Iñigo Notes in Criminal Procedure |1
BACKGROUND ON CRIMINAL emphasis on the government’s role. The
PROCEDURE
We will now go to Criminal Procedure proper.
Q: Define Criminal Procedure.
A: It is the method prescribed by law for the
apprehension and prosecution of persons
accused of any criminal offense and for their
punishment in case of conviction. (Clark’s
Criminal Procedure, p.1)
HISTORY OF CRIMINAL PROCEDURE IN THE
PHILIPPINES
Remember our criminal procedure is
patterned after the U.S. law. So let’s trace its
origin:
The first law on criminal procedure is General
Order No. 58 promulgated on April 23, 1900 by
Major General Otis of the U.S. Armed Forces.
That went on up to 1940 The Old Rules of Court.
After that is the 1964 Revised Rules of Court.
Next is the 1985 Rules of Criminal Procedure
which was amended 3 years later, and again
amended on 1991 (on Rule 114).
And finally the most thorough amendment
which took effect last December 1, 2000 – the
2000 Rules on Criminal Procedure. So that is now
the present law. I hope you have the copy. Do
they have already commercial? Wala pa? Ok. Ah!
That is the one prepared by the faculty during the
seminar where I talked (ehem!). Since you are
using it, meron man akong ibang kopya ba!
Malaki…ganyan o…direct from the Supreme
Court [idol jud nako si Dean!!!] and I have it book-
bound.
SYSTEMS OF PHILIPPINE CRIMINAL
PROCEDURE
There are generally two (2) systems of
criminal procedure:
1. Inquisitorial System; and
2. Accusatorial System.
Remember in a criminal case there are three
(3) parties:
1. state, through prosecutor;
2. accused; and
3. private victim.
Under the inquisitorial system, it is a
government show and the accused and the
private victim is only incidental. So there is more
accusatorial system on the other hand, holds a
different view… baliktad! The role or participation
of the State is secondary. We give more
importance on the right or role of the accused or
the private victim.
Q: Which of the 2 systems is recognized in
the Philippines?
A: Ours is a mixed system… so,
Hybrid/Mestizo [murag is Jet!] because the
features of both system are found in our law.
Q: What are some of the inquisitorial aspects
of our system of criminal procedure where the
emphasis is on the government’s role?
A: The following:
1. The prosecution of criminal cases is
largely controlled by the public
prosecutor. ‘Yong fiscal, siya man
ang may say bah…so, under the
direction or control of the fiscal or
prosecutor;
2. Preliminary investigation is required.
You cannot go to court and file it.
The fiscal will determine whether
to file it or not. Now can he
conduct a preliminary investigation
kung wala ang accused? Well, if
you are notified, ayaw mong
magbigay ng counter-affidavit,
then tuloy! Bahala ka dyan! Basta
ang importante ang role ng
government;
3. In case the accused is sentenced to
death, whether the accused likes it
or not, there will be a review of
death sentence because that is
what public interest says.
Q: What are some of the accusatorial aspects
of our system of criminal procedure where the
emphasis is on the role of the accused or the
offended party?
A: The following:
1. The accused is entitled to a public
trial. That is not for the benefit of
the government but that of the
accused;
2. It is the right of the accused to be
present at every stage of the
proceeding;
3. It is the right of the offended party to
intervene by hiring a private
prosecutor.
 Iñigo Notes in Criminal Procedure |2
LAW ON JURISDICTION IN CRIMINAL CASES
Before we take up the rules on criminal
procedure, we have to review the law on
jurisdiction. Just like in civil cases, we have to
know the jurisdiction of the different courts before
we take up the provisions.
Q: How do we define jurisdiction with
reference to criminal cases?
A: Jurisdiction in criminal cases has been
defined as the power and authority of a court to
take cognizance of an offense and to pronounce
the judgement or sentence provided by law after
a trial in the manner prescribed. (Albert, Law on
Criminal Procedure, p. 56)
Q: What are the elements of jurisdiction in
criminal cases:
A: The following:
1. Territorial jurisdiction;
2. Jurisdiction over the subject matter;
and
3. Jurisdiction over the person of the
accused.
First Element: TERRITORIAL JURISDICTION
In civil cases, the place is never considered
part of jurisdiction. It is only a question of venue –
that the case should be tried in Manila or Davao
is never considered as jurisdictional. But in
criminal procedure, the place where the trial is to
be heard is not only a question of venue but also
a question of jurisdiction. It is called territorial
jurisdiction.
Q: Define Territorial Jurisdiction.
A: Territorial jurisdiction refers to the limits of
the geographical boundaries of a place within
which a court has jurisdiction to act judicially and
outside of which its judicial acts are null and void.
(Mendoza vs. B.T. Co., 90 Phil. 804)
Q: How is territorial jurisdiction in criminal
cases determined?
A: The territorial jurisdiction of a court in
criminal cases is determined by the geographical
area over which it presides, and the fact that the
crime was committed, or any of its essential
ingredients took place, within said area is an
element of jurisdiction. (U.S. vs. Jueves, 23 Phil.
100)
The area of authority of said court is found in
Section 2 of the Interim Rules:
Section 2. Territorial
Jurisdiction of Courts –
Metropolitan Trial Courts,
Municipal Trial Courts, and
Municipal Circuit Trail Courts
shall exercise their jurisdiction
in the city, municipality or
circuit for which the judge
thereof is appointed or
designated. Thus, a judge
appointed to the municipality or
circuitized municipalities would
have jurisdiction over the said
place.
(a) Regional Trial Courts
shall exercise its jurisdiction
within the area defined by the
Supreme Court as the territory
over which the particular
branch concerned shall exercise
its authority, in accordance with
Section 18 of B.P. Blg. 129.
There is no problem with the MTCs and
MCTCs where the crime is committed there. Pero
yung RTC, it is not really the province because
the province can be split into several areas -
itong RTC branch na ito, dito ka. So it is the limit
of its authority as defined by the SC pursuant to
the Judiciary Law – the place or municipality
where the particular RTC branch exercises
jurisdiction. Every RTC branch has its own area
of responsibility.
Meaning, in one province there are many RTC
branches which are scattered. A branch in a
particular place will only exercise jurisdiction over
its designated territory, a small portion, not the
whole province. The territory is defined by the SC.
(Section 18, B.P. Blg. 129)
Second Element: JURISDICTION OVER
THE SUBJECT MATTER
Q: How is jurisdiction over the subject matter
in criminal cases determined?
A: It is determined by the allegations of the
complaint or information in accordance with the
law in force at the time of the institution of the
action, not at the time of the commission of the
offense. (U.S. vs. Mallari, 24 Phil. 366; People vs.
Pegarum, 58 Phil. 715)
EXAMPLE: At the time the crime is
committed, it was triable by the RTC, but when
the charge was filed in court, it is MTC na
 Iñigo Notes in Criminal Procedure |3
because the jurisdiction of the MTC was
increased.
Q: Saan ang sundin natin? RTC, which is the
law at the time the crime is committed? Or MTC,
which is the law at the time the case was filed?
A: Dun sa MTC. You follow the latter. This is
not a question of prejudice, this is purely
procedural. We are not talking here of a
retroactive effect of penal law where the law is
more favorable to the accused ‘no? This is just a
question of jurisdiction, not a question of law. So,
it is the law in force at the time of the filing of the
action is what determines the jurisdiction of the
court.
Q: To be more precise, how do we know
where the court has or no jurisdiction?
A: Essentially, it is determined by the penalty
provided by the law for the offense as that offense
is charged in the complaint or information.
(People vs. Pecson, 92 Phil. 172; Punzalan vs.
People, 99 Phil. 295)
Third Element: JURISDICTION OVER THE
PERSON OF THE ACCUSED
Q: How does the court acquire jurisdiction
over the person of the accused?
A: It is conferred upon the court either by the
voluntary appearance or surrender of the
accused, or by his arrest to answer for the crime
charged. (Choc vs. Vera, 64 Phil. 1066)
JURISDICTION OF PHILIPPINE COURTS
Let us now go over the jurisdiction of the
different courts in the Philippines. We will start
with the Supreme Court, and then down.
Remember that there are two (2) special courts
also authorized to try criminal cases: (1) the
Family Courts acting through RTCs, and (2) the
Sandiganbayan.
SUPREME COURT (SC)
Q: What criminal cases are within the
jurisdiction of the SC? Well, one of them are
cases affecting ambassadors, public ministers
and consuls. It is very rare. But let us concentrate
on the exclusive appellate jurisdiction of the SC in
criminal cases.
A: The following:
1. All criminal cases involving offenses for
which the penalty imposed by the trial
court is death, reclusion perpetua or life
imprisonment;
2. 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 as that giving rise to the more
serious offense, regardless of whether the
accused are charged as principals,
accomplices, or accessories, or whether
they have been tried jointly or separately.
EXAMPLE: Hannah is the principal,
accused of murder. Maying is the
accomplice and JJ is the accessory. All of
them are found guilty. For the principal,
sigurado perpetua ang pinakamababa
nyan – so SC ka!
How about the accomplice? Reclusion
Temporal man lang yan ba! And the
accessory? Prision Mayor. In order not to
split the jurisdiction, all of them will be
appealed to the SC.
3. Even if the penalty is less than reclusion
perpetua, death or life imprisonment,
where the issue on appeal is pure
question of law.
EXAMPLE: Suppose the crime is
homicide. The penalty imposed is
reclusion temporal – 20 years or less –
definitely sa Court of Appeals yan.
However, if the issue on appeal is purely
legal question lang - 100% legal, no
factual issue – SC yan. The mode of
appeal is Rule 45 – Appeal by Cetiorari.
COURT OF APPEALS (CA)
Let’s go to the CA. Simple: If a case does not
fall within the jurisdiction of the SC, then
necessarily it falls within the CA’s jurisdiction.
That is, the penalty imposed is less than perpetua
and the appeal is not purely a question of law; the
appeal either involves question of fact or mixed
question of law and fact.
REGIONAL TRIAL COURT (RTC)
Sec. 20. Jurisdiction in criminal
cases. - Regional Trial Courts
shall exercise exclusive original
jurisdiction in all criminal cases
not within the exclusive
jurisdiction of any court,
tribunal or body, except those
now falling under the exclusive
and concurrent jurisdiction of
the Sandiganbayan which shall
 Iñigo Notes in Criminal Procedure |4

hereafter be exclusively taken property through criminal

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

MUNICIPAL TRIAL COURT (MTC) When the prescribed penalty is below six (6)
years or kung prision correctional and down, puro
Q: What law governing the jurisdiction of the MTC lahat yan. Everything above six (6) years,
MTC? RTC ang jurisdiction.
A: Section 32, BP 129, as amended by RA
7691. RA 7691 is the law expanding the Q: Suppose if the penalty prescribed is
jurisdiction of the MTC which took effect last April imprisonment, fine or both?
05, 1994. A: Never mind the fine and the both. Just look
at the imprisonment. That is the innovation by the
Sec. 32. Jurisdiction of new rules. The fine is never considered in
Metropolitan Trial Courts, determining the jurisdiction. All you have to do is
Municipal Trial Courts and look at the imprisonment, i.e. above six (6) years
Municipal Circuit Trial courts in – RTC; six (6) years and below – MTC.
criminal cases. - Except in cases
falling within the exclusive RTC JURISDICTION: Above six (6) years,
original jurisdiction of Regional regardless fine
Trial Courts and of the MTC JURISDICTION: Six (6) years and
Sandiganbayan, the below, regardless of fine
Metropolitan Trial Courts,
Municipal Trial Courts, and Q: Suppose the penalty prescribed by law is
Municipal Circuit Trial Courts 100% fine? There are crimes na walang
shall exercise: imprisonment eh where the prescribed penalty is
1. Exclusive original only fine. What will happen?
jurisdiction over all violations of A: Under the SC Circular 04-94, if the penalty
city or municipal ordinances is imprisonment and fine, or imprisonment or
committed within their fine, never mind the fine and concentrate on the
respective territorial imprisonment. But if the penalty prescribed is
jurisdiction; and purely fine, apply the old law before RA 7691: it
2. Exclusive original depends on the amount prescribed by law. Under
jurisdiction over all offenses the old law, if the maximum fine is P4,000 or less
punishable with imprisonment – MTC yan. If the penalty prescribed by law is
of not exceeding six (6) years purely fine and above P4,000 – RTC yan.
irrespective of the amount of
fine, and regardless of other Where the prescribed by law is purely fine:
imposable accessory or other
penalties, including the civil MTC – P4,000 or less
liability arising from such RTC – above P4,000
offenses or predicated thereon,
irrespective of kind, nature, However, the exception to the exception is
value or amount thereof; when the crime is damage to property, like
Provided, however, That in reckless imprudence, because in the crime of
offense involving damage to damage to property through criminal negligence
 Iñigo Notes in Criminal Procedure |5
the penalty is only fine, wala yang imprisonment
under the RPC and the fine is equal to the
damage or not more than three (3) times the
amount of the damage.
EXAMPLE: You bumped a car and you wreck
it. The car is worth P100,000. Ano ang penalty?
The minimum fine is P100,000 – equal to the
value of the damage – and the maximum is
P300,000 (three times the value of the damage,
Article 365, RPC). So the fine could range from
P100,000 to P300,000.
Q: Sa RTC na ba yan because it is above
P4,000?
A: No! Basta damage to property through
reckless imprudence, automatically it is the MTC
regardless of the amount of fine. The P4,000 is
only for crimes other than damage to property
through reckless imprudence.
Outline of the jurisdiction of the MTC and RTC
over criminal cases:
RTC:
1. when the prescribed penalty for the
offense is imprisonment exceeding six
(6) years irrespective of the amount of
the imposable fine;
2. when the prescribed penalty for the
offense is fine only and the
imposable fine exceeds P4,000.
MTC:
1. all violations of city or municipal
ordinances committed within their
respective territorial jurisdiction;
2. all offenses punishable with
imprisonment of not exceeding six (6)
years irrespective of the amount of the
imposable fine;
3. when the prescribed penalty is fine
only and the imposable amount does
not exceed P4,000;
4. when the offense involves damage to
property through criminal negligence
irrespective of the amount of the
imposable fine.
Take note, jurisdiction is determined by the
principal penalty not by the civil liability, additional
penalty or the subsidiary penalty, which changed
the previous rules under the old jurisprudence.
Under the old jurisprudence in the old case of
U.S. vs. Bernardo, the SC ruled that the penalty
for simple seduction is only arresto mayor [not
more than 6 months]. It cannot be tried by the old
MTC. It should only be tried by the CFI (now,
RTC) because under Article 345 of the RPC, in
the event that the accused is convicted there be a
judgment for support and the acknowledgment of
the child which can only be decreed by the CFI.
So what determines the jurisdiction of the court is
not the criminal penalty by the civil liability.
Pero bahaw na yan!! Those pronouncements
are already obsolete. Now, never mind the civil
liability. So, in simple seduction [below 6 months],
the MTC can order for the support and
acknowledgment of the child because that is only
incidental. What is important is six (6) months
lang ang penalty.
CASE: Suppose Sir Jet is convicted of less
serious physical injuries for the 6th time within a
period of 10 years only. The penalty for such
crime is only arresto mayor – six (6) months
maximum. But since Sir Jet is already a habitual
delinquent, may patong na yan where the penalty
can reach as high as 6 months to 14 years and 8
months.
Q: Where are you going to file the case?
A: That is what happened in the case of
People vs. Custoso where the SC held that the
case should be file din the RTC because you
consider the principal plus the additional penalty.
But this doctrine is already obsolete. Under the
present law RA 7691, we do not consider the
additional penalty, only the principal penalty.
Since less serious physical injuries is punishable
by arresto mayor only, it should be filed in the
MTC.
Take note the opening clause of Section 32:
Except in cases falling within the exclusive
original jurisdiction of Regional Trial Courts and of
the Sandiganbayan. In other words, if the crime
has a penalty of six (6) years or lower, dapat
talaga MTC. It cannot be tried by the MTC if the
law says it is falling within the exclusive original
jurisdiction of the RTC or the Sandiganbayan [if
the law itself ba!].
If the law says this case shall be tried with the
RTC, sundin mo yan and never mind the penalty
because the law specifically provides in what
court you should file it. Even if the penalty is one
(1) month imprisonment, pag-sinabi ng law
“RTC”, you follow it.
Q: Give instances of this exception. In what
cases will the RTC will try the case even if the
penalty is only six (6) years or less?
A: There are four (4) instances as laid down
by the SC in cases of MORALES VS. CA, 283
SCRA 211 (1997) and COMELEC vs. NHOYNAY
, 292 SCRA 254 (1998):
 Iñigo Notes in Criminal Procedure |6
1. Libel – Klaro sa Article 360, RPC na RTC,
pero if you look at the penalty for libel,
hindi man makaabot ng six (6) years ba!
Article 360 prevails.
2. The Decree on Intellectual Property.
Criminal cases for the violation of the
Decree on Intellectual Property – mga
trademarks yan.
3. The Dangerous Drugs Act. Basta
Dangerous Drugs, automatic RTC yan
even if the penalty is prision correcional
lang.
4. Violation of the Omnibus Election Code –
Criminal cases arising from the violations
of the Omnibus Election Code is with the
RTC even if the penalty is below six (6)
years and one (1) day (Comelec vs.
Nhoynay)
FAMILY COURTS
Q: What criminal cases are falling within the
original jurisdiction of the Family Courts under RA
8369 – An Act Establishing Family Courts?
A: The following under Section 5, RA 8369:
1. Criminal cases where one or more of the
accused is below 18 years of age but not
less than nine (9) years of age, or one or
more of the victims is a minor at the time
of the commission of the offense.
So for example: 10 years old na
bata, sinuntok mo – slight physical
injuries – sa Family Courts yan. Hindi
yan pwede sa MTC because
regardless of the penalty basta below
18 years old siya, Family Courts yan
whether he is the accused or the
offended party.
2. Criminal cases against minors under the
Dangerous Drugs Act; and
3. Violations of RA 7610 – the famous child
Abuse Law – as amended by RA 7658.
But since the Family Courts have not yet been
constituted, the temporary measure is some RTC
branches were designated as acting as Family
Courts. Here in Davao, the salas of Judge Breva
and Judge Archangel are designated as Family
Courts. Temporary set-up lang yan. They are still
RTC but acting as Family Courts.
SANDIGANBAYAN
The most confusing is the jurisdiction of the
Sandiganbayan. Everyone is always confused
with this Sandiganbayan. It is the most
controversial.
How do you know that the case is to be tried
by the Sandiganbayan or by the regular courts? It
does not mean naman that all crimes committed
by a public officer must be with the
Sandiganbayan. It could be with the
Sandiganbayan or it could be with the RTC or
MTC. If you know the jurisdiction of the RTC or
MTC, there is no problem. Above six (6) years –
RTC; below six (6) years – MTC.
But the problem is whether it is with the
Sandiganbayan or the regular courts, because for
the Sandiganbayan, doon, regardless of the
penalty na naman. Even if the penalty is above
six (6) years or six (6) years and below, if it is
triable before the Sandiganbayan, you go there.
Forget the penalty. That is where there is some
confusion. Maraming naguguluhan!
Q: What is the guideline in determining the
jurisdiction of the Sandiganbayan?
A: The latest governing law is RA 8249
approved on February 05, 1997. This is what it
requires:
1. What kind of position in t he
government does he hold or occupy?
2. What criminal cases was committed by
him?
WHAT KIND OF POSITION IN THE
GOVERNMENT DOES HE HOLD OR OCCUPY?
Sino ba itong taong ito? – if he is a governor,
vice-governor, member of the sanggunian,
provincial treasure, assessor, engineers and
other provincial department head, city mayor, vice
mayor, members of the sanggunian panglungsod,
city treasurer, assessor, engineer, other city
department heads, official of the diplomatic
service occupying the position of consul and
higher, Philippine army and air force, colonels
and naval captains and all officers of higher rank,
officers of the PNP while occupying the position
of provincial directors and those holding the rank
of Senior Superintendent or higher, city and
provincial prosecutors and their assistant, and
officials and prosecutors of the Office of the
Ombudsman and special prosecutor, presidents,
directors or trustees or managers of GOCCs,
state universities or educational institutions or
 Iñigo Notes in Criminal Procedure |7
foundations; members of Congress; members of
the Constitutional Commission without prejudice
to the provisions of the Constitution; [ito ang
pinakamaganda:] all other national and local
officials classified as Grade 27 and higher.
Those specified positions or even if you are
just an ordinary employee but you are Grade 27
or higher coupled with Anti-Graft crime or crime
committed in relation to your office –
Sandiganbayan yan, forget the penalty.
If he is below Grade 27 and the crime is anti-
graft or a crime committed in relation to his office,
then it is not Sandiganbayan. It is either RTC or
MTC. Tingnan mo lang ang Grade. That is the
cue. Madali man lang ba: you just correlate the
nature of the crime and the nature of the position.
WHAT CRIMINAL CASE WAS COMMITTED
BY HIM?
When it comes to criminal cases, dalawa (2)
lang yan eh: Anti-Graft cases or violation of RA
1379 [Forfeiture of an illegally acquired property].
But more or less Anti-Graft would be a better
example since anyway majority of the cases falls
there.
Q: How about those in the RPC?
A: Find out whether the crime was committed
by the public officer in relation to his office. Yan
muna ang babantayan mo.
If it is outside of those two [anti-graft or not
anti-graft but the crime is committed in relation to
his office], wala na, forget the Sandiganbayan.
What do you mean by “crime committed in
relation to the office of the person accused”? In
the case of
PEOPLE vs. MONTEJO
108 Phil. 652
FACTS: This is a case for murder
filed against the former Mayor Leroy
Brown of Basilan City together with
some Basilan policeman. Brown
ordered his men to arrest the suspect
and he was interrogated. It is in the
course of the investigation or
interrogation that they committed the
crime of murder.
ISSUE: Was the crime of murder
committed in relation to his office?
HELD: Yes. In other words, if they
were not public officers they would not
have succeeded in committing the
crime. “Although public office is not an
element of the crime of murder in
abstract, as committed by the main
respondents herein, according to the
amended information, the offense
therein charged is intimately
connected with their respective offices
and was perpetrated while they were
in the performance, though improper
or irregular, of their official functions.
Indeed, they had no personal motive
to commit the crime and they would
not have committed it had they not
held their aforesaid offices. The co-
defendants of respondent Leroy S.
Brown, obeyed his instructions
because he was their superior officer,
as Mayor of Basilan City.”
Of course, normally when you say in relation
to his office… mga falsification or malversaton…
yan, talagang klaro. That is the normal meaning.
That is why in the 1995 case of CUNANAN VS.
ARCEO, 242 SCRA, the SC held that an offense
may be considered as committed in relation to the
accused's office if the offense cannot exist without
the office such that the office is a constituent
element of the crime. Let us try to compare this in
the case of
SANCHEZ vs. DEMETRIOU
207 SCRA 627
FACTS: Mayor Sanchez of
Calauan was charged with rape and
homicide for the deaths of Aileen
Sarmenta and Allan Gomez. They
were charged before the RTC.
Sanchez questioned the jurisdiction of
the RTC that since he is an incumbent
mayor at the time of the alleged
commission of the crime, his case
should be tried before the
Sandiganbayan.
ISSUE: Whether or not the RTC
has jurisdiction over the case.
HELD: Yes. The case should be
tried by the RTC and not
Sandiganbayan. The case of Sanchez
 Iñigo Notes in Criminal Procedure |8
was not considered in relation to their
office.
“There is no direct relation
between the commission of the crime
of rape with homicide and Sanchez’
office as municipal mayor because
public office is not an essential
element of the crime charged. The
offense can stand independently of the
office. Moreover, it is not even alleged
in the information that the commission
of the crime charged was intimately
connected with the performance of
Sanchez’ official functions to make it
fall under the exception laid down in
People vs. Montejo.”
“In that case of People vs.
Montejo, a city mayor and several
detectives were charged with murder
for the death of a suspect as a result
of a ‘third degree’ investigation held at
a police substation. The Supreme
Court held that even if their position
was not an essential ingredient of the
offense, there was nevertheless an
intimate connection between the office
and the offense, as alleged in the
information, that brought it within the
definition of an offense ‘committed in
relation to the public office.’ Indeed,
they had no personal motive to commit
the crime and they would not have
committed it had they not held their
aforesaid offices.
“We have read the informations in
the case at bar and find no allegation
therein that the crime of rape with
homicide imputed to Sanchez was
connected with the discharge of his
functions as municipal mayor or that
there is an ‘intimate connection’
between the offense and his office. It
follows that the said crime, being an
ordinary offense, is triable by the
regular courts and not the
Sandiganbayan.”
LACSON vs. EXECUTIVE
SECRETARY
301 SCRA 298 (1999)
HELD: It is not enough to say that
the crime committed is in relation to
his office. You must make specific
allegations to show really the
connection. Otherwise, it will not be
tried by the Sandiganbayan but by the
regular courts.
“While the information states that
the above-name principal accused
committed the crime of murder ‘in
relation to their public office’ there is,
however, no specific allegation of facts
that the shooting of the victim by the
said principal accused was intimately
related to the discharge of their official
duties as police officers. Likewise, the
amended information does not indicate
that the accused arrested and
investigated the innocent victim and
killed the latter while in their custody.”
Dapat: nahuli…nag-imbestiga…tapos,
pinatay – yun, ma-consider pa! Pero
pag-sinabi mo na they killed him in
relation to their office, without further
explanation – wala! It becomes merely
a conclusion lang ba.
“The mere allegation in the
information that the offense was
committed by the accused public
officer in relation to his office is not
sufficient – the phrase is merely a
conclusion of law, not a factual
averment that would show the close
intimacy between the offense charged
and the discharge of the accused’s
official duties.”
“In the case of People vs. Montejo,
it is noteworthy that the phrase
‘committed in connection to his public
office’ does not also appear in the
information, which only signifies that
the said phrase is not what determine
the jurisdiction of Sandiganbayan.
What is controlling is the specific
factual allegations in the information
that would indicate the close intimacy
between the discharge of the
accused’s official duties and the
commission of the offense charged, in
order to qualify the crime as having
been committed in relation to his
public office.”
Q: The offender is a public officer and in
committing the crime, he took advantage of his
position. Ano yan? Is that a sufficient allegation
that the crime is committed in relation to the
office?
A: NO! It does not carry the same meaning.
When you say that the public officer took
advantage of his position, that is only an
allegation of an aggravating circumstance under
 Iñigo Notes in Criminal Procedure |9
Article 14, RPC. (People vs. Magallanes, 249
SCRA 212)
Now, there are instances where there could
also be a conflict between the Sandiganbayan
jurisdiction and that of the regular courts. This is
were we follow the general rules on statutory
construction that special law prevails over a
general law; a specific provision prevails over a
general provision.
Such principle is applied in the case of De
Jesus vs. People (1983), reiterated in the case of
Corpuz vs. Tanodbayan (1987). These cases
were decided under the 1973 Constitution. But
actually, the doctrine still applies now.
CORPUZ vs. TANODBAYAN
April 15, 1987
NOTE: This Corpuz case was
asked in the Bar, not in remedial law
but in political law because it has
something to do with the COMELEC.
FACTS: The accused here is a
Comelec registrar who allowed the
registration of voters outside of the
registration day… bawal man yan ba.
So there was a violation of the Election
Code. He committed a crime in
relation to his office. For that, he was
charged before the Sandiganbayan
under the 1973 Constitution. Now, he
challenged the jurisdiction of the
Sandiganbayan to try the case and
also the jurisdiction of the former
Tanodbayan which is now the
Ombudsman.
Under the Election Code,
violations of election code committed
by public officers in relation to their
office are supposed to be tried by the
RTC. It is a direct provision in the code
– RTC eh! And the preliminary
investigation should be conducted by
the Comelec under the election code.
And of course the prosecution
said: “No! Under the law, when the
crime is committed by a public officer
in relation to his office, it should be the
Sandiganbayan, not the regular
courts.” Pero sabi ng accused: “Under
the election code, it should be the
RTC!” Ngayon, sino ngayon mag-
prevail dyan?
HELD: The election code prevails
because there is a specific provision
which is: crimes under the election
code. Whereas the provisions of the
Sandiganbayan is broader: crimes
committed by public officers in relation
to their duty. That applies to public
officers in general. So the specific
provision prevails over the general
provision.
Another interesting point about the
Sandiganbayan is that the Sandiganbayan law
says that where a private individual commits a
crime in conspiracy with a public officer, all of
them should be tried in the Sandiganbayan. So
‘yung isa, nasabit no? Nasabit yung private
individual. He is not even in the government bakit
pati siya i-try sa Sandiganbayan? Because may
conspiracy. There should be a joint trial.
So you cannot say that the public officer
should be tried in the Sandiganbayan and the
private individual should be tried in the RTC. Di
pwede yan. You cannot split the jurisdiction.
Q: What is the reason why the private
individual should be tried together with the public
officers in the Sandiganbayan?
A: The SC explained in the following manner:
“Private persons may be charged together with
public officers to avoid repeated and unnecessary
presentation of witnesses and exhibits against
conspirators in different venues, especially if the
issues involved are the same.” (Balmadrid vs.
Sandiganbayan, March 22, 1991)
Let’s go to some interesting cases on the
jurisdiction of the Sandiganbayan over private
individuals:
BONDOC vs. SANDIGANBAYAN
November 9, 1990
FACTS: This case involves
quieting(?) operations (manuevers sa
mga tseke) between Central Bank (a
government institution, now Bangko
Sentral ng Pilipinas) employees
allegedly in connivance with Carlito
Bondoc, an assistant manager of a
private bank. Now, two (2) CB
employees were charged with several
counts of estafa through falsification of
public documents because of their
manipulations of the checks. I think
what they did maybe something similar
to what Estrada did no? Of course
they were charged with the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 10
Sandiganbayan and the cases were
assigned in the Second Division of the
Sandiganbayan.
Subsequently after further
investigation, another information was
filed against Bondoc as principal by
indispensable cooperation and he was
also in conspiracy, so f-in-ile sa
Sandiganbayan. His case was raffled
to the Third Division. When the Third
Division learned that this is related to
the case against the two (2) CB
employees in the Second Division,
pinasa sa 2nd Division for
consolidation. However, tapos na pala
ang trial dun (2nd Division). So the
2nd Division returned the case of
Bondoc to the 3rd Division.
So naiwan na si Bondoc. Now he
questions the jurisdiction of the
Sandiganbyan: How could the
Sandiganbayan try me alone when in
fact I should be tried jointly with the 2
CB employees. Eh tapos na sila! So
my case should be tried in the RTC.
HELD: “The law requires that the
private individuals accused before the
Sandiganbayan should be tried
together jointly with the public officer.
That is really true unless the attendant
circumstances have made impossible
or impracticable such a joint trial, in
which event the trial of said private
persons may proceed separately from
the public officers or employees whose
own trials have been concluded.”
“Besides, there is nothing so
sacred or important about a joint trial
as to justify a radical deviation from
ordinary, orderly court processes in
order to have it, or as to affect the very
jurisdiction of the Court required to
conduct it. The evidence of the State
or of the accused does not become
weaker or stronger whether presented
at a joint or separate trial; the rights of
the accused are not enhanced or
diluted by the character of a trial as
joint or separate; the procedure
prescribed in either situation is
essentially the same.”
So joint trial is possible kung pwede pa. Eh
kung wala na? Eh di maiwan ka na lang dyan!
Now, sabihin mo: “No! No! the the law says ‘joint
trial!’ I should not be tried alone.” The SC in the
case of Bondoc said: Teka muna, do you have an
advantage in joint trial? Or when tried alone? Or
you are tried together with another person? Does
joint trial make your job easier or harder? Makes
conviction easier? Wala man bah! Pareho man
lang yan!
So meaning, you cannot insist on a joint trial if
that is no longer feasible. But as far as the law is
concerned, since you committed the crime in
conspiracy with these public officers, you remain
in the Sandiganbayan. So in that case (Bondoc),
mag-isa lang siya and his trial continued in the
Sandiganbayan.
AZARCON vs. SANDIGANBAYAN
268 SCRA 747 (February 26, 1997)
FACTS: I think this case happened
in Bislig. Azarcon here leased a truck
of somebody for logging operations.
The owner of the truck was a
delinquent taxpayer pala. So the
Bureau of Internal Revenue (BIR)
issued this warrant of distraint. The
BIR looked for the truck which is quite
an item which worthwhile: “This truck
is hereby considered as under the
possession of the BIR. Now since you
(Azarcon) are the one leasing, okey
lang, ituloy mo but you are now the
custodian. You are now holding it in
behalf of the BIR.”
After the lease, he returned the
truck to the lessor (taxpayer).
Obviously, nawala nga ang truck. So
hinabol na si Azarcon ng BIR: “Ba’t mo
sinauli? That is under distraint already
and that is malversation!” Under the
RPC, the crime of malversation may
be committed by a public officer, by a
private individual who is entrusted with
the custody of a property which has
been levied by the government (Article
222, RPC)”
So, f-in-ile-an sya ng kaso sa
Sandiganbayan… malversation eh! He
now questions the jurisdiction of the
Sandiganbayan: I am not a public
officer. If you want to sue me, you sue
me in the regular courts, not here in
the Sandiganbayan!
ISSUE: Does the Sandiganbayan
have the jurisdiction over a private
individual who is charged with
malversation of public funds or
property as a principal after the said
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 11
individual has been designated by the
BIR as custodian of a restrained
property? Did such accused become a
public officer and therefore subject to
the Sandiganbayan jurisdiction as a
consequence of such designation?
HELD: No. The Sandiganbayan
does not have the jurisdiction over
him. The law equivocally specifies:
“…the only instances when the
Sandiganbayan will have jurisdiction
over a private individual, i.e. when the
complaint charges the private
individual either as a co-principal,
accomplice or accessory of a public
officer or employee who has been
charged with a crime within its
jurisdiction.
The Information does not charge
petitioner Azarcon of being a co-
principal, accomplice or accessory to a
public officer committing an offense
under the Sandiganbayan's
jurisdiction. Thus, unless petitioner be
proven a public officer, the
Sandiganbayan will have no
jurisdiction over the crime charged.
“Granting arguendo that the
petitioner, in signing the receipt for the
truck constructively distrained by the
BIR, commenced to take part in an
activity constituting public functions, he
obviously may not be deemed
authorized by popular election. The
next logical query is whether
petitioner's designation by the BIR as
a custodian of distrained property
qualifies as appointment by direct
provision of law, or by competent
authority. We answer in the negative.
“However, we find no provision in
the NIRC constituting such person a
public officer by reason of such
requirement. The BIR's power
authorizing a private individual to act
as a depositary cannot be stretched to
include the power to appoint him as a
public officer. The prosecution argues
that "Article 222 of the Revised Penal
Code . . . defines the individuals
covered by the term 'officers' under
Article 217 . . ." of the same Code.
And accordingly, since Azarcon
became a "depository of the truck
seized by the BIR" he also became a
public officer who can be prosecuted
under Article 217 . . .”
“We are not persuaded. The
language of the foregoing provision is
clear. A private individual who has in
his charge any of the public funds or
property enumerated therein and
commits any of the acts defined in any
of the provisions of Chapter Four, Title
Seven of the RPC, should likewise be
penalized with the same penalty
meted to erring public officers.
Nowhere in this provision is it
expressed or implied that a private
individual falling under said Article 222
is to be deemed a public officer.”
What it says is, you can be charged for
malversation. That’s all. But he is still a private
individual and therefore he cannot be tried alone
in the Sandiganbayan.
Q: Under the present law, anti-graft or crimes
committed by public officers below Grade 27,
RTC man yan ba! Now, suppose you are
convicted by the RTC, where will you appeal?
A: Sandiganbayan. It becomes the appellate
court.
Q: Eh halimbawa, MTC? The case is tried by
the MTC because the penalty is up to 6 years
only. Convicted ka, where will you appeal?
A: RTC, in accordance with the judiciary law.
Q: From the RTC, convicted pa rin! Where will
you appeal?
A: Petition for Review before the
Sandiganbayan. Do not go to CA. The
Sandiganbayan takes the place of the CA.
And take note, Sandiganbayan is now given
the exclusive original jurisdiction over petition for
issuance of writ of mandamus, prohibition,
certiorari, habeas corpus, injunction and other
auxiliary writs and processes in aid of its
appellate jurisdiction. Ayan! “in aid”… yan ang
importante dyan.
Rule 110
PROSECUTION OF
OFFENSES
Q: How are criminal cases or actions
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 12

instituted? new rules, some cases triable by the MTC may

A: Section 1, Rule 110. also require preliminary investigation.

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

of criminal actions.– kailangan may preliminary investigation yan.
Criminal actions shall be Under Section 1, from the moment you file a
instituted as follows: complaint with the proper officer for the purpose
(a) For offenses where of conducting a preliminary investigation, it is
a preliminary already institution.
investigation is required
pursuant to section 1 of Q: Who are these officers referred to?
Rule 112, by filing the A: They are mentioned in Section 2, Rule 112:
complaint with the proper
officer for the purpose of SEC. 2. Officers
conducting the requisite authorized to conduct
preliminary investigation. preliminary
(b) For all other investigations. –
offenses, by filing the The following may
complaint or information conduct preliminary
directly with the investigations:
Municipal Trial Courts and (a) Provincial or City
Municipal Circuit Trial Prosecutors and their
Courts, or the complaint assistants;
with the office of the (b) Judges of the
prosecutor. In Manila and Municipal Trial Courts and
other chartered cities, Municipal Circuit Trial
the complaints shall be Courts;
filed with the office of (c) National and
the prosecutor unless Regional State
otherwise provided in Prosecutors; and
their charters. (d) Other officers as
The institution of the may be authorized by law.
criminal action shall Their authority to
interrupt the running of conduct preliminary
the period of prescription investigations shall
of the offense charged include all crimes
unless otherwise provided cognizable by the proper
in special laws. (1a) court in their respective
territorial jurisdictions.
The language has been changed no? If you (2a)
try to compare it with the old Rules, merong major
changes, meron man ding pareho. The language Q: How about those other offenses which DO
is now simplier. NOT require preliminary investigation?
A: Under the new rules, yung below 4 years
Q: Is there a difference between and 2 months ang penalty – they are triable by
commencement of criminal action and institution the MTC. (If the penalty is 4 years, 2 months
of criminal action? and 1 day, it requires preliminary investigation.)
A: Yes. When you say “commencement”,
generally it is already in the court once it is filed in Q: How do you institute them? Like slight
court. But “institution” is earlier. When you file a physical injuries…
complaint with the fiscal’s office, it is already an A: You have two (2) options:
institution. 1. File a complaint with the prosecutor’s
office in the city or provincial who will
Q: Is preliminary investigation required in all now file the case in court; or
criminal cases? Because there are some criminal 2. Kung gusto mo, direct filing. You can
cases which do not require preliminary file the complaint directly to the MTC.
investigation. Like sa munisipyo, police man ang
A: Generally, all RTC cases require mag-file ba.
preliminary investigation. But right now under the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 13
However in Davao City we do not see that
because under the rules, in Metro Manila and
other chartered cities, the complaint shall always
be filed with the office of the prosecutor unless
the charter of the city provides otherwise.
So again, the complaint can be filed either in
the MTC in the province or office of the fiscal
merely for preliminary investigation. Unlike in
chartered cities na puro fiscals lang ang
authorized to conduct preliminary investigation.
For example: Murder, the police can file a
complaint for murder before the MTC of Sta.
Cruz, Davao del Sur. That is not for trial but only
for preliminary investigation because the MTC of
Sta. Cruz has no power to try a murder case.
The institution of the
criminal action shall
interrupt the running of
the period of prescription
of the offense charged
unless otherwise provided
in special laws. (last
paragraph, Section 1, Rule
110)
QUESTION: Does the filing of the complaint
with the prosecutor’s office interrupt the running
of the prescriptive period of the crime?
In the old case of People vs. del Rosario
(1964), SC: No. When a complaint is filed in the
municipal court only for the purpose of preliminary
investigation, it does not interrupt the running of
the prescriptive period. What interrupts is the
filing of the complaint in court which has
jurisdiction to try the case.
That is reiterated 3 years later in the case of
People vs. Coquia. The SC modified it in the case
of People vs. Olarte where a complaint for murder
is filed in the MTC for preliminary investigation.
The issue is: Is the running of the prescriptive
period interrupted? SC: Yes, abandoning the
case of Coquia and del Rosario. Why? Because
the Penal Code says, the filing of the complaint
interrupt the running of the prescriptive period.
Article 91 of the RPC does not distinguish
whether the filing is for trial or merely for
preliminary investigation. However the SC said
here, the complaint is filed in court for preliminary
investigation. If it is filed in the fiscal’s office also
for preliminary investigation, Hindi [does not
interrupt]!! “Court” not “Fiscal”. That is the original
ruling.
However in 1983 in the case of Francisco vs.
CA, the SC made it total na: the filing of the
complaint whether in the MTC or the fiscal’s office
for preliminary investigation is sufficient to
interrupt the running of the prescriptive period.
However, in 1985 when the rules were revised,
the SC rejected the ruling in the Francisco case:
the filing of the complaint in the fiscal’s office
does not interrupt the running of the prescriptive
period. But in 1988, in-amend na naman ang
rules: the filing of the complaint in the fiscal’s
office is sufficient to interrupt the running of the
prescriptive period.
And here comes the 1992 case of Zaldivia vs.
Reyes Sr. (211 SCRA 277) which was a criminal
case covered by the Summary Rules.
ZALDIVIA vs. REYES SR.
211 SCRA 277
FACTS: It was a violation of a
municipal ordinance. Arresto Menor
lang yan e. F-in-ile sa fiscal’s office.
The fiscal is relaxed because
according to him: the filing of the case
with the fiscal’s office is sufficient to
interrupt the running of the prescriptive
period. So, relax siya… he took his
time.
F-in-ile niya (fiscal) sa court after 3
months. Pag-file niya, motion to
quash: “Prescribed!” Fiscal: “Hindee!
When the case is filed with the fiscal’s
office, the running of prescriptive
period is interrupted!”
HELD: You (fiscal) are wrong. The
filing of this case before your office did
not interrupt the running of the
prescriptive period. You should have
filed that on time before the court.
REASON: You look at the first
paragraph of Section 1 (1988 Rules):
“in cases not covered by the Rules of
Summary Procedure…” So, that rule
only applies in cases not covered by
the Summary Rules. But the case at
bar is covered by the Summary Rules
precisely because it is only arresto
menor.
Therefore, when the case is covered by the
Rules of Summary Procedure, the filing of the
case with the fiscal’s office does not interrupt the
running of the prescriptive period (Zaldivia vs.
Reyes, Jr, 211 SCRA 277). It should be the filing
of the case before the court which will interrupt.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 14
So, klaro yan until the 1998 case of
REODICA vs. COURT OF APPEALS
292 SCRA 87, Davide, Jr. J.
(choy!)
FACTS: The charge here was
slight physical injuries through
reckless imprudence which is actually
punishable by arresto menor. It was
filed with the fiscal’s office within 2
months but it was filed in the court
beyond 2 months. And definitely, it is
covered by the Summary Procedure.
In Zaldivia case, the filing in the fiscal’s
office interrupts the running of the
prescriptive period.
NOTE: Remember, the case of
Zaldivia involved a violation of an
ordinance.
HELD: But in the case at bar, this
is a felony under the Penal Code.
[Dean I: Ginawan pa ng distinction!] If
it is a felony, the filing with the fiscal’s
office is sufficient to interrupt the
running of the prescriptive period even
if it is covered by the Summary Rules.
But, if it is a light offense punished by
a special law like an ordinance and
therefore covered by the Summary
Rules, then the filing in the fiscal’s
office does not interrupt the running of
the prescriptive period.
So I start to wonder: Saan ba nanggaling
‘yung distinction na ‘yun? The SC cited Act 3326
which is the law governing prescription of crimes
punished by special laws. Whereas, Article 90 of
the RPC refers to prescription of felonies under
the Penal Code. And under Act 3326, it is very
clear that the prescription period for the crime
(punished by a special law) is interrupted only
upon judicial proceeding – filing in the court.
Ayun pala! Akala ko the Zaldivia case settled
the rule after all. Meron pa palang Reodica.
The SC said: The revised rules of Summary
Procedure “cannot be taken to mean that the
prescriptive period is interrupted only by the filing
of a complaint or information directly with said
courts. It must be stressed that prescription in
criminal cases is a matter of substantive law.
Pursuant to Section 5(5), Article VIII of the
Constitution, this Court, in the exercise of its rule-
making power, is not allowed to diminish,
increase or modify substantive rights. Hence, in
case of conflict between the Rule on Summary
Procedure promulgated by this Court and the
Revised Penal Code, the latter prevails.”
(Reodica vs. CA, supra)
Yan! When I was reading this case, I said,
what happened to Zaldivia case? Was it
reversed? SC: No! No! We never reversed
Zaldivia. “Neither does Zaldivia control in this
instance. It must be recalled that what was
involved therein was a violation of a municipal
ordinance; thus, the applicable law was not Article
91 of the Revised Penal Code, but Act. No. 3326,
x x x x x Under, Section 2 thereof, the period of
prescription is suspended only when judicial
proceedings are instituted against the guilty party.
Accordingly, this Court held that the prescriptive
period was not interrupted by the filing of the
complaint with the Office of the Provincial
Prosecutor, as such did not constitute a judicial
proceeding; what could have tolled the
prescriptive period there was only the filing of the
information in the proper court. In the instant
case, as the offenses involved are covered by the
Revised Penal Code, Article 91 thereof and the
rulings in Francisco and Cuaresma apply. Thus,
the prescriptive period for the quasi offenses in
question was interrupted by the filing of the
complaint with the fiscal's office three days after
the vehicular mishap and remained tolled pending
the termination of this case. We cannot, therefore,
uphold petitioner's defense of prescription of the
offenses charged in the information in this case”
(Reodica vs. CA, supra).
Yan! And I think the Reodica case is now
incorporated in the new rules. You read the last
paragraph of Section 5, Rule 110:
“The prosecution for
violation of special laws
shall be governed by the
provision thereof. (n)”
It is an entirely new sentence. Tama man yan
ba: The prosecution for violation of special laws
shall be governed by the provision thereof. I think
that’s the Reodica case: when it comes to
prosecution for violations of special law, you
follow the special law.
SEC. 2. The complaint
or information – The
complaint or information
shall be in writing, in
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 15

the name of the People of writing charging a person

the Philippines and with an offense,
against all persons who subscribed by the
appear to be responsible prosecutor and filed with
for the offense involved the court. (4a)
(2a)
Q: Who are the people authorized to institute
Q: How do you file a complaint? or commence criminal cases?
A: The complaint shall be in writing in the A: The following:
name of the People of the Philippines and against 1. Offended party;
all persons who appear to be responsible for the 2. Peace officer;
offense involved. 3. Prosecutor; and
4. Public officer charged with the
Q: What happens if the criminal complaint or enforcement of the law.
information is filed in the name of the private
complainant? Q: How do you distinguish a complaint from
A: According to the SC, the complaint is information?
defective. It can be quashed but it is only a formal A: The following are the distinctions:
defect. In case it proceeds to trial, it should be
corrected but it is not really a fatal mistake. It can 1. As to who files the complaint or
be cured at any stage of the action by amending information
the information or even if it is not cured, there is a A COMPLAINT is filed by the (a)
valid judgment, you are found guilty, it shall no be offended party; (b) any peace officer;
voided merely because the title is defective. It will (c) prosecutor; (d) or any public officer
not invalidate the proceedings. charged with the enforcement of the
law.
Now the law says, “against all who appear to On the other hand, an
be responsible.” Meaning, it is the sworn duty of a INFORMATION is prepared and
policeman or fiscal to file a case against all who signed by the prosecutor.
appear to be responsible. It does not say who are
guilty. 2. As to purpose
A COMPLAINT filed in court is
Q: How do you define complaint? either for preliminary investigation or
A: Section 3, Rule 110: for trial, but an INFORMATION filed in
court is only for trial.
SEC. 3. Complaint
defined. – A complaint is 3. As to where to file
a sworn written statement A Complaint may be filed in court
charging a person with an or in the office of the prosecutor, but
offense, subscribed by the an INFORMATION is always filed in
offended party, any peace court.
officer, or other public
officer charged with the 4. A COMPLAINT can be filed in court,
enforcement of the law for trial or for mere preliminary
violated. (3) investigation, or it can even be filed
not in court but in the prosecutor’s
Q: Supposes a complaint is filed but it was not office for preliminary investigation. But
sworn to or signed, is it valid? where an INFORMATION is filed, it is
A: The SC said, it is a formal defect. It can be always filed in court and always for
cured. Generally, the signature is not needed. trial.

The complaint contemplated in Section 2

Q: How do you define information? could be filed in the MTC for trial (e.g. physical
A: Section 4, Rule 110: injuries), or it could be a complaint for murder in
the MTC, not for trial but for preliminary
SEC. 4. Information investigation.
defined. – An information
is an accusation in The complaint filed in the fiscal’s office, city or
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 16

province, is known in Spanish as “DENUNCIA” offended party cannot

which is filed for preliminary investigation as institute criminal
distinguished from the real complaint mentioned prosecution without
in Section 3. In Section 3, it is always filed by the including the guilty
offended party. Although in some cases like when parties, if both are
the offended party died, it is the police who files alive, nor, in any case,
the affidavit complaint before the prosecutor’s if the offended party has
office for preliminary investigation. consented to the offense
or pardoned the offenders.
EXAMPLE: Pedro was a victim of robbery. The offenses of
Can he file a complaint for robbery? YES. What if seduction, abduction and
he died before he could file? acts of lasciviousness
shall not be prosecuted
Q: Can the family of Pedro file a complaint upon a complaint filed by
under Section 3? the offended party of her
A: No, because they are not the offended parents, grandparents or
party. They should file a complaint in the fiscal. If guardian, nor, in any
you are talking of a complaint filed under Section case, if the offender has
3, you must be the offended party. But a been expressly pardoned by
complaint filed with the fiscal, need not be by the any of them. If the
offended party. (Evarle vs. Sucaldito, 156 SCRA offended party dies or
808) becomes incapacitated
before she can file the
complaint, and she has no
That is the distinction, and the fiscal has the
known parents,
authority to investigate any crime whether the one
grandparents or guardian,
complaining is the victim or not because the
the State shall initiate
offended party is the People of the Philippines.
the criminal action in her
behalf.
SEC. 5. Who must The offended party,
even if a minor, has the
prosecute criminal
actions. – All criminal right to initiate the
prosecution of the
actions commenced by a
complaint or information offenses of seduction,
shall be prosecuted under abduction and acts of
the direction and control lasciviousness
of the prosecutor. independently of her
However, in Municipal parents, grandparents, or
Trial Courts or Municipal guardian, unless she is
incompetent or incapable
Circuit Trial Courts when
the prosecutor assigned of doing so. Where the
thereto or to the case is offended party, who is a
not available, the minor, fails to file the
offended party, any peace complaint, her parents,
officer, or public officer grandparents, or guardian
charged with the may file the same. The
enforcement of the law right to file the action
violated may prosecute the granted to parents,
case. This authority shall grandparents, or guardian
cease upon actual shall be exclusive of all
intervention of the other persons and shall be
prosecutor or upon exercised successively in
elevation of the case to the order herein provided,
the Regional Trial Court. except as stated in the
The crimes of adultery preceding paragraph.
and concubinage shall not No criminal action for
be prosecuted except upon defamation which consists
a complaint filed by the in the imputation of any
offended spouse. The of the offenses mentioned
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 17
above shall be brought
except at the instance of
and upon complaint filed
by the offended party.
(5a)
The prosecution for
violation of special laws
shall be governed by the
provision thereof. (n)
However once the case is in court, the
complaint or information filed shall be prosecuted
under the direction and control of the public
prosecutor. This shows the control of the
government. This is one feature of the
Inquisitorial System of criminal procedure. The
fiscal has the absolute control.
Q: Can the offended party hire his own lawyer
to prosecute?
A: YES, the offended party can hire his own
lawyer who is known as the private prosecutor.
The personality of the private prosecutor is based
on the provision in the RPC that every person
criminally liable is also civilly liable. It is because
of this civil liability that the offended party has an
interest in the criminal case.
Even if the public prosecutor may turn over
the active conduct of the trial to the private
prosecutor, he must be present during the
proceedings because he is, by law, duty-bound to
take charge of the prosecution of the case until its
termination.
If the public prosecutor or fiscal and the
private prosecutor do not agree on how to
prosecute, the fiscal will prevail because the
private prosecutor is under the direct control of
the fiscal.
Q: What happens if there are no fiscal in a
municipality?
A: According to Section 5, Rule 110:
“However, in Municipal Trial Courts or Municipal
Circuit Trial Courts when the prosecutor assigned
thereto or to the case is not available, the
offended party, any peace officer, or public officer
charged with the enforcement of the law violated
may prosecute the case.”
This provision that if there is no prosecutor,
puwede sila, is taken from the ruling of the SC in
the case of People vs. Beriales, 17 SCRA 24.
Usually, in the absence of the fiscal, it is the
police authorities who act as prosecutors.
However, according to the SC in the 1992 case of
PEOPLE vs. RAMOS
207 SCRA 144
FACTS: The case is triable by the
MTC of Ilocos Norte. The offended
party went to the fiscal and filed the
information. During the trial, the judge
declared the fiscal in contempt of court
as when the case was called for trial,
the fiscal was not around. The fiscal
answered in writing. When asked to
explain why he refused to come to
court despite the previous order, he
said his office is undermanned or
understaffed. Thus he could not
personally appear and prosecute. At
any rate, the fiscal pointed out in his
explanation that the prosecution of the
case can be handled by the offended
party or any peace officer.
ISSUE: Who should prosecute the
case? The public prosecutor or any of
the persons mentioned in Section 5,
Rule 110?
HELD: It is the public prosecutor
who should prosecute the case
because he already knew about the
case. He was the one who
investigated the case. Therefore, he
should continue in the prosecution of
the case in court. While it is true that
the law allow the offended party, any
peace officer, or other public officer to
prosecute a criminal case in places
where there are no fiscals available,
that is only the EXCEPTION.
The GENERAL RULE is that the
fiscal himself should handle the
prosecution of the criminal case. It is
his duty and moral obligation to
prosecute the case after having
conducted the investigation and,
believing that there is a case, filed an
information in court.
“The Court feels that in those
cases where the prosecutors
themselves have filed the criminal
charges, there is all the more reason
for them to actively intervene in their
prosecution. Having presumably made
the necessary investigation of these
cases before filing the corresponding
informations, they are the best position
to handle their prosecution on the
basis of their initial findings. If the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 18

prosecutor had not determined the The offenses of

prima facie guilt of the accused, he seduction, abduction and
should not have filed the information in acts of lasciviousness
the first place. At any rate, there is shall not be prosecuted
something not quite correct in the upon a complaint filed by
prosecutor filing the information the offended party of her
himself and then leaving the offended parents, grandparents or
party in the lurch, as it were, by asking guardian, nor, in any
him to fend for himself in prosecuting case, if the offender has
the case. been expressly pardoned by
“The exception provided in Section any of them. If the
5 must be strictly applied as the offended party dies or
prosecution of crime is the becomes incapacitated
responsibility of officers appointed and before she can file the
trained for that purpose. The violation complaint, and she has no
of the criminal laws is an affront to the known parents,
People of the Philippines as a whole grandparents or guardian,
and not merely the person directly the State shall initiate
prejudiced, who is that the prosecution the criminal action in her
be handled by persons skilled in this behalf.
function instead of being entrusted to
private persons or public officers with Take note that in the third paragraph, RAPE is
little or no preparation for this already deleted. It is not a private crime anymore.
responsibility. The exception should be It is already a crime against person because of
allowed only when the conditions the new law – RA 8353, Anti-Rape Law of 1997 –
therefor as set forth in Section 5, Rule amending the RPC. Now, it can be prosecuted
110 of the Rules on Criminal without the private complainant.
Procedure have been clearly
established.” Q: The SC said in one case that there is no
such animal as Private Crimes because every
crime is against the State. But why do we call
According to Section 5, the criminal action these private crimes - adultery, concubinage,
shall be under the control and supervision of the seduction, abduction, and acts of lasciviousness?
prosecutor. That is only applicable if you are A: It is because of all these requirements: the
talking of the trial court. But if the criminal case is complaint is duly prepared, signed and sworn to
lifted in the CA or SC on appeal, wala ka nang by the offended party. Actually, the correct name
pakialam. It should be the Solicitor General who of these crimes is CRIMES WHICH CANNOT BE
must represent the People of the Philippines. PROSECUTED DE OFFICIO.

The next paragraphs of Section 5 are Q: What is the reason for the requirement that
somehow reiterated in Article 144, RPC, which is they shall be prosecuted upon complaint of the
popularly known as PRIVATE CRIMES: offended party?
A: This requirement was imposed out of
The crimes of adultery consideration for the offended party or her
and concubinage shall not relatives who might prefer to suffer the outrage in
be prosecuted except upon silence rather than go through with the scandal of
a complaint filed by the a public trial. (Sumilin vs. CFI, 57 Phil. 298;
offended spouse. The People vs. Santos, 101 Phil. 798)
offended party cannot
institute criminal In ADULTERY or CONCUBINAGE, the
prosecution without offended party is only the husband or the wife.
including the guilty The parents have nothing to do with the adultery
parties, if both are or concubinage. In adultery, it is not allowed that
alive, nor, in any case, the husband files a complaint against his wife
if the offended party has without including her paramour. Nor is it allowed
consented to the offense that the husband files a case for adultery against
or pardoned the offenders. his wife’s lover without including his wife. The law
provides, “xxx the offended party cannot initiate
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 19
criminal prosecution without including the guilty
parties, if both are alive, xxx”. The same rule
applies in concubinage.
In either case, consent or pardon by the
offended party is a bar to criminal prosecution.
Consent indicates allowance.
SEDUCTION, ABDUCTION, ACTS OF
LASCIVIOUSNESS. If the victim is already of
AGE, the decision of filing or not filing the case
belongs to her.
Q: What happens if the offended party is a
MINOR and does not want to file?
A: The parents, grandparents, or guardian
may file the complaint.
Q: Suppose the minor is incompetent as in the
case of insanity, who will file the complaint?
A: Her parents, grandparents or guardian my
institute the case.
Q: Suppose the minor has no known parents,
grandparents, or guardian?
A: The State shall initiate the criminal action in
her behalf under the principle of Parens Patriae.
Q: What happens when an information for
adultery or concubinage is filed without a
complaint? Is it a jurisdictional effect?
A: According to some rulings, it is a
jurisdictional defect. The SC held that compliance
in Article 344 and counterpart (as well as other
crimes against chastity) is jurisdictional, and not
merely a formal, requirement. While in point of
strict law the jurisdiction of the court over the
offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just
as jurisdictional mandate since it is that complaint
which starts the prosecutory proceeding and
without which the court cannot exercise its
jurisdiction to try the case. (People vs. Mandea,
60 Phil. 372; People vs. Surbano, 37 SCRA 565;
People vs. Babasa, 97 SCRA 672; Pilapil vs.
Ibay-Somera, 174 SCRA 653)
But there is a SECOND VIEW: You can
question the filing but it is not jurisdictional. It is a
condition precedent but not jurisdictional because
if you say jurisdiction, they are vested by the
judiciary law. There is nothing in the judiciary law
which can speak about complaint filed in court by
the offended party. (People vs. Estrebella (1986);
People vs. Saniaga (1988); People vs. Bugtong
(1989); People vs. Tarul (1989); People vs.
Cabodac (1992); People vs. Leoparde (1992);
People vs. Hilario (1993)
PROBLEM: Suppose a victim of a private
crime in a municipality prepared a complaint,
swore to it, and FILED IT IN THE MTC FOR
PRELIMINARY INVESTIGATION. [Remember
that in provinces, there are two (2) possibilities if
you want to file a case in the RTC: (1) file a
complaint in the MTC for preliminary
investigation, or (2) file a complaint with the
provincial fiscal’s office also for preliminary
investigation. Unlike in the cities we only file with
the fiscal because only one is allowed to conduct
preliminary investigation in chartered cities.] After
the preliminary investigation, the judge said there
is a probable cause and therefore, forwarded the
case to the provincial fiscal. The fiscal filed the
information in the RTC.
Q: Can the RTC try the case when there is no
complaint by the offended party in the RTC?
A: The SC said YES. The complaint filed in
the MTC for preliminary investigation will already
serve the purpose. There is no need for another
complaint to be prepared and signed by the victim
to be filed with the RTC.
PROBLEM: Suppose the offended party of a
private crime in a municipality, instead of filing the
complaint in the MTC, she filed it in the office of
the provincial fiscal or prosecutor.
Q: Will the case prosper?
A: The SC said NO. The case must be
dismissed because the complaint contemplated
by the law, signed and sworn to by the victim, is a
complaint FILED IN COURT, not a complaint filed
in the fiscal’s office.
Q: What should be the correct procedure?
A: After preliminary investigation, the fiscal
should prepare a complaint and should prepare
an information signed by him and the victim.
Unlike where the complaint filed in the MTC for
preliminary investigation, there is no need for
another complaint to be filed in the RTC. But if the
complaint (denuncia) is filed in the fiscal’s office,
the rule is: it will not serve as the basis for a
criminal prosecution. In connection with this
principle is the leading case of
PEOPLE vs. ILARDE
125 SCRA 11
FACTS: This is a case for adultery
originated in the City of Iloilo. A man
caught his wife in an act of adultery.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 20
The next thing he did was to execute
an affidavit-complaint, which he filed in
the office of the City Prosecutor of
Iloilo City. In his affidavit he said, “I’m
formally charging my wife and X and
would request this affidavit be
considered as a formal complaint
against them.” While the case was
pending before the fiscal for
investigation, he died. So the Fiscal
asked how he can file an information
in court when there is no complaint
because the rule is, the complaint filed
with the fiscal’s office is not the
complaint contemplated by law; there
must be a complaint filed signed by
the offended party. But in this case,
the complainant was already dead.
Although there was an affidavit-
complaint.
The fiscal knew that and so he
prepared an information for adultery
charging the wife and her paramour. In
the information he stated: “The
undersigned City Fiscal upon sworn
statement originally filed by the
offended party, xerox copies of which
are hereto attached as annexes A and
B …xxx” So what he did was to
incorporate the affidavit of the
deceased offended husband in the
information.
Now, the wife and the paramour
moved to quash the information
alleging lack of jurisdiction upon the
offense charged because under Article
344 of the RPC, the requirement for
the complaint of adultery was not
complied with citing the case of People
vs. Santos, 101 Phil. 798, where it was
held that the complaint filed in the
fiscal’s office for a private crime is not
the complaint contemplated by law. On
that basis, RTC Judge Ilarde
dismissed the case.
The prosecution went to the SC on
certiorari.
HELD: The respondent trial court
is wrong. The order of dismissal is
hereby set aside and is directed to
proceed with the trial of the case. “It
must be borne in mind, however, that
this legal requirement was imposed
out of consideration for the aggrieved
party who might prefer to suffer the
outrage in silence rather than go
through the scandal of a public trial.
Thus, the law leaves it to the option of
the aggrieved spouse to seek judicial
redress for the affront committed by
the erring spouse. And this, to Our
mind, should be the overriding
consideration in determining the issue
of whether or not the condition
precedent prescribed by said Article
344 has been complied with. For
needless to state, this Court should be
guided by the spirit, rather than the
letter, of the law.”
“In the case at bar, the desire of
the offended party to bring his wife and
her alleged paramour to justice is only
too evident. Such determination of
purpose on his part is amply
demonstrated in the dispatch [speed]
by which he filed his complaint with the
fiscal’s office [because he filed the
complaint the day after the crime
happened]. The strong and equivocal
statement contained in the affidavit
filed with the Fiscal's Office that “I am
formally charging my wife of the crime
of adultery and would request that this
affidavit be considered as a formal
complaint against them” – is a clear
show of such intent.”
“The ruling in People vs. Santos is
not applicable to the case at bar. In
that case, the sworn statement was
not considered the complaint
contemplated by Article 344 of the
Revised Penal Code because it was a
mere narration of how the crime was
committed. Whereas, in the case at
bar, in the affidavit-complaint
submitted by the offended husband,
he not only narrated the facts and
circumstances constituting the crime of
adultery, but he also explicitly and
categorically charged private
respondents with the said offense –
“I’m charging my wife and her
paramour with adultery.”
“Moreover, in Santos, the SC
noted that the information filed by the
fiscal commenced with the statement
‘the undersigned fiscal accuses so and
so,’ the offended party not having
been mentioned at all as one of the
accusers. But in the present case, it is
as if the husband filed the case.”
“The affidavit of the husband here
contains all the elements of a valid
complaint under Section 5, Rule I10 of
the Rules of Court. What is more, said
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 21
complaint-affidavit was attached to the
information as an integral part thereof,
and duly filed with the court.
Therefore, the affidavit complaint
became the basis of the complaint
required by Section 5.”
So it became sort of an exception to the
general rule that the affidavit-complaint in the
fiscal’s office is not the one contemplated by law.
While I was reading this case, I noticed that the
fiscal was very imaginative on what he is going to
do, kasi alam niya ang rules eh. That fiscal is now
Solicitor General Galvez. And I was surprised
why the husband drafted the affidavit that way.
Maybe he knew he was dying. Later, they found
out that the husband was a lawyer. And do not be
shocked, the paramour was also a lawyer! So that
was a very interesting case. The ruling was
reiterated in the 1991 case of PEOPLE vs.
JAROL (June 19, 1991).
Last paragraph, Section
5, Rule 110: No criminal
action for defamation
which consists in the
imputation of any of the
offenses mentioned above
shall be brought except at
the instance of and upon
complaint filed by the
offended party.
The fifth paragraph of Section 5 is taken from
Article 360 of the RPC. Article 360 refers to the
crime of libel or slander.
Q: Is the crime of defamation [slander is when
you defame somebody orally; libel is when the
defamation is in writing] a private crime?
A: NO.
Q: Can a case of slander be filed in court
without a complaint signed and sworn to by the
offended party?
A: As a GENERAL RULE, YES, EXCEPT
when the defamation imputes to the offended
party the commission of any of the crimes
mentioned above. Meaning, it imputes to the
offended party the commission of a private
offense like adultery, concubinage, abduction,
seduction, acts of lasciviousness (ACASA). In this
case, the criminal action shall be brought at the
instance of and upon a complaint filed by the
offended party.
Q: Is the accusation “mang-aagaw ng asawa
ng may asawa!” an imputation of adultery?
A: No. It is a mere implication of a vice or
defect, not an imputation of adultery. The phrase
was translated as “seducer of the husbands of
other woman.” It implies that the person to whom
it is addressed is a FLIRT, a TEMPTRESS, or
one who indulges in inciting another’s husband.
(Gonzales vs. Arcilla, November 18, 1991)
The last paragraph states that “The
prosecution for violation of special laws shall be
governed by the provision thereof.” The best
example is the case of Reodica vs. CA, which we
already discussed, that prescription for violation
of a special law is not governed by the RPC but
by special law. The ruling was emphasized in the
1996 case of
LLENES vs. DICDICAN
July 31, 1996
HELD: “The institution of the
complaint in the prosecutor’s office
shall interrupt the period of
prescription of the offense charged
under Section 1, Rule 110. The rule,
however, is entirely different under Act
No. 3326, as amended, whose Section
2 explicitly provides that the period of
prescription shall be interrupted by the
institution of judicial proceedings, i.e.,
the filing of the complaint or
information with the court.” Therefore,
the filing of the complaint in the fiscal’s
office does not interrupt the running of
the prescriptive period. That is only
true in felonies under the RPC. But
when in comes to special laws, we
follow the special law.
Q: When is a complaint or information
sufficient?
A: Read Section 6, Rule 110
SEC. 6. Sufficiency of
complaint or information.
– A complaint or
information is sufficient
if it states the name of
the accused; the
designation of the offense
given by the statute; the
acts or omissions
complained of as
constituting the offense;
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 22

the name of the offended produce any adverse effect because what is
party; the approximate important is the identity of the person of the
date of the commission of accused, not his name . (People vs. Ramos, 85
the offense; and the place Phil. 683) Kung nagkamali, eh di palitan!
where the offense was [problema ba yun? Ha!] This reminds me of the
committed. Fortun brothers – the Delia Rajas incident during
When an offense is the impeachment trial.
committed by more than one
person, all of them shall
be included in the SEC. 8. Designation of
complaint or information. the offense. – The
(6a) complaint or information
shall state the
Q: Suppose the information is defective, designation of the offense
kulang-kulang ba, there are some essential facts given by the statute, aver
required by law which are not stated. Can it be the acts or omissions
cured during the trial? constituting the offense,
A: YES. Any defect in the complaint or and specify its qualifying
information may be cured by evidence introduced and aggravating
by the prosecution, EXCEPT: circumstances. If there is
no designation of the
1. when the defect is jurisdictional offense, reference shall
(People vs. Abad Santos, 76 Phil. be made to the section or
744); or subsection of the statute
2. when the complaint or information punishing it. (8a)
does not charge any offense. (People
vs. Austria, 94 Phil. 897) SEC. 9. Cause of the
accusation – The acts or
SEC. 7. Name of the omissions complained of as
accused. – The complaint constituting the offense
or information must state and the qualifying and
the name and surname of aggravating circumstances
the accused or any must be stated in ordinary
appellation or nickname by and concise language and
which he has been or is not necessarily in the
known. If his name cannot language used in the
be ascertained, he must be statute but in terms
described under a sufficient to enable a
fictitious name with a person of common
statement that his true understanding to know what
name is unknown. offense is being charged
If the true name of the as well as its qualifying
accused is thereafter and aggravating
disclosed by him or circumstance and for the
appears in some other court to pronounce
manner to the court, such judgment. (9a)
true name shall be
inserted in the complaint There is one major change here. The law now
or information and record. specifically emphasizes under Section 8 and
(7a) Section 9 that you do not only mention the crime.
You must also specify the aggravating and the
qualifying circumstance. What is new here is the
Q: One of the requirements under Section 7 is “aggravating.”
that the name of the accused must be stated in
the information. Eh kung nagkamali ka? Is that The old rule is, there is no need of specifying
fatal? What is the effect of an erroneous name the aggravating circumstances because anyway,
given to the accused in the complaint or they are not elements of the crime. They are only
information? circumstances that affect the criminal liability and
A: The defect is not fatal. The error will not if the aggravating circumstances are proven, they
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 23
can still be applied against the accused. The new
law now says you do not only specify the
qualifying, you also mention the aggravating.
Now, how does it affect the old jurisprudence?
Q: My question is this, based on my own
interpretation of Sections 8 and 9, Problem: the
information does not allege the aggravating
circumstances. In the course of the trial, the
prosecution starts proving. Under the new rule,
the defense can object to any evidence to prove
the aggravating circumstance because the same
is not mentioned in the information. But I will go
further: an aggravating circumstance is not
alleged in the information and the prosecution
starts proving and there was no objection on the
part of the defense. Now, can the court in
imposing the penalty, consider the aggravating
circumstance?
A: My personal view is YES because of the
waiver for failure to object, in the same manner
that an aggravating circumstance not alleged may
still be considered as such. My only interpretation
of this provision is that if this is not alleged in the
complaint or information and the prosecution
starts proving it, the defense can object and that
objection must be sustained. But if there is no
objection, the old rule can still be applied because
of estoppel or waiver.
Well, that is my personal view on that matter. I
do not know whether my view is correct or not.
But I believe my view is correct because anyway
even the judges here in Davao are asking for my
view. I receive calls from time to time from these
people. [ehem!]
Q: Let’s go to Section 9. Suppose the offense
says, “criminal case for murder” but in the body of
the information there is no allegation of a
qualifying circumstance. What does the fiscal
charge, Murder or Homicide?
A: HOMICIDE. The SC held that the
designation of the offense is not an essential
element of a complaint or information, because,
at most that is a mere conclusion of the fiscal.
What is controlling is the recital of facts appearing
in the body of the complaint or information.
(People vs. Agito, April 28, 1958; People vs.
Cosare, 95 Phil. 656)
But there are some EXCEPTIONS like what
happened in the case of
U.S. vs. TICZON
25 Phil. 67
FACTS: A complaint was filed by
the woman stating that “while the
offended party was inside her house at
night and all the doors were locked
and all the windows were closed, the
accused surreptitiously entered the
house and approached the offended
party who was asleep, raised her skirt
and at that very moment the woman
woke up and resisted.” [This can be an
attempted rape but the element of the
crime was not fully accomplished
because of an act or accident other
than her own resistance.] But sabi ng
caption, “for trespass to dwelling” –
pwede man din.
HELD: Sabi mo, “trespass”. OK,
eh di trespass! So the caption prevails.
When the facts appearing in the
complaint or information are so stated
that they are capable of two or more
interpretations, then the designation of
the offense in the caption controls.
Take note that under the new rape law, RA
7659, there are some circumstances which if
present call for the mandatory death penalty. In
the case of
PEOPLE vs. MANHUYOD, JR.
May 20, 1998
HELD: When you charge
somebody with a heinous crime such
as rape, the information must make
reference to the new law. If not, it will
only be translated as an ordinary
aggravating circumstance because the
information was charged after the
effectivity of the heinous crime law.
“Finally, a few words on the lack of
care devoted to the preparation of the
information filed before the trial court.
The Office of the Provincial Prosecutor
had in its possession evidence that the
crime was committed by a father
against his 17-year old daughter after
the effectivity of R.A. No. 7659, hence
the imposable penalty was death. It
was then necessary to make reference
to the amendatory law to charge the
proper offense that carried the
mandatory imposition of capital
punishment.”
“Prosecutors are thus admonished
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 24
to exercise utmost care and diligence
in the preparation of complaints or
informations to avert legal
repercussions which may prove
prejudicial to the interest of the State
and private offended parties.”
Q: According to Section 9, the elements of the
crime must be recited in the complaint or
information. Must the exact language of the law
be used?
A: NO. You can use other words provided it
would convey the same idea or thought.
EXAMPLE: THEFT. The information does not
contain the allegation “intent to gain” which is an
element of the crime of theft. The SC said it is not
required because those words are presumed from
the information that the accused appropriated to
himself the things belonging to the offended party.
(U.S. vs. Alabot, 38 Phil. 698)
EXAMPLE: ROBBERY WITH FORCE UPON
THINGS. There was no allegation that the
accused entered the house of the victim with the
use of force upon things but the information
alleges that the accused entered the house of the
victim by passing through a hole in the ceiling, an
opening not intended for entrance. Ano yan? The
SC said that is tantamount to use of force upon
things. (People vs. Lareza, 73 Phil. 658)
EXAMPLE: MURDER. There was no
allegation of treachery (alevosia) but the
information says that when the accused killed the
victim, the latter was not in the position to defend
himself. The SC said they mean the same thing.
In fact, it became clearer. (People vs. Gustahan,
47 Phil. 376)
Another interesting case of treachery is the
case of
PEOPLE vs. ABUYEN
213 SCRA 569 (1992)
FACTS: The accused here killed
two (2) children, one was aged 6 years
and the other was 13 years old. He
stabbed them. The information
charges the accused with the killing
the 2 minors. There is no statement
that there was treachery. All that the
information says is that the accused
killed the 2 “minors.”
ISSUE: Was there a murder?
HELD: YES. When the accused
killed the minors, that is equivalent of
killing by treachery and therefore
qualifies the killing to murder.
“It has, time and again, been held
that the killing of minor children who,
by reason of their tender years, could
not be expected to put up a defense is
considered attended with treachery
even if the manner of attack was not
shown. The allegation in the
Information that the victims are both
minors is to be considered compliance
with the fundamental rule that the
qualifying circumstances should be
alleged in the information.”
“It is commonly understood in
practice that when the victim in
physical injuries, homicide, or murder
cases is a child of tender years, he is
described in the information as a
minor. Minority in such a case should
not be equated with its statutory
meaning — that is, below eighteen
(18) years old. It is used not so much
as to state the age of the victim
(otherwise, the charging fiscal would
have simply placed the exact ages)
rather, it is more of a description of the
state of helplessness of the young
victim.”
Q: CONSPIRACY. Jet and Pao are charged
for murder pero ang sinasabi sa information, it
was Jet who killed the victim. Now, in conspiracy,
the act of one is the act of all. Would that
sufficiently charge Pao?
A: NO. Kailangan mong i-describe ang
conspiracy para matamaan si Pao. Klaruhin mo
yung conspiracy, otherwise if the allegation of
conspiracy is not shown against Pao, then, there
is no crime of conspiracy. This is the guideline
laid down by the SC in the 1998 case of
PEOPLE vs. QUITLONG
292 SCRA 260
HELD: “Unlike the omission of an
ordinary recital of fact which, if not
excepted from or objected to during
trial, may be corrected or supplied by
competent proof, an allegation,
however, of conspiracy, or one that
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 25
would impute criminal liability to an
accused for the act of another or
others, is indispensable in order to
hold such person, regardless of the
nature and extent of his own
participation, equally guilty with the
other or others in the commission of
the crime. Verily, an accused must
know from the information whether he
faces a criminal responsibility not only
for his acts but also for the acts of his
co-accused as well.”
Meaning, if you are charging me
for what my companion did, you better
be clear that there is conspiracy para
ma-apply yung doctrine na ‘the act of
one is the act of all.’
“The opinion of the trial court to the
effect that conspiracy may be inferred
from the allegation of abuse of
superior strength and with the aid of
armed men is difficult to accept. the
information must state that the
accused have confederated to commit
the crime or that there has been a
community of design, a unity of
purpose or an agreement to commit
the felony among the accused.
Conspiracy must be alleged, not just
inferred, in the information on which
basis an accused can aptly enter his
plea, a matter that is not to be
confused with or likened to the
adequacy of evidence that may be
required to prove it.”
You can prove conspiracy by direct evidence.
But kahirap niyan uy unless you were there
listening. In criminal law, when two or more
persons act together in unison to attain the same
criminal objective, then conspiracy can be
inferred. Meaning, you can use that as evidence
to convict a person but for purposes of filing the
case, you must expressly allege it.
Therefore, for purposes of charging –
express. For purposes of proving – implied. Yan!
This is precisely because directly proving it, is
difficult. The manner of charging is different from
the manner of proving. (People vs. Quitlong,
supra)
EXAMPLE: DIRECT ASSAULT. The SC said
it is not enough for the information to say that the
victim is a person in authority. The charge for
such offense must be so framed as to clearly
allege the functions of the person assaulted, so
as to show that he comes under the definition of
person in authority. (People vs. Carpizo, 80 Phil.
234) Of course, I believe that if the position is
obvious, the court will take judicial notice of that.
There is no need to describe. But if it comes to
some position which are not really common, the
information must recite the functions.
EXAMPLE: TREASON. An information for
treason is insufficient if it merely alleges generally
that the accused had adhered to the enemy,
giving her aid and comfort. The charge must be
specific by stating what is termed as overt act of
giving aid and comfort to the enemy. (Guinto vs.
Veluz, 77 Phil. 798)
EXAMPLE: LIBEL. In charging libel, the
prosecution must single out the libelous
statements and quote verbatim in the complaint
or information. (People vs. Bustos, 59 Phil. 375)
We will go to another issue regarding
HABITUAL DELINQUENCY. The case is
PEOPLE vs. VENUS
63 Phil. 435
FACTS: The City Fiscal of Manila
file with the CFI of Manila an
information charging the accused with
the crime of robbery in an inhabited
house. The information alleges,
among others,” that the accused is a
habitual delinquent, he having been
previously convicted by final
judgement rendered by a competent
court, once for the crime of attempted
robbery in an inhabited house and
once for theft, the date of his last
conviction being November 14, 1934.
Note: There is habitual
delinquency when, for a period of ten
(10) years, from the date of his last
conviction or release for a crime of
serious or less serious physical
injuries, robbery, theft, estafa and
falsification, he is found guilty of any of
said crimes, a third time or oftener.
ISSUE: Was there a sufficient
allegation of habitual delinquency?
HELD: NO. “Habitual delinquency,
can not be taken into account in the
present case because of the
insufficiency of the allegation on this
point in the city fiscal's information.
While the information specifies the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 26
particular offense (attempted robbery
in an inhabited house) for which the
defendant-appellant was alleged to
have previously been convicted and
also the date of the last conviction for
theft which occurred prior to the date
of the commission of the offense now
charged. But this does not make the
information sufficient in law for it fails
to specify the date of the conviction of
the accused for the crime of attempted
robbery. For all we know, the two
previous convictions for attempted
robbery in an inhabited house and
theft may have taken place on the
same date (November 14, 1934) or on
two different dates so close together
as to warrant the court in considering
the two convictions as only one for the
purposes of the application of the
habitual delinquency law.”
“Upon the other hand, it may
happen that a person accused of robo,
hurto, estafa or falsificacion may have
been convicted of any of said offenses
after the commission of the crime with
which he is charged. We have already
held that previous convictions in order
to be considered for the purpose of
imposing the additional penalty for
habitual delinquency, must precede
the commission of the crime charged.
Other instances may be mentioned but
those given suffice to demonstrate the
necessity of charging the existence of
habitual delinquency with sufficient
clearness and certainty to enable the
courts to properly apply the provisions
of our law on the subject.”
“It is therefore urged upon
prosecuting attorneys that in the
prosecution of cases of this nature,
they should not content themselves
with a general averment of habitual
delinquency but should specify the
dates:
1. of the commission of the
previous crimes,
2. of the last conviction or
release, and
3. of the other previous
convictions or release of
the accused. “
“Informations filed in these cases
should be sufficiently clear and
specific to avoid the improper
imposition of the additional penalty on
a plea of guilty to a general allegation
of habitual delinquency, no less than
the frequency with which hardened
criminals escape the imposition of the
deserved additional penalty provided
for by law.”
Q: Must excepting clauses be alleged in a
complaint or information?
A: It DEPENDS. If the excepting clause forms
part of the definition of the offense, it must be
alleged; but if it is a matter of defense, it need not
be alleged in a complaint or information. (U.S. vs.
Chan Toco, 12 Phil. 262)
Sometimes it is hard to distinguish what is an
element of a crime, and what is a matter of
defense as stated in a law. The exceptive clauses
such as “provided further”, and “provided
furthermore” are very confusing. Sometime you
get lost. Ano ba itong “provided further”? Is this
part of the crime or is it a part of the defense?
Confusing ba! Like in the old case of
U.S. vs. POMPEYA
31 Phil. 245
FACTS: The municipal
government passed an ordinance
which requires all able-bodied male
residence of the municipality between
the ages of 18 and 35 to assist in
peace and order campaign in the
municipality by rendering services.
The accused violated the ordinance.
So he was charged. The information
says he is a resident of the
municipality, he is male, he is able-
bodied and he refuses to render
service to the government. According
to the accused, the information is
defective, it does not reconcile all the
elements because it does not state
how old he was. But according to the
prosecutor, “No! I do not have to
allege your age. It is for you to prove
that you are below 18 or more than
35!”
ISSUE: Whether or not the clause
in the ordinance pertaining to the age
range of 18 to 35 is part of the crime,
because if it is part of the crime, then it
must be alleged.
HELD: The SC ruled that the age
requirement is an element of the crime
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 27

and therefore must be alleged. Failure of the crime.

