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Iigo Notes in Criminal Procedure |1

BACKGROUND ON CRIMINAL emphasis on the governments role. The

PROCEDURE accusatorial system on the other hand, holds a
different view baliktad! The role or participation
of the State is secondary. We give more
We will now go to Criminal Procedure proper. importance on the right or role of the accused or
the private victim.
Q: Define Criminal Procedure.
A: It is the method prescribed by law for the Q: Which of the 2 systems is recognized in
apprehension and prosecution of persons the Philippines?
accused of any criminal offense and for their A: Ours is a mixed system so,
punishment in case of conviction. (Clarks Hybrid/Mestizo [murag is Jet!] because the
Criminal Procedure, p.1) features of both system are found in our law.

HISTORY OF CRIMINAL PROCEDURE IN THE Q: What are some of the inquisitorial aspects
PHILIPPINES of our system of criminal procedure where the
emphasis is on the governments role?
Remember our criminal procedure is A: The following:
patterned after the U.S. law. So lets trace its
origin: 1. The prosecution of criminal cases is
largely controlled by the public
The first law on criminal procedure is General prosecutor. Yong fiscal, siya man
Order No. 58 promulgated on April 23, 1900 by ang may say bahso, under the
Major General Otis of the U.S. Armed Forces. direction or control of the fiscal or
That went on up to 1940 The Old Rules of Court. prosecutor;
After that is the 1964 Revised Rules of Court. 2. Preliminary investigation is required.
Next is the 1985 Rules of Criminal Procedure You cannot go to court and file it.
which was amended 3 years later, and again The fiscal will determine whether
amended on 1991 (on Rule 114). to file it or not. Now can he
conduct a preliminary investigation
And finally the most thorough amendment kung wala ang accused? Well, if
which took effect last December 1, 2000 the you are notified, ayaw mong
2000 Rules on Criminal Procedure. So that is now magbigay ng counter-affidavit,
the present law. I hope you have the copy. Do then tuloy! Bahala ka dyan! Basta
they have already commercial? Wala pa? Ok. Ah! ang importante ang role ng
That is the one prepared by the faculty during the government;
seminar where I talked (ehem!). Since you are 3. In case the accused is sentenced to
using it, meron man akong ibang kopya ba! death, whether the accused likes it
Malakiganyan odirect from the Supreme or not, there will be a review of
Court [idol jud nako si Dean!!!] and I have it book- death sentence because that is
bound. what public interest says.

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

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

The area of authority of said court is found in

Section 2 of the Interim Rules:


Jurisdiction of Courts
Metropolitan Trial Courts,
Before we take up the rules on criminal Municipal Trial Courts, and
procedure, we have to review the law on Municipal Circuit Trail Courts
jurisdiction. Just like in civil cases, we have to shall exercise their jurisdiction
know the jurisdiction of the different courts before in the city, municipality or
we take up the provisions. circuit for which the judge
thereof is appointed or
Q: How do we define jurisdiction with designated. Thus, a judge
reference to criminal cases? appointed to the municipality or
A: Jurisdiction in criminal cases has been circuitized municipalities would
defined as the power and authority of a court to have jurisdiction over the said
take cognizance of an offense and to pronounce place.
the judgement or sentence provided by law after (a) Regional Trial Courts
a trial in the manner prescribed. (Albert, Law on shall exercise its jurisdiction
Criminal Procedure, p. 56) within the area defined by the
Supreme Court as the territory
Q: What are the elements of jurisdiction in over which the particular
criminal cases: branch concerned shall exercise
A: The following: its authority, in accordance with
1. Territorial jurisdiction; Section 18 of B.P. Blg. 129.
2. Jurisdiction over the subject matter;
and There is no problem with the MTCs and
3. Jurisdiction over the person of the MCTCs where the crime is committed there. Pero
accused. yung RTC, it is not really the province because
the province can be split into several areas -
First Element: TERRITORIAL JURISDICTION itong RTC branch na ito, dito ka. So it is the limit
of its authority as defined by the SC pursuant to
In civil cases, the place is never considered the Judiciary Law the place or municipality
part of jurisdiction. It is only a question of venue where the particular RTC branch exercises
that the case should be tried in Manila or Davao jurisdiction. Every RTC branch has its own area
is never considered as jurisdictional. But in of responsibility.
criminal procedure, the place where the trial is to
be heard is not only a question of venue but also Meaning, in one province there are many RTC
a question of jurisdiction. It is called territorial branches which are scattered. A branch in a
jurisdiction. particular place will only exercise jurisdiction over
its designated territory, a small portion, not the
Q: Define Territorial Jurisdiction. whole province. The territory is defined by the SC.
A: Territorial jurisdiction refers to the limits of (Section 18, B.P. Blg. 129)
the geographical boundaries of a place within
which a court has jurisdiction to act judicially and
outside of which its judicial acts are null and void. Second Element: JURISDICTION OVER
(Mendoza vs. B.T. Co., 90 Phil. 804) THE SUBJECT MATTER

Q: How is territorial jurisdiction in criminal Q: How is jurisdiction over the subject matter
cases determined? in criminal cases determined?
A: The territorial jurisdiction of a court in A: It is determined by the allegations of the
criminal cases is determined by the geographical complaint or information in accordance with the
area over which it presides, and the fact that the law in force at the time of the institution of the
crime was committed, or any of its essential action, not at the time of the commission of the
ingredients took place, within said area is an offense. (U.S. vs. Mallari, 24 Phil. 366; People vs.
element of jurisdiction. (U.S. vs. Jueves, 23 Phil. Pegarum, 58 Phil. 715)
Iigo Notes in Criminal Procedure |3

EXAMPLE: At the time the crime is 1. All criminal cases involving offenses for
committed, it was triable by the RTC, but when which the penalty imposed by the trial
the charge was filed in court, it is MTC na court is death, reclusion perpetua or life
because the jurisdiction of the MTC was imprisonment;
increased. 2. Other offenses which, although not so
punished, arose out of the same
Q: Saan ang sundin natin? RTC, which is the occurrence or which may have been
law at the time the crime is committed? Or MTC, committed by the accused on the same
which is the law at the time the case was filed? occasion as that giving rise to the more
A: Dun sa MTC. You follow the latter. This is serious offense, regardless of whether the
not a question of prejudice, this is purely accused are charged as principals,
procedural. We are not talking here of a accomplices, or accessories, or whether
retroactive effect of penal law where the law is they have been tried jointly or separately.
more favorable to the accused no? This is just a
question of jurisdiction, not a question of law. So, EXAMPLE: Hannah is the principal,
it is the law in force at the time of the filing of the accused of murder. Maying is the
action is what determines the jurisdiction of the accomplice and JJ is the accessory. All of
court. them are found guilty. For the principal,
sigurado perpetua ang pinakamababa
Q: To be more precise, how do we know nyan so SC ka!
where the court has or no jurisdiction? How about the accomplice? Reclusion
A: Essentially, it is determined by the penalty Temporal man lang yan ba! And the
provided by the law for the offense as that offense accessory? Prision Mayor. In order not to
is charged in the complaint or information. split the jurisdiction, all of them will be
(People vs. Pecson, 92 Phil. 172; Punzalan vs. appealed to the SC.
People, 99 Phil. 295)
3. Even if the penalty is less than reclusion
Third Element: JURISDICTION OVER THE perpetua, death or life imprisonment,
PERSON OF THE ACCUSED where the issue on appeal is pure
question of law.
Q: How does the court acquire jurisdiction
over the person of the accused? EXAMPLE: Suppose the crime is
A: It is conferred upon the court either by the homicide. The penalty imposed is
voluntary appearance or surrender of the reclusion temporal 20 years or less
accused, or by his arrest to answer for the crime definitely sa Court of Appeals yan.
charged. (Choc vs. Vera, 64 Phil. 1066) However, if the issue on appeal is purely
legal question lang - 100% legal, no
JURISDICTION OF PHILIPPINE COURTS factual issue SC yan. The mode of
appeal is Rule 45 Appeal by Cetiorari.
Let us now go over the jurisdiction of the
different courts in the Philippines. We will start COURT OF APPEALS (CA)
with the Supreme Court, and then down.
Remember that there are two (2) special courts Lets go to the CA. Simple: If a case does not
also authorized to try criminal cases: (1) the fall within the jurisdiction of the SC, then
Family Courts acting through RTCs, and (2) the necessarily it falls within the CAs jurisdiction.
Sandiganbayan. That is, the penalty imposed is less than perpetua
and the appeal is not purely a question of law; the
SUPREME COURT (SC) appeal either involves question of fact or mixed
question of law and fact.
Q: What criminal cases are within the
jurisdiction of the SC? Well, one of them are REGIONAL TRIAL COURT (RTC)
cases affecting ambassadors, public ministers
and consuls. It is very rare. But let us concentrate Sec. 20. Jurisdiction in criminal
on the exclusive appellate jurisdiction of the SC in cases. - Regional Trial Courts
criminal cases. shall exercise exclusive original
A: The following: jurisdiction in all criminal cases
not within the exclusive
jurisdiction of any court,
Iigo Notes in Criminal Procedure |4

tribunal or body, except those irrespective of kind, nature,

now falling under the exclusive value or amount thereof;
and concurrent jurisdiction of Provided, however, That in
the Sandiganbayan which shall offense involving damage to
hereafter be exclusively taken property through criminal
cognizance of by the latter. (BP negligence, they shall have
129) exclusive original jurisdiction
thereof. (as amended by R.A.
The jurisdiction of the RTC in criminal cases is 7691)
provided for in Section 20, BP 129 which is very
broad in general provided it does not belong to There are only two (2) things to remember:
the Sandiganbayan or the Municipal Trial Court
(MTC). So what does not belong to the 1. all violations of city or municipal
Sandiganbayan or the MTC belongs to the RTC. ordinances committed within their
Therefore, the best guide is determine the respective territorial jurisdiction
jurisdiction of the MTC. Let us forget the
Sandiganbayan for the meanwhile. If it does not 2. all offenses punishable with imprisonment
belong to the MTC, it should be to the RTC. of not exceeding six (6) years irrespective
of the amount of fine

MUNICIPAL TRIAL COURT (MTC) When the prescribed penalty is below six (6)
years or kung prision correctional and down, puro
Q: What law governing the jurisdiction of the MTC lahat yan. Everything above six (6) years,
MTC? RTC ang jurisdiction.
A: Section 32, BP 129, as amended by RA
7691. RA 7691 is the law expanding the Q: Suppose if the penalty prescribed is
jurisdiction of the MTC which took effect last April imprisonment, fine or both?
05, 1994. A: Never mind the fine and the both. Just look
at the imprisonment. That is the innovation by the
Sec. 32. Jurisdiction of new rules. The fine is never considered in
Metropolitan Trial Courts, determining the jurisdiction. All you have to do is
Municipal Trial Courts and look at the imprisonment, i.e. above six (6) years
Municipal Circuit Trial courts in RTC; six (6) years and below MTC.
criminal cases. - Except in cases
falling within the exclusive RTC JURISDICTION: Above six (6) years,
original jurisdiction of Regional regardless fine
Trial Courts and of the MTC JURISDICTION: Six (6) years and
Sandiganbayan, the below, regardless of fine
Metropolitan Trial Courts,
Municipal Trial Courts, and Q: Suppose the penalty prescribed by law is
Municipal Circuit Trial Courts 100% fine? There are crimes na walang
shall exercise: imprisonment eh where the prescribed penalty is
1. Exclusive original only fine. What will happen?
jurisdiction over all violations of A: Under the SC Circular 04-94, if the penalty
city or municipal ordinances is imprisonment and fine, or imprisonment or
committed within their fine, never mind the fine and concentrate on the
respective territorial imprisonment. But if the penalty prescribed is
jurisdiction; and purely fine, apply the old law before RA 7691: it
2. Exclusive original depends on the amount prescribed by law. Under
jurisdiction over all offenses the old law, if the maximum fine is P4,000 or less
punishable with imprisonment MTC yan. If the penalty prescribed by law is
of not exceeding six (6) years purely fine and above P4,000 RTC yan.
irrespective of the amount of
fine, and regardless of other Where the prescribed by law is purely fine:
imposable accessory or other
penalties, including the civil MTC P4,000 or less
liability arising from such RTC above P4,000
offenses or predicated thereon,
Iigo Notes in Criminal Procedure |5

However, the exception to the exception is more than 6 months]. It cannot be tried by the old
when the crime is damage to property, like MTC. It should only be tried by the CFI (now,
reckless imprudence, because in the crime of RTC) because under Article 345 of the RPC, in
damage to property through criminal negligence the event that the accused is convicted there be a
the penalty is only fine, wala yang imprisonment judgment for support and the acknowledgment of
under the RPC and the fine is equal to the the child which can only be decreed by the CFI.
damage or not more than three (3) times the So what determines the jurisdiction of the court is
amount of the damage. not the criminal penalty by the civil liability.

EXAMPLE: You bumped a car and you wreck Pero bahaw na yan!! Those pronouncements
it. The car is worth P100,000. Ano ang penalty? are already obsolete. Now, never mind the civil
The minimum fine is P100,000 equal to the liability. So, in simple seduction [below 6 months],
value of the damage and the maximum is the MTC can order for the support and
P300,000 (three times the value of the damage, acknowledgment of the child because that is only
Article 365, RPC). So the fine could range from incidental. What is important is six (6) months
P100,000 to P300,000. lang ang penalty.
Q: Sa RTC na ba yan because it is above
P4,000? CASE: Suppose Sir Jet is convicted of less
A: No! Basta damage to property through serious physical injuries for the 6th time within a
reckless imprudence, automatically it is the MTC period of 10 years only. The penalty for such
regardless of the amount of fine. The P4,000 is crime is only arresto mayor six (6) months
only for crimes other than damage to property maximum. But since Sir Jet is already a habitual
through reckless imprudence. delinquent, may patong na yan where the penalty
can reach as high as 6 months to 14 years and 8
Outline of the jurisdiction of the MTC and RTC months.
over criminal cases: Q: Where are you going to file the case?
A: That is what happened in the case of
RTC: People vs. Custoso where the SC held that the
1. when the prescribed penalty for the case should be filed in the RTC because you
offense is imprisonment exceeding six consider the principal plus the additional penalty.
(6) years irrespective of the amount of But this doctrine is already obsolete. Under the
the imposable fine; present law RA 7691, we do not consider the
2. when the prescribed penalty for the additional penalty, only the principal penalty.
offense is fine only and the Since less serious physical injuries is punishable
imposable fine exceeds P4,000. by arresto mayor only, it should be filed in the
1. all violations of city or municipal
ordinances committed within their Take note the opening clause of Section 32:
respective territorial jurisdiction; Except in cases falling within the exclusive
2. all offenses punishable with original jurisdiction of Regional Trial Courts and of
imprisonment of not exceeding six (6) the Sandiganbayan. In other words, if the crime
years irrespective of the amount of the has a penalty of six (6) years or lower, dapat
imposable fine; talaga MTC. It cannot be tried by the MTC if the
3. when the prescribed penalty is fine law says it is falling within the exclusive original
only and the imposable amount does jurisdiction of the RTC or the Sandiganbayan [if
not exceed P4,000; the law itself ba!].
4. when the offense involves damage to
property through criminal negligence If the law says this case shall be tried with the
irrespective of the amount of the RTC, sundin mo yan and never mind the penalty
imposable fine. because the law specifically provides in what
court you should file it. Even if the penalty is one
Take note, jurisdiction is determined by the (1) month imprisonment, pag-sinabi ng law
principal penalty not by the civil liability, additional RTC, you follow it.
penalty or the subsidiary penalty, which changed
the previous rules under the old jurisprudence. Q: Give instances of this exception. In what
Under the old jurisprudence in the old case of cases will the RTC will try the case even if the
U.S. vs. Bernardo, the SC ruled that the penalty penalty is only six (6) years or less?
for simple seduction is only arresto mayor [not
Iigo Notes in Criminal Procedure |6

A: There are four (4) instances as laid down Courts. Here in Davao, the salas of Judge Breva
by the SC in cases of MORALES VS. CA, 283 and Judge Archangel are designated as Family
SCRA 211 (1997) and COMELEC vs. NHOYNAY Courts. Temporary set-up lang yan. They are still
, 292 SCRA 254 (1998): RTC but acting as Family Courts.

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

pero if you look at the penalty for libel,
hindi man makaabot ng six (6) years ba! The most confusing is the jurisdiction of the
Article 360 prevails. Sandiganbayan. Everyone is always confused
with this Sandiganbayan. It is the most
2. The Decree on Intellectual Property. controversial.
Criminal cases for the violation of the
Decree on Intellectual Property mga How do you know that the case is to be tried
trademarks yan. by the Sandiganbayan or by the regular courts? It
does not mean naman that all crimes committed
3. The Dangerous Drugs Act. Basta by a public officer must be with the
Dangerous Drugs, automatic RTC yan Sandiganbayan. It could be with the
even if the penalty is prision correcional Sandiganbayan or it could be with the RTC or
lang. MTC. If you know the jurisdiction of the RTC or
MTC, there is no problem. Above six (6) years
4. Violation of the Omnibus Election Code RTC; below six (6) years MTC.
Criminal cases arising from the violations
of the Omnibus Election Code is with the But the problem is whether it is with the
RTC even if the penalty is below six (6) Sandiganbayan or the regular courts, because for
years and one (1) day (Comelec vs. the Sandiganbayan, doon, regardless of the
Nhoynay) penalty na naman. Even if the penalty is above
six (6) years or six (6) years and below, if it is
triable before the Sandiganbayan, you go there.
FAMILY COURTS Forget the penalty. That is where there is some
confusion. Maraming naguguluhan!
Q: What criminal cases are falling within the
original jurisdiction of the Family Courts under RA Q: What is the guideline in determining the
8369 An Act Establishing Family Courts? jurisdiction of the Sandiganbayan?
A: The following under Section 5, RA 8369: A: The latest governing law is RA 8249
approved on February 05, 1997. This is what it
1. Criminal cases where one or more of the requires:
accused is below 18 years of age but not
less than nine (9) years of age, or one or 1. What kind of position in the
more of the victims is a minor at the time government does he hold or occupy?
of the commission of the offense. 2. What criminal cases was committed by
So for example: 10 years old na
bata, sinuntok mo slight physical WHAT KIND OF POSITION IN THE
injuries sa Family Courts yan. Hindi GOVERNMENT DOES HE HOLD OR OCCUPY?
yan pwede sa MTC because
regardless of the penalty basta below Sino ba itong taong ito? if he is a
18 years old siya, Family Courts yan governor,
whether he is the accused or the vice-governor,
offended party. member of the sanggunian,
provincial treasure, assessor, engineers and
2. Criminal cases against minors under the other provincial department head,
Dangerous Drugs Act; and city mayor,
3. Violations of RA 7610 the famous child vice mayor,
Abuse Law as amended by RA 7658. members of the sanggunian panglungsod,
city treasurer, assessor, engineer, other city
But since the Family Courts have not yet been department heads,
constituted, the temporary measure is some RTC official of the diplomatic service occupying the
branches were designated as acting as Family position of consul and higher,
Iigo Notes in Criminal Procedure |7

Philippine army and air force, PEOPLE vs. MONTEJO

colonels and naval captains and all officers of 108 Phil. 652
higher rank,
officers of the PNP while occupying the FACTS: This is a case for murder
position of provincial directors and those holding filed against the former Mayor Leroy
the rank of Senior Superintendent or higher, Brown of Basilan City together with
city and provincial prosecutors and their some Basilan policeman. Brown
assistant, and ordered his men to arrest the suspect
officials and prosecutors of the Office of the and he was interrogated. It is in the
Ombudsman and course of the investigation or
special prosecutor, presidents, directors or interrogation that they committed the
trustees or managers of GOCCs, crime of murder.
state universities or educational institutions or
foundations; ISSUE: Was the crime of murder
members of Congress; members of the committed in relation to his office?
Constitutional Commission without prejudice to
the provisions of the Constitution; [ito ang HELD: Yes. In other words, if they
pinakamaganda:] all other national and local were not public officers they would not
officials classified as Grade 27 and higher. have succeeded in committing the
crime. Although public office is not an
Those specified positions or even if you are element of the crime of murder in
just an ordinary employee but you are Grade 27 abstract, as committed by the main
or higher coupled with Anti-Graft crime or crime respondents herein, according to the
committed in relation to your office amended information, the offense
Sandiganbayan yan, forget the penalty. therein charged is intimately
connected with their respective offices
If he is below Grade 27 and the crime is anti- and was perpetrated while they were
graft or a crime committed in relation to his office, in the performance, though improper
then it is not Sandiganbayan. It is either RTC or or irregular, of their official functions.
MTC. Tingnan mo lang ang Grade. That is the Indeed, they had no personal motive
cue. Madali man lang ba: you just correlate the to commit the crime and they would
nature of the crime and the nature of the position. not have committed it had they not
held their aforesaid offices. The co-
defendants of respondent Leroy S.
WHAT CRIMINAL CASE WAS COMMITTED Brown, obeyed his instructions
BY HIM? because he was their superior officer,
as Mayor of Basilan City.
When it comes to criminal cases, dalawa (2)
lang yan eh: Anti-Graft cases or violation of RA
1379 [Forfeiture of an illegally acquired property]. Of course, normally when you say in relation
But more or less Anti-Graft would be a better to his office mga falsification or malversaton
example since anyway majority of the cases falls yan, talagang klaro. That is the normal meaning.
there. That is why in the 1995 case of CUNANAN VS.
ARCEO, 242 SCRA, the SC held that an offense
Q: How about those in the RPC? may be considered as committed in relation to the
A: Find out whether the crime was committed accused's office if the offense cannot exist without
by the public officer in relation to his office. Yan the office such that the office is a constituent
muna ang babantayan mo. element of the crime. Let us try to compare this in
the case of
If it is outside of those two [anti-graft or not
anti-graft but the crime is committed in relation to SANCHEZ vs. DEMETRIOU
his office], wala na, forget the Sandiganbayan. 207 SCRA 627

What do you mean by crime committed in FACTS: Mayor Sanchez of

relation to the office of the person accused? In Calauan was charged with rape and
the case of homicide for the deaths of Aileen
Sarmenta and Allan Gomez. They
were charged before the RTC.
Iigo Notes in Criminal Procedure |8

Sanchez questioned the jurisdiction of regular courts and not the

the RTC that since he is an incumbent Sandiganbayan.
mayor at the time of the alleged
commission of the crime, his case
should be tried before the LACSON vs. EXECUTIVE
Sandiganbayan. SECRETARY
301 SCRA 298 (1999)
ISSUE: Whether or not the RTC
has jurisdiction over the case. HELD: It is not enough to say that
the crime committed is in relation to
HELD: Yes. The case should be his office. You must make specific
tried by the RTC and not allegations to show really the
Sandiganbayan. The case of Sanchez connection. Otherwise, it will not be
was not considered in relation to their tried by the Sandiganbayan but by the
office. regular courts.
There is no direct relation While the information states that
between the commission of the crime the above-name principal accused
of rape with homicide and Sanchez committed the crime of murder in
office as municipal mayor because relation to their public office there is,
public office is not an essential however, no specific allegation of facts
element of the crime charged. The that the shooting of the victim by the
offense can stand independently of the said principal accused was intimately
office. Moreover, it is not even alleged related to the discharge of their official
in the information that the commission duties as police officers. Likewise, the
of the crime charged was intimately amended information does not indicate
connected with the performance of that the accused arrested and
Sanchez official functions to make it investigated the innocent victim and
fall under the exception laid down in killed the latter while in their custody.
People vs. Montejo. Dapat: nahulinag-imbestigatapos,
In that case of People vs. pinatay yun, ma-consider pa! Pero
Montejo, a city mayor and several pag-sinabi mo na they killed him in
detectives were charged with murder relation to their office, without further
for the death of a suspect as a result explanation wala! It becomes merely
of a third degree investigation held at a conclusion lang ba.
a police substation. The Supreme The mere allegation in the
Court held that even if their position information that the offense was
was not an essential ingredient of the committed by the accused public
offense, there was nevertheless an officer in relation to his office is not
intimate connection between the office sufficient the phrase is merely a
and the offense, as alleged in the conclusion of law, not a factual
information, that brought it within the averment that would show the close
definition of an offense committed in intimacy between the offense charged
relation to the public office. Indeed, and the discharge of the accuseds
they had no personal motive to commit official duties.
the crime and they would not have In the case of People vs. Montejo,
committed it had they not held their it is noteworthy that the phrase
aforesaid offices. committed in connection to his public
We have read the informations in office does not also appear in the
the case at bar and find no allegation information, which only signifies that
therein that the crime of rape with the said phrase is not what determine
homicide imputed to Sanchez was the jurisdiction of Sandiganbayan.
connected with the discharge of his What is controlling is the specific
functions as municipal mayor or that factual allegations in the information
there is an intimate connection that would indicate the close intimacy
between the offense and his office. It between the discharge of the
follows that the said crime, being an accuseds official duties and the
ordinary offense, is triable by the commission of the offense charged, in
order to qualify the crime as having
Iigo Notes in Criminal Procedure |9

been committed in relation to his investigation should be conducted by

public office. the Comelec under the election code.
And of course the prosecution
said: No! Under the law, when the
Q: The offender is a public officer and in crime is committed by a public officer
committing the crime, he took advantage of his in relation to his office, it should be the
position. Ano yan? Is that a sufficient allegation Sandiganbayan, not the regular
that the crime is committed in relation to the courts. Pero sabi ng accused: Under
office? the election code, it should be the
A: NO! It does not carry the same meaning. RTC! Ngayon, sino ngayon mag-
When you say that the public officer took prevail dyan?
advantage of his position, that is only an
allegation of an aggravating circumstance under HELD: The election code prevails
Article 14, RPC. (People vs. Magallanes, 249 because there is a specific provision
SCRA 212) which is: crimes under the election
code. Whereas the provisions of the
Now, there are instances where there could Sandiganbayan is broader: crimes
also be a conflict between the Sandiganbayan committed by public officers in relation
jurisdiction and that of the regular courts. This is to their duty. That applies to public
were we follow the general rules on statutory officers in general. So the specific
construction that special law prevails over a provision prevails over the general
general law; a specific provision prevails over a provision.
general provision.
Another interesting point about the
Such principle is applied in the case of De Sandiganbayan is that the Sandiganbayan law
Jesus vs. People (1983), reiterated in the case of says that where a private individual commits a
Corpuz vs. Tanodbayan (1987). These cases crime in conspiracy with a public officer, all of
were decided under the 1973 Constitution. But them should be tried in the Sandiganbayan. So
actually, the doctrine still applies now. yung isa, nasabit no? Nasabit yung private
individual. He is not even in the government bakit
CORPUZ vs. TANODBAYAN pati siya i-try sa Sandiganbayan? Because may
April 15, 1987 conspiracy. There should be a joint trial.

NOTE: This Corpuz case was So you cannot say that the public officer
asked in the Bar, not in remedial law should be tried in the Sandiganbayan and the
but in political law because it has private individual should be tried in the RTC. Di
something to do with the COMELEC. pwede yan. You cannot split the jurisdiction.
FACTS: The accused here is a
Comelec registrar who allowed the Q: What is the reason why the private
registration of voters outside of the individual should be tried together with the public
registration day bawal man yan ba. officers in the Sandiganbayan?
So there was a violation of the Election A: The SC explained in the following manner:
Code. He committed a crime in Private persons may be charged together with
relation to his office. For that, he was public officers to avoid repeated and unnecessary
charged before the Sandiganbayan presentation of witnesses and exhibits against
under the 1973 Constitution. Now, he conspirators in different venues, especially if the
challenged the jurisdiction of the issues involved are the same. (Balmadrid vs.
Sandiganbayan to try the case and Sandiganbayan, March 22, 1991)
also the jurisdiction of the former
Tanodbayan which is now the Lets go to some interesting cases on the
Ombudsman. jurisdiction of the Sandiganbayan over private
Under the Election Code, individuals:
violations of election code committed
by public officers in relation to their
office are supposed to be tried by the BONDOC vs. SANDIGANBAYAN
RTC. It is a direct provision in the code November 9, 1990
RTC eh! And the preliminary
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FACTS: This case involves conduct it. The evidence of the State
quieting operations (manuevers sa or of the accused does not become
mga tseke) between Central Bank (a weaker or stronger whether presented
government institution, now Bangko at a joint or separate trial; the rights of
Sentral ng Pilipinas) employees the accused are not enhanced or
allegedly in connivance with Carlito diluted by the character of a trial as
Bondoc, an assistant manager of a joint or separate; the procedure
private bank. Now, two (2) CB prescribed in either situation is
employees were charged with several essentially the same.
counts of estafa through falsification of
public documents because of their So joint trial is possible kung pwede pa. Eh
manipulations of the checks. I think kung wala na? Eh di maiwan ka na lang dyan!
what they did maybe something similar Now, sabihin mo: No! No! the the law says joint
to what Estrada did no? Of course trial! I should not be tried alone. The SC in the
they were charged with the case of Bondoc said: Teka muna, do you have an
Sandiganbayan and the cases were advantage in joint trial? Or when tried alone? Or
assigned in the Second Division of the you are tried together with another person? Does
Sandiganbayan. joint trial make your job easier or harder? Makes
Subsequently after further conviction easier? Wala man bah! Pareho man
investigation, another information was lang yan!
filed against Bondoc as principal by
indispensable cooperation and he was So meaning, you cannot insist on a joint trial if
also in conspiracy, so f-in-ile sa that is no longer feasible. But as far as the law is
Sandiganbayan. His case was raffled concerned, since you committed the crime in
to the Third Division. When the Third conspiracy with these public officers, you remain
Division learned that this is related to in the Sandiganbayan. So in that case (Bondoc),
the case against the two (2) CB mag-isa lang siya and his trial continued in the
employees in the Second Division, Sandiganbayan.
pinasa sa 2nd Division for
consolidation. However, tapos na pala
ang trial dun (2nd Division). So the AZARCON vs. SANDIGANBAYAN
2nd Division returned the case of 268 SCRA 747 (February 26, 1997)
Bondoc to the 3rd Division.
So naiwan na si Bondoc. Now he FACTS: I think this case happened
questions the jurisdiction of the in Bislig. Azarcon here leased a truck
Sandiganbyan: How could the of somebody for logging operations.
Sandiganbayan try me alone when in The owner of the truck was a
fact I should be tried jointly with the 2 delinquent taxpayer pala. So the
CB employees. Eh tapos na sila! So Bureau of Internal Revenue (BIR)
my case should be tried in the RTC. issued this warrant of distraint. The
BIR looked for the truck which is quite
HELD: The law requires that the an item which worthwhile: This truck
private individuals accused before the is hereby considered as under the
Sandiganbayan should be tried possession of the BIR. Now since you
together jointly with the public officer. (Azarcon) are the one leasing, okey
That is really true unless the attendant lang, ituloy mo but you are now the
circumstances have made impossible custodian. You are now holding it in
or impracticable such a joint trial, in behalf of the BIR.
which event the trial of said private After the lease, he returned the
persons may proceed separately from truck to the lessor (taxpayer).
the public officers or employees whose Obviously, nawala nga ang truck. So
own trials have been concluded. hinabol na si Azarcon ng BIR: Bat mo
Besides, there is nothing so sinauli? That is under distraint already
sacred or important about a joint trial and that is malversation! Under the
as to justify a radical deviation from RPC, the crime of malversation may
ordinary, orderly court processes in be committed by a public officer, by a
order to have it, or as to affect the very private individual who is entrusted with
jurisdiction of the Court required to the custody of a property which has
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 11

been levied by the government (Article public officer by reason of such

222, RPC) requirement. The BIR's power
So, f-in-ile-an sya ng kaso sa authorizing a private individual to act
Sandiganbayan malversation eh! He as a depositary cannot be stretched to
now questions the jurisdiction of the include the power to appoint him as a
Sandiganbayan: I am not a public public officer. The prosecution argues
officer. If you want to sue me, you sue that "Article 222 of the Revised Penal
me in the regular courts, not here in Code . . . defines the individuals
the Sandiganbayan! covered by the term 'officers' under
Article 217 . . ." of the same Code.
ISSUE: Does the Sandiganbayan And accordingly, since Azarcon
have the jurisdiction over a private became a "depository of the truck
individual who is charged with seized by the BIR" he also became a
malversation of public funds or public officer who can be prosecuted
property as a principal after the said under Article 217 . . .
individual has been designated by the We are not persuaded. The
BIR as custodian of a restrained language of the foregoing provision is
property? Did such accused become a clear. A private individual who has in
public officer and therefore subject to his charge any of the public funds or
the Sandiganbayan jurisdiction as a property enumerated therein and
consequence of such designation? commits any of the acts defined in any
of the provisions of Chapter Four, Title
HELD: No. The Sandiganbayan Seven of the RPC, should likewise be
does not have the jurisdiction over penalized with the same penalty
him. The law equivocally specifies: meted to erring public officers.
the only instances when the Nowhere in this provision is it
Sandiganbayan will have jurisdiction expressed or implied that a private
over a private individual, i.e. when the individual falling under said Article 222
complaint charges the private is to be deemed a public officer.
individual either as a co-principal,
accomplice or accessory of a public
officer or employee who has been What it says is, you can be charged for
charged with a crime within its malversation. Thats all. But he is still a private
jurisdiction. individual and therefore he cannot be tried alone
The Information does not charge in the Sandiganbayan.
petitioner Azarcon of being a co-
principal, accomplice or accessory to a Q: Under the present law, anti-graft or crimes
public officer committing an offense committed by public officers below Grade 27,
under the Sandiganbayan's RTC man yan ba! Now, suppose you are
jurisdiction. Thus, unless petitioner be convicted by the RTC, where will you appeal?
proven a public officer, the A: Sandiganbayan. It becomes the appellate
Sandiganbayan will have no court.
jurisdiction over the crime charged.
Granting arguendo that the Q: Eh halimbawa, MTC? The case is tried by
petitioner, in signing the receipt for the the MTC because the penalty is up to 6 years
truck constructively distrained by the only. Convicted ka, where will you appeal?
BIR, commenced to take part in an A: RTC, in accordance with the judiciary law.
activity constituting public functions, he
obviously may not be deemed Q: From the RTC, convicted pa rin! Where will
authorized by popular election. The you appeal?
next logical query is whether A: Petition for Review before the
petitioner's designation by the BIR as Sandiganbayan. Do not go to CA. The
a custodian of distrained property Sandiganbayan takes the place of the CA.
qualifies as appointment by direct
provision of law, or by competent And take note, Sandiganbayan is now given
authority. We answer in the negative. the exclusive original jurisdiction over petition for
However, we find no provision in issuance of writ of mandamus, prohibition,
the NIRC constituting such person a certiorari, habeas corpus, injunction and other
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 12

auxiliary writs and processes in aid of its Q: Is there a difference between

appellate jurisdiction. Ayan! in aid yan ang commencement of criminal action and institution
importante dyan. of criminal action?
A: Yes. When you say commencement,
generally it is already in the court once it is filed in
court. But institution is earlier. When you file a
complaint with the fiscals office, it is already an
Rule 110
Q: Is preliminary investigation required in all
PROSECUTION OF criminal cases? Because there are some criminal
cases which do not require preliminary
OFFENSES investigation.
A: Generally, all RTC cases require
Q: How are criminal cases or actions preliminary investigation. But right now under the
instituted? new rules, some cases triable by the MTC may
A: Section 1, Rule 110. also require preliminary investigation.

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

of criminal actions. kailangan may preliminary investigation yan.
Criminal actions shall be Under Section 1, from the moment you file a
instituted as follows: complaint with the proper officer for the purpose
(a) For offenses where of conducting a preliminary investigation, it is
a preliminary already institution.
investigation is required
pursuant to section 1 of Q: Who are these officers referred to?
Rule 112, by filing the A: They are mentioned in Section 2, Rule 112:
complaint with the proper
officer for the purpose of SEC. 2. Officers
conducting the requisite authorized to conduct
preliminary investigation. preliminary
(b) For all other investigations.
offenses, by filing the The following may
complaint or information conduct preliminary
directly with the investigations:
Municipal Trial Courts and (a) Provincial or City
Municipal Circuit Trial Prosecutors and their
Courts, or the complaint assistants;
with the office of the (b) Judges of the
prosecutor. In Manila and Municipal Trial Courts and
other chartered cities, Municipal Circuit Trial
the complaints shall be Courts;
filed with the office of (c) National and
the prosecutor unless Regional State
otherwise provided in Prosecutors; and
their charters. (d) Other officers as
The institution of the may be authorized by law.
criminal action shall Their authority to
interrupt the running of conduct preliminary
the period of prescription investigations shall
of the offense charged include all crimes
unless otherwise provided cognizable by the proper
in special laws. (1a) court in their respective
territorial jurisdictions.
The language has been changed no? If you (2a)
try to compare it with the old Rules, merong major
changes, meron man ding pareho. The language Q: How about those other offenses which DO
is now simplier. NOT require preliminary investigation?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 13

A: Under the new rules, yung below 4 years is filed in the MTC for preliminary investigation.
and 2 months ang penalty they are triable by The issue is: Is the running of the prescriptive
the MTC. (If the penalty is 4 years, 2 months period interrupted? SC: Yes, abandoning the
and 1 day, it requires preliminary investigation.) case of Coquia and del Rosario. Why? Because
the Penal Code says, the filing of the complaint
Q: How do you institute them? Like slight interrupt the running of the prescriptive period.
physical injuries Article 91 of the RPC does not distinguish
A: You have two (2) options: whether the filing is for trial or merely for
1. File a complaint with the prosecutors preliminary investigation. However the SC said
office in the city or provincial who will here, the complaint is filed in court for preliminary
now file the case in court; or investigation. If it is filed in the fiscals office also
2. Kung gusto mo, direct filing. You can for preliminary investigation, Hindi [does not
file the complaint directly to the MTC. interrupt]!! Court not Fiscal. That is the original
Like sa munisipyo, police man ang ruling.
mag-file ba.
However in 1983 in the case of Francisco vs.
However in Davao City we do not see that CA, the SC made it total na: the filing of the
because under the rules, in Metro Manila and complaint whether in the MTC or the fiscals office
other chartered cities, the complaint shall always for preliminary investigation is sufficient to
be filed with the office of the prosecutor unless interrupt the running of the prescriptive period.
the charter of the city provides otherwise. However, in 1985 when the rules were revised,
the SC rejected the ruling in the Francisco case:
So again, the complaint can be filed either in the filing of the complaint in the fiscals office
the MTC in the province or office of the fiscal does not interrupt the running of the prescriptive
merely for preliminary investigation. Unlike in period. But in 1988, in-amend na naman ang
chartered cities na puro fiscals lang ang rules: the filing of the complaint in the fiscals
authorized to conduct preliminary investigation. office is sufficient to interrupt the running of the
For example: Murder, the police can file a prescriptive period.
complaint for murder before the MTC of Sta.
Cruz, Davao del Sur. That is not for trial but only And here comes the 1992 case of Zaldivia vs.
for preliminary investigation because the MTC of Reyes Sr. (211 SCRA 277) which was a criminal
Sta. Cruz has no power to try a murder case. case covered by the Summary Rules.

The institution of the ZALDIVIA vs. REYES SR.

criminal action shall 211 SCRA 277
interrupt the running of
the period of prescription FACTS: It was a violation of a
of the offense charged municipal ordinance. Arresto Menor
unless otherwise provided lang yan e. F-in-ile sa fiscals office.
in special laws. (last The fiscal is relaxed because
paragraph, Section 1, Rule according to him: the filing of the case
110) with the fiscals office is sufficient to
interrupt the running of the prescriptive
QUESTION: Does the filing of the complaint period. So, relax siya he took his
with the prosecutors office interrupt the running time.
of the prescriptive period of the crime? F-in-ile niya (fiscal) sa court after 3
months. Pag-file niya, motion to
In the old case of People vs. del Rosario quash: Prescribed! Fiscal: Hindee!
(1964), SC: No. When a complaint is filed in the When the case is filed with the fiscals
municipal court only for the purpose of preliminary office, the running of prescriptive
investigation, it does not interrupt the running of period is interrupted!
the prescriptive period. What interrupts is the
filing of the complaint in court which has HELD: You (fiscal) are wrong. The
jurisdiction to try the case. filing of this case before your office did
not interrupt the running of the
That is reiterated 3 years later in the case of prescriptive period. You should have
People vs. Coquia. The SC modified it in the case filed that on time before the court.
of People vs. Olarte where a complaint for murder REASON: You look at the first
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 14

paragraph of Section 1 (1988 Rules): clear that the prescription period for the crime
in cases not covered by the Rules of (punished by a special law) is interrupted only
Summary Procedure So, that rule upon judicial proceeding filing in the court.
only applies in cases not covered by
the Summary Rules. But the case at Ayun pala! Akala ko the Zaldivia case settled
bar is covered by the Summary Rules the rule after all. Meron pa palang Reodica.
precisely because it is only arresto
menor. The SC said: The revised rules of Summary
Procedure cannot be taken to mean that the
Therefore, when the case is covered by the prescriptive period is interrupted only by the filing
Rules of Summary Procedure, the filing of the of a complaint or information directly with said
case with the fiscals office does not interrupt the courts. It must be stressed that prescription in
running of the prescriptive period (Zaldivia vs. criminal cases is a matter of substantive law.
Reyes, Jr, 211 SCRA 277). It should be the filing Pursuant to Section 5(5), Article VIII of the
of the case before the court which will interrupt. Constitution, this Court, in the exercise of its rule-
So, klaro yan until the 1998 case of making power, is not allowed to diminish,
increase or modify substantive rights. Hence, in
case of conflict between the Rule on Summary
REODICA vs. COURT OF APPEALS Procedure promulgated by this Court and the
292 SCRA 87, Davide, Jr. J. Revised Penal Code, the latter prevails.
(choy!) (Reodica vs. CA, supra)

FACTS: The charge here was Yan! When I was reading this case, I said,
slight physical injuries through what happened to Zaldivia case? Was it
reckless imprudence which is actually reversed? SC: No! No! We never reversed
punishable by arresto menor. It was Zaldivia. Neither does Zaldivia control in this
filed with the fiscals office within 2 instance. It must be recalled that what was
months but it was filed in the court involved therein was a violation of a municipal
beyond 2 months. And definitely, it is ordinance; thus, the applicable law was not Article
covered by the Summary Procedure. 91 of the Revised Penal Code, but Act. No. 3326,
In Zaldivia case, the filing in the fiscals x x x x x Under, Section 2 thereof, the period of
office does not interrupts the running prescription is suspended only when judicial
of the prescriptive period. proceedings are instituted against the guilty party.
Accordingly, this Court held that the prescriptive
NOTE: Remember, the case of period was not interrupted by the filing of the
Zaldivia involved a violation of an complaint with the Office of the Provincial
ordinance. Prosecutor, as such did not constitute a judicial
proceeding; what could have tolled the
HELD: But in the case at bar, this prescriptive period there was only the filing of the
is a felony under the Penal Code. information in the proper court. In the instant
[Dean I: Ginawan pa ng distinction!] If case, as the offenses involved are covered by the
it is a felony, the filing with the fiscals Revised Penal Code, Article 91 thereof and the
office is sufficient to interrupt the rulings in Francisco and Cuaresma apply. Thus,
running of the prescriptive period even the prescriptive period for the quasi offenses in
if it is covered by the Summary Rules. question was interrupted by the filing of the
But, if it is a light offense punished by complaint with the fiscal's office three days after
a special law like an ordinance and the vehicular mishap and remained tolled pending
therefore covered by the Summary the termination of this case. We cannot, therefore,
Rules, then the filing in the fiscals uphold petitioner's defense of prescription of the
office does not interrupt the running of offenses charged in the information in this case
the prescriptive period. (Reodica vs. CA, supra).

So I start to wonder: Saan ba nanggaling Yan! And I think the Reodica case is now
yung distinction na yun? The SC cited Act 3326 incorporated in the new rules. You read the last
which is the law governing prescription of crimes paragraph of Section 5, Rule 110:
punished by special laws. Whereas, Article 90 of
the RPC refers to prescription of felonies under The prosecution for
the Penal Code. And under Act 3326, it is very violation of special laws
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 15

shall be governed by the enforcement of the law

provision thereof. (n) violated. (3)

It is an entirely new sentence. Tama man yan Q: Supposes a complaint is filed but it was not
ba: The prosecution for violation of special laws sworn to or signed, is it valid?
shall be governed by the provision thereof. I think A: The SC said, it is a formal defect. It can be
thats the Reodica case: when it comes to cured. Generally, the signature is not needed.
prosecution for violations of special law, you
follow the special law.
Q: How do you define information?
A: Section 4, Rule 110:
SEC. 2. The complaint
or information The SEC. 4. Information
complaint or information defined. An information
shall be in writing, in is an accusation in
the name of the People of writing charging a person
the Philippines and with an offense,
against all persons who subscribed by the
appear to be responsible prosecutor and filed with
for the offense involved the court. (4a)
Q: Who are the people authorized to institute
Q: How do you file a complaint? or commence criminal cases?
A: The complaint shall be in writing in the A: The following:
name of the People of the Philippines and against 1. Offended party;
all persons who appear to be responsible for the 2. Peace officer;
offense involved. 3. Prosecutor; and
4. Public officer charged with the
Q: What happens if the criminal complaint or enforcement of the law.
information is filed in the name of the private
complainant? Q: How do you distinguish a complaint from
A: According to the SC, the complaint is information?
defective. It can be quashed but it is only a formal A: The following are the distinctions:
defect. In case it proceeds to trial, it should be
corrected but it is not really a fatal mistake. It can 1. As to who files the complaint or
be cured at any stage of the action by amending information
the information or even if it is not cured, there is a A COMPLAINT is filed by the (a)
valid judgment, you are found guilty, it shall no be offended party; (b) any peace officer;
voided merely because the title is defective. It will (c) prosecutor; (d) or any public officer
not invalidate the proceedings. charged with the enforcement of the
Now the law says, against all who appear to On the other hand, an
be responsible. Meaning, it is the sworn duty of a INFORMATION is prepared and
policeman or fiscal to file a case against all who signed by the prosecutor.
appear to be responsible. It does not say who are
guilty. 2. As to purpose
A COMPLAINT filed in court is
Q: How do you define complaint? either for preliminary investigation or
A: Section 3, Rule 110: for trial, but an INFORMATION filed in
court is only for trial.
SEC. 3. Complaint
defined. A complaint is
3. As to where to file
a sworn written statement
A Complaint may be filed in court
charging a person with an
or in the office of the prosecutor, but
offense, subscribed by the
offended party, any peace an INFORMATION is always filed in
officer, or other public court.
officer charged with the
4. A COMPLAINT can be filed in court,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 16

for trial or for mere preliminary Municipal Circuit Trial

investigation, or it can even be filed Courts when the prosecutor
not in court but in the prosecutors assigned thereto or to the
office for preliminary investigation. But case is not available, the
where an INFORMATION is filed, it is offended party, any peace
always filed in court and always for officer, or public officer
trial. charged with the
enforcement of the law
The complaint contemplated in Section 2 violated may prosecute the
could be filed in the MTC for trial (e.g. physical case. This authority shall
injuries), or it could be a complaint for murder in cease upon actual
the MTC, not for trial but for preliminary intervention of the
investigation. prosecutor or upon
elevation of the case to
The complaint filed in the fiscals office, city or the Regional Trial Court.
province, is known in Spanish as DENUNCIA
which is filed for preliminary investigation as 3. The crimes of adultery and
distinguished from the real complaint mentioned concubinage shall not be
in Section 3. In Section 3, it is always filed by the prosecuted except upon a
offended party. Although in some cases like when complaint filed by the
the offended party died, it is the police who files offended spouse. The
the affidavit complaint before the prosecutors offended party cannot
office for preliminary investigation. institute criminal
prosecution without
EXAMPLE: Pedro was a victim of robbery. including the guilty
parties, if both are
Can he file a complaint for robbery? YES. What if
alive, nor, in any case,
he died before he could file?
if the offended party has
consented to the offense
Q: Can the family of Pedro file a complaint
or pardoned the offenders.
under Section 3?
A: No, because they are not the offended
4. The offenses of seduction,
party. They should file a complaint in the fiscal. If abduction and acts of
you are talking of a complaint filed under Section lasciviousness shall not
3, you must be the offended party. But a be prosecuted except upon
complaint filed with the fiscal, need not be by the a complaint filed by the
offended party. (Evarle vs. Sucaldito, 156 SCRA offended party or her
808) parents, grandparents or
guardian, nor, in any
That is the distinction, and the fiscal has the case, if the offender has
authority to investigate any crime whether the one been expressly pardoned by
complaining is the victim or not because the any of them. If the
offended party is the People of the Philippines. offended party dies or
becomes incapacitated
before she can file the
SEC. 5. Who must complaint, and she has no
prosecute criminal known parents,
actions. grandparents or guardian,
1. All criminal actions the State shall initiate
commenced by a the criminal action in her
complaint or behalf.
information shall be
prosecuted under the 5. The offended party, even
direction and if a minor, has the right
control of the to initiate the
prosecutor. prosecution of the
offenses of seduction,
2. However, in abduction and acts of
Municipal Trial Courts or lasciviousness
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 17

independently of her
parents, grandparents, or If the public prosecutor or fiscal and the
guardian, unless she is private prosecutor do not agree on how to
incompetent or incapable prosecute, the fiscal will prevail because the
of doing so. Where the private prosecutor is under the direct control of
offended party, who is a the fiscal.
minor, fails to file the
complaint, her parents, Q: What happens if there are no fiscal in a
grandparents, or guardian municipality?
may file the same. The A: According to Section 5, Rule 110:
right to file the action However, in Municipal Trial Courts or Municipal
granted to parents, Circuit Trial Courts when the prosecutor assigned
grandparents, or guardian thereto or to the case is not available, the
shall be exclusive of all offended party, any peace officer, or public officer
other persons and shall be charged with the enforcement of the law violated
exercised successively in may prosecute the case.
the order herein provided,
except as stated in the This provision that if there is no prosecutor,
preceding paragraph. puwede sila, is taken from the ruling of the SC in
the case of People vs. Beriales, 17 SCRA 24.
6. No criminal action for Usually, in the absence of the fiscal, it is the
defamation which consists police authorities who act as prosecutors.
in the imputation of any However, according to the SC in the 1992 case of
of the offenses mentioned
above shall be brought
except at the instance of PEOPLE vs. RAMOS
and upon complaint filed
by the offended party. 207 SCRA 144
FACTS: The case is triable by the
7. The prosecution for MTC of Ilocos Norte. The offended
violation of special laws party went to the fiscal and filed the
shall be governed by the information. During the trial, the judge
provision thereof. (n) declared the fiscal in contempt of court
as when the case was called for trial,
However once the case is in court, the the fiscal was not around. The fiscal
complaint or information filed shall be prosecuted answered in writing. When asked to
under the direction and control of the public explain why he refused to come to
prosecutor. This shows the control of the court despite the previous order, he
government. This is one feature of the said his office is undermanned or
Inquisitorial System of criminal procedure. The understaffed. Thus he could not
fiscal has the absolute control. personally appear and prosecute. At
any rate, the fiscal pointed out in his
Q: Can the offended party hire his own lawyer explanation that the prosecution of the
to prosecute? case can be handled by the offended
A: YES, the offended party can hire his own party or any peace officer.
lawyer who is known as the private prosecutor.
The personality of the private prosecutor is based ISSUE: Who should prosecute the
on the provision in the RPC that every person case? The public prosecutor or any of
criminally liable is also civilly liable. It is because the persons mentioned in Section 5,
of this civil liability that the offended party has an Rule 110?
interest in the criminal case.
HELD: It is the public prosecutor
Even if the public prosecutor may turn over who should prosecute the case
the active conduct of the trial to the private because he already knew about the
prosecutor, he must be present during the case. He was the one who
proceedings because he is, by law, duty-bound to investigated the case. Therefore, he
take charge of the prosecution of the case until its should continue in the prosecution of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 18

the case in court. While it is true that prosecutor. That is only applicable if you are
the law allow the offended party, any talking of the trial court. But if the criminal case is
peace officer, or other public officer to lifted in the CA or SC on appeal, wala ka nang
prosecute a criminal case in places pakialam. It should be the Solicitor General who
where there are no fiscals available, must represent the People of the Philippines.
that is only the EXCEPTION.
The GENERAL RULE is that the The next paragraphs of Section 5 are
fiscal himself should handle the somehow reiterated in Article 144, RPC, which is
prosecution of the criminal case. It is popularly known as PRIVATE CRIMES:
his duty and moral obligation to
prosecute the case after having The crimes of adultery
conducted the investigation and, and concubinage shall not
believing that there is a case, filed an be prosecuted except upon
information in court. a complaint filed by the
The Court feels that in those offended spouse. The
cases where the prosecutors offended party cannot
themselves have filed the criminal institute criminal
charges, there is all the more reason prosecution without
for them to actively intervene in their including the guilty
prosecution. Having presumably made parties, if both are
the necessary investigation of these alive, nor, in any case,
cases before filing the corresponding if the offended party has
informations, they are the best position consented to the offense
to handle their prosecution on the or pardoned the offenders.
basis of their initial findings. If the The offenses of
prosecutor had not determined the seduction, abduction and
prima facie guilt of the accused, he acts of lasciviousness
should not have filed the information in shall not be prosecuted
the first place. At any rate, there is upon a complaint filed by
something not quite correct in the the offended party of her
prosecutor filing the information parents, grandparents or
himself and then leaving the offended guardian, nor, in any
party in the lurch, as it were, by asking case, if the offender has
been expressly pardoned by
him to fend for himself in prosecuting
any of them. If the
the case.
offended party dies or
The exception provided in Section
becomes incapacitated
5 must be strictly applied as the
before she can file the
prosecution of crime is the
complaint, and she has no
responsibility of officers appointed and
known parents,
trained for that purpose. The violation
grandparents or guardian,
of the criminal laws is an affront to the
the State shall initiate
People of the Philippines as a whole the criminal action in her
and not merely the person directly behalf.
prejudiced, who is that the prosecution
be handled by persons skilled in this
Take note that in the third paragraph, RAPE is
function instead of being entrusted to
already deleted. It is not a private crime anymore.
private persons or public officers with
It is already a crime against person because of
little or no preparation for this
the new law RA 8353, Anti-Rape Law of 1997
responsibility. The exception should be
amending the RPC. Now, it can be prosecuted
allowed only when the conditions
without the private complainant.
therefor as set forth in Section 5, Rule
110 of the Rules on Criminal
Q: The SC said in one case that there is no
Procedure have been clearly
such animal as Private Crimes because every
crime is against the State. But why do we call
these private crimes - adultery, concubinage,
seduction, abduction, and acts of lasciviousness?
According to Section 5, the criminal action
A: It is because of all these requirements: the
shall be under the control and supervision of the
complaint is duly prepared, signed and sworn to
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 19

by the offended party. Actually, the correct name merely a formal, requirement. While in point of
of these crimes is CRIMES WHICH CANNOT BE strict law the jurisdiction of the court over the
PROSECUTED DE OFFICIO. offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just
Q: What is the reason for the requirement that as jurisdictional mandate since it is that complaint
they shall be prosecuted upon complaint of the which starts the prosecutory proceeding and
offended party? without which the court cannot exercise its
A: This requirement was imposed out of jurisdiction to try the case. (People vs. Mandea,
consideration for the offended party or her 60 Phil. 372; People vs. Surbano, 37 SCRA 565;
relatives who might prefer to suffer the outrage in People vs. Babasa, 97 SCRA 672; Pilapil vs.
silence rather than go through with the scandal of Ibay-Somera, 174 SCRA 653)
a public trial. (Sumilin vs. CFI, 57 Phil. 298;
People vs. Santos, 101 Phil. 798) But there is a SECOND VIEW: You can
question the filing but it is not jurisdictional. It is a
In ADULTERY or CONCUBINAGE, the condition precedent but not jurisdictional because
offended party is only the husband or the wife. if you say jurisdiction, they are vested by the
The parents have nothing to do with the adultery judiciary law. There is nothing in the judiciary law
or concubinage. In adultery, it is not allowed that which can speak about complaint filed in court by
the husband files a complaint against his wife the offended party. (People vs. Estrebella (1986);
without including her paramour. Nor is it allowed People vs. Saniaga (1988); People vs. Bugtong
that the husband files a case for adultery against (1989); People vs. Tarul (1989); People vs.
his wifes lover without including his wife. The law Cabodac (1992); People vs. Leoparde (1992);
provides, xxx the offended party cannot initiate People vs. Hilario (1993)
criminal prosecution without including the guilty
parties, if both are alive, xxx. The same rule PROBLEM: Suppose a victim of a private
applies in concubinage. crime in a municipality prepared a complaint,
swore to it, and FILED IT IN THE MTC FOR
In either case, consent or pardon by the PRELIMINARY INVESTIGATION. [Remember
offended party is a bar to criminal prosecution. that in provinces, there are two (2) possibilities if
Consent indicates allowance. you want to file a case in the RTC: (1) file a
complaint in the MTC for preliminary
SEDUCTION, ABDUCTION, ACTS OF investigation, or (2) file a complaint with the
LASCIVIOUSNESS. If the victim is already of provincial fiscals office also for preliminary
AGE, the decision of filing or not filing the case investigation. Unlike in the cities we only file with
belongs to her. the fiscal because only one is allowed to conduct
preliminary investigation in chartered cities.] After
Q: What happens if the offended party is a the preliminary investigation, the judge said there
MINOR and does not want to file? is a probable cause and therefore, forwarded the
A: The parents, grandparents, or guardian case to the provincial fiscal. The fiscal filed the
may file the complaint. information in the RTC.

