Table of Contents

Rule 117 Motion to Quash ........................................................................................................................................................................................... 1

GROUNDS [RULE 117, SEC. 3] FJ-JOC-ME-PA ....................................................................................................................................................... 2
Rule 118 Pre-trial .......................................................................................................................................................................................................... 10
THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES ...................................................................................................................................... 10
[RULE 118, SEC. 1] PS-MaWa-MoOt ..................................................................................................................................................................... 10
NON-APPEARANCE DURING PRE-TRIAL [RULE 118, SEC. 3] .............................................................................................................................. 12
PRE-TRIAL ORDER [RULE 118, SEC. 4] .................................................................................................................................................................... 12
Rule 119 Trial ................................................................................................................................................................................................................. 13
INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW .................................................................................................................. 13
REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF .......................................................................................... 13
WITNESS.................................................................................................................................................................................................................... 13
CONDITIONAL EXAMINATION [RULE 119, SEC. 15] ............................................................................................................................................ 14
TRIAL IN ABSENTIA (1998 BAR) ............................................................................................................................................................................... 14
REMEDY WHEN ACCUSED IS NOT BROUGHT TO ................................................................................................................................................ 14
TRIAL WITHIN THE PRESCRIBED PERIOD ................................................................................................................................................................ 14
REQUISITES FOR DISCHARGE OF ACCUSED TO .................................................................................................................................................. 14
BECOME A STATE WITNESS .................................................................................................................................................................................... 14
EFFECTS OF DISCHARGE OF ACCUSED AS STATE ............................................................................................................................................... 15
WITNESS.................................................................................................................................................................................................................... 15
DEMURRER TO EVIDENCE ...................................................................................................................................................................................... 15
HOW INITIATED [RULE 119, SEC. 23] ...................................................................................................................................................................... 15
MOTION FOR LEAVE TO FILE DEMURRER [RULE 119, SEC. 23] ........................................................................................................................... 15
EFFECT OF GRANTING DEMURRER ....................................................................................................................................................................... 16
EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE........................................................................................................................................... 16
DEMURRER ............................................................................................................................................................................................................... 16
RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER .................................................................................................................................... 16
DEMURRER IS DENIED [RULE 119, SEC. 23] ........................................................................................................................................................... 16
Rule 120 Judgment ..................................................................................................................................................................................................... 16
FORM ....................................................................................................................................................................................................................... 16
JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE........................................................................................................................... 17
WHO HEARD THE CASE .......................................................................................................................................................................................... 17
CONTENTS OF JUDGMENT .................................................................................................................................................................................... 17
PROMULGATION OF JUDGMENT; INSTANCES OF .............................................................................................................................................. 19
PROMULGATION OF JUDGMENT IN ABSENTIA ................................................................................................................................................... 19
WHEN DOES JUDGMENT BECOME FINAL [RULE 120, SEC. 7] ............................................................................................................................ 20
Rule 121 New trial or Reconsideration ..................................................................................................................................................................... 21
GROUNDS FOR NEW TRIAL [RULE 121, SEC. 2] .................................................................................................................................................... 21
GROUNDS FOR RECONSIDERATION .................................................................................................................................................................... 22
REQUISITES BEFORE A NEW TRIAL MAY BE ........................................................................................................................................................... 22
GRANTED ON GROUND OF NEWLY DISCOVERED............................................................................................................................................. 22
EVIDENCE ................................................................................................................................................................................................................ 22
EFFECTS OF GRANTING A NEW TRIAL OR ............................................................................................................................................................ 22
RECONSIDERATION [RULE 121, SEC. 6] ................................................................................................................................................................ 22
REMEDY AGAINST GAD IN GRANTING MNT/MFR .............................................................................................................................................. 22
APPLICATION OF NEYPES DOCTRINE IN .............................................................................................................................................................. 22
CRIMINAL CASES .................................................................................................................................................................................................... 22
Rule 122 Appeal .......................................................................................................................................................................................................... 22
WHERE TO APPEAL [RULE 122, SEC. 2] ................................................................................................................................................................. 23
HOW APPEAL TAKEN .............................................................................................................................................................................................. 23
WHO MAY APPEAL ................................................................................................................................................................................................. 23
CA’S POWER TO RECEIVE EVIDENCE [Rule 124, Sec. 12] ................................................................................................................................. 26
QUORUM IN THE CA [Sec. 11, BP 129] ................................................................................................................................................................. 26
CERTIFICATION OR APPEAL OF CASES TO THE SC [Rule 124, Sec. 13] ............................................................................................................ 26
MNT DURING THE PENDENCY OF APPEAL IN THE CA ........................................................................................................................................ 27
MFR OF CA JUDGMENT [Rule 124, Sec. 16] ........................................................................................................................................................ 27
Automatic review .................................................................................................................................................................................................. 28
Ordinary appeal .................................................................................................................................................................................................... 28
Petition for review on certiorari ............................................................................................................................................................................ 28
EFFECT OF APPEAL BY ANY OF SEVERAL ............................................................................................................................................................. 29
ACCUSED [RULE 122, SEC. 11] .............................................................................................................................................................................. 29
GROUNDS FOR DISMISSAL OF APPEAL ................................................................................................................................................................ 29
RULE 126 Search and Seizure .................................................................................................................................................................................... 30
Rule 127 Provisional Remedies .................................................................................................................................................................................. 41
PRELIMINARY ATTACHMENT .................................................................................................................................................................................. 41

Rule 117 Motion to Quash

Time for Filing: Any time before the accused enters his plea [Sec. 1, Rule 117]

Form and Contents

(a) Must be in writing;
(b) Signed by the accused/his counsel; and
(c) Distinctly specify the factual and legal grounds. [Sec. 2, Rule 117]

In case of Summary Procedure MTQ is allowed only if made on the grounds of lack of jurisdiction
or failure to comply with barangay conciliation proceedings. [Sec. 19, Rules on Summary
Procedure]
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GROUNDS [RULE 117, SEC. 3] FJ-JOC-ME-PA
The following grounds for MTQ are EXCLUSIVE:
(1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction over the offense charged.
(3) Court trying the case has no jurisdiction over the person of the accused.
(4) Officer who filed the information had no authority to do so.
(5) The information does not conform substantially to the prescribed form.
(6) More than one offense is charged
Exception: When a single punishment for various offenses is prescribed by law
(7) Criminal action or liability has been extinguished.
(8) It contains averments which, if true, would constitute a legal excuse or justification.
(9) 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 (Double
Jeopardy Rule)

Note: Although the rule is that grounds not asserted in the motion to quash are waived, the
following objections are not subject to waiver:
(1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction over the offense charged
(3) Criminal action or liability has been extinguished
(4) Double jeopardy

FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE

An information which does not charge an offense or does not allege essential elements of a
crime is void.

Test: WON the facts alleged, if hypothetically admitted, would establish the essential elements
of the offense, as defined by law without considering matters aliunde.

Instead of dismissing, the court should give the prosecution an opportunity to amend the
information. [Rule 117, Sec. 4]
(a) Should the prosecutor fail to make the amendment or should the information suffer from
the same defect despite amendment, the MTQ shall be granted. [Rule 117, Sec. 4]

(b) When the prosecutor dismisses the case, the prosecutor should file a valid information,
not a petition for review for certiorari.
The defect is not cured by a failure to move to quash or by a plea of guilty. [Suy Sui v.
People (1953)]

General Rule: In a MTQ, facts other than those alleged in the complaint/information may NOT
be considered by the court.
Exceptions:
(a) Facts already admitted by the prosecution [People v. Navarro];
(b) Undisputed facts apparent from the records of the PI and not denied by the prosecutor.
[Salonga v. Pano (1985)]
(c) Undisputed or undeniable facts that destroy the prima facie truth accorded to allegations
of the information. [People v. de la Rosa (1988)]
(d) ROC expressly permits the investigation of facts alleged. [People v. Alagao (1966)][Rule 117,
Sec. 2(f)(h), 4 & 5]

COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED

Jurisdiction over the subject matter: The power to adjudge concerning the general question
involved (See Discussion on Jurisdiction)

In a criminal prosecution, the place where the offense was committed not only determines
venue, but is an essential element of jurisdiction. [Rule 110, Sec. 15; Lopez v. City Judge (1966)]

In private crimes, the complaint of the offended party is necessary to confer authority to the
court.

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The court had jurisdiction over the case since, for as long as he continues to evade the service
of his sentence, he is deemed to continue committing the crime, and may be arrested without
warrant at any place where he may be found. [Parulan v. Director of Prisons (1968)]

COURT HAS NO JURISDICTION OVER THE PERSON OF THE ACCUSED

How jurisdiction is acquired
(a) By arrest of the accused; or
(b) By his voluntary appearance in court.

It is waivable expressly or by implication, unlike jurisdiction over the territory and the subject
matter.

(BAR Matter)When the accused files a MTQ based on this ground, he must do so only on this
ground. If he raises other grounds, he is deemed to have submitted his person to the jurisdiction
of the court. [Sanchez v. Demetriou (1993)]

OFFICER WHO FILED INFORMATION HAD NO AUTHORITY TO DO SO

Authority to file and prosecute criminal cases is vested in:
(a) Provincial fiscals and their assistants.
(b) City fiscals and their assistants.
(c) Chief State Prosecutor and his deputies
(d) Other officers authorized by law (Ombudsman, COMELEC, etc.)

The prosecutor who signed the information must have territorial jurisdiction to conduct
preliminary investigation of the offense. [Cudia v. CA (1998)]

An Information filed in the Sandiganbayan must be signed by a graft investigating officer with
prior approval of the Ombudsman.

Election Offenses: Must be signed by the duly deputized prosecutors and legal officers of the
COMELEC.

Bar Matter: PEOPLE vs. GARFIN [G.R. No. 153176. March 29, 2004
Issue: whether an information filed by a state prosecutor without the prior written authority or
approval of the city or provincial prosecutor or chief state prosecutor should be dismissed after the
accused has entered his plea under the information.
Facts: Private respondent was charged with violation of Section 22(a) in relation to Sections 19(b) and
28(e) of Republic Act No. 8282, otherwise known as the Social Security Act.
State Prosecutor Tolentino, who filed the information was granted authority by the Regional State
Prosecutor as Special State Prosecutor to file information and investigate the case.
The information does not contain the signature of the Regional State Prosecutor, although the
information contains a certification signed by State Prosecutor Romulo SJ. Tolentino which states:
xxxthe filing of the information is with the prior authority and approval of the Regional State
Prosecutor”.
The accused filed a motion to dismiss on the ground that the information was filed without the prior
written authority or approval of the city prosecutor as required under Section 4, Rule 112 of the
Revised Rules of Court.

RULING: The Regional State Prosecutor is clearly vested only with the power of administrative
supervision. Nowhere in P.D. No. 1275 is the regional state prosecutor granted the power to appoint a
special prosecutor armed with the authority to file an information without the prior written authority or
approval of the city or provincial prosecutor or chief state prosecutor.
P.D. No. 1275 provides the manner by which special prosecutors are appointed, to wit:
Sec. 15. Special Counsels. - Whenever the exigencies of the service require the creation of positions of
additional counsel to assist provincial and city fiscals in the discharge of their duties, positions of
Special Counsels may be created by any province or city, subject to the approval of the Secretary of
Justice, xxx. The Secretary of Justice shall appoint said Special Counsels, upon recommendation of
the provincial or city fiscal and regional state prosecutors concerned, either on permanent or
temporary basis.

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 In the case at bar, there is no pretense that a directive was issued by the Secretary of Justice to
Regional State Prosecutor Turingan to investigate and/or prosecute SSS cases filed within his territorial
jurisdiction.
Hence, since State Prosecutor Tolentino has no authority to file the information and without approval
of the provincial or city prosecutor, the court acquired no jurisdiction over the offence.

We hold that, in the absence of a directive from the Secretary of Justice designating State Prosecutor
Tolentino as Special Prosecutor for SSS cases or a prior written approval of the information by the
provincial or city prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by an
officer without authority to file the same. As this infirmity in the information constitutes a jurisdictional
defect that cannot be cured, the respondent judge did not err in dismissing the case for lack of
jurisdiction. Hence, such ground may be raised AT ANY STAGE OF THE PROCEEDINGS.

RULE: It is a valid information signed by a competent officer which, among other requisites, confers
jurisdiction on the court over the person of the accused and the subject matter of the accusation. In
consonance with this view, an infirmity in the information cannot be cured by silence, acquiescence,
or even by express consent.

Bar Matter: QUISAY VS. PEOPLE, January 13, 2016

Girlie filed a motion to quash information, on the ground of lack of authority of the person who filed
the same before the RTC. Girlie pointed out that the information was penned by ACP De La Cruz,
without any approval from any higher authority, although a Certification stated that ACP De La
Cruz has prior written authority or approval from the City Prosecutor in filing the said Information.

RULING: The CA correctly held that based on the wordings of Section 9 of RA 10071, which gave the
City Prosecutor the power to “investigate and/or cause to be investigated all charges of crimes,
misdemeanors and violations of penal laws and ordinances within their respective jurisdictions, and
have the necessary information or complaint prepared or made and filed against the persons
accused,” he may indeed delegate his power to his subordinates as he may deem necessary in
the interest of the prosecution service. The CA also correctly stressed that it is under the auspice of
this provision that the City Prosecutor of Makati issued OCP-Makati Office Order No. 32, which gave
division chiefs or review prosecutors “authority to approve or act on any resolution, order, issuance,
other action, and any information recommended by any prosecutor for approval,” without
necessarily diminishing the City Prosecutor’s authority to act directly in appropriate cases. By virtue
of the foregoing issuances, the City Prosecutor validly designated SACP Hirang, Deputy City
Prosecutor Emmanuel D. Medina, and Senior Assistant City Prosecutor William Celestino T. Uy as
review prosecutors for the OCP-Makati.

In this light, the Resolution finding probable cause to indict petitioner of the crime charged, was
validly made as it bore the approval of one of the designated review prosecutors for OCP-Makati,
as evidenced by his signature therein.

Unfortunately, the same could not be said of the Information filed before the RTC, as there was no
showing that it was approved by either the City Prosecutor of Makati or any of the OCP-Makati’s
division chiefs or review prosecutors. All it contained was a Certification from ACP De La Cruz which
stated, among others, that “and that the filing of the Information is with the prior authority and
approval of the City Prosecutor.”

This Court had already rejected similarly-worded certifications, uniformly holding that despite such
certifications, the Informations were defective as it was shown that the officers filing the same in
court either lacked the authority to do so or failed to show that they obtained prior written authority
from any of those authorized officers enumerated in Section 4, Rule 112 of the 2000 Revised Rules of
Criminal Procedure.

Here, there is nothing that would indicate that ACP De La Cruz sought the approval of either the
City Prosecutor or any of those authorized pursuant to OCP-Makati Office Order No. 32 in filing the
Pabatid Sakdal. Quite frankly, it is simply baffling how ACP De La Cruz was able to have the Pasiya
approved by designated review prosecutor SACP Hirang but failed to have the information
approved by the same person or any other authorized officer in the OCP-Makati.

COMPLAINT/INFORMATION DOES NOT CONFORM SUBSTANTIALLY TO THE PRESCRIBED FORM

The formal and substantial requirements are provided for in Rule 110, Sec. 6-12.

General Rule: Lack of substantial compliance renders the accusatory pleading nugatory.
Exception: Mere defects in matter of form may be cured by amendment.

