Criminal Procedure

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CRIMINAL PROCEDURE
(WITH THE 2000 AMENDMENTS)

PRELIMINARIES
CRIMINAL PROCEDURE CRIMINAL LAW Method fixed by law for the apprehension Branch of the law which declares what acts and prosecution of a person who is are classified as crimes, and prescribes the accused of a crime and for his punishment, punishment for committing them whenever convicted CRIMINAL JURISDICTION – is the authority to hear and try a particular offense and impose the punishment for it. (People vs. Mariano, 71 SCRA 600) Elements of a Criminal Jurisdiction: 1. Nature of offense and/or the penalty attached thereto; 2. Territorial jurisdiction of the court, i.e. place of commission of the crime; *** Jurisdiction is determined by the extent of the penalty which the law imposes, on the basis of the facts as recited in the complaint or information constitutive of the offense charged.
*** Jurisdiction of criminal court is determined by the nature of offense and/or penalty attached thereto as reflected in the averments in the complaint or information; (People vs. Magallanes 249 SCRA 212)

Not determined by: 1) what may be meted out to the offender after trial 2) the result of the evidence that would be presented during the trial Jurisdiction is retained regardless of: 1) whether the evidence proves a lesser offense than that charged in the information, 2) the subsequent happening of events, although of a character which would have prevented jurisdiction from attaching in the first instance.
*** Jurisdiction of criminal court is determined not by the penalty finally imposed but the penalty imposable under the law for the offense (Dioquino vs. Cruz Sept. 9, 1982) > Thus, any circumstances which may affect criminal liability like mitigating or aggravating circumstances must not be considered in determining jurisdiction (Guevarra vs. Almodovar 169 SCRA 476) *** Once vested, jurisdiction cannot be withdrawn or defeated by a subsequent valid amendment of the information (People vs. Chupeco 10 SCRA 640)

GENERAL RULE: Jurisdiction of a court to try criminal action is to be determined by the law at the time of the institution of the action. EXCEPTION: where the statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case, the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal which will continue the proceeding. DETERMINATION OF JURISDICTION – BASED ON PENALTY IMPOSED RTC- exceeding 6 years MTC- below 6 years
*** The additional penalty for HABITUAL DELINQUENCY is not considered in determining which court shall have jurisdiction over a criminal case because such delinquency is not a crime

*** Cases wherein FINE is the only penalty: RTC- more than 4,000 (except: Reckless Imprudence – always MTC ) MTC- less than 4,000
*** Where penalty of imprisonment for reckless imprudence falls within MTC but the fine falls within RTC, jurisdiction is determined not by the penalty on physical injuries but by the fine imposable (People vs. Malabanan 2 SCRA 1185)

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*** Where the charge involves a complex crime, jurisdiction of the court is determined by looking at the most serious penalty imposable of an offense forming part of the complex crime (Cuyos vs. Garcia 160 SCRA 302) *** Where the imposable penalty involves not imprisonment but destierro only, the jurisdiction falls within the MTC, destierro under RPC is following arresto mayor (People vs. Eduarte 182 SCRA 750) *** Where the action involves libel, although punishable by prision correcional, the jurisdiction to try the same falls within RTC (People vs. MTC of QC 265 SCRA 645) *** Where the case involves violation of dangerous drugs act, regardless of its penalty, jurisdiction falls within the RTC (People vs. Morales 283 SCRA 211)

*** VENUE IS JURISDICTIONAL. Thus: Action must be instituted and tried in the municipality or territory where the offense has been committed or where any one of the essential ingredients thereof took place.
*** Territorial jurisdiction of the court is determined by the allegations in the complaint or information as to the situs of the crime (Colmenares vs. Villar May 29, 1970) *** In the absence of all RTC judges in a province or city, any MTC judge may hear and decide petitions for a writ of Habeas Corpus or applications for bail in criminal cases in the province or city where the absent RTC judges sit

*** GENERAL RULE: the question of jurisdiction may be raised at any stage of the proceedings. EXCEPTION: may not be raised for the first time on appeal, where there has been estoppel and laches on the party who raises the question. JURISDICTION OVER THE TERRITORY WHERE THE OFFENSE WAS COMMITTED; GENERAL RULE: A criminal case should be instituted and tried in the place where the offense was committed or any of its essential ingredients took place (People vs. Mercado 65 Phil 665) EXCEPTIONS: 1. SC may order change or transfer of venue to avoid a miscarriage of justice; 2. Offenses outside of Phils under Art. 2 of RPC; 3. When the law expressly provides such as offenses cognizable by Sandiganbayan; 4. Under the Rules of Court on venue where crime was committed on board an aircraft, vehicle or vessel; 5. Continuing crime which may be filed anywhere where the accused is arrested (Umil vs. Ramos) 6. Libel or written defamation which may be filed in different venue; 7. Piracy which is triable anywhere (US vs. Lol-lo 43 Phil 1) JURISDICTION OVER THE PERSON OF THE ACCUSED - it is acquired by his/her arrest or voluntary appearance (Republic vs. Sunga 162 SCRA 191), in person or through counsel, (Layosa vs. Rodriguez Nov. 10, 1978) in court by filing a pleading in the court where the action was filed. Exceptions: Jurisdiction over the person presupposes that accused is within the Phil. Territory and within the physical control of the court. Hence, if accused is in the US where he filed a motion to dismiss, no jurisdiction was acquired.
SANCHEZ vs. DEMETRIOU, et al. (G.R. No. 111771 November 9, 1992) If the accused filed a “Motion to Quash” the information on the ground that the Court had no jurisdiction over his person and, on the additional grounds that he was not accorded a valid preliminary investigation and that the information were discriminatory and that the Sandiganbayan had exclusive jurisdiction over the offense, he thereby submitted himself to the jurisdiction of the court. Even if the accused was arrested illegally but later the court where the case was filed issued a warrant for his arrest and the accused was arrested on the basis of said warrant, the court acquired jurisdiction over his person. GIMINEZ, et al. vs. NAZARENO (160 SCRA 1) Where the detained accused has been arraigned but escapes before trial, the jurisdiction acquired by the court over his person continues until the termination of the case, notwithstanding the escape of the accused. The court may hold trial against the accused in absentia and after trial, should render a decision. Where the accused escapes, he thereby waives his right to cross-examine the witnesses of the prosecution, his right to present evidence in his behalf and to confront the witnesses against him.

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PEOPLE vs. MAPALAO (G.R. No. L-92415 May 14, 1991) If the accused escapes from confinement or prison before arraignment, and/or remain at large after the filing of the information he has no standing in court and cannot apply for bail or be granted any other relief by the court until he submits himself to its jurisdiction or is arrested; once the accused is arrested and/or voluntary surrenders, he regains his standing in court. PEOPLE vs. REDOLUSA (255 SCRA 279) If the accused was meted the death penalty and accused escaped from detention, the Supreme Court should continue to resolve the appeal on the merits because the Supreme Court is mandated under the Constitution to do so.

SUMMARY OF CRIMINAL PROCEDURE:
a) Commission of a crime – rules in criminal jurisdiction comes into play s to what court should take cognizance of the act, whether the elements and requisites of valid exercise are present; b) Arrest of the Accused or Issuance of Search Warrant – Manner of applying for warrant of arrest and search warrant and incidental matters thereto; Rule 113 & 126 1. Issuance of warrant of arrest and search warrant; 2. Service of Warrant and Search Warrant; 3. Warrantless Arrest and Warrantless Search; c) Custodial Investigation – application of Miranda rights and the Escobedo doctrine and other concomitant rights of a person under investigation for an offense; d) Preliminary Investigation – and its procedural requirements; e) Filing of a complaint or information in the court including: 1. Prosecution of Criminal action and required Form and Substance of complaint or information; 2. Rules on Amendments, Substitution and Venue of criminal action; 3. Prosecution of civil action arising from the crime and independent civil action + prejudicial question. f) Application to Admit Bail and related rules and also in relation to hold departure order (HDO); g) Motion to Quash by the accused and double jeopardy; h) Arraignment and Plea of the accused and plea bargaining; i) Pre-trial and its procedural requirements; j) Trial and the Speedy Trial Act of 1991 and the Rights of the Accused during the trial; k) Remedies Available During Trial including demurrer to evidence and discharge to be a state witness; l) Judgment by the court and promulgation of decision; m) Remedies of the accused and after judgment including new trial and reconsideration and automatic review; n) Execution of Service of Sentence by the convict;

RULE 110 PROSECUTION OF OFFENSES
2000 Amendment Sec. 1. Institution of criminal actions. – Criminal actions shall be instituted as follows: (A) FOR OFFENSES WHERE A PRELIMINARY INVESTIGATION IS REQUIRED PURSUANT TO SECTION 1 OF RULE 112, 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 Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and

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other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters. THE INSTITUTION OF THE CRIMINAL ACTION SHALL INTERRUPT THE RUNNING OF THE PERIOD OF PRESCRIPTION OF THE OFFENSE CHARGED UNLESS OTHERWISE PROVIDED IN SPECIAL LAWS. ________
*** A case prescribes if filed after the prescriptive period although the last day of the prescriptive period is Sunday, a legal holiday or a Saturday ZALDIVIA vs. JUDGE REYES (211 SCRA 377) The filing of the criminal complaint for preliminary investigation suspends the running of the prescriptive period for the crime. Where the crime is a violation of an ordinance and is covered by the Rules of Summary Procedure, the prescriptive period for the crime is suspended only when the information is filed in court. This is covered by Section 2 of Act 326. REODICA vs. COURT OF APPEALS (292 SCRA 87) However, if the crime covered by the Rules on Summary Procedure is a felony, then, the prescriptive period is suspended upon the institution of the criminal action with the Prosecutor’s Office.

The parties may go directly to court without submitting the matter upon the lupon chairman in the following cases: 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 the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and 4. where the action may otherwise be barred by the statute of limitations. Exceptions to the authority of the lupon of each barangay to bring together the parties actually residing in the same city or municipality for amicable settlement (confrontation and conciliation): 1. where one party is the government or any subdivision or instrumentality thereof; 2. where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 3. offenses where there is no private offended party; 4. where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 5. disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the other parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 6. such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. *** Where a preliminary investigation is required, the complaint must be filed with the proper officer for the purpose of conducting the investigation. *** The filing of a complaint for purposes of preliminary investigation starts the prosecution process. PRELIMINARY INVESTIGATION IS REQUIRED: Where the offense is punishable by imprisonment of at least four (4) years, two (2) months and one (1) day, without regard as to the fine except as provided in Section 7 of Rule 112. *** Under the amendment, the institution of ALL CRIMINAL ACTIONS shall be the same, including those offenses that are subject to the rule on Summary Procedure in relation to the interruption of the period of prescription. *** In the filing of all criminal actions, even those subject to summary procedure shall interrupt the running of the prescriptive period, except those punishable by special laws.
*** To be valid, PARDON must be tended before the institution of the action *** Marriage made in good faith between the offender & the offended party prevents the institution of the action > Other co-accused also benefits

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Section 3. Complaint defined Definition: 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.

* The complaint as defined under Sec. 3 is different from the complaint filed with the Prosecutor’s Office.
The complaint filed with the Prosecutor’s Office, from which the latter may initiate a preliminary investigation, refers to: 1) any written complaint 2) filed by an offended party or not 3) not necessarily under oath, except in 2 instances: a. complaint for commission of an offense which cannot be prosecuted de officio or is private in nature b. where the law requires that it is to be started by a complaint sworn to by the offended party, or when it pertains to those which need to be enforced by specified public officers. Requisites of a complaint: 1. it must be in writing and under oath; 2. it must charge a person with an offense; 3. it must be subscribed by the offended party, by any peace officer or public officer charged with the enforcement of the law violated PERSONS WHO CAN FILE A COMPLAINT: 1. Offended party (especially in personal crimes) 2. Any peace officer 3. Other public officer charged with the enforcement of the law violated 4. Chief of police in the municipality 5. Customs Authority 6. Forestry officials 7. Internal Revenue Officers 8. Officials of the Bureau of Posts
*** A private offense cannot be instituted except upon a written complaint of the offended party

*** Who is the real offended party? The People of the Philippines, but since the crime is also an outrage against the offended party, he is entitled to intervene in its prosecution in cases where the civil action is impliedly instituted therein. Under the Rule on Summary Procedure: - a complaint may be directly filed in the MTC, provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of information, which means by the prosecutor, except when the offense cannot be prosecuted de officio as in private crimes. Section 4. Information defined. Definition: An accusation in writing a person with an offense, subscribed by the prosecutor and filed with the court. Requisites of an information: 1. it must be in writing; 2. it must charge a person with an offense; 3. it must be subscribed by the fiscal; 4. it must be filed in court
COMPLAINT 1. sworn statement 2. subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated 3. it may be filed either in court or in the prosecutor’s office 4. usually refers to private crimes INFORMATION 1. need not be sworn 2. subscribed by the fiscal

3. it is filed with the court 4. usually refers to public crimes

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*** Any amendment to the complaint or information after arraignment without leave of court is void SANCHEZ vs. DEMETRIOU (G.R. No. 111771 November 9, 1992) The Prosecutor must include in the information all persons who are criminally liable of the crime charged. If the Prosecutor failed to do so, the aggrieved party may request the investigating prosecutor to amend the information to include those who had been omitted. If the Prosecutor refused, the aggrieved party may file a “Petition for Review” with the Secretary of Justice. If the latter denies the petition, then the aggrieved party may file a “Petition for Mandamus.”

Section 5. Who must prosecute criminal actions. FISCAL’S DISCRETION IN PROSECUTION FISCAL’S CONTROL – The prosecution of criminal action is an executive function, a power which must be exercised by fiscal without interference from the court as to the following discretionary matters: 1) Determination of what crime should be filed or what case to file (People vs. Pineda 20 SCRA 748) 2) Determination of who are the accused that should be included in information or whom to Prosecute (People vs. Devaras 228 SCRA 482) 3) The manner of prosecution or how he will prosecute (People vs. Nazareno 260 SCRA 256) 4) Right of prosecution to withdraw information before arraignment even without notice and hearing (Galvez vs. CA 237 SCRA 685) Prior to filing a case in court: 1. A prosecuting attorney cannot be compelled to file a particular information when he is convinced that he does not have the necessary evidence. 2. The court cannot interfere with the Fiscal’s discretion and control of the criminal prosecution. REMEDIES AGAINST ACTS OF FISCAL: 1) Mandamus if he refuses to include co-accused or amend information if evidence warrants the same; 2) Appeal to Secretary of DOJ for the exercise of its supervisory control; 3) Administrative case against erring fiscal either in CSC or in disbarment; 4) Criminal charges under Art. 208 of RPC for negligence to prosecute or tolerance of the crime; 5) Civil action for Damages under Art. 27 of NCC for failure to render service of public officer; 6) Appointment for another fiscal; 7) Refile the case in case no double jeopardy. After the filing of the case: 1. Once a case is filed in court, the court acquires jurisdiction and such continues until the termination of the case. 2. Criminal prosecution cannot be restrained or stayed by injunction, preliminary or final. 3. Prosecutor has no more control of the case and desired relief must be addressed to the court. COURT’S CONTROL- once the case is filed in the court and it acquired jurisdiction over the same, every action of the fiscal respecting the information or complaint is subject to the discretion of the court on the following matters: 1) Suspension of Arraignment (Crespo vs. Mogul) 2) Reinvestigation (Velasquez vs. Usec of DOJ 182 SCRA 388) 3) Downgrading an offense or dropping of an accused (Rule 110 Sec. 14) 4) Prosecution of the fiscal (Sta Rosa Mining vs. Zabala 153 SCRA 367) 5) Dismissal of the case (Dungog vs. CA 159 SCRA 145) LIMITATIONS OF THE COURT’S CONTROL: a) Prosecution is entitled to notice and hearing like admission to bail (Republic vs. Sunga) b) Court must await result of petition of review but in no case be more than 60 days from filing of petition (Rule 116 Section 11) c) Prosecution’s stand to maintain prosecution should be respected by the court (People vs. Montesa 248 SCRA 641) d) Court must make its own independent assessment of evidence in granting or dismissing motion to dismiss (Martinez vs. CA 237 SCRA 575) Otherwise, judgment is void.
CRESPO vs. MOGUL (157 SCRA 462) Distinction between control by the public prosecutor of the prosecution of the criminal case and control of the court of the disposition of the case. The prosecutor once the information is filed, retains the direction and control of the prosecution. However, the disposition of the case is the exclusive prerogative of the court.

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ROBERTS, JR. vs. COURT OF APPEALS (254 SCRA307) Under DOJ Circular No. 223, dated June 30, 1993, no appeal from a resolution of the City of Provincial Prosecutor of probable cause except when manifest error or grave abuse of discretion exists. In no case may appeal be made if the accused has already been arraigned. If the appellant had already been arraigned during the pendency of the appeal, the appeal shall be made motu proprio. An appeal/motion for reinvestigation from finding the probable cause shall not hold the filing of the information.

