NOTES IN CRIMINAL PROCEDURE I

CASES
A. Jurisdiction
1. People vs. Buissan,105 SCFA 547
2. People vs. Lagon, 185 SCRA 442
B.
1.
2.
3.
4.
5.

Rule 110 Prosecution of offenses

Crespo vs. Mogul, 151 SCRA 462
People vs. Montesa, 248 SCRA 641
Dimatulac vs. Villon, 297 SCRA 679
People vs, Dela Cruz, G.R. No. 135022, July 11, 2002
People vs. Custamora, et al., G.R. Nos. 133448-53, oct.
6,2000
6. P echo vs, people, 262 SCRA 518
7. People vs. Villar, G.R. No. 132378, Jan. 18,2000
8. People vs. Dante G.R. No. 127652, Dec. 5, 2001
9. People vs. Castales G.R. No.121154-56, Jan. 15, 2002
10. People vs. Camerino, et al, 108 Phil. 79
11. Gabionza vs. CA, G.R. No. 140311, Mar. 30, 2001
12. Poblete, et al, vs. Sandoval, et al, G.R. No.150610, mar.
25, 2004
13. Roberts vs. CA, 254 SCRA 304
C.
1.
2.
3.
4.
5.
6.
7.
8.

Rule 111 Prosecution of civil actions

Hambo vs. CA, no. 122150, Mar. 17, 2003
Guinto vs. Andres, 453 SCRA 511
Naguiat vs. IAC, 164 SCRA 505
Padilla vs, Cd., 129 SCRA 558
Tupaz IV vs. CA, 475 SCRA 398
People vs. Consing, No. 148193, Jan. 16, 2003
Abunado vs. People, No. 159218, Mar, 30, 2004
People vs. Delizo, No. 141624, Aug. 17, 2004

D. Rule 112 Preliminary Invetigation

1. Faladom Pharma, Inc. vs. CA et al., G.R. No.
132422, Mar. 30, 2004
2. Agustine vs. People, G.R. No. 158211, Aug. 31,
2004
3. Polito go vs. Court of Appeals, 206 SCRA 138
4. Atty. Edward Serapio vs. Sandiganbayan, et al.,
G.R. No. 148468, Jan. 28, 2003, and the other
cases.
Arrest, Search and Seizure

1. People vs. Vinecario, et al., G.R. Np. 141137, Jan. 20,

2004
E.
1.
2.
3.
4.

Rule 114 Bail

Ocenar vs. Mabutin, 452 SCRA 377
Inoturan vs. Limsiaco, 458 SCRA 48
Almonte vs. Bien 461 SCRA 218
Co vs. Plata, 458 SCRA 326; Mabutas vs. Perello, 459
SCRA

Positive Law, Classified

1. Substantive law- generally refers to the enactment of the
legislative branch of the government, which define the
rights and duties of persons within the territorial
jurisdiction of the state. However, there are acts of
Congress which are regarded as procedural, like for
example our law on Land registration.
2. Remedial or procedural laws- refers the rules of
procedure prescribing the manner of enforcing such
rights and duties of persons.
Remedial or Procedural Law
Our remedial or procedural law is mainly contained in
the Rules of Court. However, there are other procedural rules
adopted and promulgated by the Supreme Court, among which
are the Rules or Examination of a Child Witness, which took
effect on December 15, 2000, the Rule on Electronic Evidence,
which took effect on August 1, 2001; the Rule on juveniles in
Conflict with the Law on April 15, 2002; the Rule on
Commitment of Children, also on April 15, 2002; the Rule on
Provisional Orders, on March 15, 2003 ; the Rule on Declaration
of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, on March 15, 2003; the Rule in the Conduct of Pretrial and Use of Deposition and Discovery Measures, Aug. 16,
2004.
The Rules of Court
The principal remedial law of our justice system is the
Rules of Court, It applies in all courts, and governs, except in
certain specific cases, the procedure to be observed in court
actions, civil or criminal actions, and special proceedings.
Court actions are classified as civil actions, criminal
action and special proceeding. A civil action is one by which a

party sues another for enforcement or protection of a right, or

the prevention or redress of a wrong. A criminal action is one
by which the state prosecute a person for an act or omission
defined as a crime and punishable by law. A special proceedings
Is a remedy by which a [arty seeks to establish a statute, a right
or a particular fact. (Sections 2 and 4 of Rules of Court)
Our course deals on the procedure of prosecuting a
criminal action. Our criminal procedure, which, took effect on
December 1, 2000,is comprised of Rules 110 to 127, inclusive.
Criminal procedure has been defined as the stages and
method prescribe by law through which a criminal action is
prosecuted, commencing from the time a suspect is
apprehended and charge with an act or omission punish by law,
p to the time the court pronounces him guilty or not guilty of
the crime imputed on him.
CRIMINAL JURISDICTION
Concept
It is the authority to hear and try a particular offenses
and to impose punishment for the offense prove. The criminal
jurisdiction of a court is determined by the geographical limits
of the territory over which it exercises its authority, and the
actions it is empowered to hear and decide.
Elements of valid exercise of criminal jurisdiction:
1. The court must have jurisdiction over the subject matter.
2. It must have jurisdiction over the territory where the
offense was committed.
3. It must have jurisdiction over the person of the
accessed.
How jurisdiction is acquired,
1. Over the subject matter- jurisdiction over the subject
matter is conferred by law. It is determined by the
statute in force of time of commencement of the action,
not at the time of its commission.
2. Territorial jurisdiction- Territorial jurisdiction criminal
cases is the territory as fixed by the Supreme Court
where the lower courts may take cognizance or try the
offense allegedly committed by the accused. It refers to
the place where the offense or any one of its elements
has been committed. It is determined by the allegations
of the complaint or information.

3. Over the person of the accused- jurisdiction over the

person of the accused is acquired upon his arrest or
upon his voluntary appearance, submitting himself to its
jurisdiction.
COURTS AND RESPECTIVE JURISDICTION IN CRIMINAL
CASES
1. Supreme Court
a. appeal by notice of appeal from Regional Trial
Court or Sandiganbayan in criminal cases
involving offense for which the penalty imposed
by the trial court is reclusion perpetua or life
imprisonment and those involving other offenses
which, although not so punished, arose out of
the same occurrence or which may have been
committed by the accused on the same
occasion.
b. Automatic review in criminal cases where the
death penalty is imposed by the Regional trial
court or the Sandiganbayan, has been abolish.
2. Court of Appeals
a. appeal by notice of appeal from the Regional
Trial Court and all other criminal cases not falling
under the exclusive jurisdiction of the Supreme
Court.
b. Petition for review in criminal cases decided by
the Regional Trial Court acting under its
appellate
jurisdiction
from
appeals
from
Metropolitan and Municipal Trial Courts, which is
not a matter of right.
3. Sandiganbayan
a. Exclusive jurisdiction over violation of Rep. Act.
No.3019 (Anti Graft), Rep. Act. No. 1379, and
chapter II,Sec.2, Title VII of the Reverse Penal
Code, and other offenses committed by public
officials and employees in relation to their office,
private individuals charged as co-principals,
accomplices and accessories including those
employed in government owned or controlled
corporations, where one or more of the accused
are officially occupying the following positions in
the government, whether permanent, acting or
interim capacity, at th time of the commission of
the offense:

1. Officials of the Executive Branch classified as

Trade 27 or higher
2. Members of Congress;
3. Members of the Judiciary;
4. Members of Constitutional Commission;
5. All other national and local officials classified as
Trade 27 is higher.
N.B: In cases where none of the accused are occu[yinh the
above positions, the original jurisdiction shall be vested in the
proper regional trial court or metropolitan trial court, etc., as the
case may be pursuant to their respective jurisdictions.
In cases where these no specific allegation of facts
showing that the offence committed in relation to the public
office of the accused, the original jurisdiction shall also be
vested in the proper regional trial court or metropolitan trial
court, etc., as the case maybe.
b. In criminal cases filed pursuant to and in
connection with Executive order Nos. 1, 2, 14
AND 14A (Section 2 of Republic Act 7975, as
amended by Republic ACT No. 8249)
4. Regional Trial Courts
a. Criminal cases not within the exclusive
jurisdiction of any court, tribunal or body.
b. Criminal cases where the penalty provided by
law exceeds sic years imprisonment irrespective
of time.
c. Criminal cases not falling with the exclusive
original jurisdiction of the Sandiganbayan where
none of the accused are occupying positions
corresponding to the salary grade 27 or higher.
d. Criminal cases where the only penalty, provided
by law is fine not exceeding P4000.
5. Family Courts
a. Exclusive jurisdiction over criminal cases where
one or more of the accused is below eighteen
years of age but not less than nine years of age.
b. Exclusive original jurisdiction in criminal cases
when one or more of the victims is a minor at the
time of the commission of the offence.
N.B: If the minor is found guilty, the court shall
promulgate sentence and ascertain in civil liability
which the accused may have incurred. However, the

sentence shall be suspended without need of

application pursuant to Presidential Decree No. 603,
the child and youth welfare code.
B. Metropolitan, Municipal. And Municipal Circuit Trial
Courts
1. Exclusive Jurisdiction over:
a. All violations of city or municipal ordinances committed
within their respective territorial jurisdictions.
b. All offences punishable with imprisonment of not more
than six years irrespective of the time and regardless of
other impossible accessory as other penalties and the
civil liability arising there from.
c. Exclusive original jurisdiction over offences involving
damages to property through criminal negligence.
d. All offences committed not falling within the exclusive
jurisdiction of the Sandiganbayan where none of the
accused is occupying positions corresponding to salary
grade 27 or higher.
e. In cases where the penalty provided by law is a fine not
exceeding P4000.
2. Except for Metropolitan Trial Courts in the National
Capital Region, concurrent with Prosecutors, to conduct
preliminary investigations of offences where the penalty
prescribed by law is at least four years, two months and
one day without regard to fine.
3. Special Jurisdiction over application for bail in the
absence of all Regional Trail Court Judges.
4. Summary Procedure:
a. Traffic violations
b. Rental Law Violations
c. Violations of City and Municipal Ordinances
d. All other cases where the penalty imposed by law
does not exceed 6 months and or fine of P1000.
SOURCE: Bench book for Trial Court Judges
Published by the Supreme Court of the Philippines.
RULE 110 Prosecutions of Offences
How are criminal actions instituted?

1. Where preliminary investigations is required by filing

the complaint with proper offices for the purpose of conducting
the requisite preliminary investigations.
1.a When preliminary investigation is required
where the penalty prescribed by law is at least four years, two
months and one day without regard to the fine (R-12, S-1)
1.b who are the officers authorized to conduct
preliminary investigation:
1. Provincial or city prosecutors or their assistants
2. Judges or municipal trial courts and municipal circuit
trial courts
3. National and regional state prosecutors.
4. Other officers as may be authorized by law (R-112, S2)
NOTE:
Their authority to conduct preliminary investigations shall
include all crime cognizable by the proper court in their
respective territorial jurisdiction. (Ibid)
2. Where no preliminary investigation is required by the
complaint or information directly with the Municipal Trial Court
or Municipal Circuit Trial Courts or the complaint with the office
of the prosecutor.
2.a. In Manila and other chartered cities, the complaint shall
be filed with office of the prosecutor, unless otherwise
provided in their charters.
2.b When is preliminary investigations not required.
2.b1 When the penalty prescribed by law is four yeas,
two months or lower.
2.b2 Offences subject to the rule on summary procedure.
2.b3 Where the accused is lawfully arrested with out
warrant, involving an offence which requires a
preliminary investigations, the complaint r information
maybe filed by the prosecutor without the need of such
investigation provided an inquest has been conducted.
(Rule 112, Section 7)
How does the institution of the criminal affect the
prescription.

The institution of criminal action interrupts the running

of the period of prescription of the offense charge unless
otherwise provided in special laws.
Is the period of prescription affected if the criminal
action is filed in the barangay?
Yes, the prescriptive period for the offense changed shall
be interrupted upon the filing of the complaint with the punong
barangay. But it shall resume upon receipt by the complainant
of the certificate or repudiation, or certificate to file action by
the lupon or pangkat secretary. Such interruption,however,
shall not exceed 60 days from the filing of the complaint
(sec.410-c, Katarungan Pambarangay Law.)
What is the
information?

prescribed

form

of

complaint

or

The complaint or information shall writing, in the name

of the people of the Philippines and against all persons who
appear to be responsible for the offense involved. (S.2 ).
Suppose the information was brought not in the name of
the people of the Philippines, may it be quashed.
No. because the defect is merely formal and may be
cured at any stage of the trial for a motion to quash to prosper
on the ground of defect in form, it must fail to confirm
substantially to the prescribe form.

May the information be quashed on the ground that it

does not charge all persons who appear responsible for
the offense involved?
No, because the prosecutor has the discretion to
determine who should be charged the information.
However, if he abuses his discretion by refusing to
include in the charge as a co accused despite sufficient
evidence therefore, he can be compelled by mandamus, as the
same amount to a deliberate refusal to perform a duty enjoined
by law.
Who may demand the inclusion of such person?

1. Such inclusion may demanded by those already charged

in the information;
2. The offended party may demand such inclusion.
What are the remedies of the offended party where the
prosecutor refuses to charge a person despite the fact
that the evidence warrants such action.
Answer: Regalado, pp. 270-271; Herrera, pp.
May injunction issue to restrain criminal prosecution?
The general rule is that criminal prosecution may not be
restrained or stayed by injunction, because public interest
requires that criminal acts be immediately investigated
prosecuted for the protection of society. However, the following
the exceptions:
Herrera, pp.48.
What is your concept of a criminal complaint?
A complaint is a sworn written statement charging a
person with an offense, subscribed by the offended party, a
peace officer or other public officer charged with enforcement
of the law violated.
NOTE: The complaint contemplated under this Rule is
one filed in court to commence a criminal action in those cases
where a complaint of the offended party is required by law, such
in some crimes against chastity, instead of an information which
generally by the prosecutor. This should be distinguish from a
complaint filed for the purposes of preliminary investigation
which may be filed by any person, unless the offense charged
cannot be prosecuted de oficio.

How will you define an information

An information is an accusation in writing charging a
person with an offense, subscribed by the prosecutor and filed
with the court. (S.-4).
Differentiate as complaint from an information

1. A complaint is subscribed by an offended party, a peace

officer or a public officer charged with the enforcement
of the law violated, while an information is subscribed by
a government prosecutor..
2. A complaint must be sworn by the offended party, by
peace officer or public officer charged with the
enforcement of the law violated, while an information
need not be sworn by the government prosecutor who
must, however, certify that a preliminary investigation
has been conducted, that a crime has been committed
and that the accused is probably guilty thereof.
3. A complaint is filed with the office of the government
prosecutor or the municipal trial court or municipal
circuit trial court for preliminary investigation, or directly
with the court where the offense charged cannot be
prosecuted de oficio, an information is always filed
directly with the court.
Who must prosecute a criminal action
As a rule all criminal actions, whether commenced by a
complaint or information must be prosecuted under the
direction and control of the government prosecutor. By this is
meant that the public prosecutor must be actually and
physically present in all stages of the criminal action, from the
arraignment to the promulgation of judgment. ( R-110,S.5)
Suppose no public prosecutor is available to prosecute
the criminal action, may the court proceed with a private
prosecutor handling the prosecution.
Yes, in case of heavy work schedule of the public
prosecutor or in the event of lack of public prosecutor, the
private prosecutor may be authorized by the chief of the
prosecution office or the Regional State Prosecutor to prosecute
the case subject to the approved of the court. (A.M. No. 02-207-SC, Res. Of the Supreme Court dated Apr. 10. 2002)
What is the extent of the authority of the private
prosecutor under A.M. No. 02-2-07-SC.?
Once authorized to prosecute the criminal action, the
private prosecution shall continue to prosecute the case up to
the end of the trial even in the absence of a public prosecutor
unless the authority is revoked or otherwise withdrawn. (ibid).

10

What is the scope of the authority of the public

prosecutor to control and direct the prosecutor of a
criminal action?
1. The public prosecutor determines what case should be
filed.
2. He determines who should be prosecuted.
3. He directs and controls the manner of prosecution.
4. He may withdraw the information without notice and
hearing before arraignment.
5. He may cause the amendment of the complaint or
information in form and substance without leave of court
at any time before the accused enters his plea.
6. He may determine what evidence to adduce to bolster a
successful prosecution of a criminal action.
What is the effect if trial in a criminal action proceeds
notwithstanding the absence of the public prosecutor?
In the absence of the conditions prescribed in Section ,
rule as amended SC, the actual by A. M. No. 02-2-07-SC,
the actual and physical presence of the public prosecutor is
indispensable for the validity of the proceedings in a
criminal case. (People v. Beriales , G.R. No. L-39962, March
3, 1977).
Hence, where the absence of the private prosecutor is
not justified under Section 5 of Rule 110 as amended it
cannot be said that the prosecution of the case was under
the control and direction of the public prosecutor and the
evidence prosecuted at such hearing cannot be considered
as evidence of the people. There was no evidence so to
speak of which could be the basis of the decision of the trial
court.
After the information or complaint has been filed in
court, does the public prosecutor retains control and
direction of the prosecution of the case.
The public prosecutor still retains the direction and
control of criminal case even after the information or
complaint has been filed in court. But he cannot impose his
opinion on the trial court. The court has the sole power on
what to do with the case before it. Any disposition of the
case, whether it should be dismissed, or whether the
accused should be convicted or acquitted, rest within the
exclusive jurisdiction and province of the court. ( Crespo vs.
Mogul.151 SCRA 462.)

11

Distinguish between the control of the prosecution and

control of the court.
Control of the prosecution is consist of : (1) what case to
file; (2) who to prosecute; (3) manner of prosecution.
However amendment of the information or complaint before
plea, which down grades the offense charged or excludes
any accused from the information or complaint must be
made only upon motion of the prosecutor with notice to
the offended party and with leave of court ( Sec. 14, 2nd par.)
Control of the court once the case is filed is (1)
suspension of arraignment; (2) reinvestigation; (3)
prosecution of the case by the prosecutor; (4) dismissed.
L.E.C.. The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse.
The offended party cannot institute criminal prosecution
without including both guilty parties, if both are alive, nor, in
any case, if the offended party has consented to the offense
or pardoned the offenders. (Sec. 5, 2nd par.)
This rule is based on Art.344 RPC, which likewise
provides that the crimes of adultery and concubinage shall
not be prosecuted except upon a complaint filed by the
offended party, and that the offended party cannot institute
criminal prosecution without including both the guilty
parties if they are both alive, nor in any case, if he shall
have consented or pardoned the offenders. (Art.344 of the
Rev. Penal Code, 1st & 2nd pars.)
Under Art. 344 of the Rev. Penal Code, the crimes of
adultery and concubinage cannot be prosecuted except
upon a sworn complaint filed by the offended spouse.
Compliance with this rule has been hold to be jurisdictional,
and not merely a formal requirement. By this is mean
jurisdiction over the case, because It is the complaint which
stars the prosecutory proceeding. It is not the complaint
which confers jurisdiction on the court over the prosecution
of the crime which is the subject matter is vested by the
judiciary law. ( People vs. Dela Cruz, G.R. No. 135022, July
11, 2002).
However, the complainant must have the status,
capacity or legal representation to do so at the time of the
filing of the criminal action that is, the complainant is legally

12

married to the offending spouse at he time the complaint

was filed.
What is your concept of private crimes.
Private crimes refers to felonies which cannot be
prosecuted except upon complaint of the private offended
party. Private crimes include (1) adultery and concubinage;
92) seduction, abduction, or acts of lasciviousness; (3)
criminal action for defamation which consist in the
imputation of the offenses of seduction, abduction or acts of
lasciviousness.
N.R: Rape is not a private crime anymore in view of Rep. Act.
No. 8353, The Anti-Rape Law of 1997, which took effect on
Oct. 22, 1997 reclassifying rape as a crime against person
and can now be prosecuted even without the complaint of
the private offended party.
How are the private crimes of seduction, abduction and
acts of lasciviousness prosecuted.
These felonies are prosecuted upon the complaint of the
offended woman, even if she were a minor.
But if the minor offended woman not or cannot file the
complaint for the outrage, her parents, grandparents, or
legal guardian, successively in this orders of preference,
may file the action.
If the offended minor woman dies or becomes
incapacitated before she can file the complaint and she has
no known parents, grandparents or guardian, the state shall
initiate the criminal action in her behalf.
However, if the offended woman is of age she alone, and
no others, may file a complaint.
Suppose the offended woman is a minor, she has no
known parents, grandparents or legal guardian, but
except for her minority age she suffers from no other
incapacity to file the complaint, may the state file the
criminal action in her behalf if she fails to do so.
What is the underlying reason for the mandatory
requirement that the private offended party must file a
complaint to commence the prosecution of a private
crimes.

13

A complaint of the offended party, or her relatives, as

the case may be required in private crimes, is based on the
consideration for the private offended party and her family
who might prefer to suffer the outrage in silence rather than
go through with scandal of a public trial. The law deems it
he wiser policy to let the aggrieved private party and her
family decide whether to expose to public view or to heated
controversies in court the vices fault and disgraceful acts
occurring in the family. (People vs. Dela Cruz, G.R.
No.135022, July 11, 2002.)
What is the difference between consent and pardon in
adultery and concubinage
1. In Adultery and concubinage consent refers to future
acts, while pardon refers to past acts,.
2. Consent granted only to the offending spouse absolves
both offenders from criminal hability. Pardon must be
extended to both offenders to absolve them from
criminal hability.
Who may extend consent or pardon in crimes of adultery
or concubinage?
In the crime of adultery or concubinage, only the
offended spouse,even if a minor, but not otherwise
incapacitated, can validly extend the pardon or consent
contemplated therein.
Pardon or consent in the crimes of adultery or
concubinage may be expressed or implied.
In the crimes of seduction, abduction or acts of
lasciviousness, who may extend pardon to the offender.
1. Of the offended woman is of age and not otherwise
incapacitated, she alone can extend a valid pardon
which would absolve the offender from any criminal
liability for said offenses.
2. The offended minor, if with sufficient discretion, may
validly pardon the accused by herself if she has no
parents, or were the accused is her father and her
mother is dead.
3. With conformity of the minor offended woman, her
parents, grandparents or legal guardian may extend
a valid pardon to the offender
What is the effect of death of the offended spouse in the
crimes of adultery or concubinage?