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Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file
for a bill of particulars. [Rule 116, Sec. 9]

MORE THAN ONE OFFENSE IS CHARGED

General Rule: The complaint or information must charge only one offense. [Rule 110, Sec. 13]
Exception: Those cases in which existing laws prescribe a single punishment for various
offenses.
(a) Complex and compound crimes, EXCEPT where one offense was committed to
conceal another.
(b) An offense INCIDENTAL to the gravamen of the offense charged.
(c) A specific crime set forth in various counts, each of which may constitute a distinct
offense. The narration of the specific acts is considered a bill of particular of facts
upon which the inference of guilt of the accused may be based [People v. Yap
(1968)]

This ground is waivable. The accused may be convicted of all the offenses alleged and proved
if he goes to trial without objecting to the inclusion of 2 or more separate offenses in the same
information. [People v. Villamor (1998)]

If the criminal acts are committed on different occasions, each constitutes a separate offense.

CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED

How criminal liability is extinguished
(a) Death of the accused -Liability for pecuniary penalties is extinguished only if death occurs
before final judgment.
(b) Service of Sentence -Execution must be by virtue of a final judgment and in the form
prescribed by law.
(c) Amnesty
(d) Absolute pardon
(e) Prescription of the crime
(f) Prescription of the penalty
(g) Pardon in private offenses

CONTAINS AVERMENTS WHICH, IF TRUE, WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION

Justifying Circumstances [Art 11, RPC]
Exempting Circumstances [Art 12, RPC]

Motion to Quash vs. Demurrer to Evidence

Motion to Quash
Filed before entering plea
Does not go into the merits of the case
Grounds are stated in Rule 117
Does not require a prior leave of court
Granting does not necessarily follow a dismissal
(Court may order the filing of a new complaint or
information)
If the court, in denying the motion to quash acts
with grave abuse of discretion, then certiorari or
prohibition lies
Demurrer to Evidence
Filed after the prosecution has rested its case
Based upon the inadequacy of the evidence
adduced by the prosecution
Ground is “insufficiency of evidence”
May be filed either with leave or without leave of
court
Granting is deemed an acquittal and would
preclude the filing of another information or appeal
by the prosecution
The order DENYING the motion for leave to file a
demurrer “shall not be reviewable by appeal or by
certiorari before judgment”
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce
evidence in his defense. When the demurrer is filed
without leave, the accused waives the right to
present evidence and submits the case for judgment
[Sec. 23, Rule 119]

EFFECTS OF SUSTAINING THE MOTION TO QUASH

General Rule: Court may order that another complaint or information be filed. [Rule 117, Sec. 5]
Exception: If MTQ was based on the following:
(1) Criminal action or liability has been extinguished
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(2) Double jeopardy

General Rule: If in custody, the accused shall not be discharged unless admitted to bail. [Rule
117, Sec. 5] The order must state either release of the accused or cancellation of his bond.
Exception: When there is no order sustaining the motion is made OR if there is one, 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.
Exception to the exception: If he is in custody for another charge.

Remedies of the prosecution

General Rule: To amend the information to correct the defects if the TC makes the order, and
thereafter prosecute on the basis of the amended information. [Rule 117, Sec. 4]
Exception: Prosecution is precluded where the ground for quashal would bar another
prosecution for the same offense.

Prosecution may appeal from the order of quashal to the appellate court.

If the information was quashed because it did not allege the elements of the offense, but the
facts so alleged constitute another offense under a specific statute, the prosecution may file a
complaint for such specific offense where dismissal is made prior to arraignment and on MTQ.
[People v. Purisima (1978)]

Order denying MTQ Order granting MTQ

Interlocutory Final Order
Not appealable absent a showing of GAD. If Immediately appealable but subject to rules
there is GAD, then file petition for certiorari on double jeopardy
Does not dispose of the case upon its merits Disposes of the case upon its merits
Proper remedy: appeal after the trial Proper remedy: appeal the order
Consequence: Consequence:
Arraignment (Prosecution): Amend information if possible

Note: The remedy for an order denying a MTQ is to go to trial, without prejudice to reiterating
the special defenses invoked in their MTQ. [Serana v. Sandiganbayan (2008)] However, if the
court in denying the motion to quash acts without or in excess of jurisdiction or with grave abuse
of discretion, then certiorari or prohibition lies. [Lazarte v. Sandiganbayan; Javier v.
Sandiganbayan (2009)]

EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION
(BAR 1994)
General Rule: A MTQ will not be a bar to another prosecution for the same offense. [Rule 117,
Sec. 6]
Exception: If the ground for the quashal is either:
(1) The criminal action or liability has been extinguished; OR
(2) The accused has been previously convicted, or in jeopardy of being convicted, or acquitted
of the offense charged.

Bar(2010) What is "res judicata in prison grey"?

“Res judicata in prison grey” is the criminal concept of double jeopardy, as “res judicata” is the
doctrine of civil law (Trinidad vs. Office of the Ombudsman, G.R. No. 166038, December 4,
2007). Described as “res judicata in prison grey,” the right against double jeopardy prohibits the
prosecution of a person for a crime of which he has been previously acquitted or convicted.
The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that
he shall not thereafter be subjected to the danger and anxiety of a second charge against him
for the same offense (Joel B. Caes vs. Intermediate Appellate Court, November 6, 1989).

RULE OF DOUBLE JEOPARDY

When a person is charged with an offense and the case is terminated either by acquittal or
conviction or in any other manner without the express consent of the accused, the latter
cannot again be charged with the same or identical offense. [Rule 117, Sec. 3(i)]

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KINDS OF DOUBLE JEOPARDY [Art III, Sec. 21, Consti]
(1) No person shall be put twice in jeopardy for the SAME OFFENSE.
(2) When an act punished by a law, conviction or acquittal shall be a bar to another
prosecution for the SAME ACT.

SAME OFFENSE
The offenses are penalized either by different sections of the same law or by different
statutes. Must examine the essential elements of each:
Test: WON evidence that proves one offense would likewise prove the other. [People v.
Ramos (1961)]
It is not necessary to have absolute identity. [People v. Relova (1987)]

SAME ACT
An offense penalized by law is, by definition, different from an offense penalized under a
statute. Hence, they would never constitute double jeopardy. However, the second
sentence of the constitutional protection was precisely intended to extend to situations not
covered by the first sentence. Although the prior offense charged under a law be different
from the offense charged under another law, the constitutional protection is available
provided that both arise from the same act or set of acts. [People v. Relova (1987)]

REQUISITES TO SUCCESSFULLY INVOKE DOUBLE JEOPARDY

To raise the defense of double jeopardy, three requisites must be present:
(1) a first jeopardy must have attached prior to the second;
(2) the first jeopardy must have been validly terminated; and
(3) the second jeopardy must be for the same offense as that in the first.
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c)
after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the accused.

REQUISITES FOR FIRST JEOPARDY TO ATTACH

(a) The accused has been convicted/acquitted, OR the case against him was
dismissed/terminated without his express consent;
(b) That the conviction, acquittal or dismissal was made by the court with competent
jurisdiction;
(c) There is a valid complaint or information or other formal charge is sufficient in form and
substance to sustain conviction;
(d) The accused pleaded to the charge. [Riano, citing several cases People v. Honrales (2010)]
Exception: A dictated, coerced and scripted verdict of acquittal is a void judgment. It neither
binds nor bars anyone. [Galman v. Sandiganbayan (1986)]

“WITHOUT EXPRESS CONSENT”

If consent is not express, dismissal will be regarded as final – i.e. with prejudice to refilling. [Caes
v. IAC (1989)]
Exception: Dismissal has the effect of acquittal even with the consent of the accused when
predicated on (1) insufficiency of the prosecution’s evidence or (2) denial of the right to a
speedy trial. [Alamario v. CA (2001)]

DISMISSAL = ACQUITTAL
(a) Demurrer to evidence
(b) Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the
accused or with his express consent)

DISMISSAL VS. ACQUITTAL

Dismissal Acquittal
Does not decide the case on the merits. Does Always based on the merits. Defendant’s guilt
not determine innocence or guilt was not proven beyond reasonable doubt.
Double jeopardy will not always attach Double jeopardy always attaches

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Tests for determining whether the two offenses are identical: There is IDENTITY between the two
offenses is when the second offense is an attempt to or frustration of or is necessarily included in
the offense charged in the first information.

Exception to the Identity Rule:

(1) The graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge.
(2) The facts constituting the graver charge became known or were discovered only after a
plea was entered in the former complaint or information.
(3) The plea of guilty to the lesser offense was made without the consent of the prosecutor and
of the offended party EXCEPT when offended party failed to appear during such
arraignment.

Case: DISINI JR. ET. AL. VS SEC. OF JUSTICE (2014)

Cyber Crime Law merely expands the scope of the Anti-Child Pornography Act of 2009 (ACPA) so as to include
identical activities in cyberspace. ACPA’s definition of child pornography in fact already covers the use of
“electronic, mechanical, digital, optical, magnetic or any other means.”. Thus charging the offender under both the
Cybercrime Law and ACPA would likewise be tantamount to a violation of the constitutional prohibition against
double jeopardy.

Bar (2014)
McJolly is a trouble-maker of sorts, always getting into brushes with the law. In one incident, he drove his Humvee
recklessly, hitting a pedicab which sent its driver and passengers in different directions. The pedicab driver died,
while two (2) of the passengers suffered slight physical injuries. Two (2) Informations were then filed against
McJolly. One, for Reckless Imprudence Resulting in Homicide and Damage to Property, and two, for Reckless
Imprudence Resulting in Slight Physical Injuries. The latter case was scheduled for arraignment earlier, on which
occasion McJolly immediately pleaded guilty. He was meted out the penalty of public censure. A month later,
the case for reckless imprudence resulting in homicide was also set for arraignment. Instead of pleading, McJolly
interposed the defense of double jeopardy. Resolve. (4%)
SUGGESTED ANSWER:
The defense of double jeopardy is meritorious and the second information for reckless imprudence resulting in
homicide should be quashed on the ground of double jeopardy. The Supreme Court has held that reckless
imprudence is a single crime and that its consequences on persons and property are material only to determine
the penalty. Here there was only one act and crime of reckless imprudence. The death, the physical injuries,
and the damage to the tricycle are only consequences of the same reckless act of McJolly. Hence there was
double jeopardy when a second information arising from the same reckless act was brought against the
accused. (Ivler v. Modesto-San Pedro, 17 November 2010).

Bar (2000)
BC is charged with illegal possession of firearms under an Information signed by a Provincial Prosecutor. After
arraignment but before pre-trial, BC found out that the Provincial Prosecutor had no authority to sign and file the
information as it was the City Prosecutor who has such authority. During the pre-trial, BC moves that the case
against him be dismissed on the ground that the Information is defective because the officer signing it lacked the
authority to do so. The Provincial Prosecutor opposes the motion on the ground of estoppel as BC did not move
to quash the Information before arraignment. If you are counsel for BC, what is your argument to refute the
opposition of the Provincial Prosecutor? (5%)
SUGGESTED ANSWER:
I would argue that since the Provincial Prosecutor had no authority to file the information, the court did not
acquire jurisdiction over the person of the accused and over the subject matter of the offense charged. (Cudia
v. Court of Appeals, 284 SCRA 173 [1999]). Hence, this ground is not waived if not raised in a motion to quash and
could be raised at the pretrial. (Sec. 8, Rule 117, Rules of Court).

Bar (2005)
Rodolfo is charged with possession of unlicensed firearms in an Information filed in the RTC. It was alleged therein
that Rodolfo was in possession of two unlicensed firearms: a .45 caliber and-a .32 caliber. Under Republic Act No.
8294, possession of an unlicensed .45 caliber gun is punishable by prision mayor in its minimum period and a fine
of P30.000.00, while possession of an unlicensed .32 caliber gun is punishable by prision correctional in its
maximum period and a fine of not less than P15,000.00. As counsel of the accused, you intend to file a motion to
quash the Information. What ground or grounds should you invoke? Explain. (4%)
SUGGESTED ANSWER:
The ground for the motion to quash is that more than one offense is charged in the information. (Sec. 3[f], Rule
117, 2000 Rules of Criminal Procedure) Likewise, the RTC has no jurisdiction over the second offense of possession
of an unlicensed .32 caliber gun, punishable by prision correctional in its maximum period and a fine of not less
than P15.000.00. It is the MTC that has exclusive and original jurisdiction over all offenses punishable by
imprisonment not exceeding six years. (Sec. 2, R.A. No. 7691, amending B.P. Blg. 129)

Bar (1998)
1 Give two (2) grounds to quash an Information.[2%]
2 If the Information is not accompanied by a certification that a preliminary investigation has been conducted. Is
the Information void? [3%]
SUGGESTED ANSWER:

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 1. see: (Sec. 3, Rule 117. Rules of Criminal Procedure.)
SUGGESTED ANSWER:
2. No. The certification which is provided in Sec. 4, Rule 112. Rules of Criminal Procedure, is not an indispensable
part of the information. (People vs. Lapura, 255 SCRA 85.)

Bar (2009)
Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel, Leyte, are charged
before the Sandiganbayan for violation of Section 3(e), RA no. 3019 (Anti-Graft and Corrupt Practices Act). The
information alleges, among others, that the two conspired in the purchase of several units of computer through
personal canvass instead of a public bidding, causing undue injury to the municipality. Before arraignment, the
accused moved for reinvestigation of the charge, which the court granted. After reinvestigation, the Office of
the Special Prosecutor filed an amended information duly signed and approved by the Special Prosecutor,
alleging the same delictual facts, but with an additional allegation that the accused gave unwarranted benefits
to SB enterprises owned by Samuel. Samuel was also indicted under the amended information. Before Samuel
was arraigned, he moved to quash the amended information on the ground that the officer who filed had no
authority to do so. Resolve the motion to quash with reasons.
SUGGESTED ANSWER:
The motion to quash filed by Samuel should be granted. There is no showing that the special prosecutor was duly
authorized or deputized to prosecute Samuel. Under R.A. No. 6770, also known as the Ombudsman Act of 1989,
the Special Prosecutor has the power and authority, under the supervision and control of the Ombudsman, to
conduct preliminary investigation and prosecute criminal cases before the Sandiganbayan and perform such
other duties assigned to him by the Ombudsman (Calingin vs. Desierto, 529 SCRA 720 [2007]). Absent a clear
delegation of authority from the Ombudsman to the Special Prosecutor to file the information, the latter would
have no authority to file the same. The Special Prosecutor cannot be considered an alter ego of the
Ombudsman as the doctrine of qualified political agency does not apply to the office of the Ombudsman. In
fact, the powers of the office of the Special Prosecutor under the law may be exercised only under the
supervision and control and upon authority of the Ombudsman (Perez vs. Sandiganbayan, 503 SCRA 252 [2006]).

PROVISIONAL DISMISSAL (BAR 2003) [SEC. 8, RULE 117]

A case is dismissed without prejudice to its being refiled or revived.

Rule: Cases are provisionally dismissed where there has already been arraignment and the
accused consented to a provisional dismissal.

Grounds for provisional dismissal

Section 8 does not state the grounds for provisional dismissal. However, according to the case
of Los Baños v. Pedro (2007), the delimitation of the grounds available in a MTQ suggests that
where the grounds cited are those listed under Section 3, then the appropriate remedy is to file
a motion to quash, and not any other remedy. Conversely, where a ground does not appear
under Section 3, then a motion to quash is not a proper remedy. A motion for provisional
dismissal may then apply if the conditions required by Section 8 obtain.

