September 01, 2004

Section 6 R110 speaks of matters that must be alleged in the complaint in

case of private crimes and in the information that may be filed by the public
prosecutor. In this allegations... sections 8 & 9. It is now required that if a
generic aggravating must be alleged in the designation of the offense and in
the acts or omissions constituting the offense charged.

In criminal law, 4 instances where the crimes are alleged in one information
without violating the rule on duplicity because in those instances, the law
imposes only one penalty. You have:
1. compound crimes
2. complex crimes
3. composite crimes
4. continued crimes

Know this instances, information may alleged more than one criminal act and
yet, a motion to quash the information is not proper because the law in this
regard imposes only a single penalty. So about this Sec 13, your problem is to
detect whether the crime alleged in the information come within the
exceptions, because if not, a MQ is proper. Given a situation where an
information charges more than 1 offense, the accused moved to quash the
info on the ground of duplicity, will the motion to quash be granted? There are
these 4 exceptions where that motion to quash shall be denied. In other
cases, duplicity of offenses would then be committed, and the motion to quash
then should be denied or has to be granted.

BAR: Crimes which ought not be complexed or which are not proper to be
complexed are alleged in 1 information supposedly as complex crimes. Where
it is not proper to complex a crime charged, the info shall be considered as
charging more than 1 offense. Therefore, a MQ may be filed.
In the second situation in Art 48 (RPC) where complex crime is provided, you
have there a situation where 1 offense is committed as a necessary means to
commit another offense. But if the situation presents 2 offenses, one offense
is not really a nec means to commit the other offense, then art 48 should not
apply. That information therefore charges more than 1 offense. It is not proper
to apply Art 48 even if the crimes are alleged to be complexed, you are not
supposed to treat them as complexed. So in such a case, the information
would suffer from the so-called duplicity of offenses. If the MQ is filed, that
motion is impressed with merit, and therefore should be granted.

On the other hand, if a MQ is not filed, the court would proceed to the trial
as though 2 informations were filed. The duplicity does not invalidate the info.
It amts only to a waiver of the right of the accused to move for the quashal of
the information on the ground of duplicity. But if that has not been invoked,
then that info will proceed to trial as though the crimes alleged are covered by
different information. Hence, where the court found the accused guilty, the
court may render only 1 judgment but in that judgment there will be 2
sentences punishing each of the crime that were complexed but which are not
proper for complexing. This is how you will react to a situation on this, and this
is the common situation given in the Bar exams.

