate"/ $#thout reo'en#n. the 'ro!ee"#n.s/ an" the
alle.e" errors of la$ or fa!ts are ree&aluate"2
(") In all !ases/ #f the !ourt .rants ne$ tr#al or
re!ons#"erat#on/ the or#.#nal ,u".ment shall %e set as#"e an"
&a!ate" an" ne$ ,u".ment ren"ere" a!!or"#n.ly2
C O M M E N T S
Su''ose the #nformat#on !har.es the a!!use" $#th a .ra&e
o0ense/ %ut after tr#al on the mer#ts the tr#al !ourt !on&#!te"
h#m $#th less .ra&e o0ense #n!lu"e" #n the o0ense !har.e"2 On
a''eal/ the a''ellate !ourt .rante" the a!!use"/ u'on h#s
mot#on/ ne$ tr#al an" reman"e" the !ase to the !ourt of or#.#n
for further 'ro!ee"#n.s2 At the !on!lus#on of the ne$ tr#al/ the
tr#al !ourt foun" the a!!use" .u#lty of the .ra&e o0ense
or#.#nally #m'ute" on h#m an" senten!e" h#m to the
!orres'on"#n. 'enalty2 May the a!!use" !la#m that he $as
'la!e" #n ,eo'ar"y1
4o. The new trial did not place the accused in double jeopardy for
the same o;ense within the contemplation of the law. The motion of the
accused for new trial amounted to a waiver of the plea of double
jeopardy. Cy as#ing the appellate court that he be tried again for the
same o;ense for which he was charged and his re5uest for new trial
having been granted, he must ta#e the burden or the beneft that goes
with it, and go bac# for new trial of the whole case.
-.1
24%
(,!n! v. U. S., 11 Phil. %21
20&
=nce new trial is granted, the case reverts bac# to its original
status, and the prosecution and the defense are placed in the same
position as they were prior to the frst trial, it being their right and duty
to present evidence until such proceedings are terminated, and the
court renders a new judgment which, in its opinion, is in accordance
with law and justice.

RULE 799 5 APPEAL
Se!t#on 72 Who may appeal. " Any 'arty may a''eal from
a ,u".ment or :nal or"er/ unless the a!!use" $#ll %e 'la!e" #n
"ou%le ,eo'ar"y2
C O M M E N T S
A''eal/ "e:ne"
"ppeal is the process through which the decision of a lower court
or tribunal is elevated for review to a higher court, which may either
aBrm, modify, or reverse the appealed judgment. The appellate court
may aBrm in toto, or aBrm with certain modifcation, or aBrm in part
and reverse in part the judgment subject of the appeal, or reverse
entirely the appealed judgment.
<ho may a''eal2
"s a rule either or both the prosecution and the defense may
appeal from the judgment or fnal order of the trial court. This includes
the private o;ended party. Cut where the People of the Philippines is
the appellant, its appeal may be given due course only if the accused
would not thereby be placed in double jeopardy, as where the purpose
of the People@s appeal is to reverse the lower court@s judgment of
ac5uittal or to increase the penalty imposed on the convict. Goreover, a
judgment of ac5uittal is immediately fnal upon promulgation and
cannot be recalled for correction or amendment as to do so would place
the convict twice in jeopardy for the same o;ense.
The private victim may appeal even after the judgment is either of
conviction or ac5uittal of the accused, but its appeal shall be confned
only on the issue of civil damages, not on the criminal aspect of the
case.
210
"n o;ense produces two types of injuries. The frst causes social
injury which is sought to be repaired by the imposition of the proper
penalty. The other is the personal injury sustained by the private victim
arising from the o;ense charged which is sought to be compensated by
the award of civil damages. The interest of the victim is confned to
such civil award.
<hen may the 'rose!ut#on a''eal1
*. %f the criminal case is dismiss upon motion or with the consent of
the accused, but over the objection of the prosecution.
-. Jhere such dismissal does not amount to an ac5uittal or based
upon consideration of the evidence or on the merits of the case.
,. Jhere the dismissal is based or passed upon by an appellate
court on purely legal 5uestion, such that the case has to be remanded
to the court of origin for further proceedings to determine whether the
accused is guilty or not of the o;ense charged.
-./
Su''ose the a!!use" $as a!*u#tte" of the o0ense !har.e"
on h#m/ %ut the tr#al !ourt om#tte" to 'ronoun!e the !#&#l
l#a%#l#ty of the a!!use"2 May the o0en"e" 'arty a''eal from the
sa#" ,u".ment1
The weight of jurisprudence favors the right of the private
o;ended party to appeal from the judgment which he believes is
adverse to his interest and enforce his right to recover civil damages
from the accused.
Aowever, where the ac5uittal of the accused is based on a fnding
that he committed no wrongful act, that is, he was e<onerated because
he did not commit any o;ense, the o;ended party may contest such
pronouncement of the trial court through the process of appeal.
-.2
248
Pe!$le v. Ci-* !. 2anila, 154 SCRA 125
24&
Pe!$le v. R!* Pa0illa, 12& SCRA 558' Be,na,0! v. CA, ;.R. 5!. 82483, Se$-. 21, 1&&0' Sa0i! v.
R(C, e-., 201 SCRA %44
211
Se!t#on 92 Where to appeal. " The a''eal may %e ta6en as
follo$s3
(a) To the Re.#onal Tr#al Court/ #n !ases "e!#"e" %y the
Metro'ol#tan Tr#al Court/ Mun#!#'al Tr#al Court #n C#t#es/
Mun#!#'al Tr#al or Mun#!#'al C#r!u#t Tr#al CourtA
(%) To the Court of A''eals or to the Su'reme Court/ #n
the 'ro'er !ases 'ro&#"e" %y la$/ #n the !ases "e!#"e" %y the
Re.#onal Tr#al CourtA
(!) To the Su'reme Court/ #n !ases "e!#"e" %y the Court
of A''eals2
Se!t#on E2 <o. appeal is taDen. " The a''eal may %e ta6en
as follo$s3
(7) )rom the :rst le&el !ourts2 5 The appeal to the Regional
Trial Court shall be by fling a notice of appeal with the court which
rendered the judgment or fnal order appealed from and by serving a
copy thereof on the adverse party.
(9) )rom the Re.#onal Tr#al Court to the Court of
A''eals2 5 The appeal to the Court of "ppeals from the Regional Trial
Court in cases decided by the Regional Trial Court in the e<ercise of its
original jurisdiction shall be ta#en by fling a notice of appeal with the
Regional Trial Court which rendered the judgment or fnal order
appealed from and by serving a copy thereof upon the adverse party.
"ppeal to the Court of "ppeals from the judgment of the Regional
Trial Court in the e<ercise of its appellate jurisdiction shall be ta#en by
fling a petition for review with the Court of "ppeals under Rule .-.
(E) A''eal to the Su'reme Court2 5 The appeal to the
upreme Court in cases where the penalty imposed by the Regional Trial
Court is 'death(, reclusion perpetua or life imprisonment, where a lesser
penalty is imposed but for o;enses committed on the same occasion or
which arouse out of the same occurrence that gave rise to the more
serious o;ense for which the penalty of 'death(, reclusion perpetua or
life imprisonment is imposed, shall be by fling a notice of appeal to the
Court of "ppeals in accordance with paragraph - hereof.
212
"ppeal to the upreme Court from the judgment of the Court of
"ppeals is by petition for review on certiorari pursuant to Rule .&.
NOTES3 ". G. 4o. 00!&!0,!C, which too# e;ect =ctober *&,
-00., instead of direct appeal to the upreme Court in cases where the
death penalty, reclusion perpetua or life imprisonment is imposed,
automatic review of the death penalty case, as well as appeals in
reclusion perpetua and life imprisonment, is still the rule, but the appeal
shall be directed to the Court of "ppeals.
Jhere the Court of "ppeals, after reviewing the decision of the
Regional Trial Court imposing the death penalty, aBrms the appealed
judgment, the appellate court, however, shall refrain from entering
judgment but should certify 'elevate( the case to the upreme Court for
its review to determine whether the penalty of death is proper.
Jhere the Regional Trial Court in the e<ercise of its original
jurisdiction imposes a penalty lower than reclusion perpetua or life
imprisonment, but on appeal to the Court of "ppeals, the appellate
Court fnds that the penalty of death, reclusion perpetua or life
imprisonment should be imposed, the appellate Court, following
discussion of the evidence and the law involved, shall render judgment
imposing the penalty of death, or reclusion perpetua or life
imprisonment, but in the case of death penalty, the appellate Court
shall refrain from entering judgment and instead certify the case and
elevate the entire records thereof to the upreme Court for its review.
A''eal from the San"#.an%ayan2 5 7ecisions and fnal orders
of the andiganbayan, where the death penalty is imposed, the decision
or fnal orders are appealed to the upreme Court by automatic review.
%n all other cases, the decision or fnal orders shall be appealable to the
upreme Court by petition for review on certiorari.
Se!t#on F2 Ser/ice of notice of appeal. " If 'ersonal ser&#!e
of the !o'y of the not#!e of a''eal !annot %e ma"e u'on the
a"&erse 'arty or h#s !ounsel/ ser&#!e may %e "one %y re.#stere"
ma#l or %y su%st#tute" ser&#!e 'ursuant to se!t#ons > an" L of
Rule 7E2
Se!t#on K2 Wai/er of $otice. " The a''ellee may $a#&e h#s
r#.ht to a not#!e that an a''eal has %een ta6en2 The a''ellate
!ourt may/ #n #ts "#s!ret#on/ enterta#n an a''eal not$#thstan"#n.
fa#lure to .#&e su!h not#!e #f the #nterests of ,ust#!e so re*u#re2
213
C O M M E N T S
"s a rule, appeals in criminal cases do not ta#e place and are not
considered perfected until after the interested party has personally or
through his counsel fled with the Cler# of Court a written notice
e<pressly stating the appeal.
Aowever, when an accused manifests or gives notice of his
intention to appeal in open court, within ffteen '*&( days from the
promulgation of the decision against him, such verbal manifestation of
his intention to appeal the decision made in open court was held
suBcient and substantial compliance with the Rules.
The appellant@s failure in not serving a written notice of appeal to
the government prosecutor is not a fatal defect which may nullify the
appeal or prejudice the un5uestionable rights of the accused to appeal
against whatever resolution or judgment he might consider prejudicial
to his rights or interests. Jhat is important is that the accused should
be able to e<ercise, at the proper time his right to appeal.
Se!t#on G2 When appeal is to -e taDen. " An a''eal must
%e ta6en $#th#n :fteen (7K) "ays from the 'romul.at#on of
,u".ment or from not#!e of the :nal or"er a''eale" from2 The
'er#o" for 'erfe!t#n. an a''eal shall %e sus'en"e" from the
t#me a mot#on for ne$ tr#al or re!ons#"erat#on #s :le" unt#l the
or"er o&errul#n. the mot#on has %een ser&e" on the a!!use" or
h#s !ounsel from $h#!h t#me the %alan!e of the 'er#o" %e.#ns to
run2
C O M M E N T S
The clear terms of section : leave no room for doubt that the
appeal should be e;ected within ffteen '*&( days from promulgation of
judgment, not from receipt of the written judgment.
-&0
Thus, suppose the judgment of conviction is promulgated on
"ugust -*, ffteen '*&( days therefrom is eptember &. The convicted
accused has until that date, eptember &, to perfect an appeal. %f a
notice of appeal is fled on or before the latter date the appeal is
250
Pe!$le v. (a4ani, 55 SCRA 15%' Lan0ih! v. (an, 8% Phil. 101. (hi# ,+le a$$lie# -! a$$eal#
.,!4 -he San0igan)a*an.
214
deemed perfected, and the court loses its jurisdiction over the case,
both over the record and the subject of the case.
4onetheless, the Rules allow the court to approve bail before the
transmittal of the records to the appellate court despite the perfection
of the appeal. Cut not when the conviction is from a non!bailable to a
bailable o;ense in which case the application for bail may only be acted
upon by the appellate court.
Su''ose the !on&#!te" a!!use"/ %efore the 'er#o" for
a''eal has la'se"/ :le" a mot#on for ne$ tr#al or for
re!ons#"erat#on2 If the tr#al !ourt "en#es the mot#on/ ho$
shoul" the 'er#o" for a''eal %e re!6one" or !om'ute"1
The upreme Court en banc deems it practical to allow the
accused a fresh or another period of ffteen '*&( days to fle the notice
of appeal with the trial court counted from receipt of the order denying
the motion for new trial or the motion for reconsideration.
-&*
=bviously,
however, the new period of ffteen '*&( days may be availed of only if
either a motion for new trial or a motion for reconsideration is fled9
otherwise, the decision becomes fnal and e<ecutor after the lapse of
the original period for appeal.
Se!t#on >2 Transcri-in& and flin& notes of steno&raphic
reporter upon appeal. " +++ +++ +++2
Se!t#on L2 Transmission of papers to appellate court upon
appeal. " +++ +++ +++2
Se!t#on B2 ,ppeal to the 9e&ional Trial Courts. - (a)
<#th#n :&e (K) "ays from 'erfe!t#on of the a''eal/ the !ler6 of
!ourt shall transm#t the or#.#nal re!or" to the a''ro'r#ate
Re.#onal Tr#al Court2
(%) U'on re!e#'t of the !om'lete re!or" of the !ase/
trans!r#'ts an" e+h#%#ts/ the Cler6 of the Re.#onal Tr#al Court
shall not#fy the 'art#es of su!h fa!tA
(!) <#th#n :fteen (7K) "ays from re!e#'t of sa#" not#!e/
the 'art#es may su%m#t memoran"a or %r#efs/ or may %e
re*u#re" %y the Re.#onal Tr#al Court to "o so2 After the
su%m#ss#on of su!h memoran"a or %r#efs/ or u'on the e+'#rat#on
251
6e,,e,a, Re4e0ial Law, 7!l. /7, 200% "0., $$. &%88&%&
215
of the 'er#o" to :le the same/ the Re.#onal Tr#al Court shall
"e!#"e the !ase on the %as#s of the ent#re re!or" of the !ase an"
of su!h memoran"a or %r#efs as may ha&e %een :le"2
Se!t#on 782 Transmission of records in case of death
penalty. " +++ +++ +++2
Se!t#on 772 0'ect of appeal -y any of se/eral accused. "
(a) An a''eal ta6e %y one or more of se&eral a!!use" shall not
a0e!t those $ho "o not a''eal/ e+!e't #nsofar as the ,u".ment
of the a''ellate !ourt #s fa&ora%le an" a''l#!a%le to the latter2
(%) The a''eal of the o0en"e" 'arty from the !#&#l
as'e!t shall not a0e!t the !r#m#nal as'e!t of the ,u".ment or
or"er a''eale" from2
(!) U'on 'erfe!t#on of the a''eal/ the e+e!ut#on of the
,u".ment or :nal or"er a''eale" from shall %e staye" as to the
a''eal#n. 'arty2
C O M M E N T S
Jhere one of the two accused appealed from the judgment jointly
convicting them, but the appellate court reversed the judgment of
conviction because the evidence was pronounced insuBcient to support
the judgment of conviction beyond reasonable doubt and accordingly
held that the prosecution failed to discharges its onus probandi&
-&-
the
upreme Court held that its judgment reversing the judgment of the
trial court was applicable to the accused who did not appeal.
Se!t#on 792 Withdra.al of appeal. " Not$#thstan"#n.
'erfe!t#on of a''eal/ the Re.#onal Tr#al Court/ Metro'ol#tan Tr#al
Court/ Mun#!#'al Tr#al Court #n C#t#es/ Mun#!#'al Tr#al Court/ or
Mun#!#'al C#r!u#t Tr#al Court/ as the !ase may %e/ may allo$ the
a''ellant to $#th"ra$ h#s a''eal %efore the re!or" has %een
for$ar"e" %y the !ler6 of !ourt to the 'ro'er a''ellate !ourt as
'ro&#"e" #n se!t#on L/ #n $h#!h !ase the ,u".ment shall %e!ome
252
Pe!$le v. Fe,nan0e3, e- al., ;.R. 5!. 80481, J+ne 1%, 1&&0' Pe!$le v. Pe,e3, e- al., ;.R. 5!.
11&014, O-. 15, 1&&1.
211
:nal2 The Re.#onal Tr#al Court may also/ #n #ts "#s!ret#on/ allo$
the a''ellant from the ,u".ment of a Metro'ol#tan Tr#al Court/
Mun#!#'al Tr#al Court #n C#t#es/ Mun#!#'al Tr#al Court/ or
Mun#!#'al C#r!u#t Tr#al Court to $#th"ra$ h#s a''eal/ 'ro&#"e" a
mot#on to that e0e!t #s :le" %efore ren"#t#on of the ,u".ment #n
the !ase on a''eal/ #n $h#!h !ase the ,u".ment of the !ourt of
or#.#n shall %e!ome :nal an" the !ase shall %e reman"e" to the
latter !ourt for e+e!ut#on of the ,u".ment2
C O M M E N T S
Su''ose 'en"#n. h#s a''eal the a!!use" "#es/ ho$ $#ll the
"eath of the a!!use" a0e!t h#s !#&#l l#a%#l#ty1
*. The death of the accused pending appeal of his conviction
e<tinguishes both his criminal liability and civil liability based thereon.
The civil liability, however, must strictly be one directly arising and
based solely on the o;ense committed, that is, the civil liability must
arise from the crime committed. %f the civil liability is based on any
other source, the same survives the death of the accused.
-. The claim for civil liability survives the death of the accused
if it is predicated upon a source of obligation other than the o;ense
charged on the accused, such as one based on law, contract, 5uasi!
contract, or 5uasi!delict as provided in "rticle **&1 of the Civil Code.
,. "n action for the recovery of the surviving civil liability may
be pursued only by fling a separate civil action against the
e<ecutorHadministrator or the estate of the accused, depending on the
source of the obligation and subject to the provisions of ection *, Rule
*** of the Rules of Court.
-&,
Se!t#on 7E2 ,ppointment of counsel de ofcio for accused
on appeal. " It shall %e the "uty of !ler6 of !ourt of the tr#al
!ourt/ u'on :l#n. of a not#!e of a''eal/ to as!erta#n from the
a''ellant/ #f !on:ne" #n 'r#son/ $hether he "es#res the Re.#onal
Tr#al Court/ Court of A''eals or the Su'reme Court to a''o#nt a
!ounsel de ofcio to "efen" h#m an" to transm#t $#th the re!or"
on a form to %e 're'are" %y the !ler6 of !ourt of the a''ellate
!ourt/ a !ert#:!ate of !om'l#an!e $#th th#s "uty an" of the
res'onse of the a''ellant to h#s #n*u#ry2
253
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
Rev. "0., $$. 5&%
21%
C O M M E N T S
The right to a counsel de ofcio does not cease upon the
conviction of an accused by a trial court. %t continues, even during
appeal, such that the duty of the court to assign a counsel de ofcio
persists where an accused interposes an intent to appeal. Fven in a
case where the accused has signify his intent to withdraw his appeal,
the court is re5uired to in5uire into the reasons for the withdrawal.
Jhere it fnds the sole reason for the withdrawal due to poverty, the
court must assign a counsel de ofcio for, despite such withdrawal, the
duty to protect the rights of the accused subsists and, perhaps, with
greater reason. >ustice should never be limited to those who have the
means.
-&.
254
Regala0!, i)i0., $$ 5&&, i-ing Pe!$le v. Ri!, ;.R. 5!. &02&4, Se$-. 24, 1&&1.
218
Rule 79E 5 PROCEDURE IN T-E MUNICIPAL TRIAL COURTS
Section ). Fniform procedure. - The 'ro!e"ure to %e
o%ser&e" #n the Metro'ol#tan Tr#al Courts/ Mun#!#'al Tr#al
Courts/ an" Mun#!#'al C#r!u#t Tr#al Courts shall %e the same as #n
the Re.#onal Tr#al Courts/ e+!e't $here a 'art#!ular 'ro&#s#on
a''l#es only to e#ther of sa#" !ourts an" #n !r#m#nal !ases
.o&erne" %y the Re&#se" Rule on Summary Pro!e"ure2
C O M M E N T S
The procedure to be followed in criminal cases within the
cogni)ance of frst level courts shall be the same as the regular
procedure in the Regional Trial Courts, e<cept in the fve types of cases
which are subject to the summary procedure, namely+
*. $iolations of traBc laws, rules and regulations9
-. $iolations of the rental law9
,. $iolations of municipal or city ordinances9
.. $iolations of Catas Pambansa Cilang --9
&. "ll other criminal cases where the penalty prescribed by law for
the o;ense charged is imprisonment not e<ceeding si< ':( months or a
fne not e<ceeding one thousand pesos 'PhP*,000.00(, or both,
irrespective of other imposable penalties, accessories or otherwise, or of
the civil liability arising therefrom+ +ro$ided& ho'e$er& that in o;enses
involving damage to property through criminal negligence, this Rule
shall govern where the imposable fne does not e<ceed ten thousand
pesos 'PhP*0,000.00.
Aowever, this Rule shall not apply to criminal cases where the
o;ense charged is necessarily related to another criminal case subject
to ordinary procedure.
"ll other criminal cases not falling within the coverage of the fve
criminal cases enumerated above are governed by the regular
procedure.