Offenses prosecuted only by the offended party: 1. Adultery and concubinage (by the offended spouse) 2. Seduction, abduction, and acts of lasciviousnes (by offended party, parents, grandparents, guardian, state) 3. Defamation – which consists in the imputation of an offense mentioned above (by offended party) *** RAPE is now classified under crimes against persons. It may now be filed by the prosecutor. (RA 8353) * Compliance is not jurisdictional, but merely a CONDITION PRECEDENT. In the sense that if noncompliance is not objected to, the action may still proceed. May a criminal prosecution be restrained by injunction? GENERAL RULE: No. Reason: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. EXCEPTIONS: 1) where injunction is justified by the necessity to afford protection to the constitutional rights of the accused 2) when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions 3) when there is a prejudicial question which is sub judice 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 has 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 the 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. PRIVATE PROSECUTOR PARTICIPATION: May a public prosecutor allow a private prosecutor to actively handle the conduct of the trial? Yes, where the civil action arising from the crime is deemed instituted in the criminal action. *** Public Prosecutor must be present during the proceedings and must take over the conduct of the trial from the private prosecutor at any time the cause of the prosecution may be adversely affected. Thus, where the prosecutor has turned over the active conduct of the trial to the private prosecutor who presented testimonial evidence even when the public prosecutor was absent during the trial, the evidence presented could not be considered valid evidence of the People. However, this rule applies only to courts which are provided by law with prosecutors, and not to municipal courts which have no trial prosecutors, in which case the evidence presented by the private prosecutor can be considered as evidence for the People. *** However, under an amendment made by the SC effective May 1, 2002, Rule 110 Section 5 now provides that “All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case

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subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn."
ILDEFONSO LINER, INC. vs. COURT OF APPEALS (289 SCRA 568) Where the employee is charged of reckless imprudence and resulting in damage to property and multiple physical injuries and the private complainant was represented by private prosecutor, the insurance company, which insured the damaged van and paid the proceeds of the insurance, cannot recover anymore, in a separate civil action against the accused. The insurance company, as a subrogee, merely stepped into the shoes of the aggrieved party.

RULE regarding SOLICITOR GENERAL GENERAL RULE: In appeals, the Sol. Gen. has control. He may abandon or discontinue the prosecution of the case in the exercise of his sound discretion and may even recommend the acquittal of an accused when he believes that the evidence does not warrant his conviction. EXCEPTION: provided for in RA 8249 which states in part that “in all cases elevated to the Sandiganbayan and from the SB to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A, issued in 1986.” Section 6. Sufficiency of complaint or information. Minimum requirements for a valid complaint or information: 1. Name of the accused, including any appellation or nickname -- When offense is committed by more than one person, all of them shall be included in the complaint or information 2. The designation of the offense by the statute 3. The acts or omissions complained of as constituting the offense 4. The name of the offended party 5. The approximate time of the commission of the offense 6. The place wherein the offense was committed Purpose: to safeguard the constitutional right of an accused to be informed of the nature and cause of the accusation against him.
*** When it is said that the requirement of Art. 344 of RPC is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the court to try the case.

Once the complaint is filed, does death of the complainant in a crime of adultery extinguish the criminal liability of the accused? No. The participation of the offended party in private crimes is essential not for the maintenance of the criminal action but solely for the initiation thereof. Any pardon given by the complainant or her death after the filing of the complaint would not deprive the court of the jurisdiction to try the case. THE DESISTANCE OF COMPLAINANT: > Does not bar the People from prosecuting the criminal action But: it does operate as a waiver of the right to pursue civil indemnity.
PEOPLE vs. ASUNCION (161 SCRA 490) If the information does not allege a negative averment which is an essential element of the crime, the defect cannot be cured evidence or want of license or authority to possess a firearm. The information does not exist in law and cannot thus be cured. Besides, that would deprive the accused of his right to be informed of the nature of the charge against him.

Sec. 7. Name of the accused * If name is known: the name and surname of the accused or any appellation or nickname by which he has been or is known. * If name cannot be ascertained: a fictitious name with a statement that his true name is unknown.

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* If true name thereafter disclosed: such true name shall be inserted in the complaint or information and record. *** While one or more persons, along with specified and named accused, may be sued as “John Does,” an information against all accused described as “John Does” is void, and an arrest warrant against them is also void. 2000 Amendment Sec. 8. Designation of the offense. – The complaint or information shall state the designation of the offense given by the statute; aver the acts or omissions constituting the offense, and SPECIFY ITS QUALIFYING AND AGGRAVATING CIRCUMSTANCES. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusation. – The acts or omissions complained of as constituting the offense AND THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged AS WELL AS ITS QUALIFYING AND AGGRAVATING CIRCUMSTANCES and for the court to pronounce judgment. ________ The information or complaint must state or designate the following whenever possible: 1. The designation given to the offense by the statute. 2. The statement of the acts or omissions constituting the same, in ordinary, concise & particular words. -- if there is no such designation, reference should be made to the section or subsection punishing it. 3. The specific qualifying and aggravating circumstances must be alleged. *** The title or designation of the offense is not controlling. It is the actual facts recited in the information that determines the nature of the crime. *** Allegations prevail over the designation of the offense in the information. The accused may therefore be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence. *** In case of a conflict between the designation of the crime and the recital of facts constituting the offense, the latter prevails over the former. *** The real question is not, did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime.
*** If one or more elements of the offense have not been alleged in the information, the accused cannot be convicted of the offense charged, even if the missing elements have been proved during trial  even the accused’s entering a plea of guilty to such defective information will not cure the defect nor justify his conviction of the offense charged

Limitation to the above rule: An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves: a) Change of the theory of the trial b) Requires the defendant a different defense c) Surprises the accused in anyway *** Complaint must include the time and place of commission, whenever necessary, and the name of the offended party. *** Qualifying and aggravating circumstances are now required to be alleged in the complaint or information. The failure to specifically allege either circumstance, even if proved, cannot be taken into account.

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CAUSE OF ACCUSATION *** If one or more elements of the offense have not been alleged in the information, the accused cannot be convicted of the offense charged, even if the missing elements have been proved during the trial. - Even the accused’s entering a plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged. *** Where the law alleged to have been violated: - prohibits generally acts therein defined - is intended to apply to all persons indiscriminately, - but prescribes certain limitations or exceptions from its violation the information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. *** Where the law alleged to have been violated… - applies only to specific classes of persons and special conditions - the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, the information must show that the accused does not fall within the exemptions. *** Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven. Sec. 10. Place of commission of the offense May conviction be had even if it appears that the crime was committed not at the place alleged in the information? Yes, provided the place of actual commission was within the jurisdiction of the court. Unless: the particular place of commission is an essential element of the offense charged. Sec. 11. Date of the commission of the offense What is the determinative factor in the resolution of the question involving a variance between the allegation and proof in respect of the date of the crime? The element of surprise on the part of the accused and his inability to defend himself properly. Section 12. Name of the offended party. *** In case of offenses against property, the designation of the name of the offended party is not absolutely indispensable; if unknown, the subject property must be described with particularity that it can be properly identified. *** To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another person, and indictment for such offense must name the owner and a variance in this respect between the indictment and the proof will be fatal.
PILAPIL vs. SOMERA (June 30, 1989) The offended party must have the capacity to file the criminal action at the time of the institution of the criminal action. So that even if the victim was still a minor at the time of the commission of the crime but the criminal action is filed when the offended party is already 18 years of age or above, only the offended party may give his consent to the charge.

Section 13. Duplicity of offense. GENERAL RULE: A single complaint or information must charge only one offense. EXCEPTION: Complex crimes -- where the law prescribes a single punishment for various crimes
*** Where what’ s alleged in the information is a COMPLEX CRIME and the evidence fails to support the charge as to the one of the component offenses, the defendant can only be convicted of the offense proven

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Waiver: *** When the accused fails, before arraignment, to move for the quashal of the information which charges 2 or more offenses, he thereby waives the objection and may be found guilty of as many offenses as those charged and proved during the trial. *** Where the law with respect to an offense which may be committed in any of the different modes provided by law, the indictment in the information is sufficient if the offense is alleged to have been committed in one, two or more modes specified therein. The various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. 2000 Amendment Sec. 14. Amendment or substitution. (now requires) – “any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party.” ________ *** Before entering plea, amendment of a complaint or information is a matter of right, in substance and in form.
*** Before the accused enters his plea, the prosecutor may: - upgrade the offense - allege qualifying and aggravating circumstances or - change the offense charged without leave of court, provided there is evidence thereon which has been presented during the preliminary investigation.

*** If the amendment downgrades the offense or excludes one of the accused, it can only be made upon motion by the prosecutor, with notice to the offended party and with leave of court.
*** The court shall state the reasons in resolving the motion and copies thereof furnished all parties, especially the offended party.

*** After the plea and during the trial, amendment is a matter of judicial discretion (requires leave of court) but only as to matters of form, and when the same can be done without prejudice to the rights of the accused.
*** Technically, paragraph 2 of Section 14 does not refer to amendment, but to substitution of the complaint or information by a new one. If the substitution is made before the accused enters his plea, the question of double jeopardy does not arise. If the filing of new information is done after the plea and before judgment on the ground that there has been a mistake in charging the proper offense, the filing thereof may only be allowed if it will not place the accused twice in jeopardy.

*** If a complaint is erroneous in charging the proper offense, the courts must dismiss it upon filing of a new one. (Sec. 19, Rule 119)
AMENDMENT 1. May involve either formal or substantial changes 2. Amendment before the plea has been entered can be effected without leave of court. 3. Amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused. 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. SUBSTITUTION OF INFORMATION OR COMPLAINT 1. Involves substantial change from the original charge 2. Substitution of information must be with leave of court as the original information has to be dismissed. 3. Another preliminary investigation is entailed and the accused has to plead anew to the new information 4. Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

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Substantial amendment – consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court; Formal Amendment – consists of amendments: 1. It does not involve a change in the basic theory of the prosecution 2. It does not affect nor alter the nature of the offense charged or 3. It does not deprive the accused of fair opportunity to present his defense. Limitation to the rule on substitution: 1. No judgment has yet been rendered. 2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein. 3. The accused would not be placed in double jeopardy. PREJUDICIAL TO THE ACCUSED means – where the proposed amendment: (i) the defense of the accused under the original information would no longer be available after amendment is made and (ii) when any evidence that the accused might have would be inapplicable to the amended information Test as to whether a defendant is prejudiced by an amendment: 1) whether a defense under the information as it originally stood would be available after the amendment is made, and 2) whether any evidence defendant might have would be equally applicable to the information in the new form as in the other.
*** Amendment for purposes of including an additional accused is only amendment as to from since there was no change of prosecution’s theory (People vs. CA 1988) However, amendment for purposes of including an additional accused but introducing alternative imputation inconsistent with the original information is a substantial amendment (People vs. Zulueta 23 Phil 300)

GENERAL RULE: after arraignment, the prosecutor may no longer amend the information which changes the nature of the crime, as it will prejudice the substantial rights of the accused. EXCEPTION: when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact. However: if the supervening event which changes the nature of the crime to a more serious one occurred after the accused has been convicted, which makes the amendment of the information no longer the remedy of the prosecution, the prosecution can and should charge the accused for such more serious crime, without placing the accused in double jeopardy, there being no identity of the offense charged in the first information and in the second one. *** Section 14 applies only to original case and not to appealed case.
GALVEZ vs. COURT OF APPEALS (237 SCRA 685) There is no need for notice of hearing of an ex-parte motion to withdraw information if filed before arraignment. Under Section 19, Rule 119 of the 1985 Rules of Summary Procedure, where it becomes manifest that there is a mistake in charging the proper offense, the Court, may during trial, motu proprio, order the prosecution to charge the proper offense or the prosecution of the accused may so move, This is done during trial. An order based on Nolle Prosequi is an order of dismissal. If a case is dismissed on a Nolle Prosequi, before arraignment, the same may be refiled in a court other than where the original case was filed without violating the rule that the court first acquiring the jurisdiction will retain the case until it is terminated because the jurisdiction of the court in the original case terminated upon the nolle prosequi. PEOPLE vs. MONTENEGRO (G.R. No. 45772 March 25, 1988) An amendment which merely states with additional precision something which is already contained in the original information and which therefore, adds nothing essential for conviction for the crime charged, is an amendment of form that can be made at anytime. TEEHANKEE vs. JUDGE MADAYAG (G.R. No. 103102 March 6, 1992) Death of a victim is a supervening event, thus if the accused was charged of frustrated homicide and during the trial the victim died, the amendment from frustrated homicide to homicide is merely formal and not a substantial amendment.

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CEFERINO REGALA vs. JUDGE (77 PHIL 684) The Supreme Court held that it was merely a formal amendment where, in the amended information, two other accused were included and an allegation of conspiracy was incorporated. The allegation of conspiracy did not change the theory of the prosecution that the accused did commit the crime deliberately.

Transitory and continuing offenses distinguished: TRANSITORY OFFENSE – one where any of the essential elements of the offense took place in different places CONTINUING OFFENSE – one which is consummated in one place, yet by reason of the nature of the offense, the violation of the law is deemed continuing. *** offenses are continuing or transitory upon the theory that there is a new commission, continuance or repetition of the offense wherever the defendant may be found. *** in both offenses, the court of either province, in which some acts material and essential to the crime and requisite to its consummation occur, has jurisdiction; it being understood that the first court taking cognizance of the case will exclude the others. Section 15. Place where action is to be instituted. *** Venue in criminal case is jurisdictional, being an essential element of jurisdiction. GENERAL RULE: Penal laws are territorial; hence Philippine courts have no jurisdiction over crimes committed outside the Philippines. EXCEPTIONS: those provided in Article 2 of the Revised Penal Code. Those who commit any of the crimes contemplated therein can be tried by Philippine courts.
*** A crime may be prosecuted where it was committed or where any of the elements of the offense occurred

*** To determine the correct venue, the vital point is the allegation in the complaint or information of the situs of the offense charged. If the complaint or information alleges that the crime was committed in the place where the court has jurisdiction, then the court can hear and decide the case. *** Venue in criminal cases is an element of jurisdiction; hence it cannot be waived, or changed by agreement of the parties, or by the consent of the defendant. *** Where the crime charged is a complex crime, the RTC of any province in which any one of the essential elements of such complex crime had been committed has jurisdiction to take cognizance of the offense. Continuing offense vs. local offense CONTINUING OFFENSE is one where the elements of which occur in several places, unlike a LOCAL OFFENSE - one which is fully consummated in one place. OFFENSES SUBJECT OF SPECIAL VENUE – from the phrase “Subject to Existing Laws”: 1) Cases cognizable by Sandiganbayan regardless of the place of commission as long as it involves public officer in relation to his office with a Grade of 27 or higher; 2) Libel may be cognizable by the court of the place where (1) the first articles was published (2) residence of offended party; 3) Transfer of venue to avoid miscarriage of justice under the 1987 Constitution 4) Piracy which is triable anywhere (US vs. Lol-lo 43 Phil 1) PIRACY – The jurisdiction of piracy, unlike all other crimes, has no territorial limits. In BP 22 cases, file case: 1) Where check was delivered 2) Where check was dishonored 3) If crossed-check, place of depository or collecting bank

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EXAMPLES OF VENUE OF CRIMES CRIME VENUE THEFT Place where taking was effected or consummated no the place of recovery. FALSIFICATION Place where the subject documents was actually falsified not the place of use. ESTAFA OR Place where deceit was actually committed or where he is duty bound to MALVERSATION account the goods BP 22 Place where the check was issued or where it bounced PERJURY Place where it was presented not where it was executed KIDNAPPING OR Place where person was deprived of liberty ILLEGAL DETENTION ESCAPE OR EVASION Place where prisoner escaped or where he may be found OF SERVICE OF SENTENCE VIOLATION OF Place where violation was committed CONDITIONAL PARDON LIBEL Place where the article was printed and was first published or where offended party actually resides or where a public officer is involve in RTC of that place.

Section 16. Intervention of the offended party in criminal action. *** It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. The witness, even if they are the complaining witnesses, cannot act for the prosecutor in the handling of the case. Their only function is to testify. *** Where the offended party withdrew a reservation to file a separate civil action, the private prosecutor may still intervene in the prosecution of the criminal case, by conducting the examination of witnesses under the control of the prosecutor. *** However: once the offended party has filed a separate civil action arising from the crime, he may not withdraw such civil case in order to intervene in the criminal prosecution. He loses the right to intervene. He no longer has any standing in the criminal case, except to be a prosecution witness. Where a criminal action has been provisionally dismissed upon motion of the prosecutor, can the case be revived upon motion of the offended party? No, because the offended party or complaining witness cannot act for the prosecutor.

RULE 111 PROSECUTION OF CIVIL ACTIONS
LIMITED TO THOSE ARISING FROM THE OFFENSE CHARGED. 2000 Amendment Sec. 1. Institution of criminal and civil actions. – (a) When a criminal action is instituted, the civil action for the recovery of civil liability ARISING FROM THE OFFENSE CHARGED SHALL BE DEEMED instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. *** EXCEPT AS OTHERWISE PROVIDED IN THESE RULES, NO FILING FEES SHALL BE REQUIRED FOR ACTUAL DAMAGES. NO COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT MAY BE FILED BY THE ACCUSED IN THE CRIMINAL CASE, BUT ANY CAUSE OF ACTION WHICH COULD HAVE BEEN THE SUBJECT THEREOF MAY BE LITIGATED IN A SEPARATE CIVIL ACTION.

