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CRIMINAL PROCEDURE
PRELIMINARY CHAPTER
What is criminal procedure?
It is a method fixed by law for the apprehension,
prosecution of one who is charged of criminal offense
and provides for his punishment.
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 the sources of criminal procedure?
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 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 determine a controversy involving rights which are
demandable and enforceable.
Distinguish jurisdiction from venue.
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 a valid exercise of criminal
jurisdiction?
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 the time when
the action is filed, not when the offense was committed.
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The exception to this rule is where jurisdiction is
dependent on the 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?
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.
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?
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:
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
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
What is the meaning of the term regular courts?
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Regular courts refer to civil courts as opposed to military
courts or courts martial. Military courts have no
jurisdiction over civilians.
Which court has jurisdiction over a complex crime?
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.
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?
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.

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.
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 from commencement of an
action.
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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 are amicable settlements not allowed?
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 for the complaint or
information?

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?
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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?
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
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 Anti-Dummy Law, National Water and Air
Pollution Control Commission with respect to the Anti-
Pollution Law).
What is an information?
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 between a complaint and an
information?
COMPLAINT INFORMATION
May be signed by the Always signed by
offended party, any peace prosecuting officer
officer, or other public
officer charged with the
enforcement of the law
violated
Sworn to by the person Need not be under oath
signing it since the prosecuting officer
filing it is already acting
under his oath of office
May be filed either with Always filed with the court
the office of the
prosecutor or with the
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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?
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. What case to file
2. Whom to prosecute
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3. The manner of prosecution
4. 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. The suspension of arraignment
2. Reinvestigation
3. Prosecution by the prosecutor
4. Dismissal
5. 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
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?
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.
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.
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
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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 or information deemed
sufficient?
A complaint or information is sufficient if it states:
1. the name of the accused
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 30-meter radius of
polling places)
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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?
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 one offense,
except when the law provides only one punishment for
various offenses (compound and complex crimes under
Art. 48 of the RPC and special complex crimes).
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.

10
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
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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 between amendment and
substitution?
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?
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

11
What are substantial amendments?
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.
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 a criminal action be instituted?
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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 is a continuing or transitory offense?
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.
How do you determine jurisdiction over a continuing
crime?
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.
d. If the offended party is a public officer whose office is
outside Manila, the action may be filed in the RTC of the

12
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.
Can the offended party file a civil action for certiorari
in his own name if the RTC dismisses an information?
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.
RULE 111 PROSECUTION OF CIVIL ACTION
What is the general rule?
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
What is the civil action that is deemed instituted with
the criminal action?
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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 quasi-delicts
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, quasi-delict is broader in
scope.
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?
The reservation should be made before the prosecution
presents its evidence and under circumstances affording

13
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 the separate civil action suspended?
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.
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
Lee Matias Page |
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.
What are the independent civil actions?
The independent civil actions are those provided in
Articles 32, 33, 34, and 2176 of the Civil Code. 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

14
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.
When is an action for annulment of marriage
prejudicial to a bigamy case?
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
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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 scope of preliminary investigation?
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.

15
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.
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If the complaint or information is substituted, should
a new preliminary investigation be conducted?
Yes.
Who may conduct a preliminary investigation?
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.
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,

16
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 the preliminary
investigation mandatory?
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?
If there was no preliminary investigation conducted,
what is the remedy of the accused?
Lee Matias Page |
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 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
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.

17
(RICA P)
1. Refuse to enter plea
2. Insist on a preliminary investigation
3. File certiorari if refused
4. Raise it as an error on appeal
5. 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.
Lee Matias Page |
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. post bail
2. ask for reinvestigation
3. petition for review
4. motion to quash the information
5. 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 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.

18
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?
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
Lee Matias Page |
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 a warrant of arrest not necessary?
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

19
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 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.
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What is an inquest?
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 are the guidelines to safeguard the rights of an
accused who has been arrested without a warrant?
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 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

20
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?
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.
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?
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
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has escaped while being transferred from one
confinement to another.
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?
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.
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?
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.
SECTION 114 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. corporate surety
2. property bond
3. cash deposit
4. recognizance

21
What is recognizance?
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.
When is bail a matter of right and when is it a matter
of discretion?
In the MTC, it is a matter of right before or after
conviction, regardless of the offense.
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 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
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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.
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. Financial ability of the accused
2. Nature and circumstances of the offense
3. Penalty for the offense
4. Character and reputation of the accused
5. Age and health of the accused
6. Weight of evidence against the accused
7. Probability of the accused appearing at the trial
8. Forfeiture of other bail

22
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.
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;
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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.
Due Process
What are the two aspects of the right to due process?
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.

23
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
What is the meaning of the right of presumption of
innocence?
The right means that the presumption must be overcome
by evidence of guilt beyond reasonable 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 self-defense is
presumed guilty. The burden of proving the
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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?
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.
Can the right to be present at the trial be waived?
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

24
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?
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.
But in US v. Escalante and People v. Nang Kay (p. 532 of
Herrera Textbook), the Court held that 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 counsel-de-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.
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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 self-incrimination,
and when can they invoke the right?

25
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 cross-
examination relates to a crime different from that
with which he was charged, he 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
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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.
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.)
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:

26
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?
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 cross-examine 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 cross-examine before the subsequent
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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
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 trial should be conducted
according to the law of criminal procedure and the rules
and regulations, free from vexations, capricious, and
oppressive delays.
When should the arraignment and pre-trial be held?
According to the Speedy Trial Act and Circular 38-98,
arraignment and pre-trial if the accused 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?

27
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?
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?
Yes. The court may bar the public in certain cases, such
as when the evidence to be presented may be offensive
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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?
The accused must be arraigned before the court where
the complaint was filed or assigned for trial.

28
How is arraignment made?
Arraignment is made:
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 commenced
within 3 days from arraignment.
3. When the accused is under preventive detention,
his case shall be raffled and its records
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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 duty-bound 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

29
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. 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.
When can the accused plead guilty to a lesser
offense?
At arraignment, the accused may plead guilty to a lesser
offense which is necessarily included in the offense
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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?
It is mitigating if made before the prosecution starts to
present evidence.
What is the meaning of the duty of the judge to
conduct a searching inquiry?
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

30
exists a rational basis for a finding of guilt based on his
testimony.
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 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
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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. He pleads guilty, but tells
the judge hindi ko sinasadya. Is his plea valid?
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?

31
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?
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?
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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 the purpose of a bill of particulars?
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.

32
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.
What is the form required for a motion to quash?
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.
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.
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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)
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?
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.
What is meant by the statement that a motion to
quash hypothetically admits allegations of fact in the
information?
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.
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33

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 authority of the officer signing it cannot be cured
by silence, acquiescence, express consent, or even
amendment.
Under Article 89 of the RPC, criminal liability is
extinguished by:
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. The criminal
liability of Y subsists. The death of one of several accused
will not be a cause for dismissal of the criminal action as
against the other accused.
What is the effect of the death of the offended party
on the criminal liability of the 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 does the death of the offended
party in private crimes abate the prosecution.

What happens if the defendant enters his plea before What are the means by which criminal liability is
filing a motion to quash? partially extinguished?

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. 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?

1. failure to charge an offense AMNESTY PARDON

2. lack of jurisdiction over the offense TYPE OF OFFENSE Political Infractions of the
3. extinction of criminal liability offenses peace (common
4. double jeopardy crimes)
BENEFICIARY Classes of An individual
How is criminal liability extinguished? persons
CONCURRENCE OF Necessary Not necessary
CONGRESS
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34

ACCEPTANCE Beneficiary Need for distinct for a single crime of rape cannot extend to the other acts
need not acts of of rape.
accept acceptance on
the part of the If the offender in rape is the legal husband of the
pardonee offended party, how can the husbands criminal liability
JUDICIAL NOTICE Courts take Courts do not be extinguished?
judicial notice take judicial
because it is a notice because it The subsequent forgiveness by the wife shall extinguish
public act is a private act of the criminal action or the penalty. But the penalty shall
the President. not be abated if the marriage is void ab initio.
Therefore, it
must be proved Why is prescription a ground for a motion to quash?
in court.
EFFECT Abolishes the Relieves the This is meant to exhort the prosecution not to delay;
offense (looks offender from otherwise, they will lose the right to prosecute. It is also
backward) the meant to secure the best evidence that can be obtained.
consequences of
the offense What are the prescriptive periods of crimes?
(looks forward)
WHEN IT MAY BE Before or after Only after OFFENSE PRESCRIPTIVE PERIOD
GRANTED prosecution conviction by Punishable by death, 20 years
final judgment reclusion perpetua, or
reclusion temporal
What is the effect of absolute pardon upon criminal Punishable by other 10 years
liability? afflictive penalties
Punishable by arresto 5 years
Absolute pardon blots out the crime. It removes all mayor
disabilities resulting from the conviction, such as the Libel or other similar 2 years
political rights of the accused. offenses
Oral defamation and 6 months
What is the effect of pardon by the offended party slander by deed
upon criminal liability? Light offenses 2 months

As a general rule, pardon by the offended party does not Can the accused still raise prescription as a defense
extinguish criminal liability. Only civil liability is even after conviction? Can the defense of prescription
extinguished by express waiver of the offended party. be waived?

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.
What is the effect of marriage of the offender with
the offended party in private crimes?
It shall extinguish the criminal action or remit the penalty
already imposed. This applies even to co-principals,
accomplices, and accessories.
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
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.
What is the proper action of the court when the
accused raises the defense of prescription?
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.

35
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.
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
Lee Matias Page |
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. Valid complaint or information
2. Court of competent jurisdiction
3. Arraignment
4. Valid plea
5. 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?

36
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
Lee Matias Page |
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.
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

37
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 between dismissal and acquittal.
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
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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
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.