-o$ are !r#m#nal a!t#ons !ommen!e" #n the :rst le&el
!ourts1
21&
Criminal actions are commenced in the frst level courts either by
complaint or information, e<cept in GetroSGanila and other chartered
cities where criminal actions are commenced only by information, unless
the o;ense cannot be prosecuted de ofcio.
<hen a !om'la#nt or #nformat#on #s :le" $#th the :rst le&el
!ourt $hat #s the #n#t#al !ons#"erat#on $h#!h the !ourt shoul"
un"erta6e1
The court shall initially determine whether the action calls for the
regular procedure or for a summary procedure, and then issue the
corresponding order declaring whether the case is subject to the regular
procedure or shall be governed by the Revised Rules on ummary
Procedure.
<hat atta!hments or anne+es must a!!om'any the
!om'la#nt or #nformat#on1
The complaint or information should be accompanied by the
aBdavits of the complainant and his witnesses in such number of copies
as there are accused plus two '-( copies for the court@s fle.
<hat shoul" the a;"a&#ts !onta#n or state1
The aBdavits should state only facts which are directly and
personally #nown to the aBants and which are admissible in evidence.
Those aBdavits should show that the aBants are competent to testify
on the matters stated therein.
-o$ shoul" the !ourt rea!t on the !om'la#nt or
#nformat#on1
*. %f the criminal action was commenced by a complaint. D %f on
the basis of the complaint, the aBdavits and other evidence submitted
with the complaint it appears that the accusation is patently without
merit, the court may dismiss the complaint outright and order the
accused released if he is under custody.
-. %f the criminal action is commenced by an information. ! Jhere
the criminal action is commenced by an information, the court should
220
issue an order re5uiring the accused to submit a counter!aBdavit
together with evidence in his behalf. The parties must serve on each
other copies of their respective aBdavit and counter!aBdavit, the sworn
statements of their witnesses and the other evidence supporting their
conNicting versions. The accused must serve his counter!aBdavit, the
sworn statements of his witnesses and other evidence in his behalf on
the complainant or prosecutor within ten '*0( days from receipt of the
court@s order.
The prosecutor may fle a reply aBdavit within ten '*0( days from
receipt of the counter!aBdavit, statements of the witnesses and other
evidence of the accused.
"fter the issues have been joined by the fling of the respective
aBdavit, counter!aBdavit, sworn statements of the witnesses and other
evidence of the parties, the court shall consider them together with the
complaint or information, to determine whether the accused should be
arraigned or not. %f the court fnds no cause or ground to hold the
accused for further proceedings, it shall order the case dismissed,
otherwise it shall set the case for arraignment of the accused,
mediation, preliminary conference, pre!trial and further proceedings, in
that order.