Q: Suppose the minor is incompetent as in the Q: Can the RTC try the case when there is no
case of insanity, who will file the complaint? complaint by the offended party in the RTC?
A: Her parents, grandparents or guardian my A: The SC said YES. The complaint filed in
institute the case. the MTC for preliminary investigation will already
serve the purpose. There is no need for another
Q: Suppose the minor has no known parents, complaint to be prepared and signed by the victim
grandparents, or guardian? to be filed with the RTC.
A: The State shall initiate the criminal action in
her behalf under the principle of Parens Patriae. PROBLEM: Suppose the offended party of a
private crime in a municipality, instead of filing the
Q: What happens when an information for complaint in the MTC, she filed it in the office of
adultery or concubinage is filed without a the provincial fiscal or prosecutor.
complaint? Is it a jurisdictional effect?
A: According to some rulings, it is a Q: Will the case prosper?
jurisdictional defect. The SC held that compliance A: The SC said NO. The case must be
in Article 344 and counterpart (as well as other dismissed because the complaint contemplated
crimes against chastity) is jurisdictional, and not by the law, signed and sworn to by the victim, is a
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 20

complaint FILED IN COURT, not a complaint filed offense charged because under Article
in the fiscals office. 344 of the RPC, the requirement for
the complaint of adultery was not
Q: What should be the correct procedure? complied with citing the case of People
A: After preliminary investigation, the fiscal vs. Santos, 101 Phil. 798, where it was
should prepare a complaint and should prepare held that the complaint filed in the
an information signed by him and the victim. fiscals office for a private crime is not
Unlike where the complaint filed in the MTC for the complaint contemplated by law. On
preliminary investigation, there is no need for that basis, RTC Judge Ilarde
another complaint to be filed in the RTC. But if the dismissed the case.
complaint (denuncia) is filed in the fiscals office, The prosecution went to the SC on
the rule is: it will not serve as the basis for a certiorari.
criminal prosecution. In connection with this
principle is the leading case of HELD: The respondent trial court
is wrong. The order of dismissal is
hereby set aside and is directed to
PEOPLE vs. ILARDE proceed with the trial of the case. It
must be borne in mind, however, that
125 SCRA 11 this legal requirement was imposed
out of consideration for the aggrieved
FACTS: This is a case for adultery party who might prefer to suffer the
originated in the City of Iloilo. A man outrage in silence rather than go
caught his wife in an act of adultery. through the scandal of a public trial.
The next thing he did was to execute Thus, the law leaves it to the option of
an affidavit-complaint, which he filed in the aggrieved spouse to seek judicial
the office of the City Prosecutor of redress for the affront committed by
Iloilo City. In his affidavit he said, Im the erring spouse. And this, to Our
formally charging my wife and X and mind, should be the overriding
would request this affidavit be consideration in determining the issue
considered as a formal complaint of whether or not the condition
against them. While the case was precedent prescribed by said Article
pending before the fiscal for 344 has been complied with. For
investigation, he died. So the Fiscal needless to state, this Court should be
asked how he can file an information guided by the spirit, rather than the
in court when there is no complaint letter, of the law.
because the rule is, the complaint filed In the case at bar, the desire of
with the fiscals office is not the the offended party to bring his wife and
complaint contemplated by law; there her alleged paramour to justice is only
must be a complaint filed signed by too evident. Such determination of
the offended party. But in this case, purpose on his part is amply
the complainant was already dead. demonstrated in the dispatch [speed]
Although there was an affidavit- by which he filed his complaint with the
complaint. fiscals office [because he filed the
The fiscal knew that and so he complaint the day after the crime
prepared an information for adultery happened]. The strong and equivocal
charging the wife and her paramour. In statement contained in the affidavit
the information he stated: The filed with the Fiscal's Office that I am
undersigned City Fiscal upon sworn formally charging my wife of the crime
statement originally filed by the of adultery and would request that this
offended party, xerox copies of which affidavit be considered as a formal
are hereto attached as annexes A and complaint against them is a clear
B xxx So what he did was to show of such intent.
incorporate the affidavit of the The ruling in People vs. Santos is
deceased offended husband in the not applicable to the case at bar. In
information. that case, the sworn statement was
Now, the wife and the paramour not considered the complaint
moved to quash the information contemplated by Article 344 of the
alleging lack of jurisdiction upon the Revised Penal Code because it was a
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 21

mere narration of how the crime was The fifth paragraph of Section 5 is taken from
committed. Whereas, in the case at Article 360 of the RPC. Article 360 refers to the
bar, in the affidavit-complaint crime of libel or slander.
submitted by the offended husband,
he not only narrated the facts and Q: Is the crime of defamation [slander is when
circumstances constituting the crime of you defame somebody orally; libel is when the
adultery, but he also explicitly and defamation is in writing] a private crime?
categorically charged private A: NO.
respondents with the said offense
Im charging my wife and her Q: Can a case of slander be filed in court
paramour with adultery. without a complaint signed and sworn to by the
Moreover, in Santos, the SC offended party?
noted that the information filed by the A: As a GENERAL RULE, YES, EXCEPT
fiscal commenced with the statement when the defamation imputes to the offended
the undersigned fiscal accuses so and party the commission of any of the crimes
so, the offended party not having mentioned above. Meaning, it imputes to the
been mentioned at all as one of the offended party the commission of a private
accusers. But in the present case, it is offense like adultery, concubinage, abduction,
as if the husband filed the case. seduction, acts of lasciviousness (ACASA). In this
The affidavit of the husband here case, the criminal action shall be brought at the
contains all the elements of a valid instance of and upon a complaint filed by the
complaint under Section 5, Rule I10 of offended party.
the Rules of Court. What is more, said
complaint-affidavit was attached to the Q: Is the accusation mang-aagaw ng asawa
information as an integral part thereof, ng may asawa! an imputation of adultery?
and duly filed with the court. A: No. It is a mere implication of a vice or
Therefore, the affidavit complaint defect, not an imputation of adultery. The phrase
became the basis of the complaint was translated as seducer of the husbands of
required by Section 5. other woman. It implies that the person to whom
it is addressed is a FLIRT, a TEMPTRESS, or
one who indulges in inciting anothers husband.
So it became sort of an exception to the (Gonzales vs. Arcilla, November 18, 1991)
general rule that the affidavit-complaint in the
fiscals office is not the one contemplated by law. The last paragraph states that The
While I was reading this case, I noticed that the prosecution for violation of special laws shall be
fiscal was very imaginative on what he is going to governed by the provision thereof. The best
do, kasi alam niya ang rules eh. That fiscal is now example is the case of Reodica vs. CA, which we
Solicitor General Galvez. And I was surprised already discussed, that prescription for violation
why the husband drafted the affidavit that way. of a special law is not governed by the RPC but
Maybe he knew he was dying. Later, they found by special law. The ruling was emphasized in the
out that the husband was a lawyer. And do not be 1996 case of
shocked, the paramour was also a lawyer! So that
was a very interesting case. The ruling was
reiterated in the 1991 case of PEOPLE vs. LLENES vs. DICDICAN
JAROL (June 19, 1991).
July 31, 1996

Last paragraph, Section HELD: The institution of the

5, Rule 110: No criminal complaint in the prosecutors office
action for defamation shall interrupt the period of
which consists in the prescription of the offense charged
imputation of any of the under Section 1, Rule 110. The rule,
offenses mentioned above however, is entirely different under Act
shall be brought except at No. 3326, as amended, whose Section
the instance of and upon 2 explicitly provides that the period of
complaint filed by the prescription shall be interrupted by the
offended party. institution of judicial proceedings, i.e.,
the filing of the complaint or
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 22

information with the court. Therefore, SEC. 7. Name of the

the filing of the complaint in the fiscals accused.
office does not interrupt the running of The complaint or
the prescriptive period. That is only information must state the
true in felonies under the RPC. But name and surname of the
when in comes to special laws, we accused or any appellation
follow the special law. or nickname by which he
has been or is known. If
his name cannot be
Q: When is a complaint or information ascertained, he must be
sufficient? described under a
A: Read Section 6, Rule 110 fictitious name with a
statement that his true
name is unknown.
If the true name of the
SEC. 6. Sufficiency accused is thereafter
of complaint or disclosed by him or
information. appears in some other
A complaint or manner to the court, such
information is sufficient true name shall be
if it states the inserted in the complaint
1. name of the accused; or information and record.
2. the designation of (7a)
the offense given by
the statute;
3. the acts or Q: One of the requirements under Section 7 is
omissions complained of as that the name of the accused must be stated in
constituting the offense; the information. Eh kung nagkamali ka? Is that
4. the name of the fatal? What is the effect of an erroneous name
offended party;
given to the accused in the complaint or
5. the approximate date
of the commission of the
A: The defect is not fatal. The error will not
offense; and
produce any adverse effect because what is
6. the place where the
important is the identity of the person of the
offense was committed.
accused, not his name . (People vs. Ramos, 85
7. When an offense is
Phil. 683) Kung nagkamali, eh di palitan!
committed by more than one
person, all of them shall [problema ba yun? Ha!] This reminds me of the
be included in the Fortun brothers the Delia Rajas incident during
complaint or information. the impeachment trial.

Q: Suppose the information is defective, SEC. 8. Designation

kulang-kulang ba, there are some essential facts of the offense. The
required by law which are not stated. Can it be complaint or information
cured during the trial? shall state the
A: YES. Any defect in the complaint or designation of the offense
information may be cured by evidence introduced given by the statute, aver
by the prosecution, EXCEPT: the acts or omissions
constituting the offense,
1. when the defect is jurisdictional and specify its qualifying
(People vs. Abad Santos, 76 Phil. and aggravating
744); or circumstances. If there is
2. when the complaint or information no designation of the
does not charge any offense. (People offense, reference shall
vs. Austria, 94 Phil. 897) be made to the section or
subsection of the statute
punishing it. (8a)
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 23

still be considered as such. My only interpretation

of this provision is that if this is not alleged in the
SEC. 9. Cause of complaint or information and the prosecution
the accusation The acts starts proving it, the defense can object and that
or omissions complained of objection must be sustained. But if there is no
as constituting the objection, the old rule can still be applied because
offense and the qualifying of estoppel or waiver.
and aggravating
circumstances must be Well, that is my personal view on that matter. I
stated in ordinary and do not know whether my view is correct or not.
concise language and not But I believe my view is correct because anyway
necessarily in the even the judges here in Davao are asking for my
language used in the view. I receive calls from time to time from these
statute but in terms people. [ehem!]
sufficient to enable a
person of common Q: Lets go to Section 9. Suppose the offense
understanding to know what says, criminal case for murder but in the body of
offense is being charged the information there is no allegation of a
as well as its qualifying qualifying circumstance. What does the fiscal
and aggravating charge, Murder or Homicide?
circumstance and for the A: HOMICIDE. The SC held that the
court to pronounce designation of the offense is not an essential
judgment. (9a) element of a complaint or information, because,
at most that is a mere conclusion of the fiscal.
There is one major change here. The law now What is controlling is the recital of facts appearing
specifically emphasizes under Section 8 and in the body of the complaint or information.
Section 9 that you do not only mention the crime. (People vs. Agito, April 28, 1958; People vs.
You must also specify the aggravating and the Cosare, 95 Phil. 656)
qualifying circumstance. What is new here is the
aggravating. But there are some EXCEPTIONS like what
happened in the case of
The old rule is, there is no need of specifying
the aggravating circumstances because anyway, U.S. vs. TICZON
they are not elements of the crime. They are only
circumstances that affect the criminal liability and 25 Phil. 67
if the aggravating circumstances are proven, they
can still be applied against the accused. The new FACTS: A complaint was filed by
law now says you do not only specify the the woman stating that while the
qualifying, you also mention the aggravating. offended party was inside her house at
Now, how does it affect the old jurisprudence? night and all the doors were locked
and all the windows were closed, the
Q: My question is this, based on my own accused surreptitiously entered the
interpretation of Sections 8 and 9, Problem: the house and approached the offended
information does not allege the aggravating party who was asleep, raised her skirt
circumstances. In the course of the trial, the and at that very moment the woman
prosecution starts proving. Under the new rule, woke up and resisted. [This can be an
the defense can object to any evidence to prove attempted rape but the element of the
the aggravating circumstance because the same crime was not fully accomplished
is not mentioned in the information. But I will go because of an act or accident other
further: an aggravating circumstance is not than her own resistance.] But sabi ng
alleged in the information and the prosecution caption, for trespass to dwelling
starts proving and there was no objection on the pwede man din.
part of the defense. Now, can the court in
imposing the penalty, consider the aggravating HELD: Sabi mo, trespass. OK,
circumstance? eh di trespass! So the caption prevails.
A: My personal view is YES because of the When the facts appearing in the
waiver for failure to object, in the same manner complaint or information are so stated
that an aggravating circumstance not alleged may that they are capable of two or more
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 24

interpretations, then the designation of

the offense in the caption controls. EXAMPLE: ROBBERY WITH FORCE UPON
THINGS. There was no allegation that the
accused entered the house of the victim with the
Take note that under the new rape law, RA use of force upon things but the information
7659, there are some circumstances which if alleges that the accused entered the house of the
present call for the mandatory death penalty. In victim by passing through a hole in the ceiling, an
the case of opening not intended for entrance. Ano yan? The
SC said that is tantamount to use of force upon
PEOPLE vs. MANHUYOD, JR. things. (People vs. Lareza, 73 Phil. 658)

May 20, 1998 EXAMPLE: MURDER. There was no

allegation of treachery (alevosia) but the
HELD: When you charge information says that when the accused killed the
somebody with a heinous crime such victim, the latter was not in the position to defend
as rape, the information must make himself. The SC said they mean the same thing.
reference to the new law. If not, it will In fact, it became clearer. (People vs. Gustahan,
only be translated as an ordinary 47 Phil. 376)
aggravating circumstance because the
information was charged after the Another interesting case of treachery is the
effectivity of the heinous crime law. case of
Finally, a few words on the lack of
care devoted to the preparation of the
information filed before the trial court. PEOPLE vs. ABUYEN
The Office of the Provincial Prosecutor 213 SCRA 569 (1992)
had in its possession evidence that the
crime was committed by a father FACTS: The accused here killed
against his 17-year old daughter after two (2) children, one was aged 6 years
the effectivity of R.A. No. 7659, hence and the other was 13 years old. He
the imposable penalty was death. It stabbed them. The information
was then necessary to make reference charges the accused with the killing
to the amendatory law to charge the the 2 minors. There is no statement
proper offense that carried the that there was treachery. All that the
mandatory imposition of capital information says is that the accused
punishment. killed the 2 minors.
Prosecutors are thus admonished
to exercise utmost care and diligence ISSUE: Was there a murder?
in the preparation of complaints or
informations to avert legal HELD: YES. When the accused
repercussions which may prove killed the minors, that is equivalent of
prejudicial to the interest of the State killing by treachery and therefore
and private offended parties. qualifies the killing to murder.
It has, time and again, been held
that the killing of minor children who,
Q: According to Section 9, the elements of the by reason of their tender years, could
crime must be recited in the complaint or not be expected to put up a defense is
information. Must the exact language of the law considered attended with treachery
be used? even if the manner of attack was not
A: NO. You can use other words provided it shown. The allegation in the
would convey the same idea or thought. Information that the victims are both
minors is to be considered compliance
EXAMPLE: THEFT. The information does not with the fundamental rule that the
contain the allegation intent to gain which is an qualifying circumstances should be
element of the crime of theft. The SC said it is not alleged in the information.
required because those words are presumed from It is commonly understood in
the information that the accused appropriated to practice that when the victim in
himself the things belonging to the offended party. physical injuries, homicide, or murder
(U.S. vs. Alabot, 38 Phil. 698) cases is a child of tender years, he is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 25

described in the information as a prosecution and the defense, including their rebuttal
minor. Minority in such a case should and sur-rebuttal evidence, rendered its now assailed
not be equated with its statutory decision.
meaning that is, below eighteen
(18) years old. It is used not so much HELD: Unlike the omission of an
as to state the age of the victim ordinary recital of fact which, if not excepted
(otherwise, the charging fiscal would from or objected to during trial, may be
have simply placed the exact ages) corrected or supplied by competent proof, an
rather, it is more of a description of the allegation, however, of conspiracy, or one that
state of helplessness of the young would impute criminal liability to an accused
victim. for the act of another or others, is
indispensable in order to hold such person,
regardless of the nature and extent of his own
Q: CONSPIRACY. Jet and Pao are charged participation, equally guilty with the other or
for murder pero ang sinasabi sa information, it others in the commission of the crime. Verily,
was Jet who killed the victim. Now, in conspiracy, an accused must know from the information
the act of one is the act of all. Would that whether he faces a criminal responsibility not
sufficiently charge Pao? only for his acts but also for the acts of his co-
A: NO. Kailangan mong i-describe ang accused as well.
conspiracy para matamaan si Pao. Klaruhin mo Meaning, if you are charging me
yung conspiracy, otherwise if the allegation of for what my companion did, you better
conspiracy is not shown against Pao, then, there be clear that there is conspiracy para
is no crime of conspiracy. This is the guideline ma-apply yung doctrine na the act of
laid down by the SC in the 1998 case of one is the act of all.
The opinion of the trial court to the
effect that conspiracy may be inferred
from the allegation of abuse of
292 SCRA 260 superior strength and with the aid of
armed men is difficult to accept. the
information must state that the
- Calpito was a student from Baguio city. One time, he accused have confederated to commit
wanted some fishballs so he and Gosil bought some the crime or that there has been a
fishballs worth P15. When Calpito counted his change, community of design, a unity of
he found out that he only received P35 for his P100. purpose or an agreement to commit
Confronted by Calpito and Gosil, the fishball vendor the felony among the accused.
would not admit that he had short-changed Calpito. Conspiracy must be alleged, not just
The 3 men kept arguing. Moments later, Soriano saw inferred, in the information on which
eight men rushing towards Gosil and Calpito. Calpito basis an accused can aptly enter his
got stabbed and fell to the ground. plea, a matter that is not to be
- The RTC found Ronnie Quitlong, Salvador Quitlong confused with or likened to the
adequacy of evidence that may be
and Emilio Senoto guilty of murder for the killing of
required to prove it.
Jonathan Calpito. Accused-appellants, shortly after the
filing of the information, submitted a motion for You can prove conspiracy by direct evidence.
reinvestigation alleging that it was a certain Jesus But kahirap niyan uy unless you were there
Mendoza who stabbed the victim. The trial court acted listening. In criminal law, when two or more
favorably on the motion. The City Prosecutor filed a persons act together in unison to attain the same
motion to admit an amended information on the basis of criminal objective, then conspiracy can be
affidavits. The information, as amended, included inferred. Meaning, you can use that as evidence
Jesus Mendoza among the named accused. But to convict a person but for purposes of filing the
unlike accused-appellants who were immediately case, you must expressly allege it.
arrested after the commission of the crime, Jesus
Therefore, for purposes of charging
Mendoza remained at large. At their arraignment, the
express. For purposes of proving implied. Yan!
detained accused pleaded not guilty to the crime This is precisely because directly proving it, is
charged. difficult. The manner of charging is different from
- On 21 April 1995, the trial court, following his the manner of proving. (People vs. Quitlong,
evaluation of the respective submissions of the supra)
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 26

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

it is not enough for the information to say that the can not be taken into account in the
victim is a person in authority. The charge for present case because of the
such offense must be so framed as to clearly insufficiency of the allegation on this
allege the functions of the person assaulted, so point in the city fiscal's information.
as to show that he comes under the definition of While the information specifies the
person in authority. (People vs. Carpizo, 80 Phil. particular offense (attempted robbery
234) Of course, I believe that if the position is in an inhabited house) for which the
obvious, the court will take judicial notice of that. defendant-appellant was alleged to
There is no need to describe. But if it comes to have previously been convicted and
some position which are not really common, the also the date of the last conviction for
information must recite the functions. theft which occurred prior to the date
of the commission of the offense now
EXAMPLE: TREASON. An information for charged. But this does not make the
treason is insufficient if it merely alleges generally information sufficient in law for it fails
that the accused had adhered to the enemy, to specify the date of the conviction of
giving her aid and comfort. The charge must be the accused for the crime of attempted
specific by stating what is termed as overt act of robbery. For all we know, the two
giving aid and comfort to the enemy. (Guinto vs. previous convictions for attempted
Veluz, 77 Phil. 798) robbery in an inhabited house and
theft may have taken place on the
EXAMPLE: LIBEL. In charging libel, the same date (November 14, 1934) or on
prosecution must single out the libelous two different dates so close together
statements and quote verbatim in the complaint as to warrant the court in considering
or information. (People vs. Bustos, 59 Phil. 375) the two convictions as only one for the
purposes of the application of the
We will go to another issue regarding habitual delinquency law.
HABITUAL DELINQUENCY. The case is Upon the other hand, it may
happen that a person accused of robo,
PEOPLE vs. VENUS hurto, estafa or falsificacion may have
been convicted of any of said offenses
63 Phil. 435 after the commission of the crime with
which he is charged. We have already
FACTS: The City Fiscal of Manila held that previous convictions in order
file with the CFI of Manila an to be considered for the purpose of
information charging the accused with imposing the additional penalty for
the crime of robbery in an inhabited habitual delinquency, must precede
house. The information alleges, the commission of the crime charged.
among others, that the accused is a Other instances may be mentioned but
habitual delinquent, he having been those given suffice to demonstrate the
previously convicted by final necessity of charging the existence of
judgement rendered by a competent habitual delinquency with sufficient
court, once for the crime of attempted clearness and certainty to enable the
robbery in an inhabited house and courts to properly apply the provisions
once for theft, the date of his last of our law on the subject.
conviction being November 14, 1934. It is therefore urged upon
Note: There is habitual prosecuting attorneys that in the
delinquency when, for a period of ten prosecution of cases of this nature,
(10) years, from the date of his last they should not content themselves
conviction or release for a crime of with a general averment of habitual
serious or less serious physical delinquency but should specify the
injuries, robbery, theft, estafa and dates:
falsification, he is found guilty of any of 1. of the commission of the
said crimes, a third time or oftener. previous crimes,
2. of the last conviction or
ISSUE: Was there a sufficient release, and
allegation of habitual delinquency? 3. of the other previous
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 27

convictions or release of in the ordinance pertaining to the age

the accused. range of 18 to 35 is part of the crime,
Informations filed in these cases because if it is part of the crime, then it
should be sufficiently clear and must be alleged.
specific to avoid the improper
imposition of the additional penalty on HELD: The SC ruled that the age
a plea of guilty to a general allegation requirement is an element of the crime
of habitual delinquency, no less than and therefore must be alleged. Failure
the frequency with which hardened to allege it is fatal because he may
criminals escape the imposition of the belong to the exempt age in which
deserved additional penalty provided case the prosecution may not prosper.
for by law.
Let us try to compare that in the case of
U.S. vs. YAO SIM
Q: Must excepting clauses be alleged in a 31 Phil. 301
complaint or information?
A: It DEPENDS. If the excepting clause forms FACTS: The accused was charged
part of the definition of the offense, it must be with violation of the opium law. The
alleged; but if it is a matter of defense, it need not opium law was the predecessor, the
be alleged in a complaint or information. (U.S. vs. great grandfather of the Dangerous
Chan Toco, 12 Phil. 262) Drugs Act. That was the old law which
prohibits the use and smoking of
Sometimes it is hard to distinguish what is an opium without the prescription of a
element of a crime, and what is a matter of licensed practicing physician.
defense as stated in a law. The exceptive clauses The accused argued that there is
such as provided further, and provided no crime committed because the
furthermore are very confusing. Sometime you information did not allege that the
get lost. Ano ba itong provided further? Is this accused has no prescription from a
part of the crime or is it a part of the defense? duly licensed or a practicing physician.
Confusing ba! Like in the old case of But the prosecution contended that it
is for the accused to prove that he has
U.S. vs. POMPEYA a prescription. The element of the
crime is only smoking opium.
31 Phil. 245
HELD: The SC said, the
FACTS: The municipal prosecution is correct. It is not part of
government passed an ordinance the crime, it is a matter of defense.
which requires all able-bodied male The crime is smoking opium, period!
residence of the municipality between But if you say you have prescription,
the ages of 18 and 35 to assist in then you prove it.
peace and order campaign in the
municipality by rendering services. That is sometimes the difficult areas in the
The accused violated the ordinance. law. You dont know whether it is part of a crime
So he was charged. The information or just a part of your defense. There are things
says he is a resident of the that we have to determine. This is part of our
municipality, he is male, he is able- study of Section 9.
bodied and he refuses to render
service to the government. According Q: Like for example, yung ILLEGAL
to the accused, the information is POSSESSION OF FIREARMS. Do you have to
defective, it does not reconcile all the allege that the firearm is not licensed?
elements because it does not state A: The SC said YES, that is part of the crime.
how old he was. But according to the
prosecutor, No! I do not have to Q: But in DANGEROUS DRUGS ACT, iba
allege your age. It is for you to prove man. If you are in possession of opium, marijuana
that you are below 18 or more than or whatever, you are liable if without authority of
35! law. Now, who will prove the authority of law? Is
that part of the definition of the crime?
ISSUE: Whether or not the clause A: The SC said NO. It is for you to prove that
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 28

you are authorized. The crime is the possession SEC. 11. Date of
or use of marijuana. That you are authorized to commission of the offense.
possess or smoke is a matter of defense. - It is not necessary to
state in the complaint or
Now lets go to the next section. You must information the precise
allege the place of the commission of the crime. date the offense was
You must also allege the date of the commission committed except when it
of the crime. is a material ingredient
of the offense. The
offense may be alleged to
SEC. 10. Place of have been committed on a
commission of the offense. date as near as possible
The complaint or to the actual date of its
information is sufficient commission. (11a)
if it can be understood
from its allegations that
the offense was committed Q: How about yung date? Is it necessary that
or some of its essential it should be very accurate?
ingredients occurred at A: NO. What is important is that the
some place within the information alleges that the crime was committed
jurisdiction of the court, on or about a certain date.
unless the particular
place where it was Q: The information said that Judy committed
committed constitutes an homicide on January 20. During the trial,
essential element of the pinalabas na December 20 pala one month
offense charged or is earlier. Is that harmless or fatal?
necessary for its A: It is still covered by the phrase on or
identification. (10a) about. A variance of a few months between the
time set out in the indictment and that established
Q: When you say place, do you have to be by the evidence during the trial has been held not
very specific as to the place where the crime was to constitute an error so serious as to warrant
committed? You must describe the kalsada, the reversal of a conviction solely on that score alone.
street? (Rocaberte vs. People, 193 SCRA 192)
A: NO. As a matter of fact, if you look at the
information, it just says, you committed the crime But when you say December 2000 and then
in Davao City without even stating what barangay the crime pala was committed in 1995, ay sobra
or barrio. So, the place of the commission of the na yan! That is too much. Five (5) years is no
crime maybe stated generally. What is only longer covered by on or about. That is already
important is it is within the territorial jurisdiction violative of Section 11. A variance of several
years, or the statement of the time of the
EXCEPTION when the place of the commission of the offense which is so general as
commission of the crime constitutes an essential to span a number of years has been held to be
element of the crime charged. Yan! You must be fatally defective. (Rocaberte vs. People, 193
specific. Examples: SCRA 192)

EXAMPLE: TRESPASS TO DWELLING. You Q: And what is the remedy in that case?
must specify that the crime was committed by A: The remedy against an indictment that fails
entering into the dwelling of somebody. You to allege the time of the commission of the
cannot just say that he committed it in Davao offense with sufficient definiteness is a motion for
City. You must say na pumasok siya sa bahay na a bill of particulars (Rocaberte vs. People, 193
ito. Or SCRA 192). Do not dismiss the information. That
was commented by the SC in the recent case of
EXAMPLE. ROBBERY IN AN INHABITED People vs. Garcia, November 6, 1997 (281 SCRA
DEVOTED TO WORSHIP. You must state the
particular house. Kailangan specific ka diyan. I have to admit that the rules now try to make
a gap between the date of the commission of the
crime as alleged in the information and the actual
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 29

date of commission to be not so far. You look at complaint or information

Section 11: xxx The offense maybe allege or and the record.
committed on a date as near as possible to the (c) If the offended
actual date of its commission. That phrase as party is a juridical
near as possible is not found in the 1985 rules. person, it is sufficient
to state its name, or any
The ONLY EXCEPTION is just like in the name or designation by
Section 10, UNLESS the date of the commission which it is known or by
of the crime is an essential element of the crime. which it may be
Like for example: identified, without need
of averring that it is a
EXAMPLE: VIOLATION OF ELECTION juridical person or that
CODE, drinking liquor during election day. You it is organized in
must be specific kung anong araw yun. Hindi accordance with law. (12a)
pwedeng on or about election day. Hindi pwede
yan! If you drank liquor before, wala mang crime. Lets go to the next rule name of the
If you drink liquor after, wala mang crime ba! offended party. You must allege also who is the
victim. We are talking here about the victim the
EXAMPLE. INFANTICIDE. It is committed by private offended party.
killing a child less than 3 days old or less than 72
hours. If the infant is exactly 3 days old, it is no Q: Why is it that the name of the offended
longer infanticide. So the information must be party must be alleged in the information?
very specific that the child was born on this day, A: First, the general rule is that, aside from the
on this time and the killing was done on this day, People of the Philippines, there is a private victim.
on this time. Second, so that we will know to whom the court
will award the civil liability.

Q: Is there a possibility by which the name of

SEC. 12.
Name of
the offended party is not mentioned in the
the offended party. information but the same is still valid?
The complaint or A: YES. Paragraph [a], in a crime against
information must state the property. If you do not know who is the victim of
name and surname of the theft or robbery, it is enough that you describe the
person against whom or property in the information.
against whose property the
offense was committed, or
EXAMPLE: A thief, nahuli and he was found
any appellation or
in possession of stolen goods and he admitted he
nickname by which such
stole. Kanino? Ewan ko. Basta gi-snatch ko man
person has been or is
lang ito. Can the police file a case? YES. You
known. If there is no
just describe the property in the information even
better way of identifying
if we dont know the owner because you commit
him, he must be described
theft when you take personal property belonging
under a fictitious name.
(a) In offenses against to another with intent to gain. What is important is
property, if the name of that, it belongs to another.
the offended party is
unknown, the property must PEOPLE vs. CFI OF QUEZON BR. 5
be described with such
particularity as to 209 SCRA 704
properly identify the
offense charged. FACTS: The accused was charged
(b) If the true name of with timber smuggling or illegal cutting
the person against whom or of logs from public forest under PD No.
against whose property the 320. Ayan, wala talagang private
offense was committed is
offended party diyan. The only
thereafter disclosed or
offended party is the government. But
ascertained, the court
the information does not mention that
must cause such true name
the offended party is the State. The
to be inserted in the
accused challenged the information on
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 30

this ground. Somod-ong was designated the offended party,

instead of Demetria. Because of this, the trial
HELD: Even if the State is not
mentioned, the information is NOT court dismissed the case. The Government
defective. Why? You look at the appealed the order of dismissal to the Supreme
caption of the case People of the Court. The latter court on May 18, 1956,
Philippines. That is actually the affirmed the order of dismissal but ordered the
offended party.
Fiscal to file a new information against the same
Even if the State is not mentioned, the
defendants, which the latter did on June 12,
information is NOT defective. The caption
of the case People of the Philippines,
that is actually the offended party.
Issues: 1. Whether or not the crime of oral
Ownership is not an essential element of
defamation had already prescribed.
the offense as defined in the Revised Forestry
2. Can the Court convict the accused for
Code of the Philippines. Thus, the failure of
the crime of oral defamation?
the information to allege the true owner of the
forest products is not material, it was sufficient
that it alleged that the taking was without any
1. The filing of the complaint on August
authority or license from the government.
1, 1952 suspended the running of the
The failure of the information to allege
prescriptive period. Said period commenced to
that the logs taken were owned by the state is
run again from May 18, 1956, the date of
not fatal. The fact that only the state can
Supreme Court decision. From that date until
grant a license agreement, license or lease
June 12, 1956, when the second information
does not make the state the owner of all
was filed by the Fiscal, less than a month had
the logs and timber products produced in
elapsed. Adding this period to the seven days
the Philippines including those produced
which had already run from the date of the
in private woodlands. While it is only the state
commission of the crime on July 25, 1952 until
which can grant a license or authority to cut, gat
the filing of the first complaint, there is total of
her, collect or remove forest products it
only one month, which is less than the six
does not follow that all forest products
month prescriptive period. The crime charged
belong to the state.
has, therefore, not prescribed.
2. NO. Although the words are the
Q: What happens if there was an erroneous same, the slander against Demetria is a
naming of the offended party? separate offense. Meaning, there is a
A: In the case of
charging of a different offense from the
crime proven. A person cannot be convicted
PEOPLE vs. UBA of a crime not properly charged.
99 Phil 134
A mistake in putting in the
Facts: information the name of the offended party
A crime of serious oral defamation was is a material matter which necessarily affects
committed on July 25, 1952. A complaint was the identification of the act charged. The
filed therefor on August 1, 1952 in the Justice of case should be dismissed for variance
the Peace Court, which after finding probable between the allegations of the information
cause in its investigation, elevated the case to and the proof.
the Court of First Instance, where the However, there were exceptions in the past
Provincial Fiscal filed the corresponding like where the accused, who is not a doctor, was
information. However, by mistake, Pastora charged of illegal practice of medicine. The
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 31

information stated that the offended party is Paul. the witnesses are identical. What is the remedy?
Pag-trial, hindi pala si Paul. Si Inay pala dapat A: You file a Motion to Consolidate
ang victim. The SC said the accused can be
convicted. Why? The crime is illegal practice of
your trial joint trial for the 3 criminal cases.
That is the remedy, but not 1 information charging
medicine regardless of whether the victim is Paul
3 acts of homicide unless the other party does not
or Inay. (Diel vs. Martinez, 76 Phil. 273) Yan! It is
question the duplicitous character of the
different from the case of Uba.

EXCEPTION. The rule prohibiting duplicitous

complaints or informations provides for
exceptions: Except when the law prescribes a
single punishment for various offenses. When
the law provides only one penalty for 2 or more
SEC. 13. Duplicity offenses then Section 13 is not violated.
of the offense.
A complaint or
information must charge
only one offense, except single act produces 2 or more grave or less
when the law prescribes a felonies or when one offense is a necessary
single punishment for means to commit another. Actually, parang
various offenses. (13a) duplicitous yun eh kung tingnan mo because you
are accusing somebody of 2 homicides based on
The complaint or information must charge 1 single act. But that is only an exception. There
is one penalty anyway.
only one offense. It cannot charge 2 or more
offenses. If it does, it is called duplicitous EXAMPLE: SPECIAL COMPLEX CRIMES.
complaint or information. Robbery with homicide or Rape with Homicide.
That is not duplicitous. There is one penalty there.
Q: What is the remedy there?
A: Actually, you can file a Motion to Quash EXAMPLE: DELITO CONTINUADO. The
under Section 3 [f], Rule 117. But the defect is accused stole 2 rooster owned by 2 different
waivable because if you do not file a Motion to people. Actually, there are 2 acts of taking but in
Quash, the trial can proceed and if you are found the eyes of the law, there is only one crime. The
guilty for committing 2 or more crimes, then there accused was motivated by single criminal
will be 2 or more penalties (Section 4, Rule 120). resolution.
Dapat diyan, one information, one crime. That is
the GENERAL RULE. EXAMPLE: Babang was charged of the crime
of REBELLION. Rebellion she took up arms
This seems to go against the rule in civil against the government, killed soldiers, burned
procedure about joinder of causes of action. In government properties. Duplicitous yan! Kadami-
one complaint you can join 2 or more causes of dami nyan o! NO. That is not duplicitous because
action, although you can also file 2 or more based of the absorption doctrine the common
cases. Anong tawag diyan? Joinder of parties or crimes are not to be treated as separate crimes
joinder of causes of action. There is no such thing but are already absorbed in the rebellion. The SC
as joinder of crimes in criminal procedure. said there is no crime such as rebellion
complexed with murder or homicide. But why do
EXAMPLE: Patrick got a gun, went out of the you have to recite all these things? That is merely
street, then met three people. Binaril niya: Bang! a recital of the manner of the crime of rebellion.
Bang! Bang! Tatlong tao patay!. Now, he commits That is not a violation of Section 13.
three (3) crimes of homicide.

Q: Can I file one information accusing Patrick

of 3 homicide committed on that day?
A: NO. That is duplicitous. There must three 47 Phil. 536
(3) informations, one for each victim.
FACTS: There was a special law
Q: But that is troublesome. The evidence or penalizing in once section the crime of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 32

illegal practice of medicine AND state its reasons in

illegally advertising oneself as a resolving the motion and
doctor. The penalty of 5-year copies of its order shall
imprisonment shall be imposed on a be furnished all parties,
person who, not being a physician, especially the offended
practice medicine or advertise himself party. (n)
as a physician. There is only one
penalty for these acts. The information
alleges: That the accused is charged 3. If it appears at
of violating that law because he anytime before judgment
practiced medicine, or IN THE that a mistake has been
ALTERNATIVE, he advertised himself made in charging the
as a doctor when in fact, he is not. proper offense, the court
shall dismiss the original
ISSUE: Is the information complaint or information
duplicitous? upon the filing of a new
one charging the proper
HELD: NO. When the information offense in accordance with
merely recites in the alternative or section 19, Rule 119,
otherwise the different ways of provided the accused shall
committing the offense like the not be placed in double
information charges the accused for jeopardy. The court may
illegal practice of medicine and with require the witnesses to
give bail for their
illegally advertising himself as a
appearance at the trial.
physician, there is only one crime
because these are only alternative
ways of committing the crime.
In civil procedure, formal amendment no
The rule is different when the accused is problem. It can be allowed at any stage.
charged of violating 2 different sections of the Substantial amendment, for as long as there is
same law with distinct penalties which, if charged still no responsive pleading, the plaintiff can
in a single information, would render it duplicitous. amend his complaint anytime. Once a responsive
(People vs. Ferrer, 101 Phil. 234) pleading is filed, substantial amendment is
allowed but with leave of court.
SEC. 14. Amendment In criminal procedure the rule is: for as long as
or substitution. the accused has not yet entered his plea wala
1. A complaint or pang arraignment, the accused has not yet
information may be pleaded guilty or not guilty the information can
amended, in form or in be amended either in substance or in form.
substance, without leave
of court and when it can Q: What happens if the accused has already
be done without causing entered his plea? Can the information still be
prejudice to the rights of amended by the prosecution?
the accused. A: As to FORM Yes, as a matter of judicial
discretion. Kailangan merong permission.
2. However, any As to SUBSTANCE Never! Bawal! 100%
amendment before plea, prohibited.
which downgrades the
nature of the offense Q: How do you determine whether the
charged in or excludes any amendment is formal or substantial? Sometimes
accused from the complaint madali, sometimes mahirap. Kung wrong spelling
or information, can be lang, talagang formal yan.
made only upon motion by A: According to the SC based on certain
the prosecutor, with cases, the following are considered substantial
notice to the offended and therefore cannot be allowed after plea:
party and with leave of
court. The court shall 1. if the amendment changes the manner
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 33

of the commission of the offense; 1996

(People vs. Zulueta, 89 Phil. 752)
FACTS: Danilo Buhat was charged
2. if it changes the name of the offended with homicide in an information which
party; (People vs. Uba, 99 Phil. 134) alleged that the accused killed the
victim using superior strength. [Dapat
3. if it changes the date of the diyan murder eh because of superior
commission of the offense; (People vs. strength] Accused Buhat pleaded not
Opemia, 98 Phil. 698) guilty. After that the prosecution
Lets say, from the year 2000 to 5 sought to amend the information by
years backwards. Hindi pwedeng upgrading the crime charged from
maging formal yan. homicide to the more serious crime of
4. when the purpose of amendment is to
make the information charge an ISSUE: Is the amendment
offense when the original information SUBSTANTIAL or FORMAL?
does not charge an offense; (Wong vs.
Yatco, 99 Phil. 791) or HELD: It is FORMAL because the
allegation of superior strength is
5. when it changes the fact or ground of already there. In other words, from the
responsibility alleged in the original very start, it was really meant to be
information. (People vs. Labatete, 57 murder. Mabuti sana kung dinagdag
O.G. 6783) lang yung superior strength. It is
Example: from accomplice, already there all along.
gagawin kang principal. The same is The real nature of the criminal
not formal. charge is determined not from the
caption or preamble of the information
Q: How do you determine whether the nor from the specification of the
amendment is as to form or substance? provision of the law alleged to have
A: An amendment which merely states with been violated, they being conclusions
additional precision something which is already of law which in no way affect the legal
contained in the original information, and which, aspects of the information, but from
therefore, adds nothing essential for conviction for the actual recital of facts as alleged in
the crime charged is an amendment to form that the body of the information.
can be made at anytime. (People vs. Montenegro, Petitioner in the case at bench
159 SCRA 236) maintains that, having already pleaded
not guilty to the crime of homicide,
Q: The amendment is substantial if the the amendment of the crime charged
amendment will prejudice the rights of the in the information from homicide to
accused. How do you determine whether the murder is a substantial amendment
rights of the accused are prejudiced? prejudicial to his right to be informed of
A: The test as to when the rights of an the nature of the accusation against
accused are prejudiced by the amendment of a him. He utterly fails to dispute,
complaint or information is when a however, that the original information
1.defense under the complaint or information, did allege that petitioner stabbed his
as it originally stood, would no longer be available victim using superior strength. And
after the amendment is made, this particular allegation qualifies a
2.and when any evidence the accused might killing to murder, regardless of how
have, would be inapplicable to the complaint or such a killing is technically designated
information as amended. (People vs. in the information filed by the public
Montenegro, 159 SCRA 236) Meaning, evidence prosecutor.
which could help you in the first place will no
longer help you after the amendment that is Meaning, in the case of Buhat the prosecutor
prejudicial. believes originally that it is homicide, but it is
murder pala all along. We are not adding anything
265 SCRA 701, December 17, Kaya nga when I read it, I think theres
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 34

something wrong here with this kind of ruling. Just provided the accused shall
imagine, na-capital crime ka, tapos formal not be placed in double
amendment lang? You know my personal view in jeopardy. The court may
the case of Buhat, it should be treated only as require the witnesses to
homicide with the aggravating circumstance of give bail for their
abuse of superior strength. But that was what the appearance at the trial.
SC said eh. Wala tayong magawa. (Last paragraph, Section
14, Rule 110)
However, any amendment
before plea, which Lets go to basic.
downgrades the nature of
the offense charged in or Q: After the trial, the crime proven is different
excludes any accused from from the crime charge. However, the former is
the complaint or included in the latter. Will you dismiss the case?
information, can be made A: NO, just convict the accused for the crime
only upon motion by the proven since the crime proven is included in the
prosecutor, with notice to crime charged.
the offended party and
with leave of court. The EXAMPLE: Jenny was charged with murder.
court shall state its After trial, the prosecution proved homicide. What
reasons in resolving the will the court do? Dismiss the complaint for
motion and copies of its murder? NO. Jenny should be convicted for
order shall be furnished homicide because all the element of homicide are
all parties, especially also included in the crime of murder. (Rule 119)
the offended party.
(n)(second paragraph, However, that is not what Section 14
Section 14, Rule 110) contemplates. What is contemplated by Section
14 is, the offense proven is completely different
The second paragraph of Section 14 is new. from the crime charged and therefore the
Take note in the case of Buhat, from homicide to accused cannot be convicted for the crime proven
murder. Ito naman, baliktad. Lets say before because the crime proven is not included in the
arraignment, sabi ng Fiscal: Teka muna, di pala crime charged.
murder, homicide lang pala, So, gi-downgrade
ba! Q: So what should the court do?
A: The court should dismiss the complaint or
Now, if prosecutor will do that, he must notify information upon the filing of a new information by
the offended party, at least the family, so that he the prosecution. Provided, the principle of double
can be heard before the trial court allows. So this jeopardy is not applicable.
time, the amendment is not a matter of right.
Remember the case of Uba, where Vidz was
Again, when you amend a complaint or charged with oral defamation for uttering
information to downgrade the nature of the slanderous remarks against Jessamyn on a
offense or when the amendment is to exclude an particular date and time. But during the trial, it
accused from the complaint or information, of turned out that the slander was committed against
course, it can only be done by motion of the Lyle. Now, can Vidz be convicted for the crime of
prosecutor, notice to the offended party, and slander against Lyle, when the information says
decree of court. That is a new provision. the crime was against Jessamyn? NO. Although
the crime proven is the same, however the
If it appears at erroneous designation of the offended party deals
anytime before judgment with entirely another crime committed against a
that a mistake has been different person.
made in charging the
proper offense, the court Q: What should the court do in that case?
shall dismiss the original A: Following Section 14, the fiscal should file
complaint or information a new information almost exactly the same as the
upon the filing of a new old one, now the offended party is Lyle. The court
one charging the proper will now dismiss the original charge which is
offense in accordance with entirely different.
section 19, Rule 119,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 35

only as to form, there is no

Q: What do you call that? need for another preliminary
A: SUBSTITUTION of complaint or investigation and the retaking
information. of the plea of the accused; in
SUBSTITUTION of information,
Q: Now, how do you distinguish substitution of another preliminary
information from amendment of information? investigation is entailed and the
A: The case of accused has to plead anew to
the new information; and

4. An AMENDED information
TEEHANKEE JR. vs. MADAYAG refers to the same offense
charged in the original
207 SCRA 134
information or to an offense
which necessarily includes or is
FACTS: This case was about the necessarily included in the
murder of Maureen Hultman. She was original charge, hence
shot but did not die immediately. So substantial amendments to the
the crime charged was frustrated information after the plea has
murder. But while the case was been taken cannot be made
pending, Hultman died. Therefore, the over the objection of the
fiscal filed a new information for accused, for if the original
consummated murder. information would be
withdrawn, the accused could,
ISSUE: Distinguish amendment of invoke double jeopardy. On the
information from substitution of other hand, SUBSTITUTION
information? [This would be clearer requires or presupposes that
when we reach Rule 112 on the new information involves a
Preliminary Investigation] different offense which does
not include or is not necessarily
HELD: The first paragraph included in the original charge,
provides the rules for amendment of hence the accused cannot
the information or complaint, while the claim double jeopardy.
second paragraph refers to the
substitution of the information or In amendment, you are not changing the
complaint. crime. The crime is the same. Therefore, after the
It may accordingly be posited that accused has pleaded, you cannot change the
both amendment and substitution of information anymore. That is why substantial
the information may be made before or amendments can never be allowed after the plea.
after the defendant pleads, but they If this rule is violated, he will be placed in double
differ in the following respects: jeopardy because you are charging him for the
same offense or an offense necessarily included
1. AMENDMENT may involve in the original charge.
either formal or substantial
changes, while On the other hand, substitution presupposes
SUBSTITUTION necessarily that the new information or complaint involves a
involves a substantial change different offense which is not necessarily included
from the original charge; in the in the original charge. Therefore, the
accused cannot claim double jeopardy. How can
2. AMENDMENT before plea has you invoke double jeopardy in substitution when
been entered can be effected the new charge is completely different from the
without leave of court, but original charge?
SUBSTITUTION of information
must be with leave of court as I remember this was a 1992 decision. During
the original information has to the 1994 Bar exams, this was one of the
be dismissed; questions that entered into my mind. Nahulaan ko
na lalabas ito eh. (ehem!): distinguish amendment
3. Where the AMENDMENT is from substitution. Just remember the case of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 36

Teehankee Jr. vs. Madayag. I think that question In civil case we call this venue. In criminal
was only 3 points. Alright. procedure, venue is also jurisdiction. It refers to
territorial jurisdiction. So if you file a criminal case
in the wrong place, the accused could question
the jurisdiction of the court over the offense. This
is one difference between civil and criminal

(a) Subject to existing

SEC. 15. Place laws, the criminal action
where action is to be shall be instituted and
instituted. tried in the court of the
(a) Subject to existing municipality or territory
laws, the criminal action where the offense was
shall be instituted and committed or where any of
tried in the court of the its essential ingredients
municipality or territory occurred. (Section 15,
where the offense was Rule 110)
committed or where any of
its essential ingredients The word municipality here includes cities
occurred. because it could be a city. Municipality definitely
refers to a crime triable by the MTC. The word
(b) Where an offense is territory refers to a crime triable by the RTC
committed in a train, because of the provision of Section 18, BP 129
aircraft, or other public that every RTC has its own territory over which it
or private vehicle in the resides, for purposes of venue in civil cases and
course of its trip, the jurisdiction in criminal cases where the offense
criminal action shall be was committed or where any of the essential
instituted and tried in ingredients occurred.
the court of any
municipality or territory Q: Why does the law prescribes that the case
where such train, be filed or tried in the place where the crime was
aircraft, or other vehicle committed?
passed during its trip, A: The following are the reasons:
including the place of its 1. The interest of the public requires that,
departure and arrival. to secure the best results and effects
in the punishment of crimes, it is
(c) Where an offense is necessary to prosecute and punish the
committed on board a criminal in the very place, as near as
vessel in the course of may be where he committed his crime
its voyage, the criminal (MRR Co. vs. Atty. General, 20 Phil.
action shall be instituted 523);
and tried in the court of
the first port of entry or 2. As to the interest of the accused, it
of any municipality or would cause him great inconvenience
territory where the vessel in looking for witnesses and other
passed during such voyage, evidence in another place. (Beltran vs.
subject to the generally Ramos, 96 Phil. 149)
accepted principles of
international law.
(d) Crimes committed
The law says, the criminal case will be tried,
outside the Philippines
but punishable under
1. where the offense was committed; or
Article 2 of the Revised
2. where any of the essential ingredients
Penal Code shall be
cognizable by the court
where the criminal action
is first filed. (15a)
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 37

moment the car was taken in Davao, the crime

has already been consummated. It is not an
WHERE THE OFFENSE WAS COMMITTED indispensable requisite of theft that the thief carry,
more or less far away, the thing taken by him
This refers to what you call local offense. from its owner. (Duran vs. Tan, 85 Phil. 476)
What do you mean by a local offense? It is an Theft is committed by taking personal things.
offense, which is fully consummated in one place. Taking is instant. From the moment it came to y
Meaning, all the elements of the crime happened our possession, tapos na!
in that place.
Lets go to the issue of FENCING you buy
WHERE ANY OF THE ESSENTIAL stolen property. If you have known it is stolen, you
INGREDIENTS OCCURRED are liable. But take note: there can be no fencing
if there is no robbery or theft. Fencing
This refers to what text writers call the presupposes there is robbery or theft.
continuing offense where the elements occurred
in 2 or more places one element occurs here, Q: Inday stole a property in Digos. It was
the other in another place. So either one can try brought here and Maritess bought it here in
the case. The venue in this case is the choice of Davao. Maritess is now charged with fencing. Of
the prosecution. course Maritess can be charged here in Davao
City because she bought it here. But can the
And mind you, the word continuing offense crime of fencing be also filed in Digos where the
should not be confused with the concept in theft was committed on the theory that: how can
criminal law the so-called continuous crime there be fencing unless there was theft?
under Article 48 also known as delicto Therefore everything can go back to the place
continuado. Dalawang klaseng continuing crime, where the original crime was committed. Is that
eh. One of the relatives of complex crime is correct?
delicto continuado where a person performs a A: It is NOT correct because fencing is not a
series of acts but all emanating from one criminal continuing crime. It is a local offense. It is different
resolution but the issue to be resolved is: how from the crime of theft or robbery. Both crimes are
many crimes were committed by the accused? two different crime. The law on fencing does not
Yun ang tanong dun. require the accused to have participated in the
criminal design to commit, or to have been in any
Ito namang continuing offense, the question wise involved in the commission of, the crime of
here is: in which court of what place will the crime robbery or theft. Neither is the crime of robbery or
be tried? Yan! theft made to depend on an act of fencing in order
that it can be consummated. True, the object
Q: How do you define a continuing offense or property in fencing must have been previously
transitory crime? taken by means of either robbery of theft but the
A: It is a crime where the elements occur in place where the robbery or theft occurs is
several places. inconsequential.
It may not be suggested, for instance, that, in
EXAMPLE: KIDNAPPING or ABDUCTION. the crime of bigamy which presupposes a prior
The accused kidnapped Eltor in Davao City and subsisting marriage of an accused, the case
brought the Eltor in Cotabato and hidden there. should thereby be triable likewise at the place
Same thing with abduction: Karen was abducted where the prior marriage has been contracted.
in Davao City and brought in Cotabato. (People vs. De Guzman, October 5, 1993)

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

abduction as the case may be, be filed? companys head office is in Makati. Kenneth is
A: It could be filed in Davao where the victim the representative of the company assigned in
was taken or abducted, or in Cotabato were the Davao. He collects payments from customers in
victim was brought. Davao and he is supposed to remit all his
collections to Makati. Kenneth did not remit his
Q: Brod Pito took your vehicle here in Davao collections to Makati. Where should the case of
and brought it to Cotabato. Where should the estafa be brought? Davao or Makati?
crime of qualified theft be tried? Davao or A: Either of the two. The crime is continuing. It
Cotabato? Is that a continuing offense or not? shall be instituted in the place where the
A: Davao. It is a local offense. From the misappropriation was committed OR in the place
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 38

where the accused was to render his accounting. accused correct?

