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CRIMINAL ACTION Determined by the allegations of the complaint
or information.
By examination of the complaint/information to
ascertain that the facts set out and punishment
A. IN GENERAL fall under jurisdiction of court. [People v. Ocaya
CRIMINAL ACTION - One by which the State
prosecutes a person for an act/omission
punishable by law.
The test to determine whether proceeding is
It is acquired either by the arrest of the
civil or criminal: If the proceeding is under a
accused or by his voluntary appearance in
statute such that if an indictment is presented
the forfeiture can be included in the criminal
Voluntary appearance is accomplished by
case, such proceeding is criminal in nature,
pleading to the merits.
although it may be civil in form [Sec. of Justice
Filing motion to quash (MTQ), unless on the
v. Lantion (2000)]
ground of LOJ of the court over the person
of the accused.
Appearing for arraignment.
Entering trial
1) There must be a court/tribunal clothed with
judicial authority to hear and determine the
matter before it.
General rule: The question of jurisdiction may
2) Jurisdiction must be lawfully acquired over the
be raised at any stage of the proceedings.
person of the defendant or property which is
Exception: The question may not be raised
the subject of the proceeding.
for the first time on appeal, where there
3) The defendant must be given an opportunity to
has been estoppel and laches on the party
be heard.
who raises the question.
4) Judgment must be rendered upon lawful
B. WHERE TO INSTITUTE 1) RTCs shall exercise exclusive original
jurisdiction in all criminal cases not within the
1. CRIMINAL JURISDICTION exclusive jurisdiction of any
court/tribunal/body. [Sec. 20, BP 129]
Definition: Authority of the court to hear and Exception: Those now falling under the
try a particular offense and to impose the exclusive and concurrent jurisdiction of the
punishment provided by law. Sandiganbayan, which shall hereafter be
Jurisdiction is vested in the court, not in the exclusively taken cognizance of by the
judges. [People v. Gorospe] latter. [Sec. 20, BP 129]
Inquiries into a courts jurisdiction: 2) SC may designate certain RTC branches to
1) WON the court has jurisdiction over the handle exclusively criminal cases, juvenile and
offense by virtue of the imposable penalty domestic relations cases, agrarian cases, urban
and its nature; land reform cases which do not fall under the
It is defined by law; determined by the jurisdiction of quasi-judicial bodies and
extent of the penalty which law agencies, and/or such other special cases as
imposes based on the facts as recited the SC may determine. [Sec. 23, BP 129]
in the complaint/information 3) Criminal cases where 1 or more of the accused
constitutive of the offense charged. is below 18 y/o but not less than 9 y/o, or
2) WON the action has been filed within the where 1 or more of the victims is a minor at
territorial jurisdiction of the court. the time of the commission of the offense.
Refers to venue or the place where the [Sec. 5, RA 8369]
case is to be tried. The action should be
instituted and tried in the municipality 3. MUNICIPAL TRIAL COURT
or territory where offense has been
committed or where any one of the 1) Exclusive original jurisdiction over all violations
essential ingredients thereof took place. of city/municipal ordinances committed within
General rule: The courts jurisdiction to try a their respective territorial jurisdiction. [Sec. 32
criminal action is to be determined by the law BP 129]
at the time of the institution of the action. 2) Exclusive original jurisdiction over all offenses
Succeeding legislation placing jurisdiction in punishable with imprisonment not exceeding 6
another tribunal will not affect jurisdiction years irrespective of the amount of fine, and
obtained by a court. regardless of other imposable accessory or
Exception: Where the succeeding statute other penalties, including the civil liability
expressly provides, or is construed that it is arising from such offenses or predicated
intended to operate to actions pending thereon, irrespective of kind, nature, value, or
before its enactment, in which the case the amount thereof. Provided, however, That in
court where the criminal action is pending offenses involving damage to property through
is ousted of jurisdiction and the pending criminal negligence they shall have exclusive
action will have to be transferred to the original jurisdiction thereof. [Sec. 32, BP 129]
other tribunal, which will continue the

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Exception: Cases falling within the 6) Philippine army and air force colonels,
exclusive original jurisdiction of RTCs and naval captains, and all officers of higher
of the Sandiganbayan. [Sec. 32, BP 129] rank.
3) Cases classified under the Revised Rules on 7) Officers of the PNP, while occupying the
Summary Proceedings: [SC Resolution, October position of provincial director and those
15, 1991] holding the rank of senior superintendent
a) Violations of traffic laws/rules/regulations; or higher.
b) Violations of rental law; 8) City and provincial prosecutors and their
c) Cases where the penalty prescribed by law assistants, and officials and prosecutors in
for the offense charged is imprisonment not the Office of the Ombudsman and special
exceeding 6 months, or a fine not prosecutors.
exceeding P1K, or both, irrespective of 9) Presidents/directors/trustees/managers of
other imposable penalties, accessory or GOCCs, state universities or educational
otherwise, or of the civil liability arising institutions/foundations.
therefrom: Provided, however, that in 10) Members of Congress and officials thereof
offenses involving damage to property classified as Grade 27 and up.
through criminal negligence, this Rule shall 11) Members of the judiciary, without prejudice
govern where the imposable fine does not to Constitutional provisions.
exceed P10K. 12) Chairmen and members of Constitutional
Commissions, without prejudice to
4. KATARUNGANG Constitutional provisions.
General rule: The offense must be intimately
connected with the office of the offender and
perpetuated while he was in the performance of
General rule: Parties have no power to enter
official functions. It has also been held to be
into amicable settlement as regards crimes.
the case if it cannot exist without the office, or
Exception: Offenses punishable by
if the office is a constituent element of the
imprisonment < 30 days, or a fine not
crime as defined in the statute
exceeding P200. [Sec. 2, PD 1508]
Exception: Election offenses, even if
General rule: If parties are residents of the
committed by public officers with grade 27
same barangay, then settle through the Lupon
or higher in relation to their office, shall fall
of that Barangay.
under the RTCs exclusive original
Exception: [Sec. 3, PD 1508]
jurisdiction. [Sec. 268, Omnibus Election
1) If residents of the different barangays
but in the same city/municipality, then
in barangay where respondent or any
of the respondents actually resides, at
the complainants election.
2) All disputes which involve real property General rule: Ordinary courts will have
(or any interest therein) shall be jurisdiction over cases involving members of
brought in the barangay where the real the armed forces, and other persons subject to
property (or any part thereof) is military law, including members of the Citizens
situated. Armed Forces Geographical Units who commits
The Lupon has no authority over disputes: crimes under the RPC or special laws,
[Sec. 3, PD 1508] regardless of who the co-accused or victims
1) Involving parties who actually reside in are.
barangays of different cities/municipalities, Exception: When, as determined by the
except where such barangays adjoin each ordinary court during arraignment, the
other. offense is service-oriented, then it will be
2) Involving real property located in different tried by the court martial. Provided: the
municipalities. President may, in the interest of justice,
order/direct at any time before arraignment
that any such crimes/offenses be tried by
the proper civil courts.
Officials under the exclusive jurisdiction of the
Sandiganbayan: 7. VENUE
1) Those expressly enumerated in PD 1606,
as amended by RA 8249; Violations of RA General rule: Institute in the court of the
3019 (Anti-Graft and Corrupt Practices municipality/territory where the offense was
Act), RA 1379 and Chapt. 2, Sec. 2, Title 7, committed or where any of its essential
Book 2, RPC. ingredients occurred. [Rule 110, Sec. 15]
2) Officials of the executive branch, occupying Exception:
salary grade 27 and higher. 1) If the offense is committed in a vehicle
3) Provincial governors, vice-governors, in the course of its trip, action may be
members of the sangguniang panlalawigan instituted and tried in the court of any
and provincial treasurers, assessors, municipality/territory where such
engineers and other provincial department vehicle passed during its trip, including
heads. the place of its departure and arrival.
4) City mayors, vice-mayors, members of the 2) If the offense is committed on board a
sangguniang panlungsod, city treasurers, vessel in the course of its voyage, the
assessors engineers and other city criminal action shall be instituted and
department heads. tried in the court of the 1st port of
5) Officials of the diplomatic service occupying entry or of any municipality/territory
the position of consul and higher. where the vessel passed during such

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voyage, subject to the generally Information is valid when signed by prosecutor

accepted principles of international law. who has authority to conduct PI of the offense
3) If under Art. 2, RPC, then cognizable by committed within his jurisdiction.
the court where the criminal action is Variance between the complaint filed by the
1st filed. offended party and the information in crimes
To determine the correct venue, the vital point against chastity, the complaint controls.
is the allegation of the situs of the offense [People v. Oso]
charged in the information. The "complaint" referred to in Rule 110
Venue is jurisdictional, being an essential contemplates one filed in court, not with the
element of jurisdiction. The allegation of the fiscal. In that case, the proceeding must be
place where the offense was committed and started by the aggrieved party himself. For as
where the offended party resided are essential a general rule, a criminal action is commenced
elements to determine venue. [Agbayani v. by complaint or information, both of which are
Sayo] filed in court. In case of a complaint, it must
Two places may have concurrent jurisdiction if be filed by the offended party; with respect to
there are two possible venues of the action. an information, it is the fiscal who files it. But
But the choice of venue lies with the a "complaint" filed with the fiscal prior to a
prosecuting officer and not with the accused. judicial action may be filed by any person.
[Catanguib v. CA] [Ebarle v. Sucaldito]
A person charged with a transitory crime may
be validly tried in any municipality/province REQUIREMENTS OF A COMPLAINT OR
where the offense was in part committed. In
INFORMATION [Rule 110, Sec. 6]
transitory/continuing offenses in which some
acts material and essential to the crime and
Purpose: To inform the accused of the nature
requisite to its consummation occur in one
and cause of the accusation against him, which
province and some in another, the court of
is a constitutional right. The objectives of the
either province has jurisdiction to try the case,
right are:
it being understood that the first court taking
1) to furnish the accused with such a
cognizance of the case will exclude the others
description of the charge against him as
[People v. Grospe]
will enable him to make the defense
2) to avail himself of his conviction or
C. HOW INSTITUTED acquittal for protection against further
prosecution for the same cause;
COMPLAINT 3) to inform the court of the facts alleged, so
that it may decided whether they are
Definition: A sworn written statement sufficient in law to support a conviction, if
charging a person with an offense, subscribed should be had.
by the offended party, any peace officer or
other public officer charged with the 1. NAME OF THE ACCUSED [Rule 110,
enforcement of the law violated. [Rule 110, Sec. 7]
Sec. 3]
Persons authorized to file the complaint: It must include the name and surname of the
1) offended party accused, as well as any appellation or
2) any peace officer nickname by which he has been or is known.
3) other public officer charged with the If the name cannot be ascertained, he must be
enforcement of the law violated described under a fictitious name with a
Criminal cases under the Revised Rules on statement that his true name is unknown. His
Summary Procedure shall be either by true name will be inserted if eventually
complaint or by information; provided that in disclosed or appears in some manner to the
MM and in chartered cities the criminal action court.
may only be commenced by the filing of If there are more than 1 accused, name all of
information (which means by the prosecutor), them. [Rule 110, Sec. 6]
except when the offense cannot be prosecuted
The complaint must be under oath. But lack of [Rule 110, Sec. 8]
oath is not a formal defect and will not
invalidate a judgment.
Aver the acts and omissions constituting the
offense. Specify the qualifying and aggravating
INFORMATION circumstances.
This is a procedural requirement to safeguard
Definition: An accusation in writing, charging the right of the accused to be informed of the
a person with an offense, subscribed by the nature and cause of the accusation against
prosecutor and filed with the court. [Rule 110, him. An information is legally viable as long as
Sec. 4] it distinctly states the statutory designation of
It is filed by the prosecutor and need not be the offense and the acts or omissions thereof.
under oath. But it must be signed and In case of conflict between the designation of
subscribed by the by the fiscal/prosecutor. the crime and the recital of facts constituting
What the prosecutor signs under oath is the offense, the latter prevails over the former.
certification that he has conducted the It is essential to avoid surprise on the accused
required preliminary investigation (PI). and to afford him the opportunity to prepare
Lack of certification does not invalidate his defense accordingly. Further, the right
judgment. [People v. Bulaong (1981)] becomes more compelling for an accused to be
confronted with the facts constituting the

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essential elements of the offense charged

against him, if he is not to become an easy 4. NAME OF THE OFFENDED PARTY
pawn of oppression and harassment, or of [Rule 110, Sec. 12]
negligent/misguided official action. The
sufficiency of an Information is determined 1) If an offense against person: Name and
solely by the facts alleged therein. [People v. surname; nickname/appellation; fictitious
Purisima (1978)] name, if real name is unknown.
2) If an offense against property:
3. ACTS/OMISSIONS CONSTITUTING a) If name is unknown, particularly describe
THE OFFENSE [Rule 110, Sec. 9] the property to identify the offense;
b) If the name is later known, insert it;
It must be in ordinary or concise language, c) If a juridical person, name or known name;
sufficient to enable a person of common without need to aver that it is juridical.
understanding to know what offense is being Where the name of the injured party is
charged. This must be done both for the necessary as matter of essential description of
offense charged and the circumstances the crime charged, the complaint must invest
involved in its commission. such person with individuality by either naming
Purpose: him or alleging that his name is unknown. It is
1) To enable a person of common elementary that in crimes against property,
understanding to know what offense is ownership must be alleged as matter essential
intended to be charged; to the proper description of the offense. [US v.
2) To enable the court to pronounce proper Lahoyhoy]
The accused cannot be found guilty of an 5. DATE OF THE OFFENSE [Rule 110,
offense which has not been alleged. Sec. 11]
The new rule requires that the qualifying and
aggravating circumstances be alleged in the General rule: The precise date is not
information. If the qualifying and aggravating necessary.
circumstances are not alleged, but proved, the Exception: When the date is a material
court cannot appreciate the same in imposing ingredient of the offense.
the penalty and qualifying the offense, As long as the alleged date is not so remote or
respectively. far removed from the actual date so as to
General rule: Where the law alleged to have surprise and prejudice the accused, then the
been violated prohibits generally acts therein information is valid. The determinative factor in
defined and is intended to apply to all persons the resolution of the question involving a
indiscriminately, but prescribes certain variance between allegation and proof in
limitations/exceptions from its violation, the respect of the date of the crime is the element
indictment/information is sufficient if it alleges of surprise on the part of the accused and his
facts which the offender did as constituting a inability to defend himself properly.
violation of law, without explicitly negating the The allegation in the information of on or
exception, as the exception is a matter of about the year 1992 is defective as it violates
defense which the accused has to prove. Rule 110, Sec. 11 and the accuseds right to be
Exception: Where the statute alleged to informed of the nature and cause of the
have been violated applies only to specific accusation against him, because the phrase not
classes of persons and special conditions only includes 12 months of the year 1992 but
and the exemptions from its violation are also years prior and subsequent to 1992.
so incorporated in the language defining Defect in the date is not a ground for MTQ
the crime that the ingredients of the under Rule 116. The remedy against an
offense cannot be accurately and clearly set indictment that fails to allege the time of
forth if the exemption is omitted, then the commission of the offense with sufficient
indictment must show that the accused definiteness is a motion for a bill of particulars
does not fall within the exemptions. under Rule 116, Sec. 6. The accused may also
If the exception is needed for defining the file a MTQ on the ground that allegations are so
offense, then the information should vague and the time of commission of the
negative the exception. [US v. Chan Toco offense so remote that he is denied due
(1908)] process and the right to be informed of the
Where what is alleged in the information is a accusation against him.
complex crime and the evidence fails to support
the charge as to one of the component 6. PLACE OF COMMISSION OF THE
offenses, the defendant can only be convicted
OFFENSE [Rule 110, Sec. 10]
of the offense proven.
General rule: It is sufficient if it can be
understood that the offense (or some of its
General rule: The information must charge
essential ingredients) was committed within
only one offense.
jurisdiction of the court.
Exception: When the law prescribes a
Exception: If the particular place where it
single punishment for various offenses.
was committed:
Purpose: To give the accused the necessary
1) Constitutes an essential element of the
knowledge of the charge to enable him to
offense charged;
prepare his defense. Hence, when an
2) Is necessary for its identification.
information charges more than one offense, the
accused may file a MTQ on the ground of
duplicity of offenses.

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AMENDMENT OR SUBSTITUTION [Rule 110, 11) Preliminary injunction has been issued
Sec. 14] by the SC to prevent the threatened
unlawful arrest of petitioners.
General rule: It must be made before the WHO PROSECUTES
accused enters his plea.
Exception: If the amendment downgrades General rule: The action must be prosecuted
the nature of the offense charged in, or under the direction and control of the
excludes any accused from, the prosecutor.
complaint/information, it can be made only The public prosecutor is a quasi-judicial
upon motion of the prosecutor, with notice officer and a representative of a
to the offended party and with leave of sovereignty whose obligation to govern
court. impartially is as compelling as its obligation
to govern at all
AMENDMENT WITH LEAVE OF COURT Exception: When there is lack of public
It may be made after plea and during trial; but prosecutors or heavy workload, the private
it should not cause prejudice to the rights of prosecutor may be authorized in writing by
the accused. the Chief of the Prosecution Office or the
The test as to WON a defendant is prejudiced Regional State Prosecution to prosecute the
by the amendment of an information is WON case subject to the courts approval. The
a defense under the information as it originally authority will continue until revoked or
stood would be available after the amendment withdrawn.
is made, and WON any evidence defendant
might have would be equally applicable to the IN APPEALS, THE SOLICITOR GENERAL (OSG) HAS
information in the one form as in the other. CONTROL
[People v. Casey] General rule: The OSG shall represent the
People of the Philippines in criminal actions
SUBSTITUTION brought to the CA and the SC.
When there is mistake in charging the proper Exception: In all cases elevated to the
offense, the court shall dismiss the original Sandiganbayan and from the
complaint/information upon the filing of a new Sandiganbayan to the SC, the Office of the
one charging the proper offense, provided Ombudsman (through its special
accused is not placed in double jeopardy. prosecutor) shall represent the People,
except in cases filed pursuant to EC Nos.
1,2,4, and 14-A issued in 1986.
Art. 344, RPC states what crimes cannot be
General rule: Writs of injunction/prohibition prosecuted de officio.
will not lie to restrain (either through It includes defamation which consists in the
preliminary or final injunction or writ of imputation of a crime which cannot be
prohibition) a criminal prosecution. prosecuted de oficio.
Rationale: Public interest requires that Note: Rape is no longer a private crime
criminal acts be immediately investigated and may thus be prosecuted even without
and prosecuted for the protection of the consent/initiative of the offended party.
society. PRIVATE CRIMES Those which cannot be
Exception: prosecuted except upon complaint filed by the
1) When injunction is justified by aggrieved/offended party. They are also crimes
necessity to afford protection to the against the State and the law imposes the
constitutional rights of the accused; condition that there be a complaint by an
2) When necessary for the orderly aggrieved party out of consideration of the
administration for justice or to avoid aggrieved partys preferring to suffer the
multiplicity of actions; outrage in silence rather than go through the
3) When there is a prejudicial question scandal of public trial.
which is sub judice;
4) When the acts of the officer are without
or in excess of authority;
5) Where the prosecutions is under an COMPLAINT
invalid law/ordinance/regulation;
6) When double jeopardy is clearly 1) In adultery and concubinage The offended
apparent; spouse. Both guilty parties should be included if
7) Where the court has no jurisdiction both are alive.
over the offense; 2) In seduction, abduction and acts of
8) Where it is a case of persecution rather lasciviousness The victim herself, her
than prosecution; parents, grandparents or guardian (in that
9) Where the charges are manifestly false order).
and motivated by the lust for a) If the victim is of legal age and has no
vengeance; incapacity - The victim alone; parents or
10) Where there is clearly no prima facie grandparents are precluded from filing the
case against the accused and MTQ on complaint.
that ground has been denied;

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b) If victim is a minor, or of age but suffers General rule: Pardon must be made before
from incapacity The parents, the filing of the criminal complaint in court.
grandparents or legal guardian, even if the If there are more than one accused, the
offended party does not wish to file the pardon must be extended to all offenders.
complaint. Exception: Marriage between offender and
3) In rape The minor has the right to initiate the offended party.
complaint independently of parents and Pardon or express condonation has the effect of
guardians, unless incompetent/incapable upon waiving the civil liability with regard to the
grounds other than minority. If minor initiates interest of the injured party. For liability arising
the complaint, the father/guardian/grandfather from an offense is extinguished in the same
cannot withdraw complaint. manner as other obligations.


The complaint starts the prosecutory OFFENDED PARTY [Rule 110,
proceeding; but it does not vest jurisdiction, as Sec. 16]
jurisdiction is vested in the court by the law.
The complaint is only a condition precedent for When the civil action is instituted together with
the exercise by proper authorities of the power the criminal action according to Rule 111, then
to prosecute. the offended part may intervene by counsel in
The failure to raise the issue as to WON there the prosecution of the offense.
has been a valid complaint filed by the Party includes not only the government but
offended party at the trial court is a waiver of other persons as well, such as the complainant
the issue. who may be affected by the judgment rendered
in the criminal proceedings. [People v. Madali


Once a complaint is filed, the will of the
offended party is ascertained and the action
General rule: An offended party has the right
proceeds. Death after filing the complaint
to intervene in the prosecution of a crime.
would not deprive the court of the jurisdiction
to try the case
1) Where, from the nature of the crime
The State shall initiate the action on behalf of
and the law defining and punishing it,
the offended party, in case of his
no civil liability arises in favor of a
death/incapacity and he has no known
private offended party.
2) Where, from the nature of the offense,
In adultery/concubinage, such death does not
the private offended party is entitled to
extinguish the criminal liability of accused.
civil indemnity arising therefrom but he
has waived the same or has expressly
EFFECT OF DESISTANCE BY OFFENDED reserved his right to institute a
PARTY separate civil action or he has already
instituted such action.
It does not bar the People of the Philippines Any move on the part of the complainant or
from prosecuting the criminal action, but it offended party to dismiss the criminal case,
operates as a waiver of the right to pursue civil even if without objection of the accused, should
indemnity. first be referred to the prosecuting fiscal for his
An affidavit of desistance cannot justify own view on the matter. He controls the
dismissal of the complaint if made after (and prosecution of the case and may have reasons
not before) the institution of the criminal why the case should not be dismissed.
action. [Republic v. Sunga]


In rape, seduction, abduction and acts of OR INFORMATION
lasciviousness of a minor The pardon will be
effective if given by both parents and the 1) Amendment or substitution;
offended party. 2) MTQ; [Rule 117, Sec. 4]
In seduction, abduction and acts of 3) When defect becomes apparent during trial,
lasciviousness - Express pardon by the before judgment. [Rule 119, Sec. 19]
offended party, parents, grandparents or
guardian will prevent prosecution. [Rule 110,
Sec. 5]
The parents/grandparents/guardian of the
offended minor (in that order) cannot extend a
valid pardon without conformity of the offended
party, even if the latter is a minor. [US v.
If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.

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II. PROSECUTION OF THE CIVIL party, his family or a 3rd person by reason of
the crime. [Art. 107, RPC]
Many legal scholars treat as a misconception or
General rule: When a criminal action is fallacy the generally accepted notion that the
instituted, the civil action for the recovery of civil liability actually arises from the crime
damages is deemed instituted with the criminal when, in the ultimate analysis, it does not.
action. [Rule 111, Sec. 1] While an act/omission is felonious because it is
Exception: If the offended party: punishable by law, it gives rise to civil liability
1) Waives the civil action; not so much because it is a crime but because
2) Reserves the right to institute it it caused damage to another. Viewing things
separately; pragmatically, we can readily see that what
Exception: gives rise to the civil liability is really the
a) Claims arising out of a obligation and the moral duty of everyone to
dishonored check under BP 22 repair or make whole the damage caused to
where no reservation to file another by reason of his own act/omission,
such civil action separately done intentionally or negligently, WON the
shall be allowed. same be punishable by law. In other words,
b) Claims arising from an offense criminal liability will give rise to civil liability
which is cognizable by the only if the same felonious act/omission results
Sandiganbayan. [Sec. 4, PD in damage/injury to another and is the direct
1606, as amended by RA 8249] and proximate cause thereof. Damage/injury to
3) Institutes the civil action prior to the another is evidently the foundation of the civil
criminal action. action. Such is not the case in criminal actions
An offended party loses his right to intervene in for, to be criminally liable, it is enough that the
the prosecution of a criminal case, not only act/omission complained of is punishable,
when he has waived the civil action or regardless of WON it also causes material
expressly reserved his right to institute, but damage to another. [Banal v. Tadeo]
also when he has actually instituted the civil Underlying the legal principle that a person who
action. For by either of such actions his interest is criminally liable is also civilly liable is the
in the criminal case has disappeared. [Garcia v. view that from the standpoint of its effects, a
Florido] crime has dual character: (1) as an offense
against the state because of the disturbance of
RESERVATION TO FILE SEPARATE CIVIL ACTION the social order; and (2) as an offense against
The reservation of the right to institute the private person injured by the crime unless
separately the civil action shall be made before it involves the crime of treason, rebellion,
the prosecution starts presenting its evidence espionage, contempt and others wherein no
and under circumstances affording the offended civil liability arises on the part of the offender
party a reasonable opportunity to make such either because there are no damages to be
reservation. compensated or there is no private person
Procedure for making the reservation: injured by the crime. [Occena v. Icamina]
1) Filing a manifestation in the criminal case
that the offended party is reserving his SEPARATE, SIMULTANEOUS AND
right to file a separate civil action;
2) Filing the separate civil action and
informing the court trying the criminal case
that the offended party has filed a separate Reservation is not necessary.
civil action. Active participation in the prosecution of the
The rule requiring reservation does not apply to criminal case does not bar the filing of an
Art. 32-34 and 2176, CC. These civil actions independent and separate civil action for
can be filed and prosecuted independently of damages under Art. 29, CC. The civil action
the criminal action. based on criminal liability and a civil action
No counterclaim, cross-claim or 3rd-party under Art. 29 are two separate and
complaint may be filed by the accused in the independent actions [Bonete v. Zosa]
criminal case, but any cause of action which When allowed:
could have been the subject thereof may be 1) The guilt of the accused is not proven
litigated in a separate civil action. [Rule 111, beyond reasonable doubt. [Art. 29, CC]
Sec. 1] 2) Violation by a public officer of the following
a) Freedom of religion;
b) Freedom of speech;
1) RESTITUTION - Returning of the thing itself,
c) Freedom to write for the press or to
with allowance for deterioration or diminution
maintain a periodical publication;
of value. [Art. 105, RPC]
d) Freedom from arbitrary/illegal
2) REPARATION - Payment of damage caused,
taking into consideration the sentimental value
e) Freedom of suffrage;
of the thing to the injured party. [Art. 106,
f) The right against deprivation of
property without due process of law;
g) The right to a just compensation when
consequential damages suffered by the injured
private property is taken for public use;

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h) The right to the equal protection of the 3) Consolidation with the criminal action.
laws; Before final judgment in the civil case, it
i) The right to be secure in one's person, may be consolidated with the criminal
house, papers, and effects against action, upon motion by the offended party.
unreasonable searches and seizures; The evidence in civil case shall be
j) The liberty of abode and of changing automatically reproduced in the criminal
the same; case without prejudice to the right of the
k) The privacy of communication and prosecution to cross-examine witnesses
correspondence; presented by the offended party and for the
l) The right to become a member of parties to adduce additional evidence. [Rule
associations/societies for purposes not 111, Sec. 2 par. 2]
contrary to law; 4) Tolling of prescriptive period.
m) The right to take part in a peaceable During the pendency of the criminal action,
assembly to petition the government the running of the prescriptive period of the
for redress of grievances; civil action that cannot be instituted
n) The right to be free from involuntary separately or has been suspended shall be
servitude in any form; tolled. [Rule 111, Sec. 2 par. 3]
o) The right of the accused against
p) The right of the accused to be heard by
himself and counsel, to be informed of General rule: It will not cause the extinction
the nature and cause of the accusation of the civil action.
against him, to have a speedy and Exception: Civil action based on delict
public trial, to meet the witnesses face may be deemed extinguished if there is a
to face, and to have compulsory finding in a final judgment in the criminal
process to secure the attendance of action that the act/omission from which the
witness in his behalf; civil liability may arise does not exist. [Rule
q) Freedom from being compelled to be a 111, Sec. 2 last par.]
witness against one's self, or from
being forced to confess guilt, or from
being induced by a promise of EFFECT OF DEATH ON CIVIL ACTION [Rule
immunity or reward to make such 111, Sec. 4]
confession, except when the person
confessing becomes a State witness; 1) If death is before arraignment Dismissal of
r) Freedom from excessive fines, or cruel case without prejudice to filing of civil action
and unusual punishment, unless the against estate of the deceased.
same is imposed or inflicted in 2) If death is after arraignment and during
accordance with a statute which has pendency of criminal action Extinguishes civil
not been judicially declared liability.
unconstitutional; and Exception: Independent civil actions,
s) Freedom of access to the courts. which may be brought against the estate of
3) Cases of defamation, fraud and physical the deceased or legal representative after
injuries. proper substitution.
4) When a member of a city/municipal police
force refuses/fails to render aid/protection EFFECT OF THE CIVIL ACTION
to any person in case of danger to JUDGMENT, ON THE CRIMINAL ACTION
life/property. [Rule 111, Sec. 5]
5) Quasi-delict.
A quasi-delict case may be brought by If the civil action judgment absolves the
the offended party even if he has not defendant, it does not bar criminal action
reserved the right to institute a civil against the defendant for the same act or
case because the quasi-delict case is omission.
independent of the criminal case
[Parker v. Panlilio]
ACTION Administrative cases are independent from
criminal actions for the same act/omission.
1) Bar to civil action. [People v. Toledano]
If the criminal action was already
commenced, the civil action arising EXISTENCE OF PREJUDICIAL QUESTION
therefrom cannot be instituted until final
judgment of the criminal case. [Rule 111,
Sec. 2 par. 1] General rule: Where both a civil and a
Double recovery of damages arising from criminal case arising from the same facts are
the same act/omission is prohibited. [Art. filed in court, the criminal case takes
2177, CC] precedence.
2) Suspension of civil action. Exception: If there exists a prejudicial
If the criminal action is filed after the civil question which should be resolved first
case has already been instituted, the civil before an action could be taken in the
case may be suspended in whatever stage criminal case.
it is until final judgment of the criminal PREJUDICIAL QUESTION - That which arises
case. [Rule 111, Sec. 2 par. 2] in a case the resolution of which is a logical
antecedent of the issue involved therein, and

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the cognizance of which pertains to another III. PRELIMINARY

tribunal. The prejudicial question must be
determinative of the case before the court but INVESTIGATION [Rule 112, as
the jurisdiction to try and resolve the question amended by AM 05-8-26-SC (effective
must be lodged in another court or tribunal. It October 3, 2005)]
is a question based on a fact distinct and
separate from the crime but so intimately DEFINITION
connected with it that it determines the guilt or
innocence of the accused. [Ras v. Rasul]
An inquiry/proceeding to determine WON there
Elements: [Rule 111, Sec. 7]
is sufficient ground to engender a well-founded
1) Previously initiated civil action involves
belief that a crime has been committed and the
an issue similar or intimately related to
respondent is probably guilty thereof, and
the issue raised in the subsequent
should be held for trial. [Rule 112, Sec. 1]
criminal action;
It is an executive function, although the
2) The resolution of such issue determines
prosecutor is a quasi-judicial authority. He is
WON the criminal action may proceed.
tasked to determine WON a criminal case must
With whom to file petition:
be filed in court
1) Office of the prosecutor;
Even if an executive function, it is considered a
2) Court conducting the PI.
judicial inquiry, a judicial proceeding as it
involves opportunity to be heard on the part of
FILING FEES the complainant and the respondent, the
production and weighing of evidence and
Filing fees of the civil action are deemed decision, and as prosecutor acts as quasi-
instituted in criminal action. judicial officer.
No filing fees are required for amounts of Purpose:
actual damages, except as otherwise provided 1) To inquire concerning the commission of
(i.e. BP 22 cases). the crime and the connection of accused
Moral, exemplary and other damages should be with it, in order that he may be informed of
specified in complaint and corresponding filing the nature and character of the crime
fees should be paid, otherwise the trial court charged against him, and if there is
will not acquire jurisdiction over such other probable cause in believing him guilty, that
damages. the state may take the necessary steps to
Where moral, exemplary and other damages bring him to trial;
are not specified in the complaint/information, 2) To preserve the evidence and keep the
the grant and amount are left to the sound witnesses within the control of the state;
discretion of the trial court, the corresponding 3) To determine the amount of bail, if the
filing fees need not be paid and shall simply offense is bailable;
constitute a first lien on the judgment. 4) Principally, to determine WON a crime has
been committed and WON there is probable
cause to believe that the accused is guilty.
It is to secure the innocent against hasty,
malicious and oppressive prosecution, and
to protect him from an open and public
accusation of a crime, from the trouble,
expense, anxiety of a public trial, and also
protect the state from useless and
expensive trials. It is intended to protect
the accused from the inconvenience,
expense and burden of defending himself in
a formal trial unless the reasonable
probability of his guilt shall have been first
ascertained in a fairly summary proceeding
by a competent officer. It is also intended
to protect the state from having to conduct
useless and expensive trials. [Tandoc v.
Absence of PI does not:
1) Impair validity of the information;
2) Render it defective;
3) Affect the courts jurisdiction;
4) Constitute ground for quashing the
Absence of a PI does not impair the validity of
the information. If the courts attention is called
to absence of PI, the court should suspend the
proceedings and remand the case to
prosecutor. Absence of PI does not go into the
jurisdiction of the court, but merely to the
regularity of proceedings.
The rule is that the right to PI is waived when
the accused fails to invoke it before or at the
time of entering a plea at arraignment. [Go v.