WHEN DISMISSAL BECOMES PERMANENT: TIME BAR RULE

(a) One year after issuance of the order without the case having been revived for offenses
punishable: [Rule 117, Sec. 8]
(1) By imprisonment not exceeding 6 yrs
(2) By fine of any amount
(3) By both
(b) 2 yrs after issuance of the order without the case having been revived for offenses
punishable by imprisonment of more than 6 yrs.
(c) The State may revive beyond the periods provided there is a justifiable necessity for the
delay.
(d) The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to the
accused. The time-bar under the new rule was fixed for the benefit of the State and the
accused, and not for the accused only. [People v. Lacson (2003)]

Conditions sine qua non to the application of the time-bar rule:

(a) The prosecution with the express conformity of the accused OR the accused moves for the
provisional (sin perjucio) dismissal of the case; OR both the prosecution and the accused
move for a provisional dismissal of the case;
(b) The offended party is notified of the motion for the provisional dismissal of the case
(c) The court issues an order granting the motion and dismissing the case provisionally;
(d) The public prosecutor is served with a copy of the order of provisional dismissal of the case.
[People v. Lacson (2003)]

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HOW TO REVIVE A CASE:
(1) Refiling of the information
(2) Filing of a new information for the same offense or one necessarily included in the original
offense charged.

Who can file the Motion?

(1) By the prosecution, with the express conformity of the accused
(2) By the accused
(3) By both

Requisites for Provisional Dismissal (See Conditions sine qua non for time-bar rule):
(1) Consent of the prosecutor
(2) Consent of the accused
(3) Notice to the offended party

Rule 118 Pre-trial

JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC):

Sec. 9: Application of rule to criminal actions. –
(a) This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty
involved; or
(3) With respect to the civil aspect of the actions, whatever the penalties involved are.
(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days
before the pre-trial, serving copies of the same upon the accused. The complainant or
public prosecutor shall attach to the affidavits such documentary or object evidence as he
may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit,
documentary, or object evidence shall be admitted at the trial.
(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit his judicial affidavit as well as those of his
witnesses to the court within ten days from receipt of such affidavits and serve a copy of
each on the public and private prosecutor, including his documentary and object evidence
previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct
testimonies of the accused and his witnesses when they appear before the court to testify.

MATTERS TO BE CONSIDERED DURING PRETRIAL

Section 1. Pre-trial is MANDATORY in all criminal cases. Its main objective is to achieve an
expeditious resolution of the case.

COVERAGE [RULE 118, SEC. 1]

The court shall order pre-trial in ALL criminal cases cognizable by the Sandiganbayan, RTC and
MTC or MTCC or MCTC or MeTC.

PERIOD [RULE 118, SEC. 1]

General Rule: After arraignment and within 30 days from the time the court acquires jurisdiction
over the person of the accused.
Exception: If a shorter period is provided by special or SC circulars.

THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES

[RULE 118, SEC. 1] PS-MaWa-MoOt
(a) Plea bargaining
(b) Stipulation of facts
(c) Marking for identification of evidence
(d) Waiver of objections to admissibility of evidence
(e) Modification of the order of trial if accused admits the charge but interposes a lawful
defense (reverse trial)
(f) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of
the case
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ROLE OF THE JUDGE
During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all
questions must be directed to him to avoid hostilities between the parties. [SC AM 03-1-09-SC]

STIPULATION OF FACTS
This is no longer prohibited in criminal cases. [People vs Hernandez (1996)]
However, in a case of rape with the allegation that victim is below 12 yrs of age which qualifies
said crime and increases its penalty to death, nothing short of proof beyond reasonable doubt
of every fact necessary to constitute the elements of the crime must be established.
Circumstances that qualify a crime and increases its penalty to death cannot be the subject of
stipulation. [People vs Sitao (2002)]

MARKING FOR IDENTIFICATION OF THE EVIDENCE OF PARTIES

Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation
of evidence.

WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA
OFFERED BY THE ACCUSED

Plea Bargaining
It is the process in criminal process whereby the 1) accused, 2) offended party, and the 3)
prosecution work out a mutually satisfactory disposition of the case subject to court approval.
[See also DOJ Circular No. 35 (June 31, 1990), as amended by Circular No. 55 for the guidelines
on plea bargaining as well as note on Rule 116]

It usually involves the defendant’s pleading guilty to a lesser offense or to one or some of the
counts of a multi-count indictment in return for a lighter sentence than that for the graver
charge. [People v. Mamarion (2003)]

(Bar Matter) The conviction of the accused of the lesser offense precludes the filing and
prosecution of the offense originally charged in the information, EXCEPT when the plea of guilty
to a lesser offense is without the consent of the offended party and the prosecutor. [People v.
De Luna (1989); Rule 117, Sec. 7 (c)]

Rule 116, Section 2: Plea of guilty to a lesser offense. —

At arraignment, the accused, with the consent of the offended party and the 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.

EFFECT WHEN THE PROSECUTION AND THE OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE
ACCUSED
The Court shall:
(a) Issue an order which contains the plea bargaining arrived at;
(b) Proceed to receive evidence on the civil aspect of the case; and
(c) Render and promulgate judgment of conviction, including the civil liability or damages duly
established by the evidence [SC AM 03-1-09-SC]

PRE-TRIAL AGREEMENT
Form
General Rule: Court approval is required.
Exception: Agreements not covering matters referred to in Rule 118, Sec. 1. [SC A.M. No. 03-1-
09-SC]

REQUIRED FORM OF PRE-TRIAL AGREEMENT

(1) Must be in writing
(2) Signed by the accused
(3) Signed by his counsel
If this is not followed, the admissions cannot be used against the accused (i.e. inadmissible in
evidence). The constitutional right to present evidence is waived expressly.

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EFFECT
The stipulations become binding on the parties who made them. They become judicial
admissions of the fact or facts stipulated. (2008 Bar)

Even if placed at a disadvantageous position, a party may not be allowed to rescind them
unilaterally; he must assume the consequences of the disadvantage. [Bayas vs Sandiganbayan
(2002)]

NON-APPEARANCE DURING PRE-TRIAL [RULE 118, SEC. 3]

The court may impose proper sanctions or penalties (reprimand, fine or imprisonment), if
counsel for the accused or the prosecutor:
(1) does not appear at the pre-trial conference; and
(2) does not offer an acceptable excuse,

Note: The accused is not included because his constitutional right to remain silent may be
violated. The accused is not required to attend (unless ordered by the court) and is merely
required to sign the written agreement arrived at in the pre-trial conference, if he agrees to the
contents of such.

Complainant is also not required to appear during pre-trial. It is the prosecutor who is required
to appear at the pre-trial.

PRE-TRIAL ORDER [RULE 118, SEC. 4]

It is issued by the court Within 10 days after the pre-trial. [SC AM 03-109-SC]

CONTENTS
(a) Actions taken;
(b) Facts stipulated;
(c) Evidence marked;
(d) Admissions made;
(e) The number of witnesses to be presented; and
(f) The schedule of trial.
Note: Letters (d) to (f) are added by SC AM 03-1-09SC to the requirements under Rule 118,
Sec. 4

EFFECT
(a) Binds the Parties
The procedure is substantially the same in civil cases, except that any modification of the
pretrial order in civil cases must be made before the trial. No such limitation is provided for in
criminal cases. (1997 Bar)

(b) Limits the trial to those matters not disposed of

(c) Control the course of the action during trial

Exception: If modified by the court to prevent manifest injustice.

REFERRAL OF SOME CASES FOR COURT ANNEXED MEDIATION AND

JUDICIAL DIPUTE RESOLUTION

A.M. No. 03-1-09-SC RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-
DISCOVERY MEASURES RESOLUTION CRIMINAL CASES

After the arraignment, the court shall forthwith set the pre-trial conference within thirty days
from the date of arraignment, and issue an order:
(a) Requiring the private offended party to appear thereat for purposes of plea-bargaining
except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other
matters requiring his presence;
(b) Referring the case to the Branch COC, if warranted, for a preliminary conference to be set
at least three days prior to the pre-trial to mark the documents or exhibits to be presented by

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 the parties and copies thereof to be attached to the records after comparison and to
consider other matters as may aid in its prompt disposition; and
(c) Informing the parties that no evidence shall be allowed to be presented and offered during
the trial other than those identified and marked during the pre-trial except when allowed by
the court for good cause shown. In mediatable cases, the judge shall refer the parties and
their counsel to the PMC unit for purposes of mediation if available.
Bar (2004)
Mayor TM was charged of malversation through falsification of official documents. Assisted by Atty. OP as
counsel de parte during pre-trial, he signed together with Ombudsman Prosecutor TG a "Joint Stipulation of
Facts and Documents," which was presented to the Sandiganbayan. Before the court could issue a pre-trial
order but after some delay caused by Atty. OP, he was substituted by Atty. QR as defense counsel. Atty. QR
forthwith filed a motion to withdraw the "Joint Stipulation," alleging that it is prejudicial to the accused
because it contains, inter alia, the statement that the "Defense admitted all the documentary evidence of
the Prosecution," thus leaving the accused little or no room to defend himself, and violating his right against
self-incrimination. Should the court grant or deny QR's motion? Reason. (5%)
SUGGESTED ANSWER: The court should deny QR's motion. If in the pretrial agreement signed by the accused
and his counsel, the accused admits the documentary evidence of the prosecution, it does not violate his
right against selfincrimination. His lawyer cannot file a motion to withdraw. A pre-trial order is not needed.
(Bayas v. Sandiganbayan, 391 SCRA 415(2002}). The admission of such documentary evidence is allowed by
the rule. (Sec. 2 of Rule 118; People v. Hernandez, 260 SCRA 25 [1996]).

Rule 119 Trial

INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW

PRESENCE IS MANDATORY: (Bar Matter)
(a) During trial, for purposes of identification;
(b) At arraignment; [Rule 116, Sec. 1(b)]
(c) At the promulgation of judgment;
Exception: If the conviction is for a light offense.
[Rule 120, Sec. 6]
Bar (2007) What is REVERSE TRIAL and when may it be resorted to?
SUGGESTED ANSWER: A reverse trial is one where the defendant or the accused present evidence ahead of the
plaintiff or prosecution and the latter is to present evidence by way of rebuttal to the former‟s evidence. This kind of
trial may take place in a civil case when the defendant‟s Answer pleads new matters by way of affirmative defense,
to defeat or evade liability for plaintiff‟s claim which is not denied but controverted.
In a criminal case, a reverse trial may take place when the accused made known to the trial court, on arraignment,
that he adduce affirmative defense of a justifying or exempting circumstances and thus impliedly admitting the act
imputed to him. The trial court may then require the accused to present evidence first, proving the requisites of the
justifying or exempting circumstance he is invoking, and the prosecution to present rebuttal evidence controverting
the same.

REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS

(a) The witness must be either absent or unavailable
(b) The absent or unavailable witness must be essential [Riano]

ABSENCE OR UNAVAILABILITY OF AN ESSENTIAL WITNESS

“Absent” means that his whereabouts are unknown or cannot be determined by due diligence.

“Unavailable” means that his whereabouts are known but presence for trial cannot be
obtained by due diligence.

Essential witness: ‘indispensible,’ ‘necessary,’ or ‘important in the highest degree’

The period of delay resulting from the absence or unavailability of an essential witness shall be
excluded in computing the time within which trial must commence. [Rule 119, Sec. 3]

However, in any case in which:

(1) Counsel for the accused, the public prosecution or public attorney,
(2) KNOWINGLY allows the case to be set for trial WITHOUT disclosing the fact that a necessary
witness would be unavailable for trial OR otherwise willfully fails to proceed to trial without
justification consistent with the provisions of this Act, The court may, without prejudice to any
appropriate criminal and/or administrative charges to be instituted by the proper party
against the erring counsel if and when warranted, punish any such counsel or attorney.
(Speedy Trial Act)

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CONDITIONAL EXAMINATION [RULE 119, SEC. 15]
When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to leave the Philippines with no definite date of
returning, he may forthwith be conditionally examined before the court where the case is
pending.

Such examination, in the presence of the accused, or in his absence after reasonable notice to
attend the examination has been served on him, shall be conducted in the same manner as an
examination at the trial.

Failure or refusal of the accused to attend the examination after notice shall be considered a
waiver. The statement taken may be admitted in behalf of or against the accused.

TRIAL IN ABSENTIA (1998 BAR)

REQUISITES
(1) Accused has been arraigned;
(2) He was duly notified of trial;
(3) His failure to appear is unjustified.

General rule: The right to be present at one’s trial may be waived.

Exceptions: At certain stages: [Lavides v. CA (2000)]
(a) Arraignment and plea
(b) Promulgation of sentence, unless for light offense
(c) During trial whenever necessary for ID purposes
Exception to the ID purposes exception: If the accused unqualifiedly admits in open court after
arraignment that he is the person named as the defendant in the case on trial.

REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD
EFFECT OF DELAY [RULE 119, SEC. 9]
On motion of the accused, the information may be dismissed on the ground of denial of his
right to speedy trial. (2007 Bar)

Factors to consider: (a) duration of the delay; (b) reason therefor; (c) assertion of the right or
failure to assert it; and (d) prejudice caused by such delay.
Must be raised prior to trial; otherwise, the right to dismiss is considered waived under Rule 119,
section 9.

Burden of Proof
(a) The accused has the burden of proving the ground of denial of right to speedy trial for the
motion.
(b) The prosecution has the burden of going forward with the evidence to establish the
exclusion of time under Rule 119, Sec. 3. Subject to the rules on double jeopardy. Hence, if
with prejudice, the case cannot be revived anymore.
Bar (2010)
(1) Enumerate the requisites of a "trial in absentia " (2%) and a "promulgation of judgment in absentia" (2%).
SUGGESTED ANSWER:
The requisites of a valid trial in absentia are: (1) accused‟s arraignment; (2) his due notification of the trial; (3) his
unjustifiable failure to appear during trial (Bernardo vs. People, G.R. No. 166980, April 4, 2007).
The requisites for a valid promulgation of judgment are: (a) A valid notice of promulgation of judgment; (b) Said
notice was duly furnished to the accused personally or thru counsel; (c) Accused failed to appear on the
scheduled date of promulgation of judgment despite due notice; (d) Such judgment be recorded in the criminal
docket; (e) Copy of said judgment had been duly served upon the accused or his counsel.

(2) Name two instances where the trial court can hold the accused civilly liable even if he is acquitted. (2%)
SUGGESTED ANSWER: The instances where the civil liability is not extinguished despite the acquittal of the
accused where: (1) The acquittal is based on reasonable doubt; (2) Where the court expressly declares that the
liability of the accused is not criminal but only civil in nature; and (3) Where the civil liability is not derived from or
based on the criminal act of which the accused is acquitted (Remedios Nota Sapiera vs. Court of Appeals,
September 14, 1999).

REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS

DISCHARGE OF A CO-ACCUSED

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General rule: It is the duty of the prosecutor to include all the accused in the
complaint/information.
Exception: Prosecutor may ask the court to discharge one of them after complying with the
conditions prescribed by law. [Rule 119, Sec. 17] This applies only when the information has
already been filed in court.