(U.S. vs. Mesina, 42 Phil. 67)
HELD: NO! Mali! Actually, the
Lets go to BOUNCING CHECKS law. Where crime is continuing because the crime
should the criminal case for violation of bouncing continues up to the delivery of the
checks law be filed? Sometimes, fiscals get check to the Central Luzon Office of
confused. You owe me, you are in Manila, then SMC in Pampanga. Under the
you issue a check in Manila and sent it to Davao. Negotiable Instruments Law, the
Then I will deposit the check in Davao. Of course delivery of the check must be made to
the bank will forward it to Manila for clearance. a person who takes it as a holder or
The Manila bank dishonored it kay walang bearer of the instrument. The checks
pondo. Where is the venue for such crime? That are intended to be delivered in the
is what happened in the case of Head Office because it is the delivery
in Pampanga which makes the payee
the bearer or the holder not the
PEOPLE vs. GOROSPE employer who went to Bulacan. So
tinamaan ang Pampanga court. In
January 20, 1988 effect, it is a continuing crime.
In respect of the Bouncing Checks
(reiterated in Lee vs. CA [1995]) case, it is likewise true that
knowledge on the part of the maker or
FACTS: The accused is from drawer of the check of the insufficiency
Bulacan. He was a dealer of San of his funds, which is an essential
Miguel products and he is under the ingredient of the offense is by itself a
control of the Central Luzon Regional continuing eventuality, whether the
Office of San Miguel Corporation accused be within one territory or
(SMC) which is in San Fernando, another. Accordingly, jurisdiction to
Pampanga. So a representative of take cognizance of the offense also
SMC went to Bulucan, collected from lies in the Regional Trial Court of
him, he issued checks which were Pampanga. Meaning, wherever the
drawn in Bulucan. The checks were checks go, the knowledge of
received by the representative of SMC insufficiency is a continuing element.
and went to the Head Office in
Pampanga and turned-over it. The Q: Where shall the criminal action for
Pampanga office of SMC deposited FALSIFICATION of a private document be filed?
the checks with its depositary bank in A: It shall be filed in the place where the
San Fernando, Pampanga. The document was falsified, regardless of whether it
checks were sent to Bulacan for was or was not put to the illegal use for which it
clearing. Talbog! With this, series of was intended. (U.S. vs. Barretto, 36 Phil. 204)
cases were filed. Some cases were
estafa. Some were for violation of BP Q: Genie executed a false affidavit in Manila.
22. It was sent to Davao to be used in a certain
The accused challenged it proceeding or case. Where is the venue of the
because all these cases were filed in PERJURY?
San Fernando, Pampanga eh. A: It should be filed in the place where the
According to him, the cases should be false evidence was submitted and NOT in the
filed in Bulacan. Remember, the place where the false affidavit was subscribed
checks were Bulucan checks and it and sworn to. (U.S. vs. Caete, 30 Phil. 371)
was dishonored also in Bulacan. He
said, I did not deliver it in San Lets go to some EXCEPTIONS:
Fernando. I gave it to your
representative. So the check was Q: Are there instances where the crime is
delivered to a representative. So the committed in this place but the trial can be filed in
delivery was made in Bulacan. Thus another place, other than the place where the
the Pampanga court has no crime was committed?
jurisdiction. A: YES, if the law says so because of the
opening clause of paragraph (a) of Section 15
ISSUE: Is the contention of the which says, subject to existing laws. Meaning,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 39

this is the applicable rule unless other existing law 2. there is no waiver. The offended party
says otherwise. should not waive the civil liability;
3. the offended party should not have
Q: Give instances where the crime maybe reserved to file a separate civil action
committed in one place but the law provided for a because once you have made a
different venue of trial. reservation, wala na. You cannot
A: The following: anymore hire a private prosecutor;
1. Libel under Article 360 of RPC, it is 4. the civil action has not been previously
to be filed where the libelous matter instituted because if the civil action is
was printed or first published, or where already filed, you cannot intervene in
the injured party resides or where he the criminal case.
holds office;
Q: What are the rights of the offended party in
2. Sandiganbayan Law cases falling a criminal action?
under the jurisdiction of the A: The following:
Sandiganbayan are tried in designated 1. to take part in the prosecution of the
places; offense;
2. to recover civil liability from the
3. Section 5 (4), Article VIII, 1987 accused arising from the crime; and
Constitution The SC may order a 3. to appeal from any judgment or order
change of venue or place of trial to adversely affecting his claim to such
avoid a miscarriage of justice as what civil liability. (People vs. Velez, 77 Phil.
happened in the case of Sanchez and 1026)
Q: Give the limitations to the offended partys
Those are the exceptions. All the rest covers right of intervention in a criminal action.
other cases Paragraph (d) refers to crimes A: The following:
committed on board a Philippine ship or airplane
abroad. It is triable in the Philippines. Where in 1. such intervention shall be under the
the Philippines? where the criminal action is first direction and control of the fiscal
filed. Kung saan, mamili ang prosecution kung (Section 5);
saan i-file. 2. such intervention shall only be for the
purpose of enforcing the accuseds
SEC. 16. civil liability arising from the crime.
(People vs. Velez, supra)
Intervention of the
offended party in criminal
action. One of the interesting case decided based on
Where the civil action Section 16 is the 1987 case of
for recovery of civil
liability is instituted in BANAL vs. TADEO, JR.
the criminal action
156 SCRA 325
pursuant to Rule 111, the
offended party may
FACTS: This is a case for violation
intervene by counsel in
of BP 22. The offended party hired a
the prosecution of the
offense. (16a) private prosecutor to prosecute the
case. The accused challenged the
appearance of the private prosecutor
Of course, the prosecution is under the control
on the ground that BP 22 does not
of the fiscal but the law says, the private offended
provide for any civil liability and
party can intervene through counsel. That is what
therefore there is no civil liability.
you call the appearance of the private prosecutor.
So the trial court disqualified the
private prosecutor. The offended party
Q: When is it allowed?
went to the SC.
A: The following are the requirements:
1. if there is civil liability arising from the
ISSUE: Is a private prosecutor
crime because the purpose of the
allowed to intervene in a BP 22 case?
private prosecutor is to protect the civil
liability of the offended party;
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 40

HELD: YES. A private prosecutor person is sentenced to pay forms an

is allowed to intervene in a BP 22 case integral part of the penalty imposed by
because there is a civil liability in BP law for the commission of a crime.
22 even if the law silent about it. Every crime gives rise to a penal or
Normally lawyers would say that criminal action for the punishment of
civil liability in a criminal case arises the guilty party, and also to civil action
from the crime; because of the crime, for the restitution of the thing, repair of
there is civil liability. According to the the damage, and indemnification for
SC: WRONG!! It is not the crime which the losses.
is the source of the civil liability. It is
the damage that the accused caused The ruling in Banal seems not to jive with
to the victim! Article 1157 of the New Civil Code. Under Article
The generally accepted notion 1157, the following are the sources of obligations:
that the civil liability actually arises 1. laws;
from the crime a misconception or 2. contracts;
fallacy. [Masyadong malalim ang 3. quasi-contracts;
discussion ng SC dito] While an act or 4. quasi-delicts;
omission is felonious because it is 5. acts or omissions punishable by law.
punishable by law, it gives rise to civil
liability not so much because it is a According to Article 1157, a crime punishable
crime but because it caused damage by law is a source of obligation. But in the case of
to another. Viewing things Banal, the SC says NO, it is not the act or
pragmatically, we can readily see that omission but the damage or injury resulting from
what gives rise to the civil liability is such act or omission. That is how to reconcile
really the obligation and the moral duty these two ideas.
of everyone to repair or make whole
the damage caused to another by Q: We will go back to the issue in Banal is
reason of his own act or omission, there civil liability in BP 22 cases?
done intentionally or negligently, A: YES because the offended party cannot
whether or not the same be get back his money. If there is damage, there is
punishable by law. In other words, civil liability even if the law is silent. Huwag mo na
criminal liability will give rise to civil lang hanapin ang provision ng civil liability. For as
liability only if the same felonious act long as there is damage, there is civil liability.
or omission results in damage or injury Yaaann!
to another and is the direct and
proximate cause thereof. Damage or
injury to another is evidently the
foundation of the civil action. Such is
not the case in criminal actions for, to
be criminally liable, it is enough that Rule 111
the act or omission complained of is PROSECUTION OF CIVIL CASES
punishable, regardless of whether or
not it also causes material damage to
another. Article 20 of the New Civil SECTION 1. Institution
Code provides: of criminal and civil
Every person who, actions. (a) When a
contrary to law, willfully criminal action is
or negligently causes instituted, the civil
damage to another, action for the recovery of
shall indemnify the civil liability arising
latter for the same. from the offense charged
Regardless, therefore, of whether shall be deemed instituted
or not a special law so provides, with the criminal action
indemnification of the offended party unless the offended party
may be had on account of the waives the civil action,
damage, loss or injury directly suffered reserves the right to
as a consequence of the wrongful act institute it separately or
of another. The indemnity which a institutes the civil
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 41

action prior to the Upon filing of the

criminal action. aforesaid joint criminal
The reservation of the and civil actions, the
right to institute offended party shall pay
separately the civil in full the filing fees
action shall be made based on the amount of the
before the prosecution check involved, which
starts presenting its shall be considered as the
evidence and under actual damages claimed.
circumstances affording Where the complaint or
the offended party a information also seeks to
reasonable opportunity to recover liquidated, moral,
make such reservation. nominal, temperate or
When the offended party exemplary damages, the
seeks to enforce civil offended party shall pay
liability against the additional filing fees
accused by way of moral, based on the amounts
nominal, temperate, or alleged therein. If the
exemplary damages without amounts are not so alleged
specifying the amount but any of these damages
thereof in the complaint are subsequently awarded
or information, the filing by the court, the filing
fees therefore shall fees based on the amount
constitute a first lien on awarded shall constitute a
the judgment awarding such first lien on the
damages. judgment.
Where the amount of Where the civil action
damages, other than has been filed separately
actual, is specified in and trial thereof has not
the complaint or yet commenced, it may be
information, the consolidated with the
corresponding filing fees criminal action upon
shall be paid by the application with the court
offended party upon the trying the latter case. If
filing thereof in court. the application is
Except as otherwise granted, the trial of both
provided in these Rules, actions shall proceed in
no filing fees shall be accordance with section 2
required for actual of this Rule governing
damages. consolidation of the civil
No counterclaim, cross- and criminal actions.
claim or third-party (cir. 57-97)
complaint may be filed by
the accused in the We will now go to Rule 111. This rule has
criminal case, but any been subjected to many amendments although
cause of action which the amendments may not be very radical. As a
could have been the
matter of fact, they only incorporate
subject thereof may be
litigated in a separate jurisprudence or principles laid down in decided
civil action. (1a) cases. The main principle is: when a criminal action
(b) The criminal action is filed, the civil action of the recovery of the civil
for violation of Batas liability arising from the offense charged is
Pambansa Blg. 22 shall be deemed instituted with the criminal action.
deemed to include the
corresponding civil What is the basis for that principle? The basis
action. No reservation to is Article 100 of the RPC, Every person
file such civil action criminally liable is also civilly liable. When you
separately shall be
say deemed instituted, it does not only cover the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 42

civil liability of the accused himself but also the In 1982, five-year old Roy Camaso, while
probable subsidiary civil liability of the employer standing on the sidewalk of M. de la Fuente
under Article 103. You already knew of that rule
Street, Sampaloc, Manila, was sideswiped by
that when an employee-accused is adjudged
criminally liable and is insolvent, the employer of motorcycle owned by Yakult Philippines and
that accused who committed the crime while he driven by its employee, Larry Salvado. The
was in the discharge of his duties will be the one latter was charged with the crime of reckless
to answer the civil liability. That is why the SC imprudence resulting to slight physical injuries
said that whether he likes it or not, he is covered. in an information that was filed with the then
It is advisable for the employer in that situation to City Court of Manila. In 1984, a complaint for
help his employee in the criminal case because he
damages was filed by Roy Camaso represented
will also be prejudiced if his employee will be
convicted. To borrow the language of the SC, by his father, David Camaso, against Yakult and
whether he likes it or not, he is a forced intervenor Salvado in RTC Manila. A decision was
in the criminal case filed against his employee. rendered in the civil case ordering defendants
Yakult and Salvado to pay jointly and severally
Q: When is a civil action arising from a crime the plaintiff sums for actual expenses for
NOT deemed instituted with the criminal action?
medical services and hospital bills, attorneys
A: The civil action is NOT deemed instituted
with the criminal action: fees and the costs of the suit.
1. when the offended party has waived
the civil aspect of the case; FACTS: In a criminal case, the
2. when the offended party has reserved offended party did not make a
his right to file a separate civil action; reservation but there is still no trial.
or However, without making a
3. when the civil action was filed or reservation, the offended party filed a
instituted ahead of the criminal action. civil action. After such filing, the
4. when the crime is one to which no offended party told the court trying
civil liability attaches. (People vs. the criminal case, that he has already
Maceda, 73 Phil. 679) filed a separate civil case so that the
5. when the civil action was filed in court court will not include anymore the
before the presentation of the evidence civil aspect.
for the prosecution in the criminal
action of which the judge presiding on ISSUE: Is there a proper filing of
the criminal cases was duly informed. the civil action without making a
(Yakult Phils. vs. CA, 190 SCRA 357); reservation? Was the civil action filed
ahead of the criminal case?
According to the second paragraph, the
reservation must be made before the prosecution HELD: NO. However, there is no
starts presenting its evidence and under question that after filing the civil case
circumstances affording the offended party he told the court that he already filed a
reasonable opportunity. Before the trial, separate civil action and that is even a
kailangan mag-reserve na siya. Otherwise the better reservation. In effect, there was
court will consider the civil aspect deemed an automatic reservation although
instituted. normally, reservation is done before
the filing of the criminal case. Ito
naman, filing before he informed the
OF APPEALS In this case, the offended party has not
190 SCRA 357 (1990) waived the civil action, nor reserved the right to
institute it separately. Neither has the offended
party instituted the civil action prior to the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 43

criminal action. However, the civil action in filing of the information. But whether alleged in
this case was filed in court before the the information or not, you can claim for actual
damages and there is no docket fee for actual
presentation of the evidence for the prosecution
damages except in cases under BP 22. That is the
in the criminal action of which the judge exception which is now embodied in Section 1
presiding on the criminal case was duly paragraph [b] which was take from SC circular
informed, so that in the disposition of the 57-97 there is no payment of docket fee for
criminal action no damages was awarded. actual damages except in criminal cases for
violation of BP 22 because paragraph [b] says:
Q: Has the offended party has the right to
claim and prove damages in the criminal action Upon filing of the
where the complaint or information is silent as to aforesaid joint criminal
such claim? and civil actions, the
offended party shall pay
A: Every person criminally liable is also civilly
in full the filing fees
liable. Therefore, even if the complaint or based on the amount of the
information is silent as to damages, the offended check involved, which
party has the right to claim and prove them in the shall be considered as the
criminal case, unless a waiver or a reservation of actual damages claimed.
the civil action is made. (People vs. Rodriguez,
July 29, 1959; Roa vs. dela Cruz, Feb. 13, 1960) Now, take note of the ruling in the case of
Cabaero vs. Cantos mentioned in civil procedure
So it is possible for the information to recite which is now incorporated in the last paragraph
the claim for civil liability or hindi na kailangan. of Section 1, paragraph [a]:
The only difference is: if the information
mentions the claim of the civil liability, the No counterclaim, cross-
offended party is required to pay the docket fee claim or third-party
provided the docket fee is only for any claims for complaint may be filed by
moral, exemplary and nominal damages. There is no the accused in the
docket fee for actual damages. criminal case, but any
cause of action which
could have been the
Q: Suppose there was no mention of any subject thereof may be
claim for moral or exemplary damages, can he litigated in a separate
still prove them during the trial? YES. But he did civil action.
not pay docket fee?
A: Never mind, once it is awarded, there is Thats the Cabaero case which reversed Javier
now a lien in the judgment for the payment of the vs. IAC, (171 SCRA 376) and Shaffer vs. RTC, (167
docket fee. SCRA 376).

So there is a difference in the rule in docket SEC. 2. When separate

fee in civil and criminal cases. Remember the case civil action is suspended.
of Sun Insurance in civil procedure? If the docket After the criminal
fee was not mentioned in the complaint in the action has been commenced,
civil case they are deemed waived. You must pay the separate civil action
the docket fee at the start of the case though if it is arising therefrom cannot
not mentioned, you are given the chance to be instituted until final
judgment has been entered
complete the payment or amend the complaint
in the criminal action.
within reasonable time. In criminal cases, even if If the criminal action
there is no mention of damages in the is filed after the said
information, you can still prove and claim them civil action has already
as long as there is no waiver or reservation. been instituted, the
latter shall be suspended
So in criminal cases, if the claim for moral or in whatever state it may
exemplary damages is mentioned in the be found before judgment
information, you must pay the docket fee upon on the merits. The
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 44

suspension shall last outcome of the criminal case. The criminal case
until final judgment is enjoys priority.
rendered in the criminal
action. Nevertheless, The reason here is that there might be an
before judgment on the
embarrassment in the administration of justice.
merits rendered in the
civil action, the same You allowed the filing of the civil and criminal
may, upon motion of the cases together. Same evidence, same incident. In
offended party, be the criminal case, the accused was convicted but
consolidated with the in the civil case the claim for damages was
criminal action in the dismissed because the offended party failed to
court trying the criminal proved his claim by preponderance of evidence.
action. In case of That is something absurd!
consolidation, the
evidence already adduced So the best thing is unahin muna ang criminal
in the civil action shall
case because anyway if there is an acquittal in the
be deemed automatically
reproduced in the criminal criminal case, you can still recover in the civil
action without prejudice case because it is only a preponderance of
to the right of the evidence, or the accused may be acquitted by
prosecution to cross- reason of an exempting circumstance and yet it
examine the witness does not exempt him from civil liability in
presented by the offended another civil action.
party in the criminal case
and of the parties to Take note that what is suspended is the civil
present additional action arising from the criminal act. (opening
evidence. The consolidated paragraph of Section 2; Article 1157, New Civil
criminal and civil actions
shall be tried and decided
During the pendency of Q: What happens if na-una na-file yung civil
the criminal action, the action?
running period of A: According to Section 2, from the moment
prescription of the civil the criminal case is filed, the trial of the civil case
action which cannot be is suspended to wait for the outcome of the
instituted separately or criminal case.
whose proceeding has been
suspended shall be tolled. Q: Is this prejudicial to the offended party?
A: There is a way out according to Section 2.
The extinction of the
penal action does not The first thing for him to do is to file a petition to
carry with it extinction consolidate the trial of the criminal and civil case
of the civil action. for them to be tried together and the evidence
However, the civil action already presented in the civil case is deemed
based on delict shall be automatically reproduced in the criminal case.
deemed extinguished if This is what you call the consolidation of the civil
there is a finding in a and criminal action under Section 2.
final judgment in the
criminal action that the Q: Is this consolidation mandatory?
act or omission from which
A: NO. It is permissive. Actually, the offended
the civil liability may
arise did not exist. (2a) party is the one to initiate this because if not, then
he has to wait for the criminal case to be
terminated before he can file the civil case.
Lets go to Section 2. Suppose the offended
party made a reservation to institute a civil action Q: What are the instances when the offended
and a criminal case is filed, he cannot file the civil party is not allowed to make a reservation
action thats the rule. He must wait for the therefore requires a mandatory consolidation?
A: The following are the instances:
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 45

present additional
1. Violations of BP 22. (Paragraph b, evidence. x x x
Section 1, Rule 111);
2. Libel under Article 360, RPC; What is new here is the phrase without
3. Mandatory consolidation under the prejudice to the right of the prosecution to cross-
Sandiganbayan law. For example, a examine the witnesses presented by the offended party
criminal case is supposed to be tried in the criminal case I was wondering, there is
by the SB and then you file a civil case something wrong here. I believe there is a
before the ordinary courts. What will typographical error here. Di ba the witnesses of
happen now to the civil case? The law the offended party in the civil case are also the
says there must be a mandatory witnesses of the prosecution in the criminal case?
consolidation of both cases in the SB. I was wondering why will the fiscal cross-
examine his witnesses? I think the phrase really
Q: What happens if the filing of the civil means the witnesses presented by the accused.
action will have to wait for the outcome of the
criminal case, baka nag-prescribed na yung civil Lets go to some decided cases.
A: Read 3rd paragraph of Section 2:
115 SCRA 843
During the pendency of
the criminal action, the FACTS: The case of Caos was
running period of decided before the 1985 Rules. Here,
prescription of the civil there was reservation. There were two
action which cannot be (2) cases arising out of the same
instituted separately or incident. At that time, there was still
whose proceeding has been no specific rule on consolidation.
suspended shall be tolled. Judge Peralta ordered the
(n) consolidation of the criminal and civil
cases and that was questioned.
Ayun! The running of the prescriptive period
shall be suspended. This was the doctrine in the ISSUE: Was the consolidation
case of People vs. Bayotas. proper? If so, how do you reconcile
these cases because the degree of proof
There is something new in the 2nd paragraph in the criminal case is not the same in
about consolidation. When the civil case is filed the civil case?
ahead, the filing of the criminal case will suspend
the civil unless there is a petition to consolidate in HELD: The consolidation was
which case the evidence presented in the civil proper under Rule 31 because there is
case is automatically considered reproduced in a common question of fact and law.
the criminal case. Now read this part, third They can be consolidated but for
paragraph of Section 2: purposes of decision, the court will
now apply two (2) different criteria:
x x x In case of Proof beyond reasonable doubt in the
consolidation, the
criminal case and preponderance of
evidence already adduced
in the civil action shall evidence in the civil case. So there is
be deemed automatically no incompatibility.
reproduced in the criminal
action without prejudice Now, here comes the 1985 Rules on
to the right of the consolidation and one of the first cases which
prosecution to cross- reached the SC involving the new Rules was the
examine the witness case of Naguiat.
presented by the offended
party in the criminal case
and of the parties to NAGUIAT vs. IAC
164 SCRA 505
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based on delict shall be

FACTS: Naguiat filed a case deemed extinguished if
against a subdivision development there is a finding in a
corporation where he bought a lot in final judgment in the
criminal action that the
installment basis. Under the
act or omission from which
subdivision law kapag bayad na, you the civil liability may
issue the title. But according to arise did not exist. (2a)
Naguiat, bayad na pero hindi binigay (Last paragraph, Section
yung title. So he filed a case for 2, Rule 111)
specific performance with damages
against the subdivision and he also Yan! If the accused is acquitted, it will not bar
filed a criminal case against the the offended party from filing a civil action
president of the corporation for failure because the extinction of the penal action does
to deliver to him the title of the land not carry with it the extinction of the civil action
under PD 957. Now, he filed a motion because for all you know in the civil case the
to consolidate under Rule 111. accused may be found liable.

ISSUE: Is the motion to It is now emphasized in the new rules

consolidate proper? however, the civil action based on delict shall be
deemed extinguished if there is a finding in a final
HELD: NO. They cannot be judgment in the criminal action that the act or
consolidated under Rule 111 because omission from which the civil liability may arise did
what can be consolidated is a criminal not exist. This means that if the accused is
case together with a civil case for acquitted based on reasonable doubt, there could
damages from the crime committed. In still be civil liability arising from the crime or
other words, damages ex delicto. But when the accused is acquitted based on an
here, the criminal case was filed exempting circumstance. But when the accused is
against the officers of the corporation acquitted on the ground that the act or omission
for damages and a civil case for from which the civil liability may arise did not
specific performance was also filed exist, that is the end of the civil liability arising
against the same officers. That civil from a crime.
case arose from a contract, i.e. ex
contractu. [So if the civil case arose Q: However, if I file an action based on quasi-
from a contract, it cannot be delict, can it prosper?
consolidated with the criminal case A: YES, because it is now established that the
under Rule 111.] action based on delict is extinguished but not on
But because it cannot be denied quasi-delict, a contract, or other sources of
that it would be better if we try them obligation. This is the ruling in the case of Bayotas
together because we are talking of the in criminal law that, for example, once the
same incident failure to deliver the accused dies, the civil liability arising from crime
title why not consolidate the two is already extinguished but you can still file a case
cases under Rule 31, citing the case of against the estate of the deceased accused provided
Caos vs. Peralta. In that case, the only you can find another source of the obligation.
ground was there was a common This ruling was emphasized in the 1998 case of
question of fact and law so they
should be consolidated under Rule 31
284 SCRA 493, January 22, 1998

The extinction of the HELD: The civil liability referred

penal action does not to in this Rule is the civil liability
carry with it extinction arising from crime (ex delicto). It is not
of the civil action. the civil liability for quasi-delict which
However, the civil action is allowed to be brought separately
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 47

and independently of the criminal conviction against the employee; it

action by Art. 33 of the Civil Code. The must be final; he must be proven
civil liability based on such cause of insolvent. But the trouble is he died.
action is not extinguished even by a So you cannot enforce the subsidiary
declaration in the criminal case that liability of the employer.
the criminal act charged has not However, if this was quasi-delict,
happened or has not been committed you can file a direct action against he
by the accused. Indeed, because the employer because in quasi-delict, the
offended party does not intervene in liability of the employer is primary,
the criminal prosecution, it is entirely not subsidiary. The SC treated the case
possible that all the witnesses as an action for quasi-delict against the
presented in the civil action may not employer but that is unfair for the
have been presented by the public employer because he never
prosecutor in the criminal action with participated in the trial of the civil
the result that the accused in the case. According to the SC, we will put
criminal case may be acquitted. it back and now you will cross-
examine them (Dean I: Anong klaseng
procedure ito?!). This is what the SC
So remember ha, in the case of Salao the said:
offended party has no intervention in the criminal The death of the accused during
case. He does not know how the public the pendency of his appeal or before
prosecutor handled the case, baka ang testigo the judgment of conviction became
kulang kaya na-acquit. So paano ako (offended final and executory extinguished his
party)? I will file my own civil case and maybe I criminal liability but not his civil
will use quasi-delict as the basis and no longer liability should the liability or
the delict. obligation arise not from a crime but
from a quasi-delict. The liability of the
These are the complicated portion of this rule. employer here would not be
As a matter of fact, there are queer cases decided subsidiary but solidary with his driver
by the SC even before the new rules like the 1987 unless said employer can prove there
case of was no negligence on his part at all,
that is, if he can prove due diligence in
RUFO MAURICIO the selection and supervision of his
November 27, 1987 Inasmuch as the employer was
not a party in the criminal case, and to
FACTS: A driver of the grant him his day in court for the
construction company collided with a purpose of cross-examining the
car, killing the owner. What was filed prosecution witnesses on their
was a criminal case against the driver. testimonies on the driver's alleged
No reservation was made. Therefore negligence and the amount of
the civil liability arising from the crime damages to which the heirs of the
is already instituted. The driver was victim are entitled, as well as to
convicted. On appeal, the driver died. introduce any evidence or witnesses
he may care to present in his defense,
ISSUE: What will happen to the the hearing on the motion to quash the
civil liability arising from the crime? subsidiary writ of execution must be
Can you enforce it against the reopened precisely for the purpose
employer based on Article 103, RPC adverted to hereinabove.
on subsidiary liability?
This is the only instance I knew that the
HELD: NO, because there was no criminal case against a driver ended up as a case
judgment of conviction which became for quasi-delict against the employer. In other
final. There must be a judgment of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 48

words, sh-in-ort-cut-short-cut ng SC yung right. Article 33 is the most famous when the
procedure eh! civil action is defamation, fraud and physical

SEC. 3. When civil Here (Section 3), the criminal action and the
action may proceed civil action can be filed simultaneously and the
independently. In the trial of the two cases can go on separately and
cases provided in Articles independently of the other without regard to the
32, 33, 34 and 2176 of the
latter. Unlike when the civil action is not
Civil Code of the
Philippines, the classified as independent, where it is governed by
independent civil action Section 2, it will be suspended in the meantime.
may be brought by the That is the important point to remember in this
offended party. It shall rule.
proceed independently of
the criminal action and
shall require only a COJUANGCO, JR. vs. COURT OF APPEALS
preponderance of evidence. 203 SCRA 629
In no case, however, may
the offended party recover FACTS: In this case, there was an
damages twice for the same independent civil action for recovery
act or omission charged in of civil liability arising from
the criminal action. (3a) defamation filed by Cojuangco against
a media company. So there were two
Lets go back to basic rules. (2) cases a criminal action for libel
under the RPC and a civil case for
Q: Which takes precedence when there is damages arising from defamation
reservation, the criminal or the civil action? under Article 33 of the Civil Code. The
A: The criminal action takes precedence. The question is: can the two cases be
filing of the criminal suspends the filing of the consolidated under Section 2?
civil action. If the civil action is filed, the civil because one argument is you only
action is deemed suspended unless there would consolidate the civil action if it is not
be consolidation. independent action. But anyway,
independent man ito why will
Now, the rule about the filing of the criminal consolidate?
action will suspend the filing of the civil action,
and the rule about the subsequent filing of the ISSUE: May a civil action for
criminal action will suspend the trial of the civil damages arising from defamation
case, however, DOES NOT apply if the civil (independent civil action) and the
action is classified as an independent civil action criminal case for libel be consolidated?
under Section 3. This is another important
provision. HELD: YES, they can be
consolidated under Rule 31 of the
Q: What are the independent civil actions Rules of Court, citing again the case of
under the law? Caos vs. Peralta, because there is a
A: They are those covered by Articles 32, 33, common question of law and fact.
34, and 2176 of the New Civil Code. Section 1, Rule 31 of the Rules of
Court authorizes consolidation of
Take note that you have to know what is actions involving common questions
Article 32, 33, 34, 2176. It is not enough that you of law or fact pending before the court.
memorize the articles. What is Article 32 all The purpose or object of consolidation
about? What kind of civil action is referred is to avoid multiplicity of suits, guard
thereto? Or what is the civil action referred to in against oppression or abuse, prevent
Article 34? I think nandito yung when the civil delay, clear congested dockets,
action is based on a violation of a constitutional simplify the work of the trial court,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 49

and save unnecessary costs or proceed independently. So in the instructive

expense; in short, the attainment of case of MANIAGO VS. CA, (253 SCRA 674) as
justice with the least expense and well as the case of SAN ILDEFONSO VS. CA, (289
vexation to the parties litigants. This SCRA 568), the SC ruled that there is still a need,
provision applies to both civil and whether a civil action is independent or not, to
criminal actions. The case Caos had make a reservation, otherwise the civil action is
removed any doubt on this point. [So deemed instituted.
even if we disregard Rule 111 Section
2, it can be consolidated under Rule NOW, you will notice in Section 3 of the new
31] rules, that phrase which has been reserved is
There is yet a further deleted. So based on the language of the new
consideration why in the instant case rules, babalik na naman tayo sa FLORIDO and
consolidation of civil case and the MARABE ruling, that an independent civil action
criminal case should be allowed. What NEED NOT BE RESERVED. Therefore, the ruling
is involved is the crime of libel. As in the MANIAGO and SAN ILDEFONSO cases is
correctly stated by petitioners, per the deemed abandoned by the SC.
third paragraph of Article 360 of the
Revised Penal Code, as amended, the
criminal case for libel and the civil SEC. 4. Effect of death
action for damages arising therefrom on civil actions. The
must be filed in the same court. death of the accused after
In other words, if there is a second arraignment and during the
pendency of the criminal
reason why consolidation should be
action shall extinguish
allowed, that reason is Article 360 of the civil liability
the RPC on libel. While there maybe 2 arising from the delict.
separate actions in libel damages and However, the independent
criminal case Article 360 orders the civil action instituted
consolidation of the two. That is under section 3 of this
mandated under Article 360. Rule or which thereafter
is instituted to enforce
The next question is: Suppose I will file an liability arising from
independent civil action, do I have to make a other sources of
obligation may be
reservation? The civil action specified is an
continued against the
independent one. Take note that under Section 1, estate or legal
when you file a criminal case without making a representative of the
reservation, the civil action is already deemed accused after proper
instituted unless you make a reservation. substitution or against
said estate, as the case
There were some confusions on that point may be. The heirs of the
because in the old cases of GARCIA VS. FLORIDO accused may be substituted
(52 SCRA), ABELLANA VS. MARABE (57 SCRA), for the deceased without
the SC implied that when the civil action is requiring the appointment
independent, there is no need to make a of an executor or
administrator and the
reservation. That is an implication because it is
court may appoint a
independent why should its filing be dependent guardian ad litem for the
on reservation? minor heirs.
The court shall
However, the 1985 Rules on criminal forthwith order said legal
procedure made reservation mandatory even in representative or
independent civil actions. Section 3 of the 1985 representatives to appear
Rules says, in the cases provided in Articles 32, and be substituted within
33, 34 and 2176 of the Civil Code, the a period of thirty (30)
independent civil action which has been reserved days from notice.
may be brought by the offended party, shall
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 50

A final judgment Q: Last paragraph. In case before

entered in favor of the arraignment, namatay wala na! the criminal
offended party shall be liability is extinguished. What happens now to
enforced in the manner any possible civil action which the offended party
especially provided in
may file?
these rules for
prosecuting claims against A: He can file it against the estate of the
the estate of the deceased but the assumption is, it is based on
deceased. quasi-delict or any other sources of obligation
If the accused dies other than the crime.
before arraignment, the
case shall be dismissed
without prejudice to any SEC. 5. Judgment in
civil action the offended civil action not a bar.
party may file against the A final judgment rendered
estate of the deceased. in a civil action
(n) absolving the defendant
from civil liability is
Section 4 is entirely new. The first sentence is not a bar to a criminal
enunciated in the case of Bayotas the death of action against the
the accused after arraignment and during the defendant for the same act
pendency of the criminal action shall extinguish or omission subject of the
civil action. (4a)
the civil liability arising from the delict the civil
liability arising from the crime is deemed
Section 5 is the exact opposite of Section 2
extinguished which you have taken up already in
because the last paragraph of Section 2 says the
criminal law. However, the independent civil
extinction of the penal action does not carry with
action instituted under Section 3 of this Rule or
it the extinction of the civil action. Itong Section
which thereafter is instituted to enforce liability
5 naman, baliktad! the extinction of civil action.
arising from other sources meaning, another
Is the criminal action also extinguished? NO. A
source other than the delict may be continued
final judgment rendered in a civil action
against the estate or legal representative of the
absolving the defendant from civil liability is not
accused after proper substitution as the case may
a bar to a criminal action against the defendant.
Now, what is new here is the last clause for
Balik na naman tayo sa civil procedure nito.
the same act or omission subject of the civil
The action survives there will be substitution.
action because for all you know, the evidence
This is actually a repetition of civil procedure
submitted in civil case might be incomplete and
the heirs of the accused maybe substituted for the
the government has better evidence in the
deceased without requiring the appointment of an
executor or administrator and the court may appoint a criminal action.
guardian That is a repetition of Rule 3, about
substitution of a party. But the civil action here
SEC 6. Suspension by
refers to a civil action where the source of a claim
reason of prejudicial
is not a crime, wala na eh, extinguished na kaya it question. A petition for
could be a contract or a quasi-delict. suspension of the criminal
action based upon the
Q: On the third paragraph, assuming there is pendency of a prejudicial
a judgment. How will you enforce it? By question in a civil action
execution? may be filed in the office
A: NO. You must file it as a claim against he of the prosecutor or the
estate. As a rule, there is no execution. All the court conducting the
creditors mush share equally with the assets. That preliminary investigation.
When the criminal action
is Special Proceedings: what claims must be filed
has been filed in court
against the estate of the deceased? for trial, the petition to
suspend shall be filed in
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 51

the same criminal action Q: What will happen to the criminal case filed
at any time before the in the court?
prosecution rests. (6a) A: It will be suspended. The accused will have
to file a motion for the suspension of the
SEC. 7. Elements of
prejudicial question.
The elements of a
prejudicial questions are: For example, Rod is accused of bigamy for
(a) the previously marrying twice. However, there is a civil case also
instituted civil action pending where the issue is whether his first
involves an issue similar marriage is valid or not. Kung valid yon, patay
or intimately related to ka! bigamy! Kung void naman yun, there is no
the issue raised in the bigamy.
subsequent criminal
action, and (b) the
resolution of such issue
determines whether or not PEOPLE vs. ARAGON
the criminal action may 94 Phil. 357
proceed. (5a)
FACTS: Pches contracted a second
The concept of prejudicial question is the exact marriage with Cholo, a married man.
opposite of Section 2 because in Section 2, unless The latter subsequently married Thea,
independent civil action, the filing of the criminal the second girl. Cholo was prosecuted
action will cause the suspension of the civil for bigamy. Thea, the second wife filed
action. Ito naman, baliktad the filing of the civil an action to declare her marriage as
case will suspend the criminal case that is, if defective because of the force
there is a prejudicial question involved in the civil employed against her by Cholo. And,
case. even if his first marriage is not valid,
sabi niya (Thea), yung akin ay
Q: What is a prejudicial question? voidable pa rin because my consent
A: A prejudicial question is that arising in the was secured through force or
civil case but which is so intimately connected intimidation.
with the issues involved in the criminal case as to Sabi naman ni Cholo, kung ganun,
be determinative of the innocence or guilt of the it is prejudicial. We will have to wait
accused. (Mendiola vs. Macadaeg, February 27, for the result of that case filed by the
1961) second wife (Thea) whether really I
used force or intimidation to get her
So the resolution of the civil action will consent. So the case of bigamy should
determine the guilt or innocence of the accused in not be tried.
the criminal case. The guilt or innocence of the
accused will depend on the outcome of the issue HELD: Cholo is wrong because it
in the civil case kaya paunahin natin ang civil. was him, who is accused of bigamy,
who employed the force. Cholo cannot
Q: How do you determine whether a question use his own malfeasance to defeat the
is prejudicial? action based on the criminal act. Ikaw
A: The elements of a prejudicial question are and nag-gawa ng force tapos you use
found in Section 7: the force to suspend the criminal case?
1. the previously instituted civil action Di puwede yan! There is something
involves an issue similar or intimately wrong in that situation.
related to the issue raised in the
subsequent criminal action, and
2. the resolution of such issue determines But assuming it is Thea who is accused of
whether or not the criminal action bigamy for contracting a second marriage with
may proceed. the man. And the woman says, It is true pero
pinilit niya ako. Ayoko man ba! So she filed an
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 52

action to declare the second marriage defective on in the office of the prosecutor or the court
the ground of vitiated consent. Ayan! Prejudicial conducting the preliminary investigation.
yan because she is the victim [of force and
intimidation]. Really, if her second marriage was Of course, when the criminal action has been
obtained without her consent, how can she be filed in court, the petition for suspension must be
guilty of bigamy? Yan! Pwede yan! filed in the same criminal action.

CASE: (decided by Court of Appeals) A The first case where the SC said that
criminal case was filed against Kenneth for prejudicial question can be raised even in the
forcible abduction with rape. While the criminal preliminary investigation was first laid down in
case was pending, there was a supposed marriage the 1940 case of DE LEON VS. MABANAG (72
between him and his victim (Hannah) para ma- Phil. 202).
extinguish ang criminal liability ni Kenneth. But
Hannah filed a case to declare the marriage as However in 1962, the SC had a change of
null and void. Question: Will the pendency of the mind in the case of DASALLA VS. CITY
civil case for nullity of marriage filed by Hannah ATTORNEY, (5 SCRA 193) where the SC said, the
be considered as prejudicial question to suspension on the ground of prejudicial question
determine whether the forcible abduction case only applies when the case is already in court but
will proceed to the SC? not where the case is still under preliminary
RULING: According to the CA, YES because investigation. The ruling in Mabanag is
of this argument: suppose it is proven that the abandoned. The Dasalla ruling was reiterated in
marriage between the Kenneth and the Hannah is the case of FALGUI VS. PROVINCIAL FISCAL OF
null and void, therefore, the criminal liability of PAMPANGA, 62 SCRA 462.
Kenneth for forcible abduction with rape cannot
be extinguished because the marriage is a false However, when the 1985 rules were enacted,
one. However, if it turned out that the marriage is you will notice in Section 6 that the issue of
really valid, then the criminal case for abduction prejudicial question may be raised in the office of
will definitely be extinguished. the prosecutor or the judge conducting the
preliminary investigation. That means the
CASE: This one is squatting. Andr was resurrection of the Mabanag ruling in 1940 and the
accused under the anti-squatting law for abandonment of the subsequent cases of Dasalla
occupying the property of Eumir. In another civil and Falgui, Jr. So binalik nila ang Mabanag.
case, the issue is ownership of the same property
between Andr and Eumir. They are quarreling
as to who is really the owner. Here, kailangan
muna matulog ang criminal case. Depende yan
kasi kung sinong manalo sa civil case. How can
you be a squatter if it turns out that you are the
owner of property. So it is considered as
prejudicial question.