to allege it is fatal because he may
belong to the exempt age in which
case the prosecution may not prosper. SEC. 10. Place of
commission of the offense.
Let us try to compare that in the case of – The complaint or
U.S. vs. YAO SIM information is sufficient
31 Phil. 301 if it can be understood
from its allegations that
FACTS: The accused was charged the offense was committed
with violation of the opium law. The or some of its essential
opium law was the predecessor, the ingredients occurred at
great grandfather of the Dangerous some place within the
Drugs Act. That was the old law which jurisdiction of the court,
prohibits the use and smoking of unless the particular
opium without the prescription of a place where it was
licensed practicing physician. committed constitutes an
The accused argued that there is essential element of the
no crime committed because the offense charged or is
information did not allege that the necessary for its
accused has no prescription from a identification. (10a)
duly licensed or a practicing physician.
But the prosecution contended that it Q: When you say place, do you have to be
is for the accused to prove that he has very specific as to the place where the crime was
a prescription. The element of the committed? You must describe the kalsada, the
crime is only smoking opium. street?
A: NO. As a matter of fact, if you look at the
HELD: The SC said, the information, it just says, you committed the crime
prosecution is correct. It is not part of in Davao City without even stating what barangay
the crime, it is a matter of defense. or barrio. So, the place of the commission of the
The crime is smoking opium, period! crime maybe stated generally. What is only
But if you say you have prescription, important is it is within the territorial jurisdiction
then you prove it.
EXCEPTION when the place of the
That is sometimes the difficult areas in the commission of the crime constitutes an essential
law. You don’t know whether it is part of a crime element of the crime charged. Yan! You must be
or just a part of your defense. There are things specific. Examples:
that we have to determine. This is part of our
study of Section 9. EXAMPLE: TRESPASS TO DWELLING. You
must specify that the crime was committed by
Q: Like for example, yung ILLEGAL entering into the dwelling of somebody. You
POSSESSION OF FIREARMS. Do you have to cannot just say that he committed it in Davao
allege that the firearm is not licensed? City. You must say na pumasok siya sa bahay na
A: The SC said YES, that is part of the crime. ito. Or

Q: But in DANGEROUS DRUGS ACT, iba EXAMPLE. ROBBERY IN AN INHABITED

man. If you are in possession of opium, marijuana HOUSE, PUBLIC BUILDING OR EDIFICE
or whatever, you are liable if without authority of DEVOTED TO WORSHIP. You must state the
law. Now, who will prove the authority of law? Is particular house. Kailangan specific ka diyan.
that part of the definition of the crime?
A: The SC said NO. It is for you to prove that
you are authorized. The crime is the possession SEC. 11. Date of
or use of marijuana. That you are authorized to commission of the offense.
- It is not necessary to
possess or smoke is a matter of defense.
state in the complaint or
information the precise
Now let’s go to the next section. You must
date the offense was
allege the place of the commission of the crime.
committed except when it
You must also allege the date of the commission
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 28

is a material ingredient Section 10, UNLESS the date of the commission

of the offense. The of the crime is an essential element of the crime.
offense may be alleged to Like for example:
have been committed on a
date as near as possible EXAMPLE: VIOLATION OF ELECTION
to the actual date of its CODE, drinking liquor during election day. You
commission. (11a) must be specific kung anong araw yun. Hindi
pwedeng “on or about election day.” Hindi pwede
yan! If you drank liquor before, wala mang crime.
Q: How about yung date? Is it necessary that If you drink liquor after, wala mang crime ba!
it should be very accurate?
A: NO. What is important is that the EXAMPLE. INFANTICIDE. It is committed by
information alleges that the crime was committed killing a child less than 3 days old or less than 72
“on or about” a certain date. hours. If the infant is exactly 3 days old, it is no
longer infanticide. So the information must be
Q: The information said that Judy committed very specific that the child was born on this day,
homicide on January 20. During the trial, on this time and the killing was done on this day,
pinalabas na December 20 pala – one month on this time.
earlier. Is that harmless or fatal?
A: It is still covered by the phrase “on or
about.” A variance of a few months between the SEC. 12. Name of the
time set out in the indictment and that established offended party. – The
by the evidence during the trial has been held not complaint or information
to constitute an error so serious as to warrant must state the name and
reversal of a conviction solely on that score alone. surname of the person
(Rocaberte vs. People, 193 SCRA 192) against whom or against
whose property the offense
But when you say December 2000 and then was committed, or any
the crime pala was committed in 1995, ay sobra appellation or nickname by
na yan! That is too much. Five (5) years is no which such person has been
longer covered by “on or about.” That is already or is known. If there is
violative of Section 11. A variance of several no better way of
years, or the statement of the time of the identifying him, he must
commission of the offense which is so general as be described under a
to span a number of years has been held to be fictitious name.
fatally defective. (Rocaberte vs. People, 193 (a) In offenses against
SCRA 192) property, if the name of
the offended party is
Q: And what is the remedy in that case? unknown, the property must
A: The remedy against an indictment that fails be described with such
to allege the time of the commission of the particularity as to
offense with sufficient definiteness is a motion for properly identify the
a bill of particulars (Rocaberte vs. People, 193 offense charged.
SCRA 192). Do not dismiss the information. That (b) If the true name of
was commented by the SC in the recent case of the person against whom or
People vs. Garcia, November 6, 1997 (281 SCRA against whose property the
463). offense was committed is
thereafter disclosed or
I have to admit that the rules now try to make ascertained, the court
a gap between the date of the commission of the must cause such true name
crime as alleged in the information and the actual to be inserted in the
complaint or information
date of commission to be not so far. You look at
and the record.
Section 11: “xxx The offense maybe allege or
(c) If the offended
committed on a date as near as possible to the
party is a juridical
actual date of its commission.” That phrase “as
person, it is sufficient
near as possible” is not found in the 1985 rules.
to state its name, or any
name or designation by
The ONLY EXCEPTION is just like in the
which it is known or by
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 29
which it may be
identified, without need
of averring that it is a
juridical person or that
it is organized in
accordance with law. (12a)
Let’s go to the next rule – name of the
offended party. You must allege also who is the
victim. We are talking here about the victim – the
private offended party.
Q: Why is it that the name of the offended
party must be alleged in the information?
A: First, the general rule is that, aside from the
People of the Philippines, there is a private victim.
Second, so that we will know to whom the court
will award the civil liability.
Q: Is there a possibility by which the name of
the offended party is not mentioned in the
information but the same is still valid?
A: YES. Paragraph [a], in a crime against
property. If you do not know who is the victim of
theft or robbery, it is enough that you describe the
property in the information.
EXAMPLE: A thief, nahuli and he was found
in possession of stolen goods and he admitted he
stole. Kanino? “Ewan ko. Basta gi-snatch ko man
lang ito.” Can the police file a case? YES. You
just describe the property in the information even
if we don’t know the owner because you commit
theft when you take personal property belonging
to another with intent to gain. What is important is
that, it belongs to another.
PEOPLE vs. CFI OF QUEZON BR. 5
209 SCRA 704
FACTS: The accused was charged
with timber smuggling or illegal cutting
of logs from public forest under PD No.
320. Ayan, wala talagang private
offended party diyan. The only
offended party is the government. But
the information does not mention that
the offended party is the State. The
accused challenged the information on
this ground.
HELD: Even if the State is not
mentioned, the information is NOT
defective. Why? You look at the
caption of the case – “People of the
Philippines”. That is actually the
offended party.
Q: What happens if there was an erroneous
naming of the offended party?
A: In the case of
PEOPLE vs. UBA
99 Phil 134
FACTS: Vidz, on a certain date,
was alleged to have uttered publicly
slanderous words against Jessamyn.
So Jessamyn is the victim of the
slander. Alam niyo during the trial, it
turned out that the victim pala was
Lyle, not Jessamyn. But everything is
the same – the date and place of the
commission, the defamatory words –
pare-pareho! Only, there was an
erroneous designation of the offended
party.
ISSUE: Can the court convict Vidz
for the crime of slander?
HELD: NO. Although the words
are the same, the slander against Lyle
is a separate offense. Meaning, you
are charging a different offense from
the crime proven. You cannot convict
a person of a crime not properly
charged.
“A mistake in putting in the
information the name of the offended
party is a material matter which
necessarily affects the identification of
the act charged. The case should be
dismissed for variance between the
allegations of the information and the
proof.”
However, there were exceptions in the past
like where the accused, who is not a doctor, was
charged of illegal practice of medicine. The
information stated that the offended party is Paul.
Pag-trial, hindi pala si Paul. Si Inay pala dapat
ang victim. The SC said the accused can be
convicted. Why? The crime is illegal practice of
medicine regardless of whether the victim is Paul
or Inay. (Diel vs. Martinez, 76 Phil. 273) Yan! It is
different from the case of Uba.
SEC. 13. Duplicity of
the offense. – A complaint
or information must charge
only one offense, except
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 30
when the law prescribes a
single punishment for
various offenses. (13a)
The complaint or information must charge
only one offense. It cannot charge 2 or more
offenses. If it does, it is called duplicitous
complaint or information.
Q: What is the remedy there?
A: Actually, you can file a Motion to Quash
under Section 3 [f], Rule 117. But the defect is
waivable because if you do not file a Motion to
Quash, the trial can proceed and if you are found
guilty for committing 2 or more crimes, then there
will be 2 or more penalties (Section 4, Rule 120).
Dapat diyan, one information, one crime. That is
the GENERAL RULE.
This seems to go against the rule in civil
procedure about joinder of causes of action. In
one complaint you can join 2 or more causes of
action, although you can also file 2 or more
cases. Ano’ng tawag diyan? Joinder of parties or
joinder of causes of action. There is no such thing
as joinder of crimes in criminal procedure.
EXAMPLE: The Patrick got a gun, went out of
the street, then met three people. Binaril niya:
Bang! Bang! Bang! Tatlong tao patay!. Now, he
commits three (3) crimes of homicide.
Q: Can I file one information accusing Patrick
of 3 homicide committed on that day?
A: NO. That is duplicitous. There must three
(3) informations, one for each victim.
Q: But that is troublesome. The evidence or
the witnesses are identical. What is the remedy?
A: You file a Motion to Consolidate your trial –
joint trial for the 3 criminal cases. That is the
remedy, but not 1 information charging 3 acts of
homicide unless the other party does not question
the duplicitous character of the information.
EXCEPTION. The rule prohibiting duplicitous
complaints or informations provides for
exceptions: “Except when the law prescribes a
single punishment for various offenses.” When
the law provides only one penalty for 2 or more
offenses then Section 13 is not violated.
Examples:
EXAMPLE: COMPLEX CRIMES – when a
single act produces 2 or more grave or less
felonies or when one offense is a necessary
means to commit another. Actually, parang
duplicitous yun eh kung tingnan mo because you
are accusing somebody of 2 homicides based on
1 single act. But that is only an exception. There
is one penalty anyway.
EXAMPLE: SPECIAL COMPLEX CRIMES.
Robbery with homicide or Rape with Homicide.
That is not duplicitous. There is one penalty there.
EXAMPLE: DELITO CONTINUADO. The
accused stole 2 rooster owned by 2 different
people. Actually, there are 2 acts of taking but in
the eyes of the law, there is only one crime. The
accused was motivated by single criminal
resolution.
EXAMPLE: Babang was charged of the crime
of REBELLION. Rebellion – she took up arms
against the government, killed soldiers, burned
government properties. “Duplicitous yan! Kadami-
dami nyan o!” NO. That is not duplicitous because
based of the absorption doctrine – the common
crimes are not to be treated as separate crimes
but are already absorbed in the rebellion. The SC
said there is no crime such as rebellion
complexed with murder or homicide. But why do
you have to recite all these things? That is merely
a recital of the manner of the crime of rebellion.
That is not a violation of Section 13.
PEOPLE vs. BUENVIAJE
47 Phil. 536
FACTS: There was a special law
penalizing in once section the crime of
illegal practice of medicine AND
illegally advertising oneself as a
doctor. The penalty of 5-year
imprisonment shall be imposed on a
person who, not being a physician,
practice medicine or advertise himself
as a physician. There is only one
penalty for these acts. The information
alleges: “That the accused is charged
of violating that law because he
practiced medicine, or IN THE
ALTERNATIVE, he advertised himself
as a doctor when in fact, he is not.”
ISSUE: Is the information
duplicitous?
HELD: NO. When the information
merely recites in the alternative or
otherwise the different ways of
committing the offense like the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 31

information charges the accused for
illegal practice of medicine and with
illegally advertising himself as a
physician, there is only one crime
because these are only alternative
ways of committing the crime.
problem. It can be allowed at any stage.
Substantial amendment, for as long as there is
still no responsive pleading, the plaintiff can
amend his complaint anytime. Once a responsive
pleading is filed, substantial amendment is
allowed but with leave of court.

The rule is different when the accused is
charged of violating 2 different sections of the
same law with distinct penalties which, if charged
in a single information, would render it duplicitous.
(People vs. Ferrer, 101 Phil. 234)
In criminal procedure the rule is: for as long as
the accused has not yet entered his plea – wala
pang arraignment, the accused has not yet
pleaded guilty or not guilty – the information can
be amended either in substance or in form.

SEC. 14. Amendment or Q: What happens if the accused has already

substitution. – A entered his plea? Can the information still be
complaint or information amended by the prosecution?
may be amended, in form or A: As to FORM – Yes, as a matter of judicial
in substance, without discretion. Kailangan merong permission.
leave of court and when it As to SUBSTANCE – Never! Bawal! 100%
can be done without prohibited.
causing prejudice to the
rights of the accused. Q: How do you determine whether the
However, any amendment amendment is formal or substantial? Sometimes
before plea, which madali, sometimes mahirap. Kung wrong spelling
downgrades the nature of lang, talagang formal yan.
the offense charged in or A: According to the SC based on certain
excludes any accused from cases, the following are considered substantial
the complaint or and therefore cannot be allowed after plea:
information, can be made
only upon motion by the 1. if the amendment changes the manner
prosecutor, with notice to of the commission of the offense;
the offended party and (People vs. Zulueta, 89 Phil. 752)
with leave of court. The
court shall state its 2. if it changes the name of the offended
reasons in resolving the party; (People vs. Uba, 99 Phil. 134)
motion and copies of its
order shall be furnished 3. if it changes the date of the
all parties, especially
commission of the offense; (People vs.
the offended party. (n)
Opemia, 98 Phil. 698)
If it appears at
Let’s say, from the year 2000 to 5
anytime before judgment
years backwards. Hindi pwedeng
that a mistake has been
maging formal yan.
made in charging the
proper offense, the court
4. when the purpose of amendment is to
shall dismiss the original
complaint or information make the information charge an
upon the filing of a new offense when the original information
one charging the proper does not charge an offense; (Wong vs.
offense in accordance with Yatco, 99 Phil. 791) or
section 19, Rule 119,
provided the accused shall 5. when it changes the fact or ground of
not be placed in double responsibility alleged in the original
jeopardy. The court may information. (People vs. Labatete, 57
require the witnesses to O.G. 6783)
give bail for their Example: from accomplice,
appearance at the trial. gagawin kang principal. The same is
(14a) not formal.

In civil procedure, formal amendment – no Q: How do you determine whether the

 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 32
amendment is as to form or substance?
A: An amendment which merely states with
additional precision something which is already
contained in the original information, and which,
therefore, adds nothing essential for conviction for
the crime charged is an amendment to form that
can be made at anytime. (People vs. Montenegro,
159 SCRA 236)
Q: The amendment is substantial if the
amendment will prejudice the rights of the
accused. How do you determine whether the
rights of the accused are prejudiced?
A: The test as to when the rights of an
accused are prejudiced by the amendment of a
complaint or information is when a defense under
the complaint or information, as it originally stood,
would no longer be available after the
amendment is made, and when any evidence the
accused might have, would be inapplicable to the
complaint or information as amended. (People vs.
Montenegro, 159 SCRA 236) Meaning, evidence
which could help you in the first place will no
longer help you after the amendment – that is
prejudicial.
BUHAT vs. COURT OF APPEALS
265 SCRA 701, December 17,
1996
FACTS: Danilo Buhat was charged
with homicide in an information which
alleged that the accused killed the
victim using superior strength. [Dapat
diyan murder eh because of superior
strength] Accused Buhat pleaded not
guilty. After that the prosecution
sought to amend the information by
upgrading the crime charged from
homicide to the more serious crime of
murder.
ISSUE: Is the amendment
SUBSTANTIAL or FORMAL?
HELD: It is FORMAL because the
allegation of superior strength is
already there. In other words, from the
very start, it was really meant to be
murder. Mabuti sana kung dinagdag
lang yung superior strength. It is
already there all along.
“The real nature of the criminal
charge is determined not from the
caption or preamble of the information
nor from the specification of the
provision of the law alleged to have
been violated, they being conclusions
of law which in no way affect the legal
aspects of the information, but from
the actual recital of facts as alleged in
the body of the information.”
“Petitioner in the case at bench
maintains that, having already pleaded
“not guilty” to the crime of homicide,
the amendment of the crime charged
in the information from homicide to
murder is a substantial amendment
prejudicial to his right to be informed of
the nature of the accusation against
him. He utterly fails to dispute,
however, that the original information
did allege that petitioner stabbed his
victim “using superior strength”. And
this particular allegation qualifies a
killing to murder, regardless of how
such a killing is technically designated
in the information filed by the public
prosecutor.”
Meaning, in the case of Buhat the prosecutor
believes originally that it is homicide, but it is
murder pala all along. We are not adding anything
new.
Kaya nga when I read it, I think there’s
something wrong here with this kind of ruling. Just
imagine, na-capital crime ka, tapos formal
amendment lang? You know my personal view in
the case of Buhat, it should be treated only as
homicide with the aggravating circumstance of
abuse of superior strength. But that was what the
SC said eh. Wala tayong magawa.
However, any amendment
before plea, which
downgrades the nature of
the offense charged in or
excludes any accused from
the complaint or
information, can be made
only upon motion by the
prosecutor, with notice to
the offended party and
with leave of court. The
court shall state its
reasons in resolving the
motion and copies of its
order shall be furnished
all parties, especially
the offended party.
(n)(second paragraph,
Section 14, Rule 110)
The second paragraph of Section 14 is new.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 33

Take note in the case of Buhat, from homicide to
murder. Ito naman, baliktad. Let’s say before
arraignment, sabi ng Fiscal: “Teka muna, di pala
murder, homicide lang pala,” So, gi-downgrade
ba!
Now, if prosecutor will do that, he must notify
the offended party, at least the family, so that he
can be heard before the trial court allows. So this
time, the amendment is not a matter of right.
from the crime charged and therefore the
accused cannot be convicted for the crime proven
because the crime proven is not included in the
crime charged.
Q: So what should the court do?
A: The court should dismiss the complaint or
information upon the filing of a new information by
the prosecution. Provided, the principle of double
jeopardy is not applicable.

Again, when you amend a complaint or Remember the case of Uba, where Vidz was
information to downgrade the nature of the charged with oral defamation for uttering
offense or when the amendment is to exclude an slanderous remarks against Jessamyn on a
accused from the complaint or information, of particular date and time. But during the trial, it
course, it can only be done by motion of the turned out that the slander was committed against
prosecutor, notice to the offended party, and Lyle. Now, can Vidz be convicted for the crime of
decree of court. That is a new provision. slander against Lyle, when the information says
the crime was against Jessamyn? NO. Although
If it appears at the crime proven is the same, however the
anytime before judgment erroneous designation of the offended party deals
that a mistake has been with entirely another crime committed against a
made in charging the different person.
proper offense, the court
shall dismiss the original Q: What should the court do in that case?
complaint or information A: Following Section 14, the fiscal should file
upon the filing of a new a new information almost exactly the same as the
one charging the proper old one, now the offended party is Lyle. The court
offense in accordance with will now dismiss the original charge which is
section 19, Rule 119, entirely different.
provided the accused shall
not be placed in double Q: What do you call that?
jeopardy. The court may A: SUBSTITUTION of complaint or
require the witnesses to information.
give bail for their
appearance at the trial. Q: Now, how do you distinguish substitution of
(Last paragraph, Section information from amendment of information?
14, Rule 110) A: The case of
Let’s go to basic. TEEHANKEE JR. vs. MADAYAG

Q: After the trial, the crime proven is different
from the crime charge. However, the former is
included in the latter. Will you dismiss the case?
A: NO, just convict the accused for the crime
proven since the crime proven is included in the
crime charged.
EXAMPLE: Jenny was charged with murder.
After trial, the prosecution proved homicide. What
will the court do? Dismiss the complaint for
murder? NO. Jenny should be convicted for
homicide because all the element of homicide are
also included in the crime of murder. (Rule 119)
However, that is not what Section 14
contemplates. What is contemplated by Section
14 is, the offense proven is completely different
207 SCRA 134
FACTS: This case was about the
murder of Maureen Hultman. She was
shot but did not die immediately. So
the crime charged was frustrated
murder. But while the case was
pending, Hultman died. Therefore, the
fiscal filed a new information for
consummated murder.
ISSUE: Distinguish amendment of
information from substitution of
information? [This would be clearer
when we reach Rule 112 on
Preliminary Investigation]
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 34
HELD: The first paragraph
provides the rules for amendment of
the information or complaint, while the
second paragraph refers to the
substitution of the information or
complaint.
It may accordingly be posited that
both amendment and substitution of
the information may be made before or
after the defendant pleads, but they
differ in the following respects:
1. AMENDMENT may involve
either formal or substantial
changes, while
SUBSTITUTION necessarily
involves a substantial change
from the original charge;
2. AMENDMENT before plea has
been entered can be effected
without leave of court, but
SUBSTITUTION of information
must be with 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 of the accused; in
SUBSTITUTION of information,
another preliminary
investigation is entailed and the
accused has to plead anew to
the new information; and
4. An AMENDED information
refers to the same offense
charged in the original
information or to an offense
which necessarily includes or is
necessarily included in the
original charge, 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. On the
other hand, 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.
In amendment, you are not changing the
crime. The crime is the same. Therefore, after the
accused has pleaded, you cannot change the
information anymore. That is why substantial
amendments can never be allowed after the plea.
If this rule is violated, he will be placed in double
jeopardy because you are charging him for the
same offense or an offense necessarily included
in the original charge.
On the other hand, substitution presupposes
that the new information or complaint involves a
different offense which is not necessarily included
in the in the original charge. Therefore, the
accused cannot claim double jeopardy. How can
you invoke double jeopardy in substitution when
the new charge is completely different from the
original charge?
I remember this was a 1992 decision. During
the 1994 Bar exams, this was one of the
questions that entered into my mind. Nahulaan ko
na lalabas ito eh. (ehem!): distinguish amendment
from substitution. Just remember the case of
Teehankee Jr. vs. Madayag. I think that question
was only 3 points. Alright.
SEC. 15. Place where
action is to be
instituted. (a) Subject to
existing laws, the
criminal action shall be
instituted and tried in
the court of the
municipality or territory
where the offense was
committed or where any of
its essential ingredients
occurred.
(b) Where an offense is
committed in a train,
aircraft, or other public
or private vehicle in the
course of its trip, the
criminal action shall be
instituted and tried int
eh court of any
municipality or territory
where such train,
aircraft, or other vehicle
passed during its trip,
including the place of its
departure and arrival.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 35

(c) Where an offense is necessary to prosecute and punish the

committed on board a criminal in the very place, as near as
vessel in the course of may be where he committed his crime
its voyage, the criminal (MRR Co. vs. Atty. General, 20 Phil.
action shall be instituted 523);
and tried in the court of
the first port of entry or 2. As to the interest of the accused, it
of any municipality or would cause him great inconvenience
territory where the vessel in looking for witnesses and other
passed during such voyage, evidence in another place. (Beltran vs.
subject to the generally Ramos, 96 Phil. 149)
accepted principles of
international law.
(d) Crimes committed The law says, the criminal case will be tried,
outside the Philippines where?
but punishable under 1. where the offense was committed; or
Article 2 of the Revised 2. where any of the essential ingredients
Penal Code shall be occurred.
cognizable by the court
where the criminal action
is first filed. (15a)
WHERE THE OFFENSE WAS COMMITTED
In civil case we call this venue. In criminal
procedure, venue is also jurisdiction. It refers to This refers to what you call local offense.
territorial jurisdiction. So if you file a criminal case What do you mean by a local offense? It is an
in the wrong place, the accused could question offense, which is fully consummated in one place.
the jurisdiction of the court over the offense. This Meaning, all the elements of the crime happened
is one difference between civil and criminal in that place.
procedure.
WHERE ANY OF THE ESSENTIAL
(a) Subject to existing INGREDIENTS OCCURRED
laws, the criminal action
shall be instituted and This refers to what text writers call the
tried in the court of the continuing offense – where the elements occurred
municipality or territory in 2 or more places – one element occurs here,
where the offense was the other in another place. So either one can try
committed or where any of the case. The venue in this case is the choice of
its essential ingredients the prosecution.
occurred. (Section 15,
Rule 110) And mind you, the word “continuing offense”
should not be confused with the concept in
The word municipality here includes cities criminal law – the so-called continuous crime
because it could be a city. Municipality definitely under Article 48 also known as “delicto
refers to a crime triable by the MTC. The word continuado.” Dalawang klaseng continuing crime,
territory refers to a crime triable by the RTC eh. One of the relatives of complex crime is
because of the provision of Section 18, BP 129 “delicto continuado” – where a person performs a
that every RTC has its own territory over which it series of acts but all emanating from one criminal
resides, for purposes of venue in civil cases and resolution – but the issue to be resolved is: how
jurisdiction in criminal cases where the offense many crimes were committed by the accused?
was committed or where any of the essential Yun ang tanong dun.
ingredients occurred.
Ito namang “continuing offense”, the question
Q: Why does the law prescribes that the case here is: in which court of what place will the crime
be filed or tried in the place where the crime was be tried? Yan!
committed?
A: The following are the reasons: Q: How do you define a continuing offense or
1. The interest of the public requires that, transitory crime?
to secure the best results and effects A: It is a crime where the elements occur in
in the punishment of crimes, it is
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 36
several places.
EXAMPLE: KIDNAPPING or ABDUCTION.
The accused kidnapped Eltor in Davao City and
brought the Eltor in Cotabato and hidden there.
Same thing with abduction: Karen was abducted
in Davao City and brought in Cotabato.
Q: Where should the case of kidnapping or
abduction as the case may be, be filed?
A: It could be filed in Davao where the victim
was taken or abducted, or in Cotabato were the
victim was brought.
Q: Brod Pito took your vehicle here in Davao
and brought it to Cotabato. Where should the
crime of qualified theft be tried? Davao or
Cotabato? Is that a continuing offense or not?
A: Davao. It is a local offense. From the
moment the car was taken in Davao, the crime
has already been consummated. It is not an
indispensable requisite of theft that the thief carry,
more or less far away, the thing taken by him
from its owner. (Duran vs. Tan, 85 Phil. 476)
Theft is committed by taking personal things.
Taking is instant. From the moment it came to y
our possession, tapos na!
Let’s go to the issue of FENCING – you buy
stolen property. If you have known it is stolen, you
are liable. But take note: there can be no fencing
if there is no robbery or theft. Fencing
presupposes there is robbery or theft.
Q: Inday stole a property in Digos. It was
brought here and Maritess bought it here in
Davao. Maritess is now charged with fencing. Of
course Maritess can be charged here in Davao
City because she bought it here. But can the
crime of fencing be also filed in Digos where the
theft was committed on the theory that: how can
there be fencing unless there was theft?
Therefore everything can go back to the place
where the original crime was committed. Is that
correct?
A: It is NOT correct because fencing is not a
continuing crime. It is a local offense. It is different
from the crime of theft or robbery. Both crimes are
two different crime. The law on fencing does not
require the accused to have participated in the
criminal design to commit, or to have been in any
wise involved in the commission of, the crime of
robbery or theft. Neither is the crime of robbery or
theft made to depend on an act of fencing in order
that it can be consummated. True, the object
property in fencing must have been previously
taken by means of either robbery of theft but the
place where the robbery or theft occurs is
inconsequential.
It may not be suggested, for instance, that, in
the crime of bigamy which presupposes a prior
subsisting marriage of an accused, the case
should thereby be triable likewise at the place
where the prior marriage has been contracted.
(People vs. De Guzman, October 5, 1993)
Q: ESTAFA or MALVERSATION. The
company’s head office is in Makati. Kenneth is
the representative of the company assigned in
Davao. He collects payments from customers in
Davao and he is supposed to remit all his
collections to Makati. Kenneth did not remit his
collections to Makati. Where should the case of
estafa be brought? Davao or Makati?
A: Either of the two. The crime is continuing. It
shall be instituted in the place where the
misappropriation was committed OR in the place
where the accused was to render his accounting.
(U.S. vs. Mesina, 42 Phil. 67)
Let’s go to BOUNCING CHECKS law. Where
should the criminal case for violation of bouncing
checks law be filed? Sometimes, fiscals get
confused. You owe me, you are in Manila, then
you issue a check in Manila and sent it to Davao.
Then I will deposit the check in Davao. Of course
the bank will forward it to Manila for clearance.
The Manila bank dishonored it kay walang
pondo. Where is the venue for such crime? That
is what happened in the case of
PEOPLE vs. GOROSPE
January 20, 1988
(reiterated in Lee vs. CA [1995])
FACTS: The accused is from
Bulacan. He was a dealer of San
Miguel products and he is under the
control of the Central Luzon Regional
Office of San Miguel Corporation
(SMC) which is in San Fernando,
Pampanga. So a representative of
SMC went to Bulucan, collected from
him, he issued checks which were
drawn in Bulucan. The checks were
received by the representative of SMC
and went to the Head Office in
Pampanga and turned-over it. The
Pampanga office of SMC deposited
the checks with its depositary bank in
San Fernando, Pampanga. The
checks were sent to Bulacan for
clearing. Talbog! With this, series of
cases were filed. Some cases were
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 37
estafa. Some were for violation of BP
22.
The accused challenged it
because all these cases were filed in
San Fernando, Pampanga eh.
According to him, the cases should be
filed in Bulacan. Remember, the
checks were Bulucan checks and it
was dishonored also in Bulacan. He
said, “I did not deliver it in San
Fernando. I gave it to your
representative. So the check was
delivered to a representative. So the
delivery was made in Bulacan. Thus
the Pampanga court has no
jurisdiction.”
ISSUE: Is the contention of the
accused correct?
HELD: NO! Mali! Actually, the
crime is continuing because the crime
continues up to the delivery of the
check to the Central Luzon Office of
SMC in Pampanga. Under the
Negotiable Instruments Law, the
delivery of the check must be made to
a person who takes it as a holder or
bearer of the instrument. The checks
are intended to be delivered in the
Head Office because it is the delivery
in Pampanga which makes the payee
the bearer or the holder – not the
employer who went to Bulacan. So
tinamaan ang Pampanga court. In
effect, it is a continuing crime.
In respect of the Bouncing Checks
case, “it is likewise true that
knowledge on the part of the maker or
drawer of the check of the insufficiency
of his funds, which is an essential
ingredient of the offense is by itself a
continuing eventuality, whether the
accused be within one territory or
another. Accordingly, jurisdiction to
take cognizance of the offense also
lies in the Regional Trial Court of
Pampanga.” Meaning, wherever the
checks go, the knowledge of
insufficiency is a continuing element.
Q: Where shall the criminal action for
FALSIFICATION of a private document be filed?
A: It shall be filed in the place where the
document was falsified, regardless of whether it
was or was not put to the illegal use for which it
was intended. (U.S. vs. Barretto, 36 Phil. 204)
Q: Genie executed a false affidavit in Manila.
It was sent to Davao to be used in a certain
proceeding or case. Where is the venue of the
PERJURY?
A: It should be filed in the place where the
false evidence was submitted and NOT in the
place where the false affidavit was subscribed
and sworn to. (U.S. vs. Cañete, 30 Phil. 371)
Let’s go to some EXCEPTIONS:
Q: Are there instances where the crime is
committed in this place but the trial can be filed in
another place, other than the place where the
crime was committed?
A: YES, if the law says so because of the
opening clause of paragraph (a) of Section 15
which says, “subject to existing laws.” Meaning,
this is the applicable rule unless other existing law
says otherwise.
Q: Give instances where the crime maybe
committed in one place but the law provided for a
different venue of trial.
A: The following:
1. Libel – under Article 360 of RPC, it is
to be filed where the libelous matter
was printed or first published, or where
the injured party resides or where he
holds office;
2. Sandiganbayan Law – cases falling
under the jurisdiction of the
Sandiganbayan are tried in designated
places;
3. Section 5 (4), Article VIII, 1987
Constitution – The SC may order a
change of venue or place of trial to
avoid a miscarriage of justice as what
happened in the case of Sanchez and
Misuari.
Those are the exceptions. All the rest covers
other cases Paragraph (d) refers to crimes
committed on board a Philippine ship or airplane
abroad. It is triable in the Philippines. Where in
the Philippines? – where the criminal action is first
filed. Kung saan, mamili ang prosecution kung
saan i-file.
SEC. 16. Intervention
of the offended party in
criminal action. – Where
the civil action for
recovery of civil
liability is instituted in
the criminal action
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 38
pursuant to Rule 111, the
offended party may
intervene by counsel in
the prosecution of the
offense. (16a)
Of course, the prosecution is under the control
of the fiscal but the law says, the private offended
party can intervene through counsel. That is what
you call the appearance of the private prosecutor.
Q: When is it allowed?
A: The following are the requirements:
1. if there is civil liability arising from the
crime because the purpose of the
private prosecutor is to protect the civil
liability of the offended party;
2. there is no waiver. The offended party
should not waive the civil liability;
3. the offended party should not have
reserved to file a separate civil action
because once you have made a
reservation, wala na. You cannot
anymore hire a private prosecutor;
4. the civil action has not been previously
instituted because if the civil action is
already filed, you cannot intervene in
the criminal case.
Q: What are the rights of the offended party in
a criminal action?
A: The following:
1. to take part in the prosecution of the
offense;
2. to recover civil liability from the
accused arising from the crime; and
3. to appeal from any judgment or order
adversely affecting his claim to such
civil liability. (People vs. Velez, 77 Phil.
1026)
Q: Give the limitations to the offended party’s
right of intervention in a criminal action.
A: The following:
1. such intervention shall be under the
direction and control of the fiscal
(Section 5);
2. such intervention shall only be for the
purpose of enforcing the accused’s
civil liability arising from the crime.
(People vs. Velez, supra)
One of the interesting case decided based on
Section 16 is the 1987 case of
BANAL vs. TADEO, JR.
156 SCRA 325
FACTS: This is a case for violation
of BP 22. The offended party hired a
private prosecutor to prosecute the
case. The accused challenged the
appearance of the private prosecutor
on the ground that BP 22 does not
provide for any civil liability and
therefore there is no civil liability.
So the trial court disqualified the
private prosecutor. The offended party
went to the SC.
ISSUE: Is a private prosecutor
allowed to intervene in a BP 22 case?
HELD: YES. A private prosecutor
is allowed to intervene in a BP 22 case
because there is a civil liability in BP
22 even if the law silent about it.
Normally lawyers would say that
civil liability in a criminal case arises
from the crime; because of the crime,
there is civil liability. According to the
SC: WRONG!! It is not the crime which
is the source of the civil liability. It is
the damage that the accused caused
to the victim!
“The generally accepted notion
that the civil liability actually arises
from the crime a misconception or
fallacy. [Masyadong malalim ang
discussion ng SC dito] “While an act or
omission is felonious because it is
punishable by law, it gives rise to civil
liability not so much because it is a
crime but because it caused damage
to another. Viewing things
pragmatically, we can readily see that
what gives rise to the civil liability is
really the obligation and the moral duty
of everyone to repair or make whole
the damage caused to another by
reason of his own act or omission,
done intentionally or negligently,
whether or not the same be
punishable by law. In other words,
criminal liability will give rise to civil
liability only if the same felonious act
or omission results in damage or injury
to another and is the direct and
proximate cause thereof. Damage or
injury to another is evidently the
foundation of the civil action. Such is
not the case in criminal actions for, to
be criminally liable, it is enough that
the act or omission complained of is
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 39

punishable, regardless of whether or

not it also causes material damage to
another. Article 20 of the New Civil SECTION 1. Institution
Code provides: of criminal and civil
“Every person who, actions. – (a) When a
contrary to law, willfully criminal action is
or negligently causes instituted, the civil
damage to another, action for the recovery of
shall indemnify the civil liability arising
latter for the same.” from the offense charged
“Regardless, therefore, of whether shall be deemed instituted
or not a special law so provides, with the criminal action
indemnification of the offended party unless the offended party
may be had on account of the waives the civil action,
damage, loss or injury directly suffered reserves the right to
as a consequence of the wrongful act institute it separately or
of another. The indemnity which a institutes the civil
person is sentenced to pay forms an action prior to the
integral part of the penalty imposed by criminal action.
law for the commission of a crime. The reservation of the
Every crime gives rise to a penal or right to institute
criminal action for the punishment of separately the civil
the guilty party, and also to civil action action shall be made
for the restitution of the thing, repair of before the prosecution
the damage, and indemnification for starts presenting its
the losses.” evidence and under
circumstances affording
The ruling in Banal seems not to jive with the offended party a
Article 1157 of the New Civil Code. Under Article reasonable opportunity to
1157, the following are the sources of obligations: make such reservation.
1. laws; When the offended party
2. contracts; seeks to enforce civil
3. quasi-contracts; liability against the
4. quasi-delicts; accused by way of moral,
5. acts or omissions punishable by law. nominal, temperate, or
exemplary damages without
According to Article 1157, a crime punishable specifying the amount
thereof in the complaint
by law is a source of obligation. But in the case of
or information, the filing
Banal, the SC says NO, it is not the act or
fees therefore shall
omission but the damage or injury resulting from
constitute a first lien on
such act or omission. That is how to reconcile
the judgment awarding such
these two ideas.
damages.
Where the amount of
Q: We will go back to the issue in Banal – is
damages, other than
there civil liability in BP 22 cases? actual, is specified in
A: YES because the offended party cannot the complaint or
get back his money. If there is damage, there is information, the
civil liability even if the law is silent. Huwag mo na corresponding filing fees
lang hanapin ang provision ng civil liability. For as shall be paid by the
long as there is damage, there is civil liability. offended party upon the
Yaaann! filing thereof in court.
Except as otherwise
provided in these Rules,
no filing fees shall be
required for actual
damages.
Rule 111
No counterclaim, cross-
PROSECUTION OF CIVIL CASES
claim or third-party
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 40

complaint may be filed by

the accused in the We will now go to Rule 111. This rule has
criminal case, but any been subjected to many amendments although
cause of action which the amendments may not be very radical. As a
could have been the
matter of fact, they only incorporate
subject thereof may be
litigated in a separate jurisprudence or principles laid down in decided
civil action. (1a) cases. The main principle is: when a criminal action
(b) The criminal action is filed, the civil action of the recovery of the civil
for violation of Batas liability arising from the offense charged is
Pambansa Blg. 22 shall be deemed instituted with the criminal action.
deemed to include the
corresponding civil What is the basis for that principle? The basis
action. No reservation to is Article 100 of the RPC, “Every person
file such civil action criminally liable is also civilly liable.” When you
separately shall be
say deemed instituted, it does not only cover the
allowed.
Upon filing of the civil liability of the accused himself but also the
aforesaid joint criminal probable subsidiary civil liability of the employer
and civil actions, the under Article 103. You already knew of that rule
offended party shall pay that when an employee-accused is adjudged
in full the filing fees criminally liable and is insolvent, the employer of
based on the amount of the that accused who committed the crime while he
check involved, which was in the discharge of his duties will be the one
shall be considered as the to answer the civil liability. That is why the SC
actual damages claimed. said that whether he likes it or not, he is covered.
Where the complaint or It is advisable for the employer in that situation to
information also seeks to
help his employee in the criminal case because he
recover liquidated, moral,
nominal, temperate or will also be prejudiced if his employee will be
exemplary damages, the convicted. To borrow the language of the SC,
offended party shall pay whether he likes it or not, he is a forced intervenor
additional filing fees in the criminal case filed against his employee.
based on the amounts
alleged therein. If the Q: When is a civil action arising from a crime
amounts are not so alleged NOT deemed instituted with the criminal action?
but any of these damages A: The civil action is NOT deemed instituted
are subsequently awarded with the criminal action:
by the court, the filing
1. when the offended party has waived
fees based on the amount
awarded shall constitute a the civil aspect of the case;
first lien on the 2. when the offended party has reserved
judgment. his right to file a separate civil action;
Where the civil action or
has been filed separately 3. when the civil action was filed or
and trial thereof has not instituted ahead of the criminal action.
yet commenced, it may be 4. when the crime is one to which no
consolidated with the civil liability attaches. (People vs.
criminal action upon Maceda, 73 Phil. 679)
application with the court
5. when the civil action was filed in court
trying the latter case. If
the application is before the presentation of the evidence
granted, the trial of both for the prosecution in the criminal
actions shall proceed in action of which the judge presiding on
accordance with section 2 the criminal cases was duly informed.
of this Rule governing (Yakult Phils. vs. CA, 190 SCRA 357);
consolidation of the civil
and criminal actions. According to the second paragraph, the
(cir. 57-97) reservation must be made before the prosecution
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 41
starts presenting its evidence and under
circumstances affording the offended party
reasonable opportunity. Before the trial,
kailangan mag-reserve na siya. Otherwise the
court will consider the civil aspect deemed
instituted.
YAKULT PHILS. vs. COURT OF APPEALS
190 SCRA 357 (1990)
FACTS: In a criminal case, the
offended party did not make a
reservation but there is still no trial.
However, without making a
reservation, the offended party filed a
civil action. After such filing, the
offended party told the court trying
the criminal case, that he has already
filed a separate civil case so that the
court will not include anymore the
civil aspect.
ISSUE: Is there a proper filing of
the civil action without making a
reservation? Was the civil action filed
ahead of the criminal case?
HELD: NO. However, there is no
question that after filing the civil case
he told the court that he already filed a
separate civil action and that is even a
better reservation. In effect, there was
an automatic reservation although
normally, reservation is done before
the filing of the criminal case. Ito
naman, filing before he informed the
court.
Q: Has the offended party the right to claim
and prove damages in the criminal action where
the complaint or information is silent as to such
claim?
A: Every person criminally liable is also civilly
liable. Therefore, even if the complaint or
information is silent as to damages, the offended
party has the right to claim and prove them in the
criminal case, unless a waiver or a reservation of
the civil action is made. (People vs. Rodriguez,
July 29, 1959; Roa vs. dela Cruz, Feb. 13, 1960)
So it is possible for the information to recite
the claim for civil liability or hindi na kailangan.
The only difference is: if the information
mentions the claim of the civil liability, the
offended party is required to pay the docket fee
provided the docket fee is only for any claims for
moral, exemplary and nominal damages. There is no
docket fee for actual damages.
Q: Suppose there was no mention of any
claim for moral or exemplary damages, can he
still prove them during the trial? YES. But he did
not pay docket fee?
A: Never mind, once it is awarded, there is
now a lien in the judgment for the payment of the
docket fee.
So there is difference in the rule in docket fee
in civil and criminal cases. Remember the case of
Sun Insurance in civil procedure? If the docket fee
was not mentioned in the complaint in the civil
case they are deemed waived. You must pay the
docket fee at the start of the case though if it is
not mentioned, you are given the chance to
complete the payment or amend the complaint
within reasonable time. In criminal cases, even if
there is no mention of damages in the
information, you can still prove and claim them
as long as there is no waiver or reservation.
So in criminal cases, if the claim for moral or
exemplary damages is mentioned in the
information, you must pay the docket fee upon
filing of the information. But whether alleged in
the information or not, you can claim for actual
damages and there is no docket fee for actual
damages except in cases under BP 22. That is the
exception which is now embodied in Section 1
paragraph [b] which was take from SC circular
57-97 – there is no payment of docket fee for
actual damages except in criminal cases for
violation of BP 22 because paragraph [b] says:
Upon filing of the
aforesaid joint criminal
and civil actions, the
offended party shall pay
in full the filing fees
based on the amount of the
check involved, which
shall be considered as the
actual damages claimed.
Now, take note of the ruling in the case of
Cabaero vs. Cantos mentioned in civil procedure
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 42

which is now incorporated in the last paragraph party in the criminal case
of Section 1, paragraph [a]: and of the parties to
present additional
No counterclaim, cross- evidence. The consolidated
claim or third-party criminal and civil actions
complaint may be filed by shall be tried and decided
the accused in the jointly.
criminal case, but any During the pendency of
cause of action which the criminal action, the
could have been the running period of
subject thereof may be prescription of the civil
litigated in a separate action which cannot be
civil action. instituted separately or
whose proceeding has been
suspended shall be tolled.
That’s the Cabaero case which reversed Javier
(n)
vs. IAC, (171 SCRA 376) and Shaffer vs. RTC, (167 The extinction of the
SCRA 376). penal action does not
carry with it extinction
SEC. 2. When separate of the civil action.
civil action is suspended. However, the civil action
– After the criminal based on delict shall be
action has been commenced, deemed extinguished if
the separate civil action there is a finding in a
arising therefrom cannot final judgment in the
be instituted until final criminal action that the
judgment has been entered act or omission from which
in the criminal action. the civil liability may
If the criminal action arise did not exist. (2a)
is filed after the said
civil action has already
been instituted, the
Let’s go to Section 2. Suppose the offended
latter shall be suspended
in whatever state it may party made a reservation to institute a civil action
be found before judgment and a criminal case is filed, he cannot file the civil
on the merits. The action – that’s the rule. He must wait for the
suspension shall last outcome of the criminal case. The criminal case
until final judgment is enjoys priority.
rendered in the criminal
action. Nevertheless, The reason here is that there might be an
before judgment on the embarrassment in the administration of justice.
merits rendered in the You allowed the filing of the civil and criminal
civil action, the same cases together. Same evidence, same incident. In
may, upon motion of the
the criminal case, the accused was convicted but
offended party, be
consolidated with the in the civil case the claim for damages was
criminal action in the dismissed because the offended party failed to
court trying the criminal proved his claim by preponderance of evidence.
action. In case of That is something absurd!
consolidation, the
evidence already adduced So the best thing is unahin muna ang criminal
in the civil action shall case because anyway if there is an acquittal in the
be deemed automatically criminal case, you can still recover in the civil
reproduced in the criminal case because it is only a preponderance of
action without prejudice
evidence, or the accused may be acquitted by
to the right of the
prosecution to cross- reason of an exempting circumstance and yet it
examine the witness does not exempt him from civil liability in
presented by the offended another civil action.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 43

running period of
Take note that what is suspended is the civil prescription of the civil
action arising from the criminal act. (opening action which cannot be
paragraph of Section 2; Article 1157, New Civil instituted separately or
whose proceeding has been
Code)
suspended shall be tolled.
(n)
Q: What happens if na-una na-file yung civil
action? Ayun! The running of the prescriptive period
A: According to Section 2, from the moment shall be suspended. This was the doctrine in the
the criminal case is filed, the trial of the civil case case of People vs. Bayotas.
is suspended to wait for the outcome of the
criminal case. There is something new in the 2nd paragraph
about consolidation. When the civil case is filed
Q: Is this prejudicial to the offended party? ahead, the filing of the criminal case will suspend
A: There is a way out according to Section 2. the civil unless there is a petition to consolidate in
The first thing for him to do is to file a petition to which case the evidence presented in the civil
consolidate the trial of the criminal and civil case case is automatically considered reproduced in
for them to be tried together and the evidence the criminal case. Now read this part, third
already presented in the civil case is deemed paragraph of Section 2:
automatically reproduced in the criminal case.
This is what you call the consolidation of the civil “x x x In case of
and criminal action under Section 2. consolidation, the
evidence already adduced
Q: Is this consolidation mandatory? in the civil action shall
A: NO. It is permissive. Actually, the offended be deemed automatically
party is the one to initiate this because if not, then reproduced in the criminal
he has to wait for the criminal case to be action without prejudice
terminated before he can file the civil case. to the right of the
prosecution to cross-
examine the witness
Q: What are the instances when the offended presented by the offended
party is not allowed to make a reservation party in the criminal case
therefore requires a mandatory consolidation? and of the parties to
A: The following are the instances: present additional
evidence. x x x”
1. Violations of BP 22. (Paragraph b,
Section 1, Rule 111); What is new here is the phrase “without
2. Libel – under Article 360, RPC; prejudice to the right of the prosecution to cross-
3. Mandatory consolidation under the examine the witnesses presented by the offended party
Sandiganbayan law. For example, a in the criminal case…” I was wondering, there is
criminal case is supposed to be tried something wrong here. I believe there is a
by the SB and then you file a civil case typographical error here. Di ba the witnesses of
before the ordinary courts. What will the offended party in the civil case are also the
happen now to the civil case? The law witnesses of the prosecution in the criminal case?
says there must be a mandatory I was wondering why will the fiscal cross-
consolidation of both cases in the SB. examine his witnesses? I think the phrase really
means “the witnesses presented by the accused”.
Q: What happens if the filing of the civil
action will have to wait for the outcome of the Let’s go to some decided cases.
criminal case, baka nag-prescribed na yung civil
action? CAÑOS vs. PERALTA
A: Read 3rd paragraph of Section 2: 115 SCRA 843

During the pendency of FACTS: The case of Caños was

the criminal action, the decided before the 1985 Rules. Here,
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 44
there was reservation. There were two
(2) cases arising out of the same
incident. At that time, there was still
no specific rule on consolidation.
Judge Peralta ordered the
consolidation of the criminal and civil
cases and that was questioned.
ISSUE: Was the consolidation
proper? If so, how do you reconcile
these cases because the degree of proof
in the criminal case is not the same in
the civil case?
HELD: The consolidation was
proper under Rule 31 because there is
a common question of fact and law.
They can be consolidated but for
purposes of decision, the court will
now apply two (2) different criteria:
Proof beyond reasonable doubt in the
criminal case and preponderance of
evidence in the civil case. So there is
no incompatibility.
Now, here comes the 1985 Rules on
consolidation and one of the first cases which
reached the SC involving the new Rules was the
case of Naguiat.
NAGUIAT vs. IAC
164 SCRA 505
FACTS: Naguiat filed a case
against a subdivision development
corporation where he bought a lot in
installment basis. Under the
subdivision law kapag bayad na, you
issue the title. But according to
Naguiat, bayad na pero hindi binigay
yung title. So he filed a case for
specific performance with damages
against the subdivision and he also
filed a criminal case against the
president of the corporation for failure
to deliver to him the title of the land
under PD 957. Now, he filed a motion
to consolidate under Rule 111.
ISSUE: Is the motion to
consolidate proper?
HELD: NO. They cannot be
consolidated under Rule 111 because
what can be consolidated is a criminal
case together with a civil case for
damages from the crime committed. In
other words, damages “ex delicto.” But
here, the criminal case was filed
against the officers of the corporation
for damages and a civil case for
specific performance was also filed
against the same officers. That civil
case arose from a contract, i.e. “ex
contractu.” [So if the civil case arose
from a contract, it cannot be
consolidated with the criminal case
under Rule 111.]
But because it cannot be denied
that it would be better if we try them
together because we are talking of the
same incident – failure to deliver the
title – why not consolidate the two
cases under Rule 31, citing the case of
Caños vs. Peralta. In that case, the only
ground was there was a common
question of fact and law so they
should be consolidated under Rule 31
and NOT Rule 111.
The extinction of the
penal action does not
carry with it extinction
of the civil action.
However, the civil action
based on delict shall be
deemed extinguished if
there is a finding in a
final judgment in the
criminal action that the
act or omission from which
the civil liability may
arise did not exist. (2a)
(Last paragraph, Section
2, Rule 111)
Yan! If the accused is acquitted, it will not bar
the offended party from filing a civil action
because the extinction of the penal action does
not carry with it the extinction of the civil action
because for all you know in the civil case the
accused may be found liable.
It is now emphasized in the new rules
“however, the civil action based on delict shall be
deemed extinguished if there is a finding in a final
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 45
judgment in the criminal action that the act or
omission from which the civil liability may arise did
not exist.” This means that if the accused is
acquitted based on reasonable doubt, there could
still be civil liability arising from the crime or
when the accused is acquitted based on an
exempting circumstance. But when the accused is
acquitted on the ground that the act or omission
from which the civil liability may arise did not
exist, that is the end of the civil liability arising
from a crime.
Q: However, if I file an action based on quasi-
delict, can it prosper?
A: YES, because it is now established that the
action based on delict is extinguished but not on
quasi-delict, a contract, or other sources of
obligation. This is the ruling in the case of Bayotas
in criminal law – that, for example, once the
accused dies, the civil liability arising from crime
is already extinguished but you can still file a case
against the estate of the deceased accused provided
you can find another source of the obligation.
This ruling was emphasized in the 1998 case of
SALAO vs. COURT OF APPEALS
284 SCRA 493, January 22, 1998
HELD: The civil liability referred
to in this Rule is the civil liability
arising from crime (ex delicto). It is not
the civil liability for quasi-delict which
is allowed to be brought “separately
and independently” of the criminal
action by Art. 33 of the Civil Code. The
civil liability based on such cause of
action is not extinguished even by a
declaration in the criminal case that
the criminal act charged has not
happened or has not been committed
by the accused. Indeed, because the
offended party does not intervene in
the criminal prosecution, it is entirely
possible that all the witnesses
presented in the civil action may not
have been presented by the public
prosecutor in the criminal action with
the result that the accused in the
criminal case may be acquitted.
So remember ha, in the case of Salao the
offended party has no intervention in the criminal
case. He does not know how the public
prosecutor handled the case, baka ang testigo
kulang kaya na-acquit. So paano ako (offended
party)? I will file my own civil case and maybe I
will use quasi-delict as the basis and no longer
the delict.
These are the complicated portion of this rule.
As a matter of fact, there are queer cases decided
by the SC even before the new rules like the 1987
case of
RUFO MAURICIO
CONSTRUCTION vs. IAC
November 27, 1987
FACTS: A driver of the
construction company collided with a
car, killing the owner. What was filed
was a criminal case against the driver.
No reservation was made. Therefore
the civil liability arising from the crime
is already instituted. The driver was
convicted. On appeal, the driver died.
ISSUE: What will happen to the
civil liability arising from the crime?
Can you enforce it against the
employer based on Article 103, RPC
on subsidiary liability?
HELD: NO, because there was no
judgment of conviction which became
final. There must be a judgment of
conviction against the employee; it
must be final; he must be proven
insolvent. But the trouble is he died.
So you cannot enforce the subsidiary
liability of the employer.
However, if this was quasi-delict,
you can file a direct action against he
employer because in quasi-delict, the
liability of the employer is primary,
not subsidiary. The SC treated the case
as an action for quasi-delict against the
employer but that is unfair for the
employer because he never
participated in the trial of the civil
case. According to the SC, we will put
it back and now you will cross-
examine them (Dean I: Ano’ng klaseng
procedure ito?!). This is what the SC
said:
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 46
“The death of the accused during
the pendency of his appeal or before
the judgment of conviction became
final and executory extinguished his
criminal liability but not his civil
liability should the liability or
obligation arise not from a crime but
from a quasi-delict. The liability of the
employer here would not be
subsidiary but solidary with his driver
unless said employer can prove there
was no negligence on his part at all,
that is, if he can prove due diligence in
the selection and supervision of his
driver.”
“Inasmuch as the employer was
not a party in the criminal case, and to
grant him his day in court for the
purpose of cross-examining the
prosecution witnesses on their
testimonies on the driver's alleged
negligence and the amount of
damages to which the heirs of the
victim are entitled, as well as to
introduce any evidence or witnesses
he may care to present in his defense,
the hearing on the motion to quash the
subsidiary writ of execution must be
reopened precisely for the purpose
adverted to hereinabove.”
This is the only instance I knew that the
criminal case against a driver ended up as a case
for quasi-delict against the employer. In other
words, sh-in-ort-cut-short-cut ng SC yung
procedure eh!
SEC. 3. When civil
action may proceed
independently. – In the
cases provided in Articles
32, 33, 34 and 2176 of the
Civil Code of the
Philippines, the
independent civil action
may be brought by the
offended party. It shall
proceed independently of
the criminal action and
shall require only a COJUANGCO, JR. vs. COURT OF APPEALS
preponderance of evidence.
In no case, however, may
the offended party recover
damages twice for the same
act or omission charged in
the criminal action. (3a)
Let’s go back to basic rules.
Q: Which takes precedence when there is
reservation, the criminal or the civil action?
A: The criminal action takes precedence. The
filing of the criminal suspends the filing of the
civil action. If the civil action is filed, the civil
action is deemed suspended unless there would
be consolidation.
Now, the rule about the filing of the criminal
action will suspend the filing of the civil action,
and the rule about the subsequent filing of the
criminal action will suspend the trial of the civil
case, however, DOES NOT apply if the civil
action is classified as an independent civil action
under Section 3. This is another important
provision.
Q: What are the independent civil actions
under the law?
A: They are those covered by Articles 32, 33,
34, and 2176 of the New Civil Code.
Take note that you have to know what is
Article 32, 33, 34, 2176. It is not enough that you
memorize the articles. What is Article 32 all
about? What kind of civil action is referred
thereto? Or what is the civil action referred to in
Article 34? I think nandito yung when the civil
action is based on a violation of a constitutional
right. Article 33 is the most famous… when the
civil action is defamation, fraud and physical
injuries.
Here (Section 3), the criminal action and the
civil action can be filed simultaneously and the
trial of the two cases can go on separately and
independently of the other without regard to the
latter. Unlike when the civil action is not
classified as independent, where it is governed by
Section 2, it will be suspended in the meantime.
That is the important point to remember in this
rule.
203 SCRA 629
FACTS: In this case, there was an
independent civil action for recovery
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 47
of civil liability arising from
defamation filed by Cojuangco against
a media company. So there were two
(2) cases – a criminal action for libel
under the RPC and a civil case for
damages arising from defamation
under Article 33 of the Civil Code. The
question is: can the two cases be
consolidated under Section 2? –
because one argument is you only
consolidate the civil action if it is not
independent action. But anyway,
independent man ito – why will
consolidate?
ISSUE: May a civil action for
damages arising from defamation
(independent civil action) and the
criminal case for libel be consolidated?
HELD: YES, they can be
consolidated under Rule 31 of the
Rules of Court, citing again the case of
Caños vs. Peralta, because there is a
common question of law and fact.
“Section 1, Rule 31 of the Rules of
Court authorizes consolidation of
actions involving common questions
of law or fact pending before the court.
The purpose or object of consolidation
is to avoid multiplicity of suits, guard
against oppression or abuse, prevent
delay, clear congested dockets,
simplify the work of the trial court,
and save unnecessary costs or
expense; in short, the attainment of
justice with the least expense and
vexation to the parties litigants. This
provision applies to both civil and
criminal actions. The case Caños had
removed any doubt on this point.” [So
even if we disregard Rule 111 Section
2, it can be consolidated under Rule
31]
“There is yet a further
consideration why in the instant case
consolidation of civil case and the
criminal case should be allowed. What
is involved is the crime of libel. As
correctly stated by petitioners, per the
third paragraph of Article 360 of the
Revised Penal Code, as amended, the
criminal case for libel and the civil
action for damages arising therefrom
must be filed in the same court.”
In other words, if there is a second
reason why consolidation should be
allowed, that reason is Article 360 of
the RPC on libel. While there maybe 2
separate actions in libel – damages and
criminal case – Article 360 orders the
consolidation of the two. That is
mandated under Article 360.
The next question is: Suppose I will file an
independent civil action, do I have to make a
reservation? The civil action specified is an
independent one. Take note that under Section 1,
when you file a criminal case without making a
reservation, the civil action is already deemed
instituted unless you make a reservation.
There were some confusions on that point
because in the old cases of GARCIA VS. FLORIDO
(52 SCRA), ABELLANA VS. MARABE (57 SCRA),
the SC implied that when the civil action is
independent, there is no need to make a
reservation. That is an implication because it is
independent – why should its filing be dependent
on reservation?
However, the 1985 Rules on criminal
procedure made reservation mandatory even in
independent civil actions. Section 3 of the 1985
Rules says, “in the cases provided in Articles 32,
33, 34 and 2176 of the Civil Code, the
independent civil action which has been reserved
may be brought by the offended party, shall
proceed independently.” So in the instructive
case of MANIAGO VS. CA, (253 SCRA 674) as
well as the case of SAN ILDEFONSO VS. CA, (289
SCRA 568), the SC ruled that there is still a need,
whether a civil action is independent or not, to
make a reservation, otherwise the civil action is
deemed instituted.
NOW, you will notice in Section 3 of the new
rules, that phrase “which has been reserved” is
deleted. So based on the language of the new
rules, babalik na naman tayo sa FLORIDO and
MARABE ruling, that an independent civil action
NEED NOT BE RESERVED. Therefore, the ruling
in the MANIAGO and SAN ILDEFONSO cases is
deemed abandoned by the SC.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 48

SEC. 4. Effect of death pendency of the criminal action shall extinguish

on civil actions. – The the civil liability arising from the delict – the civil
death of the accused after liability arising from the crime is deemed
arraignment and during the extinguished which you have taken up already in
pendency of the criminal
criminal law. However, the independent civil
action shall extinguish
the civil liability action instituted under Section 3 of this Rule or
arising from the delict. which thereafter is instituted to enforce liability
However, the independent arising from other sources – meaning, another
civil action instituted source other than the delict – may be continued
under section 3 of this against the estate or legal representative of the
Rule or which thereafter accused after proper substitution as the case may
is instituted to enforce be.
liability arising from
other sources of Balik na naman tayo sa civil procedure nito.
obligation may be
The action survives – there will be substitution.
continued against the
estate or legal This is actually a repetition of civil procedure –
representative of the “the heirs of the accused maybe substituted for the
accused after proper deceased without requiring the appointment of an
substitution or against executor or administrator and the court may appoint a
said estate, as the case guardian…” That is a repetition of Rule 3, about
may be. The heirs of the substitution of a party. But the civil action here
accused may be substituted refers to a civil action where the source of a claim
for the deceased without is not a crime, wala na eh, extinguished na kaya it
requiring the appointment could be a contract or a quasi-delict.
of an executor or
administrator and the
Q: On the third paragraph, assuming there is
court may appoint a
a judgment. How will you enforce it? By
guardian ad litem for the
minor heirs. execution?
The court shall A: NO. You must file it as a claim against he
forthwith order said legal estate. As a rule, there is no execution. All the
representative or creditors mush share equally with the assets. That
representatives to appear is Special Proceedings: what claims must be filed
and be substituted within against the estate of the deceased?
a period of thirty (30)
days from notice. Q: Last paragraph. In case before
A final judgment arraignment, namatay – wala na! – the criminal
entered in favor of the
liability is extinguished. What happens now to
offended party shall be
enforced in the manner any possible civil action which the offended party
especially provided in may file?
these rules for A: He can file it against the estate of the
prosecuting claims against deceased but the assumption is, it is based on
the estate of the quasi-delict or any other sources of obligation
deceased. other than the crime.
If the accused dies
before arraignment, the
case shall be dismissed SEC. 5. Judgment in
without prejudice to any civil action not a bar. –
civil action the offended A final judgment rendered
party may file against the in a civil action
estate of the deceased. absolving the defendant
(n) from civil liability is
not a bar to a criminal
Section 4 is entirely new. The first sentence is action against the
enunciated in the case of Bayotas – the death of defendant for the same act
the accused after arraignment and during the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 49

or omission subject of the The concept of prejudicial question is the exact

civil action. (4a) opposite of Section 2 because in Section 2, unless
independent civil action, the filing of the criminal
Section 5 is the exact opposite of Section 2 action will cause the suspension of the civil
because the last paragraph of Section 2 says “the action. Ito naman, baliktad – the filing of the civil
extinction of the penal action does not carry with case will suspend the criminal case – that is, if
it the extinction of the civil action.” Itong Section there is a prejudicial question involved in the civil
5 naman, baliktad! – the extinction of civil action. case.
Is the criminal action also extinguished? NO. “A
final judgment rendered in a civil action Q: What is a prejudicial question?
absolving the defendant from civil liability is not A: A prejudicial question is that arising in the
a bar to a criminal action against the defendant.” civil case but which is so intimately connected
with the issues involved in the criminal case as to
Now, what is new here is the last clause – “for be determinative of the innocence or guilt of the
the same act or omission subject of the civil accused. (Mendiola vs. Macadaeg, February 27,
action” – because for all you know, the evidence 1961)
submitted in civil case might be incomplete and
the government has better evidence in the So the resolution of the civil action will
criminal action. determine the guilt or innocence of the accused in
the criminal case. The guilt or innocence of the
accused will depend on the outcome of the issue
SEC 6. Suspension by in the civil case kaya paunahin natin ang civil.
reason of prejudicial
question. – A petition for
Q: How do you determine whether a question
suspension of the criminal
action based upon the is prejudicial?
pendency of a prejudicial A: The elements of a prejudicial question are
question in a civil action found in Section 7:
may be filed in the office 1. the previously instituted civil action
of the prosecutor or the involves an issue similar or intimately
court conducting the related to the issue raised in the
preliminary investigation. subsequent criminal action, and
When the criminal action 2. the resolution of such issue determines
has been filed in court whether or not the criminal action
for trial, the petition to
may proceed.
suspend shall be filed in
the same criminal action
at any time before the Q: What will happen to the criminal case filed
prosecution rests. (6a) in the court?
A: It will be suspended. The accused will have
SEC. 7. Elements of to file a motion for the suspension of the
prejudicial question. – proceeding.
The elements of a
prejudicial questions are: For example, Rod is accused of bigamy for
(a) the previously marrying twice. However, there is a civil case also
instituted civil action pending where the issue is whether his first
involves an issue similar
marriage is valid or not. Kung valid yon, patay
or intimately related to
the issue raised in the ka! – bigamy! Kung void naman yun, there is no
subsequent criminal bigamy.
action, and (b) the
resolution of such issue
determines whether or not
PEOPLE vs. ARAGON
the criminal action may
proceed. (5a) 94 Phil. 357
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 50
FACTS: Pches contracted a second
marriage with Cholo, a married man.
The latter subsequently married Thea,
the second girl. Cholo was prosecuted
for bigamy. Thea, the second wife filed
an action to declare her marriage as
defective because of the force
employed against her by Cholo. And,
even if his first marriage is not valid,
sabi niya (Thea), yung akin ay
voidable pa rin because my consent
was secured through force or
intimidation.
Sabi naman ni Cholo, kung ganun,
it is prejudicial. We will have to wait
for the result of that case filed by the
second wife (Thea) whether really I
used force or intimidation to get her
consent. So the case of bigamy should
not be tried.
HELD: Cholo is wrong because it
was him, who is accused of bigamy,
who employed the force. Cholo cannot
use his own malfeasance to defeat the
action based on the criminal act. Ikaw
and nag-gawa ng force tapos you use
the force to suspend the criminal case?
Di puwede yan! There is something
wrong in that situation.
But assuming it is Thea who is accused of
bigamy for contracting a second marriage with
the man. And the woman says, “It is true pero
pinilit niya ako. Ayoko man ba!” So she filed an
action to declare the second marriage defective on
the ground of vitiated consent. Ayan! Prejudicial
yan because she is the victim [of force and
intimidation]. Really, if her second marriage was
obtained without her consent, how can she be
guilty of bigamy? Yan! Pwede yan!
CASE: (decided by Court of Appeals) A
criminal case was filed against Kenneth for
forcible abduction with rape. While the criminal
case was pending, there was a supposed marriage
between him and his victim (Hannah) para ma-
extinguish ang criminal liability ni Kenneth. But
Hannah filed a case to declare the marriage as
null and void. Question: Will the pendency of the
civil case for nullity of marriage filed by Hannah
be considered as prejudicial question to
determine whether the forcible abduction case
will proceed to the SC?
RULING: According to the CA, YES because
of this argument: suppose it is proven that the
marriage between the Kenneth and the Hannah is
null and void, therefore, the criminal liability of
Kenneth for forcible abduction with rape cannot
be extinguished because the marriage is a false
one. However, if it turned out that the marriage is
really valid, then the criminal case for abduction
will definitely be extinguished.
CASE: This one is squatting. André was
accused under the anti-squatting law for
occupying the property of Eumir. In another civil
case, the issue is ownership of the same property
between André and Eumir. They are quarreling
as to who is really the owner. Here, kailangan
muna matulog ang criminal case. Depende yan
kasi kung sinong manalo sa civil case. How can
you be a squatter if it turns out that you are the
owner of property. So it is considered as
prejudicial question.
The last point to consider here:
Q: Can you raise a prejudicial question as a
ground to suspend the preliminary investigation
before the fiscal’s office? Or, does the issue of
prejudicial question only applicable when the
case reaches the court?
A: Prejudicial question can be raised as a
ground to suspend a preliminary investigation.
Section 6 says, “a petition for suspension of the
criminal action based upon the pendency of a
prejudicial question in a civil action may be filed
in the office of the prosecutor or the court
conducting the preliminary investigation.”
Of course, when the criminal action has been
filed in court, the petition for suspension must be
filed in the same criminal action.
The first case where the SC said that
prejudicial question can be raised even in the
preliminary investigation was first laid down in
the 1940 case of DE LEON VS. MABANAG (72
Phil. 202).
However in 1962, the SC had a change of
mind in the case of DASALLA VS. CITY
ATTORNEY, (5 SCRA 193) where the SC said, the
suspension on the ground of prejudicial question
only applies when the case is already in court but
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 51

not where the case is still under preliminary and the respondent is probably
guilty thereof, and should be
investigation. The ruling in Mabanag is held for trial.
abandoned. The Dasalla ruling was reiterated in Except as provided in
the case of FALGUI VS. PROVINCIAL FISCAL OF section 7 of this Rule, a
preliminary investigation is
PAMPANGA, 62 SCRA 462. required to be conducted before
the filing of a compliant or
However, when the 1985 rules were enacted, information for an offense
where the penalty prescribed by
you will notice in Section 6 that the issue of law is at least four (4) years,
prejudicial question may be raised in the office of two (2) months and one (1) day
the prosecutor or the judge conducting the without regard to the fine.
(1a)
preliminary investigation. That means the
resurrection of the Mabanag ruling in 1940 and the
Alright. We will now go to Preliminary
abandonment of the subsequent cases of Dasalla
Investigation. This is one of the features of the
and Falgui, Jr. So binalik nila ang Mabanag.
inquisitorial system of criminal procedure. The
government is the boss. The purpose is for
determining whether there is probable cause, not
guilt or innocence of the accused, because what is
probable cause to you may not be probable cause
sa akin. That is why you can see the fiscal as a
very powerful person in the government. He
could say that there is probable case or there is
none. Depende kung anong gusto niya.

So, the government through the investigating

officer will decide whether there is a case or no
case. He will first conduct an investigation and if
he believes that there is a probable cause, then he
will prepare a resolution recommending to this
superior that the respondent be indicted in court.

The purpose of preliminary investigation is to

secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from
an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and
also to protect the state from useless and
expensive trials. (Marcos vs. Cruz, 68 Phil. 96;
Hashim vs. Boncan, 71 Phil. 216)

Q: Is Preliminary Investigation required in all

criminal cases?
A: Under the new rules, it is required when
the crime for which the respondent is charged
Rule 112 carries a penalty of at least four (4) years, two (2)
PRELIMINARY months, and one (1) day.
INVESTIGATION
Q: What happen if a case is filed in court
SECTION 1. Preliminary without preliminary investigation? Can the
investigation defined; when accused file a motion to quash the information on
required.– Preliminary
investigation is an inquiry or
the ground of absence of a preliminary
proceeding to determine whether investigation?
there is sufficient ground to A: Of course there is no question that there is
engender a well-founded belief
that a crime has been committed a denial of a right. However, if there is an
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 52
irregularity, that is not a ground for dismissal. An
information cannot be dismissed because there
was no preliminary investigation. The procedure
is for the court to suspend the proceedings and
refer the matter back to the proper officer for
preliminary investigation (People vs. Oliveria, 67
Phil. 427; People vs. Manlapas, L-17993, August
24, 1962)
Q: Who has the discretion whether to
prosecute or not to prosecute?
A: The public prosecutor. That is why he is a
powerful officer. He exercises quasi-judicial
function because he is the one to determine
whether to file a case against you or not. He has
the authority to file or the authority to dismiss.
Q: Can the discretion of a public prosecutor
be controlled? Can you file a petition for
mandamus to compel a public prosecutor to file a
case?
A: General Rule: The public prosecutor cannot
be compelled by mandamus to prosecute a case
because it is discretionary eh! Maybe you can
prove grave abuse of discretion. Maybe the
probable cause is very, very clear or obvious, then
ayaw pa nyang i-file, ayan na!
Q: What are the remedies of the offended
party if a fiscal refuses to file a case even when
there is a sufficient evidence n which action may
be taken?
A: There are three (3) possible remedies:
1. He may take up the matter
with the Secretary of the Justice
who may then take such
measures as may be necessary
in the interest of justice; or to
his superior officer, the
Regional State Prosecutor;
2. He may also file with the
proper authorities or court
criminal or administrative
charges against the fiscal. That
is what you call prevericacion in
the Revised Penal Code;
3. He may file a civil action for
damages under Article 27,
New Civil Code.
There are other cases where the Supreme
Court (SC) commented on this aspect about the
quasi-judicial power of the public prosecutor. In
the case of GUIAO VS. FIGUEROA (94 Phil.
1018), the SC said that the prosecution, as an
exception, may be compelled by mandamus if he
abuses his discretion and refuses to include a
person as a co-accused against whom there
appears to be at least a prima facie evidence. That
is grave abuse of discretion. However, this
extraordinary writ is available only if the petition
shows that he has first exhausted all remedies in
the ordinary course of law such as a motion filed
with the trial court for the indictment of the
person or persons excluded by the prosecutor.
SANCHEZ vs. DEMETRIOU
November 9, 1993
HELD: “The decision of the
prosecutor may be reversed or
modified by the Secretary of Justice or
in special cases by the President of the
Philippines. But even this Court
cannot order the prosecution of a
person against whom the prosecutor
does not find sufficient evidence to
support at least a prima facie case. The
courts try and absolve or convict the
accused but as a rule have no part in
the initial decision to prosecute him. “
“The possible exception is where
there is an unmistakable showing of a
grave abuse of discretion that will
justify judicial intrusion into the
precincts of the executive. But in such
a case the proper remedy to call for
such exception is a petition for
mandamus, not certiorari or
prohibition.”
Let’s go back in the case of
TEEHANKEE JR. vs. MADAYAG
March 6, 1992
FACTS: Here, Claudio Teehankee,
Jr. was originally charged for the
crime of frustrated murder for
shooting Hultman na na-comatose for
how many months. In the course of
the trial, Hultman died. The
prosecution sought to change the
information from frustrated murder to
consummated murder. Teehankee Jr.
questioned the new charge for lack of
preliminary investigation thereon .
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 53

There are three (3) questions to be So you are not prejudiced because
answered here: the same defense available to you is
still available to you now.
ISSUE #1: Was there an amendment
of the information or substitution when ISSUE #3: Is there a need of a
the information was changed from preliminary investigation on the new
frustrated murder to consummated charge?
murder? HELD: No need because you have
HELD: There is an amendment. not changed the crime. If you change
“There is an identity of offenses the crime or when there is
charged in both the original and the substitution, kailangan ng preliminary
amended information [murder pa investigation. Since it is only a formal
rin!]. What is involved here is not a amendment, preliminary investigation
variance of the nature of different is unnecessary. “The amended
offenses charge, but only a change in information could not conceivably
the stage of execution of the same have come as a surprise to petitioner
offense from frustrated to for the simple and obvious reason that
consummated murder. This being the it charges essentially the same offense
case, we hold that an amendment of as that charged under the original
the original information will suffice information. Furthermore, as we have
and, consequent thereto, the filing of heretofore held, if the crime originally
the amended information for murder charged is related to the amended
is proper.” charge such that an inquiry into one
would elicit substantially the same
ISSUE #2: What kind of facts that an inquiry into the other
amendment? Formal or substantial? would reveal, a new preliminary
HELD: Formal. “An objective investigation is not necessary.”
appraisal of the amended information
for murder filed against herein
petitioner will readily show that the SEC. 2. Officers authorized
to conduct preliminary
nature of the offense originally investigations. –The following
charged was not actually changed. may conduct preliminary
Instead, an additional allegation, that investigations:
(a) Provincial or City
is, the supervening fact of the death of Prosecutors and their
the victim was merely supplied to aid assistants;
the trial court in determining the (b) Judges of the Municipal
Trial Courts and Municipal
proper penalty for the crime [So it is Circuit Trial Courts;
still murder.]. That the accused (c) National and Regional
committed a felonious act with intent State Prosecutors; and
(d) Other officers as may be
to kill the victim continues to be the authorized by law.
prosecution's theory. There is no Their authority to conduct
question that whatever defense herein preliminary investigations
shall include all crimes
petitioner may adduce under the cognizable by the proper court
original information for frustrated in their respective territorial
murder equally applies to the jurisdictions. (2a)

amended information for murder.”