%f the accused is in custody for the o;ense charged, he shall be
immediately arraigned. %f he pleads guilt, he shall forthwith be
sentenced.
Su''ose the a!!use" 'lea"s not .u#lty/ the !ourt shall set
the !ase for 'rel#m#nary !onferen!e2 <hat are the o%,e!t#&es of
su!h !onferen!e1
*. To consider what facts could be stipulated without prejudice to
the right of the accused9
-. To allow the accused to plea bargain9
,. To consider such other matters as would clarify the issues and
assure the speedy disposition of the case.
-o$ shoul" the a!!use" %e %oun" %y the st#'ulat#ons of
fa!ts1
To be binding and may be used against the accused his
admissions made during the preliminary conference and pre!trial, the
same should be reduced in writing and signed by the accused and his
counsel.
221
Aowever, a refusal to stipulate or sign the stipulations made
during the preliminary conference or pre!trial shall not prejudice the
accused.
-o$ shoul" the tr#al 'ro!ee" #f the !ourt "eterm#nes that
the !r#m#nal a!t#on #s .o&erne" %y the Rules on Summary
Pro!e"ure1
*. The respective aBdavits of the complainant and the accused,
and their witnesses shall serve as their direct testimonies upon which
the cross!e<amination by the adverse party should be based. Redirect
and re!cross e<aminations may be conducted afterwards.
-. %f the aBant fails to testify on cross!e<amination, his aBdavit
shall not be considered competent evidence for the party presenting
such aBdavit.
,. The adverse party may utili)e the aBdavit of the aBant who
fails to testify for any admissible purpose.
May a 'arty 'resent a""#t#onal a;"a&#ts or !ounter4
a;"a&#ts1
Ies. hould a party fnds it necessary to present additional
aBdavits or counter!aBdavits as part of his direct evidence, he must so
manifest during the preliminary conference or pre!trial stating the
purpose thereof.
Shoul" the !ourt allo$ the su%m#ss#on of a""#t#onal
a;"a&#ts or !ounter4a;"a&#ts/ $#th#n $hat 'er#o" must su!h
a""#t#onal e&#"en!e %e su%m#tte"1
%f the court allows the submission of additional aBdavits or
counter!aBdavits, the same should be submitted and served on the
adverse party within three ',( days after the termination of the
preliminary conference or pre!trial, depending on the stage of the
proceeding where submission of such additional evidence was allowed
by the court.
%f it is the prosecution who re5uested and was allowed to submit
additional aBdavits, the defense may submit its additional counter!
aBdavits within three ',( days from receipt of the prosecution@s
additional aBdavits.
222
May the !ourt or"er the arrest of the a!!use" u'on the
:l#n. of the !om'la#nt or #nformat#on1
"s a rule, no. Cut if re5uired to appear and the accused fails to do
so the court may order him arrested. 4onetheless, he may be released
on bail or recogni)ance by a responsible citi)en acceptable to the court.
<#th#n $hat 'er#o" shoul" the !ourt 'romul.ate #ts
,u".ment #n the !r#m#nal a!t#on1
Promulgation of judgment should be made not later than thirty
',0( days after the termination of the trial.
<hat mot#ons or 'et#t#ons are not allo$e" un"er the
Re&#se" Rules on Summary Pro!e"ure1
*. Gotion to 5uash the complaint or information, e<cept on the
ground of lac# of jurisdiction over the subject matter, or failure to refer
the case to the Carangay Court for conciliation before fling the criminal
action in court9
-. Gotion for a bill of particulars9
,. Gotion for new trial or for reconsideration or for re!opening of
trial9
.. Gotion for e<tension of time to fle aBdavits and other papers9
&. Gemoranda9
:. Petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the court9
1. 7ilatory motions for postponement.
223
An O&er&#e$ of Rule 79F
Pro!e"ure #n the Court of A''eals
(In Cr#m#nal Cases)
Re!or" Com'let#on
?pon receipt in the Court of "ppeals of the records of the case
from the trial court, the Cler# of the appellate Court prepares the Rollo
-&&
255
(he R!ll! i# -he .!l0e, !. -he C!+,- !. A$$eal# whe,e -he in-e,l!+-!,* ini0en-#, 0ei#i!n an0
,e#!l+-i!n# $en0ing a$$eal a,e !4$lie0 an0 #ewn -!ge-he, )* .ive D5E #-i-he# !n -he le.- han0
)!,0e, in !,0e, -! .aili-a-e -he .!,4a-i!n !. -he expediente. DR+le l31, Se. 15, R+le# !. C!+,-E
224
for the appealed case. The title of the case is indicated in the Rollo, as
it was in the court of origin but with slight modifcation. The word
3appellant6 is added to the original position of the appealing party in the
trial court, while to the adverse party is appended the word
3appellee6
-&:
The Cler# also assigns the doc#et number of the appealed
case. Thus, the modifed title of the case on appeal will appear on the
face of the Rollo as follows+
3People of the Philippines,
Plainti;!appellee, C"!8.R. 4o. CR TTTT
! versus D
Fnrico an Cartolome, Eor+ Fstafa
7efendant!appellant.
<!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!<
The Cler# of the appellate Court then e<amines the records
transmitted by the cler# of court of the trial court to determine whether
all the pleadings, interlocutory incidents, order, decision and fnal order
appealed from, the evidence, oral and documentary, and other pertinent
documents, were elevated to the appellate Court. %f the records are
found incomplete, the Cler# of the appellate Court notifes the cler# of
the lower court of such fact and re5uires the latter to transmit to the
Court of "ppeals the lac#ing papers and documents. %f the Cler# of
Court of the Court of "ppeals fnds the records of the case appealed
from are complete, he notifes the appellant or his counsel of such fact
and re5uires him or his counsel to fle his appellant@s brief within thirty
',0( from notice.
The Cler# of the Court of "ppeals also determines whether the
appellant is duly represented by counsel. %f it appears from the records
of the case as transmitted by the cler# of the lower court that 'a( the
accused is confned in prison, 'b( he is without a counsel de parte on
appeal, or he signed the notice of appeal himself the Cler# of the
appellate Court shall designate a counsel de ofcio. Cut even if the
defendant!appellant is not confned in prison, he may re5uest for the
assignment of a counsel de ofcio within ten '*0( days from receipt of
the notice to fle brief and he establishes his right thereto.
-&1

A''eal r#efs/ )orm an" Contents
251
Se. 1, R+le 124
25%
Se. 2, R+le 124
225
The principal purpose of appeal briefs is to present to the Court in
a clear and concise form the factual and legal issues to be resolved, and
by fair and logical reasoning on such facts and applicable law, to assist
the Court to reach a just resolution of the controversy.
*. The appellant@s brief. ! The appellant@s brief shall be fled with
the Cler# of the Court of "ppeals in seven '1( copies accompanied by
proof of service of two copies upon the appellee.
-&/
The brief should be
either printed, encoded or typewritten in double space on legal si)e
good 5uality ungla)ed paper, ,,0 mm. in length by -*: mm. in width.
-&2
The appellant@s brief shall contain in the following order+
'a( " subject inde< of the matter in the brief with a digest of the
arguments and page references, a table of cases alphabetically arrange,
te<t boo#s and statutes cited with references to the pages where they
are cited9
'b( "n assignment of errors intended to be urged, which errors
shall be separately, distinctly and concisely stated without repetition
and numbered consecutively9
'c( ?nder the heading 3tatement of the Case,6 a clear and
concise statement of the nature of the action, a summary of the
proceedings, the appealed rulings and orders of the court, the nature of
the judgment and any other matters necessary to an understanding of
the nature of the controversy, with page references to the record9
'd( ?nder the heading 3tatement of Eact,6 a clear and concise
statement in a narrative form of the facts admitted by both parties and
of those in controversy, together with the substance of the proof
relating thereto in suBcient details to ma#e it clearly intelligible, with
page references to the record9
'e( " clear and concise statement of the issues of fact andHor law
to be submitted to the court for its judgment.
'f( ?nder the heading 3"rgument,6 the appellant@s arguments on
each assignment of error with page references to the record. the
authorities relied upon shall be cited by the page of the report at which
the case begins and the page of the report on which the citation is
found9
258
Se. 3, /)i0.
25&
Se. 1, /)i0.
221
'g( ?nder the heading 3Relief,6 a specifcation of the order or
judgment which the appellant see#s9 and
'h( " certifed true copy of the decision or fnal order appealed
from appended to the appellant@s brief.

%f the appellant fails to fle his brief within the time prescribed in
Rule *-. or within the e<tension period granted by the court, the
appellate Court may, upon motion of the appellee or motu proprio and
notice to the appellant in either case, dismiss the appeal on the ground
of abandonment or failure to prosecute.
-:0
Aowever, the Court of "ppeals cannot dismiss the appeal where
the appellant is represented by a counsel de ofcio. Cut it may hold
such counsel in contempt of court, without prejudice to the imposition of
any appropriate administrative sanction.
The Court of "ppeals may also, upon motion of the appellee or
motu proprio& dismiss the appeal if the appellant escapes from prison or
confnement, jumps bail or Nees to a foreign country during the
pendency of the appeal.
-. The appellee@s brief+ form and contents.
"fter the appellee has been served with two '-( copies of
appellant@s brief, it also has thirty ',0( days therefrom within which to
submit seven '1( copies of its own brief to the Cler# of the appellate
Court, accompanied by the proof of service of two '-( copies thereof on
the appellant.
-:*
The form and the paper used for the appellee@s brief are the same
as in the appellant@s brief. "s to its contents, the appelee@s brief shall
have, in the order indicted below, the following+
'a( " subject inde< of the matter in the brief with a digest of the
arguments and page references, and a table of cases alphabetically
arranged, te<t boo#s and statutes cited with references to the pages
where they are cited9
210
Se-i!n, 8, /)i0.
211
Se-i!n 4, /)i0.
22%
'b( ?nder the heading 3tatement of Eacts6, the appellee shall
state that he accepts the statement of facts in the appellant@s brief, or
under the heading 3Counter!tatement of Eacts,6 he shall point out such
insuBciencies or inaccuracies as he believes e<ist in the appellant@s
statement of facts with references to the pages of the record in support
therof, without repetition of matters in the appellant@s statement of
facts9 and
'c( ?nder the heading 3"rgument,6 the appellee shall set forth his
arguments in the case on each assignment of error with page references
to the record. The authorities relied on shall be cited by page of the
report at which the case begin and the page of the report on which the
citation is found.
-:-

E2 Re'ly r#ef
Jithin twenty '-0( days from receipt of the brief of the appellee,
the appellant may fle a reply brief traversing the matters raised in the
former but were not covered in the brief of the appellant.
-:,
<hen Case Is Su%m#tte" )or De!#s#on
"fter the reply brief has been fled or the period for fling the same
has e<pired, the appellate Court declares the case submitted for
decision.
D#s'os#t#on Of A''eals
"ppeals of accused who are under detention are given precedence
in their disposition over other appeals. The Court of "ppeals shall hear
and decide the appeal at the earliest practicable time with due regards
to the rights of the parties. The accused need not be present in court
during the hearing of the appeal.
The order of preference of cases in the Court of "ppeals is+ '*(
petitions for writ of habeas corpus enjoy top preference9 '-( followed by
election cases9 ',( appeals where the accused!appellants are detention
212
Se-i!n 14, R+le 44, R+le# !. C!+,-
213
Se-i!n 4, 2
n0
$a,., R+le 124
228
prisoners9 '.( appeals where the accused!appellant are at temporary
liberty under bail9 and '&( appeals in civil cases.
The appealed case is raPed to one of the 7ivisions of the Court.
The Gembers thereof shall deliberate and consult on how the case
should be resolved or disposed. "fter the Gembers of such 7ivision
reach a decision, the case is assigned to a ponente to write the opinion
of the Court.
-:.

The Court of "ppeals may '*( reverse, aBrm, or modify the
appealed judgment and may increase or reduced the penalty imposed
by the trial court, '-( remand the case to the Regional Trial Court for
new trial or retrial, ',( dismiss the
case.
-:&
Aowever, no appealed judgment shall be reversed or modifed
unless the Court of "ppeals, after an e<amination of the record and of
the evidence adduced by the parties, is of the opinion that error was
committed which injuriously a;ected the substantial rights of the
appellant.
-::

?uorum of the Court S#tt#n. In D#&#s#on An" Cotes Nee"e"
To Rea!h A De!#s#on2
Three ',( >ustices of the Court of "ppeals shall constitute a
5uorum for the session of a 7ivision. The unanimous vote of the three
',( >ustices of a 7ivision shall be necessary for the pronouncement of a
judgment or fnal resolution, which shall be reached in consultation
before writing of the opinion Court by a member of the 7ivision. %n the
event that the three ',( >ustices cannot reach a unanimous vote, the
Chairman of the 7ivision refers the matter to the Presiding >ustice who
shall direct the RaPe Committee of the Court to designate two '-(
additional >ustices to sit temporarily with the regular three ',( >ustices,
thereby forming a special division of fve '&( members. The concurrence
of a majority of such division shall be necessary for the pronouncement
of a judgment or fnal resolution. The designation of the additional two
'-( >ustices shall be made strictly by raPe and rotation among all the
other >ustices of the Court of "ppeals.
-:1

214
Se-i!n 13 !. A,-ile 7/// !. -he 1&8% C!n#-i-+-i!n ,eI+i,e# inter alia -ha- -he !nl+#i!n !. -he
C!+,- in an* a#e #+)4i--e0 -! i- .!, 0ei#i!n #hall )e ,eahe0 in !n#+l-a-i!n a4!ng -he
2e4)e,# -he,e!., )e.!,e -he a#e i# a##igne0 -! a 2e4)e, .!, -he w,i-ing !. -he !$ini!n !.
-he C!+,-..
215
Se-i!n 11, R+le 124
211
Se-i!n 10, /)i0.
21%
Se-i!n 13, /)i0.
22&
Im'os#t#on Of 9eclusion +epetua Or L#fe Im'r#sonment/
Pro!e"ure To
e )ollo$e"2
Jhenever the Court of "ppeals fnds that 'the death penalty(,
reclusion perpetua& or life imprisonment should be imposed in a case,
the court, after discussion of the evidence and the law involved, shall
render judgment imposing 'the penalty of death(, reclusion perpetua& or
life imprisonment as the circumstances warrant. Aowever, it shall
refrain from entering the judgment and shall forthwith certify the case
and elevate the entire record thereof to the upreme Court for review.
-:/
Promul.at#on of ,u".ment #n the Court of A''eals
The judgment of the Court of "ppeals is promulgated by fling the
same with the 7ivision Cler# of Court of the 7ivision which rendered
such judgment. The presence of the accused is not re5uired. The
7ivision Cler# of Court simply mails the copy of the decision to the
counsel of record, or if the accused has no counsel, to him personally.
<hen may a mot#on for ne$ tr#al %e :le" #n the Court of
A''ealsA .roun" an" form2
"t any time after the appeal from the lower court has been
perfected and before the judgment of the Court of "ppeals convicting
the appellant becomes fnal, the latter may move for new trial on the
ground of newly discovered evidence material to his defense.
-:2

