PRELIMINARY CHAPTER

What is criminal procedure?

Criminal procedure is the method prescribed by
law for the apprehension and prosecution of
persons accused of any criminal offense and for
their punishment, in case of conviction.
What is criminal procedure concerned
with?
Criminal procedure is concerned with the
procedural steps through which the criminal case
passes, commencing with the initial investigation
of a crime and concluding with the unconditional
release of the offender. It is a generic term used
to describe the network of laws and rules which
govern the procedural administration of criminal
justice.
What
are
procedure?

the

sources

of

criminal

1. Spanish Law of Criminal Procedure

2. General Order No. 58, dated April 23 1900
3. Amendatory acts passed by the Philippine
Commission
4. The various quasi acts, the Philippine Bill
of 1902, the Jones Law of 1916, the
Tydings-McDuffie
Law,
and
the
Constitution of the Philippines
5. The Rule of Court of 1940, and the 1964,
1985, and 1988 Rules on Criminal
Procedure
6. Various Republic Acts (RA 240, Judiciary
Act, RA 8249 creating the Sandiganbayan,
Speedy Trial Act)
7. Presidential Decrees
8. 1987 Constitution, particularly Art. III Bill
of Rights
9. Civil Code (Art. 32, 33, 34)
10. Certain judicial decisions
11. RA 8393 The Speedy Trial Act
12. Circulars
13. The Revised Rules on Criminal Procedure
(Dec 1, 2000)
What are the three systems of criminal
procedure?
1. Inquisitorial

the
detection
and
prosecution of offenders are not left to the
initiative of private parties but to the
officials and agents of the law. Resort is
made to secret inquiry to discover the
culprit, and violence and torture are often
employed to extract confessions.
The

1
judge is not limited to the evidence
brought before him but could proceed with
his
own
inquiry
which
was
not
confrontative.
2. Accusatorial The accusation is exercised
by every citizen or by a member of the
group to which the injured party belongs.
As the action is a combat between the
parties, the supposed offender has the
right to be confronted by his accuser. The
battle in the form of a public trial is
judged by a magistrate who renders a
verdict.
The
essence
of
the
accusatorial system is the right to be
presumed innocent.
To defeat this
presumption,
the
prosecution
must
establish proof of guilt beyond reasonable
doubt (moral certainty).
3. Mixed This is a combination of the
inquisitorial and accusatorial systems.
The examination of defendants and other
persons before the filing of the complaint
or information is inquisitorial.
The judicial set-up in the Philippines is
accusatorial or adversary in nature. It
contemplates two contending parties before
the court, which hears them impartially and
renders judgment only after trial.
Distinguish between criminal law and
criminal procedure.
Criminal law is substantive; it defines crimes,
treats of their nature, and provides for their
punishment. Criminal procedure, on the other
hand, is remedial or procedural; it provides for
the method by which a person accused of a crime
is arrested, tried and punished. Criminal law
declares what acts are punishable, while criminal
procedure provides how the act is to be
punished.
How are the rules of criminal procedure
construed?
The rules of criminal procedure shall be liberally
construed in favor of the accused and strictly
against the state to even the odds in favor of the
accused against whom the entire machinery of
the state is mobilized.
What is jurisdiction?
Jurisdiction (in general) is the power or authority
given by the law to a court or tribunal to hear
and determine certain controversies. It is the

power of courts to hear and

controversy
involving
rights
demandable and enforceable.

determine a
which
are

Distinguish jurisdiction from venue.

2
nature of the position of the accused at the time
of the commission of the offense. In this case,
jurisdiction is determined by the law in force at
the time of the commission of the offense.
What is adherence of jurisdiction?

Venue is defined as the particular country or

geographical area in which a court with
jurisdiction may hear and determine a case. It
means the place of trial. On the other hand,
jurisdiction is the power of the court to decide the
case on the merits. Venue is thus procedural,
while jurisdiction is substantive. In civil cases,
venue may be waived or stipulated by the
parties.
On the other hand, jurisdiction is
granted by law or the Constitution and cannot be
waived or stipulated.
What is criminal jurisdiction?
Criminal jurisdiction is the authority to hear and
try a particular offense and impose the
punishment for it.
What are the elements of jurisdiction in
criminal cases?
1. The nature of the offense and/or the
penalty attached thereto
2. The fact that the offense has been
committed
within
the
territorial
jurisdiction of the court.
What are the requisites for
exercise of criminal jurisdiction?

valid

A was charged with an offense whose

penalty was below 6 years. The case was
filed with the MTC.
After trial, the MTC
convicted him of an offense with a higher
penalty.
A questioned the conviction,
claiming that the MTC had no jurisdiction
over
the
offense
since
the
penalty
prescribed for it was higher than 6 years. Is
A correct?
A is wrong. Jurisdiction over the subject matter
is determined by the authority of the court to
impose the penalty imposable given the
allegation in the information.
It is not
determined by the penalty that may be meted
out to the offender after trial but to the extent of
the penalty which the law imposes for the crime
charged in the complaint.
If during the proceedings, the court finds
that it has no jurisdiction, how should it
proceed?

1. Jurisdiction over the person

2. Jurisdiction over the territory
3. Jurisdiction over the subject matter
What is jurisdiction over the subject
matter?
It is the power to hear and determine cases of
the general class to which the proceedings in
question belong and is conferred by the
sovereign authority which organizes the court
and defines its powers.
Which law determines the jurisdiction of
the court the law in force at the time of
the commission of the offense or the one in
force as of the time when the action is filed?
Jurisdiction is determined by the law as of
time when the action is filed, not when
offense was committed. The exception to
rule is where jurisdiction is dependent on

The principle of Adherence of Jurisdiction means

that once jurisdiction is vested in the court, it is
retained up to the end of the litigation.
It
remains with the court until the case is finally
terminated. The exception to this is where
a subsequent statute changing the jurisdiction of
a court is given retroactive effect, it can divest a
court of jurisdiction over cases already pending
before it before the effectivity of the statute.

the
the
this
the

Where the court has no jurisdiction, lower courts

should simply dismiss the case. On the other
hand, the Supreme Court and the Court of
Appeals may refer the case to the court of proper
jurisdiction.
What is the jurisdiction of Municipal Trial
Courts in criminal cases?
1. Exclusive original jurisdiction over all
violations
of
city
or
municipal
ordinances
committed
within
their
respective territorial jurisdiction;
2. Exclusive original jurisdiction over all
offenses
punishable
with
imprisonment not exceeding 6 years
regardless of the fine and other accessory
penalties and civil liability

3. Offenses involving damage to property

through criminal negligence
4. Where the only penalty provided by law is
a fine: exclusive original jurisdiction over
offenses punishable with a fine not
exceeding P4,000
5. Election offenses: Failure to register or
failure to vote
6. Special Jurisdiction to hear and decide
petitions for a writ of habeas corpus or
application for bail in the province or city
where the RTC judge is absent
7. BP 22 (?)
What is the jurisdiction of Regional Trial
Courts in criminal cases?
1. Exclusive original jurisdiction in all
criminal cases not within the exclusive
jurisdiction of any court, tribunal or body,
except those falling under the exclusive
and
concurrent
jurisdiction
of
the
Sandiganbayan. All criminal cases
where the penalty is higher than 6 years,
including
government-related
cases
wherein the accused is not one of those
falling under the jurisdiction of the
Sandiganbayan.
2. Other laws which specifically lodge
jurisdiction in the RTC:

3
Jurisdiction over the whole complex crime is
lodged with the trial court having jurisdiction to
impose the maximum and more serious penalty
on an offense forming part of the complex crime.
What is territorial jurisdiction?
The requirement of territorial jurisdiction means
that a criminal action should be filed in the place
where the crime was committed, except in those
cases provided by Article 2 of the Revised Penal
Code.
How is jurisdiction over the person of the
accused acquired?
Jurisdiction over the person of the accused is
acquired upon his arrest or upon his voluntary
appearance or submission to the court.
Can jurisdiction over the person of the
accused be waived?
Yes, unlike jurisdiction over the offense which is
conferred by law or the Constitution, jurisdiction
over the person of the accused may be waived.
For example, any objection to the procedure
leading to the arrest must be opportunely raised
before the accused enters his plea, or it is
deemed waived.

a. Law on written defamation or libel

b. Decree on Intellectual Property
c. Dangerous Drugs Cases except
where the offenders are under 16
and there are Juvenile and
Domestic Relations Courts in the
province

X was charged in court with an offense. X

filed a motion to quash on the ground that
the court had no jurisdiction over his person
because the arrest was illegal and because
the information was incomplete.
Can X
invoke lack of jurisdiction of the court over
his person?

3. Appellate jurisdiction over all cases

decided by MTCs in their respective
territorial jurisdiction.
4. In areas where there are no family courts,
the cases falling under the jurisdiction of
family courts shall be adjudicated by the
RTC

No, X cannot invoke the lack of jurisdiction of the

court.
One who desires to object to the
jurisdiction of the court over his person must
appear in court for that purpose only, and if he
raises other questions, he waives the objection.

What is the meaning of the term regular

courts?
Regular courts refer to civil courts as opposed to
military courts or courts martial. Military courts
have no jurisdiction over civilians.
Which court
complex crime?

has

jurisdiction

over

Is the presence of the accused necessary

in order for the court to act on a motion?
It is not necessary for the court to first acquire
jurisdiction over the person of the accused to
dismiss a case or grant other relief. The outright
dismissal of the case even before the court
acquires jurisdiction over the person of the
accused is allowed, except in applications for bail,
in which case, the presence of the accused is
mandatory.

4
RULE 110 PROSECUTION OF OFFENSES
How are criminal actions instituted?
Criminal actions shall be instituted as follows:
(a) For offenses where a preliminary investigation
is required, by filing the complaint with the
proper officer for the purpose of conducting the
requisite preliminary investigation.
(b) For all other offenses, by filing the complaint
or information directly with the MTC or the
complaint with the office of the prosecutor.
What is the effect of the institution of the
criminal action on the period of prescription
of the offense?
The institution of the criminal action shall
interrupt the running of the period of prescription
of the offense unless otherwise provided in
special laws.
The rule does not apply to
violations of municipal ordinances and special
laws. The prescriptive periods for violations of
special laws are interrupted only by the
institution of judicial proceedings for their
investigation and punishment, while violations of
municipal ordinances prescribe after two months.

Distinguish
institution
commencement of an action.

from

For offenses which require a preliminary

investigation, the criminal action is instituted by
filing the complaint for preliminary investigation.
The criminal action is commenced when the
complaint or information is filed in court.
Can the offended party go directly to
court to file a criminal action?
No. Before a complaint is filed in court, there
should have been a confrontation between the
parties before the Lupon chairman. The Lupon
secretary must certify that no conciliation or
settlement was reached, attested to by the Lupon
chairman. The complaint may also be filed if the
settlement is repudiated by the parties.
Are there exceptions when the parties
may go directly to court?
1. Where the accused is under detention
2. Where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings
3. Where
actions
are
coupled
with
provisional remedies

4. Where the action may be barred by the

statute of limitations
When
allowed?

are

amicable

settlements

not

1. Where one party is the government

2. Where one party is a public officer or
employee and the dispute relates to the
performance of his official functions
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000
4. Where there is no private offended party
5. Where the dispute involves real properties
located in different cities or municipalities
6. Disputes involving parties who reside in
different
barangays,
cities,
or
municipalities
7. Other cases which the President may
determine in the interest of justice or
upon
the
recommendation
of
the
Secretary of Justice.
What is the form required
complaint or information?

for

the

The complaint or information shall be in writing,

in the name of the People of the Philippines and
against all persons who appear to be responsible
for the offense involved.
Why should a complaint or information be
in the name of the People of the Philippines?
Criminal actions must be commenced in the
name of the People because just as a crime is an
outrage against the peace and security of the
people at large, so must its vindication be in the
name of the People. However, it the action is
instituted in the name of the offended party or of
a particular city, the defect is merely of form and
may be cured at any state of the trial.
Why should the complaint or information
be in writing?
The complaint or information should be in writing
so that the court has a basis for its decision, to
inform the accused of the nature and cause of
the accusation to allow him to present his
defense, and so that nobody will forget the
charge, given the fallibility of human memory.
What is a complaint?
A complaint is a sworn written statement
charging a person with an offense, subscribed by

the offended party, any peace officer, or other

public officer charged with the enforcement of
the law violated.
Who may file a complaint?
The complaint may be filed by the offended
party, any peace officer, or other public officer
charged with the enforcement of the law violated.
Who is the offended party?
The offended party is the person actually injured
or whose feeling is offended. He is the one to
whom the offender is also civilly liable under
Article 100 of the RPC.
If the offended party dies before he is
able to file a complaint, can his heirs file it
in his behalf?
No. The right to file a criminal action is personal
and abates upon the death of the offended party.
It is not transmissible to the heirs.
Can you file a criminal complaint against a
juridical person?
No, a criminal action cannot lie against a juridical
person. It the corporation violates the law, the
officer, through whom the corporation acts,
answers criminally for his acts.
May criminal prosecutions be enjoined?

5
9. Where the charges are manifestly false
and motivated by the lust for vengeance
10. When there is clearly no prima facie case
against the accused and a motion to
quash on that ground has been denied
11. Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners.
If the complaint is not sworn to by the
offended party, is it void?
No. A complaint presented by a private person
when not sworn to by him is not necessarily void.
The want of an oath is a mere defect of form
which does not affect the substantial rights of the
defendant on the merits.
When is a complaint required?
A sworn written complaint is required if the
offense is one which cannot be prosecuted de
officio, or is private in nature (adultery,
concubinage, abduction, seduction, acts of
lasciviousness, defamation consisting in the
imputation of any of the above offenses), or
where it pertains to those cases which need to
be endorsed by specific public authorities
(Anti-Dummy Board with respect to the AntiDummy Law, National Water and Air Pollution
Control Commission with respect to the AntiPollution Law).
What is an information?

No. Public interest requires that criminal acts

must be immediately investigated and prosecuted
for the protection of society.
What are the exceptions to the rule that
criminal prosecutions may not be enjoined?
1. To
afford
adequate
protection
to
constitutional rights of the accused
2. When
necessary
for
the
orderly
administration of justice or to avoid
oppression or multiplicity of actions
3. Where there is a prejudicial question
which is subjudice
4. When the acts of the officer are without or
in excess of authority
5. Where the prosecution is under an invalid
law, ordinance, or regulation
6. When double jeopardy is clearly apparent
7. Where the court had no jurisdiction over
the offense
8. Where it is a case of persecution rather
than prosecution

An information is an accusation in writing

charging a person with an offense, subscribed by
the prosecutor and filed with the court.
What is the difference
complaint and an information?
COMPLAINT
May be signed by the
offended party, any
peace officer, or other
public officer charged
with the enforcement
of the law violated
Sworn
to by
the
person signing it

May be filed either

with the office of the
prosecutor or with the
court

between

INFORMATION
Always
signed
prosecuting officer

by

Need not be under oath

since the prosecuting
officer filing it is already
acting under his oath of
office
Always filed with the
court

 Who must prosecute criminal actions?

The general rule is that all criminal actions
commenced by the filing of a complaint or
information shall be prosecuted under the
direction and control of the prosecutor. However,
in the Municipal Trial Courts and Municipal Circuit
Trial Courts, if the prosecutor is not available, the
offended party, any peace officer, or other officer
charged with the enforcement of the law violated
may prosecute.
This authority ceases upon
actual intervention by a prosecutor or upon
elevation of the case to the RTC.
Can a prosecutor be compelled to file a
particular complaint or information?
No. A prosecutor is under no compulsion to file a
particular criminal information where he is not
convinced that he has evidence to support the
allegations thereof.
The exercise of such
judgment and discretion may generally not be
compelled by mandamus, except if the
prosecutor shows evident bias in filing the
information and refuses to include a co-accused
without justification.
But before filing for
mandamus to compel a fiscal to include another
co-accused in the information, the party must
first avail himself of other remedies such as the
filing of a motion for inclusion.
To whom should you appeal the decision
of the prosecutor?
The decision of the prosecutor may be modified
by the Secretary of Justice or in special cases by
the President of the Philippines.
Is the prosecutor required to be
physically present in the trial of a criminal
case?
According to People v. Beriales (1976 case),
he should be present. If he is not physically
present, it cannot be said that the prosecution
was under his direction and control.
But in People v. Malinao and Bravo v. CA, it
was held that the proceedings are valid even
without the physical presence of the Fiscal who
left the prosecution to the private prosecutor
under his supervision and control.
After the case is filed in court, to whom
should a motion to dismiss be addressed?

6
Once the information is filed in court, the court
acquires jurisdiction. Whatever disposition the
prosecutor may feel should be proper in the case
thereafter
should
be
addressed
for
the
consideration of the court, subject only to the
limitation that the court should not impair the
substantial rights of the accused or the right of
the people to due process.
Where should a motion for reinvestigation
be filed?
After a complaint or information has already been
filed in court, a motion for reinvestigation should
be addressed to the trial judge and to him alone.
If, after he has filed the case, the
prosecutor thinks that a prima facie case
exists, can he refuse to prosecute?
No, he cannot refuse to prosecute. He is obliged
by law to proceed and prosecute the criminal
action. He cannot impose his opinion on the
court.
What is the distinction between the
control by the prosecution and the control
by the court?
Before a case is filed in court, the prosecution
has control over the following:
1.
2.
3.
4.

What case to file

Whom to prosecute
The manner of prosecution
The right to withdraw the case before
arraignment even without notice and
hearing.

After a case is filed in court, the court has control

over the following:
1.
2.
3.
4.
5.

The suspension of arraignment

Reinvestigation
Prosecution by the prosecutor
Dismissal
Downgrading of the offense or dropping of
the accused even before plea

What are the limitations on the control by

the Court?
(SINNATRa)
1. Prosecution is entitled to Notice of hearing
2. The Court must Await the result of a
petition for review

7
3. The prosecutions stand to maintain
prosecution should be Respected by the
court
4. The ultimate
Test of
the courts
independence is where the prosecutor files
a motion to dismiss or withdraw the
information
5. The Court has authority to review the
Secretarys recommendation and reject if
it there is grave abuse of discretion.
6. To reject or grant a motion to dismiss, the
court must make its own Independent
assessment of the evidence.
7. Judgment is void if there is No
independent assessment and finding of
grave abuse of discretion.
What are the crimes that must be
prosecuted upon complaint of the offended
party?
1. Adultery and concubinage
2. Seduction,
abduction,
acts
of
lasciviousness
3. Defamation
which
consists
in
the
imputation of an offense mentioned above
What is a private crime?

Can the father file a complaint on behalf

of his daughter for concubinage?
No. The rule allowing the parents, grandparents,
and guardians to file a complaint on behalf of the
minor applies only to the offenses of seduction,
abduction, and acts of lasciviousness.
A
complaint for adultery or concubinage may be
filed only by the offended spouse.
If the offended party in abduction,
seduction, and acts of lasciviousness is of
age, can her parents file the complaint for
her?
No. If the offended party is already of age, she
has the exclusive right to file the complaint
unless she becomes incapacitated. The parents,
grandparents, and guardian only have exclusive,
successive authority to file the case if the
offended party is still a minor.
If the offended party dies during the
pendency of the case, is the criminal liability
of the accused extinguished?
No.

Private offenses are those which cannot be

prosecuted except upon complaint filed by the
aggrieved party. Strictly speaking, there is no
such thing as a private offense since all offenses
are an outrage against the State.
They are
denominated as private offenses only to give
deference to the offended party who may prefer
not to file the case instead of going through the
scandal of a public trial.
After a complaint for a private crime has
been filed in court, what is the effect of
pardon by the offended party?
The pardon by the offended party will not have
any effect on the prosecution of the offense.
Once a complaint has been filed in court,
jurisdiction over the offense will be acquired and
will continue to be exercised by the court until
termination of the case.
What is the meaning of the statement that
compliance with the rule is jurisdictional?
This means that the complaint filed by the
offended party is what starts the prosecution,
without which the courts cannot exercise their
jurisdiction. Compliance with the rule does not
confer jurisdiction because it is the law which
confers jurisdiction upon the courts.