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If the accused invokes the right to PI but the government official authorized to
trial judge nonetheless proceeds with the administer oath or notary public.
arraignment over the objection and required 2) Action of the investigating officer. [Rule 112,
the prosecutor to present evidence, the Sec. 3(b)]
arraignment and presentation of some Investigating officer must act within 10
witnesses does not amount to a waiver of the days after the filing of the complaint. He
said right. will either:
a) Dismiss - If he finds no ground to
WHEN REQUIRED continue investigation;
b) Issue a subpoena to the respondent,
General rule: PI is required to be conducted attaching the complaint and other
before a complaint/information is filed for an documents.
offense where the penalty prescribed by law is If subpoena is not possible, the
at least 4 years, 2 months and 1 day, without investigating officer shall decide
regard to the fine. [Rule 112, Sec. 1, par. 2] based on what complainant
Exception: When a person is lawfully presented.
arrested without a warrant involving an Respondent has the right to
offense that requires a PI, a examine the evidence submitted by
complaint/information may be filed without complainant, and copy evidence at
conducting the PI if the necessary inquest his expense.
is conducted. In the absence or 3) Defendants counter-affidavit. [Rule 112, Sec.
unavailability of an inquest prosecutor, the 3(c)]
complaint may be filed by the offended It must me made within 10 days from
party or by a peace officer directly with the receipt of complaint, and must comply with
proper court on the basis of the affidavit of the same requirements as a complaint.
the offended party or arresting officer or 4) Hearing. [Rule 112, Sec. 3(e)]
person. The investigator must conduct a hearing
However, before the complaint/ within 10 days from receipt of the counter-
information is filed, the person arrested affidavit. The hearing must be finished in 5
may ask for a PI, but he must sign a days.
waiver of the provisions of Art. 125, Hearing is conducted only if there are such
RPC in the presence of his counsel. facts and issues to be clarified from a party
Notwithstanding the waiver, he may or a witness.
apply for bail and the investigation Parties may be present evidence, but they
must be terminated within 15 days have no right to examine or cross-examine.
from its inception. Questions of parties shall be submitted to
After the filing of the the investigating officer.
complaint/information in court without Within 10 days, the officer shall determine
a PI, the accused may within 5 days WON there is sufficient ground to hold
from the time he learns of its filing, ask respondent for trial.
for a PI with the same right to adduce 5) Resolution. [Rule 112, Sec. 4]
evidence in his defense as provided in If the investigating officer finds no PC, he
Rule 112. [Rule 112, Sec. 6] will dismiss the case. Otherwise, he will
prepare an information and resolution.
PROBABLE CAUSE (PC) For purposes of
filing an information by the prosecutor, it is
the existence of such facts and
1) Provincial/city prosecutors and their assistants;
circumstances as would excite the belief, in
2) National and regional state prosecutors;
a reasonable mind acting on the facts
3) Other officers as may be authorized by law.
within the knowledge of the prosecutor,
that the person charged was guilty of the
The authority shall include crimes cognizable by
crime for which he was prosecuted.
the proper courts in their respective
Probable cause and prima facie evidence
are different. Prima facie evidence denotes
COMELEC may conduct investigation as regards
evidence which, if unexplained/
election offenses. [Art. 9-C, Sec. 2(6), Consti;
uncontradicted, is sufficient to sustain a
Sec. 265, Omnibus Election Code]
proposition, as to counterbalance the
The Ombudsman may conduct an investigation
presumption of innocence and warrant the
when the case is not under the jurisdiction of
conviction of the accused.
the Sandiganbayan. [Art. 11, Sec. 12, Consti]
He certifies in the information that he is an
The Ombudsman can act on a complaint in
authorized officer; that he personally
any form; and there is no right to appeal
examined the complainant and witnesses;
from his resolution.
that there is reasonable ground to believe
that a crime has been committed and that
PROCEDURE the accused is probably guilty thereof; that
the accused was informed of the complaint
1) Filing of the complaint. [Rule 112, Sec. 3(a)] and of the evidence submitted against him;
The complaint must state the respondents and that he was given an opportunity to
address. It must include the affidavits of submit controverting evidence.
complainant and the witnesses, and other 6) Review. [Rule 112, Sec. 4]
documents to establish probable cause. Within 5 days from resolution, the
It must be in 2 copies, and subscribed and investigating officer will forward the case to
sworn to before a prosecutor or the prosecutor or the ombudsman.

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Within 10 days from receipt of the the accused had already been arrested)
resolution, the prosecutor/ombudsman will and hold him for trial.
act on the case. However, if the judge is satisfied that
The prosecutor/ombudsman has to there is no need to place the accused
authorize/approve the filing of an under custody, he may issue summons
information by the investigating officer. instead.
In case of dismissal by investigating officer,
the prosecutor/ombudsman, if he
disagrees, may file the information himself
or any deputy or order any prosecutor to
do so without conducting a new PI.
The DOJ Secretary may file the information
or dismiss the information filed by the
7) Filing of information/complaint in court. [Rule
112, Sec. 5]
Within 10 days from the filing of
complaint/information, the judge may:
a) Dismiss the case, if he thinks there is
no PC.
b) Otherwise, issue a warrant of arrest (if
Warrant of arrest is not necessary
when respondent is already
detained or if the offense is
punishable by fine only.
c) Order presentation of additional
evidence within 5 days from notice and
issue, if he has doubt regarding the
existence of PC. He must resolve it
within 30 days from filing of complaint/


Sec. 7]

General rule: PI record does not form part of

the case record.
Exception: The court may order the
production of the PI record (or part
1) When necessary in the resolution of the
case or any incident therein;
2) When it is to be introduced as an
evidence in the case by the requesting


[Rule 112, Sec. 8]

1) For cases punishable by imprisonment of less

than 4 years, 2 months and 1 day, filed with
the prosecutor or MTC/MCTC, follow the
procedure steps #1 - #5 outlined above if.
2) Within 10 days after the filing of the
complaint/information, if the judge finds no PC
after personally evaluating the evidence or
after personally examining in writing and under
oath the complainant and his witnesses in the
form of searching questions and answers, he
shall dismiss the same.
3) However, the judge may require the
submission of additional evidence within 10
days from notice, to determine further the
existence of PC.
a) If the judge still finds no PC despite the
additional evidence, he shall dismiss the
case within 10 days from its submission or
expiration of said period,
b) If the judge finds PC, he shall issue a
warrant of arrest or a commitment order (if

100% UP LAW UP BAROPS 2008 Page 11 of 227



1) Upon the filing of the information by the public
prosecutor and after personal evaluation by the
DEFINITION judge of the prosecutors resolution and
supporting evidence. [Rule 112, Sec. 6(a)]
ARREST Taking of a person into custody in The judge does not have to personally
order that he may be bound to answer for the examine the complainant and his
commission of an offense. [Rule 113, Sec. 1] witnesses. The prosecutor can perform the
Ordinarily, an invitation to attend a hearing and same functions. [Soliven v. Makasiar]
answer some questions, which the person Bare certification by the fiscal is not
invited may heed or refuse at his pleasure, is enough. It should be supported by a report
not illegal or constitutionally objectionable. and necessary documents. [Lim v. Felix
However, where the invitation comes from a (1991)]
powerful group composed predominantly of 2) Upon application of a peace officer and after
ranking military officers issued at a time when personal examination by the judge of the
the country has just emerged from martial rule applicant and the witnesses he may produce.
and when the suspension of the privilege of the [Rule 112, Sec. 6(b)]
writ of habeas corpus has not entirely been Rationale: There is yet no evidence on
lifted, and the designated interrogation site is a record upon which judge may determine
military camp, the same can be easily taken, the existence of PC.
not as a strictly voluntary invitation which it Conditions:
purports to be, but as an authoritative a) The investigating judge must have
command which one can only defy at his peril. examined in writing and under oath the
Although in the guise of a request, it was complainant and his witnesses by
obviously a command or an order of arrest that searching questions and answers.
a person could hardly be expected to defy. b) He must be satisfied that PC exists;
[(Sanchez v. Demetriou (1993)] c) There is a need to place the respondent
under immediate custody in order not
MEANS OF ARREST to frustrate the ends of justice.
[Samulde v. Salvani (1988)]
1) By actual restraint of the person to be
arrested; A warrant of arrest has no expiry date. It is
2) By submission to the custody of the person only subject to the requirements found in
making the arrest. [Rule 113, Sec. 2, par. 1] Section 4, Rule 113.

No violence or unnecessary force shall be used EXECUTION OF WARRANT OF ARREST

in making an arrest. Person arrested shall not
be subject to a greater restraint than DUTY OF HEAD OF OFFICE TO WHOM THE
necessary. [Rule 113, Sec. 2, par. 2] WARRANT WAS DELIVERED FOR EXECUTION
Application of actual force, manual touching of To cause the warrant to be executed within 10
the body, physical restraint or a formal days from its receipt. [Rule 113, Sec. 4]
declaration of arrest is not required. It is
enough that there be an intent on the part of DUTIES OF THE ARRESTING OFFICER
one of the parties to arrest the other and an 1) To arrest the accused and deliver him to the
intent on the part of the other to submit, under nearest police station or jail without
the belief and impression that submission is unnecessary delay. [Rule 113, Sec. 3]
necessary. [Sanchez v. Demetriou (1993)] 2) To make a report to the judge who issued the
warrant. [Rule 113, Sec. 4]
IMMUNITY FROM ARREST Within 10 days after expiration of the
period to execute.
1) Senators and Members of the House of
Representatives, while Congress is in session TIME OF MAKING ARREST [Rule 113, Sec. 6]
and for offenses punishable by not more than 6
years imprisonment. [Art. 6, Sec. 11, Consti] Arrest may be made on any day and at any
2) Ambassadors and ministers of foreign time of the day or night.
countries. [RA 75]

ISSUANCE OF WARRANT OF ARREST The officer shall inform the person to be

arrested of the cause of the arrest and the fact
ESSENTIAL REQUISITES OF A VALID ARREST that the warrant has been issued for his arrest.
WARRANT [Art. 3, Sec. 2, Consti] Exception:
1) It must be issued upon PC which must be 1) When the accused flees or forcibly
determined personally by a judge after resists before the officer has the
examination under oath or affirmation of the opportunity to inform him;
complainant and the witnesses he may 2) When giving such information shall
produce. imperil the arrest of the accused.
2) The warrant must particularly describe the The warrant of arrest need not be in the
person to be seized. possession of the officer at the time of the
arrest. But after arrest, if the person arrested

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so requires, the warrant must be shown to him offense is based on actual facts.
as soon as practicable. [Posadas v. Ombudsman (2000)]
3) When the person to be arrested is a prisoner
RIGHTS OF THE ARRESTING OFFICER who has escaped: [Rule 113, Sec. 5(c)]
a) From a penal establishment or place where
1) To summon assistance. [Rule 113, Sec. 10] he is:
He may orally summon as many persons as (1) Serving final judgment;
he deems necessary to assist him in (2) Temporarily confined while his case is
effecting the arrest. pending.
Persons summoned shall assist in effecting b) While being transferred from one
the arrest when he can do so without confinement to another.
detriment to himself. Rationale: At the time of arrest, the
2) To break into any building/enclosure where the escapee is in continuous commission of a
person to be arrested is or is reasonably crime (i.e. evasion of service of sentence).
believed to be. [Rule 113, Sec. 11] 4) When a person who has been lawfully arrested
If he is refused admittance after escapes or is rescued. [Rule 113, Sec. 13)]
announcing his authority and purpose. 5) By the bondsman for the purpose of
Also applicable where there is a valid arrest surrendering the accused. [Rule 114, Sec. 23,
without a warrant. par. 1]
Rationale: Person to be arrested cannot When an accused released on bail attempts
use his house/building/enclosure as a to depart from the Philippines without
shelter for crime. The inviolability of permission of the court where the case is
domicile cannot be used to shield arrest. pending. [Rule 114, Sec. 23, par. 2]
3) To break out from the building/enclosure when
necessary to liberate himself. [Rule 113, Sec. MANNER OF ARREST
Also applicable where there is a valid arrest 1) By an officer The officer shall inform the
without a warrant. person to be arrested of his authority and the
4) To search the person arrested for dangerous cause of the arrest. [Rule 113, Sec. 8]
weapons or anything which may have been Exception:
used or constitute proof in the commission of a) The person to be arrested is engaged in
an offense. [Rule 126, Sec. 13] the commission of the offense;
Without need of a search warrant. b) He is pursued immediately after its
B. WARRANTLESS ARREST c) He escapes, flees or forcibly resists
before the officer has the opportunity
to so inform him;
INSTANCES OF LAWFUL WARRANTLESS d) Giving such information will imperil the
ARREST arrest.
2) By a private person - The private person shall
1) IN FLAGRANTE DELICTO Literally, caught inform the person to be arrested of the
in the act of committing a crime. When the intention to arrest him and the cause of the
person to be arrested has committed, is arrest. [Rule 113, Sec. 9]
actually committing or is attempting to commit Exception: Same as those for arrest by an
an offense in the presence of the peace officer officer.
or private person who arrested him. [Rule 113, The private person must deliver the
Sec. 5(a)] arrested person to the nearest police
In his presence means: [People v. station or jail, and he shall be proceeded
Evaristo (1992)] against in accordance with Rule 112, Sec.
a) He sees the offense, even though at a 7. Otherwise, the private person may be
distance; held liable for illegal detention.
b) He hears the disturbances created by
the offense and proceeds at once to the C. ILLEGAL ARREST
c) Offense is continuing or has been
Definition: If the arrest of a person is not
consummated at the time arrest is
justified by any of the instances of a
warrantless arrest under Rule 113, Sec. 5.
2) HOT PURSUIT ARREST - When an offense
The fact that the person arrested did not
has been committed and the peace officer or
actually commit the crime does not render the
private person has PC to believe based on
arrest illegal.
personal knowledge of facts or circumstances
that the person to be arrested has committed
Just implies immediacy in point of time
Personal knowledge must be based on PC 1) The documents/things/articles seized following
which means an actual belief or reasonable the illegal arrest are not admissible in
grounds of suspicion. evidence. They are considered fruits of the
The grounds of suspicion are poisonous tree.
reasonable when, in the absence of 2) The arresting person/officer may be held
actual belief of the arresting officer, the criminally liable for illegal arrest.
suspicion that the person to be arrested a) Unlawful arrest; [Art. 269, RPC]
is probably guilty of committing the b) Arbitrary detention. [Art. 124, RPC]
3) The arresting officer may be held civilly liable
for damages. [Art. 32, CC]

100% UP LAW UP BAROPS 2008 Page 13 of 227


It is not necessary that there should be bad V. CUSTODIAL INVESTIGATION

faith or malice. Such requisite would defeat
the main purpose of the provision which is
the effective protection of individual rights.
Definition: It involves the questioning initiated
4) The fact that the arrest was illegal does not
by law enforcement officers after a person has
render the subsequent proceedings void and
been taken into custody or otherwise deprived
deprive the State of its right to convict when all
of his freedom of action in any significant way.
the facts point to the culpability of the accused.
Custodial investigation begins where the
investigation is no longer a general inquiry into
CURING AN ILLEGAL ARREST an unsolved crime but has began to focus on a
particular suspect, the suspect has been taken
1) By filing of an information in court; and into police custody, and the police carry out a
2) Subsequent issuance by the judge of a warrant process of interrogation that lends itself to
of arrest. eliciting incriminating statements. [People v.
The accused may waive the illegality of his INVESTIGATION (CI)
arrest either expressly or impliedly.
The objection to illegality of arrest must be
made before arraignment in a MTQ; otherwise 1) The practice of issuing an "invitation" to a
it is deemed waived. [Rule 117, Sec. 9] person who is investigated in connection with
Filing of MTQ which includes other grounds an offense he is suspected to have committed.
does not amount to waiver. [Sec. 2, last par., RA 7438]
Application for or admission to bail does not 2) RE-ENACTMENT A demonstration by the
amount to waiver. [Rule 114, Sec. 26] accused of how he committed the crime. It is a
police contrivance designed to test the
truthfulness of the statements of the witness
who had confessed to the commission of the


1) Police line-up. [People v. Pavillare (2000)]

It is conducted before the CI, the purpose
of which is to identify the suspect among
many persons lined up.
Test employed in resolving the admissibility
of out-of-court identification of suspects;
requires the following factors to be
considered: [People v. Teehankee (1995)]
a) The witness opportunity to view the
criminal at the time of the crime;
b) The witness degree of attention at that
c) The accuracy of any prior description
given by the witness;
d) The level of certainty demonstrated by
the witness at the time of
e) The length of time between the crime
and the identification;
f) The suggestiveness of the procedure.
However, a one-on-one confrontation is
considered within the ambit of CI. This
method is as tainted as confession without
the presence of counsel. [People v. Teves
2) Ultraviolet ray examination.
Its purpose is to determine the presence of
ultraviolet powder and does not require
presence of counsel.


[Sec. 2, RA 7438]

1) To be assisted by counsel at all times.

Waiver of the right to counsel must be
made with the assistance of counsel. [Art.
3, Sec. 12(1), Consti]
Specifically in the following instances:
a) Signing of the written custodial report;

100% UP LAW UP BAROPS 2008 Page 14 of 227


b) Signing of the written extra-judicial

In the absence of counsel and upon Definition: The security given for the release
valid waiver, it may be made in the of a person in custody of the law, furnished by
presence of any his parents, elder him or a bondsman, to guarantee his
brothers and sisters, spouse, the appearance before any court as required under
municipal mayor, the municipal conditions hereinafter specified. [Rule 114,
judge, district school supervisor, or Sec. 1]
priest/minister of the gospel as
chosen by him. CONCEPT AND PURPOSE
c) Signing of the waiver to the provisions
of Art. 125, RPC. Implementation of the right to bail under the
2) To be informed, in a language known to and constitution. [Art. 3, Sec. 13, Consti]
understood by him, of his rights to remain Flows from the presumption of innocence.
silent and to have competent and independent [Paderanga v. CA (1995)]
counsel, preferably of his own choice, who shall Delivery of the accused to others who become
at all times be allowed to confer privately with entitled to his custody and responsible for his
the person arrested, detained or under CI. appearance. [Philippine Phoenix Surety v.
If he cannot afford to have his own Sandiganbayan (1987)]
counsel, he must be provided with a Person under detention or legal process may be
competent and independent counsel by the released upon admittance to bail. [Rule 114,
investigating officer. Sec. 3]
Assisting counsel may be any lawyer, It shall not constitute as a waiver of his right to
except those: challenge the legality of his arrest or the
a) Directly affected by the case; absence of PI. [Rule 114, Sec. 26]
b) Charged with conducting PI;
c) Charged with the prosecution of
crimes; [Sec. 3, RA 7438]
3) To be allowed visits by or conferences with any
1) When the law or ROC so provides.
member of his immediate family, or any
2) When the person has been in custody for a
medical doctor or priest or religious minister
period equal to or more than the possible
chosen by him or by any member of his
maximum imprisonment prescribed for the
immediate family or by his counsel, or by any
offense charged.
national NGO duly accredited by the
He is to be released immediately, without
Commission on Human Rights or by any
prejudice to the continuation of the trial.
international NGO duly accredited by the Office
If the maximum penalty is destierro, he
of the President.
shall be released after 30 days of
"Immediate family" includes his or her
preventive imprisonment. [Rule 114, Sec.
spouse, fianc or fiance, parent or child,
brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece,
and guardian or ward. CONDITIONS OF BAIL

1) Undertaking is effective upon approval and

shall remain in force at all stages of the case
until promulgation of the RTC judgment.
WON the case was originally filed in the
Unless cancelled.
2) Accused shall appear before the proper court.
Whenever required by the court or the
IT effectively prohibits the right to travel of
the accused. [Silverio v. CA (1991)]
3) Failure of the accused to appear at the trial
shall be deemed waiver of his right to be
If failure was without justification and
despite due notice.
Trial may proceed in absentia.
4) Bondsman shall surrender the accused to the
court for execution of final judgment. [Rule
114, Sec. 2]

The conditions must be stated in the original

papers, along with full name of the accused
and the amount of the undertaking.
The court may impose other conditions where
the likelihood of accused jumping bail or of
committing other harm to the citizenry is
feared. Examples:
Increase the amount of bail bond;
Require the accused to report periodically
VI. BAIL and make an accounting of his movements;

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Accused might be warned that trial will The money deposited shall be applied to
proceed in absentia [Almeda v. Villaluz the payment of fine and costs. Any excess
(1975)] shall be returned to the accused or to
Arraignment of the accused is not allowed as a whoever made the deposit.
condition for bail. [Lavides v. CA (2000)] The judge has no authority to receive a
The court cannot impose conditions upon the deposit of cash bail.
bondsmen, in addition to the obligation to The cash should not be kept in the judges
deliver the accused before the court. [Bandoy office, much less his own residence. [Naui
v. Judge of CFI] v. Mauricio]
4) Recognizance. [Rule 114, Sec. 15]
KINDS OF BAIL Definition: Obligation of record, entered
into before some court or magistrate duly
1) Corporate surety. authorized to take it, with the condition to
By any domestic/foreign corporation do some particular act, the most usual
licensed as a surety and currently condition in criminal cases being the
authorized to act as such. [Rule 114, Sec. appearance of the accused for trial. [People
10] v. Abner (1950)]
Court may not refuse corporate surety Effect: Transfer custody of the accused
bond and require cash bond. [Almeda v. from the public officials who have him in
Villaluz (1975)] their charge to keepers of his own
Note: However, the SC also held that the selection.
ROC left to the trial judges discretion the Whenever allowed by law or by the ROC:
question of whether bail should be posted a) In cases of violations of
in form of a corporate surety bond or municipality/city ordinances, and
property bond or a cash deposit or a criminal offenses where the penalty is
personal recognizance [Re: Judge Silverio not higher than arresto mayor and/or
Tayao, Makati RTC Br.143 (1994)] fine of P2K or both. [RA 6036]
2) PROPERTY BOND An undertaking b) Youthful offender, upon
constituted as a lien on the real property given recommendation of DSWD or other
as security for the amount of the bail. [Rule agencies authorized by court. [PD 603]
114, Sec. 11] c) Accused applying for probation before
Qualifications of sureties: [Rule 114, Sec. finality of judgment. [PD 968]
12] d) Person in custody for a period equal to
a) Each must be a resident owner of real or more than the minimum of the
estate within the Philippines; principal penalty prescribed for the
Court may require that he is a offense charged. [Rule 114, Sec. 16]
resident of the province. [Villaseor
v. Abao (1967)] AMOUNT OF BAIL
b) Where there is only one surety, his real
estate must be worth at least the Guidelines:
amount of undertaking; 1) Financial ability of the accused to give bail;
c) If there are 2 or more sureties, each 2) Nature and circumstances of the offense;
may justify in an amount less than that 3) Penalty for the offense charged;
expressed in the undertaking but the 4) Character and reputation of the accused;
aggregate of the justified sums must be 5) Age and health of the accused;
equivalent to the whole amount of the 6) Weight of evidence against the accused;
bail demanded. 7) Probability of the accused appearing at
Justification of sureties: [Rule 114, Sec. trial;
13] 8) Forfeiture of other bail;
By affidavit taken before the judge that 9) The fact that the accused was a fugitive
he possesses the qualification from justice when arrested;
prescribed in the preceding section; 10) Pendency of other cases where the accused
Describe the property given as security, is on bail.
stating the nature of his title, its DOJ Department Circular No. 89 (2000 Bail
encumbrances, the number and Bond Guide) provides standards and criteria for
amount of other bails entered into by recommendation of amount of bail to be
him and still undischarged, and his granted, if possible and the rules for the
other liabilities; computation of bail.
Court may examine the sureties upon Increase or reduction of amount of bail may be
oath concerning their sufficiency in imposed by the court after the accused is
such manner as it may deem proper. admitted to bail upon a good cause:
3) Cash bond. [Rule 114, Sec. 14] 1) Increased bail Accused may be
Cash corresponding to the amount of bail committed to custody if he does not give
fixed by the court or recommended by the bail in the increased amount within a
prosecutor who investigated or filed the reasonable period of time. [Rule 114, Sec.
case. 20]
Deposited with the nearest internal revenue 2) Reduced bail Person in custody for a
collector or provincial/city/municipal period equal to or more than the minimum
treasurer. of the principal penalty prescribed for the
Upon submission of a proper certificate of offense charged may be released on a
deposit and a written undertaking showing reduced bond. [Rule 114, Sec. 16]
compliance with the requirements, the
accused shall be discharged from custody. A. RIGHT TO BAIL

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2) Previously escaped from legal confinement,

ACCRUAL OF THE RIGHT TO BAIL evasion of sentence or violation of
conditions of bail without valid justification;
ACCUSED MUST BE IN CUSTODY 3) Commission of offense while under
The right to bail accrues when a person is probation, parole or conditional pardon;
arrested or deprived of his liberty. [Paderanga 4) Probability of flight;
v. CA (1995)] 5) Undue risk that he may commit another
The Court should not even allow a motion for crime during the pendency of appeal.
bail to be set for hearing unless it has acquired
jurisdiction over the person of the accused and RIGHT TO BAIL NOT AVAILABABLE
the case by its filing in court. [Guillermo v.
Judge Reyes (1995)] 1) Capital offense or an offense punishable by
reclusion perpetua or life imprisonment, when
CUSTODY, HOW ACQUIRED evidence of guilt is strong. [Rule 114, Sec. 6]
1) By virtue of a warrant or a warrantless arrest; Prosecution has the burden of proof. [Rule
2) Voluntary submission to the courts jurisdiction. 114, Sec. 8]
CAPITAL OFFENSE - An offense which,
General rule: The mere filing of an application under the law existing at the time of its
for bail is not sufficient to submit to the commission and of the application for
jurisdiction of the court. [Santiago v. Vasquez, admission to bail, may be punished with
(1992)] death.
Exception: When there is an application Effect of abolition of death penalty: When
for bail without the personal appearance of evidence of guilt is strong, right to bail is
the accused (e.g. when he is confined in still not available. [Carpio v. Maglalang
the hospital). [Santiago v. Vasquez; (1991)]
Paderanga v. CA] Hearing on the application for bail is
mandatory. [Aurillo Jr. v. Francisco (1994)]
ADMITTANCE TO BAIL AS A MATTER OF Court must give reasonable notice of
RIGHT the hearing to the prosecutor or require
him to submit his recommendation.
[Rule 114, Sec. 18]
All persons in custody shall be admitted to bail 2) Right to bail is not available in the military.
as a matter of right: [Comendador v. de Villa (1991)]
Before or after conviction by the MTC; 3) After a judgment of conviction has become
Before conviction by RTC of an offense not final;
punishable by death, reclusion perpetua or If applied for probation before finality, he
life imprisonment. [Rule 114, Sec. 4] may be allowed temporary liberty under his
It is not necessary that there is a formal bail. [Rule 114, Sec. 24]
complaint filed against him. [Herras 4) After the accused has commenced to serve his
Teehankee v. Rovira] sentence. [Rule 114, Sec. 24]

Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life WHERE FILED [Rule 114, Sec. 17]
It may be acted upon by the RTC despite With the court where the case is pending;
the filing of notice for appeal, as long as If the is unavailable, with any RTC/MTC
original record is not yet transmitted to the judge in the province/city/municipality.
appellate court With the RTC of the place where the accused
If RTC conviction changed the nature of the was arrested, if different from the place where
offense from non-bailable to bailable, it can the case is pending.
be resolved only by the appellate court. If the judge unavailable, with any MTC
If bail is granted, provisional liberty judge therein.
continues under the same bail subject to If the grant of bail is a matter of discretion or
the consent of the bondsman. [Rule 114, bail is in the form of a recognizance Only with
Sec. 5] the court where the case is pending.
In deportation proceedings, it is the CIDs If there is no formal charge yet - With any
discretion. [Harvey v. Defensor-Santiago court in the province/city/municipality where he
(1990)] is held. (Rule 114, Section 17, ROC)


If the penalty imposed by TC is imprisonment By special civil action in the CA.

exceeding 6 years, and prosecution shows: Not in the SC. [Vide at Aleria Sr. v. Velez
[Rule 114, Sec. 5] (1998)]
1) Recidivism, quasi-recidivism, habitual Must be filed within 60 days from denial.
delinquency, commission of crime [Rule 65, Sec. 4]
aggravated by circumstance of reiteration;

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Accused must be discharged upon approval of VII. RIGHTS OF THE ACCUSED

the bail by the judge with whom it was filed.
[Rule 115]
If bail is filed with a court other than where the
case is pending, the judge who accepted the
bail should forward it to the court where the
1) To be presumed innocent;
case is pending. [Rule 114, Sec. 19]
Until contrary is proved beyond reasonable
If the accused attempts to depart from the
Philippines without permission of the court, he
Accusation is not synonymous with guilt.
may be re-arrested without the need for a
[People v. Dramayo (1971)]
warrant. [Rule 114, Sec. 23]
2) To be informed of the nature and cause of
accusation against him;
FORFEITURE OF BAIL [Rule 114, Sec. 21] Offense must be clearly charged in the
information. [People v. Ortega (1997)]
If the accused failed to appear in person as Charge must be set forth with sufficient
required by the court. particularity which will enable him to
Bondsmen are given 30 days within which to: intelligently prepare his defense. [Balitaan
1) Produce the body of the principal or give v. CFI of Batangas (1982)]
reason for the non-production. The pPurpose is served by arraignment.
Bondsmen may: [Borja v. Mendoza (1977)]
a) Arrest the accused; 3) To be present and defend in person and by
b) Cause him to be arrested by a counsel at every stage of the proceedings;
police officer or any other person of a) Right to be present;
suitable age or discretion. This right may be waived. However,
Upon written authority presence is required:
endorsed on a certified copy of (1) For purposes of identification;
the undertaking. (2) At arraignment; [Rule 116, Sec.
2) Explain why the accused failed to appear. 1(b)]
If the bondsmen fail to do these, judgment (3) At the promulgation of judgment;
is rendered against them, jointly and Exception: If the conviction is
severally, for the amount of the bail. for a light offense. [Rule 120,
Bondsmens liability cannot be mitigated or Sec. 6]
reduced, unless the accused has been Trial in absentia:
surrendered or is acquitted. Requisites: [Parada v. Veneracion
CANCELLATION OF BAIL (1) Prior arraignment;
(2) Proper notice of the trial;
1) Upon application of the bondsmen, with due (3) Failure to appear is
notice to the prosecution, bail may be cancelled unjustifiable.
upon: Effects: Waiver of right to be
a) Surrender of the accused; present, right to present evidence
b) Submission of proof of the death of the and right to cross-examine
accused. witnesses. [Gimenez v. Nazareno
2) Bail is automatically cancelled upon: (1988)]
a) Acquittal of the accused; Note: This doctrine should be
b) Dismissal of the case; re-examined because the rights
c) Execution of the judgment of conviction. waived are distinct rights
guaranteed by the Constitution.
b) Right to counsel;
It means reasonably effective legal
assistance. [Gideon v. Wainright
It is absolute and may be invoked at all
times, even on appeal. [Telan v. CA
Duty to appoint counsel de oficio is
mandatory only at the time of
arraignment. [Sayson v. People (1988)]
Violation of this right entitles the
accused to new trial. [People v. Serzo
It may be waived, so long as not
contrary to law, public order, public
policy, morals or good customs.
The waiver must be unequivocally,
knowingly and intelligently made
[People v. Nicandro (1968)]
c) Right to defend in person.
Only when it sufficiently appears that
he can protect his rights without the
assistance of counsel
4) To testify in his own behalf;

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But subject to cross-examination on any VIII. SEEKING RELIEF FROM A

matter cited in his direct examination.
5) To be exempt from being compelled to be a DEFECTIVE INFORMATION
witness against himself;
Compulsion includes not only violence but
also moral coercion. [Chavez v. CA (1968)]
Covers only testimonial compulsion and
production of incriminating documents.
It does not include examination of his body MOTION TO QUASH (MTQ) - Formerly called
as evidence when it may be material. [US a demurrer, it is a special pleading, filed by the
v. Tan Teng (1912)] accused, which hypothetically admits the truth
If he testified as a witness in his own of the facts spelled out in the
behalf, he cannot refuse to answer complaint/information and sets up a matter,
questions on cross-examination on the which, if duly proved, would preclude further
ground that the answer would incriminate proceedings.
himself. It cannot be initiated by the judge; otherwise it
The questions should be on matters related would amount to pre-judging the case. [People
to his direct examination. [People v. Judge v. Nitafan (1999)]
Ayson (1989)]
6) To confront and cross-examine witnesses Order denying MTQ Order granting MTQ
Interlocutory Final order
against him at the trial;
Not appealable absent a Immediately appealable
This right is waived by non-appearance.
showing of GAD but subject to rules on
[Carredo v. People (1990)] double jeopardy
Identification by a witness of the accused is Does not dispose of the Disposes of the case upon
inadmissible if the accused had no case upon its merits its merits
opportunity to confront witness. [People v. Proper remedy: appeal Proper remedy: appeal the
Lavarias (1968)] after the trial order
7) To have compulsory process issued to secure
attendance of witnesses and production of MTQ Demurrer to Evidence
other evidence in his behalf. Filed before entering plea Filed after the prosecution
Trial court should not delegate to the has rested its case
accused the responsibility of getting his Does not go into the Based upon the inadequacy
merits of the case of the evidence adduced by
witnesses. If a subpoena is issued and
the prosecution
the witness failed to appear, the court
should order the arrest of the witness if
Nolle prosequi Quashal of Information
necessary. [People v. Montejo (1967)] Initiated by prosecutor Initiated by accused
8) To have a speedy, impartial and public trial; Dismissal of criminal case Court has no authority to
Remedy against denial of right: by the government before initiate MTQ. Filing is made
a) MTD; accused is placed on trial before accused enters plea,
b) Dismissal subject to rules on double and before he is called to subject to exceptions
jeopardy. [SC Circular 38-98] plead, with approval of
c) Mandamus. [Vide Abadia v. CA (1994)] court
This right may be waived. Discontinuance in a civil ***
suit, leaves the matter in
Right to public trial not is violated where
the same condition it was
trial was held in chambers [Garcia v. before commencement of
Domingo (1973)] or in the Bilibid prison the prosecution
[US v. Mercado (1905)], if accused failed to Not an acquittal Acquittal is a ground for
object and as long as he could have his quashal
friends, relatives and counsel present. Not a final disposition of Rule 117, Sec. 6
Trial by publicity is not per se as prejudicial the case
to the right of an accused to fair trial. It is Does not bar subsequent Rule 117, Sec. 6
prejudicial only if there are allegations and prosecution for the same
proof that the judges have been unduly
influenced, not simply that they might be,
by the barrage of publicity. [People v. TIME TO FILE MTQ
Teehankee (1995)]
9) To have the right of appeal in all cases allowed General rule: At any time before entering his
and in the manner prescribed by law. plea. [Rule 117, Sec. 1] It can be filed even
Right to appeal is a statutory right and the before jurisdiction over his person has been
requirements must be complied with; acquired and during PI.
otherwise, the right is lost. [People v. Exception: [Rule 117, Sec. 1; Marcos v.
Sabellano (1991)] Sandiganbayan (2000)]
If accused escapes from confinement, 1) If the accusatory pleadings do not
appeal is not allowed unless he voluntarily charge an offense;
surrenders within period for appeal. [People 2) If the court has no jurisdiction over the
v. Omar (1991)] case;
3) If the offense or penalty has already
been extinguished;
4) If further prosecution would put him in
double jeopardy.


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Deemed to be a waiver of all objections which Where they are undisputed facts
are grounds for a MTQ. [Gamboa v. Cruz apparent from the records of the PI and
(1988)] not denied or admitted by the
Deprives of the right to object to evidence prosecutor [Salonga v. Pano (1985)]
which could be lawfully introduced and Where they are undisputed or undeniable
admitted under an information of more or less facts that destroy the prima facie truth
general terms but which sufficiently charges a accorded to allegations of the information
definite crime. [People v. Marquez (2000)] [People v. de la Rosa (1988)]
ROC expressly permits the investigation of
FORM AND CONTENTS [Rule 117, Sec. 2] facts alleged. [People v. Alagao (1966)]
[Rule 117, Sec. 2(f)(h), 4 & 5]
1) In writing; Rationale: It would be pure technicality for
2) Signed by the accused or his counsel; the court to close its eyes to said facts,
3) Distinctly specify factual and legal grounds. refuse to quash the information, and
Facts outside the information are allowed to require trial.
be introduced to prove any of the grounds.
Inquiry into outside facts may also be 2. COURT HAS NO JURISDICTION
allowed even when the ground invoked is OVER THE OFFENSE CHARGED
that the allegations in the information do
not constitute the offense charged. [Garcia JURISDICTION OVER THE SUBJECT
v. CA (1997)] MATTER The power to adjudge concerning
General Rule: Court shall consider no the general question involved.
ground other than those stated in the MTQ. Law defines the offenses and penalties under
Exception: LOJ over the offense the jurisdiction of a court.
charged. If the case was tried and decided upon the
theory that it had jurisdiction, the parties are
GROUNDS [Rule 117, Sec. 3] not barred from assailing such jurisdiction on
The grounds for MTQ are exclusive. In criminal prosecution, venue or place is
Not valid grounds: jurisdictional. [Rule 110, Sec. 15; Lopez v. City
1) Absence of PI; Judge, 1966]
2) Lack of PC; The court had jurisdiction over the case since
3) Non-inclusion of an accused. for as long as he continues to evade the service
of his sentence he is deemed to continue
1. FACTS CHARGED DO NOT committing the crime, and may be arrested
without warrant at any place where he may be
found. [Parulan v. Director of Prisons (1968)]
Where a court has jurisdiction over the offense,
In all criminal cases, the accused should be
the objection that it has no jurisdiction over the
informed of the nature and the cause of the
person of the accused may be waived. [Layosa
accusation against him.
v. Rodriguez (1978)]
An information which does not charge an
In private crimes, complaint of the offended
offense or does not allege all the elements of a
party is necessary to confer authority to the
crime, is void.
Test: WON the facts alleged, if hypothetically
admitted, would meet the essential elements of
the offense, as defined by law. [People v Abad 3. COURT HAS NO JURISDICTION
That the missing element may be proved ACCUSED
during the trial or that prosecution has
presented evidence to establish the same It is waivable expressly or by implication,
cannot have the effect of validating the unlike jurisdiction over the territory and the
void information or proving an offense subject matter.
which does not exist. [People v. Asuncion When the objection is raised, court should
(1988)] resolve it before conducting trial to avoid
Instead of dismissing, the court should give unnecessary expenditure of time and money.
prosecution an opportunity to amend the [Mead v. Argel (1982)]
information. [Rule 117, Sec. 4] How the jurisdiction is acquired:
When the court dismisses the case, the 1) By arrest of the accused or his voluntary
prosecutor should file a valid information, appearance in court.
not a petition for review for certiorari. 2) By allowing himself to be arraigned without
The defect is not cured by failure to move to questioning the legality of his arrest.
quash or by plea of guilty. The failure does not Illegality of arrest is waivable as it affects only
imply a waiver of the defects that go to the the jurisdiction of the court over the person of
jurisdiction of the offense or to lack in some of the accused. [People v. Meris (2000)]
the essential elements of the offense charged. If the accused believes his arrest to be illegal,
[Suy Sui v. People (1953)] he should move to quash the information on
General rule: In the MTQ, facts other than such ground.
those alleged may not be considered by the
Where they are facts already admitted HAD NO AUTHORITY TO DO SO
by the prosecution. [People v. Navarro]

100% UP LAW UP BAROPS 2008 Page 20 of 227


Authority to file and prosecute criminal cases more modes specified. [Ku Bo Lin v. CA
vested in: (1992)]
1) Provincial fiscals and their assistants; If criminal acts are committed on different
2) City fiscals and their assistants; occasions, each constitutes a separate offense.
3) The chief state prosecutor and his deputies.
A lawyer appointed by the DOJ Secretary may 7. CRIMINAL ACTION OR LIABILITY
also file an information.
The prosecutor who signed must have
territorial jurisdiction to conduct PI. [Cudia v.
Enjoyment of an accrued right cannot forever
CA (1998)]
be left on a precarious balance. [People v.
Information filed in the Sandiganbayan: Must
Reyes (1989)]
be signed by a graft investigating officer with
Protection from prosecution under a statute of
prior approval of the Ombudsman. Authority to
limitation is a substantive right. [People v.
sign may be challenged if prosecutor files the
Sandiganbayan (1992)]
information without approval of Ombudsman.
The Ombudsman cannot sign when filed
information is filed in the regular courts.
[Uy v. Sandiganbayan (1999)]
1) Death of the accused;
Election offenses: Must be signed by duly
Extinguished as to the personal penalties
deputized prosecutors and the legal officers of
and pecuniary penalties only when death
occurs before final judgment.
2) Service of sentence;
5. COMPLAINT/INFORMATION DOES Execution must be by virtue of a final
NOT CONFORM SUBSTANTIALLY judgment and in the form prescribed by
3) Amnesty;
The formal and substantial requirements are 4) Absolute pardon;
provided for in Rule 110, Sec. 6-12.
General rule: Lack of substantial compliance Absolute pardon Conditional pardon
Complete upon its Only upon the acceptance
renders the accusatory pleading quashable.
delivery since accused may view
Exception: liability less onerous than
Mere defects in matters of form may be the terms
cured by amendment.
Objections not raised are deemed Pardon Amnesty
waived, and the accused cannot seek Grant of the executive Grant by the President with
affirmative relief on such ground nor concurrence of majority of
raise it for the first time on appeal. Congress
[People v. Garcia (1997)]
Vague or broad allegations are generally not
grounds for a MTQ. Private though official act Public act
The correct remedy for this is a bill of Must be pleaded and Court must take judicial
particulars. [Rule 116, Sec. 9] proved notice [People v. Vera
Granted after conviction Usually for those subject to
6. MORE THAN ONE OFFENSE IS trial but have not yet been
CHARGED convicted, but can also be
available even after
General rule: Complaint/information must institution of the criminal
action and sometimes after
charge but one offense. [Rule 110, Sec. 13]
Exception: cases in which existing laws Looks forward releases Looks backward
prescribe a single punishment for various from consequences of abolishes offense itself;
offenses. conviction completely extinguishes
Complex and compound crimes, except the penalty and all its
where one offense was committed in effects [People v. Vera
order to conceal another. (1990)]
A specific crime set forth in various Extended to pardoned Granted to all persons
counts, each of which may constitute a defendant alone and to no guilty of a crime
other (generally, political cases
distinct offense. The narration of the
like rebellion, sedition,
specific acts is considered a bill of treason), and often
particulars of facts upon which the conditioned upon their
inference of the guilt of the accused return to obedience and
may be based. [People v. Yap (1968)] duty within a prescribed
An offense incidental to the gravamen time
of the offense charged.
It is waivable. The accused may be convicted of 5) Prescription of the crime;
all the offenses alleged and proved if accused
goes to trial without objecting to the inclusion
Definition: Loss/waiver by the state of its
of 2 or more separate offenses in the same
right to prosecute a crime. [People v.
information. [People v. Villamor (1998)]
Castor (1954)]
It is not tantamount to duplicity of offenses. An
Computation of period: [Art. 91, RPC]
offense is committed in different modes and is
Commencement: From the day on
alleged to have been committed in the 2 or
which the crime is discovered by the

100% UP LAW UP BAROPS 2008 Page 21 of 227


offended party, the authorities, or their Commencement: From the date when
agents. the culprit should evade the service of
Interruption: Upon the filing of his sentence.
complaint/information Interruption: If the defendant should
General rule: Includes complaint give himself up, be captured, should go
filed with the proper officer for PI. to some foreign country with which this
Exception: Period for offenses Government has no extradition treaty,
penalized by special laws and or should commit another crime before
ordinances is interrupted only the expiration of the period.
by filing in court. 7) Pardon in private offenses (seduction,
Commences to run again: When abduction, acts of lasciviousness, rape).
proceedings terminate without the It extinguishes the criminal action or remits
accused being convicted or acquitted, the penalty already imposed.
or are unjustifiably stopped for any General rule: Pardon should be given
reason not imputable to him. before the filing of criminal complaint.
Prescription shall not run when the Exception: Marriage between the
offender is absent from the Philippines. offended woman and the offender.
Manner of computing time: [Art. 344, RPC; People v. Lualhati
1 year = 365 days; (1989)]
1 month = 30 days, unless specified; Applicable to co-principals, accomplices
1 day = 24 hours; and accessories.
Nights = From sunrise to sunset; If the victim is a minor: Pardon of
First day shall be excluded and the last offended party and of both parents is
day included. required. [People v. de la Cruz (1993)]
The rule that if the last day falls on a
Sunday or a holiday, the act can still be 8. CONTAINS AVERMENTS WHICH, IF
done the following day, does not apply
to the computation of the period of
prescription of a crime. EXCUSE OR JUSTIFICATION
Prescription of continuing crime: Counted
from the latest/last act constituting the JUSTIFYING CIRCUMSTANCES [Art. 11, RPC]
series of acts continuing the single crime. 1) Acts in defense of his person or rights;
[People v. Castaneda (1990)] Requisites:
Prescription periods: [Art. 90, RPC] a) Unlawful aggression;
a) 20 yrs. Death and reclusion b) Reasonable necessity of means
perpetua; employed;
b) 15 yrs Other afflictive penalties; c) Lack of sufficient provocation.
c) 10 yrs. Correctional penalties; except 2) Acts in defense of the person or rights of his
arresto mayor, which prescribes in 5 a) Spouse;
yrs.; b) Ascendants;
d) 1 yr. Libel and similar offenses; c) Descendants;
e) 6 mos. Oral defamation and slander d) Legitimate/natural/adopted brothers or
by deed; sisters;
f) 2 mos. Light offenses. e) Relatives by affinity in the same degrees;
f) Relatives by consanguinity within the 4th
When the penalty fixed is a compound civil degree.
one, the highest penalty shall be made Provided: that the 1st and 2nd requisites in
the basis of the application of letters a- #1 are present and, in case the
c. provocation was given by the person
attacked, that the one making defense had
6) Prescription of the penalty; no part.
3) Acts in defense of the person or rights of a
Definition: Loss/waiver by the State of its Provided: that the 1st and 2nd requisites in
right to demand service of the penalty #1 are present and that the person
imposed. [Aquino] defending be not induced by revenge,
When and how penalties prescribe: [Art. resentment or other evil motive.
92, RPC] 4) Act which causes damage to avoid evil/injury;
a) 20 yrs. Death and reclusion Requisites:
perpetua; a) Evil sought to be avoided actually
b) 15 yrs Other afflictive penalties; exists;
c) 10 yrs. - Correctional penalties; except b) Injury feared greater than that done to
arresto mayor, which prescribes in 5 avoid;
yrs.; c) No other practical and less harmful
d) 1 yr. Light penalties. means.
Act No. 3326 governs period of prescription 5) Fulfillment of duty or lawful exercise of a
for violation of special laws. right/office;
Where the accused is found to have 6) Obedience to an order issued by a superior for
committed a lesser offense included in the some lawful purpose.
offense charged, he cannot be convicted of
the lesser offense if it has already EXEMPTING CIRCUMSTANCES [Art. 12, RPC]
prescribed. [Magat v. People (1991)] 1) Imbecile or insane person;
Computation of period: [Art. 91, RPC] Exception: Insane person acted during a
lucid interval.

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2) Person under 9 y/o; otherwise terminated, and not to

3) Person over 9 y/o and under 15 y/o; conviction or acquittal. [People v.
Exception: If acted with discernment. Labatete (1960)]
4) Causes injury by mere accident, without fault If consent is not express, dismissal
or intention, while performing lawful act with will be regarded as final i.e. with
due care; prejudice to refiling. [Caes v. IAC
5) Under compulsion of irresistible force; (1989)]
6) Under impulse of uncontrollable fear of an Exception: Dismissal has the
equal or greater injury; effect of acquittal even with the
7) Fails to perform an act required by law when consent of the accused when
prevented by some lawful insuperable cause. predicated on (1) insufficiency
of the prosecutions evidence or
9. DOUBLE JEOPARDY (2) denial of the right to a
speedy trial. [Alamario v. CA
person is charged with an offense and the case
is terminated either by acquittal or conviction TWO CATEGORIES OF DOUBLE JEOPARDY
or in any other manner without the express 1) Same offense.
consent of the accused, the latter cannot again The offenses penalized either by different
be charged with the same or identical offense. sections of the same statute or by different
[Rule 117, Sec. 3(i)] statutes.
Rationale: Must examine the essential elements of
Law of reason, justice and conscience. each.
No person shall be twice put in jeopardy of Test: WON evidence that proves one
punishment for the same offense; if an act offense would also prove the other. [People
is punished by a law and an ordinance, v. Ramos (1961)]
conviction or acquittal under either shall It is not necessary to have absolute
constitute a bar to another prosecution. identity. [People v. Relova (1987)]
[Art. 3, Sec. 21, Consti] 2) Same act.
It protects not against peril of 2nd punishment Liability is generated both under an
but against being tried again for the same ordinance and a national statute.
offense. The constitutional protection is available
SAME OFFENSE TEST Not only when exactly although the prior offense charged under
the same offense, but also when the 2nd an ordinance be different from the offense
offense is an attempt to commit the 1st or is a charged under a national statue, provided
frustration thereof, or when it necessarily that both spring from the same act or set
includes or is necessarily included in the 1st of acts. [People v Relova (1987)]
offense charged. [People v. Silva] Examine the location of such acts in time
To constitute double jeopardy, the offense and space.
charged must be the same in law and in fact.  Where 2 different laws (or articles of the
Requisites of Double Jeopardy: same law) define 2 crimes, prior jeopardy
a) 1st jeopardy has attached; as to one is not obstacle to a prosecution of
b) 1st jeopardy was validly terminated; the other, although both arise from the
c) 2nd jeopardy: same facts, if each involves some
(1) For the same offense charged; important act which is not an essential
(2) For an attempt to commit the same or element of the other. [People v. Doriquez
frustration thereof; or (1968)]
(3) For an offense which necessarily
includes or is necessarily included in WHEN THERE IS NO DOUBLE JEOPARDY
the 1st. 1) Private offended party appeals the civil aspect
Requisites that must have been obtained in the of the case. [Manantan v. CA (2001)]
original prosecution (to determine if 1st 2) Conviction of a crime under a special law
jeopardy attached): (malum prohibitum) which also constitutes an
a) Valid complaint/information; offense under the RPC is not a bar to the
grounds upon which dismissal was prosecution under the RPC (malum in se).
anchored are clearly directed at the [People v. Sanchez (1998)]
sufficiency of said information to 3) Two informations are filed charging the accused
sustain the conviction and hence, with two different offenses having different
indicate the absence of the 1st elements though arising from the act (e.g.
requisite. [Caniza v. People, 1988] estafa and BP 22). [Ching v. CA (1990)]
b) Competent court; 4) Prosecutor may revive and reinstate case
c) Defendant pleaded to the charge; without the filing of a new information when
d) Defendant was either: the information is provisionally dismissed with
(1) Acquitted; the conformity of the accused after
Exception: A dictated, coerced and arraignment and initial presentation
scripted verdict of acquittal is a prosecution evidence has started, since the
void judgment it neither binds order of provisional dismissal had not yet
nor bars anyone. [Galman v. become final. [Lauchengco v. CA (1979)]
Sandiganbayan (1986)] 5) Dismissal of the case was declared null and
(2) Convicted; or void. [People v. Mogol (1984)]
(3) The case was dismissed, or otherwise Where an order dismissing a case in not a
terminated without his consent. decision on the merits, it cannot bar as res
Without express consent refers judicata a subsequent case based on the
only to dismissal or the case same offense. The dismissal being null and

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void, the proceeding before the TC may not 3) If lower court acted with GAD. [Reyes
be said to have been lawfully terminated. v. Camilon (1990)]
[People v. Grospe (1988)] 4) If any of the following instances occur:
6) Petition for certiorari filed by the prosecutor to [Paredes v. Sandiganbayan (1996)]
correct the penalty which should be lower that a) To afford protection to
that imposed by the TC it is favorable to the constitutional rights;
accused. [People v. Lee Jr. (1984)] b) For orderly administration of
7) Mere filing of two informations charging the justice;
same offense the 1st jeopardy has not set in. c) Prejudicial question which is sub
[People v. Pineda] judice;
Note: Dissent in People v. Pineda It is d) Prosecution under invalid law/
sufficient that the accused has pleaded in ordinance/regulation;
the 1st case in order for the 1st jeopardy to e) Double jeopardy is clearly
set in. apparent;
Qualification: Prosecution may be said to f) No jurisdiction over the offense;
be forum shopping which will warrant the g) Persecution rather than
dismissal of the 2nd case. prosecution;
The accused should object to any joint h) Charges manifestly false and
trial since he may forfeit the right to motivated by vengeance;
raise double jeopardy in the 2nd case. i) No prima facie case against
8) Filing of 2nd information where a new fact accused;
supervened (e.g. the injured party dies from j) To avoid multiplicity of suits.
injuries after conviction).
Where there is no supervening event after WHEN AMENDMENT IS AVAILABLE AS A CURE
arraignment and conviction: The court shall order that an amendment be
a) If the 1st charge was based on findings made if the motion is based on an alleged
of a physician, and a 2nd information defect which can be cured by amendment.
was filed charging a more serious crime [Rule 117, Sec. 4]
based on the findings of another Court shall give an opportunity to the
physician. [People v. Buling (1960)] prosecution to correct a defect if based on the
b) If the victim died 2 days prior to ground that the facts charged do not constitute
arraignment of the accused who an offense. MTQ shall be granted if: [Rule 117,
pleaded guilty to an information for Sec. 4]
serious physical injuries thru reckless 1) Prosecution fails to make the amendment;
imprudence he can no longer be 2) Complaint/information still suffers from the
charged with homicide thru reckless same defect despite the amendment.
imprudence. [People v. City Court of In a dismissal for the purpose of amendment,
Manila (1983)] the defendant is not placed in jeopardy and the
In a continuing offense, only one crime is dismissal is not a bar to the filing of an
committed. Where 2 informations arose from amended information.
the same transaction, the 2nd cannot prosper. Though a material amendment is based on the
[Mallari v. People (1988)] ground that the facts charged do not constitute
General rule: Prosecution cannot file an an offense, the same could be done because
appeal or a MFR after jeopardy had attached the accused has not been arraigned nor can a
for the purpose of increasing the imposed dismissal on such ground put the accused twice
penalty. [US v. Kepner (1904)] in jeopardy
Exception: If the purpose is to decrease It is a good tactical move for the accused to
the penalty wrongfully imposed, it is first plead to the information and thereafter file
beneficial to the accused and there is no a MTQ either before or after the prosecution
reason to complain. has presented evidence. [Cruz v. CA (1991)]



No automatic conversion of a hearing on a MTD General rule: Court may order that another
to a hearing on the merits without clear waiver complaint/information be filed. [Rule 117, Sec.
by the accused of his right to a regular trial. 5]
[Dayawon v. Garfin (2002)] Exception: If MTQ was based on the
following grounds: [Rule 117, Sec. 6]
WHEN MOTION IS DENIED [Bulaong v. CA (1990)] 1) Criminal action or liability has been
Defendant should go to trial without prejudice extinguished;
on his part to present special defenses he had 2) Double jeopardy.
invoked in his motion. General rule: If in custody, the accused shall
He may appeal if an adverse decision is not be discharged unless admitted to bail. [Rule
rendered after trial on merits and then assign 117, Sec. 5]
as error the denial of MTQ. The order must state either release of the
General rule: Certiorari and prohibition are accused or the cancellation of his bond.
not the correct remedies against an order Exception: No order sustaining the motion
denying a MTQ. is made or, if having been made, no new
Exception: information is filed within the time specified
1) If information is patently defective. in the order or within such further time as
[People v. Ramos (1989)] the court may allow for good cause.
2) If offense charged already prescribed.
[People v. Ramos (1989)]

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Exception to the exception: If he is 1) Motion either:

also in custody for another charge. a) By prosecution, with express conformity of
Better approach if the ground was that the accused;
court has no jurisdiction over the subject It was respondent who moved to
matter: The court should not quash the dismiss for lack of probable cause;
complaint/information; instead, it should hence, dismissal bears his express
remand/forward the case to the proper court. consent. [People v. Lacson (2002)]
b) By the accused;
EFFECT c) By both.
General rule: It will not be a bar to another 2) Offended party is notified of the motion.
prosecution for the same offense. [Rule 117, 3) Court issues an order granting the motion and
Sec. 6] dismissing the case provisionally.
Exception: If the ground for the quashal is 4) Public prosecutor is served with a copy of the
either: order of provisional dismissal
1) The criminal action or liability has been
extinguished; Time-bars will not apply absent any requisite.
2) The accused has been previously
convicted, or in jeopardy of being FAILURE TO ASSERT GROUNDS [Rule 117,
convicted, or acquitted of the offense Sec. 9]
REMEDIES OF THE PROSECUTION Assertion of MTQ grounds should be made
General rule: To amend the information to before pleading to the complaint/information.
correct the defects if the TC makes the order,
and thereafter prosecute on the basis of the HOW FAILURE TO ASSERT HAPPENS:
amended information. [Rule 117, Sec. 4] By not filing MTQ;
Exception: Prosecution is precluded where By failing to allege a ground in the MTQ.
the ground for the quashal would bar motion
another prosecution for the same offense.
Prosecution may appeal from the order of EFFECT
quashal to the appellate court. General rule: Such failure is deemed a waiver
If the information was quashed because it did of any objections.
not allege the elements of the offense, but the The waiver includes objection based on
facts so alleged constitute another offense ground that information is duplicitous.
under a specific statute, the prosecution may Exception: Objections based on the
file a complaint for such specific offense where following grounds: [Rule 117, Sec. 3]
dismissal is made prior to arraignment and on 1) Information charges no offense;
MTQ. [People v. Purisima (1978)] Hence, the entire proceeding is an
exercise in futility. [Cruz v. CA
2) LOJ over the offense;
Definition: A case is dismissed without General rule: Jurisdictional defects
prejudice to its being refiled or revived. cannot be waived.
General rule: Cases are provisionally Exception: Jurisdiction over
dismissed where there has already been person of the defendant is
arraignment and accused consented to a waivable expressly or impliedly.
provisional dismissal. 3) Criminal action or liability has been
Exception: If dismissal was due to a extinguished;
demurrer to evidence. 4) Double jeopardy.


