CrimProc Law Memory Aid

San Beda College of Law
135
MEMORY AID IN REMEDIAL LAW
CRIMINAL PROCEDURE
Criminal Jurisdiction – power of the 2. Determined by the law in force

State to try and punish a person for a at the time of the institution of
violation of its penal laws. the criminal action. ONCE
VESTED, IT CANNOT BE
REQUISITES FOR A VALID EXERCISE OF WITHDRAWN BY:
CRIMINAL JURISDICTION: a) subsequent valid amendment
1. The offense, by virtue of the of the information; or
imposable penalty OR its nature, b) a subsequent statutory
is one which the court is by law amendment of the rules of
authorized to take cognizance jurisdiction, UNLESS the
of, (jurisdiction over the amendatory law provides
SUBJECT MATTER). otherwise.
2. The offense must have been
committed within its territorial
jurisdiction, (jurisdiction over RULE 110
the TERRITORY). PROSECUTION OF OFFENSES
3. The person charged with the
offense must have been brought Section 1. Institution of criminal
to its presence for trial, forcibly actions.
by warrant of arrest or upon his
voluntary submission to the For offenses where a preliminary
court, (jurisdiction over the investigation is required - by filing the
PERSON OF THE ACCUSED). complaint with the proper officer for the
purpose of conducting the requisite
JURISDICTION JURISDICTION preliminary investigation.
OVER THE OVER THE PERSON
SUBJECT MATTER OF THE ACCUSED Preliminary investigation is REQUIRED for
Derived from the May be acquired by offenses where the penalty prescribed
law. It can never be consent of the by law is at least 4 years, 2 months and
acquired solely by accused or by waiver 1day without regard to fine (Rule 112,
consent of the of objections. Sec. 1 Par.2).
accused.
Objection that the If he fails to make his For all other offenses - by filing the
court has no objection in time, he complaint or information directly with
jurisdiction of the will be deemed to the Municipal Trial Courts and Municipal
subject matter may have waived it. Circuit Trial Courts, or the complaint
be made at any stage with the office of the prosecutor.
of the proceeding,
and the right to DOES NOT APPLY to offenses which are
make such objection subject to summary procedure.
is never waived.
Effect of institution of the criminal
DETERMINATION OF CRIMINAL action:
JURISDICTION: It interrupts the running of the period of
1. Determined by the allegations in prescription of the offense charged
the complaint or information not unless otherwise provided by special
by the results of proof or by the laws.
trial court’s appreciation of the
evidence presented.
REMEDIAL LAW COMMITTEE

 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
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Remedies of the offended party if the motion to quash on that ground has
prosecutor refuses to file an been denied.
information:
1. file an action for mandamus, in Section 2. Form of the complaint or
case of grave abuse of information.
discretion;
2. lodge a new complaint before FORM
the court having jurisdiction 1. In writing;
over the offense; 2. In the name of the People of the
3. take up the matter with the Philippines; and
Secretary of Justice in 3. Against all persons who appear
accordance with the Rev. to be responsible for the offense
Administrative Code; involved.
4. institute an administrative Section 3. Complaint defined.
charges against the erring
prosecutor; and A Complaint is:
5. file criminal action against the 1. a sworn written statement;
prosecutor with the 2. charging a person with an
corresponding civil action for offense;
damages. 3. subscribed by the offended
party, any peace officer or other
May Injunction Issue to Restrain public officer charged with the
Criminal Prosecution? enforcement of the law violated.
GENERAL RULE: Criminal prosecutions
may NOT be restrained or stayed by The complaint mentioned in this section
injunction, preliminary or final. The refers to one filed in court for the
reason being, public interest requires commencement of a criminal
that criminal acts be immediately prosecution for violation of a crime,
investigated and prosecuted for the usually cognizable by municipal trial
protection of the society (Domingo vs. courts as well as to a complaint filed by
Sandiganbayan, 322 SCRA 655). an offended party in private crimes or
EXCEPTIONS: those which cannot be prosecuted de
1. To afford adequate protection to the officio.
constitutional rights of the accused;
2. When necessary for the orderly REQUISITES OF A COMPLAINT:
administration of justice or to avoid 1. it must be in writing and under
oppression or multiplicity of actions; oath;
3. When there is a prejudicial question 2. it must be in the name of the
which is subjudice; People of the Philippines;
4. When the acts of the officer are 3. it must charge a person with an
without or in excess of authority; offense; and
5. When the prosecution is under an 4. it must be subscribed by the
invalid law, ordinance or regulation; offended party, by any peace
6. When double jeopardy is clearly officer or public officer charged
apparent; with the enforcement of the law
7. When the court had no jurisdiction violated.
over the offense;
8. When it is a case of persecution PERSONS WHO CAN FILE A COMPLAINT
rather than prosecution; 1. Offended party
9. When the charges are manifestly 2. Any peace officer
false and motivated by lust for 3. Other public officer charged
vengeance; and with the enforcement of the law
10. When there is clearly no prima facie violated
case against the accused and a

137
ex. Internal Revenue Officer for prosecuted under the direction and
violation of the NIRC, custom control of the prosecutor.
agents with respect to violations
of the Tariff and Customs Code A PRIVATE PROSECUTOR may be
authorized to prosecute a criminal
Section 4. Information defined. action subject to the following
conditions:
An Information is: 1. the public prosecutor has a
1. an accusation in writing; heavy work schedule, or there is
2. charging a person with an no public prosecutor assigned in
offense; the province or city;
3. subscribed by the prosecutor and 2. the private prosecutor is
filed with the court. authorized IN WRITING by the
Regional State Prosecutor (RSP),
REQUISITES OF AN INFORMATION Provincial or City Prosecutor;
1. it must be in writing; 3. the authority of the private
2. it must charge a person with an prosecutor must be approved by
offense; the court;
3. it must be subscribed by the 4. the private prosecutor shall
fiscal; and continue to prosecute the case
4. it must be filed in court. until the end of the trial unless
the authority is withdrawn or
COMPLAINT INFORMATION otherwise revoked by the RSP,
Subscribed by the Subscribed by the Provincial or City Prosecutor;
offended party, any fiscal and
peace officer or other (indispensable 5. In case of the withdrawal or
officer charged with requirement) revocation of the authority of
the enforcement of the private prosecutor, the same
the law violated must be approved by court.
it may be filed either it is filed with the (Memo Circ. No. 25, April 26,
in court or in the court 2002, Regarding Amendment to
prosecutor’s office Sec. 5, Rule 110)
must be made under need not be under
oath oath In appeals before the CA and the SC, it is
only the Solicitor General that is
 Prosecution in the RTC are always authorized to bring and defend actions in
commenced by information, EXCEPT: behalf of the People of the Philippines
1. in certain crimes against chastity (People vs. Nano, 205 SCRA 155).
(concubinage, adultery,
seduction, abduction, acts of In all cases elevated to the
lasciviousness); and Sandiganbayan and from the
2. defamations imputing any of the Sandiganbayan to the SC, the Office of
aforesaid offenses wherein a the Ombudsman, through its Special
sworn written complaint is Prosecutor shall represent the People of
required in accordance with the Philippines, EXCEPT in cases filed
section 5 of this Rule. pursuant to E.O. Nos. 1, 2, 14 and 14-A,
issued in 1986 (Sec. 4, RA 8249).
Section 5. Who must prosecute
criminal actions. PROSECUTION OF CRIMES AGAINST
FULL DISCRETION AND CONTROL OF CHASTITY
THE PROSECUTOR
All criminal actions commenced by a WHO MAY PROSECUTE
complaint or information shall be 1. Concubinage and adultery – only by
the offended spouse who should

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have the status, capacity, and legal c) if the offended woman is of age
representation at the time of filing and not otherwise incapacitated,
of the complaint, regardless of age; only she can extend a valid
2. Seduction, Abduction and Acts of pardon.
Lasciviousness – prosecuted
exclusively and successively by the The pardon refers to pardon BEFORE
following persons in this order: filing of the criminal complaint in court.
a) by the offended woman Pardon effected after the filing of the
b) by the parents, grandparents or complaint in court does NOT prohibit the
legal/judicial guardians in that continuance of the prosecution of the
successive order offense EXCEPT in case of marriage
c) by the State in the exercise of between the offender and the offended
the right of parens patriae, party.
when the offended party dies or
becomes incapacitated before PARDON vs. CONSENT
she could file the complaint and Consent refers to future acts, while
she has no known parents, pardon refers to past acts of adultery.
grandparents or guardian. The importance of this distinction is that
3. A defamation imputing to a person consent, in order to absolve the accused
any of the foregoing crimes of from liability, is sufficient even if
concubinage, adultery, seduction, granted only to the offending spouse,
abduction, rape or acts of whereas pardon must be extended to
lasciviousness can be prosecuted both offenders
only by the party or parties defamed
(Article 360, last par., Revised Penal The SUBSEQUENT MARRIAGE between the
Code). offended party and the accused
extinguishes the criminal liability of the
If the offended party is of legal age AND latter, together with that of the co-
does not suffer from physical or mental principals, accomplices and accessories.
disability, she alone can file the EXCEPT:
complaint to the exclusion of all others. 1. where the marriage was invalid
or contracted in bad faith in
WHO CAN GIVE PARDON order to escape criminal
1. Concubinage and adultery - only liability,
the offended spouse, not otherwise 2. in “private libel”
incapacitated, can validly extend the 3. in multiple rape, insofar as the
pardon or consent contemplated other accused in the other acts
therein. of rape respectively committed
2. Seduction, abduction, and acts of by them are concerned.
lasciviousness –
a) the offended minor, if with  The ACQUITTAL OR DEATH of one of
sufficient discretion, can validly the accused in the crime of adultery
pardon the accused by herself if does not bar the prosecution of the
she has no parents or where the other accused (People vs. Topiño, et al.,
accused is her own father and 35 Phil. 901). HOWEVER, the death of
her mother is dead; the offended spouse before the filing of
b) the parents, grandparents or the complaint for adultery bars further
guardian of the offended minor, prosecution, BUT if the offended spouse
in that order, CANNOT extend a died after the filing of the corresponding
valid pardon in said crimes complaint, his death will NOT prevent
WITHOUT the conformity of the the proceeding from continuing to its
offended party, even if the ultimate conclusion.
latter is a minor;

139
 DESISTANCE of complainant does not Section 8. Designation of the offense.

bar criminal prosecution but it operates
as waiver of the right to pursue civil The information or complaint must state
indemnity. or designate the following whenever
possible:
Section 6. Sufficiency of complaint or 1. The designation of the offense
information. given by the statute.
2. The statement of the acts or
CONTENTS OF A VALID COMPLAINT OR omissions constituting the
INFORMATION offense, in ordinary, concise and
1. Name of the accused, including particular words.
any appellation or nickname 3. The specific qualifying and
An error in the name of the aggravating circumstances must
accused is not reversible as long be stated in ordinary and concise
as his identity is sufficiently language.
established and this defect is
curable at any stage of the The qualifying and aggravating
proceedings as the insertion of circumstances cannot be appreciated
the real name of the accused is even if proved UNLESS alleged in the
merely a matter of form. information.
2. The designation of the offense
3. The acts or omissions In case of allegation of aggravating
complained of as constituting circumstance of HABITUAL
the offense DELINQUENCY, it should not be generally
4. The name of the offended party averred. The information must specify
5. The approximate time of the the requisite data regarding:
commission of the offense 1. the commission of the crimes;
6. The place wherein the offense 2. the last conviction or release;
was committed 3. the other previous conviction or
release of the accused.
PURPOSE OF THE RULE
1. To inform the accused of the ALLEGATIONS PREVAIL OVER
nature and cause of accusation DESIGNATION OF THE OFFENSE IN THE
against him. INFORMATION
2. To notify the defendant of the
criminal acts imputed to him so It is not the designation of the offense in
that he can duly prepare his the complaint or information that is
defense. controlling (People vs. Samillano, 56
SCRA 573); the facts alleged therein and
Substantial defect in the information not its title determine the nature of the
cannot be cured by evidence that would crime (People vs. Magdowa, 73 Phil.
jeopardize the accused’s right to be 512).
informed of the true nature of the
offense he is being charged with The accused may be convicted of a
crime more serious than that named in
Section 7. Name of the accused. the title or preliminary part if such
crime is covered by the facts alleged in
PURPOSE the body of the information and its
The manifest intent of the provision is to commission is established by evidence
make a specific identification of the (Buhat vs. Court of Appeals, 265 SCRA
person to whom the commission of an 701).
offense is being imputed.

140
Limitation on the rule that an accused Section 10. Place of commission of the
may be convicted of a crime which is offense
more serious than that named in the
title so long as the facts alleged the PURPOSE
more serious offense: To show territorial jurisdiction.
An accused could not be convicted under Section 11. Date of commission of the
one act when he is charged with a offense
violation of another if the change from
one statute to the other involves: GENERAL RULE:
a) a change in the theory of the It is NOT required that the complaint or
trial; information state with particularity the
b) requires of the defendant a PLACE where the crime was committed
different defense; or and the DATE of the commission of the
c) surprises the accused in any way crime.
(U.S. vs. Panlilio, 28 Phil. 603) EXCEPTION:
. If the PLACE/DATE of the commission of
Section 9. Cause of the accusation. the offense constitutes an essential
element of the offense.
PURPOSE
1. to enable the court to pronounce Section 12. Name of the offended
proper judgment; party
2. to furnish the accused with such
a description of the charge as to GENERAL RULE: The offended party
enable him to make a defense; must be designated by name, nickname,
3. as a protection against further any other appellation or by fictitious
prosecution for the same cause. name.
EXCEPTION: In crimes against property,
RULE ON NEGATIVE AVERMENTS the description of the property must
GENERAL RULE: Where the statute supplement the allegation that the
penalizes generally the acts therein owner is unknown.
defined and is intended to apply to all
persons indiscriminately, the information Section 13. Duplicity of offense.
is sufficient even if does not allege that
the accused falls within the excepted There is duplicity when the complaint or
situation, for then the complete information charges 2 or more DISTINCT
definition of the offense is entirely or DIFFERENT offenses.
separable from the exceptions and can
be made without reference to the latter. GENERAL RULE:
In this case, the exception is a matter of A complaint or information must charge
defense which the accused has to prove. only one offense.
EXCEPTIONS:
EXCEPTION: Where the statute alleged 1. Complex crimes
to have been violated applies only to a 2. Special Complex crimes
specific class of persons and to special 3. Continuous crimes or delicto
conditions, the information must allege continuado
facts establishing that the accused falls 4. Crimes of which another offense
within the specific class affected and not is an ingredient
those affected from the coverage of law.
Where negative averment is an essential Should there be duplicity of offense in
element of the crime, it must be proved. the information, the accused must move
for the quashal of the same BEFORE
arraignment

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3. The accused would not be placed

arraignment, otherwise, he is deemed to in double jeopardy.
have waived the objection and maybe AMENDMENT SUBSTITUTION OF
found guilty of as many offenses as those INFORMATION OR
charged and proved during the trial. COMPLAINT
May involve either Involves substantial
Section. 14. Amendment or formal or substantial change from the
substitution. changes original charge
Amendment before Substitution of
KINDS OF AMENDMENT the plea has been information must be
1. BEFORE THE PLEA – covers both entered can be with leave of court as
substantial and formal effected without the original
amendment, WITHOUT leave of leave of court. information has to be
court. dismissed.
2. AFTER THE PLEA – covers only Amendment is only Another preliminary
formal amendment provided: as to form, there is investigation is
a) leave of court is obtained no need for another entailed and the
b) such amendment is not preliminary accused has to plead
prejudicial to the rights of investigation and the anew to the new
the accused. retaking of the plea information
EXCEPT when a fact supervenes of the accused.
which changes the nature of the
crime charged in the information An amended Requires or
or upgrades it to a higher crime, information refers to presupposes that the
in which case, there is a need the same offense new information
for another arraignment of the charged in the involves a different
accused under the amended original information offense which does
information. or to an offense not include or is not
which necessarily necessarily included
An amendment is only in form where it includes or is in the original
neither affects nor alters the nature of necessarily included charge, hence the
the offense charged OR where the in the original accused cannot claim
charge does not deprive the accused of a charge, hence double jeopardy.
fair opportunity to present his defense substantial
OR where it does not involve a change in amendments to the
the basic theory of the prosecution. information after the
plea has been taken
Substitution – If it appears at anytime cannot be made over
before judgment that a mistake has been the objection of the
made in charging the proper offense, the accused, for if the
court shall dismiss the original complaint original information
or information upon the filing of a new would be withdrawn,
one charging the proper offense, the accused could
provided the accused shall not be placed invoke double
in double jeopardy. jeopardy.
Limitation to the rule on substitution: VARIANCE BETWEEN INDICTMENT AND

1. No judgment has yet been PROOF (Situations Contemplated)
rendered. 1. When the offense proved is less
2. The accused cannot be convicted serious than, and is necessarily
of the offense charged or of any included in, the offense charged,
other offense necessarily in which case the defendant
included therein. shall be convicted of the offense
proved.