14

1. If the death of the offended spouse took place before

the filing of the complaint, his death bars further
prosecution.
2. If the offended spouse died after then filing of the
complaint, his death will not present the proceeding
from continuing to its ultimate conclusion.
In the complex crime of rape with forcible abduction, in a
complaint filed by the offended party necessary to start the
prosecutory process. (see regalado p. 294)- no, public interest is
paramount to private interest.
N.B. the crime of defamation for imputing on the offended party
the crimes of concubinage, adultery, seduction, abduction,
rape, acts of lasciviousness can be prosecuted only by the party
or parties defamed.
Suppose in the course of a heated argument, Pedro in
the presence of many persons, called Juan a rapist for having
alleged, rape several young woman in their town. May Sergio,
cousin of Juan who heard the imputation, charged Pedro with
defamation before the court?
Suppose Pedro called Juana, a married woman, a
prostitute, thereby impliedly imputing adultery on her. Is a
sworn complaint of Juana necessary to charge Pedro with
defamation? (Regalado pp. 294-295) Yes, because prostitution
is a public crime.
Section 6 - Sufficiency of complaint on information.
A complaint or information is sufficient if it states the
name of the accused; the designation of the offense given by
the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate
date of the commission of the offense; and the place where the
offense was committed.
Rule 110- Section 6
information.

Sufficiency of

complaint

or

NOTES
1. The purpose of this section is to inform the accused
of the nature and cause of the accusation against
him, a right guaranteed by no less than the
fundamental law of the land. (people v. Cutamora et.
Al. GR No. 133448-53, Oct. 6, 2000). The Constitution

15

specifically provides that the accused must be

informed of the nature and cause of the accusation
against him to enable him to prepare for his defense.
2. The objectives of this right are: (1.) to furnish the
accused with such description of the charge against
him as will enable him to make his defense. (2). to
avail himself of his conviction or acquittal as
protection against further prosecution for the same
cause; and (3). to inform the court of the facts
alleged, so that it may decide whether they are
sufficient in the law to support a conviction should
one be had. (Pecho v. Pejale, 262 SCRA 518; People v.
Cutamora, supra.)
3. An indictment must fully state the elements of the
specific offense alleged to have been committed as it
is the recital of the essentials elements of the crime
charged which delineates the nature and cause of
the accusation against the accused. (People v.
Cutamora, supra).
4. An information is sufficient as long as it states the
statutory designation of the offense and the acts or
omission constituting the same.
It is likewise
sufficient if the time averred is near the actual date
as the information of the prosecuting officer will
permit. ( People vs. Cutamora, supra.)
5. An information is deemed sufficient if it states,
among others, the designation of the offense given
by the statute and the acts or omission complained
of as constituting the offense. ( Flores, etal. Vs.
Layosa, etal., G.R. No. 154714, Aug. 12, 2004.0
6. However the designation of the offense by making
reference to the section or subsection of the statute
punishing it, is not controlling; what actually
determines the nature and character of the crime
charged are the facts alleged in the body of the
information. ( Ibid.)
7. The contradiction, therefore, between the caption of
the information and the facts stated in the body is
immaterial . The facts stated in the body of the
information determine the crime of which the

16

accused stands charged and for which he must be

tried. ( U.S. LIM SAN, 17 Phil.273.)
8. The test of sufficiency of information is whether it
enables a person of common understanding to know
the charge against him, and the court to render
judgment
property.
(
People
vs.
Lab.eo,
G.R.No.133438, jan. 16, 2002.)
9. The purpose of the rule is in order not to violate the
accuseds constitutional right to be properly informed
of the nature and cause of the accusation against
him, and to allow him to fully prepare for his defense,
precluding surprises during the trial. ( People vs.
Lab.es, supra.)
10. The general rule is that a defective information
cannot support a judgment of conviction unless the
defect was cused by evidence during the trial and no
objection appears to have been raised in the trial
court. (Abunado vs. People, March 30, 2004, G.R.no.
159218.)
11. However, substantial defect in the information
cannot be cured by evidence for that would
jeopardize the right of the accused to be informed of
the true nature of the offense charged.
The presentation of evidence cannot validate a void information
which does legally exist.
SEC. 7.- Name of the accused.
1. Error in the name or identity of the accused should be
raised on arraignment, otherwise he is deemed to have
waived the question of his identity.

Rule 110, Section 8. Designation of the Offense

NOTES
1.

17

While it is true that the statutory designation should be

stated in the information, a mistake, however, in the
caption of an indictment in designating the correct

name of the offense is not a total defect as it is not the

designation which is controlling but the facts alleged in
the information which determines the real nature of the
crime. (People v. Bustinera, G.R. No. 148233, June 8,
2004).

18

2.

Although the qualifying circumstances that the victim

was under 18 years old and the offender was her
guardian and have been duly proven these
circumstances cannot be appreciated against the
accused for purposes imposing the death penalty,
because they were not alleged in the information to
consider said circumstances as qualifying would
constitute denial of the right of the accused to due
process and to be informed of the charger against him. (
People vs. Villor, G.R. NO. 132378, Jan. 18, 2000.)

3.

Section 8 of Rule 110 requires that the complaint or

information must specify the qualifying and aggravating
circumstances of the offense if they are to be
appreciated. If the prosecution facts to allege such
aggravating or qualifying circumstance in the
information or complaint, the court cannot consider any
of them even if the same was proved at the trial.
( People vs. Dam Ave, G.R. NOS. 137274-75, OCT. 18,
2002.)

4.

Sections 8 and 9 of Rule 110 of the Revised Rules on

Criminal Procedure, which took effect on December 1,
2000, now require the qualifying as well as aggravating
circumstances to be expressly and specifically alleged in
the complaint or information otherwise the same will not
be considered by the court even if proved during the
trial. (people vs. Costales, etal, G.R. Nos. 14115-56, Jan.
15, 2002.)

5.

The requirement for complete allegations on the

particulars of the indictment is based on the right of the
accused to be fully informed of the nature of the
charges against him so that he may adequately prepare
for his defense, pursuant to the due process clause of
the Constitution. (People vs. Dante, G.R. No.127652,
December 5, 2001.)

Rule 110, Section 9 Cause of the accusation

NOTES
1. The information need not use the language of the
statute in stating the acts or omissions complained of as
constituting the offense. What is required is that the
acts or omissions complained of as constituting the
offense must be stated in ordinary and concise language
to enable a person of common understanding to know
the offense charged. ( People vs. Cadampag, G.R. No.
148144, Apr. 30, 2004.)
2. Section 8 and 9 of Rule 110, as now revised, both require
that qualifying and aggravating circumstances should be
alleged in the information. Both circumstances should
be expressly and specifically alleged in the complaint or
information, otherwise neither would be considered by
the court even if approved during the trial. This doctrine
applied to all criminal cases.
3. Suppose the public prosecutor omitted to allege in the
information,
either
aggravating
or
qualifying
circumstance, may the information be amended to
supply the omission.
a. Before arraignment the omission may be
remedied by amending the information upon
motion.
b. After arraignment the omission may be
supplied by amending the information with
have of court provided the same would not
be prejudicial to rights of the accused, since
amendment would be a formal one;
otherwise the victim of the crime might be
denied the full measure of justice through
official negligence or inaptitude. (Regalado,
p. 300.)
Section 10.- place of the commission of the offense.
Venue in criminal cases is an essential element of
jurisdiction.
The court, however, may take judicial notice that the
place where the crime was committed, or some of the essential
elements of the crime took place is within its territorial
jurisdiction.
Where the place of commission is an essential element
of the crime robbery in an inhabited place, public building or

19

place of worship; or is necessary to identity the offense

destructive arson, the place of commission must be alleged
with particularity.
Section 11.- Date of the commission of the offense.
It is not necessary to state in the complaint or
information the precise the offense was committed, unless such
date is an essential element of the offense, such as in election
related offenses, infanticide where the victim must be less than
three days. The rule requires that the allegation be only as near
as possible to the actual date of the commission of the crime.
Section 12 name of the offended party.
How should the offended party be designated in the
complaint or information.
1. The complaint or information must state the name and
surname of the person against whom or against whose
property the offense was committed.
2. If the name and surname of the offended party is
unknown, he should be designated by any appellation or
nickname or alices by which he is known.
3. If the offended party cannot be identified by any better
way, he must be described under a fictitious name
4. In crimes against property, if the name of the offended
party is unknown, the property must be described with
such particularity as to property identity the offense
charged.
5. if the true name of the offended party is disclosed the
court must cause such true name to be inserted in the
complaint or information, and the record.
6. If the offended party is a juridical person it is sufficient
to designate or identify it by the name by which it is
known without alleging that it is a juridical person.
What is the effect of error in the designation of the
offended party.
1. As a rule the error in the designation of the offended
party is not reversible where the offense committed can
still be ascertained despite such error.
2. However, where the identity of the offended party is an
essential element of the offense charged, an error in
such designation is fatal. In robbery with homicide the

20

name of the person robbed is an essential element of

the crime; in oral deformation.
Section 13 Duplicity of the offense.
What does duplicity of offense under Section 1 & 4 Rule
110 signify.
There is duplicity of the offenses when the complaint or
information charges more than one offense, except when the
law prescribes a single punishment for various offenses. Thus,
a complaint or information is defective when it charges two ore
offenses.
What is the purpose of the Rule.
The purpose of the rule is to give the accused the
necessary knowledge of the charge to enable him to prepare
and prove his offense. The prosecution should not heap upon
the accused two or more charges which may confuse him in his
defense.
What is the remedy of the accused if the complaint or
information charges two or more offense.
The accused should move to quash the complaint or
information before he infers his plea. Otherwise, the flaw in the
complaint or information is denied waived, and the accused can
be convicted for as many offense charge and the prosecution is
able to prove beyond reasonable doubt.
Pedro armed with an Uzi which is an automatic firearm,
massacred ten persons with just one press of the trigger. As
public prosecutor you decided to charge Pedro with murder for
killing ten individuals. How many informations would you file
against Pedro. Why? (text p. 105).
Suppose instead of an Uzi, Pedro used an ACP .45
caliber, semi-automatic pistol in killing those ten victims. How
many informations will you file under the circumstances. Why?
(Ibid)
What is your concept of delicto continuado?
For delicto continuado or continuing crime to exist,
there should a plurality of acts performed during a period of
time, unity of penal provision violated and unity of criminal
purpose or intent, which means two or more violations of the

21

same penal provisions are united in one and the same intent or
resolution leading to the perpetration of the criminal purpose as
aim.
As a public prosecutor you are confronted by a delicto
continuado committed by Pedro. How many informations would
you file against him. Why?
The rule on duplicity of the offense accepts an exception, that
is, when the law prescribes a single punishment for various
offenses. Will you elucidate on this exception.
The exception to the rule against duplicity refers to the
complex crimes under Art. 48 of the Revised Penal Code
wherein a single penalty is imposed and the special complex
crimes or composite crimes penalties therein. (Arts. 266-B, 267,
294, 297 and 320, amended). Where the allegations of the acts
imputed to the accused are only to show the modes of
commission of the crime or are merely different counts
specifying the acts of perpetration of the same crime. There is
no duplicity. There is likewise no duplicity when the other
offense or essential element of the real offense charged as
when the several acts stated are related in describing the
offense. (People v. Camerino, et. Al, 108 Phil. 79.).
Section 14- Amendment or Substitution of information.
1. The complaint or information may be amend in form and
substance without leave of court, at any time before the
accused enters his plea.
2. However, after the accused has pleaded, and during the
trial, a formal amendment can be made only with leave
of court and when his can be done without causing
prejudice to the right of the accused.
3. But any amend even when done before the accused
enters his plea requires the motion of the prosecutor,
notice offended party and leave of court where the
amendment will down grade nature of offense charge or
will exclude an accused from the complaint or
information. Whether the court grants or denies the
motion it must state the reasons in resolving the motion
and shall furnish copies of its order to all the parties,
especially the offended party.
When may an information be substituted with a new
one?

22

If it appears at any time before judgment that a mistake

has been made in charger the proper offense, the court shall
dismiss the original complaint or information upon the filing of
the new one charging the proper offense in accordance with
Section 19, Rule 119, provided the accused shall not be placed
double jeopardy. (Sec. 14, 14th par. Rule 110)
Section 19 of Rule 119 states that when it becomes
manifest at any time before judgment that a mistake has been
made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense
necessarily included therein, the accused shall not be
discharged if there appears good cause to detain him. In such
case, the court shall commit the accused to answer for the
proper offense and dismiss the original case upon filing of the
proper information.
What are the differences between an amendment and a
substitution of the information?
Amendment and substitution differ in the following
manner:
1. Amendment may be either formal or substantial
changes; substitution always involves a substantial
change from the original charge.
2. Amendment before the accused has entered his plea can
be made without leave of court; substitution of
information must be leave of court as the original
information has to be dismissed.
3. Where the amendment is only as to form, there is no
need for another preliminary investigation and the
retaking of the plea; in substitution of information
another investigation is entailed and the accused has to
plead a new to the new information.
4. An amendment refers to the same offense charged in
the original information or to an offense which
necessarily includes or necessarily included in the
offense charged, hence, substantial amendments to the
information after the plea has been taken cannot be
made over the objection of the accused for if the original
information would be withdrawn, the accused could
invoke double jeopardy; whereas substitution requires or
presupposes that the new information involves a
different offense which does not include or is not
necessarily included in the original charge, hence, the
accused cannot claim double jeopardy.

23

What are the essentials requisites in order that an

amendment of information may be allowed even after
arraignment?
After arraignment, jurisprudence allows amendment to
information so long as:
1. It does not deprive the accused the right to invoke
prescription.
2. It does not affect or alter the nature of the offense
originally charged.
3. It does not invoke a change in the basic theory of the
prosecution so as to require the accused to undergo
any material change or modification in his defense.
4. It does not expose the accused to a charge which
would call for a higher penalty.
5. It does not cause surprise nor deprive an accused of
an opportunity to meet the new averment.
(Gabrionza v. CA. et al. GR. NO. 140311, March 30,
2001).
6. If the amendment is only a matter of form, that is, it
merely state with additional precision the same thing
which is already contained in the original information
and which therefore adds nothing essentials for
conviction of the crime charged.
When may amendment to an information be considered
as not prejudicial to the rights of the accused?
The test as to when the rights of the accused are
prejudicial by the amendments to an information is when a
defense under the complaint or information as it originally
stood, would no longer available after the amendment is made
and when any evidence which the accused might have would no
longer be available or be inapplicable to the complaint or
information as amended. (Gabrionza v. CA et al. GR No. 140311
March 30, 2001, Poblete, et al. v. Hon, Sandoval et al, infra. No.
48)
The amendments are merely formal when they do not
touch upon the recital of facts constituting the offense charged
nor on the determination of the jurisprudence of the court such
amendment is only not in form. An amendment is only in from
when it merely adds specifications to eliminate vagueness in
the information and not to introduce new and material facts,
and merely states with additional precision something which is
already contained in the original information and which

24

therefore, adds nothing essential for conviction for the crime

charged. (Poblete, et al vs. Hon. Sandoval et al. GR. No. 150610,
March 25, 2004).
Section 15- Place where action is to be instituted
1. As a rule, subject to existing law, the criminal action
should be instituted and tried in the court of municipality
or territory where the offense was committed or where
any of its essential ingredients occurred.
2. Where an offense is committed in a train, aircraft or
other public or private which course of its trip, the
criminal action should be instituted and tired in the court
of the municipality or territory where such train, aircraft
or other vehicle passed during its trip, including the
place of its departure and arrival.
3. Where an offense is committed on board a vessel in the
course of its voyage, the criminal action should
instituted in the court of the first port of entry or any
municipality or territory where the vessel passed during
such voyage subject to the generally accepted principles
of internal law.
4. crimes committed outside the Phil. But punishable under
Article 2 of the Rev. Penal Code shall be cognizable by
the court where the criminal action is first filed. Art.2 of
the Rev. Penal Code (See Notes Next Pp.)
What is the effect if the criminal action is instituted in a
wrong venue?
All the proceedings taken in the prosecution of the
criminal action is null and void, because in criminal actions
venue is an element of jurisdiction. It cannot be waived, unlike
in civil actions

Suppose A killed B on board the MV Marina which was

sailing from Manila Bay on its voyage to Zamboanga
City. A criminal action for murder was instituted against
A in the RTC of Zamboanga City.
A moved for the
quashal of the information on the judge handling the
case, how will resolve the motion.
The motion to quash the information should be denied,
because in offense committed on board a vessel in the course

25

of its voyage, the proper court is the court in the first port of
entry or of any municipality or territory through which the
vessel passed during such voyage subject to the generally
accepted principle of international law. Where the crime was
actually committed is immaterial, where the crime is committed
while the vessel is in transit, which means while passing from
on place to another in the course of this voyage.
NOTES
1. Par.(a) states the general rule on venue i.e, where the
offense was committed or, as in continuing offense,
where any of the essential ingredients of the crime took
place.
Exceptions:
1-a. This rule does not apply to cases originally
cognizable by the Sandigabayan which is a court
of nationwide jurisdiction.
1-b. This rule does not also cover-libel case which
are subjects to special rules of venue in both civil
and criminal aspects.
2. Under par.(b) the aircraft must be in flight within the
territory of the Philippines when the crime was
committed, otherwise the rule in par.(d) applies:
2-a. In case of train or other land vehicle, the
offense must be committed while the same is in
motion. If the train or land vehicle is stationary in
an intermediate stop or station, the rule in par.(a)
governs.
3. Par. (c) applies where the offense is committed in the
course of a voyage of a Philippine vessel within
Philippine territorial waters,
3-a. However, the port or point of departure is not
included as an alternative venue.
3-b. Where the offense is committed aboard a
Philippine vessel while navigating outside Phil.
Waters, the rule in Par. (d) applies, as this one of
the cases where phil. Courts have extraterrestrial
jurisdiction.
3-d. In case of a private foreign vessel, it is
necessary that the Philippines is a port of entry of
said vessel.

26

3-e. If the private foreign vessel was merely In

transit within the Phil. Waters, the offense is not
triable by Phil. Courts, unless the offense
produces pernicious effects in this country, as in
case of possession and/or use of dangerous
drugs.
RULE 111 PROSECUTION OF CIVIL ACTIONS
INTRODUCTION:
The substantive bases of Rule 111 are the RPC and the
Civil Code pursuant to Art. 100 of the Penal Code, every person
criminally liable for a felony is also civilly liable. The civil liability
includes: (1) restitution, (2) reparation of damage cause, and
(3) indemnification for consequential damages. (Art. 104,R.P.C.)
Except in case of extinction of his civil liability as provided in
Art. 112 of the R.P.C., the offender shall continue to be obliged
to satisfy the civil liability resulting from the crime committed
by him regardless of whether or on the has served his sentence
consisting of deprivation or liberty or other rights. 9 Art.
113,R.P.C.)
The civil code on the other hand, provides that civil
obligations also arise from acts or omissions punished by law,
quasi-delicts, and international torts. ( See reverse of opposite
page.)
Thus, an act or omission which cause damage to another
may give rise to two types of separate civil liabilities: One,
under the Revised Penal Code and the other under the Civil
Code. The first by virtue of Art. 100 of the RPC; the second
under arts. 32,33,and 34 of the Civil Code called intentional
torts and Art.2176 known as culpa acquiliana . These civil
liabilities are separate, distinct and independent of the criminal
liability of the offender. However the offended party cannot
recover damages twice for the same act or omission. Or under
both causes of action. ( Art.2177, Civil Code; Cancio vs. Isip,
G.R. No.133978, Nov. 12,2002.)
Rule 111 provides the procedure for the prosecution of
the corresponding civil action to recover the civil liabilities of a
person which arise from his act or omission.
Section 1&2 Institution of criminal and civil actions.
( Outline)

27

1. Generally Where a criminal action is instituted the

civil action for recovery of the civil liability arising from
the offense charged is deemed instituted with the
criminal action.
2. Exception
Where the offended party waives the civil action;
Where he reserves the right to institute it separately;
The reservation should be made before the
prosecution starts presenting its evidence,
- In every case the offended party should be given
reasonable opportunity to make such reservation.
Where the offended party instituted the civil action
prior to the criminal action.
Effects:
Where trial of the civil action has not started, it
may be consolidated with the criminal action
upon application filed with the court trying the
criminal action.
Where the trial of the civil action filed prior to
the filing of the criminal action, has started,
the proceedings in the civil action should be
suspended at whatever stage it may be
found.
However, if before judgment on the merits is
rendered in the civil action, the offended party
moves for its consolidation with the criminal
action, the court trying the criminal action
may consolidate the two cases and decide
them jointly.
Effect of consolidation. the evidence
already adduced in the civil action shall be
automatically reproduced in the criminal
case without prejudice to the right of the
prosecution
to
cross
examine
the
witnesses presented by the offended
party.
Effects of suspension of the civil action;
The period of prescription is tolled.
The extinction of the penal action does
not carry with it the extinction of the
civil action.
- in quasi-delict the civil action is deemed
extinguished if the court adjudged the
act or omission from which the civil
liability arises did not exist.