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(B) THE CRIMINAL ACTION FOR VIOLATION OF BATAS PAMBANSA BLG. 22 SHALL BE DEEMED TO INCLUDE THE CORRESPONDING CIVIL ACTION. NO RESERVATION TO FILE SUCH CIVIL ACTION SEPARATELY SHALL BE ALLOWED. UPON FILING OF THE AFORESAID JOINT CRIMINAL AND CIVIL ACTIONS, THE OFFENDED PARTY SHALL PAY IN FULL THE FILING FEES BASED ON THE AMOUNT OF THE CHECK INVOLVED, WHICH SHALL BE CONSIDERED AS THE ACTUAL DAMAGES CLAIMED. WHERE THE COMPLAINT OR INFORMATION ALSO SEEKS TO RECOVER LIQUIDATED, MORAL, NOMINAL, TEMPERATE OR EXEMPLARY DAMAGES, THE OFFENDED PARTY SHALL PAY ADDITIONAL FILING FEES BASED ON THE AMOUNTS ALLEGED THEREIN. IF THE AMOUNTS ARE NOT SO ALLEGED BUT ANY OF THESE DAMAGES ARE SUBSEQUENTLY AWARDED BY THE COURT, THE FILING FEES BASED ON THE AMOUNT AWARDED SHALL CONSTITUTE A FIRST LIEN ON THE JUDGMENT. WHERE THE CIVIL ACTION HAS BEEN FILED SEPARATELY AND TRIAL THEREOF HAS NOT YET COMMENCED, IT MAY BE CONSOLIDATED WITH THE CRIMINAL ACTION UPON APPLICATION WITH THE COURT TRYING THE LATTER CASE. IF THE APPLICATION IS GRANTED, THE TRIAL OF BOTH ACTIONS SHALL PROCEED IN ACCORDANCE WITH SECTION 2 OF THIS RULE GOVERNING CONSOLIDATION OF THE CIVIL AND CRIMINAL ACTIONS. (Circ. 57-97) ________ *** Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal; it may and should be enforced only in a single proceeding to avoid multiplicity of suits. *** The 1988 amendments on implied institution of criminal and civil actions arising from the same act or omission including damages under Arts. 32,33,34 and 2176 of the Civil Code no longer applies. They are no longer deemed impliedly instituted with the criminal action or considered as waived even if there is no reservation. Quasi-delict is no longer deemed instituted with the criminal action. *** The present rule virtually adopts the ruling in Elcano vs. Hill (77 SCRA 98) where it was expressly held that the extinction of the civil liability referred to in paragraph c, Sec. 2 of Rule 111, refers exclusively to civil liability arising from crime; whereas, the civil liability for the same act considered as a quasi-delict is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. *** Both actions may proceed separately; the only limitation is the prohibition to recover damages twice based on the same act or omission. *** Recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission may be prosecuted separately even without a reservation. The reservation and waiver herein refers only to the civil action for the recovery of civil liability arising from the offense charged. *** The employer may not be held civilly liable for quasi-delict in the criminal action as ruled in Maniago v. Court of Appeals since quasi-delict is not deemed instituted with the criminal. If at all, the only civil liability of the employer in the criminal action would be his subsidiary liability under the Revised Penal Code. Instances when civil liability arising from offense charged not concurrently determined in the criminal action: 1. when the offended party waives the civil action 2. when the offended party reserves his right to institute a separate civil action 3. when the offended party institutes a civil action prior to the criminal action. WHEN RESERVATION SHALL BE MADE: Reservation to institute a separate civil action shall be made: 1. before the prosecution starts to present its evidence 2. under circumstances affording the offended party to a reasonable opportunity to make such reservation. PURPOSE: to prevent the offended party from recovering damages twice for the same act or omission. *** The reservation applies only to the civil liability arising from the offense charged

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*** The rule requiring reservation to file a separate civil action does not apply to civil actions which can be filed and prosecuted independently of the criminal action, namely, those provided in Arts. 32, 33, 34 and 2176 of the Civil Code. Two instances where no reservation shall be allowed: 1) a criminal action for violation of BP 22 - unless a separate civil action has been filed before the institution of the criminal action, no such civil action can be instituted after the criminal action has been filed as the same has been included therein. 2) A claim arising from an offense which is cognizable by the Sandiganbayan. - a civil action filed prior to the criminal action has to be transferred to the subsequently filed criminal action for joint hearing (Sec. 4 of PD1606 as amended by RA 8249)
MANIAGO vs. COURT OF APPEALS (252 SCRA 674) If the aggrieved party makes a reservation or institutes a separate civil action against the employer under Art. 2180 of the NCC, then, there will be no civil liability against the employee to be pronounced by the court. If there is no reservation and the aggrieved party did not file a separate civil action against the employer and the court convicts the employee, the judgment of the court is binding on the employer on the latter’s subsidiary liability and hence, if the employee is found involved, the aggrieved party may be issued a writ of execution for the enforcement of the civil liability against the employer. This is without prejudice to the recovery of the employer against the employee.

ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR CONTINUATION OF THE CIVIL CASE WHERE: 1. the acquittal is based on reasonable doubt 2. the decision contains a declaration that the liability of the accused is not criminal but only civil 3. the civil liability is not derived from or based on the criminal act of which the accused is acquitted. Important!: Section 1, Rule 111 now expressly provides that no counterclaim, cross-claim or thirdparty complaint may be filed by the accused in the criminal case, but any cause of action which could have been subject thereof may be litigated in a separate civil action. Reasons: 1) the counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings; 2) the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. In BP 22 cases, the civil action is mandatorily included in the criminal action. Filing fee shall be based on the amount of the check involved (actual damage). In other cases, no filing fees shall be required for actual damages.
JAVIER vs. INTERMEDIATE APPELLATE COURT (171 SCRA 605) On the civil action for the civil liability of the accused is impliedly instituted with the criminal action. The claim for damages of the accused against the private complainant is not impliedly reserved. The court must limit the determination of the criminal liability of the accused and the civil liability of the accused arising from the criminal case.

*** Although the criminal and civil actions may be joined in the criminal case, they are distinct from each other. The plaintiffs in the two actions are different. Thus: even if the accused started serving his sentence within the 15-day period from the promulgation of the judgment of conviction by the lower court, thereby making the judgment against him final, the complainant may, within the 15-day reglementary period, still ask that the civil liability be fixed by the court, if the judgment does not adjudicate any civil liability, as the judgment regarding civil liability has not become final and the court still has jurisdiction to adjudge the civil liability.
*** The offended party in a criminal case may appeal the civil aspect despite the acquittal of the accused. *** Where the trial court convicted the accused, but dismissed the civil action instituted therein, the offended party may appeal the dismissal to the CA.

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COMPROMISE ON CIVIL ASPECT: * The offended party may compromise the civil aspect of a crime, provided that it must be entered before or during the litigation, and not after final judgment. A compromise on the civil aspect is valid even if it turns out to be unsatisfactory either to one or both of the parties. RULES ON FILING FEES: No filing fees are required for amounts of actual damages. Exception: criminal action for violation of BP 22 which is deemed to include the corresponding civil action. The offended party shall, upon the filing of the criminal and civil actions, pay in full the filing fees based on the face value of the check as the actual damages. Purpose of Exception: to prevent the offended party from using the prosecutor’s office and the court as vehicles for recovery of the face value of the check, without paying the corresponding filing fees therefor. With respect to damages other than actual, if these damages are specified in the complaint or information, the corresponding filing fees should be paid, otherwise, the trial court will not acquire jurisdiction over such other damages. Where moral, exemplary and other damages are not specified in the complaint or information, the grant and amount thereof are left to the sound discretion of the trial court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment. In an appeal of a criminal case: The appellate court may impose additional damages or increase or decrease the amounts of damages upon the accused-appellant. However, additional penalties cannot be imposed upon a co-accused who did not appeal, but modifications of the judgment beneficial to him are considered in his favor. Section 2. When separate civil action is suspended. 2000 Amendment DURING THE PENDENCY OF THE CRIMINAL ACTION, THE PERIOD OF PRESCRIPTION OF THE CIVIL ACTION WHICH CANNOT BE INSTITUTED SEPARATELY OR WHOSE PROCEEDING HAS BEEN SUSPENDED SHALL NOT RUN. ______ EFFECT OF FILING OF CRIMINAL ACTION: EITHER 1) Suspension of civil action in whatever stage before final judgment, until final judgment in the criminal action 2) Consolidation with the criminal action upon application with the court trying the criminal action AND IF GRANTED: a. Evidence presented/admitted in civil action shall be deemed automatically reproduced in the criminal action, without prejudice to the admission of additional evidence; + right to cross examine b. Both the criminal and the civil actions shall be tried and decided jointly. *** The amendment refers to a civil action arising from a crime which is reserved or filed separately and subsequently a criminal case is filed if it has to be suspended to await final judgment in the criminal action. *** The period of prescription of the civil actions under Section 3 of this rule shall not be suspended because they can be instituted separately. This refers to civil actions arising from the offense charged which has not been reserved or civil actions that has been filed ahead of the criminal but has been suspended.

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Take Note: Article 29 of the Civil Code merely emphasizes that a civil action for damages is not precluded by the acquittal of an accused for the same criminal act or omission. It does not state that the remedy can be availed of only in a separate civil action. EFFECT OF ACQUITTAL BY THE ACCUSED: General Rule: Extinction of the penal action does not carry with it extinction of the civil action arising from the offense charged. Exception: Civil action is deemed extinguished if there is a finding in a final judgment that the fact from which the civil liability may arise did not exist. Section 3. When civil action may proceed independently. *** The institution of an independent civil action against the offender under Arts. 32, 33, 34 and 2176 of the Civil Code may proceed independently of the criminal case and at the same time without suspension of either proceedings. *** Independent Civil Action – require only a preponderance of evidence and may proceed simultaneously with the criminal action and offended party may be entitled in such eventuality only to the bigger award of the two assuming the awards made in the two cases vary. But not to recover twice. (Ace Haulers Corp. vs. CA Aug. 23, 2000) *** Prior reservation is not necessary to file separate civil action under Arts. 32, 33, 34 and 2176 of the Civil Code. The phrase “which has been reserved” that has caused conflicting rulings in the past has now been deleted. *** Actions based on quasi-delict may be filed independently of the criminal action regardless of the result of the criminal action, except that a plaintiff cannot recover damages twice for the same act or omission of the defendant. *** NO DOUBLE RECOVERY – The offended party cannot recover damages twice for the same act or omission charged in the criminal action.
*** Criminal actions to recover civil liability arising from delict and civil actions based on a quasi delict may proceed simultaneously BUT, would be entitled only to the bigger award of the two, assuming the awards made in the two cases vary *** The judgment in civil actions based on Article 32, 33, 34 and 2176 absolving the defendant from civil liability does not bar the criminal action

2000 Amendment Sec. 4. Effect of death on civil actions. – The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. (n) -----------------*** Under the amendment in Section 1, the independent civil action under Section 3 may be consolidated with the criminal action. Since However, the Revised Rules on Criminal Procedure limited the civil liability to what is deemed impliedly instituted with the criminal action to civil liability arising from the crime, there would have been no need for the amendment as death of the accused would only extinguish such civil liability. The rule was however retained by the Court to apply to the civil actions under Section 3 of the Rule. The rule would, however, apply only if any of the civil actions under

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Section 3 is consolidated with the criminal action, otherwise, since the actions under Section 3 are purely civil actions, the effects of death of a party are to be governed by the Rules on Civil Procedure. (Rule 3, Section 16, 17 and 20, 1997 RCP) After arraignment and during the pendency of the criminal action: GENERAL RULE: death extinguishes the civil liability arising from delict or the offense EXCEPT: where civil liability is predicated on other sources of obligations such as law, contract, quasicontract and quasi-delict. *** If such civil action which survives is impliedly instituted in the criminal action, the legal representative or heir of the deceased shall be substituted for the deceased. The criminal case is reduced to a civil action. *** However, if the civil action has been reserved and subsequently filed or such civil action has been instituted, when the accused died, then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Sec.16 Rule 3 of the Rules of Court. Before arraignment: *** The civil action impliedly instituted in the criminal action shall be dismissed without prejudice to the offended party’s filing a civil action against the administrator of the estate of the deceased. Pending appeal of his conviction: *** extinguishes his criminal liability as well as the civil liability based solely thereon. Prior to final judgment: *** terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed.
PEOPLE vs. BAYOTAS (G.R. No. 102007 September 2, 1994) Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. The claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict.

Sec. 5. Judgment in civil action not a bar *** The judgment in civil actions based on Arts. 32, 33, 34 and 2176 absolving the defendant from civil liability does not bar the criminal action. EFFECT OF JUDGMENT IN CIVIL ACTION GENERAL RULE: Judgment in civil action is not a bar to a criminal action for the same act or omission. EXCEPTION: where the judgment in the civil action is determinative whether how the criminal action may proceed (Prejudicial Question) and determinative of the guilt or innocence of the accused. 2000 Amendment Sec. 7. Elements of prejudicial question. - The two (2) essential elements of a prejudicial question are: (a) the PREVIOUSLY INSTITUTED CIVIL ACTION; xxx xxx xxx _______ *** That which arises in a case, the resolution of which is the logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal *** The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. ELEMENTS OF A PREJUDICIAL QUESTION: 1. The civil action must be instituted prior to the criminal action. 2. The civil action involves an issue similar or intimately related to the issue raised in the criminal action. 3. The resolution of such issue determines whether or not the criminal action may proceed. Petition for suspension on the ground of PREJUDICIAL QUESTION is filed with: 1. Prosecutor or court conducting the preliminary investigation 2. Court, before the prosecutor rests, if the criminal action has already been filed in court.

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*** If a petition to suspend is filed with the prosecutor’s office, and the same was denied, the petition to suspend may again be filed before the court.

*** This section limits a prejudicial question to a “previously instituted civil action” in order to minimize possible abuses by the subsequent filing of a civil action as an after thought for the purpose of suspending the criminal action. *** The suspension of the criminal case due to a prejudicial question is only a procedural matter, and is subject to a waiver by virtue of prior acts of the accused. *** There is no prejudicial question where one case is administrative and the other is civil.

RULE 112 PRELIMINARY INVESTIGATION
2000 Amendment Sec. 1. Preliminary investigation defined; when required. -- was broadened. EXCEPT AS PROVIDED IN SECTION 7 OF THIS RULE, A PRELIMINARY INVESTIGATION IS REQUIRED TO BE CONDUCTED BEFORE THE FILING OF A COMPLAINT OR INFORMATION FOR AN OFFENSE WHERE THE PENALTY PRESCRIBED BY LAW IS AT LEAST FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY WITHOUT REGARD TO THE FINE. -----------------Preliminary investigation is an inquiry or proceeding to determine whether there exists sufficient ground to engender a well-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. (Sec. 1, Rule 112) *** The present rule includes among offenses entitled to preliminary investigation those punishable by at least four (4) years, two (2) months and one (1) day, even if the same is cognizable by the MTC. *** The right to preliminary investigation is a personal right covered by statute and may be waived. Preliminary investigation is: 1) not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. 2) subject to the requirements of both substantive and procedural due process. *** The right of an accused to a preliminary investigation is not a constitutional but merely a statutory right. Nonetheless, it is a component part of due process in criminal justice and is a substantive right. 3) a personal right and may be waived expressly or by implication. *** Lack of PI is not a ground to quash or dismiss a complaint or information, nor does it affect the court’s jurisdiction. When there is no preliminary investigation, the accused must invoke it at the first opportunity and the court should hold in abeyance or suspend proceedings and remand the case to the office of the prosecutor for him to conduct PI.
*** Though preliminary investigation is not a constitutional right but only a statutory right, denial of the accused of that right, as required by law, will constitute denial of criminal due process. (Patanao vs. Enage 121 SCRA 228) *** The right to preliminary investigation is not a constitutional right but only statutory right so that when the law or rules does not provide for it, it cannot be invoked as a matter of right.

THE FOLLOWING CASES DO NOT REQUIRE PI: a) Instances where there is a warrantless arrest, in flagrante delicto provided an inquest proceedings was conducted (Sec. 7 Rule 112); b) Cases falling under the rules of summary procedure; c) Offenses involving penalty of not more than 4 years, 2 months 1 day

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*** Failure to object on the ground that there has been no preliminary investigation will be deemed to be a waiver of the accused’s right thereto and such objection cannot be raised for the first time on appeal. *** During preliminary investigation, searching questions and answers are ASKED. REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION: 1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground 2 Insist on a preliminary investigation 3. File a certiorari, if refused 4. Raise lack of preliminary investigation as error on appeal 5. File for prohibition *** The refusal of the court to remand the case for PI can be controlled by certiorari and prohibition to prevent
trial.

PURPOSE OF PRELIMINARY INVESTIGATION: To protect the accused from the inconvenience, expenses 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. It is also intended to protect the state from having to conduct useless and expensive trials. Section 2. Officers authorized to conduct preliminary investigation. Persons authorized to conduct a preliminary investigation: 1. Provincial or city fiscal and their assistants 2. Judges of the MTC and MCTC 3. National and regional state prosecutors 4. Such other officers as may be authorized by law such as: the COMELEC, Ombudsman and PCGG No longer authorized to conduct PI: 1) By implication, MTC judges in Manila and in chartered cities have not been granted the authority to conduct PI, as the officers authorized to do so are the prosecutors. 2) Judges of RTCs Two types of offenses may be filed in the MTC for preliminary investigation: 1) a case cognizable by the RTC may be filed with the MTC for PI; 2) even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least 4 years 2 months and 1 day. Regarding offenses falling within the original jurisdiction of the Sandiganbayan: *** Prosecutors or municipal trial court judges conducting PI of offenses falling within the original jurisdiction of the Sandiganbayan shall, after their conclusion, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. *** Moreover, the prosecutor or judge cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an information with the Sandiganbayan without being deputized by, and without prior written authority of, the Ombudsman or his deputy. REGARDING ELECTION OFFENSES: *** The exclusive jurisdiction of the Comelec to investigate and prosecute election offenses inheres even if the offender is a private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense, namely, an election offense as defined in the Omnibus Election Code and in other election laws, and not the personality of the offender that matters. REGARDING THE OMBUDSMAN: *** The power of the Ombudsman to make investigation extends to any illegal act or omission of any public official, whether or not the same is committed in relation to his office.

