CADC$MIDTERMS$CRIMPRO$ 1!
!
6.! suspension! of! criminal! action! by! reason! of!
prejudicial!question!
! FACTS:
RULE!111!
Section 6. Suspension by reason of prejudicial
question. A petition for suspension of the
criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in
the office of the prosecutor or the court conducting
the preliminary investigation. When the criminal
action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at
any time before the prosecution rests. (6a)
Section 7. Elements of prejudicial question. The
elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue
similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the
resolution of such issue determines whether or not
the criminal action may proceed. (5a)
DOJ-NPS MANUAL
PART III SEC. 23. Concept of prejudicial
question.- A prejudicial question is one the resolution of
which is a logical antecedent of the issue involved in a
case and the cognizance of which pertains to another
tribunal.1 It is based on a fact distinct and separate from
the crime charged but so intimately connected with it
that it determines the guilt or action, it must not only
appear that said case involves facts intimately related to
those upon which the criminal prosecution would be
based but also that in the resolution of the issue or issues
raised in the civil case, the guilt or innocence of the
accused would necessarily be determined.2
SEC. 24. Elements of prejudicial question. - The
essential elements of a prejudicial question are:
! (a) the civil action involves an issue similar or
a) the civil action involves an issue similar
or intimately related to the issue raised
in the criminal action;
b) the resolution of such issue determines
whether or not the criminal action may
proceed ;3 and
c)! the! cognizance! of! the! said! issue! pertains! to!
another! tribunal.innocence! of! the! accused.! To!
suspend!the!criminal!
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
! marry again; otherwise the second marriage will
MARELLA!BOBIS!VS!BOBIS!
!
October 21, 1985, first marriage with one
Maria Dulce B. Javier. Not annulled, nullified or
terminated
January 25, 1996, second marriage with
petitioner Imelda Marbella-Bobis
Third marriage with a certain Julia Sally
Hernandez
February 25, 1998, Imelda Bobis filed bigamy
Sometime thereafter, respondent initiated a
civil action for the judicial declaration of
absolute nullity of his first marriage on the
ground that it was celebrated without a marriage
license
Petitioner argues that respondent should have
first obtained a judicial declaration of nullity of
his first marriage before entering into the second
marriage
*After petitioner sued for bigamy, its just when
the respondent filed a declaration of absolute
nullity.
ISSUE:
Whether or not the subsequent filing of a civil
action for declaration of nullity of a previous
marriage constitutes a prejudicial question to a
criminal case for bigamy
HELD:
A prejudicial question is one which arises in a
case the resolution of which is a logical
antecedent of the issue involved therein.3It is a
question based on a fact distinct and separate
from the crime but so intimately connected with
it that it determines the guilt or innocence of the
accused. Its two essential elements are:7
intimately related to the issue raised in the
criminal action; and
(b) the resolution of such issue determines
whether or not the criminal action may proceed
In Article 40 of the Family Code, respondent,
without first having obtained the judicial
declaration of nullity of the first marriage, can
not be said to have validly entered into the
second marriage. In the current jurisprudence, a
marriage though void still needs a judicial
declaration of such fact before any party can
also be void. The reason is that, without a
judicial declaration of its nullity, the first
marriage is presumed to be subsisting. In the Travel$ supported$ by$ statements$ of$
case at bar, respondent was for all legal intents accounts$ is$ baseless$ and/or$ been$ paid,$
and purposes regarded as a married man at the which$ accused$ very$ well$ knew$ and$ ought$
time he contracted his second marriage with
petitioner. to$ know,$ by$ reason$ of$ accuseds$ position$
Any decision in the civil action for nullity would as$cashier,$was$false.$
not erase the fact that respondent entered into a In$a$resolution$dated$November$20,$1996,$the$City$
second marriage during the subsistence of a first Prosecutor$found$probable$cause$to$indict$private$
marriage. Thus, a decision in the civil case is not respondents$ for$ violation$ of$ said$ law$ and$
essential to the determination of the criminal
charge. It is, therefore, not a prejudicial question accordingly$ filed$ the$ respective$ Informations$
! against$each$of$them$before$the$Metropolitan$Trial$
! Court$(MTC).$
! In$ a$ resolution$ dated$ March$ 9,$ 1998,$ Chief$ State$
ARK!TRAVEL!EXPRESS!VS!ABROGAR! Prosecutor$ Jovencito$ Zuo$ reversed$ the$ City$
!
Prosecutors$ resolution.$ The$ prosecution$ office$ of$
RATIO&DECIDENDI&
Prejudicial+ question+ + When! the! civil! case! is! so! Makati$ then$ filed$ with$ the$ MTC$ a$ Motion$ to$
intimately! connected! with! the! subject! crime! that! it! is! Withdraw$Information.$
determinative! of! the! guilt! or! innocence! of! the! However,$ on$ May$ 15,$ 1998,$ Ark$ Travel$ filed$ an$
respondents!in!the!criminal!cases.! Urgent$ Petition$ for$ Automatic$ Review$ with$ the$
! DOJ.$ DOJ$ then$ directed$ the$ City$ Prosecutor$ to$
QUICK&FACTS& proceed$with$the$prosecution$of$the$criminal$cases$
RTC! and! MTC! grants! Motion! to! Withdraw! Information! in$ a$ resolution$ dated$ May$ 27,$ 1998.$ For$ this$
without! personally! determining! the! probable! cause! for! reason,$ the$ MTC$ issued$ an$ Order$ denying$ the$
the!crime!charged.!! Motion$ to$ Withdraw$ Information$ filed$ by$ the$
! prosecution.$
FACTS& Meanwhile,$ Baguio$ and$ Ira$ filed$ a$ Motion$ for$
Petitioner:!Ark!Travel!Express,!Inc.! Reconsideration$ of$ the$ May$ 27,$ 1998$ resolution.$
Respondents:!The!Presiding!Judge!of!the!Regional!Trial! DOJ$ Undersecretary$ Jesus$ Zozobrado$ granted$ the$
Court!of!Makati,!Branch!150,!Hon.!Zeus!Abrogar,!Violeta! Motion$ for$ Reconsideration$ dated$ June$ 26,$ 1998,$
Baguio!and!Lorelei!Ira! ordering$ the$ withdrawal$ of$ the$ informations$ for$
! false$testimony.$
Ark$ Travel$ Express,$ Inc.$ (Ark$ Travel$ for$ brevity)$
MTC$ however,$ denied$ the$ Motion$ to$ Withdraw$
filed$with$the$City$Prosecutor$of$Makati$a$criminal$
Information$ in$ an$ order$ dated$ July$ 21,$ 1998.$ It$
complaint$ for$ False$ Testimony$ in$ a$ Civil$ Case$
anchors$ its$ decision$ in$ the$ Crespo$ vs.$ Mogul$ case$
against$ private$ respondents$ Violeta$ Baguio$ and$
where$ the$ Supreme$ Court$ held$ that$ once$ an$
Lorelei$Ira.$
information$ is$ filed$ in$ court,$ such$ filing$ sets$ in$
Violeta$ Baguio$ and$ Lorelei$ Ira$ was$ accused$ as$ motion$ the$ criminal$ action$ against$ the$ accused$
having$ given$ false$ testimony$ upon$ a$ material$ fact$ before$ the$ court,$ and$ any$ motion$ to$ dismiss$ or$
in$a$civil$complaint$for$Collection$of$sum$of$money,$ withdraw$ information$ is$ always$ addressed$ to$ the$
torts$ and$ damages$ filed$ by$ Ark$ Travel$ Express$ discretion$of$the$court.$The$denial$or$grant$of$any$
against$New$Filipino$Maritime$Agencies$(NFMA)$in$ motion$ is$ done$ by$ the$ court$ not$ out$ of$
the$following$manner:$ subservience$ to$ the$ secretary$ of$ justice$ but$ in$
o During$ trial$ of$ the$ said$ civil$ case$ in$ which$ faithful$exercise$of$its$judicial$prerogative.$
one$of$the$principal$issues$was$whether$or$
Private$ respondents$ questioned$ the$ MTC$ Orders$
not$payment$of$the$claim$of$Ark$travel$has$
dated$ June$ 10,$ 1998$ and$ July$ 21,$ 1998$ with$ the$
been$ made$ by$ NFMA,$ the$ accused$
respondent$RTC$of$Makati.$
maliciously$testified$that$the$claims$of$Ark$
RTC$ of$ Makati$ held$ that$ MTC$ acted$ with$ grave$

!
abuse$ of$ discretion$ when$ it$ denied$ the$ Motion$ to$
Withdraw$based$solely$on$its$bare$and$ambiguous$
reliance$ on$ the$ Crespo$ doctrine,$ since$ an$
independent$ evaluation$ and$ assessment$ of$ the$
existence$ of$ a$ probable$ cause$ is$ necessary$ before$
such$ orders$ denying$ the$ said$ motions$ could$ be$
issued.$
! of!the!respondents!in!the!criminal!cases.!In!other!words,!
ISSUE&
WON! the! RTC! committed! a! grave! abuse! of! discretion!
when! it! nullified! the! Orders! of! MTC! and! enjoined! the!
said!court!from!hearing!the!criminal!cases!
! Revised!Rules!of!Criminal!Procedure,!to!wit:!
HELD&
(Supreme!Court!discussed!several!points,!but!I!will!only!
include! the! issue! relevant! to! the! topic! which! is!
Prejudicial!Question!)!
! !
! To! constitute! the! crime! of! False! Testimony! in! a!
Civil!Case!under!Article!182!of!the!Revised!Penal!Code,!
the!following!requisites!must!concur:!
1. The$testimony$must$be$given$in$a$civil$case;$
2. The$testimony$must$relate$to$the$issues$presented$
in$the$case;$
3. The$testimony$is$false;$
4. The$ testimony$ must$ be$ given$ by$ the$ defendant$
knowing$the$same$to$be$false;$and$
5. Such$ testimony$ must$ be$ malicious$ and$ given$ with$
and$ intent$ to$ affect$ the$ issues$ presented$ in$ the$
case.$
! filed& in& court& for& trial,& the& petition& to& suspend& shall&
There! is! no! doubt! that! the! first! two! requisites!
are! extant! in! this! case.! The! records! show! that! Ark!
Travel!filed!a!complaint!for!collection!of!sum!of!money,!
torts! and! damages! against! NFMA! and! Angelina! T.!
Rivera.! In! said! civil! case,! private! respondents! were!
presented! by! NFMA! as! witnesses.! They! executed! their!
respective! sworn! statements! and! testified! before! the!
trial! court! that! NFMA! has! no! outstanding! obligation!
with!Ark!Travel!as!the!same!had!been!paid!in!full.!
! orderly! administration! of! justice! dictates! that! the!
The!existence!of!the!last!three!requisites!is!quite!
dubious.!The!falsity!of!the!subject!testimonies!of!private!
respondents! is! yet! to! be! established.! It! is! noted! that! at!
the!time!of!the!filing!of!the!criminal!complaints,!the!civil!
CADC$MIDTERMS$CRIMPRO$ 3!
case! filed! by! Ark! Travel! is! still! pending! decision.! Ark!
Travel! has! yet! to! prove! the! validity! of! its! monetary!
claims! and! damages! against! NFMA.! It! is! only! after! trial!
that! the! RTC! can! assess! the! veracity! or! falsity! of! the!
testimony!and!correspondingly!render!a!decision.!Thus,!
the!civil!case!is!so!intimately!connected!with!the!subject!
crime! that! it! is! determinative! of! the! guilt! or! innocence!
whether! or! not! the! testimonies! of! private! respondents!
in!the!civil!cases!are!false!is!a!prejudicial!question.!It!is!
clear! that! the! elements! of! a! prejudicial! question! are!
present! as! provided! in! Section! 7,! Rule! 111! of! the!