X filed a sworn complaint for acts of

lasciviousness
before
the
prosecutor.
Before the prosecutor could file the case in
court, X died. Can the prosecutor still file
the information in court?
Yes. The desire of X to file the case is evident by
her filing of her sworn complaint with the
prosecutor.
An information for robbery with rape was
filed against X. X moved to dismiss the
information on the ground that there was no
complaint filed by the offended party.
Should the case be dismissed?
No. In robbery with rape, the complaint of the
offended party is not necessary since the offense
of robbery is not a private offense.
The
prosecution can be commenced without the
complaint of the offended party.
When is a complaint
deemed sufficient?

or

information

A complaint or information is sufficient if it

states:
1. the name of the accused

8
2. the designation of the offense given by
the statute
3. the acts or omissions complained of as
constituting the offense
4. the name of the offended party
5. the approximate date of the commission
of the offense
6. the place of the commission of the offense
When is the error in the name of the
accused not fatal to an information?
Error in the name of the accused will not nullify
the information if it contains sufficient description
of the person of the accused.
When should the error in the name or
identity be raised by the accused?
The error should be raised before arraignment, or
else it is deemed waived.
X was charged with homicide. Can he be
possibly be convicted of murder?
Yes.
If the recitals in the complaint or
information of the acts and omissions constituting
the offense actually allege murder, X can be
convicted of murder. This is because it is the
recital of facts and not the designation of the
offense that is controlling.
X was charged with estafa, but the recital
of facts actually alleges theft. Can X be
convicted of theft?
Yes, because it is the recital, not the designation
of the offense that is controlling.
X was charged with estafa, and the recital
of facts allege estafa. Can X be convicted of
theft?
No. The two crimes have elements that are
different from each other. To convict X of theft
under an information that alleges estafa would
violate his right to be informed of the nature and
cause of the accusation against him.
X was charged with rape committed
through force and intimidation. Can he be
convicted of rape where the woman is
deprived
of
reason
or
is
otherwise
unconscious?
No. Where the law distinguishes between two
cases of violation of its provision, the complaint
or information must specify under which of the
two cases the defendant is being charged.

In what case can an accused not be

convicted of a crime different from that
designated in the complaint or information
even if the recitals allege the commission of
the crime?
If it involves:
1. a change of the theory of the trial
2. requires of the defendant a different
defense
3. surprises the accused in any way
X was accused of illegal possession of
firearms, but the information did not allege
that X did not have any license to possess
the firearm. Is the information valid?
No. The absence of the license is an essential
element of the offense. Therefore, it should be
alleged in the complaint or information.
X was charged with illegal possession of
opium. X contends that the information was
invalid for failure to allege that he did not
have a prescription from a physician. Is X
correct?
No. The absence of the prescription is not an
essential element of the offense and is only a
matter of defense. It need not be alleged in the
information.

What are the offenses in which the

particular place where the offense was
committed is essential?
1. Violation of domicile
2. Penalty on the keeper, watchman, visitor
of opium den
3. Trespass to dwelling
4. Violation of election law (prohibiting the
carrying of a deadly weapon within a 30meter radius of polling places)
What are the offenses in which the time
of the commission of the offense is
essential?
1. Infanticide
2. Violation of Sunday Statutes (Election
Law)
3. Abortion
In what case is the name of the offended
party dispensable?

9
In offenses against property, the name of the
offended party may be dispensed with as long as
the object taken or destroyed is particularly
described to property identify the offense.
In what cases is the name of the offended
party indispensable?
Slander, robbery with violence or intimidation.
What is the rule on duplicity of offenses?
A complaint or information must charge only
offense, except when the law provides only
punishment for various offenses (compound
complex crimes under Art. 48 of the RPC
special complex crimes).

one
one
and
and

What is the effect of the failure of the

accused
to
object
to
a
duplicitous
information?
If the accused fails to object before arraignment,
the right is deemed waived, and he may be
convicted of as many offenses as there are
charged.
X fired his gun once, but the bullet killed
two persons.
He was charged with two
counts of homicide in one information. Can
he be convicted under that information?
Yes. It falls under the exception to the rule. This
is a compound crime in which one act results in
two or more grave or less grave felonies. The
law provides only one penalty for the two
offenses.
X was charged with both robbery and
estafa in one information.
Can he be
convicted of both offenses?
It depends.
If he objects to the duplicitous
information before arraignment, he cannot be
convicted under the information. But if he fails to
object before arraignment, he can be convicted
of as many offenses as there are in the
information.
What is the principle of absorption?
In cases of rebellion, other crimes committed in
the course of the crime are deemed absorbed in
the crime of rebellion either as a means
necessary for its commission or as an unintended
effect of rebellion. They cannot be charged as
separate offenses in themselves. The exception
is when the common crimes are committed

without any political motivation. In such a case,

they will not be absorbed by rebellion.
If homicide or murder is committed with
the use of an unlicensed firearm, how many
offenses are there?
There is only one offense murder or homicide
aggravated by the use of unlicensed firearm.
This is by special provision of RA 8294.
(Dissenting opinion of J. Sabio How can you
complex when one is an RPC offense/malum in se
and the other is a violation of a special
law/malum prohibitum?)
X was speeding on a highway when his
car collided with another car. The other car
was totally wrecked and the driver of the
other car suffered serious physical injuries.
How many informations or complaints
should be filed against X?
Only one information should be filed for serious
physical injuries and damage to property through
reckless imprudence. The information against X
cannot be split into two because there was only
one negligent act resulting in serious physical
injuries and damage to property.
Same case, but the injuries suffered by
the driver were only slight physical injuries.
How many informations should be filed?
Two informations one for the slight physical
injuries and the other for damage to property.
Light felonies cannot be complexed.
When can a complaint or information be
amended?
BEFORE PLEA, a complaint or information can be
amended in form or in substance without leave of
court, except if the amendment will downgrade
the offense or drop an accused from the
complaint or information. In such a case, the
following requisites must be observed:
1. must be made upon motion of the
prosecutor
2. with notice to the offended party
3. with leave of court
4. the court must state its reason in
resolving the motion
5. copies of the resolution should be
furnished all parties, expecially the
offended party

AFTER PLEA, only formal amendments may be

made only with leave of court and when it can be
done without causing prejudice to the rights of
the accused.
When can a complaint or information be
substituted?
A complaint or information may be substituted if
at any time before judgment, it appears that a
mistake has been made in charging the proper
offense, and the accused cannot be convicted of
the offense charged or of any other offense
necessarily included therein, provided that he will
not be placed in double jeopardy.
What are the distinctions
amendment and substitution?

between

1. Amendment may involve either formal or

substantial changes, while substitution
necessarily involves a substantial change.
2. Amendment before plea can be effected
without leave of court, but substitution is
always done with leave of court since it
involves the dismissal of the original
complaint.
3. Where the amendment is only as to form,
there is no need for a new preliminary
investigation or plea;
in substitution,
another preliminary investigation and plea
is required.
4. An amended information refers to the
same offense charged or to one which
necessarily includes or is necessarily
included in the original charge, hence
substantial amendments after plea cannot
be made over the objection of the
accused. Substitution requires that the
new information is for a different offense
which does not include or is not
necessarily included in the original charge.
When are the rights of the accused
prejudiced by an amendment?

10
After plea, substantial amendments are
prohibited. These are amendments involving the
recital of facts constituting the offense and
determinative of the jurisdiction of the court. All
other matters are merely of form.
Is an additional allegation of habitual
delinquency and recidivism a substantial
amendment?
No. These allegations only relate to the range of
the imposable penalty but not the nature of the
offense.
Is an additional allegation of conspiracy a
substantial amendment?
Yes because it changes the theory of the defense.
It makes the accused liable not only for his own
acts but also for those of his co-conspirators.
(Old J. Sabio answer)
The new answer is: No, it is not a substantial
amendment in the following example: X is
charged with murder as principal. Later, the
complaint is amended to include two other
persons who allegedly conspired with X. Can X
invoke double jeopardy on the ground that the
amendment is substantial? No.
The
amendment is merely a formal amendment
because it does not prejudice the rights of X, who
was charged as a principal to begin with.
Is a change in the items stolen by the
accused a substantial amendment?
Yes because it affects the essence of the imputed
crime and would deprive the accused of the
opportunity to meet all the allegations in
preparation of his defense.
Is a change in the nature of the offense
due to supervening event a substantial
amendment?
No, it is merely a formal amendment.

1. When a defense which he had under the

original information would no longer be
available
2. When any evidence which he had under
the original information would no longer
be available
3. When any evidence which he had under
the original information would not longer
be applicable to the amended information
What are substantial amendments?

Can the court order the dismissal of the

original complaint before a new one is filed
in substitution?
No. The court will not order the dismissal until
the new information is filed.
Where should
instituted?

criminal

action

be

a. In the court of the municipality or territory

where the offense was committed or where any
of its essential ingredients occurred (Exception:
Sandiganbayan cases)
b. If committed in a train, aircraft, or other public
or private vehicle: in the court of any
municipality or territory where the vehicle passed
during its trip, including the place of departure or
arrival
c. If committed on board a vessel in the course
of its voyage: in the court of the first port of
entry or of any municipality or territory where
the vessel passed during the voyage, subject to
the generally accepted principles of international
law
d. Crimes committed outside the Phil but
punishable under Article 2 of the RPC: any court
where the action is first filed.
What
offense?

is

continuing

or

transitory

11
d. If the offended party is a public officer
whose office is outside Manila, the action may be
filed in the RTC of the province or city where he
held office at the time of the commission of the
offense.
Can the offended party intervene in the
prosecution of the criminal action?
Yes, except if he has waived, has reserved his
right, or has already instituted the criminal
action. The reason for this rule is because of
Article 100 of the RPC which provides that every
person criminally liable shall also be civilly liable
and also because there are certain offenses which
cannot be prosecuted except upon complaint of
the offended party.
Do the offended parties have the right to
move for the dismissal of a case?
No. The right belongs only to the government
prosecutor who is the representative of the
plaintiff.

Transitory offenses are crimes where some acts

material and essential to the crimes and requisite
to their commission occur in one municipality or
territory and some in another.
Continuing
offenses are consummated in one place, yet by
the nature of the offense, the violation of the law
is deemed continuing.
Examples are estafa,
abduction,
malversation,
libel,
kidnapping,
violation of BP22.

Can the offended party file a civil action

for certiorari in his own name if the RTC
dismisses an information?

How do you determine jurisdiction over a

continuing crime?

RULE 111 PROSECUTION OF CIVIL ACTION

Yes.
In case of grave abuse of discretion
amounting to lack of jurisdiction, the petition
may be filed by the offended party because the
offended party has an interest in the civil aspect
of the case.

What is the general rule?

The courts of the territories where the essential
ingredients of the crime took place have
concurrent jurisdiction. But the court which first
acquires jurisdiction excludes the other courts.
What are the rules on venue in libel
cases?
a. The criminal action for libel may be filed in the
RTC of the province or the city where the libelous
article is printed and first published.
b. If the offended party is a private individual,
the criminal action may also be filed in the RTC of
the province where he actually resided at the
time of the commission of the offense.
c. If the offended party is a public officer whose
office is in Manila at the time of the commission
of the offense, the criminal action may be filed in
the RTC of Manila.

The general rule is when a criminal action is

instituted, the civil action for the recovery of the
civil liability arising from the offense charged
under Article 100 of the RPC shall be deemed
instituted with the criminal action.
What are the exceptions?
The civil action is not deemed instituted in the
following cases:
1. When the offended party has waived the
civil action
2. When the offended party has reserved the
right to institute it separately
3. When the offended party has instituted
the civil action prior to the institution of
the criminal action

12
What is the civil action that is deemed
instituted with the criminal action?
Only the civil action for the recovery of civil
liability arising from the offense under Article 100
of the RPC, not the independent civil actions
under Article 32, 33, 34 and 2176 of the Civil
Code.
What is the dual concept of civil liability?
This means that civil liability may arise from
crimes or from quasi-delicts. Thus, a negligent
act causing damage may produce two kinds of
civil liability one arising from crime and another
from quasi-delict. The only limitation is that the
offended party may not recover twice from the
same act.
What are the differences between a crime
and a quasi-delict?
1. Crimes affect public interest, while quasidelicts are only of private concern
2. The RPC punishes or corrects the criminal
act, while the Civil Code merely repairs
the damage by means of indemnification
3. Crimes are punished only if there is a law
providing for their punishment, while
quasi-delicts include all acts where fault or
negligence intervenes. Therefore, quasidelict is broader in scope.

The reservation should be made before the

prosecution presents its evidence and under
circumstances affording the offended party a
reasonable opportunity to make such reservation.
What is the reason for the rule requiring
reservation?
The reason is to prevent double recovery from
the same act or omission.
Can the accused file a counterclaim in the
criminal case?
No.
In a BP 22 case, can the offended party
make a reservation of the civil action?
No.
The criminal action shall be deemed to
include the civil action, and the offended party is
not allowed to make the reservation. The actual
damages and the filing fees shall be equivalent to
the value of the check.
When is
suspended?

the

separate

civil

action

After the criminal action has been commenced,

the separate civil action arising therefrom cannot
be instituted until final judgment has been
entered in the criminal action.

What constitutes civil liability?

According to Article 104 of the RPC, it constitutes
restitution, reparation, and indemnification for
consequential damages.
What is the basis for the broader concept
of civil liability?
The broader concept of civil liability means that
every person criminally liable is also civilly liable.
This is because in a criminal offense, there are
two offended parties the state and the private
offended party.
If the complaint does not contain an
allegation of damages, is the offender still
liable for them?
Yes because every person criminally liable is also
civilly liable. This is subject to the exception
when the offended party has waived or has
reserved the right to institute the civil action
separately.
When should the reservation be made?

If the criminal action is filed after the civil action

was instituted, the civil action shall be suspended
in whatever stage it may be found before
judgment on the merits. The suspension shall
last until final judgment is rendered in the
criminal action.
Nonetheless, the civil action may be consolidated
with the criminal action at any time before
judgment on the merits upon motion of the
offended party with the court trying the criminal
action. The evidence presented at the civil action
shall be deemed reproduced in the criminal
action without prejudice to the right of the
prosecution to cross-examine the witness
presented by the offended party in the criminal
case and of the parties to present additional
evidence. The consolidated criminal actions shall
be tried and decided jointly.
Exception: When there is a prejudicial question in
a previously filed civil action, it should be
resolved first.

 Are the independent civil actions also

deemed suspended with the filing of the
criminal action?
No. Only the civil action arising from the crime
under Article 100 is suspended. The independent
civil actions are not suspended and may continue
even if the criminal action has been instituted.
However, the offended party may not recover
twice from the same act. He should only get the
bigger award.
What is the effect of an acquittal on the
civil action?
The general rule is the civil action is not
necessarily extinguished by the acquittal of the
accused. Even if the accused is acquitted, the
court can still award civil liability in the following
cases:
1. When the acquittal is based on reasonable
doubt
2. When there is a declaration in the decision
that the liability of the accused is only civil
3. When the civil liability is not derived from
or based on the criminal act of which the
accused is acquitted.
However, if the decision contains a finding that
the act from which the civil liability may arise
does not exist, the civil liability is extinguished.
Can you compel a judge by mandamus to
award civil damages?
Yes because every person criminally liable is also
civilly liable and also because even if the accused
is acquitted, there are cases when he is still
civilly liable.
What is the reason for allowing the civil
liability to subsist in spite of the acquittal of
the accused?
This is because the parties in the criminal and
civil action are different in the criminal action,
the party is the state, while in the civil action, the
party is the private offended party. Also, the two
actions required different quantum of evidence.
The criminal action requires proof of guilt beyond
reasonable doubt, while the civil action requires
mere preponderance of evidence.

13
They may proceed independently of the
criminal action and shall require only a
preponderance of evidence.
What is the effect of the death of the
accused on the criminal and civil actions?
If the accused dies after arraignment and during
the pendency of the criminal action, both the
criminal and civil liability arising from the crime
shall be extinguished. However, the independent
civil actions may be filed against the estate of the
accused after proper substitution, and the heirs
of the accused may also be substituted for the
deceased.
If the accused dies before arraignment, the case
shall be dismissed, without prejudice to any civil
action that the offended party may file against
the estate of the deceased.
When the defendant is absolved of civil
liability in a civil action, can a criminal
action still be filed against him?
Yes. While every person criminally liable is also
civilly liable, the converse is not true. Therefore,
even if the defendant is absolved of civil liability
in a civil action, a criminal action can still be filed
against him. Besides, the state is a party in a
criminal action, while only the private offended
party is a party in the civil action. Moreover, the
quantum of evidence in the civil action is only
preponderance of evidence, while that required in
the criminal action is proof beyond reasonable
doubt.
What is a prejudicial question?
A prejudicial question is one based on a fact
separate and distinct from the crime but is so
intimately related to it that it determines the guilt
or innocence of the accused.
What are the elements of a prejudicial
question?
1. The previously filed civil action involves an
issue which is similar or is intimately
related with an issue raised in the
subsequent criminal action
2. The resolution of the issue will determine
whether or not the criminal action may
proceed.

What are the independent civil actions?

The independent civil actions are those provided
in Articles 32, 33, 34, and 2176 of the Civil Code.

When is an action for annulment of

marriage prejudicial to a bigamy case?

14
An action for annulment of marriage is prejudicial
to a bigamy case only if the accused in the
bigamy charge is also the one asking for
annulment of the second (bigamous) marriage
based on vitiation of consent. This is because in
such a case, if the court declares that the partys
consent was indeed vitiated and annuls the
marriage, then it would also mean that the party
did not willingly commit the crime of bigamy. It
would thus be determinative of the guilt or
innocence of the accused.
RULE 112 PRELIMINARY INVESTIGATION
What is preliminary investigation?
Preliminary investigation is an inquiry or
proceeding to determine whether there is
sufficient ground to engender a well-founded
belief that a crime has been committed and the
respondent is probably guilty thereof, and should
be held for trial.
When is it required?
Before a complaint or information is filed,
preliminary investigation is required for all
offenses punishable by imprisonment of at least 4
years, 2 months, and 1 day, regardless of the
fine, except if the accused was arrested by virtue
of a lawful arrest without warrant. In such a
case, the complaint or information may be filed
without a preliminary investigation unless the
accused asks for a preliminary investigation and
waives his rights under Article 125 of the RPC.
What is the purpose of a preliminary
investigation?
1. To determine if there is sufficient ground
to engender a well-founded belief that a
crime has been committed and the
respondent is probably guilty thereof, and
should be held for trial.
2. To protect the accused from the
inconvenience, expense, and burden of
defending himself in a formal trial unless
the reasonable probability of his guilt shall
have been first ascertained in a fairly
summary proceeding by a competent
officer.
3. To secure the innocent against hasty,
malicious and oppressive prosecution, and
to protect him from an open and public
accusation of a crime, from the trouble,
expenses and anxiety of a public trial.

4. To protect the state from having to

conduct useless and expensive trials.
What is the
investigation?

scope

of

preliminary

Preliminary investigation is merely inquisitorial

and it is often the only means of discovering
whether the offense has been committed and the
persons responsible for it to enable the fiscal to
prepare his complaint or information. It is not a
trial on the merits and has no purpose but to
determine whether there is probable cause to
believe that an offense has been committed and
that the accused is probably guilty of it. It does
not place the accused in jeopardy.
Is the right to a preliminary investigation
a fundamental right?
No, it is a statutory right and may be waived
expressly or by silence. It is also not an element
of due process, unless it is expressly granted by
law.
Can an accused demand the right to
confront and cross-examine his witnesses
during the preliminary investigation?
No. The preliminary investigation is not part of
the trial.
It is summary and inquisitorial in
nature, and its function is not to determine the
guilt of the accused but merely to determine the
existence of probable cause.
Is the lack of a preliminary investigation a
ground for dismissing a complaint?
No. The absence of a preliminary investigation
does not affect the jurisdiction of the court but
merely the regularity of the proceedings. The
court cannot dismiss the complaint on this
ground, and it should instead conduct the
investigation or order the fiscal or lower court to
do it.
What is the effect of the absence of a
certification that a preliminary investigation
was conducted?
It is of no consequence. What is important is
that there was actually an investigation, that the
accused was informed thereof and was allowed to
present controverting evidence.
When should the right to preliminary
investigation be invoked?