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2. When the offense proved is more

serious than and includes the
offense charged, in which case 2. Complex Crimes
the defendant shall be convicted  Where the crime charged is a
of the offense charged. complex crime, the RTC of
3. When the offense proved is any province in which any
neither included in, nor does it one of the essential
include, the offense charged and elements of such complex
is different therefrom, in which crime had been committed
case the court should dismiss the has jurisdiction to take
action and order the filing of a cognizance of the offense.
new information charging the 3. Continuing Offense - is one
proper offense. where the elements of which
occur in several places, (unlike a
The third situation set forth above is LOCAL OFFENSE - one which is
substitution of information under Section fully consummated in one place)
14, Rule 110.  The venue is in the place
where one of its essential
Section 15. Place where action is to be elements was consummated.
instituted. 4. Piracy – The venue of piracy,
unlike all other crimes, has no
PURPOSE territorial limits.
The purpose being not to compel the 5. Libel – The action may be
defendant to move to, and appear in a instituted at the election of the
different court from that of the territory offended or suing party in the
where the crime was committed, as it province or city:
would cause him great inconvenience in a) where the libelous article is
looking for his witnesses and other printed and first published;
evidence in another place (Beltran vs. b) if one of the offended
Ramos, 96 Phil. 149). parties is a private
individual, where said
VENUE IS JURISDICTIONAL private individual actually
Venue is jurisdictional as the court has resides at the time of the
no jurisdiction to try an offense commission of the offense;
committed outside its territorial c) if the offended party is a
jurisdiction. It cannot be waived, or public official, where the
changed by agreement of the parties, or latter holds office at the
by the consent of the defendant. time of the commission of
the offense.
GENERAL RULE: Subject to existing 6. In exceptional circumstances – to
laws, in all criminal prosecutions, the ensure a fair trial and impartial
action must be instituted and tried in inquiry. The SC shall have the
the courts of the municipality or power to order a change of
territory where the offense was venue or place of trial to avoid
committed or any of its essential miscarriage of justice (Section
ingredients occurred. 5[4], Article VIII, 1987
Constitution).
EXCEPTIONS TO THE RULE OF VENUE:
1. Felonies under Art. 2 of the Section 16. Intervention of the
Revised Penal Code offended party in criminal action.
 Shall be cognizable by the
proper court where the GENERAL RULE: Offended party has the
criminal action was first right to intervene by counsel in the
filed. prosecution of the criminal action,

143
where the civil action for recovery of Civil Code which can be prosecuted even
civil liability is instituted in the criminal without reservation.
action pursuant to Rule 111.  In BP 22 cases, no reservation to file
the civil action separately shall be
EXCEPTIONS: allowed.
1. Where from the nature of the
crime and the law defining and RULES ON FILING FEES OF CIVIL ACTION
punishing it, NO civil liability DEEMED INSTITUTED WITH THE
arises in favor of the offended CRIMINAL ACTION
party; and 1. NO filing fees are required for
2. Where the offended party has amounts of ACTUAL DAMAGES,
waived his right to civil EXCEPT with respect to criminal
indemnity OR has expressly actions for violation of BP 22, in
reserved his right to institute a which case, the offended party
civil action OR has already shall pay in full the filing fees
instituted said action. based on the face value of the
check as the actual damages;
2. Damages other than actual
RULE 111 (moral, exemplary and other
PROSECUTION OF CIVIL ACTIONS damages) if specified in the
complaint or information, the
Section 1. Institution of criminal and corresponding filing fees shall be
civil actions. paid, otherwise the court will
not acquire jurisdiction over
GENERAL RULE: such damages;
When a criminal action is instituted, the 3. Where moral, exemplary and
civil action for the recovery of civil other damages are NOT specified
liability arising from the offense shall be in the complaint or information,
deemed instituted with the criminal the grant and amount thereof
action. are left to the sound discretion
EXCEPTIONS: of the trial court, the
1. when the offended party WAIVES corresponding filing fees need
the civil action not be paid and shall simply
2. when the offended party constitute a first lien on the
RESERVES his right to institute a judgment.
separate civil action
3. when offended party INSTITUTES  Counterclaims, cross-claims, third
A CIVIL ACTION PRIOR to the party complaints are no longer allowed
criminal action. in a criminal proceeding. Any claim
which could have been the subject
WHEN RESERVATION SHALL BE MADE thereof may be litigated in a separate
1. before the prosecution starts to civil action.
present its evidence and
2. under circumstances affording Section 2. When separate civil action is
the offended party to a suspended.
reasonable opportunity to make
such reservation. PRIMACY OF CRIMINAL ACTION OVER
CIVIL ACTION
 ONLY the civil liability arising from the 1. After the filing of the criminal
crime charged as a felony is now deemed action, the civil action which has
instituted. Civil liability arising from been reserved CANNOT be
other sources of obligations are no instituted until final judgment
longer deemed instituted like those has been rendered in the
under Article 32, 33, 34 and 2176 of the criminal action.

144
2. If the civil action is instituted  Where the criminal case was dismissed
BEFORE the filing of the criminal before trial because the offended party
action and the criminal action is executed an affidavit of desistance, the
subsequently commenced, the civil action thereof is similarly
pending civil action shall be dismissed.
suspended until final judgment
in the criminal action has been Section 3. When civil action may
rendered. proceed independently.
EXCEPTIONS:
a) In cases of independent civil  The institution of an independent civil
actions based upon Arts. 32, 33, action against the offender under
34 and 2176 of the Civil Code; Articles 32, 33, 34 and 2176 of the Civil
b) In cases where the civil action Code may proceed independently of the
presents a prejudicial question; criminal case and at the same time
c) In cases where the civil action is without suspension of either proceeding.
consolidated with the criminal
action; and  Recovery of civil liability under Articles
d) Where the civil action is not one 32, 33, 34 and 2176 of the Civil Code
intended to enforce the civil arising from the same act or omission
liability arising from the offense. may be prosecuted separately even
without a reservation. The reservation
ACQUITTAL IN A CRIMINAL CASE DOES and waiver herein refers only to the civil
NOT BAR THE FILING OF THE CIVIL action for the recovery of civil liability
CASE WHERE: arising from the offense charged (DMPI
1. the acquittal is based on Employees Credit Coop vs. Velez, G.R.
reasonable doubt, if the civil No. 129282, Nov. 29, 2001).
case has been reserved
2. the decision contains a PURPOSE
declaration that the liability of To prevent the offended party from
the accused is not criminal but recovering damages twice for the same
only civil in nature and act or omission.
3. the civil liability is not derived
from or based on the criminal Section 4. Effect of death on civil
act of which the accused is actions.
acquitted (Sapiera vs. Court of
Appeals, 314 SCRA 370). AFTER arraignment and during the
pendency of the criminal action -
 Extinction of the penal action does not extinguishes the civil liability arising
carry with it the extinction of the civil from the delict.
action, UNLESS the extinction proceeds
from a declaration in a final judgment BEFORE arraignment - the case shall be
that the fact from which the civil DSMISSED without prejudice to any civil
liability might arise did not exist. action the offended party may file
against the estate of the deceased.
 The extinction of the civil liability
refers exclusively to civil liability arising  However, the independent civil action
from crime; whereas, the civil liability instituted under Section 3 of this Rule or
for the same act considered as a quasi- which thereafter is instituted to enforce
delict is not extinguished even by a liability arising from other sources of
declaration in the criminal case that the obligation may be continued against the
criminal act charged has not happened estate or legal representative of the
or has not been committed by the accused after proper substitution or
accused. against said estate, as the case may be.

145
Section 7. Elements of prejudicial and should be held for trial. (Sec. 1,

question. Rule 112)
Prejudicial Question - that which arises Preliminary Investigation is required to

in a case, the resolution of which is the be conducted BEFORE the filing of a
logical antecedent of the issue involved complaint or information for an offense
therein, and the cognizance of which where the penalty prescribed by law is
pertains to another tribunal. It must be at least 4 years, 2 months and 1 day
determinative of the case before the without regard to the fine.
court but the jurisdiction to try and
resolve the question must be lodged in There is NO right of preliminary
another court or tribunal. investigation under Section 7, Rule 112
when a person is LAWFULLY arrested
Rationale: to avoid two conflicting unless there is a waiver of the provisions
decisions. of Article 125 of the Revised Penal Code.
ELEMENTS OF A PREJUDICIAL HOWEVER, the accused can ask for

QUESTION Preliminary Investigation in the following
1. The civil action must be cases:
instituted prior to the criminal 1. if a person is arrested, he can
action. ask for preliminary investigation
2. The civil action involves an issue BEFORE the filing of the
similar or intimately related to complaint/information BUT he
the issue raised in the criminal must sign a waiver in accordance
action. with Article 125, RPC.
3. The resolution of such issue 2. AFTER the filing of the
determines whether or not the information/complaint, the
criminal action may proceed. accused may, within 5 days from
the time he learns of its filing
WHERE TO FILE PETITION FOR ask for preliminary investigation.
SUSPENSION BY REASON OF
PREJUDICIAL QUESTION PURPOSES
1. Office of the prosecutor; or 1. to determine whether a crime
2. court conducting the preliminary has been committed and
investigation; or whether there is probable cause
3. court where the criminal action to believe that the accused is
has been filed for trial at any guilty thereof;
time before the prosecution 2. to preserve evidence and keep
rests. the witnesses within the control
of the State;
3. to determine the amount of bail,
RULE 112 if the offense is bailable.
PRELIMINARY INVESTIGATION
PRELIMINARY INVESTIGATION:
Section 1. Preliminary Investigation PERSONAL STATUTORY RIGHT
defined; when required. The right to preliminary investigation is
a personal right covered by statute and
Preliminary Investigation - is an inquiry may be waived expressly or by
or proceeding to determine whether implication.
there exists sufficient ground to
engender a well-founded belief that a Absence of preliminary investigation
crime has been committed and that the does not affect the jurisdiction of the
respondent is probably guilty thereof, court or invalidate the information if no
objection was raised by the accused.

146
REMEDIES OF THE ACCUSED IF THERE Filing of the complaint

WAS NO PRELIMINARY INVESTIGATION accompanied by the affidavits
1. Refuse to enter a plea upon and supporting documents.
arraignment and object to
further proceedings upon such
ground Within 10 days after the filing, the
2. Insist on a preliminary investigating officer shall either
investigation dismiss or issue subpoena.
3. File a certiorari, if refused
4. Raise lack of preliminary
If subpoena is issued,
investigation as error on appeal
respondent shall submit a
5. File for prohibition counter-affidavit and other
supporting documents within 10
As preliminary investigation is NOT a days from receipt thereof.
part of the trial, the dismissal of the
case by the investigator will not
constitute double jeopardy and will not Hearing (optional). It shall be held
bar the filing of another complaint for within 10 days from submission of
the same offense, but if re-filed, the counter-affidavits or from the
accused is entitled to another expiration of the period of their
preliminary investigation (U.S. vs. submission.
Marfori, 35 Phil. 666).
Section 2. Officers authorized to Resolution of

conduct preliminary investigation. investigating prosecutor
(Sec. 4 & 5).
PERSONS AUTHORIZED TO CONDUCT A If respondent cannot be subpoenaed, or
PRELIMINARY INVESTIGATION if subpoenaed but does not submit his
1. Provincial or city fiscal and their counter-affidavit within 10 days,
assistants investigating officer shall resolve the
2. Judges of the MTC and MCTC complaint based on the evidence
3. National and regional state presented by the complainant.
prosecutors
4. Such other officers as may be RIGHTS OF RESPONDENT IN A
authorized by law such as: the PRELIMINARY INVESTIGATION
COMELEC, Ombudsman and 1. to submit counter-affidavits
PCGG 2. to examine evidence submitted
by the complainant
3. to be present in the clarificatory
hearing.
Section 3. Procedure The Rules do not require the presence of

the respondent in the Preliminary

147
Investigation, what is required is that he there is necessity of placing the

be given the opportunity to controvert respondent under immediate custody, in
the evidence of the complainant by order not to frustrate the ends of
submitting counter-affidavits. justice.
Section 6. When warrant of arrest may CONDITIONS BEFORE THE

issue INVESTIGATING MUNICIPAL TRIAL
Probable Cause - presupposes a JUDGE CAN ISSUE A WARRANT OF
reasonable ground for belief in the ARREST (Herrera, p. 282)
existence of facts warranting the 1. Have examined in writing and
proceedings complained of; under oath the complainant and
- an apparent his witnesses by searching
state of facts found to exist upon questions and answers; searching
reasonable inquiry which would induce a questions and answers – such
reasonably intelligent and prudent man questions as may have the
to believe that the accused person had tendency to show the
committed the crime charged. commission of the crime and the
perpetrator thereof;
If the judge finds probable cause, he 2. Be satisfied that a probable
shall issue a warrant of arrest, or a cause exists; and
commitment order if the accused had 3. That there is a need to place the
already been arrested and hold him for respondent under immediate
trial. If the judge is satisfied that there custody in order not to frustrate
is no necessity for placing the accused the ends of justice.
under custody, he may issue summons
instead of warrant of arrest.  If the MTC judge found probable cause
but did not believe that the aforesaid
The RTC judge need NOT personally conditions were met, he cannot be
examine the complaint and witnesses in compelled by mandamus to issue the
the determination of probable cause for same.
the issuance of the warrant of arrest. He
is only required to: REMEDY: The provincial fiscal, if he
1. Personally evaluate the report believes that the accused should be
and the supporting documents immediately placed in custody, may file
submitted during the preliminary the corresponding information so that
investigation by the fiscal; and the RTC may issue the necessary warrant
2. On the basis thereof he may: of arrest (Samulde vs. Salvani, Jr., G.R.
a) Dismiss; No. 78606, Sept. 26, 1988).
b) Issue warrant; or
c) Require further affidavits. While the judge may rely on the fiscal’s
certification thereof, the same is NOT
INSTANCES WHEN MTC MAY CONDUCT conclusive on him as the issuance of said
PRELIMINARY INVESTIGATION: warrant calls for the exercise of judicial
1. cases cognizable by the RTC may discretion and, for that purpose, the
be filed with the MTC for judge may require the submission of
preliminary investigation; affidavits of witnesses to aid him in
2. cases cognizable by the MTC arriving at the proper conclusion, OR he
because it is an offense where may require the fiscal to conduct further
the penalty prescribed by law is preliminary investigation or
at least four (4) years, two (2) reinvestigation.
months and one (1) day without
regard to the fine. INSTANCES WHEN WARRANT OF ARREST
 In either situation, the MTC is NOT NECESSARY
authorized to issue a warrant of arrest if

148
1. if the accused is already under the accused until the prosecutor shall
detention; have conducted and made a report on
2. if the complaint or information the result of such reinvestigation.
was filed after the accused was
lawfully arrested without The right to bail pending Preliminary
warrant; Investigation under Section 7, Rule 112,
3. if the offense is punishable by a person lawfully arrested may post bail
fine only. before the filing of the information or
even after its filing without waiving his
Section 7. When accused lawfully right to preliminary investigation,
arrested without warrant. provided that he asks for a preliminary
investigation by the proper officer within
TWO SITUATIONS CONTEMPLATED the period fixed in the said rule (People
UNDER THIS RULE: vs. Court of Appeals, May 29, 1995).
1. When a person is lawfully
arrested without a warrant for Section 8. Records
an offense requiring a
preliminary investigation (sec. 1, Records of the preliminary investigation
Rule 112) and no complaint or shall NOT automatically form part of the
information has yet been filed, records of the case. Courts are not
he may ask for a preliminary compelled to take judicial notice
investigation by signing a waiver thereof. It must be introduced as an
of the provisions of Art. 125 of evidence.
the RPC in the presence of his
counsel. Section 9. Cases not requiring a
2. When the complaint or preliminary investigation nor covered
information was filed without by the Rule on Summary Procedure.
preliminary investigation, the
accused may, within 5 days from PROCEDURE TO BE FOLLOWED IN CASES
the time he learns of the filing WHICH DO NOT REQUIRE PRELIMINARY
of the information, ask for a INVESTIGATION
preliminary investigation with
the same right to adduce 1. Evaluate the evidence presented
evidence in his favor in the 2. Conduct searching questions or
manner prescribed in this Rule. answers
3. Require the submission of
The 5-day period is MANDATORY, failure additional evidence
to file the motion within the said period
amounts to waiver of the right to ask for  For cases under the Revised Rules on
preliminary investigation. Summary Procedure, no warrant shall be
issued except where the accused fails to
Where the information was amended appear after being summoned.
without a new preliminary investigation
having been conducted, the 5-day period If the complaint is filed with the
is computed from the time the accused prosecutor involving an offense
learns of the filing of said amended punishable by imprisonment of less than
information. 4 years, 2 months and 1 day, the
procedure in Rule 112, Section 3 (a) shall
Where the trial court has granted a be observed.
motion for reinvestigation, it must hold
in abeyance the arraignment and trial of If the complaint is filed with the MTC,
the the same procedure under Rule 112,
Section 3 (a) shall be observed.