So halimbawa sabihin ng Q: Going back to Rule 110, Section 1, how is a
prosecutor: “You shot Hultman who criminal action instituted?
almost died.” Teehankee Jr.: “Wala man A: Read Section 1, Rule 110:
ako du’n ba! I was at home asleep!” Alibi
SECTION 1. Institution of
ang defense niya ba. Now, namatay si criminal actions.– Criminal
Hultman. Ano man ang depensa mo? actions shall be instituted as
Mau man gihapon: “Wala man ako follows:
(a) For offenses where a
du’n!” preliminary investigation is
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 54

required pursuant to section 1 SEC. 3. Procedure. – The

of Rule 112, by filing the preliminary investigation shall
complaint with the proper be conducted in the following
officer for the purpose of manner:
conducting the requisite (a) The complaint shall
preliminary investigation. state the address of the
respondent and shall be
accompanied by the affidavits
of the complainant and his
Q: Who are those proper officers? witnesses, as well as other
A: They are the officers authorized to conduct supporting documents to
preliminary investigation and they are establish probable cause. They
shall be in such number of
mentioned in Section 2: copies as there are
1. Provincial, city prosecutors and their respondents, plus two (2)
copies for the official file.
assistants;
The affidavits shall be
2. Judges of the MTC, MCTC; subscribed and sworn to before
3. Other officers as may be authorized by any prosecutor or government
official authorized to
law to conduct preliminary administer oath, or, in their
investigation. absence or unavailability,
before a notary public, each of
whom must certify that he
An example of “Other officers as may be
personally examined the
authorized by law to conduct preliminary affiants and that he is
investigation” is the Ombudsman. In the case of satisfied that they voluntarily
UY VS. SANDIGANBAYAN (312 SCRA 77 executed and understood their
affidavits.
[August 9, 1999]), the Ombudsman and his (b) Within ten (10) days
deputies are only authorized to conduct after the filing of the
complaint, the investigating
preliminary investigation of public officers in
officer shall either dismiss it
cases which are falling within the original if he finds no ground to
jurisdiction of the Sandiganbayan (SB).So even if continue with the
investigation, or issue a
the crime is a violation of the Anti-Graft law, or a subpoena to the respondent
crime committed by a public officer in relation to attaching to it a copy of the
his office, if he is below Grade 27, the proper complaint and its supporting
affidavits and documents.
court is not the SB, but the MTC or RTC. Before The respondent shall have
kasi, the original SC interpretation of the the right to examine the
Ombudsman law as laid down in the first case of evidence submitted by the
complainant which he may not
DELOSO VS. DOMINGO (November 21, 1990), is have been furnished and to copy
that, all crimes committed by public officers them at his expense. If the
should be investigated by the Ombudsman. evidence is voluminous, the
complainant may be required to
specify those which he intends
HOWEVER, Ombudsman Desierto filed a to present against the
Motion for Further Clarification in the SC in respondent, and these shall be
made available for examination
relation to the case of UY where I think the or copying by the respondent at
Ombudsman is trying to convince the SC to his expense.
change its mind because it is practically making Objects as evidence need not
be furnished a party but shall
that office a useless office. Now, SC resolved to be made available for
consider the same. Therefore the ruling in UY is examination, copying, or
reversed in a SC resolution (dated March 20, 2001 photographing at the expense of
the requesting party.
[G.R. 105965-70]) where the SC went back to its (c) Within ten (10) days
original ruling that the Ombudsman is from receipt of the subpoena
authorized to conduct preliminary investigation with the complaint and
supporting affidavits and
and to prosecute all criminal cases involving documents, the respondent shall
public officers and employees, not only those submit his counter-affidavit
within the jurisdiction of the Sandiganbayan, but and that of his witnesses and
other supporting documents
those within the jurisdiction of the regular courts relied upon for his defense.
as well. So take note of that. The counter-affidavits shall be
subscribed and sworn to and
certified as provided in
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 55

paragraph (a) of this section, the ten (10) day period, the
with copies thereof furnished
by him to the complainant. The investigating office shall resolve the
respondent shall not be allowed complaint based on the evidence
to file a motion to dismiss in presented by the complainant.”
lieu of a counter-affidavit.
(d) If the respondent cannot 4. paragraph [e]. What is new is the 2nd
be subpoenaed, or if paragraph, “the hearing shall be held
subpoenaed, does not submit within 10 days…” Actually here, tapos
counter-affidavits within the
ten (10) day period, the na ang affi-affidavits. But if you want
investigating office shall to clarify something, you can call the
resolve the complaint based on witnesses for clarificatory questioning,
the evidence presented by the
complainant. pero he has a deadline to do it – 10
(e) The investigating days.
officer may set a hearing if
there are facts and issues to
be clarified from a party or a In the case of
witness. The parties can be
present at the hearing but TATAD vs. SANDIGANBAYAN
without the right to examine or 159 SCRA 70, March 21, 1988
cross-examine. They may,
however, submit to the
investigating officer questions FACTS: The preliminary
which may be asked to the party investigation lasted for 3 years. So
or witness concerned.
The hearing shall be held Tatad questioned the information.
within ten (10) days from
submission of the counter-
ISSUE #1: Is the 10-day period to
affidavits and other documents
or from the expiration of the issue a resolution mandatory or
period for their submission. It directory?
shall be terminated within five
(5) days.
HELD: “The 10-day period fixed
(f) Within ten (10) days by law is merely “directory,” yet, on
after the investigation, the the other hand, it can not be
investigating officer shall
determine whether or not there
disregarded or ignored completely,
is sufficient ground to hold with absolute impunity. It certainly
the respondent for trial. (3a) can not be assumed that the law has
included a provision that is
deliberately intended to become
Q: What is the procedure for Preliminary meaningless and to be treated as a
Investigation? dead letter.” So all of the information
A: You read Section 3 step by step. Actually filed must be dismissed for violation
it’s a battle of affidavits eh. It is the same as the of the right for speedy trial.
old rules. Anyway I’ll just mention the changes
no: ISSUE #2: The government
1. In 2nd paragraph of [b] “The contended that a total lack of
respondent shall have the right to preliminary investigation is not a
examine the evidence submitted by ground for dismissing an information,
the complainant which he may not how come the delay in terminating a
have been furnished and to copy them preliminary investigation becomes
at his expense.” now a ground for dismissal?
2. paragraph [c]. What is new here is the HELD: “It has been suggested that
last sentence – “The respondent shall the long delay in terminating the
not be allowed to file a motion to preliminary investigation should not
dismiss in lieu of a counter-affidavit.” be deemed fatal, for even the complete
So you can file your counter-affidavit. absence of a preliminary investigation
Do not file a motion to dismiss; does not warrant dismissal of the
3. “[d] If the respondent cannot be information. True — but the absence
subpoenaed, or if subpoenaed, does of a preliminary investigation can be
not submit counter-affidavits within corrected by giving the accused such
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 56
investigation. But an undue delay in
the conduct of a preliminary
investigation can not be corrected, for
until now, man has not yet invented a
device for setting back time.”
SANTIAGO vs. GARCHITORENA
December 2, 1993
FACTS: Anti-graft charges were
filed against Miriam Defensor-
Santiago when she was still the
Immigration Commissioner. Santiago
raised this issue (on delay) because
the offense was allegedly committed
on or about October 17, 1988 and the
information was filed only on May 9,
1991 or almost 3 years later. The
amended information was filed only
on December 8, 1992 or 4 years later.
So following the Tatad ruling they
shall be dismissed.
HELD: “[Santiago] cannot
complain that her constitutional rights
to due process were violated by reason
of the delay in the termination of the
preliminary investigation. Tatad v.
Sandiganbayan, 159 SCRA 70 [1988] is
inapplicable to petitioner's case. In
Tatad, there indeed was an
unexplained inaction on the part of the
public prosecutors inspite of the
simplicity of the legal and factual
issues involved therein. In the case at
bench, there was a continuum of the
investigatory process but it got snarled
because of the complexity of the issues
involved. “
“We note that [Santiago] had
previously filed two petitions before
us involving 2 criminal cases.
Petitioner has not explained why she
failed to raise the issue of the delay in
the preliminary investigation and the
filing of the information against her in
those petitions. A piece-meal
presentation of issues, like the
splitting of causes of action, is self-
defeating.” So it is like splitting your
causes of action working against you.
Yaan!
SOCRATES vs. SANDIGANBAYAN
253 SCRA 773, February 20, 1996
NOTE: I think Socrates was a
governor of Palawan. He was also
facing cases in the Sandiganbayan
where he invoked the Tatad ruling.
HELD: “In the application of the
constitutional guaranty of the right to
speedy disposition of cases, particular
regard must also be taken of the facts
and circumstances peculiar to each
case. It is palpably clear that the
application of the Tatad doctrine
should not be made to rely solely on
the length of time that has passed but
equal concern should likewise be
accorded to the factual ambiance and
considerations. It can easily be
deduced from a complete reading of
the adjudicatory discourse in Tatad
that the three-year delay was
specifically considered vis-a-vis all the
facts and circumstances which
obtained therein.”
So you just don’t consider the time element.
You must also consider the facts. Panahon ni
Marcos yung kay Tatad eh.
SERVANTES vs.
SANDIGANBAYAN
307 SCRA 149, May 18, 1999
NOTE: The Tatad ruling was
applied in this case.
FACTS: Here, Elpidio Servantes
was charged for violation of Section
3(e) of the Anti-Graft law. It took the
special prosecutor six (6) years from
the filing of the initiatory complaint
before he decided to file an
information for the offense in the
Sandiganbayan. Servantes filed a
motion to quash for violation of the
right to speedy disposition of the case.
Special prosecutor tried to justify the
delay in the resolution of the
complaint by stating that no political
motivation appears in the prosecution
of the case in apparent reference in the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 57

case of Tatad because in the case of officer shall either dismiss it

if he finds no ground to
Tatad there was political motivation continue with the
dun eh kaya na-delay. investigation, or issue a
Special Prosecutor: “Servantes here subpoena to the respondent
attaching to it a copy of the
was insensitive to the implications and complaint and its supporting
contingencies thereof by not taking affidavits and documents.
any step whatsoever to accelerate the The respondent shall have
the right to examine the
disposition of the matter.” Meaning, 6 evidence submitted by the
years anong ginawa mo? Hindi ka complainant which he may not
man nagreklamo! You did not file a have been furnished and to copy
them at his expense. If the
motion to hurry up. So you are evidence is voluminous, the
estopped. complainant may be required to
specify those which he intends
to present against the
HELD: “We find Servantes’ respondent, and these shall be
contention meritorious. He was made available for examination
deprived of his right to speedy or copying by the respondent at
his expense.
disposition of the case, a right Objects as evidence need not
guaranteed by the Constitution. We be furnished a party but shall
cannot accept special prosecutor’s be made available for
examination, copying, or
ratiocination. It is the duty of the photographing at the expense of
prosecutor to speedily resolve the the requesting party.
complaint as mandated by the
Constitution regardless of whether There is no mention that after the counter-
Servantes did not object to the delay affidavit, the complainant can also file a reply-
although the delay was with his affidavit. There is nothing which says that it
acquiescence provided it was not due cannot be done, there is nothing which says that
to causes directly attributable to him.” it can be done. Well, my position is, since it is not
So the mere fact that he was not prohibited, try it. Anyway wala mang bawal ba.
complaining is not a factor. What is
the factor is when the delay was Q: Going back to paragraph (b) when the
caused by him. Yaan! respondent is subpoenaed, he is supposed to file
his counter-affidavit. Paano kung di siya ma-
subpoena or even if subpoenaed he does not
I know a case decided here during the time of submit his counter-affidavit?
former deputy Ombudsman Delpacio(?) when he A: The investigating officer shall resolve the
was still here in Davao. For more than 4 years the complaint based on the evidence presented by the
preliminary investigation has not been complainant.
terminated. The respondent filed a mandamus
direct to the SC to compel the dismissal of his
case citing Tatad case. With this mandamus, the MERCADO vs. COURT OF APPEALS
SC required the Ombudsman to comment. So July 5, 1995
what the Ombudsman did, pinaspasan niya! So
he came out with a resolution immediately – a HELD: “The New Rules on
resolution to file. Then he answered the SC: “I Criminal Procedure does not require
already terminated the preliminary investigation in as a condition sine qua non to the
fact there is now a resolution to file. Cured na! There is validity of the proceedings [in the
no more delay.” Sabi ng SC: “Hindi na puwede yan! preliminary investigation] the
i-dismiss mo na!” presence of the accused for as long as
efforts to reach him were made, and
an opportunity to controvert the
Let’s go back to paragraph [b]: evidence of the complainant is
accorded him. The obvious purpose of
(b) Within ten (10) days the rule is to block attempts of offenses
after the filing of the
complaint, the investigating
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 58

by hiding themselves or by employing Department of Justice may

prescribe or motu propio, the
dilatory tactics." Secretary of Justice reverses
or modifies the resolution of
the provincial or city
SEC. 4. Resolution of prosecutor or chief state
investigating prosecutor and prosecutor, he shall direct the
its review. – If the prosecutor concerned either to
investigating prosecutor finds file the corresponding
cause to hold the respondent information without conducting
for trial, he shall prepare the anther preliminary
resolution and information. He investigation, or to dismiss or
shall certify under oath in- move for dismissal of the
the information that he, or as complaint or information with
shown by the record, an notice to the parties. The same
authorized officer, has rule shall apply in preliminary
personally examined the investigations conducted by the
complainant and his witnesses; officers of the Office of the
that there is reasonable ground Ombudsman. (4a)
to believe that a crime has
been committed and that the
accused is probably guilty
thereof; that the accused was The investigating prosecutor after the
informed of the complaint and preliminary investigation will now issue a
of the evidence submitted resolution to be approved by his superior
against him; and that he was
given an opportunity to submit recommending the filing or dismissal of the case.
controverting evidence. If he finds probable cause to hold the respondent
Otherwise, he shall recommend for trial, he shall prepare the resolution and
the dismissal of the complaint.
Within five (5) days from information and he will certify under oath that
his resolution, he shall he, or as shown by the record, an authorized
forward the record of the case officer, has personally examined the complainant
to the provincial or city
prosecutor or chief state and his witnesses that there is a reasonable
prosecutor, or to the Ombudsman ground to believe that a crime has been
or his deputy in cases of committed that the accused is probably guilty
offenses cognizable by the
Sandiganbayan in the exercise thereof, that the accused was informed of the
of its original jurisdiction. complaints and of the evidence submitted against
They shall act on the him and that he was given opportunity to submit
resolution within ten (10) days
from their receipt thereof and controverting evidence. That is a standard form
shall immediately inform the in the information filed by the prosecutor.
parties of such action.
No complaint or information
may be filed or dismissed by an Q: Suppose the prosecutor failed to make that
investigating prosecutor certification in the information, is the information
without the prior written
valid or defective?
authority or approval of the
provincial or city prosecutor A: It is still VALID. “Notwithstanding the
or chief state prosecutor or absence in the information of a certification as to
the Ombudsman or his deputy.
Where the investigating
the holding of a preliminary investigation, the
prosecutor recommends the information is nonetheless considered valid for
dismissal of the complaint but the reason that such certification is not an
his recommendation is
disapproved by the provincial
essential part of the information itself and its
or city prosecutor or chief absence cannot vitiate it as such.” (Alvizo vs.
state prosecutor or the Sandiganbayan, 220 SCRA 45)
Ombudsman or his deputy on the
ground that a probable cause
exists, the latter may, by Q: After that, what will he do? To whom will
himself, file the information he forward his resolution?
against the respondent, or
direct another assistant
A: To the provincial or city prosecutor or chief
prosecutor or state prosecutor state prosecutor depending on who is conducting
to do so without conducting the preliminary investigation;
another preliminary
investigation.
If upon petition by a proper Q: Is the resolution of the prosecutor
party under such rules as the appealable?
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 59
A: YES. It is appealable to the Secretary of
Justice. The last paragraph of Section 4 gives the
power of review to the Department of Justice –
that is, if the case originally started in the Fiscal’s
office.
The DOJ can reverse or modify resolution of a
city or provincial prosecutor and the procedure
for review is governed not by the Rules of Court,
but by a department order. There is also a
procedure there for appeal or review by the DOJ
(2000 DOJ Rules on Appeal, July 3, 2000).
One of the cases we have to remember here is
the leading case of CRESPO VS. MOGUL, (June
30, 1987). Here are some points discussed in this
case:
Q: What happens if the DOJ sustains the
appeal?
A: It will reverse the resolution of the
prosecutor.
Example:
PROSECUTOR: “Dismiss! The case
should not be filed.”
DOJ: “Reversed! You file the case.”
Walang magawa ang fiscal diyan. He must
file the case because that is the order of his
superior. What if:
Example:
PROSECUTOR: “There is probable
cause. I will file the case.”
RESPONDENT/ACCUSED:
“Appeal!”
DOJ: “I will reverse. You are hereby
ordered not to file.”
Q: E kung na-file na?
A: Under the new rules, the fiscal is ordered
to file a motion to dismiss the case in court.
There is no problem if the resolution of the
fiscal is to dismiss and then ang DOJ order is “to
file.” Ang mahirap is if the resolution of the fiscal
is to file and na-file na, and then sabi ng DOJ, “ah
walang probable cause – do not file!” Prosecutor:
“Eh, na-file na?” DOJ: “Okey, you move to dismiss
the case.”
So the fiscal will file a motion to dismiss. His
argument will be, there is no probable cause
according to DOJ – my superior and the Secretary
of Justice has ordered me to move for the
dismissal of the case. Eh kung sabihin ng court:
COURT: “Ayoko! Tuloy ang kaso!”
[ay naloko na!!]
FISCAL: “Sorry Your Honor but that is
the order of my superior. I cannot go
against the DOJ.”
COURT: “Superior mo, hindi akin! It
is not my superior! Ituloy ang kaso!
Yaan!! That was the issue in the case of
CRESPO. And the SC ruled that:
CRESPO vs. MOGUL
June 30, 1987
HELD: The power of the fiscal is
practically absolute whether to file or
not to file. But once the case is filed in
court, the power now belongs to the
judge and he is the one who will
determine whether to proceed or not
to proceed. The court will be the one
to decide because control over the case
is already shifted in the court. The
court now has the absolute power and
once the court tell the fiscal ‘you
proceed,’ then the fiscal has to proceed.
The latter should not shirk from his
responsibility of representing the
People of the Philippines. So the
absolute power of the fiscal ends upon
the filing of the case in court.
“As an advise [advise lang, hindi
naman order], that in order to avoid
this unpleasant situation where the
opinion o the Secretary of Justice is not
to proceed but the opinion of the judge
is to proceed, and the fiscal is caught
in the middle [naipit ba!], when the
case is already filed in court, as much
as possible huwag ka (DOJ) ng
makialam. The Secretary of Justice as
much as possible, should not review
the resolution of the fiscal to file when
the case is already filed in court to
avoid this unpleasant situation
because it will really cause a conflict of
opinion between the two (2) offices.”
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 60

There are other cases where the SC elaborated Within thirty (30) days from
receipt of the records, the
on this but the leading case is CRESPO. I will just provincial or city prosecutor,
cite to you some of these cases where the SC had or the Ombudsman or his deputy,
something to comment about this issue as we as the case may be, shall
review the resolution of the
have no more time to go over them one by one: investigating judge on the
existence of probable cause.
1. REPUBLIC VS. SUNGA (162 Their ruling shall expressly
and clearly state the facts and
SCRA 191); the law on which it is based
2. MARCELO VS. CA (235 SCRA 39); and the parties shall be
3. PEOPLE VS. CRUZA (237 SCRA furnished with copies thereof.
They shall order the release of
410); an accused who is detained if
4. MARTINEZ VS. CA (237 SCRA no probable cause is found
575); against him. (5a)
5. MOSQUERA VS. PANGANIBAN
(258 SCRA 473); Section 5 applies to preliminary investigations
6. LEDESMA VS. CA, 278 SCRA 658 conducted by MTC judges. Remember, aside
(September 5, 1997). from fiscal, MTC judges are also allowed to
conduct preliminary investigations. But in Metro
And based on some of these cases in relation Manila and chartered cities, MTCC judges do not
to reinvestigation, the SC held that once the case is conduct preliminary investigations – everything
already in court and the accused would like to is given to the state prosecutor.
have his case reinvestigated, the court must
agree. There must always be the concern of the What happens if the judge or the MTC judge
court because of the absolute control is already in will conduct a preliminary investigation? The
the court once the case is filed. And take note that judge will conduct a preliminary investigation.
there is no double jeopardy in preliminary Ang kanya, there is a probable cause or there is
investigation. no probable cause, either way he must forward
his resolution to the provincial prosecutor. The
provincial prosecutor will be the one to decide.
SEC. 5. Resolution of
investigating judge and its Q: Do you mean to tell me the provincial
review.– Within ten (10) days
after the preliminary prosecutor will conduct again another
investigation, the preliminary investigation?
investigating judge shall
transmit the resolution of the
A: NO. He will just review the findings of the
case to the provincial or city judge. Maybe the provincial fiscal will simply
prosecutor, or to the Ombudsman adop the finding of the MTC judge.
or his deputy incases of
offenses cognizable by the
Sandiganbayan in the exercise Q: Suppose sabi ng fiscal, “Di ako kuntento. I
of its original jurisdiction, am not satisfied with the preliminary
for appropriate action. The
resolution shall state the
investigation by that judge. I will conduct another
findings of facts and the law preliminary investigation” Puwede ba yan?
supporting his action, together A: YES. The provincial prosecutor has 100%
with the record of the case
which shall include: (a) the
control. He may adopt the finding and just follow
warrant, if the arrest is by the recommendation filed, or he may conduct his
virtue of a warrant; (b) the own preliminary investigation.
affidavits, counter-affidavits
and other supporting evidence
of the parties; (c) the Q: What happens if his decision is different
undertaking or bail of the from what the MTC judge believes? Whose
accused and the order for his
release; (d) the transcripts of decision will prevail?
the proceedings during the A: Fiscal’s decision will prevail. He can
preliminary investigation; and reverse the resolution of the MTC judge.
(e) the order of cancellation
of his bail bond, if the
resolution is for the dismissal And in case the respondent has been arrested
of the complaint. while the case is under preliminary investigation
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 61

and detained in jail, according to Section 5, last Incase of doubt on the

existence of probable cause,
paragraph, last sentence, the provincial fiscal the judge may order the
shall order the release of an accused who is prosecutor to present
detained if no probable cause is found against additional evidence within five
(5) days from notice and the
him. This is one instance where the opinion of the issue must be resolved by the
provincial prosecutor prevails over that of the court within thirty (30) days
judge. The fiscal can reverse the findings of the from the filing of the
complaint of information.
judge eh.
x x x x x x
Q: Bakit naman ganun? Why are we giving
the provincial fiscal more power than the MTC Let us picture what happens here. The case is
judge when it comes to preliminary triable by the RTC – so this means, 6 years and 1
investigation? day up. Now, the fiscal conducts a preliminary
A: The reason is simple: who will prosecute investigation. Assuming after finding probable
the case – the judge or the fiscal? Of course, it is cause, he will file information. After that, what
the fiscal. He will be the one to handle the case will happen? The judge may issue a warrant of
and not the judge. arrest to arrest the accused because in his opinion,
there is probable cause to issue the warrant of
Another reason is given by the SC in one case arrest. So that is the situation.
that actually, preliminary investigation is not
really the function of the judiciary. The power to So you will notice that this word – “probable
determine whether to file or not file does not cause” – has many functions. When the fiscal file
belong to the judiciary. “When a preliminary the information, he believes that there was
investigation is conducted by a judge, the judge probable cause – probable cause to file the case.
performs a non-judicial function, as an exception Pagdating sa court, the RTC judge will present
to his usual judicial duties. The assignment of probable cause na naman to issue warrant of arrest.
that function to judges of inferior courts and to a Iba yan eh! Kanya-kanya yan – probable cause to
very limited extent to courts of first instance was file, probable cause to issue warrant. That is why in
dictated by necessity and practical considerations. the case of
Consequently, the findings of an investigating
judge are subject to review by the provincial CASTILLO vs. VILLALUZ
fiscal.” (Castillo vs. Villaluz, March 8, 1989) March 8, 1989

Alright. Let’s go to Section 6 – a very HELD: “The fiscal prevails over

important provision – when warrant of arrest the judge only in the determination of
may be issued. the existence of a probable cause
justify the filing of a complaint or
SEC. 6. When warrant of information. This task is concededly
arrest may issue. – (a) By the
Regional Trial Court. – Within
executive. But the determination of
ten (10) days from the filing probable cause to justify the issuance
of the complaint or of a search warrant or a warrant of
information, the judge shall
personally evaluate the
arrest is the constitutional prerogative
resolution of the prosecutor of the judge and may not be
and its supporting evidence. He withdrawn from him or even only
may immediately dismiss the
case if the evidence on record limited by statute or the Rules of
clearly fails to establish Court. This task is undoubtedly
probable cause. If he finds judicial.”
probable cause, he shall issue
a warrant of arrest, or a “The findings of the fiscal in the
commitment order if the accused preliminary investigation do not
has already been arrested control or foreclose the exercise of the
pursuant to a warrant issued by
the judge who conducted the power conferred personally on the
preliminary investigation or judge under Section 2 of the Bill of
when the complaint or Rights. That power is his alone.”
information was filed pursuant
to section 7 of this Rule.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 62

Q: Now, under the Constitution, before the

RTC judge issued the warrant of arrest because of ISSUE: May a Judge without
probable cause, anong dapat gawin niya? ascertaining the facts through his own
A: He must personally examine the complainant personal determination and relying
and his witnesses to determine whether there is solely on the certification or
probable cause to issue or not to issue a warrant recommendation of a prosecutor that a
of arrest. probable cause exists issue a warrant
of arrest?
How do you interpret the phrase, “personally
examine”? I have to admit that the cases before HELD: In order to clarify this rule
were somehow confusing. There were some case once and for all, the SC went over all
na literal – pag-file mo ng kaso, the RTC judge the cases where this issue kept coming
has to call the complainants, tanong… tanong… back, starting from: US VS. OCAMPO
tanong… to determine the probable cause to issue (18 Phil.); AMARGA VS. ABBAS (98
a warrant. Otherwise if I will not examine them, it Phil.); PLACER VS. VILLANUEVA
is unconstitutional for to issue a warrant. Or in (126 SCRA 463); SULTA VS. CA (143
another case, RTC judge: ‘sabi ng fiscal, may SCRA 228); SOLIVEN VS. MAKASIAR
probable cause to file eh. Tama na yon! I believe (167 SCRA 393); CASTILLO VS.
him. I will now issue the warrant.’ But there are VILLALUZ (171 SCRA 39); PEOPLE
some cases that say na hindi puwede yan because VS. INTING (187 SCRA 798); to
you are giving now to the fiscal the right to PEOPLE VS. DELGADO (189 SCRA
determine your duty under the Constitution. You 725).
cannot do that because the law says you must This is the dilemma: “if a Judge
personally examine. Otherwise, the fiscal is the one has to personally question each
who is determining. complainant and witness or go over
the records of the Prosecutor's
But meron namang mga kaso where the SC investigation page by page and word
said that if we will require the RTC judge to for word before he acts on each of a
personally examine the complainant and his big pile of applications for arrest
witnesses to determine probable cause before warrants on his desk, he may have no
issuing the warrant, he might have no more or more time for his or her more
nothing to do more except to do that. He cannot important judicial functions. At the
anymore try cases, wala na, puro na lang same time, the Judge cannot ignore the
probable cause. So he may not have time clear words of the 1987 Constitution
anymore to do his usual duty. Thus he can rely which requires probable cause to be
on the findings of the fiscal. personally determined by the judge, not
by any other officer or person.”
So this really cause some kind of confusion. “If a Judge relies solely on the
Now, these confusions are now reconciled. There certification of the Prosecutor, he has
are many cases such as ROBERTS VS. CA (the not personally determined probable
PEPSI-COLA “349” tansan case). But the first one cause. The determination is made by
the SC really discussed the issue exhaustively the Provincial Prosecutor. The
was the 1991 case of constitutional requirement has not
been satisfied.”
LIM, SR. vs. FELIX “The Judge does not have to
194 SCRA 292 [1991] personally examine the complainant
and his witnesses. The Prosecutor can
FACTS: The information was filed perform the same functions as a
– information lang and a certification commissioner for the taking of the
by the fiscal that based on the evidence. However, there should be a
investigation, there is probable cause. report and necessary documents
And on the basis of that information supporting the Fiscal's bare
certification, the judge issued a certification. All of these should be
warrant of arrest. before the judge. The judge must go
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 63
beyond the Prosecutor's certification
and investigation report whenever
necessary. He should call for the
complainant and witnesses themselves
to answer the court's probing
questions when the circumstances of
the case so require.”
“We reiterate that in making the
required personal determination, a
judge is not precluded from relying on
the evidence earlier gathered by
responsible officers. The extent of the
reliance depends on the circumstances
of each case and is subject to the
judge's sound discretion. However, (as
happened in the case of Lim) the judge
abuses that discretion when having no
evidence before him, he issues a
warrant of arrest.”
How did the SC reconcile that? When the
fiscal files an information, the judge will require
the fiscal to attach to the information all the
records of the preliminary investigations –
affidavits, counter-affidavits, or other whatever
documents. All the evidence will be submitted to
the judge and he will review them. After reading
them, if the judge is not satisfied that there was
probable cause, he may summon the witnesses.
BUT if he is satisfied, he can issue the warrant
without the need for summoning the witnesses.
He can rely on the affidavits. That is what
personally examined means.
ROBERTS vs. COURT OF
APPEALS
March 5, 1996
FACTS: This is the Pepsi-Cola 349
tansan case. Pag-file ng fiscal, marami,
makapal ang documents. The records
of the case is voluminous. Maraming
nanalo ng 349 nu’n eh. So pag-file,
after 20 minutes the judge issued the
warrant of arrest. The accused
challenged it:
ACCUSED: You did not
determine probable cause.
JUDGE: Bakit? All the
supporting documents are
attached in the information.
ACCUSED: Yes, but how
can you go over them in less
than 20 minutes? You did not
go over them. Ibig sabihin
binasa mo lahat yan within 20
minutes only?
So it is now doubtful that the judge
will go over the entire records within
20 minutes. Ang kapal ng records eh!
HELD: Sabi ng SC: “Eh kung
mabilis pala mag-basa ang judge?
[Ano’ng pakialam mo? Ha!] Ang importante
nandoon ang records!
Now, these issues were further supplemented
by other cases in 1997. The leading case is
HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997
ISSUE: Is it required that
everything that was filed in the fiscal’s
office will really be included? Lahat ba
talaga? Eh kung makapal?
HELD: “It is NOT required that
the complete or entire records of the
case during the preliminary
investigation be submitted to and
examined by the judge. We do not
intend to unduly burden trial courts
by obliging them to examine the
complete records of every case all the
time simply for the purpose of
ordering the arrest of an accused.
What is required, rather, is that the
judge must have sufficient supporting
documents (such as the complaint,
affidavits, counter-affidavits, sworn
statements of witnesses or transcripts
of stenographic notes, if any) upon
which to make his independent
judgment or, at the very least, upon
which to verify the findings of the
prosecutor as to the existence of
probable cause. The point is: he cannot
rely solely and entirely on the
prosecutor’s recommendation.”
Going back to Section 6 (a):
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 64

(a) By the Regional Trial

Court. – Within ten (10) days
from the filing of the ISSUE #1: Does the court have the
complaint or information, the power to require the fiscal to present
judge shall personally evaluate evidence to convince the judge that
the resolution of the
prosecutor and its supporting there is probable cause to issue the
evidence. [This is a new warrant of arrest when the fiscal
sentence:]He may immediately already found probable cause to file
dismiss the case if the
evidence on record clearly the case?
fails to establish probable HELD: YES. The power of the
cause. If he finds probable fiscal is to determine probable cause to
cause, he shall issue a warrant
of arrest, or a commitment file while for the judge is probable
order if the accused has cause to issue the warrant of arrest.
already been arrested pursuant Iba yung iyo, iba rin yung sa akin! You
to a warrant issued by the
judge who conducted the cannot say that simply because you
preliminary investigation or found probable cause, I will follow
when the complaint or you. [We already discussed that
information was filed pursuant
to section 7 of this Rule. [The principle and it is already stated in the
last sentence is also new:]In rules] So, it will be the power of the
case of doubt on the existence judge to inform the prosecutor and to
of probable cause, the judge
may order the prosecutor to require the fiscal to convince him that
present additional evidence there is probable cause to issue the
within five (5) days from
notice and the issue must be
warrant. (now last sentence of Section
resolved by the court within 6 [a])
thirty (30) days from the
filing of the complaint of
information.
ISSUE #1: Since the fiscal refuses
to comply, did the judge act correctly
in ordering the dismissal of the
This brings to my mind one of the leading information?
cases on this issue which was asked in the Bar HELD: NO. This time mali ang
and which I also asked in some examinations judge. If the fiscal does not want to
here. The case of comply with the judge’s order, the
remedy of the judge is not to issue the
AMARGA vs. FISCAL warrant. Ayaw mong sumunod? –
98 Phil. 739 then do not issue the warrant. But do
not dismiss the case because this time
FACTS: The provincial fiscal filed we are already encroaching the power
an information in the CFI (now, RTC). of the prosecutor. (c.f. second sentence
Normally, the judge will issue the of Section 6 [a])
warrant. Nag-alanganin naman ang
judge. What the judge did was to issue
an order requiring the fiscal to appear Now, based on the present rules, we will now
before him and convince him that ask the same questions today.
there is probable cause for the judge to
issue warrant. Eh ayaw ng fiscal, “My Q: Can the judge require the fiscal to present
golly! That is already an insult for me evidence of probable cause in convincing him to
as a quasi-judicial officer! I found issue the warrant of arrest?
probable cause. That is my finding. A: YES. That is the prerogative of the judge.
The judge should believe me because (AMARGA VS. ABBAS)
that is my prerogative.” So ayaw mag-
sunod ng fiscal. Judge, “Ayaw mo ha! Q: If fiscal refuses, has the judge the power to
Okey! Case is dismissed!” dismiss the case?
Remember, there are two (2) A: In the case of Amarga, no. However, under
questions there asked in the bar: Section 6, the judge may immediately dismiss the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 65

case if the evidence on record clearly fails to establish Obviously, this rule does not apply in
probable cause. chartered cities but in municipalities. Sa
probinsiya, for example, the case is murder. That
That is a new sentence, “xxx he may is not triable by MTC but you can file the
immediately dismiss the case xxx” not found in the complaint for murder before the MTC not for the
prior rule. To my mind, that has change the purpose of trial but for the purpose of
answer. While before, the judge may not have the preliminary investigation. That is the difference.
power to dismiss the case if he finds no probable
cause. Right now, the rules says YES because of We already learned that he resolution of the
that new provision, “he may immediately dismiss judge, whether to file or not to file, is ipasa niya
the case if the evidence on record clearly fails to sa Provincial Prosecutor who has the final say.
establish probable cause” even if the fiscal has That’s why the rule says, if his findings and
already found probable cause. In other words, recommendations are affirmed by the provincial
this has changed the ruling in the old case of or city prosecutor, or by the Ombudsman or his
Amarga. deputy, and the corresponding information is
filed, he shall issue a warrant of arrest. However,
Let’s go to Section 6 [b]: (Preliminary without waiting for the conclusion of the
Investigation conducted by MTC judge) investigation, the judge may issue a warrant of
arrest if he finds after an examination in writing
(b) By the Municipal Trial and under oath of the complainant and his
Court. – When required pursuant
to the second paragraph of witnesses in the form of searching questions and
section of this Rule, the answers, that a probable cause exists and that
preliminary investigation of there is a necessity of placing the respondent
cases falling under the
original jurisdiction of the under immediate custody in order not to frustrate
Metropolitan Trial Court, the ends of justice.
Municipal Trial Court in
Cities, Municipal Trial Court,
or Municipal Circuit Trial Let’s compare.
Court may be conducted by
either the judge or the
prosecutor. When conducted by
Q: Does the fiscal have the power to issue
the prosecutor, the procedure warrant of arrest?
for the issuance of a warrant A: NO. His power is to conduct preliminary
of arrest by the judge shall be
governed by paragraph (a) of
investigation and if there is probable cause – File!
this section. When the
investigation is conducted by Q: Who will issue the warrant?
the judge himself, he shall
follow the procedure provided
A: RTC.
in section 3 of this Rule. If
his findings and Pero ang municipal judge, iba eh. The police
recommendations are affirmed by
the provincial or city
will file a complaint for homicide in MTC for
prosecutor, or by the Ombudsman preliminary investigation. Pag-basa ng MTC
or his deputy, and the judge, “aba! Grabe ito! There is probable cause. Pero
corresponding information is
filed, he shall issue a warrant
teka muna, delikado ito baka makawala – arrest him!”
of arrest. However, without So even before the case is filed in the RTC, the
waiting for the conclusion of MTC judge has the power to issue warrant of
the investigation, the judge
may issue a warrant of arrest
arrest.
if he finds after an
examination in writing and That is the difference between the power of
under oath of the complainant
and his witnesses in the form
the MTC judge and the power of the Provincial
of searching questions and Prosecutor. Both of them have the power to
answers, that a probable cause conduct a preliminary investigation in the
exists and that there is a
necessity of placing the province. But the fiscal has no power to issue a
respondent under immediate warrant but the judge has the power to issue
custody in order not to warrant even while the preliminary investigation
frustrate the ends of justice.
is going on. That is why in the province,
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 66

complainants prefer to file sa MTC para issue whether or not the case should be filed in the
dayun ang warrant. RTC.

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

Q: Is it mandatory that every time you file a (b) By the Municipal Trial
Court. – When required pursuant
case in the MTC, the judge will always issue a to the second paragraph of
warrant or arrest? section of this Rule, the
A: NO. Hindi naman sinabi yun because in preliminary investigation of
cases falling under the
order to determine whether a warrant of arrest original jurisdiction of the
will be issued, the judge will conduct the Metropolitan Trial Court,
examination. He will examine in writing under Municipal Trial Court in
Cities, Municipal Trial Court,
oath of the complainant and witnesses in the form or Municipal Circuit Trial
of searching questions and answers, that a Court may be conducted by
probable cause exists and that there is a necessity either the judge or the
prosecutor.
of placing the respondent under immediate
custody in order not to frustrate the ends of
But I was wondering with this issue. This
justice.
happens in places where there is only 1 branch, 1
judge. For example, ako ang judge and the case is
So if you file a case for homicide against
filed before me – preliminary investigation ito ha!
somebody in the municipality; tao na kilala mo;
– 4 years, 2 months and 1 day. There is a probable
mayaman at may malalaking properties; if I’m
cause so I will continue. Now, who will try the
the judge, I will not issue a warrant of arrest.
case? Ako rin di ba? Sabihin ng defense, “Ah wala
Tatakbo ba yan? I don’t think so. I may or may
na. Talo na kami. Bias ka na eh!” Naloko na! This
not issue the warrant but my criterion is: is there
might be a ground for disqualification eh because
a necessity of placing him under immediate
you already found probable cause, chances are
custody in order not to frustrate the end of
dire-diretso na ito – you will convict me, you are
justice? But suppose the accused has no
no longer impartial. This is now the danger
permanent address, ayan! Delikado na yan, baka
because of this new provision.
makawala! I will now issue a warrant of arrest.
Suppose sabihin ng judge, “Hindi man. I
Now, what has changed the picture now is
found probable cause only for the case to proceed
this: there is no question if the case is triable by
to trial but for all you know during the trial, I
the RTC, the MTC judge will conduct a
might find you innocent, not guilty beyond
preliminary investigation in order to determine
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 67

reasonable doubt. Ang criterion ko diyan is committing a crime in the presence of

probable cause man lang – probably you are a peace officer, the fiscal will only
guilty. But when I will try it, it should be guilt conduct an inquest preliminary
beyond reasonable doubt.” Yan ang delikado investigation and there is no need to
dito! Mabuti sana if the fiscal was the one who issue a warrant because the accused is
conducted the preliminary investigation. But also under detention already.
when I am the one who conducted the Normally, what the court there issues
preliminary investigation and then I will also be is a commitment order, just to confirm
one to try the case, there might be complaints of the detention of the accused; and
biases or prejudgment. So there are provisions in
the new rules which might create practical 3. if the accused is charged for an offense
problems. penalized by fine only – di na
kailangan ang warrant of arrest. There
Let’s go to the last portion of Section 6. Let’s are crimes where there is no penalty
read Section 6 [c]: for imprisonment but only fine like
damage to property through reckless
(c) When warrant of arrest imprudence. Based on the new rules,
not necessary. – A warrant of
arrest shall not issue if the there is no need for a warrant, just an
accused is already under order to appear is sufficient.
detention pursuant to a warrant
issued by the municipal trial
court in accordance with
paragraph (b) of this section, SEC 7. When accused lawfully
or if the complaint or arrested without warrant. –
information was filed pursuant When a person is lawfully
to section 7 of this Rule or is arrested without a warrant
for an offense penalized by involving an offense which
fine only. The court shall them requires a preliminary
proceed in the exercise of its investigation, the complaint or
original jurisdiction. (6a) information may be filed by a
prosecutor without need of such
investigation provided an
Normally, when the information is filed in inquest has been conducted in
court, the court issues a warrant of arrest. accordance with existing rules.
In the absence or
However, there are instances when the court need unavailability of an inquest
not issue a warrant of arrest. prosecutor, the complaint may
be filed by the offended party
or a peace officer directly
Q: What are the instances when the court with the proper court on the
need not issue a warrant of arrest? basis of the affidavit of the
A: Under Section 6 [c], the following are the offended party or arresting
officer or person.
instances: Before the complaint or
information is filed, the
1. if the accused is already under person arrested may ask for a
preliminary investigation in
detention pursuant to a warrant accordance with this Rule, but
issued by the MTC in accordance with he must sign a waiver of the
paragraph [b] of Section 6. If the MTC provision of Article 125 of the
Revised Penal Code, as amended,
issues the warrant of arrest and later in the presence of his counsel.
on the cases reaches the RTC because Notwithstanding the waiver, he
there is probable cause, there is no may apply for bail and the
investigation must be
need for the RTC to issue another terminated within fifteen (15)
warrant because there is already a days from its inception.
warrant issued by the MTC. And as a After the filing of the
complaint or information in
matter of fact, the accused has already court without a preliminary
been detained; investigation, the accused may,
within five (5) days from the
time he learns of its filing,
2. when the complaint or information is ask for a preliminary
filed pursuant to Section 7 of this rule. investigation with the same
right to adduce evidence in his
Section 7 – the accused is arrested for
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 68
defense as provided in this
Rule. (7a; sec. 2, R.A. No.
7438)
Section 7 is another important provision. This
is called INQUEST PRELIMINARY
INVESTIGATION, related to Rule 113, Section 5
[a] and [b] on warrantless arrest. Here, there is no
need for preliminary investigation because there
is a deadline for the accused to be detained.
Otherwise the peace officer will be guilty of
arbitrary detention – delay in the delivery.
If we will conduct a preliminary
investigation, that will last for many days. So
what will happen to a person who committed a
crime if we will conduct a regular preliminary
investigation? Well, to avoid this possibility, wala
ng preliminary investigation. The prosecutor will
conduct an INQUEST preliminary investigation
based only on the affidavit of the complainant,
the police maybe, and his witnesses so that the
court may issue a commitment order. With that,
the deadline has been met – you have been
delivered to the proper judicial authorities.
Now, there is a new sentence inserted in
Section 7, first paragraph – “In the absence or
unavailability of an inquest prosecutor, the complaint
may be filed by the offended party or a peace officer
directly with the proper court.” – a very radical
provision.
The normal procedure is: for example, the
offended party or the peace officer will file the
case before the fiscal to inquest preliminary
investigation. And then the fiscal will now file the
information in court let’s say in the RTC.
Q: However, suppose there is no inquest
prosecutor? Or there is an inquest prosecutor but
he is not available, what will happen now to the
case?
A: The new provision says, “the complaint
may be filed by the offended party or a peace
officer directly with the proper court” so that the
accused should be delivered.
Why is this a very radical change? There is no
problem with the MTC because you can file
directly in the MTC. But as a matter of practice,
you cannot file a complaint directly with the RTC.
Everything here is done by information. The RTC
does not entertain complaints filed by the police
or the offended party.
But now, puwede na eh, under this situation
lang: – (1) the accused is arrested without a
warrant and (2) there is the absence or
unavailability of an inquest prosecutor. With that
situations, the new rules now allow a direct filing
of the complaint by the offended party or the
peace officer directly with the proper court even
in the RTC. That is why this is radical change.
Now, whether this is the one or the other, you
cannot deny the fact that the accused is entitled to
a preliminary investigation. You cannot deprive
him of this right. When there is a case filed in
court without preliminary investigation so that he
can be detained indefinitely in which case, he can
ask for a preliminary investigation in accordance
with this rule – but after the case is filed. Baliktad!
Normally, the preliminary investigation
comes before the filing of the case. Dito naman,
filing comes before preliminary investigation –
baliktad! During preliminary investigation, if
there is no probable cause, the complaint will be
dismissed or the fiscal will move to dismiss the
case. But if you insist on that right to preliminary
investigation before filing, ayaw mo ng inquest,
then you must sign a WAIVER in the presence of
your counsel – waiver of your right under Article
125, RPC. Here, while the preliminary
investigation is still going on, you remain under
detention. The second paragraph applies if he
insist on the right to a regular or ordinary
preliminary investigation.
Correlate this with Section 2 [e] of RA 7438 –
Law Protecting Rights of Persons under custody –
i.e. he must be assisted by his counsel. Otherwise
the waiver is not valid.
Now, if there is no insistence, the case will be
filed ahead. After it was filed, you can still ask for
preliminary investigation within 5 days from the
time you learn of the filing of the case. So within 5
days lang, otherwise you are deemed to have
waived your right to preliminary investigation
Note that the SC had ruled that the period of
5 days is NON-EXTENDIBLE – that is absolute.
(PEOPLE vs. CA, 242 SCRA 645). The five-day
period is absolute. After 5 days, you have no
more right to ask for a preliminary investigation.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 69

Take note that the general rule, once you post affidavits and other supporting
documents submitted by the
bail, you are waiving your right to a preliminary complainant within ten (10)
investigation. In PEOPLE VS. CA, if you do not days from its filing.
want to waive your right to preliminary (b) If filed with the
Municipal Trial Court – If the
investigation, then if you post bail, you must complaint or information is
make a reservation. You must say, “I’m posting filed with the Municipal Trial
bail but I’m not waiving my right to preliminary Court or Municipal Circuit
Trial Court for an offense
investigation. In fact, I am asking for it.” In Section 7, covered by this section, the
last paragraph, when the accused post bail for his procedure in section 3 (a) of
provisional release, he is deemed to have waived this Rule shall be observed. If
within ten (10) days after the
his right to preliminary investigation. To avoid filing of the complaint or
the waiver, there must be a previous or information, the judge finds no
simultaneous demand for a preliminary probable cause after personally
evaluating the evidence, or
investigation upon posting of bail bond. after personally examining in
writing and under oath the
SEC. 8. Records. – (a) complainant and his witnesses
Records supporting the in the form of searching
information or complaint. – An questions and answers, he shall
information or complaint filed dismiss the same. He may,
in court shall be supported by however, require the submission
the affidavits and counter- of additional evidence, within
affidavits of the parties and ten (10) days from notice, to
their witnesses, together with determine further the existence
the other supporting evidence of probable cause. If the judge
and the resolution on the case. still finds no probable cause
(b) Record of preliminary despite the additional
investigation. – The record of evidence, he shall, within ten
the preliminary investigation, (10) days from its submission
whether conducted by a judge or or expiration of said period,
a prosecutor, shall not form dismiss the case. When he finds
part of the record of the case. probable cause, he shall issue
However, the court, on its own a warrant of arrest, or a
initiative or on motion of any commitment order if the accused
party, may order the production had already been arrested, and
of the record or any of its hold him for trial. However, if
part when necessary in the the judge is satisfied that
resolution of the case or any there is no necessity for
incident therein, or when it is placing the accused under
to be introduced as an evidence custody, he may issue summons
in the case by the requesting instead of a warrant of arrest.
party. (9a)

Section 8 is just a reiteration of a doctrine that

when the fiscal files an information, he should Section 9 – Cases not requiring a preliminary
back up his certification of probable cause with investigation nor covered by the Rule on
appropriate records. An information with mere Summary Procedure. Obviously, Section 9 talks
certification is not enough. (Lim, Sr. vs. Felix, only of cases (a) cognizable only by MTC; (b) the
supra) penalty does not exceed 4 years 2 months because
even if it is 4 years 2 months 1 day (up to 6 years),
SEC. 9. Cases not requiring it still requires a preliminary investigation under
a preliminary investigation nor
covered by the Rule on Summary
the new rules; and (c) it should not be covered by
Procedure. – (a) If filed with the Rules of Summary Procedure. The coverage of
the prosecutor. – If the summary procedure is up to 6 months penalty.
complaint is filed directly
with the prosecutor involving
an offense punishable by Q: What cases are covered by Section 9?
imprisonment of less than four A: Where the prescribed penalty exceeds 6
(4) years, two (2) months and
one (1) day, the procedure months but not more than 4 years and 2 months.
outlined in section 3(a) of These does not require preliminary investigation
this Rule shall be observed. and also not covered by the summary rules.
The prosecutor shall act on the
complaint based on the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 70

Q: Now, going back to Rule 110. In cases ten (10) days from notice, to determine further the
cognizable by the MTC, how is it instituted? existence of probable cause.” If the judge still finds
A: Section 1, Rule 110: no probable cause despite the additional
evidence, he shall, within ten (10) days from its
SECTION 1. Institution of submission or expiration of said period, dismiss
criminal actions.– Criminal
actions shall be instituted as
the case. When he finds probable cause, he shall
follows: issue a warrant of arrest, or a commitment order
(a) For offenses where a if the accused had already been arrested, and
preliminary investigation is
required pursuant to section 1
hold him for trial. [The next sentence is new
of Rule 112, by filing the again:] However, if the judge is satisfied that there is
complaint with the proper no necessity for placing the accused under custody, he
officer for the purpose of
conducting the requisite
may issue summons instead of a warrant of arrest.”
preliminary investigation.
(b) For all other offenses, So it is not really necessary that every time a
by filing the complaint or
information directly with the
case is filed in the MTC with a penalty not more
Municipal Trial Courts and than 4 years and 2 months, kailangan mag-
Municipal Circuit Trial Courts, warrant of arrest agad ang judge. Wala na yan!
or the complaint with the
office of the prosecutor. In
That is the old practice. Sometimes it is very
Manila and other chartered tedious. Lalo na sa MTC. Karamihan ng kaso sa
cities, the complaints shall be MTC is bouncing check law. If I were the MTC
filed with the office of the
prosecutor unless otherwise
judge, bouncing check law, sino ba yang
provided in their charters. akusado? “Di ko kilala. Balita ko maraming kaso
yan.” Ah sige, I will issue a warrant.
x x x x x

Pero halimbawa, sino yang akusado? “He is

So there are two (2) ways: (a) direct filing or
Jet Pascua, Your Honor.” Uy! Kilala ko ito!
(b) you file with the prosecutor and the provincial
Businessman ito, titser pa sa Ateneo. Mayaman
prosecutor will file the information.
ito! Sus! Minalas lang. If I am the judge, I will not
issue a warrant. Tatakbuhan ka ba niyan?
Let’s go to Section 9. If it is filed with the
prosecutor, the procedure in Section 3[a] of this
So the judge need not issue a warrant. You
rule shall be observed. There is no need for
better tell that to those judges because they are
preliminary investigation. The prosecutor will
automatic ba! –warrant! warrant! warrant! Just
simply find out based on the affidavit of the
imagine kahit respectable man, first time offender
complainant and his witnesses whether or not
– warrant kaagad ang mga MTC judges.
there is probable cause. Wala ng counter-
affidavit. There is no need for the prosecutor to
Well, under the new rules, hindi man
give a chance to the respondent to give this
kailangan bah! Even if there is probable cause to
counter-affidavits. Section 3[a] lang sundin eh.
file, if he is satisfied that there is no necessity to
There is no mention of [b], [c] or [d].
put the accused in custody, he may issue
summons. Summons here is not really the same in
Section 9[b]. What happens if it is filed in the
the Rules of Court. It is just a notice bah – notice
MTC directly? Again, the judge will observe the
that you are required to appear. And that is a new
same procedure in Section 3[a] of this rule. If the
provision.
judge finds no probable cause after personally
evaluating the evidence, or after personally
Now, we will go to some decided cases
examining in writing and under oath the
related to this rule.
complainant and his witnesses in the form of
searching questions and answers, he shall dismiss
PEOPLE vs. NAVARRO
the same. So he has the power to dismiss the case.
270 SCRA 393, March 25, 1997
Why continue if there is no probable cause?
NOTE: This case signifies that
The next sentence is new: “He may, however,
once the case reached the court, the
require the submission of additional evidence, within
court has the absolute power.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 71
Anything that you like to happen in
the case like reinvestigation or absence
of preliminary investigation, the judge
will be the one to approve.
FACTS: The RTC judge felt that
the case should be reinvestigated, or
maybe there is no preliminary
investigation. So he orders the fiscal to
conduct preliminary investigation,
then submit the result to him
afterwards what happened. Siguro,
the judge had particular confidence in
the assistant provincial prosecutor.
Sabi ng judge, “The preliminary
investigation should be conducted by
this particular prosecutor – provincial
assistant prosecutor Boyd Atensor.”
Siya ang nag-pili ba. Sabi ng
provincial prosecutor, “Hindi! Ako
ang magpili and not you!”
ISSUE: In remanding the
complaint or information to the
provincial prosecutor, may a regional
trial court judge name or designate a
particular assistant prosecutor to
conduct the preliminary investigation
of the case?
HELD: NO. The RTC judge is
already interfering with the office of
the prosecutor. “It must be stressed
that preliminary investigation is an
executive, not a judicial, function. That
an RTC judge has no authority to
conduct a preliminary investigation
necessarily means that he cannot
directly order an assistant prosecutor,
particularly over the objections of the
latter's superiors, to conduct a
preliminary investigation. To allow
him to do so is to authorize him to
meddle in the executive and
administrative functions of the
provincial or city prosecutor.”
Q: Can a preliminary investigation be stopped
by asking the court to grant a preliminary
injunction or a restraining order? Can a criminal
prosecution be enjoined or restrained?
A: NO, as a GENERAL RULE. If you believe
that you are not guilty, then you prove that in
court. Anyway if you are not guilty, you will be
acquitted.
However, the SC came out with
EXCEPTIONS where courts is authorized to stop
a criminal prosecution. These exceptions were all
cited in the case of
BROCKA vs. ENRILE
192 SCRA 83
HELD: Indeed, the general rule is
that criminal prosecution may not be
restrained or stayed by injunction,
preliminary or final. There are
however exceptions, among which are:
a. To afford adequate protection
to the constitutional rights of
the accused;
b. When necessary for the orderly
administration of justice or to
avoid oppression or
multiplicity of actions;
c. When there is a pre-judicial
question which is sub judice;
d. When the acts of the officer are
without or in excess of
authority;
e. Where the prosecution is under
an invalid law, ordinance or
regulation;
f. When double jeopardy is
clearly apparent;
g. Where the court has no
jurisdiction over the offense;
h. Where it is a case of
persecution rather than
prosecution;
i. Where the charges are
manifestly false and motivated
by the lust for vengeance; and
j. When there is clearly no prima
facie case against the accused
and a motion to quash on that
ground has been denied.
There are some interesting cases where the SC
intervened. Normally, hindi nakikialam ang SC
eh – i-acquit mo na lang yan sa trial. But there are
cases when the SC is convinced that there is no
probable cause, bakit mo pa pahirapan yung tao?
You can order the case to be dismissed. These are
rare instances where the SC becomes activist.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 72
In the case of ALEADO VS. DIOKNO (232
SCRA 192) two (2) lawyers: Atty. Diosdado Jose
Aleado and Atty. Roberto Mendoza who were
associates in the office of senator Jovito Salonga
were implicated in the murder of a German
national. There was an investigation and a case
was filed against them. Salonga entered into
picture and questioned whether or not there is
probable cause. [Normally, hindi dapat yan eh.
Yang probable cause, sa fiscal lang yan, hindi
dapat sa SC.]
But surprisingly, the SC reviewed and said
that there was no probable cause which justified
the issuance of order of arrest of the 2 lawyers.
The SC ordered that the warrant of arrest be set
aside and the trial court is permanently enjoined
from further proceeding against them. In effect,
the respondent judge was ordered to dismiss the
information before him. (Aleado vs. Diokno,
supra)
It was a very rare situation. That does not
happen every year. It does not happen even in 10
or 20 years! Yan ang mga kuyaw where the Court
has the power to issue injunction order to stop a
case when there is no probable cause. Salonga
yata yan!
RULE 113
ARREST
Section 1. Definition of arrest.
Arrest – the taking of a person into custody
in order that he may be bound to answer for
the commission of an offense (Sec. 1 Rule
113)
Modes of Arrest
1. arrest by virtue of a warrant
2. arrest without a warrant under
statutorily provided exceptional
circumstances
Essential requisites of a valid warrant of
arrest:
1. It must be issued upon probable cause
which must be determined personally by a
judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce
2. The warrant must particularly describe
the person to be seized
Section 2. Arrest; how made.
Modes of Effecting Arrest
1. By an actual restraint of the person to be
arrested
2. By his submission to the custody of the
person making the arrest
Upon arrest, the following may be
confiscated from the person arrested:
1. Objects subject of the offense or used or
intended to be used in the commission of
the crime;
2. Objects which are the fruits of the crime;
3. Those which might be used by the
arrested person to commit violence or to
escape;
4. Dangerous weapons and those which
may be used as evidence in the case.
Section 5. Arrest without warrant; when
lawful
LAWFUL WARRANTLESS ARREST:
1. When, IN HIS PRESENCE, the person to
be arrested has committed, is actually
committing, or is attempting to commit
an offense;
2. When an offense has in fact just been
committed, and he has probable cause to
believe based on PERSONAL
KNOWLEDGE of fact and circumstance
that the person to be arrested has
committed it; (Doctrine of Hot Pursuit)
and
3. When the person to be arrested is a
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 to another.
4. Where a person who has been lawfully
arrested escapes or is rescued (sec 13,
Rule 113);
5. by the bondsman for the purpose of
surrendering the accused (sec 23, Rule
114); and
6. where the accused attempts to leave the
country without permission of the court
(sec 23, Rule 114).
Any objection involving an arrest of the
accused without warrant and before the
acquisition by the court of jurisdiction over
the person of the accused must be made
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 73

BEFORE he enters a plea, OTHERWISE, the will imperil the

objection is deemed waived. arrest.

Section 6. Time of making arrest.

Unlike a search warrant which must be The private 1. when the person
served only in daytime, an arrest may be Sec. 9 person shall to be arrested is
made on any day and at any time of the day inform the person engaged in the
or night, even on a Sunday. This is justified to be arrested of commission of an
by the necessity of preserving the public the intention to offense or
peace. arrest him and is pursued
the cause of the immediately its
Section 7. Method of arrest of officer by arrest. commission;
virtue of warrant.
Section 8. Method of arrest by officer 2. when he has
without warrant. escaped, flees, or
Section 9. Method of arrest by private forcibly resists
person. before the officer
has an opportunity
Citizen arrest - arrest effected by a private to so inform him;
person. and

Exception to the 3. when the giving

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

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

escaped, flees, or building or enclosure to effect release.
forcibly resists A private person making an arrest CANNOT
before the officer break in or out of a building or enclosure
has an opportunity because only officers are allowed by law to
to so inform him; do so.
and
Section 13. Arrest after escape or rescue.
3. when the giving Where a person lawfully arrested escapes or
of such information is rescued, any person may immediately
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 74
pursue or retake him without a warrant at
any time and in any place within the
country. The pursuit must be immediate.
Section 14. Right of Attorney or relative
4. Procedure
to visit person arrested
RA 7438 defined certain rights of persons
arrested, detained, or under custodial
investigation, with the penalties for
violations thereof.
RULE 113 ARREST
1. Arrest – taking a person into custody in order
that he may be bound to answer for
the commission of some offense,
made by an actual restraint of the
person or by his submission to
custody
2. General Rule: No person may be arrested
without a warrant.
 Not all persons detained are arrested; only
those detained to answer for an offense.
 "Invitations" are not arrests and are
usually not unconstitutional, but in some
cases may be taken as commands (Babst
vs. NBI); however, the practice of issuing
an "invitation" to a person who is
investigated in connection with an offense
he is suspected to have committed is
considered as placing him under
“custodial investigation.” (RA 7438)
 Warrants of arrest remain valid until arrest
is effected, or the warrant is lifted
 Arrest may be made at any time of the day
or night
3. Warrantless arrests by a peace officer or a
private person
a. When person to be arrested is committing,
attempting or has committed an offense
b. When an offense has just been committed
and the person making the arrest has
personal knowledge that the person to be
arrested committed it
 Warrantless arrest anytime for a
continuing offense like rebellion,
subversion (Umil vs. Ramos)
 The continuing crime, not the crime
finally charged, needs only be the
cause of the arrest (Umil vs. Ramos)
c. When person to be arrested is an escaped
detainee (either serving sentence or with
case pending)
c. When a person lawfully arrested escapes
d. Bondsman, for purpose of surrendering
the accused
e. Accused attempts to leave country without
court permission
a. WITH WARRANT
i. Complainant files application with
affidavits attached
ii. Judge conducts ex parte preliminary
examination to determine probable
cause
 In determining probable cause,
judge must:
(1) Personally examine witness
(2) Witness must be under oath
(3) Examination must be reduced
to writing (Luna vs. Plaza)
 In determining probable cause, the
judge may rely on findings by
responsible officer (Lim vs. Felix)
iii. Judge issues warrant of arrest
 If without preliminary examination,
considered irregular (Bagcal vs.
Villaraza)
iv. If peace officer is unable to serve
warrant 10 days after issuance, he
must file a report and explanation with
judge within 10 days
v. If warrant served
(1) Person informed that he is being
arrested
(2) Informed of cause of his arrest
(3) Officer may break door or window
if admission to building is refused
(4) Person physically restrained
 For private citizens making an
arrest
 May not do so except to do
some service to humanity or
justice
(5) No violence or unnecessary force
may be used
(6) Officer may summon assistance
(7) Person who escapes after arrest
may be immediately pursued
vi. Person arrested is brought to nearest
police station or jail
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 75
b. WITHOUT WARRANT:
i. Person is arrested
ii. Person arrested may waive right to
Art. 125, RPC and ask for preliminary
investigation or inquest
 Fiscal is not judicial authority
contemplated under Art. 125 (Sayo
vs. Chief of Police)
iii. Fiscal files info
5. Requisites for a warrant of arrest:
a. Probable cause
b. Signed by judge
c. Specifically naming or particularly and
sufficiently describing person to be
arrested
 John Doe warrants are void for being
general warrants (Pangandaman vs.
Cesar)
6. Remedies
a. Petition for writ of habeas corpus
 Filed with any court, to effect
immediate release of the person
detained
 Filed when a person is being illegally
detained (without judicial process), or
was illegally arrested (void warrant or
unlawful warrantless arrest, or
warrantless arrest beyond period with
no information filed)
 Habeas corpus is not allowed when:
i. The person is in custody of an
officer under process of law, and
ii. The court had jurisdiction to issue
the process (Luna vs. Plaza)
 If an arrest is improper, the remedy is
a motion for quashal of the warrant of
arrest and/or a motion to quash the
information, not habeas corpus (Ilagan
vs. Enrile)
 Habeas corpus is no longer available
after an information has been filed, the
information being the judicial process
required by law (Ilagan vs. Enrile)
 Habeas corpus is proper when a
person is being restrained illegally,
e.g., imprisoned past maximum
penalty allowed by law (Gumabon vs.
Director of Prisons)
b. Quashal of warrant of arrest
 Filed with court which issued the
warrant of arrest when the warrant of
arrest is fatally flawed
c. Motion to quash information
 Filed with court when information
against the person arrested has been
filed
 Must be made in a "special
appearance" before the court
questioning only its lack of jurisdiction
over the person of the accused
 Otherwise, the voluntary appearance
of the person arrested by filing a
motion before the court would be
deemed a submission to the authority
of the court, thus granting it whatever
jurisdiction it lacked over the person
 Any irregularity in the arrest is cured
when the petitioner submits himself to
the jurisdiction of the court, e.g., by
filing for bail (Bagcal vs. Villaraza)
7. V.V. Mendoza, "Rights to Counsel in
Custodial Investigation"
 Evolution of rights of the accused under
custodial investigation
a. All involuntary confession were
inadmissible; accused had to prove
involuntariness
b. Involuntary confessions were
inadmissible only if they were false
c. Revert to exclusionary rule: any
involuntary confession is inadmissible
d. Miranda rule: the accused must be
informed of his rights
i. To remain silent
ii. Against self-incrimination
iii. To counsel
e. Definition of custodial investigation
questioned
f. It begins only after arrest
g. Police investigations prior to arrest are
not covered
h. The rights may be waived, but the
rights to be informed of these rights,
i.e., to warning, may not be waived
i. Warning must not only be said, officer
must make sure the person arrested
understands them specifically
j. Present rules
i. Voluntary confessions are
admissible
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 76
ii. Test of voluntariness determined
on a case-to-case basis
iii. Waiver of rights must not only be
with counsel but must be in writing
 Confessions made without
assistance of counsel are
inadmissible as evidence to
incriminate the accused, but they
may be used to impeach the
credibility of the accused, or they
may be treated as verbal
admission of the accused through
the testimony of the witnesses
(People vs. Molas)
Rule 114
BAIL
Q: Define Bail.
A: Under Section 1:
SECTION 1. Bail defined. –
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 hereinafter
specified. Bail may be given in
the form of corporate surety,
property bond, cash deposit, or
recognizance. (1a)
Ano ba yang bail? Pyansa! As a general rule,
once a case is filed in court and there is probable
cause, the judge will issue a warrant. So sa
presohan ka. Paano yan because you are still
presumed innocent? Ang tawag diyan is
preventive detention. That is why if you are
convicted, that is already credited as advanced
service under Article 29 of the Revised Penal
Code.
But that will be too tedious. You are already
detained, and you are still presumed innocent.
The remedy is you apply for bail – you post bail –
because bail is, as a rule, a constitutional right.
Q: And what is the primary purpose of bail?
A: American jurisprudence says the purpose
of bail is (a) to combine the administration of
criminal justice with the convenience of a person
accused but not yet proven guilty; (b) to relieve
the accused of imprisonment, and the State of
burden of keeping him, pending trial. (6 Am. Jur.
61)
Can you imagine without the provision on
bail? There will be thousands of people who are
already in jail and all at the expense of the
government. So, we have to combine these two –
the convenience of the accused and the
convenience of the State.
Now, let us go to some political law basic
questions: When there is invasion or rebellion,
the Constitution authorizes the Commander-In-
Chief to suspend the privilege of the writ of
habeas corpus. You can be arrested on suspicion
that you are engaged in rebellion even if there is
no warrant and there is no case.
Q: Are you entitled to bail? Does the
suspension of the privilege of the writ of habeas
corpus also carry with it the suspension of the
right to bail?
A: That issue bugged the Supreme Court
several times prior to the 1987 Constitution where
the SC gave conflicting answers.
In the case of NAVA VS. GATMAITAN, (90
Phil. 172) the SC said, Yes, he is entitled to bail
once the case has been filed in court. At least 5
out of 9 justices said that. Very close fight! Once
the case is filed in court, the right to bail can be
availed of. So, the right to bail is different from
the suspension of the privilege of the writ of
habeas corpus.
But when that issue came out during the
martial law regime, the SC gave a different
answer eh. So, that issue came out again in the
case of BUSCAYNO VS. MILITARY
COMMISSION (109 SCRA 273), GARCIA-
PADILLA VS. ENRILE (121 SCRA 472). Is there a
right to bail when the privilege of the writ of
Habeas Corpus is suspended? Ang sabi ng
Supreme Court, NO! because the government’s
campaign to suppress rebellion might be
ineffective. Captured rebels, would no doubt
rejoin their comrades in the field and jeopardize
the success of the government efforts to end the
rebellion. That sounds logical. Just imagine, why
are you suspending the privilege of the writ? To
arrest suspected rebels. Pag naaresto, and then
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 77
entitled to bail, balik na naman sila sa mga
kasama nila! Anong klaseng campaign ito? That
is the reasoning in the case of Buscayno and Ponce
Enrile.
I think that debate is already moot and
academic. There is now a direct provision in the
Constitution, Article 3 Section 13 which says that
the right to bail exists and is not suspended by
the suspension of the privilege. Talagang settled
na.
Another interesting case on bail. These are
the cases that cropped up after the 1989 coup d’
etat attempt against Cory Aquino because some
of the RAM suspects were detained. Many of
them were detained because of court martial
charges. They are charged for violating military
law pero nakakulong sila. Some of them applied
for bail.
Q: Are the same military officers facing
charges before a court martial entitled to bail?
A: In COMMENDADOR VS. DE VILLA (200
SCRA 80) the SC said: NO, “the right to bail has
traditionally not been recognized and it is not
available in the military as an exception to the
general rule as embodied in the Bill of Rights.”
There is no such thing as bail in the military. So,
that’s an exception to the general rule. “The right
to speedy trial is given more emphasis in the
military where the right to bail does not exist.”
The dissenter in the case of Commendador is
Abraham Sarmiento. Diyan mo makikita
pagiging humanitarian lawyer niya. During the
time of Marcos he hates the military [gi-lubot siguro
siya]. But he was the one who said that they are
entitled to bail [nalamian siguro siya] because sabi niya,
“according to the majority the right to bail has
traditionally hot been recognized in the military.
I’ve been looking in the bill of rights and I cannot
find that exception. Where did the majority get
that? You mean to tell me the military before are
not citizens of the Philippines anymore?”
According to Isagani Cruz who is the ponente in
that case, “They are not entitled to bail as a matter
of tradition in the military!” Sarmiento: “No! We
are a government of laws, not a government of
traditions.” Mag-isa lang siya, wala siyang
nagawa.
PROBLEM: Tato is charged with a capital
crime. So, no bail. Ayaw mag-surrender. Gusto
niya bail muna bago surrender. (Anyway, even if
you are charged with a capital crime, you can file
a petition for bail.) But he got a lawyer and the
lawyer filed a petition for bail in his behalf.
Q: In this case, can Tato apply for bail?
A: NO. The SC said, We cannot entertain the
petition for bail because Tato is not in custody!
Simple: what is the definition of bail? “Security
given for the release of a person in custody of law.”
You are even at large then you’re asking for bail?
Surrender first bago ka makahingi ng bail.
(Marigbasa vs. Luna, 98 Phil. 466; Feliciano vs.
Pasicolan, July 31, 1961)
Q: What do you mean by “in custody of law”?
A: “In custody of law” may mean
1. physical or actual custody; or
2. constructive custody. (Panderanga vs.
CA, 247 SCRA 41)
PANDERANGA vs. COURT OF
APPEALS
247 SCRA 417
FACTS: This case originated in
CDO. The accused was charged of
murder – non-bailable. So, ayaw
niyang magpahuli. Pero actually, he
wants to face the case pero dapat lang
may bail. Pero problema niya how can
he file a petition for bail when you are
not even in custody? (In custody, you
have to surrender or you must be
arrested. Kaya nga ayaw niya yun eh.
As much as possible, pag-surrender
niya, meron ng bail. Then what
happened?) He entered the hospital,
may sakit daw and then his lawyer
filed a petition for bail before the RTC,
“We are appearing for the accused for
his petition for bail. We would like to
manifest that he is right now in the
hospital. Will you please consider him
already in the custody of the court?”
Sabi ng court, “[Sure!] OK, let’s
proceed.”
ISSUE: Is the accused already in
custody? Can the court entertain his
petition for bail even if he was not
arrested, and the lawyer said he was
in the hospital and the court never
bothered to ask a policeman to go
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 78