The accused should invoke it before plea, or else,

it is deemed waived.
What if the court denies the invocation of
the right to a preliminary investigation,
what is the remedy of the accused?
He must immediately appeal it to the appellate
court. He cannot later raise the issue for the first
time on appeal.
If the complaint or information is
amended,
should
a
new
preliminary
investigation be conducted?
No.
If the complaint or information is
substituted, should a new preliminary
investigation be conducted?
Yes.

Who
may
investigation?

conduct

preliminary

1. Provincial or city prosecutors and their

assistants
2. Judges of the MTCs
3. National and Regional State Presecutors
4. Comelec with respect to election offenses
5. Ombudsman
with
respect
to
Sandiganbayan
offenses
and
other
offenses committed by public officers
6. PCGG with respect to ill-gotten wealth
cases
Can RTC judges conduct a preliminary
investigation?
No. Although this should not be confused with
the authority of the RTC to conduct an
examination for the purpose of determining
probable cause when issuing a warrant of arrest.
What is the procedure in conducting a
preliminary investigation?
1. The complaint shall state the address of
the respondent and shall be accompanied
by the affidavits of the complainants and
his witnesses as well as other documents
to establish probable cause. The affidavits
must be subscribed and sworn before the
prosecutor
or
government
official
authorized to administer oath or notary
public.

15
2. Within 10 days from the filing of the
complaint, the investigating officer shall
either:
a. dismiss it if he finds no ground to
continue the investigation; or
b. issue
a
subpoena
to
the
respondent accompanied by the
complaint and affidavits.
The respondent shall have the
right to examine the evidence, etc,
etc.
3. Within 10 days from receipt of the
subpoena, the respondent shall submit his
counter-affidavit, the affidavits of his
witnesses, and other documents in his
defense. Affidavits should also be sworn
and subscribed. The respondent cannot
file a motion to dismiss in lieu of a
counter-affidavit.
4. If the respondent cannot be subpoenaed
or if he fails to file his counter-affidavit
within 10 days, the investigating officer
shall resolve the complaint based on the
evidence submitted by the complainant.
5. If there are facts and issued which need to
be clarified, the investigating officer may
set a hearing. The parties can be present,
but they cannot cross-examine.
The
hearing shall be held within 10 days from
the submission of the counter-affidavits or
from the expiration of the period of their
submission. It shall be terminated within
5 days.
6. Within 10 days from the termination of
the investigation, the investigating officer
shall determine whether or not there is
probable cause to hold the respondent for
trial.
Is a preliminary investigation a judicial
proceeding?
Yes because there is an opportunity to be heard
and the production and weighing of evidence
upon which a decision is rendered. Since it is a
judicial proceeding, the requirement of due
process in judicial proceedings is also required in
preliminary investigations.
What is the difference between criminal
investigation and preliminary investigation?
Criminal
investigation
is
a
fact-finding
investigation carried out by law-enforcement
officers for the purpose of determining whether
they should file a complaint for preliminary

investigation.
Preliminary investigation is
conducted for the purpose of determining if there
is probable cause to hold a person for trial.
What is probable cause?
Probable cause is the existence of such facts and
circumstances as would excite the belief in a
reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted.
Is the presence of counsel in
preliminary investigation mandatory?

16
city prosecutor or chief state prosecutor
or the Ombudsman.
5. If
the
investigating
prosecutor
recommends
the
dismissal
of
the
complaint, but his recommendation is
disapproved by the provincial or city
prosecutor or chief state prosecutor or
Ombudsman on the ground that probable
cause exists, the latter may either:
a. by himself, file the information; or
b. direct another assistant prosecutor
to file the information

the

No.
Preliminary investigation is a summary
proceeding and is merely inquisitorial in nature.
The accused cannot yet invoke the full exercise of
his rights.
How does the investigating prosecutor
resolve the findings after preliminary
investigation?
1. If he finds probable cause to hold the
respondent for trial, he shall prepare the
resolution and certify under oath in the
information that:
a. he or an authorized officer has
personally
examined
the
complainant and his witnesses;
b. that there is reasonable ground to
believe that a crime has been
committed and that the accused is
probably guilty thereof;
c. that the accused was informed of
the complaint and of the evidence
against him;
d. that he was given an opportunity
to submit controverting evidence.
2. If he finds no probable cause, he shall
recommend
the
dismissal
of
the
complaint.
3. Within 5 days from his resolution, he shall
forward the record of the case to the
provincial or city prosecutor of chief state
prosecutor of the Ombudsman. They shall
act on the resolution within 10 days from
receipt and shall immediately inform the
parties of such action.
4. No complaint of information may be filed
or
dismissed
by
an
investigating
prosecutor without the prior written
authority or approval of the provincial or

without need for a new preliminary

investigation.
6. The Secretary of Justice may, upon
petition by a proper party or by itself,
reverse or modify the resolution of the
provincial or city prosecutor, the chief
state prosecutor, or the ombudsman. In
such a case, he shall direct the prosecutor
concerned to either file the information
without need for a new preliminary
investigation or to dismiss or move for its
dismissal if already filed in court.
If there was no preliminary investigation
conducted, what is the remedy of the
accused?
(RICA P)
1.
2.
3.
4.
5.

Refuse to enter plea

Insist on a preliminary investigation
File certiorari if refused
Raise it as an error on appeal
File a petition for prohibition

What should the Secretary of Justice do if

an information that has already been filed in
court is appealed to him?
He should, as far as practicable, refrain from
entertaining the appeal. The matter should be
left to the determination of the Court.
If the Secretary of Justice gives due
course to the appeal, what should the trial
judge do?
He should suspend proceedings and defer
arraignment pending the resolution of the appeal.
Is the determination of probable cause a
judicial or executive function?
It depends.
If it is made in a preliminary
investigation for the purpose of determining

whether there is reasonable ground to believe

that the accused has committed the offense and
should be held for trial, it is an executive
function. If it is made for the issuance of a
warrant of arrest by a judge, it is a judicial
function.
Can the accused file a motion to quash
based on insufficiency of evidence?
No. He cannot pre-empt trial by filing a motion
to quash on the ground of insufficiency of
evidence. Whether the function of determining
probable cause has been correctly discharged by
the prosecutor is a matter that the trial court
itself does not and may not pass upon.
Is the finding of a judge that probable
cause exists for the purpose of issuing a
warrant of arrest subject to judicial review?
No. It would be asking the court to examine and
assess such evidence as has been submitted by
the parties before trial and on the basis thereof,
make a conclusion as whether or not it suffices to
establish the guilt of the accused.
What is the remedy of the complainant if
the Secretary of Justice does not allow the
filing of a criminal complaint against the
accused
because
of
insufficiency
of
evidence?
He can file a civil action for damages against the
offender based on Article 35 of the Civil Code.
This would require a mere preponderance of
evidence.
What are the remedies of a party against
whom a warrant of arrest has been issued?
1.
2.
3.
4.
5.

post bail
ask for reinvestigation
petition for review
motion to quash the information
if denied, appeal the judgment after trial

(no certiorari)
What is the procedure in resolving a
complaint
when
the
preliminary
investigation is conducted by a judge?
1. Within 10 days after the termination of
the
preliminary
investigation,
the
investigating judge shall transmit the
resolution of the case to the provincial or

17
city prosecutor, or to the Ombudsman
for appropriate action.
2. The resolution shall state the findings of
fact and law supporting his action
together with the record of the case which
shall include:
a. the warrant if the arrest is by
virtue of a warrant
b. the affidavits, counter-affidavits,
and supporting evidence
c. the undertaking or bail and the
order of release
d. the transcripts of the proceedings
e. the order of cancellation of the bail
bond if the resolution is for the
dismissal of the complaint
3. Within 30 days from the receipt of the
records, the provincial or city prosecutor
or the Ombudsman shall review the
resolution of the judge.
4. They shall act on the resolution, expressly
and clearly stating the facts and the law
on which it is based.
5. The parties shall be furnished with copies
thereof.
6. They shall order the release of an accused
who is detained if no probable cause is
found against him.
What happens if the judge fails to resolve
the case within 10 days from the
termination of the investigation?
This constitutes dereliction of duty and is a
ground for dismissal of the judge.

What
is
the
difference
between
preliminary investigation conducted by the
prosecutor and one conducted by the judge?
The prosecutor is not bound by the designation of
the offense in the complaint. After preliminary
investigation, he may file any case as warranted
by the facts.
The judge cannot change the
charge in the complaint but must make a finding
on whether or not the crime charged has been
committed.
If the investigating judge did not issue a
warrant for the arrest of the accused during
the preliminary investigation, what is the
remedy of the prosecutor if he believes that
the accused should be immediately placed
under custody?

18
He should file the information in court, so that
the RTC may issue the warrant of arrest. He
should not file for mandamus because that could
take two years to resolve.
What is a warrant of arrest?
A warrant of arrest is a legal process issued by
competent authority, directing the arrest of a
person or persons upon grounds stated therein.
When may a warrant of arrest be issued?
By the RTC
1. Within 10 days from the filing of the
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence.
2. He may immediately dismiss the case if
the evidence fails to establish probable
cause.
3. If he finds probable cause, he shall issue a
warrant of arrest or a commitment order if
the accused has already been arrested by
virtue of a warrant issued by the MTC
judge who conducted the preliminary
investigation or if he was arrested by
virtue of a lawful arrest without warrant.
4. In case of doubt on the existence of
probable cause, the judge may order the
prosecutor to present additional evidence
within 5 days from notice and the issue
must be resolved within 30 days from the
filing of the complaint or information.
By the MTC
1. If the preliminary investigation was
conducted
by
a
prosecutor,
same
procedure as above
2. If the preliminary investigation was
conducted by the MTC judge and his
findings are affirmed by the prosecutor,
and the corresponding information is filed,
he shall issue a warrant of arrest.
3. However,
without
waiting
for
the
conclusion of the investigation, he may
issue a warrant of arrest if he finds after:
a. an examination in writing and
under oath of the complainant and
his witnesses
b. in the form of searching questions
and answers that probable cause
exists AND that there is a necessity
of placing the accused under

immediate custody in order not

to frustrate the ends of justice.
What are the kinds of offenses that may
be filed with the MTC for preliminary
investigation?
1. Those which are cognizable by the RTC
2. Those cognizable by the MTC where the
penalty is at least 4 years, 2 months, and
1 day regardless of the fine
When is
necessary?

warrant

of

arrest

not

1. When the accused is already under

detention issued by the MTC
2. When the accused was arrested by virtue
of a lawful arrest without warrant
3. When the penalty is a fine only
Are John Doe warrants valid?
Generally, John Doe warrants are void
because they violate the constitutional provision
that requires that warrants of arrest should
particularly describe the person or persons to be
arrested. But if there is sufficient description to
identify the person to be arrested, then the
warrant is valid.
What are the principles governing the
finding of probable cause for the issuance of
a warrant of arrest?
1. There is a distinction between the
objective of determining probable cause
by the prosecutor and by the judge. The
prosecutor determines it for the purpose
of filing a complaint or information, while
the judge determines it for the purpose of
issuing a warrant of arrest whether
there is a necessity of placing him under
immediate custody in order not to
frustrate the ends of justice.
2. Since their objectives are different, the
judge should not rely solely on the report
of the prosecutor in finding probable
cause to justify the issuance of a warrant
of arrest.
The judge must decide
independently and must have supporting
evidence other than the prosecutors bare
report.
3. It is not required that the complete or
entire records of the case during the
preliminary investigation be submitted to
and examined by the judge. He must
have sufficient supporting documents

19
upon which to make his independent
judgment.
How should the complaint or information
be filed when the accused is lawfully
arrested without warrant?
The complaint or information may be filed by a
prosecutor without need for a preliminary
investigation provided an inquest proceeding has
been conducted in accordance with existing rules.
In the absence of an inquest prosecutor, the
offended party or any peace officer may file the
complaint directly in court on the basis of the
affidavit of the offended party or peace officer.
What is the remedy of the person arrested
without warrant if he wants a preliminary
investigation?
Before the complaint or information is filed, he
may ask for one provided that he signs a waiver
of his rights under Article 125 of the RPC in the
presence of counsel. He may still apply for bail in
spite of the waiver. The investigation must be
terminated within 15 days.
After the complaint of information is filed but
before arraignment, the accused may, within 5
days from the time he learns of his filing, ask for
a preliminary investigation.
What is an inquest?

What is the procedure in cases not

requiring a preliminary investigation?
1. If filed with the prosecutor, the prosecutor
shall act on the complaint based on the
affidavits and other supporting documents
submitted by the complainant within 10
days from its filing.
2. If filed with the MTC:
a. If within 10 days from the filing of
the complaint or information, the
judge finds no probable cause after
personally examining the evidence
in writing and under oath of the
complainant and his witnesses in
the form of searching questions
and answers, he shall dismiss the
complaint or information.
b. He may require the submission or
additional evidence, within 10 days
from notice. If he still finds no
probable cause, he shall dismiss
the case.
c. If he finds probable cause, he shall
issue a warrant of arrest or a
commitment order and hold him
for trial. If he thinks that there is
no necessity for placing the
accused under custody, he may
issue summons instead.
RULE 113 ARREST

An inquest is an informal and summary

investigation conducted by a public prosecutor in
a criminal case involving persons arrested and
detained without the benefit of a warrant of
arrest issued by the court for the purpose of
determining whether said persons should remain
under custody and correspondingly charged in
court.

What is arrest?
Arrest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense.
How is an arrest made?

What are the guidelines to safeguard the

rights of an accused who has been arrested
without a warrant?

Arrest is made by an actual restraint of the

person to be arrested or by his submission to the
custody of the person making the arrest.

1. The arresting officer must bring the

arrestee before the inquest fiscal to
determine whether the person should
remain in custody and charged in court or
if he should be released for lack of
evidence or for further investigation.
2. The custodial investigation report shall be
reduced to writing, and it should be read
and adequately explained to the arrestee
by his counsel in the language or dialect
known to him.

What does it mean when jurisprudence

says that the officer, in making the arrest,
must stand his ground?
It means that the officer may use such force as is
reasonably necessary to effect the arrest.
What is the duty of the arresting officer
who arrests a person?

He must deliver the person immediately to the

nearest jail or police station.
Within what period must a warrant of
arrest be served?
There is no time period. A warrant of arrest is
valid until the arrest is effected or until it is lifted.
The head of the office to whom the warrant was
delivered must cause it to be executed within 10
days from its receipt, and the officer to whom it
is assigned for execution must make a report to
the judge who issued it within 10 days from the
expiration of the period. If he fails to execute it,
he should state the reasons therefor.
When is an arrest without warrant lawful?

20
He can confiscate them, without prejudice to
his liability for violation of domicile. He cannot
use them as evidence because the seizure cannot
be justified under the plain view doctrine, there
being no previous valid intrusion.
When should an arrest be made?
It can be made on any day and at any time of the
day and night.
Can an officer arrest a person against
whom a warrant has been issued even if he
does not have the warrant with him?
Yes, but after the arrest, if the person arrested
requires, it must be shown to him as soon as
practicable.

A peace officer or private person may arrest

without warrant:
1. When in his presence, the person to be
arrested has committed, is actually
committing, or is about to commit an
offense;
2. When
an
offense
has
just
been
committed, and he has probable cause
based on personal knowledge of facts and
circumstances that the person to be
arrested has committed it; and
3. When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending or has escaped
while
being
transferred
from
one
confinement to another.

SECTION 14 BAIL
What is bail?
Bail is the security given for the release of a
person in custody of the law, furnished by him or
a bondsman, to guarantee his appearance before
any court as required.
What are the forms of bail?
Bail may be in the form of:
1.
2.
3.
4.

corporate surety
property bond
cash deposit
recognizance

What is recognizance?
A police officer was chasing a person who
had just committed an offense. The person
went inside a house, so the police officer
followed.
Inside the house, the police
officer saw drugs lying around.
Can he
confiscate the drugs? Can he use them as
evidence?

Recognizance is an obligation of record, entered

into before a court or magistrate duly authorized
to take it, with the condition to do some
particular act, the most usual condition in
criminal cases being the appearance of the
accused for trial.

Yes. The plain view doctrine is applicable in this

case because there was a prior valid intrusion,
the police officer inadvertently discovered the
evidence, he had a right to be there, and the
evidence was immediately apparent.

When is bail a matter of right and when is

it a matter of discretion?

What if the officer merely peeks through

the window of the house and sees the drugs
can he confiscate them? Can he use them
as evidence?

In the RTC, it is a matter of right before

conviction, except for offenses punishable by
death, reclusion perpetua, or life sentence and
the evidence of guilt is strong, in which case it is
discretionary. After conviction, bail is a matter of
discretion regardless of the offense.
The

In the MTC, it is a matter of right before or after

conviction, regardless of the offense.

application for bail may be filed and acted upon

by the trial court as long as the original record of
the case has not been transmitted to the
appellate court. However, if the decision of the
trial court changed the nature of the offense from
non-bailable to bailable, the application should be
addressed and resolved by the appellate court.
When can the prosecution move for the
cancellation or denial of bail of the accused?
If the penalty imposed by the trial court is
imprisonment greater than 6 years, the
prosecution may move for denial or cancellation
of the bail of the accused, with notice to the
accused, upon showing of the following
circumstances:
1. That he is a recidivist, quasi-recidivist,
habitual delinquent, or committed the
offense with the aggravating circumstance
of reiteracion.
2. The he has previously escaped from legal
confinement, evaded sentence, or violated
the conditions of his bail without valid
justification.
3. That he committed the offense while on
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.
When is a bail hearing necessary?
Bail hearing is mandatory when bail is a matter
of discretion.
It is incumbent upon the
prosecution to show that the evidence of guilt is
strong. Even if the prosecution is absent or
refuses to present evidence, the court cannot
grant bail without conducting a hearing. The
court must first be convinced that the evidence
does not warrant the denial of bail.
What is required of the judge who denies
an application for bail?
The order should contain a summary of the
evidence presented and the reason for the denial,
otherwise it shall be void. This is in order to
safeguard the constitutional right to presumption
of innocence and also because there is a need for
clear grounds before a person can be denied of
his liberty.

21
If there is a likelihood that the accused
would jump bail, what should the court do?
1. Increase the amount of bail
2. Require periodic reports of the accused to
court
3. Warn him that the trial may proceed in
absentia
What is a capital offense?
A capital offense is an offense which, under the
law existing at the time of its commission and of
the application for admission to bail, may be
punished with death.
What are the duties of the trial judge in
case an application for bail is filed?
1. Notify the prosecutor of the hearing or
require him to submit his recommendation
2. Conduct a hearing
3. Decide whether the evidence of guilt is
strong based on the summary of evidence
of the prosecution
4. If the guilt of the accused is not strong,
discharge the accused upon the approval
of the bailbond. If evidence of guilt is
strong, the petition should be denied.
What are the guidelines in setting the
amount of bail?
1.
2.
3.
4.
5.
6.
7.

Financial ability of the accused

Nature and circumstances of the offense
Penalty for the offense
Character and reputation of the accused
Age and health of the accused
Weight of evidence against the accused
Probability of the accused appearing at
the trial
8. Forfeiture of other bail
9. The fact that he was a fugitive from the
law when arrested
10. Pendency of other cases where the
accused is on bail
Where should bail be filed?
It may be filed with the court where the case is
pending. In the absence of the judge thereof,
bail may be filed with any RTC or MTC judge in
the province, city, or municipality. If the accused
is arrested in a province, city, or municipality
other than where the case is pending, bail may
also be filed with and RTC of said place, or if no
judge is available, with any MTC judge therein.

