Vous êtes sur la page 1sur 73

ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

CRIMINAL PROCEDURE
PRELIMINARY MATTERS CRIMINAL PROCEDURE It is the method prescribed by law for th
e apprehension and prosecution of persons accused of any criminal offense and fo
r their punishment, in case of conviction (Remedial Law IV, Herrera). It is conc
erned with the procedural steps through which a criminal case passes, commencing
with the initial investigation of a crime and concluding with the release of th
e offender. CRIMINAL JURISDICTION It is the authority to hear and try a particul
ar offense and impose the punishment for it (People v. Marinao, 71 SCRA 600, 604
). REQUISITES FOR VALID EXERCISE OF CRIMINAL JURISDICTION: 1. Jurisdiction over
the subject matter is the power to hear and determine cases of the general class
to which the proceedings in question belong (Reyes v. Diaz, 73 Phil 484); by vi
rtue of the imposable penalty or its nature, is one which the court is by law au
thorized to take cognizance of; conferred by law. 2. Jurisdiction over the terri
tory where the offense was committed the offense must have been committed within
the territorial jurisdiction of the court; jurisdiction over the territory; can
not be waived 3. Jurisdiction over the person of the accused QuickTime and a the
person (Uncompressed) decompressor offense must TIFF charged with the are needed
to see this picture. have been brought to its presence for trial, forcibly by w
arrant of arrest or upon his voluntary submission to the court. The question of
jurisdiction may be raised at any stage of the proceedings. The exception to thi
s rule is when there is estoppel and laches on the party who raised the question
of jurisdiction.
JURISDICTION OVER THE SUBJECT MATTER Conferred by law. It cannot be acquired by
the consent of the accused. Objection that the court has no jurisdiction over th
e subject matter may be made at any stage of the proceeding and the right to mak
e such objection is never waived.
JURISDICTION OVER THE PERSON OF THE ACCUSED May be acquired by consent of the ac
cused or by waiver of objections. If the accused fails to make his objection in
time, he will be deemed to have waived it.
JURISDICTION What determines jurisdiction Jurisdiction is determined by the exte
nt of the penalty which the law imposes, on the basis of the facts as recited in
the complaint or information constitutive of the offense charged Jurisdiction i
s not determined by: what may be meted out to the offender after trial the resul
t of the evidence that would be presented during the trial Jurisdiction is retai
ned regardless of: whether the evidence proves a lesser offense than that charge
d in the information, the subsequent happening of events, although of a characte
r which would have prevented jurisdiction from attaching in the first instance.
GENERAL RULE: Jurisdiction of a court to try criminal action is to be determined
by the law at the time of the institution of the action. EXCEPTION: Where the s
tatute expressly provides, or is construed that it is intended to operate to act
ions pending before its enactment, in which case, the court where the criminal a
ction is pending is ousted of jurisdiction and the pending action will have to b
e transferred to the other tribunal which will continue the proceeding.
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Ly
nn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjam
in C. Yan

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Offenses or felonies, whether simple or complexed with other crimes committed by
the public officials and their employees mentioned in Subsection (a) of this se
ction in relation to their office. If the last element, namely, in relation to hi
s office is absent or is not alleged in the information, the crime committed fall
s within the exclusive original jurisdiction of ordinary courts and not the SB.
The offense is committed in relation to the office if the offense is intimately
connected with the office of the offender and perpetuated while he was in the pe
rformance of his official functions, or when the crime cannot exist without the
office, or the office is a constituent element of the crime as defined in the st
atute. Election Offenses Fall outside the jurisdiction of SB even if they are co
mmitted by public officers classified as Grade 27 and higher and in relation to
their offices. It is the RTC that has jurisdiction as provided for in the Omnibu
s Election Code. Court Martial Cases Offenses committed by members of the Armed
Forces and other persons subject to military law are cognizable by court martial
if such offenses are service connected as expressly enumerated in RA 7055. If the
particular offense is not one of those enumerated in the law, the case falls un
der either the regular courts or the SB, as the case may be. Jurisdiction of Fam
ily Courts Republic Act No. 8369 establishing the Family Court granting them exc
lusive original jurisdiction over child and family cases, namely: Criminal cases
where one or more of the accused is below 18 years of age but not less than 9 y
ears of age or where one or more of the victim is a minor at the time of the com
mission of the offense, provided that if the minor is found guilty, the court sh
all promulgate sentence and ascertain any civil liability which the accused may
have incurred. The sentence shall be suspended without need of an application pu
rsuant to the Child and Youth Welfare Code or P.D. 603). Jurisdiction over Comple
x Crimes Jurisdiction is lodged with the trial court having jurisdiction to impo
se the maximum and most serious penalty imposable of an offense forming part of
the complex crime.
ONCE VESTED, JURISDICTION CANNOT BE WITHDRAWN BY: 1. Subsequent valid amendment
of the Information; or 2. Subsequent statutory amendment of the rules of jurisdi
ction, unless the amendatory law provides otherwise. Venue is jurisdictional Thu
s: Action must be instituted and tried in the municipality or territory where th
e offense has been committed or where any one of the essential ingredients there
of took place. GENERAL RULE: The question of jurisdiction may be raised at any s
tage of the proceedings. EXCEPTION: It may not be raised for the first time on a
ppeal, where there has been estoppel and laches on the party who raises the ques
tion. Criminal jurisdiction of MTCs GENERAL RULE: MTC has jurisdiction over all
offenses, the maximum penalty of which as provided by law does not exceed 6 year
s (prision correccional). EXCEPTION: In cases where the only penalty provided by
law is a fine, the amount whereof shall determine the jurisdiction of the court
: MetroTC, MTC, and MCTC: if fine is not more than 4000 pesos. RTC: if fine exce
eds 4000 pesos, including offenses committed by public officers and employees in
relation to their office, where the amount of the fine does not exceed 6000 pes
os. (SC Court Circular No. 09-94). Accessory penalties and civil liabilities: no
longer determinative of jurisdiction.
QuickTime and a TIFF (Uncompressed) decompressor No jurisdiction: are needed to s
ee this picture.cases which by over those provision of special law are made tria
ble by the RTC or the Sandiganbayan even if the maximum penalty prescribed by su
ch special law is less than 6 years. Included in such exceptions are election of
fenses, libel or written defamation, and violation of Sec. 39 of the Dangerous D
rugs Act of 1972 (RA 6425).
Criminal Jurisdiction of the Sandiganbayan
Page 171 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Effect of institution of the Criminal Action: The institution of the criminal ac
tion interrupts the running of the period of prescription of the offense charged
UNLESS: otherwise provided in special laws. Act No. 3323 governs the prescripti
ve periods of violations of special laws, or offenses other than those penalized
under the Revised Penal Code. NOTE: With respect to offenses penalized by speci
al laws, the filing of the complaint or information in court is the one that int
errupts the prescriptive period and not the filing of the complaint in the prope
r office for purposes of conducting a preliminary investigation (Zaldivar v. Rey
es, 211 SCRA 277). The filing of a complaint for purposes of preliminary investi
gation starts the prosecution process. REQUISITES OF A COMPLAINT OR INFORMATION
1. in writing 2. in the name of the People of the Philippines 3. Against all per
sons who appear to be responsible for the offense involved. Who is the real offe
nded party? The People of the Philippines, but since the crime is also an outrag
e against the offended party, he is entitled to intervene in its prosecution in
cases where the civil action is impliedly instituted therein. Section 2. The com
plaint or information FORM: 1. In writing; 2. In the name of the People of the P
hilippines; and 3. Against all persons who appear to be responsible for the offe
nse involved. Section 3. Complaint defined COMPLAINT It is a sworn written state
ment charging a person with an offense, subscribed by the offended party, any pe
ace officer, or other public officer charged with the enforcement of the law vio
lated. The complaint as defined under Section 3 is different from the complaint
filed with the Prosecutors Office. It refers to the one filed in court for the
Page 172 of 289
Jurisdiction over Crimes Punishable by Destierro Where the imposable penalty is
destierro, the case falls within the exclusive jurisdiction of the Municipal Tri
al Court, considering that in the hierarchy of penalties under Article 71 of the
Revised Penal Code, destierro follows arresto mayor which involves imprisonment
(People v. Eduarte, 182 SCRA). Principle of Adherence of Jurisdiction Once juri
sdiction is vested in the court, it is retained up to the end of litigation (Del
a Cruz v. Moya, 160 SCRA 838).
RULE 110 PROSECUTION OF OFFENSES CRIMINAL ACTION It is an action by which the St
ate prosecutes a person for an act or omission punishable by law. Section 1. Ins
titution of Criminal Actions For offenses which require preliminary investigatio
n: By filing the complaint with the proper officer for preliminary investigation
. Refers to a complaint-affidavit, and is different from the complaint defined i
n Section 3 of Rule 110. Preliminary investigation is required for offenses wher
e the penalty prescribed by law is at least 4 years, 2 months and 1 day of impri
sonment without regard to the fine (Rule 112, Sec. 1, Par. 2). For all other off
enses, or for offenses which are penalized by law with lower than at least 4 yea
rs, 2 months and 1 day without regard to the fine: Instituted directly with the
MTC and MCTC, or the complaint is filed with the Office of the Prosecutor. In Ma
nila and other charteredand a QuickTime cities, the complaint decompressor shall
be filed withTIFF (Uncompressed) thisthe Prosecutor unless theneeded to seeof pi
cture. are Office otherwise provided in their charters. NOTE: A complaint for of
fenses cognizable by the RTC is NOT filed directly with the RTC either for purpo
ses of preliminary investigation or for commencement of the criminal prosecution
. DOES NOT APPLY: To offenses subject to summary procedure which are

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


commencement of a criminal prosecution for violation of a crime usually cognizab
le by municipal trial courts as well as to a complaint filed by an offended part
y in private crimes or those which cannot be prosecuted de officio. REQUISITES O
F A COMPLAINT: 1. It must be in writing and under oath; 2. It must be in the nam
e of the People of the Philippines; 3. It must charge a person with an offense;
and 4. It must be subscribed by the offended party, by any peace officer or publ
ic officer charged with the enforcement of the law violated. The COMPLAINT FILED
WITH THE PROSECUTORS OFFICE, from which the latter may initiate a preliminary in
vestigation, refers to: 1. any written complaint 2. filed by an offended party o
r not 3. not necessarily under oath, except in 2 instances: complaint for commis
sion of an offense which cannot be prosecuted de officio or is private in nature
where the law requires that it is to be started by a complaint sworn to by the
offended party, or when it pertains to those which need to be enforced by specif
ied public officers. Under the Rule on Summary Procedure: A complaint may be dir
ectly filed in the MTC, provided that in Metro Manila and in chartered cities, t
he criminal action may only be commenced by the filing of information, which mea
ns, only by the prosecutor, except when the offense cannot be prosecuted de offi
cio as in private crimes. PERSONS WHO CAN FILE A COMPLAINT: 1. Offended party; 2
. Any peace officer; 3. Other public officer charged with enforcement of the law
violated. Section 4. Information QuickTime and a defined
TIFF (Uncompressed) decompressor are needed to see this picture.
4. It must be filed in court. PERSONS AUTHORIZED TO FILE INFORMATION 1. City or
provincial prosecutor and their assistants 2. Duly appointed special prosecutors
. AN
Information and Complaint distinguished COMPLAINT INFORMATION Subscribed by the
Subscribed by the offended party, any prosecutor. It does not peace officer or o
ther have to be subscribed by officer charged with the the offended party or any
enforcement of the law peace officer or other violated. peace officer charged w
ith the enforcement of the law. Filed either in the MTC or Filed in court. with
the provincial/city prosecutors office NOTE: PROSECUTION IN THE RTC IS ALWAYS COM
MENCED BY INFORMATION, EXCEPT: 1. In certain crimes against chastity (concubinag
e, adultery, seduction, abduction, acts of lasciviousness) ; and 2. Defamations
imputing any of the aforesaid offenses wherein a sworn written complaint is requ
ired in accordance with Section 5 of this Rule. In case of variance between the
complaint filed by the offended party and the information in crimes against chas
tity, the complaint controls (People v. Oso, 62 Phil 271). People v. Santiago G.
R. No. 137281 (2001) A defectively crafted information, such as that alleging mu
ltiple offenses in a single complaint or information transgresses Rule 110, 13.
A. However, failure to make a timely objection to such a defect is deemed to be
a waiver of the said objection. Section 5. Who Must Prosecute Criminal Actions F
ull Discretion and Control of the Prosecutor All criminal actions commenced by c
omplaint of information shall be prosecuted under the direction and control of t
he prosecutor. The institution of a criminal action depends upon the sound discr
etion of the prosecutor. But once the case is already filed in court, the same c
an no longer be withdrawn or dismissed without the tribunals
Page 173 of 289
the
INFORMATION It is an accusation in writing charging a person with an offense, su
bscribed by the prosecutor and filed with the court. REQUISITES OF AN INFORMATIO
N: 1. It must be in writing; 2. It must charge a person with an offense; 3. It m
ust be subscribed by the prosecutor; and

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


approval. Should the prosecutor find it proper to conduct a reinvestigation of t
he case at such stage, the permission of the Court must be secured (Crespo v. Mo
gul). May a criminal prosecution be restrained by injunction? GENERAL RULE: No R
EASON: Public interest requires that criminal acts be immediately investigated a
nd prosecuted for the protection of society. EXCEPTIONS WHERE CRIMINAL PROSECUTI
ON MAY BE RESTRAINED BY INJUNCTION 1. where injunction is justified by the neces
sity to afford protection to the constitutional rights of the accused 2. when ne
cessary for the orderly administration of justice or to avoid oppression or mult
iplicity of actions 3. when there is a prejudicial question which is sub judice
4. when the acts of the officer are without or in excess of authority 5. where t
he prosecution is under an invalid law, ordinance or regulation 6. when double j
eopardy is clearly apparent 7. where the court has no jurisdiction over the offe
nse 8. where it is a case of persecution rather than prosecution 9. where the ch
arges are manifestly false and motivated by the lust for vengeance 10.when there
is clearly no prima facie case against the accused and the motion to quash on t
hat ground has been denied 11.preliminary injunction has been issued by the Supr
eme Court to prevent the threatened unlawful arrest of petitioners. Prior to the
filing of the information in court, the prosecutor has full control of the case
. He decides who should be charged in court and who should be excluded from the
information.
TIFF decompressor DECISION OF THE(Uncompressed) this picture. SUBJECT TO PROSECU
TOR are needed to see REVIEW BY: the Secretary of Justice who exercises supervis
ion and control over his actions and who may sustain, modify or set aside his re
solution on the matter in appropriate cases, by the courts when he acts with gra
ve abuse of discretion amounting to lack of jurisdiction. QuickTime and a
Private Prosecutor Participation: May a public prosecutor allow a private prosec
utor to actively handle the conduct of the trial? Yes, where the civil action ar
ising from the crime is deemed instituted in the criminal action. Public Prosecu
tor must be present during the proceedings and must take over the conduct of the
trial from the private prosecutor at any time the cause of the prosecution may
be adversely affected. Thus, where the prosecutor has turned over the active con
duct of the trial to the private prosecutor who presented testimonial evidence e
ven when the public prosecutor was absent during the trial, the evidence present
ed could not be considered valid evidence of the People. However: this rule appl
ies only to courts which are provided by law with prosecutors, and not to munici
pal courts which have no trial prosecutors, in which case the evidence presented
by the private prosecutor can be considered as evidence for the People. GENERAL
RULE: In appeals, the Sol. Gen. has control. He may abandon or discontinue the
prosecution of the case in the exercise of his sound discretion and may even rec
ommend the acquittal of an accused when he believes that the evidence does not w
arrant his conviction. EXCEPTION: provided for in RA 8249 which states in part t
hat in all cases elevated to the Sandiganbayan and from the SB to the SC, the Off
ice of the Ombudsman, through its special prosecutor, shall represent the People
of the Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A
, issued in 1986. When it is said that the requirement of Art. 344 of RPC is juri
sdictional, what is meant is that it is the complaint that starts the prosecutor
y proceeding. It is not the complaint which confers jurisdiction on the court to
try the case. People v. Yparraguire, G. R. No. 124391 (2000) Even when a compla
int is defective for being signed and filed by the chief of police and not by th
e complainant, the court may still acquire jurisdiction over the case. The compl
aint required in Art. 344 of the RPC is but a condition precedent to the exercis
e by the proper authorities of the power to prosecute the guilty parties. The co
mplaint simply starts the
Page 174 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


prosecutory proceeding but does not confer jurisdiction in the court to try the
case. Art. 344 is not determinative of the jurisdiction of courts over private o
ffenses because the same is governed by the Judiciary Law and not the RPC. Once
the complaint is filed, does death of the complainant in a crime of adultery ext
inguish the criminal liability of the accused? No. The participation of the offe
nded party in private crimes is essential not for the maintenance of the crimina
l action but solely for the initiation thereof. Any pardon given by the complain
ant or her death after the filing of the complaint would not deprive the court o
f the jurisdiction to try the case. REMEDIES OF THE OFFENDED PARTY IF THE PROSEC
UTOR REFUSES TO FILE AN INFORMATION: 1. File an action for mandamus, in case of
grave abuse of discretion 2. Lodge a new complaint before; the court having juri
sdiction over the offense; 3. Take up the matter with the Secretary of Justice i
n accordance with the Administrative Code; 4. Institute administrative charges a
gainst erring prosecutor; and 5. File criminal action against the prosecutor wit
h the corresponding civil action for damages. PROSECUTION OF PRIVATE CRIMES Who
may prosecute? 1. Concubinage and adultery only by the offended spouse who shoul
d have the status, capacity and legal representation at the time of filing of th
e complaint regardless of age; Both guilty parties must be included in the compl
aint; The offended party did not consent to the offense nor pardoned the offende
rs. 2. Seduction, Abduction and Acts of Lasciviousness prosecuted exclusively an
d successively by the following persons in this order: a. By the offended woman;
a QuickTime and decompressor b. By the TIFF (Uncompressed)grandparents or legal/
parents,see this picture. are needed to judicial guardians in that successive or
der, if the offended party is a minor or of age but suffers from physical or men
tal disability; c. By the State pursuant to the doctrine of parens patriae, when
the offended party dies or becomes incapacitated before she could file the comp
laint and she has no known parents, grandparents or guardians. The pardon refers
to pardon BEFORE filing of the criminal complaint in court. Pardon effected aft
er the filing of the complaint in court does not prohibit the continuance of the
prosecution of the offense EXCEPT in case of marriage between the offender and
the offended party. Pardon and Consent PARDON Refers to past acts of adultery. I
n order to absolve the accused from liability must be extended to both offenders
. 3. A defamation imputing to a person any of the foregoing crimes of concubinag
e, adultery, seduction, abduction, rape or acts of lasciviousness can be prosecu
ted only by the party or parties defamed (Article 360, last paragraph, Revised P
enal Code). NOTE: If the offended party is of legal age and does not suffer from
physical or mental disability, she alone can file the complaint to the exclusio
n of all. Who can give pardon? 1. Concubinage and adultery only the offended spo
use not otherwise incapacitated, can validly extend the pardon or consent contem
plated therein. 2. Seduction, abduction and acts of lasciviousness a. the offend
ed minor, if with sufficient discretion can validly pardon the accused by hersel
f if she has no parents or where the accused is her own father and her mother is
dead b. the parents, grandparents or guardian of the offended minor, in that or
der, cannot extend a valid pardon in said crimes without the conformity of the o
ffended party, even if the latter is a minor; c. if the offended woman is of age
and not otherwise incapacitated, only she can extend a valid pardon.
CONSENT Refers to future acts
In order to absolve the accused from liability, it is sufficient even if granted
only to the offending spouse.
The SUBSEQUENT MARRIAGE between the party and the accused extinguishes the crimi
nal liability of the latter, together with that of the co-principals, accomplice
s and accessories, Except: a. Where the marriage was invalid or contracted in ba
d faith in order to escape criminal liability.
Page 175 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


b. In private libel or the libelous imputation of the commission of the crimes of
concubinage, adultery, seduction, abduction, rape or acts of lasciviousness and
in slander by deed; c. In multiple rape, insofar as the other accused in the oth
er acts of rape respectively committed by them are concerned. NOTE: The acquitta
l or death of one of the accused in the crime of adultery does not bar the prose
cution of the other accused (People v. Topio, 35 Phil 901). However, the death of
the offended spouse before the filing of the complaint for adultery bars furthe
r prosecution, BUT if the offended spouse died after the filing of the correspon
ding complaint, his death will not prevent the proceeding from continuing to its
ultimate conclusion. Effect of Desistance of Complainant It does not bar the Pe
ople from prosecuting the criminal action. BUT: it does operate as a waiver of t
he right to pursue civil indemnity. An offended party in a criminal case has suf
ficient personality to file a special civil action for certiorari, in proper cas
es, even without the imprimatur of the State. In so doing, the complainant shoul
d not bring the action in the name of the People of the Philippines. The action
may be prosecuted in the name of the said complainant (Perez v. Hagonoy Rural Ba
nk, Inc. 327 SCRA 588). Section 6. Sufficiency of complaint or information A COM
PLAINT IS SUFFICIENT IF IT STATES: 1. the name of the accused 2. the designation
of the offense by a statute 3. the acts or omission complained of as constituti
ng the offense 4. the name of the offended party 5. the approximate time of the
commission of the offense 6. the place where the offense was committed. People v
. Dela Cruz, G.R. No. and a QuickTime 137967 (2001) TIFF (Uncompressed) decompres
sor The non-inclusion of to see this picture.the names of the are needed some of
eyewitnesses in the information does not preclude the prosecutor from presentin
g them during trial. PURPOSE: to safeguard the constitutional right of an accuse
d to be informed of the nature and cause of the accusation against him so that h
e can duly prepare his defense. NOTE: Substantial defect in the information cann
ot be cured by evidence that would jeopardize the accuseds right to be informed o
f the true nature of the offense he is charged with. Section 7. Name of the accu
sed NAME OF THE ACCUSED 1. If name is known: the name and surname of the accused
or any appellation or nickname by which he has been or is known. 2. If name can
not be ascertained: a fictitious name with a statement that his true name is unk
nown. If true name thereafter disclosed: such true name shall be inserted in the
complaint or information and record. 3. While one or more persons, along with s
pecified and named accused, may be sued as John Does, an information against all a
ccused described as John Does is void, and an arrest warrant against them is also
void. NOTE: An error in the name of the accused is not reversible as long as his
identity is sufficiently established. This defect is curable at any stage of th
e proceedings as insertion of the real name of the accused is merely a matter of
form (People v. Padica, 221 SCRA 362). Section 8. Designation of the offense TH
E INFORMATION OR COMPLAINT MUST STATE OR DESIGNATE THE FOLLOWING WHENEVER POSSIB
LE: 1. The designation of the offense given by the statute. If there is no desig
nation of the offense, reference shall be made to the section of the statute pun
ishing it. 2. The statement of the acts or omissions constituting the offense, i
n ordinary, concise and particular words. 3. The specific qualifying and aggrava
ting circumstances must be stated in ordinary and concise language. The qualifyi
ng and aggravating circumstances cannot be appreciated even if proved unless all
eged in the information (People v. Perreras, 362 SCRA 202). In case of allegatio
n of aggravating circumstance of HABITUAL DELINQUENCY, it should not be generall
y averred. The information must specify:
Page 176 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


a. the commission of the crimes; b. the last conviction or release; c. the other
previous conviction or release of the accused. In rape cases, the concurrence o
f the minority of the victim and her relationship with the offender is a special
qualifying circumstance which should be both alleged (People v. Cantos, 305 SCR
A 786) and proved (People v. Manggasin) with certainty in order to warrant the i
mposition of the [maximum] penalty. DESIGNATION OF THE OFFENSE 1. In case of a c
onflict between the designation of the crime and the recital of facts constituti
ng the offense, the latter prevails over the former. 2. The real question is not
, did he commit a crime given in the law some technical and specific name, but d
id he perform the acts alleged in the body of the information. If he did, it is
of no consequence to him, either as a matter of procedure or of substantive righ
t, how the law denominates the crime. It is not the designation of the offense i
n the complaint or information that is controlling (People v. Samillano, 56 SCRA
573); the facts alleged therein and not its title determine the nature of the c
rime (People v. Magdowa, 73 Phil 512). The accused may be convicted of a crime m
ore serious than that named in the title or preliminary part if such crime is co
vered by the facts alleged in the body of the information and its commission is
established by evidence (Buhat v. Court of Appeals, 265 SCRA 701). An accused co
uld not be convicted under one act when he is charged with a violation of anothe
r if the change from one statue to the other involves: a. a change in the theory
of the trial; b. requires of the defendant a different defense; or c. surprise
the accused in any way. (U.S. v. Panlilio, 28 Phil 603).
TIFF (Uncompressed) decompressor Section 9. Cause of neededaccusation the to see
this picture. are QuickTime and a
IMPORTANT: The new rule requires that the qualifying and aggravating circumstanc
es be alleged in the information. PURPOSE: 1. To enable the court to pronounce a
proper judgment; 2. To furnish the accused with such a description of the charg
e as to enable him to make a defense; 3. As a protection against further prosecu
tion for the same cause. ( U.S. v. Karelsen). RULE ON NEGATIVE AVERMENTS: 1. Whe
re the law alleged to have been violated: prohibits generally acts therein defin
ed is intended to apply to all persons indiscriminately, but prescribes certain
limitations or exceptions from its violation the information is sufficient if it
alleges facts which the offender did as constituting a violation of law, withou
t explicitly negating the exception, as the exception is a matter of defense whi
ch the accused has to prove. 2. Where the law alleged to have been violated appli
es only to specific classes of persons and special conditions the exemptions fro
m its violation are so incorporated in the language defining the crime that the
ingredients of the offense cannot be accurately and clearly set forth if the exe
mption is omitted, the information must show that the accused does not fall with
in the exemptions. NOTE: When an exception or negative allegation is not an ingr
edient of the offense and is a matter of defense, it need not be alleged (U.S. v
. Chan Toco, 12 Phil 262). COMPLEX CRIMES Where what is alleged in the informati
on is a complex crime and the evidence fails to support the charge as to one of
the component offenses, the defendant can be convicted of the offense proven. Se
ction 10. Place of commission of the offense GENERAL RULE: A complaint or inform
ation is sufficient if it appears from the allegation that the offense was commi
tted or some of its essential ingredients occurred at some place, within the ter
ritorial jurisdiction of the court.
Page 177 of 289
If one or more elements of the offense have not been alleged in the information,
the accused cannot be convicted of the offense charged, even if the missing ele
ments have been proved during the trial. Even the accuseds entering a plea of gui
lty to such defective information will not cure the defect, nor justify his conv
iction of the offense charged.