!
SEC.! 7!Elements+ of+ Prejudicial+ question.! The!
elements! of! a! prejudicial! question! are:! (a)! the!
previously! instituted! civil! action! involves! an! issue!
similar! or! intimately! related! to! the! issue! raised! in! the!
subsequent! criminal! action;! and! (b)! the! resolution! of!
such! issue! determines! whether! or! not! the! criminal!
action!may!proceed.!
!
Section! 6,! Rule! 111! of! the! Revised! Rules! of!
Criminal!Procedures!provides:!
!
SEC.! 6.!Suspension+ by+ reason+ of+ prejudicial+
question.!A!petition!for!suspension!of!the!criminal!action!
based!upon!the!pendency!of!a!prejudicial!question!in!a!
civil!action!may!be!filed!in!the!office!of!the!prosecutor!or!
the! court! conducting! the! preliminary!
investigation.!When& the& criminal& action& has& been&
be& filed& in& the& same& criminal& action& at& any& time&
before&the&prosecution&rests.!(Emphasis+supplied)!
!
! Hence,! pending! determination! of! the! falsity! of!
the! subject! testimonies! of! private! respondents! in! the!
civil! case,! the! criminal! action! for! false! testimony! must!
perforce! be! suspended.! As! such,! under! the! attendant!
circumstances,! although! there! is! no! motion! to! suspend!
proceedings! on! the! part! of! the! private! respondents,!
criminal!cases!should!be!suspended.!
!
!
!
PEOPLE!V!CONSING!
! falsification case.[11] The Court of Appeals granted
FACTS!
! restraining order in a resolution dated March 19, 2001.[12]
Sometime in February 1997, respondent Rafael Jose
Consing, Jr. and his mother, Cecilia de la Cruz,[4]
represented to Plus Builders, Inc. (PBI) that they are the
true and lawful owners of a 42,443 square meter lot
situated in Imus, Cavite and covered by Transfer Certificate
of Title No. 687599 in the name of Cecilia de la Cruz. They
further represented that they acquired said lot, which was
previously covered by TCT No. 191408 from Juanito Tan
Teng and Po Willie Yu. Relying on the representations of
respondent and his mother, PBI purchased the questioned
lot.
In April 1999, PBI discovered that respondent and his
mother did not have a valid title over the subject lot. PBI
came to know that Juanito Tan Teng and Po Willie Yu
never sold said lot to respondent and his mother and that
TCT No. 191408 upon which TCT No. 687599 was based
is not on file with the Register of Deeds.
In August 1999, PBI was ousted from the possession of the
disputed lot by Juanito Tan Teng and Po Willie Yu. Despite
written and verbal demands, respondent and his mother
refused to return the amount of P13,369,641.79 alleged to
have been initially paid by PBI.
On July 22, 1999, respondent filed with the Regional Trial
Court of Pasig City, Branch 68, an action for Injunctive
Relief docketed as Civil Case No. SCA 1759, against PBI,
Unicapital Inc, Unicapital Realty Inc., Jaime Martires,
Mariano D. Martinez, Cecilia de la Cruz and 20 other John
Does.[5] Respondent sought a declaration that he was
merely an agent of his mother, Cecilia de la Cruz, and
therefore was not under any obligation to PBI and to the
other defendants on the various transactions involving TCT
No. 687599.
On October 13, 1999, PBI filed against respondent and his
mother a complaint for Damages and Attachment, docketed
as Civil Case No. 99-95381, with Branch 12 of the
Regional Trial Court of Manila.[6] Respondent filed a
motion to dismiss on the ground of forum shopping and
pendency of Civil Case No. SCA 1759.[7]
On January 21, 2000, a criminal case for estafa through
falsification of public document was filed against
respondent Rafael Jose Consing, Jr. and his mother with the
RTC of Imus, Cavite.[8]
On April 7, 2000, respondent filed a motion to defer
arraignment on the ground of prejudicial question, i.e., the
pendency of Civil Case Nos. SCA 1759 and 99-95381.[9]
On January 27, 2000, the trial court denied respondents
motion.
A motion for reconsideration thereof was likewise denied
on February 27, 2001.[10]
Respondent filed a petition for certiorari with prayer for the
issuance of a temporary restraining order and/or writ of
preliminary injunction with the Court of Appeals seeking to
enjoin the arraignment and trial of the estafa through
respondents prayer for the issuance of a temporary
On May 31, 2001, a decision was rendered setting aside the
January 27, 2000 order of the trial court and permanently
enjoining it from proceeding with the arraignment and trial
of the criminal case until the civil cases for Injunctive
Relief and for Damages and Attachment shall have been
finally decided.
Hence, the People of the Philippines, represented by the
Solicitor General, filed the instant petition seeking the
reversal of the May 31, 2001 decision of the Court of
Appeals.
ISSUE:
whether or not the pendency of Civil Case Nos. SCA 1759
and 99-95381, for Injunctive Relief and for Damages and
Attachment, is a prejudicial question
HELD
NO.
A prejudicial question is defined as that which arises in a
case, the resolution of which is a logical antecedent of the
issue involved therein, and the cognizance of which
pertains to another tribunal. The prejudicial question must
be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged
in another court or tribunal. It is a question based on a fact
distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence
of the accused. For a civil action to be considered
prejudicial to a criminal case as to cause the suspension of
the criminal proceedings until the final resolution of the
civil action, the following requisites must be present: (1)
the civil case involves facts intimately related to those upon
which the criminal prosecution would be based; (2) in the
resolution of the issue or issues raised in the civil action,
the guilt or innocence of the accused would necessarily be
determined; and (3) jurisdiction to try said question must be
lodged in another tribunal.[13]
If both civil and criminal cases have similar issues or the
issue in one is intimately related to the issues raised in the
other, then a prejudicial question would likely exist,
provided the other element or characteristic is satisfied. It
must appear not only that
the civil case involves the same facts upon which the
criminal prosecution would be based, but also that the
resolution of the issues raised in the civil action would be
necessarily determinative of the guilt or innocence of the
accused. If the resolution of the issue in the civil action will
not determine the criminal responsibility of the accused in
the criminal action based on the same facts, or there is no
necessity that the civil case be determined first before
taking up the criminal case, therefore, the civil case does
not involve a prejudicial question.

!
In the case at bar, we find no prejudicial question that
would justify the suspension of the proceedings in the
criminal case. The issue in Civil Case No. SCA 1759 for
Injunctive Relief is whether or not respondent merely acted
as an agent of his mother, Cecilia de la Cruz; while in Civil
Case No. 99-95381, for Damages and Attachment, the
question is whether respondent and his mother are liable to
pay damages and to return the amount paid by PBI for the
purchase of the disputed lot. Even if respondent is declared
merely an agent of his mother in the transaction involving
the sale of the questioned lot, he cannot be adjudged free
from criminal liability. An agent or any person may be held
liable for conspiring to falsify public documents.Hence, the
determination of the issue involved in Civil Case No. SCA
1759 for Injunctive Relief is irrelevant to the guilt or
innocence of the respondent in the criminal case for estafa
through falsification of public!
! the motion was filed, the victim died. So, the private
7. REMEDIES$AVAILABLE$
A.!amendment/substation!of!information!
! The trial court admitted the amended information. During
RULE!110!
Section 14. Amendment or substitution. A
complaint or information may be amended, in form
or in substance, without leave of court, at any time
before the accused enters his plea. After the plea
and during the trial, a formal amendment may only
be made with leave of court and when it can be
done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in or
excludes any accused from the complaint or
information, can be made only upon motion by the
prosecutor, with notice to the offended party and
with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall
be furnished all parties, especially the offended
party. (n)
If it appears at any time before judgment that a
mistake has been made in charging the proper
offense, the court shall dismiss the original
complaint or information upon the filing of a new
one charging the proper offense in accordance with
section 19, Rule 119, provided the accused shall
not be placed in double jeopardy. The court may
require the witnesses to give bail for their
appearance at the trial. (14a)
! thereafter and during the trial as to all matters of form, by
SEC. 4. Effect of amendment of information. - In
CADC$MIDTERMS$CRIMPRO$ 5!
case an information is amended, a new preliminary
investigation shall be conducted if the amended charge is
not related to the crime originally charged; if there is a
change in the nature of the crime charged; or if the
information on its face is null and void for lack of
authority to file the same.
!
!
TEEHANKEE!V!MADAYAG!
!
Facts:
On July 19, 1991 an information for the crime of
frustrated murder was filed against Claudio Teehankee Jr.
allegedly committed to Maureen Navarro Hultman.
After the prosecution had rested its case, the petitioner
moved for leave to file a demurrer to evidence, but before
prosecutor filed an omnibus motion for leave of court to
file the amended information. The amended information
filed on October 31, 1991 charges Teehankee of murder.
the arraignment, the petitioner refused to be arraigned on
the amended information contending the lack of a
preliminary investigation thereon. The judge, then,
ordered the plea of "not guilty" be entered for petitioner.
The prosecution was ordered to present its evidence. The
petitioner's counsel manifested that he did not want to
take part in the proceedings because of the legal issue
raised. So, the trial court appointed a counsel de officio to
represent the petitioner.
The petitioner now seeks, among other things, for the SC
to nullify the respondent judge's admittance of the
amended information, and to compel the judge to order
preliminary investigation of the crime charged in the
amended information.
Issue: Whether or not an amended information involving
a substantial amendment, without preliminary
investigation, after the prosecution has rested on the
original information, may legally and validly be admitted.
Held: Yes. Section 14, Rule 110 of the 1985 Rules on
Criminal Procedure provides:
Sec. 14. Amendment. The information or complaint
may be amended, in substance or form, without leave of
court, at any time before the accused pleads; and
leave and at the discretion of the court, when the same
can be done without prejudice to the rights of the accused.
If it appears at any time before judgment that a mistake
has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the
accused would not be placed thereby in double jeopardy
and may also require the witnesses to give bail for their
appearance at the trial.
A substantial amendment consists of the recital of facts
constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of
form. 11 Thus, the following have been held to be merely
formal amendments, viz: (1) new allegations which relate
only to the range of the penalty that the court might
impose in the event of conviction; 12 (2) an amendment
which does not charge another offense different or
distinct from that charged in the original one; 13 (3)
additional allegations which do not alter the prosecution's
theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; and
(4) an amendment which does not adversely affect any
substantial right of the accused, such as his right to
invoke prescription.
Going now to the case at bar, it is evident that frustrated
murder is but a stage in the execution of the crime of
murder, hence the former is necessarily included in the
latter. It is indispensable that the essential element of
intent to kill, as well as qualifying circumstances such as
treachery or evident premeditation, be alleged in both an
information for frustrated murder and for murder, thereby
meaning and proving that the same material allegations
are essential to the sufficiency of the informations filed
for both. This is because, except for the death of the
victim, the essential elements of consummated murder
likewise constitute the essential ingredients to convict
herein petitioner for the offense of frustrated murder.
In the present case, therefore, there is an identity of
offenses charged in both the original and the amended
information. What is involved here is not a variance in the
nature of different offenses charged, but only a change in
the stage of execution of the same offense from frustrated
to consummated murder. This is being the case, we hold
that an amendment of the original information will suffice
and, consequent thereto, the filing of the amended
information for murder is proper.!