REQUISITES [RULE 119, SEC. 17]

(1) Two or more persons are jointly charged with the commission of any offense.
(2) Upon motion of the prosecution before resting its case
Petition for discharge is filed before the defense has offered its evidence.
(3) Hearing in support of the discharge where the prosecution is to present evidence and the
sworn statement of each proposed state witness.
(4) The court is satisfied of the following:
(a) Absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense,
except the testimony of the said accused;
(c) The testimony can be substantially corroborated in its material points;
(d) The accused does not appear to be the most guilty;
(e) The accused has not, at any time, been convicted of any offense involving moral
turpitude
Note: The evidence adduced in support of the discharge shall automatically form part of the
trial.

EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS

General rule: The order of discharge shall: [Rule 119, Sec. 18]
(a) Amount to an acquittal of the discharged accused;
(b) Bar future prosecutions for the same offense.
Exception: If the accused fails/refuses to testify against his co-accused in accordance with his
sworn statement constituting the basis for his discharge.

Any error in asking for and in granting the discharge cannot deprive the discharged of the
acquittal and the constitutional guaranty against double jeopardy. [People v. Verceles (2002)]

Conviction of the accused against whom discharged state witness testified is NOT required.

Subsequent amendment of the information does not affect discharge. [People v. Taruc (1962)]
Bar (2006)
As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state witness. What
procedure will you take? (2.5%)
SUGGESTED ANSWER:
As counsel of an accused charged with homicide, the procedure that can be followed for the accused to be utilized as a
state witness is to ask the Prosecutor to recommend that the accused be made a state witness. It is the Prosecutor who must
recommend and move for the acceptance of the accused as a state witness. The accused may also apply under the Witness
Protection Program.

DEMURRER TO EVIDENCE
General Rule: An order granting the accused’s demurrer to evidence amounts to an acquittal.
Exception: When there is a finding that there was grave abuse of discretion on the part of the
trial court in dismissing a criminal case by granting the accused’s demurrer to evidence.

The order GRANTING the demurrer is not appealable but may be reviewed via certiorari (Rule
65). Purpose: to prevent the filing of demurrer based on frivolous and flimsy grounds.

HOW INITIATED [RULE 119, SEC. 23]

A. By the court motu proprio, after giving the prosecution the opportunity to be heard;
B. B. Upon demurrer to evidence filed by the accused:
(a) With leave of court;
(b) Without leave of court.

MOTION FOR LEAVE TO FILE DEMURRER [RULE 119, SEC. 23]

(a) It must specifically state its grounds.

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(b) It must be filed within a NON-EXTENDIBLE period of 5 days after the prosecution rests (i.e.
after the court shall have ruled on the prosecution’s formal offer). Prosecution may then oppose
within a non-extendible period of 5 days from receipt.
(c) If leave of court is granted, the demurrer must be filed within a non-extendible period of 10
days from notice. Prosecution may oppose within a similar period.

EFFECT OF GRANTING DEMURRER

The court dismisses the action on the ground of insufficiency of evidence. [Rule 119, Sec. 23]

Sufficient evidence for frustrating a demurrer is evidence that proves: [Gutib v. CA (1999)]
(a) Commission; and
(b) Precise degree of participation.

EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE DEMURRER

(a) Accused should choose to insist on filing demurrer even without leave (see consequences
below) OR to present evidence for his defense
(b) Order denying the motion for leave or order denying the demurrer itself, is not reviewable by
appeal or by certiorari before judgment. [Rule 119, Sec. 23]
(c) It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be
taken from the decision on the merits [Cruz v. People (1999)]

RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER DEMURRER IS DENIED [RULE 119, SEC. 23]
Filed with Leave of Court Filed without Leave of Court
May adduce evidence in his defense Waives the right to present evidence
Purpose: To determine WON demurrer was Submits the case for judgment on the basis of
filed merely to stall the proceedings the evidence for the prosecution
Implied leave of court is no longer sufficient If there are 2 or more accused and only one
and prevents accused from presenting presents a demurrer without leave of
evidence [e.g. accused files motion with court,
reservation to present evidence in case
motion is denied] General rule: The court may defer resolution
until decision is rendered on the other
accused
Exception: If it can be shown from the decision
that the resolution on the demurrer was
rendered not only on the basis of the
prosecution’s evidence but also on the
evidence adduced by his co-accused

Bar (2003)
In an action for violation of Batas Pambansa Big. 22, the court granted the accused’s demurrer to evidence which
he filed without leave of court. Although he was acquitted of the crime charged, he, however, was required by the
court to pay the private complainant the face value of the check. The accused filed a Motion of Reconsideration
regarding the order to pay the face value of the check on the following grounds: a) the demurrer to evidence
applied only to the criminal aspect of the case; and b) at the very least, he was entitled to adduce controverting
evidence on the civil liability. Resolve the Motion for Reconsideration. (6%)
SUGGESTED ANSWER:
(a) The Motion for Reconsideration should be denied. The ground that the demurrer to evidence applied only to the
criminal aspect of the case was not correct because the criminal action for violation of Batas Pambansa Blg. 22
included the corresponding civil action. (Sec. 1(b) of Rule 111).
(b) The accused was not entitled to adduce controverting evidence on the civil liability, because he filed his
demurrer to evidence without leave of court. (Sec. 23 of Rule 119).

Rule 120 Judgment

FORM
(a) Written in official language.
If given verbally, it is incomplete. [People v. Catolico (1972)]
(b) Personally and directly prepared by the judge.
(c) Signed by the judge.

The judge who presided over the entire trial would be in a better position to ascertain the
truth or falsity of the testimonies.

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 But the judge who only took over can render a valid decision by relying on the transcript. It
does not violate due process. [People v. Badon (1999)]

(d) Contains clearly and distinctly a statement of facts proved and the law upon which
judgment is based.

JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE WHO HEARD THE CASE
The fact alone that the judge who heard the evidence was not the one who rendered the
judgment but merely relied on the record of the case does not render his judgment erroneous
or irregular, especially when the evidence on record is sufficient to support its conclusion.
[People v. Alfredo (2010)]

CONTENTS OF JUDGMENT
Judgment of Conviction [SEC. 2, RULE 119]
The judgment of conviction shall state:
(1) The legal qualification of the offense constituted by the acts committed by the accused
and the aggravating/mitigating circumstances which attended its commission.
(2) The participation of the accused in the offense, whether as principal, accomplice or
accessory after the fact.
(3) The penalty imposed upon the accused.
The penalty should not be imposed in the alternative. There should be no doubt as to the
offense committed and the penalty for it.
(4) The civil liability or damages caused by his wrongful act/omission to be recovered from the
accused by the offended party, if there is any, unless the enforcement of the civil liability by a
separate civil action has been reserved/waived.

Proof Beyond Reasonable Doubt

Degree of proof which produces conviction in an unprejudiced mind. [People v. Bacalzo
(1991)]

Judgment for two or more offenses [Sec. 3, Rule 120]

General Rule: Complaint/information must charge only one offense [Sec. 13, Rule 110]
Exception: Cases in which existing laws prescribe a single punishment for various offenses [Sec.
13, Rule 110]

General Rule: Duplicitous information is subject to a motion to quash [Sec. 3(f), Rule 117]
Exception: Defect is waived when accused fails to move for quashal.

THUS, where the accused fails to object to 2 or more offenses charged in a single
information/complaint before trial, the court may:
(a) Convict him of as many offenses as are charged and proved; and
Exception: One of the offenses has been a necessary means for committing the other offense
and where both have been the result of a single act.

(b) Impose on him the penalty for each offense, setting out separately the findings of fact and
law in each offense.
Exception: Maximum duration of offense: Follow the three-fold rule on the service of penalty.

Judgment in case of variance between allegation and proof [Sec. 4, Rule 120]
General rule: The defendant can be convicted only of the crime with which he is charged.
Rationale: He has the right to be informed of the nature of the offense with which he is charged
before he is put on trial. [People v. Guevarra]

Exception: He can be convicted of an offense proved provided it is included in the charge, or

of an offense charged which is included in that which is proved. [Rule 120, Sec. 4]
(a) The accused can be convicted of an offense only when it is both charged and
proven.
(b) The mere fact that the evidence presented would indicate that a lesser offense
outside the court’s jurisdiction was committed does not deprive the court of its
jurisdiction, which had vested in it under the allegations in the information.

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Exception to the exception: Where there are facts that supervened after the filing of the
information which change the nature of the offense.

When an offense includes or is included in another [Rule 120, Sec. 5]

The offense charged necessarily includes the offense proved when some of the essential
elements/ingredients of the former, as alleged in the complaint/information, constitute the
latter.
Effect
The accused shall be convicted of: [Rule 120, Sec. 4]
(1) The offense proved which is included in the offense charged; or
(2) The offense charged which is included in the offense proved
The right to be informed of the charges has not been violated because where an accused is
charged with a specific crime, he is duly informed also of lesser crimes/offenses included
therein. [People v. Villamar (1998)]

Where a complex crime is charged and the evidence fails to support the charge as to one of
the component offenses, the accused can be convicted of the one which is proven.

State liability for unjust conviction

The DOJ Board of Claims is authorized to receive/evaluate/process/investigate claims of victims
of unjust imprisonment/detention and victims of violent crimes. [RA 7309]
Requirements for compensation:
(1) Unjust accusation;
(2) Unjust conviction; and
It is the same as knowingly rendering an unjust judgment -It is contrary to law or is not
supported by the evidence and the same is made with conscious and deliberate intent
to do an injustice. [Art. 204, RPC]
(3) Unjust imprisonment.

ACQUITTAL
A finding of not guilty based on the merits, either:
(a) The evidence does not show that his guilt is beyond reasonable doubt; or
(b) A dismissal of the case after the prosecution has rested its case and upon motion of the
accused on the ground that the evidence fails to show beyond doubt that accused is guilty.

Reasonable Doubt
Doubt engendered by an investigation of the whole proof and an inability, after such
investigation, to let the mind rest upon the certainty of guilt. Change def.

Acquittal [Rule 120] Dismissal [Rule 117]

Terminates the case
Decision on the merits based on a finding that Not on the merits but no finding that accused
the accused is not guilty is not guilty

The judgment shall state whether:

(1) The evidence of the prosecution absolutely failed to prove the guilt of the accused; or
(2) It 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 [Sec. 2, Rule 120]

Number 2 does not extinguish the civil liability arising from his acts, since the civil liability arose
not from a crime but from the damage caused by such acts, which can be proven by a lower
quantum of evidence.

The court is not permitted to censure the accused in a judgment for acquittal – no matter how
light, a censure is still a punishment.

Acquittal based on reasonable ground does not bar a separate civil action based on quasi-
delict. [Lontoc v. MD Transit (1988)]

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The Court may hold accused civilly liable even when it acquits him. Acquittal extinguishes civil
liability only when the judgment includes a declaration that the facts from which the civil liability
might arise did not exist.
(a) The court may nonetheless hold the accused civilly liable in favor of the offended party,
or it may deny the award of civil damages expressly or impliedly by being silent on the
matter.
(b) The losing party may appeal the ruling on the civil liability, as in any other ordinary
appeal, in his name and not in the name of the People
The Judge acquitting an accused cannot punish him at the same time.

PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA

PROMULGATION
An official proclamation or announcement of a judgment or order.

Requisites for the valid promulgation of a court decision:

(1) There must be a judge or judges legally appointed or elected and actually acting either de
jure or de facto, and
(2) The said judgment must be duly signed and promulgated during the incumbency of the
judge who signed it. [Miguel v Municipal Trial Court (1986)]

Q: Judge Montecillo was temporarily detailed at Brach X. He penned the decision on 22 May
1978. His temporary designation at Branch X expired only on 10 June 1978 when another
judge qualified for the position. Does the promulgation of the decision valid?
A; Judge Montecillo was still an incumbent judge of the Court of First Instance of Quezon, being
the permanent judge of Branch III, at the time his decision was promulgated. Thus, he
continued to possess authority to dispose of the case. In fact, even after his temporary
designation, he continued to have authority and could decide the case as it was one of
those submitted to him for decision during his detail. Rule to remember: A trial judge whose
temporary detail to a vacant branch has expired remains to be the incumbent judge of the
branch of the court where he is permanently assigned. Thus, he may still decide cases
submitted to him for decision during his temporary detail in the vacant branch even after the
vacancy has been filled.

Judgment/sentence does not become a judgment/sentence in law until it is:

(1) Read and announced to the defendant; or
(2) Has become a part of the record of the court. [US v. CFI of Manila, 24 Phil 321]

Where there is no promulgation of judgment, no right to appeal accrues.

Bar (1997)
X, the accused in a homicide case before the RTC, Dagupan City, was personally notified of the promulgation of
judgment in his case set for 10 December 1996. On said date. X was not present as he had to attend to the trial
of another criminal case against him in Tarlac, Tarlac. The trial court denied the motion of the counsel of X to
postpone the promulgation.
(a) How shall the court promulgate the judgment in the absence of the accused?
(b) Can the trial court also order the arrest of X?
SUGGESTED ANSWER:
(a) In the absence of the accused, the promulgation shall be made by recording the Judgment in the criminal
docket and a copy thereof served upon the accused or counsel. (Sec. 6. third par., Rule 120)
(b) No, the trial court cannot order the arrest of X if the judgment is one of acquittal and, in any event, his failure
to appear was with justifiable cause since he had to attend to another criminal case against him.

NOTICE FOR PROMULGATION

Clerk of Court gives notice to accused personally or through bondsman or warden and
counsel.

If the accused jumps bail or escapes from prison and was tried in absentia, notice will be served
in last known address. [Rule 120, Sec. 6]

Sin perjuicio judgment

A judgment without a statement of the facts in support of its conclusion to be later
supplemented by the final judgment. [Dizon v. Lopez (1997)]
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Merely reading the dispositive portion of the decision is not sufficient.

Judgment must state the facts and the law on which it is based.
While SC has expressed approval of the practice of some judges withholding the dispositive
portion from their opinions until the very last moment of promulgation in order to prevent
leakage, such refers to the preparation of the decision and not to promulgation.

There is no more reason to keep it a secret at the stage of promulgation.

When promulgation of judgment may be made by the clerk of court[Rule 120, Sec. 6]
The judgment may be promulgated by the clerk of court when the judge is absent or outside
the province or city.

General rule: Presence of the accused is mandatory.

Exception: Convictions for light offenses.

Conviction for light offense He may appear through counsel/representative

Promulgation in absentia To prevent subversion of judicial process and
enable enforcement of civil liability
Verdict of acquittal No appeal is necessary; judgment is final and
executory.

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 the ROC against the judgment and the court shall
order his arrest.

However, within 15 days from promulgation of judgment, he may surrender and file a motion for
leave of court to avail of these remedies. He shall state the reasons for his absence.

If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies
within 15 days from notice. [Sec. 6, Rule 120; People v. De Grano (2009)]

Promulgation when accused is confined/detained in another city

It will be done in the RTC who has jurisdiction over the place of confinement. (Bar Matter)In this
case, the court promulgating the judgment shall have authority to accept notice of appeal
and to approve the bail bond pending appeal. [Sec. 6, Rule 120]

Failure to appear at the scheduled date of promulgation

Promulgation is made by recording the judgment in the criminal docket and serving a copy at
the accused’s last known address or through counsel. [Sec. 6, Rule 120]

Promulgation date where judge no longer a judge is void.