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


EXCEPTION: When the place of commission is an essential element of the offense,
the place of commission must be alleged with particularity e.g. trespass to dwel
ling, destructive arson, robbery in an inhabited house. PURPOSE: To show territo
rial jurisdiction of the court. May conviction be had even if it appears that th
e crime was committed not at the place alleged in the information? Yes, provided
the place of actual commission was within the jurisdiction of the court. UNLESS
: the particular place of commission is an essential element of the offense char
ged. Section 11. Date of commission of the offense What is the determinative fac
tor in the resolution of the question involving a variance between the allegatio
n and proof in respect of the date of the crime? The element of surprise on the
part of the accused and his inability to defend himself properly People v. Elped
es, G.R. No. 137106-07 (2001) The remedy against an indictment that fails to all
ege the time of commission of the offense with sufficient definiteness is a moti
on for bill of particulars (Rule 116 10). The failure to move or specification o
r the quashal of the information on any of the grounds provided for in the Rules
deprives the accused of the right to object to evidence which could be lawfully
introduced and admitted under an information of more or less general terms but
which sufficiently charges the accused with a definite crime. Besides, the exact
date of the commission of the crime is not an essential element of the crime. P
eople v. Baniguid, GR No. 137714 (2000) Death penalty is imposed for the crime o
f rape if the victim is under 18 years of age and the offender is a parent of the
victim. For this purpose, the special qualifying circumstances of the victims min
ority and QuickTime and a her relationship with the offender must be alleged TIFF
(Uncompressed) decompressor are needed to see this picture. and proved. The inf
ormation must state the exact age of the victim at the time of the commission of
the crime. People v. De Villa, G.R. No. 124639 (2001) Under the amendatory prov
isions of RA 7659 11, the attendance of facts that would mandate the imposition
of the single indivisible penalty of death are in the nature of qualifying circu
mstances which should be alleged in the information and proved at the trial. The
New Rules of Criminal Procedure which took effect on Dec. 1, 2000, now specific
ally require that both qualifying and aggravating circumstances to be alleged in
the information. Section 12. Name of the offended party The rules require the c
omplaint or information to state the name and surname of the persons against who
m or against whose property the offense was committed or any appellation or nick
name by which such person has been or is known and if there is no better way of
identifying him, he must be described under a fictitious name (Sayson v. People,
166 SCRA 693). In crimes against property, if the name of the offended party is
unknown, the property must be described with such particularity as to properly
identify the particular offense charged. To constitute larceny, robbery, embezzl
ement, obtaining money by false pretenses, malicious mischief, etc., the propert
y obtained must be that of another person, and indictment for such offense must
name the owner and a variance in this respect between the indictment and the pro
of will be fatal. Section 13. Duplicity of the Offense The information is defect
ive when it charges two or more DISTINCT or DIFFERENT offenses. A complaint or i
nformation must charge only one offense, except when the law prescribes a single
punishment for various offenses. PURPOSE: To give the defendant the necessary k
nowledge of the charge to enable him to prove his defense. The State should not
heap upon the defendant two or more charges which might confuse him in his defen
se. WAIVER When the accused fails, BEFORE ARRAIGNMENT, to move for the quashal o
f the information which charges 2 or more offenses, he thereby waives the object
ion and may be found guilty of as many offenses as those charged and proved duri
ng the trial. Where the law with respect to an offense may be committed in any o
f the different modes provided by law, the indictment in the information is suff
icient if the offense is alleged to have been committed in one, two or more mode
s specified therein. The various ways of committing the offense should be consid
ered
Page 178 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


as a description of only one offense and the information cannot be dismissed on
the ground of multifariousness. EXCEPTIONS TO THE RULE ON DUPLICITY 1. continuou
s crimes 2. complex crimes 3. special complex crimes 4. crimes susceptible of be
ing committed in various modes 5. crimes of which another offense is an ingredie
nt REQUISITES OF CONTINUOUS CRIMES: 1. Plurality of acts performed separately du
ring a period of time; 2. Unity of penal provision infringed upon or violated; 3
. Unity of criminal intent which means that two or more violations of the same p
enal provision are united on one and the same intent leading to the perpetration
of the same criminal purpose or claim (People v. Ledesma). Section 14. Amendmen
t or Substitution KINDS OF AMENDMENT OR SUBSTITUTION a. BEFORE THE ACCUSED ENTER
S HIS PLEA, THE PROSECUTOR MAY: upgrade the offense allege qualifying and aggrav
ating circumstances or change the offense charged WITHOUT LEAVE OF COURT, provid
ed there is evidence thereon which has been presented during the preliminary inv
estigation. HOWEVER, PROSECUTOR CANNOT: downgrade the offense charged exclude fr
om the information a co-accused without filing a motion to that effect, with not
ice to the offended party, and subject to the approval of the court. The court s
hall state the reasons in resolving the motion and copies thereof furnished all
parties, QuickTime and a TIFF (Uncompressed) decompressor especiallyare needed to
see this picture. the offended party. b. AFTER THE PLEAa. If it covers only for
mal amendment- leave of court is obtained and such amendment is not prejudicial
to the rights of the accused. b. But when a fact supervenes which changes the na
ture of the crime charged in the information or upgrades it to a higher crime, i
n which case, there is a need for another arraignment of the accused under the a
mended information. Technically, paragraph 2 of Section 14 does not refer to ame
ndment, but to substitution of the complaint or information by a new one. If the
substitution is made before the accused enters his plea, the question of double
jeopardy does not arise. If the filing of new information is done after the ple
a and before judgment on the ground that there has been a mistake in charging th
e proper offense, the filing thereof may only be allowed if it will not place th
e accused twice in jeopardy. Test as to whether a defendant is prejudiced by an
amendment: whether a defense under the information as it originally stood would
be available after the amendment is made, and whether any evidence defendant mig
ht have would be equally applicable to the information in the new form as in the
other. GENERAL RULE: After arraignment, the prosecutor may no longer amend the
information which changes the nature of the crime, as it will prejudice the subs
tantial rights of the accused. EXCEPTION: When a fact supervenes which changes t
he nature of the crime charged in the information or upgrades it to a higher cri
me, the prosecutor, with leave of court, may amend the information to allege suc
h supervening fact and upgrade the crime charged to the higher crime brought abo
ut by such supervening fact. HOWEVER: if the supervening event which changes the
nature of the crime to a more serious one occurred after the accused has been c
onvicted, which makes the amendment of the information no longer the remedy of t
he prosecution, the prosecution can and should charge the accused for such more
serious crime, without placing the accused in double jeopardy, there being no id
entity of the offense charged in the first information and in the second one. Se
ction 14 applied only to original case and not to appealed case. Gabionza v. CA,
G.R. No. 140311 (2001) When amendments to informations may be allowed: a. it do
es not deprive the accused of the right to invoke prescription
Page 179 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


b. it does not deprive the accused of the right to invoke prescription c. it doe
s not affect or alter the nature of the offense originally charged d. it does no
t involve a change in the basic theory of the prosecution so as to require the a
ccused to undergo any material charge or modification in his defense e. it does
not expose the accused to a charge which would call for a higher penalty f. it d
oes not cause surprise or deprive the accused of an opportunity to meet the new
averment. A defendant may file a counterclaim for interpleader against the plain
tiff and a third party also claiming the subject matter of the suit.. LIMITATION
TO THE RULE ON SUBSTITUTION: a. No judgment has yet been rendered; b. The accus
ed cannot be convicted of the offense charged or of any other offense necessaril
y included therein; c. The accused would not be placed in double jeopardy. Amend
ment vs. Substitution AMENDMENT SUBSTITUTION May involve either formal Involves
substantial or substantial changes. change from original charge. Amendment befor
e the Substitution of pleas has been entered information must be with can be eff
ected without leave of court as the leave of court. original information has to
be dismissed. Amendment is only as to Another preliminary form, there is no need
for investigation is entailed another preliminary and the accused has to invest
igation and the plead anew to the new retaking of the plea of the information. a
ccused. An amended information Requires or presupposes refers to the same that t
he new information offense charged in the involves a different original informat
ion or to offense which does not QuickTime and a an offense which TIFF (Uncompres
sed) decompressor is not includes or are needed necessarily includes or is to se
e this picture. necessarily included in necessarily included in the original cha
rge, the original charge, hence the accused hence substantial cannot claim doubl
e amendments to the jeopardy. information after the plea has been taken cannot b
e made over the objection of the accused, for if the original would be withdrawn
, the accused could invoke double jeopardy. VARIANCE BETWEEN INDICTMENT AND PROO
F: 1. When the offense proved is less serious than and is necessarily included i
n the offense charged, in which case, the defendant shall be convicted of the of
fense proved. 2. When the offense proves is more serious than and includes the o
ffense charged, in which case the defendant shall be convicted of the offense ch
arged; 3. When the offense proved is neither included in, nor does it include, t
he offense charged and is different therefrom, in which case the court should di
smiss the action and order the filing of new information charging the proper off
ense. (Substitution of information applies in this case). Section15. Place where
action is to be instituted VENUE IN CRIMINAL CASE IS JURISDICTIONAL, BEING AN E
SSENTIAL ELEMENT OF JURISDICTION. PURPOSE: Not to compel the defendant to move t
o and appear in a different court from that of the territory where the crime was
committed as it would cause him great inconvenience in looking for his witnesse
s and other evidence in another place. GENERAL RULE: Penal laws are territorial;
hence Philippine courts have no jurisdiction over crimes committed outside the
Philippines. EXCEPTIONS: 1. Those provided in Article 2 of the Revised Penal Cod
e. Those who commit any of the crimes contemplated therein can be tried by Phili
ppine courts. 2. Where an offense is committed on a railroad train, in an aircra
ft or other public or private vehicle in the course of its trip, the criminal ac
tion shall be instituted and tried in the court of any municipality or territory
where such train, aircraft or other vehicle passed during its trip, including t
he place of its departure and arrival. 3. Where an offense is committed on board
a vessel in the course of its voyage, the criminal action shall be instituted a
nd tried in the court of the first port of entry or of any municipality or
Page 180 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


territory where the vessel passed during such voyage, subject to the generally a
ccepted principles of international law. Piracy has no territorial limits as it
is a crime against all mankind. Libel the action may be instituted at the electi
on of the offended party in the province or city: a. where the libelous article
is printed or first published; b. If one of the offended parties is a private in
dividual, where said private individual actually resides at the time of the comm
ission of the offense; c. If the offended party is a public official, where the
latter holds office at the time of the commission of the offense. In exceptional
circumstances- to ensure a fair trial and impartial inquiry. The Supreme Court
shall have the power to order a change of venue or place of trial to avoid the m
iscarriage of justice (Sec. 5[4], Article VIII, 1987 Constitution), B.P. 22 case
s- criminal action shall be filed in the place where the check was dishonored. H
OWEVER: Once the offended party has filed a separate civil action arising from t
he crime, he may not withdraw such civil case in order to intervene in the crimi
nal prosecution. He loses the right to intervene. He no longer has any standing
in the criminal case, except to be a prosecution witness. Where a criminal actio
n has been provisionally dismissed upon motion of the prosecutor, can the case b
e revived upon motion of the offended party? No, because the offended party or c
omplaining witness cannot act for the prosecutor.
4. 5.
6.
RULE 111 PROSECUTION OF CIVIL ACTION Section 1. Institution of criminal and civi
l actions GENERAL RULE: The institution or filing of the criminal action include
s the institution therein of the civil action for recovery of civil liability ar
ising from the offense charged. EXCEPTIONS: Where institution of criminal liabil
ity does not include civil liability the offended party WAIVES the civil action;
he RESERVES his right to institute the civil action separately; or he INSTITUTE
S THE CIVIL ACTION PRIOR TO THE CRIMINAL ACTION. The employer may not be held ci
villy liable for quasidelict in the criminal action as ruled in Maniago v. Court
of Appeals since quasi-delict is not deemed instituted with the criminal. If at
all, the only civil liability of the employer in the criminal action would be h
is subsidiary liability under the Revised Penal Code. WHEN RESERVATION SHALL BE
MADE: a. Before the prosecution starts to present its evidence; and b. Under cir
cumstances affording the offended party a reasonable opportunity to make such re
servation. INSTANCES WHERE NO RESERVATION SHALL BE ALLOWED 1. Criminal action fo
r violation of BP 22 unless a separate civil action has been filed before the in
stitution of the criminal action, no such civil action can be instituted after t
he criminal action has been filed as the same has been included therein.
7.
VENUE IS JURISDICTIONAL The court has no jurisdiction to try an offense committe
d outside its territorial jurisdiction. It cannot be waived or changed by the ag
reement of the parties or by consent of the defendant. Section 16. Intervention
of the offended party in criminal action GENERAL RULE: Offended party has the ri
ght to intervene by counsel in the prosecution of the criminal action where the
civil action for recovery of civil liability is instituted in the criminal actio
n pursuant to Rule 111. EXCEPTIONS: 1. Where from the nature of the crime and th
e law defining and punishing it, no civil liability arises in favor of the offen
ded party; 2. Where the offended party has waived the right QuickTime and a TIFF
(Uncompressed) decompressor to civil indemnity; orto see this picture. are neede
d 3. Where the offended party has already instituted an action. Where the offend
ed party withdrew a reservation to file a separate civil action, the private pro
secutor may still intervene in the prosecution of the criminal case, by conducti
ng the examination of witnesses under the control of the prosecutor.

Page 181 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


2. A claim arising from an offense which is cognizable by the Sandiganbayan a ci
vil action filed prior to the criminal action has to be transferred to the subse
quently filed criminal action for joint hearing (Sec. 4 of PD1606 as amended by
RA 8249) 3. Tax cases (Sec. 7, par. b, no.1, RA 9282) When the reservation of th
e right to institute the separate civil actions shall be made: before the prosec
ution starts to present its evidence and under circumstances affording the offen
ded party a reasonable opportunity to make such a reservation. The rule requirin
g reservation to file a separate civil action does not apply to civil actions wh
ich can be filed and prosecuted independently of the criminal action, namely, th
ose provided in Arts. 32, 33, 34 and 2176 of the Civil Code. Although the crimin
al and civil actions may be joined in the criminal case, they are distinct from
each other. The plaintiffs in the two actions are different. THUS: even if the a
ccused started serving his sentence within the 15-day period from the promulgati
on of the judgment of conviction by the lower court, thereby making the judgment
against him final, the complainant may, within the 15-day reglementary period,
still ask that the civil liability be fixed by the court, if the judgment does n
ot adjudicate any civil liability, as the judgment regarding civil liability has
not become final and the court still has jurisdiction to adjudge the civil liab
ility. NOTE: Only civil liability arising from crime charged (cause of action ar
ising from delict) as a felony is deemed instituted. Civil liability arising fro
m other sources of obligations (law, quasi-contract and quasidelict) are no long
er deemed instituted like those under Article 32, 33, 34 and 2176 of the Civil C
ode which can be prosecuted even without reservation. RULES ON FILING FEES GENER
AL RULE: No QuickTimefees are required for filing and a TIFF (Uncompressed) decom
pressor amounts of actual damages. this picture. are needed to see EXCEPTION: Cr
iminal action for violation of BP 22 which is deemed to include the correspondin
g civil action. The offended party shall, upon the filing of the criminal and ci
vil actions, pay in full the filing fees based on the face value of the check as
the actual damages. Purpose of Exception: to prevent the offended party from us
ing the prosecutors office and the court as vehicles for recovery of the face val
ue of the check, without paying the corresponding filing fees therefor. With res
pect to damages other than actual, if these damages are specified in the complai
nt or information, the corresponding filing fees should be paid, otherwise, the
trial court will not acquire jurisdiction over such other damages. Where moral,
exemplary and other damages are not specified in the complaint or information, t
he grant and amount thereof are left to the sound discretion of the trial court,
the corresponding filing fees need not be paid and shall simply constitute a fi
rst lien on the judgment. NOTE: Counterclaims, cross-claims, third-party complai
nts are no longer allowed in a criminal proceeding. Any claim which could have b
een the subject thereof maybe litigated in a separate civil action. In an appeal
of a criminal case, the appellate court may impose additional damages or increa
se or decrease the amounts of damages upon the accused-appellant. HOWEVER, addit
ional penalties cannot be imposed upon a co-accused who did not appeal, but modi
fications of the judgment beneficial to him are considered in his favor. The off
ended party in a criminal case may appeal the civil aspect despite the acquittal
of the accused. Where the trial court convicted the accused, but dismissed the
civil action instituted therein, the offended party may appeal the dismissal to
the CA. Compromise on civil aspect: The offended party may compromise the civil
aspect of a crime, provided that it must be entered before or during the litigat
ion, and not after final judgment. A compromise on the civil aspect is valid eve
n if it turns out to be unsatisfactory either to one or both of the parties. IMP
ORTANT: Section 1, Rule 111 now expressly provides that no counterclaim, cross-c
laim or thirdparty complaint may be filed by the accused in the criminal case, b
ut any cause of action which could have been subject thereof may be litigated in
a separate civil action. REASONS:
Page 182 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


a. the counterclaim of the accused will unnecessarily complicate and confuse the
criminal proceedings; b. the trial court should confine itself to the criminal
aspect and the possible civil liability of the accused arising out of the crime.
Section 2. suspended When separate civil action is criminal act or omission. It
does not state that the remedy can be availed of only in a separate civil actio
n. ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE FILING OF THE CIVIL CASE WHERE:
1. The acquittal is based on reasonable doubt, if the civil case has been reser
ved. 2. The decision contains a declaration that the liability is not criminal b
ut only civil in nature. 3. The civil liability is not derived from or based on
the criminal act of which the accused is acquitted. (Sapiera v. Court of Appeals
, 314 SCRA 370) Section 3. When civil action may proceed independently Prior res
ervation is not necessary to file separate civil action under Arts. 32, 33, 34 a
nd 2176 of the Civil Code. The phrase which has been reserved that has caused conf
licting rulings in the past has now been deleted. Actions based on quasi-delict
may be filed independently of the criminal action regardless of the result of th
e criminal action, except that a plaintiff cannot recover damages twice for the
same act or omission of the defendant. PURPOSE: To make the courts disposition of
the criminal case of no effect whatsoever on the separate civil case. Section 4
. Effect of death on civil actions EFFECT OF DEATH OF THE ACCUSED ON CIVIL ACTIO
NS 1. After arraignment and during the pendency of the criminal action: GENERAL
RULE: Death extinguishes the civil liability arising from delict or the offense
EXCEPT: where civil liability is predicated on other sources of obligations such
as law, contract, quasi-contract and quasi-delict. If such civil action which s
urvives is impliedly instituted in the criminal action, the legal representative
or heir of the deceased shall be substituted for the deceased. The criminal cas
e is reduced to a civil action.
Primacy of Criminal Action over Civil Action After the filing of the criminal ac
tion, the civil action which has been reserved cannot be instituted until final
judgment has been rendered in the criminal action If the civil action is institu
ted before the criminal action and the criminal action is subsequently commenced
, the pending civil action shall be suspended until final judgment of the crimin
al action has been rendered. EXCEPTIONS: 1. In cases of independent civil action
s based upon Article 32, 33, 34 and 2176 of the Civil Code; 2. In cases where th
e civil action presents a prejudicial question; and 3. Where the civil action is
not one intended to enforce the civil liability arising from the offense. CONSO
LIDATION OF CRIMINAL AND CIVIL CASES Before judgment on the merit is rendered in
the civil action, the same may, upon motion of the offended party be consolidat
ed with the criminal action in the court trying the criminal action. This is a m
odification on the rule on primacy of criminal action. The consolidation must be
effected in the criminal court, irrespective of the nature of the offense, the
amount of the civil claim or the rank of the court trying the civil case. In cas
es where consolidation is and a due course, the given QuickTime TIFF and admitted
decompressor evidence presented(Uncompressed) this picture. in the civil case a
re needed to see shall be deemed automatically reproduced in the criminal action
. The consolidated criminal and civil cases shall be tried and decided jointly.
NOTE: Article 29 of the Civil Code merely emphasizes that a civil action for dam
ages is not precluded by the acquittal of an accused for the same
Page 183 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


However, if the civil action has been reserved and subsequently filed or such ci
vil action has been instituted, when the accused died, then such civil action wi
ll proceed and substitution of parties shall be ordered by the court pursuant to
Sec.16 Rule 3 of the Rules of Court. 2. Before arraignment: The civil action im
pliedly instituted in the criminal action shall be dismissed without prejudice t
o the offended partys filing a civil action against the administrator of the esta
te of the deceased. NOTE: The independent civil action instituted under Section
3 of this Rule or which thereafter is instituted to enforce liability arising fr
om other sources of obligation may be continued against the estate or legal repr
esentative of the accused after proper substitution, or against said estate, as
the case may be. 3. Pending appeal of his conviction: It extinguishes his crimin
al liability as well as the civil liability based solely thereon. 4. Prior to fi
nal judgment: It terminates his criminal liability and only the civil liability
directly arising from and based solely on the offense committed. Section 5. Judg
ment in civil action not a bar The judgment in civil actions based on Arts. 32,
33, 34 and 2176 absolving the defendant from civil liability does not bar the cr
iminal action. NOTE: Where the criminal case was dismissed before trial because
the offended party executed an affidavit of desistance, the civil action thereof
is similarly dismissed. Section 6. SuspensionQuickTime and a of prejudicial by r
eason TIFF (Uncompressed) decompressor question are needed to see this picture.
PREJUDICIAL QUESTION It is one which arises in a case, the resolution of which i
s a logical antecedent of the issue involved therein and the cognizance of which
pertains to another tribunal. PURPOSE: To avoid two conflicting decisions. NOTE
: A prejudicial question is based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or innocence o
f the accused. PREJUDICIAL QUESTION 1. The prejudicial question may be raised du
ring the preliminary investigation of the offense or in court before the prosecu
tion rests its case. 2. The suspension of the criminal case due to a prejudicial
question is only a procedural matter, and is subject to a waiver by virtue of p
rior acts of the accused. 3. There is no prejudicial question where one case is
administrative and the other is civil. Time to Plead When the criminal action ha
s been filed in court for trial, the petition to suspend shall be filed in the s
ame criminal action at any time before the prosecution rests. WHERE TO FILE PETI
TION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION 1. Office of the Prosecuto
r; or 2. Court where the criminal action has been filed for trial at any time be
fore the prosecution rests. Section 7. Elements of prejudicial question ELEMENTS
OF A PREJUDICIAL QUESTION 1. The civil action must be instituted PRIOR to the c
riminal action; 2. The civil action involves an issue similar or intimately rela
ted to the issue raised in the subsequent criminal action; 3. The resolution of
such issue determines whether or not the criminal action may proceed.
RULE 112 PRELIMINARY INVESTIGATION Section 1. Preliminary investigation defined;
when required PRELIMINARY INVESTIGATION It is an inquiry or proceeding to deter
mine whether there exists sufficient ground to engender a wellfounded belief tha
t a crime has been committed and that the respondent is probably guilty thereof
and should be held for trial.
Page 184 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


PURPOSES: 1. To determine whether a crime has been committed and whether there i
s probable cause to believe that the accused is guilty thereof. 2. To preserve e
vidence and keep the witnesses within the control of the State. 3. To determine
the amount of bail, if the offense is bailable. Preliminary investigation is req
uired to be conducted BEFORE the filing of a complaint or information for an off
ense where the penalty prescribed by law is at least 4 years, 1 months and 7 day
without regard to the fine. It is not part of the trial of the criminal action
in court. Nor is its record part of the record of the case in the RTC. The dismi
ssal of the case by the investigator will not constitute double jeopardy and wil
l not bar the filing of another complaint for the same offense, but if re-filed,
the accused is entitled to another preliminary investigation (U.S. v. Marfori,
35 Phil 666). It is subject to the requirements of both substantive and procedur
al due process. The right of an accused to a preliminary investigation is not a
constitutional but merely a statutory right. Nonetheless, it is a component part
of due process in criminal justice and is a substantive right. A personal right
and may be waived expressly or by implication. Lack of preliminary investigatio
n is not a ground to quash or dismiss a complaint or information, nor does it af
fect the courts jurisdiction. When there is no preliminary investigation, the acc
used must invoke it at the first opportunity and the court should hold in abeyan
ce or suspend proceedings and remand the case to the office of the prosecutor fo
r him to conduct PI. WAIVER: 1. Failure to claim it QuickTimethea accused pleaded
. before and TIFF accused. decompressor 2. Silence of the (Uncompressed) this pi
cture. are needed to see 3. Failure to request it within 5 days from the time he
learns of the filing of the complaint or information in those instances where t
he accused is lawfully arrested without a warrant. Absence of preliminary invest
igation does not affect the jurisdiction of the court or invalidate the informat
ion if no objection was raised by the accused. If an objection was raised, the c
ourt, instead of dismissing the complaint or information should order the conduc
t of such investigation (Doromal v. Sandiganbayan, 117 SCRA 354). REMEDIES OF TH
E ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION: 1. Refuse to enter a plea u
pon arraignment and object to further proceedings upon such ground. 2. Insist on
a preliminary investigation. 3. Raise lack of preliminary investigation as erro
r on appeal. 4. File a petition for certiorari. 5. File for petition for prohibi
tion.
There is NO right of preliminary investigation when a person is lawfully arreste
d without a warrant unless there is a waiver of the provisions of Article 125 of
the Revised Penal Code. HOWEVER, THE ACCUSED CAN ASK FOR PRELIMINARY INVESTIGAT
ION IN THE FOLLOWING CASES: 1. If a person is arrested, he can ask for prelimina
ry investigation BEFORE the filing of the complaint/ information BUT he must sig
n a waiver in accordance with Article 125, RPC. 2. AFTER the filing of the infor
mation/ complaint, the accused may, within 5 days from the time he learns of its
filing ask for preliminary investigation. NOTE: This Rule has been partially am
ended by AM 05-0-8-26-SC. The amendments took effect on October 3, 2005. The ame
ndment removed the conduct of preliminary investigation from the judges of the f
irst level courts. Section 2. Officers authorized preliminary investigation to c
onduct
OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION 1. provincial or city p
rosecutor and their assistants 2. National and regional state prosecutors 3. Suc
h other officers as may be authorized by law such as the COMELEC, Ombudsman and
PCGG 4. Judges of RTCs No longer authorized to conduct PI: By implication, MTC j
udges in Manila and in chartered cities have not been granted the authority
Page 185 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


to conduct PI, as the officers authorized to do so are the prosecutors. TWO TYPE
S OF OFFENSES MAY BE FILED IN THE MTC FOR PRELIMINARY INVESTIGATION: 1. a case c
ognizable by the RTC may be filed with the MTC for PI; 2. even if it is cognizab
le by the MTC because it is an offense where the penalty prescribed by law is at
least 4 years 2 months and 1 day. Regarding offenses falling within the origina
l jurisdiction of the Sandiganbayan: Prosecutors or municipal trial court judges
conducting PI of offenses falling within the original jurisdiction of the Sandi
ganbayan shall, after their conclusion, transmit the records and their resolutio
ns to the Ombudsman or his deputy for appropriate action. Moreover, the prosecut
or or judge cannot dismiss the complaint without the prior written authority of
the Ombudsman or his deputy, nor can the prosecutor file an information with the
Sandiganbayan without being deputized by, and without prior written authority o
f, the Ombudsman or his deputy. Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001) T
he Ombudsman is clothed with authority to conduct preliminary investigation and
to prosecute all criminal cases involving public officers and employees, not onl
y those within the jurisdiction of the Sandiganbayan, but those within the juris
diction of the regular courts as well. 15 of RA 6770 (Ombudsman Act of 1989) doe
s not make any distinction. Any illegal act or omission of any public official is
broad enough to embrace any crime committed by a public officer or employee. Suc
h grant of primary jurisdiction over cases cognizable by the Sandiganbayan does
not necessarily imply the exclusion from its jurisdiction of cases involving pub
lic officers and employees cognizable by the other courts. Roxas v. Vasquez, G.R
. No. 114944 (2001) In criminal prosecutions, a reinvestigation, like an QuickTi
me and a appeal, renders TIFF (Uncompressed) case open for review, the entire dec
ompressor are needed to see this picture. regardless of whether a motion for rec
onsideration or reinvestigation was sought. The Ombudsman should not be limited
in its review. It is clear from R. A. 6770 that the Ombudsman may motu propio co
nduct a reinvestigation. ELECTION OFFENSES: The exclusive jurisdiction of the Co
melec to investigate and prosecute election offenses inheres even if the offende
r is a private individual or public officer or employee, and in the latter insta
nce, irrespective of whether the offense is committed in relation to his officia
l duties or not. In other words, it is the nature of the offense, namely, an ele
ction offense as defined in the Omnibus Election Code and in other election laws
, and not the personality of the offender that matters. THE OMBUDSMAN: The power
of the Ombudsman to make investigation extends to any illegal act or omission o
f any public official, whether or not the same is committed in relation to his o
ffice. Preliminary investigation by the Ombudsman is limited to cases cognizable
by the Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules of
Procedure of the Office of the Ombudsman. Section 4(d) of Administrative Order N
o. 07 disallows the filing of a motion to quash or dismiss a complaint filed wit
h the Ombudsman, except on the ground of lack of jurisdiction. Which remedy may
an aggrieved party avail of against resolutions of the Ombudsman in criminal or
non-administrative cases? The law is silent. Hence, appeal is not available as a
remedy because the right to appeal is a statutory privilege and may be availed
of only if there is a statute to that effect. However, an aggrieved party is not
without remedy, as he can resort to the special civil action of certiorari unde
r Rule 65. THE OMBUDSMAN DOES NOT HAVE THE FOLLOWING POWERS: 1. to prosecute bef
ore the Sandiganbayan any impeachable officers with any offense which carries wi
th it the penalty of removal from office, or any penalty service of which would
amount to removal from office because by constitutional mandate, they can only b
e removed from office on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other high crimes,
or betrayal of public trust 2. to prosecute public officers or employees who hav
e committed election offenses. 3. to file an information for an offense cognizab
le by the regular courts. EFFECTS OF AN INCOMPLETE PRELIMINARY INVESTIGATION
Page 186 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