38
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
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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 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.
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39

Reckless imprudence resulting in damage to property and It depends. If the death of the victim can be traced to the
serious or less serious physical injuries is only one acts of X, and the victim did not contribute to his death
offense. If it is slight physical injuries, it can be broken with his negligence, X can be charged with homicide. This
down into two offenses, since a light offense cannot be is a supervening fact. But if the act of X was not the
complexed. proximate cause of death, he cannot be charged with
homicide.
X installed a jumper cable which allowed him to
reduce his electricity bill. He was prosecuted for X was charged with reckless imprudence resulting in
violating a municipal ordinance against unauthorized homicide and was acquitted. The heirs of the victim
installation of the device. He was convicted. Can he still appealed the civil aspect of the judgment. X claims that
be prosecuted for theft? the appeal will place him in double jeopardy. Is X
correct?
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 No. There was no second jeopardy. What was elevated
other. (But remember, that there has to be either on appeal was the civil aspect of the case, not the
conviction or acquittal. Dismissal without the express criminal aspect. The extinction of criminal liability
consent of the accused is not sufficient). whether by prescription or by the bar of double jeopardy
does not carry with it the extinction of civil liability arising
What are the exceptions to double jeopardy? When
can the accused be charged with a second offense which from the offense charged.
necessarily includes the offense charged in the former
complaint or information?
X was charged with murder and was acquitted. Can
the prosecution appeal the acquittal?
The conviction of the accused shall not be a bar to
another prosecution for an offense which necessarily
No. The prosecution cannot appeal the acquittal, since it
includes the offense charged in the former complaint or
would place the accused in double jeopardy.
information under any of the following circumstances:
Even if the decision of acquittal was erroneous, the
1. the graver offense developed due to supervening
prosecution still cannot appeal the decision. It would still
facts arising from the same act or omission
place the accused in double jeopardy.
constituting the former charge;
2. the facts constituting the graver charge became
When can the prosecution appeal despite the
known or were discovered only after a plea was
dismissal or termination of the case?
entered in the former complaint or information;
3. the plea of guilty to the lesser offense was made
As a general rule, the dismissal or termination of the case
without the consent of the prosecutor and the
after arraignment and plea of the defendant to a valid
offended party except if the offended party fails
information shall be a bar to another prosecution for the
to appear at the arraignment.
same offense, an attempt or frustration thereof, or one
included or which includes the previous offense. The
What is the doctrine of supervening fact?
exceptions are:
If, after the first prosecution, a new fact supervenes on
1. if the dismissal of the first case was made upon
which the defendant may be held liable, altering the
motion or with the express consent of the
character of the crime and giving rise to a new and
defendant, unless the grounds are insufficiency of
distinct offense, the accused cannot be said to be in
evidence or denial of the right to speedy trial;
second jeopardy if indicted for the new offense.
2. if the dismissal is not an acquittal or based upon
consideration of the evidence or of the merits of
X was charged with frustrated homicide. There was
the case; and
nothing to indicated that the victim was going to die. X
3. the question to be passed upon by the appellate
was arraigned. Before trial, the victim dies. Can X be
court is purely legal so that should the dismissal
charged with homicide?
be found incorrect, the case would have to be

40
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?
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 a case be provisionally dismissed?
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 the provisional dismissal become final?
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.
When should it be conducted?
After arraignment and within 30 days from the date the
court acquires jurisdiction over the person of the
accused.
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What happens during pre-trial?
The following things are considered:
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 pre-trial
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? Why is it encouraged?
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.

41
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 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.
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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 co-accused 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

42
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
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.
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,
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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?
a 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 sur-rebuttal
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.

43
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 self-defense. 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.
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
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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 cross-examine 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 of the prosecution before
resting its case.
What is the procedure?
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.

44
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.
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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 co-
conspirator, 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?
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45

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.
What are the ways by which a case may be dismissed
on the basis of insufficiency of evidence of the
prosecution?
There are two ways:
What is the remedy of the accused if the demurrer to
evidence is denied?
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.

1. the court may dismiss the case on its own When can a case be reopened?
initiative after giving the prosecution the right to
be heard; or At any time before finality of judgment of conviction, the
2. upon demurrer to evidence filed by the accused judge may reopen the case either on his own volition or
with or without leave of court. 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 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.

46
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 the form required for the judgment?
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.
If the judgment is of acquittal, the decision shall state:
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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.
Is it necessary for the validity of the judgment that
the decision be promulgated by the same judge who
heard the case?
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.
Does the judge need to designate the particular
provision of law violated?

47
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.
Can the judge impose a penalty of reclusion perpetua
or a fine of P10,000?
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 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.
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On the other hand, damages refer to the sum of money
which can be awarded for the damage done.
When are exemplary damages awarded?
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.
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, the mandatory civil indemnity is
P75,000.
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.

48
What is the civil liability of one who is guilty of illegal
possession of firearms?
None.
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?
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.
When does an offense charged necessarily include
the offense proved?
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
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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?
X should be convicted of homicide through reckless
imprudence. The offense done through negligence is
lesser than the one done willfully.
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?
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.

49
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.
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.
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When may a judgment of conviction be modified or
set aside by the court that rendered it?
A judgment of conviction may be modified or set aside by
the court that rendered it:
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.
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 should an adult offender apply for probation?
The offender should apply for probation after conviction
within the period for perfecting an appeal.

50
Can the defendant still file for probation if he has
already perfected an appeal?
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.
Is the grant of probation a matter of right upon
application by the defendant?
No. It is a mere privilege, and the grant is discretionary
upon the court.
Can there be probation if the penalty is merely a fine?
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 deny the application for
probation?
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.
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When does the probation order take effect?
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?
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.
What is the duration of the period of probation?
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.
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?

51
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.
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 new trial and reconsideration.
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.
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 are the grounds for a new trial?
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 granted where the incompetency of the
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counsel is so great that the defendant is prejudiced and
prevented from fairly presenting his defense and where
the error of counsel is serious.
What are the requisites for granting a new trial on
the ground of newly discovered evidence?
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.
What is a recantation? Is it a ground for a new trial?
It is when a prior statement is withdrawn formally and
publicly by a witness.
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.
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
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52

reasonable doubt without the testimony of the offended be set aside or vacated and a new judgment
party. rendered.

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 evidence considered to be material?
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?
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
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.

The motion for new trial or reconsideration should: Where should the appeal be filed?

1. be in writing; 1. If the case was decided by the MTCs, the appeal

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.
should be filed with the RTC.
2. If the case was decided by the RTC, the appeal
should be filed with the CA or the SC in proper
cases provided by law.
3. If the case was decided by the CA, the appeal
should be filed with the SC.

Notice of the motion for new trial or reconsideration Can the prosecution appeal a judgment of acquittal?
should be given to the prosecutor.
No. A judgment of acquittal becomes final immediately
What is the effect of the grant of the motion for new after promulgation. It cannot even be the subject of
trial? certiorari. The reason for this rule is that an appeal
would place the accused in double jeopardy. However,
1. If it is based on errors of law or irregularities the offended party may appeal the civil aspect of the
committed during the trial, all the proceedings case.
and evidence affected by the error or irregularity
will be set aside. The court may, in the interest of How is appeal taken?
justice, allow the introduction of additional
evidence. This is called trial de novo. APPEAL TO FROM THE HOW?
DECISION OF
2. If it is based on newly discovered evidence, the RTC MTC File a notice of
evidence already adduced will stand. The newly appeal with the
discovered evidence and whatever other MTC and serve a
evidence the court will allow to be introduced copy of the
shall be taken and considered together with the notice to the
evidence already on record. adverse party
CA RTC in the exercise File a notice of
3. In all cases whether the court grants new trial of its original appeal with the
or reconsideration the original judgment shall jurisdiction RTC and serve a
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53

copy of the
notice to the How is an appeal perfected?
adverse party
CA RTC in the exercise File a petition for An appeal is perfected by filing a notice of appeal with
of its appellate review with the the court in which the judgment or order was rendered,
jurisdiction CA under Rule and by serving a copy thereof upon the adverse party or
42 his attorney within the period for perfecting an appeal.
SC RTC where the File a notice of
penalty imposed is appeal with the Within what period must appeal be perfected?
reclusion perpetua RTC and serve a
or life copy of the An appeal must be perfected within 15 days from
imprisonment, OR notice to the promulgation of the judgment or from notice of the final
where a lesser adverse party order appealed from.
penalty is imposed
for offenses What is the effect of the perfection of an appeal?
committed on the
same occasion or When an appeal has been perfected, the court a quo
which arose out of loses jurisdiction.
the same
occurrence that What is the difference between the appeal of a
gave rise to the judgment and the appeal of an order?
offense punishable
by death, reclusion The appeal from a judgment must be perfected within 15
perpetua or life days from promulgation. The appeal from an order
imprisonment should be perfected within 15 days from notice of the
SC RTC imposing the Automatic final order.
death penalty review by the SC
SC All other appeals, Petition for A and B were convicted of murder. Only A appealed
except the two review on from the conviction. Should the decision of the
cases above certiorari under appellate court bind B?
Rule 45
SC Sandiganbayan Petition for It depends. If the decision of the appellate court would
review on be beneficial to B, it should affect him. But if the decision
certiorari under would not benefit him, it should not bind him.
Rule 45
What is the effect of the appeal by the offended party
of the civil aspect of the judgment on the criminal
A, B, C, D, and E were all charged with murder, aspect?
punishable by death. A, B, and C were charged as
principals. D was charged as an accomplice. E was Nothing.
charged as an accessory. All of them were convicted.
To whom should they appeal? Can an appeal that has already been perfected by
withdrawn by the appellant?
A, B, and Cs case will be automatically reviewed by the
SC without need for notice of appeal, since the penalty If the records have not yet been transmitted to the
imposable is death. D and E should also appeal to the SC appellate court, the court that rendered the judgment
because although the penalty imposable is not death, the has the discretion to allow the appellant to withdraw the
offense arose out of the same occurrence that gave rise appeal. If the appeal is withdrawn, the judgment shall
to the offense punishable by death. The reason for this become final.
rule is so that only one court will review on appeal the
single case involving different defendants. This would If the records have already been transmitted to the
prevent a variance or conflict in the decisions of the SC appellate court, only the appellate court may decide
and the CA. whether to grant the motion to withdraw the appeal, and
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54

only before the judgment is rendered in the case on What is a search warrant?
appeal.
It is an order in writing issued in the name of the People
Is counsel de oficio still required to represent his of the Philippines, signed by a judge and directed to a
client on appeal? peace officer, commanding him to search for personal
property described therein and bring it before the court.
Yes. The duty of counsel de oficio does not terminate
upon judgment of the case. It continues until appeal. Distinguish between a search warrant and a warrant
of arrest.
RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS
SEARCH WARRANT WARRANT OF ARREST
Important stuff: The applicant must show: The applicant must show:

1. Preliminary conference: Before conducting the 1. that the items 1. probable cause that
trial, the court shall call the parties to a sought are in fact an offense has been
preliminary conference during which: seizable by virtue committed; and
of being
a. a stipulation of facts may be entered into, connected with 2. that the person to be
b. the propriety of allowing the accused to criminal activity; arrested committed
plead guilty to a lesser offense may be and it
considered, and
c. other matters may be taken up to clarify 2. that the items
the issues and to ensure a speedy will be found in
disposition of the case. the place to be
searched.
2. Prohibited pleadings and motions: The judge must conduct a The judge need not conduct
personal, searching a personal examination of
a. motion to dismiss the complaint or to examination of the the applicant and his
quash the complaint or information on applicant and his witnesses. He may rely on
the ground of lack of jurisdiction over the witnesses the affidavits of the
subject matter, or failure to refer the witnesses and the
case to the lupon. recommendation of the
b. Motion for a bill or particulars prosecutor.
c. motion for new trial, or for
reconsideration of a judgment, or for Why are the requirements for the issuance of a
reopening of trial; search warrant more stringent than the requirements
d. petition for relief from judgment; for the issuance of a warrant of arrest?
e. motion for extension of time to file
pleading, affidavits, or any other paper; The violation of the right to privacy produces a
f. memoranda; humiliating effect which cannot be rectified anymore.
g. petition for certiorari, mandamus, or This is why there is no other justification for a search,
prohibition against any interlocutory except a warrant. On the other hand, in a warrant of
order issued by the court; arrest, the person to be arrested can always post bail to
h. motion to declare the defendant in prevent the deprivation of liberty.
default;
i. dilatory motions for postponement; Where should the application for search warrant be
j. reply; filed?
k. third-party complaints;
l. interventions. As a general rule, it should be filed with the court within
whose territorial jurisdiction the crime was committed.

