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THE REVISED RULES OF CRIMINAL PROCEDURE

Lectures of Judge Tarcelo Sabarre, Jr of RTC Basey

PRELIMINARY CHAPTER

Criminal procedure is defined to be the method prescribed for the application and prosecution of persons
accused of crimes with the imposition of corresponding penalty attached to it
Criminal procedure Deals on the procedural step from the time the accused is actually apprehended up to
the time he is released.

Our system of criminal procedure is accusatorial. The crime is tried by an impartial court or tribunal and the
imposition of penalties to whoever may lose.

Jurisdiction in general the authority to try and decide a case, A definition provided by the SC, Jurisdiction is
the power vested in courts to administer justice, that is to try and decide a case.

Jurisdiction is conferred by law. By law, we refer to the BP Blg. 129 or the Judiciary Reorganization Law and
RA 7691, the Expanded Jurisdiction Law which expanded the jurisdiction of the first level and second level
courts.

Criminal procedure is limited in the concept of criminal jurisdiction.

Criminal jurisdiction is the power to hear and try and decide a particular offense and provide for its
punishment if in case the accused is convicted.

2 elements of Criminal Jurisdiction:


1. Nature of Offense if the prosecution cannot prove the crime accused of, they can still prove the crime
necessarily included in the offense charged. That is why there is plea of guilty to a lesser offense.
2. Penalty attached thereto it should be the penalty imposable to the offense committed not to the
penalty which is actually imposed by the court.

Example: Attempted Homicide is within the jurisdiction of the RTC, if penalty exceeds 6 yrs. However
during trial, the prosecution wasnt able to prove intent to kill but was able to prove that the victim suffered
serious physical injuries, so the accused was convicted of the crime of serious physical injuries. And
serious physical injuries are under the jurisdiction of the first level court. Was the court divested of
jurisdiction? No, it is based on the penalty imposable, not the penalty actually imposed.

Even if the prosecution could not prove the offense charged, it is allowed that the crime necessarily included
in offense charged be proven.

Remember the concept of habitual delinquents? If the accused is a habitual delinquent, there are
additional penalties. You will ask would that be included in determining which court has the jurisdiction? No,
because habitual delinquency is not a crime. We always base it on the nature of the offense and penalty
attached thereto irrespective if the accused charged is actually a habitual delinquent. The reason there is,
habitual delinquency actually is not a crime.

Decision of the SC in the case of El Pueblo de Pilipinas vs. San Juan: Additional penalty for habitual
delinquency is not considered in determining which court shall have jurisdiction over the criminal case
because such delinquency is not a crime.

Territorial jurisdiction over the place of the commission of the crime

Because a case can only be filed in the place where it was committed or in the place where any of the
essential ingredients of the crime is committed, in criminal procedure, venue becomes jurisdictional.

The venue can be changed, if you want to change it, file a Petition of Change of Venue before the SC.
Because under the 1987 Constitution, one of the powers of the Supreme Court is to change the venue

In criminal procedure, venue of the offence becomes Territorial jurisdiction over the place of the commission
of the crime, I told you because the case can only be filed in the place where the crime was committed or
any of the essential ingredients of the crime was committed, because in criminal procedure, venue becomes
jurisdiction.

The following requisites must be present for the exercise of criminal jurisdiction, failure to comply with these
two you may challenge the court if it turns out that one of these was failed to comply with and it will cause
the nullification of the judgment rendered by the court.

Jurisdiction over the subject matter this is conferred by law.

Remember: The issue of jurisdiction can be questioned in any stage of the proceeding even for the very first
time on appeal subject to the case of Ti Ham vs Cebuhanon.

Requisites for the valid exercise of criminal jurisdiction


1. Jurisdiction over the subject matter is conferred by law. It is determined from the allegations of the
complaint or information. The information will always prevail. At the outset, they will always look at the

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information because the information controls everything. Even in the manner of direct examination and
objection they always look at the information.
Example: the prosecution can always object to anything that is not alleged in the information or when
the allegation is not for attempted homicide but for physical injuries so can always ask a motion to
quash because the prosecution failed to allege intent to kill.
2. Jurisdiction over the territory of the place where offense was committed the case can only be
filed where the offense was committed of any of the essential ingredient of the offense was committed.
Exceptions: to the principle of jurisdiction over the territory.
a. Change of venue granted by the Supreme Court
b. When the law provides otherwise.
Example: Sandiganbayan is situated in Quezon City. If you apply the territorial law, only the cases
in QC should be file in the Sandiganbayan but no, all cases involving public officers whose salary
Grade 27 and higher public officers in the entire Philippines shall be filed in the Sandiganbayan
because the law so provides.
c. Continuing crimes committed during a voyage
d. Offenses committed against the Human Security Act of 2007 or the famous Anti-Terrorism Law,
violation in this can be filed anywhere.
3. Jurisdiction over the person of the accused the court may acquire jurisdiction over the person of
the accused either by his voluntary appearance in court or his arrest. Voluntary surrender is considered
a mitigating circumstances
Examples of Voluntary appearance: Specific instances of voluntary appearance in court
1. You file a bail
2. Motion to quash except when the motion to quash is solely anchored on the fact that the court
has no jurisdiction. If the motion to quash alleges grounds other than that, you have already
submitted yourself in the jurisdiction of the court.
3. When you participated in arraignment, preliminary conference, pre-trial conference

Under the 2000 revised rules of criminal procedure, even when you filed a bail, it is not a waiver to question
the legality of the arrest. Because there might be instance of illegal arrest and you want to have temporary
liberty and you posted a bond.

Jurisdiction of the First Level Court


1. Offenses punishable by imprisonment not exceeding 6 years, irrespective of the fine, of the
accessory penalties and the civil liabilities.
One offense even when the penalty did not exceed 6 years yet the jurisdiction is RTC? Libel
because penal code is substantive. Between substantive and procedural law, substantive law
prevails. The RPC really says that Libel will be filed in RTC, so that is an exception
2. Violations of city or municipal ordinances committed within the respective territorial jurisdiction
3. Offenses involving damage to property thru criminal negligence regardless of value of the property
4. Where the penalty is distierro considering that in the hierarchy of penalties, distierro follows
arresto mayor which involves imprisonment
5. In the absence of all RTC judges in the province of city, any first level court may hear and decide
petitions for a writ of habeas corpus or application for bail.
Because a habeas corpus must be given priority

Jurisdiction of the RTC


1. Offenses which imposable penalty exceeds 6 years, irrespective of the fine, accessory penalty and civil
liability
2. Libel
3. Offenses committed by public officers and employees in connection with the performance of their duties
and whose salary grade is less than 27 (first level court imprisonment not exceeding 6 yrs, salary
grade 25)
4. Violations of the Intellectual Property Code of the Philippines

Jurisdiction of Family Court (RTC courts designated as Family Courts) created by virtue of RA 8369
1. Accuse or victim is minor at the time of the commission of the offense
2. Minors charged under the Dangerous Drugs Act
3. Those involving violation of the Child Abuse Law
4. RA 9208 Child trafficking
5. Human Trafficking
6. Domestic violence against women and children
7. Those violations of Child pornography Act

Sandigabayan
1. Violations of the anti-graft and corruption practices act
2. Offenses committed by Public officers with salary grade of 27 or higher
3. Civil and criminal cases in pursuant to EO 1 creating the PCGG presidential commission in Good
government, in cases of ill-gotten wealth of marcos
4. Violation of the Anti-money laundering law

What are the cases that will undergo mediation before the Lupon?
1. Slight physical injuries committed by an accused from San Jose, the victim
is from Sagkahan. The case must be filed in the place where the accused
resides.

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2. Punishable by a penalty not exceeding 1 year or a fine not exceeding 5000
pesos or both

The case may be dismissed on the ground of lack of jurisdiction or pre-


majority

What are the cases under the jurisdiction of the First Level Courts
but in the trial, the court uses the Rules on Summary procedure?
1. Cases punishable of imprisonment not exceeding 6 months or a fine
not exceeding 1000 pesos.

RULE 110: PROSECUTION OF OFFENSES

Section 1. Institution of criminal actions. Criminal actions shall be instituted as follows:


a. For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the
complaint with the proper officer for the purpose of conducting the requisite preliminary investigation.
b. For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and
Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other
chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided
in their charters.

The institution of the criminal action shall interrupt the running period of prescription of the offense
charged unless otherwise provided in special laws. (1a)

Katarungang Pambarangay SEC 412. Precondition to filing a complaint in court. No complaint,

Section 2. The Complaint or information. The complaint or information shall be in writing, in the
name of the People of the Philippines and against all persons who appear to be responsible for the offense
involved. (2a)

Section 3. Complaint defined. A complaint is a sworn written statement charging a person with an
offense, subscribed by the offended party, any peace officer, or other public officer charged with the
enforcement of the law violated. (3)

Section 4. Information defined. An information is an accusation in writing charging a person with an


offense, subscribed by the prosecutor and filed with the court. (4a)

Concept of a complaint and Information


Complaint: sworn written statement charging a person with an offense,
subscribed by the offended party, any peace officer or other public officer
charged with the enforcement of the law violated.
Information: an accusation in writing charged with an offense, subscribed
by the prosecutor and filed with the court.

Q: can a fiscal file a complaint? Can a prosecutor file a complaint?


A: No. the Prosecutor is not included. Only the offended party, any peace
officer or other officer charged with the enforcement of the law violated.

Q: where lies the difference between a complaint and an information aside


from the fact that an information is always prepared and signed by the
prosecutor while a complaint is not?
A: where they are filed (supply) a complaint is not always filed in court but
the information is always filed in court.

Q: what are the instances where the information is filed by the private
offended party?
A: act of lasciviousness, abduction, seduction, rape

Cases where they use complaint before the information comes in


1. Adultery and concubinage
2. Seduction, abduction and acts of lasciviousness
3. Defamation which consists in the imputation mentioned above.

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Those cases which require the conduct of preliminary investigation before its
filed in court are those cases that requires information.

Q: What are the cases which before they are filed in court, Preliminary
Investigation is a matter of right. Because when a case requires preliminary
investigation is required, you can always file before the court a motion to
conduct Preliminary Investigation, and once granted, the case will always
be remanded before the office of the prosecutor for the conduct of PI before
the information is filed in court.
A: in cases when the penalty of the offense charged is imprisonment of 4
years, 2 months and 1 day.

Section 5. Who must prosecute criminal actions. All criminal actions commenced by a complaint
or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal
Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not
available, the offended party, any peace officer, or public officer charged with the enforcement of the law
violated may prosecute the case. This authority cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court. (

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties,
if both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the
offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated
before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall
initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of the offenses of
seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian,
unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the
complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to
parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised
successively in the order herein provided, except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation of the offenses mentioned above shall be
brought except at the instance of and upon complaint filed by the offended party. (5a)
The prosecution for violation of special laws shall be governed by the provisions thereof. (n)

Who can prosecute?


GR: all criminal actions commenced by the filing of a complaint or
information shall be prosecuted under the direction and control of the
prosecutor.,

Who can file the complaint before the fiscals office?

Q: In cases of adultery and concubinage who can file the information?


A: it can only be filed by the offended spouse including both the offenders is
still alive

Q: In crimes of seduction, abduction, acts of lasciviousness, who can file?


A: if the private offended party is of age or even minor, he/she can file the
case or in his behalf, his parents, grandparent or legal guardian can initiate
the case. But in case the victim is suffering from other incapacity, the State
can file the case.

Q: In libel, must it be preceded by a complaint by the private offended party?


A: it depends on the libelous remarks. If the statement which gave rise to
libelous information says the offender party is a paramour or concubine.

Q: The filing of the complaint before the fiscals office will interrupt the
running of the prescriptive period, is that correct?
A: Yes. This clear in provisions of the rules of criminal procedure except for
violation of city or municipal ordinance or special law, these must be filed
before the court and not in the prosecutor office

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Q: what about it was filed before the Lupon, will it interrupt the running of the
prescriptive period?
A: yes, but not, however, to exceed 60 days
Section 6. Sufficiency of complaint or information. A complaint or information is sufficient if it
states the name of the accused; the designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate date of the
commission of the offense; and the place where the offense was committed.
When an offense is committed by more than one person, all of them shall be included in the complaint or
information. (6a)

Section 7. Name of the accused. The complaint or information must state the name and surname
of the accused or any appellation or nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court,
such true name shall be inserted in the complaint or information and record. (7a)

Section 8. Designation of the offense. The complaint or information shall state the designation of
the offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it. (8a)

Section 9. Cause of the accusation. The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. (9a)

Section 10. Place of commission of the offense. The complaint or information is sufficient if it can
be understood from its allegations that the offense was committed or some of the essential ingredients
occurred at some place within the jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense or is necessary for its identification. (10a)

Section 11. Date of commission of the offense. It is not necessary to state in the complaint or
information the precise date the offense was committed except when it is a material ingredient of the
offense. The offense may be alleged to have been committed on a date as near as possible to the actual
date of its commission. (11a)

Section 12. Name of the offended party. The complaint or information must state the name and
surname of the person against whom or against whose property the offense was committed, or any
appellation or nickname by which such person has been or is known. If there is no better way of identifying
him, he must be described under a fictitious name.
a. In offenses against property, if the name of the offended party is unknown, the property must be
described with such particularity as to properly identify the offense charged.
b. If the true name of the of the person against whom or against whose properly the offense was
committed is thereafter disclosed or ascertained, the court must cause the true name to be inserted in
the complaint or information and the record.
c. If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by
which it is known or by which it may be identified, without need of averring that it is a juridical person or
that it is organized in accordance with law. (12a)

Discussion of Judge Sabarre

What does the complaint of information must allege?