22
But where bail is a matter of discretion or where
the
accused
seeks
to
be
released
on
recognizance, bail may only be filed in the court
where the case is pending.
Any person in custody who is not yet charged
may apply for bail with any court in the province,
city or municipality where he is held.
What is the remedy of the accused if he is
denied bail?
He should file a special civil action in the CA, not
the SC within 60 days.
Does an application for bail bar the
accused from questioning the validity or his
arrest, the validity of the warrant, or the
manner of conducting the preliminary
investigation?
No, provided that he raises these questions
before plea.
RULE 115 RIGHTS OF THE ACCUSED
What are the rights of the accused in
criminal prosecutions?
1. To be presumed innocent until the
contrary is proved beyond reasonable
doubt;
2. To be informed of the nature and cause of
the accusation against him;
3. To be present and defend in person and
by counsel at every stage of the
proceedings,
from
arraignment
to
promulgation of judgment;
4. To testify as a witness in his own behalf
but subject to cross-examination on
matters covered by direct examination;
5. To be exempt from being compelled to be
a witness against himself;
6. To confront and cross-examine the
witnesses against him at the trial;
7. To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in his behalf;
8. To have a speedy, impartial, and public
trial;
9. To appeal in all cases allowed and in the
manner prescribed by law.

1. Substantive due process this refers to

the intrinsic validity of the law
2. Procedural due process one that hears
before it condemns, proceeds upon
inquiry, and renders judgment only after
trial and based on the evidence presented
therein.
Is it necessary to have trial-type
proceedings
in
order
to
satisfy
the
requirement of due process?
No. There is no need for trial-type proceedings in
order to satisfy due process. What is important
is that there was an opportunity to be heard.
Notice
and
hearing
are
the
minimum
requirements of due process.
In general, what are the requirements of
procedural due process?
1. There must be an impartial and competent
court with judicial power to hear and
determine the matter before it;
2. Jurisdiction must be lawfully acquired over
the person of the defendant or over the
property subject of the proceeding;
3. The defendant must be given an
opportunity to be heard;
4. Judgment must be rendered upon lawful
hearing.
In criminal cases, what are the
requirements of procedural due process?
The requirements in criminal cases are more
stringent. They are:
1. The accused must have been heard by a
court of competent jurisdiction;
2. He must have been proceeded against
under orderly processes of the law;
3. He may be punished only after inquiry and
investigation;
4. There must be notice to the accused;
5. The accused must be given an opportunity
to be heard;
6. Judgment must be rendered within the
authority of a constitutional law.
Presumption of Innocence

Due Process

What is the meaning of the right of

presumption of innocence?

What are the two aspects of the right to

due process?

The right means that the presumption must be

overcome by evidence of guilt beyond reasonable

23
doubt. Guilt beyond reasonable doubt means
that there is moral certainty as to the guilt of the
accused.
Conviction should be based on the
strength of the prosecution and not on the
weakness of the defense. The significance of this
is that accusation is not synonymous with guilt.
What are the exceptions to the
constitutional presumption of innocence?
1. Presumptions If there is a reasonable
connection between the fact presumed
and the fact ultimately proven from such
fact
Examples:
a. When an accountable public officer
fails to account for funds or
property that should be in his
custody, he is presumed to be
guilty of malversation;
b. Persons in possession of recently
stolen goods are presumed guilty
of the offense in connection with
the goods.
2. Self-Defense One who invokes selfdefense is presumed guilty. The burden
of proving the elements of self-defense
(unlawful
aggression,
reasonable
necessity of the means used to prevent or
repel it; lack of sufficient provocation on
the part of the one defending himself)
belongs to the accused.
What is a reverse trial?
Usually, the prosecution presents its evidence to
establish the guilt of the accused first. But a
reverse trial happens if the accused admits the
killing but claims self-defense. He must first
establish the elements of self-defense in order to
overturn the presumption that he was guilty of
the offense.
Right to be present at the trial
What are the requisites of a valid trial in
absentia?

Yes, except in the following situations, where the

presence of the accused at the trial is required:
1. Arraignment;
2. During promulgation of judgment, except
if it is for a light offense;
3. When the presence of the accused at the
trial is necessary for purposes of
identification,
unless
he
admits
beforehand that he is the same person
charged.
Right to Counsel
Is there a difference between the right to
counsel during custodial investigation and
the right to counsel during the trial?
Yes.
In custodial investigation, the right to
counsel can only be waived in writing AND with
the assistance of counsel. The counsel required
in custodial investigation is competent and
independent counsel, preferably of his own (the
suspects) choice.
During the trial, the right to counsel means the
right to effective counsel.
The requirement is stricter during custodial
investigation because a trial is done in public,
while custodial investigation is not. The danger
that confessions will be extracted against the will
of the defendant during custodial investigation
does not really exist during trial.
During trial the purpose of counsel is not so
much to protect him from being forced to confess
but to defend the accused.
Why is the right to counsel afforded during
trial?
The right to counsel is embraced in the right to
be heard.
When should the right to counsel be
invoked?

1. The accused has already been arraigned;

2. He has been duly notified of the trial
3. His failure to appear at the trial is
unjustifiable.

The right to counsel may be invoked at any stage

of the proceedings, even on appeal. However, it
can also be waived. The accused is deemed to
have waived his right to counsel when he
voluntarily submits himself to the jurisdiction of
the Court and proceeds with his defense.

Can the right to be present at the trial be

waived?

But in US v. Escalante and People v. Nang Kay

(p. 532 of Herrera Textbook), the Court held that

24
the defendant cannot raise the question of his
right to have an attorney for the first time on
appeal. If the question is not raised in the trial
court, the prosecution may go to trial.
The
question will not be considered in the appellate
court for the first time when the accused fails to
raise it in the lower court.
Is the duty of the court to appoint counselde-oficio mandatory at all times?
No.
The duty to appoint counsel-do-oficio is
mandatory only up to arraignment.
Does the mistake of counsel bind the
client?
As a rule, the mistake of counsel binds the client.
Therefore, the client cannot question a decision
on the ground that counsel was an idiot.
However, an exception to this is if counsel
misrepresents himself as a lawyer, and he turns
out to be a fake lawyer.
In this case, the
accused is entitled to a new trial because his
right to be represented by a member of the bar
was violated. He was thus denied of his right to
counsel and to due process.
Is the right to counsel absolute?
No.
The right of choice must be reasonably
exercised. The accused cannot insist on counsel
that he cannot afford, one who is not a member
of the bar, or one who declines for a valid reason,
such as conflict of interest. Also, the right of the
accused to choose counsel is subject to the right
of the state to due process and to speedy and
adequate justice.
When can the accused defend himself in
person?
The accused can defend himself in person only if
the court is convinced that he can properly
protect his rights even without the assistance of
counsel.
Right to be a Witness on His Own Behalf
What is the weight of the testimony of an
accused who testifies on his own behalf but
refuses to be cross-examined?
The testimony will not be given weight. It will
not have probative value because the prosecution
was not given a chance to test the credibility of
the testimony through cross-examination.

Right Against Self-Incrimination

What is the scope of the right against
self-incrimination?
The right against self-incrimination covers
testimonial compulsion only and the compulsion
to produce incriminating documents, papers, and
chattels. It does not cover the compulsion to
produce real or physical evidence using the body
of the accused.
Is there an exception to the right against
self-incrimination?
The right cannot be invoked when the State has
the right to inspect documents under its police
power, such as documents of corporations.
What is the rationale for protecting the
right against self-incrimination?
There are two reasons:
1. For humanitarian reasons: To prevent the
State, with all its coercive powers, from
extracting testimony that may convict the
accused.
2. For practical reasons: The accused is likely
to commit perjury if he were compelled to
testify against himself.
Who may invoke the right against selfincrimination, and when can they invoke the
right?
1. An ordinary witness may invoke the right,
but he may only do so as each
incriminating question is asked.
2. The accused himself may invoke the right,
and unlike the ordinary witness, he may
altogether refuse to take the witness
stand and refuse to answer any and all
questions.
But, once the accused waives his right and
chooses to testify in his own behalf, he
may be cross-examined on matters
covered in his direct examination.
He
cannot refuse to answer questions during
cross-examination by claiming that the
answer that he will give could incriminate
him for the crime with which he was
charged.
However, if the question during crossexamination relates to a crime different
from that with which he was charged, he

25
can still invoke the right and refuse to
answer.
Can the accused or witness invoke the
right against self-incrimination if he is
asked about past criminality?
It depends. If he can still be prosecuted for it,
questions about past criminal liability are still
covered by the protection of the right against
self-incrimination.
But if he cannot be
prosecuted for it anymore, he cannot invoke the
right.
What are the rights of the accused in the
matter of testifying or producing evidence?
1. Before the case is filed in Court but after
he has been taken into custody or
otherwise deprived of his liberty
a. the right to be informed of
b. his right to remain silent and to
counsel
c. the right not to be subjected to
force,
violence,
threat,
intimidation, or any other means
which vitiate free will
d. the right to have evidence obtained
in violation of these rights rejected
2. After the case is filed in court
a. to refuse to be a witness
b. not
to
have
any
prejudice
whatsoever result to him by such
refusal
c. to testify in his own behalf subject
to
cross-examination
by
the
prosecution
d. while testifying, to refuse to
answer a specific question which
tends to incriminate his for some
crime other than that for which he
is being prosecuted.
What are immunity statutes?
The immunity statutes are classified into two
use
immunity
statutes
and
transactional
immunity statutes.

Transactional immunity grants immunity to the

witness from prosecution for an offense to
which his compelled testimony relates. (Here, the
witness cannot be prosecuted at all.) Examples
are state witnesses and those who furnish
information about violations of the Internal
Revenue Code, even if they themselves offered
bribes to the public official.
What is the effect of the refusal of the
accused to refuse to testify in his behalf?
As a general rule, the silence of the accused
should not prejudice him.
However, in the following cases, an unfavorable
inference is drawn from the failure of the accused
to testify:
1. If the prosecution has already established
a prima facie case, the accused must
present proof to overturn the evidence of
the prosecution.
2. If the defense of the accused is alibi and
he does not testify, the inference is that
the alibi is not believable.
Is DNA testing covered by the right
against self-incrimination?
No (recent SC ruling).
Right of Confrontation
What is the meaning of the right of
confrontation?
It means that the accused can only be tried using
those witnesses that meet him face to face at the
trial who give testimony in his presence, with the
opportunity to cross-examine them.
What are the reasons for the right?
1. To allow the court to observe the
demeanor of the witness while testifying.
2. To give the accused the opportunity to
cross-examine the witness in order to test
their recollection and credibility.
Can the right of confrontation be waived?

Use immunity prohibits the use of a witness

compelled testimony and its fruits in any
manner in connection with the criminal
prosecution of the witness. (Therefore, the
witness can still be prosecuted, but the compelled
testimony cannot be used against him.)

Yes, it can be waived either expressly or

impliedly.
It is waived impliedly when an
accused waives his right to be present at the
trial. The right of confrontation may also be
waived by conduct amounting to a renunciation

of the right to cross-examine. When the party

was given an opportunity to confront and crossexamine an opposing witness but failed to take
advantage of it for reasons attributable to himself
alone, he is deemed to have waived the right.
What happens to the testimony of a
witness who dies or becomes unavailable?
It depends.
If the other party had the
opportunity to cross-examine the witness before
he died or became unavailable, the testimony
may be used as evidence. However, if the other
party did not even have the opportunity to crossexamine before the subsequent death or
unavailability of the witness, the testimony will
have no probative value. (An opportunity to
cross-examine is all that is necessary in order to
allow the use of the testimony of the witness.
There need not be an actual cross-examination,
as long as there was an opportunity to do so.)
Right to Compulsory Process
What is the right to compulsory process?
It is the right of the accused to have a subpoena
and/or a subpoena duces tecum issued in his
behalf in order to compel the attendance of
witnesses and the production of other evidence.
What happens if a witness refuses to
testify when required?
The court should order the witness to give bail or
even order his arrest, if necessary. Failure to
obey a subpoena amounts to contempt of court.
Right to Speedy, Public, and Impartial Trial

26
pleads not guilty should be held within 30 days
from the date the court acquires jurisdiction of
the person of the accused.
Within how many days should the trial be
completed?
In no case shall the entire period exceed 180
days from the first day of trial, except as
otherwise authorized by the Court Administrator.
What is the remedy of an accused whose
right to speedy trial is violated?
The accused has the following remedies:
1. File a motion to dismiss on the ground of
violation of his right to speedy trial. (For
purposes of double jeopardy, this has the
same effect as an acquittal.) This must be
done prior to trial, or else, it is deemed a
waiver of the right to dismiss.
2. File for mandamus to compel a dismissal
of the information.
3. If he is restrained of his liberty, file for
habeas corpus.
4. Ask for the trial of the case.
What is the limitation on the right of an
accused to a speedy trial?
The limitation is that the State should not be
deprived of its day in court. The right of the
State/the prosecution to due process should be
respected.
The prosecution and the complainant fail
to attend the first hearing.
The court
postpones the hearing to another date. Is
there a violation of the right to speedy trial?

How should the trial be conducted?

The trial should be speedy, public, and impartial.
What is the meaning of the right to
speedy trial?
The right means that the
conducted according to the
procedure and the rules and
from vexations, capricious,
delays.

trial should be
law of criminal
regulations, free
and oppressive

When should the arraignment and pretrial be held?

According to the Speedy Trial Act and Circular
38-98, arraignment and pre-trial if the accused

No. The right to speedy trial is violated when

there are unjustified postponements of the trial,
and a long period of time is allowed to elapse
without the case being tried for no justifiable
reason.
What is the meaning of the right to a
public trial?
It means that anyone interested in observing the
manner that a judge conducts the proceedings in
his courtroom may do so.
Why should a trial be conducted in public?
The trial should be public in order to prevent
abuses that may be committed by the court to

the prejudice of the defendant. Moreover, the

accused is entitled to the moral support of his
friends and relatives.
Is there an exception to the requirement
of publicity?

27
The accused must be arraigned before the
court where the complaint was filed or assigned
for trial.
How is arraignment made?
Arraignment is made:

Yes. The court may bar the public in certain

cases, such as when the evidence to be
presented may be offensive to decency or public
morals, or in rape cases, where the purpose of
some persons in attending is merely to ogle at
the parties.
Is it okay to hold the trial in the chambers
of the judge?
Yes. There is no violation of the right to a public
trial, since the public is not excluded from
attending the trial.
In so-called trials by publicity, when can
the publicity be considered prejudicial to the
accused?
To warrant a finding of prejudicial publicity, there
must be allegations and proof that the judges
have been unduly influenced, not simply that
they might be, by the barrage of publicity.
Right to Appeal, When Allowed
Is the right to appeal a fundamental
right?
No. The right to appeal is a statutory right,
except in the case of the minimum appellate
jurisdiction of the Supreme Court granted by the
Constitution. Anyone who seeks to exercise the
right to appeal must comply with the
requirements of the rules.
Can the right to appeal be waived?
Yes, it can be waived expressly or impliedly.
What is the effect of the flight of the
accused on his right to appeal?
When the accused flees after the case has been
submitted to the court for decision, he will be
deemed to have waived his right to appeal from
the judgment rendered against him.
RULE 116 ARRAIGNMENT AND PLEA
Where should the accused be arraigned?

1. in open court
2. by the judge or clerk
3. by furnishing the accused with a copy of
the complaint or information
4. reading it in the language or dialect
known to him, and
5. asking him whether he pleads guilty or
not guilty.
Can there be an arraignment without the
presence of the accused?
No.
The accused must be present at the
arraignment and must personally enter his plea.
What is the effect of the refusal of the
accused to enter a plea?
If the accused refuses to plead or makes a
conditional plea, a plea of not guilty shall be
entered for him.
X is charged with homicide. He pleads
guilty but presents evidence to establish
self-defense. What should the court do?
The court should withdraw the plea and enter a
plea of not guilty.
When should the arraignment be held?
The general rule is that the accused should be
arraigned within 30 days from the date the court
acquires jurisdiction over the person of the
accused. The time of the pendency of a motion
to quash or for a bill of particulars or other
causes justifying suspension of the arraignment
shall be excluded in computing the period.
However, in the following cases, the accused
should be arraigned with a shorter period:
1. Where the complainant is about to depart
from the Philippines with no definite date
of return, the accused should be arraigned
without delay and his trial should
commence
within
3
days
from
arraignment.
2. The trial of cases under the Child Abuse
Act requires that the trial should be

28
commenced
within
3
days
from
arraignment.
3. When the accused is under preventive
detention, his case shall be raffled and its
records transmitted to the judge to whom
the case was raffled within 3 days from
the filing of the information or complaint.
The accused shall be arraigned within 10
days from the date of the raffle.
Can the lawyer of the accused enter a plea
for him?
No. The accused must personally enter his plea.
What is the importance of arraignment?
Arraignment is the means for bringing the
accused into court and informing him of the
nature and cause of the accusation against him.
During arraignment, he is made fully aware of
possible loss of freedom or life. He is informed
why the prosecuting arm of the State is mobilized
against him. It is necessary in order to fix the
identity of the accused, to inform him of the
charge, and to give him an opportunity to plead.
During the arraignment, is the judge dutybound to point out that an information is
duplicitous?
No. The judge has no obligation to point out the
duplicitousness or any other defect in an
information during arraignment. The obligation
to move to quash a defective information belongs
to the accused, whose failure to do so constitutes
a waiver of the right to object.
X was tried for murder without having
been arraigned. At the trial, Xs counsel
presented witnesses and cross-examined
the prosecution witnesses. It was only after
the case was submitted for decision that X
was arraigned. X was convicted. Can X
invoke the failure of the court to arraign him
before trial as a ground for questioning the
conviction?
No. The failure of the court to arraign X before
trial was conducted did not prejudice the rights of
X since he was able to present evidence and
cross-examine the witnesses of the prosecution.
The error was cured by the subsequent
arraignment.
Is the accused presumed to have been
arraigned in the absence of proof to the
contrary?

Yes. In view of the presumption of regularity in

the performance of official duties, it can be
presumed that a person accused of a crime was
arraigned, in the absence of proof to the
contrary. However, the presumption of regularity
is not applied when the penalty imposed is death.
When the life of a person is at stake, the court
cannot presume that there was an arraignment;
it has to be sure that there was one.
Is the accused entitled to know in
advance the names of all of the prosecution
witnesses?
No. The success of the prosecution might be
endangered if this right were granted to the
accused. The witnesses might be subjected to
pressure or coercion. The right time for the
accused to know their identities is when they
take the witness stand.
Can the prosecution call witnesses that
are not listed in the information?
Yes.
The prosecution may call at the trial
witnesses other than those named in the
complaint or information.
X was charged with homicide. He entered
a plea of guilty. He was later allowed to
testify in order to prove the mitigating
circumstance of incomplete self-defense. At
the trial, he presented evidence to prove
that he acted in complete self-defense. The
court acquitted him. Later, X was again
charged with physical injuries. X invoked
double jeopardy. Can X be prosecuted again
for physical injuries?
Yes. There was no double jeopardy. In order for
double jeopardy to attach, there must have been
a valid plea to the first offense. In this case, the
presentation by X of evidence to prove complete
self-defense had the effect of vacating his plea of
guilt. When the plea of guilt was vacated, the
court should have ordered him to plead again, or
at least should have directed that a new plea of
not guilty be entered for him. Because the court
did not do this, at the time of the acquittal, there
was actually no standing plea for X. Since there
was no valid plea, there can be no double
jeopardy.
Can a person who pleaded guilty still be
acquitted?
Yes. When an accused pleads guilty, it does not
necessarily follow that he will be convicted.