Firstly, your ability to detect whether the crime should be complexed or not
is there put in question. Now what is the effect if that crime which are not
proper for complexing are charged in 1 information? What is the
corresponding rights of the accused in such a situation? This is what you have
to anticipate under that Sec13 of R110.
Now in Sec 14, you have there the rule on amendment. Amendment must
be viewed on whether it was made before the accused was arraigned and had
entered a plea or whether the amendment was made when the accused had
already entered a plea. Amending the complaint or the information is a matter
of right if it had to be done b4 the arraignment of the accused. However, if that
amendment would downgrade the crime originally charged, or exclude any of
the accused originally charged, even though the amendment would be done
b4 the accused is arraigned, the new rules now require prior leave of court for
this kind of amendments. Prosecution is required to file a motion to amend,
and this must be done explained with reasons address to the court where the
criminal case is filed. Notice to the offended party is required. Whatever
resolution the court will render on that motion for leave to amend, the reasons
for granting or denying the motion for leave to amend must be stated in the
resolution. In other words, the court cannot just simply make a summary
resolution that finding merit in the motion for leave, the same is granted. The
court must state in the resolution the reason which prompted it to grant or
deny the motion for leave. Otherwise, if the amendment does not involve a
downgrading of the crime originally charged, or would not bring about the
dropping or exclusion of any of the accused originally charged, amending the
information before the accused is arraigned is a matter of right.
If the accused has already been arraigned, however, you have to discern
whether the intended amendment is one of substance or one of form. If the
amendment is to be made b4 the accused is arraigned, there is no need to
discern whether the amendment is a matter of substance or a matter of form.
What you will give only attention to is whether the amendment would
downgrade a crime originally charged or would be about exclusion of any of
the accused originally charged. Whether the amendment is of substance or
form is irrelevant. You will only discern this if the accused had already been
arraigned and had entered a plea, because at this stage of the criminal
proceedings, only amendment of form is allowed, and even then, prior leave of
court is required. ALL AMENDMENTS AFTER THE ACCUSED HAD BEEN
ARRAIGNED REQUIRES LEAVE OF COURT. Although the amendment is
limited only to matters of form.
In Section14, the restriction that although the amendment is one of form, if
it would prejudice the substantial rights of the accused, the same shall not be
granted. For example:
The information alleges a date which however turned out to be
mistaken. An amendment to correct the date is only a matter of form. So if
what is reflected is 1998, and when it should be 1999, the amendment is a
matter of form. But if the crime charged is malversation for a certain period,
and the year stated was 1998, turned out that it should be 1989, SC ruled that
because of the period involved in the amendment, it would definitely affect the
defense of the accused, because malversation committed in 1989 is different
from a malversation committed in 1998. That amendment should not just be
allowed even though as a matter of form, it will prejudice the rights of the
accused, particularly in the matter of preparing his defense. The amendment
of form will only be allowed if it will not prejudice the substantial rights of the
accused.
If the case has already began on trial where the law it was supposed to be
malversation committed in 1998, but suddenly the prosecution realize that the
years must be 1989, the defense of the accused had already run into the
merits of the case, and that would definitely already prejudice substantial
rights of the accused in the matter of preparing his defense. So in that
situation, although the amendment is to be one of form, because it will be
prejudicial to the substantial rights of the accused, the same shall not be
allowed. Leave of court should not be granted.
On whether the amendment is one of substance or one of form, you do not
look into the nature of the amendment. Instead, you will look into whether the
amendment would subject the accused to double jeopardy or not. If the effect
of the amendment would be double jeopardy to the accused, the same is
regarded as an amendment of substance. On the other hand, although the
amendment may involve substantial matters, if the accused will not be
subjected to double jeopardy, the amendment is regarded only as an
amendment of form because the effect will not impair the rights of the accused
against double jeopardy.
A good example of this is the case of Teehankee vs Judge Madayag
regarding the killing of the lady Maureen Haultman. Initially, the charged was
for frustrated murder. The victim was then still alive and in the hospital.
Prosecution has presented already 2 witnesses testifying against the accused
when some complications developed and the victim died. Hence, there is a
need to amendment the information to charge consummated murder instead
of frustrated murder only. Because the case has already gone to trial, more
than arraignment and plea of the accused, the accused naturally vehemently
objected to the amendment. Amending the information from frustrated murder
to consummated murder is certainly involves substance because frustrated
murder carries a penalty one degree lower than consummated murder, and
yet in this case SC ruled it is only amendment of form. Although the substance
of the amendment would be one that would make the amendment an
amendment of substance, not an amendment of form, because it will not
subject the accused to double jeopardy, the SC ruled it is only an amendment
of form. This is because under sec 7 r117, you have there 3 exceptions where
double jeopardy will not attached. And one of them in the first instance is
where supervening facts developed giving rise to a graver offense arising from
the same fact or omission charged in the original information. In view of this
where no double jeopardy will attached to the accused by virtue of the
amendment, amendment is regarded only as one of form. So the same was
allowed in relation to the last paragraph of R117.
The criterion in determining whether the amendment is one of substance
or one of form is not on the essence of the amendment but on the effect upon
the right of the accused against double jeopardy that may result out of the
amendment. If the amendment will subject the accused to DJ, then it is an
amendment of substance. If the amendment will not subject the accused to
DJ, and in this regard you have to consider the 3 exceptions under S7 of
R117, that amendment is regarded for this purpose only as an amendment of
form..