28

3. After the criminal action has been commenced, no

separate civil action arising from the offense charged
can be instituted until final judgment has been in the
criminal action.
4. Filing fees
Actual damages no filing fee is required
Moral, temperate, nominal, and exemplary damages
filing fees are assessed on the basis of the amount
alleged in the information. If no amount is alleged
but the offended party seeks or recovers such
damages, the filing fees shall constitute a first lien on
the amount awarded.
5. Counter claim, cross-claim, third party complaint are
not allowed to the accused, but he may file a separate
civil action to recover the same.
What civil liability is deemed instituted with the
criminal action?
Only recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action.
Thus, civil liabilities arising from intentional torts under
Arts. 34,33, and 34 of the Civil Code, or arising from quasidelict under Art.2176 and 2177, or arising from culpa
contractual are not deemed instituted with the criminal
action and may be proceeded separately and independently
of the criminal action. These civil liabilities are beyond the
coverage of Rule 111/
However, the offended party cannot recover civil
damages twice for the same act or omission.
What effect has the institution of the civil action with
the criminal action to recover the civil liability arising
from the offense charged on the employer of the
offender?
As the employer is in substance and effect, a party in the
criminal action against his employee, the employer would
be subsidiarily liable, as imposed on him by law, for the civil
liability adjudged by the court on the employee.
What should the offended party prove to hold the
employer subsidiarily liable for the civil liability
established against the employee?

29

1. Existence of employer-employee relationship;

2. That the employer is engaged in some kind of agency;
3. That he employee is adjudged guilty of the wrongful act
and found to have committed the offense in the
discharge of his duties (not necessarily any offense).
4. The said employee is insolvent.
May consolidation of civil actions with the criminal
action be allowed where the civil action is not to enforce
civil liability arising from a crime?
A court may order several actions pending before it to be
tried together where they arise from the same act, event or
transaction, involve the same or similar issues, and depend
largely or substantially on the same evidence; provided, the
court has jurisdiction over the case to be consolidated and that
a joint trial will not give one party as undue advantage or
prejudice the substantial rights of any of the parties.
Is it necessary that consolidation of the civil and
criminal cases the court must have jurisdiction over both
cases?
In Cojuangco vs. CA 203 SCRA 619, and Mckee vs, IAC
211 SCRA 517, The rule on jurisdiction in criminal cases which is
determined by the prescribed penalty, regardless of other
imposable accessory or other penalties, included in the civil
liability arising from the offense or predicated therein
irrespective of kind, nature, value or amount thereof. No longer
applies since the civil action to be consolidated does not arise
from the criminal offense charged.
To what civil action does prescription under this Rule
apply.
The period of prescription of the civil action which
cannot be instituted separately or whose proceeding has been
suspended shall not run, refers to civil action arising from a
crime that has been reserved and suspended.
What the effect of judgment is of acquitted on the civil
liability of the defendant?
If the accused is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, his acquitted
will not bar recovery of civil liability which may be
demonstrated by, more preponderance of evidence.

30

But if he is acquitted because the court finds that no

crime has been committee, his acquitted bars recovery of civil
liability.
Suppose the court finds that the guilt of the accused had
not been established beyond reasonable and accordingly
renders judgment acquitting him.
May the court
adjudge the civil liability of the accused in the same
judgment of acquitted.
In the case of Padilla vs. Court of Appeals,129 SCRA and
subsequent case, the Supreme Courts hold that the court may
award civil liability in the same judgment even if the accused if
acquitted, In other words, despite the acquitted of the accused,
if the act of omission from civil liability might arise in fact exist
and the acquit of the accused not been demonstrated beyond
reasonable doubt, then the court should award the civil liability,
in focus of the offended party in the same criminal action.
Under these circumstance the duty of the court to
adjudge and award civil liability in spite of acquitted may be
compiled by mandamus.

In what instances may the court award civil liability

despite acquitted accused.
1. Where the acquittal is based on reasonable doubt;
2. Where the decision contains a declaration that the
liability of the accused is not criminal but only civil;
3. The civil liability is not derived from or based on the
criminal act of which the accused is acquitted.
In what instances may a civil action proceed
independently and separately from the criminal action.
In cases covered by Articles 32,33,34 and 2176 of Civil
Code, the independent civil action brought by the offended
party shall proceed separately and independently of the
criminal action. The civil action requires only a preponderance
of evidence. But the offended party cannot recover damages
twice for the same act or omission charged in the criminal
action. (Sec. 3, Rule 111).
What is the effect of death of the accused on the civil
action based on the offense charged?

31

1. Where death of the accused occurs after his

arraignment and during the pendency of the criminal
action, his death shall extinguish his civil liability arising
for the crime charged.
2. Where the accused dies before arraignment, the
criminal action shall be dismissed without prejudice to
any civil action the offended party may file against the
estate of the deceased.
3. Where the accused dies during the pendency of his
appeal from the judgment of conviction his death
extinguishes both his criminal and civil liabilities.
( Regalado,p.597). But the civil liability must be one
directly arising from and based solely on the offense
committed, that is civil liability ex-delicto in sense strict
ore. (Ibid).
N.B:

1. The claim for civil liability survives the death of

the accused if it is predicated upon a source of
obligation other than a delict. (Ibid ).

3. An action for the recovery of the surviving civil liability,

not arising from delict, may be pursued only by filing a
separate civil action against the executor/ administrator
or estate of the accused.
Suppose a final judgment is rendered in a civil action
absolving the defendant from civil liability, what effect
will such favorable judgment have on the criminal
action?
A final judgment rendered in a civil action absolving the
defendant from civil liability is not a bar to the criminal action
against the defendant for the same act or omission subject of
the civil action. ( Sec. 5, Rule 111), unless the civil is a
prejudicial question.
Before whom may prejudicial question be properly
raised?
1. Before a criminal action is filed for trial, a petition for
suspension of the criminal action in a civil action may be
filed in the office of the prosecutor or the court
conducting the preliminary investigation.

32

2. After the criminal action has been filed in court for trial
on the merits, the petition to suspend shall be filed in
the same criminal action at any time before the
prosecution rests. (Sec. 6, Rule 111)
What is your concept of a prejudicial question?
1. A prejudicial question has been defined as one based on a
fact distinction and separate from the crime but so intimately
connected with that it determines the guilt or innocence of the
accused, and for it to suspend the criminal action, it must
appear not only that said case involves facts intimately related
to those upon which the criminal prosecution could be based
but also that in the resolution of the issue or issues raised in the
civil case, the guilt or innocence of the accused would
necessarily be determined. (Arthur Te vs. Court of Appeals, Et.
Al., G.R. No. 126746, November 29, 2000; Abunado vs. People,
G.R. No. 159218; Security Bank Corp. vs. Victorio, 468 SCRA
609).
2. A prejudicial question must be based on a fact distinct
and separate from the crime, because if both actions arose from
the same fact or transaction, the civil case will not constitute a
prejudicial question to the determination of the criminal action.
Neither is there a prejudicial question if the civil and criminal
actions can, according to the law and rules, proceed
independently of each other. (People vs. Delizo, G.R. No.
142624, August 17, 2004).
3. Thus, if the issues raised in a civil action are so
similarly or intimately related to those in the criminal case such
that the resolution of the said issues in the civil case are
determinative of the juris et de juri of the guilt or innocence of
the accused in the criminal case, the proceedings in the
criminal case shall be suspended and the civil action shall
proceed until judgment on the merits. (People vs. Delizo,
Supra.)
4. The rationale behind the principle of prejudicial
question is to avoid the occurrence of two conflicting
decisions.
State the elements of a prejudicial question

33

1. There must be a previously instituted civil action

which involves an issue similar or intimately related
to the issue raised in the subsequent criminal action;
2. The resolution of such issue determines whether or
not the criminal action may proceed. In other words,
resolution of such issue would determine whether or
not the accused is guilty.
NOTES:
The first element requires: (1.) The previous institution of
the civil action; (2.) The subsequent institution of a criminal
action: (3.) The issue in the civil action is the same or intimately
related with the issue in the criminal action.
Mark it, for the principle of prejudicial question to
operate, the issues in the criminal and the civil actions are the
same or intimately related to each other. But the fact or
transaction is distinct and separate from the crime.
What are the requisites for a prejudicial question to
exist.
1. There must two court actions-one civil and the other
criminal. (Security Bank vs. Victorio, 468 SCRA 609).
2. The civil action must be previously instituted.
3. The civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal
action.
4. The civil action must based on a fact distinct and
separate from the crime, but so intimately connected
with the facts of the crime.
5. The resolution of the issue in the civil case should
determine whether or not the criminal action may
proceed.
Prejudicial question is the exception to the general rule
of the precedence of criminal action over civil action.
The general rule is that in case the civil action is
instituted ahead of the criminal action, under Sec. 2 of Rule
111, the civil action, arising from the offense subject of the
criminal action, said civil action shall be suspended in whatever
stage it may be found before judgment on the merits upon the
commencement of the criminal action. Such criminal action has
precedence over the civil action to enforce the civil liability of
the accused from the delict. An exception, however, exist where

34

is a prejudicial question as defined in Sections 6 & 7 of Rule

111.
When does a prejudicial question exist.
A prejudicial question exists where the issue or issues
raised in the civil action is/are so similarly or intimately related
to those in the criminal case such that the resolution of the said
issue/issues in the civil case is/are determinative of the guilt or
innocence of the accused in the criminal case.
Thus, a prejudicial question is one based on a fact
distinct and separate from the crime because if both actions
arose from the same fact or transaction, the civil case would not
constitute a prejudicial question to the determination of the
criminal action. Neither is there a prejudicial question if the civil
and the criminal actions can, accordingly to law and the rules,
proceed independently of each other. (People vs. Delizo, G.R.
No. 141624, August 17, 2004.)
What is the concept of the preliminary investigation.
Preliminary investigation is an inquiry or proceeding to
determine whether there is sufficient ground to engender a
well-founded belief that a crime had been committed and the
respondent is probably guilty thereof, and should be held for
trial. (Sec. 1 Rule 112.)
LECTURE- A preliminary investigation is an inquiry whether:
(a.) A crime has been committed and (b.) whether there is
probable cause to believe that the respondent is guilty thereof
and should be held for a trial. Probable implies probability of
guilt and requires more than base suspicion but less than
the evidence which would justify a conviction. (Preferred Home
Specialties, Inc. vs. Court of Appeals, 478 SCRA 387.) Probable
cause, however, does not mean actual or positive cause;
neither does it impost absolute certainty. (Fuentes, Jr. vs. Office
of the Ombudsman, 474 SCRA 779). It is enough that
reasonable ground exist to believe that the act or omission
complained constitute the offense charge and that the
respondent
is
probably
guilty
thereof.
(Pilapil
vs.
Sandiganbayan, 221 SCRA 349; Allado vs. Diokno, 232 SCRA
193.)
Is preliminary investigation mandatory in all cases.

35

Preliminary investigation is required before filing of a

complaint as information for an offense where the penalty
prescribed by the law is at least four (4) years, two (2) months
and one (1) day without regard to the fine.
Consequently where the complaint involves an offense
penalize by imprisonment of less than 4 years, 2 months and 1
day, conduct of preliminary investigation is not required.
Preliminary investigation is also not required where a
person is lawfully arrested without warrant for an offense which
requires preliminary investigation. In such case the complaint or
information maybe filed by the prosecutor, provided an inquest
is conducted.
If an inquest prosecutor is not available, the complaint
may be filed by the offended party or peace officer directly with
the proper court on the basis of the complaint of the offended
party or arresting officer or person.
What are the objectives of preliminary investigation.
1. To determine if a crime has been committed.
2. To determine if the respondent has probably
committed the crime.
3. To protect the accused from the inconvenience,
expense and burden of defending himself on a formal
trial unless the reasonable probability of his guilt has
first been ascertained in a fairly summary
proceeding.
4. To secure the innocent against hasty, malicious and
oppressive prosecution.
5. To protect the accused from an open and public
accusation of a crime.
6. To protect the state from having to conduct useless
and expensive trial.
What is the nature of respondents right to preliminary
investigation.
The right to a preliminary investigation is not a
constitutional right, but a statutory right. However, being
component part of our criminal justice, it is an element of due
process. It is a substantial right and its denial over the objection
of the respondent would amount to depriving him of full
measure of his right and due process. (Villaflor vs. Vivar, G.R.
No. 134744, January 16, 2001.)

36

Will the absence of the preliminary investigation affect

the validity of the information and jurisdiction of the
court.
Although preliminary investigation is an essential
component of due process, its absence will not impair the
validity of the information or otherwise render it defective.
Neither will it affect the jurisdiction of the court; nor constitute a
ground for quashing the information. (Villaflor vs. Vivar, Supra.)
The trial court instead of dismissing the information
should hold in abeyance the proceedings and order the public
prosecutor to conduct a preliminary investigation. (Villaflor vs.
Vivar, supra; San Agustin vs. People, G.R. No. 158211, August
31, 2004)
When should the right to a preliminary investigation be
invoked otherwise it shall be deemed waived.
1.

2.

After the filing of the complaint or information

without preliminary investigation, the accused,
within 5 days from the time he learns of its filing, ask
for a preliminary investigation with the same right to
adduce evidence in his defense; after the lapse of
said period the right is deemed lost.
The absence of preliminary investigation should be
raised before the accused enters his plea; if made
afterwards the accused is been to have waived his
right thereto.

To summarize, What are the remedies available to the

accused where no preliminary investigation has been
conducted.
1. He must file a motion for preliminary investigation
within 5 days from the time he learns of the filing of
the complaint or information.
2. He must refused to plead upon arraignment and
object to further proceedings upon such ground
3. He should insist on preliminary investigation
4. If refused, he must file the special civil action for
certiorari, or prohibition.
5. He may raised the issue of lack of preliminary
investigation on appeal. (Herrera, p. 246)

37

Who are the officer authorized to conduct preliminary

investigation.
Section 2 of Rule 112 enumerates the officers authorized
to conduct preliminary investigation.
What would be the effect if the preliminary investigation
is conducted by a person who is not authorized to
conduct preliminary investigation.
The proceedings are null and void, and if a complaint or
information is filed in court, the court does not acquire
jurisdiction over the case. (Regalado, p.483.)
NOTES:
The procedure for the conduct of preliminary
investigation is outlined in Sections 3, 4 and 5. These sections
explain themselves the records of the preliminary investigation
supporting the information or complaint- namely: The affidavits
and counter affidavits of the parties and their witnesses,
together with other supporting evidence and the resolution of
prosecutor on the case should be appended to the information
or complaint and transmitted to the court. However, the records
of the preliminary investigation shall not form part of the
records of the case, although the court, on its motion or motion
of any party, be order the record or any part thereof to form
part of the evidence of the requesting party.
Issuance of warrant of arrest (Section 6, Rule 112)
Where the penalty prescribed by law for the offense
charged is four(4) years, two(2) months and one(1) day or
more, the preliminary investigation may be conducted either by
a public prosecutor or a judge of first level court.
If at the conclusion of his preliminary investigation the
investigating public prosecutor resolves that probable cause
exists to hold the accused for trial, the prosecutor shall file the
corresponding complaint or information before the proper
Regional Trial Court or Municipal Trial Court having jurisdiction
and submit to such court his certification about the existence of
probable cause, his resolution, and the affidavit of the
complainant, the counter-affidavit of the accused, if there is
any, the sworn statements of witnesses and other evidence
adduced during the preliminary investigation.

38

The judge of the court where the complaint or

information was filed personally reviews and evaluates the
resolution of the investigating prosecutor, and the affidavit,
counter-affidavit, the sworn statement of the witnesses and the
other evidence submitted by the prosecutor with complaint or
information to determine whether probable cause exists to
justify issuance of warrant of arrest.
Formerly, the judge simply relied on the certification of
the investigating prosecutor regarding the existence of probable
cause. Thus, upon the filing of the complaint or information, the
judge issues a warrant of arrest as a matter of course. However,
starting with the case of Salivan vs. Makasiar (167 SCRA 393),
the Supreme Court altered the procedure. Pursuant to the
mandate of the 1987 Constitute, the Supreme Court ruled that
the judge should personally review and evaluate the resolution
and supporting evidence submitted by the prosecutor with the
complaint or the information, regarding the existence of
probable cause and on the basis thereof, issue a warrant of
arrest. But if from his such review and evaluation he find no
probable cause, he may disregard the prosecutors finding and
require the submission of additional evidence to aid him in
arriving at a conclusion as to the existence of probable cause
for the issuance of warrant of arrest. This doctrine was
reapplied in the later cases of Enrile vs. Salazar,186 SCRA 217;
People vs. Inting, 187 SCRA 788; And Lim vs. Felix, 194 SCRA
292 and several more subsequent cases.
The Supreme Court, nonetheless, stressed that while it is
exclusive impersonal responsibility of the issuing judge to
satisfy himself of the existence of probable cause for the
issuance of a warrant of arrest, he is not required to personally
and actually examine the complainant and his witnesses. It is
sufficient that he makes a personal review and evaluation of the
report and supporting documents submitted by the prosecutor
in determining the probability, not the certainty of guilt of an
accused. (Refer to Herrera, pp.278-279).
Supposed the prosecution refuses or fails to adduce
further evidence to show probable cause to justify the
issuance of warrant of arrest, what is the proper course
for the court to pursue under the circumstances.
The judge then should dismiss the place because of his
finding of non-existence of probable cause.

39

The foregoing discussions applies where the preliminary

investigation as conducted by public prosecutor. But
suppose the preliminary investigation was conducted by
a judge of Municipal Trial Court or Municipal Circuit Trial
Court pursuant to Sec. 2 of Rule 112.
If the first level court judge finds and recommends the
filing of a criminal action against the accused, and his
recommendation is affirmed by the provincial or city prosecutor
or by the Ombudsman, as the case may be, the same procedure
shall be followed as where the complaint or information is filed
in the RTE, except that it is not necessary for the judge to
conduct another preliminary examination for the issuance of
warrant of arrest, because the issue of probable cause has
already been resolved by the same judge in the preliminary
investigation phase.
However without waiting for the conclusion of the
preliminary investigation, the judge may issue a warrant of
arrest if he finds after examination in writing and under oath of
the complainant and his witnesses in the form of searching
questions and answers, that probable cause exists and that
there is necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice. (Sec. 6-b,
Rules 112).

In his personal review and evaluation of the resolution

and evidence gathered by the investigating prosecutor
during the preliminary investigation, is it necessary for a
judge to issue a separate order about his findings of the
existence of probable cause to sustain his directive to
issue warrant of arrest, or he may cause the issuance of
the arrest warrant sub silences of his evaluation and
finding of the evidence adduced before the investigating
prosecutor .
(Herrera, Vol. IV-A, pp. 275-278 nos. 4-5).
Suppose the investigating municipal court judge
without waiting for the conclusion of the preliminary
investigation, finds after examination in writing and
under oath of the complainant and his witnesses in the
form of searching questions and answers, what probable
cause exists and that there is necessity of placing the
respondent under immediate custody in order not to

40

frustrate the ends of justice, but on second thought the

declines to issue a warrant of arrest may he be
compelled by mandamus to issue it.
No, he may not be compelled by mandamus, from the
wordings of Section 6b of Rule 112. it is plain that it is not
obligatory, but merely discretionary upon the investigating
judge to issue a warrant of arrest of the accused, even after
having personally examined the complainant and his witnesses
in the form of searching question and answers, for the
determination of whether probable cause exists and whether it
is necessary to arrest the accused in order bot to frustrate the
ends of justice, is left to his sound judgment or discretion.
(Herrera, page 282)
What conditions must the investigating municipal trial
court judge observe to authorize him to issue a warrant
of arrest during the preliminary investigation.
1. The investigating judge must have examined in writing
and under oath the complainant and his witnesses
searching questions and answers.
2. He must be satisfied that probable cause exist.
3. He must be satisfied that there is a need to place the
respondent under immediate custody in order not to
frustrate the end of justice. (Herrera, page 282)
4.
When a warrant of arrest unnecessary even if a
compliant or information has been file in court for
offences which require preliminary investigation.
1. When the accused is already under detention. What the
court should issue is in order of commitment.
2. When the penalty for the offence charged is only a fine.
A person lawfully arrested without warrant of arrest may
be directly charged in court without undergoing
preliminary investigation, if one is required provided an
inquest has been conducted. What do you understand of
the term INQUEST
INQUEST signifies a summary investigation of person
lawfully arrested without warrant conducted by a public
prosecutor for filing of a complaint or information directly in
court without the need of preliminary investigation, where one
is required, on the basis of the affidavit of the offended party or
of the arresting officer or person.