1) 1 year after issuance of the order without the
case having been revived for offenses
punishable: [Rule 117, Sec. 8]
a) By imprisonment not exceeding 6 years;
b) By a fine of any amount;
c) By both.
2) 2 years after issuance of the order without the
case having been revived for offenses
punishable by imprisonment of more than six 6

The State may revive beyond the periods

provided there is a justifiable necessity for the
The court is not mandated to apply Section 8
retroactively simply because it is favorable to
the accused. The time-bar under the new rule
was fixed for the benefit of the State and the
accused; not for the accused only. [People v. IX. DISCOVERY OR OBTAINING
Lacson (2003)]

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A. BEFORE ARRAIGNMENT e) To define/clarify/particularize/limit the issues in

the case;
f) To expedite the trial;
BILL OF PARTICULARS (BOP) g) To assist the court;
h) Generally, to prevent injustice. [Virata v.
Rule 116, Sec. 9 Rule 12, Sec. 1 Sandiganbayan (1993)]
applies by analogy
cf. [Rule 1, Sec. 3]
The accused may move A party may move for a
for a BOP definite statement or for a
1) To supply material allegations necessary to the
BOP of any matter which is validity of a pleading;
not averred with sufficient 2) To change a cause of action or defense;
definiteness/particularity 3) To set forth the theory of cause of action or a
Before arraignment Before responding to a rule of evidence on which he intends to rely;
pleading [Tan v. Sandiganbayan (1989)]
4) To call matters which should form part of the
If the pleading is a reply, proof of the complaint upon trial. [Salita v.
the motion must be filed
Magtolis (1994)]
within 10 days from service
To enable him properly to To enable him properly to
plead and prepare for trial prepare his responsive WAIVER
pleading Failure to file motion for BOP despite failure of
Motion shall specify Motion shall point out the information to allege time of commission
alleged defects and the defects, paragraphs with sufficient definiteness amounts to a waiver
details desired wherein they are contained of the defect. [People v. Marquez (2000)]
and details desired
The clerk must immediately bring it to the POSSESSION
attention of the court. [Rule 12, Sec. 2]
Court may either: [Rule 12, Sec. 2] Purpose: To prevent surprise, suppression or
1) Deny it; alteration. [Rule 116, Sec. 10]
2) Allow parties opportunity to be heard; It is not a matter of absolute right on the part
3) Grant it outright. of the defense; nor does the privilege operate
a) Compliance: ipso facto upon the filing of a motion.
Within 10 days from notice of The privilege may be exercised only by the
order, unless a different period is accused since the prosecution has already as
fixed by the court. its disposal the entire machinery of the
May be filed either in a separate or government.
an amended pleading, with copy
served on the adverse party. [Rule PROCEDURE [Rule 116, Sec. 10]
12, Sec. 3] 1) Motion of the accused showing good cause and
BOP becomes part of the pleading with notice to the parties. [Cruz v. People
for which it is intended. [Rule 12, (1994)]
Sec. 3] 2) The court may order the prosecution to
b) Non-compliance or insufficient produce and permit the inspection and copying
compliance: [Rule 12, Sec. 4] or photographing of:
The court may order the striking a) Any written statement given by the
out of the pleading or portions to complainant and other witnesses in any
which order was directed, or make investigation of the offense conducted by
other order as it deems just. the prosecution or other investigating
The order granting the motion may be officers;
challenged by filing a petition for b) Designated documents, papers, books,
certiorari. accounts, letters, photographs, object or
tangible things not otherwise privileged.
After either: The statement/object must constitute or
1) Service of the BOP or of a more definite contain evidence material to any matter
pleading; involved in the case and are in the possession
2) Notice of denial, or under the control of:
the moving party may file a responsive 1) The prosecution;
pleading within the period to which he was 2) Police or other law investigating agencies.
entitled at the time of filing his motion.
It shall not be less than 5 days in any
event. [Rule 12, Sec. 5]


c) To properly prepare a responsive pleading WITNESSES ON BEHALF OF THE ACCUSED
which includes the preparation of an intelligent [Rule 119, Sec. 12]
answer. Such an answer requires information
as to nature, character, scope and extent of the PROCEDURE
cause of action. [Rule 12, Sec. 1] Upon motion with notice to the other parties.
d) To amplify/limit a pleading;

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Motion shall be supported by an affidavit of the 1) to afford him the opportunity to observe
accused and such other evidence as the court the demeanor of the witnesses, the parties
may require. and their counsel
2) to enable him to propound such questions
CONTENTS as are material and necessary to support
1) Name and residence of the witness; their position
2) Substance of his testimony; 3) to test the credibility of said witnesses
3) That the witness is: Exception: Witnesses may be conditionally
a) Sick/infirm as to afford reasonable ground examined.
for believing that he will not be able to
attend the trial; WHEN ALLOWED
b) Residing more than 100 km from the place When the witness for the prosecution either:
of trial and has no means to attend; 1) Is too sick or infirm to appear at the trial as
c) Other similar circumstances exist that directed by the court;
would make him unavailable or prevent him 2) Has to leave the Philippines with no definite
from attending. date of returning.


[Rule 119, Sec. 13] No hearing required by the rules before
conditional examination may be allowed
PROCEDURE Witness is conditionally examined before the
1) Court order directing: court where the case is pending:
a) That the witness be examined at a specific In the presence of the accused;
date, time and place; In his absence, after reasonable notice to
b) That a copy of the order be served on the attend the examination has been served on
prosecutor at least 3 days before the him.
scheduled examination. Conducted in the same manner as an
2) Examination shall be taken: examination at the trial.
a) Before a judge; Statement taken may be admitted in behalf of
b) If not practicable, a member of the Bar in or against the accused.
good standing so designated by the judge The testimony/deposition may be admitted
in the order; in evidence only when the deponent is
c) If the order be made by a court of superior either:
jurisdiction, before an inferior court to be 1) Dead;
designated therein. 2) Incapacitated to testify;
3) Examination shall proceed notwithstanding the 3) Cannot be found in the Philippines.
absence of the prosecutor, provided he was
duly notified of the hearing. WAIVER
4) Written record of the testimony shall be taken. Before the examination, notice to attend must
be served on the accused.
Failure/refusal of the accused to attend after
notice shall be considered a waiver.
NATURE [People v. Webb (1999); Blacks Law
Testimony of the witness that is taken upon See the Rule on Examination of Child Witness,
oral question or written interrogatories, in open adopted by the SC and took effect on
court, in pursuance of (1) a commission to take December 15, 2000.
testimony issued by a court or (2) under a
general law or court rule on the subject, SECURING APPEARANCE OF MATERIAL
reduced to writing and duly authenticated WITNESS
It is intended to be used in preparation and
upon trial of a civil/criminal prosecution. NATURE
A pre-trial discovery device by which one party Inherent power of every court to compel the
asks oral questions of the other or of a witness attendance of persons to testify in case
for the other party. pending before it


The defense may apply for the taking of Upon motion of either party and upon proof of
depositions of witnesses. oath.
In matters not specifically touched by Rule 119, If satisfied that a material witness will not
the rule in taking depositions under Rule 24 testify when required, the court may order the
applies suppletorily since taking depositions witness to post bail in such sum as may be
and conditional examination of witnesses are deemed proper.
taken under the same purpose the Failure to grant the motion of the
preservation of a material witness testimony. prosecution to arrest a material witness or
hold him for contempt has been held to
FOR THE PROSECUTION [Rule 119, Sec. 15] Upon refusal, the court shall commit him to
prison until either:
NATURE 1) He complies;
General rule: All witnesses must give their Note: Rule 23, Sec. 9 applies only in
testimonies at the trial of the case in the civil cases: a witness is not bound to
presence of the judge: attend xxx outside the province where

100% UP LAW UP BAROPS 2008 Page 27 of 227


he resides, unless the distance be less

than 50 km from his place of residence DEFINITION
to the place of trial by the usual course
of travel. ARRAIGMENT The stage where the accused
2) He is legally discharged after his testimony is formally informed of the charge against him
has been taken; by reading before him the
information/complaint and asking him whether
he pleads guilty or not guilty. [Rule 116, Sec.
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja
v. Mendoza (1977)]


[Borja v. Mendoza (1977)]
1) To fix the identity of the accused;
2) To inform him of the charge and what penal
offense he has to face;
3) To obtain from the accused his answer or his
plea to the information;
4) To be convicted only on a showing that guilt is
proved beyond reasonable doubt with full
opportunity to disprove the evidence against



[Rule 116, Sec. 6]
1) Inform the accused that he has the right to
have his own counsel before being arraigned;
2) Ask WON he desires the aid of counsel;
3) If he so desires to procure services of counsel,
must grant him reasonable time to do so.
4) General rule: The court must assign a counsel
de officio to defend him. [Rule 119, Sec. 7]
Exception: The accused is allowed to
defend himself in person or has employed a
counsel of his choice.
Exception to the exception: The
accused expressly and formally
renounced such right.


Presence of the accused is not only a personal
right but also a public duty, irrespective of the
gravity of the offense and the rank of the court.
No trial in absentia without first arraigning the
accused; otherwise, judgment is null and void
since (1) the issues are not joined and (2) the
right to be informed of the nature and cause of
accusation is violated.


1) WON arrest was legal, with or without warrant:
Can either move to quash or recall warrant.
Failure to question will amount to waiver.
2) WON accused was accorded the right to a PI: If
none or incomplete, ask court for PI.
[Romualdez v. Sandiganbayan (1995)]
3) WON information or complaint vaguely worded:
File a BOP; otherwise, the defects are deemed
to have been waived. [Rule 116, Sec. 10]
4) WON complaint/information is quashable: File
a MTQ; otherwise, grounds are deemed
waived. [Rule 117]

PROCEDURE [Rule 116, Sec. 1]

GUILTY (ARRAIGNMENT) In open court, by the judge or clerk.

100% UP LAW UP BAROPS 2008 Page 28 of 227


The court where the complaint/information socio-economic status; and ask the
was filed or assigned for trial. defense counsel WON he conferred with
2) How: the accused. [People v. Nadera (2000)]
By furnishing the accused with a copy of 2) To require prosecution to prove guilt and
the complaint/information. the precise degree of culpability.
By reading the same in the 3) To inquire whether accused wishes to
language/dialect known to him This is a present evidence on his behalf and allow
new requirement that implements the him to do so if he desires.
constitutional right of an appellant to be Purpose: To preclude reasonable
informed of the nature and cause of the doubt in the mind of the TC (or the SC
accusation against him [People v. Alicando on review) as to any misunderstanding
(1995)] of the charge, and to ascertain
By asking him whether he pleads guilty or attendant circumstances which justify a
not guilty. greater or lesser degree of severity in
The prosecution may call at the trial the imposition of the prescribed
witnesses other than those named in the penalty.
General rule: Case is remanded to the lower
Plea of not guilty entered for the accused when court for further proceedings.
he either: [Rule 116, Sec. 1(c)] Exception: If the accused appears guilty
1) Refuses to plead; beyond reasonable doubt from evidence
2) Makes a conditional plea of guilty. adduced by the prosecution and defense.
It is a settled rule that where TC receives
evidence to determine whether the accused has
erred in admitting his guilt, the manner in
which the plea is made loses legal significance
since the conviction is based on the evidence
The court may receive evidence from the
proving the commission by the accused of the
parties to determine the penalty to be imposed.
offense charged. [People v. Alborida (2001)]
[Rule 116, Sec. 4]
It is sufficient to sustain a conviction when
formally and knowingly and voluntarily entered
into. [People v. Acosta (1956)]
General rule: It is a judicial confession of guilt 3. QUALIFIED ADMISSION GUILTY
so there is no need for additional evidence. BUT
[People v. Flores (2000)]
1) If the information did not allege all the
elements of the crime charged. [People OFFENSE NECESSARILY
2) If the information charges a capital CHARGED
offense. [Rule 116, Sec. 5]
3) If the plea of guilt was conditional.
PLEA BARGAINING [Rule 116, Sec. 2]
[Rule 116, Sec. 1(c)]
Definition: Process where the accused, the
Accused must be acquitted when evidence
offended party and the prosecution work out a
allowed to be presented to determine penalty
mutually satisfactory disposition of the case,
shows that he is not guilty.
subject to court approval.
Pleading guilty to a lesser offense or to only
one/some of the counts of a multi-count
116, Sec. 5]
indictment in return for a lighter sentence.
In this case, the procedure is mandatory.
May also include amending of information to
Failure to observe the duties of the trial judge
allege more mitigating circumstances.
amounts to GAD. [People v. Devico (1997)]
A question that may arise: WON an accused
Rationale: To proceed with more care where
may be allowed by the court, with the consent
the possible punishment is in its severest form;
of the offended party and the prosecutor, to
to avoid improvident pleas of guilt. [People v.
plead guilty to a lesser offense which is not
Samontanez (2000)]
included in the crime charged.
Duties of the trial judge:
Made during the pre-trial stage.
1) To conduct a searching inquiry into the
When plea is made without the consent of the
voluntariness and full comprehension of the
prosecutor and the offended party, the
consequences of the plea.
conviction shall not be a bar to another
The plea must be clear, definite and
prosecution for an offense which necessarily
unconditional. There must be well-
includes the offense charged in the former
informed understanding and full
realization of the consequences.
It must be based on a free and
informed judgment. Mere warning of
OFFENDED PARTY [Rule 116, Sec. 10]
facing the supreme penalty of death is
The offended party is required to appear during
insufficient. The judge must ask
the arraignment for purposes of plea
whether the accused was assisted by
bargaining, determination of civil liability and
counsel during CI and PI; ask questions
other matters requiring his presence.
on age, educational attainment and

100% UP LAW UP BAROPS 2008 Page 29 of 227


If he fails to appear notwithstanding notice, the The court shall order his mental
court may, with conformity of the prosecutor, examination and, if necessary, his
allow the accused to plead guilty to a lesser confinement.
offense which is necessarily included in the Degree of unsoundness of mind required:
offense charged. The accused can neither comprehend the
full import of the charge nor can he give an
HAS RESTED ITS CASE The need for suspension may be
The judge cannot on his own grant the change. determined from physical and outward
He may grant only with the approval of the manifestations at the time of arraignment
prosecutor and the offended party and only indicative of a mental disorder which the
when the prosecution does not have sufficient court had observed and defense counsel
evidence to establish guilt. had called attention to. [People v. Alcalde
b. PLEA OF GUILT, BUT ACCUSED An insane person within the meaning of
Art. 12, RPC must be deprived completely
of reason or discernment and freedom of
EVIDENCE the will at the time of committing the
crime. Mere abnormality of mental faculties
The plea shall be deemed withdrawn and a plea does not exclude imputability. [People v.
of not guilty shall be entered for him. [Rule Catanyag (1933)]
116, Sec. 1(d)] 3 major criteria to determine insanity:
[People v. Dungo (1991)]
manifested by a false belief for which
Definition: Plea without proper information as there is no reasonable basis and which
to all the circumstances affecting it; based would be incredible under the given
upon a mistaken assumption or misleading circumstances.
information/advice. [Blacks Law Dictionary] b) IRRESISTIBLE IMPULSE TEST The
It should not be accepted. If accepted, it should accused has lost the power to choose
not be held to be sufficient to sustain a between right and wrong, to avoid the
conviction. [People v. De Ocampo Gonzaga act in question, his free agency being
(1984)] at that time destroyed.
WHEN WITHDRAWAL OF PLEA IS ALLOWED [Rule perverted condition of mental and
116, Sec. 2 and 5] mortal faculties as to render him
Substitution by plea of not guilty may be incapable of distinguishing between
permitted anytime before the judgment of right and wrong.
conviction becomes final. Tests to determine insanity: [People v.
The substitution is not a matter of a strict right. Pascual (1993)]
It is discretion justified by some compelling a) TEST OF COGNITION Complete
reason such has error, fraud, illegality or deprivation of intelligence in
manifest injustice. [People v. Mendoza (1982)] committing the criminal act. It is the
test adopted in this jurisdiction.
The accused is ignorant of the law and has had deprivation of free will.
no education and pleaded guilty without full 2) Prejudicial question exists.
knowledge of its consequences. Prescinds from the idea that it would be
The accused did not thoroughly understand the determinative of guilt or innocence.
complaint. It may be raised during PI. If the
The accused was not advised as to the meaning information is filed in court, it may be
and effect of the technical language. raised as ground to suspend the
arraignment. [Rule 11, Sec. 5]
PROCEDURAL AND SUBSTANTIAL REQUIREMENTS 3) Pending petition for review of the resolution of
IN THE GRANT OF A CHANGE OF PLEA [People v. the prosecutor with the DOJ or Office of the
Mendoza (1982)] President.
Withdrawal need not be verified, but it should The accused should file motion to suspend
have a rational basis. and to secure a ruling on his petition for
Motion for change of plea should be set for review within 60 days from the filing of the
hearing. petition.
Prosecution should be heard on the motion. Rationale: Need to observe judicial
The court should state the reasons for setting courtesy and to avoid legal complications in
aside (or not setting aside) the judgment of case the resolution would be different from
conviction and for permitting (or not the offense for which the accused was
permitting) the accused to substitute a plea of arraigned, especially if it would upgrade the
not guilty for his plea of guilty. offense.



GROUNDS [Rule 116, Sec. 11]

1) Unsound mental condition of the accused at the XI. EXPEDITING TRIAL
time of the arraignment.

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Proffer of exhibits is not allowed. It ought

to be done at the time a party closes the
PRE-TRIAL CONFERENCE presentation of evidence.
4) Waiver of objections to admissibility of
COVERAGE [Rule 118, Sec. 1] evidence;
The court shall order pre-trial in all criminal 5) Modification of the order of trial if the accused
cases cognizable by the Sandiganbayan, RTC admits the charge but interposes a lawful
and MTC/MTCC/MCTC/MeTC. defense;
6) Other matters as will promote a fair and
PERIOD [Rule 118, Sec. 1] expeditious trial of the criminal and civil
General rule: After arraignment and within 30 aspects of the case. Generally, to clear the
days from the time the court acquires desks for trial.
jurisdiction over the person of the accused.
Exception: If a shorter period is provided PRE-TRIAL AGREEMENTS AND
by special laws or SC circulars. SUBMISSIONS [Rule 118, Sec. 2]

PURPOSES [Rule 118, Sec. 1] It must be reduced into writing and signed by
1) Plea bargaining; the accused and counsel.
Definition: Process whereby the accused Otherwise, it cannot be used against the
and the prosecutor work out a mutually accused (i.e. inadmissible in evidence).
satisfactory disposition of the case subject Purpose: [People v. Uy (2000)]
to court approval. 1) To safeguard the rights of the accused
Procedure: If the prosecution and the against improvident or unauthorized
accused agree to engage in plea bargaining agreements or admissions which his
upon being asked by the judge, the counsel may have entered into without
following are proposed: his knowledge.
a) to make or not to oppose favorable 2) To eliminate any doubt on the
recommendations as to the sentence if conformity of the accused to the facts
the accused enters a plea of guilty to agreed upon.
the offense charged; Constitutional right to present evidence is
b) the plea of guilty to a lesser offense; if waived expressly.
the lesser offense is necessarily That the lawyer of the accused confirmed
included in the offense charged, there the Stipulation of Facts does not cure the
is no need to amend the information, defect because both the accused and his
however, if it is not necessarily counsel are required to sign. [Fule v. CA
included, the information should be (1998)]
dismissed and a new one filed; [Rule General rule: Court approval is required.
116, Sec. 2, ROC] Exception: Agreements not covering
c) the presence of mitigating and absence matters referred to in Rule 118, Sec. 1.
of aggravating circumstances or if the
imposable penalty be probationable; Pre-trial stipulations Judicial admissions
and Entered into by parties Made by either party
d) the dismissal of other charges against During pre-trial In the course of the trial
the accused if he enters a plea of guilty conference
of the charge under consideration. Facts agreed on prior to
Where evidence in the possession of the the actual presentation of
fiscal is weak to support the charge, it is evidence or during trial
permissible for him to accept an offer of an
Need not be specially set
affirmative plea to a lesser offense.
out in a judicial order to
Recognition of the provision of RA 6425: bind the parties - admitted
Where the imposable penalty is reclusion fact thus deemed
perpetua to death, the accused shall not be established
allowed to avail of the provision on plea More expedient - relieves
bargaining. court of burden of issuing
See DOJ Circular No. 35 (June 31, 1990), a judicial order
as amended by Circular No. 55 for the
guidelines on plea bargaining.
2) Stipulation of facts; PRE-
PRE-TRIAL ORDER [Rule 118, Sec. 4]
Simplify issues by stipulating or admitting
certain facts. WHEN
This is no longer prohibited in criminal Issued by the court after the pre-trial
cases. [People v. Hernandez (1996)] conference.
General rule: The acts of a lawyer in the Judgment of acquittal based on pre-trial
defense of a case are the acts of his client despite disputed documents and issues of
it extends even to mistakes and fact amounts to grave error and renders
negligence. [People v. Hernandez (1996)] the judgment void. [People v. Santiago,
Exception: If such mistakes would (1989)]
result in serious injustice to the client.
3) Marking for identification of the evidence of CONTENTS
parties; 1) Actions taken;
Shapes up the testimonial and 2) Facts stipulated;
documentary evidence. 3) Evidence marked


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1) Binds the parties. XII. PRESENTING EVIDENCE

The accused must move to correct any
mistake or modify the pre-trial order; AGAINST AND FOR ACCUSED
otherwise, will be deemed to have waived
and be barred from questioning.
2) Limits the trial to matters not disposed of. RIGHTS OF THE ACCUSED
3) Generally, controls the course of action during
trial. Note: See Rule 115 for the rights of the
Exception: If modified by the court to accused.
prevent manifest injustice.
NON-APPEARANCE [Rule 118, Sec. 3] 11]
Upon motion by the proper party.
If counsel for the accused or the prosecutor: Grounds:
1) Does not appear at the pre-trial 1) Accused appears to be suffering from an
conference; and unsound mental condition which effectively
2) Does not offer an acceptable excuse, renders him unable to fully understand the
The accused is not included because of the fear charge against him and to plead
that his constitutional right to remain silent intelligently thereto.
may be violated. The court shall order his mental
Effect: The court may impose proper examination and, if necessary, his
sanctions/penalties: reprimand, fine or confinement.
imprisonment. 2) Prejudicial question.
Purpose: To enforce the mandatory 3) Pending petition for review of the resolution
requirement of pre-trial in criminal cases. [Rule of the prosecutor either at the DOJ or the
118, Sec. 1] Office of the President.
Provided: Period of suspension shall not
exceed 60 days counted from the filing
of the petition with the reviewing office.


RULE 119, SEC. 3[F] [Rule 119, Sec. 4]
1) WON the failure to grant would likely make a
a) Impossible; or
b) Result in a miscarriage of justice.
2) WON the case taken as a whole is novel,
unusual and complex due to:
a) The number of accused;
b) The nature of the prosecution; or
c) It is unreasonable to expect adequate
preparation within the periods of time
3) There should be no continuance because of:
a) Congestion of the courts calendar;
b) Lack of diligent preparation;
c) Failure to obtain available witnesses on the
part of the prosecutor. [Sec. 10, Circular
No. 38-98]


TRIAL [Rule 119, Sec. 5]
General rule: Trial shall commence within 30
days from notice of the order.
Provided: The court may extend, but
extension shall not exceed 180 days, if the
period becomes impractical due to
unavailability of witnesses and other
For the 2nd 12-month period, time limit
shall be 180 days from notice of the order
for new trial. [Sec. 11, Circular No. 38-98]


General rule: Arraignment is to be held within
30 days from the date court acquires
jurisdiction over the person of the accused.
[Rule 116, Sec. 1(g)]
Exception: If a shorter period is provided
by special law or SC circular.
The accused shall have at least 15 days to
prepare for trial, after a plea of not guilty is

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entered. [Rule 119, Sec. 1; Sec. 6, Circular No. e) Orders of inhibition, or proceedings
38-98] relating to change of venue of cases or
Trial shall commence within 30 days from transfer from other courts.
receipt of pre-trial order. [Rule 119, Sec. 1; Art. 8, Sec. 5(4), Consti expressly
Sec. 6, Circular No. 38-98] empowers the SC to order a change
For the 1st 12-calendar-month period following of venue.
the effectivity of SC Circular No. 38-98 on f) Existence of a prejudicial question.
September 15, 1998, the time limit shall be g) Proceeding concerning the accused is
180 days. [Sec. 7, Circular No. 38-98] actually under advisement delay not
For the 2nd 12-mo nth period, 120 days. to exceed 30 days.
For the 3rd 12-month period, 80 days. 2) Absence or unavailability of an essential
The law did not give the time limit after witness.
80 days arraignment can be thus be Absent means that his whereabouts
made any time after 80 days. are unknown or cannot be determined
See Rules 21, 23-25 and 27-29 vis--vis Rule by due diligence.
1, Sec. 3. Unavailable means that his
whereabouts are known but presence
GENERAL PROCEDURE FOR TRIAL for trial cannot be obtained by due
3) Mental incompetence or physical inability to
stand trial.
4) If information is dismissed upon motion of
the prosecution and thereafter a charge is
Definition: Examination before a competent
filed against the accused for the same
tribunal of the facts put in issue in a case, for
offense, the period of delay from the date
the purpose of determining such issue.
the charge was dismissed to the date the
As used in Constitution, it includes hearing,
time limitation would commence to run as
reception of evidence and other processes (i.e.
to the subsequent charge had there been
decision in the first instance, appeal, and final
no previous charge.
and executory decision in last instance).
5) Reasonable period of delay when accused is
In terms of procedure, it is limited to the
joined for trial with a co-accused:
proceedings in the TC after pleadings are
a) Over whom the court has not acquired
finished and the case is ready, until rendition of
b) As to whom the time for trial has not
run and no motion for separate trial
TIME TO PREPARE FOR TRIAL has been granted.
The accused shall have at least 15 days, after a 6) Continuance granted on the basis of
plea of not guilty is entered[Rule 119, Sec. 1] findings set forth in the order that the ends
Purpose: To insure speedy trial. of justice served by taking such action
notice to the parties required. The clerk outweigh the best interest of the public and
notifies parties of the date of arraignment, the accused in a speedy trial. [Sec. 9,
which should be 30 days from the date the Circular 38-98]
court acquires jurisdiction over the person By any court motu proprio, or on
of the accused. Within the same 30 day motion of either the accused or his
period, the court shall set the pre-trial counsel, or the prosecution. The
conference. motion should be based on any of
When the accused pleads not guilty on the grounds specified in Rule 199,
arraignment, he has 15 days to prepare for Sec. 3-4.
trial (including pre-trial).
Mandatory pre-trial is set, then the judge EFFECT OF DELAY [Rule 119, Sec. 9]
issues a pre-trial order. On motion of the accused, information may be
Trial shall commence within 30 days from dismissed on the ground of denial of his right to
receipt of pre-trial order. [Rule 119, Sec. 1; speedy trial.
Sec. 6, Circular No. 38-98] Subject to the rules on double jeopardy.
Proceedings are governed by Rule 119, Hence, if with prejudice, the case cannot be
Sec. 2. revived anymore. Otherwise, revival of the
TC has 180 days from the 1st day of trial to case is proper.
terminate the same. Failure to move for dismissal prior to trial is
a waiver of the right to dismiss under this
Periods of delay are excluded in computing the The accused has the burden of proving the
time within which trial must commence. [Rule ground for the motion.
119, Sec. 3] The prosecution has the burden of going
1) Other proceedings concerning the accused, forward with the evidence to establish the
including but not limited to: exclusion of time under Rule 119, Sec. 3.
a) Examination of physical and mental
condition. Dismissal without Dismissal with
b) Other criminal charges. prejudice prejudice
c) Extraordinary remedies against Allows new suit for the Adjudication on the
interlocutory orders. same cause of action merits, and final
d) Pre-trial proceedings delay must not disposition, barring the
exceed 30 days. right to bring or maintain
an action on the same
claim or cause
Imports contemplation of Is res judicata as to every

100% UP LAW UP BAROPS 2008 Page 33 of 227


further proceedings, and matter litigated GUIDELINES IN THE CONDUCT OF MANDATORY

when they appear in an CONTINUOUS TRIAL [SC Circular 1-89]
order or decree, it shows 1) Not more than 3 cases scheduled for daily trial.
that the judicial act is not
2) Presiding judge shall make arrangements so
intended to be res
judicata of the merits
that a relief prosecutor and CLAO attorney are
Terminates the case always available in case the regular prosecutor
reserving, however, to and CLAO attorney are absent.
the plaintiff the right to 3) Contingency measures must be taken for any
file a new complaint unexpected absence of the stenographer and
which, if filed, is entirely other support staff.
new and different from 4) Strict policy on postponements shall be
the case which was observed.
5) The judge shall conduct the trial with utmost
dispatch, with judicious exercise of the courts
power to control the trial to avoid delay.
General rule: If accused not brought to trial
6) Trial shall be terminated within 180 days from
within the prescribed period, he may move to
initial hearing and appropriate disciplinary
dismiss the information.
sanctions may be imposed on the judge and
Exception: If prosecution shows that delay
the lawyers for failure to comply due to causes
is by reason of any of the grounds specified
attributable to them.
in Rule 119, Sec. 3. Dismissal pursuant to
7) Each party is bound to complete the
Section 3 is subject to the rule on double
presentation of evidence within the trial dates
assigned. After the lapse of said dates, party is
deemed to have completed his evidence
However, upon verified motion based on
serious reasons, the judge may allow
additional trial dates in the afternoon,
The following shall not be interpreted as a bar
provided that said extension will not go
to any charge of denial of the right to speedy
beyond the time limit computed from the
trial guaranteed by Art. 3, Sec. 14(2), Consti:
1st trial date.
1) Any provision of law on speedy trial;
8) Copies of all judgments are furnished the OCA
2) Any rule implementing the same.
within 5 days from rendition.