there, check, verify, bantayan mo yung deemed a waiver of his right to

be present thereat. In such
hospital until he gets well? case, the trial may proceed in
absentia; and
HELD: YES, he is already in the (d) The bondsman shall
surrender the accused to the
CONSTRUCTIVE custody of the law. court for execution of the
“It may be conceded that he had final judgment.
indeed filed his motion for admission The original papers shall
state the full name and address
to bail before he was actually and of the accused, the amount of
physically placed under arrest. He the undertaking and the
may, however, at that point and in the conditions required by this
section. Photographs (passport
factual ambience thereof, be size) taken within the last six
considered as being constructively and (6) months showing the face,
legally under custody. Thus, in the left and right profiles of the
accused must be attached to the
likewise peculiar circumstances which bail. (2a)
attended the filing of his bail
application with the trial court, for Q: So, for example in the MTC, you are
purposes of the hearing thereof he arrested, natalo ka, you will appeal. How about
should be deemed to have voluntarily pag-appeal mo sa RTC, what will happen to your
submitted his person to the custody of bail?
the law and, necessarily, to the A: Tuloy-tuloy pa rin yan because under
jurisdiction of the trial court which paragraph [a], your bail is effective up to the
thereafter granted bail as prayed for. RTC.
The undeniable fact is that
Panderanga was by then in the Q: Another example: na-convict ka sa RTC
constructive custody of the law. and you want to go to the CA, are you still
entitled to bail?
A: The answer is MAYBE. This is one
Q: What are the types of bail? instance where bail is discretionary.
A: There are four (4) types of bail under
Section 1: Q: But assuming that the court will say, “OK,
1. Corporate surety; you are entitled to bail on appeal.” What happens
2. Property bond ; now to your bail?
3. Cash deposit; and A: The GENERAL RULE is you get another
4. Recognizance. bail bond because your bail is only up to the level
of the RTC. This is back to the 1964 rules. In the
Q: What are the conditions of a bail? 85 Rules, iba naman – the bail is tuloy-tuloy up to
A: Section 2: the CA. Now, RTC level lang. You have to ask
for another bail bond if you want to go further to
SEC. 2. Conditions of the
bail; requirements. – All kinds
the CA. So, it’s back to the 64 rules ‘no?
of bail are subject to the
following conditions: Q: Paragraph [b] – you will appear before the
(a) The undertaking shall be
effective upon approval, and
proper court whenever required by the court or
unless cancelled, shall remain these rules. Normally, when is a person required
in force at all stages of the by the court to appear?
case until promulgation of the
judgment of the Regional Trial A: Generally, ARRAIGNMENT or
Court, irrespective of whether PROMULGATION lalo na pag convicted ka. But
the case was originally filed there are others for example, let’s read Rule 115
in or appealed to it;
(b) The accused shall appear Section 1 [c]:
before the proper court
whenever required by the court “(c) To be present and
of these Rules; defend in person and by counsel
(c) The failure of the at every stage of the
accused to appear at the trial proceedings, from arraignment
without justification and to promulgation of the
despite due notice shall be judgment. The accused may,
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 79
however, waive his presence at
the trial pursuant to the
stipulations set forth in his
bail, unless his presence is
specifically ordered by the
court for purposes of
identification. x x x x x x”
That is one instance where the court may
require his presence. His presence there is not a
privilege but an obligation.
Q: Now supposed you failed to appear in
court without justification. Like for example, you
escaped, you jumped bail and disappeared?
What will happen to the case?
A: Tuloy pa rin according to paragraph [c]
because that would be a waiver of your right.
Q: Anong tawag niyan?
A: TRIAL IN ABSENTIA pursuant to Section
14, 2nd paragraph, Article 2 of the Constitution.
Q: A bail bond required the bondsmen to pay
the fine of the accused, in addition to the usual
condition. Is this additional condition valid?
A: NO. The additional condition is void
because it made the obligation of the bondsmen
more onerous, in violation of the constitutional
provision that no excessive bail shall be required
may not impose additional conditions because it
might prevent or render it impossible for the
accused to secure his liberty during the trial.
(Bandoy vs. CFI of Laguna, 14 Phil. 620)
Q: A condition in a bail bond states that the
sureties do not undertake to deliver the person of
the accused if the reading of the sentence is
postponed to a later date, nor do they consent to
such extension. Is this condition valid?
A: YES, the condition is valid, because it is not
contrary to law or public policy, and, besides, it
lightens the obligation of the bondsmen, which is
allowable. Conditions restricting liability on the
bond when accepted by the court and not
contrary to public policy are valid. (People vs.
Wong Pun, 48 Phil. 713)
SEC. 3. No release or
transfer except on court order
or bail. – No person under
detention by legal process
shall be released or
transferred except upon order
of the court or when he is
admitted to bail. (3a)
Now, we go to these important issues on bail:
1. When bail is a matter of right;
2. When bail is discretionary;
3. When bail is not available.
As a general rule, bail is a matter of right.
That is a constitutional right. And Section 4 tells
us what are the instances when bail is a matter of
right.
BAIL AS A MATTER OF RIGHT
Q: When is bail a matter of right?
A: Section 4:
SEC. 4. Bail, a matter of
right; exception. – All persons
in custody shall be admitted to
bail as a matter of right, with
sufficient sureties, or
released on recognizance as
prescribed by law or this Rule
(a)before or after conviction
by the Metropolitan Trial
Court, Municipal Trial Court,
Municipal Trial Court in
Cities, or Municipal Circuit
Trial Court, and (b) before
conviction by the Regional
Trial court of an offense not
punishable by death, reclusion
perpetua, or life imprisonment.
(4a)
Q: So you are charged in the MTC; no
conviction yet. So you are still an innocent. Are
you entitled to bail?
A: Yes, as a matter of right.
Q: Suppose you have been convicted already,
found guilty by the MTC, maybe sentenced to 2
years imprisonment but you would like to appeal
to the RTC. While your appeal is going on, can
you still post bail?
A: YES. Whether it is before or after
conviction by the MTC, bail is a matter of right.
Q: But suppose you are charged in the RTC,
for example homicide punishable by reclusion
temporal, are you entitled to bail?
A: YES, it is also a matter of right. For as long
as the prescribed penalty is not life
imprisonment, perpetua or death, it is a matter of
right. So, up to reclusion temporal it is a matter of
right.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 80
So based on the provision of law, let us try to
outline –
Q: When is bail a matter of right:
A: Bail is a matter of right –
1. Before conviction by the MTC, MTC,
or MCTC (Section 4 [a]);
2. After conviction by the MTC (Section 4
[a]);
3. Before conviction by the RTC of an
offense not punishable by death,
reclusion perpetua or life
imprisonment (Section 4 [b])
4. Before conviction by the RTC of an
offense punishable by death reclusion
or life imprisonment when evidence of
guilt is not strong. (People vs. Donato,
infra)
Under the law, when a person charged in
court for example murder, non-bailable man yan
ba. What is the procedure under Section 8 if he
wants to post bail? He must file an application or
petition for bail. And that is when the
prosecution will have to present evidence
immediately to prove that the evidence of guilt is
strong.
Q: Suppose after hearing for the petition for
bail, the court is convinced that the evidence of
guilt is not strong and the court said so, what
happens now to bail?
A: Bail becomes a matter of right. (People vs.
Donato, 198 SCRA 130)
PEOPLE vs. DONATO
198 SCRA 130
HELD: “If the offense charged is
punishable by death, reclusion
perpetua or life imprisonment, bail
becomes a matter of discretion. It shall
be denied if the evidence of guilt is
strong. The court's discretion is limited
to determining whether or not
evidence of guilt is strong. But once it
is determined that the evidence of
guilt is not strong, bail also becomes a
matter of right.”
BAIL AS A MATTER OF DISCRETION
Q: When is bail discretionary? Meaning, the
court may grant bail or may not grant bail.
A: Section 5:
SEC. 5. Bail, when
discretionary. – Upon
conviction by the Regional
Trial Court of an offense not
punishable by death, reclusion
perpetua, or life imprisonment,
admission to bail is
discretionary. The application
for bail may be filed and acted
upon by the trial court despite
the filing of a notice of
appeal, provided it has not
transmitted the original record
to the appellate court.
However, if the decision of the
trial court conviction the
accused changed the nature of
the offense from non-bailable
to bailable, the application
for bail can only be filed with
and resolved by the appellate
court.
x x x x
Q: Supposed you are charged with homicide.
The maximum penalty there is temporal. You are
convicted. The court found you guilty of
homicide. It sentenced you to 20 years
imprisonment and you would like to appeal. Can
you ask for bail?
A: YES.
Q: What will the court do?
A: The court may or may not grant. Yan ang
discretion.
Now, the second sentence is new:
The application for bail may be
filed and acted upon by the trial
court despite the filing of a
notice of appeal, provided it has
not transmitted the original record
to the appellate court. (Section 5,
first paragraph, second sentence)
This is a reversal of a ruling in the case of
OMOSA vs. COURT OF
APPEALS
266 SCRA 281, January 16, 1997
FACTS: The court convicted the
accused for homicide. So temporal.
The accused said: “Your honor, we
intend to appeal this case but may we
be asked to post bail while the appeal
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 81
is going on. The court said, “Granted!
[discretionary man!]. We will fix your
bail at P50,000.” Two days before, the
accused filed a notice of appeal. After
filing the notice of appeal, he applied
for bail which was approved by the
court.
ISSUE: Can the court approve the
bail?
HELD: NO, because when the
accused filed his notice of appeal, from
that very moment the court has lost
jurisdiction over the case. Dapat,
inuna muna yung approval of bail
bago mag-file ng notice of appeal.
When the court fixed the bail, he has
must not yet filed his notice of appeal,
so the court has the power to fix the
bail. The trouble is he immediately
filed a notice of appeal bago niya ging-
post ang bail. So the court has no more
jurisdiction to approve the bail. It
should have been approved by the
Court of Appeals.
That is the ruling in the Omosa. Obviously,
the SC wanted to change it. The application for
bail may still be filed and acted upon by the trial
court despite the filing of a notice – that is a
modification of the Omosa ruling – Puwede,
provided it has not transmitted the original
record. Based on the Omosa ruling, once the
notice of appeal is filed, the trial court has no
more jurisdiction to act on the application for bail.
But NOW under the NEW RULES, puwede
pa even if there is already a notice of appeal on
the condition that the records are still with the
RTC. If the records are already in the appellate
court, you better apply for bail before the Court
of Appeals.
Now the next sentence
However, if the decision of
the trial court conviction the
accused changed the nature of
the offense from non-bailable
to bailable, the application
for bail can only be filed with
and resolved by the appellate
court. (Section 5, first
paragraph, last sentence)
This is also a recognition and modification of
the ruling of Omosa vs. CA, supra.
In the case of Omosa, the accused was charged
with murder – non-bailable. But after the trial the
court convicted him only for homicide, a lesser
offense. And homicide is bailable – discretionary
in the court. If he was convicted for murder, wala
talagang pag-asa. But he was convicted for
homicide. So he applied for bail. And the court
granted the bail. And the SC said the trial court
should not grant bail because the accused is
appealing. For all you know on appeal, the
appellate court may reinstate the original charge
for murder because when you appeal, the whole
case is open for review. So, because of the
possibility that the penalty of murder would be
imposed, then there should be no bail. That was
the ruling of Omosa vs. CA.
Now, of course it is now modified in the sense
that, bail could be granted in that situation
because he was charged with a non-bailable
offense but found guilty of bailable offense.
However, if there is any court which should grant
the bail, it should be the CA and not the trial
court. So these are new provisions which were
somehow taken from the ruling in Omosa which
is also now modified. That is the history of that
provision.
Alright. Now let us go to the second
paragraph:
Should the court grant the
application, the accused may be
allowed to continue on
provisional liberty during the
pendency of the appeal under
the same bail subject to the
consent of the bondsman.
(Section 5)
That is more or less an exception to Section
2[a] that we already discussed. When you are
charged in the RTC and you post bail, the bail is
good up to when? The bail is only valid in the
RTC. If you want to appeal, and the court grants
bail on appeal, you have to post another bail.
But this provision grants the court the
authority to say, “Alright, your bail which you
posted here will continue.” Nasa court yan kung
gustong ipatuloy. Puwede rin yun. Ok. We will
continue, subject to the consent of the bondsman.
That is now the condition. The bondsman may
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 82

say, “Delikado na ito, baka ma-convict na ito.
Mamaya baka lumayas na ito at tumakbo, patay
na ako. Ako ang magbabayad.”
Alright, let us go now to the next sentence:
If the penalty imposed by
the trial court is imprisonment
exceeding six (6) years, the
accused shall be denied bail,
or his bail shall be cancelled
upon a showing by the
prosecution, with notice to the
accuse, of the following or
other similar circumstances:
(a) That he is a recidivist,
quasi-recidivist, or habitual
delinquent, or has committed
the crime aggravated by the
circumstance of reiteration;
(b) That he has previously
escaped from legal confinement,
evaded sentence, or violated
the conditions of his bail
without valid justification;
(c) That he committed the
offense while under probation,
parole, or conditional pardon;
(d) That the circumstances
of his case indicate the
probability of flight if
released on bail; or
(e) That there is undue risk
that he may commit another
crime during the pendency of
the appeal.
The appellate court may,
motu proprio or on motion of
any party, review the
resolution of the Regional
Trial Court after notice to the
adverse party in either case.
(5a)
Alright. Let us go back to the basic:
What is the jurisdiction of the RTC? The
penalty is 6 years and 1 day up to death.
If the penalty is prision mayor to reclusion
temporal [6 yrs and 1 day to 20 years] yan, sa
phrase na yan, bail could be granted on appeal
but it is discretionary. However, even if the bail
is granted the prosecution tells the court, “Judge,
this guy was found guilty of homicide and you grant
bail. Iba pala ito eh because he is a recidivist, or etc or
any of the conditions mentioned in [a] – [e],” the
court will now cancel the bail.
So bail is discretionary provided it will not
fall under [a], [b], [c], [d], or [e]. You are a
recidivist; you are habitual delinquent; you have
previously escaped from a confinement; you have
committed an offense while under probation,
parole or conditional pardon; or when the
circumstances of the case indicates the probability
of flight (there is a risk ba!); or there is an undue
risk that the you might commit another crime
during the pendency of the appeal, the court will
not grant the bail. The discretion there will not be
in your favor. If the court has already granted, the
bail will be cancelled. Take note of that.
Q: When is bail discretionary?
A: Based on that provision, after conviction by
the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment, provided
the case does not fall under Section 5, third
paragraph [a]-[e] of the same law because once
the case falls under any of these, no bail even if it
is a matter of discretion.
Take note of the second instance – bail as a
matter of discretion. The first instance is when
bail is a matter of right – Section 4. When is bail
discretion – Section 5. Yung Section 4, walang
problema, that is absolute even if you are a
recidivist.
CASE: The accused was charged with
homicide, there was no conviction yet. And then
bail. He jumped bail – lumayas! But he was
arrested again. When arrested apply na naman
for bail. Binigyan na naman ng bail. After a few
months, layas na naman. He escaped again.
Nahuli na naman. And then he applied for bail
for the third time. This time, sabi ng judge,
“Ayaw ko na. Because of your character, di na
puwede for jumping bail twice already. I will not
grant you bail.” And he questioned it before the
court. Is the denial of bail correct because of the
past record of the accused?
The SC said NO because the bail is a matter
of right. He falls under Section 4 there. Wala
pang conviction. Even if he jumps bail 100 times
you cannot deny him bail for as long as the crime
is not punishable by perpetua to death. (Sy Guan
vs. Amparo, 79 Phil. 670; People vs. Alano, 81
Phil. 19)
Q: What is the remedy to this kind of
accused? Remedy?
A: Taasan mo ang bail. So magkano bail mo
dati? P30,000? Alright, ngayon P70,000 na!
Tingnan natin kung tatakbo pa yan. [putulin kaya ang
paa?] Previous abscondence or escape is not a
ground for the denial of the bail; it merely gives
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 83
the court discretion to increase the amount of the
bond as will reasonably tend to assure the
presence of the accused. (Sy Guan vs. Amparo, 79
Phil. 670; People vs. Alano, 81 Phil. 19)
Now, I am amused by what happened in
Section 5. Did you hear the promulgation of the
Robillo case one month ago? I don’t know how
many were convicted. I think 3 or more were
convicted. One of them is a radioman. I know
where he hangs around. One day before the
promulgation, he is no longer hanging around.
He disappeared already, na-amoy na niya siguro.
Some were military men.
They were convicted. At least one of them
was acquitted. Many were convicted. The
penalty was reclusion perpetua. And after the trial
everybody left, including the convicted accused. I
was visiting the jail the following day. The
warden was telling me, “What happened to this
case? Since yesterday we were expecting the
convicted person to be brought here. Convicted
eh.”
So I asked the fiscal kung anong nangyari
dyan because from what we know, if you are
found guilty for murder, for example, and
sentenced to reclusion perpetua on the spot, you
will be sent to jail. “Teka muna! Hindi pa final yung
conviction!” Never mind! You can appeal but you
are now detained indefinitely. Wala nang labas
labas ‘yan. From the court room, diretso ka na sa
jail. “But the judgment is not yet final?” But there’s
already the judgment of conviction. Even when
there’s still no of conviction, when the evidence of
guilt is strong, your bail will be denied. Even in
the middle or at the start of the case, if the
evidence of guilt is strong, bail will be denied lalo
na kung capital punishment. How much more
here when there is already a judgement of
conviction?! Logic! simple logic.
And the branch clerk of court, I think you
know her – Atty. Morales. She called me up in the
office. Sabi niya, “Anong nangyari dito? di ba
walang bail yan?”. Sabi ko “Yes”. I wonder bakit
walang bail. Bakit hindi ikinancel? Kailangan
daw i-cancel pa ang bail. That was what the
judge said. Sabi ko, NO! The bail is automatically
cancelled. That is what I said so.
Sabi niya (clerk of court), “I was pointing to
the judge Section 5. Eh sabi niya (judge), ‘No.
Bail is discretionary because of this paragraph 3 –
if the penalty imposed by the trial court is
imprisonment exceeding 6 years the accused
should be denied bail or bail should be cancelled
upon showing by the prosecution with notice of
the accused of the following. Therefore, bail
could be granted because the penalty is exceeding
6 years.’”
That implies that bail is discretionary because
in Section 5, the heading is “Bail, when
discretionary” so hindi cancelled. I said,
“Tingnan mo ang opening paragraph of Section 5
– upon conviction of the RTC of an offense not
punishable by death, perpetua or life
imprisonment, admission to bail is discretionary.
So itong paragraph 3, upon 6 years but less than
perpetua. So up to 20 years. We have to connect
paragraph 3 with the first paragraph. Sabi niya
(clerk of court), “This is what I know eh. Since I
am new in this job. I cannot insist.” Dean I:
“Sabihin mo sa judge na nagkamali sya. Ako ang
nagsabi.” And after 2 days, pinacancel niya
(judge).
I’ve talked that judge. He was my friend
personally. When I see him sabi ko nagkamali ka
man dun ba. Dapat yun, on the spot. That’s why
everybody is wondering bakit nakaganun yun.
Well, that was his first experience with a capital
heinous crime. Dio siya naiiba eh. He’s not used
to trying this kind.
Yung sasabihin mong bail may continue –
that assumes that the penalty is above 6 years but
not more than 20 years. Pag naging perpetua,
wala na. Yung wala pang conviction bail could
be denied, lalo na pag may conviction na! The
evidence of guilt is now strong! It’s simple logic.
That is why this provision will be tricky if we do
not know how to interpret this rule.
WHEN BAIL IS DENIED
SEC. 6. Capital offense
defined. – 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. (6a)
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 84

Take note that the crime is punishable by

DEATH not only at the time of its commission Arestado ka, nakulong ka. Under the law,
but also at the time of the application for bail. The what is the procedure? You file an application for
law uses the conjunction “and.” C.f. RA 7659 gives bail. And once an application for bail is filed, it is
us a list of capital offenses. now MANDATORY for the court to conduct a
hearing for the prosecution to present evidence to
SEC. 7. Capital offense or prove that the guilt is strong, not guilt beyond
an offense punishable by
reclusion perpetua or life reasonable doubt because the latter is conviction
imprisonment, not bailable. – na yan!
No person charged with a
capital offense, or an offense
punishable by reclusion Ang ibig sabihin niyan, mag-sample ka lang.
perpetua or life imprisonment, You present some of the witnesses but not all.
shall be admitted to bail when Sample-an mo lang ba. Parang preliminary
evidence of guilt is strong,
regardless of the state of the injunction ba! You present some of your
criminal prosecution. (7a) evidence. after that, the court will now consider
whether the evidence of guilt is strong or not
This means if the accused is charged with a strong.
crime which is punishable by death, reclusion
perpetua, or life imprisonment, there is NO BAIL Either way the court will grant bail or deny
even at the start of the trial or even before bail – tuloy pa rin ang trial! Yaan!
judgment of conviction, provided that the two (2)
conditions are present. Q: What happens now to those witnesses?
Balik na naman sila sa trial?
“xxx regardless of the state of the criminal A: NO. Under Section 8, the evidence received
prosecution.” Meaning, NO BAIL before during the bail hearing is automatically
conviction. Lalo na pag after conviction! reproduced at the trial. Di na kailangang ulitin
pa. But you can add more witnesses and more
That’s why I told (Atty.) Evalyn Morales na evidence.
ipakita mo [sa judge] yung Section 7 – “xxx
regardless of the state of criminal prosecution.” After that, we will now determine if the
You already found him guilty beyond reasonable accused is guilty or not guilty. Yan na ang guilt
doubt and sentenced him to perpetua, huwag mo beyond reasonable doubt.
sabihing ‘the evidence of guilt is not strong’! How
come you convict him?! Yaan! Now, [Atty.] Ceniza had a problem in Davao
Oriental. He told me about it. An offense is, I
Now, this is where lalabas yung application think punishable by perpetua or higher. Then pag-
for bail – Section 8: hingi ng bail, sabi ng prosecutor, “No objection!”
Siguro sabi ng court, “No objection? O sige, grant
SEC. 8. Burden of proof in
bail!” The prosecutor did not present evidence.
bail application.– At the
hearing of an application for Meaning, the prosecutor admits that the evidence
bail filed by a person who is of guilt is not strong – wala ng hearing!
in custody for the commission
of an offense punishable by
death, reclusion perpetua, or Puwede ba yan? NO! The SC said that there
life imprisonment, the must be a hearing. Even if the prosecution will
prosecution has the burden of
showing that evidence of guilt
not want to present evidence, the court must
is strong. The evidence require a hearing. And the court cannot dispense
presented during the bail with the hearing.
hearing shall be considered
automatically reproduced at the
trial but, upon motion of Let’s go to some decided cases.
either party, the court may
recall any witness for
additional examination unless
TUCAY vs. JUDGE DOMAGAS
the latter is dead, outside the [Adm. Matter No. RTJ-95-1286]
Philippines, or otherwise March 2, 1995
unable to testify. (8a)
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 85
HELD: “Although the Provincial
Prosecutor had interposed no
objection to the grant of bail to the
accused, respondent judge should
nevertheless have set the petition for
bail for hearing and diligently
ascertained from the prosecution
whether the latter was not really
contesting the bail application.”
“He should have called a hearing
for the additional reason of taking into
account the guidelines in Rule 114 in
fixing the amount of the bail. Only
after satisfying himself that the
prosecution did not wish to oppose
the petition for bail for justifiable
cause (e.g., for tactical reasons) and
taking into account the factors
enumerated in Rule 114, sec. 6 for
fixing bail should respondent judge
have granted the petition for bail and
ordered the release of the accused.”
Assuming na sabi ng prosecution, “for tactical
reason, we will not object.” The court will still have
to conduct a hearing – kung pila ang bail. Yaan!
You still have to conduct a hearing. You look at
Section 9 – Amount of bail; guidelines. In
determining how much is the bail, may mga
guidelines eh! So if we will grant bail, at least we
will have to find out how much. These guidelines
must be met. So you still have to conduct a
hearing.
GUILLERMO vs. JUDGE REYES,
JR.
January 18, 1995
HELD: “A hearing, in the nature of
a summary proceeding entailing
judicial determination is required
where the grant of bail is addressed to
the discretion of the court. The
prosecution should be given the
opportunity to adduce evidence
thereat after which the court should
then spell out at least a summary or
resume of the evidence on which the
order, whether it be affirmative or
negative, is based. Otherwise, the
order is defective or voidable.”
Meaning, if you grant or deny bail, may court
order yan. Kailangang i-summarize mo ang
evidence. then you state why you believe it is
strong or it is weak. Otherwise the judge is
administratively liable for not complying with the
requirement.
AURILLO vs. FRANCISCO
235 SCRA 283
HELD: In a hearing for
petition for bail, affidavits will not
suffice. Witnesses must be present
to testify. Affidavits will suffice
only when it determines probable
case for the purpose of whether or
not to issue search warrant. The
judge has the personal duty of
calling the witnesses one by one to
hear them for or review the
evidence, i.e. affidavits presented
at the fiscal’s office.
“Verily, it was patent error for
him to base his order granting bail
merely on the supporting
affidavits attached to the
information since those were
merely intended to establish
probable cause as basis for the
issuance of an arrest warrant, and
not to control his discretion to
deny or grant bail in all situations”
AGUIRRE vs. JUDGE
BELMONTE
October 27, 1994
HELD: “Even if the prosecution
fails to adduce evidence in opposition
to an application for bail of an
accused, the court may still require
that it answer questions in order to
ascertain not only the strength of the
state's evidence but also the adequacy
of the amount of bail.”
So kahit na sabihin pa ng prosecution that it is
not opposing in the application of the bail, sabi ng
SC: Ah, hindi puwedee! The court will have to
ask the prosecution, why are you not opposing?
Yaan! Whether to grant or deny bail, a hearing is
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 86
a 100% requisite. Otherwise the order granting or
denying bail is defective, and the judge may lose
his job.
Let’s go to this important question:
Q: For bail to be denied, what are the
requirements?
A: Under the law:
1. the evidence of guilt is strong;
2. the crime is punishable by death,
reclusion perpetua or life imprisonment;
3. [based on jurisprudence] if the
accused is convicted in all probability
the penalty will also be death, reclusion
perpetua or life imprisonment.
So you have to look at the probable penalty.
This principle has been illustrated in the case of
BRAVO, JR. vs. BORJA
134 SCRA 466
FACTS: The accused was charged
with murder – perpetua to death –
talagang non-bailable yan. The
accused filed a petition for bail where
the case is pending on the argument
that when he committed a crime, he
was only 16 years old. He attached his
birth certificate in the application for
bail. Sabi niya, if found guilty, the
penalty is automatic one (1) degree
lower – so, temporal. The worst that
will happen to him is temporal.
Therefore, bail now becomes a matter
of right.
ISSUE #1: In the hearing for bail,
should the court allow the
presentation of evidence of mitigating
or aggravating circumstances?
HELD: NO. Bravo, Jr. is wrong. In
the hearing for a petition for bail, the
presentation of aggravating and
mitigating circumstances is NOT
covered because if the court will
required the presentation of said
circumstances, then there would be a
need for a trial on the merits of the
case. All the court has to do after the
bail hearing would be to render a
decision. That would defeat the
purpose of the hearing for bail.
ISSUE: #2: Whether or not Bravo,
Jr. is entitled to bail.
HELD: YES. Although the
presentation of aggravating and
mitigating circumstances is NOT
allowed, the SC said, However, we
cannot close our eyes to the fact that
when Bravo, Jr. committed the crime
he was only 16 years old. Normally,
we close our eyes, but in this case, we
cannot close it because he alleged it. As a
matter of fact, his birth certificate was
attached to this petition and the
prosecution DID NOT challenge his
minority. Since the plea of minority is
already before us and the accused did
not challenge it, we cannot close our
eyes to the fact that even if we fin him
guilty, the penalty to be imposed
would not be reclusion perpetua or
death but lower. Since the probable
penalty is not death or perpetua, then
he is entitled to bail as a matter of
right.
Q: So what are the principle points to
remember in the case of Bravo, Jr?
A: The following:
1. that in a petition for bail there should
be no evidence of any aggravating or
mitigating circumstances. It should
not be presented in a petition for bail.
This should be presented during the
trial;
2. however, despite the fact that it should
not be presented, if it is alleged and
presented there and the prosecution
did not dispute it, the court should
consider it just the same; and
3. even if the accused is charged with a
crime punishable by death, perpetua or
life imprisonment and the evidence of
guilt is strong, if the probable
imposable penalty is less than perpetua,
bail becomes a matter of right.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 87
PEOPLE vs. CALO
186 SCRA 620 [1990]
FACTS: Three (3) people were
accused of murder for the death of the
victim. The prosecution
recommended no bail. After a hearing
to determine whether the evidence of
guilt is strong, the trial court issued
the order granting bail. The son of the
victim went to the SC questioning the
order granting the bail of the accused.
ISSUE: Whether or not the son of
the victim has sufficient legal
personality to question the order
granting bail? (Normally, if there is
anyone who should question it, it
should be the Solicitor General
representing the people of the
Philippines)
HELD: While the rule is, only the
Solicitor General may represent the
People or the State in criminal
proceedings pending in this Court and
the Court of Appeals, the ends of
substantial justice would be better
served, and the issues in this action
could be determined in a more just,
speedy and inexpensive manner, by
entertaining the petition at bar. As an
offended party in a criminal case,
private petitioner has sufficient
personality and a valid grievance
against the judge's order granting bail
to the alleged murderers of his
(private petitioner's) father.
So, the case of Calo was considered an
exception because he is also an aggrieved party –
the aggrieved parties are the People and the
family of the victim. So in this case, the son is also
an aggrieved party.
So based on what we have gone so far, let us
now try to summarize the instances under Rule
114 where bail is a matter of right, discretion, or is
denied.
Q: When is bail a MATTER OF RIGHT:
A: Bail is a matter of right –
1. Before conviction by the MTC, MTC,
or MCTC;
2. After conviction by the MTC;
3. Before conviction by the RTC of an
offense not punishable by death,
reclusion perpetua or life imprisonment;
and
4. Before conviction by the RTC of an
offense punishable by death reclusion
or life imprisonment when evidence of
guilt is not strong. This is because once
the court finds that the evidence of
guilt is strong, bail becomes a matter
of right.
Q: When is bail DISCRETIONARY?
A: Bail is discretionary after conviction by the
RTC of an offense not punishable by death,
reclusion perpetua, or life imprisonment provided,
the case does not fall under the 3rd paragraph of
Section 5 [a] – [e].
Q: When shall bail be DENIED?
A: The bail shall be denied under the
following instances:
1. before conviction by the RTC of an
offense punishable by death, reclusion
perpetua or life imprisonment when the
evidence of guilt is strong;
2. after conviction by the RTC and the
penalty imposed is death, reclusion
perpetua or life imprisonment. He can
appeal but in the meantime, there is
no bail; and
3. after conviction by the RTC where the
penalty imposed is imprisonment
exceeding 6 years but no more than 20
years, and the case falls under Section
5 [a] – [e].
So, recidivist, or you escaped from
confinement, or there is undue risk, etc. ayan!
Pagnahulog ka diyan, bail shall not be granted.
And this is where the question of Ms.
Masepequeña will come in:
Q: Mr. Peloton was charged with a crime
(sorry kaayo Gay! ) punishable by temporal. He
was convicted but the penalty is 6 years or less
(for instance, there are mitigating
circumstances) and he wants to appeal to the CA.
Is it a matter of right or a matter of discretion?
A: My view is, it is a matter of discretion but
even if these circumstances (recidivist, etc.) still
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 88

bail can be granted. That is the effect. Whereas, if corporation duly authorized by
its board of directors. (10a)
the penalty is 6 years 1 day to 20 years and he is a
recidivist, etc., bail shall not be granted. But if it is
Q: What do you mean by a property bond?
only 6 years or less, it may be granted although it
A: Section 11:
is not a matter of right.
SEC. 11. Property bond, how
SEC. 9. Amount of bail; posted. – A property bond is an
guidelines. – The judge who undertaking constituted as lien
issued the warrant or granted on the real property given as
the application shall fix a security for the amount of the
reasonable amount of bail bail. Within ten (10) days
considering primarily, but not after the approval of the bond,
limited to, the following the accused shall cause the
factors: annotation of the lien on the
(a) Financial liability of certificate of title on file
the accused to give bail; with the Registry of Deeds if
(b) Nature and circumstance the land is registered, or if
of the offense; unregistered, in the
(c) Penalty for the offense Registration Book on the space
charged; provided therefore, in the
(d) Character and reputation Registry of Deeds for the
of the accused; province or city where the land
(e) Age and health of the lies, and on the corresponding
accused; tax declaration in the office
(f) Weight of the evidence of the provincial, city and
against the accused; municipal assessor concerned.
(g) Probability of the Within the same period, the
accused appearing at the trial; accused shall submit to the
(h) Forfeiture of other court his compliance and his
bail; failure to do so shall be
(i) The fact that the sufficient cause for the
accused was a fugitive from cancellation of the property
justice when arrested; and bond and his re-arrest and
(j) Pendency of other cases detention. (11a)
where the accused is on bail.
Excessive bail shall not be SEC 12. Qualifications of
required. (9a) sureties in property bond. –
The qualifications of sureties
Q: When bail shall be granted, how much is in a property bond shall be as
follows:
the amount of it? (a) Each must be a resident
A: There are guidelines under Section 9 – owner of real estate within the
marami eh! Of course one of the factors is Philippines;
(b) Where there is only one
paragraph [c] – penalty for the offense charged. surety, his real estate must be
That’s why the DOJ has a guidelines eh na kapag worth at least the amount of
ganito ang penalty, ganito a ng i-recommend mo. undertaking;
(c) If there are two or more
But that is only one of the factors. The court can sureties, each may justify in
either follow the recommendation or raise it or an amount less than that
lower it because aside from that, marami pa eh expressed in the undertaking
but the aggregate of the
like financial ability of the accused, character or justified sums must be
reputation of the accused, etc. And all these equivalent to the whole amount
guidelines where taken from the ruling in the of the bail demanded.
In all cases, every surety
case of VILLASEÑOR VS. ABANO (21 SCRA 312) must be worth the amount
specified in his own
Q: What do you mean by corporate surety? undertaking over and above all
just debts, obligations and
A: Section 10: properties exempt from
execution. (12a)
SEC. 10. Corporate surety. –
Any domestic or foreign SEC. 13. Justification of
corporation, licensed as a sureties. – Every surety shall
surety in accordance with law justify by affidavit taken
and currently authorized to act before the judge that he
as such, may provide bail by a possesses the qualification
bond subscribed jointly by the prescribed in the preceding
accused and an officer of the section. He shall describe the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 89
property given as security,
stating the nature of his
title, its encumbrances, the
number and amount of other
bails entered into by him and
still undischarged, and his
other liabilities. The court
may examine the sureties upon
oath concerning their
sufficiency in such manner as
it may deem proper. No bail
shall be approved unless the
surety is qualified. (13a)
Q: What do you mean by cash deposit?
A: Section 14:
SEC. 14. Deposit of cash as
bail. – The accused or any
person acting in his behalf may
deposit in cash with the
nearest collector of internal
revenue or provincial, city, or
municipal treasurer the amount
of bail fixed by the court, or
recommended by the prosecutor
who investigated or filed the
case. Upon submission of a
proper certificate of deposit
and a written undertaking
showing compliance with the
requirements of section 2 of
this Rule, the accused shall be
discharged from custody. The
money deposited shall be
considered as bail and applied
to the payment of fine and
costs while the excess, if any,
shall be returned to the
accused or to whoever made the
deposit. (14a)
RECOGNIZANCE
Let’s go to the 4th type of bail – recognizance
– which are not understood by many how it
operates.
SEC. 15. Recognizance. –
Whenever allowed by law or
these Rules, the court may
release a person in custody on
his own recognizance or that of
a responsible person. (15a)
So, no money – nothing is filed in court. “On
my word of honor, I will appear when the court
requires me to appear. If I’m convicted, don’t be
afraid. I will not runaway.” Court: “Word of honor
ha? [promise ha] OK!” – Yan! Yan ang recognizance.
Or, instead of going to jail, “Payag man ang
mayor na doon na lang daw ako sa kanya. Siya daw
ang bahala sa akin.” Court: “OK. You will be in the
custody of the mayor. Kung may problema, or anytime
you are required to appear, you appear!” And the
mayor will promise, “Akong bahala dito. Hindi ito
tatakbo [puputulan ko ng paa!] Sagot ko ito.” – Yan ang
recognizance – word of you word or word of a
responsible person.
Para bang character loan – you borrow
money, no collateral and I promise to pay you.
Creditor: “Believe ako sa iyo. Your word is as
good as a security. OK!”
Q: Is recognizance possible in all criminal
cases?
A: NO. Under the rules, recognizance is only
allowed whenever allowed by law or these Rules. So,
if it is not allowed by law or the rules, hindi
puwede.
Q: How do you define recognizance?
A: A recognizance is an obligation of record,
entered into before some court or magistrate duly
authorized to take it, with the condition to do
some particular act, the most usual condition in
criminal cases being the appearance of the
accused for trial. (People vs. Abner, 87 Phil. 566,
569)
The next question is, what are the instances
where recognizance is allowed by the law or this
Rules? There are four (4) instances originated and
as mentioned by the SC in the 1997 case of
ESPIRITU VS. JOVELLANOS (280 SCRA 579). But
even before JOVELLANOS came out, the 1985
Rules says that recognizance is possible if
allowed by law or the Rules. Ano man yang “by
law or this Rules”? So as early as 1985, I was
already gathering the instances when the law or
the rules allow it. And I gathered four (4). Meron
pa man sigurong iba, pero di ko pa siguro nakita.
That is why when the case of Jovellanos came out,
tiningnan ko – exactly the very four! – not more,
not less. [ehem! ehem!]
Q: What are the instances when recognizance
is allowed by the law or this Rules?
A: In the case of ESPIRITU VS. JOVELLANOS
(280 SCRA 579):
1. Under RA 6036 – when the offense
charged is for violation of an
ordinance, a light felony, or a criminal
offense, the imposable penalty for
which does not exceed 6 months
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 90
imprisonment and/or P2,000 fine,
under the circumstances provided in
R.A. No. 6036;
2. Rule 114, Section 16, last paragraph:
“A person in custody for
a period equal to or more
than the minimum of the
principal penalty prescribed
for the offense charged,
without application of the
Indeterminate Sentence Law
or any modifying
circumstance, shall be
released on a reduced bail
or on his own recognizance,
at the discretion of the
court.”
3. Rule 114, Section 24:
“No bail shall be allowed
after a judgment of
conviction has become final.
If before such finality, the
accused applies for
probation, he may be allowed
temporary liberty under his
bail. When no bail was filed
or the accused is incapable
of filing one, the court may
allow his release on
recognizance to the custody
of a responsible member of
the community. In no case
shall bail be allowed after
the accused has commenced to
serve sentence.”
4. Under PD 603 (Child and Youth
Welfare Act) – in case of a youthful
offender held for physical and mental
examination, trial, or appeal, if he is
unable to furnish bail and under the
circumstances envisaged in P.D. No.
603, as amended.
Those are the four instances where
recognizance is allowed. So it is not possible in all
cases.
This reminds of a former student of this law
school who graduated way back in 1977. He is
from Agusan. I remember during the mid-80’s, I
went to Cagayan. Wala pa itong Buda, so I have
to travel via Butuan. On my way back at around 4
P.M., we were riding in a private vehicle, we
stopped at a town in Agusan. We took a break
kay kapoy eh. There were numerous big houses
there. And then I saw this attorney so and so and I
recognized him because he was a graduate of this
school. Anyway I’m not in a hurry, I went there.
So I met this lawyer and I gave my name. ATTY:
“Uy! You! We did not see each other for a long time.
Kumusta? [videoke ta!]” DEAN: “I was just passing by.
What are you doing now? [na kay fundador diha?]” ATTY:
“I’m practicing law. Karamihan criminal.” And I
noticed marami siyang helpers sa bahay niya. So I
asked him, “Ba’t karami mo namang houseboys?”
ATTY: “They are not houseboys, Sir. They are all
accused!” DEAN: “Why are they with you?” ATTY:
“Recognizance.” DEAN: “Ano pala mga crimes
nila?” ATTY: “Murder, Homicide.” Na-shock ako!!
Paano nakakuha ng recognizance ito eh hindi
man puwede yan because recognizance is only
possible if allowed by law or the rules. Pero
nobody is complaining naman there.
SEC. 16. Bail, when not
required; reduced bail or
recognizance. – No bail shall
be required when the law or
these Rules so provide.
When a person has been in
custody for a period equal to
or more than the possible
maximum imprisonment prescribed
for the offense charged, he
shall be released immediately,
without prejudice to the
continuation of the trial or
the proceedings on appeal. If
the maximum penalty to which
the accused may be sentenced is
destierro, he shall be released
after thirty (30) days of
preventive imprisonment.
A person in custody for a
period equal to or more than
the minimum of the principal
penalty prescribed for the
offense charged, without
application of the
Indeterminate Sentence Law or
any modifying circumstance,
shall be released on a reduced
bail or on his own
recognizance, at the discretion
of the court. (16a)
Let’s go further. As a general rule, when the
criminal case is filed, there will be warrant of
arrest. If there is warrant of arrest, there must be a
bail either in cash or recognizance. But Section 16
provides that no bail shall be required when the
law or these Rules so provide. This is now the
question:
Q: What are the instances where despite the
pendency of the criminal case, the accused is not
required to post bail? Meaning, he is exempt from
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 91

putting up a bail bond because the law or the Any person in custody who is
not yet charged in court may
rules says so. apply for bail with any court
A: The following are the instances: in the province, city, or
municipality where he is held.
(17a).
1. Under RA 6036 – yung mga 6 months
or less under the conditions
Section 17 is another important provision on
mentioned therein;
where to file the bail. Normally, you file the bail
before the same court where you case is pending.
2. When the crime is covered by the
But if the judge is not around, under paragraph
Summary Rules because of Section 16
[a], puwede man any RTC judge, MTC judge, etc.
of Rule 114. When a case is filed under
the Summary Rules, a mere notice is
Q: Suppose your case is in Davao and you are
sufficient. No need of a warrant of
arrested in Manila, can you post bail in Manila?
arrest.
A: YES because it would be very tedious if
you will be arrested and brought back in Davao
3. Section 9 [b] of Rule 112 (this is a new
just to post bail. And under paragraph [a], it may
sentence):
be filed with any RTC of such place. And of
“x x x x However, if course, the judge there will accept the bail and
the judge is satisfied transmit everything to Davao.
that there is no
necessity for placing the
accused under custody, he Q: What are the instances where the accused
may issue summons instead is only allowed to post bail before the very same
of a warrant of arrest.” court where the case is pending?
A: Under paragraph [b], the following are the
So, the court is satisfied that there instances:
is no need to issue a warrant of arrest
maybe because the court believes that 1. if you seek to be released on
you will not run away. In effect, no recognizance, no other judge can grant
bail shall be required. it other the judge where you case is
pending;
SEC. 17. Bail, where filed.
– (a) Bail in the amount fixed 2. when bail is a matter of discretion. For
may be filed with the court example: Ms. Tormon is accused of a
where the case is pending, or capital offense and she would like to
in the absence or
unavailability of the judge file a petition for bail because the
thereof, with any regional evidence of guilt is not strong, that
trial judge, metropolitan trial should be decided by the very court
judge, municipal trial judge,
or municipal circuit trial where her case is pending.
judge in the province, city or
municipality. If the accused is
arrested in a province, city,
or municipality other than Q: Is the MTC entitled to entertain a petition
where the case is pending, bail for bail?
may also be filed with any A: YES
regional trial court of said
place, of if no judge thereof
is available, with any Q: What are the instances when a MTC is
metropolitan trial judge, entitled to entertain applications for bail?
municipal trial judge, or
municipal circuit trial judge A: The following are the instances:
therein.
(b) Where the grant of bail 1. Under paragraph [b], the application
is a matter of discretion, or
the accused seeks to be may be filed in the court where the
released on recognizance, the case is pending, whether on
application may only be filed
preliminary investigation, trial, or
in the court where the case is
pending, whether on preliminary appeal. With this provision, it would
investigation, trial, or seem puwede;
appeal.
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2. MTC can entertain petitions for bail in
cases not cognizable by it filed before it
for purposes of preliminary
investigation. That is why in one case
the SC held that inferior courts (MTC)
can entertain applications for bail in
capital offenses as an incident to its
power to conduct preliminary
investigation. (Manigbas vs. Luna, 98
Phil. 466); and
3. Section 35 of the Judiciary law (Special
jurisdiction of the MTC) –the MTC
may hear and decide petitions for a
writ of habeas corpus or applications for
bail in the absence of ALL the RTC
judges.
Let’s go now to the last paragraph of Section
17:
“Any person in custody who
is not yet charged in court may
apply for bail with any court
in the province, city, or
municipality where he is held.”
This is one provision that has stunned so
many: how can a person be in custody who is not
yet charged in court? He is already in custody
pero wala pa mang kaso? What is contemplated
under the last paragraph of Section 17 is Rule 112
Section 7 on INQUEST preliminary investigation
– when a person is lawfully arrested without a
warrant, he will be detained immediately without
preliminary investigation. But if he demands a
preliminary investigation, he can get it but he
must waive the effects of Article 125 of the RPC.
Section 7, Rule 112, last sentence of second
paragraph provides: “Notwithstanding the waiver,
he may apply for bail and the investigation must be
terminated within fifteen (15) days from its
inception.” So he can ask for bail even if he is not
yet charged in court.
Q: If you apply for bail with any court in the
province, city or municipality, ano ang title and
number ng petition mo? You cannot put there
“People of the Philippines versus…” kay wala pa
mang criminal case? What will be your reference?
A: “IN RE: PETITION FOR BAIL.” So bahala
na kayo diyan. Bahala na ang clerk of court how
to docket it. Basta that is my right under the law!
So you think of your own caption.
SEC. 21. Forfeiture of bail.
– When the presence of the
accused is required by the
court or these Rules, his
bondsmen shall be notified to
produce him before the court on
a given date and time. If the
accused fails to appear in
person as required, his bail
shall be declared forfeited and
the bondsmen given thirty (30)
days within which to produce
their principal and to show why
no judgment should be rendered
against them for the amount of
their bail. Within the said
period, the bondsmen must:
(a) produce the body of
their principal or give the
reason for his non-production;
and
(b) explain why the accused
did not appear before the court
when first required to do so.
Failing in these two
requisites, a judgment shall be
rendered against the bondsmen,
jointly and severally, for the
amount of the bail. The court
shall not reduce or otherwise
mitigate the liability of the
bondsmen, unless the accused
has been surrendered or is
acquitted. (21a)
Another important provision is Section 21 –
how bail is forfeited.
If you are required to appear in court for an
arraignment, or for some other reason, and you
did not appear, the first step is, upon motion of
the prosecution, the court will issue an order to
confiscate the bond and the court will also direct
the bondsmen:
1. to produce the body of their principal
within 30 days; AND
2. to explain why the accused did not
appear before the court when first
required to do so.
Dalawa yan – (1) produce him within 30 days,
and (2) explain why you failed to produced him.
If you satisfy both conditions, no problem – the
court will issue an order lifting the order of the
forfeiture.
Q: Suppose you failed to comply both or one
of the conditions, what will happen?
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A: The court will render judgement on the
bond. Meaning, the bonding company is now
liable on its bond.
So ang una, order of confiscation or forfeiture
of the bond. The second stage is, if the conditions
are not met, there will be judgment against the
bond. So that is the step-by-step application of
Section 21.
SEC. 23. Arrest of accused
out on bail. – For the purpose
of surrendering the accused,
the bondsmen may arrest him or,
upon written authority endorsed
on a certified copy of the
undertaking, cause him to be
arrested by a police officer or
any other person of suitable
age and discretion.
An accused released on bail
may be re-arrested without the
necessity of a warrant if he
attempts to depart from the
Philippines without permission
of the court where the case is
pending. (23a)
Section 23 is an instance of a valid warrantless
arrest. This is a continuation of Section 5 Rule 113.
For the purpose of surrendering the accused,
they can arrest him without a warrant. The
bondsmen is his jailer. The theory of bond, lalo na
yung corporate bond, is that the sureties or
bondmen becomes you jailer in the eyes of the
law, and you are their prisoner. They took over
the government. In reality, they are not really
imprisoning you. You are a free man. And
importante, you put up money for you release –
you pay premium, back up your commitment
with property. Parang insurance din ito eh.
Now halimbawa, nainis sila sa iyo? – hindi ka
nagabayad ng premium – puwede ka man nila
arestuhin bah! The bondsmen can have you
arrested without a warrant. So diretso ka sa jail.
Let’s go to last paragraph of Section 23. If you
are attempting to leave the Philippines, lalo na
kung may hold departure order, even if you are
on bail, you can be arrested without a warrant.
Now, we will go to this question related to you
constitutional right to travel:
Q: How do you reconcile Section 23 with the
constitutional right to travel?
A: In the 1986 case of
MANOTOC vs. COURT OF
APPEALS
142 SCRA 149
ISSUE: How come if you are out
on bail, you cannot leave the country
without the permission of the court?
HELD: “A court has the power to
prohibit a person admitted to bail
from leaving the Philippines. This is a
necessary consequence of the nature
and function of a bail bond. The
condition imposed upon petitioner to
make himself available at all times
whenever the court requires his
presence operates as a valid restriction
on his right to travel.” (because this is
one of the conditions of the bail bond –
you must be available whenever the court
requires you to appear.)
“Indeed, if the accused were
allowed to leave the Philippines
without sufficient reason, he may be
placed beyond the reach of the courts.
If the sureties have the right to prevent
the principal from leaving the state,
more so then has the court from which
the sureties merely derive such right,
and whose jurisdiction over the
person of the principal remains
unaffected despite the grant of bail to
the latter.”
“The court cannot allow the
accused to leave the country without
the assent of the surety because in
accepting a bail bond or recognizance,
the government impliedly agrees that
it will not take any proceedings with
the principal that will increase the
risks of the sureties or affect their
remedies against him. Under this rule,
the surety on a bail bond or
recognizance may be discharged by a
stipulation inconsistent with the
conditions thereof, which is made
without his assent.”
So, if your own bondsmen have the right to
prevent you, with more reasons with the court
who has the complete jurisdiction over your
person. But even if the court wants to grand you
permission to leave, gusto mong mag-tour, but
sabi ng bondsmen, “Ayoko nga!”, then the court
has no power to grant your request because the
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bondsmen must also agree. (Manotoc vs. CA,
supra)
SILVERIO vs. COURT OF
APPEALS
April 8, 1991
FACTS: Silverio was charged
criminally for violation of Revised
Securities Act. For more than two
years, there were series of
postponements of the arraignment
scheduled therein. He could not be
arraigned because he had gone abroad
several times without the necessary
court approval. The prosecution got
fed up already. So upon motion of the
prosecution, the trial court ordered the
DFA to cancel Silverio’s passport or to
deny the application to re-new the
passport. The Commission on
Immigration is also ordered to prevent
Silverio from leaving the country.
Now, according to Silverio, the
court’s orders are unconstitutional
because under the Constitution, courts
can impair the right of a citizen to
travel only on the ground of national
security, public safety or public health.
Silverio: “Is there an issue of national
security? Wala man! Public safety?
Wala man! Public health? Wala rin!
Therefore, you cannot prevent me
from travelling.”
The SC here traced the history of
that constitutional provision. How did
that provision came out?
HELD: The phraseology in the
1987 Constitution was a reaction to the
ban on international travel imposed
under the previous regime when there
was a Travel Processing Center, which
issued certificates of eligibility to
travel upon application of an
interested party. (because during the
Marcos era, he created a travel
processing agency headed by General
Ver, where every Filipino who wants
to travel abroad must be cleared by
that office.)
Article III, Section 6 of the 1987
Constitution should by no means be
construed as delimiting the inherent
power of the courts to use all means
necessary to carry their orders into
effect in criminal cases pending before
them.
In other words, the court has always the
power to prevent an accused from leaving for
abroad. And that constitutional provision was
never interpreted to limit the power of the court.
Therefore, Silverio was citing the wrong
provision. The philosophy does not apply to
Silverio. Yaan!
SANTIAGO vs.
GARCHITORENA
December 2, 1993
FACTS: Several criminal cases
were filed against Miriam Santiago
arising from her tenure as
Immigration Commissioner. Now, she
was interviewed by the media and she
said that she is leaving in a few days
for abroad because she was offered a
fellowship grant by the Harvard
University. Nabasa ng Sandiganbayan
ang interview sa newspaper, “Uy!
Aalis! Alright, Hold-Departure Order!”
Santiago questioned the order.
ISSUE: May a court trying a
criminal case issue a hold-departure
order motu propio to prevent the
accused from leaving the country even
if the prosecution did not file any
motion to issue such order?
HELD: YES. “The court has the
power to issue motu propio a hold-
departure order. The hold-departure
order is but an exercise of the court’s
inherent power to preserve and to
maintain the effectiveness of its
jurisdiction over the case and the
person of the accused.”
MARCOS vs.
SANDIGANBAYAN
247 SCRA (August 9, 1995)
FACTS: Criminal charges were
filed against Imelda Marcos. In one of
the cases, she was convicted by the
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Sandiganbayan. After conviction, she
filed a motion for reconsideration and
while her motion was p ending, she
filed a motion for leave to travel
abroad for treatment of hypertensive
heart disease, uncontrolled angina
pectoris, and anterior myocardial
infarction. The motion was supported
by medical reports prepared by her
physician and cardiologist and other
doctors in Makati Medical Center.
Presiding Justice Garchitorena
referred the issue to a committee of
cardiologists from Health Center of
the Philippines for extra opinion on
some questions among which was: “Is
Marcos’ condition fatal? Or, Is she in
danger of dying? The committee
submitted a report which was heard in
the presence of the two lawyers of
Marcos. Report ng committee: she was
sick but the evidence not confirm the
allegation that Mrs. Marcos is in the high
risk group of sudden cardiac death. In
other words, she is sick but she is not
in danger of dyiing.
With that, the Sandiganbayan, “Ah
hindi pala malala eh! So, wala! Motion
denied!” Marcos went to the SC
attacking the Sandiganbayan order
alleging that the court adopted an
unusual and unorthodox conduct by
motu propio conducting a third party
asking the latter to give an opinion.
Marcos: “Nobody is questioning. Bakit ba
itong Sandiganbayan will not take the
words of my doctors? Parang walang
kumpiyansa!”
HELD: “The Sandiganbayan acted
properly. Respondent court had to
seek expert opinion because
petitioner's motion was based on the
advice of her physician. The court
could not be expected to just accept
the opinion of petitioner's physician in
resolving her request for permission to
travel. The subject lay beyond its
competence and since the grant of the
request depended on the verification
of the claim that petitioner was
suffering from a medical condition
that was alleged to be serious and life
threatening, the respondent court, we
think, followed the only prudent
course available of seeking the opinion
of other specialists in the field.”
“Indeed, when even in their own
field of expertise (law) courts are
allowed to invite amici curiae to shed
light on recondite points of law, there
is no reason for denying them
assistance on other subjects.”
“Perhaps the best proof that she is
not in the group is the fact that she ran
in the last election for a seat in the
House of Representatives and won. It
may be assumed that she waged an
arduous political campaign but
apparently is none the worse for it.”
Meaning, even in law which is already your
field of expertise, the court are even allowed to
seek the help of other lawyers, lalo na when it
comes to the field of medicine. And finally after
one year, she ran for congresswoman in Leyte
and she won. Of course when you campaign, you
have to undergo a terrible schedule of campaigns.
Eh bakit buhay ka pa? So in other words, you are
not really in danger of dying. And she is very
much alive now.
COJUANGCO vs.
SANDIGANBAYAN
300 SCRA 367 [1998]
FACTS: Cojuangco has several
pending cases before the
Sandiganbayan. And there is a travel
ban everytime he travels abroad.
ISSUE: Is there a need of hold-
departure orders everytime Cojuangco
travels abroad considering that many
things happened to Cojuangco?
HELD: “We resolve in the
negative. The travel band should be
lifted, considering all the
circumstances now prevailing. It now
becomes necessary that there be strong
and compelling reasons to justify the
continued restriction on Cojuangco’s
right to travel abroad. Admittedly, all
of Cojuangco’s previous requests to
travel abroad has been granted and
that Cojuangco has always returned to
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the Philippines and complied with the plea. Once you entered your plea, all the defects
restrictions imposed on him.” are considered waived. But the posting of bail
“The necessity of further denying alone is not considered as waiver to raise those
Cojuangco’s right to travel abroad, issue.
with attendant restrictions, appears
less than clear. The risk of flight is
further diminished in view of
Cojuangco’s recent reinstatement as
Chairman and Chief Executive of San
Miguel Corporation, though he has
now more justification to travel so as
to oversee the entire operations of that
company. In this regard, it has to be
conceded that his assumption of such
vital post has come at a time when the
current economic crisis has adversely
affected by international operations of
many companies, including San
Miguel.”
“The need to travel abroad
frequently on the party of Cojuangco,
to formulate and implement the
necessary corporate strategies and
decisions, could not be forestalled.
These considerations affecting
Cojuangco’s duties to a publicly held
company, militate against imposing
further restrictions on Cojuangco’s
right to travel abroad.”
Rule 115

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

objections on illegal arrest, lack
of or irregular preliminary
investigation. – An application for
or admission to bail shall not bar I know you are not anymore a stranger to
the accused from challenging the many of these provisions because many of them
validity of his arrest or the are already found under the Constitution.
legality of the warrant issued
therefore, or from assailing the
regularity or questioning the Section 1 – Rights of
absence of a preliminary accused at the trial – In all
investigation of the charge against criminal prosecutions, the
him, provided that he raises them accused shall be entitled to
before entering his plea. The court the following rights;
shall resolve the matter as early
as practicable but not later than a.) To be presumed innocent
the start of the trial of the case. until the contrary is proved
(n) beyond reasonable doubt.
x x x x x

Section 26 is a new provision.

Paragraph [a] emphasizes the degree of proof
in criminal cases.
Q: If you post bail, are you under estoppel to
question the validity of the arrest or the
Why is it in criminal case an accused enjoys
regularity or absence of a preliminary
this presumption? Why does the law give the
investigation?
accused the presumption of innocence? The SC
A: Under Section 26, NO. The pivotal point is
already answered that the reason is to make the
for as long as you have not yet entered your
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 97
fight at least equal. In criminal cases, all the
resources are directed against the accused. It is
the accused versus the People of the Philippines –
so you are fighting the government, and the
government has all the resources at its command
– the PNP, NBI, etc. Anong laban mo diyan? So at
least para mag-tabla-tabla ng konti ang laban, the
law will give certain presumptions in your favor.
In the case of
PEOPLE vs. SEQUERRA
October 12, 1987
HELD: “Confronted by the full
panoply of state authority, the accused
is accorded the presumption of
innocence to lighten and even reverse
the heavy odds against him. Mere
accusation is not enough to convict
him, and neither is the weakness of his
defense. The evidence for the
prosecution must be strong per se,
strong enough to establish the guilt of
the accused beyond reasonable doubt.
Otherwise, he is entitled to be freed.”
“But as solicitous as the Bill of
Rights is of the accused, the
presumption of innocence is not an
automatic or blanket exoneration. It is
at best only an initial protection. If the
prosecution succeeds in refuting the
presumption, it then becomes the
outlook of the accused to adduce
evidence that will at least raise that
inkling of doubt that he is guilty. Once
the armor of the presumption is
pierced, so to speak, it is for the
accused to take the offense and ward
off the attack.”
So the accused cannot rely forever in the
presumption of innocence. This is a disputable
presumption. The prosecution can destroy that
presumption by presenting evidence that you are
guilty and once the prosecution has presented
that you cannot anymore rely on this
presumption. It is now your duty to present
evidence that you are innocent.
b.) To be informed of the
nature and cause of the
accusation against him.
Yes, you should know why you are there. It is
very awkward that you are charged without even
knowing what the charge is all about. That is why
there is an arraignment to make everything
formal.
Q: Can you waive the right to be informed of
the nature and cause of the accusation against
him?
A: NO. It is not waivable because public
interest is involved in this right, the public having
an interest in seeing to it that no person is
unlawfully deprived of his life or liberty. (U.S. vs.
Palisoc, 4 Phil. 207)
There are certain rights of the accused that are
waivable; there are certain rights that cannot be
waived. For example: to be presumed innocent until
the contrary is proved – can you waive that? “Ah
OK lang, you can presume me guilty!” I don’t
think the court will agree with that. That is not
waivable.
And mind you, there was a bar examination
in the past, where the examiner asked this
question – “among the rights of the accused
outline those which can be waived and cannot be
waived.” So practically you have to know [a] – [i].
It’s not only a question of enumerate the rights of
the accused but segregate those which can be
waived and those which cannot be waived.
Medyo mahirap yan. But if you have a lot of
common sense, [meaning, ang common sense is common sa
iyo!] malaman mo man ba! “To be presumed innocent
– pwede bang ma-waive ito? Mukang hindi
man...” Yaan!
c.) To be present and defend
in person and by counsel at
every stage of the proceedings,
from arraignment to
promulgation of the judgment.
The accused may, however, waive
his presence at the trial
pursuant to the stipulations
set forth in his bail, unless
his presence is specifically
ordered by the court for
purposes of identification. The
absence of the accused without
justifiable cause at the trial
of which he had notice shall be
considered a waiver of his
right to be present thereat.
When an accused under custody
escapes, he shall be deemed to
have waived his right to be
present on all subsequent trial
dates until custody over him is
regained. Upon motion, the
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accused may be allowed to
defend himself in person when
it sufficiently appears to the
court that he can properly
protect his rights without the
assistance of counsel.
Paragraph [c] is quite important.
This is a right to be present from arraignment
to promulgation – right yan eh! – I want to be
there.
Q: But technically, do you have the obligation
to be there?
A: NO. This right is waivable because the law
says the accused may however waive his
presence during the trial, unless the presence of
the accused is specifically ordered by the court
for purposes of identification.
This was taken from the case of NINOY
AQUINO, JR vs. MILITARY COMMISSION
where Ninoy was arrested and tried in a military
court and he refused to participate in the
proceedings. And issue now is, can he be forced
by the court to appear? SC: YES, because how can
he be identified if he will not appear? That is why
it is now found in the Rules.
CARREDO vs. PEOPLE
183 SCRA 273
ISSUE: After arraignment he can
waive his presence during the trial,
but can he be ordered arrested by the
court for an appearance, upon
summons to appear for purposes of
identification?
HELD: YES. “Waiver of
appearance and trial in absentia does
not mean that the prosecution is
thereby deprived of its right to require
the presence of the accused for
purposes of identification by its
witnesses which is vital for the
conviction of the accused. Such waiver
of a right of the accused does not
mean a release of the accused from his
obligation under the bond to appear in
court whenever so required. The
accused may waive his right but not
his duty or obligation to the court.”
So, you can waive your right but not your
duty. That is one of the conditions in the bond
under Rule 114, Section 2 [b] – “the accused shall
appear before the proper court whenever so required by
the court or these Rules.”
Q: Now, what happens if during the trial, the
accused did not show up but he was notified?
Can the trial proceed without him?
A: YES, 2nd sentence of paragraph [c]
provides, “The absence of the accused without
justifiable cause at the trial of which he had notice shall
be considered a waiver of his right to be present
thereat.” This is taken from Article II, Section 14
(2), - Trial in absentia.
But take note that in trial in absentia, it
assumes that:
1. the court already acquired jurisdiction
over your person;
2. you were arrested; and
3. you must first be arraigned. So
arraignment is a prerequisite for trial
in absentia to apply.
Q: What is the difference between these two
sentences in [c]: “The absence of the accused without
justifiable cause at the trial of which he had notice shall
be considered a waiver of his right to be present
thereat” and “when an accused under custody
escapes, he shall be deemed to have waived his right to
be present on all subsequent trial dates until custody
over him is regained”?
A: In the first sentence, the accused is absent
without justifiable cause during the particular
trial date, and so the trial may continue. But he
can still appear in the next trial. He only waived
his right to be present on that date but he has not
waived his right to be present on subsequent trial
dates. He has not waived his right to present
evidence.
In the second sentence, iba eh. You escaped or
you jumped bail. You are not only waiving your
right to be present on this date but on all
subsequent dates. And therefore, there can be a
judgment against you when the prosecution rests.
This trial in absentia was explained by the SC
in the case of
PEOPLE vs. AGBULOS
222 SCRA 196 (1993)
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HELD: The prisoner cannot by
simply escaping thwart his continued
prosecution and possibly eventual
conviction provided that:
1. he has been arraigned;
2. he has been duly
notified of the trial; and
3. his failure to appear is
unjustified.
(But how can the prosecution
establish that the accused has been
duly notified of the trial? How can you
notify a person who is hiding? And
how can you say that his failure to
appear is unjustified?)
“The fugitive is deemed to have
waived such notice precisely because
he has escaped, and it is also this
escape that makes his failure to appear
at his trial unjustified. Escape can
never be a legal justification. His
escape will, legally speaking, operate
to his disadvantage as he will be
unable to attend his trial, which will
continue even in his absence and most
likely result in his conviction.”
GIMENEZ vs. NAZARENO
160 SCRA 1 (1988)
FACTS: The accused is arraigned,
then he escaped from jail. The
prosecution moved for the trial to
proceed without him – trial in
absentia. So the prosecution presented
all its witnesses, and then it rested and
submitted the case for decision based
on the prosecution’s evidence alone –
parang ex-parte ba. The judge said
“NO, we will have to hear the accused.
Trial in absentia means the
prosecution can present its evidence
without him but the case will not be
decided until we catch him because
we have to hear him.” The prosecution
went to the SC.
ISSUE #1: Is the court’s
interpretation of trial in absentia
correct?
HELD: NO. Definitely, that is not
the meaning of trial in absentia.
Pagtapos na, eh di tapos na! why wait
for the accused? However, there are
questions. Does an accused, who has
been duly tried in absentia retain his
rights to present evidence on his
behalf and to confront and cross-
examine witnesses who testified
against him? The court said that,
“Upon the termination of a trial in
absentia, the court has the duty to rule
upon the evidence presented in court.
The court need not wait for the time
until the accused who escape from
custody finally decides to appear in
court to present his evidence and
cross-examine the witnesses against
him. To allow the delay of proceedings
for this purpose is to render ineffective
the constitutional provision on trial in
absentia.”
ISSUE #2: Why is it that an
escapee who has been tried in absentia
does not retain his right to cross-
examine witnesses and to present
evidence? How come those rights are
lost?
HELD: “By his failure to appear
during the trial of which he had
notice, he virtually waived these
rights. This Court has consistently
held that the right of the accused to
confrontation and cross-examination
of witnesses is a personal right and
may be waived. In the same vein, his
right to present evidence on his behalf,
a right given to him for his own
benefit and protection, may be waived
by him.” So an escape can be
considered a waiver.
ISSUE #3: If judgment is rendered
as to the said accused and chances are
you would be convicted, would it not
violate his right to be presumed
innocent and right to due process?
HELD: NO, he is still presumed
innocent. “A judgment of conviction
must still be based upon the evidence
presented in court. Such evidence
must prove him guilty beyond
reasonable doubt. Also, there can be
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no violation of due process since the abogado. Ako rin! Ayoko ko rin ng abugado! I’ll be the
accused was given the opportunity to one to prosecute him!” Eh meron mang private
be heard.” If the prosecution does not prosecutor? “Ah hindi na kailangan ng private
present anything, he would be prosecutor! Siya personal, ako personal din!” Can he
acquitted. do that?
A: Let’s go back to Rule 110, Section 16 on
Now, the last sentence of paragraph [c]: whether the rights of the accused and the
offended party are same:
“Upon motion, the accused
may be allowed to defend “Where the civil action for
himself in person when it recovery of civil liability is
sufficiently appears to the instituted in the criminal
court that he can properly action pursuant to Rule 111,
protect his rights without the the offended party may
assistance of counsel.” intervene by counsel in the
prosecution of the offense.”
Take note that under the first sentence of [c]
he can be present and defend in person and by So their rights are different. The offended
counsel. For example, ayaw niya ng abogado? “I party cannot intervene personally. The law will
will defend myself!” Anong mangyari diyan? Is the not allow it. He must have a counsel. Sabihin
right to counsel waivable by the accused? YES. niya, “Wala man akong pera pang-hire ng private
The right to counsel may be waived by the prosecutor?” Eh di yung fiscal! The fiscal will be
accused BUT the waiver must be clear, intelligent the one to come in. That is why we have public
and competent. (People vs. Ben, L-8320, Dec. 20, prosecutors precisely to handle criminal cases.
1955)
d) To testify as a witness
in his own behalf but subject
But now, the guideline is clearer – the accused to cross-examination on matters
can be allowed to defend himself in person “when covered by direct examination.
it sufficiently appears to the court that he can properly His silence shall not in any
manner prejudice him.
protect his rights without the assistance of counsel.”
This is the right of the accused to testify on his
Meaning, although he is not a lawyer, parang
own behalf. But he has no obligation to testify. If
marunong and may common sense naman… the
you connect this to the next right – [e] to be exempt
court will say, “Magbasa ka ng Constitution,
to be a witness against himself (that is why you
Criminal Law, Evidence?” Accused: “Oo! Basahin ko
cannot compel him to testify) – once he testifies
lahat yan! Pag-aralan ko! I will defend myself!” Ah
on his own behalf, he waives the privilege against
problema mo na yan. And of course, whether he
self-incrimination and he can be cross-examined
succeed we do not know. That is your risk. I think
like any other witness. He cannot say, “I will
there is something wrong with that accused.
testify but I refuse to be cross-examined.” That would
be unfair no?
Even lawyers when they have cases, they hire
another lawyer. He will not depend on his own
So, you are waiving your right against self-
skills. Eh kung layman ka? I saw that happen. Ah
incrimination if you testify in your own behalf
talagang kawawa ka. Kahit na siguro yung
because the law is clear – subject to cross-
prosecutor na pinaka-banga, yariin ka talaga
examination on matters covered by the direct
because he will invoke many rules, laws,
examination. You can be cross-examined on
jurisprudence… eh anong malay mo diyan?
matters covered by direct examination. Let’s go
back to Evidence.
According to one statesmen, “A lawyer who
handles his own case has a FOOL for a client.”
Q: What is the rule on cross-examination?
Did you understand that? Meaning: Sino ang
A: Look at Rule 132, Section 6:
lawyer? Lawyer: “Ako!” Sino naman ang client?
Lawyer: “Ako rin!” Ah GAGO ka! “Upon termination of the
direct examination, the witness
Q: Now, I will expand the question: Sabi ng may be cross-examined by the
adverse party as to any matters
offended party, “Alright, ayaw ng akusado na may
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 101
stated in the direct
examination, or connected
therewith, with sufficient
fullness and freedom from
interest or bias, or the
reverse, and to elicit all
important facts bearing upon
the issue.”
So, masyadong broad eh! – You can be cross-
examined on matters or connected with matters in
the direct examination with sufficient fullness
and freedom, etc. – very liberal! It is called the
ENGLISH RULE on cross-examination.
The AMERICAN RULE on cross-examination
is different – the witness can be cross-examined
ONLY on matters stated in the direct
examination.
In the Philippines, we followed the English
Rule because of Rule 132, Section 6. However, it
seems the American Rule on cross-examination is
applied, as an exception, when you are talking
about cross-examining an accused in a criminal
case because of paragraph [d] – subject to cross-
examination on matters covered by the direct
examination.
So we follow the American Rule on cross-
examination of the accused in criminal cases. Mas
limitado! Sabihin mo sa mga judges yan!
Maraming hindi alam yan eh, because I knew of a
graduate here, ginamit niya talaga ang rule. Pag-
cross-examine ng prosecution sa kanyang cliente
who is the accused, object siya, “Objection!”
Prosecution: “No! This is cross-examination! We are
testing the credibility of the accused to testify.” Sabi
niya, “No! No! No! We are following the American
Rule on cross-examination of the accused under Rule
115 and you are citing the English Rule – the general
rule – under Rule 132!” Sabi ng judge, “Ano ba yang
American Rule, English Rule?”
Naloko na! Sabi nung lawyer, “Ganito pala ito!
What I learned in law school is different from what I
see!” Talagang ganyan yan. Kailangang masanay
kayo diyan. Just like [Atty.] Ceniza. He was
talking to me last week. He was telling me of
what happened in Davao Oriental in one MTC.
Sabi niya, “Ganito! Ganito! Parang niluto man
ako?!” Talagang niluto ka! Ganyan gud yan diyan
sa Davao Oriental – they knew each other! So you
have to get used to it. Kapag matapang ka, file ka
ng kaso. File-an mo silang lahat! That is the
beauty of law in the classroom, and the tragedy of
law outside! Yaan!
Q: Now, what is the effect if the accused does
not want to testify on his own behalf?
A: No unfavorable deduction can be drawn
from the neglect or refusal of an accused to
testify. (U.S. vs. Luzon, 4 Phil. 343) His silence is
not in any manner prejudice him. (paragraph [d])
Meaning, if he refuses to testify, that should
not be taken against him because of his right to
remain silent. He can testify if he wants to. Kung
ayaw niya, puwede rin. Admission by silence is
not generally applicable. ALTHOUGH there are
one or two decisions of the SC where it said that
if the evidence presented by the prosecution is
overwhelming, the accused should testify. One of
these cases is the 1998 case of
PEOPLE vs. DELMENDO
296 SCRA 371 [1998]
ISSUE: If the accused refuses to
testify, can it be taken against him?
HELD: General Rule is NO. BUT
the SC said in this case, “An adverse
inference may also be deduced from
accused’s failure to take the witness
stand. While his failure to testify
cannot be considered against him, it
may however help in determining his
guilt. The unexplained failure of the
accused to testify, under a
circumstance where the crime
imputed to him is so serious that
places in the balance his very life and
that his testimony might at least help
in advancing his defense, gives rise to
an inference that he did not want to
testify because he does not want to
betray himself.”
“An innocent person will at once
naturally and emphatically repel an
accusation of crime, as a matter of self-
preservation, and as precaution
against prejudicing himself. A
person’s silence, therefore, particularly
when it is persistent, may justify an
inference that he is not innocent. Thus,
we have the general principle that
when an accused is silent when he
should speak, in circumstances where
an innocent person so situated would
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 102
have spoken, on being accused of a
crime, his silence and omission are
admissible in evidence against him.
Accordingly, it has been aptly said
that silence may be assent as well as
consent, and may, where a direct and
specific accusation of crime is made,
be regarded under some
circumstances as a quasi-confession.”
And to my mind, that was the risk which
Erap was taking during the impeachment trial
because his lawyers never agree that Erap will
testify because lalong masisira si Erap kung mag-
testify siya. Estrada is their greatest nightmare.
He is one person who cannot control his mouth
and once he starts talking, he does not know what
his saying.
That is why his lawyers are already afraid
that if the second envelope will be opened, the
evidence of the prosecution becomes
overwhelming, and there is no other choice but to
Estrada to testify. So hangga’t maaga pa, patayin
na! But they were not anticipating that by killing
that evidence, it hastens Estrada’s downfall!
[e] To be exempt from being
compelled to be a witness
against himself.
This is the right against self-incrimination –
Nemo tenetur seipsum accusare.
Take note that the right of the accused against
self-incrimination is not limited to testimonial
evidence. According to the SC, it refers not only
to testimonial compulsion but also to production
by the accused of incriminating documents and
things. (Villaflor vs. Summers, 41 Phil. 62) So you
cannot subpoena his personal documents.
However, supposed you are asked to perform
a mechanical act, for example footprint, “Ilagay
mo nga yang paa mo diyan beh! Let’s find out kung
pareho kayo ng size nung footprint.” This is not
covered. Mechanical lang yan eh – physical act.
However, to produce specimen signature requires
concentration and intelligence. This is covered by
the protection. (People vs. Otadora, 86 Phil. 244;
Bermudez vs. Castillo, 64 Phil. 433; Beltran vs.
Samson, 53 Phil. 570)
There was a tricky question in the Bar exam in
the past:
PROBLEM: The accused is charged with
falsification for writing a falsified letter. The
prosecution present its evidence that this letter
was written by the accused. The accused said,
“No, that is not my handwriting.” On cross-
examination, he was asked to write on a piece of
paper as dictated. The defense object on the
ground of violation of the right to self-
incrimination. Rule on the objection.
ANSWER: The objection should be overruled.
The case is not covered by the right against self-
incrimination. He can be compelled because he
testified that it is not his handwriting. From that
moment he waived his right against self-
incrimination. It is unfair that you say it is not
your signature and I have no way of telling you
to give me a specimen.
Q: How is the right against self-incrimination
be waived?
A: The privilege is waivable by the accused
taking the stand and testifying as a witness or by
freely answering the incriminating questions put
to him. (U.S. vs. Grant, 18 Phil. 122; U.S. vs. Rota,
9 Phil. 426) Or by not objecting.
Q: What is the reason for the right of an
accused against self-incrimination?
A: The rule was established on the ground of
public policy, because if the accused were required
to testify, he would be placed under the strongest
temptation to commit perjury, and of humanity,
because it would prevent the extortion of
confession by duress. (U.S. vs. Navarro, 3 Phil.
143) So, if you require him to testify, chances are
he will lie.
That is why according to former U.S. SC
Justice Black, “The accused should not be fried by
his own fat. [e di cooking oil!] No sane man will burn
his own shirt nor he will get a stone to hit his own
head. [eh kung gusto ko pala? Anong paki mo?] The privilege
against self-incrimination is one of the great
landmarks in man’s struggle to make himself
civilized. We do not make even the most
hardened criminal sign his own death warrant or
dig his own grave.”
Our own SC also followed that kind of
explanation through Justice Reynato Puno in the
1994 case of
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MAPA vs. SANDIGANBAYAN
231 SCRA 783
HELD: “The days of inquisitions
brought about the most despicable
abuses against human rights. Not the
least of these abuses is the expert use
of coerced confessions to send to the
guillotine even the guiltless. To guard
against the recurrence of this
totalitarian method, the right against
self-incrimination was ensconced in
the fundamental laws of all civilized
countries.”
(f) To confront and cross-
examine the witnesses against
him at the trial. Either party
may utilize as part of its
evidence the testimony of a
witness who is deceased, out of
or can not with due diligence
be found in the Philippines,
unavailable, or otherwise
unable to testify, given in
another case or proceeding,
judicial or administrative,
involving the same parties and
subject matter, the adverse
party having the opportunity to
cross-examine him.
Q: Is the right to confront and cross-examine
the witnesses against him waivable?
A: YES as ruled by the SC in the case of
GIMENEZ VS. NAZARENO, (160 SCRA 1), such
right is waived if the accused decides to run
away, jumps bail, or disappears – he is
automatically waiving the right to confront and
cross-examine the witnesses against him.
Q: Now what is the reason behind this right?
Why is there such a right?
A: It is intended to prevent the conviction of
an accused upon mere depositions and affidavits;
to preserve the right of the accused to test the
recollection of witnesses against him; and to
enable the court to observe the demeanor of the
witnesses who are testifying. (Dowdell vs. U.S.,
221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413)
You have taken up Evidence. Those are the
important factors for the court to gauge the
credibility of witnesses. Demeanor ba – their
manner of testifying. How can the court exercise
that option if he does not even see the witnesses?
So more or less, that is the reason behind it. To
borrow the language of an American justice
commenting on this issue, “It ensures that
convictions will not be based on the charges of
unseen and unknown, hence unchallengeable
individuals".
Another Justice, Justice Scalla, he is still an
incumbent of the Federal Supreme Court,
describing this right, he said, “It is always more
difficult to tell a lie about a person to his face than
behind his back, and even if the lie is told, it will
often be told less convincingly.” Meaning, it is
easier to tell a lie ba against somebody if he is not
in front of you. Pero pagkaharap na, parang
alanganin kang magsinungaling eh. And even if
you still tell a lie, it becomes not so convincing if
you will lie about a person in front of you. But if
he is not there, you become very persuasive in
your talk. These are the psychological reasons
behind that.
Q: What are the EXCEPTIONS to the right of
the accused to confront and examine witnesses
against him?
A: The following:
1. Second portion of paragraph [f]:
Either party may
utilize as part of its
evidence the testimony of
a witness who is
deceased, out of or can
not with due diligence be
found in the Philippines,
unavailable, or otherwise
unable to testify, given
in another case or
proceeding, judicial or
administrative, involving
the same parties and
subject matter, the
adverse party having the
opportunity to cross-
examine him.
Sometimes there is no choice.
Now, one good example where the
testimony of a witness is admissible
even if he does not appear in the trial
is when the witness is about to die.
Malapit ng mamatay, so you need to
take his testimony in advance. In civil
cases we call it deposition. In the
criminal procedure, deposition is
called conditional examination of a
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witness. That is governed by Rule 119
Sections 12, 13, and 15.
2. when there is a separate civil action
filed against the accused by the
offended party and he made a
reservation
Normally, the prosecution
witnesses in the criminal case are also
the witnesses for the plaintiff in the
civil case. Assuming nauna ang trial
ng civil case, these witnesses testified
during the trial of the civil case, they
were cross-examined by the lawyer of
the defendant who is also the accused
in the criminal case. Now, under the
law, when the criminal case is tried,
these witnesses have to testify again in
the criminal case, practically they will
have to repeat their testimony. The
trouble is, in the meantime, some of
these witnesses died.
Q: Can the testimony recorded in
the civil case be now admissible in the
criminal case when there is no more
confrontation there?
A: Yes. because that is the
exception, “when the testimony of the
witness who is now deceased, given in
another case or proceeding, judicial or
administrative, involving the same parties
and subject matter, the adverse party
having the opportunity to cross examine
him.”
As a matter of fact, this is also
considered as one of the exceptions to
the Hearsay Rule. It is the 11th
exception to the Hearsay Rule. Try to
connect this with Rule 130 on
Evidence. How many exceptions are
there to the Hearsay Rule? eleven (11)
iyan eh – starting from dying
declaration. That is the last exception –
testimony or deposition at a former
trial or proceeding. Yaan! That is
considered as an exception to the right
against confrontation.
3. The exceptions to the hearsay rule are
likewise exceptions to this right of the
accused. (U.S. vs. Gil, 13 Phil. 530)
If there are 11 exceptions to the
hearsay rule, all of them are also
exceptions to this. Like dying
declaration, how can you cross-
examine iyung taong patay na. So
there are 11 exceptions to the right to
confront and cross-examine the
witnesses against him which are all
found in the rules on evidence.
Q: One last point, does the right to confront
and cross-examine the witnesses against you,
include your right to know their names and
addresses in advance?
A: NO, the accused has no such right because
the case of the prosecution might be endangered
if the accused were to know the prosecution
witnesses in advance, for known witnesses might
be subjected to pressure or cowered not to testify.
(People vs. Palacio, L-13933, May 25, 1960) So,
you confront them during the trial, not now.
(g) To have compulsory process
issued to secure the attendance
of witnesses and production of
other evidence in his behalf.
I think that is self-explanatory, that is one of
your rights as an accused. As a matter of fact, the
question has been asked in the bar.
Q: Suppose my witness is somewhere there in
Cagayan de Oro, can I secure a subpoena to
compel him when under the rules on subpoena a
witness is not bound if he resides more than 100
kilometers?
A: That has already been answered in the
cases of PEOPLE VS. MONTEJO and MILLORCA
VS. QUITAIN. The SC said that the 100-km
limitation (formerly 50 kms.) does not apply
when you are talking of witnesses for the defense
in a criminal case because of the Constitutional
right to have compulsory process issued to secure
the attendance of witnesses in his behalf. That
right cannot be precluded by provisions in the
Rules of Court.
(h) To have speedy,
impartial and public trial.
There are actually three rights here:
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 105
1. the right to a speedy trial;
2. the right to an impartial trial; and
3. the right to a public trial.
Q: What do you mean by speedy trial?
Meaning, no postponements? not even one
postponement?
A: NO. That is not the interpretation. In the
case of
ALVIZO vs. SANDIGANBAYAN
220 SCRA 55
HELD: It must not be lost sight of
that the concept of speedy disposition
of cases is a RELATIVE term and must
necessarily be a flexible concept.
Delays per se are understandably
attendant to all prosecutions and are
constitutionally permissible with the
monition that the attendant delay
must NOT be OPPRESSIVE. [Hindi
palagi. Pa-minsan-minsan okay lang
man ba] Hence, the doctrinal rule is
that in the determination of whether
or not that right has been violated, the
factors that may be considered and
balanced are:
a.) the length of delay;
b.) the reasons for such delay;
c.) the assertion or failure to
assert such right by the
accused; and
d.) the prejudice caused by the
delay.
Q: What are the remedies of an accused whose
rights to a speedy trial is being violated because
the prosecution keeps on postponing the case?
How do you invoke this right to speedy trial?
A: There are three (3) possible remedies:
1. The accused should OPPOSE the
postponement and insist on trial. If the
court denies the postponement and
directs the prosecution to proceed and
cannot do so because he does not have
the evidence, the accused should move
for dismissal of the case on the ground
of failure to prosecute or insufficiency
of evidence. (Jaca vs. Blanco, 86 Phil.
452; Gandicela vs. Lutero, 88 Phil. 299;
People vs. Diaz, 94 Phil. 714) The
dismissal is equivalent to an acquittal
and there is no way for that case to be
brought back because it will amount to
double jeopardy. (People vs. Diaz, 94
Phil. 714)
2. If the court grants the postponement
everytime the fiscal asks for it, over
the protest of the accused, the latter’s
remedy is mandamus to compel
dismissal of the case; (Mercado vs.
Santos, 66 Phil. 215)
3. If the accused is restrained of his
liberty, his remedy is habeas corpus to
obtain his freedom. (Mercado vs.
Santos, 66 Phil. 215; Conde vs. Rivera,
45 Phil. 650)
Q: When is trial impartial?
A: There should be no bias otherwise, the trial
will not be fair – you are not given due process. If
the court or the judge has already pre-ordained
your guilt. “Every litigant is entitled to nothing
less than the cold neutrality of an impartial
judge.” (Villapando vs. Quitain, January 20, 1977)
Q: Right to a public trial – this is one of the
features of the accusatorial system. What is the
reason for public trial?
A: The requirement of public trial is for the
benefit of the accused, that the public may see
that he is fairly dealt with and not unjustly
condemned, and that the presence of spectators
may keep his triers keenly alive to a sense of
responsibility and to the importance of their
functions. (1 Cooley, Constitutional Limitations,
p. 647)
Meaning, everybody is on their toes. You
don't want to commit a mistake eh, mahihiya ka
eh, maraming nanonood. The judge, the
prosecutor, the witnesses, the defense counsel,
everybody is careful because they are watched by
the public. Look at what happened in the
impeachment trial, everybody wants to be careful
there because, imagine how many millions of
people are watching you there on T.V. So, pati
ang mga senators di makatulog, some are sleepy
no, mapapahiya ka, you are ashamed na makita
ka ng camera natutulog ka or you are using your
cellphone.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 106

I was reading an interview with Davide, he

was asked how he was able to cope with his
hours – full concentration iyan eh, because he has
to listen to every question because you do not
know when an objection will come. Senators can
just relax and pretend they are listening. Davide
has to make the ruling. So he has 5 or 6 hours of
full concentration. Katakot-takot daw na bitamina
at kape. [bato?]