41

May a person lawfully arrested without warrant ask for

preliminary investigation before a complaint or
information is filed in court.
Yes, provided he signs a waiver of the provisions of
Article 125 of the Revise Penal Code in the presence of the
counsel.
NOTE:
Article 125 of the Revised Penal Code penalizes a public
officer or employee who detains a person on some legal
grounds but fails to deliver the person with the proper judicial
authorities within the period stipulated in said Article.
Suppose the person lawfully arrested without warrant is
charged in court without undergoing preliminary
investigation where one is required, may he still ask for
preliminary investigation.
Yes, provided he ask for the preliminary investigation
within five days from the time he learns of the filing of the
complaint or information against him. By then, he shall have the
same right to adduce evidence in his defense.
Procedure in cases which do not require preliminary
investigation nor covered by the Rule on Summary
Procedure.
In cases which fall under original jurisdiction of the
municipal trial court, which do not require preliminary
investigation because the penalty prescribed by law for the
offence charged is four years, and two months or less, nor
covered by the Rules on Summary Procedure, the complainant
may file his complaint either before the prosecutor r directly
with the court.
If the complaint is filed with a prosecutor, he shall act
thereon within 10 days from its filing. The prosecutor outlined in
Section 3a of Rule 112 should be observed. The complaint must
state the address of the respondent and accompanied by the
affidavits of the complaint and his witnesses, as well as other
supporting evidence to establish probable cause. The affidavit
shall be subscribed and sworn to, before any prosecutor or
government official authorized to administer oath, or in their
absence, or non availability before a notary public. The
administering officer must certify that he personally examined

42

the affiants and that he is satisfied that they voluntarily

executed and understood their affidavits.
The prosecutor shall then evaluate the affidavits and
other evidence adduced by the offended party to determine is
probable cause existing to hold the respondent for trial. If he
finds no probable, he shall dismiss the case; otherwise, he shall
file the complaint with the proper municipal trial court. The
prosecutor, however, cannot issue a warrant of arrest, for only
the court has such authority.
The offended party, however, may file his complaint
directly with the municipal court having jurisdiction. The same
procedure outlined in Section 3a of Rule 112 should be
observed. The judge has these options.
1. If he finds no probable cause after personally
evaluating the evidence, or after personally
examining in writing and under oath the complaint
and his witnesses in the form of searching questions
and answers, he may dismiss the case.
2. He may require the submission of additional
evidence within 10 days from notice, to determine
further the existence of probable cause. But if in
spite of the additional evidence, the judge still finds
no probable cause, he shall within 10 days from
submission or expiration of said period, dismiss the
case. This option, for reconsideration, is the usual
practice.
If the judge finds probable cause, he gives due
course to the case and issues a warrant of arrest, or
commitment order, if the accused had already been
arrested and in custody, and hold him for trial.
3. If the judge is satisfied that there is no necessity for
placing the accused under custody, he may issue
summons instead of a warrant of arrest.
What does the phrase searching questions and
answers imply in matter of issuance of warrant of
arrest?
The phrase is co-extensive with the objective of
determining the existence of probable cause. It does not imply

43

such questions and answers should be as extensive as to

establish the guilt of the accused beyond reasonable doubt.
RULE 113. ARREST and RULE 126. SEARCH AND SEIZURE
Sections 6 and 7 of Rule 112 are closely connected with
Rule 113 on Arrest and Rule 126 on Search and Seizures.
Sections 6 and 7 apply on WHEN may an accused be arrested
with or without warrant of arrest, while Rule 113 and 126
govern HOW arrest, search and seizures may be undertaken
with our without warrant.
The substantive basis of these provisions of the Rules of
Court is Section 2 of Art. 3 of the 1987 Constitution which
provides:
the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall e
inviolable and no search warrant or warrant f arrest shall issue
except upon probable caused to be determined personally by
the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce and particularly
describing the place to be searched, and the person or things to
be seized.
Any evidence procured or obtained in violation of the
constitutional prescription against unreasonable arrest, search
and seizure is inadmissible for any purpose in any proceedings.
(Sec. 3 par. 2 Art. 3, 1987 Constitution). Hence, the validity of
an arrest, search and seizure and the manner of its enforcement
have a direct bearing upon the admissibility of the evidence
prepared thereby.
CONCEPT OF ARREST
Section 1 of Rule 113 defines arrest as the taking of a
person into custody in order that he may be bound to answer
for the commission of an offense. An arrest is made by an
actual restraint of a person to be arrested or by his submission
to the custody of the person making the arrest. (Section 2,
ibid.). In effecting an arrest, no violence or unnecessary force
shall be used and the person arrested shall not be subject to a
greater restraint than is necessary for his detention. (Ibid)
The term signifies the apprehension and detention of the
person of another in order that he may be forthcoming to

44

answer an alleged or supposed crime imputed on him. The

basic concept of arrest is the taking seizing and detaining the
person of another to subject him to the control and will of the
arresting officer.

CONCEPT OF SEARCH WARRANT

A search warrant is an order in writing issued in the
name of the People of the Philippines, signed by a judge and
directed to a peace officer commanding him to search for the
personal property described therein and bring it before the
court. (Sec. 1, Rule 126).
How does a warrant of arrest differ from a search
warrant?
1. In the issuance of a warrant of arrest, it is not
necessary for the judge to examine personally and
actually the complainant and his witnesses; he may
simply review and evaluate the report of the
investigating prosecutor and the evidence he
submitted to him in determining the existence of
probable cause. (See reverse of previous paper.)
In case of search warrant the judge must personally
examine under oath or affirmation the complainant and the
witnesses he may produce in the determination of the existence
of probable cause, by means of searching questions and
answers.
2. The judge cannot issue a warrant of arrest unless an
information has been filed against the person to be
arrested charging him with commission of an offense.
With respect to the issuance of a search warrant, it is not
necessary that a criminal case is pending in court against any
person.
3. The subject of a warrant of arrest is a natural person.
In search warrant, the subject are houses, papers,
things or effects.
4. In arrest cases, it must appear that a crime has been
committed and the
person to be arrested has probably committed it.

45

In the case of search warrant two circumstances must be

reflected by substantial evidence; (1) the items sought to be
searched and seized are connected wit some criminal activity,
although the person committing the criminal activity is
unknown; and (2) that the item will be found in the place to be
searched. (People vs. Vinecario, et al., G.R. No. 141137, January
20, 2004.)
What do you understand about probable cause?
Probable cause is an essential requisite for the issuance
of a warrant of arrest and search warrant, as will as in warrant
less arrest. It has been defined as such facts and circumstances
which could lead a reasonable, discreet and prudent man to
believe, with respect to arrest, that an offense has been
committed and the person to be arrested is probable, the one
who committed; and respect to search and seizure, certain
items are properties are connected with some criminal activity
and would be found in the place sought to be searched.
What is the quantum of evidence necessary to establish
the existence of probable cause?
There is no fixed formula for the determination of
probable cause. Each case must be decided upon the facts and
circumstances obtaining in each case. (People vs. Malmstead,
198 SCA 401.) The term does mean actual and positive cause,
nor does it signify absolute certainty. It is based on reasonable
opinion and suspicion coupled with good faith. (Pilapil vs.
Sandiganbayan, 221 SCRA 349; Allado vs. Diokno 232 SCRA
193).
How is a warrant of arrest executed?
1. The warrant of arrest is delivered to the head of
office which is charged to execute the warrant.
2. The head shall intern assign men under him to
implement the warrant of arrest within 10 days from
its receipt in the office.
3. Within the same period, it shall be the duty of the
office assigned to execute the warrant of arrest,
arrest the arrest the accused and deliver him to the
nearest police station without unnecessary delay.

46

4. Within 10 days after the expiration of the original

period, the officer to whom the warrant of arrest was
assigned for execution shall make a report to the
person of the arrestee. In case of failure to execute
the warrant he shall state the reasons therefore.
(Sections 3 & 4, Rule 113.)
What is the lifetime of a warrant of arrest?
A warrant of arrest does not become stale or functus
oficio, unlike a search warrant which valid only for ten days. A
warrant of arrest remans valid until arrest is effected or the
warrant is lifted. (Manangan vs. CFI, 189 SCRA 217.)

Supposed a person is lawfully arrested, but instead of

going voluntarily and peacefully with arresting officers
the arrestee laid down on the street and refused to
stand up and walk to the police vehicle. So the arresting
officers bodily and physically carried the arrestee and
threw him into their vehicle as a consequence of which
the arrested person sustained bruises and contusions in
his body. The arrestee, assisted by some over zealous
human rights volunteers who saw the acts of the
arresting police officers, denounced them of having used
excessive force and violence in effecting the arrest,
invoking Section 2 of Rule 112, which states inter alia
that no violence or unnecessary force shall be used in
making an arrest, is the charged of the accused,
supported by some human rights volunteers tenable?
Why?
No. What the rules prescribed is the use of necessary or
wanton force and violence in making an arrest. The rules,
however, do not bar the arresting officers to use reasonable and
necessary force to overcome the resistance put up by an
arrestee to frustrate his arrest. The arresting officers are
justified in employing stronger and superior to overcome the
resistance of an arrestee. What is reasonable and unnecessary
depends on attending circumstances. The law has not come up
with an accepted yardstick to measure what is reasonable and
necessary. Moreover, arresting police officers cannot be
expected to deliberate on what is reasonable and necessary as
a man sitting on a civil in air-conditioned office would coolly do,
but have to act with dispatch to maintain and enforce the law.
The act of the arrestee of laying down on the street for the

47

obvious purpose of frustrating the police officers from arresting

him is a form of resistance which the officers have authority to
overcome.
Is a warrant less arrest resulting from entrapment
lawful?
An arrest made after an entrapment does not require a
warrant in as much as it is considered a valid warrant less arrest
pursuant to Rule 113, Section 5(a) of the Rules of court. Any
search resulting from a lawful warrant less arrest is valid
because the accused committed a crime in flagrante delicto,
that is, the person arrested committed a crime in the presence
of the arresting officers. (Yolly Teodosio vs. C.A., G.R. No.
124346, June 8, 2004)
On what time should an arrest b e made?
An arrest may be made on any day and at any time of
the day or night. (Section 6, Rule 112)

How is arrest made (1)if by virtue of a warrant; (2) if

done without warrant; (3) if done by a private person?
1. Arrest by virtue of a warranta. The arresting officer shall inform to person to be
arrested that is under arrest;
b. The officer should advise the arrestee of the cause of
the arrest;
c. He should advise the arrestee that his arrest is by
virtue of a warrant; except that if the arrestee flees or resists
before the arresting officer has the opportunity to so inform
him, or when giving of such information would imperil the
arrest.
However, the arresting officer need not have the warrant
in his possession at the time of the arrest, but if after the arrest
the person arrest so requires, the warrant shall be shown to him
as soon as possible (Section 7, Rule 112).
2. When arrest is warrant less

48

a.
b.
c.

The arresting officer should inform the person to be

arrested of his Authority (that he is a police officer,
NBI or any police officer).
That he placing the person under arrest.
He should inform the arrestee of the cause of his
arrest; unless the arrestee is either engaged in the
commission of an offense, or flee or forcibly resists
before the officer has opportunity to so inform, or
when the giving of such information will imperil the
arrest. (Section 8- Rule 112).

3. When arrest is made by a private person.

a.

The private person making the arrest should inform

the person to be arrested of his intention to arrest
the latter.

b.

He should inform the person to be arrested of the

cause of his arrest; unless the person to be arrested
is either engaged in the commission of an offense, or
he is pursued immediately after its commission, or
escape, flees or forcibly resists before the person
making the arrest has opportunity to so inform him,
or when the giving of such information would imperil
the arrest. (Section 9-Rule 112)

LECTURE
The officer making the arrest, if he cannot effectively
place the person to be arrested, alone and by himself; may
orally summon assistance from as many persons as he deems
necessary, and every person so summoned by the arresting
officer should respond to the summon and assist the officer
effecting the arrest, unless when rendering such assistant would
be detrimental to him. (Section 10- Rule 112.)
Suppose the person to be arrested flees to a building
and barricaded him therein, or he is reasonably believed to be
therein and refused the officer admittance to the building, the
arresting officer, whether with a warrant or without a warrant
may break into such building or enclosure, to affect the arrest.
However, before breaking into the building or enclosure the
office must first announce his and purpose, but he was refused
admittance. (Section 11- Rule 112).

49

It may happen that the arresting officer gained entrance

into a building or enclosure, but was trapped therein and could
not come out, in which case he may also break out from the
building to liberate himself. (Section 12- Rule 112).
Subject to reasonable rules and regulations, the attorney
or relatives of the person arrested have the right to visit the
arrestee and confess with him privately in the place of his
detention. (Section 14-Rule 112).
What is your perception of Custodial investigation, or
when
is
a
person
deemed
under
custodial
investigation?
In People vs. Morial, Et. Al. (G.R. No. 129295, August 15,
2001), the Supreme Court held: A Custodial Investigation
means as any questioning initiated by law enforcement
authorities after a person is taken in custody or otherwise is
deprived of his freedom of action in any significant manner. It
begins where there is no longer a general inquiry into an
unsolved crime but starts to focus on a particular person as
suspect i.d., when the police investigator starts interrogating or
exacting confession from the suspect n connection with an
offense.
SEARCH WARRANT
What is a search warrant?
A search warrant is an order in writing in the name of the
People of the Philippines, signed by a judge and directed to a
peace offices, commanding him to search for personal property
described therein ( located in the place indicated therein) and
bring it before the court. ( S. 1-R,126.)
What is the nature of a search warrant proceeding?
A search warrant proceeding is, in no sense a criminal
action or the commencement of a criminal prosecution although
in nature it is a criminal process, restricted to cases of public
prosecution, and not a process for adjudicating civil rights or
maintaining were privates rights. It is a special and peculiar
remedy, drastic in nature, and made necessary because of
public necessity. United Laboratories Mc. Vs. Isip,461 SCRA
574).

50

Where should an application for search warrant may be

filed?
1. As a rule an application for search warrant,
before a criminal action is filed, should be
filed in any court within whose territorial
jurisdiction a crime was committed.
2. However, for compelling reasons which must
be stated in the application, such application
may be in filed: (1) any court within the
judicial region where the crime was
committed if the place of commission of the
crime is known, or (2) if any court within the
judicial region where the warrant shall be
enforced.
3. In any case, if the criminal action has already
been filed, the application shall only, be made
in the court where the criminal action is
pending.
What is the reason why a search warrant may be
procured in any court outside the territorial jurisdiction
of the court where the subject property of the search
and seizure may be found, provided that no criminal
action relative of such property has yet been filed and
pending in any particular court?
In People vs. Robert Chiu, et al. (G.R. Nos. 142915-16,
feb. 27, 2004), the Supreme Court told us that a search warrant
is merely a judicial process designed by the Rules to respond
and only to an incident in the Min case, if one has already been
instituted, in anticipation of a case to be latter contingency, the
application for a search warrant may be filed in the territorial
jurisdiction other than where the illegal articles sought to be
seized are located. Thus, a court whose territory does not
embrace the place to be searched may issue a search warrant
where the application is necessitated and justified compelling
consideration of urgency, subject, time and place.

What properties may be the subject of search and

seizure warrant?
Only personal properties may be the subject of search
warrant and seizure if:

51

1. They are the subject of the offense;

2. They are stolen or embezzled and other proceeds or frits
of the offense; or
3. They have been used or intended to be used as the
means of committing an offense.(S.3-R.126)
Is ownership of the personal property mentioned in
Section 3 of Rule 126 for the validity of the search?
Ownership of the personal property subject of the search
warrant has no relevance to be validity of its seizure if it fall
under any of the category mentioned in Section 3, Rule 126.
The rule do not require that he property to be seized should be
owned by the person against whom the search warrant is
directed. It is sufficient that he has control the time of the
search and seizure.
How may a search be procured?
1. A sworn application for a search warrant must be filed
specifying and describing the place to be search and the
persons or things to be searched and seized.
2. They judge must conduct a hearing to determine the
existence of probable cause.
3. The judge must himself personally examine the
applicant and the witnesses in the form of searching
questions and writing. Made under oath. This process
cannot delegated to anyone else.
4. The applicant and his witnesses must testify under oath
on facts personally known to them.
5. The application, the sworn statements and affidavits and
their testimonies personally taken by the judge should
gather and filed with the records for the personal
evaluation of the judge.
6. If the judge is satisfied, he shall issue an order stating
the proceeding he has taken and detailing his findings
and directing the issuance of search warrant.
7. A search warrant shall not issue except in connecting
with one specific offense.
8. The search warrant shall not particularly describe the
place to be searched and the things to be seized.
9. The search warrant which has a lifetime and valid only
for 10 days from its date (S.10 Rule 126), may enforced
anywhere in the Philippines. After said period has lapsed
it becomes functus oficio.

52

The rules require that a search warrant must issue only

upon probable cause. What is the quantum of evidence
necessary to establish the existence of probable cause?
There is no fixed formula for determination of probable
cause. Each case must be decided upon its facts and
circumstances (People v. Malmsted, 198 SCRA 401).
The term does not denote actual and positive cause
nor does it connote absolute certainty. Like in arrest warrant,
probable cause in search warrant refers to such facts and
circumstances which may lead a reasonable, discreet and
prudent man to believe that an offense has been committed
and that the objects sought in such offense are in the place
sought be searched. ( Chintero v. NBI, 162 SCRA 467; People
v. Malmsted, supra).
The search warrant shall issue only in connection with
one specific offense. Why?
The purpose of the requirement that a search warrant be
issued for only one specific offense is to aid the judge to
determine the existence of probable cause as well as to
determine what personal property may properly be seized.
Section 3 of Rule 126 enumerates the personal properties
which may be seized. (Regalado, Remedial Law
Compendium, Vol. 2 2004 Ed. Pp. 644 & 645. Notes Nos. 6 &
9).
However, the failure
specific offense does not
specific offense if the
considered as included
offense.

of search warrant to mention the

necessarily violate the rule on one
offense not so specified may be
or necessarily included the said

The judge must before issuing the search warrant,

examine the complaint and the witness he may produce.
Unlike in the issuance of an arrest warrant, the judge
merely reviews and evaluates the testimonies of the
complainant and his witnesses without the need of re-taking
them on and the basis thereof determine the existence of
probable cause, in search warrant the judge cannot simply
rely on the sworn statements of the applicants and his
witnesses under oath and their testimonies reduced in
writing by means or in the form of recording questions and

53

answers and on the basis thereof determine the existence of

probable cause or non-existence of probable cause.
Suppose the judge delegated the examination of the
applicant and his witnesses to his branch clerk of court after
which he read the tsn in the presence of the applicant and
the witnesses. The judge inquired about the correctness of
what was read to them. The witnesses confirmed the
accuracy of the transcript of their deposition. Thereafter the
judge issued the search warrant. Is the search warrant
issued by the judge valid? (Herrera pp. 897-892).
The personal examination of the judge issuing the search
warrant must be in the form of searching questions and
answers. What does the phrase searching questions and
answers denote?
The searching questions propound to the applicant of the
search warrant and his witnesses must depend to the large
extent upon the discretion of the judge as long as the
answer establish reasonable ground to believe the
commission of a specific offense and said answer
particularly describe with certainty the placed to be
searched and the person or things to be seized. But the
examination must be probing and exhaustive, not merely
routinary and Performa, if the claimed probable cause is to
be established. The examining judge must not simply rehash
the contents of the affidavits but must take his own inquiry
on the intent and justification of the application. (Mata v.
Bayona, 128 SCRA 388; Roan v. Gonzales, 145 SCRA 686).
The applicant his witness must depose on
personally known to them. What does this signify?

facts

The probable cause must not be shown to be within he

personal knowledge of the applicant or witnesses he may
produce, that is, they came to know such fact by the direct use
of their senses and not based on mere hearsay.
The test in determining whether the allegations in the
application for search warrant or in the depositions in support
thereof is focused on whether they have been drawn in a
manner that perjury could be a charge thereon and the
affidavits/ deponents be held liable for damages caused.

54

What is the purpose of the requirement that the warrant

issued must particularly describe the place to be
searched and the persons or things to be seized?
1. As to description of the place and premises to be
searched.
a. To preserve the quiet enjoyment of the individual in the
home or place of business. The function of a police
officer in executing a search warrant is purely
administrative and he is not permitted to exercise his
discretion or exceed the limits of his official authority.
b. To eliminate the possibility of the executing officer to
guess or exercise his discretion in making a selection as
to what place or premises may be entered and search.
c. To limit the things to be seized to those and only those
particularly described in the search warrant.
d. To leave the officer of the law with no discretion
regarding what articles shall seize to the end that
unreasonable searches and seizures may not be made
that abases may not be committed.
2. As to the description of persons or things to be
seized.
a. To prevent arrest and seizures of persons and articles
under a warrant which describes another or where the
warrant contemplates another.
b. To deny the officer from doing roving commissions of
arresting and seizures what they please. They are bound
to adhere strictly with the command of the warrant and
may not exercise any discretion.
c. However, it is not a fatal defect if the person to be
searched and seized particularly named in the warrant
where it contains a descriptio personas sufficient to
enable the officer to identify the subject person.
What is the test utilize in the determination whether the
description of the place to be searched is sufficient?
1. Whether the description is as specific as the
circumstances will ordinarily allow.
2. Whether the description expresses a conclusion of fact
not of law by which the warrant officer may be guided in
making the search and seizure.

55

3. Whether the things described are limited to those which

bear relation to the offense for which the warrant is
being issued. (Herrera p. 901).
The test is, if the police officer can with reasonable effort
identity the place mentioned in the search warrant, then the
description is sufficient but if the officers in executing the
search warrants so can conceivably be confused by the
description so that another house or place could be entered
by him and its occupants disturbed, then obviously, the
description in the search warrant of the place to be
searched is insufficient. (Varon, Volume 1 page 451)
Nearest police station or jail without delay, in case of
search warranty to search the place described in the
warrant and seized the things covered by the warrant and
bring them to the court. (Section 3, Rule 113 and Section 12,
rule 126)
How is arrest by virtue of a warrant carried out.
A. The arrest may be made on any day and at any time of the
day or night. (SECTION 6, rule 113)
B. As prescribed by Section 7, Rule 113:
1. The arresting officer shall inform the person to be arrested of
the cause of his arrest.
2. The arresting officer shall inform the person to be arrested
that a warrant of arrest has been issued for his arrest.
N.B:
1. But if the arrestee flees or forcibly resist before the
officers has the opportunity to inform him or when giving
of such information will imperil the arrest, the procedure
maybe dispensed with.
2. The officer need not have the warrant in his possession
at the time of the arrest but after the arrest and the
person arrested so requires the warrant should be shown
to him as soon as practicable.
C. As prescribed by the upgrade guidelines issued by the
Supreme Court, including during custodial investigation. See
Herrera pages 357-359
Suppose the person to arrested flees or violently
resisted, how should the arresting officer proceed to
effect the arrest.

