Inigo Crimpro Notes

Iñigo Notes in Criminal Procedure |1
BACKGROUND ON CRIMINAL emphasis on the government’s role. The

PROCEDURE accusatorial system on the other hand, holds a
different view… baliktad! The role or participation
of the State is secondary. We give more
We will now go to Criminal Procedure proper. importance on the right or role of the accused or
the private victim.
Q: Define Criminal Procedure.
A: It is the method prescribed by law for the Q: Which of the 2 systems is recognized in
apprehension and prosecution of persons the Philippines?
accused of any criminal offense and for their A: Ours is a mixed system… so,
punishment in case of conviction. (Clark’s Hybrid/Mestizo [murag is Jet!] because the
Criminal Procedure, p.1) features of both system are found in our law.
HISTORY OF CRIMINAL PROCEDURE IN THE Q: What are some of the inquisitorial aspects
PHILIPPINES of our system of criminal procedure where the
emphasis is on the government’s role?
Remember our criminal procedure is A: The following:
patterned after the U.S. law. So let’s trace its
origin: 1. The prosecution of criminal cases is
largely controlled by the public
The first law on criminal procedure is General prosecutor. ‘Yong fiscal, siya man
Order No. 58 promulgated on April 23, 1900 by ang may say bah…so, under the
Major General Otis of the U.S. Armed Forces. direction or control of the fiscal or
That went on up to 1940 The Old Rules of Court. prosecutor;
After that is the 1964 Revised Rules of Court. 2. Preliminary investigation is required.
Next is the 1985 Rules of Criminal Procedure You cannot go to court and file it.
which was amended 3 years later, and again The fiscal will determine whether
amended on 1991 (on Rule 114). to file it or not. Now can he
conduct a preliminary investigation
And finally the most thorough amendment kung wala ang accused? Well, if
which took effect last December 1, 2000 – the you are notified, ayaw mong
2000 Rules on Criminal Procedure. So that is now magbigay ng counter-affidavit,
the present law. I hope you have the copy. Do then tuloy! Bahala ka dyan! Basta
they have already commercial? Wala pa? Ok. Ah! ang importante ang role ng
That is the one prepared by the faculty during the government;
seminar where I talked (ehem!). Since you are 3. In case the accused is sentenced to
using it, meron man akong ibang kopya ba! death, whether the accused likes it
Malaki…ganyan o…direct from the Supreme or not, there will be a review of
Court [idol jud nako si Dean!!!] and I have it book- death sentence because that is
bound. what public interest says.
SYSTEMS OF PHILIPPINE CRIMINAL Q: What are some of the accusatorial aspects

PROCEDURE of our system of criminal procedure where the
emphasis is on the role of the accused or the
There are generally two (2) systems of offended party?
criminal procedure: A: The following:
1. Inquisitorial System; and
2. Accusatorial System. 1. The accused is entitled to a public
trial. That is not for the benefit of
Remember in a criminal case there are three the government but that of the
(3) parties: accused;
1. state, through prosecutor; 2. It is the right of the accused to be
2. accused; and present at every stage of the
3. private victim. proceeding;
3. It is the right of the offended party to
Under the inquisitorial system, it is a intervene by hiring a private
government show and the accused and the prosecutor.
private victim is only incidental. So there is more
The area of authority of said court is found in

Section 2 of the Interim Rules:
LAW ON JURISDICTION IN CRIMINAL CASES Section 2. Territorial

Jurisdiction of Courts –
Metropolitan Trial Courts,
Before we take up the rules on criminal Municipal Trial Courts, and
procedure, we have to review the law on Municipal Circuit Trail Courts
jurisdiction. Just like in civil cases, we have to shall exercise their jurisdiction
know the jurisdiction of the different courts before in the city, municipality or
we take up the provisions. circuit for which the judge
thereof is appointed or
Q: How do we define jurisdiction with designated. Thus, a judge
reference to criminal cases? appointed to the municipality or
A: Jurisdiction in criminal cases has been circuitized municipalities would
defined as the power and authority of a court to have jurisdiction over the said
take cognizance of an offense and to pronounce place.
the judgement or sentence provided by law after (a) Regional Trial Courts
a trial in the manner prescribed. (Albert, Law on shall exercise its jurisdiction
Criminal Procedure, p. 56) within the area defined by the
Supreme Court as the territory
Q: What are the elements of jurisdiction in over which the particular
criminal cases: branch concerned shall exercise
A: The following: its authority, in accordance with
1. Territorial jurisdiction; Section 18 of B.P. Blg. 129.
2. Jurisdiction over the subject matter;
and There is no problem with the MTCs and
3. Jurisdiction over the person of the MCTCs where the crime is committed there. Pero
accused. yung RTC, it is not really the province because
the province can be split into several areas -
First Element: TERRITORIAL JURISDICTION itong RTC branch na ito, dito ka. So it is the limit
of its authority as defined by the SC pursuant to
In civil cases, the place is never considered the Judiciary Law – the place or municipality
part of jurisdiction. It is only a question of venue – where the particular RTC branch exercises
that the case should be tried in Manila or Davao jurisdiction. Every RTC branch has its own area
is never considered as jurisdictional. But in of responsibility.
criminal procedure, the place where the trial is to
be heard is not only a question of venue but also Meaning, in one province there are many RTC
a question of jurisdiction. It is called territorial branches which are scattered. A branch in a
jurisdiction. particular place will only exercise jurisdiction over
its designated territory, a small portion, not the
Q: Define Territorial Jurisdiction. whole province. The territory is defined by the SC.
A: Territorial jurisdiction refers to the limits of (Section 18, B.P. Blg. 129)
the geographical boundaries of a place within Second Element: JURISDICTION OVER
which a court has jurisdiction to act judicially and THE SUBJECT MATTER
outside of which its judicial acts are null and void.
(Mendoza vs. B.T. Co., 90 Phil. 804) Q: How is jurisdiction over the subject matter
in criminal cases determined?
Q: How is territorial jurisdiction in criminal A: It is determined by the allegations of the
cases determined? complaint or information in accordance with the
A: The territorial jurisdiction of a court in law in force at the time of the institution of the
criminal cases is determined by the geographical action, not at the time of the commission of the
area over which it presides, and the fact that the offense. (U.S. vs. Mallari, 24 Phil. 366; People vs.
crime was committed, or any of its essential Pegarum, 58 Phil. 715)
ingredients took place, within said area is an
element of jurisdiction. (U.S. vs. Jueves, 23 Phil. EXAMPLE: At the time the crime is
100) committed, it was triable by the RTC, but when
the charge was filed in court, it is MTC na
because the jurisdiction of the MTC was 2. Other offenses which, although not so
increased. punished, arose out of the same
occurrence or which may have been
Q: Saan ang sundin natin? RTC, which is the committed by the accused on the same
law at the time the crime is committed? Or MTC, occasion as that giving rise to the more
which is the law at the time the case was filed? serious offense, regardless of whether the
A: Dun sa MTC. You follow the latter. This is accused are charged as principals,
not a question of prejudice, this is purely accomplices, or accessories, or whether
procedural. We are not talking here of a they have been tried jointly or separately.
retroactive effect of penal law where the law is
more favorable to the accused ‘no? This is just a EXAMPLE: Hannah is the principal,
question of jurisdiction, not a question of law. So, accused of murder. Maying is the
it is the law in force at the time of the filing of the accomplice and JJ is the accessory. All of
action is what determines the jurisdiction of the them are found guilty. For the principal,
court. sigurado perpetua ang pinakamababa
nyan – so SC ka!
Q: To be more precise, how do we know How about the accomplice? Reclusion
where the court has or no jurisdiction? Temporal man lang yan ba! And the
A: Essentially, it is determined by the penalty accessory? Prision Mayor. In order not to
provided by the law for the offense as that offense split the jurisdiction, all of them will be
is charged in the complaint or information. appealed to the SC.
(People vs. Pecson, 92 Phil. 172; Punzalan vs.
People, 99 Phil. 295) 3. Even if the penalty is less than reclusion
perpetua, death or life imprisonment,
Third Element: JURISDICTION OVER THE where the issue on appeal is pure
PERSON OF THE ACCUSED question of law.
Q: How does the court acquire jurisdiction EXAMPLE: Suppose the crime is
over the person of the accused? homicide. The penalty imposed is
A: It is conferred upon the court either by the reclusion temporal – 20 years or less –
voluntary appearance or surrender of the definitely sa Court of Appeals yan.
accused, or by his arrest to answer for the crime However, if the issue on appeal is purely
charged. (Choc vs. Vera, 64 Phil. 1066) legal question lang - 100% legal, no
factual issue – SC yan. The mode of
JURISDICTION OF PHILIPPINE COURTS appeal is Rule 45 – Appeal by Cetiorari.
Let us now go over the jurisdiction of the COURT OF APPEALS (CA)

different courts in the Philippines. We will start
with the Supreme Court, and then down. Let’s go to the CA. Simple: If a case does not
Remember that there are two (2) special courts fall within the jurisdiction of the SC, then
also authorized to try criminal cases: (1) the necessarily it falls within the CA’s jurisdiction.
Family Courts acting through RTCs, and (2) the That is, the penalty imposed is less than perpetua
Sandiganbayan. and the appeal is not purely a question of law; the
appeal either involves question of fact or mixed
SUPREME COURT (SC) question of law and fact.
Q: What criminal cases are within the REGIONAL TRIAL COURT (RTC)
jurisdiction of the SC? Well, one of them are
cases affecting ambassadors, public ministers Sec. 20. Jurisdiction in criminal
and consuls. It is very rare. But let us concentrate cases. - Regional Trial Courts
on the exclusive appellate jurisdiction of the SC in shall exercise exclusive original
criminal cases. jurisdiction in all criminal cases
A: The following: not within the exclusive
jurisdiction of any court,
1. All criminal cases involving offenses for tribunal or body, except those
which the penalty imposed by the trial now falling under the exclusive
court is death, reclusion perpetua or life and concurrent jurisdiction of
imprisonment; the Sandiganbayan which shall
hereafter be exclusively taken property through criminal

cognizance of by the latter. (BP negligence, they shall have
129) exclusive original jurisdiction
thereof. (as amended by R.A.
The jurisdiction of the RTC in criminal cases is 7691)
provided for in Section 20, BP 129 which is very
broad in general – provided it does not belong to There are only two (2) things to remember:
the Sandiganbayan or the Municipal Trial Court
(MTC). So what does not belong to the 1. all violations of city or municipal
Sandiganbayan or the MTC belongs to the RTC. ordinances committed within their
Therefore, the best guide is determine the respective territorial jurisdiction
jurisdiction of the MTC. Let us forget the
Sandiganbayan for the meanwhile. If it does not 2. all offenses punishable with imprisonment
belong to the MTC, it should be to the RTC. of not exceeding six (6) years irrespective
of the amount of fine
MUNICIPAL TRIAL COURT (MTC) When the prescribed penalty is below six (6)
years or kung prision correctional and down, puro
Q: What law governing the jurisdiction of the MTC lahat yan. Everything above six (6) years,
MTC? RTC ang jurisdiction.
A: Section 32, BP 129, as amended by RA
7691. RA 7691 is the law expanding the Q: Suppose if the penalty prescribed is
jurisdiction of the MTC which took effect last April imprisonment, fine or both?
05, 1994. A: Never mind the fine and the both. Just look
at the imprisonment. That is the innovation by the
Sec. 32. Jurisdiction of new rules. The fine is never considered in
Metropolitan Trial Courts, determining the jurisdiction. All you have to do is
Municipal Trial Courts and look at the imprisonment, i.e. above six (6) years
Municipal Circuit Trial courts in – RTC; six (6) years and below – MTC.
criminal cases. - Except in cases
falling within the exclusive RTC JURISDICTION: Above six (6) years,
original jurisdiction of Regional regardless fine
Trial Courts and of the MTC JURISDICTION: Six (6) years and
Sandiganbayan, the below, regardless of fine
Metropolitan Trial Courts,
Municipal Trial Courts, and Q: Suppose the penalty prescribed by law is
Municipal Circuit Trial Courts 100% fine? There are crimes na walang
shall exercise: imprisonment eh where the prescribed penalty is
1. Exclusive original only fine. What will happen?
jurisdiction over all violations of A: Under the SC Circular 04-94, if the penalty
city or municipal ordinances is imprisonment and fine, or imprisonment or
committed within their fine, never mind the fine and concentrate on the
respective territorial imprisonment. But if the penalty prescribed is
jurisdiction; and purely fine, apply the old law before RA 7691: it
2. Exclusive original depends on the amount prescribed by law. Under
jurisdiction over all offenses the old law, if the maximum fine is P4,000 or less
punishable with imprisonment – MTC yan. If the penalty prescribed by law is
of not exceeding six (6) years purely fine and above P4,000 – RTC yan.
irrespective of the amount of
fine, and regardless of other Where the prescribed by law is purely fine:
imposable accessory or other
penalties, including the civil MTC – P4,000 or less
liability arising from such RTC – above P4,000
offenses or predicated thereon,
irrespective of kind, nature, However, the exception to the exception is
value or amount thereof; when the crime is damage to property, like
Provided, however, That in reckless imprudence, because in the crime of
offense involving damage to damage to property through criminal negligence
the penalty is only fine, wala yang imprisonment judgment for support and the acknowledgment of
under the RPC and the fine is equal to the the child which can only be decreed by the CFI.
damage or not more than three (3) times the So what determines the jurisdiction of the court is
amount of the damage. not the criminal penalty by the civil liability.
EXAMPLE: You bumped a car and you wreck Pero bahaw na yan!! Those pronouncements
it. The car is worth P100,000. Ano ang penalty? are already obsolete. Now, never mind the civil
The minimum fine is P100,000 – equal to the liability. So, in simple seduction [below 6 months],
value of the damage – and the maximum is the MTC can order for the support and
P300,000 (three times the value of the damage, acknowledgment of the child because that is only
Article 365, RPC). So the fine could range from incidental. What is important is six (6) months
P100,000 to P300,000. lang ang penalty.
Q: Sa RTC na ba yan because it is above
P4,000? CASE: Suppose Sir Jet is convicted of less
A: No! Basta damage to property through serious physical injuries for the 6th time within a
reckless imprudence, automatically it is the MTC period of 10 years only. The penalty for such
regardless of the amount of fine. The P4,000 is crime is only arresto mayor – six (6) months
only for crimes other than damage to property maximum. But since Sir Jet is already a habitual
through reckless imprudence. delinquent, may patong na yan where the penalty
can reach as high as 6 months to 14 years and 8
Outline of the jurisdiction of the MTC and RTC months.
over criminal cases: Q: Where are you going to file the case?
A: That is what happened in the case of
RTC: People vs. Custoso where the SC held that the
1. when the prescribed penalty for the case should be file din the RTC because you
offense is imprisonment exceeding six consider the principal plus the additional penalty.
(6) years irrespective of the amount of But this doctrine is already obsolete. Under the
the imposable fine; present law RA 7691, we do not consider the
2. when the prescribed penalty for the additional penalty, only the principal penalty.
offense is fine only and the Since less serious physical injuries is punishable
imposable fine exceeds P4,000. by arresto mayor only, it should be filed in the
MTC: MTC.
1. all violations of city or municipal
ordinances committed within their Take note the opening clause of Section 32:
respective territorial jurisdiction; Except in cases falling within the exclusive
2. all offenses punishable with original jurisdiction of Regional Trial Courts and of
imprisonment of not exceeding six (6) the Sandiganbayan. In other words, if the crime
years irrespective of the amount of the has a penalty of six (6) years or lower, dapat
imposable fine; talaga MTC. It cannot be tried by the MTC if the
3. when the prescribed penalty is fine law says it is falling within the exclusive original
only and the imposable amount does jurisdiction of the RTC or the Sandiganbayan [if
not exceed P4,000; the law itself ba!].
4. when the offense involves damage to
property through criminal negligence If the law says this case shall be tried with the
irrespective of the amount of the RTC, sundin mo yan and never mind the penalty
imposable fine. because the law specifically provides in what
court you should file it. Even if the penalty is one
Take note, jurisdiction is determined by the (1) month imprisonment, pag-sinabi ng law
principal penalty not by the civil liability, additional “RTC”, you follow it.
penalty or the subsidiary penalty, which changed
the previous rules under the old jurisprudence. Q: Give instances of this exception. In what
Under the old jurisprudence in the old case of cases will the RTC will try the case even if the
U.S. vs. Bernardo, the SC ruled that the penalty penalty is only six (6) years or less?
for simple seduction is only arresto mayor [not A: There are four (4) instances as laid down
more than 6 months]. It cannot be tried by the old by the SC in cases of MORALES VS. CA, 283
MTC. It should only be tried by the CFI (now, SCRA 211 (1997) and COMELEC vs. NHOYNAY
RTC) because under Article 345 of the RPC, in , 292 SCRA 254 (1998):
the event that the accused is convicted there be a
1. Libel – Klaro sa Article 360, RPC na RTC, SANDIGANBAYAN

pero if you look at the penalty for libel,
hindi man makaabot ng six (6) years ba! The most confusing is the jurisdiction of the
Article 360 prevails. Sandiganbayan. Everyone is always confused
with this Sandiganbayan. It is the most
2. The Decree on Intellectual Property. controversial.
Criminal cases for the violation of the
Decree on Intellectual Property – mga How do you know that the case is to be tried
trademarks yan. by the Sandiganbayan or by the regular courts? It
does not mean naman that all crimes committed
3. The Dangerous Drugs Act. Basta by a public officer must be with the
Dangerous Drugs, automatic RTC yan Sandiganbayan. It could be with the
even if the penalty is prision correcional Sandiganbayan or it could be with the RTC or
lang. MTC. If you know the jurisdiction of the RTC or
MTC, there is no problem. Above six (6) years –
4. Violation of the Omnibus Election Code – RTC; below six (6) years – MTC.
Criminal cases arising from the violations
of the Omnibus Election Code is with the But the problem is whether it is with the
RTC even if the penalty is below six (6) Sandiganbayan or the regular courts, because for
years and one (1) day (Comelec vs. the Sandiganbayan, doon, regardless of the
Nhoynay) penalty na naman. Even if the penalty is above
six (6) years or six (6) years and below, if it is
triable before the Sandiganbayan, you go there.
FAMILY COURTS Forget the penalty. That is where there is some
confusion. Maraming naguguluhan!
Q: What criminal cases are falling within the
original jurisdiction of the Family Courts under RA Q: What is the guideline in determining the
8369 – An Act Establishing Family Courts? jurisdiction of the Sandiganbayan?
A: The following under Section 5, RA 8369: A: The latest governing law is RA 8249
approved on February 05, 1997. This is what it
1. Criminal cases where one or more of the requires:
accused is below 18 years of age but not
less than nine (9) years of age, or one or 1. What kind of position in t he
more of the victims is a minor at the time government does he hold or occupy?
of the commission of the offense. 2. What criminal cases was committed by
him?
So for example: 10 years old na
bata, sinuntok mo – slight physical WHAT KIND OF POSITION IN THE
injuries – sa Family Courts yan. Hindi GOVERNMENT DOES HE HOLD OR OCCUPY?
yan pwede sa MTC because
regardless of the penalty basta below Sino ba itong taong ito? – if he is a governor,
18 years old siya, Family Courts yan vice-governor, member of the sanggunian,
whether he is the accused or the provincial treasure, assessor, engineers and
offended party. other provincial department head, city mayor, vice
mayor, members of the sanggunian panglungsod,
2. Criminal cases against minors under the city treasurer, assessor, engineer, other city
Dangerous Drugs Act; and department heads, official of the diplomatic
3. Violations of RA 7610 – the famous child service occupying the position of consul and
Abuse Law – as amended by RA 7658. higher, Philippine army and air force, colonels
and naval captains and all officers of higher rank,
But since the Family Courts have not yet been officers of the PNP while occupying the position
constituted, the temporary measure is some RTC of provincial directors and those holding the rank
branches were designated as acting as Family of Senior Superintendent or higher, city and
Courts. Here in Davao, the salas of Judge Breva provincial prosecutors and their assistant, and
and Judge Archangel are designated as Family officials and prosecutors of the Office of the
Courts. Temporary set-up lang yan. They are still Ombudsman and special prosecutor, presidents,
RTC but acting as Family Courts. directors or trustees or managers of GOCCs,
state universities or educational institutions or
foundations; members of Congress; members of ISSUE: Was the crime of murder

the Constitutional Commission without prejudice committed in relation to his office?
to the provisions of the Constitution; [ito ang
pinakamaganda:] all other national and local HELD: Yes. In other words, if they
officials classified as Grade 27 and higher. were not public officers they would not
have succeeded in committing the
Those specified positions or even if you are crime. “Although public office is not an
just an ordinary employee but you are Grade 27 element of the crime of murder in
or higher coupled with Anti-Graft crime or crime abstract, as committed by the main
committed in relation to your office – respondents herein, according to the
Sandiganbayan yan, forget the penalty. amended information, the offense
therein charged is intimately
If he is below Grade 27 and the crime is anti- connected with their respective offices
graft or a crime committed in relation to his office, and was perpetrated while they were
then it is not Sandiganbayan. It is either RTC or in the performance, though improper
MTC. Tingnan mo lang ang Grade. That is the or irregular, of their official functions.
cue. Madali man lang ba: you just correlate the Indeed, they had no personal motive
nature of the crime and the nature of the position. to commit the crime and they would
not have committed it had they not
held their aforesaid offices. The co-
WHAT CRIMINAL CASE WAS COMMITTED defendants of respondent Leroy S.
BY HIM? Brown, obeyed his instructions
because he was their superior officer,
When it comes to criminal cases, dalawa (2) as Mayor of Basilan City.”
lang yan eh: Anti-Graft cases or violation of RA
1379 [Forfeiture of an illegally acquired property].
But more or less Anti-Graft would be a better Of course, normally when you say in relation
example since anyway majority of the cases falls to his office… mga falsification or malversaton…
there. yan, talagang klaro. That is the normal meaning.
That is why in the 1995 case of CUNANAN VS.
Q: How about those in the RPC? ARCEO, 242 SCRA, the SC held that an offense
A: Find out whether the crime was committed may be considered as committed in relation to the
by the public officer in relation to his office. Yan accused's office if the offense cannot exist without
muna ang babantayan mo. the office such that the office is a constituent
element of the crime. Let us try to compare this in
If it is outside of those two [anti-graft or not the case of
anti-graft but the crime is committed in relation to
his office], wala na, forget the Sandiganbayan. SANCHEZ vs. DEMETRIOU
207 SCRA 627
What do you mean by “crime committed in
relation to the office of the person accused”? In FACTS: Mayor Sanchez of
the case of Calauan was charged with rape and
homicide for the deaths of Aileen
Sarmenta and Allan Gomez. They
PEOPLE vs. MONTEJO were charged before the RTC.
108 Phil. 652 Sanchez questioned the jurisdiction of
the RTC that since he is an incumbent
FACTS: This is a case for murder mayor at the time of the alleged
filed against the former Mayor Leroy commission of the crime, his case
Brown of Basilan City together with should be tried before the
some Basilan policeman. Brown Sandiganbayan.
ordered his men to arrest the suspect
and he was interrogated. It is in the ISSUE: Whether or not the RTC
course of the investigation or has jurisdiction over the case.
interrogation that they committed the
crime of murder. HELD: Yes. The case should be
tried by the RTC and not
Sandiganbayan. The case of Sanchez
was not considered in relation to their tried by the Sandiganbayan but by the
office. regular courts.
“There is no direct relation “While the information states that
between the commission of the crime the above-name principal accused
of rape with homicide and Sanchez’ committed the crime of murder ‘in
office as municipal mayor because relation to their public office’ there is,
public office is not an essential however, no specific allegation of facts
element of the crime charged. The that the shooting of the victim by the
offense can stand independently of the said principal accused was intimately
office. Moreover, it is not even alleged related to the discharge of their official
in the information that the commission duties as police officers. Likewise, the
of the crime charged was intimately amended information does not indicate
connected with the performance of that the accused arrested and
Sanchez’ official functions to make it investigated the innocent victim and
fall under the exception laid down in killed the latter while in their custody.”
People vs. Montejo.” Dapat: nahuli…nag-imbestiga…tapos,
“In that case of People vs. pinatay – yun, ma-consider pa! Pero
Montejo, a city mayor and several pag-sinabi mo na they killed him in
detectives were charged with murder relation to their office, without further
for the death of a suspect as a result explanation – wala! It becomes merely
of a ‘third degree’ investigation held at a conclusion lang ba.
a police substation. The Supreme “The mere allegation in the
Court held that even if their position information that the offense was
was not an essential ingredient of the committed by the accused public
offense, there was nevertheless an officer in relation to his office is not
intimate connection between the office sufficient – the phrase is merely a
and the offense, as alleged in the conclusion of law, not a factual
information, that brought it within the averment that would show the close
definition of an offense ‘committed in intimacy between the offense charged
relation to the public office.’ Indeed, and the discharge of the accused’s
they had no personal motive to commit official duties.”
the crime and they would not have “In the case of People vs. Montejo,
committed it had they not held their it is noteworthy that the phrase
aforesaid offices. ‘committed in connection to his public
“We have read the informations in office’ does not also appear in the
the case at bar and find no allegation information, which only signifies that
therein that the crime of rape with the said phrase is not what determine
homicide imputed to Sanchez was the jurisdiction of Sandiganbayan.
connected with the discharge of his What is controlling is the specific
functions as municipal mayor or that factual allegations in the information
there is an ‘intimate connection’ that would indicate the close intimacy
between the offense and his office. It between the discharge of the
follows that the said crime, being an accused’s official duties and the
ordinary offense, is triable by the commission of the offense charged, in
regular courts and not the order to qualify the crime as having
Sandiganbayan.” been committed in relation to his
public office.”
LACSON vs. EXECUTIVE

SECRETARY Q: The offender is a public officer and in
301 SCRA 298 (1999) committing the crime, he took advantage of his
position. Ano yan? Is that a sufficient allegation
HELD: It is not enough to say that that the crime is committed in relation to the
the crime committed is in relation to office?
his office. You must make specific A: NO! It does not carry the same meaning.
allegations to show really the When you say that the public officer took
connection. Otherwise, it will not be advantage of his position, that is only an
allegation of an aggravating circumstance under
Article 14, RPC. (People vs. Magallanes, 249 which is: crimes under the election
SCRA 212) code. Whereas the provisions of the
Sandiganbayan is broader: crimes
Now, there are instances where there could committed by public officers in relation
also be a conflict between the Sandiganbayan to their duty. That applies to public
jurisdiction and that of the regular courts. This is officers in general. So the specific
were we follow the general rules on statutory provision prevails over the general
construction that special law prevails over a provision.
general law; a specific provision prevails over a
general provision. Another interesting point about the
Sandiganbayan is that the Sandiganbayan law
Such principle is applied in the case of De says that where a private individual commits a
Jesus vs. People (1983), reiterated in the case of crime in conspiracy with a public officer, all of
Corpuz vs. Tanodbayan (1987). These cases them should be tried in the Sandiganbayan. So
were decided under the 1973 Constitution. But ‘yung isa, nasabit no? Nasabit yung private
actually, the doctrine still applies now. individual. He is not even in the government bakit
pati siya i-try sa Sandiganbayan? Because may
CORPUZ vs. TANODBAYAN conspiracy. There should be a joint trial.
April 15, 1987
So you cannot say that the public officer
NOTE: This Corpuz case was should be tried in the Sandiganbayan and the
asked in the Bar, not in remedial law private individual should be tried in the RTC. Di
but in political law because it has pwede yan. You cannot split the jurisdiction.
something to do with the COMELEC.
FACTS: The accused here is a Q: What is the reason why the private
Comelec registrar who allowed the individual should be tried together with the public
registration of voters outside of the officers in the Sandiganbayan?
registration day… bawal man yan ba. A: The SC explained in the following manner:
So there was a violation of the Election “Private persons may be charged together with
Code. He committed a crime in public officers to avoid repeated and unnecessary
relation to his office. For that, he was presentation of witnesses and exhibits against
charged before the Sandiganbayan conspirators in different venues, especially if the
under the 1973 Constitution. Now, he issues involved are the same.” (Balmadrid vs.
challenged the jurisdiction of the Sandiganbayan, March 22, 1991)
Sandiganbayan to try the case and
also the jurisdiction of the former Let’s go to some interesting cases on the
Tanodbayan which is now the jurisdiction of the Sandiganbayan over private
Ombudsman. individuals:
Under the Election Code,
violations of election code committed
by public officers in relation to their BONDOC vs. SANDIGANBAYAN
office are supposed to be tried by the November 9, 1990
RTC. It is a direct provision in the code
– RTC eh! And the preliminary FACTS: This case involves
investigation should be conducted by quieting(?) operations (manuevers sa
the Comelec under the election code. mga tseke) between Central Bank (a
And of course the prosecution government institution, now Bangko
said: “No! Under the law, when the Sentral ng Pilipinas) employees
crime is committed by a public officer allegedly in connivance with Carlito
in relation to his office, it should be the Bondoc, an assistant manager of a
Sandiganbayan, not the regular private bank. Now, two (2) CB
courts.” Pero sabi ng accused: “Under employees were charged with several
the election code, it should be the counts of estafa through falsification of
RTC!” Ngayon, sino ngayon mag- public documents because of their
prevail dyan? manipulations of the checks. I think
what they did maybe something similar
HELD: The election code prevails to what Estrada did no? Of course
because there is a specific provision they were charged with the
I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 10
Sandiganbayan and the cases were advantage in joint trial? Or when tried alone? Or
assigned in the Second Division of the you are tried together with another person? Does
Sandiganbayan. joint trial make your job easier or harder? Makes
Subsequently after further conviction easier? Wala man bah! Pareho man
investigation, another information was lang yan!
filed against Bondoc as principal by
indispensable cooperation and he was So meaning, you cannot insist on a joint trial if
also in conspiracy, so f-in-ile sa that is no longer feasible. But as far as the law is
Sandiganbayan. His case was raffled concerned, since you committed the crime in
to the Third Division. When the Third conspiracy with these public officers, you remain
Division learned that this is related to in the Sandiganbayan. So in that case (Bondoc),
the case against the two (2) CB mag-isa lang siya and his trial continued in the
employees in the Second Division, Sandiganbayan.
pinasa sa 2nd Division for
consolidation. However, tapos na pala
ang trial dun (2nd Division). So the AZARCON vs. SANDIGANBAYAN
2nd Division returned the case of 268 SCRA 747 (February 26, 1997)
Bondoc to the 3rd Division.
So naiwan na si Bondoc. Now he FACTS: I think this case happened
questions the jurisdiction of the in Bislig. Azarcon here leased a truck
Sandiganbyan: How could the of somebody for logging operations.
Sandiganbayan try me alone when in The owner of the truck was a
fact I should be tried jointly with the 2 delinquent taxpayer pala. So the
CB employees. Eh tapos na sila! So Bureau of Internal Revenue (BIR)
my case should be tried in the RTC. issued this warrant of distraint. The
BIR looked for the truck which is quite
HELD: “The law requires that the an item which worthwhile: “This truck
private individuals accused before the is hereby considered as under the
Sandiganbayan should be tried possession of the BIR. Now since you
together jointly with the public officer. (Azarcon) are the one leasing, okey
That is really true unless the attendant lang, ituloy mo but you are now the
circumstances have made impossible custodian. You are now holding it in
or impracticable such a joint trial, in behalf of the BIR.”
which event the trial of said private After the lease, he returned the
persons may proceed separately from truck to the lessor (taxpayer).
the public officers or employees whose Obviously, nawala nga ang truck. So
own trials have been concluded.” hinabol na si Azarcon ng BIR: “Ba’t mo
“Besides, there is nothing so sinauli? That is under distraint already
sacred or important about a joint trial and that is malversation!” Under the
as to justify a radical deviation from RPC, the crime of malversation may
ordinary, orderly court processes in be committed by a public officer, by a
order to have it, or as to affect the very private individual who is entrusted with
jurisdiction of the Court required to the custody of a property which has
conduct it. The evidence of the State been levied by the government (Article
or of the accused does not become 222, RPC)”
weaker or stronger whether presented So, f-in-ile-an sya ng kaso sa
at a joint or separate trial; the rights of Sandiganbayan… malversation eh! He
the accused are not enhanced or now questions the jurisdiction of the
diluted by the character of a trial as Sandiganbayan: I am not a public
joint or separate; the procedure officer. If you want to sue me, you sue
prescribed in either situation is me in the regular courts, not here in
essentially the same.” the Sandiganbayan!
So joint trial is possible kung pwede pa. Eh ISSUE: Does the Sandiganbayan
kung wala na? Eh di maiwan ka na lang dyan! have the jurisdiction over a private
Now, sabihin mo: “No! No! the the law says ‘joint individual who is charged with
trial!’ I should not be tried alone.” The SC in the malversation of public funds or
case of Bondoc said: Teka muna, do you have an property as a principal after the said
individual has been designated by the “We are not persuaded. The
BIR as custodian of a restrained language of the foregoing provision is
property? Did such accused become a clear. A private individual who has in
public officer and therefore subject to his charge any of the public funds or
the Sandiganbayan jurisdiction as a property enumerated therein and
consequence of such designation? commits any of the acts defined in any
of the provisions of Chapter Four, Title
HELD: No. The Sandiganbayan Seven of the RPC, should likewise be
does not have the jurisdiction over penalized with the same penalty
him. The law equivocally specifies: meted to erring public officers.
“…the only instances when the Nowhere in this provision is it
Sandiganbayan will have jurisdiction expressed or implied that a private
over a private individual, i.e. when the individual falling under said Article 222
complaint charges the private is to be deemed a public officer.”
individual either as a co-principal,
accomplice or accessory of a public
officer or employee who has been What it says is, you can be charged for
charged with a crime within its malversation. That’s all. But he is still a private
jurisdiction. individual and therefore he cannot be tried alone
The Information does not charge in the Sandiganbayan.
petitioner Azarcon of being a co-
principal, accomplice or accessory to a Q: Under the present law, anti-graft or crimes
public officer committing an offense committed by public officers below Grade 27,
under the Sandiganbayan's RTC man yan ba! Now, suppose you are
jurisdiction. Thus, unless petitioner be convicted by the RTC, where will you appeal?
proven a public officer, the A: Sandiganbayan. It becomes the appellate
Sandiganbayan will have no court.
jurisdiction over the crime charged.
“Granting arguendo that the Q: Eh halimbawa, MTC? The case is tried by
petitioner, in signing the receipt for the the MTC because the penalty is up to 6 years
truck constructively distrained by the only. Convicted ka, where will you appeal?
BIR, commenced to take part in an A: RTC, in accordance with the judiciary law.
activity constituting public functions, he
obviously may not be deemed Q: From the RTC, convicted pa rin! Where will
authorized by popular election. The you appeal?
next logical query is whether A: Petition for Review before the
petitioner's designation by the BIR as Sandiganbayan. Do not go to CA. The
a custodian of distrained property Sandiganbayan takes the place of the CA.
qualifies as appointment by direct
provision of law, or by competent And take note, Sandiganbayan is now given
authority. We answer in the negative. the exclusive original jurisdiction over petition for
“However, we find no provision in issuance of writ of mandamus, prohibition,
the NIRC constituting such person a certiorari, habeas corpus, injunction and other
public officer by reason of such auxiliary writs and processes in aid of its
requirement. The BIR's power appellate jurisdiction. Ayan! “in aid”… yan ang
authorizing a private individual to act importante dyan.
as a depositary cannot be stretched to
include the power to appoint him as a
public officer. The prosecution argues
that "Article 222 of the Revised Penal
Code . . . defines the individuals
covered by the term 'officers' under Rule 110
Article 217 . . ." of the same Code.
And accordingly, since Azarcon PROSECUTION OF
became a "depository of the truck
seized by the BIR" he also became a OFFENSES
public officer who can be prosecuted
under Article 217 . . .” Q: How are criminal cases or actions
instituted? new rules, some cases triable by the MTC may

A: Section 1, Rule 110. also require preliminary investigation.
SECTION 1. Institution For example in the RTC, more than 6 years,

of criminal actions.– kailangan may preliminary investigation yan.
Criminal actions shall be Under Section 1, from the moment you file a
instituted as follows: complaint with the proper officer for the purpose
(a) For offenses where of conducting a preliminary investigation, it is
a preliminary already institution.
investigation is required
pursuant to section 1 of Q: Who are these officers referred to?
Rule 112, by filing the A: They are mentioned in Section 2, Rule 112:
complaint with the proper
officer for the purpose of SEC. 2. Officers
conducting the requisite authorized to conduct
preliminary investigation. preliminary
(b) For all other investigations. –
offenses, by filing the The following may
complaint or information conduct preliminary
directly with the investigations:
Municipal Trial Courts and (a) Provincial or City
Municipal Circuit Trial Prosecutors and their
Courts, or the complaint assistants;
with the office of the (b) Judges of the
prosecutor. In Manila and Municipal Trial Courts and
other chartered cities, Municipal Circuit Trial
the complaints shall be Courts;
filed with the office of (c) National and
the prosecutor unless Regional State
otherwise provided in Prosecutors; and
their charters. (d) Other officers as
The institution of the may be authorized by law.
criminal action shall Their authority to
interrupt the running of conduct preliminary
the period of prescription investigations shall
of the offense charged include all crimes
unless otherwise provided cognizable by the proper
in special laws. (1a) court in their respective
territorial jurisdictions.
The language has been changed no? If you (2a)
try to compare it with the old Rules, merong major
changes, meron man ding pareho. The language Q: How about those other offenses which DO
is now simplier. NOT require preliminary investigation?
A: Under the new rules, yung below 4 years
Q: Is there a difference between and 2 months ang penalty – they are triable by
commencement of criminal action and institution the MTC. (If the penalty is 4 years, 2 months
of criminal action? and 1 day, it requires preliminary investigation.)
A: Yes. When you say “commencement”,
generally it is already in the court once it is filed in Q: How do you institute them? Like slight
court. But “institution” is earlier. When you file a physical injuries…
complaint with the fiscal’s office, it is already an A: You have two (2) options:
institution. 1. File a complaint with the prosecutor’s
office in the city or provincial who will
Q: Is preliminary investigation required in all now file the case in court; or
criminal cases? Because there are some criminal 2. Kung gusto mo, direct filing. You can
cases which do not require preliminary file the complaint directly to the MTC.
investigation. Like sa munisipyo, police man ang
A: Generally, all RTC cases require mag-file ba.
preliminary investigation. But right now under the
However in 1983 in the case of Francisco vs.

However in Davao City we do not see that CA, the SC made it total na: the filing of the
because under the rules, in Metro Manila and complaint whether in the MTC or the fiscal’s office
other chartered cities, the complaint shall always for preliminary investigation is sufficient to
be filed with the office of the prosecutor unless interrupt the running of the prescriptive period.
the charter of the city provides otherwise. However, in 1985 when the rules were revised,
the SC rejected the ruling in the Francisco case:
So again, the complaint can be filed either in the filing of the complaint in the fiscal’s office
the MTC in the province or office of the fiscal does not interrupt the running of the prescriptive
merely for preliminary investigation. Unlike in period. But in 1988, in-amend na naman ang
chartered cities na puro fiscals lang ang rules: the filing of the complaint in the fiscal’s
authorized to conduct preliminary investigation. office is sufficient to interrupt the running of the
For example: Murder, the police can file a prescriptive period.
complaint for murder before the MTC of Sta.
Cruz, Davao del Sur. That is not for trial but only And here comes the 1992 case of Zaldivia vs.
for preliminary investigation because the MTC of Reyes Sr. (211 SCRA 277) which was a criminal
Sta. Cruz has no power to try a murder case. case covered by the Summary Rules.
The institution of the ZALDIVIA vs. REYES SR.

criminal action shall 211 SCRA 277
interrupt the running of
the period of prescription FACTS: It was a violation of a
of the offense charged municipal ordinance. Arresto Menor
unless otherwise provided lang yan e. F-in-ile sa fiscal’s office.
in special laws. (last The fiscal is relaxed because
paragraph, Section 1, Rule according to him: the filing of the case
110) with the fiscal’s office is sufficient to
interrupt the running of the prescriptive
QUESTION: Does the filing of the complaint period. So, relax siya… he took his
with the prosecutor’s office interrupt the running time.
of the prescriptive period of the crime? F-in-ile niya (fiscal) sa court after 3
months. Pag-file niya, motion to
In the old case of People vs. del Rosario quash: “Prescribed!” Fiscal: “Hindee!
(1964), SC: No. When a complaint is filed in the When the case is filed with the fiscal’s
municipal court only for the purpose of preliminary office, the running of prescriptive
investigation, it does not interrupt the running of period is interrupted!”
the prescriptive period. What interrupts is the
filing of the complaint in court which has HELD: You (fiscal) are wrong. The
jurisdiction to try the case. filing of this case before your office did
not interrupt the running of the
That is reiterated 3 years later in the case of prescriptive period. You should have
People vs. Coquia. The SC modified it in the case filed that on time before the court.
of People vs. Olarte where a complaint for murder REASON: You look at the first
is filed in the MTC for preliminary investigation. paragraph of Section 1 (1988 Rules):
The issue is: Is the running of the prescriptive “in cases not covered by the Rules of
period interrupted? SC: Yes, abandoning the Summary Procedure…” So, that rule
case of Coquia and del Rosario. Why? Because only applies in cases not covered by
the Penal Code says, the filing of the complaint the Summary Rules. But the case at
interrupt the running of the prescriptive period. bar is covered by the Summary Rules
Article 91 of the RPC does not distinguish precisely because it is only arresto
whether the filing is for trial or merely for menor.
preliminary investigation. However the SC said
here, the complaint is filed in court for preliminary Therefore, when the case is covered by the
investigation. If it is filed in the fiscal’s office also Rules of Summary Procedure, the filing of the
for preliminary investigation, Hindi [does not case with the fiscal’s office does not interrupt the
interrupt]!! “Court” not “Fiscal”. That is the original running of the prescriptive period (Zaldivia vs.
ruling. Reyes, Jr, 211 SCRA 277). It should be the filing
of the case before the court which will interrupt.
So, klaro yan until the 1998 case of making power, is not allowed to diminish,
increase or modify substantive rights. Hence, in
case of conflict between the Rule on Summary
REODICA vs. COURT OF APPEALS Procedure promulgated by this Court and the
292 SCRA 87, Davide, Jr. J. Revised Penal Code, the latter prevails.”
(choy!) (Reodica vs. CA, supra)
FACTS: The charge here was Yan! When I was reading this case, I said,
slight physical injuries through what happened to Zaldivia case? Was it
reckless imprudence which is actually reversed? SC: No! No! We never reversed
punishable by arresto menor. It was Zaldivia. “Neither does Zaldivia control in this
filed with the fiscal’s office within 2 instance. It must be recalled that what was
months but it was filed in the court involved therein was a violation of a municipal
beyond 2 months. And definitely, it is ordinance; thus, the applicable law was not Article
covered by the Summary Procedure. 91 of the Revised Penal Code, but Act. No. 3326,
In Zaldivia case, the filing in the fiscal’s x x x x x Under, Section 2 thereof, the period of
office interrupts the running of the prescription is suspended only when judicial
prescriptive period. proceedings are instituted against the guilty party.
Accordingly, this Court held that the prescriptive
NOTE: Remember, the case of period was not interrupted by the filing of the
Zaldivia involved a violation of an complaint with the Office of the Provincial
ordinance. Prosecutor, as such did not constitute a judicial
proceeding; what could have tolled the
HELD: But in the case at bar, this prescriptive period there was only the filing of the
is a felony under the Penal Code. information in the proper court. In the instant
[Dean I: Ginawan pa ng distinction!] If case, as the offenses involved are covered by the
it is a felony, the filing with the fiscal’s Revised Penal Code, Article 91 thereof and the
office is sufficient to interrupt the rulings in Francisco and Cuaresma apply. Thus,
running of the prescriptive period even the prescriptive period for the quasi offenses in
if it is covered by the Summary Rules. question was interrupted by the filing of the
But, if it is a light offense punished by complaint with the fiscal's office three days after
a special law like an ordinance and the vehicular mishap and remained tolled pending
therefore covered by the Summary the termination of this case. We cannot, therefore,
Rules, then the filing in the fiscal’s uphold petitioner's defense of prescription of the
office does not interrupt the running of offenses charged in the information in this case”
the prescriptive period. (Reodica vs. CA, supra).
So I start to wonder: Saan ba nanggaling Yan! And I think the Reodica case is now
‘yung distinction na ‘yun? The SC cited Act 3326 incorporated in the new rules. You read the last
which is the law governing prescription of crimes paragraph of Section 5, Rule 110:
punished by special laws. Whereas, Article 90 of
the RPC refers to prescription of felonies under “The prosecution for
the Penal Code. And under Act 3326, it is very violation of special laws
clear that the prescription period for the crime shall be governed by the
(punished by a special law) is interrupted only provision thereof. (n)”
upon judicial proceeding – filing in the court.
It is an entirely new sentence. Tama man yan
Ayun pala! Akala ko the Zaldivia case settled ba: The prosecution for violation of special laws
the rule after all. Meron pa palang Reodica. shall be governed by the provision thereof. I think
that’s the Reodica case: when it comes to
The SC said: The revised rules of Summary prosecution for violations of special law, you
Procedure “cannot be taken to mean that the follow the special law.
prescriptive period is interrupted only by the filing
of a complaint or information directly with said
courts. It must be stressed that prescription in SEC. 2. The complaint
criminal cases is a matter of substantive law. or information – The
Pursuant to Section 5(5), Article VIII of the complaint or information
Constitution, this Court, in the exercise of its rule- shall be in writing, in
the name of the People of writing charging a person

the Philippines and with an offense,
against all persons who subscribed by the
appear to be responsible prosecutor and filed with
for the offense involved the court. (4a)
(2a)
Q: Who are the people authorized to institute
Q: How do you file a complaint? or commence criminal cases?
A: The complaint shall be in writing in the A: The following:
name of the People of the Philippines and against 1. Offended party;
all persons who appear to be responsible for the 2. Peace officer;
offense involved. 3. Prosecutor; and
4. Public officer charged with the
Q: What happens if the criminal complaint or enforcement of the law.
information is filed in the name of the private
complainant? Q: How do you distinguish a complaint from
A: According to the SC, the complaint is information?
defective. It can be quashed but it is only a formal A: The following are the distinctions:
defect. In case it proceeds to trial, it should be
corrected but it is not really a fatal mistake. It can 1. As to who files the complaint or
be cured at any stage of the action by amending information
the information or even if it is not cured, there is a A COMPLAINT is filed by the (a)
valid judgment, you are found guilty, it shall no be offended party; (b) any peace officer;
voided merely because the title is defective. It will (c) prosecutor; (d) or any public officer
not invalidate the proceedings. charged with the enforcement of the
law.
Now the law says, “against all who appear to On the other hand, an
be responsible.” Meaning, it is the sworn duty of a INFORMATION is prepared and
policeman or fiscal to file a case against all who signed by the prosecutor.
appear to be responsible. It does not say who are
guilty. 2. As to purpose
A COMPLAINT filed in court is
Q: How do you define complaint? either for preliminary investigation or
A: Section 3, Rule 110: for trial, but an INFORMATION filed in
court is only for trial.
SEC. 3. Complaint
defined. – A complaint is 3. As to where to file
a sworn written statement A Complaint may be filed in court
charging a person with an or in the office of the prosecutor, but
offense, subscribed by the an INFORMATION is always filed in
offended party, any peace court.
officer, or other public
officer charged with the 4. A COMPLAINT can be filed in court,
enforcement of the law for trial or for mere preliminary
violated. (3) investigation, or it can even be filed
not in court but in the prosecutor’s
Q: Supposes a complaint is filed but it was not office for preliminary investigation. But
sworn to or signed, is it valid? where an INFORMATION is filed, it is
A: The SC said, it is a formal defect. It can be always filed in court and always for
cured. Generally, the signature is not needed. trial.
The complaint contemplated in Section 2

Q: How do you define information? could be filed in the MTC for trial (e.g. physical
A: Section 4, Rule 110: injuries), or it could be a complaint for murder in
the MTC, not for trial but for preliminary
SEC. 4. Information investigation.
defined. – An information
is an accusation in The complaint filed in the fiscal’s office, city or
province, is known in Spanish as “DENUNCIA” offended party cannot

which is filed for preliminary investigation as institute criminal
distinguished from the real complaint mentioned prosecution without
in Section 3. In Section 3, it is always filed by the including the guilty
offended party. Although in some cases like when parties, if both are
the offended party died, it is the police who files alive, nor, in any case,
the affidavit complaint before the prosecutor’s if the offended party has
office for preliminary investigation. consented to the offense
or pardoned the offenders.
EXAMPLE: Pedro was a victim of robbery. The offenses of
Can he file a complaint for robbery? YES. What if seduction, abduction and
he died before he could file? acts of lasciviousness
shall not be prosecuted
Q: Can the family of Pedro file a complaint upon a complaint filed by
under Section 3? the offended party of her
A: No, because they are not the offended parents, grandparents or
party. They should file a complaint in the fiscal. If guardian, nor, in any
you are talking of a complaint filed under Section case, if the offender has
3, you must be the offended party. But a been expressly pardoned by
complaint filed with the fiscal, need not be by the any of them. If the
offended party. (Evarle vs. Sucaldito, 156 SCRA offended party dies or
808) becomes incapacitated
before she can file the
complaint, and she has no
That is the distinction, and the fiscal has the
known parents,
authority to investigate any crime whether the one
grandparents or guardian,
complaining is the victim or not because the
the State shall initiate
offended party is the People of the Philippines.
the criminal action in her
behalf.
SEC. 5. Who must The offended party,
even if a minor, has the
prosecute criminal
actions. – All criminal right to initiate the
prosecution of the
actions commenced by a
complaint or information offenses of seduction,
shall be prosecuted under abduction and acts of
the direction and control lasciviousness
of the prosecutor. independently of her
However, in Municipal parents, grandparents, or
Trial Courts or Municipal guardian, unless she is
incompetent or incapable
Circuit Trial Courts when
the prosecutor assigned of doing so. Where the
thereto or to the case is offended party, who is a
not available, the minor, fails to file the
offended party, any peace complaint, her parents,
officer, or public officer grandparents, or guardian
charged with the may file the same. The
enforcement of the law right to file the action
violated may prosecute the granted to parents,
case. This authority shall grandparents, or guardian
cease upon actual shall be exclusive of all
intervention of the other persons and shall be
prosecutor or upon exercised successively in
elevation of the case to the order herein provided,
the Regional Trial Court. except as stated in the
The crimes of adultery preceding paragraph.
and concubinage shall not No criminal action for
be prosecuted except upon defamation which consists
a complaint filed by the in the imputation of any
offended spouse. The of the offenses mentioned
above shall be brought PEOPLE vs. RAMOS

except at the instance of
and upon complaint filed 207 SCRA 144
by the offended party.
(5a) FACTS: The case is triable by the
The prosecution for MTC of Ilocos Norte. The offended
violation of special laws party went to the fiscal and filed the
shall be governed by the information. During the trial, the judge
provision thereof. (n) declared the fiscal in contempt of court
as when the case was called for trial,
However once the case is in court, the the fiscal was not around. The fiscal
complaint or information filed shall be prosecuted answered in writing. When asked to
under the direction and control of the public explain why he refused to come to
prosecutor. This shows the control of the court despite the previous order, he
government. This is one feature of the said his office is undermanned or
Inquisitorial System of criminal procedure. The understaffed. Thus he could not
fiscal has the absolute control. personally appear and prosecute. At
any rate, the fiscal pointed out in his
Q: Can the offended party hire his own lawyer explanation that the prosecution of the
to prosecute? case can be handled by the offended
A: YES, the offended party can hire his own party or any peace officer.
lawyer who is known as the private prosecutor.
The personality of the private prosecutor is based ISSUE: Who should prosecute the
on the provision in the RPC that every person case? The public prosecutor or any of
criminally liable is also civilly liable. It is because the persons mentioned in Section 5,
of this civil liability that the offended party has an Rule 110?
interest in the criminal case.
HELD: It is the public prosecutor
Even if the public prosecutor may turn over who should prosecute the case
the active conduct of the trial to the private because he already knew about the
prosecutor, he must be present during the case. He was the one who
proceedings because he is, by law, duty-bound to investigated the case. Therefore, he
take charge of the prosecution of the case until its should continue in the prosecution of
termination. the case in court. While it is true that
the law allow the offended party, any
If the public prosecutor or fiscal and the peace officer, or other public officer to
private prosecutor do not agree on how to prosecute a criminal case in places
prosecute, the fiscal will prevail because the where there are no fiscals available,
private prosecutor is under the direct control of that is only the EXCEPTION.
the fiscal. The GENERAL RULE is that the
fiscal himself should handle the
Q: What happens if there are no fiscal in a prosecution of the criminal case. It is
municipality? his duty and moral obligation to
A: According to Section 5, Rule 110: prosecute the case after having
“However, in Municipal Trial Courts or Municipal conducted the investigation and,
Circuit Trial Courts when the prosecutor assigned believing that there is a case, filed an
thereto or to the case is not available, the information in court.
offended party, any peace officer, or public officer “The Court feels that in those
charged with the enforcement of the law violated cases where the prosecutors
may prosecute the case.” themselves have filed the criminal
charges, there is all the more reason
This provision that if there is no prosecutor, for them to actively intervene in their
puwede sila, is taken from the ruling of the SC in prosecution. Having presumably made
the case of People vs. Beriales, 17 SCRA 24. the necessary investigation of these
Usually, in the absence of the fiscal, it is the cases before filing the corresponding
police authorities who act as prosecutors. informations, they are the best position
However, according to the SC in the 1992 case of to handle their prosecution on the
basis of their initial findings. If the
prosecutor had not determined the The offenses of

prima facie guilt of the accused, he seduction, abduction and
should not have filed the information in acts of lasciviousness
the first place. At any rate, there is shall not be prosecuted
something not quite correct in the upon a complaint filed by
prosecutor filing the information the offended party of her
himself and then leaving the offended parents, grandparents or
party in the lurch, as it were, by asking guardian, nor, in any
him to fend for himself in prosecuting case, if the offender has
the case. been expressly pardoned by
“The exception provided in Section any of them. If the
5 must be strictly applied as the offended party dies or
prosecution of crime is the becomes incapacitated
responsibility of officers appointed and before she can file the
trained for that purpose. The violation complaint, and she has no
of the criminal laws is an affront to the known parents,
People of the Philippines as a whole grandparents or guardian,
and not merely the person directly the State shall initiate
prejudiced, who is that the prosecution the criminal action in her
be handled by persons skilled in this behalf.
function instead of being entrusted to
private persons or public officers with Take note that in the third paragraph, RAPE is
little or no preparation for this already deleted. It is not a private crime anymore.
responsibility. The exception should be It is already a crime against person because of
allowed only when the conditions the new law – RA 8353, Anti-Rape Law of 1997 –
therefor as set forth in Section 5, Rule amending the RPC. Now, it can be prosecuted
110 of the Rules on Criminal without the private complainant.
Procedure have been clearly
established.” Q: The SC said in one case that there is no
such animal as Private Crimes because every
crime is against the State. But why do we call
According to Section 5, the criminal action these private crimes - adultery, concubinage,
shall be under the control and supervision of the seduction, abduction, and acts of lasciviousness?
prosecutor. That is only applicable if you are A: It is because of all these requirements: the
talking of the trial court. But if the criminal case is complaint is duly prepared, signed and sworn to
lifted in the CA or SC on appeal, wala ka nang by the offended party. Actually, the correct name
pakialam. It should be the Solicitor General who of these crimes is CRIMES WHICH CANNOT BE
must represent the People of the Philippines. PROSECUTED DE OFFICIO.
The next paragraphs of Section 5 are Q: What is the reason for the requirement that
somehow reiterated in Article 144, RPC, which is they shall be prosecuted upon complaint of the
popularly known as PRIVATE CRIMES: offended party?
A: This requirement was imposed out of
The crimes of adultery consideration for the offended party or her
and concubinage shall not relatives who might prefer to suffer the outrage in
be prosecuted except upon silence rather than go through with the scandal of
a complaint filed by the a public trial. (Sumilin vs. CFI, 57 Phil. 298;
offended spouse. The People vs. Santos, 101 Phil. 798)
offended party cannot
institute criminal In ADULTERY or CONCUBINAGE, the
prosecution without offended party is only the husband or the wife.
including the guilty The parents have nothing to do with the adultery
parties, if both are or concubinage. In adultery, it is not allowed that
alive, nor, in any case, the husband files a complaint against his wife
if the offended party has without including her paramour. Nor is it allowed
consented to the offense that the husband files a case for adultery against
or pardoned the offenders. his wife’s lover without including his wife. The law
provides, “xxx the offended party cannot initiate
criminal prosecution without including the guilty

parties, if both are alive, xxx”. The same rule PROBLEM: Suppose a victim of a private
applies in concubinage. crime in a municipality prepared a complaint,
swore to it, and FILED IT IN THE MTC FOR
In either case, consent or pardon by the PRELIMINARY INVESTIGATION. [Remember
offended party is a bar to criminal prosecution. that in provinces, there are two (2) possibilities if
Consent indicates allowance. you want to file a case in the RTC: (1) file a
complaint in the MTC for preliminary
SEDUCTION, ABDUCTION, ACTS OF investigation, or (2) file a complaint with the
LASCIVIOUSNESS. If the victim is already of provincial fiscal’s office also for preliminary
AGE, the decision of filing or not filing the case investigation. Unlike in the cities we only file with
belongs to her. the fiscal because only one is allowed to conduct
preliminary investigation in chartered cities.] After
Q: What happens if the offended party is a the preliminary investigation, the judge said there
MINOR and does not want to file? is a probable cause and therefore, forwarded the
A: The parents, grandparents, or guardian case to the provincial fiscal. The fiscal filed the
may file the complaint. information in the RTC.
Q: Suppose the minor is incompetent as in the Q: Can the RTC try the case when there is no
case of insanity, who will file the complaint? complaint by the offended party in the RTC?
A: Her parents, grandparents or guardian my A: The SC said YES. The complaint filed in
institute the case. the MTC for preliminary investigation will already
serve the purpose. There is no need for another
Q: Suppose the minor has no known parents, complaint to be prepared and signed by the victim
grandparents, or guardian? to be filed with the RTC.
A: The State shall initiate the criminal action in
her behalf under the principle of Parens Patriae. PROBLEM: Suppose the offended party of a
private crime in a municipality, instead of filing the
Q: What happens when an information for complaint in the MTC, she filed it in the office of
adultery or concubinage is filed without a the provincial fiscal or prosecutor.
complaint? Is it a jurisdictional effect?
A: According to some rulings, it is a Q: Will the case prosper?
jurisdictional defect. The SC held that compliance A: The SC said NO. The case must be
in Article 344 and counterpart (as well as other dismissed because the complaint contemplated
crimes against chastity) is jurisdictional, and not by the law, signed and sworn to by the victim, is a
merely a formal, requirement. While in point of complaint FILED IN COURT, not a complaint filed
strict law the jurisdiction of the court over the in the fiscal’s office.
offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just Q: What should be the correct procedure?
as jurisdictional mandate since it is that complaint A: After preliminary investigation, the fiscal
which starts the prosecutory proceeding and should prepare a complaint and should prepare
without which the court cannot exercise its an information signed by him and the victim.
jurisdiction to try the case. (People vs. Mandea, Unlike where the complaint filed in the MTC for
60 Phil. 372; People vs. Surbano, 37 SCRA 565; preliminary investigation, there is no need for
People vs. Babasa, 97 SCRA 672; Pilapil vs. another complaint to be filed in the RTC. But if the
Ibay-Somera, 174 SCRA 653) complaint (denuncia) is filed in the fiscal’s office,
the rule is: it will not serve as the basis for a
But there is a SECOND VIEW: You can criminal prosecution. In connection with this
question the filing but it is not jurisdictional. It is a principle is the leading case of
condition precedent but not jurisdictional because
if you say jurisdiction, they are vested by the
judiciary law. There is nothing in the judiciary law PEOPLE vs. ILARDE
which can speak about complaint filed in court by
the offended party. (People vs. Estrebella (1986); 125 SCRA 11
People vs. Saniaga (1988); People vs. Bugtong
(1989); People vs. Tarul (1989); People vs. FACTS: This is a case for adultery
Cabodac (1992); People vs. Leoparde (1992); originated in the City of Iloilo. A man
People vs. Hilario (1993) caught his wife in an act of adultery.
The next thing he did was to execute Thus, the law leaves it to the option of
an affidavit-complaint, which he filed in the aggrieved spouse to seek judicial
the office of the City Prosecutor of redress for the affront committed by
Iloilo City. In his affidavit he said, “I’m the erring spouse. And this, to Our
formally charging my wife and X and mind, should be the overriding
would request this affidavit be consideration in determining the issue
considered as a formal complaint of whether or not the condition
against them.” While the case was precedent prescribed by said Article
pending before the fiscal for 344 has been complied with. For
investigation, he died. So the Fiscal needless to state, this Court should be
asked how he can file an information guided by the spirit, rather than the
in court when there is no complaint letter, of the law.”
because the rule is, the complaint filed “In the case at bar, the desire of
with the fiscal’s office is not the the offended party to bring his wife and
complaint contemplated by law; there her alleged paramour to justice is only
must be a complaint filed signed by too evident. Such determination of
the offended party. But in this case, purpose on his part is amply
the complainant was already dead. demonstrated in the dispatch [speed]
Although there was an affidavit- by which he filed his complaint with the
complaint. fiscal’s office [because he filed the
The fiscal knew that and so he complaint the day after the crime
prepared an information for adultery happened]. The strong and equivocal
charging the wife and her paramour. In statement contained in the affidavit
the information he stated: “The filed with the Fiscal's Office that “I am
undersigned City Fiscal upon sworn formally charging my wife of the crime
statement originally filed by the of adultery and would request that this
offended party, xerox copies of which affidavit be considered as a formal
are hereto attached as annexes A and complaint against them” – is a clear
B …xxx” So what he did was to show of such intent.”
incorporate the affidavit of the “The ruling in People vs. Santos is
deceased offended husband in the not applicable to the case at bar. In
information. that case, the sworn statement was
Now, the wife and the paramour not considered the complaint
moved to quash the information contemplated by Article 344 of the
alleging lack of jurisdiction upon the Revised Penal Code because it was a
offense charged because under Article mere narration of how the crime was
344 of the RPC, the requirement for committed. Whereas, in the case at
the complaint of adultery was not bar, in the affidavit-complaint
complied with citing the case of People submitted by the offended husband,
vs. Santos, 101 Phil. 798, where it was he not only narrated the facts and
held that the complaint filed in the circumstances constituting the crime of
fiscal’s office for a private crime is not adultery, but he also explicitly and
the complaint contemplated by law. On categorically charged private
that basis, RTC Judge Ilarde respondents with the said offense –
dismissed the case. “I’m charging my wife and her
The prosecution went to the SC on paramour with adultery.”
certiorari. “Moreover, in Santos, the SC
noted that the information filed by the
HELD: The respondent trial court fiscal commenced with the statement
is wrong. The order of dismissal is ‘the undersigned fiscal accuses so and
hereby set aside and is directed to so,’ the offended party not having
proceed with the trial of the case. “It been mentioned at all as one of the
must be borne in mind, however, that accusers. But in the present case, it is
this legal requirement was imposed as if the husband filed the case.”
out of consideration for the aggrieved “The affidavit of the husband here
party who might prefer to suffer the contains all the elements of a valid
outrage in silence rather than go complaint under Section 5, Rule I10 of
through the scandal of a public trial. the Rules of Court. What is more, said
complaint-affidavit was attached to the Q: Is the accusation “mang-aagaw ng asawa

information as an integral part thereof, ng may asawa!” an imputation of adultery?
and duly filed with the court. A: No. It is a mere implication of a vice or
Therefore, the affidavit complaint defect, not an imputation of adultery. The phrase
became the basis of the complaint was translated as “seducer of the husbands of
required by Section 5.” other woman.” It implies that the person to whom
it is addressed is a FLIRT, a TEMPTRESS, or
one who indulges in inciting another’s husband.
So it became sort of an exception to the (Gonzales vs. Arcilla, November 18, 1991)
general rule that the affidavit-complaint in the
fiscal’s office is not the one contemplated by law. The last paragraph states that “The
While I was reading this case, I noticed that the prosecution for violation of special laws shall be
fiscal was very imaginative on what he is going to governed by the provision thereof.” The best
do, kasi alam niya ang rules eh. That fiscal is now example is the case of Reodica vs. CA, which we
Solicitor General Galvez. And I was surprised already discussed, that prescription for violation
why the husband drafted the affidavit that way. of a special law is not governed by the RPC but
Maybe he knew he was dying. Later, they found by special law. The ruling was emphasized in the
out that the husband was a lawyer. And do not be 1996 case of
shocked, the paramour was also a lawyer! So that
was a very interesting case. The ruling was
reiterated in the 1991 case of PEOPLE vs. LLENES vs. DICDICAN
JAROL (June 19, 1991).
July 31, 1996
Last paragraph, Section HELD: “The institution of the

5, Rule 110: No criminal complaint in the prosecutor’s office
action for defamation shall interrupt the period of
which consists in the prescription of the offense charged
imputation of any of the under Section 1, Rule 110. The rule,
offenses mentioned above however, is entirely different under Act
shall be brought except at No. 3326, as amended, whose Section
the instance of and upon 2 explicitly provides that the period of
complaint filed by the prescription shall be interrupted by the
offended party. institution of judicial proceedings, i.e.,
the filing of the complaint or
The fifth paragraph of Section 5 is taken from information with the court.” Therefore,
Article 360 of the RPC. Article 360 refers to the the filing of the complaint in the fiscal’s
crime of libel or slander. office does not interrupt the running of
the prescriptive period. That is only
Q: Is the crime of defamation [slander is when true in felonies under the RPC. But
you defame somebody orally; libel is when the when in comes to special laws, we
defamation is in writing] a private crime? follow the special law.
A: NO.
Q: Can a case of slander be filed in court Q: When is a complaint or information

without a complaint signed and sworn to by the sufficient?
offended party? A: Read Section 6, Rule 110
A: As a GENERAL RULE, YES, EXCEPT
when the defamation imputes to the offended SEC. 6. Sufficiency of
party the commission of any of the crimes complaint or information.
mentioned above. Meaning, it imputes to the – A complaint or
offended party the commission of a private information is sufficient
offense like adultery, concubinage, abduction, if it states the name of
seduction, acts of lasciviousness (ACASA). In this the accused; the
case, the criminal action shall be brought at the designation of the offense
instance of and upon a complaint filed by the given by the statute; the
offended party. acts or omissions
complained of as
constituting the offense;
the name of the offended produce any adverse effect because what is
party; the approximate important is the identity of the person of the
date of the commission of accused, not his name . (People vs. Ramos, 85
the offense; and the place Phil. 683) Kung nagkamali, eh di palitan!
where the offense was [problema ba yun? Ha!] This reminds me of the
committed. Fortun brothers – the Delia Rajas incident during
When an offense is the impeachment trial.
committed by more than one
person, all of them shall
be included in the SEC. 8. Designation of
complaint or information. the offense. – The
(6a) complaint or information
shall state the
Q: Suppose the information is defective, designation of the offense
kulang-kulang ba, there are some essential facts given by the statute, aver
required by law which are not stated. Can it be the acts or omissions
cured during the trial? constituting the offense,
A: YES. Any defect in the complaint or and specify its qualifying
information may be cured by evidence introduced and aggravating
by the prosecution, EXCEPT: circumstances. If there is
no designation of the
1. when the defect is jurisdictional offense, reference shall
(People vs. Abad Santos, 76 Phil. be made to the section or
744); or subsection of the statute
2. when the complaint or information punishing it. (8a)
does not charge any offense. (People
vs. Austria, 94 Phil. 897) SEC. 9. Cause of the
accusation – The acts or
SEC. 7. Name of the omissions complained of as
accused. – The complaint constituting the offense
or information must state and the qualifying and
the name and surname of aggravating circumstances
the accused or any must be stated in ordinary
appellation or nickname by and concise language and
which he has been or is not necessarily in the
known. If his name cannot language used in the
be ascertained, he must be statute but in terms
described under a sufficient to enable a
fictitious name with a person of common
statement that his true understanding to know what
name is unknown. offense is being charged
If the true name of the as well as its qualifying
accused is thereafter and aggravating
disclosed by him or circumstance and for the
appears in some other court to pronounce
manner to the court, such judgment. (9a)
true name shall be
inserted in the complaint There is one major change here. The law now
or information and record. specifically emphasizes under Section 8 and
(7a) Section 9 that you do not only mention the crime.
You must also specify the aggravating and the
qualifying circumstance. What is new here is the
Q: One of the requirements under Section 7 is “aggravating.”
that the name of the accused must be stated in
the information. Eh kung nagkamali ka? Is that The old rule is, there is no need of specifying
fatal? What is the effect of an erroneous name the aggravating circumstances because anyway,
given to the accused in the complaint or they are not elements of the crime. They are only
information? circumstances that affect the criminal liability and
A: The defect is not fatal. The error will not if the aggravating circumstances are proven, they
can still be applied against the accused. The new FACTS: A complaint was filed by
law now says you do not only specify the the woman stating that “while the
qualifying, you also mention the aggravating. offended party was inside her house at
Now, how does it affect the old jurisprudence? night and all the doors were locked
and all the windows were closed, the
Q: My question is this, based on my own accused surreptitiously entered the
interpretation of Sections 8 and 9, Problem: the house and approached the offended
information does not allege the aggravating party who was asleep, raised her skirt
circumstances. In the course of the trial, the and at that very moment the woman
prosecution starts proving. Under the new rule, woke up and resisted.” [This can be an
the defense can object to any evidence to prove attempted rape but the element of the
the aggravating circumstance because the same crime was not fully accomplished
is not mentioned in the information. But I will go because of an act or accident other
further: an aggravating circumstance is not than her own resistance.] But sabi ng
alleged in the information and the prosecution caption, “for trespass to dwelling” –
starts proving and there was no objection on the pwede man din.
part of the defense. Now, can the court in
imposing the penalty, consider the aggravating HELD: Sabi mo, “trespass”. OK,
circumstance? eh di trespass! So the caption prevails.
A: My personal view is YES because of the When the facts appearing in the
waiver for failure to object, in the same manner complaint or information are so stated
that an aggravating circumstance not alleged may that they are capable of two or more
still be considered as such. My only interpretation interpretations, then the designation of
of this provision is that if this is not alleged in the the offense in the caption controls.
complaint or information and the prosecution
starts proving it, the defense can object and that
objection must be sustained. But if there is no Take note that under the new rape law, RA
objection, the old rule can still be applied because 7659, there are some circumstances which if
of estoppel or waiver. present call for the mandatory death penalty. In
the case of
Well, that is my personal view on that matter. I
do not know whether my view is correct or not. PEOPLE vs. MANHUYOD, JR.
But I believe my view is correct because anyway
even the judges here in Davao are asking for my May 20, 1998
view. I receive calls from time to time from these
people. [ehem!] HELD: When you charge
somebody with a heinous crime such
Q: Let’s go to Section 9. Suppose the offense as rape, the information must make
says, “criminal case for murder” but in the body of reference to the new law. If not, it will
the information there is no allegation of a only be translated as an ordinary
qualifying circumstance. What does the fiscal aggravating circumstance because the
charge, Murder or Homicide? information was charged after the
A: HOMICIDE. The SC held that the effectivity of the heinous crime law.
designation of the offense is not an essential “Finally, a few words on the lack of
element of a complaint or information, because, care devoted to the preparation of the
at most that is a mere conclusion of the fiscal. information filed before the trial court.
What is controlling is the recital of facts appearing The Office of the Provincial Prosecutor
in the body of the complaint or information. had in its possession evidence that the
(People vs. Agito, April 28, 1958; People vs. crime was committed by a father
Cosare, 95 Phil. 656) against his 17-year old daughter after
the effectivity of R.A. No. 7659, hence
But there are some EXCEPTIONS like what the imposable penalty was death. It
happened in the case of was then necessary to make reference
to the amendatory law to charge the
U.S. vs. TICZON proper offense that carried the
mandatory imposition of capital
25 Phil. 67 punishment.”
“Prosecutors are thus admonished
to exercise utmost care and diligence ISSUE: Was there a murder?

in the preparation of complaints or
informations to avert legal HELD: YES. When the accused
repercussions which may prove killed the minors, that is equivalent of
prejudicial to the interest of the State killing by treachery and therefore
and private offended parties.” qualifies the killing to murder.
“It has, time and again, been held
that the killing of minor children who,
Q: According to Section 9, the elements of the by reason of their tender years, could
crime must be recited in the complaint or not be expected to put up a defense is
information. Must the exact language of the law considered attended with treachery
be used? even if the manner of attack was not
A: NO. You can use other words provided it shown. The allegation in the
would convey the same idea or thought. Information that the victims are both
minors is to be considered compliance
EXAMPLE: THEFT. The information does not with the fundamental rule that the
contain the allegation “intent to gain” which is an qualifying circumstances should be
element of the crime of theft. The SC said it is not alleged in the information.”
required because those words are presumed from “It is commonly understood in
the information that the accused appropriated to practice that when the victim in
himself the things belonging to the offended party. physical injuries, homicide, or murder
(U.S. vs. Alabot, 38 Phil. 698) cases is a child of tender years, he is
described in the information as a
EXAMPLE: ROBBERY WITH FORCE UPON minor. Minority in such a case should
THINGS. There was no allegation that the not be equated with its statutory
accused entered the house of the victim with the meaning — that is, below eighteen
use of force upon things but the information (18) years old. It is used not so much
alleges that the accused entered the house of the as to state the age of the victim
victim by passing through a hole in the ceiling, an (otherwise, the charging fiscal would
opening not intended for entrance. Ano yan? The have simply placed the exact ages)
SC said that is tantamount to use of force upon rather, it is more of a description of the
things. (People vs. Lareza, 73 Phil. 658) state of helplessness of the young
victim.”
EXAMPLE: MURDER. There was no
allegation of treachery (alevosia) but the
information says that when the accused killed the Q: CONSPIRACY. Jet and Pao are charged
victim, the latter was not in the position to defend for murder pero ang sinasabi sa information, it
himself. The SC said they mean the same thing. was Jet who killed the victim. Now, in conspiracy,
In fact, it became clearer. (People vs. Gustahan, the act of one is the act of all. Would that
47 Phil. 376) sufficiently charge Pao?
A: NO. Kailangan mong i-describe ang
Another interesting case of treachery is the conspiracy para matamaan si Pao. Klaruhin mo
case of yung conspiracy, otherwise if the allegation of
conspiracy is not shown against Pao, then, there
is no crime of conspiracy. This is the guideline
PEOPLE vs. ABUYEN laid down by the SC in the 1998 case of
213 SCRA 569 (1992)
FACTS: The accused here killed PEOPLE vs. QUITLONG

two (2) children, one was aged 6 years
and the other was 13 years old. He 292 SCRA 260
stabbed them. The information
charges the accused with the killing HELD: “Unlike the omission of an
the 2 minors. There is no statement ordinary recital of fact which, if not
that there was treachery. All that the excepted from or objected to during
information says is that the accused trial, may be corrected or supplied by
killed the 2 “minors.” competent proof, an allegation,
however, of conspiracy, or one that
would impute criminal liability to an person in authority. (People vs. Carpizo, 80 Phil.
accused for the act of another or 234) Of course, I believe that if the position is
others, is indispensable in order to obvious, the court will take judicial notice of that.
hold such person, regardless of the There is no need to describe. But if it comes to
nature and extent of his own some position which are not really common, the
participation, equally guilty with the information must recite the functions.
other or others in the commission of
the crime. Verily, an accused must EXAMPLE: TREASON. An information for
know from the information whether he treason is insufficient if it merely alleges generally
faces a criminal responsibility not only that the accused had adhered to the enemy,
for his acts but also for the acts of his giving her aid and comfort. The charge must be
co-accused as well.” specific by stating what is termed as overt act of
Meaning, if you are charging me giving aid and comfort to the enemy. (Guinto vs.
for what my companion did, you better Veluz, 77 Phil. 798)
be clear that there is conspiracy para
ma-apply yung doctrine na ‘the act of EXAMPLE: LIBEL. In charging libel, the
one is the act of all.’ prosecution must single out the libelous
“The opinion of the trial court to the statements and quote verbatim in the complaint
effect that conspiracy may be inferred or information. (People vs. Bustos, 59 Phil. 375)
from the allegation of abuse of
superior strength and with the aid of We will go to another issue regarding
armed men is difficult to accept. the HABITUAL DELINQUENCY. The case is
information must state that the
accused have confederated to commit PEOPLE vs. VENUS
the crime or that there has been a
community of design, a unity of 63 Phil. 435
purpose or an agreement to commit
the felony among the accused. FACTS: The City Fiscal of Manila
Conspiracy must be alleged, not just file with the CFI of Manila an
inferred, in the information on which information charging the accused with
basis an accused can aptly enter his the crime of robbery in an inhabited
plea, a matter that is not to be house. The information alleges,
confused with or likened to the among others,” that the accused is a
adequacy of evidence that may be habitual delinquent, he having been
required to prove it.” previously convicted by final
judgement rendered by a competent
You can prove conspiracy by direct evidence. court, once for the crime of attempted
But kahirap niyan uy unless you were there robbery in an inhabited house and
listening. In criminal law, when two or more once for theft, the date of his last
persons act together in unison to attain the same conviction being November 14, 1934.
criminal objective, then conspiracy can be Note: There is habitual
inferred. Meaning, you can use that as evidence delinquency when, for a period of ten
to convict a person but for purposes of filing the (10) years, from the date of his last
case, you must expressly allege it. conviction or release for a crime of
serious or less serious physical
Therefore, for purposes of charging – injuries, robbery, theft, estafa and
express. For purposes of proving – implied. Yan! falsification, he is found guilty of any of
This is precisely because directly proving it, is said crimes, a third time or oftener.
difficult. The manner of charging is different from
the manner of proving. (People vs. Quitlong, ISSUE: Was there a sufficient
supra) allegation of habitual delinquency?
EXAMPLE: DIRECT ASSAULT. The SC said HELD: NO. “Habitual delinquency,

it is not enough for the information to say that the can not be taken into account in the
victim is a person in authority. The charge for present case because of the
such offense must be so framed as to clearly insufficiency of the allegation on this
allege the functions of the person assaulted, so point in the city fiscal's information.
as to show that he comes under the definition of While the information specifies the
particular offense (attempted robbery of habitual delinquency, no less than

in an inhabited house) for which the the frequency with which hardened
defendant-appellant was alleged to criminals escape the imposition of the
have previously been convicted and deserved additional penalty provided
also the date of the last conviction for for by law.”
theft which occurred prior to the date
of the commission of the offense now
charged. But this does not make the Q: Must excepting clauses be alleged in a
information sufficient in law for it fails complaint or information?
to specify the date of the conviction of A: It DEPENDS. If the excepting clause forms
the accused for the crime of attempted part of the definition of the offense, it must be
robbery. For all we know, the two alleged; but if it is a matter of defense, it need not
previous convictions for attempted be alleged in a complaint or information. (U.S. vs.
robbery in an inhabited house and Chan Toco, 12 Phil. 262)
theft may have taken place on the
same date (November 14, 1934) or on Sometimes it is hard to distinguish what is an
two different dates so close together element of a crime, and what is a matter of
as to warrant the court in considering defense as stated in a law. The exceptive clauses
the two convictions as only one for the such as “provided further”, and “provided
purposes of the application of the furthermore” are very confusing. Sometime you
habitual delinquency law.” get lost. Ano ba itong “provided further”? Is this
“Upon the other hand, it may part of the crime or is it a part of the defense?
happen that a person accused of robo, Confusing ba! Like in the old case of
hurto, estafa or falsificacion may have
been convicted of any of said offenses U.S. vs. POMPEYA
after the commission of the crime with
which he is charged. We have already 31 Phil. 245
held that previous convictions in order
to be considered for the purpose of FACTS: The municipal
imposing the additional penalty for government passed an ordinance
habitual delinquency, must precede which requires all able-bodied male
the commission of the crime charged. residence of the municipality between
Other instances may be mentioned but the ages of 18 and 35 to assist in
those given suffice to demonstrate the peace and order campaign in the
necessity of charging the existence of municipality by rendering services.
habitual delinquency with sufficient The accused violated the ordinance.
clearness and certainty to enable the So he was charged. The information
courts to properly apply the provisions says he is a resident of the
of our law on the subject.” municipality, he is male, he is able-
“It is therefore urged upon bodied and he refuses to render
prosecuting attorneys that in the service to the government. According
prosecution of cases of this nature, to the accused, the information is
they should not content themselves defective, it does not reconcile all the
with a general averment of habitual elements because it does not state
delinquency but should specify the how old he was. But according to the
dates: prosecutor, “No! I do not have to
1. of the commission of the allege your age. It is for you to prove
previous crimes, that you are below 18 or more than
2. of the last conviction or 35!”
release, and
3. of the other previous ISSUE: Whether or not the clause
convictions or release of in the ordinance pertaining to the age
the accused. “ range of 18 to 35 is part of the crime,
“Informations filed in these cases because if it is part of the crime, then it
should be sufficiently clear and must be alleged.
specific to avoid the improper
imposition of the additional penalty on HELD: The SC ruled that the age
a plea of guilty to a general allegation requirement is an element of the crime
and therefore must be alleged. Failure of the crime.