149
RULE 113 2. By his submission to the custody

ARREST of the person making the arrest.
Section 1. Definition of arrest. Upon arrest, the following may be

confiscated from the person arrested:
Arrest – the taking of a person into 1. Objects subject of the offense or
custody in order that he may be bound used or intended to be used in
to answer for the commission of an the commission of the crime;
offense (Sec. 1 Rule 113). 2. Objects which are the fruits of
the crime;
Modes of Arrest 3. Those which might be used by
1. arrest by virtue of a warrant the arrested person to commit
2. arrest without a warrant under violence or to escape;
exceptional circumstances as 4. Dangerous weapons and those
may be provided by statute (Sec. which may be used as evidence
5, Rule 113). in the case.
ESSENTIAL REQUISITES OF A VALID Section 5. Arrest without warrant;

WARRANT OF ARREST when lawful
1. It must be issued upon probable
cause which must be determined LAWFUL WARRANTLESS ARREST
personally by a judge after 1. When, IN HIS PRESENCE, the
examination under oath or person to be arrested has
affirmation of the complainant committed, is actually
and the witnesses he may committing, or is attempting to
produce commit an offense (in flagrante
2. The warrant must particularly delicto arrests);
describe the person to be seized 2. When an offense has in fact just
been committed, and he has
A warrant of arrest has NO expiry date. probable cause to believe based
It remains valid until arrest is effected on PERSONAL KNOWLEDGE of
or warrant is lifted. fact and circumstance that the
person to be arrested has
REMEDY FOR WARRANTS IMPROPERLY committed it; (Doctrine of Hot
ISSUED Pursuit)
Where a warrant of arrest was 3. When the person to be arrested
improperly issued, the proper remedy is is a prisoner who has escaped
a petition to quash it, NOT a petition for from a penal establishment or
habeas corpus, since the court in the place where he is serving final
latter case may only order his release judgment or temporarily
but not enjoin the further prosecution or confined while his case is
the preliminary examination of the pending, or has escaped while
accused (Alimpoos vs. Court of Appeals, being transferred from one
106 SCRA 159). confinement to another.
4. Where a person who has been
Posting of bail does not bar one from lawfully arrested escapes or is
questioning illegal arrest (Section 26, rescued (Sec. 13, Rule 113);
Rule 114, Rules of Court). 5. By the bondsman for the purpose
of surrendering the accused
Section 2. Arrest; how made. (Sec. 23, Rule 114); and
6. Where the accused attempts to
MODES OF EFFECTING ARREST leave the country without
1. By an actual restraint of the permission of the court (Sec. 23,
person to be arrested. Rule 114).

150
If the arrest was effected without Section 8. Method of arrest by officer

warrant, the arresting officer must without warrant.
comply with the provisions of Art. 125 of
the RPC, otherwise, he may be held Section 9. Method of arrest by private
criminally liable for arbitrary detention person.
under Article 124 of the RPC.
Citizen’s arrest - arrest effected by a
RULES ON ILLEGALITY OF ARREST private person.
1. An accused who enters his plea
of NOT guilty and participates in Method of Exception to
the trial waives the illegality of arrest the rule on
the arrest. Objection to the giving
illegality must be raised before information
arraignment, otherwise it is
deemed waived, as the accused, Sec. 7 The officer 1. when the
in this case, has voluntarily shall inform person to be
submitted himself to the the person to arrested flees;
jurisdiction of the court. be arrested 2. when he
2. Illegality of warrantless arrest the cause of forcibly resists
maybe cured by filing of an the arrest and before the
information in court and the the fact that officer has an
subsequent issuance by the the warrant opportunity to
judge of a warrant of arrest. has been inform him;
3. Once a person has been duly issued for his and
charged in court, he may no arrest.
longer question his detention by 3. when the
petition for habeas corpus, his Note: The giving of such
remedy is to quash the officer need information
information and/or the warrant not have the will imperil the
of arrest. warrant in his arrest.
possession at
Section 6. Time of making arrest. the time of
the arrest BUT
Unlike a search warrant which must be must show the
served only in daytime, an arrest may be same after the
made on any day and at any time of the arrest, if the
day or night, even on a Sunday. This is person
justified by the necessity of preserving arrested so
the public peace. requires.
Section 7. Method of arrest of officer Sec. 8 The officer 1. when the

by virtue of warrant. shall inform person to be
the person to arrested is
Under this rule, an arrest may be made be arrested of engaged in the
even if the police officer is not in his authority commission of
possession of the warrant of arrest and the cause an offense or is
(Mallari vs. Court of Appeals, 265 SCRA of the arrest pursued
456). Exhibition of the warrant prior to w/out a immediately its
the arrest is not necessary. However, if warrant commission;
after the arrest, the person arrested so 2. when he
requires, the warrant shall be shown to has escaped,
him as soon as practicable. flees, or
forcibly resists
before the

151
officer has an 3. That he has requested and been

opportunity to denied admittance.
so inform him;
and Generally, a lawful arrest may be made
3. when the anywhere, even on private property or in
giving of such a house. This rule is applicable both
information where the arrest is under a warrant, and
will imperil the where there is valid warrantless arrest.
arrest.
Section 12. Right to break out of the
Sec. 9 The private 1. when the building or enclosure to effect release.
person shall person to be
inform the arrested is A private person making an arrest
person to be engaged in the CANNOT break in or out of a building or
arrested of commission of enclosure because only officers are
the intention an offense or is allowed by law to do so.
to arrest him pursued
and the cause immediately its Section 13. Arrest after escape or
of the arrest. commission; rescue.
2. when he
Note: Private has escaped, Where a person lawfully arrested
person must flees, or escapes or is rescued, any person may
deliver the forcibly resists immediately pursue or retake him
arrested before the without a warrant at any time and in any
person to the officer has an place within the country. The pursuit
nearest police opportunity to must be immediate.
station or jail, so inform him;
otherwise, he and Section 14. Right of Attorney or
may be held 3. when the relative to visit person arrested.
criminally giving of such
liable for information RA 7438 defined certain rights of persons
illegal will imperil the arrested, detained, or under custodial
detention. arrest. investigation, with the penalties for
violations thereof.
Section 10. Officer may summon
assistance.
RULE 114
Only an officer making the arrest is BAIL
governed by the rule. It does not cover a
private individual making an arrest. Section 1. Bail defined.
Section 11. Right of officer to break Bail -- the security given for the release
into building or enclosure. of a person in custody of the law,
furnished by him or a bondsman,
Requisites before an officer can break conditioned upon his appearance before
into a building or enclosure to make an any court as required under the
arrest: conditions specified by the rule (Sec. 1,
1. That the person to be arrested is Rule 114).
or is reasonably believed to be in
said building;
2. That he has announced his
authority and purpose for  A person is in the custody of law when
entering therein; he has been either arrested or otherwise
deprived of his freedom or when he has

152
voluntarily submitted himself to the irrespective of whether the case

jurisdiction of the court by surrendering was originally filed in or
to the proper authorities. appealed to it;
2. The accused shall appear before
All persons, except those charged with the proper courts whenever so
offenses punishable by reclusion required by the court or these
perpetua when evidence of guilt is Rules;
strong, shall, before conviction, be 3. The failure of the accused to
bailable by sufficient sureties, or be appear at the trial without
released on recognizance as may be justification despite due notice
provided by law (Section 13, Article III, shall be deemed a waiver of his
1987 Constitution). right to be present thereat. In
such case, the trial may proceed
Forms of bail: in absentia;
1. corporate surety 4. The bondsman shall surrender
2. property bond the accused to court for
3. cash deposit execution of the final judgment.
4. recognizance
No additional conditions can be imposed.
BAILBOND RECOGNIZANCE
An obligation under an obligation of A detention prisoner who escaped waives
seal given by the record, entered into his right to cross-examination (Jimenez
accused with one or before some court or v. Nazareno).
more sureties, and magistrate duly
made payable to the authorized to take it, By filing a fake bail bond, an appellant is
proper officer with with the condition to deemed to have escaped from
the condition to be do some particular confinement during the pendency of his
void upon act; appeal and in the normal course of
performance by the things, his appeal should be dismissed.
accused of such acts
as he may legally be No release or transfer except on court
required to perform order or bail.
No person under detention by legal
Prosecution witnesses may also be process shall be released or transferred
required to post bail to ensure their except upon order of the court or when
appearance at the trial of the case he is admitted to bail (Sec. 3).
where:
1. there is a substitution of Section 4. Bail, a matter of right;
information (Sec. 4, Rule110), exception.
and
2. where the court believes that a When a matter of right:
material witness may not appear 1. before or after conviction in the
at the trial (Sec. 14, Rule 119). lower courts; AND
2. before conviction by the RTC,
Section 2. Conditions of the bail; EXCEPT when the imposable
requirements. penalty is death, reclusion
perpetua or life imprisonment
CONDITIONS OF BAIL and evidence of guilt is strong.
1. The undertaking shall be
effective upon approval, and, In instances where bail is a matter of
unless cancelled, shall remain in right and the bail to be granted is based
force at all stages of the case on the recommendation of the
until promulgation of the prosecution as stated in the information
judgment of the RTC,

153
or complaint, a hearing is NOT imprisonment, admission to bail

necessary. is discretionary (Sec. 5);
5. After conviction by the RTC
But where, however, there is a reduction wherein a penalty of
of bail as recommended or after imprisonment exceeding 6 but
conviction by the RTC of an offense not not more than 20 years is
punishable by death, reclusion perpetua, imposed, and not one of the
or life imprisonment wherein the grant circumstances below is present
of bail is discretionary, there must be a and proved, bail is a matter of
hearing before a bail is granted in order discretion (Sec.5).
to afford the prosecution the chance to a) Recidivism, quasi-recidivism
oppose it (Bangayan vs. Butacan, 345 or habitual delinquency or
SCRA 301). commission of crime
aggravated by the
The prosecution cannot adduce evidence circumstances of reiteration.
for the denial of bail where it is a matter b) Previous escape from legal
of right. However, where the grant of confinement, evasion of
bail is discretionary, the prosecution sentence or violation of the
may show proof to deny the bail. conditions of bail without
valid justification.
An extraditee is not entitled to bail. The c) Commission of the offense
Constitutional provision on Bail as well while on probation, parole or
as Sec. 4 of Rule 114 applies only when a under conditional pardon
person has been arrested and detained d) Circumstance of the accused
for violation of Philippine Criminal laws. or his case indicates the
It does not apply to extradition probability of flight if
proceedings because extradition courts released on bail
do not render judgments of conviction or e) Undue risk of commission of
acquittal (Govt. of US vs. Judge another crime by the
Purganan, Sept. 24, 2002). accused during pendency of
appeal.
Section 5. Bail, when 6. After conviction by the RTC
discretionary. – imposing a penalty of
imprisonment exceeding 6 years
RULES ON AVAILABILITY OF BAIL but not more than 20 years and
1. Regardless of stage of the any of the circumstance
criminal prosecution, no bail enumerated above and other
shall be allowed if the accused is similar circumstance is present
charged with a capital offense or and proved, no bail shall be
an offense punishable by granted (Sec.5);
reclusion perpetua AND the 7. After judgment has become final
evidence of guilt is strong (Sec. unless accused applied for
7); probation before commencing to
2. Before and after conviction by serve sentence of penalty and
the MTC, Municipal Trial Court or offense within purview of
MCTC, bail is a matter of right probation law (Sec. 24).
(Sec.4).
3. Before conviction by the RTC Section 6. Capital Offense, defined.
whether in the exercise of its
original or appellate jurisdiction, Capital Offense – is an offense which,
bail is a matter of right. (Sec.4) under the law existing at the time of its
4. Upon conviction by the RTC of an commission AND at the time of the
offense not punishable by death, application to be admitted to bail, may
reclusion perpetua or life be punished with death.

154
Section 9. Amount of bail; guidelines.

If the law at the time of commission FACTORS TO BE CONSIDERED IN FIXING
does not impose the death penalty, the THE REASONABLE AMOUNT OF BAIL
subsequent amendment of the law (NOT EXCLUSIVE)
increasing the penalty cannot apply to 1. Financial ability of the accused
the case, otherwise it would be ex post to give bail;
facto, and penalties are determined by 2. Nature and circumstances of the
the law at the time of the commission of offense;
the offense. 3. Penalty for the offense charged;
4. Character and reputation of the
If the law at the time of the application accused;
for bail has amended the prior law which 5. Age and health of the accused;
imposed the death penalty by reducing 6. Weight of evidence against the
such penalty, such favorable law accused;
generally has a retroactive effect. 7. Probability of the accused
appearing at the trial;
Section 7. Capital Offense not bailable. 8. Forfeiture of other bail;
9. The fact that the accused was a
Capital offense or those punishable by fugitive from justice when
reclusion perpetua, life imprisonment or arrested; and
death are NOT BAILABLE when evidence 10. Pendency of other cases when
of guilt is strong. the accused is on bail
EXCEPTION: If the accused charged with Bail must not be in a prohibitory
a capital offense is a minor. amount. Excessive bail is not to be
required for the purpose of preventing
Section 8. Burden of proof in bail the accused from being admitted to bail.
application.
Section 11. Property, how posted.
The hearing should be summary or
otherwise in the discretion of the court Property Bond – is an undertaking
but the right of the prosecution to constituted as a lien on the real property
control the quantum of evidence and the given as security for the amount of the
order of presentation of witnesses must bail (sec11);
be equated with the purpose of the
hearing – to determine the bailability of It is required that the annotation of a
the accused. lien on the land records of the property
posted as bail, otherwise the property
The burden of proving that the evidence bail bond shall be cancelled.
of guilt is strong lies within the fence of
the prosecution. (Comia vs. Antona, 337 Section 12. Qualifications of sureties in
SCRA 656) property bond.
Philippine residency is required of a
Evidence of guilt is strong when proof is property bondsman. The reason for this
evident or the presumption of guilt is is that bondsmen in criminal cases,
strong. The test is NOT whether the residing outside of the Philippines, are
evidence establishes guilt beyond not within the reach of the processes of
reasonable doubt but rather whether it its courts (Villaseñor vs. Abano, 21 SCRA
shows 312).
shows evident guilt or a great Section 13. Justification of sureties.

presumption of guilt.

155
The purpose of the rule requiring the incapable of filing

affidavit of qualification by the surety one, in which case
before the judge, is to enable the latter he may be released
to determine whether or not the surety on recognizance
possesses the qualification to act as
such, especially his financial worth. 3. In case of a
youthful offender
The justification being under oath, any held for physical or
falsity introduced thereto by the surety mental examination,
upon a matter of significance would trial or appeal, if
render him liable for perjury. unable to furnish bail
and under the
Section 14. Deposit of cash as bail. circumstances under
PD 603, as amended
EFFECT OF DEPOSITING CASH AS BAIL
Accused shall be discharged from ON REDUCED A person in custody for a
custody as it is considered as bail. BAIL OR ON HIS period equal to or more
OWN than the minimum of the
Section 15. Recognizance RECOGNIZANCE principal penalty
prescribed for the
Recognizance - an obligation of record, offense charged, without
entered into before some court or application of the
officer authorized to take it with a indeterminate sentence
condition to do some particular act and law or any modifying
the accused is often allowed to obligate circumstance shall be
himself to answer the charge. released on reduced bail
or on his own
Section 16. Bail when not required; recognizance.
reduced bail on recognizance. General Rule: no bail
UNDER THE Exception:
Instances wherein the accused may be REVISED RULES 1. When a warrant of
released on recognizance, without ON SUMMARY arrest is issued for
putting bail or on reduced bail: PROCEDURE failure to appear when
required by the court
2. When the accused
CAN BE 1. Offense charged is - is a recidivist;
RELEASED violation of an - is a fugitive from
WITHOUT BAIL ordinance, light justice;
felony or a criminal - is charged with
offense, the physical injuries
imposable penalty - does not reside in the
wherefore does not place where the
exceed 6 months of violation of the law or
imprisonment and/or ordinance is
fine of P 2,000 under committed; or
R.A.6036. -has not reside in the
place where the
2. Where the accused violation of the law or
has applied for ordinance is
probation and committed; or
before the same has -has no known
been resolved but residence
no bail was filed or Section 17. Bail, where filed.
the accused is

156
1. May be filed with the court that the accused will escape, or even if
where the case is pending, or in he had previously escaped while under
the absence or unavailability of detention, does not deprive him of his
the judge thereof, with another right to bail. The remedy is to increase
branch of the same court within the amount of the bail, provided such
the province or city. amount would not be excessive. (Sy
2. Whenever the grant of bail is a Guan vs. Amparo, 79 Phil. 670)
matter of discretion, or the
accused seeks to be released on Section 21. Forfeiture of bail.
recognizance,
3. the application therefor may be Within 30 days from the failure of the
filed only in the particular court accused to appear in person as required,
where the case is pending, the bondsmen must:
whether for preliminary A. PRODUCE the body of their
investigation, trial or appeal. principal or give the reason for
4. Any person in custody who is not his non-production; AND
yet charged in court may apply B. EXPLAIN why the accused did not
for bail with any court in the appear before the court when
province, city or municipality first required to do so.
where he is held.
The 30-day period granted to the
Section 18. Notice of application to bondsmen to comply with the two
prosecutor. requisites for the lifting of the order of
Such notice is necessary because the forfeiture cannot be shortened by the
burden of proving that the evidence of court but may be extended for good
guilt is strong is on the prosecution and cause shown.
that the discretion of the court in .
admitting the accused to bail can only ORDER OF FORFEITURE VS. ORDER OF
be exercised after the fiscal has been CONFISCATION
heard regarding the nature of the 1. an ORDER OF FORFEITURE is
evidence in his possession. (People vs. conditional and interlocutory,
Raba, 130 Phil. 384) there being something more to
be done such as the production
Section 19. Release on bail. of the accused within 30 days as
provided by the rules an order of
Once the accused has been admitted to forfeiture is not appealable
bail, h is entitled to immediate release 2. an ORDER OF CONFISCATION is
from custody. An officer who fails or not independent of the order of
refuses to release him from detention the order of forfeiture. It is a
notwithstanding the approval by the judgment ultimately determining
proper court of his bailbond, may be the liability of the surety
held liable under Article 126 of the thereunder, and therefore final
Revised Penal Code for delaying release. and execution may issue at once.
Section 20. Increase or reduction of Section 22. Cancellation of bailbond.

bail.
INSTANCES WHEN BAIL BOND CAN BE
The guidelines provided for in Section 9, CANCELLED
Rule 114, in fixing the amount of bail are 1. upon application by the
also applicable in reducing or increasing bondsman with notice to the
the bail previously fixed. fiscal and upon surrender of the
accused; and
Where the offense is bailable as a 2. upon proof that the accused
matter of right, the mere probability died.