56

1. The officer making lawful arrest may oral

summon as many persons as he deems
necessary to assist him in effecting the
arrest, and every person so summoned
by the arresting officer must render such
assistance without detriment to himself.
(Section 10, Rule 113)
2. The officer making a lawful arrest may break into any
building or enclosure where the person to be arrested is or is
reasonably, believed to be, if he is refused admittance thereto,
after announcing his authority and purpose. (Section 11, Ibid.)
3. If the arresting officer is trapped inside the building or
enclosure, he may break out there from, as may be necessary,
to deliberate herself.
May a private person making a lawful arrest break into a
building, or enclosure to effect the arrest.
No, Sections 11 and 12 permit only an officer to break
into a building or enclosure to effect an arrest. Hence such right
is not extended to the private person even if his purpose is to
make a lawful arrest. (Regalado, page 399)
How is a search warrant enforced
1. The officer executing a search warrant must do so within 10
days from its date, because a search warrant shall be valid only
for tend days from its date, thereafter the same shall be void.
2. The warrant may be served in he day/time, unless the
affidavit asserts that the property is on the person or in the
place to be searched in which case a direction may inserted
that if be served at any time of the day or night. (Section 9,
Ibid.)
3. Where the searched is to be made during the nigt time, the
authority for executing the same at such time should be appear
in the direction on the face of the warrant. (Regalado, p. 918)
4. The officer enforcing the search warrant must give notice of
his puspose and authority to the owner or person in charged of
the place to be searched. (Section 7, Rule 125: implied)

57

5. In conducting the search, the officer must avoid unnecessary

damage to the premises, and must stay therein only so long as
if may be reasonably necessary.
6. The search of every house, room, or other premises must be
conducted in the presence of lawful occupant pr any member of
his family, if available, otherwise in the presence of two
witnesses of sufficient age and discretion residing in the same
locality. (Section 8, Ibid.)
N.B: Witnesses preferably are baranggay officials
7. The officer seizing property under the warrant must give a
detailed inventory and receipt of the property seized to the
lawful occupant of the premises if present, o to the witnesses
present during the search and seizure. (Section 11, Ibid.)
8. The officer must forthwith the property seized, to the judge
who issued the warrant together with a true inventory thereof
duly verified under oath. (Section 12a, Ibid.)
Suppose the officer designated to conduct the search
under the warrant is refused admittance into the
premises to be search, what is the remedy of the
officers.
The officer may break, open any outer or inner door, as
window of a house or any part of the house or anything therein
to execute the warrant or liberate himself as any person
lawfully aiding him when unlawfully detained therein. (Section
7, Ibid.)
As a rule, no person may be arrested but upon a valid
warrant of arrest issued by a judge. However, in well
defined and specific instances an arrest may be lawfully
executed even without a warrant. A police officer, or eve
a private person may without a warrant arrest a erson.
What are these instances where a warrantless arrest of
a person may be made.
1. Arrest in flagrante delicto. When in the presence of the
arresting officer or private individual, the person to be arrested
has committed, is actually committing, or is attempting to
commit an offence.
2. Arrest in hot pursuit. When an offence has just been
committed and the arresting officer or private individual, has

58

probable cause to believe that the person to be arrested has

committed it.
3. When the person to be arrested is prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement t
another.
What does probable cause to believe that the person to
be arrested committed the offense connote?
While probable cause is a relative term the
determination of which must be revolved according to the facts
of each case, it is understood as having reference to facts and
circumstances which could lead a reasonable, discreet and
product man to believe and conclude as to the commission of
an offense.
What
does
personal
circumstances denote?

knowledge

of

facts

or

It means an actual belief or reasonable ground of

suspicion based on actual facts, coupled with good faith on the
part of the officer making the arrest.
To justify a warrant less arrest, it is not enough that a
crime has actually just been committed the arresting officer
must be personally aware of actual facts leading to a
reasonable ground of belief or suspicion that a crime has been
committed.
CASE: 1. People vs. Mengote, 210 SCRA 174.
L.f Terry vs. Ohis, 392 U.S.I, cited and applied in Manalili
vs. CA 280 SCRA 400.

As a rule search and seizure must have to be based on a

search warrant, however there are instances where
search and seizure may be conducted without warrant.
What are these instances?
1. A person lawful arrested may be searched for dangerous
weapons or anything which may have used or constitute
proof in the commission of an offense without a search
warrant. ( Sec. 13, Rule 126)
2. Consented search of the person to be searched, even
when the consent was given by a woman who

59

3.
4.
5.
6.

misrepresented herself as the wife of the man who

premises would be searched, provided the searching
parties believed in good faith in the representation.
Search and seizure pursuant to the Tariff and custom
Code, provided the premises to be searched is not a
dwelling house
Search and seizure of vessels and aircraft because the
vessel or aircraft can quickly move out of the jurisdiction
before a search warrant may be procured.
Moving motor vehicle can easily move-out, escape and
dispose of illegal article it was transporting, proved it id
not practical to secure a warrant.
Seizure of evidence in plan view provided the following
requisite concur.
a. The article is expose and open for the eyes to see
and the hands to hold.
b. The searching officers are lawfully in the place
where they are.
c. The searching officers came upon the prohibited
article without conducting a search for them and
inadvertently.

7. The search was based on probable cause under

extraordinary circumstances
8. Searches under the stop and frisk doctrine for the
plain view doctrine to apply requisite must concur.
The plain view doctrine applies when the following
requisites concur:
1. The police officer has a prior justification for an
intrusion,, Example: He is armed with solid search
warrant, or he is lawfully engaged in executing a valid or
legal warrant less arrest.
2. The police officer inadvertently discovered as illegal
article which is not covered by the search warrant or for
which he was purposely searching.
3. The illegality of the article is immediately apparent to
the eyes of the police officer without search doing any
positive act of search, for example: upon justified entry
of the premises the police on the table in the receiving a
control and expose to the eyes. ( Herrera, Text, pp.958966 and the cases cited therein.(People vs. Chua Ming
Kho G.R. No. 133265, may 29,2002, People vs. Macalaba,
G.R. Nos. 146284-86, Jan. 20, 2003.)
What are the requisites for a valid search warrant?

60

1. It must be issued upon probable cause

2. The existence of probable cause must be personally
determined by the issuing judge.
3. The issuing judge must have personally examined by
means of searching questions and answers the applicant
and his witness and taken down their written
depositions.
4. The search warrant must particularly describe or identify
the property, to be seized as far as the circumstances
will ordinarily allow.
5. Honest particularly describe the place to be searched.
6. It shall issue for only one specific offense
7. It must not have been issued more than 10 days prior to
the search made pursuant there to. Regalado, Remedial
law Compendium, Vol. II, 10th Rev. Ed., p. 643.)
What is the accepted meaning of probable cause for
issuance of a valid search warrant.
Probable cause for a search is defined as such facts and
circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed
and that the objects sought in connection with the offense are
in the place sought be search.
The probable cause must be shown to be within the
personal knowledge of the applicant or the witnesses he may
produce, and not based on more hear say.
What does the requirement the probable cause must be
personally determined by the issuing judge signify.
The requirement signifies that issuing judge must
himself actually examine by means of searching questions and
answers, and take the written depositions of the applicant and
the witnesses he may produce.
Such personal responsibility cannot be delegated. More
affidavits of the applicant and his witnesses are not sufficient.
What is the underlying reason of the requirement that
the search warrant must particularly describe or identify
the property to be seized?
This requirement is intended to limit the articles to be
seized to those, and only those, that are particularly described
or identified in the search warrant, thereby leaving the
searching officer without discretion to seize any article not
covered and commended by the search warrant.

61

The requirement proscribes general warrant which gives

the searching official the unbridled discretion to choose targets
of their searches and the arbitrary invasion of homes and
offices.
What are the accepted tests to determine whether a
search warrant may be said to have described the things
to be searched and seized?
1. Whether the description therein is as specific as the
circumstances will ordinarily allow.
2. Whether the description expresses only a conclusion of
fact-not of law, by which the warrant arrest officer may
be guided in making the search and seizure.
3. Whether the things described are limited to those which
been direct relation to the offense for which the warrant
is being issued (Sec.2, Rule 126)
Section 4 of Rule 126 further requires that the search
warrant must also particularly describe the place to be
searched, What are the reasons of this requirement.
The reasons for this requirement are:
1.To eliminate the possibility of the executing officer to
guess or exercise discretion in making a selection as to what
place or premises may be entered and searched;
2. To prevent arbitrary and indiscrimate use of the
search warrant;
3. to preserve the peaceful enjoyment of the individual
in his home or place of business.
What is the objective of the requirement that he search
warrant must issue for only one specific offense.
This requirement is prescribe to enable the judge issuing
the warrant to determine the existence a probable cause, and
will determine what personal property may be properly seized.
( Regalado, pp. 644-45.)
What test may be applied to determine whether the
description of the place to be searched is sufficient?
If the officer can with reasonable effort identity the
mentioned in the search warrant then the description of the
property is sufficient. However, if the offices executing the

62

search warrant can conceivably get confused by the

description, so that another house or place could be entered by
him, and its occupants disturbed, then the description in the
search warrant of the placed to be searched is obviously flowed
and insufficient.
RULE 114 BAIL
The Bill of Rights under the 1987 Constitution mandated
that all persons except those charged with offences punishable
by reclusion perpetua or life imprisonment whom the evidence
of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even
when the privilege of the writ of hobeas corpus is suspended.
Excessive bail shall not be required. ( Art. III, Sec.13 )
To Secure and enforce this constitutional right accused
Rule 114 of provides how this may be implemented in 26
sections.
In legal contemplation, what is the meaning of bail?
Bail is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required under
the conditions specified in the bail bond. (Sec. 1.)
As a general principle, an accused person is
constitutionally guaranteed of his right to bail before
conviction.
What is the reason behind such
constitutionally guaranteed right?
The basic reason for such constitutionally guaranteed
right flows from the presumed innocence of every accuse
person before conviction.
What is the legal effect of releasing an accused on bail?
The custody of the accused and the responsibility of his
appearance in court, in legal contemplation, is transferred to his
surety. In other words, his surety becomes in law the jailer of
the accused.

63

An accused who is still at large desires to post a bail in

order to avoid
arrest and the inconvenience of being
placed behind bars. May he be allowed to do so.
No, because the right to be release on bail presupposes that
the accused has been arrested and is in the custody of the law.
In other words, the accused must be in actual custody of the
law to be entitle to bail.
Is it always indispensable that an accused be in custody
of the law before he is allowed to post bail?
No, an accused who has not been arrested may be
allowed to post bail under the following conditions:
1. The accused is physically incapacitated to appear
personally in court to post bail, like for instance
he is confined in the hospital or account of a
serious ailment which physically immobilize him.
2. He manifested in his motion to be admitted to
bail that he was submitting his person to the
custody of the court.
How legal custody of the accused may be acquired.
1. When he has been arrest, whether warrant less or by
virtue of a warrant.
2. When he voluntarily submitted himself to the jurisdiction
of court by surrendering to the proper authorities.
Suppose the accused has been irregularly arrested with
out warrant or by virtue of an invalid warrant of arrest.
Subsequently, upon his motion and after hearing, the
court refused him on bail. May the accused still take
issue of the procedural defect or irregularity of his
arrest?
Yes, because under Section 26 of Rule 114, an
application for admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the
warrant issued therefore. N.B Before plea.
What are the types of bail which an accused may post?
1. Corporate surety Bail bond posted jointly by the
accused and an officer of the corporation authorized by

64

its board of directors to act for and behalf of the

corporation.
2. Property bond it is an undertaking constituted as a
lien of real property conform to by its owner as security
for the amount of the bail.
3. Cash bail
4.Recognizance An undertaking by the accused or by a
responsible member of society that the accused will
make himself available to the court and will always
appear before it whenever the court which released him
from custody so requires his personal appearances.

Section 2 of Rule 114 enumerates the conditions of the

bail, one of which is the life time of a bail. Till from what
time to what time is a bail effective.
The undertaking shall be effective upon approval and
unless cancelled earless, shall remain in force at all stages of
the case until promulgation of the judgment of the RTC,
irrespective of whether the case was originally filed in or
appealed to it ,and irrespective of payment or no-payment of
subsequent premiums.
What is the effect if the accused who is on bail was
notified and requires to appear at the trial but failed to
do so.
1. The court may order the trial to proceed even the
absence of the accused, trial in absentia
2. The court may order the bail cancelled and to failed, and
order the bondsman to show cause why judgment should
not be rendered against it for the amount of its bond
and also orders the bondsman to produce the body of its
principal, within 30 days from notice.
When may a person under legal detention be release
from detention or transferred?
1. When ordered by the court which has jurisdiction over
his person;
2. When he is admitted to bail and posted the bond in the
required or fixed amount.
What are the factors which the court must consider in
fixing the amount of the bail?

65

1.
2.
3.
4.
5.
6.
7.
8.

The financial ability of the accused;

Nature and circumstances of the offense;
The penalty for the offense changed;
The character and reputation of the accused;
The age and health of the accused;
The weight of the evidence against him;
The probability of the accused appearing in the trial;
The fact that the accused was fugitive from justice when
arrested;
9. The pendency of other cases in which the accused is
under bond. (Victory Liner, Inc. vs. Judge Bellosillo, A.M.
No. MTJ-00-1321, Mar.10, 2004.)

What duties should a judge perform when an application

per bail is filed before him?
1. Set the application for hearing, under the present rules,
a hearing on the application for bail is mandatory
whether bail is a matter of right or of discretion, the
prosecutor should be given reasonable notice of hearing,
or be sought ( Co vs. Plata, 453 SCRA 326; Mabutas vs.
Perillo, 459 SCRA 368.)
2. Notify the prosecutor of the hearing on the application
for bail or require him to submit his recommendation;
3. Conduct a hearing on the application for bail whether or
not the prosecutor presents evidence to show that the
guilt of the accused is strong, if the offense charge is
non- bailable, to enable the court to exercise its
discretion;
4. In case the offense is non- bailable, decide whether the
evidence of guilt of the accused is strong based on the
summary of evidence of the prosecution;
5. If the guilt of the accused is not strong, discharge the
accused upon approval of the bail bond; and
6. If the offense charged is bailable, fix the amount of the
bail based on the factors and guidelines in fixing the
bails amount. (Ocenar vs. Mabutin, 452 SCRA 377).
Why is hearing on the application for bail necessary?
A hearing is of utmost necessity because certain factors
in fixing the bail, (like the nature of the crime, the character and
reputation of the accused, the probability of his appearing at

66

the trial, among others) call for presentation of evidence. It is

impossible for the judge acting on the application for bail to
consider this factors in an ex-parte determination of the
propriety of the accused s motion for bail. The fact that the
prosecution interposed no objection to the application of the
accused for bail does not relieve the judge of his duty to set the
motion for bail for hearing. (Managuelod vs. Judge Pacliban, Jr.
Etc. A.M. No. RTJ-02-1726, March 29, 2004).
It is necessary for a judge, acting on an application for
bail to write his order thereon? Why?
There are two reasons why a judge should write down his
order either denying or granting the accuseds application for
bail. First, the summary of the evidence in the order is an
extension of the hearing proper, thus, as part of procedural due
process wherein the evidence presented during the prior
hearing is formally recognized as having been presented and
most important considered. The failure to include every piece of
evidence in the summary presented by the prosecution in their
favor during the prior hearing would be tantamount to not
giving them the opportunity to be heard in the said hearing, for
the inference would be that they were not considered at all in
weighing the evidence presented by the parties. Such would be
a denial of due process for due process means not only giving
every contending party the opportunity to be heard but also
for the court to consider every piece of evidence
presented in their favor.
Second, the summary of the evidence in the order is the
basis for the judges exercising his judicial discretion. Only after
weighing the pieces of evidence as contained in the summary
will the judge formulate his conclusion as to whether the
evidence of guilt against the accused is strong based on his
discretion. (People vs. RTC Judge of Muntinlupa City, et al., June
8, 2004; Santos vs. Ofilada, 315 Phil. 11, 20).
Third, the contending parties have the right to be
informed of the grounds whereof the application for bail is
granted or denied.
When is bail a matter of right?
1. Before of after conviction by the first level courts.
2. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.

67

3. A person who has been arrested, detained or

restrained, but has not been charged retains this
right, until he is charged with a capital offense and
the evidence of his guilt is strong.
When is granting of bail a matter of discretion on the
part of the RTC?
Upon conviction by the RTC of an offense not punishable
by death, reclusion perpetua or life imprisonment, admission to
bail is discretionary.
The bail filed before the RTC lapses after promulgation of
judgment.
However, the RTC which convicted the accused may act
on the application of the accused to remain at liberty under the
same bail, subject to the consent of the bonds.
In case of appeals where should the application for bail
may be filed.
As a rule the application for bail may be filed and acted
upon by the court which try the case even if a notice of appeal
has been filed, provided the original record has not been
transmitted to the appellate court.
However, if the decisions of the trial court change the
nature of the offense from non-bailable to bailable, the
application can only be filed and resolved by the appellate
court.
Why the court allowed the accused to be released on
bail without hearing if bail is a matter of right?
No. The judge must always give reasonable notice of
hearing to the prosecutor or require him to submit his
recommendation, and set a date for hearing of the application
for bail.
A hearing is mandatory in granting bail whether it is a
matter of right or discretion. (Commissioner Domingo vs.
Executive Judge Pagayatan, A.M. No. RTJ 03-1751, June 10,
2003).
In SPO1 Caeda, et al. vs. Hon. Alaan A.M. No. RTJ-011376, January 23, 2002, where the suspects were charged of

68

violation of the Omnibus Election Code, a bailable offense, the

Supreme Court held that in this jurisdiction before the judge
may grant application for bail, whether bail is a matter of right
or discretion, the prosecutor must be gain reasonable notice of
hearing or he must be asked to submit his recommendation.
Thus, in all cases whether bail is a bail a matter of right
or discretion, the judge must set the application for hearing
notify the prosecutor of such hearing or require him to submit
his recommendation. (Gelacio vs. Judge Flores, A.M. No. RTJ-991488, June 20, 2000. see also Herrera, pp. 384-385.)
When may the RTC deny the application for bail of
the accused even if his crime is not a capital offense or
the penalty imposed is not reclusion perpetua or life
imprisonment?
If the penalty imposed by the trial court is imprisonment
exceeding 6 years, the accused shall be denied bail, or his bail
shall be cancelled upon showing by the prosecution, with notice
to the accused, of the following or other similar circumstances:
1. That the convicted accused is a recidivist, quasirecidivist or habitual delinquent, or has committed
the crime aggravated by the circumstance of
restoration;
2. That he has previously escape from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
3. That he committed the offense while under
probation, parole or conditional pardon;
4. That the circumstances of his case indicate the
probability of flight if release on bail; or
5. That there is undue risk that may commit another
crime during the pendency of the appeal.
Is the order of the RTC denying the application of the
after conviction and during the pendency of the appeal
final?
No. The appellate court may, motu propio or on motion
of any party, review the resolution of the RTC after notice to the
adverse party, and approve modify as reverse the lower courts
order.
When is an accused not entitled to bail?

69

Under Section 7 of Rule 114, no person charged with a

capital offense, or an offense punishable by reclusion perpetua
or life imprisonment shall be admitted to bail when the
evidence of guilt is strong, regardless of the stage of the
criminal prosecution.
What is the legal definition of capital offense?
A capital offense is an offense which under the law
existing at the time of its commission and of the application for
admission to bail, may be punished with death. (Sec. 6, Rule
114)
An accused was charged with rape with homicide which
is a capital offense, may he apply for bail?
Yes. Being charged with a capital offense is not a bar to
an application for bail. Application for bail should not be
confused with admission to bail. To be barred from bail it must
be shown that the evidence of guilt of the person charged with
the capital offense is strong.
Who has the burden of proof that the evidence of guilt is
strong?
At the hearing of an application for bail filed by a person
who is in custody for the commission of an offense punishable
by death, reclusion perpetua, or life imprisonment, the
prosecution has the burden of showing that the evidence of
guilt is strong. (Sec. 8, Rule 114)
What the nature of the hearing in bail application where
the offense is a capital offense or punishable with
reclusion perpetua or life imprisonment?
The hearing of an application for bail is summary in
nature, meaning, a brief and speedy method of receiving and
considering how strong the evidence of guilt of the accused, is
for the purposes of bail. In such summary hearing the court is
not concerned about the quantum of evidence necessary to
pronounce guilt beyond reasonable doubt. Precisely, there is
still need for trial on the merits to receive the evidence of the
people to prove the guilt of the accused with moral certitude.
However, the evidence presented during the bail hearing
is automatically reproduced at the trial with right of either party
to recall any witness for additional examination unless such

70

witness is already dead, outside the Philippines, or otherwise

unable to testify.
Suppose the prosecution refuses to adduce evidence or
interposes no objection to the application for bail in nonbailable offense, is it mandatory for the court to still
conduct hearing.
The trend of jurisprudence requires the court to proceed
with the hearing despite the absence of evidence of the people.
It is still mandatory for the court to conduct hearing and ask
searching and clarificatory questions. For even the failure of the
prosecution to interpose an objection to the grant of bail to the
accused will not justify such grant without hearing.
COMMENT
I seriously doubt the soundness and justice in such trend
of our jurisprudence. Strong evidence of guilt is not
synonymous with evidence of guilt beyond reasonable doubt.
The first is determined in a summary hearing; the second is
determined after a full blown trial on the merits.
If the prosecution could not adduced strong evidence of
guilt during the bail hearing, could we expect it to present
evidence demonstrating the guilt of the accused beyond
reasonable doubt.
By allowing the judge to ask searching question during
the bail hearing, where the prosecution remains mute, do we
not make the judge assume the burden of proving what the
prosecution fails to prove or could not prove.
When may we consider the evidence of guilt of the
accused is strong to warrant denial of his application for
bail in non-bailable offenses.
Like the matter of probable cause, there is also fixed and
clear out rule for determination how strong should strong
evidence of guilt to support denial of a petition bail. To my
mind each case must be resolved upon its own facts and
circumstances. But it is certain that a finding of strong
evidence does not require an inquiry into whether there is
sufficient evidence is that it procure conviction. My submission
is that it is enough if from the application of the judge the
evidence can engender judicial belief that the accused could be
guilty of the offense charged.