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*** Preliminary investigation by the Ombudsman is limited to cases cognizable by the Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman. *** Section 4(d) of Administrative Order No. 07 disallows the filing of a motion to quash or dismiss a complaint filed with the Ombudsman, except on the ground of lack of jurisdiction. Which remedy may an aggrieved party avail of against resolutions of the Ombudsman in criminal or non-administrative cases? The law is silent. Hence, appeal is not available as a remedy because the right to appeal is a statutory privilege and may be availed of only if there is a statute to that effect. However, an aggrieved party is not without remedy, as he can resort to the special civil action of certiorari under Rule 65. The Ombudsman does not have the power: 1) to prosecute before the Sandiganbayan any impeachable officers with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office because by constitutional mandate, they can only be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust 2) to prosecute public officers or employees who have committed election offenses. 3) to file an information for an offense cognizable by the regular courts. Effect of an incomplete PI: 1) does not warrant the quashal of the information 2) does not affect the court’s jurisdiction or the validity of the information. 2000 Amendment Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses, AS WELL AS OTHER SUPPORTING DOCUMENTS TO ESTABLISH PROBABLE CAUSE. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent, attaching to it a copy of the complaint and its supporting affidavits and documents. THE RESPONDENT SHALL HAVE THE RIGHT TO EXAMINE THE EVIDENCE SUBMITTED BY THE COMPLAINANT WHICH HE MAY NOT HAVE BEEN FURNISHED AND TO COPY THEM AT HIS EXPENSE. IF THE EVIDENCE IS VOLUMINOUS, THE COMPLAINANT MAY BE REQUIRED TO SPECIFY THOSE WHICH HE INTENDS TO PRESENT AGAINST THE RESPONDENT, AND THESE SHALL BE MADE AVAILABLE FOR EXAMINATION OR COPYING BY THE RESPONDENT AT HIS EXPENSE. OBJECTS AS EVIDENCE NEED NOT BE FURNISHED A PARTY BUT SHALL BE MADE AVAILABLE FOR EXAMINATION, COPYING, OR PHOTOGRAPHING AT THE EXPENSE OF THE REQUESTING PARTY. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses AND OTHER SUPPORTING DOCUMENTS RELIED UPON FOR HIS DEFENSE. The counter-affidavits shall be subscribed and sworn to and certified as prescribed in paragraph (a) of this section, with copies thereof furnished by him to the complainant. THE RESPONDENT SHALL NOT BE ALLOWED TO FILE A MOTION TO DISMISS IN LIEU OF A COUNTER-AFFIDAVIT. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

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(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. IT SHALL BE TERMINATED WITHIN FIVE (5) DAYS. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. ------------------------*** A motion to dismiss is now a prohibited pleading when the case is under preliminary investigation and requires that the respondent should submit counter-affidavits or other supporting documents relied upon by him for his defense. *** By reason of the abbreviated nature of PI, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. *** The accused or respondent in a criminal prosecution may avail himself of discovery remedies either during preliminary investigation or when the information has already been filed in court. *** The respondent is now required to submit counter-affidavits and other supporting documents relied upon by him for his defense. *** The respondent now has the right to examine the evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense.
EFFECT OF AN INCOMPLETE PI: 1) does not warrant the quashal of the information 2) does not affect the court’s jurisdiction or the validity of the information

2000 Amendment Sec. 4. Resolution of investigating prosecutor and its review. -- If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend dismissal of the complaint. Within five (5) days from his resolution, he shall forward the records of the case to the provincial or city prosecutor or chief state prosecutor, OR TO THE OMBUDSMAN OR HIS DEPUTY IN CASES OF OFFENSES COGNIZABLE BY THE SANDIGANBAYAN IN THE EXERCISE OF ITS ORIGINAL JURISDICTION. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or 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 OR HIS DEPUTY. Where 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 THE OMBUDSMAN OR HIS DEPUTY on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu propio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. --------------------

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*** The prosecutor is required to resolve the complaint based on the evidence presented by the complainant in the event that the respondent cannot be subpoenaed or the respondent, if subpoenaed, does not submit a counter-affidavit within the 10-day period. *** Under the amendment, whether the recommendation of the investigating officer is to file or dismiss the case, he shall, within 5 days from his resolution, forward the records of the case to the provincial or city prosecutor or chief state prosecutor or; for offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction to the Ombudsman or his deputy the latter shall take appropriate actions thereon within 10 days from receipt and shall immediately inform the parties of said action. *** This refers to a petition for review of the prosecutor’s resolution pending at either the Department of Justice or the Office of the President; provided that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing officer.
*** The determination of the probable cause which would merit the filing of the case is merely discretionary and could not be compelled by mandamus Remedy: appeal to the secretary of Justice

ROLE OF SECRETARY OF JUSTICE: *** The Secretary of Justice is not prevented from entertaining an appeal from the accused or from the offended party even after the information has been filed and the trial court has arraigned the accused. Section 4 of DOJ 223 should be construed as merely enjoining the Secretary of Justice to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once the complaint or information is filed in court. If the Secretary reverses the ruling of the prosecutor, the latter has to file the necessary motion to dismiss the complaint or information, the grant or denial of which is subject to the discretion of the trial court.
*** Once the information has already been filed in court, and the Secretary of Justice reversed the prosecutor’s finding of probable cause, the judge must make his own assessment of the evidence and not just rely on the conclusion of the prosecutor *** The court has authority to review the Secretary of Justice’s recommendation (on petition for review) and reject it if there is GAD *** If the accused allows himself to be arraigned without asking for a PI, he is deemed to have waived the right to such PI *** By reason of the abbreviated nature of PI, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal

*** It is the prosecutor who is given by law direction and control of all criminal actions. This function is executive, not judicial. Hence, when a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties. *** After having filed the information, the prosecutor is called upon to prosecute the case in court. It has been said that at this stage, unlike judges who are mandated to display cold neutrality in hearing cases, the prosecutors are not required to divest themselves of their personal convictions and refrain from exhibiting partiality. But while he may strike hard blows, he is not at liberty to strike foul ones. Effect of exclusion of other persons from the information: 1) If during the trial, evidence is shown that such persons should have been charged, the fact that they were not included in the information does not relieve them of criminal liability, and they can be subsequently prosecuted. 2) The accused who has been charged with the offense is not allowed to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime. 3) It does not vitiate the validity of the information. Neither is the same a ground for a motion to quash. Effect if the information is filed by someone not authorized by law: *** The court does not acquire jurisdiction. The accused’s failure to assert lack of authority on the part of the prosecutor in filing the information does not constitute a waiver thereof.

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Sec. 5. Resolution of investigating judge and its review Non-judicial function: *** When a municipal judge conducts PI, he performs a non-judicial function. Consequently, the findings of the investigating judge are subject to review by the provincial prosecutor whose findings in turn may also be reviewed by the Secretary of Justice in appropriate cases. *** The municipal judge conducting preliminary investigation has no authority to determine the character of the crime but only to determine whether or not the evidence presented supported prima facie the allegation of fact contained in the complaint. Distinction regarding procedure: INVESTIGATING FISCAL - forward resolution within 5 days thereof INVESTIGATING JUDGE - transmit resolution within 10 days after P.I. - resolution requires the certification of fiscal - there is no need for certification of judge but must state briefly the findings of facts and the law supporting his action - fiscal shall forward all the records of the case - judge shall transmit with the entire records of the case, includes, the warrant of arrest and affidavits and supporting evidence, undertaking or bail, order of release and cancellation of bail bond, if for the dismissal of the complaint - Action of Chief of State Prosecutor within 10 - Action of Chief of State Prosecutor within days from receipt of resolution 30 days from receipt of the records - Fiscal’s acts are primarily an executive act, - Judge acts as an agent of the executive subject to supervision of Chief State Pros. and not of one as member of the judiciary, and the finding of Chief State Pros. Will still prevail because PI is an executive function.

2000 Amendment Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty days from the filing of the complaint or information. (b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this

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Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a) _______ ISSUANCE OF COURT OF WARRANT OF ARREST 1) Issuance By RTC/MTC on cases which does not require Prelim. Invest., Warrant may be issued: a) Upon filing of information by fiscal within 10 days if there is probable cause or b) Upon filing of additional evidence instituting probable cause if doubtful, which must be within 30 days from filing of information. Exceptions: No WOA or instead of WOA, order of commitment: 1. Accused already arrested by virtue of WOA of MTC; 2. Warrantless arrest after an inquest for an offense cognizable by RTC; 3. Offense with a penalty of fine only (6 (c), R112) 2) Issuance By MTC – Cases which requires Prelim. Invest., Warrant may be issued: IF CONDUCTED BY THE FISCAL 1) Upon filing of information by fiscal within 10 days if there is probable cause by the court having jurisdiction over the case or 2) Upon filing of additional evidence justifying probable cause if doubtful, which must be within 30 days from filing of information. 3) During PI upon application by fiscal, after searching questions and answers in writing under oath + probable cause + necessity to place in immediate custody so as not to frustrate the end of justice; (Ortiz vs. Palaypayon 234 SCRA 391) IF CONDUCTED BY MTC JUDGE: 1) During PI, after searching questions and answers in writing under oath + probable cause + necessity to place in immediate custody so as not to frustrate the end of justice (Ortiz vs. Palaypayon 234 SCRA 391) 2) Upon approval of resolution of investigating MTC judge by Chief State prosecutor and filing of information; Exceptions: a. No necessity of issuing WOA, but he must issue summons; b. Cases in Summary procedure except for failure to appear; PROBABLE CAUSE: Sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him that there is probable cause for believing that the person whose arrest is sought committed the crime charged. It is not required to prove that the particular person has actually committed the crime. Effect of a finding of probable cause: - merely binds over the suspect to stand trial. It is not a pronouncement of guilt. *** The judge need not personally examine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to: 1. Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; 2. If on the basis thereof he finds no probable cause, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Invalid: A warrant issued by the judge solely on the basis of the report and recommendation of the investigating prosecutor, without personally determining the existence of probable cause by independently examining sufficient evidence submitted by the parties during the PI *** The amendment in subsection (b) regarding the issuance of warrants of arrest by the MTC contemplates two (2) distinct situations. Two types of offenses may be filed in the MTC for preliminary investigation:

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1. a case cognizable by the RTC may be filed with the MTC for preliminary investigation; 2. even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. In either situation, the MTC is authorized to issue a warrant of arrest if there is necessity of placing the respondent under immediate custody, in order not to frustrate the ends of justice, he shall issue a warrant of arrest. *** The investigating judge has no power to reduce or change the crime charged in order to justify the grant of bail to the accused. The power belongs to the prosecutor. *** After the conclusion of his PI, the judge has to transmit to the provincial prosecutor his resolution and entire records of the case, regardless of whether he finds a probable cause or sufficient ground to issue a warrant of arrest. Municipal judge may issue arrest warrant before conclusion of preliminary investigation if: 1) he finds that probable cause exists and 2) there is a necessity of placing respondent under immediate custody. Important: The rule is now that the investigating judge’s 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. Thus, even if the judge finds probable cause, he cannot, on such ground alone, issue a warrant of arrest. He must further find there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice. What the accused who believes that there is no probable cause to hold him for trial may do: 1) to file with the trial court a motion to dismiss on such ground or for the determination of probable cause. 2) If the warrant of arrest has been issued, the accused may file a motion to quash the arrest warrant or to recall the same on the ground of lack of probable cause. Where an information has already been filed in court, and the Secretary of Justice reversed the prosecutor’s finding of probable cause, what should the trial court do upon the prosecutor’s motion to dismiss? He must make his own assessment of the evidence and not just rely on the conclusion of the prosecutor, otherwise the court becomes a mere rubber stamp. REGARDING REINVESTIGATION: *** Once the complaint or information is filed in court, any motion for reinvestigation is addressed to the sound discretion of the court. *** While the trial court judge has the power to order the reinvestigation of the case by the prosecutor, he may not, before the prosecutor concluded the reinvestigation, recall said order, set the case for arraignment and trial, without gravely abusing his discretion. 2000 Amendment Sec. 7. When accused lawfully arrested without warrant. -- When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, THE COMPLAINT OR INFORMATION MAY BE FILED BY A PROSECUTOR WITHOUT NEED OF SUCH INVESTIGATION PROVIDED AN INQUEST HAS BEEN CONDUCTED IN ACCORDANCE WITH EXISTING RULES. IN THE ABSENCE OR UNAVAILABILITY OF AN INQUEST PROSECUTOR, THE COMPLAINT MAY BE FILED BY THE OFFENDED PARTY OR A PEACE OFFICER DIRECTLY WITH THE PROPER COURT ON THE BASIS OF THE AFFIDAVIT OF THE OFFENDED PARTY OR ARRESTING OFFICER OR PERSON. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, IN THE PRESENCE OF HIS COUNSEL. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, RA 7438) _________

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TWO SITUATIONS CONTEMPLATED UNDER THIS RULE: 1. When a person is lawfully arrested without a warrant for an offense requiring a preliminary investigation (sec. 1, Rule 112) and no complaint or information has yet been filed, he may ask for a preliminary investigation by signing a waiver of the provisions of Art. 125 of the RPC in the presence of his counsel. 2. When the complaint or information was filed without preliminary investigation, the accused may, within 5 days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. GENERAL RULE: No complaint or information shall be filed for an offense which is penalized by imprisonment of not less than 4 years, 2 months and 1 day without PI. EXCEPTION: when the accused has been lawfully arrested without warrant, in which case, an inquest must be conducted by an inquest prosecutor who will determine whether his arrest without warrant is lawful. The inquest prosecutor may order the release of the arrested person if he finds no sufficient ground to hold him without prejudice to conducting further investigation, or file complaint or information within the period specified in Art. 125 of the RPC. *** The request for preliminary investigation should be made before plea, otherwise the right to ask for a preliminary investigation shall be deemed WAIVED. 2000 Amendment Sec 8. Records. – (a) Records supporting the information or complaint. – AN INFORMATION OR COMPLAINT FILED IN COURT SHALL BE SUPPORTED BY THE AFFIDAVITS AND COUNTER-AFFIDAVITS OF THE PARTIES AND THEIR WITNESSES, TOGETHER WITH THE OTHER SUPPORTING EVIDENCE AND THE RESOLUTION ON THE CASE. (b) Records of preliminary investigation. –The record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence by the requesting party. (8a) ________ *** Records of the preliminary investigation shall not automatically form part of the records of the case. Courts are not compelled to take judicial notice thereof. It must be introduced as an evidence. GENERAL RULE: Record of preliminary investigation shall not form part of the record of the case whether conducted by a judge or a fiscal; EXCEPTION: on initiative of the court or that of any party, it may order the production of the record or any part thereof if 1) necessary in the resolution of the case or incident therein, 2) introduces a evidence by the party requesting. 2000 Amendment Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. – (a) If filed with the prosecutor. - If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in Section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. (b) If filed with the Municipal Trial Court. - If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in Section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause AFTER PERSONALLY EVALUATING THE EVIDENCE, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. HE MAY, HOWEVER, REQUIRE THE SUBMISSION OF ADDITIONAL EVIDENCE, WITHIN TEN (10) DAYS FROM NOTICE, TO DETERMINE FURTHER THE EXISTENCE OF PROBABLE CAUSE. IF THE JUDGE STILL FINDS NO PROBABLE CAUSE DESPITE THE ADDITIONAL EVIDENCE, HE SHALL, WITHIN TEN (10)

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DAYS FROM ITS SUBMISSION OR EXPIRATION OF SAID PERIOD, DISMISS THE CASE. WHEN HE FINDS PROBABLE CAUSE, HE SHALL ISSUE A WARRANT OF ARREST, OR A COMMITMENT ORDER IF THE ACCUSED HAD ALREADY BEEN ARRESTED, AND HOLD HIM FOR TRIAL. HOWEVER, IF THE JDUGE IS SATISFIED THAT THERE IS NO NECESSITY FOR PLACING THE ACCUSED UNDER CUSTODY, HE MAY ISSUE SUMMONS INSTEAD OF A WARRANT OF ARREST. (9a) ________ The respondent or accused is not entitled to preliminary investigation in the following cases: 1) cases governed by the Rules on Summary Procedure; 2) cases where the punishment does not exceed 4 years 2 months and 1 day. Procedure to be followed in cases which do not require preliminary investigation: 1. Evaluate the evidence presented 2. Conduct searching questions or answers 3. Require the submission of additional evidence *** For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where the accused fails to appear after being summoned.

RULE 113 ARREST
ARREST – the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1 Rule 113)
*** Application of actual force, manual touching of the body, physical restraint or formal declaration of arrest is not required. Arrest includes submission to the custody of the person making the arrest.

*** Mere “ INVITATION” by the police is considered an arrest MODES OF ARREST 1. arrest by virtue of a warrant 2. arrest without a warrant under statutorily provided exceptional circumstances Essential requisites of a valid warrant of arrest: 1. It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce 2. The warrant must particularly describe the person to be seized REQUISITE FOR A VALID WARRANT OF ARREST OR SEARCH AND SEIZURE: Arrest and Search and Seizure is legal and valid if a warrant of arrest has been issued under the following circumstances: 1) issued upon Probable cause; 2) Determined Personally by the judge; 3) after Examination under oath or affirmation of the complainant and the witnesses he may produce; and 4) Particularly describing the place to be searched and the persons or things to be seized; 5) in Connection with a specific Offense or crime;
*** Probable cause as to the issuance of warrant of arrest – is defined “as those consist of a reasonable ground of suspicion supported by circumstances that in themselves sufficient to warrant a cautious man in believing accused to be committing the offense or to be guilty of the offense.” *** This probable cause must not be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay

Determined personally by the judge; Who may Issue: GENERAL RULE: The provision is self-executing. The provision speaks of “judges” which mean judges of all levels. This power may not be limited mush less withdrawn by Congress. The power to determine is a function of the judge and such power lies in the judge alone (People vs. Inting 187 SCRA 788)

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EXCEPTION: BID Commissioner may issue warrant of arrest of an undesirable alien sought to be deported because it is not criminal in nature and the act of deportation is an act of the State and the BID is the agent of the State to carry out such act (Harvey vs. Santiago 162 SCRA 840) > only to implement final order of deportation *** This exception applies in admin. Bodies for purposes of carrying out a final finding of a violation of a law not for the sole purpose of investigation or prosecution. Findings of Probable Cause by Fiscal vs. Judge: GENERAL RULE: Trial court generally rely on the findings of the fiscal as another PI conducted by it would be time-wasting (People vs. Villanueva 110 SCRA 465) EXCEPTION: Determination of probable cause is not a ministerial function, findings of probable cause by the fiscal, through the judge may rely on them but it is not binding on the judge. It may require additional evidence (Placer vs. Villanueva 126 SCRA 463) DISTINCTION OF PROBABLE CAUSE BY FISCAL VS. JUDGE: BY FISCAL BY JUDGE Made by the prosecutor or by the MTC Made by the judge only judge Executive function and in case of Judicial Function conflict between views on reinvestigation, fiscal findings prevail (Crespo vs. Mogul) Purpose of determining whether there purpose of issuing a warrant of arrest or is a cause that would warrant the filing search warrant (Allado vs. Diokno 232 SCRA of 192) information against the accused
Two Kinds of General Warrant: John Doe Warrant – warrant of arrest issued without the name in blank such that it can be enforced against any person which is void. General warrant – search warrant issued without any particularly on the thing to be searched and seized which is void.