157
liberty under his existing bail bond, or if

The bail bond is automatically cancelled no bail was filed, or is incapable of filing
upon the acquittal of the accused or one, he may be released on
dismissal of the case or execution of the recognizance to the custody of a
final order of conviction, without responsible member of the community
prejudice to any liability on the bond
incurred prior to their discharge. The application for probation must be
filed within the period of perfecting an
METHODS BY WHICH SURETIES MAY appeal. Such filing operates as a waiver
RELIEVE THEMSELVES FROM of the right to appeal. The accused in
RESPONSIBILITIES the meantime, is entitled to be released
a. Arrest the principal and deliver on bail or recognizance. (Sec. 4, PD 968,
him to the proper authorities; as amended)
b. They may cause his arrest to be
made by any police officer or Section 25. Court supervision of
other person of suitable age or detainees.
discretion; or
c. By endorsing the authority to The employment of physical,
arrest upon a certified copy of psychological or degrading punishment
the undertaking and delivering it against any prisoner or detainee or the
to such officer or person use of substandard or inadequate penal
facilities under subhuman conditions
Section 23. Arrest of accused out on shall be dealt with by law (Section 19(2),
bail. Article III, 1987 Constitution).
An accused released on bail may be re- Section 26. Bail not a bar to objection
arrested without a warrant if he on illegal arrest, lack of or irregular
attempts to depart from the Philippines preliminary investigation.
without prior permission of the court
where the case is pending. AN APPLICATION FOR OR ADMISSION TO
BAIL SHALL NOT BAR THE ACCUSED
Section 24. No bail after final a. from challenging the validity of
judgment; exception. his arrest OR
b. legality of the warrant issued
GENERAL RULE: The finality of the therefore, OR
judgment terminates the criminal c. from assailing the regularity or
proceeding. Bail becomes of no avail. questioning the absence of
The judgment contemplated is a preliminary investigation of the
judgment of conviction. The judgment is charge against him, PROVIDED,
final if the accused does not appeal the he raises them before entering
conviction. his plea.
No bail shall be granted after judgment, RULE 115

if the case has become final even if RIGHTS OF THE ACCUSED
continued confinement of the accused
would be detrimental or dangerous to his This rule enumerates the rights of a
health. The remedy would be to submit person accused of an offense, which are
him to medical treatment or both constitutional as well as statutory,
hospitalization. save the right to appeal, which is purely
statutory in character.
Section 1. Rights of the accused at the

EXCEPTION: If the accused applies for trial.
probation he may be allowed temporary

158
A. TO BE PRESUMED INNOCENT 2. Promulgation of judgment

In all criminal prosecutions, the accused EXCEPT when the conviction is
is presumed innocent until the contrary for a light offense, in which
is proved beyond reasonable doubt. case, it may be pronounced in
the presence of his counsel or a
Reasonable Doubt is that doubt representative
engendered by an investigation of the 3. When ordered by the court for
whole proof and an inability, after such purposes of identification
investigation, to let the mind rest easy
upon the certainty of guilt. Absolute Not applicable in SC and CA - The law
certainty of guilt is not demanded by the securing to an accused person the right
law to convict of any criminal charge but to be present at every stage of the
moral certainty is required, and this proceedings has no application to the
certainty is required as to every proceedings before the Court of Appeals
proposition of proof requisite to and the Supreme Court nor to the entry
constitute the offense. and promulgation of their judgments The
defendant need not be present in court
 Equipoise rule – where the evidence of during the hearing of the appeal. (Sec. 9
the parties in a criminal case are evenly Rule 124)
balanced, the constitutional presumption
of innocence should tilt in favor of the Accused may waive his right to be
accused and must be acquitted. present during the trial. HOWEVER, his
presence may be compelled when he is
B. TO BE INFORMED OF THE NATURE to be identified. (Aquino, Jr. vs.
AND THE CAUSE OF THE ACCUSATION Military Commission, 63 SCRA 546)
AGAINST HIM.
An accused cannot be convicted of an EFFECTS OF WAIVER OF THE RIGHT TO
offense unless it is clearly charged in the APPEAR BY THE ACCUSED
complaint or information. To convict him 1. waiver of the right to present
of an offense other than that charged in evidence;
the complaint or information would be a 2. prosecution can present
violation of this constitutional right evidence if accused fails to
(People vs. Ortega, 276 SCRA 166). appear;
3. the court can decide without
When a person is charged in a complaint accused’s evidence.
with a crime and the evidence does not
show that he is guilty thereof, but does TRIAL IN ABSENTIA
show that he is guilty of some other It is important to state that the provision
crime or a lesser offense, the court may of the Constitution authorizing the trial
sentence e him for the lesser offense, in absentia of the accused in case of his
PROVIDED the lesser offense is a cognate non-appearance AFTER ARRAIGNMENT
offense and is included in the complaint despite due notice simply means that he
with the court. thereby waives his right to meet the
witnesses face to face among others.
C. TO BE PRESENT AND DEFEND IN
PERSON AND BY COUNSEL AT EVERY Such waiver of a right of the accused
STAGE OF THE PROCEEDING does not mean a release of the accused
from his obligation under the bond to
appear in court whenever so required.
The accused may waive his right but not
THE PRESENCE OF THE ACCUSED IS his duty or obligation to the court.
REQUIRED ONLY
1. During arraignment (Sec. 1b, REQUIREMENTS FOR TRIAL IN ABSENTIA
rule 116) 1. accused has been arraigned

159
2. he has been duly notified of the ordinary witness who can be cross-
trial examined as to any matter stated in the
3. his failure to appear is direct examination or connected
unjustified therewith (Section 6, Rule 132). His
failure to testify is not taken against him
An escapee who has been duly tried in but failure to produce evidence in his
absentia waives his right to present behalf is considered against him (U.S.
evidence on his own behalf and to vs. Bay, 97 Phil. 495).
confront and cross-examine witnesses
who testified against him. (Gimenez vs. F. RIGHT AGAINST SELF-
Nazareno, 160 SCRA 1) INCRIMINATION
The accused is protected under this rule
D. RIGHT TO COUNSEL from questions which tend to incriminate
The right covers the period beginning him, that is, which may subject him to
from custodial investigation, well into penal liability.
the rendition of the judgment and even
on appeal. (People vs. Serzo, Jr., 274 The right may be waived by the failure
SCRA 553) of the accused to invoke the privilege at
the proper time, that is, AFTER the
If during the investigation the assisting incriminating question is asked and
lawyer left, or come and go, the before his answer;
statement signed by the accused is still
inadmissible because the lawyer should The privilege of the accused to be
assist his client from the time the exempt from testifying as a witness
confessant answers the first question involves a prohibition against testimonial
asked by the investigating officer until compulsion only and the production by
the signing of the extrajudicial the accused of incriminating documents,
confession. (People vs. Morial, 363 SCRA and articles demanded from him. (U.S.
96) vs. Tan Teng, 23 Phil. 145)
 The right to counsel and the right to EXCEPTIONS: immunity statutes such as:
remain silent do not cease even after a 1. RA 1379 – Forfeiture of Illegally
criminal complaint/information has obtained wealth
already been filed against the accused, 2. RA 749 – Bribery and Graft cases
AS LONG AS he is still in custody.
RIGHT OF THE ACCUSED AGAINST SELF-
The duty of the court to appoint a INCRIMINATION VS. RIGHT OF THAT OF
counsel de oficio when the accused has AN ORDINARY WITNESS
no legal counsel of choice and desires to The ordinary witness may be compelled
employ the services of one is to take the witness stand and claim the
MANDATORY only at the time of privilege as each question requiring an
arraignment. (Sec. 6 Rule 116) incriminating answer is shot at him, an
accused may altogether refuse to take
E. TO TESTIFY AS WITNESS IN HIS OWN the witness stand and refuse to answer
BEHALF any and all questions.
A denial of the defendant’s right to
testify in his behalf would constitute an G. RIGHT TO CONFRONT AND CROSS-
unjustifiable violation of his EXAMINE THE WITNESSES AGAINST HIM
constitutional right. (People vs. AT TRIAL
Santiago, 46 Phil. 734)
Confrontation is the act of setting a
If the accused testifies, he may be cross- witness face-to-face with the accused so
examined but ONLY on matters covered that the latter may make any objection
by his direct examination, unlike an he has to the witness, and the witness

160
may identify the accused, and this must IMPARTIAL TRIAL

take place in the presence of the court Due process of law requires a hearing
having jurisdiction to permit the before an impartial and disinterested
privilege of cross-examination. tribunal, and that every litigant is
entitled to nothing less than the cold
The main purpose of the right to neutrality of an impartial judge. (Mateo,
confrontation is to secure the Jr. vs. Villaluz, 50 SCRA 180)
opportunity of cross-examination and the
secondary purpose is to enable the judge Public trial – one held openly or
to observe the demeanor of witnesses. publicly; it is sufficient that the relatives
and friends who want to watch the
In any criminal proceeding, the proceedings are given the opportunity to
defendant enjoys the right to have witness the proceedings.
compulsory process to secure the
attendance of witnesses and the EXCLUSION OF THE PUBLIC IS VALID
production of evidence in his behalf. WHEN:
1. evidence to be produced is
H. RIGHT TO SPEEDY, IMPARTIAL AND offensive to decency or public
PUBLIC TRIAL morals;
The right to a speedy trial is intended to 2. upon motion of the accused;
avoid oppression and to prevent delay by (Sec. 21, Rule 119)
imposing on the courts and on the
prosecution an obligation to proceed RULE ON TRIAL BY PUBLICITY
with reasonable dispatch. The right of the accused to a fair trial is
not incompatible to a free press.
The courts, in determining whether the Pervasive publicity is not per se as
right of the accused to a speedy trial has prejudicial to the right to a fair trial. To
been denied, should consider such facts warrant a finding of prejudicial
as the length of the delay, the accused’s publicity, there must be allegations and
assertion or non-assertion of his right, proof that the judges have been unduly
and the prejudice to the accused influenced, not simply that they might
resulting from the delay. be, by the barrage of publicity. (People
vs. Teehankee, 249 SCRA 54)
There is NO violation of the right where
the delay is imputable to the accused. I. RIGHT TO APPEAL ON ALL
(Solis vs. Agloro, 64 SCRA 370) CASES ALLOWED BY LAW AND IN THE
MANNER PRESCRIBED BY LAW.
REMEDIES AVAILABLE TO THE ACCUSED The right to appeal from a judgment of
WHEN HIS RIGHT TO A SPEEDY TRIAL IS conviction is fundamentally of statutory
VIOLATED origin. It is not a matter of absolute
1. He should ask for the trial of the right, independently of constitutional or
case not for the dismissal; statutory provisions allowing such
2. Unreasonable delay of the trial appeal.
of a criminal case as to make the
detention of defendant illegal WAIVER OF THE RIGHT TO APPEAL
gives ground for habeas corpus The right to appeal is personal to the
as a remedy for obtaining accused and similarly to other rights of
release so as to avoid detention kindred nature, it may be waived either
for a reasonable period of time expressly or by implication. HOWEVER,
3. Accused would be entitled to where death penalty is imposed, such
relief in a mandamus proceeding right cannot be waived as the review of
to compel the dismissal of the the judgment by the COURT OF APPEALS
information. is automatic and mandatory (A.M. NO.
00-5-03-SC).

161
3. 80 days for the third 12 month

period.
THE SPEEDY TRIAL ACT OF 1998
(RA 8493)
RULE 116
DUTY OF THE COURT AFTER ARRAIGNMENT AND PLEA
ARRAIGNMENT OF AN ACCUSED
Court SHALL order a pre-trial conference Section 1. Arraignment and plea; how
to consider the following: made.
1. plea bargaining;
2. stipulation of facts; Arraignment – the formal mode of
3. marking for identification of implementing the constitutional right of
evidence of parties; the accused to be informed of the
4. waiver of objections to nature of the accusation against him.
admissibility of evidence; and
5. such other matter as will WHERE AND HOW MADE:
promote a fair and expeditious 1. Before the court where the
trial; complaint or information has
been filed or assigned for trial;
TIME LIMIT FOR THE TRIAL OF CRIMINAL 2. in open court, by the judge or
CASES: SHALL NOT EXCEED 180 days clerk by furnishing the accused a
from the first day of trial, HOWEVER, copy of the complaint or
this rule is NOT ABSOLUTE, for the law information with the list of the
provides for the following EXCEPTIONS: witnesses, reading it in a
1. those governed by the Rules on language or dialect known to him
Summary Procedure; or and asking him of his plea;
2. where the penalty prescribed by
law DOES NOT EXCEED 6 months RULES:
imprisonment or a fine of P1,000 1. Trial in absentia is allowed only
or both; AFTER arraignment;
3. those authorized by the Chief 2. Judgment is generally void if the
Justice of the SC; accused has not been arraigned;
3. There can be no arraignment in
PERIOD FOR ARRAIGNMENT OF THE absentia (accused must
ACCUSED personally enter his plea);
Within 30 days from the filing of the 4. if the accused went to trial
information, or from the date the without arraignment, but his
accused appealed before the counsel had the opportunity to
justice/judge/court in which the charge cross-examine the witness of the
is pending, whichever date last occurs. prosecution and after the
prosecution he was arraigned the
defect was cured;
WHEN SHALL TRIAL COMMENCE AFTER

ARRAIGNMENT If an information is amended
Within 30 days from arraignment, MATERIALLY, arraignment on the
HOWEVER, it may be extended BUT only: amended information is MANDATORY,
1. for 180 days for the first 12 except if the amendment is only as to
calendar month period from the form;
effectivity of the law;
2. 120 days for the second 12 Plea – the matter which the accused, on
month period; and his arraignment, alleges in answer to the
charge against him.

162
2. When the accused did not fully

PERIOD TO PLEA understand the meaning and
When the accused is under preventive consequences of his plea.
detention: his case shall be raffled and 3. Where the information is
its records transmitted to the judge to insufficient to sustain conviction
whom the case was raffled within 3 days of the offense charged.
from the filing of the information or 4. Where the information does not
complaint and the accused arraigned charge an offense, any
within 10 days from the date of the conviction thereunder being
raffle. The pre-trial conference of his void.
case shall be held within 10 days after 5. Where the court has no
arraignment. jurisdiction.
When the accused is NOT under Section 2. Plea of Guilty to a lesser

preventive detention: unless a shorter offense.
period is provided by special law or
Supreme Court circular, the arraignment An accused may enter a plea of guilty to
shall be held within 30 days from the a lesser offense PROVIDED that there is
date the court acquires jurisdiction over consent of the offended party and the
the person of the accused. The time of prosecutor to the plea of guilty to a
the pendency of a motion to quash, or lesser offense which is necessarily
for bill of particulars, or other causes included in the offense charged.
justifying suspension of the arraignment,
shall be excluded in computing the After arraignment but BEFORE trial, the
period. accused may still be allowed to plead
guilty to a lesser offense after
WHEN SHOULD A PLEA OF NOT GUILTY withdrawing his plea of not guilty. In this
BE ENTERED plea of guilty to a lesser offense, no
1. when the accused so pleaded amendment of the complaint or
2. when he refuses to plead information is necessary.
3. where in admitting the act
charged, he sets up matters of If the accused entered a plea to a lesser
defense or with lawful offense WITHOUT the consent of the
justification offended party and the prosecutor AND
4. when he enters a conditional he was convicted, his subsequent
plea of guilt conviction of the crime charged would
5. where, after a plea of guilt, he NOT place him in Double Jeopardy.
introduces evidence of self-
defense or other exculpatory Section 3. Plea of guilty to capital
circumstances offense; reception of evidence.
6. when the plea is indefinite or
ambiguous When the accused pleads guilty to a
An unconditional plea of guilt admits of capital offense, the court shall:
the crime and all the attendant 1. conduct a searching inquiry into
circumstances alleged in the information the voluntariness and full
including the allegations of conspiracy comprehension of the
and warrants of judgment of conviction consequences of his plea;
without need of further evidence 2. require the prosecution to prove
EXCEPT: (CAI DN) his guilt and the precise degree
1. Where the plea of guilty was of his culpability;
compelled by violence or 3. ask the accused if he desires to
intimidation. present evidence in his behalf
and allow him to do so if he
desires.