The last point to consider here:

Q: Can you raise a prejudicial question as a

ground to suspend the preliminary investigation
before the fiscals office? Or, does the issue of
prejudicial question only applicable when the
case reaches the court?
A: Prejudicial question can be raised as a
ground to suspend a preliminary investigation.
Section 6 says, a petition for suspension of the
criminal action based upon the pendency of a
prejudicial question in a civil action may be filed
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 53

also to protect the state from useless and

expensive trials. (Marcos vs. Cruz, 68 Phil. 96;
Hashim vs. Boncan, 71 Phil. 216)

Q: Is Preliminary Investigation required in all

criminal cases?
A: Under the new rules, it is required when
Rule 112 the crime for which the respondent is charged
carries a penalty of at least four (4) years, two (2)
PRELIMINARY months, and one (1) day.
Q: What happen if a case is filed in court
SECTION 1. Preliminary
investigation defined; when
without preliminary investigation? Can the
required. Preliminary accused file a motion to quash the information on
investigation is an inquiry or the ground of absence of a preliminary
proceeding to determine whether
there is sufficient ground to
engender a well-founded belief A: Of course there is no question that there is
that a crime has been committed a denial of a right. However, if there is an
and the respondent is probably
guilty thereof, and should be
irregularity, that is not a ground for dismissal. An
held for trial. information cannot be dismissed because there
Except as provided in was no preliminary investigation. The procedure
section 7 of this Rule, a
preliminary investigation is is for the court to suspend the proceedings and
required to be conducted before refer the matter back to the proper officer for
the filing of a compliant or preliminary investigation (People vs. Oliveria, 67
information for an offense
where the penalty prescribed by Phil. 427; People vs. Manlapas, L-17993, August
law is at least four (4) years, 24, 1962)
two (2) months and one (1) day
without regard to the fine.
(1a) Q: Who has the discretion whether to
prosecute or not to prosecute?
Alright. We will now go to Preliminary A: The public prosecutor. That is why he is a
Investigation. This is one of the features of the powerful officer. He exercises quasi-judicial
inquisitorial system of criminal procedure. The function because he is the one to determine
government is the boss. The purpose is for whether to file a case against you or not. He has
determining whether there is probable cause, not the authority to file or the authority to dismiss.
guilt or innocence of the accused, because what is
probable cause to you may not be probable cause Q: Can the discretion of a public prosecutor
sa akin. That is why you can see the fiscal as a be controlled? Can you file a petition for
very powerful person in the government. He mandamus to compel a public prosecutor to file a
could say that there is probable case or there is case?
none. Depende kung anong gusto niya. A: General Rule: The public prosecutor cannot
be compelled by mandamus to prosecute a case
So, the government through the investigating because it is discretionary eh! Maybe you can
officer will decide whether there is a case or no prove grave abuse of discretion. Maybe the
case. He will first conduct an investigation and if probable cause is very, very clear or obvious, then
he believes that there is a probable cause, then he ayaw pa nyang i-file, ayan na!
will prepare a resolution recommending to this
superior that the respondent be indicted in court. Q: What are the remedies of the offended
party if a fiscal refuses to file a case even when
The purpose of preliminary investigation is to there is a sufficient evidence n which action may
secure the innocent against hasty, malicious and be taken?
oppressive prosecution, and to protect him from A: There are three (3) possible remedies:
an open and public accusation of crime, from the 1. He may take up the matter
trouble, expense and anxiety of a public trial, and with the Secretary of the Justice
who may then take such
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 54

measures as may be necessary mandamus, not certiorari or

in the interest of justice; or to prohibition.
his superior officer, the
Regional State Prosecutor; Lets go back in the case of
2. He may also file with the
proper authorities or court TEEHANKEE JR. vs. MADAYAG
criminal or administrative March 6, 1992
charges against the fiscal. That
is what you call prevericacion in FACTS: Here, Claudio Teehankee,
the Revised Penal Code; Jr. was originally charged for the
3. He may file a civil action for crime of frustrated murder for
damages under Article 27, shooting Hultman na na-comatose for
New Civil Code. how many months. In the course of
the trial, Hultman died. The
There are other cases where the Supreme prosecution sought to change the
Court (SC) commented on this aspect about the information from frustrated murder to
quasi-judicial power of the public prosecutor. In consummated murder. Teehankee Jr.
the case of GUIAO VS. FIGUEROA (94 Phil. questioned the new charge for lack of
1018), the SC said that the prosecution, as an preliminary investigation thereon .
exception, may be compelled by mandamus if he There are three (3) questions to be
abuses his discretion and refuses to include a answered here:
person as a co-accused against whom there
appears to be at least a prima facie evidence. That ISSUE #1: Was there an amendment
is grave abuse of discretion. However, this of the information or substitution when
extraordinary writ is available only if the petition the information was changed from
shows that he has first exhausted all remedies in frustrated murder to consummated
the ordinary course of law such as a motion filed murder?
with the trial court for the indictment of the HELD: There is an amendment.
person or persons excluded by the prosecutor. There is an identity of offenses
charged in both the original and the
amended information [murder pa
rin!]. What is involved here is not a
SANCHEZ vs. DEMETRIOU variance of the nature of different
November 9, 1993 offenses charge, but only a change in
the stage of execution of the same
HELD: The decision of the offense from frustrated to
prosecutor may be reversed or consummated murder. This being the
modified by the Secretary of Justice or case, we hold that an amendment of
in special cases by the President of the the original information will suffice
Philippines. But even this Court and, consequent thereto, the filing of
cannot order the prosecution of a the amended information for murder
person against whom the prosecutor is proper.
does not find sufficient evidence to
support at least a prima facie case. The ISSUE #2: What kind of
courts try and absolve or convict the amendment? Formal or substantial?
accused but as a rule have no part in HELD: Formal. An objective
the initial decision to prosecute him. appraisal of the amended information
The possible exception is where for murder filed against herein
there is an unmistakable showing of a petitioner will readily show that the
grave abuse of discretion that will nature of the offense originally
justify judicial intrusion into the charged was not actually changed.
precincts of the executive. But in such Instead, an additional allegation, that
a case the proper remedy to call for is, the supervening fact of the death of
such exception is a petition for the victim was merely supplied to aid
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 55

the trial court in determining the (b) Judges of the Municipal

Trial Courts and Municipal
proper penalty for the crime [So it is Circuit Trial Courts;
still murder.]. That the accused (c) National and Regional
committed a felonious act with intent State Prosecutors; and
(d) Other officers as may be
to kill the victim continues to be the authorized by law.
prosecution's theory. There is no Their authority to conduct
question that whatever defense herein preliminary investigations
shall include all crimes
petitioner may adduce under the cognizable by the proper court
original information for frustrated in their respective territorial
murder equally applies to the jurisdictions. (2a)
amended information for murder.
So halimbawa sabihin ng Q: Going back to Rule 110, Section 1, how is a
prosecutor: You shot Hultman who criminal action instituted?
almost died. Teehankee Jr.: Wala man A: Read Section 1, Rule 110:
ako dun ba! I was at home asleep! Alibi
SECTION 1. Institution of
ang defense niya ba. Now, namatay si criminal actions. Criminal
Hultman. Ano man ang depensa mo? actions shall be instituted as
Mau man gihapon: Wala man ako follows:
(a) For offenses where a
dun! preliminary investigation is
So you are not prejudiced because required pursuant to section 1
the same defense available to you is of Rule 112, by filing the
complaint with the proper
still available to you now. officer for the purpose of
conducting the requisite
ISSUE #3: Is there a need of a preliminary investigation.
preliminary investigation on the new
Q: Who are those proper officers?
HELD: No need because you have
A: They are the officers authorized to conduct
not changed the crime. If you change
preliminary investigation and they are
the crime or when there is
mentioned in Section 2:
substitution, kailangan ng preliminary
1. Provincial, city prosecutors and their
investigation. Since it is only a formal
amendment, preliminary investigation
2. Judges of the MTC, MCTC;
is unnecessary. The amended
3. Other officers as may be authorized by
information could not conceivably
law to conduct preliminary
have come as a surprise to petitioner
for the simple and obvious reason that
it charges essentially the same offense
An example of Other officers as may be
as that charged under the original
authorized by law to conduct preliminary
information. Furthermore, as we have
investigation is the Ombudsman. In the case of
heretofore held, if the crime originally
charged is related to the amended
[August 9, 1999]), the Ombudsman and his
charge such that an inquiry into one
deputies are only authorized to conduct
would elicit substantially the same
preliminary investigation of public officers in
facts that an inquiry into the other
cases which are falling within the original
would reveal, a new preliminary
jurisdiction of the Sandiganbayan (SB).So even if
investigation is not necessary.
the crime is a violation of the Anti-Graft law, or a
crime committed by a public officer in relation to
SEC. 2. Officers authorized
his office, if he is below Grade 27, the proper
to conduct preliminary court is not the SB, but the MTC or RTC. Before
investigations. The following kasi, the original SC interpretation of the
may conduct preliminary
investigations: Ombudsman law as laid down in the first case of
(a) Provincial or City DELOSO VS. DOMINGO (November 21, 1990), is
Prosecutors and their
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 56

that, all crimes committed by public officers them at his expense. If the
evidence is voluminous, the
should be investigated by the Ombudsman. complainant may be required to
specify those which he intends
HOWEVER, Ombudsman Desierto filed a to present against the
respondent, and these shall be
Motion for Further Clarification in the SC in made available for examination
relation to the case of UY where I think the or copying by the respondent at
Ombudsman is trying to convince the SC to his expense.
Objects as evidence need not
change its mind because it is practically making be furnished a party but shall
that office a useless office. Now, SC resolved to be made available for
consider the same. Therefore the ruling in UY is examination, copying, or
photographing at the expense of
reversed in a SC resolution (dated March 20, 2001 the requesting party.
[G.R. 105965-70]) where the SC went back to its (c) Within ten (10) days
from receipt of the subpoena
original ruling that the Ombudsman is with the complaint and
authorized to conduct preliminary investigation supporting affidavits and
and to prosecute all criminal cases involving documents, the respondent shall
submit his counter-affidavit
public officers and employees, not only those and that of his witnesses and
within the jurisdiction of the Sandiganbayan, but other supporting documents
those within the jurisdiction of the regular courts relied upon for his defense.
The counter-affidavits shall be
as well. So take note of that. subscribed and sworn to and
certified as provided in
paragraph (a) of this section,
SEC. 3. Procedure. The
with copies thereof furnished
preliminary investigation shall
by him to the complainant. The
be conducted in the following
respondent shall not be allowed
to file a motion to dismiss in
(a) The complaint shall
lieu of a counter-affidavit.
state the address of the
(d) If the respondent cannot
respondent and shall be
be subpoenaed, or if
accompanied by the affidavits
subpoenaed, does not submit
of the complainant and his
counter-affidavits within the
witnesses, as well as other
ten (10) day period, the
supporting documents to
investigating office shall
establish probable cause. They
resolve the complaint based on
shall be in such number of
the evidence presented by the
copies as there are
respondents, plus two (2)
(e) The investigating
copies for the official file.
officer may set a hearing if
The affidavits shall be
there are facts and issues to
subscribed and sworn to before
be clarified from a party or a
any prosecutor or government
witness. The parties can be
official authorized to
present at the hearing but
administer oath, or, in their
without the right to examine or
absence or unavailability,
cross-examine. They may,
before a notary public, each of
however, submit to the
whom must certify that he
investigating officer questions
personally examined the
which may be asked to the party
affiants and that he is
or witness concerned.
satisfied that they voluntarily
The hearing shall be held
executed and understood their
within ten (10) days from
submission of the counter-
(b) Within ten (10) days
affidavits and other documents
after the filing of the
or from the expiration of the
complaint, the investigating
period for their submission. It
officer shall either dismiss it
shall be terminated within five
if he finds no ground to
(5) days.
continue with the
(f) Within ten (10) days
investigation, or issue a
after the investigation, the
subpoena to the respondent
investigating officer shall
attaching to it a copy of the
determine whether or not there
complaint and its supporting
is sufficient ground to hold
affidavits and documents.
the respondent for trial. (3a)
The respondent shall have
the right to examine the
evidence submitted by the
complainant which he may not
have been furnished and to copy
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 57

Q: What is the procedure for Preliminary HELD: The 10-day period fixed
Investigation? by law is merely directory, yet, on
A: You read Section 3 step by step. Actually the other hand, it can not be
its a battle of affidavits eh. It is the same as the disregarded or ignored completely,
old rules. Anyway Ill just mention the changes with absolute impunity. It certainly
no: can not be assumed that the law has
1. In 2nd paragraph of [b] The included a provision that is
respondent shall have the right to deliberately intended to become
examine the evidence submitted by meaningless and to be treated as a
the complainant which he may not dead letter. So all of the information
have been furnished and to copy them filed must be dismissed for violation
at his expense. of the right for speedy trial.
2. paragraph [c]. What is new here is the
last sentence The respondent shall ISSUE #2: The government
not be allowed to file a motion to contended that a total lack of
dismiss in lieu of a counter-affidavit. preliminary investigation is not a
So you can file your counter-affidavit. ground for dismissing an information,
Do not file a motion to dismiss; how come the delay in terminating a
3. [d] If the respondent cannot be preliminary investigation becomes
subpoenaed, or if subpoenaed, does now a ground for dismissal?
not submit counter-affidavits within HELD: It has been suggested that
the ten (10) day period, the the long delay in terminating the
investigating office shall resolve the preliminary investigation should not
complaint based on the evidence be deemed fatal, for even the complete
presented by the complainant. absence of a preliminary investigation
4. paragraph [e]. What is new is the 2nd does not warrant dismissal of the
paragraph, the hearing shall be held information. True but the absence
within 10 days Actually here, tapos of a preliminary investigation can be
na ang affi-affidavits. But if you want corrected by giving the accused such
to clarify something, you can call the investigation. But an undue delay in
witnesses for clarificatory questioning, the conduct of a preliminary
pero he has a deadline to do it 10 investigation can not be corrected, for
days. until now, man has not yet invented a
device for setting back time.
In the case of


159 SCRA 70, March 21, 1988 SANTIAGO vs. GARCHITORENA
December 2, 1993
FACTS: a report was filed by de
los reyes with the presidential security FACTS: Anti-graft charges were
command PSC. it was just made to filed against Miriam Defensor-
sleep for 5 years until it was Santiago when she was still the
ressurected when Tatad had a falling Immigration Commissioner. Santiago
out with Marcos. the report was raised this issue (on delay) because
ressurected as a formal comlplaint. 5 the offense was allegedly committed
ciminal charges were filed in the on or about October 17, 1988 and the
tanodbayan. The preliminary information was filed only on May 9,
investigation lasted for 3 years. So 1991 or almost 3 years later. The
Tatad questioned the information. amended information was filed only
on December 8, 1992 or 4 years later.
ISSUE #1: Is the 10-day period to So following the Tatad ruling they
issue a resolution mandatory or shall be dismissed.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 58

HELD: [Santiago] cannot the adjudicatory discourse in Tatad

complain that her constitutional rights that the three-year delay was
to due process were violated by reason specifically considered vis-a-vis all the
of the delay in the termination of the facts and circumstances which
preliminary investigation. Tatad v. obtained therein.
Sandiganbayan, 159 SCRA 70 [1988] is
inapplicable to petitioner's case. In So you just dont consider the time element.
Tatad, there indeed was an You must also consider the facts. Panahon ni
unexplained inaction on the part of the Marcos yung kay Tatad eh.
public prosecutors inspite of the
simplicity of the legal and factual
issues involved therein. In the case at SERVANTES vs.
bench, there was a continuum of the SANDIGANBAYAN
investigatory process but it got snarled 307 SCRA 149, May 18, 1999
because of the complexity of the issues
involved. NOTE: The Tatad ruling was
We note that [Santiago] had applied in this case.
previously filed two petitions before FACTS: Here, Elpidio Servantes
us involving 2 criminal cases. was charged for violation of Section
Petitioner has not explained why she 3(e) of the Anti-Graft law. It took the
failed to raise the issue of the delay in special prosecutor six (6) years from
the preliminary investigation and the the filing of the initiatory complaint
filing of the information against her in before he decided to file an
those petitions. A piece-meal information for the offense in the
presentation of issues, like the Sandiganbayan. Servantes filed a
splitting of causes of action, is self- motion to quash for violation of the
defeating. So it is like splitting your right to speedy disposition of the case.
causes of action working against you. Special prosecutor tried to justify the
Yaan! delay in the resolution of the
complaint by stating that no political
motivation appears in the prosecution
of the case in apparent reference in the
case of Tatad because in the case of
Tatad there was political motivation
SANDIGANBAYAN dun eh kaya na-delay.
253 SCRA 773, February 20, 1996 Special Prosecutor: Servantes here
was insensitive to the implications and
NOTE: I think Socrates was a contingencies thereof by not taking
governor of Palawan. He was also any step whatsoever to accelerate the
facing cases in the Sandiganbayan disposition of the matter. Meaning, 6
where he invoked the Tatad ruling. years anong ginawa mo? Hindi ka
HELD: In the application of the man nagreklamo! You did not file a
constitutional guaranty of the right to motion to hurry up. So you are
speedy disposition of cases, particular estopped.
regard must also be taken of the facts
and circumstances peculiar to each HELD: We find Servantes
case. It is palpably clear that the contention meritorious. He was
application of the Tatad doctrine deprived of his right to speedy
should not be made to rely solely on disposition of the case, a right
the length of time that has passed but guaranteed by the Constitution. We
equal concern should likewise be cannot accept special prosecutors
accorded to the factual ambiance and ratiocination. It is the duty of the
considerations. It can easily be prosecutor to speedily resolve the
deduced from a complete reading of complaint as mandated by the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 59

Constitution regardless of whether There is no mention that after the counter-

Servantes did not object to the delay affidavit, the complainant can also file a reply-
although the delay was with his affidavit. There is nothing which says that it
acquiescence provided it was not due cannot be done, there is nothing which says that
to causes directly attributable to him. it can be done. Well, my position is, since it is not
So the mere fact that he was not prohibited, try it. Anyway wala mang bawal ba.
complaining is not a factor. What is
the factor is when the delay was Q: Going back to paragraph (b) when the
caused by him. Yaan! respondent is subpoenaed, he is supposed to file
his counter-affidavit. Paano kung di siya ma-
subpoena or even if subpoenaed he does not
I know a case decided here during the time of submit his counter-affidavit?
former deputy Ombudsman Delpacio(?) when he A: The investigating officer shall resolve the
was still here in Davao. For more than 4 years the complaint based on the evidence presented by the
preliminary investigation has not been complainant.
terminated. The respondent filed a mandamus
direct to the SC to compel the dismissal of his
case citing Tatad case. With this mandamus, the MERCADO vs. COURT OF APPEALS
SC required the Ombudsman to comment. So July 5, 1995
what the Ombudsman did, pinaspasan niya! So
he came out with a resolution immediately a HELD: The New Rules on
resolution to file. Then he answered the SC: I Criminal Procedure does not require
already terminated the preliminary investigation in as a condition sine qua non to the
fact there is now a resolution to file. Cured na! There is validity of the proceedings [in the
no more delay. Sabi ng SC: Hindi na puwede yan! preliminary investigation] the
i-dismiss mo na! presence of the accused for as long as
efforts to reach him were made, and
an opportunity to controvert the
Lets go back to paragraph [b]: evidence of the complainant is
accorded him. The obvious purpose of
(b) Within ten (10) days the rule is to block attempts of offenses
after the filing of the by hiding themselves or by employing
complaint, the investigating
officer shall either dismiss it dilatory tactics."
if he finds no ground to
continue with the
investigation, or issue a
subpoena to the respondent SEC. 4. Resolution of
attaching to it a copy of the investigating
complaint and its supporting prosecutor and its
affidavits and documents.
The respondent shall have review. If the
the right to examine the investigating prosecutor finds
evidence submitted by the cause to hold the respondent
complainant which he may not for trial, he shall prepare the
have been furnished and to copy resolution and information. He
them at his expense. If the shall certify under oath in-
evidence is voluminous, the the information that he, or as
complainant may be required to shown by the record, an
specify those which he intends authorized officer, has
to present against the personally examined the
respondent, and these shall be complainant and his witnesses;
made available for examination that there is reasonable ground
or copying by the respondent at to believe that a crime has
his expense. been committed and that the
Objects as evidence need not accused is probably guilty
be furnished a party but shall thereof; that the accused was
be made available for informed of the complaint and
examination, copying, or of the evidence submitted
photographing at the expense of against him; and that he was
the requesting party. given an opportunity to submit
controverting evidence.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 60

Otherwise, he shall recommend for trial, he shall prepare the resolution and
the dismissal of the complaint.
Within five (5) days from information and he will certify under oath that
his resolution, he shall he, or as shown by the record, an authorized
forward the record of the case officer, has personally examined the complainant
to the provincial or city
prosecutor or chief state and his witnesses that there is a reasonable
prosecutor, or to the Ombudsman ground to believe that a crime has been
or his deputy in cases of committed that the accused is probably guilty
offenses cognizable by the
Sandiganbayan in the exercise thereof, that the accused was informed of the
of its original jurisdiction. complaints and of the evidence submitted against
They shall act on the him and that he was given opportunity to submit
resolution within ten (10) days
from their receipt thereof and controverting evidence. That is a standard form
shall immediately inform the in the information filed by the prosecutor.
parties of such action.
No complaint or information
may be filed or dismissed by an Q: Suppose the prosecutor failed to make that
investigating prosecutor certification in the information, is the information
without the prior written valid or defective?
authority or approval of the
provincial or city prosecutor A: It is still VALID. Notwithstanding the
or chief state prosecutor or absence in the information of a certification as to
the Ombudsman or his deputy. the holding of a preliminary investigation, the
Where the investigating
prosecutor recommends the information is nonetheless considered valid for
dismissal of the complaint but the reason that such certification is not an
his recommendation is
disapproved by the provincial
essential part of the information itself and its
or city prosecutor or chief absence cannot vitiate it as such. (Alvizo vs.
state prosecutor or the Sandiganbayan, 220 SCRA 45)
Ombudsman or his deputy on the
ground that a probable cause
exists, the latter may, by Q: After that, what will he do? To whom will
himself, file the information he forward his resolution?
against the respondent, or
direct another assistant
A: To the provincial or city prosecutor or chief
prosecutor or state prosecutor state prosecutor depending on who is conducting
to do so without conducting the preliminary investigation;
another preliminary
If upon petition by a proper Q: Is the resolution of the prosecutor
party under such rules as the appealable?
Department of Justice may
prescribe or motu propio, the
A: YES. It is appealable to the Secretary of
Secretary of Justice reverses Justice. The last paragraph of Section 4 gives the
or modifies the resolution of power of review to the Department of Justice
the provincial or city
prosecutor or chief state that is, if the case originally started in the Fiscals
prosecutor, he shall direct the office.
prosecutor concerned either to
file the corresponding
information without conducting The DOJ can reverse or modify resolution of a
anther preliminary city or provincial prosecutor and the procedure
investigation, or to dismiss or for review is governed not by the Rules of Court,
move for dismissal of the
complaint or information with but by a department order. There is also a
notice to the parties. The same procedure there for appeal or review by the DOJ
rule shall apply in preliminary (2000 DOJ Rules on Appeal, July 3, 2000).
investigations conducted by the
officers of the Office of the
Ombudsman. (4a) One of the cases we have to remember here is
the leading case of CRESPO VS. MOGUL, (June
30, 1987). Here are some points discussed in this
The investigating prosecutor after the case:
preliminary investigation will now issue a
resolution to be approved by his superior Q: What happens if the DOJ sustains the
recommending the filing or dismissal of the case. appeal?
If he finds probable cause to hold the respondent
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 61

A: It will reverse the resolution of the HELD: The power of the fiscal is
prosecutor. practically absolute whether to file or
not to file. But once the case is filed in
Example: court, the power now belongs to the
PROSECUTOR: Dismiss! The case judge and he is the one who will
should not be filed. determine whether to proceed or not
DOJ: Reversed! You file the case. to proceed. The court will be the one
to decide because control over the case
Walang magawa ang fiscal diyan. He must is already shifted in the court. The
file the case because that is the order of his court now has the absolute power and
superior. What if: once the court tell the fiscal you
proceed, then the fiscal has to proceed.
Example: The latter should not shirk from his
PROSECUTOR: There is probable responsibility of representing the
cause. I will file the case. People of the Philippines. So the
RESPONDENT/ACCUSED: absolute power of the fiscal ends upon
Appeal! the filing of the case in court.
DOJ: I will reverse. You are hereby As an advise [advise lang, hindi
ordered not to file. naman order], that in order to avoid
this unpleasant situation where the
Q: E kung na-file na? opinion o the Secretary of Justice is not
A: Under the new rules, the fiscal is ordered to proceed but the opinion of the judge
to file a motion to dismiss the case in court. is to proceed, and the fiscal is caught
in the middle [naipit ba!], when the
There is no problem if the resolution of the case is already filed in court, as much
fiscal is to dismiss and then ang DOJ order is to as possible huwag ka (DOJ) ng
file. Ang mahirap is if the resolution of the fiscal makialam. The Secretary of Justice as
is to file and na-file na, and then sabi ng DOJ, ah much as possible, should not review
walang probable cause do not file! Prosecutor: the resolution of the fiscal to file when
Eh, na-file na? DOJ: Okey, you move to dismiss the case is already filed in court to
the case. avoid this unpleasant situation
because it will really cause a conflict of
So the fiscal will file a motion to dismiss. His opinion between the two (2) offices.
argument will be, there is no probable cause
according to DOJ my superior and the Secretary There are other cases where the SC elaborated
of Justice has ordered me to move for the on this but the leading case is CRESPO. I will just
dismissal of the case. Eh kung sabihin ng court: cite to you some of these cases where the SC had
something to comment about this issue as we
COURT: Ayoko! Tuloy ang kaso! have no more time to go over them one by one:
[ay naloko na!!]
FISCAL: Sorry Your Honor but that is 1. REPUBLIC VS. SUNGA (162
the order of my superior. I cannot go SCRA 191);
against the DOJ. 2. MARCELO VS. CA (235 SCRA 39);
COURT: Superior mo, hindi akin! It 3. PEOPLE VS. CRUZA (237 SCRA
is not my superior! Ituloy ang kaso! 410);
Yaan!! That was the issue in the case of 5. MOSQUERA VS. PANGANIBAN
CRESPO. And the SC ruled that: (258 SCRA 473);
6. LEDESMA VS. CA, 278 SCRA 658
CRESPO vs. MOGUL (September 5, 1997).
June 30, 1987
And based on some of these cases in relation
to reinvestigation, the SC held that once the case is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 62

already in court and the accused would like to conduct preliminary investigations. But in Metro
have his case reinvestigated, the court must Manila and chartered cities, MTCC judges do not
agree. There must always be the concern of the conduct preliminary investigations everything
court because of the absolute control is already in is given to the state prosecutor.
the court once the case is filed. And take note that
there is no double jeopardy in preliminary What happens if the judge or the MTC judge
investigation. will conduct a preliminary investigation? The
judge will conduct a preliminary investigation.
Ang kanya, there is a probable cause or there is
no probable cause, either way he must forward
his resolution to the provincial prosecutor. The
SEC. 5. Resolution provincial prosecutor will be the one to decide.
of investigating judge
and its review. Within Q: Do you mean to tell me the provincial
ten (10) days after the prosecutor will conduct again another
preliminary investigation, the preliminary investigation?
investigating judge shall
transmit the resolution of the A: NO. He will just review the findings of the
case to the provincial or city judge. Maybe the provincial fiscal will simply
prosecutor, or to the Ombudsman adop the finding of the MTC judge.
or his deputy incases of
offenses cognizable by the
Sandiganbayan in the exercise Q: Suppose sabi ng fiscal, Di ako kuntento. I
of its original jurisdiction, am not satisfied with the preliminary
for appropriate action. The
resolution shall state the investigation by that judge. I will conduct another
findings of facts and the law preliminary investigation Puwede ba yan?
supporting his action, together A: YES. The provincial prosecutor has 100%
with the record of the case
which shall include: (a) the control. He may adopt the finding and just follow
warrant, if the arrest is by the recommendation filed, or he may conduct his
virtue of a warrant; (b) the own preliminary investigation.
affidavits, counter-affidavits
and other supporting evidence
of the parties; (c) the Q: What happens if his decision is different
undertaking or bail of the from what the MTC judge believes? Whose
accused and the order for his
release; (d) the transcripts of decision will prevail?
the proceedings during the A: Fiscals decision will prevail. He can
preliminary investigation; and reverse the resolution of the MTC judge.
(e) the order of cancellation
of his bail bond, if the
resolution is for the dismissal And in case the respondent has been arrested
of the complaint. while the case is under preliminary investigation
Within thirty (30) days from
receipt of the records, the and detained in jail, according to Section 5, last
provincial or city prosecutor, paragraph, last sentence, the provincial fiscal
or the Ombudsman or his deputy, shall order the release of an accused who is
as the case may be, shall
review the resolution of the detained if no probable cause is found against
investigating judge on the him. This is one instance where the opinion of the
existence of probable cause.
Their ruling shall expressly
provincial prosecutor prevails over that of the
and clearly state the facts and judge. The fiscal can reverse the findings of the
the law on which it is based judge eh.
and the parties shall be
furnished with copies thereof.
They shall order the release of Q: Bakit naman ganun? Why are we giving
an accused who is detained if the provincial fiscal more power than the MTC
no probable cause is found
against him. (5a)
judge when it comes to preliminary
Section 5 applies to preliminary investigations A: The reason is simple: who will prosecute
conducted by MTC judges. Remember, aside the case the judge or the fiscal? Of course, it is
from fiscal, MTC judges are also allowed to the fiscal. He will be the one to handle the case
and not the judge.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 63

will happen? The judge may issue a warrant of

Another reason is given by the SC in one case arrest to arrest the accused because in his opinion,
that actually, preliminary investigation is not there is probable cause to issue the warrant of
really the function of the judiciary. The power to arrest. So that is the situation.
determine whether to file or not file does not
belong to the judiciary. When a preliminary So you will notice that this word probable
investigation is conducted by a judge, the judge cause has many functions. When the fiscal file
performs a non-judicial function, as an exception the information, he believes that there was
to his usual judicial duties. The assignment of probable cause probable cause to file the case.
that function to judges of inferior courts and to a Pagdating sa court, the RTC judge will present
very limited extent to courts of first instance was probable cause na naman to issue warrant of arrest.
dictated by necessity and practical considerations. Iba yan eh! Kanya-kanya yan probable cause to
Consequently, the findings of an investigating file, probable cause to issue warrant. That is why in
judge are subject to review by the provincial the case of
fiscal. (Castillo vs. Villaluz, March 8, 1989)
Alright. Lets go to Section 6 a very March 8, 1989
important provision when warrant of arrest
may be issued. HELD: The fiscal prevails over
the judge only in the determination of
SEC. 6. When the existence of a probable cause
warrant of arrest may justify the filing of a complaint or
issue. (a) By the Regional information. This task is concededly
Trial Court. Within ten (10) executive. But the determination of
days from the filing of the
complaint or information, the
probable cause to justify the issuance
judge shall personally evaluate of a search warrant or a warrant of
the resolution of the arrest is the constitutional prerogative
prosecutor and its supporting
evidence. He may immediately
of the judge and may not be
dismiss the case if the withdrawn from him or even only
evidence on record clearly limited by statute or the Rules of
fails to establish probable
cause. If he finds probable
Court. This task is undoubtedly
cause, he shall issue a warrant judicial.
of arrest, or a commitment The findings of the fiscal in the
order if the accused has
already been arrested pursuant preliminary investigation do not
to a warrant issued by the control or foreclose the exercise of the
judge who conducted the power conferred personally on the
preliminary investigation or
when the complaint or judge under Section 2 of the Bill of
information was filed pursuant Rights. That power is his alone.
to section 7 of this Rule.
Incase of doubt on the
existence of probable cause, Q: Now, under the Constitution, before the
the judge may order the RTC judge issued the warrant of arrest because of
prosecutor to present probable cause, anong dapat gawin niya?
additional evidence within five
(5) days from notice and the A: He must personally examine the complainant
issue must be resolved by the and his witnesses to determine whether there is
court within thirty (30) days probable cause to issue or not to issue a warrant
from the filing of the
complaint of information. of arrest.

x x x x x x How do you interpret the phrase, personally

examine? I have to admit that the cases before
Let us picture what happens here. The case is
were somehow confusing. There were some case
triable by the RTC so this means, 6 years and 1
na literal pag-file mo ng kaso, the RTC judge
day up. Now, the fiscal conducts a preliminary
has to call the complainants, tanong tanong
investigation. Assuming after finding probable
tanong to determine the probable cause to issue
cause, he will file information. After that, what
a warrant. Otherwise if I will not examine them, it
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 64

is unconstitutional for to issue a warrant. Or in warrant of arrest of named

another case, RTC judge: sabi ng fiscal, may
probable cause to file eh. Tama na yon! I believe accused. the case was trasferred
him. I will now issue the warrant. But there are to RTC Makati to avoid
some cases that say na hindi puwede yan because misccarriage of justice. the
you are giving now to the fiscal the right to
determine your duty under the Constitution. You judge of rtc makati issued a
cannot do that because the law says you must warrant of arrest solely rellying
personally examine. Otherwise, the fiscal is the one on the determination of the
who is determining.
provincial fiscal of the probable
But meron namang mga kaso where the SC cause. all the documents are still
said that if we will require the RTC judge to
in masbate, and without
personally examine the complainant and his
witnesses to determine probable cause before personally examining the
issuing the warrant, he might have no more or compalainants and their
nothing to do more except to do that. He cannot
witnesses, the judge issued a
anymore try cases, wala na, puro na lang
probable cause. So he may not have time warrant of arrest.
anymore to do his usual duty. Thus he can rely FACTS: The information was filed
on the findings of the fiscal. information lang and a certification
by the fiscal that based on the
So this really cause some kind of confusion. investigation, there is probable cause.
Now, these confusions are now reconciled. There And on the basis of that information
are many cases such as ROBERTS VS. CA (the certification, the judge issued a
PEPSI-COLA 349 tansan case). But the first one warrant of arrest.
the SC really discussed the issue exhaustively
was the 1991 case of ISSUE: May a Judge without
ascertaining the facts through his own
LIM, SR. vs. FELIX personal determination and relying
solely on the certification or
194 SCRA 292 [1991]
recommendation of a prosecutor that a
probable cause exists issue a warrant
at the vacinity of the aiport, of arrest?
province of Masbate,
Congressman Moises Espinosa, HELD: In order to clarify this rule
once and for all, the SC went over all
and his guards were killed by a the cases where this issue kept coming
lone assassin. the provincial back, starting from: US VS. OCAMPO
(18 Phil.); AMARGA VS. ABBAS (98
fiscal, for the purpose of
preliminary investigation, filed (126 SCRA 463); SULTA VS. CA (143
a complaint in MTC of masbate, SCRA 228); SOLIVEN VS. MAKASIAR
(167 SCRA 393); CASTILLO VS.
cusing Vicente Lim et al., for
the crimes of murder and VS. INTING (187 SCRA 798); to
frustrated murder. After PEOPLE VS. DELGADO (189 SCRA
conducting the preliminary This is the dilemma: if a Judge
investigation, the court issued has to personally question each
an order concluding that a complainant and witness or go over
the records of the Prosecutor's
probable cause has been investigation page by page and word
established for the issuance of a for word before he acts on each of a
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 65

big pile of applications for arrest them, if the judge is not satisfied that there was
warrants on his desk, he may have no probable cause, he may summon the witnesses.
more time for his or her more BUT if he is satisfied, he can issue the warrant
important judicial functions. At the without the need for summoning the witnesses.
same time, the Judge cannot ignore the He can rely on the affidavits. That is what
clear words of the 1987 Constitution personally examined means.
which requires probable cause to be
personally determined by the judge, not ROBERTS vs. COURT OF
by any other officer or person. APPEALS
If a Judge relies solely on the March 5, 1996
certification of the Prosecutor, he has
not personally determined probable FACTS: This is the Pepsi-Cola 349
cause. The determination is made by tansan case. Pag-file ng fiscal, marami,
the Provincial Prosecutor. The makapal ang documents. The records
constitutional requirement has not of the case is voluminous. Maraming
been satisfied. nanalo ng 349 nun eh. So pag-file,
The Judge does not have to after 20 minutes the judge issued the
personally examine the complainant warrant of arrest. The accused
and his witnesses. The Prosecutor can challenged it:
perform the same functions as a ACCUSED: You did not
commissioner for the taking of the determine probable cause.
evidence. However, there should be a JUDGE: Bakit? All the
report and necessary documents supporting documents are
supporting the Fiscal's bare attached in the information.
certification. All of these should be ACCUSED: Yes, but how
before the judge. The judge must go can you go over them in less
beyond the Prosecutor's certification than 20 minutes? You did not
and investigation report whenever go over them. Ibig sabihin
necessary. He should call for the binasa mo lahat yan within 20
complainant and witnesses themselves minutes only?
to answer the court's probing So it is now doubtful that the judge
questions when the circumstances of will go over the entire records within
the case so require. 20 minutes. Ang kapal ng records eh!
We reiterate that in making the
required personal determination, a HELD: Sabi ng SC: Eh kung
judge is not precluded from relying on mabilis pala mag-basa ang judge?
the evidence earlier gathered by [Anong pakialam mo? Ha!] Ang importante
responsible officers. The extent of the nandoon ang records!
reliance depends on the circumstances
of each case and is subject to the
judge's sound discretion. However, (as Now, these issues were further supplemented
happened in the case of Lim) the judge by other cases in 1997. The leading case is
abuses that discretion when having no
evidence before him, he issues a
warrant of arrest. HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997

How did the SC reconcile that? When the ISSUE: Is it required that
fiscal files an information, the judge will require everything that was filed in the fiscals
the fiscal to attach to the information all the office will really be included? Lahat ba
records of the preliminary investigations talaga? Eh kung makapal?
affidavits, counter-affidavits, or other whatever
documents. All the evidence will be submitted to HELD: It is NOT required that
the judge and he will review them. After reading the complete or entire records of the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 66

case during the preliminary This brings to my mind one of the leading
investigation be submitted to and cases on this issue which was asked in the Bar
examined by the judge. We do not and which I also asked in some examinations
intend to unduly burden trial courts here. The case of
by obliging them to examine the
complete records of every case all the AMARGA vs. FISCAL
time simply for the purpose of 98 Phil. 739
ordering the arrest of an accused.
What is required, rather, is that the FACTS: The provincial fiscal filed
judge must have sufficient supporting an information in the CFI (now, RTC).
documents (such as the complaint, Normally, the judge will issue the
affidavits, counter-affidavits, sworn warrant. Nag-alanganin naman ang
statements of witnesses or transcripts judge. What the judge did was to issue
of stenographic notes, if any) upon an order requiring the fiscal to appear
which to make his independent before him and convince him that
judgment or, at the very least, upon there is probable cause for the judge to
which to verify the findings of the issue warrant. Eh ayaw ng fiscal, My
prosecutor as to the existence of golly! That is already an insult for me
probable cause. The point is: he cannot as a quasi-judicial officer! I found
rely solely and entirely on the probable cause. That is my finding.
prosecutors recommendation. The judge should believe me because
that is my prerogative. So ayaw mag-
sunod ng fiscal. Judge, Ayaw mo ha!
Going back to Section 6 (a): Okey! Case is dismissed!
Remember, there are two (2)
(a) By the Regional Trial questions there asked in the bar:
Court. Within ten (10) days
from the filing of the
complaint or information, the ISSUE #1: Does the court have the
judge shall personally evaluate power to require the fiscal to present
the resolution of the
prosecutor and its supporting evidence to convince the judge that
evidence. [This is a new there is probable cause to issue the
sentence:]He may immediately warrant of arrest when the fiscal
dismiss the case if the
evidence on record clearly already found probable cause to file
fails to establish probable the case?
cause. If he finds probable HELD: YES. The power of the
cause, he shall issue a warrant
of arrest, or a commitment fiscal is to determine probable cause to
order if the accused has file while for the judge is probable
already been arrested pursuant cause to issue the warrant of arrest.
to a warrant issued by the
judge who conducted the Iba yung iyo, iba rin yung sa akin! You
preliminary investigation or cannot say that simply because you
when the complaint or found probable cause, I will follow
information was filed pursuant
to section 7 of this Rule. [The you. [We already discussed that
last sentence is also new:]In principle and it is already stated in the
case of doubt on the existence rules] So, it will be the power of the
of probable cause, the judge
may order the prosecutor to judge to inform the prosecutor and to
present additional evidence require the fiscal to convince him that
within five (5) days from there is probable cause to issue the
notice and the issue must be
resolved by the court within warrant. (now last sentence of Section
thirty (30) days from the 6 [a])
filing of the complaint of
ISSUE #1: Since the fiscal refuses
to comply, did the judge act correctly
in ordering the dismissal of the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 67

HELD: NO. This time mali ang prosecutor. When conducted by

the prosecutor, the procedure
judge. If the fiscal does not want to for the issuance of a warrant
comply with the judges order, the of arrest by the judge shall be
remedy of the judge is not to issue the governed by paragraph (a) of
this section. When the
warrant. Ayaw mong sumunod? investigation is conducted by
then do not issue the warrant. But do the judge himself, he shall
not dismiss the case because this time follow the procedure provided
in section 3 of this Rule. If
we are already encroaching the power his findings and
of the prosecutor. (c.f. second sentence recommendations are affirmed by
of Section 6 [a]) the provincial or city
prosecutor, or by the Ombudsman
or his deputy, and the
corresponding information is
Now, based on the present rules, we will now filed, he shall issue a warrant
of arrest. However, without
ask the same questions today. waiting for the conclusion of
the investigation, the judge
Q: Can the judge require the fiscal to present may issue a warrant of arrest
if he finds after an
evidence of probable cause in convincing him to examination in writing and
issue the warrant of arrest? under oath of the complainant
A: YES. That is the prerogative of the judge. and his witnesses in the form
of searching questions and
(AMARGA VS. ABBAS) answers, that a probable cause
exists and that there is a
Q: If fiscal refuses, has the judge the power to necessity of placing the
respondent under immediate
dismiss the case? custody in order not to
A: In the case of Amarga, no. However, under frustrate the ends of justice.
Section 6, the judge may immediately dismiss the
case if the evidence on record clearly fails to establish Obviously, this rule does not apply in
probable cause. chartered cities but in municipalities. Sa
probinsiya, for example, the case is murder. That
That is a new sentence, xxx he may is not triable by MTC but you can file the
immediately dismiss the case xxx not found in the complaint for murder before the MTC not for the
prior rule. To my mind, that has change the purpose of trial but for the purpose of
answer. While before, the judge may not have the preliminary investigation. That is the difference.
power to dismiss the case if he finds no probable
cause. Right now, the rules says YES because of We already learned that the resolution of the
that new provision, he may immediately dismiss judge, whether to file or not to file, is ipasa niya
the case if the evidence on record clearly fails to sa Provincial Prosecutor who has the final say.
establish probable cause even if the fiscal has Thats why the rule says, if his findings and
already found probable cause. In other words, recommendations are affirmed by the provincial
this has changed the ruling in the old case of or city prosecutor, or by the Ombudsman or his
Amarga. deputy, and the corresponding information is
filed, he shall issue a warrant of arrest. However,
Lets go to Section 6 [b]: (Preliminary without waiting for the conclusion of the
Investigation conducted by MTC judge) investigation, the judge may issue a warrant of
arrest if he finds after an examination in writing
(b) By the Municipal Trial and under oath of the complainant and his
Court. When required pursuant
to the second paragraph of witnesses in the form of searching questions and
section of this Rule, the answers, that a probable cause exists and that
preliminary investigation of there is a necessity of placing the respondent
cases falling under the
original jurisdiction of the under immediate custody in order not to frustrate
Metropolitan Trial Court, the ends of justice.
Municipal Trial Court in
Cities, Municipal Trial Court,
or Municipal Circuit Trial Lets compare.
Court may be conducted by
either the judge or the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 68

Q: Does the fiscal have the power to issue will be issued, the judge will conduct the
warrant of arrest? examination. He will examine in writing under
A: NO. His power is to conduct preliminary oath of the complainant and witnesses in the form
investigation and if there is probable cause File! of searching questions and answers, that a
probable cause exists and that there is a necessity
Q: Who will issue the warrant? of placing the respondent under immediate
A: RTC. custody in order not to frustrate the ends of
Pero ang municipal judge, iba eh. The police
will file a complaint for homicide in MTC for So if you file a case for homicide against
preliminary investigation. Pag-basa ng MTC somebody in the municipality; tao na kilala mo;
judge, aba! Grabe ito! There is probable cause. Pero mayaman at may malalaking properties; if Im
teka muna, delikado ito baka makawala arrest him! the judge, I will not issue a warrant of arrest.
So even before the case is filed in the RTC, the Tatakbo ba yan? I dont think so. I may or may
MTC judge has the power to issue warrant of not issue the warrant but my criterion is: is there
arrest. a necessity of placing him under immediate
custody in order not to frustrate the end of
That is the difference between the power of justice? But suppose the accused has no
the MTC judge and the power of the Provincial permanent address, ayan! Delikado na yan, baka
Prosecutor. Both of them have the power to makawala! I will now issue a warrant of arrest.
conduct a preliminary investigation in the
province. But the fiscal has no power to issue a Now, what has changed the picture now is
warrant but the judge has the power to issue this: there is no question if the case is triable by
warrant even while the preliminary investigation the RTC, the MTC judge will conduct a
is going on. That is why in the province, preliminary investigation in order to determine
complainants prefer to file sa MTC para issue whether or not the case should be filed in the
dayun ang warrant. RTC.

The issuance of warrant by the MTC judge is Q: But now, when is the preliminary
ex parte. He will just determine it based on the investigation required?
affidavit of the complainant and his witnesses A: When the crime is punishable by 4 years, 2
after searching questions and answers. So the months and 1 day and up.
examination conducted by the judge is literal in
meaning. And once you are arrested, tuloy tayo. Q: The case has a maximum penalty of 6 years
You now follow preliminary investigation. You therefore triable by the MTC. Is the MTC judge
submit now your counter-affidavits. For what required to conduct a preliminary investigation?
purpose? We will determine whether the case A: YES. Mandated man yan ba! Although it is
will be filed in the RTC or not. triable by the MTC, it is still mandatory for the
MTC judge to conduct preliminary investigation
So there are two (2) stages: because any crime which carries the penalty of 4
years, 2 months and 1 day or up, is subject to
1. first stage Preliminary Examination preliminary investigation.
to determine whether or not to issue a
warrant of arrest. This is done ex parte. Q: In this case, who will conduct the
2. second stage Preliminary preliminary investigation? The fiscal or the MTC
Investigation proper - to determine, judge?
after you are arrested, whether or not A: Either one of them. Let us read the opening
you will be indicted in the RTC. paragraph of Section 6 (b):

Q: Is it mandatory that every time you file a (b) By the Municipal Trial
Court. When required pursuant
case in the MTC, the judge will always issue a to the second paragraph of
warrant or arrest? section of this Rule, the
A: NO. Hindi naman sinabi yun because in preliminary investigation of
cases falling under the
order to determine whether a warrant of arrest
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 69

original jurisdiction of the

Metropolitan Trial Court,
Municipal Trial Court in Normally, when the information is filed in
Cities, Municipal Trial Court, court, the court issues a warrant of arrest.
or Municipal Circuit Trial However, there are instances when the court need
Court may be conducted by
either the judge or the not issue a warrant of arrest.
Q: What are the instances when the court
But I was wondering with this issue. This need not issue a warrant of arrest?
happens in places where there is only 1 branch, 1 A: Under Section 6 [c], the following are the
judge. For example, ako ang judge and the case is instances:
filed before me preliminary investigation ito ha!
4 years, 2 months and 1 day. There is a probable 1. if the accused is already under
cause so I will continue. Now, who will try the detention pursuant to a warrant
case? Ako rin di ba? Sabihin ng defense, Ah wala issued by the MTC in accordance with
na. Talo na kami. Bias ka na eh! Naloko na! This paragraph [b] of Section 6. If the MTC
might be a ground for disqualification eh because issues the warrant of arrest and later
you already found probable cause, chances are on the cases reaches the RTC because
dire-diretso na ito you will convict me, you are there is probable cause, there is no
no longer impartial. This is now the danger need for the RTC to issue another
because of this new provision. warrant because there is already a
warrant issued by the MTC. And as a
Suppose sabihin ng judge, Hindi man. I matter of fact, the accused has already
found probable cause only for the case to proceed been detained;
to trial but for all you know during the trial, I
might find you innocent, not guilty beyond 2. when the complaint or information is
reasonable doubt. Ang criterion ko diyan is filed pursuant to Section 7 of this rule.
probable cause man lang probably you are Section 7 the accused is arrested for
guilty. But when I will try it, it should be guilt committing a crime in the presence of
beyond reasonable doubt. Yan ang delikado a peace officer, the fiscal will only
dito! Mabuti sana if the fiscal was the one who conduct an inquest preliminary
conducted the preliminary investigation. But investigation and there is no need to
when I am the one who conducted the issue a warrant because the accused is
preliminary investigation and then I will also be also under detention already.
one to try the case, there might be complaints of Normally, what the court there issues
biases or prejudgment. So there are provisions in is a commitment order, just to confirm
the new rules which might create practical the detention of the accused;
aslso 1. When, in the
Lets go to the last portion of Section 6. Lets presence of the policeman,
read Section 6 [c]: the person to be arrested has
(c) When warrant of arrest committed, is actually
not necessary. A warrant of committing, or is attempting
arrest shall not issue if the
accused is already under
to commit an offense. This is
detention pursuant to a warrant the "in flagrante delicto" rule.
issued by the municipal trial
court in accordance with
paragraph (b) of this section, 2. When an offense
or if the complaint has just been committed,
or information was filed and he has probable cause
pursuant to section 7 of this to believe, based on
Rule or is for an offense
penalized by fine only. The
personal knowledge of facts
court shall them proceed in the or circumstances, that the
exercise of its original person to be arrested has
jurisdiction. (6a)
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 70

Rule. (7a; sec. 2, R.A. No.

committed it. This is the "hot 7438)
pursuit" arrest rule.
Section 7 is another important provision. This
3. When the person to is called INQUEST PRELIMINARY
be arrested is a prisoner who INVESTIGATION, related to Rule 113, Section 5
has escaped from a penal [a] and [b] on warrantless arrest. Here, there is no
establishment. need for preliminary investigation because there
is a deadline for the accused to be detained.
Otherwise the peace officer will be guilty of
3. if the accused is charged for an offense arbitrary detention delay in the delivery.
penalized by fine only di na
kailangan ang warrant of arrest. There If we will conduct a preliminary
are crimes where there is no penalty investigation, that will last for many days. So
for imprisonment but only fine like what will happen to a person who committed a
damage to property through reckless crime if we will conduct a regular preliminary
imprudence. Based on the new rules, investigation? Well, to avoid this possibility, wala
there is no need for a warrant, just an ng preliminary investigation. The prosecutor will
order to appear is sufficient. conduct an INQUEST preliminary investigation
based only on the affidavit of the complainant,
the police maybe, and his witnesses so that the
SEC 7. When accused lawfully court may issue a commitment order. With that,
arrested without warrant.
When a person is lawfully the deadline has been met you have been
arrested without a warrant delivered to the proper judicial authorities.
involving an offense which
requires a preliminary
investigation, the complaint or Now, there is a new sentence inserted in
information may be filed by a Section 7, first paragraph In the absence or
prosecutor without need of such unavailability of an inquest prosecutor, the complaint
investigation provided an
inquest has been conducted in may be filed by the offended party or a peace officer
accordance with existing rules. directly with the proper court. a very radical
In the absence or provision.
unavailability of an inquest
prosecutor, the complaint may
be filed by the offended party The normal procedure is: for example, the
or a peace officer directly offended party or the peace officer will file the
with the proper court on the
basis of the affidavit of the case before the fiscal to inquest preliminary
offended party or arresting investigation. And then the fiscal will now file the
officer or person. information in court lets say in the RTC.
Before the complaint or
information is filed, the
person arrested may ask for a Q: However, suppose there is no inquest
preliminary investigation in prosecutor? Or there is an inquest prosecutor but
accordance with this Rule, but
he must sign a waiver of the he is not available, what will happen now to the
provision of Article 125 of the case?
Revised Penal Code, as amended, A: The new provision says, the complaint
in the presence of his counsel.
Notwithstanding the waiver, he may be filed by the offended party or a peace
may apply for bail and the officer directly with the proper court so that the
investigation must be accused should be delivered.
terminated within fifteen (15)
days from its inception.
After the filing of the Why is this a very radical change? There is no
complaint or information in problem with the MTC because you can file
court without a preliminary
investigation, the accused may, directly in the MTC. But as a matter of practice,
within five (5) days from the you cannot file a complaint directly with the RTC.
time he learns of its filing, Everything here is done by information. The RTC
ask for a preliminary
investigation with the same does not entertain complaints filed by the police
right to adduce evidence in his or the offended party.
defense as provided in this
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 71

Take note that the general rule, once you post

But now, puwede na eh, under this situation bail, you are waiving your right to a preliminary
lang: (1) the accused is arrested without a investigation. In PEOPLE VS. CA, if you do not
warrant and (2) there is the absence or want to waive your right to preliminary
unavailability of an inquest prosecutor. With that investigation, then if you post bail, you must
situations, the new rules now allow a direct filing make a reservation. You must say, Im posting
of the complaint by the offended party or the bail but Im not waiving my right to preliminary
peace officer directly with the proper court even investigation. In fact, I am asking for it. In Section 7,
in the RTC. That is why this is radical change. last paragraph, when the accused post bail for his
provisional release, he is deemed to have waived
Now, whether this is the one or the other, you his right to preliminary investigation. To avoid
cannot deny the fact that the accused is entitled to the waiver, there must be a previous or
a preliminary investigation. You cannot deprive simultaneous demand for a preliminary
him of this right. When there is a case filed in investigation upon posting of bail bond.
court without preliminary investigation so that he
can be detained indefinitely in which case, he can SEC. 8. Records. (a)
Records supporting the
ask for a preliminary investigation in accordance information or complaint. An
with this rule but after the case is filed. Baliktad! information or complaint filed
in court shall be supported by
the affidavits and counter-
Normally, the preliminary investigation affidavits of the parties and
comes before the filing of the case. Dito naman, their witnesses, together with
filing comes before preliminary investigation the other supporting evidence
and the resolution on the case.
baliktad! During preliminary investigation, if (b) Record of preliminary
there is no probable cause, the complaint will be investigation. The record of
dismissed or the fiscal will move to dismiss the the preliminary investigation,
whether conducted by a judge or
case. But if you insist on that right to preliminary a prosecutor, shall not form
investigation before filing, ayaw mo ng inquest, part of the record of the case.
then you must sign a WAIVER in the presence of However, the court, on its own
initiative or on motion of any
your counsel waiver of your right under Article party, may order the production
125, RPC. Here, while the preliminary of the record or any of its
part when necessary in the
investigation is still going on, you remain under resolution of the case or any
detention. The second paragraph applies if he incident therein, or when it is
insist on the right to a regular or ordinary to be introduced as an evidence
in the case by the requesting
preliminary investigation. party.

Correlate this with Section 2 [e] of RA 7438 Section 8 is just a reiteration of a doctrine that
Law Protecting Rights of Persons under custody when the fiscal files an information, he should
i.e. he must be assisted by his counsel. Otherwise back up his certification of probable cause with
the waiver is not valid. appropriate records. An information with mere
certification is not enough. (Lim, Sr. vs. Felix,
Now, if there is no insistence, the case will be supra)
filed ahead. After it was filed, you can still ask for
preliminary investigation within 5 days from the SEC. 9. Cases not requiring
time you learn of the filing of the case. So within 5 a preliminary investigation nor
covered by the Rule on Summary
days lang, otherwise you are deemed to have Procedure. (a) If filed with
waived your right to preliminary investigation the prosecutor. If the
complaint is filed directly
with the prosecutor involving
Note that the SC had ruled that the period of an offense punishable by
5 days is NON-EXTENDIBLE that is absolute. imprisonment of less than four
(PEOPLE vs. CA, 242 SCRA 645). The five-day (4) years, two (2) months and
one (1) day, the procedure
period is absolute. After 5 days, you have no outlined in section 3(a) of
more right to ask for a preliminary investigation. this Rule shall be observed.
The prosecutor shall act on the
complaint based on the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 72

affidavits and other supporting Q: Now, going back to Rule 110. In cases
documents submitted by the
complainant within ten (10) cognizable by the MTC, how is it instituted?
days from its filing. A: Section 1, Rule 110:
(b) If filed with the
Municipal Trial Court If the
SECTION 1. Institution of
complaint or information is
criminal actions. Criminal
filed with the Municipal Trial
actions shall be instituted as
Court or Municipal Circuit
Trial Court for an offense
(a) For offenses where a
covered by this section, the
preliminary investigation is
procedure in section 3 (a) of
required pursuant to section 1
this Rule shall be observed. If
of Rule 112, by filing the
within ten (10) days after the
complaint with the proper
filing of the complaint or
officer for the purpose of
information, the judge finds no
conducting the requisite
probable cause after personally
preliminary investigation.
evaluating the evidence, or
(b) For all other offenses,
after personally examining in
by filing the complaint or
writing and under oath the
information directly with the
complainant and his witnesses
Municipal Trial Courts and
in the form of searching
Municipal Circuit Trial Courts,
questions and answers, he shall
or the complaint with the
dismiss the same. He may,
office of the prosecutor. In
however, require the submission
Manila and other chartered
of additional evidence, within
cities, the complaints shall be
ten (10) days from notice, to
filed with the office of the
determine further the existence
prosecutor unless otherwise
of probable cause. If the judge
provided in their charters.
still finds no probable cause
despite the additional
x x x x x
evidence, he shall, within ten
(10) days from its submission
or expiration of said period, So there are two (2) ways: (a) direct filing or
dismiss the case. When he finds (b) you file with the prosecutor and the provincial
probable cause, he shall issue
a warrant of arrest, or a prosecutor will file the information.
commitment order if the accused
had already been arrested, and
hold him for trial. However, if
Lets go to Section 9. If it is filed with the
the judge is satisfied that prosecutor, the procedure in Section 3[a] of this
there is no necessity for rule shall be observed. There is no need for
placing the accused under
custody, he may issue summons
preliminary investigation. The prosecutor will
instead of a warrant of arrest. simply find out based on the affidavit of the
(9a) complainant and his witnesses whether or not
there is probable cause. Wala ng counter-
affidavit. There is no need for the prosecutor to
Section 9 Cases not requiring a preliminary give a chance to the respondent to give this
investigation nor covered by the Rule on counter-affidavits. Section 3[a] lang sundin eh.
Summary Procedure. Obviously, Section 9 talks There is no mention of [b], [c] or [d].
only of cases (a) cognizable only by MTC; (b) the
penalty does not exceed 4 years 2 months because Section 9[b]. What happens if it is filed in the
even if it is 4 years 2 months 1 day (up to 6 years), MTC directly? Again, the judge will observe the
it still requires a preliminary investigation under same procedure in Section 3[a] of this rule. If the
the new rules; and (c) it should not be covered by judge finds no probable cause after personally
the Rules of Summary Procedure. The coverage of evaluating the evidence, or after personally
summary procedure is up to 6 months penalty. examining in writing and under oath the
complainant and his witnesses in the form of
Q: What cases are covered by Section 9? searching questions and answers, he shall dismiss
A: Where the prescribed penalty exceeds 6 the same. So he has the power to dismiss the case.
months but not more than 4 years and 2 months. Why continue if there is no probable cause?
These does not require preliminary investigation
and also not covered by the summary rules. The next sentence is new: He may, however,
require the submission of additional evidence, within
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 73

ten (10) days from notice, to determine further the NOTE: This case signifies that
existence of probable cause. If the judge still finds once the case reached the court, the
no probable cause despite the additional court has the absolute power.
evidence, he shall, within ten (10) days from its Anything that you like to happen in
submission or expiration of said period, dismiss the case like reinvestigation or absence
the case. When he finds probable cause, he shall of preliminary investigation, the judge
issue a warrant of arrest, or a commitment order will be the one to approve.
if the accused had already been arrested, and FACTS: The RTC judge felt that
hold him for trial. [The next sentence is new the case should be reinvestigated, or
again:] However, if the judge is satisfied that there is maybe there is no preliminary
no necessity for placing the accused under custody, he investigation. So he orders the fiscal to
may issue summons instead of a warrant of arrest. conduct preliminary investigation,
then submit the result to him
So it is not really necessary that every time a afterwards what happened. Siguro,
case is filed in the MTC with a penalty not more the judge had particular confidence in
than 4 years and 2 months, kailangan mag- the assistant provincial prosecutor.
warrant of arrest agad ang judge. Wala na yan! Sabi ng judge, The preliminary
That is the old practice. Sometimes it is very investigation should be conducted by
tedious. Lalo na sa MTC. Karamihan ng kaso sa this particular prosecutor provincial
MTC is bouncing check law. If I were the MTC assistant prosecutor Boyd Atensor.
judge, bouncing check law, sino ba yang Siya ang nag-pili ba. Sabi ng
akusado? Di ko kilala. Balita ko maraming kaso provincial prosecutor, Hindi! Ako
yan. Ah sige, I will issue a warrant. ang magpili and not you!