General rule: Trial, once commenced, shall 1) Accused has been arraigned;
continue from day to day as far as practicable 2) He was duly notified of trial;
until terminated. [Rule 119, Sec. 2] 3) His failure to appear is unjustified.
Exception: It may be postponed for a General rule: The right to be present at ones
reasonable period of time for good cause. trial may be waived.
Granting or refusal of an application for Exception: At certain stages: [Lavides v.
continuance or postponement lies within CA (2000)]
the sound discretion of the court. This 1) Arraignment and plea
discretion will not be interfered with by 2) Promulgation of sentence
mandamus or by appeal, unless GAD is 3) During trial whenever necessary for ID
shown. purposes
It should not unduly force him to trial, nor Exception to the exception: If the
jeopardize the rights and interest of the public. accused unqualifiedly admits in open
The court shall set the case for continuous trial court after arraignment that he is the
on a weekly or other short-term trial calendar person named as the defendant in the
at the earliest possible time so as to ensure case on trial.
speedy trial after consultation with the Purpose: To speed up disposition of cases.
prosecutor and defense counsel. [Rule 119,
Sec. 2] ARCHIVING CRIMINAL CASE [SC Circular 7-A-82]
If the accused remains at large for 6 months
TIME LIMITATION from delivery of the warrant to the proper
General rule: In no case shall the entire trial peace officer.
period exceed 180 days from the 1st day of Judges who fail to comply may be held
trial. [Rule 119, Sec. 2] administratively liable.
While failure of trial judge to observe this
does not result in loss of jurisdiction, it may 3. POSTPONEMENTS, CONTINUANCE
subject him to disciplinary sanctions.
Hence, he should just request the SC for
additional trial dates to terminate the
If the court finds that the ends of justice served
by taking such action outweigh the best
interest of the public and the accused in a
When otherwise authorized by the SC;
speedy trial [Rule 119, Sec. 3(f)]
[Sec. 8, Circular 38-98]
When special laws or circulars provide
for a shorter period of trial. [Rule 119,
Sec. 2]

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Trial procedure as outlined ordinarily followed Evidence presented by one party may be
to ensure orderly conduct of litigations to utilized by the adverse party as evidence for
protect substantive rights. his own cause of action.
Deviation from the regular course should
always take into consideration the rights of WHEN PROSECUTION IS DENIED DUE PROCESS
all parties. Capricious dismissal of information is void.
To safeguard the right of the accused to be It will not constitute proper basis for the
presumed innocent until the contrary is proved. claim of double jeopardy. [Saldana v. CA
Deviation by the judge which denies the (1990)]
accused of his day in court or the It deprives the State of a fair opportunity to
prosecution of due process renders the prosecute and convict.
judgment invalid. [Alonte v. Savellano
The form of trial is a matter of public order and
interest. [Alejandro v. Pepito (1980)] Definition: Objection by one of the parties to
the effect that the evidence which his
WHEN COURT MAY MODIFY THE ORDER adversary produced is insufficient in point of
If the accused admits the act/omission charged law, whether true or not, to make out a case or
in the complaint/information but interposes a sustain the issue. [Gutib v. CA (1999)]
lawful defense, the order of trial may be There is no material difference between the
modified. [Rule 119, Sec. 11(e)] Motion to Quit of the accused before the TC
The court may allow the accused to present his and the demurrer to evidence
defense first, and after give the prosecution the The only difference: If the MTD is ordered it
opportunity to present its rebuttal evidence. is tantamount to an acquittal, but the order
Strict observance depends upon the of denial of the demurer to evidence is not
circumstances obtaining in each case at the reviewable by appeal or certiorari before
discretion of the trial judge. judgment.
The primary consideration is WON the TC Purpose:
still has jurisdiction over the case, as when It is adopted to prevent the filing of
such evidence is allowed before the TC demurrer based on frivolous and flimsy
renders its decision. [People v. Januario grounds.
(1997)] The new rule recognizes criminal cases in
If the accused objects to reverse procedure, which presentation of defense evidence will
court should follow the order of trial as only entail a waste of time.
provided for in ROC. How initiated: [Rule 119, Sec. 23]
1) Court motu propio, after giving the
COLD NEUTRALITY OF THE IMPARTIAL JUDGE prosecution the opportunity to be heard;
He must not only be impartial, but must also 2) Upon demurrer to evidence filed by the
appear to be so. accused:
He must remain silent or passive. a) With leave of court;
Although he may properly intervene in the b) Without leave of court.
presentation of evidence to prevent
unnecessary waste of time. [Cosep v. People MOTION FOR LEAVE TO FILE DEMURRER [Rule 119,
(1998)] Sec. 23]
General rule: It is within the courts It must specifically state its grounds.
prerogative and duty to ask clarificatory It must be filed within a non-extendible period
questions. of 5 days after the prosecution rests.
Exception: Questions to witnesses which Prosecution may then oppose within a non-
will have the effect of building the case for extendible period of 5 days from receipt.
one of the parties amounts to undue If leave of court granted, demurrer must be
interference. [People v. Gallerno (1998)] filed within a non-extendible period of 10 days
from notice. Prosecution may oppose within a
a. PROSECUTION EVIDENCE similar period from its receipt.

The prosecution shall present evidence to EFFECT OF GRANTING MOTION FOR LEAVE TO FILE
prove: [Rule 119, Sec. 11(a)] DEMURRER
1) The charge; The court may dismiss the action on the ground
2) In proper cases, also the civil liability. of insufficiency of evidence. [Rule 119, Sec. 23]
Sufficient evidence for frustrating a demurrer is
PRESENTATION OF THE EVIDENCE-IN-CHIEF evidence that proves: [Gutib v. CA (1999)]
The matter of presenting witnesses for the Commission;
prosecution is not for the accused or TC to Precise degree of participation.
control discretion belongs to the prosecuting E.g. Proof of the possession of recently
officer. [People v. Jamero (1997)] stolen goods taken together with proof of
Prosecution may call witnesses other than the commission of the theft, may be and
those named in the complaint/information. generally will be sufficient to establish the
It is given the discretion as to WON to use guilt of the accused, if there is nothing in
the offended party as a witness. the record to raise a doubt as to the guilty
Their failure to present such number of character of the possession, though there is
witnesses as stated in the information no presumption to that effect. [US v.
cannot be assigned as an error. Catimbang (1916)]
The accused has the right to demand the
list of prosecution witnesses. EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE

100% UP LAW UP BAROPS 2008 Page 35 of 227


Order denying the motion for leave or order There must be allegation and proof that the
denying the demurrer itself, is not reviewable judge has been unduly influenced, not simply
by appeal or by certiorari before judgment. that he might be.
[Rule 119, Sec. 23] The right to a fair trial is not incompatible with
It is interlocutory, but it may be assigned as a free press.
error and reviewed in the appeal that may be The press guards against the miscarriage of
taken from the decision on the merits [Cruz v. justice by subjecting the process to extensive
People (1999)] public scrutiny and criticism.


General rule: Prosecution and defense may, in
Filed w/ leave of court Filed w/out that order, present rebuttal and sur-rebuttal
leave of court
evidence. [Rule 119, Sec. 11(c)]
May adduce evidence in Waives the right to present
his defense evidence
Exception: The court, in furtherance of
Purpose of obtaining Submits the case for justice, may permit them to present
leave of court: To judgment on the basis of additional evidence bearing upon the main
determine WON demurrer the evidence for the issue.
was filed merely to stall prosecution
the proceedings REBUTTAL EVIDENCE
Implied leave of court is If there are 2 or more Definition: Any evidence to explain, repeal,
no longer sufficient and accused and only one counteract or disprove the adversarys proof.
prevents accused from presents a demurrer
Receivable only where new matters have
presenting evidence [e.g. without leave of court:
accused files motion with General rule: The been developed by the evidence of one of
reservation to present court may defer the parties.
evidence in case motion is resolution until Generally limited to a reply on new points.
denied] decision is rendered It is permissible as long as the accused was not
on the other accused taken by surprise and was not prevented from
Exception: If it introducing evidence in sur-rebuttal.
can be shown
from the decision
that the resolution
on the demurrer Definition: Proof to meet or refute those new
was rendered not matters taken up by the adverse party during
only on the basis the rebuttal stage, or to clarify matters that
of the were beclouded or made ambiguous.
evidence but also e. SUBMISSION OF CASE
on the evidence
adduced by his
co-accused General rule: case deemed submitted for
decision upon admission of evidence of the
parties. [Rule 119, Sec. 11(d)]
c. DEFENSE EVIDENCE Exception: If the court directs them to
argue orally or to submit written
The accused may present evidence to prove:
Mere filing of motion to reopen must not
[Rule 119, Sec. 11(b)]
automatically vacate a joint agreement and
1) His defense;
order submitting the case for decision. [Cruz v.
2) Damages, if any, arising from the issuance
People (1999)]
of a provisional remedy in the case.
The matter of reopening for reception of further
That it rests with the accused to rebut the
evidence after either the prosecution or the
inference of fact as to his guilt is not to compel
defense has rested, is within the discretion of
him to give evidence against himself. It is
the court. [People v. Concepcion (1949)]
merely to give him the opportunity to submit
evidence after the prosecution has introduced
evidence sufficient to sustain a conviction,
unless rebutted or satisfactorily explained. [US
It may not be claimed by the parties as a
v. Catimbang (1916)]
matter of right.
As a matter of practice: Courts usually allow
parties to crystallize their respective positions
General rule: That the negligence of counsel
through the submission of arguments or
binds the client is based on the principle that
any act performed by a lawyer within the scope
of his authority is regarded as an act of the
Exception: Where reckless or gross
negligence deprives the client of due 1. TRIAL OF SEVERAL ACCUSED
process of law, or when the application of JOINTLY CHARGED
the rule results in the outright deprivation
of ones property through a technicality. General rule: They shall be tried jointly. [Rule
[Salonga v. CA (1997)] 119, Sec. 16]
Exception: If the court orders separate
WHEN PUBLICITY IS PREJUDICIAL TO THE RIGHTS trial for one or more accused, upon motion
OF THE ACCUSED [Larranaga v. CA (1998)] of the prosecutor or any accused.

100% UP LAW UP BAROPS 2008 Page 36 of 227


The grant of a separate trial rests in the adduced in one case, because the accused
sound discretion of the court and is not a is entitled to a trial in each case. [US v.
matter of right to the accused. [Talino v. Tanjuatco (1993)]
Sandiganbayan (1987)]
Purpose: To preclude wasteful expenditure of 3. DISCHARGE OF AN ACCUSED TO BE
judicial resources. It is also in consonance with
the right of the accused to a speedy trial.
Accused are jointly charged if the charges are
founded on the same facts or form part of a
General rule: It is the duty of the prosecutor
series of offenses of the same character.
to include all the accused in the
E.g. Adulteress or her lover may move for
separate trials. Although it is required that
Exception: Prosecutor may ask the court
the husband must include both in the
to discharge one of them after complying
complaint, the statute does not so require
with the conditions prescribed by law. [Rule
that they be tried together.
119, Sec. 17]
General rule: Motion for separate trial must
This applies only when the information has
be raised before trial has commenced, before
already been filed in court.
the prosecution commences presenting its
evidence. [Talino v. Sandiganbayan (1987)]
REQUISITES [Rule 119, Sec. 17]
1) Two or more persons are jointly charged with
In the interests of justice.
the commission of any offense.
If there appears to be an antagonism in
2) Petition for discharge is filed before the defense
the respective defenses of the accused.
has offered its evidence. [People v. Anion
[Talino v. Sandiganbayan (1987)]
Evidence in chief of the prosecution
3) Hearing in support of the discharge.
shall remain on record against all
Prosecution to present evidence.
the accused, with right of rebuttal
Sworn statement of each proposed state
on the part of the fiscal in the
separate trial of the other accused.
4) The court is satisfied of the ff:
General rule: If separate trial is granted, it is
a) Absolute necessity for the testimony;
the duty of the prosecutor to repeat and
He alone has the knowledge of the
produce all its evidence at each and every trial.
crime, and not when his testimony
would simply corroborate or strengthen
1) It had been agreed by the parties that
the evidence in the hands of the
it would not have to be repeated at the
prosecution. [Flores v. Sandiganbayan
2nd/etc. trial;
2) All the accused were present during the
E.g. When there is a conspiracy and the
presentation of evidence by the
crime is committed clandestinely, the
discharge of a conspirator is necessary
3) Their attorneys had the opportunity to
to testify against the other conspirator.
cross-examine the witnesses.
[Chua v. CA (1996)]
It is permissible to render only one decision on
b) There is no other direct evidence available
all cases despite their separate trials.
for the proper prosecution of the offense,
except the testimony;
2. CONSOLIDATION OF TRIALS OF c) The testimony can be substantially
RELATED OFFENSES corroborated in its material points;
d) Accused does not appear to be the most
Charges for offenses founded on the same facts guilty;
or forming part of a series of offenses of similar Gravity or nature of acts he committed
character, may be tried jointly at the discretion are compared to those of his co-
of the court. [Rule 119, Sec. 22] accused.
Purpose: Attainment of justice with the least Not merely the fact that in law the
expense and vexation to the party litigants. same penalty is imposable on all.
General rule: Consolidation is addressed to e) Accused has not, at any time, been
the sound discretion of the court. convicted of any offense involving moral
Exception: Joint hearing is a matter of turpitude
1) If 2 or more cases are tried before the PROCEDURE [Rule 119, Sec. 17]
same judge; 1) Motion of the prosecution before resting its
2) Even filed with the different branches of case.
the same court, if one of such cases 2) Hearing in support of the discharge:
has not been partially tried. Prosecution to present evidence.
The several actions lose their separate Sworn statement of each proposed state
identities and become a single action in which a witness.
single judgment is rendered. 3) Court may either:
Limitations on consolidation: a) Direct one or more of the accused to be
The court cannot convict an accused of a discharged with their consent so that they
complex crime constitutive of the various may be witnesses for the State.
crimes alleged in the consolidated cases Evidence adduced in support of the
It is reversible error where the court discharge shall automatically form part
convicted an accused for 2 offenses in one of the trial.
of two cases in the absence of a
consolidation and on the basis of evidence

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Question against the order to discharge relevant facts, is convinced that the
must be raised in the TC; it cannot be requirements of this Act and its IRR
raised on appeal. have been complied with, it shall admit
b) Deny the motion for discharge; said applicant to the Program, require
The sworn statement of the accused said witness to execute a sworn
shall be inadmissible in evidence. statement detailing his
knowledge/information on the
CO-ACCUSED WHO CANNOT BE DISCHARGED commission of the crime, and
UNDER RULE 119, SEC. 17 thereafter issue the proper certification.
If he was tried separately and has already Witness in legislative investigations [Sec. 4, RA
testified as witness without having been 6981] In case of legislative investigations in
previously discharged. aid of legislation, a witness, with his express
consent, may be admitted into the Program
WITNESS IMMUNITY FROM SUIT upon the recommendation of the legislative
Justification for the grant of immunity: The committee where his testimony is needed when
need of the State to obtain the conviction of in its judgment there is pressing necessity
the more guilty criminals who will probably therefor: Provided, That such recommendation
elude the long arm of the law. is approved by the President of the Senate or
the Speaker of the House of Representatives,
Transactional Use and derivative use as the case may be.
immunity immunity State witness [Sec. 10, RA 6981] Any person
Can no longer be Only assured that who has participated in the commission of a
prosecuted for any testimony and evidence crime and desires to be a witness for the State,
offense arising out of the will not be used against
can apply and, if qualified as determined in this
act him in a subsequent
prosecution Act and by the DOJ, shall be admitted into the
Program whenever the following circumstances
are present:
OTHER MODES OF DISCHARGE OF THE ACCUSED a) The offense in which his testimony will be
TO BE A STATE WITNESS used is a grave felony as defined under the
RPC or its equivalent under special laws;
1) Witness Protection Program. [RA 6981] b) There is absolute necessity for his
RA 6981 vesting in the DOJ the power to testimony;
determine who can qualify as a witness and c) There is no other direct evidence available
who shall be granted immunity from for the proper prosecution of the offense
prosecution is not unconstitutional. The committed;
power to choose who shall be a state d) His testimony can be substantially
witness is not an inherent judicial corroborated on its material points;
prerogative. Under Rule 119, the court is e) He does not appear to be most guilty; and
given the power to discharge a state f) He has not at any time been convicted of
witness only because it has already any crime involving moral turpitude.
acquired jurisdiction over the crime and the An accused discharged from an information
accused. [Webb v. De Leon (1995)] or criminal complaint by the court in order
Admission into the Program [Sec. 3, RA that he may be a State Witness pursuant to
6981] Any person who has witnessed or Rule 119, Sec. 9-10 may upon his petition
has knowledge/information on the be admitted to the Program if he complies
commission of a crime and has testified or with the other requirements of this Act.
is testifying or about to testify before any Nothing in this Act shall prevent the
judicial or quasi-judicial body or any discharge of an accused, so that he can be
investigating authority, may be admitted used as a State Witness under Rule 119.
into the Program. Provided, that: Effect of admission of a State Witness into the
a) The offense in which his testimony will Program [Sec. 12, RA 6981] The certification
be used is a grave felony as defined of admission into the Program by the DOJ shall
under the RPC or its equivalent under be given full faith and credit by the
special laws; provincial/city prosecutor who is required not
b) His testimony can be substantially to include the Witness in the criminal complaint
corroborated in its material points; or information and if included therein, to
c) He or any member of his family within petition the court for his discharge in order that
the 2nd civil degree of he can utilized as a State Witness. The court
consanguinity/affinity is subjected to shall order the discharge and exclusion of the
threats to his life or bodily injury or said accused from the information.
there is a likelihood that he will be Admission into the Program shall entitle
killed/forced/intimidated/harassed/ such State Witness to immunity from criminal
corrupted to prevent him from prosecution for the offense/s in which his
testifying, or to testify falsely or testimony will be given or used and all the
evasively, because or on account of his rights and benefits provided under Section 8
testimony; and hereof.
d) He is not a law enforcement officer, Compelled testimony [Sec. 14, RA 6981] Any
even if he would be testifying against Witness admitted into the Program pursuant to
the other law enforcement officers. In Sections 3 and 10 of this Act cannot refuse to
such a case, only the immediate testify or give evidence or produce
members of his family may avail books/documents/records/writings necessary
themselves of the protection provided for the prosecution of the offense/s for which
for under this Act. If the DOJ, after he has been admitted into the Program on the
examination of said applicant and other ground of the constitutional right against self-

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incrimination, but he shall enjoy immunity from any matter concerning which he is
criminal prosecution and cannot be subjected compelled, after having claimed the
to any penalty or forfeiture for any privilege against self-incrimination, to
transaction/matter/thing concerning his testify and produce evidence, documentary
compelled testimony or or otherwise.
books/documents/records/writings produced.
In case of refusal of said Witness to Under such terms and conditions as
testify or give evidence or produce it may determine taking into account the
books/documents/records/writings, on the pertinent ROC provisions, the Ombudsman
ground of the right against self-incrimination, may grant immunity from criminal
and the state prosecutor or investigator prosecution to any person whose
believes that such evidence is absolutely possession and production of
necessary for a successful prosecution of the documents/evidence may be necessary to
offense/s charged or under investigation, he, determine the truth in any
with the prior approval of the DOJ, shall file a hearing/inquiry/proceeding being
petition with the appropriate court for the conducted by the Ombudsman or under its
issuance of an order requiring said Witness to authority, in the performance or in the
testify, give evidence or produce the furtherance of its constitutional functions
books/documents/records/writings described, and statutory objectives. The immunity
and the court shall issue the proper order. granted under this and the immediately
The court, upon motion of the state preceding paragraph shall not except the
prosecutor or investigator, shall order the witness from criminal prosecution for
arrest and detention of the Witness in any jail perjury or false testimony nor shall he be
contiguous to the place of trial/investigation exempt from demotion or removal from
until such time that the Witness is willing to office.
give such testimony or produce such
documentary evidence.
Any refusal to appear or testify
RA 6981 Rule 119, Sec. 17
pursuant to the aforecited provisions shall
Limited only to grave Applies to all felonies be subject to punishment for prompt
felony under the RPC or contempt and removal of the immunity
its equivalent under a from criminal prosecution.
special law
Absolute necessity for It would suffice that there 3) Immunity under PD 749.
testimony is no other direct
It grants immunity from prosecution to
evidence for the proper
prosecution of the offense givers of bribes and other gifts and to their
committed except the accomplices in bribing public officials.
testimony of the accused 4) Immunity under Sec. 5, EO 14-A.
Witness is automatically Witness must still apply PCGG is authorized to grant immunity to
entitled to certain rights for the employment of any person who provides information or
and benefits said rights testifies in any investigation conducted by
Any member of the The same is not required it to establish the unlawful manner in which
family of the person
the property/ies were acquired or
applying for admission
within the 2nd civil
accumulated where such
degree of consanguinity information/testimony is necessary to
or affinity is subjected to ascertain/prove guilt or civil liability.
threat to his life or injury, The immunity granted shall be continued to
as to prevent him from protect the witness who repeats such
testifying falsely or testimony before the Sandiganbayan when
evasively required to do so.
Witness applying is not a No limitation 5) Immunity under Sec. 28, RA 6646.
law enforcement officer
The COMELEC may grant immunity from
Witness need not be Witness is charged in
charged elsewhere court as one of the
prosecution to any acceptor of bribed
accused money to vote for or against a candidate to
Immunity is granted by Immunity is granted by be used as witness in the prosecution of
the DOJ the court election offense of vote-buying.

2) The Ombudsmans power to grant immunity. EFFECT OF DISCHARGE

[Sec. 17, RA 6770] General rule: The order of discharge shall:
Ombudsman is given authority to grant [Rule 119, Sec. 18]
immunity to any person whose testimony is 1) Amount to an acquittal of the discharged
necessary to determine the truth. accused;
In all hearings/inquiries/proceedings of the 2) Bar future prosecutions for the same
Ombudsman, including PI, no person offense.
subpoenaed to testify as a witness shall be Exception: If the accused fails/refuses to
excused from attending and testifying or testify against his co-accused in accordance
from producing with his sworn statement constituting the
books/papers/correspondence/memoranda/ basis for his discharge.
records on the ground that the testimony Any error in asking for and in granting the
or evidence, documentary or otherwise, discharge cannot deprive the discharged of the
required of him, may tend to incriminate acquittal and the constitutional guaranty
him or subject him to prosecution: against double jeopardy. [People v. Verceles
Provided, That no person shall be (2002)]
prosecuted criminally for or on account of

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Subsequent amendment of the information Reasons for preventive detention of the

does not affect discharge. [People v. Taruc accused:
(1962)] 1) Charge of a bailable offense but he has no
means to post bail;
4. RE-OPENING OF TRIAL 2) Charged of a non-bailable offense;
3) Service of a term of imprisonment in any
At any time before finality of the judgment of penal institution.
conviction, the judge may reopen the PAOs duty to perform the following:
proceedings motu proprio or upon motion 1) Promptly undertake:
with hearing in either case. [Rule119, Sec. 24] a) To obtain the presence of the prisoner
The right of the prosecutor does not extend for trial;
to the filing of the MNT and also in the b) To cause a notice to be served on the
modification of the judgment - only the person having custody of the prisoner,
accused is allowed to do so. requiring such person to so advise the
Ground: To avoid a miscarriage of justice. prisoner of his right to demand trial.
An order re-opening the case to give the Upon receipt, the custodian shall
prosecution opportunity to submit promptly advise the prisoner of the
additional evidence without giving the charge and of his right to demand
accused the opportunity to rebut the trial.
evidence, is invalid. [Santiago v. If at anytime the prisoner informs
Sandiganbayan (1999)] his custodian that he demands such
Proceedings shall be terminated within 30 days trial, the latter shall cause notice to
from the order granting it. be sent promptly to the PAO.
2) Upon receipt of notice from the custodian,
the PAO shall promptly seek to obtain the
presence of the prisoner for trial.
3) When the custodian receives from the PAO
1. WHEN PROPER OFFENSE IS NOT a properly supported request, the prisoner
CHARGED shall be made available accordingly.