29
Additional evidence independent of the guilty
plea may be considered by the judge to ensure
that the plea of guilt was intelligently made. The
totality of evidence should determine whether the
accused should be convicted or acquitted.

It is mitigating if made before the prosecution

starts to present evidence.

When can the accused plead guilty to a

lesser offense?

In all cases, the judge must convince himself: (1)

that the accused is entering the plea of guilty
voluntarily and intelligently; and (2) that he is
truly guilty and that there exists a rational basis
for a finding of guilt based on his testimony.

At arraignment, the accused may plead guilty to

a lesser offense which is necessarily included in
the offense charged, provided that the offended
party and the prosecutor give their consent.
After arraignment BUT BEFORE TRIAL, the
accused may still be allowed to plead guilty to a
lesser offense, after he withdraws his plea of not
guilty.
In such a case, the complaint or
information need not be amended.
When the penalty imposable for the offense is at
least 6 years and 1 day or a fine exceeding
P12,000, the prosecutor must first submit his
recommendation to the City or Provincial
Prosecutor or to the Chief State Prosecutor for
approval. If the recommendation is approved,
the trial prosecutor may then consent to the plea
of guilty to a lesser offense.
What should the court do when the
accused pleads guilty to a capital offense?
The court should:
1. conduct a searching inquiry into the
voluntariness and full comprehension of
the consequences of the plea.
2. require the prosecution to present
evidence to prove the guilt and the precise
degree of culpability of the accused for the
purpose of imposing the proper penalty.
3. ask the accused if he desires to present
evidence in his behalf and allow him to do
so if he desires.
Does a plea of guilty mean an admission
even of the aggravating circumstances?
Yes. A plea of guilty results in the admission of
all the material facts in the complaint or
information,
including
the
aggravating
circumstances. Because of this, the court should
only accept a clear, definite, and unconditional
plea of guilty.
When can the plea of guilty be considered
a mitigating circumstance?

What is the meaning of the duty of the

judge to conduct a searching inquiry?

In addition, the judge must inform the accused of

the exact length of imprisonment and the
certainty that he will serve it at the national
penitentiary or a penal colony. The judge must
dispel any false notion that the accused may
have that he will get off lightly because of his
plea of guilt.
Is it mandatory for the prosecution to
present proof of aggravating circumstances?
Yes. It is mandatory in order to establish the
precise degree of culpability and the imposable
penalty. Otherwise, there is an improvident plea
of guilty.
Can a court validly convict an accused
based on an improvident plea of guilty?
Yes. If there is adequate evidence of the guilt of
the accused independent of the improvident plea
of guilty, the court may still convict the accused.
The conviction will be set aside only if the plea of
guilt is the sole basis of the judgment.
What should the court do when the
accused pleads guilty to a non-capital
offense?
The court may receive evidence from the parties
to determine the penalty to be imposed. Unlike
in a plea of guilty to a capital offense, the
reception of evidence in this case is not
mandatory. It is merely discretionary on the
court.
When can the validity of a plea of guilty
be attacked?
Generally, a plea of guilty cannot be attacked if it
is made voluntarily and intelligently. It can only
be attacked if it was induced by threats,
misrepresentation, or bribes.
When the
consensual character of the plea is called into
question or when it is shown that the defendant

30
was not fully apprised of its consequences, the
plea can be challenged.
Can an improvident plea of guilty be
withdrawn as a matter of right?
No. The withdrawal of the plea of guilty is not a
matter of strict right to the accused but is within
the discretion of the court. The reason for this is
that trial has already commenced; withdrawal of
the plea will change the theory of the case and
will put all of the past proceedings to waste.
Therefore, it may only be withdrawn with
permission of the court.
Moreover, there is a presumption that the plea
was made voluntarily. The court must decide
whether the consent of the accused was, in fact,
vitiated when he entered his plea.
X is charged with homicide.
guilty, but tells the judge
sinasadya. Is his plea valid?

He pleads
hindi ko

No. In order to be valid, the plea of guilty must

be unconditional.
In this case, when X said
hindi ko sinasadya, he made a qualified plea of
guilty. This is not a valid plea of guilty. A plea of
not guilty should be entered instead.
When a defendant appears without an
attorney during arraignment, what should
the court do?
The court has a four-fold duty:
1. It must inform the defendant that he has
a right to an attorney before being
arraigned;
2. After informing him, the court must ask
the defendant if he desires to have the aid
of an attorney;
3. If he desires and is unable to employ an
attorney, the court must assign an
attorney de oficio to defend him;
4. If the accused desires to procure an
attorney of his own, the court must grant
him a reasonable time therefor.
What is the reason for this four-fold duty?
The right to be heard would be of little avail if it
does not include the right to be heard by counsel.
What is the effect of the failure of the
court to comply with these duties?
It is a violation of due process.

What is a counsel de oficio?

Counsel de oficio is counsel appointed by the
court to represent and defend the accused in
case he cannot afford to employ one himself.
Who can be appointed as counsel de
oficio?
The court, considering the gravity of the offense
and the difficulty of the questions that may arise
shall appoint as counsel de oficio:
1. such members of the bar in good standing
2. who by reason of their experience and
ability, can competently defend the
accused.
But, in localities where such members of the bar
are not available, the court may appoint any
person who is:
1. a resident of the province
2. and of good repute for probity and ability
to defend the accused.
What is the difference between the duty
of the court to appoint counsel de oficio
during arraignment and during trial?
During arraignment, the court has the affirmative
duty to inform the accused of his right to counsel
and to provide him with one in case he cannot
afford it. The court must act on its own volition,
unless the right is waived by the accused.
On the other hand, during trial, it is the accused
who must assert his right to counsel. The court
will not act unless the accused invokes his rights.
Can a non-lawyer represent the accused
during arraignment?
No. During arraignment, it is the obligation of
the court to ensure that the accused is
represented by a lawyer because it is the first
time when the accused is informed of the nature
and cause of the accusation against him. This is
a task which only a lawyer can do.
But during trial, there is no such duty. The
accused must ask for a lawyer, or else, the right
is deemed waived. He can even defend himself
personally.
May an accused be validly represented by
a non-lawyer at the trial?

31
If the accused knowingly engaged the services of
the non-lawyer, he is bound by the non-lawyers
actions. But if he did not know that he was being
represented by a non-lawyer, the judgment is
void because of the misrepresentation.
What are the duties of the pubic attorney
if the
accused assigned to him
is
imprisoned?
1. He shall promptly undertake to obtain the
presence of the prisoner for trial, or cause
a notice to be served on the person
having custody of the prisoner, requiring
such person to advise the prisoner of his
right to demand trial.
2. Upon receipt of that notice, the person
having custody of the prisoner shall
promptly advise the prisoner of the charge
and of his right to demand trial. It at
anytime thereafter, the prisoner informs
his custodian that he demands such trial,
the latter shall cause notice to that effect
to be sent promptly to the public attorney.
3. Upon receipt of such notice, the public
attorney shall promptly seek to obtain the
presence of the prisoner for trial.
4. When the person having custody of the
prisoner receives from the public attorney
a properly supported request for the
availability of the prisoner for purposes of
the trial, the prisoner shall be made
available accordingly.
What is a bill of particulars?
It is a more specific allegation. A defendant in a
criminal case who believes or feels that he is not
sufficiently informed of the crime with which he is
charged and not in a position to defend himself
properly and adequately could move for a bill or
particulars or specifications.
What is
particulars?

the

purpose

of

bill

of

It is to allow the accused to prepare for his

defense.
When can the accused move for a bill of
particulars?
The accused must move for a bill of particulars
before arraignment.
Otherwise, the right is
deemed waived.

What should be contained in the motion

for a bill or particulars?
It should specify the alleged defects of the
complaint or information and the details desired.
What is the right to modes of discovery?
It is the right of the accused to move for the
production or inspection or 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 of the court.
What is the purpose of this right?
The purpose is to prevent surprise to the accused
and the suppression or alteration of evidence.
Is this right available during preliminary
investigation?
Yes,
when
indispensable
to
protect
his
constitutional right to life, liberty, and property.
(Webb v. de Leon)
What are the grounds for suspending
arraignment?
1. If the accused appears to be suffering
from an unsound mental condition, which
renders him unable to fully understand
the charge against him and to plead
intelligently thereto.
The court should
order his mental examination and his
confinement, if necessary.
2. If there exists a prejudicial question.
3. If a petition for review of the resolution of
the prosecutor is pending either at the
DOJ or the Office of the President.
However, the period of suspension shall
not exceed 60 days counted from the
filing of the petition for review.
What is the test to determine whether the
insanity of the accused should warrant the
suspension of the proceedings?
The test is whether the accused will have a fair
trial with the assistance of counsel, in spite of his
insanity. Not every aberration of the mind or
exhibition of mental deficiency is sufficient to
justify suspension.
RULE 117 MOTION TO QUASH

 When can the accused file a motion to

quash?
At any time before entering his plea, the accused
may move to quash the complaint or information.

32
X filed a motion to quash an
information on the ground that he was in
the US when the crime charged was
committed. Should the motion be granted?

What is the form required for a motion to

quash?

The motion should be denied. The accused is

already making a defense. Matters of defense
are generally not a ground for a motion to quash.
They should be presented at the trial.

1. It must be in writing.
2. It must be signed by the accused or his
counsel.
3. It must specify its factual and legal
grounds.

What is meant by the statement that a

motion to quash hypothetically admits
allegations of fact in the information?

Can the court dismiss the case based on

grounds that are not alleged in the motion
to quash?
As a general rule, no. The court cannot consider
any ground other than those stated in the motion
to quash. The exception is lack of jurisdiction
over the offense charged. If this is the ground
for dismissing the case, it need not be alleged in
the motion to quash since it goes into the very
competence of the court to pass upon the case.
What are the grounds that the accused
may invoke to quash a complaint or
information?
1. That the facts charged do not constitute
an offense;
2. That the court trying the case has no
jurisdiction over the offense charged;
3. That the court trying the case has no
jurisdiction over the person of the
accused;
4. That the officer who filed the information
had no authority to do so;
5. That it does not conform substantially to
the prescribed form;
6. That more than one offense is charged
except when a single punishment for
various offenses is prescribed by law
(duplicitous);
7. That the criminal action or liability has
been extinguished;
8. That it contains averments which, if true,
would constitute a legal excuse or
justification;
9. That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without
his express consent. (double jeopardy)

It means that the accused argues that assuming

that the facts charged are true, the information
should still be dismissed based on the ground
invoked by the defendant. Therefore, since the
defendant assumes that the facts in the
information are true, only these facts should be
taken into account when the court resolves the
motion to quash. Other facts, such as matters of
defense, which are not in the information should
not be considered. Exceptions to this rule are
when the grounds invoked to quash the
information are extinction of criminal liability,
prescription, and former jeopardy.
In these
cases, additional facts are allowed.
Can the accused move to quash on the
ground that he was denied due process?
No. Denial of due process is not one of the
grounds for a motion to quash.
X filed a motion to quash on the following
grounds: that the court lacked jurisdiction
over the person of the accused and that the
complaint charged more than one offense.
Can the court grant the motion on the
ground of lack of jurisdiction over the
person of the accused?
No. A motion to quash on the ground of lack of
jurisdiction over the person of the accused must
be based only on this ground. If other grounds
are included, there is a waiver, and the accused
is deemed to have submitted himself to the
jurisdiction of the court.
What is the effect of an information that
was signed by an unauthorized person?
It is a VALID information signed by a competent
officer which, among other requisites, confers
jurisdiction over the person of the accused and
the subject matter of the accusation. Thus, an
infirmity in the information such as lack of

33
authority of the officer signing it cannot be cured
by silence, acquiescence, express consent, or
even amendment.
What happens if the defendant enters his
plea before filing a motion to quash?
By entering his plea before filing the motion to
quash, the defendant waives FORMAL objections
to the complaint or information.
But if the ground for the motion is any of the
following, there is no waiver. The ground may be
raised at any stage of the proceeding:
1.
2.
3.
4.

failure to charge an offense

lack of jurisdiction over the offense
extinction of criminal liability
double jeopardy

does the death of the offended party in private

crimes abate the prosecution.
What are the means by which criminal
liability is partially extinguished?
1. Conditional pardon
2. Commutation of sentence
3. For good conduct, allowances which the
culprit may earn while he is serving his
sentence
What are the distinctions between pardon
and amnesty?

TYPE
OFFENSE

OF

How is criminal liability extinguished?

BENEFICIARY

Under Article 89 of the RPC, criminal liability is

extinguished by:

CONCURRENCE
OF CONGRESS
ACCEPTANCE

1. death of the convict, and as to pecuniary

penalties, liability therefor is extinguished
only when the death of the offender
occurs before final judgment;
2. service of sentence;
3. amnesty;
4. absolute pardon;
5. prescription of the crime;
6. prescription of the penalty;
7. marriage of the offended woman, as
provided in Article 344 of the RPC.
X and Y were charged with adultery.
While the case was being tried, X died.
What happens to the criminal liability of X
and Y?
The criminal liability of X is extinguished.
criminal liability of Y subsists. The death of
of several accused will not be a cause
dismissal of the criminal action as against
other accused.

Where the offense charged in a criminal

complaint or information is one against the state,
involving peace and order, the death of the
offended party before final conviction of the
defendant will not abate the prosecution. Neither

Classes
of
persons
Necessary
Beneficiary
need
not
accept

JUDICIAL
NOTICE

Courts take
judicial
notice
because it is
a public act

EFFECT

Abolishes
the offense
(looks
backward)

WHEN IT MAY
BE GRANTED

Before
or
after
prosecution

The
one
for
the

What is the effect of the death of the

offended party on the criminal liability of
the accused?

AMNESTY
Political
offenses

PARDON
Infractions of
the
peace
(common
crimes)
An individual
Not necessary
Need
for
distinct acts of
acceptance on
the part of the
pardonee
Courts do not
take
judicial
notice because
it is a private
act
of
the
President.
Therefore,
it
must
be
proved
in
court.
Relieves
the
offender from
the
consequences
of the offense
(looks
forward)
Only
after
conviction by
final judgment

What is the effect of absolute pardon

upon criminal liability?
Absolute pardon blots out the crime. It removes
all disabilities resulting from the conviction, such
as the political rights of the accused.

34
What is the effect of pardon by the
offended party upon criminal liability?
As a general rule, pardon by the offended party
does not extinguish criminal liability. Only civil
liability is extinguished by express waiver of the
offended party.
However, pardon granted before the institution of
the criminal proceedings in cases of adultery,
concubinage, seduction, abduction, and acts of
lasciviousness shall extinguish criminal liability.

Libel or other similar

offenses
Oral defamation and
slander by deed
Light offenses

2 years
6 months
2 months

Can the accused still raise prescription as

a defense even after conviction? Can the
defense of prescription be waived?

What is the effect of marriage of the

offender with the offended party in private
crimes?

The accused can still raise prescription as a

defense even after conviction.
The defense
cannot be waived. This is because the criminal
action is totally extinguished by the expiration of
the prescriptive period. The State thereby loses
or waives its right to prosecute and punish it.

It shall extinguish the criminal action or remit the

penalty already imposed. This applies even to
co-principals, accomplices, and accessories.

What is the proper action of the court

when the accused raises the defense of
prescription?

However, where multiple rape is committed,

marriage of the offended party with one
defendant extinguishes the latters liability and
that of his accessories or accomplices for a single
crime of rape cannot extend to the other acts of
rape.

The proper action for the court is to exercise its

jurisdiction and to decide the case upon the
merits, holding the action to have prescribed and
absolving the defendant. The court should not
inhibit itself because it does not lose jurisdiction
over the subject matter or the person of the
accused by prescription.

If the offender in rape is the legal

husband of the offended party, how can the
husbands criminal liability be extinguished?
The subsequent forgiveness by the wife shall
extinguish the criminal action or the penalty. But
the penalty shall not be abated if the marriage is
void ab initio.
Why is prescription a ground for a motion
to quash?
This is meant to exhort the prosecution not to
delay; otherwise, they will lose the right to
prosecute. It is also meant to secure the best
evidence that can be obtained.
What are the prescriptive periods of
crimes?
OFFENSE
Punishable by death,
reclusion perpetua, or
reclusion temporal
Punishable by other
afflictive penalties
Punishable by arresto
mayor

PRESCRIPTIVE
PERIOD
20 years
10 years
5 years

What is the effect of prescription of the

offense on the civil liability of the accused?
The extinction of the penal action does not carry
with it the extinction of the civil action to enforce
civil liability arising from the offense charged,
unless the extinction proceeds from a declaration
in a final judgment that the fact from which the
civil liability might arise did not exist.
What should the court do if the accused
moves
to
quash
the
complaint
or
information on grounds that can be cured by
amendment (ex: duplicitous)?
The court should order that the amendment be
made.
What should the court do if the accused
moves to quash on the ground that the facts
charged do not constitute an offense?
The court should give the prosecution the
opportunity to correct the defect by amendment.
If the prosecution fails to make the amendment,
or if, after it makes the amendment, the
complaint or information still suffers from the
same defect, the court should grant/sustain the
motion to quash.

35
What is the effect if a motion to quash is
sustained?
The court may order that another complaint or
information be filed against the accused for the
same offense, except if the ground for sustaining
the motion to quash is either:
1. extinguishment of the criminal liability of
the accused, or
2. double jeopardy.
The grant of a motion to quash on these two
grounds is a bar to another prosecution for the
same offense.
If the order is made, the accused, if in custody,
shall not be discharged unless admitted to bail.
If no order is made, or if no new information was
filed within the time specified by the court, the
accused, if in custody, shall be discharged.
What is the remedy of the accused if the
court denies his motion to quash?
The accused cannot appeal an order overruling
his motion to quash. This is because an order
denying a motion to quash is interlocutory; it
does not dispose of the case upon its merits. The
accused should go to trial and raise it as an error
on appeal later.
What are the two kinds of jeopardy?
1. No person shall be twice put in jeopardy
for the same offense.
2. When an act is punished by a law and an
ordinance, conviction or acquittal under
either shall constitute a bar to another
prosecution for the same act.
What are the requisites for the accused to
raise the defense of double jeopardy?
To raise the defense of double jeopardy, the
following requisites must be present:
1. a first jeopardy must have attached
prior to the second;
2. the first jeopardy must have been validly
terminated;
3. the second jeopardy must be for the
same offense or the second offense
includes or is necessarily included in
the
offense
charged
in
the
first

information, or is an attempt or a
frustration thereof.
What are the requisites for the first
jeopardy to attach?
1.
2.
3.
4.
5.

Valid complaint or information

Court of competent jurisdiction
Arraignment
Valid plea
The defendant was acquitted, convicted,
or the case was dismissed without his
express consent.