The motion shall be in writing and must be supported by aBdavits
of witnesses by whom such evidence is e<pected to be given or by duly
authenticated copies of documents which are proposed to be introduced
in evidence. 4otice of the motion for new trial shall be given to the
prosecutor.
-10
Pro!ee"#n.s $here ne$ tr#al #s .rante"2
218
/)i0.
21&
Se-i!n 14, /)i0.
2%0
Se-i!n 4, R+le 121 in ,ela-i!n -! Se-i!n 14, R+le 124
230
Jhen a new trial is granted, the Court of "ppeals may conduct the
hearing and receive evidence or refer the trial to the court of origin.
-1*

The Court of "ppeals has the power to try cases and conduct
hearings, receive evidence and perform any and all acts necessary to
resolve factual issues raised in cases 'a( falling within its original
jurisdiction, 'b( involving claims for damages arising from provisional
remedies or 'c( where the court grants a new trial based only on the
ground of newly discovered evidence.
-1-
Mot#on for re!ons#"erat#on #n the Court of A''eals2
" motion for reconsideration may also be fled in the appellate
Court within ffteen '*&( days from notice of the decision or fnal order of
the Court of "ppeals, with copies thereof served upon the adverse
parties, setting forth the grounds is support thereof. The mittimus shall
be stayed during the pendency of of the motion for reconsideration. 4o
party shall be allowed a second motion for reconsideration of a
judgment or fnal order.
-1,
The Court of "ppeals, at its discretion, may re5uire the appelee to
fle its comment on the motion within the period f<ed by the Court.
Transm#ss#on an" :l#n. of the ,u".ment/ an" reman" of
the re!or"s to the !ourt of or#.#n2
Eollowing the issuance of entry of judgment of the Court of
"ppeals, a certifed true copy of such judgment shall be attached to the
original record which shall then be remanded to the cler# of the court
from which the appeal was ta#en.
-1.
Certa#n rules #n !#&#l 'ro!e"ure shall %e a''l#!a%le to
!r#m#nal !ases
The provisions of Rules .-, .. to .: and ./ to &: relating to the
procedure in the Court of "ppeals and in the upreme Court in original
2%1
Se-i!n 15, /)i0.
2%2
Se-i!n 15 in ,ela-i!n -! Se-i!n 12, R+le 124
2%3
Se-i!n 11, /)i0.
2%4
Se-i!n 1%, /)i0
231
and appealed civil cases shall be applicable to criminal cases insofar as
they are not inconsistent with the provisions to this Rule.
-1&
Rule 79K 5 Pro!e"ure #n the Su'reme Court
2%5
Se-i!n 18, /)i0.
232
Section ). Fniform procedure. " Unless other$#se 'ro&#"e"
%y the Const#tut#on or %y la$/ the 'ro!e"ure #n the Su'reme
Court #n or#.#nal an" #n a''eale" !ases shall %e the same as #n
the Court of A''eals2
Section 2. 9e/ie. of decisions of the Court of ,ppeals. "
The 'ro!e"ure for the re&#e$ %y the Su'reme Court of "e!#s#ons
#n !r#m#nal !ases shall %e the same as #n !#&#l !ases2
C O M E N T S
ection * of Rule .& states that a party may appeal by certiorari
from a judgment of the Court of "ppeals by fling with the upreme
Court a petition for certiorari, within ffteen '*&( days from notice of the
judgment or of the denial of his motion for reconsideration fled in due
time, and paying at the same time, to the cler# of court the
corresponding doc#eting fee. The petition shall not be acted upon
without proof of service of a copy thereof to the Court of "ppeals.
Section 3. Decision if opinion is e3ually di/ided. " <hen
the Su'reme Court en -anc #s e*ually "#&#"e" #n o'#n#on or the
ne!essary ma,or#ty !annot %e ha" on $hether to a!*u#t the
a''ellant/ the !ase shall a.a#n %e "el#%erate" u'on an" #f no
"e!#s#on #s rea!he" after re4"el#%erat#on/ the ,u".ment of
!on&#!t#on of the lo$er !ourt shall %e re&erse an" the a!!use"
a!*u#tte"2
C O M M E N T S
The upreme Court sits either en banc or in divisions composed of
fve Gembers each 7ivision. The cases or matters heard by a division
shall be decided or resolved with the concurrence of a majority of the
Gembers who actually too# part in the deliberation on the issues in the
case and voted thereon, but in no case without the concurrence of at
least three of such Gembers. Jhen the re5uired number is not
obtained, the case shall be decided en banc9 Provided, that no doctrine
or principle of law laid down by the court in a decision en banc or in
division may be modifed or reverse e<cept by the court sitting en
banc.
(,
2%1
Se-i!n 4, $a,#. D1E an0 D3E, A,-. 7/// !. -he 1&8% C!n#-i-+-i!n
233
The upreme Court en banc is not an appellate Court to which
decisions or reslutions of a 7ivision may be appealed.
"t any time after a 7ivision ta#es cogni)ance of a case and before
a judgment or resolution therein rendered becomes fnal and e<ecutory,
the 7ivision may refer the case en consulta to the Court en banc which,
after consideration of the reasons of the 7ivision for such referral, may
return the case to the 7ivision or accept the same for decision or
resolution. Cases assigned to a 7ivision including motions for
reconsideration which in the opinion of at least three ',( members merit
the attention of the Court en banc and are acceptable by a majority vote
of the actual membership of the Court en banc shall be considered en
banc.
" resolution of the 7ivision denying a party@s motion for referral to
the Court en banc of any 7ivision case, shall be fnal and not appealable
to the Court en banc.
Jhen a decision or resolution is referred by a 7ivision to the Court
en banc, the latter may, in the absence of suBciently important
reasons, decline to ta#e cogni)ance of the same, in which case, the
decision or resolution shall be returned to the referring 7ivision.
4o motion for reconsideration of the action of the Court en banc
declining to ta#e cogni)ance of a referral by a 7ivision, shall be
entertained.
-11

2%%
Ci,+la, 5!. 2880, L;+i0eline# an0 R+le# in -he ,e.e,,al -! -he C!+,- en banc !. a#e# a##igne0
-! a Divi#i!n,M whih -!!9 e..e- !n 2a,h 1, 1&8&
234
Rule 79> 5 PROCISIONAL REMEDIES
IN CRIMINAL CASES
Section ). ,/aila-ility of pro/isional remedies. " The
'ro&#s#onal reme"#es #n !#&#l a!t#ons/ #nsofar as they are
a''l#!a%le/ may %e a&a#le" of #n !onne!t#on $#th the !#&#l a!t#on
"eeme" #nst#tute" $#th the !r#m#nal a!t#on2
C O M M E N T S
The provisional remedies under ection * of this Rule are proper
only where the civil action for recovery of civil liability arises from the
o;ense charged which has not been e<pressly waived or the right to
institute such action separately has not been e<pressly reserved in
those cases where such reservation may be made. Conse5uently,
where such civil liability arising from the crime charged has been
e<pressly waived, or the right to institute it separately has been
reserved, the provisional remedies provided in this section cannot be
availed of in the criminal action but may be applied for in the separate
civil action.
-1/
Eurthermore, such provisional remedies are available only 3in
connection with the civil action6 instituted with the criminal action.
Aence, provisional remedies such as preliminary injunction, are
generally not available to restrain the criminal action or the prosecution
thereof.
-12
Section 2. ,ttachment. 4 <hen the !#&#l a!t#on #s 'ro'erly
#nst#tute" #n the !r#m#nal a!t#on as 'ro&#"e" #n Rule 777/ the
o0en"e" 'arty may ha&e the 'ro'erty of the a!!use" atta!he"
as se!ur#ty for the sat#sfa!t#on of any ,u".ment that may %e
re!o&ere" from the a!!use" #n the follo$#n. !asesA
(a) <hen the a!!use" #s a%out to a%s!on" from the
Ph#l#''#nesA
(%) <hen the !r#m#nal a!t#on #s %ase" on a !la#m for
money or 'ro'erty em%e==le" or frau"ulently m#sa''l#e" or
2%8
Regala0!, Re4e0ial Law C!4$en0i+4, 7!l. 2, 10
-h
"0., $$. 115
2%&
/)i0.
235
!on&erte" to the use of the a!!use" $ho #s a 'u%l#! o;!er/
o;!er of a !or'orat#on/ attorney/ fa!tor/ %ro6er/ a.ent or !ler6
#n the !ourse of h#s em'loyment as su!h/ or %y any other 'erson
#n a :"u!#ary !a'a!#ty/ or for a $#llful &#olat#on of "utyA
(!) <hen the a!!use" has !on!eale"/ remo&e"/ or
"#s'ose" of h#s 'ro'erty/ or #s a%out to "o soA an"
(") <hen the a!!use" res#"es outs#"e the Ph#l#''#nes2
RULES O) PROCEDURE
)OR ENCIRONMENTAL CASES
=n "pril *,, -0*0, the upreme Court promulgated ".G. 4o. 02!:!
/!C, entitled Rules of Procedure for Fnvironmental Cases, consisting of
fve '&( parts+
Part %. 8eneral Provisions
Part %%. Civil Procedure
Part %%%. pecial Civil "ctions
Part %$. Criminal Procedure, and
Part $. Fvidence
Eor the purpose of our course, we shall ta#e up, principally, Part %
and %$, the criminal procedure aspect of the Rules for Fnvironmental
Cases.
PART I
Rule 72 4 HENERAL PROCISIONS
Se!t#on 72 T#tle2 4 These Rules shall %e 6no$n as GThe
9ules of +rocedure for 0n/#ronmental CasesN2
Se!t#on 92 S!o'e2 4 These Rules shall .o&ern the
'ro!e"ure #n !#&#l/ !r#m#nal an" s'e!#al !#&#l a!t#ons %efore the
Re.#onal Tr#al Courts/ Metro'ol#tan Tr#al Courts/ Mun#!#'al Tr#al
Courts #n C#t#es/ Mun#!#'al Tr#al Courts an" Mun#!#'al C#r!u#t
Tr#al Courts #n&ol&#n. enfor!ement of en&#ronmental an" other
relate" la$s/ rules an" re.ulat#ons su!h as %ut not l#m#te" to
the follo$#n.3
(a) A!t No2 EK>9/ Proh#%#t#on A.a#nst Cutt#n. of T#n"alo/
A6l#/ an" Mola&e TreesA
231
(%) P2D2 No2 >8K/ Re&#se" )orestry Co"eA
(!) P2D2 No2 LKG/ San#tat#on Co"eA
(") P2D2 No2 B>B/ Mar#ne Pollut#on De!reeA
(e) P2D2 No2 78G>/ <ater Co"eA
(f) P2D2 No2 77K7/ Ph#l#''#ne En&#ronmental Pol#!y of 7B>>A
(.) P2D2 No2 7FEE/ Plant ?uarant#ne La$ of lB>LA
(h) P2D2 No2 7KLG/ Esta%l#sh#n. an En&#ronmental Im'a!t
Statement System In!lu"#n. Other En&#ronmental Mana.ement
Relate" Measures an" for Other Pur'osesA
(#) R2A2 No2 EK>7/ Proh#%#t#on A.a#nst the Cutt#n./
Destroy#n. or In,ur#n. of Plante" or Hro$#n. Trees/ )lo$er#n.
Plants an" Shru%s or Plants of S!en#! Calue Alon. Pu%l#! Roa"s/
#n Pla=as/ Par6s/ S!hool Prem#ses or #n any Other Pu%l#!
Hroun"sA
(,) RA No2 FLK8/ La.una La6e De&elo'ment Author#ty A!tA
(6) RA No2 GBGB/ To+#! Su%stan!es an" -a=ar"ous <aste
A!tA
(l) RA No2 >8>G/ Peo'leRs Small4S!ale M#n#n. A!tA
(m) RA No2 >KLG/ Nat#onal Inte.rate" Prote!te" Areas
System A!t #n!lu"#n. all la$s/ "e!rees/ or"ers/ 'ro!lamat#ons
an" #nssuan!es esta%l#sh#n. 'rote!te" areasA
(n) RA No2 >G772 Strate.#! En&#ronmental Plan for Pala$an
A!tA
(o) RA No2 >BF9/ Ph#l#''#ne M#n#n. A!tA
(') RA No2 LE>7/ In"#.enous Peo'les R#.ht A!tA
(*) RA No2 LKK8/ Ph#l#''#ne )#sher#es Co"eA
(r) RA No2 L>FB/ Clean A#r A!tA
23%
(s) RA No2 B88E/ E!olo.#!al Sol#" <aste Mana.ement A!tA
(t) RA No2 B8>9/ Nat#onal Ca&es an" Ca&e Resour!es
Mana.ement A!tA
(u) RA No2 B7F>/ <#l"l#fe Conser&at#on an" Prote!t#on A!tA
(&) RA No2 B7>K/ Cha#n Sa$ A!tA
($) RA No2 B9>K/ Clean <ater A!tA
(+) RA No2 BFLE/ O#l S'#ll Com'ensat#on A!t of 988>A an"
(y) Pro&#s#ons #n CA No2 7F7/ The Pu%l#! Lan" A!tA RA No2
GGE>/ Com'rehens#&e A.rar#an Reform La$ of 7BLLA RA No2
>7G8/ Lo!al Ho&ernment Co"e of 7BB7A RA No2 >7G7/ Ta+ La$s
In!or'orate" #n the Re&#se" )orestry Co"e an" Other
En&#ronmental La$s (Amen"#n. the NIRC)A RA No2 >E8L/ See"
In"ustry De&elo'ment A!t of 7BB9A RA No2 >B88/ -#.h Calue
Cro's De&elo'ment A!tA RA No2 L8FL/ Co!onut Preser&at#on
A!tA RA No2 LFEK/ A.r#!ulture an" )#sher#es Mo"ern#=at#on A!t
of 7BB>A RA No2 BK99/ The Ph#l#''#ne Ar!h#'ela.o asel#ne La$A
RA No2 BKBE/ Rene$a%le Ener.y A!t of 988LA RA No2 BGE>/
Ph#l#''#ne #ofuels A!tA an" other e+#st#n. la$s that relate to
the !onser&at#on/ "e&elo'ment/ 'rote!t#on an" ut#l#=at#on of the
en&#ronment an" natural resour!es2
C O M M E N T S
These Rules do not set aside but remain consistent with prevailing
jurisprudence regarding the doctrine of e<haustion of administrative
remedies and primary jurisdiction.
These Rules apply to environmental cases arising from laws, rules
and regulation that relate to the conservation, development ,
preservation, protection and utili)ation of the environment and natural
resources, including those laws that may contain provisions that relate
to the environment but are not environmental laws per se& C" 4o. *.*,
The Public Land "ct, and R" 4o. 1*:0, The Local 8overnment Code,
*220, and so on. Jhile this section of the Rules includes a list of such
applicable laws, it is not meant to be e<haustive.
238
Eurthermore, since this section covers civil, criminal and special
civil actions #n&ol&#n. enfor!ement or &#olat#on of environmental and
related laws, these Rules may apply in other suits not necessarily based
on environmental law or laws containing environmental provisions. Eor
e<ample, if a defendant in a civil damages or defamation suit, which are
governed by the regular rules of civil or criminal procedure, invo#es a
strategic lawsuit against public participation 'L"PP( defense 'see Rules
: and *2(, then these Rules shall apply insofar as the L"PP defense is
concerned.
The courts referred to in this section are those designated as
special courts to hear, try and decide environmental cases under
"dministrative =rder 4o. -,!-00/, of >anuary -/, -00/, and those that
may be designated as such thereafter.
Se!t#on E2 O%,e!t#&es2 4 The o%,e!t#&es of these Rules are3
(a) To 'rote!t an" a"&an!e the !onst#tut#onal r#.ht of the
'eo'le to a %alan!e an" healthful e!olo.yA
(%) To 'ro&#"e a s#m'l#:e"/ s'ee"y an" #ne+'ens#&e
'ro!e"ure for the enfor!ement of en&#ronmental r#.hts an"
"ut#es re!o.n#=e" un"er the Const#tut#on/ e+#st#n. la$s/ rules
an" re.ulat#ons/ an" #nternat#onal a.reementsA
(!) To #ntro"u!e an" a"o't #nno&at#ons an" %est 'ra!t#!es
ensur#n. the e0e!t#&e enfor!ement of reme"#es an" re"ress of
&#olat#on of en&#ronmental la$sA an"
(") To ena%le the !ourts to mon#tor an" e+a!t !om'l#an!e
$#th or"ers an" ,u".ments #n en&#ronmental !ases2
C O M M E N T S
This section contains the principal objectives of these Rules, but it
is not meant to be an e<haustive listing of the objectives. %t states in
23&
very broad terms the basic principles and objective animating the rules.
They are li#ewise intended to be guideposts in construing these Rules.
Paragraph 'a( recogni)es the right of the people to a 3balance and
healthful ecology6
-/0