WHEN APPLICABLE [Rule 119, Sec. 19] SANCTIONS ON COUNSELS [Rule 119, Sec. 8]
If there is mistake in charging the proper Sanctions may be imposed on the private
offense and the accused cannot be convicted of counsel for the accused, the PAO or the
the offense charged or any other offense prosecutor
necessarily included therein, and the mistake Kinds of sanctions:
becomes manifest at any time before 1) Criminal;
judgment. 2) Administrative;
3) Contempt of court.
PROCEDURE [Rule 119, Sec. 19] Punishable acts/omissions:
1) The accused shall not be discharged if there 1) Knowingly allowing the case to be set for
appears good cause to detain him. trial without disclosing that a necessary
2) The court shall: witness would be unavailable.
a) Commit the accused to answer for the 2) Filing a motion solely for delay which he
proper offense; and knows is totally frivolous and without merit.
b) Dismiss the original case upon the filing of 3) Making a statement for the purpose of
the proper information. obtaining continuance which he knows to
be false and which is material to the
 Rationale: The accused has a right to be granting of a continuance;
informed of the nature and the cause of the 4) Willfully failing to proceed to trial without
accusation against him. justification.
 Purpose: It is primarily directed to the TC to  Applicable sanctions: [Sec. 13, Circular 38-98]
invest it with authority to direct by itself 1) On private defense counsel: Fine not
dismissal and refiling, provided that the exceeding P20K;
accused would not be placed in double 2) On counsel de oficio, PAO or public
jeopardy. prosecutor: Fine not exceeding P5K;
3) Denial to any defense counsel or prosecutor
2. DUTIES OF COUNSELS AND the right to practice before the court trying
the case for a period not exceeding 30
4) Any punishment is without prejudice to any
The DOJ Public Attorneys Office (PAO) has the appropriate criminal action or other
duty of assisting an accused who is not sanctions authorized under the ROC.
financially capable to have his own counsel. Purpose:
Purpose: [Rule 119, Sec. 7] 1) To speed up the trial and disposition of the
1) To inform the detained accused of his case;
right to trial; 2) To force counsels to go to court ready for
2) Right of the PAO to have access to trial and not merely ready for
confer with him and prepare him for postponement.
Sec. 7; Sec. 12, Circular No. 38-98]

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An acting prosecutor is appointed when the

prosecutor and his assistant/deputy are JUDGMENT The adjudication by the court
disqualified to act. [Rule 119, Sec. 20] that the accused is guilty or not guilty of the
Grounds for disqualification of a prosecutor: offense charged and the imposition on him of
[Rule 137, Sec. 1] the proper penalty and civil liability, if any.
1) He, or his wife/child, is pecuniarily [Rule 120, Sec. 1]
interested as heir/legatee/creditor or Being aware of the provisions of the law,
otherwise; the judge acted with GADALEJ in refusing
2) He is related to either party within the 6th to impose a penalty to which he disagrees.
degree of consanguinity or to counsel [People v. Veneracion (1995)]
within the 4th degree, computed according
to the rules of civil law. Judgment Opinion Ratio
3) He has been decidendi
executor/administrator/guardian/ trustee or Pronounces the Informal Provides for the
counsel; disposition of expression of the basic reason for
the case views of the court the judgment
4) He has presided in any inferior court when
Filed with clerk Cannot prevail
his ruling/decision is the subject of review, of court against its final
without the written consent of all the order or decision
parties interest, signed by them and Forms no part of
entered upon record. the judgment,
5) For any other reason. [Rule 119, Sec. 20] though they may
be combined in
PROCEDURE [Rule 119, Sec. 20] one instrument
1) The judge or the prosecutor shall communicate
with the DOJ Secretary. ELEMENTS OF A JUDGMENT [Gonzalo Puyat and
2) The DOJ Secretary appoints an acting Sons v. Auditor General (1969)]
prosecutor. 1) Controversy presented;
2) Authority to decide;


1) Written in official language.
General rule: The accused has the right to a If given verbally, it is incomplete. It does
public trial. not have an effect before it was actually
Exception: If the judge excludes public reduced to writing and signed by the judge.
from the trial. [Rule 119, Sec. 21] [People v. Catolico (1972)]
A verbal order dismissing the case can be
Motu proprio On motion of the rescinded without prejudicing the rights of
accused the accused No double jeopardy arises.
Evidence to be produced Court may also exclude
[Abaya v. Garcia (1988)]
during the trial is the public from the trial,
offensive to decency or except court personnel The remedy for a verbal judgment is to
public morals and counsels of parties appeal or file a petition for mandamus to
compel the court to put the decision in
A party to the action cannot be excluded writing.
though he himself is a witness. 2) Personally and directly prepared by the judge.
The public may be excluded when the offended Every decision must state distinctly and
party in cases involving private crimes testifies. clearly the factual and legal basis therefore.
[Art. 8, Sec. 6, Consti]
Judges must nonetheless be allowed to
synthesize and simplify their decisions
considering the heavy load of trial judges
6. DESISTANCE BY THE OFFENDED for as long as there is compliance with
PARTY minimum essence of factual and legal
He may quote from narration of facts
by the OSG in his brief or memoranda
of both parties and adopt the same as
his own. [Hernandez v. CA (1993)]
Common sense dictates that he be
given complete liberty to express his
opinion, unrestrained by any fear that a
higher court might call down. [People v.
Meneses (1998)]
3) Signed by the judge.
The judge who presided over the entire trial
would be in a better position to ascertain the
truth or falsity of the testimonies.
But the judge who only took over can render
a valid decision by relying on TSN. It does
not violate due process. [People v. Badon
XIII. DECIDING GUILT OR NON- 4) Contains clearly and distinctly a statement of
GUILT (JUDGMENT) facts proved and the law upon which judgment
is based.

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There is sufficient compliance if the decision After finality, TC is divested of authority to

summarizes the evidence of both parties, amend/alter the judgment, except to correct
synthesizes the findings and concisely clerical errors.
narrates how the offense was committed.
Failure on the part of the TC to make a b. JUDGMENT OF ACQUITTAL
finding of facts is a revocable error.
There is no law that requires a specific The judgment shall state whether:
finding of facts with respect to the evidence 1) The evidence of the prosecution absolutely
for the defense. [Reyes v. People (2006)] failed to prove the guilt of the accused; or
2) It merely failed to prove his guilt beyond
#2 does not extinguish the civil liability
1. CONTENT OF JUDGMENT [Rule 120, arising from his acts, since the civil
Sec. 2] liability arose not from a crime but from
the damage caused by such acts.
In either case, the judgment shall determine if
the act/omission from which the civil liability
might arise did not exist.
The judgment of conviction shall state:
General rule: The court has authority to
1) The legal qualification of the offense
express disapproval of certain acts even if
constituted by the acts committed by the
judgment is for acquittal.
accused and the aggravating/mitigating
Exception: The court is not permitted to
circumstances which attended its
censure the accused in a judgment for
acquittal no matter how light, a censure
If a decision does not contain a
is still a punishment.
dispositive portion but the last two
No court has the power to mete out
paragraphs embody the courts
punishment. A finding of guilt must
conclusions, then the decision is valid.
precede the punishment.
[People v. Valeriano (1993)]
This reprehension, however, must be
TC should express not only its
relevant to the issue in the case. If
conclusion but also the provision of the
irrelevant/impertinent, they should be
law violated for the purpose of informing
stricken out or expunged from the record
the accused of the nature of the crime
like any other extraneous matters. [People
and the law penalizing the same.
v. Meneses (1998)]
No need to state the particular
Acquittal extinguishes civil liability only when
paragraph and article in the RPC, so
the judgment includes a declaration that the
long as the offense is clearly understood
facts from which the civil liability might arise
from the facts.
did not exist.
Mere failure to specify the particular
The court may nonetheless hold the accused
provision of law does not invalidate the
civilly liable in favor of the offended party, or it
decision, if it did actually apply the
may deny the award of civil damages expressly
proper provision.
or impliedly by being silent on the matter.
2) The participation of the accused in the
The losing party may appeal the ruling on the
offense, whether as principal, accomplice or
civil liability, as in any other ordinary appeal, in
accessory after the fact.
his name and not in the name of the People
3) The penalty imposed upon the accused.
A separate civil action may be warranted
Penalty should not be imposed in the
alternative. There should be no doubt as
1) Additional facts have to be established;
to the offense committed and the
2) More evidence has to adduced; or
penalty for it.
3) Where the criminal case has been fully
4) The civil liability or damages caused by his
terminated and a separate complaint would
wrongful act/omission to be recovered from
be just as efficacious or even more
the accused by the offended party, if there
is any, unless the enforcement of the civil
liability by a separate civil action has been
It is immediately final and executor.
The State may not seek its review without
placing the accused in double jeopardy.
FINAL [Rule 120, Sec. 7]
Judgment becomes final:
1) After the lapse of the period for perfecting
Definition: A finding of not guilty based on the
an appeal;
merits, either:
2) When the sentence has been
1) The evidence does not show that his guilt is
partially/totally satisfied or served; or
beyond reasonable doubt; or
3) The accused has expressly waived in
2) A dismissal of the case after the
writing his right to appeal or he applies for
prosecution has rested its case and upon
motion of the accused on the ground that
Before the judgment becomes final, TC has
the evidence fails to show beyond doubt
plenary power to make, either on motion or
that accused is guilty.
motu propio, such amendment or alterations as
The judge may find that the acts although
it may deem best, within the frame of law, to
unethical, immoral or otherwise reprehensible
promote the ends of justice.
do not constitute a crime within the purview
of the penal law. [People v. Meneses (1998)]

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The court has no power to order reinstatement vested in it under the allegations in the
and backwages at the time of suspension of information.
accused from work. [PNRC v. Domingo (1971)] Exception to the exception: Where
Acquittal based on reasonable ground does not there are facts that supervened after
bar a separate civil action based on quasi- the filing of the information which
delict. [Lontoc v. MD Transit (1988)] change the nature of the offense.


Terminates the case PROVED [Rule 120, Sec. 5]
Decision on the merits Not on the merits and no The offense charged necessarily includes the
based on a finding that finding of guilt is made
offense proved when some of the essential
the accused is not guilty
elements/ingredients of the former, as alleged
in the complaint/information, constitute the
2. JUDGMENT ON DUPLICITOUS An offense charged is necessarily included in
INFORMATION the offense proved when the essential
ingredients of the former constitute or form
General rule: Complaint/information must part of those constituting the latter.
charge only one offense.
Exception: Cases in which existing laws EFFECT OF THE VARIANCE
prescribe a single punishment for various The accused shall be convicted of: [Rule 120,
offenses. Sec. 4]
General rule: Duplicitous information is 1) The offense proved which is included in the
subject to a MTQ. offense charged; or
Exception: Defect is waived when accused 2) The offense charged which is included in
fails to move for quashal. the offense proved
The right to be informed of the charges has not
WHERE ACCUSED FAILS TO OBJECT TO 2 OR MORE been violated because where an accused is
OFFENSES CHARGED IN A SINGLE charged with a specific crime, he is duly
COMPLAINT/INFORMATION BEFORE TRIAL [Rule informed also of lesser crimes/offenses
120, Sec. 3] included therein. [People v. Villamar (1998)]
1) The court may convict him of as many offenses Where a complex crime is charged and the
as are charged and proved; and evidence fails to support the charge as to one
Exception: One of the offenses has been a of the component offenses, the accused can be
necessary means for committing the other convicted of the other.
offense and where both have been the The accused should move to quash on the
result of a single act. ground of duplicity to prevent him from
2) Impose on him the penalty for each offense, being convicted of as many component
setting out separately the findings of fact and offenses as may be proved.
law in each offense.
Maximum duration of offense: Follow the 3- STATE LIABILITY FOR UNJUST CONVICTION
fold rule on the service of penalty. The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
3. VARIANCE BETWEEN WHAT WAS victims of unjust imprisonment/detention and
victims of violent crimes. [RA 7309]
CHARGED AND WHAT WAS PROVEN Requirements for compensation:
1) Unjust accusation;
General rule: The defendant can be convicted 2) Unjust conviction; and
only of the crime with which he is charged. It is the same as knowingly rendering
Rationale: He has the right to be informed an unjust judgment - It is contrary to
of the nature of the offense with which he law or is not supported by the evidence
is charged before he is put on trial. [People and the same is made with conscious
v. Guevarra] and deliberate intent to do an injustice.
However, minor variance between the [Art. 204, RPC]
information and the evidence 3) Unjust imprisonment.
Does not alter the nature of the
Does not determine or qualify the crime
or penalty;
Cannot be ground for acquittal. PROOF BEYOND REASONABLE DOUBT
Exception: He can be convicted of an Degree of proof which produces conviction in an
offense proved provided it is included in the unprejudiced mind. [People v. Bacalzo (1991)]
charge, or of an offense charged which is REASONABLE DOUBT Doubt engendered by
included in that which is proved. [Rule 120, an investigation of the whole proof and an
Sec. 4] inability, after such investigation, to let the
The accused can be convicted of an mind rest upon the certainty of guilt.
offense only when it is both charged Rationale: It is always better to err in
and proven. acquitting than in punishing. [People v. Lizada
The mere fact that the evidence (1993)]
presented would indicate that a lesser
offense outside the courts jurisdiction 5. EFFECT ON EXISTING PROVISIONS
was committed does not deprive the
court of its jurisdiction, which had

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Nothing in Rule 120 shall affect any existing by recording the judgment in the
provisions in the laws governing the following: criminal docket and serving him a copy
[Rule 120, Sec. 9] at his last known address or thru his
1) Suspension of sentence. counsel.
2) Probation.
Sec. 6]
General rule: Presence of the accused is
Definition: An official proclamation/ mandatory.
announcement of a judgment/order. Exception:
Judgment/sentence does not become a
judgment/sentence in law until: Conviction for light He may appear through
offense counsel/representative
1) Read and announced to the defendant; or
Promulgation in To prevent subversion of
2) Has become a part of the record of the absentia judicial process and
court. enable enforcement of
Judgment which the rule requires to be civil liability
promulgated is the sentence rendered by the Verdict of acquittal No appeal necessary;
TC, not the judgment of the appellate court judgment is final and
sent to the TC. executory
Unnecessary for the latter because it is
presumed that the accused or his attorney - Note the old rule that
presence of the accused
had already been notified by the appellate
during promulgation of
court. judgment is required only
Where there is no promulgation of judgment, in case of conviction
no right to appeal accrues.
SIN PERJUICO JUDGMENT Judgment If the judgment is for conviction and the failure
without a statement of facts. [Dizon v. Lopez of the accused to appear was without justifiable
(1997)] cause, he shall lose the remedies available in
Merely reading the dispositive portion of the ROC against the judgment and the court
the decision is not sufficient. shall order his arrest.
Judgment must state the facts and the law However, within 15 days from promulgation
on which it is based. of judgment, he can surrender and file a
While SC has expressed approval of the motion for leave of court to avail of these
practice of some judges withholding the remedies. He shall state the reasons for his
dispositive portion from their opinions until absence.
the very last moment of promulgation in If he proves his absence was for a
order to prevent leakage, such refers to the justifiable cause, shall be allowed to avail of
preparation of the decision and not to the remedies within 15 days from notice.
promulgation. There is no more reason to
keep it a secret at the stage of WHO PROMULGATES JUDGMENTS [Rule 120, Sec.
promulgation. 6]
1) If the judge is absent or outside the
MANNER OF PROMULGATION [Rule 120, Sec. 6] province/city Judgment may be promulgated
General rule: Proper clerk of court shall give by the clerk of court.
notice to the accused personally or through his 2) If promulgation is after the judge ceased
bondsman or warden and counsel, requiring holding office: [Jimenez v. Republic (1968)]
him to be present at the promulgation. a) If temporary absence By any incumbent
Exception: Notice to him shall be served at judge of the court in which the decision was
his last known address if he was tried in rendered.
absentia because he jumped bail or escaped b) If permanent absence The incumbent
from prison. judge succeeding him should not
General rule: By reading it in the presence of promulgate the decision with the decision
the accused and any judge of the court in still under the signature of the previous
which it was rendered. judge. The duty of the successor judge is to
Old rule: Presence of the accused is needed disregard the decision altogether and write
only in cases of conviction. out a new one under his own signature,
Presence of the accused is now mandatory; based on the records of the case
otherwise sentence will be reversed, 3) If the accused is confined/detained in another
without disturbing the verdict, and the case province/city It may be promulgated by the
will be remanded with instruction that the executive judge of the RTC having jurisdiction
TC pronounce in accordance with the legal over the place of confinement/detention, upon
requirements. request of the court which rendered the
Absence of counsel is not a reversible error, judgment.
there being no substantial right of the
defendant on the merits which was APPEAL FROM THE JUDGMENT
prejudiced. General rule: The court promulgating the
Exception: judgment shall have authority to accept the
1) If the conviction is for a light offense, notice of appeal and to approve the bail bond
the judgment may be pronounced in pending appeal.
the presence of his Exception: If the decision convicting the
counsel/representative. accused changed the nature of the offense
2) If the accused fails to appear despite from non-bailable to bailable, the
notice, the promulgation shall be made

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application for bail can only be filed and

resolved by the appellate court. HOW ENTRY IS MADE [Rule 36, Sec. 2]
The judgment or final order shall be entered by
MODIFICATION OF JUDGMENT the clerk in the book of entries of judgments.
The date of finality of the judgment or final
WHEN JUDGMENT OF CONVICTION MAY BE order shall be deemed to be the date of its
1) Upon motion of the accused: [Rule 120, Sec. 7]
a) Before it becomes final. FORMALITIES REQUIRED [Rule 36, Sec. 2]
b) Before appeal is perfected. The record shall contain the dispositive part of
2) The court motu propio and without notice to the judgment or final order.
either party, on the basis of the evidence in the It shall be signed by the clerk, with a
records, so long as the judgment has not certificate that such judgment or final order
become final, as it still has the jurisdiction over has become final and executory.
the case.


1) For conviction:
General rule: Judgment of conviction
becomes final: [Rule 120, Sec. 7]
a) After the lapse of the period for
perfecting an appeal.
b) When the sentence has been
partially/totally satisfied or served.
c) When the accused has waived in
writing his right to appeal. [Wagan v.
Tiangco (1976)]
d) When the accused has applied for
Note: Cases where death penalty was
imposed, was an exception.
Judgment of conviction does not become
final after the promulgation and by the
courts issuing a commitment order
2) For acquittal: It becomes final from the date of
its promulgation.
It can no longer be modified.
MFR or appeal can no longer be filed, as it
will place the accused twice in jeopardy.
The courts power to modify its judgment is
limited to a judgment of conviction, and it
cannot include a judgment of acquittal.

General rule: A judgment which has become
final and executory can no longer be amended
or corrected. [Icao v. Apalisok (1989)]
Exception: Only as regards clerical errors.
Even the subsequent discovery of an
erroneous imposition of a penalty will not
justify correction of the judgment after it
has become final.

While it does not vacate the judgment appealed
from, it does prevent such judgment from
becoming final.
Until withdrawn, there is no decision of the TC to
serve/satisfy because the appeal stayed the
decision. [Teodero v. CA (1996)]
The appellate court may act on the appeal and
impose such penalty as may be warranted by the
law and the evidence.

After judgment has become final, it shall be ADVERSE JUDGMENT
entered in accordance with Rule 36. [Rule 120,
Sec. 8]

WHEN ENTRY IS MADE [Rule 36, Sec. 2]

When there is no appeal or MNT/MFR is filed
within the time provided in the ROC.

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1) That errors of law or irregularities prejudicial to
RECONSIDERATION OR the substantial rights of the accused have been
committed during the trial;
NEW TRIAL (MFR/MNT) General rule: Error of the defense counsel
in the conduct of the trial is neither an
DEFINITION error of law nor an irregularity.
New trial and reconsideration are the same Exception: Acquittal would in all
thing in criminal procedure whether it be a probability have followed the
first, second, new or an old trial. New refers introduction of certain testimony which
to time and not to substance. [US v. Dacir was not submitted at the trial under
(1913)] improper or injudicious advice of
NEW TRIAL A proceeding whereby errors of incompetent counsel.
law or irregularities are expunged from the Irregularities must be with such
record, or new evidence is introduced, or both seriousness as to affect prejudicially the
steps are taken. [People v. Tamayo (2002)] substantial rights of the accused.
Purpose: A new invention to temper severity 2) That new and material evidence has been
of a judgment or prevent the failure of justice. discovered which the accused could not with
[Jose v. CA (1997)] reasonable diligence have discovered and
The word trial as used covers not only trial produced at the trial and which if introduced
proper but also includes the rendition of and admitted would probably change the
judgment. [People v. Enriquez] judgment.
New trial Reopening of the case Evidence which could not, by the exercise
Award given after Is had prior to the of due diligence, have been discovered
judgment on the case rendition of judgment but before the trial in the court below.
was already rendered after the parties have
Requisites: That the evidence - [Jose v. CA
submitted the case for
decision (1997)]
a) Was discovered after the trial;
WHEN TO FILE MNT/MFR b) Could not have been discovered and
1) At any time before a judgment of conviction produced at the trial even with the
becomes final; [Rule 121, Sec. 1] exercise of reasonable diligence. [US v.
After sentence has become final, any Pico (1982)]
attempt to alter/amend/modify the same, Burden of proving this is on the
except to correct clerical errors, is accused. [US v. Torrente (1922)]
unwarranted in law. [US v. CFI Manila] c) Is material, not merely
2) Before an appeal is perfected. cumulative/corroborative/impeaching;
WHO MAY INITIATE MNT/MFR [Rule 121, Sec. 1] d) Is of such weight that it would probably
1) On motion of the accused; change the judgment if admitted.
2) By the court motu propio, but with the consent It must be of weighty influence and
of the accused. will affect the result of the trial.
The consent may be given tacitly (e.g. [People v. Alfaro (2003)]
he interposed no objection to the new
trial of the case). THE ONLY GROUND FOR MFR
Errors of law or fact in the judgment, which
GRANTING OF MOTION requires no further proceedings. [Rule 121,
Motion may be filed with the appellate court Sec. 3]
when during the pendency of the appeal new Rationale: To afford the TC the opportunity to
and material evidence have been discovered. correct its own mistakes and to avoid
Grant rests upon the discretion of the court. unnecessary appeals.
Unless there is a clear showing of GAD, the
judgment of the court on the matter shall FORM OF MOTION [Rule 121, Sec. 4]
not be disturbed. [Republic v. Vda. De 1) It must be in writing.
Castelvi (1974)] 2) It shall state the grounds on which it is based.
The correctness/validity/legality of a new If based on newly-discovered evidence the
trial in a criminal case do not depend upon motion must be supported by:
the consent of the parties but upon the a) Affidavits of witnesses by whom such
grant being made conformably to the evidence is expected to be given; or
prescription of the ROC and the applicable b) By duly authenticated copies of
jurisprudence. [Luciano v. Estrella (1970)] documents which are proposed to be
If filed on the basis of minor/trivial introduced in evidence.
conflicts, motion will be denied. 3) Notice of the motion shall be given to the
What would constitute meritorious prosecutor.
circumstances is left to the sound discretion Private prosecutor need not be served with
of the court on a case to case basis. [Jose the motion.
v. CA (1997)] 4) Filing of the motion must be made within 15
days from date of promulgation of judgment,
EFFECT ON PERIOD TO APPEAL the 15-day period being non-extendable.
General rule: The period at the end of which
the judgment in a criminal case becomes final HEARING ON MOTION
is not suspended. The court may hear evidence by affidavits or
Exception: by the filing of a MNT/MFR. otherwise when the motion calls for resolution
of any question of fact. [Rule 121, Sec. 5]

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The constitutional mandate against double
Purpose: merely to determine WON the new
jeopardy prohibits not only a subsequent
trial requested should be granted.
prosecution in a new and independent cause
but extends also to appeal in the same case by
the prosecution after jeopardy had attached.
In all cases:
[Republic v. CA]
1) The original judgment set aside or vacated;
2) A new judgment is rendered accordingly; The prosecution cannot appeal from a
and judgment of acquittal
3) Parties are left in the same situation as if Rationale: A verdict of that nature is
no trial had ever taken place. immediately final and to try on the merits,
Specific effects: even in an appellate court, places the
accused in double jeopardy. [Central Bank
Ground Effect Court may v. CA (1989)]
Errors of law or All proceedings Allow Dismissal of case upon filing of demurrer by the
irregularities and evidence introduction of accused was held to be final even though based
committed affected shall additional on erroneous interpretation of the law. Hence,
during the trial be set aside evidence in the
an appeal therefrom by the prosecution would
and taken anew interest of
justice constitute double jeopardy. [US v. Kilayko
If error or (1916)]
irregularity goes Where the TC has jurisdiction but mistakenly
into the dismisses the complaint/information on the
jurisdiction, ground of lack of it, the order of dismissal is
entire unappealable. [People v. Duran]
proceeding is An appeal by the People will not lie if the
void and must
purpose is to correct the penalty imposed by
be set aside
the trial court or to include in a judgment a
Newly- Evidence Allow penalty erroneously omitted. [People v. Paet
discovered already introduction of (1956)]
evidence adduced shall other such The preclusion against appeal by the State
stand and the evidence in the from judgments or final orders having the
newly- interest of effect of acquittal, applies even though accused
discovered and justice did not raise question of jeopardy. [People v.
such other
Ferrer (1956)]
evidence shall
be taken and
together with Generally, where the defendant would not be
the evidence placed in jeopardy a 2nd time for the same
already in the offense.
record Where the information was quashed prior to
arraignment, the prosecution may appeal the
Remedy against GAD in granting MNT/MFR: order sustaining the MTQ because before a plea
Certiorari or prohibition. is entered, no jeopardy attaches. [People v
Otherwise, prosecution may no longer have Pascual (1957)]
opportunity to question the order if accused Dismissal of case provisionally with the consent
is acquitted after new trial is conducted of the accused is an error on the part of the TC.
(because there will be double jeopardy). Such dismissal is appealable without violating
[Luciano v. Estrella (1970)] right of accused against double jeopardy.
[People v. Quimsing (1964)]
B. ORDINARY APPEAL The People may appeal when it has been
deprived of due process in the lower court.
WHO MAY APPEAL [Rule 122, Sec. 1] Rationale: A decision in a proceeding that
General rule: Any party may appeal from a did not follow due process is a patent
judgment or final order. nullity and cannot be a basis for the claim
Exception: A party cannot appeal when of former jeopardy. [People v. Balisacan
the accused will be placed in double (1966)]
Party includes not only the government APPEAL WITH RESPECT TO CIVIL LIABILITY
or the accused. It also includes the private When such appeal is allowed Where the TC
offended party. [People v. Madali (2001)] found the accused guilty but erroneously failed
Usually, the participation of the private to enter judgment as to the civil liability of the
offended party is a mere surplusage. (e.g. accused, the fiscal may appeal the judgment
when the State will simply seek the for that purpose. [People v. Ursua (1934)]
affirmation of conviction). When such appeal is not allowed
However, where the State takes a contrary If the offense carries no civil liability, or if
position and recommends the acquittal of the offended party has waived his right
the accused, then the private offended thereto or has reserved the right to
party shall be allowed to participate institute a separate civil action, the
separately. aggrieved party cannot appeal from the
judgment of the TC. [People v. Olavides
The People/State cannot appeal when it will put Where the criminal case was dismissed at
the accused in double jeopardy. the instance of or with the consent of the
fiscal, the offended party cannot appeal
from the order of dismissal, since the

100% UP LAW UP BAROPS 2008 Page 47 of 227


dismissal of the criminal action does not regulation or the

affect the right of the offended party to jurisdiction of the inferior
institute or continue the civil action already court
instituted arising from the offense because
c) In criminal cases
such dismissal or extinction of the penal
involving offenses for
action does not carry with it the extinction which the penalty
of the civil one. [People v. Velez] imposed is death or life
If the judgment of conviction was appealed by imprisonment
the accused, the appellate tribunal is
competent to assess damage/indemnity against d) Other offenses, which,
the defendant, although the decision of the TC although not so punished,
made no award of such nature. This is because arose out of the same
an appeal in a criminal case opens the whole occurence or which may
have been committed by
case for review. [Quemel v. CA (1946)]
the accused on the same
The appellate court may increase the penalty, occasion, as that giving
the indemnity/damages awarded by the TC, rise to the more serious
although the offended party did not appeal and offense
only the accused did. [Quemel v. CA (1946)]
The SC CA or Sandiganbayan
General rule: Only the parties to a case may NATURE OF AN APPEAL
appeal a judgment thereon. [Rule 122, Sec. 2] APPEAL A proceeding for review by which
Exception: A person, other than a real the whole case is transferred to a higher court
party to a case, who stands to be adversely for a final determination.
affected by the judgment in a direct or An appeal in a criminal proceeding throws the
significant way. whole case open for review and it becomes the
duty of the appellate court to correct an error
APPEAL WHEN PROMULGATION OF JUDGEMENT as may be found in the appealed judgment,
WAS MADE IN ABSENTIA WON it is made the subject of assignment of
General rule: Where the accused is tried in errors. [People v. Calayca (1999)]
absentia and the decision was also promulgated The right to appeal is neither a natural right
in his absence, the accused should not be nor a part of due process. It is merely a
afforded the right to appeal [People v. statutory privilege, and may be exercised only
Magpalao (1991)] in the manner provided by law. [Bello v.
Exception: When he voluntarily submits to Fernando (1962)]
the jurisdiction of the court or is otherwise Remedy if appeal is denied: Mandamus, but
arrested within 15 days from the notice of only when the party appealing is entitled to it.
the judgment against him. [Trinidad v. Sweeney (1904)]
Rationale: While at large, he cannot seek
relief from the judgment as he is FINAL JUDGEMENT OR ORDER
considered to have waived the same and An appeal may be taken only from a final
he has no standing in court. judgment or order, not from interlocutory
Other instances when appeal will not be orders.
entertained: If the accused, during the FINAL JUDGMENT Judgment which would
pendency of his appeal, escapes from prison or become final if no appeal is taken.
confinement, or jumps bail, or flees to a foreign It does not mean a judgment which has
country, his appeal shall be dismissed and his already become final, otherwise no appeal
right to appeal shall be considered abandoned. is allowed anymore.
[People v. Ramos (1993)] FINAL ORDER One which disposes of the
whole subject matter or terminates a particular
WHERE TO APPEAL [Rule 122, Sec. 2] proceeding/action, leaving nothing to be done
but to enforce by execution what has been
Appeal in determined.
For cases decided by
General rule: An order overruling the motion
The RTC MTC/MeTC/MCTC is interlocutory; hence, not appealable. [Fuster
v. Johnson]
The Sandiganbayan RTC or MTC/MeTC/MCTC Exception: When the motion is based
(if it is government duty- upon LOJ or the ground that the
related - i.e. filed under information fails to allege facts constituting
EO 1, 2, 4 and 14-A) a public offense, it is not interlocutory.
[Lopez v. Alikpala]
The CA RTC (if it involves
questions of fact and of
An order sustaining a MTQ is a final order;
law) hence, immediately appealable.