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What is the form of the order granting or denying bail in

capital offenses penalized with reclusion perpetua or life
imprisonment?
The order resolving the petition should be in writing
containing the following:
1. Statement of the matter;
2. A summary of the evidence adduced by the party;
3. A statement of the evidence sustained by the court;
4. The reasons of the court;
5. The decrial portion
Summary of the proceedings on application for bail
where the offense charged is a capital offense or
penalized with reclusion perpetua or life imprisonment.
1. Notify the prosecution of the hearing of the application
for bail or requirement to submit his recommendation.
( Sec. 18, Rule 114)
2. Conduct a hearing of the application for bail regardless
of whether or not the prosecution to present evidence to
show that he guilt of the accused is strong for the
purpose of enabling the court to exercise its sound
discretion. (Section 7&8, ibid.)
3. Decide whether the evidence of guilt of the accused is
strong or not based on the summary of the evidence of
the prosecution.
4. If the guilt of the accused is strong, deny the petition;
otherwise, discharge the accused upon approval of the
bail band. ( Herrera, p.403).
Summary of the rules where application for bail is filed
in bailable offenses.
1. Before and after conviction by the first level courts, bail
is matter of right. (Sec. 4, Rule 114)
2. Before conviction by the RTC, whether in the exercise of
its original or appellate jurisdiction, bail is a matter of
right.( Ibid.)
3. After conviction by the RTC imposing a penalty of
imprisonment which does not exceed 6 years, bail is a
matter of discretion. (Sec. 5,Ibid)
4. After conviction by the RTC wherein a penalty exceeding
6 years but not more than 20 years is imposed and any
of the circumstances stated in Sec.5 or any other similar

72

circumstance is present and proved, no bail shall be

granted. (Sec. 5, Ibid)
5. After judgment has become final or the accused has
commenced to serve his sentence no shall be allowed.
(Sec. 24, Ibid.)
6. If before judgment has become final, the accused has
duly applied for probation as of allowed the same bail
bond with the consent of the surety or under a new bail
bond, or released under recognizance.(Regalado, pp.
416-417).
Where should application for bail be filed?
1. As a rule bail in the amount fixed may be filed with the
court where the case is pending.
2. In the absence or unavailability of the judge thereof, with
any regional trial judge or MTC. Judge in the province or
city or municipality.
3. If the accused is arrested in a province, city, or
municipality other than where the case is pending, bail
may be filed in any RTC of said place, or if no judge
thereof is available, with any MTC judge therein.
4. If a person who is in custody has not yet been charge in
court, he may apply for bail with any court in the
province, city or municipality where he is hold.
5. During the pendency of appeal that is after a notice of
appeal has been filed but before the records are
elevated to the appellate court, application for bail may
be acted upon by the RTC which rendered judgment of
conviction.
6. If the decision of the RTC convicting the accused
changed the nature of the offense from non-bailable to
bailable the application for bail should be filed with and
resolved by the appellate court.
7. When the grant of bail is a matter of discretion or the
accused seeks to be filed in the court where the case is
pending whether on preliminary investigation, trial or
appeal.
Suppose the application for bail is denied by the RTC
what is the remedy of the person in custody?
His remedy to initiate a special civil action in the Court of
Appeals, not in the Supreme Court, within sixty days from the
date of denial.

73

Suppose the bail is filed with and admitted by the court

other than the one whose the case is pending, what
should the judge who accepted the bail do with the bail
bond?
The accepting judge should forward the bail bond to the
court where the case is pending together with the order of
release and other supporting papers. The latter court and may,
for good reason, require another or different bail to be filed.

Increase or reduction of bail

Forfeiture of bail
RULE 115- RIGHTS OF ACCUSED
a. The right to be presumed innocent until the contrary
is proved beyond reasonable doubt.
An accusation is not synonymous with guilt. Whoever
imputes on another any criminal transgression of has the
burden of proving his accusation beyond reasonable doubt. The
accused need not prove his innocence, for that is
constitutionally and procedurally presumed. The presumption is
overcome only by contrary proof beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such
degree of proof as, excluding possibility of error, or as producing
absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced
mind.
Moral certainty signifies such proof as will satisfy the
judgment and conscience of trial judges, as men of reason, that
the defendant is guilty of the crime charged. More conjecture or
suspicion of guilt is not sufficient to warrant a conviction.
b. The right to be informed of the nature and cause of
the accusation against him.
Arraignment is the formal process and manner of
implementing the constitutional and procedural right of an
accused to be informed of the nature and cause of the
accusation against him.

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During arraignment made in open court, the judge or

clerk reads to the accused the complaint or information in the
language or dialect known to him, and asks whether the pleads
guilty or not guilty.
c. The right to be presented defended in person and by
counsel at every stage of the proceeding.
The presence of the accused at his arraignment and at
the promulgation of the judgment is mandatory and cannot be
dispensed or waived. However, at the other stages of the
proceedings, in between, the presence of the accused may be
waived and dispense with provided he has been duly notified
thereof and he is out on bail. But if he is under preventive
imprisonment the presence of the accused cannot be dispensed
with.
If he is a detention prison and he escape the presence of
the accused is not necessary except at the stage of
arraignment. When he is re-arrested his right to be presented
cannot be waived.
The accused may be allowed to defend himself in person
provided the court is satisfied that he has the capacity to
properly protest his right without the assistance of counsel.
d. The right to testify in his own behalf, but cannot be
compiled to be a witness against himself.
However, where the accused testifies in his behalf he is
subject to cross-examination on the matters covered by his
direct examination.
e. The right to confront and cross-examine the witnesses
against him at the trial, or to utilize the testimony of a
witness at a former trial
As part of his evidence if such witness is already
deceased, out of the country or whose where about are
unknown despite the effort to locate him, provided the other
party had the opportunity to cross-examine him. This is similar
to Section 47 of Rule 130.
f. The right to have compulsory process issued to secure
the attendance of witnesses and production of other
evidence in his behalf.
g. The right to have speedy, impartial and public trial.

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h. To appeal in all cases allowed and in the manner

prescribed by law.
RULE 116 ARRAIGNMENT and plea
What is the concept of arraignment?
In all criminal prosecutions, the accused has the
constitutional right to be informed by the nature and cause of
the accusation against him. (Art III, Sec. 14-2, 1987
Constitution.)
The process of informing the accused of the nature and
cause of the accusation against him is known as arraignment.
It is made in open court by the judge or clerk, and consists of
furnishing the accused with a copy of the complaint or
information, reading the same to the accused in a language or
dialect known to him, and asking him whether he pleads guilty
or not guilty.

Where should the arraignment made?

Arraignment should be made in open court before the
court which will hear the case.
When should the arraignment be made?
The arraignment and the pre-trial of the accused
pleaded not guilty to the crime charged should be held within
30 days from the date the court acquires jurisdiction over the
person of the accused. But the period of the pendency of a
motion for a bill of particulars, or other causes justifying
suspension of arraignment should be excluded.
What is the
arraignment?

procedural

nature

of

the

required

Arraignment is a mandatory requirement absence of

which prevents the court from acquiring jurisdiction over the
issue.
However, this procedural flaw or defect may be waived
as: (1) where the defense counsel entered into trial without
objection regarding the absence of arraignment of the accused;
(2) cross-examined the prosecution witnesses; (3) the absence

76

of arraignment has not produced any prejudice to the accused;

(4) however if the accused is charged with a capital offense or
with an offense penalized with reclusion perpetua or life
imprisonment no flaw in the arraignment will be allowed.
May defense counsel enter the plea of his client?
No. The accused must be present at the arraignment and
personally enter his plea. Both the arraignment and plea must
be made of record but failure to do so will not affect the validity
of the proceedings.
Suppose the accused plead guilty but averred that he
committed the offense because of certain exculpatory
facts. May court render judgment under such situation?
No. The court should vacate the plea of guilty entered by
the accused, and enter for him a plea of not guilty.
Suppose the accused is under imprisonment, how should
the court proceed with his case?
1. The case should be raffled and records transmitted to
the judge to whom the case was raffled within three
(3) days from the filing of the complaint or
information.
2. Within ten (10) days from the date of raffle the
accused should be arraigned.
3. Within ten (10) days after his arraignment, the pretrial conference of his case should be conducted.
Is the presence of the offended party during the
arraignment necessary, why?
Yes. The presence of the private offended party should
be required at the arraignment for the purposes of plea
bargaining.
N.B.:1. At his arraignment, the accused may offer and
the court may allow, with the consent of the offended party and
the prosecutor, the said accused to plead guilty to a lesser
offense which is necessary which is included in the offense
charged. (Sec. 2, Rule 116.)
2. After the arraignment and in the course of the trial,
the accused may reiterate his offer to plead guilty to a lesser
offense to a course of the plea bargaining.

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3. Before trial and before the prosecution has presented

any evidence, the accused may still be allowed be plead
guilty to a lesser offense after withdrawing his plea of
not guilty.
4. In any case, no amendment of the complaint or
information is necessary.
Suppose after arraignment the information is amended,
is it necessary to arraign the accused under the
amended information?
It depends on whether the amendment is on nonsubstantial matters or on substantial matters.
If the amended information refers only to non-substantial
matters the accused need not be arraignment on the amended
information.
However, if the amendment refers to substantial matter
the accused must be arraigned under the amended information,
and if this were not done and the defect is brought to the
attention of the court, the defect constitutes a reversible error.
When may a plea of not guilty be entered for the
accused?
1. Where the accused so plead;
2. When he refused to plead;
3. Where in admitting the act charged, he sets up
matters of defense or justification of his act;
4. When he enters a conditional plea of guilty;
5. Where, after a plea of guilty, he introduces evidence
of self-defense or other exculpatory circumstances;
6. When the plea is indefinite or ambiguous.
What is the effect of an unconditional plea of guilty?
As a rule when an accused enters an unconditional plea
of guilty, he thereby admits the crime and all the attendant
circumstances alleged in the information including allegations
of conspiracy, and warrant a judgment of conviction without
need of further evidence. ( Regalado, p. 466.)
What are the exceptions to this general rule?

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1. Where the plea of guilty was compelled by violence or

intimidation
2. When the accused did not fully understand the meaning
and consequences of his plea.
3. When the information is sufficient to sustain conviction
of the offense charged.
4. Where the information does not charge an offense, any
conviction there under being void.
5. Where the court has no jurisdiction.
6. Where the accused pleads guilty to a capital offense, the
court must conduct a searching inquiry on the
voluntariness
and
full
comprehension
of
the
consequence of his plea and shall require the
prosecution to prove his guilt and the precise degree of
culpability (Section 3, rule 116).
7. When the accused pleads guilty to a non-capital offense,
the court at its discretion may receive evidence from the
parties to determine the penalty to be imposed (section
4, rule 116). (see also Regalado, pp. 466).
Suppose during his arraignment for the offense of
homicide, the accused pleaded guilty of the charge but
he was allowed to adduce evidence to prove the
privilege mitigating circumstances of incomplete selfdefense. But in the course of his testimony, the accused
claimed complete self-defense. However, the court
believe the evidence of the accused on complete selfdefense, and thus rendered judgment acquitting the
accused of the crime of homicide. Is the contention
correct? Why?
In People vs. Balisacan, 17 SCRA 1119, where the
accused first entered a plea of guilty and was allowed to prove
the privileged mitigating circumstance of incomplete selfdefense, but in his testimony he claimed complete self-defense,
the Supreme Court hold that the testimony of the accused had
the effect of vacating his plea of guilty. The trial court should
have required the rearraignment of the accused in order from
him to enter a plea of not guilty, or at least it should directed
that a plea of not guilty be entered for him. This not having
been done there was no standing plea at the time the court
rendered its judgment of acquittal. Hence double jeopardy has
not set in because the existence of a valid plea is an essential
requisite of double jeopardy, ( Herrera, p 502.)
Suppose an accused who is charged with a capital
offense offers to plead guilty of the offense charged, and

79

with in inquired by the court for the reason of his offer,

the accused averred that he is bothered by his
conscience.
May the court accept the plea and
manifestation of the accused look, line and sucker and
render judgment pronouncing his guilt and sentence
him?
No, the court should conduct a searching inquiry in the
voluntariness and full comprehension of the consequences of
his plea and must require the prosecution to prove his guilty
and the precise degree of culpability. After which the accused
should be allowed to present evidence on his behalf.
Is reception of evidence mandatory where the accused
who is changed with a capital offense pleads guilty of
the charge.
Under Section 3 of Rule 116, the trial court cannot
simply assume that the accused really committed the crime he
confessed in the court.
What should the court do where an accused charged
with a capital offense pleads guilty of the crime
charged?
1. The court must require the prosecution to adduce
evidence proving the guilt of the accused and the degree
of his culpability.
2. The judge must conduct searching question in to the
voluntariness and full comprehension by the accused of
the consequences of his plea, by requiring him to narrate
when, where how and why the committed the offense
shared the judge must make the accused verbalize the
consequences of his plea. If possible the court should as
the accused to reenact how he committed the crime.
3. The court must also inform the accused of his right to
present evidence In his behalf, if he no desires,
What is the effect where there is adequate evidence on
record showing the guilt of the accused charged with a
capital offense, but the court omitted to determine the
voluntariness of his plea of guilt and to inform him of
the consequences of his plea?
If the evidence on record shows beyond reasonable
doubt his guilt, his improvident plea of guilty loses its legal

80

significance, because his conviction is predicated not on his

plea but on the evidence providing the commission by the
accused of the offense charged, It is only where the judgment
of conviction is solely based on such plea may the same be set
aside on the ground of improvident plea.
May a plea of guilty of a capital offense be subsequently
withdrawn?
Yes, provided the following conditions concur:
1. the plea of guilty is improvidently made;
2. The judgment of conviction has not yet become final.
Section 3 of Rule 116 mentions only capital offense,
Does this means that the rule is not apply to offense
penalized
with
reclusion
perpetua
and
life
imprisonment.
It is believed that the same strict rule as in Section 3 of
Rule 116 also applies to offenses penalized with reclusion
perpetua or life imprisonment.
Section 4 of Rule 116 grants the court discretion to
receive evidence only in non-capital offenses, where the
accused pleads guilty thereto. In other words, where the
accused pleads guilty of a non-capital offense, the court has the
discretion to receive or not to receive evidence.
There is, thus, an apparent gap in the law, but since the
application of Section 3 would be favorable to the accused, such
procedure should be pursued.
LECTURE
One of the rights of an accused is to defend his person
either by himself by counsel at every stage of the proceedings
from arraignment to promulgation of judgment. If at his
arraignment the accused appears without counsel, it is the duty
of the court to inform the accused of his right to counsel and
ask if the desires to engage by himself the services of counsel
of his own choice or to be represented by a court appointed
counsel free of charge of any fee.
Where the accused expresses his desire to employ a
counsel of his own choice, the court should grant reasonable
time to the accused usually 30 days, to enter the appearance of
a counsel de parte.
If the accused manifest that he cannot offered the
professional fees of a counsel de parte, the court should

81

designed a counsel de oficio from the Public Attorneys Office,

or from the office of Legal Aid of the IBP, or any available
member of the bar in good standing who can competently
defend the accused. In localities when no lawyer is available,
the court may appoint any resident of the province of good
repute for probity and ability to defend the accused.
The court shall then give the designated counsel de
oficio reasonable time, usually 10 days, to confer and consult
with the accused as to his plea before proceeding with the
arraignment.
Suppose the complaint or information is vague in its
allegations such that the accused is unable to figure out
the nature and cause of the accusation against him, may
he move to quash or dismiss the complaint or
information?
No, his remedy is to move for production or inspection of
material evidence in the possession of the prosecution,
pursuant to Section 10 of Rule 116.
Under Section 11 of Rule 116, upon motion of the proper
party the arraignment may be suspended. What are the
grounds for suspension of arraignment?
1. The accused appears to be suffering from an unsound
mind which effectively renders him unable to understand
fully the charge against him and to plead intelligently
thereto. In such a case the court shall order his mental
examination and if necessary, his confinement for such
purpose;
2. Thus exist a prejudicial question; and
3. A petition for review of the resolution of the prosecution
is pending to either the Department of Justice on the
office of the President; provided that the period of
suspension shall not exceed 60 days counted from the
filing of the petition with the reviewing office. (Sec. 11,
Rule 116.)
RULE 117- MOTION TO QUASH
What is a motion to quash?
A motion to quash is similar to a motion to dismiss under
Rule 16 of the Rules of Court. It hypothetically admits the facts
alleged in the information but prays for its dismissal on the
grounds enumerated in Section 9 of Rule 117. Hence the court

82

in resolving the motion cannot consider facts contrary to those

alleged in the information or which do not appear on the face of
the information, except those admitted by the prosecution.
(Regalado, p. 477.)
When may a motion to quash be filed?
A motion to quash may be filed at any time before the
accused enters his plea.
Is a motion to quash subjects to any prescribed form?
Yes. The motion to quash should in writing signed by the
accused or his accused, and shall distinctly specify its factual
and legal grounds. The court cannot consider any other ground
except those stated in the motion. (Section 2.)
What is the effect of the failure of the accused to move
to quash or to alleged ant ground thereof?
The failure of the accused to assert any of the grounds of
a motion to quash, either because he did not file a motion to
quash or failed to allege the same in said motion, shall be
deemed a waiver of such ground not so alleged, except the
following which may be filed and raised at any stage of the
proceeding, to wit:
1. The facts alleged in the complaint or information do
not constitute an offense.
2. The court trying the case has no jurisdiction over the
offense charged.
3. The criminal action or liability has been extinguished.
4. The accused has been in former jeopardy. (Section 9,
Rule 117.)
What are the grounds to support a motion to quash the
complaint or information?
1. That the facts charged do not constitute an offense;
2. That the court trying the case has no jurisdiction over
the offense charged;
3. That the court trying the case has no jurisdiction over
the person of the accused;
4. That the officer who filed the information had no
authority to do so.

83

5. That the information does not conform substantially

to the prescribed form;
6. That more than one offense is charged, except when
a single punishment for various offenses is
prescribed by law;
7. That the criminal action or hability has been
extinguished;
8. That the information contain averments which, if true
would constitute a legal excuse or justification; and
9. That the accused has been previously convicted or
acquitted of the offense charged, or the cause
against him was dismissed or otherwise terminated
without his express consent. (Sec. 3, Rule 117.)
Suppose the accused moves to quash the information on
the grounds: (1) the facts charged do not constitute an
offense; (2) the information does not conform
substantially to the prescribed form, acting on the
motion the trail court grant the same and ordered the
information dismissed. Is the court correct?
No. The defects are curable by amendment. It has been
said that generally the fact that the allegations in the
information does not constitute and offense, or that the
information does not conform substantially to the prescribed,
are defects curable by amendment. (Regalado, p. 481.)
Suppose the ground of the motion to quash is that more
than one offense is charged, may the flaw be cured by
amendment.
A complaint or information charging more than one
offense, except when a single penalty is prescribed by law for
the various offenses, can be cured when seasonably objected
to, only by amendment so that only one offense is charged and
separate complaints or information should be filed for each of
the other offenses.
How could you determine if the facts charged constitute
or does not constitute an offense?
The facts alleged, if hypothetically admitted, constitute
the elements of the offense charged.
LECTURE

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Lack of jurisdiction over the offense charge and over the

person of the accused are two grounds of a motion to quash.
Lack of jurisdiction over the offense charged must exist as a
matter of law. The same cannot be conferred as waived by
consent, estoppel or inaction. This ground may raised at
anytime even for the first time or appeal.
Lack of jurisdiction over the person of the accused must
be invoked as the only ground of the motion to quash. Of other
grounds are included together with lack of jurisdiction over the
person of the accused, he is deemed to have submitted himself
to the jurisdiction of the court and to have waived lack of
jurisdiction over his person.
Other forms of lack jurisdiction are over the place where
the offense was committed and lack of jurisdiction over the
case. The first is established and defined by the Supreme Court
pursuant to Section 18 of Batas Pambansa Blg. 129, otherwise
known as The Judiciary Act of 1980; and the second is acquired
by the court upon filing of the complaint or information.
That the officer who filed the information had no
authority to do so is one of the legal grounds of a motion
to quash. Suppose the appointment of such person is
attended some irregularities will these be sufficient
ground to invalidate the information.
No. Irregularities in the appointment of the prosecuting
offense who signs the information will not necessarily invalidate
the same if he can be considered a defacto officer. What will
invalidate the information is where the person who signed the
same war disqualified from appointment to such position, for
then the information is invalid and the court does not acquire
jurisdiction to try the case. (Regalado, p. 483)
An Information must be signed by a qualified and
authorized officer in order for the court to acquire jurisdiction
over the case. (Ibid.)
Give an example where the prosecutor who signed the
information is without authority to do so.
A prosecutor is without authority to sign and file an
information for a crime committed outside his territorial
jurisdiction.