ubparagraph 'b( promotes access to justice by supporting the
adoption of procedural mechanisms to insure a simplifed, speedy and
ine<pensive procedure for the enforcement of environmental rights.
This subparagraph also enumerates the various sources of such rights.
ubparagraph 'c( refers to innovative provisions of these Rules
regarding the defense against strategic lawsuits against public
participation 'L"PP( and the precautionary principle.
Einally, subparagraph 'd( gives emphasis to the means by which
the courts carry their jurisdiction to e;ect. %t pertains to the adoption of
the writs of -ali-asan and continuing mandamus& as well as the issuance
of an Fnvironmental Protection =rder 'FP=( to ensure the enforcement
of court orders and judgments in environmental cases.
Se!t#on F2 De:n#t#on of terms24
(a) y4'ro"u!t or "er#&at#&es means any 'art ta6en or
su%stan!e e+tra!te" from $#l"l#fe,#n ra$ or #n 'ro!esse" form
#n!lu"#n. stu0e" an#mals an" he%ar#ums s'e!#mens2
(%) Consent decree refers to a ,u"#!#ally a''ro&e"
settlement %et$een !on!erne" 'art#es %ase" on 'u%l#! #nterest
an" 'u%l#! 'ol#!y to 'rote!t an" 'reser&e the en&#ronment2
C O M M E N T S
The designation of a consent decree as a mode of settlement
gives emphasis to the public interest aspect in environmental cases and
encourages the parties to e<pedite the resolution of litigation.
" consent decree derives its contractual nature from the fact of its
being entered into by the parties themselves through which they arrive
at a certain compromise with respect to the issues involved in the case,
280
A,-. //, Se. 11 !. -he C!n#-i-+-i!n 4an0a-e#N L(he S-a-e #hall $,!-e- an0 a0vane -he ,igh- !.
-he $e!$le -! a )alane an0 heal-h.+l e!l!g* in a!,0 wi-h -he ,h*-h4 an0 ha,4!n* !. na-+,e.
240
whereas their judicial feature is ac5uired through the approval of the
court. %t has a number of advantages+
-/*

'*( %t encourages the parties 'the 8overnment and the
violators( to come up with comprehensive, mutually!acceptable
solutions to the environ
mental problem, and since the agreement was arrived at
voluntarily, there is a greater possibility of actual compliance9
'-( %t is open to public scrutiny9
',( %t allows the parties to address issues other
than those
presented to the court9 and
'.( %t is still subject to judicial approval and can be enforced
though
a court order.
(!) Continuin& mandamus #s a $r#t #ssue" %y the !ourt #n
an en&#ronmental !ase "#re!t#n. any a.en!y or #nstrumental#ty
of the .o&ernment or o;!er thereof to 'erform any a!t or
ser#es of a!ts "e!ree" %y :nal ,u".ment $h#!h shall rema#n
e0e!t#&e unt#l ,u".ment #s fully sat#s:e"2
C O M M E N T S
!ontinuing Mandamus. The Philippine concept of a continuing
mandamus traces is origin to the cases of ../. 0ada$arman $. 1nion of
2ndia 34rs& - CC -:1 '*221( and 5ineet /arin $. 1nion of 2ndia& * CC
-:: '*22/(. %n the 0ada$arman case the upreme Court of %ndia in the
former case issued this novel writ to save the country@s forests from
rapid deterioration due to illegal logging, and in view of the nature of
the case which re5uires the court to continuously monitor compliance
with its orders. %n the /arain case, the writ was issued for the
enforcement of the court order to clean up the 8anges River.
Comments made regarding such issuances harp upon how the judiciary
too# upon itself policy ma#ing functions, and as in any other jurisdiction
281
J+#-ie C!n#+el! @na,e#8San-iag!, F,a4ew!,9 .!, S-,eng-hening "nvi,!n4en-al A0F+0ia-i!n
in -he Phili$$ine#, 52 A-ene! L.J.. %44 D2008E
241
where the principle of separation of powers is recogni)ed, such judicial
move received accolades as well as criticisms.
%n the Philippine jurisprudence, the concept of continuing
mandamus was originally enunciated in the case of !oncerned
6esidents of Manila Ba% v. GG7".
-/-
The Rules now codifed the Jrit
of Continuing Gandamus as one of the principal remedies which may be
availed of in environmental cases.
(") 0n/ironmental +rotection 5rder 60+57 refers to an
or"er #ssue" %y the !ourt "#re!t#n. or en,o#n#n. any 'erson or
.o&ernment a.en!y to 'erform or "es#st from 'erform#n. an a!t
#n or"er to 'rote!t/ 'reser&e or reha%#l#tate the en&#ronment2
(e) M#neral refers to all naturally o!!urr#n. #nor.an#!
su%stan!e #n so#l/ .as/ l#*u#"/ or any #nterme"#ate state
e+!lu"#n. ener.y mater#als su!h as !oal/ 'etroleum/ natural
.as/ ra"#oa!t#&e mater#als an" .eothermal ener.y2


(f) +recautionary principle states that $hen human
a!t#&#t#es may lea" to threats of ser#ous an" #rre&ers#%le
"ama.e to the en&#ronment that #s s!#ent#:!ally 'laus#%le %ut
un!erta#n/ a!t#on shall %e ta6en to a&o#" or "#m#n#sh that threat2
C O M M E N T S
The adoption of the precautionary principle as part of these Rules,
specifcally relating to evidence, recogni)es that e<ceptional cases may
re5uire its application. %n applying the precautionary principle, the
following factors, among others, may be considered+ '*( threat to
human life or health9 '-( ine5uity to present or future generations9 or
',( prejudice to the environment without legal consideration of the
environmental rights of those a;ected.
-/,

The court may apply the precautionary principle in resolving the
case before it, when there is a lac# of full scientifc certainty in
establishing a causal lin# between human activity and environmental
282
;.R. 5!.1%1&4%8&8, De. 18,2008
283
Pa,- 7, "vi0ene, R+le 20, -he#e R+le#
242
e;ect. The constitutional right of the people to a balanced and healthful
ecology shall be given the beneft of the doubt.
-/.
%n its essence, the precautionary principle calls for the e<ercise of
caution in the face of ris# and uncertainty. Jhile the principle can be
applied in any setting in which ris# and uncertainty are found, it has
evolved predominantly in, and today remains, most closely associated
with the environmental arena.
The Rules ac#nowledge the peculiar circumstances surrounding
environmental cases in that 3scientifc evidence is usually insuBcient,
inconclusive or uncertain and preliminary scientifc evaluation indicates
that there are reasonable grounds for concern6 that there are potentially
dangerous e;ects on environment, human, animal, or planet health. Eor
this reason, the principle re5uires those who have the means,
#nowledge, power, and resources to ta#e action to prevent or mitigate
the harm to the environment or to act when conclusively ascertained
understanding by science is not yet available. %n e;ect, the 5uantum of
evidence to prove potentially ha)ardous e;ect on the environment is
rela<ed and the burden is shifted to the proponents of an activity that
may cause damage to the environment.
(.) Strate&ic la.suit a&ainst pu-lic participation 6SC,++7
refers to an a!t#on $hether !#&#l/ !r#m#nal or a"m#n#strat#&e/
%rou.ht a.a#nst any 'erson/ #nst#tut#on or any .o&ernment
a.en!y or lo!al .o&ernment un#t or #ts o;!#als an" em'loyees/
$#th the #ntent to harass/ &e+/ e+ert un"ue 'ressure or st#De
any le.al re!ourse that su!h 'erson/ #nst#tut#on or .o&ernment
a.en!y has ta6en or may ta6e #n the enfor!ement of
en&#ronmental la$s/ 'rote!t#on of the en&#ronment or assert#on
of en&#ronmental r#.hts2
C O M M E N T S
The main purpose of a L"PP suit is to harass, ve<, e<ert undue
pressure or stiNe any legal recourse of any person, including the
government from enforcing environmental laws or protecting of
asserting environmental rights. This applies not only to suits that have
been fled in the form of a countersuit, but also to suits that about to be
fled with the intention of discouraging an aggrieved person from
bringing a valid environmental complaint before the court.
284
/)i0.
243
(h) <#l"l#fe means forms an" &ar#et#es of Dora an" fauna/
#n all "e&elo'mental sta.es #n!lu"#n. those $h#!h are #n
!a't#&#ty or are %e#n. %re" or 'ro'a.ate
CRIMINAL PROCEDURE IN CASES
O) CIOLATIONS O) ENCIRONMENTAL LA<S
Rule B 5 PROSECUTION O) O))ENSES
Se!t#on 72 <ho may :le2 4 Any o0en"e" 'arty/ 'ea!e
o;!er/ or any 'u%l#! o;!er !har.e" $#th the enfor!ement of an
244
en&#ronmental la$ may :le a !om'la#nt %efore the 'ro'er o;!er
#n a!!or"an!e $#th the Rules of Court2
C O M M E N T S
<hat #s your !on!e't of a M!om'la#ntN1
" complaint is a sworn written statement charging a person with
an o;ense, subscribed by the o;ended party, any peace oBcer, or other
public oBcer charged with the enforcement of the law violated.
-/&
<ho may #n#t#ate a !r#m#nal !ase for &#olat#on of an
en&#ronmental la$1
The following persons may fle a criminal action for the
prosecution of violation of an environmental law, namely+ '*( any
private o;ended party9 '-( a peace oBcer9 ',( any pubic oBcer
charged with the enforcement of an environmental law.
-o$ may a !r#m#nal !ase for &#olat#on of an en&#ronmental
la$ %e #n#t#ate"1
" criminal action for violation of an environmental laws is initiated
by fling a complaint before the proper oBcer in accordance with the
Rules of Court.
<ho are !ons#"ere" as 'ro'er o;!ers %efore $hom a
!r#m#nal !om'la#nt for &#olat#on of an en&#ronmental la$ may %e
:le" #n a!!or"an!e $#th the Rules of Court1
'*( The oBcer charged with enforcement of an environmental law
and who is authori)ed to conduct an investigation of the subject matter
of the complaint9
'-( %n the absence of such authori)ed oBcer, the complaint may
be fled with+
'a( The =Bce of the =mbudsman9
285
Se. 3, R+le 110, Rev. R+le# !. C,i4inal P,!e0+,e
245
'b( The Provincial or City Prosecutors and their assistants9
'c( The 4ational or tate Prosecutors.
Is #t ne!essary for the o;!er %efore $hom a !om'la#nt for
&#olat#on of an en&#ronmental la$ to !on"u!t a 'rel#m#nary
#n&est#.at#on1
Ies. "lthough the Rules of Procedure for Fnvironmental Cases do
not provide for preliminary investigation of cases involving violations of
environmental cases, ection -, Rule -- of these Rules provides that
3't(he Rules of Court shall apply in supplementary manner, e<cept as
otherwise provided herein6
The basic purpose of preliminary investigation is to determine
whether there is suBcient ground to engender a well!founded belief that
a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.
-/:
Goreover, preliminary investigation see#s to protect the accused
from the inconvenience, e<pense and burden of defending himself in a
formal trial unless the reasonable probability of his guilt shall have been
frst ascertained in a fairly summary proceedings by a competent
oBcer9 to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a
crime, from the trouble, e<penses and an<iety of public trial.
-/1