1. The name of the accused.
If the name or identity of the accused is unknown, the court may give a
name of John Do. But when later the name is known, the prosecution
can make the necessary amendment to the information.
2. Name of offended party.
If the name is unknown, the offended may be described with
particularity or in crimes committed against property, the property must
be described.
Q: In cases of robbery with homicide, must the information allege the
name of the owner?
A: In crimes of special complex crimes, the name of the owner becomes
indispensible considering the nature of the penalty imposed by law so it
will not suffice to just state the description of the property.
3. Designation of the offense: the name of what law punishing the
offense

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4. The acts or omission constituting the offense committed.
If there is a conflict with the designation of the offense with the acts or
omission constituting the offense, which will prevail is the acts or
omission constituting the offense.
When the law says acts or omissions constituting the offense, you are
referring to the elements of the offense. The information should include
the aggravating circumstances attendant in the commission of the
offense be it generic or qualified otherwise you cannot prove that in
court.
Remember: The information controls everything. It should include all
aggravating circumstances otherwise you cannot prove that in court.
Example the prosecutor would like to prove treachery but that was not
included in the information, you can always object to that because it
would violate the right of the accused to be informed of the nature of
accusation against him.
Act or omission constituting the offense the law refers to the elements
of the crime committed must be alleged in the information because how
could you prove the crime when one of the elements is missing.
Questions:
1. Tell me if the information is defective. This is a case of murder but the
information did not contain the word with intent to kill, is it
defective?
2. The information is for serious physical injury. The information did not
include without intent to kill is it defective?
3. The accused is minor, 17 years of age, but the information did not
allege that he acted with discernment, is it defective following your
statement that when the law says the essential elements of the crime
committed must all be alleged in the information?
Answer:
1. No, the information is perfectly valid because intent to kill is presumed
when the victim dies.
2. The information is defective. The crime is physical injuries, it is
necessary to allege that it was not with intent to kill otherwise it might
be for attempted of frustrated homicide. That is where the attempted
and frustrated homicide differs from physical injuries because intent to
kill must be alleged.
3. Defective. If the CICL is over 15 and under 18, then to incur criminal
liability there must be discernment. But in one case where the offender
was CICL, 17 yrs old, but the information did not allege. discernment
but there was a word intent to kill, the court said that the allegation
with intent to kill was already sufficient to presuppose that the CICL
acted with discernment
5. The place where the offense was committed. To show that the court
has jurisdiction over the offense committed. Because venue of the
criminal offense becomes jurisdiction.
Exception: When the offense is a continuing or continuous crime.
Because it could be filed in the court where any of the essential
elements of the crime were committed.
Example of crimes where place an essential element:
1. Violation of domicile
2. Trespass to dwelling
3. Violation of election law
6. The date of the commission of the offense.
Q: the information alleged that the offense was committed on or about
the second week of July, 2015. Did the information comply with the
requirement of date of the commission of the offense? Must it be the
exact date?
A: yes. Unless the date is an essential element of the crime such as in
the crime of infanticide.
Crimes where date of crime is essential element:

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1. Abortion
2. Infanticide
3. Bigamy

Review:
The fact that the filing of the information and the trial must always be
under the direct control and supervision of the government prosecutor
although is some cases private prosecutors are allowed to handle trial but
he must be under the direct control and direction of the public
government prosecutor.
The practice not is you must get a written authority from the office of the
prosecution but even when this is a written authority, the government
prosecutor must always be present in court otherwise the validity of the
proceedings may be affected
Under recent jurisprudence, even private prosecutors were given
authority to prosecute; the public prosecutor must always be present.
In criminal cases, it is the solicitor general who must file. Because it is the
Solicitor general who represents the State.
In seduction, abduction, acts of lasciviousness, it is only the offended
party who can file the complaint even if she is the minor unless she is
suffering from any other incapacity; in which case, it should her parents,
grand parent, guardian or the State can initiate the action.
Cases that cannot be prosecuted de officio or the fiscal alone
cannot file the information, it must be preceded by a complaint
by the private offended party. In cases of libel and defamation, it
depends on the statement which gave rise to the libelous remarks. If the
statement are abduction, seduction or adultery or concubinage and act of
lasciviousness it should be preceded with a complaint of the private
offended party, if not then it could be the prosecutor who may file the
complaint.

Section 13. Duplicity of the offense. A complaint or information must charge but one offense,
except when the law prescribes a single punishment for various offenses. (13a)

Q: Can information contain two offenses?


A: GR: an information must contain only a single case.
Exception: in cases of continuing crimes. Example, Juan stole 13
roasters which belong to Pedro found in Pedros yard. Later he found out
that those chickens belong to 13 different persons. Can it be covered in
one information? Yes that is a continuing offense.

Continuing offense is an offense which consists of series of acts but all


arising from one criminal resolution. It does not cover complex or special
complex crimes.

Q: Can there be an instance the information contain two offense?


A: Yes. When the accused did not object. Otherwise you can file a motion to
dismiss.

Remember: If you allowed the accused to be arraigned for the two offenses
covered by one information; that constitutes as a waiver and thus if these
two offenses are proved by the prosecution beyond reasonable doubt the
court can render judgment as many offenses as there are in the information.

Note: motion to quash filed before arraignment, motion to dismiss files


after arraignment.

You file a motion to quash on the ground that it violates the provision that the
information must only contain a single offense. But this can be waived if there
was no objection and therefore the prosecution was able to prove as many

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cases as there were in the information the court can render judgment based
on the offenses covered by the information.

Remember, once the accused has already arraigned you can no longer
question the validity of the information.

Section 14. Amendment or substitution. A complaint or information may be amended, in form or in


substance, without leave of court, at any time before the accused enters his plea. After the plea and during
the trial, a formal amendment may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the prosecutor,
with notice to the offended party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the offended party. (n)
If it appears at any time before judgment that a mistake has been made in charging the proper offense,
the court shall dismiss the original complaint or information upon the filing of a new one charging the proper
offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double
jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (14a)

GR: An information can be amended as to from or substance as a matter of


right before plea of the accused.
EXP: But you can still amend the complaint or information as to form after
arraignment however you must comply with certain requisites:
1. There must be notice to the offended party
2. With leave of court

Note: after plea, only formal amendments may be made but with the leave
of court and when it can be done without causing prejudice to the rights of
the accused.
Note: when it is a matter of right, no leave of court or without the approval of
the court

Q: what about if the amendment downgraded the offense from murder to


homicide or the amendment is to exclude one of the accused, for instance,
there were five offenders and they want to exclude one them because he
did not actually participated commission of the crime, would it possible?
What is the rule?
A: it must be upon the motion of the prosecutor, with notice to the offended
party, with leave of court.

There can be amendment which can downgrade the nature of the offense or
to exclude one of the accused in in crime. However there are three requisites:
1. There must be a motion of the prosecutor, 2. There must be notice to the
private offended party, 3. There must be leave of court.

Q: can it be done after the plea of the accused?


A: it must be done before the arraignment of the accused because the
amendment there refers to substance. Remember, once arraignment it
done, you can no longer amend the information as to substance.

Q: vis--vis the amendment is substitution, what do you understand by the


word substitution and how is it applied in the context of what we are
discussing tonight?
A: a complaint or information may be substituted if at any time before the
judgment, it appears that a mistake has been made in charging the proper
offense, and the accused cannot be convicted of the offense charged of any
other offense necessarily included therein, Provided that he (accused) will
not be placed in double jeopardy.

If trial was going on and there was a mistake in the charging the proper
offense, the rule is the old information is dismissed and a new information in
filed before the court but the accused should not be placed in double
jeopardy.

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In civil procedure, amendment is also allowed to conform to the evidences
presented, here (criminal procedure) you are allowed to withdraw or dismiss
the original information, file a new information if the offense charged was not
the correct one and that is to conform also to the evidences presented by the
prosecution but see to it that that substitution is made before the judgment.
Because once there is judgment, there can be no amendment, there can be
no substitution. Most importantly the accused must not be put in double
jeopardy.

Example: The information was for homicide but there was an allegation for
abuse of superior strength. It was proven during trial. Can you substitute the
information? Yes. To conform to the evidences presented. So instead of
homicide, it should have been murder. That will not place the accused in
double jeopardy because all the elements for murder are actually found in the
information; there was just a mistake in charging the proper offense.
Section 15. Place where action is to be instituted.
a. Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or
territory where the offense was committed or where any of its essential ingredients occurred.
b. Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of
its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where
such train, aircraft or other vehicle passed during such its trip, including the place of its departure and
arrival.
c. Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall
be instituted and tried in the court of the first port of entry or of any municipality or territory where the
vessel passed during such voyage, subject to the generally accepted principles of international law.
d. Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code
shall be cognizable by the court where the criminal action is first filed. (15a)

Section 16. Intervention of the offended party in criminal action. Where the civil action for
recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may
intervene by counsel in the prosecution of the offense. (16a)

RULE 111: PROSECUTION OF CIVIL ACTION

Section 1. Institution of criminal and civil actions.


a. When a criminal action is instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the criminal action unless the offended party waives the
civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal
action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or
information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case,
but any cause of action which could have been the subject thereof may be litigated in a separate civil
action. (1a)
b. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the
filing fees based on the amount of the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party shall pay additional filing fees based on the
amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently
awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the
judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal actions. (cir. 57-97)

Q: I told you that a private prosecutor may appear in criminal cases under
the control and supervision of the government prosecutor but that is not

9
true in other cases. What are these cases that under the law cannot be
prosecuted by a private prosecutor?
A: 1. When there is no private offended party like rebellion.
2. in cases when the civil liability is reserved, because a private prosecutor is
allowed to prosecute in criminal cases when there is a civil liability involved

Q: When a criminal case is filed, it is deemed to include the civil liability.


What is the basis for that under the RPC?
A: Pursuant to Article 100 of the RPC, a person who is criminally liable is also
civilly liable.

Q: the general rule is that, once a criminal case is filed, it is deemed to


include the civil liability. What are the Exceptions?
A: 1. when the offended party has waived the civil action
2. when the offended party has reserved the right to institute it separately
3. when the offended party has instituted the civil action prior to the
institution of the criminal action.

In the context of the reservation, the reservation must be made before the
prosecution presents its evidences or before the presentation of first witness
by the prosecution.

Once the civil action has been reserved, the private prosecutor can no longer
appear. As long as there is no civil liability in the case, the private prosecutor
is not allowed to appear. Because, again, a private prosecutor is only allowed
to appear in a criminal case when there is a civil liability involved.

Q: In the third exception, the civil case is filed ahead in the criminal case. Will
it prevent the filing of the criminal case?
A: No, the criminal case can still be filed even if the civil case is filed ahead.

Q: What is the effect of the filing of the criminal case as far as the civil case is
concerned which filed case?
A: The civil case will be suspended in whatever stage of the proceedings to
await finality of judgment in the criminal case.

Q: What about the criminal and civil case are both filed before the RTC
Tacloban, the same court and the same jurisdiction? What can be done?
A: The cases can be consolidated and if consolidated, the evidences
presented in the civil case shall be automatically reproduced in the criminal
case subject to further cross examination of the witnesses presented.

Q: Reservation means doing it before the prosecution starts to present it first


witness. While the criminal case is ongoing can you file the reserved civil
action?
A: No because it has to wait until the finality of the judgment in the criminal
case.

Q: will there be no problem with the civil case when the criminal case took 25
years before the finality of judgment?
A: No problem, because the running of the prescriptive period is tolled.

Q: After the criminal case was decided, the accused was acquitted. Does that
mean that reserved civil action will not prosper anymore?
A: It depends. If the acquittal is because the crime was not actually
committed, there is no more civil action. But when the acquittal was
because the prosecution was not able to prove the guilt of the accused
beyond reasonable doubt, you can still file a civil case. Or when the
offender was a minor and was acquitted because of his minority, you can
still recover civil liabilities.