RULE 126 SEARCH AND SEIZURE


55
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.
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
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?
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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?
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.
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56

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?
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?
Anything seized illegally must be returned to the owner
unless it is mala prohibita. In this case, it should be kept
in custodia legis.
When should the search warrant be executed?
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.
3. A search and seizure without a warrant is still
reasonable if conducted under the following
circumstances:
a. Incident to a lawful arrest
It must be made AFTER the arrest. The
objective is to make sure that the life of
the peace officer will not be endangered.
It must be contemporaneous with the
arrest in both time and place.
b. Search of moving vehicles
c. Consent searches
Only the person whose right may be
violated can give the consent; it is a
personal right.
The requisites are:

For how long is the search warrant valid? (1) The person has knowledge of
his right against the search;
It is valid for 10 days, after which the peace officer should (2) He freely gives his consent in
make a return to the judge who issued it. If the peace spite of such knowledge.
officer does not make a return, the judge should summon
him and require him to explain why no return was made. d. Objects in plain view
If the return was made, the judge should determine if the
peace officer issued a receipt to the occupant of the Requisites:
premises from which the things were taken. The judge
shall also order the delivery to the court of the things (1) There must have been a prior
seized. valid intrusion, and the officer
must have had a right to be at
If the warrant was executed even before the the place searched at the time
expiration of the ten-day period, can the peace officer of the search;
use the warrant again before it expires? (2) The evidence was inadvertently
discovered;
No. If the purpose for which it was issued has already (3) The evidence must be
been carried out, the warrant cannot be used anymore. immediately apparent;
The exception is if the search was not finished within one (4) There was no need for further
day, the warrant can still be used the next day, provided search.
that it is still within the 10-day period.
e. Customs searches
SUMMARY f. Stop and Frisk/ Exigent circumstances
g. Emergency
1. The Constitution does not prohibit all kinds of
searches and seizures. It only prohibits
unreasonable searches and seizures. CRIMINAL PROCEDURE
2. A search and seizure is unreasonable if it is made
without a warrant, or the warrant was invalidly
Rule 110 PROSECUTION of Offenses
issued.
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57

1. General Rule: MTC and RTC courts gain jurisdiction 1. Continuing crimes committed in different judicial
over the offense upon the filing of complaint by a regions
complainant or an information by the prosecuting officer 2. Offenses wherein any of the essential elements
were committed in different territorial jurisdictions
Court gains jurisdiction over the person of the accused 3. Offenses committed aboard a train, vehicle,
upon arrest or surrender; such jurisdiction once gained aircraft or vessel (see R110, 15)
cannot be lost even if accused escapes (Gimenez vs.
i. Railroad, train, aircraft
Nazareno)
Jurisdiction of the court over the offense is determined (1) Territory or municipality where vehicle passed
at the time of the institution of the action and is retained
even if the penalty for the offense is later lowered or (2) Place of departure
raised (People vs. Lagon)
2. Complaint sworn written statement charging a (3) Place of arrival
person with an offense, subscribed by the offended party,
ii. Vessel
any peace officer or other public official charged with the
enforcement of the law violated
(1) First port of entry
Information accusation in writing charging a person
with an offense, subscribed by the fiscal and filed with (2) Thru which it passed during voyage
the court
e. Libel and written defamation
3. Complaint and Information distinguished:
5. Remedies of offended party when fiscal unreasonably
Complaint Information refuses to file an information or include a person therein
as an accused
Need not be sworn
A sworn statement to 1. In case of grave abuse of discretion, action
Subscribed by the for mandamus
offended party, any 2. Lodge a new complaint against the offenders
peace officer or 3. Take up matter with the Secretary of Justice
other officer charged 4. Institute administrative charges against the erring
with the fiscal
enforcement of the Subscribed to by the 5. File criminal charges under Art. 208, RPC
law violated fiscal (prosecution of offenses)
May be filed either 6. File civil action under Art. 27, NCC for damages (PO
with the court or in refuses or neglects to perform official duty)
the fiscals office 7. Secure appointment of another fiscal
generally to 8. Institute another criminal action if no double
commence the jeopardy is involved
preliminary
investigation of the 6. Writs of injunction or prohibition to restrain a criminal
charges made Filed with the court prosecution are not available, EXCEPT

4. Cases where civil courts of equal rank are vested with
concurrent jurisdiction:
1. Features stated in Art. 2, RPC
Cognizable by proper court in which charge is first filed
1. To afford adequate protection to constitutional
rights of accused
2. Necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions
3. Pre-judicial question which is sub judice

58
4. Acts of the officer are without or in excess of
authority
5. Prosecution is under an invalid law, ordinance or
regulation
6. Double jeopardy is clearly apparent
7. Court has no jurisdiction over the case
8. Case of persecution rather than prosecution
9. Charges are manifestly false and motivated by lust
for vengeance
10. Clearly no prima facie case against the accused and
MTQ on that ground had been denied
7. Institution of Criminal Actions:
a. In RTC:
By filing a complaint with the appropriate officer for
the purpose of conducting requisite preliminary
investigation therein.
b. In Municipal Trial Courts and Municipal Circuit Trial
Courts:
By filing the complaint or information directly with said
courts, or a complaint with the fiscals office
c. In Metropolitan Trial Courts
By filing the complaint ONLY with the office of the fiscal
In all 3 above cases, such institution shall interrupt the
period of prescription of the offense charged (Rule 110,
1)
d. Offenses subject to summary procedure
[i.e. (1) violation of traffic laws; (2) violation of rental
laws; (3) violation of municipal or city ordinances; and (4)
criminal cases where the penalty does not exceed 6
months or fine of P1000 or both, irrespective of other
imposable penalties and civil liabilities]
The complaint or information shall be filed directly in
court without need of a prior preliminary examination or
preliminary investigation.
Zaldivia vs. Reyes since a criminal case covered by the
Rules of Summary Procedure shall be deemed
commenced only when it is filed in court, then the
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running of the prescriptive period shall be halted on the
date the case is actually filed in court and not on any date
before that.
Reodica vs. CA [clarifies Zaldivia above] Under Art. 91
of the RPC, the period of prescription shall be interrupted
by the filing of the complaint or information. It does not
distinguish whether the complaint is filed for preliminary
examination or investigation only, or for an action on the
merits. Thus, the filing of the complaint even with the
fiscals office should suspend the running of the Statute
of Limitations. The ruling in Zaldivia is not applicable to all
cases subject to the Rules on Summary Procedure, since
that particular case involved a violation of an
ordinance. Therefore, the applicable law therein was not
Art. 91 of the RPC, but Act No. 3326 (An Act to Establish
Periods of Prescription for Violations Penalized by Special
Acts and Municipal Ordinances and to Provide when
Prescription Shall Begin to Run), 2 of which provides
that period of prescription is suspended only when
judicial proceedings are instituted against the guilty
party.
8. Contents of information
a. Name of the accused
Information may be amended as to the name of the
accused, but such amendment cannot be questioned for
the first time on appeal (People vs. Guevarra)
Error of name of the offended party: if material to the
case, it necessarily affects the identification of the act
charged. Conviction for robbery cannot be sustained if
there is a variance between the allegation and the proof
as to the ownership of the property stolen.
b. Designation of offense by statute (or of
section/subsection of statute violated)
Only one offense charged, EXCEPT where law
prescribes a single punishment for various offenses.
If facts do not completely allege all the elements of the
crime charged, the info may be quashed; however, the
prosecution is allowed to amend the info to include the
necessary facts (People vs. Purisima)
 Lee Matias Page |
59

c. Acts or omissions complained of constituting the another preliminary and accused has to plead
offense investigation and retaking anew
of plea of accused
Information need only allege facts, not include all the
Refers to the same offense
evidence which may be used to prove such facts (Balitaan
charged or which
vs. CFI) necessarily includes or is
necessarily included in
d. Name of offended party original charges, hence, Requires or presupposes
substantial amendments that new info involves a
e. Approximate time of commission to info after plea taken different offense which
cannot be made over does not include or is not
Approximation of time is sufficient; amendment as to objections of accused for if included in the original
time is only a formal amendment; no need to dismiss original info is withdrawn, charge, hence, accused
case (People vs. Molero) accused could invoke cannot claim double
A significant discrepancy in the time alleged cannot be double jeopardy jeopardy
sustained since such would allow the prosecution to
prove an offense distantly removed from the alleged 10. After plea, amendment only as to matters of form,
date, thus substantially impairing the rights of the provided
accused to be informed of the charges against him
1. Leave of court is obtained; and
(People vs. Reyes)
2. Amendment is not prejudicial to rights of accused
f. Place of commission
11. When amendment is only as to form
Conviction may be had even if it appears that the crime 1. Neither affects or alters nature of offense charged
was committed not at the place alleged, provided that 2. Charge does not deprive accused of a fair
the place of actual commission was within the courts opportunity to present his defense
jurisdiction and accused was not surprised by the 3. Does not involve a change in basic theory of
variance between the proof and the information prosecution

Qualifying and inherent aggravating circumstances 12. Exceptions to rule on venue

need to be alleged as they are integral parts of the
crime. If proved, but not alleged, become only generic 1. Felonies in Art. 2, RPC (cognizable by proper court
aggravating circumstances. in which charge is first filed)
2. Continuing offenses
9. Amendment of information and Substitution of 3. Piracy which is triable anywhere
information, distinguished 4. Libel (residence; or where first published)
5. In exceptional cases, to ensure fair trial and
impartial inquiry
Amendment Substitution
13. Special cases (who may prosecute)
Involves either formal or Necessarily involves a
substantial changes substantial change a. Adultery and concubinage
Needs leave of court as
Only offended spouse can be complainant
Without leave of court if original information has to
before plea be dismissed
Both guilty parties must be included in complaint
Where only as to form, Another preliminary
there is no need for investigation is entailed b. Crimes against chastity