Preliminary investigation also aims to protect the tate from
having to conduct useless and e<pensive trials.
-//

Se!t#on 92 Bilin& of the information. - An #nformat#on/
!har.#n. a 'erson $#th a &#olat#on of an en&#ronmental la$ an"
su%s!r#%e" %y the 'rose!utor/ shal %e :le" $#th the !ourt2
C O M M E N T S
281
Se. 1, R+le 112, R+le# !. C!+,-
28%
R!0i#, S,. v. San0igan)a*an, 111 SCRA 118 D1&&8E' Pe!$le v. Pa+lan, 11% SCRA 1%1.
288
(a0! v. Re#+-an, 1%5 SCRA 3% D1&8&E
241
An #nformat#on/ "e:ne"2
"n information is an accusation in writing charging a person with
an o;ense, subscribed by the prosecutor and fled with the court.
-/2
<hen #s a !om'la#nt or #nformat#on "eeme" su;!#ent1
" complaint or information is suBcient if it states the name of the
accused9 the designation of the o;ense given by the statute9 the acts
or omissions complained of as constituting the o;ense9 the name of the
o;ended party9 the appro<imate date of the commission of the o;ense9
and the place where the o;ense was committed.
-20
In $hat !ourt may the #nformat#on %e :le"1
The information should be fled in the court designated as special
court to hear, try and decide environmental cases which has territorial
jurisdiction over the place where the o;ense, or any of its component
elements, was committed.
Se!t#on E2 Special prosecutor. - In !r#m#nal !ases (for
&#olat#on of any en&#ronmental la$)
9B7
$here there #s no 'r#&ate
o0en"e" 'arty a !ounsel $hose ser&#!es are o0ere" %y any
'erson or or.an#=at#on may %e allo$e" %y the !ourt as s'e!#al
'rose!utor/ $#th the !onsent of an" su%,e!t to the !ontrol an"
su'er&#s#on of the 'u%l#! 'rose!ut#on
C O M M E N T S
This section of the Rule aims to encourage public participation in
criminal litigations related to violation of any environmental statue by
permitting the appearance and intervention of a private prosecutor
although no private o;ended party is involved. ?nli#e the general rule
subsisting under the Rules of Criminal Procedure, this section recogni)es
the possibility of intervention from a special prosecutor even in the
28&
Se-i!n 4, /)i0., /)i0.
2&0
Se-i!n 1, !$. i-.
2&1
"nl!#+,e# we,e #+$$lie0
24%
absence of a private o;ended party. The special prosecutor
complements the public prosecutor in advancing public interest in
environmental cases. The intervention of private prosecutor, however,
is subject to the consent, control and supervision of the public
prosecutor.
This provision applies to those instances where there is no private
o;ended party who has a direct or material interest to prosecute a
criminal action. Cut where a private o;ended party appears in the
criminal action for recovery of civil liability arising from the o;ense
charged, he may intervene by counsel in the prosecution of the o;ense,
pursuant to ection *: of Rule **0, Revised Rules of Criminal Procedure.
Gost environmental cases involved violations of environmental
law or damage to the environment without an injured private person, as
in the case of dynamite fshing in marine sanctuaries, illegal logging in
forest, hunting of endangered species of wildlife.
Rule 78 5 PROSECUTION O) CICIL ACTIONS
Se!t#on 72 Institution of criminal and ci/il actions. - <hen
a !r#m#nal a!t#on #s #nst#tute"/ the !#&#l a!t#on for re!o&ery of the
!#&#l l#a%#l#ty ar#s#n. from the o0ense !har.e"/ shall %e "eeme"
#nst#tute" $#th the !r#m#nal a!t#on unless the !om'la#nant
$a#&es the !#&#l a!t#on/ reser&es the r#.ht to #nst#tute #t
se'arately or #nst#tute the !#&#l a!t#on 'r#or to the !r#m#nal
a!t#on2
Unless the !#&#l a!t#on has %een #nst#tute" 'r#or to the
!r#m#nal a!t#on/ the reser&at#on of the r#.ht to #nst#tute
se'arately the !#&#l a!t#on shall %e ma"e "ur#n. the
arra#.nment2
In !ase !#&#l l#a%#l#ty #s #m'ose" or "ama.es are a$ar"e"/
the :l#n. an" other le.al fees shall %e #m'ose" on sa#" a$ar" #n
a!!or"an!e $#th Rule 7F7 of the Rules of Court/ an" the fees
shall !onst#tute a :rst l#en on the ,u".ment a$ar"/ The
"ama.es a$ar"e" #n !ases $here there #s no 'r#&ate o0en"e"
'arty/ less the :l#n. fees/ shall a!!rue to the fun"s of the
a.en!y !har.e" $#th #m'lementat#on of the en&#ronmental la$
&#olate"2 The a$ar" shall %e use" for the restorat#on an"
reha%#l#tat#on of the en&#ronment a"&ersely a0e!te"2
248
C O M M E N T S
The frst paragraph of this section was ta#en from ection * of
Rule *** of the Rules of Criminal Procedure with a minor amendment.
The phrase 3the o;ended party6 in the latter has been changed to 3the
complainant6 in the former.
The second paragraph of the present section was a rephrasing of
the second paragraph of ection * of Rule ***. ?nder the Rules of
Criminal Procedure, the 3reservation of the right to institute separately
the civil action shall be made before the prosecution starts presenting
evidence...69 under the present section, the 3reservation of the right to
institute separately the civil action shall be made during arraignment.6
The third paragraph departs from the traditional rule on
institution of civil actions under Rule *** in that it provides for an
applicable rule on the disposition of damages where there is not private
o;ended party. The provision li#ewise codifes the essence of
restorative justice when it re5uires that the award shall be given to the
concerned government agency. Ths restorative justice transposed into
the conte<t of environmental law.
The general principle that when a criminal action is fled what was
deemed impliedly instituted thereunder was only the civil liability arising
from and based on the o;ense charged, and no other.
-2-

Rule 772 4 ARREST
Se!t#on2 72 ,rrest .ithout .arrant: .hen la.ful. - A 'ea!e
o;!er or an #n"#&#"ual "e'ut#=e" %y the 'ro'er .o&ernment
a.en!y may/ $#thout $arrant/ arrest a 'erson3
2&2
Pe!$le v. A4i#-a0, 108 SCRA 101
24&
(a) <hen/ #n h#s 'resen!e/ the 'erson to %e arreste" has
!omm#tte"/ #s a!tually !omm#tt#n. or #s attem't#n. to !omm#t an
o0enseA or
(%) <hen an o0ense has ,ust %een !omm#tte"/ an" he has
'ro%a%le !ause to %el#e&e %ase" on 'ersonal 6no$le".e of fa!ts
or !#r!umstan!es that the 'erson to %e arreste" has !omm#tte"
#t2
In"#&#"uals "e'ut#=e" %y the 'ro'er .o&ernment a.en!y
$ho are enfor!#n. en&#ronmental la$s shall en,oy the
'resum't#on of re.ular#ty un"er Se!t#on E(m)/ Rule 7E7 of the
Rules of Court $hen e0e!t#n. arrests for &#olat#on of
en&#ronmental la$s2
C O M M E N T S
Paragraphs 'a( and 'b( of this Rules are reproductions of
paragraphs 'a( and 'b( of ection & of Rule **, of the Rules of Criminal
Procedure.
The last paragraph authori)es the proper government agency
charged with the enforcement of environmental laws to deputi)e private
individuals to arrest persons who violate any environmental law, similar
to citi)en@s arrest under ection & of Rule **, of the Rules of Criminal
Procedure. 7eputi)ed individuals, e;ecting citi)en@s arrest, enjoy the
presumption of regularity traditionally given to public oBcers under
ection ,'m( of Rule *,* of the Revised Rules on Fvidence. To enjoy the
presumption of regularity, proper documents pertaining to the
deputi)ation must be made available, if feasible, to the individual about
to be arrested.
Se!t#on 9 5 Warrant of arrest. " All $arrant of arrest #ssue"
%y the !ourt shall %e a!!om'an#e" %y a !ert#:e" true !o'y of
the #nformat#on :le $#th the #ssu#n. !ourt2
C O M M E N T S
7pplicabilit% of 6ule 8 of the 6ules of !ourt 9 Rule & of the Rules of
Court in matters of application, issuance and implementation of warrant
of arrest applies as supplement to ection - of this Rule.
250
The attachment of a certifed true copy of the information with the
warrant of arrest is deemed notice to the accused of the charges against
him. This provision must li#ewise be read in conjunction with the
provisions on Cail under Rule *., ection