to allege it is fatal because he may
belong to the exempt age in which
case the prosecution may not prosper. SEC. 10. Place of
commission of the offense.
Let us try to compare that in the case of – The complaint or
U.S. vs. YAO SIM information is sufficient
31 Phil. 301 if it can be understood
from its allegations that
FACTS: The accused was charged the offense was committed
with violation of the opium law. The or some of its essential
opium law was the predecessor, the ingredients occurred at
great grandfather of the Dangerous some place within the
Drugs Act. That was the old law which jurisdiction of the court,
prohibits the use and smoking of unless the particular
opium without the prescription of a place where it was
licensed practicing physician. committed constitutes an
The accused argued that there is essential element of the
no crime committed because the offense charged or is
information did not allege that the necessary for its
accused has no prescription from a identification. (10a)
duly licensed or a practicing physician.
But the prosecution contended that it Q: When you say place, do you have to be
is for the accused to prove that he has very specific as to the place where the crime was
a prescription. The element of the committed? You must describe the kalsada, the
crime is only smoking opium. street?
A: NO. As a matter of fact, if you look at the
HELD: The SC said, the information, it just says, you committed the crime
prosecution is correct. It is not part of in Davao City without even stating what barangay
the crime, it is a matter of defense. or barrio. So, the place of the commission of the
The crime is smoking opium, period! crime maybe stated generally. What is only
But if you say you have prescription, important is it is within the territorial jurisdiction
then you prove it.
EXCEPTION when the place of the
That is sometimes the difficult areas in the commission of the crime constitutes an essential
law. You don’t know whether it is part of a crime element of the crime charged. Yan! You must be
or just a part of your defense. There are things specific. Examples:
that we have to determine. This is part of our
study of Section 9. EXAMPLE: TRESPASS TO DWELLING. You
must specify that the crime was committed by
Q: Like for example, yung ILLEGAL entering into the dwelling of somebody. You
POSSESSION OF FIREARMS. Do you have to cannot just say that he committed it in Davao
allege that the firearm is not licensed? City. You must say na pumasok siya sa bahay na
A: The SC said YES, that is part of the crime. ito. Or
Q: But in DANGEROUS DRUGS ACT, iba EXAMPLE. ROBBERY IN AN INHABITED

man. If you are in possession of opium, marijuana HOUSE, PUBLIC BUILDING OR EDIFICE
or whatever, you are liable if without authority of DEVOTED TO WORSHIP. You must state the
law. Now, who will prove the authority of law? Is particular house. Kailangan specific ka diyan.
that part of the definition of the crime?
A: The SC said NO. It is for you to prove that
you are authorized. The crime is the possession SEC. 11. Date of
or use of marijuana. That you are authorized to commission of the offense.
- It is not necessary to
possess or smoke is a matter of defense.
state in the complaint or
information the precise
Now let’s go to the next section. You must
date the offense was
allege the place of the commission of the crime.
committed except when it
You must also allege the date of the commission
is a material ingredient Section 10, UNLESS the date of the commission

of the offense. The of the crime is an essential element of the crime.
offense may be alleged to Like for example:
have been committed on a
date as near as possible EXAMPLE: VIOLATION OF ELECTION
to the actual date of its CODE, drinking liquor during election day. You
commission. (11a) must be specific kung anong araw yun. Hindi
pwedeng “on or about election day.” Hindi pwede
yan! If you drank liquor before, wala mang crime.
Q: How about yung date? Is it necessary that If you drink liquor after, wala mang crime ba!
it should be very accurate?
A: NO. What is important is that the EXAMPLE. INFANTICIDE. It is committed by
information alleges that the crime was committed killing a child less than 3 days old or less than 72
“on or about” a certain date. hours. If the infant is exactly 3 days old, it is no
longer infanticide. So the information must be
Q: The information said that Judy committed very specific that the child was born on this day,
homicide on January 20. During the trial, on this time and the killing was done on this day,
pinalabas na December 20 pala – one month on this time.
earlier. Is that harmless or fatal?
A: It is still covered by the phrase “on or
about.” A variance of a few months between the SEC. 12. Name of the
time set out in the indictment and that established offended party. – The
by the evidence during the trial has been held not complaint or information
to constitute an error so serious as to warrant must state the name and
reversal of a conviction solely on that score alone. surname of the person
(Rocaberte vs. People, 193 SCRA 192) against whom or against
whose property the offense
But when you say December 2000 and then was committed, or any
the crime pala was committed in 1995, ay sobra appellation or nickname by
na yan! That is too much. Five (5) years is no which such person has been
longer covered by “on or about.” That is already or is known. If there is
violative of Section 11. A variance of several no better way of
years, or the statement of the time of the identifying him, he must
commission of the offense which is so general as be described under a
to span a number of years has been held to be fictitious name.
fatally defective. (Rocaberte vs. People, 193 (a) In offenses against
SCRA 192) property, if the name of
the offended party is
Q: And what is the remedy in that case? unknown, the property must
A: The remedy against an indictment that fails be described with such
to allege the time of the commission of the particularity as to
offense with sufficient definiteness is a motion for properly identify the
a bill of particulars (Rocaberte vs. People, 193 offense charged.
SCRA 192). Do not dismiss the information. That (b) If the true name of
was commented by the SC in the recent case of the person against whom or
People vs. Garcia, November 6, 1997 (281 SCRA against whose property the
463). offense was committed is
thereafter disclosed or
I have to admit that the rules now try to make ascertained, the court
a gap between the date of the commission of the must cause such true name
crime as alleged in the information and the actual to be inserted in the
complaint or information
date of commission to be not so far. You look at
and the record.
Section 11: “xxx The offense maybe allege or
(c) If the offended
committed on a date as near as possible to the
party is a juridical
actual date of its commission.” That phrase “as
person, it is sufficient
near as possible” is not found in the 1985 rules.
to state its name, or any
name or designation by
The ONLY EXCEPTION is just like in the
which it is known or by
which it may be offended party.

identified, without need
of averring that it is a Q: What happens if there was an erroneous
juridical person or that naming of the offended party?
it is organized in A: In the case of
accordance with law. (12a)
Let’s go to the next rule – name of the PEOPLE vs. UBA

offended party. You must allege also who is the 99 Phil 134
victim. We are talking here about the victim – the
private offended party. FACTS: Vidz, on a certain date,
was alleged to have uttered publicly
Q: Why is it that the name of the offended slanderous words against Jessamyn.
party must be alleged in the information? So Jessamyn is the victim of the
A: First, the general rule is that, aside from the slander. Alam niyo during the trial, it
People of the Philippines, there is a private victim. turned out that the victim pala was
Second, so that we will know to whom the court Lyle, not Jessamyn. But everything is
will award the civil liability. the same – the date and place of the
commission, the defamatory words –
Q: Is there a possibility by which the name of pare-pareho! Only, there was an
the offended party is not mentioned in the erroneous designation of the offended
information but the same is still valid? party.
A: YES. Paragraph [a], in a crime against
property. If you do not know who is the victim of ISSUE: Can the court convict Vidz
theft or robbery, it is enough that you describe the for the crime of slander?
property in the information.
HELD: NO. Although the words
EXAMPLE: A thief, nahuli and he was found are the same, the slander against Lyle
in possession of stolen goods and he admitted he is a separate offense. Meaning, you
stole. Kanino? “Ewan ko. Basta gi-snatch ko man are charging a different offense from
lang ito.” Can the police file a case? YES. You the crime proven. You cannot convict
just describe the property in the information even a person of a crime not properly
if we don’t know the owner because you commit charged.
theft when you take personal property belonging “A mistake in putting in the
to another with intent to gain. What is important is information the name of the offended
that, it belongs to another. party is a material matter which
necessarily affects the identification of
the act charged. The case should be
PEOPLE vs. CFI OF QUEZON BR. 5 dismissed for variance between the
allegations of the information and the
209 SCRA 704 proof.”
FACTS: The accused was charged However, there were exceptions in the past
with timber smuggling or illegal cutting like where the accused, who is not a doctor, was
of logs from public forest under PD No. charged of illegal practice of medicine. The
320. Ayan, wala talagang private information stated that the offended party is Paul.
offended party diyan. The only Pag-trial, hindi pala si Paul. Si Inay pala dapat
offended party is the government. But ang victim. The SC said the accused can be
the information does not mention that convicted. Why? The crime is illegal practice of
the offended party is the State. The medicine regardless of whether the victim is Paul
accused challenged the information on or Inay. (Diel vs. Martinez, 76 Phil. 273) Yan! It is
this ground. different from the case of Uba.
HELD: Even if the State is not
mentioned, the information is NOT SEC. 13. Duplicity of
defective. Why? You look at the the offense. – A complaint
caption of the case – “People of the or information must charge
Philippines”. That is actually the only one offense, except
when the law prescribes a are accusing somebody of 2 homicides based on

single punishment for 1 single act. But that is only an exception. There
various offenses. (13a) is one penalty anyway.
The complaint or information must charge EXAMPLE: SPECIAL COMPLEX CRIMES.

only one offense. It cannot charge 2 or more Robbery with homicide or Rape with Homicide.
offenses. If it does, it is called duplicitous That is not duplicitous. There is one penalty there.
complaint or information.
EXAMPLE: DELITO CONTINUADO. The
Q: What is the remedy there? accused stole 2 rooster owned by 2 different
A: Actually, you can file a Motion to Quash people. Actually, there are 2 acts of taking but in
under Section 3 [f], Rule 117. But the defect is the eyes of the law, there is only one crime. The
waivable because if you do not file a Motion to accused was motivated by single criminal
Quash, the trial can proceed and if you are found resolution.
guilty for committing 2 or more crimes, then there
will be 2 or more penalties (Section 4, Rule 120). EXAMPLE: Babang was charged of the crime
Dapat diyan, one information, one crime. That is of REBELLION. Rebellion – she took up arms
the GENERAL RULE. against the government, killed soldiers, burned
government properties. “Duplicitous yan! Kadami-
This seems to go against the rule in civil dami nyan o!” NO. That is not duplicitous because
procedure about joinder of causes of action. In based of the absorption doctrine – the common
one complaint you can join 2 or more causes of crimes are not to be treated as separate crimes
action, although you can also file 2 or more but are already absorbed in the rebellion. The SC
cases. Ano’ng tawag diyan? Joinder of parties or said there is no crime such as rebellion
joinder of causes of action. There is no such thing complexed with murder or homicide. But why do
as joinder of crimes in criminal procedure. you have to recite all these things? That is merely
a recital of the manner of the crime of rebellion.
EXAMPLE: The Patrick got a gun, went out of That is not a violation of Section 13.
the street, then met three people. Binaril niya:
Bang! Bang! Bang! Tatlong tao patay!. Now, he
commits three (3) crimes of homicide.
PEOPLE vs. BUENVIAJE
Q: Can I file one information accusing Patrick
of 3 homicide committed on that day? 47 Phil. 536
A: NO. That is duplicitous. There must three
(3) informations, one for each victim. FACTS: There was a special law
penalizing in once section the crime of
Q: But that is troublesome. The evidence or illegal practice of medicine AND
the witnesses are identical. What is the remedy? illegally advertising oneself as a
A: You file a Motion to Consolidate your trial – doctor. The penalty of 5-year
joint trial for the 3 criminal cases. That is the imprisonment shall be imposed on a
remedy, but not 1 information charging 3 acts of person who, not being a physician,
homicide unless the other party does not question practice medicine or advertise himself
the duplicitous character of the information. as a physician. There is only one
penalty for these acts. The information
EXCEPTION. The rule prohibiting duplicitous alleges: “That the accused is charged
complaints or informations provides for of violating that law because he
exceptions: “Except when the law prescribes a practiced medicine, or IN THE
single punishment for various offenses.” When ALTERNATIVE, he advertised himself
the law provides only one penalty for 2 or more as a doctor when in fact, he is not.”
offenses then Section 13 is not violated.
Examples: ISSUE: Is the information
duplicitous?
EXAMPLE: COMPLEX CRIMES – when a
single act produces 2 or more grave or less HELD: NO. When the information
felonies or when one offense is a necessary merely recites in the alternative or
means to commit another. Actually, parang otherwise the different ways of
duplicitous yun eh kung tingnan mo because you committing the offense like the
information charges the accused for problem. It can be allowed at any stage.
illegal practice of medicine and with Substantial amendment, for as long as there is
illegally advertising himself as a still no responsive pleading, the plaintiff can
physician, there is only one crime amend his complaint anytime. Once a responsive
because these are only alternative pleading is filed, substantial amendment is
ways of committing the crime. allowed but with leave of court.
The rule is different when the accused is In criminal procedure the rule is: for as long as
charged of violating 2 different sections of the the accused has not yet entered his plea – wala
same law with distinct penalties which, if charged pang arraignment, the accused has not yet
in a single information, would render it duplicitous. pleaded guilty or not guilty – the information can
(People vs. Ferrer, 101 Phil. 234) be amended either in substance or in form.
SEC. 14. Amendment or Q: What happens if the accused has already

substitution. – A entered his plea? Can the information still be
complaint or information amended by the prosecution?
may be amended, in form or A: As to FORM – Yes, as a matter of judicial
in substance, without discretion. Kailangan merong permission.
leave of court and when it As to SUBSTANCE – Never! Bawal! 100%
can be done without prohibited.
causing prejudice to the
rights of the accused. Q: How do you determine whether the
However, any amendment amendment is formal or substantial? Sometimes
before plea, which madali, sometimes mahirap. Kung wrong spelling
downgrades the nature of lang, talagang formal yan.
the offense charged in or A: According to the SC based on certain
excludes any accused from cases, the following are considered substantial
the complaint or and therefore cannot be allowed after plea:
information, can be made
only upon motion by the 1. if the amendment changes the manner
prosecutor, with notice to of the commission of the offense;
the offended party and (People vs. Zulueta, 89 Phil. 752)
with leave of court. The
court shall state its 2. if it changes the name of the offended
reasons in resolving the party; (People vs. Uba, 99 Phil. 134)
motion and copies of its
order shall be furnished 3. if it changes the date of the
all parties, especially
commission of the offense; (People vs.
the offended party. (n)
Opemia, 98 Phil. 698)
If it appears at
Let’s say, from the year 2000 to 5
anytime before judgment
years backwards. Hindi pwedeng
that a mistake has been
maging formal yan.
made in charging the
proper offense, the court
4. when the purpose of amendment is to
shall dismiss the original
complaint or information make the information charge an
upon the filing of a new offense when the original information
one charging the proper does not charge an offense; (Wong vs.
offense in accordance with Yatco, 99 Phil. 791) or
section 19, Rule 119,
provided the accused shall 5. when it changes the fact or ground of
not be placed in double responsibility alleged in the original
jeopardy. The court may information. (People vs. Labatete, 57
require the witnesses to O.G. 6783)
give bail for their Example: from accomplice,
appearance at the trial. gagawin kang principal. The same is
(14a) not formal.
In civil procedure, formal amendment – no Q: How do you determine whether the

amendment is as to form or substance? been violated, they being conclusions

A: An amendment which merely states with of law which in no way affect the legal
additional precision something which is already aspects of the information, but from
contained in the original information, and which, the actual recital of facts as alleged in
therefore, adds nothing essential for conviction for the body of the information.”
the crime charged is an amendment to form that “Petitioner in the case at bench
can be made at anytime. (People vs. Montenegro, maintains that, having already pleaded
159 SCRA 236) “not guilty” to the crime of homicide,
the amendment of the crime charged
Q: The amendment is substantial if the in the information from homicide to
amendment will prejudice the rights of the murder is a substantial amendment
accused. How do you determine whether the prejudicial to his right to be informed of
rights of the accused are prejudiced? the nature of the accusation against
A: The test as to when the rights of an him. He utterly fails to dispute,
accused are prejudiced by the amendment of a however, that the original information
complaint or information is when a defense under did allege that petitioner stabbed his
the complaint or information, as it originally stood, victim “using superior strength”. And
would no longer be available after the this particular allegation qualifies a
amendment is made, and when any evidence the killing to murder, regardless of how
accused might have, would be inapplicable to the such a killing is technically designated
complaint or information as amended. (People vs. in the information filed by the public
Montenegro, 159 SCRA 236) Meaning, evidence prosecutor.”
which could help you in the first place will no
longer help you after the amendment – that is Meaning, in the case of Buhat the prosecutor
prejudicial. believes originally that it is homicide, but it is
murder pala all along. We are not adding anything
new.
BUHAT vs. COURT OF APPEALS
265 SCRA 701, December 17, Kaya nga when I read it, I think there’s
1996 something wrong here with this kind of ruling. Just
imagine, na-capital crime ka, tapos formal
FACTS: Danilo Buhat was charged amendment lang? You know my personal view in
with homicide in an information which the case of Buhat, it should be treated only as
alleged that the accused killed the homicide with the aggravating circumstance of
victim using superior strength. [Dapat abuse of superior strength. But that was what the
diyan murder eh because of superior SC said eh. Wala tayong magawa.
strength] Accused Buhat pleaded not
guilty. After that the prosecution However, any amendment
sought to amend the information by before plea, which
upgrading the crime charged from downgrades the nature of
homicide to the more serious crime of the offense charged in or
murder. excludes any accused from
the complaint or
ISSUE: Is the amendment information, can be made
SUBSTANTIAL or FORMAL? only upon motion by the
prosecutor, with notice to
HELD: It is FORMAL because the the offended party and
allegation of superior strength is with leave of court. The
already there. In other words, from the court shall state its
very start, it was really meant to be reasons in resolving the
murder. Mabuti sana kung dinagdag motion and copies of its
lang yung superior strength. It is order shall be furnished
already there all along. all parties, especially
“The real nature of the criminal the offended party.
charge is determined not from the (n)(second paragraph,
caption or preamble of the information Section 14, Rule 110)
nor from the specification of the
provision of the law alleged to have The second paragraph of Section 14 is new.
Take note in the case of Buhat, from homicide to from the crime charged and therefore the
murder. Ito naman, baliktad. Let’s say before accused cannot be convicted for the crime proven
arraignment, sabi ng Fiscal: “Teka muna, di pala because the crime proven is not included in the
murder, homicide lang pala,” So, gi-downgrade crime charged.
ba!
Q: So what should the court do?
Now, if prosecutor will do that, he must notify A: The court should dismiss the complaint or
the offended party, at least the family, so that he information upon the filing of a new information by
can be heard before the trial court allows. So this the prosecution. Provided, the principle of double
time, the amendment is not a matter of right. jeopardy is not applicable.
Again, when you amend a complaint or Remember the case of Uba, where Vidz was
information to downgrade the nature of the charged with oral defamation for uttering
offense or when the amendment is to exclude an slanderous remarks against Jessamyn on a
accused from the complaint or information, of particular date and time. But during the trial, it
course, it can only be done by motion of the turned out that the slander was committed against
prosecutor, notice to the offended party, and Lyle. Now, can Vidz be convicted for the crime of
decree of court. That is a new provision. slander against Lyle, when the information says
the crime was against Jessamyn? NO. Although
If it appears at the crime proven is the same, however the
anytime before judgment erroneous designation of the offended party deals
that a mistake has been with entirely another crime committed against a
made in charging the different person.
proper offense, the court
shall dismiss the original Q: What should the court do in that case?
complaint or information A: Following Section 14, the fiscal should file
upon the filing of a new a new information almost exactly the same as the
one charging the proper old one, now the offended party is Lyle. The court
offense in accordance with will now dismiss the original charge which is
section 19, Rule 119, entirely different.
provided the accused shall
not be placed in double Q: What do you call that?
jeopardy. The court may A: SUBSTITUTION of complaint or
require the witnesses to information.
give bail for their
appearance at the trial. Q: Now, how do you distinguish substitution of
(Last paragraph, Section information from amendment of information?
14, Rule 110) A: The case of
Let’s go to basic. TEEHANKEE JR. vs. MADAYAG
Q: After the trial, the crime proven is different 207 SCRA 134
from the crime charge. However, the former is
included in the latter. Will you dismiss the case? FACTS: This case was about the
A: NO, just convict the accused for the crime murder of Maureen Hultman. She was
proven since the crime proven is included in the shot but did not die immediately. So
crime charged. the crime charged was frustrated
murder. But while the case was
EXAMPLE: Jenny was charged with murder. pending, Hultman died. Therefore, the
After trial, the prosecution proved homicide. What
fiscal filed a new information for
will the court do? Dismiss the complaint for
murder? NO. Jenny should be convicted for consummated murder.
homicide because all the element of homicide are
also included in the crime of murder. (Rule 119) ISSUE: Distinguish amendment of
information from substitution of
However, that is not what Section 14 information? [This would be clearer
contemplates. What is contemplated by Section when we reach Rule 112 on
14 is, the offense proven is completely different Preliminary Investigation]
HELD: The first paragraph included in the original charge,

provides the rules for amendment of hence the accused cannot
the information or complaint, while the claim double jeopardy.
second paragraph refers to the
substitution of the information or In amendment, you are not changing the
complaint. crime. The crime is the same. Therefore, after the
It may accordingly be posited that accused has pleaded, you cannot change the
both amendment and substitution of information anymore. That is why substantial
the information may be made before or amendments can never be allowed after the plea.
after the defendant pleads, but they If this rule is violated, he will be placed in double
differ in the following respects: jeopardy because you are charging him for the
same offense or an offense necessarily included
1. AMENDMENT may involve in the original charge.
either formal or substantial
changes, while On the other hand, substitution presupposes
SUBSTITUTION necessarily that the new information or complaint involves a
involves a substantial change different offense which is not necessarily included
from the original charge; in the in the original charge. Therefore, the
accused cannot claim double jeopardy. How can
2. AMENDMENT before plea has you invoke double jeopardy in substitution when
been entered can be effected the new charge is completely different from the
without leave of court, but original charge?
SUBSTITUTION of information
must be with leave of court as I remember this was a 1992 decision. During
the original information has to the 1994 Bar exams, this was one of the
be dismissed; questions that entered into my mind. Nahulaan ko
na lalabas ito eh. (ehem!): distinguish amendment
3. Where the AMENDMENT is from substitution. Just remember the case of
only as to form, there is no Teehankee Jr. vs. Madayag. I think that question
need for another preliminary was only 3 points. Alright.
investigation and the retaking
of the plea of the accused; in
SUBSTITUTION of information, SEC. 15. Place where
another preliminary action is to be
investigation is entailed and the instituted. (a) Subject to
accused has to plead anew to existing laws, the
the new information; and criminal action shall be
instituted and tried in
4. An AMENDED information the court of the
refers to the same offense municipality or territory
charged in the original where the offense was
information or to an offense committed or where any of
which necessarily includes or is its essential ingredients
necessarily included in the occurred.
original charge, hence (b) Where an offense is
substantial amendments to the committed in a train,
information after the plea has aircraft, or other public
been taken cannot be made or private vehicle in the
over the objection of the course of its trip, the
accused, for if the original criminal action shall be
information would be instituted and tried int
withdrawn, the accused could, eh court of any
invoke double jeopardy. On the municipality or territory
other hand, SUBSTITUTION where such train,
requires or presupposes that aircraft, or other vehicle
passed during its trip,
the new information involves a
including the place of its
different offense which does
departure and arrival.
not include or is not necessarily
(c) Where an offense is necessary to prosecute and punish the

committed on board a criminal in the very place, as near as
vessel in the course of may be where he committed his crime
its voyage, the criminal (MRR Co. vs. Atty. General, 20 Phil.
action shall be instituted 523);
and tried in the court of
the first port of entry or 2. As to the interest of the accused, it
of any municipality or would cause him great inconvenience
territory where the vessel in looking for witnesses and other
passed during such voyage, evidence in another place. (Beltran vs.
subject to the generally Ramos, 96 Phil. 149)
accepted principles of
international law.
(d) Crimes committed The law says, the criminal case will be tried,
outside the Philippines where?
but punishable under 1. where the offense was committed; or
Article 2 of the Revised 2. where any of the essential ingredients
Penal Code shall be occurred.
cognizable by the court
where the criminal action
is first filed. (15a)
WHERE THE OFFENSE WAS COMMITTED
In civil case we call this venue. In criminal
procedure, venue is also jurisdiction. It refers to This refers to what you call local offense.
territorial jurisdiction. So if you file a criminal case What do you mean by a local offense? It is an
in the wrong place, the accused could question offense, which is fully consummated in one place.
the jurisdiction of the court over the offense. This Meaning, all the elements of the crime happened
is one difference between civil and criminal in that place.
procedure.
WHERE ANY OF THE ESSENTIAL
(a) Subject to existing INGREDIENTS OCCURRED
laws, the criminal action
shall be instituted and This refers to what text writers call the
tried in the court of the continuing offense – where the elements occurred
municipality or territory in 2 or more places – one element occurs here,
where the offense was the other in another place. So either one can try
committed or where any of the case. The venue in this case is the choice of
its essential ingredients the prosecution.
occurred. (Section 15,
Rule 110) And mind you, the word “continuing offense”
should not be confused with the concept in
The word municipality here includes cities criminal law – the so-called continuous crime
because it could be a city. Municipality definitely under Article 48 also known as “delicto
refers to a crime triable by the MTC. The word continuado.” Dalawang klaseng continuing crime,
territory refers to a crime triable by the RTC eh. One of the relatives of complex crime is
because of the provision of Section 18, BP 129 “delicto continuado” – where a person performs a
that every RTC has its own territory over which it series of acts but all emanating from one criminal
resides, for purposes of venue in civil cases and resolution – but the issue to be resolved is: how
jurisdiction in criminal cases where the offense many crimes were committed by the accused?
was committed or where any of the essential Yun ang tanong dun.
ingredients occurred.
Ito namang “continuing offense”, the question
Q: Why does the law prescribes that the case here is: in which court of what place will the crime
be filed or tried in the place where the crime was be tried? Yan!
committed?
A: The following are the reasons: Q: How do you define a continuing offense or
1. The interest of the public requires that, transitory crime?
to secure the best results and effects A: It is a crime where the elements occur in
in the punishment of crimes, it is
several places. inconsequential.

It may not be suggested, for instance, that, in
EXAMPLE: KIDNAPPING or ABDUCTION. the crime of bigamy which presupposes a prior
The accused kidnapped Eltor in Davao City and subsisting marriage of an accused, the case
brought the Eltor in Cotabato and hidden there. should thereby be triable likewise at the place
Same thing with abduction: Karen was abducted where the prior marriage has been contracted.
in Davao City and brought in Cotabato. (People vs. De Guzman, October 5, 1993)
Q: Where should the case of kidnapping or Q: ESTAFA or MALVERSATION. The

abduction as the case may be, be filed? company’s head office is in Makati. Kenneth is
A: It could be filed in Davao where the victim the representative of the company assigned in
was taken or abducted, or in Cotabato were the Davao. He collects payments from customers in
victim was brought. Davao and he is supposed to remit all his
collections to Makati. Kenneth did not remit his
Q: Brod Pito took your vehicle here in Davao collections to Makati. Where should the case of
and brought it to Cotabato. Where should the estafa be brought? Davao or Makati?
crime of qualified theft be tried? Davao or A: Either of the two. The crime is continuing. It
Cotabato? Is that a continuing offense or not? shall be instituted in the place where the
A: Davao. It is a local offense. From the misappropriation was committed OR in the place
moment the car was taken in Davao, the crime where the accused was to render his accounting.
has already been consummated. It is not an (U.S. vs. Mesina, 42 Phil. 67)
indispensable requisite of theft that the thief carry,
more or less far away, the thing taken by him Let’s go to BOUNCING CHECKS law. Where
from its owner. (Duran vs. Tan, 85 Phil. 476) should the criminal case for violation of bouncing
Theft is committed by taking personal things. checks law be filed? Sometimes, fiscals get
Taking is instant. From the moment it came to y confused. You owe me, you are in Manila, then
our possession, tapos na! you issue a check in Manila and sent it to Davao.
Then I will deposit the check in Davao. Of course
Let’s go to the issue of FENCING – you buy the bank will forward it to Manila for clearance.
stolen property. If you have known it is stolen, you The Manila bank dishonored it kay walang
are liable. But take note: there can be no fencing pondo. Where is the venue for such crime? That
if there is no robbery or theft. Fencing is what happened in the case of
presupposes there is robbery or theft.
Q: Inday stole a property in Digos. It was PEOPLE vs. GOROSPE

brought here and Maritess bought it here in
Davao. Maritess is now charged with fencing. Of January 20, 1988
course Maritess can be charged here in Davao
(reiterated in Lee vs. CA [1995])
City because she bought it here. But can the
crime of fencing be also filed in Digos where the
FACTS: The accused is from
theft was committed on the theory that: how can
there be fencing unless there was theft? Bulacan. He was a dealer of San
Therefore everything can go back to the place Miguel products and he is under the
control of the Central Luzon Regional
where the original crime was committed. Is that
correct? Office of San Miguel Corporation
A: It is NOT correct because fencing is not a (SMC) which is in San Fernando,
Pampanga. So a representative of
continuing crime. It is a local offense. It is different
from the crime of theft or robbery. Both crimes are SMC went to Bulucan, collected from
two different crime. The law on fencing does not him, he issued checks which were
drawn in Bulucan. The checks were
require the accused to have participated in the
criminal design to commit, or to have been in any received by the representative of SMC
wise involved in the commission of, the crime of and went to the Head Office in
robbery or theft. Neither is the crime of robbery or Pampanga and turned-over it. The
theft made to depend on an act of fencing in order Pampanga office of SMC deposited
that it can be consummated. True, the object the checks with its depositary bank in
San Fernando, Pampanga. The
property in fencing must have been previously
taken by means of either robbery of theft but the checks were sent to Bulacan for
clearing. Talbog! With this, series of
place where the robbery or theft occurs is
cases were filed. Some cases were
estafa. Some were for violation of BP Q: Genie executed a false affidavit in Manila.
22. It was sent to Davao to be used in a certain
The accused challenged it proceeding or case. Where is the venue of the
because all these cases were filed in PERJURY?
San Fernando, Pampanga eh. A: It should be filed in the place where the
According to him, the cases should be false evidence was submitted and NOT in the
filed in Bulacan. Remember, the place where the false affidavit was subscribed
checks were Bulucan checks and it and sworn to. (U.S. vs. Cañete, 30 Phil. 371)
was dishonored also in Bulacan. He
said, “I did not deliver it in San Let’s go to some EXCEPTIONS:
Fernando. I gave it to your
representative. So the check was Q: Are there instances where the crime is
delivered to a representative. So the committed in this place but the trial can be filed in
delivery was made in Bulacan. Thus another place, other than the place where the
the Pampanga court has no crime was committed?
jurisdiction.” A: YES, if the law says so because of the
opening clause of paragraph (a) of Section 15
ISSUE: Is the contention of the which says, “subject to existing laws.” Meaning,
accused correct? this is the applicable rule unless other existing law
says otherwise.
HELD: NO! Mali! Actually, the
crime is continuing because the crime Q: Give instances where the crime maybe
continues up to the delivery of the committed in one place but the law provided for a
check to the Central Luzon Office of different venue of trial.
SMC in Pampanga. Under the A: The following:
Negotiable Instruments Law, the 1. Libel – under Article 360 of RPC, it is
delivery of the check must be made to to be filed where the libelous matter
a person who takes it as a holder or was printed or first published, or where
bearer of the instrument. The checks the injured party resides or where he
are intended to be delivered in the holds office;
Head Office because it is the delivery
in Pampanga which makes the payee 2. Sandiganbayan Law – cases falling
the bearer or the holder – not the under the jurisdiction of the
employer who went to Bulacan. So Sandiganbayan are tried in designated
tinamaan ang Pampanga court. In places;
effect, it is a continuing crime.
In respect of the Bouncing Checks 3. Section 5 (4), Article VIII, 1987
case, “it is likewise true that Constitution – The SC may order a
knowledge on the part of the maker or change of venue or place of trial to
drawer of the check of the insufficiency avoid a miscarriage of justice as what
of his funds, which is an essential happened in the case of Sanchez and
ingredient of the offense is by itself a Misuari.
continuing eventuality, whether the
accused be within one territory or Those are the exceptions. All the rest covers
another. Accordingly, jurisdiction to other cases Paragraph (d) refers to crimes
take cognizance of the offense also committed on board a Philippine ship or airplane
lies in the Regional Trial Court of abroad. It is triable in the Philippines. Where in
Pampanga.” Meaning, wherever the the Philippines? – where the criminal action is first
checks go, the knowledge of filed. Kung saan, mamili ang prosecution kung
insufficiency is a continuing element. saan i-file.
Q: Where shall the criminal action for SEC. 16. Intervention

FALSIFICATION of a private document be filed? of the offended party in
A: It shall be filed in the place where the criminal action. – Where
document was falsified, regardless of whether it the civil action for
was or was not put to the illegal use for which it recovery of civil
was intended. (U.S. vs. Barretto, 36 Phil. 204) liability is instituted in
the criminal action
pursuant to Rule 111, the 156 SCRA 325

offended party may
intervene by counsel in FACTS: This is a case for violation
the prosecution of the of BP 22. The offended party hired a
offense. (16a) private prosecutor to prosecute the
case. The accused challenged the
Of course, the prosecution is under the control appearance of the private prosecutor
of the fiscal but the law says, the private offended on the ground that BP 22 does not
party can intervene through counsel. That is what provide for any civil liability and
you call the appearance of the private prosecutor. therefore there is no civil liability.
So the trial court disqualified the
Q: When is it allowed? private prosecutor. The offended party
A: The following are the requirements: went to the SC.
1. if there is civil liability arising from the
crime because the purpose of the ISSUE: Is a private prosecutor
private prosecutor is to protect the civil allowed to intervene in a BP 22 case?
liability of the offended party;
2. there is no waiver. The offended party HELD: YES. A private prosecutor
should not waive the civil liability; is allowed to intervene in a BP 22 case
3. the offended party should not have because there is a civil liability in BP
reserved to file a separate civil action 22 even if the law silent about it.
because once you have made a Normally lawyers would say that
reservation, wala na. You cannot civil liability in a criminal case arises
anymore hire a private prosecutor; from the crime; because of the crime,
4. the civil action has not been previously there is civil liability. According to the
instituted because if the civil action is SC: WRONG!! It is not the crime which
already filed, you cannot intervene in is the source of the civil liability. It is
the criminal case. the damage that the accused caused
to the victim!
Q: What are the rights of the offended party in “The generally accepted notion
a criminal action? that the civil liability actually arises
A: The following: from the crime a misconception or
1. to take part in the prosecution of the fallacy. [Masyadong malalim ang
offense; discussion ng SC dito] “While an act or
2. to recover civil liability from the omission is felonious because it is
accused arising from the crime; and punishable by law, it gives rise to civil
3. to appeal from any judgment or order liability not so much because it is a
adversely affecting his claim to such crime but because it caused damage
civil liability. (People vs. Velez, 77 Phil. to another. Viewing things
1026) pragmatically, we can readily see that
what gives rise to the civil liability is
Q: Give the limitations to the offended party’s really the obligation and the moral duty
right of intervention in a criminal action. of everyone to repair or make whole
A: The following: the damage caused to another by
reason of his own act or omission,
1. such intervention shall be under the done intentionally or negligently,
direction and control of the fiscal whether or not the same be
(Section 5); punishable by law. In other words,
2. such intervention shall only be for the criminal liability will give rise to civil
purpose of enforcing the accused’s liability only if the same felonious act
civil liability arising from the crime. or omission results in damage or injury
(People vs. Velez, supra) to another and is the direct and
proximate cause thereof. Damage or
One of the interesting case decided based on injury to another is evidently the
Section 16 is the 1987 case of foundation of the civil action. Such is
not the case in criminal actions for, to
BANAL vs. TADEO, JR. be criminally liable, it is enough that
the act or omission complained of is
punishable, regardless of whether or

not it also causes material damage to
another. Article 20 of the New Civil SECTION 1. Institution
Code provides: of criminal and civil
“Every person who, actions. – (a) When a
contrary to law, willfully criminal action is
or negligently causes instituted, the civil
damage to another, action for the recovery of
shall indemnify the civil liability arising
latter for the same.” from the offense charged
“Regardless, therefore, of whether shall be deemed instituted
or not a special law so provides, with the criminal action
indemnification of the offended party unless the offended party
may be had on account of the waives the civil action,
damage, loss or injury directly suffered reserves the right to
as a consequence of the wrongful act institute it separately or
of another. The indemnity which a institutes the civil
person is sentenced to pay forms an action prior to the
integral part of the penalty imposed by criminal action.
law for the commission of a crime. The reservation of the
Every crime gives rise to a penal or right to institute
criminal action for the punishment of separately the civil
the guilty party, and also to civil action action shall be made
for the restitution of the thing, repair of before the prosecution
the damage, and indemnification for starts presenting its
the losses.” evidence and under
circumstances affording
The ruling in Banal seems not to jive with the offended party a
Article 1157 of the New Civil Code. Under Article reasonable opportunity to
1157, the following are the sources of obligations: make such reservation.
1. laws; When the offended party
2. contracts; seeks to enforce civil
3. quasi-contracts; liability against the
4. quasi-delicts; accused by way of moral,
5. acts or omissions punishable by law. nominal, temperate, or
exemplary damages without
According to Article 1157, a crime punishable specifying the amount
thereof in the complaint
by law is a source of obligation. But in the case of
or information, the filing
Banal, the SC says NO, it is not the act or
fees therefore shall
omission but the damage or injury resulting from
constitute a first lien on
such act or omission. That is how to reconcile
the judgment awarding such
these two ideas.
damages.
Where the amount of
Q: We will go back to the issue in Banal – is
damages, other than
there civil liability in BP 22 cases? actual, is specified in
A: YES because the offended party cannot the complaint or
get back his money. If there is damage, there is information, the
civil liability even if the law is silent. Huwag mo na corresponding filing fees
lang hanapin ang provision ng civil liability. For as shall be paid by the
long as there is damage, there is civil liability. offended party upon the
Yaaann! filing thereof in court.
Except as otherwise
provided in these Rules,
no filing fees shall be
required for actual
damages.
Rule 111
No counterclaim, cross-
PROSECUTION OF CIVIL CASES
claim or third-party
complaint may be filed by

the accused in the We will now go to Rule 111. This rule has
criminal case, but any been subjected to many amendments although
cause of action which the amendments may not be very radical. As a
could have been the
matter of fact, they only incorporate
subject thereof may be
litigated in a separate jurisprudence or principles laid down in decided
civil action. (1a) cases. The main principle is: when a criminal action
(b) The criminal action is filed, the civil action of the recovery of the civil
for violation of Batas liability arising from the offense charged is
Pambansa Blg. 22 shall be deemed instituted with the criminal action.
deemed to include the
corresponding civil What is the basis for that principle? The basis
action. No reservation to is Article 100 of the RPC, “Every person
file such civil action criminally liable is also civilly liable.” When you
separately shall be
say deemed instituted, it does not only cover the
allowed.
Upon filing of the civil liability of the accused himself but also the
aforesaid joint criminal probable subsidiary civil liability of the employer
and civil actions, the under Article 103. You already knew of that rule
offended party shall pay that when an employee-accused is adjudged
in full the filing fees criminally liable and is insolvent, the employer of
based on the amount of the that accused who committed the crime while he
check involved, which was in the discharge of his duties will be the one
shall be considered as the to answer the civil liability. That is why the SC
actual damages claimed. said that whether he likes it or not, he is covered.
Where the complaint or It is advisable for the employer in that situation to
information also seeks to
help his employee in the criminal case because he
recover liquidated, moral,
nominal, temperate or will also be prejudiced if his employee will be
exemplary damages, the convicted. To borrow the language of the SC,
offended party shall pay whether he likes it or not, he is a forced intervenor
additional filing fees in the criminal case filed against his employee.
based on the amounts
alleged therein. If the Q: When is a civil action arising from a crime
amounts are not so alleged NOT deemed instituted with the criminal action?
but any of these damages A: The civil action is NOT deemed instituted
are subsequently awarded with the criminal action:
by the court, the filing
1. when the offended party has waived
fees based on the amount
awarded shall constitute a the civil aspect of the case;
first lien on the 2. when the offended party has reserved
judgment. his right to file a separate civil action;
Where the civil action or
has been filed separately 3. when the civil action was filed or
and trial thereof has not instituted ahead of the criminal action.
yet commenced, it may be 4. when the crime is one to which no
consolidated with the civil liability attaches. (People vs.
criminal action upon Maceda, 73 Phil. 679)
application with the court
5. when the civil action was filed in court
trying the latter case. If
the application is before the presentation of the evidence
granted, the trial of both for the prosecution in the criminal
actions shall proceed in action of which the judge presiding on
accordance with section 2 the criminal cases was duly informed.
of this Rule governing (Yakult Phils. vs. CA, 190 SCRA 357);
consolidation of the civil
and criminal actions. According to the second paragraph, the
(cir. 57-97) reservation must be made before the prosecution
starts presenting its evidence and under The only difference is: if the information
circumstances affording the offended party mentions the claim of the civil liability, the
reasonable opportunity. Before the trial, offended party is required to pay the docket fee
kailangan mag-reserve na siya. Otherwise the provided the docket fee is only for any claims for
court will consider the civil aspect deemed moral, exemplary and nominal damages. There is no
instituted. docket fee for actual damages.
Q: Suppose there was no mention of any

YAKULT PHILS. vs. COURT OF APPEALS claim for moral or exemplary damages, can he
190 SCRA 357 (1990) still prove them during the trial? YES. But he did
not pay docket fee?
FACTS: In a criminal case, the A: Never mind, once it is awarded, there is
offended party did not make a now a lien in the judgment for the payment of the
reservation but there is still no trial. docket fee.
However, without making a
reservation, the offended party filed a So there is difference in the rule in docket fee
civil action. After such filing, the in civil and criminal cases. Remember the case of
offended party told the court trying Sun Insurance in civil procedure? If the docket fee
the criminal case, that he has already was not mentioned in the complaint in the civil
filed a separate civil case so that the case they are deemed waived. You must pay the
court will not include anymore the docket fee at the start of the case though if it is
civil aspect. not mentioned, you are given the chance to
complete the payment or amend the complaint
ISSUE: Is there a proper filing of within reasonable time. In criminal cases, even if
the civil action without making a there is no mention of damages in the
reservation? Was the civil action filed information, you can still prove and claim them
ahead of the criminal case? as long as there is no waiver or reservation.
HELD: NO. However, there is no So in criminal cases, if the claim for moral or
question that after filing the civil case exemplary damages is mentioned in the
he told the court that he already filed a information, you must pay the docket fee upon
separate civil action and that is even a filing of the information. But whether alleged in
better reservation. In effect, there was the information or not, you can claim for actual
an automatic reservation although damages and there is no docket fee for actual
normally, reservation is done before damages except in cases under BP 22. That is the
the filing of the criminal case. Ito exception which is now embodied in Section 1
naman, filing before he informed the paragraph [b] which was take from SC circular
court. 57-97 – there is no payment of docket fee for
actual damages except in criminal cases for
violation of BP 22 because paragraph [b] says:
Q: Has the offended party the right to claim
and prove damages in the criminal action where Upon filing of the
the complaint or information is silent as to such aforesaid joint criminal
claim? and civil actions, the
A: Every person criminally liable is also civilly offended party shall pay
liable. Therefore, even if the complaint or in full the filing fees
information is silent as to damages, the offended based on the amount of the
party has the right to claim and prove them in the check involved, which
shall be considered as the
criminal case, unless a waiver or a reservation of
actual damages claimed.
the civil action is made. (People vs. Rodriguez,
July 29, 1959; Roa vs. dela Cruz, Feb. 13, 1960)
Now, take note of the ruling in the case of
Cabaero vs. Cantos mentioned in civil procedure
So it is possible for the information to recite
the claim for civil liability or hindi na kailangan.
which is now incorporated in the last paragraph party in the criminal case
of Section 1, paragraph [a]: and of the parties to
present additional
No counterclaim, cross- evidence. The consolidated
claim or third-party criminal and civil actions
complaint may be filed by shall be tried and decided
the accused in the jointly.
criminal case, but any During the pendency of
cause of action which the criminal action, the
could have been the running period of
subject thereof may be prescription of the civil
litigated in a separate action which cannot be
civil action. instituted separately or
whose proceeding has been
suspended shall be tolled.
That’s the Cabaero case which reversed Javier
(n)
vs. IAC, (171 SCRA 376) and Shaffer vs. RTC, (167 The extinction of the
SCRA 376). penal action does not
carry with it extinction
SEC. 2. When separate of the civil action.
civil action is suspended. However, the civil action
– After the criminal based on delict shall be
action has been commenced, deemed extinguished if
the separate civil action there is a finding in a
arising therefrom cannot final judgment in the
be instituted until final criminal action that the
judgment has been entered act or omission from which
in the criminal action. the civil liability may
If the criminal action arise did not exist. (2a)
is filed after the said
civil action has already
been instituted, the
Let’s go to Section 2. Suppose the offended
latter shall be suspended
in whatever state it may party made a reservation to institute a civil action
be found before judgment and a criminal case is filed, he cannot file the civil
on the merits. The action – that’s the rule. He must wait for the
suspension shall last outcome of the criminal case. The criminal case
until final judgment is enjoys priority.
rendered in the criminal
action. Nevertheless, The reason here is that there might be an
before judgment on the embarrassment in the administration of justice.
merits rendered in the You allowed the filing of the civil and criminal
civil action, the same cases together. Same evidence, same incident. In
may, upon motion of the
the criminal case, the accused was convicted but
offended party, be
consolidated with the in the civil case the claim for damages was
criminal action in the dismissed because the offended party failed to
court trying the criminal proved his claim by preponderance of evidence.
action. In case of That is something absurd!
consolidation, the
evidence already adduced So the best thing is unahin muna ang criminal
in the civil action shall case because anyway if there is an acquittal in the
be deemed automatically criminal case, you can still recover in the civil
reproduced in the criminal case because it is only a preponderance of
action without prejudice
evidence, or the accused may be acquitted by
to the right of the
prosecution to cross- reason of an exempting circumstance and yet it
examine the witness does not exempt him from civil liability in
presented by the offended another civil action.
running period of
Take note that what is suspended is the civil prescription of the civil
action arising from the criminal act. (opening action which cannot be
paragraph of Section 2; Article 1157, New Civil instituted separately or
whose proceeding has been
Code)
suspended shall be tolled.
(n)
Q: What happens if na-una na-file yung civil
action? Ayun! The running of the prescriptive period
A: According to Section 2, from the moment shall be suspended. This was the doctrine in the
the criminal case is filed, the trial of the civil case case of People vs. Bayotas.
is suspended to wait for the outcome of the
criminal case. There is something new in the 2nd paragraph
about consolidation. When the civil case is filed
Q: Is this prejudicial to the offended party? ahead, the filing of the criminal case will suspend
A: There is a way out according to Section 2. the civil unless there is a petition to consolidate in
The first thing for him to do is to file a petition to which case the evidence presented in the civil
consolidate the trial of the criminal and civil case case is automatically considered reproduced in
for them to be tried together and the evidence the criminal case. Now read this part, third
already presented in the civil case is deemed paragraph of Section 2:
automatically reproduced in the criminal case.
This is what you call the consolidation of the civil “x x x In case of
and criminal action under Section 2. consolidation, the
evidence already adduced
Q: Is this consolidation mandatory? in the civil action shall
A: NO. It is permissive. Actually, the offended be deemed automatically
party is the one to initiate this because if not, then reproduced in the criminal
he has to wait for the criminal case to be action without prejudice
terminated before he can file the civil case. to the right of the
prosecution to cross-
examine the witness
Q: What are the instances when the offended presented by the offended
party is not allowed to make a reservation party in the criminal case
therefore requires a mandatory consolidation? and of the parties to
A: The following are the instances: present additional
evidence. x x x”
1. Violations of BP 22. (Paragraph b,
Section 1, Rule 111); What is new here is the phrase “without
2. Libel – under Article 360, RPC; prejudice to the right of the prosecution to cross-
3. Mandatory consolidation under the examine the witnesses presented by the offended party
Sandiganbayan law. For example, a in the criminal case…” I was wondering, there is
criminal case is supposed to be tried something wrong here. I believe there is a
by the SB and then you file a civil case typographical error here. Di ba the witnesses of
before the ordinary courts. What will the offended party in the civil case are also the
happen now to the civil case? The law witnesses of the prosecution in the criminal case?
says there must be a mandatory I was wondering why will the fiscal cross-
consolidation of both cases in the SB. examine his witnesses? I think the phrase really
means “the witnesses presented by the accused”.
Q: What happens if the filing of the civil
action will have to wait for the outcome of the Let’s go to some decided cases.
criminal case, baka nag-prescribed na yung civil
action? CAÑOS vs. PERALTA
A: Read 3rd paragraph of Section 2: 115 SCRA 843
During the pendency of FACTS: The case of Caños was

the criminal action, the decided before the 1985 Rules. Here,
there was reservation. There were two HELD: NO. They cannot be
(2) cases arising out of the same consolidated under Rule 111 because
incident. At that time, there was still what can be consolidated is a criminal
no specific rule on consolidation. case together with a civil case for
Judge Peralta ordered the damages from the crime committed. In
consolidation of the criminal and civil other words, damages “ex delicto.” But
cases and that was questioned. here, the criminal case was filed
against the officers of the corporation
ISSUE: Was the consolidation for damages and a civil case for
proper? If so, how do you reconcile specific performance was also filed
these cases because the degree of proof against the same officers. That civil
in the criminal case is not the same in case arose from a contract, i.e. “ex
the civil case? contractu.” [So if the civil case arose
from a contract, it cannot be
HELD: The consolidation was consolidated with the criminal case
proper under Rule 31 because there is under Rule 111.]
a common question of fact and law. But because it cannot be denied
They can be consolidated but for that it would be better if we try them
purposes of decision, the court will together because we are talking of the
now apply two (2) different criteria: same incident – failure to deliver the
Proof beyond reasonable doubt in the title – why not consolidate the two
criminal case and preponderance of cases under Rule 31, citing the case of
evidence in the civil case. So there is Caños vs. Peralta. In that case, the only
no incompatibility. ground was there was a common
question of fact and law so they
Now, here comes the 1985 Rules on should be consolidated under Rule 31
consolidation and one of the first cases which and NOT Rule 111.
reached the SC involving the new Rules was the
case of Naguiat.
The extinction of the
penal action does not
NAGUIAT vs. IAC carry with it extinction
164 SCRA 505 of the civil action.
However, the civil action
FACTS: Naguiat filed a case based on delict shall be
against a subdivision development deemed extinguished if
there is a finding in a
corporation where he bought a lot in
final judgment in the
installment basis. Under the criminal action that the
subdivision law kapag bayad na, you act or omission from which
issue the title. But according to the civil liability may
Naguiat, bayad na pero hindi binigay arise did not exist. (2a)
yung title. So he filed a case for (Last paragraph, Section
specific performance with damages 2, Rule 111)
against the subdivision and he also
filed a criminal case against the Yan! If the accused is acquitted, it will not bar
president of the corporation for failure the offended party from filing a civil action
to deliver to him the title of the land because the extinction of the penal action does
under PD 957. Now, he filed a motion not carry with it the extinction of the civil action
to consolidate under Rule 111. because for all you know in the civil case the
accused may be found liable.
ISSUE: Is the motion to
consolidate proper? It is now emphasized in the new rules
“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 case. He does not know how the public
omission from which the civil liability may arise did prosecutor handled the case, baka ang testigo
not exist.” This means that if the accused is kulang kaya na-acquit. So paano ako (offended
acquitted based on reasonable doubt, there could party)? I will file my own civil case and maybe I
still be civil liability arising from the crime or will use quasi-delict as the basis and no longer
when the accused is acquitted based on an the delict.
exempting circumstance. But when the accused is
acquitted on the ground that the act or omission These are the complicated portion of this rule.
from which the civil liability may arise did not As a matter of fact, there are queer cases decided
exist, that is the end of the civil liability arising by the SC even before the new rules like the 1987
from a crime. case of
Q: However, if I file an action based on quasi- RUFO MAURICIO

delict, can it prosper? CONSTRUCTION vs. IAC
A: YES, because it is now established that the November 27, 1987
action based on delict is extinguished but not on
quasi-delict, a contract, or other sources of FACTS: A driver of the
obligation. This is the ruling in the case of Bayotas construction company collided with a
in criminal law – that, for example, once the car, killing the owner. What was filed
accused dies, the civil liability arising from crime was a criminal case against the driver.
is already extinguished but you can still file a case No reservation was made. Therefore
against the estate of the deceased accused provided the civil liability arising from the crime
you can find another source of the obligation. is already instituted. The driver was
This ruling was emphasized in the 1998 case of convicted. On appeal, the driver died.
ISSUE: What will happen to the

SALAO vs. COURT OF APPEALS civil liability arising from the crime?
284 SCRA 493, January 22, 1998 Can you enforce it against the
employer based on Article 103, RPC
HELD: The civil liability referred on subsidiary liability?
to in this Rule is the civil liability
arising from crime (ex delicto). It is not HELD: NO, because there was no
the civil liability for quasi-delict which judgment of conviction which became
is allowed to be brought “separately final. There must be a judgment of
and independently” of the criminal conviction against the employee; it
action by Art. 33 of the Civil Code. The must be final; he must be proven
civil liability based on such cause of insolvent. But the trouble is he died.
action is not extinguished even by a So you cannot enforce the subsidiary
declaration in the criminal case that liability of the employer.
the criminal act charged has not However, if this was quasi-delict,
happened or has not been committed you can file a direct action against he
by the accused. Indeed, because the employer because in quasi-delict, the
offended party does not intervene in liability of the employer is primary,
the criminal prosecution, it is entirely not subsidiary. The SC treated the case
possible that all the witnesses as an action for quasi-delict against the
presented in the civil action may not employer but that is unfair for the
have been presented by the public employer because he never
prosecutor in the criminal action with participated in the trial of the civil
the result that the accused in the case. According to the SC, we will put
criminal case may be acquitted. it back and now you will cross-
examine them (Dean I: Ano’ng klaseng
procedure ito?!). This is what the SC
So remember ha, in the case of Salao the said:
offended party has no intervention in the criminal
“The death of the accused during act or omission charged in

the pendency of his appeal or before the criminal action. (3a)
the judgment of conviction became
final and executory extinguished his Let’s go back to basic rules.
criminal liability but not his civil
liability should the liability or Q: Which takes precedence when there is
obligation arise not from a crime but reservation, the criminal or the civil action?
from a quasi-delict. The liability of the A: The criminal action takes precedence. The
employer here would not be filing of the criminal suspends the filing of the
subsidiary but solidary with his driver civil action. If the civil action is filed, the civil
unless said employer can prove there action is deemed suspended unless there would
was no negligence on his part at all, be consolidation.
that is, if he can prove due diligence in
the selection and supervision of his Now, the rule about the filing of the criminal
driver.” action will suspend the filing of the civil action,
“Inasmuch as the employer was and the rule about the subsequent filing of the
not a party in the criminal case, and to criminal action will suspend the trial of the civil
grant him his day in court for the case, however, DOES NOT apply if the civil
purpose of cross-examining the action is classified as an independent civil action
prosecution witnesses on their under Section 3. This is another important
testimonies on the driver's alleged provision.
negligence and the amount of
damages to which the heirs of the Q: What are the independent civil actions
victim are entitled, as well as to under the law?
introduce any evidence or witnesses A: They are those covered by Articles 32, 33,
he may care to present in his defense, 34, and 2176 of the New Civil Code.
the hearing on the motion to quash the
subsidiary writ of execution must be Take note that you have to know what is
reopened precisely for the purpose Article 32, 33, 34, 2176. It is not enough that you
adverted to hereinabove.” memorize the articles. What is Article 32 all
about? What kind of civil action is referred
This is the only instance I knew that the thereto? Or what is the civil action referred to in
criminal case against a driver ended up as a case Article 34? I think nandito yung when the civil
for quasi-delict against the employer. In other action is based on a violation of a constitutional
words, sh-in-ort-cut-short-cut ng SC yung right. Article 33 is the most famous… when the
procedure eh! civil action is defamation, fraud and physical
injuries.
SEC. 3. When civil Here (Section 3), the criminal action and the
action may proceed civil action can be filed simultaneously and the
independently. – In the trial of the two cases can go on separately and
cases provided in Articles independently of the other without regard to the
32, 33, 34 and 2176 of the latter. Unlike when the civil action is not
Civil Code of the classified as independent, where it is governed by
Philippines, the
Section 2, it will be suspended in the meantime.
independent civil action
may be brought by the That is the important point to remember in this
offended party. It shall rule.
proceed independently of
the criminal action and
shall require only a COJUANGCO, JR. vs. COURT OF APPEALS
preponderance of evidence. 203 SCRA 629
In no case, however, may
the offended party recover FACTS: In this case, there was an
damages twice for the same independent civil action for recovery
of civil liability arising from action for damages arising therefrom

defamation filed by Cojuangco against must be filed in the same court.”
a media company. So there were two In other words, if there is a second
(2) cases – a criminal action for libel reason why consolidation should be
under the RPC and a civil case for allowed, that reason is Article 360 of
damages arising from defamation the RPC on libel. While there maybe 2
under Article 33 of the Civil Code. The separate actions in libel – damages and
question is: can the two cases be criminal case – Article 360 orders the
consolidated under Section 2? – consolidation of the two. That is
because one argument is you only mandated under Article 360.
consolidate the civil action if it is not
independent action. But anyway, The next question is: Suppose I will file an
independent man ito – why will independent civil action, do I have to make a
consolidate? reservation? The civil action specified is an
independent one. Take note that under Section 1,
ISSUE: May a civil action for when you file a criminal case without making a
damages arising from defamation reservation, the civil action is already deemed
(independent civil action) and the instituted unless you make a reservation.
criminal case for libel be consolidated?
There were some confusions on that point
HELD: YES, they can be because in the old cases of GARCIA VS. FLORIDO
consolidated under Rule 31 of the (52 SCRA), ABELLANA VS. MARABE (57 SCRA),
Rules of Court, citing again the case of the SC implied that when the civil action is
Caños vs. Peralta, because there is a independent, there is no need to make a
common question of law and fact. reservation. That is an implication because it is
“Section 1, Rule 31 of the Rules of independent – why should its filing be dependent
Court authorizes consolidation of on reservation?
actions involving common questions
of law or fact pending before the court. However, the 1985 Rules on criminal
The purpose or object of consolidation procedure made reservation mandatory even in
is to avoid multiplicity of suits, guard independent civil actions. Section 3 of the 1985
against oppression or abuse, prevent Rules says, “in the cases provided in Articles 32,
delay, clear congested dockets, 33, 34 and 2176 of the Civil Code, the
simplify the work of the trial court, independent civil action which has been reserved
and save unnecessary costs or may be brought by the offended party, shall
expense; in short, the attainment of proceed independently.” So in the instructive
justice with the least expense and case of MANIAGO VS. CA, (253 SCRA 674) as
vexation to the parties litigants. This well as the case of SAN ILDEFONSO VS. CA, (289
provision applies to both civil and SCRA 568), the SC ruled that there is still a need,
criminal actions. The case Caños had whether a civil action is independent or not, to
removed any doubt on this point.” [So make a reservation, otherwise the civil action is
even if we disregard Rule 111 Section deemed instituted.
2, it can be consolidated under Rule
31] NOW, you will notice in Section 3 of the new
“There is yet a further rules, that phrase “which has been reserved” is
consideration why in the instant case deleted. So based on the language of the new
consolidation of civil case and the rules, babalik na naman tayo sa FLORIDO and
criminal case should be allowed. What MARABE ruling, that an independent civil action
is involved is the crime of libel. As NEED NOT BE RESERVED. Therefore, the ruling
correctly stated by petitioners, per the in the MANIAGO and SAN ILDEFONSO cases is
third paragraph of Article 360 of the deemed abandoned by the SC.
Revised Penal Code, as amended, the
criminal case for libel and the civil
SEC. 4. Effect of death pendency of the criminal action shall extinguish

on civil actions. – The the civil liability arising from the delict – the civil
death of the accused after liability arising from the crime is deemed
arraignment and during the extinguished which you have taken up already in
pendency of the criminal
criminal law. However, the independent civil
action shall extinguish
the civil liability action instituted under Section 3 of this Rule or
arising from the delict. which thereafter is instituted to enforce liability
However, the independent arising from other sources – meaning, another
civil action instituted source other than the delict – may be continued
under section 3 of this against the estate or legal representative of the
Rule or which thereafter accused after proper substitution as the case may
is instituted to enforce be.
liability arising from
other sources of Balik na naman tayo sa civil procedure nito.
obligation may be
The action survives – there will be substitution.
continued against the
estate or legal This is actually a repetition of civil procedure –
representative of the “the heirs of the accused maybe substituted for the
accused after proper deceased without requiring the appointment of an
substitution or against executor or administrator and the court may appoint a
said estate, as the case guardian…” That is a repetition of Rule 3, about
may be. The heirs of the substitution of a party. But the civil action here
accused may be substituted refers to a civil action where the source of a claim
for the deceased without is not a crime, wala na eh, extinguished na kaya it
requiring the appointment could be a contract or a quasi-delict.
of an executor or
administrator and the
Q: On the third paragraph, assuming there is
court may appoint a
a judgment. How will you enforce it? By
guardian ad litem for the
minor heirs. execution?
The court shall A: NO. You must file it as a claim against he
forthwith order said legal estate. As a rule, there is no execution. All the
representative or creditors mush share equally with the assets. That
representatives to appear is Special Proceedings: what claims must be filed
and be substituted within against the estate of the deceased?
a period of thirty (30)
days from notice. Q: Last paragraph. In case before
A final judgment arraignment, namatay – wala na! – the criminal
entered in favor of the
liability is extinguished. What happens now to
offended party shall be
enforced in the manner any possible civil action which the offended party
especially provided in may file?
these rules for A: He can file it against the estate of the
prosecuting claims against deceased but the assumption is, it is based on
the estate of the quasi-delict or any other sources of obligation
deceased. other than the crime.
If the accused dies
before arraignment, the
case shall be dismissed SEC. 5. Judgment in
without prejudice to any civil action not a bar. –
civil action the offended A final judgment rendered
party may file against the in a civil action
estate of the deceased. absolving the defendant
(n) from civil liability is
not a bar to a criminal
Section 4 is entirely new. The first sentence is action against the
enunciated in the case of Bayotas – the death of defendant for the same act
the accused after arraignment and during the
or omission subject of the The concept of prejudicial question is the exact

civil action. (4a) opposite of Section 2 because in Section 2, unless
independent civil action, the filing of the criminal
Section 5 is the exact opposite of Section 2 action will cause the suspension of the civil
because the last paragraph of Section 2 says “the action. Ito naman, baliktad – the filing of the civil
extinction of the penal action does not carry with case will suspend the criminal case – that is, if
it the extinction of the civil action.” Itong Section there is a prejudicial question involved in the civil
5 naman, baliktad! – the extinction of civil action. case.
Is the criminal action also extinguished? NO. “A
final judgment rendered in a civil action Q: What is a prejudicial question?
absolving the defendant from civil liability is not A: A prejudicial question is that arising in the
a bar to a criminal action against the defendant.” civil case but which is so intimately connected
with the issues involved in the criminal case as to
Now, what is new here is the last clause – “for be determinative of the innocence or guilt of the
the same act or omission subject of the civil accused. (Mendiola vs. Macadaeg, February 27,
action” – because for all you know, the evidence 1961)
submitted in civil case might be incomplete and
the government has better evidence in the So the resolution of the civil action will
criminal action. determine the guilt or innocence of the accused in
the criminal case. The guilt or innocence of the
accused will depend on the outcome of the issue
SEC 6. Suspension by in the civil case kaya paunahin natin ang civil.
reason of prejudicial
question. – A petition for
Q: How do you determine whether a question
suspension of the criminal
action based upon the is prejudicial?
pendency of a prejudicial A: The elements of a prejudicial question are
question in a civil action found in Section 7:
may be filed in the office 1. the previously instituted civil action
of the prosecutor or the involves an issue similar or intimately
court conducting the related to the issue raised in the
preliminary investigation. subsequent criminal action, and
When the criminal action 2. the resolution of such issue determines
has been filed in court whether or not the criminal action
for trial, the petition to
may proceed.
suspend shall be filed in
the same criminal action
at any time before the Q: What will happen to the criminal case filed
prosecution rests. (6a) in the court?
A: It will be suspended. The accused will have
SEC. 7. Elements of to file a motion for the suspension of the
prejudicial question. – proceeding.
The elements of a
prejudicial questions are: For example, Rod is accused of bigamy for
(a) the previously marrying twice. However, there is a civil case also
instituted civil action pending where the issue is whether his first
involves an issue similar
marriage is valid or not. Kung valid yon, patay
or intimately related to
the issue raised in the ka! – bigamy! Kung void naman yun, there is no
subsequent criminal bigamy.
action, and (b) the
resolution of such issue
determines whether or not
PEOPLE vs. ARAGON
the criminal action may
proceed. (5a) 94 Phil. 357
FACTS: Pches contracted a second determine whether the forcible abduction case
marriage with Cholo, a married man. will proceed to the SC?
The latter subsequently married Thea, RULING: According to the CA, YES because
the second girl. Cholo was prosecuted of this argument: suppose it is proven that the
for bigamy. Thea, the second wife filed marriage between the Kenneth and the Hannah is
an action to declare her marriage as null and void, therefore, the criminal liability of
defective because of the force Kenneth for forcible abduction with rape cannot
employed against her by Cholo. And, be extinguished because the marriage is a false
even if his first marriage is not valid, one. However, if it turned out that the marriage is
sabi niya (Thea), yung akin ay really valid, then the criminal case for abduction
voidable pa rin because my consent will definitely be extinguished.
was secured through force or
intimidation. CASE: This one is squatting. André was
Sabi naman ni Cholo, kung ganun, accused under the anti-squatting law for
it is prejudicial. We will have to wait occupying the property of Eumir. In another civil
for the result of that case filed by the case, the issue is ownership of the same property
second wife (Thea) whether really I between André and Eumir. They are quarreling
used force or intimidation to get her as to who is really the owner. Here, kailangan
consent. So the case of bigamy should muna matulog ang criminal case. Depende yan
not be tried. kasi kung sinong manalo sa civil case. How can
you be a squatter if it turns out that you are the
HELD: Cholo is wrong because it owner of property. So it is considered as
was him, who is accused of bigamy, prejudicial question.
who employed the force. Cholo cannot
use his own malfeasance to defeat the The last point to consider here:
action based on the criminal act. Ikaw
and nag-gawa ng force tapos you use Q: Can you raise a prejudicial question as a
the force to suspend the criminal case? ground to suspend the preliminary investigation
Di puwede yan! There is something before the fiscal’s office? Or, does the issue of
wrong in that situation. prejudicial question only applicable when the
case reaches the court?
A: Prejudicial question can be raised as a
But assuming it is Thea who is accused of ground to suspend a preliminary investigation.
bigamy for contracting a second marriage with Section 6 says, “a petition for suspension of the
the man. And the woman says, “It is true pero criminal action based upon the pendency of a
pinilit niya ako. Ayoko man ba!” So she filed an prejudicial question in a civil action may be filed
action to declare the second marriage defective on in the office of the prosecutor or the court
the ground of vitiated consent. Ayan! Prejudicial conducting the preliminary investigation.”
yan because she is the victim [of force and
intimidation]. Really, if her second marriage was Of course, when the criminal action has been
obtained without her consent, how can she be filed in court, the petition for suspension must be
guilty of bigamy? Yan! Pwede yan! filed in the same criminal action.
CASE: (decided by Court of Appeals) A The first case where the SC said that
criminal case was filed against Kenneth for prejudicial question can be raised even in the
forcible abduction with rape. While the criminal preliminary investigation was first laid down in
case was pending, there was a supposed marriage the 1940 case of DE LEON VS. MABANAG (72
between him and his victim (Hannah) para ma- Phil. 202).
extinguish ang criminal liability ni Kenneth. But
Hannah filed a case to declare the marriage as However in 1962, the SC had a change of
null and void. Question: Will the pendency of the mind in the case of DASALLA VS. CITY
civil case for nullity of marriage filed by Hannah ATTORNEY, (5 SCRA 193) where the SC said, the
be considered as prejudicial question to suspension on the ground of prejudicial question
only applies when the case is already in court but
not where the case is still under preliminary and the respondent is probably
guilty thereof, and should be
investigation. The ruling in Mabanag is held for trial.
abandoned. The Dasalla ruling was reiterated in Except as provided in
the case of FALGUI VS. PROVINCIAL FISCAL OF section 7 of this Rule, a
preliminary investigation is
PAMPANGA, 62 SCRA 462. required to be conducted before
the filing of a compliant or
However, when the 1985 rules were enacted, information for an offense
where the penalty prescribed by
you will notice in Section 6 that the issue of law is at least four (4) years,
prejudicial question may be raised in the office of two (2) months and one (1) day
the prosecutor or the judge conducting the without regard to the fine.
(1a)
preliminary investigation. That means the
resurrection of the Mabanag ruling in 1940 and the
Alright. We will now go to Preliminary
abandonment of the subsequent cases of Dasalla
Investigation. This is one of the features of the
and Falgui, Jr. So binalik nila ang Mabanag.
inquisitorial system of criminal procedure. The
government is the boss. The purpose is for
determining whether there is probable cause, not
guilt or innocence of the accused, because what is
probable cause to you may not be probable cause
sa akin. That is why you can see the fiscal as a
very powerful person in the government. He
could say that there is probable case or there is
none. Depende kung anong gusto niya.
So, the government through the investigating

officer will decide whether there is a case or no
case. He will first conduct an investigation and if
he believes that there is a probable cause, then he
will prepare a resolution recommending to this
superior that the respondent be indicted in court.
The purpose of preliminary investigation is to

secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from
an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and
also to protect the state from useless and
expensive trials. (Marcos vs. Cruz, 68 Phil. 96;
Hashim vs. Boncan, 71 Phil. 216)
Q: Is Preliminary Investigation required in all

criminal cases?
A: Under the new rules, it is required when
the crime for which the respondent is charged
Rule 112 carries a penalty of at least four (4) years, two (2)
PRELIMINARY months, and one (1) day.
INVESTIGATION
Q: What happen if a case is filed in court
SECTION 1. Preliminary without preliminary investigation? Can the
investigation defined; when accused file a motion to quash the information on
required.– Preliminary
investigation is an inquiry or
the ground of absence of a preliminary
proceeding to determine whether investigation?
there is sufficient ground to A: Of course there is no question that there is
engender a well-founded belief
that a crime has been committed a denial of a right. However, if there is an
irregularity, that is not a ground for dismissal. An 1018), the SC said that the prosecution, as an
information cannot be dismissed because there exception, may be compelled by mandamus if he
was no preliminary investigation. The procedure abuses his discretion and refuses to include a
is for the court to suspend the proceedings and person as a co-accused against whom there
refer the matter back to the proper officer for appears to be at least a prima facie evidence. That
preliminary investigation (People vs. Oliveria, 67 is grave abuse of discretion. However, this
Phil. 427; People vs. Manlapas, L-17993, August extraordinary writ is available only if the petition
24, 1962) shows that he has first exhausted all remedies in
the ordinary course of law such as a motion filed
Q: Who has the discretion whether to with the trial court for the indictment of the
prosecute or not to prosecute? person or persons excluded by the prosecutor.
A: The public prosecutor. That is why he is a
powerful officer. He exercises quasi-judicial
function because he is the one to determine
SANCHEZ vs. DEMETRIOU
whether to file a case against you or not. He has
November 9, 1993
the authority to file or the authority to dismiss.
HELD: “The decision of the
Q: Can the discretion of a public prosecutor
prosecutor may be reversed or
be controlled? Can you file a petition for
modified by the Secretary of Justice or
mandamus to compel a public prosecutor to file a
in special cases by the President of the
case?
Philippines. But even this Court
A: General Rule: The public prosecutor cannot
cannot order the prosecution of a
be compelled by mandamus to prosecute a case
person against whom the prosecutor
because it is discretionary eh! Maybe you can
does not find sufficient evidence to
prove grave abuse of discretion. Maybe the
support at least a prima facie case. The
probable cause is very, very clear or obvious, then
courts try and absolve or convict the
ayaw pa nyang i-file, ayan na!
accused but as a rule have no part in
the initial decision to prosecute him. “
Q: What are the remedies of the offended
“The possible exception is where
party if a fiscal refuses to file a case even when
there is an unmistakable showing of a
there is a sufficient evidence n which action may
grave abuse of discretion that will
be taken?
justify judicial intrusion into the
A: There are three (3) possible remedies:
precincts of the executive. But in such
1. He may take up the matter
a case the proper remedy to call for
with the Secretary of the Justice
such exception is a petition for
who may then take such
mandamus, not certiorari or
measures as may be necessary
prohibition.”
in the interest of justice; or to
his superior officer, the
Let’s go back in the case of
Regional State Prosecutor;
2. He may also file with the TEEHANKEE JR. vs. MADAYAG
proper authorities or court March 6, 1992
criminal or administrative
charges against the fiscal. That FACTS: Here, Claudio Teehankee,
is what you call prevericacion in Jr. was originally charged for the
the Revised Penal Code; crime of frustrated murder for
3. He may file a civil action for shooting Hultman na na-comatose for
damages under Article 27, how many months. In the course of
New Civil Code. the trial, Hultman died. The
prosecution sought to change the
There are other cases where the Supreme information from frustrated murder to
Court (SC) commented on this aspect about the consummated murder. Teehankee Jr.
quasi-judicial power of the public prosecutor. In questioned the new charge for lack of
the case of GUIAO VS. FIGUEROA (94 Phil. preliminary investigation thereon .
There are three (3) questions to be So you are not prejudiced because
answered here: the same defense available to you is
still available to you now.
ISSUE #1: Was there an amendment
of the information or substitution when ISSUE #3: Is there a need of a
the information was changed from preliminary investigation on the new
frustrated murder to consummated charge?
murder? HELD: No need because you have
HELD: There is an amendment. not changed the crime. If you change
“There is an identity of offenses the crime or when there is
charged in both the original and the substitution, kailangan ng preliminary
amended information [murder pa investigation. Since it is only a formal
rin!]. What is involved here is not a amendment, preliminary investigation
variance of the nature of different is unnecessary. “The amended
offenses charge, but only a change in information could not conceivably
the stage of execution of the same have come as a surprise to petitioner
offense from frustrated to for the simple and obvious reason that
consummated murder. This being the it charges essentially the same offense
case, we hold that an amendment of as that charged under the original
the original information will suffice information. Furthermore, as we have
and, consequent thereto, the filing of heretofore held, if the crime originally
the amended information for murder charged is related to the amended
is proper.” charge such that an inquiry into one
would elicit substantially the same
ISSUE #2: What kind of facts that an inquiry into the other
amendment? Formal or substantial? would reveal, a new preliminary
HELD: Formal. “An objective investigation is not necessary.”
appraisal of the amended information
for murder filed against herein
petitioner will readily show that the SEC. 2. Officers authorized
to conduct preliminary
nature of the offense originally investigations. –The following
charged was not actually changed. may conduct preliminary
Instead, an additional allegation, that investigations:
(a) Provincial or City
is, the supervening fact of the death of Prosecutors and their
the victim was merely supplied to aid assistants;
the trial court in determining the (b) Judges of the Municipal
Trial Courts and Municipal
proper penalty for the crime [So it is Circuit Trial Courts;
still murder.]. That the accused (c) National and Regional
committed a felonious act with intent State Prosecutors; and
(d) Other officers as may be
to kill the victim continues to be the authorized by law.
prosecution's theory. There is no Their authority to conduct
question that whatever defense herein preliminary investigations
shall include all crimes
petitioner may adduce under the cognizable by the proper court
original information for frustrated in their respective territorial
murder equally applies to the jurisdictions. (2a)
amended information for murder.”