10
Q: in violations of BP Blg. 22 or Anti-bouncing checks, can you reserve the
civil action?
A: No. the criminal action is deemed to include the civil action. The actual
damages and the filing of docket fees (civil liability against the accused by
way of moral, nominal, temperate, or exemplary damages) shall be
equivalent to the value of the check.
Section 2. When separate civil action is suspended. After the criminal action has been commenced,
the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the
criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter shall be
suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until
final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in
the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in
the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action
shall be deemed automatically reproduced in the criminal action without prejudice to the right of the
prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the
parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided
jointly.
During the pendency of the criminal action, the running of the period of prescription of the civil action
which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n)
The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action
based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action
that the act or omission from which the civil liability may arise did not exist. (2a)

Section 3. When civil action may proceeded independently. In the cases provided for in Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action and shall require only a preponderance
of evidence. In no case, however, may the offended party recover damages twice for the same act or
omission charged in the criminal action. (3a)

Section 4. Effect of death on civil actions. The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be continued against the estate or legal representative
of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused
may be substituted for the deceased without requiring the appointment of an executor or administrator and
the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted
within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in
these rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the
offended party may file against the estate of the deceased. (n)

Section 5. Judgment in civil action not a bar. A final judgment rendered in a civil action absolving the
defendant from civil liability is not a bar to a criminal action against the defendant for the same act or
omission subject of the civil action. (4a)

Section 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal
action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in
court for trial, the petition to suspend shall be filed in the same criminal action at any time before the
prosecution rests. (6a)

Section 7. Elements of prejudicial question. The elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal
action may proceed. (5a)

Recap:
Section 1: On the principle that the civil liability is deemed impliedly
instituted once the criminal action is filed in court not unless there is waiver,
there is reservation and it is field ahead of the criminal action except however
in violation of BP blg 22 or the Bouncing Checks Law because the Law does
not allow reservation.
Precisely in section 1, you know that once you file a criminal case for violation
of BP Blg 22, you are now required to pay the corresponding legal fees and
lawful fees.

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In cases when the civil action is filed ahead of the criminal action and the
criminal action is forthwith filed, the civil case shall be suspended in whatever
stage of the proceedings to await finality in the criminal case. However, if
both are filed within the same jurisdiction or venue, it may be consolidated
upon motion of the either party.

Once consolidated, the evidences presented in the civil case shall be


automatically reproduced in the criminal case subject to further cross-
examination on the part of the witnesses already presented in the civil case.

There is no problem in the civil case since it will not prescribe while waiting
for the finality in the criminal case, the period of prescription shall be tolled.

Q: unfortunately however, in the criminal case, the accused was acquitted.


Will it affect the reserved civil case?
A: it depends.
If the acquittal is based on the fact the crime was not committed, the civil
action will no longer prosper.
If the basis of the acquittal is based on the fact the prosecution was not
able to prove the guilt of the accused beyond reasonable doubt, or maybe
the basis of the acquittal is the application of the doctrine of non-
imputability like the excepting circumstance or minority, even if the
accused is acquitted then the civil action already reserved may prosper.

Apparently, civil action could not co-exist with the criminal action because if
there is a civil action, it will always wait for the judgment in the criminal case
even in the instance when the civil action is filed ahead.

There is principle that hearing of criminal cases cannot be enjoined by the


court. Meaning to say, the court cannot issue injunctions to prevent hearing
of criminal cases as a general rule.
The exceptions are:
1. If the court actually has no jurisdiction over the subject matter of the case.
You may ask another court to issue an injunction to prevent trial of that
case.
(Supply from the book of Herrera) Crespo vs. Mogul

When the information is filed but there is a pending petition for review, that
should be filed within 50 days from the receipt of the resolution of the
prosecutor for the denial of motion for reconsideration. This may be aground
to suspend the arraignment pending the petition for review filed before the
Secretary of justice but it must be filed within 60 days. If there is no
resolution within 60 days, the court has to continue with the trial of the case.

Q: can there be instances these two cases can be tried simultaneously?


A: if there is independent civil action. Found article 32, 33, 34 and 2176 of the
civil code.
Q: however there is a limitation, while it may be true that in case the civil
action is an independent civil action, what is the limitation there on the part
of the plaintiff?
A: the plaintiff can no longer recover damaged twice arising from the same
act or omissions. But the plaintiff may recover which of these awards
higher damages.

Q: in the case of independent civil actions, is there a need for the private
complainant to make a reservation?
A: no, reservation is not required. Under the 1985 rules on criminal
procedure, reservation was stated but it was taken away in the 2000
revised rules on criminal procedure. Thus reservation is no longer required
as long as the civil case is anchored on the fact that it is an independent
civil action.

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Remember, physical injuries is interpreted to mean in its generic sense to
include any bodily injury. It is not interpreted mean the serious, less serious
or slight physical injuries and mutilation crimes. It includes all murder,
parricide, homicide, either attempted, frustrated, anything which will
involve injury to a person is covered by the term bodily injury and therefore
in the context of article 33 of the Civil Code, is considered to be covered in
the tem independent civil action.

Q: now, you notice that except to independent civil actions, the civil case is
always waiting for the criminal case. Can there be a reverse where it will be
the criminal case waiting for the result of the civil case?
A: Yes. In cases in the presence of prejudicial questions

Q: when is there a prejudicial question?


A: it requires the presence of at least 2 elements or requisites
1. The previously filed civil action involves as issue which is similar or is
intimately related with an issue raised in the subsequent criminal action
2. The resolution of the issue will determine whether or not the criminal
action may proceed.

Q: tell me if there is a prejudicial question. A is married to B. while they were


still married, B married C, bigamy. B, the wife was aggrieved, she file a case
for bigamy against A and C. while the case for bigamy was pending in court,
A filed a petition for the declaration of the nullity of his marriage with B
anchored on the ground of psychological incapacity. And while the case is
pending for the nullity of marriage, A through her counsel filed a motion to
suspend hearing on the criminal case in bigamy on the ground of the
existence of prejudicial question. If you are the judge, will grant the motion?
Support your answer by citing pertinent provisions of the law.
A: I will deny the motion, there is no prejudicial question. To become a
prejudicial question, the civil case must be filed ahead of the criminal case.
The SC, in recent decision said that it will not become a prejudicial question
in bigamy because before filing the issue of the validity of the marriage, the
crime was already committed.

Q: if an accused dies while the criminal case is pending. Will his death
extinguish his civil liability since the criminal liability is already
extinguished?
A: It depends. If the accused died before or after final judgment, before final
judgment, the civil liability is extinguished but if he died after final
judgment, the civil liability is not extinguished.

Q: Can there be exception? When the accused dies before final judgment, the
civil liability survives?
A: if it can be predicated on another source of obligation like law contract,
quasi-delict and quasi-contract, in which case it may still survive. It will be
filed against the estate or executor or administrator of the estate of the
accused.

RULE 112: PRELIMENARY INVESTIGATION

Section 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or


proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before
the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4)
years, two (2) months and one (1) day without regard to the fine. (1a)

Section 2. Officers authorized to conduct preliminary investigations.


The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and

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(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in
their respective territorial jurisdictions. (2a)

DISCUSSION

Preliminary investigation is a matter of right except: If the penalty imposable


imprisonment is less than 4 yrs, 2 months and 1 day regardless of fine.

Preliminary investigation is a n inquest or proceeding which may determine


whether there is a sufficient ground to engender a well-founded belief that a
crime has been committed and the accused is probably guilty thereof and he
must be held for trial.

Q: here is a case; the case is punished by 6 yrs and 1 day imprisonment. And
therefore, under rule 112 there has to be a conduct of preliminary
investigation but it was filed without the conduct of preliminary
investigation. You are the counsel for the accused, what will you do and
when will you file?
A: file a motion to remand the case to the prosecutors office before the
accused enters his plea because it is a settled rule that the absence of PI
does not oust the court of its jurisdiction nor will it invalidate the
information unless an objection is filed thereto before the accused enters
his plea because this right can be waived.

And once the court receives the information and you are able to prove it, the
court should not dismiss the case but the court should instead remand the
case to the appropriate prosecutors office for the conduct of PI.

Q: what will you do to the court; it was clear that there was no PI, the offense
was punishable by 6 yrs and 1 day yet the court denied the motion to
remand the case for the conduct of PI. What should be the appropriate
remedy to protect the interest of the accused? Because remember that is
also a part of the due process requirement given to the accused in cases
when PI is necessary before the case is filed in court.
A: file a petition for certiorari to prevent the court from further proceeding
with the case.

Q: who can conduct PI?


A: prosecutions office, Other officers authorized by law: COMELEC for criminal
cases in violation of the omnibus election code of the Philippines, the office
of the ombudsman for determining probable cause for violation of the anti-
graft and corrupt practices act. No more judges. (SC circular AM #05-8-26
governs the PI)

Q: how is the conduct for the preliminary investigation is made?


Section 3. Procedure. The preliminary investigation shall be conducted in the following manner:
a. The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there are respondents, plus two (2)
copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or unavailability, before a
notary public, each of who must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
b. Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at his
expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.

14
c. Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits
and documents, the respondent shall submit his counter-affidavit and that of his witnesses and
other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed
and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished
by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of
a counter-affidavit.
e. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
f. The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five
(5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or
not there is sufficient ground to hold the respondent for trial. (3a)
Section 4. Resolution of investigating prosecutor and its review. If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under
oath in the information that he, or as shown by the record, an authorized officer, has personally examined
the complainant and his witnesses; that there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof; that the accused was informed of the complaint
and of the evidence submitted against him; and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman
or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation
is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy
on the ground that a probable cause exists, the latter may, by himself, file the information against the
respondent, or direct any other assistant prosecutor or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary investigations conducted by
the officers of the Office of the Ombudsman. (4a)

Section 5. Resolution of investigating judge and its review. Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts
and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if
the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the
parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the
proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the
resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman
or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of
probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and
the parties shall be furnished with copies thereof. They shall order the release of an accused who is
detained if no probable cause is found against him. (5a)

Section 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days
from the filing of the complaint or information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7
of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the issue must be resolved by the court
within thirty (30) days from the filing of the complaint of information.
(b) By the Municipal Trial Court. When required pursuant to the second paragraph of section 1 of this
Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the
issuance of a warrant or arrest by the judge shall be governed by paragraph (a) of this section. When the
investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this
Rule. If the findings and recommendations are affirmed by the provincial or city prosecutor, or by the
Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest.

15
However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he
finds after an examination in writing and under oath of the complainant and his witnesses in the form of
searching question and answers, that a probable cause exists and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate the ends of justice.
(c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already
under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of
this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense
penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a)

Section 7. When accused lawfully arrested without warrant. When a person is lawfully arrested
without a warrant involving an offense which requires a preliminary investigation, the complaint or
information may be filed by a prosecutor without need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace office directly with the proper court on the basis of
the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation
in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused
may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same
right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)

Section 8. Records. (a) Records supporting the information or complaint. An information or


complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their
witnesses, together with the other supporting evidence and the resolution on the case.
(b) Record of preliminary investigation. The record of the preliminary investigation, whether
conducted by a judge or a fiscal, shall not form part of the record of the case. However, the court, on its own
initiative or on motion of any party, may order the production of the record or any its part when necessary in
the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case
by the requesting party. (8a)

Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure.

(a) If filed with the prosecutor. If the complaint is filed directly with the prosecutor involving an
offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, the
procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the
complaint based on the affidavits and other supporting documents submitted by the complainant
within ten (10) days from its filing.
(b) If filed with the Municipal Trial Court. If the complaint or information is filed directly with the
Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the
procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable cause after personally evaluating the
evidence, or after personally examining in writing and under oath the complainant and his
witnesses in the form of searching question and answers, he shall dismiss the same. He may,
however, require the submission of additional evidence, within ten (10) days from notice, to
determine further the existence of probable cause. If the judge still finds no probable cause despite
the additional evidence, he shall, within ten (10) days from its submission or expiration of said
period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already been arrested, and hold him for trial. However, if the
judge is satisfied that there is no necessity for placing the accused under custody, he may issue
summons instead of a warrant of arrest. (9a)

Q: Who should subscribe the affidavits by the witnesses?


A: the prosecutor or any public officer who is authorized to administer oath in
the absence of notary public. The affidavit must contain a certification that
he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.

Q: can the investigating prosecutor, upon receipt of the complaint with the
evidences presented, dismiss the case out rightly if he sees that there
appears no probable cause?
A: yes.

Q: then? What should happen when the case is not dismissed because there
was probable cause?
A: issue a subpoena requiring the respondent(s) to file their counter affidavits
within 10 days from receipt of the subpoena. The counter affidavit by the
respondents and witnesses must be subscribed by the same officer who
subscribe the complaint.

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Q: What happens when there is no counter affidavit filed by the respondents?
A: the investigating officer can resolve the existence of probable cause based
on the evidences presented by the private complainant.

Q: what is the next step?


A: the investigation prosecutor can also make a resolution based on the
evidences of the private complainant and that of the respondent. He can
also schedule a hearing for clarificatory hearing where no witnesses can be
directly asked questions because this is not allowed under the rules. But
you can give your questions to the prosecutor so that he can ask the
questions in behalf of the counsel.

Q: if after clarificatory hearing and the accused fins there is no probable


cause, the prosecutor may dismiss the case. What should he do next?
A: he must furnish a copy of his order of dismissal to the city or provincial
prosecutor because under the rules, the one who will sign the information is
not only the investigating prosecutor but there must also be an approval
from the regional, provincial or city prosecutor.

Q: if this is dismissal, can the latter (regional, provincial or city prosecutor)


reverse the dismissal if they found the existence of probable cause? Who
can file the information?
A: yes, the provincial etc. prosecutor can file the information without
conducting another preliminary investigation.

Q: the information is now filed in court. Two weeks thereafter the prosecutor
filed a motion to withdraw the information. Is that a matter of right?
A: no. once the information is filed in court, control is now within the court.
(Crespo vs. Mugol) so it is within the court to grant your withdrawal.

Q: can there be instances when the PI, although mandated by law, but can
be dispensed with - without affecting the filing of information?
A: if the accused was arrested by virtue of a valid warrantless arrest provided
however there must be inquest proceeding for the purpose of filing the
information within 36 hrs for afflictive, 18 for correction, and 12 for light.