1. It does not warrant the quashal of the information 2. It does not affect the
courts jurisdiction or the validity of the information. Section 3. Procedure PROC
EDURE 1. By reason of the abbreviated nature of Preliminary Investigation, a dis
missal of the charges as a result thereof is not equivalent to a judicial pronou
ncement of acquittal. 2. The accused or respondent in a criminal prosecution may
avail himself of discovery remedies either during preliminary investigation or
when the information has already been filed in court. 3. A motion to dismiss is
now a prohibited pleading during preliminary investigation. 4. The respondent is
now required to submit counter-affidavits and other supporting documents relied
upon by him for his defense. 5. The respondent now has the right to examine the
evidence submitted by the complainant of which he may not have been furnished a
nd to obtain copies thereof at his expense. Within 10 days after the filing, the
investigating officer shall either dismiss or issue subpoena. Filing of the com
plaint accompanied by the affidavits and supporting documents.
If subpoena is issued, respondent shall submit a counter-affidavit and other sup
porting documents within 10 days from receipt thereof.
Hearing (optional). It shall be held within 10 days from submission of counter-a
ffidavits or from the expiration of the period of their submission.
Resolution of investigating prosecutor. If respondent cannot be subpoenaed, or i
f subpoenaed but does not submit his counter-affidavit within 10 days, investiga
ting officer shall resolve the complaint based on the evidence presented by the
complainant. RIGHTS OF RESPONDENT IN A PRELIMINARY INVESTIGATION: 1. To submit c
ounter-affidavit. 2. To examine the evidence submitted by the complainant 3. To
be present in the clarificatory hearing. NOTE: The Rules does not require the pr
esence of the respondent in the Preliminary Investigation. What is required is t
hat he be given the opportunity to controvert the evidence of the complainant by
submitting counter-affidavits. Section 4. Resolution of investigating prosecuto
r and its review Resolution of investigating prosecutor and its review After hav
ing filed the information, the prosecutor is called upon to prosecute the case i
n court. It has
Page 187 of 289
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


been said that at this stage, unlike judges who are mandated to display cold neu
trality in hearing cases, the prosecutors are not required to divest themselves
of their personal convictions and refrain from exhibiting partiality. But while
he may strike hard blows, he is not at liberty to strike foul ones. If there is
probable cause to hold respondent liable, prepare resolution. that they were not
included in the information does not relieve them of criminal liability, and th
ey can be subsequently prosecuted. 2. The accused who has been charged with the
offense is not allowed to escape punishment merely because it develops in the co
urse of the trial that there were other guilty participants in the crime. 3. It
does not vitiate the validity of the information. Neither is the same a ground f
or a motion to quash. Role of Secretary Of Justice The Secretary of Justice is n
ot prevented from entertaining an appeal from the accused or from the offended p
arty even after the information has been filed and the trial court has arraigned
the accused. Section 4 of DOJ 223 should be construed as merely enjoining the S
ecretary of Justice to refrain, as far as practicable, from entertaining a petit
ion for review or appeal from the action of the prosecutor once the complaint or
information is filed in court. If the Secretary reverses the ruling of the pros
ecutor, the latter has to file the necessary motion to dismiss the complaint or
information, the grant or denial of which is subject to the discretion of the tr
ial court. EFFECT IF THE INFORMATION IS FILED BY SOMEONE NOT AUTHORIZED BY LAW T
he court does not acquire jurisdiction. The accuseds failure to assert lack of au
thority on the part of the prosecutor in filing the information does not constit
ute a waiver thereof. The prosecutor is required to resolve the complaint based
on the evidence presented by the complainant in the event that the respondent ca
nnot be subpoenaed or the respondent, if subpoenaed, does not submit a counter-a
ffidavit within the 10-day period. Section 5. Resolution of investigating judge
and its review (DELETED) RESOLUTION OF INVESTIGATING JUDGE AND ITS REVIEW A.M. N
o. 05-8-26-SC: All First Level Courts shall continue with the preliminary invest
igation of cases pending with them and terminate them not later than December 31
, 2005. Upon the effectivity of these amendments, First Level Courts shall no lo
nger accept new cases for
If no probable cause exists, dismiss the case
Within 5 days from resolution, forward the record of the case to 1) provincial o
r city prosecutor; 2) chief state prosecutor; 3) Ombudsman or his deputy, in cas
es cognizable by the Sandiganbayan in the exercise of its original jurisdiction.
The abovementioned officers shall act on the resolution within10 days from recei
pt thereof and shall immediately inform the parties of such action.
HE SHALL CERTIFY UNDER OATH IN THE INFORMATION THAT: 1. he or an authorized offi
cer personally examined the complainant and his witnesses; 2. there is reasonabl
e ground a crime has been committed and the accused is probably guilty thereof;
3. the accused was informed of the complaint and the evidence against him; and 4
. the accused was given an opportunity to submit controverting evidence. QuickTi
me and a No complaint or information may be filed or dismissed by an investigatin
g prosecutor without the prior written authority or approval of the provincial o
r city prosecutor or the Ombudsman or his deputy. EFFECTS OF EXCLUSION OF OTHER
PERSONS FROM THE INFORMATION 1. If during the trial, evidence is shown that such
persons should have been charged, the fact
TIFF (Uncompressed) decompressor are needed to see this picture.
Page 188 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


preliminary investigation which fall under exclusive jurisdiction of courts of o
ther levels. the should the trial court do upon the prosecutors motion to dismiss
? He must make his own assessment of the evidence and not just rely on the concl
usion of the prosecutor; otherwise the court becomes a mere rubber stamp. REINVE
STIGATION: Once the complaint or information is filed in court, any motion for r
einvestigation is addressed to the sound discretion of the court. While the tria
l court judge has the power to order the reinvestigation of the case by the pros
ecutor, he may not, before the prosecutor concluded the reinvestigation, recall
said order, set the case for arraignment and trial, without gravely abusing his
discretion. MUNICIPAL JUDGE MAY ISSUE ARREST WARRANT BEFORE CONCLUSION OF PRELIM
INARY INVESTIGATION IF: 1. he finds that probable cause exists and 2. there is a
necessity of placing respondent under immediate custody. IMPORTANT: The rule is
now that the investigating judges power to order the arrest of the accused is li
mited to instances in which there is a necessity for placing him in custody in o
rder not to frustrate the ends of justice. Thus, even if the judge finds probabl
e cause, he cannot, on such ground alone, issue a warrant of arrest. He must fur
ther find there is a necessity of placing the accused under immediate custody in
order not to frustrate the ends of justice. The investigating judge has no powe
r to reduce or change the crime charged in order to justify the grant of bail to
the accused. The power belongs to the prosecutor. After the conclusion of his P
I, the judge has to transmit to the provincial prosecutor his resolution and ent
ire records of the case, regardless of whether he finds a probable cause or suff
icient ground to issue a warrant of arrest. Section 7. When accused lawfully arr
ested without warrant GENERAL RULE: No complaint or information shall be filed f
or an offense which is penalized by imprisonment of not less than 4 years, 2 mon
ths and 1 day without PI. EXCEPTION: When the accused has been lawfully arrested
without warrant, in which case, an inquest
Page 189 of 289
These amendments shall take effect on October 3, 2005 following their publicatio
n in a newspaper of general circulation not later than September 15, 2005. Secti
on 6. When warrant of arrest may issue WHEN WARRANT OF ARREST MAY ISSUE If the j
udge finds probable cause, he shall issue a warrant of arrest or a commitment or
der if the accused had already been arrested and hold him for trial. If the judg
e is satisfied that there is no necessity for placing the accused under custody,
he may issue summons instead of warrant of arrest. Judges of the RTCs and infer
ior courts need not personally examine the complainant and his witnesses in the
determination of probable cause for the issuance of the warrant of arrest. He is
only required to: 1. Personally evaluate the report and supporting documents su
bmitted by the prosecutor; 2. On the basis of the report, he may: a. Dismiss b.
Issue a warrant c. Require further affidavits INVALID: A warrant issued by the j
udge solely on the basis of the report and recommendation of the investigating p
rosecutor, without personally determining the existence of probable cause by ind
ependently examining sufficient evidence submitted by the parties during the Pre
liminary Investigation. Effect of a finding of probable cause It merely binds ov
er the suspect to stand trial. It is not a pronouncement of guilt. WHAT THE ACCU
SED, WHO BELIEVES THAT THERE IS NO PROBABLE CAUSE TO HOLD HIM FOR TRIAL, MAY DO:
1. to file with the trial court a motion to dismiss on QuickTime and a TIFF such
ground (Uncompressed) this picture.determination of or for decompressor the are
needed to see probable cause. 2. if the warrant of arrest has been issued, the
accused may file a motion to quash the arrest warrant or to recall the same on t
he ground of lack of probable cause. Where an information has already been filed
in court, and the Secretary of Justice reversed the prosecutors finding of proba
ble cause, what

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


must be conducted by an inquest prosecutor who will determine whether his arrest
without warrant is lawful. The inquest prosecutor may order the release of the
arrested person if he finds no sufficient ground to hold him without prejudice t
o conducting further investigation, or file complaint or information within the
period specified in Art. 125 of the RPC. In case a person is arrested without a
warrant, a complaint or information may only be filed after an inquest conducted
in accordance with existing rules. Provided: that in the absence or unavailabil
ity of an inquest prosecutor, the complaint may be filed by the offended party o
r a peace officer directly with the proper court on the basis of the affidavit o
f the offended party or arresting officer or person. Before the filing of a comp
laint or information, the person arrested without a warrant may ask for a prelim
inary investigation by a proper officer, but he must sign a waiver of the provis
ions of Art. 125 of the RPC. If the accused allows himself to be arraigned witho
ut asking for a preliminary investigation, he is deemed to have waived the right
to such PI. When the complaint or information was filed without PI, the accused
may, within 5 days from the time he learns of the filing of the information ask
for a preliminary investigation with the same right to adduce evidence in his f
avor in the manner prescribed in this Rule. NOTE: The 5 day period is MANDATORY,
failure to file the motion within the said period amounts to a waiver of the rig
ht to ask for preliminary investigation. Where the information was amended witho
ut a new PI having been conducted, the 5-day period is computed from the time th
e accused learns of the filing of said amended information. Where the trial cour
t has granted a motion for reinvestigation, it must hold ain abeyance the QuickT
ime and (Uncompressed) decompressor arraignment andTIFFtrial of seethepicture. ac
cused until the are needed to this prosecutor shall have conducted and made a re
port on the result of the reinvestigation. Right to Bail Pending Preliminary Inv
estigation A person lawfully arrested may post bail before the filing of the inf
ormation or even after the filing without waiving his right to PI, provided that
he asks for a PI by the proper officer within the period fixed in the said rule
. (People v. Court of Appeals, May 29, 1995). Section 8. Records An information
or complaint filed in court shall be supported by the affidavits and counter-aff
idavits of the parties and their witnesses, together with the other supporting e
vidence and the resolution on the case. Records of the preliminary investigation
shall NOT automatically form part of the records of the case. Courts are not co
mpelled to take judicial notice thereof. It must be introduced as evidence. Sect
ion 9. Cases not requiring preliminary investigation nor covered by the Rule on
Summary Procedure Cases where the punishment does not exceed 4 years 2 months an
d 1 day. PROCEDURE TO BE FOLLOWED: a. Evaluate the evidence presented; b. Conduc
t searching questions or answers; c. Require the submission of additional eviden
ce. For cases under the Revised Rules on Summary Procedure, no warrant shall be
issued except where the accused fails to appear after being summoned. CONDITIONS
FOR THE ISSUANCE OF WARRANT OF ARREST: 1. Must examine in writing and under oat
h the complainant and his witnesses by searching questions and answers. 2. Be sa
tisfied that a probable cause exists. 3. That there is a need to place responden
t under immediate custody in order not to frustrate the ends of justice.
RULE 113 ARREST Section 1. Definition of Arrest ARREST It is the taking of a per
son into custody in order that he may be bound to answer for the commission of a
n offense.
Page 190 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


The application of actual force, manual touching of the body, physical restraint
or formal declaration of arrest is not required. Arrest includes submission to
the custody of the person making the arrest. Section 2. Arrest; how made MODES O
F ARREST: 1. Arrest by virtue of a warrant 2. Arrest without a warrant under exc
eptional circumstances as may be provided by statute ESSENTIAL REQUISITES OF A V
ALID WARRANT OF ARREST: 1. It must be issued upon probable cause which must be d
etermined personally by a judge after examination under oath or affirmation of t
he complainant and the witnesses he may produce. 2. The warrant must particularl
y describe the person to be seized. A warrant of arrest has no expiry date. It r
emains valid until arrest is effected or the warrant is lifted. Section 3. Duty
of arresting officer 1. Arrest the accused 2. Deliver him to the nearest police
station or jail without unnecessary delay Section 4. Execution of warrant THE JU
DGE ISSUES A WARRANT OF ARREST IN 2 INSTANCES: 1. Upon the filing of the informa
tion by the prosecutor. In issuing this kind of warrant, the judge does not pers
onally examine the complainant and the witnesses he may produce, but he merely e
valuates personally the report and supporting documents and other evidence adduc
ed during the preliminary investigation and submitted to him by the prosecutor,
and if he finds probable cause on the basis QuickTime and a thereof TIFF (Uncompr
essed) this picture. he issues see decompressor for the arrest are needed to the
warrant of the accused. 2. Upon application of a peace officer. In this kind of
warrant, the judge must personally examine the applicant and the witnesses he m
ay produce, to find out whether there exists probable cause, otherwise the warra
nt issued is null and void. He must subject the complainant and the witnesses to
searching questions. The reason for this is there is yet no evidence on record
upon which he may determine the existence of probable cause. A warrant of arrest
has no expiry date. It remains valid until arrest is effected or the warrant is
lifted. However, Sec. 4 of Rule 113 requires the head of the office who applied
for warrant to execute the same within 10 days from receipt thereof and for the
arresting officer assigned to execute the same to submit, within 10 days from t
he expiration of the first 10-day period, a report to the judge who issued the w
arrant. NOTE: The return mentioned in this section refers not to the physical de
livery of the very same copy of the process to the issuing court, but the report
of the officer charged with its execution on the action taken by him thereon. (
People v. Givera, 349 SCRA 513) Section 5. Arrest without a warrant; when lawful
LAWFUL WARRANTLESS ARREST: 1. When IN HIS PRESENCE, the person to be arrested h
as committed, is actually committing or is attempting to commit an offense (in f
lagrante delicto arrests). 2. When an offense has in fact been committed and he
has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstan
ce that the person to be arrested has committed it (Doctrine of Hot Pursuit). 3.
When the person to be arrested is a prisoner who has escaped from a penal estab
lishment or place where he is serving final judgment or temporarily confined whi
le his case is pending or has escaped while being transferred from one confineme
nt to another. 4. When a person who has been lawfully arrested escapes or is res
cued (Sec. 13, Rule 113). 5. By the bondsman for the purpose of surrendering the
accused (Sec. 23, Rule 113). 6. Where the accused attempts to leave the country
without permission of the court (Sec. 23, Rule 114). NOTES: 1. In a citizens arr
est, the person may be arrested and searched of his body and of his personal eff
ects or belongings, for dangerous weapons or anything which may be used as proof
of the commission of an offense, without need of a search warrant.
Page 191 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


2. Sec. 5(a) refers to arrest in flagrante delicto while Sec. 5(b) refers to hot
pursuit. 3. Sec. 5(b) authorizes warrantless arrest when an offense has in fact
just been committed. The word just implies immediacy in point of time. 4. Delivery
of the detained person to the proper judicial authorities means the filing of th
e complaint or information with the municipal trial court or with the inquest fi
scal or prosecutor who shall then decide either to order the release of the deta
ined person or to file the corresponding information in court. An accused who en
ters his plea of NOT guilty and participates in the trial waives the illegality
of the arrest. Objection to the illegality must be raised before arraignment, ot
her wise it is deemed waived, as the accused had voluntarily submitted himself t
o the jurisdiction of the court. Section 6. Time of making arrest It may be made
on any day and at any time of the day or night. Section 7. Method of Arrest by
officer by virtue of warrant When making an arrest by virtue of a warrant the of
ficer shall inform the person to be arrested of the cause of the arrest and the
fact that a warrant has been issued for his arrest. EXCEPTIONS: 1. when he flees
; or 2. forcibly resists before the officer has opportunity to so inform him; or
3. when the giving of such information will imperil his arrest. The officer nee
d not have the warrant in his possession at the time of the arrest but after the
arrest, if the person arrested soand a requires, the warrant QuickTime shall be
shown toTIFF (Uncompressed) this picture. himneededsoondecompressor as to see as
practicable. are Section 8. Method of arrest by officer without a warrant When
making an arrest by virtue of a warrant the officer shall inform the person to b
e arrested his authority and the cause of the arrest. EXCEPTIONS:
Page 192 of 289
1. When the person is engaged in the commission of an offense; or 2. Pursued imm
ediately after its commission; or 3. Has escaped, flees; or 4. Forcibly resists
before the officer has opportunity to so inform him; or 5. When giving of such i
nformation will imperil the arrest. Section 9. Method of arrest by private perso
n When making an arrest, a private person shall inform the person to be arrested
of the intention to arrest him and the cause of the arrest. EXCEPTIONS: 1. The
person to be arrested is engaged in the commission of an offense; or 2. Pursued
immediately after its commission; or 3. Has escaped, flees; or 4. Forcibly resis
ts before the officer has opportunity to so inform him; or 5. When giving of suc
h information will imperil the arrest. Section 10. Officer may summon assistance
Arresting officer may orally summon as many persons as he deems necessary to as
sist him in effecting the arrest. NOTE: This rule does not cover a private indiv
idual making an arrest. Section 11. Right of officer to break into building or e
nclosure REQUISITES BEFORE AN OFFICER CAN BREAK INTO A BUILDING OR ENCLOSURE TO
MAKE AN ARREST: 1. That the person to be arrested is or is reasonably believed t
o be in the said building; 2. That he has announced his authority and purpose fo
r entering therein; 3. That he has requested and been denied admittance. NOTE: R
ule is applicable both where there is a warrant and where there is a valid arres
t without a warrant. Section 12. Right to break out of the building or enclosure
to effect release

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


An officer making an arrest who has entered a building or enclosure may break ou
t therefrom when necessary to liberate himself. Section 13. Arrest after escape
or rescue If a person arrested escapes or is rescued, any person may immediately
pursue or retake him without a warrant at any time and in any place within the
Philippines. Section 14. Right of an attorney or relative to visit the person ar
rested The attorney of the person arrested have the right to visit and confer pr
ivately with such person in jail or any place of custody at any hour of the day
or night. RA 7438 defined the RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUST
ODIAL INVESTIGATION with the penalties for violation thereof. 1. Custodial inves
tigation Involves any questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of actio
n in any significant way. It is only after investigation ceases to be a general
inquiry into an unsolved crime and begins to focus on a particular suspect, the
suspect is taken into custody, and the police carries out a process of interroga
tions that lends itself to eliciting incriminating statements that the rule begi
ns to operate. Embraced in custodial investigation: invited for questioning re-e
nactment Not embraced in custodial investigation: police line-up ultraviolet ray
examination normal audit examination by the COA of the accountability of a publ
ic officer 2. When the threat or promise was made by, or in the presence of, a p
erson in authority, who has, OR is supposed by the accused to have power or auth
ority to fulfill the threat or promise, the confession of the accused is inadmis
sible. 3. Presumption of regularity in the performance of duties:
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.
Does not apply during in-custody investigation, nor can it prevail over the cons
titutional right of the accused to be presumed innocent. 4. The arresting office
r may be held civilly liable for damages under Art. 32 of the Civil Code. The ve
ry nature of Art. 32 is that the wrong may be civil or criminal. It is not neces
sary that there should be malice or bad faith. 5. On Civil Procedure: Section 20
Rule 14 of the 1997 Rules of Civil Procedure provides in part that the inclusio
n in a motion to dismiss of other grounds aside from lack of jurisdiction over t
he person of the defendant shall not be deemed a voluntary appearance. Section 8
Rule 15 provides that subject to the provisions of Section 1 Rule 9, a motion a
ttacking a pleading, order, judgment or proceeding shall include all objections
then available, and all objections not so included shall be deemed waived. These
changes in the 1997 Rules of Civil Procedure are applicable to criminal cases a
s Section 3 Rule 1 thereof provides that these rules shall govern the procedure t
o be observed in actions, civil or criminal, and special proceedings. Moreover, t
he omnibus motion rule applies to motions to quash. 6. Section 26 of Rule 114 of
the New Rules of Criminal Procedure provides that bail is not a bar to objectio
n on illegal arrest, lack of or irregular preliminary investigation. This is an
abandonment of the Cojuangco, Jr. v. Sandiganbayan ruling.
RULE 114 BAIL Section 1. Bail
ase of a person in custody of
tee his appearance before any
specified. Bail may be given
cash deposit or recognizance.
Page 193 of 289

defined BAIL It is the security given for the rele


the law, furnished by him or a bondsman, to guaran
court as required under the conditions hereinafter
in the form of a corporate surety, property bond,

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


PURPOSES OF A BAIL: 1. to honor the presumption of innocence until his guilt is
proven beyond reasonable doubt 2. to enable him to prepare his defense without b
eing subject to punishment prior to conviction. FORMS OF BAIL: 1. corporate sure
ty 2. property bond 3. cash deposit 4. recognizance Bail Bond vs. Recognizance B
AIL BOND RECOGNIZANCE An obligation under seal An obligation of record, given by
the accused entered into before some with one or more sureties court or magistr
ate duly and made payable to the authorized to take it with proper officer with
the the condition to do some condition to be void upon particular act. performan
ce by the accused of such acts as he may legally be require to perform. NOTE: A
person is in the custody of law when he has been arrested or otherwise deprived
of his freedom or when he has voluntarily submitted himself to the jurisdiction
of the court by surrendering to the proper authorities. All persons, except thos
e charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong shall, before conviction, be bailable. PROSECUTION WITNESSES MAY ALSO
BE REQUIRED TO POST BAIL TO ENSURE THEIR APPEARANCE AT THE TRIAL OF THE CASE WHE
RE: a. There is a substitution of information (Sec. 4, Rule 110) b. Where the co
urt believes that a material witness may not appear at the trial. (Sec. 14, Rule
119) Upon assumption of QuickTime and a the obligation of bail, the TIFF (Uncomp
ressed) decompressor sureties become in are needed to see this picture. their pr
incipal. law the jailers of As bail is intended to obtain or secure ones provisio
nal liberty, the same cannot be posted before custody over him has been acquired
by the court. REQUIRING ARRAIGNMENT BEFORE GRANT OF BAIL IS NOT VALID BECAUSE:
a. The trial court could ensure the presence of the accuse at the arraignment pr
ecisely by granting bail and ordering his presence at any stage of the proceedin
gs such as arraignment (Sec. 2[b], Rule 114); b. The accused will be placed in a
position where has to choose between filing a motion to quash and thus delay hi
s release on bail and foregoing the filing of a motion to quash so that he can b
e arraigned at once and thereafter be released on bail. (Lavides v. Court of App
eals, 324 SCRA 321) Section 2. Condition of the Bail; Requirements THE SURETYS LI
ABILITY COVERS ALL THESE 3 STAGES: a. trial b. promulgation c. the execution of
the sentence. Unless the court directs otherwise, the bail bond posted by an acc
used remains in force at all stages of the case until its final determination. T
he accused shall appear before the proper court whenever required by the court o
r rules. Failure of the accused to appear at the trial without justification des
pite due notice shall be deemed a waiver of his right to be present thereat. The
trial may proceed in absentia. The bondsman shall surrender the accused to cour
t for execution of the final judgment. If the accused presents his notice of app
eal, the trial court will order the accused to be taken into custody in the abse
nce of a new bail bond on appeal duly approved by the court. If the accused does
not appeal, the bondsman must produce the accused on the 15th day from promulga
tion of sentence for service of sentence. Yap v. CA and the People, G.R. No. 141
529 (2001) The prohibition against requiring excessive bail is enshrined in the
Constitution. The obvious rationale is that imposing bail in an excessive amount
could render meaningless the right to bail. The court has wide latitude in fixi
ng the amount of bail. Where it fears that the accused may jump bail, it is cert
ainly not precluded from installing devices to ensure against the same. Options
may include increasing the bail bond to an appropriate level, or requiring the
Page 194 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