VENUE FOR FILING CRIMINAL ACTIONS: (S15, R110)

General Rule: The criminal action shall be instituted at the place where the
crime was committed.
But in the case of the so-called continuing crime, prosecution of the
criminal action may be had in any of the places where the any of the essential
ingredient of the crime took place. But once the case is filed with the proper
court of that place where any of the ingredient of the crime was committed, the
court at that place will acquire jurisdiction to the exclusion of all the other
courts. In other words, you only regard these actions involving continuing
crimes as one of a continuing crime if the criminal action has not yet been
instituted. Once the criminal action has already been instituted, the court were
the same is filed will acquire jurisdiction to the exclusion of all the other courts .
Now, exceptionally you have Rules governing crime committed on a
moving train, airship, or motor vehicle. Also you have special rule governing
crimes committed in a vessel in the course of its voyage.
 In the first situation referring to a moving train, aircraft, or motor vehicle,
the rule refers to a crime committed in the course of the trip of that train,
aircraft, or vehicle. This will not allowed the filing of the criminal action
anywhere the vehicle may have passed. What is controlling is the particular
trip where that train, aircraft, or vehicle had passed during the commission of
the crime. Any other places after the trip will already be excluded. So if the trip
covers a train starting from Blumentritt Manila to Tarlac, the victim was killed
on board that train, if the criminal action would be filed with the court in
Dagupan, that is not proper anymore because that is not the trip where the
crime was committed on board that train. Any other trip taken by the train,
aircraft, or the motor vehicle involved would already be excluded.
However, for expediency to facilitate the prosecution, the new Rule have
included the place of departure, place of arrival, and the place where that
train, aircraft, or motor vehicle passed in the course of that trip. Although it
may have been pinpointed that the crime was committed while the train is
passing the territorial boundary of the particular province, it does not mean
that the criminal action may only be filed in that province.
For instance, the train left Blumentritt station for Tarlac. While the train was
passing Bulacan, the victim quarrel with some other passenger. Because of
the quarrel (the object of violence), he was killed. Upon arrival of the train in
Tarlac, the relatives of the passenger were informed. So the criminal action
was filed there.
The accused filed a motion to quash on the ground that the court in Tarlac
has no jurisdiction over the crime, since it is pinpointed that the crime was
committed within the provincial boundary of Bulacan, the criminal action
should be filed in Bulacan. You are asked, would you grant the MQ and why?
The special rule will govern, not the rule in the first part of Sec 15, and this
rule allows alternative venue for the filing of the criminal action as long as it is
filed in any of the alternative venues mentioned here, the filing is proper. Any
motion to quash shall be denied. Same rule applies to a crime committed on
board a vessel in the course of its voyage. If the vessel was anchored in
Manila still awaiting for cargoes when the crime was committed, and after the
vessel has already been loaded with cargoes, it left. The crime can only be
prosecuted in Manila. Exception of a crime committed on board a vessel does
not apply if the crime was not committed in the vessel in the course if its
voyage.
Unlike in the case of a train, aircraft, or motor vehicle, the place of
departure is not included. Only the first port of entry, port of arrival and the
places where the vessel passed in the course of that voyage.
In a case where an inter-island vessel left the North Harbor for Cebu.
Having left the N.Harbor, the stewards of the vessel started counting the
passengers and inspecting the tickets. They came upon one who was a stow-
away, who simply entered the vessel surreptitiously. The steward took him
bodily, threw him out of the vessel. The vessel was then within the territorial
boundary of Mindoro. The vessel arrived in Cebu. The relatives who were
expecting the passenger… for him. He was not on board the vessel. Some
passengers testified that the fellow was thrown out of the vessel. So the body
was found in the shores somewhere in Mindoro, already bloated, in fact it was
buried. To identify the same, the relatives caused the exhumation of the
corpse, and they identified that he was the one they were anticipating to arrive
at Cebu. So the criminal action was filed in Cebu. The accused stewards filed
a MQ claiming that since it was established that the crime was committed
within the province of Mindoro, criminal action should be filed there.
SC ruled that is not the rule applicable to a crime committed on board a
vessel during the voyage. There are several alternative venues for the
prosecution of the criminal action, and one of that is the first port of entry. As
long as the criminal action is instituted in any of the courts of the place
governing the vessel, or the crime committed on board the vessel, the same is
valid.
For crimes committed outside of Philippine territorial waters but which
under Article 2 of Revised Penal Code are governed by Philippine criminal
law, prosecution may be had only before a RTC, cannot be with an inferior
court. So the criminal prosecution may be filed before any Regional Trial
Court. The RTC acquiring jurisdiction first will exclude the others.