Q: what are the instances when an accused can b


A: 1. When the accused has committed, is committing or is about to commit a
crime/
2.when the person to be arrested has committed a crime and there is
probable cause based on personal knowledge that he committed it.
3.in cases of escapees

Q: during the inquest proceedings the arresting person without a warrant


denied it that there must be a conduct of preliminary investigation. Can you
do that legally?
A: yes, but the prosecutor must require him(the accused) to sign a waiver of
article 125 of the RPC. Without this, dont grant his request for the conduct
of Preliminary investigation and such denial is within the bounds and ambit
of the law.

Q: in the office of the prosecutor during the inquest proceeding, he(?) did not
demand for the conduct of PI. The information is already filed in court. Can
he still avail of that right?
A: yes, the counsel can still file a motion for the conduct of PI but it must be
made within 5 days from the time the accused learned of the filing of the
information against him.

Q: the inquest proceeding should be done by the investigating prosecutor and


he cannot deny it even in the middle of the night because if the required 36,
18 and 12 hrs. Unless an administrative case may be filed against him for

17
refusing the inquest proceeding. What about in cases when there is no
available prosecutor, what should the police officer legally do under the
situation?
A: directly file the complaint in court. It is now the court who will determine
whether the arrest was valid. If it is valid, the court will then submit it to the
office of the prosecutor so that he may file the corresponding information.

Q: the conduct of preliminary investigation took a long time. Can the accused
file an application for bail before the court? Is it allowed for the accused
temporary liberty?
A: yes, while the case still undergoing preliminary investigation, the accused
can file an application for bail. Even if you posted a bail, it will not be
considered as waiver in questioning the legality of the arrest.

Lecture 6

RULE 113 : ARREST

Judge Sabarre: In connection with preliminary investigation, when the


information together with the supporting evidences are submitted by the
prosecutor before the court within 10 days, the judge should determine the
existence of probable cause for the issuance of a warrant for the arrest of the
accused. Otherwise, if the judge is still in doubt, the law says he may require
the prosecution to submit additional evidences or if indeed there is a
probable cause then the judge may dismiss the case.
We are now on the concept of Arrest. Okay?

Oh! youll love our discussion tonight like what I did with section A.

Question: What is an Arrest?

Answer: An arrest is taking of a person into legal custody in order for him to
answer for the charge against him.

Thats very important that he should be arrested because what again


did I tell you? Di ba I told you that before? There has to be an arrest for the
accused for him to answer the charge filed against him for the court to what?
Eh, review lang. For the court to acquire jurisdiction over his person. Along
with, what is the other mode where the court acquires jurisdiction over the
accused? Voluntary appearance, diba?
Importante talaga this concept of arrest because this is one of the
modes by which the court, Me and my court, acquires jurisdiction over the
person of the accused aside of course from the other mode which is voluntary
appearance.
In fact, you look at me, my dear students, in cases where the accused
voluntarily appears in court, then, the warrant of arrest is no longer
necessary. Except ha if he voluntarily appears in court by filing a motion to

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quash. But in his motion to quash he only questions the jurisdiction of the
court over his person that is not deemed that he submitted himself to the
jurisdiction of the court, ha? So di ba, example lang, if the accused files a
motion to quash, the rule is, he submits already himself to the jurisdiction of
the court except if the motion to quash is only anchored on the question that
his arrest is illegal, okay? So take note of that my dear students.

Question: Now, when the arrest is effected, what are the rules daw which
should be observed by the arresting officers?

Answer: The arresting officer should state his authority to the person and
then he should inform that person to be arrested about the reason why he is
arrested except if the person to be arrested tries to escape or flees, for
example, in which case it can be done away with.

Question: Can the arresting officer use violence? Are they allowed to use
violence in effecting the arrest of the accused or unnecessary force?

Answer: No. Violence or unnecessary force are not allowed however they can
still use force to the extent necessary to capture or arrest the accused.

Question: Here is a very important question, which I noticed is always asked


in the Bar: If the arrest of the accused is improperly issued, or a warrant of
arrest was improperly issued, what is the remedy of the accused?

Answer: File a motion to quash the warrant of arrest.

Note: In a recent decision of SC, the writ of habeas corpus is not a proper
remedy because in habeas corpus, the accused is only released. The
proceeding can still continue. And one thing pa daw, if the information is
filed, so parang the detention is already legal kasi Habeas corpus is only
resulted to in situations when the arrest is definitely illegal. But once
information is filed, it is as if the arrest now is legal so you cannot resort to
the filing of a petition for the issuance of a writ of habeas corpus because at
the same time parang it will not serve the purpose. The accused will be
released lang pero it will not prevent the court from continuing with the
prosecution of the case.

Question: When would you file the motion to quash the warrant of arrest?

Answer: Before the arraignment. Before he enters his plea, because, this
ground can be waived. If the accused did not question the legality of his
arrest at the earliest opportunity that is before his arraignment, it is as if he
waived his right to question the same. Dapat he must demur before
arraignment. Otherwise if he did not question that and he allowed himself to
be arraigned he cannot question that anymore because tha fact that he

19
allowed himself to be arraigned, he actually waived his right to question the
legality of his arrest.

By the way, diba I said the word is motion to quash if that is a motion filed
before the arraignment. Pero if it is filed after arraignment, the word is motion
to dismiss.

Question: What is the life of a warrant of arrest?

Answer: It must be served within ten days from its receipt by the arresting
officer. However, the warrant remains valid even if beyond the 10 day period
but the serving officer has the obligation to report to the court on why the
warrant of arrest was not effected. The warrant of arrest remains valid even if
it goes beyond the 10 day period unless:
1. When the court issues an order recalling the warrant of arrest
2. The accused voluntarily surrenders himself to the court

Note: A search warrant has only a life of 10 days. If not effected in 10 days,
the search warrant automatically becomes null and void.

Question: What is an alias warrant of arrest?

Answer: An alias warrant of arrest will render lifetime coverage for the
returned warrant of arrest. The arresting officer must file the motion for the
issuance of an alias warrant of arrest. In cases lang `to where the warrant is
already returned by the arresting officer.

Question: Can the court issue warrant of arrest without putting how much is
the bond?

Answer: No. Except if the accused is sued for a non-bailable offense such as
those punishable by perpetua and life imprisonment.

Actually kami, when we issue a bench warrant in particular, we must


always specify the amount of the bail. There were already some judges who
were administratively held liable by the SC for issuing a warrant of arrest
without the suggested bail as to how much. That is the rule unless the
accused is sued for a non-bailable offense.
Di ba you refuse to appear, you are a witness, nareceive mo, you
refuse to appear. We can always declare you in contempt of court, issue a
warrant for your arrest but we always specify how much is the bond. That is
the requirement of the rules.

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Question: One of the most important concepts in connection with this concept
of arrest, are there instances of warrantless arrest? Because as a rule, when
you arrest a person, there must be a validly issued warrant of arrest but there
are also instances when a person can be arrested without warrant. This is
where well also see the citizens arrest. A private can make an arrest in any
of the following instances:

Answer: A peace officer or a private person may, without a warrant, arrest a


person: (sec 5. Rule 113)
a. When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense
b. When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it
c. When the person to be arrested is a prisoner who escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another

Question: Where can you find the requisites for the issuance of a valid
warrant of arrest?

Answer: It is embodied in sec 2, art 3 of 1987 Philippine Constitution

Question: What is the meaning of the word probable cause? Di ba we include


there mga hot pursuit.

Answer: These are the facts and circumstances sufficient to induce a person
to believe that a crime has been committed.

Question: Is it really required that the arresting officer without a warrant saw
the accused committing the crime para it will satisfy the requirement of
warrantless arrest number 2?

Answer: Not necessary. Probable cause is synonymous to actual belief or


reasonable suspicion. For example, if a person comes to the arresting officer
and informs that he saw the accused committing the crime and after that he
ran that is still based on personal knowledge, actual belief or reasonable
suspicion. That is the concept in its simplest explanation by the word
probable cause based on personal knowledge.
It is not required that the arresting officer must actually see the person
to be arrested committing the crime as long as he gets that from the point-of-
view of an eye witness right after the commission of the offense then that
would still pass within requirement as set forth in the second exception for
warrantless arrest.

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Question: What do you mean by the word has just been committed? Di ba
the law says has just been committed.

Answer: There must be immediacy to the alleged commission to the offense


to the arrest of the accused.

Question: Ill ask this question: The offense daw was alleged to just have
been committed today but the arrest was committed three days thereafter.
The police officer said no need of a warrant kasi that is daw pursuant to what
we call hot pursuit operation, is it correct?

Answer: It is not a form of hot pursuit since three days has lapsed already. It
may be considered as hot pursuit if the offense is a continuing offense.

Question: We go to an arrest made by a private person. What are the rules?

Answer: The arresting officer must introduce himself to the person to be


arrested and he must explain the cause of the arrest unless it would make the
arrest impossible, or if the person to arrested is actually committing the
crime, or if escapes, or if he flees.

Question: Now there is a provision here which says that one daw arresting
may require the presence of as many persons as there are to assist him in
the arrest. Di ba there is one? He may seek assistance. Is this section
applicable if it is a private person making the arrest?

Answer: No. The law provides it is only the officer who may require the
presence of as many persons for assistance. It does not apply to private
persons.

Question: Once the person now is arrested by virtue of warrant of arrest,


what will happen next?

Answer: He shall be brought to the nearest police station or jail.

Question: What about if the person arrested is placed on a warrantless arrest?


What are the requirements of the rules?

Answer: He shall be subject to Inquest investigation.

Question: Why is there inquest?

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Answer: Because the arresting officer has the obligation to bring the person
arrested to the proper judicial authorities within the 36, 18 and 12 hours,
respectively. Meaning to say, the appropriate information must be filed, thats
why I told you last meeting, in cases when during inquest investigation by the
prosecutor he demands, remember, for the conduct of regular preliminary
investigation, his demand can only be granted if he executes a waiver of the
provision of Article 125 of the RPC, which is delay in the delivery of detained
persons to the proper judicial authority.
That is what should be done if the accused is arrested without a
warrant. He should be brought to the proper judicial authorities within 36, 18,
and 12 hours, respectively, that is the inquest proceedings must be done so
that the corresponding information must be filed. Otherwise, if information is
not filed, he should be released. Otherwise he can be sued. That is why, like
what I said, that in case he demands for the conduct of regular preliminary
investigation, his demand is only granted by the prosecutor if he signs a
waiver of art 125 of the RPC.

Question: Is that waiver tantamount to a waiver of the legality of his arrest?

Answer: No. Even the posting of a bond is not a waiver of right to question
the legality of his arrest. As long as he can question that before he enters the
plea.

Question: While in jail or at the police station, what are the rights of the
person arrested?

Answer: He has the right to be visited by his counsel, 24 hours, at any time,
day or night. He may also be visited by his relatives but not 24 hours. The
relatives may visit the accused during day time. They may only visit him at
night in case of urgency.

Question: If these are violated, what are the sanctions?

Answer: The person obstructing the visit of counsel or immediate family or


relatives may be criminally sued based on RA 7438.

Lecture 7

Rule 114 : BAIL

Last Saturday, we were discussing on Arrest, which comes after the


filing of the information, because under the provision of the rules, the judge
within 10 days from receipt of the information has to determine the existence
of probable cause for the issuance of the warrant of arrest of the accused. We

23
discussed exhaustively the principle of arrest. If there are no more questions
after arrest definitely comes the concept of bail under Rule 114 of the 2000, I
repeat, this is 2000 Revised Rules of Criminal Procedure. If you want to be
impressive in the bar and the question relates to criminal procedure and you
want to quote, you always use The 2000 Revised Rules of Criminal
Procedure.

Question: What is bail?

Answer: Bail is the security given for the release of a person in custody of the
law, furnished by him or a bondsman, to guarantee his appearance before
any court.
There are provisions noh in sureties

Question: Bail can be in the following forms:

Answer: Bail may be given in the form of corporate surety, property bond,
cash deposit, or recognizance.

Ok. There are provisions noh on sureties, corporate sureties, I will not
let you expend (?), its so easy, noh? But actually in reality, these are the
insurance companies who would actually grant mga bail bonds. But I know in
its actual application, for your information lang, I know that you have to pay
an amount equivalent to 30% of the amount of the bail, parang as premium.
Pero there is a new guide now, from the SC. that unlike before where the 30%
takes up to the end of the case, not anymore now. They have to renew it then
read (?) it. Therefore the accused has to pay for the time the 30%penalty on
bail bond. And then we always have to get the certification of the SC that
they are allowed to post bail bonds and the certifications that they are not
delinquent etc. In fact, if you want also to be one of the insurance companies
who would be allowed to post bail, then you would also have to apply that
before the executing judge of every RTC. So the qualifications of sureties are
all there. Im not so interested with that, Im sure that will never be asked in
the bar.
Cash deposit. You pay this before the clerk of court. In the absence of
COC, you can also pay cash deposit at the nearest municipal or city treasurer.
Tapos you get the receipt and then you send that to the court for purposes of
bail.

Question: What is the rule on property bond?