So halimbawa sabihin ng Q: Going back to Rule 110, Section 1, how is a
prosecutor: “You shot Hultman who criminal action instituted?
almost died.” Teehankee Jr.: “Wala man A: Read Section 1, Rule 110:
ako du’n ba! I was at home asleep!” Alibi
SECTION 1. Institution of
ang defense niya ba. Now, namatay si criminal actions.– Criminal
Hultman. Ano man ang depensa mo? actions shall be instituted as
Mau man gihapon: “Wala man ako follows:
(a) For offenses where a
du’n!” preliminary investigation is
required pursuant to section 1 SEC. 3. Procedure. – The

of Rule 112, by filing the preliminary investigation shall
complaint with the proper be conducted in the following
officer for the purpose of manner:
conducting the requisite (a) The complaint shall
preliminary investigation. state the address of the
respondent and shall be
accompanied by the affidavits
of the complainant and his
Q: Who are those proper officers? witnesses, as well as other
A: They are the officers authorized to conduct supporting documents to
preliminary investigation and they are establish probable cause. They
shall be in such number of
mentioned in Section 2: copies as there are
1. Provincial, city prosecutors and their respondents, plus two (2)
copies for the official file.
assistants;
The affidavits shall be
2. Judges of the MTC, MCTC; subscribed and sworn to before
3. Other officers as may be authorized by any prosecutor or government
official authorized to
law to conduct preliminary administer oath, or, in their
investigation. absence or unavailability,
before a notary public, each of
whom must certify that he
An example of “Other officers as may be
personally examined the
authorized by law to conduct preliminary affiants and that he is
investigation” is the Ombudsman. In the case of satisfied that they voluntarily
UY VS. SANDIGANBAYAN (312 SCRA 77 executed and understood their
affidavits.
[August 9, 1999]), the Ombudsman and his (b) Within ten (10) days
deputies are only authorized to conduct after the filing of the
complaint, the investigating
preliminary investigation of public officers in
officer shall either dismiss it
cases which are falling within the original if he finds no ground to
jurisdiction of the Sandiganbayan (SB).So even if continue with the
investigation, or issue a
the crime is a violation of the Anti-Graft law, or a subpoena to the respondent
crime committed by a public officer in relation to attaching to it a copy of the
his office, if he is below Grade 27, the proper complaint and its supporting
affidavits and documents.
court is not the SB, but the MTC or RTC. Before The respondent shall have
kasi, the original SC interpretation of the the right to examine the
Ombudsman law as laid down in the first case of evidence submitted by the
complainant which he may not
DELOSO VS. DOMINGO (November 21, 1990), is have been furnished and to copy
that, all crimes committed by public officers them at his expense. If the
should be investigated by the Ombudsman. evidence is voluminous, the
complainant may be required to
specify those which he intends
HOWEVER, Ombudsman Desierto filed a to present against the
Motion for Further Clarification in the SC in respondent, and these shall be
made available for examination
relation to the case of UY where I think the or copying by the respondent at
Ombudsman is trying to convince the SC to his expense.
change its mind because it is practically making Objects as evidence need not
be furnished a party but shall
that office a useless office. Now, SC resolved to be made available for
consider the same. Therefore the ruling in UY is examination, copying, or
reversed in a SC resolution (dated March 20, 2001 photographing at the expense of
the requesting party.
[G.R. 105965-70]) where the SC went back to its (c) Within ten (10) days
original ruling that the Ombudsman is from receipt of the subpoena
authorized to conduct preliminary investigation with the complaint and
supporting affidavits and
and to prosecute all criminal cases involving documents, the respondent shall
public officers and employees, not only those submit his counter-affidavit
within the jurisdiction of the Sandiganbayan, but and that of his witnesses and
other supporting documents
those within the jurisdiction of the regular courts relied upon for his defense.
as well. So take note of that. The counter-affidavits shall be
subscribed and sworn to and
certified as provided in
paragraph (a) of this section, the ten (10) day period, the
with copies thereof furnished
by him to the complainant. The investigating office shall resolve the
respondent shall not be allowed complaint based on the evidence
to file a motion to dismiss in presented by the complainant.”
lieu of a counter-affidavit.
(d) If the respondent cannot 4. paragraph [e]. What is new is the 2nd
be subpoenaed, or if paragraph, “the hearing shall be held
subpoenaed, does not submit within 10 days…” Actually here, tapos
counter-affidavits within the
ten (10) day period, the na ang affi-affidavits. But if you want
investigating office shall to clarify something, you can call the
resolve the complaint based on witnesses for clarificatory questioning,
the evidence presented by the
complainant. pero he has a deadline to do it – 10
(e) The investigating days.
officer may set a hearing if
there are facts and issues to
be clarified from a party or a In the case of
witness. The parties can be
present at the hearing but TATAD vs. SANDIGANBAYAN
without the right to examine or 159 SCRA 70, March 21, 1988
cross-examine. They may,
however, submit to the
investigating officer questions FACTS: The preliminary
which may be asked to the party investigation lasted for 3 years. So
or witness concerned.
The hearing shall be held Tatad questioned the information.
within ten (10) days from
submission of the counter-
ISSUE #1: Is the 10-day period to
affidavits and other documents
or from the expiration of the issue a resolution mandatory or
period for their submission. It directory?
shall be terminated within five
(5) days.
HELD: “The 10-day period fixed
(f) Within ten (10) days by law is merely “directory,” yet, on
after the investigation, the the other hand, it can not be
investigating officer shall
determine whether or not there
disregarded or ignored completely,
is sufficient ground to hold with absolute impunity. It certainly
the respondent for trial. (3a) can not be assumed that the law has
included a provision that is
deliberately intended to become
Q: What is the procedure for Preliminary meaningless and to be treated as a
Investigation? dead letter.” So all of the information
A: You read Section 3 step by step. Actually filed must be dismissed for violation
it’s a battle of affidavits eh. It is the same as the of the right for speedy trial.
old rules. Anyway I’ll just mention the changes
no: ISSUE #2: The government
1. In 2nd paragraph of [b] “The contended that a total lack of
respondent shall have the right to preliminary investigation is not a
examine the evidence submitted by ground for dismissing an information,
the complainant which he may not how come the delay in terminating a
have been furnished and to copy them preliminary investigation becomes
at his expense.” now a ground for dismissal?
2. paragraph [c]. What is new here is the HELD: “It has been suggested that
last sentence – “The respondent shall the long delay in terminating the
not be allowed to file a motion to preliminary investigation should not
dismiss in lieu of a counter-affidavit.” be deemed fatal, for even the complete
So you can file your counter-affidavit. absence of a preliminary investigation
Do not file a motion to dismiss; does not warrant dismissal of the
3. “[d] If the respondent cannot be information. True — but the absence
subpoenaed, or if subpoenaed, does of a preliminary investigation can be
not submit counter-affidavits within corrected by giving the accused such
investigation. But an undue delay in

the conduct of a preliminary
investigation can not be corrected, for SOCRATES vs. SANDIGANBAYAN
until now, man has not yet invented a 253 SCRA 773, February 20, 1996
device for setting back time.”
NOTE: I think Socrates was a
governor of Palawan. He was also
facing cases in the Sandiganbayan
SANTIAGO vs. GARCHITORENA where he invoked the Tatad ruling.
December 2, 1993 HELD: “In the application of the
constitutional guaranty of the right to
FACTS: Anti-graft charges were speedy disposition of cases, particular
filed against Miriam Defensor- regard must also be taken of the facts
Santiago when she was still the and circumstances peculiar to each
Immigration Commissioner. Santiago case. It is palpably clear that the
raised this issue (on delay) because application of the Tatad doctrine
the offense was allegedly committed should not be made to rely solely on
on or about October 17, 1988 and the the length of time that has passed but
information was filed only on May 9, equal concern should likewise be
1991 or almost 3 years later. The accorded to the factual ambiance and
amended information was filed only considerations. It can easily be
on December 8, 1992 or 4 years later. deduced from a complete reading of
So following the Tatad ruling they the adjudicatory discourse in Tatad
shall be dismissed. that the three-year delay was
specifically considered vis-a-vis all the
HELD: “[Santiago] cannot facts and circumstances which
complain that her constitutional rights obtained therein.”
to due process were violated by reason
of the delay in the termination of the So you just don’t consider the time element.
preliminary investigation. Tatad v. You must also consider the facts. Panahon ni
Sandiganbayan, 159 SCRA 70 [1988] is Marcos yung kay Tatad eh.
inapplicable to petitioner's case. In
Tatad, there indeed was an
unexplained inaction on the part of the SERVANTES vs.
public prosecutors inspite of the SANDIGANBAYAN
simplicity of the legal and factual 307 SCRA 149, May 18, 1999
issues involved therein. In the case at
bench, there was a continuum of the NOTE: The Tatad ruling was
investigatory process but it got snarled applied in this case.
because of the complexity of the issues FACTS: Here, Elpidio Servantes
involved. “ was charged for violation of Section
“We note that [Santiago] had 3(e) of the Anti-Graft law. It took the
previously filed two petitions before special prosecutor six (6) years from
us involving 2 criminal cases. the filing of the initiatory complaint
Petitioner has not explained why she before he decided to file an
failed to raise the issue of the delay in information for the offense in the
the preliminary investigation and the Sandiganbayan. Servantes filed a
filing of the information against her in motion to quash for violation of the
those petitions. A piece-meal right to speedy disposition of the case.
presentation of issues, like the Special prosecutor tried to justify the
splitting of causes of action, is self- delay in the resolution of the
defeating.” So it is like splitting your complaint by stating that no political
causes of action working against you. motivation appears in the prosecution
Yaan! of the case in apparent reference in the
case of Tatad because in the case of officer shall either dismiss it

if he finds no ground to
Tatad there was political motivation continue with the
dun eh kaya na-delay. investigation, or issue a
Special Prosecutor: “Servantes here subpoena to the respondent
attaching to it a copy of the
was insensitive to the implications and complaint and its supporting
contingencies thereof by not taking affidavits and documents.
any step whatsoever to accelerate the The respondent shall have
the right to examine the
disposition of the matter.” Meaning, 6 evidence submitted by the
years anong ginawa mo? Hindi ka complainant which he may not
man nagreklamo! You did not file a have been furnished and to copy
them at his expense. If the
motion to hurry up. So you are evidence is voluminous, the
estopped. complainant may be required to
specify those which he intends
to present against the
HELD: “We find Servantes’ respondent, and these shall be
contention meritorious. He was made available for examination
deprived of his right to speedy or copying by the respondent at
his expense.
disposition of the case, a right Objects as evidence need not
guaranteed by the Constitution. We be furnished a party but shall
cannot accept special prosecutor’s be made available for
examination, copying, or
ratiocination. It is the duty of the photographing at the expense of
prosecutor to speedily resolve the the requesting party.
complaint as mandated by the
Constitution regardless of whether There is no mention that after the counter-
Servantes did not object to the delay affidavit, the complainant can also file a reply-
although the delay was with his affidavit. There is nothing which says that it
acquiescence provided it was not due cannot be done, there is nothing which says that
to causes directly attributable to him.” it can be done. Well, my position is, since it is not
So the mere fact that he was not prohibited, try it. Anyway wala mang bawal ba.
complaining is not a factor. What is
the factor is when the delay was Q: Going back to paragraph (b) when the
caused by him. Yaan! respondent is subpoenaed, he is supposed to file
his counter-affidavit. Paano kung di siya ma-
subpoena or even if subpoenaed he does not
I know a case decided here during the time of submit his counter-affidavit?
former deputy Ombudsman Delpacio(?) when he A: The investigating officer shall resolve the
was still here in Davao. For more than 4 years the complaint based on the evidence presented by the
preliminary investigation has not been complainant.
terminated. The respondent filed a mandamus
direct to the SC to compel the dismissal of his
case citing Tatad case. With this mandamus, the MERCADO vs. COURT OF APPEALS
SC required the Ombudsman to comment. So July 5, 1995
what the Ombudsman did, pinaspasan niya! So
he came out with a resolution immediately – a HELD: “The New Rules on
resolution to file. Then he answered the SC: “I Criminal Procedure does not require
already terminated the preliminary investigation in as a condition sine qua non to the
fact there is now a resolution to file. Cured na! There is validity of the proceedings [in the
no more delay.” Sabi ng SC: “Hindi na puwede yan! preliminary investigation] the
i-dismiss mo na!” presence of the accused for as long as
efforts to reach him were made, and
an opportunity to controvert the
Let’s go back to paragraph [b]: evidence of the complainant is
accorded him. The obvious purpose of
(b) Within ten (10) days the rule is to block attempts of offenses
after the filing of the
complaint, the investigating
by hiding themselves or by employing Department of Justice may

prescribe or motu propio, the
dilatory tactics." Secretary of Justice reverses
or modifies the resolution of
the provincial or city
SEC. 4. Resolution of prosecutor or chief state
investigating prosecutor and prosecutor, he shall direct the
its review. – If the prosecutor concerned either to
investigating prosecutor finds file the corresponding
cause to hold the respondent information without conducting
for trial, he shall prepare the anther preliminary
resolution and information. He investigation, or to dismiss or
shall certify under oath in- move for dismissal of the
the information that he, or as complaint or information with
shown by the record, an notice to the parties. The same
authorized officer, has rule shall apply in preliminary
personally examined the investigations conducted by the
complainant and his witnesses; officers of the Office of the
that there is reasonable ground Ombudsman. (4a)
to believe that a crime has
been committed and that the
accused is probably guilty
thereof; that the accused was The investigating prosecutor after the
informed of the complaint and preliminary investigation will now issue a
of the evidence submitted resolution to be approved by his superior
against him; and that he was
given an opportunity to submit recommending the filing or dismissal of the case.
controverting evidence. If he finds probable cause to hold the respondent
Otherwise, he shall recommend for trial, he shall prepare the resolution and
the dismissal of the complaint.
Within five (5) days from information and he will certify under oath that
his resolution, he shall he, or as shown by the record, an authorized
forward the record of the case officer, has personally examined the complainant
to the provincial or city
prosecutor or chief state and his witnesses that there is a reasonable
prosecutor, or to the Ombudsman ground to believe that a crime has been
or his deputy in cases of committed that the accused is probably guilty
offenses cognizable by the
Sandiganbayan in the exercise thereof, that the accused was informed of the
of its original jurisdiction. complaints and of the evidence submitted against
They shall act on the him and that he was given opportunity to submit
resolution within ten (10) days
from their receipt thereof and controverting evidence. That is a standard form
shall immediately inform the in the information filed by the prosecutor.
parties of such action.
No complaint or information
may be filed or dismissed by an Q: Suppose the prosecutor failed to make that
investigating prosecutor certification in the information, is the information
without the prior written
valid or defective?
authority or approval of the
provincial or city prosecutor A: It is still VALID. “Notwithstanding the
or chief state prosecutor or absence in the information of a certification as to
the Ombudsman or his deputy.
Where the investigating
the holding of a preliminary investigation, the
prosecutor recommends the information is nonetheless considered valid for
dismissal of the complaint but the reason that such certification is not an
his recommendation is
disapproved by the provincial
essential part of the information itself and its
or city prosecutor or chief absence cannot vitiate it as such.” (Alvizo vs.
state prosecutor or the Sandiganbayan, 220 SCRA 45)
Ombudsman or his deputy on the
ground that a probable cause
exists, the latter may, by Q: After that, what will he do? To whom will
himself, file the information he forward his resolution?
against the respondent, or
direct another assistant
A: To the provincial or city prosecutor or chief
prosecutor or state prosecutor state prosecutor depending on who is conducting
to do so without conducting the preliminary investigation;
another preliminary
investigation.
If upon petition by a proper Q: Is the resolution of the prosecutor
party under such rules as the appealable?
A: YES. It is appealable to the Secretary of according to DOJ – my superior and the Secretary
Justice. The last paragraph of Section 4 gives the of Justice has ordered me to move for the
power of review to the Department of Justice – dismissal of the case. Eh kung sabihin ng court:
that is, if the case originally started in the Fiscal’s
office. COURT: “Ayoko! Tuloy ang kaso!”
[ay naloko na!!]
The DOJ can reverse or modify resolution of a FISCAL: “Sorry Your Honor but that is
city or provincial prosecutor and the procedure the order of my superior. I cannot go
for review is governed not by the Rules of Court, against the DOJ.”
but by a department order. There is also a COURT: “Superior mo, hindi akin! It
procedure there for appeal or review by the DOJ is not my superior! Ituloy ang kaso!
(2000 DOJ Rules on Appeal, July 3, 2000).
One of the cases we have to remember here is Yaan!! That was the issue in the case of
the leading case of CRESPO VS. MOGUL, (June CRESPO. And the SC ruled that:
30, 1987). Here are some points discussed in this
case: CRESPO vs. MOGUL
June 30, 1987
Q: What happens if the DOJ sustains the
appeal? HELD: The power of the fiscal is
A: It will reverse the resolution of the practically absolute whether to file or
prosecutor. not to file. But once the case is filed in
court, the power now belongs to the
Example: judge and he is the one who will
PROSECUTOR: “Dismiss! The case determine whether to proceed or not
should not be filed.” to proceed. The court will be the one
DOJ: “Reversed! You file the case.” to decide because control over the case
is already shifted in the court. The
Walang magawa ang fiscal diyan. He must court now has the absolute power and
file the case because that is the order of his once the court tell the fiscal ‘you
superior. What if: proceed,’ then the fiscal has to proceed.
The latter should not shirk from his
Example: responsibility of representing the
PROSECUTOR: “There is probable People of the Philippines. So the
cause. I will file the case.” absolute power of the fiscal ends upon
RESPONDENT/ACCUSED: the filing of the case in court.
“Appeal!” “As an advise [advise lang, hindi
DOJ: “I will reverse. You are hereby naman order], that in order to avoid
ordered not to file.” this unpleasant situation where the
opinion o the Secretary of Justice is not
Q: E kung na-file na? to proceed but the opinion of the judge
A: Under the new rules, the fiscal is ordered is to proceed, and the fiscal is caught
to file a motion to dismiss the case in court. in the middle [naipit ba!], when the
case is already filed in court, as much
There is no problem if the resolution of the as possible huwag ka (DOJ) ng
fiscal is to dismiss and then ang DOJ order is “to makialam. The Secretary of Justice as
file.” Ang mahirap is if the resolution of the fiscal much as possible, should not review
is to file and na-file na, and then sabi ng DOJ, “ah the resolution of the fiscal to file when
walang probable cause – do not file!” Prosecutor: the case is already filed in court to
“Eh, na-file na?” DOJ: “Okey, you move to dismiss avoid this unpleasant situation
the case.” because it will really cause a conflict of
opinion between the two (2) offices.”
So the fiscal will file a motion to dismiss. His
argument will be, there is no probable cause
There are other cases where the SC elaborated Within thirty (30) days from
receipt of the records, the
on this but the leading case is CRESPO. I will just provincial or city prosecutor,
cite to you some of these cases where the SC had or the Ombudsman or his deputy,
something to comment about this issue as we as the case may be, shall
review the resolution of the
have no more time to go over them one by one: investigating judge on the
existence of probable cause.
1. REPUBLIC VS. SUNGA (162 Their ruling shall expressly
and clearly state the facts and
SCRA 191); the law on which it is based
2. MARCELO VS. CA (235 SCRA 39); and the parties shall be
3. PEOPLE VS. CRUZA (237 SCRA furnished with copies thereof.
They shall order the release of
410); an accused who is detained if
4. MARTINEZ VS. CA (237 SCRA no probable cause is found
575); against him. (5a)
5. MOSQUERA VS. PANGANIBAN
(258 SCRA 473); Section 5 applies to preliminary investigations
6. LEDESMA VS. CA, 278 SCRA 658 conducted by MTC judges. Remember, aside
(September 5, 1997). from fiscal, MTC judges are also allowed to
conduct preliminary investigations. But in Metro
And based on some of these cases in relation Manila and chartered cities, MTCC judges do not
to reinvestigation, the SC held that once the case is conduct preliminary investigations – everything
already in court and the accused would like to is given to the state prosecutor.
have his case reinvestigated, the court must
agree. There must always be the concern of the What happens if the judge or the MTC judge
court because of the absolute control is already in will conduct a preliminary investigation? The
the court once the case is filed. And take note that judge will conduct a preliminary investigation.
there is no double jeopardy in preliminary Ang kanya, there is a probable cause or there is
investigation. no probable cause, either way he must forward
his resolution to the provincial prosecutor. The
provincial prosecutor will be the one to decide.
SEC. 5. Resolution of
investigating judge and its Q: Do you mean to tell me the provincial
review.– Within ten (10) days
after the preliminary prosecutor will conduct again another
investigation, the preliminary investigation?
investigating judge shall
transmit the resolution of the
A: NO. He will just review the findings of the
case to the provincial or city judge. Maybe the provincial fiscal will simply
prosecutor, or to the Ombudsman adop the finding of the MTC judge.
or his deputy incases of
offenses cognizable by the
Sandiganbayan in the exercise Q: Suppose sabi ng fiscal, “Di ako kuntento. I
of its original jurisdiction, am not satisfied with the preliminary
for appropriate action. The
resolution shall state the
investigation by that judge. I will conduct another
findings of facts and the law preliminary investigation” Puwede ba yan?
supporting his action, together A: YES. The provincial prosecutor has 100%
with the record of the case
which shall include: (a) the
control. He may adopt the finding and just follow
warrant, if the arrest is by the recommendation filed, or he may conduct his
virtue of a warrant; (b) the own preliminary investigation.
affidavits, counter-affidavits
and other supporting evidence
of the parties; (c) the Q: What happens if his decision is different
undertaking or bail of the from what the MTC judge believes? Whose
accused and the order for his
release; (d) the transcripts of decision will prevail?
the proceedings during the A: Fiscal’s decision will prevail. He can
preliminary investigation; and reverse the resolution of the MTC judge.
(e) the order of cancellation
of his bail bond, if the
resolution is for the dismissal And in case the respondent has been arrested
of the complaint. while the case is under preliminary investigation
and detained in jail, according to Section 5, last Incase of doubt on the

existence of probable cause,
paragraph, last sentence, the provincial fiscal the judge may order the
shall order the release of an accused who is prosecutor to present
detained if no probable cause is found against additional evidence within five
(5) days from notice and the
him. This is one instance where the opinion of the issue must be resolved by the
provincial prosecutor prevails over that of the court within thirty (30) days
judge. The fiscal can reverse the findings of the from the filing of the
complaint of information.
judge eh.
x x x x x x
Q: Bakit naman ganun? Why are we giving
the provincial fiscal more power than the MTC Let us picture what happens here. The case is
judge when it comes to preliminary triable by the RTC – so this means, 6 years and 1
investigation? day up. Now, the fiscal conducts a preliminary
A: The reason is simple: who will prosecute investigation. Assuming after finding probable
the case – the judge or the fiscal? Of course, it is cause, he will file information. After that, what
the fiscal. He will be the one to handle the case will happen? The judge may issue a warrant of
and not the judge. arrest to arrest the accused because in his opinion,
there is probable cause to issue the warrant of
Another reason is given by the SC in one case arrest. So that is the situation.
that actually, preliminary investigation is not
really the function of the judiciary. The power to So you will notice that this word – “probable
determine whether to file or not file does not cause” – has many functions. When the fiscal file
belong to the judiciary. “When a preliminary the information, he believes that there was
investigation is conducted by a judge, the judge probable cause – probable cause to file the case.
performs a non-judicial function, as an exception Pagdating sa court, the RTC judge will present
to his usual judicial duties. The assignment of probable cause na naman to issue warrant of arrest.
that function to judges of inferior courts and to a Iba yan eh! Kanya-kanya yan – probable cause to
very limited extent to courts of first instance was file, probable cause to issue warrant. That is why in
dictated by necessity and practical considerations. the case of
Consequently, the findings of an investigating
judge are subject to review by the provincial CASTILLO vs. VILLALUZ
fiscal.” (Castillo vs. Villaluz, March 8, 1989) March 8, 1989
Alright. Let’s go to Section 6 – a very HELD: “The fiscal prevails over

important provision – when warrant of arrest the judge only in the determination of
may be issued. the existence of a probable cause
justify the filing of a complaint or
SEC. 6. When warrant of information. This task is concededly
arrest may issue. – (a) By the
Regional Trial Court. – Within
executive. But the determination of
ten (10) days from the filing probable cause to justify the issuance
of the complaint or of a search warrant or a warrant of
information, the judge shall
personally evaluate the
arrest is the constitutional prerogative
resolution of the prosecutor of the judge and may not be
and its supporting evidence. He withdrawn from him or even only
may immediately dismiss the
case if the evidence on record limited by statute or the Rules of
clearly fails to establish Court. This task is undoubtedly
probable cause. If he finds judicial.”
probable cause, he shall issue
a warrant of arrest, or a “The findings of the fiscal in the
commitment order if the accused preliminary investigation do not
has already been arrested control or foreclose the exercise of the
pursuant to a warrant issued by
the judge who conducted the power conferred personally on the
preliminary investigation or judge under Section 2 of the Bill of
when the complaint or Rights. That power is his alone.”
information was filed pursuant
to section 7 of this Rule.
Q: Now, under the Constitution, before the

RTC judge issued the warrant of arrest because of ISSUE: May a Judge without
probable cause, anong dapat gawin niya? ascertaining the facts through his own
A: He must personally examine the complainant personal determination and relying
and his witnesses to determine whether there is solely on the certification or
probable cause to issue or not to issue a warrant recommendation of a prosecutor that a
of arrest. probable cause exists issue a warrant
of arrest?
How do you interpret the phrase, “personally
examine”? I have to admit that the cases before HELD: In order to clarify this rule
were somehow confusing. There were some case once and for all, the SC went over all
na literal – pag-file mo ng kaso, the RTC judge the cases where this issue kept coming
has to call the complainants, tanong… tanong… back, starting from: US VS. OCAMPO
tanong… to determine the probable cause to issue (18 Phil.); AMARGA VS. ABBAS (98
a warrant. Otherwise if I will not examine them, it Phil.); PLACER VS. VILLANUEVA
is unconstitutional for to issue a warrant. Or in (126 SCRA 463); SULTA VS. CA (143
another case, RTC judge: ‘sabi ng fiscal, may SCRA 228); SOLIVEN VS. MAKASIAR
probable cause to file eh. Tama na yon! I believe (167 SCRA 393); CASTILLO VS.
him. I will now issue the warrant.’ But there are VILLALUZ (171 SCRA 39); PEOPLE
some cases that say na hindi puwede yan because VS. INTING (187 SCRA 798); to
you are giving now to the fiscal the right to PEOPLE VS. DELGADO (189 SCRA
determine your duty under the Constitution. You 725).
cannot do that because the law says you must This is the dilemma: “if a Judge
personally examine. Otherwise, the fiscal is the one has to personally question each
who is determining. complainant and witness or go over
the records of the Prosecutor's
But meron namang mga kaso where the SC investigation page by page and word
said that if we will require the RTC judge to for word before he acts on each of a
personally examine the complainant and his big pile of applications for arrest
witnesses to determine probable cause before warrants on his desk, he may have no
issuing the warrant, he might have no more or more time for his or her more
nothing to do more except to do that. He cannot important judicial functions. At the
anymore try cases, wala na, puro na lang same time, the Judge cannot ignore the
probable cause. So he may not have time clear words of the 1987 Constitution
anymore to do his usual duty. Thus he can rely which requires probable cause to be
on the findings of the fiscal. personally determined by the judge, not
by any other officer or person.”
So this really cause some kind of confusion. “If a Judge relies solely on the
Now, these confusions are now reconciled. There certification of the Prosecutor, he has
are many cases such as ROBERTS VS. CA (the not personally determined probable
PEPSI-COLA “349” tansan case). But the first one cause. The determination is made by
the SC really discussed the issue exhaustively the Provincial Prosecutor. The
was the 1991 case of constitutional requirement has not
been satisfied.”
LIM, SR. vs. FELIX “The Judge does not have to
194 SCRA 292 [1991] personally examine the complainant
and his witnesses. The Prosecutor can
FACTS: The information was filed perform the same functions as a
– information lang and a certification commissioner for the taking of the
by the fiscal that based on the evidence. However, there should be a
investigation, there is probable cause. report and necessary documents
And on the basis of that information supporting the Fiscal's bare
certification, the judge issued a certification. All of these should be
warrant of arrest. before the judge. The judge must go
beyond the Prosecutor's certification than 20 minutes? You did not

and investigation report whenever go over them. Ibig sabihin
necessary. He should call for the binasa mo lahat yan within 20
complainant and witnesses themselves minutes only?
to answer the court's probing So it is now doubtful that the judge
questions when the circumstances of will go over the entire records within
the case so require.” 20 minutes. Ang kapal ng records eh!
“We reiterate that in making the
required personal determination, a HELD: Sabi ng SC: “Eh kung
judge is not precluded from relying on mabilis pala mag-basa ang judge?
the evidence earlier gathered by [Ano’ng pakialam mo? Ha!] Ang importante
responsible officers. The extent of the nandoon ang records!
reliance depends on the circumstances
of each case and is subject to the
judge's sound discretion. However, (as Now, these issues were further supplemented
happened in the case of Lim) the judge by other cases in 1997. The leading case is
abuses that discretion when having no
evidence before him, he issues a
warrant of arrest.” HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997
How did the SC reconcile that? When the ISSUE: Is it required that
fiscal files an information, the judge will require everything that was filed in the fiscal’s
the fiscal to attach to the information all the office will really be included? Lahat ba
records of the preliminary investigations – talaga? Eh kung makapal?
affidavits, counter-affidavits, or other whatever
documents. All the evidence will be submitted to HELD: “It is NOT required that
the judge and he will review them. After reading the complete or entire records of the
them, if the judge is not satisfied that there was case during the preliminary
probable cause, he may summon the witnesses. investigation be submitted to and
BUT if he is satisfied, he can issue the warrant examined by the judge. We do not
without the need for summoning the witnesses. intend to unduly burden trial courts
He can rely on the affidavits. That is what by obliging them to examine the
personally examined means. complete records of every case all the
time simply for the purpose of
ROBERTS vs. COURT OF ordering the arrest of an accused.
APPEALS What is required, rather, is that the
March 5, 1996 judge must have sufficient supporting
documents (such as the complaint,
FACTS: This is the Pepsi-Cola 349 affidavits, counter-affidavits, sworn
tansan case. Pag-file ng fiscal, marami, statements of witnesses or transcripts
makapal ang documents. The records of stenographic notes, if any) upon
of the case is voluminous. Maraming which to make his independent
nanalo ng 349 nu’n eh. So pag-file, judgment or, at the very least, upon
after 20 minutes the judge issued the which to verify the findings of the
warrant of arrest. The accused prosecutor as to the existence of
challenged it: probable cause. The point is: he cannot
ACCUSED: You did not rely solely and entirely on the
determine probable cause. prosecutor’s recommendation.”
JUDGE: Bakit? All the
supporting documents are
attached in the information. Going back to Section 6 (a):
ACCUSED: Yes, but how
can you go over them in less
(a) By the Regional Trial

Court. – Within ten (10) days
from the filing of the ISSUE #1: Does the court have the
complaint or information, the power to require the fiscal to present
judge shall personally evaluate evidence to convince the judge that
the resolution of the
prosecutor and its supporting there is probable cause to issue the
evidence. [This is a new warrant of arrest when the fiscal
sentence:]He may immediately already found probable cause to file
dismiss the case if the
evidence on record clearly the case?
fails to establish probable HELD: YES. The power of the
cause. If he finds probable fiscal is to determine probable cause to
cause, he shall issue a warrant
of arrest, or a commitment file while for the judge is probable
order if the accused has cause to issue the warrant of arrest.
already been arrested pursuant Iba yung iyo, iba rin yung sa akin! You
to a warrant issued by the
judge who conducted the cannot say that simply because you
preliminary investigation or found probable cause, I will follow
when the complaint or you. [We already discussed that
information was filed pursuant
to section 7 of this Rule. [The principle and it is already stated in the
last sentence is also new:]In rules] So, it will be the power of the
case of doubt on the existence judge to inform the prosecutor and to
of probable cause, the judge
may order the prosecutor to require the fiscal to convince him that
present additional evidence there is probable cause to issue the
within five (5) days from
notice and the issue must be
warrant. (now last sentence of Section
resolved by the court within 6 [a])
thirty (30) days from the
filing of the complaint of
information.
ISSUE #1: Since the fiscal refuses
to comply, did the judge act correctly
in ordering the dismissal of the
This brings to my mind one of the leading information?
cases on this issue which was asked in the Bar HELD: NO. This time mali ang
and which I also asked in some examinations judge. If the fiscal does not want to
here. The case of comply with the judge’s order, the
remedy of the judge is not to issue the
AMARGA vs. FISCAL warrant. Ayaw mong sumunod? –
98 Phil. 739 then do not issue the warrant. But do
not dismiss the case because this time
FACTS: The provincial fiscal filed we are already encroaching the power
an information in the CFI (now, RTC). of the prosecutor. (c.f. second sentence
Normally, the judge will issue the of Section 6 [a])
warrant. Nag-alanganin naman ang
judge. What the judge did was to issue
an order requiring the fiscal to appear Now, based on the present rules, we will now
before him and convince him that ask the same questions today.
there is probable cause for the judge to
issue warrant. Eh ayaw ng fiscal, “My Q: Can the judge require the fiscal to present
golly! That is already an insult for me evidence of probable cause in convincing him to
as a quasi-judicial officer! I found issue the warrant of arrest?
probable cause. That is my finding. A: YES. That is the prerogative of the judge.
The judge should believe me because (AMARGA VS. ABBAS)
that is my prerogative.” So ayaw mag-
sunod ng fiscal. Judge, “Ayaw mo ha! Q: If fiscal refuses, has the judge the power to
Okey! Case is dismissed!” dismiss the case?
Remember, there are two (2) A: In the case of Amarga, no. However, under
questions there asked in the bar: Section 6, the judge may immediately dismiss the
case if the evidence on record clearly fails to establish Obviously, this rule does not apply in
probable cause. chartered cities but in municipalities. Sa
probinsiya, for example, the case is murder. That
That is a new sentence, “xxx he may is not triable by MTC but you can file the
immediately dismiss the case xxx” not found in the complaint for murder before the MTC not for the
prior rule. To my mind, that has change the purpose of trial but for the purpose of
answer. While before, the judge may not have the preliminary investigation. That is the difference.
power to dismiss the case if he finds no probable
cause. Right now, the rules says YES because of We already learned that he resolution of the
that new provision, “he may immediately dismiss judge, whether to file or not to file, is ipasa niya
the case if the evidence on record clearly fails to sa Provincial Prosecutor who has the final say.
establish probable cause” even if the fiscal has That’s why the rule says, if his findings and
already found probable cause. In other words, recommendations are affirmed by the provincial
this has changed the ruling in the old case of or city prosecutor, or by the Ombudsman or his
Amarga. deputy, and the corresponding information is
filed, he shall issue a warrant of arrest. However,
Let’s go to Section 6 [b]: (Preliminary without waiting for the conclusion of the
Investigation conducted by MTC judge) investigation, the judge may issue a warrant of
arrest if he finds after an examination in writing
(b) By the Municipal Trial and under oath of the complainant and his
Court. – When required pursuant
to the second paragraph of witnesses in the form of searching questions and
section of this Rule, the answers, that a probable cause exists and that
preliminary investigation of there is a necessity of placing the respondent
cases falling under the
original jurisdiction of the under immediate custody in order not to frustrate
Metropolitan Trial Court, the ends of justice.
Municipal Trial Court in
Cities, Municipal Trial Court,
or Municipal Circuit Trial Let’s compare.
Court may be conducted by
either the judge or the
prosecutor. When conducted by
Q: Does the fiscal have the power to issue
the prosecutor, the procedure warrant of arrest?
for the issuance of a warrant A: NO. His power is to conduct preliminary
of arrest by the judge shall be
governed by paragraph (a) of
investigation and if there is probable cause – File!
this section. When the
investigation is conducted by Q: Who will issue the warrant?
the judge himself, he shall
follow the procedure provided
A: RTC.
in section 3 of this Rule. If
his findings and Pero ang municipal judge, iba eh. The police
recommendations are affirmed by
the provincial or city
will file a complaint for homicide in MTC for
prosecutor, or by the Ombudsman preliminary investigation. Pag-basa ng MTC
or his deputy, and the judge, “aba! Grabe ito! There is probable cause. Pero
corresponding information is
filed, he shall issue a warrant
teka muna, delikado ito baka makawala – arrest him!”
of arrest. However, without So even before the case is filed in the RTC, the
waiting for the conclusion of MTC judge has the power to issue warrant of
the investigation, the judge
may issue a warrant of arrest
arrest.
if he finds after an
examination in writing and That is the difference between the power of
under oath of the complainant
and his witnesses in the form
the MTC judge and the power of the Provincial
of searching questions and Prosecutor. Both of them have the power to
answers, that a probable cause conduct a preliminary investigation in the
exists and that there is a
necessity of placing the province. But the fiscal has no power to issue a
respondent under immediate warrant but the judge has the power to issue
custody in order not to warrant even while the preliminary investigation
frustrate the ends of justice.
is going on. That is why in the province,
complainants prefer to file sa MTC para issue whether or not the case should be filed in the
dayun ang warrant. RTC.
The issuance of warrant by the MTC judge is Q: But now, when is the preliminary
ex parte. He will just determine it based on the investigation required?
affidavit of the complainant and his witnesses A: When the crime is punishable by 4 years, 2
after searching questions and answers. So the months and 1 day and up.
examination conducted by the judge is literal in
meaning. And once you are arrested, tuloy tayo. Q: The case has a maximum penalty of 6 years
You now follow preliminary investigation. You – therefore triable by the MTC. Is the MTC judge
submit now your counter-affidavits. For what required to conduct a preliminary investigation?
purpose? We will determine whether the case A: YES. Mandated man yan ba! Although it is
will be filed in the RTC or not. triable by the MTC, it is still mandatory for the
MTC judge to conduct preliminary investigation
So there are two (2) stages: because any crime which carries the penalty of 4
years, 2 months and 1 day or up, is subject to
1. first stage – Preliminary Examination – preliminary investigation.
to determine whether or not to issue a
warrant of arrest. This is done ex parte. Q: In this case, who will conduct the
2. second stage – Preliminary preliminary investigation? The fiscal or the MTC
Investigation proper - to determine, judge?
after you are arrested, whether or not A: Either one of them. Let us read the opening
you will be indicted in the RTC. paragraph of Section 6 (b):
Q: Is it mandatory that every time you file a (b) By the Municipal Trial
Court. – When required pursuant
case in the MTC, the judge will always issue a to the second paragraph of
warrant or arrest? section of this Rule, the
A: NO. Hindi naman sinabi yun because in preliminary investigation of
cases falling under the
order to determine whether a warrant of arrest original jurisdiction of the
will be issued, the judge will conduct the Metropolitan Trial Court,
examination. He will examine in writing under Municipal Trial Court in
Cities, Municipal Trial Court,
oath of the complainant and witnesses in the form or Municipal Circuit Trial
of searching questions and answers, that a Court may be conducted by
probable cause exists and that there is a necessity either the judge or the
prosecutor.
of placing the respondent under immediate
custody in order not to frustrate the ends of
But I was wondering with this issue. This
justice.
happens in places where there is only 1 branch, 1
judge. For example, ako ang judge and the case is
So if you file a case for homicide against
filed before me – preliminary investigation ito ha!
somebody in the municipality; tao na kilala mo;
– 4 years, 2 months and 1 day. There is a probable
mayaman at may malalaking properties; if I’m
cause so I will continue. Now, who will try the
the judge, I will not issue a warrant of arrest.
case? Ako rin di ba? Sabihin ng defense, “Ah wala
Tatakbo ba yan? I don’t think so. I may or may
na. Talo na kami. Bias ka na eh!” Naloko na! This
not issue the warrant but my criterion is: is there
might be a ground for disqualification eh because
a necessity of placing him under immediate
you already found probable cause, chances are
custody in order not to frustrate the end of
dire-diretso na ito – you will convict me, you are
justice? But suppose the accused has no
no longer impartial. This is now the danger
permanent address, ayan! Delikado na yan, baka
because of this new provision.
makawala! I will now issue a warrant of arrest.
Suppose sabihin ng judge, “Hindi man. I
Now, what has changed the picture now is
found probable cause only for the case to proceed
this: there is no question if the case is triable by
to trial but for all you know during the trial, I
the RTC, the MTC judge will conduct a
might find you innocent, not guilty beyond
preliminary investigation in order to determine
reasonable doubt. Ang criterion ko diyan is committing a crime in the presence of

probable cause man lang – probably you are a peace officer, the fiscal will only
guilty. But when I will try it, it should be guilt conduct an inquest preliminary
beyond reasonable doubt.” Yan ang delikado investigation and there is no need to
dito! Mabuti sana if the fiscal was the one who issue a warrant because the accused is
conducted the preliminary investigation. But also under detention already.
when I am the one who conducted the Normally, what the court there issues
preliminary investigation and then I will also be is a commitment order, just to confirm
one to try the case, there might be complaints of the detention of the accused; and
biases or prejudgment. So there are provisions in
the new rules which might create practical 3. if the accused is charged for an offense
problems. penalized by fine only – di na
kailangan ang warrant of arrest. There
Let’s go to the last portion of Section 6. Let’s are crimes where there is no penalty
read Section 6 [c]: for imprisonment but only fine like
damage to property through reckless
(c) When warrant of arrest imprudence. Based on the new rules,
not necessary. – A warrant of
arrest shall not issue if the there is no need for a warrant, just an
accused is already under order to appear is sufficient.
detention pursuant to a warrant
issued by the municipal trial
court in accordance with
paragraph (b) of this section, SEC 7. When accused lawfully
or if the complaint or arrested without warrant. –
information was filed pursuant When a person is lawfully
to section 7 of this Rule or is arrested without a warrant
for an offense penalized by involving an offense which
fine only. The court shall them requires a preliminary
proceed in the exercise of its investigation, the complaint or
original jurisdiction. (6a) information may be filed by a
prosecutor without need of such
investigation provided an
Normally, when the information is filed in inquest has been conducted in
court, the court issues a warrant of arrest. accordance with existing rules.
In the absence or
However, there are instances when the court need unavailability of an inquest
not issue a warrant of arrest. prosecutor, the complaint may
be filed by the offended party
or a peace officer directly
Q: What are the instances when the court with the proper court on the
need not issue a warrant of arrest? basis of the affidavit of the
A: Under Section 6 [c], the following are the offended party or arresting
officer or person.
instances: Before the complaint or
information is filed, the
1. if the accused is already under person arrested may ask for a
preliminary investigation in
detention pursuant to a warrant accordance with this Rule, but
issued by the MTC in accordance with he must sign a waiver of the
paragraph [b] of Section 6. If the MTC provision of Article 125 of the
Revised Penal Code, as amended,
issues the warrant of arrest and later in the presence of his counsel.
on the cases reaches the RTC because Notwithstanding the waiver, he
there is probable cause, there is no may apply for bail and the
investigation must be
need for the RTC to issue another terminated within fifteen (15)
warrant because there is already a days from its inception.
warrant issued by the MTC. And as a After the filing of the
complaint or information in
matter of fact, the accused has already court without a preliminary
been detained; investigation, the accused may,
within five (5) days from the
time he learns of its filing,
2. when the complaint or information is ask for a preliminary
filed pursuant to Section 7 of this rule. investigation with the same
right to adduce evidence in his
Section 7 – the accused is arrested for
defense as provided in this

Rule. (7a; sec. 2, R.A. No.
7438) But now, puwede na eh, under this situation
lang: – (1) the accused is arrested without a
Section 7 is another important provision. This warrant and (2) there is the absence or
is called INQUEST PRELIMINARY unavailability of an inquest prosecutor. With that
INVESTIGATION, related to Rule 113, Section 5 situations, the new rules now allow a direct filing
[a] and [b] on warrantless arrest. Here, there is no of the complaint by the offended party or the
need for preliminary investigation because there peace officer directly with the proper court even
is a deadline for the accused to be detained. in the RTC. That is why this is radical change.
Otherwise the peace officer will be guilty of
arbitrary detention – delay in the delivery. Now, whether this is the one or the other, you
cannot deny the fact that the accused is entitled to
If we will conduct a preliminary a preliminary investigation. You cannot deprive
investigation, that will last for many days. So him of this right. When there is a case filed in
what will happen to a person who committed a court without preliminary investigation so that he
crime if we will conduct a regular preliminary can be detained indefinitely in which case, he can
investigation? Well, to avoid this possibility, wala ask for a preliminary investigation in accordance
ng preliminary investigation. The prosecutor will with this rule – but after the case is filed. Baliktad!
conduct an INQUEST preliminary investigation
based only on the affidavit of the complainant, Normally, the preliminary investigation
the police maybe, and his witnesses so that the comes before the filing of the case. Dito naman,
court may issue a commitment order. With that, filing comes before preliminary investigation –
the deadline has been met – you have been baliktad! During preliminary investigation, if
delivered to the proper judicial authorities. there is no probable cause, the complaint will be
dismissed or the fiscal will move to dismiss the
Now, there is a new sentence inserted in case. But if you insist on that right to preliminary
Section 7, first paragraph – “In the absence or investigation before filing, ayaw mo ng inquest,
unavailability of an inquest prosecutor, the complaint then you must sign a WAIVER in the presence of
may be filed by the offended party or a peace officer your counsel – waiver of your right under Article
directly with the proper court.” – a very radical 125, RPC. Here, while the preliminary
provision. investigation is still going on, you remain under
detention. The second paragraph applies if he
The normal procedure is: for example, the insist on the right to a regular or ordinary
offended party or the peace officer will file the preliminary investigation.
case before the fiscal to inquest preliminary
investigation. And then the fiscal will now file the Correlate this with Section 2 [e] of RA 7438 –
information in court let’s say in the RTC. Law Protecting Rights of Persons under custody –
i.e. he must be assisted by his counsel. Otherwise
Q: However, suppose there is no inquest the waiver is not valid.
prosecutor? Or there is an inquest prosecutor but
he is not available, what will happen now to the Now, if there is no insistence, the case will be
case? filed ahead. After it was filed, you can still ask for
A: The new provision says, “the complaint preliminary investigation within 5 days from the
may be filed by the offended party or a peace time you learn of the filing of the case. So within 5
officer directly with the proper court” so that the days lang, otherwise you are deemed to have
accused should be delivered. waived your right to preliminary investigation
Why is this a very radical change? There is no Note that the SC had ruled that the period of
problem with the MTC because you can file 5 days is NON-EXTENDIBLE – that is absolute.
directly in the MTC. But as a matter of practice, (PEOPLE vs. CA, 242 SCRA 645). The five-day
you cannot file a complaint directly with the RTC. period is absolute. After 5 days, you have no
Everything here is done by information. The RTC more right to ask for a preliminary investigation.
does not entertain complaints filed by the police
or the offended party.
Take note that the general rule, once you post affidavits and other supporting
documents submitted by the
bail, you are waiving your right to a preliminary complainant within ten (10)
investigation. In PEOPLE VS. CA, if you do not days from its filing.
want to waive your right to preliminary (b) If filed with the
Municipal Trial Court – If the
investigation, then if you post bail, you must complaint or information is
make a reservation. You must say, “I’m posting filed with the Municipal Trial
bail but I’m not waiving my right to preliminary Court or Municipal Circuit
Trial Court for an offense
investigation. In fact, I am asking for it.” In Section 7, covered by this section, the
last paragraph, when the accused post bail for his procedure in section 3 (a) of
provisional release, he is deemed to have waived this Rule shall be observed. If
within ten (10) days after the
his right to preliminary investigation. To avoid filing of the complaint or
the waiver, there must be a previous or information, the judge finds no
simultaneous demand for a preliminary probable cause after personally
evaluating the evidence, or
investigation upon posting of bail bond. after personally examining in
writing and under oath the
SEC. 8. Records. – (a) complainant and his witnesses
Records supporting the in the form of searching
information or complaint. – An questions and answers, he shall
information or complaint filed dismiss the same. He may,
in court shall be supported by however, require the submission
the affidavits and counter- of additional evidence, within
affidavits of the parties and ten (10) days from notice, to
their witnesses, together with determine further the existence
the other supporting evidence of probable cause. If the judge
and the resolution on the case. still finds no probable cause
(b) Record of preliminary despite the additional
investigation. – The record of evidence, he shall, within ten
the preliminary investigation, (10) days from its submission
whether conducted by a judge or or expiration of said period,
a prosecutor, shall not form dismiss the case. When he finds
part of the record of the case. probable cause, he shall issue
However, the court, on its own a warrant of arrest, or a
initiative or on motion of any commitment order if the accused
party, may order the production had already been arrested, and
of the record or any of its hold him for trial. However, if
part when necessary in the the judge is satisfied that
resolution of the case or any there is no necessity for
incident therein, or when it is placing the accused under
to be introduced as an evidence custody, he may issue summons
in the case by the requesting instead of a warrant of arrest.
party. (9a)
Section 8 is just a reiteration of a doctrine that

when the fiscal files an information, he should Section 9 – Cases not requiring a preliminary
back up his certification of probable cause with investigation nor covered by the Rule on
appropriate records. An information with mere Summary Procedure. Obviously, Section 9 talks
certification is not enough. (Lim, Sr. vs. Felix, only of cases (a) cognizable only by MTC; (b) the
supra) penalty does not exceed 4 years 2 months because
even if it is 4 years 2 months 1 day (up to 6 years),
SEC. 9. Cases not requiring it still requires a preliminary investigation under
a preliminary investigation nor
covered by the Rule on Summary
the new rules; and (c) it should not be covered by
Procedure. – (a) If filed with the Rules of Summary Procedure. The coverage of
the prosecutor. – If the summary procedure is up to 6 months penalty.
complaint is filed directly
with the prosecutor involving
an offense punishable by Q: What cases are covered by Section 9?
imprisonment of less than four A: Where the prescribed penalty exceeds 6
(4) years, two (2) months and
one (1) day, the procedure months but not more than 4 years and 2 months.
outlined in section 3(a) of These does not require preliminary investigation
this Rule shall be observed. and also not covered by the summary rules.
The prosecutor shall act on the
complaint based on the
Q: Now, going back to Rule 110. In cases ten (10) days from notice, to determine further the
cognizable by the MTC, how is it instituted? existence of probable cause.” If the judge still finds
A: Section 1, Rule 110: no probable cause despite the additional
evidence, he shall, within ten (10) days from its
SECTION 1. Institution of submission or expiration of said period, dismiss
criminal actions.– Criminal
actions shall be instituted as
the case. When he finds probable cause, he shall
follows: issue a warrant of arrest, or a commitment order
(a) For offenses where a if the accused had already been arrested, and
preliminary investigation is
required pursuant to section 1
hold him for trial. [The next sentence is new
of Rule 112, by filing the again:] However, if the judge is satisfied that there is
complaint with the proper no necessity for placing the accused under custody, he
officer for the purpose of
conducting the requisite
may issue summons instead of a warrant of arrest.”
preliminary investigation.
(b) For all other offenses, So it is not really necessary that every time a
by filing the complaint or
information directly with the
case is filed in the MTC with a penalty not more
Municipal Trial Courts and than 4 years and 2 months, kailangan mag-
Municipal Circuit Trial Courts, warrant of arrest agad ang judge. Wala na yan!
or the complaint with the
office of the prosecutor. In
That is the old practice. Sometimes it is very
Manila and other chartered tedious. Lalo na sa MTC. Karamihan ng kaso sa
cities, the complaints shall be MTC is bouncing check law. If I were the MTC
filed with the office of the
prosecutor unless otherwise
judge, bouncing check law, sino ba yang
provided in their charters. akusado? “Di ko kilala. Balita ko maraming kaso
yan.” Ah sige, I will issue a warrant.
x x x x x
Pero halimbawa, sino yang akusado? “He is

So there are two (2) ways: (a) direct filing or
Jet Pascua, Your Honor.” Uy! Kilala ko ito!
(b) you file with the prosecutor and the provincial
Businessman ito, titser pa sa Ateneo. Mayaman
prosecutor will file the information.
ito! Sus! Minalas lang. If I am the judge, I will not
issue a warrant. Tatakbuhan ka ba niyan?
Let’s go to Section 9. If it is filed with the
prosecutor, the procedure in Section 3[a] of this
So the judge need not issue a warrant. You
rule shall be observed. There is no need for
better tell that to those judges because they are
preliminary investigation. The prosecutor will
automatic ba! –warrant! warrant! warrant! Just
simply find out based on the affidavit of the
imagine kahit respectable man, first time offender
complainant and his witnesses whether or not
– warrant kaagad ang mga MTC judges.
there is probable cause. Wala ng counter-
affidavit. There is no need for the prosecutor to
Well, under the new rules, hindi man
give a chance to the respondent to give this
kailangan bah! Even if there is probable cause to
counter-affidavits. Section 3[a] lang sundin eh.
file, if he is satisfied that there is no necessity to
There is no mention of [b], [c] or [d].
put the accused in custody, he may issue
summons. Summons here is not really the same in
Section 9[b]. What happens if it is filed in the
the Rules of Court. It is just a notice bah – notice
MTC directly? Again, the judge will observe the
that you are required to appear. And that is a new
same procedure in Section 3[a] of this rule. If the
provision.
judge finds no probable cause after personally
evaluating the evidence, or after personally
Now, we will go to some decided cases
examining in writing and under oath the
related to this rule.
complainant and his witnesses in the form of
searching questions and answers, he shall dismiss
PEOPLE vs. NAVARRO
the same. So he has the power to dismiss the case.
270 SCRA 393, March 25, 1997
Why continue if there is no probable cause?
NOTE: This case signifies that
The next sentence is new: “He may, however,
once the case reached the court, the
require the submission of additional evidence, within
court has the absolute power.
Anything that you like to happen in

the case like reinvestigation or absence However, the SC came out with
of preliminary investigation, the judge EXCEPTIONS where courts is authorized to stop
will be the one to approve. a criminal prosecution. These exceptions were all
FACTS: The RTC judge felt that cited in the case of
the case should be reinvestigated, or
maybe there is no preliminary BROCKA vs. ENRILE
investigation. So he orders the fiscal to 192 SCRA 83
conduct preliminary investigation,
then submit the result to him HELD: Indeed, the general rule is
afterwards what happened. Siguro, that criminal prosecution may not be
the judge had particular confidence in restrained or stayed by injunction,
the assistant provincial prosecutor. preliminary or final. There are
Sabi ng judge, “The preliminary however exceptions, among which are:
investigation should be conducted by
this particular prosecutor – provincial a. To afford adequate protection
assistant prosecutor Boyd Atensor.” to the constitutional rights of
Siya ang nag-pili ba. Sabi ng the accused;
provincial prosecutor, “Hindi! Ako b. When necessary for the orderly
ang magpili and not you!” administration of justice or to
avoid oppression or
ISSUE: In remanding the multiplicity of actions;
complaint or information to the c. When there is a pre-judicial
provincial prosecutor, may a regional question which is sub judice;
trial court judge name or designate a d. When the acts of the officer are
particular assistant prosecutor to without or in excess of
conduct the preliminary investigation authority;
of the case? e. Where the prosecution is under
an invalid law, ordinance or
HELD: NO. The RTC judge is regulation;
already interfering with the office of f. When double jeopardy is
the prosecutor. “It must be stressed clearly apparent;
that preliminary investigation is an g. Where the court has no
executive, not a judicial, function. That jurisdiction over the offense;
an RTC judge has no authority to h. Where it is a case of
conduct a preliminary investigation persecution rather than
necessarily means that he cannot prosecution;
directly order an assistant prosecutor, i. Where the charges are
particularly over the objections of the manifestly false and motivated
latter's superiors, to conduct a by the lust for vengeance; and
preliminary investigation. To allow j. When there is clearly no prima
him to do so is to authorize him to facie case against the accused
meddle in the executive and and a motion to quash on that
administrative functions of the ground has been denied.
provincial or city prosecutor.”
There are some interesting cases where the SC
Q: Can a preliminary investigation be stopped intervened. Normally, hindi nakikialam ang SC
by asking the court to grant a preliminary eh – i-acquit mo na lang yan sa trial. But there are
injunction or a restraining order? Can a criminal cases when the SC is convinced that there is no
prosecution be enjoined or restrained? probable cause, bakit mo pa pahirapan yung tao?
A: NO, as a GENERAL RULE. If you believe You can order the case to be dismissed. These are
that you are not guilty, then you prove that in rare instances where the SC becomes activist.
court. Anyway if you are not guilty, you will be
acquitted.
In the case of ALEADO VS. DIOKNO (232

SCRA 192) two (2) lawyers: Atty. Diosdado Jose Section 2. Arrest; how made.
Aleado and Atty. Roberto Mendoza who were
associates in the office of senator Jovito Salonga Modes of Effecting Arrest
were implicated in the murder of a German 1. By an actual restraint of the person to be
national. There was an investigation and a case arrested
was filed against them. Salonga entered into 2. By his submission to the custody of the
picture and questioned whether or not there is person making the arrest
probable cause. [Normally, hindi dapat yan eh.
Upon arrest, the following may be
Yang probable cause, sa fiscal lang yan, hindi
confiscated from the person arrested:
dapat sa SC.] 1. Objects subject of the offense or used or
intended to be used in the commission of
But surprisingly, the SC reviewed and said the crime;
that there was no probable cause which justified 2. Objects which are the fruits of the crime;
the issuance of order of arrest of the 2 lawyers. 3. Those which might be used by the
The SC ordered that the warrant of arrest be set arrested person to commit violence or to
aside and the trial court is permanently enjoined escape;
from further proceeding against them. In effect, 4. Dangerous weapons and those which
the respondent judge was ordered to dismiss the may be used as evidence in the case.
information before him. (Aleado vs. Diokno,
supra) Section 5. Arrest without warrant; when
lawful
It was a very rare situation. That does not
happen every year. It does not happen even in 10 LAWFUL WARRANTLESS ARREST:
or 20 years! Yan ang mga kuyaw where the Court 1. When, IN HIS PRESENCE, the person to
be arrested has committed, is actually
has the power to issue injunction order to stop a
committing, or is attempting to commit
case when there is no probable cause. Salonga
an offense;
yata yan! 2. When an offense has in fact just been
committed, and he has probable cause to
believe based on PERSONAL
RULE 113 KNOWLEDGE of fact and circumstance
ARREST that the person to be arrested has
committed it; (Doctrine of Hot Pursuit)
Section 1. Definition of arrest. and
3. When the person to be arrested is a
Arrest – the taking of a person into custody prisoner who has escaped from a penal
in order that he may be bound to answer for establishment or place where he is
the commission of an offense (Sec. 1 Rule serving final judgment or temporarily
113) confined while his case is pending, or has
escaped while being transferred from one
Modes of Arrest confinement to another.
1. arrest by virtue of a warrant 4. Where a person who has been lawfully
2. arrest without a warrant under arrested escapes or is rescued (sec 13,
statutorily provided exceptional Rule 113);
circumstances 5. by the bondsman for the purpose of
surrendering the accused (sec 23, Rule
Essential requisites of a valid warrant of 114); and
arrest: 6. where the accused attempts to leave the
1. It must be issued upon probable cause country without permission of the court
which must be determined personally by a (sec 23, Rule 114).
judge after examination under oath or
affirmation of the complainant and the Any objection involving an arrest of the
witnesses he may produce accused without warrant and before the
2. The warrant must particularly describe acquisition by the court of jurisdiction over
the person to be seized the person of the accused must be made
BEFORE he enters a plea, OTHERWISE, the will imperil the

objection is deemed waived. arrest.
Section 6. Time of making arrest.

Unlike a search warrant which must be The private 1. when the person
served only in daytime, an arrest may be Sec. 9 person shall to be arrested is
made on any day and at any time of the day inform the person engaged in the
or night, even on a Sunday. This is justified to be arrested of commission of an
by the necessity of preserving the public the intention to offense or
peace. arrest him and is pursued
the cause of the immediately its
Section 7. Method of arrest of officer by arrest. commission;
virtue of warrant.
Section 8. Method of arrest by officer 2. when he has
without warrant. escaped, flees, or
Section 9. Method of arrest by private forcibly resists
person. before the officer
has an opportunity
Citizen arrest - arrest effected by a private to so inform him;
person. and
Exception to the 3. when the giving

Method of arrest rule on giving of such information
information will imperil the
Sec. 7 The officer shall 1. when the arrest.
inform the person person to be
to be arrested the arrested flees;
cause of the Section 10. Officer may summon
arrest and the 2. when he forcibly assistance.
fact that the resists before the Only an officer making the arrest is governed
warrant has been officer has an by the rule. It does not cover a private
issued for his opportunity to individual making an arrest.
arrest. inform him; and
Section 11. Right of officer to break into
3. when the giving building or enclosure.
of such information
will imperil the Requisites before an officer can break
arrest. into a building or enclosure to make an
The officer shall 1. when the person arrest:
Sec. 8 inform the person to be arrested is 1. That the person to be arrested is or is
to be arrested of engaged in the reasonably believed to be in said
his authority and commission of an building;
the cause of the offense or 2. That he has announced his authority and
arrest w/out a is pursued purpose for entering therein;
warrant immediately its 3. That he has requested and been denied
commission; admittance.
2. when he has Section 12. Right to break out of the

escaped, flees, or building or enclosure to effect release.
forcibly resists A private person making an arrest CANNOT
before the officer break in or out of a building or enclosure
has an opportunity because only officers are allowed by law to
to so inform him; do so.
and
Section 13. Arrest after escape or rescue.
3. when the giving Where a person lawfully arrested escapes or
of such information is rescued, any person may immediately
pursue or retake him without a warrant at d. Bondsman, for purpose of surrendering

any time and in any place within the the accused
country. The pursuit must be immediate. e. Accused attempts to leave country without
court permission
Section 14. Right of Attorney or relative
4. Procedure
to visit person arrested
RA 7438 defined certain rights of persons a. WITH WARRANT
arrested, detained, or under custodial i. Complainant files application with
investigation, with the penalties for affidavits attached
violations thereof. ii. Judge conducts ex parte preliminary
examination to determine probable
RULE 113 ARREST cause
1. Arrest – taking a person into custody in order  In determining probable cause,
that he may be bound to answer for judge must:
the commission of some offense, (1) Personally examine witness
made by an actual restraint of the
person or by his submission to (2) Witness must be under oath
custody (3) Examination must be reduced
2. General Rule: No person may be arrested to writing (Luna vs. Plaza)
without a warrant.  In determining probable cause, the
 Not all persons detained are arrested; only judge may rely on findings by
those detained to answer for an offense. responsible officer (Lim vs. Felix)
 "Invitations" are not arrests and are iii. Judge issues warrant of arrest
usually not unconstitutional, but in some  If without preliminary examination,
cases may be taken as commands (Babst considered irregular (Bagcal vs.
vs. NBI); however, the practice of issuing Villaraza)
an "invitation" to a person who is iv. If peace officer is unable to serve
investigated in connection with an offense warrant 10 days after issuance, he
he is suspected to have committed is must file a report and explanation with
considered as placing him under judge within 10 days
“custodial investigation.” (RA 7438)
v. If warrant served
 Warrants of arrest remain valid until arrest
is effected, or the warrant is lifted (1) Person informed that he is being
arrested
 Arrest may be made at any time of the day
or night (2) Informed of cause of his arrest
3. Warrantless arrests by a peace officer or a (3) Officer may break door or window
private person if admission to building is refused
a. When person to be arrested is committing, (4) Person physically restrained
attempting or has committed an offense  For private citizens making an
b. When an offense has just been committed arrest
and the person making the arrest has  May not do so except to do
personal knowledge that the person to be some service to humanity or
arrested committed it justice
 Warrantless arrest anytime for a (5) No violence or unnecessary force
continuing offense like rebellion, may be used
subversion (Umil vs. Ramos) (6) Officer may summon assistance
 The continuing crime, not the crime (7) Person who escapes after arrest
finally charged, needs only be the may be immediately pursued
cause of the arrest (Umil vs. Ramos)
vi. Person arrested is brought to nearest
c. When person to be arrested is an escaped police station or jail
detainee (either serving sentence or with
case pending)
c. When a person lawfully arrested escapes
b. WITHOUT WARRANT:  Filed with court which issued the

i. Person is arrested warrant of arrest when the warrant of
arrest is fatally flawed
ii. Person arrested may waive right to
Art. 125, RPC and ask for preliminary c. Motion to quash information
investigation or inquest  Filed with court when information
 Fiscal is not judicial authority against the person arrested has been
contemplated under Art. 125 (Sayo filed
vs. Chief of Police)  Must be made in a "special
iii. Fiscal files info appearance" before the court
questioning only its lack of jurisdiction
5. Requisites for a warrant of arrest: over the person of the accused
a. Probable cause  Otherwise, the voluntary appearance
b. Signed by judge of the person arrested by filing a
c. Specifically naming or particularly and motion before the court would be
sufficiently describing person to be deemed a submission to the authority
arrested of the court, thus granting it whatever
jurisdiction it lacked over the person
 John Doe warrants are void for being
general warrants (Pangandaman vs.  Any irregularity in the arrest is cured
Cesar) when the petitioner submits himself to
the jurisdiction of the court, e.g., by
6. Remedies filing for bail (Bagcal vs. Villaraza)
a. Petition for writ of habeas corpus 7. V.V. Mendoza, "Rights to Counsel in
 Filed with any court, to effect Custodial Investigation"
immediate release of the person  Evolution of rights of the accused under
detained custodial investigation
 Filed when a person is being illegally a. All involuntary confession were
detained (without judicial process), or inadmissible; accused had to prove
was illegally arrested (void warrant or involuntariness
unlawful warrantless arrest, or
warrantless arrest beyond period with b. Involuntary confessions were
no information filed) inadmissible only if they were false
 Habeas corpus is not allowed when: c. Revert to exclusionary rule: any
involuntary confession is inadmissible
i. The person is in custody of an
officer under process of law, and d. Miranda rule: the accused must be
informed of his rights
ii. The court had jurisdiction to issue
the process (Luna vs. Plaza) i. To remain silent
 If an arrest is improper, the remedy is ii. Against self-incrimination
a motion for quashal of the warrant of iii. To counsel
arrest and/or a motion to quash the e. Definition of custodial investigation
information, not habeas corpus (Ilagan questioned
vs. Enrile)
f. It begins only after arrest
 Habeas corpus is no longer available
after an information has been filed, the g. Police investigations prior to arrest are
information being the judicial process not covered
required by law (Ilagan vs. Enrile) h. The rights may be waived, but the
 Habeas corpus is proper when a rights to be informed of these rights,
person is being restrained illegally, i.e., to warning, may not be waived
e.g., imprisoned past maximum i. Warning must not only be said, officer
penalty allowed by law (Gumabon vs. must make sure the person arrested
Director of Prisons) understands them specifically
b. Quashal of warrant of arrest j. Present rules
i. Voluntary confessions are
admissible
ii. Test of voluntariness determined criminal justice with the convenience of a person
on a case-to-case basis accused but not yet proven guilty; (b) to relieve
iii. Waiver of rights must not only be the accused of imprisonment, and the State of
with counsel but must be in writing burden of keeping him, pending trial. (6 Am. Jur.
 Confessions made without 61)
assistance of counsel are
inadmissible as evidence to Can you imagine without the provision on
incriminate the accused, but they bail? There will be thousands of people who are
may be used to impeach the already in jail and all at the expense of the
credibility of the accused, or they government. So, we have to combine these two –
may be treated as verbal the convenience of the accused and the
admission of the accused through convenience of the State.
the testimony of the witnesses
(People vs. Molas) Now, let us go to some political law basic
questions: When there is invasion or rebellion,
the Constitution authorizes the Commander-In-
Chief to suspend the privilege of the writ of
habeas corpus. You can be arrested on suspicion
that you are engaged in rebellion even if there is
Rule 114 no warrant and there is no case.
BAIL Q: Are you entitled to bail? Does the
suspension of the privilege of the writ of habeas
Q: Define Bail.
corpus also carry with it the suspension of the
A: Under Section 1:
right to bail?
SECTION 1. Bail defined. – A: That issue bugged the Supreme Court
Bail is the security given for several times prior to the 1987 Constitution where
the release of a person in the SC gave conflicting answers.
custody of the law, furnished
by him or a bondsman, to
guarantee his appearance before In the case of NAVA VS. GATMAITAN, (90
any court as required under the Phil. 172) the SC said, Yes, he is entitled to bail
conditions hereinafter
specified. Bail may be given in once the case has been filed in court. At least 5
the form of corporate surety, out of 9 justices said that. Very close fight! Once
property bond, cash deposit, or the case is filed in court, the right to bail can be
recognizance. (1a)
availed of. So, the right to bail is different from
the suspension of the privilege of the writ of
Ano ba yang bail? Pyansa! As a general rule,
habeas corpus.
once a case is filed in court and there is probable
cause, the judge will issue a warrant. So sa
But when that issue came out during the
presohan ka. Paano yan because you are still
martial law regime, the SC gave a different
presumed innocent? Ang tawag diyan is
answer eh. So, that issue came out again in the
preventive detention. That is why if you are
case of BUSCAYNO VS. MILITARY
convicted, that is already credited as advanced
COMMISSION (109 SCRA 273), GARCIA-
service under Article 29 of the Revised Penal
PADILLA VS. ENRILE (121 SCRA 472). Is there a
Code.
right to bail when the privilege of the writ of
Habeas Corpus is suspended? Ang sabi ng
But that will be too tedious. You are already
Supreme Court, NO! because the government’s
detained, and you are still presumed innocent.
campaign to suppress rebellion might be
The remedy is you apply for bail – you post bail –
ineffective. Captured rebels, would no doubt
because bail is, as a rule, a constitutional right.
rejoin their comrades in the field and jeopardize
the success of the government efforts to end the
Q: And what is the primary purpose of bail?
rebellion. That sounds logical. Just imagine, why
A: American jurisprudence says the purpose
are you suspending the privilege of the writ? To
of bail is (a) to combine the administration of
arrest suspected rebels. Pag naaresto, and then
entitled to bail, balik na naman sila sa mga niya bail muna bago surrender. (Anyway, even if
kasama nila! Anong klaseng campaign ito? That you are charged with a capital crime, you can file
is the reasoning in the case of Buscayno and Ponce a petition for bail.) But he got a lawyer and the
Enrile. lawyer filed a petition for bail in his behalf.
I think that debate is already moot and Q: In this case, can Tato apply for bail?
academic. There is now a direct provision in the A: NO. The SC said, We cannot entertain the
Constitution, Article 3 Section 13 which says that petition for bail because Tato is not in custody!
the right to bail exists and is not suspended by Simple: what is the definition of bail? “Security
the suspension of the privilege. Talagang settled given for the release of a person in custody of law.”
na. You are even at large then you’re asking for bail?
Surrender first bago ka makahingi ng bail.
Another interesting case on bail. These are (Marigbasa vs. Luna, 98 Phil. 466; Feliciano vs.
the cases that cropped up after the 1989 coup d’ Pasicolan, July 31, 1961)
etat attempt against Cory Aquino because some
of the RAM suspects were detained. Many of Q: What do you mean by “in custody of law”?
them were detained because of court martial A: “In custody of law” may mean
charges. They are charged for violating military 1. physical or actual custody; or
law pero nakakulong sila. Some of them applied 2. constructive custody. (Panderanga vs.
for bail. CA, 247 SCRA 41)
Q: Are the same military officers facing PANDERANGA vs. COURT OF

charges before a court martial entitled to bail? APPEALS
A: In COMMENDADOR VS. DE VILLA (200 247 SCRA 417
SCRA 80) the SC said: NO, “the right to bail has
traditionally not been recognized and it is not FACTS: This case originated in
available in the military as an exception to the CDO. The accused was charged of
general rule as embodied in the Bill of Rights.” murder – non-bailable. So, ayaw
There is no such thing as bail in the military. So, niyang magpahuli. Pero actually, he
that’s an exception to the general rule. “The right wants to face the case pero dapat lang
to speedy trial is given more emphasis in the may bail. Pero problema niya how can
military where the right to bail does not exist.” he file a petition for bail when you are
not even in custody? (In custody, you
The dissenter in the case of Commendador is have to surrender or you must be
Abraham Sarmiento. Diyan mo makikita arrested. Kaya nga ayaw niya yun eh.
pagiging humanitarian lawyer niya. During the As much as possible, pag-surrender
time of Marcos he hates the military [gi-lubot siguro niya, meron ng bail. Then what
siya]. But he was the one who said that they are happened?) He entered the hospital,
entitled to bail [nalamian siguro siya] because sabi niya, may sakit daw and then his lawyer
“according to the majority the right to bail has filed a petition for bail before the RTC,
traditionally hot been recognized in the military. “We are appearing for the accused for
I’ve been looking in the bill of rights and I cannot his petition for bail. We would like to
find that exception. Where did the majority get manifest that he is right now in the
that? You mean to tell me the military before are hospital. Will you please consider him
not citizens of the Philippines anymore?” already in the custody of the court?”
According to Isagani Cruz who is the ponente in Sabi ng court, “[Sure!] OK, let’s
that case, “They are not entitled to bail as a matter proceed.”
of tradition in the military!” Sarmiento: “No! We
are a government of laws, not a government of ISSUE: Is the accused already in
traditions.” Mag-isa lang siya, wala siyang custody? Can the court entertain his
nagawa. petition for bail even if he was not
arrested, and the lawyer said he was
PROBLEM: Tato is charged with a capital in the hospital and the court never
crime. So, no bail. Ayaw mag-surrender. Gusto bothered to ask a policeman to go
there, check, verify, bantayan mo yung deemed a waiver of his right to

be present thereat. In such
hospital until he gets well? case, the trial may proceed in
absentia; and
HELD: YES, he is already in the (d) The bondsman shall
surrender the accused to the
CONSTRUCTIVE custody of the law. court for execution of the
“It may be conceded that he had final judgment.
indeed filed his motion for admission The original papers shall
state the full name and address
to bail before he was actually and of the accused, the amount of
physically placed under arrest. He the undertaking and the
may, however, at that point and in the conditions required by this
section. Photographs (passport
factual ambience thereof, be size) taken within the last six
considered as being constructively and (6) months showing the face,
legally under custody. Thus, in the left and right profiles of the
accused must be attached to the
likewise peculiar circumstances which bail. (2a)
attended the filing of his bail
application with the trial court, for Q: So, for example in the MTC, you are
purposes of the hearing thereof he arrested, natalo ka, you will appeal. How about
should be deemed to have voluntarily pag-appeal mo sa RTC, what will happen to your
submitted his person to the custody of bail?
the law and, necessarily, to the A: Tuloy-tuloy pa rin yan because under
jurisdiction of the trial court which paragraph [a], your bail is effective up to the
thereafter granted bail as prayed for. RTC.
The undeniable fact is that
Panderanga was by then in the Q: Another example: na-convict ka sa RTC
constructive custody of the law. and you want to go to the CA, are you still
entitled to bail?
A: The answer is MAYBE. This is one
Q: What are the types of bail? instance where bail is discretionary.
A: There are four (4) types of bail under
Section 1: Q: But assuming that the court will say, “OK,
1. Corporate surety; you are entitled to bail on appeal.” What happens
2. Property bond ; now to your bail?
3. Cash deposit; and A: The GENERAL RULE is you get another
4. Recognizance. bail bond because your bail is only up to the level
of the RTC. This is back to the 1964 rules. In the
Q: What are the conditions of a bail? 85 Rules, iba naman – the bail is tuloy-tuloy up to
A: Section 2: the CA. Now, RTC level lang. You have to ask
for another bail bond if you want to go further to
SEC. 2. Conditions of the
bail; requirements. – All kinds
the CA. So, it’s back to the 64 rules ‘no?
of bail are subject to the
following conditions: Q: Paragraph [b] – you will appear before the
(a) The undertaking shall be
effective upon approval, and
proper court whenever required by the court or
unless cancelled, shall remain these rules. Normally, when is a person required
in force at all stages of the by the court to appear?
case until promulgation of the
judgment of the Regional Trial A: Generally, ARRAIGNMENT or
Court, irrespective of whether PROMULGATION lalo na pag convicted ka. But
the case was originally filed there are others for example, let’s read Rule 115
in or appealed to it;
(b) The accused shall appear Section 1 [c]:
before the proper court
whenever required by the court “(c) To be present and
of these Rules; defend in person and by counsel
(c) The failure of the at every stage of the
accused to appear at the trial proceedings, from arraignment
without justification and to promulgation of the
despite due notice shall be judgment. The accused may,
however, waive his presence at 1. When bail is a matter of right;

the trial pursuant to the
stipulations set forth in his 2. When bail is discretionary;
bail, unless his presence is 3. When bail is not available.
specifically ordered by the
court for purposes of
identification. x x x x x x” As a general rule, bail is a matter of right.
That is a constitutional right. And Section 4 tells
That is one instance where the court may us what are the instances when bail is a matter of
require his presence. His presence there is not a right.
privilege but an obligation.
Q: Now supposed you failed to appear in BAIL AS A MATTER OF RIGHT

court without justification. Like for example, you
escaped, you jumped bail and disappeared? Q: When is bail a matter of right?
What will happen to the case? A: Section 4:
A: Tuloy pa rin according to paragraph [c]
SEC. 4. Bail, a matter of
because that would be a waiver of your right. right; exception. – All persons
in custody shall be admitted to
Q: Anong tawag niyan? bail as a matter of right, with
sufficient sureties, or
A: TRIAL IN ABSENTIA pursuant to Section released on recognizance as
14, 2nd paragraph, Article 2 of the Constitution. prescribed by law or this Rule
(a)before or after conviction
by the Metropolitan Trial
Q: A bail bond required the bondsmen to pay Court, Municipal Trial Court,
the fine of the accused, in addition to the usual Municipal Trial Court in
condition. Is this additional condition valid? Cities, or Municipal Circuit
Trial Court, and (b) before
A: NO. The additional condition is void conviction by the Regional
because it made the obligation of the bondsmen Trial court of an offense not
more onerous, in violation of the constitutional punishable by death, reclusion
perpetua, or life imprisonment.
provision that no excessive bail shall be required (4a)
may not impose additional conditions because it
might prevent or render it impossible for the
accused to secure his liberty during the trial. Q: So you are charged in the MTC; no
(Bandoy vs. CFI of Laguna, 14 Phil. 620) conviction yet. So you are still an innocent. Are
you entitled to bail?
Q: A condition in a bail bond states that the A: Yes, as a matter of right.
sureties do not undertake to deliver the person of
the accused if the reading of the sentence is Q: Suppose you have been convicted already,
postponed to a later date, nor do they consent to found guilty by the MTC, maybe sentenced to 2
such extension. Is this condition valid? years imprisonment but you would like to appeal
A: YES, the condition is valid, because it is not to the RTC. While your appeal is going on, can
contrary to law or public policy, and, besides, it you still post bail?
lightens the obligation of the bondsmen, which is A: YES. Whether it is before or after
allowable. Conditions restricting liability on the conviction by the MTC, bail is a matter of right.
bond when accepted by the court and not
contrary to public policy are valid. (People vs. Q: But suppose you are charged in the RTC,
Wong Pun, 48 Phil. 713) for example homicide punishable by reclusion
temporal, are you entitled to bail?
SEC. 3. No release or
transfer except on court order A: YES, it is also a matter of right. For as long
or bail. – No person under as the prescribed penalty is not life
detention by legal process imprisonment, perpetua or death, it is a matter of
shall be released or
transferred except upon order right. So, up to reclusion temporal it is a matter of
of the court or when he is right.
admitted to bail. (3a)
Now, we go to these important issues on bail:

So based on the provision of law, let us try to Q: When is bail discretionary? Meaning, the
outline – court may grant bail or may not grant bail.
A: Section 5:
Q: When is bail a matter of right:
A: Bail is a matter of right – SEC. 5. Bail, when
discretionary. – Upon
1. Before conviction by the MTC, MTC, conviction by the Regional
or MCTC (Section 4 [a]); Trial Court of an offense not
2. After conviction by the MTC (Section 4 punishable by death, reclusion
perpetua, or life imprisonment,
[a]); admission to bail is
3. Before conviction by the RTC of an discretionary. The application
offense not punishable by death, for bail may be filed and acted
upon by the trial court despite
reclusion perpetua or life the filing of a notice of
imprisonment (Section 4 [b]) appeal, provided it has not
4. Before conviction by the RTC of an transmitted the original record
to the appellate court.
offense punishable by death reclusion However, if the decision of the
or life imprisonment when evidence of trial court conviction the
guilt is not strong. (People vs. Donato, accused changed the nature of
the offense from non-bailable
infra) to bailable, the application
for bail can only be filed with
and resolved by the appellate
Under the law, when a person charged in court.
court for example murder, non-bailable man yan x x x x
ba. What is the procedure under Section 8 if he
wants to post bail? He must file an application or Q: Supposed you are charged with homicide.
petition for bail. And that is when the The maximum penalty there is temporal. You are
prosecution will have to present evidence convicted. The court found you guilty of
immediately to prove that the evidence of guilt is homicide. It sentenced you to 20 years
strong. imprisonment and you would like to appeal. Can
you ask for bail?
Q: Suppose after hearing for the petition for A: YES.
bail, the court is convinced that the evidence of
guilt is not strong and the court said so, what Q: What will the court do?
happens now to bail? A: The court may or may not grant. Yan ang
A: Bail becomes a matter of right. (People vs. discretion.
Donato, 198 SCRA 130)
Now, the second sentence is new:
PEOPLE vs. DONATO
198 SCRA 130 The application for bail may be
filed and acted upon by the trial
court despite the filing of a
HELD: “If the offense charged is notice of appeal, provided it has
punishable by death, reclusion not transmitted the original record
to the appellate court. (Section 5,
perpetua or life imprisonment, bail
first paragraph, second sentence)
becomes a matter of discretion. It shall
be denied if the evidence of guilt is This is a reversal of a ruling in the case of
strong. The court's discretion is limited
to determining whether or not OMOSA vs. COURT OF
evidence of guilt is strong. But once it APPEALS
is determined that the evidence of 266 SCRA 281, January 16, 1997
guilt is not strong, bail also becomes a
matter of right.” FACTS: The court convicted the
accused for homicide. So temporal.
The accused said: “Your honor, we
BAIL AS A MATTER OF DISCRETION intend to appeal this case but may we
be asked to post bail while the appeal
is going on. The court said, “Granted! This is also a recognition and modification of
[discretionary man!]. We will fix your the ruling of Omosa vs. CA, supra.
bail at P50,000.” Two days before, the
accused filed a notice of appeal. After In the case of Omosa, the accused was charged
filing the notice of appeal, he applied with murder – non-bailable. But after the trial the
for bail which was approved by the court convicted him only for homicide, a lesser
court. offense. And homicide is bailable – discretionary
in the court. If he was convicted for murder, wala
ISSUE: Can the court approve the talagang pag-asa. But he was convicted for
bail? homicide. So he applied for bail. And the court
granted the bail. And the SC said the trial court
HELD: NO, because when the should not grant bail because the accused is
accused filed his notice of appeal, from appealing. For all you know on appeal, the
that very moment the court has lost appellate court may reinstate the original charge
jurisdiction over the case. Dapat, for murder because when you appeal, the whole
inuna muna yung approval of bail case is open for review. So, because of the
bago mag-file ng notice of appeal. possibility that the penalty of murder would be
When the court fixed the bail, he has imposed, then there should be no bail. That was
must not yet filed his notice of appeal, the ruling of Omosa vs. CA.
so the court has the power to fix the
bail. The trouble is he immediately Now, of course it is now modified in the sense
filed a notice of appeal bago niya ging- that, bail could be granted in that situation
post ang bail. So the court has no more because he was charged with a non-bailable
jurisdiction to approve the bail. It offense but found guilty of bailable offense.
should have been approved by the However, if there is any court which should grant
Court of Appeals. the bail, it should be the CA and not the trial
court. So these are new provisions which were
That is the ruling in the Omosa. Obviously, somehow taken from the ruling in Omosa which
the SC wanted to change it. The application for is also now modified. That is the history of that
bail may still be filed and acted upon by the trial provision.
court despite the filing of a notice – that is a
modification of the Omosa ruling – Puwede, Alright. Now let us go to the second
provided it has not transmitted the original paragraph:
record. Based on the Omosa ruling, once the
notice of appeal is filed, the trial court has no Should the court grant the
application, the accused may be
more jurisdiction to act on the application for bail. allowed to continue on
provisional liberty during the
But NOW under the NEW RULES, puwede pendency of the appeal under
the same bail subject to the
pa even if there is already a notice of appeal on consent of the bondsman.
the condition that the records are still with the (Section 5)
RTC. If the records are already in the appellate
court, you better apply for bail before the Court That is more or less an exception to Section
of Appeals. 2[a] that we already discussed. When you are
charged in the RTC and you post bail, the bail is
Now the next sentence good up to when? The bail is only valid in the
RTC. If you want to appeal, and the court grants
However, if the decision of bail on appeal, you have to post another bail.
the trial court conviction the
accused changed the nature of
the offense from non-bailable But this provision grants the court the
to bailable, the application authority to say, “Alright, your bail which you
for bail can only be filed with
and resolved by the appellate posted here will continue.” Nasa court yan kung
court. (Section 5, first gustong ipatuloy. Puwede rin yun. Ok. We will
paragraph, last sentence) continue, subject to the consent of the bondsman.
That is now the condition. The bondsman may
say, “Delikado na ito, baka ma-convict na ito. committed an offense while under probation,
Mamaya baka lumayas na ito at tumakbo, patay parole or conditional pardon; or when the
na ako. Ako ang magbabayad.” circumstances of the case indicates the probability
of flight (there is a risk ba!); or there is an undue
Alright, let us go now to the next sentence: risk that the you might commit another crime
during the pendency of the appeal, the court will
If the penalty imposed by not grant the bail. The discretion there will not be
the trial court is imprisonment
exceeding six (6) years, the in your favor. If the court has already granted, the
accused shall be denied bail, bail will be cancelled. Take note of that.
or his bail shall be cancelled
upon a showing by the
prosecution, with notice to the Q: When is bail discretionary?
accuse, of the following or A: Based on that provision, after conviction by
other similar circumstances: the RTC of an offense not punishable by death,
(a) That he is a recidivist,
quasi-recidivist, or habitual reclusion perpetua or life imprisonment, provided
delinquent, or has committed the case does not fall under Section 5, third
the crime aggravated by the paragraph [a]-[e] of the same law because once
circumstance of reiteration;
(b) That he has previously the case falls under any of these, no bail even if it
escaped from legal confinement, is a matter of discretion.
evaded sentence, or violated
the conditions of his bail
without valid justification; Take note of the second instance – bail as a
(c) That he committed the matter of discretion. The first instance is when
offense while under probation,
parole, or conditional pardon;
bail is a matter of right – Section 4. When is bail
(d) That the circumstances discretion – Section 5. Yung Section 4, walang
of his case indicate the problema, that is absolute even if you are a
probability of flight if
released on bail; or
recidivist.
(e) That there is undue risk
that he may commit another CASE: The accused was charged with
crime during the pendency of
the appeal.
homicide, there was no conviction yet. And then
The appellate court may, bail. He jumped bail – lumayas! But he was
motu proprio or on motion of arrested again. When arrested apply na naman
any party, review the
resolution of the Regional
for bail. Binigyan na naman ng bail. After a few
Trial Court after notice to the months, layas na naman. He escaped again.
adverse party in either case. Nahuli na naman. And then he applied for bail
(5a)
for the third time. This time, sabi ng judge,
“Ayaw ko na. Because of your character, di na
Alright. Let us go back to the basic:
puwede for jumping bail twice already. I will not
grant you bail.” And he questioned it before the
What is the jurisdiction of the RTC? The
court. Is the denial of bail correct because of the
penalty is 6 years and 1 day up to death.
past record of the accused?
The SC said NO because the bail is a matter
If the penalty is prision mayor to reclusion
of right. He falls under Section 4 there. Wala
temporal [6 yrs and 1 day to 20 years] yan, sa
pang conviction. Even if he jumps bail 100 times
phrase na yan, bail could be granted on appeal
you cannot deny him bail for as long as the crime
but it is discretionary. However, even if the bail
is not punishable by perpetua to death. (Sy Guan
is granted the prosecution tells the court, “Judge,
vs. Amparo, 79 Phil. 670; People vs. Alano, 81
this guy was found guilty of homicide and you grant
Phil. 19)
bail. Iba pala ito eh because he is a recidivist, or etc or
any of the conditions mentioned in [a] – [e],” the
Q: What is the remedy to this kind of
court will now cancel the bail.
accused? Remedy?
A: Taasan mo ang bail. So magkano bail mo
So bail is discretionary provided it will not
dati? P30,000? Alright, ngayon P70,000 na!
fall under [a], [b], [c], [d], or [e]. You are a
Tingnan natin kung tatakbo pa yan. [putulin kaya ang
recidivist; you are habitual delinquent; you have
paa?] Previous abscondence or escape is not a
previously escaped from a confinement; you have
ground for the denial of the bail; it merely gives
the court discretion to increase the amount of the Bail is discretionary because of this paragraph 3 –
bond as will reasonably tend to assure the if the penalty imposed by the trial court is
presence of the accused. (Sy Guan vs. Amparo, 79 imprisonment exceeding 6 years the accused
Phil. 670; People vs. Alano, 81 Phil. 19) should be denied bail or bail should be cancelled
upon showing by the prosecution with notice of
Now, I am amused by what happened in the accused of the following. Therefore, bail
Section 5. Did you hear the promulgation of the could be granted because the penalty is exceeding
Robillo case one month ago? I don’t know how 6 years.’”
many were convicted. I think 3 or more were
convicted. One of them is a radioman. I know That implies that bail is discretionary because
where he hangs around. One day before the in Section 5, the heading is “Bail, when
promulgation, he is no longer hanging around. discretionary” so hindi cancelled. I said,
He disappeared already, na-amoy na niya siguro. “Tingnan mo ang opening paragraph of Section 5
Some were military men. – upon conviction of the RTC of an offense not
punishable by death, perpetua or life
They were convicted. At least one of them imprisonment, admission to bail is discretionary.
was acquitted. Many were convicted. The So itong paragraph 3, upon 6 years but less than
penalty was reclusion perpetua. And after the trial perpetua. So up to 20 years. We have to connect
everybody left, including the convicted accused. I paragraph 3 with the first paragraph. Sabi niya
was visiting the jail the following day. The (clerk of court), “This is what I know eh. Since I
warden was telling me, “What happened to this am new in this job. I cannot insist.” Dean I:
case? Since yesterday we were expecting the “Sabihin mo sa judge na nagkamali sya. Ako ang
convicted person to be brought here. Convicted nagsabi.” And after 2 days, pinacancel niya
eh.” (judge).
So I asked the fiscal kung anong nangyari I’ve talked that judge. He was my friend
dyan because from what we know, if you are personally. When I see him sabi ko nagkamali ka
found guilty for murder, for example, and man dun ba. Dapat yun, on the spot. That’s why
sentenced to reclusion perpetua on the spot, you everybody is wondering bakit nakaganun yun.
will be sent to jail. “Teka muna! Hindi pa final yung Well, that was his first experience with a capital
conviction!” Never mind! You can appeal but you heinous crime. Dio siya naiiba eh. He’s not used
are now detained indefinitely. Wala nang labas to trying this kind.
labas ‘yan. From the court room, diretso ka na sa
jail. “But the judgment is not yet final?” But there’s Yung sasabihin mong bail may continue –
already the judgment of conviction. Even when that assumes that the penalty is above 6 years but
there’s still no of conviction, when the evidence of not more than 20 years. Pag naging perpetua,
guilt is strong, your bail will be denied. Even in wala na. Yung wala pang conviction bail could
the middle or at the start of the case, if the be denied, lalo na pag may conviction na! The
evidence of guilt is strong, bail will be denied lalo evidence of guilt is now strong! It’s simple logic.
na kung capital punishment. How much more That is why this provision will be tricky if we do
here when there is already a judgement of not know how to interpret this rule.
conviction?! Logic! simple logic.
And the branch clerk of court, I think you WHEN BAIL IS DENIED
know her – Atty. Morales. She called me up in the
office. Sabi niya, “Anong nangyari dito? di ba
walang bail yan?”. Sabi ko “Yes”. I wonder bakit SEC. 6. Capital offense
defined. – A capital offense is
walang bail. Bakit hindi ikinancel? Kailangan an offense which, under the law
daw i-cancel pa ang bail. That was what the existing at the time of its
judge said. Sabi ko, NO! The bail is automatically commission and of the
application for admission to
cancelled. That is what I said so. bail, may be punished with
death. (6a)
Sabi niya (clerk of court), “I was pointing to
the judge Section 5. Eh sabi niya (judge), ‘No.
Take note that the crime is punishable by

DEATH not only at the time of its commission Arestado ka, nakulong ka. Under the law,
but also at the time of the application for bail. The what is the procedure? You file an application for
law uses the conjunction “and.” C.f. RA 7659 gives bail. And once an application for bail is filed, it is
us a list of capital offenses. now MANDATORY for the court to conduct a
hearing for the prosecution to present evidence to
SEC. 7. Capital offense or prove that the guilt is strong, not guilt beyond
an offense punishable by
reclusion perpetua or life reasonable doubt because the latter is conviction
imprisonment, not bailable. – na yan!
No person charged with a
capital offense, or an offense
punishable by reclusion Ang ibig sabihin niyan, mag-sample ka lang.
perpetua or life imprisonment, You present some of the witnesses but not all.
shall be admitted to bail when Sample-an mo lang ba. Parang preliminary
evidence of guilt is strong,
regardless of the state of the injunction ba! You present some of your
criminal prosecution. (7a) evidence. after that, the court will now consider
whether the evidence of guilt is strong or not
This means if the accused is charged with a strong.
crime which is punishable by death, reclusion
perpetua, or life imprisonment, there is NO BAIL Either way the court will grant bail or deny
even at the start of the trial or even before bail – tuloy pa rin ang trial! Yaan!
judgment of conviction, provided that the two (2)
conditions are present. Q: What happens now to those witnesses?
Balik na naman sila sa trial?
“xxx regardless of the state of the criminal A: NO. Under Section 8, the evidence received
prosecution.” Meaning, NO BAIL before during the bail hearing is automatically
conviction. Lalo na pag after conviction! reproduced at the trial. Di na kailangang ulitin
pa. But you can add more witnesses and more
That’s why I told (Atty.) Evalyn Morales na evidence.
ipakita mo [sa judge] yung Section 7 – “xxx
regardless of the state of criminal prosecution.” After that, we will now determine if the
You already found him guilty beyond reasonable accused is guilty or not guilty. Yan na ang guilt
doubt and sentenced him to perpetua, huwag mo beyond reasonable doubt.
sabihing ‘the evidence of guilt is not strong’! How
come you convict him?! Yaan! Now, [Atty.] Ceniza had a problem in Davao
Oriental. He told me about it. An offense is, I
Now, this is where lalabas yung application think punishable by perpetua or higher. Then pag-
for bail – Section 8: hingi ng bail, sabi ng prosecutor, “No objection!”
Siguro sabi ng court, “No objection? O sige, grant
SEC. 8. Burden of proof in
bail!” The prosecutor did not present evidence.
bail application.– At the
hearing of an application for Meaning, the prosecutor admits that the evidence
bail filed by a person who is of guilt is not strong – wala ng hearing!
in custody for the commission
of an offense punishable by
death, reclusion perpetua, or Puwede ba yan? NO! The SC said that there
life imprisonment, the must be a hearing. Even if the prosecution will
prosecution has the burden of
showing that evidence of guilt
not want to present evidence, the court must
is strong. The evidence require a hearing. And the court cannot dispense
presented during the bail with the hearing.
hearing shall be considered
automatically reproduced at the
trial but, upon motion of Let’s go to some decided cases.
either party, the court may
recall any witness for
additional examination unless
TUCAY vs. JUDGE DOMAGAS
the latter is dead, outside the [Adm. Matter No. RTJ-95-1286]
Philippines, or otherwise March 2, 1995
unable to testify. (8a)
HELD: “Although the Provincial Meaning, if you grant or deny bail, may court
Prosecutor had interposed no order yan. Kailangang i-summarize mo ang
objection to the grant of bail to the evidence. then you state why you believe it is
accused, respondent judge should strong or it is weak. Otherwise the judge is
nevertheless have set the petition for administratively liable for not complying with the
bail for hearing and diligently requirement.
ascertained from the prosecution
whether the latter was not really
contesting the bail application.”
“He should have called a hearing AURILLO vs. FRANCISCO
for the additional reason of taking into 235 SCRA 283
account the guidelines in Rule 114 in
fixing the amount of the bail. Only HELD: In a hearing for
after satisfying himself that the petition for bail, affidavits will not
prosecution did not wish to oppose suffice. Witnesses must be present
the petition for bail for justifiable to testify. Affidavits will suffice
cause (e.g., for tactical reasons) and only when it determines probable
taking into account the factors case for the purpose of whether or
enumerated in Rule 114, sec. 6 for not to issue search warrant. The
fixing bail should respondent judge judge has the personal duty of
have granted the petition for bail and calling the witnesses one by one to
ordered the release of the accused.” hear them for or review the
evidence, i.e. affidavits presented
Assuming na sabi ng prosecution, “for tactical at the fiscal’s office.
reason, we will not object.” The court will still have “Verily, it was patent error for
to conduct a hearing – kung pila ang bail. Yaan! him to base his order granting bail
You still have to conduct a hearing. You look at merely on the supporting
Section 9 – Amount of bail; guidelines. In affidavits attached to the
determining how much is the bail, may mga information since those were
guidelines eh! So if we will grant bail, at least we merely intended to establish
will have to find out how much. These guidelines probable cause as basis for the
must be met. So you still have to conduct a issuance of an arrest warrant, and
hearing. not to control his discretion to
deny or grant bail in all situations”
GUILLERMO vs. JUDGE REYES,

JR. AGUIRRE vs. JUDGE
January 18, 1995 BELMONTE
October 27, 1994
HELD: “A hearing, in the nature of
a summary proceeding entailing HELD: “Even if the prosecution
judicial determination is required fails to adduce evidence in opposition
where the grant of bail is addressed to to an application for bail of an
the discretion of the court. The accused, the court may still require
prosecution should be given the that it answer questions in order to
opportunity to adduce evidence ascertain not only the strength of the
thereat after which the court should state's evidence but also the adequacy
then spell out at least a summary or of the amount of bail.”
resume of the evidence on which the
order, whether it be affirmative or So kahit na sabihin pa ng prosecution that it is
negative, is based. Otherwise, the not opposing in the application of the bail, sabi ng
order is defective or voidable.” SC: Ah, hindi puwedee! The court will have to
ask the prosecution, why are you not opposing?
Yaan! Whether to grant or deny bail, a hearing is
a 100% requisite. Otherwise the order granting or bail hearing would be to render a
denying bail is defective, and the judge may lose decision. That would defeat the
his job. purpose of the hearing for bail.
ISSUE: #2: Whether or not Bravo,

Let’s go to this important question: Jr. is entitled to bail.
Q: For bail to be denied, what are the HELD: YES. Although the
requirements? presentation of aggravating and
A: Under the law: mitigating circumstances is NOT
1. the evidence of guilt is strong; allowed, the SC said, However, we
2. the crime is punishable by death, cannot close our eyes to the fact that
reclusion perpetua or life imprisonment; when Bravo, Jr. committed the crime
3. [based on jurisprudence] if the he was only 16 years old. Normally,
accused is convicted in all probability we close our eyes, but in this case, we
the penalty will also be death, reclusion cannot close it because he alleged it. As a
perpetua or life imprisonment. matter of fact, his birth certificate was
attached to this petition and the
prosecution DID NOT challenge his
So you have to look at the probable penalty. minority. Since the plea of minority is
This principle has been illustrated in the case of already before us and the accused did
not challenge it, we cannot close our
BRAVO, JR. vs. BORJA eyes to the fact that even if we fin him
134 SCRA 466 guilty, the penalty to be imposed
would not be reclusion perpetua or
FACTS: The accused was charged death but lower. Since the probable
with murder – perpetua to death – penalty is not death or perpetua, then
talagang non-bailable yan. The he is entitled to bail as a matter of
accused filed a petition for bail where right.
the case is pending on the argument
that when he committed a crime, he
was only 16 years old. He attached his Q: So what are the principle points to
birth certificate in the application for remember in the case of Bravo, Jr?
bail. Sabi niya, if found guilty, the A: The following:
penalty is automatic one (1) degree 1. that in a petition for bail there should
lower – so, temporal. The worst that be no evidence of any aggravating or
will happen to him is temporal. mitigating circumstances. It should
Therefore, bail now becomes a matter not be presented in a petition for bail.
of right. This should be presented during the
trial;
ISSUE #1: In the hearing for bail, 2. however, despite the fact that it should
should the court allow the not be presented, if it is alleged and
presentation of evidence of mitigating presented there and the prosecution
or aggravating circumstances? did not dispute it, the court should
consider it just the same; and
HELD: NO. Bravo, Jr. is wrong. In 3. even if the accused is charged with a
the hearing for a petition for bail, the crime punishable by death, perpetua or
presentation of aggravating and life imprisonment and the evidence of
mitigating circumstances is NOT guilt is strong, if the probable
covered because if the court will imposable penalty is less than perpetua,
required the presentation of said bail becomes a matter of right.
circumstances, then there would be a
need for a trial on the merits of the
case. All the court has to do after the
PEOPLE vs. CALO 1. Before conviction by the MTC, MTC,

186 SCRA 620 [1990] or MCTC;
2. After conviction by the MTC;
FACTS: Three (3) people were 3. Before conviction by the RTC of an
accused of murder for the death of the offense not punishable by death,
victim. The prosecution reclusion perpetua or life imprisonment;
recommended no bail. After a hearing and
to determine whether the evidence of 4. Before conviction by the RTC of an
guilt is strong, the trial court issued offense punishable by death reclusion
the order granting bail. The son of the or life imprisonment when evidence of
victim went to the SC questioning the guilt is not strong. This is because once
order granting the bail of the accused. the court finds that the evidence of
guilt is strong, bail becomes a matter
ISSUE: Whether or not the son of of right.
the victim has sufficient legal
personality to question the order Q: When is bail DISCRETIONARY?
granting bail? (Normally, if there is A: Bail is discretionary after conviction by the
anyone who should question it, it RTC of an offense not punishable by death,
should be the Solicitor General reclusion perpetua, or life imprisonment provided,
representing the people of the the case does not fall under the 3rd paragraph of
Philippines) Section 5 [a] – [e].
HELD: While the rule is, only the Q: When shall bail be DENIED?
Solicitor General may represent the A: The bail shall be denied under the
People or the State in criminal following instances:
proceedings pending in this Court and 1. before conviction by the RTC of an
the Court of Appeals, the ends of offense punishable by death, reclusion
substantial justice would be better perpetua or life imprisonment when the
served, and the issues in this action evidence of guilt is strong;
could be determined in a more just, 2. after conviction by the RTC and the
speedy and inexpensive manner, by penalty imposed is death, reclusion
entertaining the petition at bar. As an perpetua or life imprisonment. He can
offended party in a criminal case, appeal but in the meantime, there is
private petitioner has sufficient no bail; and
personality and a valid grievance 3. after conviction by the RTC where the
against the judge's order granting bail penalty imposed is imprisonment
to the alleged murderers of his exceeding 6 years but no more than 20
(private petitioner's) father. years, and the case falls under Section
5 [a] – [e].
So, the case of Calo was considered an So, recidivist, or you escaped from
exception because he is also an aggrieved party – confinement, or there is undue risk, etc. ayan!
the aggrieved parties are the People and the Pagnahulog ka diyan, bail shall not be granted.
family of the victim. So in this case, the son is also And this is where the question of Ms.
an aggrieved party. Masepequeña will come in:
So based on what we have gone so far, let us Q: Mr. Peloton was charged with a crime
now try to summarize the instances under Rule (sorry kaayo Gay! ) punishable by temporal. He
114 where bail is a matter of right, discretion, or is was convicted but the penalty is 6 years or less
denied. (for instance, there are mitigating
circumstances) and he wants to appeal to the CA.
Q: When is bail a MATTER OF RIGHT: Is it a matter of right or a matter of discretion?
A: Bail is a matter of right – A: My view is, it is a matter of discretion but
even if these circumstances (recidivist, etc.) still
bail can be granted. That is the effect. Whereas, if corporation duly authorized by
its board of directors. (10a)
the penalty is 6 years 1 day to 20 years and he is a
recidivist, etc., bail shall not be granted. But if it is
Q: What do you mean by a property bond?
only 6 years or less, it may be granted although it
A: Section 11:
is not a matter of right.
SEC. 11. Property bond, how
SEC. 9. Amount of bail; posted. – A property bond is an
guidelines. – The judge who undertaking constituted as lien
issued the warrant or granted on the real property given as
the application shall fix a security for the amount of the
reasonable amount of bail bail. Within ten (10) days
considering primarily, but not after the approval of the bond,
limited to, the following the accused shall cause the
factors: annotation of the lien on the
(a) Financial liability of certificate of title on file
the accused to give bail; with the Registry of Deeds if
(b) Nature and circumstance the land is registered, or if
of the offense; unregistered, in the
(c) Penalty for the offense Registration Book on the space
charged; provided therefore, in the
(d) Character and reputation Registry of Deeds for the
of the accused; province or city where the land
(e) Age and health of the lies, and on the corresponding
accused; tax declaration in the office
(f) Weight of the evidence of the provincial, city and
against the accused; municipal assessor concerned.
(g) Probability of the Within the same period, the
accused appearing at the trial; accused shall submit to the
(h) Forfeiture of other court his compliance and his
bail; failure to do so shall be
(i) The fact that the sufficient cause for the
accused was a fugitive from cancellation of the property
justice when arrested; and bond and his re-arrest and
(j) Pendency of other cases detention. (11a)
where the accused is on bail.
Excessive bail shall not be SEC 12. Qualifications of
required. (9a) sureties in property bond. –
The qualifications of sureties
Q: When bail shall be granted, how much is in a property bond shall be as
follows:
the amount of it? (a) Each must be a resident
A: There are guidelines under Section 9 – owner of real estate within the
marami eh! Of course one of the factors is Philippines;
(b) Where there is only one
paragraph [c] – penalty for the offense charged. surety, his real estate must be
That’s why the DOJ has a guidelines eh na kapag worth at least the amount of
ganito ang penalty, ganito a ng i-recommend mo. undertaking;
(c) If there are two or more
But that is only one of the factors. The court can sureties, each may justify in
either follow the recommendation or raise it or an amount less than that
lower it because aside from that, marami pa eh expressed in the undertaking
but the aggregate of the
like financial ability of the accused, character or justified sums must be
reputation of the accused, etc. And all these equivalent to the whole amount
guidelines where taken from the ruling in the of the bail demanded.
In all cases, every surety
case of VILLASEÑOR VS. ABANO (21 SCRA 312) must be worth the amount
specified in his own
Q: What do you mean by corporate surety? undertaking over and above all
just debts, obligations and
A: Section 10: properties exempt from
execution. (12a)
SEC. 10. Corporate surety. –
Any domestic or foreign SEC. 13. Justification of
corporation, licensed as a sureties. – Every surety shall
surety in accordance with law justify by affidavit taken
and currently authorized to act before the judge that he
as such, may provide bail by a possesses the qualification
bond subscribed jointly by the prescribed in the preceding
accused and an officer of the section. He shall describe the
property given as security, custody of the mayor. Kung may problema, or anytime
stating the nature of his
title, its encumbrances, the you are required to appear, you appear!” And the
number and amount of other mayor will promise, “Akong bahala dito. Hindi ito
bails entered into by him and tatakbo [puputulan ko ng paa!] Sagot ko ito.” – Yan ang
still undischarged, and his
other liabilities. The court recognizance – word of you word or word of a
may examine the sureties upon responsible person.
oath concerning their
sufficiency in such manner as
it may deem proper. No bail Para bang character loan – you borrow
shall be approved unless the money, no collateral and I promise to pay you.
surety is qualified. (13a) Creditor: “Believe ako sa iyo. Your word is as
good as a security. OK!”
Q: What do you mean by cash deposit?
A: Section 14: Q: Is recognizance possible in all criminal
cases?
SEC. 14. Deposit of cash as
bail. – The accused or any A: NO. Under the rules, recognizance is only
person acting in his behalf may allowed whenever allowed by law or these Rules. So,
deposit in cash with the if it is not allowed by law or the rules, hindi
nearest collector of internal
revenue or provincial, city, or puwede.
municipal treasurer the amount
of bail fixed by the court, or Q: How do you define recognizance?
recommended by the prosecutor
who investigated or filed the A: A recognizance is an obligation of record,
case. Upon submission of a entered into before some court or magistrate duly
proper certificate of deposit authorized to take it, with the condition to do
and a written undertaking
showing compliance with the some particular act, the most usual condition in
requirements of section 2 of criminal cases being the appearance of the
this Rule, the accused shall be accused for trial. (People vs. Abner, 87 Phil. 566,
discharged from custody. The
money deposited shall be 569)
considered as bail and applied
to the payment of fine and
The next question is, what are the instances
costs while the excess, if any,
shall be returned to the where recognizance is allowed by the law or this
accused or to whoever made the Rules? There are four (4) instances originated and
deposit. (14a)
as mentioned by the SC in the 1997 case of
ESPIRITU VS. JOVELLANOS (280 SCRA 579). But
even before JOVELLANOS came out, the 1985
RECOGNIZANCE Rules says that recognizance is possible if
allowed by law or the Rules. Ano man yang “by
Let’s go to the 4th type of bail – recognizance law or this Rules”? So as early as 1985, I was
– which are not understood by many how it already gathering the instances when the law or
operates. the rules allow it. And I gathered four (4). Meron
SEC. 15. Recognizance. –
pa man sigurong iba, pero di ko pa siguro nakita.
Whenever allowed by law or That is why when the case of Jovellanos came out,
these Rules, the court may tiningnan ko – exactly the very four! – not more,
release a person in custody on
his own recognizance or that of
not less. [ehem! ehem!]
a responsible person. (15a)
Q: What are the instances when recognizance
So, no money – nothing is filed in court. “On is allowed by the law or this Rules?
my word of honor, I will appear when the court A: In the case of ESPIRITU VS. JOVELLANOS
requires me to appear. If I’m convicted, don’t be (280 SCRA 579):
afraid. I will not runaway.” Court: “Word of honor
ha? [promise ha] OK!” – Yan! Yan ang recognizance. 1. Under RA 6036 – when the offense
charged is for violation of an
Or, instead of going to jail, “Payag man ang ordinance, a light felony, or a criminal
mayor na doon na lang daw ako sa kanya. Siya daw offense, the imposable penalty for
ang bahala sa akin.” Court: “OK. You will be in the which does not exceed 6 months
imprisonment and/or P2,000 fine, recognized him because he was a graduate of this
under the circumstances provided in school. Anyway I’m not in a hurry, I went there.
R.A. No. 6036; So I met this lawyer and I gave my name. ATTY:
“Uy! You! We did not see each other for a long time.
2. Rule 114, Section 16, last paragraph: Kumusta? [videoke ta!]” DEAN: “I was just passing by.
What are you doing now? [na kay fundador diha?]” ATTY:
“A person in custody for “I’m practicing law. Karamihan criminal.” And I
a period equal to or more
than the minimum of the noticed marami siyang helpers sa bahay niya. So I
principal penalty prescribed asked him, “Ba’t karami mo namang houseboys?”
for the offense charged, ATTY: “They are not houseboys, Sir. They are all
without application of the
Indeterminate Sentence Law accused!” DEAN: “Why are they with you?” ATTY:
or any modifying “Recognizance.” DEAN: “Ano pala mga crimes
circumstance, shall be nila?” ATTY: “Murder, Homicide.” Na-shock ako!!
released on a reduced bail
or on his own recognizance, Paano nakakuha ng recognizance ito eh hindi
at the discretion of the man puwede yan because recognizance is only
court.” possible if allowed by law or the rules. Pero
nobody is complaining naman there.
3. Rule 114, Section 24:
“No bail shall be allowed SEC. 16. Bail, when not

after a judgment of required; reduced bail or
conviction has become final. recognizance. – No bail shall
If before such finality, the be required when the law or
accused applies for these Rules so provide.
probation, he may be allowed When a person has been in
temporary liberty under his custody for a period equal to
bail. When no bail was filed or more than the possible
or the accused is incapable maximum imprisonment prescribed
of filing one, the court may for the offense charged, he
allow his release on shall be released immediately,
recognizance to the custody without prejudice to the
of a responsible member of continuation of the trial or
the community. In no case the proceedings on appeal. If
shall bail be allowed after the maximum penalty to which
the accused has commenced to the accused may be sentenced is
serve sentence.” destierro, he shall be released
after thirty (30) days of
4. Under PD 603 (Child and Youth preventive imprisonment.
A person in custody for a
Welfare Act) – in case of a youthful period equal to or more than
offender held for physical and mental the minimum of the principal
examination, trial, or appeal, if he is penalty prescribed for the
offense charged, without
unable to furnish bail and under the application of the
circumstances envisaged in P.D. No. Indeterminate Sentence Law or
603, as amended. any modifying circumstance,
shall be released on a reduced
bail or on his own
Those are the four instances where recognizance, at the discretion
recognizance is allowed. So it is not possible in all of the court. (16a)
cases.
Let’s go further. As a general rule, when the
This reminds of a former student of this law criminal case is filed, there will be warrant of
school who graduated way back in 1977. He is arrest. If there is warrant of arrest, there must be a
from Agusan. I remember during the mid-80’s, I bail either in cash or recognizance. But Section 16
went to Cagayan. Wala pa itong Buda, so I have provides that no bail shall be required when the
to travel via Butuan. On my way back at around 4 law or these Rules so provide. This is now the
P.M., we were riding in a private vehicle, we question:
stopped at a town in Agusan. We took a break
kay kapoy eh. There were numerous big houses Q: What are the instances where despite the
there. And then I saw this attorney so and so and I pendency of the criminal case, the accused is not
required to post bail? Meaning, he is exempt from
putting up a bail bond because the law or the Any person in custody who is
not yet charged in court may
rules says so. apply for bail with any court
A: The following are the instances: in the province, city, or
municipality where he is held.
(17a).
1. Under RA 6036 – yung mga 6 months
or less under the conditions
Section 17 is another important provision on
mentioned therein;
where to file the bail. Normally, you file the bail
before the same court where you case is pending.
2. When the crime is covered by the
But if the judge is not around, under paragraph
Summary Rules because of Section 16
[a], puwede man any RTC judge, MTC judge, etc.
of Rule 114. When a case is filed under
the Summary Rules, a mere notice is
Q: Suppose your case is in Davao and you are
sufficient. No need of a warrant of
arrested in Manila, can you post bail in Manila?
arrest.
A: YES because it would be very tedious if
you will be arrested and brought back in Davao
3. Section 9 [b] of Rule 112 (this is a new
just to post bail. And under paragraph [a], it may
sentence):
be filed with any RTC of such place. And of
“x x x x However, if course, the judge there will accept the bail and
the judge is satisfied transmit everything to Davao.
that there is no
necessity for placing the
accused under custody, he Q: What are the instances where the accused
may issue summons instead is only allowed to post bail before the very same
of a warrant of arrest.” court where the case is pending?
A: Under paragraph [b], the following are the
So, the court is satisfied that there instances:
is no need to issue a warrant of arrest
maybe because the court believes that 1. if you seek to be released on
you will not run away. In effect, no recognizance, no other judge can grant
bail shall be required. it other the judge where you case is
pending;
SEC. 17. Bail, where filed.
– (a) Bail in the amount fixed 2. when bail is a matter of discretion. For
may be filed with the court example: Ms. Tormon is accused of a
where the case is pending, or capital offense and she would like to
in the absence or
unavailability of the judge file a petition for bail because the
thereof, with any regional evidence of guilt is not strong, that
trial judge, metropolitan trial should be decided by the very court
judge, municipal trial judge,
or municipal circuit trial where her case is pending.
judge in the province, city or
municipality. If the accused is
arrested in a province, city,
or municipality other than Q: Is the MTC entitled to entertain a petition
where the case is pending, bail for bail?
may also be filed with any A: YES
regional trial court of said
place, of if no judge thereof
is available, with any Q: What are the instances when a MTC is
metropolitan trial judge, entitled to entertain applications for bail?
municipal trial judge, or
municipal circuit trial judge A: The following are the instances:
therein.
(b) Where the grant of bail 1. Under paragraph [b], the application
is a matter of discretion, or
the accused seeks to be may be filed in the court where the
released on recognizance, the case is pending, whether on
application may only be filed
preliminary investigation, trial, or
in the court where the case is
pending, whether on preliminary appeal. With this provision, it would
investigation, trial, or seem puwede;
appeal.
to docket it. Basta that is my right under the law!

2. MTC can entertain petitions for bail in So you think of your own caption.
cases not cognizable by it filed before it
for purposes of preliminary SEC. 21. Forfeiture of bail.
– When the presence of the
investigation. That is why in one case accused is required by the
the SC held that inferior courts (MTC) court or these Rules, his
can entertain applications for bail in bondsmen shall be notified to
produce him before the court on
capital offenses as an incident to its a given date and time. If the
power to conduct preliminary accused fails to appear in
investigation. (Manigbas vs. Luna, 98 person as required, his bail
shall be declared forfeited and
Phil. 466); and the bondsmen given thirty (30)
days within which to produce
3. Section 35 of the Judiciary law (Special their principal and to show why
no judgment should be rendered
jurisdiction of the MTC) –the MTC against them for the amount of
may hear and decide petitions for a their bail. Within the said
writ of habeas corpus or applications for period, the bondsmen must:
(a) produce the body of
bail in the absence of ALL the RTC their principal or give the
judges. reason for his non-production;
and
(b) explain why the accused
Let’s go now to the last paragraph of Section did not appear before the court
17: when first required to do so.
Failing in these two
requisites, a judgment shall be
“Any person in custody who
rendered against the bondsmen,
is not yet charged in court may
jointly and severally, for the
apply for bail with any court
amount of the bail. The court
in the province, city, or
shall not reduce or otherwise
municipality where he is held.”
mitigate the liability of the
bondsmen, unless the accused
This is one provision that has stunned so has been surrendered or is
acquitted. (21a)
many: how can a person be in custody who is not
yet charged in court? He is already in custody
pero wala pa mang kaso? What is contemplated Another important provision is Section 21 –
under the last paragraph of Section 17 is Rule 112 how bail is forfeited.
Section 7 on INQUEST preliminary investigation
– when a person is lawfully arrested without a If you are required to appear in court for an
warrant, he will be detained immediately without arraignment, or for some other reason, and you
preliminary investigation. But if he demands a did not appear, the first step is, upon motion of
preliminary investigation, he can get it but he the prosecution, the court will issue an order to
must waive the effects of Article 125 of the RPC. confiscate the bond and the court will also direct
the bondsmen:
Section 7, Rule 112, last sentence of second 1. to produce the body of their principal
paragraph provides: “Notwithstanding the waiver, within 30 days; AND
he may apply for bail and the investigation must be 2. to explain why the accused did not
terminated within fifteen (15) days from its appear before the court when first
inception.” So he can ask for bail even if he is not required to do so.
yet charged in court.
Dalawa yan – (1) produce him within 30 days,
Q: If you apply for bail with any court in the and (2) explain why you failed to produced him.
province, city or municipality, ano ang title and If you satisfy both conditions, no problem – the
number ng petition mo? You cannot put there court will issue an order lifting the order of the
“People of the Philippines versus…” kay wala pa forfeiture.
mang criminal case? What will be your reference?
A: “IN RE: PETITION FOR BAIL.” So bahala Q: Suppose you failed to comply both or one
na kayo diyan. Bahala na ang clerk of court how of the conditions, what will happen?
A: The court will render judgement on the MANOTOC vs. COURT OF

bond. Meaning, the bonding company is now APPEALS
liable on its bond. 142 SCRA 149
So ang una, order of confiscation or forfeiture ISSUE: How come if you are out
of the bond. The second stage is, if the conditions on bail, you cannot leave the country
are not met, there will be judgment against the without the permission of the court?
bond. So that is the step-by-step application of HELD: “A court has the power to
Section 21. prohibit a person admitted to bail
from leaving the Philippines. This is a
SEC. 23. Arrest of accused necessary consequence of the nature
out on bail. – For the purpose
of surrendering the accused,
and function of a bail bond. The
the bondsmen may arrest him or, condition imposed upon petitioner to
upon written authority endorsed make himself available at all times
on a certified copy of the
undertaking, cause him to be whenever the court requires his
arrested by a police officer or presence operates as a valid restriction
any other person of suitable on his right to travel.” (because this is
age and discretion.
An accused released on bail one of the conditions of the bail bond –
may be re-arrested without the you must be available whenever the court
necessity of a warrant if he requires you to appear.)
attempts to depart from the
Philippines without permission “Indeed, if the accused were
of the court where the case is allowed to leave the Philippines
pending. (23a) without sufficient reason, he may be
placed beyond the reach of the courts.
Section 23 is an instance of a valid warrantless If the sureties have the right to prevent
arrest. This is a continuation of Section 5 Rule 113. the principal from leaving the state,
more so then has the court from which
For the purpose of surrendering the accused, the sureties merely derive such right,
they can arrest him without a warrant. The and whose jurisdiction over the
bondsmen is his jailer. The theory of bond, lalo na person of the principal remains
yung corporate bond, is that the sureties or unaffected despite the grant of bail to
bondmen becomes you jailer in the eyes of the the latter.”
law, and you are their prisoner. They took over “The court cannot allow the
the government. In reality, they are not really accused to leave the country without
imprisoning you. You are a free man. And the assent of the surety because in
importante, you put up money for you release – accepting a bail bond or recognizance,
you pay premium, back up your commitment the government impliedly agrees that
with property. Parang insurance din ito eh. it will not take any proceedings with
the principal that will increase the
Now halimbawa, nainis sila sa iyo? – hindi ka risks of the sureties or affect their
nagabayad ng premium – puwede ka man nila remedies against him. Under this rule,
arestuhin bah! The bondsmen can have you the surety on a bail bond or
arrested without a warrant. So diretso ka sa jail. recognizance may be discharged by a
stipulation inconsistent with the
Let’s go to last paragraph of Section 23. If you conditions thereof, which is made
are attempting to leave the Philippines, lalo na without his assent.”
kung may hold departure order, even if you are
on bail, you can be arrested without a warrant. So, if your own bondsmen have the right to
Now, we will go to this question related to you prevent you, with more reasons with the court
constitutional right to travel: who has the complete jurisdiction over your
person. But even if the court wants to grand you
Q: How do you reconcile Section 23 with the permission to leave, gusto mong mag-tour, but
constitutional right to travel? sabi ng bondsmen, “Ayoko nga!”, then the court
A: In the 1986 case of has no power to grant your request because the
bondsmen must also agree. (Manotoc vs. CA, power of the courts to use all means
supra) necessary to carry their orders into
effect in criminal cases pending before
SILVERIO vs. COURT OF them.
APPEALS
April 8, 1991 In other words, the court has always the
power to prevent an accused from leaving for
FACTS: Silverio was charged abroad. And that constitutional provision was
criminally for violation of Revised never interpreted to limit the power of the court.
Securities Act. For more than two Therefore, Silverio was citing the wrong
years, there were series of provision. The philosophy does not apply to
postponements of the arraignment Silverio. Yaan!
scheduled therein. He could not be
arraigned because he had gone abroad SANTIAGO vs.
several times without the necessary GARCHITORENA
court approval. The prosecution got December 2, 1993
fed up already. So upon motion of the
prosecution, the trial court ordered the FACTS: Several criminal cases
DFA to cancel Silverio’s passport or to were filed against Miriam Santiago
deny the application to re-new the arising from her tenure as
passport. The Commission on Immigration Commissioner. Now, she
Immigration is also ordered to prevent was interviewed by the media and she
Silverio from leaving the country. said that she is leaving in a few days
Now, according to Silverio, the for abroad because she was offered a
court’s orders are unconstitutional fellowship grant by the Harvard
because under the Constitution, courts University. Nabasa ng Sandiganbayan
can impair the right of a citizen to ang interview sa newspaper, “Uy!
travel only on the ground of national Aalis! Alright, Hold-Departure Order!”
security, public safety or public health. Santiago questioned the order.
Silverio: “Is there an issue of national
security? Wala man! Public safety? ISSUE: May a court trying a
Wala man! Public health? Wala rin! criminal case issue a hold-departure
Therefore, you cannot prevent me order motu propio to prevent the
from travelling.” accused from leaving the country even
The SC here traced the history of if the prosecution did not file any
that constitutional provision. How did motion to issue such order?
that provision came out?
HELD: YES. “The court has the
HELD: The phraseology in the power to issue motu propio a hold-
1987 Constitution was a reaction to the departure order. The hold-departure
ban on international travel imposed order is but an exercise of the court’s
under the previous regime when there inherent power to preserve and to
was a Travel Processing Center, which maintain the effectiveness of its
issued certificates of eligibility to jurisdiction over the case and the
travel upon application of an person of the accused.”
interested party. (because during the
Marcos era, he created a travel
processing agency headed by General MARCOS vs.
Ver, where every Filipino who wants SANDIGANBAYAN
to travel abroad must be cleared by 247 SCRA (August 9, 1995)
that office.)
Article III, Section 6 of the 1987 FACTS: Criminal charges were
Constitution should by no means be filed against Imelda Marcos. In one of
construed as delimiting the inherent the cases, she was convicted by the
Sandiganbayan. After conviction, she think, followed the only prudent

filed a motion for reconsideration and course available of seeking the opinion
while her motion was p ending, she of other specialists in the field.”
filed a motion for leave to travel “Indeed, when even in their own
abroad for treatment of hypertensive field of expertise (law) courts are
heart disease, uncontrolled angina allowed to invite amici curiae to shed
pectoris, and anterior myocardial light on recondite points of law, there
infarction. The motion was supported is no reason for denying them
by medical reports prepared by her assistance on other subjects.”
physician and cardiologist and other “Perhaps the best proof that she is
doctors in Makati Medical Center. not in the group is the fact that she ran
Presiding Justice Garchitorena in the last election for a seat in the
referred the issue to a committee of House of Representatives and won. It
cardiologists from Health Center of may be assumed that she waged an
the Philippines for extra opinion on arduous political campaign but
some questions among which was: “Is apparently is none the worse for it.”
Marcos’ condition fatal? Or, Is she in
danger of dying? The committee Meaning, even in law which is already your
submitted a report which was heard in field of expertise, the court are even allowed to
the presence of the two lawyers of seek the help of other lawyers, lalo na when it
Marcos. Report ng committee: she was comes to the field of medicine. And finally after
sick but the evidence not confirm the one year, she ran for congresswoman in Leyte
allegation that Mrs. Marcos is in the high and she won. Of course when you campaign, you
risk group of sudden cardiac death. In have to undergo a terrible schedule of campaigns.
other words, she is sick but she is not Eh bakit buhay ka pa? So in other words, you are
in danger of dyiing. not really in danger of dying. And she is very
With that, the Sandiganbayan, “Ah much alive now.
hindi pala malala eh! So, wala! Motion
denied!” Marcos went to the SC COJUANGCO vs.
attacking the Sandiganbayan order SANDIGANBAYAN
alleging that the court adopted an 300 SCRA 367 [1998]
unusual and unorthodox conduct by
motu propio conducting a third party FACTS: Cojuangco has several
asking the latter to give an opinion. pending cases before the
Marcos: “Nobody is questioning. Bakit ba Sandiganbayan. And there is a travel
itong Sandiganbayan will not take the ban everytime he travels abroad.
words of my doctors? Parang walang
kumpiyansa!” ISSUE: Is there a need of hold-
departure orders everytime Cojuangco
HELD: “The Sandiganbayan acted travels abroad considering that many
properly. Respondent court had to things happened to Cojuangco?
seek expert opinion because
petitioner's motion was based on the HELD: “We resolve in the
advice of her physician. The court negative. The travel band should be
could not be expected to just accept lifted, considering all the
the opinion of petitioner's physician in circumstances now prevailing. It now
resolving her request for permission to becomes necessary that there be strong
travel. The subject lay beyond its and compelling reasons to justify the
competence and since the grant of the continued restriction on Cojuangco’s
request depended on the verification right to travel abroad. Admittedly, all
of the claim that petitioner was of Cojuangco’s previous requests to
suffering from a medical condition travel abroad has been granted and
that was alleged to be serious and life that Cojuangco has always returned to
threatening, the respondent court, we
the Philippines and complied with the plea. Once you entered your plea, all the defects
restrictions imposed on him.” are considered waived. But the posting of bail
“The necessity of further denying alone is not considered as waiver to raise those
Cojuangco’s right to travel abroad, issue.
with attendant restrictions, appears
less than clear. The risk of flight is
further diminished in view of
Cojuangco’s recent reinstatement as
Chairman and Chief Executive of San
Miguel Corporation, though he has
now more justification to travel so as
to oversee the entire operations of that
company. In this regard, it has to be
conceded that his assumption of such
vital post has come at a time when the
current economic crisis has adversely
affected by international operations of
many companies, including San
Miguel.”
“The need to travel abroad
frequently on the party of Cojuangco,
to formulate and implement the
necessary corporate strategies and
decisions, could not be forestalled.
These considerations affecting
Cojuangco’s duties to a publicly held
company, militate against imposing
further restrictions on Cojuangco’s
right to travel abroad.”
Rule 115
SEC. 26. Bail not a bar to RIGHTS OF ACCUSED

objections on illegal arrest, lack
of or irregular preliminary
investigation. – An application for
or admission to bail shall not bar I know you are not anymore a stranger to
the accused from challenging the many of these provisions because many of them
validity of his arrest or the are already found under the Constitution.
legality of the warrant issued
therefore, or from assailing the
regularity or questioning the Section 1 – Rights of
absence of a preliminary accused at the trial – In all
investigation of the charge against criminal prosecutions, the
him, provided that he raises them accused shall be entitled to
before entering his plea. The court the following rights;
shall resolve the matter as early
as practicable but not later than a.) To be presumed innocent
the start of the trial of the case. until the contrary is proved
(n) beyond reasonable doubt.
x x x x x
Section 26 is a new provision.

Paragraph [a] emphasizes the degree of proof
in criminal cases.
Q: If you post bail, are you under estoppel to
question the validity of the arrest or the
Why is it in criminal case an accused enjoys
regularity or absence of a preliminary
this presumption? Why does the law give the
investigation?
accused the presumption of innocence? The SC
A: Under Section 26, NO. The pivotal point is
already answered that the reason is to make the
for as long as you have not yet entered your
fight at least equal. In criminal cases, all the Yes, you should know why you are there. It is
resources are directed against the accused. It is very awkward that you are charged without even
the accused versus the People of the Philippines – knowing what the charge is all about. That is why
so you are fighting the government, and the there is an arraignment to make everything
government has all the resources at its command formal.
– the PNP, NBI, etc. Anong laban mo diyan? So at
least para mag-tabla-tabla ng konti ang laban, the Q: Can you waive the right to be informed of
law will give certain presumptions in your favor. the nature and cause of the accusation against
In the case of him?
A: NO. It is not waivable because public
interest is involved in this right, the public having
PEOPLE vs. SEQUERRA an interest in seeing to it that no person is
October 12, 1987 unlawfully deprived of his life or liberty. (U.S. vs.
Palisoc, 4 Phil. 207)
HELD: “Confronted by the full
panoply of state authority, the accused There are certain rights of the accused that are
is accorded the presumption of waivable; there are certain rights that cannot be
innocence to lighten and even reverse waived. For example: to be presumed innocent until
the heavy odds against him. Mere the contrary is proved – can you waive that? “Ah
accusation is not enough to convict OK lang, you can presume me guilty!” I don’t
him, and neither is the weakness of his think the court will agree with that. That is not
defense. The evidence for the waivable.
prosecution must be strong per se,
strong enough to establish the guilt of And mind you, there was a bar examination
the accused beyond reasonable doubt. in the past, where the examiner asked this
Otherwise, he is entitled to be freed.” question – “among the rights of the accused
“But as solicitous as the Bill of outline those which can be waived and cannot be
Rights is of the accused, the waived.” So practically you have to know [a] – [i].
presumption of innocence is not an It’s not only a question of enumerate the rights of
automatic or blanket exoneration. It is the accused but segregate those which can be
at best only an initial protection. If the waived and those which cannot be waived.
prosecution succeeds in refuting the Medyo mahirap yan. But if you have a lot of
presumption, it then becomes the common sense, [meaning, ang common sense is common sa
outlook of the accused to adduce iyo!] malaman mo man ba! “To be presumed innocent
evidence that will at least raise that – pwede bang ma-waive ito? Mukang hindi
inkling of doubt that he is guilty. Once man...” Yaan!
the armor of the presumption is
pierced, so to speak, it is for the c.) To be present and defend
accused to take the offense and ward in person and by counsel at
every stage of the proceedings,
off the attack.” from arraignment to
promulgation of the judgment.
So the accused cannot rely forever in the The accused may, however, waive
his presence at the trial
presumption of innocence. This is a disputable pursuant to the stipulations
presumption. The prosecution can destroy that set forth in his bail, unless
presumption by presenting evidence that you are his presence is specifically
ordered by the court for
guilty and once the prosecution has presented purposes of identification. The
that you cannot anymore rely on this absence of the accused without
presumption. It is now your duty to present justifiable cause at the trial
of which he had notice shall be
evidence that you are innocent. considered a waiver of his
right to be present thereat.
b.) To be informed of the When an accused under custody
nature and cause of the escapes, he shall be deemed to
accusation against him. have waived his right to be
present on all subsequent trial
dates until custody over him is
regained. Upon motion, the
accused may be allowed to So, you can waive your right but not your
defend himself in person when
it sufficiently appears to the duty. That is one of the conditions in the bond
court that he can properly under Rule 114, Section 2 [b] – “the accused shall
protect his rights without the appear before the proper court whenever so required by
assistance of counsel.
the court or these Rules.”
Paragraph [c] is quite important.
Q: Now, what happens if during the trial, the
accused did not show up but he was notified?
This is a right to be present from arraignment
Can the trial proceed without him?
to promulgation – right yan eh! – I want to be
A: YES, 2nd sentence of paragraph [c]
there.
provides, “The absence of the accused without
justifiable cause at the trial of which he had notice shall
Q: But technically, do you have the obligation
be considered a waiver of his right to be present
to be there?
thereat.” This is taken from Article II, Section 14
A: NO. This right is waivable because the law
(2), - Trial in absentia.
says the accused may however waive his
presence during the trial, unless the presence of
But take note that in trial in absentia, it
the accused is specifically ordered by the court
assumes that:
for purposes of identification.
1. the court already acquired jurisdiction
over your person;
This was taken from the case of NINOY
2. you were arrested; and
AQUINO, JR vs. MILITARY COMMISSION
3. you must first be arraigned. So
where Ninoy was arrested and tried in a military
arraignment is a prerequisite for trial
court and he refused to participate in the
in absentia to apply.
proceedings. And issue now is, can he be forced
by the court to appear? SC: YES, because how can
Q: What is the difference between these two
he be identified if he will not appear? That is why
sentences in [c]: “The absence of the accused without
it is now found in the Rules.
justifiable cause at the trial of which he had notice shall
be considered a waiver of his right to be present
CARREDO vs. PEOPLE thereat” and “when an accused under custody
183 SCRA 273 escapes, he shall be deemed to have waived his right to
be present on all subsequent trial dates until custody
ISSUE: After arraignment he can over him is regained”?
waive his presence during the trial, A: In the first sentence, the accused is absent
but can he be ordered arrested by the without justifiable cause during the particular
court for an appearance, upon trial date, and so the trial may continue. But he
summons to appear for purposes of can still appear in the next trial. He only waived
identification? his right to be present on that date but he has not
HELD: YES. “Waiver of waived his right to be present on subsequent trial
appearance and trial in absentia does dates. He has not waived his right to present
not mean that the prosecution is evidence.
thereby deprived of its right to require In the second sentence, iba eh. You escaped or
the presence of the accused for you jumped bail. You are not only waiving your
purposes of identification by its right to be present on this date but on all
witnesses which is vital for the subsequent dates. And therefore, there can be a
conviction of the accused. Such waiver judgment against you when the prosecution rests.
of a right of the accused does not
mean a release of the accused from his This trial in absentia was explained by the SC
obligation under the bond to appear in in the case of
court whenever so required. The
accused may waive his right but not
his duty or obligation to the court.” PEOPLE vs. AGBULOS
222 SCRA 196 (1993)
HELD: NO. Definitely, that is not

HELD: The prisoner cannot by the meaning of trial in absentia.
simply escaping thwart his continued Pagtapos na, eh di tapos na! why wait
prosecution and possibly eventual for the accused? However, there are
conviction provided that: questions. Does an accused, who has
1. he has been arraigned; been duly tried in absentia retain his
2. he has been duly rights to present evidence on his
notified of the trial; and behalf and to confront and cross-
3. his failure to appear is examine witnesses who testified
unjustified. against him? The court said that,
“Upon the termination of a trial in
(But how can the prosecution absentia, the court has the duty to rule
establish that the accused has been upon the evidence presented in court.
duly notified of the trial? How can you The court need not wait for the time
notify a person who is hiding? And until the accused who escape from
how can you say that his failure to custody finally decides to appear in
appear is unjustified?) court to present his evidence and
“The fugitive is deemed to have cross-examine the witnesses against
waived such notice precisely because him. To allow the delay of proceedings
he has escaped, and it is also this for this purpose is to render ineffective
escape that makes his failure to appear the constitutional provision on trial in
at his trial unjustified. Escape can absentia.”
never be a legal justification. His
escape will, legally speaking, operate ISSUE #2: Why is it that an
to his disadvantage as he will be escapee who has been tried in absentia
unable to attend his trial, which will does not retain his right to cross-
continue even in his absence and most examine witnesses and to present
likely result in his conviction.” evidence? How come those rights are
lost?
HELD: “By his failure to appear
GIMENEZ vs. NAZARENO during the trial of which he had
160 SCRA 1 (1988) notice, he virtually waived these
rights. This Court has consistently
FACTS: The accused is arraigned, held that the right of the accused to
then he escaped from jail. The confrontation and cross-examination
prosecution moved for the trial to of witnesses is a personal right and
proceed without him – trial in may be waived. In the same vein, his
absentia. So the prosecution presented right to present evidence on his behalf,
all its witnesses, and then it rested and a right given to him for his own
submitted the case for decision based benefit and protection, may be waived
on the prosecution’s evidence alone – by him.” So an escape can be
parang ex-parte ba. The judge said considered a waiver.
“NO, we will have to hear the accused.
Trial in absentia means the ISSUE #3: If judgment is rendered
prosecution can present its evidence as to the said accused and chances are
without him but the case will not be you would be convicted, would it not
decided until we catch him because violate his right to be presumed
we have to hear him.” The prosecution innocent and right to due process?
went to the SC. HELD: NO, he is still presumed
innocent. “A judgment of conviction
ISSUE #1: Is the court’s must still be based upon the evidence
interpretation of trial in absentia presented in court. Such evidence
correct? must prove him guilty beyond
reasonable doubt. Also, there can be
no violation of due process since the abogado. Ako rin! Ayoko ko rin ng abugado! I’ll be the
accused was given the opportunity to one to prosecute him!” Eh meron mang private
be heard.” If the prosecution does not prosecutor? “Ah hindi na kailangan ng private
present anything, he would be prosecutor! Siya personal, ako personal din!” Can he
acquitted. do that?
A: Let’s go back to Rule 110, Section 16 on
Now, the last sentence of paragraph [c]: whether the rights of the accused and the
offended party are same:
“Upon motion, the accused
may be allowed to defend “Where the civil action for
himself in person when it recovery of civil liability is
sufficiently appears to the instituted in the criminal
court that he can properly action pursuant to Rule 111,
protect his rights without the the offended party may
assistance of counsel.” intervene by counsel in the
prosecution of the offense.”
Take note that under the first sentence of [c]
he can be present and defend in person and by So their rights are different. The offended
counsel. For example, ayaw niya ng abogado? “I party cannot intervene personally. The law will
will defend myself!” Anong mangyari diyan? Is the not allow it. He must have a counsel. Sabihin
right to counsel waivable by the accused? YES. niya, “Wala man akong pera pang-hire ng private
The right to counsel may be waived by the prosecutor?” Eh di yung fiscal! The fiscal will be
accused BUT the waiver must be clear, intelligent the one to come in. That is why we have public
and competent. (People vs. Ben, L-8320, Dec. 20, prosecutors precisely to handle criminal cases.
1955)
d) To testify as a witness
in his own behalf but subject
But now, the guideline is clearer – the accused to cross-examination on matters
can be allowed to defend himself in person “when covered by direct examination.
it sufficiently appears to the court that he can properly His silence shall not in any
manner prejudice him.
protect his rights without the assistance of counsel.”
This is the right of the accused to testify on his
Meaning, although he is not a lawyer, parang
own behalf. But he has no obligation to testify. If
marunong and may common sense naman… the
you connect this to the next right – [e] to be exempt
court will say, “Magbasa ka ng Constitution,
to be a witness against himself (that is why you
Criminal Law, Evidence?” Accused: “Oo! Basahin ko
cannot compel him to testify) – once he testifies
lahat yan! Pag-aralan ko! I will defend myself!” Ah
on his own behalf, he waives the privilege against
problema mo na yan. And of course, whether he
self-incrimination and he can be cross-examined
succeed we do not know. That is your risk. I think
like any other witness. He cannot say, “I will
there is something wrong with that accused.
testify but I refuse to be cross-examined.” That would
be unfair no?
Even lawyers when they have cases, they hire
another lawyer. He will not depend on his own
So, you are waiving your right against self-
skills. Eh kung layman ka? I saw that happen. Ah
incrimination if you testify in your own behalf
talagang kawawa ka. Kahit na siguro yung
because the law is clear – subject to cross-
prosecutor na pinaka-banga, yariin ka talaga
examination on matters covered by the direct
because he will invoke many rules, laws,
examination. You can be cross-examined on
jurisprudence… eh anong malay mo diyan?
matters covered by direct examination. Let’s go
back to Evidence.
According to one statesmen, “A lawyer who
handles his own case has a FOOL for a client.”
Q: What is the rule on cross-examination?
Did you understand that? Meaning: Sino ang
A: Look at Rule 132, Section 6:
lawyer? Lawyer: “Ako!” Sino naman ang client?
Lawyer: “Ako rin!” Ah GAGO ka! “Upon termination of the
direct examination, the witness
Q: Now, I will expand the question: Sabi ng may be cross-examined by the
adverse party as to any matters
offended party, “Alright, ayaw ng akusado na may
stated in the direct beauty of law in the classroom, and the tragedy of
examination, or connected
therewith, with sufficient law outside! Yaan!
fullness and freedom from
interest or bias, or the Q: Now, what is the effect if the accused does
reverse, and to elicit all
important facts bearing upon not want to testify on his own behalf?
the issue.” A: No unfavorable deduction can be drawn
from the neglect or refusal of an accused to
So, masyadong broad eh! – You can be cross- testify. (U.S. vs. Luzon, 4 Phil. 343) His silence is
examined on matters or connected with matters in not in any manner prejudice him. (paragraph [d])
the direct examination with sufficient fullness
and freedom, etc. – very liberal! It is called the Meaning, if he refuses to testify, that should
ENGLISH RULE on cross-examination. not be taken against him because of his right to
remain silent. He can testify if he wants to. Kung
The AMERICAN RULE on cross-examination ayaw niya, puwede rin. Admission by silence is
is different – the witness can be cross-examined not generally applicable. ALTHOUGH there are
ONLY on matters stated in the direct one or two decisions of the SC where it said that
examination. if the evidence presented by the prosecution is
overwhelming, the accused should testify. One of
In the Philippines, we followed the English these cases is the 1998 case of
Rule because of Rule 132, Section 6. However, it
seems the American Rule on cross-examination is PEOPLE vs. DELMENDO
applied, as an exception, when you are talking 296 SCRA 371 [1998]
about cross-examining an accused in a criminal
case because of paragraph [d] – subject to cross- ISSUE: If the accused refuses to
examination on matters covered by the direct testify, can it be taken against him?
examination. HELD: General Rule is NO. BUT
the SC said in this case, “An adverse
So we follow the American Rule on cross- inference may also be deduced from
examination of the accused in criminal cases. Mas accused’s failure to take the witness
limitado! Sabihin mo sa mga judges yan! stand. While his failure to testify
Maraming hindi alam yan eh, because I knew of a cannot be considered against him, it
graduate here, ginamit niya talaga ang rule. Pag- may however help in determining his
cross-examine ng prosecution sa kanyang cliente guilt. The unexplained failure of the
who is the accused, object siya, “Objection!” accused to testify, under a
Prosecution: “No! This is cross-examination! We are circumstance where the crime
testing the credibility of the accused to testify.” Sabi imputed to him is so serious that
niya, “No! No! No! We are following the American places in the balance his very life and
Rule on cross-examination of the accused under Rule that his testimony might at least help
115 and you are citing the English Rule – the general in advancing his defense, gives rise to
rule – under Rule 132!” Sabi ng judge, “Ano ba yang an inference that he did not want to
American Rule, English Rule?” testify because he does not want to
betray himself.”
Naloko na! Sabi nung lawyer, “Ganito pala ito! “An innocent person will at once
What I learned in law school is different from what I naturally and emphatically repel an
see!” Talagang ganyan yan. Kailangang masanay accusation of crime, as a matter of self-
kayo diyan. Just like [Atty.] Ceniza. He was preservation, and as precaution
talking to me last week. He was telling me of against prejudicing himself. A
what happened in Davao Oriental in one MTC. person’s silence, therefore, particularly
Sabi niya, “Ganito! Ganito! Parang niluto man when it is persistent, may justify an
ako?!” Talagang niluto ka! Ganyan gud yan diyan inference that he is not innocent. Thus,
sa Davao Oriental – they knew each other! So you we have the general principle that
have to get used to it. Kapag matapang ka, file ka when an accused is silent when he
ng kaso. File-an mo silang lahat! That is the should speak, in circumstances where
an innocent person so situated would
have spoken, on being accused of a There was a tricky question in the Bar exam in
crime, his silence and omission are the past:
admissible in evidence against him.
Accordingly, it has been aptly said PROBLEM: The accused is charged with
that silence may be assent as well as falsification for writing a falsified letter. The
consent, and may, where a direct and prosecution present its evidence that this letter
specific accusation of crime is made, was written by the accused. The accused said,
be regarded under some “No, that is not my handwriting.” On cross-
circumstances as a quasi-confession.” examination, he was asked to write on a piece of
paper as dictated. The defense object on the
ground of violation of the right to self-
And to my mind, that was the risk which incrimination. Rule on the objection.
Erap was taking during the impeachment trial ANSWER: The objection should be overruled.
because his lawyers never agree that Erap will The case is not covered by the right against self-
testify because lalong masisira si Erap kung mag- incrimination. He can be compelled because he
testify siya. Estrada is their greatest nightmare. testified that it is not his handwriting. From that
He is one person who cannot control his mouth moment he waived his right against self-
and once he starts talking, he does not know what incrimination. It is unfair that you say it is not
his saying. your signature and I have no way of telling you
to give me a specimen.
That is why his lawyers are already afraid
that if the second envelope will be opened, the Q: How is the right against self-incrimination
evidence of the prosecution becomes be waived?
overwhelming, and there is no other choice but to A: The privilege is waivable by the accused
Estrada to testify. So hangga’t maaga pa, patayin taking the stand and testifying as a witness or by
na! But they were not anticipating that by killing freely answering the incriminating questions put
that evidence, it hastens Estrada’s downfall! to him. (U.S. vs. Grant, 18 Phil. 122; U.S. vs. Rota,
9 Phil. 426) Or by not objecting.
[e] To be exempt from being Q: What is the reason for the right of an
compelled to be a witness
against himself. accused against self-incrimination?
A: The rule was established on the ground of
This is the right against self-incrimination – public policy, because if the accused were required
Nemo tenetur seipsum accusare. to testify, he would be placed under the strongest
temptation to commit perjury, and of humanity,
Take note that the right of the accused against because it would prevent the extortion of
self-incrimination is not limited to testimonial confession by duress. (U.S. vs. Navarro, 3 Phil.
evidence. According to the SC, it refers not only 143) So, if you require him to testify, chances are
to testimonial compulsion but also to production he will lie.
by the accused of incriminating documents and
things. (Villaflor vs. Summers, 41 Phil. 62) So you That is why according to former U.S. SC
cannot subpoena his personal documents. Justice Black, “The accused should not be fried by
his own fat. [e di cooking oil!] No sane man will burn
However, supposed you are asked to perform his own shirt nor he will get a stone to hit his own
a mechanical act, for example footprint, “Ilagay head. [eh kung gusto ko pala? Anong paki mo?] The privilege
mo nga yang paa mo diyan beh! Let’s find out kung against self-incrimination is one of the great
pareho kayo ng size nung footprint.” This is not landmarks in man’s struggle to make himself
covered. Mechanical lang yan eh – physical act. civilized. We do not make even the most
However, to produce specimen signature requires hardened criminal sign his own death warrant or
concentration and intelligence. This is covered by dig his own grave.”
the protection. (People vs. Otadora, 86 Phil. 244;
Bermudez vs. Castillo, 64 Phil. 433; Beltran vs. Our own SC also followed that kind of
Samson, 53 Phil. 570) explanation through Justice Reynato Puno in the
1994 case of
that option if he does not even see the witnesses?