Please connect this provision on Speedy Trial

with Rule 119 Section 9 which is a new provision
taken from the Speedy Trial Act. What is the
heading of Section 9 Rule 119? Remedy where
accused is not brought to trial within time limits. So
there is such a provision. When your case will not
move, the accused may question the delay why
his case has not been set for trial. That is a new
provision taken from the Speedy Trial Act.

[i] To appeal in all cases

allowed and in the manner
prescribed by law

There is something you will notice here – all

the rights of the accused in this Rule, from [a] to RULE 116
[h], are also found in the Constitution. These are ARRAIGNMENT AND PLEA
all Constitutional rights except the last – [i]. The
right to appeal is purely statutory which may be
granted or withheld at the pleasure of the State.
(People vs. Ang Gioc, 73 Phil. 366) The accused must be arraigned before the
court. That is the manifestation of the right of the
accused to be informed as to the nature and cause
of the accusation against him. The procedure is
there in [a].

SECTION 1. Arraignment and

plea; how made. (a) The accused
must be arraigned before the
court where the complaint or
information was filed or
assigned for trial. The
arraignment shall be made in
open court by the judge or
clerk by furnishing the accused
with a copy of the complaint or
information, reading the same
in the language or dialect
known to him, and asking him
whether he pleads guilty or not
guilty. The prosecution may
call at the trial witnesses
other than those named in the
complaint or information.
x x x x x
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 107
You can even ask for a copy of the complaint
and information there, although normally the
lawyers ask for it in advance, they do not merely
ask during the arraignment, before the
arraignment may kopya na sila. Take note of the
last sentence:
“The prosecution may call on
the trial witnesses other than
those named in the complaint or
information.”
Have you seen a criminal information?
Normally, at the last potion – “Witnesses for the
prosecution: Aquiatan, Tormon, Salesa, Balite and
others.” Mayroon man usually iyan “and others”.
The prosecution will sometimes not name all. So
mayroong reservation.
Q: Now, can you question that reservation of
the fiscal? If you are the accused, can you
question that procedure?
A: YES, puwede. Whether it is possible for the
prosecution not to name everybody was the issue
in the case of
PEOPLE vs. DE ASIS
December 7, 1993
HELD: “There is nothing that
could prevent the prosecution from
presenting witnesses in court not
listed in the information, as it is well
settled that the court has the
undisputed right to call on a witness
whose name does not appear in the list
of the fiscal, unless the omission of
said witness is intentional and tainted
with bad faith. The established rule is
that the prosecution may call unlisted
witnesses to testify.”
“Moreover, the purpose of the
listing of the names of the witnesses in
the complaint or information is merely
to avoid the presentation of surprise
witnesses and to enable the defense to
examine their record, morality and
character, but once placed on the
witness stand, it can no longer be
disputed that the defense has already
the opportunity to examine the
character and credibility of the
unlisted witness.”
“Finally, it is beyond question, that
it is the prosecution's privilege to
present such number of witnesses it
deems sufficient. Their non-inclusion
in the list of witnesses is of no
moment. In fact the omission of their
names in the list of prosecution
witnesses in the information is
commonly practiced for their own
protection at least until the termination
of the case.”
(b) The accused must be
present at the arraignment and
must personally enter his plea.
Both arraignment and plea shall
be made of record, but failure
to do so shall not affect the
validity of the proceedings.
Q: Now, what happens if a case is tried
without arraignment?
A: The GENERAL RULE, that is irregular –
the proceedings are tainted with irregularity
because arraignment is MANDATORY. (U.S. vs.
Palisoc, 4 Phil. 207). HOWEVER, there was an
instance where the SC considered the
proceedings as valid where the lawyer of the
accused also did not object the absence of the
arraignment. This the case of
PEOPLE vs. CABALE
May 8, 1990
FACTS: Nag pre-trial, walang
arraignment. But the parties presented
evidence. And when the case was
about to end they noticed, “Teka muna,
wala pang arraignment ito, ah? O sige, i-
arraign!” So, in other words, the
accused was arraigned when the trial
was about to end, or I think already
ended.
ISSUE: Is the trial valid?
HELD: What is the purpose of
arraignment? – to inform the accused
of the nature of the charge against
him. Now, if he does not know, how
come he was able to participate in the
trial? He was able to cross-examine the
witnesses against him, he was able to
present witnesses. So, the defect
became a formal defect.
“We find that while the
arraignment of the appellant was
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 108
conducted after the cases had been
submitted for decision, the error is
non-prejudicial and has been fully
cured when counsel for the appellant
entered into trial without objecting
that his client had not yet been
arraigned. Said counsel had also the
full opportunity of cross-examining
the witnesses for the prosecution.
There was, therefore, no violation of
the appellant's constitutional right to
be informed of the nature and cause of
the accusation against him.”
Now, accused are arraigned sa trial when the
case is filed in court and about to be tried. Now,
how about preliminary investigation conducted
by the MTC outside chartered cities, should the
accused be arraigned by the MTC judge?
Alam mo, I met that kind of situation years
ago, in one of the MTCs in the North. There was a
preliminary investigation and then I noticed an
arraignment. Actually the case was triable by the
RTC. The purpose there (MTC) was only to
determine probable cause. So I asked, “Mayroon
bang arraignment ang preliminary investigation?”
Sabi nung abogado doon, “Yes, mayroon.” DEAN:
“Wala man sa Rules of Court?” LAWYER: “Iyan
man ang ginagawa ng mga judges dito.” In other
words, MTC judges conduct arraignment in
preliminary investigation – matter of practice
daw – you do not find a provision in the Rules
saying yes or no. However, in 1993, I came across
a case where the SC commented on that – the case
of
ALISANGCO vs. TABILIRAN,
JR.
224 SCRA 1
HELD: There is NO such thing as
arraignment in a Preliminary
Investigation. “There is no law or rule
requiring an arraignment during the
preliminary investigation. Under
Section 1, Rule 116 of the Revised
Rules of Court, the arraignment must
be conducted by the court having
jurisdiction to try the case on its
merits.”
Q: Now, is there such a thing as arraignment
by proxy?
A: Wala. The accused must be personally
present. He must enter his plea.
(c) When the accused refuses
to plead or makes a conditional
plea, a plea of not guilty
shall be entered for him. (1a)
Q: Halimbawa ayaw mag-enter ng plea?
COURT: “What do you say—Guilty or Not guilty?”
ACCUSED: “No comment. I do not want to say
anything.”
A: Under paragraph [c], a plea of "Not guilty"
will be entered, or conditional plea, because a
plea must be absolute and unconditional.
I saw such situations before – Homicide,
where the accused was arraigned. Siyempre, “on
or about something with the use of a knife
stabbed so and so which caused his death.”:
COURT: “Kasabot ka?”
ACCUSED: “Yes.”
COURT: “What do you say? Guilty or
Not guilty?”
ACCUSED: “Guilty – inunahan man
niya ako ba.”
According to him, he is guilty. But actually, it
is the deceased who tried to kill him first. It is
self-defense! so, within the “not guilty” plea din
yan. Pag-guilty, guilty! Hindi puwede iyung
guilty pero may condition – so not guilty.
Conditional pleas are not allowed. If you do that,
we will enter a plea of not guilty for you.
Now, paragraph [d] of Section 1 is new:
(d) When the accused pleads
guilty but presents exculpatory
evidence, his plea shall be
deemed withdrawn and a plea of
not guilty shall be entered for
him. (n)
We will understand this more when we read
the case of PEOPLE vs. MENDOZA (231 SCRA
264). For example: You enter a plea of guilty. But
sabi mo, (sometimes this happens eh) “may we be
allowed to present evidence to show mitigating
circumstances?” And then the court will allow
you. You will present evidence to prove you are
entitled to this or that mitigating circumstance
para magbaba ang penalty.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 109
Q: Halimbawa pag-present ng evidence, na
prove na wala pala siyang kasalanan?
A: Then, under the rules, the plea of “guilty”
is automatically withdrawn, and the court will
order the substitution of “not guilty” because,
when you plead guilty, you are not supposed to
present evidence to prove your innocence, that is
being inconsistent. But if you do it, then the court
will change it immediately from guilty to not
guilty.
Paragraphs [e], [f], and [g] are new:
(e) When the accused is
under preventive detention, his
case shall be raffled and its
records transmitted to the
judge to whom the case was
raffled within three (3) days
from the filing of the
information or complaint. The
accused shall be arraigned
within ten (10) days from the
date of the raffle. The pre-
trial conference of his case
shall be held within ten (10)
days after arraignment. (n)
(f) The private offended
party shall be required to
appear at the arraignment for
purposes of plea bargaining,
determination of civil
liability, and other matters
requiring his presence. In case
of failure of the offended
party to appear despite due
notice, the court may allow the
accused to enter a plea of
guilty to a lesser offense
which is necessarily included
in the offense charged with the
conformity of the trial
prosecutor alone. (cir. 1-89)
(g) Unless a shorter period
is provided by special law or
Supreme Court circular, the
arraignment shall be held
within thirty (30) days from
the date the court acquires
jurisdiction over the person of
the accused. The time of the
pendency of a motion to quash
or for a bill or particulars or
other causes justifying
suspension of the arraignment
shall be excluded in computing
the period. (sec. 2, cir. 38-
98)
Let’s go to paragraph [f], this is one of the
important amendments here.
The private offended party is supposed to
appear at the arraignment for purposes of plea
bargaining. Plea bargaining is explained in Rule
118 and also here in Section 2. Now, what do
you mean by this – Plea Bargaining?
We will connect this right away to Section 2:
SEC. 2. Plea of guilty to a
lesser offense – At
arraignment, the accused, with
the consent of the offended
party and prosecutor, may be
allowed by the trial court to
plead guilty to a lesser
offense which is necessarily
included in the offense
charged. After arraignment but
before trial, the accused may
still be allowed to plead
guilty to said lesser offense
after withdrawing his plea of
not guilty. No amendment of the
complaint or information is
necessary. (sec. 4, circ. 38-
98)
Plea bargaining – mag-tawaran ba! You are
charged with murder, “homicide na lang [pliiiiiss].”
Kung homicide, plead ako “guilty” para at least
mababa ang sentensiya.
According to the law if the prosecutor agrees
and the offended party or the family of the
deceased agrees, puwede. Both of them must give
their consent.
So from Robbery, mahulog sa theft. Qualified
theft, maging simple theft. At least mababa di ba?
Or, from attempted homicide to physical injuries
na lang. Meaning, tawaran ba! That is allowed
under the law provided the condition is, with the
consent of the offended party and the prosecutor.
That is why during the arraignment,
according to the previous section paragraph [f],
the private offended party shall be required to
appear for purpose of plea-bargaining.
Q: Now suppose the offended party will not
appear during the arraignment?
A: According to paragraph [f], “in case of
failure of the private offended party to appear despite
due notice, the court may allow the accused to enter a
plea of guilty to a lesser offense which is necessarily
included in the offense charged with the conformity of
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 110
the trial prosecutor alone”. So, the consent of the
prosecutor would be enough.
Sabi ngayon ng private offended party, “But I
did not give my consent.” Aba, kasalanan mo yan!
You should have appeared during the
arraignment. Wala ka man, so there is a valid
plea-bargaining.
Now, I noticed that the 2000 Rules went back
to the original provision of the 1964 Rules. Under
the 1964 rules, you are allowed to plead guilty to
a lesser offense provided the lesser offense is
necessarily included in the offenses charged.
Murder to homicide; Theft is part of Robbery;
Qualified theft, simple theft; from serious to less
serious physical injuries; that is the condition –
the lesser offense will be included in the offense
charged.
But when the Rules were amended in 1985,
naiba – it became a very controversial provision
because the 1985 Rules said that, “You are
allowed to plead guilty to a lesser offense, even if
not included in the offense charged”. That’s why
it created a lot of problems. Halimbawa, I am
accusing you of serious physical injuries, you will
plead guilty to slander, there is no connection.
But the language of the 1985 Rules as written,
puwede.
Now, the SC went back to the original
provision “which is necessarily included in the
offense charged.”
After arraignment but before trial, the accused
may still allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty.
After you are arraigned you can still change your
mind for as along as the prosecution has not yet
commenced the presentation of evidence. And
there is no need of amending the complaint or
information, automatic na yan, less paperworks
for the prosecutor.
Now, let’s look at some interesting cases
decided by the Supreme Court. These cases were
decided before the amendment but we can see the
philosophy is still there.
AMATAN vs. JUDGE AUJERO
[Adm. Matter No. RTJ-93-956]
September 27, 1995
FACTS: The accused was charged
with homicide. So obviously, he killed
somebody. During the plea
bargaining, sabi ng accused, “We
would like to plead guilty to the lesser
offense of attempted homicide (2
degrees lower).” The prosecutor and
the widow agreed. So the court
rendered a decision on attempted.
Nagalit ang pamilya ng namatay – ang
brother, “anong klase ito?!” The
brother of the deceased brought a
letter to Chief Justice Narvasa at that
time, questioning the judge, “Pwede
ba yan?”
Of course, according to Judge
Aujero, “Teka muna, under the new
Rules (citing the 1985 Rules) you can
plead guilty to a lesser offense
whether or not included in the offense
charged, and even you, you have to
consider that attempted homicide is
related to homicide kaya lang two
degrees lower. The law is very clear.”
Ano sabi ng Supreme Court? The
Supreme Court gave a lecture.
HELD: The fact of death of the
victim cannot by simple logic and
plain common sense be reconciled
with the plea of guilty to the lower
offense of attempted homicide.
(imagine, namatay, ngayon buhay na?
how can you reconcile these two?) The
crime of homicide as defined in Article
249 of the Revised Penal Code
necessarily produces death; attempted
homicide does not.
However, the law is not entirely
bereft of solutions in such cases. In
instances where a literal application of
a provision of law would lead to
injustice or to a result so directly in
opposition with the dictates of logic
and everyday common sense as to be
unconscionable, the Civil Code,
particularly Article 10, admonishes
judges to take principles of right and
justice at heart. (Meaning, when a
judge decides, do not look only at the
letter of the law, you look at the logic
of your decision, the sense of right and
justice.) In case of doubt the intent is to
promote right and justice. Fiat justicia
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 111
ruat coelum. Stated differently, when a
provision of law is silent or
ambiguous, judges ought to invoke a
solution responsive to the vehement
urge of conscience.
These are fundamental tenets of
law. In the case at bench, the fact of
the victim's death, a clear negation of
frustrated or attempted homicide,
ought to have alerted the judge not
only to a possibly inconsistent result
but to an injustice. (In other words, the
charge is he died, I will convict him
for attempted homicide which
assumes he did not die, how can you
reconcile? Dapat pag-isipan mo yan,
look at the effects of your decision.)
The failure to recognize such
principles so cardinal to our body of
laws amounts to ignorance of the law
and reflects respondent judge's lack of
prudence, if not competence, in the
performance of his duties. While it is
true, as respondent judge contends,
that he merely applied the rule to the
letter, the palpably incongruous result
ought to have been a “red flag”
alerting him of the possibility of
injustice. The death of an identified
individual, the gravamen of the charge
against the defendant in the criminal
case, cannot and should not be
ignored in favor of a more expedient
plea of either attempted or frustrated
homicide. We have held before that if
the law is so elementary, not to know
it or to act as if one does not know it,
constitutes gross ignorance of the law.
(Where the law is so basic and you do
not know it or pretend not to know it,
that is gross ignorance of the law.)
What happens now to Judge
Aujero? Sinabon siya ng SC, “Finally,
every judge must be the embodiment
of competence, integrity and
independence. A judge should not
only be aware of the bare outlines of
the law but also its nuances and
ramifications, otherwise, he would not
be able to come up with decisions
which are intrinsically fair.” (Wala
namang malice. Di naman sinadya or
bad faith that he was paid to do it, so
the SC said,) “Nonetheless, the case at
bench stands unique because of the
potently absurd result of respondent's
application of the law.”
I think he was just censured or fined a
minimal amount. Di naman sinadya, kaya lang
pangit ba. Iyan ang sinasabi ko, how do you get
quality judges? That is the big problem – yung
malawak ang pag-iisip. Yaan!
PEOPLE vs. VILLARAMA, JR.
210 SCRA 226
FACTS: The accused is charged
with, let’s say, murder. Then the case
was tried and the prosecution rested.
Afterwards, the accused argued, “You
have not proved any qualifying
circumstance, so I will not present any
evidence anymore. I will just plead to
a lesser offense of Homicide.”
ISSUE: Can plea bargaining still
be entertained at that stage? Because
normally plea-bargaining is done
before the trial. Is that allowed?
HELD: YES. There is nothing
wrong with that, provided the
prosecution does not have sufficient
evidence to establish the guilt of the
accused for the crime charged. The
only basis for allowing a plea of guilty
to a lesser offense is nothing more and
nothing less than the evidence already
in the record. There is nothing wrong
with that procedure.
Take note also that under Section 1 [f], the
private offended party should be required to
appear in the arraignment precisely because of a
possible plea of guilty to a lesser offense which
requires his consent. That is why under the new
rule in Section 1 [f], if he does not appear, the
plea-bargaining can proceed and only the consent
of the prosecutor is necessary. The consent of the
offended party is no longer required according to
the present rules on criminal procedure, i.e. if he
does not appear.
Q: What happens if an accused enters a plea
of guilty?
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 112
A: The GENERAL RULE is that there would
be no trial anymore. No more presentation of
evidence because the accused has already
admitted the crime.
Q: What is the implication of a plea of guilty?
A: That the accused is admitting the essential
elements of the crime as charged in the
information, and according to the SC, including
the aggravating circumstances. Especially now,
under the new Rules where the prosecution is
mandated to allege also the aggravating
circumstances. So, as a general rule, judgment of
conviction can proceed immediately.
HOWEVER, according to the SC, even if there
is a plea guilty, certain facts alleged in the
information are not deemed admitted. What are
those facts that are deemed not admitted? These
are:
1.) Facts not alleged in the complaint or
information;
2.) Mere conclusions of facts;
3.) The jurisdiction of the court. So even if
I plead guilty, I can still question later
the jurisdiction of the court;
4.) The sufficiency of the complaint or
information is not considered even if
there has been a plea of guilty.
Q: So what happens if I plead guilty and it
turns out there is no crime?
A: There can be no conviction because the
sufficiency of the complaint or information is not
admitted by a plea of guilty.
On the other hand, when the accused pleads
not guilty, then the issues are joined and the case
is ready for trial. That is the counterpart of an
answer in civil procedure because there is no
Answer in criminal cases. Your plea is your
answer.
As already emphasized in some cases, when
you enter a plea of not guilty, you are considered
to have waived any previous defect, like lack of
preliminary investigation or validity of arrest.
Those things are deemed cured by entering a plea
of not guilty.
Now, going back to the GENERAL RULE,
when a person pleads guilty, no more trial, he can
be convicted, EXCEPT when he is charged with a
capital offense. Let’s read Section 3:
SEC. 3. Plea of guilty to
capital offense; reception of
evidence. – When the accused
pleads guilty to a capital
offense, the court shall
conduct a searching inquiry
into the voluntariness and full
comprehension of the
consequences of his plea and
shall require the prosecution
to prove his guilt and the
precise degree of culpability.
The accused may present
evidence in his behalf. (3a)
Q: So when a person pleads guilty to a capital
offense, can the court sentence him to death based
on his plea of guilty?
A: NO. The correct procedure is:
1.) The court shall conduct a searching
inquiry into the voluntariness and full
consequences of his plea. The court
must determine whether he really
understood it and its effects;
2.) Even if the accused pleads guilty, the
court will still require the prosecution
to prove the guilt of the accused. Thus,
the plea of guilty is not accepted
anymore in capital offense. That is
only corroborative because the
prosecution is still required to present
evidence;
3.) The accused may still present evidence
in his behalf.
“THE COURT SHALL CONDUCT A
SEARCHING INQUIRY INTO THE
VOLUNTARINESS AND FULL
COMPREHENSION OF THE CONSEQUENCE
OF HIS PLEA”
What do you mean by “the court shall conduct a
searching inquiry into the voluntariness and full
comprehension of the consequence of his plea”?
Section 3 is actually taken from decided cases,
even before the 1987 Constitution. Prior to the
1987 Constitution, there were so many people
sentenced to death based only on a plea of guilty.
The SC said, di pwede ito. Thus, all these
jurisprudence are culled and embodied in Section
3. Of course it became dormant for a while when
the death penalty could not be imposed. But na
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 113
naman eh. It’s now back to life [alleluia!] because of
the restoration of death penalty.
I remember before, there was even a time
before the 1987 Constitution, where:
JUDGE: “Guilty or Not guilty?
ACCUSED: “Guilty.”
JUDGE: “Do you understand what you
are doing by pleading guilty?”
ACCUSED: “Yes.”
JUDGE: “Do you understand by pleading
guilty, you are admitting all the
elements of the crime as alleged
in the complaint?”
ACCUSED: “Yes.”
JUDGE: “And still you are pleading
guilty?”
ACCUSED: “Yes.”
Sabi ng SC: Kulang ang mga tanong mo! Why
are you asking those questions? What does the
layman know about those elements of the crime?
Use simple language para maintindihan niya!
Now, if we follow the jurisprudence after the
1987 Constituition, lalung mahirap! Ito yung
mahirap – shall conduct a searching inquiry into the
voluntariness and full comprehension of the
consequence of his plea.” That is a very general term
and we do not really know what is really the
effect of that or its scope. If we will follow all the
guidelines of the SC, it would seem that all judges
will not pass the test of conducting a searching
inquiry. There are some tests like the case of
PEOPLE vs. ALBERT
251 SCRA 136
HELD: “The controversy over
improvident pleas of guilty dates back
to the early years of the American
administration, developed into a furor
over the succeeding years, subsided
during the martial law regime, and
was sidelined but occasionally
invoked when the 1987 Constitution
proscribed the imposition of capital
punishment. With the return of the
death penalty for heinous crimes, it is
high time for the trial courts to review
and reflect upon the jurisprudential
and statutory rules which evolved
over time in response to the injustice
created by improvident pleas
acknowledging guilt, at times
belatedly discovered under the
judicial rug, if at all.”
“The rationale behind the rule is
that courts must proceed with more
care where the possible punishment is
in its severest form — death — for the
reason that the execution of such a
sentence is irrevocable and experience
has shown that innocent persons have
at times pleaded guilty. The
primordial purpose then is to avoid
improvident pleas of guilt on the part
of an accused where grave crimes are
involved since he might be admitting
his guilt before the court and thus
forfeit his life and liberty without
having fully understood the meaning,
significance, and consequences of his
plea. Moreover, the requirement of
taking further evidence would aid the
Supreme Court on appellate review in
determining the propriety or
impropriety of the plea.”
PEOPLE vs. ALICANDO
251 SCRA 293
HELD: “To show the voluntariness
of the plea of guilt of the accused and
that the court’s questions demonstrate
the accused full comprehension of the
consequences of his plea, the records
must reveal information about the
personality profile of the accused
which can serve as a trustworthy
index of his capacity to give a free and
informed plea of guilt. The age, socio-
economic status and educational
background of the accused must be
plumbed by the trial court.”
So, you must get the personality profile of the
accused – the age, socio-economic status as well
as his educational background. Now, are the
judges doing that? I don’t think so.
PEOPLE vs. ESTOMACA
256 SCRA 421 (1996)
HELD: “Although there is no
definite and concrete rule as to how a
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 114
trial judge may go about the matter of
a proper "searching inquiry," it would
be well for the court, for instance, to
require the accused to fully narrate the
incident that spawned the charges
against him, or by making him reenact
the manner in which he perpetrated
the crime, or by causing him to furnish
and explain to the court missing
details of significance.”
“The trial court should also be
convinced that the accused has not
been coerced or placed under a state of
duress either by actual threats of
physical harm coming from
malevolent or avenging quarters and
this it can do, such as by ascertaining
from the accused himself the manner
in which he was subsequently brought
into the custody of the law; or whether
he had the assistance of competent
counsel during the custodial and
preliminary investigations; and,
ascertaining from him the conditions
under which he was detained and
interrogated during the aforestated
investigations. Likewise, a series of
questions directed at defense counsel
as to whether or not said counsel had
conferred with, and completely
explained to the accused the meaning
of a plea and its consequences, would
be a well-taken step along those lines.”
So, the judge must be very, very patient in
conducting a searching inquiry. Kung sundin mo
ito, it may take one or two days. Just take note
that we are talking about capital offense.
According to one commentator:
Before, the plea of guilty constituted
the main evidence of guilt and the
evidence taken during the further
inquiry was merely to aid the trial
court in exercising its discretion as to
whether the lighter or graver penalty
is to be imposed. That is the original
principle. But under the new
procedure, a plea of guilt is only a
secondary basis, the main proof being
that which the court requires the
prosecution to establish the guilt of the
accused. The plea of guilty by the
accused can only be used as
supporting evidence for a finding of
culpability. (So, baliktad ‘no?) In short,
once an accused, in a charge of capital
offense enters a plea of guilty, a
regular trial shall have to be
conducted. Just the same as if no such
plea of guilty was not entered. The
only effect of a plea of guilty, if ever, is
to serve as an additional mitigating
circumstance in case the penalty
imposable is less that an indispensable
penalty and if the guilty plea is
entered before the prosecution starts
to present evidence.
So if we follow that guideline: MURDER, or
other heinous crime; “Guilty!” Disregard it! Trial!
So, bale wala yung plead of guilty because you
still have to conduct a trial just the same.
SEC. 4. Plea of guilty to
non-capital offense; reception
of evidence, discretionary. –
When the accused pleads guilty
to a non-capital offense, the
court may receive evidence from
the parties to determine the
penalty to be imposed. (4)
Q: Can there be reception of evidence if the
accused enters a plea of guilty to a non-capital
offense?
A: YES. There is no need for the presentation
of evidence but if the court wants it, pwede rin,
the court can till require it. That is why reception
of evidence is discretionary to determine the
penalty to be imposed.
PEOPLE vs. MENDOZA
231 SCRA 264
FACTS: The accused was charged
with Robbery before the RTC of
Malaybalay, Bukidnon. During the
arraignment, the accused pleaded
guilty. Instead of pronouncing
judgment, the court conducted trial.
The prosecution failed to present
evidence that the accused is guilty of
the crime, so Judge Mendoza acquitted
the accused. The prosecution argued
that the judge should not have
acquitted him because he already
pleaded guilty.
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ISSUE: Was the acquittal of the
accused proper?
HELD: YES. Under the Rules,
when the accused pleads guilty to a
non-capital offense the court may
receive evidence from the parties to
determine the penalty to be imposed.
This rule is at most directory.
Was the judge correct? “It will
certainly be a clear abuse of discretion
on the part of the judge to persist in
holding the accused bound to his
admission of guilt and sentencing him
accordingly when the totality of the
evidence points to his acquittal. There
is no rule which provides that simply
because the accused pleaded guilty to
the charge that his conviction
automatically follows.”
However, there is something
wrong here because the records will
show that he pleaded guilty and yet
he was acquitted, so let us harmonize
the record. The correct procedure,
according to the SC, is for the judge to
order the withdrawal of the plea of
guilty and substitute it with a plea of
not guilty.
This principle has been embodied in Section
1[d] – “When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered for
him. (n)”
SEC. 5. Withdrawal of
improvident plea of guilty. –
At any time before the judgment
of conviction becomes final,
the court may permit an
improvident plea of guilty to
be withdrawn and be substituted
by a plea of not guilty. (5)
Q: Can a plea of guilty be withdrawn?
A: YES.
Q: Suppose there is already a judgment of
conviction, can he still withdraw?
A: YES, as long as the judgment of conviction
is not yet final.
SEC. 6. Duty of court to
inform accused of his right to
counsel. – Before arraignment,
the court shall inform the
accused of his right to counsel
and ask him if he desires to
have one. Unless the accused is
allowed to defend himself in
person or has employed counsel
of his choice, the court must
assign a counsel de officio to
defend him. (6a)
Section 6 should be read with the ruling of the
SC in the leading case of PEOPLE VS HOLGADO
(85 Phil. 752). In the said case, SC enumerated the
duties of the court when the accused appears
before it without a lawyer. The following are the
duties of the court:
1.) The court must inform the accused
that it is his right to have an attorney
before being arraigned;
2.) After giving him such information, the
court must ask him if he desires the
aid of an attorney;
3.) If he desires but is unable to employ
an attorney, the court must assign an
attorney de oficio to defend him; and
4.) If the accused desires to procure an
attorney of his own, the court must
grant him a reasonable time therefor.
SEC. 7. Appointment of counsel
de oficio. – The court, considering
the gravity of the offense and the
difficulty of the questions that
may arise, shall appoint as counsel
de officio such members of the bar
in good standing who, by reason of
their experience and ability, can
competently defend the accused. But
in localities where such members of
the bar are not available, the
court may appoint any person,
resident of the province and of
good repute for probity and
ability, to defend the accused.
(7a)
SEC. 8. Time for counsel de
oficio to prepare for arraignment.
– Whenever a counsel de oficio is
appointed by the court to defend
the accused at the arraignment, he
shall be given a reasonable time to
consult with the accused as to his
plea before proceeding with the
arraignment. (8)
SEC. 9. Bill of particulars. –
The accused may, before
arraignment, move for a bill of
particulars to enable him properly
to plead and prepare for trial. The
motion shall specify the alleged
defects of the complaint or
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information and the details
desired. (10a)
Section 9 is similar to Rule 12 on bill of
particulars. If the complaint is vague and
ambiguous, the defendant in a civil case can more
for a bill of particulars. Counterpart, if the
allegations in the information are also vague and
ambiguous, “I cannot understand it, so I cannot
intelligently enter my plea.” The accused, before
arraignment, can move for a bill of particulars to
enable him to prepare properly for the trial. Then
he must specify the defects. Civil case, pareho.
CINCO vs. SANDIGANBAYAN
202 SCRA 726
FACTS: A motion for bill of
particulars was filed by the lawyer of
the respondent in the fiscal’s office
when the case was under preliminary
investigation. (In preliminary
investigation, you are given the
affidavit of the complainant and his
witnesses. And then you are given 10
days to submit your counter-
affidavits.) Here, the affidavit is vague
according to the accused, so he is filing
a bill of particulars. He wanted to
compel the complainant to make his
affidavit clearer.
ISSUE: Is Section 9 applicable
when the case is still in the fiscal’s
office for preliminary investigation?
HELD: NO. It is only applicable
when the case is already in court for
trial or arraignment.
But suppose during the
preliminary investigation, “I cannot
understand what the complainant is
saying in his affidavit?” The SC said,
that is simple! If you cannot
understand what the complainant is
saying in his affidavit, chances are, the
fiscal also will not understand it. And
consequently, he will dismiss the case.
Eh di mas maganda! Wag ka nalang
mag-reklamo! [gago!]
SEC. 10. Production or
inspection of material evidence
in possession of prosecution. –
Upon motion of the accused
showing good cause and with
notice to the parties, the
court, in order to prevent
surprise, suppression, or
alteration, may order the
prosecution to produce and
permit the inspection and
copying or photographing of any
written statement given by the
complainant and other witnesses
in any investigation of the
offense conducted by the
prosecution or other
investigating officers, as well
as any designated documents,
papers, books, accounts,
letters, photographs, object,
or tangible things not
otherwise privileged, which
constitute or contain evidence
material to any matter involved
in the case and which are in
the possession or under the
control of the prosecution,
police, or other law
investigating agencies. (11a)
Section 10 deals also with a mode of discovery
– production and inspection of material evidence in the
possession of the prosecution. Not only that, the
accused can have access to all evidence in the
possession not only of the prosecution but
including those in the possession and control of
the police and other law investigating agencies.
Take note, if we follow the case of LIM VS FELIX,
JR, when the case is filed by the fiscal, meron
namang kaunting ebidensya na dun, so that, the
judge can review and find out if there is probable
cause, but it is not really all.
Q: So if the accused wants to see other
evidence and the fiscal refuses, can the accused
file a motion to compel the fiscal to reveal?
A: YES, because take note of Rule 112, Section
8 [b], the records of the preliminary investigation
do not form part of the records of the case when it
reaches the court. That is why your remedy is to
have them inspected. Let us good back to Rule
112, Section 8:
Rule 112, Section 8[b] Record
of preliminary investigation. – The
record of the preliminary
investigation, whether conducted by
a judge or a prosecutor, shall not
form part of the record of the
case. However, the court, on its
own initiative or on motion of any
party, may order the production of
the record or any of its part when
necessary in the resolution of the
case or any incident therein, or
when it is to be introduced as an
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 117

evidence in the case by the any significant erosion of the

requesting party.
constitutional right to due process of a
potential accused. that the finding of a
Another interesting case here on Section 10 is
probable cause by itself subjects the
the ruling in
suspects life, liberty and property to
real risk of loss or diminution. The fact
WEBB vs. DE LEON
that the law is silent does not mean
247 SCRA
that it does not apply. (Meaning, even
if it is under preliminary investigation,
FACTS: You know the story of
your liberty is already in danger.) The
Hubert Webb, the convict in that
right to discovery is rooted on the
Vizconde rape-homicide case.
constitutional protection of due
Somehow the defense discovered that
process which we rule to be
there were two (2) affidavits of Jessica
operational even during the
Alfaro (the State witness) which were
preliminary investigation of potential
executed before the NBI. Of course
accused.”
what was presented by the NBI to the
“In laying down this rule, the
DOJ was only one. So, the defense
Court is not without enlightened
filed a motion to compel the NBI to
precedents from other jurisdictions.
produce the other affidavit. This
The rationale is well put by Justice
happened when the case was under
Brennan in Brady – “society wins not
preliminary investigation.
only when the guilty are convicted but
when criminal trials are fair.” Indeed,
ISSUE: Can you apply Section 10
prosecutors should not treat litigation
when the case is still in the fiscal’s
like a game of poker where surprises
office? Because if you read Section 10,
can be sprung and where gain by guile
it applies when the case is already in
is not punished.”
court. The same with Section 9. Can
the mode of discovery under the Rules
of Court in criminal cases apply
So, the prosecutor should not hide anything
during the preliminary investigation?
because his job is not to convict but to see to it
that justice is done. I’ve been reading lately SC
HELD: “The issue is novel in this
recent decisions along that line na naman, where
jurisdiction as it urges an expansive
the SC said that your job Mr. Fiscal is not to
reading of the right of persons under
convict, but seek that justice is done. When you
preliminary investigation. It deserves
have no evidence, do not file. When there is no
serious consideration. So, the SC was
evidence in court, you move to dismiss the case –
intrigued: can you invoke the rights of
ikaw mismo! Do no insist in trying the case.
an accused during the trial when he is
still under preliminary investigation?”
And there was one decision where the SC
“To start with, our rules in
said, “What is the greatest achievement or moment of
criminal procedure does not expressly
a prosecutor?” Some may say when pagna-convict
provide for discovery proceedings
niya ang accused. That is an achievement but is it
during a preliminary investigation
not the greatest on your part. The greatest
stage of the criminal proceeding. But
achievement on you part is when you ask the
the SC noted, “This failure to provide
court to dismiss the case because there is no
discovery procedure during
evidence to convict the accused. That is the
preliminary investigation does not,
greatest achievement because that is your job – to
however, negate its use by a person
see to it that justice is done.
under investigation when
indispensable to protect his
constitutional fight to life, liberty and SEC. 11. Suspension of
property. Preliminary investigation is arraignment. – Upon motion by
not too early a stage to guard against the proper party, the
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arraignment shall be suspended
in the following cases:
(a) The accused appears to
be suffering from an unsound
mental condition which
effectively renders him unable
to fully understand the charge
against him and to plead
intelligently thereto. In such
case, the court shall order his
mental examination and, if
necessary, his confinement for
such purpose;
(b) There exists a
prejudicial question; and
(c) A petition for review of
the resolution of the
prosecutor is pending at either
the Department of Justice, or
the Office of the President;
provided, that the period of
suspension shall not exceed
sixty (60) days counted from
the filing of the petition with
the reviewing office. (12a)
What are the grounds for suspending an
arraignment? There are three and let’s go over
them one by one.
(a) The accused appears to
be suffering from an unsound
mental condition which
effectively renders him unable
to fully understand the charge
against him and to plead
intelligently thereto. In such
case, the court shall order his
mental examination and, if
necessary, his confinement for
such purpose;
When the accused is in an unstable condition,
you cannot properly, intelligently inform him of
the nature of the charge. So example: Buang,
unstable condition, Let us suspend the
arraignment. Let us wait for his recovery and as
long as he is not yet recovered, the arraignment is
suspended indefinitely. For as long as he has not
recovered, the arraignment remains suspended.
BAR QUESTION : What are the legal effects of
insanity or unsound mental condition of the
accused?
A: It DEPENDS as to when was he insane –
1. Suppose he was insane at the time he
committed the crime but now he is
OK, then that is not a ground for the
suspension of the arraignment, not
even a ground for a motion to quash
unless the information admits that he
is insane when he committed the
crime in which case you can move to
quash under Rule 117, Section 3 [h] –
that the information contains
averments which in truth would
constitute a legal excuse or
justification.
But there is no prosecutor crazy
enough to file an information
admitting that the accused was insane
when he committed the crime. That is
tantamount to admitting that he is
exempt from liability. It is the defense
who will prove insanity. So what is the
effect? You enter your plea of not
guilty and let’s go to trial and I will
prove insanity as my defense.
2. Suppose he became insane when the
case is set for arraignment but he was
normal when he committed the crime?
Then we apply Rule 116, Section 11 –
you move for the suspension of the
arraignment.
3. Suppose he became insane after the
arraignment? You move to postpone
the trial because he cannot adequately
defend himself if he is crazy. The trial
should be suspended.
4. Suppose he became insane when he is
already convicted and serving
sentence? Let us go back to the Penal
Code, Article 86 – it is a ground for a
motion for the suspension of the
execution of the sentence.
Second ground:
(b) There exists a
prejudicial question;
When there is a prejudicial question. Just
connect this with Rule 111, Section 6 – what do
you mean by a prejudicial question, the elements,
when do you raise them. When the case is in
court, suspend the trial, suspend the arraignment,
lets wait for the civil case to be decided.
The third ground is new:
(c) A petition for review of
the resolution of the
prosecutor is pending at either
the Department of Justice, or
the Office of the President;
provided, that the period of
suspension shall not exceed
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 119

sixty (60) days counted from

the filing of the petition with
the reviewing office.

Based on existing jurisprudence, when the

prosecutor says “File the case,” technically, the
accused can appeal that although generally that is
not appealable because of the MOGUL doctrine.
As a general rule, the DOJ should no longer
entertain an appeal from the resolution of the
fiscal stating that the case should be filed because
the court may not follow the DOJ. That is what
happened in the case of Mogul. Sabi ng DOJ, ”no
probable cause, Fiscal, you dismiss” Sabi ng court,
“No, Fiscal, you continue!”
The problem is when the case reaches the
court, in most cases, the lawyer of the accused
will move for the suspension of the arraignment
because he will say, “I have a pending petition for
review of the resolution in the DOJ.” According to
the circular of the DOJ, the petition for review can
only be entertained if the accuse has not been
arraigned, kung na-arraign na, wala na. But
normally courts will honor that. That court will
say, “alright, let us suspend and wait for the
resolution of the DOJ.” That is why it is a ground
for suspension.

“Man has not invented a reliable compass by
which to steer a marriage in its journey over
troubled waters. Laws are seemingly inadequate.
Over time, much reliance has been placed in the
works of the unseen hand of Him who created all
things.
“Who is to blame when a marriage fails?
“Love is useless unless it is shared with
another. Indeed, no man is an island, the cruelest
act of a partner in marriage is to say “I could not
have cared less.” This is so because an ungiven
self is an unfulfilled self. The egoist has nothing
but himself. In the natural order, it is sexual
intimacy which brings spouses wholeness and
oneness. Sexual intimacy is a gift and a
participation in the mystery of creation. It is a
function which enlivens the hope of procreation
and ensures the continuation of family
relations.”
– Justice Torres, Jr. on the issue of psychological
incapacity
CHI MING TSOI vs. COURT OF APPEALS
G.R. No. 119190, January 16, 1997

The trouble is this: how long does it take for

the DOJ to resolve it? If they can resolve it within
2 or 3 years, you are lucky, the case cannot go on
because the DOJ is not done yet. This has been
the cause of delays. That’s why the new rules
says, “provided, the suspension will not exceed
60 days counted from the filing of the petition
with the reviewing office.” This is tantamount to
the SC indirectly telling the DOJ or the reviewing
office (Provincial State Prosecutor) na “bilisan
ninyo”. If the petition is not acted within that
period, let’s proceed with the arraignment,
“bahala na kayo dyan!”

At least there is now a deadline. And that is

good. I really like this amendment. It is the
accused who filed the petition for review who is
under pressure – to pressure the DOJ to resolve
because the suspension is only good for 60 days.
Unlike before where the pressure is in the
offended party because the case cannot run while
the petition for review is pending. Now, I do not Rule 117
know whether the DOJ right now, can do in 60
days what they have been failed to do for years.
MOTION TO QUASH
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SECTION 1. Time to move to
quash. – At any time before
entering his plea, the accused may
move to quash the complaint or
information. (1)
SEC. 2. Form and contents. –
The motion to quash shall be in
writing, signed by the accused or
his counsel and shall distinctly
specify its factual and legal
grounds. The court shall consider
no ground other than those stated
in the motion, except lack of
jurisdiction over the offense
charged. (2a)
In civil cases, within the time for but before
filing the answer to the complaint, the defendant
may move to dismiss the case on certain specified
grounds under Rule 16. In criminal procedure
naman, at anytime before entering the plea, the
accused may move to quash the complaint or
information.
Take note that under Section 2, the motion to
quash partakes the nature of an omnibus motion
because the court will consider no ground other
than those stated in the motion. The court will not
quash a complaint or information on a ground
that you did not cite. This is because you can
waive this right.
The only ground the court will consider moto
propio, is lack of jurisdiction over the offense
charged, even if not raised in the motion to
quash. The theory is that: “No amount of silence
on the party of the accused will grant the court
jurisdiction over the subject matter of the case.”
Jurisdiction over the subject matter is conferred
by law.
Q: What are the grounds for a motion to
quash?
A: Section 3:
SEC. 3. Grounds. The
accused may move to quash the
complaint or information on any
of the following grounds:
(a) That the facts charged
do not constitute an offense;
(b) That the court trying
the case has no jurisdiction
over the offense charged;
(c) That the court trying
the case has no jurisdiction
over the person of the accused;
(d) That the officer who
filed the information had no
authority to do so;
(e) That it does not conform
substantially to the prescribed
form;
(f) That more than one
offense is charged except when
a single punishment for various
offenses is prescribed by law;
(g) That the criminal action
or liability has been
extinguished;
(h) That it contains
averments which, if true, would
constitute a legal excuse or
justification; and
(i) That the accused has
been previously convicted or
acquitted of the offense
charged, or the case against
him was dismissed or otherwise
terminated without his express
consent. (3a)
1ST GROUND: (A) THAT THE FACTS
CHARGED DO NOT CONSTITUTE AN
OFFENSE;
The counter part of this in civil cases is, that
the pleading asserting the claim states no cause of
action.
Q: How do we know the complaint or
information do not constitute an offense?
A: You look at the allegations in the
complaint. If the facts alleged do not constitute
any crime, then the information should be
quashed. This was emphasized in the case of
LOPEZ vs. SANDIGANBAYAN
October 13, 1995
HELD: “As a general proposition,
a motion to quash on the ground that
the allegations of the information do
not constitute the offense charged, or
any offense for that matter should be
resolved on the basis alone of said
allegations whose truth and veracity
are hypothetically admitted. However,
additional facts not alleged in the
information, admitted or not denied
by the prosecution may be invoked in
support of the motion to quash.”
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2ND GROUND: (B) THAT THE COURT
TRYING THE CASE HAS NO JURISDICTION
OVER THE OFFENSE CHARGED;
3RD GROUND: (C) THAT THE COURT
TRYING THE CASE HAS NO JURISDICTION
OVER THE PERSON OF THE ACCUSED;
Instances when the court has no jurisdiction:
1.) the court has no jurisdiction to try the
case because of the penalty;
2.) the court has no jurisdiction to try the
offense because it is committed in
another place – territorial jurisdiction;
or
3.) the court has no jurisdiction over the
person of the accused because the
latter has never been arrested and
never surrendered himself.
4TH GROUND: (D) THAT THE OFFICER
WHO FILED THE INFORMATION HAD NO
AUTHORITY TO DO SO;
Q: Who has the authority to file the case?
A: Prosecutor.
So if it was the clerk who signed for the city
prosecutor (e.g. By: Kent Clark – clerk typist), the
accused can move to quash because the clerk is
not authorized. Remember, if the fiscal filed an
information without the previous complaint
signed by the victim or by the parents, the same
can be quashed.
CUDIA vs. COURT OF APPEALS
January 16, 1998
HELD: “An infirmity in the
information, such as lack of authority
of the officer signing it, cannot be
cured by silence, acquiescence, or even
by express consent.”
5TH GROUND: (E) THAT IT DOES NOT
CONFORM SUBSTANTIALLY
TO THE PRESCRIBED FORM;
You know very well the form of complaint or
information. You go back to Rule 110 – you state
the time, the place, etc. then in Rule 112 a
certification is required. The fiscal will certify that
I have conducted the preliminary investigation, etc.
that is the form. The fiscal will certify that the
other party has given the chance to be heard. If
the same was not afforded the accused, he can
move to dismiss the case.
Q: Now, what is your ground to quash?
A: You say, “It does not comply with the
prescribed form” because the correct form
requires certification. It is a ground for a motion
to quash.
6TH GROUND: (F) THAT MORE THAN
ONE OFFENSE IS CHARGED EXCEPT WHEN A
SINGLE PUNISHMENT FOR VARIOUS
OFFENSES IS PRESCRIBED BY LAW;
This refers to a duplicitous complaint or
information – when it charges more than one
offense under Rule 110, Section 13. It is not
allowed. However under Rule 120, Section 3 it is
waivable. If the accused fails to object to it before
trial, the court may convict him of as many
offenses as are charged and proved, and impose
on him the penalty for each offense,
7TH GROUND: (G) THAT THE CRIMINAL
ACTION OR LIABILITY HAS BEEN
EXTINGUISHED
Q: How is criminal liability extinguished?
A: Under Article 89 of the RPC:
1.) by death of the convict;
2.) by service of sentence;
3.) by amnesty;
4.) by absolute pardon;
5.) by prescription of the crime;
6.) by prescription of the penalty;
EXAMPLE: The information should be filed
only within 5 years but the charge was filed on
the 7th year. So you can move to quash because
the liability has already been extinguished by
prescription.
8TH GROUND: (H) THAT IT CONTAINS
AVERMENTS WHICH, IF TRUE, WOULD
CONSTITUTE A LEGAL EXCUSE OR
JUSTIFICATION
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The complaint or information contains
averments which if true would show that you are
NOT liable.
SITUATION: The information says that there
is a case of homicide because in such certain date
Rose stabbed Rucel because Rucel tried to stab
Rose first. The information is admitting that Rose
acted in self-defense. Prosecutor himself admits
that Rose acted in self-defense. Therefore, the
information admits the existence of a justifying
circumstance.
SITUATION: You are charged for committing
a crime and when you committed it, you are out
of your mind. Thus, it admits insanity. So you can
move to quash on the ground that the
information admits that you are insane.
That is what is meant by a complaint or
information which contains averments which if
true, constitute a legal excuse or justification. Of
course this is very rare ‘noh? Why will the fiscal
allege in the information something that is
favorable to you? This is very queer.
One of the most interesting case here is the
1994 case of
DANGUILAN-VITUG vs.
COURT OF APPEALS
232 SCRA 460 [1994]
FACTS: Danguilan was a EXPRESS CONSENT.
columnist in a newspaper and was
charged for libel for writing in a
column something which is
discriminating. According to her the
information should be quashed
because it was a privileged
communication.
HELD: NO, it cannot be quashed
because of “paragraph [g] of Section 3
Rule 117 which states that the accused
may move to quash the complaint or
information where it contains
averments which, if true, would
constitute a legal excuse or
justification. Hence, for the alleged
privilege to be a ground for quashing
the information, the same should have
been averred in the information itself.”
Meaning, the information should
admit that it is privileged in nature. If
it is not stated there, then it is not
admitted.
“The privilege should be absolute,
not only qualified. Where, however,
these circumstances are not alleged in
the information, quashal is not proper
as they should be raised and proved as
defenses. With more reason is it true
in the case of merely qualifiedly
privileged communications because
such cases remain actionable since the
defamatory communication is simply
presumed to be not malicious, thereby
relieving the defendant of the burden
of proving good intention and
justifiable motive. The burden is on
the prosecution to prove malice. Thus,
even if the qualifiedly privileged
nature of the communication is
alleged in the information, it cannot be
quashed especially where prosecution
opposes the same so as not to deprive
the latter of its day in court, but
prosecution can only prove its case
after trial on the merits.”
9TH GROUND: (I) THAT THE ACCUSED
HAS BEEN PREVIOUSLY CONVICTED OR
ACQUITTED OF THE OFFENSE CHARGED, OR
THE CASE AGAINST HIM WAS DISMISSED OR
OTHERWISE TERMINATED WITHOUT HIS
This is known as the defense against double
jeopardy. The double jeopardy as a ground for a
motion to quash is the most complicated ground.
That is why it is thoroughly discussed in Section
7. We will go now to Section 4.
SEC. 4. Amendment of
complaint or information. – If
the motion to quash is based on
an alleged defect of the
complaint or information which
can be cured by amendment, the
court shall order that an
amendment be made. (4a)
If it is based on the ground
that the facts charged do not
constitute an offense, the
prosecution shall be given by
the court an opportunity to
correct the defect by
amendment. The motion shall be
granted if the prosecution
fails to make the amendment, or
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the complaint or information
still suffers from the same
defect despite the amendment.
(n)
Actually, some of the grounds of a motion to
quash are harmless, they are not fatal. They can
be cured by amendments.
The second paragraph of Section 4 is new. It
was merely inserted to complement the first
paragraph.
EXAMPLE: Motion to quash that the
information does not comply with the prescribed
form because taking of oath was forgotten. I do
not think the court will order for the dismissal of
the criminal case because of that. It will instead
issue an order directing the fiscal to amend, “Take
the oath, so it will be cured.” This is a ground for
quashal which is not a serious defect but only a
formal defect. Thus, instead of quashing the
information the court may extend the right to the
fiscal to amend the complaint or information
since the name is curable.
However under the second paragraph,
despite the lapse of so many days, the prosecutor
did not file the amended information or even if
he filed the corrected information, pero ganun pa
rin, the defect is still there, I will rather move to
quash the information.
We will take up Section 5 together with
Section 6.
SEC. 5. Effect of sustaining
the motion to quash. – If the
motion to quash is sustained,
the court may order that
another complaint or
information be filed except as
provided in section 6 of this
rule. If the order is made, the
accused, if in custody, shall
not be discharged unless
admitted to bail. If no order
is made or if having been made,
no new information is filed
within the time specified in
the order or within such
further time as the court may
allow for good cause, the
accused, if in custody, shall
be discharged unless he is also
in custody of another charge.
(5a)
SEC. 6. Order sustaining the
motion to quash not a bar to
another prosecution; exception.
– An order sustaining the
motion to quash is not a bar to
another prosecution for the
same offense unless the motion
was based on the grounds
specified in section 3 (g) and
(i) of this Rule. (6a)
SITUATION: An information is filed against
you and it is not in the prescribed form.
Q: What would the court do?
A: Based on Section 4, the court will, instead
of quashing , allow the fiscal to amend. And your
motion is already moot and academic. But
suppose the court will quash the information
because it was filed by somebody who was not
authorized to file and the motion to quash is
sustained, it does not mean to say that the case
cannot be re-filed since the defects are incurable.
SITUATION: The case of homicide is filed in
the MTC when actually it should be filed in the
RTC. Since the MTC has no jurisdiction, you file a
motion to quash. And the judge shall quash it.
Q: What would the fiscal do?
A: Tomorrow he will re-file it. So when the
case is dismissed on such a ground – lack of
jurisdiction or it does not conform with the
prescribed form – the rule is it is not a bar to re-
file the case. It can be filed again.
EXCEPT when the ground for dismissal is
falling under paragraphs [g] and [i] of Section 3,
Rule 117.
Q: What is paragraph [g]?
A: “That the criminal action or liability has been
extinguished.” If the case is quashed on this
ground, that is the end since the same is
extinguished already. You cannot re-file it
anymore.
Q: What is paragraph [i]?
A: “that the accused has been previously convicted
or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his
express consent.” So you cannot re-file the
information because of double jeopardy.
As a general rule, all other grounds for
motion to quash even if granted will not really be
a total victory for the accused. That is why some
lawyers will never bother to file a motion to
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quash anymore. This is because once you file it, Q: When do you apply it?
the same case would be re-filed. As a matter of A: That is for the lawyer to judge. Will you
fact, there are cases when it is not advisable to file use it or not? In other words, there is a need for
a motion to quash unless there is a serious reason. you to have a clear picture of the situation. You
It is a matter of judgment. If you think it will not must not only know the Rules of Court but also
benefit you client, then do not file it. Like in when the law must be used. An example is a
preliminary investigation some lawyers will not motion to quash. How to apply it.
submit to criminal investigation most especially if
they believe the fiscal will file because of probable However, when a case is quashed on the
cause. Better if I will not file so that you will not ground that the criminal liability has been
know who are my witnesses or statements. extinguished or the accused is placed in double
jeopardy, once it is quashed, that is the end. It
As a matter of fact that happened already. cannot be re-filed.
There was a case wherein the information stated
that the accused issued five (5) checks, with
SEC. 7. Former conviction or
different dates, all are post-dated. All five checks acquittal; double jeopardy. –
bounced. So, a complaint against the accused was When an accused has been
filed before the fiscal. What the fiscal did was to convicted or acquitted, or the
case against him dismissed or
file one case for estafa reciting there that the otherwise terminated without
accused issued five checks of five different dates his express consent by a court
with different maturities, and all bounced. of competent jurisdiction, upon
a valid complaint or
information or other formal
So it turned out that the information is charge sufficient in form and
duplicitous because every check should have substance to sustain a
conviction and after the
been one case. You know what the lawyer for the accused had pleaded to the
accused did? He file a motion to quash stating charge, the conviction or
that the information charges more than one case acquittal of the accused or the
dismissal of the case shall be
of estafa. The lawyer was correct, so the a bar to another prosecution
dismissed the information. The following day, the for the offense charged, or for
fiscal filed 5 informations. One case for every any attempt to commit the same
or frustration thereof, or for
check. In effect there are five warrants of arrest any offense which necessarily
already. Then the accused asked his lawyer, includes or is necessarily
included in the offense charged
“Atty, what happened? Before I have only one
in the former complaint or
case. Now, there are already five!” information.
However, the conviction of
the accused shall not be a bar
Q: If you are the lawyer, how will you explain to another prosecution for an
that? offense which necessarily
A: Actually, legally you are correct. An includes the offense charged in
the former complaint or
information should charge only once crime. But information under any of the
since t charges five crimes so you move to quash following instances:
which is a valid ground. But look at the effect – (a) the graver offense
developed due to supervening
the accused now has five warrants. Can you say, facts arising from the same act
it is because of a duplicitous information? He or omission constituting the
cannot understand that. former charge;
(b) the facts constituting
the graver charge became known
That is why there is difference in just or were discovered only after a
knowing the law from knowing how to apply the plea was entered in the former
complaint or information; or
law. You should know the law and you should (c) the plea of guilty to
know how to use it. If it is not in you interest, do the lesser offense was made
not use it. Why move to quash when by doing so without the consent of the
prosecutor and of the offended
would worsen your situation. Of course, there are party except as provided in
also instances where there is a need to object by section 1(f) of Rule 116.
virtue of a duplicitous information. In any of the foregoing
cases, where the accused
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satisfies 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. (7a)
One important ground for a motion to quash
is Section 7 on double jeopardy which is also
found in the Constitution – Section 21, Article 3
on the Bill of Rights.
Q: Define jeopardy?
A: Jeopardy is the peril in which a person is
put when he is regularly charged with a crime
before a tribunal properly organized and
competent to try him. (Commonwealth vs.
Fitzpatrick, 1 LRA 451)
Meaning, if a case is filed against you before
a court which is competent to try you, then from
that moment, there is a risk, danger or peril.
Everytime there is peril, there is jeopardy. And
after what happened to you, whether you are
acquitted or convicted or the case was dismissed
without your consent, later on ibalik ka naman in
the second time around, ah hindi puwede yan. It
is inhuman to put you in jeopardy twice.
Let’s go to the Constitution. Under Article 3,
Section 21, there are two (2) sentences:
1.) “No person shall be twice put in
jeopardy of punishment for the same
offense.” and
2.) “If an act is punished by a law or
ordinance, conviction or acquittal in
either shall constitute a bar to another
prosecution for the same act.”
The first sentence is what you call protection
against double jeopardy of punishment for the
same offense. The second sentence is what you call
the protection against double jeopardy for the
punishment of the same act. So there is double
jeopardy for the same offense and double
jeopardy for the same act. The second sentence is
not the same offense, but it is the same act.
The second sentence says that the act is
punished by a law passed by Congress and it iis
also punished for example, by an ordinance
passed by the City or Municipal Council. So it is a
crime under the municipal or city ordinance and
also under the national law. It is not the same
crime because it is punished by two laws, so
there must be two crimes.
However the sentence says, that if you are
acquitted or prosecuted under the national law,
you cannot anymore be acquitted or convicted
under the city or municipal ordinance all over
again or vice-versa. You are protected for the
same act not for the same offense.
Now, the best illustrative case comparing the
first and the second sentences is the 1987 case of
PEOPLE vs. RELOBA, infra where Justice
Feliciano traced the history of double jeopardy
staring from the 1935 Constitution.
PEOPLE vs. RELOVA
148 SCRA 292
FACTS: The accused installed an
electrical connection without permit.
He was charged with theft under the
RPC – theft of electricity. And it so
happened that in that place, there was
an ordinance passed by the municipal
council making it a crime for you to
make an electrical connection without
permit.
So he was charged both for
violation of the RPC and the
municipal ordinance. The accused
filed a motion to quash the second
information, stating that he has
already been charged for theft of
electricity. The prosecution contended
that the first charge was theft under
the RPC and the prosecution is
charging him not for theft but for
illegal electrical connection under the
municipal ordinance.
ISSUE #1: What is the reason why
there are 2 rules in the provision on
double jeopardy?
HELD: “If the second sentence of
the double jeopardy provision had not
been written into the Constitution,
conviction or acquittal under a
municipal ordinance would never
constitute a bar to another prosecution
for the same act under a national
statute. An offense penalized by
municipal ordinance is, by definition,
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different from an offense under a
statute. The two offenses would never
constitute the same offense having
been promulgated by different rule-
making authorities — though one be
subordinate to the other — and the
plea of double jeopardy would never
be. The discussions during the 1934-
1935 Constitutional Convention show
that the second sentence was inserted
precisely for the purpose of extending
the constitutional protection against
double jeopardy to a situation which
would not otherwise be covered by
the first sentence.”
ISSUE #2: Was there double
jeopardy?
HELD: The purpose of installing
illegal connection is to steal electricity,
which is also theft. In other words, it is
the same act of installing which is
punishable. Since you are acquitted or
convicted under the national law, you
cannot be prosecuted under a
municipal law. You are protected by
the second sentence of double
jeopardy in the Constitution: “If an act
is punished by a law or ordinance,
conviction or acquittal in either shall
constitute a bar to another
prosecution for the same act.”
However, Section 7 is not concerned with the
second sentence but with the first sentence – the
protection against double jeopardy from being
punished for the same offense. This is similar to
res adjudicata. The SC explained the rational
behind the double jeopardy rule in the case of
MALLARI vs. PEOPLE
168 SCRA 422
HELD: “The rule against double
jeopardy protects the accused not
against the peril of second punishment
but against being tried for the same
offense. Without the safeguard this
rule establishes in favor of the
accused, his fortune, safety and peace
of mind would be entirely at the
mercy of the complaining witness who
might repeat his accusation as often as
it is dismissed by the court and
whenever he might see fit, subject to
no other limitation or restriction than
his will and pleasure. The accused
would never be free from the cruel
and constant menace of a never
ending charge, which the malice of a
complaining witness might hold
indefinitely suspended over his head.”
Let’s go to the double jeopardy rule.
Q: Bar Question: What are the requisites of
double jeopardy?
A: The SC tried to compressed that 2
paragraphs (of Section 7) in only 3 sentences in
the case of
PEOPLE vs. BOCAR (138 SCRA
166) reiterated in
PANGAN vs. PEOPLE (155 SCRA
45)
HELD: To raise the defense of
double jeopardy, three (3) requisites
must be present:
1.) The first jeopardy must
have been attached prior to
the second;
2.) The first jeopardy must be
validly terminated; and
3.) The second jeopardy must
be for the same offense as
that of the first.
Well, this is my advice, for purposes of
answering the question on double jeopardy and
in order to understand completely the double
jeopardy rule, let us analyze Section 7 by dividing
it into three (3) parts:
A.) WHAT ARE THE REQUISITES OF
DOUBLE JEOPARDY IN ORDER TO
ATTACH?
B.) IN WHAT INSTANCES MAY THE
ACCUSED INVOKE THE PROTECTION
OF DOUBLE JEOPARDY? and
C.) ASSUMING THAT ALL THE
REQUISITES OF DOUBLE JEOPARDY,
THE ACCUSED IS PROTECTED
AGAINST FROM WHAT OFFENSE?
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In effect, Section 7 talks of those three. Let’s
start with the first one:
A.) WHAT ARE THE REQUISITES
OF DOUBLE JEOPARDY IN ORDER
TO ATTACH?
Q: When does the first jeopardy attach?
A: It attaches when the following requisites are
present:
1. The former complaint or information
is valid;
2. It was filed in a court of competent
jurisdiction;
3. The accused had been arraigned under
said complaint or information; and
4. The accused had pleaded to the same.
THE FORMER COMPLAINT OR
INFORMATION IS VALID
Q: When is a complaint or information valid
within the meaning of the double jeopardy rule?
A: The requisites are:
1. if it charges an offense; (People vs.
Austria, 94 Phil. 897)
2. if it is filed by a person or officer
legally authorized to do so. (People
vs. Kho, 97 Phil. 825)
CASE: An information was filed against Mr.
Acelar for theft. Mr. Acelar moved to quash on
the ground that the information does not charge
any offense. The court agreed and the
information was quashed. So, the fiscal corrected
the information and re-filed it. Mr. Acelar moved
to quash on the ground of double jeopardy. Is
there double jeopardy?
A: There is no double jeopardy for the
following reasons:
1. The dismissal of the first information
was on motion of the accused.
Therefore, it was a dismissal with his
express consent. Diyan palang, tumba
ka na!
2. The accused moved to quash the first
information on the ground that it did
not charge an offense. Therefore, it
was not a valid information. So, the
accused was never in jeopardy.
(People vs. Reyes, 98 Phil. 646)
IT IS FILED IN A COURT OF COMPETENT
JURISDICTION
CASE: A case of homicide is filed in the MTC;
that will be dismissed in MTC for lack of
jurisdiction. But that can be cured if the fiscal
will file the information of homicide in the RTC.
Is there double jeopardy?
A: None. The accused was never in jeopardy
because the first information was filed before the
wrong court. There was no danger of being
convicted based on the case filed. (People vs.
Salico, 84 Phil. 722)
B.) ASSUMING THAT THE
REQUISITES OF DOUBLE
JEOPARDY ARE PRESENT, IN
WHAT INSTANCES MAY THE
ACCUSED INVOKE THE
PROTECTION OF DOUBLE
JEOPARDY?
Q: In what instances may the accused invoke
the protection of double jeopardy?
A: In the following:
1.) when the accused had been previously
convicted;
2.) when the accused had been previously
acquitted; and
3.) when the case against the accused had
been dismissed or otherwise
terminated without his express
consent.
Let’s go to a decided case: The fiscal filed a
case against you for homicide alleging that on a
certain day you killed Juan dela Cruz. While the
case is pending, the fiscal filed a second
information for the same homicide committed on
the same day by the same accused. So you are
now facing two charges for the same homicide.
Can you move to quash the second information
on the ground of double jeopardy?
In so many cases, like in the case of Buscayno
vs. Milatary Commission, the SC said NO, because
you have not been acquitted or convicted. The
first case was not validly terminated kay pending
pa man. In civil case, that is litis pendencia. Now,
if the case is already decided, convicted or
acquitted, or dismissal without his express
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consent, then there can now be double jeopardy. because of the violation of the right of the accused
In civil case that is res adjudicata. to speedy trial.

However in the case of People vs. City Court of
Manila (121 SCRA 627), the SC made a
pronouncement that mere pendency of a criminal
case against the accused can be invoke as a
ground for double jeopardy.
So, which is which? The issue has been
resolved in the 1993 case of
In the same manner, for double jeopardy to
attach, the law says, the case must have been
dismissed without your express consent. So, as a
general rule, when the accused himself files a
motion to dismiss, he cannot invoke double
jeopardy because he himself intended the
dismissal of his case; it is with his express
consent.