Answer: Once the property bond is approved, of course the law does not only
say that it must be covered by a title. Pero it also will cover mga tax
declarations lang, as long as these are clean, there no encumbrances, so to
speak. The court would usually approve it.
Question: But once approved, what are your obligations?

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Answer: Must be annotated within 10 days upon approval of the property
bond. We are required by the rules to annotate the bond in the title or tax
declarations of the properties at the provincial or city Register of deeds of the
property where it is located. Otherwise, if not annotated, within ten days, the
bail shall be cancelled and the accused will be rearrested.

Question: What is recognizance?

Answer: Accused is placed before a respectable member of the community


appointed or as approved by the court, no need to post anything. And that
person has the obligation to bring the accused into the court whenever his
presence is needed.

Question: Recognizance is availed of in the following cases:

Answer: 1. when the offender is youthful offender/ minor. More often than not,
the youthful offender is placed on recognizance of his parents if qualified
2. when he is sued for a violation of municipal or city ordinances, light
offenses or offenses which are punished by imprisonment not exceeding 6
months or a fine not exceeding 2000php provided that he does not fall under
the following exceptions: (this is pursuant to RA 6036)

(a) When he is caught committing the offense in flagranti


delicto;

(b) When he confesses to the commission of the offense unless


the confession is later repudiated by him in a sworn
statement or in open court as having been extracted through
force or intimidation;

(c) When he is found to have previously escaped from legal


confinement, evaded sentence, or jumped bail;

(d) When he is found to have previously violated the provisions


of Section 2 of RA 6036

(e) When he is found to be a recidivist or a habitual delinquent


or has been previously convicted for an offense to which
the law or ordinance attaches an equal or greater penalty or
for two or more offenses to which it attaches a lighter
penalty. Meaning to say there is reiteracion or habituality.

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(f) When he commits the offense while on parole or under
conditional pardon; and

(g) When the accused has previously been pardoned by the


municipal or city mayor for violation of municipal or city
ordinance for at least two times.

Please get a copy of RA 6036, I repeat, these are the exceptions that
there can be recognizance if he is sued for a violation of a city or municipal
ordinance, light offenses or offenses punished with imprisonment not
exceeding 6 months or fine not more than 2000php EXCEPT if he will fall
under the exceptions that were given. So if he turns out to be a recidivist,
even for a light offense, he will not be eligible for recognizance, he must post
for a bail.

When the accused applies for probation, remember, all in all 75 days of
waiting because the probation office is given 60 days to conduct an
investigation. The judge has 15 days to resolve whether to grant or deny the
probation.

3. When the accused has already served sentence equal to the penalty
or has served the minimum of his penalty without regard to the
indeterminate sentence. Pwede na sya, can be placed on recognizance.

Question: What will happen to the accused if accused is sued for an offense
where there is no bail? Diba mga cases covered by the Rules of Summary
procedure, when there is no bail, mga slight physical injuries lang, mga BP
No. 22 lang, diba you are sued but no need to post bond. It is not the same as
no bond, as in, in capital. There are talaga offenses where in you are not
required to post bond because these are covered by the rules of summary
procedure. Di ba while waiting for the application you can post bail or either
you can be placed in recognizance by the court on a respectable member of
the community.

Answer: In cases covered by the rules of summary procedure you dont


appear in court, we issue a warrant for your arrest, youre arrested, you can
be placed on recogizance.

Di ba in cases covered by the Rules of Summary Procedure there is no


arrest there, I told you that, so if you did not appear, you can be arrested but
you can be placed under recognizance by the court.

By the way, we were talking about arrest last meeting, I just forgot to
emphasize that in cases covered by the rules of summary procedure the
court will not issue a warrant for arrest of the accused. What we will issue

26
would is an order requiring the accused to submit his counter-affidavit and
the affidavit of his witnesses within 10 days from the receipt of the order. If
he will not comply, thats the time we will issue a bench warrant or warrant
for his arrest. In that case he can be placed under recognizance or he can
post bail.

Question: What is the rule if accused is sued for a crime punishable by


destierro and he is under detention?

Answer: If it is found that he already exceeded penalty and he is still in


detention, the court will order for the release without prejudice to the
continuation of the case.

Question: If you are sued for an offense punishable by destierro, how many
days lang ang detention?

Answer: 30 days. After 30 days, the accused shall be released on


recognizance.
Ok, those are the instances where recognizance can be availed of.
Meaning to say, instead of posting bail, you can just be placed on a
respectable member of the community as determined by the court accused
while your case is on- going.

Question: Bail can be a matter of right, or matter of discretion. Pero what is


the rule? There must always be what?

Answer: There must always be a hearing. You always give the prosecution a
chance to make recommendation as to how much is the amount of bail. But
in actual application, once information is filed, the prosecutor has already
given a recommendation as to how much is the bail although such
recommendation is not actually binding on the part of the court.

Question: Why is it in all instances as long as the offense is bailable, is the


accused entitled to bail?

Answer: Because of the presumption of innocence.

Question: When is bail a matter of right?

Answer: 1. Before or after conviction at the first level court. MTC, MCTC,
MetTC.
2. Before conviction at the RTC.
3. In cases not punishable by death, reclusion perpetua and life
imprisonment.

27
All others, therefore, becomes a matter of discretion. Because in reality
when you are convicted before the RTC and your conviction is an
imprisonment of 6 years and 1 day and up your right to bail is lost. It is now a
matter of discretion. The counsel then files a motion to allow the accused to
still make use of his bond while the case is on appeal before the Court of
Appeals.
In its actual application, not unless he falls on the 5 exceptions in
section 5, which you have memorized, I will grant it the bail but I will require
you to post an additional bail bond while the case is on appeal before the CA.
Because once he is convicted by the RTC for an offense punishable by a
penalty by imprisonment of 6 years and up, even if his case is on appeal, he
could no longer post bail or make use of his bail.

Question: What are the 5 instances under section 5 of Rule 114 where the
accused is denied bail or his bail be cancelled?

Answer: (a) That he is a recidivist, quasi-recidivist, or habitual


delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded


sentence, or violated the conditions of his bail without valid
justification;

(c) That he committed the offense while under probation, parole, or


conditional pardon;

(d) That the circumstances of his case indicate the probability of flight
if released on bail; or

(e) That there is undue risk that he may commit another crime during
the pendency of the appeal

Memorize!

Question: Can the bail be returned to the accused?

Answer: Yes, if the case is dismissed or if he is acquitted. If he is convicted,


the bail may still be returned as long the conviction is by final judgement. In
fact, if his probation is granted, the court will also return the bond because
anyway, if he violates any of the conditions of the probation and its proven
during the summary hearing that it was not justified, the accused will be
rearrested. But once the probation is granted we are mandated by the
probation law to return now the bail to the accused. I repeat, that is why the
lifetime of a bail is up to conviction by final judgement unless it is sooner
dissolved or cancelled by the court. But the lifetime is always after conviction
by final judgement although subject to rules like what we have discussed.
Excessive bail is not allowed.

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Bail is also a matter of discretion if the offense is punishable by death,
perpetua or life imprisonment. Tell me if the court is correct with the
situation.

Question: Here is a 16 year old minor who was sued for the crime of member.
And murder is not bailable because murder is punishable by perpetua to
death. He was denied bail by the court. Is the court correct in this situation?

Answer: No. Because minority is a privileged mitigating circumstance which


lowers the penalty to a degree, thus the punishment becomes reclusion
temporal. Or if the allegations in the complaint contains two mitigating
circumstance and there is no aggravating circumstance, it will lower the
penalty to one degree. Therefore you still have to allow him bail.

Question: Diba death, perpetua, life imprisonment, non-bailable; if you want


to post bail, what will you do?

Answer: File a motion or petition to allow bail.

Question: Once petition is filed, what kind of hearing is supposed to be done


by the court?

Answer: Summary Hearing. For the purpose of determining whether the


evidence of the accused is strong or not strong. Take note that in the SC
circular now, here it is only the prosecution who should present, in the
circular the defense is likewise entitled to present evidence during the
hearing to prove that the evidence of his guilt is not strong. That is a new
regulation. Tapos another one pa,before dapat one by one, ngayon you can
present all your witnesses in one setting. Kami, we can ask one from another,
because we have to resolve the motion within 48 hours; the court must
resolve whether bail shall be granted or not.

Lecture 8

Rule 114: BAIL (continuation)

Bail: Whether it is a matter of right or a matter of discretion, there


must always be a hearing to give the prosecutor the chance to at least give a
recommendation for the amount for bail. But just like what I said, in actual
reality, when the information is already filed in court and the accused is
charged for a bailable offense the prosecutor wouldve usually already made
a recommendation. While it is true that they have the DOJ bail bond guides
these are only recommendatory for the part of the court, it is not controlling,
because at the end of the day, particularly in instances where the accused
will file a motion to reduce bail bond, it is discretionary on the part of the

29
accused to have the court reduce the bail bond taking into account the
factors which were enumerated in one of the sections of this particular law.
And in cases when the accused was convicted before the RTC for an offense
not punishable by death, perpetua or life imprisonment, bail there is a matter
of discretion, in fact that bail can still be acted upon by the court even after
the period to appeal as long as the records of the case are not yet forwarded
to the appellate court. This is what we call the residual power. These are
some of the powers which the court can exercise even after the period of
appeal has already lapsed but before the court transmits the records of the
case to the appellate court, although, like what we said, in cases where the
decision changed the offense from non-bailable to bailable, the matter can
only be treated by the appellate court.
I told you, in cases of bail which are matter of discretion after
conviction of imprisonment of 6 years and 1 day and more, the court would
usually approve it unless you fall on the 5 exceptions which were enumerated
last meeting.If you will fall on the 5 exceptions, definitely you will not be
allowed for bail while your case is pending appeal before the CA, because in
this particular instance, the bail is a matter of discretion.

Question: Where can the accused post bail?

Answer: At the court where the case is pending.

Question: What about if the Judge of the court where the case is pending is
not around because he is on official leave in Manila attending the seminar by
the Philippine Judge Association, what will you do?

Answer: You may file the bail at any other RTC because this is a multi sala
court, if none, any first level court judge will be allowed to accept the bail.
This is always true in reality; sometimes you are arrested in another
place other than the place where the crime was committed. Example, the
crime was committed in Basey but you were arrested in Tacloban City, you
can also post the bail at any of the court at Tacloban. Pwede yan. This is
usually happening in reality, you charged in Manila. A warrant of arrest was
issued. You were arrested in Tacloban; you may post the bail at the RTC of
Tacloban or if not before the first level courts.

Question: Once the bail is granted, what is the obligation of the court under
the law?

Answer: To transmit the records of the bail including the release of the
accused to the court where the case is pending.

Question: And that court upon receipt of the records may be allowed to what?
Under our law?

30
Answer: The court may increase the bail once the court finds out that the bail
is not sufficient. In case the accused will not post the increased bail therefore
he will be arrested again by the court.

Question: The case is still undergoing preliminary investigation at the office of


city the prosecution of Tacloban City because the accused was arrested in
flagrante delicto but you move that the regular Preliminary Investigation be
conducted and you signed the waiver of article 125. But it took long for the
office; its been already 6 months when it was filed when you were arrested
and yet there is no bail yet to the P.I. What will you do as counsel of the
accused?

Answer: File a petition to allow bail. Before the case is filed in court, you dont
file motion but a petition to allow bail.

Question: What is the duration of a bail?

Answer: From the time he posted the bail and approved by the court until the
promulgation of the sentence, unless, of course, sooner cancelled by the
court under the valid grounds, as provided for by the law.

Question: If the accused does not appear in court inspite notice and that
accused posted bail, what is the alternative of the prosecutor?

Answer: The prosecutor may file the motion to cancel the bond and an
issuance for a warrant of arrest.

Question: Is bail bond immediately forfeited in favour of the government?

Answer: No. The bondsman is ordered to explain, within 30 days, in writing


why the bond shall not be forfeited in favour of the government. It is the
obligation of the bondsman to bring the accused to the court when his
presence is needed, and to produce the body of accused upon promulgation
of his sentence.
The court can issue an arrest warrant, we call that a bench warrant, for the
arrest of the accused after forfeiture of his bail.

Question: In cases, however, going back to where the bail is filed, if you want
to reduce bail, where will you file it?

Answer: It should only be filed in the court where the case is pending because
it is a matter for the court to determine whether the reduction is allowed or
not. It cannot be filed in any other place.

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You notice that the SC circular order talks about mga decongesting of
jails, particularly for detention prisoners and one of the parts of the circular
talks about the right to bail. And these will be in cases when you are sued for
a non bailable offense because it is punished by death, perpetua,
imprisonment or you are charged for what we call capital offense as defined
in Rule 114.

Question: If you wan to post bail, what should you do again in these particular
cases?

Answer: File a motion to allow bail before the court where the case is
pending. The court should conduct a summary hearing to determine whether
the guilt of the accused is strong or not strong.

Under this circular, summary hearing, after the presentation of


evidences, the court will issue an order reciting what happened during the
summary hearing and should make an order whether to deny or grant bail to
the accused within 48 hours.
In fact any complaints daw filed against the judge who granted bail can
subject the lawyer to disciplinary action.

Question: Is arraignment necessary before the court would be able to treat


the motion to allow bail?