person to report periodically to the court and to make an accounting of his move
ments. Although an increase in the amount of bail while the case is on appeal ma
y be meritorious, the SC found that the setting of the amount at P5.5M is unreas
onable, excessive, and constitutes an effective denial of As right to bail. The B
ail Bond Guide, a circular of the Department of Justice for the guidance of stat
e prosecutors, although technically not binding upon the courts, merits attention
, being in a sense an expression of policy of the Executive Branch, through the
DOJ, in the enforcement of criminal laws. Thus, courts are advised that they must
not only be aware but should also consider the Bail Bond Guide due to its signi
ficance in the administration of criminal justice. This notwithstanding, the Cou
rt is not precluded from imposing in As case an amount higher than P40T (based on
the Bail Bond Guide) where it perceives that an appropriate increase is dictate
d by the circumstances. Section 3. No release or transfer except on court order
or bail No person under detention by legal process shall be released or transfer
red except upon order of the court or when he is admitted to bail. Section 4. Ba
il, a matter of right; exception WHEN BAIL IS A MATTER OF RIGHT: 1. before or af
ter conviction by the MTC 2. before conviction, for all offenses punishable by l
ower than reclusion perpetua prosecution does not have the right to oppose or to
present evidence for its denial. WHEN BAIL IS A MATTER OF DISCRETION: 1. before
conviction, in offenses punishable by death, reclusion perpetua or life impriso
nment 2. after conviction by the RTC of a non-capital offense prosecution is ent
itled to present evidence for its denial.
are needed to see No. 129782 (2001) People v. Singh, et. al., G.R.this picture.
In hearing the petition for bail, the prosecution has the burden of showing that
the evidence of guilt is strong pursuant to 8 Rule 114. In bail proceedings, th
e prosecution must be given ample opportunity to show that the evidence of guilt
is strong. While the proceeding is conducted as a regular trial, it must be lim
ited to the determination of the bailability of the accused. It should be brief
and QuickTime and a TIFF (Uncompressed) decompressor
speedy, lest the purpose for which it is available is rendered nugatory. Right t
o bail may be waived. BAIL IN COURT-MARTIAL OFFENSES: The right to bail of an ac
cused military personnel triable by courts-martial does not exist, as an excepti
on to the general rule that an accused is entitled to bail except in a capital o
ffense where the evidence of guilt is strong. RATIONALE: The unique structure of
the military justifies exempting military men from the constitutional coverage
on the right to bail. The right to bail is not available to military personnel o
r officer charged with a violation of the Articles of War. (Aswat v. Galido, 204
SCRA 205) Notice of hearing required: Whether bail is a matter of right or of d
iscretion, reasonable notice of hearing is required to be given to the prosecuto
r or fiscal or at least he must be asked for his recommendation because in fixin
g the amount of bail, the judge is required to take into account a number of fac
tors such as the applicants character and reputation, forfeiture of other bonds o
r whether he is a fugitive from justice. Hearing is not required if bail is reco
mmended by prosecution and it is a matter of right. Summary of the evidence for
the prosecution The courts order granting or refusing bail must contain a summary
of the evidence for the prosecution, otherwise the order granting or denying ba
il may be invalidated because the summary of the evidence for the prosecution wh
ich contains the judges evaluation of the evidence may be considered as an aspect
of procedural due process for both the prosecution and the defense. It would be
premature, not to say incongruous, to file a petition for bail for someone whos
e freedom has yet to be curtailed. Section 5. Bail, when discretionary 1. Not en
titled to bail: An accused who has been convicted of an offense which carries a
penalty of more than 20 years is not entitled to bail during the pendency of his
appeal. An accused who is convicted of a capital offense is no longer entitled
to bail on
Page 195 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


appeal since his conviction imports that the evidence of guilt is strong. 2. Tri
al court may grant bail before appeal is perfected Whether bail is a matter of r
ight or discretion, the trial court may grant bail and approve the amount of the
bail bond before the accused has perfected his appeal, appeal being perfected u
pon filing of a written notice of appeal and furnishing the adverse party copy t
hereof. However if the decision of the trial court convicting the accused change
d the nature of the offense from non-bailable to bailable, the application for b
ail can only be filed with and resolved by the appellate court. Even if there is
no notice of appeal, if the decision of the TC convicting the accused changed t
he nature of the offense from non-bailable to bailable, the application for bail
can only be filed with and resolved by the appellate court. 3. After appeal is
perfected, the trial court loses jurisdiction to grant bail and to approve bail
bond. However, the accused may apply for bail or provisional liberty with the ap
pellate court. IF THE PENALTY IMPOSED BY THE TRIAL COURT IS IMPRISONMENT EXCEEDI
NG 6 YEARS, THE ACCUSED SHALL BE DENIED BAIL OR HIS BAIL BE CANCELLED UPON A SHO
WING BY THE PROSECUTION OF THE FOLLOWING: a. Recidivism, quasi-recidivist or hab
itual delinquent or has committed the crime aggravated by the circumstance of re
iteration; b. That he has previously escaped from legal confinement, evaded sent
ence or violated the condition 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 releas
ed on bail; or e. That there is undue riskand a he may commit QuickTime that TIFF
(Uncompressed) decompressor another crime needed to see this picture. are durin
g the pendency of the appeal. Section 6. Capital offense, defined CAPITAL OFFENS
E It is an offense which, under the law existing at the time of its commission a
nd of the application for admission to bail may be punished with death. The capi
tal nature of an offense is determined by the penalty prescribed by law, and not
by the penalty that may be imposed after trial and on the basis of the evidence
adduced and the presence of aggravating or mitigating circumstance. NOTE: Repub
lic Act No. 9346 entitled An Act Prohibiting the Imposition of Death Penalty in t
he Philippines was enacted on June 24, 2006 repealing R.A. No. 8177 and R. A. No.
7659 and abolishing the death penalty. Section 7. Capital offense or an offense
punishable by reclusion perpetua or life imprisonment or life imprisonment CONV
ICTION This refers to conviction by the trial court, which has not become final,
as the accused still has the right to appeal. After conviction by the trial cou
rt, the accused convicted of a capital offense is no longer entitled to bail, an
d can only be released when the conviction is reversed by the appellate court. S
ection 13, Article III of the 1987 Constitution Section 8. Burden of proof in ba
il application Prosecution has burden of proof At the hearing of an application
for bail filed by a person in custody for the commission of an offense punishabl
e by reclusion perpetua or life imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong. EVIDENCE OF GUILT in the Constitution
and the Rules refers to a finding of innocence or culpability, regardless of the
modifying circumstances. Regarding Minors Charged with a Capital Offense If the
person charged with a capital offense, such as murder, admittedly a minor, whic
h would entitle him, if convicted, to a penalty next lower than that prescribed
by law, he is entitled to bail regardless of whether the evidence of guilt is st
rong. The reason for this is that one who faces a probable death sentence has a
particularly strong temptation to flee. This reason does not hold where the accu
sed has been established without objection to be minor who by law cannot be sent
enced to death. Duty of judge to conduct hearing Where the prosecution agrees wi
th the accuseds application for bail or foregoes the introduction of evidence, th
e court must nonetheless set the application for hearing. It is mandatory for th
e judge
Page 196 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


to conduct a hearing and ask searching and clarificatory questions for the purpo
se of determining the existence of strong evidence against the accused; and the
order, after such hearing, should make a finding that the evidence against the a
ccused is strong. Section 9. Amount of bail; guidelines THE JUDGE SHALL FIX A RE
ASONABLE AMOUNT OF BAIL CONSIDERING PRIMARILY, BUT NOT LIMITED TO THE FOLLOWING
FACTORS: a. b. c. d. e. f. g. Financial ability of the accused to give bail; Nat
ure and circumstances of the offense; Penalty for the offense charged; Character
and reputation of the accused; Age and health of the accused; Weight of the evi
dence against the accused; Probability of the accused appearing at the trial; h.
Forfeiture of other bail; i. The fact that the accused was a fugitive from just
ice when arrested; and j. Pendency of other cases where the accused is on bail.
Section 10. Corporate Surety Any domestic or foreign corporation, licensed as su
rety in accordance with law and currently authorized to act as such, may provide
bail by bond subscribed jointly by the accused and an officer of the corporatio
n duly authorized by the board of directors. The term of the bail bond is not de
pendent upon faithful payment of the bond premium. Section 11. Property bond; ho
w posted PROPERTY BOND It is an undertaking constituted as a lien on the real pr
operty given as security for the amount of the bail. Within 10 days after the ap
proval of the bond, the accused shall annotate the lien on the certificate of ti
tle with the Registry of Deeds and on the corresponding tax declaration in the o
ffice of the provincial, city and municipal assessor concerned. Failure to do so
shall be sufficient cause for cancellation of the property bond and his re-arre
st and detention.
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.
Section 12. Qualifications of sureties in property bond QUALIFICATIONS: a. Each
must be a resident owner of real property within the Philippines; b. Where there
is only one surety, his real estate must be worth at least the amount of the un
dertaking; c. If there are two or more sureties, each may justify in an amount l
ess than that expressed in the undertaking but the aggregate of the justified su
ms be equivalent to the whole amount of the bail demanded. d. Every surety must
be worth the amount specified in his own undertaking over and above all just deb
ts, obligations and properties exempt from execution. Section 13. Justification
of Sureties BEFORE ACCEPTING A SURETY OR BAIL BOND, THE FOLLOWING REQUISITES MUS
T BE COMPLIED WITH: a. photographs of the accused; b. affidavit of justification
; c. clearance from the Supreme Court; d. certificate of compliance with Circula
r No. 66 dated September 19, 1996; e. authority of the agent; and f. current cer
tificate of authority issued by the Insurance Commissioner with a financial stat
ement showing the maximum underwriting capacity of the surety company. NOTE: The
purpose of requiring the affidavit of qualification by the surety before the ju
dge is to enable the latter to determine whether or not the surety possesses the
qualification to act as such, especially his financial worth as required in the
previous section. Section 14. Deposit of cash as bail The accused or any person
acting on his behalf may deposit cash with the nearest collector of internal re
venue or provincial, city or municipal treasurer the amount of bail fixed by the
court or recommended by the prosecutor who investigated or filed the case. The
trial judge has no authority to strictly require that only cash bond, instead of
a surety bond, be deposited for the provisional release of the accused. Section
15. Recognizance
Page 197 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


RECOGNIZANCE It is an obligation of record, entered into before some court or of
ficer authorized to take it with a condition to do some particular act, the most
usual condition in criminal cases being the appearance of the accused for trial
. The release of the accused may be on his own recognizance, which means that he
has become his own jailer. It may be to a responsible person. Persons charged w
ith offenses falling under the Rule on Summary Procedure may be released either o
n bail or on recognizance of a responsible citizen acceptable to the court. Espir
itu v. Jovellanos, A.M. No. MTJ-97-1139 (1997) THE FOLLOWING ARE CASES WHERE THE
COURT MAY ORDER THE RELEASE ON RECOGNIZANCE OF ANY PERSON UNDER DETENTION a. wh
en the offense charged is for violation of an ordinance, a light, or a criminal
offense, the imposable penalty of which does not exceed 6 months imprisonment an
d/or P2000 fine, under the circumstances provided in RA No. 6036 b. where a pers
on has been in custody for a period equal to or more than the minimum of the imp
osable principal penalty, without application of the Indeterminate Sentence Law
or any modifying circumstance, in which case the court, in its discretion, may a
llow his release on his own recognizance c. where the accused has applied for pr
obation, pending resolution of the case but no bail was filed or the accused is
incapable of filing one d. in case of a youthful offender held for physical and
mental examination, trial, or appeal, if he is unable to furnish bail and under
circumstances envisaged in PD No. 603 as amended. Section 16. Bail, when not req
uired; reduced bail or recognizance
are needed to see this picture. BAIL IS NOT REQUIRED WHEN THE LAW OR RULES PROVI
DE: 1. Offense charged is violation of an ordinance, light felony or criminal of
fense the imposable penalty does not exceed 6 months of imprisonment and/or fine
of P2,000 under RA 6036. 2. Where the accused applied for probation and before
the same has been resolved but no bail was filed or the accused is incapable of
filing QuickTime and a TIFF (Uncompressed) decompressor
one, in which case he may be released on his own recognizance. 3. In case of a y
outhful offender held for physical or mental examination, trial or appeal, if un
able to furnish bail and under the circumstances provided by P.D. 603, as amende
d. 4. A person who has been in custody for a period equal to or more than the po
ssible maximum imprisonment prescribed for the offense charged, without prejudic
e to the continuation of the trial or the proceedings on appeal. 5. A person acc
used of an offense with a maximum penalty of destierro shall be released after 3
0 days of preventive imprisonment. Reduced Bail A person in custody for a period
to or more than the minimum of the principal penalty prescribed for the offense
charged, without application of the Indeterminate Sentence Law or any modifying
circumstance, shall be released on a reduced bail or on his own recognizance at
the discretion of the court. Section 17. Bail, where filed WHERE BAIL IS FILED:
1. May be filed with the court where the case is pending; or 2. In the absence
or unavailability of the judge thereof, with the regional trial judge or any inf
erior court judge in the province, city or municipality; 3. If the accused was a
rrested in a province, city or municipality other than the case is pending, bail
may be filed with the RTC of the said place or if no judge is available, with a
ny inferior court judge therein; 4. Where bail is a matter of discretion or the
accused seeks to be released on recognizance, it may only be filed in the court
where the case is pending, whether on trial or appeal; 5. Any person not yet cha
rged in court may apply for bail with any court in the province, city or municip
ality where he is held; 6. If the accused was convicted and the nature of the of
fense changed from non-bailable to bailable, the application can be made with an
d resolved by the appellate court. A judge presiding in one branch has no power
to grant bail to an accused who is being tried in another branch presided by ano
ther judge who is not absent or unavailable, and his act of releasing him on bai
l
Page 198 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


constitutes ignorance of law which subjects him to disciplinary sanction. Sectio
n 18. Notice of application to prosecutor Court to give reasonable notice of the
hearing to the prosecutor or require him to submit his recommendation. Section
19. Release on bail Upon approval of the bail by the judge, the accused must be
discharged. An officer who fails or refuses to release him from detention notwit
hstanding the approval by the proper court of his bail bond may be held liable u
nder Art. 126 if the Revised Penal Code for delaying release. Section 20. Increa
se or reduction of bail The Court may, upon good cause, either increase or reduc
e the amount of the bail. If the accused does not give the increased amount of b
ail within a reasonable time will be committed to custody. NOTE: Where the offen
se is bailable, the mere probability that the accused will escape or if he had p
reviously escaped while under detention does not deprive him of his right to bai
l. The remedy is to increase the amount of bail, provided the amount is not exce
ssive. (Sy Guan v. Amparo, 79 Phil 670) Section 21. Forfeiture of bail 1. When b
ail bond forfeited: only in instances where the presence of the accused is speci
fically required by the court or the Rules of Court and, despite due notice to t
he bondsmen to produce him before the court on a given date, the accused fails t
o appear in person as so required.
QuickTime and a decompressor 2. To justify TIFF (Uncompressed)from liability on a
bail exemption this picture. are needed to see bond or reduction thereof, two r
equisites must be satisfied: production or surrender of the person of the accuse
d within 30 days from notice of the order of the court to produce the body of th
e accused or giving reasons for its nonproduction
satisfactory explanations for the nonappearance of the accused when first requir
ed by the trial court to appear. Compliance with the first requisite without mee
ting the second requisite will not justify non-forfeiture of a bail bond or redu
ction of liability. Failure to PRODUCE the body of the principal or give a reaso
n for his nonproduction and EXPLAIN why the accused did not appear before the co
urt when first required to do so, the court shall render a judgment against the
bondsmen, jointly and severally for the amount of the bail. The period of 30 day
s cannot be shortened by the court but may be extended for good cause shown. Ord
er of Forfeiture vs. Order of Confiscation ORDER OF ORDER OF FORFEITURE CONFISCA
TION Conditional and Not independent of the interlocutory. It is not order of fo
rfeiture. It is a appealable judgment ultimately determining the liability of th
e surety thereunder and therefore final. Execution may issue at once. Section 22
. Cancellation of bail BAIL IS CANCELLED: 1. Upon application of the bondsmen wi
th due notice to the prosecutor, upon surrender of the accused or proof of his d
eath; 2. Upon acquittal of the accused; 3. Upon dismissal of the case; or 4. Exe
cution of judgment of conviction. Without prejudice to any liability on the bail
. Section 23. Arrest of accused out on bail The bondsmen who put the bail bond f
or the accused become the jailers and they or the police officer to whom authori
ty is endorsed may arrest the accused for the purpose of surrendering him to the
court. The accused cannot leave the country without the permission of the bonds
men and the court. HOW SURETIES MAY BE RELIEVED FROM RESPONSIBILITY OVER THE ACC
USED: 1. Arrest the principal and deliver him to the proper authorities.
Page 199 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


2. They may cause the arrest of the accused to be made by any police officer or
other person of suitable age or discretion. 3. By endorsing the authority to arr
est upon a certified copy of the undertaking and delivering it to such officer o
r person. An accused released on bail may be re-arrested without the necessity o
f a warrant if he attempts to depart from the Philippines without permission of
the court where the case is pending. HOLD-DEPARTURE ORDERS Supreme Court Circula
r No. 39-97 dated June 19, 1997 limits the authority to issue hold departure ord
ers to the RTCs in criminal cases within their exclusive jurisdiction. Consequen
tly, MTC judges have no authority to issue hold-departure orders, following the
maxim, express mention implies the exclusion. Neither does he have authority to
cancel one which he issued. Section 24. No bail after final judgment; exception
GENERAL RULE: No bail shall be allowed after the judgment has become final, as w
hat is left is for him to serve the sentence. EXCEPTION: When he has applied for
probation before commencing to serve sentence, the penalty and the offense bein
g within the purview of the Probation Law. The application for probation must be
filed within the period of perfecting an appeal. Such filing operates as a waiv
er of the right to appeal. EXCEPTION TO THE EXCEPTION: The accused shall not be
allowed to be released on bail after he has commenced to serve his sentence. Sec
tion 25. Court supervision of detainees The court shall exercise supervision ove
r all persons in custody for the purpose of eliminating unnecessary detention. T
he executive judges of RTCs shall conduct monthly personal inspections of provin
cial, QuickTime and a city or municipal TIFF (Uncompressed) this picture. jails a
nd see decompressor the prisoners within their are needed to respective jurisdic
tions. Section 26. Bail is not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation AN APPLICATION FOR ADMISSION TO BAIL SHALL
NOT BAR THE ACCUSED FROM: 1. Challenging the validity of his arrest; or 2. The l
egality of the warrant issued therefore; or 3. From assailing the regularity or
questioning the absence of a preliminary investigation of the charge against him
. Provided that the accused raises them before entering his plea. The court shal
l observe the matter as early as practicable, but not later than the start of th
e trial of the case.
RULE 115 RIGHTS OF ACCUSED The rule enumerates the rights of a person accused of
an offense, which are both constitutional as well as statutory, save the right
to appeal which is purely statutory in character DUE PROCESS 1. Substantive cons
iders the intrinsic validity of the law 2. Procedural based on the principle tha
t a court hears before it condemns. Requirement of notice and hearing. Section 1
. Rights of accused at trial A. TO BE PRESUMED INNOCENT In all criminal prosecut
ions, the accused is presumed innocent until the contrary is proved beyond reaso
nable doubt. The conviction should be based on the strength of the prosecution a
nd not on the weakness of the defense, an accusation is not synonymous with guil
t. REASONABLE DOUBT It is the doubt engendered by an investigation of the whole
proof and inability, after such investigation, to let the mind rest easy upon th
e certainty of guilt. Absolute certainty of guilt is not demanded by the law to
convict of any criminal charge but moral certainty is required as to every propo
sition of proof requisite to constitute the offense. REASON: the slightest possi
bility of an innocent man being convicted for an offense he has not committed fo
r an offense he has not committed would be far more dreaded than letting a guilt
y person go unpunished or for a crime he may have perpetrated. EQUIPOSE RULE
Page 200 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


where the evidence of the parties in a criminal case are evenly balanced, the co
nstitutional presumption of innocence should tilt in favor of the accused who mu
st be acquitted. EXCEPTIONS INNOCENCE TO THE PRESUMPTION OF 1. During arraignmen
t (Sec. 1b, Rule 116) 2. Promulgation of judgment EXCEPT when the conviction is
for a light offense, in which case, it may be pronounced in the presence of his
counsel or representative. 3. when ordered by the court for purposes of identifi
cation Not applicable in the SC and CA The law securing to an accused person the
right to be present at every stage at the proceedings has no application to the
proceedings before the CA and the SC nor to the entry and promulgation of the j
udgments. The defendant need not be present during the hearing of the appeal. (S
ec. 9, Rule 124) Aquino, Jr. v. Military Commission, 63 SCRA 546 (1975) The accu
sed may waive his right to be present during the trial. However, his presence ma
y be compelled when he is to be identified. EFFECTS OF WAIVER OF THE RIGHT TO AP
PEAR BY THE ACCUSED 1. waiver of the right to present evidence 2. prosecution ca
n present evidence if the accused fails to appear 3. the court can decide withou
t the evidence of the accused Trial in Absencia It is important to state that th
e provision of the Constitution authorizing the trial in absentia of the accused
in case of his non-appearance AFTER ARRAIGNMENT despite due notice simply means
that he thereby waives his right to meet the witnesses face to face, among othe
rs. Such waiver of a right of the accused does not mean a release of the accused
from his obligation under bond to appear in court when so required. The accused
may waive his right but not his duty or obligation to the court. REQUIREMENTS F
OR TRIAL IN ABSENTIA 1. accused has been arraigned 2. he has been duly notified
of the trial 3. his failure to appear is unjustified Gimenez v. Nazareno, 160 SC
RA 1 (1988) an escapee who has been duly tried in absentia waives his right to p
resent evidence on his own behalf and to confront and cross-examine witnesses th
at have testified against him.
People v. Mingoa, 92 Phil 856 (1953) The legislature may enact that when certain
facts have been proved, they shall be prima facie evidence of the existence of
guilt of the accused and shift the burden of proof provided there be a rational
connection between the facts proved and the ultimate fact presumed so that the i
nference of the one from proof of the other is not unreasonable and arbitrary ex
perience. In cases of self defense, the person who invokes self defense is presu
med guilty. In this case a REVERSE TRIAL will be held. B. TO BE INFORMED OF THE
NATURE AND THE CAUSE OF THE ACCUSATION AGAINST HIM The right requires that the i
nformation should state the facts and the circumstances constituting the crime c
harged in such a way that a person of common understanding may easily comprehend
and be informed of what it is about. People v. Ortega, 276 SCRA 166 (2003) An a
ccused may not be convicted of an offense unless it is clearly charged in the co
mplaint or information. To convict him of an offense other than that charged in
the complaint or information would be a violation of this constitutional right.
When a person is charged in a complaint with a crime and the evidence does not s
how that he is guilty thereof, but does show that he is guilty of some other cri
me or a lesser offense, the court may sentence him for the lesser offense, PROVI
DED that the lesser offense is a cognate offense and is included in the complain
t filed in court. The qualifying or aggravating circumstances must be ALLEGED an
d PROVED in order to be considered by the court. C. TO BE PRESENT AND DEFEND IN
PERSON AND BY COUSEL AT EVERY STAGE OF THE PROCEEDING PRESENCE OF THE ACCUSED IS
REQUIRED
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.
Page 201 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


D. RIGHT TO COUNSEL Importance: Without the aid of counsel, a person may be conv
icted, not because he is guilty but because he does not know how to establish hi
s innocence. The right covers the period beginning from the custodial investigat
ion, well into the rendition of the judgment and even on appeal. (People v. Serz
o, Jr. 274 SCRA 553) the right to counsel can be invoked at any stage of the pro
ceedings, even on appeal CUSTODIAL INVESTIGATION It is the questioning by law en
forcement officers of a SUSPECT taken into custody or otherwise deprived of his
freedom of action in a significant way. it includes the practice of issuing an in
vitation to a person who is investigated in connection with an offense he is susp
ected to have committed. (RA 7437) People v. Morial, 363 SCRA 96 (2001) If durin
g the investigation the assisting lawyer leaves, comes and goes, the statement s
igned by the accused is still inadmissible because the lawyer should assist his
client from the time the confessant answers the first question asked by the inve
stigating officer until the signing of the extrajudicial confession. The right t
o counsel and the right to remain silent do not cease even after a criminal comp
laint/information has already been filed against the accused AS LONG AS he is st
ill in custody. The duty of the court to appoint a counsel de oficio when the ac
cused has no legal counsel of choice and a desire to employ one is MANDATORY onl
y at the time of ARRAIGNMENT (sec. 6, Rule 116) DIFFERENCE BETWEEN THE RIGHT TO
COUNSEL DURING CUSTODIAL INVESTIGATION ANF DURING THE TRIAL A. During trial the
right to counsel means EFFECTIVE counsel. Counsel is here not to prevent the acc
used from a confessing but to QuickTime and TIFF (Uncompressed) decompressor are
needed to defend the accused. see this picture. B. Custodial Investigation stric
ter requirement, it requires the presence of competent and independent counsel w
ho is preferably the choice of the accused. Since a custodial investigation is n
ot done in public there is a danger that confessions can be exacted against the
will of the accused. The right to counsel is NOT ABSOLUTE, it subject to being e
xercised within a reasonable time and manner (Laranaga v. CA, 281 SCRA 254) he c
annot insist on one that he cannot afford, one who is not a member of the bar an
d one who declines for a valid reason such as conflict of interest. (People v. S
ervo, 274 SCRA 553) Waiver of Right to Counsel This is when the accused voluntar
ily submits himself to the jurisdiction of the court and proceeds with his defen
se. Jurisprudence provides that the defendant cannot raise the question of his r
ight to have an attorney the first time on appeal. The accused may defend himsel
f in person only if the court is convinced that he can properly protect his righ
ts even without the assistance of counsel. US v. Escalante, 36 Phil. 743 (1917)
If the question is not raised in the trial court, the prosecution may go to tria
l. People v. Nang Kay, 88 Phil. 515 (1951) the question will not be considered i
n the appellate court for the first time when the accused fails to raise it in t
he lower court.. Delgado v. CA, 145 SCRA 357 (1986) The mistake of counsel will
bind his client. The only exception is when the counsel represents himself as a
lawyer and is not one because in that case the accused is denied of his right to
counsel and due process. E. TO TESTIFY AS A WITNESS IN HIS OWN BEHALF People v.
Santiago, 46 Phil 734 (1922) A denial of the defendants right to testify on his
own behalf would constitute an unjustifiable violation of his constitutional rig
ht. If the accused testifies, he may be cross-examined ONLY on matters covered b
y his direct examination, unlike an ordinary witness who can be crossexamined as
to any matter stated in the direct examination or connected therewith (Section
6, Rule 132). His failure to testify will not be taken against him but his failu
re to present evidence in his behalf shall be taken against him (US v. Bay, 97 S
CRA 495).
Page 202 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


The testimony of an accused who testifies on his own behalf but refuses to be cr
oss examined will not be given weight and will have no probative value because t
he prosecution will not be able to test its credibility. F. RIGHT AGAINST SELF-I
NCRIMINATION The scope of this right covers only testimonial compulsion only and
not the compulsion to produce real and physical evidence using the body of the
accused. DNA TESTING is not covered in the right against self-incrimination RATI
ONALE FOR PROTECTING THE RIGHT AGAINST SELF INCRIMINATION: 1. humanitarian reaso
ns, to prevent the state from using its coercive powers. 2. practical reasons- t
he accused is more likely to commit perjury. The accused in protected under this
rule from questions that tend to incriminate him, which means those that may su
bject him to penal liability. The right may be waived by the failure of the accu
sed to invoke the privilege at the proper time, that is AFTER the incriminating
question is asked and BEFORE his answer. The privilege of the accused to be exem
pt from testifying as a witness, involves a prohibition against testimonial comp
ulsion only and the production by the accused of incriminating documents and art
icles demanded off him. (US v. Tan Teng, 23 Phil, 145) EXCEPTIONS: immunity stat
utes such as: 1. RA 1379 (Forfeiture of illegally obtained wealth) 2. RA 749 Bri
bery and Graft cases RIGHT OF THE ACCUSED V. RIGHT OF AN ORDINARY WITNESS The or
dinary witness may be compelled to take the witness stand and claim the privileg
e as each and QuickTime and a TIFF (Uncompressed) decompressor every incriminatin
g are needed to see this picture. at him while an question is thrown accused may
refuse to take the witness stand and refuse to answer any and all questions. Th
e accused may also refuse to answer on his past criminality only if he can still
be prosecuted for it. However, if the accused testifies in his own behalf, then
he may be cross-examined as any other witness. He may NOT on cross examination
refuse to answer any question on the ground that the answer he will give or the
evidence that he will produce would have the tendency to incriminate him for the
crime that he was charged. But he MAY refuse to answer any question incriminati
ng him for an offense distinct from that for which he is charged. RIGHTS OF THE
ACCUSED IN THE MATTER OF TESTIFYING OF PRODUCING EVIDENCE Before the case: 1. Ri
ght to be informed 2. Right to remain silent and to counsel 3. right not to be s
ubjected to force or violence or any other means which vitiate free will 4. righ
t to have the evidence obtained in violation of these rights rejected After the
case is filed in court: 1. right to refuse to be a witness 2. right to not have
any prejudice whatsoever result to him by such refusal 3. the right to testify o
n his own behalf subject to cross-examination by the prosecution 4. while testif
ying the right to refuse a specific question which tends to incriminate him for
some other crime. USE IMMUNITY Witness compelled testimony and the fruits thereof
cannot be used in subsequent prosecution of a crime against him Witness can sti
ll be prosecuted but the compelled testimony cannot be used against him. TRANSAC
TIONAL IMMUNITY Witness immune from prosecution of a crime to which his compelle
d testimony relates.
witness cannot be prosecuted at all
Effect of Refusal of Accused to Testify GENERAL RULE: Silence should not prejudi
ce the accused. EXCEPTION: Unfavorable inference is drawn when: 1. the prosecuti
on has already established a prima facie case, the accused must present proof to
overturn the evidence 2. the defense of the accused is an alibi and he does not
testify, the interference is that the alibi is not believable. G. RIGHT TO CONF
RONT AND CROSS EXAMINE WITNESSES AGAINST HIM AT TRIAL (RIGHT OF CONFRONTATION)
Page 203 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