PEOPLE vs. PINEDA

219 SCRA 1 DISMISSAL WITHOUT THE EXPRESS
CONSENT OF THE ACCUSED
HELD: “The mere filing of two (2)
informations charging the same We will explore the first issue: Whether or
offense is not an appropriate basis for not the dismissal is with the express consent of
the invocation of double jeopardy the accused. One of the interesting cases
since the first jeopardy has not yet set interpreting the meaning of the phrase is the 1993
in by a previous conviction, acquittal case of
or termination of the case without the
consent of the accused.”
PEOPLE vs. VERGARA
“The ambiguity stirred by the
221 SCRA 960
imprecise observation in People vs. City
Court of Manila, a 1983 case, can now
FACTS: Vergara was accused of
he considered modified in that a prior
frustrated murder for allegedly
conviction, or acquittal, or termination
conspiring with some people. While
of the case without the express
the case is pending, the accused asked
acquiescence of the accused is still
the provincial prosecutor for a
required before the first jeopardy can
reinvestigation of the case. The request
be pleaded to abate a second
was granted. After reinvestigation,
prosecution.”
the prosecutor made a finding that
there was no crime because the
Now, the law says that you have been
accused acted in self-defense.
convicted or acquitted, or a case against you have
Therefore, the prosecutor moved for
been dismissed without you express consent.
the dismissal of the case in court. The
That is what you mean by “the first jeopardy has
trial court granted the motion for
already been terminated.” But take note that this is
dismissal of the case for frustrated
not a key for the prosecutors to file several the
murder.
same cases against the accused. The law only
However, when the fiscal made a
provides that you cannot raise the defense of
finding that there was no probable
double jeopardy in this situation. But you can
cause, in the meantime naman, the
question the acts of the prosecution to his
complainant appealed such finding to
superior or you may file an injunction case citing
the Secretary of Justice. The
the case of Brocka vs. Enrile. But definitely you
recommendation of the prosecutor
cannot use double jeopardy as defense.
was disapproved. Sabi ng DOJ, “No,
there is a case here. Provincial
Q: What is the difference between acquittal
prosecutor, i-re-file mo.” So, there was
and dismissal of the case?
another information for frustrated
A: Generally, dismissal is not on the merits.
murder filed against the same accused.
But there are dismissals which are classified as
This time, the accused pleaded Double
acquittal, like demurrer to evidence, or dismissal
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 129
Jeopardy. Bakit? According to the
accused:
ACCUSED: “The cases
were dismissed upon motion
of the prosecutor; I was not the
one who filed the motion. So,
when the case was dismissed,
it was dismissed without my
express consent.”
COMPLAINANT: “No,
why did you ask for
reinvestigation? Di ba, the
purpose is that it will lead to
the dismissal of the case? So,
when you filed a motion for
reinvestigation, in effect, you
are seeking a dismissal with
your express consent.”
ACCUSED: “No! Express
consent is different from
intention. When I filed a
motion for reinvestigation, my
intention was to let the case be
dismissed, but I did not give
my express consent. While I
may have intended to let the
case be dismissed upon
moving for reinvestigation, I
never give my express consent
for the dismissal of the case. It
was the prosecutor himself
who did it.”
ISSUE: Is there double jeopardy?
HELD: YES, there is double
jeopardy. When you say express
consent, the consent must be
categorical, clear. You cannot infer
that by simply asking for
reinvestigation. You cannot infer that
there is express consent; that is not
within the concept.
“Express consent has been defined
as that which is directly given either
viva voce or in writing. It is a positive,
direct, unequivocal consent requiring
no inference or implication to supply
its meaning. This is hardly what the
accused gave. What they did was
merely to move for reinvestigation of
the case before the prosecutor. To
equate this with express consent of the
accused to the dismissal of the case in
the lower court is to strain the
meaning of ‘express consent’ too far.
Simply, there was no express consent
of the accused when the prosecutor
moved for the dismissal of the original
Informations.”
There was a second issue in the case of
VERGARA based on the rule on motion. In
general, when you file a motion, you must
furnish a copy of the motion to the adverse party
because, generally, motions cannot be filed ex-
parte unless the motion is non-controversial.
Therefore, when the prosecution filed a motion to
dismiss ex-parte [without furnishing the parties a
copy of the motion].
PEOPLE vs. VERGARA, supra
ISSUE: Is there a necessity to
furnish the parties a copy of the
motion to dismiss?
HELD: NO. It is not necessary. Is
there a necessity to furnish the accused
a copy of the motion to dismiss? Do
you think the accused will oppose the
motion? Of course not because it is
favorable to him. Definitely, the
accused will not question the filing of
the motion to dismiss the criminal
case.
As to the complainant, is there a
necessity for the prosecutor to furnish
a copy of the motion to dismiss the
criminal case to the private offended
party? Remember, every criminal case
is under the direction and control of
the prosecutor. If we will allow the
general rule, if the victim will question
the dismissal, he will be having
control and no longer the prosecutor.
The prosecutor determines whether
there is a case or none. Therefore,
there is also no necessity of furnishing
to the private offended party a copy of
the motion to dismiss.
What should be the remedy of the
private offended party? Because the
offended party is aggrieved, imagine
nawala ang kaso niya! The remedy,
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 130
when the court ordered the dismissal
of the case, is to appeal the order of
dismissal because it is also adverse to
their claim for civil liability. Instead,
they allowed the order of dismissal to
become final and, now, they are
arguing that the order of dismissal is
void. They should have appealed it.
One last point. According to the law, if a case
is dismissed without your express consent, that
could be a basis for double jeopardy.
HOWEVER, jurisprudence says, an order
dismissing a case will NOT constitute double
jeopardy if the order of dismissal is NULL and
VOID. Meaning, an order of dismissal of a case
will constitute double jeopardy on the
assumption that the order of dismissal was a
valid order of dismissal.
Q: What is the usual reason why an order of
dismissal is void?
A: The usual reason is when the prosecution
was deprived of due process. That has been
exemplified in many cases. One of the cases is
Senator Aquino et al. Na-acquit man yan sila ba.
These people were already acquitted by the
Sandiganbayan. How come nabalik ang kaso?
On the theory that everything was pre-arranged
including the acquittal. The SC said, the acquittal
of the case is null and void because the
prosecution was deprived of due process in the
sense that no matter what it does, the acquittal of
the accused was already pre-ordained. So there is
no double jeopardy.
That has been applied in many cases like in
the case of
PEOPLE vs. MOGOL
131 SCRA 296
FACTS: The accused was charged
with physical injuries. After trial in
the MTC, the court discovered that it
should not have been physical injuries,
rather it should have been frustrated
murder because there was intent to
kill eh. The MTC dismissed the case of
physical injuries and told the fiscal to
file information for frustrated murder
dahil mali ang fi-nile mo. The accused
claimed that he was charged for the
same act. Thus, he moved for the
dismissal of the frustrated murder
case.
ISSUE: Is there double jeopardy?
HELD: NONE. There was no
double jeopardy because the order of
the trial court dismissing the physical
injury case is wrong. It was a void
order because what the judge should
have done is to continue trying the
case even if there was an error in the
offense charged. So, if the accused
would be convicted, it is for physical
injuries. In other words, you cannot
order dismissal and then re-file the
case for frustrated murder. Because
the order dismissal is void, there is no
double jeopardy.
However, there was one dissenting justice in
the case of Bogol – former Justice Makasiar. He
said that “there is double jeopardy as the case had
already been tried and submitted for decision
where the MTC judge ordered the physical injury
to be dismissed and ordered the filing of a new
case for frustrated murder in the RTC. Frustrated
murder includes physical injuries. Therefore,
dismissal of the latter resulted in double
jeopardy.”
If you look at it, talagang tama siya (Makasiar,
J.) eh – all the elements are there. But the trouble
is, sabi ng SC, the order of dismissal is void, there
was no valid dismissal – ibalik! The charge for
physical injury was reinstated.
Another instance, the 1992 case of
GORREON vs. RTC OF CEBU
213 SCRA 138
FACTS: The case was set for pre-
trial for 2 days (September 27 and 28).
On the first day of the trial, the
offended party was there pero wala
ang accused. The court said, “We will
have to cancel the hearing for today
and tomorrow on the presumption
that maybe they did not receive the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 131
notice.” The trouble is the following
day, paglabas ng court calendar,
nandoon pa rin ang kaso – it was
supposed to be cancelled. This time,
ang accused naman ang sumipot, ang
offended party wala. Of course, why
would the offended party be there, eh,
na-cancel na. Since the accused was
present for trial, but the prosecution
was not ready because wala ang
testigo niya, the court dismissed the
case for failure of the complainant to
appear and to testify. [Well, the court
and the prosecution should have
remembered that the hearing is
already cancelled.] So, when the
complainant learned about it,
nagreklamo, “I was not supposed to
be there anymore, na-cancel naman.”
They looked at it, nagkamali talaga;
everybody realized this error.
ISSUE: Is there double jeopardy if
the action will be filed again?
HELD: NONE. “The erroneous
dismissal order was issued
capriciously and arbitrarily; it
unquestionably deprived the State of a
fair opportunity to present and prove
its case. Thus, its right to due process
was violated. The said order is null
and void and hence, cannot be
pleaded to bar a re-opening of the case
on the ground of double jeopardy.
Consequently, the first jeopardy was
not terminated and no second
jeopardy threatened the accused.”
“The Judge, Clerk of Court and the
prosecution should shoulder the
blame because unless amnesia
suddenly struck all of them
simultaneously, it cannot be imagined
that in a brief span of about twenty-
four (24) hours, they had all forgotten
about the order dictated in open court
cancelling the hearing for September
27 and 28, 1990. [The order of
cancellation was given the day before,
and the following day nobody
remembered about it.] For the
prosecutor who orally moved for such
cancellation and the Judge himself
who dictated the said order, no
plausible explanation may be offered
for such lapse.”
That is a demonstration of the rule that when
the order of dismissal is null and void, you
cannot plead double jeopardy.
And the last part:
C.) ASSUMING THAT ALL THE
REQUISITES OF DOUBLE
JEOPARDY, ARE PRESENT, THE
ACCUSED IS PROTECTED AGAINST
FROM WHAT OFFENSE?
Assuming the accused has already been
convicted, acquitted or the case is dismissed
without his express consent, and all the requisites
of double jeopardy are present, the accused
cannot be convicted for:
1. for the same offense; or
2. for an attempt to commit the same
offense. [If you are convicted or
acquitted for a consummated offense,
you cannot be charged or convicted or
acquitted for the lesser stage;] or
3. for frustration or attempt thereof; [The
acquittal, conviction or dismissal of
the consummated crimes carries
automatically the frustrated or
attempted stage of the same crime.] or
4. for any other offense which
necessarily includes or is necessarily
included in the offense charged in the
former complaint.
BEING PROSECUTED FOR THE SAME
OFFENSE
What is troublesome here is being prosecuted
for the same offense. This has been the subject of so
many decided cases, whether it is the same
offense or not.
Q: While in a public place, Maya fired a
machine gun, thereby causing panic and physical
injuries to certain persons. She was charged with
serious physical injuries through reckless
imprudence for firing the gun in public.
Subsequently, she was charged with serious
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 132
public disturbance in a public place. Is there
double jeopardy?
A. NONE. While there was only a single act,
two distinct offenses resulted therefrom namely:
(1) physical injuries which is a crime against
persons, and (2) public disturbance which is a
crime against public peace and order. (People vs.
Bacolod, 89 Phil. 621)
Q: Accused was caught fishing with
explosives. He was first prosecuted for illegal
fishing and subsequently, for illegal possession of
explosives. Is there DOUBLE JEOPARDY?
A: NONE. These are two (2) distinct offenses,
the same being punished by two different laws.
There is a law for illegal fishing and another for
illegal possession of explosives. (People vs.
Tinamisan, L- 4081, January 29, 1952)
Q: A complaint for adultery was filed against
Miriam and Cholo covering the period from the
year 1946 to March 14, 1947. Pleading guilty, the
two were accordingly sentenced. On September
17, 1948, a second complaint for adultery was
filed against Miriam and Cholo covering the
period of March 15, 1947 to the date of the filing
of the second complaint. The two moved to quash
the second complaint on the ground of double
jeopardy. Is there double jeopardy?
A: NONE. Adultery is a crime of result and
not of tendency; it is an instantaneous crime
which is consummated at the moment of the
carnal union. Each sexual intercourse constitutes
a crime of adultery, so that there may be as many
complaints for adultery as there are adulterous
acts committed. It is only one relationship but
every carnal act is one crime. (People vs. Zapata,
88 Phil. 688)
Q: An accused stole a revolver, tinago niya. It
turned out to be unlicensed. He was first
prosecuted for theft of firearm and he was
convicted. He was subsequently prosecuted for
illegal possession of firearm. Is there double
jeopardy?
A: NONE. The offenses are different. Theft is
consummated upon the taking, while illegal
possession involves not only the taking but also
the possession and intent to use the firearm.
(People vs. Remerata, 98 Phil. 413)
Q: The accused, without a license, drove his
jeep recklessly such that it turned turtle resulting
into the death of four of its passengers.
Prosecuted for multiple homicide through
reckless imprudence; he was convicted.
Subsequently, he was prosecuted for driving
without a license under the Land Transportation
Law. Is there DOUBLE JEOPARDY?
A: NONE. The two offenses are distinct: one
is punished by the Penal Code and the other by
special law. (People vs. Guanco, 83 Phil. 639)
Q: The accused married twice and lived with
the second woman as husband and wife for quite
some time. Prosecuted for bigamy, he was
convicted. Subsequently, he was prosecuted for
concubinage. Is there DOUBLE JEOPARDY?
A: NONE. The two offenses are distinct. In
bigamy, marriage is an essential element. You
can only commit bigamy if you are married and
you marry another. But in concubinage, marriage
is not an essential element – mere living together
as husband and wife is sufficient. (People vs.
Schneckenburger, 72 Phil. 413) If you are a
married man and you live as husband and wife
with another woman, that is concubinage even if
you will not marry her.
PEREZ vs. COURT OF APPEALS
168 SCRA 236
FACTS: Accused was charged
with consented abduction. He was
acquitted. The court said that it was
qualified seduction pala, and not
consented abduction. So, another
complaint for seduction was filed
against the accused. The accused
pleaded double jeopardy. Is there
double jeopardy?
HELD: NONE. Although they may
have arisen from the same set of facts,
[and they are both crimes against
chastity] they are not identical offenses
as would make applicable the rule on
double jeopardy.
There are similar elements
between Consented Abduction and
Qualified Seduction, namely: (1) that
the offended party is a virgin, and, (2)
that she must be over twelve (12) and
under eighteen (18) years of age.
However, two elements differentiate
the two crimes. Consented Abduction,
in addition to the two common
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elements, requires that: (1) the taking
away of the offended party must be
with her consent, after solicitation or
cajolery from the offender, and, (2) the
taking away of the offended party
must be with lewd designs. On the
other hand, an information for
Qualified Seduction also requires that:
(1) the crime be committed by abuse of
authority, confidence or relationship,
and, (2) the offender has sexual
intercourse with the woman [which is
not required in abduction].
NIERRA vs. DACUYCUY
181 SCRA 1
FACTS: A check bounced. Two
cases were filed: (1) Estafa, under
Article 315, RPC, and (2) BP 22. Is
there DOUBLE JEOPARDY?
HELD: NONE. The two crimes are
distinct. While, in filing of the two
sets of information may refer to
identical acts, the prosecution cannot
be limited to one offense because a
single criminal act may give rise to a
multiplicity of offenses with different
elements. Prosecution for the same act is
not prohibited. What is forbidden is
prosecution for the same offense.
However under the Constitution,
if the same act is punished by a
national law and an ordinance, iba na
yan! Conviction or acquittal in either
one will constitute double jeopardy –
that is the exception. But, if you are
violating two national laws, e.g. BP 22
and Estafa, then there is no double
jeopardy.
Those are examples of NO double jeopardy.
HOWEVER, there are cases where the crimes
are not identical but double jeopardy can be
applied. The best example is delito continuado
because the SC said the protection against double
jeopardy may be extended to a case of a single
criminal act impelled by a single criminal intent,
resulting into two or more juridically identical
offenses.
Q: Give examples of the rule mentioned
above.
A: The following:
1. Mr. Cadungog stole two (2) fighting
cocks in the same place. He was
prosecuted for stealing one cock. He
cannot be prosecuted anymore for
stealing the other cock. Although there
are two acts of taking but there is only
one criminal intent – that is where
double jeopardy will arise. (People vs.
De Leon);
2. A person was charged with illegal
importation of blasting caps – a
device for preparing explosives –
cannot be subsequently prosecuted for
illegal possession of the same, for
there can hardly be importation
without possession. (People vs.
Elkanish, 90 Phil. 53);
3. A person charged with reckless
driving under the LTO Law cannot be
subsequently charged with damage to
property through reckless imprudence
because reckless driving is the
essential element of both offenses.
(People vs. Diaz, 94 Phil. 714; People
vs. Belga, 100 Phil. 996);
4. A person convicted of illegal
possession of opium cannot be
subsequently prosecuted for illegal
possession of opium pipe found
together with the opium. (U.S. vs. Pho
Chi, 20 Phil. 104);
5. Possession of two or more unlicensed
firearms in one place constitutes but
one offense so that conviction for
illegal possession of one firearm is a
bar to a subsequent prosecution for
possession of the other or others. (U.S.
vs. Gustilo, 19 Phil. 208)
MALLARI vs. PEOPLE
168 SCRA 422
FACTS: The accused wanted to
mortgage two (2) lots to the victims,
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let us say for P3,000, at P1,500 each.
Sabi ng victim, “Kulang man ang
kwarta ko. I will only lend you P1,500,
good for one lot lang. You ask my
mother-in-law baka may pera siya.”
Meron man din. So hinati – the other
lot was mortgaged to the mother-in-
law of the victim for P1,500. It turned
out that all those deed of mortgage
were falsified. Two cases were filed
against the accused because there
were two victims.
ISSUE: Is there double jeopardy?
HELD: YES. There is only one
crime committed. There is only one
intent to defraud. It is just accidental
that the intended victim only got one-
half. There is a similar crime
consisting of a series of acts, but all
arising from one criminal resolution.
ENRILE vs. AMIN
September 13, 1990
FACTS: Enrile was charged for
rebellion during the coup d’ etat
during the time of President Aquino
for conspiring with Honasan. During
the highlight of the coup attempt,
nandun si Honasan sa birthday party
ni Enrile. While the case for rebellion
was pending, another case was file
against him under PD No. 1829 for
harboring or concealing fugitives. The
prosecution contended that harboring,
concealing a fugitive is punishable
under a special law, while rebellion is
punishable under the Penal Code.
HELD: The prosecution is wrong.
In the light of the absorption doctrine,
the prosecution must fail. All crimes
which are mere components of
rebellion or are committed in
furtherance thereof are absorbed in
rebellion. “The theory of absorption in
rebellion cases must not confine itself
to common crimes but also to offenses
under special laws which are
perpetrated in furtherance of the
political offense.” And yet, the two
crimes are punishable by two different
statutes. Technically, they are not the
same offense and yet one absorbs the
other because when you are in
conspiracy with the rebels, necessarily
you harbor each other. You cannot be
expected to be a traitor to each other.
So, how can you separate one crime
from the others?
Alright. And both of them were among the
senators – Honasan and Enrile. Now, we will go
to the third senator – Miriam Santiago.
SANTIAGO vs.
GARCHITORENA
228 SCRA 214
FACTS: Miriam Santiago was
charged criminally with violation of
Anti-Graft and Corrupt Practices Act
allegedly committed by her by
favoring unqualified aliens when she
was still the Immigration
Commissioner. Later, the prosecution
sought to change the charge by filing
thirty-two (32) amended information
since 32 aliens were benefited. So, 32
cases were filed.
HELD: The prosecution is directed
to consolidate the 32 informations into
1 information charging only 1 offense.
“The concept of delito continuado,
although an outcrop of the Spanish
Penal Code, has been applied to
crimes penalized under special laws
citing Article 10 of the RPC. The 32
Amended Informations aver that the
offenses were committed on the same
period of time, i.e., on or about
October 17, 1988. The strong
probability even exists that the
approval of the application for the
legalization of the stay of the 32 aliens
was done by a single stroke of the pen,
as when the approval was embodied
in the same document.”
FOR ANY OTHER OFFENSE WHICH
NECESSARILY INCLUDES OR IS NECESSARILY
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INCLUDED IN THE OFFENSE CHARGED IN
THE FORMER COMPLAINT
Thus, a charge of Murder, double jeopardy
for Homicide; a charge for Homicide, double
jeopardy for murder. Either one eh, baliktaran!
Basta one offense is included in the other.
Robbery includes theft; serious physical injuries
includes less serious physical injuries and slight
physical injuries. (People vs. Martinez, 55 Phil. 6;
People vs. Belga, 100 Phil. 996) Sama-sama lahat
‘yan. That is covered by the protection against
double jeopardy.
Kaya nga in the plea-bargaining, when the
accused pleads guilty to a lesser offense included
in the crime charged with consent of the
prosecution and the offended party, there is
double jeopardy already. You cannot be charged
anymore for a lighter offense. That is covered by
double jeopardy rule.
PEOPLE vs. RELOVA, supra
HELD: “The law here seeks to
prevent harassment of an accused
person by multiple prosecutions for
offenses which though different from
one another are nonetheless each
constituted by a common set or
overlapping sets of technical elements.
Otherwise, an unlawful act or
omission may give use to several
prosecutions depending upon the
ability of the prosecuting officer to
imagine or concoct as many offenses
as can be justified by said act or
omission by simply adding or
subtracting essential elements. Under
the theory of appellant the crime of
rape may be converted into a crime of
coercion, by merely alleging that by
force and intimidation the accused
prevented the offended girl from
remaining a virgin.”
EXCEPTIONS TO THE DOUBLE JEOPARDY RULE
Q: What are the exceptions to the double
jeopardy rule?
A: There are three (3) exceptions, under
Section 7:
1. the graver offense developed
due to supervening facts
arising from the same act or
omission constituting the
former charge; (Section 7 [a])
2. the facts constituting the
graver charge became known
or were discovered only after a
plea was entered in the former
complaint or information;
(Section 7 [b]) or
3. the plea of guilty to the lesser
offense was made without the
consent of the prosecutor and
of the offended party except as
provided in section 1(f) of Rule
116. (Section 7[c])
THE GRAVER OFFENSE DEVELOPED DUE
TO SUPERVENING FACTS ARISING FROM THE
SAME ACT OR OMISSION CONSTITUTING THE
FORMER CHARGE
This is also known as the supervening fact
doctrine, also known as the Melo Doctrine
because this rule was laid down in the case of
Melo vs. People, 45 Phil. 766.
EXAMPLE: Mortz stabbed Kim. Kim was
confined in the hospital. Mortz was charged with
frustrated homicide. He pleaded guilty. After 2
days, Kim died. So the fiscal amended the
information to consumated homicide. Mortz
pleaded guilty double jeopardy. Under the Melo
doctrine, there is no double jeopardy because of
the supervening fact of death of the victim arising
from the same act or omission constituting the
former charge – the graver offense developed due
to the supervening fact.
The reasoning in Melo is that, when the
accused was charged with frustrated homicide,
the crime of consummated homicide was not yet
in existence because the victim is still alive. So the
crime of consummated homicide started to come
out after the arraignment. Therefore, the
information can be changed to consummated
homicide.
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THE FACTS CONSTITUTING THE GRAVER
CHARGE BECAME KNOWN OR WERE
DISCOVERED ONLY AFTER A PLEA WAS
ENTERED IN THE FORMER COMPLAINT OR
INFORMATION
Now, the Melo doctrine had one flaw which
the SC observed in other cases. For example we
will change the facts:
Mortz shot Kim. Kim was confined
in the hospital. Mortz was charged
with frustrated homicide. Let’s say
Mortz will be arraigned tomorrow, but
tonight Kim died. The following
morning, nobody knew about it. So
the arraignment continued and Mortz
pleaded guilty to frustrated homicide.
After Mortz was sentenced to
frustrated homicide, that is the time
the prosecutor learned that Kim died.
He now wants to change to
consummated homicide.
Can he change the information? The SC said,
no more. The Melo doctrine does not apply there
because you cannot say that the death of the
victim supervenes after the arraignment – even
before the arraignment, the victim was already
dead. The crime of consummated homicide was
already in existence. Mortz could have been
charged already when he was arraigned. “Pero
hindi man namin alam?” Ah pasensya, that is
your risk. So that is where the Melo doctrine
cannot apply.
This creates unfairness eh. There were cases
where that really happens. Like in one case
where the accused was charged with physical
injuries in the arm of the victim. Less serious
physical injuries, because the doctor said it
would heal in two weeks. He was charged,
pleaded guilty, sentenced to less serious physical
injuries – arresto mayor. Then after one month,
wala pa man naayo, the injury was still there.
The victim went to the doctor. Ini-x-ray, bali pala
ang buto! Meaning, the crime all along was
serious. The trouble is, the fracture was not
detected by the doctor. So they sought to change
the charge to serous physical injuries. The SC
said, NO, the fracture did not supervene after the
arraignment. It was there all along. Only, it was
discovered after. You cannot change the
information because double jeopardy applies.
What is worse is the case of PEOPLE VS. CITY
COURT OF MANILA, where the victim was
charged with physical injuries through reckless
imprudence and then arraigned kaagad ang
accused. Yon pala, patay na ang victim. The fiscal
move to postpone the arraignment to verify the
status of the victim. HELD: Ah walang
postponement! Tuloy!
So it was really unfair. It is not covered by the
Melo Doctrine. You cannot say tha the greater
injury came after. It was already there all along.
Only it was discovered after the plea.
NGAYON, para wala ng gulo meron ng
paragraph [b]:
“the facts constituting the
graver charge became known or
were discovered only after a
plea was entered in the former
complaint or information;”
So even if the graver offense was already
existing before the arraignment but it became
known only after the plea, there is no more
double jeopardy. This amendment created
another exception not covered by the Melo
doctrine.
THE PLEA OF GUILTY TO THE LESSER
OFFENSE WAS MADE WITHOUT
THE CONSENT OF THE PROSECUTOR AND OF
THE OFFENDED
PARTY EXCEPT AS PROVIDED IN SECTION
1(F) OF RULE 116.
You know this – plea-bargaining, plea of
guilty to a lesser offense – it must be wit the
consent of the prosecutor and the offended party.
And remember, once there is a plea-bargaining,
you cannot be charged anymore for the graver
offense except as provided in Section 1 [f], Rule
116 – when during the plea-bargaining the
offended party will not show up, in which case,
the consent of the prosecutor alone is required.
This is a provision which compels the offended
party to appear in the plea-bargaining.
Otherwise, the accused may offer to plea guilty to
a lesser offense and the prosecutor will say, “OK”
– you are bound because you did not appear.
Q: But suppose Mortz has already started
serving his sentence for frustrated homicide?
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A: There is no problem because under the last
paragraph of Section 7, “In any of the foregoing
cases, where the accused satisfies 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.”
SEC. 8. Provisional
dismissal. – A case shall not
be provisionally dismissed
except with the express consent
of the accused and with notice
to the offended party.
The provisional dismissal of
offenses punishable by
imprisonment not exceeding six
(6) years or a fine of any
amount, or both, shall become
permanent one (1) year after
issuance of the order without
the case having been revived.
With respect to offenses
punishable by imprisonment of
more than six (6) years, their
provisional dismissal shall
become permanent two (2) years
after issuance of the order
without the case having been
revived. (n)
Section 8 is an entirely new provision.
The concept of provisional dismissal means
there is no double jeopardy – the case is
temporarily dismissed. So obviously the element
of double jeopardy are not around. So, there is a
way for the case to be revived in the future. The
1985 rules has no direct provision governing
provisional dismissal. The guidelines are not
clear. You can re-file because there is no double
jeopardy. The problem is, can that be case be re-
filed 5 years after?
accused to assert any ground of
a motion to quash before he
pleads to the complaint or
information, 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 any objections except
those based on the grounds
provided for in paragraphs (a),
(b), (g), and (i) of section 3
of this Rule. (8a)
Q: What is the effect if the person does not file
any motion to quash?
A: He is WAIVING the grounds for the
motion to quash, EXCEPT:
1. lack of jurisdiction over the subject
matter; (Section 3 [a])
2. the information does not charge any
offense; (Section 3 [b])
3. the criminal liability has already been
extinguished; (Section 3 [g])
4. double jeopardy. (Section 3 [i])
Meaning, even if you did not raised it in the
beginning, you can still raised it during the trial.
The rule is similar to civil procedure – defenses
and objections not raised in a motion to dismiss
are deemed waived, except 1.) lack of jurisdiction
over the subject matter; 2.) res adjudicata; 3.) litis
pendentia; 4.) statute of limitations.

Q: Under the new rules there is now a

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

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

provisional dismissal becomes permanent. So
meron ng deadline so that the prosecutor or the
offended party will not buy his time, “ah
provisional! Puwede yan anytime!” Before kasi
noon, ganun eh. So there must be a deadline.

SEC. 9. Failure to move to

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

diligence. He shall be
And then continuous trial until terminated. The considered unavailable whenever
trial period shall not exceed 180 days, taken from his whereabouts are known but
the Speedy Trial Act and SC Circulars. They are his presence for trial cannot
be obtained by due diligence.
now incorporated in the new rules. (c) Any period of delay
resulting from the mental
There are many provisions here which are incompetence or physical
inability of the accused to
new in the sense that they are found in the rules stand trial.
for the first time. However, even before the new (d) If the information is
rules took effect, they were considered as already dismissed upon motion of the
prosecution and thereafter a
existing provisions because of the Speedy Trial charge is filed against the
Act and SC Circular 38-98. Ngayon, nandito na. accused for the same offense,
So we will not go over them one by one. I will just any period of delay from the
date the charge was dismissed
point them out. to the date the time limitation
would commence to run as to the
The new provisions are Section 3 up to subsequent charge had there
been no previous charge.
Section 10: (e) A reasonable period of
delay when the accused is
SEC. 3. Exclusions.- The joined for trial with a co-
following periods of delay accused over whom the court has
shall be excluded in computing not acquired jurisdiction, or,
the time within which trial as to whom the time for trial
must commence: has not run and no motion for
(a) Any period of delay separate trial has been
resulting from other granted.
proceedings concerning the (f) Any period of delay
accused, including but not resulting from a continuance
limited to the following: granted by any court motu
(1) Delay resulting from an proprio, or on motion of either
examination of the physical and the accused or his counsel, or
mental condition of the the prosecution, if the court
accused; granted the continuance on the
(2) Delay resulting from basis of its findings set forth
proceedings with respect to in the order that the ends of
other criminal charges against justice served by taking such
the accused; action outweigh the best
(3) Delay resulting from interestof the public and the
extraordinary remedies against accused in a speedy trial.
interlocutory orders; (sec. 9, cir. 38-98)
(4) Delay resulting from
pre-trial proceedings; SEC. 4. Factors for granting
provided, that the delay does continuance. – The following
not exceed thirty (30) days; factors, among others, shall be
(5) Delay resulting from considered by a court in
orders of inhibition, or determining whether to grant a
proceedings relating to change continuance under section 3(f)
of venue of cases or transfer of this Rule.
from other courts; (a) Whether or not the
(6) Delay resulting from a failure to grant a continuance
finding of existence of a in the proceeding would likely
prejudicial question; and make a continuation of such
(7) Delay reasonably proceeding impossible or result
attributable to any period, not in a miscarriage of justice;
to exceed thirty (30) days, and
during which any proceeding (b) Whether or not the case
concerning the accused is taken as a whole is so novel,
actually under advisement. unusual and complex, due to the
(b) Any period of delay number of accused or the nature
resulting from the absence or of the prosecution, or that it
unavailability of an essential is unreasonable to expect
witness. adequate preparation within the
For purposes of this periods of time established
subparagraph, an essential therein.
witness shall be considered In addition, no continuance
absent when his whereabouts are under section 3(f) of this Rule
unknown or his whereabouts shall be granted because of
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congestion of the court’s the prisoner of the charge and

calendar or lack of diligent of his right to demand trial.
preparation or failure to If at anytime thereafter the
obtain available witnesses on prisoner informs his custodian
the part of the prosecutor. that he demands such trial, the
(sec. 10, cir. 38-98) latter shall cause notice to
that effect to be sent promptly
SEC. 5. Time limit following to the public attorney.
an order for new trial. – If (c) Upon receipt of such
the accused is to be tried notice, the public attorney
again pursuant to an order for shall promptly seek to obtain
a new trial, the trial shall the presence of the prisoner
commence within thirty (30) for trial.
days from notice of the order, (d) When the custodian of
provided that if the period the prisoner receives from the
becomes impractical due to public attorney a properly
unavailability of witnesses and supported request for the
other factors, the court may availability of the prisoner
extend but not to exceed one for purpose of trial, the
hundred eighty (180) days. For prisoner shall be made
the second twelve-month period, available accordingly. (sec.
the time limit shall be one 12, cir. 38-98)
hundred eighty (180) days from
notice of said order for new SEC. 8. Sanctions. – In any
trial. (sec 11, cir. 38-98) case in which private counsel
for the accused, the public
SEC. 6. Extended time attorney, or the prosecutor:
limit.- Notwithstanding the (a) Knowingly allows the
provisions of section 1(g), case to be set for trial
Rule 116 and the preceding without disclosing that a
section 1, for the first necessary witness would be
twelve-calendar-month period unavailable for trial;
following its effectivity on (b) Files a motion solely
September 15, 1998, the time for delay which he knows is
limit with respect to the totally frivolous and without
period from arraignment to merit;
trial imposed by said provision (c) Makes a statement for
shall be one hundred eighty the purpose of obtaining
(180) days. For the second continuance which he knows to
twelve-month period, the time be false and which is material
limit shall be one hundred to the granting of a
twenty (120) days, and for the continuance; or
third twelve-month period, the (d) Willfully fails to
time limit shall be eighty (80) proceed to trial without
days. (sec. 7, cir. 38-98) justification consistent with
the provisions hereof, the
SEC. 7. Public attorney’s court may punish such counsel,
duties where accused is attorney, or prosecutor, as
imprisoned. – If the public follows:
attorney assigned to defend a (1) By imposing on a counsel
person charged with a crime privately retained in
knows that he latter is connection with the defense o
preventively detained, either fan accused, a fine not
because he is charged with a exceeding twenty thousand pesos
bailable crime but has no means (P20,000.00);
to post bail, or, is charged (2) By imposing on any
with a non-bailable crime, or, appointed counsel de oficio,
is serving a term of public attorney, or prosecutor
imprisonment in any penal a fine not exceeding five
institution, it shall be his thousand pesos (P5,000.00); and
duty to do the following: (3) By denying any defense
(a) Shall promptly undertake counsel or prosecutor the right
to obtain the presence of the to practice before the court
prisoner for trial or cause a trying the case for a period
notice to be served on the not exceeding thirty (30) days.
person having custody of the The punishment provided for by
prisoner requiring such person this section shall be without
to so advise the prisoner of prejudice to any appropriate
his right and demand trial. criminal action or other
(b) Upon receipt of that sanction authorized under these
notice, the custodian of the rules. (sec. 13, cir. 38-98)
prisoner shall promptly advise
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There is something here in Section 8 that I (b) The accused may present
evidence to prove his defense
want to bring out – mga kastigo, sanctions ba! and damages, if any, arising,
Alam mo ang kawawa dito, mga abogado eh – from the issuance of a
fiscals, defense counsels, even the PAO lawyers – provisional remedy in the case.
(c) The prosecution and the
if they are responsible for delaying the trial of the defense may, in that order,
criminal case. present rebuttal and sur-
rebuttal evidence unless the
court, in furtherance of
Just imagine, P20,000 if it is the private justice, permits them to
defense lawyer. That is the maximum of course. present additional evidence
Ang PAO naman, P5,000 – 75% discount! Ma- bearing upon the main issue.
(d) Upon admission of
suspend ka pa. evidence of the parties, the
case shall be deemed submitted
SEC. 9. Remedy where accused for decision unless the court
is not brought to trial within directs them to argue orally or
the time limit. – If the to submit written memoranda.
accused is not brought to trial (e) When the accused admits
within the time limit required the act or omission charged in
by Section 1(g), Rule 116 and the complaint or information
Section 1, as extended by but interposes a lawful
Section 6 of this rule, the defense, the order of trial may
information may be dismissed on be modified. (3a)
motion of the accused on the
ground of denial of his right
to speedy trial. The accused
The order of the trial in the criminal case is
shall have the burden of almost the same pattern as in civil cases.
proving the motion but the
prosecution shall have the
burden of going forward with Q: Who presents evidence first?
the evidence to establish the A: The prosecution. Under Section 11 [a],
exclusion of time under section “The prosecution shall present evidence to prove
3 of this rule. The dismissal
shall be subject to the rules the charge and, in the proper case, the civil
on double jeopardy. liability.” So you prove the charge and the civil
Failure of the accused to liability.
move for dismissal prior to
trial shall constitute a waiver
of the right to dismiss under Q: Ano yung “in the proper case”?
this section. (sec. 14, cir. A: That is because if the civil liability has
38-98)
already been reserved, ah wala na – forget
SEC. 10. Law on speedy trial evidence of civil liability where there is already
not a bar to provision on reservation. Pero kung hindi, then it is deemed
speedy trial in the
Constitution. – No provision of instituted with the criminal case.
law on speedy trial and no rule
implementing the same shall be Under paragraph [b], provisional remedies
interpreted as a bar to any
charge of denial of the right are allowed in criminal cases, like attachments,
to speedy trial guaranteed by etc. in the same way if the civil action is deem
section 14(2), article III, of instituted, the offended party can ask a
the 1987 Constitution. (sec.
15, cir. 38-98) preliminary attachment of the property under
Rule 127.
Take note of Section 9 and 10. Please correlate
this on the rights of the accused to speedy trial as Paragraph [e] refers to “trial in reverse.” The
mention in Section 1[h] of Rule 115 on the rights best example is when the accused raises self-
of the accused. defense. The burden of proof is automatically
shifted to the accused. But this should be
SEC. 11. Order of trial. – included during the pre-trial as provided under
The trial shall proceed in the Rule 118, Section 1 [e]:
following order:
(a) The prosecution shall
present evidence to prove the SECTION 1. Pre-trial;
charge and, in the proper case, mandatory in criminal cases. –
the civil liability. In all criminal cases
cognizable by the
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Sandiganbayan, Regional Trial least three (3) days before the

Court, Metropolitan Trial scheduled examination. The
Court, Municipal Trial Court in examination shall be taken
Cities, Municipal Trial Court before a judge, or, if not
and Municipal Circuit Trial practicable, a member of the
Court, the court shall, after Bar in good standing so
arraignment and within thirty designated by the judge in the
(30) days from the date the order, or if the order be made
court acquires jurisdiction by a court of superior
over the person of the accused, jurisdiction, before an
unless a shorter period is inferior court to be designated
provided for in special laws or therein. The examination shall
circulars of the Supreme Court, proceed notwithstanding the
order a pre-trial conference to absence of the prosecutor
consider the following: provided he was duly notified
x x x x x x x of the hearing. A written
(e) modification of the record of the testimony shall
order of trial if the accused be taken. (5a)
admits the charge but
interposes a lawful defense;
x x x x x x x The grounds are almost identical. This is
deposition actually. Only, it is called conditional
Q: Is there such a thing as deposition-taking examination. That is the term used here.
in criminal cases?
A: YES, under Section 12: Take note, connect this with Section 1[f], Rule
115 – rights of the accused. Section 12 is an
SEC. 12. Application for exception to the right to confront and cross-
examination of witness for examine because you cannot insist during the
accused before trial. – When
the accused has been held to trial to confront and cross-examine the witness
answer for an offense, he may, under Rule 115 Section 1[f] when we was already
upon motion with notice to the examined under Section 12.
other parties, have witnesses
conditionally examined in his
behalf. The motion shall state: Q: Is the remedy of deposition-taking also
(a) the name and residence of available to the prosecution?
the witness; (b) the substance
of his testimony; and (c) that A: YES, under Section 15:
the witness is sick or infirm
as to afford reasonable ground SEC. 15. Examination of
for believing that the will not witness for the prosecution. –
be able to attend the trial, or When it is satisfactorily
resides more than one hundred appears that a witness for the
(100) kilometers from the place prosecution is too sick or
of trial and has no means to infirm to appear at the trial
attend the same, or that other as directed by the court, of
similar circumstances exist has to leave the Philippines
that would make him unavailable with no definite date of
or prevent him from attending returning, he may forthwith be
the trial. The motion shall be conditionally examined before
supported by an affidavit of the court where the case is
the accused and such other pending. Such examination, in
evidence as the court may the presence of the accused, or
require. (4a) in his absence after reasonable
notice to attend the
examination has been served on
Q: How is deposition in criminal cases being him, shall be conducted in the
done? same manner as an examination
A: Read Section 13: at the trial. Failure or
refusal of the accused to
attend the examination at the
SEC. 13. Examination of trial. Failure or refusal of
defense witness; how made. – If the accused to attend the
the court is satisfied that the examination after notice shall
examination of a witness for be considered a waiver. The
the accused is necessary, an statement taken may be admitted
order shall be made directing in behalf of or against the
that the witness be examined at accused. (7a)
a specific date, time and place
and that a copy of the order be
served on the prosecutor at Let us try to compare Section 13 (defense) and
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Section 15 (prosecution): Let’s go to the defense SEC. 16. Trial of several

accused. – When two or more
witness under Section 13: accused are jointly charged
with an offense, they shall be
Q: Before whom will the examination of the tried jointly unless the court,
in its discretion and upon
witness be taken? motion of the prosecutor or any
A: It DEPENDS – before the judge, or if not accused, orders separate trial
practicable, a member of the bar in good standing for one or more accused. (8a)
designated by the judge in the order.
Remember that there can be a joint trial of two
Now, you compare that with Section 15. In or more criminal cases if they arose of the same
Section 15, you will notice: “he may forthwith be incident like Judee fired her AK-47 and killed two
conditionally examined before the court where the case or more people one after the other. But you
is pending.” Unlike in Section 13 – before the cannot file one information because that will be
judge, or if not practicable, a member of the bar in duplicitous. There must be one information for
good standing… it is more lenient no? every one homicide and then you move for a joint
trial.
Q: What is the reason why the law is more
generous to the defense witness? Q: Now, how do you compare this rule with
A: According to one case through Justice Feria, civil cases?
this is because the government has the resources A: In civil cases, when there is a common
to get he testimony of its witnesses. Pero ang question of fact or law involving two or more
defense may have a hard time lalo na kapag parties, there is such a thing as filing only one
pobre. complaint – joinder of causes of action or parties.
But in criminal cases, that is not allowed.
SEC. 14. Bail to secure Consolidation in criminal cases in only for the
appearance of material witness. purpose of joint trial lang and you cannot have
– When the court is satisfied,
upon proof of oath, that a one information charging more than one offense.
material witness will not
testify when required, it may, DISCHARGE OF AN ACCUSED TO BE
upon motion of either party,
order the witness to post bail STATE WITNESS
in such sum as may be deemed
proper. Upon refusal to post SEC. 17. Discharge of
bail, the court shall commit accused to be state witness. –
him to prison until he complies When two or more persons are
or is legally discharged after jointly charged with the
his testimony has been taken. commission of any offense, upon
(6a) motion of the prosecution
before resting its case, the
It seems that the prosecution here is under the court may direct one or more of
the accused to be discharged
mercy of his witnesses. Meaning, kung ayaw ng with their consent so that they
testigo, wala kang magawa. But under Section may be witnesses for the state
14, you can ask the court to order the witness to when, after requiring the
prosecution to present evidence
post bail. And if he refuses to post bail, he can be and the sworn statement of each
arrested. This is an instance where a witness can proposed state witness at a
be jailed ahead of the accused. hearing in support of the
discharge, the court is
satisfied that:
But actually the truth is in most cases, (a) There is absolute
prosecution witnesses do not appear not because necessity for the testimony of
the accused whose discharge is
ayaw but because takot! They are afraid of what requested;
will happen like the accused might harass them. (b) There is no other direct
And the law knows that. That is why there is also evidence available for the
proper prosecution of the
another alternative – RA 6981, The Witness offense committed, except the
Protection Program which took effect last April of testimony of said accused;
1991. You read that so you will have an idea. (c) The testimony of said
accused can be substantially
corroborated in its material
points;
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(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.
Evidence adduced in support
of the discharge shall
automatically form part of the
trial. If the court denies the
motion for discharge of the
accused as state witness, his
sworn statement shall be
inadmissible in evidence. (9a)
SEC. 18. Discharge of
accused operates as acquittal.
– The order indicated in the
preceding section shall amount
to an acquittal of the
discharged accused and shall be
a bar to future prosecution for
the same offense, unless the
accused fails or refuses to
testify against his co-accused
in accordance with his sworn
statement constituting the
basis for his discharge. (10a)
Let’s take Section 17 and Section 18 together.
Discharge of an accused to be state witness means
that you will convert an accused to become
“Hudas,” save his neck but hang them all!
Under Section 18, once the witness is
discharged under Section 17, he is now
CONSIDERED ACQUITTED and there is no way
for him to be brought back in the case EXCEPT
when he changes his mind and ayaw na niyang
mag-testify. That is the only exception.
Q: What are the requirements before a witness
can be discharged?
A: Section 17 enumerates the requirements.
“SAID ACCUSED DOES NOT APPEAR TO
BE THE MOST GUILTY.”
Let’s comment on some of the requirements.
One of the most important requirements for the
discharge of an accused is the fourth one – “Said
accused does not appear to be the most guilty.” Based
from what I read from time to time, even lawyers
have been commenting on this. It seems they are
misquoting this eh, like 2 days ago, a lawyer said
that we must discharge the accused because he is
the least guilty.
That is not what the law says! What the law
says is, HE DOES NOT APPEAR TO BE THE
MOST GUILTY. And it is not the same with HE
IS THE LEAST GUILTY.
EXAMPLE: Mortz, Pao and Jet. Mortz –
principal; Pao – accomplice; Jet – accessory. Pag-
sinabi mong “the least guilty,” hindi mo
puwedeng gamitin si Pao. Si Jet dapat ang
gamitin mo because he is the least guilty. [Tsk! tsk!
Ginamit si Jet. Ginamit!] PERO, pag-sinabi mong “he does
not appear to be the most guilty”, you can use Pao,
although there is somebody to be less guilty.
Basta ang importante, hindi si Mortz. So, there is
a difference between the two phrases.
Q: What do you mean by the phrase “does not
appear to be the most guilty’”?
A: There are cases:
PEOPLE vs. OCIMAR
August 17, 1992
FACTS: This case involved a hold-
upping incident, committed in a bus in
Manila while traveling in the North
Express Way. There were four (4)
hold-uppers who rode in the bus.
When they reach a certain point, they
stood up and pulled to their guns and
robbed the passengers. And they
placed themselves strategically: One of
them stood behind the driver, “o, wag
kang kikilos, drive ka lang.” Yung iba
namang dito. Kanya-kanyang silang
role eh. The others were the ones who
divested the passengers, “mga pitaka
ninyo, relo… lahat!”
Now, there was one passenger
there who was a military man wearing
civilian clothes and may baril siya. So
he wanted to fight back but one of
them saw him. Pag-bunot niya,
inunahan siya! So accused A shot that
passenger. Accused D naman saw A
shoot the victim. And of course all of
them were charged with Robbery
with Homicide in conspiracy - the act
of one is the act of all.
The prosecution wants to utilize D
– the one who is behind the driver – as
state witness. The other accused
objected claiming conspiracy – “we are
all co-principal – the act of one is the
act of all. So why do you say you are
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not the most guilty? Pare-pareho lang
tayo. Same penalty.”
ISSUE: Will accused D be
qualified under the phrase “does not
appear to be the most guilty”?
HELD: YES. When you say “he
does not appear to be the most guilty”,
you do not apply the rule on
conspiracy. But you apply the rule on
individual acts. In reality, who is more
guilty? The one who really shot the
victim or the one who is just behind
the driver? The reality is, the most
guilty is the one who shot, although
for purposes of the RPC both of you
are co-principal. So, you look at it that
way. Do not apply the principle of the
act-of-the-one-is-the-act-of-all. You
consider the most guilty in terms of
the participation.
“By ‘most guilty’ means the highest
degree of culpability in terms of
participation in the commission of the
offense and not the severity of the
penalty imposed. While all the
accused maybe given the same penalty
but by reason of culpability one may
be least guilty if we take into account
his degree of participation in the
perpetuation of the offense.”
Q: Generally, when the fiscal, after criminal
investigation, believes that one of them can be a
state witness, therefore he will not include his
name in the information. Is it allowed?
A: NO, you have to include him first before
he can be a state witness. Let the court decide
whether he will be a state witness or not. You
cannot discharge on your own. Remember under
the Rules, the prosecutor is bound to file the
information against ALL those who appear to be
responsible including this guy who you want to
use as state witness. But when you reach the
court, you file a motion to discharge and let the
court who will do it.
And under the New Rules, there must be a
HEARING to determine whether there should be
discharge or not. That’s why the rule said, “the
trial court must require the prosecution to present
evidence and the sworn statement of each proposed
state witness at a hearing in support of the discharge.”
So, there must be an affidavit and there must be a
hearing.
In the 1985 Rules, there was no need of a
hearing. No need for the prosecution to present
evidence. Normally the fiscal will just file a
motion that we would like to use this witness and
the court will discharge. Now, hindi na pwede
yan because in most cases in the past, a person is
discharge and it turns out that he is the most
guilty. To avoid that possibility, there is now
need to present affidavit, etc. and there must be a
hearing. The court will require presentation of
evidence and it will decide whether or not to
discharge.
Now, sabi ng court in the hearing for the
discharge of the accused, “There is no need to
discharge him. Motion to discharge, denied!” So sabi
ng accused, “Kawawa na ako nito because I already
admitted the crime in my affidavit! Tapos, hindi pala
ako qualified! [‘nak ng pating naman o!].” What will
happened to you now? You Look at the last
paragraph of Section 17:
“Evidence adduced in support
of the discharge shall
automatically form part of the
trial. If the court denies the
motion for discharge of the
accused as state witness, his
sworn statement shall be
inadmissible in evidence.”
So that is fair enough because the affidavit
which is practically an admission of his
participation, then if he is not discharged, do not
use it against him. It is inadmissible as evidence
against him. The leading case in this issue is the
1993 case of
PEOPLE vs. CA AND
INSPECTOR JOE PRING
223 SCRA 475
FACTS: Pring was involved in
kidnapping and one policeman
testified against him – Nonilo Arile.
There was a motion to discharge Arile
to testify against Pring. Then the
prosecution gave the defense the
affidavit of Arile. Based on that, the
court ordered the discharge of Arile.
Pring questioned the procedure. This
is the first case where the SC applied
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 146
this rule on hearing on the discharge
of an accused. Sabi ni Pring, “Where is
the hearing?” Prosecution: “Yon palang
motion to discharge na binigay namin sa
inyo?” Pring: “Ah, hindi naman
hearing yun! Hearing means, ilagay
mo si Arile sa witness stand subject to
cross-examination because even under
Section 17, evidence adduced to
support the discharge shall
automatically form part of the trial.
Meaning, the state witness will not
testify again. So what is contemplated
here is personal testimony and not the
affidavit.”
ISSUE: Is the argument of Pring
correct?
HELD: NO. Hearing means, you
have the opportunity to read what he
will say and the opportunity to object.
Yan ang ibig sabihin ng hearing. Hindi
kailangan na he will be questioned
personally in court. That satisfies the
requirement of hearing.
“Hence, in resolving the issue in
this petition, the proper question we
should address is: Was there a failure
to observe the spirit and intent of
Section 17, Rule 119 in the case at bar?
We rule in the NEGATIVE. The
prosecution has submitted the sworn
statement of accused Nonilo Arile and
its evidence showing that the
conditions for discharge have been
met. Neither can it be denied that the
defense was able to oppose the motion
to discharge Nonilo Arile. With both
litigants able to present their side, the
lack of actual hearing was not fatal
enough to undermine the court's
ability to determine whether the
conditions prescribed under Section
17, Rule 119 were satisfied.”
So there is already substantial compliance
with the hearing. And that was the first case
interpreting this new provision after the 1985
Rules. But for the merits, later na-acquit man si
Pring ba which is a different issue. Yung dito,
discharge lang ang issue eh. On the merits, he was
acquitted. But after one year from his acquittal,
pinatay naman siya ng ABB. Sabi nila (ABB),
kung nakaligtas ka sa court, sa amin hindi ka
makaligtas. That’s what happened there.
Q: Normally, when is an accused discharged?
A: He is discharged before he testifies. You
will use him. That’s why he is going to be
discharged. However, in the 1992 case of
ROSALES vs. COURT OF
APPEALS
215 SCRA 102
FACTS: The prosecution wants to
use an accused as a witness and he
was willing. Sabi ng prosecution, “We
will file a motion to discharge you to
be state witness.” The accused said,
“Hwag! Hwag!.. if you will do that
patay ako! Patayin talaga nila ako.
They will not allow me to testify.” But
still the prosecution used him. He took
a stand and he pointed to all his
companions. So he testified first bago
nag-file ng motion to discharge ang
prosecution.
ISSUE: Is that correct? Can the
testimony come ahead before the
discharge?
HELD: YES because of the peculiar
fact – his life is in danger eh. Anyway
according to the law, should the
discharge be made, is should be made
by the prosecution before resting its
case (Section 17). In the case at bar, at
that moment, the prosecution has not
rested its case. So puwede.
“While it is the usual practice of
the prosecution to present the accused
who turns state witness only after his
discharge, the trial court may
nevertheless sanction his discharge
after his testimony if circumstances so
warrant. In the case before Us, the
imminent risk to his life justified the
deviation from the normal course of
procedure as a measure to protect him
while at the same time ensuring his
undaunted cooperation with the
prosecution. Indeed, as is explicit from
the Rule, as long as the motion for
discharge of an accused to be utilized
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 147
as a state witness is filed before the
prosecution rests, the trial court
should, if warranted, grant it.”
Q: What happens if an accused who is the
most guilty is erroneously discharged – ang mga
naiwan, yung mga pipitsugin? Is the erroneous
discharge valid? Is he deemed acquitted?
A: The SC said YES. Even if there is a mistake,
he is now acquitted once he is discharged. His
testimony is admissible. In the case of
BOGO-MEDELLIN CO. vs.
JUDGE PEDRO SON
209 SCRA 329 (May 27, 1992)
HELD: “Any witting or unwitting
error of the prosecution in asking for
the discharge of an accused and of
the trial court in granting the petition
for discharge, so long as no question
of jurisdiction is involved, would not
deprive the discharged accused of the
acquittal that is specified in Section 10
of Rule 119 and of the constitutional
guarantee against double jeopardy. It
is also relevant to note that the
improper or mistaken discharge of an
accused would not affect his
competency as a witness or render
inadmissible his testimony.”
Q: Let’s go back to Evidence. He is the most
guilty. His discharge was wrong. Is his testimony
admissible?
A: YES, because he can perceive and
perceiving and he can make known his
perception to others. That is the only
qualification. There is no violation of marital
disqualification or attorney-client confidentiality,
etc. Wala man! So you go back to Evidence. The
testimony of the witness is qualified although it
might be polluted and he did it to save his game –
that is not enough to make his testimony
inadmissible.
Q: One thing more, who can discharge the
witness?
A: The court where the very case is pending.
That’s the rule – the court where the case is
pending.
BAR QUESTION: What happens when an
accused is discharged, and after he is discharged,
sabi ng prosecution, “Teka muna nagkamali ako, di
pala kita kailangan. Balik ka!” Can it be done?
A: Sabi ng SC, NO, acquitted na yan! The only
reason for him to come back is, he is asked to
testify pero ayaw niya. Prosecution: “But I don’t
need him.” SC: that is your fault because first, why
did you ask for his discharge? So once he is
discharged, he is deemed acquitted whether you
use him or do not use him. The only way for him
to come back is, you want to use him but he does
not want to testify because he is double-crossing
the Government.
Lets go further. There is another law, about
this witness. You try to compare this principle
with the provision of RA 6981 – The Witness
Protection Act. Under RA 6981, the fiscal would
not even include you in the charge anymore, for
as long as the DOJ will say that he is qualified, he
is covered by the Witness Protection Program.
Under the law, the fiscal should not include him
anymore.
Unlike in criminal procedure kailangan isali
ka muna bago ka i-discharge. Sa RA 6981 naman,
hindi ka na kasali. That is why the
constitutionality of the law was challenged in the
case of
WEBB vs. DE LEON
August 23, 1995
FACTS: State witness Alfaro
admitted that she was with them. She
admitted kasama siyang nagpunta sa
bahay ng mga Vizconde. And then she
was placed in the Witness Protection
Program and was used against Hubert
Webb. And according to Webb, the
provision of the Witness Protection
Act – which authorizes the DOJ to
place somebody in the Witness
Protection Program, and once he
certifies that she is covered, the fiscal
is no longer allowed to file a case
against her (state witness) – is
violative of the judicial prerogative to
discharge a witness because you
jumping the gun on the court.
According to Webb, it should be
the court that will discharge and not
the DOJ. The law is not valid because
it is an encroachment of a judicial
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 148
prerogative. It is an intrusion for it is
only the court which has the power
under the rules on criminal procedure
to discharge an accused as state
witness.
ISSUE #1: Is Webb’s argument
valid?
HELD: “Webb’s argument lacks
appeal for it lies on the faulty
assumption that the decision whom to
prosecute is a judicial function, the
sole prerogative of courts and beyond
executive and legislative interference.
In truth, the prosecution of crimes
appertains to the executive
department of government whose
principal power and responsibility is
to see that our laws are faithfully
executed. A necessary component of
this power to execute our laws is the
right to prosecute their violators. The
right to prosecute vests the prosecutor
with a wide range of discretion — the
discretion of whether, what and whom
to charge, the exercise of which
depends on a smorgasbord of factors
which are best appreciated by
prosecutors. We thus hold that it is not
constitutionally impermissible for
Congress to enact R.A. No. 6981
vesting in the Department of Justice
the power to determine who can
qualify as a witness in the program
and who shall be granted immunity
from prosecution.”
ISSUE #2: How do you reconcile
this ruling with the rule that only the
court has the power to discharge?
HELD: Simple! In the Witness
Protection Program, the accused is
NOT even accused in any case yet.
Wala pa! But once he is accused, you
need the consent of the court to
discharge, that is kapag kasali na! Pero
kung hindi pa kasali, there is no need
for the court’s consent to decide
because that is an executive function.
ISSUE #3: And why is the court’s
consent necessary once the accused is
charged in court?
HELD: This is because the court
has already acquired jurisdiction over
the person of the accused. So the SC
said, “Section 17 of Rule 119 does not
support the proposition that the
power to choose who shall be a state
witness is an inherent judicial
prerogative. Under this provision the
court is given the power to discharge
as state witness only because it has
already acquired jurisdiction over the
crime and the accused. The discharge
of an accused is part of the exercise of
jurisdiction but is not a recognition of
an inherent judicial function.”
ISSUE #4: Is it wise for Congress
to enact this law? Why will Congress
enact this kind of law that will
determine that the witness will not be
included in the information?
HELD: YES. It is a wise legislation.
“Moreover, the Rules of Court have
never been interpreted to be beyond
change by legislation designed to
improve the administration of our
justice system. The Witness Protection
Act is one of the much sought penal
reform laws to help government in its
uphill fight against crime, one certain
cause of which is the reticence of
witnesses to testify.”
SEC. 19. When mistake has
been made in charging the
proper offense. – 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
the filing of the proper
information. (11a)
You co-relate Section 19 with the last
paragraph of Section 14, Rule 110:
If it appears at anytime
before judgment that a mistake
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 149
has been made in charging the
proper offense, the court shall
dismiss the original complaint
or information upon the filing
of a new one charging the
proper offense in accordance
with section 19, Rule 119,
provided the accused shall not
be placed in double jeopardy.
The court may require the
witnesses to give bail for
their appearance at the trial.
So the same ‘no? The accused shall be
discharge because of a wrong information upon
filing of the correct one. So Section 14 of Rule 110
and Section 19 of Rule 119 talk of the same thing.
QUESTION: how will you distinguish the
two provisions? Kung tingnan mo mukang
pareho eh. But for academic purposes, there are
differences made by Justice Regalado in the 1994
case of GALVEZ VS. CA (237 SCRA 685) Alam
mo itong si Regalado, siya din ang nag-
distinguish ng amendment and substitution of
information under Rule 110 which was asked in
the bar and thoroughly discussed in the case of
TEEHANKEE VS. MADAYAG. In the case of
Galvez naman, gi-distinguish naman niya ang
Section 14 Rule 110 and Section 19 Rule 119.
Q: Distinguish Section 14 of Rule 110 and
Section 19 of Rule 119.
A: For academic purposes, the following are
the distinctions:
1. Rule 119 is the rule specifically
governing the trial stage; whereas
Rule 110 provides the procedural
governance for the prosecution of
offenses;
2. Rule 119 is more directly and
principally directed to the trial
court to invest it with the requisite
authority to direct by itself the
dismissal and re-filing of the
informations therein
contemplated; whereas
Rule 110 is directed to the prosecutor
who can and should institute
remedial measures for the
dismissal of the original
information and the re-filing of the
correct one, otherwise he would be
recreant to his duties;
3. In Rule 119, evidence is necessarily
being presented, hence the trial
court is now in a better position to
conclude that manifestly the
accused cannot be convicted of the
offense charged or of one that it
necessarily includes; whereas
In Rule 110, since no evidence has
been presented at that stage, the
error would appear or be
discoverable from a review of the
records of the preliminary
investigation; and
4. In Rule 119, the permissible stage for
effecting that substitution is “at any
time before judgment”; whereas
In Rule 110, it is sufficient that “it
appears…that a mistake has been
made in charging the proper
offense…” which situation
contemplates a longer time span,
inclusive of the period from the
filing of the information up to and
before trial.
So after I read the case of Galvez, I said
Regalado has a very sharp mind. Masyadong
matalas and utak ba! A very small distinction,
makita niya eh. And it takes pain to analyze. That
is the product of a sharp mind. But no wonder
because pag-kuha niya ng bar, 96.70% gud ang
average niyan! He is the highest for the record.
Sabi nila si Marcos. Yes, but that is not official.
Istorya lang yun. Si Marcos nag oral examination
before the SC pero binabaan ang average. But on
record, it is Regalado who is the highest in the
bar. Nobody has beaten that. Makita ninyo man
ba sa decisions niya. Masyadong matalas, very
sharp!
SEC. 20. Appointment of
acting prosecutor. – When a
prosecutor, his assistant or
deputy is disqualified to act
due to any of the grounds
stated in section 1 of Rule 137
or for any other reason, the
judge or the prosecutor shall
communicate with the Secretary
of Justice in order that the
latter may appoint an acting
prosecutor. (12a)
SEC. 21. Exclusion of the
public. – The judge may, motu
proprio, exclude the public
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 150
from the courtroom if the
evidence to be produced during
the trial is offensive to
decency or public morals. He
may also, on motion of the
accused, exclude the public
from the trial except court
personnel and the counsel of
the parties. (13a)
Section 21 is an exception to the rule found in
Rule 115 about the right of the accused to a public
trial. There are some exceptions to that right.
And under Section 21:
1. the court may, moto propio, exclude the
public from the courtroom if the evidence
to be produced during the trial is
offensive to decency or public morals.
Normally this applies in trial for the crime
of rape or in crimes against chastity,
where the nature of the evidence is such
that the public may want to go there
because they only want to listen to these
sadiscious details of the testimony. The
public can be excluded. Only the lawyers,
the parties are allowed inside. Yaan!
2. on motion of the accused, the court may
exclude the public. That is his right to
speedy trial. Kung ayaw niya, e di okey
lang!
Aside from the two exceptions, the other
grounds where the public can be excluded, based
on American Jurisprudence are:
1. To prevent disorder;
2. To prevent embarrassment to a
witness;
3. To limit attendance to seating
capacity.
This is the very issue now. I’ve been reading
current newspaper reports that everybody is
anticipating that the case against Erap will be
filed in the Sandiganbayan. The DOJ wants
everything to be televised all over again. They
are filing a petition before the Supreme Court.
There is a standing order of the Supreme Court
prohibiting it. It should not be televised because
of what happened in the Aquino libel case
[Aquino vs. Beltran]. Because of that, ayaw na ng
SC na i-televised. It becomes a sarswela – show
ba! – rather than an a public trial.
Now, they want to justify it on the ground
that this involves public interest so the SC should
relax the rules. I cannot anticipate how the SC
will resolve the matter because everybody has
gotten used to the impeachment trial so
everybody wants to hear what is happening,
especially if the person involved is Erap. Such a
standing memorandum was not applied to the
impeachment trial because it was not a judicial
trial but a political trial. It is the Senate which
controls the rules, not the courts. This is the
difference. But this case is before the
Sandiganbayan which is a different story.
Because definitely many people would like to
go there but how do you get a seat them all in the
Sandiganbayan? You will have to exclude
hundreds, if not thousands and allow only the
entry of a few. But if it is televised, then
everybody can watch again.
SEC. 22. Consolidation of
trials of related offenses. –
Charges for offenses founded on
the same facts or forming part
of a series of offenses of
similar character may be tried
jointly at the discretion of
the court. (14a)
Do not confuse this consolidation here in Rule
119 with the consolidation in Rule 111.
In Rule 111, you are consolidating the
criminal case and the civil case – the civil case
which is brought separately will be consolidated
with the criminal case. Here in Rule 119, you are
consolidating two or more criminal cases which
are identical, founded on the same facts or
forming part of the same series of offense of
similar character. This is similar to consolidation
in Rule 31 on civil cases.
But in civil cases, we can allow related cases
to be filed together eh – joinder of parties, which
is not allowed in criminal cases. The only
practice allowed in criminal cases is
consolidation. But there could be no such thing
as joinder of accused in one information.
Let’s go to Section 23 on Demurrer – one of
the most important provisions in Rule 119.
SEC. 23. Demurrer to
evidence. – After the
prosecution rests its case, the
court may dismiss the action on
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 151

the ground of insufficiency of Now of course, it is now emphasized in

evidence (1) on its own
initiative after giving the paragraph 1 that a demurrer may be filed with or
prosecution the opportunity to without leave of court. Leave of court means before
be heard or (2) upon demurrer your demurrer, you file muna a motion for
to evidence filed by the
accused with or without leave permission to file the demurrer. The court grants
of court. permission, you file the demurrer. You can still
If the court denies the file the demurrer even without the permission of
demurrer to evidence filed with
leave of court, the accused may the court. If you file demurrer with or without
adduce evidence in his defense. leave and it is granted, then you have no problem
When the demurrer to evidence because the accused will be acquitted.
is filed without leave of
court, the accused waives the
right to present evidence and The problem is, if your demurrer is denied.
submits the case for judgment Meaning, the court says that there is sufficient
on the basis of the evidence
for the prosecution. (15a) evidence to prove at least the guilt of the accused.
The motion for leave of If the demurrer was filed with prior leave of court
court to file demurrer to and it is subsequently denied, the accused is
evidence shall specifically
state its grounds and shall be allowed to present evidence to prove his defense.
filed within a non-extendible
period of five (5) days after But if you filed the demurrer without prior
the prosecution rests its case.
The prosecution may oppose the leave of court and the demurrer is denied, then
motion within a non-extendible you are already convicted because the accused
period of five (5) days from
its receipt.
has forfeited his right to present evidence. It is
If leave of court is practically equivalent to a waiver of his right to
granted, the accused shall file present evidence. So conviction automatically
the demurrer to evidence within
a non-extendible period of ten
follows. This is what the rules say.
(10) days from notice. The
prosecution may oppose the What is the rationale behind this? The 1997
demurrer to evidence within a
similar period from its
case of
receipt.
The order denying the motion PEOPLE vs. TURINGAN
for leave of court to file
demurrer to evidence or the
282 SCRA 424
demurrer itself shall not be
reviewable by appeal or by HELD: “The rationale for the
certiorari before judgment. (n)
rule is that when the accused
moves for dismissal on the ground
Demurrer is a motion to dismiss. After the
of insufficiency of the prosecution
prosecution has rested its case, based on the order
evidence, he does so in the belief
of trial, the accused now presents his case. But
that said evidence is insufficient to
sabi ng accused, “Well, I will present evidence on
convict and, therefore, any need
the assumption that the prosecution has proven
for him to present any evidence is
prima facie the crime and my guilt. [meaning the
negated. It is said that an accused
presumption of innocence has already been
cannot be allowed to wager on the
disputively rebutted ba!].” But suppose the
outcome of judicial proceedings by
prosecution has not proven the facts or not
espousing inconsistent viewpoints
proven the crime or my guilt, “why will I present
whenever dictated by convenience.
evidence? Why will I prove my innocence when
The purpose behind the rule is also
I’m still presumed innocent?” Yaan! Yan ang
to avoid the dilatory practice of
demurrer. The same thing in civil cases – why
filing motions for dismissal as a
will you prove your defense when the plaintiff
demurrer to the evidence of the
failed to prove his cause of action? So instead of
prosecution and, after denial
presenting evidence, he will file a demurrer.
thereof, the defense would then
Actually it’s a motion to dismiss.
claim the right to present its
evidence.”
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 152
So, there is an inconsistency in saying that the
prosecution’s evidence is not sufficient, and yet
when it is denied, “OK, I will present evidence.”
Ahh di puwede yan! And many defense counsels
in the past have filed demurrer just to delay the
presentation of evidence when there is no chance
for said demurrer to be granted.
BERNARDO vs. COURT OF
APPEALS
278 SCRA 782
HELD: “The power to grant leave
to the accused to file a demurrer is
addressed to the sound discretion of
the trial court. The purpose is to
determine whether the accused in
filing his demurrer is merely stalling
the proceedings. [Is he really serious
or is only delaying the proceedings?]
Judicial action to grant prior leave to
file demurrer to evidence is
discretionary upon the trial court. But
to allow the accused to present
evidence after he was denied prior
leave to file demurrer is not
discretionary.”[Meaning, when you
file a demurrer without prior leave,
you assume the risk eh because once
your demurrer is denied, you no
longer have a chance to present
evidence.]
“Once prior leave is denied and
the accused still files his demurrer to
evidence or motion to dismiss, the
court no longer has discretion to allow
the accused to present evidence. The
only recourse left for the court is to
decide the case on the basis of the
evidence presented by the
prosecution. And, unless there is grave
abuse thereof amounting to lack or
excess of jurisdiction, the trial court's
denial of prior leave to file demurrer
to evidence or motion to dismiss may
not be disturbed. However, any
judgment of conviction by a trial court
may still be elevated by the accused to
the appellate court.” [You cannot
question the order of denial of prior
leave, this is discretionary but you can
appeal the judgment of conviction
itself.]
BAR QUESTION: How do you distinguish
the rule on demurrer of evidence in civil cases
with the rule of demurrer in criminal cases?
A: The following are the distinctions:
1. In civil cases when the demurrer is
denied, the defendant will now
present his evidence to prove his
defense because the defendant
does not waive his right to present
in the event the demurrer is
denied; whereas
In criminal cases, if the demurrer of the
accused is denied the accused is no
longer allowed to present evidence
if he had no prior leave;
2. In civil cases, if the defendant’s
demurrer is granted and the case is
dismissed and the plaintiff appeals
to the appellate court and on
appeal the court reverses the order
of dismissal, the appellate court
renders judgment immediately
against the defendant. Goodbye! –
talo na ang defendant. There is no
more remanding; whereas
In criminal cases, if the demurrer is
granted, there is no more appeal
by the prosecution because the
accused has already been
acquitted. Otherwise, there will be
a case of double jeopardy;
3. In civil cases, the court cannot on its
own initiative, dismiss the case
after the plaintiff rests without any
demurrer by the defendant. There
is no such thing as motu propio
demurrer; whereas
In criminal cases, the court may
dismiss the action on its own
initiative after giving the
prosecution the chance to present
its evidence.
Demurrer used to composed only of two
paragraphs. Under the new rules, there are three
(3) new additional paragraphs. The additional
provisions are:
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 153
The motion for leave of
court to file demurrer to
evidence shall specifically
state its grounds and shall be
filed within a non-extendible
period of five (5) days after
the prosecution rests its case.
The prosecution may oppose the
motion within a non-extendible
period of five (5) days from
its receipt.
If leave of court is
granted, the accused shall file
the demurrer to evidence within
a non-extendible period of ten
(10) days from notice. The
prosecution may oppose the
demurrer to evidence within a
similar period from its
receipt.
The order denying the motion
for leave of court to file
demurrer to evidence or the
demurrer itself shall not be
reviewable by appeal or by
certiorari before judgment. (n)
These deadlines were not found before. If
you want to file leave, pag-rest, 5 days lang, you
file a motion for leave. The prosecution may
oppose the leave of within 5 days. After the court
grants leave, you file the demurrer within 10 days
lang. The obvious purpose here is not to delay the
trial.
When the court denies the motion for leave or
the demurrer itself, as a rule, it is not reviewable.
You cannot review it. The remedy is to go to trial
and if you are convicted, appeal on the judgment
of conviction. But as a general rule, when a
demurrer is denied, you cannot go on certiorari.
I’m not saying that this is 100% but there are
some instances when the court, based on equity,
allows it.
Take note that when you file a leave of court
to file a demurrer, the accused must specifically
state the grounds.
The 1985 Rules just says you get prior leave.
This is what I noticed here among trial courts:
after the prosecution rests, sometimes the defense
counsel will say, “Your honor, we will file a
demurrer. May we ask for leave of court to file the
demurrer?” And I noticed that the courts will say
“Alright, leave granted, file your demurrer.” Parang
naging automatic ba! Pag-hingi mo ng leave,
bigay kaagad!
I was watching that and I do not seem to
agree with that kind of set-up and I had the
opportunity once in a criminal case where I was
the private prosecutor where after we rested, the
defense, in open court said, “Your honor, we
would like to ask permission for demurrer.” And
the court said, “Granted!”. I said “Your honor,
this is not the correct procedure because he
doesn’t even say what are his grounds for
demurrer. The court should not grant the
permission immediately without those grounds.”
To my mind, when you file a motion for leave,
you must state the grounds to give the court a
synopsis or an idea of what you are going to raise
so that the court will be attracted to grant. The
reason behind this leave is to put a stop to the old
practice. The old practice was of granting
demurrer immediately and in most cases the
demurrer is really without merit. This is why this
was placed in the Rules of Court so that the court
will weigh whether “ano ba? Pagbigyan ko ba ito
o hindi?” Otherwise, we would be going back to
the old system.
And the judge told me, “Your arguments are
sound, but the trouble is there is nothing in the
rules which support you so, we’ll just grant
leave.” Wala din. Of course, there was a leave,
there was a demurrer, and I opposed and it was
denied. But ang issue ko, I’ve been harping on
that point for so long. You cannot just say leave,
you must tell the court what you will raise. Give
us an idea so that the court will be convinced to
grant leave. If the court will deny the leave, you
file it at your own risk.
Now, the 2000 Rules states, “The motion for
leave of court to file demurrer to evidence shall
specifically state its grounds.” Hindi na puwede
yung “we intend to file a demurrer, may we ask
for leave” without stating the grounds. At least,
sabi ko, I have been correct all along in
advocating this. So when I read this in the new
rules, I said, “Ay salamat! Tama pala ako all
along!” Once you know the philosophy of the
law, hindi ka man mawala ba! You can always
argue from that point.
SEC. 24. Reopening. – At any
time before finality of the
judgment of conviction, the
judge may, motu proprio or upon
motion, with hearing in either
case, reopen the proceedings to
avoid a miscarriage of justice.
The proceedings shall be
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 154
terminated within thirty (30)
days from the order granting
it. (n)
Section 24 is a new provision. The judge may
motu propio or upon motion reopen the
proceedings.
Actually, reopening of trial is a remedy which
is recognized but not found in the rules. Even the
rules on civil procedure, there are motions for
new trials but you cannot find a rule for the re-
opening of trial. But the SC has always
recognized that there is such a remedy.
EXAMPLE: I will rest my case, the trial is
finished and the next step is the decision. But
after you rest, you have additional evidence
discovered for the first time and therefore could
not have been presented beforehand.
Q: What will you do? Will you file a motion
for new trial based on the newly discovered
evidence?
A: NO, you cannot – wala pang decision!
Motion for new trial based on new evidence is
proper only after a decision has been made and
the same is not yet final and executory.
Q: In the example, wala pang decision eh.
What is the proper remedy?
A: The correct remedy is motion to reopen the
trial because there is no judgment yet.
Q: On what grounds?
A: Justice and equity. This is the only ground
for re-opening because there is no specific
ground.
Q: Now can the court on its own, re-open a
trial, civil or criminal?
A: YES. This has happened several times.
The case has already been submitted for trial, this
happened to me several years ago. The court said
“before the court renders a decision, the court
would like to conduct an ocular inspection and
re-enactment of the alleged crime in the place
where the crime was committed.” Motu propio,
the court ordered the re-enactment. This is an
instance of re-opening the trial. This is allowed
because this is an inherent power of the court, if
it really wants to find out the truth. You cannot
find any provision in the rules regulating that
kind of remedy. This is allowed without any
specific rule except justice and equity.
For the first time, reopening of trial in a
criminal case is now found in Section 24 of the
2000 Rules. But there is something wrong here. In
reopening of trial, you do it before the case is
decided. Dito naman, you do it “at any time before
the finality of the judgment of conviction.” Anong
klase ito?! How can this be? There is already a
judgment of conviction and then, you reopen?? I
think the correct motion is a new trial.
I remember when Galvez was here to lecture
on the Rules on Criminal Procedure. He said that
somebody in the Supreme Court nakialam dito
eh. The original draft was “anytime before judgment
there can be re-opening upon motu propio or motion.”
But when the new rules came out, it said “at any
time before finality of the judgment of conviction.” –
dinagdagan ba! The person who changed it must
have thought the committee had erred but the
change made it even worse. That’s why the
committee wrote a letter to the SC to amend this
mistake.
Now, there are some special laws that are
related to the subject of trial and they are
considered as part and parcel of the criminal
procedure. I am referring to RA 4908, RA 6033,
RA 6034 and RA 6035. RA’s 6033, 6034 and 6035
are also known as the Laurel Laws because the
author of these laws is Senator Laurel in the 70’s.
RA 4908 – AN ACT REQUIRING JUDGES OF
COURTS TO SPEEDILY TRY
CRIMINAL CASES WHEREIN
THE OFFENDED PARTY IS A
PERSON ABOUT TO DEPART
FROM THE PHILIPPINES WITH
NO DEFINITE DATE OF RETURN
RA 6033 – AN ACT REQUIRING COURTS
TO GIVE PREFERENCE TO
CRIMINAL CASES WHERE THE
PARTY OR PARTIES INVOLVE
ARE INDIGENTS
RA 6034 – AN ACT PROVIDING
TRANSPORTATION AND
OTHER ALLOWANCES FOR
INDIGENT LITIGANTS.
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RA 6035 – AN ACT REQUIRING prosecution absolutely failed

to prove the guilt of the
STENOGRAPHERS TO GIVE accused or merely failed to
FREE TRANSCRIPT OF NOTES prove his guilt beyond
TO INDIGENT AND LOW reasonable doubt. In either
case, the judgment shall
INCOME LITIGANTS AND determine if the act or
PROVIDING A PENALTY FOR omission from which the civil
THE VIOLATION THEREOF liability might arise did not
exist. (2a)

So that takes care of Rule 119.

There is something wrong in convicting
somebody without even a clear statement of why
Rule 120 he is guilty. According to the SC, why is it that
JUDGMENT the law requires, especially in criminal cases, the
judge should be careful in rendering a judgment?
Why must it be clearly stated why you are guilty
Q: What is the definition of judgment in under Section 1 & 2. Why is it that under Sections
criminal cases? 1 and 2, the judgment must clearly state why you
A: Section 1: are guilty? In the following cases of

SECTION 1. Judgment; PEOPLE vs. CAYAGO

definition and form. – Judgment
is the adjudication by the
312 SCRA 623 [1999]
court that the accused is
guilty or not guilty of the HELD: “A strict compliance with
offense charged and the
imposition on him of the proper
the mandate of the said provision is
penalty and civil liability, if imperative in the writing of every
any. It must be written in the decision. Otherwise, the rule would
official language, personally
and directly prepared by the
simply a tool for speculations, which
judge and signed by him and this Court will not countenance
shall contain clearly and specifically in criminal cases involving
distinctly a statement of the
facts and the law upon which it
the possible deprivation of human
is based. (1a) life.”