Under R111 on the matter of a civil action being considered filed upon the
institution of the criminal action, you have there exceptions to the rule.
Reservation is required to prosecute the civil liability separately from the
criminal action, unless, the civil liability is waived or the offended party filed a
civil action ahead of the criminal action or where the law does not allow any
reservation, otherwise the civil liability arising from the crime is deemed
instituted in the same criminal action.

Under the rule before the present revised rules, you will note that the civil
liability that goes with the criminal action is not limited only to those arising
from the crime, but rather covers all arising from the act. Now, the rule used
the word “crime”. There is a big distinction on this. That is why under the
former rule, any recovery of civil liability whether arising from the crime or not,
as long as it is arising from the same act, even though it is one of culpa
contractual, the same must be reserved. Otherwise, it is deemed instituted or
waived. Now it is again back to the old rule. Only the civil liability arising from
the crime are deemed instituted there. Hence, there is no need to make a
reservation for the filing of a separate civil action grounded on Article
32,33,34,&2176 of the Civil Code. Before this is not so. A reservation is still
required because these are civil liability arising from the act. Now that the civil
liability is limited to those arising only from the crime. No reservation is
needed. These actuations of making the rules vacillating from one rule to
another causes confusion. Jurisprudence rendered under the old Rule were
no longer true under the new Rule. Unless you do not pay attention to the
wordings of the Rule, in a way, the high court is resorting to trial and error
method, and that makes the study of the Rules confusing and difficult. You
have to dissect the provision. That is why reading commentaries on this may
be not trustworthy because the commentaries may be based on the old rule,
which is now different. You must have noticed this. In the different
amendments and revisions of the Rules, there are rules that have been
changed off and on, like this reservation, this has been changed 3 times. At
one time, following the view of Justice Barredo, reservation is not needed for
these actions under Article 32-34 & 2176 (NCC) because these are provided
in the Civil Code, and the civil code does not require any reservation. To
require a reservation would be to amend a substantive law. So in that case of
Santiago, SC said, no need to reserve because these are provided under the
articles of the Civil Code which is substantive law, and procedural law cannot
modify substantive law. But after that, there was required for its an orderly
administration a reservation. Thereafter, no need for a reservation. Now, no
need of a reservation again. {In the last rule, there is a need for a reservation.
So this simple thing changes 3 times, and lawyers are confused. They cannot
make up their minds. And that is why your study of law has become more
difficult. Bar reviews have become indispensable. And that is why there are
many review centers catering to those who would like to take the Bar exams.
(I) really do not understand what is happening to this country. Everyone
seems to have a bright idea. For all you know, these are indications of
insanity, unsound mind already. They are changing procedural rules every
now and then. The old Rules we learned before are better. There you have
stare decisis. Now there is no such thing as stare decisis anymore. They
changed the rules every now and then. No stability in jurisprudence. The rule
about review of cases where the penalty is reclusion perpetua, life
imprisonment, or death, has been a rule of several decades. But suddenly
between July of this year (2004), the high court came out with a different rule.
So everybody now who is taking the Bar are in a quandary whether to follow
that or not. And I have been receiving so much text asking me,”Is it true that
the cases, there is a new case where death penalty is now to be reviewed by
the CA. such confusion, that is why there is a move to enact a law to define
the rule-making power of the SC. Some lawmakers consider that the SC
believe it can do anything that it want to do, even though it is already
transgressing the bounds of constitutionality. There is a pending move to cut,
or define the rule making power (of the SC). You know the high court has
been transgressing substantive laws, like this rule about offsetting of a
aggravating, generic aggravating with mitigating. This has been modified. You
can only do that if the aggravating is alleged. So even if it is proven during the
trial because the accused did not object it really took place at that time, it is
not alleged, the court cannot appreciate that. Crime committed at nighttime,
the accused may not object because he knew that he really committed the
crime at nighttime. But because it is not alleged, the court should not take that.
Unfair to the prosecution. If there is any mitigating, that mitigating will stand
without any offsetting. Is that fair? Is that justice?
 Wherein before when an accused in the crime of rape, you can have the
man to acknowledge the child born out of the rape. Suddenly they changed
this, for no reason at all. You cannot understand what is the mentality of some
of these people. They are not really ruling in favour of justice. They are ruling
in favour of injustice. So leaving the poor child without anybody
acknowledging him, who have brought him into this world. The plea
recognizing the convicted the offender to acknowledge the child and not
acknowledging him, the high court inclined towards not acknowledging him, in
effect punishing the poor child. Where is justice there? We cannot understand.
And that may be the cause of so many calamities visiting the Philippines. So
many evil people around. Part of Luzon is underwater. Calamities after
calamities visiting the country, because of the evil nature of so many politician,
and even those who are supposed to dispensed justice are more inclined to
do injustice. Justice Feliciano explained that the acknowledgement is not to
confer status, but only to establish the filiation of the child to show that the
child did not come out of this world without any father, and yet the high court
ruled otherwise. So you can expect more of these uncertainties. The best
thing is read the rules. Observe the wordings there.