GENERAL RULE: General warrant or John Doe warrant is invalid: EXCEPTION: It is valid when there is something personal description that will enable the officer to identify the accused or the thing; That the person is occupying and in control of a certain building is valid; (People vs. Veloso 48 Phil. 169) Section 2. Arrest; how made. Modes of Effecting Arrest 1. By an actual restraint of the person to be arrested 2. By his submission to the custody of the person making the arrest Section 4. Execution of warrant. The judge issues a warrant of arrest in 2 instances: (1) Upon the filing of the information by the prosecutor. - In issuing this kind of warrant, the judge does not personally examine the complainant and the witnesses he may produce, but he merely evaluates personally the report and supporting documents and other evidence adduced during the preliminary investigation and submitted to him by the prosecutor, and if he finds probable cause on the basis thereof he issues the warrant for the arrest of the accused. (2) Upon application of a peace officer. - In this kind of warrant, the judge must personally examine the applicant and the witnesses he may produce, to find out whether there exists probable cause, otherwise the warrant issued is null and void. He must subject the complainant and the witnesses to searching questions. The reason for this is there is yet no evidence on record upon which he may determine the existence of probable cause.

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Personally means - it is sufficient that the judge personally determine the probable cause and he need not personally examine the complainant or its witness (Soliven vs. Makasiar 167 SCRA 393) MANNER OF EXAMINATION 1. the judge must examine the witness personally 2. the examination must be under oath 3. the examination must be reduced to writing in the form of searching questions and answers Warrant issued by MTC
FLORES vs. JUDGE (290 SCRA 568) It is not mandatory for a MTC, after finding probable cause after a preliminary examination, to issue a warrant of arrest. He may also do so only if there is a necessity for placing the accused under arrest so as not to frustrate the ends of justice. SAMUELDE vs. SALVANI, JR. (165 SCRA 736) If the Municipal Judge refuses to issue a warrant of arrest, and the Prosecutor believes that one should be issued, he should file the information with the trial court for the latter to determine the propriety of the issuance of warrant of arrest. WEBB vs. JUDGE (247 SCRA 652) Before issuing a warrant of arrest, the judge merely determines personally the probability not the certainty of guilt of an accused. The judge merely reviews the initial determination of the prosecutor and finds out if the same is buttressed by substantial evidence. The sufficiency of the review cannot be measured by merely counting the minutes and hours.

Warrant of Arrest by RTC
LIM et al. vs. FELIX (G.R. No. 94054 February 19, 1991) The RTC may likewise issue a warrant of arrest after the filing of the information in court. However, the judge need not first conduct a searching inquiry of the offended party and his witnesses before issuing one. The judge cannot rely solely on the certification of the investigating prosecutor in the information. However, it is enough if the judge will base his determination of probable cause for the issuance of a warrant of arrest on the resolution of the prosecutor and necessary documents attached to the information such as affidavits and transcripts of stenographic notes taken during the preliminary investigation. There is no time limit for the judge to ascertain probable cause. However, the judge may require the complainant and his witnesses to appear before the court to ascertain probable cause. The Supreme Court declared null and void the warrant of arrest issued by respondent judge because the time he issued the warrant, the records were not yet with him but were in Masbate. CRESPO vs. MOGUL (151 SCRA 462) Where, after questioning of the complainant and/or any of his witnesses, still, the court is not satisfied with the presence of probable cause, the court may order the dismissal of the case.

Section 3. Duty of arresting officer. – It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. *** The head of the office to whom the warrant has been delivered for execution shall cause the warrant to be executed within 10 days from receipt thereof. (Sec. 4.) *** Within ten days after the expiration of such period, the officer to whom it was assigned for execution, shall make a report to the judge who issued the warrant and, in case of his failure to execute, shall state the reasons thereof. (Sec. 4.) *** A warrant of arrest does not become stale or functus officio unlike a search warrant which is valid only for 10 days. A warrant of arrest remains valid until arrest is effected or the warrant lifted. *** The rule as amended no longer requires a return of the warrant of arrest but a report. 2000 Amendment Sec. 5. Arrest without warrant; when lawful. – xxx xxx xxx (b)WHEN AN OFFENSE HAS JUST BEEN COMMITTED AND HE HAS PROBABLE CAUSE TO BELIEVE BASED ON PERSONAL KNOWLEDGE OF FACTS OR CIRCUMSTANCES THAT THE PERSON TO BE ARRESTED HAS COMMITTED IT; xxx xxx xxx ___________

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WARRANTLESS ARRESTS: 1. The person to be arrested has committed, is actually committing, or is attempting to commit an offense. 2. The peace officer has probable cause to believe based on personal knowledge of facts or circumstances indicating that the person to be arrested has committed a crime. 3. The person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. *** The present rule removed the requirement that an offense must have in fact been committed and clarified that probable cause to be based on personal knowledge of “facts and circumstances” that the person to be arrested has committed it would be sufficient to justify a warrantless arrest for an offense that has just been committed. *** The indubitable existence of a crime is not necessary to justify a warrantless arrest and that “personal knowledge of facts” in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion.
“Probable Cause” means any actual belief or reasonable grounds of suspicion and “Reasonable Grounds Of Suspicion” must be founded on probable cause plus good faith on the officer that he is probable that the person committed based on actual facts i.e. circumstances sufficiently strong in themselves to create probable cause.

*** The ground of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. *** The reasonable suspicion therefore must be founded on probable cause, coupled “with good faith on the part of the peace officers making the arrest.” *** The only difference is that in in flagrante arrests, the facts constituting probable cause occur in the presence of the arresting person, while in hot pursuit, knowledge of the facts occurred after the commission of the crime. *** Sec. 5(b) authorizes warrantless arrest “when an offense has in fact just been committed.” The word “just” implies immediacy in point of time.
*** When a police officer sees the offense although at a distance or hears the disturbances created thereby and proceeds at once to the scene and effect the arrest, such is valid. (People vs. Sucro 195 SCRA 401)

In a citizen’s arrest, the person may be arrested and searched of his body and of his personal effects or belongings, for dangerous weapons or anything which may be used as proof of the commission of an offense, without need of a search warrant. *** Delivery of the detained person to the proper judicial authorities means the filing of the complaint or information with the municipal trial court or with the inquest fiscal or prosecutor who shall then decide either to order the release of the detained person or to file the corresponding information in court.
*** Application to admit bail not a bar from challenging the validity of arrest, legality of warrant issued or irregularity or absence of Prelim. Inv. If raised before plea and tried before tiral. - Voluntary submission in the jurisdiction of the court by entering of plea of not guilty and participated in the trial. PEOPLE vs. MALMSTEDT (198 SCRA 401) To justify arrest, in one’s presence, it is not the actuality of the commission of the offense in one’s presence but the knowledge of its commission at the time of the arrest that is decisive. Transporting prohibited drugs is a continuing offense

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UMIL vs. RAMOS (187 SCRA 1) In continuing crimes, like rebellion or conspiracy to commit rebellion, it is not necessary in order to effect a warrantless arrest that the overt acts constituting a crime be actually committed in the presence of the arresting officer.

OTHER ALLOWED WARRANTLESS ARRESTS
*** The assailed search and seizure may still be justified as akin to “stop and frisk” situation whose object is either to determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain more information. *** Public officers may seize contraband which are open to the eye and the hand, and the peace officer comes upon them inadvertently.

Section 6. Time of making arrest. *** Unlike a search warrant which must be served only in daytime, an arrest may be made on any day and at any time of the day or night, even on a Sunday. This is justified by the necessity of preserving the public peace. Sec. 7. Method of arrest by officer by virtue of warrant MANNER OF ARREST – An arrest is made in the following manner: As to the Police: WITH WARRANT a) Made on any day or night b) Inform the accused of the cause of arrest and that a warrant has been issued therefore; Exceptions: 1. when he flees or forcibly resist before the officer has opportunity so to inform him or 2. when the giving of information will imperil the arrest 3. In case of warrantless arrest by an officer or private person – when accused is engaged in the commission of an offense or is pursued immediately after its commission or after an escape, c) showing of the warrant (optional) but officer need not have it in his possession at the time of arrest but after, and if the accused so requires, the warrant shall be shown to him as soon as practicable. d) No violence or unnecessary force shall be used in making arrest and the accused shall not be subject to any greater restraint than is necessary for his detention. e) Officer arresting may orally summon assistance from as many persons as he deems necessary to aid him in making arrest unless he can render such aid without detriment to himself. f) The officer has the right to break into building or enclosure in which the person to be arrested is or is reasonably believed to be, if he is refused to admittance thereto, after he has announced his authority and purpose known “Knock and Announce Rule” and when necessary for the purpose of liberating himself. *** Arrest require no actual force, manual touching of body, physical restraint or a formal declaration. It is enough that there is intent to arrest in the part of the police and intent to submit himself, on the part of the accused under the belief and impression that submission is necessary. MANNER OF ARREST - WITHOUT A WARRANT - POLICE OFFICER  inform person to be arrested 1. authority 2. cause of arrest UNLESS 1. engaged in the commission 2. pursued immediately after the commission 3. has escaped, flees or forcibly resists before officer has opportunity to inform him 4. when the giving of such information will imperil the arrest - PRIVATE PERSON  inform the person to be arrested 1. intention to arrest 2. cause of the arrest UNLESS  same as 1 to 4 above

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*** The arresting officer may be held civilly liable for damages under Art. 32 of the Civil Code. The very nature of Art. 32 is that the wrong may be civil or criminal. It is not necessary that there should be malice or bad faith. On Civil Procedure: Section 20 Rule 14 of the 1997 Rules of Civil Procedure provides in part that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Section 8 Rule 15 provides that subject to the provisions of Section 1 Rule 9, a motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. *** These changes in the 1997 Rules of Civil Procedure are applicable to criminal cases as Section 3 Rule 1 thereof provides that “these rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings.” Moreover, the omnibus motion rule applies to motions to quash. *** Section 26 of Rule 114 of the New Rules of Criminal Procedure provides that bail is not a bar to objection on illegal arrest, lack of or irregular preliminary investigation. This is an abandonment of the Cojuangco, Jr. v. Sandiganbayan ruling. Section 11. Right of officer to break into building or enclosure. Requisites before an officer can break into a building or enclosure to make an arrest: 1. That the person to be arrested is or is reasonably believed to be in said building; 2. That he has announced his authority and purpose for entering therein; 3. That he has requested and been denied admittance. Section 12. Right to break out of the building or enclosure to effect release. *** As an officer making an arrest may break into a building when refused entry, he may also break out therefrom (if locked in) for the purpose of liberating himself. *** A private person making an arrest cannot break in or out of a building or enclosure because only officers are allowed by law to do so. Section 13. Arrest after escape or rescue. *** Where a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the country. The pursuit must be immediate.

CUSTODIAL INVESTIGATION
CUSTODIAL INVESTIGATION, defined – means “any questioning initiated by law enforcement officers after a person who has been taken into custody or otherwise deprived of is freedom of action in any significant way.” (Miranda vs. Arizona)
START: The Miranda rights “begins to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime, and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements.” (People vs. de la Cruz GR No. 118866-68 September 17, 1997)

Embraced in custodial investigation: 1) invited for questioning 2) re-enactment Not embraced in custodial investigation: 1) police line-up 2) ultraviolet ray examination 3) normal audit examination by the COA of the accountability of a public officer

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PEOPLE vs. OLIVAREZ, JR. (299 SCRA 634) Mere invitation is covered by the constitutional prohibition on warrantless arrest because it is intended for no other reason than to conduct an investigation. RA 7438 – custodial investigation includes the practice of issuing invitation to a person who is investigated in connection with an offense he is suspected to have committed without prejudice to the liability of the inviting officer for any violation of law.

*** When the threat or promise was made by, or in the presence of, a person in authority, who has, OR is supposed by the accused to have power or authority to fulfill the threat or promise, the confession of the accused is inadmissible. Presumption of regularity in the performance of duties: *** Does not apply during in-custody investigation, nor can it prevail over the constitutional right of the accused to be presumed innocent. COMPONENTS OF MIRANDA RIGHTS: 1. RIGHT TO BE INFORMED: *** Inform within the meaning of the provision is not enough that the police merely inform of hisconstitutional right to remain silent and to counsel, and then taking statements down, the interrogating officer must have patience in explaining these rights to him (People vs. Ramos 122 SCRA 312) *** To inform contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle (People vs. Nicandro 141 SCRA 289) *** reading the accused’s constitutional right is simply not enough, the prosecution must show that the accused understood what he read and that he understood the consequences of his waiver (People vs. Canela 208 SCRA 842) *** right to be informed carries with it the correlative obligation on the part of the investigator to explain and contemplates effective communication, which results in the understanding what is conveyed. (People vs. Austin 240 SCRA 541) *** The degree of explanation may vary because the police must take into account the educational backgroud, regional origin, dialectic and other personal circumstances of the accused in informing the accused; *** The police must ask patiently whether the accused understand what he have said. A long question, followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights (People vs. Galit 135 SCRA 465) *** Confessions written in advance by the police for persons of limited intelligence or educational attainment have been outlawed and also those signed by person whose sanity is dubious, where intelligence is not only limited but impaired (People vs. Capitin 165 SCRA 45) 2) THE RIGHT TO REMAIN SILENT: a guarantee against self-incrimination 3) RIGHT TO COMPETENT AND INDEPENDENT COUNSEL: it is intended to preclude the slightest coercion as would lead the accused to admit something false (People vs. Enanoria 209 SCRA 577) Rights to Counsel Starts: GENERAL RULE: Right to Counsel attaches upon the start of an investigation and police asks questions to elicit information, confessions or admissions from the accused (Gamboa vs. Cruz 162 SCRA 642 cited in People vs. Macam 238 SCRA 306) and it continues in all stages of the investigation until the proceeding is terminated (People vs. Layuso 175 SCRA 47) Rationale: It is intended to help the accused at the critical stages of prosecution even before trial where it might reduce the trial as a mere formality (People vs. Espanola GR No. 119308 April 18, 1997)

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EXCEPTION: 1. Not applicable where accused is brought to the police station for identification (People vs. Buntan 221 SCRA 421) 2. Neither applicable during the police line-up since it is not part of the custodial in-quest (People vs. Dimaano 209 SCRA 819) 3. Nor in the conduct of paraffin test (People vs. Lamsing 248 SCRA 471) Critical Stage of the Criminal proceedings is the 1) Custodial Investigation, Police line-up and 2) Pre-trial Proceedings where the right to assistance of counsel is indispensably needed where the result of the two might reduce the trial as a mere formality (People vs. Espanola GR No. 119308 April 18, 1997) Independent Counsel cannot be a : a) special counsel; b) public private prosecutor; c) counsel of the police or d) municipal attorney whose interest is admittedly adverse to the accused; e) legal officer of the municipality may not defend an accused as it would result to conflict of interest (People vs. Bandula 232 SCRA 565) f) even a counsel who assisted the accused who was found out that he applied and have been admitted for employment in NBI, a law enforcement agency cannot be considered an independent counsel (People vs. Januario 267 SCRA 608) Preferably of his Own Choice: it does not convey that the choice of lawyer is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise, the tempo of the C.I. is in the sole hands of the accused, nay, obstruct the interrogation by simply selecting the lawyer who is not available (People vs. Barasina 229 SCRA 450) *** Where counsel arrived late and was not present during the actual investigation but only present when the accused will sign the confession is considered to be not a counsel of his choice (People vs. Lucero 244 SCRA 425) 4) Rights may be waived except in writing and in the presence of a counsel Waiver of Rights – Rights that may be waived: > the right to remain silent and counsel may be waived but not the right to be informed of this rights; *** Confession made by the accused of his guilt before the mayor, as a confidant not as a law enforcer, and was repeated in the presence of the media free from undue influence is an spontaneous statement is considered a valid waiver (People vs. Andan GR No. 116437 March 3, 1997) *** Burden of Proof of valid waiver is on the prosecution because the presumption of regular performance of duties cannot prevail over presumption of innocence (People vs. Jara 144 SCRA 516, People vs. Taruc 157 SCRA 178) OTHER RIGHTS: 1) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. *** Swearing officers should have the confessant physically examined by independent doctors before administering the oath, to discourage attempts to secure confessions through violence (People vs. Barros) *** On the strength of medical evidence of the defendant’s manhandling by the police authorities, their confessions were rejected (People vs. Cabrera 134 SCRA 362) *** Any allegation of force, undue influence torture etc. must be proved by the defense with clear and convincing evidence (People vs. Eglipa 174 SCRA 1 People vs. Basay 219 SCRA 404)

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2) Any confession or admission obtained in the violation of this or Section 17 hereof shall be inadmissible in evidence against him. EXCLUSIONARY RULE: Doctrine of fruit of the Poisonous Tree. “once the primary source (the tree) is shown to have been unlawfully obtained, any secondary derivative evidence (the fruit) derived from it is also inadmissible.” *** Before any confession as evidence is admitted by the court, there must be first strict compliance with the constitutional rights of the accused because a confession of guilt constitutes a formidable evidence against the accused, on the principle that no one will freely and knowingly and voluntarily admit it unless prompted by truth and conscience particularly when the facts could only have been known to the accused (People vs Fabro GR No. 95089 August 11, 1997) *** The provision does not distinguish verbal or nonverbal confessions is uncounseled, it is inadmissible as evidence (People vs. Bonola GR No. 116394 June 19, 1997) *** Spontaneous statements made to confidant who is the mayor and repeated it to the media is admissible (People vs. Andan) 3) The law shall provide for 1) penal and 2) civil sanctions for violations of this section as well as 3) compensation to and 4) rehabilitation of victim of torture or similar practices, and their families. RA 7309, victims of unjust imprisonment, arbitrary or illegal detention or of violent crimes may file claims for damages with the Board of Claims under DOJ; - unjust imprisonment arbitrary or illegal detention is compensable for P1,000 each month of imprisonment but not to exceed P10,000 - hospitalization, medical treatment, loss of wage, support or other expenses directly related to the injury whichever is lower - without prejudice to the right to seek other remedies under existing law

RULE 114 BAIL
BAIL -- the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions specified by the rule. (Sec. 1, Rule 114) Purpose: 1) to honor the presumption of innocence until his guilt is proven beyond reasonable doubt 2) to enable him to prepare his defense without being subject to punishment prior to conviction. Forms of bail: 1. corporate surety 2. property bond 3. cash deposit 4. recognizance *** Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal. *** As bail is intended to obtain or secure one’s provisional liberty, the same cannot be posted before custody over him has been acquired by the court. Rationale: it discourages and prevents resort to the pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements thereof.
General Rule: only those person who is in custody may apply to admit bail Exception: A prosecution witness may be required to post bail to ensure their appearance when (1) there is substitution of information (2) when the court believes that a material witness will not appear in the trial.