RULE 79 5 CUSTOD@ AND DISPOSITION
O) SEITED ITEMS/ E?UIPMENT/ PARAP-ERNALIA/
CONCE@ANCES AND INSTRUMENTS
Se!2 72 Custody and disposition of sei=ed items. - The
!usto"y an" "#s'os#t#on of se#=e" #tems shall %e #n a!!or"an!e
$#th the a''l#!a%le la$s or rules 'romul.ate" %y the !on!erne"
.o&ernment a.en!y2
C O M M E N T S
?nder this provision, the administrative agency which has
authority under the law to regulate the item subject of sei)ure li#ewise
retains authority to assume custody over and dispose of the sei)ed
items. should their e<isting rule provide for such.
SEC2 92 +rocedure. 5 In the a%sen!e of a''l#!a%le la$s or
rules 'romul.ate" %y the !on!erne" .o&ernment a.en!y/ the
follo$#n. 'ro!e"ure shall %e o%ser&e"3
(a) The a''rehen"#n. o;!er ha&#n. #n#t#al !usto"y an"
!ontrol of the se#=e" #tems/ e*u#'ment/ 'ara'hernal#a/
!on&eyan!es an" #nstruments shall 'hys#!ally #n&entory an"
$hene&er 'ra!t#!a%le/ 'hoto.ra'h the same #n the 'resen!e of
the 'ersons from $hom su!h #tems $ere se#=e"2
(%) Thereafter/ the a''rehen"#n. o;!er shall su%m#t to
the #ssu#n. !ourt the return of the sear!h $arrant $#th#n :&e (K)
251
"ays from "ate of se#=ure or #n !ase of $arrantless arrest/
su%m#t $#th#n :&e (K) "ays from "ate of se#=ure/ the #n&entory
re'ort/ !om'l#an!e re'ort/ 'hoto.ra'hs/ re'resentat#&e sam'les
an" other 'ert#nent "o!uments to the 'u%l#! 'rose!utor for
a''ro'r#ate a!t#on2
(!) U'on mot#on %y any #ntereste" 'arty/ the !ourt may
"#re!t the
au!t#on sale of the se#=e" #tems/ e*u#'ment/ 'ara'hernal#a/
tools/ or #nstrument of the !r#me2 The !ourt shall/ after hear#n./
:+ the m#n#mum %#" 'r#!e %ase" on the re!ommen"at#on of the
!on!erne" .o&ernment a.en!y2 The sher#0 shall !on"u!t the
au!t#on2
(") The au!t#on shall %e $#th not#!e to the a!!use"/ the
'erson from $hom the #tems $ere se#=e"/ or the o$ner thereof
an" the !on!erne" .o&ernment a.en!y2
(e) The not#!e of au!t#on shall %e 'oste" #n three
!ons'#!uous 'la!es #n the !#ty or mun#!#'al#ty $here the #tems/
e*u#'ment/ 'ara'hernal#a/ tools of #nstruments of the !r#me
$ere se#=e"2
(f) The 'ro!ee"s shall %e hel" #n trust an" "e'os#te" $#th
the .o&ernment "e'os#tory %an6 for "#s'os#t#on a!!or"#n. to
the ,u".ment2
C O M M E N T S
The foregoing provisions concern two aspects of sei)ure. The frst
aspect concerns the chain of custody of the sei)ed items, e5uipment,
paraphernalia, conveyances, and instruments. ub!paragraphs 'a( and
'b( are meant to assure the integrity of the evidence after sei)ure, for
later presentation at the trial.
The second aspect deals with the disposition of the sei)ed
materials. This addresses the concern of deterioration of the materials,
most of which are perishable, while in custodia legis. The provision
contains procedural safeguards to assure the preservation of the value
of the sei)ed materials, should the case eventually be decided in favor
of their owner or possessor.
252
ubparagraph 'b( ma#es the provision cover both sei)ures with
warrant and warrantless sei)ures.
The motion to direct the auction sale under paragraph 'c( may be
fled by any 3interested party6 to obviate any oppressive use of sei)ure
to the prejudice of ant party.
RULE 7E 4 PROCISIONAL REMEDIES
Se!2 72 ,ttachment in en/ironmental cases. " The
'ro&#s#onal reme"y of atta!hment un"er Rule 79> of the Rules
of Court may %e a&a#le" of #n en&#ronmental !ases2
ection - of Rule *-1 provides+
ec. -. 7ttachment. 9 Jhen the civil action is properly
instituted
in the criminal action as provided in Rule ***, the o;ended party
may
have the property of the accused attached as security for the
satisfac!
tion of any judgment that may recovered from the accused in the
follow!
ing cases+
'a( Jhen the accued is about to abscond from the
Philippines9
'b( Jhen the criminal action is based on a claim for money
or
property embe))led or fraudulently misapplied or converted to the
use
of the accused who is a public oBcer, oBcer of a corporation,
attorney,
factor, bro#er, agent or cler#, in the course of his employment as
such,
or by any other person in a fduciary capacity, or for willful
violation of
duty9
'c( Jhen the accused has concealed, removed of disposed
of
his property, or is about to do so9 and
253
'd( Jhen the accused resides outside the Philippines.
Se!2 92 0n/ironmental +rotection 5rder 60+574 Temporary
0n/ironmental +rotection 5rder 6T0+57 in criminal cases: - The
'ro!e"ure for #ssuan!e of EPO an" TEPO shall %e .o&erne" %y
Rule 9 of these Rules2
C O M M E N T S
This portion of the rule provides for the applicability of TFP= in
appropriate situation in criminal prosecution. This procedural remedy is
in recognition of the fact that criminal cases, although principally for the
prosecution of individuals for criminal liability, may have considerable
impact on the environment9 thus, necessitating judicial intervention.
Rule - of these Rules provides inter alia:

Mec. /. 2ssuance of .emporar% ;n$ironmental +rotection 4rder
(.;+4). 9 %f it appears from the verifed complaint with a prayer for the
issuance of an Fnvironmental Protection =rder 'FP=( that the matter is
of e<treme urgency and the applicant will su;er grave injustice and
irreparable injury, the e<ecutive judge of the multiple sala court before
raPe or the presiding judge of a single sala court as the case may be,
may issue ex part a TFP= e;ective for only seventy!two '1-( hours from
date of receipt of the TFP= by the party or person enjoined. Jithin the
said period, the court where the case is assigned, shall conduct a
summary hearing to determine whether the TFP= may be e<tended
until the termination of the case.
MThe court where the case is assigned shall periodically monitor
the e<istence of the acts that are subject matter of the TFP= even if
issued by the e<ecutive judge, and may lift the same at any time as
circumstances may warrant.
3The application shall be e<empt from the posting of a bond for
the issuance of a TFP=.