Answer: No. Although in actual application we do it, it is not necessary. In


fact, that should be given more priority because that will not prevent the
accused from invoking other remedies so to speak like a motion to quash
based on certain defect. Because once there is an arraignment, you are now
precluded from filing a motion to quash except in the enumerations excepted
by the rule. And that should daw be the correct procedure na dapat the bail
hearing must be conducted before the accused is arraigned. So the practice
of Judges not to treat motions to allow bail until after the accused is arraigned
is actually not legally taped under these circumstances.

Question: What is the change in this administrative circular to that of the


2000 Criminal Procedure? Which should enjoy priority against all other cases?

Answer: Di ba before it is only the prosecution who will present evidence to


prove that the evidence against the guilt of the accused is strong. In the
circular, the accused is also allowed to present evidence if he wishes to prove
that the evidence against his guilt is not strong. You cannot find that in the
rules of criminal procedure but you can find that in the circular. Both parties
na are allowed to present evidence.
In fact, the affidavits daw which were already submitted as a basis for
filing the information to the court can also be used by way of direct
examination for the part of the witnesses. Now dapat na during the bail
hearing all the parties witnesses should be present. So parang kuridas na, I
am ask him then ask her, ganun ganun lang kasi its very urgent na.

32
So when you file a motion for bail, you need to see to it that when the case is
scheduled all of your witnesses are already present because the court can
just ask any question to all of them, Ok? Please take note of that. That is
actually the innovation in the circular. Please read each of the sections
because I just placed emphasis on parang the changes there vis--vis the
rules on summary procedure.

Rule 115 Rights of the Accused

Our next rule is more substantive than procedural.

Question: What are the Rights of the Accused?

Answer: (a) To be presumed innocent until the contrary is proved


beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation


against him.

Question: Why is it that it is a right of the accused to be informed of the


nature and cause of accusation against him?

Answer: So the accused can prepare for his defense.

Question: At what stage of the proceedings of the case where the accused is
informed of the nature and cause of the accusation against him?

Answer: Arraignment. If trial proceeded without the accused being arraigned,


all the other proceedings will automatically become null and void.

Question: What are the stages wherein the presence of the accused is
required?

Answer: 1. During arraignment since this is where the accused is informed of


the nature and cause of the accusation against him.
2. During promulgation of the sentence unless it is for light offenses.
He can send his representative or his counsel instead.
3. When necessary for purposes of Identification of the accused.

Question: Next right?

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Answer: Right to meet the witnesses face-to-face.

Question: Next?

Answer: Right to have speedy, impartial and public trial.

Question: Can there be instances where the public can be excluded?

Answer: 1. Hearing involving minors (CICL).


2. Private offenses which includes rape because the evidences which
would be presented would be contrary to decency and to public morals.

This is always an overused defense, Your Honor, We will object


because it is now violating the right of the accused to speedy trial. This is
correct, noh? And remember that once the case is dismissed on the grounds
of violation the accuseds right to speedy trial that is tantamount to acquittal.
You cannot refile the case because that will now place the accused in double
jeopardy.

Question: What is the test that will determine if there is a violation of your
right to speedy trial? And under what law is it anchored?

Answer: The court will anchor it on The Law on Speedy Trial. That will be our
basis on granting the motion on whether indeed there is a violation. We will
discuss that on Monday. Get a copy of that Law.

Question: Give me the next right?

Answer: Right to testify on his behalf

Question: Can you compel the accused to testify?

Answer: No, because doing so will be violative of his right against self-
incrimination.

Question: If he wants to testify, can he be cross-examined on questions for


the purpose of testing his credibility?

Answer: No. The accused can only be cross-examined on matters which were
taken during the direct examination. If the question was not taken during

34
direct examination, that is objectionable because that is not in accordance
with the rules on evidence. Pero if these are witnesses other than the
accused; we have greater leeway we can ask as many questions as there are
even questions to test the credibility of the witness. But not, I repeat, on the
accused. Take note, object kaagad, ha? Because these can be waived.

The right of the accused to testify on his behalf is always in connection


with the principle of the right of the accused against self- incrimination.

Question: The accused was presented in court. He was told by the judge to fit
in a shoe which was found in the place where the crime was committed. It
was objected to by the counsel of the accused, violation of the right of the
accused against self-incrimination. Objection was overruled by the court. He
was allowed to fit in the shoes. In an adultery case where the woman was
ordered to submit herself to a medical examination to determine if she was
pregnant oppose also was overruled. Another one, he was told to urinate to
get a sample to determine if he was positive for drug use, a violation against
RA 9165 before the RTC, Branch 30, Basey,
Samar. And I was the one who overruled all these objections. Am I correct in
overruling the objections?

Answer: Yes. The right against self-incrimination includes not only oral
testimonies but likewise documentary evidences but in cases of oral
testimonies, it does not cover purely mechanical acts. The right against self-
incrimination involves mental, writing involves mental. But the other things
which are purely mechanical acts are not covered so the court may compel
the accused and there is no violation of the right of the accused.

Question: Next right?

Answer: Right of the accused to secure the attendance of the witnesses in his
behalf. That is why the accused can always ask aid from the court for the
issuance of subpoena duces tecum and subpoena ad testificandum. That is
one of the rights. To secure the attendance of the witnesses.

Question: What else? Two more na lang? If you are convicted you have the
right to?

Answer: Appeal.

Question: If you are acquitted, do you have the right to appeal?

Answer: No, because it will place the accused in double jeopardy.

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Next meeting is Law on Speedy Trial then Rule 116 then 117.

I told you to read Republic Act No. 8493 the so called Law on Speedy
Trial of 1998
Student A to start with, you just give me, I repeat, republic act no. 8493
otherwise known as the Law on Speedy Trial of 1998 and until today still
applicable, not amended not repealed, we still apply that up to this time,
What are some features lang of this particular republic act? There is one
required here, absence of which might affect the validity of the proceedings
against the accused. Sec. 2 if Im not mistaken, mandatory, Pre-trial,
mandatory na yan. Actually before 1998 when that law did not take effect
yet, actually pre-trial was functioning, in particularly in criminal cases. But
when it took effect, we could no longer do away with the pre-trial, it is now
considered as mandatory.
And although the pre-trial conference requires the presence of the private
complainant as well as the accused. What is the effect daw if the counsel of
the accused or the prosecutor of the case failed to appear? What are
sanctions daw here?
The Law says talaga failure of the counsel ort the prosecutor, the law did not
say failure of the accused or failure of the private complainant. The law just
says failure of the counsel of the accused or of the prosecutor handling the
case during the mandatory pre-trial conference as ordered by this law would
what? What will be the legal consequences? Sanctions or penalties that may
be imposed by the court on them? It did not say that the case would be
dismissed, the law says the court may impose sanctions and penalties on
them.
You said earlier the law likewise prescribe time limit for the trial and that
would be within how many days? Trial must be terminated within 180 days,
but there are however allowable deductions, as to what these allowable
deductions are you can find the in section 10 of republic act. 8394. Example
the accused has to be subjected to a mental examination or treatment. Dont
tell me naman that you will not exclude that from the counting noh? Yes this
is one of the valid allowable deductions from the 180 days, pero sa totoo lang
this does not apply in reality, parang this law, I dont know maybe the makers
of this law were not practicing lawyers, will actually see the reality of how
cases, but these are ideals of course, but likewise tere are certain factors that
would nalso contribute for non-termiantion of the case within the prescribed
period of 180 days, but you know what this will become important, if the
counsel of the accused files a motion to dismiss on the ground of the violation
of the right of the accused to speedy trial because like what I did in some of
the cases inresolving the motion I really have to use republic act 8394 or if
indeed there was a violation of the right of the accused to speedy trial.
Because the accused is given a right under this law noh. To question that and
move to dismiss the case, cause the case is not brought within the time limit
as prescribed by the rules. If the accused did not do anything and that is his
problem, that is considered under the rules as a waiver of his right to actually
question the fact that the trial of the case was made within the time limit as
provided for in this republic act subject to allowable exclusions under republic
act no, 8394. So those are the meat. I told you to get a copy of the republic
act because your brain damaging midterm examinations is forthcoming and
that will not prevent m,e from asking questions relative to some of this
sections which are found in this not so long act republic act no, 8394. Ok? No
problem?

36
RULE 116: ARRAIGNMENT
Student A what is arraignment?
Arraignment is the procedure where the accused is informed of the nature
and cause of the accusation against him.
Can it be waived? Can arraignment of the accused be waived? It cannot, it
should be read in open court. A waiver of that would mean that the entire
proceedings would become null and void. The arraignment should be done in
open court. What are rights of the accused before arraignment? The basic
right. The right of the accused to be assisted by counsel, if he cannot afford
the services of a counsel under this rule the court must provide for a counsel
de officio who is able and competent. But the law says also noh in areas
where there are no lawyers, a non-lawyer of probity may be allowed to
appear, even the accused himself may appear by defending himself although
it is not followed now because in almost all areas there are already lawyers
now be that as it may the rule recognizes the fact that even non-lawyers may
be allowed to appear to defend an accused. So that is a constitutional, not
only a procedural right but a constitutional right that cannot be waived unless
also with the presence of counsel.
Then, what is done during arraignment miss A?
The information is read in the language or dialect known to the accused.
Should be read in open court in a language known and understood by the
accused. And he is asked whether he pleads guilty or not guilty, he remains
silent all the time. What will I do as the presiding judge of the court? The
court will enter a plea of not guilty in favor of the accused who refuses to
plea.
What is the effect? Here is an accused who pleaded guilty, but he presented
exculpatory evidences. What is the effect of that? It does happen sometimes.
So what is the effect of that? He wants to enter a plea of guilty but the
accused raised exculpatory evidences. You know what are exculpatory
evidences? He raised legal justifications why he committed a crime mga
justifying and exempting circumstances. In this instance what will happen
daw? Instead of plea of guilty it shall instead be not guilty, including an
improvident plea of guilty, what is an improvident plea of guilty? It will be
considered by the court as not a plea of guilty but actually a plea of not guilty
in fact, it may be changed in any stage of the proceedings if it turns out that
the plea of guilty of the accused was improvident. I love the word
improvident! What is that? It is always asked in the bar. I notice it in criminal
procedure. It is an involuntary plea which the consent of the accused or a
plea that the accused did not understand the meaning and the consequences
of his plea, it may be changed into a plea of not guilty in any stage of the
proceedings. So please take note of that.

Mister B? Mister B before the arraignment the counsel of the accused noticed
that some of the allegations in the information are vague and indefinite. You
are the counsel of the accused what will you do? I repeat some of the
allegations in the information are vague and indefinite. Yes file a motion of bill
of bill of particulars because diba naman if the allegations are vague and
indefinite how will the accused understand? And how will he make his plea?
An intelligent plea, the law allows you to file a motion for bill of particulars
but you have to specifically allege which portion of the information, not
naman the entirety, which is vague or indefinite. Must be a private

37
complainant be present during the arraignment of the accused? What is the
purpose? Why is it that the private complainant must be present during the
arraignment of the accused? For plea bargaining purpose. What else? Usually
for plea bargaining purpose but there are other reasons other than plea
bargaining. Ya. Determination of civil liability and the imposition of the correct
penalty.
You mentioned about plea bargaining, what is this mister B? What is plea
bargaining? Pleading guilty to a lesser offense, do not forget the word ha,
which is necessarily included in the information. Like Murder, he can enter
into a plea of guilty to homicide, but it requires what in our rules? There must
be what under our rules? The rule if that is not complied with the accused
cannot enter into a plea of guilty to a lesser offense as necessarily, dont
forget to include the word, necessarily included in the information. Murder
includes homicide. Would murder include serious physical injuries? No.
because in serious physical injuries, there is no intention to kill. But in
homicide, in murder there must be intention to kill. There must be what?
Consent and conformity of the offended party and the prosecutor. Although
the offended party was duly notified but he failed to appear. Then what will
happen? The prosecutor alone may give the consent to the accused to enter
into a plea of guilty to a lesser offense which is necessarily included, my dear
students, in the information. I repeat for the last time. Very important when
you become lawyers. The law allows the accused to enter into a plea of guilty
to a lesser offense which is necessarily included in the information. There
must be consent and conformity of the offended party and the prosecutor.
Although the rule says, if in case the offended party was duly notified and he
failed to appear, the prosecutors consent alone is already sufficient
according to the rules. Okay? So we are clear on that particular point.