163
1. It must inform the defendant

To constitute searching inquiry, the that it is his right to have an
questioning must focus on: attorney before being arraigned;
1. the voluntariness of the plea; 2. After giving him such
and information, the court must ask
2. Whether the accused understood him if he desires the aid of an
fully the consequence of his attorney;
plea. 3. If he desires and is unable to
employ one, the court must
Section 5. Withdrawal of improvident assign an attorney de oficio to
plea of guilty. defend him; and
4. If the accused desires to procure
Plea of Guilty – an unconditional an attorney of his own, the court
admission of guilt, freely, voluntarily must grant him reasonable time
and made with full knowledge of the therefor.
consequences and meaning of his act and
with a clear understanding of the precise
nature of the crime charged in the Section 7. Appointment of counsel de
complaint or information; oficio.
INSTANCES OF IMPROVIDENT PLEA PURPOSE

1. plea of guilty was compelled by To secure to the accused, who is unable
violence or intimidation to engage the services of an attorney of
2. the accused did not fully his own choice, effective representation
understand the meaning and by making it imperative on the part of
consequences of his plea the court to consider in the appointment
3. insufficient information to of counsel de oficio, the gravity of the
sustain conviction of the offense offense and the difficulty of the
charged questions likely to arise in the case vis-à-
4. information does not charge an vis the ability and experience of the
offense, any conviction prospective appointee.
thereunder being void
5. court has no jurisdiction
Section 8. Time for counsel de oficio to
At any time before the judgment of prepare for arraignment.
conviction becomes final, the court may
permit an improvident plea of guilty to As to what is reasonable time, it
be withdrawn and be substituted by a depends upon the circumstances
plea of not guilty. surrounding the case like the gravity of
the offense, complexity of the
The withdrawal of a plea of guilty is not allegations in the complaint or
a matter of right to the accused but of information, whether a motion to quash
sound discretion to the trial court. or a bill of particulars has to be filed,
(People vs. Lambrino, 103 Phil. 504) and other similar considerations.
Section 6. Duty of the court to inform

accused of his right to counsel. Section 9. Bill of particulars.
DUTIES OF THE COURT WHEN THE Accused may, AT or BEFORE

ACCUSED APPEARS BEFORE IT WITHOUT arraignment, move for a bill of
COUNSEL particulars to enable him properly to
plead and to prepare for trial.

164
Just in civil cases, the bill of particulars GENERAL RULE: The accused may move
here should be considered an integral to quash the complaint or information at
part of the complaint or information any time BEFORE entering his plea.
which it supplements. EXCEPTION - Instances where a motion
The remedy against an indictment to quash may be filed AFTER plea:
that fails to allege the time of 1. failure to charge an offense
commission of the offense with 2. lack of jurisdiction over the
sufficient definiteness is a motion offense charged
for a bill of particulars, not a 3. extinction of the offense or
motion to quash. penalty
4. the defendant has been in
The failure to ask for Bill of Particulars former jeopardy.
amounts to a waiver of such right.
Motion to Demurrer to
Section 10. Production or inspection of Quash Evidence
material evidence in possession of filed before the filed after the
prosecution. defendant enters prosecution has
his plea rested its case
Section 11. Suspension of arraignment Does not go into based upon the
the merits of the inadequacy of
GROUNDS FOR SUSPENSION case but is the evidence
1. the accused appears to be anchored on adduced by the
suffering from an unsound matters not prosecution in
mental condition which directly related support of the
effectively renders him unable to the question accusation
to fully understand the charge of guilt or
against him and to plead innocence of the
intelligently thereto; accused
2. there exists a valid prejudicial Governed by governed by Rule
question; and Rule 117 of the 119 of the Rules
3. a petition for review of the Rules of Criminal of Criminal
resolution of the prosecutor is Procedure Procedure
pending at the Department of
Justice or the Office of the
President; provided that the Section 2. Form and contents.
period of suspension shall not
exceed 60 days counted from the FORM AND CONTENTS OF A MOTION TO
filing of the petition. QUASH
1. in writing
2. signed by the accused or his
RULE 117 counsel
MOTION TO QUASH 3. shall specify distinctly the
factual and legal grounds
Section 1. Time to move to quash. therefor.
Motion to Quash - this presupposes that The court shall consider no grounds
the accused hypothetically admits the other than those stated in the motion,
facts alleged, hence the court in EXCEPT lack of jurisdiction over the
resolving the motion cannot consider offense charged and when the
facts contrary to those alleged in the information does not charge an offense.
information or which do not appear on A motion to suspend the issuance of a
the face of the information, except warrant of arrest should be considered
those admitted by the prosecution. as a motion to quash if the allegations

165
therein are to the effect that the facts If an alleged defect in the complaint or
charged in the information do not information, which is the basis of a
constitute an offense. motion to quash, can be cured by
amendment, the court shall order the
RESOLUTION OF A MOTION TO QUASH amendment instead of quashing the
A motion to quash must be resolved complaint or information. If, after the
BEFORE trial and cannot defer the amendment, the defect is still not
hearing and determination of said cured, the motion to quash should be
motion until trial on the merits as it granted.
would impair the right of the accused to
speedy trial. Section 5. Effect of sustaining the
motion to quash.
It may also be resolved at the
preliminary investigation since the EFFECTS IF COURT SUSTAINS THE
investigating officer or judge has the MOTION TO QUASH
power to either dismiss the case or bind 1. If the ground of the motion is
the accused over for trial by the proper either:
court, depending on its determination of a) that the facts charged do not
lack or presence of probable cause. constitute an offense; or
b) that the officer who filed
Section 3. Grounds. the information had no
1. That the facts charged do not authority to do so, or
constitute an offense; c) that it does not conform
2. That the court trying the case substantially to the
has no jurisdiction over the prescribed form; or
offense charged; d) that more than one offense
3. That the court trying the case is charged,
has no jurisdiction over the the court may order that another
person of the accused; information be filed or an
4. That the officer who filed the amendment thereof as the case
information had no authority to may be within a definite period.
do so; If such order is NOT MADE, or if
5. That it does not conform having been made, another
substantially to the prescribed information is NOT FILED within
form; a time to be specified in the
6. That more that one offense is order, or within such time as the
charged except when a single court may allow, the accused, if
punishment for various offenses in custody, shall be discharged
is prescribed by law; therefrom, unless he is also in
7. That the criminal action or custody on some other charge.
liability has been extinguished;
8. That it contains averments 2. If the motion to quash is sustained
which, if true would constitute a upon any of the following grounds:
legal excuse or justification; and a) that a criminal action or
9. That the accused has been liability has been
previously convicted or extinguished;
acquitted of the offense b) that it contains averments
charged, or the case against him which, if true, would
was dismissed or otherwise constitute a legal excuse or
terminated without his express justification; or
consent. c) that the accused has been
Section 4. Amendment of complaint or previously convicted or
information acquitted of the offense
charged,

166
the court must state, in its order A motion SUSTAINING the motion to
granting the motion, the release quash is NOT a bar to another
of the accused if he is in custody prosecution for the same offense
or the cancellation of his bond if UNLESS:
he is on bail. 1. the motion was based on the
ground that the criminal action
3. If the ground upon which the or liability has been
motion to quash was sustained is extinguished, AND
that the court has NO 2. that the accused has been
jurisdiction over the offense, the previously convicted or in
better practice is for the court jeopardy of being convicted or
to remand or forward the case to acquitted of the offense
the proper court, not to quash charged.
the complaint or information.
Section 7. Former conviction or
 The prosecution may elevate to the acquittal; double jeopardy.
Higher Courts an order granting a motion
to quash. Double Jeopardy means that when a
person is charged with an offense and
PROCEDURE IF MOTION TO QUASH IS the case is terminated either by
DENIED acquittal or conviction or in any other
1. accused should plead; manner without the consent of the
2. accused should go to trial accused, the latter cannot again be
without prejudice to the special charged with the same or identical
defenses he invoked in the offense.
motion;
3. appeal from the judgment of REQUISITES FOR DOUBLE JEOPARDY
conviction, if any, and interpose UNDER SECTION 7
the denial of the motion as an It is necessary that in the first case that-
error. 1. the complaint or information or
other formal charge was
An order denying a motion to quash is sufficient in form and substance
INTERLOCUTORY and NOT APPEALABLE. to sustain a conviction;
Appeal in due time, as the proper 2. the court had jurisdiction;
remedy, implies a previous conviction as 3. the accused had been arraigned
a result of a trial on the merits of the and had pleaded; and
case and does not apply to an 4. he was convicted or acquitted or
interlocutory order denying a motion to the case was dismissed without
quash. his express consent;
When all these circumstances are
The denial by the trial court of a motion present, they constitute a BAR to a
to quash CANNOT be the subject of a second prosecution for –
petition for certiorari, prohibition or 1. the same offense, or
mandamus in another court of 2. an attempt to commit the said
coordinate rank. offense, or
3. a frustration of the said offense,

Section 6. Order sustaining the motion or
to quash not a bar to another 4. any offense which necessarily
prosecution. includes or is necessarily

167
included in the first offense from the same act or omission

charged. constituting the former charge.
2. The facts constituting the graver
 The discharge of a defendant on a charge became known or were
preliminary investigation is NOT such an discovered only after a plea was
adjudication in his favor as will bar entered in the former complaint
subsequent prosecution for the offense. or information.
This is because, a preliminary 3. The plea of guilty to the lesser
investigation is not a trial and does not offense was made without the
have for its object that of determining consent of the prosecutor and of
definitely the guilt of the accused. the offended party; except when
Further, the accused ha snot yet been the offended party failed to
arraigned. appear during the arraignment.
DISMISSAL vs. ACQUITTAL In any of these instances, such period of

Acquittal is always based on the merits, the sentence as may have been served
that is, the defendant is acquitted by the accused under the former
because the evidence does not show conviction shall be credited against and
defendant’s guilt beyond reasonable deducted from the sentence he has to
doubt; but Dismissal does not decide the serve should he be convicted under the
case on the merits or that the defendant subsequent prosecution.
is not guilty.
B. SAME EVIDENCE TEST - whether the
If an act is punished by a law and an facts as alleged in the second
ordinance, even if they are considered information, if proved, would have
as different offenses, conviction or been sufficient to sustain the former
acquittal under either shall constitute a information, or from which the
bar to another prosecution for the same accused may have been acquitted or
act. convicted.
If a single act is punished by two Section 8. Provisional dismissal.

different provisions of law or statutes,
but each provision requires proof of an GENERAL RULE: Where the case was
additional fact which the other does not dismissed “provisionally” with the
so require, neither conviction nor consent of the accused, he CANNOT
acquittal in one will bar a prosecution invoke double jeopardy in another
for the other. (Perez vs. Court of prosecution therefor OR where the case
Appeals, 163 SCRA 236) was reinstated on a motion for
reconsideration by the prosecution.
TESTS FOR DETERMINING WHETHER EXCEPTIONS: Where the dismissal was
THE TWO OFFENSES ARE IDENTICAL: actually an acquittal based on:
a) lack or insufficiency of the
A. SAME OFFENSE TEST - There is evidence; or
IDENTITY between two offenses not b) denial of the right to speedy
only when the second offense is trial, hence, even if the accused
exactly the same as the first, but gave his express consent to such
ALSO when the second offense is an dismissal or moved for such
attempt to or frustration of, OR is dismissal, such consent would be
necessarily included in the offense immaterial as such dismissal is
charged in the first information. actually an acquittal.
EXCEPTIONS TO THE IDENTITY RULE:
1. The graver offense developed REQUISITES
due to supervening facts arising 1. consent of the prosecutor
2. consent of the accused

168
3. notice to the offended party b) stipulation of facts;

c) marking for identification of
If a case is provisionally dismissed with evidence of the parties;
the consent of the prosecutor and the d) waiver of objections to
offended party, the failure to reinstate admissibility of evidence;
it within the given period will make the e) modification of the order of trial
dismissal permanent. if the accused admits the charge
but interposes a lawful defense;
PERIOD FOR REINSTATEMENT: f) such matters as will promote a
a. offenses punishable by fair and expeditious trial of the
imprisonment not exceeding 6 criminal and civil aspects of the
years = ONE YEAR case. (Sections. 2 & 3, Circ. 38-
b. offenses punishable by 98).
imprisonment of more than 6
years = TWO YEARS Plea bargaining – the process whereby
the accused, the offended party and the
Otherwise the dismissal shall be removed prosecution work out a mutually
from being provisional and becomes satisfactory disposition of the case
permanent. subject to court approval. It usually
involves the defendant’s pleading guilty
Section 9. Failure to move to quash or to a lesser offense or to only one or
to allege any ground therefor. some of the counts of a multi-count
indictment in return for a lighter
All grounds for a motion to quash are sentence than that for the graver
WAIVED if NOT seasonably raised, charge.
EXCEPT:
a) when the information does not Section 2. Pre-trial agreement.
charge an offense;
b) lack of jurisdiction of the court; Requisites before the pre-trial
c) extinction of the offense or agreement can be used as evidence:
penalty; and 1. they are reduced to writing
d) double jeopardy. 2. the pre-trial agreement is signed
by the accused and his counsel.
RULE 118 The requirement in section 2 is intended

PRE-TRIAL to safeguard the right of the accused
against improvident or unauthorized
Section 1. Pre-trial; mandatory in agreements or admissions which his
criminal cases. counsel may have entered into, or which
any person may ascribe to the accused
Pre-trial is MANDATORY in all criminal without his knowledge, as he may have
cases. waived his presence at the pre-trial
conference.
The court shall after arraignment and
within 30 days from the time the court The omission of the signature of the
acquires jurisdiction over the person of accused and his counsel, as mandatorily
the accused, unless a shorter period is required by the rules, renders the
provided for by special laws or circular stipulation of facts inadmissible in
of the Supreme Court, order a pre-trial. evidence.
Section 3. Non-appearance at pre-trial

MATTERS CONSIDERED IN PRE-TRIAL conference.
CONFERENCE
a) plea bargaining;

169
The court may impose proper sanctions Section 2. Continuous trial until
and penalties for non-appearance at pre- terminated; postponements.
trial conference by the counsel for the
accused or the prosecutor without CONTINUOUS TRIAL SYSTEM
acceptable excuse. Trial once commenced shall continue
from day to day as far as practicable
The sanctions or penalty may be in the until terminated; but it may be
form of reprimand, fine or postponed for a reasonable period of
imprisonment. Inasmuch as this is similar time for good cause.
to indirect contempt of court, the
penalty for indirect contempt may be LIMITATION OF THE TRIAL PERIOD
imposed. It shall in no case exceed 180 days from
the first day of the trial, except as
PURPOSE otherwise provided by the Supreme
To enforce the mandatory requirement Court.
of pre-trial in criminal cases.
Requisites before a trial can be put-off
The accused is not the one compelled to on account of the absence of a witness:
appear, but only the counsel for the 1. that the witness is material and
accused or the prosecutor. The principal appears to the court to be so
reason why accused is not included in 2. that the party who applies has
the mandatory appearance is the fear been guilty of no neglect
that to include him is to violate his 3. that the witnesses can be had at
constitutional right to remain silent. the time to which the trial is
deferred and incidentally that no
Section 4. Pre-trial order. similar evidence could be
obtained
After the pre-trial, the court issues an 4. that an affidavit showing the
order reciting actions taken, facts existence of the above
stipulated and evidence marked, and circumstances must be filed.
thereafter the trial on the merits will
proceed on matters not disposed of Remedies of accused where a
during the pre-trial. prosecuting officer without good cause
secures postponements of the trial of a
To prevent manifest injustice, however, defendant against his protest beyond a
the pre-trial order may be modified by reasonable period of time:
the court, upon its own initiative or at 1. mandamus to compel a dismissal
the instance of any party. of the information
2. if he is restrained of his liberty,
by habeas corpus to obtain his
RULE 119 freedom.
TRIAL
The SC adopted the continuous trial
Section 1. Time to prepare for trial. system as a mode of judicial fact-finding
and adjudication conducted with speed
Trial - the examination before a and dispatch so that trials are held on
competent tribunal according to the the scheduled dates without
laws of the land, of the facts put in issue postponement, the factual issues for
in a case for the purpose of determining trial well-defined at pre-trial and the
such issue. whole proceedings terminated and ready
for judgment within 90 days from the
The trial shall commence within 30 days date of initial hearing, unless for
from receipt of the pre-trial order. meritorious reasons an extension is
permitted.