60
With consent of the offended party, offended spouse,
grandparents, guardian, or state as parens patriae, in that
order
Offended party, even if minor, has right to initiate the
prosecution of the case independently of parents,
grandparents or guardian, unless she is
incompetent/incapable on grounds other than minority.
If offended party who is a minor fails to file the
complaint, her parents, grandparents or guardian may do
so.
In crimes against chastity, the consent of the victim is a
jurisdictional requirementretraction renders the
information void (People vs. Ocapan)
If complexed with a public crime, the provincial fiscal
may sign the complaint on his own
c. Defamation (consisting of imputation of offenses in [a]
or [b])
Complainant must be offended party
The offended party may intervene in the prosecution of
the criminal case because of her interest in it (Banal vs.
Tadeo)
14. Procedure
1. Complaint filed in MTC or info filed in RTC where
an essential ingredient of the crime took place
(territorial jurisdiction)
1. Amendment as a matter of right before plea
2. Amendment upon discretion of the court
after plea
Inclusion of other accused is only a formal amendment
which would not be prejudicial to the accused and should
be allowed (People vs. CA)
d. After plea and before judgment, if it appears there
was a mistake in charging proper offense, court shall
dismiss original info upon the filing of a corrected one,
provided that the accused will not be placed in double
jeopardy (substitution)
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Fiscal determines direction of prosecution;
complainant must ask fiscal if he wants to dismiss the
case; the motion to dismiss must be addressed to the
court which has discretion over the disposition of the
case (Republic vs. Sunga)
Objection to the amendment of an information or
complaint must be raised at the time the amendment is
made; otherwise, deemed to have consented thereto.
15. Remedies
a. Motion to quash
May be filed after arraignment but before plea on the
grounds provided by the rules (generally, a flaw in the
info)
If duplicity of offense charged is not raised in trial
through a motion to quash info, the right to question it is
waived (People vs. Ocapan)
b. Motion to dismiss
May be filed after plea but before judgment on most
of grounds for motion to quash
16. Duplicity of Offense (in information or complaint)
Defined as the joinder of separate and distinct offenses
in one and the same information/complaint
Remedy: file a motion to quash; failure is equivalent to
a waiver
Exception: when existing laws prescribe a single
punishment (complex crimes)
Rule 111 Prosecution of Civil Action
1. General Rule: The injured party may file a civil action
independent of the criminal proceeding to recover
damages from the offender.
Article 32 is a valid cause of a civil action for damages
against public officers who impair the Constitutional
rights of citizens (Aberca vs. Ver)

61
Even if the private prosecutor participates in the
prosecution, if he is not given the chance to prove
damages, the offended party is not barred from filing a
separate civil action
2. Civil action for recovery of civil liability impliedly
instituted, EXCEPT
1. Waiver
2. Reservation of right to institute separate action
3. Institution of civil action prior to criminal action
NOTE: Under SC Circular 57-97, all criminal actions for
violations of BP Blg. 22 shall be deemed to necessarily
include the corresponding civil action, and no reservation
to file such civil action separately shall be allowed or
recognized.
San Ildefonso Lines vs. CA past pronouncements of the
SC that the requirement in Rule 111 that a reservation be
made prior to the institution of an independent civil
action is an unauthorized amendment to substantive
law is now no longer controlling. Far from altering
substantive rights, the primary purpose of the reservation
requirement is to avoid multiplicity of suits, to prevent
delays, to clear congested dockets, to simplify the work of
the trial court, and in short, the attainment of justice with
the least expense and vexation to parties-litigants.
3. Civil action suspended when criminal action filed,
EXCEPT
1. Independent civil action (Arts. 32, 33, 34 and 2176
of NCC)
2. Prejudicial civil action
3. Civil case consolidated with criminal action
4. Civil action not one intended to enforce civil
liability arising from the offense (e.g., action for
legal separation against a spouse who committed
concubinage)
4. Prejudicial question arises when
1. The civil action involves an issue similar or
intimately related to the issue raised in the
criminal action
2. The resolution of such issue will determine
whether the criminal action will proceed or not
Requisites for a prejudicial question:
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1. The civil action involves an issue similar or
intimately related to the issue raised in the
criminal action: and
2. The resolution of such issue determines whether
or not the criminal action may proceed
Petition for suspension of criminal action is to be filed
at any time before prosecution rests.
5. Remedies
a. Reservation of right to institute separate civil
proceedings to recover civil liability arising from crime
Must be made before prosecution presents evidence
Action instituted only after final judgment in criminal
action
b. Petition to suspend the criminal action
May be filed upon existence of a prejudicial question in
a pending civil action
Filed at any time before the prosecution rests
6. Extinction of penal action does not carry with it
extinction of the civil unless the extinction proceeds from
a declaration in a final judgment that the fact from which
the civil might arise did not exist.
Final judgment in civil absolving defendant from civil
liability not a bar to criminal action
7. Filing fees:
1. Actual or compensatory damages filing fees not
required
2. Moral, temperate and exemplary filing fees
required
1. If alleged, fees must be paid by offended party
upon filing of complaint or information
1. If not alleged, filing fees considered a first
lien on the judgment
Rule 112 Preliminary Investigation
1. Preliminary investigation inquiry or proceeding to
determine if there is sufficient ground to engender a well-

62
founded belief that a crime cognizable by the RTC has
been committed, and that the respondent is probably
guilty thereof, and should be held for trial
A preliminary investigation is only necessary for an
information to be filed with the RTC; complaints may be
filed with the MTC without need of an information, which
is merely recommendatory (Tandoc vs. Resultan)
Absence of a preliminary investigation is NOT a ground
for a motion to quash the information; an information
filed without a preliminary investigation is defective but
not fatal; in its absence, the accused may ask for one; it is
the fiscals refusal to conduct a preliminary investigation
when the accused demands one which is a violation of
the rights of the accused (Doromal vs.
Sandiganbayan). Court should not dismiss the info, but
hold the case in abeyance and either: (1) conduct its own
investigation; or (2) require the fiscal to hold a
reinvestigation.
2. GENERAL RULE: The fiscal conducts the preliminary
investigation before filing an information with the
RTC, EXCEPT where the accused is lawfully arrested
without a warrant and an inquest is conducted.
3. Right to Preliminary Investigation
A personal right and may be waived
Waived by failure to invoke the right prior to or at least
at the time of the plea
4. Who conducts Preliminary Investigation
1. Provincial or city fiscals and their assistants
2. Judges of MTC and MCTC
3. National and regional state prosecutors
4. Such other officers as may be authorized by law
5. Duly authorized legal officers of COMELEC
1. The Ombudsman
2. The PCGG, in cases of ill-gotten wealth
5. Procedure
a. If conducted prior to arrest
i. Complainant files complaint with
(a) Provincial or city fiscal
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(b) Regional or state prosecutor
(c) MTC or MCTC judge, excluding MTC judge of Metro
Manila or chartered cities
(d) Other offices authorized by law
1. Investigating officer either dismisses complaint or
asks by subpoena complainant and respondent to
submit affidavits and counter-affidavits
1. If the investigating officer finds prima
facie evidence, he prepares an information
and a resolution
i.e., if fiscal finds reasonable ground to believe that a
crime has been committed and accused is probably guilty
thereof
Prima facie evidence is that evidence which, standing
alone, unexplained and uncontradicted, would be enough
to merit a conviction of the accused
iv. Otherwise, he recommends the dismissal of the
complaint
If the investigating officer is an MTC judge, and he finds
that probable cause exists and that there is a need to
place the accused under custody, then he may issue a
warrant of arrest
Flores vs. Sumaling What differentiates the present
rule from the previous one is that while before, it was
mandatory for the investigating judge to issue a warrant
for the arrest of the accused if he found probable cause,
the rule now is that the investigating judges power to
order the arrest of the accused is limited to instances in
which there is a necessity for placing him in custody in
order not to frustrate the ends of justice. It is therefore
error for the investigating judge to order the issuance of a
warrant of arrest solely on his finding of probable cause,
without making any finding of a necessity to place the
accused in immediate custody to prevent a frustration of
justice.
1. Investigating officer forwards records to the city
fiscal or chief state prosecutor
1. City fiscal or state prosecutor either
dismisses the complaint or files the
information in court

63
Decision prevails over decision of the MTC judge
vii. Records will not form records of the case proper
Court on its own or on motion may order production of
record
b. If conducted after warrantless arrest
1. If accused waives Art. 125, RPC and asks for a
preliminary investigation, with the assistance of
counsel, then the procedure for one prior to arrest
is followed
1. Inquest conducted as follows
(a) Fiscal determines the validity of the arrest
(b) Fiscal determines existence of prima facie evidence
based on the statements of the complainant, arresting
officer and witnesses
(c) Fiscal either dismisses the complaint and orders the
immediate release of the accused, OR prepares and files
an information
While fiscal has quasi-judicial discretion whether or not
to file an information, once it is filed with the court, the
court acquires jurisdiction giving it discretion over the
disposition of the case and the Sec. of Justice should
refrain from entertaining petitions for review or appeals
from the decision of fiscal (Crespo vs. Mogul; Velasquez
vs. Undersecretary of Justice)
NOTE: Information may be filed by offended party, peace
officer or fiscal without preliminary investigation.
6. Remedies
a. Motion for preliminary investigation
Filed when accused is arrested without warrant
Must be with assistance of counsel and after waiving
Art. 125, RPC
b. Motion for preliminary investigation
Filed within 5 days after accused learns an information
against him has been filed without a preliminary
investigation
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c. Motion for re-investigation
d. Appeal to DOJ
Filed upon denial of his motion for a preliminary
investigation, on the ground that his rights to due process
of law were violated, ousting the court of jurisdiction
e. Petition for prohibition
Filed with appellate court to stop the criminal
proceedings
Ordinarily, injunction will not lie but may be granted in
certain cases
When prohibition proper to restrain criminal
proceedings:
1. When strong-arm tactics are used for vindictive
purposes (Salonga vs. Cruz-Pano)
2. When the accused is deprived of his rights
3. When the statute on which the charge is based is
null and void
4. When it will aid the administration of justice
(Tatad vs. Sandiganbayan)
5. When multiplicity of suits will be avoided
(Guingona vs. City Fiscal)
Rule 113 Arrest
1. Arrest taking a person into custody in order that he
may be bound to answer for the commission of some
offense, made by an actual restraint of the person or by
his submission to custody
2. General Rule: No person may be arrested without a
warrant.
Not all persons detained are arrested; only those
detained to answer for an offense.
Invitations are not arrests and are usually not
unconstitutional, but in some cases may be taken as
commands (Babst vs. NBI); however, the practice of
issuing an invitation to a person who is investigated in
connection with an offense he is suspected to have
committed is considered as placing him under custodial
investigation. (RA 7438)