So more or less, that is the reason behind it. To
MAPA vs. SANDIGANBAYAN borrow the language of an American justice
231 SCRA 783 commenting on this issue, “It ensures that
convictions will not be based on the charges of
HELD: “The days of inquisitions unseen and unknown, hence unchallengeable
brought about the most despicable individuals".
abuses against human rights. Not the
least of these abuses is the expert use Another Justice, Justice Scalla, he is still an
of coerced confessions to send to the incumbent of the Federal Supreme Court,
guillotine even the guiltless. To guard describing this right, he said, “It is always more
against the recurrence of this difficult to tell a lie about a person to his face than
totalitarian method, the right against behind his back, and even if the lie is told, it will
self-incrimination was ensconced in often be told less convincingly.” Meaning, it is
the fundamental laws of all civilized easier to tell a lie ba against somebody if he is not
countries.” in front of you. Pero pagkaharap na, parang
alanganin kang magsinungaling eh. And even if
you still tell a lie, it becomes not so convincing if
(f) To confront and cross-
examine the witnesses against you will lie about a person in front of you. But if
him at the trial. Either party he is not there, you become very persuasive in
may utilize as part of its your talk. These are the psychological reasons
evidence the testimony of a
witness who is deceased, out of behind that.
or can not with due diligence
be found in the Philippines, Q: What are the EXCEPTIONS to the right of
unavailable, or otherwise
unable to testify, given in the accused to confront and examine witnesses
another case or proceeding, against him?
judicial or administrative, A: The following:
involving the same parties and
subject matter, the adverse 1. Second portion of paragraph [f]:
party having the opportunity to
cross-examine him. Either party may
utilize as part of its
evidence the testimony of
Q: Is the right to confront and cross-examine a witness who is
the witnesses against him waivable? deceased, out of or can
A: YES as ruled by the SC in the case of not with due diligence be
found in the Philippines,
GIMENEZ VS. NAZARENO, (160 SCRA 1), such unavailable, or otherwise
right is waived if the accused decides to run unable to testify, given
away, jumps bail, or disappears – he is in another case or
proceeding, judicial or
automatically waiving the right to confront and administrative, involving
cross-examine the witnesses against him. the same parties and
subject matter, the
adverse party having the
Q: Now what is the reason behind this right? opportunity to cross-
Why is there such a right? examine him.
A: It is intended to prevent the conviction of
an accused upon mere depositions and affidavits; Sometimes there is no choice.
to preserve the right of the accused to test the Now, one good example where the
recollection of witnesses against him; and to testimony of a witness is admissible
enable the court to observe the demeanor of the even if he does not appear in the trial
witnesses who are testifying. (Dowdell vs. U.S., is when the witness is about to die.
221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413) Malapit ng mamatay, so you need to
take his testimony in advance. In civil
You have taken up Evidence. Those are the cases we call it deposition. In the
important factors for the court to gauge the criminal procedure, deposition is
credibility of witnesses. Demeanor ba – their called conditional examination of a
manner of testifying. How can the court exercise
witness. That is governed by Rule 119

Sections 12, 13, and 15. If there are 11 exceptions to the
hearsay rule, all of them are also
2. when there is a separate civil action exceptions to this. Like dying
filed against the accused by the declaration, how can you cross-
offended party and he made a examine iyung taong patay na. So
reservation there are 11 exceptions to the right to
confront and cross-examine the
Normally, the prosecution witnesses against him which are all
witnesses in the criminal case are also found in the rules on evidence.
the witnesses for the plaintiff in the
civil case. Assuming nauna ang trial
ng civil case, these witnesses testified Q: One last point, does the right to confront
during the trial of the civil case, they and cross-examine the witnesses against you,
were cross-examined by the lawyer of include your right to know their names and
the defendant who is also the accused addresses in advance?
in the criminal case. Now, under the A: NO, the accused has no such right because
law, when the criminal case is tried, the case of the prosecution might be endangered
these witnesses have to testify again in if the accused were to know the prosecution
the criminal case, practically they will witnesses in advance, for known witnesses might
have to repeat their testimony. The be subjected to pressure or cowered not to testify.
trouble is, in the meantime, some of (People vs. Palacio, L-13933, May 25, 1960) So,
these witnesses died. you confront them during the trial, not now.
Q: Can the testimony recorded in

the civil case be now admissible in the (g) To have compulsory process
issued to secure the attendance
criminal case when there is no more of witnesses and production of
confrontation there? other evidence in his behalf.
A: Yes. because that is the
exception, “when the testimony of the I think that is self-explanatory, that is one of
witness who is now deceased, given in your rights as an accused. As a matter of fact, the
another case or proceeding, judicial or question has been asked in the bar.
administrative, involving the same parties
and subject matter, the adverse party Q: Suppose my witness is somewhere there in
having the opportunity to cross examine Cagayan de Oro, can I secure a subpoena to
him.” compel him when under the rules on subpoena a
witness is not bound if he resides more than 100
As a matter of fact, this is also kilometers?
considered as one of the exceptions to A: That has already been answered in the
the Hearsay Rule. It is the 11th cases of PEOPLE VS. MONTEJO and MILLORCA
exception to the Hearsay Rule. Try to VS. QUITAIN. The SC said that the 100-km
connect this with Rule 130 on limitation (formerly 50 kms.) does not apply
Evidence. How many exceptions are when you are talking of witnesses for the defense
there to the Hearsay Rule? eleven (11) in a criminal case because of the Constitutional
iyan eh – starting from dying right to have compulsory process issued to secure
declaration. That is the last exception – the attendance of witnesses in his behalf. That
testimony or deposition at a former right cannot be precluded by provisions in the
trial or proceeding. Yaan! That is Rules of Court.
considered as an exception to the right
against confrontation.
(h) To have speedy,
3. The exceptions to the hearsay rule are impartial and public trial.
likewise exceptions to this right of the

accused. (U.S. vs. Gil, 13 Phil. 530) There are actually three rights here:
1. the right to a speedy trial; dismissal is equivalent to an acquittal

2. the right to an impartial trial; and and there is no way for that case to be
3. the right to a public trial. brought back because it will amount to
double jeopardy. (People vs. Diaz, 94
Q: What do you mean by speedy trial? Phil. 714)
Meaning, no postponements? not even one
postponement? 2. If the court grants the postponement
A: NO. That is not the interpretation. In the everytime the fiscal asks for it, over
case of the protest of the accused, the latter’s
remedy is mandamus to compel
ALVIZO vs. SANDIGANBAYAN dismissal of the case; (Mercado vs.
220 SCRA 55 Santos, 66 Phil. 215)
HELD: It must not be lost sight of 3. If the accused is restrained of his

that the concept of speedy disposition liberty, his remedy is habeas corpus to
of cases is a RELATIVE term and must obtain his freedom. (Mercado vs.
necessarily be a flexible concept. Santos, 66 Phil. 215; Conde vs. Rivera,
Delays per se are understandably 45 Phil. 650)
attendant to all prosecutions and are
constitutionally permissible with the
monition that the attendant delay Q: When is trial impartial?
must NOT be OPPRESSIVE. [Hindi A: There should be no bias otherwise, the trial
palagi. Pa-minsan-minsan okay lang will not be fair – you are not given due process. If
man ba] Hence, the doctrinal rule is the court or the judge has already pre-ordained
that in the determination of whether your guilt. “Every litigant is entitled to nothing
or not that right has been violated, the less than the cold neutrality of an impartial
factors that may be considered and judge.” (Villapando vs. Quitain, January 20, 1977)
balanced are:
a.) the length of delay; Q: Right to a public trial – this is one of the
b.) the reasons for such delay; features of the accusatorial system. What is the
c.) the assertion or failure to reason for public trial?
assert such right by the A: The requirement of public trial is for the
accused; and benefit of the accused, that the public may see
d.) the prejudice caused by the that he is fairly dealt with and not unjustly
delay. condemned, and that the presence of spectators
may keep his triers keenly alive to a sense of
responsibility and to the importance of their
Q: What are the remedies of an accused whose functions. (1 Cooley, Constitutional Limitations,
rights to a speedy trial is being violated because p. 647)
the prosecution keeps on postponing the case?
How do you invoke this right to speedy trial? Meaning, everybody is on their toes. You
A: There are three (3) possible remedies: don't want to commit a mistake eh, mahihiya ka
eh, maraming nanonood. The judge, the
1. The accused should OPPOSE the prosecutor, the witnesses, the defense counsel,
postponement and insist on trial. If the everybody is careful because they are watched by
court denies the postponement and the public. Look at what happened in the
directs the prosecution to proceed and impeachment trial, everybody wants to be careful
cannot do so because he does not have there because, imagine how many millions of
the evidence, the accused should move people are watching you there on T.V. So, pati
for dismissal of the case on the ground ang mga senators di makatulog, some are sleepy
of failure to prosecute or insufficiency no, mapapahiya ka, you are ashamed na makita
of evidence. (Jaca vs. Blanco, 86 Phil. ka ng camera natutulog ka or you are using your
452; Gandicela vs. Lutero, 88 Phil. 299; cellphone.
People vs. Diaz, 94 Phil. 714) The
I was reading an interview with Davide, he

was asked how he was able to cope with his
hours – full concentration iyan eh, because he has
to listen to every question because you do not
know when an objection will come. Senators can
just relax and pretend they are listening. Davide
has to make the ruling. So he has 5 or 6 hours of
full concentration. Katakot-takot daw na bitamina
at kape. [bato?]
Please connect this provision on Speedy Trial

with Rule 119 Section 9 which is a new provision
taken from the Speedy Trial Act. What is the
heading of Section 9 Rule 119? Remedy where
accused is not brought to trial within time limits. So
there is such a provision. When your case will not
move, the accused may question the delay why
his case has not been set for trial. That is a new
provision taken from the Speedy Trial Act.
[i] To appeal in all cases

allowed and in the manner
prescribed by law
There is something you will notice here – all

the rights of the accused in this Rule, from [a] to RULE 116
[h], are also found in the Constitution. These are ARRAIGNMENT AND PLEA
all Constitutional rights except the last – [i]. The
right to appeal is purely statutory which may be
granted or withheld at the pleasure of the State.
(People vs. Ang Gioc, 73 Phil. 366) The accused must be arraigned before the
court. That is the manifestation of the right of the
accused to be informed as to the nature and cause
of the accusation against him. The procedure is
there in [a].
SECTION 1. Arraignment and

plea; how made. (a) The accused
must be arraigned before the
court where the complaint or
information was filed or
assigned for trial. The
arraignment shall be made in
open court by the judge or
clerk by furnishing the accused
with a copy of the complaint or
information, reading the same
in the language or dialect
known to him, and asking him
whether he pleads guilty or not
guilty. The prosecution may
call at the trial witnesses
other than those named in the
complaint or information.
x x x x x
You can even ask for a copy of the complaint present such number of witnesses it
and information there, although normally the deems sufficient. Their non-inclusion
lawyers ask for it in advance, they do not merely in the list of witnesses is of no
ask during the arraignment, before the moment. In fact the omission of their
arraignment may kopya na sila. Take note of the names in the list of prosecution
last sentence: witnesses in the information is
commonly practiced for their own
“The prosecution may call on protection at least until the termination
the trial witnesses other than
those named in the complaint or of the case.”
information.”
Have you seen a criminal information? (b) The accused must be

present at the arraignment and
Normally, at the last potion – “Witnesses for the must personally enter his plea.
prosecution: Aquiatan, Tormon, Salesa, Balite and Both arraignment and plea shall
others.” Mayroon man usually iyan “and others”. be made of record, but failure
to do so shall not affect the
The prosecution will sometimes not name all. So validity of the proceedings.
mayroong reservation.
Q: Now, what happens if a case is tried
Q: Now, can you question that reservation of without arraignment?
the fiscal? If you are the accused, can you A: The GENERAL RULE, that is irregular –
question that procedure? the proceedings are tainted with irregularity
A: YES, puwede. Whether it is possible for the because arraignment is MANDATORY. (U.S. vs.
prosecution not to name everybody was the issue Palisoc, 4 Phil. 207). HOWEVER, there was an
in the case of instance where the SC considered the
proceedings as valid where the lawyer of the
PEOPLE vs. DE ASIS accused also did not object the absence of the
December 7, 1993 arraignment. This the case of
HELD: “There is nothing that PEOPLE vs. CABALE

could prevent the prosecution from May 8, 1990
presenting witnesses in court not
listed in the information, as it is well FACTS: Nag pre-trial, walang
settled that the court has the arraignment. But the parties presented
undisputed right to call on a witness evidence. And when the case was
whose name does not appear in the list about to end they noticed, “Teka muna,
of the fiscal, unless the omission of wala pang arraignment ito, ah? O sige, i-
said witness is intentional and tainted arraign!” So, in other words, the
with bad faith. The established rule is accused was arraigned when the trial
that the prosecution may call unlisted was about to end, or I think already
witnesses to testify.” ended.
“Moreover, the purpose of the
listing of the names of the witnesses in ISSUE: Is the trial valid?
the complaint or information is merely
to avoid the presentation of surprise HELD: What is the purpose of
witnesses and to enable the defense to arraignment? – to inform the accused
examine their record, morality and of the nature of the charge against
character, but once placed on the him. Now, if he does not know, how
witness stand, it can no longer be come he was able to participate in the
disputed that the defense has already trial? He was able to cross-examine the
the opportunity to examine the witnesses against him, he was able to
character and credibility of the present witnesses. So, the defect
unlisted witness.” became a formal defect.
“Finally, it is beyond question, that “We find that while the
it is the prosecution's privilege to arraignment of the appellant was
conducted after the cases had been Q: Now, is there such a thing as arraignment
submitted for decision, the error is by proxy?
non-prejudicial and has been fully A: Wala. The accused must be personally
cured when counsel for the appellant present. He must enter his plea.
entered into trial without objecting
that his client had not yet been
arraigned. Said counsel had also the (c) When the accused refuses
to plead or makes a conditional
full opportunity of cross-examining plea, a plea of not guilty
the witnesses for the prosecution. shall be entered for him. (1a)
There was, therefore, no violation of
the appellant's constitutional right to Q: Halimbawa ayaw mag-enter ng plea?
be informed of the nature and cause of COURT: “What do you say—Guilty or Not guilty?”
the accusation against him.” ACCUSED: “No comment. I do not want to say
anything.”
A: Under paragraph [c], a plea of "Not guilty"
Now, accused are arraigned sa trial when the will be entered, or conditional plea, because a
case is filed in court and about to be tried. Now, plea must be absolute and unconditional.
how about preliminary investigation conducted
by the MTC outside chartered cities, should the I saw such situations before – Homicide,
accused be arraigned by the MTC judge? where the accused was arraigned. Siyempre, “on
or about something with the use of a knife
Alam mo, I met that kind of situation years stabbed so and so which caused his death.”:
ago, in one of the MTCs in the North. There was a COURT: “Kasabot ka?”
preliminary investigation and then I noticed an ACCUSED: “Yes.”
arraignment. Actually the case was triable by the COURT: “What do you say? Guilty or
RTC. The purpose there (MTC) was only to Not guilty?”
determine probable cause. So I asked, “Mayroon ACCUSED: “Guilty – inunahan man
bang arraignment ang preliminary investigation?” niya ako ba.”
Sabi nung abogado doon, “Yes, mayroon.” DEAN:
“Wala man sa Rules of Court?” LAWYER: “Iyan According to him, he is guilty. But actually, it
man ang ginagawa ng mga judges dito.” In other is the deceased who tried to kill him first. It is
words, MTC judges conduct arraignment in self-defense! so, within the “not guilty” plea din
preliminary investigation – matter of practice yan. Pag-guilty, guilty! Hindi puwede iyung
daw – you do not find a provision in the Rules guilty pero may condition – so not guilty.
saying yes or no. However, in 1993, I came across Conditional pleas are not allowed. If you do that,
a case where the SC commented on that – the case we will enter a plea of not guilty for you.
of
Now, paragraph [d] of Section 1 is new:
ALISANGCO vs. TABILIRAN,
JR. (d) When the accused pleads
guilty but presents exculpatory
224 SCRA 1 evidence, his plea shall be
deemed withdrawn and a plea of
HELD: There is NO such thing as not guilty shall be entered for
him. (n)
arraignment in a Preliminary
Investigation. “There is no law or rule
We will understand this more when we read
requiring an arraignment during the
the case of PEOPLE vs. MENDOZA (231 SCRA
preliminary investigation. Under
264). For example: You enter a plea of guilty. But
Section 1, Rule 116 of the Revised
sabi mo, (sometimes this happens eh) “may we be
Rules of Court, the arraignment must
allowed to present evidence to show mitigating
be conducted by the court having
circumstances?” And then the court will allow
jurisdiction to try the case on its
you. You will present evidence to prove you are
merits.”
entitled to this or that mitigating circumstance
para magbaba ang penalty.
The private offended party is supposed to

Q: Halimbawa pag-present ng evidence, na appear at the arraignment for purposes of plea
prove na wala pala siyang kasalanan? bargaining. Plea bargaining is explained in Rule
A: Then, under the rules, the plea of “guilty” 118 and also here in Section 2. Now, what do
is automatically withdrawn, and the court will you mean by this – Plea Bargaining?
order the substitution of “not guilty” because,
when you plead guilty, you are not supposed to We will connect this right away to Section 2:
present evidence to prove your innocence, that is
being inconsistent. But if you do it, then the court
will change it immediately from guilty to not SEC. 2. Plea of guilty to a
lesser offense – At
guilty. arraignment, the accused, with
the consent of the offended
Paragraphs [e], [f], and [g] are new: party and prosecutor, may be
allowed by the trial court to
plead guilty to a lesser
(e) When the accused is offense which is necessarily
under preventive detention, his included in the offense
case shall be raffled and its charged. After arraignment but
records transmitted to the before trial, the accused may
judge to whom the case was still be allowed to plead
raffled within three (3) days guilty to said lesser offense
from the filing of the after withdrawing his plea of
information or complaint. The not guilty. No amendment of the
accused shall be arraigned complaint or information is
within ten (10) days from the necessary. (sec. 4, circ. 38-
date of the raffle. The pre- 98)
trial conference of his case
shall be held within ten (10)
days after arraignment. (n)
Plea bargaining – mag-tawaran ba! You are
(f) The private offended
party shall be required to charged with murder, “homicide na lang [pliiiiiss].”
appear at the arraignment for Kung homicide, plead ako “guilty” para at least
purposes of plea bargaining, mababa ang sentensiya.
determination of civil
liability, and other matters
requiring his presence. In case According to the law if the prosecutor agrees
of failure of the offended and the offended party or the family of the
party to appear despite due
notice, the court may allow the deceased agrees, puwede. Both of them must give
accused to enter a plea of their consent.
guilty to a lesser offense
which is necessarily included
in the offense charged with the So from Robbery, mahulog sa theft. Qualified
conformity of the trial theft, maging simple theft. At least mababa di ba?
prosecutor alone. (cir. 1-89) Or, from attempted homicide to physical injuries
(g) Unless a shorter period na lang. Meaning, tawaran ba! That is allowed
is provided by special law or under the law provided the condition is, with the
Supreme Court circular, the consent of the offended party and the prosecutor.
arraignment shall be held
within thirty (30) days from
the date the court acquires That is why during the arraignment,
jurisdiction over the person of according to the previous section paragraph [f],
the accused. The time of the
pendency of a motion to quash the private offended party shall be required to
or for a bill or particulars or appear for purpose of plea-bargaining.
other causes justifying
suspension of the arraignment
shall be excluded in computing Q: Now suppose the offended party will not
the period. (sec. 2, cir. 38- appear during the arraignment?
98)
A: According to paragraph [f], “in case of
failure of the private offended party to appear despite
Let’s go to paragraph [f], this is one of the due notice, the court may allow the accused to enter a
important amendments here. plea of guilty to a lesser offense which is necessarily
included in the offense charged with the conformity of
the trial prosecutor alone”. So, the consent of the FACTS: The accused was charged
prosecutor would be enough. with homicide. So obviously, he killed
somebody. During the plea
Sabi ngayon ng private offended party, “But I bargaining, sabi ng accused, “We
did not give my consent.” Aba, kasalanan mo yan! would like to plead guilty to the lesser
You should have appeared during the offense of attempted homicide (2
arraignment. Wala ka man, so there is a valid degrees lower).” The prosecutor and
plea-bargaining. the widow agreed. So the court
rendered a decision on attempted.
Now, I noticed that the 2000 Rules went back Nagalit ang pamilya ng namatay – ang
to the original provision of the 1964 Rules. Under brother, “anong klase ito?!” The
the 1964 rules, you are allowed to plead guilty to brother of the deceased brought a
a lesser offense provided the lesser offense is letter to Chief Justice Narvasa at that
necessarily included in the offenses charged. time, questioning the judge, “Pwede
Murder to homicide; Theft is part of Robbery; ba yan?”
Qualified theft, simple theft; from serious to less Of course, according to Judge
serious physical injuries; that is the condition – Aujero, “Teka muna, under the new
the lesser offense will be included in the offense Rules (citing the 1985 Rules) you can
charged. plead guilty to a lesser offense
whether or not included in the offense
But when the Rules were amended in 1985, charged, and even you, you have to
naiba – it became a very controversial provision consider that attempted homicide is
because the 1985 Rules said that, “You are related to homicide kaya lang two
allowed to plead guilty to a lesser offense, even if degrees lower. The law is very clear.”
not included in the offense charged”. That’s why Ano sabi ng Supreme Court? The
it created a lot of problems. Halimbawa, I am Supreme Court gave a lecture.
accusing you of serious physical injuries, you will
plead guilty to slander, there is no connection. HELD: The fact of death of the
But the language of the 1985 Rules as written, victim cannot by simple logic and
puwede. plain common sense be reconciled
with the plea of guilty to the lower
Now, the SC went back to the original offense of attempted homicide.
provision “which is necessarily included in the (imagine, namatay, ngayon buhay na?
offense charged.” how can you reconcile these two?) The
crime of homicide as defined in Article
After arraignment but before trial, the accused 249 of the Revised Penal Code
may still allowed to plead guilty to said lesser necessarily produces death; attempted
offense after withdrawing his plea of not guilty. homicide does not.
After you are arraigned you can still change your However, the law is not entirely
mind for as along as the prosecution has not yet bereft of solutions in such cases. In
commenced the presentation of evidence. And instances where a literal application of
there is no need of amending the complaint or a provision of law would lead to
information, automatic na yan, less paperworks injustice or to a result so directly in
for the prosecutor. opposition with the dictates of logic
and everyday common sense as to be
Now, let’s look at some interesting cases unconscionable, the Civil Code,
decided by the Supreme Court. These cases were particularly Article 10, admonishes
decided before the amendment but we can see the judges to take principles of right and
philosophy is still there. justice at heart. (Meaning, when a
judge decides, do not look only at the
AMATAN vs. JUDGE AUJERO letter of the law, you look at the logic
[Adm. Matter No. RTJ-93-956] of your decision, the sense of right and
September 27, 1995 justice.) In case of doubt the intent is to
promote right and justice. Fiat justicia
ruat coelum. Stated differently, when a bench stands unique because of the
provision of law is silent or potently absurd result of respondent's
ambiguous, judges ought to invoke a application of the law.”
solution responsive to the vehement
urge of conscience. I think he was just censured or fined a
These are fundamental tenets of minimal amount. Di naman sinadya, kaya lang
law. In the case at bench, the fact of pangit ba. Iyan ang sinasabi ko, how do you get
the victim's death, a clear negation of quality judges? That is the big problem – yung
frustrated or attempted homicide, malawak ang pag-iisip. Yaan!
ought to have alerted the judge not
only to a possibly inconsistent result
but to an injustice. (In other words, the PEOPLE vs. VILLARAMA, JR.
charge is he died, I will convict him 210 SCRA 226
for attempted homicide which
assumes he did not die, how can you FACTS: The accused is charged
reconcile? Dapat pag-isipan mo yan, with, let’s say, murder. Then the case
look at the effects of your decision.) was tried and the prosecution rested.
The failure to recognize such Afterwards, the accused argued, “You
principles so cardinal to our body of have not proved any qualifying
laws amounts to ignorance of the law circumstance, so I will not present any
and reflects respondent judge's lack of evidence anymore. I will just plead to
prudence, if not competence, in the a lesser offense of Homicide.”
performance of his duties. While it is
true, as respondent judge contends, ISSUE: Can plea bargaining still
that he merely applied the rule to the be entertained at that stage? Because
letter, the palpably incongruous result normally plea-bargaining is done
ought to have been a “red flag” before the trial. Is that allowed?
alerting him of the possibility of
injustice. The death of an identified HELD: YES. There is nothing
individual, the gravamen of the charge wrong with that, provided the
against the defendant in the criminal prosecution does not have sufficient
case, cannot and should not be evidence to establish the guilt of the
ignored in favor of a more expedient accused for the crime charged. The
plea of either attempted or frustrated only basis for allowing a plea of guilty
homicide. We have held before that if to a lesser offense is nothing more and
the law is so elementary, not to know nothing less than the evidence already
it or to act as if one does not know it, in the record. There is nothing wrong
constitutes gross ignorance of the law. with that procedure.
(Where the law is so basic and you do
not know it or pretend not to know it, Take note also that under Section 1 [f], the
that is gross ignorance of the law.) private offended party should be required to
What happens now to Judge appear in the arraignment precisely because of a
Aujero? Sinabon siya ng SC, “Finally, possible plea of guilty to a lesser offense which
every judge must be the embodiment requires his consent. That is why under the new
of competence, integrity and rule in Section 1 [f], if he does not appear, the
independence. A judge should not plea-bargaining can proceed and only the consent
only be aware of the bare outlines of of the prosecutor is necessary. The consent of the
the law but also its nuances and offended party is no longer required according to
ramifications, otherwise, he would not the present rules on criminal procedure, i.e. if he
be able to come up with decisions does not appear.
which are intrinsically fair.” (Wala
namang malice. Di naman sinadya or Q: What happens if an accused enters a plea
bad faith that he was paid to do it, so of guilty?
the SC said,) “Nonetheless, the case at
A: The GENERAL RULE is that there would

be no trial anymore. No more presentation of
evidence because the accused has already SEC. 3. Plea of guilty to
capital offense; reception of
admitted the crime. evidence. – When the accused
pleads guilty to a capital
Q: What is the implication of a plea of guilty? offense, the court shall
conduct a searching inquiry
A: That the accused is admitting the essential into the voluntariness and full
elements of the crime as charged in the comprehension of the
information, and according to the SC, including consequences of his plea and
shall require the prosecution
the aggravating circumstances. Especially now, to prove his guilt and the
under the new Rules where the prosecution is precise degree of culpability.
mandated to allege also the aggravating The accused may present
evidence in his behalf. (3a)
circumstances. So, as a general rule, judgment of
conviction can proceed immediately.
Q: So when a person pleads guilty to a capital
HOWEVER, according to the SC, even if there
offense, can the court sentence him to death based
is a plea guilty, certain facts alleged in the
on his plea of guilty?
information are not deemed admitted. What are
A: NO. The correct procedure is:
those facts that are deemed not admitted? These
1.) The court shall conduct a searching
are:
inquiry into the voluntariness and full
1.) Facts not alleged in the complaint or
consequences of his plea. The court
information;
must determine whether he really
2.) Mere conclusions of facts;
understood it and its effects;
3.) The jurisdiction of the court. So even if
2.) Even if the accused pleads guilty, the
I plead guilty, I can still question later
court will still require the prosecution
the jurisdiction of the court;
to prove the guilt of the accused. Thus,
4.) The sufficiency of the complaint or
the plea of guilty is not accepted
information is not considered even if
anymore in capital offense. That is
there has been a plea of guilty.
only corroborative because the
prosecution is still required to present
Q: So what happens if I plead guilty and it
evidence;
turns out there is no crime?
3.) The accused may still present evidence
A: There can be no conviction because the
in his behalf.
sufficiency of the complaint or information is not
admitted by a plea of guilty.
“THE COURT SHALL CONDUCT A
On the other hand, when the accused pleads SEARCHING INQUIRY INTO THE
not guilty, then the issues are joined and the case VOLUNTARINESS AND FULL
is ready for trial. That is the counterpart of an COMPREHENSION OF THE CONSEQUENCE
answer in civil procedure because there is no OF HIS PLEA”
Answer in criminal cases. Your plea is your
answer.
What do you mean by “the court shall conduct a
As already emphasized in some cases, when searching inquiry into the voluntariness and full
you enter a plea of not guilty, you are considered comprehension of the consequence of his plea”?
to have waived any previous defect, like lack of Section 3 is actually taken from decided cases,
preliminary investigation or validity of arrest. even before the 1987 Constitution. Prior to the
Those things are deemed cured by entering a plea 1987 Constitution, there were so many people
of not guilty. sentenced to death based only on a plea of guilty.
The SC said, di pwede ito. Thus, all these
Now, going back to the GENERAL RULE, jurisprudence are culled and embodied in Section
when a person pleads guilty, no more trial, he can 3. Of course it became dormant for a while when
be convicted, EXCEPT when he is charged with a the death penalty could not be imposed. But na
capital offense. Let’s read Section 3:
naman eh. It’s now back to life [alleluia!] because of created by improvident pleas
the restoration of death penalty. acknowledging guilt, at times
belatedly discovered under the
I remember before, there was even a time judicial rug, if at all.”
before the 1987 Constitution, where: “The rationale behind the rule is
that courts must proceed with more
JUDGE: “Guilty or Not guilty? care where the possible punishment is
ACCUSED: “Guilty.” in its severest form — death — for the
JUDGE: “Do you understand what you reason that the execution of such a
are doing by pleading guilty?” sentence is irrevocable and experience
ACCUSED: “Yes.” has shown that innocent persons have
JUDGE: “Do you understand by pleading at times pleaded guilty. The
guilty, you are admitting all the primordial purpose then is to avoid
elements of the crime as alleged improvident pleas of guilt on the part
in the complaint?” of an accused where grave crimes are
ACCUSED: “Yes.” involved since he might be admitting
JUDGE: “And still you are pleading his guilt before the court and thus
guilty?” forfeit his life and liberty without
ACCUSED: “Yes.” having fully understood the meaning,
significance, and consequences of his
Sabi ng SC: Kulang ang mga tanong mo! Why plea. Moreover, the requirement of
are you asking those questions? What does the taking further evidence would aid the
layman know about those elements of the crime? Supreme Court on appellate review in
Use simple language para maintindihan niya! determining the propriety or
impropriety of the plea.”
Now, if we follow the jurisprudence after the
1987 Constituition, lalung mahirap! Ito yung
mahirap – shall conduct a searching inquiry into the PEOPLE vs. ALICANDO
voluntariness and full comprehension of the 251 SCRA 293
consequence of his plea.” That is a very general term
and we do not really know what is really the HELD: “To show the voluntariness
effect of that or its scope. If we will follow all the of the plea of guilt of the accused and
guidelines of the SC, it would seem that all judges that the court’s questions demonstrate
will not pass the test of conducting a searching the accused full comprehension of the
inquiry. There are some tests like the case of consequences of his plea, the records
must reveal information about the
PEOPLE vs. ALBERT personality profile of the accused
251 SCRA 136 which can serve as a trustworthy
index of his capacity to give a free and
HELD: “The controversy over informed plea of guilt. The age, socio-
improvident pleas of guilty dates back economic status and educational
to the early years of the American background of the accused must be
administration, developed into a furor plumbed by the trial court.”
over the succeeding years, subsided
during the martial law regime, and So, you must get the personality profile of the
was sidelined but occasionally accused – the age, socio-economic status as well
invoked when the 1987 Constitution as his educational background. Now, are the
proscribed the imposition of capital judges doing that? I don’t think so.
punishment. With the return of the
death penalty for heinous crimes, it is PEOPLE vs. ESTOMACA
high time for the trial courts to review 256 SCRA 421 (1996)
and reflect upon the jurisprudential
and statutory rules which evolved HELD: “Although there is no
over time in response to the injustice definite and concrete rule as to how a
trial judge may go about the matter of supporting evidence for a finding of
a proper "searching inquiry," it would culpability. (So, baliktad ‘no?) In short,
be well for the court, for instance, to once an accused, in a charge of capital
require the accused to fully narrate the offense enters a plea of guilty, a
incident that spawned the charges regular trial shall have to be
against him, or by making him reenact conducted. Just the same as if no such
the manner in which he perpetrated plea of guilty was not entered. The
the crime, or by causing him to furnish only effect of a plea of guilty, if ever, is
and explain to the court missing to serve as an additional mitigating
details of significance.” circumstance in case the penalty
“The trial court should also be imposable is less that an indispensable
convinced that the accused has not penalty and if the guilty plea is
been coerced or placed under a state of entered before the prosecution starts
duress either by actual threats of to present evidence.
physical harm coming from
malevolent or avenging quarters and So if we follow that guideline: MURDER, or
this it can do, such as by ascertaining other heinous crime; “Guilty!” Disregard it! Trial!
from the accused himself the manner So, bale wala yung plead of guilty because you
in which he was subsequently brought still have to conduct a trial just the same.
into the custody of the law; or whether
he had the assistance of competent
counsel during the custodial and SEC. 4. Plea of guilty to
non-capital offense; reception
preliminary investigations; and, of evidence, discretionary. –
ascertaining from him the conditions When the accused pleads guilty
under which he was detained and to a non-capital offense, the
court may receive evidence from
interrogated during the aforestated the parties to determine the
investigations. Likewise, a series of penalty to be imposed. (4)
questions directed at defense counsel
as to whether or not said counsel had Q: Can there be reception of evidence if the
conferred with, and completely accused enters a plea of guilty to a non-capital
explained to the accused the meaning offense?
of a plea and its consequences, would A: YES. There is no need for the presentation
be a well-taken step along those lines.” of evidence but if the court wants it, pwede rin,
the court can till require it. That is why reception
So, the judge must be very, very patient in of evidence is discretionary to determine the
conducting a searching inquiry. Kung sundin mo penalty to be imposed.
ito, it may take one or two days. Just take note
that we are talking about capital offense. PEOPLE vs. MENDOZA
231 SCRA 264
According to one commentator:
Before, the plea of guilty constituted FACTS: The accused was charged
the main evidence of guilt and the with Robbery before the RTC of
evidence taken during the further Malaybalay, Bukidnon. During the
inquiry was merely to aid the trial arraignment, the accused pleaded
court in exercising its discretion as to guilty. Instead of pronouncing
whether the lighter or graver penalty judgment, the court conducted trial.
is to be imposed. That is the original The prosecution failed to present
principle. But under the new evidence that the accused is guilty of
procedure, a plea of guilt is only a the crime, so Judge Mendoza acquitted
secondary basis, the main proof being the accused. The prosecution argued
that which the court requires the that the judge should not have
prosecution to establish the guilt of the acquitted him because he already
accused. The plea of guilty by the pleaded guilty.
accused can only be used as
ISSUE: Was the acquittal of the the court shall inform the
accused of his right to counsel
accused proper? and ask him if he desires to
have one. Unless the accused is
HELD: YES. Under the Rules, allowed to defend himself in
person or has employed counsel
when the accused pleads guilty to a of his choice, the court must
non-capital offense the court may assign a counsel de officio to
receive evidence from the parties to defend him. (6a)
determine the penalty to be imposed.
This rule is at most directory. Section 6 should be read with the ruling of the
Was the judge correct? “It will SC in the leading case of PEOPLE VS HOLGADO
certainly be a clear abuse of discretion (85 Phil. 752). In the said case, SC enumerated the
on the part of the judge to persist in duties of the court when the accused appears
holding the accused bound to his before it without a lawyer. The following are the
admission of guilt and sentencing him duties of the court:
accordingly when the totality of the
evidence points to his acquittal. There 1.) The court must inform the accused
is no rule which provides that simply that it is his right to have an attorney
because the accused pleaded guilty to before being arraigned;
the charge that his conviction 2.) After giving him such information, the
automatically follows.” court must ask him if he desires the
However, there is something aid of an attorney;
wrong here because the records will 3.) If he desires but is unable to employ
show that he pleaded guilty and yet an attorney, the court must assign an
he was acquitted, so let us harmonize attorney de oficio to defend him; and
the record. The correct procedure, 4.) If the accused desires to procure an
according to the SC, is for the judge to attorney of his own, the court must
order the withdrawal of the plea of grant him a reasonable time therefor.
guilty and substitute it with a plea of
SEC. 7. Appointment of counsel
not guilty. de oficio. – The court, considering
the gravity of the offense and the
difficulty of the questions that
may arise, shall appoint as counsel
This principle has been embodied in Section de officio such members of the bar
1[d] – “When the accused pleads guilty but presents in good standing who, by reason of
exculpatory evidence, his plea shall be deemed their experience and ability, can
competently defend the accused. But
withdrawn and a plea of not guilty shall be entered for in localities where such members of
him. (n)” the bar are not available, the
court may appoint any person,
SEC. 5. Withdrawal of resident of the province and of
improvident plea of guilty. – good repute for probity and
At any time before the judgment ability, to defend the accused.
of conviction becomes final, (7a)
the court may permit an
improvident plea of guilty to SEC. 8. Time for counsel de
be withdrawn and be substituted oficio to prepare for arraignment.
by a plea of not guilty. (5) – Whenever a counsel de oficio is
appointed by the court to defend
the accused at the arraignment, he
Q: Can a plea of guilty be withdrawn? shall be given a reasonable time to
A: YES. consult with the accused as to his
plea before proceeding with the
arraignment. (8)
Q: Suppose there is already a judgment of
conviction, can he still withdraw? SEC. 9. Bill of particulars. –
The accused may, before
A: YES, as long as the judgment of conviction arraignment, move for a bill of
is not yet final. particulars to enable him properly
to plead and prepare for trial. The
SEC. 6. Duty of court to motion shall specify the alleged
inform accused of his right to defects of the complaint or
counsel. – Before arraignment,
information and the details Upon motion of the accused

desired. (10a) showing good cause and with
notice to the parties, the
court, in order to prevent
Section 9 is similar to Rule 12 on bill of surprise, suppression, or
particulars. If the complaint is vague and alteration, may order the
ambiguous, the defendant in a civil case can more prosecution to produce and
permit the inspection and
for a bill of particulars. Counterpart, if the copying or photographing of any
allegations in the information are also vague and written statement given by the
ambiguous, “I cannot understand it, so I cannot complainant and other witnesses
in any investigation of the
intelligently enter my plea.” The accused, before offense conducted by the
arraignment, can move for a bill of particulars to prosecution or other
enable him to prepare properly for the trial. Then investigating officers, as well
as any designated documents,
he must specify the defects. Civil case, pareho. papers, books, accounts,
letters, photographs, object,
CINCO vs. SANDIGANBAYAN or tangible things not
otherwise privileged, which
202 SCRA 726 constitute or contain evidence
material to any matter involved
FACTS: A motion for bill of in the case and which are in
the possession or under the
particulars was filed by the lawyer of control of the prosecution,
the respondent in the fiscal’s office police, or other law
when the case was under preliminary investigating agencies. (11a)
investigation. (In preliminary
investigation, you are given the Section 10 deals also with a mode of discovery
affidavit of the complainant and his – production and inspection of material evidence in the
witnesses. And then you are given 10 possession of the prosecution. Not only that, the
days to submit your counter- accused can have access to all evidence in the
affidavits.) Here, the affidavit is vague possession not only of the prosecution but
according to the accused, so he is filing including those in the possession and control of
a bill of particulars. He wanted to the police and other law investigating agencies.
compel the complainant to make his Take note, if we follow the case of LIM VS FELIX,
affidavit clearer. JR, when the case is filed by the fiscal, meron
namang kaunting ebidensya na dun, so that, the
ISSUE: Is Section 9 applicable judge can review and find out if there is probable
when the case is still in the fiscal’s cause, but it is not really all.
office for preliminary investigation?
Q: So if the accused wants to see other
HELD: NO. It is only applicable evidence and the fiscal refuses, can the accused
when the case is already in court for file a motion to compel the fiscal to reveal?
trial or arraignment. A: YES, because take note of Rule 112, Section
But suppose during the 8 [b], the records of the preliminary investigation
preliminary investigation, “I cannot do not form part of the records of the case when it
understand what the complainant is reaches the court. That is why your remedy is to
saying in his affidavit?” The SC said, have them inspected. Let us good back to Rule
that is simple! If you cannot 112, Section 8:
understand what the complainant is
Rule 112, Section 8[b] Record
saying in his affidavit, chances are, the of preliminary investigation. – The
fiscal also will not understand it. And record of the preliminary
consequently, he will dismiss the case. investigation, whether conducted by
a judge or a prosecutor, shall not
Eh di mas maganda! Wag ka nalang form part of the record of the
mag-reklamo! [gago!] case. However, the court, on its
own initiative or on motion of any
party, may order the production of
the record or any of its part when
SEC. 10. Production or necessary in the resolution of the
inspection of material evidence case or any incident therein, or
in possession of prosecution. – when it is to be introduced as an
evidence in the case by the any significant erosion of the

requesting party.
constitutional right to due process of a
potential accused. that the finding of a
Another interesting case here on Section 10 is
probable cause by itself subjects the
the ruling in
suspects life, liberty and property to
real risk of loss or diminution. The fact
WEBB vs. DE LEON
that the law is silent does not mean
247 SCRA
that it does not apply. (Meaning, even
if it is under preliminary investigation,
FACTS: You know the story of
your liberty is already in danger.) The
Hubert Webb, the convict in that
right to discovery is rooted on the
Vizconde rape-homicide case.
constitutional protection of due
Somehow the defense discovered that
process which we rule to be
there were two (2) affidavits of Jessica
operational even during the
Alfaro (the State witness) which were
preliminary investigation of potential
executed before the NBI. Of course
accused.”
what was presented by the NBI to the
“In laying down this rule, the
DOJ was only one. So, the defense
Court is not without enlightened
filed a motion to compel the NBI to
precedents from other jurisdictions.
produce the other affidavit. This
The rationale is well put by Justice
happened when the case was under
Brennan in Brady – “society wins not
preliminary investigation.
only when the guilty are convicted but
when criminal trials are fair.” Indeed,
ISSUE: Can you apply Section 10
prosecutors should not treat litigation
when the case is still in the fiscal’s
like a game of poker where surprises
office? Because if you read Section 10,
can be sprung and where gain by guile
it applies when the case is already in
is not punished.”
court. The same with Section 9. Can
the mode of discovery under the Rules
of Court in criminal cases apply
So, the prosecutor should not hide anything
during the preliminary investigation?
because his job is not to convict but to see to it
that justice is done. I’ve been reading lately SC
HELD: “The issue is novel in this
recent decisions along that line na naman, where
jurisdiction as it urges an expansive
the SC said that your job Mr. Fiscal is not to
reading of the right of persons under
convict, but seek that justice is done. When you
preliminary investigation. It deserves
have no evidence, do not file. When there is no
serious consideration. So, the SC was
evidence in court, you move to dismiss the case –
intrigued: can you invoke the rights of
ikaw mismo! Do no insist in trying the case.
an accused during the trial when he is
still under preliminary investigation?”
And there was one decision where the SC
“To start with, our rules in
said, “What is the greatest achievement or moment of
criminal procedure does not expressly
a prosecutor?” Some may say when pagna-convict
provide for discovery proceedings
niya ang accused. That is an achievement but is it
during a preliminary investigation
not the greatest on your part. The greatest
stage of the criminal proceeding. But
achievement on you part is when you ask the
the SC noted, “This failure to provide
court to dismiss the case because there is no
discovery procedure during
evidence to convict the accused. That is the
preliminary investigation does not,
greatest achievement because that is your job – to
however, negate its use by a person
see to it that justice is done.
under investigation when
indispensable to protect his
constitutional fight to life, liberty and SEC. 11. Suspension of
property. Preliminary investigation is arraignment. – Upon motion by
not too early a stage to guard against the proper party, the
arraignment shall be suspended quash under Rule 117, Section 3 [h] –

in the following cases:
(a) The accused appears to that the information contains
be suffering from an unsound averments which in truth would
mental condition which constitute a legal excuse or
effectively renders him unable
to fully understand the charge justification.
against him and to plead But there is no prosecutor crazy
intelligently thereto. In such enough to file an information
case, the court shall order his
mental examination and, if admitting that the accused was insane
necessary, his confinement for when he committed the crime. That is
such purpose; tantamount to admitting that he is
(b) There exists a
prejudicial question; and exempt from liability. It is the defense
(c) A petition for review of who will prove insanity. So what is the
the resolution of the effect? You enter your plea of not
prosecutor is pending at either
the Department of Justice, or guilty and let’s go to trial and I will
the Office of the President; prove insanity as my defense.
provided, that the period of
suspension shall not exceed
sixty (60) days counted from 2. Suppose he became insane when the
the filing of the petition with case is set for arraignment but he was
the reviewing office. (12a) normal when he committed the crime?
Then we apply Rule 116, Section 11 –
What are the grounds for suspending an you move for the suspension of the
arraignment? There are three and let’s go over arraignment.
them one by one.
3. Suppose he became insane after the
(a) The accused appears to
be suffering from an unsound arraignment? You move to postpone
mental condition which the trial because he cannot adequately
effectively renders him unable
defend himself if he is crazy. The trial
to fully understand the charge
against him and to plead should be suspended.
intelligently thereto. In such
case, the court shall order his
mental examination and, if
4. Suppose he became insane when he is
necessary, his confinement for already convicted and serving
such purpose; sentence? Let us go back to the Penal
Code, Article 86 – it is a ground for a
When the accused is in an unstable condition, motion for the suspension of the
you cannot properly, intelligently inform him of execution of the sentence.
the nature of the charge. So example: Buang,
unstable condition, Let us suspend the Second ground:
arraignment. Let us wait for his recovery and as (b) There exists a
prejudicial question;
long as he is not yet recovered, the arraignment is
suspended indefinitely. For as long as he has not
recovered, the arraignment remains suspended. When there is a prejudicial question. Just
connect this with Rule 111, Section 6 – what do
BAR QUESTION : What are the legal effects of you mean by a prejudicial question, the elements,
insanity or unsound mental condition of the when do you raise them. When the case is in
accused? court, suspend the trial, suspend the arraignment,
A: It DEPENDS as to when was he insane – lets wait for the civil case to be decided.
1. Suppose he was insane at the time he
committed the crime but now he is The third ground is new:
OK, then that is not a ground for the
(c) A petition for review of
suspension of the arraignment, not the resolution of the
even a ground for a motion to quash prosecutor is pending at either
the Department of Justice, or
unless the information admits that he the Office of the President;
is insane when he committed the provided, that the period of
crime in which case you can move to suspension shall not exceed
sixty (60) days counted from

the filing of the petition with
the reviewing office.
Based on existing jurisprudence, when the


prosecutor says “File the case,” technically, the “Man has not invented a reliable compass by
accused can appeal that although generally that is which to steer a marriage in its journey over
not appealable because of the MOGUL doctrine. troubled waters. Laws are seemingly inadequate.
As a general rule, the DOJ should no longer Over time, much reliance has been placed in the
works of the unseen hand of Him who created all
entertain an appeal from the resolution of the things.
fiscal stating that the case should be filed because “Who is to blame when a marriage fails?
the court may not follow the DOJ. That is what “Love is useless unless it is shared with
happened in the case of Mogul. Sabi ng DOJ, ”no another. Indeed, no man is an island, the cruelest
probable cause, Fiscal, you dismiss” Sabi ng court, act of a partner in marriage is to say “I could not
have cared less.” This is so because an ungiven
“No, Fiscal, you continue!”
self is an unfulfilled self. The egoist has nothing
but himself. In the natural order, it is sexual
The problem is when the case reaches the intimacy which brings spouses wholeness and
court, in most cases, the lawyer of the accused oneness. Sexual intimacy is a gift and a
will move for the suspension of the arraignment participation in the mystery of creation. It is a
function which enlivens the hope of procreation
because he will say, “I have a pending petition for
and ensures the continuation of family
review of the resolution in the DOJ.” According to relations.”
the circular of the DOJ, the petition for review can
only be entertained if the accuse has not been – Justice Torres, Jr. on the issue of psychological
incapacity
arraigned, kung na-arraign na, wala na. But
normally courts will honor that. That court will
say, “alright, let us suspend and wait for the CHI MING TSOI vs. COURT OF APPEALS
G.R. No. 119190, January 16, 1997
resolution of the DOJ.” That is why it is a ground
for suspension.
The trouble is this: how long does it take for

the DOJ to resolve it? If they can resolve it within
2 or 3 years, you are lucky, the case cannot go on
because the DOJ is not done yet. This has been
the cause of delays. That’s why the new rules
says, “provided, the suspension will not exceed
60 days counted from the filing of the petition
with the reviewing office.” This is tantamount to
the SC indirectly telling the DOJ or the reviewing
office (Provincial State Prosecutor) na “bilisan
ninyo”. If the petition is not acted within that
period, let’s proceed with the arraignment,
“bahala na kayo dyan!”
At least there is now a deadline. And that is

good. I really like this amendment. It is the
accused who filed the petition for review who is
under pressure – to pressure the DOJ to resolve
because the suspension is only good for 60 days.
Unlike before where the pressure is in the
offended party because the case cannot run while
the petition for review is pending. Now, I do not Rule 117
know whether the DOJ right now, can do in 60
days what they have been failed to do for years.
MOTION TO QUASH
(c) That the court trying

SECTION 1. Time to move to the case has no jurisdiction
quash. – At any time before over the person of the accused;
entering his plea, the accused may (d) That the officer who
move to quash the complaint or filed the information had no
information. (1) authority to do so;
(e) That it does not conform
substantially to the prescribed
SEC. 2. Form and contents. – form;
The motion to quash shall be in (f) That more than one
writing, signed by the accused or offense is charged except when
his counsel and shall distinctly a single punishment for various
specify its factual and legal offenses is prescribed by law;
grounds. The court shall consider (g) That the criminal action
no ground other than those stated or liability has been
in the motion, except lack of extinguished;
jurisdiction over the offense (h) That it contains
charged. (2a) averments which, if true, would
constitute a legal excuse or
justification; and
(i) That the accused has
In civil cases, within the time for but before been previously convicted or
acquitted of the offense
filing the answer to the complaint, the defendant charged, or the case against
may move to dismiss the case on certain specified him was dismissed or otherwise
grounds under Rule 16. In criminal procedure terminated without his express
consent. (3a)
naman, at anytime before entering the plea, the
accused may move to quash the complaint or
information.
1ST GROUND: (A) THAT THE FACTS
CHARGED DO NOT CONSTITUTE AN
Take note that under Section 2, the motion to OFFENSE;
quash partakes the nature of an omnibus motion
because the court will consider no ground other
than those stated in the motion. The court will not The counter part of this in civil cases is, that
quash a complaint or information on a ground the pleading asserting the claim states no cause of
that you did not cite. This is because you can action.
waive this right.
Q: How do we know the complaint or
The only ground the court will consider moto information do not constitute an offense?
propio, is lack of jurisdiction over the offense A: You look at the allegations in the
charged, even if not raised in the motion to complaint. If the facts alleged do not constitute
quash. The theory is that: “No amount of silence any crime, then the information should be
on the party of the accused will grant the court quashed. This was emphasized in the case of
jurisdiction over the subject matter of the case.”
Jurisdiction over the subject matter is conferred
by law. LOPEZ vs. SANDIGANBAYAN
October 13, 1995
Q: What are the grounds for a motion to
quash? HELD: “As a general proposition,
A: Section 3: a motion to quash on the ground that
the allegations of the information do
not constitute the offense charged, or
SEC. 3. Grounds. The
accused may move to quash the any offense for that matter should be
complaint or information on any resolved on the basis alone of said
of the following grounds:
allegations whose truth and veracity
(a) That the facts charged
do not constitute an offense; are hypothetically admitted. However,
(b) That the court trying additional facts not alleged in the
the case has no jurisdiction
over the offense charged;
information, admitted or not denied
by the prosecution may be invoked in
support of the motion to quash.”
the time, the place, etc. then in Rule 112 a

certification is required. The fiscal will certify that
2ND GROUND: (B) THAT THE COURT I have conducted the preliminary investigation, etc.
TRYING THE CASE HAS NO JURISDICTION that is the form. The fiscal will certify that the
OVER THE OFFENSE CHARGED; other party has given the chance to be heard. If
the same was not afforded the accused, he can
3RD GROUND: (C) THAT THE COURT move to dismiss the case.
TRYING THE CASE HAS NO JURISDICTION
OVER THE PERSON OF THE ACCUSED; Q: Now, what is your ground to quash?
A: You say, “It does not comply with the
Instances when the court has no jurisdiction: prescribed form” because the correct form
1.) the court has no jurisdiction to try the requires certification. It is a ground for a motion
case because of the penalty; to quash.
2.) the court has no jurisdiction to try the
offense because it is committed in 6TH GROUND: (F) THAT MORE THAN
another place – territorial jurisdiction; ONE OFFENSE IS CHARGED EXCEPT WHEN A
or SINGLE PUNISHMENT FOR VARIOUS
3.) the court has no jurisdiction over the OFFENSES IS PRESCRIBED BY LAW;
person of the accused because the
latter has never been arrested and This refers to a duplicitous complaint or
never surrendered himself. information – when it charges more than one
offense under Rule 110, Section 13. It is not
allowed. However under Rule 120, Section 3 it is
4TH GROUND: (D) THAT THE OFFICER waivable. If the accused fails to object to it before
WHO FILED THE INFORMATION HAD NO trial, the court may convict him of as many
AUTHORITY TO DO SO; offenses as are charged and proved, and impose
on him the penalty for each offense,
Q: Who has the authority to file the case?
A: Prosecutor.
7TH GROUND: (G) THAT THE CRIMINAL
So if it was the clerk who signed for the city ACTION OR LIABILITY HAS BEEN
prosecutor (e.g. By: Kent Clark – clerk typist), the EXTINGUISHED
accused can move to quash because the clerk is
not authorized. Remember, if the fiscal filed an Q: How is criminal liability extinguished?
information without the previous complaint A: Under Article 89 of the RPC:
signed by the victim or by the parents, the same 1.) by death of the convict;
can be quashed. 2.) by service of sentence;
3.) by amnesty;
CUDIA vs. COURT OF APPEALS 4.) by absolute pardon;
January 16, 1998 5.) by prescription of the crime;
6.) by prescription of the penalty;
HELD: “An infirmity in the
information, such as lack of authority EXAMPLE: The information should be filed
of the officer signing it, cannot be only within 5 years but the charge was filed on
cured by silence, acquiescence, or even the 7th year. So you can move to quash because
by express consent.” the liability has already been extinguished by
prescription.
5TH GROUND: (E) THAT IT DOES NOT

CONFORM SUBSTANTIALLY 8TH GROUND: (H) THAT IT CONTAINS
TO THE PRESCRIBED FORM; AVERMENTS WHICH, IF TRUE, WOULD
CONSTITUTE A LEGAL EXCUSE OR
You know very well the form of complaint or JUSTIFICATION
information. You go back to Rule 110 – you state
The complaint or information contains admit that it is privileged in nature. If

averments which if true would show that you are it is not stated there, then it is not
NOT liable. admitted.
“The privilege should be absolute,
SITUATION: The information says that there not only qualified. Where, however,
is a case of homicide because in such certain date these circumstances are not alleged in
Rose stabbed Rucel because Rucel tried to stab the information, quashal is not proper
Rose first. The information is admitting that Rose as they should be raised and proved as
acted in self-defense. Prosecutor himself admits defenses. With more reason is it true
that Rose acted in self-defense. Therefore, the in the case of merely qualifiedly
information admits the existence of a justifying privileged communications because
circumstance. such cases remain actionable since the
defamatory communication is simply
SITUATION: You are charged for committing presumed to be not malicious, thereby
a crime and when you committed it, you are out relieving the defendant of the burden
of your mind. Thus, it admits insanity. So you can of proving good intention and
move to quash on the ground that the justifiable motive. The burden is on
information admits that you are insane. the prosecution to prove malice. Thus,
even if the qualifiedly privileged
That is what is meant by a complaint or nature of the communication is
information which contains averments which if alleged in the information, it cannot be
true, constitute a legal excuse or justification. Of quashed especially where prosecution
course this is very rare ‘noh? Why will the fiscal opposes the same so as not to deprive
allege in the information something that is the latter of its day in court, but
favorable to you? This is very queer. prosecution can only prove its case
after trial on the merits.”
One of the most interesting case here is the
1994 case of
9TH GROUND: (I) THAT THE ACCUSED
DANGUILAN-VITUG vs. HAS BEEN PREVIOUSLY CONVICTED OR
COURT OF APPEALS ACQUITTED OF THE OFFENSE CHARGED, OR
232 SCRA 460 [1994] THE CASE AGAINST HIM WAS DISMISSED OR
OTHERWISE TERMINATED WITHOUT HIS
FACTS: Danguilan was a EXPRESS CONSENT.
columnist in a newspaper and was
charged for libel for writing in a This is known as the defense against double
column something which is jeopardy. The double jeopardy as a ground for a
discriminating. According to her the motion to quash is the most complicated ground.
information should be quashed That is why it is thoroughly discussed in Section
because it was a privileged 7. We will go now to Section 4.
communication.
SEC. 4. Amendment of
complaint or information. – If
HELD: NO, it cannot be quashed the motion to quash is based on
because of “paragraph [g] of Section 3 an alleged defect of the
complaint or information which
Rule 117 which states that the accused
can be cured by amendment, the
may move to quash the complaint or court shall order that an
information where it contains amendment be made. (4a)
If it is based on the ground
averments which, if true, would that the facts charged do not
constitute a legal excuse or constitute an offense, the
justification. Hence, for the alleged prosecution shall be given by
the court an opportunity to
privilege to be a ground for quashing correct the defect by
the information, the same should have amendment. The motion shall be
been averred in the information itself.” granted if the prosecution
fails to make the amendment, or
Meaning, the information should
the complaint or information – An order sustaining the

still suffers from the same motion to quash is not a bar to
defect despite the amendment. another prosecution for the
(n) same offense unless the motion
was based on the grounds
specified in section 3 (g) and
Actually, some of the grounds of a motion to (i) of this Rule. (6a)
quash are harmless, they are not fatal. They can
be cured by amendments.
SITUATION: An information is filed against
The second paragraph of Section 4 is new. It you and it is not in the prescribed form.
was merely inserted to complement the first
paragraph. Q: What would the court do?
A: Based on Section 4, the court will, instead
EXAMPLE: Motion to quash that the of quashing , allow the fiscal to amend. And your
information does not comply with the prescribed motion is already moot and academic. But
form because taking of oath was forgotten. I do suppose the court will quash the information
not think the court will order for the dismissal of because it was filed by somebody who was not
the criminal case because of that. It will instead authorized to file and the motion to quash is
issue an order directing the fiscal to amend, “Take sustained, it does not mean to say that the case
the oath, so it will be cured.” This is a ground for cannot be re-filed since the defects are incurable.
quashal which is not a serious defect but only a
formal defect. Thus, instead of quashing the SITUATION: The case of homicide is filed in
information the court may extend the right to the the MTC when actually it should be filed in the
fiscal to amend the complaint or information RTC. Since the MTC has no jurisdiction, you file a
since the name is curable. motion to quash. And the judge shall quash it.
However under the second paragraph, Q: What would the fiscal do?
despite the lapse of so many days, the prosecutor A: Tomorrow he will re-file it. So when the
did not file the amended information or even if case is dismissed on such a ground – lack of
he filed the corrected information, pero ganun pa jurisdiction or it does not conform with the
rin, the defect is still there, I will rather move to prescribed form – the rule is it is not a bar to re-
quash the information. file the case. It can be filed again.
We will take up Section 5 together with EXCEPT when the ground for dismissal is
Section 6. falling under paragraphs [g] and [i] of Section 3,
Rule 117.
SEC. 5. Effect of sustaining
the motion to quash. – If the
motion to quash is sustained, Q: What is paragraph [g]?
the court may order that A: “That the criminal action or liability has been
another complaint or
information be filed except as extinguished.” If the case is quashed on this
provided in section 6 of this ground, that is the end since the same is
rule. If the order is made, the extinguished already. You cannot re-file it
accused, if in custody, shall
not be discharged unless anymore.
admitted to bail. If no order
is made or if having been made, Q: What is paragraph [i]?
no new information is filed
within the time specified in A: “that the accused has been previously convicted
the order or within such or acquitted of the offense charged, or the case against
further time as the court may him was dismissed or otherwise terminated without his
allow for good cause, the
accused, if in custody, shall express consent.” So you cannot re-file the
be discharged unless he is also information because of double jeopardy.
in custody of another charge.
(5a)
As a general rule, all other grounds for
SEC. 6. Order sustaining the motion to quash even if granted will not really be
motion to quash not a bar to a total victory for the accused. That is why some
another prosecution; exception.
lawyers will never bother to file a motion to
quash anymore. This is because once you file it, Q: When do you apply it?
the same case would be re-filed. As a matter of A: That is for the lawyer to judge. Will you
fact, there are cases when it is not advisable to file use it or not? In other words, there is a need for
a motion to quash unless there is a serious reason. you to have a clear picture of the situation. You
It is a matter of judgment. If you think it will not must not only know the Rules of Court but also
benefit you client, then do not file it. Like in when the law must be used. An example is a
preliminary investigation some lawyers will not motion to quash. How to apply it.
submit to criminal investigation most especially if
they believe the fiscal will file because of probable However, when a case is quashed on the
cause. Better if I will not file so that you will not ground that the criminal liability has been
know who are my witnesses or statements. extinguished or the accused is placed in double
jeopardy, once it is quashed, that is the end. It
As a matter of fact that happened already. cannot be re-filed.
There was a case wherein the information stated
that the accused issued five (5) checks, with
SEC. 7. Former conviction or
different dates, all are post-dated. All five checks acquittal; double jeopardy. –
bounced. So, a complaint against the accused was When an accused has been
filed before the fiscal. What the fiscal did was to convicted or acquitted, or the
case against him dismissed or
file one case for estafa reciting there that the otherwise terminated without
accused issued five checks of five different dates his express consent by a court
with different maturities, and all bounced. of competent jurisdiction, upon
a valid complaint or
information or other formal
So it turned out that the information is charge sufficient in form and
duplicitous because every check should have substance to sustain a
conviction and after the
been one case. You know what the lawyer for the accused had pleaded to the
accused did? He file a motion to quash stating charge, the conviction or
that the information charges more than one case acquittal of the accused or the
dismissal of the case shall be
of estafa. The lawyer was correct, so the a bar to another prosecution
dismissed the information. The following day, the for the offense charged, or for
fiscal filed 5 informations. One case for every any attempt to commit the same
or frustration thereof, or for
check. In effect there are five warrants of arrest any offense which necessarily
already. Then the accused asked his lawyer, includes or is necessarily
included in the offense charged
“Atty, what happened? Before I have only one
in the former complaint or
case. Now, there are already five!” information.
However, the conviction of
the accused shall not be a bar
Q: If you are the lawyer, how will you explain to another prosecution for an
that? offense which necessarily
A: Actually, legally you are correct. An includes the offense charged in
the former complaint or
information should charge only once crime. But information under any of the
since t charges five crimes so you move to quash following instances:
which is a valid ground. But look at the effect – (a) the graver offense
developed due to supervening
the accused now has five warrants. Can you say, facts arising from the same act
it is because of a duplicitous information? He or omission constituting the
cannot understand that. former charge;
(b) the facts constituting
the graver charge became known
That is why there is difference in just or were discovered only after a
knowing the law from knowing how to apply the plea was entered in the former
complaint or information; or
law. You should know the law and you should (c) the plea of guilty to
know how to use it. If it is not in you interest, do the lesser offense was made
not use it. Why move to quash when by doing so without the consent of the
prosecutor and of the offended
would worsen your situation. Of course, there are party except as provided in
also instances where there is a need to object by section 1(f) of Rule 116.
virtue of a duplicitous information. In any of the foregoing
cases, where the accused
satisfies or serves in whole or also under the national law. It is not the same
in part the judgment, he shall
be credited with the same in crime because it is punished by two laws, so
the event of conviction for the there must be two crimes.
graver offense. (7a)
However the sentence says, that if you are
acquitted or prosecuted under the national law,
One important ground for a motion to quash you cannot anymore be acquitted or convicted
is Section 7 on double jeopardy which is also under the city or municipal ordinance all over
found in the Constitution – Section 21, Article 3 again or vice-versa. You are protected for the
on the Bill of Rights. same act not for the same offense.
Q: Define jeopardy? Now, the best illustrative case comparing the

A: Jeopardy is the peril in which a person is first and the second sentences is the 1987 case of
put when he is regularly charged with a crime PEOPLE vs. RELOBA, infra where Justice
before a tribunal properly organized and Feliciano traced the history of double jeopardy
competent to try him. (Commonwealth vs. staring from the 1935 Constitution.
Fitzpatrick, 1 LRA 451)
PEOPLE vs. RELOVA
Meaning, if a case is filed against you before 148 SCRA 292
a court which is competent to try you, then from
that moment, there is a risk, danger or peril. FACTS: The accused installed an
Everytime there is peril, there is jeopardy. And electrical connection without permit.
after what happened to you, whether you are He was charged with theft under the
acquitted or convicted or the case was dismissed RPC – theft of electricity. And it so
without your consent, later on ibalik ka naman in happened that in that place, there was
the second time around, ah hindi puwede yan. It an ordinance passed by the municipal
is inhuman to put you in jeopardy twice. council making it a crime for you to
make an electrical connection without
permit.
Let’s go to the Constitution. Under Article 3, So he was charged both for
Section 21, there are two (2) sentences: violation of the RPC and the
municipal ordinance. The accused
1.) “No person shall be twice put in filed a motion to quash the second
jeopardy of punishment for the same information, stating that he has
offense.” and already been charged for theft of
2.) “If an act is punished by a law or electricity. The prosecution contended
ordinance, conviction or acquittal in that the first charge was theft under
either shall constitute a bar to another the RPC and the prosecution is
prosecution for the same act.” charging him not for theft but for
illegal electrical connection under the
The first sentence is what you call protection municipal ordinance.
against double jeopardy of punishment for the
same offense. The second sentence is what you call ISSUE #1: What is the reason why
the protection against double jeopardy for the there are 2 rules in the provision on
punishment of the same act. So there is double double jeopardy?
jeopardy for the same offense and double HELD: “If the second sentence of
jeopardy for the same act. The second sentence is the double jeopardy provision had not
not the same offense, but it is the same act. been written into the Constitution,
conviction or acquittal under a
The second sentence says that the act is municipal ordinance would never
punished by a law passed by Congress and it iis constitute a bar to another prosecution
also punished for example, by an ordinance for the same act under a national
passed by the City or Municipal Council. So it is a statute. An offense penalized by
crime under the municipal or city ordinance and municipal ordinance is, by definition,
different from an offense under a whenever he might see fit, subject to

statute. The two offenses would never no other limitation or restriction than
constitute the same offense having his will and pleasure. The accused
been promulgated by different rule- would never be free from the cruel
making authorities — though one be and constant menace of a never
subordinate to the other — and the ending charge, which the malice of a
plea of double jeopardy would never complaining witness might hold
be. The discussions during the 1934- indefinitely suspended over his head.”
1935 Constitutional Convention show
that the second sentence was inserted
precisely for the purpose of extending Let’s go to the double jeopardy rule.
the constitutional protection against
double jeopardy to a situation which Q: Bar Question: What are the requisites of
would not otherwise be covered by double jeopardy?
the first sentence.” A: The SC tried to compressed that 2
paragraphs (of Section 7) in only 3 sentences in
ISSUE #2: Was there double the case of
jeopardy?
HELD: The purpose of installing PEOPLE vs. BOCAR (138 SCRA
illegal connection is to steal electricity, 166) reiterated in
which is also theft. In other words, it is PANGAN vs. PEOPLE (155 SCRA
the same act of installing which is 45)
punishable. Since you are acquitted or
convicted under the national law, you HELD: To raise the defense of
cannot be prosecuted under a double jeopardy, three (3) requisites
municipal law. You are protected by must be present:
the second sentence of double 1.) The first jeopardy must
jeopardy in the Constitution: “If an act have been attached prior to
is punished by a law or ordinance, the second;
conviction or acquittal in either shall 2.) The first jeopardy must be
constitute a bar to another validly terminated; and
prosecution for the same act.” 3.) The second jeopardy must
be for the same offense as
However, Section 7 is not concerned with the that of the first.
second sentence but with the first sentence – the
protection against double jeopardy from being
punished for the same offense. This is similar to Well, this is my advice, for purposes of
res adjudicata. The SC explained the rational answering the question on double jeopardy and
behind the double jeopardy rule in the case of in order to understand completely the double
jeopardy rule, let us analyze Section 7 by dividing
MALLARI vs. PEOPLE it into three (3) parts:
168 SCRA 422
A.) WHAT ARE THE REQUISITES OF
HELD: “The rule against double DOUBLE JEOPARDY IN ORDER TO
jeopardy protects the accused not ATTACH?
against the peril of second punishment
but against being tried for the same B.) IN WHAT INSTANCES MAY THE
offense. Without the safeguard this ACCUSED INVOKE THE PROTECTION
rule establishes in favor of the OF DOUBLE JEOPARDY? and
accused, his fortune, safety and peace
of mind would be entirely at the C.) ASSUMING THAT ALL THE
mercy of the complaining witness who REQUISITES OF DOUBLE JEOPARDY,
might repeat his accusation as often as THE ACCUSED IS PROTECTED
it is dismissed by the court and AGAINST FROM WHAT OFFENSE?
In effect, Section 7 talks of those three. Let’s IT IS FILED IN A COURT OF COMPETENT

start with the first one: JURISDICTION
CASE: A case of homicide is filed in the MTC;

A.) WHAT ARE THE REQUISITES that will be dismissed in MTC for lack of
jurisdiction. But that can be cured if the fiscal
OF DOUBLE JEOPARDY IN ORDER
will file the information of homicide in the RTC.
TO ATTACH? Is there double jeopardy?
A: None. The accused was never in jeopardy
Q: When does the first jeopardy attach?
because the first information was filed before the
A: It attaches when the following requisites are
wrong court. There was no danger of being
present:
convicted based on the case filed. (People vs.
1. The former complaint or information
Salico, 84 Phil. 722)
is valid;
2. It was filed in a court of competent
jurisdiction;
3. The accused had been arraigned under
B.) ASSUMING THAT THE
said complaint or information; and REQUISITES OF DOUBLE
4. The accused had pleaded to the same. JEOPARDY ARE PRESENT, IN
WHAT INSTANCES MAY THE
THE FORMER COMPLAINT OR ACCUSED INVOKE THE
INFORMATION IS VALID
PROTECTION OF DOUBLE
Q: When is a complaint or information valid JEOPARDY?
within the meaning of the double jeopardy rule?
A: The requisites are: Q: In what instances may the accused invoke
1. if it charges an offense; (People vs. the protection of double jeopardy?
Austria, 94 Phil. 897) A: In the following:
2. if it is filed by a person or officer 1.) when the accused had been previously
legally authorized to do so. (People convicted;
vs. Kho, 97 Phil. 825) 2.) when the accused had been previously
acquitted; and
CASE: An information was filed against Mr. 3.) when the case against the accused had
Acelar for theft. Mr. Acelar moved to quash on been dismissed or otherwise
the ground that the information does not charge terminated without his express
any offense. The court agreed and the consent.
information was quashed. So, the fiscal corrected
the information and re-filed it. Mr. Acelar moved Let’s go to a decided case: The fiscal filed a
to quash on the ground of double jeopardy. Is case against you for homicide alleging that on a
there double jeopardy? certain day you killed Juan dela Cruz. While the
A: There is no double jeopardy for the case is pending, the fiscal filed a second
following reasons: information for the same homicide committed on
1. The dismissal of the first information the same day by the same accused. So you are
was on motion of the accused. now facing two charges for the same homicide.
Therefore, it was a dismissal with his Can you move to quash the second information
express consent. Diyan palang, tumba on the ground of double jeopardy?
ka na!
2. The accused moved to quash the first In so many cases, like in the case of Buscayno
information on the ground that it did vs. Milatary Commission, the SC said NO, because
not charge an offense. Therefore, it you have not been acquitted or convicted. The
was not a valid information. So, the first case was not validly terminated kay pending
accused was never in jeopardy. pa man. In civil case, that is litis pendencia. Now,
(People vs. Reyes, 98 Phil. 646) if the case is already decided, convicted or
acquitted, or dismissal without his express
consent, then there can now be double jeopardy. because of the violation of the right of the accused
In civil case that is res adjudicata. to speedy trial.
However in the case of People vs. City Court of In the same manner, for double jeopardy to
Manila (121 SCRA 627), the SC made a attach, the law says, the case must have been
pronouncement that mere pendency of a criminal dismissed without your express consent. So, as a
case against the accused can be invoke as a general rule, when the accused himself files a
ground for double jeopardy. motion to dismiss, he cannot invoke double
jeopardy because he himself intended the
So, which is which? The issue has been dismissal of his case; it is with his express
resolved in the 1993 case of consent.
PEOPLE vs. PINEDA

219 SCRA 1 DISMISSAL WITHOUT THE EXPRESS
CONSENT OF THE ACCUSED
HELD: “The mere filing of two (2)
informations charging the same We will explore the first issue: Whether or
offense is not an appropriate basis for not the dismissal is with the express consent of
the invocation of double jeopardy the accused. One of the interesting cases
since the first jeopardy has not yet set interpreting the meaning of the phrase is the 1993
in by a previous conviction, acquittal case of
or termination of the case without the
consent of the accused.”
PEOPLE vs. VERGARA
“The ambiguity stirred by the
221 SCRA 960
imprecise observation in People vs. City
Court of Manila, a 1983 case, can now
FACTS: Vergara was accused of
he considered modified in that a prior
frustrated murder for allegedly
conviction, or acquittal, or termination
conspiring with some people. While
of the case without the express
the case is pending, the accused asked
acquiescence of the accused is still
the provincial prosecutor for a
required before the first jeopardy can
reinvestigation of the case. The request
be pleaded to abate a second
was granted. After reinvestigation,
prosecution.”
the prosecutor made a finding that
there was no crime because the
Now, the law says that you have been
accused acted in self-defense.
convicted or acquitted, or a case against you have
Therefore, the prosecutor moved for
been dismissed without you express consent.
the dismissal of the case in court. The
That is what you mean by “the first jeopardy has
trial court granted the motion for
already been terminated.” But take note that this is
dismissal of the case for frustrated
not a key for the prosecutors to file several the
murder.
same cases against the accused. The law only
However, when the fiscal made a
provides that you cannot raise the defense of
finding that there was no probable
double jeopardy in this situation. But you can
cause, in the meantime naman, the
question the acts of the prosecution to his
complainant appealed such finding to
superior or you may file an injunction case citing
the Secretary of Justice. The
the case of Brocka vs. Enrile. But definitely you
recommendation of the prosecutor
cannot use double jeopardy as defense.
was disapproved. Sabi ng DOJ, “No,
there is a case here. Provincial
Q: What is the difference between acquittal
prosecutor, i-re-file mo.” So, there was
and dismissal of the case?
another information for frustrated
A: Generally, dismissal is not on the merits.
murder filed against the same accused.
But there are dismissals which are classified as
This time, the accused pleaded Double
acquittal, like demurrer to evidence, or dismissal
Jeopardy. Bakit? According to the accused to the dismissal of the case in

accused: the lower court is to strain the
meaning of ‘express consent’ too far.
ACCUSED: “The cases Simply, there was no express consent
were dismissed upon motion of the accused when the prosecutor
of the prosecutor; I was not the moved for the dismissal of the original
one who filed the motion. So, Informations.”
when the case was dismissed,
it was dismissed without my
express consent.” There was a second issue in the case of
COMPLAINANT: “No, VERGARA based on the rule on motion. In
why did you ask for general, when you file a motion, you must
reinvestigation? Di ba, the furnish a copy of the motion to the adverse party
purpose is that it will lead to because, generally, motions cannot be filed ex-
the dismissal of the case? So, parte unless the motion is non-controversial.
when you filed a motion for Therefore, when the prosecution filed a motion to
reinvestigation, in effect, you dismiss ex-parte [without furnishing the parties a
are seeking a dismissal with copy of the motion].
your express consent.”
ACCUSED: “No! Express
consent is different from
intention. When I filed a PEOPLE vs. VERGARA, supra
motion for reinvestigation, my
intention was to let the case be ISSUE: Is there a necessity to
dismissed, but I did not give furnish the parties a copy of the
my express consent. While I motion to dismiss?
may have intended to let the HELD: NO. It is not necessary. Is
case be dismissed upon there a necessity to furnish the accused
moving for reinvestigation, I a copy of the motion to dismiss? Do
never give my express consent you think the accused will oppose the
for the dismissal of the case. It motion? Of course not because it is
was the prosecutor himself favorable to him. Definitely, the
who did it.” accused will not question the filing of
the motion to dismiss the criminal
ISSUE: Is there double jeopardy? case.
As to the complainant, is there a
HELD: YES, there is double necessity for the prosecutor to furnish
jeopardy. When you say express a copy of the motion to dismiss the
consent, the consent must be criminal case to the private offended
categorical, clear. You cannot infer party? Remember, every criminal case
that by simply asking for is under the direction and control of
reinvestigation. You cannot infer that the prosecutor. If we will allow the
there is express consent; that is not general rule, if the victim will question
within the concept. the dismissal, he will be having
“Express consent has been defined control and no longer the prosecutor.
as that which is directly given either The prosecutor determines whether
viva voce or in writing. It is a positive, there is a case or none. Therefore,
direct, unequivocal consent requiring there is also no necessity of furnishing
no inference or implication to supply to the private offended party a copy of
its meaning. This is hardly what the the motion to dismiss.
accused gave. What they did was What should be the remedy of the
merely to move for reinvestigation of private offended party? Because the
the case before the prosecutor. To offended party is aggrieved, imagine
equate this with express consent of the nawala ang kaso niya! The remedy,
when the court ordered the dismissal dahil mali ang fi-nile mo. The accused
of the case, is to appeal the order of claimed that he was charged for the
dismissal because it is also adverse to same act. Thus, he moved for the
their claim for civil liability. Instead, dismissal of the frustrated murder
they allowed the order of dismissal to case.
become final and, now, they are
arguing that the order of dismissal is ISSUE: Is there double jeopardy?
void. They should have appealed it.
HELD: NONE. There was no
double jeopardy because the order of
One last point. According to the law, if a case the trial court dismissing the physical
is dismissed without your express consent, that injury case is wrong. It was a void
could be a basis for double jeopardy. order because what the judge should
HOWEVER, jurisprudence says, an order have done is to continue trying the
dismissing a case will NOT constitute double case even if there was an error in the
jeopardy if the order of dismissal is NULL and offense charged. So, if the accused
VOID. Meaning, an order of dismissal of a case would be convicted, it is for physical
will constitute double jeopardy on the injuries. In other words, you cannot
assumption that the order of dismissal was a order dismissal and then re-file the
valid order of dismissal. case for frustrated murder. Because
the order dismissal is void, there is no
Q: What is the usual reason why an order of double jeopardy.
dismissal is void?
A: The usual reason is when the prosecution However, there was one dissenting justice in
was deprived of due process. That has been the case of Bogol – former Justice Makasiar. He
exemplified in many cases. One of the cases is said that “there is double jeopardy as the case had
Senator Aquino et al. Na-acquit man yan sila ba. already been tried and submitted for decision
These people were already acquitted by the where the MTC judge ordered the physical injury
Sandiganbayan. How come nabalik ang kaso? to be dismissed and ordered the filing of a new
On the theory that everything was pre-arranged case for frustrated murder in the RTC. Frustrated
including the acquittal. The SC said, the acquittal murder includes physical injuries. Therefore,
of the case is null and void because the dismissal of the latter resulted in double
prosecution was deprived of due process in the jeopardy.”
sense that no matter what it does, the acquittal of
the accused was already pre-ordained. So there is If you look at it, talagang tama siya (Makasiar,
no double jeopardy. J.) eh – all the elements are there. But the trouble
is, sabi ng SC, the order of dismissal is void, there
That has been applied in many cases like in was no valid dismissal – ibalik! The charge for
the case of physical injury was reinstated.
Another instance, the 1992 case of

PEOPLE vs. MOGOL
131 SCRA 296 GORREON vs. RTC OF CEBU
213 SCRA 138
FACTS: The accused was charged
with physical injuries. After trial in FACTS: The case was set for pre-
the MTC, the court discovered that it trial for 2 days (September 27 and 28).
should not have been physical injuries, On the first day of the trial, the
rather it should have been frustrated offended party was there pero wala
murder because there was intent to ang accused. The court said, “We will
kill eh. The MTC dismissed the case of have to cancel the hearing for today
physical injuries and told the fiscal to and tomorrow on the presumption
file information for frustrated murder that maybe they did not receive the
notice.” The trouble is the following plausible explanation may be offered

day, paglabas ng court calendar, for such lapse.”
nandoon pa rin ang kaso – it was
supposed to be cancelled. This time, That is a demonstration of the rule that when
ang accused naman ang sumipot, ang the order of dismissal is null and void, you
offended party wala. Of course, why cannot plead double jeopardy.
would the offended party be there, eh,
na-cancel na. Since the accused was And the last part:
present for trial, but the prosecution
was not ready because wala ang C.) ASSUMING THAT ALL THE
testigo niya, the court dismissed the
case for failure of the complainant to
REQUISITES OF DOUBLE
appear and to testify. [Well, the court JEOPARDY, ARE PRESENT, THE
and the prosecution should have ACCUSED IS PROTECTED AGAINST
remembered that the hearing is FROM WHAT OFFENSE?
already cancelled.] So, when the
complainant learned about it, Assuming the accused has already been
nagreklamo, “I was not supposed to convicted, acquitted or the case is dismissed
be there anymore, na-cancel naman.” without his express consent, and all the requisites
They looked at it, nagkamali talaga; of double jeopardy are present, the accused
everybody realized this error. cannot be convicted for:
1. for the same offense; or
ISSUE: Is there double jeopardy if 2. for an attempt to commit the same
the action will be filed again? offense. [If you are convicted or
acquitted for a consummated offense,
HELD: NONE. “The erroneous you cannot be charged or convicted or
dismissal order was issued acquitted for the lesser stage;] or
capriciously and arbitrarily; it 3. for frustration or attempt thereof; [The
unquestionably deprived the State of a acquittal, conviction or dismissal of
fair opportunity to present and prove the consummated crimes carries
its case. Thus, its right to due process automatically the frustrated or
was violated. The said order is null attempted stage of the same crime.] or
and void and hence, cannot be 4. for any other offense which
pleaded to bar a re-opening of the case necessarily includes or is necessarily
on the ground of double jeopardy. included in the offense charged in the
Consequently, the first jeopardy was former complaint.
not terminated and no second
jeopardy threatened the accused.”
“The Judge, Clerk of Court and the
prosecution should shoulder the BEING PROSECUTED FOR THE SAME
blame because unless amnesia OFFENSE
suddenly struck all of them
simultaneously, it cannot be imagined What is troublesome here is being prosecuted
that in a brief span of about twenty- for the same offense. This has been the subject of so
four (24) hours, they had all forgotten many decided cases, whether it is the same
about the order dictated in open court offense or not.
cancelling the hearing for September
27 and 28, 1990. [The order of Q: While in a public place, Maya fired a
cancellation was given the day before, machine gun, thereby causing panic and physical
and the following day nobody injuries to certain persons. She was charged with
remembered about it.] For the serious physical injuries through reckless
prosecutor who orally moved for such imprudence for firing the gun in public.
cancellation and the Judge himself Subsequently, she was charged with serious
who dictated the said order, no
public disturbance in a public place. Is there Prosecuted for multiple homicide through
double jeopardy? reckless imprudence; he was convicted.
A. NONE. While there was only a single act, Subsequently, he was prosecuted for driving
two distinct offenses resulted therefrom namely: without a license under the Land Transportation
(1) physical injuries which is a crime against Law. Is there DOUBLE JEOPARDY?
persons, and (2) public disturbance which is a A: NONE. The two offenses are distinct: one
crime against public peace and order. (People vs. is punished by the Penal Code and the other by
Bacolod, 89 Phil. 621) special law. (People vs. Guanco, 83 Phil. 639)
Q: Accused was caught fishing with Q: The accused married twice and lived with
explosives. He was first prosecuted for illegal the second woman as husband and wife for quite
fishing and subsequently, for illegal possession of some time. Prosecuted for bigamy, he was
explosives. Is there DOUBLE JEOPARDY? convicted. Subsequently, he was prosecuted for
A: NONE. These are two (2) distinct offenses, concubinage. Is there DOUBLE JEOPARDY?
the same being punished by two different laws. A: NONE. The two offenses are distinct. In
There is a law for illegal fishing and another for bigamy, marriage is an essential element. You
illegal possession of explosives. (People vs. can only commit bigamy if you are married and
Tinamisan, L- 4081, January 29, 1952) you marry another. But in concubinage, marriage
is not an essential element – mere living together
Q: A complaint for adultery was filed against as husband and wife is sufficient. (People vs.
Miriam and Cholo covering the period from the Schneckenburger, 72 Phil. 413) If you are a
year 1946 to March 14, 1947. Pleading guilty, the married man and you live as husband and wife
two were accordingly sentenced. On September with another woman, that is concubinage even if
17, 1948, a second complaint for adultery was you will not marry her.
filed against Miriam and Cholo covering the
period of March 15, 1947 to the date of the filing
of the second complaint. The two moved to quash PEREZ vs. COURT OF APPEALS
the second complaint on the ground of double 168 SCRA 236
jeopardy. Is there double jeopardy?
A: NONE. Adultery is a crime of result and FACTS: Accused was charged
not of tendency; it is an instantaneous crime with consented abduction. He was
which is consummated at the moment of the acquitted. The court said that it was
carnal union. Each sexual intercourse constitutes qualified seduction pala, and not
a crime of adultery, so that there may be as many consented abduction. So, another
complaints for adultery as there are adulterous complaint for seduction was filed
acts committed. It is only one relationship but against the accused. The accused
every carnal act is one crime. (People vs. Zapata, pleaded double jeopardy. Is there
88 Phil. 688) double jeopardy?
Q: An accused stole a revolver, tinago niya. It HELD: NONE. Although they may
turned out to be unlicensed. He was first have arisen from the same set of facts,
prosecuted for theft of firearm and he was [and they are both crimes against
convicted. He was subsequently prosecuted for chastity] they are not identical offenses
illegal possession of firearm. Is there double as would make applicable the rule on
jeopardy? double jeopardy.
A: NONE. The offenses are different. Theft is There are similar elements
consummated upon the taking, while illegal between Consented Abduction and
possession involves not only the taking but also Qualified Seduction, namely: (1) that
the possession and intent to use the firearm. the offended party is a virgin, and, (2)
(People vs. Remerata, 98 Phil. 413) that she must be over twelve (12) and
under eighteen (18) years of age.
Q: The accused, without a license, drove his However, two elements differentiate
jeep recklessly such that it turned turtle resulting the two crimes. Consented Abduction,
into the death of four of its passengers. in addition to the two common
elements, requires that: (1) the taking Q: Give examples of the rule mentioned
away of the offended party must be above.
with her consent, after solicitation or A: The following:
cajolery from the offender, and, (2) the
taking away of the offended party 1. Mr. Cadungog stole two (2) fighting
must be with lewd designs. On the cocks in the same place. He was
other hand, an information for prosecuted for stealing one cock. He
Qualified Seduction also requires that: cannot be prosecuted anymore for
(1) the crime be committed by abuse of stealing the other cock. Although there
authority, confidence or relationship, are two acts of taking but there is only
and, (2) the offender has sexual one criminal intent – that is where
intercourse with the woman [which is double jeopardy will arise. (People vs.
not required in abduction]. De Leon);
2. A person was charged with illegal