CA is vested with the power to try cases and
a) If it involves questions conduct hearings, receive evidence, and
of law only perform any and all acts necessary to resolve
factual issues in cases falling within its original
b) If it involves and appellate jurisdiction. [BP 129]
constitutionality or
The CA also has appellate jurisdiction in cases
validity of any
where the RTC imposed penalty of reclusion
perpetua, life imprisonment, or where a lesser

100% UP LAW UP BAROPS 2008 Page 48 of 227


penalty is imposed for offenses committed in death or life imprisonment is

the same occasion or which arose of the same imposed.
occurrence that gave rise to the more serious Appeal by PFRC from the decision or final
offense for which the penalty for death, order of the RTC/CA may be taken by filing
reclusion perpetua, or life imprisonment is the petition within 15 days from notice of
imposed. [BP 129] judgment or of the denial of MFR filed in
due time.
APPEAL VIS--VIS CERTIORARI Copy must be served on the court
ERROR OF JUDGMENT One which the court whose judgment or final order is sought
may commit in the exercise of its jurisdiction. to be reviewed.
Reviewable on appeal (i.e. ordinary appeal If no record of appeal has been filed in the
under Rule 122). CA, the SC clerk of court, upon admission
ERROR OF JURISDICTION LOJ. It renders of the petition, shall demand from the CA
an order of judgment void or voidable. the elevation of the whole record of the
Reviewable on certiorari. case. [Rule 45, Sec. 2]
General rule: When appeal available for errors Provision above governs procedure of
of judgment, certiorari is not allowed. appeal from RTC or Sandiganbayan to
Exception: Cases where the SC allowed the SC.
certiorari despite availability of appeal: Implication: Records on appeal, before
A writ of certiorari was granted against a mandatory requirement for the
the TCs ruling rejecting rebuttal perfection of ordinary cases to the CA,
evidence for the prosecution because are no longer required.
appeal is no longer available when 4) Automatic review.
accused was acquitted. [People v.
Abalos (1969)] SERVICE OF NOTICE OF APPEAL [Rule 122, Sec. 4]
Certiorari was granted when no appeal Modes of service under Rule 13, Sec. 7 and 8:
lies from an interlocutory order. 1) Personal service upon adverse party or his
[Sacdalan v. Bautista (1974)] counsel;
2) By registered mail;
MODES OF REVIEW 3) By substituted service.
1) Ordinary appeal By filing a notice of appeal Court may order publication in a newspaper of
with the court that rendered the judgment and general circulation at least once a week for
serving a copy on the adverse party. period not exceeding 30 days.
NOTICE OF APPEAL Written notice of Mere failure of the accused to serve a copy of
intention to take appeal. notice of appeal is not a defect. What is
When no notice of appeal is given in writing important is that the appellant is able to
or no record that any was given, the cause exercise the right of appeal. [US v. Sotavento
will be stricken from the court calendar (1919) ]
since there was no appeal. [US v. Tenorio] The appellee may waive his right to a notice
A mere verbal notice of an intention to that an appeal has been taken. [Rule 122, Sec.
appeal expressed by the accused, does not 5]
perfect an appeal. [People v. Natividad] The appellate court may entertain an appeal
But when the accused manifests or notwithstanding failure to give such notice if
gives notice of his intention to appeal in the interests of justice so require. [Rule 122,
open court and files a bond for his Sec. 5]
provisional release within 15 days from
the promulgation of the decision WHEN ORDINARY APPEAL SHOULD BE TAKEN
against him, he may be considered as Within 15 days from promulgation of judgment
having perfected his appeal. [People v. or from notice of the final judgment appealed
Agasang] from. [Rule 122, Sec. 6]
2) Petition for review (PFR). General rule: If no appeal is taken within the
Unlike an ordinary appeal, it is not a matter 15 days, judgment or order becomes final. [US
of right. v. Samio (1904)]
Available only when the petition shows Exception: The time for appeal may be
prima facie that the lower court has extended if it is satisfactorily shown that
committed an error of fact or law that will there is justifiable reason for such action.
warrant the reversal/modification of the The extension is an exception granted only
decision or final order sought to be in very meritorious cases (e.g. fraud,
reviewed. accident, mistake or excusable negligence
3) Petition for review on certiorari (PFRC). or similar supervening casualty without
General rule: Only issues of law are fault of the appellant).
reviewable by a PFRC.
Findings of fact being deemed HOW PERIOD IS COUNTED
conceded by the appellant. The 1st day is excluded and the last day is
Exception: SC reviews questions both included. [Admin Code; CC]
of fact and of law in cases decided by Should the last day fall on a Sunday or a
the RTC: [RA 296] holiday, the period continues to run until the
a) Where the penalty imposed is life next day which is neither a Sunday nor a
imprisonment; holiday. [Admin Code]
b) Which involve other offenses The period is not extended by the 20-day
committed on the same occasion or requirement for the TC to elevate the records
arising out of the same occurrence of the case to the SC. [People v. Tirol (1981)]
that gave rise to the more serious
offense for which the penalty of SUSPENSION OF PERIOD OF APPEAL

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Period is suspended by the filing of MNT/MFR. 1) The complete record of the case;
Suspension is until notice of the order 2) The notice of appeal;
overruling the MNT/MFR. [Hiquina v. Veloso] 3) Original and 3 copies of the TSN (4th copy
But the filing of a motion to extend time to of the TSN shall remain in the lower court).
appeal does not suspend the period. [Reyes v. If any material part of the evidence is not
Santa Maria (1972)] transmitted from the RTC to the SC, the case
will be remanded to the court of origin for a
SHORTENING OF PERIOD new trial. [US v. Tan]
The court cannot shorten the period to appeal. It is the duty of the government (and not of
Hence, the court cannot make the decision final the defendant) to cause to be kept and, in
before the end of the period by issuing a case of an appeal by the defendant, to be
commitment order immediately. [Del Rosario v. sent to the appellate court, a complete
Rosero (1983)] record of the proceedings.

When judgment of conviction imposes Sec. 9]
death penalty, the SC automatically
reviews it without need of the accuseds Transmission of record to RTC
intervention. Judgment becomes final only Within 5 days from perfection of the appeal, the clerk
after the SC has passed upon it. of court shall transmit the original record to the
appropriate RTC.
NOTES [Rule 122, Sec. 7]

Notification of parties
When appellant is - The court shall direct Upon receipt of the complete record, TSN and
the stenographic evidence of the case, the RTC clerk of court shall
reporter to notify the parties of such fact.

The accused Transcribe his notes of

the proceeding

The People of the Transcribe such portion of Submission of memoranda/briefs

Philippines his notes of the Within 15 days from receipt of said notice, the parties
proceedings as the court, may submit memoranda/briefs, or may be required by
upon motion, shall specify the RTC to do so.
in writing


After submission of such memoranda/briefs or upon
the expiration of the period to file the same, the RTC
He certifies the correctness of the notes and shall decide the case on the basis of the entire record
the transcript thereof, which shall consist of the of the case and of such memoranda/briefs as may
original and 4 copies. have been filed.
He shall file said original and 4 copies of the
TSN with the clerk without unnecessary delay.
PENALTY [Rule 122, Sec. 10]
Within 30 days from promulgation of the
The records shall be forwarded to the CA for
sentence, the stenographer shall file with the
automatic review and judgment.
clerk the original and 4 copies of the duly
Transmission to be done within 20 days but not
certified TSN.
earlier than 15 days (i.e. within 5 days from
He shall do so WON the accused has
the expiration of the 15 day period):
1) From the promulgation of the judgment; or
General rule: No extension of time for filing of
2) From notice of the denial of MNT/MFR.
said TSN shall be granted.
TSN shall also be forwarded within 10 days
after the filing thereof by the stenographic
1) If extension is by the SC and only upon
justifiable grounds.
Although a judgment of conviction is entered
2) When period for appeal is suspended,
by the TC, such is not final and conclusive until
this period is also extended. If the
it has been reviewed by the SC. This automatic
defendant files a MNT within 15 days,
review is something which neither the court nor
the TC may entertain said motion, and
the accused can evade. It is intended for the
if this motion takes weeks to consider
protection of the accused, ensuring the
up to the rendition of the new decision,
correctness of the decision of the TC sentencing
then the 30 day period given by law
him to death. [US v. Laguna (1910); People v.
must be extended. [People v. Bocar
Bocar (1955)]
Unlike any other direct appeal to the SC where
only questions of law are reviewed, the SC in
automatic review may review the findings of
UPON APPEAL [Rule 122, Sec. 8]
fact of the TC. [People v. Soriano (2002)]
Within 5 days from filing of notice of appeal,
the clerk of the court with whom the notice of
appeal was filed must transmit to the clerk of JURISDICTION OF THE TC PRIOR TO EXPIRATION
the appellate court: OF PERIOD TO APPEAL

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The prohibition of not sending up the records 1) Escapes from confinement;

before the 15 days is up is because within 2) Jumps bail;
those 15 days, the case is still within the 3) Flees to a foreign country.
jurisdiction of the TC. [Director of Prisons v. The appellate court may dismiss the appeal,
Teodoro] motu propio or upon appellees motion.
After the perfection of appeal or after Rationale: It is in contempt of the
expiration of 15 days, however, the appellate authority of the court and of the law, and
court acquires jurisdiction over the case to the the accused places himself in a position to
exclusion of the TC. [Director of Prisons v. speculate on the chances for a reversal,
Teodoro] meanwhile keeping out of the reach of
During this period, the TC can still decrease justice and preparing to render the
(but not increase) the penalty, acquit the judgment nugatory at his option.
accused, or grant a MNT filed by the defendant.
MNT suspends the running of the 15-day WITHDRAWAL OF APPEAL IN CASE OF AUTOMATIC
period. Hence, the transmission of the records REVIEW [People v. Cornelio (1971)]
to the SC for automatic review is necessarily Withdrawal is not allowed in case of automatic
suspended. review.
It would not remove the case from the
[Rule 122, Sec. 11] Even the escape of the accused from detention
General rule: An appeal taken by one or more during the pendency of his appeal does not
of several accused shall not affect those who relieve the court of the burden of reviewing the
did not appeal. case.
As to the appealing party, the execution of
judgment appealed from is stayed upon the APPOINTMENT OF COUNSEL DE OFICIO FOR
perfection of the appeal. ACCUSED ON APPEAL [Rule 122, Sec. 13]
As to the co-accused who did not appeal, Upon the filing of the notice of appeal, it
the judgment of the TC insofar as it relates becomes the duty of the TC clerk of court to:
to him becomes final and the appellate 1) Ascertain from the appellant, if confined in
court has no power to interfere with it. prison, WON he desires the RTC/CA/SC to
[Salvatierra v. CA (1996)] appoint a counsel de oficio to defend him;
Exception: Insofar as the judgment of and
the appellate court is favorable and 2) Transmit with the record (on a form
applicable to those who did not appeal prepared be the clerk of the appellate
or who withdrew his appeal. [People v. court) a certificate of compliance with this
Escano] duty and of the response of the appellant
The appeal of the offended party from the civil to his inquiry.
aspect shall not affect the criminal aspect of Rationale: The constitutional right of the
the judgment or order appealed from. accused to defend by himself and by counsel.


JUDGEMENT [Rule 122, Sec. 12]
1) Before record is forwarded to appellate court:
UNIFORM PROCEDURE [Rule 123, Sec. 1]
Even if appeal was already perfected, the
General rule: The procedure to be observed in
MTC/RTC may allow appellant to withdraw
the MeTC/MTC/MCTC shall be the same as that
his appeal before the record has been
in the RTC.
forwarded by the clerk of court to the
proper appellate court.
1) Where a particular provision applies
The effect of such withdrawal is that the
only to either of said courts;
judgment becomes final.
2) Criminal cases governed by the Revised
2) After record has been forwarded to RTC:
Rules on Summary Procedure.
The RTC may also allow the appellant of
the MTC judgment to withdraw his appeal.
The withdrawal must be by a motion to that
1) Offenses falling under the MTC/MCTCs
effect, filed before rendition of the
Jurisdiction: [Salcedo v. Nobles-Bans (1985)]
judgment in the case on appeal.
Notwithstanding the uniform procedure
The effect of such withdrawal is that the
rule, if the offense falls under the
judgment shall become final and the case
jurisdiction of the MTC/MCTC,
shall be remanded to the MTC for execution
complaint/information may be filed directly
of the judgment.
with said courts or with the City
After the appeal has been heard on the merits
Prosecutors Office.
and submitted to the court for decision, or after
2) Offenses falling under the MeTCs Jurisdiction:
the briefs were presented, the appellant has no
[Salcedo v. Nobles-Bans (1985)]
absolute right to withdraw the appeal. The
In Metro Manila and other chartered cities,
withdrawal is now a matter that rests within
the complaint may be filed only with the
the sound discretion of the court. [People v.
Office of the City Prosecutor
Rapirap (1958)]
If the case is directly filed with the court,
Withdrawal of appeal by counsel de oficio needs
the case should not be dismissed. The
consent of the accused, since the withdrawal of
court should just refer it to the City
an appeal affects his substantive rights.
Prosecutor for the filing of the
corresponding information.
3) Cases governed by the Revised Rules on
[Longao v. Fakat (1969)]
Summary Procedure:
Situations contemplated: If the accused:

100% UP LAW UP BAROPS 2008 Page 51 of 227


a) Violations of traffic laws/rules/regulations; b) Failure to refer to Lupon.

b) Violations of the rental law; 2) Motion for BOP;
c) Violations of municipal/city ordinances; 3) MNT/MFR or motion for re-opening of trial;
d) Violations of BP 22; 4) Petition for relief from judgment;
e) All other criminal cases where the penalty 5) Motion for extension to file;
is imprisonment not exceeding 6 months or 6) Memoranda;
a fine not exceeding P1K or both, 7) Petition for certiorari/mandamus/prohibition
irrespective of other imposable penalties against any interlocutory order;
(accessory or otherwise) or of the civil 8) Motion to declare defendant in default;
liability arising from it. 9) Dilatory motions for postponement;
However, in offenses involving damage 10) Reply;
to property through criminal negligence 11) 3rd-party complaints;
where imposable fine does not exceed 12) Interventions.
P 10K, the Uniform Procedure Rule shall
govern (i.e. it is not governed by ARRAIGNMENT AND TRIAL [Sec. 13]
Revised Rules on Summary Procedure). After consideration of the
Revised Rules on Summary Procedure complaint/information and the affidavits, if the
also does not apply to criminal cases court finds no cause/ground to hold the
where the offense charged is accused for trial, it shall order the dismissal of
necessarily related to another criminal the case; otherwise, the court shall set the
case subject to the ordinary procedure. case for arraignment and trial.
If the accused is in custody for the crime
THE REVISED RULES ON SUMMARY charged, he shall be immediately arraigned. If
he enters a plea of guilty, he shall forthwith be
The filing of the criminal case shall be either by
Before conducting the trial, the court shall call
complaint or by information.
the parties to a preliminary conference for:
However, in Metropolitan Manila and in
1) Stipulation of facts;
chartered cities, commencement shall be
Refusal/failure to stipulate shall not
only by information.
prejudice the accused.
Exception: When the offense cannot
2) Plea bargaining;
be prosecuted de oficio.
No admission by the accused shall be
The complaint/information shall be
used against him unless reduced to
accompanied by the affidavits of the compliant
writing and signed by the accused and
and of his witnesses.
his counsel.
No. of copies = [ No. of accused + 2 copies
3) Other matters to clarify the issues and to
for the courts files]
ensure a speedy disposition of the case.
If the required no. of copies ment is not
complied with within 5 days from date of
TRIAL [Sec. 15]
filing, the case may be dismissed.
The submitted affidavits will be the direct
testimonies of the witnesses/affiants. They
shall be subject to cross, re-direct and re-cross
If the case requires referral to the Lupong
Tagapamayapa under PD 1508 and this is not
If the affiant fails to testify, his affidavit will not
complied with, it shall be dismissed without
be considered as competent evidence for the
prejudice. The case may be revived only after
party presenting his affidavit. However, the
compliance with the requirement.
adverse party may utilize his affidavit for any
Exception: Criminal cases of warrantless
A witness cannot testify unless his affidavit was
previously submitted to the court according to
Sec. 12.
1) If commenced by compliant:
Exception: On rebuttal or surrebuttal.
Based on the compliant/affidavits/evidence,
If a party wishes to present additional
the court may dismiss the case outright for
affidavits/counter-affidavits, he should so
being patently without basis/merit and
manifest (and his purpose) during the
order the release of the accused (if in
preliminary conference.
If the court allows the additional
2) If commenced by information or if not dismissed
affidavits/counter-affidavits, they shall be
according to #1:
submitted to the court and served on the
The court shall order the accused to submit
adverse party within 3 days from the
his counter-affidavit and the affidavits of
termination of the preliminary conference. If it
his witnesses as well as any evidence in his
is the prosecution who submits additional
behalf (with copies served on the
affidavits, the defense may file counter-
complainant/prosecutor) not later than 10
affidavits thereto (copy furnished the
days from receipt of order. The prosecution
prosecution) within 3 days from service.
may file reply affidavits within 10 days
after receipt of the counter-affidavits.
The court shall not order the arrest of the
1) MTD;
Exception: For failure to appear whenever
Exception: On grounds of either:
a) LOJ over subject matter;

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Release of the accused shall be by bail or on Briefs shall printed/encoded/typewritten, in

recognizance. double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
JUDGMENT [Sec. 17] width.
If trial was conducted, the court shall Mimeographed copies are not allowed.
promulgate judgment within 30 days from
termination of trial. CONTENTS OF BRIEF
The briefs in criminal cases shall have the same
APPEAL [Sec. 21] contents as provided in Rule 44, Sec. 13-14.
Judgment may be appealed to RTC per Sec. 22, [Rule 124, Sec. 7]
BP 129.
1) Appellants brief: [Rule 44, Sec. 13]
arguments and page references, and a
tables of: (1) cases alphabetically
PARTIES AND TITLE [Rule 124, Sec. 1]
arranged; and (2) books and statutes cited,
In all criminal cases appealed to the CA:
with references to the pages where they
1) APPELLANT The party appealing;
are cited.
2) APPELLEE The party adverse to the
separately, distinctly and concisely; stated
The title of the case shall remain as it was in
without repetition and numbered
the court of origin (i.e. People v. John Doe).
concise statement of the nature of the
Sec. 2]
action, a summary of the proceedings, the
The counsel de oficio cannot dismiss the appeal appealed court rulings and orders, the
without the consent of his client [US v. nature of the judgment and any other
Lafuente] or admit findings of fact by the TC matters necessary to an understanding of
[People v. Isaac]. the nature of the controversy, with page
references to the record.
BRIEF FOR APPELLANT [Rule 124, Sec. 3]
concise narrative statement of the facts
Appellant shall file 7 copies of his brief with the
admitted by both parties and of those in
clerk of court, accompanied by proof of service
controversy, together with the substance of
of 2 copies on the appellee.
the related proof, in sufficient detail to
It shall be filed within 30 days from receipt by
make it clearly intelligible and with page
the appellant (his counsel) of the CA clerk of
references to the record.
courts notice that the evidence is already
e) ISSUES Clear and concise statement of
attached to the record.
issues of fact/law submitted to the court for
Purpose: To show grounds for reversal of
its judgment.
judgment and to point out the
f) ARGUMENT Appellants arguments on
errors/irregularities in the lower courts
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
BFIEF FOR APPELLEE [Rule 124, Sec. 4]
the report at which the case begins and the
Appellee shall file 7 copies of his brief with the
page of the report on which the citation is
clerk of court, accompanied by proof of service
of 2 copies on the appellant.
g) RELIEF Specification of the
It shall be filed within 30 days from receipt of
order/judgment which the appellant seeks.
the appellants brief.
In cases not brought up by record on
Purpose: To meet/refute the appellants
appeal, the appellants brief shall contain
(as an appendix) a copy of the judgment or
final order appealed from.
h) Attachment: Certified true copy of the
Appellant may (i.e. optional) file a reply brief
decision or final order appealed from. [Rule
traversing matters raised in the appellees brief
124, Sec. 7]
but not covered in the brief of the appellant.
2) Appellees brief: [Rule 44, Sec. 14]
It must be filed within 20 days from receipt of
a) Subject index.
the appellees brief.
b) STATEMENT OF FACTS Statement that
appellee accepts the statement of facts in
the appellants brief; or COUNTER-
124, Sec. 5]
General rule: Extension of time for the filing
insufficiencies/inaccuracies appellee
of briefs is not allowed
believes to exist in the appellants
Exception: for good and sufficient cause
statement of facts, with references to the
It is sought through a motion for extension,
supporting pages of the record. Matters in
which must be filed before the expiration of the
the appellants statement of facts should
time sought to be extended.
not be repeated.
Grant of extension rests on the courts
c) ARGUMENT Appellees arguments on
discretion. [Piedad v. Batuyong (1974) ]
each assignment of error, with page
Court may grant as many extensions as may
references to the record. The authorities
be asked. [Gregorio v. CA (1976) ]
relied upon shall be cited by the page of
the report at which the case begins and the
FORM OF BRIEFS [Rule 124, Sec. 6]

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page of the report on which the citation is The CA shall hear and decide the appeal at the
found. earliest practicable time with due regard to the
parties rights.
DISMISSAL OF APPEAL FOR ABANDONMENT OR The accused need not be present in court
FAILURE TO PROSECUTE [Rule 124, Sec. 8] during the hearing of the appeal.
Grounds: Proceedings on appeal will not be stayed in
1) Appellant fails to file his brief within the a criminal case on account of the absence
prescribed time; of the accused as his presence is not
Exception: Where the appellant is necessary at said hearing. [US v. Lewis]
represented by a counsel de oficio.
If failure to file brief on time is the
ground, appellant must be given notice
APPEAL [Rule 124, Sec. 10]
to give him opportunity to reason out
General rule: No judgment shall be
why his appeal should not be
Exception: When the CA, after an
However, dismissal is proper despite
examination of the record and of the
lack of notice:
parties evidence, is of the opinion that
a) If appellant has filed a MFR or
error was committed and such error
motion to set aside the order
injuriously affected the appellants
dismissing the appeal, in which he
substantial rights.
stated the reason why he failed to
When it involves credibility of witnesses,
file his brief on time and the
appellate courts will not generally disturb
appellate court denied the motion
the TCs findings.
after considering reason. [Baradi v.
Rationale: The TC is in a better
People (1948)]
position to decide the question, having
b) If appeal was dismissed without
seen and heard the witnesses
notice but appellant took no steps
themselves. [People v. Cabiling (1976)]
to have the appeal reinstated. Such
action amounts to abandonment.
SCOPE OF CAS JUDGEMENT [Rule 124, Sec. 11]
[Salvador v. Reyes]
The CA may:
2) If the appellant escapes from
1) Reverse/affirm/modify the judgment;
prison/confinement, jumps bail or flees to a
2) Increase/reduce the penalty imposed by
foreign country during the pendency of the
the TC;
3) Remand the case to the RTC for new trial
Rationale: Escape of appellant during
or retrial;
the pendency of the appeal implies a
4) Dismiss the case.
withdrawal of the appeal. Hence,
When the accused appeals from the sentence
judgment of the TC becomes final. [US
of the TC, he waives the constitutional
v. Ravidas (1905)]
safeguard against double jeopardy and throws
Likewise, when accused flees after the
the whole case open to the review of the
case has been submitted for decision,
appellate court, which is then called upon to
he is deemed to have waived his right
render such judgment as law and justice
to appeal. [People v. Ang Gioc (1941)]
dictate, WON favorable to the accused and
Exception: Appeal will not be
WON made the subject of assignment of errors.
dismissed despite escape:
[Ko Bu Lin v. CA (1982)]
a) In one exceptional case, the
appellant took advantage of a mass
jailbreak (because, according to his
counsel de oficio he was innocent
The CA has power to try cases and conduct
and wanted to elude an unjust
hearings, receive evidence and perform any
punishment) but was recaptured 2
and all acts necessary to resolve factual issues
hours after, the SC said
in cases:
circumstances were not sufficient to
1) Falling within its original jurisdiction;
justify dismissal of the appeal.
2) Involving claims for damages arising from
[People v. Valencia]
provisional remedies;
b) If there was absolutely no evidence
3) Where the court grants a new trial based
against the accused as found by the
only on the ground of newly-discovered
appellate court, he should be
acquitted in order to prevent an
CAs trials and hearings must be continuous
injustice by technicalities. [People
and completed within 3 months, unless
v. Buenaventura (1994)]
extended by the Chief Justice.
c) In case of automatic review.
[People v. Cornelio]
QUORUM IN THE CA [Sec. 11, BP 129]
CA may dismiss the appeal upon appellees
3 CA Justices constitute a quorum for the
motion or motu proprio.
sessions of a division.
The unanimous vote of the 3 Justices of a
division is necessary for the pronouncement of
a judgment or final resolution
Appeals of accused who are under detention Decision is reached through a consultation
are given precedence in their disposition over before the writing of the opinion by a member
other appeals. of the division.
If there is lack of unanimity, the Presiding
Justice shall direct the CA raffle committee to

100% UP LAW UP BAROPS 2008 Page 54 of 227


designate 2 additional Justices to sit Exception: Where the 1st MFR resulted in
temporarily with them. They shall then form a a reversal or substantial modification of the
special division of 5 members. original decision or final resolution.
The concurrence of a majority of that In this case, the party adversely
special division is necessary for the affected by the reversal/modification
pronouncement of a judgment or final may himself file a MFR of the latest
resolution. judgment of the court, because with
Designation of the additional Justices shall respect to him, said motion is a first
be made strictly by raffle and rotation pleading of that nature.
among all other CA Justices.
CERTIFICATION OR APPEAL OF CASES TO THE SC Provisions of Rules 42, 44-46 and 48-56
[Rule 124, Sec. 13] relating to procedure in the CA and the SC in
1) If the CA finds that death penalty should be original and appealed civil cases, shall be
imposed: applied to criminal cases insofar as they are
AUTOMATIC REVIEW CA shall render applicable and not inconsistent with the
judgment but refrain from making an entry provision of this Rule.
of judgment. It shall then certify the case
and elevate its entire record to the SC for E. PROCEDURE IN THE SC
review. The accused does not have to do
UNIFORM PROCEDURE [Rule 125, Sec. 1]
Note: Death penalty has been abolished.
General rule: The procedure in the SC in
2) If the judgment also imposes a lesser penalty
original and in appealed cases shall be the
for offenses committed on the same occasion
same as in the CA.
or which arose from the same occurrence that
Exception: If the Constitution or law
gave rise to the more severe offense for which
provides otherwise.
death is imposed, and the accused appeals:
The appeal shall be automatically included
in the case certified for review in the SC
In a criminal case, an appeal to the SC throws
3) If the CA imposes reclusion perpetua, life
open the whole case for review and it becomes
imprisonment or a lesser penalty:
its duty to correct such errors as may be found
It shall render and enter judgment
in the judgment appealed from, WON they
imposing such penalty.
were assigned as errors. [People v. Olfindo
Appeal here is not automatic. The accused
has to file a notice of appeal with the CA.
It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed. [Macali v. Revilla (1926)]
When the CAs entry of judgment is issued, a
It may also assess and award civil indemnity.
certified true copy of the judgment shall be
[Quemel v. CA (1946)]
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken. [Rule 124, Sec. 17]
1) Automatic review.
This copy of the entry serves as the formal
It is not a matter of right on the part of the
notice to the court from which the appeal was
accused, but a matter of law.
taken of the disposition of the case in the
Hence, the escape of the accused does not
appellate court, so that the judgment may be
relieve the SC of the burden of
executed and/or placed or noted in the proper
automatically reviewing the case. [US v.
Laguna (1910)]
When available:
a) When the RTC judgment upon the
CA [Rule 124, Sec. 14]
accused imposes death penalty. [Rule
Appellant may file MNT on the ground of newly
122, Sec. 10]
discovered evidence material to his defense
b) When the RTC decision is appealed to
any time:
CA and the latter is of the opinion that
After the appeal from the lower court has
the penalty imposed should be death or
been perfected, but
life imprisonment. CA judgment is
Before the CA judgment convicting him
imposed but no entry of judgment is
becomes final.
made; instead, the case is certified and
The motion shall conform to Rule 121, Sec. 4.
the entire record is elevated to the SC
If the CA grants a MNT, it may either: [Rule
for review. [Rule 124, Sec. 13]
124, Sec. 15]
2) Ordinary appeal.
1) Conduct the hearing and receive evidence;
When available:
2) Refer the trial to the court of origin.
a) When the penalty imposed by the RTC
is life imprisonment, decision is
MFR OF CA JUDGMENT [Rule 124, Sec. 16]
appealable directly to the SC by filing a
MFR may be filed within 15 days from notice of
notice of appeal with the RTC. [Rule
the CA judgment or final order, with copies
122, Sec. 3]
served on the adverse party.
b) When an accused was charged with 2
The mittimus shall be stayed during the MFRs
or more offenses committed on the
same occasion or arising out of the
General rule: No party shall be allowed a 2nd
same occurrence, and in one of those 2
MFR of a judgment or final order. [Sec. 11, BP
cases, he was sentenced to life
imprisonment or death penalty, the

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appeal with respect to the others, course, without prejudice to requiring the
though punished with a lesser penalty, appellant to file the necessary petition for
is to the SC. [Rule 122, Sec. 3] review on certiorari which is also a form of
c) When the penalty of reclusion perpetua appeal.
or death is imposed on some of the
defendants and a lesser penalty on the REVIEW OF CA DECISIONS
other co-defendants, on account of The procedure for the review by the SC of CA
their varying degree of participation in decisions on criminal shall be the same as in
the commission of the offense or due to civil cases. [Rule 125, Sec. 2]
the presence of modifying General rule: The SCs appellate jurisdiction
circumstances, in which case the in cases brought to it from the CA is limited to
decision on the non-life convicts is reviewing and revising the errors of law
directly appealable to the SC. [People incurred by the latter.
v. Carino] The CAs findings of fact are final.
In these cases, the SC reviews not only If an appeal in the SC involves questions of
errors of law but also the findings of fact by facts, the SC has no jurisdiction and should
the TC. dismiss appeal. [Guico v. Mayuga (1963)]
3) Petition for review on certiorari. Exception: [Vargas v. CA; Napolis v. CA
When available: (1972)]
a) When constitutionality/validity of any 1) When the conclusion is a finding
treaty, executive agreement, law, founded entirely on
ordinance or executive order or speculations/surmises/conjectures;
regulation is in question. 2) When the inference made is manifestly
When validity of law is questioned mistaken/absurd/impossible;
by an accused convicted under it by 3) When there is GAD;
the TC, the SC cannot review the 4) When the judgment is based on a
evidence or pass upon any other misapprehension of facts;
question of law which may appear 5) When the findings of facts are
on the record, but will only confine conflicting;
itself to the question of the 6) When the CA, in making its findings,
in/validity of that law. [Trinidad v. went beyond the issues of the case and
Sweeney (1904)] the same are contrary to the
b) When the jurisdiction of any inferior admissions of both appellant and
court is in issue. appellee.
c) When only an error or question of law
d) On decisions of the CA and the 125, Sec. 3]
Sandiganbayan. 1) When the SC en banc is equally divided in
As a rule, review here is limited to opinion or the necessary majority cannot be
errors of law. had on WON to acquit the appellant, the case
General rule: Certiorari is used to correct shall again be deliberated upon.
only errors of jurisdiction and not errors of If no decision is reached after re-
judgment of an inferior court. For errors of deliberation, the lower courts judgment of
judgment, ordinary appeal is available. conviction shall be reversed and the
Exception: Cases where certiorari is accused is acquitted.
granted despite existence of the 2) If case is decided by a division of the SC whose
remedy of appeal: members are equally divided, the case shall be
a) Where public welfare and heard and decided by the SC en banc.
advancement of public policy so
b) Where the broader interests of COMPOSITION [Art. 8, Sec. 4, Consti]
justice so require. SC Composition: 1 Chief Justice + 14 Associate
c) Where the orders complained of Justices.
were found to be completely null SC may sit en banc or (in its discretion) in
and void. divisions of 3, 5 or 7 members.
d) Where appeal was not considered No doctrine or principle of law laid down by the
as the appropriate remedy. SC in a decision rendered en banc or in division
may be modified/reversed.
Failure of appellant to specify in his notice of
appeal the court to which the appeal is being
made is not fatal. [RA 296]