Now the civil liability that goes with the crime is limited to those arising
from the crime, not arising from the act or omission.

We are being disciplined…… to practice law if these are the kind of

judgment that we will work out. I myself am thinking of giving up these lectures
in bar review. I wanted to leave this country.

The general rule is the reservation may be made to authorize the filing of a
separate civil action. Whereas the civil action did not arise out of the crime
charged, so you have these civil actions under Articles 32,33,34,&2176 of the
Civil Code. They can proceed independently of the criminal action without the
necessity of any reservation. For those civil liability arising from the crime, the
reservation is required if the aggrieved party would like to prosecute the claim
in a separate action. Yet, under the the new rules now, the civil action in
whatever stage it maybe will have to be suspended until a judgment is
rendered in the criminal action and the judgment must become final and
executory. And if the criminal action is already filed and a reservation is made,
the civil action cannot be filed anymore until after the criminal action has been
adjudged and the judgment had become final and executory. Is a good thing
that the new rules allow the offended party at anytime before judgment in the
civil action or in the criminal action to move for a consolidation of the civil
action toward the criminal action. If the offended party made a mistake of
moving for a reservation to file a separate civil action, a criminal action had
dragged so long, not so much in the trial court now because of the Speedy
Trial Act, but before the appellate court. So the aggrieved party may desire to
consolidate his civil action with the criminal action.
But once a judgment had been rendered in the criminal action, the
consolidation cannot be done anymore. He can only do so if there is yet no
judgment of conviction or acquittal rendered in the criminal action. Then also,
in any stage of the civil action, this maybe consolidated with the criminal
action, provided there is yet no judgment rendered by the court trying the civil
action.
Questions were asked on these provisions by one of the reviewees: Why is
it that the prosecution will cross-examine the complainant and his witnesses in
such a case where the civil action is consolidated with the criminal action?
Why not direct examination?
The situation referred to is where the witnesses and the complainant had
already testified in the civil action, so that the testimony will then be adopted in
the criminal action. The testimony may ran counter to the theory of the case of
the prosecution. Since they had already testified in the civil action, and what is
consolidated is only the civil action, they cannot be examined in a direct
examination any further. The only way the prosecutor can correct any
testimony that does not jibe with the theory of the prosecution in the criminal
case is to ask cross examination question, not a direct examination anymore.
That is why the rule refer to cross examination to clarify only, but not to add
any further. Because what is involved is only a claim for civil liability.
2 CASES where a reservation is not proper, whether the offended party likes it
or not, the civil liability arising from the crime is instituted in the criminal action
against the accused.
FIRST, in the case of criminal prosecution under BP22. No reservation to
file a separate civil action is allowed.
SECOND, in criminal actions against public officers for crimes w/in the
jurisdiction of the Sandiganbayan.