3ec. 2. 7ction on motion for dissolution of .;+4. - The grounds
for motion to dissolve TFP= shall be supported by aBdavits of the party
or person enjoined which the applicant may oppose also by aBdavits.
254
3The TFP= may be dissolved if it appears after hearing that its
issuance or continuance would cause irreparable damage to the party or
person enjoined while the applicant may be fully compensated for such
damages as he may su;er and subject to the posting of a suBcient
bond by the party of person enjoined.
3ec. *0. +rohibition against temporar% restraining order (.64)
and preliminar% injunction. 9 F<cept the upreme Court, no court can
issue a TR= or writ of preliminary injunction against lawful actions of
government agencies that enforce environmental laws or prevent
violation thereof.
3ec. **. Report on TFP=, FP=, TR= or preliminary injunction. D
The judge shall report any action ta#en on a TFP=, FP=, TR= or
preliminary injunction, including its modifcation and dissolution, to the
upreme Court, through the =Bce of the Court administrator, within ten
'*0( days from the action ta#en.6
RULE 7F 4 AIL
Se!2 72 ?ail: .here fled. - a#l #n the amount :+e" may %e
:le" $#th the !ourt $here the !ase #s 'en"#n./ or #n the a%sen!e
or una&a#la%#l#ty of the ,u".e thereof/ $#th any re.#onal tr#al
,u".e/ metro'ol#tan tr#al ,u".e/ mun#!#'al tr#al ,u".e or
mun#!#'al !#r!u#t tr#al ,u".e #n the 'ro&#n!e/ !#ty or mun#!#'al#ty2
If the a!!use" #s arreste" #n a 'ro&#n!e/ !#ty or mun#!#'al#ty
other than $here the !ase #s 'en"#n./ %a#l may also %e :le"
$#th any Re.#onal Tr#al Court of sa#" 'la!e/ or #f no ,u".e
thereof #s a&a#la%le/ $#th any metro'ol#tan tr#al ,u".e/ mun#!#'al
tr#al ,u".e or mun#!#'al !#r!u#t tr#al ,u".e there#n2 If the !ourt
.rants %a#l/ the !ourt may #ssue a hol"4"e'arture or"er #n
a''ro'r#ate !ases2
C O M M E N T S
This section ma#es available to the accused the right of bail from
any court, within and outside the jurisdiction of the court which issued
the warrant of arrest. The immediate availability of bail is intended to
obviate long periods of detention.
255
Se!2 92Duties of the court. " efore .rant#n. the
a''l#!at#on for %a#l/ the ,u".e must rea" the #nformat#on #n a
lan.ua.e 6no$n to an" un"erstoo" %y the a!!use" an" re*u#re
the a!!use" 'in the presence and with the assistance of counsel( to
s#.n a $r#tten un"erta6#n./ as follo$s3
(a) To a''ear %efore the !ourt that #ssue" the $arrant of
arrest for arra#.nment 'ur'oses on the "ate s!he"ule"/ an" #f
the a!!use" fa#ls to a''ear $#thout ,ust#:!at#on on the "ate of
arra#.nment/ a!!use" $a#&es the rea"#n. of the #nformat#on an"
author#=es the !ourt to enter a 'lea of not .u#lty on %ehalf of
the a!!use" an" to set the !ase for tr#alA
(%) To a''ear $hene&er re*u#re" %y the !ourt $here the
!ase #s 'en"#n.A
(!) To $a#&e the r#.ht of the a!!use" to %e 'resent at the
tr#al/ an" u'on fa#lure of the a!!use" to a''ear $#thout
,ust#:!at#on an" "es'#te "ue not#!e/ the tr#al may 'ro!ee" in
a-sentia. 6Fnclosures were supplied.(
C O M M E N T S
" #ey innovation in this section is the e<ecution of an underta#ing
by the accused, in the presence of counsel, empowering the judge to
enter a plea of not guilty, in the event the accused fails to appear at the
arraignment without just cause. This authori)ation also permits the
court to try the case in absentia, within the period provided under these
Rules. This, li#ewise, addresses a fundamental concern surrounding the
prosecution of criminal cases in general, where the accused jumps bail,
before he is arraigned, thus the court is unable to proceed with the
disposition of the case in view of the absence of the accused and the
failure to arraign the latter.
RULE 7K 5 ARRAIHNMENT AND PLEA
Se!2 72 ,rrai&nment. " The !ourt shall set the arra#.nment
of the a!!use" $#th#n :fteen (7K) "ays from the t#me #t a!*u#res
,ur#s"#!t#on o&er the a!!use"/ $#th not#!e to the 'u%l#!
'rose!utor an" o0en"e" 'arty or !on!erne" .o&ernment a.en!y
that #t $#ll enterta#n 'lea4%ar.a#n#n. on the "ate of the
arra#.nment2
251
C O M M E N T S
4otice to the concerned government agency is given in this
section in order to permit its intervention in plea!bargaining. This is
consistent with the public interest inherent in environmental cases,
represented by the government agency concerned.
Se!2 92 +lea--ar&ainin&. "On the s!he"ule" "ate of
arra#.nment/ the !ourt shall !ons#"er 'lea4%ar.a#n#n.
arran.ements2 <here the 'rose!ut#on an" the o0en"e" 'arty
or !on!erne" .o&ernment a.en!y a.ree to the 'lea o0ere" %y
the a!!use"/ the !ourt shall3
(a) Issue an or"er $h#!h !onta#n the 'lea4%ar.a#n#n.
arr#&e" atA
(%) Pro!ee" to re!e#&e e&#"en!e on the !#&#l as'e!t of the
!ase/ #f anyA an"
(!) Ren"er an" 'romul.ate ,u".ment of !on&#!t#on/
#n!lu"#n. the !#&#l l#a%#l#ty for "ama.es2
C O M M E N T S
This section re5uires the consent of the prosecutor, the o;ended
party or concerned government agency in order to successfully arrive at
a valid plea!bargaining agreement. Plea!bargaining is considered at
arraignment in order to avoid the situation where in the course of the
trial, the accused had a change of mind and moves to change of his
initial plea, and o;ers to plea!bargain, which may li#ely disrupt the
proceedings.
RULE 7G 4 PRE4TRIAL
Se!2 72 Settin& of pre-trial conference. " After the
arra#.nment/ the !ourt shall set the 're4tr#al !onferen!e $#th#n
th#rty (E8) "ays2 It may refer the !ase to the %ran!h !ler6 of
!ourt/ #f $arrante" / for 'rel#m#nary !onferen!e to %e set at
least three (E) "ays 'r#or to the 're4tr#al2
Se!2 92 +reliminary conference. " The 'rel#m#nary
!onferen!e shall %e for the follo$#n. 'ur'oses3
25%
(a) To ass#st the 'art#es #n rea!h#n. a settlement of the
!#&#l as'e!t of the !aseA
(%) To mar6 the "o!uments to %e 'resente" as e+h#%#tsA
(!) To atta!h !o'#es thereof to the re!or"s after
!om'ar#son $#th the or#.#nalsA
(") To as!erta#n from the 'art#es the un"#s'ute" fa!ts an"
a"m#ss#ons on the .enu#neness an" "ue e+e!ut#on of the
"o!uments mar6e" as e+h#%#tsA
(e) To !ons#"er su!h other matters as may a#" #n the
'rom't "#s'os#t#on of the !aseA
(f) To re!or" the 'ro!ee"#n.s "ur#n. the 'rel#m#nary
!onferen!e #n the M#nutes of Prel#m#nary Conferen!e to %e
s#.ne" %y the 'art#es an" !ounselA
(.) To mar6 the a;"a&#ts of $#tnesses $h#!h shall %e #n
*uest#on an" ans$er form an" shall !onst#tute the "#re!t
e+am#nat#on of the $#tnessesA an"
(h) To atta!h the M#nutes an" mar6e" e+h#%#ts to the !ase
re!or" %efore the 're4tr#al 'ro'er2
The 'art#es or the#r !ounsels must su%m#t to the %ran!h
!ler6 of !ourt the names/ a""resses an" !onta!t num%ers of the
a;ants2
Se!2 E2 +re-trial duty of the 2ud&e. - Dur#n. the 're4tr#al/
the !ourt shall3
(a) Pla!e the 'art#es an" the#r !ounsels un"er oathA
(%) A"o't the m#nutes of the 'rel#m#nary !onferen!e as
'art of the 're4tr#al 'ro!ee"#n.s/ !on:rm mar6#n. of e+h#%#ts or
su%st#tute" 'hoto !o'#es an" a"m#ss#ons on the .enu#neness
an" "ue e+e!ut#on of "o!uments/ an" l#st o%,e!t an" test#mon#al
e&#"en!eA
(!) S!rut#n#=e the #nformat#on an" statements #n the
a;"a&#ts an" other "o!uments $h#!h form 'art of the
258
'rel#m#nary #n&est#.at#on to.ether $#th other "o!uments
#"ent#:e" an" mar6e" as e+h#%#ts to "eterm#ne further
a"m#ss#ons of fa!t as to3
#2 The !ourtRs terr#tor#al ,ur#s"#!t#on relat#&e to the
o0ense(s) !har.e"A
##2 ?ual#:!at#on of e+'ert $#tnessesA an"
###2 Amount of "ama.esA
(") De:ne fa!tual an" le.al #ssuesA
(e) As6 the 'art#es to a.ree on the s'e!#:! tr#al "ates an"
a"here to the Do$ !hart "eterm#ne" %y the !ourt $h#!h !onta#n
the t#me frames for the "#0erent sta.es of the 'ro!ee"#n.s u'
to 'romul.at#on of "e!#s#onA
(f) Re*u#re the 'art#es to su%m#t to the %ran!h !ler6 of
!ourt the names/ a""resses an" !onta!t num%ers of $#tnesses
that nee" to %e summone" %y su%'oenaA an"
(.) Cons#"er mo"#:!at#on of or"er of tr#al #f the a!!use"
a"m#ts the !har.e %ut #nter'oses a la$ful "efense2
Se!2 F2 >anner of 3uestionin&. " All *uest#ons or
statements must "#re!te" to the !ourt2
Se!2 K2 ,&reements or admission. 4 All a.reements or
a"m#ss#ons ma"e or entere" "ur#n. the 're4tr#al !onferen!e
shall %e re"u!e" #n $r#t#n. an" s#.ne" %y the a!!use" an"
!ounselA other$#se/ they !annot %e use" a.a#nst the a!!use"2
The a.reements .o&ern#n. the matters referre" #n Se!t#on 7/
Rule 77L of the Rules of Court shall %e a''ro&e" %y the !ourt2
Se!2 G2 9ecord of proceedin&s. " All 'ro!ee"#n.s "ur#n.
the 're4tr#al shall %e re!or"e"/ the trans!r#'ts 're'are" an" the
m#nutes s#.ne" %y the 'art#es or the#r !ounsels2
Se!2 >2 +re-trial order. " The !ourt shall #ssue a 're4tr#al
or"er $#th#n ten (78) "ays after the term#nat#on of the 're4tr#al/
sett#n. forth the a!t#ons ta6en "ur#n. the 're4tr#al !onferen!e/
the fa!ts/ st#'ulate"/ the a"m#ss#ons ma"e/ e&#"en!e mar6e"/
the num%er of $#tnesses to %e 'resente" an" the s!he"ule of
25&
tr#al2 The or"er shall %#n" the 'art#es an" !ontrol the !ourse of
a!t#on "ur#n. the tr#al2
C O M M E N T S
Pre!trial receives ample attention under these Rules in order to
facilitate the organi)ation of the trial and the early identifcation and
simplifcation of the issues which shall be resolved at the trial.
Guch emphasis is given on pre!trial in the light of the priority
assigned to environmental cases. "ll means for e<pediting the case
must be resorted to prior to trial in order to shorten the period for
resolution of the controversy.
4ath of the parties 9 The parties are re5uired to be under oath in
pre!trial in order to obviate the use of false or misleading statements at
this stage.
RULE 7> 5 TRIAL
Se!2 72 Continuous trial. "The !ourt shall en"ea&or to
!on"u!t !ont#nuous tr#al $h#!h shall not e+!ee" three (E)
months from the "ate of the #ssuan!e of the 're4tr#al or"er2
C O M M E N T S
The period for the resolution of the cases has been adopted in this
portion of the present Rules pertaining to criminal procedure. %t is with
the 5ualifcation, however, that trial shall be conducted in a continuous
basis, consistent with the thrust of the Rules for speedy resolution of
environmental cases and subject of ection ., infra.
Se!2 9. ,!da/it in lieu of direct e;amination. D A;"a&#t #n
l#eu of "#re!t e+am#nat#on shall %e use"/ su%,e!t to !ross
e+am#nat#on an" the r#.ht to o%,e!t to #na"m#ss#%le 'ort#on of
the a;"a&#t2
C O M M E N T S
To address the delay posed by the traditional method of eliciting
testimonial evidence, the Rules adopt this innovation. %t focuses the
210
e<tent of direct e<amination only to matters covered by the aBdavit,
thus narrowing the scope of in5uiry only to the most pertinent issue at
hand.
Consistent with the constitutional right of the accused to confront
the witnesses against him, the cross!e<amination shall still be
conducted face!toface.
Se!2 E2 Su-mission of memoranda. " The !ourt may re*u#re
the 'art#es to su%m#t the#r res'e!t#&e memoran"a an" #f
'oss#%le/ #n ele!tron#! form/ $#th#n a non4e+ten"#%le 'er#o" of
th#rty (E8) "ays from the "ate the !ase #s su%m#tte" for
"e!#s#on2
<#th or $#thout any memoran"a :le"/ the !ourt shall ha&e
a 'er#o" of s#+ty (G8) "ays to "e!#"e the !ase from the last "ay
of the E84"ay 'er#o" to :le the memoran"a2
C O M M E N T S
ection , of this Rule provides for two specifc periods prior to the
fnal adjudication of the case. The frst period pertains to the
submission of memoranda by the parties. %n recognition of the
advances in information technology, this section permits th submission
of memoranda in electronic form, in order to allow the faster evaluation
of its contents.
The second period pertains to the period within which the court
must decide. Coth periods are non!e<tendible, although subject to a
subse5uent re5uest by the judge concerned before the upreme Court
for an e<tension of the period to resolve the case.
Se!2 F2 Disposition period. " The !ourt shall "#s'ose the
!ase $#th#n a 'er#o" of ten (78) months from the "ate of
arra#.nment2
C O M M E N T S
Consistent with the priority assigned by the Rules for
environmental cases, ection . places a time limit to the disposition of
said cases. Eor clarity, the time limit is placed from the time the court
ta#es cogni)ance of the case, i.e. at arraignment.
211
Se!2 K2 +ro -ono la.yers. " If the a!!use" !annot a0or"
the ser&#!es of !ounsel or there #s no a&a#la%le 'u%l#! attorney/
the !ourt shall re*u#re the Inte.rate" ar of the Ph#l#''#nes to
'ro&#"e pro -ono la$yers for the a!!use"2
C O M M E N T S
This section ta#es into account the possibility of having an
indigent accused who may not have the fnancial capacity to provide for
his own defense.
RULE 7L 5 SUSIDIAR@ LIAILIT@
Se!2 72 Su-sidiary lia-ility. " In !ase of !on&#!t#on of the
a!!use" an" su%s#"#ary l#a%#l#ty #s allo$e" %y la$/ the !ourt
may/ %y mot#on of the 'erson ent#tle" to re!o&er un"er
,u".ment/ enfor!e su!h su%s#"#ary l#a%#l#ty a.a#nst a 'erson or
!or'orat#on su%s#"#ar#ly l#a%le un"er Art#!le 789 an" Art#!le 78E
of the Re&#se" Penal Co"e2
C O M M E N T S
This section codifes the ratio decidendi in Ph#l#''#ne Ra%%#t us
L#nes &s2 Court of A''eals
9BE
and applies the principle therein to
environmental criminal cases, to facilitate recovery of damages and
other relief from the persons subsidiarily liable in the event of
insolvency of the accused.
The phrase 3person entitled to recover6 indicates that other
parties apart from the prevailing party may be entitled to recover.
RULE 7B 5 STRATEHIC LA<SUIT
AHAINST PULIC PARTICIPATION
(SLAPP) IN CRIMINAL CASES
Se!2 72 >otion to dismiss. - U'on the :l#n. of an
#nformat#on #n !ourt an" %efore arra#.nment/ the a!!use" may
:le a mot#on to "#sm#ss on the .roun" that the !r#m#nal !ase #s a
SLAPP2
2&3
;. R. 5!.14%%03, A$,il 14, 2004
212
C O M M E N T S
"s defned by the Rules of Procedure for Fnvironmental Cases,
strategic lawsuit against public participation 'L"PP( refers to an action
whether civil, criminal, or administrative, brought against any person,
institution or any government agency or local government unit or its
oBcials and employees, with the intent to harass, ve<, e<ert undue
pressure or stiNe any legal recourse that such person, institution or
government agency has ta#en or may ta#e in the enforcement of
environmental laws, protection of the environment or assertion of
environmental rights. The main purpose of L"PP suit is to harass, ve<,
e<ert undue pressure or stiNe any legal recourse on any person,
including government from enforcing environmental laws or protecting
or asserting environmental rights.
L"PP is a phenomenon that fnds its root in ?., litigation. %t
generally refers to a civil suit for monetary damages fled against non!
governmental individuals and groups as retaliation for the latter@s
petitioning or communication to the government 'or other relevant
body( on an issue of public concern, or to enforce a right or law such as
environmental rights or statutes. The suits are typically reactions to
past or anticipated opposition to such issues, and are usually instituted
not to vindicate any cogni)able interest. %nstead, a L"PP is brought to
court to chill opposition. Gany of these L"PP actions are brought
within the conte<t of environmental litigation.
" L"PP can be e;ective because it diverts attention away from
the petitioning party and can delay resolution of the original or real
issue. %n addition, persons instituting a L"PP typically have more
resources to sustain litigation against smaller petitioning parties. %n this
regard, a L"PP suit is used to burden fnancially a petitioning party
with frivolous litigation. %n the realm of environmental law where public
participation is central, chilling litigation serves as a serious obstacle to
the enforcement of environment al rights.
The L"PP provisions of the Rules for Fnvironmental Cases,
particularly its criminal procedure aspect, envisage the situation where
persons, institutions or government agencies wor#ing to implement and
enforce policies and projects designed to conserve and preserve
national environmental treasures but were opposed by certain sectors
which have contrary agenda. To deter and discourage the former, the
latter initiate lawsuits D civil, criminal andHor administrative D set up to
harass, ve<, e<ert undue pressure or stiNe any legal recourse that such
213
person, institution or government agency has ta#en or may ta#e to carry
out and enforce environmental laws, or to protect and conserve the
environmental wealth of the country, or to assert environment rights.
The manner by which to allege that a criminal action is a L"PP is
through a motion to dismiss rather than a motion tp 5uash. " motion to
dismiss allows the action to be challenge as a L"PP, while a motion to
5uash is directed at the information. Goreover, granting a motion to
dismiss bars the refling of a L"PP in accordance with the law of the
case. %n contrast, the grant of a motion to 5uash does not bar the fling
of a subse5uent information.
There is no provision on prohibited pleadings under criminal
procedure in environmental cases, Aence, such defense of L"PP can be
validly raised in a motion to dismiss, unli#e in Civil Procedure in
environmental cases where a motion to dismiss is a prohibited pleading
so that the defense of L"PP can only be raised in the answer.
Se!2 92 Summary hearin&. - The hear#n. on the "efense of
a SLAPP shall %e summary #n nature2 The 'art#es must su%m#t
all the a&a#la%le &#"en!e #n su''ort of the#r res'e!t#&e 'os#t#ons2
The 'arty see6#n. the "#sm#ssal of the !ase must 'ro&e %y
su%stant#al e&#"en!e that h#s a!t for the enfor!ement of
en&#ronmental la$ #s a le.#t#mate a!t#on for the 'rote!t#on/
'reser&at#on an" reha%#l#tat#on of the en&#ronment2 The 'arty
:l#n. the a!t#on assa#le" as a SLAPP shall 'ro&e %y
're'on"eran!e of e&#"en!e that the a!t#on #s not a SLAPP2
Se!2 E2 9esolution. " The !ourt shall .rant the mot#on #f
the a!!use" esta%l#shes #n the summary hear#n. that the
!r#m#nal !ase has %een :le" $#th #ntent to harass/ &e+/ e+ert
un"ue 'ressure or st#De any le.al re!ourse that any 'erson/
#nst#tut#on or the .o&ernment has ta6en or may ta6e #n the
enfor!ement of en&#ronmental la$s/ 'rote!t#on of the
en&#ronment or assert#on of en&#ronmental r#.hts2
If the !ourt "en#es the mot#on 'to dismiss( the !ourt shall
#mme"#ately 'ro!ee" $#th the arra#.nment of the a!!use"2
'Fnclosures were supplied.(
214
A C P N O < L E D H M E N T
The commentaries under the criminal procedure aspect of the
Rules of Procedure for Fnvironmental Cases were largely sourced,
adopted and compiled from the relevant portions of the Rationale and
"nnotations to the Rules of Procedure for Fnvironmental Cases '".G. 4o.
02!:!/!C(.
This wor# has been underta#en solely for the academic
consumption of law students, particularly on the subject of Criminal
Procedure.
215