64
Warrants of arrest remain valid until arrest is effected,
or the warrant is lifted
Arrest may be made at any time of the day or night
3. Warrantless arrests by a peace officer or a private
person
a. When person to be arrested is committing,
attempting or has committed an offense
b. When an offense has just been committed and the
person making the arrest has personal knowledge that
the person to be arrested committed it
Warrantless arrest anytime for a continuing offense
like rebellion, subversion (Umil vs. Ramos)
The continuing crime, not the crime finally charged,
needs only be the cause of the arrest (Umil vs. Ramos)
c. When person to be arrested is an escaped detainee
(either serving sentence or with case pending)
1. When a person lawfully arrested escapes
2. Bondsman, for purpose of surrendering the
accused
3. Accused attempts to leave country without court
permission
4. Procedure
a. With warrant
1. Complainant files application with affidavits
attached
2. Judge conducts ex parte preliminary examination
to determine probable cause
In determining probable cause, judge must:
(1) Personally examine witness
(2) Witness must be under oath
(3) Examination must be reduced to writing (Luna vs.
Plaza)
In determining probable cause, the judge may rely on
findings by responsible officer (Lim vs. Felix)
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iii. Judge issues warrant of arrest
If without preliminary examination, considered
irregular (Bagcal vs. Villaraza)
iv. If peace officer is unable to serve warrant 10 days after
issuance, he must file a report and explanation with judge
within 10 days
v. If warrant served
(1) Person informed that he is being arrested
(2) Informed of cause of his arrest
(3) Officer may break door or window if admission to
building is refused
(4) Person physically restrained
For private citizens making an arrest
May not do so except to do some service to humanity
or justice
(5) No violence or unnecessary force may be used
(6) Officer may summon assistance
(7) Person who escapes after arrest may be immediately
pursued
vi. Person arrested is brought to nearest police
station or jail
b. Without warrant:
1. Person is arrested
1. Person arrested may waive right to Art. 125,
RPC and ask for preliminary investigation or
inquest
Fiscal is not judicial authority contemplated under Art.
125 (Sayo vs. Chief of Police)
1. Fiscal files info
5. Requisites for a warrant of arrest:
1. Probable cause
2. Signed by judge
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65

3. Specifically naming or particularly and sufficiently Otherwise, the voluntary appearance of the person
describing person to be arrested arrested by filing a motion before the court would be
John Doe warrants are void for being general warrants deemed a submission to the authority of the court, thus
(Pangandaman vs. Cesar) granting it whatever jurisdiction it lacked over the person

6. Remedies Any irregularity in the arrest is cured when the

petitioner submits himself to the jurisdiction of the
a. Petition for writ of habeas corpus
court, e.g., by filing for bail (Bagcal vs. Villaraza)
7. V.V. Mendoza, Rights to Counsel in Custodial
Filed with any court, to effect immediate release of the
Investigation
person detained
Evolution of rights of the accused under custodial
Filed when a person is being illegally detained (without
investigation
judicial process), or was illegally arrested (void warrant or
unlawful warrantless arrest, or warrantless arrest beyond 1. All involuntary confession were inadmissible;
period with no information filed) accused had to prove involuntariness
1. Involuntary confessions were inadmissible
Habeas corpus is not allowed when: only if they were false
1. The person is in custody of an officer under 2. Revert to exclusionary rule: any involuntary
process of law, and confession is inadmissible
2. The court had jurisdiction to issue the process 1. Miranda rule: the accused must be
(Luna vs. Plaza) informed of his rights
If an arrest is improper, the remedy is a motion for 1. To remain silent
quashal of the warrant of arrest and/or a motion to 2. Against self-incrimination
quash the information, not habeas corpus (Ilagan vs. 3. To counsel
Enrile) 4. Definition of custodial
Habeas corpus is no longer available after an investigation questioned
information has been filed, the information being the 1. It begins only after
judicial process required by law (Ilagan vs. Enrile) arrest
Habeas corpus is proper when a person is being 2. Police investigations
restrained illegally, e.g., imprisoned past maximum prior to arrest are not
covered
penalty allowed by law (Gumabon vs. Director of Prisons)
3. The rights may be
b. Quashal of warrant of arrest waived, but the rights
to be informed of these
Filed with court which issued the warrant of arrest rights, i.e., to warning,
when the warrant of arrest is fatally flawed may not be waived
4. Warning must not only
c. Motion to quash information be said, officer must
make sure the person
Filed with court when information against the person arrested understands
arrested has been filed them specifically
5. Present rules
Must be made in a special appearance before the 1. Voluntary
court questioning only its lack of jurisdiction over the confessions are
person of the accused admissible
2. Test of
voluntariness

66
determined on a
case-to-case
basis
3. Waiver of rights
must not only be
with counsel but
must be in
writing
Confessions made without assistance of counsel are
inadmissible as evidence to incriminate the accused, but
they may be used to impeach the credibility of the
accused, or they may be treated as verbal admission of
the accused through the testimony of the witnesses
(People vs. Molas)
Rule 114 Bail
1. Bail security given for the release of a person in
custody of law, furnished by him or a bondsman,
conditioned upon his appearance before any court as
required under the following conditions:
1. Undertaking effective upon approval and remains
in force at all stages until promulgation of
judgment, unless sooner cancelled
2. Accused shall appear before court when required
3. Failure to appear despite notice to him or the
bondsman will waive his right to be present and
trial shall proceed in absentia
4. Bondsman shall surrender accused for execution of
judgment
Bail applies to all persons detained, not just to those
charged with the offense (Herras vs. Teehankee)
Court has power to prohibit person out on bail from
leaving the country (Manotoc, Jr. vs. CA)
Bail implies delivery of the accused to the sureties who,
though not holding him prisoner, may seize him and
imprison him until they can deliver him to court (US vs.
Bonoan)
2. General Rule: All persons are entitled to bail as a
matter of right, except those charged with capital
offenses.
Right to bail traditionally unavailable to military
personnel facing court martial, who are not in the same
class as civilians (Comendador vs. de Villa)
Bail should be available regardless of other
circumstances or the merits of the case, if the health or
Lee Matias Page |
the life of the detainee is in danger (Dela Rama vs.
Peoples Court)
Excessive bail is tantamount to denial of bail, which is
unconstitutional (Dela Camara vs. Enage)
3. When bail is a matter of right
Before or after conviction by MTC, MCTC, MJC
Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment
4. When bail is discretionary (application filed with
court where case is pending)
1. Upon conviction by RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment
2. Provisional liberty under same circs. but during
period to appeal subject to consent of bondsman
3. In case he has applied for probation after final
judgment, he may be allowed temporary liberty
under his bail or recognizance
5. Procedure
a. Offense charged is not capital:
i. Accused applies for bail
(1) Where information against him was filed or where
case is pending
(2) Absent (1), in another branch of the same court
within the province or city where he is held
(3) If arrested in another province, city or municipality,
file with the RTC
(4) Absent (3), with the MTC
1. Judge sets bail
1. Accused may move to reduce bail, and
hearing will be set
2. Accused posts bail and deposits the same
with the Municipal/City/Provincial Treasurer
or, if cash, with the Collector of Internal
Revenue

67
3. Accused is released
b. Offense charged is capital:
1. Accused petitions for bail
2. Judge sets hearing to determine whether evidence
of guilt is strong
Ex-parte hearing on bail is arbitrary and unacceptable
(Herras vs. Teehankee)
1. Prosecution presents evidence
1. Court may not force fiscal to produce
evidence (Herras vs. Teehankee)
2. If evidence is strong, bail is denied
1. Otherwise, judge sets bail and
procedure for non-capital offense is
followed
In capital crimes, judges discretion is limited to
determining strength of evidence and does not cover
determining whether bail should be allowed (Herras vs.
Teehankee)
Evidence must be strong that the accused is guilty of
the capital offense charged, not just of any offense
(Bernardez vs. Valera)
6. Bail bond an obligation under seal given by
accused with one or more sureties and made payable to
proper officer with the condition to be void upon
performance by the accused of such acts as he may
legally be required to perform
7. Recognizance
1. Obligation of record entered into before some
court of 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
2. Does not require signature of accused for trial
3. Does not require signature of accused to be valid
8. Prosecution witnesses may be required to post bail to
ensure their appearance at the trial, except:
1. Substitution of info (see R110, 14)
2. Court believes that material witness may not
appear at the trial
9. When bail required under RA 6036 (violation of
ordinance, light felony, criminal offense not higher that
6 month imprisonment and/or P2000 fine, or both)
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1. a. Caught in flagrante
2. Confessed to commission of offense unless
repudiated (force and intimidation)
3. Previously escaped, evaded sentence or jumped
bail
4. Violation of Sec. 2 (fails to report to clerk of court
periodically under his recognizance)
5. Recidivist, habitual delinquent previously
convicted for an offense to which the law or
ordinance attaches an equal or greater penalty or
for 2 or more offenses to which it attaches a
lighter penalty
6. Committed offense while on parole or under
conditional pardon
7. Previously pardoned by municipal or city mayor for
violation of ordinance for at least 2 times
10. Instances when accused may be released on
recognizance:
1. Offense charged is a violation of an ordinance, a
light felony or criminal offense the imposable
penalty to which does not exceed 6 months and or
P2000 fine
2. Person has been in custody for a period equal to or
more than the minimum of the imposable principal
penalty, without application of the Indeterminate
Sentence Law or any modifying circumstance
3. Accused has applied for probation and before the
same has been resolved, but NO BAIL was filed or
accused is incapable of filing one
4. Youthful offender held for physical and mental
examination, trial or appeal, if unable to furnish
bail
11. Cancellation of bail
a. Upon application with the court and due notice to the
fiscal
1. Accused surrenders back to custody
1. Accused dies
b. Automatic cancellation
1. Case is dismissed
1. Accused is acquitted
2. Accused is convicted and surrenders for
execution of judgment

68
12. When bail cancelled or denied: after RTC imposes
imprisonment exceeding 6 years, but not more than 20
years, and:
1. Accused is a recidivist, quasi-recidivist, habitual
delinquent or guilty of the aggravating
circumstance of reiteration;
2. Provisionally escaped, evaded sentence, violated
provisions of bail;
3. Committed offense while on probation, parole, or
conditional pardon;
4. Probability of flight; or
5. Undue risk that during appeal, he may commit
another crime
13. When bail is forfeited
a. Accused fails to appear before court when required
30 days for bondsman to show cause why judgment
should not be rendered against him
b. Bondsman fails to produce him within 30 days
c. Bondsman fails to satisfactorily explain to the court
why accused did not appear when first required to do so
Sureties guarantee only appearance of the accused, not
his conduct (US vs. Bonoan)
Sureties exonerated if appearance made impossible by
an act of God, the obligee or the law (US vs. Bonoan)
14. Provisional forfeiture
1. Within 30 days, produce the body or give reason
for non-production AND
2. Explain satisfactorily the absence of the accused
when first required to appear
15. Remedies
1. Application for bail, when bail can be availed of as
a matter of right
2. Petition for bail, when the offense charged is a
capital offense
For judge to set hearing for the determination of
strength of evidence of guilt
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16. Circumstances to be considered in fixing amount of
bail:
1. Financial ability of accused to give bail;
2. Nature and circumstances of offense;
3. Penalty of offense charged;
4. Character and reputation of accused;
5. Age and health of accused
6. Weight of evidence against accused
7. Probability of accused appearing for trial;
8. Forfeiture of other bonds;
9. Fact that accused was a fugitive from justice when
arrested; and
10. Pendency of other cases in which the accused is
under bond
17. Notes:
1. Posting bail waives the right to question any
irregularity attending the arrest of a person
(Callanta vs. Villanueva). However, this does not
result in waiver of the inadmissibility of the articles
seized incidentally to such illegal arrest.
2. Accused waived the right to question any
irregularity in the conduct of the preliminary
investigation when he failed to do so before
entering his plea (People vs. Dela Cerna)
3. Accused out on bail may be re-arrested if he
attempts to depart from the Philippines without
prior court permission (warrantless arrest
allowed).
Rule 115 Rights of Accused
1. Right of the accused under the Rules
a. To be presumed innocent until proven guilty beyond
reasonable doubt
In an appeal from a conviction, the accused shall again
be presumed innocent until and unless his conviction is
affirmed (Castillo vs. Felix)
b. To be informed of the nature and cause of charges
The right must be substantially complied with;
arraignment and later proceedings must be in a language
the accused understands (People vs. Crisologo)