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May the defect that the information has been signed and
filed by a person without authority to do so be cured by
the accused entering his plea without objection to such
defect?
An infirmity in the information such as lack of authority
of the officer signing it can not be cured by silence,
acquiescence or even by express consent, because it is a valid
information signed by a competent officer which among other
requisites, confers jurisdiction on the court over the case and
subject matter of the accusation.
That the criminal action or hability has been
extinguished. How are criminal action or liability
extinguished?
Article 89 of the Revised Penal Code provides that
criminal hability is totally extinguished;
1. By the death of the convict, before or after final
judgment, because one of the juridical conditions of
penalty is that it is personal. (Reyes, Book 1, p. 828);
2. By amnesty, which completely extinguishes the
penalty and all its effects;
3. By service of the sentence;
4. By absolute pardon;
5. By prescription of crime- prescription of the crime is
the forfeiture or loss of the right of the state to
prosecute the offender after the lapse of a certain
length of time (Reyes, p. 834)
6. By prescription of the penalty. Prescription of the
penalty is the loss or forfeiture of the right of the
government to execute the final sentence after the
lapse of a certain length of time.
7. By the marriage of the offended party with the
offender, as provided in Art. 344 of the RPC.
What are the instances which if averred in the complaint
or information would constitute a legal execute or
justification?
The justifying circumstances enumerated in Art. 11 and
the exempting circumstances enumerated in Art. 12, of the
Revised Penal Code.
But these circumstances must be alleged and must
appear on the face of the complaint or information; otherwise,

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they become matters of defense which the defense must

establish.
To be a ground for a motion to quash is it necessary for
the defense to prove the truth of those justifying and
exempting circumstances even if they are allege and
appear on the face of the complaint or information.
It is believe that the defense need not prove the
justifying or exempting circumstances if the same is allege and
appears on the face of the complaint or information pursuant to
the fundamental rule on pleadings that the allegations in a
pleading are conclusive upon the pleader and cannot be
contradicted unless shown to have made through palpable
mistake.
The last ground for a motion to quash refers to the
existence of double jeopardy. What are the essential
factors which the accused must established in order that
this ground may merit the quashal of the information.
In order that the ground of double jeopardy may merit
the quashal of the information the accused must demonstrate:
1. The complaint or information, or other formal charge
was sufficient in form and substance to sustain a
conviction.
2. The court had jurisdiction to render judgment in the
case.
3. The accused had been arraigned and had pleaded.
4. He was convicted or acquitted or the case was
dismissed without his express consent. (Regalado, p.
491)

What is the effect if all the requisites of double jeopardy

are present?
When all the circumstances or requisites of double
jeopardy are present, they constitute a bar to a second
prosecution for:
1. The same offense, or
2. An attempt to commit the said offense, or
3. A frustration of the said offense, or
4. Any offense which necessarily includes or is
necessarily included in the first offense charged.

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When will the conviction of the accused be not bar to a

subsequent prosecution for an offense which necessarily
includes the offense charged in the former complaint or
information?
1. The graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge.
2. The facts constituting the graver charge became
known or were discovered only after the filing of the
former complaint or information.
3. The plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party, unless the offended party fails to
appear at the plea bargaining despite notice and
without justifiable reason.
Suppose the accused charged with frustrated homicide
pleaded guilty of attempted homicide with the consent
of the prosecutor and the offended party at the plea
bargaining. The accused started serving his sentence,
when the victim, who was still alive during the time of
the plea bargaining, died as a result of the crime
committed by the accused. May he be prosecuted for
homicide when he was already serving his sentence for
attempted homicide..
Yes, because Section 7 of Rule 117, the earlier conviction
of the accused shall not be a bar to another prosecution for an
offense which necessarily includes the offense charged in the
former complaint or information where graver offense
developed due to supervening facts arising from the same act
or omission constituting the former charge.
However, if the accused has satisfied or serves in whole
or in part the judgment he shall be credited with the same in
the event of conviction for the graver offense.
Suppose under the same facts where after conviction for
attempted homicide the accused was granted absolute
pardon, but afterwards the victim died. May the accused
still be prosecuted for homicide?
Yes, because the subject of his absolute pardon was his
conviction for attempted homicide, not his crime for homicide.
What do you understand by a provisional dismissal
provided in Section 8 of Rule 117?

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It is a tentative dismissal of a criminal case with the

express consent of the accused made either in writing or orally,
subject to the condition that the case may be revived by the
refilling of the same information or a new information for the
same offense within the period stipulated in the second
paragraph of Section 8 of Rule 117.
In order that the provisional dismissal may not fall under
the purview be covered by the principle of double
jeopardy, what requisites must concur?
1. The prosecution with the express conformity of the
accused, or the accused himself, moves for a
provisional dismissal of the case; or both the
prosecution and the defense move for a provisional
dismissal of the case.
2. The offended party is notified of the motion for a
provisional dismissed of the case.
3. The court issues an order granting the motion and
dismissing the case provisionally.
4. The public prosecutor is served with a copy of the
order of provisional dismissed of the case.
5. The order sustaining the motion to quash will not be
a bar to another prosecution for the same offense,
unless the order is based on the ground that the
criminal action liability has been extinguished or on
the ground previous conviction, acquittal or dismissal
without the consent of the accused.
6. Except where the motion to quash is based on double
jeopardy, the accused cannot claim double jeopardy
as the dismissal of the information was procured not
only with his consent but at his own instance.
Suppose the motion to quash is denied, what are the
remedies available to the accused?
1.

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An order denying a motion to quash is interlocutory and

therefore not appealable. Hence, as a rule he must go
to trial on the merits where he may present the ground
of his motion to quash as a special defense. If after trial
on the merits, judgment is rendered adversely, the
accused, he can appeal the judgment and raise the
same defenses or objections in the manner authorized
by law for review by the appellate court.

The order denying the motion to quash being an

interlocutory order, cannot the accused avail of the
remedies of certiorari, prohibition or mandamus.
As a rule the remedies of certiorari, prohibition or mandamus
are not the correct remedies against an order denying a motion
to quash. However, in some cases allowed, the accused to avail
of such remedy;
1. Where the ground of double jeopardy was clearly
establish by the defense, the Supreme Court granted the
writ of prohibition. (Sangalang vs. People, et al., 109 Phil
1143)
2. In another case, where the Supreme Court found that
appeal would not be an adequate remedy to relieve the
accused of the effects of the action complained of, it
permitted the remedy of certiorari. ( Mendoza vs.
Almeda- Lopez, 64 Phil, 820.)
3. Certiorari and prohibition were allowed, where the trial
court was patently without jurisdiction but denied the
motion to quash on the contrary ground.( Lopez, et al vs.
City Judge vs. et al, G.R. No L-25795,Oct. 29, 1966; Meod
vs. Argel, etc. et al, G.GR. No. L-41958, July 20, 1986.)
4. The same remedies were granted where the offense had
clearly prescribe. (People vs. Ramos, G.R. No. 25265,
May 9,1978.) also (Regalado, vol. 2, pp. 488-489.)
RULE 118 PRE-TRIAL
Pre-trail is mandatory in all criminal cases cognizable
before trial courts, whether collegiate or not. It should hold
after arraignment and within 30 days from the date the court
acquires jurisdiction over the person of the accused, unless a
shorter period is provided in special laws or circulars of the
Supreme Court.
What are the matters which should be taken up at the
pre-trial?
The following matters should be considered at the pretrail conference:
1. Plea bargaining
2. Stipulation of facts;
3. Marking for identification of evidence of the parties;

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4. Waiver of objections to admissibility of evidence;

5. Modification of the order of trial of the accused admits
the charge but interposes a lawful defense; and
6. Such other matters as will promote a fair and
expeditious trial of the criminal and civil aspects of the
cases.
LECTURE
The bargaining may be available of by the accused at
any of the three earlier stages of a criminal case, specifically
before the prosecution starts presenting its evidence.
At his arraignment the accused, with the consent of the
private offended party and the prosecutor, may apply and may
be allowed to plead guilty to a lesser offense which is necessary
included in the offense charged.
After arraignment t during the pre-trial stage, the
accused, with the consent of the offended party and the
prosecutor, may still be allowed to plead guilty to said lesser
offense after withdrawing his/her earlier lea of not guilty. No
amendment of the complaint or information is necessary.
After pre-trial and before trial on the merits begins, the
accused may move to withdraw his plea of not guilty and in
order that he may plead guilt to the lesser offence necessarily
unclided in the offence charge. This to must be consented by
the offended party and the prosecutor.
Suppose the private offended party withheld his/her
consent to the offer of the accused to plead guilty to a
lesser offence which is necessarily included in the
offence charged, even though the prosecutor agrees
with the offer of the accused, may the court allow the
accused to plead guilty to such lesser offence.
It is believed that the court may allowed the accused to
plead guilty t the lesser offence necessarily included in the
offence charged, despite the absence of the offended partys
consent thereto, provided that it is prosecutor who has control
in the prosecution of the case before the court. The offended
partys concern in they case is only in the aspect of the civil
liability of the defendant

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Suppose in the course of pre-trial the prosecution and

the defense entered into a stipulation of facts. Some of
the facts stipulated were favorable to the prosecution
and adverse to the defense, others are favorable to the
defense and adverse to the prosecution. The prosecutor,
the defense counsel and the accused with the assistance
counsel singed the stipulation of facts. The court
convicted the accused. Among the bases of the
conviction were his admissions made in the stipulation
of facts. The accused assailed the judgement on the
ground that the admissions were violative of his
constitutional right against self-incrimination. Is the
contention of the accused legally favorable.
No. The admissions made by the parties in their
stipulation of facts entered during the pre-trial in criminal cases
have long been allowed and recognize as declarations
constituting judicial admissions, hence binding upon the parties.
(People vs. Bacar, 24 SCRA 512) An admission, verbal or
written, made by the parties in the course of the trial or other
proceedings in the same does not require proof. (Section 4, Rule
129, RULES OF COURT)
LECTURE
All agreements and achievements made and entered
during the pre-trial conference must be reduced in writings and
signed by the accused and his counsel in order to be binding on
the accused. The agreement must also be approved by the
court. (Section 2, Rule 118)
After the pre-trial conference, the court shall issue a
order reciting the action taken, the facts stipulated, and the
evidence marked. Such order shall bind the parties, limit the
trail to matters not disposed of, and control the course of the
action during the trial, unless modified by the court to present
manifest injustice. (Section 4, Rue 118)
RULE 119- TRIAL
What does trial connotes in procedural law.

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Trial refers to the process where the arties in a litigation

put forward their respective evidence to substantiate there
conflicting claims.
In criminal cases after the accused has entered a plea of
not guilt and following the conclusion of the pre-trial, that trial
court schedules the case for reception of the respective
evidence of the parties on disputed matters. The accused is
given 15 days to prepare for trial or submission of his proofs in
court. Trial should set t commence with 30 days from receipt of
the pre-trial order. (Section 1, Rule 119)

The trial or reception of evidence of such party shall

proceed in the following order:
1. The prosecution opens the presentation of evidence
to prove he charge against the accused and in the
proper case, his civil liability.
2. The accused may present his evidence to prove his
defense and damages, if any, arising from the
issuance of provisional remedy in the case.
3. The prosecution and the defense may, in that order,
present rebuttal and surebuttal evidence unless the
court, in furtherance of justice permits them to
present additional evidence learning upon the main
issue. (Section 11, Ibid.)
Is the order of presentation of evidence inflexible.
No. When the accused admits the act or omission
charged in the complaint or information but interposes a lawful
defense the order of trial may be modified. (Section 11, Rule
119)
What do you understand about the rule of continuous
trial.
The ruled requires that once trail is commenced it shall
continue from the day to day as far as practicable until
terminated.
To achieve this end, the court before terminates the pretrial, schedules the date of the reception of the respective
evidences of the parties upon the consultation with their
calendar and synchronization with the calendar of the court.
The date agreed upon by the parties for the reception of their

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evidence is incorporated in the pre-trial order together with the

other agreements.
The entire period of trial should not exceed 180 days
from the first day of trial. (Section 2, Rule 119) as a rule.
May the rule on continuous trial be suspended.
Yes. 1. Where on account of reasonable delays, as
enumerated in Section 3 of Rule 119, continuous trial canto
proceed. 2. When the postponement and continuance cannot be
avoided, otherwise miscarriage justice might ensure.
What facts may justify the court in granting continuance.
1. When failure to grant continuance may likely result in
miscarriage of justice.
2. Where the case as a whole is novel, unusual and
complex, due to the number of accused or their mature
of the prosecution or that it is unreasonable to expect
adequate preparation within the established periods.
May the period for continuous trial be extended.
Yes, pursuant to Section 6 of Rule 119, the period for
continuous trial may be extended on meritorious ground.
May the court grant postponement due to absence of a
witness.
Yes, if the following requisites are present;
1. That the testimony f the witness is really material
and appears to the court to be so;
2. That the party who applies for postponement has not
been guilty of neglect;
3. That the witness can be had at the time to which the
trial has been deferred;
4. That no similar evidence could be obtained.
(Regalado, p. 625)
5. That to deny the motion for postponement and
continuance would amount to a denial of due
process.
What is the effect of a granted motion for postponement
on the period of 180 days from continuance of the trial.
The period covered by the postponement and
continuance will not be excluded from the period of 180 days

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within which to terminate the trial. This period may be extended

only upon authority of the Supreme Court.
The accused may apply for the conditional examination
of witnesses in his behalf even before his time to
present his evidence. But grant of the application is
subject to certain conditions. What are these conditions
which may warrant advance examination of witness in
behalf of the accused.
1. The witness is sick or informs to afford reasonable
ground believing that he would not be able to attend the
trial.
2. The witness is residing in a place more than 100
kilometers form the place of trial and has no mean to
attend the same.
3. Other similar circumstances exist that would not make
unavailable or present him form attending the trial.
What is the procedure to secure the conditional
examinations of witness in behalf of the accused.
1. The accused should file a motion with notice to other
parties.
2. The motion must state the name and residence of the
witness.
3. The motion must aver the substance of his testimony.
4. The motion must allege the grounds of the application
for the conditional examination of the witness.
5. The motion should be supported by the affidavit of the
accused and other evidences may be required by the
court.
How the conditional examination of witness in behalf of
the accused be made, suppose the court is satisfied that
the same in necessary.
1. The court shall issue order directing that such witness be
examined at a specified date, time and place.
2. A copy of the order must be served on the prosecutor at
least 3 days the scheduled examination.
3. The examination shall be taken before a judge or if this
is not practical, before a member of the Bar in good
standings so designed in the order.
4. If the order be made by a court of superior jurisdiction,
the examination should be made before an inferior court
to be designated in the order.

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5. The examination shall proceed even in the absence of

the prosecutor provided he has been duly notified of the
hearing.
6. A witness record of the testimony shall be taken.
The prosecution may also apply for conditional
examination of witnesses in advance. On what may such
application be based.
1. That the prosecution witness is too sick or inform to
affirm at the trial as desisted by the court;
2. That the witness has to leave the Philippines with no
definite date of returning.
Suppose the court is considered that when required the
witness whose testimony is material would not appear
to testify, what remedial measures may undertake under
such situation.
When it is made to appear under oath and satisfactory
proof that he will not appear when required, the court, upon
motion of either party, may order the witness to post bail to
assure his appearance in such amount as it may deem fit.
Should the witness to do so the court shall commit to jail until
he complies or his testimony taken.
Note:
When two or more accused are indicted in one
information, they should be tried jointly. But when the joint trial
would be prejudicial to one or both accused, the court, upon its
own discretion and upon motion of the prosecution or any of the
accused, may order separate trial.
Where the separate trials ate granted by the court it is
duty of the prosecution to repeat and produce all its evidence at
each and every trial, unless all the accused are present during
the presentation of the Peoples evidence and their defense
counsels have the opportunity to cross examine.
Section 17 of Rule 119 provides for the requisites and
procedure to discharge an accused where several
persons are indicted in one information become a state
witness. What do you understand by the term STATE
WITNESS.
A state witness is one of two or more persons jointly
charged with the commission of a crime but it is discharges with
his consent as such accused with his commitment to be witness

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for the state and testify against his co-accused regarding their
commission of the offence charged. The discharges accused
must himself be PARTICIPAS CRIMINISIS.
What are the requisites in order that a co-accused may
be discharged to become state witness.
1. There are two or more persons jointly charged with the
commission of any offence.
2. The prosecution must move for the discharge of one or
more accused to become as state witness, before the
prosecution rests its case.
3. The accused to be discharge must give his/their consent
to be state witness.
4. The prosecution must present evidence and the sworn
statement of each proposed state witness.
5. At the hearing the prosecution must demonstrate to the
satisfaction of the court:
a. There is absolute necessity for the testimony of
the accused whose discharged is requested.
b. There is no direct evidence available for the
proper prosecution of the offence committed,
except the testimony of said accused.
c. The testimony of said accused can be
substantially corroborated in material points;
d. Said accused does not appear to be the most
guilty; and
e. Said accused has not at any time been convicted
of any offense involving moral turpitude. (Section
17, Rule 119)
N.B.: The evidence adduced in support of the discharge shall
automatically form past of the trial. But if the court
denied the motion to discharge the accused to become
state witness, his sworn statement shall be inadmissible
in evidence.
What is meant by absolute necessity?
Absolute Necessity connotes that there is no direct
evidence to implicate the other accused in the commission of
the offense charge except the testimony of the accused who is
proposed to be discharge to be a state witness. For instance, in
conspiracy which done in secret it is necessary to discharge one
of the accuse to provide direct evidence of the commission of
the crime, other wise the facts necessary for conviction would
not be revealed.

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What does moral turpitude means?

Moral turpitude has been defined as everything which
is done contrary to justice modesty as good morals; an act of
base news, vileness or depravity in the private and social duties
which a man owes his fellowmen or to society in general,
contrary to the accepted and customary rule of right and duty
between man and man, or conduct contrary to justice, honesty,
modesty or good morals.
The motion to discharge an accused to be state witness
was opposed by the other accused on the ground that
the accused proposed to be discharge does not appear
to be the least guilty. Is the objection tenable?
No, what paragraph(d) of Section 17 requires that the
accused proposed to be discharge does not appear to be the
most guilty, which means he has not measured the highest
degree of culpability in terms of participation in the commission
of the offense, and this is not necessarily equated with the
severity of the penalty to be imposed. The rule on particeps
criminis considers his actual and individual participation in the
crime. If he has d a lower degree of actual participation in the
crime and all the other requirements of Section 17 are present,
he can be utilized as a witness for the Government. (Regalado,
p. 542)
Supposed the accused proposed to be discharged to be
a state witness as been convicted but his conviction is
still pending appeal, may he be disqualified to a state
witness on that ground?
An accused is disqualified to be a state witness only if
had been convicted by final judgment. But if at the time of his
discharged his conviction and his giving of testimony as a state
witness, his conviction by the trial court for another offense was
still pending appeal, is not a ground for his disqualification to be
a state witness, if all the requirements of Section 19, Rule 119,
are present.
Supposed the accused with a case pending appeal, his
conviction was subsequently affirmed by the appellate
after he was discharge to be a state witness. Will the
subsequent affirmation of his conviction in another
affect his previous discharge?

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No. in Mangubat, et al. vs. Sandiganbayan, et al.

(Regalado, p. 542), where at the time of the discharge of the
accused and her giving of testimony as a state witness, her
previous conviction for another offense was still pending on
appeal, the Supreme Court held, the subsequent affirmance of
said conviction by the appellate court will not invalidate her
discharge or render inadmissible her testimony.
Supposed after the accused has been discharge and
testified as a state witness, it was discovered that he
had been previously convicted in another case of a crime
involving moral turpitude will his erroneous discharge
and his testimony be affected?
No. The discharge of the accused though erroneous
because of an earlier conviction in another case of a crime
involving moral turpitude, such fact will not affect the legal
consequences of his discharge. Such fact will note affect his
competence as the validity of his discharge.
Supposed after his discharge to be utilized as a state
witness, the accused retracts and refuses to keep his
part of the agreement, so the prosecution re-included
him in the information. May the sworn statement of the
accused confusing his participation in the commission be
used against him?
Yes. His confession of his participation in the crime is
admissible in evidence against him. His immunity operates only
where his failure to testify is not imputable to him but to the
fault prosecution, because under such event the accused is
deemed to have complied with his undertaking for his
discharge.
What are the effects of the discharge of an accused to
be a state witness?
1. If the court grants the motion, the evidence in
support of the
discharge shall automatically form part of the trial.
However, if the court denies the motion to discharge the
accused to be a state witness, his sworn statement shall be
inadmissible in evidence, even against his co-accused.
(Section 17, Rule 119)
2. The discharge of the accused operates as an
acquittal and bar

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to further prosecution the same offense.

Supposed at any time before judgment it became
apparent that the accused cannot be convicted of the
offense charged or of any other offense necessarily
included in the offense charged, may the court dismiss
the information as a matter of course?
When it becomes manifest at any time before judgment
that a mistake has been committed in charging the proper
offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the
accused shall not be discharged if there appears good cause to
detain him. In such cause, the cause shall commit the accused
to answer for the proper offense and dismiss the original case
upon the filing of the proper information. (Section 19, Rule 119.)
What then are the requisites for Section 19 of Rule 119
to operate or apply?
1. The accused must be charged with an offense.
2. It became manifest at any before judgment that a
mistake
has been committed in charging the accused with the proper
offense.
3. The accused cannot be convicted of the offense
charged nor
of any other offense which is necessarily included in the offense
charged.
4. The accused cannot be discharged if there is a good
cause to
detain him.
5. The court shall commit the accused in order to
answer the
proper offense.
6. The court shall order the filing of another information
charging the proper offense.
7. After the proper information has been filed the court
shall
order the original case dismissed.
Suppose after trial, the accused is formed to have
committed a lesser offense which is necessarily included
in the graver offense charged, but such less offense has
already prescribed. With what offense may the court
convict the accused?

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He cannot be convicted either with the graver offense

nor with the lesser offense. He cannot be convicted of the
graver offense charged because he has not committed such
offense.
He cannot be convicted of the lesser offense because
the same has prescribed and his criminal liability has been
extinguished.
What is your perception of a demurrer to evidence?
A demurrer to evidence is a plea filed by the defense
after the prosecution has rested its case for the dismissal of the
case on the ground of insufficiency of evidence to convict the
accused.
Who may initiate a demurrer to evidence?
1. The court on its own initiative after giving the
prosecution the
opportunity to be heard;
2. The defense may file a demurrer to evidence with or
without
leave of court.
When may a motion for leave to file demurrer to
evidence be filed?
The defense may file its motion for leave to file demurrer
to evidence within five days after the prosecution has rested its
case.
The prosecution may oppose the motion for leave to file
demurrer within 5 days.
Suppose leave is granted within what period should the
demurrer be filed?
The defense should file its demurrer within ten days fro
receipt of the order granting leave. The prosecution may oppose
the demurrer within ten days from receipt of the defense
demurrer.
What is effect of denial of the demurrer?
1. If the demurrer to evidence was filed by the accused
with
leave of court, such denial will not bar him from adducing
evidence in his defense.