Pero halimbawa, sino yang akusado? He is ISSUE: In remanding the

Jet Pascua, Your Honor. Uy! Kilala ko ito! complaint or information to the
Businessman ito, titser pa sa Ateneo. Mayaman provincial prosecutor, may a regional
ito! Sus! Minalas lang. If I am the judge, I will not trial court judge name or designate a
issue a warrant. Tatakbuhan ka ba niyan? particular assistant prosecutor to
conduct the preliminary investigation
So the judge need not issue a warrant. You of the case?
better tell that to those judges because they are
automatic ba! warrant! warrant! warrant! Just HELD: NO. The RTC judge is
imagine kahit respectable man, first time offender already interfering with the office of
warrant kaagad ang mga MTC judges. the prosecutor. It must be stressed
that preliminary investigation is an
Well, under the new rules, hindi man executive, not a judicial, function. That
kailangan bah! Even if there is probable cause to an RTC judge has no authority to
file, if he is satisfied that there is no necessity to conduct a preliminary investigation
put the accused in custody, he may issue necessarily means that he cannot
summons. Summons here is not really the same in directly order an assistant prosecutor,
the Rules of Court. It is just a notice bah notice particularly over the objections of the
that you are required to appear. And that is a new latter's superiors, to conduct a
provision. preliminary investigation. To allow
him to do so is to authorize him to
Now, we will go to some decided cases meddle in the executive and
related to this rule. administrative functions of the
provincial or city prosecutor.
Q: Can a preliminary investigation be stopped
270 SCRA 393, March 25, by asking the court to grant a preliminary
1997 injunction or a restraining order? Can a criminal
prosecution be enjoined or restrained?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 74

A: NO, as a GENERAL RULE. If you believe probable cause, bakit mo pa pahirapan yung tao?
that you are not guilty, then you prove that in You can order the case to be dismissed. These are
court. Anyway if you are not guilty, you will be rare instances where the SC becomes activist.
In the case of ALEADO VS. DIOKNO (232
However, the SC came out with SCRA 192) two (2) lawyers: Atty. Diosdado Jose
EXCEPTIONS where courts is authorized to stop Aleado and Atty. Roberto Mendoza who were
a criminal prosecution. These exceptions were all associates in the office of senator Jovito Salonga
cited in the case of were implicated in the murder of a German
national. There was an investigation and a case
BROCKA vs. ENRILE was filed against them. Salonga entered into
picture and questioned whether or not there is
192 SCRA 83 probable cause. [Normally, hindi dapat yan eh.
Yang probable cause, sa fiscal lang yan, hindi
HELD: Indeed, the general rule is dapat sa SC.]
that criminal prosecution may not be
restrained or stayed by injunction, But surprisingly, the SC reviewed and said
preliminary or final. There are that there was no probable cause which justified
however exceptions, among which are: the issuance of order of arrest of the 2 lawyers.
The SC ordered that the warrant of arrest be set
a. To afford adequate protection aside and the trial court is permanently enjoined
to the constitutional rights of from further proceeding against them. In effect,
the accused; the respondent judge was ordered to dismiss the
b. When necessary for the orderly information before him. (Aleado vs. Diokno,
administration of justice or to supra)
avoid oppression or
multiplicity of actions; It was a very rare situation. That does not
c. When there is a pre-judicial happen every year. It does not happen even in 10
question which is sub judice; or 20 years! Yan ang mga kuyaw where the Court
d. When the acts of the officer are has the power to issue injunction order to stop a
without or in excess of case when there is no probable cause. Salonga
authority; yata yan!
e. Where the prosecution is under
an invalid law, ordinance or
f. When double jeopardy is
clearly apparent;
g. Where the court has no
jurisdiction over the offense; A recently
graduated lawyer
h. Where it is a case of wanted to make
persecution rather than everyone believe that
prosecution; he was in great
demand, so he ordered
i. Where the charges are his secretary to keep
manifestly false and motivated clients waiting for a
by the lust for vengeance; and long time.
A man arrived
j. When there is clearly no prima and asked to see the
facie case against the accused lawyer, so the
and a motion to quash on that secretary did as she
was told. After a
ground has been denied. while, she showed the
man into her bosss
There are some interesting cases where the SC office, while the
lawyer pretended to
intervened. Normally, hindi nakikialam ang SC be on the phone
eh i-acquit mo na lang yan sa trial. But there are handling a delicate
cases when the SC is convinced that there is no situation with an
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 75

important client. The escape;

lawyer ended the
4. Dangerous weapons and those which
make-believe phone
call and hung up. He may be used as evidence in the case.
asked the man: How
can I help you? Section 5. Arrest without warrant; when
The man
answered: Im here
to install the phone
1. When, IN HIS PRESENCE, the person to
Source: Readers
be arrested has committed, is actually
Digest, March 2001
committing, or is attempting to commit
an offense;
2. When an offense has in fact just been
committed, and he has probable cause to
believe based on PERSONAL
RULE 113
KNOWLEDGE of fact and circumstance
that the person to be arrested has
committed it; (Doctrine of Hot Pursuit)
Section 1. Definition of arrest.
3. When the person to be arrested is a
Arrest the taking of a person into custody
prisoner who has escaped from a penal
in order that he may be bound to answer for
establishment or place where he is
the commission of an offense (Sec. 1 Rule
serving final judgment or temporarily
confined while his case is pending, or has
escaped while being transferred from one
Modes of Arrest
confinement to another.
1. arrest by virtue of a warrant
4. Where a person who has been lawfully
2. arrest without a warrant under
arrested escapes or is rescued (sec 13,
statutorily provided exceptional
Rule 113);
5. by the bondsman for the purpose of
surrendering the accused (sec 23, Rule
Essential requisites of a valid warrant of
114); and
6. where the accused attempts to leave the
1. It must be issued upon probable cause
country without permission of the court
which must be determined personally by a
(sec 23, Rule 114).
judge after examination under oath or
affirmation of the complainant and the
Any objection involving an arrest of the
witnesses he may produce
accused without warrant and before the
2. The warrant must particularly describe
acquisition by the court of jurisdiction over
the person to be seized
the person of the accused must be made
BEFORE he enters a plea, OTHERWISE, the
Section 2. Arrest; how made.
objection is deemed waived.
Modes of Effecting Arrest
Section 6. Time of making arrest.
1. By an actual restraint of the person to be
Unlike a search warrant which must be
served only in daytime, an arrest may be
2. By his submission to the custody of the
made on any day and at any time of the day
person making the arrest
or night, even on a Sunday. This is justified
by the necessity of preserving the public
Upon arrest, the following may be
confiscated from the person arrested:
1. Objects subject of the offense or used or
Section 7. Method of arrest of officer by
intended to be used in the commission of
virtue of warrant.
the crime;
Section 8. Method of arrest by officer
2. Objects which are the fruits of the crime;
without warrant.
3. Those which might be used by the
Section 9. Method of arrest by private
arrested person to commit violence or to
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 76

has an opportunity
Citizen arrest - arrest effected by a private to so inform him;
person. and

Exception to the 3. when the giving

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

2. when he has Section 12. Right to break out of the

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

The private 1. when the person Section 14. Right of Attorney or relative
Sec. 9 person shall to be arrested is to visit person arrested
inform the person engaged in the RA 7438 defined certain rights of persons
to be arrested of commission of an arrested, detained, or under custodial
the intention to offense or investigation, with the penalties for
arrest him and is pursued violations thereof.
the cause of the immediately its
arrest. commission; RULE 113 ARREST
1. Arrest taking a person into custody in order
2. when he has
that he may be bound to answer for
escaped, flees, or the commission of some offense,
forcibly resists made by an actual restraint of the
before the officer
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 77

person or by his submission to (2) Witness must be under oath

custody (3) Examination must be reduced
2. General Rule: No person may be arrested to writing (Luna vs. Plaza)
without a warrant. In determining probable cause, the
Not all persons detained are arrested; only judge may rely on findings by
those detained to answer for an offense. responsible officer (Lim vs. Felix)
"Invitations" are not arrests and are iii. Judge issues warrant of arrest
usually not unconstitutional, but in some If without preliminary examination,
cases may be taken as commands (Babst considered irregular (Bagcal vs.
vs. NBI); however, the practice of issuing Villaraza)
an "invitation" to a person who is
investigated in connection with an offense iv. If peace officer is unable to serve
he is suspected to have committed is warrant 10 days after issuance, he
considered as placing him under must file a report and explanation with
custodial investigation. (RA 7438) judge within 10 days
Warrants of arrest remain valid until arrest v. If warrant served
is effected, or the warrant is lifted (1) Person informed that he is being
Arrest may be made at any time of the day arrested
or night (2) Informed of cause of his arrest
3. Warrantless arrests by a peace officer or a (3) Officer may break door or window
private person if admission to building is refused
a. When person to be arrested is committing, (4) Person physically restrained
attempting or has committed an offense For private citizens making an
b. When an offense has just been committed arrest
and the person making the arrest has May not do so except to do
personal knowledge that the person to be some service to humanity or
arrested committed it justice
Warrantless arrest anytime for a (5) No violence or unnecessary force
continuing offense like rebellion, may be used
subversion (Umil vs. Ramos)
(6) Officer may summon assistance
The continuing crime, not the crime
(7) Person who escapes after arrest
finally charged, needs only be the
may be immediately pursued
cause of the arrest (Umil vs. Ramos)
vi. Person arrested is brought to nearest
c. When person to be arrested is an escaped
police station or jail
detainee (either serving sentence or with
case pending)
c. When a person lawfully arrested escapes
d. Bondsman, for purpose of surrendering
the accused
e. Accused attempts to leave country without
court permission
4. Procedure
i. Complainant files application with
affidavits attached
ii. Judge conducts ex parte preliminary
examination to determine probable
In determining probable cause,
judge must:
(1) Personally examine witness
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 78

b. WITHOUT WARRANT: Filed with court which issued the

i. Person is arrested warrant of arrest when the warrant of
arrest is fatally flawed
ii. Person arrested may waive right to
Art. 125, RPC and ask for preliminary c. Motion to quash information
investigation or inquest Filed with court when information
Fiscal is not judicial authority against the person arrested has been
contemplated under Art. 125 (Sayo filed
vs. Chief of Police) Must be made in a "special
iii. Fiscal files info appearance" before the court
questioning only its lack of jurisdiction
5. Requisites for a warrant of arrest: over the person of the accused
a. Probable cause Otherwise, the voluntary appearance
b. Signed by judge of the person arrested by filing a
c. Specifically naming or particularly and motion before the court would be
sufficiently describing person to be deemed a submission to the authority
arrested of the court, thus granting it whatever
jurisdiction it lacked over the person
John Doe warrants are void for being
general warrants (Pangandaman vs. Any irregularity in the arrest is cured
Cesar) when the petitioner submits himself to
the jurisdiction of the court, e.g., by
6. Remedies filing for bail (Bagcal vs. Villaraza)
a. Petition for writ of habeas corpus 7. V.V. Mendoza, "Rights to Counsel in
Filed with any court, to effect Custodial Investigation"
immediate release of the person Evolution of rights of the accused under
detained custodial investigation
Filed when a person is being illegally a. All involuntary confession were
detained (without judicial process), or inadmissible; accused had to prove
was illegally arrested (void warrant or involuntariness
unlawful warrantless arrest, or
warrantless arrest beyond period with b. Involuntary confessions were
no information filed) inadmissible only if they were false
Habeas corpus is not allowed when: c. Revert to exclusionary rule: any
involuntary confession is inadmissible
i. The person is in custody of an
officer under process of law, and d. Miranda rule: the accused must be
informed of his rights
ii. The court had jurisdiction to issue
the process (Luna vs. Plaza) i. To remain silent
If an arrest is improper, the remedy is ii. Against self-incrimination
a motion for quashal of the warrant of iii. To counsel
arrest and/or a motion to quash the e. Definition of custodial investigation
information, not habeas corpus (Ilagan questioned
vs. Enrile)
f. It begins only after arrest
Habeas corpus is no longer available
after an information has been filed, the g. Police investigations prior to arrest are
information being the judicial process not covered
required by law (Ilagan vs. Enrile) h. The rights may be waived, but the
Habeas corpus is proper when a rights to be informed of these rights,
person is being restrained illegally, i.e., to warning, may not be waived
e.g., imprisoned past maximum i. Warning must not only be said, officer
penalty allowed by law (Gumabon vs. must make sure the person arrested
Director of Prisons) understands them specifically
b. Quashal of warrant of arrest j. Present rules
i. Voluntary confessions are
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 79

ii. Test of voluntariness determined criminal justice with the convenience of a person
on a case-to-case basis accused but not yet proven guilty; (b) to relieve
iii. Waiver of rights must not only be the accused of imprisonment, and the State of
with counsel but must be in writing burden of keeping him, pending trial. (6 Am. Jur.
Confessions made without 61)
assistance of counsel are
inadmissible as evidence to Can you imagine without the provision on
incriminate the accused, but they bail? There will be thousands of people who are
may be used to impeach the already in jail and all at the expense of the
credibility of the accused, or they government. So, we have to combine these two
may be treated as verbal the convenience of the accused and the
admission of the accused through convenience of the State.
the testimony of the witnesses
(People vs. Molas) Now, let us go to some political law basic
questions: When there is invasion or rebellion,
the Constitution authorizes the Commander-In-
Chief to suspend the privilege of the writ of
habeas corpus. You can be arrested on suspicion
that you are engaged in rebellion even if there is
Rule 114 no warrant and there is no case.
BAIL Q: Are you entitled to bail? Does the
suspension of the privilege of the writ of habeas
Q: Define Bail.
corpus also carry with it the suspension of the
A: Under Section 1:
right to bail?
SECTION 1. Bail defined. A: That issue bugged the Supreme Court
Bail is the security given for several times prior to the 1987 Constitution where
the release of a person in the SC gave conflicting answers.
custody of the law, furnished
by him or a bondsman, to
guarantee his appearance before In the case of NAVA VS. GATMAITAN, (90
any court as required under the Phil. 172) the SC said, Yes, he is entitled to bail
conditions hereinafter
specified. Bail may be given in once the case has been filed in court. At least 5
the form of corporate surety, out of 9 justices said that. Very close fight! Once
property bond, cash deposit, or the case is filed in court, the right to bail can be
recognizance. (1a)
availed of. So, the right to bail is different from
the suspension of the privilege of the writ of
Ano ba yang bail? Pyansa! As a general rule,
habeas corpus.
once a case is filed in court and there is probable
cause, the judge will issue a warrant. So sa
But when that issue came out during the
presohan ka. Paano yan because you are still
martial law regime, the SC gave a different
presumed innocent? Ang tawag diyan is
answer eh. So, that issue came out again in the
preventive detention. That is why if you are
convicted, that is already credited as advanced
service under Article 29 of the Revised Penal
PADILLA VS. ENRILE (121 SCRA 472). Is there a
right to bail when the privilege of the writ of
Habeas Corpus is suspended? Ang sabi ng
But that will be too tedious. You are already
Supreme Court, NO! because the governments
detained, and you are still presumed innocent.
campaign to suppress rebellion might be
The remedy is you apply for bail you post bail
ineffective. Captured rebels, would no doubt
because bail is, as a rule, a constitutional right.
rejoin their comrades in the field and jeopardize
the success of the government efforts to end the
Q: And what is the primary purpose of bail?
rebellion. That sounds logical. Just imagine, why
A: American jurisprudence says the purpose
are you suspending the privilege of the writ? To
of bail is (a) to combine the administration of
arrest suspected rebels. Pag naaresto, and then
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 80

entitled to bail, balik na naman sila sa mga niya bail muna bago surrender. (Anyway, even if
kasama nila! Anong klaseng campaign ito? That you are charged with a capital crime, you can file
is the reasoning in the case of Buscayno and Ponce a petition for bail.) But he got a lawyer and the
Enrile. lawyer filed a petition for bail in his behalf.

I think that debate is already moot and Q: In this case, can Tato apply for bail?
academic. There is now a direct provision in the A: NO. The SC said, We cannot entertain the
Constitution, Article 3 Section 13 which says that petition for bail because Tato is not in custody!
the right to bail exists and is not suspended by Simple: what is the definition of bail? Security
the suspension of the privilege. Talagang settled given for the release of a person in custody of law.
na. You are even at large then youre asking for bail?
Surrender first bago ka makahingi ng bail.
Another interesting case on bail. These are (Marigbasa vs. Luna, 98 Phil. 466; Feliciano vs.
the cases that cropped up after the 1989 coup d Pasicolan, July 31, 1961)
etat attempt against Cory Aquino because some
of the RAM suspects were detained. Many of Q: What do you mean by in custody of law?
them were detained because of court martial A: In custody of law may mean
charges. They are charged for violating military 1. physical or actual custody; or
law pero nakakulong sila. Some of them applied 2. constructive custody. (Panderanga vs.
for bail. CA, 247 SCRA 41)

Q: Are the same military officers facing PANDERANGA vs. COURT OF

charges before a court martial entitled to bail? APPEALS
SCRA 80) the SC said: NO, the right to bail has
traditionally not been recognized and it is not Facts: Petitioner was belatedly charged in an
available in the military as an exception to the amended information as a co-conspirator in
general rule as embodied in the Bill of Rights. the crime of multiple murder in the Regional
There is no such thing as bail in the military. So, Trial Court for the killing of members of the
thats an exception to the general rule. The right Bucag family sometime in 1984 in Gingoog
to speedy trial is given more emphasis in the City of which petitioner was the mayor at the
military where the right to bail does not exist. time.
The trial of the base was all set to start with
The dissenter in the case of Commendador is the issuance of an arrest warrant for
Abraham Sarmiento. Diyan mo makikita petitioners apprehension but, before it could
pagiging humanitarian lawyer niya. During the be served on him, petitioner through counsel,
time of Marcos he hates the military [gi-lubot siguro a motion for admission to bail with the trial
siya]. But he was the one who said that they are court which set the same for hearing.
entitled to bail [nalamian siguro siya] because sabi niya, As petitioner was then confined at the
according to the majority the right to bail has Cagayan Capitol College General Hospital,
traditionally hot been recognized in the military. his counsel manifested that they were
Ive been looking in the bill of rights and I cannot submitting custody over the person of their
find that exception. Where did the majority get client to the local chapter president of the
that? You mean to tell me the military before are integrated Bar of the Philippines and that, for
not citizens of the Philippines anymore? purposes of said hearing of his bail
According to Isagani Cruz who is the ponente in application, he considered being in the
that case, They are not entitled to bail as a matter custody of the law.
of tradition in the military! Sarmiento: No! We The prosecution was neither supporting nor
are a government of laws, not a government of opposing the application for bail and that they
traditions. Mag-isa lang siya, wala siyang were submitting the same to the sound
nagawa. discretion of the trail judge
Upon further inquiries from the trial court,
PROBLEM: Tato is charged with a capital Prosecutor Abejo announced that he was
crime. So, no bail. Ayaw mag-surrender. Gusto waiving any further presentation of evidence.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 81

On that note and in a resolution, the trial court as a matter of course, grant the same after a
admitted petitioner to bail in the amount of hearing conducted to specifically determine
P200,000.00 the conditions of the bail in accordance with
Issue: Whether or not the grant of bail was Section 6 (now, Section 2) of Rule 114. On
tainted with grave abuse of discretion the other hand, as the grant of bail becomes
Held: None. a matter of judicial discretion on the part of
As a paramount requisite, only those persons the court under the exceptions to the rule, a
who have either been arrested, detained, or hearing, mandatory in nature and which
other wise deprived of their freedom will ever should be summary or otherwise in the
have occasion to seek the protective mantle discretion of the court is required with the
extended by the right to bail. participation of both the defense and a duly
A person is considered to be in the notified representative of the prosecution, this
custody of the law (a) when he is arrested time to ascertain whether or not the evidence
either by virtue of a warrant of arrest of guilt is strong for the provisional liberty of
issued or by warrantless arrest or (b) the applicant. Of course, the burden of proof
when he has voluntarily submitted himself is on the prosecution to show that the
to the jurisdiction of the court by evidence meets the required quantum.
surrendering to the proper authorities.
In the case of herein petitioner, it may be FACTS: This case originated in
conceded that he had indeed filed his motion CDO. The accused was charged of
for admission to bail before he was actually murder non-bailable. So, ayaw
and physically placed under arrest. He may, niyang magpahuli. Pero actually, he
however, at that point and in the factual wants to face the case pero dapat lang
ambience therefore, be considered as being may bail. Pero problema niya how can
constructively and legally under custody. he file a petition for bail when you are
Through his lawyers, he expressly submitted not even in custody? (In custody, you
to physical and legal control over his person. have to surrender or you must be
Thus in the likewise peculiar circumstance arrested. Kaya nga ayaw niya yun eh.
which attended the filing of his bail application As much as possible, pag-surrender
with the trail court, for purposes of the niya, meron ng bail. Then what
hearing thereof he should be deemed to have happened?) He entered the hospital,
voluntarily submitted his person to the may sakit daw and then his lawyer
custody of the law and, necessarily, to the filed a petition for bail before the RTC,
jurisdiction of the trial court which thereafter We are appearing for the accused for
granted bail as prayed for. In fact, an arrest is his petition for bail. We would like to
made either by actual restraint of the arrestee manifest that he is right now in the
or merely by his submission to the custody of hospital. Will you please consider him
the person making the arrest. 19 The latter already in the custody of the court?
mode may be exemplified by the so-called Sabi ng court, [Sure!] OK, lets
house arrest or, in case of military proceed.
offenders, by being confined to quarters or
restricted to the military camp area ISSUE: Is the accused already in
The general rule is that prior to conviction by custody? Can the court entertain his
the regional trial court of a criminal offense, petition for bail even if he was not
an accused is entitled to be released on bail arrested, and the lawyer said he was
as a matter of right, the present exceptions in the hospital and the court never
thereto being the instances where the bothered to ask a policeman to go
accused is charged with a capital offense or there, check, verify, bantayan mo yung
an offense punishable by reclusion perpetua hospital until he gets well?
or life imprisonment and the evidence of guilt
is strong. Under said general rule, upon HELD: YES, he is already in the
proper application for admission to bail, the CONSTRUCTIVE custody of the law.
court having custody of the accused should, It may be conceded that he had
indeed filed his motion for admission
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 82

to bail before he was actually and of the accused, the amount of

the undertaking and the
physically placed under arrest. He conditions required by this
may, however, at that point and in the section. Photographs (passport
factual ambience thereof, be size) taken within the last six
(6) months showing the face,
considered as being constructively and left and right profiles of the
legally under custody. Thus, in the accused must be attached to the
likewise peculiar circumstances which bail. (2a)
attended the filing of his bail
application with the trial court, for Q: So, for example in the MTC, you are
purposes of the hearing thereof he arrested, natalo ka, you will appeal. How about
should be deemed to have voluntarily pag-appeal mo sa RTC, what will happen to your
submitted his person to the custody of bail?
the law and, necessarily, to the A: Tuloy-tuloy pa rin yan because under
jurisdiction of the trial court which paragraph [a], your bail is effective up to the
thereafter granted bail as prayed for. RTC.
The undeniable fact is that
Panderanga was by then in the Q: Another example: na-convict ka sa RTC
constructive custody of the law. and you want to go to the CA, are you still
entitled to bail?
A: The answer is MAYBE. This is one
Q: What are the types of bail? instance where bail is discretionary.
A: There are four (4) types of bail under
Section 1: Q: But assuming that the court will say, OK,
1. Corporate surety; you are entitled to bail on appeal. What happens
2. Property bond ; now to your bail?
3. Cash deposit; and A: The GENERAL RULE is you get another
4. Recognizance. bail bond because your bail is only up to the level
of the RTC. This is back to the 1964 rules. In the
Q: What are the conditions of a bail? 85 Rules, iba naman the bail is tuloy-tuloy up to
A: Section 2: the CA. Now, RTC level lang. You have to ask
for another bail bond if you want to go further to
SEC. 2. Conditions of the the CA. So, its back to the 64 rules no?
bail; requirements. All kinds
of bail are subject to the
following conditions: Q: Paragraph [b] you will appear before the
(a) The undertaking shall be proper court whenever required by the court or
effective upon approval, and these rules. Normally, when is a person required
unless cancelled, shall remain
in force at all stages of the by the court to appear?
case until promulgation of the A: Generally, ARRAIGNMENT or
judgment of the Regional Trial PROMULGATION lalo na pag convicted ka. But
Court, irrespective of whether
the case was originally filed there are others for example, lets read Rule 115
in or appealed to it; Section 1 [c]:
(b) The accused shall appear
before the proper court (c) To be present and
whenever required by the court defend in person and by counsel
of these Rules; at every stage of the
(c) The failure of the proceedings, from arraignment
accused to appear at the trial to promulgation of the
without justification and judgment. The accused may,
despite due notice shall be however, waive his presence at
deemed a waiver of his right to the trial pursuant to the
be present thereat. In such stipulations set forth in his
case, the trial may proceed in bail, unless his presence is
absentia; and specifically ordered by the
(d) The bondsman shall court for purposes of
surrender the accused to the identification. x x x x x x
court for execution of the
final judgment.
The original papers shall That is one instance where the court may
state the full name and address
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 83

require his presence. His presence there is not a us what are the instances when bail is a matter of
privilege but an obligation. right.

Q: Now supposed you failed to appear in

court without justification. Like for example, you BAIL AS A MATTER OF RIGHT
escaped, you jumped bail and disappeared?
What will happen to the case? Q: When is bail a matter of right?
A: Tuloy pa rin according to paragraph [c] A: Section 4:
because that would be a waiver of your right.
SEC. 4. Bail, a matter of
right; exception. All persons
Q: Anong tawag niyan? in custody shall be admitted to
A: TRIAL IN ABSENTIA pursuant to Section bail as a matter of right, with
14, 2nd paragraph, Article 2 of the Constitution. sufficient sureties, or
released on recognizance as
prescribed by law or this Rule
Q: A bail bond required the bondsmen to pay (a)before or after conviction
the fine of the accused, in addition to the usual by the Metropolitan Trial
Court, Municipal Trial Court,
condition. Is this additional condition valid? Municipal Trial Court in
A: NO. The additional condition is void Cities, or Municipal Circuit
because it made the obligation of the bondsmen Trial Court, and (b) before
conviction by the Regional
more onerous, in violation of the constitutional Trial court of an offense not
provision that no excessive bail shall be required punishable by death, reclusion
may not impose additional conditions because it perpetua, or life imprisonment.
might prevent or render it impossible for the
accused to secure his liberty during the trial.
(Bandoy vs. CFI of Laguna, 14 Phil. 620)
Q: So you are charged in the MTC; no
conviction yet. So you are still an innocent. Are
Q: A condition in a bail bond states that the
you entitled to bail?
sureties do not undertake to deliver the person of
A: Yes, as a matter of right.
the accused if the reading of the sentence is
postponed to a later date, nor do they consent to
Q: Suppose you have been convicted already,
such extension. Is this condition valid?
found guilty by the MTC, maybe sentenced to 2
A: YES, the condition is valid, because it is not
years imprisonment but you would like to appeal
contrary to law or public policy, and, besides, it
to the RTC. While your appeal is going on, can
lightens the obligation of the bondsmen, which is
you still post bail?
allowable. Conditions restricting liability on the
A: YES. Whether it is before or after
bond when accepted by the court and not
conviction by the MTC, bail is a matter of right.
contrary to public policy are valid. (People vs.
Wong Pun, 48 Phil. 713)
Q: But suppose you are charged in the RTC,
SEC. 3. No release or for example homicide punishable by reclusion
transfer except on court order temporal, are you entitled to bail?
or bail. No person under A: YES, it is also a matter of right. For as long
detention by legal process
shall be released or as the prescribed penalty is not life
transferred except upon order imprisonment, perpetua or death, it is a matter of
of the court or when he is right. So, up to reclusion temporal it is a matter of
admitted to bail. (3a)
Now, we go to these important issues on bail:
So based on the provision of law, let us try to
1. When bail is a matter of right;
2. When bail is discretionary;
3. When bail is not available.
Q: When is bail a matter of right:
A: Bail is a matter of right
As a general rule, bail is a matter of right.
1. Before conviction by the MTC, MTC,
That is a constitutional right. And Section 4 tells
or MCTC (Section 4 [a]);
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 84

2. After conviction by the MTC (Section 4 perpetua, or life imprisonment,

admission to bail is
[a]); discretionary. The application
3. Before conviction by the RTC of an for bail may be filed and acted
offense not punishable by death, upon by the trial court despite
the filing of a notice of
reclusion perpetua or life appeal, provided it has not
imprisonment (Section 4 [b]) transmitted the original record
4. Before conviction by the RTC of an to the appellate court.
However, if the decision of the
offense punishable by death reclusion trial court conviction the
or life imprisonment when evidence of accused changed the nature of
guilt is not strong. (People vs. Donato, the offense from non-bailable
to bailable, the application
infra) for bail can only be filed with
and resolved by the appellate
Under the law, when a person charged in court.
x x x x
court for example murder, non-bailable man yan
ba. What is the procedure under Section 8 if he
Q: Supposed you are charged with homicide.
wants to post bail? He must file an application or
The maximum penalty there is temporal. You are
petition for bail. And that is when the
convicted. The court found you guilty of
prosecution will have to present evidence
homicide. It sentenced you to 20 years
immediately to prove that the evidence of guilt is
imprisonment and you would like to appeal. Can
you ask for bail?
Q: Suppose after hearing for the petition for
bail, the court is convinced that the evidence of
Q: What will the court do?
guilt is not strong and the court said so, what
A: The court may or may not grant. Yan ang
happens now to bail?
A: Bail becomes a matter of right. (People vs.
Donato, 198 SCRA 130)
Now, the second sentence is new:
PEOPLE vs. DONATO The application for bail may be
198 SCRA 130 filed and acted upon by the trial
court despite the filing of a
notice of appeal, provided it has
HELD: If the offense charged is not transmitted the original record
punishable by death, reclusion to the appellate court. (Section 5,
perpetua or life imprisonment, bail first paragraph, second sentence)
becomes a matter of discretion. It shall
be denied if the evidence of guilt is This is a reversal of a ruling in the case of
strong. The court's discretion is limited
to determining whether or not OMOSA vs. COURT OF
evidence of guilt is strong. But once it APPEALS
is determined that the evidence of 266 SCRA 281, January 16, 1997
guilt is not strong, bail also becomes a
matter of right. FACTS: The court convicted the
accused for homicide. So temporal.
The accused said: Your honor, we
intend to appeal this case but may we
be asked to post bail while the appeal
Q: When is bail discretionary? Meaning, the is going on. The court said, Granted!
court may grant bail or may not grant bail. [discretionary man!]. We will fix your
A: Section 5: bail at P50,000. Two days before, the
accused filed a notice of appeal. After
SEC. 5. Bail, when filing the notice of appeal, he applied
discretionary. Upon for bail which was approved by the
conviction by the Regional
Trial Court of an offense not
punishable by death, reclusion
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 85

ISSUE: Can the court approve the talagang pag-asa. But he was convicted for
bail? homicide. So he applied for bail. And the court
granted the bail. And the SC said the trial court
HELD: NO, because when the should not grant bail because the accused is
accused filed his notice of appeal, from appealing. For all you know on appeal, the
that very moment the court has lost appellate court may reinstate the original charge
jurisdiction over the case. Dapat, for murder because when you appeal, the whole
inuna muna yung approval of bail case is open for review. So, because of the
bago mag-file ng notice of appeal. possibility that the penalty of murder would be
When the court fixed the bail, he has imposed, then there should be no bail. That was
must not yet filed his notice of appeal, the ruling of Omosa vs. CA.
so the court has the power to fix the
bail. The trouble is he immediately Now, of course it is now modified in the sense
filed a notice of appeal bago niya ging- that, bail could be granted in that situation
post ang bail. So the court has no more because he was charged with a non-bailable
jurisdiction to approve the bail. It offense but found guilty of bailable offense.
should have been approved by the However, if there is any court which should grant
Court of Appeals. the bail, it should be the CA and not the trial
court. So these are new provisions which were
That is the ruling in the Omosa. Obviously, somehow taken from the ruling in Omosa which
the SC wanted to change it. The application for is also now modified. That is the history of that
bail may still be filed and acted upon by the trial provision.
court despite the filing of a notice that is a
modification of the Omosa ruling Puwede, Alright. Now let us go to the second
provided it has not transmitted the original paragraph:
record. Based on the Omosa ruling, once the
notice of appeal is filed, the trial court has no Should the court grant the
application, the accused may be
more jurisdiction to act on the application for bail. allowed to continue on
provisional liberty during the
But NOW under the NEW RULES, puwede pendency of the appeal under
the same bail subject to the
pa even if there is already a notice of appeal on consent of the bondsman.
the condition that the records are still with the (Section 5)
RTC. If the records are already in the appellate
court, you better apply for bail before the Court That is more or less an exception to Section
of Appeals. 2[a] that we already discussed. When you are
charged in the RTC and you post bail, the bail is
Now the next sentence good up to when? The bail is only valid in the
RTC. If you want to appeal, and the court grants
However, if the decision of bail on appeal, you have to post another bail.
the trial court conviction the
accused changed the nature of
the offense from non-bailable But this provision grants the court the
to bailable, the application authority to say, Alright, your bail which you
for bail can only be filed with
and resolved by the appellate posted here will continue. Nasa court yan kung
court. (Section 5, first gustong ipatuloy. Puwede rin yun. Ok. We will
paragraph, last sentence) continue, subject to the consent of the bondsman.
That is now the condition. The bondsman may
This is also a recognition and modification of say, Delikado na ito, baka ma-convict na ito.
the ruling of Omosa vs. CA, supra. Mamaya baka lumayas na ito at tumakbo, patay
na ako. Ako ang magbabayad.
In the case of Omosa, the accused was charged
with murder non-bailable. But after the trial the Alright, let us go now to the next sentence:
court convicted him only for homicide, a lesser
offense. And homicide is bailable discretionary If the penalty imposed by
in the court. If he was convicted for murder, wala the trial court is imprisonment
exceeding six (6) years, the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 86

accused shall be denied bail, in your favor. If the court has already granted, the
or his bail shall be cancelled
upon a showing by the bail will be cancelled. Take note of that.
prosecution, with notice to the
accuse, of the following or Q: When is bail discretionary?
other similar circumstances:
(a) That he is a recidivist, A: Based on that provision, after conviction by
quasi-recidivist, or habitual the RTC of an offense not punishable by death,
delinquent, or has committed reclusion perpetua or life imprisonment, provided
the crime aggravated by the
circumstance of reiteration; the case does not fall under Section 5, third
(b) That he has previously paragraph [a]-[e] of the same law because once
escaped from legal confinement, the case falls under any of these, no bail even if it
evaded sentence, or violated
the conditions of his bail is a matter of discretion.
without valid justification;
(c) That he committed the Take note of the second instance bail as a
offense while under probation,
parole, or conditional pardon; matter of discretion. The first instance is when
(d) That the circumstances bail is a matter of right Section 4. When is bail
of his case indicate the discretion Section 5. Yung Section 4, walang
probability of flight if
released on bail; or problema, that is absolute even if you are a
(e) That there is undue risk recidivist.
that he may commit another
crime during the pendency of
the appeal. CASE: The accused was charged with
The appellate court may, homicide, there was no conviction yet. And then
motu proprio or on motion of
any party, review the
bail. He jumped bail lumayas! But he was
resolution of the Regional arrested again. When arrested apply na naman
Trial Court after notice to the for bail. Binigyan na naman ng bail. After a few
adverse party in either case.
months, layas na naman. He escaped again.
Nahuli na naman. And then he applied for bail
Alright. Let us go back to the basic: for the third time. This time, sabi ng judge,
Ayaw ko na. Because of your character, di na
What is the jurisdiction of the RTC? The puwede for jumping bail twice already. I will not
penalty is 6 years and 1 day up to death. grant you bail. And he questioned it before the
court. Is the denial of bail correct because of the
If the penalty is prision mayor to reclusion past record of the accused?
temporal [6 yrs and 1 day to 20 years] yan, sa The SC said NO because the bail is a matter
phrase na yan, bail could be granted on appeal of right. He falls under Section 4 there. Wala
but it is discretionary. However, even if the bail pang conviction. Even if he jumps bail 100 times
is granted the prosecution tells the court, Judge, you cannot deny him bail for as long as the crime
this guy was found guilty of homicide and you grant is not punishable by perpetua to death. (Sy Guan
bail. Iba pala ito eh because he is a recidivist, or etc or vs. Amparo, 79 Phil. 670; People vs. Alano, 81
any of the conditions mentioned in [a] [e], the Phil. 19)
court will now cancel the bail.
Q: What is the remedy to this kind of
So bail is discretionary provided it will not accused? Remedy?
fall under [a], [b], [c], [d], or [e]. You are a A: Taasan mo ang bail. So magkano bail mo
recidivist; you are habitual delinquent; you have dati? P30,000? Alright, ngayon P70,000 na!
previously escaped from a confinement; you have Tingnan natin kung tatakbo pa yan. [putulin kaya ang
paa?] Previous abscondence or escape is not a
committed an offense while under probation,
parole or conditional pardon; or when the ground for the denial of the bail; it merely gives
circumstances of the case indicates the probability the court discretion to increase the amount of the
of flight (there is a risk ba!); or there is an undue bond as will reasonably tend to assure the
risk that the you might commit another crime presence of the accused. (Sy Guan vs. Amparo, 79
during the pendency of the appeal, the court will Phil. 670; People vs. Alano, 81 Phil. 19)
not grant the bail. The discretion there will not be
Now, I am amused by what happened in
Section 5. Did you hear the promulgation of the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 87

Robillo case one month ago? I dont know how could be granted because the penalty is exceeding
many were convicted. I think 3 or more were 6 years.
convicted. One of them is a radioman. I know
where he hangs around. One day before the That implies that bail is discretionary because
promulgation, he is no longer hanging around. in Section 5, the heading is Bail, when
He disappeared already, na-amoy na niya siguro. discretionary so hindi cancelled. I said,
Some were military men. Tingnan mo ang opening paragraph of Section 5
upon conviction of the RTC of an offense not
They were convicted. At least one of them punishable by death, perpetua or life
was acquitted. Many were convicted. The imprisonment, admission to bail is discretionary.
penalty was reclusion perpetua. And after the trial So itong paragraph 3, upon 6 years but less than
everybody left, including the convicted accused. I perpetua. So up to 20 years. We have to connect
was visiting the jail the following day. The paragraph 3 with the first paragraph. Sabi niya
warden was telling me, What happened to this (clerk of court), This is what I know eh. Since I
case? Since yesterday we were expecting the am new in this job. I cannot insist. Dean I:
convicted person to be brought here. Convicted Sabihin mo sa judge na nagkamali sya. Ako ang
eh. nagsabi. And after 2 days, pinacancel niya
So I asked the fiscal kung anong nangyari
dyan because from what we know, if you are Ive talked that judge. He was my friend
found guilty for murder, for example, and personally. When I see him sabi ko nagkamali ka
sentenced to reclusion perpetua on the spot, you man dun ba. Dapat yun, on the spot. Thats why
will be sent to jail. Teka muna! Hindi pa final yung everybody is wondering bakit nakaganun yun.
conviction! Never mind! You can appeal but you Well, that was his first experience with a capital
are now detained indefinitely. Wala nang labas heinous crime. Dio siya naiiba eh. Hes not used
labas yan. From the court room, diretso ka na sa to trying this kind.
jail. But the judgment is not yet final? But theres
already the judgment of conviction. Even when Yung sasabihin mong bail may continue
theres still no of conviction, when the evidence of that assumes that the penalty is above 6 years but
guilt is strong, your bail will be denied. Even in not more than 20 years. Pag naging perpetua,
the middle or at the start of the case, if the wala na. Yung wala pang conviction bail could
evidence of guilt is strong, bail will be denied lalo be denied, lalo na pag may conviction na! The
na kung capital punishment. How much more evidence of guilt is now strong! Its simple logic.
here when there is already a judgement of That is why this provision will be tricky if we do
conviction?! Logic! simple logic. not know how to interpret this rule.

And the branch clerk of court, I think you

know her Atty. Morales. She called me up in the WHEN BAIL IS DENIED
office. Sabi niya, Anong nangyari dito? di ba
walang bail yan?. Sabi ko Yes. I wonder bakit
walang bail. Bakit hindi ikinancel? Kailangan SEC. 6. Capital offense
defined. A capital offense is
daw i-cancel pa ang bail. That was what the an offense which, under the law
judge said. Sabi ko, NO! The bail is automatically existing at the time of its
cancelled. That is what I said so. commission and of the
application for admission to
bail, may be punished with
Sabi niya (clerk of court), I was pointing to death. (6a)
the judge Section 5. Eh sabi niya (judge), No.
Bail is discretionary because of this paragraph 3 Take note that the crime is punishable by
if the penalty imposed by the trial court is DEATH not only at the time of its commission
imprisonment exceeding 6 years the accused but also at the time of the application for bail. The
should be denied bail or bail should be cancelled law uses the conjunction and. C.f. RA 7659 gives
upon showing by the prosecution with notice of us a list of capital offenses.
the accused of the following. Therefore, bail
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 88

SEC. 7. Capital offense or prove that the guilt is strong, not guilt beyond
an offense punishable by
reclusion perpetua or life reasonable doubt because the latter is conviction
imprisonment, not bailable. na yan!
No person charged with a
capital offense, or an offense
punishable by reclusion Ang ibig sabihin niyan, mag-sample ka lang.
perpetua or life imprisonment, You present some of the witnesses but not all.
shall be admitted to bail when Sample-an mo lang ba. Parang preliminary
evidence of guilt is strong,
regardless of the state of the injunction ba! You present some of your
criminal prosecution. (7a) evidence. after that, the court will now consider
whether the evidence of guilt is strong or not
This means if the accused is charged with a strong.
crime which is punishable by death, reclusion
perpetua, or life imprisonment, there is NO BAIL Either way the court will grant bail or deny
even at the start of the trial or even before bail tuloy pa rin ang trial! Yaan!
judgment of conviction, provided that the two (2)
conditions are present. Q: What happens now to those witnesses?
Balik na naman sila sa trial?
xxx regardless of the state of the criminal A: NO. Under Section 8, the evidence received
prosecution. Meaning, NO BAIL before during the bail hearing is automatically
conviction. Lalo na pag after conviction! reproduced at the trial. Di na kailangang ulitin
pa. But you can add more witnesses and more
Thats why I told (Atty.) Evalyn Morales na evidence.
ipakita mo [sa judge] yung Section 7 xxx
regardless of the state of criminal prosecution. After that, we will now determine if the
You already found him guilty beyond reasonable accused is guilty or not guilty. Yan na ang guilt
doubt and sentenced him to perpetua, huwag mo beyond reasonable doubt.
sabihing the evidence of guilt is not strong! How
come you convict him?! Yaan! Now, [Atty.] Ceniza had a problem in Davao
Oriental. He told me about it. An offense is, I
Now, this is where lalabas yung application think punishable by perpetua or higher. Then pag-
for bail Section 8: hingi ng bail, sabi ng prosecutor, No objection!
Siguro sabi ng court, No objection? O sige, grant
SEC. 8. Burden of proof in bail! The prosecutor did not present evidence.
bail application. At the
hearing of an application for Meaning, the prosecutor admits that the evidence
bail filed by a person who is of guilt is not strong wala ng hearing!
in custody for the commission
of an offense punishable by
death, reclusion perpetua, or Puwede ba yan? NO! The SC said that there
life imprisonment, the must be a hearing. Even if the prosecution will
prosecution has the burden of
showing that evidence of guilt
not want to present evidence, the court must
is strong. The evidence require a hearing. And the court cannot dispense
presented during the bail with the hearing.
hearing shall be considered
automatically reproduced at the
trial but, upon motion of Lets go to some decided cases.
either party, the court may
recall any witness for
additional examination unless
the latter is dead, outside the [Adm. Matter No. RTJ-95-1286]
Philippines, or otherwise March 2, 1995
unable to testify. (8a)

HELD: Although the Provincial

Arestado ka, nakulong ka. Under the law, Prosecutor had interposed no
what is the procedure? You file an application for objection to the grant of bail to the
bail. And once an application for bail is filed, it is accused, respondent judge should
now MANDATORY for the court to conduct a
nevertheless have set the petition for
hearing for the prosecution to present evidence to
bail for hearing and diligently
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 89

ascertained from the prosecution

whether the latter was not really
contesting the bail application. AURILLO vs. FRANCISCO
He should have called a hearing 235 SCRA 283
for the additional reason of taking into
account the guidelines in Rule 114 in HELD: In a hearing for
fixing the amount of the bail. Only petition for bail, affidavits will not
after satisfying himself that the suffice. Witnesses must be present
prosecution did not wish to oppose to testify. Affidavits will suffice
the petition for bail for justifiable only when it determines probable
cause (e.g., for tactical reasons) and case for the purpose of whether or
taking into account the factors not to issue search warrant. The
enumerated in Rule 114, sec. 6 for judge has the personal duty of
fixing bail should respondent judge calling the witnesses one by one to
have granted the petition for bail and hear them for or review the
ordered the release of the accused. evidence, i.e. affidavits presented
at the fiscals office.
Assuming na sabi ng prosecution, for tactical Verily, it was patent error for
reason, we will not object. The court will still have him to base his order granting bail
to conduct a hearing kung pila ang bail. Yaan! merely on the supporting
You still have to conduct a hearing. You look at affidavits attached to the
Section 9 Amount of bail; guidelines. In information since those were
determining how much is the bail, may mga merely intended to establish
guidelines eh! So if we will grant bail, at least we probable cause as basis for the
will have to find out how much. These guidelines issuance of an arrest warrant, and
must be met. So you still have to conduct a not to control his discretion to
hearing. deny or grant bail in all situations


January 18, 1995 October 27, 1994

HELD: A hearing, in the nature of HELD: Even if the prosecution

a summary proceeding entailing fails to adduce evidence in opposition
judicial determination is required to an application for bail of an
where the grant of bail is addressed to accused, the court may still require
the discretion of the court. The that it answer questions in order to
prosecution should be given the ascertain not only the strength of the
opportunity to adduce evidence state's evidence but also the adequacy
thereat after which the court should of the amount of bail.
then spell out at least a summary or
resume of the evidence on which the So kahit na sabihin pa ng prosecution that it is
order, whether it be affirmative or not opposing in the application of the bail, sabi ng
negative, is based. Otherwise, the SC: Ah, hindi puwedee! The court will have to
order is defective or voidable. ask the prosecution, why are you not opposing?
Yaan! Whether to grant or deny bail, a hearing is
Meaning, if you grant or deny bail, may court a 100% requisite. Otherwise the order granting or
order yan. Kailangang i-summarize mo ang denying bail is defective, and the judge may lose
evidence. then you state why you believe it is his job.
strong or it is weak. Otherwise the judge is
administratively liable for not complying with the
requirement. Lets go to this important question:
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 90

Q: For bail to be denied, what are the Development (MSSD) pursuant to

requirements? Article 191 Child and Youth Welfare
A: Under the law: Code was filed. But it was again denied
1. the evidence of guilt is strong; by the respondent judge.
2. the crime is punishable by death, NBI Regional Office at Naga City
reclusion perpetua or life imprisonment;
submitted its report declaring that it
3. [based on jurisprudence] if the
was the prosecution witness, Ferdinand
accused is convicted in all probability
the penalty will also be death, reclusion
del Rosario, and not the petitioner, who
perpetua or life imprisonment. killed the deceased Ramon Abiog. When
the murder case was next called for
hearing, the defense unilaterally moved
So you have to look at the probable penalty. orally that the trial of petitioner be
This principle has been illustrated in the case of reset in order to give the City Fiscal
more time to study the NBI report, but
BRAVO, JR. vs. BORJA the motion was denied as dilatory.
134 SCRA 466 Hence the instant petition for
certiorari and mandamus, with two
supplementary petitions, seeking the
Bravo Jr. V Borja release of petitioner on bail or his
transfer to the custody of the MSSD.
Petitioner Jojo Pastor Bravo, Jr., ISSUE: whether petitioner is entitled
is charged with murder for the killing of to bail as a matter of right.
one Ramon Abiog. He filed a motion for
bail based on two reasons: (a) that the
evidence against him is not strong in HELD: YES
view of the retraction by Ferdinand del Under the Constitution, "all
Rosario, one of the prosecution persons, except those charged with
witnesses, of his previous statement capital offenses when evidence of
naming petitioner as the assailant; and guilt is strong, shall, before
(b) that he is a minor of 16 years, conviction, be bailable by sufficient
entitled as such to a privileged sureties." (Article IV, Section 18.)
mitigating circumstance under Generally, therefore, bail is a matter of
Article 68 of the Revised Penal right before conviction, unless the
Code which would make the murder accused is charged with a capital
charge against him non-capital. But offense and the evidence of guilt is
respondent Judge Borja denied the strong.
motion for bail on the finding that the
evidence of petitioner's guilt is strong
and his minority was not proved.
Petitioner then filed a motion for
reconsideration stating that his minority The charge against petitioner is
had been proved by his birth certificate murder qualified by treachery and
and that the offense charged is not attended by two aggravating
capital because even if convicted, he circumstances: evident premeditation
could not be sentenced to death and nocturnity. Punishable by reclusion
because of his minority. But such was temporal in its maximum period to
denied by the respondent Judge. death, the crime is therefore a capital
A motion praying that he be offense.
placed in the care and custody of the
Ministry of Social Services and
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 91

The petitioner however submits that Nevertheless, where it has been

even assuming that the evidence of established without objection that
guilt against him is strong, the charge the accused is only 16 years old, it
of murder, as to him who is only 16 follows that, if convicted, he would
years old, cannot be capital because be given "the penalty next lower
the death penalty cannot be imposed than that prescribed by law," which
on account of his minority which effectively rules out the death
entitles him to a penalty reduction of penalty. And since in the case at bar,
one degree. In effect, under petitioner's the petitioner has proved his minority
submission, the test to determine based on the evidence submitted, it has
whether the offense charged is capital, an error on the part of the respondent
is the penalty to be actually imposed on judge to deny such.
him in view of the attendant

Petitioner's posture hardly finds FACTS: The accused was charged

support in the law. Under Section 5 with murder perpetua to death
of Rule 114 of the Rules of Court, a talagang non-bailable yan. The
accused filed a petition for bail where
capital offense is "an offense which,
the case is pending on the argument
under the law existing at the time of
that when he committed a crime, he
its commission, and at the time of the was only 16 years old. He attached his
application to be admitted to bail, may birth certificate in the application for
be punished by death." It is clear from bail. Sabi niya, if found guilty, the
this provision that the capital nature penalty is automatic one (1) degree
of an offense is determined by the lower so, temporal. The worst that
penalty prescribed by law, with will happen to him is temporal.
reference to which it is relatively Therefore, bail now becomes a matter
easy to ascertain whether the of right.
evidence of guilt against the
accused is strong. Moreover, when ISSUE #1: In the hearing for bail,
the Constitution or the law speaks of should the court allow the
evidence of guilt, it evidently refers to a presentation of evidence of mitigating
or aggravating circumstances?
finding of innocence or culpability,
regardless of the modifying
HELD: NO. Bravo, Jr. is wrong. In
circumstances. the hearing for a petition for bail, the
presentation of aggravating and
To allow bail on the basis of the mitigating circumstances is NOT
penalty to be actually imposed would covered because if the court will
require a consideration not only of the required the presentation of said
evidence of the commission of the circumstances, then there would be a
crime but also evidence of the need for a trial on the merits of the
aggravating and mitigating case. All the court has to do after the
circumstances. There would then be a bail hearing would be to render a
need for a complete trial, after which decision. That would defeat the
the judge would be just about ready to purpose of the hearing for bail.
render a decision in the case. Such
procedure would defeat the purpose of ISSUE: #2: Whether or not Bravo,
bail, which is to entitle the accused to Jr. is entitled to bail.
provisional liberty pending trial.
HELD: YES. Although the
presentation of aggravating and
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 92

mitigating circumstances is NOT guilt is strong, the trial court issued

allowed, the SC said, However, we the order granting bail. The son of the
cannot close our eyes to the fact that victim went to the SC questioning the
when Bravo, Jr. committed the crime order granting the bail of the accused.
he was only 16 years old. Normally,
we close our eyes, but in this case, we ISSUE: Whether or not the son of
cannot close it because he alleged it. As a the victim has sufficient legal
matter of fact, his birth certificate was personality to question the order
attached to this petition and the granting bail? (Normally, if there is
prosecution DID NOT challenge his anyone who should question it, it
minority. Since the plea of minority is should be the Solicitor General
already before us and the accused did representing the people of the
not challenge it, we cannot close our Philippines)
eyes to the fact that even if we fin him
guilty, the penalty to be imposed HELD: While the rule is, only the
would not be reclusion perpetua or Solicitor General may represent the
death but lower. Since the probable People or the State in criminal
penalty is not death or perpetua, then proceedings pending in this Court and
he is entitled to bail as a matter of the Court of Appeals, the ends of
right. substantial justice would be better
served, and the issues in this action
could be determined in a more just,
Q: So what are the principle points to speedy and inexpensive manner, by
remember in the case of Bravo, Jr? entertaining the petition at bar. As an
A: The following: offended party in a criminal case,
1. that in a petition for bail there should private petitioner has sufficient
be no evidence of any aggravating or personality and a valid grievance
mitigating circumstances. It should against the judge's order granting bail
not be presented in a petition for bail. to the alleged murderers of his
This should be presented during the (private petitioner's) father.
2. however, despite the fact that it should
not be presented, if it is alleged and So, the case of Calo was considered an
presented there and the prosecution exception because he is also an aggrieved party
did not dispute it, the court should the aggrieved parties are the People and the
consider it just the same; and family of the victim. So in this case, the son is also
3. even if the accused is charged with a an aggrieved party.
crime punishable by death, perpetua or
life imprisonment and the evidence of So based on what we have gone so far, let us
guilt is strong, if the probable now try to summarize the instances under Rule
imposable penalty is less than perpetua, 114 where bail is a matter of right, discretion, or is
bail becomes a matter of right. denied.