In the case of People v. Resuello (1969), the
contention of the adverse party that the
ordinary appeal filed by appellant shall be XV. SEARCH AND SEIZURE OF
dismissed because the proper remedy is
petition for review on certiorari (only questions EVIDENCE OF CRIME
of law were involved) was rejected.
The SC said that in cases similarly
situated, and as long as the steps formally
required for the perfection of an appeal were
taken in due time, appeal may be given due

100% UP LAW UP BAROPS 2008 Page 56 of 227


Definition: It is an order in writing; issued in a) If the place of the commission of the crime
the name of the People of the Philippines; is known, any court within the judicial
signed by a judge; and directed to a peace region where the crime was committed.
offer, commanding him to search for personal b) Any court within the judicial region where
property described in the warrant and bring it the warrant shall be enforced.
before the court. [Rule 126, Sec. 1]
If it is not written: It is void. WHEN TO ISSUE SW
If it is without the judges signature: It is If the judge is satisfied of the existence of facts
fatally defective. upon which the application is based or that
It is a special and peculiar remedy, drastic in there is PC to believe that they exist, he shall
its name, and made necessary because of a issue the SW. [Rule 126, Sec. 6]
public necessity In issuing or not issuing SWs, judges act
according to the evidence presented to them,
CONSTITUTIONAL BASIS and orders of the judge on the matter are not
final and do not constitute res judicata.
The right of the people to be secure in their Denial of SW on ground of insufficiency of
persons/houses/papers/effects against deposition is not a bar to further
unreasonable searches and seizures of proceedings.
whatever nature or for any purpose shall not be Issuance of SW is not res judicata as to the
violated. [Art. 3, Sec. 2, Consti] right to the SW. [Cruz v. Dinglasan (1949)]
No SW or warrant of arrest shall issue except
upon PC to be determined personally by the WHAT MAY BE SEIZED [Rule 126, Sec. 3]
judge after the examination under 1) Personal property subject of the offense.
oath/affirmation of the complaint and the 2) Personal property stolen/embezzled and other
witness he may produce, and particularly proceeds/fruits of the offense.
describing the place to be searched, and the 3) Personal property used or intended to be used
things/persons to be seized. [Art. 3, Sec. 2, as the means of committing an offense.
The privacy of communication and Personal property only. SW does not issue for
correspondence shall be inviolable except upon seizure of immovable properties.
lawful order of the court, or when public Ownership of the property seized is immaterial.
safety/order requires otherwise, as prescribed It is sufficient that the person against whom
by law. [Art. 3, Sec. 3, Consti] SW is directed has control/possession of the
Rationale: property. [Burgos v. Chief of Staff (1984)]
What is sought to be guarded is mans
prerogative to choose who is allowed entry REQUISITES FOR ISSUING SW [Rule 126, Sec. 4]
to his residence. His privacy must not be 1) There is PC in connection with a specific
disturbed by the government except in offense.
cases of overriding social need, and then 2) The PC is determined personally by the judge.
only under the stringent procedural 3) He determines this through examination under
safeguards. [Villanueva v. Querubin oath/affirmation of the complainant and the
(1972)] witness he may produce.
A mans house is his castle. However, he 4) SW particularly describes the place to be
may not use his castle as a citadel for searched and the things to be seized which
aggression against his neighbors, nor can may be anywhere in the Philippines.
he within its walls create such disorders as
to affect their peace. [US v. Vallejo (1908)] Courts have declared invalid SW that did not
Thus, the government has right to search and comply with these requisites. [Lim v. de Leon
seize despite the individuals right to privacy. (1975)]
The constitutional guarantee is not a blanket A courts disregard for the requirements
prohibition against all searches and seizures. It constitutes GAD which may be remedied by
operates only against unreasonable searches certiorari under Rule 65.
and seizures.
The prohibition is directed against the State. It PROBABLE CAUSE
is not applicable to acts committed by private
entities. Definition: Such reasons, supported by facts
and circumstances, as will warrant a cautious
CONSTRUCTION man in the belief that his action, and the
The provisions of the Consti and statutes means taken in prosecuting it, are legally just
relative to searches and seizures must be and proper. [US v. Addison (1908)]
construed liberally in favor of the individual and It is a reasonable ground of suspicion,
strictly against the State. [People v. Sy Juco supported by circumstances sufficiently strong
(1937)] by themselves to warrant a cautious man in the
belief that the person accused is guilty of the
ISSUANCE OF THE SW offense of which he is charged. [Dizon v Hon.
Castro (1985)]
WHERE APPLICATION FOR SW IS FILED [Rule 126, It does not mean absolute certainty. Innocence
Sec. 2] of a party, whether merely proclaimed or real
1) Any court within whose territorial jurisdiction a does not necessarily preclude a finding of PC.
crime was committed. [DOH v. Sy Chi Siong (1989)]
2) For compelling reasons stated in the Existence of PC depends on sound judgment
application: and discretion of the judge [US v. Ocampo
(1910)], a function he cannot delegate to the

100% UP LAW UP BAROPS 2008 Page 57 of 227


applicant or anyone else. [Pasion v. Locsin OFFENSE ALLEGED MUST BE SPECIFIC

(1938)] General rule: The offense alleged must be
specific as to enable the judge to find the
Definite provisions of the allegedly violated
Purpose: To limit the things to be seized to laws must be referred to.
those (and only those) particularly described in No SW shall issue for more than one
the SW, leaving the officers no discretion specific offense. [RPC]
regarding what articles they shall seize, to the A SW issued for an illegal traffic of
end that unreasonable searches and seizures narcotics and contraband is fatally
may not be made and that abuses may not be defective. The latter is a generic term
committed. [Uy Kheytin v. Villareal (1920)] covering all goods exported from or
imported in the country contrary to
DESCRIPTION OF PLACE applicable statutes. Necessarily then, more
Description of place to be searched is than one offense could arise from the
sufficient if the officer with the SW can, with activity designated as illegal traffic of
reasonable efforts, ascertain and identify the narcotics and contraband. [Castro v.
place intended. [People v. Veloso (1925)] Pabalan (1976)]
An apparent typographical error will not Exception: In People v. Marcos (1990),
necessarily invalidate the SW. [Burgos v. Chief the SW was declared valid despite lack of
of Staff (1984)] mention of specific offense because the
TEST OF PARTICULARITY That the application stated that the owner of the
executing officers prior knowledge as to the grocery store against whom warrant was
place intended in the SW is relevant. This directed, had in his possession
would seem especially true where the unadulterated stocks in violation of the
executing officer is the affiant on whose provisions Art. 188 and 199, RPC, which
affidavit the SW had issued, and when he are closely allied articles as the punishable
knows that the judge who issued the SW acts defined in one of them can be
intended the building described in the considered as including or is necessarily
affidavit. And it has also been said that the included in the other.
executing officer may look to the affidavit in
the official court file to resolve an ambiguity in EXAMINATION OF COMPLAINANT [Rule 126,
the SW as to the place to be searched. Sec. 5]
[Burgos v. Chief of Staff (1984)]
Before issuing the warrant, the judge must
DESCRIPTION OF PROPERTY personally examine the complainant and the
General rule: Things to be seized must be witnesses he may produce.
described particularly. General SWs are not The judge shall do so in the form of searching
allowed. questions and answers.
SWs authorizing the seizure of books of The questions and answers must be in writing
accounts and records showing all the and under oath.
business transactions of certain persons, Facts testified on must be personally known to
regardless of whether the transactions the complainant/witnesses. Their sworn
were legal or illegal, are general warrants statements, together with the affidavits
prohibited by law. [Stonehill v. Diokno submitted, shall be attached to the record.
Likewise, a description of things to be EXAMINATION UNDER OATH
seized as subversive documents, OATH Includes any form of attestation by
propaganda materials, FAs, printing which a party signifies that he is bound in
paraphernalia and all other subversive conscience to perform an act faithfully and
materials hardly provided a definite truthfully.
guideline to the executing officers. [Dizon The oath required must refer to the truth of
v. Hon. Castro] facts within the personal knowledge of the
And where the language used is too all- petitioner/witness, because the purpose thereof
embracing as to include all the is to convince the committing magistrate of the
paraphernalia of petitioner in the operation existence of PC. [Alvarez v. CFI (1937)]
of its business, the SW is constitutionally Mere affidavits of the complainant/witnesses
objectionable [Columbia Pictures v. Flores are not sufficient. The law requires depositions.
(1993)] [Prudente v. Judge Dayrit (1989)]
1) But where, by the nature of the goods JUDGE MUST CONDUCT EXAMINATION
to be seized, their description must be SEARCHING QUESTIONS AND ANSWERS
rather general, it is not required that a Such questions as have the tendency to show
technical description be given, for this the commission of a crime and perpetrator
would mean that no SW could issue. thereof. [Luna v. Plaza (1968)]
[People v. Rubio (1932)] The statement as to the time of the alleged
2) The general description of the offense must be clear and definite and must
documents listed in the SW does not not be too remote from the time of the taking
render the SW void if the SW is of an affidavit and the issuance of the SW.
severable, and those items not [Asian Surety v. Herrera (1973)]
particularly described may be cut off The nearer the time at which the observation of
without destroying the whole SW. [Uy the offense is alleged to have been made, the
v. BIR (2001)] more reasonable the conclusion of PC. [Asian
Surety v. Herrera (1973)]

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Testimony of witnesses is not necessary if the What may be raised in the MTQ: Only the
testimony of the complainant is sufficient. issues of existence or non-existence of PC
[Alvarez v. CFI (1937)] at the time of the SWs issuance,
compliance with requisites.
INSTANCES OF INVALID EXAMINATION Matters of defense are to be raised in
The complainants application for SW and the the criminal action. [DOH v. Sy Chi
witness printed-form deposition were Siong (1989)]
subscribed and sworn to before the judge, but 4) File a motion to return seized things.
the latter did not ask either of the two any This is the remedy used if the search was
question, the answer to which could possibly be already conducted and goods were seized
the basis for determining WON there was PC. It as a consequence thereof.
cannot be said that the judge personally Where the motion will be filed follows the
conducted the personal examination required. same rules as #3.
[Bache v. Ruiz (1971)]
In reading of the TSN of the deposition of the WHERE TO FILE MTQ THE SW OR SUPPRESS
applicant and his witnesses taken by the clerk EVIDENCE THEREBY
of court, the judge was not able to observe the [Rule 126, Sec. 14]
deponents demeanor nor to propound initial
and follow-up questions. [Bache v. Ruiz Where to file
Where judge issuing the SW acted solely on the If criminal action has Court where the action has
basis of the affidavits of the complainant and been filed been instituted
his witnesses, which were sworn to before
another judge, without personally asking the If no criminal action has Court that issued SW
witnesses questions. [Doce v. CFI (1968)] been instituted

INSTANCES OF VALID EXAMINATION If no criminal action is Court where the

filed and motion is first subsequent criminal action
The validity of the SW and the affidavits is not
filed with the court that has been instituted
impaired by the fact that they are pre- issued the SW, but it
typewritten by law enforcement agents, as long failed to resolve the
as they are sworn and subscribed to before the motion and a criminal
judge. case is subsequently filed
In Luna v. Plaza (regarding warrants of arrests in another court
but applicable by analogy), the SC said that the
law is complied with where the judge adopts as
his own personal examination the questions WHO MAY AVAIL REMEDIES
asked by the police investigator, as appearing SWs illegality may be contested only by the
in the written sworn statements, which the party whose rights have been impaired
judge read over again to the witnesses, thereby. It cannot be availed by 3rd parties.
whether said answers were his, and whether [Lim v. Ponce de Leon]
said answers were true, to which the witnesses Hence, when a corporations documents were
replied in the affirmative, there being no seized, the corporate officers cannot question
prohibition to the contrary. the legality of the search as their personalities
are separate and distinct from that of the
RIGHTS AND REMEDIES AGAINST corporation. [Stonehill v. Diokno]
1) Employ any means to prevent the search. Illegally seized evidence may not be admitted
Without a SW, the officer cannot insist on in evidence in any proceeding. [Art. 3, Sec. 2,
entering a citizens premises. If he does so, Consti]
he becomes an ordinary intruder.
The person to be searched may resist the DISPOSITION OF ILLEGALLY SEIZED PROPERTY
search and employ any means necessary to General rule: Goods seized by virtue of an
prevent it, without incurring any criminal illegal warrant must be returned [Castro v.
liability. [People v. Chan Fook (1921)] Pabalan]
2) File criminal action against officer. Exception: If possession of the things
A public officer/EE who procures a SW seized is prohibited by law, they shouldnt
without just cause is criminally liable under be returned.
Art. 129, RPC. However, where the accused obtained goods
3) File a MTQ the illegal SW. from another through payment of bouncing
This remedy is employed if search is not checks and thereafter sold said goods to a
yet conducted. buyer in good faith, but said goods were taken
General rule: The motion must be filed from the purchaser with the use of a SW
before the sala of the judge who issued it. although the criminal case for estafa against
Only the court that issued the SW may the accused was still pending, the goods should
order revocation of SW or release of things be returned to the buyer. The buyer is entitled
seized. [Pagkalinawan v. Gomez (1967)] to possession of goods until restitution is
Exception: Where the SW is issued by ordered by the court in the criminal case. [Yu
one court and the criminal action based v. Honrado (1980)]
on the results of the search is
afterwards filed in another court, the WAIVER OF IMMUNITY AGAINST UNREASONABLE
motion may be filed in either court. SEARCHES AND SEIZURE [Pasion v Locsin (1938)]
[People v. CA (1999)] The constitutional immunity against
unreasonable searches and seizure is a

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But in their absence, 2 witnesses of sufficient
personal right that may be waived
age and discretion residing in the same locality
must be present.
Waiver cannot be made just by anyone, except
the person whose right is being invaded or one This requirement is mandatory. Non-
who is expressly authorized to do so in his compliance subjects the public officer to a suit
behalf. under Art. 130, RPC.
Requisites of a valid waiver:
1) It must appear that the right exists; TIME OF MAKING SEARCH [Rule 126, Sec. 9]
2) That the person involved had knowledge, General rule: The SW must direct that it be
(actual or constructive) of the existence of served in the day time.
such right; DAYTIME That portion of the 24 hours
3) That the person had an actual intention to in which a mans person and countenance
relinquish the right. are distinguishable.
Exception: If the affidavit asserts that the
FORM OF SW property is on the person or in the place
ordered to be searched, a direction may be
SW must be substantially in the form inserted that it be served at any time of the
prescribed by the ROC. [Rule 126, Sec. 6] day/night.
SW must be in writing and contain: A SW violates Rule 126, Sec. 9 if the time
1) Name of person against whom it is for making the search is left blank, thus
directed; enabling the officers to conduct the search
2) Offense for which it was issued; in the evening of the appointed search.
3) The place to be searched and the specific [Asian Surety v. Herrera]
things to be seized; Where a search is to be made during the night
4) A directive to law enforcement officers to time, the authority for executing the same at
search and seize; that time should appear in the directive on the
5) And for them to bring in court the things face of the SW. [Asian Surety v. Herrera]
6) Signature of the judge issuing it. SWS EXPIRATION

DIPLOMATIC OFFICERS A SW shall be valid for 10 days from its date.

Thereafter, it shall be void. [Rule 126, Sec. 10]
SW cannot issue against diplomatic officers. General rule: A SW can be used only once;
The law declares as null and void thereafter, it functus oficio. [Uy Kheytin v.
writs/processes issued against ambassadors Villareal]
and ministers. [RA 75] It cannot be used everyday for 10 days; or
A judge acts without jurisdiction and with GAD for a different purpose everyday, and after
if he refuses to order the quashal of a SW the articles for which the SW has been
issued by him in disregard of a foreign visitors issued have been seized, the same SW
diplomatic immunity. [WHO v. Aquino (1972)] cannot be used as authority to make
another search.
Exception: Where the search was not
completed in one day and had to be
continued the following day, the warrant
continues to be good authority for the
SEARCH [Rule 126, Sec. 7]
continuation of the search proceedings,
If refused admittance to the place of directed
there being technically only one continuous
search after giving notice of his purpose and
authority, the officer may break open any
outer/inner door or window of a house or any
part of a house or anything therein.
Sec. 11]
Prior notice is required only where some
persons are found in charge of the building to
be searched. Where house is unoccupied, the How receipt is given
executing officers may force an entrance into
the edifice without notice. If lawful The officer seizing the property under
occupant the SW must give a detailed receipt for
Purpose of breaking door/window:
was the same to the lawful occupant of the
1) To execute the SW. present premises in whose presence the search
2) To liberate himself or any person lawfully and seizure were made
aiding him when unlawfully detained
therein. If he was The officer seizing the property under
This presupposes a situation where the officer not the SW must, in the presence of at least
had a priori served notice of his intention and present 2 witnesses of sufficient age and
authority to conduct the search but was discretion residing in the same locality,
unreasonably refused admittance or, having leave a receipt in the place in which he
found the seized property
been admitted thereto, was unlawfully detained


[Rule 126, Sec. 8]
Search of a house/room/premises shall be
made in the presence of the lawful occupant PROPERTY [Rule 126, Sec. 3]
thereof or any member of his family.

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1) The officer must forthwith deliver the property warrantless search was conducted in Rm
seized to the judge who issued the SW. A true 413. The search was held to be illegal.
inventory thereof duly verified under oath shall In Chimel v. California, the US SC said that
be attached there is no justification for searching
Goods seized remain under the courts through all of the desks drawers or other
custody until institution of the appropriate closed and concealed areas in the room
criminal action with the proper court. where arrest was made. SW was needed.
[Tenorio v. CA] When one is legally arrested for an offense,
2) 10 days after SWs issuance, the issuing judge whatever is found in his possession/control
shall ascertain if the return has been made. may be seized and used in evidence against
a) If no return was made, the judge shall him. [Alvero v Dizon (1946)]
summon the person to whom the SW was Where the arrest was illegal, then search
issued and require him to explain why no and seizure incidental thereto are also
return was made. illegal. [People v. Aruta (1998)]
b) If the return has been made, the judge Where a search is first undertaken, and an
shall ascertain WON rule 126, Sec. 11 has arrest was effected based on evidence
been complied with and shall require that produced by such search, both search and
the property seized be delivered to him. arrest are illegal. [Lui v. Matillano (2004)]
The judge shall see to it that #1 has been
complied with. 2. SEARCH OF MOVING
3) The return on the SW shall be filed and kept by
the custodian of the log book on SWs who shall
enter therein the date of the return, the result,
Search and seizure without warrant of vessel
and other actions of the judge.
and aircrafts for violation of customs laws has
A violation of this section shall constitute
been a traditional exception to the requirement
contempt of court.
of SW. [Roldan v. Hon. Arca (1975)]
Rationale: The vessel can be quickly moved
REMEDY FOR CONFLICTING CLAIMS ON out of the locality before warrant can be
SEIZED PROPERTY [Chua v. CA (1993)] secured.
Nonetheless, in all cases falling under this
1) Where personal property is seized under a SW, category, there must be a showing of a PC of a
and there is reason to believe that the seizure violation of the law. [Caroll v. US (1924)]
will not anymore be followed by the filing of a Where a vehicle is stopped and subjected to an
criminal action, and there are conflicting claims extensive search, the warrantless search is
over the seized property: valid only as long as the officers conducting the
Remedies: search have reasonable or probable cause to
a) Filing of an action for replevin; believe before the search that they will find the
b) Interpleader filed by the government in instrumentality/evidence pertaining to a crime,
the proper court (not necessarily the in the vehicle to be searched. [People v. CFI
same one which issued the SW). (1980)]
2) If there is still a probability that seizure will be
followed by filing criminal action: SEARCHES CONDUCTED IN CHECKPOINTS [People
Remedy: Question the SWs validity in the v Vinecario, 2004]
same court that issued it, not in any other They are valid as long as they are warranted by
branch of the same court. the exigencies of public order and conducted in
a way least intrusive to motorists.
B. WARRANTLESS SEARCH The vehicle is neither searched nor its
occupants subjected to a body search (i.e.
inspection of the vehicle is limited to a visual
General rule: Search of property is
unreasonable unless it has been authorized by
In S. Dakota v. Opperman (1976), a car had
a valid search warrant.
been impounded for multiple parking violations
Exception: Warrantless searches.
and, following standard procedure, the police
inventoried the contents of the car during
1. SEARCH INCIDENTAL TO AN which marijuana was discovered in the glove
ARREST compartment, it was held that the procedure
did not involve an unreasonable search, absent
A person lawfully arrested may be searched for any suggestion that the search was conducted
dangerous weapons or anything which may as a mere pretext for concealing an
have been used or constitute proof in the investigatory police motive.
commission of an offense without a SW. [Rule
Scope of right to search without SW: [Nolasco PLAIN VIEW
v. Hon. Pano (1985)]
Searching the person arrested, in order to
Rationale: Authorities do not consider a mere
find and seize things connected w/ the
observation of what is in plain view, a search.
crime as its fruits or the means by w/c it
Thus, objects falling in the plain view of a
was committed.
police officer who has a right to be in the
Searching the place where the arrest was
position to have that view are not products of a
search, may be seized and may be introduced
In People v. Leangsiri, the accused were
in evidence. [Harris v. US (1968)]
lawfully arrested in Rm 504 of a hotel and a
Requisites: [People v. Valdez (1999)]

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1) A prior valid intrusion based on the valid On the other hand, where there is a nexus
warrantless arrest in which the police are between the crime for which the evidence
legally present in the pursuit of their official is sought and the item that is seized, there
duties. is no abuse of the consent to a search.
2) Evidence was inadvertently discovered by
the police who have a right to be where 6. STOP AND FRISK THEORY
they are.
3) Evidence must be immediately apparent. STOP AND FRISK A limited protective
4) Plain view justified mere seizure of search of outer clothing for weapon. [Malacat
evidence without further search. v. CA (1997)]
Limitations: [People v. Musa (1993)] Where a police officer observes unusual
It may not be used to launch unbridled conduct which leads him reasonably to
searches and indiscriminate seizures. conclude in the light of his experience that
It does not extend to a general exploratory criminal activity may be afoot, and that a
search made solely to find evidence of person with whom he is dealing may be armed
defendants guilt. and presently dangerous, where in the course
The doctrine is usually applied where a of investigating this behavior he identifies
police officer is not searching for evidence himself as a policeman and makes reasonable
against the accused, but nonetheless inquiry, and where nothing in the initial stage
inadvertently comes across an of the encounter serves to dispel his reasonable
incriminating object. fear for his own or others safety, he is entitled
Even if an object is in plain view, before it for the protection of himself and others in the
can be seized without a SW, its area to conduct a carefully limited search of
incriminating nature must first be apparent. outer clothing of such persons in an attempt to
Where police officers are on the premises discover weapons which might be used to
pursuant to a valid consent to a search, an assault him. [Terry v. Ohio]
item falling into their plain view may properly Under this theory, PC is not required to conduct
be seized even if the item is not connected with a stop and frisk but, nevertheless, mere
their purpose in entering. suspicion/hunch will not validate a stop and
4. SEARCH IN CONNECTION A genuine reason must exist, in light of the
WITH ENFORCEMENT OF police officers experience and surrounding
condition, to warrant the belief that the person
has weapons concealed about him.
For the enforcement of customs duties and
tariff laws, the Collector of Customs is
authorized to effect searches and seizure. CIRCUMSTANCES
[General Travel Services v. David (1966)]
The Tariff Code authorizes customs officers to: There was a prevailing general chaos and
Enter, pass through or search any land, disorder because of an ongoing coup, and the
enclosure, warehouse; raid of the office/building was precipitated by
Inspect/search/examine any vessel/aircraft intelligence report that said office was being
and any trunk/package/box/envelope or used as HQ by the RAM. Also, the surveillance
any person on board, or stop and examine team before the raid was fired upon by the
any vehicle/beast/person suspected of people inside. The raiding team had no
holding/conveying any dutiable/prohibited opportunity to apply for warrant as the court
article introduced into the Philippines then was closed. There was urgency and
contrary to law. exigency that warrant was lawfully dispensed
General rule: The Tariff and Customs Code with. [People v. de Gracia]
does not require a warrant for such searches.
Exception: In the search of a dwelling
house, SW is required.


Rationale: Right of privacy may be waived.

When one voluntarily submits to a search or
consents to have it made of his
person/premises, he is precluded from later
complaining thereof. [People v. Kagui
Malasugui (1936)]
When is consented search reasonable: Only if
kept within the bounds of the actual consent.
A persons consent may limit the
extent/scope of a warrantless search in the
same way that the specifications of a warrant XVI. PROVISIONAL REMEDIES
limit the search pursuant thereto.
Officers may not use a persons limited
consented to get inside his home and conduct a
general search.
The US SC said that a search for a stolen TV
Provisional remedies in civil actions, insofar as
set cannot extend to search of individuals
they are applicable, may be availed of in
other papers and documents.

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connection with the civil action deemed

instituted with the criminal action. [Rule 127,
Sec. 1]
If the civil action is suspended on account of
filing of the criminal action: The court with
which the civil case is filed is not thereby
deprived of its authority to issue auxiliary writs
that do not go into the merits of the case.
[Ramcar Inc. v. de Leon]


1) Criminal action carries with it no civil liability;
2) Offended party has reserved the civil claim;
3) Offended party has waived the civil claim;
4) Offended party has already instituted a
separate civil action.


When the civil action is properly instituted in
the criminal action, the offended party may
have the property of the accused attached as
security for the satisfaction of any judgment
that may be recovered from the accused in the
following cases:
1) When the accused is about to abscond from
the Philippines.
2) When criminal action is based on a claim
for money/property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a
public/corporate officer, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other
person in a fiduciary capacity, or for a
willful violation of duty.
3) When the accused has
concealed/removed/disposed of his
property, or is about to do so.
4) When the accused resides outside the


Notice to adverse party and hearing are not

required because they would defeat the
purpose of a provisional remedy. [Mindanao
Savings v. CA (1989)]




Issuance of writ May be done before

acquisition of jurisdiction
over the accused; may be

Enforcement of writ Only after acquisition of


[Gonzalez v. State Properties (2001)]

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Rules 116 - 121

MOTION TO QUASH inform of right to have own counsel furnish with copy of complaint or information
ask whether he desires aid of counsel read in language or dialect known to him
grant reasonable time to do so or assign ask whether he pleads guilty or not guilty
amend counsel de officio
deny grant refuse/ conditional: may be withdrawn
MOTION FOR SUSPENSION enter not guilty before judgment
OF ARRAIGNMENT becomes final

go to trial without
prejudice to present ARRAIGNMENT not guilty:
special defenses Duty of TC w/in 30 days from time PLEA 15 days to prepare for trial
invoked in motion court acquires jurisdiction
over accused
MOTION FOR BILL PRODUCTION/ w/ consent of accused
deny DEMURRER grant denial of right to speedy trial


w/in 30 days from receipt of PRE-TRIAL CONFERENCE
pre-trial order w/in 30 days from time
DEFENSE PROSECUTION w/in 80 days from arraignment ISSUANCE OF court acquires jurisdiction
EVIDENCE EVIDENCE terminate w/in 180 days PRE-TRIAL ORDER over accused

REBUTTAL/ SUR-REBUTTAL grant: terminate w/in 30 days convict:

Prosecution then Defense deny REOPENING new 15-day
Of Trial pd to appeal
Arguments / APPEAL
Memoranda acquit 15 days from


Of Judgment Of Judgment
final & executory Of Judgment w/in 15 days from promulgation grant: commence w/in 30 days

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How: Ordinary appeal

Where: RTC
APPEAL In cases decided by the MTC, MetroTC, MCTC
By notice of appeal filed with the court that rendered the decision and by service of copy
to adverse party

Where: CA How: Petition for Review (Rule 42) How: Ordinary Appeal
In cases decided by the RTC when there are questions of both fact In cases decided by the RTC in its
By notice of appeal filed with the court that
and law appellate jurisdiction
rendered the decision and by service of copy to
adverse party

Where: CA
When the death penalty is imposed by the RTC
How: Automatic Review
No notice required

Where: SC
in criminal cases involving offenses for which the penalty imposed
is reclusion perpetua or life imprisonment
How: Ordinary Appeal
and those other offense, which, although not so punished, arose
out of the same occurence or which may have been committed by By notice of appeal filed with the court that rendered the
the accused on the same occasion, as that giving rise to the more decision and by service of copy to adverse party
serious offense

Where: SC
In cases decided by the RTC when only questions of law are
How: Petition fo r Review on Certiorari

Where: SC
In cases decided by the CA How: Petition fo r Review on Certiorari

Where: SC
How: Automatic Review
When the death penalty is imposed in a lower court and the CA
No notice required

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