NIERRA vs. DACUYCUY importation of blasting caps – a
181 SCRA 1 device for preparing explosives –
cannot be subsequently prosecuted for
FACTS: A check bounced. Two illegal possession of the same, for
cases were filed: (1) Estafa, under there can hardly be importation
Article 315, RPC, and (2) BP 22. Is without possession. (People vs.
there DOUBLE JEOPARDY? Elkanish, 90 Phil. 53);
HELD: NONE. The two crimes are 3. A person charged with reckless
distinct. While, in filing of the two driving under the LTO Law cannot be
sets of information may refer to subsequently charged with damage to
identical acts, the prosecution cannot property through reckless imprudence
be limited to one offense because a because reckless driving is the
single criminal act may give rise to a essential element of both offenses.
multiplicity of offenses with different (People vs. Diaz, 94 Phil. 714; People
elements. Prosecution for the same act is vs. Belga, 100 Phil. 996);
not prohibited. What is forbidden is
prosecution for the same offense. 4. A person convicted of illegal
However under the Constitution, possession of opium cannot be
if the same act is punished by a subsequently prosecuted for illegal
national law and an ordinance, iba na possession of opium pipe found
yan! Conviction or acquittal in either together with the opium. (U.S. vs. Pho
one will constitute double jeopardy – Chi, 20 Phil. 104);
that is the exception. But, if you are
violating two national laws, e.g. BP 22 5. Possession of two or more unlicensed
and Estafa, then there is no double firearms in one place constitutes but
jeopardy. one offense so that conviction for
illegal possession of one firearm is a
Those are examples of NO double jeopardy. bar to a subsequent prosecution for
possession of the other or others. (U.S.
HOWEVER, there are cases where the crimes vs. Gustilo, 19 Phil. 208)
are not identical but double jeopardy can be
applied. The best example is delito continuado
because the SC said the protection against double
jeopardy may be extended to a case of a single MALLARI vs. PEOPLE
criminal act impelled by a single criminal intent, 168 SCRA 422
resulting into two or more juridically identical
offenses. FACTS: The accused wanted to
mortgage two (2) lots to the victims,
let us say for P3,000, at P1,500 each. crimes are punishable by two different
Sabi ng victim, “Kulang man ang statutes. Technically, they are not the
kwarta ko. I will only lend you P1,500, same offense and yet one absorbs the
good for one lot lang. You ask my other because when you are in
mother-in-law baka may pera siya.” conspiracy with the rebels, necessarily
Meron man din. So hinati – the other you harbor each other. You cannot be
lot was mortgaged to the mother-in- expected to be a traitor to each other.
law of the victim for P1,500. It turned So, how can you separate one crime
out that all those deed of mortgage from the others?
were falsified. Two cases were filed
against the accused because there
were two victims. Alright. And both of them were among the
senators – Honasan and Enrile. Now, we will go
ISSUE: Is there double jeopardy? to the third senator – Miriam Santiago.
HELD: YES. There is only one SANTIAGO vs.

crime committed. There is only one GARCHITORENA
intent to defraud. It is just accidental 228 SCRA 214
that the intended victim only got one-
half. There is a similar crime FACTS: Miriam Santiago was
consisting of a series of acts, but all charged criminally with violation of
arising from one criminal resolution. Anti-Graft and Corrupt Practices Act
allegedly committed by her by
favoring unqualified aliens when she
ENRILE vs. AMIN was still the Immigration
September 13, 1990 Commissioner. Later, the prosecution
sought to change the charge by filing
FACTS: Enrile was charged for thirty-two (32) amended information
rebellion during the coup d’ etat since 32 aliens were benefited. So, 32
during the time of President Aquino cases were filed.
for conspiring with Honasan. During
the highlight of the coup attempt, HELD: The prosecution is directed
nandun si Honasan sa birthday party to consolidate the 32 informations into
ni Enrile. While the case for rebellion 1 information charging only 1 offense.
was pending, another case was file “The concept of delito continuado,
against him under PD No. 1829 for although an outcrop of the Spanish
harboring or concealing fugitives. The Penal Code, has been applied to
prosecution contended that harboring, crimes penalized under special laws
concealing a fugitive is punishable citing Article 10 of the RPC. The 32
under a special law, while rebellion is Amended Informations aver that the
punishable under the Penal Code. offenses were committed on the same
period of time, i.e., on or about
HELD: The prosecution is wrong. October 17, 1988. The strong
In the light of the absorption doctrine, probability even exists that the
the prosecution must fail. All crimes approval of the application for the
which are mere components of legalization of the stay of the 32 aliens
rebellion or are committed in was done by a single stroke of the pen,
furtherance thereof are absorbed in as when the approval was embodied
rebellion. “The theory of absorption in in the same document.”
rebellion cases must not confine itself
to common crimes but also to offenses
under special laws which are FOR ANY OTHER OFFENSE WHICH
perpetrated in furtherance of the NECESSARILY INCLUDES OR IS NECESSARILY
political offense.” And yet, the two
INCLUDED IN THE OFFENSE CHARGED IN A: There are three (3) exceptions, under
THE FORMER COMPLAINT Section 7:
Thus, a charge of Murder, double jeopardy 1. the graver offense developed

for Homicide; a charge for Homicide, double due to supervening facts
jeopardy for murder. Either one eh, baliktaran! arising from the same act or
Basta one offense is included in the other. omission constituting the
Robbery includes theft; serious physical injuries former charge; (Section 7 [a])
includes less serious physical injuries and slight 2. the facts constituting the
physical injuries. (People vs. Martinez, 55 Phil. 6; graver charge became known
People vs. Belga, 100 Phil. 996) Sama-sama lahat or were discovered only after a
‘yan. That is covered by the protection against plea was entered in the former
double jeopardy. complaint or information;
(Section 7 [b]) or
Kaya nga in the plea-bargaining, when the 3. the plea of guilty to the lesser
accused pleads guilty to a lesser offense included offense was made without the
in the crime charged with consent of the consent of the prosecutor and
prosecution and the offended party, there is of the offended party except as
double jeopardy already. You cannot be charged provided in section 1(f) of Rule
anymore for a lighter offense. That is covered by 116. (Section 7[c])
double jeopardy rule.
PEOPLE vs. RELOVA, supra THE GRAVER OFFENSE DEVELOPED DUE

TO SUPERVENING FACTS ARISING FROM THE
HELD: “The law here seeks to SAME ACT OR OMISSION CONSTITUTING THE
prevent harassment of an accused FORMER CHARGE
person by multiple prosecutions for
offenses which though different from This is also known as the supervening fact
one another are nonetheless each doctrine, also known as the Melo Doctrine
constituted by a common set or because this rule was laid down in the case of
overlapping sets of technical elements. Melo vs. People, 45 Phil. 766.
Otherwise, an unlawful act or
omission may give use to several EXAMPLE: Mortz stabbed Kim. Kim was
prosecutions depending upon the confined in the hospital. Mortz was charged with
ability of the prosecuting officer to frustrated homicide. He pleaded guilty. After 2
imagine or concoct as many offenses days, Kim died. So the fiscal amended the
as can be justified by said act or information to consumated homicide. Mortz
omission by simply adding or pleaded guilty double jeopardy. Under the Melo
subtracting essential elements. Under doctrine, there is no double jeopardy because of
the theory of appellant the crime of the supervening fact of death of the victim arising
rape may be converted into a crime of from the same act or omission constituting the
coercion, by merely alleging that by former charge – the graver offense developed due
force and intimidation the accused to the supervening fact.
prevented the offended girl from
remaining a virgin.” The reasoning in Melo is that, when the
accused was charged with frustrated homicide,
the crime of consummated homicide was not yet
in existence because the victim is still alive. So the
crime of consummated homicide started to come
EXCEPTIONS TO THE DOUBLE JEOPARDY RULE out after the arraignment. Therefore, the
information can be changed to consummated
Q: What are the exceptions to the double homicide.
jeopardy rule?
THE FACTS CONSTITUTING THE GRAVER What is worse is the case of PEOPLE VS. CITY
CHARGE BECAME KNOWN OR WERE COURT OF MANILA, where the victim was
DISCOVERED ONLY AFTER A PLEA WAS charged with physical injuries through reckless
ENTERED IN THE FORMER COMPLAINT OR imprudence and then arraigned kaagad ang
INFORMATION accused. Yon pala, patay na ang victim. The fiscal
move to postpone the arraignment to verify the
Now, the Melo doctrine had one flaw which status of the victim. HELD: Ah walang
the SC observed in other cases. For example we postponement! Tuloy!
will change the facts:
Mortz shot Kim. Kim was confined So it was really unfair. It is not covered by the
in the hospital. Mortz was charged Melo Doctrine. You cannot say tha the greater
with frustrated homicide. Let’s say injury came after. It was already there all along.
Mortz will be arraigned tomorrow, but Only it was discovered after the plea.
tonight Kim died. The following
morning, nobody knew about it. So NGAYON, para wala ng gulo meron ng
the arraignment continued and Mortz paragraph [b]:
pleaded guilty to frustrated homicide.
After Mortz was sentenced to “the facts constituting the
graver charge became known or
frustrated homicide, that is the time
were discovered only after a
the prosecutor learned that Kim died. plea was entered in the former
He now wants to change to complaint or information;”
consummated homicide.
So even if the graver offense was already
Can he change the information? The SC said, existing before the arraignment but it became
no more. The Melo doctrine does not apply there known only after the plea, there is no more
because you cannot say that the death of the double jeopardy. This amendment created
victim supervenes after the arraignment – even another exception not covered by the Melo
before the arraignment, the victim was already doctrine.
dead. The crime of consummated homicide was
already in existence. Mortz could have been
charged already when he was arraigned. “Pero THE PLEA OF GUILTY TO THE LESSER
hindi man namin alam?” Ah pasensya, that is OFFENSE WAS MADE WITHOUT
your risk. So that is where the Melo doctrine THE CONSENT OF THE PROSECUTOR AND OF
cannot apply. THE OFFENDED
PARTY EXCEPT AS PROVIDED IN SECTION
This creates unfairness eh. There were cases 1(F) OF RULE 116.
where that really happens. Like in one case
where the accused was charged with physical You know this – plea-bargaining, plea of
injuries in the arm of the victim. Less serious guilty to a lesser offense – it must be wit the
physical injuries, because the doctor said it consent of the prosecutor and the offended party.
would heal in two weeks. He was charged, And remember, once there is a plea-bargaining,
pleaded guilty, sentenced to less serious physical you cannot be charged anymore for the graver
injuries – arresto mayor. Then after one month, offense except as provided in Section 1 [f], Rule
wala pa man naayo, the injury was still there. 116 – when during the plea-bargaining the
The victim went to the doctor. Ini-x-ray, bali pala offended party will not show up, in which case,
ang buto! Meaning, the crime all along was the consent of the prosecutor alone is required.
serious. The trouble is, the fracture was not This is a provision which compels the offended
detected by the doctor. So they sought to change party to appear in the plea-bargaining.
the charge to serous physical injuries. The SC Otherwise, the accused may offer to plea guilty to
said, NO, the fracture did not supervene after the a lesser offense and the prosecutor will say, “OK”
arraignment. It was there all along. Only, it was – you are bound because you did not appear.
discovered after. You cannot change the
information because double jeopardy applies. Q: But suppose Mortz has already started
serving his sentence for frustrated homicide?
A: There is no problem because under the last accused to assert any ground of
a motion to quash before he
paragraph of Section 7, “In any of the foregoing pleads to the complaint or
cases, where the accused satisfies or serves in information, either because he
whole or in part the judgment, he shall be did not file a motion to quash
or failed to allege the same in
credited with the same in the event of conviction said motion, shall be deemed a
for the graver offense.” waiver of any objections except
those based on the grounds
provided for in paragraphs (a),
(b), (g), and (i) of section 3
SEC. 8. Provisional of this Rule. (8a)
dismissal. – A case shall not
be provisionally dismissed
except with the express consent Q: What is the effect if the person does not file
of the accused and with notice any motion to quash?
to the offended party.
The provisional dismissal of A: He is WAIVING the grounds for the
offenses punishable by motion to quash, EXCEPT:
imprisonment not exceeding six 1. lack of jurisdiction over the subject
(6) years or a fine of any
amount, or both, shall become matter; (Section 3 [a])
permanent one (1) year after 2. the information does not charge any
issuance of the order without offense; (Section 3 [b])
the case having been revived.
With respect to offenses 3. the criminal liability has already been
punishable by imprisonment of extinguished; (Section 3 [g])
more than six (6) years, their 4. double jeopardy. (Section 3 [i])
provisional dismissal shall
become permanent two (2) years
after issuance of the order Meaning, even if you did not raised it in the
without the case having been beginning, you can still raised it during the trial.
revived. (n)
The rule is similar to civil procedure – defenses
and objections not raised in a motion to dismiss
Section 8 is an entirely new provision.
are deemed waived, except 1.) lack of jurisdiction
over the subject matter; 2.) res adjudicata; 3.) litis
The concept of provisional dismissal means
pendentia; 4.) statute of limitations.
there is no double jeopardy – the case is
temporarily dismissed. So obviously the element
of double jeopardy are not around. So, there is a
way for the case to be revived in the future. The
1985 rules has no direct provision governing
provisional dismissal. The guidelines are not
clear. You can re-file because there is no double
jeopardy. The problem is, can that be case be re-
filed 5 years after?
Q: Under the new rules there is now a

deadline. The case is provisionally dismissed, up
to when?
A: MTC cases – within one (1) year to revive.
RTC cases – within two (2) years to revive.
After 1 or 2 years, as the case maybe, the

provisional dismissal becomes permanent. So
meron ng deadline so that the prosecutor or the
offended party will not buy his time, “ah
provisional! Puwede yan anytime!” Before kasi
noon, ganun eh. So there must be a deadline.
SEC. 9. Failure to move to

quash or to allege any ground
therefore. – The failure of the
RULE 118 appear, but only the counsel for the accused
or the prosecutor.
PRE-TRIAL The sanctions or penalty may be in the form
of reprimand, fine or imprisonment.
Section 1. Pre-trial; mandatory in Inasmuch as this is similar to indirect
criminal cases. contempt of court, the penalty for indirect
contempt may be imposed.
Pre-trial is MANDATORY in all criminal
cases. Section 4. Pre-trial order.
After the pre-trial, the court issues an order
MATTERS CONSIDERED IN PRE-TRIAL reciting actions taken, facts stipulated and
CONFERENCE: evidence marked, and thereafter the trial on
a. plea bargaining; the merits will proceed on matters not
a. stipulation of facts; disposed of during the pre-trial.
b. marking for identification of evidence of
the parties;
Rule 119
c. waiver of objections to admissibility of
evidence; TRIAL
d. modification of the order of trial if the
accused admits the charge but interposes
a lawful defense; and SECTION 1. Time to prepare
e. such matters as will promote a fair and for trial. – After a plea of
not guilty is entered, the
expeditious trial of the criminal and civil accused shall have at least
aspects of the case. (Secs. 2 & 3, Circ. fifteen (15) days to prepare
38-98) for trial. The trial shall
commence within thirty (30)
days from receipt of the pre-
Plea bargaining – the process whereby the trial order. (sec. 6, cir. 38-
accused, the offended party and the 98)
prosecution work out a mutually satisfactory SEC. 2. Continuous trial
disposition of the case subject to court until terminated;
approval. It usually involves the defendant’s postponements. – Trial once
commenced shall continue from
pleading guilty to a lesser offense or to only day to day as far as
one or some of the counts of a multi-count practicable until terminated.
indictment in return for a lighter sentence It may be postponed for a
reasonable period of time for
than that for the graver charge. good cause. (2a)
The court shall, after
The court shall after arraignment and within consultation with the
prosecutor and defense counsel,
30 days from the time the court acquires set the case for continuous
jurisdiction over the person of the accused, trail on a weekly or other
short-term trial calendar at
unless a shorter period is provided for by the earliest possible time so
special laws or circular of the Supreme as to ensure speedy trial. In
Court, order a pre-trial. no case shall the entire trial
period exceed one hundred
eighty (180) days from the
Section 2. Pre-trial agreement. first day of trial, except as
otherwise authorized by the
Supreme Court. (sec. 8, cir.
Requisites before the pre-trial agreement 38-98).
can be used as evidence: The time limitations
1. they are reduced to writing provided under this section and
the preceding section shall not
2. the pre-trial agreement is signed by the apply where special laws or
accused and his counsel circulars of the Supreme Court
provide for a shorter period of
trial. (n)
Section 3. Non-appearance at pre-trial
conference.
The accused is not the one compelled to After the accused is arraigned, there is a
minimum of 15 days to prepared for the trial. cannot be determined by due

diligence. He shall be
And then continuous trial until terminated. The considered unavailable whenever
trial period shall not exceed 180 days, taken from his whereabouts are known but
the Speedy Trial Act and SC Circulars. They are his presence for trial cannot
be obtained by due diligence.
now incorporated in the new rules. (c) Any period of delay
resulting from the mental
There are many provisions here which are incompetence or physical
inability of the accused to
new in the sense that they are found in the rules stand trial.
for the first time. However, even before the new (d) If the information is
rules took effect, they were considered as already dismissed upon motion of the
prosecution and thereafter a
existing provisions because of the Speedy Trial charge is filed against the
Act and SC Circular 38-98. Ngayon, nandito na. accused for the same offense,
So we will not go over them one by one. I will just any period of delay from the
date the charge was dismissed
point them out. to the date the time limitation
would commence to run as to the
The new provisions are Section 3 up to subsequent charge had there
been no previous charge.
Section 10: (e) A reasonable period of
delay when the accused is
SEC. 3. Exclusions.- The joined for trial with a co-
following periods of delay accused over whom the court has
shall be excluded in computing not acquired jurisdiction, or,
the time within which trial as to whom the time for trial
must commence: has not run and no motion for
(a) Any period of delay separate trial has been
resulting from other granted.
proceedings concerning the (f) Any period of delay
accused, including but not resulting from a continuance
limited to the following: granted by any court motu
(1) Delay resulting from an proprio, or on motion of either
examination of the physical and the accused or his counsel, or
mental condition of the the prosecution, if the court
accused; granted the continuance on the
(2) Delay resulting from basis of its findings set forth
proceedings with respect to in the order that the ends of
other criminal charges against justice served by taking such
the accused; action outweigh the best
(3) Delay resulting from interestof the public and the
extraordinary remedies against accused in a speedy trial.
interlocutory orders; (sec. 9, cir. 38-98)
(4) Delay resulting from
pre-trial proceedings; SEC. 4. Factors for granting
provided, that the delay does continuance. – The following
not exceed thirty (30) days; factors, among others, shall be
(5) Delay resulting from considered by a court in
orders of inhibition, or determining whether to grant a
proceedings relating to change continuance under section 3(f)
of venue of cases or transfer of this Rule.
from other courts; (a) Whether or not the
(6) Delay resulting from a failure to grant a continuance
finding of existence of a in the proceeding would likely
prejudicial question; and make a continuation of such
(7) Delay reasonably proceeding impossible or result
attributable to any period, not in a miscarriage of justice;
to exceed thirty (30) days, and
during which any proceeding (b) Whether or not the case
concerning the accused is taken as a whole is so novel,
actually under advisement. unusual and complex, due to the
(b) Any period of delay number of accused or the nature
resulting from the absence or of the prosecution, or that it
unavailability of an essential is unreasonable to expect
witness. adequate preparation within the
For purposes of this periods of time established
subparagraph, an essential therein.
witness shall be considered In addition, no continuance
absent when his whereabouts are under section 3(f) of this Rule
unknown or his whereabouts shall be granted because of
congestion of the court’s the prisoner of the charge and

calendar or lack of diligent of his right to demand trial.
preparation or failure to If at anytime thereafter the
obtain available witnesses on prisoner informs his custodian
the part of the prosecutor. that he demands such trial, the
(sec. 10, cir. 38-98) latter shall cause notice to
that effect to be sent promptly
SEC. 5. Time limit following to the public attorney.
an order for new trial. – If (c) Upon receipt of such
the accused is to be tried notice, the public attorney
again pursuant to an order for shall promptly seek to obtain
a new trial, the trial shall the presence of the prisoner
commence within thirty (30) for trial.
days from notice of the order, (d) When the custodian of
provided that if the period the prisoner receives from the
becomes impractical due to public attorney a properly
unavailability of witnesses and supported request for the
other factors, the court may availability of the prisoner
extend but not to exceed one for purpose of trial, the
hundred eighty (180) days. For prisoner shall be made
the second twelve-month period, available accordingly. (sec.
the time limit shall be one 12, cir. 38-98)
hundred eighty (180) days from
notice of said order for new SEC. 8. Sanctions. – In any
trial. (sec 11, cir. 38-98) case in which private counsel
for the accused, the public
SEC. 6. Extended time attorney, or the prosecutor:
limit.- Notwithstanding the (a) Knowingly allows the
provisions of section 1(g), case to be set for trial
Rule 116 and the preceding without disclosing that a
section 1, for the first necessary witness would be
twelve-calendar-month period unavailable for trial;
following its effectivity on (b) Files a motion solely
September 15, 1998, the time for delay which he knows is
limit with respect to the totally frivolous and without
period from arraignment to merit;
trial imposed by said provision (c) Makes a statement for
shall be one hundred eighty the purpose of obtaining
(180) days. For the second continuance which he knows to
twelve-month period, the time be false and which is material
limit shall be one hundred to the granting of a
twenty (120) days, and for the continuance; or
third twelve-month period, the (d) Willfully fails to
time limit shall be eighty (80) proceed to trial without
days. (sec. 7, cir. 38-98) justification consistent with
the provisions hereof, the
SEC. 7. Public attorney’s court may punish such counsel,
duties where accused is attorney, or prosecutor, as
imprisoned. – If the public follows:
attorney assigned to defend a (1) By imposing on a counsel
person charged with a crime privately retained in
knows that he latter is connection with the defense o
preventively detained, either fan accused, a fine not
because he is charged with a exceeding twenty thousand pesos
bailable crime but has no means (P20,000.00);
to post bail, or, is charged (2) By imposing on any
with a non-bailable crime, or, appointed counsel de oficio,
is serving a term of public attorney, or prosecutor
imprisonment in any penal a fine not exceeding five
institution, it shall be his thousand pesos (P5,000.00); and
duty to do the following: (3) By denying any defense
(a) Shall promptly undertake counsel or prosecutor the right
to obtain the presence of the to practice before the court
prisoner for trial or cause a trying the case for a period
notice to be served on the not exceeding thirty (30) days.
person having custody of the The punishment provided for by
prisoner requiring such person this section shall be without
to so advise the prisoner of prejudice to any appropriate
his right and demand trial. criminal action or other
(b) Upon receipt of that sanction authorized under these
notice, the custodian of the rules. (sec. 13, cir. 38-98)
prisoner shall promptly advise
There is something here in Section 8 that I (b) The accused may present
evidence to prove his defense
want to bring out – mga kastigo, sanctions ba! and damages, if any, arising,
Alam mo ang kawawa dito, mga abogado eh – from the issuance of a
fiscals, defense counsels, even the PAO lawyers – provisional remedy in the case.
(c) The prosecution and the
if they are responsible for delaying the trial of the defense may, in that order,
criminal case. present rebuttal and sur-
rebuttal evidence unless the
court, in furtherance of
Just imagine, P20,000 if it is the private justice, permits them to
defense lawyer. That is the maximum of course. present additional evidence
Ang PAO naman, P5,000 – 75% discount! Ma- bearing upon the main issue.
(d) Upon admission of
suspend ka pa. evidence of the parties, the
case shall be deemed submitted
SEC. 9. Remedy where accused for decision unless the court
is not brought to trial within directs them to argue orally or
the time limit. – If the to submit written memoranda.
accused is not brought to trial (e) When the accused admits
within the time limit required the act or omission charged in
by Section 1(g), Rule 116 and the complaint or information
Section 1, as extended by but interposes a lawful
Section 6 of this rule, the defense, the order of trial may
information may be dismissed on be modified. (3a)
motion of the accused on the
ground of denial of his right
to speedy trial. The accused
The order of the trial in the criminal case is
shall have the burden of almost the same pattern as in civil cases.
proving the motion but the
prosecution shall have the
burden of going forward with Q: Who presents evidence first?
the evidence to establish the A: The prosecution. Under Section 11 [a],
exclusion of time under section “The prosecution shall present evidence to prove
3 of this rule. The dismissal
shall be subject to the rules the charge and, in the proper case, the civil
on double jeopardy. liability.” So you prove the charge and the civil
Failure of the accused to liability.
move for dismissal prior to
trial shall constitute a waiver
of the right to dismiss under Q: Ano yung “in the proper case”?
this section. (sec. 14, cir. A: That is because if the civil liability has
38-98)
already been reserved, ah wala na – forget
SEC. 10. Law on speedy trial evidence of civil liability where there is already
not a bar to provision on reservation. Pero kung hindi, then it is deemed
speedy trial in the
Constitution. – No provision of instituted with the criminal case.
law on speedy trial and no rule
implementing the same shall be Under paragraph [b], provisional remedies
interpreted as a bar to any
charge of denial of the right are allowed in criminal cases, like attachments,
to speedy trial guaranteed by etc. in the same way if the civil action is deem
section 14(2), article III, of instituted, the offended party can ask a
the 1987 Constitution. (sec.
15, cir. 38-98) preliminary attachment of the property under
Rule 127.
Take note of Section 9 and 10. Please correlate
this on the rights of the accused to speedy trial as Paragraph [e] refers to “trial in reverse.” The
mention in Section 1[h] of Rule 115 on the rights best example is when the accused raises self-
of the accused. defense. The burden of proof is automatically
shifted to the accused. But this should be
SEC. 11. Order of trial. – included during the pre-trial as provided under
The trial shall proceed in the Rule 118, Section 1 [e]:
following order:
(a) The prosecution shall
present evidence to prove the SECTION 1. Pre-trial;
charge and, in the proper case, mandatory in criminal cases. –
the civil liability. In all criminal cases
cognizable by the
Sandiganbayan, Regional Trial least three (3) days before the

Court, Metropolitan Trial scheduled examination. The
Court, Municipal Trial Court in examination shall be taken
Cities, Municipal Trial Court before a judge, or, if not
and Municipal Circuit Trial practicable, a member of the
Court, the court shall, after Bar in good standing so
arraignment and within thirty designated by the judge in the
(30) days from the date the order, or if the order be made
court acquires jurisdiction by a court of superior
over the person of the accused, jurisdiction, before an
unless a shorter period is inferior court to be designated
provided for in special laws or therein. The examination shall
circulars of the Supreme Court, proceed notwithstanding the
order a pre-trial conference to absence of the prosecutor
consider the following: provided he was duly notified
x x x x x x x of the hearing. A written
(e) modification of the record of the testimony shall
order of trial if the accused be taken. (5a)
admits the charge but
interposes a lawful defense;
x x x x x x x The grounds are almost identical. This is
deposition actually. Only, it is called conditional
Q: Is there such a thing as deposition-taking examination. That is the term used here.
in criminal cases?
A: YES, under Section 12: Take note, connect this with Section 1[f], Rule
115 – rights of the accused. Section 12 is an
SEC. 12. Application for exception to the right to confront and cross-
examination of witness for examine because you cannot insist during the
accused before trial. – When
the accused has been held to trial to confront and cross-examine the witness
answer for an offense, he may, under Rule 115 Section 1[f] when we was already
upon motion with notice to the examined under Section 12.
other parties, have witnesses
conditionally examined in his
behalf. The motion shall state: Q: Is the remedy of deposition-taking also
(a) the name and residence of available to the prosecution?
the witness; (b) the substance
of his testimony; and (c) that A: YES, under Section 15:
the witness is sick or infirm
as to afford reasonable ground SEC. 15. Examination of
for believing that the will not witness for the prosecution. –
be able to attend the trial, or When it is satisfactorily
resides more than one hundred appears that a witness for the
(100) kilometers from the place prosecution is too sick or
of trial and has no means to infirm to appear at the trial
attend the same, or that other as directed by the court, of
similar circumstances exist has to leave the Philippines
that would make him unavailable with no definite date of
or prevent him from attending returning, he may forthwith be
the trial. The motion shall be conditionally examined before
supported by an affidavit of the court where the case is
the accused and such other pending. Such examination, in
evidence as the court may the presence of the accused, or
require. (4a) in his absence after reasonable
notice to attend the
examination has been served on
Q: How is deposition in criminal cases being him, shall be conducted in the
done? same manner as an examination
A: Read Section 13: at the trial. Failure or
refusal of the accused to
attend the examination at the
SEC. 13. Examination of trial. Failure or refusal of
defense witness; how made. – If the accused to attend the
the court is satisfied that the examination after notice shall
examination of a witness for be considered a waiver. The
the accused is necessary, an statement taken may be admitted
order shall be made directing in behalf of or against the
that the witness be examined at accused. (7a)
a specific date, time and place
and that a copy of the order be
served on the prosecutor at Let us try to compare Section 13 (defense) and
Section 15 (prosecution): Let’s go to the defense SEC. 16. Trial of several

accused. – When two or more
witness under Section 13: accused are jointly charged
with an offense, they shall be
Q: Before whom will the examination of the tried jointly unless the court,
in its discretion and upon
witness be taken? motion of the prosecutor or any
A: It DEPENDS – before the judge, or if not accused, orders separate trial
practicable, a member of the bar in good standing for one or more accused. (8a)
designated by the judge in the order.
Remember that there can be a joint trial of two
Now, you compare that with Section 15. In or more criminal cases if they arose of the same
Section 15, you will notice: “he may forthwith be incident like Judee fired her AK-47 and killed two
conditionally examined before the court where the case or more people one after the other. But you
is pending.” Unlike in Section 13 – before the cannot file one information because that will be
judge, or if not practicable, a member of the bar in duplicitous. There must be one information for
good standing… it is more lenient no? every one homicide and then you move for a joint
trial.
Q: What is the reason why the law is more
generous to the defense witness? Q: Now, how do you compare this rule with
A: According to one case through Justice Feria, civil cases?
this is because the government has the resources A: In civil cases, when there is a common
to get he testimony of its witnesses. Pero ang question of fact or law involving two or more
defense may have a hard time lalo na kapag parties, there is such a thing as filing only one
pobre. complaint – joinder of causes of action or parties.
But in criminal cases, that is not allowed.
SEC. 14. Bail to secure Consolidation in criminal cases in only for the
appearance of material witness. purpose of joint trial lang and you cannot have
– When the court is satisfied,
upon proof of oath, that a one information charging more than one offense.
material witness will not
testify when required, it may, DISCHARGE OF AN ACCUSED TO BE
upon motion of either party,
order the witness to post bail STATE WITNESS
in such sum as may be deemed
proper. Upon refusal to post SEC. 17. Discharge of
bail, the court shall commit accused to be state witness. –
him to prison until he complies When two or more persons are
or is legally discharged after jointly charged with the
his testimony has been taken. commission of any offense, upon
(6a) motion of the prosecution
before resting its case, the
It seems that the prosecution here is under the court may direct one or more of
the accused to be discharged
mercy of his witnesses. Meaning, kung ayaw ng with their consent so that they
testigo, wala kang magawa. But under Section may be witnesses for the state
14, you can ask the court to order the witness to when, after requiring the
prosecution to present evidence
post bail. And if he refuses to post bail, he can be and the sworn statement of each
arrested. This is an instance where a witness can proposed state witness at a
be jailed ahead of the accused. hearing in support of the
discharge, the court is
satisfied that:
But actually the truth is in most cases, (a) There is absolute
prosecution witnesses do not appear not because necessity for the testimony of
the accused whose discharge is
ayaw but because takot! They are afraid of what requested;
will happen like the accused might harass them. (b) There is no other direct
And the law knows that. That is why there is also evidence available for the
proper prosecution of the
another alternative – RA 6981, The Witness offense committed, except the
Protection Program which took effect last April of testimony of said accused;
1991. You read that so you will have an idea. (c) The testimony of said
accused can be substantially
corroborated in its material
points;
(d) Said accused does not MOST GUILTY. And it is not the same with HE
appear to be the most guilty;
and IS THE LEAST GUILTY.
(e) Said accused has not at
any time been convicted of any EXAMPLE: Mortz, Pao and Jet. Mortz –
offense involving moral
turpitude. principal; Pao – accomplice; Jet – accessory. Pag-
Evidence adduced in support sinabi mong “the least guilty,” hindi mo
of the discharge shall puwedeng gamitin si Pao. Si Jet dapat ang
automatically form part of the
trial. If the court denies the gamitin mo because he is the least guilty. [Tsk! tsk!
motion for discharge of the Ginamit si Jet. Ginamit!] PERO, pag-sinabi mong “he does
accused as state witness, his not appear to be the most guilty”, you can use Pao,
sworn statement shall be
inadmissible in evidence. (9a) although there is somebody to be less guilty.
Basta ang importante, hindi si Mortz. So, there is
SEC. 18. Discharge of a difference between the two phrases.
accused operates as acquittal.
– The order indicated in the
preceding section shall amount Q: What do you mean by the phrase “does not
to an acquittal of the appear to be the most guilty’”?
discharged accused and shall be
a bar to future prosecution for A: There are cases:
the same offense, unless the
accused fails or refuses to PEOPLE vs. OCIMAR
testify against his co-accused
in accordance with his sworn August 17, 1992
statement constituting the
basis for his discharge. (10a) FACTS: This case involved a hold-
upping incident, committed in a bus in
Let’s take Section 17 and Section 18 together. Manila while traveling in the North
Discharge of an accused to be state witness means Express Way. There were four (4)
that you will convert an accused to become hold-uppers who rode in the bus.
“Hudas,” save his neck but hang them all! When they reach a certain point, they
stood up and pulled to their guns and
Under Section 18, once the witness is robbed the passengers. And they
discharged under Section 17, he is now placed themselves strategically: One of
CONSIDERED ACQUITTED and there is no way them stood behind the driver, “o, wag
for him to be brought back in the case EXCEPT kang kikilos, drive ka lang.” Yung iba
when he changes his mind and ayaw na niyang namang dito. Kanya-kanyang silang
mag-testify. That is the only exception. role eh. The others were the ones who
divested the passengers, “mga pitaka
Q: What are the requirements before a witness ninyo, relo… lahat!”
can be discharged? Now, there was one passenger
A: Section 17 enumerates the requirements. there who was a military man wearing
civilian clothes and may baril siya. So
“SAID ACCUSED DOES NOT APPEAR TO he wanted to fight back but one of
BE THE MOST GUILTY.” them saw him. Pag-bunot niya,
inunahan siya! So accused A shot that
Let’s comment on some of the requirements. passenger. Accused D naman saw A
One of the most important requirements for the shoot the victim. And of course all of
discharge of an accused is the fourth one – “Said them were charged with Robbery
accused does not appear to be the most guilty.” Based with Homicide in conspiracy - the act
from what I read from time to time, even lawyers of one is the act of all.
have been commenting on this. It seems they are The prosecution wants to utilize D
misquoting this eh, like 2 days ago, a lawyer said – the one who is behind the driver – as
that we must discharge the accused because he is state witness. The other accused
the least guilty. objected claiming conspiracy – “we are
all co-principal – the act of one is the
That is not what the law says! What the law act of all. So why do you say you are
says is, HE DOES NOT APPEAR TO BE THE
not the most guilty? Pare-pareho lang state witness at a hearing in support of the discharge.”
tayo. Same penalty.” So, there must be an affidavit and there must be a
hearing.
ISSUE: Will accused D be
qualified under the phrase “does not In the 1985 Rules, there was no need of a
appear to be the most guilty”? hearing. No need for the prosecution to present
evidence. Normally the fiscal will just file a
HELD: YES. When you say “he motion that we would like to use this witness and
does not appear to be the most guilty”, the court will discharge. Now, hindi na pwede
you do not apply the rule on yan because in most cases in the past, a person is
conspiracy. But you apply the rule on discharge and it turns out that he is the most
individual acts. In reality, who is more guilty. To avoid that possibility, there is now
guilty? The one who really shot the need to present affidavit, etc. and there must be a
victim or the one who is just behind hearing. The court will require presentation of
the driver? The reality is, the most evidence and it will decide whether or not to
guilty is the one who shot, although discharge.
for purposes of the RPC both of you
are co-principal. So, you look at it that Now, sabi ng court in the hearing for the
way. Do not apply the principle of the discharge of the accused, “There is no need to
act-of-the-one-is-the-act-of-all. You discharge him. Motion to discharge, denied!” So sabi
consider the most guilty in terms of ng accused, “Kawawa na ako nito because I already
the participation. admitted the crime in my affidavit! Tapos, hindi pala
“By ‘most guilty’ means the highest ako qualified! [‘nak ng pating naman o!].” What will
degree of culpability in terms of happened to you now? You Look at the last
participation in the commission of the paragraph of Section 17:
offense and not the severity of the
penalty imposed. While all the “Evidence adduced in support
of the discharge shall
accused maybe given the same penalty automatically form part of the
but by reason of culpability one may trial. If the court denies the
be least guilty if we take into account motion for discharge of the
accused as state witness, his
his degree of participation in the sworn statement shall be
perpetuation of the offense.” inadmissible in evidence.”
So that is fair enough because the affidavit

Q: Generally, when the fiscal, after criminal which is practically an admission of his
investigation, believes that one of them can be a participation, then if he is not discharged, do not
state witness, therefore he will not include his use it against him. It is inadmissible as evidence
name in the information. Is it allowed? against him. The leading case in this issue is the
A: NO, you have to include him first before 1993 case of
he can be a state witness. Let the court decide
whether he will be a state witness or not. You PEOPLE vs. CA AND
cannot discharge on your own. Remember under INSPECTOR JOE PRING
the Rules, the prosecutor is bound to file the 223 SCRA 475
information against ALL those who appear to be
responsible including this guy who you want to FACTS: Pring was involved in
use as state witness. But when you reach the kidnapping and one policeman
court, you file a motion to discharge and let the testified against him – Nonilo Arile.
court who will do it. There was a motion to discharge Arile
to testify against Pring. Then the
And under the New Rules, there must be a prosecution gave the defense the
HEARING to determine whether there should be affidavit of Arile. Based on that, the
discharge or not. That’s why the rule said, “the court ordered the discharge of Arile.
trial court must require the prosecution to present Pring questioned the procedure. This
evidence and the sworn statement of each proposed is the first case where the SC applied
this rule on hearing on the discharge pinatay naman siya ng ABB. Sabi nila (ABB),
of an accused. Sabi ni Pring, “Where is kung nakaligtas ka sa court, sa amin hindi ka
the hearing?” Prosecution: “Yon palang makaligtas. That’s what happened there.
motion to discharge na binigay namin sa
inyo?” Pring: “Ah, hindi naman Q: Normally, when is an accused discharged?
hearing yun! Hearing means, ilagay A: He is discharged before he testifies. You
mo si Arile sa witness stand subject to will use him. That’s why he is going to be
cross-examination because even under discharged. However, in the 1992 case of
Section 17, evidence adduced to
support the discharge shall ROSALES vs. COURT OF
automatically form part of the trial. APPEALS
Meaning, the state witness will not 215 SCRA 102
testify again. So what is contemplated
here is personal testimony and not the FACTS: The prosecution wants to
affidavit.” use an accused as a witness and he
was willing. Sabi ng prosecution, “We
ISSUE: Is the argument of Pring will file a motion to discharge you to
correct? be state witness.” The accused said,
“Hwag! Hwag!.. if you will do that
HELD: NO. Hearing means, you patay ako! Patayin talaga nila ako.
have the opportunity to read what he They will not allow me to testify.” But
will say and the opportunity to object. still the prosecution used him. He took
Yan ang ibig sabihin ng hearing. Hindi a stand and he pointed to all his
kailangan na he will be questioned companions. So he testified first bago
personally in court. That satisfies the nag-file ng motion to discharge ang
requirement of hearing. prosecution.
“Hence, in resolving the issue in
this petition, the proper question we ISSUE: Is that correct? Can the
should address is: Was there a failure testimony come ahead before the
to observe the spirit and intent of discharge?
Section 17, Rule 119 in the case at bar?
We rule in the NEGATIVE. The HELD: YES because of the peculiar
prosecution has submitted the sworn fact – his life is in danger eh. Anyway
statement of accused Nonilo Arile and according to the law, should the
its evidence showing that the discharge be made, is should be made
conditions for discharge have been by the prosecution before resting its
met. Neither can it be denied that the case (Section 17). In the case at bar, at
defense was able to oppose the motion that moment, the prosecution has not
to discharge Nonilo Arile. With both rested its case. So puwede.
litigants able to present their side, the “While it is the usual practice of
lack of actual hearing was not fatal the prosecution to present the accused
enough to undermine the court's who turns state witness only after his
ability to determine whether the discharge, the trial court may
conditions prescribed under Section nevertheless sanction his discharge
17, Rule 119 were satisfied.” after his testimony if circumstances so
warrant. In the case before Us, the
imminent risk to his life justified the
So there is already substantial compliance deviation from the normal course of
with the hearing. And that was the first case procedure as a measure to protect him
interpreting this new provision after the 1985 while at the same time ensuring his
Rules. But for the merits, later na-acquit man si undaunted cooperation with the
Pring ba which is a different issue. Yung dito, prosecution. Indeed, as is explicit from
discharge lang ang issue eh. On the merits, he was the Rule, as long as the motion for
acquitted. But after one year from his acquittal, discharge of an accused to be utilized
as a state witness is filed before the BAR QUESTION: What happens when an
prosecution rests, the trial court accused is discharged, and after he is discharged,
should, if warranted, grant it.” sabi ng prosecution, “Teka muna nagkamali ako, di
pala kita kailangan. Balik ka!” Can it be done?
A: Sabi ng SC, NO, acquitted na yan! The only
Q: What happens if an accused who is the reason for him to come back is, he is asked to
most guilty is erroneously discharged – ang mga testify pero ayaw niya. Prosecution: “But I don’t
naiwan, yung mga pipitsugin? Is the erroneous need him.” SC: that is your fault because first, why
discharge valid? Is he deemed acquitted? did you ask for his discharge? So once he is
A: The SC said YES. Even if there is a mistake, discharged, he is deemed acquitted whether you
he is now acquitted once he is discharged. His use him or do not use him. The only way for him
testimony is admissible. In the case of to come back is, you want to use him but he does
not want to testify because he is double-crossing
BOGO-MEDELLIN CO. vs. the Government.
JUDGE PEDRO SON
209 SCRA 329 (May 27, 1992) Lets go further. There is another law, about
this witness. You try to compare this principle
HELD: “Any witting or unwitting with the provision of RA 6981 – The Witness
error of the prosecution in asking for Protection Act. Under RA 6981, the fiscal would
the discharge of an accused and of not even include you in the charge anymore, for
the trial court in granting the petition as long as the DOJ will say that he is qualified, he
for discharge, so long as no question is covered by the Witness Protection Program.
of jurisdiction is involved, would not Under the law, the fiscal should not include him
deprive the discharged accused of the anymore.
acquittal that is specified in Section 10 Unlike in criminal procedure kailangan isali
of Rule 119 and of the constitutional ka muna bago ka i-discharge. Sa RA 6981 naman,
guarantee against double jeopardy. It hindi ka na kasali. That is why the
is also relevant to note that the constitutionality of the law was challenged in the
improper or mistaken discharge of an case of
accused would not affect his
competency as a witness or render WEBB vs. DE LEON
inadmissible his testimony.” August 23, 1995
Q: Let’s go back to Evidence. He is the most FACTS: State witness Alfaro

guilty. His discharge was wrong. Is his testimony admitted that she was with them. She
admissible? admitted kasama siyang nagpunta sa
A: YES, because he can perceive and bahay ng mga Vizconde. And then she
perceiving and he can make known his was placed in the Witness Protection
perception to others. That is the only Program and was used against Hubert
qualification. There is no violation of marital Webb. And according to Webb, the
disqualification or attorney-client confidentiality, provision of the Witness Protection
etc. Wala man! So you go back to Evidence. The Act – which authorizes the DOJ to
testimony of the witness is qualified although it place somebody in the Witness
might be polluted and he did it to save his game – Protection Program, and once he
that is not enough to make his testimony certifies that she is covered, the fiscal
inadmissible. is no longer allowed to file a case
against her (state witness) – is
Q: One thing more, who can discharge the violative of the judicial prerogative to
witness? discharge a witness because you
A: The court where the very case is pending. jumping the gun on the court.
That’s the rule – the court where the case is According to Webb, it should be
pending. the court that will discharge and not
the DOJ. The law is not valid because
it is an encroachment of a judicial
prerogative. It is an intrusion for it is HELD: This is because the court

only the court which has the power has already acquired jurisdiction over
under the rules on criminal procedure the person of the accused. So the SC
to discharge an accused as state said, “Section 17 of Rule 119 does not
witness. support the proposition that the
power to choose who shall be a state
ISSUE #1: Is Webb’s argument witness is an inherent judicial
valid? prerogative. Under this provision the
HELD: “Webb’s argument lacks court is given the power to discharge
appeal for it lies on the faulty as state witness only because it has
assumption that the decision whom to already acquired jurisdiction over the
prosecute is a judicial function, the crime and the accused. The discharge
sole prerogative of courts and beyond of an accused is part of the exercise of
executive and legislative interference. jurisdiction but is not a recognition of
In truth, the prosecution of crimes an inherent judicial function.”
appertains to the executive
department of government whose ISSUE #4: Is it wise for Congress
principal power and responsibility is to enact this law? Why will Congress
to see that our laws are faithfully enact this kind of law that will
executed. A necessary component of determine that the witness will not be
this power to execute our laws is the included in the information?
right to prosecute their violators. The HELD: YES. It is a wise legislation.
right to prosecute vests the prosecutor “Moreover, the Rules of Court have
with a wide range of discretion — the never been interpreted to be beyond
discretion of whether, what and whom change by legislation designed to
to charge, the exercise of which improve the administration of our
depends on a smorgasbord of factors justice system. The Witness Protection
which are best appreciated by Act is one of the much sought penal
prosecutors. We thus hold that it is not reform laws to help government in its
constitutionally impermissible for uphill fight against crime, one certain
Congress to enact R.A. No. 6981 cause of which is the reticence of
vesting in the Department of Justice witnesses to testify.”
the power to determine who can
qualify as a witness in the program
and who shall be granted immunity SEC. 19. When mistake has
been made in charging the
from prosecution.” proper offense. – When it
becomes manifest at any time
ISSUE #2: How do you reconcile before judgment that a mistake
has been made in charging the
this ruling with the rule that only the proper offense and the accused
court has the power to discharge? cannot be convicted of the
HELD: Simple! In the Witness offense charged or any other
offense necessarily included
Protection Program, the accused is therein, the accused shall not
NOT even accused in any case yet. be discharged if there appears
Wala pa! But once he is accused, you good cause to detain him. In
such case, the court shall
need the consent of the court to commit the accused to answer
discharge, that is kapag kasali na! Pero for the proper offense and
kung hindi pa kasali, there is no need dismiss the original case upon
the filing of the proper
for the court’s consent to decide information. (11a)
because that is an executive function.
You co-relate Section 19 with the last
ISSUE #3: And why is the court’s paragraph of Section 14, Rule 110:
consent necessary once the accused is
charged in court? If it appears at anytime
before judgment that a mistake
has been made in charging the 3. In Rule 119, evidence is necessarily

proper offense, the court shall
dismiss the original complaint being presented, hence the trial
or information upon the filing court is now in a better position to
of a new one charging the conclude that manifestly the
proper offense in accordance
with section 19, Rule 119, accused cannot be convicted of the
provided the accused shall not offense charged or of one that it
be placed in double jeopardy. necessarily includes; whereas
The court may require the
witnesses to give bail for In Rule 110, since no evidence has
their appearance at the trial. been presented at that stage, the
error would appear or be
So the same ‘no? The accused shall be discoverable from a review of the
discharge because of a wrong information upon records of the preliminary
filing of the correct one. So Section 14 of Rule 110 investigation; and
and Section 19 of Rule 119 talk of the same thing.
4. In Rule 119, the permissible stage for
QUESTION: how will you distinguish the effecting that substitution is “at any
two provisions? Kung tingnan mo mukang time before judgment”; whereas
pareho eh. But for academic purposes, there are In Rule 110, it is sufficient that “it
differences made by Justice Regalado in the 1994 appears…that a mistake has been
case of GALVEZ VS. CA (237 SCRA 685) Alam made in charging the proper
mo itong si Regalado, siya din ang nag- offense…” which situation
distinguish ng amendment and substitution of contemplates a longer time span,
information under Rule 110 which was asked in inclusive of the period from the
the bar and thoroughly discussed in the case of filing of the information up to and
TEEHANKEE VS. MADAYAG. In the case of before trial.
Galvez naman, gi-distinguish naman niya ang
Section 14 Rule 110 and Section 19 Rule 119. So after I read the case of Galvez, I said
Regalado has a very sharp mind. Masyadong
Q: Distinguish Section 14 of Rule 110 and matalas and utak ba! A very small distinction,
Section 19 of Rule 119. makita niya eh. And it takes pain to analyze. That
A: For academic purposes, the following are is the product of a sharp mind. But no wonder
the distinctions: because pag-kuha niya ng bar, 96.70% gud ang
average niyan! He is the highest for the record.
1. Rule 119 is the rule specifically Sabi nila si Marcos. Yes, but that is not official.
governing the trial stage; whereas Istorya lang yun. Si Marcos nag oral examination
Rule 110 provides the procedural before the SC pero binabaan ang average. But on
governance for the prosecution of record, it is Regalado who is the highest in the
offenses; bar. Nobody has beaten that. Makita ninyo man
ba sa decisions niya. Masyadong matalas, very
2. Rule 119 is more directly and sharp!
principally directed to the trial
court to invest it with the requisite
SEC. 20. Appointment of
authority to direct by itself the acting prosecutor. – When a
dismissal and re-filing of the prosecutor, his assistant or
informations therein deputy is disqualified to act
due to any of the grounds
contemplated; whereas stated in section 1 of Rule 137
Rule 110 is directed to the prosecutor or for any other reason, the
who can and should institute judge or the prosecutor shall
communicate with the Secretary
remedial measures for the of Justice in order that the
dismissal of the original latter may appoint an acting
prosecutor. (12a)
information and the re-filing of the
correct one, otherwise he would be SEC. 21. Exclusion of the
recreant to his duties; public. – The judge may, motu
proprio, exclude the public
from the courtroom if the Now, they want to justify it on the ground
evidence to be produced during
the trial is offensive to that this involves public interest so the SC should
decency or public morals. He relax the rules. I cannot anticipate how the SC
may also, on motion of the will resolve the matter because everybody has
accused, exclude the public
from the trial except court gotten used to the impeachment trial so
personnel and the counsel of everybody wants to hear what is happening,
the parties. (13a) especially if the person involved is Erap. Such a
standing memorandum was not applied to the
Section 21 is an exception to the rule found in impeachment trial because it was not a judicial
Rule 115 about the right of the accused to a public trial but a political trial. It is the Senate which
trial. There are some exceptions to that right. controls the rules, not the courts. This is the
And under Section 21: difference. But this case is before the
Sandiganbayan which is a different story.
1. the court may, moto propio, exclude the
public from the courtroom if the evidence Because definitely many people would like to
to be produced during the trial is go there but how do you get a seat them all in the
offensive to decency or public morals. Sandiganbayan? You will have to exclude
Normally this applies in trial for the crime hundreds, if not thousands and allow only the
of rape or in crimes against chastity, entry of a few. But if it is televised, then
where the nature of the evidence is such everybody can watch again.
that the public may want to go there
because they only want to listen to these SEC. 22. Consolidation of
sadiscious details of the testimony. The trials of related offenses. –
Charges for offenses founded on
public can be excluded. Only the lawyers, the same facts or forming part
the parties are allowed inside. Yaan! of a series of offenses of
similar character may be tried
jointly at the discretion of
2. on motion of the accused, the court may the court. (14a)
exclude the public. That is his right to
speedy trial. Kung ayaw niya, e di okey Do not confuse this consolidation here in Rule
lang! 119 with the consolidation in Rule 111.
Aside from the two exceptions, the other In Rule 111, you are consolidating the
grounds where the public can be excluded, based criminal case and the civil case – the civil case
on American Jurisprudence are: which is brought separately will be consolidated
1. To prevent disorder; with the criminal case. Here in Rule 119, you are
2. To prevent embarrassment to a consolidating two or more criminal cases which
witness; are identical, founded on the same facts or
3. To limit attendance to seating forming part of the same series of offense of
capacity. similar character. This is similar to consolidation
in Rule 31 on civil cases.
This is the very issue now. I’ve been reading
current newspaper reports that everybody is But in civil cases, we can allow related cases
anticipating that the case against Erap will be to be filed together eh – joinder of parties, which
filed in the Sandiganbayan. The DOJ wants is not allowed in criminal cases. The only
everything to be televised all over again. They practice allowed in criminal cases is
are filing a petition before the Supreme Court. consolidation. But there could be no such thing
There is a standing order of the Supreme Court as joinder of accused in one information.
prohibiting it. It should not be televised because
of what happened in the Aquino libel case Let’s go to Section 23 on Demurrer – one of
[Aquino vs. Beltran]. Because of that, ayaw na ng the most important provisions in Rule 119.
SC na i-televised. It becomes a sarswela – show
ba! – rather than an a public trial. SEC. 23. Demurrer to
evidence. – After the
prosecution rests its case, the
court may dismiss the action on
the ground of insufficiency of Now of course, it is now emphasized in

evidence (1) on its own
initiative after giving the paragraph 1 that a demurrer may be filed with or
prosecution the opportunity to without leave of court. Leave of court means before
be heard or (2) upon demurrer your demurrer, you file muna a motion for
to evidence filed by the
accused with or without leave permission to file the demurrer. The court grants
of court. permission, you file the demurrer. You can still
If the court denies the file the demurrer even without the permission of
demurrer to evidence filed with
leave of court, the accused may the court. If you file demurrer with or without
adduce evidence in his defense. leave and it is granted, then you have no problem
When the demurrer to evidence because the accused will be acquitted.
is filed without leave of
court, the accused waives the
right to present evidence and The problem is, if your demurrer is denied.
submits the case for judgment Meaning, the court says that there is sufficient
on the basis of the evidence
for the prosecution. (15a) evidence to prove at least the guilt of the accused.
The motion for leave of If the demurrer was filed with prior leave of court
court to file demurrer to and it is subsequently denied, the accused is
evidence shall specifically
state its grounds and shall be allowed to present evidence to prove his defense.
filed within a non-extendible
period of five (5) days after But if you filed the demurrer without prior
the prosecution rests its case.
The prosecution may oppose the leave of court and the demurrer is denied, then
motion within a non-extendible you are already convicted because the accused
period of five (5) days from
its receipt.
has forfeited his right to present evidence. It is
If leave of court is practically equivalent to a waiver of his right to
granted, the accused shall file present evidence. So conviction automatically
the demurrer to evidence within
a non-extendible period of ten
follows. This is what the rules say.
(10) days from notice. The
prosecution may oppose the What is the rationale behind this? The 1997
demurrer to evidence within a
similar period from its
case of
receipt.
The order denying the motion PEOPLE vs. TURINGAN
for leave of court to file
demurrer to evidence or the
282 SCRA 424
demurrer itself shall not be
reviewable by appeal or by HELD: “The rationale for the
certiorari before judgment. (n)
rule is that when the accused
moves for dismissal on the ground
Demurrer is a motion to dismiss. After the
of insufficiency of the prosecution
prosecution has rested its case, based on the order
evidence, he does so in the belief
of trial, the accused now presents his case. But
that said evidence is insufficient to
sabi ng accused, “Well, I will present evidence on
convict and, therefore, any need
the assumption that the prosecution has proven
for him to present any evidence is
prima facie the crime and my guilt. [meaning the
negated. It is said that an accused
presumption of innocence has already been
cannot be allowed to wager on the
disputively rebutted ba!].” But suppose the
outcome of judicial proceedings by
prosecution has not proven the facts or not
espousing inconsistent viewpoints
proven the crime or my guilt, “why will I present
whenever dictated by convenience.
evidence? Why will I prove my innocence when
The purpose behind the rule is also
I’m still presumed innocent?” Yaan! Yan ang
to avoid the dilatory practice of
demurrer. The same thing in civil cases – why
filing motions for dismissal as a
will you prove your defense when the plaintiff
demurrer to the evidence of the
failed to prove his cause of action? So instead of
prosecution and, after denial
presenting evidence, he will file a demurrer.
thereof, the defense would then
Actually it’s a motion to dismiss.
claim the right to present its
evidence.”
So, there is an inconsistency in saying that the

prosecution’s evidence is not sufficient, and yet BAR QUESTION: How do you distinguish
when it is denied, “OK, I will present evidence.” the rule on demurrer of evidence in civil cases
Ahh di puwede yan! And many defense counsels with the rule of demurrer in criminal cases?
in the past have filed demurrer just to delay the A: The following are the distinctions:
presentation of evidence when there is no chance
for said demurrer to be granted. 1. In civil cases when the demurrer is
denied, the defendant will now
BERNARDO vs. COURT OF present his evidence to prove his
APPEALS defense because the defendant
278 SCRA 782 does not waive his right to present
in the event the demurrer is
HELD: “The power to grant leave denied; whereas
to the accused to file a demurrer is In criminal cases, if the demurrer of the
addressed to the sound discretion of accused is denied the accused is no
the trial court. The purpose is to longer allowed to present evidence
determine whether the accused in if he had no prior leave;
filing his demurrer is merely stalling
the proceedings. [Is he really serious 2. In civil cases, if the defendant’s
or is only delaying the proceedings?] demurrer is granted and the case is
Judicial action to grant prior leave to dismissed and the plaintiff appeals
file demurrer to evidence is to the appellate court and on
discretionary upon the trial court. But appeal the court reverses the order
to allow the accused to present of dismissal, the appellate court
evidence after he was denied prior renders judgment immediately
leave to file demurrer is not against the defendant. Goodbye! –
discretionary.”[Meaning, when you talo na ang defendant. There is no
file a demurrer without prior leave, more remanding; whereas
you assume the risk eh because once In criminal cases, if the demurrer is
your demurrer is denied, you no granted, there is no more appeal
longer have a chance to present by the prosecution because the
evidence.] accused has already been
“Once prior leave is denied and acquitted. Otherwise, there will be
the accused still files his demurrer to a case of double jeopardy;
evidence or motion to dismiss, the
court no longer has discretion to allow 3. In civil cases, the court cannot on its
the accused to present evidence. The own initiative, dismiss the case
only recourse left for the court is to after the plaintiff rests without any
decide the case on the basis of the demurrer by the defendant. There
evidence presented by the is no such thing as motu propio
prosecution. And, unless there is grave demurrer; whereas
abuse thereof amounting to lack or In criminal cases, the court may
excess of jurisdiction, the trial court's dismiss the action on its own
denial of prior leave to file demurrer initiative after giving the
to evidence or motion to dismiss may prosecution the chance to present
not be disturbed. However, any its evidence.
judgment of conviction by a trial court
may still be elevated by the accused to
the appellate court.” [You cannot Demurrer used to composed only of two
question the order of denial of prior paragraphs. Under the new rules, there are three
leave, this is discretionary but you can (3) new additional paragraphs. The additional
appeal the judgment of conviction provisions are:
itself.]
The motion for leave of I was watching that and I do not seem to
court to file demurrer to
evidence shall specifically agree with that kind of set-up and I had the
state its grounds and shall be opportunity once in a criminal case where I was
filed within a non-extendible the private prosecutor where after we rested, the
period of five (5) days after
the prosecution rests its case. defense, in open court said, “Your honor, we
The prosecution may oppose the would like to ask permission for demurrer.” And
motion within a non-extendible the court said, “Granted!”. I said “Your honor,
period of five (5) days from
its receipt. this is not the correct procedure because he
If leave of court is doesn’t even say what are his grounds for
granted, the accused shall file demurrer. The court should not grant the
the demurrer to evidence within
a non-extendible period of ten permission immediately without those grounds.”
(10) days from notice. The To my mind, when you file a motion for leave,
prosecution may oppose the you must state the grounds to give the court a
demurrer to evidence within a
similar period from its synopsis or an idea of what you are going to raise
receipt. so that the court will be attracted to grant. The
The order denying the motion reason behind this leave is to put a stop to the old
for leave of court to file
demurrer to evidence or the practice. The old practice was of granting
demurrer itself shall not be demurrer immediately and in most cases the
reviewable by appeal or by demurrer is really without merit. This is why this
certiorari before judgment. (n)
was placed in the Rules of Court so that the court
These deadlines were not found before. If will weigh whether “ano ba? Pagbigyan ko ba ito
you want to file leave, pag-rest, 5 days lang, you o hindi?” Otherwise, we would be going back to
file a motion for leave. The prosecution may the old system.
oppose the leave of within 5 days. After the court
grants leave, you file the demurrer within 10 days And the judge told me, “Your arguments are
lang. The obvious purpose here is not to delay the sound, but the trouble is there is nothing in the
trial. rules which support you so, we’ll just grant
leave.” Wala din. Of course, there was a leave,
When the court denies the motion for leave or there was a demurrer, and I opposed and it was
the demurrer itself, as a rule, it is not reviewable. denied. But ang issue ko, I’ve been harping on
You cannot review it. The remedy is to go to trial that point for so long. You cannot just say leave,
and if you are convicted, appeal on the judgment you must tell the court what you will raise. Give
of conviction. But as a general rule, when a us an idea so that the court will be convinced to
demurrer is denied, you cannot go on certiorari. grant leave. If the court will deny the leave, you
I’m not saying that this is 100% but there are file it at your own risk.
some instances when the court, based on equity,
allows it. Now, the 2000 Rules states, “The motion for
leave of court to file demurrer to evidence shall
Take note that when you file a leave of court specifically state its grounds.” Hindi na puwede
to file a demurrer, the accused must specifically yung “we intend to file a demurrer, may we ask
state the grounds. for leave” without stating the grounds. At least,
sabi ko, I have been correct all along in
The 1985 Rules just says you get prior leave. advocating this. So when I read this in the new
This is what I noticed here among trial courts: rules, I said, “Ay salamat! Tama pala ako all
after the prosecution rests, sometimes the defense along!” Once you know the philosophy of the
counsel will say, “Your honor, we will file a law, hindi ka man mawala ba! You can always
demurrer. May we ask for leave of court to file the argue from that point.
demurrer?” And I noticed that the courts will say SEC. 24. Reopening. – At any
“Alright, leave granted, file your demurrer.” Parang time before finality of the
naging automatic ba! Pag-hingi mo ng leave, judgment of conviction, the
judge may, motu proprio or upon
bigay kaagad! motion, with hearing in either
case, reopen the proceedings to
avoid a miscarriage of justice.
The proceedings shall be
terminated within thirty (30) kind of remedy. This is allowed without any
days from the order granting
it. (n) specific rule except justice and equity.
Section 24 is a new provision. The judge may For the first time, reopening of trial in a
motu propio or upon motion reopen the criminal case is now found in Section 24 of the
proceedings. 2000 Rules. But there is something wrong here. In
reopening of trial, you do it before the case is
Actually, reopening of trial is a remedy which decided. Dito naman, you do it “at any time before
is recognized but not found in the rules. Even the the finality of the judgment of conviction.” Anong
rules on civil procedure, there are motions for klase ito?! How can this be? There is already a
new trials but you cannot find a rule for the re- judgment of conviction and then, you reopen?? I
opening of trial. But the SC has always think the correct motion is a new trial.
recognized that there is such a remedy.
I remember when Galvez was here to lecture
EXAMPLE: I will rest my case, the trial is on the Rules on Criminal Procedure. He said that
finished and the next step is the decision. But somebody in the Supreme Court nakialam dito
after you rest, you have additional evidence eh. The original draft was “anytime before judgment
discovered for the first time and therefore could there can be re-opening upon motu propio or motion.”
not have been presented beforehand. But when the new rules came out, it said “at any
time before finality of the judgment of conviction.” –
Q: What will you do? Will you file a motion dinagdagan ba! The person who changed it must
for new trial based on the newly discovered have thought the committee had erred but the
evidence? change made it even worse. That’s why the
A: NO, you cannot – wala pang decision! committee wrote a letter to the SC to amend this
Motion for new trial based on new evidence is mistake.
proper only after a decision has been made and
the same is not yet final and executory. Now, there are some special laws that are
related to the subject of trial and they are
Q: In the example, wala pang decision eh. considered as part and parcel of the criminal
What is the proper remedy? procedure. I am referring to RA 4908, RA 6033,
A: The correct remedy is motion to reopen the RA 6034 and RA 6035. RA’s 6033, 6034 and 6035
trial because there is no judgment yet. are also known as the Laurel Laws because the
author of these laws is Senator Laurel in the 70’s.
Q: On what grounds?
A: Justice and equity. This is the only ground RA 4908 – AN ACT REQUIRING JUDGES OF
for re-opening because there is no specific COURTS TO SPEEDILY TRY
ground. CRIMINAL CASES WHEREIN
THE OFFENDED PARTY IS A
Q: Now can the court on its own, re-open a PERSON ABOUT TO DEPART
trial, civil or criminal? FROM THE PHILIPPINES WITH
A: YES. This has happened several times. NO DEFINITE DATE OF RETURN
The case has already been submitted for trial, this
happened to me several years ago. The court said RA 6033 – AN ACT REQUIRING COURTS
“before the court renders a decision, the court TO GIVE PREFERENCE TO
would like to conduct an ocular inspection and CRIMINAL CASES WHERE THE
re-enactment of the alleged crime in the place PARTY OR PARTIES INVOLVE
where the crime was committed.” Motu propio, ARE INDIGENTS
the court ordered the re-enactment. This is an
instance of re-opening the trial. This is allowed RA 6034 – AN ACT PROVIDING
because this is an inherent power of the court, if TRANSPORTATION AND
it really wants to find out the truth. You cannot OTHER ALLOWANCES FOR
find any provision in the rules regulating that INDIGENT LITIGANTS.
RA 6035 – AN ACT REQUIRING prosecution absolutely failed

to prove the guilt of the
STENOGRAPHERS TO GIVE accused or merely failed to
FREE TRANSCRIPT OF NOTES prove his guilt beyond
TO INDIGENT AND LOW reasonable doubt. In either
case, the judgment shall
INCOME LITIGANTS AND determine if the act or
PROVIDING A PENALTY FOR omission from which the civil
THE VIOLATION THEREOF liability might arise did not
exist. (2a)
So that takes care of Rule 119.

There is something wrong in convicting
somebody without even a clear statement of why
Rule 120 he is guilty. According to the SC, why is it that
JUDGMENT the law requires, especially in criminal cases, the
judge should be careful in rendering a judgment?
Why must it be clearly stated why you are guilty
Q: What is the definition of judgment in under Section 1 & 2. Why is it that under Sections
criminal cases? 1 and 2, the judgment must clearly state why you
A: Section 1: are guilty? In the following cases of
SECTION 1. Judgment; PEOPLE vs. CAYAGO

definition and form. – Judgment
is the adjudication by the
312 SCRA 623 [1999]
court that the accused is
guilty or not guilty of the HELD: “A strict compliance with
offense charged and the
imposition on him of the proper
the mandate of the said provision is
penalty and civil liability, if imperative in the writing of every
any. It must be written in the decision. Otherwise, the rule would
official language, personally
and directly prepared by the
simply a tool for speculations, which
judge and signed by him and this Court will not countenance
shall contain clearly and specifically in criminal cases involving
distinctly a statement of the
facts and the law upon which it
the possible deprivation of human
is based. (1a) life.”
Q: What does it contain? PEOPLE vs. BUGARIN

A: Section 2: 273 SCRA 384 [1997] J. Mendoza
SEC. 2. Contents of the HELD: “The requirement that the

judgment. – If the judgment is
of conviction, it shall state decisions of courts must be in writing
(1) the legal qualification of and that they must set forth clearly
the offense constituted by the and distinctly the facts and the law on
acts committed by the accused
and the aggravating or which they are based serves many
mitigating circumstances which functions. It is intended, among other
attended its commission; (2) things, to inform the parties of the
the participation of the
accused in the offense, whether reason or reasons for the decision so
as principal, accomplice, or that if any of them appeals, he can
accessory after the fact; (3) point out to the appellate court the
the penalty imposed upon the
accused; and (4) the civil findings of facts or the rulings on
liability or damages caused by points of law with which he disagrees.
his wrongful act or omission to More than that, the requirement is an
be recovered from the accused
by the offended party, if there assurance to the parties that, in
is any, unless the enforcement reaching judgment, the judge did so
of the civil liability by a through the processes of legal
separate civil action has been
reserved or waived. reasoning. It is, thus, a safeguard
In case the judgment is of against the impetuosity of the judge,
acquittal, it shall state preventing him from deciding by ipse
whether the evidence of the
dixit [by instinct]. Vouchsafed neither failure to prosecute.” With that, the
the sword nor the purse by the accused went home happy.
Constitution but nonetheless vested After the accused left and shortly
with the sovereign prerogative of thereafter, the offended party arrived
passing judgment on the life, liberty or with his lawyer. After they learned of
property of his fellowmen, the judge the dismissal they explained that they
must ultimately depend on the power had to travel far, had a flat tire and got
of reason for sustained public caught in traffic. The judge found their
confidence in the justness of his earlier non-appearance as justified and
decision. The decision of the trial court ordered the revocation or
in this case disrespects the judicial reconsidered the earlier decision of
function.” dismissal, consequently resetting the
trial.
In other words, among the three branches of The accused learned of the
government, the judiciary is the weakest. It has succeeding events and protested that
no power of the purse or the sword. Purse – this was a case of double jeopardy. He
congress holds the budget. Sword – the judiciary contends that all the necessary
has no army to enforce decisions unlike the elements of double jeopardy are
executive where the executive is already the present: valid complaint, valid
commander-in-chief of the AFP. So how can the information filed in a competent court;
judiciary command the respect of the people? had an arraignment; and the case was
There is only one way – the force of its decisions – dismissed without his express consent.
that its decisions are well argued and logical.
This is the only way to have the people believe in HELD: The order of dismissal was
the judiciary. If it cannot cope with this, it is an equivalent to an acquittal but a
insult, an attack to judges who do not know how judgment of acquittal under Rule 120
to write decisions, because this is how the must be in writing. The order
judiciary earns the respect of the people. dismissing the case was not in writing
Otherwise, baka wala ng maniwala sa korte. That but was dictated in open court. It was
is how the SC explained that idea in the case of never reduced into writing. What was
Bugarin. reduced to writing was the second
order which revoked the first order.
One interesting case in relation to Section 2 Since it was never in writing, there
which dealt with the double jeopardy rule was was no judgment of acquittal.
the case of Therefore, there is no double jeopardy.
ABAY, SR. vs. GARCIA “However, this order of dismissal
162 SCRA 665 must be written in the official
language, personally and directly
FACTS: On the day of trial, the prepared by the judge and signed by
accused was there with his lawyer. him conformably with the provisions
The offended party was not in court. of Rule 120, section 2 of the Rules of
The judge asked the fiscal what action Court. In the instant case, it is very
he wanted to proceed with. The fiscal clear that the order was merely
said, “We will look at the records, whether dictated in open court by the trial
the offended party were properly judge. There is now showing that this
informed.” Finding that the offended verbal order of dismissal was ever
party was properly informed, the reduced to writing and duly signed by
fiscal said [oral motion], “In that case him. Thus, it did not yet attain the
your honor, we are moving for the effect of a judgment of acquittal, so
dismissal of the criminal case for lack of that it was still within the powers of
evidence now upon us – wala ang offended the judge to set it aside and enter
party eh.” The judge dictated in open another order, now in writing and
court, “Alright, the case is dismissed for duly signed by him, reinstating the
case.”
The rule under the 1985 Rules was taken from

This is how the Supreme Court skirted the decided cases such as the case of METROBANK
double jeopardy rule by applying Rule 120, VS. CA (188 SCRA 259). In this case, the accused
Sections 1 and 2. was charged with estafa. After trial, the court
said that there was no estafa. It is only a simple
The 2nd paragraph of Section 2 is new and it loan – so there is no crime. Normally, the next
radically changed the language of the previous step is to let the offended party file a civil case to
rule. Section 2, second paragraph: demand payment of the loan. But in the case of
Metrobank, the SC said that it is a double effort.
In case the judgment is of The Supreme Court said, “While it is true that
acquittal, it shall state
whether the evidence of the petitioner Metrobank can no longer collect
prosecution absolutely failed private respondent's civil liability on the basis of
to prove the guilt of the the criminal case filed, it could nonetheless collect
accused or merely failed to
prove his guilt beyond the said civil liability prayed for on the basis of
reasonable doubt. In either the non-payment of the loan contracted by
case, the judgment shall respondent spouses from the bank. There appear
determine if the act or
omission from which the civil to be no sound reasons to require a separate civil
liability might arise did not action to still be filed considering that the facts to
exist. (2a) be proved in the civil case have already been
established in the criminal proceedings where the
This is just a repetition of Rule 111, Section 2 accused was acquitted. To require a separate civil
[last paragraph] when the judgment acquits the action simply because the accused was acquitted
accused, the judgment should state whether the would mean needless clogging of court dockets
evidence of the prosecution absolutely failed to and unnecessary duplication of litigation with all
prove the guilt of the accused or merely failed to its attendant loss of time, effort, and money on
prove his guilt beyond reasonable doubt. In the part of all concerned.” This was the 1985
either case, the judgment shall determine if the Rules.
act or omission from which the civil liability
might arise does not exist. Because generally if Q: Now, is that rule still valid under the 2000
you are acquitted on reasonable doubt, it will not Rules?
bar the filing of a separate civil action. But if the A: The new rule is silent. There is nothing
fact from which the civil liability might arise does here that says that the accused may be acquitted
not exist, then the acquittal is already a bar to a but found civilly liable unlike the 1985 Rules. It
future civil liability. only says that in case of acquittal, the judgment
should state whether the acquittal is based merely
Compare this with the language of the 1985 on reasonable doubt or the prosecution
Rules, Rule 120, Section 2, last paragraph: absolutely failed to prove the guilt of the accused.
In either case, the judgment shall determine if the
In case of acquittal, unless
there is a clear showing that act or omission from which the civil liability
the act from which the civil might arise does not exist. But as it is worded
liability might arise did not now, it would seem, you should file a separate
exist, the judgment shall make
a finding on the civil civil case. And the practice of holding the
liability of the accused in accused liable civilly in a criminal case where he
favor of the offended party. is acquitted, seems to be no longer possible.
According to the 1985 Rules, if the accused is Under the new rules, just acquit – let him file
acquitted based on reasonable doubt, the court a separate civil case. The old rule is simplier: No
may order the accused to satisfy civil liability need! Dun na mismo sa criminal case – acquit
because the cause of action in the civil case is him but make him civilly liable. But now, the
already proven although the accused is acquitted. language is different. It is a radical departure
It is possible for the accused to be acquitted and from the 1985 rules.
yet is found to be civilly liable based on the 85
Rules.
SEC. 3. Judgment for two or A: If YES, then apply Section 4. You convict the
more offenses. – When two or
more offenses are charged in a accused of the offense proved which is included
single complaint or information in the offense charged, or of the offense charged
but the accused fails to object which is included in the offense proved.
to it before trial, the court
may convict him of as many
offenses as are charged and Q: What if kung malayong-malayo? The crime
proved, and impose on him the proved is different from the crime charged like
penalty for each offense,
setting out separately the for example: The crime charged is homicide and
findings of fact and law in what is proved is robbery. What will happen?
each offense. (3a) Will you apply Section 14 of Rule 110 on
substitution of information?
Let’s go back to Rule 110 on duplicitous A: No, you will not apply Rule 110 Section 14
complaint or information. Under Section 3 of Rule because we are already through with that stage.
110, this is defined as a complaint or information We are now in the trial stage where the crime
which charges more than one offense. This is not proved is different from the crime charged.
allowed. And the remedy here is you file a Therefore, the proper remedy here is Section 19 of
Motion to Quash under Section 3 [f], Rule 117. Rule 119, last paragraph:
But the defect is waivable because if you do RULE 119, SEC. 19. When
not file a Motion to Quash, the trial can proceed mistake has been made in
charging the proper offense. –
and if you are found guilty for committing 2 or When it becomes manifest at any
more crimes, then there will be 2 or more time before judgment that a
penalties. Under Section 3, the court may convict mistake has been made in
charging the proper offense and
the accused of as many offenses as are charged the accused cannot be convicted
and proved and impose on him the penalty for of the offense charged or any
each offense if the accused fails to object the other offense necessarily
included therein, the accused
duplicitous complaint before the trial. shall not be discharged if
there appears good cause to
detain him. In such case, the
SEC. 4. Judgment in case of court shall commit the accused
variance between allegation and to answer for the proper
proof. – When there is variance offense and dismiss the
between the offense charged in original case upon the filing
the complaint or information of the proper information.
and that proved, and the (11a)
offense as charged is included
in or necessarily includes the [Editor: Try to correlate this with Section 14, Rule
offense proved, the accused
110. They are similar. But for clearer understanding,
shall be convicted of the
offense proved which is please go back to Section 19, Rule 119 in the case of
included in the offense GALVEZ on the distinctions between these two
charged, or of the offense provisions. Thanks!]
charged which is included in
the offense proved. (4a) SEC. 5. When an offense
includes or is included in
another. – An offense charged
We will go to this basic principle: necessarily includes the
offense proved when some of the
essential elements or
Mr. Calizo is charged in an information of ingredients of the former, as
committing one crime. However, during the trial, alleged in the complaint or
information, constitute the
what was proven is another crime. What will latter. And an offense charged
happen now? Well, we will have to ask this is necessarily included in the
question – offense proved, when the
essential ingredients of the
former constitute or form part
Q: Is the offense proven included in the offense of those constituting the
charged or does the offense proven includes the latter. (5a)
offense charged?
Q: When does an offense include another, or greater responsibility includes the

when is it included in the other? lesser responsibility. Accessory is a
A: Section 5, Rule 120. lesser degree of participation.
This is not a case of a variance
For example, Mr. Tiamzon is charged with between the offense charged and the
MURDER and what is established is HOMICIDE. offense proved. Here, the accused was
Homicide is included in the crime of murder. The charged with murder and what was
elements are identical. The only difference is that established by evidence was also
there are no qualifying circumstances in murder. There is here no mistake in
homicide. Or, THEFT is included in ROBBERY. charging the proper offense. The
The only missing element in theft is violence or variance is in the participation of the
intimidation. Or, LESS PHYSICAL INJURY is accused in the commission of the
included in SERIOUS PHYSICAL INJURY. crime which is not covered by any
specific provision. What is covered by
In that case, the case will not be dismissed. Just the rules is when there is a mistake in
convict the accused of the crime proven which is charging the proper offense, or when
included in the crime charged. Such that if you there is a total mistake because the
are charged with murder, you can be convicted crime was never committed.
for homicide.
Q: What is the difference between
Q: Suppose the accused is charged with malversation and technical malversation?
homicide and what was proven is murder. So it is A: Although both crimes are committed by
the other way around. What is the correct public officers, malversation is punishable under
procedure? Article 217 of the RPC, whereas, technical
A: Convict him for the crime charged. Do not malversation is not referred as such in the RPC.
dismiss the case. Although the crime proved Technical malversation is denominated as Illegal
(murder) includes that which is charged Use of Public Funds under Article 220 of the RPC.
(homicide), a person cannot be convicted of a
more serious offense than that charged. The EXAMPLE: Technical malversation/Illegal
accused can only be convicted for homicide and Use of Public Fund is when a public officer uses
the qualifying circumstances of murder should be funds appropriated for a certain public purpose
treated only as an ordinary aggravating (let’s say, for the construction of a school
circumstances. The same is true with theft and building) for another public purpose (like
robbery. [c.f. discussions on Section 8, Rule 110] widening or cementing of roads.)
We will now go to some important cases. PARUNGAO vs.