Accused was charged for murder, because of the death of Pedro, in open
court and assisted by a counsel of his own choice entered into a plea of guilty
to murder. After his plea of guilty, the court meted a decision and
promulgated it the following week. Comment by citing pertinent provisions.
At the end of the day is the court correct? Correct. Why is the court correct?
What should happen? And what should be the procedure after an accused
pleaded guilty to a capital offense. A capital offense is one punished by
death, perpetua or life imprisonment, murder is a perfect capital offense.
Under our rules, what will the rule require? The court should compel the
prosecution to present evidences to determine the exact liability of the
accused. Do you know mister B? that even, there are instances, that even the
accused pleaded guilty at the end of the day still acquitted by the court.
There are! Because the prosecution does not prove the crime beyond
reasonable doubt to determine the real culpability of the accused. If the
prosecution cannot prove it, even the accused pleaded guilty, he might be
acquitted later. This is one consequence. Although plea of guilty in non-
capital offenses presentation of evidence is discretionary. Because in non-
capital offenses we are actually allowed to mete out the corresponding
penalty and promulgate the decision right away. Pero This are in non-capital
offenses. In capital offenses, No. the court should always require the
prosecution to present its evidence. In fact in the hearing likewise, the
accused may also present his own evidence.
Miss C. Im just following what is ano in my hand ha. You listen ha. The plea of
guilty to the lesser offense should be made during the arraignment and if not,
pwede pa in any stage but before trial. Pwede? Noh? So, but I didnt like it if
the arraignment proceeded scheduled for pre-con and pre-trial, he can still
avail of that. Here is a case, you listen ha, and I love this case of mine, if you

38
dont like it, I love it! He did not want to enter into a plea of guilty to the
crime of murder. So trial of the prosecution went on. When the prosecution
has already rested its case, tapos na. Formally offered exhibits, exhibits were
admitted, the prosecutor said Your honor, with the admission of our exhibits,
we are now resting our case. The accused filed a motion, to allow him to
enter into a plea of guilty, to the lesser offense of homicide. You are the court,
will you grant it?
Tapos na. The prosecution has already rested its case. Now the accused filed
a motion that he be allowed to enter into a plea of guilty to the lesser offense
of homicide. You are the court. Miss C: I will not grant it.
JS: you know what in procedure. I can always ask daw questions that are so
nicely worded. Like this one, you will not grant it?
Miss C: I will not grant it.
JS: What about if I will insist that youll grant it. Would you follow me?
Miss C: No
JS: No? Talaga?
Miss C: Absolutely not
JS: Ay absolutely no. what about if Ill still insist! Miss C. Will you not like me?
Miss C: Because the law provides that there are no such
JS: I dont know if there is one comment there in the book of Herrera, on
question like this. What about if this is the situation ha. Murder siya, with the
qualifying aggravating circumstance of treachery, you are the prosecution,
were they able to prove treachery, would you not allow it?
Miss C: The prosecution has already rested?
JS: Rested na ang prosecution, pero you were able to prove the fact of death
but not the aggravating circumstance of treachery. Would you not still allow
it?
Miss C: Since the
JS: Would you not grant it? I know this is not in the book noh of Herrera.
Actually in one case it can still be allowed. Yes! Kasi the prosecution was not
able to prove the qualifying aggravating circumstance as alleged in the
information but they were able to prove the fact of death. According to the
Ssupreme Court, you allow that, because at the end of the day, the accused
there would still be convicted of homicide. Mas better nga to shorten the
procedure. That is very hypothetical one. But there is one case there, Ill give
you that case there, where the Supreme Court allowed that noh. Because
correct talaga din, since the prosecution daw was not able to prove the
qualifying aggravating circumstance of treachery, which will qualify the case
to murder, then it is still proper for the accused to enter into a plea of guilty
to the lesser offense of homicide even after the prosecution has already
rested its case.
If the accused daw Miss C is under detention he should be arraigned within
how many days? 3 days if not under detention within 10 days from the time
the court acquired jurisdiction over the person of the defendant. Can there be
instances when arraignment of the accused may be postponed? Yes! No. 1!
With the very loud voice. I like my discussion tonight after all that very hot
there. I love the air condition. The air condition unit just help my mind to work
really very fast.

39
Ya, when the accused is suffering from mental diseases which requires
treatment and examination in fact the court daw can make an order,
requiring to order to undergo mental examination.
No. 2! When there is prejudicial question. I love it!
No. 3 and Last. I told you this already. I told you this before. Im a little grittish
tonight. Little grittish ha. But not all the time. Can you file a petition for
review of the resolution of the prosecutions office? Yes! When there is a
pending petition for review before the Secretary of Justice, before Leila
Delima. But! There is a limit, not to exceed sixty days. Pag the Secretary of
Justice has not yet resolved the petition for review within sixty days, could no
longer postpone the arraignment, arraignment of the accused has to proceed.
Ok so 3!
1. When he is suffering from mental disorder, which will require mental
examination or treatment. The court should give an order to the
accused to be subjected to mental examination or treatment.
2. When there exist a prejudicial question
3. When there is a pending petition for review before the Secretary of
Justice but not to exceed sixty (60) days.
Book of Herrera (Section 11.)
1. The accused appears to be suffering from an unsound mental condition
which effectively renders him unable to fully understand the charge
against him and to plead intelligently thereto. In such case, the court
shall order his mental examination and, if necessary, his confinement
for such purpose;
2. There exists a prejudicial question; and
3. A petition for review of the resolution of the prosecutor is pending at
either the Department of Justice, or the Office of the President;
Provided, that the period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing office.

Ok. You look at me again. Before, we discussed about the concept of


amendment and substitution of the information. Here is a very important
question Miss C. If the information is amended, must the accused be re-
arraigned based on the amended information? May original information, he
was already arraigned, he filed a leave of court to amend the information to
the fiscal, it was allowed, must the accused be re-arraigned based na on the
amended information? It depends, on whether it is as to substance, there
must be re-arraignment. But form, No. Why effect is pag amendment ka the
original information is withdrawn just like in a complaint. You amend the
complaint, the original complaint is withdrawn. So there has to be re-
arraignment, if this is as to substance. Perfect example is, if the amendment
will change the theory of the prosecution or change the defense of the
accused, that is an amendment which is of substance and therefore the
accused must be arraigned pursuant to existing rules of procedure. Ok? Clear
tayo?
I repeat ha. I depends whether the amendment is formal or substantial. If the
amendment will change the theory of the prosecution or change the defense
of the accused, that is a substantial amendment and under the rules the
accused must be re-arraigned based on the amended information. Failure of
which will render the entire proceedings as null and void.

40
Ok. I go back to the plea of guilty to the lesser offense, do you have to amend
the information ba if the accused is willing to enter into a plea of guilty to the
lesser offense? No. Correct. But it does not also prohibit that the information
be amended to conform to the plea of guilty of the accused. The law has
been clear ha, if the accused wants to enter into a plea of guilty to the lesser
offense, the rule says the information need not be amended. But there is also
no prohibition for the information to be amended. In that case miss C, is there
an advantage to not amending the information to that of amending the
information, if the accused wants to enter into a plea of guilty to the lesser
offense as necessarily charged in the information. Is there an advantage?
What is the advantage if you will amend the information? You request the
fiscal to amend the information. Can there be an advantage compared to not
amending the information. If the information is not amended you want to
plead of guilty to homicide, can the court appreciate the plea of guilty as a
mitigating circumstance? No, because the plea of guilty to be appreciated as
a mitigating circumstance has to be to the offense charged. But if you will
amend the information to conform to the plea, you entered your plea now it is
already pursuant to the information so that can now be appreciated as a
mitigating circumstance. That is the advantage. The plea of guilty can be
appreciated as a mitigating circumstance if the information was amended
compared to no amendment of the information.
Mister D, just part lang no we will continue on Wednesday. You are the
counsel of the accused noh, and you want to prepare for the pre-trial
conference, to protect the interest of your client, What right is given to you?
To prepare for the pre-trial? Under our rules, what right is given to your client
to prepare himself for the pre-trial conference and eventually for the trial of
the case? Or what can you avail of? You want to prepare and this is supposed
to be talaga ano eh should be done by all lawyers. In fact in our seminars, the
lecture would always emphasize this noh. To protect the interest of your
client, to prepare your client for the pre-trial and trial eventually of the case,
there is one right which can be availed of? And of this is found in the
provision of this rule and thats the last for this ano. Correct Mode of
discovery and the last section is motion for the production and inspection of
documents. Pwede ka. Para ba to prevent surprises during trial. You will know
what documents are supposed to be presented by the prosecution against
your client. You can file a motion for the production and inspection of
documents. Last for you tonight. But you will continue on Wednesday. It
covers all documents. Is there an exception? If that is what you would like to
produce and inspect. I will deny it if I am the presiding judge because that
falls on the exceptions. All documents, papers ya are open for production,
photocopying, and inspection of both parties except this one. As long as it is
not privileged. That is the limitation. Diba yung mga privileged
communications remember? Those are the limitations under this rule.

RULE 117: MOTION TO QUASH


I repeat ha para you will never commit a mistake, if you file the motion before
arraignment you term it as a motion to quash. But if you file the motion after
the arraignment of the accused you call it a motion to dismiss. Ok?
One of the remedies which can be resorted to by the accused Mister D is to
file a motion to quash noh because the motion to quash must be made before
the accused enter his plea. Correct?
It must be in writing, signed by the accused and/or his counsel and it should
specify the factual and legal grounds

41
Enumerate to me the grounds to start with
1. The facts charged do not constitute an offense
2. That the court trying the case has no jurisdiction over the offense
charged;
3. That the court trying the case has no jurisdiction over the person of the
accused
4. That the officer who filed the information had no authority to do so;
5. That it does not conform substantially to the prescribed form;
6. That more than one offense is charged except when a single
punishment for various offenses is prescribed by law; -diba you know
that already that the information must only invoke one offense except
of course those which the law allows.
7. That the criminal action or liability has been extinguished;
8. That it contains averments which, if true, would constitute a legal
excuse or justification; and
9. That the accused has been previously convicted or acquitted of the
offense, or the case against him was dismissed or otherwise
terminated without his express consent.
Last question youve memorized it ah. In any of this grounds mister D, if the
court grants your motion, can you still refile your complaint?
Yes, except for two circumstances
1. If it will place the accused in double jeopardy
2. If the criminal action has already extinguished.
Ok so take note ha as a general rule if the motion to quash is granted by the
court you can still refile it except on two grounds
1. Prescription, that the offense was already extinguished
2. That the accused is placed on double jeopardy
Miss E. You listen to a very nice discussion tonight. Miss E, earlier I was
talking to you that a motion to quash daw on any of the grounds enumerated
in the rules dapat must be filed before the accused enter his plea. It must be
filed therefore before the arraignment of the accused because under the rules
if you did not do so, that will constitute as a waiver on your part to do so. Are
there exceptions when it can be raised at any stage of the proceedings even
after the accused has already entered his plea? You now file not a motion to
quash but a motion to dismiss. Are there instances that you can file and raise
it in any stage of the proceedings even after the accused has already entered
his plea?
Yes.
1. When the accused is placed in double jeopardy
2. When the offense was already extinguished you can raise this any
stage of the proceedings, even the court motu propio, without waiting
for the motion if from the allegation in the information it will show that
the offense was already extinguished the court motu propio can
dismiss it.
3. When the facts charged does not constitute an offense.
4. Lack of jurisdiction over the offense charged.
I repeat as a general rule, you must raise this before the accused enters his
plea, before the arraignment, otherwise it will be considered as a waiver on
your part to do so. There are four exceptions however where it can still be
raised even after arraignment, even during trial.
1. The facts charged does not constitute an offense
2. Lack of Jurisdiction lang over the offense charged

42
3. The crime was already extinguished
4. The accused is placed in double jeopardy
Ok. A motion to quash was filed before my court before arraignment, I found
out that the ground raised therein is talaga justified. So I granted the motion,
quashed the information and dismissed the case. Am I correct in doing so? Ok
I will make it specific. The ground raised on the motion is that the facts
charged in the information do not constitute an offense. I granted the motion,
quashed the information and dismissed the case. Am I correct?
A: No
Q: No. Why did you say so?
Under the Rules, if the ground can be curable by amendment, the court
should not dismiss the information but order the prosecutor to amend the
information. And one of this ground is the first ground that the facts charged
do not constitute an offense. It is only when the court orders the prosecutor
to amend the information but he did not do so, or he amended the
information but the information still suffer from the same defect, that I am
now allowed legally by the rules to dismiss the case.
So meaning to say there are grounds which can be curable by amendment. If
the ground raised is curable by amendment, then the court should not
dismiss the information. Instead the court, my dear students, should order
the prosecutor to amend the information. If the prosecutor will not obey my
order or if he obeyed it, but still it suffers from the same defect, that is the
only time, according to the rules, where the court can now dismiss the case.
Very Clear?
Apart from that what are the other grounds? Theres one pa ground there
which is curable by amendment. Ill give you a clue. Here is an information,
diba dapat ang caption ay People of the Philippines s. Juan Dela Cruz, pero
cguro honest inadvertence? the fiscal placed the name of the private
offended party, like Peter Joven, Im not referring to you (talking to mr. de
ono) vs juan dela cruz. There is a motion to quash filed there. Is it curable by
amendment?
A: Yes, on the ground that it did not conform substantially to the prescribed
form. Because dapat the form must be People of the Philippines. The court
will not dismiss that case but instead will order the prosecution to amend the
information, because along with the facts charged do not constitute an
offense, this also is a ground curable by amendment.
Clear tayo ha. So far there two grounds there.
1. The facts charged do not constitute an offense; and
2. It did not conform to the prescribed form of the prescribed rules.
There, the court should not dismiss the case. Rather, should order the
amendment of the information.
Miss F. Here is a motion to quash filed before my court, indeed noh there is a
ground for granting the same. I granted it but at the same time I also ordered
the release of the accused. Am I correct? Here is one who is detention
prisoner. I granted his motion to quash because I found the ground justified
tapos in the same order dismissing the information. I also made an order for
his release. Am I correct in doing so? I also I repeat I also ordered the release
of the accused. Kasi naman I granted the motion to quash, will it
automatically mean that because the motion is granted, the information is
quashed, the case is dismissed, that it will also entail the release of the
accused?