Given a problem in these cases, even if the offended party did not make
any reservation, the same is immaterial. He cannot file a separate civil action.
The rule itself prohibits this. The civil actions to recover indemnity arising from
the crime is instituted in that same criminal action.

For the court trying the criminal action to acquire jurisdiction over the civil
liability arising from the crime, the correct amount of the docket fee must be
filed, so must be paid.
Where the amount of the civil liability is already determined, the filing fee
based on that amount must be paid. Otherwise, the court will not acquire
jurisdiction over the claim. Excluded however in the payment of the docket fee
are actual or compensatory damages. But all other damages shall be
included. However, the amount of the damages are not determined, so they
will yet be determined during the trial, the docket fee will be a first lien on the
amount that maybe awarded under the judgment.

2 situations here. ONE where the amount of damages other than

compensatory are stated already, in which case, the required docket fee must
be paid. SECOND situation is where the amount of such damages are yet
undetermined, in which case the filing fee therefore will have to be the first lien
on the judgment awarding the same.

In the case of violations of BP22, the docket fee is based on the value of
the check. Actually, the value of the check is actual damages to the payee.
Yet here, the payee who will prosecute is required to pay the docket fee based
on the value of the check involved. So even without any assurance whether
he could collect or not, he is made to suffer additional damages by the
government. That is why the court does not allow a reservation, because if
there is a reservation, no filing fee. Without the reservation, if those in the
criminal action, a criminal action will not be filed in court unless the filing fee is
paid. So this is one criminal action where there is a filing fee. And the filing fee
is based on the gross value of the check involved. It would have been fair to
make the filing fee based on the amount as a lien for any recovery that the
payee may get, rather than requiring the offended party which the payee of
the bouncing to check to pay outright the filing fee, even before he has
collected a single centavo. So that would be adding insult to injury. Filing fee
now is exorbitant. For an amount of P1M, the filing fee is more than 9000. So
if you cannot have that amount, you cannot sue anymore for that value. The
courts have become mercenary. They should have made the filing payable as
a lien on the amount recovered. There is no certainty that the offended party
would be able to collect, and yet he is made to pay filing already, and that
would include the sheriff’s fees or incidental fees. Everything going to the
worst.

R112 on the Preliminary investigation

Before the filing of an information in court for those crimes where the rules
now require prelim investigation, that investigation must be conducted. OTW,
if invoked w/in the provisions of the rules, a denial therefore will amount to a
denial of due process. Therefore, the proceedings will be questionable as null
and void.

I pointed out to you the important provisions of R112. Make a distinction

whether the preliminary investigation is conducted by a MTC judge from all
other prosecutors. Bear in mind that the motion to dismiss is not allowed. First
of all the steps required of a person who have been arrested w/out a warrant
of arrest but on valid grounds, requiring a waiver of the provision of the Art
125. This also is covered by RA7438.
After PI, case is filed in court. If the accused is not yet under arrest, the first
thing the court were the criminal action is filed would do is to conduct a
preliminary examination for the issuance of a warrant of arrest. WA is
necessary if the accused has not yet been arrested for the court to acquire
jurisdiction over the person of the accused. The court cannot just proceed. If
the accused had been arrested already pursuant to a warrant issued by the
MTC on prelim investigation, the court where the criminal action is filed will
only issue an order of commitment, not anymore a WA. That order will confer
jurisdiction upon that court to proceed with the criminal action.

Rule on Arrest under R113. The common controversy is with respect to

Sec 5 where warrantless arrest is valid. This comes in the first order of the
criminal prosecution where an offender has been arrested. The other
provisions of R113 on arrest is not your concern. That is the concern of the
arresting policeman. The concern of the lawyer here is only on the legality of
the warrantless arrest.

When a person has been arrested, the first thing to his mind and to those
of his family is how to bring him out of detention. So the rule on Bail.

BAIL (R114)
 A person who had been arrested for a crime may regain provisional
liberty in either of 2 principal ways:
1. through a Recognizance
2. through a posting of a Bail. The bail may be in cash, in property,
or in surety bond

 What is recognizance? What is the legal basis for this?