SANDIGANBAYAN
VINO vs. PEOPLE OF THE 197 SCRA 173
PHILIPPINES
178 SCRA 626 FACTS: A public officer was
charged with technical malversation of
FACTS: Mr. Acelar is accused of public funds or property. The trial
murder as principal by direct court found that the crime committed
participation. After trial, it was is not technical malversation. It is
established that Mr. Acelar is only an more of malversation.
accessory.
ISSUE: May a person, charged
ISSUE: Can a person accused of with technical malversation under
murder as a principal may be Article 220 of the RPC, be found guilty
convicted as an accessory? of malversation under Article 217?
HELD: YES, a person charged with HELD: NO. He cannot be convicted

an offense as principal maybe of malversation because there is no
convicted as an accessory because the similarity between these two crimes.
“In malversation of public funds, the and went straight to the decision. Siguro the SC
offender misappropriates public funds would like to save time.
for his own personal use or allows any
other person to take such public funds Q: If a person is charged with rape, can he be
for the latter's personal use. In convicted of qualified seduction? Is qualified
technical malversation, the public seduction included in rape?
officer applies public funds under his A: It seems that the elements are different. In
administration not for his or another’s rape, there is no consent in the sexual intercourse.
personal use, but to a public use other But in seduction, there is consent although there
than that for which the fund was is abuse of authority, relationship or there is
appropriated by law or ordinance.” deceit. But in the 1993 case of
“Technical malversation is, PEOPLE vs. SUBING-SUBING
therefore, not included in nor does it 228 SCRA 168
necessarily include the crime of
malversation of public funds charged HELD: “A person charged with
in the information.” rape can be convicted of qualified
“The Sandiganbayan therefore seduction if the latter though not
erred in not ordering the filing of the alleged in the complaint, appears in
proper information against the the victim’s affidavit.”
petitioner, and in convicting him of
technical malversation in the original It seems that there is something wrong here;
case for malversation of public funds. the complaint says rape, but the victim’s affidavit
Ordinarily, the court’s recourse would says qualified seduction. However the SC says it
be to acquit the petitioner of the crime is fine. It is tantamount to the same thing: not
of illegal use of public funds without found in the complaint but found in the victim’s
prejudice, but subject to the laws on affidavit. This is another queer decision of the SC.
prescription, to the filing of a new
information for such offense.” PECHO vs. SANDIGANBAYAN
“Considering however that all the 238 SCRA 116
evidence given during the trial in the
malversation case is the same evidence FACTS: There was somebody who
that will be presented and evaluated imported highly taxable items.
to determine his guilt or innocence in Obviously, he had some connections
the technical malversation case in the with the Bureau of Customs. He
event that one is filed and in order to declared his items different form
spare the petitioner from the rigors which he brought, so the taxes are less.
and harshness compounded by The obvious intention it to cheat the
another trial, not to mention the government of the correct amount of
unnecessary burden on our taxes. He prepared the import entry
overloaded judicial system, the Court declaring false information or entries.
is acquitted the accused of the crime of However, the Collector of Customs
illegal use of public funds.” ordered a spot inspection. So the
attempt did not succeed.
But Justice Feliciano dissented, “Why question The importer, together with the
the procedure used for violation the law?” Anong Customs people were charged with
klaseng decision ito? Even before filing the attempted violation of the Anti-Graft
correct information, the SC already ruled that you Act. So, there was an attempt to cause
are innocent? According to him, the correct undue injury to the government by
procedure is not to dismiss both cases but to depriving it of its proper taxes.
acquit the accused of the original complaint of
technical malversation and require the filing of a ISSUE: Can a person charged with
new information charging the proper offense a crime punishable under a special law
(malversation). So this is one of the rare cases be found guilty instead of a felony in
where the SC decided not to be very technical the RPC? Can a crime under the RPC
be considered as included in the crime controls is not the designation but the
under a special law? description of the offense charged. The
crime of robbery with homicide is
HELD: There is no such thing as clearly alleged in the information
attempted violation of the Anti-Graft notwithstanding its erroneous caption.
Act. The attempted, frustrated and It is an offense necessarily included in
consummated stages only apply to that with which they were charged.”
felonies in the RPC. Under crimes
punishable by a special law, you only
punish the consummated stage. You SEC. 6. Promulgation of
judgment.– The judgment is
do not punish the attempted and promulgated by reading it in
frustrated stages unless the special law the presence of the accused and
says so. Since there was no injury any judge of the court in which
it was rendered. However, if
caused to the government due to the the conviction is for a light
time discovery, there was no violation offense, the judgment may be
of the Anti-Graft Act. pronounced in the presence of
his counsel or representative.
However, they made false entries, When the judge is absent or
thereby committing falsification. outside the province or city,
Therefore, they can be convicted of the judgment may be promulgated
by the clerk of court.
falsification of public or commercial If the accused is confined
documents. or detained in another province
or city, the judgment may be
promulgated by the executive
So in this case, it started as attempted violation judge of the Regional Trial
of the Anti-Graft Act (special law) and ended up Court having jurisdiction over
as a conviction for falsification under the RPC. A the place of confinement or
detention upon request of the
crime under the RPC was considered as included court which rendered the
in the crime malum prohibitum judgment. The court
promulgating the judgment shall
have authority to accept the
PEOPLE vs. VERZOSA notice of appeal and to approve
294 SCRA 466 [1998] the bail bond pending appeal;
provided, that if the decision
of the trial court convicting
FACTS: Appellants were charged the accused changed the nature
for violating PD 532 – Anti-Piracy And of the offense from non-
Anti-Highway Robbery Law Of 1974. bailable to bailable, the
application for bail can only
be filed and resolved by the
ISSUE: Can a person charged for appellate court.
The proper clerk of court
violating a special law be found guilty
shall give notice to the
for a crime of robbery with homicide accused personally or through
under the RPC? his bondsman or warden and
counsel, requiring him to be
present at the promulgation of
HELD: YES. What appellants the decision. If the accused
committed is the crime of robbery was tried in absentia because
he jumped bail or escaped from
with homicide, which is distinct from prison, the notice to him shall
the offense covered by P.D. 532 which be served at his last known
punishes, among others, address.
In case the accused fails to
indiscriminate highway robbery. appear at the scheduled date of
“Nonetheless, the designation of promulgation of judgment
the crime in the information as despite notice, the
promulgation shall be made by
“highway robbery with homicide recording the judgment in the
(Violation of PD 532)” does not criminal docket and serving him
preclude conviction of the appellants a copy thereof at his last
known address or thru his
of the crime of robbery with homicide counsel.
(Article 294 [1] of the RPC). In the If the judgment is for
interpretation of an information, what conviction and the failure of
the accused to appear was and among the cases submitted to him
without justifiable cause, he
shall lose the remedies for decision was the undecided case of
available in these rules the accused. So, he read the records
against the judgment and the and he wrote the decision on May 22.
court shall order his arrest.
Within fifteen (15) days from On June 9, Judge C was appointed
promulgation of judgment, presiding judge of Branch 10. He took
however, the accused may his oath of office the following day,
surrender and file a motion for
leave of court to avail of June 10, terminating automatically the
these remedies. He shall state designation of Judge B. With the
the reasons for his absence at appointment of Judge C, Judge B was
the scheduled promulgation and
if he proves that his absence only left with his original sala –
was for a justifiable cause, he Branch 3. On June 20, the deputy clerk
shall be allowed to avail of of court promulgated the decision of
said remedies within fifteen
(15) days from notice. (6a) Judge B made on May 22.
Alright. Promulgation is where the accused is ISSUE: Was the judgment penned
parusahan na or acquitted. It consists of the by Judge B, detailed to the vacant
reading of the decision in the presence of the branch of the court, but promulgated
accused. This is one stage of the criminal after the permanent judge has been
proceeding where the presence of the accused is duly appointed to the vacancy, valid?
generally required. The other instance is during
the arraignment. HELD: YES. It is valid. Judge B did
not retire. He is still in the SAME court
It is not necessary that the promulgation be although in another branch.
made before the very same judge who rendered “It is not necessary that Judge B be
the decision. Example: The RTC of Davao has the presiding judge of Branch 10 at the
many branches. Suppose the promulgation will time his decision was promulgated
be made in the RTC Branch 8, but on the date of since even after the expiration of his
promulgation, the judge thereof got sick. temporary designation at Branch 10 he
continued to be an incumbent of
Q: Can the decision of RTC Branch 8 be Branch 3. After all, the RTC is divided
promulgated before the judge of RTC Branch 9? into several branches, each of the
A: YES, a decision rendered by one branch of a branches is not a court distinct and
court may be promulgated before another branch separate from the others. Jurisdiction
of the same court precisely because it is the same is vested in the court, not in the
court although of different branches. Section 6, judges, so that when a complaint or
reads: “The judgment is promulgated xxx in the information is filed before one branch
presence of xxx ANY JUDGE of the court in which it or judge, jurisdiction does not attach
was rendered.” to said branch of the judge alone, to
the exclusion of the others.”
Do not confuse this on what happened in the “Indeed, it would have been
1993 case of different altogether if the judge whose
decision was promulgated had, prior
PEOPLE vs. CFI OF QUEZON to its promulgation, died, resigned,
BRANCH 10 retired, been dismissed, promoted to a
227 SCRA 457 higher court, or appointed to another
office with inconsistent functions.
FACTS: Accused was charged Then, he would no longer be an
criminally in the RTC Branch 10 incumbent member of a court of equal
presided by Judge A who tried the jurisdiction, and his decisions written
case but retired without deciding the thereafter would be invalid.”
case. Meanwhile, Judge B, presiding
judge of Branch 3 was designated
temporarily to take over Branch 10
Q: In places where there is only one branch of the presence of his COUNSEL or
the RTC, no other sala, who promulgates the REPRESENTATIVE.”
decision in case of the absence of the judge?
A: The clerk of court. Under Section 6, “When PEOPLE vs. PRADES
the judge is absent or outside the province or city, the July 30, 1998
judgment may be promulgated by the CLERK OF
COURT.” HELD: “In the Supreme Court and
the Court of Appeals, the judgment is
Q: Suppose the accused has several cases in promulgated by merely filing the
different places. Like for example he has a case in signed copy thereof with the Clerk of
Davao and another in Cebu. After the trial in Court who causes true copies of the
Davao, he was sent to Cebu for another trial. In same to be served upon the parties,
the meantime, tapos na yung sa Davao, hence the appearance of the accused is
promulgation na lang, but the accused is in Cebu. not even required there as his presence
What will happen if there will be a promulgation is necessary only in the promulgation
in the Davao case? of the judgments of trial courts.”
A: Under Section 6, the Davao court will send
the decision to the RTC Executive Judge of Cebu
and let it be promulgated there in the presence of Q: Is the presence of the complainant required
the accused. during the promulgation?
A: NO. There is no rule requiring a judge to
Now, a new clause is inserted in Section 6 notify the complainant of the date of
which provides that “if the decision of the trial court promulgation of judgment in criminal cases.
convicting the accused changed the nature of the What the Rules of Court particularly Section 6,
offense from non-bailable to bailable, the application for Rule 120 requires is that the promulgation be
bail can only be filed and resolved by the appellate made in the presence of the accused. (Ramirez vs.
court.” So in the previous example, if the accused Macandog, 144 SCRA 462)
is charged (in Davao) of murder but later
convicted for homicide, the RTC Executive Judge Q: Is the presence of the counsel of the
of Cebu has no power to entertain any accused required during the promulgation?
application for bail if the accused wanted to A: NO. The Rules of Court does not require
appeal the conviction. Such application can only the presence of counsel for the validity of the
be filed and resolved by the appellate court. This promulgation. The accused is not required to be
is similar to Section 5 of Rule 114 on Bail – present at the promulgation if the conviction is
for light offense, in which case, his counsel or
x x x x However, if the representative may appear in his behalf. But
decision of the trial court
convicting the accused changed definitely, in any case, the promulgation is valid
the nature of the offense from even the counsel does not appear thereat.
non-bailable to bailable, the (Pangilano vs. Nuevas, 152 SCRA 158)
application for bail can only
be filed with and resolved by
the appellate court. Q: What happens if the accused was tried in
absentia? Or before the promulgation he escaped
The above provision was taken and modified or jumped bail?
in the case of OMOSA vs. CA (266 SCRA 281 A: Under Section 6, the proper clerk of court
[1997]) shall give notice to the accused personally or
through his bondsman or warden and counsel,
Q: Is there such a thing as promulgation by requiring him to be present at the promulgation
proxy? of the decision. If the accused was tried in absentia
A: YES. A decision may be promulgated even because he jumped bail or escaped from prison,
without the presence of the accused but ONLY if the notice to him shall be served at his last known
the conviction is for a light offense. Generally, address.
promulgation is by personal appearance.
However under the Section 6, “if the conviction is In case the accused fails to appear at the
for a light offense, the judgment may be pronounced in scheduled date of promulgation of judgment
despite notice, the promulgation shall be made by aside before it becomes final
or before appeal is perfected.
recording the judgment in the criminal docket Except where the death penalty
and serving him a copy thereof at his last known is imposed, a judgment becomes
address or through his counsel. final after the lapse of the
period for perfecting an
appeal, or when the sentence
If the judgment is for conviction and the has been partially or totally
failure of the accused to appear was without satisfied or served, or when
the accused has waived in
justifiable cause, he shall lose the remedies writing his right to appeal, or
available in these rules against the judgment and has applied for probation. (7a)
the court shall order his arrest. Within fifteen (15)
days from promulgation of judgment, however, Q: May judgement of conviction be modified
the accused may surrender and file a motion for or set aside?
leave of court to avail of these remedies. He shall A: YES, for as long as:
state the reasons for his absence at the scheduled a. the judgement has not yet become
promulgation and if he proves that his absence final, or
was for a justifiable cause, he shall be allowed to b. appeal has not been perfected
avail of said remedies within fifteen (15) days
from notice. Take note that only a judgment of conviction
can be modified. A judgment of acquittal cannot
So there are six (6) types of promulgation of be modified. It is only upon motion of the
judgment under Section 6: accused.
1.) Ordinary judgment - promulgated by Q: How about upon motion of the

reading it in the presence of the prosecution?
accused and any judge of the court in A: It would seem under the rules, that it is
which it was rendered. This applies only the accused who is given that privilege of
only to trial courts (People vs. Prades, moving to modify the judgement and set it aside.
supra);
2.) Promulgation by the Clerk of Court - when There is an identical provision here that we
the judge is absent or outside the have already taken up before – about the
province or city; judgment of conviction which may be set aside
3.) Promulgation by the Executive Judge - If the before it becomes final. Read Section 5, Rule 116
accused is confined or detained in on Arraignment and Plea:
another province or city, the judgment
may be promulgated by the executive Withdrawal of improvident
plea of guilty. – At any time
judge of the Regional Trial Court before the judgment of
having jurisdiction over the place of conviction becomes final, the
confinement or detention upon court may permit an improvident
plea of guilty to be withdrawn
request of the court which rendered and be substituted by a plea of
the judgment; not guilty. (5)
4.) Promulgation in absentia - If the accused
was tried in absentia because he So even if you plead guilty, and it is not a
jumped bail or escaped from prison, capital offense and there is now a judgment
the notice to him shall be served at his sentencing you because of your plea, you can still
last known address; change your mind by changing your plea from
5.) Promulgation by recording the judgment – in guilty to not guilty. But you have to file a motion
case the accused fails to appear at the to set aside before the judgment of conviction
scheduled date of promulgation of becomes final.
judgment despite notice.
Q: When does the judgement in a criminal
case become final?
SEC. 7. Modification of A: It DEPENDS:
judgment. – A judgment of
conviction may, upon motion of
the accused, be modified or set
a. If it is a judgement of ACQUITTAL – I met this problem before where the judgment

immediately executory after convicted the accused and the trouble is that
promulgation of judgment because it judgment forgot to impose civil liability.
cannot be changed anymore. Nalimutan talaga! And there was no reservation
b. If it is a judgment for CONVICTION: or waiver so that the court should have imposed
1. After the lapse of the period for the civil aspect. The trouble is, after the
perfecting an appeal (2nd part of promulgation, the accused started to serve his
Section 7). So 15 days generally. sentence the following day.
EXCEPT when the DEATH
penalty is imposed. That is now But within the period of 15 days, we filed a
inserted in the new Rules because motion for reconsideration to complete the
even if the accused will not appeal, judgment because under Section 1 of this Rule,
there is an automatic review. So the imposition of the proper civil liability must be
the rule that when the period to included. And Section 2 also provides that the
appeal has expired, the judgment civil liability should be enforced unless the
will become final, will NOT apply enforcement of civil liability in a separate civil
in death penalty cases. However, action has been reserved or waived.
the lapse of the period to appeal
and no appeal is perfected, is not The judge acknowledged and admitted that
the only instance where the he overlooked the civil liability. He said that he is
judgment of conviction becomes ready to modify the judgment to include the civil
final; liability which he forgot. But the judge said, the
2. Even within the period to appeal, trouble is that he can no longer do it because the
that is when the sentence has been accused has already started serving his sentence
partially or totally satisfied or served. after promulgation, and from that moment, the
For example Charles has been judgment has become final. So he said, “how can
sentenced to 10 days of Arresto I amend my judgment kung final na?”
Menor and he has already served
it. Or Charles has been sentenced I told him, what became final was the
to pay a fine of P100 and he pays criminal aspect, the civil aspect cannot become
it. Wala na! Final na iyan! Because final until after the lapse of 15 days. Sabi ng
he has decided to serve his judge, “Are you sure? Can you sight a case which
sentence, it has become final. We says so? Because my researcher said na hindi
do not have to wait for 15 days; pwede.”
3. When the accused has waived in
writing his right to appeal; Yes, according to the SC in one case, “…as
4. When after conviction, the accused long as the period for appeal has not yet expired,
applies for probation (this is based even if the judgment has become final by service
on the probation law). When of sentence or waiver of appeal, the trial court
Charles applies for probation, he is may still modify its judgment as to its civil
waiving his right to appeal and he aspect.” So what is final is the criminal aspect and
is accepting the judgement of NOT the civil aspect. Because if the offended
conviction. party cannot claim civil liability kasi inunahan ng
accused ng pag-serve ng sentence, there is
Take note, however, that in these instances, something unfair there no.
when the judgment of conviction becomes final,
even before the lapse of 15 days, what the law SEC. 8. Entry of judgment. –
After a judgment has become
means is that what has become final is the final, it shall be entered in
criminal aspect. The civil aspect of the case does accordance with Rule 36. (8)
NOT become final after the lapse of 15 days. And
these instances do not apply when the penalty Rule 36 is entitled, “Judgments, Final Orders
imposed is death because of the automatic review and Entry Thereof.” While Rule 36 falls under the
of the Supreme Court. subject of Civil Procedure, some of its provisions
may be applied in criminal procedure.
documents that he notarized. The judge convicted

SEC. 9. Existing provisions him of falsification but merely as an accomplice.
governing suspension of
sentence, probation and parole Binabaan ba! But I think the intention of the judge
not affected by this Rule. – was to allow the lawyer to ask for probation. Pero
Nothing in this rule shall hindi nakuntento ang lawyer. He appealed to the
affect any existing provisions
in the laws governing CA. Naloko na! Nasamot gyud! The CA
suspension of sentence, convicted him as principal. And what was worse,
probation or parole. (9a) the CA said that since the accused was a lawyer,
let a copy of the decision be brought to the SC for
The suspension of sentence, probation or disbarment proceedings. Na disbarred pa! That’s
parole are governed by substantive law such as what happens for appealing!
the Indeterminate Sentence Law and the
Probation law. These laws have never been Alright, and take note, at any time before a
modified or affected by the Rules of Court. judgment of conviction become final. Now this is
one provision which you have to compare with
Rule 120, Section 7 on Modification of Judgment.
Rule 121
NEW TRIAL OR Q: Compare and Distinguish New Trial from
RECONSIDERATION Modification of Judgment.
A: Similarity: Both may be resorted to before
the judgment of conviction becomes final.
SECTION 1. New trial or Distinctions:

reconsideration. – At any time 1. In new trial, by the very nature of its
before a judgment of conviction purpose and what is to be done, both
becomes final, the court may,
on motion of the accused or at parties intervene; whereas, in
its own instance but with the modification of judgment, the court
consent of the accused, grant a moto propio may act provided the
new trial or reconsideration.
(1a) consent of the accused is required;
2. In new trial, if the motion is granted,
the original judgment is vacated and a
NEW TRIAL new judgement shall be rendered;
whereas, in modification of judgment,
Q: What is the effect of the filing of a motion the integrity of the decision already
for new trial on the double jeopardy rule? rendered is unaffected, except for the
A: An accused who files a motion for new trial proposed changes, although the entire
WAIVES the protection of double jeopardy, so decision may have to be rewritten.
that if the motion is granted, he can be tried and (People vs. Tamayo, 86 Phil. 209)
convicted of the graver offense charged in the
complaint or information. (Trono vs. U.S. 11 Phil.
726; Santos vs. People, 64 Phil. 10) Now, there is a new section in the New Rules
which created confusion – Rule 119 Section 24.
Actually, it is like an appeal eh – when an
accused appeals the judgment against him, he is SEC. 24. Reopening.– At any
waiving his right against double jeopardy. And it time before finality of the
judgment of conviction, the
has happened several times in the past where the judge may, motu proprio or upon
accused was charged with murder and convicted motion, with hearing in either
case, reopen the proceedings to
of homicide. He was not contented. When he filed avoid a miscarriage of justice.
an appeal, he was convicted of murder. The proceedings shall be
Sometimes, appeal can give you a worse terminated within thirty (30)
days from the order granting
situation. it. (n)
It happened here in Davao where a lawyer When do you make the motion for reopening?
was charged as a principal for falsification of At anytime before the judgment of conviction
becomes final? Pareho di ba! The language of the the accused applying the pro forma rule?
3 provisions are identical, motion for: (1) A: The SC ruled in the past that the pro forma
reopening of trial; (2) modification of judgment of rule in civil cases DOES NOT apply to criminal
conviction; and (3) new trial or reconsideration cases. In criminal cases, a general statement of the
grounds for new trial is sufficient. (People vs.
That is a new provision. So that when I Colmenares, 57 O.G. 3714) Even if you do not go
looked at the new Rules, talagang nalito ako. Ano into details because you expect your motion to be
ba itong reopening of trial. How is this different denied, but the filing will still interrupt the
from the others? period. It is too harsh if the remedy of appeal will
be removed from the accused simply because of a
That is why, during the seminar in Men Seng motion for new trial which is not prepared
last November 30 on the New Rules, I brought properly. So the pro forma rule will not apply in
this out, eh. Would somebody be kind enough to criminal cases. The filing of a motion for new trial
tell the difference between the three? Everything or reconsideration will always interrupt the
kasi is done before the judgment of conviction running of the period to appeal.
becomes final! Of course, nobody stood up there
to tell me the difference. Q: Alright, what are the grounds for new
trial?
Kaya nalito ako. Former Solicitor General A: Section 2:
Galvez, when he was here, told me that
“typographical error man yung Rule 119 ba, hindi SEC. 2. Grounds for a new
trial. – The court shall grant
man ganyan ang aming recommendation.” Why a new trial on any of the
nga naman will you reopen after judgment of following grounds:
conviction? Reopenning is done before judgment (a) That errors of law or
irregularities prejudicial to
is rendered. Ito naman, paglabas! Naloko na! It the substantial rights of the
created a lot of confusion. So if we believe accused have been committed
Galvez, the confusion is caused by a during the trial;
(b) That new and material
typographical error, which according to him is evidence has been discovered
not the language of the Rules submitted to the SC which the accused could not
and somebody tinkered with that provision. with reasonable diligence have
discovered and produced at the
trial and which if introduced
There is also a rule on New Trial in civil cases and admitted would probably
under Rule 37, you know the grounds: FAME, change the judgment.
NDE, etc. And there are some rules there to
follow such as the motion for new trial must be Q: What are the grounds for a new trial?
supported by affidavits of merits, or the motion A: Under Section, the following are the
for reconsideration must point out specifically the grounds:
error committed by the trial court, and the
portion of the decision not supported by the 1. Errors of law;
evidence. Otherwise, if you do not comply with
these requisites, what is the name of your Example: In one case, during the trial,
motion? PRO FORMA. Pro Forma, meaning the the trial court excluded a defense witness
filing of your motion for new trial or from testifying based on an erroneous
reconsideration will NOT interrupt the period to interpretation of the rules of evidence. The
appeal. That is the effect. judge disqualified him. But it turned out
that the witness was not disqualified. That
This is now the question: is an error of law. For all you know, if his
testimony will be given, the accused will
Q: Is there such a thing as pro forma motion for be acquitted. Therefore, a new trial should
new trial or reconsideration in criminal cases? be granted where he should be allowed to
Where your motion is obviously dilatory? Your testify. (People vs. Estefa, 86 Phil. 104)
grounds are too general, too vague, too
ambiguous? No affidavit of merits? And therefore 2. irregularities prejudicial to the substantial
rights of the accused;
if it is denied, there is no more right to appeal by
may later be repudiated. So courts are wary or

Example: In one case, the trial court reluctant to allow a new trial based on retracted
compelled the accused, over his objection, testimony.” (People vs. Clamor, July 1, 1991;
to submit to trial without the assistance of People vs. Soria, October 4, 1996)
his counsel. (People vs. Enriquez, L-4934,
November 28, 1951) If the accused is Q: Is there an EXCEPTION?
convicted because of such irregularity, A: YES, when it is made to appear that there is
this is a valid ground for new trial. no evidence sustaining the judgment of
Besides, why should the judge punish the conviction other than the testimony of the
accused? He should punish the lawyer. recanting witness. (U.S. vs. Dacir, 26 Phil. 503)
When aside from the testimonies of the retracting
3. Newly discovered evidence; this is similar to witness or witnesses there is no other evidence to
civil cases, newly discovered evidence. support a judgment of conviction, a new trial
The requisites are the same: may be granted. (People vs. Clamor, July 1, 1991)
a.) discovered after trial;
b.) it could not have been discovered
before trial even with the use of GOMEZ vs. IAC
reasonable diligence April 9, 1985
c.) and if introduced and admitted
would probably change the HELD: “It is conceded that the
decision State has the sovereign right to
prosecute criminal offenses under the
full control of the fiscal and that the
Q: May a new trial be granted on the ground dismissal of criminal cases by the
of loss of stenographic notes? execution of an affidavit of desistance
A: NO. The loss of stenographic notes after by the complainant is not looked upon
trial is NOT such an irregularity as would justify with favor. However, it is also true
a new trial. The remedy of the accused is to have that an affidavit of desistance may
the missing evidence reconstituted. (People vs. create serious doubts as to the liability
Castelo, L-10774, February 16, 1961) of the accused. At the very least, it
calls for a second hard look at the
There is a case, the trial is concluded, and the records of the case and the basis for
accused is convicted. Within the period of 15 days the judgment of conviction.
from promulgation, here comes the accused filing Jurisprudence on the effect of
a motion for new trial on the ground that the desistance notwithstanding, the
prosecution witness has executed an affidavit affidavit should not be peremptorily
recanting his testimony. The prosecution witness, dismissed as a useless scrap of paper.”
in effect, is saying that what he said during the
trial is not true.
Sometimes I have seen affidavits of
Q: May a new trial be granted on the ground recantation made by the complainant, alam mo
of loss of recantation of prosecution witnesses? kung anong nakalagay? – “I have lost interest in
A: As a GENERAL RULE, recantation is NOT continuing the case.” Pero tapos na, naka-testify na
a ground for new trial, otherwise there would siya. And on the basis of that, a new trial was
never be an end to criminal litigation. “The Court granted. Mali man iyan ba. Para mag-new trial,
has looked with disfavor upon retraction of dapat na sabihin niya, “Mali ang mga sinabi ko!” If
testimonies previously given in court. Thus, the you say that you are not interested, you are not
Court has ruled against the grant of a new trial on really repudiating what you said. That is what the
the basis of a retraction by a witness. The SC emphasized in the 1998 case of
rationale for the rule is obvious: Affidavits of
retraction can easily be secured from poor and
ignorant witnesses usually for a monetary PEOPLE vs. GARCIA
consideration. Recanted testimony is exceedingly 288 SCRA 382 [1998]
unreliable. There is always the probability that it
HELD: “To warrant a new trial, A: The SC said NO. The only thing that will
the affidavit of desistance must happen is that a new trial will be granted. But this
constitute a recantation and not a mere does not mean that the accused shall be acquitted.
withdrawal from the prosecution of When we say new trial, this means that the court
the case. The complainant's affidavit of should hear the testimony of the complainant
desistance did not constitute a again. BUT after testifying, the court may say,
recantation, because she did not deny “You say you were lying before and you are telling the
the truth of her complaint but merely truth now, but the court does not believe you because
sought to be allowed to withdraw and as far as the court is concerned, you were telling the
discontinue the case because she truth before and you are lying now.” Therefore the
wished to start life anew and live conviction stands. That is possible.
normally again. She never absolved or
exculpated the accused. In other Because some lawyers believe that if a new
words, a recantation of a prior trial is granted, sigurado na acquitted na ang
statement or testimony must accused. NO, the SC never guaranteed that. It will
necessarily renounce the said only be a ground for new trial without a
statement or testimony and withdraw guarantee whether the decision will be reversed
it formally and publicly.” or not. But in practice, lutong Macau lahat iyan.
Usapan nalang iyan between the lawyer and the
Parang ganito ba: “Yung sabi ko noon na ni-rape fiscal tapos kasali pa ang judge. That is what is
niya ako, di man na tinood ba, pumayag man ako ba!” happening, I know that.
Yan, baliktarin mo lahat ang sinabi mo. Hindi
yung: “I am not interested, kapoy na, ayoko na.” But if you follow the rules, there is no
Hindi pwede yan, that is not recantation because guarantee that if new trial is granted, the accused
you are not disowning what you said earlier. will be acquitted. There is no rule that says that
when a witness testifies twice, the court will
Now we will go to one last point. always believe the latest testimony. And the SC
has emphasized that in many cases, one of them
PROBLEM: Let us assume that Sheriff was is the case of
convicted purely because of the testimony of the
complainant, Thaddeus. Now, Thaddeus makes PEOPLE vs. CLAMOR
an affidavit stating that everything he said is not July 01, 1991
true. Meaning he is really recanting – binabawi
niya lahat ng sinabi niya. HELD: “Where a witness testifies
for the prosecution and retracts his or
Q: Is this a ground for new trial? her testimony and subsequently
A: Following jurisprudence, YES. It becomes testifies for the defense, the test in
now an exceptional case. There will be a new determining which testimony to
trial. believe is one of comparison coupled
with the application of the general
Q: What do you mean new trial? rules in evidence.” So you apply what
A: We will now restart the case. you know about evidence, about
credibility, appreciation of evidence.
Q: Who will testify? “The rule should be that a
A: Eh di si Thaddeus! – yung complainant, testimony solemnly given in court
who will be asked: “During the trial this is what should not be lightly set aside and that
you said, what are you saying now?” As he answers, before this can be done, both the
Thaddeus must say under oath that he lied before previous testimony and the
and this is the truth… [amen!] subsequent one be carefully
compared, the circumstances under
Q: After that, can the court say that the which each given carefully
accused is now acquitted because now Thaddeus scrutinized, the reasons or motives for
is telling the truth when before Thaddeus was not the change carefully scrutinized — in
telling the truth? Is this what will happen? other words, all the expedients
devised by man to determine the Summary Rules, a motion for reconsideration or

credibility of witnesses should be new trial of a final judgment is prohibited.
utilized to determine which of the
contradictory testimonies represents Q: Of course, what are the effects of granting
the truth.” the motion for new trial or reconsideration.
A: You have Section 6:
Of course, if the court believes that the second
testimony is accurate and the witness lied during SEC. 6. Effects of granting
a new trial or reconsideration.
the first, then acquit! But if the court believes that – The effects of granting a new
the witness was telling the truth in the first trial or reconsideration are
testimony, the conviction stands. the following:
(a) When a new trial is
granted on the ground of errors
So take note of that because these are of law or irregularities
misunderstood concepts eh. committed during the trial, all
the proceedings and evidence
affected thereby shall be set
aside and taken anew. The court
RECONSIDERATION may, in the interest of
justice, allow the introduction
of additional evidence.
(b) When a new trial is
Now, ano naman ang Reconsideration? The granted on the ground of newly-
discovered evidence, the
same as in civil cases. evidence already adduced shall
stand and the newly-discovered
SEC. 3. Ground for and such other evidence as the
reconsideration.– The court court may, in the interest of
shall grant reconsideration on justice, allow to be introduced
the ground of errors of law or shall be taken and considered
fact in the judgment, which together with the evidence
requires no further already in the record.
proceedings. (3a) (c) In all cases, when the
court grants new trial or
SEC. 4. Form of motion and reconsideration, the original
notice to the prosecutor. – The judgment shall be set aside or
motion for new trial or vacated and a new judgment
reconsideration shall be in rendered accordingly. (6a)
writing and shall state the
grounds on which it is based. Q: Will there be really a trial de novo or will
If based on a newly-discovered
evidence, the motion must be there just be a reopening of the trial to introduce
supported by affidavits of the newly discovered evidence?
witnesses by whom such evidence A: Under paragraph [c] which we already
is expected to be given or by
duly authenticated copies of discussed: “In all cases, when the court grants
documents which are proposed to new trial or reconsideration, the original
be introduced in evidence. judgment shall be set aside or vacated and a new
Notice of the motion for new
trial or reconsideration shall judgment rendered accordingly.”
be given to the prosecutor.
(4a) Q: Suppose after new trial, the court still finds
SEC. 5. Hearing on motion. the accused guilty?
– Where a motion for new trial A: There will be another judgment but
calls for resolution of any definitely the original judgment is already set
question of fact, the court may
hear evidence thereon by aside. When the court grants the motion, wala na
affidavits or otherwise. (5a) iyon! Regardless of whether the new judgment
will be the same or not.
Q: Is there an instance when a MOTION for
reconsideration or new trial is PROHIBITED? So with that, we are now through with
A: YES – when the case is tried in the MTC Rule 121.
under the Summary Rules. Bawal man iyan ba!
That’s a prohibited motion. Now you just take
note of that. Under Section 19[c] of the Revised
Rule 122 Q: Suppose the accused filed a Motion to

Quash the information on this or that ground and
APPEAL the court quashed the information but the
quashing is wrong. Can the prosecution appeal
SECTION 1. Who may appeal. – from the judgement of the court quashing the
Any party may appeal from a information?
judgment or final order, unless A: YES, because the elements of double
the accused will be placed in
double jeopardy. (2a) jeopardy would not be present. First, the
dismissal is with his express consent. And
Q: What is appeal? normally, a dismissal on a technicality is not
A: Appeal means a review of a decision of a considered as an acquittal. It is just a dismissal
lower court by a higher court. The higher court where there is no trial. So puwede.
will determine whether the decision of the lower
court is correct, just, etc. However, according to the Supreme Court, if
the Motion to Quash is based on the grounds of
Q: May an accused appeal from a judgement extinction of criminal liability, or double
of acquittal? jeopardy, then the prosecution cannot appeal
A: Normally, NO, because a judgement of because that would place the accused under
acquittal becomes final immediately upon double jeopardy. (Bandoy vs. CFI, 13 Phil. 157)
promulgation, so why will you appeal? And why
are you appealing if you are acquitted? You Q: How about an appeal by the prosecution
mean to tell me, you are praying to be convicted? because the penalty is wrong? The accused is
[sira!] However in the old case of convicted but the penalty is very low. The
penalty should be higher. So the prosecution is
PEOPLE vs. MENDOZA appealing for the purpose of correcting the
74 Phil. 119 penalty. It should be higher. Can the prosecution
do that?
FACTS: The accused was A: NO, because that will place the accused in
acquitted but the decision contained double jeopardy. (People vs. Cabarles, 54 O.G.
some harsh remarks against the 7051; People vs. Pomeroy, 97 Phil. 927; People vs.
accused which the accused feels are Flores, April 28, 1958) In other words, the error
irrelevant. So he decided to appeal will remain as it is.
from the judgement of acquittal, not
for the purpose of reversing it, but for HOWEVER, based on jurisprudence, which
the purpose of removing all those you already knew, even if the accused is
harsh, irrelevant remarks against him acquitted, but the judgement of acquittal is NULL
in the decision. and VOID, then the prosecution is allowed to
appeal because a void judgement does not give
HELD: The accused may appeal rise to double jeopardy. (People vs. Balisacan,
from a judgement of acquittal if it August 31, 1966)
contains statements that are irrelevant
and should be expunged from the Q: Now give an example of a case where the
record, for the purpose of striking out prosecution was allowed to appeal from a
those statements. judgement of acquittal, because the SC said the
acquittal is null and void.
Q: Can the People of the Philippines or the A: A good example is what happened in the
prosecution appeal in a criminal case? old case of People vs. Balisacan. This was already
A: It depends. If you read Section 1, it would asked in the BAR.
seem so, for as long as the accused will not be
placed in double jeopardy. BUT if the appeal of PEOPLE vs. BALISACAN
the prosecution will place the accused in double August 31, 1966
jeopardy, then he cannot appeal.
FACTS: The accused was charged
with a certain crime which is not a
capital offense. Maybe the penalty is jeopardy because of the void

only reclusion temporal or prision mayor. judgement.
And then during the arraignment, the
accused pleaded guilty. And sabi ng Q: Aside from the accused, People of the
accused: “Your Honor, may we be Philippines unless there is double jeopardy, who
allowed to present evidence to prove can appeal?
mitigating circumstance?” You are A: The offended party may appeal from any
guilty but you may still present judgement, order or ruling which is adverse to
evidence to prove mitigating his civil rights or to the civil liability, or on pure
circumstances for purposes of questions of law (e.g. whether or not the
reducing the penalty. Do you know information charges no offense). Provided, he
during the presentation of the has not waived or reserved the right to file a
evidence for the accused to prove separate civil action and the civil action is
mitigating, he attempted to prove self- deemed instituted, because the civil aspect is
defense? And the court, after trial, different from the criminal aspect. So the
said: self defense? After the hearing, offended party can appeal from that portion of
self defense pala. Okay, the accused is judgement adverse to his civil liability.
hereby acquitted. Nagreklamo ang
prosecution, “Why will you acquit him Q: Who else can appeal?
when he already pled guilty?” A: The bondsmen can appeal in case of
judgement against the bond in a forfeiture case.
ISSUE: Can the prosecution In bail, what happens when the accused failed to
appeal the judgment of acquittal in the appear? The court may order the confiscation or
case at bar? forfeiture of the bond. And if the bondsman
cannot satisfactorily explain why he failed to
HELD: YES, the prosecution can present the accused, then judgement may be
appeal because the judgement of rendered, holding the bondsman/bonding
acquittal is NULL and VOID. In the company liable. Can he appeal? Ah yes. He can
first place, the hearing is not for the appeal from the judgement making him liable for
purpose of proving his innocence. The his bond.
hearing is for the purpose only of
proving mitigating circumstance so Q: Who else can appeal?
why will you give him the benefit of A: The employer of the accused can also
justifying circumstance? Now what appeal from any order of the court making him
should be the correct procedure? You subsidiarily liable for the civil liability of the
just say mitigating and tapos you are accused under Article 103 of the Revised Penal
proving self defense? Pag ganyan, the Code.
court will say: “Okay, self defense ba?
The plea of guilty is hereby erased. Let’s So these are the people who can appeal in
go to trial.” Ayan. And then the criminal cases. Alright.
prosecution will present evidence.
But here, he pled guilty,
SEC. 2. Where to appeal. –
mitigating, he proved self defense, ako The appeal may be taken as
(prosecution) hindi. What happens follows:
now to the prosecution’s right to (a) To the Regional Trial
Court, in cases decided by the
prove the crime? Well at least the Metropolitan Trial Court,
prosecution should be given the right Municipal Trial Court in
to prove the crime before acquitting Cities, Municipal Trial Court,
or Municipal Circuit Trial
him immediately. So the SC said, the Court;
judgement of acquittal is null and (b) To the Court of Appeals
void. Therefore, the prosecution can or to the Supreme Court in the
proper cases provided by law,
appeal under Section 1 of Rule 122. It in cases decided by the
will not place the accused in double Regional Trial Court; and
(c) To the Supreme Court, in Q: How about MTC to RTC and then you are
cases decided by the Court of
Appeals. (1a) still convicted? Where will you appeal?
A: Court of Appeals by Petition for review
SEC. 3. How appeal taken.– (Rule 42).
(a) The appeal to the Regional
Trial Court, or to the Court of
Appeals in cases decided by the Q: Now how about a case tried by the RTC
Regional Trial Court in the (pursuant to its original jurisdiction)? The
exercise of its original
jurisdiction, shall be taken by accused is convicted, he wants to appeal to the
filing a notice of appeal with CA? What is the correct mode of appeal?
the court which rendered the A: Ordinary appeal by notice of appeal to the
judgment or final order
appealed from and by serving a Court of Appeals (Rule 41)
copy thereof upon the adverse
party. NOTE: If it is RTC to CA, pursuant to the
(b) The appeal to the Court
of Appeals in cases decided by appellate jurisdiction of the RTC, the mode of
the Regional Trial Court in the appeal is petition for review (Rule 42). If the case
exercise of its appellate was tried by the RTC pursuant to its original
jurisdiction shall be by
petition for review under Rule jurisdiction, it is ordinary appeal by notice of
42. appeal to the CA (Rule 41).
(c) The appeal to the
Supreme Court in cases where
the penalty imposed by the Q: However, suppose the penalty imposed by
Regional Trial Court is death, the RTC is death, what is the mode of appeal and
reclusion perpetua, or life
imprisonment, or where a lesser
where?
penalty is imposed but for A: To the Supreme Court, no need to appeal,
offenses committed on the same automatic review. Well, if you want to appeal,
occasion or which arose out of
the same occurrence that gave
okay lang. But even if you do not appeal, there is
rise to the more serious automatic review.
offense for which the penalty
of death, reclusion perpetua,
or life imprisonment is
Q: Suppose the RTC convicted the accused
imposed, shall be by filing a and sentenced him to reclusion perpetua or life
notice of appeal in accordance imprisonment (not Death), where will you
with paragraph (a) of this
section.
appeal?
(d) No notice of appeal is A: You appeal directly to the Supreme Court
necessary in cases where the (Ordinary Appeal, Rule 41) because under the
death penalty is imposed by the
Regional Trial Court. The same
Constitution, Supreme Court yan e.
shall be automatically reviewed
by the Supreme Court as Q: In such case, is there an automatic review?
provided in section 10 of this
Rule. A: NO! You must appeal.
Except as provided in the
last paragraph of section 13, That is the common error ‘no? Many lawyers
Rule 124, all other appeals to
the Supreme Court shall be by believe there is automatic review. No! Automatic
petition for review on review is only for death penalty. You are
certiorari under Rule 45. (3a) confused, sabi ko sa kanila noon. “Hindi ba,
Death sa SC yan, reclusion perpeuta sa SC din?”
Under the Constitution, yes. “O, di automatic
Now the next question is where to appeal and review!” No! The automatic review is for the
how to appeal. We have Section 2. You have death penalty only. Kapag perpetua, you must file
Section 3. Alright, let us try to outline. Actually your notice of appeal. Otherwise, madisgrasya
it’s the same in civil cases. ka niyan. The only similarity is the appeal is to
the Supreme Court. But there is no automatic
Q: From the MTC , where will you appeal? review for reclusion perpetua. You must file a
What is the mode of appeal? notice of appeal, that is what I said. Because na-
A: RTC, the mode of appeal is Ordinary confuse, eh. Kay alam nila sa Constitution,
appeal by a notice of appeal (Rule 40). Supreme Court, akala nila na automatic na rin.
GARCIA vs. PEOPLE

318 SCRA 434 [1999] Now let’s go to some interesting cases on
appeal. Take note, when an accused is sentenced
FACTS: The accused were by the RTC to death, he can appeal to the SC. But
sentenced to reclusion perpetua. Their even if he will not appeal, there will be an
lawyer believed that there is automatic automatic review. Now if he is sentenced to
review of the case so he did not do perpetua, he must appeal to the SC. Otherwise, the
anything. The prosecution now moves judgement will become final. However, there was
to enforce the judgment. The accused an interesting EXCEPTION which happened in
contended that there can be execution the case of
yet because of the automatic review.
PEOPLE vs. PANGANIBAN
ISSUE: Must the SC automatically 125 SCRA 595
review a trial court’s decision
convicting an accused of a capital FACTS: The accused was charged
offense and sentencing him to in three (3) informations for murder
reclusion perpetua? In other words, is and the three cases were tried
the accused not required to interpose together. And there were three (3)
an appeal from a trial court’s decision decisions. He was convicted in all the
sentencing him to reclusion perpetua three murders. In the three cases for
to SC because the latter’s review of the murder, he was sentenced to reclusion
sentence is automatic? perpetua in one and death for the other
two. He did not appeal. Now of
HELD: The issue is not new. We course, the cases where he was
have consistently ruled that it is only sentenced to death, akyat yan sa SC.
in cases where the penlty actually
imposed is death that the trial court ISSUE: How about the other case
must forward the records of the case where he was he was sentenced to
to the SC for automatic review of the reclusion perpetua? Should the SC also
conviction. review the other one?
As the petitioners did not file a
notice of appeal or otherwise indicate HELD: YES. Normally, hindi
their desire to appeal from the dapat eh, because he did not appeal.
decision convicting them of murder However, since these 3 cases were
and sentencing each of them to tried together, he committed murder
reclusion perpetua, the decision allegedly on the same occasion, We
became final and unappealable. might as well review also the other
one. So that is one instance where
nakalusot ‘no?
Q: Now, how about CA to SC? “Where a criminal case for murder
A: That is appeal by certiorari. That is where accused was sentenced to
paragraph [e] – Except as provided in the last perpetua, arose out of the same
paragraph, Section 13, Rule 124, all other appeals to occasion as two other criminal cases
the Supreme Court shall be by petition for review on for murder where the same accused
certiorari under Rule 45. “All other appeals,” Ano was sentenced to death in a joint
yang “all other appeals?” All other appeals, not decision. The former shall be deemed
mentioned in a, b, c, d. Ano yon? That is CA to appealed automatically jointly with
SC. Or, RTC direct to the Supreme Court on the latter two cases, even if the
questions of law only, because normally pag RTC, accused did not appeal from the court
dapat CA yan eh. But pure questions of law, sentence of reclusion perpetua in the
diretso na iyan. Or, from Sandiganbayan to the first case. It would be absurd to
Supreme Court. In case the Sandiganbayan require accused, under the peculiar
convicts an accused, the appeal is direct to the circumstances, to file a separate appeal
Supreme Court by petition for review. because the three criminal cases of
which he was convicted by the trial before Us on automatic review (that is

court in a single decision are so whether appeal was made or not), for
intertwined with each other, the three after all, this case is before Us on
cases having arisen on the same automatic review, accused are
occasion. acquitted on reasonable doubt.”
Although there was a justice who dissented, Again, there were four (4) justices who
“Hindi pwede yan.” He did not agree with the refused to concur. Ang kanila, of course there is
majority ruling. “We stick to the rule: kapag presentation of evidence, they argued, guilty.
perpetua, you appeal. If you will not, hindi Tapos ni-review natin but diskumpiyado tayo,
pwede.” So dissenting justice Aquino says, “We then just impose perpetua, huwag mong i-acquit!
cannot set aside that portion of the judgment Because they pled guilty na. But the majority,
imposing reclusion perpetua because it is not “We will acquit.” [palag?] Another interesting case
under review. It has long become final and executory on appeal is the 1996 case of
because there was no appeal from that portion of the
judgment. It should have been appealed in order MANUEL vs. ALFECHE, JR.
to be reviewed by this Court.” 259 SCRA 475
That is the general rule. You cannot expect an FACTS: The petitioner here, Delia
automatic review in a penalty of reclusion Manuel, filed a criminal case for libel
perpetua. Now another interesting case on death against the editor-in-chief, associate
penalty was the case of PEOPLE VS. ENCISO, editor and asst. editor of a regional
infra, which was also controversial decision. The newspaper in the Western Visayas,
Supreme Court was not unanimous, no. Alright, known as Panay News, which has
what happened here? considerable circulation in Panay
Island and throughout Western
PEOPLE vs. ENCISO Visayas. After trial, Judge Alfeche
160 SCRA 728 found the accused guilty, so all the
accused were convicted, but Manuel’s
FACTS: Two accused were claim for damages was dismissed.
charged with the crime of robbery Of course, both parties were
with homicide which is punishable by aggrieved! The accused were
death. They pleaded guilty. aggrieved because they were
Considering the gravity of the crime, convicted. The offended party,
the trial court ordered a mandatory Manuel, was also aggrieved because
presentation of evidence by the her claim for civil liability was
prosecutor. dismissed. So, the accused appealed
After hearing, the court found the conviction to the CA because that
them guilty beyond reasonable doubt is where the appeal should go. Si
and imposed the death penalty. They Manuel naman raised the correctness
did not appeal but the case was of the judgement depriving her of civil
elevated to the Supreme Court on liability, on pure question of law, to
automatic review. However, on the SC by way of appeal by certiorari.
appeal, the SC found the evidence
insufficient. ISSUE: Is that procedure correct?
Because nahati eh – the offended party
HELD: “Despite accused’s pleas of going to the SC and the other party to
guilty, We believe the pleas must not the CA. Magkagulo na yan eh because
be taken against them, for as clearly that would practically be splitting the
borne out by the evidence presented, appeal in two parts, ‘no?
said guilt has not actually been proved
beyond reasonable doubt. The fact that HELD: While normally on
they did not appeal is of no questions of law, from the RTC to the
consequence, for after all, this case is SC should be by petition for review.
Now, because of this situation, NUÑEZ vs. SANDIGANBAYAN

everybody should go to CA. That is 111 SCRA 433
the ruling in this case.
“In view of the factual FACTS: The challenge in this case
environment of this case, particularly is that the Sandiganbayan law, at least
that private respondents herein had on that portion on appeal, is
already taken an appeal to the Court unconstitutional because what is
of Appeals to question the trial court's violated is equal protection of the law.
judgment of conviction, the proper Because for example: An employee
remedy for petitioner is simply who is below Grade 27 is tried for
ordinary appeal to the said tribunal. Anti-Graft, where will case be filed? It
This is so because the award of should be filed in RTC. In case he is
moral and exemplary damages by the convicted, where will he appeal? He
trial court is inextricably linked to and will appeal in the Sandiganbayan.
necessarily dependent upon the And then from Sandiganbayan to SC.
factual finding of basis therefor, Or, in case he is a civilian, or the
namely, the existence of the crime of case is not Anti-Graft, that would be
libel. Inasmuch as the very same from the RTC to CA, and CA to SC. If
Decision herein assailed is already you notice in both examples, there are
pending review by the Court of two levels of appeals, eh. Now, if you
Appeals, there is a distinct possibility are tried in the Sandiganbayan and
that said court may, if the facts and the you are Grade 27 or higher and you
law warrant, reverse the trial court are convicted, you appeal will be to
and acquit the accused. In such event, the SC – so, isang level lang. Bakit siya
the appellate court's action could dalawa, ako isa lang? So, the law is
collide with a ruling finding merit in unconstitutional. It violates the equal
petitioner's contentions before this protection of the law. It is
Court. Such a situation would lead to discriminatory – that was the
absurdity and confusion in the challenge.
ultimate disposition of the case.
Obviously, this possibility must be HELD: The majority still sustained
avoided at all cost. This is at least the the validity. But there were three
reason for the rule against forum- senior members of the Supreme Court
shopping. Clearly, then, petitioner at that time who dissented. They
ought to have brought her challenge in believe that the law is unconstitutional
the Court of Appeals” although she is - bakit all the rest dalawa ang appeal,
appealing on pure questions of law. ako isa lang? Among those who
Nandoon na yong accused, eh. dissented were Justice Teehankee,
Sumama ka na lang doon. Let one Makasiar and Fernandez. These were
court decide the whole thing. very influential in the Supreme Court
and they were the ones who voted to
declare the law unconstitutional. But
APPEAL FROM THE SANDIGANBAYAN the majority said it is valid.
Q: If you are tried in the Sandiganbayan for, Starting with that, the SC adopted the policy
let’s say, graft, you are a grade 27 employee of the that if you are convicted by the Sandiganbayan
government or higher. If you are convicted, and you go to the Supreme Court on appeal by
where will you appeal? certiorari, we will carefully review the petition for
A: You appeal to the Supreme Court by way review because precisely, you are placed at a
of appeal by certiorari under Rule 45. disadvantage. You have only one level, one
appeal lang eh. And therefore, it is our obligation
Now, the constitutionality or validity of that to really review everything to see to it that you
procedure was attacked in the case of : were correctly convicted. I think that is what
happened to Imelda Marcos, no? So the court Q: Who is the appellee?

said in the case of A: People of the Philippines.
SEC. 6. When appeal to be
CESAR vs. SANDIGANBAYAN taken. – An appeal must be
134 SCRA 105 taken within fifteen (15) days
from promulgation of the
judgment or from notice of the
HELD: “Considering further that final order appealed from. This
no less than three senior members of period for perfecting an appeal
this Court, Justices Teehankee, shall be suspended from the
time a motion for new trial or
Makasiar, and Fernandez dissented reconsideration is filed until
from the Court's opinion in Nuñez vs. notice of the order overruling
Sandiganbayan partly because of the the motion has been served upon
the accused or his counsel at
absence of an intermediate appeal which time the balance of the
from Sandiganbayan decisions, where period begins to run. (6a)
questions of fact could be fully
threshed out, this Court has been most Q: When do you appeal?
consistent in carefully examining all A: Under Section 6, fifteen (15) days from
petitions seeking the review of the promulgation of the judgement or from notice of
special court's decisions to ascertain the order appealed from.
that the fundamental right to be
presumed innocent is not disregarded. Q: What happens if you filed a motion for
This task has added a heavy burden to new trial or reconsideration within the 15-day
the workload of this Court but it is a period?
task we steadfastly discharge.” A: The same as in civil cases – the filing of the
motion for reconsideration will suspend the
In other words, it has become cumbersome, running of the 15-day period to appeal until
no? Because we have to be very careful. We have notice of the order overruling the motion has
to be very meticulous. Kaya it has become an been served upon the accused or his counsel, at
added burden. We have no choice because the which time, the balance of the period begins to
accused is deprived of a second chance. This is run. That phrase was added in the new rules –
his last chance, so we have to be very sure that he “At which time, the balance of the period begins to
is really guilty. run.” That is only emphasizing what the rule
should be.
SEC. 4. Service of notice of So, the 15-day period does not start to run all
appeal. – If personal service
of the copy of the notice of over again. But you can still apply the balance if
appeal can not be made upon the the motion for reconsideration is denied. Now,
adverse party or his counsel, itong tanong ko:
service may be done by
registered mail or by
substituted service pursuant to Q: Suppose the motion for new trial is
sections 7 and 8 of Rule 13. granted. After new trial, convicted ka pa rin. So
(4a)
there will be a second judgement. What is your
SEC. 5. Waiver of notice. – period to appeal? Is it 15 days all over again? Or
The appellee may waive his we count the 15-day period from the first
right to a notice that an
appeal has been taken. The judgement, deducting the period during which
appellate court may, in its the motion for new trial was pending?
discretion, entertain an appeal A: The SC said, the counting of the 15-day
notwithstanding failure to give
such notice if the interests of period starts all over again from the time you
justice so require. (5a) received the second decision. (Obugan vs. People,
May 22, 1995)
Q: Who is the appellant?
A: If you are convicted in the lower court and Q: Now how do you reconcile that principle
you appealed, you are the appellant. with Section 6?
A: Section 6 is different because here, the then while it is still pending, there is still no
motion for new trial is denied but in the above order, I changed my mind, “Appeal na lang ako
example, the motion for new trial was granted. diretso. I will not anymore insist. Wala nang
But after new trial, convicted ka pa rin. So you mangyayari diyan.”
start counting the period to appeal all over again
from the time you received the second Q: Can I say, “I’m withdrawing my motion
judgement. And the SC cited Section 6[c] of Rule for reconsideration and I am instead substituting
121. it with a notice of appeal?”
A: YES, because that is your choice. You can
Rule 121, SEC. 6. Effects of abandon your motion for reconsideration,
granting a new trial or
reconsideration. – The effects withdraw it and then file a notice of appeal. No
of granting a new trial or problem about that.
reconsideration are the
following:
Q: But I will now reverse the situation: Within
x x x x x 15 days after promulgation, I will file an appeal.
And then after 1 or 2 or 3 days, “Teka muna. I
(c) In all cases, when the
court grants new trial or will file muna pala a motion for reconsideration.
reconsideration, the original Huwag muna yang appeal, baka sakali pala.” So
judgment shall be set aside or I say, “I’m withdrawing my notice of appeal, and
vacated and a new judgment
rendered accordingly. (6a) instead file a motion for reconsideration.” Can I
still do that?
Q: What is the effect of a motion for new trial A: In the case of PEOPLE VS. DE LA CRUZ
if it is granted? (201 SCRA 632), The SC said, NO, you cannot
A: Under Rule 121, the judgement is vacated. because the moment you file your notice of
Meaning, it doesn’t exist anymore. After new appeal, the appeal is already perfected and the
trial, convicted – all over, start na naman tayo. court has lost jurisdiction already over the case
That was the ruling in the case of: and can no longer change its own decision.
OBUGAN vs. PEOPLE So baliktad ‘no? – motion for reconsideration-

May 22, 1995 withdraw-appeal, pwede. Appeal, and then
withdraw – motion for reconsideration, hindi
HELD: If a motion for new trial is pwede! because the court has no more
granted, and after new trial, the jurisdiction over the case.
accused is still convicted, he has 15
days all over again to file an appeal Now let’s go to Section 11, one of the most
because under Rule 121, the previous important provisions. Let us go to Section 11, no.
judgement of conviction was already Effect of appeal by several accused.
vacated. It does not exist anymore.
SEC. 11. Effect of appeal by
“Thus the rule provides for the any of several accused. – (a)
interruption of the appeal period in An appeal taken by one or more
the event the motion for new trial or of several accused shall not
affect those who did not
reconsideration is overruled. The appeal, except insofar as the
implication is that if the motion for judgment of the appellate court
new trial is granted, as in the case at is favorable and applicable to
the latter.
bar, and a new judgment is rendered (b) The appeal of the
after the new trial was conducted, the offended party from the civil
period within which to perfect an aspect shall not affect the
criminal aspect of the judgment
appeal is fifteen days from receipt of or order appealed from.
the new judgment.” (c) Upon perfection of the
appeal, the execution of the
judgment or final order
Alright, let’s go to another issue. You have appealed from shall be stayed
two choices if you are convicted – 1) File a motion as to the appealing party.
for reconsideration. 2) If denied, you appeal. (11a)
Now, I will file a motion for reconsideration. And
paragraph [a]: An appeal taken by one or more of ISSUE: What happens now to the
several accused shall not affect those who did not conviction of Accused No. 2, who
appeal, except insofar as the judgment of the appellate escaped and did not appeal his
court is favorable and applicable to the latter. conviction?
Q: There are 2 accused. Both of them are HELD: It applies to the Accused
convicted. One will appeal, the other will not No. 2. “While, in effect, he committed
appeal. Suppose, the one who appealed, nanalo. an act of defiance of the law by
Will it favor then other accused who did not escaping, we are not without other
appeal? prior incidents where such
A: The GENERAL RULE is NO because if you undesirable conduct, which should
do not appeal, the judgement of conviction will not be condoned, has sometimes been
become final as far as you are concerned. ascribed to a sense of desperation of
However, there is an EXCEPTION – if the those who believe they are guiltless
ruling in the appeal also applies to you, you will but fear that they cannot prove their
be favored. innocence. While we castigate and
reprove his jumping bail and
For example: Two accused were convicted. remaining at large up to now, we have
One appealed, the other one did not appeal. On to concede, however, that our
the appeal sabi ng court, “No. The victim was not disquisition in this case is applicable
killed. He committed suicide.” Naloko na! Acquitted and favorable to him, hence he is
yun! “Paano na ako? Nakulong ako!” It will also affected by and shall benefit from the
benefit you because the judgement of the acquittal that we hand down in this
appellate court is also favorable and applicable to appeal.”
you. BUT if the ruling is only applicable to the
appealing accused, pasensya ka. So acquitted kahit na nag-jump bail, because
of this provision…So with that, he can come out
Like for example, both of you are convicted. openly. And the ruling happened again. The
You will not appeal, he will appeal. He will same thing happened in the 1996 case of PEOPLE
appeal tapos sabi niya, “Minor man ako! Minor!” VS. PEREZ (263 SCRA 206). And one of the latest
Tapos sabi ng appellate court , “Ah, minor! He did where this happened again is the 1998 case of
not act with discernment. Ok! Acquitted!” So, paano
ka? Maiwan ka, hindi ka man minor! The defense PEOPLE vs. RUGAY
of minority is not applicable to you. 291 SCRA 692
Now, this provision has been applied already HELD: “Finally, the Court notes
several times. Among the first cases where this that the conviction of appellant's co-
was applied was the case of: accused, Arvil Villalon, rests on the
same evidence used to convict
PEOPLE vs. FERNANDEZ appellant. The Court finds that such
186 SCRA 830 evidence does not prove beyond
reasonable doubt either of the
FACTS: There were two accused accused's guilt. The acquittal of
charged for selling marijuana, under Ricolito Rugay should also benefit
the Dangerous Drugs Act. Both of Arvil Villalon, the withdrawal of the
them were convicted. Accused No. 1 latter's appeal notwithstanding.”
appealed, but Accused No. 2 jumped
bail and remained at large. On appeal, Now let’s go to [b]:
the Supreme Court acquitted Accused
No. 1 because of material (b) The appeal of the
offended party from the civil
discrepancies in the testimony of the aspect shall not affect the
star prosecution witness. criminal aspect of the judgment
or order appealed from.
This is what I told you earlier that the civil to the higher court, the Court of
aspect is different from the criminal aspect. It is Appeals.
possible that the accused is acquitted but the 3. Once you appeal, the entire case is
offended party may appeal insofar as the civil open for review and you are waiving
aspect of the case is concerned. It shall not affect your right to double jeopardy.
the criminal aspect of the judgement or order
appealed from. That’s what I told you. After appeal, baka
mapasama ka pa. Ah, it happened several times. I
Q: Normally, who will handle the appeal in already mentioned what happened before,
criminal cases? Falsification? The lawyer was sentenced to
A: Solicitor-General. The Solicitor-General Falsification as an accomplice. Appeal-appeal pa,
handles the appeal. so naloko na. Because it was originally charged
to the principal. Na-disbar pa! And there was a
BUT the SC said that if the appeal is only case where the accused was charged with
about the offended party, walang pakialam ang murder, after trial, he was convicted of homicide,
gobyerno diyan! Let the offended party handle hindi pa nakuntento. Nag-appeal pa. Ah! nabalik
his own appeal and let him get his own lawyer to sa murder! Because there is no more double
handle the appeal. So the Court said in the case of jeopardy. You are now waiving everything and
the whole case is now open for review.
BERNARDO vs. COURT OF
APPEALS Q: Now finally, can you withdraw an appeal?
190 SCRA 63 A: YES. The procedure for withdrawing an
appeal is found in Section 12:
HELD: “The Court has clearly
settled the matter by ruling that SEC. 12. Withdrawal of
appeal- Notwithstanding
despite a judgment of acquittal, the perfection of the appeal, the
offended party, private respondent in Regional Trial Court,
the case at bar, may appeal, only Metropolitan Trial Court,
insofar as the civil aspect of the case is Cities, Municipal Trial Court,
concerned.” or Municipal Circuit Trial
“Such an appeal dispenses with Court, as the case may be, may
allow the appellant to withdraw
the authority and representation of his appeal before the record
both the fiscal and the Solicitor has been forwarded by the clerk
General, considering that the subject of court to the proper
appellate court as provided in
matter of the action involves solely the section 8, in which case the
interests of the offended party and judgment shall become final.
hence, no longer concerns the State.” The Regional Trial Court may
also, in its discretion, allw
the appellant from the judgment
Let’s go to paragraph [c]: of a Metropolitan Trial Court,
(c) Upon perfection of the Cities, Municipal Trial Court,
appeal, the execution of the or Municipal Circuit Trial
judgment or final order Court to withdraw his appeal,
appealed from shall be stayed provided a motion to that
as to the appealing party. effect is filed before
(11a) rendition of the judgment in
the case on appeal, in which
case the judgment of the court
Q: What are the effects of a perfected appeal? of origin shall become final
A: The following are the effects: parang sa and the case shall be remanded
to the latter court for
civil procedure din execution of the judgment.
(12a)
1. The execution of the sentence is
stayed; Now there is one interesting case about
2. The trial court loses jurisdiction over withdrawing an appeal. Definitely, withdrawal
the case because it is now transferred of appeal is your prerogative, eh. If you are
convicted and you appeal and then later on you frustrate a possible adverse decision
withdraw, that is your prerogative. You are now on his appeal. That is what exactly
accepting the judgement of conviction. Now let’s happened in this case. Withdrawal of
see what happened in the 1996 case of the appeal at that stage would allow
an apparent error and possibly an
TEODORO vs. COURT OF injustice to go uncorrected. Justice is
APPEALS due as much to the State — the People
258 SCRA 643 of the Philippines — as to the accused.
FACTS: Amado Teodoro was So even if he is accepting already the lower

charged with the crime of grave penalty, sabi ng Court, hindi na. Nag-file na
slander by deed before the MTC of yung kabila ng memorandum, eh. So, tuloy na. I
Mandaluyong. He was convicted of do not know what happened after that but
the lesser offense of simple slander by definitely, he was not allowed anymore to
deed and sentenced to pay a fine of withdraw the appeal anymore. Yaan! That is the
P110. So mababa. Hindi pa siya risk nga of appealing, sometimes.
kuntento, Teodoro appealed to the
RTC. Of course, what is the procedure SEC. 13. Appointment of
counsel de oficio for accused
pag nasa RTC na? – both parties will on appeal - It shall be the
prepare a memorandum. duty of the clerk of court of
After Teodoro’s lawyer had the trial court, upon filing of
a notice of appeal to ascertain
received a copy of the appeal from the appellant, if confined
memorandum of the prosecution in prison, whether he desies
where the prosecution urged that the Regional Trial Court, Court
of Appeals or the Supreme Court
Teodoro be held guilty of grave to appoint a counsel de oficio
slander by deed, not just simple to defend him and to transmit
slander as the MTC, pagbasa niya ng with the record on a form to be
prepared by the clerk of court
memorandum ng prosecution, “Naku, of the appellate court, a
delikado pala ako dito! Basig masamot ba! certificate of compliance with
So, okay na lang yong simple slander. this duty and of the response
of the appellate to his
Bayad na lang ako ng fine of P110”. inquiry. (13a)
So he filed a motion to withdraw
his appeal. Kay nakita niya, delikado Now, itong Section 13, it just says about
pala e! Baka mabalik sa dati, sa appointment of counsel de oficio for accused on
original ba. So he is now accepting the appeal.
decision. He is now withdrawing his
appeal. Apparently, he realized that Let’s say you are convicted here. Appeal ka sa
his appeal was likely to result in the SC, bigyan ka man ng abogado ba by the SC if
imposition of a higher penalty and he you have no counsel. One of the practitioners in
wanted to avoid that possibility. Manila will be appointed. I’ve seen appeal briefs
filed by counsel de oficio on appeal. And
HELD: Under Section 12 of Rule sometimes, the SC gets big lawyers as counsel the
122, the withdrawal of appeal is not a oficio. Yes, I have seen their briefs . Although, I
matter of right, but a matter which lies believe that these big lawyers in Manila who are
in the sound discretion of the court appointed as counsel, mga death penalty cases.
and the appellate court. After the They are the ones who prepare the brief, they are
parties in this case had been required the ones who sign. But I think an associate in
to file their memoranda and the their law office will help them especially when
memorandum of the prosecution had they are not handling criminal cases. But you can
been filed and a copy served on see, sometimes they are more effective than a
appellant, it was too late for Teodoro counsel de parte in the provinces. I’ve seen it,
to move for the withdrawal of the beautifully worded, ha. Ganda na pagkagawa ng
appeal. It was apparent that mga brief.
petitioner's motion was intended to
Now one interesting case about appointment should never equivocate or cogitate in
of counsel de oficio, is what happened in the 1991 order to favor one party over
case of another.”
PEOPLE vs. RIO So, sabi ng SC, your desire to withdraw

201 SCRA 702 because of poverty, denied! We will continue. We
will appoint a lawyer for you. We will get the
FACTS: The accused was best. So, tuloy ang kaso. And then, after
sentenced to reclusion perpetua. He was reviewing the evidence, sabi ng Court: “You are
detained at the National Penitentiary. guilty!” [ha!ha!ha!] Guilty pa rin! But definitely, you
He appealed. And then later, he wrote will not be allowed to withdraw. Yes, he was still
a letter to the SC, “I am withdrawing found guilty in the case of Rio. Akala niya siguro,
my appeal. I am no longer continuing paboran siya ng SC because he is poor. Ah,
my appeal because I cannot afford it. hinde. You are still guilty.
Poverty prevents me from pursuing
the appeal.” The SC got intrigued, ‘no? Rule 123
The SC issued an order directing the
clerk of Court to go to the National
PROCEDURE IN THE
Penitentiary and look for this accused MUNICIPAL TRIAL COURTS
to confirm if he did really send this
letter to the Supreme Court.
So hinanap siya. Nakita. You
wrote this letter? “Yes.” You affirm SECTION 1. Uniform
Procedure. – The procedure to
what you say? “Yes. Hindi ko kaya. be observed in the Metropolitan
Pobre ako, eh. I cannot afford the Trial Courts, Municipal Trial
appeal.” So, siya talaga. He is Courts and Municipal Circuit
Trial Courts shall be the same
withdrawing his appeal because of as in the Regional Trial
poverty. And the SC came up with this Courts, except where a
decision: particular provision applies
only to either of said courts
and in criminal cases governed
HELD: “The right to a counsel de by the Revised Rule on Summary
Procedure. (1a)
oficio does not cease upon the
conviction of an accused by a trial
court. It continues, even during Rule 123 simply says that the procedure to be
appeal, such that the duty of the court observed in the MTC, MTCC and MCTC shall be
to assign a counsel de oficio persists the same as in the RTC. So, all the rules that we
where an accused interposes an intent took up applies to both courts EXCEPT:
to appeal. Even in a case, such as the 1.) where a particular provision applies only
one at bar, where the accused had to either of said courts; and
signified his intent to withdraw his 2.) in criminal cases governed by the Revised
appeal, the court is required to inquire Rules on Summary Procedure.
into the reason for the withdrawal.
Where it finds the sole reason for the In the first exception, there are certain
withdrawal to be poverty, as in this provisions that are applicable only to the RTC.
case, the court must assign a counsel Example is the provision on bail – how to apply
de oficio, for despite such withdrawal, for bail. If you are denied bail, and you are
the duty to protect the rights of the charged with a capital offense, there will be a
accused subsists and perhaps, with hearing to determine whether the evidence of
greater reason. After all, “those who guilt is strong or not. Hindi man yan mag-apply
have less in life must have more in law.” sa MTC ba because the crime carries the penalty
Justice should never be limited to of death which is exclusive only for the RTC.
those who have the means. It is for
everyone, whether rich or poor. Its The second exception is, you do not apply the
scales should always be balanced and regular rules if the case is governed by the
Revised Rules on Summary Procedure. And that the case is covered by the Rules on Summary
is what we are going to review now. Procedure. If it is any crime, you file it in the
fiscal’s office, the running of the prescriptive
Q: What criminal cases should be tried based period is interrupted. But if it is covered by the
on the Revised Rules on Summary Rules? Summary Rules, the period continues. It must be
A: The following: the filing of the case in court which will interrupt.
1.) Violations of traffic laws, rules and That is the ruling in Zaldivia.
regulations;
2.) Violations of the rental law; That impression in Zaldivia was clarified in
3.) Violations of municipal or city the 1998 case of REODICA vs. CA (292 SCRA 87)
ordinances; and where the SC said that even if the case is covered
4.) All other criminal cases where the by the Summary Rules for as long as it is a felony
penalty prescribed by law for the under the RPC, the filing in the fiscal’s office is
offense charged does not exceed six (6) sufficient to interrupt the running of the
months imprisonment or a fine of one prescriptive period.
thousand pesos (P1,000.00) or both,
irrespective of other imposable But according to Zaldivia, if it is covered by
penalties, accessory or otherwise, or of the Summary rules, the filing in the fiscal’s office
the civil liability arising therefrom; will not interrupt. But according to the SC in the
5.) however, that in offenses involving case of Reodica, NO! because Zaldivia involves a
damage to property through criminal violation of municipal or city ordinance.
negligence, said Rule shall govern Therefore, if it is a violation of an ordinance, the
where the imposable fine does not filing in the fiscal’s office does not interrupt the
exceed ten thousand pesos running of the prescriptive period because the
(P10,000.00). So, if it is above P10,000 it law on prescription for crimes punishable by a
is still MTC but you follow the regular special law is governed not by the RPC, but by
rules. Act 3326 which is very clear that it is the filing in
court which will interrupt the prescriptive period
for crimes punishable by special laws. Pero kapag
Q: What happens if there are 2 cases which felony, we will still apply the general rule that the
are interrelated or the charges are interrelated for filing in the fiscal’s office is sufficient to interrupt
they arose from the same incident? Like for even if such felony is covered by the Summary
example: One case is penalized by fine and Rules.
another is penalized by 4 years imprisonment.
Once crime is covered by Summary Rules, the Now, let’s go to the provisions of the
other is covered by the regular rule. Can they be Summary Rules concerning criminal cases.
mixed?
A: Where there is a joint trial of two criminal SEC. 11. How commenced. –
The filing of criminal cases
cases, one under the summary rules and the falling within the scope of
other one is under the regular rules, we follow this Rule shall be either by
the regular rules. Under the last paragraph of complaint or information.
Provided, however, that in
Section of the Summary Rules, “These rules shall Metropolitan Manila and in
not apply to a criminal case where the offense charged chartered cities, such cases
is necessarily related to another criminal case subject shall be commenced only by
information, except when the
to another procedure.” offense cannot be prosecuted de
oficio.
One of the important principles to remember The complaint or information
shall be accompanied by the
here is the case of Zaldivia and Reodica on when is affidavits of the complainant
the running of period of prescription for a crime and of his witnesses in such
deemed interrupted. The ruling in ZALDIVIA vs. number of copies as there are
accused plus two (2) copies for
REYES (211 SCRA 277) created the impression the court’s files. If this
that as a general rule, the filing of the case in the requirement is not complied
prosecutor’s office is sufficient to interrupt the with within five (5) days from
date of filing, the cases may
running of the prescriptive period except when be dismissed.
Q: How is a case covered by the Summary