170
1. The prosecution shall present

The system requires that the Presiding evidence to prove the charge
Judge: and, in the proper case, the civil
1. adhere faithfully to the liability
session hours prescribed by 2. The accused may present
laws; evidence to prove his defense
2. maintain full control of the and damages, if any, arising
proceedings; and from the issuance of a
3. effectively allocate and use time provisional remedy in the case.
and court resources to avoid 3. The prosecution and the defense
court delays. may, in that order, present
rebuttal and sur-rebuttal
The non-appearance of the prosecution evidence unless the court, in
at the trial, despite due notice, justified furtherance of justice, permits
a provisional dismissal or an absolute them to present additional
dismissal depending upon the evidence bearing upon the main
circumstances. issue
4. Upon admission of the evidence
Section 4. Factors for granting of the parties, the case shall be
continuance. deemed submitted for decision
unless the court directs them to
PURPOSE: To control the discretion of argue orally or to submit written
the judge in the grant of continuance on memoranda.
his instance or on motion of any party 5. When the accused admits the act
litigant. or omission charged in the
complaint or information but
Section 5. Time limit following an interposes a lawful defense, the
order for new trial. order of trial may be modified.
The trial shall commence within 30 days GENERAL RULE:

from the date the order for a new trial The order in the presentation of
becomes final. evidence must be followed. The accused
may not be required to present his
Section 7. Public Attorney’s duties evidence first before the prosecution
where accused is imprisoned. adduces its own proof.
EXCEPTION:
These public attorneys enter their Where a reverse procedure was adopted
appearance in behalf of the accused without the objection of the defendant
upon his request or that of his relative or and such procedure did not prejudice his
upon being appointed as counsel de substantial rights, the defect is not a
oficio by the court. reversible error.
Section 8. Sanctions. A departure from the order of the trial is

not reversible error as where it was
Kinds: agreed upon or not seasonably objected
a. criminal to, but not where the change in the
b. administrative order of the trial was timely objected by
c. contempt of court the defense.
Where the order of the trial set forth

Section 11. Order of Trial under this section was not followed by
the court to the extent of denying the
ORDER OF TRIAL: prosecution an opportunity to present its

171
evidence, the judgment is a nullity. Section 15. Examination of witness for

(People vs. Balisacan) the prosecution.
Section 12. Application for The conditional examination of

examination of witness for accused prosecution witnesses shall be conducted
before trial. before the judge or the court where the
case is pending and in the presence of
Accused may have his witness examined the accused, unless he waived his right
conditionally in his behalf BEFORE trial after reasonable notice. The accused
upon motion with notice to all other will have the right to cross-examine such
parties. prosecution witness, hence such
The motion must state: statements of the prosecution witnesses
1. name and residence of witness may thereafter be admissible in behalf
2. substance of testimony of or against the accused (Regalado, p.
3. witness is so sick to afford 460).
reasonable ground to believe
that he will not be able to Section 16. Trial of several accused
attend the trial or resides more
that 100 km and has no means to GENERAL RULE:
attend the same, or other similar When two or more persons are jointly
circumstances exist that would charged with an offense, they shall be
make him unavailable or prevent tried jointly. This rule is so designed as
him from attending trial. to preclude a wasteful expenditure of
judicial resources and to promote an
Section 13. Examination of defense orderly and expeditious disposition of
witness; how made. criminal prosecutions.
EXCEPTION:
If the court is satisfied that the The court, upon motion of the fiscal or
examination of witness is necessary as of any of the defendants, may order a
provided in SECTION 4, order shall be separate trial for one or more accused.
made and a copy served on the fiscal. The granting of a separate trial when
two or more defendants are jointly
The examination shall be taken before charged with an offense is purely
any judge or if not practicable any discretionary with the trial court.
member of the Bar in good standing
designated by the trial court, or by a The motion for separate trial must be filed
lower court designated by a court of BEFORE the commencement of the trial
superior jurisdiction which issue the and cannot be raised for the first time on
order. appeal. If a separate trial is granted, the
testimony of one accused imputing the
Section 14. Bail to secure appearance crime to his co-accused is not admissible
of material witness. against the latter. In joint trial, it would be
admissible if the latter had the opportunity
If the court is satisfied, upon proof or for cross-examination.
oath, that a material witness will not
testify when so required, it may on Section 17. Discharge of accused to be
motion of either party order the witness state witness.
to post bail in such sum as may be
deemed proper. Should the witness Motion to discharge should be made by
refuse to post such bail as required, the the prosecution BEFORE resting its case.
court may commit him to prison until he REQUISITES FOR DISCHARGE
complies or is legally discharged after his 1. absolute necessity for the
testimony has been taken. testimony
2. no other direct evidence

172
available for the prosecution

3. testimony can be substantially This rule is predicated on the fact that
corroborated in its material an accused person has the right to be
points informed of the nature and cause of the
4. accused not the most guilty accusation against him, and to convict
5. accused has never been him of an offense different from that
convicted of an offense involving charged in the complaint or information
moral turpitude would be an unauthorized denial of that
right. (U.S. vs. Campo, 23 Phil. 369)
Absence of any of the requisites for the
discharge of a particeps criminis is a Section 20. Appointment of acting
ground for objection to the motion for prosecutor.
his discharge, BUT such objection must See Section 5, Rule 110.
be raised BEFORE the discharge is
ordered. Section 21. Exclusion of the public.
EFFECTS OF DISCHARGE GENERAL RULE:

1. Evidence adduced in support of the The accused has the right to a public
discharge shall automatically form trial and under ordinary circumstances,
part of the trial; the court may not close the door of the
2. If the court denies the motion to courtroom to the general public.
discharge the accused as state EXCEPTION:
witness, his sworn statement shall Where the evidence to be produced
be inadmissible in evidence; during the trial is of such character as to
3. Discharge of accused operates as an be offensive to decency or public
acquittal and bar to further morals, the court may motu propio
prosecution for the same offense. excludes the public from the courtroom.
EXCEPTIONS:
1. If the accused fails or refuses to Section 22. Consolidation of trials of
testify against his co-accused in related offenses.
accordance with his sworn
statement constituting the basis This contemplates a situation where
of the discharge separate informations are filed:
2. Failure to testify refers 1. for offenses founded on the
exclusively to defendant’s will or same facts;
fault 2. for offenses which form part of a
3. Where an accused who turns series of offenses of similar
state’s evidence on a promise of character
immunity but later retracts and
fails to keep his part of the Section 23. Demurrer to evidence.
agreement, his confession of his
participation in the commission After the prosecution rests its case, the
of the crime is admissible as court may dismiss the action on the
evidence against him. ground of insufficiency of evidence:
1. on its own initiative after giving
Section 19. When mistake has been the prosecution the opportunity
made in charging the proper offense. to be heard; or
2. upon demurrer to evidence filed
When the offense proved is neither by the accused with or without
included in, nor does it include, the leave of court.
offense charged and is different The arrest rule allows the accused in a
therefrom, the court should dismiss the criminal case to present evidence even
action and order the filing of a new after a motion to dismiss PROVIDED the
information charging the proper offense. demurrer was made with the express

173
consent of the court. 1. in writing;

2. in the official language,
The filing of the motion to dismiss 3. personally and directly prepared
WITHOUT leave of court results in the and signed by the judge,
submission of the case for decision on 4. with a concise statement of the
the basis of the evidence on record and fact and the law on which it is
does not lie from such order denying the based.
motion to dismiss.
REMEDY IF JUDGMENT IS NOT PUT IN
If said motion to dismiss is sustained, WRITING: file a petition for mandamus
such dismissal being on the merits is to compel the judge to put in writing the
equivalent to an acquittal, hence the decision of the court.
prosecution cannot appeal as it would
place the accused in double jeopardy. If the judgment is one of CONVICTION,
judgment must state:
An order denying a demurrer to evidence 1. Legal ratification of the offense
being interlocutory is NOT APPEALABLE. constituted by the admissions of
the accused and the aggravating
Section 24. Reopening. and mitigating circumstances
attending its commission
At any time BEFORE finality of the 2. Participation of the accused,
judgment of conviction, the judge may, whether as principal, accomplice
motu propio or upon motion, with or accessory
hearing in either case, reopen the 3. Penalty imposed upon the
proceedings to avoid miscarriage of accused
justice. The proceedings shall be 4. Civil liability or damages caused
terminated within 30 days from the by the wrongful act, unless
order granting it. separate civil action has been
reserved or waived
RULE 120 If the judgment is one of ACQUITTAL, it

JUDGMENT must make a finding on the civil liability
of the accused, unless there is clear
Section 1. Judgment; definition and showing that the act from which the civil
form. liability might arise did not exist.
Judgment - the adjudication by the Reasonable doubt - state of the case

court that the accused is guilty or not which, after full consideration of all
guilty of the offense charged and the evidence, leaves the mind of the judge
imposition of the proper penalty and in such a condition that he cannot say
civil liability provided for by the law. that he feels an abiding conviction, to a
moral certainty, of the truth of the
It is not necessary that the judge who charge.
tried the case be the same judicial
officer to decide it. It is sufficient if he Acquittal – a finding of not guilty based
be apprised of the evidence already on the merits, that is, the accused is
presented by a reading of the transcript acquitted because the evidence does not
of the testimonies already introduced, in show that his guilt is beyond reasonable
the same manner as appellate courts doubt, or a dismissal of the case after
review evidence on appeal. the prosecution has rested its case upon
Section 2. Contents of the motion of the accused on the ground
judgment. that the evidence fails to show beyond
reasonable doubt that the accused is
Judgment must be guilty.

174
the offense charged constitute or form

It is well-settled that acquittal, in a part of those constituting the offense
criminal case is immediately final and proved, then one offense is included in
executory upon its promulgation, and the other.
that accordingly, the State may not seek
its review without placing the accused in Section 6. Promulgation of judgment.
double jeopardy. (Barbers vs. Laguio,
Jr., 351 SCRA 606) Promulgation of judgment - official
proclamation or announcement of
An acquittal of an accused based on judgment. It consists of reading the
reasonable doubt DOES NOT bar the judgment or sentence in the presence of
offended party from filing a separate the accused and any judge of the court
civil action based on other sources of rendering the judgment.
obligation.
RULES ON THE VALIDITY OF
Section 3. Judgment for two or more PROMULGATION OF JUDGMENT:
offenses. 1. The judgment must have been
rendered and promulgated
When two or more offenses charged in during the incumbency of the
the complaint or information, and the judge who signed it.
accused fails to object to it before trial, 2. The presence of counsel during
the court may convict the accused of as the promulgation of judgment is
many offenses as charged and proved. not necessary.
An accused can be convicted of an Effect of Promulgation of Judgment in

offense only when it is both charged and Absentia – he shall lose all remedies
proved. If it is not charged although available in these Rules against the
proved, OR if it is not proved although judgment and the court shall order his
charged, the accused CANNOT be arrest.
convicted thereof.
Section 7. Modification of
Variance between the allegation and the judgment.
proof cannot justify a conviction for
either the offense charged or the Upon motion of the accused, a judgment
offense proved unless either is included of conviction may be modified or set
in the other (Section 4). aside by the court BEFORE it has become
final or BEFORE an appeal has been
Section 5. When an offense perfected.
includes or is included in another.
A judgment becomes final:
GENERAL RULE: If what is proved by the a. when the period for perfecting
prosecution evidence is an offense which appeal an appeal has lapsed;
is included in the offense charged in the b. when the sentence is partially or
information, the accused may validly be totally satisfied or served;
convicted of the offense proved. c. when the accused expressly
EXECEPTION: Where facts supervened waives in writing his right to
after the filing of information which appeal; and
change the nature of the offense. d. when the accused applies for
probation.
An offense charged necessarily includes
another when some essential elements A judgment of acquittal becomes final
or ingredients of the offense charged immediately after promulgation and
constitute the offense proved, or when cannot be recalled for correction or
the essential elements or ingredients of amendment.

175
Section 1. New trial or

The prosecutor cannot ask for the reconsideration.
modification or setting aside of a
judgment of conviction because the New trial - the rehearing of a case
rules clearly provide that a judgment of already decided but before the
conviction may be modified or set aside judgment of conviction therein rendered
by the court rendering upon motion of has become final, whereby errors of law
the accused. or irregularities are expunged from the
record or new evidence is introduced, or
The trial court can validly amend the both steps are taken.
civil portion of its decision within 15
days from promulgation thereof even A motion for new trial or reconsideration
though the appeal had in the meantime should be filed with the trial court
already been perfected by the accused within 15 days from the promulgation of
from judgment of conviction. the judgment and interrupts the period
for perfecting an appeal from the time
The trial court may lose jurisdiction over of its filing until notice of the order
the judgment even BEFORE the lapse of overruling the motion shall have been
15 days: served upon the accused or his counsel.
1. when the defendant voluntarily A motion for the reconsideration of the
submits to the execution of the judgment may be filed in order to
judgment; correct errors of law or fact in the
2. when the defendant perfects his judgment. It does not require any
appeal; further proceeding.
3. when the accused withdraws his
appeal; A new trial be granted at any time
4. when the accused expressly before the judgment of conviction
waives in writing his right to becomes final:
appeal; 1. on motion of the accused
5. when the accused files a petition 2. on motion of the court but with the
for probation. consent of the accused
Section 8. Entry of judgment. The award of new trial or taking of

additional evidence rests upon the sound
The final judgment of the court is discretion of the court. (People vs.
carried into effect by a process called Acosta, 98 Phil. 642)
“mittimus”.
Once the appeal is perfected, the trial
Mittimus - A process issued by the court court steps out of the case and the
after conviction to carry out the final appellate court steps in. Should it come
judgment, such as commanding a prison to pass then that during the pendency of
warden to hold the accused in the appeal, new and material evidence,
accordance with the terms of the for example, have been discovered, the
judgment. accused may file a motion for new trial
with the appellate court.
Section 9. Existing provisions governing
suspension of sentence, probation and Cases when the trial court lose
parole not affected by this Rule. jurisdiction over its sentence even
before the lapse of 15 days:
RULE 121 1. When the defendant voluntarily

NEW TRIAL OR RECONSIDERATION submits to the execution of the
sentence

176
2. When the defendant perfects his inexperience, or incompetence. (U.S. vs.

appeal. The moment the appeal Umali, 15 Phil. 37)
is perfected the court a quo
loses jurisdiction over it, except If the incompetence, ignorance or
for the purpose of correcting inexperience of counsel is so great and
clerical errors. the error committed as a result thereof
is so serious that the client, who
New Trial Reopening of the otherwise has a good cause, is
case prejudiced and denied his day in court,
Filed after judgment made by the court the litigation may be reopened to give
is rendered but before the judgment the client another chance to present his
before the finality is rendered in the case.
thereof exercise of sound
discretion Section 3. Grounds for reconsideration.
At the instance or does not require the
with the consent of consent of the Grounds of motion for reconsideration
the accused accused; may be at 1. errors of law;
the instance of either 2. errors of fact in the judgment,
party who can which require no further
thereafter present proceedings.
additional evidence
The principle underlying this rule is to
Section 2. Grounds for new trial. afford the trial court the opportunity to
correct its own mistakes and to avoid
GROUNDS FOR A NEW TRIAL IN unnecessary appeals from being taken.
CRIMINAL CASES: The grant by the court of
1. errors of law or irregularities reconsideration should require no further
committed during the trial proceedings, such as the taking of
prejudicial to the substantial additional proof.
rights of the accused.
2. new and material evidence Section 4. Form of motion and
discovered. notice to the prosecutor.
REQUISITES BEFORE A NEW TRIAL MAY Requisites for a motion for new trial or
BE GRANTED ON THE GROUND OF reconsideration: The motion for a new
NEWLY DISCOVERED EVIDENCE: trial or reconsideration shall be:
1. that the evidence was 1. in writing
discovered after trial; 2. filed with the court
2. that such evidence could not 3. State grounds on which it is
have been discovered and based
produced at the trial even with 4. If the motion for new trial is
the exercise of reasonable based on a newly discovered
diligence; evidence, it must be supported
3. that it is material not merely by the affidavits of the witness
cumulative, corroborative or by whom such evidence is
impeaching; and expected to be given, or duly
4. the evidence is of such a weight authenticated copies of
that it would probably change documents which it is proposed
the judgment if admitted. to introduce in evidence.
5. Notice of the motion for new
Mistakes or errors of counsel in the trial or reconsideration shall be
conduct of his case are not grounds for given to the fiscal.
new trial. This rule is the same whether
the mistakes are the result of ignorance,