A crime was committed in Makati. The

case was filed in Pasay.
When the
prosecution realized that the complaint
should have been filed in Makati, it filed the
case in Makati.
Can the accused invoke
double jeopardy?
No.
The court in Pasay had no jurisdiction;
therefore, the accused was in no danger of being
placed in jeopardy. The first jeopardy did not
validly attach.
For purposes of double jeopardy, when is
a complaint or information valid?
A complaint or information is valid if it can
support a judgment of conviction.
It the
complaint or information is not valid, it would
violate the right of the accused to be informed of
the nature and cause of the accusation against
him. If he is convicted under this complaint or
information, the conviction is null and void. If
the conviction is null and void, there can be no
first jeopardy.
X was charged with qualified theft. X
moved to dismiss on the ground of
insufficiency of the information. The case
was
dismissed.
Subsequently,
the
prosecution filed a corrected information.
Can X plead double jeopardy?
No. The first jeopardy did not attach because the
first information was not valid.
X was charged with theft. During the
trial, the prosecution was able to prove
estafa. X was acquitted of theft. Can X be
prosecuted for estafa later without placing
him in double jeopardy?
Yes. For jeopardy to attach, the basis is the
crime charged in the complaint or information,
and not the one proved at the trial. In this case,

the crime charged in the first information was

theft. X was therefore placed in jeopardy of
being convicted of theft. Since estafa is not an
offense which is included or necessarily includes
theft, X can still be prosecuted for estafa without
placing him in double jeopardy.
The estafa case against X was dismissed,
but the dismissal contained a reservation of
the right to file another action. Can another
estafa case be filed against X without
placing him in double jeopardy?
Yes. To raise the defense of double jeopardy, the
firs jeopardy must have been validly terminated.
This means that there must have been either a
conviction or an acquittal, or an unconditional
dismissal of the case. A provisional dismissal,
such as this one, does not validly terminate the
first jeopardy.
Note, however, that in the second kind of
jeopardy (one act punished by a law and an
ordinance), the first jeopardy can only be
terminated either by conviction or acquittal, and
not by dismissal of the case without the express
consent of the accused.
X was charged with theft. On the day of
the trial, the prosecution could not go to
trial because important witnesses were
unable to appear. Counsel for the accused
moved to dismiss the case.
The court
dismissed
the
case
provisionally.
Subsequently, X was charged with theft
again. Can X invoke double jeopardy?
No. The case was dismissed upon motion of
counsel for the accused, so it was not dismissed
without his express consent.
Moreover, the
dismissal was only provisional, which is not a
valid termination of the first jeopardy. In order
to validly terminate the first jeopardy, the
dismissal must have been unconditional.
X was charged with slight physical
injuries.
On his motion, the case was
dismissed during the trial. Another case for
assault upon a person in authority was filed
against him. Can X invoke double jeopardy?
No.
The first jeopardy was not terminated
through either conviction, acquittal, or dismissal
without the express consent of X. The first case
was dismissed upon motion of X himself.
Therefore, he cannot invoke double jeopardy.

36
X was charged with theft. During trial,
the evidence showed that the offense
committed was actually estafa.
What
should the judge do?
The judge should order the substitution of the
complaint for theft with a new one charging
estafa. Upon filing of the substituted complaint,
the judge should dismiss the original complaint.
If it appears at any time before judgment that a
mistake has been made in charging the proper
offense, the court shall dismiss the original
complaint or information upon the filing of a new
one charging the proper offense.
What are the requisites for a valid
substitution of a complaint or information?
1. No judgment has been rendered;
2. The accused cannot be convicted of the
offense charged or any other offense
necessarily included in the offense
charged;
3. The accused will not be placed in double
jeopardy.
X was charged with homicide. On the first
day of trial, the prosecution failed to appear.
The court dismissed the case on the ground
of violation of the right of the accused to
speedy trial.
X was later charged with
murder. Can X invoke double jeopardy?
No.
The first jeopardy was not validly
terminated. The judge who dismissed the case
on the ground of violation of the right of X to
speedy trial committed grave abuse of discretion
in dismissing the case after the prosecution failed
to appear once. This is not a valid dismissal
because it deprives the prosecution of due
process. When the judge gravely abuses his
discretion in dismissing a case, the dismissal is
not valid. Therefore, X cannot invoke double
jeopardy.
Distinguish
acquittal.

between

dismissal

and

Acquittal is always based on the merits. The

accused is acquitted because the evidence does
not show his guilt beyond reasonable doubt.
Dismissal does not decide the case on the merits,
nor does it determine that the accused is not
guilty.
Dismissals terminate the proceedings,
either because the court is not a court of
competent jurisdiction or the evidence does not
show that the offense was committed within the

territorial jurisdiction of the court, or the

complaint or information is not valid or sufficient
in form and substance.
When is a dismissal of the case, even with
the express consent of the accused,
equivalent to an acquittal, which would
constitute a bar to a second jeopardy?
When is it not a bar to a second jeopardy?
A dismissal upon motion of the accused or his
counsel negates the application of double
jeopardy because the motion of the accused
amounts to express consent, EXCEPT:
1. if the ground is insufficiency of evidence of
the prosecution (demurrer to evidence),
or
2. denial of the right to speedy trial.
In these two cases, even upon motion of the
accused, the dismissal amounts to an acquittal
and would bar a second jeopardy.
But if the accused moves to dismiss on the
following grounds, he can still be prosecuted for
the same offense because he is deemed to have
waived his right against a second jeopardy:
1. Lack of jurisdiction (Why? Because if you
move to dismiss on the ground of lack of
jurisdiction, it means that you could not
have been validly convicted by that court.
You are later estopped from claiming that
you were in danger of conviction).
2. Insufficiency of complaint or information
(Same reason. You could not have been
validly convicted under that defective
information, so you are estopped from
claiming that there was a first jeopardy).
When will dismissal or termination of the
first case not bar a second jeopardy?
The conditions when dismissal or termination will
not place the accused in double jeopardy are:
1. The dismissal must be sought by the
defendant personally or through his
counsel; and
2. Such dismissal must not be on the merits
and must not necessarily amount to an
acquittal.
Before the prosecution could finish
presenting its evidence, the accused filed a
demurrer to evidence. The court granted
the motion and dismissed the case on the

37
ground of insufficiency of evidence of the
prosecution. Can the accused be prosecuted
for the same offense again?
Yes. There was no double jeopardy because the
court exceeded its jurisdiction in dismissing the
case even before the prosecution could finish
presenting evidence. It denied the prosecution of
its right to due process. Because of this, the
dismissal is null and void and cannot constitute a
proper basis for a claim of double jeopardy.
The prosecutor filed an information
against X for homicide. Before X could be
arraigned, the prosecutor withdrew the
information, without notice to X.
The
prosecutor then filed an information against
X for murder.
Can X invoke double
jeopardy?
No. X has not yet been arraigned under the first
information. Therefore, the first jeopardy did not
attach. A nolle prosequi or dismissal entered
before the accused is placed on trial and before
he pleads is not equivalent to an acquittal and
does not bar a subsequent prosecution for the
same offense.
If the accused fails to object to the
motion to dismiss the case filed by the
prosecution,
is
he
deemed
to
have
consented to the dismissal? Can he still
invoke double jeopardy?
No.
Silence does not mean consent to the
dismissal.
If the accused fails to object or
acquiesces to the dismissal of the case, he can
still invoke double jeopardy, since the dismissal
was still without his express consent.
He is
deemed to have waived his right against double
jeopardy if he expressly consents to the
dismissal.
X was charged with murder.
The
prosecution moved to dismiss the case.
Counsel for X wrote the words No
objection at the bottom of the motion to
dismiss and signed it. Can X invoke double
jeopardy later on?
No. X is deemed to have expressly consented to
the dismissal of the case when his counsel wrote
No objection at the bottom of the motion to
dismiss. Since the case was dismissed with his
express consent, X cannot invoke double
jeopardy.

 X was charged with murder. After the

prosecution presented its evidence, X filed a
motion to dismiss on the ground that the
prosecution failed to prove that the crime
was
committed
within
the
territorial
jurisdiction of the court.
The court
dismissed the case.
The prosecution
appealed. Can X invoke double jeopardy?
No.
X cannot invoke double jeopardy.
The
dismissal was upon his own motion, so it was
with his express consent. Since the dismissal
was with his express consent, he is deemed to
have waived his right against double jeopardy.
The only time when a dismissal, even upon
motion of the accuse, will bar a second jeopardy
is if it is based either on insufficiency of evidence
or denial of the right of the accused to speedy
trial. These are not the grounds invoked by X, so
he cannot claim double jeopardy.
X was charged with homicide. X moved to
dismiss on the ground that the court had no
jurisdiction.
Believing that it had no
jurisdiction, the judge dismissed the case.
Since the court, in fact, had jurisdiction over
the case, the prosecution filed another case
in the same court. Can X invoke double
jeopardy?
No. X is estopped from claiming that he was in
danger of being convicted during the first case,
since he had himself earlier alleged that the court
had no jurisdiction.
X was charged with homicide. The court,
believing that it had no jurisdiction, motu
propio dismissed the case. The prosecution
appealed, claiming that the court, in fact,
had jurisdiction.
Can X invoke double
jeopardy?
Yes. When the trial court has jurisdiction but
mistakenly
dismisses
the
complaint
or
information on the ground of lack of it, and the
dismissal was not at the request of the accused,
the dismissal is not appealable because it will
place the accused in double jeopardy.
X was charged with rape. X moved to
dismiss on the ground that the complaint
was insufficient because it did not allege
lewd designs. The court dismissed the case.
Later, another case for rape was filed
against X. Can X invoke double jeopardy?
No. Like the previous problem, X is estopped
from claiming that he could have been convicted

38
under the first complaint. He himself moved
to dismiss on the ground that the complaint was
insufficient. He cannot change his position and
now claim that he was in danger of being
convicted under that complaint.
X was charged with murder, along with
three other people. X was discharged as a
state witness. Can X be prosecuted again
for the same offense?
It depends.
As a general rule, an order
discharging an accused as a state witness
amounts to an acquittal, and he is barred from
being prosecuted again for the same offense.
However, if he fails or refuses to testify against
his co-accused in accordance with his sworn
statement constituting the basis for the
discharge, he can be prosecuted again.
Can a person accused of estafa be
charged with violation of BP22 without
placing him in double jeopardy?
Yes. Where two different laws define two crimes,
prior jeopardy as to one of the is no obstacle to a
prosecution of the other although both offenses
arise from the same facts, if each crime involves
some important act which is not an essential
element of the other. Other examples: Illegal
recruitment and estafa, illegal fishing and illegal
possession of explosives, alarm and scandal and
illegal discharge of firearms, brigandage and
illegal
possession
of
firearms,
consented
abduction and qualified seduction.
But take note of the following:
Possession of a shotgun and a revolver by the
same person at the same time is only one act of
possession, so there is only one violation of the
law.
Conviction for smoking opium bars prosecution
for illegal possession of the pipe. He cannot
smoke the opium without the pipe.
Theft of 13 cows at the same time and in the
same place is only one act of theft.
Conviction for less serious physical injuries bars
prosecution for assault upon a person in
authority.
Reckless imprudence resulting in damage to
property and serious or less serious physical
injuries is only one offense. If it is slight physical

39
injuries, it can be broken down into two offenses,
since a light offense cannot be complexed.
X installed a jumper cable which allowed
him to reduce his electricity bill. He was
prosecuted
for
violating
a
municipal
ordinance against unauthorized installation
of the device. He was convicted. Can he
still be prosecuted for theft?
No. Under the second type of jeopardy, when an
act is punished by a law and an ordinance,
conviction or acquittal under once will bar a
prosecution under the other. (But remember,
that there has to be either conviction or acquittal.
Dismissal without the express consent of the
accused is not sufficient).
What are the exceptions to double
jeopardy?
When can the accused be
charged with a second offense which
necessarily includes the offense charged in
the former complaint or information?
The conviction of the accused shall not be a bar
to another prosecution for an offense which
necessarily includes the offense charged in the
former complaint or information under any of the
following circumstances:
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 the offended party except
if the offended party fails to appear at the
arraignment.
What is the doctrine of supervening fact?
If, after the first prosecution, a new fact
supervenes on which the defendant may be held
liable, altering the character of the crime and
giving rise to a new and distinct offense, the
accused cannot be said to be in second jeopardy
if indicted for the new offense.
X was charged with frustrated homicide.
There was nothing to indicated that the
victim was going to die. X was arraigned.
Before trial, the victim dies.
Can X be
charged with homicide?

It depends. If the death of the victim can be

traced to the acts of X, and the victim did not
contribute to his death with his negligence, X can
be charged with homicide. This is a supervening
fact. But if the act of X was not the proximate
cause of death, he cannot be charged with
homicide.
X was charged with reckless imprudence
resulting in homicide and was acquitted.
The heirs of the victim appealed the civil
aspect of the judgment. X claims that the
appeal will place him in double jeopardy. Is
X correct?
No. There was no second jeopardy. What was
elevated on appeal was the civil aspect of the
case, not the criminal aspect. The extinction of
criminal liability whether by prescription or by the
bar of double jeopardy does not carry with it the
extinction of civil liability arising from the offense
charged.
X was charged with murder and was
acquitted. Can the prosecution appeal the
acquittal?
No. The prosecution cannot appeal the acquittal,
since it would place the accused in double
jeopardy.
Even if the decision of acquittal was erroneous,
the prosecution still cannot appeal the decision.
It would still place the accused in double
jeopardy.
When can the prosecution appeal despite
the dismissal or termination of the case?
As a general rule, the dismissal or termination of
the case after arraignment and plea of the
defendant to a valid information shall be a bar to
another prosecution for the same offense, an
attempt or frustration thereof, or one included or
which includes the previous offense.
The
exceptions are:
1. if the dismissal of the first case was made
upon motion or with the express consent
of the defendant, unless the grounds are
insufficiency of evidence or denial of the
right to speedy trial;
2. if the dismissal is not an acquittal or
based upon consideration of the evidence
or of the merits of the case; and
3. the question to be passed upon by the
appellate court is purely legal so that

40
should the dismissal be found incorrect,
the case would have to be remanded to
the court of origin for further proceedings
to determine the guilt or innocence of the
accused.
What is the effect of the appeal by the
accused?

When should it be conducted?

After arraignment and within 30 days from the
date the court acquires jurisdiction over the
person of the accused.
What happens during pre-trial?
The following things are considered:

If the accused appeals, he waives his right

against double jeopardy. The case is thrown
wide open for review and a penalty higher than
that of the original conviction could be imposed
upon him.
What should the accused do if the court
denies the motion to quash on the ground of
double jeopardy?
He should plead not guilty and reiterate his
defense of former jeopardy.
In case of
conviction, he should appeal from the judgment,
on the ground of double jeopardy.
When can
dismissed?

case

be

provisionally

A case can only be dismissed provisionally if the

accused expressly consents, and with notice to
the offended party. Provisional dismissal does
not place the accused in double jeopardy. But, ff
the accused objects to the provisional dismissal,
a revival of the case would place him in double
jeopardy.
When does
become final?

the

provisional

dismissal

The provisional dismissal of offenses punishable

by imprisonment exceeding 6 years or a fine of
any amount shall become permanent after 1 year
without the case having been revived.
For offenses punishable by imprisonment of more
than 6 years, the provisional dismissal shall
become permanent after 2 years without the
case having been revived.
After the provisional dismissal becomes final, the
accused cannot be prosecuted anymore.
RULE 118 PRE-TRIAL
When is pre-trial required?
Pre-trial is mandatory in all criminal cases
cognizable by the Sandiganbayan, RTC, MTCs
and Municipal Circuit Trial Courts.

1. plea bargaining
2. stipulation of facts
3. marking for identification of evidence of
the parties
4. waiver of objections to admissibility of
evidence
5. modification of the order of trial if the
accused admits the charge but interposes
a lawful defense
6. other matters that will promote a fair and
expeditious trial of the criminal and civil
aspects of the case
What is the form required for the pre-trial
agreement?
Any agreement or admission entered into during
the pre-trial conference should be:
1. in writing
2. signed by the accused
3. signed by counsel
Otherwise, it cannot be used against the accused.
What is a pre-trial order?
It is an order issued by the court after the pretrial conference containing:
1. a recital of the actions taken,
2. the facts stipulated, and
3. the evidence marked.
The pre-trial order binds the parties, limits the
trial to matters not disposed of, and controls the
course of the action during the trial, unless
modified by the court to prevent manifest
injustice.
What is plea bargaining?
encouraged?

Why is it

It is the disposition of criminal charges by

agreement between the prosecution and the
accused. It is encouraged because it leads to
prompt and final disposition of most criminal
cases. It shortens the time between charge and

disposition and enhances whatever may be the

rehabilitative prospects of the guilty when they
are ultimately imprisoned.
When is plea bargaining not allowed?
It is not allowed under the Dangerous Drugs Act
where the imposable penalty is reclusion
perpetua to death.
RULE 119 TRIAL
How much time does the accused have to
prepare for trial?
After he enters his plea of not guilty, the accused
shall have at least 15 days to prepare for trial.
The trial shall commence within 30 days from
receipt of the pre-trial order.
How long should the trial last?
The entire trial period should not exceed 180
days from the first day of trial, except if
authorized by the Supreme Court.
What are the duties of the presiding judge
under the continuous trial system?
The judge should:
1. adhere faithfully to the session hours
prescribed by laws;
2. maintain full control of the proceedings;
3. efficiently allocate and use time and court
resources to avoid court delays.
In which cases is the time limitation not
applicable?
1. Criminal cases covered by the Rule on
Summary Procedure or those where the
penalty does not exceed 6 months
imprisonment or a fine of P1,000:
governed by the Rules on Summary
Procedure
2. When the offended party is about to
depart with no definite date or return:
trial shall commence within 3 days from
the date of arraignment, and cannot be
postponed except on grounds of illness of
the accused or other grounds over which
the accused has no control
3. Child abuse cases: trial shall commence
within 3 days from arraignment and
cannot be postponed except on grounds of

41
illness of the accused or other grounds
beyond his control
4. Violations of Dangerous Drugs Law: trial
shall be finished within 3 months from
filing of the information.
5. Kidnapping, Robbery in a band, Robbery
against a Banking or Financial Institution,
Violation of the Carnapping Act, and other
heinous crimes: trial shall be finished
within 60 days from the first day of trial.
What are the periods that should be
excluded in computing the time within
which trial must commence?
1. Any period of delay resulting from other
proceedings concerning the accused
2. Any period resulting from the absence or
unavailability of an essential witness.
3. Any period of delay resulting from mental
incompetence or physical inability of
the accused to stand trial.
4. If the information is dismissed upon
motion of the prosecution and thereafter a
charge is filed against the accused for the
same offense, any period of delay from
the date the charge was dismissed to the
date the time limitation would commence
to run as to the subsequent charge, had
there been no previous charge. (say
what?)
5. A reasonable period of delay when the
accused is joined for trial with a coaccused over whom the court has not
acquired jurisdiction, or as to whom the
time for trial has not run and not
motion for separate trial has been
granted.
6. Any period of delay from a continuance
granted by any court motu propio, or on
motion of either the accused or his
counsel, or the prosecution, if the court
granted it on the basis of finding that the
ends of justice served by taking such
action outweigh the best interest of the
public and the accused in a speedy trial.
What are examples of other proceedings
concerning the accused which should be
excluded from the computation of time?
1. Delay resulting from an examination of
the physical and mental condition of
the accused;
2. Delay resulting from proceedings with
respect to other criminal charges
against the accused;

3. Delay resulting from extraordinary

remedies
against
interlocutory
orders;
4. Delay
resulting
from
pre-trial
proceedings, provided that the delay
does not exceed 30 days;
5. Delay
resulting
from
orders
of
inhibition, or proceedings relating to
change of venue of cases or transfer
from other courts;
6. Delay resulting from a finding of the
existence of a prejudicial question
7. Delay reasonably attributable to any
period not to exceed 30 days during which
any proceeding concerning the accused is
actually under advisement.
When is an essential witness considered
absent?
When his whereabouts are unknown or cannot be
determined with due diligence.
When is an essential witness considered
unavailable?
When his whereabouts are known but his
presence at the trial cannot be obtained with due
diligence.
What are the factors for granting a
continuance/postponement?
1. Whether or not the failure to grant a
continuance in the proceeding would likely
make a continuation of such proceeding
impossible or result in a miscarriage of
justice; and
2. Whether or not the case taken as a whole
is so novel, unusual, and complex, due to
the number of accused or the nature of
the prosecution, or that it is unreasonable
to expect adequate preparation within the
periods of time established therein.
No continuance shall be granted because of
congestion of the courts calendar or lack of
diligent preparation or failure to obtain
available witnesses on the part of the
prosecutor.
Is the grant of a motion for continuance
or postponement a matter of right?
No. It is a matter of discretion on the part of the
court.