Q: What does it contain? PEOPLE vs. BUGARIN

A: Section 2: 273 SCRA 384 [1997] J. Mendoza

SEC. 2. Contents of the HELD: “The requirement that the

judgment. – If the judgment is
of conviction, it shall state decisions of courts must be in writing
(1) the legal qualification of and that they must set forth clearly
the offense constituted by the and distinctly the facts and the law on
acts committed by the accused
and the aggravating or which they are based serves many
mitigating circumstances which functions. It is intended, among other
attended its commission; (2) things, to inform the parties of the
the participation of the
accused in the offense, whether reason or reasons for the decision so
as principal, accomplice, or that if any of them appeals, he can
accessory after the fact; (3) point out to the appellate court the
the penalty imposed upon the
accused; and (4) the civil findings of facts or the rulings on
liability or damages caused by points of law with which he disagrees.
his wrongful act or omission to More than that, the requirement is an
be recovered from the accused
by the offended party, if there assurance to the parties that, in
is any, unless the enforcement reaching judgment, the judge did so
of the civil liability by a through the processes of legal
separate civil action has been
reserved or waived. reasoning. It is, thus, a safeguard
In case the judgment is of against the impetuosity of the judge,
acquittal, it shall state preventing him from deciding by ipse
whether the evidence of the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 156
dixit [by instinct]. Vouchsafed neither
the sword nor the purse by the
Constitution but nonetheless vested
with the sovereign prerogative of
passing judgment on the life, liberty or
property of his fellowmen, the judge
must ultimately depend on the power
of reason for sustained public
confidence in the justness of his
decision. The decision of the trial court
in this case disrespects the judicial
function.”
In other words, among the three branches of
government, the judiciary is the weakest. It has
no power of the purse or the sword. Purse –
congress holds the budget. Sword – the judiciary
has no army to enforce decisions unlike the
executive where the executive is already the
commander-in-chief of the AFP. So how can the
judiciary command the respect of the people?
There is only one way – the force of its decisions –
that its decisions are well argued and logical.
This is the only way to have the people believe in
the judiciary. If it cannot cope with this, it is an
insult, an attack to judges who do not know how
to write decisions, because this is how the
judiciary earns the respect of the people.
Otherwise, baka wala ng maniwala sa korte. That
is how the SC explained that idea in the case of
Bugarin.
One interesting case in relation to Section 2
which dealt with the double jeopardy rule was
the case of
ABAY, SR. vs. GARCIA
162 SCRA 665
FACTS: On the day of trial, the
accused was there with his lawyer.
The offended party was not in court.
The judge asked the fiscal what action
he wanted to proceed with. The fiscal
said, “We will look at the records, whether
the offended party were properly
informed.” Finding that the offended
party was properly informed, the
fiscal said [oral motion], “In that case
your honor, we are moving for the
dismissal of the criminal case for lack of
evidence now upon us – wala ang offended
party eh.” The judge dictated in open
court, “Alright, the case is dismissed for
failure to prosecute.” With that, the
accused went home happy.
After the accused left and shortly
thereafter, the offended party arrived
with his lawyer. After they learned of
the dismissal they explained that they
had to travel far, had a flat tire and got
caught in traffic. The judge found their
earlier non-appearance as justified and
ordered the revocation or
reconsidered the earlier decision of
dismissal, consequently resetting the
trial.
The accused learned of the
succeeding events and protested that
this was a case of double jeopardy. He
contends that all the necessary
elements of double jeopardy are
present: valid complaint, valid
information filed in a competent court;
had an arraignment; and the case was
dismissed without his express consent.
HELD: The order of dismissal was
equivalent to an acquittal but a
judgment of acquittal under Rule 120
must be in writing. The order
dismissing the case was not in writing
but was dictated in open court. It was
never reduced into writing. What was
reduced to writing was the second
order which revoked the first order.
Since it was never in writing, there
was no judgment of acquittal.
Therefore, there is no double jeopardy.
“However, this order of dismissal
must be written in the official
language, personally and directly
prepared by the judge and signed by
him conformably with the provisions
of Rule 120, section 2 of the Rules of
Court. In the instant case, it is very
clear that the order was merely
dictated in open court by the trial
judge. There is now showing that this
verbal order of dismissal was ever
reduced to writing and duly signed by
him. Thus, it did not yet attain the
effect of a judgment of acquittal, so
that it was still within the powers of
the judge to set it aside and enter
another order, now in writing and
duly signed by him, reinstating the
case.”
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This is how the Supreme Court skirted the
double jeopardy rule by applying Rule 120,
Sections 1 and 2.
The 2nd paragraph of Section 2 is new and it
radically changed the language of the previous
rule. Section 2, second paragraph:
In case the judgment is of
acquittal, it shall state
whether the evidence of the
prosecution absolutely failed
to prove the guilt of the
accused or merely failed to
prove his guilt beyond
reasonable doubt. In either
case, the judgment shall
determine if the act or
omission from which the civil
liability might arise did not
exist. (2a)
This is just a repetition of Rule 111, Section 2
[last paragraph] when the judgment acquits the
accused, the judgment should state whether the
evidence of the prosecution absolutely failed to
prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In
either case, the judgment shall determine if the
act or omission from which the civil liability
might arise does not exist. Because generally if
you are acquitted on reasonable doubt, it will not
bar the filing of a separate civil action. But if the
fact from which the civil liability might arise does
not exist, then the acquittal is already a bar to a
future civil liability.
Compare this with the language of the 1985
Rules, Rule 120, Section 2, last paragraph:
In case of acquittal, unless
there is a clear showing that
the act from which the civil
liability might arise did not
exist, the judgment shall make
a finding on the civil
liability of the accused in
favor of the offended party.
According to the 1985 Rules, if the accused is
acquitted based on reasonable doubt, the court
may order the accused to satisfy civil liability
because the cause of action in the civil case is
already proven although the accused is acquitted.
It is possible for the accused to be acquitted and
yet is found to be civilly liable based on the 85
Rules.
The rule under the 1985 Rules was taken from
decided cases such as the case of METROBANK
VS. CA (188 SCRA 259). In this case, the accused
was charged with estafa. After trial, the court
said that there was no estafa. It is only a simple
loan – so there is no crime. Normally, the next
step is to let the offended party file a civil case to
demand payment of the loan. But in the case of
Metrobank, the SC said that it is a double effort.
The Supreme Court said, “While it is true that
petitioner Metrobank can no longer collect
private respondent's civil liability on the basis of
the criminal case filed, it could nonetheless collect
the said civil liability prayed for on the basis of
the non-payment of the loan contracted by
respondent spouses from the bank. There appear
to be no sound reasons to require a separate civil
action to still be filed considering that the facts to
be proved in the civil case have already been
established in the criminal proceedings where the
accused was acquitted. To require a separate civil
action simply because the accused was acquitted
would mean needless clogging of court dockets
and unnecessary duplication of litigation with all
its attendant loss of time, effort, and money on
the part of all concerned.” This was the 1985
Rules.
Q: Now, is that rule still valid under the 2000
Rules?
A: The new rule is silent. There is nothing
here that says that the accused may be acquitted
but found civilly liable unlike the 1985 Rules. It
only says that in case of acquittal, the judgment
should state whether the acquittal is based merely
on reasonable doubt or the prosecution
absolutely failed to prove the guilt of the accused.
In either case, the judgment shall determine if the
act or omission from which the civil liability
might arise does not exist. But as it is worded
now, it would seem, you should file a separate
civil case. And the practice of holding the
accused liable civilly in a criminal case where he
is acquitted, seems to be no longer possible.
Under the new rules, just acquit – let him file
a separate civil case. The old rule is simplier: No
need! Dun na mismo sa criminal case – acquit
him but make him civilly liable. But now, the
language is different. It is a radical departure
from the 1985 rules.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 158

SEC. 3. Judgment for two or
more offenses. – When two or
more offenses are charged in a
single complaint or information
but the accused fails to object
to it before trial, the court
may convict him of as many
offenses as are charged and
proved, and impose on him the
penalty for each offense,
setting out separately the
findings of fact and law in
each offense. (3a)
Let’s go back to Rule 110 on duplicitous
complaint or information. Under Section 3 of Rule
110, this is defined as a complaint or information
which charges more than one offense. This is not
allowed. And the remedy here is you file a
Motion to Quash under Section 3 [f], Rule 117.
A: If YES, then apply Section 4. You convict the
accused of the offense proved which is included
in the offense charged, or of the offense charged
which is included in the offense proved.
Q: What if kung malayong-malayo? The crime
proved is different from the crime charged like
for example: The crime charged is homicide and
what is proved is robbery. What will happen?
Will you apply Section 14 of Rule 110 on
substitution of information?
A: No, you will not apply Rule 110 Section 14
because we are already through with that stage.
We are now in the trial stage where the crime
proved is different from the crime charged.
Therefore, the proper remedy here is Section 19 of
Rule 119, last paragraph:

But the defect is waivable because if you do RULE 119, SEC. 19. When
not file a Motion to Quash, the trial can proceed mistake has been made in
charging the proper offense. –
and if you are found guilty for committing 2 or When it becomes manifest at any
more crimes, then there will be 2 or more time before judgment that a
penalties. Under Section 3, the court may convict mistake has been made in
charging the proper offense and
the accused of as many offenses as are charged the accused cannot be convicted
and proved and impose on him the penalty for of the offense charged or any
each offense if the accused fails to object the other offense necessarily
included therein, the accused
duplicitous complaint before the trial. shall not be discharged if
there appears good cause to
detain him. In such case, the
SEC. 4. Judgment in case of court shall commit the accused
variance between allegation and to answer for the proper
proof. – When there is variance offense and dismiss the
between the offense charged in original case upon the filing
the complaint or information of the proper information.
and that proved, and the (11a)
offense as charged is included
in or necessarily includes the [Editor: Try to correlate this with Section 14, Rule
offense proved, the accused
110. They are similar. But for clearer understanding,
shall be convicted of the
offense proved which is please go back to Section 19, Rule 119 in the case of
included in the offense GALVEZ on the distinctions between these two
charged, or of the offense provisions. Thanks!]
charged which is included in
the offense proved. (4a) SEC. 5. When an offense
includes or is included in
another. – An offense charged
We will go to this basic principle: necessarily includes the
offense proved when some of the
essential elements or
Mr. Calizo is charged in an information of ingredients of the former, as
committing one crime. However, during the trial, alleged in the complaint or
information, constitute the
what was proven is another crime. What will latter. And an offense charged
happen now? Well, we will have to ask this is necessarily included in the
question – offense proved, when the
essential ingredients of the
former constitute or form part
Q: Is the offense proven included in the offense of those constituting the
charged or does the offense proven includes the latter. (5a)
offense charged?
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 159
Q: When does an offense include another, or
when is it included in the other?
A: Section 5, Rule 120.
For example, Mr. Tiamzon is charged with
MURDER and what is established is HOMICIDE.
Homicide is included in the crime of murder. The
elements are identical. The only difference is that
there are no qualifying circumstances in
homicide. Or, THEFT is included in ROBBERY.
The only missing element in theft is violence or
intimidation. Or, LESS PHYSICAL INJURY is
included in SERIOUS PHYSICAL INJURY.
In that case, the case will not be dismissed. Just
convict the accused of the crime proven which is
included in the crime charged. Such that if you
are charged with murder, you can be convicted
for homicide.
Q: Suppose the accused is charged with
homicide and what was proven is murder. So it is
the other way around. What is the correct
procedure?
A: Convict him for the crime charged. Do not
dismiss the case. Although the crime proved
(murder) includes that which is charged
(homicide), a person cannot be convicted of a
more serious offense than that charged. The
accused can only be convicted for homicide and
the qualifying circumstances of murder should be
treated only as an ordinary aggravating
circumstances. The same is true with theft and
robbery. [c.f. discussions on Section 8, Rule 110]
We will now go to some important cases.
VINO vs. PEOPLE OF THE
PHILIPPINES
178 SCRA 626
FACTS: Mr. Acelar is accused of
murder as principal by direct
participation. After trial, it was
established that Mr. Acelar is only an
accessory.
ISSUE: Can a person accused of
murder as a principal may be
convicted as an accessory?
HELD: YES, a person charged with
an offense as principal maybe
convicted as an accessory because the
greater responsibility includes the
lesser responsibility. Accessory is a
lesser degree of participation.
This is not a case of a variance
between the offense charged and the
offense proved. Here, the accused was
charged with murder and what was
established by evidence was also
murder. There is here no mistake in
charging the proper offense. The
variance is in the participation of the
accused in the commission of the
crime which is not covered by any
specific provision. What is covered by
the rules is when there is a mistake in
charging the proper offense, or when
there is a total mistake because the
crime was never committed.
Q: What is the difference between
malversation and technical malversation?
A: Although both crimes are committed by
public officers, malversation is punishable under
Article 217 of the RPC, whereas, technical
malversation is not referred as such in the RPC.
Technical malversation is denominated as Illegal
Use of Public Funds under Article 220 of the RPC.
EXAMPLE: Technical malversation/Illegal
Use of Public Fund is when a public officer uses
funds appropriated for a certain public purpose
(let’s say, for the construction of a school
building) for another public purpose (like
widening or cementing of roads.)
PARUNGAO vs.
SANDIGANBAYAN
197 SCRA 173
FACTS: A public officer was
charged with technical malversation of
public funds or property. The trial
court found that the crime committed
is not technical malversation. It is
more of malversation.
ISSUE: May a person, charged
with technical malversation under
Article 220 of the RPC, be found guilty
of malversation under Article 217?
HELD: NO. He cannot be convicted
of malversation because there is no
similarity between these two crimes.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 160
“In malversation of public funds, the
offender misappropriates public funds
for his own personal use or allows any
other person to take such public funds
for the latter's personal use. In
technical malversation, the public
officer applies public funds under his
administration not for his or another’s
personal use, but to a public use other
than that for which the fund was
appropriated by law or ordinance.”
“Technical malversation is,
therefore, not included in nor does it
necessarily include the crime of
malversation of public funds charged
in the information.”
“The Sandiganbayan therefore
erred in not ordering the filing of the
proper information against the
petitioner, and in convicting him of
technical malversation in the original
case for malversation of public funds.
Ordinarily, the court’s recourse would
be to acquit the petitioner of the crime
of illegal use of public funds without
prejudice, but subject to the laws on
prescription, to the filing of a new
information for such offense.”
“Considering however that all the
evidence given during the trial in the
malversation case is the same evidence
that will be presented and evaluated
to determine his guilt or innocence in
the technical malversation case in the
event that one is filed and in order to
spare the petitioner from the rigors
and harshness compounded by
another trial, not to mention the
unnecessary burden on our
overloaded judicial system, the Court
is acquitted the accused of the crime of
illegal use of public funds.”
But Justice Feliciano dissented, “Why question
the procedure used for violation the law?” Anong
klaseng decision ito? Even before filing the
correct information, the SC already ruled that you
are innocent? According to him, the correct
procedure is not to dismiss both cases but to
acquit the accused of the original complaint of
technical malversation and require the filing of a
new information charging the proper offense
(malversation). So this is one of the rare cases
where the SC decided not to be very technical
and went straight to the decision. Siguro the SC
would like to save time.
Q: If a person is charged with rape, can he be
convicted of qualified seduction? Is qualified
seduction included in rape?
A: It seems that the elements are different. In
rape, there is no consent in the sexual intercourse.
But in seduction, there is consent although there
is abuse of authority, relationship or there is
deceit. But in the 1993 case of
PEOPLE vs. SUBING-SUBING
228 SCRA 168
HELD: “A person charged with
rape can be convicted of qualified
seduction if the latter though not
alleged in the complaint, appears in
the victim’s affidavit.”
It seems that there is something wrong here;
the complaint says rape, but the victim’s affidavit
says qualified seduction. However the SC says it
is fine. It is tantamount to the same thing: not
found in the complaint but found in the victim’s
affidavit. This is another queer decision of the SC.
PECHO vs. SANDIGANBAYAN
238 SCRA 116
FACTS: There was somebody who
imported highly taxable items.
Obviously, he had some connections
with the Bureau of Customs. He
declared his items different form
which he brought, so the taxes are less.
The obvious intention it to cheat the
government of the correct amount of
taxes. He prepared the import entry
declaring false information or entries.
However, the Collector of Customs
ordered a spot inspection. So the
attempt did not succeed.
The importer, together with the
Customs people were charged with
attempted violation of the Anti-Graft
Act. So, there was an attempt to cause
undue injury to the government by
depriving it of its proper taxes.
ISSUE: Can a person charged with
a crime punishable under a special law
be found guilty instead of a felony in
the RPC? Can a crime under the RPC
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 161

be considered as included in the crime controls is not the designation but the
under a special law? description of the offense charged. The
crime of robbery with homicide is
HELD: There is no such thing as clearly alleged in the information
attempted violation of the Anti-Graft notwithstanding its erroneous caption.
Act. The attempted, frustrated and It is an offense necessarily included in
consummated stages only apply to that with which they were charged.”
felonies in the RPC. Under crimes
punishable by a special law, you only
punish the consummated stage. You SEC. 6. Promulgation of
judgment.– The judgment is
do not punish the attempted and promulgated by reading it in
frustrated stages unless the special law the presence of the accused and
says so. Since there was no injury any judge of the court in which
it was rendered. However, if
caused to the government due to the the conviction is for a light
time discovery, there was no violation offense, the judgment may be
of the Anti-Graft Act. pronounced in the presence of
his counsel or representative.
However, they made false entries, When the judge is absent or
thereby committing falsification. outside the province or city,
Therefore, they can be convicted of the judgment may be promulgated
by the clerk of court.
falsification of public or commercial If the accused is confined
documents. or detained in another province
or city, the judgment may be
promulgated by the executive
So in this case, it started as attempted violation judge of the Regional Trial
of the Anti-Graft Act (special law) and ended up Court having jurisdiction over
as a conviction for falsification under the RPC. A the place of confinement or
detention upon request of the
crime under the RPC was considered as included court which rendered the
in the crime malum prohibitum judgment. The court
promulgating the judgment shall
have authority to accept the
PEOPLE vs. VERZOSA notice of appeal and to approve
294 SCRA 466 [1998] the bail bond pending appeal;
provided, that if the decision
of the trial court convicting
FACTS: Appellants were charged the accused changed the nature
for violating PD 532 – Anti-Piracy And of the offense from non-
Anti-Highway Robbery Law Of 1974. bailable to bailable, the
application for bail can only
be filed and resolved by the
ISSUE: Can a person charged for appellate court.
The proper clerk of court
violating a special law be found guilty
shall give notice to the
for a crime of robbery with homicide accused personally or through
under the RPC? his bondsman or warden and
counsel, requiring him to be
present at the promulgation of
HELD: YES. What appellants the decision. If the accused
committed is the crime of robbery was tried in absentia because
he jumped bail or escaped from
with homicide, which is distinct from prison, the notice to him shall
the offense covered by P.D. 532 which be served at his last known
punishes, among others, address.
In case the accused fails to
indiscriminate highway robbery. appear at the scheduled date of
“Nonetheless, the designation of promulgation of judgment
the crime in the information as despite notice, the
promulgation shall be made by
“highway robbery with homicide recording the judgment in the
(Violation of PD 532)” does not criminal docket and serving him
preclude conviction of the appellants a copy thereof at his last
known address or thru his
of the crime of robbery with homicide counsel.
(Article 294 [1] of the RPC). In the If the judgment is for
interpretation of an information, what conviction and the failure of
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 162
the accused to appear was
without justifiable cause, he
shall lose the remedies
available in these rules
against the judgment and the
court shall order his arrest.
Within fifteen (15) days from
promulgation of judgment,
however, the accused may
surrender and file a motion for
leave of court to avail of
these remedies. He shall state
the reasons for his absence at
the scheduled promulgation and
if he proves that his absence
was for a justifiable cause, he
shall be allowed to avail of
said remedies within fifteen
(15) days from notice. (6a)
Alright. Promulgation is where the accused is
parusahan na or acquitted. It consists of the
reading of the decision in the presence of the
accused. This is one stage of the criminal
proceeding where the presence of the accused is
generally required. The other instance is during
the arraignment.
It is not necessary that the promulgation be
made before the very same judge who rendered
the decision. Example: The RTC of Davao has
many branches. Suppose the promulgation will
be made in the RTC Branch 8, but on the date of
promulgation, the judge thereof got sick.
Q: Can the decision of RTC Branch 8 be
promulgated before the judge of RTC Branch 9?
A: YES, a decision rendered by one branch of a
court may be promulgated before another branch
of the same court precisely because it is the same
court although of different branches. Section 6,
reads: “The judgment is promulgated xxx in the
presence of xxx ANY JUDGE of the court in which it
was rendered.”
Do not confuse this on what happened in the
1993 case of
PEOPLE vs. CFI OF QUEZON
BRANCH 10
227 SCRA 457
FACTS: Accused was charged
criminally in the RTC Branch 10
presided by Judge A who tried the
case but retired without deciding the
case. Meanwhile, Judge B, presiding
judge of Branch 3 was designated
temporarily to take over Branch 10
and among the cases submitted to him
for decision was the undecided case of
the accused. So, he read the records
and he wrote the decision on May 22.
On June 9, Judge C was appointed
presiding judge of Branch 10. He took
his oath of office the following day,
June 10, terminating automatically the
designation of Judge B. With the
appointment of Judge C, Judge B was
only left with his original sala –
Branch 3. On June 20, the deputy clerk
of court promulgated the decision of
Judge B made on May 22.
ISSUE: Was the judgment penned
by Judge B, detailed to the vacant
branch of the court, but promulgated
after the permanent judge has been
duly appointed to the vacancy, valid?
HELD: YES. It is valid. Judge B did
not retire. He is still in the SAME court
although in another branch.
“It is not necessary that Judge B be
the presiding judge of Branch 10 at the
time his decision was promulgated
since even after the expiration of his
temporary designation at Branch 10 he
continued to be an incumbent of
Branch 3. After all, the RTC is divided
into several branches, each of the
branches is not a court distinct and
separate from the others. Jurisdiction
is vested in the court, not in the
judges, so that when a complaint or
information is filed before one branch
or judge, jurisdiction does not attach
to said branch of the judge alone, to
the exclusion of the others.”
“Indeed, it would have been
different altogether if the judge whose
decision was promulgated had, prior
to its promulgation, died, resigned,
retired, been dismissed, promoted to a
higher court, or appointed to another
office with inconsistent functions.
Then, he would no longer be an
incumbent member of a court of equal
jurisdiction, and his decisions written
thereafter would be invalid.”
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 163
Q: In places where there is only one branch of
the RTC, no other sala, who promulgates the
decision in case of the absence of the judge?
A: The clerk of court. Under Section 6, “When
the judge is absent or outside the province or city, the
judgment may be promulgated by the CLERK OF
COURT.”
Q: Suppose the accused has several cases in
different places. Like for example he has a case in
Davao and another in Cebu. After the trial in
Davao, he was sent to Cebu for another trial. In
the meantime, tapos na yung sa Davao,
promulgation na lang, but the accused is in Cebu.
What will happen if there will be a promulgation
in the Davao case?
A: Under Section 6, the Davao court will send
the decision to the RTC Executive Judge of Cebu
and let it be promulgated there in the presence of
the accused.
Now, a new clause is inserted in Section 6
which provides that “if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the application for
bail can only be filed and resolved by the appellate
court.” So in the previous example, if the accused
is charged (in Davao) of murder but later
convicted for homicide, the RTC Executive Judge
of Cebu has no power to entertain any
application for bail if the accused wanted to
appeal the conviction. Such application can only
be filed and resolved by the appellate court. This
is similar to Section 5 of Rule 114 on Bail –
x x x x However, if the
decision of the trial court
convicting the accused changed
the nature of the offense from
non-bailable to bailable, the
application for bail can only
be filed with and resolved by
the appellate court.
The above provision was taken and modified
in the case of OMOSA vs. CA (266 SCRA 281
[1997])
Q: Is there such a thing as promulgation by
proxy?
A: YES. A decision may be promulgated even
without the presence of the accused but ONLY if
the conviction is for a light offense. Generally,
promulgation is by personal appearance.
However under the Section 6, “if the conviction is
for a light offense, the judgment may be pronounced in
the presence of his COUNSEL or
REPRESENTATIVE.”
PEOPLE vs. PRADES
July 30, 1998
HELD: “In the Supreme Court and
the Court of Appeals, the judgment is
promulgated by merely filing the
signed copy thereof with the Clerk of
Court who causes true copies of the
same to be served upon the parties,
hence the appearance of the accused is
not even required there as his presence
is necessary only in the promulgation
of the judgments of trial courts.”
Q: Is the presence of the complainant required
during the promulgation?
A: NO. There is no rule requiring a judge to
notify the complainant of the date of
promulgation of judgment in criminal cases.
What the Rules of Court particularly Section 6,
Rule 120 requires is that the promulgation be
made in the presence of the accused. (Ramirez vs.
Macandog, 144 SCRA 462)
Q: Is the presence of the counsel of the
accused required during the promulgation?
A: NO. The Rules of Court does not require
the presence of counsel for the validity of the
promulgation. The accused is not required to be
present at the promulgation if the conviction is
for light offense, in which case, his counsel or
representative may appear in his behalf. But
definitely, in any case, the promulgation is valid
even the counsel does not appear thereat.
(Pangilano vs. Nuevas, 152 SCRA 158)
Q: What happens if the accused was tried in
absentia? Or before the promulgation he escaped
or jumped bail?
A: Under Section 6, the proper clerk of court
shall give notice to the accused personally or
through his bondsman or warden and counsel,
requiring him to be present at the promulgation
of the decision. If the accused was tried in absentia
because he jumped bail or escaped from prison,
the notice to him shall be served at his last known
address.
In case the accused fails to appear at the
scheduled date of promulgation of judgment
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 164
despite notice, the promulgation shall be made by
recording the judgment in the criminal docket
and serving him a copy thereof at his last known
address or through his counsel.
If the judgment is for conviction and the
failure of the accused to appear was without
justifiable cause, he shall lose the remedies
available in these rules against the judgment and
the court shall order his arrest. Within fifteen (15)
days from promulgation of judgment, however,
the accused may surrender and file a motion for
leave of court to avail of these remedies. He shall
state the reasons for his absence at the scheduled
promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to
avail of said remedies within fifteen (15) days
from notice.
So there are six (6) types of promulgation of
judgment under Section 6:
1.) Ordinary judgment - promulgated by
reading it in the presence of the
accused and any judge of the court in
which it was rendered. This applies
only to trial courts (People vs. Prades,
supra);
2.) Promulgation by the Clerk of Court - when
the judge is absent or outside the
province or city;
3.) Promulgation by the Executive Judge - If the
accused is confined or detained in
another province or city, the judgment
may be promulgated by the executive
judge of the Regional Trial Court
having jurisdiction over the place of
confinement or detention upon
request of the court which rendered
the judgment;
4.) Promulgation in absentia - If the accused
was tried in absentia because he
jumped bail or escaped from prison,
the notice to him shall be served at his
last known address;
5.) Promulgation by recording the judgment – in
case the accused fails to appear at the
scheduled date of promulgation of
judgment despite notice.
SEC. 7. Modification of
judgment. – A judgment of
conviction may, upon motion of
the accused, be modified or set
aside before it becomes final
or before appeal is perfected.
Except where the death penalty
is imposed, a judgment becomes
final after the lapse of the
period for perfecting an
appeal, or when the sentence
has been partially or totally
satisfied or served, or when
the accused has waived in
writing his right to appeal, or
has applied for probation. (7a)
Q: May judgement of conviction be modified
or set aside?
A: YES, for as long as:
a. the judgement has not yet become
final, or
b. appeal has not been perfected
Take note that only a judgment of conviction
can be modified. A judgment of acquittal cannot
be modified. It is only upon motion of the
accused.
Q: How about upon motion of the
prosecution?
A: It would seem under the rules, that it is
only the accused who is given that privilege of
moving to modify the judgement and set it aside.
There is an identical provision here that we
have already taken up before – about the
judgment of conviction which may be set aside
before it becomes final. Read Section 5, Rule 116
on Arraignment and Plea:
Withdrawal of improvident
plea of guilty. – At any time
before the judgment of
conviction becomes final, the
court may permit an improvident
plea of guilty to be withdrawn
and be substituted by a plea of
not guilty. (5)
So even if you plead guilty, and it is not a
capital offense and there is now a judgment
sentencing you because of your plea, you can still
change your mind by changing your plea from
guilty to not guilty. But you have to file a motion
to set aside before the judgment of conviction
becomes final.
Q: When does the judgement in a criminal
case become final?
A: It DEPENDS:
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 165
a. If it is a judgement of ACQUITTAL –
immediately executory after
promulgation of judgment because it
cannot be changed anymore.
b. If it is a judgment for CONVICTION:
1. After the lapse of the period for
perfecting an appeal (2nd part of
Section 7). So 15 days generally.
EXCEPT when the DEATH
penalty is imposed. That is now
inserted in the new Rules because
even if the accused will not appeal,
there is an automatic review. So
the rule that when the period to
appeal has expired, the judgment
will become final, will NOT apply
in death penalty cases. However,
the lapse of the period to appeal
and no appeal is perfected, is not
the only instance where the
judgment of conviction becomes
final;
2. Even within the period to appeal,
that is when the sentence has been
partially or totally satisfied or served.
For example Charles has been
sentenced to 10 days of Arresto
Menor and he has already served
it. Or Charles has been sentenced
to pay a fine of P100 and he pays
it. Wala na! Final na iyan! Because
he has decided to serve his
sentence, it has become final. We
do not have to wait for 15 days;
3. When the accused has waived in
writing his right to appeal;
4. When after conviction, the accused
applies for probation (this is based
on the probation law). When
Charles applies for probation, he is
waiving his right to appeal and he
is accepting the judgement of
conviction.
Take note, however, that in these instances,
when the judgment of conviction becomes final,
even before the lapse of 15 days, what the law
means is that what has become final is the
criminal aspect. The civil aspect of the case does
NOT become final after the lapse of 15 days. And
these instances do not apply when the penalty
imposed is death because of the automatic review
of the Supreme Court.
I met this problem before where the judgment
convicted the accused and the trouble is that
judgment forgot to impose civil liability.
Nalimutan talaga! And there was no reservation
or waiver so that the court should have imposed
the civil aspect. The trouble is, after the
promulgation, the accused started to serve his
sentence the following day.
But within the period of 15 days, we filed a
motion for reconsideration to complete the
judgment because under Section 1 of this Rule,
the imposition of the proper civil liability must be
included. And Section 2 also provides that the
civil liability should be enforced unless the
enforcement of civil liability in a separate civil
action has been reserved or waived.
The judge acknowledged and admitted that
he overlooked the civil liability. He said that he is
ready to modify the judgment to include the civil
liability which he forgot. But the judge said, the
trouble is that he can no longer do it because the
accused has already started serving his sentence
after promulgation, and from that moment, the
judgment has become final. So he said, “how can
I amend my judgment kung final na?”
I told him, what became final was the
criminal aspect, the civil aspect cannot become
final until after the lapse of 15 days. Sabi ng
judge, “Are you sure? Can you sight a case which
says so? Because my researcher said na hindi
pwede.”
Yes, according to the SC in one case, “…as
long as the period for appeal has not yet expired,
even if the judgment has become final by service
of sentence or waiver of appeal, the trial court
may still modify its judgment as to its civil
aspect.” So what is final is the criminal aspect and
NOT the civil aspect. Because if the offended
party cannot claim civil liability kasi inunahan ng
accused ng pag-serve ng sentence, there is
something unfair there no.
SEC. 8. Entry of judgment. –
After a judgment has become
final, it shall be entered in
accordance with Rule 36. (8)
Rule 36 is entitled, “Judgments, Final Orders
and Entry Thereof.” While Rule 36 falls under the
subject of Civil Procedure, some of its provisions
may be applied in criminal procedure.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 166
SEC. 9. Existing provisions
governing suspension of
sentence, probation and parole
not affected by this Rule. –
Nothing in this rule shall
affect any existing provisions
in the laws governing
suspension of sentence,
probation or parole. (9a)
The suspension of sentence, probation or
parole are governed by substantive law such as
the Indeterminate Sentence Law and the
Probation law. These laws have never been
modified or affected by the Rules of Court.
Rule 121
NEW TRIAL OR
RECONSIDERATION
SECTION 1. New trial or
reconsideration. – At any time
before a judgment of conviction
becomes final, the court may,
on motion of the accused or at
its own instance but with the
consent of the accused, grant a
new trial or reconsideration.
(1a)
NEW TRIAL
Q: What is the effect of the filing of a motion
for new trial on the double jeopardy rule?
A: An accused who files a motion for new trial
WAIVES the protection of double jeopardy, so
that if the motion is granted, he can be tried and
convicted of the graver offense charged in the
complaint or information. (Trono vs. U.S. 11 Phil.
726; Santos vs. People, 64 Phil. 10)
Actually, it is like an appeal eh – when an
accused appeals the judgment against him, he is
waiving his right against double jeopardy. And it
has happened several times in the past where the
accused was charged with murder and convicted
of homicide. He was not contented. When he filed
an appeal, he was convicted of murder.
Sometimes, appeal can give you a worse
situation.
It happened here in Davao where a lawyer
was charged as a principal for falsification of
documents that he notarized. The judge convicted
him of falsification but merely as an accomplice.
Binabaan ba! But I think the intention of the judge
was to allow the lawyer to ask for probation. Pero
hindi nakuntento ang lawyer. He appealed to the
CA. Naloko na! Nasamot gyud! The CA
convicted him as principal. And what was worse,
the CA said that since the accused was a lawyer,
let a copy of the decision be brought to the SC for
disbarment proceedings. Na disbarred pa! That’s
what happens for appealing!
Alright, and take note, at any time before a
judgment of conviction become final. Now this is
one provision which you have to compare with
Rule 120, Section 7 on Modification of Judgment.
Q: Compare and Distinguish New Trial from
Modification of Judgment.
A: Similarity: Both may be resorted to before
the judgment of conviction becomes final.
Distinctions:
1. In new trial, by the very nature of its
purpose and what is to be done, both
parties intervene; whereas, in
modification of judgment, the court
moto propio may act provided the
consent of the accused is required;
2. In new trial, if the motion is granted,
the original judgment is vacated and a
new judgement shall be rendered;
whereas, in modification of judgment,
the integrity of the decision already
rendered is unaffected, except for the
proposed changes, although the entire
decision may have to be rewritten.
(People vs. Tamayo, 86 Phil. 209)
Now, there is a new section in the New Rules
which created confusion – Rule 119 Section 24.
SEC. 24. Reopening.– At any
time before finality of the
judgment of conviction, the
judge may, motu proprio or upon
motion, with hearing in either
case, reopen the proceedings to
avoid a miscarriage of justice.
The proceedings shall be
terminated within thirty (30)
days from the order granting
it. (n)
When do you make the motion for reopening?
At anytime before the judgment of conviction
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 167
becomes final? Pareho di ba! The language of the
3 provisions are identical, motion for: (1)
reopening of trial; (2) modification of judgment of
conviction; and (3) new trial or reconsideration
That is a new provision. So that when I
looked at the new Rules, talagang nalito ako. Ano
ba itong reopening of trial. How is this different
from the others?
That is why, during the seminar in Men Seng
last November 30 on the New Rules, I brought
this out, eh. Would somebody be kind enough to
tell the difference between the three? Everything
kasi is done before the judgment of conviction
becomes final! Of course, nobody stood up there
to tell me the difference.
Kaya nalito ako. Former Solicitor General
Galvez, when he was here, told me that
“typographical error man yung Rule 119 ba, hindi
man ganyan ang aming recommendation.” Why
nga naman will you reopen after judgment of
conviction? Reopenning is done before judgment
is rendered. Ito naman, paglabas! Naloko na! It
created a lot of confusion. So if we believe
Galvez, the confusion is caused by a
typographical error, which according to him is
not the language of the Rules submitted to the SC
and somebody tinkered with that provision.
There is also a rule on New Trial in civil cases
under Rule 37, you know the grounds: FAME,
NDE, etc. And there are some rules there to
follow such as the motion for new trial must be
supported by affidavits of merits, or the motion
for reconsideration must point out specifically the
error committed by the trial court, and the
portion of the decision not supported by the
evidence. Otherwise, if you do not comply with
these requisites, what is the name of your
motion? PRO FORMA. Pro Forma, meaning the
filing of your motion for new trial or
reconsideration will NOT interrupt the period to
appeal. That is the effect.
This is now the question:
Q: Is there such a thing as pro forma motion for
new trial or reconsideration in criminal cases?
Where your motion is obviously dilatory? Your
grounds are too general, too vague, too
ambiguous? No affidavit of merits? And therefore
if it is denied, there is no more right to appeal by
the accused applying the pro forma rule?
A: The SC ruled in the past that the pro forma
rule in civil cases DOES NOT apply to criminal
cases. In criminal cases, a general statement of the
grounds for new trial is sufficient. (People vs.
Colmenares, 57 O.G. 3714) Even if you do not go
into details because you expect your motion to be
denied, but the filing will still interrupt the
period. It is too harsh if the remedy of appeal will
be removed from the accused simply because of a
motion for new trial which is not prepared
properly. So the pro forma rule will not apply in
criminal cases. The filing of a motion for new trial
or reconsideration will always interrupt the
running of the period to appeal.
Q: Alright, what are the grounds for new
trial?
A: Section 2:
SEC. 2. Grounds for a new
trial. – The court shall grant
a new trial on any of the
following grounds:
(a) That errors of law or
irregularities prejudicial to
the substantial rights of the
accused have been committed
during the trial;
(b) 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
change the judgment.
Q: What are the grounds for a new trial?
A: Under Section, the following are the
grounds:
1. Errors of law;
Example: In one case, during the trial,
the trial court excluded a defense witness
from testifying based on an erroneous
interpretation of the rules of evidence. The
judge disqualified him. But it turned out
that the witness was not disqualified. That
is an error of law. For all you know, if his
testimony will be given, the accused will
be acquitted. Therefore, a new trial should
be granted where he should be allowed to
testify. (People vs. Estefa, 86 Phil. 104)
2. irregularities prejudicial to the substantial
rights of the accused;
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 168
Example: In one case, the trial court
compelled the accused, over his objection,
to submit to trial without the assistance of
his counsel. (People vs. Enriquez, L-4934,
November 28, 1951) If the accused is
convicted because of such irregularity,
this is a valid ground for new trial.
Besides, why should the judge punish the
accused? He should punish the lawyer.
3. Newly discovered evidence; this is similar to
civil cases, newly discovered evidence.
The requisites are the same:
a.) discovered after trial;
b.) it could not have been discovered
before trial even with the use of
reasonable diligence
c.) and if introduced and admitted
would probably change the
decision
Q: May a new trial be granted on the ground
of loss of stenographic notes?
A: NO. The loss of stenographic notes after
trial is NOT such an irregularity as would justify
a new trial. The remedy of the accused is to have
the missing evidence reconstituted. (People vs.
Castelo, L-10774, February 16, 1961)
There is a case, the trial is concluded, and the
accused is convicted. Within the period of 15 days
from promulgation, here comes the accused filing
a motion for new trial on the ground that the
prosecution witness has executed an affidavit
recanting his testimony. The prosecution witness,
in effect, is saying that what he said during the
trial is not true.
Q: May a new trial be granted on the ground
of loss of recantation of prosecution witnesses?
A: As a GENERAL RULE, recantation is NOT
a ground for new trial, otherwise there would
never be an end to criminal litigation. “The Court
has looked with disfavor upon retraction of
testimonies previously given in court. Thus, the
Court has ruled against the grant of a new trial on
the basis of a retraction by a witness. The
rationale for the rule is obvious: Affidavits of
retraction can easily be secured from poor and
ignorant witnesses usually for a monetary
consideration. Recanted testimony is exceedingly
unreliable. There is always the probability that it
may later be repudiated. So courts are wary or
reluctant to allow a new trial based on retracted
testimony.” (People vs. Clamor, July 1, 1991;
People vs. Soria, October 4, 1996)
Q: Is there an EXCEPTION?
A: YES, when it is made to appear that there is
no evidence sustaining the judgment of
conviction other than the testimony of the
recanting witness. (U.S. vs. Dacir, 26 Phil. 503)
When aside from the testimonies of the retracting
witness or witnesses there is no other evidence to
support a judgment of conviction, a new trial
may be granted. (People vs. Clamor, July 1, 1991)
GOMEZ vs. IAC
April 9, 1985
HELD: “It is conceded that the
State has the sovereign right to
prosecute criminal offenses under the
full control of the fiscal and that the
dismissal of criminal cases by the
execution of an affidavit of desistance
by the complainant is not looked upon
with favor. However, it is also true
that an affidavit of desistance may
create serious doubts as to the liability
of the accused. At the very least, it
calls for a second hard look at the
records of the case and the basis for
the judgment of conviction.
Jurisprudence on the effect of
desistance notwithstanding, the
affidavit should not be peremptorily
dismissed as a useless scrap of paper.”
Sometimes I have seen affidavits of
recantation made by the complainant, alam mo
kung anong nakalagay? – “I have lost interest in
continuing the case.” Pero tapos na, naka-testify na
siya. And on the basis of that, a new trial was
granted. Mali man iyan ba. Para mag-new trial,
dapat na sabihin niya, “Mali ang mga sinabi ko!” If
you say that you are not interested, you are not
really repudiating what you said. That is what the
SC emphasized in the 1998 case of
PEOPLE vs. GARCIA
288 SCRA 382 [1998]
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HELD: “To warrant a new trial,
the affidavit of desistance must
constitute a recantation and not a mere
withdrawal from the prosecution of
the case. The complainant's affidavit of
desistance did not constitute a
recantation, because she did not deny
the truth of her complaint but merely
sought to be allowed to withdraw and
discontinue the case because she
wished to start life anew and live
normally again. She never absolved or
exculpated the accused. In other
words, a recantation of a prior
statement or testimony must
necessarily renounce the said
statement or testimony and withdraw
it formally and publicly.”
Parang ganito ba: “Yung sabi ko noon na ni-rape
niya ako, di man na tinood ba, pumayag man ako ba!”
Yan, baliktarin mo lahat ang sinabi mo. Hindi
yung: “I am not interested, kapoy na, ayoko na.”
Hindi pwede yan, that is not recantation because
you are not disowning what you said earlier.
Now we will go to one last point.
PROBLEM: Let us assume that Sheriff was
convicted purely because of the testimony of the
complainant, Thaddeus. Now, Thaddeus makes
an affidavit stating that everything he said is not
true. Meaning he is really recanting – binabawi
niya lahat ng sinabi niya.
Q: Is this a ground for new trial?
A: Following jurisprudence, YES. It becomes
now an exceptional case. There will be a new
trial.
Q: What do you mean new trial?
A: We will now restart the case.
Q: Who will testify?
A: Eh di si Thaddeus! – yung complainant,
who will be asked: “During the trial this is what
you said, what are you saying now?” As he answers,
Thaddeus must say under oath that he lied before
and this is the truth… [amen!]
Q: After that, can the court say that the
accused is now acquitted because now Thaddeus
is telling the truth when before Thaddeus was not
telling the truth? Is this what will happen?
A: The SC said NO. The only thing that will
happen is that a new trial will be granted. But this
does not mean that the accused shall be acquitted.
When we say new trial, this means that the court
should hear the testimony of the complainant
again. BUT after testifying, the court may say,
“You say you were lying before and you are telling the
truth now, but the court does not believe you because
as far as the court is concerned, you were telling the
truth before and you are lying now.” Therefore the
conviction stands. That is possible.
Because some lawyers believe that if a new
trial is granted, sigurado na acquitted na ang
accused. NO, the SC never guaranteed that. It will
only be a ground for new trial without a
guarantee whether the decision will be reversed
or not. But in practice, lutong Macau lahat iyan.
Usapan nalang iyan between the lawyer and the
fiscal tapos kasali pa ang judge. That is what is
happening, I know that.
But if you follow the rules, there is no
guarantee that if new trial is granted, the accused
will be acquitted. There is no rule that says that
when a witness testifies twice, the court will
always believe the latest testimony. And the SC
has emphasized that in many cases, one of them
is the case of
PEOPLE vs. CLAMOR
July 01, 1991
HELD: “Where a witness testifies
for the prosecution and retracts his or
her testimony and subsequently
testifies for the defense, the test in
determining which testimony to
believe is one of comparison coupled
with the application of the general
rules in evidence.” So you apply what
you know about evidence, about
credibility, appreciation of evidence.
“The rule should be that a
testimony solemnly given in court
should not be lightly set aside and that
before this can be done, both the
previous testimony and the
subsequent one be carefully
compared, the circumstances under
which each given carefully
scrutinized, the reasons or motives for
the change carefully scrutinized — in
other words, all the expedients

devised by man to determine the
credibility of witnesses should be
utilized to determine which of the
contradictory testimonies represents
the truth.”
Of course, if the court believes that the second
testimony is accurate and the witness lied during
the first, then acquit! But if the court believes that
the witness was telling the truth in the first
testimony, the conviction stands.
So take note of that because these are
misunderstood concepts eh.
RECONSIDERATION
Now, ano naman ang Reconsideration?
same as in civil cases.
SEC. 3. Ground for
reconsideration.– The court
shall grant reconsideration on
the ground of errors of law or
fact in the judgment, which
requires no further
proceedings. (3a)
SEC. 4. Form of motion and
notice to the prosecutor. – The
motion for new trial or
reconsideration shall be in
writing and shall state the
grounds on which it is based.
If based on a newly-discovered
evidence, the motion must be
supported by affidavits of
witnesses by whom such evidence
is expected to be given or by
duly authenticated copies of
documents which are proposed to
be introduced in evidence.
Notice of the motion for new
trial or reconsideration shall
be given to the prosecutor.
(4a)
SEC. 5. Hearing on motion.
– Where a motion for new trial
calls for resolution of any
question of fact, the court may
hear evidence thereon by
affidavits or otherwise. (5a)
Q: Is there an instance when a MOTION for
reconsideration or new trial is PROHIBITED?
A: YES – when the case is tried in the MTC
under the Summary Rules. Bawal man iyan ba!
That’s a prohibited motion. Now you just take
note of that. Under Section 19[c] of the Revised
I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 170
Summary Rules, a motion for reconsideration or
new trial of a final judgment is prohibited.
Q: Of course, what are the effects of granting
the motion for new trial or reconsideration.
A: You have Section 6:
SEC. 6. Effects of granting
a new trial or reconsideration.
– The effects of granting a new
trial or reconsideration are
the following:
(a) When a new trial is
granted on the ground of errors
of law or irregularities
committed during the trial, all
the proceedings and evidence
affected thereby shall be set
aside and taken anew. The court
may, in the interest of
justice, allow the introduction
of additional evidence.
(b) When a new trial is
The 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.
(c) 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. (6a)
Q: Will there be really a trial de novo or will
there just be a reopening of the trial to introduce
the newly discovered evidence?
A: Under paragraph [c] which we already
discussed: “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.”
Q: Suppose after new trial, the court still finds
the accused guilty?
A: There will be another judgment but
definitely the original judgment is already set
aside. When the court grants the motion, wala na
iyon! Regardless of whether the new judgment
will be the same or not.
So with that, we are now through with
Rule 121.
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Rule 122
APPEAL
SECTION 1. Who may appeal. –
Any party may appeal from a
judgment or final order, unless
the accused will be placed in
double jeopardy. (2a)
Q: What is appeal?
A: Appeal means a review of a decision of a
lower court by a higher court. The higher court
will determine whether the decision of the lower
court is correct, just, etc.
Q: May an accused appeal from a judgement
of acquittal?
A: Normally, NO, because a judgement of
acquittal becomes final immediately upon
promulgation, so why will you appeal? And why
are you appealing if you are acquitted? You
mean to tell me, you are praying to be convicted?
[sira!] However in the old case of
PEOPLE vs. MENDOZA
74 Phil. 119
FACTS: The accused was
acquitted but the decision contained
some harsh remarks against the
accused which the accused feels are
irrelevant. So he decided to appeal
from the judgement of acquittal, not
for the purpose of reversing it, but for
the purpose of removing all those
harsh, irrelevant remarks against him
in the decision.
HELD: The accused may appeal
from a judgement of acquittal if it
contains statements that are irrelevant
and should be expunged from the
record, for the purpose of striking out
those statements.
Q: Can the People of the Philippines or the
prosecution appeal in a criminal case?
A: It depends. If you read Section 1, it would
seem so, for as long as the accused will not be
placed in double jeopardy. BUT if the appeal of
the prosecution will place the accused in double
jeopardy, then he cannot appeal.
Q: Suppose the accused filed a Motion to
Quash the information on this or that ground and
the court quashed the information but the
quashing is wrong. Can the prosecution appeal
from the judgement of the court quashing the
information?
A: YES, because the elements of double
jeopardy would not be present. First, the
dismissal is with his express consent. And
normally, a dismissal on a technicality is not
considered as an acquittal. It is just a dismissal
where there is no trial. So puwede.
However, according to the Supreme Court, if
the Motion to Quash is based on the grounds of
extinction of criminal liability, or double
jeopardy, then the prosecution cannot appeal
because that would place the accused under
double jeopardy. (Bandoy vs. CFI, 13 Phil. 157)
Q: How about an appeal by the prosecution
because the penalty is wrong? The accused is
convicted but the penalty is very low. The
penalty should be higher. So the prosecution is
appealing for the purpose of correcting the
penalty. It should be higher. Can the prosecution
do that?
A: NO, because that will place the accused in
double jeopardy. (People vs. Cabarles, 54 O.G.
7051; People vs. Pomeroy, 97 Phil. 927; People vs.
Flores, April 28, 1958) In other words, the error
will remain as it is.
HOWEVER, based on jurisprudence, which
you already knew, even if the accused is
acquitted, but the judgement of acquittal is NULL
and VOID, then the prosecution is allowed to
appeal because a void judgement does not give
rise to double jeopardy. (People vs. Balisacan,
August 31, 1966)
Q: Now give an example of a case where the
prosecution was allowed to appeal from a
judgement of acquittal, because the SC said the
acquittal is null and void.
A: A good example is what happened in the
old case of People vs. Balisacan. This was already
asked in the BAR.
PEOPLE vs. BALISACAN
August 31, 1966
FACTS: The accused was charged
with a certain crime which is not a
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 172
capital offense. Maybe the penalty is
only reclusion temporal or prision mayor.
And then during the arraignment, the
accused pleaded guilty. And sabi ng
accused: “Your Honor, may we be
allowed to present evidence to prove
mitigating circumstance?” You are
guilty but you may still present
evidence to prove mitigating
circumstances for purposes of
reducing the penalty. Do you know
during the presentation of the
evidence for the accused to prove
mitigating, he attempted to prove self-
defense? And the court, after trial,
said: self defense? After the hearing,
self defense pala. Okay, the accused is
hereby acquitted. Nagreklamo ang
prosecution, “Why will you acquit him
when he already pled guilty?”
ISSUE: Can the prosecution
appeal the judgment of acquittal in the
case at bar?
HELD: YES, the prosecution can
appeal because the judgement of
acquittal is NULL and VOID. In the
first place, the hearing is not for the
purpose of proving his innocence. The
hearing is for the purpose only of
proving mitigating circumstance so
why will you give him the benefit of
justifying circumstance? Now what
should be the correct procedure? You
just say mitigating and tapos you are
proving self defense? Pag ganyan, the
court will say: “Okay, self defense ba?
The plea of guilty is hereby erased. Let’s
go to trial.” Ayan. And then the
prosecution will present evidence.
But here, he pled guilty,
mitigating, he proved self defense, ako
(prosecution) hindi. What happens
now to the prosecution’s right to
prove the crime? Well at least the
prosecution should be given the right
to prove the crime before acquitting
him immediately. So the SC said, the
judgement of acquittal is null and
void. Therefore, the prosecution can
appeal under Section 1 of Rule 122. It
will not place the accused in double
jeopardy because of the void
judgement.
Q: Aside from the accused, People of the
Philippines unless there is double jeopardy, who
can appeal?
A: The offended party may appeal from any
judgement, order or ruling which is adverse to
his civil rights or to the civil liability, or on pure
questions of law (e.g. whether or not the
information charges no offense). Provided, he
has not waived or reserved the right to file a
separate civil action and the civil action is
deemed instituted, because the civil aspect is
different from the criminal aspect. So the
offended party can appeal from that portion of
judgement adverse to his civil liability.
Q: Who else can appeal?
A: The bondsmen can appeal in case of
judgement against the bond in a forfeiture case.
In bail, what happens when the accused failed to
appear? The court may order the confiscation or
forfeiture of the bond. And if the bondsman
cannot satisfactorily explain why he failed to
present the accused, then judgement may be
rendered, holding the bondsman/bonding
company liable. Can he appeal? Ah yes. He can
appeal from the judgement making him liable for
his bond.
Q: Who else can appeal?
A: The employer of the accused can also
appeal from any order of the court making him
subsidiarily liable for the civil liability of the
accused under Article 103 of the Revised Penal
Code.
So these are the people who can appeal in
criminal cases. Alright.
SEC. 2. Where to appeal. –
The appeal may be taken as
follows:
(a) To the Regional Trial
Court, in cases decided by the
Metropolitan Trial Court,
Municipal Trial Court in
Cities, Municipal Trial Court,
or Municipal Circuit Trial
Court;
(b) To the Court of Appeals
or to the Supreme Court in the
proper cases provided by law,
in cases decided by the
Regional Trial Court; and
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(c) To the Supreme Court, in Q: How about MTC to RTC and then you are
cases decided by the Court of
Appeals. (1a) still convicted? Where will you appeal?
A: Court of Appeals by Petition for review
SEC. 3. How appeal taken.– (Rule 42).
(a) The appeal to the Regional
Trial Court, or to the Court of
Appeals in cases decided by the Q: Now how about a case tried by the RTC
Regional Trial Court in the (pursuant to its original jurisdiction)? The
exercise of its original
jurisdiction, shall be taken by accused is convicted, he wants to appeal to the
filing a notice of appeal with CA? What is the correct mode of appeal?
the court which rendered the A: Ordinary appeal by notice of appeal to the
judgment or final order
appealed from and by serving a Court of Appeals (Rule 41)
copy thereof upon the adverse
party. NOTE: If it is RTC to CA, pursuant to the
(b) The appeal to the Court
of Appeals in cases decided by appellate jurisdiction of the RTC, the mode of
the Regional Trial Court in the appeal is petition for review (Rule 42). If the case
exercise of its appellate was tried by the RTC pursuant to its original
jurisdiction shall be by
petition for review under Rule jurisdiction, it is ordinary appeal by notice of
42. appeal to the CA (Rule 41).
(c) The appeal to the
Supreme Court in cases where
the penalty imposed by the Q: However, suppose the penalty imposed by
Regional Trial Court is death, the RTC is death, what is the mode of appeal and
reclusion perpetua, or life
imprisonment, or where a lesser
where?
penalty is imposed but for A: To the Supreme Court, no need to appeal,
offenses committed on the same automatic review. Well, if you want to appeal,
occasion or which arose out of
the same occurrence that gave
okay lang. But even if you do not appeal, there is
rise to the more serious automatic review.
offense for which the penalty
of death, reclusion perpetua,
or life imprisonment is
Q: Suppose the RTC convicted the accused
imposed, shall be by filing a and sentenced him to reclusion perpetua or life
notice of appeal in accordance imprisonment (not Death), where will you
with paragraph (a) of this
section.
appeal?
(d) No notice of appeal is A: You appeal directly to the Supreme Court
necessary in cases where the (Ordinary Appeal, Rule 41) because under the
death penalty is imposed by the
Regional Trial Court. The same
Constitution, Supreme Court yan e.
shall be automatically reviewed
by the Supreme Court as Q: In such case, is there an automatic review?
provided in section 10 of this
Rule. A: NO! You must appeal.
Except as provided in the
last paragraph of section 13, That is the common error ‘no? Many lawyers
Rule 124, all other appeals to
the Supreme Court shall be by believe there is automatic review. No! Automatic
petition for review on review is only for death penalty. You are
certiorari under Rule 45. (3a) confused, sabi ko sa kanila noon. “Hindi ba,
Death sa SC yan, reclusion perpeuta sa SC din?”
Under the Constitution, yes. “O, di automatic
Now the next question is where to appeal and review!” No! The automatic review is for the
how to appeal. We have Section 2. You have death penalty only. Kapag perpetua, you must file
Section 3. Alright, let us try to outline. Actually your notice of appeal. Otherwise, madisgrasya
it’s the same in civil cases. ka niyan. The only similarity is the appeal is to
the Supreme Court. But there is no automatic
Q: From the MTC , where will you appeal? review for reclusion perpetua. You must file a
What is the mode of appeal? notice of appeal, that is what I said. Because na-
A: RTC, the mode of appeal is Ordinary confuse, eh. Kay alam nila sa Constitution,
appeal by a notice of appeal (Rule 40). Supreme Court, akala nila na automatic na rin.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 174
GARCIA vs. PEOPLE
318 SCRA 434 [1999]
FACTS: The accused were
sentenced to reclusion perpetua. Their
lawyer believed that there is automatic
review of the case so he did not do
anything. The prosecution now moves
to enforce the judgment. The accused
contended that there can be execution
yet because of the automatic review.
ISSUE: Must the SC automatically
review a trial court’s decision
convicting an accused of a capital
offense and sentencing him to
reclusion perpetua? In other words, is
the accused not required to interpose
an appeal from a trial court’s decision
sentencing him to reclusion perpetua
to SC because the latter’s review of the
sentence is automatic?
HELD: The issue is not new. We
have consistently ruled that it is only
in cases where the penlty actually
imposed is death that the trial court
must forward the records of the case
to the SC for automatic review of the
conviction.
As the petitioners did not file a
notice of appeal or otherwise indicate
their desire to appeal from the
decision convicting them of murder
and sentencing each of them to
reclusion perpetua, the decision
became final and unappealable.
Q: Now, how about CA to SC?
A: That is appeal by certiorari. That is
paragraph [e] – Except as provided in the last
paragraph, Section 13, Rule 124, all other appeals to
the Supreme Court shall be by petition for review on
certiorari under Rule 45. “All other appeals,” Ano
yang “all other appeals?” All other appeals, not
mentioned in a, b, c, d. Ano yon? That is CA to
SC. Or, RTC direct to the Supreme Court on
questions of law only, because normally pag RTC,
dapat CA yan eh. But pure questions of law,
diretso na iyan. Or, from Sandiganbayan to the
Supreme Court. In case the Sandiganbayan
convicts an accused, the appeal is direct to the
Supreme Court by petition for review.
Now let’s go to some interesting cases on
appeal. Take note, when an accused is sentenced
by the RTC to death, he can appeal to the SC. But
even if he will not appeal, there will be an
automatic review. Now if he is sentenced to
perpetua, he must appeal to the SC. Otherwise, the
judgement will become final. However, there was
an interesting EXCEPTION which happened in
the case of
PEOPLE vs. PANGANIBAN
125 SCRA 595
FACTS: The accused was charged
in three (3) informations for murder
and the three cases were tried
together. And there were three (3)
decisions. He was convicted in all the
three murders. In the three cases for
murder, he was sentenced to reclusion
perpetua in one and death for the other
two. He did not appeal. Now of
course, the cases where he was
sentenced to death, akyat yan sa SC.
ISSUE: How about the other case
where he was he was sentenced to
reclusion perpetua? Should the SC also
review the other one?
HELD: YES. Normally, hindi
dapat eh, because he did not appeal.
However, since these 3 cases were
tried together, he committed murder
allegedly on the same occasion, We
might as well review also the other
one. So that is one instance where
nakalusot ‘no?
“Where a criminal case for murder
where accused was sentenced to
perpetua, arose out of the same
occasion as two other criminal cases
for murder where the same accused
was sentenced to death in a joint
decision. The former shall be deemed
appealed automatically jointly with
the latter two cases, even if the
accused did not appeal from the court
sentence of reclusion perpetua in the
first case. It would be absurd to
require accused, under the peculiar
circumstances, to file a separate appeal
because the three criminal cases of
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 175
which he was convicted by the trial
court in a single decision are so
intertwined with each other, the three
cases having arisen on the same
occasion.
Although there was a justice who dissented,
“Hindi pwede yan.” He did not agree with the
majority ruling. “We stick to the rule: kapag
perpetua, you appeal. If you will not, hindi
pwede.” So dissenting justice Aquino says, “We
cannot set aside that portion of the judgment
imposing reclusion perpetua because it is not
under review. It has long become final and executory
because there was no appeal from that portion of the
judgment. It should have been appealed in order
to be reviewed by this Court.”
That is the general rule. You cannot expect an
automatic review in a penalty of reclusion
perpetua. Now another interesting case on death
penalty was the case of PEOPLE VS. ENCISO,
infra, which was also controversial decision. The
Supreme Court was not unanimous, no. Alright,
what happened here?
PEOPLE vs. ENCISO
160 SCRA 728
FACTS: Two accused were
charged with the crime of robbery
with homicide which is punishable by
death. They pleaded guilty.
Considering the gravity of the crime,
the trial court ordered a mandatory
presentation of evidence by the
prosecutor.
After hearing, the court found
them guilty beyond reasonable doubt
and imposed the death penalty. They
did not appeal but the case was
elevated to the Supreme Court on
automatic review. However, on
appeal, the SC found the evidence
insufficient.
HELD: “Despite accused’s pleas of
guilty, We believe the pleas must not
be taken against them, for as clearly
borne out by the evidence presented,
said guilt has not actually been proved
beyond reasonable doubt. The fact that
they did not appeal is of no
consequence, for after all, this case is
before Us on automatic review (that is
whether appeal was made or not), for
after all, this case is before Us on
automatic review, accused are
acquitted on reasonable doubt.”
Again, there were four (4) justices who
refused to concur. Ang kanila, of course there is
presentation of evidence, they argued, guilty.
Tapos ni-review natin but diskumpiyado tayo,
then just impose perpetua, huwag mong i-acquit!
Because they pled guilty na. But the majority,
“We will acquit.” [palag?] Another interesting case
on appeal is the 1996 case of
MANUEL vs. ALFECHE, JR.
259 SCRA 475
FACTS: The petitioner here, Delia
Manuel, filed a criminal case for libel
against the editor-in-chief, associate
editor and asst. editor of a regional
newspaper in the Western Visayas,
known as Panay News, which has
considerable circulation in Panay
Island and throughout Western
Visayas. After trial, Judge Alfeche
found the accused guilty, so all the
accused were convicted, but Manuel’s
claim for damages was dismissed.
Of course, both parties were
aggrieved! The accused were
aggrieved because they were
convicted. The offended party,
Manuel, was also aggrieved because
her claim for civil liability was
dismissed. So, the accused appealed
the conviction to the CA because that
is where the appeal should go. Si
Manuel naman raised the correctness
of the judgement depriving her of civil
liability, on pure question of law, to
the SC by way of appeal by certiorari.
ISSUE: Is that procedure correct?
Because nahati eh – the offended party
going to the SC and the other party to
the CA. Magkagulo na yan eh because
that would practically be splitting the
appeal in two parts, ‘no?
HELD: While normally on
questions of law, from the RTC to the
SC should be by petition for review.
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Now, because of this situation,
everybody should go to CA. That is
the ruling in this case.
“In view of the factual
environment of this case, particularly
that private respondents herein had
already taken an appeal to the Court
of Appeals to question the trial court's
judgment of conviction, the proper
remedy for petitioner is simply
ordinary appeal to the said tribunal.
This is so because the award of
moral and exemplary damages by the
trial court is inextricably linked to and
necessarily dependent upon the
factual finding of basis therefor,
namely, the existence of the crime of
libel. Inasmuch as the very same
Decision herein assailed is already
pending review by the Court of
Appeals, there is a distinct possibility
that said court may, if the facts and the
law warrant, reverse the trial court
and acquit the accused. In such event,
the appellate court's action could
collide with a ruling finding merit in
petitioner's contentions before this
Court. Such a situation would lead to
absurdity and confusion in the
ultimate disposition of the case.
Obviously, this possibility must be
avoided at all cost. This is at least the
reason for the rule against forum-
shopping. Clearly, then, petitioner
ought to have brought her challenge in
the Court of Appeals” although she is
appealing on pure questions of law.
Nandoon na yong accused, eh.
Sumama ka na lang doon. Let one
court decide the whole thing.
APPEAL FROM THE SANDIGANBAYAN
Q: If you are tried in the Sandiganbayan for,
let’s say, graft, you are a grade 27 employee of the
government or higher. If you are convicted,
where will you appeal?
A: You appeal to the Supreme Court by way
of appeal by certiorari under Rule 45.
Now, the constitutionality or validity of that
procedure was attacked in the case of :
NUÑEZ vs. SANDIGANBAYAN
111 SCRA 433
FACTS: The challenge in this case
is that the Sandiganbayan law, at least
on that portion on appeal, is
unconstitutional because what is
violated is equal protection of the law.
Because for example: An employee
who is below Grade 27 is tried for
Anti-Graft, where will case be filed? It
should be filed in RTC. In case he is
convicted, where will he appeal? He
will appeal in the Sandiganbayan.
And then from Sandiganbayan to SC.
Or, in case he is a civilian, or the
case is not Anti-Graft, that would be
from the RTC to CA, and CA to SC. If
you notice in both examples, there are
two levels of appeals, eh. Now, if you
are tried in the Sandiganbayan and
you are Grade 27 or higher and you
are convicted, you appeal will be to
the SC – so, isang level lang. Bakit siya
dalawa, ako isa lang? So, the law is
unconstitutional. It violates the equal
protection of the law. It is
discriminatory – that was the
challenge.
HELD: The majority still sustained
the validity. But there were three
senior members of the Supreme Court
at that time who dissented. They
believe that the law is unconstitutional
- bakit all the rest dalawa ang appeal,
ako isa lang? Among those who
dissented were Justice Teehankee,
Makasiar and Fernandez. These were
very influential in the Supreme Court
and they were the ones who voted to
declare the law unconstitutional. But
the majority said it is valid.
Starting with that, the SC adopted the policy
that if you are convicted by the Sandiganbayan
and you go to the Supreme Court on appeal by
certiorari, we will carefully review the petition for
review because precisely, you are placed at a
disadvantage. You have only one level, one
appeal lang eh. And therefore, it is our obligation
to really review everything to see to it that you
were correctly convicted. I think that is what
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 177
happened to Imelda Marcos, no? So the court
said in the case of
CESAR vs. SANDIGANBAYAN
134 SCRA 105
HELD: “Considering further that
no less than three senior members of
this Court, Justices Teehankee,
Makasiar, and Fernandez dissented
from the Court's opinion in Nuñez vs.
Sandiganbayan partly because of the
absence of an intermediate appeal
from Sandiganbayan decisions, where
questions of fact could be fully
threshed out, this Court has been most
consistent in carefully examining all
petitions seeking the review of the
special court's decisions to ascertain
that the fundamental right to be
presumed innocent is not disregarded.
This task has added a heavy burden to
the workload of this Court but it is a
task we steadfastly discharge.”
In other words, it has become cumbersome,
no? Because we have to be very careful. We have
to be very meticulous. Kaya it has become an
added burden. We have no choice because the
accused is deprived of a second chance. This is
his last chance, so we have to be very sure that he
is really guilty.
SEC. 4. Service of notice of
appeal. – If personal service
of the copy of the notice of
appeal can not be made upon the
adverse party or his counsel,
service may be done by
registered mail or by
substituted service pursuant to
sections 7 and 8 of Rule 13.
(4a)
SEC. 5. Waiver of notice. –
The appellee may waive his
right to a notice that an
appeal has been taken. The
appellate court may, in its
discretion, entertain an appeal
notwithstanding failure to give
such notice if the interests of
justice so require. (5a)
Q: Who is the appellant?
A: If you are convicted in the lower court and
you appealed, you are the appellant.
Q: Who is the appellee?
A: People of the Philippines.
SEC. 6. When appeal to be
taken. – An appeal must be
taken within fifteen (15) days
from promulgation of the
judgment or from notice of the
final order appealed from. This
period for perfecting an appeal
shall be suspended from the
time a motion for new trial or
reconsideration is filed until
notice of the order overruling
the motion has been served upon
the accused or his counsel at
which time the balance of the
period begins to run. (6a)
Q: When do you appeal?
A: Under Section 6, fifteen (15) days from
promulgation of the judgement or from notice of
the order appealed from.
Q: What happens if you filed a motion for
new trial or reconsideration within the 15-day
period?
A: The same as in civil cases – the filing of the
motion for reconsideration will suspend the
running of the 15-day period to appeal until
notice of the order overruling the motion has
been served upon the accused or his counsel, at
which time, the balance of the period begins to
run. That phrase was added in the new rules –
“At which time, the balance of the period begins to
run.” That is only emphasizing what the rule
should be.
So, the 15-day period does not start to run all
over again. But you can still apply the balance if
the motion for reconsideration is denied. Now,
itong tanong ko:
Q: Suppose the motion for new trial is
granted. After new trial, convicted ka pa rin. So
there will be a second judgement. What is your
period to appeal? Is it 15 days all over again? Or
we count the 15-day period from the first
judgement, deducting the period during which
the motion for new trial was pending?
A: The SC said, the counting of the 15-day
period starts all over again from the time you
received the second decision. (Obugan vs. People,
May 22, 1995)
Q: Now how do you reconcile that principle
with Section 6?
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 178
A: Section 6 is different because here, the
motion for new trial is denied but in the above
example, the motion for new trial was granted.
But after new trial, convicted ka pa rin. So you
start counting the period to appeal all over again
from the time you received the second
judgement. And the SC cited Section 6[c] of Rule
121.
Rule 121, SEC. 6. Effects of
granting a new trial or
reconsideration. – The effects
of granting a new trial or
reconsideration are the
following:
x x x x x
(c) 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. (6a)
Q: What is the effect of a motion for new trial
if it is granted?
A: Under Rule 121, the judgement is vacated.
Meaning, it doesn’t exist anymore. After new
trial, convicted – all over, start na naman tayo.
That was the ruling in the case of:
OBUGAN vs. PEOPLE
May 22, 1995
HELD: If a motion for new trial is
granted, and after new trial, the
accused is still convicted, he has 15
days all over again to file an appeal
because under Rule 121, the previous
judgement of conviction was already
vacated. It does not exist anymore.
“Thus the rule provides for the
interruption of the appeal period in
the event the motion for new trial or
reconsideration is overruled. The
implication is that if the motion for
new trial is granted, as in the case at
bar, and a new judgment is rendered
after the new trial was conducted, the
period within which to perfect an
appeal is fifteen days from receipt of
the new judgment.”
Alright, let’s go to another issue. You have
two choices if you are convicted – 1) File a motion
for reconsideration. 2) If denied, you appeal.
Now, I will file a motion for reconsideration. And
then while it is still pending, there is still no
order, I changed my mind, “Appeal na lang ako
diretso. I will not anymore insist. Wala nang
mangyayari diyan.”
Q: Can I say, “I’m withdrawing my motion
for reconsideration and I am instead substituting
it with a notice of appeal?”
A: YES, because that is your choice. You can
abandon your motion for reconsideration,
withdraw it and then file a notice of appeal. No
problem about that.
Q: But I will now reverse the situation: Within
15 days after promulgation, I will file an appeal.
And then after 1 or 2 or 3 days, “Teka muna. I
will file muna pala a motion for reconsideration.
Huwag muna yang appeal, baka sakali pala.” So
I say, “I’m withdrawing my notice of appeal, and
instead file a motion for reconsideration.” Can I
still do that?
A: In the case of PEOPLE VS. DE LA CRUZ
(201 SCRA 632), The SC said, NO, you cannot
because the moment you file your notice of
appeal, the appeal is already perfected and the
court has lost jurisdiction already over the case
and can no longer change its own decision.
So baliktad ‘no? – motion for reconsideration-
withdraw-appeal, pwede. Appeal, and then
withdraw – motion for reconsideration, hindi
pwede! because the court has no more
jurisdiction over the case.
Now let’s go to Section 11, one of the most
important provisions. Let us go to Section 11, no.
Effect of appeal by several accused.
SEC. 11. Effect of appeal by
any of several accused. – (a)
An appeal taken by one or more
of several accused shall not
affect those who did not
appeal, except insofar as the
judgment of the appellate court
is favorable and applicable to
the latter.
(b) The appeal of the
offended party from the civil
aspect shall not affect the
criminal aspect of the judgment
or order appealed from.
(c) Upon perfection of the
appeal, the execution of the
judgment or final order
appealed from shall be stayed
as to the appealing party.
(11a)
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 179
paragraph [a]: An appeal taken by one or more of
several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate
court is favorable and applicable to the latter.
Q: There are 2 accused. Both of them are
convicted. One will appeal, the other will not
appeal. Suppose, the one who appealed, nanalo.
Will it favor then other accused who did not
appeal?
A: The GENERAL RULE is NO because if you
do not appeal, the judgement of conviction will
become final as far as you are concerned.
However, there is an EXCEPTION – if the
ruling in the appeal also applies to you, you will
be favored.
For example: Two accused were convicted.
One appealed, the other one did not appeal. On
the appeal sabi ng court, “No. The victim was not
killed. He committed suicide.” Naloko na! Acquitted
yun! “Paano na ako? Nakulong ako!” It will also
benefit you because the judgement of the
appellate court is also favorable and applicable to
you. BUT if the ruling is only applicable to the
appealing accused, pasensya ka.
Like for example, both of you are convicted.
You will not appeal, he will appeal. He will
appeal tapos sabi niya, “Minor man ako! Minor!”
Tapos sabi ng appellate court , “Ah, minor! He did
not act with discernment. Ok! Acquitted!” So, paano
ka? Maiwan ka, hindi ka man minor! The defense
of minority is not applicable to you.
Now, this provision has been applied already
several times. Among the first cases where this
was applied was the case of:
PEOPLE vs. FERNANDEZ
186 SCRA 830
FACTS: There were two accused
charged for selling marijuana, under
the Dangerous Drugs Act. Both of
them were convicted. Accused No. 1
appealed, but Accused No. 2 jumped
bail and remained at large. On appeal,
the Supreme Court acquitted Accused
No. 1 because of material
discrepancies in the testimony of the
star prosecution witness.
ISSUE: What happens now to the
conviction of Accused No. 2, who
escaped and did not appeal his
conviction?
HELD: It applies to the Accused
No. 2. “While, in effect, he committed
an act of defiance of the law by
escaping, we are not without other
prior incidents where such
undesirable conduct, which should
not be condoned, has sometimes been
ascribed to a sense of desperation of
those who believe they are guiltless
but fear that they cannot prove their
innocence. While we castigate and
reprove his jumping bail and
remaining at large up to now, we have
to concede, however, that our
disquisition in this case is applicable
and favorable to him, hence he is
affected by and shall benefit from the
acquittal that we hand down in this
appeal.”
So acquitted kahit na nag-jump bail, because
of this provision…So with that, he can come out
openly. And the ruling happened again. The
same thing happened in the 1996 case of PEOPLE
VS. PEREZ (263 SCRA 206). And one of the latest
where this happened again is the 1998 case of
PEOPLE vs. RUGAY
291 SCRA 692
HELD: “Finally, the Court notes
that the conviction of appellant's co-
accused, Arvil Villalon, rests on the
same evidence used to convict
appellant. The Court finds that such
evidence does not prove beyond
reasonable doubt either of the
accused's guilt. The acquittal of
Ricolito Rugay should also benefit
Arvil Villalon, the withdrawal of the
latter's appeal notwithstanding.”
Now let’s go to [b]:
(b) The appeal of the
offended party from the civil
aspect shall not affect the
criminal aspect of the judgment
or order appealed from.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 180

This is what I told you earlier that the civil to the higher court, the Court of
aspect is different from the criminal aspect. It is Appeals.
possible that the accused is acquitted but the 3. Once you appeal, the entire case is
offended party may appeal insofar as the civil open for review and you are waiving
aspect of the case is concerned. It shall not affect your right to double jeopardy.
the criminal aspect of the judgement or order
appealed from. That’s what I told you. After appeal, baka
mapasama ka pa. Ah, it happened several times. I
Q: Normally, who will handle the appeal in already mentioned what happened before,
criminal cases? Falsification? The lawyer was sentenced to
A: Solicitor-General. The Solicitor-General Falsification as an accomplice. Appeal-appeal pa,
handles the appeal. so naloko na. Because it was originally charged
to the principal. Na-disbar pa! And there was a
BUT the SC said that if the appeal is only case where the accused was charged with
about the offended party, walang pakialam ang murder, after trial, he was convicted of homicide,
gobyerno diyan! Let the offended party handle hindi pa nakuntento. Nag-appeal pa. Ah! nabalik
his own appeal and let him get his own lawyer to sa murder! Because there is no more double
handle the appeal. So the Court said in the case of jeopardy. You are now waiving everything and
the whole case is now open for review.
BERNARDO vs. COURT OF
APPEALS Q: Now finally, can you withdraw an appeal?
190 SCRA 63 A: YES. The procedure for withdrawing an
appeal is found in Section 12:
HELD: “The Court has clearly
settled the matter by ruling that SEC. 12. Withdrawal of
appeal- Notwithstanding
despite a judgment of acquittal, the perfection of the appeal, the
offended party, private respondent in Regional Trial Court,
the case at bar, may appeal, only Metropolitan Trial Court,
Municipal Trial Court in
insofar as the civil aspect of the case is Cities, Municipal Trial Court,
concerned.” or Municipal Circuit Trial
“Such an appeal dispenses with Court, as the case may be, may
allow the appellant to withdraw
the authority and representation of his appeal before the record
both the fiscal and the Solicitor has been forwarded by the clerk
General, considering that the subject of court to the proper
appellate court as provided in
matter of the action involves solely the section 8, in which case the
interests of the offended party and judgment shall become final.
hence, no longer concerns the State.” The Regional Trial Court may
also, in its discretion, allw
the appellant from the judgment
Let’s go to paragraph [c]: of a Metropolitan Trial Court,
Municipal Trial Court in
(c) Upon perfection of the Cities, Municipal Trial Court,
appeal, the execution of the or Municipal Circuit Trial
judgment or final order Court to withdraw his appeal,
appealed from shall be stayed provided a motion to that
as to the appealing party. effect is filed before
(11a) rendition of the judgment in
the case on appeal, in which
case the judgment of the court
Q: What are the effects of a perfected appeal? of origin shall become final
A: The following are the effects: parang sa and the case shall be remanded
to the latter court for
civil procedure din execution of the judgment.
(12a)
1. The execution of the sentence is
stayed; Now there is one interesting case about
2. The trial court loses jurisdiction over withdrawing an appeal. Definitely, withdrawal
the case because it is now transferred of appeal is your prerogative, eh. If you are
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 181
convicted and you appeal and then later on you
withdraw, that is your prerogative. You are now
accepting the judgement of conviction. Now let’s
see what happened in the 1996 case of
TEODORO vs. COURT OF
APPEALS
258 SCRA 643
FACTS: Amado Teodoro was
charged with the crime of grave
slander by deed before the MTC of
Mandaluyong. He was convicted of
the lesser offense of simple slander by
deed and sentenced to pay a fine of
P110. So mababa. Hindi pa siya
kuntento, Teodoro appealed to the
RTC. Of course, what is the procedure
pag nasa RTC na? – both parties will
prepare a memorandum.
After Teodoro’s lawyer had
received a copy of the appeal
memorandum of the prosecution
where the prosecution urged that
Teodoro be held guilty of grave
slander by deed, not just simple
slander as the MTC, pagbasa niya ng
memorandum ng prosecution, “Naku,
delikado pala ako dito! Basig masamot ba!
So, okay na lang yong simple slander.
Bayad na lang ako ng fine of P110”.
So he filed a motion to withdraw
his appeal. Kay nakita niya, delikado
pala e! Baka mabalik sa dati, sa
original ba. So he is now accepting the
decision. He is now withdrawing his
appeal. Apparently, he realized that
his appeal was likely to result in the
imposition of a higher penalty and he
wanted to avoid that possibility.
HELD: Under Section 12 of Rule
122, the withdrawal of appeal is not a
matter of right, but a matter which lies
in the sound discretion of the court
and the appellate court. After the
parties in this case had been required
to file their memoranda and the
memorandum of the prosecution had
been filed and a copy served on
appellant, it was too late for Teodoro
to move for the withdrawal of the
appeal. It was apparent that
petitioner's motion was intended to
frustrate a possible adverse decision
on his appeal. That is what exactly
happened in this case. Withdrawal of
the appeal at that stage would allow
an apparent error and possibly an
injustice to go uncorrected. Justice is
due as much to the State — the People
of the Philippines — as to the accused.
So even if he is accepting already the lower
penalty, sabi ng Court, hindi na. Nag-file na
yung kabila ng memorandum, eh. So, tuloy na. I
do not know what happened after that but
definitely, he was not allowed anymore to
withdraw the appeal anymore. Yaan! That is the
risk nga of appealing, sometimes.
SEC. 13. Appointment of
counsel de oficio for accused
on appeal - It shall be the
duty of the clerk of court of
the trial court, upon filing of
a notice of appeal to ascertain
from the appellant, if confined
in prison, whether he desies
the Regional Trial Court, Court
of Appeals or the Supreme Court
to appoint a counsel de oficio
to defend him and to transmit
with the record on a form to be
prepared by the clerk of court
of the appellate court, a
certificate of compliance with
this duty and of the response
of the appellate to his
inquiry. (13a)
Now, itong Section 13, it just says about
appointment of counsel de oficio for accused on
appeal.
Let’s say you are convicted here. Appeal ka sa
SC, bigyan ka man ng abogado ba by the SC if
you have no counsel. One of the practitioners in
Manila will be appointed. I’ve seen appeal briefs
filed by counsel de oficio on appeal. And
sometimes, the SC gets big lawyers as counsel the
oficio. Yes, I have seen their briefs . Although, I
believe that these big lawyers in Manila who are
appointed as counsel, mga death penalty cases.
They are the ones who prepare the brief, they are
the ones who sign. But I think an associate in
their law office will help them especially when
they are not handling criminal cases. But you can
see, sometimes they are more effective than a
counsel de parte in the provinces. I’ve seen it,
beautifully worded, ha. Ganda na pagkagawa ng
mga brief.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 182
Now one interesting case about appointment
of counsel de oficio, is what happened in the 1991
case of
PEOPLE vs. RIO
201 SCRA 702
FACTS: The accused was
sentenced to reclusion perpetua. He was
detained at the National Penitentiary.
He appealed. And then later, he wrote
a letter to the SC, “I am withdrawing
my appeal. I am no longer continuing
my appeal because I cannot afford it.
Poverty prevents me from pursuing
the appeal.” The SC got intrigued, ‘no?
The SC issued an order directing the
clerk of Court to go to the National
Penitentiary and look for this accused
to confirm if he did really send this
letter to the Supreme Court.
So hinanap siya. Nakita. You
wrote this letter? “Yes.” You affirm
what you say? “Yes. Hindi ko kaya.
Pobre ako, eh. I cannot afford the
appeal.” So, siya talaga. He is
withdrawing his appeal because of
poverty. And the SC came up with this
decision:
HELD: “The right to a counsel de
oficio does not cease upon the
conviction of an accused by a trial
court. It continues, even during
appeal, such that the duty of the court
to assign a counsel de oficio persists
where an accused interposes an intent
to appeal. Even in a case, such as the
one at bar, where the accused had
signified his intent to withdraw his
appeal, the court is required to inquire
into the reason for the withdrawal.
Where it finds the sole reason for the
withdrawal to be poverty, as in this
case, the court must assign a counsel
de oficio, for despite such withdrawal,
the duty to protect the rights of the
accused subsists and perhaps, with
greater reason. After all, “those who
have less in life must have more in law.”
Justice should never be limited to
those who have the means. It is for
everyone, whether rich or poor. Its
scales should always be balanced and
should never equivocate or cogitate in
order to favor one party over
another.”
So, sabi ng SC, your desire to withdraw
because of poverty, denied! We will continue. We
will appoint a lawyer for you. We will get the
best. So, tuloy ang kaso. And then, after
reviewing the evidence, sabi ng Court: “You are
guilty!” [ha!ha!ha!] Guilty pa rin! But definitely, you
will not be allowed to withdraw. Yes, he was still
found guilty in the case of Rio. Akala niya siguro,
paboran siya ng SC because he is poor. Ah,
hinde. You are still guilty.
Rule 123
PROCEDURE IN THE
MUNICIPAL TRIAL COURTS
SECTION 1. Uniform
Procedure. – The procedure to
be observed in the Metropolitan
Trial Courts, Municipal Trial
Courts and Municipal Circuit
Trial Courts shall be the same
as in the Regional Trial
Courts, except where a
particular provision applies
only to either of said courts
and in criminal cases governed
by the Revised Rule on Summary
Procedure. (1a)
Rule 123 simply says that the procedure to be
observed in the MTC, MTCC and MCTC shall be
the same as in the RTC. So, all the rules that we
took up applies to both courts EXCEPT:
1.) where a particular provision applies only
to either of said courts; and
2.) in criminal cases governed by the Revised
Rules on Summary Procedure.
In the first exception, there are certain
provisions that are applicable only to the RTC.
Example is the provision on bail – how to apply
for bail. If you are denied bail, and you are
charged with a capital offense, there will be a
hearing to determine whether the evidence of
guilt is strong or not. Hindi man yan mag-apply
sa MTC ba because the crime carries the penalty
of death which is exclusive only for the RTC.
The second exception is, you do not apply the
regular rules if the case is governed by the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 183
Revised Rules on Summary Procedure. And that
is what we are going to review now.
Q: What criminal cases should be tried based
on the Revised Rules on Summary Rules?
A: The following:
1.) Violations of traffic laws, rules and
regulations;
2.) Violations of the rental law;
3.) Violations of municipal or city
ordinances; and
4.) All other criminal cases where the
penalty prescribed by law for the
offense charged does not exceed six (6)
months imprisonment or a fine of one
thousand pesos (P1,000.00) or both,
irrespective of other imposable
penalties, accessory or otherwise, or of
the civil liability arising therefrom;
5.) however, that in offenses involving
damage to property through criminal
negligence, said Rule shall govern
where the imposable fine does not
exceed ten thousand pesos
(P10,000.00). So, if it is above P10,000 it
is still MTC but you follow the regular
rules.
Q: What happens if there are 2 cases which
are interrelated or the charges are interrelated for
they arose from the same incident? Like for
example: One case is penalized by fine and
another is penalized by 4 years imprisonment.
Once crime is covered by Summary Rules, the
other is covered by the regular rule. Can they be
mixed?
A: Where there is a joint trial of two criminal
cases, one under the summary rules and the
other one is under the regular rules, we follow
the regular rules. Under the last paragraph of
Section of the Summary Rules, “These rules shall
not apply to a criminal case where the offense charged
is necessarily related to another criminal case subject
to another procedure.”
One of the important principles to remember
here is the case of Zaldivia and Reodica on when is
the running of period of prescription for a crime
deemed interrupted. The ruling in ZALDIVIA vs.
REYES (211 SCRA 277) created the impression
that as a general rule, the filing of the case in the
prosecutor’s office is sufficient to interrupt the
running of the prescriptive period except when
the case is covered by the Rules on Summary
Procedure. If it is any crime, you file it in the
fiscal’s office, the running of the prescriptive
period is interrupted. But if it is covered by the
Summary Rules, the period continues. It must be
the filing of the case in court which will interrupt.
That is the ruling in Zaldivia.
That impression in Zaldivia was clarified in
the 1998 case of REODICA vs. CA (292 SCRA 87)
where the SC said that even if the case is covered
by the Summary Rules for as long as it is a felony
under the RPC, the filing in the fiscal’s office is
sufficient to interrupt the running of the
prescriptive period.
But according to Zaldivia, if it is covered by
the Summary rules, the filing in the fiscal’s office
will not interrupt. But according to the SC in the
case of Reodica, NO! because Zaldivia involves a
violation of municipal or city ordinance.
Therefore, if it is a violation of an ordinance, the
filing in the fiscal’s office does not interrupt the
running of the prescriptive period because the
law on prescription for crimes punishable by a
special law is governed not by the RPC, but by
Act 3326 which is very clear that it is the filing in
court which will interrupt the prescriptive period
for crimes punishable by special laws. Pero kapag
felony, we will still apply the general rule that the
filing in the fiscal’s office is sufficient to interrupt
even if such felony is covered by the Summary
Rules.
Now, let’s go to the provisions of the
Summary Rules concerning criminal cases.
SEC. 11. How commenced. –
The filing of criminal cases
falling within the scope of
this Rule shall be either by
complaint or information.
Provided, however, that in
Metropolitan Manila and in
chartered cities, such cases
shall be commenced only by
information, except when the
offense cannot be prosecuted de
oficio.
The complaint or information
shall be accompanied by the
affidavits of the complainant
and of his witnesses in such
number of copies as there are
accused plus two (2) copies for
the court’s files. If this
requirement is not complied
with within five (5) days from
date of filing, the cases may
be dismissed.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 184
Q: How is a case covered by the Summary
Rules commenced?
A: Affidavit is included, affidavit of
complainant, his witnesses shall be included and
then the court may dismiss the case outright
under Section 12 [a] and [b], otherwise if there is a
case, the accused will be sent a copy of the
affidavit and then he is given 10 days to submit
also his own affidavit.
Then there will be an arraignment under
Section 13; Preliminary conference under Section
14. And Section 15 is important – during the trial,
there is NO DIRECT EXAMINATION. The
affidavit already serves as your direct testimony.
So puro cross-examination na lang. Diretso! So, it
is shortened ‘no? Rather than asking the witness
one by one to tell the story in the affidavit, yang
affidavit na mismo. That will serve as the direct
testimony. Iko-cross-examine na lang.
But there is an important rule here – a witness
who has not submitted any affidavit cannot
testify. So in order to qualify as a witness, you
must have submitted an affidavit beforehand.
The EXCEPTION is the 2nd paragraph of Section
15 – except when the witness is a rebuttal witness
or a surrebuttal witness. This is because how can
you submit a rebuttal affidavit ahead? You do
not even know what to rebut. ANOTHER
EXCEPTION is cited by the SC in the case of
BALAYON, JR. vs. OCAMPO
218 SCRA 13
NOTE: Normally, in physical
injuries cases, the medical doctor is
required to testify.
FACTS: In this case, the doctor
was subpoenaed to testify and the
defense objected because they said
that the doctor has no affidavit and
under the rules, no person may testify
without submitting an affidavit.
HELD: When the doctor is called
upon to testify based on the medical
certificate, the rule as to the prior
submission of affidavit does not apply.
This also applies to the Register of
Deeds or the Provincial Assessors in
connection with official documents
issued by their office.
Now, if you have a surprise witness and you
want to introduce him because his testimony is
very important, the remedy is to file a motion to
present additional evidence. The last paragraph
of Section 15 gives you the authority to manifest
during the preliminary conference that you are
presenting other witnesses, and you are now
submitting their affidavits in order that you will
not be barred from presenting them.
SEC. 16. Arrest of accused. The
court shall not order the arrest of
the accused except for failure to
appear whenever required. Release
of the person arrested shall either
be on bail or on recognizance by
responsible citizen acceptable to
the court.
Section 16 is also important. As a rule, there is
no warrant of arrest if you are tried under the
Summary Rules. You are just notified about the
case. However, if you are notified about the case
and you will not appear, that is the time when
you will be arrested because of “except for failure
to appear whenever required” in which case you
must post bail if you are under arrest or on
recognizance by a responsible citizen acceptable
to the court. This is one of the cases where
recognizance is allowed. But for as long as you
appear in court, there is no warrant to be issued.
Q: Now, what are the PROHIBITED
documents, motions, or pleadings under the
Summary Rules?
A: The following (Under Section 19):
1.) Motion to quash except when your
ground is
a.) lack of jurisdiction over the
subject matter; or
b.) failure to comply with the
Barangay Conciliation;
2.) Motion for bill of particulars;
3.) Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial; your remedy here
is appeal;
4.) Petition for relief from judgement;
5.) Motion for extension of time to file an
affidavit;
6.) Memoranda;
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 185