Q: When is bail a MATTER OF RIGHT:

A: Bail is a matter of right
PEOPLE vs. CALO 1. Before conviction by the MTC, MTC,
186 SCRA 620 [1990] or MCTC;
2. After conviction by the MTC;
3. Before conviction by the RTC of an
FACTS: Three (3) people were offense not punishable by death,
accused of murder for the death of the reclusion perpetua or life imprisonment;
victim. The prosecution and
recommended no bail. After a hearing 4. Before conviction by the RTC of an
to determine whether the evidence of offense punishable by death reclusion
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 93

or life imprisonment when evidence of reasonable amount of bail

considering primarily, but not
guilt is not strong. This is because once limited to, the following
the court finds that the evidence of factors:
guilt is strong, bail becomes a matter (a) Financial liability of
the accused to give bail;
of right. (b) Nature and circumstance
of the offense;
Q: When is bail DISCRETIONARY? (c) Penalty for the offense
A: Bail is discretionary after conviction by the (d) Character and reputation
RTC of an offense not punishable by death, of the accused;
reclusion perpetua, or life imprisonment provided, (e) Age and health of the
the case does not fall under the 3rd paragraph of (f) Weight of the evidence
Section 5 [a] [e]. against the accused;
(g) Probability of the
accused appearing at the trial;
Q: When shall bail be DENIED? (h) Forfeiture of other
A: The bail shall be denied under the bail;
following instances: (i) The fact that the
accused was a fugitive from
1. before conviction by the RTC of an justice when arrested; and
offense punishable by death, reclusion (j) Pendency of other cases
perpetua or life imprisonment when the where the accused is on bail.
Excessive bail shall not be
evidence of guilt is strong; required. (9a)
2. after conviction by the RTC and the
penalty imposed is death, reclusion Q: When bail shall be granted, how much is
perpetua or life imprisonment. He can the amount of it?
appeal but in the meantime, there is A: There are guidelines under Section 9
no bail; and marami eh! Of course one of the factors is
3. after conviction by the RTC where the paragraph [c] penalty for the offense charged.
penalty imposed is imprisonment Thats why the DOJ has a guidelines eh na kapag
exceeding 6 years but no more than 20 ganito ang penalty, ganito a ng i-recommend mo.
years, and the case falls under Section But that is only one of the factors. The court can
5 [a] [e]. either follow the recommendation or raise it or
lower it because aside from that, marami pa eh
So, recidivist, or you escaped from like financial ability of the accused, character or
confinement, or there is undue risk, etc. ayan! reputation of the accused, etc. And all these
Pagnahulog ka diyan, bail shall not be granted. guidelines where taken from the ruling in the
And this is where the question of Ms. case of VILLASEOR VS. ABANO (21 SCRA 312)
Masepequea will come in:
Q: What do you mean by corporate surety?
Q: Mr. Peloton was charged with a crime A: Section 10:
(sorry kaayo Gay! ) punishable by temporal. He
was convicted but the penalty is 6 years or less SEC. 10. Corporate surety.
Any domestic or foreign
(for instance, there are mitigating corporation, licensed as a
circumstances) and he wants to appeal to the CA. surety in accordance with law
Is it a matter of right or a matter of discretion? and currently authorized to act
as such, may provide bail by a
A: My view is, it is a matter of discretion but bond subscribed jointly by the
even if these circumstances (recidivist, etc.) still accused and an officer of the
bail can be granted. That is the effect. Whereas, if corporation duly authorized by
its board of directors. (10a)
the penalty is 6 years 1 day to 20 years and he is a
recidivist, etc., bail shall not be granted. But if it is
Q: What do you mean by a property bond?
only 6 years or less, it may be granted although it
is not a matter of right. A: Section 11:

SEC. 11. Property bond, how

SEC. 9. Amount of bail;
posted. A property bond is an
guidelines. The judge who
undertaking constituted as lien
issued the warrant or granted
on the real property given as
the application shall fix a
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 94

security for the amount of the shall be approved unless the

bail. Within ten (10) days surety is qualified. (13a)
after the approval of the bond,
the accused shall cause the
annotation of the lien on the Q: What do you mean by cash deposit?
certificate of title on file A: Section 14:
with the Registry of Deeds if
the land is registered, or if SEC. 14. Deposit of cash as
unregistered, in the bail. The accused or any
Registration Book on the space person acting in his behalf may
provided therefore, in the deposit in cash with the
Registry of Deeds for the nearest collector of internal
province or city where the land revenue or provincial, city, or
lies, and on the corresponding municipal treasurer the amount
tax declaration in the office of bail fixed by the court, or
of the provincial, city and recommended by the prosecutor
municipal assessor concerned. who investigated or filed the
Within the same period, the case. Upon submission of a
accused shall submit to the proper certificate of deposit
court his compliance and his and a written undertaking
failure to do so shall be showing compliance with the
sufficient cause for the requirements of section 2 of
cancellation of the property this Rule, the accused shall be
bond and his re-arrest and discharged from custody. The
detention. (11a) money deposited shall be
considered as bail and applied
SEC 12. Qualifications of to the payment of fine and
sureties in property bond. costs while the excess, if any,
The qualifications of sureties shall be returned to the
in a property bond shall be as accused or to whoever made the
follows: deposit. (14a)
(a) Each must be a resident
owner of real estate within the
(b) Where there is only one RECOGNIZANCE
surety, his real estate must be
worth at least the amount of
undertaking; Lets go to the 4th type of bail recognizance
(c) If there are two or more which are not understood by many how it
sureties, each may justify in
an amount less than that operates.
expressed in the undertaking
but the aggregate of the SEC. 15. Recognizance.
justified sums must be Whenever allowed by law or
equivalent to the whole amount these Rules, the court may
of the bail demanded. release a person in custody on
In all cases, every surety his own recognizance or that of
must be worth the amount a responsible person. (15a)
specified in his own
undertaking over and above all
just debts, obligations and So, no money nothing is filed in court. On
properties exempt from my word of honor, I will appear when the court
execution. (12a) requires me to appear. If Im convicted, dont be
SEC. 13. Justification of afraid. I will not runaway. Court: Word of honor
sureties. Every surety shall ha? [promise ha] OK! Yan! Yan ang recognizance.
justify by affidavit taken
before the judge that he
possesses the qualification Or, instead of going to jail, Payag man ang
prescribed in the preceding mayor na doon na lang daw ako sa kanya. Siya daw
section. He shall describe the ang bahala sa akin. Court: OK. You will be in the
property given as security,
stating the nature of his custody of the mayor. Kung may problema, or anytime
title, its encumbrances, the you are required to appear, you appear! And the
number and amount of other mayor will promise, Akong bahala dito. Hindi ito
bails entered into by him and
still undischarged, and his tatakbo [puputulan ko ng paa!] Sagot ko ito. Yan ang
other liabilities. The court recognizance word of you word or word of a
may examine the sureties upon responsible person.
oath concerning their
sufficiency in such manner as
it may deem proper. No bail
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 95

Para bang character loan you borrow A person in custody for

a period equal to or more
money, no collateral and I promise to pay you. than the minimum of the
Creditor: Believe ako sa iyo. Your word is as principal penalty prescribed
good as a security. OK! for the offense charged,
without application of the
Indeterminate Sentence Law
Q: Is recognizance possible in all criminal or any modifying
cases? circumstance, shall be
released on a reduced bail
A: NO. Under the rules, recognizance is only or on his own recognizance,
allowed whenever allowed by law or these Rules. So, at the discretion of the
if it is not allowed by law or the rules, hindi court.
3. Rule 114, Section 24:
Q: How do you define recognizance?
No bail shall be allowed
A: A recognizance is an obligation of record, after a judgment of
entered into before some court or magistrate duly conviction has become final.
authorized to take it, with the condition to do If before such finality, the
accused applies for
some particular act, the most usual condition in probation, he may be allowed
criminal cases being the appearance of the temporary liberty under his
accused for trial. (People vs. Abner, 87 Phil. 566, bail. When no bail was filed
or the accused is incapable
569) of filing one, the court may
allow his release on
recognizance to the custody
The next question is, what are the instances
of a responsible member of
where recognizance is allowed by the law or this the community. In no case
Rules? There are four (4) instances originated and shall bail be allowed after
the accused has commenced to
as mentioned by the SC in the 1997 case of
serve sentence.
even before JOVELLANOS came out, the 1985 4. Under PD 603 (Child and Youth
Rules says that recognizance is possible if Welfare Act) in case of a youthful
allowed by law or the Rules. Ano man yang by offender held for physical and mental
law or this Rules? So as early as 1985, I was examination, trial, or appeal, if he is
already gathering the instances when the law or unable to furnish bail and under the
the rules allow it. And I gathered four (4). Meron circumstances envisaged in P.D. No.
pa man sigurong iba, pero di ko pa siguro nakita. 603, as amended.
That is why when the case of Jovellanos came out,
tiningnan ko exactly the very four! not more, Those are the four instances where
not less. [ehem! ehem!] recognizance is allowed. So it is not possible in all
Q: What are the instances when recognizance
is allowed by the law or this Rules? This reminds of a former student of this law
A: In the case of ESPIRITU VS. JOVELLANOS school who graduated way back in 1977. He is
(280 SCRA 579): from Agusan. I remember during the mid-80s, I
went to Cagayan. Wala pa itong Buda, so I have
1. Under RA 6036 when the offense to travel via Butuan. On my way back at around 4
charged is for violation of an P.M., we were riding in a private vehicle, we
ordinance, a light felony, or a criminal stopped at a town in Agusan. We took a break
offense, the imposable penalty for kay kapoy eh. There were numerous big houses
which does not exceed 6 months there. And then I saw this attorney so and so and I
imprisonment and/or P2,000 fine, recognized him because he was a graduate of this
under the circumstances provided in school. Anyway Im not in a hurry, I went there.
R.A. No. 6036; So I met this lawyer and I gave my name. ATTY:
Uy! You! We did not see each other for a long time.
2. Rule 114, Section 16, last paragraph: Kumusta? [videoke ta!] DEAN: I was just passing by.
What are you doing now? [na kay fundador diha?] ATTY:
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 96

Im practicing law. Karamihan criminal. And I 1. Under RA 6036 yung mga 6 months
noticed marami siyang helpers sa bahay niya. So I or less under the conditions
asked him, Bat karami mo namang houseboys? mentioned therein;
ATTY: They are not houseboys, Sir. They are all
accused! DEAN: Why are they with you? ATTY: 2. When the crime is covered by the
Recognizance. DEAN: Ano pala mga crimes Summary Rules because of Section 16
nila? ATTY: Murder, Homicide. Na-shock ako!! of Rule 114. When a case is filed under
Paano nakakuha ng recognizance ito eh hindi the Summary Rules, a mere notice is
man puwede yan because recognizance is only sufficient. No need of a warrant of
possible if allowed by law or the rules. Pero arrest.
nobody is complaining naman there.
3. Section 9 [b] of Rule 112 (this is a new
SEC. 16. Bail, when not
required; reduced bail or x x x x However, if
recognizance. No bail shall the judge is satisfied
be required when the law or that there is no
these Rules so provide. necessity for placing the
When a person has been in accused under custody, he
custody for a period equal to may issue summons instead
or more than the possible of a warrant of arrest.
maximum imprisonment prescribed
for the offense charged, he
shall be released immediately, So, the court is satisfied that there
without prejudice to the is no need to issue a warrant of arrest
continuation of the trial or
the proceedings on appeal. If maybe because the court believes that
the maximum penalty to which you will not run away. In effect, no
the accused may be sentenced is bail shall be required.
destierro, he shall be released
after thirty (30) days of
preventive imprisonment. SEC. 17. Bail, where filed.
A person in custody for a (a) Bail in the amount fixed
period equal to or more than may be filed with the court
the minimum of the principal where the case is pending, or
penalty prescribed for the in the absence or
offense charged, without unavailability of the judge
application of the thereof, with any regional
Indeterminate Sentence Law or trial judge, metropolitan trial
any modifying circumstance, judge, municipal trial judge,
shall be released on a reduced or municipal circuit trial
bail or on his own judge in the province, city or
recognizance, at the discretion municipality. If the accused is
of the court. (16a) arrested in a province, city,
or municipality other than
where the case is pending, bail
Lets go further. As a general rule, when the may also be filed with any
criminal case is filed, there will be warrant of regional trial court of said
place, of if no judge thereof
arrest. If there is warrant of arrest, there must be a is available, with any
bail either in cash or recognizance. But Section 16 metropolitan trial judge,
provides that no bail shall be required when the municipal trial judge, or
municipal circuit trial judge
law or these Rules so provide. This is now the therein.
question: (b) Where the grant of bail
is a matter of discretion, or
the accused seeks to be
Q: What are the instances where despite the released on recognizance, the
pendency of the criminal case, the accused is not application may only be filed
required to post bail? Meaning, he is exempt from in the court where the case is
pending, whether on preliminary
putting up a bail bond because the law or the investigation, trial, or
rules says so. appeal.
A: The following are the instances: Any person in custody who is
not yet charged in court may
apply for bail with any court
in the province, city, or
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 97

municipality where he is held. for purposes of preliminary

investigation. That is why in one case
the SC held that inferior courts (MTC)
Section 17 is another important provision on
can entertain applications for bail in
where to file the bail. Normally, you file the bail
capital offenses as an incident to its
before the same court where you case is pending.
power to conduct preliminary
But if the judge is not around, under paragraph
investigation. (Manigbas vs. Luna, 98
[a], puwede man any RTC judge, MTC judge, etc.
Phil. 466); and
Q: Suppose your case is in Davao and you are
3. Section 35 of the Judiciary law (Special
arrested in Manila, can you post bail in Manila?
jurisdiction of the MTC) the MTC
A: YES because it would be very tedious if
may hear and decide petitions for a
you will be arrested and brought back in Davao
writ of habeas corpus or applications for
just to post bail. And under paragraph [a], it may
bail in the absence of ALL the RTC
be filed with any RTC of such place. And of
course, the judge there will accept the bail and
transmit everything to Davao.
Lets go now to the last paragraph of Section
Q: What are the instances where the accused
is only allowed to post bail before the very same Any person in custody who
court where the case is pending? is not yet charged in court may
A: Under paragraph [b], the following are the apply for bail with any court
in the province, city, or
instances: municipality where he is held.

1. if you seek to be released on This is one provision that has stunned so

recognizance, no other judge can grant many: how can a person be in custody who is not
it other the judge where you case is yet charged in court? He is already in custody
pending; pero wala pa mang kaso? What is contemplated
2. when bail is a matter of discretion. For under the last paragraph of Section 17 is Rule 112
example: Ms. Tormon is accused of a Section 7 on INQUEST preliminary investigation
capital offense and she would like to when a person is lawfully arrested without a
file a petition for bail because the warrant, he will be detained immediately without
evidence of guilt is not strong, that preliminary investigation. But if he demands a
should be decided by the very court preliminary investigation, he can get it but he
where her case is pending. must waive the effects of Article 125 of the RPC.

Section 7, Rule 112, last sentence of second

Q: Is the MTC entitled to entertain a petition paragraph provides: Notwithstanding the waiver,
for bail? he may apply for bail and the investigation must be
A: YES terminated within fifteen (15) days from its
inception. So he can ask for bail even if he is not
Q: What are the instances when a MTC is yet charged in court.
entitled to entertain applications for bail?
A: The following are the instances: Q: If you apply for bail with any court in the
province, city or municipality, ano ang title and
1. Under paragraph [b], the application number ng petition mo? You cannot put there
may be filed in the court where the People of the Philippines versus kay wala pa
case is pending, whether on mang criminal case? What will be your reference?
preliminary investigation, trial, or A: IN RE: PETITION FOR BAIL. So bahala
appeal. With this provision, it would na kayo diyan. Bahala na ang clerk of court how
seem puwede; to docket it. Basta that is my right under the law!
So you think of your own caption.
2. MTC can entertain petitions for bail in
cases not cognizable by it filed before it SEC. 21. Forfeiture of bail.
When the presence of the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 98

accused is required by the are not met, there will be judgment against the
court or these Rules, his
bondsmen shall be notified to bond. So that is the step-by-step application of
produce him before the court on Section 21.
a given date and time. If the
accused fails to appear in SEC. 23. Arrest of accused
person as required, his bail out on bail. For the purpose
shall be declared forfeited and of surrendering the accused,
the bondsmen given thirty (30) the bondsmen may arrest him or,
days within which to produce upon written authority endorsed
their principal and to show why on a certified copy of the
no judgment should be rendered undertaking, cause him to be
against them for the amount of arrested by a police officer or
their bail. Within the said any other person of suitable
period, the bondsmen must: age and discretion.
(a) produce the body of An accused released on bail
their principal or give the may be re-arrested without the
reason for his non-production; necessity of a warrant if he
and attempts to depart from the
(b) explain why the accused Philippines without permission
did not appear before the court of the court where the case is
when first required to do so. pending. (23a)
Failing in these two
requisites, a judgment shall be
rendered against the bondsmen, Section 23 is an instance of a valid warrantless
jointly and severally, for the arrest. This is a continuation of Section 5 Rule 113.
amount of the bail. The court
shall not reduce or otherwise
mitigate the liability of the For the purpose of surrendering the accused,
bondsmen, unless the accused they can arrest him without a warrant. The
has been surrendered or is
acquitted. (21a) bondsmen is his jailer. The theory of bond, lalo na
yung corporate bond, is that the sureties or
Another important provision is Section 21 bondmen becomes you jailer in the eyes of the
how bail is forfeited. law, and you are their prisoner. They took over
the government. In reality, they are not really
If you are required to appear in court for an imprisoning you. You are a free man. And
arraignment, or for some other reason, and you importante, you put up money for you release
did not appear, the first step is, upon motion of you pay premium, back up your commitment
the prosecution, the court will issue an order to with property. Parang insurance din ito eh.
confiscate the bond and the court will also direct
the bondsmen: Now halimbawa, nainis sila sa iyo? hindi ka
1. to produce the body of their principal nagabayad ng premium puwede ka man nila
within 30 days; AND arestuhin bah! The bondsmen can have you
2. to explain why the accused did not arrested without a warrant. So diretso ka sa jail.
appear before the court when first
required to do so. Lets go to last paragraph of Section 23. If you
are attempting to leave the Philippines, lalo na
Dalawa yan (1) produce him within 30 days, kung may hold departure order, even if you are
and (2) explain why you failed to produced him. on bail, you can be arrested without a warrant.
If you satisfy both conditions, no problem the Now, we will go to this question related to you
court will issue an order lifting the order of the constitutional right to travel:
Q: How do you reconcile Section 23 with the
Q: Suppose you failed to comply both or one constitutional right to travel?
of the conditions, what will happen? A: In the 1986 case of
A: The court will render judgement on the
bond. Meaning, the bonding company is now
liable on its bond.

So ang una, order of confiscation or forfeiture

of the bond. The second stage is, if the conditions
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MANOTOC vs. COURT OF Philippines. This is a necessary

APPEALS consequence of the nature and function of
142 SCRA 149 a bail bond. Rule 114, Section 1 of the
Rules of Court defines bail as the security
Manotoc V CA required and given for the release of a
person who is in the custody of the law,
Facts: that he will appear before any court in
Ricardo Manotoc Jr. was one of the which his appearance may be required as
two principal stockholders of Trans-Insular stipulated in the bail bond or recognizance.
Management Inc. and the Manotoc The condition imposed upon petitioner to
Securities Inc., a stock brokerage house. make himself available at all times
He was in US for a certain time. He went whenever the court requires his presence
home to file a petition with SEC operates as a valid restriction on his right
for appointment of a management to travel. Indeed, if the accused were
committee for both businesses. allowed to leave the Philippines without
Pendingdisposition of the case, the SEC sufficient reason, he may be placed beyond
requested the Commissioner of the reach of the courts.
Immigration not to clear Manotoc for
departure, and a memorandum to this
effect was issued by the Commissioner. ISSUE: How come if you are out
Meanwhile, six clients of Manotoc Securities on bail, you cannot leave the country
Inc. filed separate criminal complaints for without the permission of the court?
estafa against Manotoc. Manotoc posted HELD: A court has the power to
bail in all cases. He then filed a motion for prohibit a person admitted to bail
permission to leave the country in each from leaving the Philippines. This is a
trial courts stating as ground therefor his necessary consequence of the nature
desire to go to the United States, "relative and function of a bail bond. The
to his business transactions and condition imposed upon petitioner to
opportunities." His motion was denied. He make himself available at all times
also wrote the Immigration Commissioner whenever the court requires his
requesting the recall or withdrawal of the presence operates as a valid restriction
latter's memorandum, but said request was on his right to travel. (because this is
also denied. Thus, he filed a petition for one of the conditions of the bail bond
certiorari and mandamus before the Court you must be available whenever the court
of Appeals seeking to annul the judges' requires you to appear.)
orders, as well as the communication- Indeed, if the accused were
request of the SEC, denying his leave to allowed to leave the Philippines
travel abroad. The same was denied; without sufficient reason, he may be
hence, he appealed to the Supreme Court. placed beyond the reach of the courts.
He contends that having been admitted to If the sureties have the right to prevent
bail as a matter of right, the courts which the principal from leaving the state,
granted him bail could not prevent him more so then has the court from which
from exercising his constitutional right to the sureties merely derive such right,
travel. and whose jurisdiction over the
person of the principal remains
Issue: unaffected despite the grant of bail to
the latter.
Whether a court has the power to prohibit The court cannot allow the
a person admitted to bail from leaving the accused to leave the country without
Philippines. the assent of the surety because in
accepting a bail bond or recognizance,
Held: the government impliedly agrees that
it will not take any proceedings with
A court has the power to prohibit a person
the principal that will increase the
admitted to bail from leaving the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 100

risks of the sureties or affect their HELD: The phraseology in the

remedies against him. Under this rule, 1987 Constitution was a reaction to the
the surety on a bail bond or ban on international travel imposed
recognizance may be discharged by a under the previous regime when there
stipulation inconsistent with the was a Travel Processing Center, which
conditions thereof, which is made issued certificates of eligibility to
without his assent. travel upon application of an
interested party. (because during the
So, if your own bondsmen have the right to Marcos era, he created a travel
prevent you, with more reasons with the court processing agency headed by General
who has the complete jurisdiction over your Ver, where every Filipino who wants
person. But even if the court wants to grand you to travel abroad must be cleared by
permission to leave, gusto mong mag-tour, but that office.)
sabi ng bondsmen, Ayoko nga!, then the court Article III, Section 6 of the 1987
has no power to grant your request because the Constitution should by no means be
bondsmen must also agree. (Manotoc vs. CA, construed as delimiting the inherent
supra) power of the courts to use all means
necessary to carry their orders into
SILVERIO vs. COURT OF effect in criminal cases pending before
April 8, 1991
In other words, the court has always the
FACTS: Silverio was charged power to prevent an accused from leaving for
criminally for violation of Revised abroad. And that constitutional provision was
Securities Act. For more than two never interpreted to limit the power of the court.
years, there were series of Therefore, Silverio was citing the wrong
postponements of the arraignment provision. The philosophy does not apply to
scheduled therein. He could not be Silverio. Yaan!
arraigned because he had gone abroad
several times without the necessary SANTIAGO vs.
court approval. The prosecution got GARCHITORENA
fed up already. So upon motion of the December 2, 1993
prosecution, the trial court ordered the
DFA to cancel Silverios passport or to
deny the application to re-new the
passport. The Commission on FACTS: Several criminal cases
Immigration is also ordered to prevent were filed against Miriam Santiago
Silverio from leaving the country. arising from her tenure as
Now, according to Silverio, the Immigration Commissioner. Now, she
courts orders are unconstitutional was interviewed by the media and she
because under the Constitution, courts said that she is leaving in a few days
can impair the right of a citizen to for abroad because she was offered a
travel only on the ground of national fellowship grant by the Harvard
security, public safety or public health. University. Nabasa ng Sandiganbayan
Silverio: Is there an issue of national ang interview sa newspaper, Uy!
security? Wala man! Public safety? Aalis! Alright, Hold-Departure Order!
Wala man! Public health? Wala rin! Santiago questioned the order.
Therefore, you cannot prevent me
from travelling. ISSUE: May a court trying a
The SC here traced the history of criminal case issue a hold-departure
that constitutional provision. How did order motu propio to prevent the
that provision came out? accused from leaving the country even
if the prosecution did not file any
motion to issue such order?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 101

words of my doctors? Parang walang

HELD: YES. The court has the kumpiyansa!
power to issue motu propio a hold-
departure order. The hold-departure HELD: The Sandiganbayan acted
order is but an exercise of the courts properly. Respondent court had to
inherent power to preserve and to seek expert opinion because
maintain the effectiveness of its petitioner's motion was based on the
jurisdiction over the case and the advice of her physician. The court
person of the accused. could not be expected to just accept
the opinion of petitioner's physician in
resolving her request for permission to
MARCOS vs. travel. The subject lay beyond its
SANDIGANBAYAN competence and since the grant of the
247 SCRA (August 9, 1995) request depended on the verification
of the claim that petitioner was
FACTS: Criminal charges were suffering from a medical condition
filed against Imelda Marcos. In one of that was alleged to be serious and life
the cases, she was convicted by the threatening, the respondent court, we
Sandiganbayan. After conviction, she think, followed the only prudent
filed a motion for reconsideration and course available of seeking the opinion
while her motion was p ending, she of other specialists in the field.
filed a motion for leave to travel Indeed, when even in their own
abroad for treatment of hypertensive field of expertise (law) courts are
heart disease, uncontrolled angina allowed to invite amici curiae to shed
pectoris, and anterior myocardial light on recondite points of law, there
infarction. The motion was supported is no reason for denying them
by medical reports prepared by her assistance on other subjects.
physician and cardiologist and other Perhaps the best proof that she is
doctors in Makati Medical Center. not in the group is the fact that she ran
Presiding Justice Garchitorena in the last election for a seat in the
referred the issue to a committee of House of Representatives and won. It
cardiologists from Health Center of may be assumed that she waged an
the Philippines for extra opinion on arduous political campaign but
some questions among which was: Is apparently is none the worse for it.
Marcos condition fatal? Or, Is she in
danger of dying? The committee Meaning, even in law which is already your
submitted a report which was heard in field of expertise, the court are even allowed to
the presence of the two lawyers of seek the help of other lawyers, lalo na when it
Marcos. Report ng committee: she was comes to the field of medicine. And finally after
sick but the evidence not confirm the one year, she ran for congresswoman in Leyte
allegation that Mrs. Marcos is in the high and she won. Of course when you campaign, you
risk group of sudden cardiac death. In have to undergo a terrible schedule of campaigns.
other words, she is sick but she is not Eh bakit buhay ka pa? So in other words, you are
in danger of dyiing. not really in danger of dying. And she is very
With that, the Sandiganbayan, Ah much alive now.
hindi pala malala eh! So, wala! Motion
denied! Marcos went to the SC COJUANGCO vs.
attacking the Sandiganbayan order SANDIGANBAYAN
alleging that the court adopted an 300 SCRA 367 [1998]
unusual and unorthodox conduct by
motu propio conducting a third party FACTS: Cojuangco has several
asking the latter to give an opinion. pending cases before the
Marcos: Nobody is questioning. Bakit ba Sandiganbayan. And there is a travel
itong Sandiganbayan will not take the ban everytime he travels abroad.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 102

legality of the warrant issued

therefore, or from assailing the
ISSUE: Is there a need of hold- regularity or questioning the
departure orders everytime Cojuangco absence of a preliminary
travels abroad considering that many investigation of the charge against
him, provided that he raises them
things happened to Cojuangco? before entering his plea. The court
shall resolve the matter as early
HELD: We resolve in the as practicable but not later than
the start of the trial of the case.
negative. The travel band should be (n)
lifted, considering all the
circumstances now prevailing. It now Section 26 is a new provision.
becomes necessary that there be strong
and compelling reasons to justify the Q: If you post bail, are you under estoppel to
continued restriction on Cojuangcos question the validity of the arrest or the
right to travel abroad. Admittedly, all regularity or absence of a preliminary
of Cojuangcos previous requests to investigation?
travel abroad has been granted and A: Under Section 26, NO. The pivotal point is
that Cojuangco has always returned to for as long as you have not yet entered your
the Philippines and complied with the plea. Once you entered your plea, all the defects
restrictions imposed on him. are considered waived. But the posting of bail
The necessity of further denying alone is not considered as waiver to raise those
Cojuangcos right to travel abroad, issue.
with attendant restrictions, appears
less than clear. The risk of flight is
further diminished in view of
Cojuangcos recent reinstatement as
Chairman and Chief Executive of San
Miguel Corporation, though he has
now more justification to travel so as
to oversee the entire operations of that
company. In this regard, it has to be
conceded that his assumption of such
vital post has come at a time when the
current economic crisis has adversely
affected by international operations of
many companies, including San
The need to travel abroad
frequently on the party of Cojuangco,
to formulate and implement the
necessary corporate strategies and
decisions, could not be forestalled.
These considerations affecting
Cojuangcos duties to a publicly held
company, militate against imposing
further restrictions on Cojuangcos
right to travel abroad.
Rule 115

SEC. 26. Bail not a bar to RIGHTS OF ACCUSED

objections on illegal arrest, lack
of or irregular preliminary
investigation. An application for
or admission to bail shall not bar
the accused from challenging the
validity of his arrest or the
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I know you are not anymore a stranger to driver testified that at 10:30am, Sequerra and
many of these provisions because many of them him had a coffee together in the said bus
are already found under the Constitution. terminal. The judge in the trial court
convicted the accused.
Section 1 Rights of
accused at the trial In all
criminal prosecutions, the Issue:
accused shall be entitled to Whether or not the judge acted in
the following rights; grave abuse of discretion in convicting the
a.) To be presumed innocent accused despite the constitutional grant of the
until the contrary is proved presumption of innocence.
beyond reasonable doubt.
x x x x x
The decision of the judge is correct.
Paragraph [a] emphasizes the degree of proof
Confronted by the full panoply of state
in criminal cases.
authority, the accused is accorded the
presumption of innocence to lighten and even
Why is it in criminal case an accused enjoys
reverse the heavy odds against him. Mere
this presumption? Why does the law give the
accusation is not enough to convict him, and
accused the presumption of innocence? The SC
neither is the weakness of his defense. The
already answered that the reason is to make the
evidence for the prosecution must be strong
fight at least equal. In criminal cases, all the
per se, strong enough to establish the guilt of
resources are directed against the accused. It is
the accused beyond reasonable doubt.
the accused versus the People of the Philippines
Otherwise, he is entitled to be freed.
so you are fighting the government, and the
But as solicitous as the Bill of Rights is of the
government has all the resources at its command
accused, the presumption of innocence is not
the PNP, NBI, etc. Anong laban mo diyan? So at
an automatic or blanket exoneration. It is at
least para mag-tabla-tabla ng konti ang laban, the
best only an initial protection. If the
law will give certain presumptions in your favor.
prosecution succeeds in refuting the
In the case of
presumption, it then becomes the outlook of
the accused to adduce evidence that will at
PEOPLE vs. SEQUERRA least raise that inkling of doubt that he is
October 12, 1987 guilty. Once the armor of the presumption is
pierced, so to speak, it is for the accused to
take the offense and ward off the attack.


Facts: HELD: Confronted by the full

Sequerra was charged with murder for panoply of state authority, the accused
the death of Bonete. Both sides has 2 is accorded the presumption of
witnesses. The conviction of this case merely innocence to lighten and even reverse
relies to the testimonies of the witnesses for the heavy odds against him. Mere
there are no other evidences to prove the accusation is not enough to convict
innocence or guilt of the accused. A 15-year him, and neither is the weakness of his
old girl testified that she saw Sequerra shot defense. The evidence for the
the victim and then ran to the field in order to prosecution must be strong per se,
escape. The wife of the victim also testified strong enough to establish the guilt of
that Bonete was still able to walk and told him the accused beyond reasonable doubt.
that the person who shot him was Sequerra. A Otherwise, he is entitled to be freed.
paraffin test was conducted to the accused but But as solicitous as the Bill of
the result was negative. The accused sister Rights is of the accused, the
testified that she saw the accused in the bus presumption of innocence is not an
terminal boarding a bus to Abra. And the bus automatic or blanket exoneration. It is
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 104

at best only an initial protection. If the waived and those which cannot be waived.
prosecution succeeds in refuting the Medyo mahirap yan. But if you have a lot of
presumption, it then becomes the common sense, [meaning, ang common sense is common sa
outlook of the accused to adduce iyo!] malaman mo man ba! To be presumed innocent
evidence that will at least raise that pwede bang ma-waive ito? Mukang hindi
inkling of doubt that he is guilty. Once man... Yaan!
the armor of the presumption is
pierced, so to speak, it is for the c.) To be present and defend
in person and by counsel at
accused to take the offense and ward every stage of the proceedings,
off the attack. from arraignment to
promulgation of the judgment.
The accused may, however, waive
So the accused cannot rely forever in the his presence at the trial
presumption of innocence. This is a disputable pursuant to the stipulations
presumption. The prosecution can destroy that set forth in his bail, unless
his presence is specifically
presumption by presenting evidence that you are ordered by the court for
guilty and once the prosecution has presented purposes of identification. The
that you cannot anymore rely on this absence of the accused without
justifiable cause at the trial
presumption. It is now your duty to present of which he had notice shall be
evidence that you are innocent. considered a waiver of his
right to be present thereat.
b.) To be informed of the When an accused under custody
nature and cause of the escapes, he shall be deemed to
accusation against him. have waived his right to be
present on all subsequent trial
dates until custody over him is
Yes, you should know why you are there. It is regained. Upon motion, the
very awkward that you are charged without even accused may be allowed to
defend himself in person when
knowing what the charge is all about. That is why it sufficiently appears to the
there is an arraignment to make everything court that he can properly
formal. protect his rights without the
assistance of counsel.

Q: Can you waive the right to be informed of Paragraph [c] is quite important.
the nature and cause of the accusation against
him? This is a right to be present from arraignment
A: NO. It is not waivable because public to promulgation right yan eh! I want to be
interest is involved in this right, the public having there.
an interest in seeing to it that no person is
unlawfully deprived of his life or liberty. (U.S. vs. Q: But technically, do you have the obligation
Palisoc, 4 Phil. 207) to be there?
A: NO. This right is waivable because the law
There are certain rights of the accused that are says the accused may however waive his
waivable; there are certain rights that cannot be presence during the trial, unless the presence of
waived. For example: to be presumed innocent until the accused is specifically ordered by the court
the contrary is proved can you waive that? Ah for purposes of identification.
OK lang, you can presume me guilty! I dont
think the court will agree with that. That is not This was taken from the case of NINOY
where Ninoy was arrested and tried in a military
And mind you, there was a bar examination court and he refused to participate in the
in the past, where the examiner asked this proceedings. And issue now is, can he be forced
question among the rights of the accused by the court to appear? SC: YES, because how can
outline those which can be waived and cannot be he be identified if he will not appear? That is why
waived. So practically you have to know [a] [i]. it is now found in the Rules.
Its not only a question of enumerate the rights of
the accused but segregate those which can be
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 105

CARREDO vs. PEOPLE its witnesses which is vital for the conviction
183 SCRA 273 of the accused. Such waiver of a right of the
accused does not mean a release of the
accused from his obligation under the bond to
appear in court whenever so required. The
Facts: accused may waive his right but not his duty
or obligation to the court.
On February 3, 1983, petitioner was
charged with malicious mischief before the WHEREFORE, the petition is
Municipal Trial Court of Malabuyoc, Cebu DENIED.
City. He deposited a cash bond for his ISSUE: After arraignment he can
provisional liberty. Upon arraignment, he waive his presence during the trial,
entered a plea of not guilty and thereafter he but can he be ordered arrested by the
filed a written waiver of appearance. court for an appearance, upon
summons to appear for purposes of
At the hearing on August 14, 1985 the identification?
prosecution moved for the recall of its HELD: YES. Waiver of
principal witness for the purpose of identifying appearance and trial in absentia does
the accused-petitioner who was not then not mean that the prosecution is
present. Hence, a subpoena was issued to thereby deprived of its right to require
petitioner who failed to appear on said date. the presence of the accused for
purposes of identification by its
The defense counsel justified witnesses which is vital for the
petitioner's absence in that the latter's conviction of the accused. Such waiver
presence can no longer be required as he of a right of the accused does not
already filed a written waiver of appearance. mean a release of the accused from his
obligation under the bond to appear in
The municipal judge issued an order of court whenever so required. The
arrest of petitioner. accused may waive his right but not
his duty or obligation to the court.
So, you can waive your right but not your
Whether or not an accused who, after duty. That is one of the conditions in the bond
arraignment, waives his further appearance under Rule 114, Section 2 [b] the accused shall
during the trial can be ordered arrested by the appear before the proper court whenever so required by
court for non-appearance upon summons to the court or these Rules.
appear for purposes of identification.
Q: Now, what happens if during the trial, the
Held: accused did not show up but he was notified?
Can the trial proceed without him?
It is important to state that the A: YES, 2nd sentence of paragraph [c]
provides, The absence of the accused without
provision of the Constitution authorizing the
justifiable cause at the trial of which he had notice shall
trial in absentia of the accused in case of his
be considered a waiver of his right to be present
non-appearance after arraignment despite
thereat. This is taken from Article II, Section 14
due notice simply means that he thereby
(2), - Trial in absentia.
waives his right to meet the witnesses face to
face among others. An express waiver of
But take note that in trial in absentia, it
appearance after arraignment, as in this
assumes that:
case, is of the same effect. However, such
1. the court already acquired jurisdiction
waiver of appearance and trial in absentia
over your person;
does not mean that the prosecution is thereby 2. you were arrested; and
deprived of its right to require the presence of
the accused for purposes of identification by
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 106

3. you must first be arraigned. So at his trial unjustified. Escape can

arraignment is a prerequisite for trial never be a legal justification. His
in absentia to apply. escape will, legally speaking, operate
to his disadvantage as he will be
Q: What is the difference between these two unable to attend his trial, which will
sentences in [c]: The absence of the accused without continue even in his absence and most
justifiable cause at the trial of which he had notice shall likely result in his conviction.
be considered a waiver of his right to be present
thereat and when an accused under custody
escapes, he shall be deemed to have waived his right to
be present on all subsequent trial dates until custody
over him is regained?
A: In the first sentence, the accused is absent GIMENEZ vs. NAZARENO
without justifiable cause during the particular 160 SCRA 1 (1988)
trial date, and so the trial may continue. But he
can still appear in the next trial. He only waived
his right to be present on that date but he has not
waived his right to be present on subsequent trial Gimenez v. Nazareno
dates. He has not waived his right to present
evidence. Facts:
In the second sentence, iba eh. You escaped or
you jumped bail. You are not only waiving your On August 3, 1973, Samson Suan, Alex Potot, Rogelio
right to be present on this date but on all Mula, Fernando Cargando, Rogelio Baguio and the
herein private respondent Teodoro de la Vega Jr.,
subsequent dates. And therefore, there can be a
were charged with the crime of murder.
judgment against you when the prosecution rests.
On August 22, 1973 all of them were arraigned and
This trial in absentia was explained by the SC each of them pleaded not guilty to the crime charged.
in the case of Following the arraignment, the respondent judge, Hon.
Ramon E. Nazareno, set the hearing of the case for
September 18, 1973 at 1:00 o'clock in the afternoon.
All the acused including De la Vega, Jr., were duly
PEOPLE vs. AGBULOS informed of this.
222 SCRA 196 (1993)
Before the scheduled date of the first hearing, De la
Vega, Jr., escaped from his detention center and on
HELD: The prisoner cannot by
the said date, failed to appear in court. This prompted
simply escaping thwart his continued the fiscals (FISCAL CELSO M. GIMENEZ and
prosecution and possibly eventual FEDERICO B. MERCADO) handling the case to file a
conviction provided that: motion to proceed with the hearing of the case against
1. he has been arraigned; all the accused praying that de la Vega, Jr. be tried in
2. he has been duly absentia invoking the application of Section 19, Article
IV of the 1973 Constitution.
notified of the trial; and
3. his failure to appear is Pursuant to the provision, the lower court
unjustified. proceeded with the trial of the case but nevertheless
gave De la Vega, Jr., the opportunity to take the
(But how can the prosecution witness stand the moment he shows up in court. 1
establish that the accused has been
duly notified of the trial? How can you On November 6,1973, the lower court rendered a
decision dismissing the case against the five accused
notify a person who is hiding? And
while holding in abeyance the proceedings against the
how can you say that his failure to private respondent.
appear is unjustified?)
The fugitive is deemed to have On November 16,1973 the petitioners filed a Motion for
waived such notice precisely because Reconsideration questioning the decision of the trial
he has escaped, and it is also this court on the ground that it will render nugatory the
escape that makes his failure to appear constitutional provision on "trial in absentia" cited
earlier. However, this was denied by the lower court .
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 107

Hence, this petition. ... The absence of the accused without

any justifiable cause at the trial on a
Issues: particular date of which he had notice
shall be considered a waiver of his
1. Whether or not a court loses jurisdiction over right to be present during that trial.
an accused who after being arraigned, When an accused under custody had
been notified of the date of the trail
escapes from the custody of the law
and escapes, he shall be deemed to
2. whether or not under Section 19, Article IV of
have waived his right to be present on
the 1973 Constitution, an accused who has
been duly tried in absentia retains his right to said date and on all subsequent trial
present evidence on his own behalf and to dates until custody in regained....
confront and cross-examine witnesses who
testified against him

FACTS: The accused is arraigned,
1. No. The court did not lose jurisdiction over an then he escaped from jail. The
accused who after being arraigned, escapes prosecution moved for the trial to
from the custody of the law. Jurisdiction once
proceed without him trial in
acquired is not lost upon the instance of
parties but continues until the case is absentia. So the prosecution presented
terminated. Where the accused appears at the all its witnesses, and then it rested and
arraignment and pleads not guilty to the crime submitted the case for decision based
charged, jurisdiction is acquired by the court on the prosecutions evidence alone
over his person and this continues until the parang ex-parte ba. The judge said
termination of the case, notwithstanding his
escape from the custody of the law. NO, we will have to hear the accused.
Trial in absentia means the
prosecution can present its evidence
without him but the case will not be
2. No. The Court ruled that an escapee who has decided until we catch him because
been duly tried in absentia waives his right to we have to hear him. The prosecution
present evidence on his own behalf and to went to the SC.
confront and cross-examine witnesses who
testified against him. Upon the termination of a
trial in absentia, the court has the duty to rule ISSUE #1: Is the courts
upon the evidence presented in court. The interpretation of trial in absentia
court need not wait for the time until the correct?
accused who escape from custody finally HELD: NO. Definitely, that is not
decides to appear in court to present his
the meaning of trial in absentia.
evidence and cross examine the witnesses
against him. To allow the delay of proceedings Pagtapos na, eh di tapos na! why wait
for this purpose is to render ineffective the for the accused? However, there are
constitutional provision on trial in absentia. questions. Does an accused, who has
been duly tried in absentia retain his
rights to present evidence on his
behalf and to confront and cross-
Nor can it be said that an escapee who has been examine witnesses who testified
tried in absentia retains his rights to cross-examine
against him? The court said that,
and to present evidence on his behalf. By his failure to
appear during the trial of which he had notice, he Upon the termination of a trial in
virtually waived these rights. This Court has absentia, the court has the duty to rule
consistently held that the right of the accused to upon the evidence presented in court.
confrontation and cross-examination of witnesses is a The court need not wait for the time
personal right and may be waived. 10 In the same vein,
until the accused who escape from
his right to present evidence on his behalf, a right
given to him for his own benefit and protection, may be custody finally decides to appear in
waived by him. court to present his evidence and
cross-examine the witnesses against
Under Section 1 (c) of Rule 115 of the 1985 Rules on him. To allow the delay of proceedings
Criminal Procedure: for this purpose is to render ineffective
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 108

the constitutional provision on trial in The right to counsel may be waived by the
absentia. accused BUT the waiver must be clear, intelligent
and competent. (People vs. Ben, L-8320, Dec. 20,
ISSUE #2: Why is it that an 1955)
escapee who has been tried in absentia
does not retain his right to cross- But now, the guideline is clearer the accused
examine witnesses and to present can be allowed to defend himself in person when
evidence? How come those rights are it sufficiently appears to the court that he can properly
lost? protect his rights without the assistance of counsel.
HELD: By his failure to appear
during the trial of which he had Meaning, although he is not a lawyer, parang
notice, he virtually waived these marunong and may common sense naman the
rights. This Court has consistently court will say, Magbasa ka ng Constitution,
held that the right of the accused to Criminal Law, Evidence? Accused: Oo! Basahin ko
confrontation and cross-examination lahat yan! Pag-aralan ko! I will defend myself! Ah
of witnesses is a personal right and problema mo na yan. And of course, whether he
may be waived. In the same vein, his succeed we do not know. That is your risk. I think
right to present evidence on his behalf, there is something wrong with that accused.
a right given to him for his own
benefit and protection, may be waived Even lawyers when they have cases, they hire
by him. So an escape can be another lawyer. He will not depend on his own
considered a waiver. skills. Eh kung layman ka? I saw that happen. Ah
talagang kawawa ka. Kahit na siguro yung
ISSUE #3: If judgment is rendered prosecutor na pinaka-banga, yariin ka talaga
as to the said accused and chances are because he will invoke many rules, laws,
you would be convicted, would it not jurisprudence eh anong malay mo diyan?
violate his right to be presumed
innocent and right to due process? According to one statesmen, A lawyer who
HELD: NO, he is still presumed handles his own case has a FOOL for a client.
innocent. A judgment of conviction Did you understand that? Meaning: Sino ang
must still be based upon the evidence lawyer? Lawyer: Ako! Sino naman ang client?
presented in court. Such evidence Lawyer: Ako rin! Ah GAGO ka!
must prove him guilty beyond
reasonable doubt. Also, there can be Q: Now, I will expand the question: Sabi ng
no violation of due process since the offended party, Alright, ayaw ng akusado na may
accused was given the opportunity to abogado. Ako rin! Ayoko ko rin ng abugado! Ill be the
be heard. If the prosecution does not one to prosecute him! Eh meron mang private
present anything, he would be prosecutor? Ah hindi na kailangan ng private
acquitted. prosecutor! Siya personal, ako personal din! Can he
do that?
Now, the last sentence of paragraph [c]: A: Lets go back to Rule 110, Section 16 on
whether the rights of the accused and the
Upon motion, the accused offended party are same:
may be allowed to defend
himself in person when it
Where the civil action for
sufficiently appears to the
recovery of civil liability is
court that he can properly
instituted in the criminal
protect his rights without the
action pursuant to Rule 111,
assistance of counsel.
the offended party may
intervene by counsel in the
Take note that under the first sentence of [c] prosecution of the offense.
he can be present and defend in person and by
counsel. For example, ayaw niya ng abogado? I So their rights are different. The offended
will defend myself! Anong mangyari diyan? Is the party cannot intervene personally. The law will
right to counsel waivable by the accused? YES. not allow it. He must have a counsel. Sabihin
niya, Wala man akong pera pang-hire ng private
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 109

prosecutor? Eh di yung fiscal! The fiscal will be In the Philippines, we followed the English
the one to come in. That is why we have public Rule because of Rule 132, Section 6. However, it
prosecutors precisely to handle criminal cases. seems the American Rule on cross-examination is
applied, as an exception, when you are talking
d) To testify as a witness about cross-examining an accused in a criminal
in his own behalf but subject
to cross-examination on matters case because of paragraph [d] subject to cross-
covered by direct examination. examination on matters covered by the direct
His silence shall not in any examination.
manner prejudice him.