42
What are the public attorneys duties
where his client is being preventively
detained?
1. He shall promptly undertake to obtain the
presence of the prisoner for trial, or cause
a notice to be served on the person
having custody of the prisoner, requiring
such person to advise the prisoner of his
right to demand trial.
2. Upon receipt of that notice, the person
having custody of the prisoner shall
promptly advise the prisoner of the charge
and of his right to demand trial. It at
anytime thereafter, the prisoner informs
his custodian that he demands such trial,
the latter shall cause notice to that effect
to be sent promptly to the public attorney.
3. Upon receipt of such notice, the public
attorney shall promptly seek to obtain the
presence of the prisoner for trial.
4. When the person having custody of the
prisoner receives from the public attorney
a properly supported request for the
availability of the prisoner for purposes of
the trial, the prisoner shall be made
available accordingly.
If the accused is not brought to trial
within the time limit required, what is the
remedy?
The accused should move to dismiss the
information of the ground of denial of his right to
speedy trial. He shall have the burden of proving
the motion, but the prosecution shall have the
burden or proving that the delay was covered by
the allowed exclusions of time. If the complaint
or information is dismissed, the accused can
plead double jeopardy to a subsequent
prosecution.
The accused must move to dismiss before
actually going to trial. Otherwise, it is a waiver
of the right to dismiss.
What is the order of trial?
The trial proceeds in the following order:
1. The prosecution shall present evidence to
prove the charge and civil liability, if
proper.
2. the accused may present evidence to
prove his defense and damages, if any,
arising from the issuance of a provisional
remedy in the case.

3. The prosecution and the defense may, in

that order, present rebuttal and surrebuttal evidence, unless the court, in
furtherance of justice, permits them to
present additional evidence bearing upon
the main issue.
4. Upon admission of the evidence of the
parties, the case shall be deemed
submitted for decision unless the court
directs them to argue orally or to submit
written memoranda.
However, when the accused admits the act or
omission charged in the complaint or information,
but interposes a lawful defense, there will be a
reverse trial.
Distinguish between a negative defense
and an affirmative defense.
A negative defense requires the prosecution to
prove the guilt of the accused beyond reasonable
doubt. In a negative defense, the accused claims
that one of the elements of the offense charged
is not present.
It is incumbent upon the
prosecution to prove the existence of this
element. For example, in illegal possession of
firearms, the accused may interpose the negative
defense that he had a license to carry the
firearm.
He cannot be compelled by the
prosecution to present the license. It is the duty
of the prosecution to prove the absence of the
license, which is an essential element of the
offense charged.
On the other hand, in an affirmative defense, the
accused admits the act or omission charged, but
interposes a defense, which if proven, would
exculpate him. For example, the accused admits
killing the victim, but he claims that he did it in
self-defense. In this case, the burden of proving
the elements of self-defense belong to the
accused. There will be a reverse trial in which
the accused will prove the elements of selfdefense. This is because the accused admits the
act or omission already. The prosecution need
not prove it anymore. The accused must now
present evidence to justify the commission of the
act.
Who may examine a defense witness?
Who may examine a prosecution witness?
A defense witness may be examined by any
judge or by any member of the bar in good
standing designated by the judge, or before an
inferior court.

43
On the other hand, a prosecution witness may
only be examined before the judge of the court
where the case is pending.
If there are two or more accused, should
they be tried jointly or separately?
As a general rule, when two or more accused are
jointly charged with an offense, they should also
be tried jointly.
However, the court, in its
discretion and upon motion of the prosecutor
or any accused, may order separate trial for
one of the accused.
What happens to the evidence presented
in the trial of the other accused if a separate
trial is granted?
When a separate trial is demanded and granted,
it is the duty of the prosecution to repeat and
produce all its evidence at each and every trial,
unless it had been agreed by the parties that the
evidence for the prosecution would not have to
be repeated at the second trial and all the
accused
had
been
present
during
the
presentation of the evidence of the prosecution
and their attorney had the opportunity to crossexamine the witnesses for the prosecution.
X, a public officer, was charged with
malversation of public funds in conspiracy
with Y, a civilian. Should they both be tried
in the Sandiganbayan?
Yes. In case private individuals are charged as
co-principals, accomplices, or accessories with
public officers, they shall be tried jointly with said
public officers in the proper courts which shall
exercise exclusive jurisdiction over them.
What is a state witness?
A state witness is one of two or more persons
jointly charged with the commission of a
crime but who is discharged with his consent as
such accused so that he may be a witness for the
State.
When should the application for discharge
of the state witness be made?
It should be made upon motion
prosecution before resting its case.
What is the procedure?

of

the

44
1. Before resting its case, the prosecution
should file a motion to discharge the
accused as state witness with his consent.
2. The court will require the prosecution to
present evidence and the sworn statement
of the proposed state witness at a hearing
in order to support the discharge.
3. The court will determine if the requisites
of giving the discharge are present.
Evidence adduced in support of the
discharge shall automatically form part of
the trial.
4. If the court is satisfied, it will discharge
the state witness.
The discharge is
equivalent to an acquittal, unless the
witness later fails or refuses to testify.
5. If the court denies the motion for
discharge, his sworn statement shall be
inadmissible as evidence.
What are the requisites in order for a
person to be discharged as a state witness?
1. There is absolute necessity for the
testimony of the accused whose discharge
is requested;
2. There is no direct evidence available
for the proper prosecution of the offense
committed, except the testimony of the
said accused;
3. The testimony of said accused can be
substantially
corroborated
in
its
material points;
4. Said accused does not appear to be the
most guilty;
5. Said accused has not at any time been
convicted of any offense involving
moral turpitude.
Can the court grant the discharge before
the prosecution has finished presenting all
its evidence?
No. The court should resolve any motion to
discharge only after the prosecution has
presented all of its evidence since it is at this
time when the court can determine the presence
of the requisites above.
Although Chua v. CA (p. 703 of Herrera) says
that the prosecution is not required to present all
its other evidence before an accused can be
discharged. The accused may be discharged at

any time before the defendants have entered

upon their defense.
What is the meaning of absolute
necessity of the testimony of the proposed
state witness?
It means that there is no other evidence to
establish the offense other than the testimony of
the accused. For example, where an offense is
committed in conspiracy and clandestinely, the
discharge of one of the conspirators is necessary
in order to provide direct evidence of the
commission of the crime. No one else other than
one of the conspirators can testify on what
happened among them.
What is the remedy of the prosecution if
the court denies the motion to discharge?
The State can file a petition for certiorari.
What are the effects of the discharge?
1. Evidence in support of the discharge
become part of the trial. But if the court
denies the motion to discharge, his sworn
statement shall be inadmissible in
evidence.
2. Discharge of the accused operates as an
acquittal and bar to further prosecution
for the same offense,
EXCEPT if he fails or refuses to testify
against his co-accused in accordance with
his sworn statement constituting the basis
of the discharge. In this case, he can be
prosecuted again AND his admission can
be used against him.
What happens if the court improperly or
erroneously discharges an accused as state
witness (ex. he has been convicted pala of a
crime involving moral turpitude)?
The improper discharge will not render
inadmissible his testimony nor detract from his
competency as a witness.
It will also not
invalidate his acquittal because the acquittal
becomes ineffective only if he fails or refuses to
testify.
What happens when the original
information under which an accused was
discharged is later amended?
A discharge under the original information is just
as binding upon the subsequent amended

information, since the amended information is

just a continuation of the original.
Can the other conspirators be convicted
solely on the basis of the testimony of the
discharged state witness?
No. There must be other evidence to support his
testimony. The testimony of a state witness
comes from a polluted source and must be
received with caution. It should be substantially
corroborated in its material points.
As an exception however, the testimony of a coconspirator, even if uncorroborated, will be
considered sufficient if given in a straightforward
manner and it contains details which could not
have been the result of deliberate afterthought.
When can different offenses be tried
jointly?
When the offenses are founded on the same facts
or form part of a series of offenses of similar
character, the court has the discretion to
consolidate and try them jointly.
What is a demurrer to evidence?
It is a motion to dismiss the case filed by the
defense after the prosecution rests on the ground
of insufficiency of the evidence of the
prosecution.

45
notice of the grant of leave of court. The
prosecution may oppose the demurrer to
evidence within 10 days from its receipt of the
demurrer.
What is the effect of filing the demurrer to
evidence with leave of court?
If the court grants it, the case is dismissed.
If the court denies the demurrer to evidence filed
with leave of court, the accused may still
adduce evidence in his defense.
What is the effect of filing the demurrer to
evidence without leave of court?
If the court denies the demurrer to evidence
without leave of court, the accused is deemed to
have waived his right to present evidence and
submits the case for judgment on the basis of the
evidence of the prosecution. This is because
demurrer to evidence is not a matter of right but
is discretionary on the court. You have to ask for
its permission before filing it, or else you lose
certain rights.
What is the remedy of the accused if the
demurrer to evidence is denied?

What are the ways by which a case may

be dismissed on the basis of insufficiency of
evidence of the prosecution?

As a general rule, there can be no appeal or

certiorari from the denial of the demurrer to
evidence, since it is an interlocutory order, which
does not pass judgment on the merits of the
case. The codal says that there is no certiorari,
but J. Sabio says that if there was grave abuse of
discretion, there can be certiorari.

There are two ways:

When can a case be reopened?

1. the court may dismiss the case on its own

initiative after giving the prosecution the
right to be heard; or
2. upon demurrer to evidence filed by the
accused with or without leave of court.

At any time before finality of judgment of

conviction, the judge may reopen the case
either on his own volition or upon motion, with
hearing in either case, in order to avoid a
miscarriage of justice.

How do you file a demurrer to evidence

with leave of court?

The proceedings should be terminated within 30

days from the order granting the reopening of
the case.

Within 5 days after the prosecution rests, the

accused should file a motion for leave of court to
file a demurrer to evidence. In the motion for
leave of court, he should state his grounds. The
prosecution shall have 5 days within which to
oppose the motion.
If the leave of court is granted, the accused shall
file the demurrer to evidence within 10 days from

RULE 120 JUDGMENT

What is judgment?
Judgment is the adjudication by the court that
the accused is guilty or not guilty of the offense
charged and the imposition on him of the proper
penalty and civil liability, if any.

 What is
judgment?

the

form

required

for

the

The judgment must:

1. be written in the official language,
2. personally and directly prepared by the
judge,
3. signed by him, and
4. should contain clearly and distinctly a
statement of the facts and law upon which
it is based.
If the judge has very strong beliefs
against the imposition of the death penalty,
can he refuse to impose it upon an accused
who is guilty of an offense punishable with
death?
No. The judge must impose the proper penalty
provided for by the law, even if he is against it.
If he refuses to do so, it is grave abuse of
discretion amounting to lack of jurisdiction.
What are the contents of the judgment?
If the judgment is of conviction, it shall state the
following:
1. the legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating and
mitigating
circumstances
which
attended its commission;
2. the participation of the accused,
whether as principal, accomplice, or
accessory;
3. the penalty imposed upon the accused;
4. the civil liability or damages, if any,
unless the enforcement of the civil liability
has been reserved or waived by the
offended party.

46
No. A judgment promulgated by a judge other
than the one who heard the case is valid,
provided that the judge who rendered the
judgment relied on the records taken during the
trial as a basis for his decision.
Why should the decision be in writing,
setting fort the facts and the law on which it
is based?
1. To inform the parties of the reason for the
decision so if any of them appeals, he can
point out to the appellate court the
findings of facts or the rulings on point of
law with which he disagrees. Also, so that
the appellate court will have something to
pass judgment upon.
2. To assure the parties that in reaching the
judgment, the judge did so through the
process of legal reasoning.
Is a verbal judgment valid?
No. A verbal judgment is incomplete because it
does not contain findings of fact, and it is not
signed by the judge.
It may, however, be
corrected by putting it in writing and following
the prescribed form. When it is put in writing, it
becomes a full blown judgment.
Is an erroneous judgment valid?
Yes.
Error in judgment will not invalidate a
decision, so long as it conforms with the
requirements of the law.
Is a judgment which imposes a penalty
that does not exist or one that is impossible
valid?
The judgment is void. The error goes into the
very essence of the penalty and does not merely
arise from the misapplication thereof.

If the judgment is of acquittal, the decision shall

state:

Does the judge need to designate the

particular provision of law violated?

1. whether the evidence of the prosecution

absolutely failed to prove the guilt of the
accused or merely failed to prove it
beyond reasonable doubt; and
2. if the act or omission from which the civil
liability might arise did not exist.

If possible, he should. But if he fails to do so,

the judgment is not void, as long as his
conclusions are based on some provision of law.

Is it necessary for the validity of the

judgment that the decision be promulgated
by the same judge who heard the case?

No.
The judge cannot impose alternative
penalties (using OR). The penalty imposed must
be definite. When the judge imposes alternative
penalties, giving the defendant the right to

Can the judge impose a penalty

reclusion perpetua or a fine of P10,000?

of

choose which one to serve, he gives discretion

belonging to the court to the accused.
Can the judge impose a penalty of
reclusion perpetua and a fine of P10,000?
Yes, because in this case, the penalty is definite
(it uses AND instead of OR).
What is the importance of using the
proper terminology in the imposition of
imprisonment penalties?
The judge should use the proper legal
terminology of the penalties since each penalty
has its distinct accessory penalties and effects.
What is the remedy of the offended party
if the judgment fails to award civil liability?
The offended party can appeal, go on certiorari,
or file for mandamus.
What constitutes civil liability arising from
crime?
Civil liability arising from crime includes actual
damages, moral damages, exemplary damages,
and loss of earning capacity.
When may attorneys fees be awarded?
Attorneys fees may be awarded only when a
separate civil action to recover civil liability has
been filed or when exemplary damages are
awarded. The reason for this is that there is no
attorney in a criminal case, only a public
prosecutor, who is compensated by the
government.
What is the difference between damage
and damages?
Damage refers to the actionable loss resulting
from another persons act or omission.

47
3. In contracts and quasi-contracts, if the
defendant acted in a wanton, fraudulent,
reckless,
oppressive,
or
malevolent
manner.
What are the mandatory awards in case of
rape cases?
In rape cases, a civil indemnity of P50,000 is
mandatory. An award of moral damages is also
mandatory without need or pleading or proof.
If it is qualified rape,
indemnity is P75,000.

the

mandatory

civil

What should the offended party prove do

if he wants to claim actual damages or loss
of earning capacity?
The offended party must show proof of the
amount of the pecuniary loss, such as receipts.
However, if death results from the crime or the
quasi-delict, the heirs need only to prove the fact
of death in order to claim actual or compensatory
damages.
Is there need for proof of pecuniary loss
in order that moral, nominal, temperate,
liquidated, or exemplary damages may be
adjudicated?
No. Art. 2216 of the Civil Code provides that no
proof is needed. The assessment of the damage
depends on the discretion of the court.
May damages be increased on appeal?
Yes. An appeal opens the whole case for review
by the appellate court, and this includes the
award of damages.
What are nominal damages?
Nominal damages are awarded in recognition of a
violation of a right of the plaintiff when no actual
damage was done to him.

On the other hand, damages refer to the sum of

money which can be awarded for the damage
done.

What is the civil liability of one who is

guilty of illegal possession of firearms?

When are exemplary damages awarded?

None.

1. In criminal actions, when the crime was

committed with one or more aggravating
circumstances.
2. In quasi-delicts, if the defendant acted
with gross negligence.

What is the effect of the failure of the

accused to object to a complaint or
information that charges more than one
offense before he is arraigned?

48
The court may convict him of as many offenses
as are charged and proved and impose on him
the penalty for each offense. The court must set
out separately the findings of fact and law in
each offense.

X should be convicted of homicide through

reckless imprudence. The offense done through
negligence is lesser than the one done willfully.

When does an offense charged necessarily

include the offense proved?

X was charged with rape by force and

intimidation. At the trial, it was proved that
X raped a mental retardate.
Can X be
convicted or rape of a mental retardate?

An offense charged necessarily includes an

offense proved when some of the essential
elements or ingredients of the offense charged
constitute the offense proved.
Example: Offense charged is homicide. Offense
proved is physical injuries.
Some of the
essential elements of homicide constitute
physical injuries. Therefore, the offense charged
(homicide) necessarily includes the offense
proved (physical injuries).
When is an offense charged necessarily
included in the offense proved?
An offense charged is necessarily included in the
offense proved when the essential ingredients of
the offense charged constitute or form part of the
elements constituting the offense proved.
Example:
Offense
charged
is
acts
of
lasciviousness. Offense proved is rape. The
essential ingredients of acts of lasciviousness
form part of the elements of rape. Therefore, the
offense charged (acts of lasciviousness) is
necessarily included in the offense proved (rape).
What is the rule in case the offense
charged is different from the offense
proved?
The accused can only be convicted of the lesser
offense, which is included in the graver offense
either proved or charged. The reason for this is
that the accused can only be convicted of the
offense which is both charged and proved.
Example: If the offense charged is rape and the
offense proved is acts of lasciviousness, he can
only be convicted of acts of lasciviousness. If the
offense charged is less serious physical injuries
and the offense proved is serious physical
injuries, he can only be convicted of less serious
physical injuries.
X was charged with willful homicide.
What was proved was homicide through
reckless imprudence. Under which offense
should X be convicted?

There are conflicting decisions:

People v. Abiera says that the accused charged
with rape through one mode of commission may
still be convicted of the crime if the evidence
shows another mode of commission, provided
that the accused did not object to such evidence.
People v. Padilla says that the accused cannot be
convicted of rape of a mental retardate if it is not
alleged in the information.
I think People v. Padilla is a better ruling because
to convict the accused would violate his right to
be informed of the nature and cause of the
accusation against him.
X was charged with rape.
What was
proved at the trial was qualified seduction.
Can X be convicted of qualified seduction?
No.
Although qualified seduction is a lesser
offense than rape, the elements of the two are
different. Qualified seduction is not included in
the crime of rape.
Therefore, if the court
convicts him of qualified seduction, it will violate
his right to be informed of the nature and cause
of the accusation against him, since some
elements of qualified seduction were not charged.
How is the judgment promulgated?
The judgment is promulgated by reading it in its
entirety in the presence of the accused by any
judge of the court in which it was rendered.
When the judge is absent or outside the province
or city, the judgment may be promulgated by the
clerk of court.
Can there be promulgation of judgment in
the absence of the accused?
Judgment must be promulgated in the presence
of the accused. But if the conviction is for a light
offense, judgment may be promulgated in the
presence of his counsel or representative. Also,
if the accused fails to attend the promulgation,
even if he was notified thereof, or if he jumped

bail or escaped from prison, judgment may be

validly promulgated in absentia.
What happens if only the dispositive
portion of the judgment is read to the
accused?
The first jeopardy will not validly terminate. The
judgment must be promulgated in its entirety,
not just the dispositive portion.
Where should judgment be promulgated if
the accused is confined in a province
outside of the territorial jurisdiction of the
court?
If the accused is confined or detained in another
province or city, the judgment may be
promulgated by the executive judge of the RTC
with jurisdiction over the place of confinement
upon request of the court that rendered the
decision. The court promulgating the judgment
can also accept notices of appeal and applications
for bail, unless the court that rendered the
decision changed the nature of the offense from
non-bailable to bailable, in which case, the
application for bail can only be filed with the
appellate court.
What happens if the accused fails to
appear on the date of promulgation of
judgment despite notice?
The promulgation shall be made by recording the
judgment in the criminal docket and serving the
accused a copy thereof at his last known address
or through his counsel.
If the judgment is of conviction, the accused who
fails to appear at the promulgation shall lose the
remedies available to him against the judgment,
and the court shall order his arrest.

49
1. upon motion of the accused, and
2. before judgment has become final or
appeal has been perfected.
When does a judgment become final?
Except where death penalty is imposed,
judgment becomes final:
1. after the lapse of time for perfecting an
appeal;
2. when the sentence has been partially or
totally satisfied;
3. when the accused has expressly waived in
writing his right to appeal; or
4. when the accused has applied for
probation.
X, a 16 year-old, was charged with theft.
After hearing, the court found that he
committed the acts charged. What should
the court do?
The court should determine the imposable
penalty, including the civil liability. However,
instead of pronouncing a judgment of conviction,
the court should automatically suspend the
sentence and commit the minor to the DSWD or
other institution until he reaches the age of
majority.
(And on his 18th birthday, Happy
Birthday, he will go straight to jail. This is so
strange.)
The exceptions to suspension of sentence in case
of youthful offenders are:
1. if the offender has enjoyed a previous
suspension of sentence;
2. if the offender is convicted of an offense
punishable by death or life imprisonment;
3. if the offender is convicted by a military
tribunal.