! dismiss the appealed less serious physical injury
! case; and that a writ of preliminary injunction
Draculan!vs!donato!
! of the appealed less serious physical injury case be
On June 25, 1973, the Chief of Police of San Isidro,
Isabela filed with the Municipal Court of the said
place, a complaint for Less Serious Physical Injuries
against Florencio Miguel. The case was docketed in
the said court as Criminal Case No. 63.
Tried after pleading not guilty upon arraignment,
accused Miguel was convicted as charged and
thereafter accordingly sentenced in a decision
promulgated on November 14, 1973.
From the aforesaid decision, Miguel appealed to the
then Court of First Instance of Isabela, where his
appeal was docketed as Criminal Case No. V-351
and assigned to Branch V of the said court presided
by the Honorable respondent Judge. 'The record of
the said case was then transmitted and referred by
the Clerk of Court to the Office of the Provincial
Fiscal of Isabela
Upon a review of the evidence made by the
provincial fiscal's office, petitioners found that
accused-appellant Miguel should have been
charged with "Direct Assault Upon a Person in
Authority" it appearing that Benjamin Antonio, the
offended party, is a person in authority then
engaged in the performance of his official duties
when assaulted. In view thereof, petitioners' office,
then conducted a new preliminary investigation and
upon a prima facie showing that direct assault was
actually the, crime committed by accused- appellant
Miguel, petitioners filed with the respondent court t a
Motion to Dismiss the appealed Less Serious
Physical Injury case. Simultaneously, a new
information for Direct Assault was filed against
Miguel which was docketed as Criminal Case No. V-
419 Upon receipt of the records of this assault case,
respondent Judge, in an order dated December 17,
1975, directed that it be returned to the Fiscal's
Office on the ground that it was prematurely filed
considering that at that time, the prosecution's
motion to dismiss the appeal was still pending
resolution.
Undaunted by such a disposition, petitioners then
filed a new information which they caused to be
docketed also as Criminal Case No. V-351 similar to
that of the appealed less serious physical injury
case, and thereafter again moved for the dismissal
of the appealed case. Petitioners' motion was
denied and so with their motion for reconsideration
of the order of denial.
Hence, the instant petition wherein it is prayed that
the aforementioned orders of respondent Judge
dated April 13, 1976 and May 28, 1976 be declared
null and void; that respondent Judge be ordered to
enjoining respondent from proceeding with the trial
issued which should be made permanent after
hearing on the merits.

!
The petition is devoid of merit. Consequently, its
dismissal is in order.
Criminal Case No. V-351 is an appeal, not an
original case. It is before the Court of First Instance
(now Regional Trial Court) of Isabela pursuant to the
appeal interposed by accused Florencio Miguel from
the decision of the Municipal Court of San Isidro
convicting him of Less Serious Physical Injuries. The
Court of First Instance then took cognizance of such
case in the exercise of its appellate jurisdiction. And
since the appeal was subsequent to the passage of
Republic Act No. 6031, 3 which took effect on
August 4, 1969, the appeal must now be disposed of
on the basis of the evidence presented and admitted
in the municipal court. No trial de novo is necessary
but the parties may merely submit and/or be
required to file their respective briefs or memoranda.
4
But since the proceeding before the San Isidro
Municipal Court was not duly recorded because of
the absence of a qualified stenographer, the court of
First Instance of Isabela must now conduct a trial de
novo of the case on appeal.
The question therefore posed before us ismay the
prosecution amend the information and/or file a new
information charging an offense different from that
with which accused-appellant was tried and
convicted in the court below?
Petitioners' answer to this query is in the affirmative,
relying on Section 13 of Rule 110 of the Rules of
Court, 5 which provides:
Section 13. Amendment. The information or
complaint may be amended, in substance or form,
without leave of court, at any time before the
defendant pleads; and thereafter and during the trial
as to all matters of form, by leave and at the
discretion of the court, when the same can be done
without prejudice to the rights of the defendant.
If it appears at any time before judgment that a
mistake has been made in charging the proper
offense, the court may dismiss the original complaint
or information and order the filing of a new one
charging the proper offense, provided the defendant
would not be placed thereby in double jeopardy, and
may also require the witnesses to give bail for their
appearance at the trial.
The above section contains two parts: one
authorizes the amendment of an information or
complaint, in substance or form, without leave of
court, at any time before the defendant pleads, and
thereafter, only as to matters of form. The other
provides that, if it appears at any time before
judgment that a mistake has been made in charging
CADC$MIDTERMS$CRIMPRO$ 7!
the proper offense, the court may dismiss the
original complaint or information and order the filing
of a new one charging the proper offense, provided
the defendant would not be placed in double
jeopardy.
The amendment 6 or the filing of a new case where
there had been a mistake in charging the proper
offense after the dismissal of an existing one, 7
spoken of and therein provided for apply, only to an
original case where no judgment has as yet been
rendered. Much less does the said section apply to
an appealed case such as the instant proceeding. 8
The reason is obvious and that is because the right
to amend or to file a new complaint or information
charging the proper offense after the dismissal of the
original complaint or information, is subject to the
rule on double jeopardy, which petitioners in the
instant case miserably missed,
In the case at bar, the original charges was that of
less serious physical injuries. Whether the new
charge for direct assault with less serious physical
injuries is by way of amendment or through a new
information is immaterial since in both instances
accused's former conviction would be a bar to a
subsequent prosecution for the second offense. This
was the dictum laid down in the case of People vs.
Bonotan 9 and which doctrine was reiterated in the
recent case of Tacas vs. Cariaso 10 Thus:
The charge of direct assault upon a person in
authority with physical injuries contained in the
fiscal's information is not included in the charge
contained in the complaint of the chief of police,
which is merely that of less serious physical injuries
unqualified by any allegation that those injuries were
inflicted upon the offended municipal councilor,
admittedly a person in authority, while he was in the
performance of his official duties or on the occasion
thereof, a qualification essential to the offense
charged in the information. The converse is no less
obvious, that is, that the charge, of direct assault
upon a person in authority with physical injuries as
set out in the information necessarily includes the
offense of less serious physical injuries charged on
the complaint, specially because in both the
information and the complaint, the physical injuries
inflicted are alleged to have required medical
assistance of a period of 14 days and incapacitated
the offended party from labor for the same period of
time. As proof that the offense charged in the
information includes the offense charged in the
complaint, conviction of the defendants of this latter
offense may, without question, be had under the
information if the other ingredients of the crime
charged in said information are not proved. Hence,
the defense of double jeopardy was wen taken. The
order of dismissal was thus affirmed precisely or. the
very same constitutional ground relied upon in this
petition. 11
We find the said pronouncement "on all fours" to the
instant case. Petitioners' submittal not being in
accord therewith may not be sustained.
But the more serious repercussion of which the
petitioners appeared unmindful of, is the fact that
with the withdrawal of the appeal, the old judgment
of conviction is revived and the accused loses his
right to a review of the evidence on appeal by way of
questioning the validity of his conviction. What is
sought to be dismissed is not the main case, 12 but
merely the appeal which was docketed as Criminal
Case No. V-351
WHEREFORE, finding the instant petition to be
without merit, the same is DISMISSED. The
appropriate Regional Trial Court of Isabela to which
Criminal Case No. V-351 was reassigned is,
therefore, hereby directed to proceed immediately
with the trial of the said case until its final
termination.
No pronouncement as to costs.!
ALMEDA!VS!VILLALUZ!
! be required." This is logical because the imposition of an
Facts: Leonardo Almeda (alias Nardong Paa) was
charged, together with five others, with the crime of
qualified theft of a motor vehicle (criminal case 285-
Pasay) in the Circuit Criminal Court of Pasig, Rizal,
presided by Judge Onofre Villaluz. The amount of the
bond recommended for the provisional release of Almeda
was P15,000, and this was approved by the judge with a
direction that it be posted entirely in cash. At the hearing
of 18 February 1970, Almeda asked the trial court to
allow him to post a surety bond in lieu of the cash bond
required of him. This request was denied, and so was an
oral motion for reconsideration, on the ground that the
amended information imputed habitual delinquency and
recidivism on the part of Almeda. At the same hearing,
the city fiscal of Pasay City (Fiscal Gregorio Pineda), thru
his assistant, reiterated his oral motion made at a previous
hearing for amendment of the information so as to include
allegations of recidivism and habitual delinquency in the
particular case of Almeda. The latter vigorously objected,
arguing that (a) such an amendment was premature since
no copies of prior conviction could yet be presented in
court, (b) the motion to amend should have been made in
writing in order to enable him to object formally, and (c)
the proposed amendment would place him in double
jeopardy considering that he had already pleaded not
guilty to the information. The trial court nevertheless
granted the fiscal's motion in open court. An oral motion
for reconsideration was denied. Immediately thereafter,
the assistant fiscal took hold of the original information
and, then and there, entered his amendment by annotating
the same on the back of the document. Almeda forthwith
moved for the dismissal of the charge on the ground of
double jeopardy, but this motion and a motion for
reconsideration were denied in open court. Almeda filed
the present special civil action for certiorari with
preliminary injunction with the Supreme Court.
Issue: Whether the insistence of a cash bond, over any
other surety, renders the recomended bail excessive.
Held: Bail is "the security required and given for the
release of a person who is in the custody of the law, that
he will appear before any court in which his appearance
may be required as stipulated in the bail bond or
recognizance." The purpose of requiring bail is to relieve
an accused from imprisonment until his conviction and
yet secure his appearance at the trial. The accused, as of
right, is entitled to bail prior to conviction except when he
is charged with a capital offense and the evidence of guilt
is strong. This right is guaranteed by the Constitution, and
may not be denied even where the accused has previously
escaped detention, or by reason of his prior absconding.
In order to safeguard the right of an accused to bail, the
Constitution further provides that "excessive bail shall not
unreasonable bail may negate the very right itself. "Where
conditions imposed upon a defendant seeking bail would
amount to a refusal thereof and render nugatory the
constitutional right to bail, we will not hesitate to exercise
our supervisory powers to provide the required remedy."
Herein, the amount fixed for bail, while reasonable if
considered in terms of surety or property bonds, may be
excessive if demanded in the form of cash. A surety or
property bond does not require an actual financial outlay
on the part of the bondsman or the property owner, and in
the case of the bondsman the bond may be obtained by
the accused upon the payment of a relatively small
premium. Only the reputation or credit standing of the
bondsman or the expectancy of the price at which the
property can be sold, is placed in the hands of the court to
guarantee the production of the body of the accused at the
various proceedings leading to his conviction or acquittal.