177
While the rule requires that an affidavit

of merits be attached to support a The effect of the granting of a new trial
motion for new trial based on newly is not to acquit the accused of the crime
discovered evidence, yet the defect of of which the judgment finds him guilty,
lack of it may be cured by testimony but precisely to set aside said judgment
under oath of the defendant at the so that the case may be tried de novo as
hearing of the motion. (Paredes vs. if no trial had been before.
Borja, 3 SCRA 495)
Unlike the rule in Civil Cases, the
Section 5. Hearing on motion. remedy of the aggrieved party being
appeal in due time, an order granting a
Where a motion for new trial calls for new trial rendered in Criminal Cases is
resolution of any question of fact, the also interlocutory BUT is controllable by
court may hear evidence thereon by certiorari or prohibition at the instance
affidavits or otherwise. of the prosecution.
PURPOSE
To determine whether the new trial RULE 122
requested should be granted or not. It is APPEAL
not the new trial proper where newly
discovered evidence, for example will be Section 1. Who may appeal.
received by the court. (Pamaran, p. 608)
Any party may appeal from a judgment
Section 6. Effects of granting a new or final order, UNLESS the accused will
trial or reconsideration. be placed in double jeopardy.
EFFECTS OF GRANTING A NEW TRIAL Appeal - a proceeding for review by

OR RECONSIDERATION which the whole case is transferred to
1. when a new trial is granted on the the higher court for a final
ground of errors of law or determination
irregularities committed during the
trial, all proceedings and evidence Appeal is not an inherent right of
not affected by the commission of convicted person. The right of appeal is
such errors and irregularities shall and always has been statutory.
stand, BUT those affected thereby
shall be set aside and taken anew. Only final judgments and orders are
The court may, in the interest of appealable.
justice, allow the introduction of
additional evidence. EFFECT OF AN APPEAL
2. When a new trial is granted on the An appeal in a criminal case opens the
ground of newly discovered whole case for review and this includes
evidence, the evidence already the review of the penalty, indemnity,
taken shall stand, and the newly and the damages involved.
discovered and such other evidence Consequently, on appeal, the appellate
as the court may, in the interest of court may increase the penalty,
justice, allow to be introduced, shall indemnity, or the damages awarded by
be taken and considered together the trial court, although the offended
with the evidence already in the party had not appealed from said award,
record. and the party who sought a review of the
3. In all cases, when the court grants decision was the accused.
new trial or reconsideration, the
original judgment shall be set aside Final judgment Final Order
and a new judgment rendered a judgment which disposes of the whole
accordingly. would become final subject matter or

178
if no appeal is taken terminates a order appealed from and serving

particular issue a copy to the adverse party
leaving nothing to be 3. Appeal to the Court of Appeals in
done but to enforce cases decided by Regional Trial
by execution what Court in the exercise of its
has been determined appellate jurisdiction: by
petition for review
From a judgment convicting the 4. Appeal to the Court of Appeals in
accused, two appeals may accordingly cases where penalty imposed is
be taken: life imprisonment or where a
1. The accused may seek a review lesser penalty is imposed but
of said judgment, as regards involving offenses committed on
both actions; or the same occasion or arising out
2. The complainant may appeal of the same occurrence that
with respect only to the civil gave rise to the more serious
action, either because the lower offense for which the penalty of
court has refused or failed to death or life imprisonment is
award damages, or because the imposed: by filing a notice of
award made is unsatisfactory to appeal with the Court of
him. Appeals.
5. Death penalty: automatic review
GENERAL RULE: A private prosecutor in by the Court of Appeals. (A.M.
a criminal case has NO authority to act No. 00-5-03-SC, October 15,
for the People of the Philippines before 2004)
a court on appeal. It is the government’s 6. Other appeals to the Supreme
counsel, the Solicitor General, who Court: by petition for review on
appears in criminal cases or their certiorari.
incidents before the Supreme Court. At
the very least, the Provincial Fiscal Error of Judgment Error of
himself, with the conformity of the Jurisdiction
Solicitor General. the court may renders an order of
EXCEPTION: The civil award in a commit in the judgment void or
criminal case may be appealed by the exercise of voidable
private prosecutor on behalf of the jurisdiction
offended party or his successors. reviewable by appeal reviewable by
certiorari
Section 2. Where to appeal.
Modes of review
Section 3. How appeal taken. The Rules of Court recognize 4 modes by
which the decision or final order of the
HOW APPEAL IS TAKEN court may be reviewed by a higher
1. Appeal to the Regional Trial tribunal, viz.:
Court: by filing a notice of 1. ordinary appeal
appeal with the court that 2. petition for review
rendered the judgment or order 3. petition for review on certiorari
appealed from and serving a 4. automatic appeal
copy to the adverse party
2. Appeal to the Court of Appeals

from decision of the Regional
Trial Court in the exercise of its
original jurisdiction: by filing a
notice of appeal with the court
which rendered the judgment or

179
Section 4. Service of notice of than 15 days after the promulgation of

appeal. the h e
PUBLICATION OF NOTICE OF the judgment or notice of denial of any

APPEAL motion for new trial or reconsideration.
If copy of the notice of appeal cannot be The transcript shall also be forwarded
served on the adverse party or his within 10 days after the filing thereof by
counsel, it may be done by publication. the stenographic reporter (A.M. No. 00-
Service by publication is made in a 5-03-SC, Oct. 15, 2004).
newspaper of general circulation in the
vicinity once a week for a period not Section 12. Withdrawal of appeal.
exceeding 30 days.
An appellant may withdraw his appeal
Section 5. Waiver of notice. BEFORE the record has been forwarded
by the clerk of court to the proper
The appellee may waive his right to a appellate court as provided by Section 8,
notice that an appeal has been taken. in which case the judgment shall become
HOWEVER, the appellate court may, in final.
its discretion, entertain an appeal
notwithstanding failure to give such The court may also, in its discretion,
notice if the interests of justice so allow the appellant to withdraw his
require. (Llamas vs. Moscoso, 95 Phil. appeal, PROVIDED a motion to that
735) effect is filed BEFORE the rendition of
the judgment in the case on appeal.
Section 6. When appeal to be
taken. Once appeal is withdrawn, the decision
or judgment appealed from becomes at
An appeal must be filed within 15 days once final and executory. (People vs.
counted from the promulgation or notice Dueño, 90 SCRA 23)
of the judgment or order appealed from.
The period for appeal is interrupted Section 13. Appointment of counsel
from the time the motion for new trial is de oficio for accused on appeal.
filed up to the receipt by the accused of
the notice of the order “overruling the The right to counsel de oficio does not
motion”. cease upon the conviction of an accused
by a trial court but continues, even
Section 8. Transmission of papers to during appeal.
appellate court upon appeal.
Duties of the clerk of the trial court to
Within 5 days from the filing of the the appellant who is confined in prison
notice of appeal, the clerk of the court upon the presentation of notice of
with whom the notice of appeal was appeal:
filed must transmit to the clerk of court 1. he shall ascertain from the
of the appellate court the complete appellant, whether he desires
record of the case, together with said the Court of Appeals or the
notice. Supreme Court to appoint an
attorney to defend him de
Section 10. Transmission of records oficio;
in case of death penalty. 2. he shall transmit with the
record, upon a form to be
In case of death penalty, the records prepared by the clerk of the
shall be forwarded to the Court of appellate court, a certificate of
Appeals for automatic review and compliance with this duty of the
judgment, within 20 days but not earlier

180
response of the appellant to his 7 copies of the brief shall be filed within
inquiry. 30 days from receipt by the appellant or
RULE 123 his counsel of the notice from the clerk

PROCEDURE IN THE MUNICIPAL TRIAL of court of the Court of Appeals that the
COURTS evidence, oral and documentary, is
already attached to the record.
Section 1. Uniform Procedure.
Brief - literally means a short or
Procedure to be observed in condensed statement. The purpose of
Metropolitan Trial Courts, Municipal the brief is to present to the court in
Trial Courts and Municipal Circuit Trial concise form the points and questions in
Courts: They shall observe the same controversy, and by fair argument on the
procedure as in the Regional Trial Courts facts and law of the case, to assist the
EXCEPT: court in arriving at a just and proper
1. where a particular provision conclusion.
expressly or impliedly applies
only to the Metropolitan Trial PURPOSE
Courts, Municipal Trial Courts To present to the court in concise form
and Municipal Circuit Trial the points and questions in controversy
Courts or Regional Trial Courts and, by fair argument on the facts and
2. In criminal cases governed by law of the case, to assist the court in
the Rules on Summary Procedure arriving at a just and proper conclusion.
in Special Cases adopted on
August 1, 1983 and revised on Section 4. When brief for appellee to
November 15, 1991. be filed; reply brief of the appellant.
The appellee shall file 7 copies of the

RULE 124 brief with the clerk of court within 30
PROCEDURE IN THE COURT OF APPEALS days from receipt of the brief of the
appellant accompanied by proof of
Section 2. Appointment of counsel service of 2 copies thereof upon the
de oficio for the accused. appellant
REQUISITES BEFORE AN ACCUSED CAN Section 5. Extension of time for filing

BE GIVEN A COUNSEL DE OFICIO ON briefs.
APPEAL
1. that he is confined in prison Not allowed EXCEPT for good and
2. without counsel de parte on sufficient cause and only if the motion
appeal for extension is filed before the
3. signed the notice of appeal expiration of the time sought to be
himself extended.
EXCEPTIONS: An accused-appellant not Section 7. Contents of briefs.

confined to prison can have a counsel de
oficio if requested by him in the Unlike the procedure in civil cases, it has
appellate court within 10 days from been held that it is not essential for the
receipt of the notice to file brief and the accused to make assignment of errors in
right thereto is established by affidavit. his brief, as on appeal, the whole record
of the case is submitted to and
Section 3. When brief for the reviewable by the appellate court.
appellant to be filed.

181
Issues that were never raised in the It is discretionary for the appellate court
proceedings before the trial court whether to order a hearing of the case
cannot be considered and passed upon before it or decide the appeal solely on
on appeal. the evidence submitted to the trial
court.
Section 8. Dismissal of appeal for
abandonment or failure to prosecute. If the Court of Appeals chose not to hear
the case, the Justices composing the
GROUNDS FOR DISMISSAL OF APPEALS division may just deliberate on the case,
1. Failure on the part of the evaluate the recorded evidence on hand
appellant to file brief within the and then decide it.
reglementary period, except
when he is represented by a Section 10. Judgment not to be
counsel de oficio; reversed or modified except for
2. Escape of the appellant from substantial error.
prison or confinement;
3. When the appellant jumps bail; GENERAL RULE:
and The findings of the judge who tried the
4. Flight of the appellant to a case and heard the witnesses are not
foreign country during the disturbed on appeal.
pendency of the appeal. EXCEPTION:
When it is shown that the trial court has
DISMISSAL OF APPEAL; NEED OF NOTICE overlooked certain facts of substance
TO APPELLANT and value that, if considered, might
The Court of Appeals may dismiss motu affect the result of the case. (People vs.
propio or on motion by appellee an Cabiling, 74 SCRA 285)
appeal for failure on the part of the
appellant to file his brief on time, BUT it The reversal of judgments entered in the
must have a notice served upon the court below is prohibited, EXCEPT for
appellant of the action to be taken by prejudicial error – that which tends to
said court before dismissing motu propio prejudice a substantial right of a party
the appeal. to the proceedings.
Effect of Escape of Accused; Section 11. Scope of Judgment.

Abandonment of Appeals The appeal confers upon the appellate
1. If the convict escapes from court full jurisdiction and renders it
prison or confinement or refuses competent to examine the records,
to surrender to the proper revise the judgment appealed from,
authorities, jumps bail or flees increase the penalty and cite the proper
to a foreign country he is provision of the law.
deemed to have abandoned his
appeal AND the judgment of the An invocation of the constitutional
court below becomes final. immunity from double jeopardy will not
2. In that case, the accused cannot lie in case of appeal by the accused. The
be afforded the right to appeal reason being that when the accused
UNLESS (a) he voluntarily appeals from the sentence of the trial
submits to the jurisdiction of the court, he waives the constitutional
court or (b) is otherwise arrested safeguard against double jeopardy and
within 15 days from notice of the throws the whole case open to the
judgment against him. review of the appellate court.
Section 9. Prompt disposition of Section 12. Power to receive

cases. evidence.

182
PURPOSE
To speed up the disposition of court Once an appeal is perfected, the trial
cases. court steps out and the appellate court
steps in. A motion for new trial must
then be filed with the appellate court,
not with the court from whose judgment
the appeal is taken.
Other powers of the Court of Appeals: Section 16. Rehearing or
1. to try cases and conduct reconsideration.
hearings;
2. receive evidence; A motion for reconsideration shall be
3. perform any and all acts filed within 15 days from notice of the
necessary to resolve factual decision or final order of the Court of
issues raised in cases: Appeals.
a. falling under its original and
appellate jurisdiction; A re-hearing is NOT a matter of right but
b. including the power to grant a privilege to be granted or not, as the
and conduct new trials or court sees fit, the matter being solely
further proceedings. within its discretion.
Section 13. Quorum of the court; New questions CANNOT be presented for
certtification or appeal of case to the first time on a motion for rehearing,
the SC. especially where they are inconsistent
with positions taken on the original
a. Whenever the Court of hearing, or waived on the original
Appeals finds that the submission of the case.
penalty of death should be
imposed, the court shall A second motion for rehearing or
render judgment bur reconsideration of a final judgment or
REFRAIN from making an order is NOT allowed because if parties
entry of judgment and are allowed to file as many motions for
forthwith certify the case rehearing or reconsideration as their
and elevate its entire record discretion or caprice suits, the
to the SC for review. proceedings would become
b. In cases where the Court of undeterminable and unnecessarily
Appeals imposes reclusion voluminous.
perpetua, life imprisonment
or a lesser penalty, it shall The MITTIMUS is the final process of
render and enter judgment carrying into effect the decision of the
imposing such penalty. The appellate court and the transmittal
judgment may be appealed thereof to the court of origin is
to the SC by notice of appeal predicated upon the finality of the
filed with the Court of judgment. It shall be stayed during the
Appeals. (A.M. No. 00-5-03- pendency of the motion for rehearing or
SC, Oct. 15, 2004) reconsideration.
Section 14. Motion for new trial. A motion for reconsideration of its
judgment or final resolution shall be
Motion for new trial based on Newly resolved by the Court of Appeals within
Discovered Evidence may be filed at any 90 days from the time it is submitted for
time AFTER the appeal from the lower resolution, and no 2nd motion for
court has been perfected AND BEFORE reconsideration for the same party shall
the judgment of the appellate court be entertained.
convicting the accused becomes final.

183
The only-one-motion-for-reconsideration 2. ordinary appeal

rule does not apply where the first 3. petitioner for review on
motion for reconsideration resulted in a certiorari
reversal or substantial modification of
the original decision or final resolution.
The party adversely affected thereby
may file a motion for reconsideration.
Section 17. Judgment transmitted and EFFECT OF DIRECT APPEAL TO THE
filed in trial court. SUPREME COURT ON QUESTION OF LAW
IN CRIMINAL CASES
Transmittal of judgment to court a quo A direct appeal to the Supreme Court on
After the judgment has been entered, a questions of law – in criminal cases in
certified copy of the entry should be which the penalty imposed is not death
transmitted to the clerk of the court of or life imprisonment – precludes a
origin. review of the facts.
The copy of the entry serves as the Cases involving both questions of law
formal notice to the court from which and fact come within the jurisdiction of
the appeal was taken of the disposition the Court of Appeals.
of the case in the appellate court, so
that the judgment may be executed Appeal to the SC is NOT A MATTER OF
and/or placed or noted in the proper RIGHT, but a matter of sound judicial
file. discretion. The prescribed mode of
appeal is by certiorari.
Sec. 18. Application of certain rules in
civil to criminal cases. Section 2. Review of decisions of
the Court of Appeals.
The corresponding amendment was
made pursuant to the changes GENERAL RULE: Findings of fact in the
introduced under the 1997 Rules of CA is conclusive upon the SC
Procedure. EXCEPTIONS:
1. when the conclusion is a finding
Rule 47 (Annulment of Judgments of grounded entirely on
Final Judgment and Resolutions) DOES speculation, surmises or
NOT APPLY TO CRIMINAL CASES. The conjectures
appropriate remedy for lack of 2. when the inference made is
jurisdiction or extrinsic fraud is manifestly absurd, mistaken or
CERTIORARI (Rule 65) or HABEAS impossible
CORPUS (Rule 102). 3. when there is grave abuse of
discretion in the appreciation of
facts
RULE 125 4. when the judgment is
PROCEDURE IN THE SUPREME COURT premised on a misapprehension
of facts
Section 1. Uniform Procedure. 5. when the findings of fact are
The procedure in the Supreme Court in conflicting
original, as well as in appealed cases, is 6. when the Court of Appeals in
the same as in the Court of appeals, making its findings went beyond
EXCEPT when otherwise provided by the the issues of the case and the
Constitution or the law. same is contrary to the
admissions of both appellant and
A case may reach the Supreme Court in appellee
the following manner: 7. when certain material facts
1. automatic review and circumstances had been