(RA6036-Laurel Law)
A recognizance is a solemn undertaking by a prisoner or person
held in detention to comply with the obligation that the court or
magistrate may impose as a condition for his provisional release from
such detention which is made of record in that court or tribunal.
The common undertaking is for the prisoner to appear in court
whenever his appearance is required.

 Under the Laurel law, (RA6036), a recognizance is available if:

1. The crime involve is punishable with imprisonment of not more
than 6 months or arresto mayor and/or a fine not exceeding
P2000.
2. The offender must establish to the satisfaction of the court that
he does not have the means to post the required bail. The
accused may be employed, but if his income is not sufficient for
the subsistence of his family, he may apply for recognizance.
 3. The offender must not be one of those disqualified from availing
of recognizance under RA6036, like: ( see Regalado, vol 2, p372,
2001 ed))
a. Those who had escaped from legal confinement, evaded
sentence, or jumped bail;
b. Those caught in flagrante delicto
c. Those who confessed to the commission of the crime
d. Habitual delinquency or recisdivism, or those who had
been previously convicted of an offense to which the law
or ordinance attaches an equal or greater penalty or for
two or more offenses to which it attaches a lighter penalty
e. Those who commits the offense while on parole or under
conditional pardon
f. When the accused has previously been pardoned by the
municipal or city mayor for violation of municipal or city
ordinance for at least 2 times.
g. The offender is found to have previously violated the
provisions of Sec 2, RA6036;

 Five (5) instances where the law allows a recognizance

1. When the crime committed carries a penalty of not more than 6
months and/or a fine not exceeding P2000, provided the
offender does not have the means to post the required bail and
he has not been disqualified under RA6036.
2. In crimes governed by the Rules on Summary Procedure.
Generally, a warrant of arrest is not allowed, but only summons.
BUT if the accused would not comply with the summons, the
court may be compelled to issue a warrant. Here, the court may
allow release on recognizance.
3. In the case of a youthful offender who is being held for mental or
physical examination or for trial under P.D. 603, known as the
Child and Youth Welfare Code
4. When the offender after conviction by the trial court, filed an
application for probation but such application has not yet been
resolved. If the accused is detained, he may be allowed
provisional liberty on a recognizance pending resolution of his
application for probation.
(NOTE: Judgment immediately becomes final & executory
when the offender apply for probation. The only way he could
regain his provisional liberty is to file a recognizance)

5. Where the accused has been under preventive imprisonment for

a period equal to or more than the duration of the minimum of
the penalty that may be imposed on him if he would be found
guilty, without considering any mitigating circumstance, nor the
Indeterminate Sentence law. Such offender may be allowed
provisional liberty on a reduced bail or recognizance.

Outside of this 5 instances, the court with whom a

criminal case is filed for trial has no authority to allow the
 accused to be release on the strength of a recognizance.
This are the only five instances. Outside of this, bail is
already required.
So if he cannot post the bail, he will remain under
preventive imprisonment. But he will be given credit for
the preventive imprisonment unless he is disqualified from
that credit. Article 29 RPC will operate.

 When is bail a matter of right?

Bail is a matter of right for all persons in custody before or after
conviction by the inferior courts and before conviction by the RTC, except
in the latter instance, when the imposable penalty is death, reclusion
perpetua, or life imprisonment. (codal: Sec 4, R114)

 When is bail a matter of discretion?

1. before conviction for a capital offense or a crime punishable by
death, reclusion perpetua, or life imprisonment, the exercise of
discretion being dependent on whether the evidence of guilt is
strong;
2. after conviction by the RTC imposing a penalty of imprisonment
which does not exceed 6 years; (implied only under Sec5 R114)
3. after conviction by the RTC wherein a penalty of imprisonment
exceeding 6 years but not more than 20 years is imposed, and
not one of the circumstances stated in Sec 5 R114 or any other
similar circumstance is present and proved;