So we follow the American Rule on cross-

This is the right of the accused to testify on his
examination of the accused in criminal cases. Mas
own behalf. But he has no obligation to testify. If
limitado! Sabihin mo sa mga judges yan!
you connect this to the next right [e] to be exempt
Maraming hindi alam yan eh, because I knew of a
to be a witness against himself (that is why you
graduate here, ginamit niya talaga ang rule. Pag-
cannot compel him to testify) once he testifies
cross-examine ng prosecution sa kanyang cliente
on his own behalf, he waives the privilege against
who is the accused, object siya, Objection!
self-incrimination and he can be cross-examined
Prosecution: No! This is cross-examination! We are
like any other witness. He cannot say, I will
testing the credibility of the accused to testify. Sabi
testify but I refuse to be cross-examined. That would
niya, No! No! No! We are following the American
be unfair no?
Rule on cross-examination of the accused under Rule
115 and you are citing the English Rule the general
So, you are waiving your right against self-
rule under Rule 132! Sabi ng judge, Ano ba yang
incrimination if you testify in your own behalf
American Rule, English Rule?
because the law is clear subject to cross-
examination on matters covered by the direct
Naloko na! Sabi nung lawyer, Ganito pala ito!
examination. You can be cross-examined on
What I learned in law school is different from what I
matters covered by direct examination. Lets go
see! Talagang ganyan yan. Kailangang masanay
back to Evidence.
kayo diyan. Just like [Atty.] Ceniza. He was
talking to me last week. He was telling me of
Q: What is the rule on cross-examination?
what happened in Davao Oriental in one MTC.
A: Look at Rule 132, Section 6: Sabi niya, Ganito! Ganito! Parang niluto man
Upon termination of the
ako?! Talagang niluto ka! Ganyan gud yan diyan
direct examination, the witness sa Davao Oriental they knew each other! So you
may be cross-examined by the have to get used to it. Kapag matapang ka, file ka
adverse party as to any matters
stated in the direct
ng kaso. File-an mo silang lahat! That is the
examination, or connected beauty of law in the classroom, and the tragedy of
therewith, with sufficient law outside! Yaan!
fullness and freedom from
interest or bias, or the
reverse, and to elicit all Q: Now, what is the effect if the accused does
important facts bearing upon not want to testify on his own behalf?
the issue.
A: No unfavorable deduction can be drawn
from the neglect or refusal of an accused to
So, masyadong broad eh! You can be cross-
testify. (U.S. vs. Luzon, 4 Phil. 343) His silence is
examined on matters or connected with matters in
not in any manner prejudice him. (paragraph [d])
the direct examination with sufficient fullness
and freedom, etc. very liberal! It is called the
Meaning, if he refuses to testify, that should
ENGLISH RULE on cross-examination.
not be taken against him because of his right to
remain silent. He can testify if he wants to. Kung
The AMERICAN RULE on cross-examination
ayaw niya, puwede rin. Admission by silence is
is different the witness can be cross-examined
not generally applicable. ALTHOUGH there are
ONLY on matters stated in the direct
one or two decisions of the SC where it said that
if the evidence presented by the prosecution is
overwhelming, the accused should testify. One of
these cases is the 1998 case of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 110

PEOPLE vs. DELMENDO That is why his lawyers are already afraid
296 SCRA 371 [1998] that if the second envelope will be opened, the
evidence of the prosecution becomes
ISSUE: If the accused refuses to overwhelming, and there is no other choice but to
testify, can it be taken against him? Estrada to testify. So hanggat maaga pa, patayin
HELD: General Rule is NO. BUT na! But they were not anticipating that by killing
the SC said in this case, An adverse that evidence, it hastens Estradas downfall!
inference may also be deduced from
accuseds failure to take the witness
stand. While his failure to testify [e] To be exempt from being
compelled to be a witness
cannot be considered against him, it against himself.
may however help in determining his
guilt. The unexplained failure of the This is the right against self-incrimination
accused to testify, under a Nemo tenetur seipsum accusare.
circumstance where the crime
imputed to him is so serious that Take note that the right of the accused against
places in the balance his very life and self-incrimination is not limited to testimonial
that his testimony might at least help evidence. According to the SC, it refers not only
in advancing his defense, gives rise to to testimonial compulsion but also to production
an inference that he did not want to by the accused of incriminating documents and
testify because he does not want to things. (Villaflor vs. Summers, 41 Phil. 62) So you
betray himself. cannot subpoena his personal documents.
An innocent person will at once
naturally and emphatically repel an However, supposed you are asked to perform
accusation of crime, as a matter of self- a mechanical act, for example footprint, Ilagay
preservation, and as precaution mo nga yang paa mo diyan beh! Lets find out kung
against prejudicing himself. A pareho kayo ng size nung footprint. This is not
persons silence, therefore, particularly covered. Mechanical lang yan eh physical act.
when it is persistent, may justify an However, to produce specimen signature requires
inference that he is not innocent. Thus, concentration and intelligence. This is covered by
we have the general principle that the protection. (People vs. Otadora, 86 Phil. 244;
when an accused is silent when he Bermudez vs. Castillo, 64 Phil. 433; Beltran vs.
should speak, in circumstances where Samson, 53 Phil. 570)
an innocent person so situated would
have spoken, on being accused of a There was a tricky question in the Bar exam in
crime, his silence and omission are the past:
admissible in evidence against him.
Accordingly, it has been aptly said PROBLEM: The accused is charged with
that silence may be assent as well as falsification for writing a falsified letter. The
consent, and may, where a direct and prosecution present its evidence that this letter
specific accusation of crime is made, was written by the accused. The accused said,
be regarded under some No, that is not my handwriting. On cross-
circumstances as a quasi-confession. examination, he was asked to write on a piece of
paper as dictated. The defense object on the
ground of violation of the right to self-
And to my mind, that was the risk which incrimination. Rule on the objection.
Erap was taking during the impeachment trial ANSWER: The objection should be overruled.
because his lawyers never agree that Erap will The case is not covered by the right against self-
testify because lalong masisira si Erap kung mag- incrimination. He can be compelled because he
testify siya. Estrada is their greatest nightmare. testified that it is not his handwriting. From that
He is one person who cannot control his mouth moment he waived his right against self-
and once he starts talking, he does not know what incrimination. It is unfair that you say it is not
his saying.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 111

your signature and I have no way of telling you

to give me a specimen. (f) To confront and cross-
examine the witnesses against
him at the trial. Either party
Q: How is the right against self-incrimination may utilize as part of its
be waived? evidence the testimony of a
witness who is deceased, out of
A: The privilege is waivable by the accused or can not with due diligence
taking the stand and testifying as a witness or by be found in the Philippines,
freely answering the incriminating questions put unavailable, or otherwise
unable to testify, given in
to him. (U.S. vs. Grant, 18 Phil. 122; U.S. vs. Rota, another case or proceeding,
9 Phil. 426) Or by not objecting. judicial or administrative,
involving the same parties and
subject matter, the adverse
Q: What is the reason for the right of an party having the opportunity to
accused against self-incrimination? cross-examine him.
A: The rule was established on the ground of
public policy, because if the accused were required Q: Is the right to confront and cross-examine
to testify, he would be placed under the strongest the witnesses against him waivable?
temptation to commit perjury, and of humanity, A: YES as ruled by the SC in the case of
because it would prevent the extortion of GIMENEZ VS. NAZARENO, (160 SCRA 1), such
confession by duress. (U.S. vs. Navarro, 3 Phil. right is waived if the accused decides to run
143) So, if you require him to testify, chances are away, jumps bail, or disappears he is
he will lie. automatically waiving the right to confront and
cross-examine the witnesses against him.
That is why according to former U.S. SC
Justice Black, The accused should not be fried by Q: Now what is the reason behind this right?
his own fat. [e di cooking oil!] No sane man will burn Why is there such a right?
his own shirt nor he will get a stone to hit his own A: It is intended to prevent the conviction of
head. [eh kung gusto ko pala? Anong paki mo?] The privilege an accused upon mere depositions and affidavits;
against self-incrimination is one of the great to preserve the right of the accused to test the
landmarks in mans struggle to make himself recollection of witnesses against him; and to
civilized. We do not make even the most enable the court to observe the demeanor of the
hardened criminal sign his own death warrant or witnesses who are testifying. (Dowdell vs. U.S.,
dig his own grave. 221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413)

Our own SC also followed that kind of You have taken up Evidence. Those are the
explanation through Justice Reynato Puno in the important factors for the court to gauge the
1994 case of credibility of witnesses. Demeanor ba their
manner of testifying. How can the court exercise
that option if he does not even see the witnesses?
So more or less, that is the reason behind it. To
borrow the language of an American justice
231 SCRA 783
commenting on this issue, It ensures that
convictions will not be based on the charges of
HELD: The days of inquisitions
unseen and unknown, hence unchallengeable
brought about the most despicable
abuses against human rights. Not the
least of these abuses is the expert use
Another Justice, Justice Scalla, he is still an
of coerced confessions to send to the
incumbent of the Federal Supreme Court,
guillotine even the guiltless. To guard
describing this right, he said, It is always more
against the recurrence of this
difficult to tell a lie about a person to his face than
totalitarian method, the right against
behind his back, and even if the lie is told, it will
self-incrimination was ensconced in
often be told less convincingly. Meaning, it is
the fundamental laws of all civilized
easier to tell a lie ba against somebody if he is not
in front of you. Pero pagkaharap na, parang
alanganin kang magsinungaling eh. And even if
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you still tell a lie, it becomes not so convincing if these witnesses have to testify again in
you will lie about a person in front of you. But if the criminal case, practically they will
he is not there, you become very persuasive in have to repeat their testimony. The
your talk. These are the psychological reasons trouble is, in the meantime, some of
behind that. these witnesses died.

Q: What are the EXCEPTIONS to the right of Q: Can the testimony recorded in
the accused to confront and examine witnesses the civil case be now admissible in the
against him? criminal case when there is no more
A: The following: confrontation there?
1. Second portion of paragraph [f]: A: Yes. because that is the
exception, when the testimony of the
Either party may witness who is now deceased, given in
utilize as part of its
evidence the testimony of another case or proceeding, judicial or
a witness who is administrative, involving the same parties
deceased, out of or can and subject matter, the adverse party
not with due diligence be
found in the Philippines,
having the opportunity to cross examine
unavailable, or otherwise him.
unable to testify, given
in another case or
As a matter of fact, this is also
proceeding, judicial or
administrative, involving considered as one of the exceptions to
the same parties and the Hearsay Rule. It is the 11th
subject matter, the
adverse party having the
exception to the Hearsay Rule. Try to
opportunity to cross- connect this with Rule 130 on
examine him. Evidence. How many exceptions are
there to the Hearsay Rule? eleven (11)
Sometimes there is no choice. iyan eh starting from dying
Now, one good example where the declaration. That is the last exception
testimony of a witness is admissible testimony or deposition at a former
even if he does not appear in the trial trial or proceeding. Yaan! That is
is when the witness is about to die. considered as an exception to the right
Malapit ng mamatay, so you need to against confrontation.
take his testimony in advance. In civil
cases we call it deposition. In the 3. The exceptions to the hearsay rule are
criminal procedure, deposition is likewise exceptions to this right of the
called conditional examination of a accused. (U.S. vs. Gil, 13 Phil. 530)
witness. That is governed by Rule 119
Sections 12, 13, and 15. If there are 11 exceptions to the
hearsay rule, all of them are also
2. when there is a separate civil action exceptions to this. Like dying
filed against the accused by the declaration, how can you cross-
offended party and he made a examine iyung taong patay na. So
reservation there are 11 exceptions to the right to
confront and cross-examine the
Normally, the prosecution witnesses against him which are all
witnesses in the criminal case are also found in the rules on evidence.
the witnesses for the plaintiff in the
civil case. Assuming nauna ang trial
ng civil case, these witnesses testified Q: One last point, does the right to confront
during the trial of the civil case, they and cross-examine the witnesses against you,
were cross-examined by the lawyer of include your right to know their names and
the defendant who is also the accused addresses in advance?
in the criminal case. Now, under the A: NO, the accused has no such right because
law, when the criminal case is tried, the case of the prosecution might be endangered
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 113

if the accused were to know the prosecution dismissed as Clerk of Court of the Court of First Instance
witnesses in advance, for known witnesses might of Surigao del Sur when he was found to have incurred a
be subjected to pressure or cowered not to testify. deficiency in his accounts in the amount of P31,612.50.
(People vs. Palacio, L-13933, May 25, 1960) So, Petitioner filed a motion to quash the information for
you confront them during the trial, not now. failure of the same to include a certification by the
investigating fiscal that he conducted a personal
examination of the complainant and his witnesses during
(g) To have compulsory process the preliminary investigation in contravention of the
issued to secure the attendance requirement under Section 4, Rule 112 of the Rules of
of witnesses and production of
other evidence in his behalf.
Court which provides:
Sec. 4. Duty of the investigating fiscal. - If the
investigating fiscal finds cause to hold the respondent for
I think that is self-explanatory, that is one of
trial he shall prepare the resolution and corresponding
your rights as an accused. As a matter of fact, the
information. He shall certify under oath that he has
question has been asked in the bar.
examined the complainant and his witnesses, . .
Petitioner also filed a supplemental motion to
Q: Suppose my witness is somewhere there in
quash this time contending that the filing of the
Cagayan de Oro, can I secure a subpoena to information in this case is violative of his constitutional
compel him when under the rules on subpoena a rights to due process and the speedy disposition of the
witness is not bound if he resides more than 100 case against him, as enunciated in Tatad vs.
kilometers? Sandiganbayan since it took eleven years for him to be
A: That has already been answered in the charged.
VS. QUITAIN. The SC said that the 100-km Issue: WON the filing of the information violated
limitation (formerly 50 kms.) does not apply petitioners constitutional rights to due process and speedy
when you are talking of witnesses for the defense trial.
in a criminal case because of the Constitutional HELD:
right to have compulsory process issued to secure It must not be lost sight of that the concept of
speedy disposition of cases is a relative term and must
the attendance of witnesses in his behalf. That
necessarily be a flexible concept. Delays per se are
right cannot be precluded by provisions in the
understandably attendant to all prosecutions and are
Rules of Court.
constitutionally permissible with the monition that
the attendant delay must not be oppressive. Hence,
(h) To have speedy,
the doctrinal rule is that in the determination of
impartial and public trial. whether or not that right has been violated, the
factors that may be considered and balanced are:
There are actually three rights here: a.) the length of delay;
1. the right to a speedy trial; b.) the reasons for such delay;
2. the right to an impartial trial; and c.) the assertion or failure to assert such
3. the right to a public trial. right by the accused; and
the prejudice caused by the delay
Q: What do you mean by speedy trial?
Meaning, no postponements? not even one
HELD: It must not be lost sight of
A: NO. That is not the interpretation. In the
that the concept of speedy disposition
case of
of cases is a RELATIVE term and must
necessarily be a flexible concept.
Delays per se are understandably
220 SCRA 55
attendant to all prosecutions and are
constitutionally permissible with the
Alvizo vs. Sandiganbayan monition that the attendant delay
Facts: must NOT be OPPRESSIVE. [Hindi
Petitioner was charged with malversation of palagi. Pa-minsan-minsan okay lang
public funds in 1990 after PI , petitioner had been man ba] Hence, the doctrinal rule is
that in the determination of whether
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 114

or not that right has been violated, the less than the cold neutrality of an impartial
factors that may be considered and judge. (Villapando vs. Quitain, January 20, 1977)
balanced are:
d.) the length of delay; Q: Right to a public trial this is one of the
e.) the reasons for such delay; features of the accusatorial system. What is the
f.) the assertion or failure to reason for public trial?
assert such right by the A: The requirement of public trial is for the
accused; and benefit of the accused, that the public may see
g.) the prejudice caused by the that he is fairly dealt with and not unjustly
delay. condemned, and that the presence of spectators
may keep his triers keenly alive to a sense of
responsibility and to the importance of their
Q: What are the remedies of an accused whose functions. (1 Cooley, Constitutional Limitations,
rights to a speedy trial is being violated because p. 647)
the prosecution keeps on postponing the case?
How do you invoke this right to speedy trial? Meaning, everybody is on their toes. You
A: There are three (3) possible remedies: don't want to commit a mistake eh, mahihiya ka
eh, maraming nanonood. The judge, the
1. The accused should OPPOSE the prosecutor, the witnesses, the defense counsel,
postponement and insist on trial. If the everybody is careful because they are watched by
court denies the postponement and the public. Look at what happened in the
directs the prosecution to proceed and impeachment trial, everybody wants to be careful
cannot do so because he does not have there because, imagine how many millions of
the evidence, the accused should move people are watching you there on T.V. So, pati
for dismissal of the case on the ground ang mga senators di makatulog, some are sleepy
of failure to prosecute or insufficiency no, mapapahiya ka, you are ashamed na makita
of evidence. (Jaca vs. Blanco, 86 Phil. ka ng camera natutulog ka or you are using your
452; Gandicela vs. Lutero, 88 Phil. 299; cellphone.
People vs. Diaz, 94 Phil. 714) The
dismissal is equivalent to an acquittal I was reading an interview with Davide, he
and there is no way for that case to be was asked how he was able to cope with his
brought back because it will amount to hours full concentration iyan eh, because he has
double jeopardy. (People vs. Diaz, 94 to listen to every question because you do not
Phil. 714) know when an objection will come. Senators can
just relax and pretend they are listening. Davide
2. If the court grants the postponement has to make the ruling. So he has 5 or 6 hours of
everytime the fiscal asks for it, over full concentration. Katakot-takot daw na bitamina
the protest of the accused, the latters at kape. [bato?]
remedy is mandamus to compel
dismissal of the case; (Mercado vs. Please connect this provision on Speedy Trial
Santos, 66 Phil. 215) with Rule 119 Section 9 which is a new provision
taken from the Speedy Trial Act. What is the
3. If the accused is restrained of his heading of Section 9 Rule 119? Remedy where
liberty, his remedy is habeas corpus to accused is not brought to trial within time limits. So
obtain his freedom. (Mercado vs. there is such a provision. When your case will not
Santos, 66 Phil. 215; Conde vs. Rivera, move, the accused may question the delay why
45 Phil. 650) his case has not been set for trial. That is a new
provision taken from the Speedy Trial Act.

Q: When is trial impartial? [i] To appeal in all cases

allowed and in the manner
A: There should be no bias otherwise, the trial prescribed by law
will not be fair you are not given due process. If
the court or the judge has already pre-ordained
your guilt. Every litigant is entitled to nothing
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 115

There is something you will notice here all RULE 116

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

SECTION 1. Arraignment and

plea; how made. (a) The accused
must be arraigned before the
court where the complaint or
information was filed or
assigned for trial. The
arraignment shall be made in
open court by the judge or
clerk by furnishing the accused
with a copy of the complaint or
information, reading the same
in the language or dialect
known to him, and asking him
whether he pleads guilty or not
guilty. The prosecution may
call at the trial witnesses
other than those named in the
complaint or information.
x x x x x

You can even ask for a copy of the complaint

and information there, although normally the
lawyers ask for it in advance, they do not merely
ask during the arraignment, before the
arraignment may kopya na sila. Take note of the
last sentence:

The prosecution may call on

the trial witnesses other than
those named in the complaint or

Have you seen a criminal information?

Normally, at the last potion Witnesses for the
prosecution: Aquiatan, Tormon, Salesa, Balite and
others. Mayroon man usually iyan and others.
The prosecution will sometimes not name all. So
mayroong reservation.

Q: Now, can you question that reservation of

the fiscal? If you are the accused, can you
question that procedure?
A: YES, puwede. Whether it is possible for the
prosecution not to name everybody was the issue
in the case of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 116

PEOPLE vs. DE ASIS accused also did not object the absence of the
December 7, 1993 arraignment. This the case of

HELD: There is nothing that PEOPLE vs. CABALE

could prevent the prosecution from May 8, 1990
presenting witnesses in court not
listed in the information, as it is well FACTS: The accused was charged with robbery
settled that the court has the with homicide. They proceeded with pre-trial.
undisputed right to call on a witness Evidence were also being presented. when the case
whose name does not appear in the list was about to end, they noticed they have failed to
of the fiscal, unless the omission of conduct an arraignment. So they conducted an
said witness is intentional and tainted arraignment and then proceeded with the trial. The
with bad faith. The established rule is
validity of trial was then questioned.
that the prosecution may call unlisted
witnesses to testify.
Moreover, the purpose of the FACTS: Nag pre-trial, walang
listing of the names of the witnesses in arraignment. But the parties presented
the complaint or information is merely evidence. And when the case was
to avoid the presentation of surprise about to end they noticed, Teka muna,
witnesses and to enable the defense to wala pang arraignment ito, ah? O sige, i-
examine their record, morality and arraign! So, in other words, the
character, but once placed on the accused was arraigned when the trial
witness stand, it can no longer be was about to end, or I think already
disputed that the defense has already ended.
the opportunity to examine the
character and credibility of the ISSUE: Is the trial valid?
unlisted witness.
Finally, it is beyond question, that HELD: What is the purpose of
it is the prosecution's privilege to arraignment? to inform the accused
present such number of witnesses it of the nature of the charge against
deems sufficient. Their non-inclusion him. Now, if he does not know, how
in the list of witnesses is of no come he was able to participate in the
moment. In fact the omission of their trial? He was able to cross-examine the
names in the list of prosecution witnesses against him, he was able to
witnesses in the information is present witnesses. So, the defect
commonly practiced for their own became a formal defect.
protection at least until the termination We find that while the
of the case. arraignment of the appellant was
conducted after the cases had been
submitted for decision, the error is
(b) The accused must be
present at the arraignment and non-prejudicial and has been fully
must personally enter his plea. cured when counsel for the appellant
Both arraignment and plea shall entered into trial without objecting
be made of record, but failure
to do so shall not affect the that his client had not yet been
validity of the proceedings. arraigned. Said counsel had also the
full opportunity of cross-examining
Q: Now, what happens if a case is tried the witnesses for the prosecution.
without arraignment? There was, therefore, no violation of
A: The GENERAL RULE, that is irregular the appellant's constitutional right to
the proceedings are tainted with irregularity be informed of the nature and cause of
because arraignment is MANDATORY. (U.S. vs. the accusation against him.
Palisoc, 4 Phil. 207). HOWEVER, there was an
instance where the SC considered the
proceedings as valid where the lawyer of the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 117

Now, accused are arraigned sa trial when the A: Under paragraph [c], a plea of "Not guilty"
case is filed in court and about to be tried. Now, will be entered, or conditional plea, because a
how about preliminary investigation conducted plea must be absolute and unconditional.
by the MTC outside chartered cities, should the
accused be arraigned by the MTC judge? I saw such situations before Homicide,
where the accused was arraigned. Siyempre, on
Alam mo, I met that kind of situation years or about something with the use of a knife
ago, in one of the MTCs in the North. There was a stabbed so and so which caused his death.:
preliminary investigation and then I noticed an COURT: Kasabot ka?
arraignment. Actually the case was triable by the ACCUSED: Yes.
RTC. The purpose there (MTC) was only to COURT: What do you say? Guilty or
determine probable cause. So I asked, Mayroon Not guilty?
bang arraignment ang preliminary investigation? ACCUSED: Guilty inunahan man
Sabi nung abogado doon, Yes, mayroon. DEAN: niya ako ba.
Wala man sa Rules of Court? LAWYER: Iyan
man ang ginagawa ng mga judges dito. In other According to him, he is guilty. But actually, it
words, MTC judges conduct arraignment in is the deceased who tried to kill him first. It is
preliminary investigation matter of practice self-defense! so, within the not guilty plea din
daw you do not find a provision in the Rules yan. Pag-guilty, guilty! Hindi puwede iyung
saying yes or no. However, in 1993, I came across guilty pero may condition so not guilty.
a case where the SC commented on that the case Conditional pleas are not allowed. If you do that,
of we will enter a plea of not guilty for you.

ALISANGCO vs. TABILIRAN, Now, paragraph [d] of Section 1 is new:

224 SCRA 1 (d) When the accused pleads
guilty but presents exculpatory
evidence, his plea shall be
HELD: There is NO such thing as deemed withdrawn and a plea of
arraignment in a Preliminary not guilty shall be entered for
him. (n)
Investigation. There is no law or rule
requiring an arraignment during the
preliminary investigation. Under We will understand this more when we read
Section 1, Rule 116 of the Revised the case of PEOPLE vs. MENDOZA (231 SCRA
Rules of Court, the arraignment must 264). For example: You enter a plea of guilty. But
be conducted by the court having sabi mo, (sometimes this happens eh) may we be
jurisdiction to try the case on its allowed to present evidence to show mitigating
merits. circumstances? And then the court will allow
you. You will present evidence to prove you are
entitled to this or that mitigating circumstance
Q: Now, is there such a thing as arraignment para magbaba ang penalty.
by proxy?
A: Wala. The accused must be personally Q: Halimbawa pag-present ng evidence, na
present. He must enter his plea. prove na wala pala siyang kasalanan?
A: Then, under the rules, the plea of guilty
is automatically withdrawn, and the court will
(c) When the accused refuses order the substitution of not guilty because,
to plead or makes a conditional when you plead guilty, you are not supposed to
plea, a plea of not guilty
shall be entered for him. (1a)
present evidence to prove your innocence, that is
being inconsistent. But if you do it, then the court
Q: Halimbawa ayaw mag-enter ng plea? will change it immediately from guilty to not
COURT: What do you sayGuilty or Not guilty? guilty.
ACCUSED: No comment. I do not want to say
anything. Paragraphs [e], [f], and [g] are new:
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 118

(e) When the accused is included in the offense

under preventive detention, his charged. After arraignment but
case shall be raffled and its before trial, the accused may
records transmitted to the still be allowed to plead
judge to whom the case was guilty to said lesser offense
raffled within three (3) days after withdrawing his plea of
from the filing of the not guilty. No amendment of the
information or complaint. The complaint or information is
accused shall be arraigned necessary. (sec. 4, circ. 38-
within ten (10) days from the 98)
date of the raffle. The pre-
trial conference of his case
shall be held within ten (10)
days after arraignment. (n) Plea bargaining mag-tawaran ba! You are
charged with murder, homicide na lang [pliiiiiss].
(f) The private offended
party shall be required to Kung homicide, plead ako guilty para at least
appear at the arraignment for mababa ang sentensiya.
purposes of plea bargaining,
determination of civil
liability, and other matters According to the law if the prosecutor agrees
requiring his presence. In case and the offended party or the family of the
of failure of the offended deceased agrees, puwede. Both of them must give
party to appear despite due
notice, the court may allow the their consent.
accused to enter a plea of
guilty to a lesser offense So from Robbery, mahulog sa theft. Qualified
which is necessarily included
in the offense charged with the theft, maging simple theft. At least mababa di ba?
conformity of the trial Or, from attempted homicide to physical injuries
prosecutor alone. (cir. 1-89) na lang. Meaning, tawaran ba! That is allowed
(g) Unless a shorter period under the law provided the condition is, with the
is provided by special law or consent of the offended party and the prosecutor.
Supreme Court circular, the
arraignment shall be held
within thirty (30) days from That is why during the arraignment,
the date the court acquires according to the previous section paragraph [f],
jurisdiction over the person of
the accused. The time of the
the private offended party shall be required to
pendency of a motion to quash appear for purpose of plea-bargaining.
or for a bill or particulars or
other causes justifying
suspension of the arraignment
Q: Now suppose the offended party will not
shall be excluded in computing appear during the arraignment?
the period. (sec. 2, cir. 38- A: According to paragraph [f], in case of
failure of the private offended party to appear despite
due notice, the court may allow the accused to enter a
Lets go to paragraph [f], this is one of the plea of guilty to a lesser offense which is necessarily
important amendments here. included in the offense charged with the conformity of
the trial prosecutor alone. So, the consent of the
The private offended party is supposed to prosecutor would be enough.
appear at the arraignment for purposes of plea
bargaining. Plea bargaining is explained in Rule Sabi ngayon ng private offended party, But I
118 and also here in Section 2. Now, what do did not give my consent. Aba, kasalanan mo yan!
you mean by this Plea Bargaining? You should have appeared during the
arraignment. Wala ka man, so there is a valid
We will connect this right away to Section 2: plea-bargaining.

Now, I noticed that the 2000 Rules went back

SEC. 2. Plea of guilty to a
lesser offense At to the original provision of the 1964 Rules. Under
arraignment, the accused, with the 1964 rules, you are allowed to plead guilty to
the consent of the offended a lesser offense provided the lesser offense is
party and prosecutor, may be
allowed by the trial court to necessarily included in the offenses charged.
plead guilty to a lesser Murder to homicide; Theft is part of Robbery;
offense which is necessarily
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 119

Qualified theft, simple theft; from serious to less Of course, according to Judge
serious physical injuries; that is the condition Aujero, Teka muna, under the new
the lesser offense will be included in the offense Rules (citing the 1985 Rules) you can
charged. plead guilty to a lesser offense
whether or not included in the offense
But when the Rules were amended in 1985, charged, and even you, you have to
naiba it became a very controversial provision consider that attempted homicide is
because the 1985 Rules said that, You are related to homicide kaya lang two
allowed to plead guilty to a lesser offense, even if degrees lower. The law is very clear.
not included in the offense charged. Thats why Ano sabi ng Supreme Court? The
it created a lot of problems. Halimbawa, I am Supreme Court gave a lecture.
accusing you of serious physical injuries, you will
plead guilty to slander, there is no connection. HELD: The fact of death of the
But the language of the 1985 Rules as written, victim cannot by simple logic and
puwede. plain common sense be reconciled
with the plea of guilty to the lower
Now, the SC went back to the original offense of attempted homicide.
provision which is necessarily included in the (imagine, namatay, ngayon buhay na?
offense charged. how can you reconcile these two?) The
crime of homicide as defined in Article
After arraignment but before trial, the accused 249 of the Revised Penal Code
may still allowed to plead guilty to said lesser necessarily produces death; attempted
offense after withdrawing his plea of not guilty. homicide does not.
After you are arraigned you can still change your However, the law is not entirely
mind for as along as the prosecution has not yet bereft of solutions in such cases. In
commenced the presentation of evidence. And instances where a literal application of
there is no need of amending the complaint or a provision of law would lead to
information, automatic na yan, less paperworks injustice or to a result so directly in
for the prosecutor. opposition with the dictates of logic
and everyday common sense as to be
Now, lets look at some interesting cases unconscionable, the Civil Code,
decided by the Supreme Court. These cases were particularly Article 10, admonishes
decided before the amendment but we can see the judges to take principles of right and
philosophy is still there. justice at heart. (Meaning, when a
judge decides, do not look only at the
AMATAN vs. JUDGE AUJERO letter of the law, you look at the logic
[Adm. Matter No. RTJ-93-956] of your decision, the sense of right and
September 27, 1995 justice.) In case of doubt the intent is to
promote right and justice. Fiat justicia
FACTS: The accused was charged ruat coelum. Stated differently, when a
with homicide. So obviously, he killed provision of law is silent or
somebody. During the plea ambiguous, judges ought to invoke a
bargaining, sabi ng accused, We solution responsive to the vehement
would like to plead guilty to the lesser urge of conscience.
offense of attempted homicide (2 These are fundamental tenets of
degrees lower). The prosecutor and law. In the case at bench, the fact of
the widow agreed. So the court the victim's death, a clear negation of
rendered a decision on attempted. frustrated or attempted homicide,
Nagalit ang pamilya ng namatay ang ought to have alerted the judge not
brother, anong klase ito?! The only to a possibly inconsistent result
brother of the deceased brought a but to an injustice. (In other words, the
letter to Chief Justice Narvasa at that charge is he died, I will convict him
time, questioning the judge, Pwede for attempted homicide which
ba yan? assumes he did not die, how can you
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 120

reconcile? Dapat pag-isipan mo yan, FACTS: The accused is charged

look at the effects of your decision.) with, lets say, murder. Then the case
The failure to recognize such was tried and the prosecution rested.
principles so cardinal to our body of Afterwards, the accused argued, You
laws amounts to ignorance of the law have not proved any qualifying
and reflects respondent judge's lack of circumstance, so I will not present any
prudence, if not competence, in the evidence anymore. I will just plead to
performance of his duties. While it is a lesser offense of Homicide.
true, as respondent judge contends,
that he merely applied the rule to the ISSUE: Can plea bargaining still
letter, the palpably incongruous result be entertained at that stage? Because
ought to have been a red flag normally plea-bargaining is done
alerting him of the possibility of before the trial. Is that allowed?
injustice. The death of an identified
individual, the gravamen of the charge HELD: YES. There is nothing
against the defendant in the criminal wrong with that, provided the
case, cannot and should not be prosecution does not have sufficient
ignored in favor of a more expedient evidence to establish the guilt of the
plea of either attempted or frustrated accused for the crime charged. The
homicide. We have held before that if only basis for allowing a plea of guilty
the law is so elementary, not to know to a lesser offense is nothing more and
it or to act as if one does not know it, nothing less than the evidence already
constitutes gross ignorance of the law. in the record. There is nothing wrong
(Where the law is so basic and you do with that procedure.
not know it or pretend not to know it,
that is gross ignorance of the law.) Take note also that under Section 1 [f], the
What happens now to Judge private offended party should be required to
Aujero? Sinabon siya ng SC, Finally, appear in the arraignment precisely because of a
every judge must be the embodiment possible plea of guilty to a lesser offense which
of competence, integrity and requires his consent. That is why under the new
independence. A judge should not rule in Section 1 [f], if he does not appear, the
only be aware of the bare outlines of plea-bargaining can proceed and only the consent
the law but also its nuances and of the prosecutor is necessary. The consent of the
ramifications, otherwise, he would not offended party is no longer required according to
be able to come up with decisions the present rules on criminal procedure, i.e. if he
which are intrinsically fair. (Wala does not appear.
namang malice. Di naman sinadya or
bad faith that he was paid to do it, so Q: What happens if an accused enters a plea
the SC said,) Nonetheless, the case at of guilty?
bench stands unique because of the A: The GENERAL RULE is that there would
potently absurd result of respondent's be no trial anymore. No more presentation of
application of the law. evidence because the accused has already
admitted the crime.
I think he was just censured or fined a
minimal amount. Di naman sinadya, kaya lang Q: What is the implication of a plea of guilty?
pangit ba. Iyan ang sinasabi ko, how do you get A: That the accused is admitting the essential
quality judges? That is the big problem yung elements of the crime as charged in the
malawak ang pag-iisip. Yaan! information, and according to the SC, including
the aggravating circumstances. Especially now,
under the new Rules where the prosecution is
PEOPLE vs. VILLARAMA, JR. mandated to allege also the aggravating
210 SCRA 226 circumstances. So, as a general rule, judgment of
conviction can proceed immediately.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 121

HOWEVER, according to the SC, even if there Q: So when a person pleads guilty to a capital
is a plea guilty, certain facts alleged in the offense, can the court sentence him to death based
information are not deemed admitted. What are on his plea of guilty?
those facts that are deemed not admitted? These A: NO. The correct procedure is:
are: 1.) The court shall conduct a searching
1.) Facts not alleged in the complaint or inquiry into the voluntariness and full
information; consequences of his plea. The court
2.) Mere conclusions of facts; must determine whether he really
3.) The jurisdiction of the court. So even if understood it and its effects;
I plead guilty, I can still question later 2.) Even if the accused pleads guilty, the
the jurisdiction of the court; court will still require the prosecution
4.) The sufficiency of the complaint or to prove the guilt of the accused. Thus,
information is not considered even if the plea of guilty is not accepted
there has been a plea of guilty. anymore in capital offense. That is
only corroborative because the
Q: So what happens if I plead guilty and it prosecution is still required to present
turns out there is no crime? evidence;
A: There can be no conviction because the 3.) The accused may still present evidence
sufficiency of the complaint or information is not in his behalf.
admitted by a plea of guilty.

On the other hand, when the accused pleads THE COURT SHALL CONDUCT A
not guilty, then the issues are joined and the case SEARCHING INQUIRY INTO THE
is ready for trial. That is the counterpart of an VOLUNTARINESS AND FULL
answer in civil procedure because there is no COMPREHENSION OF THE CONSEQUENCE
Answer in criminal cases. Your plea is your OF HIS PLEA

As already emphasized in some cases, when What do you mean by the court shall conduct a
you enter a plea of not guilty, you are considered searching inquiry into the voluntariness and full
to have waived any previous defect, like lack of comprehension of the consequence of his plea?
preliminary investigation or validity of arrest. Section 3 is actually taken from decided cases,
Those things are deemed cured by entering a plea even before the 1987 Constitution. Prior to the
of not guilty. 1987 Constitution, there were so many people
sentenced to death based only on a plea of guilty.
Now, going back to the GENERAL RULE, The SC said, di pwede ito. Thus, all these
when a person pleads guilty, no more trial, he can jurisprudence are culled and embodied in Section
be convicted, EXCEPT when he is charged with a 3. Of course it became dormant for a while when
capital offense. Lets read Section 3: the death penalty could not be imposed. But na
naman eh. Its now back to life [alleluia!] because of
the restoration of death penalty.
SEC. 3. Plea of guilty to
capital offense; reception of I remember before, there was even a time
evidence. When the accused
pleads guilty to a capital before the 1987 Constitution, where:
offense, the court shall
conduct a searching inquiry JUDGE: Guilty or Not guilty?
into the voluntariness and full
comprehension of the ACCUSED: Guilty.
consequences of his plea and JUDGE: Do you understand what you
shall require the prosecution
to prove his guilt and the
are doing by pleading guilty?
precise degree of culpability. ACCUSED: Yes.
The accused may present JUDGE: Do you understand by pleading
evidence in his behalf. (3a)
guilty, you are admitting all the
elements of the crime as alleged
in the complaint?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 122

ACCUSED: Yes. involved since he might be admitting

JUDGE: And still you are pleading his guilt before the court and thus
guilty? forfeit his life and liberty without
ACCUSED: Yes. having fully understood the meaning,
significance, and consequences of his
Sabi ng SC: Kulang ang mga tanong mo! Why plea. Moreover, the requirement of
are you asking those questions? What does the taking further evidence would aid the
layman know about those elements of the crime? Supreme Court on appellate review in
Use simple language para maintindihan niya! determining the propriety or
impropriety of the plea.
Now, if we follow the jurisprudence after the
1987 Constituition, lalung mahirap! Ito yung
mahirap shall conduct a searching inquiry into the PEOPLE vs. ALICANDO
voluntariness and full comprehension of the 251 SCRA 293
consequence of his plea. That is a very general term
and we do not really know what is really the HELD: To show the voluntariness
effect of that or its scope. If we will follow all the of the plea of guilt of the accused and
guidelines of the SC, it would seem that all judges that the courts questions demonstrate
will not pass the test of conducting a searching the accused full comprehension of the
inquiry. There are some tests like the case of consequences of his plea, the records
must reveal information about the
PEOPLE vs. ALBERT personality profile of the accused
251 SCRA 136 which can serve as a trustworthy
index of his capacity to give a free and
HELD: The controversy over informed plea of guilt. The age, socio-
improvident pleas of guilty dates back economic status and educational
to the early years of the American background of the accused must be
administration, developed into a furor plumbed by the trial court.
over the succeeding years, subsided
during the martial law regime, and So, you must get the personality profile of the
was sidelined but occasionally accused the age, socio-economic status as well
invoked when the 1987 Constitution as his educational background. Now, are the
proscribed the imposition of capital judges doing that? I dont think so.
punishment. With the return of the
death penalty for heinous crimes, it is PEOPLE vs. ESTOMACA
high time for the trial courts to review 256 SCRA 421 (1996)
and reflect upon the jurisprudential
and statutory rules which evolved HELD: Although there is no
over time in response to the injustice definite and concrete rule as to how a
created by improvident pleas trial judge may go about the matter of
acknowledging guilt, at times a proper "searching inquiry," it would
belatedly discovered under the be well for the court, for instance, to
judicial rug, if at all. require the accused to fully narrate the
The rationale behind the rule is incident that spawned the charges
that courts must proceed with more against him, or by making him reenact
care where the possible punishment is the manner in which he perpetrated
in its severest form death for the the crime, or by causing him to furnish
reason that the execution of such a and explain to the court missing
sentence is irrevocable and experience details of significance.
has shown that innocent persons have The trial court should also be
at times pleaded guilty. The convinced that the accused has not
primordial purpose then is to avoid been coerced or placed under a state of
improvident pleas of guilt on the part duress either by actual threats of
of an accused where grave crimes are physical harm coming from
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 123

malevolent or avenging quarters and So if we follow that guideline: MURDER, or

this it can do, such as by ascertaining other heinous crime; Guilty! Disregard it! Trial!
from the accused himself the manner So, bale wala yung plead of guilty because you
in which he was subsequently brought still have to conduct a trial just the same.
into the custody of the law; or whether
he had the assistance of competent
counsel during the custodial and SEC. 4. Plea of guilty to
non-capital offense; reception
preliminary investigations; and, of evidence, discretionary.
ascertaining from him the conditions When the accused pleads guilty
under which he was detained and to a non-capital offense, the
court may receive evidence from
interrogated during the aforestated the parties to determine the
investigations. Likewise, a series of penalty to be imposed. (4)
questions directed at defense counsel
as to whether or not said counsel had Q: Can there be reception of evidence if the
conferred with, and completely accused enters a plea of guilty to a non-capital
explained to the accused the meaning offense?
of a plea and its consequences, would A: YES. There is no need for the presentation
be a well-taken step along those lines. of evidence but if the court wants it, pwede rin,
the court can till require it. That is why reception
So, the judge must be very, very patient in of evidence is discretionary to determine the
conducting a searching inquiry. Kung sundin mo penalty to be imposed.
ito, it may take one or two days. Just take note
that we are talking about capital offense. PEOPLE vs. MENDOZA
231 SCRA 264
According to one commentator:
Before, the plea of guilty constituted FACTS: The accused was charged
the main evidence of guilt and the with Robbery before the RTC of
evidence taken during the further Malaybalay, Bukidnon. During the
inquiry was merely to aid the trial arraignment, the accused pleaded
court in exercising its discretion as to guilty. Instead of pronouncing
whether the lighter or graver penalty judgment, the court conducted trial.
is to be imposed. That is the original The prosecution failed to present
principle. But under the new evidence that the accused is guilty of
procedure, a plea of guilt is only a the crime, so Judge Mendoza acquitted
secondary basis, the main proof being the accused. The prosecution argued
that which the court requires the that the judge should not have
prosecution to establish the guilt of the acquitted him because he already
accused. The plea of guilty by the pleaded guilty.
accused can only be used as
supporting evidence for a finding of ISSUE: Was the acquittal of the
culpability. (So, baliktad no?) In short, accused proper?
once an accused, in a charge of capital
offense enters a plea of guilty, a HELD: YES. Under the Rules,
regular trial shall have to be when the accused pleads guilty to a
conducted. Just the same as if no such non-capital offense the court may
plea of guilty was not entered. The receive evidence from the parties to
only effect of a plea of guilty, if ever, is determine the penalty to be imposed.
to serve as an additional mitigating This rule is at most directory.
circumstance in case the penalty Was the judge correct? It will
imposable is less that an indispensable certainly be a clear abuse of discretion
penalty and if the guilty plea is on the part of the judge to persist in
entered before the prosecution starts holding the accused bound to his
to present evidence. admission of guilt and sentencing him
accordingly when the totality of the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 124

evidence points to his acquittal. There 1.) The court must inform the accused
is no rule which provides that simply that it is his right to have an attorney
because the accused pleaded guilty to before being arraigned;
the charge that his conviction 2.) After giving him such information, the
automatically follows. court must ask him if he desires the
However, there is something aid of an attorney;
wrong here because the records will 3.) If he desires but is unable to employ
show that he pleaded guilty and yet an attorney, the court must assign an
he was acquitted, so let us harmonize attorney de oficio to defend him; and
the record. The correct procedure, 4.) If the accused desires to procure an
according to the SC, is for the judge to attorney of his own, the court must
order the withdrawal of the plea of grant him a reasonable time therefor.
guilty and substitute it with a plea of
not guilty. SEC. 7. Appointment of counsel
de oficio. The court, considering
the gravity of the offense and the
difficulty of the questions that
This principle has been embodied in Section may arise, shall appoint as counsel
de officio such members of the bar
1[d] When the accused pleads guilty but presents in good standing who, by reason of
exculpatory evidence, his plea shall be deemed their experience and ability, can
withdrawn and a plea of not guilty shall be entered for competently defend the accused. But
in localities where such members of
him. (n) the bar are not available, the
court may appoint any person,
SEC. 5. Withdrawal of resident of the province and of
improvident plea of guilty. good repute for probity and
At any time before the judgment ability, to defend the accused.
of conviction becomes final, (7a)
the court may permit an
improvident plea of guilty to SEC. 8. Time for counsel de
be withdrawn and be substituted oficio to prepare for arraignment.
by a plea of not guilty. (5) Whenever a counsel de oficio is
appointed by the court to defend
the accused at the arraignment, he
Q: Can a plea of guilty be withdrawn? shall be given a reasonable time to
A: YES. consult with the accused as to his
plea before proceeding with the
arraignment. (8)
Q: Suppose there is already a judgment of
conviction, can he still withdraw? SEC. 9. Bill of particulars.
A: YES, as long as the judgment of conviction The accused may, before
arraignment, move for a bill of
is not yet final. particulars to enable him properly
to plead and prepare for trial. The
SEC. 6. Duty of court to motion shall specify the alleged
inform accused of his right to defects of the complaint or
counsel. Before arraignment, information and the details
the court shall inform the desired. (10a)
accused of his right to counsel
and ask him if he desires to
have one. Unless the accused is Section 9 is similar to Rule 12 on bill of
allowed to defend himself in particulars. If the complaint is vague and
person or has employed counsel ambiguous, the defendant in a civil case can more
of his choice, the court must
assign a counsel de officio to for a bill of particulars. Counterpart, if the
defend him. (6a) allegations in the information are also vague and
ambiguous, I cannot understand it, so I cannot
Section 6 should be read with the ruling of the intelligently enter my plea. The accused, before
SC in the leading case of PEOPLE VS HOLGADO arraignment, can move for a bill of particulars to
(85 Phil. 752). In the said case, SC enumerated the enable him to prepare properly for the trial. Then
duties of the court when the accused appears he must specify the defects. Civil case, pareho.
before it without a lawyer. The following are the
duties of the court: CINCO vs. SANDIGANBAYAN
202 SCRA 726
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 125

material to any matter involved

in the case and which are in
FACTS: A motion for bill of the possession or under the
particulars was filed by the lawyer of control of the prosecution,
the respondent in the fiscals office police, or other law
investigating agencies. (11a)
when the case was under preliminary
investigation. (In preliminary
Section 10 deals also with a mode of discovery
investigation, you are given the
production and inspection of material evidence in the
affidavit of the complainant and his
possession of the prosecution. Not only that, the
witnesses. And then you are given 10
accused can have access to all evidence in the
days to submit your counter-
possession not only of the prosecution but
affidavits.) Here, the affidavit is vague
including those in the possession and control of
according to the accused, so he is filing
the police and other law investigating agencies.
a bill of particulars. He wanted to
Take note, if we follow the case of LIM VS FELIX,
compel the complainant to make his
JR, when the case is filed by the fiscal, meron
affidavit clearer.
namang kaunting ebidensya na dun, so that, the
judge can review and find out if there is probable
ISSUE: Is Section 9 applicable
cause, but it is not really all.
when the case is still in the fiscals
office for preliminary investigation?
Q: So if the accused wants to see other
evidence and the fiscal refuses, can the accused
HELD: NO. It is only applicable
file a motion to compel the fiscal to reveal?
when the case is already in court for
A: YES, because take note of Rule 112, Section
trial or arraignment.
8 [b], the records of the preliminary investigation
But suppose during the
do not form part of the records of the case when it
preliminary investigation, I cannot
reaches the court. That is why your remedy is to
understand what the complainant is
have them inspected. Let us good back to Rule
saying in his affidavit? The SC said,
112, Section 8:
that is simple! If you cannot
understand what the complainant is Rule 112, Section 8[b] Record
saying in his affidavit, chances are, the of preliminary investigation. The
fiscal also will not understand it. And record of the preliminary
investigation, whether conducted by
consequently, he will dismiss the case. a judge or a prosecutor, shall not
Eh di mas maganda! Wag ka nalang form part of the record of the
mag-reklamo! [gago!] case. However, the court, on its
own initiative or on motion of any
party, may order the production of
the record or any of its part when
SEC. 10. Production or necessary in the resolution of the
inspection of material evidence case or any incident therein, or
in possession of prosecution. when it is to be introduced as an
Upon motion of the accused evidence in the case by the
showing good cause and with requesting party.
notice to the parties, the
court, in order to prevent
surprise, suppression, or
Another interesting case here on Section 10 is
alteration, may order the the ruling in
prosecution to produce and
permit the inspection and
copying or photographing of any
written statement given by the 247 SCRA
complainant and other witnesses
in any investigation of the
offense conducted by the
FACTS: You know the story of
prosecution or other Hubert Webb, the convict in that
investigating officers, as well Vizconde rape-homicide case.
as any designated documents,
papers, books, accounts,
Somehow the defense discovered that
letters, photographs, object, there were two (2) affidavits of Jessica
or tangible things not Alfaro (the State witness) which were
otherwise privileged, which
constitute or contain evidence executed before the NBI. Of course
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 126

what was presented by the NBI to the In laying down this rule, the
DOJ was only one. So, the defense Court is not without enlightened
filed a motion to compel the NBI to precedents from other jurisdictions.
produce the other affidavit. This The rationale is well put by Justice
happened when the case was under Brennan in Brady society wins not
preliminary investigation. only when the guilty are convicted but
when criminal trials are fair. Indeed,
ISSUE: Can you apply Section 10 prosecutors should not treat litigation
when the case is still in the fiscals like a game of poker where surprises
office? Because if you read Section 10, can be sprung and where gain by guile
it applies when the case is already in is not punished.
court. The same with Section 9. Can
the mode of discovery under the Rules
of Court in criminal cases apply So, the prosecutor should not hide anything
during the preliminary investigation? because his job is not to convict but to see to it
that justice is done. Ive been reading lately SC
HELD: The issue is novel in this recent decisions along that line na naman, where
jurisdiction as it urges an expansive the SC said that your job Mr. Fiscal is not to
reading of the right of persons under convict, but seek that justice is done. When you
preliminary investigation. It deserves have no evidence, do not file. When there is no
serious consideration. So, the SC was evidence in court, you move to dismiss the case
intrigued: can you invoke the rights of ikaw mismo! Do no insist in trying the case.
an accused during the trial when he is
still under preliminary investigation? And there was one decision where the SC
To start with, our rules in said, What is the greatest achievement or moment of
criminal procedure does not expressly a prosecutor? Some may say when pagna-convict
provide for discovery proceedings niya ang accused. That is an achievement but is it
during a preliminary investigation not the greatest on your part. The greatest
stage of the criminal proceeding. But achievement on you part is when you ask the
the SC noted, This failure to provide court to dismiss the case because there is no
discovery procedure during evidence to convict the accused. That is the
preliminary investigation does not, greatest achievement because that is your job to
however, negate its use by a person see to it that justice is done.
under investigation when
indispensable to protect his
constitutional fight to life, liberty and SEC. 11. Suspension of
arraignment. Upon motion by
property. Preliminary investigation is the proper party, the
not too early a stage to guard against arraignment shall be suspended
any significant erosion of the in the following cases:
(a) The accused appears to
constitutional right to due process of a be suffering from an unsound
potential accused. that the finding of a mental condition which
probable cause by itself subjects the effectively renders him unable
to fully understand the charge
suspects life, liberty and property to against him and to plead
real risk of loss or diminution. The fact intelligently thereto. In such
that the law is silent does not mean case, the court shall order his
mental examination and, if
that it does not apply. (Meaning, even necessary, his confinement for
if it is under preliminary investigation, such purpose;
your liberty is already in danger.) The (b) There exists a
prejudicial question; and
right to discovery is rooted on the (c) A petition for review of
constitutional protection of due the resolution of the
process which we rule to be prosecutor is pending at either
the Department of Justice, or
operational even during the the Office of the President;
preliminary investigation of potential provided, that the period of
suspension shall not exceed
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 127

sixty (60) days counted from 2. Suppose he became insane when the
the filing of the petition with
the reviewing office. (12a) case is set for arraignment but he was
normal when he committed the crime?
What are the grounds for suspending an Then we apply Rule 116, Section 11
arraignment? There are three and lets go over you move for the suspension of the
them one by one. arraignment.

(a) The accused appears to 3. Suppose he became insane after the

be suffering from an unsound arraignment? You move to postpone
mental condition which
effectively renders him unable the trial because he cannot adequately
to fully understand the charge defend himself if he is crazy. The trial
against him and to plead should be suspended.
intelligently thereto. In such
case, the court shall order his
mental examination and, if 4. Suppose he became insane when he is
necessary, his confinement for already convicted and serving
such purpose;
sentence? Let us go back to the Penal
Code, Article 86 it is a ground for a
When the accused is in an unstable condition,
motion for the suspension of the
you cannot properly, intelligently inform him of
execution of the sentence.
the nature of the charge. So example: Buang,
unstable condition, Let us suspend the
Second ground:
arraignment. Let us wait for his recovery and as (b) There exists a
long as he is not yet recovered, the arraignment is prejudicial question;
suspended indefinitely. For as long as he has not
recovered, the arraignment remains suspended. When there is a prejudicial question. Just
connect this with Rule 111, Section 6 what do
BAR QUESTION : What are the legal effects of you mean by a prejudicial question, the elements,
insanity or unsound mental condition of the when do you raise them. When the case is in
accused? court, suspend the trial, suspend the arraignment,
A: It DEPENDS as to when was he insane lets wait for the civil case to be decided.
1. Suppose he was insane at the time he
committed the crime but now he is The third ground is new:
OK, then that is not a ground for the
suspension of the arraignment, not (c) A petition for review of
the resolution of the
even a ground for a motion to quash prosecutor is pending at either
unless the information admits that he the Department of Justice, or
is insane when he committed the the Office of the President;
provided, that the period of
crime in which case you can move to suspension shall not exceed
quash under Rule 117, Section 3 [h] sixty (60) days counted from
that the information contains the filing of the petition with
the reviewing office.
averments which in truth would
constitute a legal excuse or
Based on existing jurisprudence, when the
prosecutor says File the case, technically, the
But there is no prosecutor crazy
accused can appeal that although generally that is
enough to file an information
not appealable because of the MOGUL doctrine.
admitting that the accused was insane
As a general rule, the DOJ should no longer
when he committed the crime. That is
entertain an appeal from the resolution of the
tantamount to admitting that he is
fiscal stating that the case should be filed because
exempt from liability. It is the defense
the court may not follow the DOJ. That is what
who will prove insanity. So what is the
happened in the case of Mogul. Sabi ng DOJ, no
effect? You enter your plea of not
probable cause, Fiscal, you dismiss Sabi ng court,
guilty and lets go to trial and I will
No, Fiscal, you continue!
prove insanity as my defense.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 128

The problem is when the case reaches the

court, in most cases, the lawyer of the accused
will move for the suspension of the arraignment
Man has not invented a reliable compass by
because he will say, I have a pending petition for which to steer a marriage in its journey over
review of the resolution in the DOJ. According to troubled waters. Laws are seemingly inadequate.
the circular of the DOJ, the petition for review can Over time, much reliance has been placed in the
only be entertained if the accuse has not been works of the unseen hand of Him who created all
arraigned, kung na-arraign na, wala na. But things.
Who is to blame when a marriage fails?
normally courts will honor that. That court will
Love is useless unless it is shared with
say, alright, let us suspend and wait for the another. Indeed, no man is an island, the cruelest
resolution of the DOJ. That is why it is a ground act of a partner in marriage is to say I could not
for suspension. have cared less. This is so because an ungiven
self is an unfulfilled self. The egoist has nothing
but himself. In the natural order, it is sexual
The trouble is this: how long does it take for
intimacy which brings spouses wholeness and
the DOJ to resolve it? If they can resolve it within oneness. Sexual intimacy is a gift and a
2 or 3 years, you are lucky, the case cannot go on participation in the mystery of creation. It is a
because the DOJ is not done yet. This has been function which enlivens the hope of procreation
the cause of delays. Thats why the new rules and ensures the continuation of family
says, provided, the suspension will not exceed relations.
60 days counted from the filing of the petition Justice Torres, Jr. on the issue of psychological
with the reviewing office. This is tantamount to incapacity
the SC indirectly telling the DOJ or the reviewing
office (Provincial State Prosecutor) na bilisan CHI MING TSOI vs. COURT OF APPEALS
ninyo. If the petition is not acted within that G.R. No. 119190, January 16, 1997
period, lets proceed with the arraignment,
bahala na kayo dyan!