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The answer is no I am not correct. Are there exceptions? That the dismissal
automatically carries with it the release of the accused.
The rule is no, unless he is admitted to bail even if the information is quashed
it does not mean that the court will order the release of the accused. In fact
nga some of the grounds can be curable by amendment that will be unfair on
the part of the prosecution. But can there be instances when the motion is
granted, the information is quashed, the case is dismissed and that dismissal
carries with it likewise the release of the accused Miss F? Are there
exceptions? That once I will dismiss the case, I will automatically issue an
order releasing the accused.
1. When there is double jeopardy
2. When the offense is extinguished
Only two ha. If I dismissed the case because the offense has already
extinguished or there is already double jeopardy on the part of the accused.
According to the rule, I can automatically order the release of the accused.
We are now on each of this grounds. Miss G diba the first ground says that
the facts charged do not constitute an offense. How do you base it if you are
the court in granting the motion? What is your basis there in doing so? Kasi
the ground, in fact this is curable by amendment noh. How will the court
resolve the ground that the facts charged do not constitute an offense?
A: If the elements of the crime does not appear in the information.
Correct. The rule is we are only limited to those which are alleged in the
information nothing more than that. If it is found that youre correct that
some of the elements of the crime are not alleged in the information, then
automatically there, the facts charged there did not constitute an offense.
Evidence alionde? (dik sure), meaning evidence outside of the information is
not allowed because in ruling this ground we have to look up the information.
So if the information did not aver some of the elements youre correct I have
to grant the motion. But if the information show that all the elements of the
crime are all alleged in the information, then I will deny the motion. Ok? Next.
Here is an accused filing a motion to quash. In his ground he questioned the
jurisdiction of the court over his person pero at the same time he added one
ground that the information did not conform to the rules. The court granted
the motion. Is the court correct?
A: No, because only one ground shall appear on the motion.
So meaning to say, if your ground is anchored on the fact that the court has
no jurisdiction over your person, that is good. But if you alleged other
grounds other than that, in one case the Supreme Court said It is as if you
have already submitted yourself to the jurisdiction of the court. So if you
alleged that the court has no jurisdiction over your person that should be the
only ground in your motion. Like what I said if you allege other ground other
than that in one decision of the Supreme Court, he has already deemed
submitted himself to the jurisdiction of the court. Ok? SO clear tayo. Next.
No question with lack of jurisdiction over the offense charged. You know that
already diba from the start of the semester we talked about the jurisdiction
from the Supreme Court down to the first level court.
This one. An information filed in court was only signed by the prosecutor who
conducted the preliminary investigation and a motion to quash was filed to
that effect. Would I be correct if I will grant the motion? And if indeed I will
grant it upon what ground should I base my order?

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A: The court is correct on the ground that the officer who filed the information
had no authority to do so because all information must be signed and
approved by the Provincial/city prosecutor as the case may be. Remember
our discussion on preliminary investigation, that the preliminary investigation
recommendation should always be submitted by the prosecutor concerned to
the provincial or city prosecutor for review thats why all information filed
before the court must not only bear the signature of the fiscal who conducted
the preliminary investigation, it must also contain the signature of the
approving officer who is the provincial or city or regional state prosecutor, as
the case may be without their signature the motion to quash can be granted
on the ground that the officer who signed the same has no authority to do so.
If you can recall Miss H diba we have private crimes. Diba you were under me
in criminal law two. What are again the private crimes Miss H?
1. Seduction
2. Abduction
3. Acts of Lasciviousness
Under our rules, in private offenses the fiscal cannot just file the information
by himself diba? It must be preceded with a complaint of the private offended
party.
If that is the case Miss H, a private crime was filed before the court but was
not preceded by a complaint of the private offended party upon what ground
can you anchor your motion to quash? Actually review nalang ito because I
gave you that before, you were under me, but you really made me happier of
course tonight. I was able to make a comparison talaga. Upon what ground? A
private offense was filed before the court, it did not and was not
accompanied with a complaint of the private offended party definitely that
can be constituted, but the question is upon what ground would you base
that?
A: Lack of jurisdiction of the court. That is lack of jurisdiction over the offense
charged. That is your ground.
You look at me Miss H and my dear students. We are getting more difficult
tonight.
Here is an information for libel. In the information there was an allegation
that the libelous remarks made by the accused were covered by the so-called
privileged communication. Talaga it was in the information. The accused
through his counsel filed a motion to quash.
First question. What do you think is the ground?
A libel information contained the words, libelous remarks constitute
privileged communication. So the counsel of the accused was happy, he filed
a motion to quash. Upon what ground should he anchor his motion?
A: On the ground that it contains averments which, if true, would constitute a
legal excuse or justification.
In the light of this, when the law says legal excuse or justification it refers to
what in the revised penal code?
A: those has reference to Justifying, Exempting or Absolutory cause under
Book 1 of the Revised Penal Code.
In my example Miss H, would you grant the motion?
A; If the accused raised privileged communication diba I (kempet) to dismiss
it because it is a matter of defense, which should be threshed out on a full

45
blown trial. In fact if it is raised that the communication is privileged it can be
overcome by the prosecution by proving that the accused acted with malice
in fact or there is no reasonable ground for believing that the charge is true.
So in that case therefore you cannot just dismiss that. By the way, because
the manner of determining whether the communication is privileged is a
defense which should be threshed out in a full blown trial.
In fact like what I said, under the rules, the prosecution can overcome the
presumption either by proving that the accused acted with malice in fact or
second that there is no reasonable ground for believing the charge to be true.
But can there be an instance where the court can grant it as an exception to
that rule?
A: Yes, If the communication is absolutely privileged communication because
if it is found out that the communication is absolutely privileged then
definitely no case that can ever be filed like diba sessions in congress are
absolutely privileged communication.
The information contain I dont know baka the fiscal did not read eh, that
when the accused daw committed the offense he was insane, part yan in the
information. Definitely the accused filed a motion to quash, would you grant
it? The information contained the fact that the accused was insane, a motion
to quash was filed. Can it be granted?
A: No
Q: Why? But insanity is an exempting circumstance if that is true that will
constitute as a legal excuse or justification? How come that you said Sir the
information cannot be quashed right away?
A: Because you will still have to determine whether at that time when he
committed the offense he acted with lucid interval. Because insanity depends
on whether he acted on lucid interval or not lucid interval. If you dont see the
word under lucid interval that is a different story but what about the
information says that the accused who committed the crime CICL was only
14, can I quash it right away? The information says the accused CICL was
only 14 years old at the time, stabbed, and killed Jose which caused his
instantaneous death. I quashed the information right away. Would I be
correct?
A: Yes, 14 yrs. Old is an exempting circumstance remember 15 years and
under if the information would really reveal and it is stated that the accused
is 14 years old that is a legal excuse or justification because minority is an
exempting circumstance. Blame it to the fiscal. How come that the fiscal
place the word 14 when he could have just said was a minor, I cannot just
dismiss it because if he said was a minor we have to determine whether he is
15 and under or over 15 under 18.

Did you understand it now? The ground that if the averments are true would
constitute as legal excuse or justification. Dapat the exempting circumstance,
the Justifying circumstance and absolutory causes must be alleged itself in
the information, because if these are not alleged you cannot dismiss it
because it becomes a matter of defense and the accused has the burden na
to prove that in court. But if it is stated talaga in the information, then I will
say that it will constitute legal excuse or justification.

RULE 118: PRE-TRIAL

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After arraignment we have pre-trial conference but there is Supreme Court
Circular where it mandated that before pre-trial, they conduct first a
preliminary conference conducted before the branch Clerk of Court.

During the preliminary conference, usually three things are taken:


1. Proposal of stipulation of facts
2. Marking of exhibits
3. Listing of witnesses

After the preliminary conference, schedule now the pre-trial and if you forgot
proposals of stipulation of facts or listing witnesses during the preliminary
conference or mark some exhibits you can still do that during the pre-trial
conference.

Proposal for stipulation of facts is very important during preliminary


conference because if there are admissions then we dispense with the
presentation of evidence in connection with facts which are actually
admitted.

We actually encourage, in civil cases, to really compel the parties to admit


some stipulations because if these are all admitted in actual application, that
will make the presentation shorter because you will no longer prove in
evidence the facts which were already admitted during the preliminary
conference

We can also actually determine the factual issues and legal issues because
these are the issues which the court have to consider in rendering the
decision and that we are guided by the issues agreed by the parties as basis
of how we will decide the case.

There can be plea bargaining because it might be that the accused, during
arraignment did not enter a plea of not guilty but during the preliminary
conference he wanted to enter into a plea bargaining which is also allowed.

We also take into account admission on due execution and genuineness of


evidence so that during trial the parties will no longer prove that these
evidences are genuine and authentic because there is already an admission.

You usually have to compare, if you have photocopies, you dont want the
original to be submitted to the court but to be marked, you admit, either
parties, whether the photocopy in your possession is a faithful reproduction of
the original so that there will be no more problem in presenting the original
exhibits because the photocopies were already admitted as faithful copies of
the original.

Those are the matters which must be taken during pretrial conference.

Under Speedy Law of 1998, Pretrial conference is mandatory in all criminal


cases.

Very important and mandatory, under Speedy Law of 1998, reiterated in the
Revised Rules of Court if there is there is no pretrial conference then all the
proceedings will be null and void. The same effect when there has been no
arraignment, the proceedings will be null and void in its integrity.

Pursuant to SC Circular No. 12-8-8

First: particularly for pre-trial conference conducted before the first level
court were the submission of a judicial affidavit of the is mandatory where
you have to prove the civil liability of the accused

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Second: when the accused wants that his defense be made with a judicial
affidavit, but as a rule it is not mandatory in criminal cases. The submission
of judicial affidavit, whether in the first or second level courts, is mandatory.

In the second level court, judicial affidavit is not mandatory, it only


mandatory when the witness is presented to prove the civil liability of the
accused or when the accused wants that his defense be made in a judicial
affidavit.

The judicial affidavit must be submitted 5 days before the schedules pre-trial
conference, although the court may allow a late submission of judicial
affidavit but you are to justify the same and once it is found to be justified,
you have to pay a fine of not less than 1000 to not more than 5000 pesos for
the late submission of a judicial affidavit. Then the pre-trial can be
rescheduled
The effect is, when there is no judicial affidavit submitted at least 5 days
before the pre-trial conference, then the witness will not be allowed to be
presented in court because of judicial affidavit serves already as the direct
examination of that particular witness.
The judicial affidavit has to comply with sections 3 and 4 of the SC Circular
12-8-8 so that if the judicial affidavit submitted to the court is defective
because it did not conform with section 3 and 4 of SC Circular 12-8-8, we still
allow the submission of compliant or corrected judicial affidavit. But again,
yop have to justify the same and pay the fine.
Q: Is it required that during the presentation of that witness, the affidavit
must be marked?
A: No. according the according to the author of the judicial affidavit rule, the
judicial affidavit of the witness need not be marked because that is already
the direct examination of the witnesses to be presented. It is different in the
rules of summary procedure that the affidavit of the witnesses be marked.

Unlike in civil cases, where the presence of the plaintiff is mandatory unless
the plaintiff gave a special power of attorney to his counsel or to another
person (because in civil cases, if the plaintiff failed to appear, the case will be
dismissed on the ground of non-suit) because if the plaintiff failed to appear,
the court will allow exparte presentation of the evidences of the plaintiff.

In criminal cases, the presence of the accused and the offended party are not
necessary, as long as the counsel and the prosecutor are present pretrial
conference will still proceed.

In fact, when the prosecutor or the counsel for the accused are absent, the
court may impose sanctions.

Remember the only 3 instances when the presence of the accused is


mandatory during:
1. Arraignment
2. Identification of accused
3. During promulgation of judgment except for promulgation of judgment
for light offense because it can be done in the presence of the counsel

After all these are done, a pretrial order is issued which is very important
because it will serve as the guide of the trial will proceed, either criminal or
civil case.

And in criminal cases, this is now which the law requires that the pretrial
order be signed by the parties including the counsel of the accused and the

48
prosecutor because if it not signed by the victim and the accused, it will not
be applied due to non-sign of the pretrial order.

After pre-trial we are now ready for the trial.

Now, it is important to list witness and mark exhibits during pre-trial because
the rule is witnesses not listed and exhibits not marked will be allowed by the
court during trial.

I dont even allow reservation but it can be allowed but you have to identify
what kind of document you are referring to and it is described in its detail
including the name of the witness, his address and the purpose of his
testimony and the purpose why that particular witness is presented.

EXCEPTIONS:
1. Those to be used in cross-examination or re-cross examination for
impeachment purposes (impeachment of the witness or destroy the
credibility of the witness)
2. Those presented on re-direct examination to explain or supplement the
answers of the witness during the cross examination
3. Those to be utilized for rebuttal or sur-rebuttal witnesses
4. Those not available during pre-trial despite the diligence on the part of
the party offering the same.

We usually allow based on liberal interpretation of number 4, it is very


common.

In fact in civil cases, it is mandated to avail of the modes of discovery but it is


rarely use by lawyer not knowing that these modes of discovery are very
important to shorten the proceeding of the case.

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