 When bail mat be denied or cancelled after the accused was already
convicted in the RTC?
If the penalty imposed by the trial court is imprisonment exceeding 6
years but not more than 20 years, and upon a showing by the prosecution,
with noticed to the accused, of the following:
1. That the accused is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
2. That the accused has previously escaped from legal
confinement, evaded sentence, or has violated the conditions of
his bail without valid justification;
3. That he committed the offense while under probation, parole, or
conditional pardon;
4. That the circumstances of his case indicate the probability of
flight if released on bail; or
5. That there is undue risk that he may commit another crime
during the pendency of the appeal. (Sec 5, R114)

 Although bail is a matter of discretion, the general rule is that the

accused has a right to bail. That right may only be denied where
the evidence of guilt is strong. And the burden of proving this fact is
upon prosecution. Hence, a hearing is mandatory to give the
prosecution the opportunity to prove that the evidence of guilt is strong
 and for the court to appreciate the evidence adduced by the
prosecution whether bail should be granted or not. [ see Sec 9 R114]

 It is not enough that the prosecution would file a manifestation in court

that he has no objection to the application for bail. The court must
conduct a hearing. Otherwise, the court would be proceeding w/out or
in excess of jurisdiction in allowing bail w/out the benefit of a hearing
when bail is a matter of discretion. A hearing is MANDATORY.

 When bail is a matter of right, the court cannot just grant it ex-parte. A
hearing is also necessary. That is because even when bail is a matter
of right, there are certain factors (see Sec 9, R114) that the trial court
will have to determine in fixing the amount of the bail. Otherwise, it
would imply that the court fixed the amount arbitrarily.
Sec 9, R114 --- The judge who issued the warrant or granted the
application {for bail} shall fix a reasonable amount of bail
considering primarily, but not limited to the following :
1. financial ability of the accused to give bail;
2. nature and circumstances of the offense;
3. penalty for the offense charged;
4. character and reputation of the accused;
5. age and health of the accused;
6. weight of the evidence against the accused;
7. probability of the accused qppearing at the trial;
8. forfeiture of other bails;
9. the fact that the accused was a fugitive from justice when arrested;
and
10. pendency of other cases where the accused is on bail

 Bail is a sort of security to assure that the accused would not go into
hiding and evade trial for the crime of which he has been charged in
court. The primary consideration here is the probability of flight. This is
corollary to the prerogative of the accused to cause the arrest and
detention of an accused in order to hold him, or it would appear that
there is such necessity so that he will not frustrate the ends of justice.
Therefore, when the accused is shown to be already bedridden or
crippled, probability of flight is already negative. Even if bail is a matter
of discretion, it would be grave abuse of discretion to deny bail.

 Where to require the accused to be held in jail would endanger his very
life, let us say, he is suffering from cardiac arrest, that he is under
sedation, despite of that because the evidence of guilt is strong, the
court order that he be taken to jail when he is already under dextrose,
that is inhuman. Primary criterion is probability of flight.

 Crimes carrying the penalty of reclusion perpetua, death, or life

imprisonment where evidence of guilt is strong, in such situation, bail
may be denied. When a person is prosecuted for a crime carrying these
penalties, before preliminary investigation has been conducted, bail is a
matter of right. If after preliminary investigation, it would be determined
that the evidence of guilt is strong, then the person may be ordered re-
 arrested and his bail cancelled. The denial of the bail may come only
after preliminary investigation.

 Even when the offender has already applied for bail, he may still
question the vailidity of his arrest or the legality of the issuance of the
warrant for his arrest, the regularity of his arrest, the absence of
preliminary investigation of the charge against him, provided this is
raised before the arraignment and prior to entering his plea
therein.
 CASE: People vs Rolito Go

 A person arrested for a crime is now allowed to post bail, even before
he is charged in court.

 Note: Where a criminal case is already filed in court, and the crime is
punishable by reclusion perpetua, death, or life imprisonment,
application for bail can only be had in the court where the case is filed.
This is necessary………… [read: Sec 17 R114 ]

 When the amount of the bail fixed by the judge where the application
for bail is filed is exorbitant, the applicant may file for a reduction of bail
in the criminal court where the case is filed.