Upon the other hand, the posting of a cash bond would
entail a transfer of assets into the possession of the court,
and its procurement could work untold hardship on the
part of the accused as to have the effect of altogether
denying him his constitutional right to bail. Aside from
the foregoing, the condition that the accused may have
provisional liberty only upon his posting of a cash bond is
abhorrent to the nature of bail and transgresses our law on
the matter. The sole purpose of bail is to insure the
attendance of the accused when required by the court, and
there should be no suggestion of penalty on the part of the
accused nor revenue on the part of the government. The

!
allowance of a cash bond in lieu of sureties is authorized
in this jurisdiction only because our rules expressly
provide for it. Were this not the case, the posting of bail
by depositing cash with the court cannot be countenanced
because, strictly speaking, the very nature of bail
presupposes the attendance of sureties to whom the body
of the prisoner can be delivered. And even where cash
bail is allowed, the option to deposit cash in lieu of a
surety bond primarily belongs to the accused. Thus, the
trial court may not reject otherwise acceptable sureties
and insist that the accused obtain his provisional liberty
only thru a cash bond. The court is not without devices
with which to meet the situation, considering that
Almeda's past record that is the range of his career in
crime weighs heavily against letting him off easily on a
middling amount of bail. First, it could increase the
amount of the bail bond to an appropriate level. Second,
as part of the power of the court over the person of the
accused and for the purpose of discouraging likely
commission of other crimes by a notorious defendant
while on provisional liberty, the latter could be required,
as one of the conditions of his bail bond, to report in
person periodically to the court and make an accounting
of his movements. And third, the accused might be
warned, though this warning is not essential to the
requirements of due process, that under the 1973
Constitution "Trial may proceed notwithstanding his
absence provided that he has been duly notified and his
failure to appear is unjustified." With respect to the
amount of the bail bond, the trial court is well advised to
consider, inter alia, the following factors, where
applicable: (1) the ability of the accused to give bail: (2)
the nature of the offense; (3) the penalty for the offense
charged; (4) the character and reputation of the accused;
(5) the health of the accused; (6) the character and
strength of the evidence; (7) the probability of the
accused's appearance or non-appearance at the trial; (8)
forfeiture of previous bonds; (9) whether the accused was
a fugitive from justice when arrested; and (10) whether
the accused is under bond for appearance at trial in other
cases. It is not amiss, at this point, to remind all courts to
exercise extreme care and caution in the screening of
bondsmen and sureties in regard to their reputation,
solvency and promptitude. Aside from the other
precautions hitherto considered useful, courts should see
to it that all surety bonds are accompanied by
corresponding clearances from the Office of the Insurance
Commissioner. Bondsmen who cannot make good their
undertakings render inutile all efforts at making the bail
system work in this jurisdiction.
! [T]he informations in the above-entitled cases state the
! names of the accused Luis Padilla and Magsikap
! Ongchenco; the offense of frustrated homicide is clearly
CADC$MIDTERMS$CRIMPRO$ 9!
PEOPLE!VS!CA!
!
In our resolution of February 25, 1976, the petition for
review filed by petitioners was treated as a Special Civil
Action. It seeks (1) to annul and set aside the decision and
resolution, dated December 18, 1974 and July 11, 1975,
respectively, of the Court of Appeals: and, (2) to sustain
in toto the orders, dated January 25, 1974 and June 15,
1974, of the trial Judge which allowed the retention of the
allegation of conspiracy in reference to Criminal Cases
Nos. 4747 and 4748 in the informations filed in Criminal
Cases Nos. 9673 and 9674; or, in the alternative, to direct
the trial judge to allow the amendment of the
informations in Criminal Cases Nos. 4747 and 4748 so as
to include Luiz Padilla and Magsikap Ongchenco as co-
accused of Sixto Ruiz and to dismiss the informations in
Criminal Cases Nos. 9673 and 9674.
As a result of a shooting incident at Sta. Lucia Street,
Mandaluyong, Rizal, on June 5, 1971, two informations
for frustrated homicide were filed against Sixto Ruiz in
the Court of First Instance of Rizal on February 21, 1972.
In Criminal Case No. 4747, Ernesto Bello was named as
the victim, while in Criminal Case No. 4748, Rogelio
Bello was the complainant.
Upon arraignment, Sixto Ruiz pleaded "not guilty" to the
two informations in said Criminal Cases Nos. 4747 and
4748. However, a reinvestigation of these two cases was
made in the then Department of Justice, following which
State Prosecutor Lilia C. Lopez filed a motion for leave of
court to amend the informations on the ground that the
evidence disclosed a prima facie case against Luis Padilla
and Magsikap Ongchenco who acted in conspiracy with
Sixto Ruiz.
Sixto Ruiz filed his opposition to the motion, while Luis
Padilla and Magsikap Ongchenco submitted their
comment.
The trial Judge denied the motion to amend the
information saying that allowance of the amendment
alleging conspiracy would be amending the manner of
committing the crime and thereby would constitute a
substantial amendment.
As a consequence, State Prosecutor Lilia C. Lopez filed
two new informations for frustrated homicide against
Luis Padilla and Magsikap Ongchenco (Criminal Cases
Nos. 9673 and 9674) alleging that the two conspired with
Sixto Ruiz who was referred to as the accused in Criminal
Cases Nos. 4747 and 4748.
Padilla and Ongchenco moved to quash the two new
informations. The motion was denied by the lower court
in its order of January 25, 1974, saying:
designated in each information; the acts or omissions
constituting the offense charged are stated in ordinary and
concise language without repetition sufficient to enable a
person of common understanding to know what offense is
charged and for the Court to pronounce proper judgment;
the names and surnames of the persons, Ernesto Bello and
Rogelio Bello, against whom the offenses were
committed are stated in the informations; and that both
offenses were committed on or about the 5th day of June,
1971, in the Municipality of Mandaluyong, Province of
Rizal, Philippines.
ACCORDINGLY, the motion to quash is hereby denied
for lack of merit.
Likewise, Sixto Ruiz filed in said Criminal Cases Nos.
9673 and 9674 a motion to permit to quash and/or strike
out the allegation of conspiracy in the two informations.
The trial Judge, on June 15, 1974, ordered the striking out
from the records the aforesaid motion and clarified that
"the allegation of conspiracy in those cases does not alter
the theory of the case, nor does it introduce innovation
nor does it present alternative imputation nor is it
inconsistent with the original allegations. "
From these orders of the lower court, Sixto Ruiz, Luis
Padilla and Magsikap Ongchenco went to the Court of
Appeals on a petition for certiorari with preliminary
injunction (CA G.R. No. 03146-SP) alleging that the trial
Judge exceeded his jurisdiction or abused his judicial
discretion in issuing the orders, dated January 25, 1974
and June 15, 1974, in Criminal Cases Nos. 9673 and
9674.
The Court of Appeals rendered its decision, the
dispositive portion of which reads as follows:
WHEREFORE, we hold that the -respondent Judge
exceeded his jurisdiction and/or abused his discretion in
denying the motion of petitioner Sixto Ruiz for
permission to file a motion to strike out the allegation of
conspiracy in the informations filed in Criminal Cases
Nos. 9673 and 9674 (CA Rollo, p. 89), in striking out
from the records the motion of petitioner Sixto Ruiz to
strike out the allegation of conspiracy inserted in the
informations filed in Criminal Cases Nos. 9673 and 9674
(Ibid., p. 93), and in denying the motion for
reconsideration filed by the petitioners, Luis Padilla and
Magsikap Ongchenco (Ibid., p. 81).
Accordingly, the petition for certiorari is hereby granted
and the questioned orders of the respondent court dated
January 25, 1974 and June 15, 1974 (Annexes K and Q,
CA Rollo, pp. 76, 107) are partially annulled and set aside
insofar as the petitioner Sixto Ruiz is concerned. The
allegation of conspiracy implicating Sixto Ruiz and the
reference to Criminal Cases Nos. 4748 and 4747 in the
informations filed in Criminal Cases Nos. 9673 and 9674,
respectively, are hereby ordered deleted and stricken out
of the said informations and records of the said cases.
The motion for reconsideration filed by herein petitioners
to the foregoing decision, dated December 18, 1974 of the
Court of Appeals was denied "for lack of merit" in its
resolution, dated July 11, 1975.
There is merit in this special civil action. The trial Judge
should have allowed the amendment in Criminal Cases
Nos. 4747 and 4748 considering that the amendments
sought were only formal. As aptly stated by the Solicitor
General in his memorandum, "there was no change in the
prosecution's theory that respondent Ruiz wilfully,
unlawfully and feloniously attacked, assaulted and shot
with a gun Ernesto and Rogelio Bello ... . The
amendments would not have been prejudicial to him
because his participation as principal in the crime charged
with respondent Ruiz in the original informations, could
not be prejudiced by the proposed amendments."
In a case (Regala vs. CFI, 77 Phil. 684), the defendant
was charged with murder. After plea, the fiscal presented
an amended information wherein two other persons were
included as co-accused. There was further allegation that
the accused and his co-defendants had conspired and
confederated together and mutually aided one another to
commit the offense charged. The amended information
was admitted, following which the fiscal sought the
discharge of the two other co-defendants in order to
utilize them as prosecution witnesses. The court granted
the discharge. His appeal having been denied as well as
his motion for reconsideration of the denial of the appeal,
defendant filed a petition for a writ of certiorari. It was
alleged that the admission of the amendment was an
abuse of discretion. This Court held:
La inclusion de dos acusados y la adicion de las palabras:
'by conspiring, confederating and helping one another' en
la querella enmendada es una enmienda de forma. En la
primera querella se acusa al recurrente de autor y en la
enmendada de coautor pero su responsabilidad es la
misma en ambas. El cambio solo se refiere a la forma de
ejecucion del delito; pero no a la sustancia del delito
mismo. La forma de ejecucion es mas bien materia de
pruebas y no de algaciones, y los detalles alegados en la
querella enmendada pudieron haberse probado bajo la
querella original.
Otherwise stated, the amendments of Criminal Cases Nos.
4747 and 4748 would not have prejudiced Ruiz whose
participation as principal in the crimes charged did not
change. When the incident was investigated by the fiscal's
office, the respondents were Ruiz, Padilla and
Ongchenco. The fiscal did not include Padilla and
Ongchenco in the two informations because of
"insufficiency of evidence." It was only later when
Francisco Pagcalinawan testified at the reinvestigation
that the participation of Padilla and Ongchenco surfaced
and, as a consequence, there was the need for the
amendment of the informations or the filing of new ones
against the two.
The fact that the trial court denied the motion of the
prosecution to amend the informations in Criminal Cases
Nos. 4747 and 4748 was no bar to the filing of the new

!
informations. The allegation in Criminal Cases Nos. 9673
and 9674 filed against Luis Padilla and Magsikap
Ongchenco that the two conspired and confederated with
Sixto Ruiz merely describe the fact that the latter was
already charged with the same offense. It is only a
reference to the two cases already filed against Ruiz
wherein he alone stands as the defendant. It does not
make Ruiz a co-defendant of Padilla and Ongchenco in
the two new informations. It is incorrect to say that the
allegation of conspiracy in Criminal Cases Nos. 9673 and
9674 include Ruiz as a defendant in the said cases. In
fact, and as aptly observed by the petitioners, the lower
court did not order the arrest of Sixto Ruiz in Criminal
Cases Nos. 9673 and 9674. Padilla and Ongchenco were
the only ones against whom warrants were issued; nor
was he arraigned in said cases. Padilla and Ongchenco
were the only ones arraigned and they pleaded not guilty.
Thus, inasmuch as Ruiz is not a defendant in Criminal
Cases Nos. 9673 and 9674, he can not file a motion to
quash the same. He has no personality or standing in said
cases and, therefore, it was improper for him to have filed
the motion to quash. ACCORDINGLY, the decision and
resolution, dated December 18, 1974 and July 11, 1975,
respectively, of the Court of Appeals are hereby SET
ASIDE. Furthermore, the orders of the lower court, dated
January 25, 1974 and June 15, 1974, allowing the
retention of the allegation of conspiracy and the reference
to Criminal Cases Nos. 4747 and 4748 in the informations
filed in Criminal Cases Nos. 9673 and 9674, are
SUSTAINED.
SO ORDERED.!
! filed except as provided in section 6 of this rule. If
B.!MOTION!TO!QUASH!
! not be discharged unless admitted to bail. If no
RULE!117!