69
c. To be present at every stage of proceedings, subject
to waiver by bail
If an accused escapes, he waives this right and merits a
trial in absentia; the accused forfeits his rights to be
notified of proceedings in the future and to adduce
evidence in his behalf (People vs. Salas)
1. To testify as witness on his own behalf, subject to
cross-examination on matters covered by direct
examination; not to be prejudiced by his silence
2. Not to be compelled to be a witness against
himself
3. To confront and examine the witnesses against
him, including the right to use in evidence
testimony of a witness
4. Who is deceased, out of or cannot with due
diligence be found in the RP
1. Given in another proceeding
2. With the same parties
3. Same subject matter
4. Opportunity to cross-examine
Prosecution has no privilege to withhold the identity of
informers when such informer was crucial in the
operation itself; failure to present the informer is a denial
of the right to confront the witness which merits the
reversal of the conviction (People vs. Bagano)
g. To have compulsory process to secure witnesses and
evidence in his behalf
h. To have a speedy, impartial and public trial
Unreasonable postponements of trial amounts to a
denial of the right to a speedy trial, entitling the accused
to mandamus to compel dismissal of the case, or to
habeas corpus if he is detained
i. To have the right of appeal
2. Rights of the accused under the Constitution
a. To due process
b. Against self-incrimination
Right is limited to testimonies; ocular inspection of the
body may be allowed (Villaflor vs. Summers)
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Being informed of rights means a meaningful
transmission of information, without which confession
made by the accused is inadmissible (People vs. Nicandro)
Confessions obtained through coercion are
inadmissible (People vs. Opida)
Right against self-incrimination and to counsel do not
apply during custodial investigation (People vs. Ayson)
During trial, the right against self-incrimination takes
the following form:
1. Accused may refuse to testify
2. If he testifies, he may refuse to answer those
questions which may incriminate him in ANOTHER
offense
c. Against double jeopardy
d. To be heard by himself and counsel
3. Double jeopardy
1. First jeopardy must have attached prior to the first
2. First jeopardy attached and terminated
3. Valid complaint or information
1. Competent court with jurisdiction
2. Accused had pleaded
3. Action ended in conviction, acquittal or
termination without the consent of the
accused
c. Offense charged in later case is:
1. Same as that in previous case
1. Necessarily includes or is included in the
previous case
2. An attempt or frustration of the offense in
previous case
1. An offense lesser than that charged
to which the accused pleaded guilty
with the consent of the fiscal and the
offended party
4. Exceptions to double jeopardy
1. The offense was made graver by supervening
events

70
2. The facts constituting the graver offense were only
discovered after the filing of the earlier
information
No double jeopardy if the new fact which justified the
new charge arose only after arraignment and conviction
(People vs. City Court)
No double jeopardy where the trial was a sham since
there was no competent court (Galman vs.
Sandiganbayan)
No double jeopardy if first case was dismissed with
consent of the accused (Caes vs. IAC)
There is double jeopardy if a person is charged twice
under different penal statutes for the same acts (People
vs. Relova)
c. Plea of guilty to a lesser offense without the consent
of the fiscal and the offended party
5. Remedies
1. Motion to quash
2. Motion to dismiss
Both filed on the ground of violation of accuseds
rights, thereby ousting the court of jurisdiction
6. NOTES:
Constitution, Art. III, Sec. 1
No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be
denied the equal protection of the laws.
Constitution, Art. III, Sec. 14
1. No person shall be held to answer for a criminal
offense without due process of law.
2. In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved,
and shall enjoy the right to be informed of the
nature and cause of the accusations against him,
to have a speedy, impartial and public trial, to
meet the witnesses face to face, and to have
compulsory process to secure the attendance of
witnesses and the production of evidence in his
behalf.
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However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided
that he has been duly notified and that his failure to
appear is unjustifiable.
Constitution, Art. III, Sec. 16
All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or
administrative bodies.
Constitution, Art. III, Sec. 17
No person shall be compelled to be a witness against
himself.
Constitution, Art. III, Sec. 21
No person shall be twice put in jeopardy of punishment
for the same offense.
If an act is punished by a law or ordinance, conviction or
acquittal under either shall constitute a bar to another
prosecution for the same act.
Rule 116 Arraignment and Plea
1. Procedure
1. Court informs accused of his right to counsel and
asks him if he wants one
2. Court appoints counsel de oficio if accused has
none
If no such member of the available, any person who is a
resident of the province, of good repute for probity and
ability to defend accused
c. Court gives counsel time to confer with accused at
least an hour before arraignment
Period allowed for counsel de oficio to confer with
accused must be substantially complied with; if not, case
may be remanded for re-arraignment (People vs.
Gonzaga)
1. Accused given a copy of the information, which is
read to him in a language he understands
2. Accused is asked whether he pleads guilty or not
guilty
 Lee Matias Page |
71

3. Accused files a motion to quash or makes plea culpability, and accused may still establish presence of
4. Accused personally makes his plea mitigating circumstances in his favor
5. Plea is entered into record
6. If accused makes plea of not guilty, counsel has at f. Guilty to a non-capital offense
least 2 days to prepare for trial
People vs. Agbayani the right for 2 days to prepare Court receives evidence from the parties to determine
must be expressly demanded. Only when so demanded penalty to impose
does denial thereof constitute reversible error and
Plea of guilty not necessarily followed by
ground for new trial. Further, such right may be waived,
conviction. Upon receipt of exculpatory evidence (if
expressly or impliedly.
accused pleaded guilty), trial court should consider the
NOTE, HOWEVER, under SC Circular 38-98 plea withdrawn and in its place, order the plea of not
(implementing Speedy Trial Act of 1997), accused must guilty
be given at least 15 days to prepare for trial, which shall
Plea of guilty waives only defects which may be taken
commence within 30 days from receipt of Pre-Trial Order.
advantage of by motion to quash or by plea in
j. Case proceeds to pre-trial, trial or hearing, depending abatement; cannot cure jurisdictional defects.
on the plea
3. Effects
Statement in the judgment that the accused was
a. Entry of plea will waive
arraigned and pleaded is sufficient; the manner of
statement of such fact is immaterial (People vs. Cariaga) 1. Right to question illegality of the arrest
2. Right to question any irregularity in the preliminary
2. Kinds of plea
investigation
1. No plea a plea of not guilty shall be entered 3. Right to file a motion to quash
2. Conditional plea of guilt a plea of not guilty shall
b. Improvident plea of guilty may be changed to not
be entered
guilty any time before judgment is rendered
3. Not guilty case proceeds to trial or pre-trial
4. Guilty to a lesser offense if fiscal and offended
c. A plea of not guilty may not be changed to guilty, as
party consents, conviction under offense charged
doing so would only spare the prosecution of presenting
for purposes of double jeopardy
5. Info may be amended evidence and still result in the conviction of the accused.
1. Case goes to trial
4. Remedies
2. Even if info is not amended, and even if
lesser offense is not included in offense
a. Motion for specification
charged, court may still find the accused
guilty of that lesser offense May be filed any time before plea, even after a MTQ

e. Guilty to a capital offense Filed when the information is insufficient in form or is

Court conducts searching inquiry to determine if
accused was aware of the charges, of his plea, and its
consequences
generally worded, that a Bill of Particulars is necessary to
clarify the acts for which the accused is being charged
b. Motion to quash

Court requires prosecution to present evidence to May be filed at anytime before plea is entered
prove guilt of accused and determine his degree of
Based on grounds provided by the rules

72
c. Motion to suspend arraignment
Filed when the accused seems mentally unsound or if
there is a prejudicial question in a pending civil case
d. Motion to withdraw an improvident plea of guilt
May be filed at any time before judgment of conviction
becomes final, when it can be shown that the accused
was not aware of the significance of pleading guilty to the
charges
Rule 117 Motion to Quash
1. Motion to quash a hypothetical admission that
even if all the facts alleged were true, the accused still
cannot be convicted due to other reasons
2. When to file Motion to Quash
General Rule: Before entering plea; all grounds not
raised deemed waived
Exception: The following grounds may be used in MTQ
even after plea
1. No offense charged
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or of the penalty
4. Double jeopardy
3. Grounds
a. Information does not conform to prescribed form
For the info to charge a complex crime, it is not
necessary that it be defined by law, only that it alleges
that one offense was necessary to commit the other
(People vs. Alagao)
b. Court has no jurisdiction
1. No territorial jurisdiction
2. No
jurisdiction over offense charged may be raised
at any time; no waiver considered even upon
failure to move to quash on such ground
3. No jurisdiction over person of the accused
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The court gained jurisdiction over the person of the
accused when he voluntarily appeared for the pre-
suspension hearing (Layosa vs. Rodriguez)
c. Accused would be put in double jeopardy
Bars another prosecution
No waiver
No double jeopardy if first case was dismissed with the
consent of the accused (Que vs. Cosico), unless ground for
dismissal is: (a) denial of right to speedy trial; or (b)
insufficiency of evidence.
If the first case was dismissed due to a deficient
information, then there was no valid information and
there could be no double jeopardy (Caniza vs. People)
Cudia vs CA it should be the Provincial Prosecutor of
Pampanga, not the City Prosecutor, who should prepare
informations for offenses committed within Pampanga
but outside Angeles City. An information must be
prepared and presented by the prosecuting attorney or
someone authorized by law. If not, the court does not
acquire jurisdiction. Although failure to file a motion to
quash the information is a waiver of all objections to it
insofar as formal objections to pleadings are concerned,
questions relating to want of jurisdiction may be raised at
any stage of the proceedings. Moreover, since the
complaint or information was insufficient because it was
so defective in form or substance that conviction upon it
could not have been sustained, its dismissal without the
consent of the accused cannot be pleaded as prior
jeopardy, and will not be a bar to a second prosecution.
d. More than one offense was charged, EXCEPT where
law prescribes single punishment for various offenses
e. Facts alleged do not constitute an offense
May be raised at any time
No waiver
For charge to be complete, it is necessary to state that
it was exempted from any amnesty existing at the time
f. Criminal action or liability has been extinguished