184
overlooked which, if taken into described therein and bring it before the
account would after the result as court.
it would give rise to reasonable
doubt to acquit the accused. ELEMENTS OF SEARCH WARRANT:
1. order in writing
2. signed by the judge in the name
of the People of the Philippines
Question of law - when the doubt or 3. commanding a peace officer to
difference arises as to what the law is on search personal property
a certain state of facts. It must not 4. bring the property before the
involve an examination of the probative court
value of the evidence presented by the
litigants or any of them. NATURE OF SEARCH WARRANTS
Search warrants are in the nature of
Question of fact - when the doubt or criminal process and may be invoked
difference arises as to the truth or the only in furtherance of public
falsehood of alleged facts. prosecutions. Search warrants have no
relation to civil process or trials and are
Section 3. Decision if opinion is not available to individuals in the course
equally divided. of civil proceedings, nor for the
maintenance of any mere private right.
The Supreme Court, the Constitution
ordains, shall be composed of a Chief SEARCH vs. SEIZURE
Justice and 14 associate justices. It mat The term search as applied to searches
sit en banc or in its discretion, in and seizures is an examination of a
divisions of 3, 5, or 7 members (Section man’s house or other buildings or
4(1), Article VIII, 1987 Constitution). premises or of his person with a view to
the discovery of contraband or illicit or
A criminal case shall be reheard by the stolen property or some evidence of guilt
Supreme Court when the Court en banc to be used in the prosecution of a
is equally divided in opinion or the criminal action for some offense with
necessary majority cannot be had, if no which he is charged.
decision is reached the conviction of the
lower court shall be reversed and the A seizure is the physical taking of a thing
accused acquitted. into custody.
According to the Constitution, only the General Warrant – a search warrant

Supreme Court en banc may modify or which vaguely describes and DOES NOT
reverse a doctrine or principle of law or particularize the personal properties to
ruling laid down by the Court in a be seized without a definite guideline to
decision rendered en banc or in division. the searching team as to what items
might be lawfully seized, thus giving the
officers of the law discretion regarding
RULE 126 what articles they should seize.
SEARCH AND SEIZURE
A general warrant is NOT VALID as it
Section 1. Search warrant defined. infringes on the constitutional mandate
requiring particular description of the
Search Warrant – an order in writing things to be seized.
issued in the name of the People of the
Philippines, signed by a judge and WARRANT OF SEARCH WARRANT
directed to a peace officer commanding ARREST
him to search for personal property Order directed to the Order in writing in
peace officer to the name of the RP

185
execute the warrant signed by the judge judicial region where the
by taking the person and directed to the warrant shall be enforced;
stated therein into peace officer to 3. HOWEVER, if the criminal action
custody that he may search personal
has been filed, the application
be bound to answer property described
for the commission therein and to bring shall only be made in the court
of the offense. it to court. where the criminal action is
(sec. 1) pending.
Does not become validity is for 10 days Section 3. Personal property to be
stale only (sec. 9) seized.
May be served on any to be served only in Kinds of property to be seized by virtue

day and at any time daytime unless the of a warrant:
of day or night. affidavit alleges that 1. subject of the offense;
(sec. 6, rule 113). the property is on the 2. proceeds or fruits of the offense;
person or in the place 3. the means used or intended to
to be searched. (sec. be used for committing an
8) offense.
upon probable cause to be determined The rule does not require that the
personally by the judge after examination property to be seized should be owned
in writing and under oath in the form of by the person against whom the search
searching answers and questions. warrant is directed. It may or may not
Only issued if there sworn statements be owned by him.
is a necessity of and affidavits of
placing accused complainant and
under immediate witnesses must be In a search incidental to an arrest even
custody submitted to court. WITHOUT a warrant the person arrested
may be searched for:
1. dangerous weapons, and
Test to determine Particularity 2. anything which may be used as
1. When the description therein as proof of the commission of an
specific as the circumstances offense.
will ordinarily allow
2. When the description express a
conclusion of fact- not of law Section 4. Requisites for issuing Search
which the warrant officer may warrant.
be guided in making the search
and seizure. REQUISITES
3. When the things described are 1. must be issued upon probable
limited to those which bear cause;
direct relation to the offense for 2. probable cause must be
which the warrant is being determined by the issuing judge
issued. personally;
3. the judge must have personally
EXCEPTION: examined, in the form of
AN APPLICATION FOR SEARCH WARRANT searching questions and answers,
SHALL BE FILED WITH THE FF: the applicant and his witnesses
1. any court within whose and taken down their written
territorial jurisdiction a crime depositions;
was committed; 4. the search warrant must
2. any court within the judicial particularly describe or identify
region where the crime was the property to be seized as far
committed if the place of the as the circumstances will
commission of the crime is ordinarily allow;
known, or any court within the

186
5. the warrant issued must

particularly describe the place Any evidence obtained in violation of the
to be searched and the persons constitutional immunity against
or things to be seized; unreasonable searches and seizures are
6. it shall issue only for one specific inadmissible for any purpose in any
purpose; and proceeding (Section 2, Article III, 1987
7. it must not have been issued Constitution).
more than 10 days prior to the
search made pursuant thereto. When may a search warrant be said to
particularly describe the thing to be
A search warrant shall not issue but upon seized:
probable cause in connection with one 1. the description therein is as
specific offense. specific as the circumstances
will allow;
Party who may question validity of 2. when it expresses a conclusion of
search and seizure: fact by which the warrant may
Well settled is the rule that the legality be guided; or
of a seizure can be contested only by the 3. when the things described are
party whose rights have been impaired limited to those which bear a
thereby, and that the objection to an direct relation to the offense for
unlawful search and seizure is purely which the warrant is issued.
personal and cannot be availed of by
third parties. PROBABLE CAUSE - facts and
circumstances which could lead a
REMEDIES FROM AN UNLAWFUL SEARCH reasonable, discreet and prudent man to
1. a motion to quash the search believe that the property subject of an
warrant, and offense is in the place sought to be
2. a motion to suppress as evidence searched.
the objects illegally taken.
(EXCLUSIONARY RULE – any ”MULTI FACTOR BALANCING TEST” in
evidence obtained through determining Probable Cause:
unreasonable searches and One which requires the officer to weigh
seizures shall be inadmissible for the manner and intensity of the
any purpose in any proceeding) interference on the right of the people,
3. Replevin, if the objects are the gravity of the crime committed, and
legally possessed. the circumstances attending the
incident.
The remedies are alternative; if a
motion to quash is denied, a motion to Section 5. Examination of complainant;
suppress cannot be availed of record.
subsequently.
Manner on how a judge should examine a
Where the search warrant is a PATENT witness to determine the existence of
NULLITY, certiorari lies to nullify the probable cause:
same. 1. the judge must examine the
The illegality of the search warrant does witnesses personally
not call for the return of the things 2. the examination must be under
seized, the possession of which is oath
prohibited by law. HOWEVER, those 3. the examination must be
personalities seized in violation of the reduced to writing in the form of
constitutional immunity whose searching questions and answers
possession is not of itself illegal or
unlawful ought to be returned to their Such personal examination is necessary
rightful owner or possessor. in order to enable the judge to

187
determine the existence or non- A search warrant must be served in the

existence of a probable cause. day time.
Section 6. Issuance and form or EXCEPTION:

search warrant. A search warrant may be made at night
when it is positively asserted in the
ISSUANCE OF SEARCH WARRANT affidavit that the property is on the
The Constitution ordains that no warrant person or in the place ordered to be
shall issue but upon probable cause searched (Alvares vs. CFI of Tayabas, 64
supported by oath or affirmation. Phil. 33). The affidavit making such
assertion must itself be sufficient as to
FORM OF SEARCH WARRANT the fact so asserted, for if the same is
The search warrant must be in writing based upon hearsay, the general rule
and must contain such particulars as the shall apply.
name of the person against whom it is
directed, the offense for which it was A search warrant conducted at night
issued, the place to be searched and the without direction to that effect is an
specific things to be seized. unlawful search. The same rule applies
where the warrant left blank the “time”
An application for a search warrant is for making the search.
heard ex-parte. It is neither a trial nor a
part of the trial. The examination or A public officer or employee who
investigation, which must be under oath exceeds his authority or uses
may not be in public. It may be even unnecessary severity in executing the
held in the secrecy of the chambers. It warrant is liable under Article 129 of the
must be under oath and must be in Revised Penal Code.
writing.
Section 10. Validity of search
Section 8. Search of house, room, or warrant.
premises to be made in presence of
two witnesses. 10 days from its date, thereafter, it shall
be void. A search warrant can be used
In order to insure that the execution of only once, thereafter it becomes functus
the warrant will be fair and reasonable, oficio.
and in order to insure that the officer
conducting the search shall NOT exceed While, under section 10, a search
his authority or use unnecessary severity warrant has a validity of 10 days,
in executing the search warrant, as well NEVERTHELESS, it CANNOT be used every
as for the officer’s own protection day of said period and once articles have
against unjust accusations, it is required already been seized under said warrant,
that the search be conducted in the it CANNOT be used again for another
presence of the: search and seizure, EXCEPT when the
1. lawful occupant of the place to search conducted on one day was
be searched, interrupted, in which case the same may
2. or any member of his family, be continued under the same warrant
3. or in their absence, in the the following day if not beyond 10 day
presence of two witnesses of period. (Uy Kheytin vs. Villareal, 42
sufficient age and discretion Phil. 886)
residing in the same locality.
This requirement is mandatory. Section 12. Delivery of [property and
inventory thereof to court; return and
Section 9. Time of making search. proceedings thereon.
GENERAL RULE:

188
The law imposes upon the person making

the search the duty to issue a detailed The remedy for questioning the validity
receipt for the property seized. of a search warrant can only be sought in
Additionally, he is likewise required to the court that issued it, not in the sala
make a return of the warrant to the
court which issued it, together with an
inventory of the property seized. of another judge of concurrent
jurisdiction. Except where there is
Section 13. Search incident to already a case filed, the latter shall
lawful arrest. acquire jurisdiction to the exclusion of
other courts.
WHEN MAY THERE BE A SEARCH
WITHOUT WARRANT Waiver of legality and admissibility
1. in times of war within the area Objection to the legality of the search
of military operation; warrant as to the admissibility of the
2. as an incident of a lawful arrest, evidence obtained or deemed waived
subject to the following where no objection of the search
requisites: warrant was raised during the trial of
a. arrest must be lawful; the case nor to the admissibility of the
b. search and seizure must be evidence obtained through said warrant.
contemporaneous with Section 14. A motion to quash a search
arrest; warrant or to suppress evidence;
c. search must be within where to file.
permissible area;
(i.e. “STOP AND FRISK” search IN WHAT COURT MAY A MOTION TO
which allows a limited protective QUASH BE FILED:
search of outer clothing for 1. before the court that issued the
weapons) warrant;
3. when there are prohibited 2. under the CRIMINAL CASE RULE,
articles open to eye and hand; all the incidents arising from the
(PLAINVIEW DOCTRINE) Search Warrant should be
4. when there is consent, subject consolidated in the court where
to the following conditions: the criminal case is pending;
(consented search) 3. under the ALTERNATIVE REMEDY
a. there is a right; RULE, with the court which
b. there must be knowledge of issued the search warrant. In this
the existence of such right; motion, all grounds for objection
c. there must be intention to existent or available and known
waive; at the time MUST BE INVOKED,
5. when it is incident of inspection; otherwise, they are deemed
6. under the Tariff and Customs waived.
Code for purposes of enforcing
customs and tariff laws; The legality of the search warrant should
7. searches and seizures of vessels be addressed to the court issuing the
and aircraft; this extends to the search warrant and not to any other
warrantless search of a motor court to foster judicial stability
vehicle for contraband; (Pagkalinawan vs. Gomez, 23 SCRA
1275).
Search and seizure of vessels and
aircraft may validly be made without a Filing of motion to quash is without
search warrant because the vessel or prejudice to any proper recourse to the
aircraft can quickly move out of the appropriate higher court by the party
jurisdiction before such warrant could be aggrieved.
secured.

189
Section 2. Attachment
Who may apply for preliminary

attachment
The aggrieved party in whose behalf the
Rule 127 civil aspect of the criminal action is
PROVISIONAL REMEDIES IN CRIMINAL prosecuted may apply for the issuance of
CASES a writ of preliminary attachment, he
being the person primarily and directly
Section 1. Availability of provisional interested thereby. The prosecutor in
remedies. the criminal action may make such an
application in behalf of or for the
NATURE OF PROVISIONAL REMEDIES protection of the interest of the
1. Those to which parties litigant may offended party.
resort for the preservation or
protection of their rights or interests It was held by the Supreme Court that
and for no other purposes during the the public prosecutor has the authority
pendency of the action. to apply for preliminary attachment as
2. They are applied to a pending may be necessary to protect the interest
litigation for the purpose of securing of the offended party.
the judgment or preserving the
status quo, and in some cases after Notice to adverse party, not required
judgment, for the purpose of No notice to the adverse party, or
preserving or disposing of the hearing on the application is required
subject matter. before a writ of preliminary attachment
may issue as a hearing would defeat the
The requisites and procedure for availing purpose of the provisional remedy. The
of these provisional remedies shall be time which such a hearing would take,
the same as those for civil cases. could be enough to enable the defendant
to abscond or dispose of his property
The provisional remedies under this rule before a writ of attachment issue and
are proper only where the civil action the only requisites from the issuance of
for the recovery of civil liability ex a writ of preliminary attachment are the
delicto has not been expressly waived or affidavit and bond of applicant.
the right to institute such civil action (Mindanao Savings, etc. vs. Court of
separately is not reserved in those cases Appeals, 172 SCRA 480)
where reservation may be made.
Attachment may be availed of ONLY
Where the civil action arising from a when the civil action arising from the
criminal offense is suspended by the crime has not been expressly waived or
filing of the criminal action, the court not reserved and only in the following
wherein said civil case is pending can cases:
issue the aforesaid auxiliary writs since a. when the accused is about to
such orders do not involve a abscond from the Philippines;
determination of the merits of the case. b. when the criminal action is based on
(Babala vs. Abaño, 90 Phil. 827) a claim for money or property
embezzled or fraudulently
Kinds of provisional remedies misapplied or converted to the use
1. attachment of the accused who is a public
2. injunction officer or a corporate officer or an
3. receivers attorney, broker, or agent or clerk in
4. delivery of personal property the course of employment or by a
5. support pendente lite person in a fiduciary capacity;

190
c. when the accused has concealed, d. when the accused resides abroad.
removed or about to dispose of his
property;
CRIMINAL PROCEDURE: Information
REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MANILA, BRANCH 911
PEOPLE OF THE PHILIPPINES

PLAINTIFF,
-VERSUS-
CRIM. CASE NO. ___________
HANNAH MAE VENTURA

ACCUSED.
INFORMATION2
The undersigned accuses HANNAH MAE VENTURA of the crime of MURDER 3,

committed as follows:
That on or about December 5, 2004 4, in Batute, Manila5, Philippines, within the jurisdiction
of this court, the said accused did, then and there, with malice aforethought and with
deliberate intent to take the life of RENEE JOI ZABALA 6, willfully, unlawfully, feloniously,
suddenly, unexpectedly, and treacherously attack the latter with a metal fork, first
wounding her in the back, and afterwards, when enfeebled and unable to defend herself,
again stabbed her in the neck, both wounds being necessarily mortal 7, thereby causing the
direct and immediate death of said RENEE JOI ZABALA.
CONTRARY TO LAW.
April 28, 2005.
__Sgd. Fiscal Happy__
(City/Provincial Fiscal)8
Name of the accused, Sec. 7, Rule 110.

2
Information, Sec. 4, Rule 110.
3
Designation of the offense, Sec. 8, Rule 110.
4
Date of commission of the offense, Sec. 11, Rule 110.
5
Place of commission of the offense, Sec. 10, Rule 110.
6
Name of the offended party, Sec. 12, Rule 110.
7
Cause of the accusation, Sec. 9, Rule 110.
8
Subscribed by the prosecutor, Sec. 4, Rule 110.

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San Beda College of Law

MEMORY AID IN REMEDIAL LAW

Criminal Jurisdiction – power of the 2. Determined by the law in force

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

 DESISTANCE of complainant does not Section 8. Designation of the offense.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

3. The accused would not be placed

Limitation to the rule on substitution: VARIANCE BETWEEN INDICTMENT AND

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. When the offense proved is more

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Section 7. Elements of prejudicial and should be held for trial. (Sec. 1,

Prejudicial Question - that which arises Preliminary Investigation is required to

ELEMENTS OF A PREJUDICIAL HOWEVER, the accused can ask for

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIES OF THE ACCUSED IF THERE Filing of the complaint

Section 2. Officers authorized to Resolution of

Section 3. Procedure The Rules do not require the presence of

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Investigation, what is required is that he there is necessity of placing the

Section 6. When warrant of arrest may CONDITIONS BEFORE THE

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

RULE 113 2. By his submission to the custody

Section 1. Definition of arrest. Upon arrest, the following may be

ESSENTIAL REQUISITES OF A VALID Section 5. Arrest without warrant;

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

If the arrest was effected without Section 8. Method of arrest by officer

Section 7. Method of arrest of officer Sec. 8 The officer 1. when the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

officer has an 3. That he has requested and been

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

voluntarily submitted himself to the irrespective of whether the case

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

or complaint, a hearing is NOT imprisonment, admission to bail

REMEDIAL LAW COMMITTEE