Section 1. Time to move to quash. At any time
before entering his plea, the accused may move to
quash the complaint or information. (1)
Section 2. Form and contents. The motion to
quash shall be in writing, signed by the accused or
his counsel and shall distinctly specify its factual
and legal grounds. The court shall consider no
ground other than those stated in the motion,
except lack of jurisdiction over the offense charged.
(2a)
Section 3. Grounds. The accused may move to
quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an
offense;
(b) That the court trying the case has no jurisdiction
over the offense charged;
(c) That the court trying the case has no jurisdiction
CADC$MIDTERMS$CRIMPRO$ 11!
over the person of the accused;
(d) That the officer who filed the information had no
authority to do so;
(e) That it does not conform substantially to the
prescribed form;
(f) That more than one offense is charged except
when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been
extinguished;
(h) That it contains averments which, if true, would
constitute a legal excuse or justification; and
(i) That the accused has been previously convicted
or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated
without his express consent. (3a)
Section 4. Amendment of the complaint or
information. If the motion to quash 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. (4a)
If it is based on the ground that the facts charged
do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the
defect by amendment. The motion shall be granted
if the prosecution fails to make the amendment, or
the complaint or information still suffers from the
same defect despite the amendment. (n)
Section 5. Effect of sustaining the motion to quash.
If the motion to quash is sustained, the court
may order that another complaint or information be
the order is made, the accused, if in custody, shall
order is made or if having been made, no new
information is filed within the time specified in the
order or within such further time as the court may
allow for good cause, the accused, if in custody,
shall be discharged unless he is also in custody for
another charge. (5a)
Section 6. Order sustaining the motion to quash
not a bar to another prosecution; exception. An
order sustaining the motion to quash is not a bar to
another prosecution for the same offense unless
the motion was based on the grounds specified in
section 3 (g) and (i) of this Rule. (6a)
Section 7. Former conviction or acquittal; double
jeopardy. When an accused has been convicted
or acquitted, or the case against him dismissed or
otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge
sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or
the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof,
or for any offense which necessarily includes or is
necessarily included in the offense charged in the
former complaint or information.
However, the conviction of the accused shall not be
a bar to another prosecution for an offense which
necessarily includes the offense charged in the
former complaint or information under any of the
following instances:
(a) the graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge;
(b) the facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party except as provided in section 1 (f) of
Rule 116.
In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the judgment,
he shall be credited with the same in the event of
conviction for the graver offense. (7a)
Section 8. Provisional dismissal. A case shall
not be provisionally dismissed except with the
express consent of the accused and with notice to
the offended party.
The provisional dismissal of offenses punishable by
imprisonment not exceeding six (6) years or a fine
of any amount, or both, shall become permanent
one (1) year after issuance of the order without the
case having been revived. With respect to offenses
punishable by imprisonment of more than six (6)
years, their provisional dismissal shall become
permanent two (2) years after issuance of the order
without the case having been revived. (n)
Section 9. Failure to move to quash or to allege
any ground therefor. The failure of the accused
to assert any ground of a motion to quash before
he pleads to the complaint or information, either
because he did not file a motion to quash or failed
to allege the same in said motion, shall be deemed
a waiver of any objections based on the grounds
provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule. (8)
! presided over by Judge Madayag, cited as ground of the
RULE!119!
Section 19. When mistake has been made in
charging the proper offense. When it becomes
manifest at any time before judgment that a
mistake has been made in charging the proper
offense and the accused cannot be convicted of the
offense charged or any other offense necessarily
included therein, the accused shall not be
discharged if there appears good cause to detain
him. In such case, the court shall commit the
accused to answer for the proper offense and
dismiss the original case upon the filing of the
proper information. (11a)
!
CRUZ!V!CA!
!
Petitioner Teodoro D. Cruz, Jr. raises procedural issues
in this petition to review the decision of the respondent
Court of Appeals in C.A.-G.R. SP No. 11771 dated
April 29, 1988, and its resolution of June 6, 1988,
denying his motion for reconsideration.
The petitioner was charged before the Regional Trial
Court of Makati, along with several others, in four
separate informations for estafa thru falsification of
public documents.
It was alleged that the petitioner, together with Melania
Guerrero, who produced a special power of attorney
claimed establish have been executed by the late
Clemente Guerrero, had conspired with their co-accused
in selling some properties of the decedent to the widow's
sister, Luz Andico, through fictitious deeds of sale
notarized by the petitioner sometime in November and
December of 1980.
Upon arraignment on June 1, 1984, the petitioner and
his co-accused entered a plea of not guilty.
Subsequently, the petitioner filed a motion to dismiss on
the ground that the four informations "(did) not charge
an offense." At the hearing on this motion, the petitioner
submitted testimonial and documentary evidence which
was not refuted by the prosecution. For its part, the
prosecution submitted no evidence at an but later moved
to deny the motion.
The motion to dismiss-to was eventually denied by the
trial court, 1 as so was the subsequent motion for
reconsideration. 2 The petitioner questioned the denial
of the motions before this Court, which referred the case
to the Court of Appeals. On April 29, 1988, the
respondent courts 3 dismissed the petition, holding inter
alia as follows:
Petitioner unabashedly admits that the motion to dismiss
in the instant criminal cases was filed after the
arraignment so that the cases could not be refiled again
considering the principle of double jeopardy. But this
precisely begs the issue. The respondent Court, then
denial of the motion to dismiss to avoid technicalities
that may arise later. This is interrelated to the first
ground in the denial interest of substantial justice that
the prosecution could adduce evidence during the trial.
Thus, to hold otherwise is to sanction a shrewd
maneuver by petitioner wherein he files a motion to

!
quasi/dismiss after arraignment, presents his evidence
supporting his ground therefor, and without the State
being able to present its evidence in chief. Under the
circumstances, what is needed is a full-blown hearing.
xxxxxxxxx
Moreover, assuming that the procedure pursued by the
petitioner in outright presenting his evidence in support
of his motion to dismiss, although the prosecution has
not as yet presented its evidence in chief is sanctioned
by the Rules, still the respondent Court, under the
circumstances, did not abuse its discretion in denying
the motion to dismiss and subsequently, the motion for
reconsideration. Respondent Court must have been not
convinced of the evidence presented, hence, its judicial
prerogative to deny the dismissal of the charges.
What is essential and important is for the petitioner to
show by his own evidence that the documents, subject
of the charges, were prepared and notarized by him
clearly prior to the death of Clemente Guerrero on June
24, 1980 and not simply prior to the months of
November and December, 1980 when the offense was
committed, as alleged in the Information because each
Information may be amended as regards the date of the
commission of the offense without impairing the rights
of the petitioner (People v. Gerardo Rivera, et al., 33
SCRA 746). The amendment will only be a matter of
form and will not "affect the nature and essence of the
crime as only charged."
The petitioner is now before us on certiorari and faults
the above-quoted decision on the following grounds:
(1) The court proceedings on petitioner's motion to
dismiss are clearly sanctioned by law and jurisprudence.
(2) The prosecution is in estoppel to question said
proceedings.
(3) The informations do not charge an offense.
(4) There exists a variance between the allegations in
the information and the evidence presented in the
motion to dismiss.
(5) The documents were notarized on their stated dates.
(6) Substantial justice demands the dismissal of the
informations filed against herein petitioner.
The petition must fail.
It is axiomatic that a complaint or information must
state every single fact necessary to constitute the offense
charged; otherwise, a motion to dismiss/quash on the
ground that it charges no offense may be properly
sustained. The fundamental test in considering a motion
to quash on this ground is whether the facts alleged, if
hypothetically admitted, will establish the essential
elements of the offense as defined in the law. 4
Contrary to the petitioner's contention, a reading of the
informations will disclose that the essential elements of
the offense charged are sufficiently alleged. It is not
CADC$MIDTERMS$CRIMPRO$ 13!
proper therefore to resolve the charges at the very
outset, in a preliminary hearing only and without the
benefit of a full-blown trial. The issues require a fuller
examination. Given the circumstances of this case, we
feel it would be unfair to shut off the prosecution at this
stage of the proceedings and to dismiss the informations
of the basis only of the petitioner's evidence, such as it
is.
It is clear that the trial judge did not commit grave abuse
of discretion when he denied the motion to dismiss on
the grounds that "(a) interest of substantial justice that
the prosecution could adduce evidence during the trial;
and (b) to avoid technicalities that may arise later." 5 On
the contrary, his action was authorized under U.S. v.
Barredo, 6 where this Court said:
Upon a motion of the provincial fiscal to dismiss a
complaint upon which an accused person has been
remanded for trial by a justice of the peace, it rests in
the sound discretion of the judge whether to accede to
such motion or not. Ordinarily, of course, he will
dismiss the action in accordance with the suggestion of
an experienced fiscal who has personally investigated
the facts. But if has personally investigated the facts.
But if he is not satisfied with the reason assigned by the
fiscal, or if it appears to him from the record of the
proceedings in the court of the justice of the peace, or as
a result of information furnished by the private
prosecutor, or otherwise, that the case should not be
dismissed, he may deny the motion.
Indeed, as pointed out by the Solicitor General, this
denial was proper because the petitioner failed to
controvert in his motion to dismiss the following
substantial circumstances alleged in the affidavit
complaint:
(1) That the vendee, Luz Andico (sister of the accused
Melania Guerrero), has no visible means to purchase
said properties;
(2) That the capital gains taxes for the alleged sales
were paid only in December 1980, when it should have
been paid within 30 days from the date of the sale
(National Internal Revenue Code);
(3) That the Deeds of Sale were presented for
registration to the registries concerned only in
November and December, 1980;
(4) That the antedating of the documents was made
possible by the fact that notary public Teodoro B. Cruz,
Jr. (herein petitioner) as late as March, 1981 had not
submitted his notarial report together with the copies of
the documents he notarized for 1980.
The petitioner's contention that the questioned
transactions were already in existence before the months
of November and December 1980, when they were
supposedly falsified, is a matter of defense best
examined during the trial rather than in the preliminary
hearing on his motion to dismiss. The prosecution
should be given ample opportunity to prove the
allegations in the informations at the appropriate time,
and that is the trial itself. The proper time to offer it,
following the normal procedure prescribed in Rule 119,
Section 3 of the Rules of Court, is after the prosecution
shall have presented its pay evidence during the trial.
This is in accord ,with People v.Cadabis, 7
where this Court held:
Save where the Rules expressly permit the investigation
of facts alleged in a motion to quash, the general
principle is that in the hearing of such motion only such
facts as are alleged in the information, and those
admitted by the fiscal, should be taken into account in
the resolution thereof. Matters of defense can not be
produced during the hearing of such motions, except
where the rules expressly permit, such as extinction of
criminal liability, prescription and former jeopardy.
(Emphasis supplied).
But we do not agree with the ruling of the respondent
court that the motion to quash should have been filed
before the petitioner and his co-accused were arraigned,
conformably to Section 1 of Rule 117 of the Rules of
Court, which provides:
Sec. 1. Time to move to quash. At any time before
entering his plea, the accused may move to quash the
complaint or information.
It is true that a person who does not move to quash a
complaint or information until after he has pleaded is
deemed to have waived all objections then available
which are grounds of a motion to quash. 8 However,
this is subject to exception. By express provision of Sec.
8 of the same rule, failure to assert certain grounds in a
motion to quash filed prior to the plea does not operate
as a waiver of the right to invoke them later. Even after
arraignment, a motion to dismiss the information may
be filed if it is based on the ground that: (a) the
information charges no penalty or the offense has been
extinguished; and (d) that double jeopardy has attached.