If at the time of the promulgation, the judge penning the decision has ceased being a judge of
the court, the decision would not be an act of the court. [People v. Dimalanta] Promulgation by
a succeeding judge produces no legal effect since it cannot restore validity to a document
already void.
Bar (1998)
1. What are the requisites of a trial in absentia? [2%] 2. If an accused who was sentenced to death escapes, is
there still a legal necessity for the Supreme Court to review the decision of conviction?
SUGGESTED ANSWER:
1. The requisites of trial in absentia are: (a) the accused has already been arraigned; (b) he has been duly
notified of the trial; and (c) his failure to appear is unjustifiable.
2. Yes, there is still a legal necessity for the Supreme Court (as of 2004 the Court of Appeals has the jurisdiction to
such review) to review the decision of conviction sentencing the accused to death, because he is entitled to an
automatic review of the death sentence. (Sees. 3[e] and 10, Rule 122, Rules of Criminal Procedure; People vs.
Espargas, 260 SCRA 539.)

WHEN DOES JUDGMENT BECOME FINAL [RULE 120, SEC. 7]

(1) After the lapse of the period for perfecting an appeal;

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(2) When the sentence has been partially/totally satisfied or served;
(3) The accused has expressly waived in writing his right to appeal, or
(4) When the accused applies for probation, and thereby waives right to appeal.
(5) Judgment also becomes final when judgment is an acquittal. [People v. Sandiganbayan
(2010)]
Exception to finality of judgment of acquittal: Cases where death penalty was imposed—
automatic review; judgment does not become final after the promulgation and by the TC’s
issuance of a commitment order. [Sec, 10, Rule 122]

Note: Before the judgment becomes final, the TC has plenary power to make, either on motion
or motu proprio, such amendment or alterations as it may deem best, within the frame of law,
to promote the ends of justice.

After finality, the TC is divested of authority to amend/alter the judgment, except to correct
clerical errors.
Bar (2005)
Mariano was convicted by the RTC for raping Victoria and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano and Victoria were married. Mariano filed a motion in said
court for his release from the penitentiary on his claim that under Republic Act No. 8353, his marriage to Victoria
extinguished the criminal action against him for rape, as well as the penalty imposed on him. However, the court
denied the motion on the ground that it had lost jurisdiction over the case after its decision had become final
and executory. (7%)
a) Is the court correct? Explain.
SUGGESTED ANSWER:
No. The court can never lose jurisdiction so long as its decision has not yet been fully implemented and satisfied.
Finality of a judgment cannot operate to divest a court of its jurisdiction. The court retains an interest in seeing the
proper execution and implementation of its judgments, and to that extent, may issue such orders necessary and
appropriate for these purposes. (Echegaray v. Secretary of Justice, G.R. No. 13205, January 19, 1999)
b) What remedy/remedies should the counsel of Mariano take to secure his proper and most expeditious release
from the National Penitentiary? Explain.
SUGGESTED ANSWER:
To secure the proper and most expeditious release of Mariano from the National Penitentiary, his counsel should
file: (a) a petition for habeas corpus for the illegal confinement of Mariano (Rule 102), or (b) a motion in the court
which convicted him, to nullify the execution of his sentence or the order of his commitment on the ground that
a supervening development had occurred (Melo v. People, G.R. No. L- 3580, March 22, 1950) despite the finality
of the judgment.
Note: So, even after the finality of the judgment, it can still be nullified due to pardon (marriage)

Bar (2004)
AX was charged before the YY RTC with theft of jewelry valued at P20.000, punishable with imprisonment of up to
10 years of prision mayor under the Revised Penal Code. After trial, he was convicted of the offense charged,
notwithstanding that the material facts duly established during the trial showed that the offense committed was
estafa, punishable by imprisonment of up to eight years of prision mayor under the said Code. No appeal having
been taken therefrom, said judgment of conviction became final. Is the judgment of conviction valid? Is the said
judgment reviewable thru a special civil action for certiorari? Reason. (5%)
SUGGESTED ANSWER: Yes, the judgment of conviction for theft upon an information for theft is valid because the
court had jurisdiction to render judgment. However, the judgment was grossly and blatantly erroneous. The
variance between the evidence and the judgment of conviction is substantial since the evidence is one for
estafa while the judgment is one for theft. The elements of the two crimes are not the same. (Lauro Santos v.
People, 181 SCRA 487). One offense does not necessarily include or is included in the other. (Sec. 5 of Rule 120).
The judgment of conviction is reviewable by certiorari even if no appeal had been taken, because the judge
committed a grave abuse of discretion tantamount to lack or excess of his jurisdiction in convicting the accused
of theft and in violating due process and his right to be informed of the nature and the cause of the accusation
against him, which make the judgment void. With the mistake in charging the proper offense, the judge should
have directed the filing of the proper information and thereafter dismissed the original information. (Sec. 19 of
Rule 119).

Rule 121 New trial or Reconsideration

GROUNDS FOR NEW TRIAL [RULE 121, SEC. 2]

1. That errors of law or irregularities prejudicial to the substantial rights of the accused have
been committed during the trial;

2. 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.

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GROUNDS FOR RECONSIDERATION
Errors of law OR fact in the judgment, which requires no further proceedings. [Rule 121, Sec. 3]

REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED

EVIDENCE

REQUISITES
That the evidence: [Jose v. CA (1997)]
(a) Was discovered after the trial;
(b) Could not have been discovered and produced at the trial even with the exercise of
reasonable diligence. [US v. Pico (1982)]
(c) Is material, not merely cumulative/corroborative/impeaching; and
(e) Is of such weight that it would probably change the judgment if admitted.

EXCEPTIONS
“Interest of justice” as gauge for introduction of new evidence:
In People v. Almendras (2003), the court ruled that a motion for a new trial may be granted on
a ground not specifically provided in the rules, provided that it is sought in the interest of justice.
In that case, the relief of a new trial was granted to a client who has suffered by reason of
his/her counsel’s gross mistake and negligence.

When there is variance in 2 reports:

In People v. del Mundo (1996), the court allowed the presentation in a new trial of a police
report, not new, and which could have been discovered with due diligence, because the
evidence contained in such was at such variance with the health officer’s report at trial, that its
contents raised doubts to the guilt of the accused.

EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION [RULE 121, SEC. 6]

IN ALL CASES:
(a) The original judgment set aside or vacated;
(b) The case will stand for trial de novo;
(c) A new judgment is rendered accordingly.
(d) When the MNT is granted on the ground of:
i) errors of law or irregularities committed during trial- All proceedings and evidence
affected shall be set aside and taken anew
ii) newly discovered evidence- the evidence already adduced shall stand and the NDE
be taken and considered together with the evidence already in the record.

REMEDY AGAINST GAD IN GRANTING MNT/MFR

Certiorari or prohibition. Otherwise, the prosecution may no longer have opportunity to question
the order if accused is acquitted after a new trial is conducted (because there will be double
jeopardy). [Luciano v. Estrella (1970)]

APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES

FRESH PERIOD TO APPEAL AFTER DENIAL OF MNT/MR

Neypes Doctrine: The Court allows a fresh period of 15 days within which to file the notice f
appeal in the RTC, counted from receipt of the order dismissing a MNT or MR.

Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to
the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.
(Neypes v. CA, 2005)

Rule 122 Appeal

EFFECT OF AN APPEAL
An appeal in a criminal proceeding throws the whole case open for review and it becomes the
duty of the appellate court to correct an error as may be found in the appealed judgment,
WON it is made the subject of assignment of errors.

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WHERE TO APPEAL [RULE 122, SEC. 2]
Appeal For cases decided by
The RTC MTC/MeTC/MCTC
The Sandiganbayan RTC or MTC/MeTC/MCTC (if it is government duty-related -i.e.
filed under EO 1, 2, 4 and 14-A)
The CA RTC (if it involves questions of fact and of law)
The SC RTC
(a) If it involves questions of law only
(b) If it involves constitutionality or validity of any
treaty/law/ordinance/EO/ regulation or the jurisdiction of
the inferior court
(c) In criminal cases involving offenses for which the penalty
imposed is death or life imprisonment
(d) 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
The SC CA or Sandiganbayan

HOW APPEAL TAKEN

Note: The right to appeal is not a natural right nor a part of due process but merely a statutory
privilege and may be exercised only in the manner and in accordance with the provisions of
the law. [Estarija v. People (2009)]

WHO MAY APPEAL

General Rule: Any party may appeal from a judgment or final order [Section 1, Rule 122]
Exceptions:
(1) Party may not appeal if the accused will be placed in double jeopardy by such action
[Section 1, Rule 122]
(2) If the judgment is for conviction and the accused fails to appear without justifiable cause, he
would lose the remedy to appeal [Sec. 6,Rule 120]

When appeal to be taken [Rule 122, Sec. 6 and 9]

Within 15 days from promulgation of the judgment or from notice of the final order appealed
from.The period to appeal shall be suspended from the time a MNT or MR is filed until notice of
the order overruling the motion has been served upon the accused or his counsel.

Transmission of record to RTC

Within 5 days from perfection of the appeal, the COC
shall transmit the original record to the appropriate RTC.

Notification of parties
Upon receipt of the complete record, TSN and
evidence of the case, the RTC COC shall notify the
parties of such fact.

Submission of memoranda/briefs
Within 15 days from receipt of said notice, the parties
may submit memoranda/briefs, or may be required
by the RTC to do so.

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 Decision
After submission of such memoranda/briefs or upon the expiration
of the period to file the same, the RTC shall decide the case on the basis of the entire record
of the case and of such memoranda/briefs as may have been filed.

Bar matter: Withdrawal of appeal (Rule 122, Sec. 11)

A) Notwithstanding perfection of appeal, the RTC or MTC may allow the appellant to
withdraw his appeal BEFORE the record has been forwarded by the clerk of court to the
proper appellate court, in which case the judgement shall become final.
B) In its DISCRETION, the RTC may also allow the appellant from the judgement of a MTC to
withdraw his appeal, PROVIDED A MOTION TO THAT EFFECT IS FILED BEFORE THE
RENDITION OF THE JUDGEMENT IN THE CASE ON APPEAL, in which case the judgment of
the court of origin shall become final and the case shall be remanded to the latter court
for execution of the judgment.[Rule 123, Sec. 1]

General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that
in the RTC.
Exceptions:
(1) Where a particular provision applies only to either of said courts;
(2) Criminal cases governed by the Revised Rules on Summary Procedure.

Offenses falling under the MTC/MCTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)]

Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the
MTC/MCTC, complaint/information may be filed directly with said courts or with the City
Prosecutor’s Office.

Offenses falling under the MeTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)]

In Metro Manila and other chartered cities, criminal cases shall be commenced ONLY BY
INFORMATION; thus, the complaint may be filed only with the Office of the City Prosecutor

If the case is directly filed with the court, the case should not be dismissed. The court should just
refer it to the City Prosecutor for the filing of the corresponding information.

Cases governed by the Revised Rules on Summary Procedure ?..??

PROCEDURE IN THE CA
(a) Parties and title [Rule 124, Sec. 1]

In all criminal cases appealed to the CA:

APPELLANT – The party appealing;
APPELLEE – The party adverse to the appellant.

The title of the case shall remain as it was in the court of origin (i.e. People v. John Doe).

(b) Appointment of counsel de oficio [Rule 124, Sec. 2]

(c) Brief for appellant [Rule 124, Sec. 3]
Appellant shall file 7 copies of his brief with the clerk of court, accompanied by proof of service
of 2 copies on the appellee. It shall be filed within 30 days from receipt by the appellant (his
counsel) of the CA clerk of court’s notice that the evidence is already attached to the record.

(d) Brief for appellee [Rule 124, Sec. 4] Appellee shall file 7 copies of his brief with the clerk of
court, accompanied by proof of service of 2 copies on the appellant. It shall be filed within 30
days from receipt of the appellant’s brief.

(e) Reply to appelle’s brief [Rule 124, Sec. 4] Appellant may (i.e. optional) file a reply brief
covering matters raised in the appellee’s brief but not in the brief of the appellant.
It must be filed within 20 days from receipt of the appellee’s brief.

(f) Extension of time for filing briefs [Rule 124, Sec. 5]

General Rule: Extension of time for the filing of briefs is not allowed.
Exception: for good and sufficient cause
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It is sought through a motion for extension, which must be filed before the expiration of the time
sought to be extended.

Court may grant as many extensions as may be asked. [Gregorio v. CA (1976) ]

(g) Form of briefs [Rule 124, Sec. 6] Briefs shall be printed/encoded/ typewritten, in double
space, on legal size good quality unglazed paper, 330mm in length by 216mm in width.

Mimeographed copies are not allowed.

(h) Contents of brief

The briefs in criminal cases shall have the same contents as provided in Rule 44, Sec. 13-14. [Rule
124, Sec. 7]

(1) Appellant’s brief: [Rule 44, Sec. 13]

(a) SUBJECT INDEX
(b) ASSIGNMENT OF ERRORS
(c) STATEMENT OF THE CASE
(d) STATEMENT OF FACTS
(e) ISSUES
(f) ARGUMENTS
(g) RELIEF
(h) ATTACHMENT

(2) Appellee’s brief: [Rule 44, Sec. 14]

(a) SUBJECT INDEX
(b) STATEMENT OF FACTS; or COUNTERSTATEMENT OF FACTS
(c) ARGUMENTS

Dismissal of appeal for abandonment or failure to prosecute [Rule 124, Sec. 8]

Grounds:
(A)Appellant fails to file his brief within the prescribed time;
Exception: Where the appellant is represented by a counsel de oficio.

If failure to file brief on time is the ground, appellant must be given NOTICE to give him
opportunity to reason out why his appeal should not be dismissed.

(B)If the appellant escapes from prison/confinement, jumps bail or flees to a foreign country
during the pendency of the appeal.

Likewise, when accused flees after the case has been submitted for decision, he is deemed to
have waived his right to appeal. [People v. Ang Gioc (1941)]

Exception: Appeal will not be dismissed despite escape:

(a) In one exceptional case, the appellant took advantage of a mass jailbreak (because,
according to his counsel de oficio he was innocent and wanted to elude an unjust
punishment) but was recaptured 2 hours after, the SC said circumstances were not sufficient
to justify dismissal of the appeal. [People v. Valencia (1949)]
(b) If there was absolutely no evidence against the accused as found by the appellate court,
he should be acquitted in order to prevent an injustice by technicalities. [People v.
Buenaventura (1994)]
(c) In case of automatic review. [People v. Cornelio (1971)]

(C) CA may dismiss the appeal upon appellee’s motion or motu proprio.

PROMPT DISPOSITION OF APPEAL [Rule 124, Sec. 9]

Appeals of accused who are under detention are given precedence in their disposition over
other appeals.

The accused need not be present in court during the hearing of the appeal.
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REVERSAL / MODIFICATION OF JUDGMENT ON APPEAL
[Rule 124, Sec. 10]
General rule: No judgment shall be reversed/modified.
Exception: When the CA, after an examination of the record and of the parties’ evidence, is of
the opinion that error was committed and such error injuriously affected the appellant’s
substantial rights.