CONFRONTATION It is the act of setting a witness face to face with the accused s
o that the latter may make any objection he has to the witness, and the witness
may identify the accused, and this must take place in the presence of the court
having jurisdiction to permit the privilege of cross examination. The main purpo
se of this right to confrontation is to secure the opportunity of cross examinat
ion and the second purpose is to enable the judge to observe the demeanor of the
witness. By way of exception to this rule, it is provided that the court may ut
ilize as part of its evidence the testimony of a witness who is deceased, out of
or with due diligence cannot be found in the Philippines, unavailable or otherw
ise unable to testify, given in another proceeding, judicial or administrative,
involving the same parties and subject matter, the adverse party having had the
opportunity to crossexamine him. (Rule 130, Sec 47) In any criminal proceeding,
the defendant enjoys the right to have compulsory process to secure the attendan
ce of witnesses and the production of evidence on his behalf. WAIVER OF RIGHT TO
CONFRONTATION a. May be done expressly or impliedly. b. It is implied when the
accused waives his right to be present at trial or when he was given the opportu
nity but fails to take advantage of it. H. RIGHT TO COMPULSORY PROCESS This is t
he right of the accused to have a subpoena and/or a subpoena duces tecum issued
in his behalf in order to compel the attendance of witnesses and the production
of other evidence. If a witness refuses to testify when required is in contempt
of court. The court may order a witness to give bail or to be arrested. I. RIGHT
TO A SPEEDY,and a IMPARTIAL QuickTime TIFF (Uncompressed) decompressor PUBLIC TR
IAL are needed to see this picture. AND Impartial Trial Due process requires a h
earing before an impartial and disinterested tribunal and that every litigant is
entitled to nothing less that the cold neutrality of an impartial judge. (Mateo
, Jr. v. VIllaluz, 50 SCRA 180) Like Caesars wife, a judge must not be only pure b
ut beyond suspicion. (Palang v. Zosa, 58 SCRA 776) Public Trial One held open or
publicly; anyone interested in observing the way the judge conducts his proceedi
ngs in a courtroom may do so (Garcia v. Domingo, 52 SCRA 143) it is sufficient t
hat relatives and friends who want to watch the proceedings are given the opport
unity to witness the proceedings. It is done in public to prevent abuses that ma
y be committed by the court and the accused is entitled to moral support from hi
s friends and relatives. If it is done in the judges chambers, it is still valid
because 2. reason for the delay 3. the accuseds assertion or non assertion of th
e right 4. prejudice to the accused resulting from the delay. Rules on Speedy Tr
ial The limitation of this right is that the State must not be deprived of its d
ay in court and the right of the State and the prosecution of due process must b
e respected. There is NO violation of the right where the delay is imputable to
the accused. (Solis v. Agloro, 64 SCRA 370) The right to a speedy trial is viola
ted when there are UNJUSTIFIED postponements (People v. Declaro, 170 SCRA 143) R
EMEDIES AVAILABLE TO THE ACCUSED WHEN HIS RIGHT TO A SPEEDY TRIAL IS VIOLATED 1.
He should ask for the trial of the case, not the dismissal. 2. Unreasonable del
ay of the trial of a criminal case as to make the detention of the defendant ill
egal gives ground for habeas corpus as a remedy for obtaining release as to avoi
d detention for a reasonable period of time. 3. Accused would be entitled to rel
ief in a mandamus proceeding to compel the dismissal of the information. 4. ask
for the trial of the case and then move to dismiss (Gandicela v. Lutero, 88 Phil
. 790)
The right to a speedy trial is intended to avoid oppression and to prevent delay
by imposing on the courts and on the prosecution an obligation to proceed with
reasonable dispatch. FACTS CONSIDERED TO DETERMINE IF RIGHT TO SPEEDY TRIAL HAS
BEEN VIOLATED 1. length of the delay
Page 204 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


the public is not excluded. (Garcia v. Domingo, 52 SCRA 143) EXCLUSION OF THE PU
BLIC IS VALID WHEN: 1. evidence to be produced is offensive to decency or public
morals 2. upon motion of the accused (Section 21, Rule 119) Rule on Trial by Pu
blicity The right of the accused to a fair trial is NOT incompatible to free pre
ss. Pervasive publicity is no per se as prejudicial to the right to a fair trial
. To warrant the finding of prejudicial publicity, there must be allegations and
proof that judges have been unduly influenced, not simply that they might be du
e to the barrage of publicity. (People v. Teehankee, 249 SCRA 54) J. RIGHT TO AP
PEAL ON ALL CASES ALLOWED BY LAW AND IN THE MANNER PRESCRIBED BY LAW The right t
o appeal from a judgment of the conviction is fundamentally of statutory origin.
It is not a matter of absolute right that is independent of constitutional or s
tatutory provisions allowing such appeal. Waiver of Right to Appeal The right to
appeal is personal to the accused and it may be waved either expressly or by im
plication. HOWEVER, where the death penalty is imposed, such right cannot be wai
ved as the review of the judgment by the SUPREME COURT is automatic and mandator
y (A.M. No. 00-5-03 SC) Ozaeta v. CA, 179 SCRA 800 (1989) Anyone who seeks to ex
ercise the right to appeal must comply with the requirements of the rules. Other
wise the right to appeal is lost People v. Ang Gioc, 74 Phil. 366 (1941) When th
e accused flees, after the case has bee submitted to court for decision, he will
be deemed to have waived his right to appeal from the judgment rendered against
TIFF (Uncompressed) decompressor him QuickTime and a
are needed to see this picture.
1. 2. 3. 4.
plea bargaining stipulation of facts marking and identification of evidence waiv
er of objections to admissibility of evidence 5. such other matters as will prom
ote a fair and expeditious trial Time Limit for Trial in Criminal Cases Shall no
t exceed 180 days from the first day of trial, however the rule is not absolute.
The EXCEPTIONS: 1. those governed by the Rules on Summary Procedure 2. where th
e penalty prescribed by law does NOT exceed 6 months imprisonment or a fine of P
1,000 or both 3. those authorized by the Chief Justice of the SC Period of Arrai
gnment of Accused Within 30 days from the filing of the information, or from the
date the accused appealed before the justice/judge/court in which the charge is
pending, whichever date last occurs. When Shall Trial Commence After Arraignmen
t Within 30 days from arraignment, HOWEVER, it may be extended BUT only: 1. for
the 180 days for the first 12 calendar month period from the effectivity of the
law 2. 120 days for the second 12 month period 3. 80 days for the third 12 month
period
RULE 116 ARRAIGNMENT AND PLEA ARRAIGNMENT It means for bringing the accused into
court and informing him of the nature and cause of the accusation against him.
Section 1. Arraignment and plea; how made HOW ARRAIGNMENT IS MADE: 1. in open co
urt where the complaint or information has been filed or assigned for trial 2. b
y the judge or clerk of court 3. by furnishing the accused with a copy of the co
mplaint or information 4. reading it in a language or dialect known to the accus
ed 5. asking accused whether he pleads guilty or not guilty When Arraignment Sho
uld be Held
Page 205 of 289
NOTE: such may no be reviewed by the CA. THE SPEEDY TRIAL ACT OF 1998 (RA 8493)
DUTY OF THE COURT AFTER THE ARRAIGNMENT OF THE ACCUSED The court SHALL order a p
re-trial conference to consider the following:

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Accused should be arraigned within 30 days from the date the court acquires juri
sdiction over his person, unless a shorter period is provided for by law. The ti
me of the pendency of a motion to quash or a bill of particulars or other causes
justifying suspension of arraignment shall be excluded in computing the period.
WHEN ARRAIGNMENT IS HELD WITHIN A SHORTER PERIOD: 1. When an accused is under p
reventive detention, his case should be raffled within 3 days from filing and ac
cused shall be arraigned within 10 days from receipt by the judge of the records
of the case (RA 8493 Speedy Trial Act) 2. where the complainant is about to dep
art from the Philippines with no definite date of return, the accused should be
arraigned without delay (RA 4908) 3. Cases under RA 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from arraignment 4. Cases under the Dange
rous Drugs Act 5. Cases under SC AO 104-96, i.e., heinous crimes, violations of
the Intellectual Property Rights Law, these cases must be tried continuously unt
il terminated within 60 days from commencement of the trial and to be decided wi
thin 30 days from the submission of the case Notes on Arraignment: Trial in abse
ntia may be conducted only after valid arraignment Accused must personally appea
r during arraignment and enter his plea (counsel cannot enter plea for accused)
Accused is presumed to have been validly arraigned in the absence of proof to th
e contrary Generally, judgment is void if accused has not been validly arraigned
If accused went into trial without being arraigned, subsequent arraignment will
cure the error provided that thea accused was able QuickTime and TIFF (Uncompres
sed) decompressor are needed to this picture. to present evidenceseeand cross-ex
amine the witnesses of the prosecution during trial. WHEN A PLEA OF NOT GUILTY SHO
ULD BE ENTERED: 1. When accused so pleaded 2. When he refuses to plead 3. When h
e makes a conditional or qualified plea of guilt (Ex. Accused pleads guilty but
adds pero hindi ko sinasadya) 4. When the plea is indefinite or ambiguous 5. When
he pleads guilty but presents exculpatory evidence (ex. Evidence to prove comple
te self-defense) NOTE: if the accused who pleaded guilty presents exculpatory ev
idence, his plea of guilty is withdrawn. The judge must order the accused to ple
ad again or at least direct that a new plea of not guilty be entered for him, othe
rwise there shall be no standing plea for the accused. This is significant becau
se if there is no standing plea, the accused cannot invoke double jeopardy later
on. Presence of Offended Party The private offended party is required to appear
in the arraignment for the purpose of plea bargaining, determination of civil l
iability and other matters requiring his presence. In case the offended party fa
ils to appear despite due notice, the trial court may allow the accused to plead
guilty to a lesser offense necessarily included in the offense charged with the
conformity of the trial prosecutor alone. Section 2. Plea of guilty to a lesser
offense PLEA BARGAINING It is process whereby the accused, the offended party a
nd the prosecution work out a mutually satisfactory disposition of the case subj
ect to the courts approval. it usually involves the defendants pleading guilty to
a lesser offense or to only one or some of the counts of a multi-count indictmen
t in return for a lighter sentence than that for the graver charge. It precludes
the filing and prosecution of the offense originally charged in the information
, except when the plea of guilty to a lesser offense is without the consent of t
he offended party and the prosecutor. Plea to Lesser Offense During Arraignment
During arraignment, the accused may enter a plea of guilty to a lesser offense P
ROVIDED there is consent of the offended party AND of the prosecutor to the plea
of guilty to a lesser offense that is necessarily included in the offense charg
ed. Plea to Lesser Offense After Arraignment but Before Trial After arraignment
but BEFORE trial, the accused may still be allowed to plead guilty to a lesser o
ffense after withdrawing his previous plea of not guilty. No
Page 206 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


amendment to the complaint or information is necessary. Plea to Lesser Offense A
fter Trial has Begun After the prosecution has rested its case, a change of plea
to a lesser offense may be granted by the judge, with the approval of the prose
cutor and the offended party if the prosecution does not have sufficient evidenc
e to establish the guilt of the accused for the crime charged. The judge cannot
on its own grant the change of plea. Presence and Consent of the Offended Party
The consent of the offended party is necessary before the accused may be allowed
to plead guilty to a lesser offense. If the plea of guilty to a lesser offense
is made without the consent of the prosecutor and the offended party, the convic
tion of the accused shall not be a bar to another prosecution for an offense whi
ch necessarily includes the offense charged in the former information (No double
jeopardy). If the offended party fails to appear during arraignment, the court
may allow the accused to plead guilty to a lesser offense with the conformity of
the trial prosecutor alone Section 3. Plea of guilty to capital offense; recept
ion of evidence IMPROVIDENT PLEA It is a plea without information as to all the
circumstances affecting it; based upon a mistaken assumption or misleading infor
mation or advice. DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A CAPITAL OFFE
NSE: 1. Conduct a searching inquiry into the voluntariness and full comprehensio
n of the consequences of the plea 2. require prosecution to present evidence to
prove the guilt and precise degree of culpability of the accused 3. ask the accu
sed if he desires to present evidence in his behalf and allow him to do so if Qu
ickTime and a decompressor he desires TIFF (Uncompressed) this picture. are neede
d to see ELEMENTS OF SEARCHING INQUIRY 1. Judge must convince himself that accused
is entering the plea voluntarily and intelligently 2. Judge must convince himse
lf that there exists a rational bass for the finding of guilt based on accuseds t
estimony 3. Inform the accused of the exact length of imprisonment and the certa
inty that he will serve it in a national penitentiary Effects of Improvident Ple
a The conviction will be set aside if the plea of guilty is the sole basis for t
he judgment. However, the court may validly convict the accused if such convicti
on is supported by adequate evidence of guilt independent of the plea itself. Se
ction 4. Plea of guilty to non-capital offense; reception of evidence, discretio
nary Consequences of Plea of Guilty As a rule, a plea of guilty is an unqualifie
d admission of the crime and of the attending circumstances (aggravating and/or
qualifying) alleged in the complaint. Such plea removes the necessity of present
ing further evidence and for all intents and purposes the case is deemed tried o
n its merits and submitted for decision. However, the court may, upon motion, al
low the presentation of evidence to prove aggravating and mitigating circumstanc
es. The trial court may allow an accused to plead guilty and at the same time al
low him to prove other mitigating circumstances. However, if what the accused wo
uld prove is an exempting circumstance, which would amount to a withdrawal of hi
s plea of not guilty. If the accused is permitted to present evidence after his
plea of guilty to a non-capital offense and such shows that the accused is not g
uilty of the crime charged, the accused must be acquitted, for there is no rule
which provides that simply because the accused pleaded guilty to the charge that
his conviction automatically follows. Additional evidence independent of the pl
ea may be considered to convince the judge that it was intelligently made. For n
on-capital offenses, the reception of evidence is merely discretionary on the pa
rt of the court. If the information or complaint is sufficient for the judge to
render judgment on a non-capital offense, he may do so. But if the case involves
a capital offense, the reception of evidence to prove the guilt and degree of c
ulpability of the accused is mandatory. Section 5. Withdrawal of improvident ple
a of guilty INSTANCES OF IMPROVIDENT PLEA:
Page 207 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


1. Plea of guilty was compelled by violence or intimidation 2. Accused did not f
ully understand the meaning and consequences of his plea 3. Insufficient informa
tion to sustain conviction of the offense charged 4. Information does not charge
an offense 5. Court has no jurisdiction When Improvident Plea may be Withdrawn
At any time before judgment of conviction becomes final, the court may permit an
d improvident plea of guilty to be withdrawn and be substituted by a plea of not
guilty People vs Lambino, 103 Phil 504 (1958) The withdrawal of a plea of guilt
y is not a matter of right to the accused but of sound discretion to the trial c
ourt. The reason for this is that trial has already begun and the withdrawal of
the plea will change the theory of the case and put all past proceedings to wast
e. Moreover, at this point, there is a presumption that the plea was made volunt
arily. Section 6. Duty of court to inform accused of his right to counsel 4-FOLD
DUTY OF COURT WHEN ACCUSED APPEARS WITHOUT COUNSEL: 1. Inform the defendant tha
t he has a right to an attorney before being arraigned 2. After informing him, c
ourt must ask the defendant if he desires to have the aid of an attorney 3. If h
e desires but is unable to employ one, the court must assign an attorney de ofic
io to defend him 4. If the accused desires to procure an attorney of his own, th
e court must grant him reasonable time to do so Failure to comply with this 4-fo
ld duty amounts to a violation due process
QuickTime and a Section 7. Appointment of counsel de oficio TIFF (Uncompressed) d
ecompressor are needed to see this picture.
2. In localities where such members of the bar are not available, any resident o
f the province of good repute for probity and ability. Duty of the Court to Appo
int Counsel During Arraignment vs During Trial During arraignment, the court has
an affirmative duty to inform the accused of his right to counsel and to provid
e him with one in case he cannot afford it. The court must act on its own voliti
on unless the right is waived by the accused. During trial, it is the accused wh
o must assert his right to counsel. The court will not act unless the accused in
vokes his rights. Section 8. Time for counsel de oficio to prepare for arraignme
nt What Constitutes Reasonable Time It depends on the circumstances surrounding th
e case such as the gravity of the offense, complexity of the allegations, whethe
r a motion to quash or a bill of particulars has to be filed, etc. Generally, re
asonable time to prepare for trial is 215 days Generally, reasonably time to arr
aignment is 30 mins to 1 hour prepare for
NOTE: Counsel for the accused must expressly demand the right to be given reason
able time to consult with the accused. Only when so demanded does denial thereof
constitute reversible error and a ground for new trial. Section 9. Bill of Part
iculars Rules for Bill of Particulars Accused must move for a bill of particular
s BEFORE arraignment to enable him to properly plead and prepare for trial, othe
rwise it is deemed waived. The motion for bill of particulars must contain (1) t
he alleged defects in the complaint or information and (2) details desired. Rule
12 on Bill of Particulars applies by analogy to Bill of Particulars as provided
in Sec. 9 of Rule 116. The remedy against an information that fails to allege t
he time of the commission of the crime with sufficient definiteness is a bill of
particulars, not a motion to quash.
COUNSEL DE OFICIO He is counsel appointed by the court to represent and defend t
he accused in case he cannot afford to employ one himself WHO MAY BE APPOINTED C
OUNSEL DE OFICIO: 1. Such members of the bar in good standing who can competentl
y defend the accused
Page 208 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


IT IS NOT THE OFFICE OF THE BILL OF PARTICULARS TO: a. Supply material allegatio
n necessary to the validity of a pleading b. Change a cause of action or defense
stated in the pleading, or to state a cause of action or defense other than the
one stated. c. Set forth the pleaders theory of his cause of action or a rule of
evidence on which he intends to rely. d. Furnish evidentiary information whethe
r such information consists of evidence which the pleader proposes to introduce
or of facts which constitute a defense or offset for the other party or which wi
ll enable the opposite party to establish an affirmative defense not yet pleaded
. The filing of a motion for bill of particulars suspends the period to file a r
esponsive pleading. If the motion is granted, the moving party has the remaining
period or at least 5 days to file his answer from service of the bill of partic
ulars. If the motion is denied, he has the same period to file his responsive pl
eading from receipt of the order denying the motion. Section 10. Production or i
nspection of material evidence in possession of prosecution Right to Modes of Di
scovery Right of the accused to move for the production of material evidence in
the possession of the prosecution. It authorizes the defense to inspect, copy or
photograph any evidence of the prosecution in its possession after obtaining pe
rmission of the court. The purpose of such right is to prevent surprises to the
accused and the suppression or alteration of evidence. Such right is available e
ven during preliminary investigation when such is necessary to protect the Quick
Time and a TIFF (Uncompressed) decompressor constitutional right are needed tolib
erty and property of the to life, see this picture. accused. Section 11. Suspens
ion of arraignment GROUNDS FOR SUSPENSION 1. There exists a prejudicial question
2. Accused appears to be suffering from an unsound mental condition which rende
rs him unable to understand the charge against him and to plead intelligently th
ereto. 3. There is a petition for review pending before the DOJ or Office of the
President, however the period of suspension shall not exceed 60 days counted fr
om the filing of the petition for review.
RULE 117 MOTION TO QUASH Section 1. Time to move to quash QUASHAL VS. NOLLE PROS
EQUI: The quashal of the complaint or information is different from a nolle pros
equi, although both have one result, which is the dismissal of the case. A nolle
prosequi is initiated by the prosecutor while a quashal of information is upon
motion to quash filed by the accused. A nolle prosequi is a dismissal of the cri
minal case by the government before the accused is placed on trial and before he
is called to plead, with the approval of the court in the exercise of its judic
ial discretion. It partakes of the nature of a nonuser or discontinuance in a ci
vil suit and leaves the matter in the same condition in which it was before the
commencement of the prosecution. It is not an acquittal; it is not a final dispo
sition of the case; and it does not bar a subsequent prosecution for the same of
fense. Time to File Motion to Quash GENERAL RULE: A motion to quash (MTQ) may be
filed by the accused at any time before the accused enters his plea. Thereafter
, no MTQ can be entertained by the court. EXCEPTION: Under Sec. 9, Rule 117, whi
ch adopts the omnibus motion rule. This means that a MTQ may still be filed afte
r arraignment on the ground (1) that the facts alleged in the information charge
no offense, (2) that the court has no jurisdiction over the offense charged, (3
) that the offense or penalty has prescribed, or (4) that the doctrine of double
jeopardy precludes the filing of the information. Right to File MTQ Belongs Onl
y to the Accused. There is nothing in the rules which authorizes the court or ju
dge to motu proprio initiate a MTQ by
Page 209 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


issuing an order requiring why the information may not be quashed on the ground
stated in said order. Section 2. Form and contents REQUIRED FORM OF MTQ 1. It mu
st be in writing 2. It must be signed by the accused OR his counsel 3. It must s
pecify the factual and legal grounds on which it is based. NOTE: Generally, the
court cannot consider any other ground other than those specifically stated in t
he motion to quash, EXCEPT when the ground for quashal is lack of jurisdiction o
ver the offense charged. If this is the ground for dismissing the case, it need
not be alleged in the MTQ because it goes into the very competence of the court
to pass upon the case. Section 3. Grounds GROUNDS FOR MOTION TO QUASH 1. Facts c
harged do not constitute an offense 2. Court trying the case has no jurisdiction
over the offense charged 3. Court trying the case has no jurisdiction over the
person of the accused 4. Officer who filed the information had no authority to d
o so 5. Information does not conform substantially to the prescribed form 6. Tha
t more than one offense is charged (duplicitous information) 7. Criminal action
or liability has been extinguished 8. Information contains averments which, if t
rue, would constitute a legal excuse or justification 9. double jeopardy NOTE: t
he grounds enumerated in this section are the EXCLUSIVE grounds for a MTQ. Facts
Alleged Do Not Constitute an Offense QuickTime and a TIFF (Uncompressed) decompr
essor The test to determine if the facts charged constitute are needed to see th
is picture. an offense is to determine WON all the essential elements of the cri
me have been alleged. The trial court should limit its inquiry to: the averments
in the information (these are deemed hypothetically admitted); facts admitted b
y the prosecution; and Indubitable facts. Legal Excuse or Justification The term
legal excuse or justification only includes exempting circumstances and NOT justi
fying circumstances. Justifying circumstances such as selfdefense or defense of
a stranger is a matter of defense that must be proven in trial. HOW CRIMINAL LIA
BILITY IS EXTINGUISHED 1. Death of the accused, but as to pecuniary penalties, l
iability therefor is extinguished only if death occurs before final judgment 2.
Amnesty 3. Marriage of the offended woman, as stated in Art 344 of the RPC 4. Pr
escription of the crime 5. Service of sentence 6. Absolute pardon 7. Prescriptio
n of penalty HOW CRIMINAL LIABILITY IS PARTIALLY EXTINGUISHED 1. Conditional par
don 2. Commutation of sentence 3. Allowances earned for good conduct while servi
ng sentence AMNESTY Given for political crimes Given to a class of persons Needs
concurrence of Congress Beneficiary need not PARDON Given for common crimes Giv
en to an individual Concurrence of congress not needed Distinct acts of
Page 210 of 289
The fact that the allegations in the complaint or information are vague or broad
, is not generally a ground for a motion to quash, the remedy being to file a mo
tion for bill of particulars. Lack of Jurisdiction over the Person The inclusion
of other grounds other than lack of jurisdiction over the person of the accused
in an MTQ does not amount to voluntary submission or a waiver of such ground. O
fficer Filing the Information Had No Authority The prosecutor who signed the inf
ormation must have territorial jurisdiction to conduct the preliminary investiga
tion of the offense, otherwise the information filed by him would be invalid and
can be quashed on such ground Lack of authority of the officer is not cured by
silence, acquiescence or express consent or even by amendment