The petitioner contends that the prosecution is now
estopped from questioning the motion to dismiss,
having participated without objection in the hearing
thereof and not having controverted the evidence
adduced by the movant at that time. This is untenable.
Estoppel does not he against the government because of
the supposedly mistaken acts or omissions of its agents.
As we declared in People v. Castaeda, 9 "there is the
long familiar rule that erroneous application and
enforcement of the law by public officers do not block
subsequent correct application of the statute and that the
government is never estopped by mistake or error on the
part of its agents."
It remains to observe that an order denying a motion to
quash is interlocutory and therefore not appealable, nor
can it be the subject of a petition for certiorari. Such
order may only be reviewed in the ordinary course of
law by an appeal from the judgment after trial. The
petitioner should have proceeded with the trial of the
case in the court below, without prejudice to his right, if
final judgment is rendered against him, to raise the same
question before the proper appellate court.
The procedure was well defined in Acharon v. Purisima,
10 thus:
. . . Moreover, when the motion to quash filed by
Acharon to nullify the criminal cases filed against him
was denied by the Municipal Court of General Santos
his remedy was not to file a petition for certiorari but to
go to trial without prejudice on his part to reiterate the
special defenses he had invoked in his motion and, if,
after trial on the merits, an adverse decision is rendered,
to appeal therefrom in the manner authorized by law.
This is the procedure that he should have followed as
authorized by law and precedents. Instead, he took the
usual step of filing a writ of certiorari before the Court
of First Instance which in our opinion is unwarranted it
being contrary to the usual course of law.
Where it is clear that the information does not really
charge an offense, the case against the accused must be
dropped immediately instead of subjecting him to the
anxiety and inconvenience of a useless trial. The
accused is entitled to such consideration.1wphi1 And
indeed, even the prosecution will benefit from such a
dismissal because it can then file a corrected
information provided the accused had not yet pleaded
and jeopardy has not yet attached. There is no point in
proceeding under a defective information that can never
be the basis of a valid conviction.1wphi1
But such is not the situation in the case at bar. As
already observed, the challenged informations are not
insufficient on their face and neither did the evidence
presented at the preliminary hearing justify their
dismissal even before the trial had commenced. If
"substantial justice" is to be accorded by this Court, as
the petitioner insists, then the step it must take is to
sustain the denial of the motion to dismiss and allow the
criminal cases to follow their normal course. That is
what we rule now.
WHEREFORE, the petition is DENIED. Criminal Cases
Nos. 7332, 7333, 7334 and 7335 are remanded to the
Regional Trial Court of Makati, Branch 145, for further
proceedings. Costs against the petitioner.
SO ORDERED.!
!
C.!Bill!of!Particulars!
!
RULE! 116! Section 9. Bill of particulars. The
accused may, before arraignment, move for a bill of
particulars to enable him properly to plead and to
prepare for trial. The motion shall specify the
alleged defects of the complaint or information and
the details desired. (10a)

!
D. PROVISIONAL REMEDIES
RULE 127
Section 1. Availability of provisional remedies.
The provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
connection with the civil action deemed instituted
with the criminal action. (1a)
Section 2. Attachment. When the civil action is
properly instituted in the criminal action as provided
in Rule 111, the offended party may have the
property of the accused attached as security for the
satisfaction of any judgment that may be recovered
from the accused in the following cases:
(a) When the accused is about to abscond from the
Philippines;
(b) When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the accused
who is a public officer, officer of a corporation,
attorney, factor, broker, agent, or clerk, in the
course of his employment as such, or by any other
person in a fiduciary capacity, or for a willful
violation of duty;
(c) When the accused has concealed, removed, or
disposed of his property, or is about to do so; and
a) When the accused resides outside the
Philippines. (2a)
RULE 57
Preliminary Attachment
Section 1. Grounds upon which attachment may
issue. At the commencement of the action or at
any time before entry of judgment, a plaintiff or any
proper party may have the property of the adverse
party attached as security for the satisfaction of any
judgment that may be recovered in the following
cases:
(a) In an action for the recovery of a specified
amount of money or damages, other than moral
and exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the
Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use
by a public officer, or an officer of a corporation, or
an attorney, factor, broker, agent, or clerk, in the
course of his employment as such, or by any other
person in a fiduciary capacity, or for a willful
violation of duty;
(c) In an action to recover the possession of
CADC$MIDTERMS$CRIMPRO$ 15!
property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof,
has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or
an authorized person;
(d) In an action against a party who has been guilty
of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in
the performance thereof;
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with
intent to defraud his creditors; or
(f) In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may be served by publication. (1a)
Section 2. Issuance and contents of order. An
order of attachment may be issued either ex parte
or upon motion with notice and hearing by the court
in which the action is pending, or by the Court of
Appeals or the Supreme Court, and must require
the sheriff of the court to attach so much of the
property in the Philippines of the party against
whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand,
unless such party makes deposit or gives a bond
as hereinafter provided in an amount equal to that
fixed in the order, which may be the amount
sufficient to satisfy the applicant's demand or the
value of the property to be attached as stated by
the applicant, exclusive of costs. Several writs may
be issued at the same time to the sheriffs of the
courts of different judicial regions. (2a)
Section 3. Affidavit and bond required. An order
of attachment shall be granted only when it appears
by the affidavit of the applicant, or of some other
person who personally knows the facts, that a
sufficient cause of action exists, that the case is
one of those mentioned in section 1 hereof, that
there is no other sufficient security for the claim
sought to be enforced by the action, and that the
amount due to the applicant, or the value of the
property the possession of which he is entitled to
recover, is as much as the sum for which the order
is granted above all legal counterclaims. The
affidavit, and the bond required by the next
succeeding section, must be duly filed with the
court before the order issues. (3a)
Section 4. Condition of applicant's bond. The
party applying for the order must thereafter give a
bond executed to the adverse party in the amount
fixed by the court in its order granting the issuance
of the writ, conditioned that the latter will pay all the
costs which may be adjudged to the adverse party
and all damages which he may sustain by reason
of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto. (4a)
Section 5. Manner of attaching property. The
sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await
judgment and execution in the action, only so much
of the property in the Philippines of the party
against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant's demand, unless the former makes a
deposit with the court from which the writ is issued,
or gives a counter-bond executed to the applicant,
in an amount equal to the bond fixed by the court in
the order of attachment or to the value of the
property to be attached, exclusive of costs. No levy
on attachment pursuant to the writ issued under
section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the
complaint, the application for attachment the
applicant's affidavit and bond, and the order and
writ of attachment, on the defendant within the
Philippines.
The requirement of prior or contemporaneous
service of summons shall not apply where the
summons could not be served personally or by
substituted service despite diligent efforts, or the
defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a
non-resident of the Philippines, or the action is one
in rem or quasi in rem. (5a)
Section 6. Sheriff's return. After enforcing the
writ, the sheriff must likewise without delay make a
return thereon to the court from which the writ
issued, with a full statement of his proceedings
under the writ and a complete inventory of the
property attached, together with any counter-bond
given by the party against whom attachment is
issued, and serve copies thereof on the applicant.
(6a)
Section 7. Attachment of real and personal
property; recording thereof. Real and personal
property shall be attached by the sheriff executing
the writ in the following manner:
(a) Real property, or growing crops thereon, or any
interest therein, standing upon the record of the
registry of deeds of the province in the name of the
party against whom attachment is issued, or not
appearing at all upon such records, or belonging to
the party against whom attachment is issued and
held by any other person, or standing on the
records of the registry of deeds in the name of any
other person, by filing with the registry of deeds a
copy of the order, together with a description of the
property attached, and a notice that it is attached,
or that such real property and any interest therein
held by or standing in the name of such other
person are attached, and by leaving a copy of such
order, description, and notice with the occupant of
the property, if any, or with such other person or his
agent if found within the province. Where the
property has been brought under the operation of
either the Land Registration Act or the Property
Registration Decree, the notice shall contain a
reference to the number of the certificate of title, the
volume and page in the registration book where the
certificate is registered, and the registered owner or
owners thereof.
The registrar of deeds must index attachments filed
under this section in the names of the applicant, the
adverse party, or the person by whom the property
is held or in whose name it stands in the records. If
the attachment is not claimed on the entire area of
the land covered by the certificate of title, a
description sufficiently accurate for the identification
of the land or interest to be affected shall be
included in the registration of such attachment;
(b) Personal property capable of manual delivery,
by taking and safely keeping it in his custody, after
issuing the corresponding receipt therefor.
(c) Stocks or shares, or an interest in stocks or
shares, of any corporation or company, by leaving
with the president or managing agent thereof, a
copy of the writ, and a notice stating that the stock
or interest of the party against whom the
attachment is issued is attached in pursuance of
such writ;
(d) Debts and credits, including bank deposits,
financial interest, royalties, commissions and other
personal property not capable of manual delivery,
by leaving with the person owing such debts, or
having in his possession or under his control, such
credits or other personal property, or with his agent,
a copy of the writ, and notice that the debts owing
by him to the party against whom attachment is
issued, and the credits and other personal property
in his possession, or under his control, belonging to
said party, are attached in pursuance of such writ;
(e) The interest of the party against whom
attachment is issued in property belonging to the
estate of the decedent, whether as heir, legatee, or
devisee, by serving the executor or administrator or
other personal representative of the decedent with
a copy of the writ and notice that said interest is
attached. A copy of said writ of attachment and of
said notice shall also be filed in the office of the
clerk of the court in which said estate is being
settled and served upon the heir, legatee or
devisee concerned.
If the property sought to be attached is in custodia
legis, a copy of the writ of attachment shall be filed

!
with the proper court or quasi-judicial agency, and
notice of the attachment served upon the custodian
of such property. (7a)
Section 8. Effect of attachment of debts, credits
and all other similar personal property. All
persons having in their possession or under their
control any credits or other similar personal
property belonging to the party against whom
attachment is issued, or owing any debts to him, at
the time of service upon them of the copy of the writ
of attachment and notice as provided in the last
preceding section, shall be liable to the applicant
for the amount of such credits, debts or other
similar personal property, until the attachment is
discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or
transferred, or such debts are paid, to the clerk,
sheriff, or other proper officer of the court issuing
the attachment. (8a)
Section 9. Effect of attachment of interests in
property belonging to the estate of a decedent.