73
g. Information contains allegations which, if true, would
be a legal excuse or justification
h. Officer who filed the information had no authority
Presentation of evidence cannot cure an invalid
information (People vs. Asuncion)
NOTE: Court will consider no other grounds other than
those raised, EXCEPT lack of jurisdiction over offense
charged.
4. Requisites of Double jeopardy
a. Valid information or complaint, sufficient in form and
substance
b. Before court of competent jurisdiction
Doctrine of Jurisdiction by Estoppel: depends upon
whether the lower court actually had jurisdiction or not.
If it had no jurisdiction, but the case was tried and
decided upon the theory that it had jurisdiction, the
parties are not barred on appeal, from assailing such
jurisdiction, for the same must exist as a matter of law,
and may not be conferred by consent of the parties or by
estoppel. However, if the lower court had jurisdiction,
and the case was heard and decided upon a given theory,
such, for instance, as that the court had no jurisdiction,
the party who induced it to adopt such theory will not be
permitted, on appeal, to assume an inconsistent position
that the lower court had jurisdiction. Here, the
principle of estoppel applies. The rule that jurisdiction is
conferred by law, and does not depend upon the will of
the parties, has no bearing thereon.
c. Accused had pleaded
d. Conviction, acquittal, or dismissal or termination of
case without consent of accused
e. Bar to offense charged, attempt to commit the same
or necessarily includes or is necessarily included
Conviction for physical injuries through reckless
imprudence constitutes double jeopardy to the charge of
damage to property through reckless imprudence.
5. Procedure
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1. MTQ filed
2. If based on defect in info which can be cured, court
shall order its amendment
3. Quashing the info shall NOT be a bar to
subsequent prosecution (accused has not pleaded
yet), EXCEPT when the ground is:
1. Double jeopardy OR
2. Extinction of criminal liability
6. Remedies
1. Motion to dismiss if certain grounds were not
raised or denied in a MTQ
2. Trial
If there was really no basis for the info, then such could
be proved in the trial
Upon denial of a MTQ, the proper remedy is to go on
trial and later to appeal, if necessary; mandamus
or certiorari will only be granted if there is not other
plain, simple and adequate remedy
7. Failure to move to quash or to allege any ground
therefor deemed a waiver of such grounds, except:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or of the penalty
4. Double jeopardy
Rule 118 Pre-Trial
1. Plea bargaining process whereby the accused and
the prosecution in a criminal case work out a mutually
satisfactory disposition of the case subject to court
approval. It usually involves the defendants pleading
guilty to a lesser offense or to only some of the counts of
a multi-count indictment in return for a lighter sentence
than that for the greater charge.
Under Speedy Trial Act of 1997, in all criminal cases
cognizable by the MTC, MCTC, MeTC, RTC and
Sandiganbayan, pretrial is mandatory.
Under SC Circular 38-98, implementing the Speedy
Trial Act of 1997, an accused may plea guilty to a lesser
offense only if said offense is necessarily included in the
offense charged.
2. Stipulation of facts

74
Facts which both parties and respective counsels agree
on as evidenced by their signatures; these facts need not
be proved by evidence in trial
Stipulation is inadmissible if unsigned by either accused
or counsel; a later memo of confirmation, signed only by
counsel, cannot cure defect (Fule vs. CA)
3. Pre-trial order binds the parties, limits the trial to
matters not yet disposed of, and controls the course of
action during the trial
4. Procedure
1. Judge must calendar pre-trial
2. Either party may waive the pre-trial
3. If court appoints counsel de oficio, counsel has at
least 2 days to prepare
4. In the pre-trial conference
5. Plea bargaining
6. Stipulation of facts
7. Marking of evidence (does not imply conceding to
its admissibility or credibility)
8. Waiver of objections to admissibility of evidence
9. Other matters which will promote a fair and
expeditious trial
e. Judge issues pre-trial order
Rule 119 Trial
1. In trial, the defense tries
1. To assail the admissibility of evidence which prove
the elements of the offense charged
2. To assail the credibility of such evidence
3. To prove another version, possibly admitting
certain evidence of the prosecution and adding
other evidence to cast reasonable doubt
Even in summary procedure, the judge cannot base his
decision simply on affidavits; he must give the defendant
the chance to cross-examine (Combate vs. San Jose)
2. Procedure
a. Parties notified of date of trial 2 days before trial date
(R119, 1)
Lee Matias Page |
HOWEVER, under SC Circular 38-98, accused must be
given at least 15 days to prepare for trial, which shall
commence within 30 days from receipt of Pre-Trial Order.
1. Accused may move that his witnesses be examined
2. Defense witnesses examined by any judge or
lawyer
3. Prosecution witnesses, if they would be unable to
attend trial, may be examined by the judge
handling the case
4. Trial continues from day to day, unless postponed
for a just cause
5. Prosecution presents evidence
Presentation
Testimonies: direct examination
Cross-examination
Re-cross
Offer
1. Accused may move for discharge
2. Prosecution rests
3. Defense may, with or without leave of court, file a
demurrer to evidence
4. Defense presents evidence
5. Defense rests
6. Prosecution presents rebuttal evidence
7. Defense presents rebuttal evidence
8. Trial is closed; case is submitted for judgment
3. When mistake made in charging proper offense
1. If Accused cannot be convicted of offense charged
or offense necessarily included therein
2. Accused detained, not discharged
3. Original case dismissed upon filing of proper
information
Example: Charged with theft. At trial, appears that
offense is estafa. The prosecution can ask for the
dismissal of the info in order to file a new one for
estafa. No Double Jeopardy because no valid info in the
first case.
4. Application for examination of witnesses for accused
before trial

75
1. Sick or infirm; unable to attend trial
2. Resides more than 100 km. from means of trial; no
means to attend
5. Application (prosecution)
1. Sick or infirm
2. Has to leave the RP with indefinite date of
returning
6. Requisites for postponement due to absence of a
witness
1. Witness is really material and appears to the court
to be so
2. Party who applies for postponement has not been
guilty of neglect
3. Witness can be had at the time to which the trial
has been deferred
4. No similar evidence could be obtained
7. Requisites to discharge of an accused as State Witness
1. Testimony of accused absolutely needed
2. No other direct evidence available EXCEPT his
testimony
3. Testimony can be corroborated on material points
4. Accused does not appear to be most guilty
5. Accused has never been convicted of offense
involving moral turpitude
Discharge of accused, when not all the requisites were
met, cannot be revoked as long as he testified according
to what was expected of him (People vs. Aninon)
8. Remedies
a. Motion for separate trials
Filed by the fiscal to try several accused separately
Granted at the courts discretion
May also be ordered by the court motu proprio
b. Motion to consolidate
Upon the courts discretion, separate charges may be
tried in one single case if the offenses charged arise form
the same facts or form part of a series of similar offenses
Lee Matias Page |
Court allowed consolidation of rape cases substantially
committed in the same manner (People vs. David)
c. Motion for continuance filed to postpone trial for
just cause
d. Motion to exclude public
Excluding parties, counsels and court personnel
May also be ordered by court motu proprio
e. Motion for discharge
Filed before the prosecution rests
Hearing to determine existence of requisites for
discharge
Prosecution will present evidence and the sworn
statement of the proposed state witness
Evidence adduced in this said hearing automatically
form part of trial; however, if court denies motion for
discharge, his sworn statement shall be inadmissible in
evidence.
Discharge of the accused has the effect of acquittal,
unless accused fails or refuses to testify against his co-
accused in accordance with his statement (which formed
the basis for his discharge)
f. Demurrer to evidence
May be made after the prosecution rests its case
If the court finds the prosecutions evidence
insufficient, the case will be dismissed
Otherwise, if demurrer denied
1. If the demurrer was made with leave of court,
defense gets to present evidence
2. If the demurrer was made without leave of court,
defense is deemed to have waived the right to
present evidence and the case is submitted for
judgment
Case may also be dismissed motu proprio
 Lee Matias Page |
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g. Motion to reopen 1. Civil liability for damages, unless acts alleged

clearly did not exist
Filed after the case is submitted for judgment but 2. Basis of liability
before judgment is actually rendered
5. Procedure
To allow either side to present additional evidence, if
such could not be found before 1. Judge reads judgment in presence of accused
2. If judgment is of acquittal
Granted on discretion of the judge 3. It becomes final and executory
4. It bars subsequent prosecution for the same
The accused cannot move to reopen the case to allow offense
him to adduce evidence in his behalf when his failure to
adduce them during the trial was his own fault (People vs. c. If judgment is of conviction, remedy is to file:
Cruz)
1. Motion for reconsideration
2. Motion for new trial
Rule 120 Judgment 3. Notice of appeal
1. Judgment adjudication by the court that the accused
is guilty or not guilty of the offense charged, and the Or else, judgment becomes final and is entered in the
imposition of the proper penalty and civil liability book of Judgments
provided by law on the accused
6. When judgment in a criminal case becomes final:
2. General Rule: If the accused is found not guilty, he will
be acquitted and the acquittal immediately becomes final 1. After lapse of period for perfecting an appeal; or
2. When sentence partially or totally satisfied or
and executory. If the accused is found guilty, penalty and
served; or
civil liability will be imposed on him.
3. Accused has expressly waived in writing his right to
3. Accused may be convicted of appeal, EXCEPT in cases of automatic review where
death penalty is imposed
1. The offense charged 4. Accused has applied for probation
2. A lesser offense necessarily included in the offense
charged 7. Only a judgment in conviction can be modified or set
Accused cannot be convicted for an offense graver aside
than that charged (People vs. Guevarra)
1. Before judgment had been final (otherwise double
jeopardy);
4. Contents
2. Before appeal had been perfected; or
1. Written in official language 3. To correct clerical errors in the judgment
2. Personally prepared and signed by the judge
8. Remedies
3. Contains facts proved
4. Contains law upon which judgment is based
a. Appeal
In case of conviction, judgment must state:
1. Legal qualification of offense and aggravating and Filed within 15 days of promulgation of judgment
mitigating circumstances
2. Level of participation Period is interrupted by filing of a motion for new trial
3. Penalty imposed or reconsideration
4. Civil liability for damages, unless right to separate
civil action has been reserved On motion of accused or at its own instance with
In case of acquittal, judgment must state: consent of the accused

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b. Motion for reconsideration
Filed when there are errors of law or fact in the
judgment
Shall require no further proceedings
Notice should be given to the fiscal
c. Motion for new trial
Notice should be given to the fiscal
Filed on the following grounds:
1. Error of law or irregularities have been made
during trial which are prejudicial to the substantial
rights of the accused
ii. New evidence has been found which could not have
been found before and which could change the judgment
9. Procedure for new trial
1. Hearing shall be set and held
2. All evidence not alleged to be in error shall stand
3. New evidence will be introduced
4. Old judgment may be set aside and a new one
rendered
10. Notes:
Suspension of sentence for youthful offenders after
conviction, minor is committed to custody and care of
DSWD or any training institution until reaches 21 years of
age, or a shorter period
Probation disposition under which a defendant after
conviction and sentences, is released subject to
conditions imposed by the court and to the supervision of
a probation officer
Parole the conditional release of an offender from a
penal or correctional institution after he has served the
minimum period of his prison sentence under the
continued custody of the state and under conditions that
permit his reincarceration if he violated the conditions of
his release
Rule 121 New Trial or Reconsideration
1. Reopening of the case
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1. Made by the court before judgment is rendered in
the exercise of sound discretion
2. Does not require consent of accused
3. May be made at the instance of either party who
can thereafter present additional evidence
2. Motion for new trial
1. Filed after judgment is rendered but before the
finality thereof
2. At the instance or with the consent of the accused
3. The prosecution can move only for the
reconsideration of the judgment but cannot
present additional evidence
3. Motion for New Trial is denied if:
1. Only impeaching evidence is sought to be
introduced as the court had already passed upon
issue of credibility
2. Only corroborative evidence is offered
3. Prisoner admits commission of crime with which
accused is charged (facility with which such
confession can be obtained and fabricated)
4. Alleged new evidence is inherently improbable and
could easily be concocted
5. Alleged new evidence consists of recantations of
prosecution witness, due to unreliability of such
recantations, EXCEPT if no other evidence to
sustain conviction aside from recanted testimony
4. New Trial vs. Reconsideration
Motion for recon is based on the grounds of errors of
law in the judgment is court is not asked to reopen the
case for further proceedings, but to reconsider its
findings or conclusions of law and make them
conformable to the law applicable to the case on the
judgment the court has to render anew.
5. New Trial vs. Modification of Judgment
In New Trial, irregularities are expunged from the
record and/or new evidence is introduced. In
modification of judgment, no new hearings or
proceedings of any kind or change in the record or
evidence. A simple modification is made on the basis of
what is on the record.