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2. Where the demurrer to evidence is filed without

leave of
court, its denial bars the accused from adducing his evidence,
and submits the case for judgment in the basis of the evidence
for the prosecution.
Suppose the courts grants the demurrer to evidence and
dismisses
the
case.
Subsequently
files
another
information against the same accused for the same
offense. The accused filed a motion to quash the second
information on the ground of double jeopardy. The
prosecution countered that double jeopardy does not set
in because the dismissal was with the consent of the
accused. If you were the judge how will you resolve the
incident?
The motion to quash the second information should be
granted. The dismissal of the case by virtue of the demurrer to
evidence was based on the merits of the prosecutions evidence
that is, it is insufficient to convict the accused beyond
reasonable doubt.
N.B.I at any time before finality of the judgment of
conviction, the judge may, motu proprio or upon motion, with
learning in either case, reopen the proceedings to avoid a
miscarriage of justice. The proceedings shall be terminated
within 30 days from the order granting it. (Section 24, Rule
119.)
This remedy does not require the consent of the
accused, and is based on the inherent power of the court to
amend and control its processed and order so as to make them
conformable to law and justice (Section 5-g, Rule 135.)
A reopening of the case can be made by the court before
judgment and this does not require the consent of the accused.
For instance, where the accused was not the one who
committed the offense charged but on account of poverty he
was unable to adduced evidence to prove his defense he would
likely be convicted, the court may order the trial and reception
of the accuseds evidence reopened to avoid a miscarriage of
justice.
What is the legal connotation judgment?
Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense charged, and the
verdict is that guilty the imposition on him of the proper penalty
and civil liability if any. (Section 1, Rule 120.)

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It must be written in the official language, personally and

directly prepared by the judge and signed by him. It shall
contain clearly and distinctly a statement of the facts and the
law upon which judgment is based. (Ibid.)
How should a judge formulate his decision?
As a rule, a judgment should contain the following data
or features:
1. The offense charge must be legal qualification, the
acts
committed by the acts, including the qualifying and aggravating
circumstances. Usually this is based in the allegation of the
complaint or information;
2. The plea entered by the accused;
3. The factual setting of the case as established by the
evidence, which gave rise to the case;
4. The defense of the accused and the evidence he
adduced to
support the same.
5. The ratio decidendi or the reason given by the court
to
sustain its judgment;
6. If the judgment is for conviction, the imposable
penalty
provide by the law violated, as the maximum penalty, and the
penalty which may be imposed under the Indeterminate
Sentence Law, as the minimum penalty.
7. The civil liability or damages caused by the wrongful
act or
omission of the accused which may be received by the offended
party from the accused, unless the enforcement of the civil
liability is subject of a separate civil action, has been reserved
or has been waived.(Section 2, Rule 120)
8. In case the judgment is for acquitted the judgment
should
state whether the evidence of the prosecution failed to prove
the guilt of the accused beyond reasonable doubt; or the acts of
the accused complained of is justified under the law; or the law
exempts him from criminal liability for his acts; or his acts do
not constitute an offense.
This is inconsonance with Article 29 of the civil code and
of the
rule that the extinction of the penal action does not carry with it
the extinction of the civil, unless such extinction proceeds from
a declaration in a final judgment that the fact from which the
civil liability might arise does not exist. (Section 2, Rule 111.)

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Suppose the judgment personally prepared by the judge

was set for promulgation on June 30, 2006. How the
judge unexpectedly died in the evening of June 29, 2006.
On the following day, June 30, 2006, unknown to the
pairing judge about the death of the former, the latter
promulgated the judgment. Is the said judgment
binding. Under Section 13 of rule 110, a complaint or
information must be charge only one offense, except
when the laws prescribes a single punishment fro
various offenses. Suppose in a single information filed
by the assistant prosecutor charges an accused with
white slavery and with kidnapping. May the court
convict the accused with the two offenses?
If before he pleads the accused filed a motion to quash
the trial court cannot convict him with any of the offenses
charged in a single information. But if he did not question the
defect of the information and instead entered his plea, he is
deemed to have waived the defeat and the court may convict
him of a many offenses as are charged and proved and impose
on him the penalty for each offense, setting out separately the
findings of facts and law in each case. See Section 3 of rule 120.
Let us assume that an accused was charge with murder
in an information filed by the assistant prosecutor.
However, the prosecution failed to prove any of the
qualifying circumstances alleged in the information
which qualified the killing into murder. Nonetheless, the
evidence of the prosecution has established beyond
reasonable doubt that the victim is the illegitimate
grandfather of the accused. With what crime may the
accused be held liable?
The trial court can convict the accused with homicide.
The accused cannot be convicted with parricide, because his
relation with the victim was that an illegitimate ascendant.
Murder was not proved. Homicide, the crime proved, is included
in the crime charged.
When there is a variance between the offense charged in
the complaint or information and that proved, and the offense
charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved
which is included in the offense charged, or the offense charged
which is included in the ffense proved. (Section 4, Rule.)

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How will you differentiate Section 3 of Rule 120 with

Section 19 of Rule 119?
When does an offense charged necessarily includes the
offense proved; and when the offense proved is
necessarily included in the offense charged?
1. An offense charged necessarily include the offense
proved
when some of the essential elements or ingredients of the
former as alleged in the complaint or information, constitute the
latter.
2. An offense charged is necessarily included in the
offense
proved, when the essential ingredients of the former constitute
or form part of those constituting the latter. (Section 5, Rule
120)
How does Section 5 of Rule 120 operate?
1.

When the offense proved is less serious than the

offense
charged and is necessarily included in the latter, the defendant
can be convicted of the offense proved. Example offense
charged: Murder; offense prove: homicide.
2. The offense proved is more serious than and include
the
offense charged, the defendant can be convicted only of the
offense charged. Example offense charge: Slight physical
injuries; offense proved: serious physical injuries.
3. The rule does not require that all essential elements
of the offense charged in the information be proved
in order that the accused may be convicted of the
crime included in the one charged, it is sufficient
that some of the essential elements or ingredients of
the crime charged be established and that these
constitute the crime proved.
How is judgment promulgated?
The judgment must be promulgated by reading the text
of the decision in its entirety in the presence of the accused and
any judge of the court in which it is rendered. Merely reading
the dispositive portion of the decision to the accused is not
sufficient. The fact and the law upon which such judgment is
based must be read to the accused. The requirement must be
observed if the conviction is for grave or less grave offense.

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If the conviction is only for light offense, the judgment

may be promulgated in the presence of counsel or
representative of the accused.
If the judge is absent or outside the province or city, the
judgment may be promulgated by the clerk of court.
The judgment should be promulgated by the court which
rendered the judgment. But supposed the accused is
confined or detained in another province or city, how
should the judgment be promulgated?
The court which rendered the decision should send to
judgment to the Executive Judge of the RTC which has
jurisdiction over the place where the accused is confined or
detained with the request that the judgment be promulgated.
Such Executive Judge, after promulgation, shall have the
authority to accept the notice of appeal and to approve the bail
bond pending appeal. However, if the decision has changed the
nature of the offense from non-bailable to bailable the
application for bail can be filed in and resolved only by the
appellate court.
Supposed the accused, despite proper notices, fails to
appear at the scheduled date of promulgation, how
should the promulgation be effected?
The promulgation shall be made by recording the
judgment in the criminal docket book and serving him a copy
thereof at his last known address.
How will the non-appearance of the accused at the
promulgation affect his case?
If the judgment is for conviction and his failure to appear
was without justifiable cause, he shall lose the remedies
available to him under Rules against the judgment, and the
court shall order his arrest.
How may the accused relieve himself from the adverse
effect of his non-appearance at the promulgation.
Within 15 days from the promulgation of the judgment
the accused may surrender himself and file a motion for leave
to avail himself of the remedies against the judgment of
conviction.

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In his motion for leave he must state the reasons for his
non-appearance at the promulgation and if he proves his
absence was for a justifiable cause he shall be allowed to avail
of the remedies provided by the Rules within 15 days from
notice. (Section 6, Rule 120.)
Supposed the accused is a detention prisoner, how the
notice of promulgation be communicated to him?
If the accused is a detention prisoner, the clerk of court
should notify the accused personally thru his warden and his
counsel.
Supposed he has been tied in absentia, how will the
notice of promulgation be served on him?
If the accused has been tried in absentia, because he
escaped from prison or has jumped bail, notice of promulgation
shall be served on him at his last known address.
May the trial court order its judgment modified?
Yes. Pursuant to Section 7 of Rule 120, a judgment of
conviction may, upon motion of the accused, be modified or set
aside before it becomes final or before appeal is perfected.
What are the requisites for modification judgment?
1. A judgment of conviction has been rendered.
2. the judgment has not become final or appeal has
been perfected.
3. The modification of judgment must made upon
motion of the accused.
Thus, the previous rulings allowing the prosecutor or the
court motu propio to move for modification of judgment,
although it has not become final, is no longer permissible.
When does judgment become final?
1. If the judgment is one of acquitted, it becomes final
at once upon promulgating.
2. If judgment is conviction after the lapse of the period
for perfecting an appeal;
3. Judgment also becomes final when the accused
serves the same either partially or totally, or when
the accused waives in writing his right to appeal;

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4. Judgment becomes final immediately when the

accused applies for probation.
5. When the accused is sentenced to suffer the death
penalty, the judgment becomes final after 15 days
from the accused is notified of the decision of the
Supreme Court affirming the judgment of the trial
court.

RULE 121 NEW TRIAL OR RECONSIDERATION

A motion for new trial or reconsideration may be filed.
When should the motion be filed?
At any time before a judgment of conviction becomes
final a motion for new trial or reconsideration may be filed. It
should filed within 15 days from promulgation.
Who may file such motion?
The accused or the court at its own instance with the
consent of the accused may file such motion.
Where should the motion be filed?
1. A motion for new trial or reconsideration should be
filed with
the trial court within 15 days from promulgation of judgment or
before an appeal is perfected. This interrupts the period for
appeal.
2. If an appeal has been perfected and before the
judgment of
the appellate convicting the appellant becomes final, the
appellant move for new trial in the appellate court on the
ground of newly discovered evidence material to his defense.
(Section 14, Rule 124.)
What are grounds for new trial?
The court shall grant a new trial on any of the following
grounds;

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1.
2.

That errors of law or irregularities prejudicial to the

substantial rights of the accused have been
committed during the trial;
That new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and produced
at the trial, and which if introduced and admitted
would probably changed the judgment. (Section 2,
Rule 121)

What are the grounds for reconsideration?

The court shall grant reconsideration on the ground of
errors of law or fact in the judgment which requires no further
proceedings. (Section 3, Rule 121)

The grounds of new trial under Section 2, par. (a), of

Rule 121 are errors of law and irregularities prejudicial
to the rights of the accused, while identically the ground
of reconsideration under Section 3 are errors of law or
facts. What are differences between the two sections of
Rule 121?
The first ground for new trial that the errors of law or
irregularities have been committed during the trial. The phrase
During the trial refers to the period from arraignment to the
rendition of the judgment and not only to the trial proper, and
considers, as errors committed during such period, the holding
of trial over the objection of the accused despite the lack of
preliminary investigation or where the accused was denied of
competent accused, or where counsel was not afforded 15 days
to prepare for trial. This ground of new trial may require further
court proceedings.
A motion for reconsideration looks into the errors of law
or facts made in the judgment itself. It does not require further
proceedings, but only to reconsider to pronouncements and
conclusion of law or facts and to make them conformable to
applicable law and established facts in the evidence. To correct
such errors no new or further trial is required.
In order that new trial may be granted on the ground of
newly discovered evidence, what factors must be shown
to the trial court to its satisfaction?

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1. That was unknown to the accused during the trial

and wasdiscovered only after the trial;
2. That such evidence could not have been discovered
and produced at the trial despite reasonable
diligence;
3. That the newly discovered evidence is of such
weight, if admitted would probably change judgment
and result of the case.
Name some example of evidence which will not justified
grant of new trial?
1. If the newly discovered is simply impeaching.
2. If it is only corroborative or commulative.
3. Where the newly discovered evidence is inherently
improbable
4. Where the newly discovered evidence consists
merely of recantation of prosecution witnesses,
unless there is no other evidence to sustain
conviction except the testimony of the recanting
witness.
N.B.: Where the motion for new trial calls for resolution of any
question of fact, the court sets the same for hearing with notice
to the prosecutor, and the private prosecutor, if there is one, to
receive the evidence thereon by affidavit or otherwise. (Section
5, Rule 121.)
Is affidavit of merit a requirement in motions for new
trial in criminal case?
Unlike in civil cases, the absence of affidavits of merits in
motions for new trial in criminal cases is not a fatal defend and
can be cured by the testimony by the testimony presented at
the new trial. (Regalado, p. 579.)
What are the effects if a motion for new trial is granted?
1. If the new trial is granted on the ground of errors of
law or irregularities committed during the trial, all the
proceedings and evidence affected thereby are set
aside and taken new in a trial denovo. The court
may, in the interest of justice, allow the introduction
of additional evidence.

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2. Where the new trial is granted on the ground of

newly discovered evidence, the evidence already
adduced shall stand and the newly discovered and
such other evidence as the court may, in the interest
of justice, allow to be introduced shall be taken and
considered together with the evidence already in the
record.
3. In all cases, when the court grants new trial or
reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered
accordingly.
Supposed the information charges the accused with a
greater offense, but after trial on the merits, the trial
convicted him of a lesser offense included in the offense
charged. On appeal, however, the appellate court
granted the accused, upon motion, a new trial, and
remanded the case to the court of origin for further
proceedings. At the conclusion of the new trial, the trial
court found the accused guilty of the greater offense
charged in the information. May the accused claim that
he was placed in double jeopardy?
No, such new trial does not amount to placing in double
jeopardy for the same offense within the contemplation of the
constitution. The appeal of the accused amounts to a waiver to
the plea of second jeopardy by asking that he be again tried for
the same offense for which he has once been convicted and if
that request be granted he must take the burden with the
benefit and go back for the new trial upon the whole case.
(Herrera, pp. 809-810)

RULE 122 APPEAL

Who may appeal?
Any party may appeal from a judgment or trial order,
unless the accused will be placed in double jeopardy. (Section 1)
When may judgment or order be considered final?

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A judgment or order is final, for purposes of appeal, if it

completely disposes of the issues so that nothing more is left to
be done by the trial court or no further questions affecting the
merits of the case remain for adjudication.
How will distinguish final judgment for purposes of
appeal from final judgment for purposes of execution?
Final judgment for purposes of execution is one where
fifteen days from receipt of the party who desire to appeal but
failed t file the necessary note of appeal within the
reglementary period. After the expiration of the 15-day period
from notice, the judgment is said to have become final and
executory.
The prosecution may appeal from the ruling of the trial
court, provided the accused is not placed in double
jeopardy. When may an appeal by the prosecution be
considered to have not placed the accused in double
jeopardy?
1. If the case is dismissed upon motion or with the
consent of the accused;
2. If the dismissal is not an acquitted or based upon
consideration of the evidence or of the merits of the
case;
3. If the question to be passed upon by the appellate
court is purely legal so that should the dismissal be
found incorrect, the case would have to be remanded
to the court of origin for it to determine the guilt or
innocence of the accused. (Regalado, p. 583.)
May the offended party appeal from the judgment of the
trial court?
Yes. But the appeal shall be limited only to the aspect of
the civil liability of the accused. The appeal of the offended
party insofar, as his right to civil liability is concerned is
independent of the right of, and perfection of his own appeal
by, the accused. In other words the appeal of the offended party
will not affect the criminal aspect of the case.
Where may an appeal be taken?
1. To the RTC in cases decided by the first level courts;

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2. To the Court of Appeals or to the Supreme

the proper cases provided by law, in cases
by the RTC; and
3. To Supreme Court in cases decided
Sandiganbayan and the court of appeals
questions purely of law.

Court in
decided
by the
only in

How may appeal be taken?

PROCEDURE IN FIRST LEVEL COURTS
What courts are classified as first level courts?
The MeTC, MTC and MCTC compose the first level courts.
The first level courts are governed by two types of
procedures. What are these procedures?
1. The procedure observed in the RTC also applies
generally in the first level courts, except where a
particular provision applies only the either court.
2. The Revised Rule on Criminal procedure applies only
to the first level courts in specific cases.
What criminal cases fall under the exclusive jurisdiction
of first level courts?
1. All violations of city or municipal ordinances
committed
within
their
respective
territorial
jurisdiction;
2. All offenses punishable with imprisonment of not
more than six years irrespective of the fines and
regardless of other imposable accessory or other
penalties and the civil liabilities arising there from;
3. All offenses involving damage to property through
criminal negligence;
NOTE: The penalty for reckless imprudence resulting in
homicide as arrest major in its maximum period to prision
correctional in its medium period. 4 months and 1 day to 4
years to 2 months. The felony falls under par. 2 above:
4. All offenses committed not falling under the
exclusive original Jurisdiction of the Sandiganbayan
where none of the accused is occupying positions
corresponding to salary grade 27 and higher.

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5. All offenses where the only penalty provided by law

is a fine not exceeding P4,000.00
Of the criminal cases within the exclusive original
jurisdiction of the first level court, what cases are
subject to summary procedure?
1.
2.
3.
4.

Traffic Violation
Rental law Violations
Violations of city or municipal ordinances.
All other cases where the penalty does not exceed
six months and/or fine of P1,000.00 irrespective of
other imposable penalties, accessories or otherwise,
or of the civil liability arising there from.
5. In offense involving damage to property thru criminal
negligence when this imposable time does not
exceed P10,000.00
How are criminal actions commenced in the first level
courts?
Criminal actions in the first level courts are commenced
either by a complaint as information except in Metro-Manila and
other chartered cities, where criminal actions are commenced
only by information, unless the offense cannot be prosecuted de
oficio.
When a complaint as information is filed in a first level
court, what is the initial step which the court should
take?
The court should determine where the action is proper
for summary procedure of for regular procedure, and should
issue the corresponding order declaring whether or not the case
shall be governed by the Rules on Summary Procedure.
What documents should accompany the complaint or
information?
The complaint or information should be accompanied by
the affidavits of the complainants and his witnesses in such
under of copies as there are accused plus two copies for the
courts file.
What should the affidavits contain or state?

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The affidavits should state only facts of direct personal

knowledge of the affiants which are admissible in evidence, and
should show their competence to testify to the matters stated
therein.

What should
information?

the

court

do

with

the

complaint

or

1. If commenced by complaint. On the basis of the

complaint and the affidavits and other evidence accompanying
the same, the court may dismiss outright for being patently
without basis or merit and order the release of the accused if in
custody.
2. If commenced by information. When the case is
commenced by information, or is not dismissed outright the
court should issue and order which, together with copies of the
affidavits and other evidence submitted by the prosecutor, shall
require the accused to submit his counter-affidavits and the
affidavits of his witnesses as will as any evidence I his behalf,
serving copies thereof on the complainant or prosecutor not
later than ten days from receipt of said order.
After the issues have been joined by the filing of
affidavits and counter-affidavits, the court shall consider
them together with the complaint or information, to
determine whether the accused should be arraigned or
not. If the court finds no cause or ground to held the
accused for trial, it shall order the case dismissed
otherwise it shall set the case for arraignment and
preliminary conference.
If the accused is in custody for the crime charged,
he shall be immediately arraigned, and if he pleads
guilty, he for the with be sentenced?
Supposed the accused pleaded Not Guilty, the court
shall set the case for preliminary conference, what are
the purposes of such conferences?
1. To consider stipulation of facts;
2. To allow the accused to plea bargain;
3. To consider such other matters as would clarify the
issues and to ensure speedy disposition of the case.
What condition should be observed to bind the accused
with the stipulated fact.

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To be binding and may used against the accused, his

admissions during the preliminary conference, the same should
be reduced in writing ands signed by the accused and his
counsel. But a refusal or failure to stipulate shall not prejudice
the accused.
Discuss the procedure of trial a criminal action governed
by the Rules of Summary Procedure.
1. The respective affidavits of the complaint and the
accused and their witnessed serve as their direct
testimonies upon which the cross examination by the
adverse party should be based. Redirect and recross
examination may be conducted.
2. If the affidavit fails to testify, his affidavit shall not be
considered competent for the party presenting such
affidavit.
3. But the adverse party may utilize the affidavit of the
affiant who fails to testify for any admissible purposes.
May a party present additional affidavit or counteraffidavits.
Yes. Should a party desire to present additional affidavits
or counter affidavits as part of his direct evidence, he must so
manifest during the preliminary conference, stating the purpose
thereof.
Should the court allow the submission of additional
affidavits or counter-affidavits, within what period must
such affidavit be submitted.
If allowed by the court, the additional affidavits or
counter affidavits should be submitted and served on the
adverse party within three days after the termination of the
preliminary conference.
But if it is the prosecution who prayed to be allowed to
submit additional affidavits, the defense may submit its counter
affidavit with 3 days from receipt of the prosecutions additional
affidavit.
May the court order the arrest of the accused.

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As a rule NO. But if required to appear but failed to do

so, the court order him to be arrested. However, he may
releases either on bail or on recognizance by a responsible
citizen acceptable to the court.
Within what period should the court promulgate its
judgement in a criminal action.
Where a trial has been conducted, the court shall
promulgate its judgement not later than thirty days after the
termination of the trial.
What motions or petitions are not allowed in first level
court taking cognizance of a criminal action under the
Rules on Summary Procedure.
1. Motion to quash the complaint or information except on
the ground of lack of jurisdiction over the subject matter
or failure to refer the case to the Barangay Court per
conciliation before filing in court.
2. Motion for a bill of particulars.
3. Motion for new trial, or for reconsideration, or for reopening trial.
4. Motion for extension of twice to file affidavits or any
other paper;
5. Memoranda;
6. Petition for certiorari, mandamus or prohibition against
interlocutory order issued by the court;
7. Motion for postponement.

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