The attachment of the interest of an heir, legatee,
or devisee in the property belonging to the estate of
a decedent shall not impair the powers of the
executor, administrator, or other personal
representative of the decedent over such property
for the purpose of administration. Such personal
representative, however, shall report the
attachment to the court when any petition for
distribution is filed, and in the order made upon
such petition, distribution may be awarded to such
heir, legatee or devisee, but the property attached
shall be ordered delivered to the sheriff making the
levy, subject to the claim of such heir, legatee, or
devisee, or any person claiming under him. (9a)
Section 10. Examination of party whose property is
attached and persons indebted to him or controlling
his property; delivery of property to sheriff. Any
person owing debts to the party whose property is
attached or having in his possession or under his
control any credit or other personal property
belonging to such party, may be required to attend
before the court in which the action is pending, or
before a commissioner appointed by the court, and
be examined on oath respecting the same. The
party whose property is attached may also be
required to attend for the purpose of giving
information respecting his property, and may be
examined on oath. The court may, after such
examination, order personal property capable of
manual delivery belonging to him, in the possession
of the person so required to attend before the court,
to be delivered to the clerk of the court or sheriff on
CADC$MIDTERMS$CRIMPRO$ 17!
such terms as may be just, having reference to any
lien thereon or claim against the same, to await the
judgment in the action. (10a)
Section 11. When attached property may be sold
after levy on attachment and before entry of
judgment. Whenever it shall be made to appear
to the court in which the action is pending, upon
hearing with notice to both parties, that the property
attached is perishable, or that the interests of all the
parties to the action will be subserved by the sale
thereof, the court may order such property to be
sold at public auction in such manner as it may
direct, and the proceeds of such sale to be
deposited in court to abide the judgment in the
action. (11a)
Section 12. Discharge of attachment upon giving
counter-bond. After a writ of attachment has
been enforced, the party whose property has been
attached, or the person appearing on his behalf,
may move for the discharge of the attachment
wholly or in part on the security given. The court
shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a
cash deposit, or files a counter-bond executed to
the attaching party with the clerk of the court where
the application is made, in an amount equal to that
fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought
to be discharged with respect to a particular
property, the counter-bond shall be equal to the
value of that property as determined by the court. In
either case, the cash deposit or the counter-bond
shall secure the payment of any judgment that the
attaching party may recover in the action. A notice
of the deposit shall forthwith be served on the
attaching party. Upon the discharge of an
attachment in accordance with the provisions of this
section, the property attached, or the proceeds of
any sale thereof, shall be delivered to the party
making the deposit or giving the counter-bond, or to
the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the
property so released. Should such counter-bond for
any reason be found to be or become insufficient,
and the party furnishing the same fail to file an
additional counter-bond, the attaching party may
apply for a new order of attachment. (12a)
Section 13. Discharge of attachment on other
grounds. The party whose property has been
ordered attached may file a motion with the court in
which he action is pending, before or after levy or
even after the release of the attached property, for
an order to set aside or discharge the attachment
on the ground that the same was improperly or
irregularly issued or enforced, or that the bond is
insufficient. If the attachment is excessive, the
discharge shall be limited to the excess. If the
motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other
evidence in addition to that on which the
attachment was made. After due notice and
hearing, the court shall order the setting aside or
the corresponding discharge of the attachment if it
appears that it was improperly or irregularly issued
or enforced, or that the bond is insufficient, or that
the attachment is excessive, and the defect is not
cured forthwith. (13a)
Section 14. Proceedings where property claimed
by third person. If the property attached is
claimed by any person other than the party against
whom attachment had been issued or his agent,
and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating
the grounds of such right or title, and serves such
affidavit upon the sheriff while the latter has
possession of the attached property, and a copy
thereof upon the attaching party, the sheriff shall
not be bound to keep the property under
attachment, unless the attaching party or his agent,
on demand of the sheriff, shall file a bond approved
by the court to indemnify the third-party claimant in
a sum not less than the value of the property levied
upon. In case of disagreement as to such value, the
same shall be decided by the court issuing the writ
of attachment. No claim for damages for the taking
or keeping of the property may be enforced against
the bond unless the action therefor is filed within
one hundred twenty (120) days from the date of the
filing of the bond.
The sheriff shall not be liable for damages for the
taking or keeping of such property to any such
third-party claimant, if such bond shall be filed.
Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property, or prevent the attaching party
from claiming damages against a third-party
claimant who filed a frivolous or plainly spurious
claim, in the same or a separate action.
When the writ of attachment is issued in favor of
the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose. (14a)
Section 15. Satisfaction of judgment out of
property attached, return of sheriff. If judgment
be recovered by the attaching party and execution
issue thereon, the sheriff may cause the judgment
to be satisfied out of the property attached, if it be
sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds
of all sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much
of the property, real or personal, as may be
necessary to satisfy the balance, if enough for that
purpose remain in the sheriff's hands, or in those
the clerk of the court;
(c) By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of
the attachment of such credits or debts, the amount
of such credits and debts as determined by the
court in the action, and stated in the judgment, and
paying the proceeds of such collection over to the
judgment obligee.
The sheriff shall forthwith make a return in writing to
the court of his proceedings under this section and
furnish the parties with copies thereof. (15a)
Section 16. Balance due collected upon an
execution; excess delivered to judgment obligor.
If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment any balance shall
remain due, the sheriff must proceed to collect such
balance as upon ordinary execution. Whenever the
judgment shall have been paid, the sheriff, upon
reasonable demand, must return to the judgment
obligor the attached property remaining in his
hands, and any proceeds of the sale of the property
attached not applied to the judgment. (16a)
Section 17. Recovery upon the counter-bond.
When the judgment has become executory, the
surety or sureties on any counter-bond given
pursuant to the provisions of this Rule to secure the
payment of the judgment shall become charged on
such counter-bond and bound to pay the judgment
obligee upon demand the amount due under the
judgment, which amount may be recovered from
such surety or sureties after notice and summary
hearing in the same action. (17a)
Section 18. Disposition of money deposited.
Where the party against whom attachment had
been issued has deposited money instead of giving
counter-bond, it shall be applied under the direction
of the court to the satisfaction of any judgment
rendered in favor of the attaching party, and after
satisfying the judgment the balance shall be

!
refunded to the depositor or his assignee. If the
judgment is in favor of the party against whom
attachment was issued, the whole sum deposited
must be refunded to him or his assignee. (18a)
Section 19. Disposition of attached property where
judgment is for party against whom attachment was
issued. If judgment be rendered against the
attaching party, all the proceeds of sales and
money collected or received by the sheriff, under
the order of attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged. (19a)
Section 20. Claim for damages on account of
improper, irregular or excessive attachment. An
application for damages on account of improper,
irregular or excessive attachment must be filed
before the trial or before appeal is perfected or
before the judgment becomes executory, with due
notice to the attaching party and his surety or
sureties setting forth the facts showing his right to
damages and the amount thereof. Such damages
may be awarded only after proper hearing and shall
be included in the judgment on the main case.
If the judgment of the appellate court be favorable
to the party against whom the attachment was
issued he must claim damages sustained during
the pendency of the appeal by filing an application
in the appellate court, with notice to the party in
whose favor the attachment was issued or his
surety or sureties, before the judgment of the
appellate court becomes executory. The appellate
court may allow the application to be heard and
decided by the trial court.
Nothing herein contained shall prevent the party
against whom the attachment was issued from
recovering in the same action the damages
awarded to him from any property of the attaching
party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to
fully satisfy the award. (20a)
RULE 58
Preliminary Injunction
Section 1. Preliminary injunction defined; classes.
A preliminary injunction is an order granted at
any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court,
agency or a person to refrain from a particular act
or acts. It may also require the performance of a
particular act or acts, in which case it shall be
CADC$MIDTERMS$CRIMPRO$ 19!
known as a preliminary mandatory injunction. (1a)
Section 2. Who may grant preliminary injunction.
A preliminary injunction may be granted by the
court where the action or proceeding is pending. If
the action or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be issued
by said court or any member thereof. (2a)
Section 3. Grounds for issuance of preliminary
injunction. A preliminary injunction may be
granted when it is established:
(a) That the applicant is entitled to the relief
demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of, or in
requiring the performance of an act or acts either
for a limited period or perpetually;
(b) That the commission, continuance or non-
performance of the act or acts complained of during
the litigation would probably work injustice to the
applicant; or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring
or suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to
render the judgment ineffectual. (3a)
Section 4. Verified application and bond for
preliminary injunction or temporary restraining
order. A preliminary injunction or temporary
restraining order may be granted only when:
(a) The application in the action or proceeding is
verified, and shows facts entitling the applicant to
the relief demanded; and
(b) Unless exempted by the court the applicant files
with the court where the action or proceeding is
pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to
the effect that the applicant will pay to such party or
person all damages which he may sustain by
reason of the injunction or temporary restraining
order if the court should finally decide that the
applicant was not entitled thereto. Upon approval of
the requisite bond, a writ of preliminary injunction
shall be issued. (4a)
(c) When an application for a writ of preliminary
injunction or a temporary restraining order is
included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of
the adverse party or the person to be enjoined. In
any event, such notice shall be preceded, or
contemporaneously accompanied, by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.
However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not
apply.
(d) The application for a temporary restraining order
shall thereafter be acted upon only after all parties
are heard in a summary hearing which shall be
conducted within twenty-four (24) hours after the
sheriff's return of service and/or the records are
received by the branch selected by raffle and to
which the records shall be transmitted immediately.
Section 5. Preliminary injunction not granted
without notice; exception. No preliminary
injunction shall be granted without hearing and prior
notice to the party or person sought to be enjoined.
If it shall appear from facts shown by affidavits or
by the verified application that great or irreparable
injury would result to the applicant before the
matter can be heard on notice, the court to which
the application for preliminary injunction was made,
may issue a temporary restraining order to be
effective only for a period of twenty (20) days from
service on the party or person sought to be
enjoined, except as herein provided. Within the said
twenty-day period, the court must order said party
or person to show cause, at a specified time and
place, why the injunction should not be granted,
determine within the same period whether or not
the preliminary injunction shall be granted, and
accordingly issue the corresponding order. (Bar
Matter No. 803, 17 February 1998)
However, and subject to the provisions of the
preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice
and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single
sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72)
hours from issuance but he shall immediately
comply with the provisions of the next preceding
section as to service of summons and the
documents to be served therewith. Thereafter,
within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall
conduct a summary hearing to determine whether
the temporary restraining order shall be extended
until the application for preliminary injunction can
be heard. In no case shall the total period of
effectivity of the temporary restraining order exceed
twenty (20) days, including the original seventy-two
hours provided herein.
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed,
automatically vacated. The effectivity of a
temporary restraining order is not extendible
without need of any judicial declaration to that
effect and no court shall have authority to extend or
renew the same on the same ground for which it
was issued.
However, if issued by the Court of Appeals or a
member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on
the party or person sought to be enjoined. A
restraining, order issued by the Supreme Court or a
member thereof shall be effective until further
orders. (5a)
Section 6. Grounds for objection to, or for motion
of dissolution of, injunction or restraining order.
The application for injunction or restraining order
may be denied, upon a showing of its insufficiency.
The injunction or restraining order may also be
denied, or, if granted, may be dissolved, on other
grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant
also by affidavits. It may further be denied, or if
granted, may be dissolved, if it appears after
hearing that although the applicant is entitled to the
injunction or restraining order, the issuance or
continuance thereof, as the case may be, would
cause irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by
the court conditioned that he will pay all damages
which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If it
appears that the extent of the preliminary injunction
or restraining order granted is too great, it may be
modified. (6a)
Section 7. Service of copies of bonds; effect of
disapproval of same. The party filing a bond in
accordance with the provisions of this Rule shall
forthwith serve a copy of such bond on the other
party, who may except to the sufficiency of the
bond, or of the surety or sureties thereon. If the
applicant's bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to
justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith the injunction shall be dissolved. If
the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount
with sufficient sureties approved after justification is
not filed forthwith, the injunction shall be granted or
restored, as the case may be. (8a)

!
Section 8. Judgment to include damages against
party and sureties. At the trial, the amount of
damages to be awarded to either party, upon the
bond of the adverse party, shall be claimed,
ascertained, and awarded under the same
procedure prescribed in section 20 of Rule 57. (9a)
Section 9. When final injunction granted. If after
the trial of the action it appears that the applicant is
entitled to have the act or acts complained of
permanently enjoined the court shall grant a final
injunction perpetually restraining the party or
person enjoined from the commission or
continuance of the act or acts of confirming the
preliminary mandatory injunction. (10a)
B. CIVIL ASPECT
1. GENERALLY
RULE 111
Section 1. Institution of criminal and civil actions.