At least there is now a deadline. And that is

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


Late one night, Jack took a short cut through

a graveyard. Hearing a tapping sound, he felt a
little scared, but kept going. As the tapping grew
louder, he became more frightened. Finally, he
found a man chiseling at a gravestone.
Thank goodness, Jack said to the man with
relief. You gave me quite a fright. What are you
They spelt my name wrong, replied the

Source: Readers Digest, January 2001

I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 129

Rule 117 (a) That the facts charged

do not constitute an offense;
MOTION TO QUASH (b) That the court trying
the case has no jurisdiction
over the offense charged;
(c) That the court trying
the case has no jurisdiction
SECTION 1. Time to move to over the person of the accused;
quash. At any time before (d) That the officer who
entering his plea, the accused may filed the information had no
move to quash the complaint or authority to do so;
information. (1) (e) That it does not conform
substantially to the prescribed
SEC. 2. Form and contents. (f) That more than one
The motion to quash shall be in offense is charged except when
writing, signed by the accused or a single punishment for various
his counsel and shall distinctly offenses is prescribed by law;
specify its factual and legal (g) That the criminal action
grounds. The court shall consider or liability has been
no ground other than those stated extinguished;
in the motion, except lack of (h) That it contains
jurisdiction over the offense averments which, if true, would
charged. (2a) constitute a legal excuse or
justification; and
(i) That the accused has
been previously convicted or
In civil cases, within the time for but before acquitted of the offense
charged, or the case against
filing the answer to the complaint, the defendant him was dismissed or otherwise
may move to dismiss the case on certain specified terminated without his express
grounds under Rule 16. In criminal procedure consent. (3a)
naman, at anytime before entering the plea, the
accused may move to quash the complaint or
information. 1ST GROUND: (A) THAT THE FACTS
Take note that under Section 2, the motion to OFFENSE;
quash partakes the nature of an omnibus motion
because the court will consider no ground other
The counter part of this in civil cases is, that
than those stated in the motion. The court will not
the pleading asserting the claim states no cause of
quash a complaint or information on a ground
that you did not cite. This is because you can
waive this right.
Q: How do we know the complaint or
information do not constitute an offense?
The only ground the court will consider moto
propio, is lack of jurisdiction over the offense A: You look at the allegations in the
charged, even if not raised in the motion to complaint. If the facts alleged do not constitute
quash. The theory is that: No amount of silence any crime, then the information should be
on the party of the accused will grant the court quashed. This was emphasized in the case of
jurisdiction over the subject matter of the case.
Jurisdiction over the subject matter is conferred
by law.
October 13, 1995
Q: What are the grounds for a motion to
HELD: As a general proposition,
a motion to quash on the ground that
A: Section 3:
the allegations of the information do
not constitute the offense charged, or
SEC. 3. Grounds. The any offense for that matter should be
accused may move to quash the resolved on the basis alone of said
complaint or information on any allegations whose truth and veracity
of the following grounds:
are hypothetically admitted. However,
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 130

additional facts not alleged in the TO THE PRESCRIBED FORM;

information, admitted or not denied
by the prosecution may be invoked in You know very well the form of complaint or
support of the motion to quash. information. You go back to Rule 110 you state
the time, the place, etc. then in Rule 112 a
certification is required. The fiscal will certify that
2ND GROUND: (B) THAT THE COURT I have conducted the preliminary investigation, etc.
TRYING THE CASE HAS NO JURISDICTION that is the form. The fiscal will certify that the
OVER THE OFFENSE CHARGED; other party has given the chance to be heard. If
the same was not afforded the accused, he can
3RD GROUND: (C) THAT THE COURT move to dismiss the case.
OVER THE PERSON OF THE ACCUSED; Q: Now, what is your ground to quash?
A: You say, It does not comply with the
Instances when the court has no jurisdiction: prescribed form because the correct form
1.) the court has no jurisdiction to try the requires certification. It is a ground for a motion
case because of the penalty; to quash.
2.) the court has no jurisdiction to try the
offense because it is committed in 6TH GROUND: (F) THAT MORE THAN
another place territorial jurisdiction; ONE OFFENSE IS CHARGED EXCEPT WHEN A
3.) the court has no jurisdiction over the OFFENSES IS PRESCRIBED BY LAW;
person of the accused because the
latter has never been arrested and This refers to a duplicitous complaint or
never surrendered himself. information when it charges more than one
offense under Rule 110, Section 13. It is not
allowed. However under Rule 120, Section 3 it is
4TH GROUND: (D) THAT THE OFFICER waivable. If the accused fails to object to it before
WHO FILED THE INFORMATION HAD NO trial, the court may convict him of as many
AUTHORITY TO DO SO; offenses as are charged and proved, and impose
on him the penalty for each offense,
Q: Who has the authority to file the case?
A: Prosecutor.
So if it was the clerk who signed for the city ACTION OR LIABILITY HAS BEEN
prosecutor (e.g. By: Kent Clark clerk typist), the EXTINGUISHED
accused can move to quash because the clerk is
not authorized. Remember, if the fiscal filed an Q: How is criminal liability extinguished?
information without the previous complaint A: Under Article 89 of the RPC:
signed by the victim or by the parents, the same 1.) by death of the convict;
can be quashed. 2.) by service of sentence;
3.) by amnesty;
CUDIA vs. COURT OF APPEALS 4.) by absolute pardon;
January 16, 1998 5.) by prescription of the crime;
6.) by prescription of the penalty;
HELD: An infirmity in the
information, such as lack of authority EXAMPLE: The information should be filed
of the officer signing it, cannot be only within 5 years but the charge was filed on
cured by silence, acquiescence, or even the 7th year. So you can move to quash because
by express consent. the liability has already been extinguished by


I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 131

8TH GROUND: (H) THAT IT CONTAINS justification. Hence, for the alleged
AVERMENTS WHICH, IF TRUE, WOULD privilege to be a ground for quashing
CONSTITUTE A LEGAL EXCUSE OR the information, the same should have
JUSTIFICATION been averred in the information itself.
Meaning, the information should
The complaint or information contains admit that it is privileged in nature. If
averments which if true would show that you are it is not stated there, then it is not
NOT liable. admitted.
The privilege should be absolute,
SITUATION: The information says that there not only qualified. Where, however,
is a case of homicide because in such certain date these circumstances are not alleged in
Rose stabbed Rucel because Rucel tried to stab the information, quashal is not proper
Rose first. The information is admitting that Rose as they should be raised and proved as
acted in self-defense. Prosecutor himself admits defenses. With more reason is it true
that Rose acted in self-defense. Therefore, the in the case of merely qualifiedly
information admits the existence of a justifying privileged communications because
circumstance. such cases remain actionable since the
defamatory communication is simply
SITUATION: You are charged for committing presumed to be not malicious, thereby
a crime and when you committed it, you are out relieving the defendant of the burden
of your mind. Thus, it admits insanity. So you can of proving good intention and
move to quash on the ground that the justifiable motive. The burden is on
information admits that you are insane. the prosecution to prove malice. Thus,
even if the qualifiedly privileged
That is what is meant by a complaint or nature of the communication is
information which contains averments which if alleged in the information, it cannot be
true, constitute a legal excuse or justification. Of quashed especially where prosecution
course this is very rare noh? Why will the fiscal opposes the same so as not to deprive
allege in the information something that is the latter of its day in court, but
favorable to you? This is very queer. prosecution can only prove its case
after trial on the merits.
One of the most interesting case here is the
1994 case of
columnist in a newspaper and was
charged for libel for writing in a This is known as the defense against double
column something which is jeopardy. The double jeopardy as a ground for a
discriminating. According to her the motion to quash is the most complicated ground.
information should be quashed That is why it is thoroughly discussed in Section
because it was a privileged 7. We will go now to Section 4.
SEC. 4. Amendment of
complaint or information. If
HELD: NO, it cannot be quashed the motion to quash is based on
because of paragraph [g] of Section 3 an alleged defect of the
Rule 117 which states that the accused complaint or information which
can be cured by amendment, the
may move to quash the complaint or court shall order that an
information where it contains amendment be made. (4a)
averments which, if true, would If it is based on the ground
that the facts charged do not
constitute a legal excuse or constitute an offense, the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 132

prosecution shall be given by in custody of another charge.

the court an opportunity to (5a)
correct the defect by
amendment. The motion shall be SEC. 6. Order sustaining the
granted if the prosecution motion to quash not a bar to
fails to make the amendment, or another prosecution; exception.
the complaint or information An order sustaining the
still suffers from the same motion to quash is not a bar to
defect despite the amendment. another prosecution for the
(n) same offense unless the motion
was based on the grounds
specified in section 3 (g) and
Actually, some of the grounds of a motion to (i) of this Rule. (6a)
quash are harmless, they are not fatal. They can
be cured by amendments.
SITUATION: An information is filed against
The second paragraph of Section 4 is new. It you and it is not in the prescribed form.
was merely inserted to complement the first
paragraph. Q: What would the court do?
A: Based on Section 4, the court will, instead
EXAMPLE: Motion to quash that the of quashing , allow the fiscal to amend. And your
information does not comply with the prescribed motion is already moot and academic. But
form because taking of oath was forgotten. I do suppose the court will quash the information
not think the court will order for the dismissal of because it was filed by somebody who was not
the criminal case because of that. It will instead authorized to file and the motion to quash is
issue an order directing the fiscal to amend, Take sustained, it does not mean to say that the case
the oath, so it will be cured. This is a ground for cannot be re-filed since the defects are incurable.
quashal which is not a serious defect but only a
formal defect. Thus, instead of quashing the SITUATION: The case of homicide is filed in
information the court may extend the right to the the MTC when actually it should be filed in the
fiscal to amend the complaint or information RTC. Since the MTC has no jurisdiction, you file a
since the name is curable. motion to quash. And the judge shall quash it.

However under the second paragraph, Q: What would the fiscal do?
despite the lapse of so many days, the prosecutor A: Tomorrow he will re-file it. So when the
did not file the amended information or even if case is dismissed on such a ground lack of
he filed the corrected information, pero ganun pa jurisdiction or it does not conform with the
rin, the defect is still there, I will rather move to prescribed form the rule is it is not a bar to re-
quash the information. file the case. It can be filed again.

We will take up Section 5 together with EXCEPT when the ground for dismissal is
Section 6. falling under paragraphs [g] and [i] of Section 3,
Rule 117.
SEC. 5. Effect of sustaining
the motion to quash. If the
motion to quash is sustained, Q: What is paragraph [g]?
the court may order that A: That the criminal action or liability has been
another complaint or
information be filed except as extinguished. If the case is quashed on this
provided in section 6 of this ground, that is the end since the same is
rule. If the order is made, the extinguished already. You cannot re-file it
accused, if in custody, shall
not be discharged unless anymore.
admitted to bail. If no order
is made or if having been made, Q: What is paragraph [i]?
no new information is filed
within the time specified in A: that the accused has been previously convicted
the order or within such or acquitted of the offense charged, or the case against
further time as the court may him was dismissed or otherwise terminated without his
allow for good cause, the
accused, if in custody, shall express consent. So you cannot re-file the
be discharged unless he is also information because of double jeopardy.
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not use it. Why move to quash when by doing so

As a general rule, all other grounds for would worsen your situation. Of course, there are
motion to quash even if granted will not really be also instances where there is a need to object by
a total victory for the accused. That is why some virtue of a duplicitous information.
lawyers will never bother to file a motion to
quash anymore. This is because once you file it, Q: When do you apply it?
the same case would be re-filed. As a matter of A: That is for the lawyer to judge. Will you
fact, there are cases when it is not advisable to file use it or not? In other words, there is a need for
a motion to quash unless there is a serious reason. you to have a clear picture of the situation. You
It is a matter of judgment. If you think it will not must not only know the Rules of Court but also
benefit you client, then do not file it. Like in when the law must be used. An example is a
preliminary investigation some lawyers will not motion to quash. How to apply it.
submit to criminal investigation most especially if
they believe the fiscal will file because of probable However, when a case is quashed on the
cause. Better if I will not file so that you will not ground that the criminal liability has been
know who are my witnesses or statements. extinguished or the accused is placed in double
jeopardy, once it is quashed, that is the end. It
As a matter of fact that happened already. cannot be re-filed.
There was a case wherein the information stated
that the accused issued five (5) checks, with
SEC. 7. Former conviction or
different dates, all are post-dated. All five checks acquittal; double jeopardy.
bounced. So, a complaint against the accused was When an accused has been
filed before the fiscal. What the fiscal did was to convicted or acquitted, or the
case against him dismissed or
file one case for estafa reciting there that the otherwise terminated without
accused issued five checks of five different dates his express consent by a court
with different maturities, and all bounced. of competent jurisdiction, upon
a valid complaint or
information or other formal
So it turned out that the information is charge sufficient in form and
duplicitous because every check should have substance to sustain a
conviction and after the
been one case. You know what the lawyer for the accused had pleaded to the
accused did? He file a motion to quash stating charge, the conviction or
that the information charges more than one case acquittal of the accused or the
dismissal of the case shall be
of estafa. The lawyer was correct, so the a bar to another prosecution
dismissed the information. The following day, the for the offense charged, or for
fiscal filed 5 informations. One case for every any attempt to commit the same
or frustration thereof, or for
check. In effect there are five warrants of arrest any offense which necessarily
already. Then the accused asked his lawyer, includes or is necessarily
Atty, what happened? Before I have only one included in the offense charged
in the former complaint or
case. Now, there are already five! information.
However, the conviction of
the accused shall not be a bar
Q: If you are the lawyer, how will you explain to another prosecution for an
that? offense which necessarily
A: Actually, legally you are correct. An includes the offense charged in
the former complaint or
information should charge only once crime. But information under any of the
since t charges five crimes so you move to quash following instances:
which is a valid ground. But look at the effect (a) the graver offense
developed due to supervening
the accused now has five warrants. Can you say, facts arising from the same act
it is because of a duplicitous information? He or omission constituting the
cannot understand that. former charge;
(b) the facts constituting
the graver charge became known
That is why there is difference in just or were discovered only after a
knowing the law from knowing how to apply the plea was entered in the former
complaint or information; or
law. You should know the law and you should (c) the plea of guilty to
know how to use it. If it is not in you interest, do the lesser offense was made
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 134

without the consent of the The second sentence says that the act is
prosecutor and of the offended
party except as provided in punished by a law passed by Congress and it iis
section 1(f) of Rule 116. also punished for example, by an ordinance
In any of the foregoing passed by the City or Municipal Council. So it is a
cases, where the accused
satisfies or serves in whole or crime under the municipal or city ordinance and
in part the judgment, he shall also under the national law. It is not the same
be credited with the same in crime because it is punished by two laws, so
the event of conviction for the
graver offense. (7a) there must be two crimes.

However the sentence says, that if you are

One important ground for a motion to quash acquitted or prosecuted under the national law,
is Section 7 on double jeopardy which is also you cannot anymore be acquitted or convicted
found in the Constitution Section 21, Article 3 under the city or municipal ordinance all over
on the Bill of Rights. again or vice-versa. You are protected for the
same act not for the same offense.
Q: Define jeopardy?
A: Jeopardy is the peril in which a person is Now, the best illustrative case comparing the
put when he is regularly charged with a crime first and the second sentences is the 1987 case of
before a tribunal properly organized and PEOPLE vs. RELOBA, infra where Justice
competent to try him. (Commonwealth vs. Feliciano traced the history of double jeopardy
Fitzpatrick, 1 LRA 451) staring from the 1935 Constitution.

Meaning, if a case is filed against you before PEOPLE vs. RELOVA

a court which is competent to try you, then from 148 SCRA 292
that moment, there is a risk, danger or peril.
Everytime there is peril, there is jeopardy. And FACTS: The accused installed an
after what happened to you, whether you are electrical connection without permit.
acquitted or convicted or the case was dismissed He was charged with theft under the
without your consent, later on ibalik ka naman in RPC theft of electricity. And it so
the second time around, ah hindi puwede yan. It happened that in that place, there was
is inhuman to put you in jeopardy twice. an ordinance passed by the municipal
council making it a crime for you to
make an electrical connection without
Lets go to the Constitution. Under Article 3, permit.
Section 21, there are two (2) sentences: So he was charged both for
violation of the RPC and the
1.) No person shall be twice put in municipal ordinance. The accused
jeopardy of punishment for the same filed a motion to quash the second
offense. and information, stating that he has
2.) If an act is punished by a law or already been charged for theft of
ordinance, conviction or acquittal in electricity. The prosecution contended
either shall constitute a bar to another that the first charge was theft under
prosecution for the same act. the RPC and the prosecution is
charging him not for theft but for
The first sentence is what you call protection illegal electrical connection under the
against double jeopardy of punishment for the municipal ordinance.
same offense. The second sentence is what you call
the protection against double jeopardy for the ISSUE #1: What is the reason why
punishment of the same act. So there is double there are 2 rules in the provision on
jeopardy for the same offense and double double jeopardy?
jeopardy for the same act. The second sentence is HELD: If the second sentence of
not the same offense, but it is the same act. the double jeopardy provision had not
been written into the Constitution,
conviction or acquittal under a
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 135

municipal ordinance would never accused, his fortune, safety and peace
constitute a bar to another prosecution of mind would be entirely at the
for the same act under a national mercy of the complaining witness who
statute. An offense penalized by might repeat his accusation as often as
municipal ordinance is, by definition, it is dismissed by the court and
different from an offense under a whenever he might see fit, subject to
statute. The two offenses would never no other limitation or restriction than
constitute the same offense having his will and pleasure. The accused
been promulgated by different rule- would never be free from the cruel
making authorities though one be and constant menace of a never
subordinate to the other and the ending charge, which the malice of a
plea of double jeopardy would never complaining witness might hold
be. The discussions during the 1934- indefinitely suspended over his head.
1935 Constitutional Convention show
that the second sentence was inserted
precisely for the purpose of extending Lets go to the double jeopardy rule.
the constitutional protection against
double jeopardy to a situation which Q: Bar Question: What are the requisites of
would not otherwise be covered by double jeopardy?
the first sentence. A: The SC tried to compressed that 2
paragraphs (of Section 7) in only 3 sentences in
ISSUE #2: Was there double the case of
HELD: The purpose of installing PEOPLE vs. BOCAR (138 SCRA
illegal connection is to steal electricity, 166) reiterated in
which is also theft. In other words, it is PANGAN vs. PEOPLE (155 SCRA
the same act of installing which is 45)
punishable. Since you are acquitted or
convicted under the national law, you HELD: To raise the defense of
cannot be prosecuted under a double jeopardy, three (3) requisites
municipal law. You are protected by must be present:
the second sentence of double 1.) The first jeopardy must
jeopardy in the Constitution: If an act have been attached prior to
is punished by a law or ordinance, the second;
conviction or acquittal in either shall 2.) The first jeopardy must be
constitute a bar to another validly terminated; and
prosecution for the same act. 3.) The second jeopardy must
be for the same offense as
However, Section 7 is not concerned with the that of the first.
second sentence but with the first sentence the
protection against double jeopardy from being
punished for the same offense. This is similar to Well, this is my advice, for purposes of
res adjudicata. The SC explained the rational answering the question on double jeopardy and
behind the double jeopardy rule in the case of in order to understand completely the double
jeopardy rule, let us analyze Section 7 by dividing
MALLARI vs. PEOPLE it into three (3) parts:
168 SCRA 422
HELD: The rule against double DOUBLE JEOPARDY IN ORDER TO
jeopardy protects the accused not ATTACH?
against the peril of second punishment
but against being tried for the same B.) IN WHAT INSTANCES MAY THE
offense. Without the safeguard this ACCUSED INVOKE THE PROTECTION
rule establishes in favor of the OF DOUBLE JEOPARDY? and
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 136

2. The accused moved to quash the first

C.) ASSUMING THAT ALL THE information on the ground that it did
REQUISITES OF DOUBLE JEOPARDY, not charge an offense. Therefore, it
THE ACCUSED IS PROTECTED was not a valid information. So, the
AGAINST FROM WHAT OFFENSE? accused was never in jeopardy.
(People vs. Reyes, 98 Phil. 646)
In effect, Section 7 talks of those three. Lets
start with the first one: IT IS FILED IN A COURT OF COMPETENT

A.) WHAT ARE THE REQUISITES CASE: A case of homicide is filed in the MTC;
that will be dismissed in MTC for lack of
jurisdiction. But that can be cured if the fiscal
TO ATTACH? will file the information of homicide in the RTC.
Is there double jeopardy?
Q: When does the first jeopardy attach?
A: None. The accused was never in jeopardy
A: It attaches when the following requisites are because the first information was filed before the
present: wrong court. There was no danger of being
1. The former complaint or information convicted based on the case filed. (People vs.
is valid; Salico, 84 Phil. 722)
2. It was filed in a court of competent
3. The accused had been arraigned under
said complaint or information; and B.) ASSUMING THAT THE
4. The accused had pleaded to the same. REQUISITES OF DOUBLE
Q: When is a complaint or information valid
within the meaning of the double jeopardy rule? JEOPARDY?
A: The requisites are:
1. if it charges an offense; (People vs. Q: In what instances may the accused invoke
Austria, 94 Phil. 897) the protection of double jeopardy?
2. if it is filed by a person or officer A: In the following:
legally authorized to do so. (People 1.) when the accused had been previously
vs. Kho, 97 Phil. 825) convicted;
2.) when the accused had been previously
CASE: An information was filed against Mr. acquitted; and
Acelar for theft. Mr. Acelar moved to quash on 3.) when the case against the accused had
the ground that the information does not charge been dismissed or otherwise
any offense. The court agreed and the terminated without his express
information was quashed. So, the fiscal corrected consent.
the information and re-filed it. Mr. Acelar moved
to quash on the ground of double jeopardy. Is Lets go to a decided case: The fiscal filed a
there double jeopardy? case against you for homicide alleging that on a
A: There is no double jeopardy for the certain day you killed Juan dela Cruz. While the
following reasons: case is pending, the fiscal filed a second
1. The dismissal of the first information information for the same homicide committed on
was on motion of the accused. the same day by the same accused. So you are
Therefore, it was a dismissal with his now facing two charges for the same homicide.
express consent. Diyan palang, tumba Can you move to quash the second information
ka na! on the ground of double jeopardy?
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 137

In so many cases, like in the case of Buscayno

vs. Milatary Commission, the SC said NO, because Q: What is the difference between acquittal
you have not been acquitted or convicted. The and dismissal of the case?
first case was not validly terminated kay pending A: Generally, dismissal is not on the merits.
pa man. In civil case, that is litis pendencia. Now, But there are dismissals which are classified as
if the case is already decided, convicted or acquittal, like demurrer to evidence, or dismissal
acquitted, or dismissal without his express because of the violation of the right of the accused
consent, then there can now be double jeopardy. to speedy trial.
In civil case that is res adjudicata.
In the same manner, for double jeopardy to
However in the case of People vs. City Court of attach, the law says, the case must have been
Manila (121 SCRA 627), the SC made a dismissed without your express consent. So, as a
pronouncement that mere pendency of a criminal general rule, when the accused himself files a
case against the accused can be invoke as a motion to dismiss, he cannot invoke double
ground for double jeopardy. jeopardy because he himself intended the
dismissal of his case; it is with his express
So, which is which? The issue has been consent.
resolved in the 1993 case of



HELD: The mere filing of two (2) We will explore the first issue: Whether or
informations charging the same not the dismissal is with the express consent of
offense is not an appropriate basis for the accused. One of the interesting cases
the invocation of double jeopardy interpreting the meaning of the phrase is the 1993
since the first jeopardy has not yet set case of
in by a previous conviction, acquittal
or termination of the case without the
consent of the accused.
221 SCRA 960
The ambiguity stirred by the
imprecise observation in People vs. City
FACTS: Vergara was accused of
Court of Manila, a 1983 case, can now
frustrated murder for allegedly
he considered modified in that a prior
conspiring with some people. While
conviction, or acquittal, or termination
the case is pending, the accused asked
of the case without the express
the provincial prosecutor for a
acquiescence of the accused is still
reinvestigation of the case. The request
required before the first jeopardy can
was granted. After reinvestigation,
be pleaded to abate a second
the prosecutor made a finding that
there was no crime because the
accused acted in self-defense.
Now, the law says that you have been
Therefore, the prosecutor moved for
convicted or acquitted, or a case against you have
the dismissal of the case in court. The
been dismissed without you express consent.
trial court granted the motion for
That is what you mean by the first jeopardy has
dismissal of the case for frustrated
already been terminated. But take note that this is
not a key for the prosecutors to file several the
However, when the fiscal made a
same cases against the accused. The law only
finding that there was no probable
provides that you cannot raise the defense of
cause, in the meantime naman, the
double jeopardy in this situation. But you can
complainant appealed such finding to
question the acts of the prosecution to his
the Secretary of Justice. The
superior or you may file an injunction case citing
recommendation of the prosecutor
the case of Brocka vs. Enrile. But definitely you
was disapproved. Sabi ng DOJ, No,
cannot use double jeopardy as defense.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 138

there is a case here. Provincial its meaning. This is hardly what the
prosecutor, i-re-file mo. So, there was accused gave. What they did was
another information for frustrated merely to move for reinvestigation of
murder filed against the same accused. the case before the prosecutor. To
This time, the accused pleaded Double equate this with express consent of the
Jeopardy. Bakit? According to the accused to the dismissal of the case in
accused: the lower court is to strain the
meaning of express consent too far.
ACCUSED: The cases Simply, there was no express consent
were dismissed upon motion of the accused when the prosecutor
of the prosecutor; I was not the moved for the dismissal of the original
one who filed the motion. So, Informations.
when the case was dismissed,
it was dismissed without my
express consent. There was a second issue in the case of
COMPLAINANT: No, VERGARA based on the rule on motion. In
why did you ask for general, when you file a motion, you must
reinvestigation? Di ba, the furnish a copy of the motion to the adverse party
purpose is that it will lead to because, generally, motions cannot be filed ex-
the dismissal of the case? So, parte unless the motion is non-controversial.
when you filed a motion for Therefore, when the prosecution filed a motion to
reinvestigation, in effect, you dismiss ex-parte [without furnishing the parties a
are seeking a dismissal with copy of the motion].
your express consent.
ACCUSED: No! Express
consent is different from
intention. When I filed a PEOPLE vs. VERGARA, supra
motion for reinvestigation, my
intention was to let the case be ISSUE: Is there a necessity to
dismissed, but I did not give furnish the parties a copy of the
my express consent. While I motion to dismiss?
may have intended to let the HELD: NO. It is not necessary. Is
case be dismissed upon there a necessity to furnish the accused
moving for reinvestigation, I a copy of the motion to dismiss? Do
never give my express consent you think the accused will oppose the
for the dismissal of the case. It motion? Of course not because it is
was the prosecutor himself favorable to him. Definitely, the
who did it. accused will not question the filing of
the motion to dismiss the criminal
ISSUE: Is there double jeopardy? case.
As to the complainant, is there a
HELD: YES, there is double necessity for the prosecutor to furnish
jeopardy. When you say express a copy of the motion to dismiss the
consent, the consent must be criminal case to the private offended
categorical, clear. You cannot infer party? Remember, every criminal case
that by simply asking for is under the direction and control of
reinvestigation. You cannot infer that the prosecutor. If we will allow the
there is express consent; that is not general rule, if the victim will question
within the concept. the dismissal, he will be having
Express consent has been defined control and no longer the prosecutor.
as that which is directly given either The prosecutor determines whether
viva voce or in writing. It is a positive, there is a case or none. Therefore,
direct, unequivocal consent requiring there is also no necessity of furnishing
no inference or implication to supply
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 139

to the private offended party a copy of should not have been physical injuries,
the motion to dismiss. rather it should have been frustrated
What should be the remedy of the murder because there was intent to
private offended party? Because the kill eh. The MTC dismissed the case of
offended party is aggrieved, imagine physical injuries and told the fiscal to
nawala ang kaso niya! The remedy, file information for frustrated murder
when the court ordered the dismissal dahil mali ang fi-nile mo. The accused
of the case, is to appeal the order of claimed that he was charged for the
dismissal because it is also adverse to same act. Thus, he moved for the
their claim for civil liability. Instead, dismissal of the frustrated murder
they allowed the order of dismissal to case.
become final and, now, they are
arguing that the order of dismissal is ISSUE: Is there double jeopardy?
void. They should have appealed it.
HELD: NONE. There was no
double jeopardy because the order of
One last point. According to the law, if a case the trial court dismissing the physical
is dismissed without your express consent, that injury case is wrong. It was a void
could be a basis for double jeopardy. order because what the judge should
HOWEVER, jurisprudence says, an order have done is to continue trying the
dismissing a case will NOT constitute double case even if there was an error in the
jeopardy if the order of dismissal is NULL and offense charged. So, if the accused
VOID. Meaning, an order of dismissal of a case would be convicted, it is for physical
will constitute double jeopardy on the injuries. In other words, you cannot
assumption that the order of dismissal was a order dismissal and then re-file the
valid order of dismissal. case for frustrated murder. Because
the order dismissal is void, there is no
Q: What is the usual reason why an order of double jeopardy.
dismissal is void?
A: The usual reason is when the prosecution However, there was one dissenting justice in
was deprived of due process. That has been the case of Bogol former Justice Makasiar. He
exemplified in many cases. One of the cases is said that there is double jeopardy as the case had
Senator Aquino et al. Na-acquit man yan sila ba. already been tried and submitted for decision
These people were already acquitted by the where the MTC judge ordered the physical injury
Sandiganbayan. How come nabalik ang kaso? to be dismissed and ordered the filing of a new
On the theory that everything was pre-arranged case for frustrated murder in the RTC. Frustrated
including the acquittal. The SC said, the acquittal murder includes physical injuries. Therefore,
of the case is null and void because the dismissal of the latter resulted in double
prosecution was deprived of due process in the jeopardy.
sense that no matter what it does, the acquittal of
the accused was already pre-ordained. So there is If you look at it, talagang tama siya (Makasiar,
no double jeopardy. J.) eh all the elements are there. But the trouble
is, sabi ng SC, the order of dismissal is void, there
That has been applied in many cases like in was no valid dismissal ibalik! The charge for
the case of physical injury was reinstated.

Another instance, the 1992 case of

213 SCRA 138
FACTS: The accused was charged
with physical injuries. After trial in FACTS: The case was set for pre-
the MTC, the court discovered that it trial for 2 days (September 27 and 28).
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 140

On the first day of the trial, the cancellation was given the day before,
offended party was there pero wala and the following day nobody
ang accused. The court said, We will remembered about it.] For the
have to cancel the hearing for today prosecutor who orally moved for such
and tomorrow on the presumption cancellation and the Judge himself
that maybe they did not receive the who dictated the said order, no
notice. The trouble is the following plausible explanation may be offered
day, paglabas ng court calendar, for such lapse.
nandoon pa rin ang kaso it was
supposed to be cancelled. This time, That is a demonstration of the rule that when
ang accused naman ang sumipot, ang the order of dismissal is null and void, you
offended party wala. Of course, why cannot plead double jeopardy.
would the offended party be there, eh,
na-cancel na. Since the accused was And the last part:
present for trial, but the prosecution
was not ready because wala ang C.) ASSUMING THAT ALL THE
testigo niya, the court dismissed the
case for failure of the complainant to
appear and to testify. [Well, the court JEOPARDY, ARE PRESENT, THE
and the prosecution should have ACCUSED IS PROTECTED AGAINST
remembered that the hearing is FROM WHAT OFFENSE?
already cancelled.] So, when the
complainant learned about it, Assuming the accused has already been
nagreklamo, I was not supposed to convicted, acquitted or the case is dismissed
be there anymore, na-cancel naman. without his express consent, and all the requisites
They looked at it, nagkamali talaga; of double jeopardy are present, the accused
everybody realized this error. cannot be convicted for:
1. for the same offense; or
ISSUE: Is there double jeopardy if 2. for an attempt to commit the same
the action will be filed again? offense. [If you are convicted or
acquitted for a consummated offense,
HELD: NONE. The erroneous you cannot be charged or convicted or
dismissal order was issued acquitted for the lesser stage;] or
capriciously and arbitrarily; it 3. for frustration or attempt thereof; [The
unquestionably deprived the State of a acquittal, conviction or dismissal of
fair opportunity to present and prove the consummated crimes carries
its case. Thus, its right to due process automatically the frustrated or
was violated. The said order is null attempted stage of the same crime.] or
and void and hence, cannot be 4. for any other offense which
pleaded to bar a re-opening of the case necessarily includes or is necessarily
on the ground of double jeopardy. included in the offense charged in the
Consequently, the first jeopardy was former complaint.
not terminated and no second
jeopardy threatened the accused.
The Judge, Clerk of Court and the
prosecution should shoulder the BEING PROSECUTED FOR THE SAME
blame because unless amnesia OFFENSE
suddenly struck all of them
simultaneously, it cannot be imagined What is troublesome here is being prosecuted
that in a brief span of about twenty- for the same offense. This has been the subject of so
four (24) hours, they had all forgotten many decided cases, whether it is the same
about the order dictated in open court offense or not.
cancelling the hearing for September
27 and 28, 1990. [The order of
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 141

Q: While in a public place, Maya fired a the possession and intent to use the firearm.
machine gun, thereby causing panic and physical (People vs. Remerata, 98 Phil. 413)
injuries to certain persons. She was charged with
serious physical injuries through reckless Q: The accused, without a license, drove his
imprudence for firing the gun in public. jeep recklessly such that it turned turtle resulting
Subsequently, she was charged with serious into the death of four of its passengers.
public disturbance in a public place. Is there Prosecuted for multiple homicide through
double jeopardy? reckless imprudence; he was convicted.
A. NONE. While there was only a single act, Subsequently, he was prosecuted for driving
two distinct offenses resulted therefrom namely: without a license under the Land Transportation
(1) physical injuries which is a crime against Law. Is there DOUBLE JEOPARDY?
persons, and (2) public disturbance which is a A: NONE. The two offenses are distinct: one
crime against public peace and order. (People vs. is punished by the Penal Code and the other by
Bacolod, 89 Phil. 621) special law. (People vs. Guanco, 83 Phil. 639)

Q: Accused was caught fishing with Q: The accused married twice and lived with
explosives. He was first prosecuted for illegal the second woman as husband and wife for quite
fishing and subsequently, for illegal possession of some time. Prosecuted for bigamy, he was
explosives. Is there DOUBLE JEOPARDY? convicted. Subsequently, he was prosecuted for
A: NONE. These are two (2) distinct offenses, concubinage. Is there DOUBLE JEOPARDY?
the same being punished by two different laws. A: NONE. The two offenses are distinct. In
There is a law for illegal fishing and another for bigamy, marriage is an essential element. You
illegal possession of explosives. (People vs. can only commit bigamy if you are married and
Tinamisan, L- 4081, January 29, 1952) you marry another. But in concubinage, marriage
is not an essential element mere living together
Q: A complaint for adultery was filed against as husband and wife is sufficient. (People vs.
Miriam and Cholo covering the period from the Schneckenburger, 72 Phil. 413) If you are a
year 1946 to March 14, 1947. Pleading guilty, the married man and you live as husband and wife
two were accordingly sentenced. On September with another woman, that is concubinage even if
17, 1948, a second complaint for adultery was you will not marry her.
filed against Miriam and Cholo covering the
period of March 15, 1947 to the date of the filing
of the second complaint. The two moved to quash PEREZ vs. COURT OF APPEALS
the second complaint on the ground of double 168 SCRA 236
jeopardy. Is there double jeopardy?
A: NONE. Adultery is a crime of result and FACTS: Accused was charged
not of tendency; it is an instantaneous crime with consented abduction. He was
which is consummated at the moment of the acquitted. The court said that it was
carnal union. Each sexual intercourse constitutes qualified seduction pala, and not
a crime of adultery, so that there may be as many consented abduction. So, another
complaints for adultery as there are adulterous complaint for seduction was filed
acts committed. It is only one relationship but against the accused. The accused
every carnal act is one crime. (People vs. Zapata, pleaded double jeopardy. Is there
88 Phil. 688) double jeopardy?

Q: An accused stole a revolver, tinago niya. It HELD: NONE. Although they may
turned out to be unlicensed. He was first have arisen from the same set of facts,
prosecuted for theft of firearm and he was [and they are both crimes against
convicted. He was subsequently prosecuted for chastity] they are not identical offenses
illegal possession of firearm. Is there double as would make applicable the rule on
jeopardy? double jeopardy.
A: NONE. The offenses are different. Theft is There are similar elements
consummated upon the taking, while illegal between Consented Abduction and
possession involves not only the taking but also Qualified Seduction, namely: (1) that
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 142

the offended party is a virgin, and, (2) because the SC said the protection against double
that she must be over twelve (12) and jeopardy may be extended to a case of a single
under eighteen (18) years of age. criminal act impelled by a single criminal intent,
However, two elements differentiate resulting into two or more juridically identical
the two crimes. Consented Abduction, offenses.
in addition to the two common
elements, requires that: (1) the taking Q: Give examples of the rule mentioned
away of the offended party must be above.
with her consent, after solicitation or A: The following:
cajolery from the offender, and, (2) the
taking away of the offended party 1. Mr. Cadungog stole two (2) fighting
must be with lewd designs. On the cocks in the same place. He was
other hand, an information for prosecuted for stealing one cock. He
Qualified Seduction also requires that: cannot be prosecuted anymore for
(1) the crime be committed by abuse of stealing the other cock. Although there
authority, confidence or relationship, are two acts of taking but there is only
and, (2) the offender has sexual one criminal intent that is where
intercourse with the woman [which is double jeopardy will arise. (People vs.
not required in abduction]. De Leon);

2. A person was charged with illegal

NIERRA vs. DACUYCUY importation of blasting caps a
181 SCRA 1 device for preparing explosives
cannot be subsequently prosecuted for
FACTS: A check bounced. Two illegal possession of the same, for
cases were filed: (1) Estafa, under there can hardly be importation
Article 315, RPC, and (2) BP 22. Is without possession. (People vs.
there DOUBLE JEOPARDY? Elkanish, 90 Phil. 53);

HELD: NONE. The two crimes are 3. A person charged with reckless
distinct. While, in filing of the two driving under the LTO Law cannot be
sets of information may refer to subsequently charged with damage to
identical acts, the prosecution cannot property through reckless imprudence
be limited to one offense because a because reckless driving is the
single criminal act may give rise to a essential element of both offenses.
multiplicity of offenses with different (People vs. Diaz, 94 Phil. 714; People
elements. Prosecution for the same act is vs. Belga, 100 Phil. 996);
not prohibited. What is forbidden is
prosecution for the same offense. 4. A person convicted of illegal
However under the Constitution, possession of opium cannot be
if the same act is punished by a subsequently prosecuted for illegal
national law and an ordinance, iba na possession of opium pipe found
yan! Conviction or acquittal in either together with the opium. (U.S. vs. Pho
one will constitute double jeopardy Chi, 20 Phil. 104);
that is the exception. But, if you are
violating two national laws, e.g. BP 22 5. Possession of two or more unlicensed
and Estafa, then there is no double firearms in one place constitutes but
jeopardy. one offense so that conviction for
illegal possession of one firearm is a
Those are examples of NO double jeopardy. bar to a subsequent prosecution for
possession of the other or others. (U.S.
HOWEVER, there are cases where the crimes vs. Gustilo, 19 Phil. 208)
are not identical but double jeopardy can be
applied. The best example is delito continuado
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 143

MALLARI vs. PEOPLE rebellion cases must not confine itself

168 SCRA 422 to common crimes but also to offenses
under special laws which are
FACTS: The accused wanted to perpetrated in furtherance of the
mortgage two (2) lots to the victims, political offense. And yet, the two
let us say for P3,000, at P1,500 each. crimes are punishable by two different
Sabi ng victim, Kulang man ang statutes. Technically, they are not the
kwarta ko. I will only lend you P1,500, same offense and yet one absorbs the
good for one lot lang. You ask my other because when you are in
mother-in-law baka may pera siya. conspiracy with the rebels, necessarily
Meron man din. So hinati the other you harbor each other. You cannot be
lot was mortgaged to the mother-in- expected to be a traitor to each other.
law of the victim for P1,500. It turned So, how can you separate one crime
out that all those deed of mortgage from the others?
were falsified. Two cases were filed
against the accused because there
were two victims. Alright. And both of them were among the
senators Honasan and Enrile. Now, we will go
ISSUE: Is there double jeopardy? to the third senator Miriam Santiago.

HELD: YES. There is only one SANTIAGO vs.

crime committed. There is only one GARCHITORENA
intent to defraud. It is just accidental 228 SCRA 214
that the intended victim only got one-
half. There is a similar crime FACTS: Miriam Santiago was
consisting of a series of acts, but all charged criminally with violation of
arising from one criminal resolution. Anti-Graft and Corrupt Practices Act
allegedly committed by her by
favoring unqualified aliens when she
ENRILE vs. AMIN was still the Immigration
September 13, 1990 Commissioner. Later, the prosecution
sought to change the charge by filing
FACTS: Enrile was charged for thirty-two (32) amended information
rebellion during the coup d etat since 32 aliens were benefited. So, 32
during the time of President Aquino cases were filed.
for conspiring with Honasan. During
the highlight of the coup attempt, HELD: The prosecution is directed
nandun si Honasan sa birthday party to consolidate the 32 informations into
ni Enrile. While the case for rebellion 1 information charging only 1 offense.
was pending, another case was filed The concept of delito continuado,
against him under PD No. 1829 for although an outcrop of the Spanish
harboring or concealing fugitives. The Penal Code, has been applied to
prosecution contended that harboring, crimes penalized under special laws
concealing a fugitive is punishable citing Article 10 of the RPC. The 32
under a special law, while rebellion is Amended Informations aver that the
punishable under the Penal Code. offenses were committed on the same
period of time, i.e., on or about
HELD: The prosecution is wrong. October 17, 1988. The strong
In the light of the absorption doctrine, probability even exists that the
the prosecution must fail. All crimes approval of the application for the
which are mere components of legalization of the stay of the 32 aliens
rebellion or are committed in was done by a single stroke of the pen,
furtherance thereof are absorbed in as when the approval was embodied
rebellion. The theory of absorption in in the same document.
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 144


FOR ANY OTHER OFFENSE WHICH Q: What are the exceptions to the double
INCLUDED IN THE OFFENSE CHARGED IN A: There are three (3) exceptions, under

Thus, a charge of Murder, double jeopardy 1. the graver offense developed

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


prevent harassment of an accused FORMER CHARGE
person by multiple prosecutions for
offenses which though different from This is also known as the supervening fact
one another are nonetheless each doctrine, also known as the Melo Doctrine
constituted by a common set or because this rule was laid down in the case of
overlapping sets of technical elements. Melo vs. People, 45 Phil. 766.
Otherwise, an unlawful act or
omission may give use to several EXAMPLE: Mortz stabbed Kim. Kim was
prosecutions depending upon the confined in the hospital. Mortz was charged with
ability of the prosecuting officer to frustrated homicide. He pleaded guilty. After 2
imagine or concoct as many offenses days, Kim died. So the fiscal amended the
as can be justified by said act or information to consumated homicide. Mortz
omission by simply adding or pleaded guilty double jeopardy. Under the Melo
subtracting essential elements. Under doctrine, there is no double jeopardy because of
the theory of appellant the crime of the supervening fact of death of the victim arising
rape may be converted into a crime of from the same act or omission constituting the
coercion, by merely alleging that by former charge the graver offense developed due
force and intimidation the accused to the supervening fact.
prevented the offended girl from
remaining a virgin. The reasoning in Melo is that, when the
accused was charged with frustrated homicide,
the crime of consummated homicide was not yet
in existence because the victim is still alive. So the
crime of consummated homicide started to come
out after the arraignment. Therefore, the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 145

information can be changed to consummated arraignment. It was there all along. Only, it was
homicide. discovered after. You cannot change the
information because double jeopardy applies.

DISCOVERED ONLY AFTER A PLEA WAS charged with physical injuries through reckless
ENTERED IN THE FORMER COMPLAINT OR imprudence and then arraigned kaagad ang
INFORMATION accused. Yon pala, patay na ang victim. The fiscal
move to postpone the arraignment to verify the
Now, the Melo doctrine had one flaw which status of the victim. HELD: Ah walang
the SC observed in other cases. For example we postponement! Tuloy!
will change the facts:
Mortz shot Kim. Kim was confined So it was really unfair. It is not covered by the
in the hospital. Mortz was charged Melo Doctrine. You cannot say tha the greater
with frustrated homicide. Lets say injury came after. It was already there all along.
Mortz will be arraigned tomorrow, but Only it was discovered after the plea.
tonight Kim died. The following
morning, nobody knew about it. So NGAYON, para wala ng gulo meron ng
the arraignment continued and Mortz paragraph [b]:
pleaded guilty to frustrated homicide.
After Mortz was sentenced to the facts constituting the
graver charge became known or
frustrated homicide, that is the time
were discovered only after a
the prosecutor learned that Kim died. plea was entered in the former
He now wants to change to complaint or information;
consummated homicide.
So even if the graver offense was already
Can he change the information? The SC said, existing before the arraignment but it became
no more. The Melo doctrine does not apply there known only after the plea, there is no more
because you cannot say that the death of the double jeopardy. This amendment created
victim supervenes after the arraignment even another exception not covered by the Melo
before the arraignment, the victim was already doctrine.
dead. The crime of consummated homicide was
already in existence. Mortz could have been
charged already when he was arraigned. Pero THE PLEA OF GUILTY TO THE LESSER
hindi man namin alam? Ah pasensya, that is OFFENSE WAS MADE WITHOUT
your risk. So that is where the Melo doctrine THE CONSENT OF THE PROSECUTOR AND OF
cannot apply. THE OFFENDED
This creates unfairness eh. There were cases 1(F) OF RULE 116.
where that really happens. Like in one case
where the accused was charged with physical You know this plea-bargaining, plea of
injuries in the arm of the victim. Less serious guilty to a lesser offense it must be wit the
physical injuries, because the doctor said it consent of the prosecutor and the offended party.
would heal in two weeks. He was charged, And remember, once there is a plea-bargaining,
pleaded guilty, sentenced to less serious physical you cannot be charged anymore for the graver
injuries arresto mayor. Then after one month, offense except as provided in Section 1 [f], Rule
wala pa man naayo, the injury was still there. 116 when during the plea-bargaining the
The victim went to the doctor. Ini-x-ray, bali pala offended party will not show up, in which case,
ang buto! Meaning, the crime all along was the consent of the prosecutor alone is required.
serious. The trouble is, the fracture was not This is a provision which compels the offended
detected by the doctor. So they sought to change party to appear in the plea-bargaining.
the charge to serous physical injuries. The SC Otherwise, the accused may offer to plea guilty to
said, NO, the fracture did not supervene after the
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 146

a lesser offense and the prosecutor will say, OK provisional! Puwede yan anytime! Before kasi
you are bound because you did not appear. noon, ganun eh. So there must be a deadline.

Q: But suppose Mortz has already started SEC. 9. Failure to move to

quash or to allege any ground
serving his sentence for frustrated homicide? therefore. The failure of the
A: There is no problem because under the last accused to assert any ground of
paragraph of Section 7, In any of the foregoing a motion to quash before he
pleads to the complaint or
cases, where the accused satisfies or serves in information, either because he
whole or in part the judgment, he shall be did not file a motion to quash
credited with the same in the event of conviction or failed to allege the same in
said motion, shall be deemed a
for the graver offense. waiver of any objections except
those based on the grounds
provided for in paragraphs (a),
SEC. 8. Provisional (b), (g), and (i) of section 3
dismissal. A case shall not of this Rule. (8a)
be provisionally dismissed
except with the express consent Q: What is the effect if the person does not file
of the accused and with notice
to the offended party. any motion to quash?
The provisional dismissal of A: He is WAIVING the grounds for the
offenses punishable by motion to quash, EXCEPT:
imprisonment not exceeding six
(6) years or a fine of any 1. lack of jurisdiction over the subject
amount, or both, shall become matter; (Section 3 [a])
permanent one (1) year after 2. the information does not charge any
issuance of the order without
the case having been revived. offense; (Section 3 [b])
With respect to offenses 3. the criminal liability has already been
punishable by imprisonment of extinguished; (Section 3 [g])
more than six (6) years, their
provisional dismissal shall 4. double jeopardy. (Section 3 [i])
become permanent two (2) years
after issuance of the order Meaning, even if you did not raised it in the
without the case having been
revived. (n) beginning, you can still raised it during the trial.
The rule is similar to civil procedure defenses
Section 8 is an entirely new provision. and objections not raised in a motion to dismiss
are deemed waived, except 1.) lack of jurisdiction
The concept of provisional dismissal means over the subject matter; 2.) res adjudicata; 3.) litis
there is no double jeopardy the case is pendentia; 4.) statute of limitations.
temporarily dismissed. So obviously the element
of double jeopardy are not around. So, there is a
way for the case to be revived in the future. The
1985 rules has no direct provision governing
provisional dismissal. The guidelines are not
clear. You can re-file because there is no double
jeopardy. The problem is, can that be case be re-
filed 5 years after?

Q: Under the new rules there is now a

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

After 1 or 2 years, as the case maybe, the

provisional dismissal becomes permanent. So
meron ng deadline so that the prosecutor or the
offended party will not buy his time, ah
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 147

2. the pre-trial agreement is signed by the

accused and his counsel

Section 3. Non-appearance at pre-trial

RULE 118 The accused is not the one compelled to
appear, but only the counsel for the accused
or the prosecutor.
The sanctions or penalty may be in the form
Section 1. Pre-trial; mandatory in
of reprimand, fine or imprisonment.
criminal cases.
Inasmuch as this is similar to indirect
contempt of court, the penalty for indirect
Pre-trial is MANDATORY in all criminal contempt may be imposed.
Section 4. Pre-trial order.
MATTERS CONSIDERED IN PRE-TRIAL After the pre-trial, the court issues an order
CONFERENCE: reciting actions taken, facts stipulated and
a. plea bargaining; evidence marked, and thereafter the trial on
a. stipulation of facts; the merits will proceed on matters not
b. marking for identification of evidence of
disposed of during the pre-trial.
the parties;
c. waiver of objections to admissibility of
evidence; Rule 119
d. modification of the order of trial if the TRIAL
accused admits the charge but interposes
a lawful defense; and
e. such matters as will promote a fair and SECTION 1. Time to prepare
expeditious trial of the criminal and civil for trial. After a plea of
not guilty is entered, the
aspects of the case. (Secs. 2 & 3, Circ. accused shall have at least
38-98) fifteen (15) days to prepare
for trial. The trial shall
Plea bargaining the process whereby the commence within thirty (30)
days from receipt of the pre-
accused, the offended party and the trial order. (sec. 6, cir. 38-
prosecution work out a mutually satisfactory 98)
disposition of the case subject to court SEC. 2. Continuous trial
approval. It usually involves the defendants until terminated;
pleading guilty to a lesser offense or to only postponements. Trial once
commenced shall continue from
one or some of the counts of a multi-count day to day as far as
indictment in return for a lighter sentence practicable until terminated.
than that for the graver charge. It may be postponed for a
reasonable period of time for
good cause. (2a)
The court shall after arraignment and within The court shall, after
30 days from the time the court acquires consultation with the
prosecutor and defense counsel,
jurisdiction over the person of the accused, set the case for continuous
unless a shorter period is provided for by trail on a weekly or other
special laws or circular of the Supreme short-term trial calendar at
the earliest possible time so
Court, order a pre-trial. as to ensure speedy trial. In
no case shall the entire trial
Section 2. Pre-trial agreement. period exceed one hundred
eighty (180) days from the
first day of trial, except as
Requisites before the pre-trial agreement otherwise authorized by the
can be used as evidence: Supreme Court. (sec. 8, cir.
1. they are reduced to writing The time limitations
provided under this section and
I i g o N o t e s i n C r i m i n a l P r o c e d u r e | 148

the preceding section shall not (b) Any period of delay

apply where special laws or resulting from the absence or
circulars of the Supreme Court unavailability of an essential
provide for a shorter period of witness.
trial. (n) For purposes of this
subparagraph, an essential
witness shall be considered
After the accused is arraigned, there is a absent when his whereabouts are
minimum of 15 days to prepared for the trial. unknown or his whereabouts
And then continuous trial until terminated. The cannot be determined by due
diligence. He shall be
trial period shall not exceed 180 days, taken from considered unavailable whenever
the Speedy Trial Act and SC Circulars. They are his whereabouts are known but
now incorporated