2000 Amendment Sec. 2. Conditions of the bail; requirements. –

xxx

xxx

xxx

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The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions herein required. Photographs (passport size) TAKEN WITHIN THE LAST SIX (6) MONTHS showing the face, left and right profiles of the accused must be attached thereto. CONDITIONS OF BAIL: (a) The undertaking shall be effective upon approval, and, unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the RTC, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper courts whenever so required by the court or these Rules; (c) The failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; (d) The bondsman shall surrender the accused to court for execution of the final judgment. The surety’s liability covers all these 3 stages: 1) trial 2) promulgation 3) the execution of the sentence. *** Unless the court directs otherwise, the bail bond posted by an accused remains in force at all stages of the case until its final determination. *** If the accused presents his notice of appeal, the trial court will order the accused to be taken into custody in the absence of a new bail bond on appeal duly approved by the court. *** If the accused does not appeal, the bondsman must produce the accused on the 15th day from promulgation of sentence for service of sentence. Section 3. No release or transfer except on court order or bail. *** The right to bail accrues when a person is arrested or deprived of liberty (in custody), and must be exercised before final conviction. *** Bail is either a matter of right or a matter of discretion. It is a matter of right (absolute) when the offense charged is punishable by any penalty lower than reclusion perpetua. Otherwise, the court has discretion to grant it. *** The right to bail (as a matter of right) may not be denied even where the accused has previously escaped detention, or by reason of his prior absconding. *** The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However, where the grant of bail is discretionary, the prosecution may show proof to deny the bail. Sec. 4. Bail, as a matter of right; exception When bail is a matter of right: 1) before or after conviction by the MTC 2) before conviction, for all offenses punishable by lower than reclusion perpetua *** prosecution does not have the right to oppose or to present evidence for its denial. When bail is a matter of discretion: 1) before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment 2) after conviction by the RTC of a non-capital offense *** prosecution is entitled to present evidence for its denial. *** Right to bail may be waived. Bail in court-martial offenses: *** The right to bail of an accused military personnel triable by courts-martial does not exist, as an exception to the general rule that an accused is entitled to bail except in a capital offense where the evidence of guilt is strong.

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Rationale: The unique structure of the military justifies exempting military men from the constitutional coverage on the right to bail. TEN COMMANDMENTS FOR A JUDGE ON APPLICATION FOR BAIL 1. Do not grant bail unless the accused is in legal custody 2. Do not act on an application for bail or set it for hearing unless you have jurisdiction over the person of the accused and of the case. 3. Do not grant bail in non-bailable offenses without application and notice to the prosecutor and in bailable offenses without notice to or recommendation of prosecutor. 4. Do not grant bail in non-bailable offenses without a hearing (Even if the investigating judge had granted bail or the prosecutor in filing the Information had recommended bail.) 5. Do not grant bail in non-bailable offenses without giving prosecution full opportunity to present its evidence. 6. Do not grant bail in non-bailable offenses simply because of the prosecution’s non-appearance. 7. Do not grant bail on appeal after the accused have convicted of a non-bailable offense or from a non-bailable offense to a bailable offense. This should be addressed to the appellate court. 8. Do not grant bail when the penalty imposed by the Regional Trial Court exceeds six (6) years but not more than twenty (20) years where any of the circumstances mentioned in Section 5, Rule 114 are present. 9. Do not grant bail after the judgment has become final unless the accused has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the probation law. 10. Do not grant bail after the accused had commenced to serve sentence. Notice of hearing required: *** Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant’s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. Summary of the evidence for the prosecution *** The court’s order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judge’s evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. *** It would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed.
REYES vs. MONTESA (247 SCRA 85) The court is not authorized to take cognizance of and to resolve the petition for bail of the accused unless the court had taken or acquired jurisdiction over their persons either through effective service of warrant of arrest or their voluntary surrender. PADERANGA vs. COURT OF APPEALS (247 SCRA 741) As bail is intended to obtain or secure one’s provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. It would be incongruous to grant bail to one who is free.

2000 Amendment Sec. 5. Bail, when discretionary. – THE APPLICATION FOR BAIL MAY BE FILED AND ACTED UPON BY THE TRIAL COURT DESPITE THE FILING OF A NOTICE OF APPEAL, PROVIDED IT HAS NOT TRANSMITTED THE ORIGINAL RECORD TO THE APPELLATE COURT. HOWEVER, IF THE DECISION OF THE TRIAL COURT CONVICTING THE ACCUSED CHANGED THE NATURE OF THE OFFENSE FROM NON-BAILABLE TO BAILABLE, THE APPLICATION FOR BAIL CAN ONLY BE FILED WITH AND RESOLVED BY THE APPELLATE COURT. AVAILABILITY OF BAIL TO AN ACCUSED MAY BE SUMMARIZED AS FOLLOWS: 1. Regardless of stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong.

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2. Before and after conviction by the MTC, bail is a matter of right. (Sec.4) 3. Before conviction by the RTC whether in the exercise of its original or appellate jurisdiction, bail is a matter of right. (Sec.4) 4. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary.
*** An accused who has been convicted of an offense which carries a penalty of more than 20 years is not entitled to bail during the pendency of his appeal. *** An accused who is convicted of a capital offense is no longer entitled to bail on appeal since his conviction imports that the evidence of guilt is strong.

5. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not more than 20 years is imposed, and not one of the circumstances below is present and proved, bail is a matter of discretion. (Sec.5) - Recidivism, quasi-recidivism or habitual delinquency or commission of crime aggravated by the circumstances of reiteration. - Previous escape from legal confinement, evasion of sentence or violation of the conditions of bail without valid justification. - Commission of the offense while on probation, parole or under conditional pardon - Circumstance of the accused or his case indicate the probability of flight if released on bail - Undue risk of commission of another crime by the accused during pendency of appeal. 6. After conviction by the RTC imposing a penalty of imprisonment exceeding 6 years but not more than 20 years and any of the circumstance enumerated above and other similar circumstance is present and proved, no bail shall be granted. 7. After judgment has become final unless accused applied for probation before commencing to serve sentence of penalty and offense within purview of probation law. (Sec. 24)
*** Illness of the accused which require hospitalization does not affect the denial of bail if the evidence of guilt is strong (De la Rama vs. Peoples Court 77 Phil 461) *** Right to bail is available even if the privilege of writ of habeas corpus is suspended under the 1987 Constitution; HARVEY vs. DEFENSOR-SANTIAGO (162 SCRA 840) In deportation proceedings, the right to bail is not a matter of right but discretionary on the part of the Commissioner of Immigration.

Trial court may grant bail before appeal is perfected *** Whether bail is a matter of right or discretion, the trial court may grant bail and approve the amount of the bail bond before the accused has perfected his appeal, appeal being perfected upon filing of a written notice of appeal and furnishing the adverse party copy thereof. *** However if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. *** Even if there is no notice of appeal, if the decision of the TC convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.
OBOSA vs. COURT OF APPEALS (266 SCRA 281) Where the accused was originally charged of murder but was convicted only for homicide but decides to appeal to the Court of Appeals, the matter of the accused being allowed bail should be left to the discretion of the appellate court. The same principle applies where the conviction takes place before the RTC.

After appeal is perfected, the trial court loses jurisdiction to grant bail and to approve bail bond. However, the accused may apply for bail or provisional liberty with the appellate court.
COMELEC vs. COURT OF APPEALS (229 SCRA 501) Where the accused was improvidently granted bail, the offended party may file a “Petition for Certiorari” from the said order. He has sufficient personality to impugn the order.

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Sec. 6. Capital offense defined CAPITAL OFFENSE – one which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. *** The capital nature of an offense is determined by the penalty prescribed by law, and not by the penalty that may be imposed after trial and on the basis of the evidence adduced and the presence of aggravating or mitigating circumstance. Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable *** Distinction between life imprisonment and reclusion perpetua, insofar as bail is concerned, is not important. Why? because in both cases, the grant of bail before conviction by the trial court is a matter of discretion when evidence of guilt is strong. *** The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt is strong. Meaning of “conviction” The word “conviction” in Section 13, Article III of the 1987 Constitution refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court. Section 8. Burden of proof in bail application. *** Showing that evidence of guilt is strong, the burden of proof is upon the prosecution at the hearing for the application for bail by the person in custody for the commission of an offense punishable by death, reclusion perpetua or imprisonment. *** “Evidence of guilt” in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances. Regarding minors charged with a capital offense: *** If the person charged with a capital offense, such as murder, admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. - The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death. Duty of judge to conduct hearing:
HEARING OF THE APPLICATION: Nature and Purpose: 1. To satisfy due process because the State is also entitled to be heard; 2. Summary in nature or held in the course of trial but not a mere sham or pretense but one that focuses on quantity and character of proof in anticipation of that to be presented in the trial (Ocampo vs. Bernabe 77 Phil 55) 3. Separate hearing is not indispensable (Gerardo vs. CFI 86 Phil 504) 4. It is mandatory – it is the duty of the court, even if the prosecution refuses to adduce evidence as to the probable guilt of the accused or fails to interpose an objection to the motion for bail, it is still “mandatory” for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt, or lack of it, against the accused (Baylon vs. Judge Sison 243 SCRA 284) 5. In the hearing, the prosecution is afforded to adduce evidence on the guilt of the accused relevant to the factual issue with the accused counsel having the right to cross-examine and to introduce his evidence in rebuttal. Without the hearing, the judge could not possibly assess the weigh of the evidence against the accused before granting bail (Basco vs. Judge Repatalo AM No RTJ-96-1335 March 5, 1997)

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6. Bail is not proper in non-bailable offense even if the prosecution did not appear in the hearing (Paderanga vs. CA 247 SCRA 741) 7. Prosecution must be given full opportunity to present its evidence in hearing the application to admit bail (Mamolo Sr. vs. Narisma 252 SCRA 613) 8. Burden of proof in bail application for the commission of an offense punishable by reclusion perpetua or death IS ON THE THE PROSECUTION that evidence of guilt is strong – It is the duty of the judge to determine if evidence of guilt is strong for purpose of deciding whether bail may be granted or not (Carpio vs. Judge Maglalang 196 SCRA 41) 9. Evidence presented during the bail hearings considered automatically reproduced on the trial, but the court may recall any witness for additional examination upon motion of either party, unless the witness is dead or outside of its jurisdiction.

*** Where the prosecution agrees with the accused’s application for bail or foregoes the introduction of evidence, the court must nonetheless set the application for hearing. *** As distinguished from the records of the preliminary investigation, the evidence presented during the bail hearings shall be considered automatically reproduced at the trial. Sec. 9. Amount of bail ; Guidelines.
Fixing of the amount of bail with the following guide:

1) No bond shall be approved unless the surety is qualified.
2) Amount of bail shall be based on the following guidelines: a. Financial Ability of the accused; b. Nature/circumstances of offense; c. Penalty of the Offense charged; d. Character/reputation of the accused; e. Age and health of the accused; f. Weight of evidence against the accused; g. Probability of appearance in trial; h. Forfeiture of other bonds; i. The fact that accused was a Fugitive from justice when arrest and; j. Pendency of other cases in which the accused is under bond. 3) Excessive bail shall not be required – P1,195,200.00 was required for bail by the judge pending trial of multiple murder and multiple murder and multiple frustrated murder is an excessive bail for he did not have funds for the same (De la Camara vs. Enage 41 SCRA 3) *** The term of the bail bond is NOT dependent upon faithful payment of bond premium

Section 10. Corporate Surety. Law governing corporate surety bail bond. Act No. 536, Section 1 provides that no head of department, court, judge, officer, board or body executive, legislative or judicial shall approve or accept any corporation as surety on any recognizance, stipulation, bond, contract or undertaking a) unless such corporation has been authorized to do business in the Philippine Islands in the manner provided by the provisions of this of this Act, nor b) unless such corporation has by contract with the Government of the Philippines Islands been authorized to become a surety upon official recognizance, stipulations, bonds and undertakings. *** The term of the bail bond is not dependent upon faithful payment of the bond premium. Section 11. Property bond, how posted. Property bail bond It is a lien on the real property given as security for the amount of the bail and it is annotated on the original Torrens title in the Office of the Register of Deeds if the land is registered, or if unregistered, in the Registration Book, in the Office of the Register of Deeds for the province or city where the land lies and on the corresponding tax declaration in the office of the provincial and municipal assessor concerned. Non-annotation is sufficient cause for the cancellation of the bond. Sec. 13. Justification of sureties Before accepting a surety or bail bond, the following requisites must be complied with: 1) photographs of the accused; 2) affidavit of justification; 3) clearance from the Supreme Court;

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4) certificate of compliance with Circular No. 66 dated September 19, 1996; 5) authority of the agent; and 6) current certificate of authority issued by the Insurance Commissioner with a financial statement showing the maximum underwriting capacity of the surety company. Sec. 14. Deposit of cash as bail *** The trial judge has no authority to strictly require that only cash bond, instead of a surety bond, be deposited for the provisional release of the accused. Section 15. Recognizance Recognizance - an obligation of record, entered into before some court or officer authorized to take it with a condition to do some particular act and the accused is often allowed to obligate himself to answer the charge. *** The release of the accused may be on his own recognizance, which means that he has become his own jailer. It may be to a responsible person. Persons charged with offenses falling under the Rule on Summary Procedure may be released either “on bail or on recognizance of a responsible citizen acceptable to the court.” *** In Espiritu v. Jovellanos (280 SCRA 579, 1997), the Court held that the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: *** when the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or P2000 fine, under the circumstances provided in RA No. 6036 *** where a 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, in which case the court, in its discretion, may allow his release on his own recognizance *** where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one *** in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD No. 603 as amended. Section 16. Bail when not required; reduced bail on recognizance. Instances wherein the accused may be released on recognizance, without putting bail or on reduced bail: CAN BE RELEASED WITHOUT BAIL 1. Offense charged is violation of an ordinance, light felony or a criminal offense, the imposable penalty wherefore does not exceed 6 months of imprisonment and/or fine of P 2,000 under R.A.6036. 2. Where the accused has applied for probation and before the same has been resolved but no bail was filed or the accused is incapable of filing one, in which case he may be released on recognizance 3. In case of a youthful offender held for physical or mental examination, trial or appeal, if unable to furnish bail and under the circumstances under PD 603, as amended ON REDUCED BAIL OR ON HIS OWN 1. A person in custody for a period equal to or RECOGNIZANCE more than the minimum of the principal penalty prescribed for the offense charged, without application of the indeterminate sentence law or any modifying circumstance shall be released on reduced bail or on his own recognizance.

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UNDER THE REVISED RULES ON SUMMARY PROCEDURE

GENERAL RULE: no bail EXCEPTION: 1. When a warrant of arrest is issued for failure to appear hen required by the court 2. When the accused - is a recidivist; - is a fugitive from justice; - is charged with physical injuries - does not reside in the place where the violation of the law or ordinance is committed; or -has not reside in the place where the violation of the law or ordinance is committed; or -has no known residence

2000 Amendment Sec. 17. Bail, where filed. – was amended in that Bail in the amount fixed may be filed with ANY REGIONAL TRIAL JUDGE, METROPOLITAN TRIAL JUDGE, MUNICIPAL TRIAL JUDGE, OR MUNICIPAL CIRCUIT TRIAL JUDGE IN THE PROVINCE, CITY, OR MUNICIPALITY. _________ FILING OF APPLICATION TO ADMIT BAIL – Where will you file your Application to Admit Bail? 1) Case Not Yet Filed – WITH ANY COURT IN THE PLACE WHERE HE IS BEING HELD. 2) Case Already Filed and Bail is a Matter of Right – a. WITH THE COURT WHERE THE COURT IS PENDING or in its absence or unavailability, with any MTC/RTC judge within the province or city; OR b. WITH ANY RTC OF THE PLACE WHERE HE IS BEING HELD or if no judge thereof is available, with any MTC judge therein. 3) Case on Appeal – Upon filing of notice of appeal, application may be filed and acted upon by: a. TRIAL COURT – where the original record of trial has not yet transmitted to appellate court; b. APPELLATE COURT – where decision of trial court is conviction changing the nature of offense from non-bailable to bailable offense OR conviction of non-bailable offense (People vs. Nitcha 240 SCRA 283) *** Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge of the same court, within the province or city. This was amended to include any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. *** A judge presiding in one branch has no power to grant bail to an accused who is being tried in another branch presided by another judge who is not absent or unavailable, and his act of releasing him on bail constitutes ignorance of law which subjects him to disciplinary sanction.
ADAPON vs. DOMAGTOY (265 SCRA 824) If the accused is arrested in a municipality other than the municipality where the case is filed, he may post bail before the RTC of the province where he is arrested and if there is no RTC judge available, before the MTC judge of the place where he is arrested.