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


accept (but must admit to being a part of the class granted amnesty) Courts take
judicial notice of amnesty (need not be proved in court or may be proven even i
f not alleged) Abolishes the offense (looks backward) Granted before or after pr
osecution acceptance needed if pardon is conditional Courts do not take judicial
notice of pardon (must be proved in court) Relieves the offender of liability (
looks forward) Granted only after conviction the prosecutor at least 3 days befo
re the hearing, the notice of hearing should be addressed to adverse counsel or
the prosecutor, and proof of service of the motion upon the adverse party or pro
secutor at least 3 days prior to such hearing. This is mandatory. Section 4. inf
ormation Amendment of complaint or
Rules on Prescription The period of prescription of violation of special laws or
offenses not penalized by the Revised Penal Code but by special laws, and munic
ipal ordinances is governed by Act No. 3326 which took effect on December 4, 192
6. Where an accused has been found to have committed a lesser offense includible
within the offense charged, he cannot be convicted of the lesser offense if it
has already prescribed. To hold otherwise would be to sanction the circumvention
of the law on prescription by the simple expedient of accusing the defendant of
the graver offense. The rule that if the last day falls on a Sunday or a holida
y, the act can still be done the following day does not apply to the computation
of the period of prescription of a crime, in which the rule is that if the last
day in the period of prescription of a felony falls on a Sunday or legal holida
y, the information concerning said felony cannot be filed on the next working da
y, as the offense has by then already prescribed. The period of a continuing cri
mes prescription is counted from the latest or last act constituting the series o
f acts continuing the single crime. The prescriptive period of offenses penalize
d by special laws and ordinances is interrupted only by the filing of complaint
or informationa in court. This is QuickTime and TIFF (Uncompressed) decompressor
without distinction are needed to see this picture. the cases are as to whether
covered by the Rule on Summary Procedure. The period of prescription does not ru
n when the offender is absent from the Philippines. Rule on Contentious Motions
Contentious motions in criminal cases must comply with the requirements that the
y be set for hearing at a specified date with prior notice to the adverse party
or
If the alleged defect in the complaint or information may be cured by amendment,
the court shall order the amendment instead of quashing the complaint or inform
ation. However, if the prosecution fails to amend the complaint or if after the
amendment the defect is still not cured, the MTQ shall be granted. A good tactic
al move would be to have the accused first plead to the information and thereaft
er file a motion to quash either before or after the prosecution has presented i
ts evidence. Pursuant to Sec. 9 of Rule 117, an accused, even after he has enter
ed his plea, may still move to quash the information on the ground that it does
not charge an offense. If the case is dismissed on such ground, the prosecution
may not be permitted to correct the information because the accused has already
pleaded and to allow such amendment may place the accused twice in jeopardy. Sec
tion 5. Effect of sustaining the motion to quash EFFECTS IF MOTION TO QUASH IS S
USTAINED: 1. If the ground for the motion is either: a. Facts charged do not con
stitute an offense b. Officer who filed the information had no authority to do s
o c. Information does not conform substantially to the prescribed form d. duplic
itous information The court may order that another information be filed or an am
endment thereof be made, as the case may be, within a definite period. If such o
rder is not made, or if having been made, another information is not filed withi
n the time specified in the order or within such time as the court may order, th
e accused, if in custody, shall be discharged therefrom, unless he is also in cu
stody on some other charge. 2. If the motion is based on the following grounds:
a. Criminal action or liability has been extinguished
Page 211 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


b. Information contains averments which, if true, would constitute a legal excus
e or justification c. double jeopardy The court must state, in the order grantin
g the motion, the release of the accused if he is in custody or the cancellation
of his bond if he is on bail. 3. If the ground for the MTQ was that the court h
as no jurisdiction over the offense, the better practice is to forward or remand
the case to the proper court, not to quash the complaint or information. PROCED
URE IF MOTION TO QUASH IS DENIED: 1. Accused should plead 2. Accused should go t
o trial without prejudice to the special defenses he invoked in the motion 3. Ap
peal from the judgment of conviction, if any, and interpose the denial of the mo
tion as an error. Remedy of Aggrieved Party An order granting a MTQ is appealabl
e, as the proper remedy. The accused would not be placed in double jeopardy beca
use the accused has not been arraigned yet. Newsweek Inc. vs IAC, 142 SCRA 443 (
1986) An order denying a MTQ is not appealable because such order is merely inte
rlocutory. However, if the court, in denying the MTQ, acts with grave abuse of d
iscretion, the certiorari or prohibition will lie. This rule does not preclude t
he aggrieved party from filing a special civil action of certiorari, as a substi
tute for the remedy of a lost appeal, where there is a patent, capricious and wh
imsical exercise of discretion by a trial judge or where an appeal will not prom
ptly relieve the aggrieved party from the injurious effect of the disputed order
, as in the quashal of an information for incomplete preliminary investigation.
QuickTime and a
TIFF (Uncompressed) decompressor are needed to see this picture.
1. Criminal action extinguished 2. double jeopardy
or
liability
has
been
Section 7. Former conviction or acquittal; double jeopardy KINDS OF DOUBLE JEOPA
RDY: 1. No person shall be put twice in jeopardy for the SAME OFFENSE 2. When an
act punished by a law and an ordinance, conviction or acquittal under either sh
all be a bar to another prosecution for the SAME ACT IDENTITY RULE There is iden
tity between two offenses not only when the second offense is exactly the same a
s the first, but also when the second offense is includes or is necessarily incl
uded in the first offense or is an attempt or frustration of thereof EXCEPTIONS
TO IDENTITY RULE: 1. The graver offense developed due to supervening facts arisi
ng out of the same act or omission constituting the former charge 2. The facts c
onstituting the graver offense became known or were discovered only after a plea
was entered in the former complaint or information. 3. the plea of guilty to a
lesser offense was made without the consent of the prosecutor and the offended p
arty REQUISITES TO RAISE DOUBLE JEOPARDY: 1. first jeopardy must have attached 2
. first jeopardy must have been terminated 3. the second jeopardy must be for th
e same offense or the second offense includes or is necessarily included in the
offense charged in the first information or is an attempt or frustration thereof
. REQUISITES FOR 1ST JEOPARDY TO ATTACH: 1. valid complaint or information 2. co
urt of competent jurisdiction 3. valid arraignment 4. valid plea 5. the defendan
t was acquitted, convicted, or the case was dismissed without his express consen
t or authority. NOTE: In order to raise double jeopardy for the SAME ACT, there
must be an acquittal or conviction. For double jeopardy for the SAME OFFENSE it
is
Section 6. Order sustaining the motion to quash not a bar to another prosecution
; exception GENERAL RULE: An order sustaining a MTQ is not a bar to another pros
ecution for the same offense EXCEPTIONS: When the ground for the MTQ is any of t

he following:
Page 212 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


sufficient that the case was dismissed without his express consent. Perez vs. CA
, 163 SCRA 236 (1988) If a single act is punished by two different laws, but eac
h requires proof of an additional fact which the other does not require, convict
ion or acquittal in one will not bar a prosecution for the other. Ex. Violation
of BP 22 and Estafa Double Jeopardy will not apply in case of a conviction of a
crime under a special law, which also constitutes an offense under the Revised P
enal Code. This is because the former is malum prohibitum, while the latter is m
ala in se. In order for double jeopardy to attach, the judgment must be reading
its entirety (promulgation of judgment). If only the dispositive portion is read
, then double jeopardy will not attach. Test for Valid Complaint or Information In
general, if it can support a valid conviction. This means that all the necessar
y elements of the crime are alleged What is controlling for purposes of determin
ing the presence of double jeopardy is the crime charged in the complaint not th
e crime proven in trial. DISMISSAL Does not decide the case on the merits, does
not determine defendants guilt or innocence Double Jeopardy will not always attac
h ACQUITTAL Always based on the merits. Defendant is acquitted bec. guilt wasnt p
roven beyond reasonable doubt Double Jeopardy always attaches An order dischargi
ng an accused as a state witness amounts to an acquittal, hence double jeopardy
will apply. However, if he fails or refuses to testify against his co-accused in
accordance with his sworn statement, he may be prosecuted again. Section 8. Pro
visional dismissal REQUISITES PROVISIONAL DISMISSAL: 1. consent of the prosecuto
r 2. consent of the accused 3. notice to the offended party NOTE: If a case is p
rovisionally dismissed, the failure to revive or reinstate the case within the p
eriods set by law will make the dismissal permanent. HOW TO REVIVE A CASE: 1. Re
filing of the information 2. Filing a new information for the same offense or on
e necessarily included in the original offense charged PERIODS FOR REINSTATEMENT
/REVIVAL: 1. 1 YEAR for offenses punishable imprisonment not exceeding 6 years 2
. 2 YEARS for offenses punishable imprisonment exceeding 6 years
by by
GENERAL RULE: When a case is reinstated there is no need to conduct a new prelim
inary investigation EXCEPTIONS: Original witnesses or some of them recant their
testimony, are no longer available (died) or when new witnesses have emerged Oth
er persons are charged under the new complaint Original charge has been upgraded
Criminal liability of the accused has been principal) upgraded (ex. accomplice
Section 9. Failure to move to quash or to allege any ground therefor ALL THE GRO
UNDS FOR A MTQ ARE DEEMED WAIVED IF NOT SEASONABLY RAISED, EXCEPT: 1. Facts char
ged do not constitute an offense 2. Court trying the case has no jurisdiction ov
er the offense charged 3. Criminal action or liability has been extinguished 4.
double jeopardy
Page 213 of 289
WHEN DISMISSAL = ACQUITTAL: 1. Demurrer to evidence 2. Dismissal due to violatio
n of right to speedy trial (even if dismissal was upon motion of the accused or
with his express consent) Rules Regarding Without Express Consent If dismissal was
upon motion of the accused or counsel, such is deemed to be with defendants expr
ess consent. Silence of the accused does not mean consent. Statement of no object
ion is express consent. Rules Regarding State Witnesses
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


this is in order to enforce the mandatory nature of pre-trial in criminal cases.
RULE 118 PRE-TRIAL Section 1. Pre-trial; mandatory in criminal cases Pre-trial
is MANDATORY in all criminal cases The court shall after arraignment and within
30 days from the time the court acquires jurisdiction over the person of the acc
used, unless a shorter period is provided for by law, order a pre-trial. Its mai
n objective is to achieve an expeditious resolution of the case. THINGS CONSIDER
ED DURING PRE-TRIAL: 1. plea bargaining 2. stipulation of facts 3. marking for i
dentification of evidence 4. waiver of objections to admissibility of evidence 5
. modification of the order of trial if the accused admits the charge but interp
oses a lawful defense (reverse trial) 6. other matters that will promote a fair
and expeditious trial of the civil and criminal aspects of the case Section 2. P
re-trial agreement REQUIRED FORM OF PRE-TRIAL AGREEMENT: 1. must be in writing 2
. signed by the accused 3. signed by counsel NOTE: If the required form is not o
bserved, the pretrial agreement cannot be used against the accused. This is cont
rary to the rule on stipulations of facts during trial which only requires the s
ignature of counsel in order to be valid. Purpose of the Rule The requirements i
n Section 2 are intended to further safeguard the rights QuickTime and a accused
against of the (Uncompressed) decompressor improvident or TIFF unauthorized agre
ements or are needed to see this picture. admissions which his counsel may have
entered into without his knowledge Section 3. Non-appearance at pre-trial confer
ence The court may impose proper penalties and sanctions for non-appearance duri
ng the pre-trial conference by the counsel for the accused or the prosecutor wit
hout acceptable cause. The reason for TRIAL It is the examination before a compe
tent tribunal according to the laws of the land, of the facts put in issue in a
case for the purpose of determining such issue HEARING It is not confined to tri
al but embraces the several stages of litigation, including the pre-trial stage.
Republic v. Sandiganbayan, 416 SCRA 133 (2003) A hearing does not necessarily i
mply the presentation of oral or documentary evidence in open court but that the
parties are afforded an opportunity to be heard. After a plea of guilty is ente
red, the accused shall have at least 15 days to prepare for trial. The trial sha
ll commence within 30 days from receipt of the pre-trial order The trial judge d
oes not lose jurisdiction to try the case after the 180-day limit. He may, howev
er, be penalized with disciplinary sanctions for failure to
Page 214 of 289
The sanctions may be in the form of reprimand, fine, or imprisonment. Inasmuch a
s this is similar to indirect contempt of court, the penalty for indirect contem
pt of court may be imposed. He court may only impose sanctions for nonappearance
on counsel or the prosecutor, not on the accused. The reason why the accused is
not required to appear is that to include him among the mandatory parties might
violate his constitutional right to remain silent. Section 4. Pre-trial order P
RE-TRIAL ORDER It is an order issued by the court reciting the actions taken, th
e facts stipulated and the evidence marked during the pre-trial conference. Such
order binds the parties and limits the trial to those matters not disposed of.
RULE 119 TRIAL Section 1. Time to prepare for trial

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


observe the prescribed limit without authorization by the Supreme Court. REQUISI
TES FOR TRIAL IN ABSENTIA: 1. The accused has been arraigned 2. He has been noti
fied of the trial 3. His failure to appear is unjustified People v. Agbulos, G.R
. No. 73907 (1993) The purpose of trial in absentia is to speed up the dispositi
on of criminal cases. Effects of trial in absentia: People v. Landicho, G.R. No.
119527 (1996) The accused waives the right to present evidence and cross-examin
e the witnesses against him The accuseds waiver does not mean, however, that the
prosecution is deprived of the right to require the presence of the accused for
purposes of identification by the witnesses which is vital for conviction of the
accused, except where he unqualifiedly admits in open court after his arraignme
nt that he is the person named as defendant in the case on trial. INSTANCES WHER
E THE PRESENCE OF THE ACCUSED IS REQUIRED BY LAW: 1. On arraignment; 2. On promu
lgation of judgment except for light offenses; 3. For identification purposes; 4
. When the court with due notice requires so. Section 2. Continuous trial until
terminated; postponements CONTINUOUS TRIAL SYSTEM Trial once commenced shall con
tinue from day to day as far as practicable until terminated; but it may be post
poned for a reasonable period of time for good cause Trial shall in no case exce
ed 180 days from the first day of trial, except as otherwise provided by the Qui
ckTime and a Supreme Court TIFF (Uncompressed) decompressor
are needed to see this picture.
proper
hearing, unless for meritorious reasons an extension is permitted. The non-appea
rance of the prosecution at the trial, despite due notice, justified a provision
al dismissal or an absolute dismissal depending upon the circumstances CASES WHE
RE TIME LIMITATION IS INAPPLICABLE: 1. Criminal cases covered by the Rule on Sum
mary Procedure or those where the penalty does not exceed 6 months imprisonment
or a fine of P1,000 as governed by the Rules on Summary Procedure 2. When the of
fended party is about to depart with no definite date of return 3. Child abuse c
ases 4. Violations of Dangerous Drugs Law 5. Kidnapping, robbing in a band, robb
ery against banking or financial institution, Violation of Carnapping Act and ot
her heinous crimes REQUISITES BEFORE A TRIAL CAN BE PUT ON ACCOUNT OF THE ABSENC
E OF WITNESS: 1. That the witness is material and appears to the court to be so;
2. that the party who applies has been guilty of no neglect; 3. that the witnes
ses can be had at the time to which the trial is deferred and incidentally that
no similar evidence could be obtained; 4. that an affidavit showing the existenc
e of the above circumstances must be filed. REMEDIES OF ACCUSED WHERE A PROSECUT
ING OFFICER WITHOUT GOOD CAUSE SECURES POSTPONEMENTS OF THE TRIAL OF A DEFENDANT
AGAINST HIS PROTEST BEYOND A REASONABLE PERIOD OF TIME: 1. Mandamus to compel 2
. if he is restrained of his liberty, by habeas corpus to obtain his freedom DUT
IES OF PRESIDING JUDGE UNDER THE CONTINUOUS TRIAL SYSTEM: 1. Adhere faithfully t
o the session hours prescribed by laws; 2. maintain full control of the proceedi
ngs; 3. efficiently allocate and use time and court resources to avoid court del
ays Section 3. Exclusions
The SC adopted the continuous trial system as a mode of judicial fact-finding an
d adjudication conducted with speed and dispatch so that trials are held on the
scheduled dates without postponement, the factual issues for trial well-defined
at pre-trial and the whole proceedings terminated and ready for judgment within
90 days from the date of initial
Page 215 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


EXCLUSIONS IN COMPUTATION OF TIME WITHIN WHICH TRIAL MUST COMMENCE: A. Any perio
d of delay resulting from other proceedings concerning the accused, including bu
t not limited to the following: 1. Delay resulting from an examination of the ph
ysical and mental condition of the accused; 2. Delay resulting from proceedings
with respect to other criminal charges against the accused; 3. Delay resulting f
rom extraordinary remedies against interlocutory orders; 4. Delay resulting from
pre-trial proceedings; provided, that the delay does not exceed thirty (30) day
s; 5. Delay resulting from orders of inhibition, or proceedings relating to chan
ge of venue of cases or transfer from other courts; 6. Delay resulting from a fi
nding of existence of a prejudicial question; and 7. Delay reasonably attributab
le to any period, not to exceed thirty (30) days, during which any proceeding co
ncerning the accused is actually under advisement. B. Any period of delay result
ing from the absence or unavailability of an essential witness. C. Any period of
delay resulting from the mental incompetence or physical inability of the accus
ed to stand trial. D. If the information is dismissed upon motion of the prosecu
tion and thereafter a charge is filed against the accused for the same offense,
any period of delay from the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent charge had there been no p
revious charge. E. A reasonable period of delay when the accused is joined for t
rial with a coaccused over whom the court has not acquired jurisdiction, or, as
to whom the time for trial has not run and no motion for separate trial has been
granted. F. Any period of delay resulting from a continuance granted by a any c
ourt motu QuickTime and decompressor proprio, or TIFF (Uncompressed) this either
the accused or on motion of picture. are needed to see his counsel, or the prose
cution, if the court granted the continuance on the basis of its findings set fo
rth in the order that the ends of justice served by taking such action outweigh
the best interest of the public and the accused in a speedy trial. ABSENT When t
he whereabouts are unknown or cannot be determined with due diligence UNAVAILABL
E When his whereabouts are known but his presence at the trial cannot be obtaine
d with due diligence Section 4. Factors granting continuance FACTORS FOR GRANTIN
G CONTINUANCE: 1. Whether the failure to grant continuance would make a continua
tion of the proceeding impossible or result in a miscarriage of justice. 2. The
case, as a whole, is novel, unusual and complex, or it is unreasonable to expect
adequate preparation within the periods of time established therein. The grant
of a motion for continuance is NOT a matter of right The purpose of this rule is
to control the discretion of the judge in the grant of continuance on his insta
nce or on motion of any party litigant. Section 5. Time limit following an order
for new trial GENERAL RULE: After an order for new trial is issued, the trial c
ommences within 30 days from notice of the order. EXCEPTION: If the 30-day perio
d becomes impractical due to unavailability of the witnesses and other factors,
it may be extended by the court but in no case should it exceed 180 days from no
tice of said order for new trial. Section 6. Extended time limit Section 7. Publ
ic attorneys duties where accused is imprisoned PUBLIC ATTORNEYS DUTIES: 1. Prompt
ly undertake to obtain the presence of the prisoner for trial or cause a notice
to be served on the person having custody of the prisoner requiring such person
to so advise the prisoner of his right and demand trial. 2. Upon receipt of that
notice, the custodian of the prisoner shall promptly advise the prisoner of the
charge and of his right to demand trial. If at anytime thereafter the prisoner
informs his custodian that he demands such trial, the latter shall cause notice
to that effect to be sent promptly to the public attorney.
Page 216 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


3. Upon receipt of such notice, the public attorney shall promptly seek to obtai
n the presence of the prisoner for trial. 4. When the custodian of the prisoner
receives from the public attorney a properly supported request for the availabil
ity of the prisoner for purpose of trial, the prisoner shall be made available a
ccordingly. Public Attorneys referred to in this section are those attorneys of
the Public Attorneys Office of the Department of Justice who are assisting accuse
d not financially capable to have a counsel of their own. These public attorneys
enter their appearance in behalf of the accused upon his request or that of his
relative or upon being appointed as counsel de oficio by the court. The sanctio
ns are designed to speed up the trial and disposition of the cases and to encour
age the lawyers to go to court ready for trial and not ready to postpone. Section
8. Sanctions ACTS WHICH EVOKE THE SANCTION: 1. Knowingly allowing the case to be
set on trial without disclosing that a necessary witness would be unavailable;
2. Files a motion solely for delay, knowing it to be frivolous and without merit
; 3. Knowingly makes a false statement in order to obtain continuance; 4. Willfu
lly fails to proceed to trial without justification. THE SANCTIONS: a) Private D
efense Counsel fine not exceeding P20, 000 + criminal sanctions, if any. b) Coun
sel de officio, Public Attorney or Prosecutor fine not exceeding P5, 000 + crimi
nal sanctions, if any. c) Defense Counsel or Prosecutor denial of the right to p
ractice before the court trying the case for a period not exceeding 30 days + Qu
ickTime and a TIFF (Uncompressed) deco criminal sanctions, if see this pmpressor
any. icture. are needed to KINDS OF SANCTIONS UNDER THIS SECTION: 1. Criminal; 2
. Administrative; 3. Contempt of court. Section 9. Remedy where accused is not b
rought to trial within the time limit Arraignment must be set within 30 days fro
m the date the court acquires jurisdiction over the person of the accused, and w
ithin the same period, the court must set the case for pre-trial, and within 30
days from the receipt of the pre-trial order, the trial must be commenced. The r
emedy of the accused is to file a motion to dismiss the information on the groun
d of denial of his right to speedy trial. Failure of the accused to move for dis
missal prior to trial shall constitute a waiver of his right to dismiss under th
is section The dismissal shall be subject to the rules on double jeopardy. So if
the dismissal is with prejudice, the case cannot be revived anymore. But if the
dismissal is without prejudice, the revival of the case is proper. Section 10.
Law on speedy trial not a bar to provision on speedy trial in the Constitution T
he accused should be brought to trial within 30 days from the date the court acq
uires jurisdiction over the person of the accused (Rule 116, Section 1g). If he
is not brought to trial within the period specified, he may quash the informatio
n on the ground of denial of his right to speedy trial. Failure to move for dism
issal prior to trial shall constitute a waiver of the right to dismiss under Sec
tion 9, Rule 120. Arraignment must be set within 30 days from the date the court
acquires jurisdiction over the person of the accused, and within the same perio
d, the court must set the case for pre-trial, and within 30 days from the receip
t of the pre-trial order, the trial must be commenced. Section 11. Order of tria
l ORDER OF TRIAL: 1. Prosecution presents evidence to prove the charge and, in t
he proper case, the civil liability. 2. The accused presents evidence to prove h
is defense and damages, if any. 3. The prosecution, then the defense, may presen
t rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice
, permits them to present additional evidence. 4. Upon admission of the evidence
by the parties, the case is deemed submitted for decision. GENERAL RULE: The or
der in the presentation of evidence must be followed. The accused may not be req
uired to
Page 217 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


present his evidence first before the prosecution adduces its own proof. EXCEPTI
ON: Where a reverse procedure was adopted without the objection of the defendant
and such procedure did not prejudice his substantial rights, the defect is not
a reversible error. REVERSE TRIAL When the accused admits the act or omission ch
arged in the complaint/information but interposes a lawful defense, the trial co
urt may allow the accused to present his defense first and thereafter give the p
rosecution the opportunity to present his rebuttal evidence. A departure from th
e order of the trial is NOT reversible error as where it was agreed upon or not
seasonably objected to, but not where the change in the order of the trial was t
imely objected by the defense. Where the order of the trial set forth under this
section was not followed by the court to the extent of denying the prosecution
an opportunity to present its evidence, the judgment is a NULLITY. Prosecution b
egins because it has the burden of proving the guilt of the accused, relying on
the strength of its own evidence and NOT on the weakness of the defense. If ther
e is not enough evidence to prove the accuseds guilt beyond reasonable doubt, the
n the defense should file Demurrer to Evidence People v. Gutierrez, 302 SCRA 643
(1999) Refusal of the trial court to reverse the order of trial upon demand of
the accused who pleads selfdefense as a defense is not a reversible error AFFIRM
ATIVE DEFENSE Requires the prosecution The accused admits the to prove the guilt
of the act or omission charged, QuickTime and a accused beyond TIFF (Uncompresse
d) decompressor but interposes a defense, reasonable doubt are needed to see thi
s picture. proven, would which if exculpate him Accused claims that one of the e
lements of the offense charged is not present. It is incumbent upon the prosecut
ion to prove the existence of this element NEGATIVE DEFENSE Section 12. Applicat
ion for examination witness for accused before trial of
Accused may have his witness examined conditionally in his behalf BEFORE trial u
pon motion with notice to all other parties: SUCH MOTION MUST STATE: 1. Name and
residence of the witness; 2. substance of testimony; 3. witness is so sick to a
fford reasonable ground to believe that he will not be able to attend the trial
OR resides more than 100km and has no means to attend the same or other similar
circumstances Section 13. Examination of defense witness; how made DEPOSITION It
is the testimony of a witness taken upon oral questions or written interrogator
ies, in open court, but in pursuance of a commission to take testimony issued by
a court, or under a general law or court rule on the subject, and reduced to wr
iting and duly authenticated, and intended to be used in preparation and upon th
e trial of a civil or criminal prosecution.
PURPOSE OF TAKING DEPOSITIONS: 1. Greater assistance to the parties in ascertain
ing the truth and checking and preventing perjury 2. Provide an effective means
of detecting and exposing false, fraudulent claims and defenses 3. Make availabl
e in a simple, convenient and inexpensive way, facts which otherwise could not b
e proved except with greater difficulty 4. Educate the parties in advance of tri
al as to the real value of their claims and defenses thereby encouraging settlem
ents 5. Expedite litigation 6. Prevent delay 7. Simplify and narrow the issues 8
. Expedite and facilitate both preparation and trial WHO SHOULD MAKE THE EXAMINA
TION? 1. judge; 2. a member of the Bar in good standing so designated by the jud
ge; 3. before an inferior court designated in the order of a superior court Sect
ion 14. Bail to secure appearance of material witness
Page 218 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


People v Montejo, 21 SCRA 722 (1967) Even if the witness has been cited to appea
r before a court sitting outside of the province in which he resides and the dis
tance is more than 50km (now 100km) from his place of residence by the usual cou
rse of travel, he is still bound by the subpoena. Rule 23 applies only in civil
cases. If the court is satisfied upon proof or oath that a material witness will
not testify when required, it may order the witness to post bail in such sum as
may be deemed proper. If the witness refuses to post bail, the court shall impr
ison him until he complies or is legally discharged after his testimony has been
taken. Section 15. Examination of witness for the prosecution EXAMINATION OF WI
TNESS FOR THE PROSECUTION: 1. The witness for the prosecution may be conditional
ly examined by the court where the case is pending if said witness is: a. Too si
ck to appear at the trial; or b. Has to leave the Philippines with no definite d
ate of return. 2. Such examination should be in the presence of the accused or i
n his absence after reasonable notice to attend the examination has been served
on him. 3. Examination of child witnesses is tackled under the Rule on Examinati
on of a Child Witness which took effect on December 15, 2000. EXAMINATION OF DEF
ENSE WITNESS EXAMINATION OF PROSECUTION WITNESS Conducted ONLY before the judge
or the court where the case is pending Right to cross-examine court, in its disc
retion upon motion of the prosecution or any of the defendants, orders a separat
e trial. The motion for separate trial must be filed BEFORE the commencement of
the trial and cannot be raised for the first time on appeal. If a separate trial
is granted, the testimony of one accused imputing the crime to his co-accused i
s not admissible against the latter. It would be admissible if the latter had th
e opportunity for cross-examination. Where the conditions are fulfilled, joint t
rial is automatic, without need for the trial court to issue an order to that ef
fect. The grant of separate trial rests in the sound discretion of the court and
is not a matter of right to the accused, especially where it is sought after th
e presentation of the evidence of the prosecution. In such separate trial, only
the accused presenting evidence has to be present. And the evidence to be adduce
d by each accused should not be considered as evidence against the other accused
. When a separate trial is demanded and granted, it is the duty of the prosecuti
on to repeat and produce all its evidence at each and every trial, unless it has
been agreed by the parties that the evidence for the prosecution would not have
to be repeated at the second trial and all the accused had been present during
the presentation of the evidence of the prosecution and their lawyer had the opp
ortunity to cross-examine the witnesses for the prosecution. People v. Ellasos a
nd Obillo, G.R. No. 139323 (2001) The trial judge gravely erred in rendering a j
udgment of conviction against both accused. Since the trial of B did not take pl
ace, the trial court should have rendered a decision only against A. Section 17.
Discharge of accused to be state witness Section 18. Discharge of accused opera
tes as acquittal STATE WITNESS One of two or more persons jointly charged with t
he commission of a crime but who is discharged with his consent as such accused
so that he may be a witness for the state. REQUISITES TO BE A STATE WITNESS: 1.
Two or more persons are jointly charged with the commission of an offense
Page 219 of 289
Conducted before any judge, member of the bar in good standing or before any inf
erior court No right to crossexamine QuickTime and a be May be made if the (Uncom
pressed) decompressor made even if Cannot TIFF are needed to see this witness re
sides more witness resides more the picture. than 100km from the than 100km from
the place of trial place of trial Section 16. Trial of several accused When two
or more defendants are jointly charged with any offense, they shall be tried jo
intly, unless the