When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s
findings.
Rationale: The TC is in a better position to decide the question, having seen and heard the
witnesses themselves. [People v. Cabiling (1976)]

SCOPE OF CA’S JUDGMENT [Rule 124, Sec. 11]

The CA may:
(1) Reverse/affirm/modify the judgment;
(2) Increase/reduce the penalty imposed by the TC;
(3) Remand the case to the RTC for new trial or retrial;
(4) Dismiss the case. When the accused appeals from the sentence of the TC, he waives the
constitutional safeguard against double jeopardy and throws the whole case open to the
review of the appellate court, which is then called upon to render such judgment as law and
justice dictate, WON favorable to the accused and WON made the subject of assignment of
errors. [Ko Bu Lin v. CA (1982)]

CA’S POWER TO RECEIVE EVIDENCE [Rule 124, Sec. 12]

The CA has power to try cases and conduct hearings, receive evidence and perform any and
all acts necessary to resolve factual issues in cases:
(1) Falling within its original jurisdiction;
(2) Involving claims for damages arising from provisional remedies;
(3) Where the court grants a new trial based only on the ground of newly-discovered evidence.
CA’s trials and hearings must be continuous and completed within 3 months, unless
extended by the Chief Justice.

QUORUM IN THE CA [Sec. 11, BP 129]

(a) 3 CA Justices constitute a quorum for the sessions of a division.
(b) The unanimous vote of the 3 Justices of a division is necessary for the pronouncement of a
judgment or final resolution
(c) Decision is reached through a consultation before the writing of the opinion by a member of
the division.
(d) If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to
designate 2 additional Justices to sit temporarily with them.

They shall then form a special division of 5 members.

The concurrence of a majority of that special division is necessary for the pronouncement of a
judgment or final resolution.

Designation of the additional Justices shall be made strictly by raffle and rotation among all
other CA Justices.

CERTIFICATION OR APPEAL OF CASES TO THE SC [Rule 124, Sec. 13]

(1) If the CA finds that death penalty should be imposed:

(a) AUTOMATIC REVIEW – CA shall render judgment but refrain from making an entry of
judgment. It shall then certify the case and elevate its entire record to the SC for review.
The accused does not have to do anything.
(b) Note: Death penalty has been abolished.

(2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion
or which arose from the same occurrence that gave rise to the more severe offense for which
death is imposed, and the accused appeals:
The appeal shall be automatically included in the case certified for review in the SC
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(3) If the CA imposes reclusion perpetua, life imprisonment or a lesser penalty:
(a) It shall render and enter judgment imposing such penalty.
(b) Appeal here is not automatic.

The accused has to file a notice of appeal with the CA.

JUDGMENT TRANSMITTED AND FILED IN TC

When the CA’s entry of judgment is issued, a certified true copy of the judgment shall be
attached to the original record. These shall be remanded to the clerk of the court from which
the appeal was taken. [Rule 124, Sec. 17]

This copy of the entry serves as the formal notice to the court from which the appeal was taken
of the disposition of the case in the appellate court, so that the judgment may be executed
and/or placed or noted in the proper file.

MNT DURING THE PENDENCY OF APPEAL IN THE CA

[Rule 124, Sec. 14]
(a) Appellant may file MNT on the ground of newly discovered evidence material to his defense
any time:
(1) After the appeal from the lower court has been perfected, but
(2) Before the CA judgment convicting him becomes final.
(b) The motion shall conform to Rule 121, Sec. 4.
(c) If the CA grants a MNT, it may either: [Rule 124, Sec. 15]
(1) Conduct the hearing and receive evidence;
(2) Refer the trial to the court of origin.

MFR OF CA JUDGMENT [Rule 124, Sec. 16]

MFR may be filed within 15 days from notice of the CA judgment or final order, with copies
served on the adverse party.

General rule: No party shall be allowed a 2nd MFR of a judgment or final order. [Sec. 11, BP 129]
Exception: Where the 1st MFR resulted in a reversal or substantial modification of the original
decision or final resolution.

In this case, the party adversely affected by the reversal/modification may himself file a MFR of
the latest judgment of the court, because with respect to him, said motion is a first pleading of
that nature.

APPLICABLE CIVIL PROCEDURE RULES [Rule 124, Sec. 18]

Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and
appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not
inconsistent with the provision of this Rule.

PROCEDURE IN THE SC
(a) Uniform procedure [Rule 125, Sec. 1]

General rule: The procedure in the SC in original and in appealed cases shall be the same as in
the CA.
Exception: If the Constitution or law provides otherwise.

(b) What the SC may do on review

In a criminal case, an appeal to the SC throws open the whole case for review and it becomes
its duty to correct such errors as may be found in the judgment appealed from, WON they were
assigned as errors. [People v. Olfindo (1924)]

It may examine the judgment as to the qualification of the crime and the degree of the penalty
imposed. [Macali v. Revilla (1926)]

It may also assess and award civil indemnity. [Quemel v. CA (1946)]

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(c) Ways by which a case may reach the Supreme Court

Automatic review
It is not a matter of right on the part of the accused, but a matter of law.

When available:
(a) When the RTC judgment upon the accused imposes death penalty. [Rule 122, Sec. 10]
(b) When the RTC decision is appealed to CA and the latter is of the opinion that the penalty
imposed should be death or life imprisonment. CA judgment is imposed but no entry of
judgment is made; instead, the case is certified and the entire record is elevated to the SC
for review. [Rule 124, Sec. 13]

Ordinary appeal
When available:
(a) When the penalty imposed by the RTC is life imprisonment, decision is appealable directly to
the SC by filing a notice of appeal with the RTC. [Rule 122, Sec. 3]
(b) When an accused was charged with 2 or more offenses committed on the same occasion
or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life
imprisonment or death penalty, the appeal with respect to the others, though punished with
a lesser penalty, is to the SC. [Rule 122, Sec. 3]
(c) When the penalty of reclusion perpetua or death is imposed on some of the defendants and
a lesser penalty on the other co-defendants, on account of their varying degree of
participation in the commission of the offense or due to the presence of modifying
circumstances, in which case the decision on the non-life convicts is directly appealable to
the SC. [People v. Carino] In these cases, the SC reviews not only errors of law but also the
findings of fact by the TC.

Petition for review on certiorari

When available:
(a) When constitutionality/validity of any treaty, executive agreement, law, ordinance or
executive order or regulation is in question.
(b) When validity of law is questioned by an accused convicted under it by the TC, the SC
cannot review the evidence or pass upon any other question of law which may appear on
the record, but will only confine itself to the question of the in/validity of that law. [Trinidad v.
Sweeney (1904)]
(c) When the jurisdiction of any inferior court is in issue.
(d) When only an error or question of law is involved.

On decisions of the CA and the Sandiganbayan.

As a rule, review here is limited to errors of law.

General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of
an inferior court. For errors of judgment, ordinary appeal is available.
Exception: Cases where certiorari is granted despite existence of the remedy of appeal:
(1) Where public welfare and advancement of public policy so dictate.
(2) Where the broader interests of justice so require.
(3) Where the orders complained of were found to be completely null and void.
(4) Where appeal was not considered as the appropriate remedy.

(d) Failure to specify appellate court

Failure of appellant to specify in his notice of appeal the court to which the appeal is being
made is not fatal. [RA 296]

(e) Erroneous choice / mode of appeal

In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary
appeal filed by appellant shall be dismissed because the proper remedy is petition for review
on certiorari (only questions of law were involved) was rejected.
The SC said that in cases similarly situated, and as long as the steps formally required for the
perfection of an appeal were taken in due time, appeal may be given due course, without
prejudice to requiring the appellant to file the necessary petition for review on certiorari which is
also a form of appeal.
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(f) Review of CA decisions
The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil
cases. [Rule 125, Sec. 2]
General rule: The SC’s appellate jurisdiction in cases brought to it from the CA is limited to
reviewing and revising the errors of law incurred by the latter.
(a) The CA’s findings of fact are final.
(b) If an appeal in the SC involves questions of facts, the SC has no jurisdiction and should
dismiss appeal. [Guico v. Mayuga (1963)]

Exception: [Vargas v. CA; Napolis v. CA (1972)]

(a) When the conclusion is a finding founded entirely on speculations/surmises/conjectures;
(b) When the inference made is manifestly mistaken/absurd/impossible;
(c) When there is GAD;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When the CA, in making its findings, went beyond the issues of the case and the same
are contrary to the admissions of both appellant and appellee.

(g) Decisions if opinion is equally divided [Rule 125, Sec. 3]

When the SC en banc is equally divided in opinion or the necessary majority cannot be had on
WON to acquit the appellant, the case shall again be deliberated upon.

If no decision is reached after re-deliberation, the lower court’s judgment of conviction shall be
reversed and the accused is acquitted.

If case is decided by a division of the SC whose members are equally divided, the case shall be
heard and decided by the SC en banc.

(h) Constitutional provisions on SC composition [Art. 8, Sec. 4, Consti]

(a) SC Composition: 1 Chief Justice + 14 Associate Justices.
(b) SC may sit en banc or (in its discretion) in divisions of 3, 5 or 7 members.
(c) No doctrine or principle of law laid down by the SC in a decision rendered en banc or in
division may be modified/reversed.

EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED [RULE 122, SEC. 11]

General rule: An appeal taken by one or more of several accused shall not affect those who
did not appeal.
(a) As to the appealing party, the execution of judgment appealed from is stayed upon the
perfection of the appeal.
(b) As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him
becomes final and the appellate court has no power to interfere with it. [Salvatierra v. CA
(1996)]

Exception: Insofar as the judgment of the appellate court is favorable and applicable to those
who did not appeal or who withdrew his appeal. [People v. Gandia (2008)]

The appeal of the offended party from the civil aspect shall not affect the criminal aspect of
the judgment or order appealed from.

GROUNDS FOR DISMISSAL OF APPEAL

WHEN APPEAL BY THE PEOPLE WILL NOT LIE
The People/State cannot appeal when it will put the accused in double jeopardy. The
constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in
a new and independent cause but extends also to appeal in the same case by the prosecution
after jeopardy had attached. [Republic v. CA]

The prosecution cannot appeal from a judgment of acquittal

Rationale: A verdict of that nature is immediately final and to try on the merits, even in an
appellate court, places the accused in double jeopardy. [Central Bank v. CA (1989)]

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Dismissal of case upon filing of demurrer by the accused was held to be final even though
based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution
would constitute double jeopardy. [US v. Kilayko (1916)]

Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground
of lack of it, the order of dismissal is unappealable. [People v. Duran (1960)]

An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial
court or to include in a judgment a penalty erroneously omitted. [People v. Paet (1956)]

The preclusion against appeal by the State from judgments or final orders having the effect of
acquittal, applies even though accused did not raise question of jeopardy. [People v.
Ferrer(1956)]

RULE 126 Search and Seizure

DEFINITION
It 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 in
the warrant and bring it before the court. (Rule 126, Sec. 1)

If it is without the judge’s signature: it is fatally defective.

NATURE OF A SEARCH WARRANT

A search warrant (SW) is in the nature of a criminal process akin to a writ of discovery,
employed by the state to procure relevant evidence of a crime. [Malaloan v. CA (1994)]

They are not available to individuals in the course of civil proceedings.

It is interlocutory in character -–-it leaves something more to be done, which is the

determination of the guilt of the accused.

BASIS: CONSTITUTIONAL SAFEGUARD AGAINST UNREASONABLE SEARCH AND SEIZURES

No search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after the examination under oath/affirmation of the
complaint and the witness he may produce, and particularly describing the place to be
searched, and the things/persons to be seized. (Art. III, Sec. 2, 1987 Const.)

Exclusionary rule: Any evidence obtained in violation of this or the preceding section (Art. III,
Sec. 2) shall be INADMISSIBLE for any purpose IN ANY PROCEEDING. (Art. III, Sec. 3, Par. 2, 1987
Const.)

Doctrine of attenuation: Despite the illegality in obtaining evidence, such evidence may be
admissible if the connection between the evidence and the illegal method is sufficiently remote
or attenuated so as to dissipitate the taint [Wong Sun v. US (1963)]

This constitutional guarantee is NOT a blanket prohibition against ALL searches and seizures. It
operates only against “unreasonable” searches and seizures.

CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC OFFICERS’ ACTS, NOT PRIVATE PERSONS

People v. Bongcarawan (2002): Search and seizure clauses are restraints upon the government
and its agents, not upon private individuals.

However, if the private person is acting upon orders of government officials, the principle of
agency applies, because in fact such private person is acting in the interest of government,
and is therefore subject to the prohibition against unreasonable searches and seizures.

DISTINGUISH FROM WARRANT OF ARREST

Search Warrant Warrant of Arrest

Nature

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Order in writing in the name of the RP signed Order directing a police officer to take the
by the judge and directed to the peace person stated therein into custody that he may
officer to search personal property described be bound to answer for the commission of the
therein and to bring it to court. offense.
Determination of Probable Cause
The judge must personally examine the The judge does not have to personally
complainant and witnesses in the form of examine the complainant and his witnesses.
searching questions and answers. (Rule 126, Instead, he may opt to personally evaluate
Sec.5)The examination must be under oath or the report and supporting documents
affirmation of the complainant and his submitted by the prosecutor. Examination must
witnesses. be under oath.
Form of Writ
It must particularly describe the place to be It must particularly describe the person to be
searched and the things to be seized. arrested.
When Executed
Generally served in the day time, unless there May be made at any time of the day or night.
be a direction in the warrant that it may be (Rule 113, Sec. 2)
served at any time of the day or night.
Period of Validity
Valid for ten (10) days (Rule 126, Sec. 9). Does not expire (No terminal life).

APPLICATION FOR SEARCH WARRANT

Where filed (Rule 126, Sec. 2)
Any court within whose territorial jurisdiction the crime was committed.

For compelling reasons stated in the application:

(a) If the place of the commission of the crime is known, any court within the judicial region
where the crime was committed.
(b) 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.

Exception: (Malaloan v. CA [1994] subject to Rule 126, Sec. 1)

If a case has not yet been filed, it may be filed in a court with a territorial jurisdiction other than
that where the illegal articles sought to be seized are located.

This is aside from the consideration that a criminal action may be filed in different venues under
the rules for continuing crimes, or where different trial courts have concurrent original jurisdiction
over the same criminal offense.

The ruling may be applicable:

(a) When the crime is found to have been committed in a particular place WITHIN the
judicial region.
(b) Where a particular court, by reason of its territorial area, has jurisdiction.
(c) And where prosecutor, who filed the complaint or information in said court, has territorial
jurisdiction different from the court within the same judicial region which actually issued
the warrant.

A.M. No. 03-8-02-SC

The Executive Judges and, whenever they are on official leave of absence or are not physically
present in the station, the Vice-Executive Judges of Manila and Quezon City RTCs of Manila City
shall have authority to act on applications for search warrants involving:
(a) heinous crimes;
(b) illegal gambling;
(c) illegal possession of firearms and ammunitions
(d) violations of the Comprehensive Dangerous Drugs Act of 2000;
(e) the Intellectual Property Code, the
(f) the Anti-Money Laundering Act of 2001,
(g) the Tariff and Customs Code; and,
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(h) other relevant laws that may hereafter be enacted by Congress, and included herein by the
Supreme Court.

Substance of application
Requisites for issuing a search warrant (PJED)
(a) Upon probable cause in connection with one specific offense;
(b) To be determined personally by the judge;
(c) After examination under oath or affirmation of the complainant and the witness he may
produce;
(d) Particularly describing the place to be searched and the things to be seized which may be
anywhere in the Philippines.