(a) When a criminal action is instituted, the civil
action for the recovery of civil liability arising from
the offense charged shall be deemed instituted with
the criminal action unless the offended party waives
the civil action, reserves the right to institute it
separately or institutes the civil action prior to the
criminal action.
The reservation of the right to institute separately
the civil action shall be made before the
prosecution starts presenting its evidence and
under circumstances affording the offended party a
reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil
liability against the accused by way of moral,
nominal, temperate, or exemplary damages without
specifying the amount thereof in the complaint or
information, the filing fees thereof shall constitute a
first lien on the judgment awarding such damages.
Where the amount of damages, other than actual,
is specified in the complaint or information, the
corresponding filing fees shall be paid by the
offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no
filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which could
have been the subject thereof may be litigated in a
separate civil action. (1a)
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file
such civil action separately shall be allowed.
CADC$MIDTERMS$CRIMPRO$ 21!
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing
fees based on the amount of the check involved,
which shall be considered as the actual damages
claimed. Where the complaint or information also
seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended
party shall pay additional filing fees based on the
amounts alleged therein. If the amounts are not so
alleged but any of these damages are subsequently
awarded by the court, the filing fees based on the
amount awarded shall constitute a first lien on the
judgment.
Where the civil action has been filed separately and
trial thereof has not yet commenced, it may be
consolidated with the criminal action upon
application with the court trying the latter case. If
the application is granted, the trial of both actions
shall proceed in accordance with section 2 of this
Rule governing consolidation of the civil and
criminal actions. (cir. 57-97)
RJCL Section 12. Prosecution of Civil Action.
When a criminal action is instituted against a
juvenile in conflict with the law, the action for
recovery of civil liability arising from the offense
charged shall be governed by Rule 111 of the
Revised Rules of Criminal Procedure.
!
2.!SUSPENSION!OF!SEPARATE!CIVIL!ACTION!
Section 2. When separate civil action is
suspended. After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final judgment
has been entered in the criminal action.
If the criminal action is filed after the said civil
action has already been instituted, the latter shall
be suspended in whatever stage it may be found
before judgment on the merits. The suspension
shall last until final judgment is rendered in the
criminal action. Nevertheless, before judgment on
the merits is rendered in the civil action, the same
may, upon motion of the offended party, be
consolidated with the criminal action in the court
trying the criminal action. In case of consolidation,
the evidence already adduced in the civil action
shall be deemed automatically reproduced in the
criminal action without prejudice to the right of the
prosecution to cross-examine the witnesses
presented by the offended party in the criminal
case and of the parties to present additional
evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.
During the pendency of the criminal action, the
running of the period of prescription of the civil
action which cannot be instituted separately or
whose proceeding has been suspended shall be
tolled. (n)
The extinction of the penal action does not carry
with it extinction of the civil action. However, the
civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment
in the criminal action that the act or omission from
which the civil liability may arise did not exist. (2a)
Section 6. Suspension by reason of prejudicial
question. A petition for suspension of the
criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in
the office of the prosecutor or the court conducting
the preliminary investigation. When the criminal
action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at
any time before the prosecution rests. (6a)
Section 7. Elements of prejudicial question. The
elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue
similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the
resolution of such issue determines whether or not
the criminal action may proceed. (5a)
3. INDEPENDENT CIVIL ACTION
RULE 111
Section 3. When civil action may proceeded
independently. In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines, the independent civil action may be
brought by the offended party. It shall proceed
independently of the criminal action and shall
require only a preponderance of evidence. In no
case, however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action. (3a)
4. EFFECT OF DEATH ON CIVIL ACTION
Section 4. Effect of death on civil actions. The
death of the accused after arraignment and during
the pendency of the criminal action shall extinguish
the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of
this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may
be continued against the estate or legal
representative of the accused after proper
substitution or against said estate, as the case may
be. The heirs of the accused may be substituted for
the deceased without requiring the appointment of
an executor or administrator and the court may
appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice.
A final judgment entered in favor of the offended
party shall be enforced in the manner especially
provided in these rules for prosecuting claims
against the estate of the deceased.
If the accused dies before arraignment, the case
shall be dismissed without prejudice to any civil
action the offended party may file against the estate
of the deceased. (n)
6. EFFECT OF JUDGMENT IN CIVIL ACTION
ON CRIMINAL ACTION
RULE 111 Section 5. Judgment in civil action
not a bar. A final judgment rendered in a civil
action absolving the defendant from civil liability
is not a bar to a criminal action against the
defendant for the same act or omission subject
of the civil action. (4a)
RPC
Chapter One
PERSON CIVILLY LIABLE FOR FELONIES
Article 100. Civil liability of a person guilty of
felony. - Every person criminally liable for a felony
is also civilly liable.
Article 101. Rules regarding civil liability in certain
cases. - The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of
Article 12 and in subdivision 4 of Article 11 of this
Code does not include exemption from civil liability,
which shall be enforced subject to the following
rules:
First. In cases of subdivisions 1, 2, and 3 of Article
12, the civil liability for acts committed by an
imbecile or insane person, and by a person under
nine years of age, or by one over nine but under
fifteen years of age, who has acted without
discernment, shall devolve upon those having such
person under their legal authority or control, unless
it appears that there was no fault or negligence on
their part.
Should there be no person having such insane,
imbecile or minor under his authority, legal
guardianship or control, or if such person be
insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property
exempt from execution, in accordance with the civil
law.
Second. In cases falling within subdivision 4 of
Article 11, the persons for whose benefit the harm
has been prevented shall be civilly liable in

!
proportion to the benefit which they may have
received.
The courts shall determine, in sound discretion, the
proportionate amount for which each one shall be
liable.
When the respective shares cannot be equitably
determined, even approximately, or when the
liability also attaches to the Government, or to the
majority of the inhabitants of the town, and, in all
events, whenever the damages have been caused
with the consent of the authorities or their agents,
indemnification shall be made in the manner
prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of
Article 12, the persons using violence or causing
the fears shall be primarily liable and secondarily,
or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part
of their property exempt from execution.
Article 102. Subsidiary civil liability of innkeepers,
tavernkeepers and proprietors of establishments. -
In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other persons
or corporations shall be civilly liable for crimes
committed in their establishments, in all cases
where a violation of municipal ordinances or some
general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the
restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the
payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper
himself, or the person representing him, of the
deposit of such goods within the inn; and shall
furthermore have followed the directions which
such innkeeper or his representative may have
given them with respect to the care and vigilance
over such goods. No liability shall attach in case of
robbery with violence against or intimidation of
persons unless committed by the innkeeper's
employees.
Article 103. Subsidiary civil liability of other
persons. - The subsidiary liability established in the
next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in
any kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
Chapter Two WHAT CIVIL LIABILITY INCLUDES
Article 104. What is included in civil liability. - The
civil liability established in Articles 100, 101, 102,
and 103 of this Code includes:
CADC$MIDTERMS$CRIMPRO$ 23!
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
Article 105. Restitution; How made. - The
restitution of the thing itself must be made
whenever possible, with allowance for any
deterioration, or diminution of value as determined
by the court.
The thing itself shall be restored, even though it be
found in the possession of a third person who has
acquired it by lawful means, saving to the latter his
action against the proper person, who may be liable
to him.
This provision is not applicable in cases in which
the thing has been acquired by the third person in
the manner and under the requirements which, by
law, bar an action for its recovery.
Article 106. Reparation; How made. - The court
shall determine the amount of damage, taking into
consideration the price of the thing, whenever
possible, and its special sentimental value to the
injured party, and reparation shall be made
accordingly.
Article 107. Indemnification; What is included. -
Indemnification for consequential damages shall
include not only those caused the injured party, but
also those suffered by his family or by a third
person by reason of the crime.
Article 108. Obligation to make restoration,
reparation for damages, or indemnification for
consequential damages and actions to demand the
same; Upon whom it devolves. - The obligation to
make restoration or reparation for damages and
indemnification for consequential damages
devolves upon the heirs of the person liable.
The action to demand restoration, reparation, and
indemnification likewise descends to the heirs of
the person injured.
Article 109. Share of each person civilly liable. - If
there are two or more persons civilly liable for a
felony, the courts shall determine the amount for
which each must respond.
Article 110. Several and subsidiary liability of
principals, accomplices and accessories of a
felony; Preference in payment. - Notwithstanding
the provisions of the next preceding article, the
principals, accomplices, and accessories, each
within their respective class, shall be liable
severally (in solidum) among themselves for their
quotas, and subsidiaries for those of the other
persons liable.
The subsidiary liability shall be enforced, first
against the property of the principals; next, against
that of the accomplices, and, lastly, against that of
the accessories.
Whenever the liability in solidum or the subsidiary
liability has been enforced, the person by whom
payment has been made shall have a right of action
against the others for the amount of their respective
shares.
Article 111. Obligation to make restitution in certain
cases. - Any person who has participated
gratuitously in the proceeds of a felony shall be
bound to make restitution in an amount equivalent
to the extent of such participation.
Chapter Three EXTINCTION AND SURVIVAL OF
CIVIL LIABILITY
Article 112. Extinction of civil liability. - Civil liability
established in Articles 100, 101, 102, and 103 of
this Code shall be extinguished in the same
manner as obligations, in accordance with the
provisions of the Civil Law.
Article 113. Obligation to satisfy civil liability. -
Except in case of extinction of his civil liability as
provided in the next preceding article the offender
shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by him,
notwithstanding the fact that he has served his
sentence consisting of deprivation of liberty or other
rights, or has not been required to serve the same
by reason of amnesty, pardon, commutation of
sentence or any other reason.
! (17) Freedom from being compelled to be a witness
CIVIL!CODE!
!Article 29. When the accused in a criminal
prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a
civil action for damages for the same act or
omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of
the defendant, the court may require the plaintiff to
file a bond to answer for damages in case the
complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is
based upon reasonable doubt, the court shall so
declare. In the absence of any declaration to that
effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that
ground.
Article 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and
liberties of another person shall be liable to the
latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without
due process of law;
(7) The right to a just compensation when private
property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house,
papers, and effects against unreasonable searches
and seizures;
(10) The liberty of abode and of changing the
same;
(11) The privacy of communication and
correspondence;
(12) The right to become a member of associations
or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly
to petition the Government for redress of
grievances;
(14) The right to be a free from involuntary
servitude in any form;
(15) The right of the accused against excessive
bail;
(16) The right of the accused to be heard by himself
and counsel, to be informed of the nature and
cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face
to face, and to have compulsory process to secure
the attendance of witness in his behalf;
against one's self, or from being forced to confess
guilt, or from being induced by a promise of
immunity or reward to make such confession,
except when the person confessing becomes a
State witness;
(18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed
or inflicted in accordance with a statute which has
not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article,
whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party
has a right to commence an entirely separate and
distinct civil action for damages, and for other relief.
Such civil action shall proceed independently of any
criminal prosecution (if the latter be instituted), and
may be proved by a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not
demandable from a judge unless his act or
omission constitutes a violation of the Penal Code
or other penal statute.
Article 33. In cases of defamation, fraud, and
physical injuries a civil action for damages, entirely
 CADC$MIDTERMS$CRIMPRO$ 25!
!
separate and distinct from the criminal action, may
be brought by the injured party. Such civil action
shall proceed independently of the criminal
prosecution, and shall require only a
preponderance of evidence.
Article 34. When a member of a city or municipal
police force refuses or fails to render aid or
protection to any person in case of danger to life or
property, such peace officer shall be primarily liable
for damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action
herein recognized shall be independent of any
criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Article 2176. Whoever by act or omission causes
damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
(1902a)!