7.) Petition for certiorari, mandamus, or thirty (30) days from receipt
of the brief of the appellant,
prohibition against any interlocutory the appellee shall file seven
orders issued by the court; (7) copies of the brief of the
8.) Motion to declare the defendant in appellee with the clerk of
court which shall be
default; accompanied by proof of service
9.) Dilatory motions postponements; of two (2) copies thereof upon
10.) Reply; the appellant.
Within twenty (20) days from
11.) Third-party complaints; receipt of the brief of the
12.) Interventions; appellee, the appellant may
file a reply brief traversing
matters raised in the former
So that will be all on Summary Procedure. but not covered in the brief of
the appellant. (4a)
Rule 124 SEC. 5. Extension of time
PROCEDURE IN THE for filing briefs.– Extension
of time for the filing of
COURT OF APPEALS briefs will not be allowed
except for good and sufficient
cause and only if the motion
SECTION 1. Title of the for extension is filed before
case. – In all criminal cases the expiration of the time
appealed to the Court of sought to be extended. (5a)
Appeals, the party appealing
the case shall be called the SEC. 6. Form of briefs.–
"appellant" and the adverse Briefs shall either be printed,
party the "appellee," but the encoded or typewritten in
title of the case shall remain double space on legal size good
as it was in the court of quality unglazed paper, 330 mm.
origin. (1a) in length by 216 mm. in width.
(6a)
SEC. 2. Appointment of
counsel de oficio for the SEC. 7. Contents of brief. –
accused. – If it appears from The briefs in criminal cases
the record of the case as shall have the same contents as
transmitted that (a) the provided in sections 13 and 14
accused is confined in prison, of Rule 44. A certified true
(b) is without counsel de parte copy of the decision or final
on appeal, or (c) has signed order appealed from shall be
the notice of appeal himself, appended to the brief of the
ask the clerk of court of the appellant. (7a)
Court of Appeals shall
designate a counsel de oficio.
An appellant who is not The appellant is the tem applied to the party
confined in prison may, upon making the appeal. Appellee is the term applied to
request, be assigned a counsel
de oficio within ten (10) days the party in whose favor the decision is rendered.
from receipt of the notice to
file brief and he establishes Procedure in the CA. Halos pareho man din.
his right thereto. (2a)
It is almost similar in civil cases. The accused will
SEC. 3. When brief for be required to file his brief (appellant’s brief), to
appellant to be filed. – Within be followed by the appellee’s brief with the
thirty (30) days from receipt
by the appellant or his counsel government, and if possible appellant’s reply
of the notice from the clerk of brief.
court of the Court of Appeals
that the evidence, oral and
documentary, is already Q: Now, who prepares the appellee’s brief?
attached to the record, the A: The Solicitor General. This is their
appellant shall file seven (7)
copies of his brief with the
mastery.
clerk of court which shall be
accompanied by proof of service Normally, the Solicitor General files the brief,
of two (2) copies thereof upon
the appellee.(3a)
maiksi lang masyado. I’ve seen a lot of briefs for
the People of the Philippines. If I can see a brief
SEC. 4. When brief for which does not exceed 15 pages, you are very
appellee to be filed; reply
brief of the appellant.– Within
lucky. Everything is there. Everything is
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 186
condensed. Yet I wonder it takes them several
extensions to file. I don’t think nahirapan silang
mag-file nun. Tamad lang siguro ba. Kaya galit
man ang SC. There are so many SC resolutions
berating the Solicitor General for asking for a lot
of extensions for a very simple matter. They
always claim pressure of work. That’s why the
SC wants also to control the number of extensions
of time.
I have seen a brief prepared by the Solicitor
General in a criminal case. From 45 days,
extension, extension, extension… umabot na
siguro ng 150 days – mga 5 months! Finally, na-
file. When I look at it, 8 pages lang. I was looking
at the brief and then for eevry assignment of error
by the appellant, sinagot niya ng mga dalawang
(2) paragraphs lang. And when I look at the
appellant’s brief, ka-kapal masyado! There are
so many things discussed – why the court is wrong,
why the court made an error. Sinagot ng Solicitor
General, tag 2 or 3 paragraphs lang!
So the appellant’s brief, mga 30 pages or
more. Sinagot ng Solicitor General in 8 pages
only. And then after several years I asked the
defense counsel kung tapos na ba ang kaso mo. O
ano man? “Affirmed.” Meaning, the conviction
was affirmed. That is where you will see that in
order to win a case on appeal, IT IS NOT THE
LENGTH OF THE BRIEF WHICH MATTERS. IT
IS THE SUBSTANCE. Substance is more
important than length. The CA is not impressed
on haba. Mainis pa sila niyan because they have
no time to read. This is a very good lesson: THE
LONGER IS YOUR PLEADING, THE LESS
CHANCES YOU HAVE. That’s how I looked at
it. Even the SC, that’s how they behave.
And there was somebody two weeks ago,
who was asked to prepare a COMMENT. The CA
required that lawyer to comment. “COMMENT…
Pwede na ba ito?” Ano ba yang comment mo?
Gaano kahaba? “Mga 15 pages.” Eh mahaba eh!
Bawat comment niya may citations of authorities.
Sige, paiiksiin natin ha? Tinanggal ko… kadami
kong tinanggal. Umabot ng 3 pages na lang.
“Paano yung iba?” Look, when the CA says, “The
petition is hereby given due course. You are now
required to file MEMORANDA…” that is now
your time. Bombahan mo na! Huwag kang mag-
memorandum-memorandum sa comment. Pag
comment, sabihin mo lang na hindi ito puwede.
“Puwede ko pala tapusin ito in one day?” Of course!
Sabi ko, in the CA or SC, it is not the length of
your pleadings which matters but the substance.
Yan! Alright, let’s go to Section 8.
SEC. 8. Dismissal of appeal
for abandonment or failure to
prosecute. – The Court of
Appeals may, upon motion of the
appellee or motu proprio and
with notice to the appellant in
either case, dismiss the appeal
if the appellant fails to file
his brief within the time
prescribed by this Rule, except
where the appellant is
represented by a counsel de
oficio.
x x x x x
If the appellant will not file his appellant’s
brief, the case is dismissed – same in civil cases –
except where the appellant is represented by
counsel de oficio because the counsel de oficio is
really a court-appointed lawyer. So why will the
accused suffer if the court-designated lawyer is
negligent? But if it is a lawyer of your own choice
who failed to file the brief, then you suffer the
consequence.
Although we are talking of criminal cases, if
you based it on the guidelines, it would seem that
when the CA dismisses the appeal, it should give
a warning to the accused. This is what the SC said
in the case of
FAROLAN vs. COURT OF
APPEALS
February 07, 1995
HELD: “Under Sec. 8 of Rule 124,
the failure to file the appellant's brief
on time may cause the dismissal of the
appeal, upon either the motion of the
appellee or on the own motion of the
appellate court, provided that notice
must be furnished to the appellant to
show cause why his appeal should not
be dismissed.” At least give him a
warning.
“But the exception to this rule has
been clearly stated — i.e. when the
appellant is represented by a counsel
de oficio.”
The second paragraph of Section 8 is more
important:
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The Court of Appeals may
also, upon motion of the
appellee or motu proprio,
dismiss the appeal if the
appellant escapes from prison
or confinement, jumps bail or
flees to a foreign country
during the pendency of the
appeal. (8a)
There is an appeal pending in the CA, the
appellant escaped from prison or jumped bail, or
flees to a foreign country, under the 2nd
paragraph of Section 8, his appeal will be
dismissed. Abandoned na! By his act of running
away, the judgment of conviction will become
final.
This provision prompted the SC to also apply
doon sa promulgation. Under Rule 120, if during
the promulgation the accused disappears, the
promulgation will proceed in absentia and then
the law says the accused forfeits all his remedies.
Why? Kung nag-appeal siya, and then nag-layas
siya, the appeal will be dismissed, lalo na kung di
siya nag-appeal! You will also lose your right to
appeal. The reason according to the SC, once the
accused escaped from prison or confinement or
jumped bail, he loses his standing in court and
unless he surrenders or submits to the jurisdiction
of the court, he is deemed to have waived any
right to seek relief from the court. (Gimenez vs.
Nazareno, 160 SCRA 1)
We will now answer the question of Mr.
Benito:
Q: When a person who is sentenced to death
escaped, can the automatic review still proceed?
Or assuming there is already an automatic review
and while he is in jail, naglayas, and the SC learns
of his escape, what will happen to the automatic
review? Tuloy or dismissed?
A: This is the question which bugged the SC
in the 1996 case of PEOPLE vs. ESPARAS (260
SCRA 539) which was asked in the 1998 bar in
remedial law. The SC here is not unanimous. Six
(6) justices dissented from the majority. There are
two sections compared here – Section 8 of Rule
124 and Section 10 of Rule 122.
PEOPLE vs. ESPARAS
260 SCRA 539 [1996]
ISSUE: Will the SC proceed to
automatically review the death
sentence of an accused who was tried
in absentia and remained at large up
to the present time? Or even if he
appealed, and while the appeal is
pending, he escaped?
HELD: The majority said YES. You
cannot apply Rule 124 because of the
nature of the death penalty. There are
6 justices who disagreed.
“Section 8 of Rule 124 of the Rules
of Court which, inter alia, authorizes
the dismissal of an appeal when the
appellant jumps bail, has no
application to cases where the death
penalty has been imposed. In death
penalty cases, automatic review is
mandatory. This is the text and tone of
Section 10, Rule 122, which is the more
applicable rule.”
Ayun! So there is an applicable
rule and not the general rule in Rule
124. Let’s go to the philosophy of the
ruling:
“There is more wisdom in our
existing jurisprudence mandating our
review of all death penalty cases,
regardless of the wish of the convict
and regardless of the will of the court.
Nothing less than life is at stake and
any court decision authorizing the
State to take life must be as error-free
as possible. We must strive to realize
this objective, however, elusive it may
be, and our efforts must not depend
on whether appellant has withdrawn
his appeal or has escaped. Nor should
the Court be influenced by the
seeming repudiation of its jurisdiction
when a convict escapes. Ours is not
only the power but the duty to review
all death penalty cases. No litigant can
repudiate this power which is
bestowed by the Constitution. The
power is more of a sacred duty which
we have to discharge to assure the
People that the innocence of a citizen
is our concern not only in crimes that
slight but even more, in crimes that
shock the conscience. This concern
cannot be diluted.”
(Of course, the SC anticipated
criticisms – bakit ba masyado kayong
(SC) protective of the rights of the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 188

accused? That is the reason why thereof to the Supreme Court

for review. (13a)
criminality is rampant! But the SC
answered that: )
How can this happen that the CA finds the
“The Court is not espousing a
penalty of death, reclusion perpetua or life
“soft, bended, approach” to heinous
imprisonment should be imposed? This happens
crimes for we have always reviewed
normally in a situation like this: Mr. Concon is
the imposition of the death penalty
charged with murder and the court convicted
regardless of the will of the convict.
him only for homicide – so temporal yan. Where
Our unyielding stance is dictated by
will he appeal? Sa CA because the penalty
the policy that the State should not be
imposed is not death or perpetua. The trouble is
given the license to kill without the
when the CA reviews the case and finds that the
final determination of this Highest
crime should be murder pala!
Tribunal whose collective wisdom is
the last; effective hedge against an
Q: What should the CA do?
erroneous judgment of a one-judge
A: The CA should still decide and lay down
trial court. This enlightened policy
the facts and the law as if it is the SC. And then
ought to continue as our beacon light
the CA should really impose the death penalty or
for the taking of life ends all rights, a
reclusion perpetua. But it should not enter
matter of societal concern that
judgment. After imposing death or perpetua,
transcends the personal interest of a
itapon sa SC, “Please review our work and find
convict. The importance of this societal
out whether we are correct.” Yaan!
value should not be blurred by the
escape of a convict which is a problem
Automatically, the CA will not enter
of law enforcement. Neither should
judgement but should elevate the case. So the SC
this Court be moved alone by the
should have the final say on whether or not to
outrage of the public in the
adopt the findings and conclusions of the CA. But
multiplication of heinous crimes for
definitely, the CA should not shirk from its
our decisions should not be directed
responsibility of deciding the case on its merits
by the changing winds of the social
imposing the correct penalty of death or perpetua.
weather.”
That is that correct procedure under the new
rules.
Meaning, our decision shall not be influenced
by the thinking of the people – social weather.
And I think that is a very nice explanation why
you should not apply Rule 124.
Rule 125
PROCEDURE IN THE
And the last important portion here to master SUPREME COURT
is the second paragraph of Section 13:
SECTION 1. Uniform
SEC. 13. Quorum of the Procedure. – Unless otherwise
court; certification or appeal provided by the Constitution or
of cases to Supreme Court. by law, the procedure in the
X x x x x Supreme Court in original and
in appealed cases shall be the
Whenever the Court of same as in the Court of
Appeals find that the penalty Appeals. (1a)
of death, reclusion perpetua,
or life imprisonment should be SEC. 2. Review of decisions
imposed in a case, the court, of the Court of Appeals. – The
after discussion of the procedure for the review by the
evidence and the law involved, Supreme Court of decisions in
shall render judgment imposing criminal cases rendered by the
the penalty of death, reclusion Court of Appeals shall be the
perpetua, or life imprisonment same as in civil cases. (2a)
as the circumstance warrant.
However, it shall refrain from SEC. 3. Decision if opinion
entering the judgment and is equally divided. – When the
forthwith certify the case and Supreme Court en banc is
elevate the entire record equally divided in opinion or
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 189
the necessary majority cannot
be had on whether to acquit the
appellant, the case shall again
be deliberated upon and if no
decision is reached after re-
deliberation, the judgment of
conviction of lower court shall
be reversed and the accused
acquitted. (3a)
Q: When the penalty imposed by the RTC is
perpetua for example, and since the appeal is
direct to the Supreme Court, then what procedure
will the SC follow? Or when the case was decided
by the CA and you appeal to the SC, what
procedure will the SC follow?
A: Under Section 1, “Unless otherwise provided
by the Constitution or by law, the procedure in the
Supreme Court in original and in appealed cases shall
be the same as in the Court of Appeals.” So there is
no problem, you can apply the previous rule –
filing of brief, how many copies – the same.
Now, let’s go to one interesting ISSUE: Can
you file a motion for new trial of a criminal case
before the SC on the ground of newly discovered
evidence?
In the past, there seems to be conflicting
rulings on that issue. Like for example, if you go
to the 1965 case of GODUCO VS. CA (14 SCRA
282), the SC ruled that the SC is not authorized to
entertain a motion for reconsideration and/or
new trial on the ground of newly discovered
evidence because of the doctrine that the SC is not
a trier of facts – only questions of law are
supposed to be raised before the SC.
However, the Goduco ruling seems to be
relaxed in other cases subsequently to the case of
Goduco. In the case of HELMUTH, JR. VS.
PEOPLE (112 SCRA 573 [1982]), and in PEOPLE
VS. AMPARADO (156 SCRA 712 [1987]), the SC
allowed the motion for new trial based on newly
discovered evidence.
In 1995, that issue came out again in the case
of
CUENCA vs. COURT OF
APPEALS
250 SCRA 485
HELD: Although in “Goduco vs.
CA” (14 SCRA 282 [1965]), this Court
ruled that it is not authorized to
entertain a motion for reconsideration
and/or new trial predicated on
allegedly newly discovered evidence,
the rule now appears to have been
relaxed, if not abandoned, in
subsequent cases like “Helmuth, Jr. vs.
People” and “People vs. Amparado.”
“In both cases, the Court, opting to
brush aside technicalities and despite
the opposition of the Solicitor General,
granted new trial to the convicted
accused concerned on the basis of
proposed testimonies or affidavits of
persons which the Court considered as
newly discovered and probably
sufficient evidence to reverse the
judgment of conviction.”
So we follow the later ruling – relaxed. And I
think that is fair enough for the accused. All the
doubts should be resolved in favor of the
accused.
Rule 126
SEARCH AND SEIZURE
We will now go to Rule 126 – Search and
Seizure. This is one of the most controversial
rules. This is as confusing sometimes as the
jurisprudence on warrantless arrests in Rule 113 –
when may an arrest be made. Ito naman, Rule 126 –
when may there be a valid search and seizure.
Generally, peace officers are not allowed to
conduct search and seizures if they have no
search warrants. So this is again a review of
Constitutional Law.
Q: How do you define a search warrant?
A: You have Section 1:
SECTION 1. Search warrant
defined. – 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 personal property
described therein and bring it
before the court. (1)
Now let’s go to Section 2 which is an entirely
new provision:
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SEC. 2. Court where
application for search warrant
shall be filed.– An application
for search warrant shall be
filed with the following:
(a) Any court within whose
territorial jurisdiction a there is already a case filed in court, then all
crime was committed.
(b) For compelling reasons
stated in the application, any
court within the judicial
region where the crime was
committed if the place of the
commission of the crime is
known, or any court within the
judicial region where the
warrant shall be enforced.
However, if the criminal
action has already been filed,
the application shall only be
made in the court where the
criminal action is pending. (n)
This provision was taken from the ruling of
the SC in the leading case of MALALOAN vs. CA
(232 SCRA 249 [1994]) which was reiterated in the
case of PEOPLE vs. CA (291 SCRA 400).
MALALOAN vs. COURT OF
APPEALS
232 SCRA 249
Q: Can a search warrant issued by
let’s say, a Davao City court be
enforced in any other place outside of
Davao City?
A: YES, because a search warrant
is merely a court process. It should not
be confused with the correct venue for
the filing of the case. But here, there is
no case. We are only talking about
search and seizure which is a mere
court process. It has nothing to do
with the filing of a criminal case. So
you cannot limit the power of the
search warrant only within the place
where the crime was committed.
Furthermore, search warrants are
usually applied by law enforcement
officers and it is too much to require
peace officers to know in advance
where is the probable venue of the
criminal case. And based on the
interim rules, there is a statement
there that “xxx writs of certiorari,
prohibition, habeas corpus, etc… of the
RTC are enforceable only within the
region. All other writs or processes are
enforceable throughout the country.” And
a search warrant fall under the general
provision “all other writs xxx”.
Of course, under the last paragraph, when
search warrants in connection with a pending
case can only be issued by the court where the
case is pending. This was also taken in Malaloan.
So that is the history of that provision.
SEC. 3. Personal property to
be seized. – A search warrant
may be issued for the search
and seizure of personal
property:
(a) Subject of the offense;
(b) Stolen or embezzled and
other proceeds, or fruits of
the offense; or
(c) Used or intended to be
used as the means of committing
an offense. (2a)
Take note that only personal property may be
seized pursuant to a search warrant. lets us
connect this with Section 4:
SEC. 4. Requisites for
issuing search warrant. – A
search warrant shall not issue
except upon probable cause in
connection with one specific
offense to be determined
personally by the judge after
examination under oath or
affirmation of the complainant
and the witness he may produce,
and particularly describing the
place to be searched and the
things to be seized which may
be anywhere in the Philippines.
(3a)
SEC. 5. Examination of
complainant; record. – The
judge must, before issuing the
warrant, personally examine in
the form of searching questions
and answers, in writing and
under oath, the complainant and
the witnesses he may produce on
facts personally known to them
and attach to the record their
sworn statements, together with
the affidavits submitted. (4a)
Q: What are the requisites for the issuance of
a search warrant?
A: There are five (5) requisites for the issuance
of a search warrant:
1. There must be an application which must
be under oath;
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2. There must be an affidavit in support of
the application. The affidavit must be
based on the personal knowledge of the
affiant.
That is why under Section 5, the
judge must, before issuing the
warrant, personally examine in the
form of searching questions and
answers, in writing and under oath,
the complainant and his witnesses to
find out what the affiant really know
what he is talking about. And
everything must be reduced in
writing.
Now, you cannot apply here in
Rule 126 the ruling in Lim vs. Felix that
a judge can just look at the affidavits
and determine whether to issue or not
to issue a warrant of arrest. The ruling
in Lim is based on the issuance of
warrant of arrest after preliminary
investigation. But we are talking here
(Rule 126) of a search warrant. Here, it
must be literal – there must really be a
personal examination.
3. The search warrant must particularly
describe the place or the person to be
searched and the things to be seized;
4. There is probable cause for its issuance;
Q: What do you mean by probable
cause for the purpose of issuing a
search warrant?
A: Probable cause refers to such
facts and circumstances which could
lead a reasonably discreet and prudent
man to believe that an offense has
been committed and that the item(s),
article(s) or object(s) sought in
connection with said offense or subject
to seizure and destruction by law is in
the place to be searched. (People vs.
Encinada, October 2, 1997).
In one case, the SC said that
probable cause does not mean actual
and positive cause, nor does it import
absolute certainty. The requirement is
less than certainty or proof, but more than
suspicion or possibility. (Columbia
Pictures vs. CA, August 26, 1996)
5. The search warrant shall be issued in
connection with but one offense.
So for example, I suspect that in
your building, there are many objects
there. There are unlicensed firearms.
Meron din diyan shabu. And there are
also smuggled goods. So three laws
are violated – illegal possession of
firearms, prohibited drugs, and
customs law.
So gawa tayo ng isang search
warrant lang to seize those objects –
shabu, firearms, smuggled goods – ah
hindi puwede yan! because “one
search warrant, one offense.” So there
must be three different search
warrants. Otherwise the search
warrant is a general warrant which is
prohibited under the Constitution.
And one of the leading case regarding on that
issue is the case of STONEHIILL vs. DIOKNO (20
SCRA 383) where a search warrant was issued
against an American businessman who had a
violation daw ng NIRC, RPC, etc. – gi-one time
ba! And it was declared as null and void by the
SC because there were so many items which were
allegedly seized in connection with violation of
different laws like NIRC, RPC, Central Bank Act.
That is a general warrant.
However, if we go by jurisprudence on
general warrants, it is not really necessary that in
order to be classified as a general warrant, it was
issued for several offenses under different laws.
For example in the case of
BURGOS, SR. vs. CHIEF OF
STAFF
December 26, 1984 (134 SCRA)
FACTS: A search warrant was
issued to raid the editorial offices of
Metropolitan Mail and We Forum
(predecessor of Malaya) somewhere in
Quezon City. What were going to be
confiscated were materials, pamphlets,
printing machines to stop the paper
from publishing on the alleged
violation of Anti-Subversion Act (PD
885) during the time of Marcos.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 192
Burgos challenged the validity of the
search warrant before the SC.
ISSUE #1: According to Burgos,
“You cannot seize those things
because I am not the owner of those. I
am just leasing them.” Can you only
seize from somebody objects which he
owned?
HELD: NO, because there is no
provision in the law to that effect. And
under Section 3, you can seize “stolen
or embezzled and other proceeds, or fruits
of the offense.” For example, you can
issue a warrant to seize stolen
property from a thief or robber. Is the
thief or robber the owner the owner of
those stolen property? Of course not!
So, there is no requirement that you
can only seize it from its owner. Talo si
Burgos sa issue na yan.
ISSUE #2: According to Burgos,
you cannot seize the printing
equipments because under the law
you can only seize personal property.
These printing machines are all
attached to the building and under the
law on Property, when a machinery is
attached to the immovable, it becomes
immovable or real property also. And
you cannot seize a real property.
HELD: You are correct BUT there
is an EXCEPTION – if the machine is
attached by somebody who is not the
owner of the building, then the
machine is still a movable property.
So, tinamaan na naman siya dun.
ISSUE #3: Was the search warrant
a general warrant?
HELD: YES. What were seized
were paraphernalia, pamphlets,
printing machines, etc. which,
according to the search warrant, were
used in committing the crime of
subversion under PD 885. So there is
only one law violated unlike in the
case of Stonehill na marami.
But sabi ng SC, the search warrant
is a general warrant. It is true that
there is only one law violated but
there are many sections in the Decree.
You must allege the section violated,
otherwise it becomes a general
warrant.
So if you just say that the search warrant is for
violation of a law, then that is a general warrant.
You must point out the section which was
allegedly violated. So in the case of Burgos, the
search warrant was declared as a general warrant
inspite of the fact that only one law was violated.
As a matter of fact, the concurring opinion of
former Justice Abad Santos was clearer eh. He
said, “In the case at bar nothing specifically
subversive has been alleged; stated only is the
claim that certain objects were being used as
instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as
amended. There is no mention of any specific
provision of the decree. It would be legal heresy,
of the highest order, to convict anybody of
violating the decree without reference to any
determinate provision thereof.
“The obvious question is: Why were the
documents, pamphlets, leaflets, books, etc.
subversive? What did they contain to make them
subversive? There is nothing in the applications
nor in the warrants which answers the questions.
I must, therefore, conclude that the warrants are
general warrants which are obnoxious to the
Constitution.”
Let’s distinguish Burgos in the case of
OLAES vs. PEOPLE
155 SCRA 486 [1987]
FACTS: The caption of the search
warrant states that it is in connection
with “Violation of RA 6425, otherwise
known as the Dangerous Drugs Acts
of 1972.” The text of the warrant
however says, “There is probable
cause to believe that Olaes has in his
possession and control and custody of
marijuana dried
stalks/leaves/seeds/cigarettes and
other regulated/prohibited and
exempt narcotics preparations which
is the subject of the offense stated
above.” Olaes argued that the warrant
is a general warrant because it does
not specifically point to certain
provisions in the Dangerous Drugs
Act.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 193
HELD: Olaes is correct BUT there
is only once section in marijuana. So
what are we talking? So, even if it is
not mentioned, it is understood that it
points to marijuana.
PEOPLE vs. DICHOSO
223 SCRA 174
FACTS: A search warrant was
issued for the seizure at Dichoso
residence of shabu, marijuana,
paraphernalia, etc. Dichoso argued
that his illegal possession of shabu,
marijuana and paraphernalia are
covered by different articles and
sections of the Dangerous Drugs Act.
Hence, the warrant is a general
warrant.
HELD: Teka muna! Marijuana is
regulated, shabu is also prohibited.
But they both of them belong to one
family – dangerous drugs. So
magkapatid man yan! Pareho na rin
iyan!
“The Dangerous Drugs Act of 1972
is a special law that deals specifically
with dangerous drugs which are
subsumed into "prohibited" and
"regulated" drugs and defines and
penalizes categories of offenses which
are closely related or which belong to
the same class of species. Accordingly,
one (1) search warrant may thus be
validly issued for the said violations of
the Dangerous Drugs Act.”
PRUDENTE vs. DAYRIT
180 SCRA 69 (1989)
FACTS: The application for search
warrant was captioned: “For Violation
of PD No. 1866 (Illegal Possession of
Firearms, ETC.)” And what were
taken were firearms and explosives.
The validity of the search warrant was
questioned on the ground that there
are two different violations – firearms
and explosives.
HELD: “Such illegal possession of
items destructive of life and property
are related offenses or belong to the
same species, as to be subsumed
within the category of illegal
possession of firearms, etc. under P.D.
No. 1866.”
So the word “etcetera” covers them
all.
Another interesting case is the 1988 case of
Twentieth Century Fox vs. CA (164 SCRA 655),
reiterated in Columbia Pictures vs. Flores (June 29,
1993). It refers to a violation of PD 49 (otherwise
known as the Decree on the Protection of
Intellectual Property) on anti-film piracy during
the height of betamax tapes.
TWENTIETH CENTURY FOX vs.
COURT OF APPEALS
164 SCRA 655
FACTS: A search warrant was
issued for alleged violation of Anti-
Piracy Law. The things to be seized
were video tapes, television sets, video
cassette recorders, rewinders, tape
cleaners, and almost everything.
HELD: The warrant is general. It is
void. Why? Of course, if you seize the
tapes, puwede pa yan. But why will
you seize television sets, video cassette
recorders, rewinders, etc? Are they
illegal objects?
“Television sets, video cassette
recorders, rewinders and tape cleaners
are articles which can be found in a
video tape store engaged in the
legitimate business of lending or
renting out betamax tapes. In short,
these articles and appliances are
generally connected with, or related to
a legitimate business not necessarily
involving piracy of intellectual
property or infringement of copyright
laws. Hence, including these articles
without specification and/or
particularity that they were really
instruments in violating an Anti-
Piracy law makes the search warrant
too general which could result in the
confiscation of all items found in any
video store.”
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 194
PEOPLE vs. COURT OF
APPEALS
216 SCRA 101
FACTS: The body of the search
warrant stated was that the items were
“Stolen or Embezzled and proceeds or
fruits of the offense, used or intended
to be used as the means of committing
the offense.” So, practically, the
policeman copied the whole of Section
3.
HELD: The warrant is void. “The
warrant was a scatter-shot warrant
that could refer "to robbery, theft,
qualified theft or estafa." On this score
alone, the search warrant was totally
null and void.”
SEC. 6. Issuance and form of
search warrant. – If the judge
is satisfied of the existence
of facts upon which the
application is based or that
there is probable cause to
believe that they exist, he
shall issue the warrant, which
must be substantially in the
form prescribed by these Rules.
(5a)
SEC. 7. Right to break door
or window to effect search. –
The officer, if refused
admittance to the place of
directed search after giving
notice of his purpose and
authority, may break open any
outer or inner door or window
of a house or any part of a
house or anything therein to
execute the warrant to liberate
himself or any person lawfully
aiding him when unlawfully
detained therein.
SEC. 8. Search of house,
room, or premises to be made in
presence of two witnesses. – No
search of a house, room, or any
other premises shall be made
except in the presence of the
lawful occupant thereof or any
member of his family or in the
absence of the latter, two
witnesses of sufficient age and
discretion residing in the same
locality. (7a)
Remember there is a similar provision in the
RPC (violation of domicile). Even if there is a
search warrant, you cannot search the house
without the presence of the owner or the
occupant of the house. Or if nobody is around,
the searching officer must secure 2 witnesses, 2
members of the neighborhood. They cannot
search on their own without any witnesses.
Q: What is the reason?
A: In order that the searching party will not
just get anything which is not the subject of the
warrant. This usually happens. You supposed to
search for marijuana, but you brought along the
refrigerator. One reason also is to prevent the
planting of evidence.
One interesting case here is
QUINTERO vs. NBI
162 SCRA 467
FACTS: NBI raiders went to
search a house by virtue of a search
warrant. What the NBI did, because
there were so many rooms, was they
conducted the search simultaneously.
One NBI searching the room and the
other in another room.
HELD: That type or procedure is
wrong because how can the witnesses
be present everytime the search is
made when one is in the other room
and the others in another room. “Such
a procedure, wherein members of a
raiding party can roam around the
raided premises unaccompanied by
any witness, as the only witnesses
available as prescribed by law are
made to witness a search conducted
by the other members of the raiding
party in another part of the house, is
held to be violative of both the spirit
and the letter of the law, which
provides that no search of a house,
room, or any other premises shall be
made except in the presence of at least
one competent witness, resident of the
neighborhood.”
SEC. 9. Time of making
search. – The warrant must
direct that it be served in the
day time, unless the affidavit
asserts that the property is on
the person or in the place
ordered to be searched, in
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 195
which case a direction may be
inserted that it be served at
any time of the day or night.
(8)
Now, let’s go to a very important provision –
Section 10:
SEC. 10. Validity of search
warrant. – A search warrant
shall be valid for ten (10)
days from its date. Thereafter,
it shall be void. (9a)
A search warrant has a lifetime only of ten
(10) days. Compare that with the lifetime of a
warrant of arrest under Section 4 of Rule 113.
Under Rule 113, the 10-day period does not mean
to say that the warrant of arrest is only good for
10 days. It is only a directive that you will enforce
it within 10 days. If you cannot arrest, di bayaan
mo! Keep it and try to arrest the accused in the
future.
But a search warrant, iba – talagang 10 days
lang. Thereafter, it shall be void. Does this mean
to say that you can use a search warrant everyday
for 10 days? NO. You can use it once for 10 days.
But it does not mean you can use it everyday or
for the next 10 days.
One interesting case on the issue of the 10-day
period on search warrants is the 1996 case of
MUSTANG LUMBER, INC. vs.
COURT OF APPEALS
257 SCRA 430 [1996]
FACTS: A search warrant was
secured on a certain date and enforced
the same on the same day. But the
raiding team could not finish the
search in one day. So they postponed,
“bukas naman ituloy.”
ISSUE: Can you still continue
tomorrow? Or must you finish
everything today?
HELD: Under the Rules of Court, a
search warrant has a lifetime of ten
days. Hence, it could be served at any
time within the said period, and if its
object or purpose cannot be
accomplished in one day, the same
may be continued the following day or
days until completed. Thus, when the
search under a warrant on one day
was interrupted, it may be continued
under the same warrant the following
day, provided it is still within the ten-
day period.
Yaan! So that is the correct interpretation of
the 10-day period. Hindi naman kailangan na you
have to finish everything on the same day. You
may still continue tomorrow but be sure that
tomorrow is still within the 10-day period.
Suppose you cannot finish naman tomorrow?
Continue on the next day? Puydi! – tuloy! basta
within the 10-day period.
SEC. 11. Receipt for the
property seized.– The officer
seizing the property under the
warrant must give a detailed
receipt for the same to the
lawful occupant of the premises
in whose presence the search
and seizure were made, or in
the absence of such occupant,
must, in the presence of at
least two witnesses of
sufficient age and discretion
residing in the same locality,
leave a receipt in the place in
which he found the seized
property. (10a)
SEC. 12. Delivery of
property and inventory thereof
to court; return and
proceedings thereon. – (a) The
officer must forthwith deliver
the property seized to the
judge who issued the warrant,
together with a true inventory
thereof duly verified under
oath.
(b) Ten (10) days after
issuance of the search warrant,
the issuing judge shall
ascertain if the return has
been made, and if none, shall
summon the person to whom the
warrant was issued and require
him to explain why no return
was made. If the return has
been made, the judge shall
ascertain whether section 11 of
this Rule has been complied
with and shall require that the
property seized be delivered to
him. The judge shall see to it
that subsection (a) hereof has
been complied with.
(c) The return on the search
warrant shall be filed and kept
by the custodian of the log
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 196
book on search warrants who
shall enter therein the date of
the return, the result, and
other actions of the judge.
A violation of this section
shall constitute contempt of
court. (11a)
Q: After the search warrant has been
implemented, what happens next?
A: Under Section 11, the officer must give a
receipt to the owner or person from whom he
took it or to the witness. And under Section 12
[a], the officer must forthwith deliver the
properties seized to the judge who issued the
warrant together with a true inventory thereof
duly verified under oath. So, receipt and then
deliver.
Now, there are two new paragraphs, inserted
in Section 12—paragraphs [b] and [c] – that there
is a deadline for the officer to submit this report
and to make a return of the warrant. There is a
deadline for him to do that. And the last portion
of Section 12 says:
“A violation of this section shall
constitute contempt of court.”
I do not know the reason behind this
amendment. I presume it was inserted by the SC
maybe because in other places after the search
warrant has been implemented, the court never
knew what happened to the warrant, all the
things were appropriated by the officer, they
were not turned over to the court. Maybe because
of such experience, the SC decided to give a
deadline for the turnover of all the properties
seized and for the report. That’s only my
conjecture, ‘noh?
Let’s go to some interesting cases regarding
these personal properties subject of a search
warrant.
WASHINGTON DISTILLERS
INC. vs. COURT OF APPEALS
260 SCRA 821 [1996]
FACTS: This involves a controversy
between Washington Distillers and La
Tondeña Distillers. Obviously, their
products are spirits and wine.
According to La Tondeña Distillers, the
bottles that Washington Distillers uses
for their products are actually La
Tondeña bottles. They buy empty
bottles, lilinisin nila, and they use them
to serve their products. Nagreklamo ang
La Tondeña because those are their
bottles, of course.
One of the issues here is whether
you can still claim the bottles,
binayaran na yan eh. When the buyer
bought the product, he already paid
for the bottle, so why are you
complaining? So that was the issue
‘noh?
So La Tondeña decided to apply
for a search warrant to raid the
premises of Washington Distillers to
recover all these bottles. And there
was really a raid and so many bottles
where taken from the premises of
Washington Distillers. All those
bottles were turned over to La
Tondeña.
Now, Washington Distillers
questioned the act of turning over the
bottles to La Tondeña. Of course, the
issue is ownership. Admittedly, these
are your bottles but when the
customers bought those bottles and
the contents you can no longer claim
ownership over those bottles. More or
less that is the issue. So they were
quarreling over the issue of
ownership.
Now, Washington Distillers
secured the services of Estelito
Mendoza on this issue. Medoza
questioned the action of La Tondeña
in trying to get the bottles.
HELD: Estelito Mendoza was
sustained in the SC. Why? Because if
we are quarreling about the issue of
ownership of the bottles, then there
should be another case for replevin.
Or, the bottles are in the possession of
the government, the La Tondeña
should file action for interpleader to
determine who really owns the bottles.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 197
But you cannot use a mere search
warrant to resolve the issue of
ownership. A search warrant is only to
get the property, but it does not have
the same effect as a writ of replevin.
“A search warrant proceeding is
not a criminal action, much less a civil
action. It is a special criminal process,
the order of issuance of which cannot
and does not adjudicate the
permanent status or character of the
seized property. It cannot therefore be
resorted to, as was done here by La
Tondeña Distillers, as a means of
acquiring property or of settling a
dispute over the same. The proper
remedy is for private respondent or
for the Government itself, assuming
the role of a stakeholder, to bring the
appropriate action.”
So that is a very nice case, ‘noh? There is also
another interesting issue in the case of
Washington Distillers which was also raised by
Mendoza:
WASHINGTON DISTILLERS
INC. vs. CA (supra)
FACTS: According to Mendoza,
the application for search warrant is
void or it should have been rejected
because when the peace officer
applied for the search warrant, there
was no certification on non-forum
shopping. Kaya sabi ni Mendoza,
“How do we know? You might have
also applied for search warrant in
another court. So, you must certify
that you have not filed any other
application for search warrant before
any other court.” That is a very unique
argument.
Sabi ng other party, “No, hindi
yan applicable. Hindi man kaso ito.
I’m not filing a complaint or a petition
where I will include a certification on
non-forum shopping. This is just an
application for a search warrant.”
ISSUE: Does the rule on non-
forum shopping certification also
apply to search warrant?
HELD: YES, because does the law
requires parties to certify under oath
that they have not “theretofore
commenced any other action or
proceeding involving the same issues
in the Supreme Court, the Court of
Appeals, or any other tribunal or
agency” and that to the best of their
knowledge “no such action or
proceeding is pending” in said courts
or agencies. Di ba that’s the language
of forum shopping?
“Indeed, the policy against
multiple court proceedings clearly
applies to applications for search
warrants. If an application for search
warrant can be filed even where there
are other applications pending or
denied in other courts, the situation
would become intolerable.” And what
is the certification – ‘that I have not
filed any other action or proceeding’.
YOOON! ‘PROCEEDING’! An
application for a search warrant is a
court proceeding which is covered by
the rule on forum shopping.
So that was the ruling of the SC in this case.
That’s why you will see how analytical and
brilliant Estelito Mendoza is. Makita niya ang
mga ito. In other words, he can really detect these
points which normally other lawyers will not be
able to detect. Magaling man talaga yan siya ba.
Nasira lang yan siya sa impeachment trial. He’s
unpopular…pero he’s really very good.
Compared to the prosecution panel, na outclass
talaga yun. Walang laban yun. When I read it,
grabeh talaga itong argument niya kung saan
niya pinulot ito. And he has been sustained in the
SC. Alright.
Did I tell you about somebody from Davao
who wanted to get the services of Mendoza?
Wala, ayaw tanggapin. If not for the
recommendation of one of his closest friends in
Davao. Sabi niya, we do not accept for the
moment because of the impeachment trial, we’re
all busy. He’s busy. “I’m paying!” How much?
“Two million? Three Million? I’ll pay na!” No, wala,
ayaw tumanggap ni Mendoza. That’s very small
to him. Alright.
Let’s go now to the most controversial
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 198
provision – Section 13 – The issue on Warrantless
Search and Seizure.
SEC. 13. Search incident to
lawful arrest. – A person
lawfully arrested may be
searched for dangerous weapons
or anything which may have been
used or constitute proof in the
commission of an offense
without a search warrant. (12a)
Q: When may a search and seizure be effected
without a search warrant?
A: Section 13 - when it is merely incidental to
a lawful arrest. A person lawfully arrested may
be searched for dangerous weapons or anything
which may be used or constitute proof in the
commission of an offense without a search
warrant.
This is because it’s absurd, ‘noh? if I’m
arresting a criminal by virtue of a warrant, or the
arrest is valid with no warrant (because that
would be valid arrest without a warrant) he
might be holding a gun or a knife. And if you do
not search him, he might stab the arresting
officer. And it would be absurd to say, “ok, you
can arrest me because of your warrant of arrest, but
you cannot search me because you have no search
warrant.” So you ask the policeman to go back to
court to get the search warrant. There’s
something wrong there. Yung search, dala na
yun! When the arrest is valid or lawful,
automatically the search becomes also lawful.
That is why in most cases involving search
and seizures, the target of the person against
whom something is taken is the validity of the
arrest. Because once he can prove that the arrest is
not valid, then automatically the accompanying
search is not also valid. Because, no valid arrest
means no valid search and seizure. That is the
pattern.
There are so many cases here. I’m just
choosing the interesting ones.
UY KHEY TENG vs. VILLAREAL
42 PHIL 886
FACTS: This is a very old case,
already asked in the bar. There was a
search warrant issued by the court to
search a building somewhere in
chinatown in Binondo, Manila on the
ground that there was opium or other
drugs in that house. So the raiding
party went to the house and
announced to the owner that they
have a search warrant. So the owner
had no choice but to allow the search.
They searched the premises, they did
not find any opium. Wala! But,
instead, what they found were
firearms – unlicensed firearms. And
because they discovered the presence
of these firearms, they arrested the
accused for illegal possession of
firearms and seized all his firearms.
There were two questions which
were asked in the bar—
ISSUE #1: Can the peace officers
seized the firearms by virtue of the
search warrant?
HELD: NO, Because a search
warrant can only issue for one offense.
The offense was possession of opium
or drugs. It cannot be used to seize
firearms. So the firearms cannot be
seized by virtue of the warrant.
ISSUE #2: Would you say
therefore that the seizure of these
firearms is illegal?
HELD: NO. It is valid because in
the course of their search for opium,
they discovered another crime – illegal
possession of firearms. And since they
discovered the commission of another
crime, they have the authority THEN
AND THERE to arrest the owner
because the crime is being committed
in their presence. So there is a valid
warrantless arrest. And since there is a
valid warrantless arrest, automatically
there is also a valid warrantless
seizure. So, dun nahuli. What gives
the peace officers the authority is not
the search warrant, but the fact that it
becomes merely incidental to the
arrest of the accused.
Let’s go now to other cases. We are
concentrating on the question of whether there is
a valid seizure. Whether you can say that the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 199
seizure is incidental to an arrest.
PEOPLE vs. CENDAÑA
October 17, 1990
FACTS: Somebody was killed and
the accused was arrested the following
day. He was arrested on the basis of
information obtained by police officers
from unnamed sources. Of course,
when they arrested him inside his
house nakita nila yung baril talaga
doon. There was really a gun which
they believed to be the very gun used
to kill the victim. So they seized it.
ISSUE: Was there a valid seizure?
Walang warrant, eh. We go back, we
have to determine whether there was
also a valid arrest. Remember wala din
silang warrant eh, when they arrested
him. You go back to Rule 113. Is there
a valid warrantless arrest?
HELD: No valid arrest. “Accused-
appellant was arrested one day after
the killing of the victim and only on
the basis of information obtained by
the police officers from unnamed
sources. These abovementioned
circumstances clearly belie a lawful
warrantless arrest.” It is not
sanctioned by Rule 113. So kapag
bagsak ang arrest, bagsak din
automatically ang seizure.
“Considering that the arrest of
accused-appellant herein was
unlawful, any search conducted on his
person or place of arrest which is an
incident thereof, was also unlawful.
Perforce, any evidence recovered
during the unlawful search, being
made without a warrant, becomes
inadmissible in evidence against
accused-appellant and the shotgun
which was allegedly the fatal weapon
cannot be presented against him.”
PEOPLE vs. CATAN
205 SCRA 235
FACTS: Rogelio Catan was
entrapped by two NARCOM poseur-
buyers in a buy-bust operation right
inside Catan’ s house. The NARCOM
agents pretended to be addicts.
Pagbigay, HULI! After the arrest, the
NARCOM agents searched the
premises and recovered more
marijuana. Catan asserted that the
search of his premises was illegal.
If you look at the law, what can
you search? The search is valid, di ba?
He may be search for dangerous
weapons or anything which may
constitute proof. What was search was
the premises. Dun nakita yung
maraming marijuana, eh. What was
taken from him, maliit lang. Dun siya
tinamaan ng illegal possession,
because of the quantity.
So Catan was questioning the
search because you did not search my
body! You searched my premises.
HELD: VALID! When you say
search of the person, it INCLUDES the
immediate premises because for all
you know, walang baril, pero yung
baril pala nasa drawer niya at
gagamitin sa iyo. So it includes the
surrounding premises. That is covered
by the incidental search.
Catan is wrong. “Appellant was
arrested in flagrante delicto in the act of
selling and delivering marijuana to the
poseur-buyers. His case therefore falls
under the category of a valid
warrantless arrest. The subsequent
search of his house which immediately
followed yielding other incriminating
evidence was a search
contemporaneously made and as an
incident to a valid warrantless arrest
in the immediate vicinity where the
arrest was made. That is a recognized
exception to the general rule that any
search and seizure must be supported
by a valid warrant.” That is the
general rule.
When you say incidental search, it does not
only refer to kapkapan mo yung tao. Pati
immediate vicinity is included because
remember, he may have dangerous weapons in
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 200
his body which he can use against you. But the
dangerous weapon may not be in his body but
within the immediate premises. That is what the
SC said. The same rule or pattern emerged in the
case of:
PEOPLE vs. LI WAY CHUNG
214 SCRA 431 [1992]
FACTS: Search without warrant of
the appellant’s dwelling. Appellant’s
dwelling is just a single-room unit,
which is around 9 square meters.
Maliit lang yung kwarto ng accused.
They searched the room and found
out evidence.
HELD: “The search without a
warrant of appellant’s dwelling, a
single room unit with a total area of 9
sq. m. was a valid as an incident of a
lawful warrantless arrest. The search
was conducted in a confined place
within appellant’s immediate control,
an area where he might gain
possession of a weapon.”
PEOPLE vs. GERENTE
219 SCRA 756
FACTS: A witness testified that at
7 o’clock in the morning, she saw three
persons started drinking liquor and
smoking marijuana and overheard
them killing Clarito Blace. Narinig
lang niya. Nine hours after, or at 4
P.M., the police received a report of a
mauling incident. So a police
investigator went to the hospital
where the victim was brought and was
told that the victim died on arrival.
Patay na! Police investigator and his
companions proceeded to the scene of
the mauling and there they were
informed by the witness that she saw
the killing and pointed to Gabriel
Gerente, as one of the three men who
killed Blace.
The policemen went to the house
of Gerente who was then sleeping,
asked the latter to come out, and when
he did, he was placed under arrest. He
was frisked, the police finding in his
pocket a coin purse containing dried
leaves wrapped in a foil. The dried
leaves turned out to be marijuana after
laboratory examination.
So he was arrested for the killing,
ang nakuha sa kanya is a coin purse
containing marijuana. So dalawa na
kaso niya.
ISSUE #1: Was the warrantless
arrest of Gerente lawful?
HELD: YES! The eye witness Edna
Edwina Reyes reported the happening
to the policemen and pin-pointed her
neighbor Gerente as one of the killers.
Since the policemen have personal
knowledge (YUN!) of the violent
death of Blace, and of facts indicating
that Gerente and two others are guilty.
We’re going back to Rule 113 – what
do you mean by personal knowledge
or probable cause…they could
lawfully arrest Gerente without a
warrant. If they had postponed his
arrest until they could obtain a
warrant, he would have fled like his
companions na nakasibat na.
ISSUE #2: May the marijuana be
validly used as evidence in a
prosecution for illegal possession of
dangerous drugs? Was the marijuana
validly seized?
HELD: YES. The search conducted
on Gerente’s person was likewise
lawful because it was made as an
incident to a valid arrest. It was in
accordance with Section 12, Rule 126,
citing the case of Adams vs. Williams,
an American case: “It was ruled that
the individual being arrested may be
frisked for concealed weapons, that
may be used against the arresting
officer, and all unlawful articles found
in his person or within his immediate
control may be seized.”
PEOPLE vs. QUIZON
256 SCRA 325 [1996]
NOTE: The guideline in order not
to be lost is placed here nicely. The
guideline given by the SC is this—it is
wise to remember this, because as we
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 201
said, ang premise natin only the arrest
eh.
HELD: “It is beyond cavil that a
lawful arrest must precede the search
of a person and his belongings. Where
a search first undertaken, then an
arrest effected based on evidence
produced by the search, both such
search and arrest would be unlawful,
for being contrary to law.”
You get that? Unahin muna ang arrest—
lawful—and then search. If you will search, and
in the process of searching you discover
something and you will arrest him… aba, hindi
puwede because how can you say that the search
was incidental to a lawful arrest eh nauna yung
search kaysa arrest? So, unlawful pareho. The
arrest must precede the search, not the search
preceding the arrest. Do not search him in the
hope that you will discover something unlawful.
INSTANCES OF VALID WARRANTLESS
SEARCH
Q: Suppose you will be asked this question:
What are the instances under the law when there
could be a valid seizure without a search
warrant? What are the instances when there
could be a valid warrantless search and seizure?
A: The following are the instances:
1. When the search is merely incidental
to a valid arrest (Section 13);
2. Stop And Frisk Rule;
3. Search of moving vehicles;
4. Evidence in plain view;
5. Customs searches;
6. Consented search;
7. Exigent searches or searches during
emergency circumstances
STOP AND FRISK RULE
The Stop and Frisk Rule was taken by the SC
from a leading American case, TERRY VS. STATE
OF OHIO (392 US 1, 20 L Ed 2d 889, 88 S Ct 1868)
cited in the case of PEOPLE VS. MALMSTEDT
(198 SCRA 401) and POSADAS VS. CA (180
SCRA 283)
In the 1995 or 1996 bar, the very first question
in Remedial Law was: Explain what is meant by the
Terry Search.
Ay, maraming tinamaan dun. Ano ba ito?
How do you explain the process of Stop and Frisk
which is one of the instances where the
warrantless search may be allowed? If you do not
know your constitutional law, patay ka!
Now, ano ba itong Terry Search? Alam natin
yung Stop and Frisk. There are many factors there
to consider. First, that is normally applied to
peace officers. When they see someone acting
suspiciously at the wrong time and at the wrong
place. For example, you are patrolling in the
middle of the night then you see somebody in the
dark. That will invite your attention. And then,
the Terry Search says you must ask questions first
– What is your name? Why are you here in the middle
of the night? Hindi ka puwedeng mag-kapkap
kaagad. Magtanong ka muna. Find out whether
you are satisfied with his answers. Now, if
somehow you doubt his answer—like if he is
wearing a big jacket and trying to hide
something—ayan na! You can say “I will frisk
you”.
The guideline here is the appearance of the
person, the time, the occasion of the search. And
you have to limit first your observation on the
outer garments. But you have to consider also,
according to the SC, the experience of the peace
officer. Because peace officer, somehow, they
have sixth sense eh when it comes to shady
characters. These are the factors which should be
taken into consideration, then stop and frisk.
Kapkapan mo. Now suppose in doing that,
firearm is taken, or anything, pwede. He cannot
say inadmissible. Under the second exception ito
(Stop and Frisk).
Now we’ll illustrate some cases to
demonstrate how this has been applied. Let us
start with a case which originated in Davao.
POSADAS vs. COURT OF
APPEALS
180 SCRA 283
NOTE: The search was conducted
in Magallanes Street, sa may RMC.
FACTS: At about 10 o’clock in the
morning, two policemen were
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 202
conducting a surveillance. Obviously,
they were expecting something to
happen, or they were asked to look for
somebody. They spotted Posadas
carrying a buri bag. They notice him to
be acting suspiciously. (What do you
mean by acting suspiciously? Let us
leave that to the judgment of the peace
officer.) Both policemen approached
Posadas and identified themselves.
But when they introduced themselves,
Posadas attempted to flee. “There is
something wrong here. Nagpakilala
tayong pulis, tumakbo siya. Why is he
running?”
So, they caught him. A check of the
buri bag yielded one caliber .38 Smith
& Wesson revolver, 2 teargas grenades
and live ammunitions of .32 caliber
gun. Posadas was not able to show the
necessary license or authority to
possess firearms and ammunitions. So
he was prosecuted for illegal
possession of firearms and
ammunitions.
ISSUE: Was there a valid search
and seizure to make a confiscated
items admissible evidence?
HELD: YES. “There was a valid
search and seizure. At the time the
peace officers identified themselves
and apprehended Posadas as he
attempted to flee, they did not know
what he had committed, or was
actually committing illegal possession
of firearms. They did not know that!
They just went there and introduced
themselves. They just suspected that
he was hiding something in the buri
bag. They did not know what its
contents were. The said circumstances
did not justify the arrest without the
warrant.” – klaro yan – because is
there a crime if you walk around with
a buri bag? I don’t think there is a
crime, ‘noh?)
“HOWEVER—[yaaan!]—the
search, in the case at bar, is reasonable
considering that it was effected on the
basis of probable cause.” [So, balik na
naman tayo sa probable cause.] The
probable cause is that when Posadas
acted suspiciously and attempted to
flee with the buri bag, there was a
probable cause that he was concealing
something illegal in the bag. It was the
right and duty of the police officers to
inspect the same, “Why are you
running? We’re just introducing
ourselves, ba’t tumakbo ka?” Ayan. It
will arouse suspicion.
“It is too much indeed to require
the police officers to search the bag in
the possession of Posadas only after
they shall have obtained a search
warrant for the purpose. Such an
exercise may prove to be useless, futile
and much too late.”
So you can see the pattern. Alam niyo ang
mga kasong ganito—warrantless searches,
warrantless arrests under Rule 113—ang pag-asa
mo lang dito read as many cases as possible.
Because if you will be questioned by the
examiner, definitely it will be patterned after one
case. If you are familiar with the cases, madaling
makilala. It would be easy. As what happened
last year, there was a question in Constitutional
Law on stop and frisk. Sabi nila, “Uy! [si Judee na sad!]
Nabasa ko man ang kasong ito.” And it was
really the same case. The same facts, eh. Sa
sementeryo, inaresto, mapula ang mata, parang
hubog maglakad…meaning, he was suspected to
be an addict. The same! We’ll touch the case later.
I think that’s the case of Manalili vs Court of
Appeals. Alright.
We’ll compare this case of Posadas with a
similar case – the case of
PEOPLE vs. MENGOTE
210 SCRA 174
FACTS: Rogelio Mengote was
arrested by policemen because he was
acting suspiciously. Ayan na naman,
pareho sa Posadas eh. He was looking
from side to side while holding his
abdomen. When searched, he was
found with a .38 revolver with six live
bullets. The incident occurred before
noon time – so tanghali! – at the corner
of Juan Luna and North Bay
Boulevard, Tondo, Manila. Almost the
same with Posadas—ten o’clock in the
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 203
morning, before noon. But how come
there is a difference in the ruling?
NOTE: Take note ha, in the case of
Posadas, tumakbo. In Mengote, hindi
man tumakbo. Basta linapitan siya,
nakapkapan ng baril. Mengote was
convicted of illegal possession of
firearms.
He was convicted. Mengote
contends that the weapon was not
admissible evidence because it was
illegally seized, and therefore, the fruit
of a poisonous tree. Yun man talaga
depensa mo, wala mang iba.
The prosecution insists that the
revolver was validly received in
evidence because its seizure was
incidental to an arrest that was
doubtless lawful, even admittedly
without warrant.
ISSUE: Is the evidence
inadmissible?
HELD: YES. “The evidence is
inadmissible. When Mengote was
arrested, he was not committing any
offense.”
The question is, What offense?
“What offense could possibly have
been suggested by a person ‘looking
from side to side’ and ‘holding his
abdomen’ and in a place not exactly
forsaken? These are certainly not
sinister acts. And the setting of the
arrest made them less so, if at all.” Eto!
Kaya nasabi ko, in determining stop
and frisk, you have to look at the time,
the place.
“It might have been different if
Mengote had been apprehended at an
ungodly hour and in a place where he
had no reason to be, like a darkened
alley at 3 o'clock in the morning. But
he was arrested at 11:30 in the
morning and in a crowded street
shortly after alighting from a
passenger jeep with his companion.
He was not skulking in the shadows
but walking in the clear light of day.
There was nothing clandestine about
his being on that street at that busy
hour in the blaze of the noonday sun.”
“It would be a sad day, indeed, if
any person could be summarily
arrested and searched just because he
is holding his abdomen, even if it be
possibly because of a stomach-ache, or
if a peace officer-could clamp
handcuffs on any person with a shifty
look on suspicion that he may have
committed a criminal act or is actually
committing or attempting it. This
simply cannot be done in a free
society. This is not a police state where
order is exalted over liberty or, worse,
personal malice on the part of the
arresting officer may be justified in the
name of security.”
So even the SC gave a guideline. Kung alas
tres ng umaga, madilim…ahh, puydi!
PEOPLE vs. EVARISTO
December 11, 1992
FACTS: There was somebody who
fired a pistol. So, there were 2
policemen who started chasing him.
And when they chased, they found 2
people in the corner and they started
asking these 2 people. Now, one of the
2 policemen saw that the guy’s side is
bulging. When they searched him,
they found a gun. So he was arrested.
ISSUE: Whether there was a valid
warrantless search was valid.
HELD: When the police officers
chased after somebody who fired a
pistol and they came upon Evaristo,
the visual observation that his side is
bulging along with the earlier report
of gunfire, as well as the peace officer's
professional instincts, are more than
sufficient to pass the test of the Rules.
Consequently, under the facts, the
firearms taken from Evaristo can be
said to have been seized incidental to a
lawful and valid arrest.
So, that is the doctrine of Stop and Frisk.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 204
MALACAT vs. COURT OF
APPEALS, December 12, 1997
vis-à-vis MANALILI vs. COURT
OF APPEALS, October 9, 1997
HELD: “Rejecting his appeal, this
Court held that the search was akin to
a stop-and-frisk. The police had
sufficient reason to stop Manalili, who
"had red eyes and was wobbling like a
drunk . . . [in] a popular hangout of
drug addicts," in order to investigate if
he was actually "high" on drugs. The
situation verily called for a stop-and-
frisk.”
MALACAT vs. COURT OF
APPEALS
G.R. No. 123595; December 12,
1997
ISSUE: Distinguish stop and frisk
from search incidental to a lawful
arrest.
HELD: “We note that the trial
court confused the concepts of a "stop-
and-frisk" and of a search incidental to
a lawful arrest. These two types of
warrantless searches differ in terms of
the requisite quantum of proof before
they may be validly effected and in
their allowable scope.
“In a search incidental to a lawful
arrest, as the precedent arrest
determines the validity of the
incidental search, the legality of the
arrest is questioned in a large majority
of these cases, e.g., whether an arrest
was merely used as a pretext for
conducting a search. In this instance,
the law requires that there first be a
lawful arrest before a search can be
made — the process cannot be
reversed. At bottom, assuming a valid
arrest, the arresting officer may search
the person of the arrestee and the area
within which the latter may reach for a
weapon or for evidence to destroy,
and seize any money or property
found which was used in the
commission of the crime, or the fruit of
the crime, or that which may be used
as evidence, or which might furnish
the arrestee with the means of
escaping or committing violence.
“While probable cause is not
required to conduct a "stop and frisk,"
it nevertheless holds that mere
suspicion or a hunch will not validate
a "stop and frisk." A genuine reason
must exist, in light of the police
officer's experience and surrounding
conditions, to warrant the belief that
the person detained has weapons
concealed about him. Finally, a "stop-
and-frisk" serves a two-fold interest:
(1) the general interest of effective
crime prevention and detection, which
underlies the recognition that a police
officer may, under appropriate
circumstances and in an appropriate
manner, approach a person for
purposes of investigating possible
criminal behavior even without
probable cause; and (2) the more
pressing interest of safety and self-
preservation which permit the police
officer to take steps to assure himself
that the person with whom he deals is
not armed with a deadly weapon that
could unexpectedly and fatally be
used against the police officer.”
SEARCH OF MOVING VEHICLES
Another instance of a valid warrantless search
is the search of moving vehicles. Because if the
vehicle is moving or mobile, and it contains
illegal/prohibited objects that is being
transported and nandiyan na ang vehicle, it
would be absurd if you apply first for a search
warrant because makakalayo na yung vehicle.
Now, do you remember the most
controversial case of VALMONTE vs. DE VILLA?
This is where the SC sustained the
constitutionality of checkpoints. But the
guidelines here is that the checkpoints has
authority to stop the car and see anything
without opening any compartments of it. So, the
inspection is limited to a visual or ocular
inspection only. But if the checkpoints received a
tip that there is a passenger, then it is allowed.
PEOPLE vs. MALMSTEDT
198 SCRA 401
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FACTS: This happened in the
Mountain Province involving a
Caucasian. The NARCOM agents
received a tip that a bus will pass from
Mt. Province and that there is a
Caucasian passenger bringing with
him prohibited drugs. So, they
stopped the bus and found a
Caucasian inside. So they approached
him and asked him: “What is your
name? Can we see your passport?”
The Caucasian refused. Then during
the inspection, the NARCOM agents
opened his bag and found hashish.
The same was found in the teddy bear.
So, he was charged with illegal
possession of prohibited drugs.
Malmstedt questioned the validity of
the search.
HELD: The warrantless search was
valid. “The receipt of information by
NARCOM that a Caucasian coming
from Sagada had prohibited drugs in
his possession, plus the suspicious
failure of Malmstedt to produce his
passport, taken together as a whole,
led the NARCOM officers to
reasonably believe that he was trying
to hide something illegal from the
authorities. From these circumstances
arose a probable cause which justified
the warrantless search that was made
on the personal effects of Malmstedt.
In other words, the acts of the
NARCOM officers in requiring him to
open his pouch bag and in opening
one of the wrapped objects found
inside said bag (which was discovered
to contain hashish) as well as the two
(2) travelling bags containing two (2)
teddy bears with hashish stuffed
inside them, were prompted by
Malmstedt’s own attempt to hide his
identity by refusing to present his
passport, and by the information
received by the NARCOM that a
Caucasian coming from Sagada had
prohibited drugs in his possession. To
deprive the NARCOM agents of the
ability and facility to act accordingly,
including, to search even without
warrant, in the light of such
circumstances, would be to sanction
impotence and ineffectiveness in law
enforcement, to the detriment of
society.”
The case of MALMSTEDT was repeated in the
case of
PEOPLE vs. BAGISTA
214 SCRA 53
FACTS: This also happened in Mt.
Province. The NARCOM received a
tip that a woman riding in a bus from
Baguio City has marijuana. She was
described as having curly hair and
short. So, when the bus passed
through the checkpoint, they saw the
woman which fit the description. The
agent searched her and in her bag was
found marijuana. The bag and its
contents were seized.
ISSUE: Was there a valid search?
HELD: The search was valid in
accordance with the case of Malmstedt.
“With regard to the search of moving
vehicles, this had been justified on the
ground that the mobility of motor
vehicles makes it possible for the
vehicle to be searched to move out of
the locality or jurisdiction in which the
warrant must be sought.”
“This in no way, however, gives
the police officers unlimited discretion
to conduct warrantless searches of
automobiles in the absence of probable
cause. When a vehicle is stopped and
subjected to an extensive search, such
a warrantless search has been held to
be valid only as long as the officers
conducting the search have reasonable
or probable cause to believe before the
search that they will find the
instrumentality or evidence pertaining
to a crime, in the vehicle to be
searched.”
“The NARCOM officers in the case
at bar had probable cause to stop and
search all vehicles coming from the
north at Acop, Tublay, Benguet in
view of the confidential information
they received from their regular
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 206
informant that a woman having the
same appearance as that of accused-
appellant would be bringing
marijuana from up north. They
likewise have probable cause to search
accused-appellant's belongings since
she fits the description given by the
NARCOM informant.”
Let’s try to compare the case of Bagista with
the earlier case of AMINUDIN. It has a similar set
of facts but this time, it involves marine vessel.
PEOPLE vs. AMINUDIN
163 SCRA 402
FACTS: The NARCOM agenst in
Iloilo City received a report that a
vessel coming from Mindanao has Mr.
Aminudin carrying with him
marijuana. So, the NARCOM agents
waited at the port for the vessel to
arrive. So they were looking for the
passenger and then they saw a man
which fit the description of the
suspect. They frisked him and when
the maleta was opened, it contained
prohibited drugs. Subsequently, the
man was arrested.
HELD: There was no valid search
because the NARCOM has enough
time to secure a search warrant. There
are still 2 days before the vessel will
arrive. They have all the time. In the
Malmstedt and Bagista, it was in the
bus and may pass by within 30
minutes or 1 hour.
Another difference is this: if you are the
suspect riding in a bus and you knew that there is
a checkpoint ahead, you can always ask the bus
to stop and then baba ka. But in the case of ship,
you cannot do that! Pagnaka-hearing ka na may
checkpoint sa pier, will you ask the vessel to stop
and then talon ka dagat? That is absurd ‘no! So
when it comes to buses or other by-land vehicles,
mas madaling makataas ang suspect. Unlike sa
marine vessel.
Another case where the SC laid down the rule
reiterating the case of Valmonte is the 1993 case of:
PEOPLE vs. EXALA
221 SCRA 494
HELD: But visual situation only
and if there is an information to excite
that something is wrong, then you can
effect a search without warrant. This is
the exception: if the vehicle is stopped
and extensively searched, it is because
of some probable cause which justifies
a reasonable belief that either a
motorist of the content of the vehicle is
an instrument in the commission of an
offense. The presumption stands that
they are regularly performing their
duties.
EVIDENCE IN PLAIN VIEW
Another instance of a warrantless search is
the search of evidence in plain view know as the
plain view doctrine – when you stumble by
accident across an object which is prohibited or
illegal. It would be absurd that you still have to
require a search warrant, when it is actually there
in front of you. This doctrine complements the
other. And one of the cases where the SC
explained the plain view doctrine is the case of
PEOPLE vs. MUSA
217 SCRA 597 [1995]
FACTS: The NARCOM team
conducted a buy-bust operation at the
appellant’s house who was alleged to
be selling marijuana. After the
transaction took placed, the team went
inside the house and arrested the
appellant but unable to find the
marked money.
Thereafter, 2 agents went to the
kitchen and noticed a cellophane
colored white and stripe hanging at
the corner of the kitchen. They asked
the appellant about its contents, but
failing to get a response, they opened
it and found dried marijuana leaves.
At the trial, the appellant
questioned the admissibility of the
plastic bag and the marijuana it
contains but the trial court ruled that
they are admissible.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 207
HELD: Search was not valid,
objects seized inadmissible in
evidence. The SC explained and
clarified the meaning of plain view.
Let us say that the plastic bag is
apparent and you cannot see what is
inside, then you will go there to see it,
that is not plain view.
“The warrantless search and
seizure, as an incident to a suspect's
lawful arrest, may extend beyond the
person of the one arrested to include
the premises or surroundings under
his immediate control. Objects in the
"plain view" of an officer who has the
right to be in the position to have that
view are subject to seizure and may be
presented as evidence.”
“The "plain view" doctrine may
not, however, be used to launch
unbridled searches and indiscriminate
seizures nor to extend a general
exploratory search made solely to find
evidence of defendant's guilt. The
"plain view" doctrine is usually
applied where a police officer is not
searching for evidence against the
accused, but nonetheless inadvertently
comes across an incriminating object.”
“It has also been suggested that
even if an object is observed in "plain
view," the "plain view" doctrine will
not justify the seizure of the object
where the incriminating nature of the
object is not apparent from the "plain
view" of the object. 47 Stated
differently, it must be immediately
apparent to the police that the items
that they observe may be evidence of a
crime, contraband, or otherwise
subject to seizure.”
“In the instant case, the appellant
was arrested and his person searched
in the living room. Failing to retrieve
the marked money which they hoped
to find, the NARCOM agents searched
the whole house and found the plastic
bag in the kitchen. The plastic bag
was, therefore, not within their "plain
view" when they arrested the
appellant as to justify its seizure. The
NARCOM agents had to move from
one portion of the house to another
before they sighted the plastic bag.”
“Moreover, when the NARCOM
agents saw the plastic bag hanging in
one corner of the kitchen, they had no
clue as to its contents. They had to ask
the appellant what the bag contained.
When the appellant refused to
respond, they opened it and found the
marijuana. Even assuming then, that
the NARCOM agents inadvertently
came across the plastic bag because it
was within their "plain view," what
may be said to be the object in their
"plain view" was just the plastic bag
and not the marijuana. The
incriminating nature of the contents of
the plastic bag was not immediately
apparent from the "plain view" of said
object. It cannot be claimed that the
plastic bag clearly betrayed its
contents, whether by its distinctive
configuration, its transparency, or
otherwise, that its contents are
obvious to an observer.”
CUSTOMS SEARCHES
Another instance of a valid warrantless search
is a search conducted under the customs and
tariff code. When a vessel arrives from abroad,
the customs agents board the vessel to look for
smuggled items. Then can conduct warrantless
searches for the enforcement of customs laws.
CONSENTED SEARCH
Another instance of a valid warrantless search
is a consented search because here, there is a
waiver. For example: I will go to your house and I
will tell you that we heard that there are illegal
firearms inside your house and I have no
warrant. But you let me in, “Okay lang, sige pasok
ka and you search.” That is consented search.
One of the interesting cases in consented
search is the case of:
PEOPLE vs. BURGOS
144 SCRA 1
NOTE: Do not confuse this case
with the one we discussed in Rule 113.
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 208
FACTS: There was a suspected
NPA, got arrested and there was an
interrogation, “Who are you
companions?” “Mr. so and so.” So
they went to this house and said that,
“Hoy! NPA ka man daw. We would like
to search your house, pwede?” The wife
did not object. They found firearms.
When the constitutionality of the
search was challenged, the contention
was, it was a consented search.
HELD: It was not a consented
search. When a person remains silent,
that is not consent. This is a
constitutional right which cannot be
lightly waived. There is no
presumption that there is a waiver or
that the consent was given by the
accused simply because he failed to
object. You apply the rule that courts
indulge every reasonable presumption
against waiver of constitutional rights.
You cannot presume acquiescence in
the loss of fundamental constitutional
right.
One last case on consented search also
happened in Davao City. The case of
VEROY vs. LAYAGUE
210 SCRA 97
FACTS: Atty. Paul Veroy was
formerly regional director of the SSS.
He has a house in Skyline. At that
time, they were at Manila. The
military received a report that his
house is being used by the rebels; that
is where they meet. So they called up
Veroy through long distance. Mr.
Veroy said, “Sige, bahala na kayo diyan.”
The searching team started opening
drawers and they found guns. So
Veroy was charged for illegal
possession of firearms.
Veroy challenged the validity of
the search. The defense was consented
search.
HELD: The search was not valid
although there was consent from
Veroy. The permission was to look for
rebels and not for firearms. If you are
looking for rebels, why are you
opening the drawers? There are no
rebels inside the drawers! Where the
permission to enter a residence was
given to search for rebels, it is illegal to
search the rooms therein for firearms
without a search warrant.
SEARCHES UNDER
EXIGENT/EXTRAORDINARY
CIRCUMSTANCES
The last exception to the warrant exception
would be searches during exigent or
extraordinary circumstances provided probable
cause exists. Just like what happened during the
1987 and 1989 coup where the military made
some searches in suspected places. In that case,
there is no need to obtain search warrants
considering that during that time all the courts
there in Manila were closed because of the coup
de etat. Such period is considered as
extraordinary circumstances.
NOTE: This exception is a catch-all category
that encompasses a number of diverse situations.
What they have in common is some kind of
emergency that makes obtaining a search warrant
impractical, useless, dangerous, or unnecessary.
Among these situations are danger of physical
harm to the officer or destruction of evidence,
danger to a third person, driving while
intoxicated, and searches in hot pursuit. Del
Carmen, Rolando V., Criminal Procedure for Law
Enforcement Personnel, 1987 Edition p. 150
(Footnote, People vs. Fernandez, 238 SCRA 174,
182)
NOTE: Search based on probable cause under
extraordinary circumstances, were upheld in
People vs. Posadas, 188 SCRA 288 [1990];
Valmonte vs. Villa, 178 SCRA 211 [1989]; People
vs. Maspil, G.R. No. 85177, August 20, 1990, citing
Valmonte vs. Villa; People vs. Malmstedt, G.R.
No. 91107, June 19, 1991; People vs. Sucro, G.R.
No. 93239, March 18, 1991; People vs. Montilla,
G.R. No. 123872, January, 30, 1998.
SEC. 14. Motion to quash a
search warrant or to suppress
evidence; where to file. - A
motion to quash a search
warrant and/or to suppress
evidence obtained thereby may
be filed in and acted upon only
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 209
by the court where the action
has been instituted. If no
criminal action has been
instituted, the motion may be
filed in and resolved by the
court that issued search
warrant. However, if such court
failed to resolve the motion
and a criminal case is
subsequently filed in another
court, the motion shall be
resolved by the latter court.
(n)
Now, Section 14 is a new provision. It was
taken from the case of Malaloan and Bans. (People
v. Bans, G.R. No. 104147)
Q: The judge will issue a search warrant.
Suppose the search warrant is improper, where
will you question the admissibility of the
evidence… in the court which issued the
warrant? or in the court where the case is
pending?
A: In the case of Malaloan, in either court. But
in the case of Bans, if there is already a case, all
should be resolved in the court where the case is
pending, otherwise there will be interference
among the courts.
When do you question the validity of the
search? In illegal arrest, all defects surrounding
the arrest should be raised before the
arraignment, otherwise the defects are deemed
cured because there was a waiver.
But in illegal search, such rule does not apply.
You may raise such issue even after arraignment.
The waiver only applies on the illegality of arrest,
and does not extend to searches. (People vs.
Aruta)
Rule 127
PROVISIONAL REMEDIES
IN CRIMINAL CASES
The most extensive discussion in provisional
remedies is when we discuss provisional
remedies and special civil actions in civil
procedure. The main rules are from Rule 57 to 61.
The concept is, if there are provisional remedies
in civil cases, there must also be provisional
remedies in criminal cases.
EXAMPLE: Let’s go first to civil cases:
Suppose you borrowed money from me and you
refused to pay. So, I’ll file a case against you.
Q: Can I immediately run against your
properties?
A: Not yet because the case is still pending.
But if there is still sufficient property of the
debtor, there is no problem.
But suppose you start selling your properties
everyday. By the time I win the case, you may be
as poor as a rat. So I must do something. Under
Rule 57, I can ask the court to issue preliminary
attachment. That is provisional remedy. Some of
your properties will be attached to prevent you
from disposing. It is now my security.
Q: Is that applicable in criminal cases?
A: Of course. Just remember the rule, when
you file a criminal case, there is a civil action
which is deemed instituted to recover civil
liability. The victim is interested for the civil
liability and so, he has to wait for the criminal
case to end. But now even if the case is going on,
the accused is hiding his property one by one. He
is trying to dispose. So, I will ask for the remedy
of preliminary attachment in criminal cases.
But in order that Rule 127 will apply, the
condition is, the offended party has not waived
the civil liability or has not reserved.
SECTION 1. Availability of
provisional remedies. – The
provisional remedies in civil
actions, insofar as they are
applicable, may be availed of in
connection with the civil action
deemed instituted with the criminal
action. (1a)
The provisional remedies in civil actions are
also available in criminal actions. You can find
them in Rule 57 to 61. The most famous of them is
the remedy of preliminary attachment. So, if there
is attachment in civil cases, there is also in
criminal cases.
SEC. 2. Attachment.– When
the civil action is properly
instituted in the criminal
action as provided in Rule 111,
 I ñ i g o N o t e s i n C r i m i n a l P r o c e d u r e | 210

the offended party may have the from the issuance of a

property of the accused provisional remedy in the case.
attached as security for the
satisfaction of any judgment x x x x x
that may be recovered from the
accused in the following cases:
That is the end of review on criminal
(a) When the accused is procedure.
about to abscond from the
Philippines;

(b) When the criminal action

is based on a claim for money
or property embezzled or
fraudulently misapplied or
converted to the use of the
accused who is a public
officer, officer of a
corporation, attorney, factor,
broker, agent or clerk, in the
course of his employment as
such, or by any other person in
a fiduciary capacity, or for a
willful violation of duty;

(c) When the accused has

concealed, removed, or disposed
of his property, or is about to
do so; and

(d) When the accused resides

outside the Philippines. (2a)

So, you can avail of attachment upon filing of

the case or it is pending in court provided there is
no waiver or reservation of the civil action and
there should be the presence of any of the four (4)
grounds.

Now, you try to compare the grounds in

attachment in civil cases with the grounds in
criminal cases. If you read Rule 57, the grounds
are almost the same.

In civil cases, the defendant can ask for

damages in case of an improper attachment made
by the plaintiff, kaya nga may attachment bond
eh to answer for damages.

Q: Now in criminal cases, can the accused

claim for damages for illegal or improper
attachment under Rule 127?
A: YES, the same in civil cases. And that is
confirmed in Rule 119, Section 11 [b]:

RULE 119, SEC. 11. Order of

trial. – The trial shall
proceed in the following order:
x x x x x

(b) The accused may present

evidence to prove his defense
and damages, if any, arising,