Sec. 18. Notice of application to prosecutor
Notice of Application to fiscal and/ or require him to submit his recommendation – Reasonable notice of hearing is required to be given to the prosecutor or his recommendation in fixing the amount of bail taking into account several factors, such as the applicant’s character. (Cortes vs. Judge Catral AM No. RTJ-97-1387 September 10, 1997)

Sec. 19. Release on bail *** The court’s order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise it may be invalidated

Approval of bail and Release from Custody –

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1) If filed in the court where the case is pending – accused must be discharged upon approval of the bail by the judge; 2) If filed in court other than where the case is pending – the judge accepting bail shall forward the bail, the order of release and other supporting papers to the court where the case is pending, which may, for good reason, require a different one; * An application for or admission to bail shall not bar the accused from: - challenging the validity of his arrest; - challenging validity of warrant of arrest; - assailing the regularity of PI; - questioning the absence of PI > which must be brought before the plea of accused. *** Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal - the surety’s liability covers all these 3 stages: 1. trial 2. promulgation 3. execution of the sentence Section 20. Increase or reduction of bail. *** After accused had been admitted to bail, the court may, upon good cause shown, either increase or decrease the amount and if increased, the accused may be committed unless he gives bail for additional amount. *** An accused who is released without bail upon filing of the complaint or information may at any subsequent stage of the proceedings whenever a strong showing of guilt appears to the court be required to give bail or be committed.
*** Mere probability of escape does not warrant denial of the right to bail, the remedy is to increase the bail as long as it is not excessive. But after conviction and there is risk of absconding, bail may be denied. (Zafra vs. City Warden 97 SCRA 771)

2000 Amendment Sec. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date AND TIME. _________ When bail bond forfeited: *** only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required.
Forfeiture of bail bond – judgment rendered against the bondsmen, JOINTLY AND SEVERALLY, for the amount of the bond, and the court shall not reduce or otherwise mitigate the liability of the bondsmen, except when the accused has been surrendered or is acquitted.

* Requisites: 1) Non-appearance of accused where his presence is specifically required by court, or these Rules, 2) Notice of bondsmen to produce him before the court on a given date and time. 3) Period of 30 days to bondsmen within which to produce their principal and to comply with 2 undertakings: a. must produce the body of their principal or give the reason for his non-production; and b. must explain satisfactorily why the accused did not appear before the court when first required to do so. 4) Failure to comply with the 2 undertaking Order of forfeiture vs. order of confiscation:

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1. an order of forfeiture is conditional and interlocutory, there being something more to be done such as the production of the accused within 30 days as provided by the rules an order of forfeiture is not appealable 2. an order of confiscation is not independent of the order of forfeiture. It is a judgment ultimately determining the liability of the surety thereunder, and therefore final and execution may issue at once. *** The present amendment now requires that the time be also specified, aside from the date. To justify exemption from liability on a bail bond or reduction thereof, two requisites must be satisfied: 1) production or surrender of the person of the accused within 30 days from notice of the order of the court to produce the body of the accused or giving reasons for its non-production 2) satisfactory explanations for the non-appearance of the accused when first required by the trial court to appear. *** Compliance with the first requisite without meeting the second requisite will not justify non-forfeiture of a bail bond or reduction of liability. Section 22. Cancellation of bailbond.
Cancellation of bail bond – without prejudice to any liability on the bond. A) Upon application with due notice to fiscal: 1. Surrender of the accused or 2. Death of the accused, upon proof thereof; B) Automatic Cancellation 1. Acquittal of the accused or 2. Dismissal of the case or 3. Execution of the final judgment of conviction 4. Non-annotation of property bond in RD.

Instances when bail bond can be cancelled: 1. upon application by the bondsman with notice to the fiscal and upon surrender of the accused 2. upon proof that the accused died *** The bail bond is automatically cancelled upon the acquittal of the accused or dismissal of the case, without prejudice to any liability on the bond Methods by which sureties may relieve themselves from responsibilities a. arrest the principal and deliver him to the proper authorities b. they may cause his arrest to be made by any police officer or other person of suitable age or discretion c. by endorsing the authority to arrest upon a certified copy of the undertaking and delivering it to such officer or person Section 23. Arrest of accused out on bail. *** The bondsmen who put the bail bond for the accused become the jailers and they or the police officer to whom authority is endorsed may arrest the accused for the purpose of surrendering him to the court. The accused cannot leave the country without the permission of the bondsmen and the court. *** An accused released on bail may be re-arrested without a warrant if he attempts to depart from the Philippines without prior permission of the court where the case is pending. Regarding hold-departure orders: Supreme Court Circular No. 39-97 dated June 19, 1997 limits the authority to issue hold departure orders to the RTCs in criminal cases within their exclusive jurisdiction. Consequently, MTC judges have no authority to issue hold-departure orders, following the maxim, express mention implies the exclusion. Neither does he have authority to cancel one which he issued.
Principle of Hold Departure

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1) Hold departure order is an inherent power of the court to maintain and preserve the effectiveness of its jurisdiction over the case and person of the accused; 2) By posting bail, the accused holds himself to all the processes of the court, thus he may legally be prohibited to travel out of the country Judicial Precedents: *** permission to leave the country should be filed in the same court where the case is pending because they are in the best position to judge the propriety and implication of the same (Defensor-Santiago vs. Vasquez 217 SCRA 633) *** Right to travel on humanitarian reason is a matter addressed to the discretion of the court (Marcos vs. Sandiganbayan GR No. 115132 August 9, 1995)

Sec. 24. No bail after final judgment; exception GENERAL RULE: no bail shall be allowed after the judgment has become final, as what is left is for him to serve the sentence. EXCEPTION: when he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation Law. EXCEPTION TO THE EXCEPTION: the accused shall not be allowed to be released on bail after he has commenced to serve his sentence. 2000 Amendment Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. (n) *** This is an entirely new provision and is intended to modify previous rulings of the court that an application for bail by the accused shall be considered as a waiver of his right to challenge the legality of his arrest or the absence of a preliminary investigation. (Callanta vs, Villanueva, 77 SCRA 373)

RULE 115 RIGHTS OF THE ACCUSED
ELEMENTS OF CRIMINAL DUE PROCESS: 1) Accused must have been heard in a court of competent jurisdiction; 2) Accused is proceeded against under the orderly processes of law; 3) He has been given notice and opportunity to be heard; 4) The judgment rendered was within the authority of a constitutional law (Meija vs/ Pamaran 160 SCRA 457) RIGHTS OF THE ACCUSED: A) TO BE PRESUMED INNOCENT GENERAL RULE: An accused is presumed innocent unless proven the contrary > It is the burden of the prosecution to establish the guilt of the accused beyond reasonable doubt otherwise he is entitled to acquittal; > Conviction will not depend on the weakness of the evidence of the defense but on the strength of the evidence of the prosecution. EXCEPTION: It may be overcome by contrary presumptions as long as there is some rational connection between the fact proved and the ultimate fact presumed, and the interference of one fact from the proof of another shall not be so unreasonable as to be arbitrarily mandate: 1) Unexplained flight of the accused; 2) Failure to explain the possession of the stolen property (U.S vs. Espia 16 Phil 506) 3) Failure to account funds and property of a public officer entrusted to him.

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Is the constitutional presumption of innocence violated by the presumption of guilt established by law arising from certain facts proved and by shifting to the accused the burden of proof to show his innocence? No. The state having the right to declare what acts are criminal, within certain defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt. The constitutional presumption of innocence will not apply as long as there is some rational connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrary. Presumption of Innocence vs. Presumption Regularity of Performance: - The presumption of irregularity of the performance of official functions cannot by itself affect the constitutional presumption of innocence of an accused when the prosecution’s evidence is weak. (People vs. Mirantes 209 SCRA 179) EQUIPOISE RULE: *** If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction of the accused. Hence, where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused and he must be acquitted.
AFFIDAVIT OF DESISTANCE – valid basis for dismissal of criminal case  The affidavit must be a recantation of a prior statement or testimony categorically renouncing the said statement or testimony and withdrawing it formally and publicly  There must be denial of the truth of the complaint absolving the accused

B) TO BE INFORMED OF THE NATURE AND THE CAUSE OF THE ACCUSATION AGAINST HIM. Means of Informing Accused of the Charge: 1) Preliminary investigation 2) Requirement of sufficient allegations in information 3) Arraignment 4) Bill of particulars 5) Rules against Duplicity of Offense. Requisites of Informing the Nature and Cause of Offense: (Rule 110 Section 8) 1) State the designation given to the offense by the statute; 2) Statement of the acts or omissions constituting the offense by the statute; 3) Stated in ordinary and concise language without repetition 4) Sufficient to enable the person of common understanding to know what offense is intended to be charged and enable the court to pronounce the proper judgment. *** An arraignment thus becomes indispensable as the means for bringing the accused into court and notifying him of the cause he is required to meet.
*** It is in arraignment where the right against double jeopardy start to attach.

*** When a person is charged in a complaint with a crime and the evidence does not show that he is guilty thereof, but does show that he is guilty of some other crime or a lesser offense, the court may sentence him for the lesser offense, provided the lesser offense is a cognate offense and is included in the complaint with the court. Description not designation of the offense is controlling. In case of error in the designation, accused may be validly convicted on the description. *** In capital offenses, when there is a discrepancy between the designation of the crime in the preamble to the information and the facts pleaded in the body, the court should call the attention of the accused, so that he may be fully apprised of the nature and cause of the accusation against him.
*** An accused absolved of rape could not be convicted of qualified seduction not included in the information, for the reason that the two crimes have different elements that should be alleged. (People vs. Quintal 125 SCRA 734)

“VOID-FOR-VAGUENESS RULE” - where a statute itself is couched in indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished, hence, should be avoided.

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Right to be informed of the Offense Presupposes Publication in view of Criminal Due Process – due process is also denied when a person is impleaded for violation of law, administrative regulation or municipal ordinance not previously published as he would not know what acts he must do or avoid to prevent prosecution. C) TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STAGE OF THE PROCEEDING Right to be heard by Himself – it is indispensable in any criminal prosecution where the stakes are liberty or life of an accused who must be given the chance to defend himself as well as to present evidence on his behalf.
> But the right to present evidence is not the monopoly of the defense, for the state is entitled to due process as much as the accused. Thus, taking a deposition which would merely cumulative as a superfluous exercise, the court may not permit it (People vs. Webb GR 132577 August 17, 1999)

The presence of the accused is not required at every stage of the trial but ONLY: 1. During arraignment (Sec. 1b, rule 116) 2. Promulgation of judgment except when the conviction is for a light offense, in which case, it may be pronounced in the presence of his counsel or a representative 3. When ordered by the court for purposes of identification *** The law securing to an accused person the right to be present at every stage of the proceedings has no application to the proceedings before the Court of Appeals and the Supreme Court nor to the entry and promulgation of their judgments The defendant need not be present in court during the hearing of the appeal. (Sec. 9 Rule 124) TRIAL IN ABSENTIA: Purpose of trial in absentia → to speed up the disposition of criminal cases, trial of which could in the past be indefinitely deferred and many time completely abandoned because of the defendant’s escape. Conditions for trial in absentia to apply: 1. accused has been arraigned 2. he has been duly notified of the trial 3. his failure to appear is unjustified
*** an accused have the right to a trial and to be present thereat. It is personal right which may be waived provided that he has been duly notified and his failure to appear is unjustified. (Aquino vs. Military Commission No. 2, 63 SCRA 546)

*** An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testifies against him. (Gimenez vs. Nazareno) or to appeal unless he voluntarily submits to the jurisdiction of the court or is otherwise arrested within 15 days from notice of judgment against him. (People vs. Mapalao). ESCAPE OF THE ACCUSED, EFFECT. 1) On notice, is deemed to have waived the notice because he escaped and the inability of the court to notify him for subsequent hearings will not prevent it from continuing with the trial. 2) On justification of failure to appear – his escape also makes his failure unjustified because he has placed himself beyond the pale, and protection, of the law (Pp. vs Salas 143 SCRA 163) 3) On his right to appeal – losses standing in court, including the right to appeal his conviction. (People vs. Mapalao 197 SCRA 79) WAIVER OF PRESENCE IN TRIAL: 1) Express of implied waiver not to attend except in identification where he is required to attend; 2) Violation of conditions of bail; 3) Absence of accused without any justifiable cause at the trial on a particular date despite notice; 4) Accused Escapes after notice of trial is deemed waiver of right to be present on said date and on all subsequent trial dates until custody is regained. 5) Accused Left the country without permission of the court.

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Requisites for valid waiver of right: 1) existence of right 2) knowledge of existence thereof 3) intention to relinquish such right, which must be shown clearly and convincingly 4) where the law or the Constitution so provides, the waiver must be with the assistance of counsel, to be valid. D) RIGHT TO COUNSEL.
Right to be heard by and with assistance of Counsel – it is indispensable because of the following reasons: a) Accused will be confronted by skilled and experienced prosecutor b) Intricacies of courtroom procedure not within the knowledge of ordinary layman

GENERAL RULE: Right to Counsel during Trial is Absolute in criminal proceeding, the accused is entitled to a lawyer because there is a great danger in not having one in a trial because of her inadequate and legal. EXCEPTION: but such option cannot be used to sanction reprehensible 1) dilatory tactics, 2) to trifle the Rules of Court, or 3) to prejudice equally important rights of the State and the offended party to speedy and inadequate justice (People vs. Serzo GR No. 118435 June 20, 1997)
*** Right to a lawyer is not indispensable to due process unless required by law or the Constitution (Nera vs. Auditor General 164 SCRA 1)

WAIVER OF RIGHT TO COUNSEL: GENERAL RULE: the right to counsel in a trial court cannot be waived during the trial (Flores vs. Ruiz 90 SCRA 428)
Rationale: It is because even the most intelligent or educated man have no skill in the science of law, particularly in the rules of procedure, and without counsel, “he may be convicted, not because he is guilty but because he does not know how to establish his innocence” (People vs. Holgado 86 Phil 752)

EXCEPTION: Administrative Proceedings involving purely administrative or civil matters. EXCEPTION TO THE EXCEPTION: Administrative Proceedings involving penalty of imprisonment. *** The duty of the court to appoint a counsel de oficio when the accused has no legal counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment (Sec. 6 Rule 116) *** If the judgment of conviction had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by counsel, where he has been denied the right to counsel during the hearing. *** Where an accused was represented in the RTC by a person who claimed to be a lawyer and was thereafter convicted, but it was later discovered that his counsel was not really a lawyer, he is entitled to have his conviction set aside and a new trial undertaken. E) TO TESTIFY AS WITNESS IN HIS OWN BEHALF. *** If he should testify on his own behalf, he may be cross-examined as to any matter stated in his direct examination. F) RIGHT AGAINST SELF-INCRIMINATION. Scope: As long as the question will tend to incriminate, the witness is entitled to the privilege. In all other cases, he may not refuse to answer provided: 1) Question is relevant and otherwise allowed even if it may embarrass him or subject him to civil liability; 2) Question of his past criminality where the crime already prescribe, or he has been convicted or acquitted; 3) Question of the his previous grant of immunity; Where: This right is available not only in criminal but also in government proceedings, civil and administrative proceedings where there is a penal sanction involved (Pascual vs. Board of Examiners 28 SCRA 345) and legislative inquiry.

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Who: It may be claimed not only by the accused but also by any witness to whom an incriminating question is addressed. *** The right against self-incrimination is not self-executing or automatically operational. It must be asserted. SCOPE COVERED BY THE RIGHT: GENERAL RULE: The right is against testimonial compulsion only: 1) Physical examination of the accused to determine his involvement in the crime is valid. > The prohibition is in the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material (Holt vs. US 218 US 245) 2) Examination of the rapist and the victim for gonorrhea is valid (US vs. Ten Teng 23 Phil 145) 3) Examination of a woman for pregnancy charged with adultery is valid (Villaflor vs. Summers 41 Phil 62) 4) Undergo ultraviolet for examination of the presence of fluorescent powder dusted on marked money used by buy-bust (Peolple vs. Tranca 35 SCRA 455) EXCEPTION: 1) Production of documents and other personal records and chattels 2) Furnishing of specimen of signature in a falsification of document case, because writing is not purely a mechanical act, because it applies the application of intelligence and attention.( Beltran vs. Samson, 53 Phil. 570) EXCEPTION TO THE EXCEPTION: a) Where the State have the right to inspect the same in the exercise of its police power or taxing power; b) Where the subpoena decus tecum is directed against a government officials required to produce the records or documents;
*** It is a protection against testimonial compulsion and extends to any evidence “communicative in nature” acquired under duress such as forced reenactment. The accused here is not acting in spontaneity for it requires him to exhibit some physical characteristic which would make him admit criminal responsibility against their will. (Pp. vs. Olvis, 154 SCRA 513) *** Inference of Guilt may not be drawn against an accused for his failure to make a statement of any sort. (People vs. Arciaga 99 SCRA 1) *** A detention prisoner cannot testify without permission of the court in which his case is pending.

Right of the accused against self-incrimination vs. right of that of an ordinary witness *** The ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. Waiver of Right Against Self-Incrimination: it may be waived either directly or failure to invoke it provided: 1) it is certain; 2) unequivocal; 3) intelligently made. Transactional and Use immunity distinguished: *** Transactional immunity is broader in the scope of its application. By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. *** In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.