Rules commenced? Now, if you have a surprise witness and you
A: Affidavit is included, affidavit of want to introduce him because his testimony is
complainant, his witnesses shall be included and very important, the remedy is to file a motion to
then the court may dismiss the case outright present additional evidence. The last paragraph
under Section 12 [a] and [b], otherwise if there is a of Section 15 gives you the authority to manifest
case, the accused will be sent a copy of the during the preliminary conference that you are
affidavit and then he is given 10 days to submit presenting other witnesses, and you are now
also his own affidavit. submitting their affidavits in order that you will
not be barred from presenting them.
Then there will be an arraignment under
Section 13; Preliminary conference under Section SEC. 16. Arrest of accused. The
court shall not order the arrest of
14. And Section 15 is important – during the trial, the accused except for failure to
there is NO DIRECT EXAMINATION. The appear whenever required. Release
affidavit already serves as your direct testimony. of the person arrested shall either
be on bail or on recognizance by
So puro cross-examination na lang. Diretso! So, it responsible citizen acceptable to
is shortened ‘no? Rather than asking the witness the court.
one by one to tell the story in the affidavit, yang
affidavit na mismo. That will serve as the direct Section 16 is also important. As a rule, there is
testimony. Iko-cross-examine na lang. no warrant of arrest if you are tried under the
Summary Rules. You are just notified about the
But there is an important rule here – a witness case. However, if you are notified about the case
who has not submitted any affidavit cannot and you will not appear, that is the time when
testify. So in order to qualify as a witness, you you will be arrested because of “except for failure
must have submitted an affidavit beforehand. to appear whenever required” in which case you
The EXCEPTION is the 2nd paragraph of Section must post bail if you are under arrest or on
15 – except when the witness is a rebuttal witness recognizance by a responsible citizen acceptable
or a surrebuttal witness. This is because how can to the court. This is one of the cases where
you submit a rebuttal affidavit ahead? You do recognizance is allowed. But for as long as you
not even know what to rebut. ANOTHER appear in court, there is no warrant to be issued.
EXCEPTION is cited by the SC in the case of
Q: Now, what are the PROHIBITED
BALAYON, JR. vs. OCAMPO documents, motions, or pleadings under the
218 SCRA 13 Summary Rules?
A: The following (Under Section 19):
NOTE: Normally, in physical
injuries cases, the medical doctor is 1.) Motion to quash except when your
required to testify. ground is
FACTS: In this case, the doctor a.) lack of jurisdiction over the
was subpoenaed to testify and the subject matter; or
defense objected because they said b.) failure to comply with the
that the doctor has no affidavit and Barangay Conciliation;
under the rules, no person may testify 2.) Motion for bill of particulars;
without submitting an affidavit. 3.) Motion for new trial, or for
reconsideration of a judgment, or for
HELD: When the doctor is called reopening of trial; your remedy here
upon to testify based on the medical is appeal;
certificate, the rule as to the prior 4.) Petition for relief from judgement;
submission of affidavit does not apply. 5.) Motion for extension of time to file an
This also applies to the Register of affidavit;
Deeds or the Provincial Assessors in 6.) Memoranda;
connection with official documents
issued by their office.
7.) Petition for certiorari, mandamus, or thirty (30) days from receipt
of the brief of the appellant,
prohibition against any interlocutory the appellee shall file seven
orders issued by the court; (7) copies of the brief of the
8.) Motion to declare the defendant in appellee with the clerk of
court which shall be
default; accompanied by proof of service
9.) Dilatory motions postponements; of two (2) copies thereof upon
10.) Reply; the appellant.
Within twenty (20) days from
11.) Third-party complaints; receipt of the brief of the
12.) Interventions; appellee, the appellant may
file a reply brief traversing
matters raised in the former
So that will be all on Summary Procedure. but not covered in the brief of
the appellant. (4a)
Rule 124 SEC. 5. Extension of time
PROCEDURE IN THE for filing briefs.– Extension
of time for the filing of
COURT OF APPEALS briefs will not be allowed
except for good and sufficient
cause and only if the motion
SECTION 1. Title of the for extension is filed before
case. – In all criminal cases the expiration of the time
appealed to the Court of sought to be extended. (5a)
Appeals, the party appealing
the case shall be called the SEC. 6. Form of briefs.–
"appellant" and the adverse Briefs shall either be printed,
party the "appellee," but the encoded or typewritten in
title of the case shall remain double space on legal size good
as it was in the court of quality unglazed paper, 330 mm.
origin. (1a) in length by 216 mm. in width.
(6a)
SEC. 2. Appointment of
counsel de oficio for the SEC. 7. Contents of brief. –
accused. – If it appears from The briefs in criminal cases
the record of the case as shall have the same contents as
transmitted that (a) the provided in sections 13 and 14
accused is confined in prison, of Rule 44. A certified true
(b) is without counsel de parte copy of the decision or final
on appeal, or (c) has signed order appealed from shall be
the notice of appeal himself, appended to the brief of the
ask the clerk of court of the appellant. (7a)
Court of Appeals shall
designate a counsel de oficio.
An appellant who is not The appellant is the tem applied to the party
confined in prison may, upon making the appeal. Appellee is the term applied to
request, be assigned a counsel
de oficio within ten (10) days the party in whose favor the decision is rendered.
from receipt of the notice to
file brief and he establishes Procedure in the CA. Halos pareho man din.
his right thereto. (2a)
It is almost similar in civil cases. The accused will
SEC. 3. When brief for be required to file his brief (appellant’s brief), to
appellant to be filed. – Within be followed by the appellee’s brief with the
thirty (30) days from receipt
by the appellant or his counsel government, and if possible appellant’s reply
of the notice from the clerk of brief.
court of the Court of Appeals
that the evidence, oral and
documentary, is already Q: Now, who prepares the appellee’s brief?
attached to the record, the A: The Solicitor General. This is their
appellant shall file seven (7)
copies of his brief with the
mastery.
clerk of court which shall be
accompanied by proof of service Normally, the Solicitor General files the brief,
of two (2) copies thereof upon
the appellee.(3a)
maiksi lang masyado. I’ve seen a lot of briefs for
the People of the Philippines. If I can see a brief
SEC. 4. When brief for which does not exceed 15 pages, you are very
appellee to be filed; reply
brief of the appellant.– Within
lucky. Everything is there. Everything is
condensed. Yet I wonder it takes them several Sabi ko, in the CA or SC, it is not the length of
extensions to file. I don’t think nahirapan silang your pleadings which matters but the substance.
mag-file nun. Tamad lang siguro ba. Kaya galit Yan! Alright, let’s go to Section 8.
man ang SC. There are so many SC resolutions
berating the Solicitor General for asking for a lot SEC. 8. Dismissal of appeal
for abandonment or failure to
of extensions for a very simple matter. They prosecute. – The Court of
always claim pressure of work. That’s why the Appeals may, upon motion of the
SC wants also to control the number of extensions appellee or motu proprio and
with notice to the appellant in
of time. either case, dismiss the appeal
if the appellant fails to file
I have seen a brief prepared by the Solicitor his brief within the time
prescribed by this Rule, except
General in a criminal case. From 45 days, where the appellant is
extension, extension, extension… umabot na represented by a counsel de
siguro ng 150 days – mga 5 months! Finally, na- oficio.
file. When I look at it, 8 pages lang. I was looking x x x x x
at the brief and then for eevry assignment of error
by the appellant, sinagot niya ng mga dalawang If the appellant will not file his appellant’s
(2) paragraphs lang. And when I look at the brief, the case is dismissed – same in civil cases –
appellant’s brief, ka-kapal masyado! There are except where the appellant is represented by
so many things discussed – why the court is wrong, counsel de oficio because the counsel de oficio is
why the court made an error. Sinagot ng Solicitor really a court-appointed lawyer. So why will the
General, tag 2 or 3 paragraphs lang! accused suffer if the court-designated lawyer is
negligent? But if it is a lawyer of your own choice
So the appellant’s brief, mga 30 pages or who failed to file the brief, then you suffer the
more. Sinagot ng Solicitor General in 8 pages consequence.
only. And then after several years I asked the
defense counsel kung tapos na ba ang kaso mo. O Although we are talking of criminal cases, if
ano man? “Affirmed.” Meaning, the conviction you based it on the guidelines, it would seem that
was affirmed. That is where you will see that in when the CA dismisses the appeal, it should give
order to win a case on appeal, IT IS NOT THE a warning to the accused. This is what the SC said
LENGTH OF THE BRIEF WHICH MATTERS. IT in the case of
IS THE SUBSTANCE. Substance is more FAROLAN vs. COURT OF
important than length. The CA is not impressed APPEALS
on haba. Mainis pa sila niyan because they have February 07, 1995
no time to read. This is a very good lesson: THE
LONGER IS YOUR PLEADING, THE LESS HELD: “Under Sec. 8 of Rule 124,
CHANCES YOU HAVE. That’s how I looked at the failure to file the appellant's brief
it. Even the SC, that’s how they behave. on time may cause the dismissal of the
appeal, upon either the motion of the
And there was somebody two weeks ago, appellee or on the own motion of the
who was asked to prepare a COMMENT. The CA appellate court, provided that notice
required that lawyer to comment. “COMMENT… must be furnished to the appellant to
Pwede na ba ito?” Ano ba yang comment mo? show cause why his appeal should not
Gaano kahaba? “Mga 15 pages.” Eh mahaba eh! be dismissed.” At least give him a
Bawat comment niya may citations of authorities. warning.
Sige, paiiksiin natin ha? Tinanggal ko… kadami “But the exception to this rule has
kong tinanggal. Umabot ng 3 pages na lang. been clearly stated — i.e. when the
“Paano yung iba?” Look, when the CA says, “The appellant is represented by a counsel
petition is hereby given due course. You are now de oficio.”
required to file MEMORANDA…” that is now
your time. Bombahan mo na! Huwag kang mag-
memorandum-memorandum sa comment. Pag The second paragraph of Section 8 is more
comment, sabihin mo lang na hindi ito puwede. important:
“Puwede ko pala tapusin ito in one day?” Of course!
The Court of Appeals may sentence of an accused who was tried

also, upon motion of the
appellee or motu proprio, in absentia and remained at large up
dismiss the appeal if the to the present time? Or even if he
appellant escapes from prison appealed, and while the appeal is
or confinement, jumps bail or
flees to a foreign country pending, he escaped?
during the pendency of the
appeal. (8a) HELD: The majority said YES. You
cannot apply Rule 124 because of the
There is an appeal pending in the CA, the nature of the death penalty. There are
appellant escaped from prison or jumped bail, or 6 justices who disagreed.
flees to a foreign country, under the 2nd “Section 8 of Rule 124 of the Rules
paragraph of Section 8, his appeal will be of Court which, inter alia, authorizes
dismissed. Abandoned na! By his act of running the dismissal of an appeal when the
away, the judgment of conviction will become appellant jumps bail, has no
final. application to cases where the death
penalty has been imposed. In death
This provision prompted the SC to also apply penalty cases, automatic review is
doon sa promulgation. Under Rule 120, if during mandatory. This is the text and tone of
the promulgation the accused disappears, the Section 10, Rule 122, which is the more
promulgation will proceed in absentia and then applicable rule.”
the law says the accused forfeits all his remedies. Ayun! So there is an applicable
Why? Kung nag-appeal siya, and then nag-layas rule and not the general rule in Rule
siya, the appeal will be dismissed, lalo na kung di 124. Let’s go to the philosophy of the
siya nag-appeal! You will also lose your right to ruling:
appeal. The reason according to the SC, once the “There is more wisdom in our
accused escaped from prison or confinement or existing jurisprudence mandating our
jumped bail, he loses his standing in court and review of all death penalty cases,
unless he surrenders or submits to the jurisdiction regardless of the wish of the convict
of the court, he is deemed to have waived any and regardless of the will of the court.
right to seek relief from the court. (Gimenez vs. Nothing less than life is at stake and
Nazareno, 160 SCRA 1) any court decision authorizing the
State to take life must be as error-free
We will now answer the question of Mr. as possible. We must strive to realize
Benito: this objective, however, elusive it may
be, and our efforts must not depend
Q: When a person who is sentenced to death on whether appellant has withdrawn
escaped, can the automatic review still proceed? his appeal or has escaped. Nor should
Or assuming there is already an automatic review the Court be influenced by the
and while he is in jail, naglayas, and the SC learns seeming repudiation of its jurisdiction
of his escape, what will happen to the automatic when a convict escapes. Ours is not
review? Tuloy or dismissed? only the power but the duty to review
A: This is the question which bugged the SC all death penalty cases. No litigant can
in the 1996 case of PEOPLE vs. ESPARAS (260 repudiate this power which is
SCRA 539) which was asked in the 1998 bar in bestowed by the Constitution. The
remedial law. The SC here is not unanimous. Six power is more of a sacred duty which
(6) justices dissented from the majority. There are we have to discharge to assure the
two sections compared here – Section 8 of Rule People that the innocence of a citizen
124 and Section 10 of Rule 122. is our concern not only in crimes that
slight but even more, in crimes that
PEOPLE vs. ESPARAS shock the conscience. This concern
260 SCRA 539 [1996] cannot be diluted.”
(Of course, the SC anticipated
ISSUE: Will the SC proceed to criticisms – bakit ba masyado kayong
automatically review the death (SC) protective of the rights of the
accused? That is the reason why thereof to the Supreme Court

for review. (13a)
criminality is rampant! But the SC
answered that: )
How can this happen that the CA finds the
“The Court is not espousing a
penalty of death, reclusion perpetua or life
“soft, bended, approach” to heinous
imprisonment should be imposed? This happens
crimes for we have always reviewed
normally in a situation like this: Mr. Concon is
the imposition of the death penalty
charged with murder and the court convicted
regardless of the will of the convict.
him only for homicide – so temporal yan. Where
Our unyielding stance is dictated by
will he appeal? Sa CA because the penalty
the policy that the State should not be
imposed is not death or perpetua. The trouble is
given the license to kill without the
when the CA reviews the case and finds that the
final determination of this Highest
crime should be murder pala!
Tribunal whose collective wisdom is
the last; effective hedge against an
Q: What should the CA do?
erroneous judgment of a one-judge
A: The CA should still decide and lay down
trial court. This enlightened policy
the facts and the law as if it is the SC. And then
ought to continue as our beacon light
the CA should really impose the death penalty or
for the taking of life ends all rights, a
reclusion perpetua. But it should not enter
matter of societal concern that
judgment. After imposing death or perpetua,
transcends the personal interest of a
itapon sa SC, “Please review our work and find
convict. The importance of this societal
out whether we are correct.” Yaan!
value should not be blurred by the
escape of a convict which is a problem
Automatically, the CA will not enter
of law enforcement. Neither should
judgement but should elevate the case. So the SC
this Court be moved alone by the
should have the final say on whether or not to
outrage of the public in the
adopt the findings and conclusions of the CA. But
multiplication of heinous crimes for
definitely, the CA should not shirk from its
our decisions should not be directed
responsibility of deciding the case on its merits
by the changing winds of the social
imposing the correct penalty of death or perpetua.
weather.”
That is that correct procedure under the new
rules.
Meaning, our decision shall not be influenced
by the thinking of the people – social weather.
And I think that is a very nice explanation why
you should not apply Rule 124.
Rule 125
PROCEDURE IN THE
And the last important portion here to master SUPREME COURT
is the second paragraph of Section 13:
SECTION 1. Uniform
SEC. 13. Quorum of the Procedure. – Unless otherwise
court; certification or appeal provided by the Constitution or
of cases to Supreme Court. by law, the procedure in the
X x x x x Supreme Court in original and
in appealed cases shall be the
Whenever the Court of same as in the Court of
Appeals find that the penalty Appeals. (1a)
of death, reclusion perpetua,
or life imprisonment should be SEC. 2. Review of decisions
imposed in a case, the court, of the Court of Appeals. – The
after discussion of the procedure for the review by the
evidence and the law involved, Supreme Court of decisions in
shall render judgment imposing criminal cases rendered by the
the penalty of death, reclusion Court of Appeals shall be the
perpetua, or life imprisonment same as in civil cases. (2a)
as the circumstance warrant.
However, it shall refrain from SEC. 3. Decision if opinion
entering the judgment and is equally divided. – When the
forthwith certify the case and Supreme Court en banc is
elevate the entire record equally divided in opinion or
the necessary majority cannot entertain a motion for reconsideration

be had on whether to acquit the
appellant, the case shall again and/or new trial predicated on
be deliberated upon and if no allegedly newly discovered evidence,
decision is reached after re- the rule now appears to have been
deliberation, the judgment of
conviction of lower court shall relaxed, if not abandoned, in
be reversed and the accused subsequent cases like “Helmuth, Jr. vs.
acquitted. (3a) People” and “People vs. Amparado.”
“In both cases, the Court, opting to
Q: When the penalty imposed by the RTC is brush aside technicalities and despite
perpetua for example, and since the appeal is the opposition of the Solicitor General,
direct to the Supreme Court, then what procedure granted new trial to the convicted
will the SC follow? Or when the case was decided accused concerned on the basis of
by the CA and you appeal to the SC, what proposed testimonies or affidavits of
procedure will the SC follow? persons which the Court considered as
A: Under Section 1, “Unless otherwise provided newly discovered and probably
by the Constitution or by law, the procedure in the sufficient evidence to reverse the
Supreme Court in original and in appealed cases shall judgment of conviction.”
be the same as in the Court of Appeals.” So there is
no problem, you can apply the previous rule – So we follow the later ruling – relaxed. And I
filing of brief, how many copies – the same. think that is fair enough for the accused. All the
doubts should be resolved in favor of the
Now, let’s go to one interesting ISSUE: Can accused.
you file a motion for new trial of a criminal case
before the SC on the ground of newly discovered
evidence?
Rule 126
In the past, there seems to be conflicting SEARCH AND SEIZURE
rulings on that issue. Like for example, if you go
to the 1965 case of GODUCO VS. CA (14 SCRA
282), the SC ruled that the SC is not authorized to We will now go to Rule 126 – Search and
entertain a motion for reconsideration and/or Seizure. This is one of the most controversial
new trial on the ground of newly discovered rules. This is as confusing sometimes as the
evidence because of the doctrine that the SC is not jurisprudence on warrantless arrests in Rule 113 –
a trier of facts – only questions of law are when may an arrest be made. Ito naman, Rule 126 –
supposed to be raised before the SC. when may there be a valid search and seizure.
However, the Goduco ruling seems to be Generally, peace officers are not allowed to
relaxed in other cases subsequently to the case of conduct search and seizures if they have no
Goduco. In the case of HELMUTH, JR. VS. search warrants. So this is again a review of
PEOPLE (112 SCRA 573 [1982]), and in PEOPLE Constitutional Law.
VS. AMPARADO (156 SCRA 712 [1987]), the SC
allowed the motion for new trial based on newly Q: How do you define a search warrant?
discovered evidence. A: You have Section 1:
SECTION 1. Search warrant

In 1995, that issue came out again in the case defined. – A search warrant is
of an order in writing issued in
the name of the People of the
Philippines, signed by a judge
CUENCA vs. COURT OF and directed to a peace
APPEALS officer, commanding him to
250 SCRA 485 search for personal property
described therein and bring it
before the court. (1)
HELD: Although in “Goduco vs.
CA” (14 SCRA 282 [1965]), this Court Now let’s go to Section 2 which is an entirely
ruled that it is not authorized to new provision:
enforceable throughout the country.” And

SEC. 2. Court where a search warrant fall under the general
application for search warrant
shall be filed.– An application provision “all other writs xxx”.
for search warrant shall be
filed with the following: Of course, under the last paragraph, when
(a) Any court within whose
territorial jurisdiction a there is already a case filed in court, then all
crime was committed. search warrants in connection with a pending
(b) For compelling reasons case can only be issued by the court where the
stated in the application, any
court within the judicial case is pending. This was also taken in Malaloan.
region where the crime was So that is the history of that provision.
committed if the place of the
commission of the crime is
known, or any court within the SEC. 3. Personal property to
judicial region where the be seized. – A search warrant
warrant shall be enforced. may be issued for the search
However, if the criminal and seizure of personal
action has already been filed, property:
the application shall only be (a) Subject of the offense;
made in the court where the (b) Stolen or embezzled and
criminal action is pending. (n) other proceeds, or fruits of
the offense; or
(c) Used or intended to be
This provision was taken from the ruling of used as the means of committing
the SC in the leading case of MALALOAN vs. CA an offense. (2a)
(232 SCRA 249 [1994]) which was reiterated in the
case of PEOPLE vs. CA (291 SCRA 400). Take note that only personal property may be
seized pursuant to a search warrant. lets us
MALALOAN vs. COURT OF connect this with Section 4:
APPEALS
SEC. 4. Requisites for
232 SCRA 249 issuing search warrant. – A
search warrant shall not issue
Q: Can a search warrant issued by except upon probable cause in
connection with one specific
let’s say, a Davao City court be offense to be determined
enforced in any other place outside of personally by the judge after
Davao City? examination under oath or
affirmation of the complainant
A: YES, because a search warrant and the witness he may produce,
is merely a court process. It should not and particularly describing the
be confused with the correct venue for place to be searched and the
things to be seized which may
the filing of the case. But here, there is be anywhere in the Philippines.
no case. We are only talking about (3a)
search and seizure which is a mere
SEC. 5. Examination of
court process. It has nothing to do complainant; record. – The
with the filing of a criminal case. So judge must, before issuing the
you cannot limit the power of the warrant, personally examine in
the form of searching questions
search warrant only within the place and answers, in writing and
where the crime was committed. under oath, the complainant and
Furthermore, search warrants are the witnesses he may produce on
facts personally known to them
usually applied by law enforcement and attach to the record their
officers and it is too much to require sworn statements, together with
peace officers to know in advance the affidavits submitted. (4a)
where is the probable venue of the
criminal case. And based on the Q: What are the requisites for the issuance of
interim rules, there is a statement a search warrant?
there that “xxx writs of certiorari, A: There are five (5) requisites for the issuance
prohibition, habeas corpus, etc… of the of a search warrant:
RTC are enforceable only within the
region. All other writs or processes are 1. There must be an application which must
be under oath;
2. There must be an affidavit in support of 5. The search warrant shall be issued in

the application. The affidavit must be connection with but one offense.
based on the personal knowledge of the
affiant. So for example, I suspect that in
your building, there are many objects
That is why under Section 5, the there. There are unlicensed firearms.
judge must, before issuing the Meron din diyan shabu. And there are
warrant, personally examine in the also smuggled goods. So three laws
form of searching questions and are violated – illegal possession of
answers, in writing and under oath, firearms, prohibited drugs, and
the complainant and his witnesses to customs law.
find out what the affiant really know So gawa tayo ng isang search
what he is talking about. And warrant lang to seize those objects –
everything must be reduced in shabu, firearms, smuggled goods – ah
writing. hindi puwede yan! because “one
Now, you cannot apply here in search warrant, one offense.” So there
Rule 126 the ruling in Lim vs. Felix that must be three different search
a judge can just look at the affidavits warrants. Otherwise the search
and determine whether to issue or not warrant is a general warrant which is
to issue a warrant of arrest. The ruling prohibited under the Constitution.
in Lim is based on the issuance of
warrant of arrest after preliminary And one of the leading case regarding on that
investigation. But we are talking here issue is the case of STONEHIILL vs. DIOKNO (20
(Rule 126) of a search warrant. Here, it SCRA 383) where a search warrant was issued
must be literal – there must really be a against an American businessman who had a
personal examination. violation daw ng NIRC, RPC, etc. – gi-one time
ba! And it was declared as null and void by the
3. The search warrant must particularly SC because there were so many items which were
describe the place or the person to be allegedly seized in connection with violation of
searched and the things to be seized; different laws like NIRC, RPC, Central Bank Act.
That is a general warrant.
4. There is probable cause for its issuance;
However, if we go by jurisprudence on
Q: What do you mean by probable general warrants, it is not really necessary that in
cause for the purpose of issuing a order to be classified as a general warrant, it was
search warrant? issued for several offenses under different laws.
A: Probable cause refers to such For example in the case of
facts and circumstances which could
lead a reasonably discreet and prudent BURGOS, SR. vs. CHIEF OF
man to believe that an offense has STAFF
been committed and that the item(s), December 26, 1984 (134 SCRA)
article(s) or object(s) sought in
connection with said offense or subject FACTS: A search warrant was
to seizure and destruction by law is in issued to raid the editorial offices of
the place to be searched. (People vs. Metropolitan Mail and We Forum
Encinada, October 2, 1997). (predecessor of Malaya) somewhere in
In one case, the SC said that Quezon City. What were going to be
probable cause does not mean actual confiscated were materials, pamphlets,
and positive cause, nor does it import printing machines to stop the paper
absolute certainty. The requirement is from publishing on the alleged
less than certainty or proof, but more than violation of Anti-Subversion Act (PD
suspicion or possibility. (Columbia 885) during the time of Marcos.
Pictures vs. CA, August 26, 1996)
Burgos challenged the validity of the otherwise it becomes a general

search warrant before the SC. warrant.
ISSUE #1: According to Burgos, So if you just say that the search warrant is for
“You cannot seize those things violation of a law, then that is a general warrant.
because I am not the owner of those. I You must point out the section which was
am just leasing them.” Can you only allegedly violated. So in the case of Burgos, the
seize from somebody objects which he search warrant was declared as a general warrant
owned? inspite of the fact that only one law was violated.
HELD: NO, because there is no
provision in the law to that effect. And As a matter of fact, the concurring opinion of
under Section 3, you can seize “stolen former Justice Abad Santos was clearer eh. He
or embezzled and other proceeds, or fruits said, “In the case at bar nothing specifically
of the offense.” For example, you can subversive has been alleged; stated only is the
issue a warrant to seize stolen claim that certain objects were being used as
property from a thief or robber. Is the instruments and means of committing the offense
thief or robber the owner the owner of of subversion punishable under P.D. No. 885, as
those stolen property? Of course not! amended. There is no mention of any specific
So, there is no requirement that you provision of the decree. It would be legal heresy,
can only seize it from its owner. Talo si of the highest order, to convict anybody of
Burgos sa issue na yan. violating the decree without reference to any
determinate provision thereof.
ISSUE #2: According to Burgos, “The obvious question is: Why were the
you cannot seize the printing documents, pamphlets, leaflets, books, etc.
equipments because under the law subversive? What did they contain to make them
you can only seize personal property. subversive? There is nothing in the applications
These printing machines are all nor in the warrants which answers the questions.
attached to the building and under the I must, therefore, conclude that the warrants are
law on Property, when a machinery is general warrants which are obnoxious to the
attached to the immovable, it becomes Constitution.”
immovable or real property also. And
you cannot seize a real property. Let’s distinguish Burgos in the case of
HELD: You are correct BUT there OLAES vs. PEOPLE
is an EXCEPTION – if the machine is 155 SCRA 486 [1987]
attached by somebody who is not the
owner of the building, then the FACTS: The caption of the search
machine is still a movable property. warrant states that it is in connection
So, tinamaan na naman siya dun. with “Violation of RA 6425, otherwise
known as the Dangerous Drugs Acts
ISSUE #3: Was the search warrant of 1972.” The text of the warrant
a general warrant? however says, “There is probable
HELD: YES. What were seized cause to believe that Olaes has in his
were paraphernalia, pamphlets, possession and control and custody of
printing machines, etc. which, marijuana dried
according to the search warrant, were stalks/leaves/seeds/cigarettes and
used in committing the crime of other regulated/prohibited and
subversion under PD 885. So there is exempt narcotics preparations which
only one law violated unlike in the is the subject of the offense stated
case of Stonehill na marami. above.” Olaes argued that the warrant
But sabi ng SC, the search warrant is a general warrant because it does
is a general warrant. It is true that not specifically point to certain
there is only one law violated but provisions in the Dangerous Drugs
there are many sections in the Decree. Act.
You must allege the section violated,
HELD: Olaes is correct BUT there same species, as to be subsumed

is only once section in marijuana. So within the category of illegal
what are we talking? So, even if it is possession of firearms, etc. under P.D.
not mentioned, it is understood that it No. 1866.”
points to marijuana. So the word “etcetera” covers them
all.
PEOPLE vs. DICHOSO
223 SCRA 174 Another interesting case is the 1988 case of
Twentieth Century Fox vs. CA (164 SCRA 655),
FACTS: A search warrant was reiterated in Columbia Pictures vs. Flores (June 29,
issued for the seizure at Dichoso 1993). It refers to a violation of PD 49 (otherwise
residence of shabu, marijuana, known as the Decree on the Protection of
paraphernalia, etc. Dichoso argued Intellectual Property) on anti-film piracy during
that his illegal possession of shabu, the height of betamax tapes.
marijuana and paraphernalia are
covered by different articles and TWENTIETH CENTURY FOX vs.
sections of the Dangerous Drugs Act. COURT OF APPEALS
Hence, the warrant is a general 164 SCRA 655
warrant.
FACTS: A search warrant was
HELD: Teka muna! Marijuana is issued for alleged violation of Anti-
regulated, shabu is also prohibited. Piracy Law. The things to be seized
But they both of them belong to one were video tapes, television sets, video
family – dangerous drugs. So cassette recorders, rewinders, tape
magkapatid man yan! Pareho na rin cleaners, and almost everything.
iyan!
“The Dangerous Drugs Act of 1972 HELD: The warrant is general. It is
is a special law that deals specifically void. Why? Of course, if you seize the
with dangerous drugs which are tapes, puwede pa yan. But why will
subsumed into "prohibited" and you seize television sets, video cassette
"regulated" drugs and defines and recorders, rewinders, etc? Are they
penalizes categories of offenses which illegal objects?
are closely related or which belong to “Television sets, video cassette
the same class of species. Accordingly, recorders, rewinders and tape cleaners
one (1) search warrant may thus be are articles which can be found in a
validly issued for the said violations of video tape store engaged in the
the Dangerous Drugs Act.” legitimate business of lending or
renting out betamax tapes. In short,
PRUDENTE vs. DAYRIT these articles and appliances are
180 SCRA 69 (1989) generally connected with, or related to
a legitimate business not necessarily
FACTS: The application for search involving piracy of intellectual
warrant was captioned: “For Violation property or infringement of copyright
of PD No. 1866 (Illegal Possession of laws. Hence, including these articles
Firearms, ETC.)” And what were without specification and/or
taken were firearms and explosives. particularity that they were really
The validity of the search warrant was instruments in violating an Anti-
questioned on the ground that there Piracy law makes the search warrant
are two different violations – firearms too general which could result in the
and explosives. confiscation of all items found in any
video store.”
HELD: “Such illegal possession of
items destructive of life and property
are related offenses or belong to the
PEOPLE vs. COURT OF without the presence of the owner or the

APPEALS occupant of the house. Or if nobody is around,
216 SCRA 101 the searching officer must secure 2 witnesses, 2
members of the neighborhood. They cannot
FACTS: The body of the search search on their own without any witnesses.
warrant stated was that the items were
“Stolen or Embezzled and proceeds or Q: What is the reason?
fruits of the offense, used or intended A: In order that the searching party will not
to be used as the means of committing just get anything which is not the subject of the
the offense.” So, practically, the warrant. This usually happens. You supposed to
policeman copied the whole of Section search for marijuana, but you brought along the
3. refrigerator. One reason also is to prevent the
planting of evidence.
HELD: The warrant is void. “The
warrant was a scatter-shot warrant One interesting case here is
that could refer "to robbery, theft,
qualified theft or estafa." On this score QUINTERO vs. NBI
alone, the search warrant was totally 162 SCRA 467
null and void.”
FACTS: NBI raiders went to
search a house by virtue of a search
SEC. 6. Issuance and form of warrant. What the NBI did, because
search warrant. – If the judge
is satisfied of the existence there were so many rooms, was they
of facts upon which the conducted the search simultaneously.
application is based or that One NBI searching the room and the
there is probable cause to
believe that they exist, he other in another room.
shall issue the warrant, which
must be substantially in the HELD: That type or procedure is
form prescribed by these Rules.
(5a) wrong because how can the witnesses
be present everytime the search is
SEC. 7. Right to break door made when one is in the other room
or window to effect search. –
The officer, if refused and the others in another room. “Such
admittance to the place of a procedure, wherein members of a
directed search after giving raiding party can roam around the
notice of his purpose and
authority, may break open any raided premises unaccompanied by
outer or inner door or window any witness, as the only witnesses
of a house or any part of a
house or anything therein to
available as prescribed by law are
execute the warrant to liberate made to witness a search conducted
himself or any person lawfully by the other members of the raiding
aiding him when unlawfully
detained therein.
party in another part of the house, is
held to be violative of both the spirit
SEC. 8. Search of house, and the letter of the law, which
room, or premises to be made in
presence of two witnesses. – No
provides that no search of a house,
search of a house, room, or any room, or any other premises shall be
other premises shall be made made except in the presence of at least
except in the presence of the
lawful occupant thereof or any
one competent witness, resident of the
member of his family or in the neighborhood.”
absence of the latter, two
witnesses of sufficient age and
discretion residing in the same
locality. (7a) SEC. 9. Time of making
search. – The warrant must
direct that it be served in the
Remember there is a similar provision in the day time, unless the affidavit
RPC (violation of domicile). Even if there is a asserts that the property is on
the person or in the place
search warrant, you cannot search the house ordered to be searched, in
which case a direction may be days until completed. Thus, when the
inserted that it be served at
any time of the day or night. search under a warrant on one day
(8) was interrupted, it may be continued
under the same warrant the following
Now, let’s go to a very important provision – day, provided it is still within the ten-
Section 10: day period.
SEC. 10. Validity of search Yaan! So that is the correct interpretation of

warrant. – A search warrant the 10-day period. Hindi naman kailangan na you
shall be valid for ten (10) have to finish everything on the same day. You
days from its date. Thereafter,
it shall be void. (9a) may still continue tomorrow but be sure that
tomorrow is still within the 10-day period.
A search warrant has a lifetime only of ten Suppose you cannot finish naman tomorrow?
(10) days. Compare that with the lifetime of a Continue on the next day? Puydi! – tuloy! basta
warrant of arrest under Section 4 of Rule 113. within the 10-day period.
Under Rule 113, the 10-day period does not mean
to say that the warrant of arrest is only good for
SEC. 11. Receipt for the
10 days. It is only a directive that you will enforce property seized.– The officer
it within 10 days. If you cannot arrest, di bayaan seizing the property under the
mo! Keep it and try to arrest the accused in the warrant must give a detailed
receipt for the same to the
future. lawful occupant of the premises
in whose presence the search
But a search warrant, iba – talagang 10 days and seizure were made, or in
the absence of such occupant,
lang. Thereafter, it shall be void. Does this mean must, in the presence of at
to say that you can use a search warrant everyday least two witnesses of
for 10 days? NO. You can use it once for 10 days. sufficient age and discretion
residing in the same locality,
But it does not mean you can use it everyday or leave a receipt in the place in
for the next 10 days. which he found the seized
property. (10a)
One interesting case on the issue of the 10-day
period on search warrants is the 1996 case of
SEC. 12. Delivery of
property and inventory thereof
MUSTANG LUMBER, INC. vs. to court; return and
COURT OF APPEALS proceedings thereon. – (a) The
257 SCRA 430 [1996] officer must forthwith deliver
the property seized to the
judge who issued the warrant,
FACTS: A search warrant was together with a true inventory
secured on a certain date and enforced thereof duly verified under
oath.
the same on the same day. But the (b) Ten (10) days after
raiding team could not finish the issuance of the search warrant,
search in one day. So they postponed, the issuing judge shall
ascertain if the return has
“bukas naman ituloy.” been made, and if none, shall
summon the person to whom the
ISSUE: Can you still continue warrant was issued and require
him to explain why no return
tomorrow? Or must you finish was made. If the return has
everything today? been made, the judge shall
ascertain whether section 11 of
this Rule has been complied
HELD: Under the Rules of Court, a with and shall require that the
search warrant has a lifetime of ten property seized be delivered to
days. Hence, it could be served at any him. The judge shall see to it
that subsection (a) hereof has
time within the said period, and if its been complied with.
object or purpose cannot be (c) The return on the search
accomplished in one day, the same warrant shall be filed and kept
by the custodian of the log
may be continued the following day or
book on search warrants who FACTS: This involves a controversy

shall enter therein the date of
the return, the result, and between Washington Distillers and La
other actions of the judge. Tondeña Distillers. Obviously, their
A violation of this section products are spirits and wine.
shall constitute contempt of According to La Tondeña Distillers, the
court. (11a)
bottles that Washington Distillers uses
for their products are actually La
Tondeña bottles. They buy empty
Q: After the search warrant has been bottles, lilinisin nila, and they use them
implemented, what happens next? to serve their products. Nagreklamo ang
A: Under Section 11, the officer must give a La Tondeña because those are their
receipt to the owner or person from whom he bottles, of course.
took it or to the witness. And under Section 12 One of the issues here is whether
[a], the officer must forthwith deliver the you can still claim the bottles,
properties seized to the judge who issued the binayaran na yan eh. When the buyer
warrant together with a true inventory thereof bought the product, he already paid
duly verified under oath. So, receipt and then for the bottle, so why are you
deliver. complaining? So that was the issue
‘noh?
Now, there are two new paragraphs, inserted So La Tondeña decided to apply
in Section 12—paragraphs [b] and [c] – that there for a search warrant to raid the
is a deadline for the officer to submit this report premises of Washington Distillers to
and to make a return of the warrant. There is a recover all these bottles. And there
deadline for him to do that. And the last portion was really a raid and so many bottles
of Section 12 says: where taken from the premises of
Washington Distillers. All those
“A violation of this section shall
bottles were turned over to La
constitute contempt of court.”
Tondeña.
I do not know the reason behind this Now, Washington Distillers
amendment. I presume it was inserted by the SC questioned the act of turning over the
maybe because in other places after the search bottles to La Tondeña. Of course, the
warrant has been implemented, the court never issue is ownership. Admittedly, these
knew what happened to the warrant, all the are your bottles but when the
things were appropriated by the officer, they customers bought those bottles and
were not turned over to the court. Maybe because the contents you can no longer claim
of such experience, the SC decided to give a ownership over those bottles. More or
deadline for the turnover of all the properties less that is the issue. So they were
seized and for the report. That’s only my quarreling over the issue of
conjecture, ‘noh? ownership.
Now, Washington Distillers
secured the services of Estelito
Let’s go to some interesting cases regarding Mendoza on this issue. Medoza
these personal properties subject of a search questioned the action of La Tondeña
warrant. in trying to get the bottles.
WASHINGTON DISTILLERS HELD: Estelito Mendoza was

INC. vs. COURT OF APPEALS sustained in the SC. Why? Because if
260 SCRA 821 [1996] we are quarreling about the issue of
ownership of the bottles, then there
should be another case for replevin.
Or, the bottles are in the possession of
the government, the La Tondeña
should file action for interpleader to
determine who really owns the bottles.
But you cannot use a mere search HELD: YES, because does the law
warrant to resolve the issue of requires parties to certify under oath
ownership. A search warrant is only to that they have not “theretofore
get the property, but it does not have commenced any other action or
the same effect as a writ of replevin. proceeding involving the same issues
“A search warrant proceeding is in the Supreme Court, the Court of
not a criminal action, much less a civil Appeals, or any other tribunal or
action. It is a special criminal process, agency” and that to the best of their
the order of issuance of which cannot knowledge “no such action or
and does not adjudicate the proceeding is pending” in said courts
permanent status or character of the or agencies. Di ba that’s the language
seized property. It cannot therefore be of forum shopping?
resorted to, as was done here by La “Indeed, the policy against
Tondeña Distillers, as a means of multiple court proceedings clearly
acquiring property or of settling a applies to applications for search
dispute over the same. The proper warrants. If an application for search
remedy is for private respondent or warrant can be filed even where there
for the Government itself, assuming are other applications pending or
the role of a stakeholder, to bring the denied in other courts, the situation
appropriate action.” would become intolerable.” And what
is the certification – ‘that I have not
So that is a very nice case, ‘noh? There is also filed any other action or proceeding’.
another interesting issue in the case of YOOON! ‘PROCEEDING’! An
Washington Distillers which was also raised by application for a search warrant is a
Mendoza: court proceeding which is covered by
the rule on forum shopping.
WASHINGTON DISTILLERS
INC. vs. CA (supra)
So that was the ruling of the SC in this case.
FACTS: According to Mendoza, That’s why you will see how analytical and
the application for search warrant is brilliant Estelito Mendoza is. Makita niya ang
void or it should have been rejected mga ito. In other words, he can really detect these
because when the peace officer points which normally other lawyers will not be
applied for the search warrant, there able to detect. Magaling man talaga yan siya ba.
was no certification on non-forum Nasira lang yan siya sa impeachment trial. He’s
shopping. Kaya sabi ni Mendoza, unpopular…pero he’s really very good.
“How do we know? You might have Compared to the prosecution panel, na outclass
also applied for search warrant in talaga yun. Walang laban yun. When I read it,
another court. So, you must certify grabeh talaga itong argument niya kung saan
that you have not filed any other niya pinulot ito. And he has been sustained in the
application for search warrant before SC. Alright.
any other court.” That is a very unique
argument. Did I tell you about somebody from Davao
Sabi ng other party, “No, hindi who wanted to get the services of Mendoza?
yan applicable. Hindi man kaso ito. Wala, ayaw tanggapin. If not for the
I’m not filing a complaint or a petition recommendation of one of his closest friends in
where I will include a certification on Davao. Sabi niya, we do not accept for the
non-forum shopping. This is just an moment because of the impeachment trial, we’re
application for a search warrant.” all busy. He’s busy. “I’m paying!” How much?
“Two million? Three Million? I’ll pay na!” No, wala,
ISSUE: Does the rule on non- ayaw tumanggap ni Mendoza. That’s very small
forum shopping certification also to him. Alright.
apply to search warrant?
Let’s go now to the most controversial
provision – Section 13 – The issue on Warrantless search warrant issued by the court to
Search and Seizure. search a building somewhere in
chinatown in Binondo, Manila on the
ground that there was opium or other
SEC. 13. Search incident to drugs in that house. So the raiding
lawful arrest. – A person
lawfully arrested may be party went to the house and
searched for dangerous weapons announced to the owner that they
or anything which may have been have a search warrant. So the owner
used or constitute proof in the
commission of an offense had no choice but to allow the search.
without a search warrant. (12a) They searched the premises, they did
not find any opium. Wala! But,
Q: When may a search and seizure be effected instead, what they found were
without a search warrant? firearms – unlicensed firearms. And
A: Section 13 - when it is merely incidental to because they discovered the presence
a lawful arrest. A person lawfully arrested may of these firearms, they arrested the
be searched for dangerous weapons or anything accused for illegal possession of
which may be used or constitute proof in the firearms and seized all his firearms.
commission of an offense without a search There were two questions which
warrant. were asked in the bar—
This is because it’s absurd, ‘noh? if I’m ISSUE #1: Can the peace officers
arresting a criminal by virtue of a warrant, or the seized the firearms by virtue of the
arrest is valid with no warrant (because that search warrant?
would be valid arrest without a warrant) he HELD: NO, Because a search
might be holding a gun or a knife. And if you do warrant can only issue for one offense.
not search him, he might stab the arresting The offense was possession of opium
officer. And it would be absurd to say, “ok, you or drugs. It cannot be used to seize
can arrest me because of your warrant of arrest, but firearms. So the firearms cannot be
you cannot search me because you have no search seized by virtue of the warrant.
warrant.” So you ask the policeman to go back to
court to get the search warrant. There’s ISSUE #2: Would you say
something wrong there. Yung search, dala na therefore that the seizure of these
yun! When the arrest is valid or lawful, firearms is illegal?
automatically the search becomes also lawful. HELD: NO. It is valid because in
the course of their search for opium,
That is why in most cases involving search they discovered another crime – illegal
and seizures, the target of the person against possession of firearms. And since they
whom something is taken is the validity of the discovered the commission of another
arrest. Because once he can prove that the arrest is crime, they have the authority THEN
not valid, then automatically the accompanying AND THERE to arrest the owner
search is not also valid. Because, no valid arrest because the crime is being committed
means no valid search and seizure. That is the in their presence. So there is a valid
pattern. warrantless arrest. And since there is a
valid warrantless arrest, automatically
There are so many cases here. I’m just there is also a valid warrantless
choosing the interesting ones. seizure. So, dun nahuli. What gives
the peace officers the authority is not
the search warrant, but the fact that it
UY KHEY TENG vs. VILLAREAL becomes merely incidental to the
42 PHIL 886 arrest of the accused.
FACTS: This is a very old case, Let’s go now to other cases. We are
already asked in the bar. There was a concentrating on the question of whether there is
a valid seizure. Whether you can say that the
seizure is incidental to an arrest. FACTS: Rogelio Catan was

entrapped by two NARCOM poseur-
buyers in a buy-bust operation right
PEOPLE vs. CENDAÑA inside Catan’ s house. The NARCOM
October 17, 1990 agents pretended to be addicts.
Pagbigay, HULI! After the arrest, the
FACTS: Somebody was killed and NARCOM agents searched the
the accused was arrested the following premises and recovered more
day. He was arrested on the basis of marijuana. Catan asserted that the
information obtained by police officers search of his premises was illegal.
from unnamed sources. Of course, If you look at the law, what can
when they arrested him inside his you search? The search is valid, di ba?
house nakita nila yung baril talaga He may be search for dangerous
doon. There was really a gun which weapons or anything which may
they believed to be the very gun used constitute proof. What was search was
to kill the victim. So they seized it. the premises. Dun nakita yung
maraming marijuana, eh. What was
ISSUE: Was there a valid seizure? taken from him, maliit lang. Dun siya
Walang warrant, eh. We go back, we tinamaan ng illegal possession,
have to determine whether there was because of the quantity.
also a valid arrest. Remember wala din So Catan was questioning the
silang warrant eh, when they arrested search because you did not search my
him. You go back to Rule 113. Is there body! You searched my premises.
a valid warrantless arrest?
HELD: VALID! When you say
HELD: No valid arrest. “Accused- search of the person, it INCLUDES the
appellant was arrested one day after immediate premises because for all
the killing of the victim and only on you know, walang baril, pero yung
the basis of information obtained by baril pala nasa drawer niya at
the police officers from unnamed gagamitin sa iyo. So it includes the
sources. These abovementioned surrounding premises. That is covered
circumstances clearly belie a lawful by the incidental search.
warrantless arrest.” It is not Catan is wrong. “Appellant was
sanctioned by Rule 113. So kapag arrested in flagrante delicto in the act of
bagsak ang arrest, bagsak din selling and delivering marijuana to the
automatically ang seizure. poseur-buyers. His case therefore falls
“Considering that the arrest of under the category of a valid
accused-appellant herein was warrantless arrest. The subsequent
unlawful, any search conducted on his search of his house which immediately
person or place of arrest which is an followed yielding other incriminating
incident thereof, was also unlawful. evidence was a search
Perforce, any evidence recovered contemporaneously made and as an
during the unlawful search, being incident to a valid warrantless arrest
made without a warrant, becomes in the immediate vicinity where the
inadmissible in evidence against arrest was made. That is a recognized
accused-appellant and the shotgun exception to the general rule that any
which was allegedly the fatal weapon search and seizure must be supported
cannot be presented against him.” by a valid warrant.” That is the
general rule.
PEOPLE vs. CATAN When you say incidental search, it does not
205 SCRA 235 only refer to kapkapan mo yung tao. Pati
immediate vicinity is included because
remember, he may have dangerous weapons in
his body which he can use against you. But the pocket a coin purse containing dried
dangerous weapon may not be in his body but leaves wrapped in a foil. The dried
within the immediate premises. That is what the leaves turned out to be marijuana after
SC said. The same rule or pattern emerged in the laboratory examination.
case of: So he was arrested for the killing,
ang nakuha sa kanya is a coin purse
PEOPLE vs. LI WAY CHUNG containing marijuana. So dalawa na
214 SCRA 431 [1992] kaso niya.
FACTS: Search without warrant of ISSUE #1: Was the warrantless

the appellant’s dwelling. Appellant’s arrest of Gerente lawful?
dwelling is just a single-room unit, HELD: YES! The eye witness Edna
which is around 9 square meters. Edwina Reyes reported the happening
Maliit lang yung kwarto ng accused. to the policemen and pin-pointed her
They searched the room and found neighbor Gerente as one of the killers.
out evidence. Since the policemen have personal
knowledge (YUN!) of the violent
HELD: “The search without a death of Blace, and of facts indicating
warrant of appellant’s dwelling, a that Gerente and two others are guilty.
single room unit with a total area of 9 We’re going back to Rule 113 – what
sq. m. was a valid as an incident of a do you mean by personal knowledge
lawful warrantless arrest. The search or probable cause…they could
was conducted in a confined place lawfully arrest Gerente without a
within appellant’s immediate control, warrant. If they had postponed his
an area where he might gain arrest until they could obtain a
possession of a weapon.” warrant, he would have fled like his
companions na nakasibat na.
PEOPLE vs. GERENTE ISSUE #2: May the marijuana be

219 SCRA 756 validly used as evidence in a
prosecution for illegal possession of
FACTS: A witness testified that at dangerous drugs? Was the marijuana
7 o’clock in the morning, she saw three validly seized?
persons started drinking liquor and HELD: YES. The search conducted
smoking marijuana and overheard on Gerente’s person was likewise
them killing Clarito Blace. Narinig lawful because it was made as an
lang niya. Nine hours after, or at 4 incident to a valid arrest. It was in
P.M., the police received a report of a accordance with Section 12, Rule 126,
mauling incident. So a police citing the case of Adams vs. Williams,
investigator went to the hospital an American case: “It was ruled that
where the victim was brought and was the individual being arrested may be
told that the victim died on arrival. frisked for concealed weapons, that
Patay na! Police investigator and his may be used against the arresting
companions proceeded to the scene of officer, and all unlawful articles found
the mauling and there they were in his person or within his immediate
informed by the witness that she saw control may be seized.”
the killing and pointed to Gabriel
Gerente, as one of the three men who PEOPLE vs. QUIZON
killed Blace. 256 SCRA 325 [1996]
The policemen went to the house
of Gerente who was then sleeping, NOTE: The guideline in order not
asked the latter to come out, and when to be lost is placed here nicely. The
he did, he was placed under arrest. He guideline given by the SC is this—it is
was frisked, the police finding in his wise to remember this, because as we
said, ang premise natin only the arrest In the 1995 or 1996 bar, the very first question
eh. in Remedial Law was: Explain what is meant by the
Terry Search.
HELD: “It is beyond cavil that a
lawful arrest must precede the search Ay, maraming tinamaan dun. Ano ba ito?
of a person and his belongings. Where How do you explain the process of Stop and Frisk
a search first undertaken, then an which is one of the instances where the
arrest effected based on evidence warrantless search may be allowed? If you do not
produced by the search, both such know your constitutional law, patay ka!
search and arrest would be unlawful,
for being contrary to law.” Now, ano ba itong Terry Search? Alam natin
yung Stop and Frisk. There are many factors there
You get that? Unahin muna ang arrest— to consider. First, that is normally applied to
lawful—and then search. If you will search, and peace officers. When they see someone acting
in the process of searching you discover suspiciously at the wrong time and at the wrong
something and you will arrest him… aba, hindi place. For example, you are patrolling in the
puwede because how can you say that the search middle of the night then you see somebody in the
was incidental to a lawful arrest eh nauna yung dark. That will invite your attention. And then,
search kaysa arrest? So, unlawful pareho. The the Terry Search says you must ask questions first
arrest must precede the search, not the search – What is your name? Why are you here in the middle
preceding the arrest. Do not search him in the of the night? Hindi ka puwedeng mag-kapkap
hope that you will discover something unlawful. kaagad. Magtanong ka muna. Find out whether
you are satisfied with his answers. Now, if
somehow you doubt his answer—like if he is
INSTANCES OF VALID WARRANTLESS wearing a big jacket and trying to hide
SEARCH something—ayan na! You can say “I will frisk
you”.
Q: Suppose you will be asked this question:
What are the instances under the law when there The guideline here is the appearance of the
could be a valid seizure without a search person, the time, the occasion of the search. And
warrant? What are the instances when there you have to limit first your observation on the
could be a valid warrantless search and seizure? outer garments. But you have to consider also,
A: The following are the instances: according to the SC, the experience of the peace
officer. Because peace officer, somehow, they
1. When the search is merely incidental have sixth sense eh when it comes to shady
to a valid arrest (Section 13); characters. These are the factors which should be
2. Stop And Frisk Rule; taken into consideration, then stop and frisk.
3. Search of moving vehicles; Kapkapan mo. Now suppose in doing that,
4. Evidence in plain view; firearm is taken, or anything, pwede. He cannot
5. Customs searches; say inadmissible. Under the second exception ito
6. Consented search; (Stop and Frisk).
7. Exigent searches or searches during
emergency circumstances Now we’ll illustrate some cases to
demonstrate how this has been applied. Let us
start with a case which originated in Davao.
STOP AND FRISK RULE
POSADAS vs. COURT OF
The Stop and Frisk Rule was taken by the SC APPEALS
from a leading American case, TERRY VS. STATE 180 SCRA 283
OF OHIO (392 US 1, 20 L Ed 2d 889, 88 S Ct 1868)
cited in the case of PEOPLE VS. MALMSTEDT NOTE: The search was conducted
(198 SCRA 401) and POSADAS VS. CA (180 in Magallanes Street, sa may RMC.
SCRA 283) FACTS: At about 10 o’clock in the
morning, two policemen were
conducting a surveillance. Obviously, acted suspiciously and attempted to

they were expecting something to flee with the buri bag, there was a
happen, or they were asked to look for probable cause that he was concealing
somebody. They spotted Posadas something illegal in the bag. It was the
carrying a buri bag. They notice him to right and duty of the police officers to
be acting suspiciously. (What do you inspect the same, “Why are you
mean by acting suspiciously? Let us running? We’re just introducing
leave that to the judgment of the peace ourselves, ba’t tumakbo ka?” Ayan. It
officer.) Both policemen approached will arouse suspicion.
Posadas and identified themselves. “It is too much indeed to require
But when they introduced themselves, the police officers to search the bag in
Posadas attempted to flee. “There is the possession of Posadas only after
something wrong here. Nagpakilala they shall have obtained a search
tayong pulis, tumakbo siya. Why is he warrant for the purpose. Such an
running?” exercise may prove to be useless, futile
So, they caught him. A check of the and much too late.”
buri bag yielded one caliber .38 Smith
& Wesson revolver, 2 teargas grenades So you can see the pattern. Alam niyo ang
and live ammunitions of .32 caliber mga kasong ganito—warrantless searches,
gun. Posadas was not able to show the warrantless arrests under Rule 113—ang pag-asa
necessary license or authority to mo lang dito read as many cases as possible.
possess firearms and ammunitions. So Because if you will be questioned by the
he was prosecuted for illegal examiner, definitely it will be patterned after one
possession of firearms and case. If you are familiar with the cases, madaling
ammunitions. makilala. It would be easy. As what happened
last year, there was a question in Constitutional
ISSUE: Was there a valid search Law on stop and frisk. Sabi nila, “Uy! [si Judee na sad!]
and seizure to make a confiscated Nabasa ko man ang kasong ito.” And it was
items admissible evidence? really the same case. The same facts, eh. Sa
sementeryo, inaresto, mapula ang mata, parang
HELD: YES. “There was a valid hubog maglakad…meaning, he was suspected to
search and seizure. At the time the be an addict. The same! We’ll touch the case later.
peace officers identified themselves I think that’s the case of Manalili vs Court of
and apprehended Posadas as he Appeals. Alright.
attempted to flee, they did not know
what he had committed, or was We’ll compare this case of Posadas with a
actually committing illegal possession similar case – the case of
of firearms. They did not know that!
They just went there and introduced PEOPLE vs. MENGOTE
themselves. They just suspected that 210 SCRA 174
he was hiding something in the buri
bag. They did not know what its FACTS: Rogelio Mengote was
contents were. The said circumstances arrested by policemen because he was
did not justify the arrest without the acting suspiciously. Ayan na naman,
warrant.” – klaro yan – because is pareho sa Posadas eh. He was looking
there a crime if you walk around with from side to side while holding his
a buri bag? I don’t think there is a abdomen. When searched, he was
crime, ‘noh?) found with a .38 revolver with six live
“HOWEVER—[yaaan!]—the bullets. The incident occurred before
search, in the case at bar, is reasonable noon time – so tanghali! – at the corner
considering that it was effected on the of Juan Luna and North Bay
basis of probable cause.” [So, balik na Boulevard, Tondo, Manila. Almost the
naman tayo sa probable cause.] The same with Posadas—ten o’clock in the
probable cause is that when Posadas
morning, before noon. But how come “It would be a sad day, indeed, if
there is a difference in the ruling? any person could be summarily
NOTE: Take note ha, in the case of arrested and searched just because he
Posadas, tumakbo. In Mengote, hindi is holding his abdomen, even if it be
man tumakbo. Basta linapitan siya, possibly because of a stomach-ache, or
nakapkapan ng baril. Mengote was if a peace officer-could clamp
convicted of illegal possession of handcuffs on any person with a shifty
firearms. look on suspicion that he may have
He was convicted. Mengote committed a criminal act or is actually
contends that the weapon was not committing or attempting it. This
admissible evidence because it was simply cannot be done in a free
illegally seized, and therefore, the fruit society. This is not a police state where
of a poisonous tree. Yun man talaga order is exalted over liberty or, worse,
depensa mo, wala mang iba. personal malice on the part of the
The prosecution insists that the arresting officer may be justified in the
revolver was validly received in name of security.”
evidence because its seizure was
incidental to an arrest that was So even the SC gave a guideline. Kung alas
doubtless lawful, even admittedly tres ng umaga, madilim…ahh, puydi!
without warrant.
PEOPLE vs. EVARISTO
ISSUE: Is the evidence December 11, 1992
inadmissible?
FACTS: There was somebody who
HELD: YES. “The evidence is fired a pistol. So, there were 2
inadmissible. When Mengote was policemen who started chasing him.
arrested, he was not committing any And when they chased, they found 2
offense.” people in the corner and they started
The question is, What offense? asking these 2 people. Now, one of the
“What offense could possibly have 2 policemen saw that the guy’s side is
been suggested by a person ‘looking bulging. When they searched him,
from side to side’ and ‘holding his they found a gun. So he was arrested.
abdomen’ and in a place not exactly
forsaken? These are certainly not ISSUE: Whether there was a valid
sinister acts. And the setting of the warrantless search was valid.
arrest made them less so, if at all.” Eto!
Kaya nasabi ko, in determining stop HELD: When the police officers
and frisk, you have to look at the time, chased after somebody who fired a
the place. pistol and they came upon Evaristo,
“It might have been different if the visual observation that his side is
Mengote had been apprehended at an bulging along with the earlier report
ungodly hour and in a place where he of gunfire, as well as the peace officer's
had no reason to be, like a darkened professional instincts, are more than
alley at 3 o'clock in the morning. But sufficient to pass the test of the Rules.
he was arrested at 11:30 in the Consequently, under the facts, the
morning and in a crowded street firearms taken from Evaristo can be
shortly after alighting from a said to have been seized incidental to a
passenger jeep with his companion. lawful and valid arrest.
He was not skulking in the shadows
but walking in the clear light of day. So, that is the doctrine of Stop and Frisk.
There was nothing clandestine about
his being on that street at that busy
hour in the blaze of the noonday sun.”
MALACAT vs. COURT OF the arrestee with the means of

APPEALS, December 12, 1997 escaping or committing violence.
vis-à-vis MANALILI vs. COURT “While probable cause is not
OF APPEALS, October 9, 1997 required to conduct a "stop and frisk,"
it nevertheless holds that mere
HELD: “Rejecting his appeal, this suspicion or a hunch will not validate
Court held that the search was akin to a "stop and frisk." A genuine reason
a stop-and-frisk. The police had must exist, in light of the police
sufficient reason to stop Manalili, who officer's experience and surrounding
"had red eyes and was wobbling like a conditions, to warrant the belief that
drunk . . . [in] a popular hangout of the person detained has weapons
drug addicts," in order to investigate if concealed about him. Finally, a "stop-
he was actually "high" on drugs. The and-frisk" serves a two-fold interest:
situation verily called for a stop-and- (1) the general interest of effective
frisk.” crime prevention and detection, which
underlies the recognition that a police
MALACAT vs. COURT OF officer may, under appropriate
APPEALS circumstances and in an appropriate
G.R. No. 123595; December 12, manner, approach a person for
1997 purposes of investigating possible
criminal behavior even without
ISSUE: Distinguish stop and frisk probable cause; and (2) the more
from search incidental to a lawful pressing interest of safety and self-
arrest. preservation which permit the police
HELD: “We note that the trial officer to take steps to assure himself
court confused the concepts of a "stop- that the person with whom he deals is
and-frisk" and of a search incidental to not armed with a deadly weapon that
a lawful arrest. These two types of could unexpectedly and fatally be
warrantless searches differ in terms of used against the police officer.”
the requisite quantum of proof before
they may be validly effected and in
their allowable scope. SEARCH OF MOVING VEHICLES
“In a search incidental to a lawful
arrest, as the precedent arrest Another instance of a valid warrantless search
determines the validity of the is the search of moving vehicles. Because if the
incidental search, the legality of the vehicle is moving or mobile, and it contains
arrest is questioned in a large majority illegal/prohibited objects that is being
of these cases, e.g., whether an arrest transported and nandiyan na ang vehicle, it
was merely used as a pretext for would be absurd if you apply first for a search
conducting a search. In this instance, warrant because makakalayo na yung vehicle.
the law requires that there first be a
lawful arrest before a search can be Now, do you remember the most
made — the process cannot be controversial case of VALMONTE vs. DE VILLA?
reversed. At bottom, assuming a valid This is where the SC sustained the
arrest, the arresting officer may search constitutionality of checkpoints. But the
the person of the arrestee and the area guidelines here is that the checkpoints has
within which the latter may reach for a authority to stop the car and see anything
weapon or for evidence to destroy, without opening any compartments of it. So, the
and seize any money or property inspection is limited to a visual or ocular
found which was used in the inspection only. But if the checkpoints received a
commission of the crime, or the fruit of tip that there is a passenger, then it is allowed.
the crime, or that which may be used
as evidence, or which might furnish PEOPLE vs. MALMSTEDT
198 SCRA 401
circumstances, would be to sanction

FACTS: This happened in the impotence and ineffectiveness in law
Mountain Province involving a enforcement, to the detriment of
Caucasian. The NARCOM agents society.”
received a tip that a bus will pass from
Mt. Province and that there is a The case of MALMSTEDT was repeated in the
Caucasian passenger bringing with case of
him prohibited drugs. So, they
stopped the bus and found a PEOPLE vs. BAGISTA
Caucasian inside. So they approached 214 SCRA 53
him and asked him: “What is your
name? Can we see your passport?” FACTS: This also happened in Mt.
The Caucasian refused. Then during Province. The NARCOM received a
the inspection, the NARCOM agents tip that a woman riding in a bus from
opened his bag and found hashish. Baguio City has marijuana. She was
The same was found in the teddy bear. described as having curly hair and
So, he was charged with illegal short. So, when the bus passed
possession of prohibited drugs. through the checkpoint, they saw the
Malmstedt questioned the validity of woman which fit the description. The
the search. agent searched her and in her bag was
found marijuana. The bag and its
HELD: The warrantless search was contents were seized.
valid. “The receipt of information by
NARCOM that a Caucasian coming ISSUE: Was there a valid search?
from Sagada had prohibited drugs in
his possession, plus the suspicious HELD: The search was valid in
failure of Malmstedt to produce his accordance with the case of Malmstedt.
passport, taken together as a whole, “With regard to the search of moving
led the NARCOM officers to vehicles, this had been justified on the
reasonably believe that he was trying ground that the mobility of motor
to hide something illegal from the vehicles makes it possible for the
authorities. From these circumstances vehicle to be searched to move out of
arose a probable cause which justified the locality or jurisdiction in which the
the warrantless search that was made warrant must be sought.”
on the personal effects of Malmstedt. “This in no way, however, gives
In other words, the acts of the the police officers unlimited discretion
NARCOM officers in requiring him to to conduct warrantless searches of
open his pouch bag and in opening automobiles in the absence of probable
one of the wrapped objects found cause. When a vehicle is stopped and
inside said bag (which was discovered subjected to an extensive search, such
to contain hashish) as well as the two a warrantless search has been held to
(2) travelling bags containing two (2) be valid only as long as the officers
teddy bears with hashish stuffed conducting the search have reasonable
inside them, were prompted by or probable cause to believe before the
Malmstedt’s own attempt to hide his search that they will find the
identity by refusing to present his instrumentality or evidence pertaining
passport, and by the information to a crime, in the vehicle to be
received by the NARCOM that a searched.”
Caucasian coming from Sagada had “The NARCOM officers in the case
prohibited drugs in his possession. To at bar had probable cause to stop and
deprive the NARCOM agents of the search all vehicles coming from the
ability and facility to act accordingly, north at Acop, Tublay, Benguet in
including, to search even without view of the confidential information
warrant, in the light of such they received from their regular
informant that a woman having the PEOPLE vs. EXALA

same appearance as that of accused- 221 SCRA 494
appellant would be bringing
marijuana from up north. They HELD: But visual situation only
likewise have probable cause to search and if there is an information to excite
accused-appellant's belongings since that something is wrong, then you can
she fits the description given by the effect a search without warrant. This is
NARCOM informant.” the exception: if the vehicle is stopped
and extensively searched, it is because
of some probable cause which justifies
Let’s try to compare the case of Bagista with a reasonable belief that either a
the earlier case of AMINUDIN. It has a similar set motorist of the content of the vehicle is
of facts but this time, it involves marine vessel. an instrument in the commission of an
offense. The presumption stands that
PEOPLE vs. AMINUDIN they are regularly performing their
163 SCRA 402 duties.
FACTS: The NARCOM agenst in

Iloilo City received a report that a EVIDENCE IN PLAIN VIEW
vessel coming from Mindanao has Mr.
Aminudin carrying with him Another instance of a warrantless search is
marijuana. So, the NARCOM agents the search of evidence in plain view know as the
waited at the port for the vessel to plain view doctrine – when you stumble by
arrive. So they were looking for the accident across an object which is prohibited or
passenger and then they saw a man illegal. It would be absurd that you still have to
which fit the description of the require a search warrant, when it is actually there
suspect. They frisked him and when in front of you. This doctrine complements the
the maleta was opened, it contained other. And one of the cases where the SC
prohibited drugs. Subsequently, the explained the plain view doctrine is the case of
man was arrested.
PEOPLE vs. MUSA
HELD: There was no valid search 217 SCRA 597 [1995]
because the NARCOM has enough
time to secure a search warrant. There FACTS: The NARCOM team
are still 2 days before the vessel will conducted a buy-bust operation at the
arrive. They have all the time. In the appellant’s house who was alleged to
Malmstedt and Bagista, it was in the be selling marijuana. After the
bus and may pass by within 30 transaction took placed, the team went
minutes or 1 hour. inside the house and arrested the
appellant but unable to find the
Another difference is this: if you are the marked money.
suspect riding in a bus and you knew that there is Thereafter, 2 agents went to the
a checkpoint ahead, you can always ask the bus kitchen and noticed a cellophane
to stop and then baba ka. But in the case of ship, colored white and stripe hanging at
you cannot do that! Pagnaka-hearing ka na may the corner of the kitchen. They asked
checkpoint sa pier, will you ask the vessel to stop the appellant about its contents, but
and then talon ka dagat? That is absurd ‘no! So failing to get a response, they opened
when it comes to buses or other by-land vehicles, it and found dried marijuana leaves.
mas madaling makataas ang suspect. Unlike sa At the trial, the appellant
marine vessel. questioned the admissibility of the
plastic bag and the marijuana it
Another case where the SC laid down the rule contains but the trial court ruled that
reiterating the case of Valmonte is the 1993 case of: they are admissible.
HELD: Search was not valid, “Moreover, when the NARCOM

objects seized inadmissible in agents saw the plastic bag hanging in
evidence. The SC explained and one corner of the kitchen, they had no
clarified the meaning of plain view. clue as to its contents. They had to ask
Let us say that the plastic bag is the appellant what the bag contained.
apparent and you cannot see what is When the appellant refused to
inside, then you will go there to see it, respond, they opened it and found the
that is not plain view. marijuana. Even assuming then, that
“The warrantless search and the NARCOM agents inadvertently
seizure, as an incident to a suspect's came across the plastic bag because it
lawful arrest, may extend beyond the was within their "plain view," what
person of the one arrested to include may be said to be the object in their
the premises or surroundings under "plain view" was just the plastic bag
his immediate control. Objects in the and not the marijuana. The
"plain view" of an officer who has the incriminating nature of the contents of
right to be in the position to have that the plastic bag was not immediately
view are subject to seizure and may be apparent from the "plain view" of said
presented as evidence.” object. It cannot be claimed that the
“The "plain view" doctrine may plastic bag clearly betrayed its
not, however, be used to launch contents, whether by its distinctive
unbridled searches and indiscriminate configuration, its transparency, or
seizures nor to extend a general otherwise, that its contents are
exploratory search made solely to find obvious to an observer.”
evidence of defendant's guilt. The
"plain view" doctrine is usually
applied where a police officer is not CUSTOMS SEARCHES
searching for evidence against the
accused, but nonetheless inadvertently Another instance of a valid warrantless search
comes across an incriminating object.” is a search conducted under the customs and
“It has also been suggested that tariff code. When a vessel arrives from abroad,
even if an object is observed in "plain the customs agents board the vessel to look for
view," the "plain view" doctrine will smuggled items. Then can conduct warrantless
not justify the seizure of the object searches for the enforcement of customs laws.
where the incriminating nature of the
object is not apparent from the "plain
view" of the object. 47 Stated CONSENTED SEARCH
differently, it must be immediately
apparent to the police that the items Another instance of a valid warrantless search
that they observe may be evidence of a is a consented search because here, there is a
crime, contraband, or otherwise waiver. For example: I will go to your house and I
subject to seizure.” will tell you that we heard that there are illegal
“In the instant case, the appellant firearms inside your house and I have no
was arrested and his person searched warrant. But you let me in, “Okay lang, sige pasok
in the living room. Failing to retrieve ka and you search.” That is consented search.
the marked money which they hoped
to find, the NARCOM agents searched One of the interesting cases in consented
the whole house and found the plastic search is the case of:
bag in the kitchen. The plastic bag
was, therefore, not within their "plain PEOPLE vs. BURGOS
view" when they arrested the 144 SCRA 1
appellant as to justify its seizure. The
NARCOM agents had to move from NOTE: Do not confuse this case
one portion of the house to another with the one we discussed in Rule 113.
before they sighted the plastic bag.”
FACTS: There was a suspected looking for rebels, why are you
NPA, got arrested and there was an opening the drawers? There are no
interrogation, “Who are you rebels inside the drawers! Where the
companions?” “Mr. so and so.” So permission to enter a residence was
they went to this house and said that, given to search for rebels, it is illegal to
“Hoy! NPA ka man daw. We would like search the rooms therein for firearms
to search your house, pwede?” The wife without a search warrant.
did not object. They found firearms.
When the constitutionality of the
search was challenged, the contention SEARCHES UNDER
was, it was a consented search. EXIGENT/EXTRAORDINARY
CIRCUMSTANCES
HELD: It was not a consented
search. When a person remains silent, The last exception to the warrant exception
that is not consent. This is a would be searches during exigent or
constitutional right which cannot be extraordinary circumstances provided probable
lightly waived. There is no cause exists. Just like what happened during the
presumption that there is a waiver or 1987 and 1989 coup where the military made
that the consent was given by the some searches in suspected places. In that case,
accused simply because he failed to there is no need to obtain search warrants
object. You apply the rule that courts considering that during that time all the courts
indulge every reasonable presumption there in Manila were closed because of the coup
against waiver of constitutional rights. de etat. Such period is considered as
You cannot presume acquiescence in extraordinary circumstances.
the loss of fundamental constitutional
right. NOTE: This exception is a catch-all category
that encompasses a number of diverse situations.
One last case on consented search also What they have in common is some kind of
happened in Davao City. The case of emergency that makes obtaining a search warrant
impractical, useless, dangerous, or unnecessary.
VEROY vs. LAYAGUE Among these situations are danger of physical
210 SCRA 97 harm to the officer or destruction of evidence,
danger to a third person, driving while
FACTS: Atty. Paul Veroy was intoxicated, and searches in hot pursuit. Del
formerly regional director of the SSS. Carmen, Rolando V., Criminal Procedure for Law
He has a house in Skyline. At that Enforcement Personnel, 1987 Edition p. 150
time, they were at Manila. The (Footnote, People vs. Fernandez, 238 SCRA 174,
military received a report that his 182)
house is being used by the rebels; that
is where they meet. So they called up NOTE: Search based on probable cause under
Veroy through long distance. Mr. extraordinary circumstances, were upheld in
Veroy said, “Sige, bahala na kayo diyan.” People vs. Posadas, 188 SCRA 288 [1990];
The searching team started opening Valmonte vs. Villa, 178 SCRA 211 [1989]; People
drawers and they found guns. So vs. Maspil, G.R. No. 85177, August 20, 1990, citing
Veroy was charged for illegal Valmonte vs. Villa; People vs. Malmstedt, G.R.
possession of firearms. No. 91107, June 19, 1991; People vs. Sucro, G.R.
Veroy challenged the validity of No. 93239, March 18, 1991; People vs. Montilla,
the search. The defense was consented G.R. No. 123872, January, 30, 1998.
search.
SEC. 14. Motion to quash a
search warrant or to suppress
HELD: The search was not valid evidence; where to file. - A
although there was consent from motion to quash a search
warrant and/or to suppress
Veroy. The permission was to look for evidence obtained thereby may
rebels and not for firearms. If you are be filed in and acted upon only
by the court where the action in civil cases, there must also be provisional
has been instituted. If no
criminal action has been remedies in criminal cases.
instituted, the motion may be
filed in and resolved by the EXAMPLE: Let’s go first to civil cases:
court that issued search
warrant. However, if such court Suppose you borrowed money from me and you
failed to resolve the motion refused to pay. So, I’ll file a case against you.
and a criminal case is
subsequently filed in another
court, the motion shall be Q: Can I immediately run against your
resolved by the latter court. properties?
(n) A: Not yet because the case is still pending.
But if there is still sufficient property of the
debtor, there is no problem.
Now, Section 14 is a new provision. It was But suppose you start selling your properties
taken from the case of Malaloan and Bans. (People everyday. By the time I win the case, you may be
v. Bans, G.R. No. 104147) as poor as a rat. So I must do something. Under
Rule 57, I can ask the court to issue preliminary
Q: The judge will issue a search warrant. attachment. That is provisional remedy. Some of
Suppose the search warrant is improper, where your properties will be attached to prevent you
will you question the admissibility of the from disposing. It is now my security.
evidence… in the court which issued the
warrant? or in the court where the case is Q: Is that applicable in criminal cases?
pending? A: Of course. Just remember the rule, when
A: In the case of Malaloan, in either court. But you file a criminal case, there is a civil action
in the case of Bans, if there is already a case, all which is deemed instituted to recover civil
should be resolved in the court where the case is liability. The victim is interested for the civil
pending, otherwise there will be interference liability and so, he has to wait for the criminal
among the courts. case to end. But now even if the case is going on,
the accused is hiding his property one by one. He
When do you question the validity of the is trying to dispose. So, I will ask for the remedy
search? In illegal arrest, all defects surrounding of preliminary attachment in criminal cases.
the arrest should be raised before the
arraignment, otherwise the defects are deemed But in order that Rule 127 will apply, the
cured because there was a waiver. condition is, the offended party has not waived
the civil liability or has not reserved.
But in illegal search, such rule does not apply.
You may raise such issue even after arraignment. SECTION 1. Availability of
The waiver only applies on the illegality of arrest, provisional remedies. – The
provisional remedies in civil
and does not extend to searches. (People vs. actions, insofar as they are
Aruta) applicable, may be availed of in
connection with the civil action
deemed instituted with the criminal
action. (1a)
Rule 127 The provisional remedies in civil actions are

PROVISIONAL REMEDIES also available in criminal actions. You can find
them in Rule 57 to 61. The most famous of them is
IN CRIMINAL CASES the remedy of preliminary attachment. So, if there
is attachment in civil cases, there is also in
criminal cases.
The most extensive discussion in provisional
remedies is when we discuss provisional
remedies and special civil actions in civil SEC. 2. Attachment.– When
procedure. The main rules are from Rule 57 to 61. the civil action is properly
instituted in the criminal
The concept is, if there are provisional remedies action as provided in Rule 111,
the offended party may have the from the issuance of a

property of the accused provisional remedy in the case.
attached as security for the
satisfaction of any judgment x x x x x
that may be recovered from the
accused in the following cases:
That is the end of review on criminal
(a) When the accused is procedure.
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
(d) When the accused resides

outside the Philippines. (2a)
So, you can avail of attachment upon filing of

the case or it is pending in court provided there is
no waiver or reservation of the civil action and
there should be the presence of any of the four (4)
grounds.
Now, you try to compare the grounds in

attachment in civil cases with the grounds in
criminal cases. If you read Rule 57, the grounds
are almost the same.
In civil cases, the defendant can ask for

damages in case of an improper attachment made
by the plaintiff, kaya nga may attachment bond
eh to answer for damages.
Q: Now in criminal cases, can the accused

claim for damages for illegal or improper
attachment under Rule 127?
A: YES, the same in civil cases. And that is
confirmed in Rule 119, Section 11 [b]:
RULE 119, SEC. 11. Order of

trial. – The trial shall
proceed in the following order:
x x x x x
(b) The accused may present

evidence to prove his defense
and damages, if any, arising,

Inigo Crimpro Notes

Uploaded by

Copyright:

Available Formats

Inigo Crimpro Notes

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Inigo Crimpro Notes

Uploaded by

Copyright:

Available Formats

Iñigo Notes in Criminal Procedure |1

BACKGROUND ON CRIMINAL emphasis on the government’s role. The

SYSTEMS OF PHILIPPINE CRIMINAL Q: What are some of the accusatorial aspects

The area of authority of said court is found in

LAW ON JURISDICTION IN CRIMINAL CASES Section 2. Territorial

Let us now go over the jurisdiction of the COURT OF APPEALS (CA)

hereafter be exclusively taken property through criminal

1. Libel – Klaro sa Article 360, RPC na RTC, SANDIGANBAYAN

foundations; members of Congress; members of ISSUE: Was the crime of murder

LACSON vs. EXECUTIVE

instituted? new rules, some cases triable by the MTC may

SECTION 1. Institution For example in the RTC, more than 6 years,

However in 1983 in the case of Francisco vs.

The institution of the ZALDIVIA vs. REYES SR.

the name of the People of writing charging a person

The complaint contemplated in Section 2

province, is known in Spanish as “DENUNCIA” offended party cannot

above shall be brought PEOPLE vs. RAMOS

prosecutor had not determined the The offenses of

criminal prosecution without including the guilty

complaint-affidavit was attached to the Q: Is the accusation “mang-aagaw ng asawa

Last paragraph, Section HELD: “The institution of the

Q: Can a case of slander be filed in court Q: When is a complaint or information

to exercise utmost care and diligence ISSUE: Was there a murder?

FACTS: The accused here killed PEOPLE vs. QUITLONG

EXAMPLE: DIRECT ASSAULT. The SC said HELD: NO. “Habitual delinquency,

particular offense (attempted robbery of habitual delinquency, no less than

and therefore must be alleged. Failure of the crime.

Q: But in DANGEROUS DRUGS ACT, iba EXAMPLE. ROBBERY IN AN INHABITED

is a material ingredient Section 10, UNLESS the date of the commission

which it may be offended party.

Let’s go to the next rule – name of the PEOPLE vs. UBA

when the law prescribes a are accusing somebody of 2 homicides based on

The complaint or information must charge EXAMPLE: SPECIAL COMPLEX CRIMES.

SEC. 14. Amendment or Q: What happens if the accused has already

In civil procedure, formal amendment – no Q: How do you determine whether the

amendment is as to form or substance? been violated, they being conclusions

HELD: The first paragraph included in the original charge,

(c) Where an offense is necessary to prosecute and punish the

several places. inconsequential.

Q: Where should the case of kidnapping or Q: ESTAFA or MALVERSATION. The

Q: Inday stole a property in Digos. It was PEOPLE vs. GOROSPE

Q: Where shall the criminal action for SEC. 16. Intervention

pursuant to Rule 111, the 156 SCRA 325

punishable, regardless of whether or

complaint may be filed by

Q: Suppose there was no mention of any

During the pendency of FACTS: The case of Caños was

Q: However, if I file an action based on quasi- RUFO MAURICIO

ISSUE: What will happen to the

“The death of the accused during act or omission charged in

of civil liability arising from action for damages arising therefrom

SEC. 4. Effect of death pendency of the criminal action shall extinguish

or omission subject of the The concept of prejudicial question is the exact

So, the government through the investigating

The purpose of preliminary investigation is to

Q: Is Preliminary Investigation required in all

amended information for murder.”