Within 15 days from promulgation, the accused

can surrender and file a motion for leave of court
to avail of these remedies. He shall state the
reason for his failure to attend the promulgation,
and if he is able to justify his absence, he shall
be allowed to avail of these remedies within 15
days from notice.

This does not apply if, at the time of sentencing,

the offender is already of age, even if he was a
minor at the time of the commission of the
offense.

When may a judgment of conviction be

modified or set aside by the court that
rendered it?

The offender should apply for probation after

conviction within the period for perfecting an
appeal.

A judgment of conviction may be modified or set

aside by the court that rendered it:

Can the defendant still file for probation if

he has already perfected an appeal?

When should an adult offender apply for

probation?

An application for probation may not be filed if

the defendant has already perfected an appeal
from the judgment of conviction.
Once the
appeal is perfected, it may no longer be
withdrawn to apply for probation.
Can the defendant still appeal if he has
filed for probation?
No. The filing of an application for probation is
deemed a waiver of the right to appeal.

50
A probation order shall take effect upon its
issuance, at which time the court shall inform the
offender of the consequences thereof and explain
that upon his failure to comply with any of the
conditions, he shall serve the penalty imposed for
the offense.
What is the effect of probation on the civil
liability of the accused?

Is the grant of probation a matter of right

upon application by the defendant?

Probation does not release civil liability.

However, in its discretion, the court may provide
for the manner of payment by the accused of the
civil liability during the period of probation.

No. It is a mere privilege, and the grant is

discretionary upon the court.

What is the duration of the period of

probation?

Can there be probation if the penalty is

merely a fine?

1. If the defendant was sentenced to

imprisonment of not more than one year,
probation shall not exceed 2 years.
2. If the term of imprisonment is more than
one year, probation shall not exceed 6
years.
3. If the penalty is only a fine and the
offender is made to serve subsidiary
imprisonment in case of insolvency, the
period of probation shall not be less than
nor be more than twice the total number
of days of subsidiary imprisonment.

Yes. In those cases where the penalty is a fine,

and the defendant cannot pay, he has to serve
subsidiary imprisonment. This is where probation
or suspension of sentence becomes relevant.
Can the defendant appeal from an order
denying the application for probation?
No.
What is the court mandated to do before
placing an accused on probation?
The court should order a post sentence
investigation to determine whether the ends of
justice and the best interest of the public will be
served by the grant of probation.
When should the court
application for probation?

deny

the

The application should be denied if the court finds

that:
1. the offender is in need of correctional
treatment that can be provided most
effectively by his commitment to an
institution;
2. there is an undue risk that during the
period or probation, the offender will
commit another crime; or
3. probation will depreciate the seriousness
of the offense committed.
When does the probation order take
effect?

Ex: Subsidiary imprisonment is 10

days. The period of probation should not
be less than 10 days but not more than 20
days.
Can the grant of probation be revoked?
Yes.
Probation is revocable before the final
discharge of the probationer by the court for
violation of any of its conditions. Once it is
revoked, the court should order the arrest of the
probationer so that he can serve the sentence
originally imposed. The period of probation is not
deducted from the penalty imposed.
Upon the lapse of the period of probation,
is the case against the probationer
automatically terminated?
No. After the period of probation, the court still
has to order the final discharge of the
probationer upon finding that he has fulfilled the
terms and conditions of his probation. Only upon
the issuance of this order is the case terminated.
What is the effect of the final discharge?

It shall operate to restore the probationer to all

civil rights lost or suspended as a result of his
conviction. His is also fully discharged of his
liability for any fine imposed as to the offense for
which probation was granted.

What are the requisites for granting a

new trial on the ground of newly discovered
evidence?

RULE 121 NEW TRIAL OR

RECONSIDERATION
What is the purpose of a new trial?
It is to temper the severity of a judgment or
prevent the failure of justice.
Distinguish between
reconsideration.

new

trial

51
granted where the incompetency of the
counsel is so great that the defendant is
prejudiced and prevented from fairly presenting
his defense and where the error of counsel is
serious.

and

In a new trial, the case is opened again, after

judgment, for the reception of new evidence and
further proceedings.
It is only proper after
rendition or promulgation of judgment.

1. The evidence must have been discovered

after trial;
2. Such evidence could not have been
discovered and produced at the trial
even with the exercise of reasonable
diligence;
3. The evidence is material, not merely
cumulative, corroborative, or impeaching;
4. The evidence must go to the merits,
such that it would produce a different
result if admitted.

In a reconsideration, the case is not reopened for

further proceeding. The court is merely asked to
reconsider its findings of law in order to make
them conformable to the law applicable to the
case.

What is a recantation? Is it a ground for a

new trial?

What are the grounds for a new trial?

It is not a ground for granting a new trial

because it makes a mockery of the court and
would place the investigation of truth at the
mercy of unscrupulous witnesses.
Moreover,
retractions are easy to extort out of witnesses.
In contrast, their previous statements are made
under oath, in the presence of the judge, and
with
the
opportunity
to
cross-examine.
Therefore, the original testimony should be given
more credence.

1. That errors of law or irregularities

prejudicial to the substantial rights of the
accused have been committed during the
trial (errors of law or irregularities);
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 (newly discovered
evidence).
3. If the case is being heard by the CA or SC,
it may determine other grounds in the
exercise of its discretion.
What are the grounds for reconsideration?
Errors of law or fact in the judgment.
Are the mistakes of counsel in conducting
the case valid grounds for a motion for a
new trial?
No. The mistakes of counsel generally bind the
client, unless he misrepresented himself as a
lawyer when he was in fact a plumber (or some
other occupation).
A new trial may also be

It is when a prior statement is withdrawn

formally and publicly by a witness.

However, the exception to this rule is when aside

from the testimony of the retracting witness,
there is not other evidence to support the
conviction of the accused.
In this case, the
retraction by the sole witness creates a doubt in
the mind of the judge as to the guilt of the
accused. A new trial may be granted.
But if there is other evidence independent of the
retracted testimony, there can be no new trial.
Distinguish between a recantation and an
affidavit or desistance.
In a recantation, a witness who previously gave a
testimony subsequently declares
that his
statements were not true.

In an affidavit of desistance, the complainant

states that he did not really intend to institute
the case and that he is no longer interested in
testifying or prosecuting.
It is a ground for
dismissing the case only if the prosecution can no
longer prove the guilt of the accused beyond
reasonable doubt without the testimony of the
offended party.
Can the accused move for a new trial if he
has found evidence that would impeach the
testimony given by a prosecution witness?
No. Evidence which merely seeks to impeach the
evidence upon which the conviction was based
will not constitute grounds for new trial. It has to
be material evidence.
When is
material?

evidence

considered

to

be

52
will stand.
The newly discovered
evidence and whatever other evidence the
court will allow to be introduced shall be
taken and considered together with the
evidence already on record.
3. In all cases whether the court grants
new trial or reconsideration the original
judgment shall be set aside or vacated
and a new judgment rendered.
Why is the accused not subjected to
double jeopardy when a new trial or
reconsideration is granted?
First, because it is only granted upon motion of
the accused. Also, the first jeopardy is never
terminated, since the original judgment is set
aside and replaced with a new one.
RULE 122 APPEAL

It is material if there is reasonable likelihood that

the testimony or evidence could have produced a
different result (the accused would have been
acquitted).
What is the form required for a motion for
new trial or motion for reconsideration?
The motion for new trial or reconsideration
should:
1. be in writing;
2. state the grounds on which it is based;
3. if based on newly discovered evidence (for
new trial), be supported by affidavits of
witnesses by whom such evidence is
expected to be given or authenticated
copies of documents to be introduced in
evidence.
Notice of the motion for new
reconsideration
should
be
given
prosecutor.

trial or
to
the

What is the effect of the grant of the

motion for new trial?
1. If it is based on errors of law or
irregularities committed during the trial,
all the proceedings and evidence affected
by the error or irregularity will be set
aside. The court may, in the interest of
justice, allow the introduction of additional
evidence. This is called trial de novo.
2. If it is based on newly discovered
evidence, the evidence already adduced

Is appeal a part of due process:

Appeal is not a part of due process except when
provided by law. If the right to appeal is granted
by law, it is statutory and must be exercised in
accordance with the procedure laid down by law.
It is compellable by mandamus.
Where should the appeal be filed?
1. If the case was decided by the MTCs,
appeal should be filed with the RTC.
2. If the case was decided by the RTC,
appeal should be filed with the CA or
SC in proper cases provided by law.
3. If the case was decided by the CA,
appeal should be filed with the SC.

the
the
the
the

Can the prosecution appeal a judgment of

acquittal?
No.
A judgment of acquittal becomes final
immediately after promulgation. It cannot even
be the subject of certiorari. The reason for this
rule is that an appeal would place the accused in
double jeopardy. However, the offended party
may appeal the civil aspect of the case.
How is appeal taken?
APPEAL TO
RTC

FROM
THE
DECISION OF
MTC

HOW?
File a notice
of appeal with
the MTC and
serve a copy

CA

CA

SC

SC

RTC
in
exercise of
original
jurisdiction

the
its

RTC
in
the
exercise of its
appellate
jurisdiction
RTC where the
penalty imposed
is
reclusion
perpetua or life
imprisonment, OR
where a lesser
penalty
is
imposed
for
offenses
committed on the
same occasion or
which arose out
of
the
same
occurrence
that
gave rise to the
offense
punishable
by
death,
reclusion
perpetua or life
imprisonment
RTC imposing the
death penalty

SC

All other appeals,

except the two
cases above

SC

Sandiganbayan

of the notice
to
the
adverse party
File a notice
of appeal with
the RTC and
serve a copy
of the notice
to
the
adverse party
File a petition
for
review
with the CA
under Rule 42
File a notice
of appeal with
the RTC and
serve a copy
of the notice
to
the
adverse party

53
also appeal to the SC because although the
penalty imposable is not death, the offense arose
out of the same occurrence that gave rise to the
offense punishable by death. The reason for this
rule is so that only one court will review on
appeal the single case involving different
defendants. This would prevent a variance or
conflict in the decisions of the SC and the CA.
How is an appeal perfected?
An appeal is perfected by filing a notice of appeal
with the court in which the judgment or order
was rendered, and by serving a copy thereof
upon the adverse party or his attorney within the
period for perfecting an appeal.
Within what
perfected?

period

must

appeal

be

An appeal must be perfected within 15 days from

promulgation of the judgment or from notice of
the final order appealed from.
What is the effect of the perfection of an
appeal?
When an appeal has been perfected, the court a
quo loses jurisdiction.
What is the difference between the appeal
of a judgment and the appeal of an order?

Automatic
review by the
SC
Petition
for
review
on
certiorari
under Rule 45
Petition
for
review
on
certiorari
under Rule 45

A, B, C, D, and E were all charged with

murder, punishable by death. A, B, and C
were charged as principals. D was charged
as an accomplice. E was charged as an
accessory. All of them were convicted. To
whom should they appeal?
A, B, and Cs case will be automatically reviewed
by the SC without need for notice of appeal, since
the penalty imposable is death. D and E should

The appeal from a judgment must be perfected

within 15 days from promulgation. The appeal
from an order should be perfected within 15 days
from notice of the final order.
A and B were convicted of murder. Only A
appealed from the conviction. Should the
decision of the appellate court bind B?
It depends. If the decision of the appellate court
would be beneficial to B, it should affect him.
But if the decision would not benefit him, it
should not bind him.
What is the effect of the appeal by the
offended party of the civil aspect of the
judgment on the criminal aspect?
Nothing.
Can an appeal that has already been
perfected by withdrawn by the appellant?
If the records have not yet been transmitted to
the appellate court, the court that rendered the

judgment has the discretion to allow the

appellant to withdraw the appeal. If the appeal is
withdrawn, the judgment shall become final.
If the records have already been transmitted to
the appellate court, only the appellate court may
decide whether to grant the motion to withdraw
the appeal, and only before the judgment is
rendered in the case on appeal.
Is counsel de oficio still required to
represent his client on appeal?
Yes. The duty of counsel de oficio does not
terminate upon judgment of the case.
It
continues until appeal.
RULE 123 PROCEDURE IN THE MUNICIPAL
TRIAL COURTS

54
h. motion to declare the defendant
in default;
i. dilatory motions for postponement;
j. reply;
k. third-party complaints;
l. interventions.
RULE 126 SEARCH AND SEIZURE
What is a search warrant?
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 therein
and bring it before the court.
Distinguish between a search warrant and
a warrant of arrest.

Important stuff:
1. Preliminary
conference:
Before
conducting the trial, the court shall call
the parties to a preliminary conference
during which:
a. a stipulation of facts may be
entered into,
b. the propriety of allowing the
accused to plead guilty to a lesser
offense may be considered, and
c. other matters may be taken up to
clarify the issues and to ensure a
speedy disposition of the case.
2. Prohibited pleadings and motions:
a. motion to dismiss the complaint or
to
quash
the
complaint
or
information on the ground of lack
of jurisdiction over the subject
matter, or failure to refer the case
to the lupon.
b. Motion for a bill or particulars
c. motion for new trial, or for
reconsideration of a judgment, or
for reopening of trial;
d. petition for relief from judgment;
e. motion for extension of time to file
pleading, affidavits, or any other
paper;
f. memoranda;
g. petition for certiorari, mandamus,
or
prohibition
against
any
interlocutory order issued by the
court;

SEARCH WARRANT
The applicant must
show:

WARRANT OF ARREST
The
applicant
must
show:

1. that the items

sought are in
fact
seizable
by virtue of
being
connected
with criminal
activity; and

1. probable
cause
that an offense
has
been
committed; and

2. that the items

will be found
in the place to
be searched.
The
judge
must
conduct a personal,
searching
examination of the
applicant
and
his
witnesses

2. that the person to

be
arrested
committed it

The judge need not

conduct
a
personal
examination
of
the
applicant
and
his
witnesses. He may rely
on the affidavits of the
witnesses
and
the
recommendation of the
prosecutor.

Why are the requirements for the

issuance of a search warrant more stringent
than the requirements for the issuance of a
warrant of arrest?
The violation of the right to privacy produces a
humiliating effect which cannot be rectified
anymore.
This is why there is no other
justification for a search, except a warrant. On
the other hand, in a warrant of arrest, the person

to be arrested can always post bail to prevent the

deprivation of liberty.
Where should the application for search
warrant be filed?
As a general rule, it should be filed with the court
within whose territorial jurisdiction the crime was
committed.
But for compelling reasons, it can be filed with
the court within whose judicial region the offense
was committed or where the warrant is to be
served.
Example of this:
The drug syndicate
stores its drugs in Pasay.
It has
connections in Pasay and can easily get a
tip when the police officers will file for a
search warrant.
To avoid the drug
syndicate from getting a tip of the
impending search, the police officer may
apply for a search warrant in Makati
(within the RTC region), stating the
compelling reason.
But, if the criminal action has already been filed,
the application for a search warrant can only be
made in the court where the criminal action is
pending.

55
6. the sworn statements together with
the affidavits of the witnesses must be
attached to the record.
When is the affidavit or testimony of the
witness said to be based on personal
knowledge?
The test is whether perjury could be charged
against the witness.
Is it necessary that the person named in
the search warrant be the owner of the
things to be seized?
No. Ownership is of no consequence. What is
relevant is that the property is connected to an
offense.
What are the requisites of the personal
examination that the judge must conduct
before issuing the search warrant?
The judge must:
1. examine the witnesses personally;
2. under oath;
3. and reduced to writing in the form of
searching questions and answers.
What is a scatter shot warrant?

What may be the subject of a search

warrant?
Personal property, which is:
1. subject of the offense,
2. stolen or embezzled and other proceeds or
fruits of the offense, or
3. used or intended to be used as the means
of committing an offense.
What are the requisites for issuing a
search warrant?
1. There must be probable cause
2. Which must be determined personally
by the judge
3. upon personal examination in writing
and under oath of the complainant and his
witnesses in the form of searching
questions and answers on facts
personally known to them
4. the probable cause must be in connection
with one specific offense
5. particularly describing the place to be
searched and the items to be seized

It is a warrant of arrest that is issued for more

than one offense.
It is void, since the law
requires that a warrant of arrest should only be
issued in connection with one specific offense.
A warrant was issued for the seizure of
drugs connected with violation of the
Dangerous Drugs Law.
Is the warrant
valid?
The warrant is valid. Although there are many
ways of violating the Dangerous Drugs Law, it is
not a scatter shot warrant since it is in
connection with only one penal law.
Police officers applied for a warrant to
search Door #1 of an apartment complex.
The court issued the warrant. When the
went to the apartment complex, they
realized that what they thought was Door
#1 was actually Door #7. Can they search
Door #7?
No. What is controlling is what is stated in the
warrant, not what the peace officers had in mind,
even if they were the ones who gave the

description to the court.

This is to prevent
abuses in the service of search warrants.
Can the police officer seize anything that
is not included in the warrant?
No. Anything not included in the warrant cannot
be seized EXCEPT if it is mala prohibita, in which
case, the seizure can be justified under the plain
view doctrine.
Even if the object was related to the crime, but it
is not mentioned in the warrant nor is it mala
prohibita, it still cannot be seized.
Police officers went to a house to execute
a search warrant. They found a pistol on
the table, but the pistol was not included in
the search warrant.
Can they seize the
pistol?

56
No. If the purpose for which it was issued has
already been carried out, the warrant cannot be
used anymore. The exception is if the search
was not finished within one day, the warrant can
still be used the next day, provided that it is still
within the 10-day period.
SUMMARY
1. The Constitution does not prohibit all
kinds of searches and seizures. It only
prohibits unreasonable searches and
seizures.
2. A search and seizure is unreasonable if it
is made without a warrant, or the warrant
was invalidly issued.
3. A search and seizure without a warrant is
still reasonable if conducted under the
following circumstances:
a. Incident to a lawful arrest

No. It is not mala prohibita, and they have no

proof that it is unlicensed.
What should the police officer or court do
to things seized illegally?

It must be made AFTER the

arrest. The objective is to make
sure that the life of the peace
officer will not be endangered.

Anything seized illegally must be returned to the

owner unless it is mala prohibita. In this case, it
should be kept in custodia legis.

It must be contemporaneous
with the arrest in both time and
place.

When should the search

executed?

warrant

be

b. Search of moving vehicles

c. Consent searches

If possible, it should be executed during the

daytime. But in certain cases, such as when the
things to be seized are mobile or are in the
person of the accused, it can be served during
nighttime.

Only the person whose right

may be violated can give the
consent; it is a personal right.

For how long is the search warrant valid?

(1)
The
person
has
knowledge of his right against the
search;
(2) He freely gives his
consent in spite of such knowledge.

It is valid for 10 days, after which the peace

officer should make a return to the judge who
issued it. If the peace officer does not make a
return, the judge should summon him and
require him to explain why no return was made.
If the return was made, the judge should
determine if the peace officer issued a receipt to
the occupant of the premises from which the
things were taken. The judge shall also order the
delivery to the court of the things seized.
If the warrant was executed even before
the expiration of the ten-day period, can the
peace officer use the warrant again before it
expires?

The requisites are:

d. Objects in plain view

Requisites:
(1) There must have been a
prior valid intrusion, and
the officer must have had
a right to be at the place
searched at the time of
the search;
(2) The
evidence
was
inadvertently discovered;

57
(3) The evidence must be
immediately apparent;
(4) There was no need for
further search.
e. Customs searches
f. Stop
and
Frisk/
circumstances
g. Emergency

Exigent