ISSUANCE AND FORM

SW must be in writing and contain:
(a) Name of person against whom it is directed;
(b) Offense for which it was issued;
(c) The place to be searched and
(d) The description of the specific things to be seized;
(e) A directive to law enforcement officers to search and seize;
(f) And for them to bring in court the things seized;
(g) Signature of the judge issuing it.

VALIDITY OF SEARCH WARRANT

Period of validity: 10 days from its date. Thereafter, it shall be void.(Rule 126, Sec. 10)

Lifetime of SW ends when a return has already been made. [Mustang Lumber v. CA (1996)]

SERVICE OF SEARCH WARRANT

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. (Rule 126, Sec. 7)

Knock and announce principle

Generally, officers executing a search must do the following acts:

(a) Announce their presence;

(b) Identify themselves to the accused and to the persons who rightfully have possession of
the premises to be searched;
(c) Show to them the search warrant; and
(d) Explain the warrant in a language or dialect known and understood by them.

When unannounced intrusion is permissible

(a) Person in the premises refuses to open it upon demand;
(b) Person in the premises already knew of the identity and authority of the officers;
(c) When the officers have an honest belief that there is an imminent danger to life and limb;
(d) When those in the premises, aware of the presence of someone outside, are then engaged
in activities which justifies the officers to believe that an escape or the destruction of
evidence is imminent.

Search of house, room, or premise, 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. (Rule 126, Sec. 8)

Time of making search

Day time, unless the affidavit asserts that the property is on the person or in the place ordered
to be searched, in which case a direction may be inserted that it be served at any time of the
day or night. (Rule 126, Sec. 9)

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Where a search is to be made during the night time, the authority for executing the same at
that time should appear in the directive on the face of the SW. [Asian Surety, supra]

POST-SERVICE
Receipt of property seized
How receipt is given (Rule 126, Sec. 1)
If lawful occupant was present The officer seizing the property under the SW
must give a detailed receipt for the same to
the lawful occupant of the premises in whose
presence the search and seizure were made.
If he was not present The officer seizing the property under the SW
must, in the presence of at least 2 witnesses of
sufficient age and discretion residing in the
same locality, leave a receipt in the place in
which he found the seized property.

Delivery of property and inventory thereof to court (Rule 126, Sec. 12)
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.

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 Sec. 11 of Rule 126 has been
complied with and shall require that the property seized be delivered to him. The judge shall see
to it that delivery has been complied with.

The return on the search warrant shall be filed and kept by the custodian of the log book on
search warrants who shall enter therein the date of the return, the result, and other actions of
the judge.

Goods seized remain under the court’s custody and control until the institution of the
appropriate criminal action with the proper court. [Tenorio v. CA (2003)]

Bar matter: PEOPLE VS NANO (1992)

Who is the proper party to question the order of the trial court in the CA or SC?
The general rule is that the proper party to file a petition in the CA or SC to assail any adverse
order of the RTC in the search warrant proceedings is the People of the Phil., through the OSG.
HOWEVER if there appears to be grave abuse of discretion, grave error or lack of due process,
the petition filed by the PRIVATE complainants will be entertained as if it were filed by the
Solicitor General.

PEOPLE VS JUDGE CASTILLO (2016)

May the MTC issue a search warrant for an offense beyond its jurisdiction?
Yes. Neither the Constitution and the Rules say that the court issuing a search warrant must also
have jurisdiction over the offense.
Under Sec. 2, Article III of the Constitution, the requisites for the issuance of a search warrant
are: (PJED). Also, under Section 2, Rule 126 of the Rules of Court, provides:
An application for search warrant shall be filed with the following:
a) Any court within whose jurisdiction a 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.

Hence, since the crime was committed within the territorial jurisdiction of MTC Cagayan,
issuance of by the said court of the search warrant is proper. A search warrant is merely

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 a process, generally issued by the court in the exercise of its ancillary jurisdiction, and not
a criminal action to be entertained by a court pursuant to its original jurisdiction.

PROBABLE CAUSE
Probable cause: Such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and that objects sought in
connection with the offense are in the place sought to be searched.

This probable cause must be shown to be within the personal knowledge of the complainant or
the witnesses he may produce and not based on mere hearsay.

A probable cause to arrest does not necessarily involve a probable cause to search and vice-
versa.

PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST AND WARRANTLESS SEARCH

This implies probability of guilt and requires more than bare suspicion but less than evidence
which would justify conviction. It is not determined by a fixed formula but is resolved according
to the facts of each case.

PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESSES

Aside from the requirements mandated by Rule 126, Sec. 4, the rule requires the judge to
comply with a specific procedure in the conduct of the examination of the complainant and
the witnesses he may produce. (Rule 126, Sec. 5):
(a) The examination must be PERSONALLY conducted by the judge;
(b) The examination must be in the form of searching questions and answers;
(c) The complainant and the witnesses shall be examined on those facts personally known to
them;
(d) The statements must be in writing and under oath; and
(e) The sworn statements of the complainant and the witnesses, together with the affidavits
submitted, shall be attached to the record.

EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE JUDGE; DETERMINED BY JUDGE HIMSELF

Searching questions and answers
In search cases, the application must be supported by substantial evidence: that the items
sought are in fact seizable by virtue of being connected with criminal activity and the items will
be found in the place to be searched. [People v. Tuan (2010)]

Although there is no hard-and-fast rule governing how a judge should conduct his investigation,
it is axiomatic that the examination must be probing and exhaustive, not merely routinary,
general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of
the affidavit but must make his own inquiry on the intent and justification of the
application.[Yao v. People (2007)]

Judge must examine under oath or affirmation the complainant and the witness he may
produce

Examination under oath

Oath: Includes any form of attestation by which a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
Mere affidavits of the complainant or his witnesses are not sufficient. The examining judge has to
take depositions in writing of the complaint or his witnesses, and attach the same to the record.

PARTICULARITY OF PLACE TO BE SEARCHED

Description of place to be searched is sufficient if the officer with the SW can, with reasonable
efforts, ascertain and identify the place intended. [People v. Veloso (1925)]

PARTICULARITY OF THINGS TO BE SEIZED

Personal property only. SW does not issue for seizure of immovable properties.
Ownership of the property seized is immaterial. It is sufficient that the person against whom SW is
directed has control/possession of the property. [Yao v. People (2007)]

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Things to be seized must be described particularly. General search warrants are not allowed.
Otherwise, the search and seizure of the items in the implementation of such SW is illegal and
the items seized are inadmissible in evidence. Art. III, Sec. 2 of the 1987 Const.)
(a) SWs authorizing the seizure of books of accounts and records “showing all the business
transactions” of certain persons, regardless of whether the transactions were legal or illegal,
are general warrants prohibited by law. [Stonehill v. Diokno (1967)]

(b) Likewise, a description of things to be seized as “subversive documents, propaganda

materials, FAs, printing paraphernalia and all other subversive materials” hardly provided a
definite guideline to the executing officers. [Dizon v. Hon. Castro (1985)]

(c) And where the language used is too all-embracing as to include all the paraphernalia of
petitioner in the operation of its business, the SW is constitutionally objectionable.

PERSONAL PROPERTY TO BE SEIZED

WHAT MAY BE SEIZED (RULE 126, SEC. 3)
(a) Personal property subject of the offense.
(b) Personal property stolen/embezzled and other proceeds/fruits of the offense.
(c) Personal property used or intended to be used as the means of committing an offense.

The rule does not require that the property to be seized should be owned by the person against
whom the search warrant is directed. It is sufficient that the person against whom the warrant is
directed has control of possession of the property sought to be seized.

RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC

The appropriate court may, at any time, either motu proprio or on application of any person
who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue
after due hearing and notice to the parties. (Sec. 4)

In a search incidental to an arrest even WITHOUT a warrant, the person arrested may be
searched for (Rule 126, Sec. 13)
(1) Dangerous weapons.
(2) Anything which may have been used or constitute proof in the commission of the offense.

EXCEPTIONS TO SEARCH WARRANT REQUIREMENT

SEARCH INCIDENTAL TO LAWFUL ARREST
Warrantless searches as an incident of lawful arrest
A person lawfully arrested may be searched for (1) dangerous weapons or (2) anything which
may have been used or (3) constitute proof in the commission of an offense without a search
warrant. (Rule 126, Sec. 13)

The arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an arrest can precede the arrest as if the police
have probable cause to make the arrest at the outset of the search. [Riano (2011)]

The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a
result, the things seized are inadmissible as evidence. [People v. Aruta (1998)]

The search is confined to his person, but as an incident of an arrest, the place or premises where
the arrest was made can also be searched without a search warrant. The extent and
reasonableness of the search must be decided on its own facts and circumstances. [Nolasco v.
Paño (1985);

Where a search is first undertaken, and an arrest was effected based on evidence produced
by such search, both search and arrest are illegal. [Lui v. Matillano (2004)]

CONSENTED SEARCH
Consented warrantless search
Jurisprudence requires that in case of consented searches or waiver of the constitutional
guarantee against obtrusive searches, it must first appear that
(1) the right exists;
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(2) the person involved had knowledge, either actual or constructive, of the existence of such
right; and
(3) the said person had an actual intention to relinquish the right. [People v. Nuevas (2007)]

Consent to a search is not to be lightly inferred, but must be shown by clear and convincing
evidence. It is the State which has the burden of proving, by clear and positive testimony, that
the necessary consent was obtained and that it was freely and voluntarily given. [Valdez v.
People (2007)]

A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is

merely a demonstration of regard for the supremacy of the law. [People v. Nuevas (2007)]

When is consented search reasonable: Only if kept within the bounds of the actual consent.

SEARCH OF MOVING VEHICLE

Rationale: Peace officers may lawfully conduct searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it
can be quickly moved out of the locality or jurisdiction in which the warrant may be sought.
[People v. Tuazon (2007)]

However, these searches would be limited to visual inspection and the vehicles or their
occupants cannot be subjected to physical or body searches, except where there is probable
cause to believe that the occupant is a law offender or the contents of the vehicles are
instruments or proceeds of some criminal offense.

The search and seizure without warrant of vessel and aircrafts for violation of customs laws has
been a traditional exception to the requirement of SW. [Roldan v. Hon. Arca (1975)]

Nonetheless, in all cases falling under this category, there must be a showing of a PC of a
violation of the law. [Caroll v. US (1924)]

CHECK POINTS; BODY CHECKS IN AIRPORT

Searches conducted in checkpoints [People v. Vinecario (2004)]
They are valid as long as they are warranted by the exigencies of public order and conducted
in a way least intrusive to motorists.
The vehicle is neither searched nor its occupants subjected to a body search (i.e. inspection of
the vehicle is limited to a visual search).

Routine inspections are not regarded as violative of an individual’s right against unreasonable
search:
(a) Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the
public fair grounds;
(b) Officer simply looks into a vehicle;
(c) Officer flashes a light therein without opening car’s doors;
(d) Occupants not subjected to a physical search;
(e) Inspection is limited to usual search or inspection; or
(f) Routine check is conducted in a fixed area [People v. CA (2002)]

PLAIN VIEW SITUATION

Requisites (PIA): [People v. Valdez (1999), People v. Salanguit (2001)]
(1) A prior valid intrusion i.e., based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(2) Evidence was inadvertently discovered by the police who have a right to be where they
are;
(3) Evidence must be immediately apparently illegal (i.e., drug paraphernalia);
(4) Plain view justified mere seizure of evidence without further search.

The doctrine is usually applied where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object.

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Even if an object is in plain view, before it can be seized without a SW, its incriminating nature
must first be apparent.

Where police officers are on the premises pursuant to a valid consent to a search, an item
falling into their plain view may properly be seized even if the item is not connected with their
purpose in entering.

STOP AND FRISK SITUATION

A limited protective search of outer clothing for weapons. [Malacat v. CA (1997)]

Where in the course of investigating this behavior he identifies himself as a policeman and
makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to
dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search of outer clothing of such persons in
an attempt to discover weapons which might be used to assault him. [Terry v. Ohio (1968)]

Under this theory, PC is not required to conduct a “stop and frisk” BUT, nevertheless, mere
suspicion/hunch will not validate a “stop and frisk.”

Test: Genuine reason -Reasonable belief based on genuine reason and in the light of the
officer’s experience and the surrounding circumstances, that a crime has either taken place or
is about to take place and the person to be stopped is armed and dangerous.

CUSTOMS SEARCH
For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to
effect searches and seizure. [General Travel Services v. David (1966)]

The Tariff Code authorizes customs officers to:

(a) Enter, pass through or search any land, enclosure, warehouse;
(b) Inspect/search/examine any vessel/aircraft and any trunk/package/box/envelope or
any person on board, or stop and examine any vehicle/beast/person suspected of
holding/conveying any dutiable/prohibited article introduced into the Philippines
contrary to law.

General rule: The Tariff and Customs Code does not require a warrant for such searches.
Exception: In the search of a dwelling house, SW is required.

OTHER EXCEPTIONS
Exigent and Emergency Circumstances
Example: There was a prevailing general chaos and disorder because of an ongoing coup, and
the raid of the office/building was precipitated by an intelligence report that said office was
being used as HQ by the RAM. Also, the surveillance team before the raid was fired upon by the
people inside. The raiding team had no opportunity to apply for warrant as the court then was
closed. [People v. de Gracia (1994)]

Buy-bust Operation: No need for SW (or warrant of arrest) because the accused is caught in
flagrante delicto.

Entrapment: Employment of such ways and means for the purpose of trapping or capturing a
lawbreaker

Private Searches and “State Expansion of Private Search”

The evidence was obtained by a private person acting in a private capacity without state
participation and intervention. It was company SOP.

Constitutional rights cannot be invoked when there is no government interference. [People v.

Marti (1999)]

REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE

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WHO MAY AVAIL OF REMEDIES
Only the party whose rights have been impaired thereby; the objection to an unlawful search
and seizure is purely personal and cannot be availed of by third parties. [Stonehill v. Diokno
(1967); Santos v. Pryce Gases, Inc. (2007)]

REMEDIES
Employ any means to prevent the search.
Without a SW, the officer cannot insist on entering a citizen’s premises. If he does so, he
becomes an ordinary intruder.

The person to be searched may resist the search and employ any means necessary to prevent
it, without incurring any criminal liability. [People v. Chan Fook (1921)]

File criminal action against officer.

A public officer/employee who procures a SW without just cause is criminally liable under Art.
129, RPC (Search warrants maliciously obtained and abuse in the service of those legally
obtained).

File a Motion to Quash the illegal SW.

This remedy is employed if search is not yet conducted.
General rule: The motion must be filed before the sala of the judge who issued it. Only the court
that issued the SW may order revocation of SW or release of things seized. [Pagkalinawan v.
Gomez (1967)]
(Bar Matter)Exception: Where the SW is issued by one court and the criminal action based on
the results of the search is afterwards filed in another court, the motion may be filed in either
court. [People v. CA (1999)]

File a motion to return seized things.

This is the remedy used if the search was already conducted and goods were seized as a
consequence thereof.
Where the motion will be filed follows the same rules as 2(c) above.

Motion to quash a search warrant or to suppress evidence. (2005, 2007 Bar)

A motion to suppress as evidence the objects illegally taken (exclusionary rule) – any evidence
obtained through unreasonable searches and seizures shall be inadmissible for any purpose in
any proceeding.