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6. New Trial vs. Reopening of the Case
New trial presupposes that existence of a judgment to
be set aside upon the granting of a new trial
In reopening, no judgment has yet been rendered,
although the hearing may have already been closed
7. Motion for Reconsideration
Grounds are errors of law or fact in judgment, which
require no further proceedings.
8. Effects of Granting Motion for New Trial or
Reconsideration
a. Based on error of law or irregularities during trial:
Proceedings and evidence not affected by irregularities
stand, and those affected are set aside. Court may allow
introduction of new evidence
b. Based on newly discovered evidence:
Evidence already taken shall stand; new evidence taken
with the old
Rule 122 Appeal
1. Procedure
a. Filed with RTC, if original case was with MTC
Notice served to lower court and to adverse party
b. Filed with the CA or SC, if original case was with RTC
i. With CA: notice of appeal with court, and with copy
on adverse party
If CA is of opinion that penalty should be reclusion
perpetua or higher, it shall render judgment imposing
said penalty, but refrain from entering judgment and
then certify the case and the entire record thereof to the
SC for review (R124, 13)
CA may reverse, affirm, or modify judgment of RTC, or
remand case for new trial or re-trial, or dismiss the case
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If RTC decided case in appellate jurisdiction: Petition
for Review
ii. With SC: notice of appeal where penalty imposed is
life imprisonment, or lesser penalty involving offenses
committed on the same occasion, or arising out of same
occurrence where graver penalty of death is available but
life imprisonment is imposed; all other cases, by petition
for review on certiorari
If death penalty, automatic review
iii. Withdrawal of appeal
May be made at any time before judgment on the
appeal is rendered
Lower court judgment becomes final
Case remanded for execution of judgment
Once notice of appeal is filed, cannot be validly
withdrawn to give way for a Motion for Recon or a
Motion for New Trial, since the filing of the notice
perfected the appeal, and the trial court loses its power
to modify or set aside the judgment. The only valid
withdrawal of an appeal is where the accused decides to
serve his sentence.
2. Effect of appeal by any of several accused
1. Shall not affect those who did not appeal, EXCEPT
if favorable and applicable to them
2. Civil appeal by offended party shall not affect
criminal aspect of judgment
3. Execution of judgment on appellant will be stayed
upon perfection of appeal
3. When appeal by prosecution from order of dismissal
of criminal case will not result in double jeopardy
1. Dismissal made upon motion or with express
consent of the accused
2. Dismissal is not an acquittal nor based upon
consideration of the evidence or merits of the case
3. Question to be passed upon by the appellate court
is purely legal so that if the dismissal is found
incorrect, the case has to be remanded to the

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court of origin to determine the guilt or innocence
of the accused
4. When serving sentence, remedy is to petition
for habeas corpus
1. Filed when the law under which the accused was
convicted is repealed or declared unconstitutional
2. When a later judgment is rendered acquitting
others for similar circumstances
Otherwise, equal protection is violated
1. When penalty is lowered and convict has already
served more than the maximum period of the new
penalty
Habeas corpus is available when a person is imprisoned
beyond the maximum penalty imposed by law (Gumabon
vs. Dir. of Prisons)
NOTE: When dismissal is capricious, certiorari lies and no
double jeopardy since validity and not correctness of
dismissal is being challenged.
Rule 126 Search and Seizure
1. Search warrant 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
Cannot be issued to look for evidence (Uy Khetin vs.
Villareal)
Seizing objects to be used as evidence is equivalent to
forcing one to be a witness against himself (Uy Khetin vs.
Villareal)
For a warrant to be valid, it must meet the
requirements set by law (Burgos vs. Chief of Staff)
Tapping conversations is equivalent to a search and
seizure (US vs. Katz)
2. General Rule: No search or seizure can be conducted
unless it is authorized by a search warrant. Evidence
gathered from an illegal search and seizure is
inadmissible.
Warrantless searches are illegal, unreasonable and
unconstitutional (Alvarez vs. CFI)
It is not the police action which is impermissible, but
the procedure and unreasonable character by which it is
exercised (Guazon vs. de Villa)
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Court gains jurisdiction over items seized by a valid
search warrant and returned to it, and such is not an
unconstitutional deprivation of property (Villanueva vs.
Querubin)
Evidence from an illegal search may be used as
evidence, if no objection is raised (Stonehill vs. Diokno)
Right against unreasonable search and seizure may be
waived, but for the waiver to be effective:
1. The right must exist
2. Person must be aware of the right
3. Person clearly shows the intent to relinquish such
right
No waiver against unreasonable search and seizure
when one compromises the criminal proceedings (Alvarez
vs. CFI)
There is no waiver of right when evidence of coercion is
present (Roan vs. Gonzales)
3. Requisites of a valid search warrant
a. Issued upon probable cause
Probable cause such facts and circumstances which
would lead a reasonably prudent man to believe that a
crime has been committed and the thing to be searched
for and seized is in the place to be searched
b. Probable cause is personally determined by the
issuing judge
Hence, signed by him
By any RTC, to be served anywhere in the country, for
an offense which occurred anywhere in the country
(Malaloan vs. CA)
c. Issuing judge personally examined, in the form of
searching questions, the appellant and his witness and
took down their written depositions
d. Search warrant particularly describes or identifies the
property to be seized
Property which men may lawfully possess may not be
the object of a search warrant (Uy Khetin vs. Villareal)

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Nature of goods may allow description to be general or
not too technical (Alvarez vs. CFI)
e. Particularly describes the place to be searched
f. It shall issue only for one specific offense
Otherwise, cannot be said to have issued upon
probable cause (Asian Surety vs. Herrera)
Absence of specific offense makes impossible
determination of probable cause (Stonehill vs. Diokno)
g. Was not issued for more than 10 days prior to a
search made pursuant thereto (search warrant becomes
void after 10 days)
h. Indicates time, if to be served at night
4. When a search warrant may be said to particularly
describe the thing to be seized
1. Description is as specific as circumstances allow
2. Expresses a conclusion of fact by which the
warrant officer may be guided
3. Things described are limited to those which bear a
direct relation to the offense for which the warrant
is issued
5. Procedure
a. Complainant files application, attaches affidavits
Oath requires that the person taking it personally
knows the facts of the case (People vs. Sy Juco)
Affidavits submitted must state that the premises is
occupied by the person against whom the warrant is
issued, that the objects to be seized are fruits or means of
committing a crime, and that they belong to the same
person, thus, not affecting third persons (People vs. Sy
Juco)
When complainants knowledge is hearsay, affidavits of
witnesses are necessary (Alvarez vs. CFI)
b. Judge conducts ex parte preliminary examination of
complainant and witnesses under oath to determine
probable cause
Judge must ask probing questions, not just repeat facts
in the affidavit (Roan vs. Gonzales)
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c. Judge issues search warrant good for 10 days
d. Peace officer in presence of occupant, members of
the family OR 2 witnesses of sufficient age and discretion
residing in the same locality
Search may last for more than a day as long as it is part
of the same search for the same purpose and of the same
place (Uy Khetin vs. Villareal)
e. Peace officer leaves receipt with occupant at place
searched
f. Peace officer files return of search warrant and
inventory, and surrenders items seized to receiving court
(not necessarily court which issued the warrant)
Items seized illegally must remain in custodia
legis pending resolution of the case (Roan vs. Gonzales)
6. Remedies from an unlawful search
1. MTQ the warrant
2. Motion to suppress as evidence the objects
illegally taken
3. Return of property illegally seized
7. When a search may be validly conducted without a
warrant
1. Without consent of person searched
2. When the search is incident to a lawful arrest
3. Personal knowledge of the arresting person
(Posadas vs. CA)
4. Limited to:
(1) Immediate time of arrest
(2) Immediate vicinity of the arrest
(3) Weapons and things which may be used as proof of
offense charged (Nolasco vs. Pano)
iii. Subject in an offense which is mala prohibita cannot
be summarily seized (Roan vs. Gonzales)
iv. May extend beyond arrestee to include premises and
surrounding under his immediate control
1. Border searches (customs, mail and airport)
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2. Vessels and aircrafts for violation of Tariff and
Customs Code, EXCEPT dwelling houses
3. Plain view
4. Moving vehicle
5. Hot pursuit
6. Stop-and-frisk, reasonable check-points
7. Private searches with no state action (People vs.
Marti)
8. Inspection of building and premises for
enforcement of fire, sanitary and building
regulations
8. Person making the arrest may take from the arrestee
1. Properties used in the commission of the crime
2. Fruits or proceeds thereof
3. Property which may furnish the arrestee with a
weapon against the arresting person
4. Property which may be used as evidence at the
trial
9. NOTES:
1. Attachment as provisional remedy in criminal cases
1. Accused is about to abscond from RP
2. Criminal action is based on a claim for money or
property embezzled or fraudulently misapplied or
converted to the use of the accused who is a public
officer, or any officer of a corporation, or an
attorney, factor, broker, agent or clerk in a
fiduciary capacity, in willful violation of duty
3. Accused has concealed, removed or disposed of his
property, or is about to do so
4. Accused resides outside the RP
Reference:
Remedial Law (Criminal Procedure) Memory Aid
Ateneo Central Bar Operations 2001

Constitution, Art. III, Sec. 2

The right of the people to be secure in their persons,

papers, houses and effects against unreasonable searches
and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be
seized.

Constitution, Art. III, Sec. 3

1. The privacy of communication and

correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
2. Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in the proceeding.
3.

Rule 127 Provisional Remedies in Criminal Cases