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


2. The application for discharge is filed by the prosecution before it rests its
case 3. Absolute necessity for the testimony of the accused Absolute necessity me
ans that he alone has knowledge of the crime, and not when his testimony would s
imply corroborate or otherwise strengthen the evidence in the hands of the prose
cutor. 4. There is no other direct evidence available for the proper prosecution
of the offense. 5. Testimony of the accused can be substantially corroborated i
n its material points. 6. Accused does not appear to be the most guilty Means th
at he does not appear to have the highest degree of culpability in terms of part
icipation in the commission of the offense and not necessarily in the severity o
f the penalty imposed. The fact that there was conspiracy does not preclude one
from being discharged as a state witness. What the court takes into account is t
he gravity or nature of acts committed by the accused to be discharged compared
to those of his co-accused, and not merely the fact that in law the same or equa
l penalty is imposable on all of them. 7. Accused has not been convicted of any
offense involving moral turpitude. TWO TYPES OF IMMUNITY: a. TRANSACTIONAL IMMUN
ITY witness can no longer be prosecuted for any offense whatsoever arising out o
f the act or transaction. b. USE-AND-DERIVATIVE-USE-IMMUNITY witness is only ass
ured that his or her particular testimony and evidence derived from it will not
be used against him or her in a subsequent prosecution. The application for disc
harge of the state witness must be made upon motion of the prosecution BEFORE re
sting its case.
QuickTime and a TIFF (Uncompressed) decompressor The defense should be see this p
icture. opportunity to are needed to afforded oppose the motion to discharge an
accused to be a state witness.
trial court may be challenged in a petition for certiorari and prohibition. A di
scharge under the original information is just as binding upon the subsequent am
ended information, since the amended information is just a continuation of the o
riginal. The subsequent amendment of the information does not affect the dischar
ge of an accused as a state witness because the amended information is not anew
information but is a continuation of the original proceeding. GENERAL RULE: A co
-conspirator may testify against the other coconspirator even if not done clande
stinely PROVIDED it must be received by court with caution and must be substanti
ally corroborated in its material points. The EXCEPTION to this rule is even if
uncorroborated but the testimony was given in a straightforward manner and it co
ntains details which could not have been the result of deliberate afterthought.
It is not necessary that there be a hearing of the motion to discharge as long a
s the court is able to receive evidence for and against the discharge of an accu
sed to become a witness. (People v Sunga) GENERAL RULE: The discharge of an accu
sed to be a state witness amounts to an acquittal and is a bar to future prosecu
tion for the same offense. Where an accused has been discharged to be utilized a
s state witness and he thus testified, the fact that the discharge was erroneous
as the conditions for discharge were not complied with did not thereby nullify
his being precluded from re-inclusion in the information or from being charged a
new for the same offense or for an attempt or frustration thereof, or for crimes
necessarily included in or necessarily including those offense. EXCEPTIONS: a.
If accused fails or refuses to testify against the co-accused; b. If he was gran
ted immunity and fails to keep his part of the agreement, his confession of his
participation in the commission of the offense is admissible in evidence against
him.
Any question against the order of the court to discharge an accused to be used a
s state witness must be raised in the trial court; it cannot be considered on ap
peal. Where there is, however, a showing of grave abuse of discretion, the order
of the
Page 220 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Section 19. When mistake has been made in charging the proper offense When, at a
ny time before judgment, it becomes manifest that a mistake has been made in cha
rging the proper offense and the accused cannot be convicted of the offense char
ged or any other offense necessarily included therein, the said accused shall no
t be discharged if there appears to be good cause to detain him. If there appear
s to be good cause to detain the accused, the court shall commit the accused and
dismiss the original case upon the filing of the proper information. When the o
ffense proved is neither included in, nor does it include, the offense charged a
nd is different therefrom, the court should dismiss the action and order the fil
ing of a new information charging the proper offense. US v. Campo, 23 Phil. 369
(1912) This rule is predicated on the fact that an accused person has the right
to be informed of the nature and cause of the accusation against him, and to con
vict him of an offense different from that charged in the complaint or informati
on would be an unauthorized denial of that right. Section 20. Appointment of act
ing prosecutor When a prosecutor, his assistant or deputy is disqualified to act
, the judge or the prosecutor shall communicate with the Secretary of Justice in
order that the latter may appoint an acting prosecutor. Section 21. Exclusion o
f the public GENERAL RULE: The accused has the right to public trial and under o
rdinary circumstances, the court may not close the door of the courtroom to the
general public. EXCEPTION: The public may be excluded from the courtroom when ev
idence to beand a QuickTime produced is offensive TIFF (Uncompressed) decompresso
r are needed to see to decency or public morals. this picture. The court may als
o, on motion of the accused, exclude the public from the trial except court pers
onnel and the counsel of the parties. Section 22. Consolidation of trials of rel
ated offenses THIS CONTEMPLATES A SITUATION WHERE SEPARATE MOTIONS ARE FILED: 1.
for offenses founded on the same facts; 2. for offenses which form part of a se
ries of offenses of similar character. The purpose of consolidation is to avoid
multiplicity of suits, guard against oppression or abuse, prevent delay, clear c
ongested dockets, simplify the work of the trial court, and save unnecessary cos
t or expense; in short, the attainment of justice with the least expense and vex
ation to the party litigants. While consolidation of cases and joint trial of re
lated offenses and the rendition of a consolidated decision are allowed, the cou
rt cannot convict an accused of a complex crime constitutive of the various crim
es alleged in the consolidated cases. Section 23. Demurrer to evidence DEMURRER
TO EVIDENCE It is an objection by one of the parties in an action, to the effect
that the evidence which his adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain the issue. AFTER THE PROSECU
TION SHALL HAVE RESTED ITS CASE, THE CASE MAY BE DISMISSED IN ANY OF THE FOLLOWI
NG MANNER: a. Court on its own initiative can dismiss the case after giving pros
ecution opportunity to be heard b. Accused files demurrer with or without leave
of court c. If the demurrer is denied: With leave of court, accused can present
his evidence Without leave of court, accused waives right to present evidence Wi
th or Without Leave of Court a) With leave if the motion is denied, he can still
present evidence. The motion must be filed within a nonextendible period of 5 d
ays after the prosecution rests its case. If leave is granted, the accused shall
file the demurrer to evidence within a nonextendible period of 10 days from not
ice of the grant of leave of court. The prosecution may oppose the demurrer to e
vidence within a non-extendible period of 10 days from receipt of the demurrer.
Page 221 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


b) Without leave if the motion is denied, he loses the right to present evidence
and the case will be deemed submitted for decision If there are two or more acc
used and only one of them presents a demurrer to evidence, without leave of cour
t, the trial court may defer resolution thereof until the decision is rendered o
n the other accused. An order denying the motion for leave of court to file a de
murer shall NOT be reviewable by appeal or by certiorari before judgment. This i
s because demurrer is merely interlocutory. However, if there was grave abuse of
discretion, then certiorari may apply. If the court denies the demurrer to evid
ence without leave of court, the accused is deemed to have waived his right to p
resent evidence and submits the case for judgment on the basis of the evidence o
f the prosecution. Section 24. Reopening At any time before finality of judgment
of conviction, judge may, motu proprio or upon motion, with hearing in either c
ase reopen to avoid miscarriage of justice. If judgment is not put in writing, t
he proper remedy would be to file a petition for mandamus to compel the judge to
put in writing the decision of the court. Article VIII, Section 14, par. 1 of t
he Constitution requires that the decisions of the court shall contain the facts
and the law on which they are based. The rationale is that the losing party is
entitled to know why he lost, so he may appeal to a higher court. The judge who
penned the decision need not be the one who heard the case. The judge can rely o
n the transcript of stenographic notes taken during the trial. Section 2. Conten
ts of judgment CONTENTS OF A JUDGMENT OF CONVICTION: 1. The legal qualifications
of the offense constituted by the acts committed by the accused and the aggrava
ting and mitigating circumstances which attended its commission. 2. Participatio
n of the accused either as principal, accomplice or accessory 3. penalty imposed
on the accused 4. civil liability or damages, if any, unless a separate civil a
ction has been reserved or waived. Alternative Penalties A judge cannot impose a
lternative penalties (reclusion perpetua or P10,000 fine) because this would all
ow the accused to choose which penalty to serve, giving the accused discretion p
roperly belonging to the court. CONTENTS OF A JUDGMENT OF ACQUITTAL: 1. Whether
the evidence absolutely failed to prove the guilt of the accused or merely faile
d to prove it beyond reasonable doubt 2. If the act or omission from which civil
liability may arise did not exist REASONABLE DOUBT state of the case which, aft
er full consideration of all the evidence, leaves the mind of the judge in such
a condition that he cannot say that he feels an abiding conviction, to a moral c
ertainty, of the truth of the charge. Barbers vs Laguio, Jr., 351 SCRA 606 (2001
) It is well settled that acquittal, in a criminal case is immediately final and
executory upon its promulgation, and that accordingly, the State may not seek i
ts review without placing the accused in double jeopardy.
RULE 120 JUDGMENT Section 1. Judgment; definition and form JUDGMENT It is an adj
udication by the court that the accused is guilty or not guilty of the offense c
harged and the imposition of the proper penalty and civil liability, if any. It
is a judicial act which settles the issues, fixes the rights and liabilities of
the parties, and determines the proceeding, and is regarded as the sentence of t
he law pronounced by the court on the action or question before it. REQUISITES O
F A JUDGMENT: a QuickTime and TIFF (Uncompressed) decom 1. Written in official la
nguage pressor are needed to see this picture. 2. Personally and directly prepar
ed by the judge 3. Signed by him 4. Contains clearly and distinctly a statement
of the facts and the law upon which it is based. A verbal order does not meet th
e requisites. As such, it can be rescinded without prejudicing the rights of the
accused. It has no legal force and effect.
Page 222 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Effect of Acquittal on Civil Liability Acquittal of an accused based on reasonab
le ground does not bar the offended party from filing a separate civil action ba
sed on a quasi-delict. In fact, the court may hold an accused civilly liable eve
n when it acquits him. Section 3. Judgment for two or more offenses Prohibition
on Duplicitous Information & Waiver A complaint or information must charge only
one offense. However, if the accused does not object to the duplicity before he
enters his plea, he is deemed to have waived the defect. He may be found guilty
for as many offenses as alleged in the complaint or information as may have been
duly proved. Maximum Sentence In the service of sentence, the maximum duration
of the sentence shall not be more than 3-fold the time of the most severe penalt
y imposed, and such maximum shall in no case exceed 40 years. Section 4. Judgmen
t in case of variance between allegation and proof Section 5. When an offense in
cludes or is included in another GENERAL RULE: The accused may only be convicted
of a crime that is both charged and proved. EXCEPTION: If there is variance bet
ween the crime charged and the crime proved the accused shall be convicted of th
e offense proved which is included in the offense charged or of the offense char
ged which is included in the offense proved. In other words, if there is varianc
e, the accused can only be convicted of the lesser offense which is included in
the graver offense. Inclusion of Offenses An offense charged necessarily include
s the offense proved when some of the essential elements or ingredients of the f
ormerQuickTime and a the latter. constitute
TIFF (Uncompressed) decompressor are needed to see this picture.
It is the reading of the judgment or sentence in the presence of the accused and
the judge of the court who rendered it. Rules on Promulgation of Judgment Judgm
ent must be rendered and promulgated during the incumbency of the judge who sign
ed it The judgment must be read in its entirety for double jeopardy to attach Th
e presence of counsel during promulgation is not necessary Generally, the accuse
d must be present during promulgation of judgment. (but see the following except
ions to this general rule) INSTANCES OF PROMULGATION IN ABSENCIA 1. Judgment is
for a light offense, in which case judgment may be promulgated in he presence of
counsel for the accused or a representative. 2. Accused fails to attend the pro
mulgation despite due notice or if he jumped bail or escaped form prison. Notice
must be given to the bondsmen, warden, accuseds bailor and counsel. How Promulga
tion In Absencia is Conducted Promulgation shall be made by recording the judgme
nt in the criminal docket and serving the accused a copy thereof at his last kno
wn address or through his counsel. If judgment is one of conviction and the accu
sed is absent without justifiable cause, the court shall order his arrest and he
shall lose the remedies available in the Rules against the judgment. However, t
he accused may surrender and file a motion for leave of court to avail of these
remedies within 15 days from promulgation of judgment. If such motion is granted
, he may avail of these remedies within 15 days from notice of such order granti
ng the motion. Section 7. Modification of judgment Upon motion of the accused, a
judgment of conviction may be modified or set aside before it becomes final or
before appeal is perfected. NOTE: The prosecutor cannot ask for the modification
of the judgment, because the rules are clear that modification is only upon mot
ion of the accused
Page 223 of 289
An offense charged is necessarily included in the offense proved, when the essen
tial ingredients of the former constitute or form part of those constituting the
latter. Section 6. Promulgation of judgment PROMULGATION OF JUDGMENT IN CRIMINA
L CASES

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


FINALITY OF JUDGMENT 1. After the lapse of the period for perfecting an appeal;
or 2. When the sentence has been partially or totally satisfied or served; or 3.
When the accused has waived in writing his right to appeal; or 4. Accused has a
pplied for probation. NOTE: When the Death Penalty is imposed by the trial court
, the SC automatically reviews the decision. Modification of Civil Aspect of Cas
e The trial court may validly modify the civil aspect of its decision within 15
days from promulgation thereof even though an appeal from the judgment had alrea
dy be perfected by the accused WHEN TRIAL COURT MAY LOSE JURISDICTION EVEN BEFOR
E LAPSE OF 15 DAYS 1. defendant voluntarily submits to the execution of the judg
ment 2. defendant perfects an appeal 3. defendant withdraws his appeal 4. accuse
d expressly waives in writing his right to appeal 5. accused files for probation
Section 8. Entry of judgment How Entry of Judgment is Made The recording of the
judgment or order in the book of entries of judgments shall constitute its entr
y. The record shall contain the dispositive portion or order and shall be signed
by the clerk of court with a certificate that such judgment or order has become
final and executory. MITTIMUS It is a process issued by the court after convict
ion to carry out the final judgment. Section 9. Existing provisions governing su
spension of sentence, probation and parole not affected by this Rule
TIFF SUSPENSION decompressor EXCEPTIONS FOR (Uncompressed) this picture.OF SENTE
NCE are needed to see OF YOUTHFUL OFFENDERS 1. offender has enjoyed previous sus
pension of sentence 2. offender is convicted of crime punishable by death or lif
e imprisonment 3. offender is convicted by a military tribunal 4. offender is al
ready of age at the time of sentencing even if he was a minor at the time of the
commission of the crime QuickTime and a
PROBATION The period to file an application for probation is after the accused s
hall have been convicted by the trial court and within the period for perfecting
an appeal. Probation is a mere privilege and is revocable before final discharg
e of the probationer by the court. The basis of the coverage of the Probation La
w is gravity of the offense. Fixing the cut-off at a maximum term of 6 years imp
risonment is based on the assumption that those sentenced to higher penalties po
se too great a risk to society, not just because of their demonstrated capabilit
y for serious wrongdoing but because of the gravity of serious consequences of t
he offense they might further commit. OFFENDERS DISQUALIFIED FROM PROBATION 1. T
hose sentenced to serve a maximum term of imprisonment of more than 6 years 2. T
hose charged with subversion or any crime against national security or public or
der 3. Those previously convicted by final judgment of an offense punished by im
prisonment not less than 1 month and 1 day and/or a fine not less than P200 4. T
hose who have been once on probation 5. Those who are already serving sentence a
t the time the Probation Law of 1976 became applicable WHEN THE COURT SHOULD DEN
Y PROBATION 1. Offender is in need of treatment that can be provided most effect
ively by his commitment to an institution 2. There is an undue risk that offende
r will commit another crime during the period of probation 3. When probation wil
l depreciate the seriousness of the crime SENTENCE IMPOSED Not more than 1year M
ore than 1 year Fine only, but offender serves subsidiary imprisonment PERIOD OF
PROBATION Not more than 2 years Not more than 6 years At least equal to the num
ber of days of subsidiary imprisonment but not more than twice such period
RULE 121 NEW TRIAL OR RECONSIDERATION
Page 224 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Section 1. New trial or reconsideration NEW TRIAL The rehearing of a case alread
y decided but before the judgment of conviction therein rendered has become fina
l, whereby errors of law or irregularities are expunged from the record or new e
vidence is introduced or both steps are taken. NEW TRIAL RECONSI DERATIO N may b
e filed in order to correct errors of law or fact in judgment; does not require
any further proceedin g. REOPENI NG OF TRIAL may be properly presented only afte
r either both parties have formally offered and closed their evidence BUT BEFORE
judgment possible to have trials or hearings or reception of justice in order t
o avoid miscarriag e of justice REOPENI NG OF CASE made by the court before judg
ment is rendered in the exercise of sound discretion time of its filing until no
tice of the order overruling the motion shall have been served upon the accused
or his counsel. time of its filing until notice of the order overruling the moti
on shall have been served upon the accused or his counsel.
Proper only AFTER rendition or promulgatio n of judgment (15 days from promulgat
io n of judgment)
Once the appeal is perfected, the trial court steps out of the case and the appe
llate court steps in. When new material evidence has been discovered, the accuse
d may file a motion for new trial with the appellate court. TRIAL COURT LOSES JU
RISDICTION OVER ITS SENTENCE EVEN BEFORE THE LAPSE OF 15 DAYS 1. when the defend
ant voluntarily submits to the execution of the sentence 2. when the defendant p
erfects his appeal.
requires consent of the accused
Judgment will be based on the pleadings submitted by the parties
does not require the consent of the accused
The moment the appeal is perfected the court a quo loses jurisdiction over it, e
xcept for the purpose of correcting clerical errors Section 2. Grounds for new t
rial GROUNDS FOR A NEW TRIAL IN CRIMINAL CASES 1. errors of law or irregularitie
s prejudicial to the substantial rights of the accused have been committed durin
g the trial (errors of law or irregularities) 2. new and material evidence disco
vered which the accused could not with reasonable diligence have been discovered
and produced at the trial and which if introduced and admitted would probably c
hange the judgment (newly discovered evidence) 3. other grounds which the court
may determine in the exercise of its discretion REQUISITES BEFORE A NEW TRIAL MA
Y BE GRANTED ON THE GROUND OF NEWLY DISCOVERED EVIDENCE 1. that the evidence was
discovered after trial 2. that such evidence could not have been discovered and
produced at the trial even with the exercise of reasonable diligence
Page 225 of 289
made at the instance of the accused or upon the initiative of the court but with
the consent of the accused
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.
may be made at the instance of either party who can thereafter present additiona
l evidence
Interrupts the period for perfecting an appeal from the
interrupts the period for perfecting an appeal from the

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


3. that it is material, not merely cumulative, corroborative, or impeaching 4. t
he evidence is of such weight that it would probably change the judgment if admi
tted Mistake of counsel generally binds the client and is not a ground for new t
rial EXCEPT when the incompetence of the counsel is so great that the defendant
is prejudiced and prevented from fairly presenting his defense and where the err
or of counsel is so serious. Recantation is the public and formal withdrawal of
a witness of his prior statement. It is not a ground for new trial because it ma
kes a mockery of the court and would place the investigation of truth at the mer
cy of the unscrupulous witness. Moreover, retractions are easy to extort out of
witness. In contrast, their statements are made under oath, in the presence of j
udge, and with the opportunity to cross-examine. EXCEPT when aside from the test
imony of the retracting witness, there is no other evidence to support the convi
ction of the accused. In this case, the retraction by the sole witness creates a
doubt in the mind of the judge as to the guilt of the accused AFFIDAVIT OF DESI
STANCE A witness who The complainant previously gave a states that he did not te
stimony subsequently really intend to declares that his institute the case and s
tatements were not true that he is no longer interested in testifying or prosecu
ting It is a ground for dismissing the case only if the prosecution can no longe
r prove the guilt of the accused beyond reasonable doubt without the testimony o
f and a QuickTimethe offended party
TIFF (Uncompressed) decompressor are needed to see this picture.
grant by the court of reconsideration should require no further proceedings, suc
h as taking of additional proof. Section 4. Form of motion and notice to the pro
secutor. FORM OF MOTION RECONSIDERATION 1. 2. 3. 4. FOR NEW TRIAL OR
in writing filed in court state the grounds on which it is based if based on new
ly discovered evidence (for new trial), must be supported by affidavits of witne
sses by whom such evidence is expected to be given or authenticated copies of do
cuments to be introduced in evidence
Notice of the motion for new trial or reconsideration should be given to the pro
secutor. Upon receipt of the motion for new trial/reconsideration, the court sho
uld conduct a hearing regarding the motion in order to determine the merits of t
he motion. While the rule requires that an affidavit of merits be attached to su
pport a motion for new trial based on newly discovered evidence, the defect or l
ack of it may be cured by testimony under oath of the defendant at the hearing o
f the motion (Paredes v Borja, 3 SCRA 495). Section 5. Hearing on motion The pur
pose of hearing is to determine whether the new trial is requested should be gra
nted or not. Section 6. Effects of granting a new trial or reconsideration EFFEC
TS OF GRANTING A NEW TRIAL OR RECONSIDERATION a. When a new trial is granted on
the ground of errors of law or irregularities committed during the trial, all pr
oceedings and evidence affected thereby shall be set aside and taken anew. The c
ourt may, in the interest of justice, allow the introduction of additional evide
nce. b. When a new trial is granted on the ground of newly-discovered evidence,
the evidence already adduced shall stand and the newlydiscovered and such other
evidence as the court may, in the interest of justice, allow to be introduced sh
all be taken and considered
Page 226 of 289
RECANTATION
Section 3. Ground for reconsideration GROUNDS FOR RECONSIDERATION 1. errors of l
aw 2. errors of fact in judgment The principle underlying this rule is to afford
the trial court the opportunity to correct its own mistakes and to avoid unnece
ssary appeals from being taken. The

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


together with the evidence already in the record. c. In all cases, when the cour
t grants new trial or reconsideration, the original judgment shall be set aside
or vacated and a new judgment rendered accordingly. The effect of the granting a
new trial is not to acquit the accused of the crime of which the judgment finds
him guilty but precisely to set aside said judgment so that the case may be tri
ed de novo as if no trial had been conducted before. Unlike the rule in civil ca
ses, the remedy of the aggrieved party being appeal in due time, an order granti
ng a new trial rendered in criminal cases is also interlocutory BUT is controlla
ble by certiorari or prohibition at the instance of the prosecution. Appeals in
criminal cases are perfected when the interested parties have personally or thro
ugh their counsel filed with the clerk of court a written notice expressly stati
ng the appeal. (U.S. vs. Tenorio, 37 Phil 7; Elegado vs. Tavora, 59 Phil. 140) W
hen an appeal has been perfected, the court a quo loses jurisdiction. Effect of
an Appeal An appeal in a criminal case opens the whole case for review. This inc
ludes the review of the penalty, indemnity, and the damages involved. Only final
judgments and orders can be appealed. APPEAL OF A JUDGMENT Must be perfected wi
thin 15 days from promulgation APPEAL OF AN ORDER Must be perfected within 15 da
ys from notice of the final order
RULE 122 APPEAL Section 1. Who may appeal. APPEAL A proceeding for review by whi
ch the whole case is transferred on the higher court Appeal is not a part of due
process except when provided by law or by the Constitution. It is statutory and
must be exercised in accordance with the procedure laid down by law. It is comp
ellable by mandamus. GENERAL RULE: An appeal by the prosecution from the order o
f dismissal is not allowed because it will violate the rule on double jeopardy.
EXCEPTIONS: 1. The dismissal is made upon the motion or with the express consent
of the defendants QuickTime and a TIFF is not an decompressor 2. The dismissal (
Uncompressed) this picture. or based upon acquittal are needed to see considerat
ion of the evidence or the merits of the case 3. Question to be passed upon by t
he appellate court is purely legal so that should the dismissal be found incorre
ct, the case would be remanded to the court of origin for further proceedings
Section 2. Where to appeal Section 3. How appeal taken FROM DECISION OF MTC, fro
m a case decided in its original jurisdiction APPEAL TO CA HOW File a notice of
appeal with the MTC and serve a copy of the notice to the adverse party File a n
otice of appeal with the RTC and serve a copy of the notice to the adverse party
RTC in the exercise of its original jurisdiction for an imposed penalty less tha
n reclusion perpetua, life imprisonment (and death) RTC in the exercise of its a
ppellate jurisdiction RTC where the penalty imposed is reclusion perpetua of lif
e imprisonment, OR where a lesser penalty is imposed for offenses committed on t
he same occasion or which arose out of the same occurrence
CA
CA
CA
File a petition for review with the CA under Rule 42 Automatic review
Page 227 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