Rule 126, Sec. 14 Where to file

If criminal action has been filed
If no criminal action has been instituted
If no criminal action is filed and motion is first
filed with the court that issued the SW, but it
failed to resolve the motion and a criminal
case is subsequently filed in another court
Court where the action has been instituted.
Court that issued SW.
Court where the subsequent criminal action
has been instituted.

Grounds for a Motion to Quash [Bache & Co. v. Ruiz (1971)]

(1) No personal examination by the judge.
(2) More than one specific offense.
(3) No particular description.

Who may file

(1) Person injured.
(2) Person searched.
(3) Owner of the property.

An accused may file a Motion to Suppress Evidence if he is not among the persons who can file
a Motion to Quash.

Effect of failure to quash warrant

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(1) Where no MTQ the SW was filed in or resolved by the issuing court, the interested party may
move in the court where the criminal case is pending for the suppression of the personal
property seized IF the same is offered therein as evidence (REGALADO).

(2) The MTQ a SW and Motion to Suppress Evidence are alternative, not cumulative remedies.

Effects of illegal search

(1) Illegally seized evidence may not be admitted in evidence in any proceeding. (Art. III, Sec.
2, 1987 Const.)

(2) DISPOSITION OF ILLEGALLY SEIZED PROPERTY

General rule: Goods seized by virtue of an illegal warrant must be returned. [Castro v. Pabalan
(1976)]
Exception: If possession of the things seized is prohibited by law, they should not be returned.

However, where the accused obtained goods from another through payment of bouncing
checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from
the purchaser with the use of a SW although the criminal case for estafa against the accused
was still pending, the goods should be returned to the buyer. The buyer is entitled to possession
of goods until restitution is ordered by the court in the criminal case. [Yu v. Honrado (1980)]

Waiver of immunity against unreasonable searches and seizure. [Pasion v. Locsin (1938)]
The constitutional immunity against unreasonable searches and seizure is a personal right that
may be waived expressly/impliedly ONLY by the person whose right is being invaded or one
who is expressly authorized to do so in his behalf.
Requisites of a valid waiver
(1) It must appear that the right exists;
(2) That the person involved had knowledge, (actual or constructive) of the existence of such
right;
(3) That the person had an actual intention to relinquish the right.
Bar (2005)
Police operatives of the Western Police District, Philippine National Police, applied for a search warrant in the RTC
for the search of the house of Juan Santos and the seizure of an undetermined amount of shabu. The team
arrived at the house of Santos but failed to find him there. Instead, the team found Roberto Co. The team
conducted a search in the house of Santos in the presence of Roberto Co and barangay officials and found ten
(10) grams of shabu. Roberto Co was charged in court with illegal possession of ten grams of shabu. Before his
arraignment, Roberto Co filed a motion to quash the warrant on the following grounds (a) it was not the
accused named in the search warrant; and (b) the warrant does not describe the article to be seized with
sufficient particularity. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER: The motion to quash should be denied. The name of the person in the search warrant is not
important. It is not even necessary that a particular person be implicated (Mantaring v. Roman, A.M. No. RTJ-93-
904, February 28, 1996), so long as the search is conducted in the place where the search warrant will be served.
Moreover, describing the shabu in an undetermined amount is sufficiently particular. (People v. Tee, G.R. Nos.
140546-47, January 20, 2003)

Bar (2012)
A PDEA asset/informant tipped the PDEA Director Shabunot that a shabu laboratory was operating in a house at
Sta. Cruz, Laguna, rented by two (2) Chinese nationals, Ho Pia and Sio Pao. PDEA Director Shabunot wants to
apply for a search warrant, but he is worried that if he applies for a search warrant in any Laguna court, their
plan might leak out.
(a) Where can he file an application for search warrant? (2%)
SUGGESTED ANSWER: PDEA Director Shabunot may file an application for search warrant in any court within the
judicial region where the crime was committed. (Rule 126, Sec.2[b]).
ALTERNATIVE ANSWER: PDEA Director Shabunot may file an application for search warrant before the Executive
Judge and Vice Executive Judges of the Regional Trial Courts of Manila or Quezon Cities. (A.M. No. 99-10-09-SC,
January 25, 2000).
(b) What documents should he prepare in his application for search warrant? (2%)
SUGGESTED ANSWER: He should prepare a petition for issuance of a search warrant and attach therein sworn
statements and affidavits.
(c) Describe the procedure that should be taken by the judge on the application. (2%)
SUGGESTED ANSWER: The judge must, before issuing the warrant, examine personally 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. (Rule 126, Sec.5, Rules of Court). 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 the Rules. (Rule 126, Sec.6, Rules of Court).

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Suppose the judge issues the search warrant worded in this way:
PEOPLE OF THE PHILIPPINES Plaintiff
-versus-
Criminal Case No. 007 for Violation of R.A. 9165
Ho Pia and Sio Pao, Accused.
x- - - - - - - - - - - - - - - - - - - - - -x TO ANY PEACE OFFICER

Greetings: It appearing to the satisfaction of the undersigned after examining under oath PDEA Director
shabunot that there is probable cause to believe that violations of Section 18 and 16 of R.A. 9165 have been
committed and that there are good and sufficient reasons to believe that Ho Pia and Sio Pao have in their
possession or control, in a two (2) door apartment with an iron gate located at Jupiter St., Sta. Cruz, Laguna,
undetermined amount of "shabu" and drug manufacturing implements and paraphernalia which should be
seized and brought to the undersigned, You are hereby commanded to make an immediate search, at any time
in the day or night, of the premises above described and forthwith seize and take possession of the
abovementioned personal property, and bring said property to the undersigned to be dealt with as the law
directs. Witness my hand this 1st day of March, 2012. (signed) Judge XYZ

(d) Cite/enumerate the defects, if any, of the search warrant. (3%)

SUGGESTED ANSWER:
(1) The search warrant failed to particularly describe the place to be searched and the things to be seized (Rule
126, Sec.4, Rules of Court).
(2) The search warrant commanded the immediate search, at any time in the day or night. The general rule is
that a search warrant must be served in the day time (Rule 126, Sec.8, Revised Rules on Criminal Procedure), or
that portion of the twenty-four hours in which a man‟s person and countenance are distinguishable (17 C.J.
1134). By way of exception, a search warrant may be made at night when it is positively asserted in the affidavit
that the property is on the person or in the place ordered to be searched (Alvares vs. CFI of Tayabas, 64 Phil. 33).
There is no showing that the exception applies.

(e) Suppose the search warrant was served on March 15, 2012 and the search yielded the described
contraband and a case was filed against the accused in RTC, Sta. Cruz, Laguna and you are the lawyer of Sio
Pao and Ho Pia, what will you do? (3%)
SUGGESTED ANSWER:
If I were the lawyer of Sio Pao and Ho Pia, I would file a Motion to Quash the search warrant for having been
served beyond its period of validity. (Rule 126, Sec. 14, Rules of Court). A search warrant shall be valid only for ten
(10) days from its date. Thereafter, it shall be void. (Rule 126, Sec.10, Revised Rules of Court).

(f) Suppose an unlicensed armalite was found in plain view by the searchers and the warrant was ordered
quashed, should the court order the return of the same to the Chinese nationals? Explain your answer. (3%)
SUGGESTED ANSWER: No, the court should not order the return of the unlicensed armalite because it is
contraband or illegal per se. (PDEA vs. Brodett, G.R. No. 196390, September 28, 2011). The possession of an
unlicensed armalite found in plain view is mala prohibita. The same should be kept in custodial legis.

Bar (2008)
The search warrant authorized the seizure of “undetermined quantity of shabu.” During the service of the search
warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The accused
moved to suppress the marijuana leaves as evidence for the violation of Section 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State justified the seizure of
the marijuana leaves under the “plain view” doctrine. There was no indication of whether the marijuana leaves
were discovered and seized before or after the seizure of the shabu. If you are the judge, how would you rule on
the motion to suppress?
SUGGESTED ANSWER: The “plain view” doctrine cannot be invoked because the marijuana leaves were wrapped
in newsprint and there was no evidence as to whether the marijuana leaves were discovered and seized before
or after the seizure of the shabu. If they were discovered after the seizure of the shabu, then the marijuana could
not have been seized in plain view (CF. Peo vs. Mua, G.R. No. 96177, 27 January 1997). In any case, the
marijuana should be confiscated as a prohibited article.

Bar (2010)
As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney" approaching him.
Sensing that the occupants of the vehicle were up to no good, he darted into a corner and ran. The occupants
of the vehicle − elements from the Western Police District − gave chase and apprehended him. The police
apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked in his waist and a Swiss knife
in his secret pocket, and detained him thereafter. Is the arrest and body-search legal? (3%)
SUGGESTED ANSWER: The arrest and body-search was legal. Cicero appears to be alone walking down the dark
alley” and at midnight. There appears probable cause for the policemen to check him, especially when he
darted into a corner (presumably also dark) and run under such circumstance.
Although the arrest came after the body-search where Cicero was found with shabu and a Swiss knife, the body-
search is legal under the “Terry search” rule or the “stop and frisk” rule. And because the mere possession, with
animus, of dangerous drug (the shabu) is a violation of the law (R.A. 9165), the suspect is in a continuing state of
committing a crime while he is illegally possessing the dangerous drug, thus making the arrest tantamount to an
arrest in flagrante: so the arrest is legal and correspondingly, the search and seizure of the shabu and the
concealed knife may be regarded as incident to a lawful arrest.

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Rule 127 Provisional Remedies
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. [Rule 127, Sec. 1]

Where the civil action has actually been instituted, or proceeded independently of the criminal
action, these provisional remedies cannot be availed of in the criminal action but may be
applied for in the separate civil action. (Regalado)

If the civil action is suspended on account of filing of the criminal action

The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary
writs that do not go into the merits of the case. [Ramcar Inc v. de Leon]

Not available when:

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

KINDS OF PROVISIONAL REMEDIES

Reference to provisional remedies in Rule 127 is made in general terms, hence preliminary
injunction, preliminary attachment, receivership, replevin or support pendent lite may be
availed of. (Riano)

The accused may present evidence to prove his defense and damages, if any, arising from the
issuance of a provisional remedy in the case. [Rule 119, Sec. 11(b)]

PRELIMINARY ATTACHMENT
When proper [Rule 127, Sec. 2]
When the civil action is properly instituted in the criminal action, the offended party may have
the property of the accused attached as security for the satisfaction of any judgment that may
be recovered from the accused in the following cases:

(1) When the accused is about to abscond from the Philippines

(2) When 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/corporate
officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or
by any other person in a fiduciary capacity, or for a willful violation of duty
(3) When the accused has concealed, removed or disposed of his property, or is about to do so
(4) When the accused resides outside the Philippines

Issuance and implementation of the writ [Gonzalez v. State Properties (2001)]

When
Issuance of writ May be done before acquisition of jurisdiction
over the accused; may be ex-parte
Enforcement of writ Only after acquisition of jurisdiction over the
person of the defendant

No notice to the adverse party, or hearing on the application is required before a writ of
preliminary attachment may issue as a hearing would defeat the purpose of the provisional
remedy. The time which such hearing would take could be enough to enable the defendant to
abscond or dispose of his property before a writ of attachment may issue [Mindanao Savings
etc. v. CA, 172 SCRA 480]

BAR EXAM:
Bar (2003)
In complex crimes, how is the jurisdiction of a court determined? 4%
SUGGESTED ANSWER:
In a complex crime, jurisdiction over the whole complex crime must be lodged with the trial court having jurisdiction
to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime.
(Cuyos v. Garcia, 160 SCRA 302 [1988]).

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Bar (2000)
Your friend YY, an orphan, 16 years old, seeks your legal advice. She tells you that ZZ, her uncle, subjected her to acts
of lasciviousness; that when she told her grandparents, they told her to just keep quiet and not to file charges against
ZZ, their son. Feeling very much aggrieved, she asks you how her uncle ZZ can be made to answer for his crime. a)
What would your advice be? Explain. (3%) b) Suppose the crime committed against YY by her uncle ZZ is rape,
witnessed by your mutual friend XX. But this time, YY was prevailed upon by her grandparents not to file charges. XX
asks you if she can initiate the complaint against ZZ. Would your answer be the same? Explain. (2%).
SUGGESTED ANSWER:
(a) I would advise the minor, an orphan of 16 years of age, to file the complaint herself independently of her
grandparents, because she is not incompetent or incapable to doing so upon grounds other than her minority. (Sec.
5, Rule 110, Rules of Criminal Procedure.)
(b) Since rape is now classified as a Crime Against Persons under the Anti-Rape Law of 1997 (RA 8353), I would advise
XX to initiate the complaint against ZZ.

Bar (2009) TRUE or FALSE

The accused in a criminal case has the right to avail of the various modes of discovery.
SUGGESTED ANSWER: TRUE. The accused has the right to move for the production or inspection of material evidence
in the possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the
prosecution in its possession after obtaining permission from the court (Rule 116, Sec. 10; Webb vs. De Leon, 247 SCRA
652 [1995]).
ALTERNATIVE ANSWER: FALSE. The accused in criminal case only has the right to avail of conditional examination of his
witness before a judge, or, if not practicable, a member of a Bar in good standing so designated by the judge in the
order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein.
(sec.12 &13, Rule 119). Modes of discovery under civil actions does not apply to criminal proceedings because the
latter is primarily governed by the REVISED RULES OF CRIMINAL PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA
499).

Bar (2009)
A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash information
on the ground that no preliminary investigation was conducted. Will the motion be granted?
SUGGESTED ANSWER:
NO, the motion to quash will not be granted. The lack of preliminary investigation is not a ground for a motion to
quash under the Rules of Criminal Procedure. Preliminary investigation is only a statutory right and can be waived.
The accused should instead file a motion for reinvestigation within five (5) days after he learns of the filing in Court of
the case against him (Sec. 6, Rule 112, as amended).

Bar (2013)
On his way to the PNP Academy in Silang, Cavite on board a public transport bus as a passenger, Police Inspector
Masigasig of the Valenzuela Police witnessed an on-going armed robbery while the bus was traversing Makati. His
alertness and training enabled him to foil the robbery and to subdue the malefactor. He disarmed the felon and
while frisking him, discovered another handgun tucked in his waist. He seized both handguns and the malefactor was
later charged with the separate crimes of robbery and illegal possession of firearm. A) Where should Police Inspector
Masigasig bring the felon for criminal processing? To Silang, Cavite where he is bound; to Makati where the bus
actually was when the felonies took place; or back to Valenzuela where he is stationed? Which court has jurisdiction
over the criminal cases? (3%)
SUGGESTED ANSWER:
Police Inspector Masigasig should bring the felon to the nearest police station or jail in Makati City where the bus
actually was when the felonies took place. In cases of warrantless arrest, the person arrested without a warrant shall
be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with
section 7 of Rule 11 (Section 113, Rules of Criminal Procedure). Consequently, the criminal case for robbery and
illegal possession of firearms can be filed in Regional Trial Court of Makati City or on any of the places of departure or
arrival of the bus.

(B) May the charges of robbery and illegal possession of firearm be filed directly by the investigating prosecutor with
the appropriate court without a preliminary investigation? (4%)
SUGGESTED ANSWER:
Yes. Since the offender was arrested in flagrante delicto without a warrant of arrest, an inquest proceeding should be
conducted and thereafter a case may be filed in court even without the requisite preliminary investigation. Under
Section 6, Rule 112, Rules of Criminal Procedure, when a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without
a need of such investigation provided an inquest has been conducted in accordance with existing rules.

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