that gave rise to the offense punishable by (death) reclusion perpetua or life i
mprisonment All other appeals EXCEPTION: The civil award in a criminal case may
be appealed by the private prosecutor on behalf of the offended party or his suc
cessors. SC Petition for review on certiorari under Rule 45 Petition for review
on certiorari under Rule 45 Automatic review MODES OF REVIEW The Rules of court
recognizes 4 modes by which the decision of the final order of the court may be
reviewed by a higher tribunal 1. ordinary appeal 2. petition for review 3. petit
ion for review on certiorari 4. automatic appeal Section 4. Publication of notic
e of appeal SERVICE OF NOTICE OF APPEAL SERVICE BY SUBSTITUTED PUBLICATION REGIS
TERED SERVICE OF NOTICE MAIL OF APPEAL delivering the made in a By depositing ne
wspaper of the copy in the copy to the clerk of court general post office -in a
sealed with proof of circulation in envelope failure of both the vicinity -plain
ly personal once a week addressed to service and for a period not the party or s
ervice by mail exceeding 30 his counsel at days his office, if known, otherwise
at his residence if known -with postage fully pre-paid -and with instructions to
the post master to return the mail to the sender after 10 days if undelivered S
ection 5. Waiver of notice The appellee may waive his right to notice of appeal.
However, the appellate court may, in its discretion, entertain an appeal notwit
hstanding failure to give such notice if the interests of justice so require (Ll
amas vs. Muscoso, 95 Phil. 735). Section 6. When appeal to be taken
Sandiganbayan
SC
Sandiganbayan in its original jurisdiction where penalty imposed is (death) recl
usion perpetua Sandiganbayan in its appellate jurisdiction where penalty imposed
is (death), reclusion perpetua, or life imprisonment
SC
SC
File a notice of appeal
FROM A JUDGMENT CONVICTING THE ACCUSED, TWO APPEALS MAY ACCORDINGLY BE TAKEN: 1.
The accused may seek a review of said judgment as regards both civil and crimin
al actions 2. The complainant may appeal only with respect to the civil action e
ither because the lower court has refused or failed to award damages or because
the award made is unsatisfactory to him A judgment of acquittal becomes final im
mediately after promulgation. It cannot even be the subject of certiorari. The r
eason for this rule is that an appeal would place the accused in double jeopardy
. However, the offended party may appeal the civil aspect of the case. GENERAL R
ULE: are needed to see this picture. A private prosecutor in a criminal case has
NO authority to act for the People of the Philippines before a court on appeal;
it is the governments counsel, the Solicitor General who appears in criminal cas
es or their incidents before the Supreme Court. At the very least, the Provincia
l Fiscal himself, with the conformity of the Solicitor General shall act for the
People of the Philippines.
QuickTime and a TIFF (Uncompressed) decompressor
Page 228 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Appeal is taken within 15 days from promulgation of the judgment. This period sh
all be suspended from the time a motion for new trial or reconsideration is file
d until notice of overruling the motion has been served upon the accused at whic
h time the balance of the period begins to run. The period of appeal seems to ha
ve been amended by the SC ruling in Domingo Neypes et.al., vs CA, et.al, G.R. No
. 141524 Sept. 24, 2005 (469 SCRA 633). To standardize the appeals period provide
d in the Rules and to afford litigants fair opportunity to appeal their cases, t
he court deems it practical to allow a fresh period rule of 15 days within which
to file the notice of appeal on the RTC, counted from the receipt of the order
dismissing a motion for new trial or motion for reconsideration. NOTE: Although
the SC has made this ruling on a civil case, it is submitted that if the court h
as applied this rule to all other appeals involving civil cases, with more reaso
n should the defendant in a criminal case be given ample time to file his appeal
(Sabio, Jose L. Criminal Procedure Rules 110-127, p 228) Section 7. Transcribin
g and filing notes of stenographic reporter upon appeal Section 8. Transmission
of papers to appellate court upon appeal Within 5 days from the filing of the no
tice of appeal, the clerk of court with whom the notice of appeal was filed must
transmit to the clerk of court of the appellate court the complete record of th
e case together with said notice. Section 9. Appeal to the Regional Trial Courts
Section 10. Transmission of records in case of death penalty Section 11. Effect
of appeal by any of several accused Effects of Appeal by Any of the Accused An
appeal taken by one or more of the several accused shall not affect those who di
d not appeal except insofar as the judgment and athe appellate court of QuickTim
e TIFF (Uncompressed) the latter. is favorable and applicable see this picture. t
o decompressor are needed to The appeal of the offended party from the civil asp
ect shall not affect the criminal aspect of the judgment or order appealed from.
Upon perfection of the appeal, the execution of the judgment or final order app
ealed from shall be stayed as to the appealing party. Section 12. Withdrawal of
appeal An appellant may withdraw his appeal before the record has been forwarded
by the clerk of court of the proper appellate court as provided by Sec. 8 in wh
ich case the judgment shall become final. The court may also, in its discretion,
allow the appellant to withdraw his appeal, provided a motion to that effect is
filed before the rendition of judgment in the case on appeal (People v. Madriga
l-Gonzales, 117 SCRA 956). Once appeal is withdrawn, the decision or judgment ap
pealed from becomes at once final and executory. (People v. Dueo, 90 SCRA 23). Se
ction 13. Appointment of counsel de oficio for accused on appeal The duty of the
counsel de oficio does not terminate upon judgment of the case. It continues un
til appeal.
RULE 123 PROCEDURE IN MUNICIPAL TRIAL COURTS Section 1. Uniform procedure GENERA
L RULE The procedure in the Regional Trial Court shall be applicable to the proc
edure in Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circui
t Trial Court. EXCEPTIONS 1. Particular provision is made applicable only to eit
her of such courts 2. In cases governed by the Rule on Summary Procedure
RULE 124 PROCEDURE IN THE COURT OF APPEALS COURT OF APPEALS The Court of Appeals
has no jurisdiction without judgment of conviction. The Court of Appeals shall
give precedence in the disposition of appeals of accused who is under detention.
It shall hear and decide the appeal at the earliest practicable time with due r
egard to the rights of the parties.
Page 229 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Rights of Accused Appellant An accused-appellant may change his theory on appeal
; thus the case opens the whole action for review on any questioning including t
hose not raised by the parties. When the accused appeals a judgment of convictio
n, he waives the constitutional safeguard against double jeopardy; but every cir
cumstance in favor of the accused should be considered. Section 1. Title of the
case Section 2. Appointment of counsel de oficio for the accused WHEN ACCUSED MA
Y BE GIVEN COUNSEL DE OFICIO ON APPEAL 1. accused is confined in prison 2. he is
without counsel de parte on appeal 3. he signed the notice of appeal himself An
appellant who is not confined in prison may request for counsel de oficio withi
n 10 days from receipt of notice to file appellants brief and the right thereto i
s established by affidavit Section 3. When brief for appellant to be filed 7 cop
ies of the brief shall be filed within 30 days from receipt by the appellant or
his counsel of the notice from the clerk of court that the evidence, oral and do
cumentary, are already attached to the record. BRIEF It literally means a short
or condensed statement. The purpose of the brief is to present to the court in c
oncise form the points and questions in controversy, and by fair argument on the
facts and law of the case, to assist the court in arriving at a just and proper
conclusion. Section 4. When brief for appellee to be filed; reply brief of appe
llant The appellee shall file 7 copies of the brief with the QuickTime and a TIFF
(Uncompressed) decompressor clerk of court withinneeded todays picture. receipt
of the 30 see this from are appellants brief accompanied by proof of service of
2 copies thereof to the appellant. Section 5. Extension of time for filing brief
s Generally not allowed except for good and sufficient cause and only if the mot
ion for extension is filed before the expiration of the period sought to be exte
nded. Section 6. Form of briefs Section 7. Contents of brief Unlike in civil act
ions, it is not necessary for the appellant to make assignment of errors in his
brief, as on appeal, the whole record of the case is submitted to and reviewable
by the appellate court. Section 8. Dismissal of appeal for abandonment or failu
re to prosecute
GROUNDS FOR DISMISSAL OF APPEAL 1. Failure on the part of the appellant to file
his brief within the reglementary period, except when he is represented by couns
el de oficio 2. Escape of the appellant from prison 3. Appellant jumps bail 4. F
light of the appellant to a foreign country during the pendency of the appeal NO
TE: Ground (1) is deemed abandonment of appeal, grounds (2) (3) (4) are deemed f
ailure to prosecute EFFECT OF FAILURE TO PROSECUTE APPEAL 1. judgment of the cou
rt below becomes final 2. accused cannot be afforded the right to appeal unless
a. he voluntarily submits to the jurisdiction of the court or b. he is otherwise
arrested within 15 days from notice of judgment against him Section 9. Prompt d
isposition of appeals It is discretionary on the appellate court whether it will
order a hearing of the case or decide the appeal solely on the evidence submitt
ed to the trial court. If the CA chooses not to conduct a hearing, the justices
composing the division deliberate on the case, evaluate the evidence and then de
cide. Section 10. Judgment not to be reversed or modified except for substantial
error Judgment of the lower courts shall be reversed or modified only when the
Court of Appeals is of the opinion that error was committed which injuriously af
fected the substantial rights of the appellant after it examined the record and
evidence adduced by the parties. Although not often done in the judicial system,
the case of People v. Calayca states that the appellate
Page 230 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


court may reverse the trial courts decision on the basis of grounds other than th
ose that the parties raised as errors. Section 11. Scope of judgment SCOPE OF JU
DGMENT OF CA 1. reverse, affirm or modify the judgment 2. increase or reduce the
penalty imposed 3. remand the case to the trial court for new trial or retrial
4. dismiss the case NOTE: CA cannot revise the judgment because this would viola
te the rule that the judge must write the decision personally. Modify vs Revise
In modifying the decision, the CA bases its modification on errors of law or fac
t. In revision, the court merely changes manner the decision is written. Section
12. Power to receive evidence POWERS OF THE CA 1. to try cases and conduct hear
ings 2. to receive evidence 3. to perform any and all acts necessary to resolve
factual issues raised in cases: a. falling within its original and appellate jur
isdiction b. claims for damages arising from provisional remedies c. where the c
ourt grants a new trial based only on the ground of newly discovered evidence Se
ction 13. Certification or appeal of case to the Supreme Court Three Justices co
nstitute a quorum for the sessions of a division Unanimous vote of the 3 Justice
s of a division shall be necessary to pronounce a judgment or a final resolution
. In the event that there is no unanimous QuickTime and a TIFF vote, the Presidin
g(Uncompressed) this picture. direct the raffle Justice decompressor shall are n
eeded to see committee of the Court to designate two additional Justices in the
division hearing the case and the concurrence of a majority of such division sha
ll be necessary for the pronouncement pf a judgment or final order. Should the C
ourt of Appeals impose the penalty of death, reclusion perpetua, or life impriso
nment after discussing the evidence and law involved, the case is certified and
immediately elevated to the Supreme Court for review. Section 14. Motion for new
trial Section 15. Where new trial conducted The appellant may move for a new tr
ial any time after the appeal from the lower court has been perfected and before
the judgment of the Court of Appeals convicting him becomes final. Section 16.
Reconsideration A motion for reconsideration shall be made within 15 days after
notice of the decision or final order of the Court of Appeals. Section 17. Judgm
ent transmitted and filed in trial court When the entry of judgment of the Court
of Appeals is issued, a certified true copy of the judgment shall be attached t
o the original record which shall be remanded to the clerk of court from which t
he appeal was taken. Section 18. Application of certain rules in civil procedure
to criminal cases NOTE: Rule 47 does NOT APPLY TO CRIMINAL ACTIONS. The proper
remedy for lack of jurisdiction or extrinsic fraud is certiorari (Rule 65) or Ha
beas Corpus ( Rule 102)
RULE 125 PROCEDURE IN THE SUPREME COURT Section 1. Uniform procedure Procedure i
n the SC in appealed cases is the same as in the CA, unless otherwise provided b
y the Constitution or law. Appeal the SC is not a matter of right, but a matter
of sound judicial discretion A direct appeal to the SC on questions of law in ca
ses where the penalty imposed is not reclusion perpetua or death precludes a rev
iew of the facts. Section 2. Review of decisions of the Court of Appeals
Page 231 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


INSTANCES WHEN FINDINGS OF FACTS OF CA ARE NOT CONCLUSIVE ON SC 1. the finding i
s grounded entirely on speculation, conjectures and surmises 2. when the inferen
ce made is manifestly absurd, mistaken or impossible 3. when there is grave abus
e of discretion in the appreciation of facts 4. judgment is premised on a misapp
rehension of facts 5. findings of facts are conflicting 6. when the CA went beyo
nd the issues of the case and the same is contrary to the admissions of both app
ellant and appellee 7. when certain material facts had been overlooked which, if
taken into account would alter the result as it would give rise to reasonable d
oubt to acquit the accused. Section 3. Decision if opinion is equally divided A
criminal case shall be reheard by the Supreme Court en banc when the court en ba
nc is equally divided in the opinion or the necessary majority cannot be had. If
no decision is reached, the conviction of the lower court shall be reversed and
the accused acquitted. A search warrant must conform strictly to the requiremen
ts of the constitutional and statutory provisions under which it is issued, othe
rwise it is VOID It will always be construed strictly without going the full len
gth of requiring technical accuracy. No presumptions of regularity are to be inv
oked in aid of the process when an officer undertakes to justify under it. Garay
gay v. People, G.R. No. 138758 (2000) Where a search warrant is issued by one co
urt and the criminal action based on the results of the search is afterwards com
menced in another court, a motion to quash the warrant/to retrieve things thereu
nder seized may be filed for the first time in either the issuing court or that
in which the criminal action is pending. However, the remedy is alternative, not
cumulative. People v. Ko, G.R. No. 133254-55 (2001) The Dangerous Drugs Act of
1972 is a special law that deals specifically with dangerous drugs which are sub
sumed into prohibited and regulated drugs and defines and penalizes categories of of
fenses which are closely related or which belong to the same class or species. A
ccordingly, one search warrant may thus be validly issued for the said violation
s of the Dangerous Drugs Act. c. It is not for the maintenance of any private ri
ght. d. It is INTERLOCUTORY in character it leaves something more to be done, th
e determination of the guilt of the accused GENERAL WARRANT It is a process whic
h authorizes the search and seizure of things, in a general manner. It does not
specify or describe with particularity the things to be searched and seized. Thi
s kind of warrant is VOID as it infringes on the constitutional mandate requirin
g particular description of the things to be seized. Object of a Search Warrant
To obtain the goods, and bring the person in whose custody they are found, eithe
r to be recognized as a witness or to be subject to such further proceedings as
the ends of justice may require.
RULE 126 SEARCH AND SEIZURE Section 1. Search warrant defined SEARCH WARRANT An
order in writing signed by judge in the name of the People of the Philippines co
mmanding a peace officer to search for personal property and bring it before the
court. ELEMENTS OF A SEARCH WARRANT 1. order in writing 2. signed by judge in t
he name of the People of the Philippines QuickTime and a 3. commanding (Uncompres
sed) decompressor to search for a peace officer TIFF are needed to see this pict
ure. personal property 4. to bring the property before the court NATURE OF A SEA
RCH WARRANT a. It is in the nature of a criminal process and may be invoked only
in furtherance of public prosecutions. It has no relation to civil processes or
trials b. It is not available to individuals in the course of civil proceedings
;
SEARCH WARRANT
WARRANT OF ARREST
Page 232 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


The applicant must show: 1. that the items sought are in fact sizeable by virtue
of being connected with criminal activity; 2. that the items will be found in t
he place to be searched. The judge must conduct a personal, searching examinatio
n of the applicant and his witnesses The applicant must show: 1. probable cause
that an offense has been committed; 2. that the person to be arrested committed
it. GENERAL RULE: It should be filed with the court within whose territorial jur
isdiction the crime was committed. EXCEPTIONS: 1. for compelling reasons, it can
be filed with the court within whose judicial region the offense was committed
or where the warrant is to be served. 2. But if the criminal action has already
been filed, the application for a search warrant can only be made in the court w
here the criminal action is pending. Section 3. Personal property to be seized K
INDS OF PERSONAL PROPERTY TO BE SEIZED: 1. Subject of the offense; 2. Proceeds o
r fruits of the offense; and 3. The means used or intended to be used for commit
ting an offense SEARCH WARRANTS HAVE BEEN ALLOWED TO SEARCH FOR THE FF: 1. Stole
n goods 2. Those supposed to have been smuggled into the country in violation of
the revenue laws 3. Implements of gaming and counterfeiting 4. Lottery tickets
5. Prohibited liquors kept for sale contrary to law 6. Obscene books and papers
kept for sale or circulation 7. Powder and other explosive and dangerous materia
ls so kept as to endanger public safety 8. Slot machines, being gambling devices
Notes on Seizure of Personal Property: Property seized is not required to be ow
ned by the person against whom the search warrant is directed It is not necessar
y that there be arrest or prosecution before seizure could be affected The fact
that a thing is a corpus delicti of a crime does not justify the seizure without
a warrant Section 4. Requisites for issuing search warrant Section 5. Examinati
on of complainant; record REQUISITES FOR ISSUING A SEARCH WARRANT 1. there must
be probable cause 2. which must be determined personally by the judge
Valid only for 10 days May be served on any day and at any time of day or night
The judge need not conduct a personal examination of the applicant and his witne
sses. He may rely on the affidavits of the witnesses and the recommendation of t
he prosecutor. Does not become stale To be served only during the daytime, unles
s affidavit alleges that the property is on the person or in the place to be sea
rched
In general, the requirements for the issuance of a search warrant is more string
ent than the requirements for the issuance of a warrant of arrest. The violation
of the right to privacy produces a humiliating effect which cannot be rectified
anymore. This is why there is no other justification for a search, except a war
rant. On the other hand, in a warrant of arrest, the person to be arrested can a
lways post bail to prevent the deprivation of liberty. SEARCH It is an examinati
on of a mans house, buildings or other premises, or of his person, with a view to
the discovery of some evidence of guilt to be used in the prosecution of a crim
inal action for some offense with which he is charged. SEIZURE It is the physica
l taking of a thing into custody; QuickTime and a TIFF (Uncompressed) decompresso
r contemplates a forcible disposition of the owner are needed to see this pictur
e. Note: A search warrant to be valid requires strict compliance with the Consti
tution. Section 2 Article III of the 1987 Constitution is the constitutional bas
is of the rule on search and seizure Section 2. Court where application for sear
ch warrant shall be filed
Page 233 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


3. upon personal examination in writing and under oath of the complainant and hi
s witnesses in the form of probing and searching questions and answers on facts
personally known to them 4. the probable cause must be in connection with one sp
ecific offense 5. particularly describing the place to be searched and the items
to be seized 6. the sworn statements together with the affidavits of the witnes
ses must be attached to the record. PROBABLE CAUSE (IN GENERAL) Such facts and c
ircumstances antecedent to the issuance of the warrant, that are in themselves s
ufficient to induce a cautious man to believe that the person against whom the s
earch warrant is applied had committed or is about to commit a crime PROBABLE CA
USE FOR A SEARCH It is defined as such facts and circumstances which would lead
a reasonably discreet and prudent man to believe that an offense has been commit
ted and that the objects sought in connection with the offense are in the place
sought to be searched. Determination of Probable Cause Probable cause presuppose
s the introduction of competent proof that the party against whom it is sought h
as performed particular acts or committed specific omissions violating a given p
rovision of our criminal laws. Probable cause is determined in the light of the
conditions obtaining in given situations, but there is no general formula or fix
ed rule for the determination of the existence of probable cause. A good and pra
ctical rule of thumb is to measure the nearness of time given in the affidavit a
s to the date of the alleged offense, and the time of the making the affidavit.
The nearer the time at which the observation of the offense is alleged to have b
een made, the more reasonable the conclusion of establishment of probable cause
a QuickTime and
TIFF (Uncompressed) decompressor are needed to see this picture.
The examination must be probing and exhaustive, not merely routinary or pro form
a The questions must not merely be answerable by yes or no. Answers given cannot
be based merely on reliable information. Application for a search warrant is he
ard ex-parte, there is neither a trial nor a part of the trial. Test to determin
e if an affidavit or testimony of the witness is based on personal knowledge is
whether perjury could be charged against the witness. Probable Cause Must be in
Connection with One Specific Offense The purpose of this rule is to outlaw gener
al warrants. Otherwise, this would place the sanctity of the domicile and the pr
ivacy of communication and correspondence at the mercy of the whims, caprice or
passion of peace officers. A warrant issued for the seizure of drugs connected w
ith violation of the Dangerous Drugs Law is valid. Although there are many ways of
violating the Dangerous Drugs Law, it is not a scatter shot warrant since it is
in connection with only one penal law. SCATTER SHOT WARRANT It is a warrant tha
t is issued for more than one offense. It is void, since the law requires that a
warrant should only be issued in connection with one specific offense. Particul
arity of Description The warrant must particularly describe the place to be sear
ched and the persons or things to be seized; The constitution requires that it b
e a description which particularly points to a definitely ascertainable place, s
o as to exclude all others. The description must be so particular that the offic
er charged with the execution of the warrant will be left with no discretion res
pecting the property to be taken. It may be said that the person to be searched
is particularly described in the search warrant when his name is stated in the s
earch warrant, or if the name is unknown, he is designated by words sufficient t
o enable the officer to identify him without difficulty.
REQUISITES OF PERSONAL EXAMINATION BY THE JUDGE 1. The judge must examine the wi
tnesses personally 2. It must be under oath 3. Examination must be reduced to wr
iting in the form of probing and searching questions. Probing and Searching Ques
tions
Page 234 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Search warrant is severable, and those items not particularly described may be c
ut off without destroying the whole warrant if theres an error in the warrant, th
e officers should go to the court to have it corrected Anything not included in
the warrant cannot be seized EXCEPT if it is mala prohibita, in which case, the
seizure can be justified under the plain view doctrine. Even if the object was r
elated to the crime, but it is not mentioned in the warrant nor is it mala prohi
bita, it still cannot be seized. Section 6. Issuance and form of search warrant
Form of Search Warrant The search warrant must be in writing and must contain su
ch particulars as the name of the person against whom it is to be enforced, offe
nse for which it was issued, place to be searched and the specific things to be
seized Section 7. Right to break door or window to effect search If the officer
acts within the command of his warrant, he is protected even if the complaint is
proven to have been unfounded. KNOCK AND ANNOUNCE PRINCIPLE GENERALLY, OFFICERS
EXECUTING A SEARCH MUST DO THE FOLLOWING ACTS: 1. announce their presence 2. id
entify themselves to the accused and to the persons who rightfully have possessi
on of the premises to be searched 3. show to them the search warrant 4. explain
the warrant in a language or dialect known and understood by them WHEN UNANNOUNC
ED INTRUSION IS PERMISSIBLE 1. person in premises refuses to open it upon demand
2. person in the premises and a already knew of the QuickTime TIFF (Uncompressed
) decompressor identity and authority see this picture. of the officers are need
ed to 3. when officers have an honest belief that there is an imminent danger to
life and limb 4. when those in the premises, aware of the presence of someone o
utside, are then engaged in activities which justifies the officers to believe t
hat an escape or the destruction of evidence is imminent Section 8. Search of ho
use, room, or premises to be made in presence of two witnesses In searching a ho
use, room or other premises, such shall be done in the presence of a lawful occu
pant or any member of his family, or in the presence of at least 2 witnesses of
sufficient age and discretion, residing in the same locality The searching offic
er should also be considerate of the premises searched; he should mar the premis
es as little as possible, and should carefully replace anything he finds necessa
ry to remove. Note: The 2 witnesses rule applies only if there is no other occup
ant of the home Section 9. Time of making search GENERAL RULE Warrant must be di
rected and served in the daytime EXCEPTIONS: 1. if there are emergencies 2. prop
erty is on the person or place to be searched The general rule prohibits search
in the night because sometimes robberies happen, under the pretense of searches
Section 10. Validity of search warrant A warrant is valid for ten days from its
date. After such time, it is VOID. A search warrant cannot be used everyday for
10 days, and for a different purpose each day warrant used to seize one thing ca
nnot be used as authority to make another search This rule is NOT APPLICABLE whe
n the search for a property mentioned in the warrant was not completed on the da
y when the warrant was issued and had to be continued the next day Section 11. R
eceipt for the property seized Section 12. Delivery of property and inventory th
ereof to court; return and proceedings thereon Officer seizing the property unde
r the warrant must give a detailed receipt for the same to the lawful occupant o
r any member of the family or at least 2 witnesses of sufficient age and discret
ion residing in the same locality. The property will then be held in custodia le
gis
Page 235 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Section 13. Search incident to lawful arrest ALLOWABLE WARRANTLESS SEARCHES AND
SEIZURES: 1. Incidental to lawful arrest 2. Consented search (waiver of right) 3
. Search of moving vehicles 4. Enforcement of customs laws 5. Checkpoints 6. RA
requiring inspections or body checks in airports 7. When there are illegal artic
les open to the eye and hand (plain view) 8. Stop-and-frisk situations 9. Emerge
ncy 10.Enforcement of health and sanitary laws REQUISIITES FOR PLAIN VIEW DOCTRI
NE 1. valid intrusion 2. item must be visible seen without any further search; e
.g. in a transparent bag 3. inadvertent discovery Ex. police officer chasing a s
uspect, sees a box, takes a peak and sees drugs can be seized because malum proh
ibitum but cannot be introduced as evidence because not in plain view if detecte
d through smell, not case of plain view but probable cause if detected by canine
s - as if police themselves have smelled it if police chases a person, accidenta
lly hits a jar, where drugs pour out not plain view Searches Incident to Lawful
Arrest This right includes searching the person who is arrested, in order to fin
d and seize the things connected with the crime as its fruits or as the means by
which it was committed Search made without a warrant cannot be justified as an
incident of arrest unless the arrest itself was lawful A search is not incidenta
l to the arrest unless the QuickTime and a TIFF (Uncompressed) decompressor searc
h is made needed to see this picture. at the place of arrest, are contemporaneou
sly with the arrest. The area that may be validly searched is limited to the are
a within the immediate control of the person arrested REQUISITES FOR VALID WAIVE
R OF RIGHT (CONSENTED SEARCH) 1. right exists 2. person making the consent knows
that he has the right 3. in spite of knowledge of the right, he voluntarily and
intelligently gives consent Search of Moving Vehicles Vessels and aircrafts may
be searched and seized without a warrant because a vessel can be quickly moved
out of the locality before a warrant could be secured. Validity of Checkpoints C
heckpoints are not per se invalid provided that searches conducted therein are l
imited to a mere cursory inspection (Valmonte case) UNREASONABLE SEARCH AND SEIZ
URE It is such where it is not authorized by statute, or where the conditions pr
escribed by the stature have not been met. Rules on Reasonableness of Search Wha
t constitutes a reasonable or unreasonable search or seizure in any particular c
ase is purely a judicial question Such is determinable from a consideration of t
he circumstances involved, including the ff: The purpose of the search Presence
or absence of probable cause Manner in which the search and seizure was made Pla
ce or thing searched Character of the articles procured. Searches and seizure in
side presumptively unreasonable a home are
Constitutional prohibition against unlawful searches and seizure applies as a re
straint directed only against the government and its agencies tasked with the en
forcement of the law. It could thus only be invoked against the State. Who May Q
uestion the Validity of a Search The legality of a seizure can be contested only
by the party whose rights have been impaired thereby. The objection to an unlaw
ful search and seizure is purely personal and cannot be availed by third parties
. The remedy for questioning the validity of a search warrant can only be sought
in the court that issued it, not in the sala of another judge of concurrent jur
isdiction.
Page 236 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


Objections to the legality of the search warrant and to the admissibility of the
evidence obtained are deemed waived when no objection to the legality of the se
arch warrant was raised during the trial. Section 14. Motion to quash a search w
arrant or suppress evidence; where to file REMEDIES OF PARTY ADVERSELY AFFECTED
BY A SEARCH WARRANT: 1. Motion to quash the search warrant with the issuing cour
t; or 2. Motion to suppress evidence with the court trying the criminal case. NO
TE: These remedies are ALTERNATIVE, hence if a motion to quash is denied, a moti
on to suppress evidence cannot be availed of subsequently NOTE: A third option w
ould be to file an action for replevin if the properties seized were lawfully po
ssessed. The Moncado Ruling, saying that illegally seized documents, papers and
things are admissible in evidence has already been ABANDONED. The exclusion of s
uch evidence is the only practical means of enforcing the constitutional injunct
ion against unreasonable searches and seizures. WHERE TO FILE MOTION TO QUASH WA
RRANT 1. May be filed and acted upon ONLY by the court where the action has been
instituted 2. If not criminal action has been instituted, MTQ may be filed with
the court who issued the warrant. However, if such court failed to resolve the
motion and a criminal action is subsequently filed in another court, the motion
shall be resolved by the latter court 2. 3. 4. 5. Injunction (Rule 58) Receivers
hip (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61)
Purpose of Provisional Remedies Provisional remedies are applied pending litigat
ion, to secure the judgment or preserve the status quo If provisional remedies a
re applied for after judgment, it is in order to preserve or dispose of the subj
ect matter. Although civil action is suspended until final judgment in the crimi
nal case, the court is not deprived of its authority to issue preliminary and au
xiliary writs which do not go into the merits of the case. Preliminary writs and
auxiliary writs referred to are those such as the ff: Preliminary injunction At
tachment Appointment of receiver Fixing amounts of bonds Section 2. Attachment A
TTACHMENT It is a remedy afforded to the offended party to have the property of
the accused attached as security for the satisfaction of any judgment that may b
e recovered from the accused CASES WHERE ATTACHMENT IS AVAILABLE: 1. When action
for recovery is on a cause of action arising from law, contract, quasicontract,
delict, or quasi-delict and accused is about to abscond from the Philippines; 2
. When the criminal action is based on a claim for money or property embezzled o
r fraudulently misapplied or converted to the use of the accused who is a public
officer, or any officer of a corporation, or an attorney, factor, broker, agent
, or clerk, in the course of his employment as such, or by any person in a fiduc
iary capacity, or for a willful violation of duty; 3. When the accused has conce
aled, removed or disposed of his property or is about to do so; 4. When action i
s against a party guilty of fraud in contracting the debt upon which action is b
rought, or in the performance of incurred obligation; 5. When action is against
a party who removed or disposed of his property or is about to do so, with inten
t to defraud his creditors; and
RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES QuickTime and a
TIFF (Uncompressed) decompressor are needed to see this picture.
Section 1. Availability of provisional remedies PROVISIONAL REMEDY It is one pro
vided for present need or one that is adopted to meet a particular exigency. PRO
VISIONAL REMEDIES UNDER THE RULES OF COURT: 1. Attachment (Rule 57)
Page 237 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


6. When the Philippines accused resides outside the
Mindanao Savings, etc. vs CA, 172 SCRA 480 (1989) No notice to the adverse party
or hearing on the application is necessary before a writ of preliminary attachm
ent may issue. This may be filed at the commencement of a criminal action or at
any time before entry of judgment as security for the satisfaction of any judgme
nt that may be recovered in the aforementioned cases. Public prosecutor has the
authority to apply for preliminary attachment as may be necessary to protect the
interest of the offended party.
QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.
Page 238 of 289