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Case: Beltran vs. Samson(53 Phil 570) ( Waiver Against Self-Incrimination) Held: The Supreme Court held that where, in a prosecution for falsification, the accused took that stand and testified denying his authorship of the alleged falsified signature, on cross-examination he can be compelled to give a sample of his handwriting and it was not a denial of his right against self-incrimination. Case: Bermudez vs. Castillo, 64 Phil 483 (Non-Waiver of Right Against Self-Incrimination) Held: The Supreme Court ruled that in a disbarment case, the complainant on cross-examination denied authorship of certain handwritten letters, she should not be compelled to give samples of her handwriting as it would amount to a denial of her right against self-incrimination in a possible charge of perjury. Note: In Reconciling the conflicting decision In the Beltran case, it was accused himself who opened the issue on his direct examination. As an accused, he could have even refused to testify at all without any unfavorable presumption being drawn against him. Since he chose to be a witness and went to the extent of testifying on the matter of handwriting, he thereby waived the right against self-incrimination on the issue, hence, he could then be cross-examined thereon just like any other witness. In the Bermudez case, the testimony was given by the complainant who, unlike an accused person, could not refuse to testify without an unfavorable inference being drawn against her, and furthermore, when she testified, she did not open the issue with respect to the letters in her direct examination as the issue thereon was raised during the cross-examination, hence, she did not waive the privilege against self-incrimination of her own volition or by acts imputable to her.

G) RIGHT TO CONFRONT AND CROSS EXAMINE THE WITNESSES AGAINST HIM AT TRIAL. *** The accused’s right to meet the witnesses face to face is limited to proceedings before the trial court, during trial, and not during custodial or preliminary investigation.
*** CROSS-EXAMINATION is an indispensable element of criminal trial to give substance to the constitutional right of confrontation of the witness against him and to show that the presumption of the innocence has remained steadfast and firm. (People vs. Fido 200 SCRA 45) Purpose: 1) Intended to prevent conviction by ex parte affidavits or deposition and to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination (People vs. Ramos 122 SCRA 312 and Combate vs. San Jose 135 SCRA 693) 2) Less propensity to lie in the presence of accused than at his back; 3) In order for the judge to observe his demeanor and gauge his credibility.

*** Either party may utilize as part of its evidence the testimony of a witness who died, out of or cannot with due diligence be found in the country, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having had the opportunity to cross-examine him. GENERAL RULE: without the witness, deposition become hearsay EXCEPTION: dying declaration and other confrontation does not necessarily mean physical face-toface confrontation by the parties in court but merely means, the right to be given an opportunity to cross-examine which may be done through counsel (Marcos vs. Garchitorena GR No. 90110-43 February 22, 1990) Rule on Several Trial of Several Accused: where several accused have separate trial, evidence given against them at the other trial where they had no opportunity to cross-examine the witness is inadmissible (Talino vs. Sandiganbayan GR No. 75511-14 March 16, 1987)
*** Failure to present as witness the poseur-buyer in a buy-bust operation of marijuana does not violate the right to confrontation because what is required is the proof of the consummation of the sale transaction (People vs. Lacbanes GR No. 88684 March 20, 1997) *** Prosecution witness dies before his cross examination can be completed, his direct testimony cannot be stricken off the record provided that the material points have been covered in the cross (People vs. Seneres 99 SCRA 92)

H) RIGHT TO COMPULSORY PROCESSES GENERAL RULE: accused is entitled to the issuance of subpoena duces tecum to compel the production of object or documentary evidence and subpoena duces ad testificandum to compel the attendance of witness for testimony. Failure to obey subpoena would result to contempt of court; EXCEPTION: 1) where witness is sick who presented a bona fide medical certifcate;

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2) where witness reside more than 100 kilometers from place of trial and no means to attend the same; (People vs. Montejo) > Viatory right not available in criminal proceedings 3) where witness is a detention prisoner and no permission of the court in which his case is pending was obtained. 4) Similar circumstances exist which would prevent him or make him unavailability too attend the trial. When: Right to compulsory process must be invoked during the trial, otherwise deemed waived. *** Requests by a party for the issuance of subpoenas do not require notice to other parties to the action. I) RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL. > “justice delayed is justice denied” Speedy Trial means one that can be had as soon as after indictment is filed as the prosecution can, with reasonable diligence, to prepare for trial. While the accused have rights, aggrieved party have also the rights (People vs. Ginez 197 SCRA 481) Rule on Speedy Trial as laid down in Conde vs. Rivera: 1) Where prosecution, Without good cause; 2) Secures Postponements of the trial of a defendant 3) Against his protest; 4) Beyond a reasonable period of time; 5) Accused is Entitled to Relief by mandamus to compel dismissal, by habeas corpus to obtain his freedom even dismissal of the case. To whom: this right is available to all citizens including the military (Abadia vs. CA 236 SCRA 676)
*** However, speed is not the chief objective of the trial, but the careful and deliberate consideration in the administration of justice, genuine respect for all the rights of the parties and the requirements of procedural law and the discretion of the court so that the ends of justice and fairness would be served thereby. (Amberti vs. CA 89 SCRA 240) *** Right to speedy trial begins from filing of information but it cannot be quantified to specified number of days but must be examined in the light of surrounding circumstances (Martin vs. Ver 123 SCRA 745) *** No mathematical computation as to number of postponements is needed to gauge violation of right to speedy trial, as long as the postponements are unjustified which prolong trial for an unreasonable length of time. Two postponed trial is not violative. (People vs. Tampol 244 SCRA 202)

Test of Speedy Trial: laid down in Hipolito vs. CA, 230 SCRA 191 1) Length of delay; 2) Reason for delay; 3) The accused assertion or non-assertion of his right What Constitute Violation of Speedy Trial: trial must be free from 1) Vexatious, capricious and oppressive delays or 2) Unjustified postponement of the trial are asked for and secured, or 3) Without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried (de la Rosa vs. CA, 253 SCRA 499) Remedies available to the accused when his right to a speedy trial is violated: 1. He should ask not for the dismissal but for the trial of the case 2. Unreasonable delay of the trial of a criminal case as to make the detention of defendant illegal gives ground for habeas corpus as a remedy for obtaining release so as to avoid detention for a reasonable period of time 3. Accused would be entitled to relief in a mandamus proceeding to compel the dismissal of the information
IMPARTIAL- accused is entitled to cold neutrality of an impartial judge. *** Judge must not only be impartial but must also appear impartial

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*** Interference and pressure of the President in the mock trial for the assassination of Ninoy Aquino was violative of due process and prevented a fair and impartial (Galman vs. Sandiganbayan, 144 SCRA 43) *** A judge should not only render a just correct and impartial decision but should do so in such a manner as to be free from impartiality and as to his integrity. He must act in such a manner that the parties have confidence of his impartiality and give circumspection to ones case even though its evidence is not sufficient (State Prosecutor vs. Munro 236 SCRA 505) Mistrial may be declared if the proceedings was held under such circumstances as would prevent the accused from freely making his defense or the judge from freely arriving at his decision. Bias – The judge should not participate in the examination of the witness as to create an impression that he is allied with the prosecution. He must not be impartial but also appear as impartial to give the assurance to the parties that his decision will be just. (People vs. Opida 142 SCRA 295) *** But, to disqualify judge on the ground of bias and prejudice, the movant must prove such bias by clear and convincing evidence (Webb vs. People GR No. 127262 July 24, 1997) Questions of Judge: The participation of judge in direct or cross-examination is not an irreversible error as long as it is confined to clarificatory questions. *** There is UNDUE INTERFERENCE by the judge, if he propounds questions to the witness which will have the effect of or will tend to build or bolster the case for one of the parties.

PUBLIC TRIAL - The court may upon its own motion exclude the public from the courtroom if the evidence to be produced during the trial is of such a character as to be offensive to decency or public moral. The court may also, upon motion of the accused, exclude the public from trial except court personnel and the counsel for the parties (Sec. 13 Rule 119) *** Public trial should not be confused with trial by publicity which is proscribed.
*** To warrant a finding that PERVASIVE and PREJUDICIAL PUBLICITY deprived the accused of his right to a fair trial, there must be allegation and proof that the judge has been duly influenced GENERAL RULE: People have the right to attend the trial not only because of their interest but also to see if whether or not the constitutional rights of the accused are being observed. EXCEPTION: Court may exclude the public in the trial like in rape trials where the purpose is to pander their morbid curiosity which most likely inhibit testimony and embarrass some of the parties.

J) RIGHT TO APPEAL ON ALL CASES ALLOWED BY LAW AND IN THE MANNER PRESCRIBED BY LAW.
*** Appeal & Due Process is not a natural right nor is it part of the due process (Tropical Homes, Inc. vs. NHA 152 SCRA 540) It is not essential right which may be denied by the legislature as long as hearing is conducted except the appellate jurisdiction of the SC which Congress cannot be deprived. But if there is a statutory grant of appeal, denial of the same is violation of due process. *** When the accused is acquitted of the charge, the prosecution cannot appeal therefrom without violating the right to double jeopardy. Only the accused can appeal.

GENERAL RULE: Right to appeal by the accused may be waived either expressly or impliedly (People vs. Ang Gioc 73 Phil 336) EXCEPTION: When the accused is convicted of capital offense (death), automatic review or appeal to SC even if he did not appeal.

RULE 116 ARRAIGNMENT AND PLEA
REMEDIES BEFORE ARRAIGNMENT AND PLEA:
1) Motion to Quash – either for dismissal of the case or amendment; 2) Motion for Bill of Particulars – to enable accused to properly to plead and to prepare for trial and must specify the alleged defects and the details desired.

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3) Motion for Production or inspection of material evidence in possession of prosecution – on motion of accused showing good cause and with notice to all, in order to prevent surprise, suppression, or alteration; 4) Motion for Suspension of Arraignment a. Unsound mental condition of accused which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. b. Existence of a valid Pre-judicial question. c. Petition for review of resolution of fiscal pending either in DOJ or OP provided that it shall not exceed 60 days from filing of petition; 5) Motion before plea for the following matters: a. Challenging the validity of his arrest; b. Challenging validity of warrant of arrest; c. Assailing the regularity of PI; d. Questioning the absence of PI.

2000 Amendment Sec. 1. Arraignment and plea; how made. – xxx xxx xxx (d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (n) (e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment. (n) (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (Circ. 1-89) (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. (Sec. 2, Circ. 38-98) _________ Arraignment - consists of reading the information to the accused and asking him, in open court whether or not he is guilty of what is alleged against him *** Arraignment is the stage where the issues are joined in criminal action and without which the proceedings cannot advance further or, if held, will otherwise be void. *** The accused must personally enter his plea though he be charged with a light offense only. *** Both arraignment and plea shall be made of record, but a failure to enter of record shall not affect the validity of the proceedings. *** An arraignment on the amended complaint/ information is mandatory, the petitioner having the constitutional right to be informed of the charge against him. Unless he had already been arraigned and the amendment is only as to form in which case there is no need to retake his plea. (Teehankee, Jr. vs. Madayag). *** The rule that the accused may be sentenced for as many offenses as are charged in the information shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offense with respect to which he was not properly arraigned. *** The accused is not entitled to know in advance the names of all prosecution witnesses. > Prosecution may call witnesses other than those named in the information. PLEA - the matter which the accused on his arraignment, alleges in answer to the charge against him. *** There can be no double jeopardy where the accused has not yet pleaded to the offense.

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*** A mere written manifestation is not a valid plea. For jeopardy to attach, it is necessary that the defendant has been arraigned and has pleaded to the charge because it is from that moment that the issues are deemed joined. Purpose of Plea → to make an issue. Without an issue, there is nothing to be tried and nothing on which the judgment and sentence of a court can be properly predicated PRE-ARRAIGNMENT – the court must do the following:
1) Inform the accused of his right to counsel and asking him if he desires to have one unless he is allowed to defend himself in person, or he has employed counsel of his choice. IF NO COUNSEL 2) Assignment of a counsel de officio to defend him considering the gravity of offense and the difficulty of questions that may arise: Counsel de Officio: a. Members of the bar in good standing with experience and ability adequate to defend the accused; b. Any resident person of the province and of good repute for probity and ability to defend the accused in case of localities where such members of the bar are not available 3) Give REASONABLE TIME for counsel de officio to prepare for arraignment with accused as to his plea before proceeding with the arraignment.

ARRAIGNMENT PROPER:
AS TO THE COURT: a) IN OPEN COURT where the complainant or information has been filed or assigned for trial; b) BEFORE THE JUDGE or clerk of court; c) FURNISHING THE ACCUSED A COPY OF THE COMPLAINANT or information with the list of witnesses; d) READING THE SAME IN THE LANGUAGE OR DIALECT KNOWN TO HIM; e) ASKING HIM WHETHER HE PLEADS guilty or not guilty; f) BOTH ARRAIGNMENT AND PLEA SHALL BE MADE OF RECORD, but a failure to enter of record shall not affect the validity of the proceedings.

AS TO THE ACCUSED: Presence of accused and personal entry of plea which may either be: 1) PLEA OF GUILTY Plea of Guilty of Lesser Offense – Requisites: a. With the Consent of the Offended party b. With the consent of the Fiscal, c. Allowance by the trial court d. Plea of guilty to a lesser offense which is Necessarily Included in the offense charged e. No amendment of the complaint or information is necessary f. Effect of conviction in which double jeopardy attaches. Plea of Guilty to Non-Capital Offense – the court may receive evidence from the parties to determine the penalty to be imposed. Plea of Guilty to Capital Offense – the court shall (MANDATORY): 1. Conduct searching inquiry into the voluntariness and full apprehension of the consequences of his plea 2. Require prosecution to prove his guilt and the precise degree of culpability 3. Proof of corpus delicti 4. Accused may also present evidence in his behalf. 2) PLEA OF NOT GUILTY: a) Plea of not guilty expressly b) Refusal to plead c) Conditional plea of Guilty d) Improvident Plea of Guilty – which is submitted to the sound discretion of the court (People vs. Mendoza 1982) e) Plea of Guilty with Exculpatory Evidence f) Plea is indefinite or ambiguous AS TO THE OFFENDED PARTY:

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Presence of the offended party is required for: 1) Plea bargaining – which shall not be valid until he consents thereto General Rule: PRESENCE OF THE OFFENDED PARTY IS NEEDED FOR PLEA BARGAINING and without him, any plea of guilty to lesser offense without his consent is invalid and DJ will not attach. Exception: Failure to appear in the arraignment of the offended party after due notice, plea of guilty to lesser offense MAY BE ENTERED INTO BY THE ACCUSED WITH THE CONFORMITY OF FISCAL ALONE SHALL BE INVALID 2) Determination of civil liability, and 3) Other matters where his presence is required. *** When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (People vs. Baliscan, 17 SCRA 1119) *** Paragraph (d) refers to a situation where an accused pleads guilty but invokes the mitigating circumstance of incomplete self-defense (Article 13 RPC). If the accused after being allowed to present evidence, however adduces proof not only to establish incomplete self-defense, but that he acted with legal justification, his earlier plea of guilty shall be deemed withdrawn and a plea of not guilty shall be entered for him. *** Paragraph (e) provides for a shorter time within which an accused who is detained should be arraigned. This is shorter than what is provided for in the Speedy Trial Act (RA 8493). *** Under paragraph (f), to avoid delay, the presence of the offended party is now required during the arraignment and also to discuss the matter of accused’s civil liability. His failure to appear despite due notice gives the court discretion to allow the accused to plead guilty to a lesser offense with solely the conformity of the trial prosecutor. The amendment in (g) was taken from SC Circular 38-98. HOWEVER: SEC. 11. Suspension of arraignment.- Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, That the period counted from the filing of the petition with the reviewing office. (12a) SEC. 9. Remedy where accused is not brought to trial within the time limit.- If the accused is not brought to trial within the time limit required by Section 1 (g), Rule 116 and Section 1, as extended by Section 6 of this rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (Sec. 14, Circ. 38-98) PERIODS FOR ARRAIGNMENT: *** The arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided by special law or by SC Circular. *** If accused is under preventive detention his case must be raffled within 3 days from filing of information. His arraignment made within 10 days from raffle not to exceed 30 days from arrest excluding the period in which any of the remedies before plea. There are, however, certain laws and Supreme Court Circulars which provide for a shorter period within which the accused should be arraigned, such as:

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a. Republic Act No. 4908, which requires that in criminal cases 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 three (3) days from arraignment and that no postponement of the initial hearing should be granted except on the ground of illness on the part of the accused or other grounds beyond the control of the court. b. R.A. No. 7610, the Child Abuse Act, which requires that the trial of cases falling under said law shall be commenced within three (3) days from arraignment. c. The Dangerous Drugs Law, which requires the trial of cases falling under said law shall be finished not later than ninety (90) days from the filing of the information, and the decision thereon, within fifteen (15) days from the submission of the case. d. Cases falling under Supreme Court Administrative Order No. 104-96, i.e., heinous crimes, violations of the Intellectual Property Rights Law, which are required to be tried continuously until terminated within sixty (60) days from commencement of trial and to be decided within thirty (30) days from the submission of the case. Accused under preventive detention *** While RA 8493, or the Speedy Trial Act, provides that the accused shall be arraigned within 30 days from the time a court acquires jurisdiction over his person, Rule 116 section 1(e) provides for a shorter time within which an accused who is under preventive detention should be arraigned. When an accused is detained, his case should be raffled within 3 days from the filing of the information or complaint against him, and the judge to whom his case is raffled shall have him arraigned within 10 days from receipt by the judge of the records of the case. The pre-trial conference shall be held within 10 days after the arraignment. *** No trial in absentia can be validly held without first arraigning the accused, and he cannot be arraigned without his personal appearance in court.
*** In substantially amended information or substitution of information, the accused must enter a new plea. Otherwise it is irreversible error. (Cabangangan vs. Concepcion 95 Phil 87)

Examples of Invalid Plea of Guilty: 1. Plea obtained through violence or intimidation; 2. Accused did not fully understand the meaning and consequences of his plea; 3. Information is insufficient to sustain a conviction; 4. Information does not charge an offense; 5. Where the court has no jurisdiction. 2000 Amendment Sec. 2. Plea of guilty to a lesser offense. – At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense WHICH IS NECESSARILY INCLUDED IN THE OFFENSE CHARGED. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (sec. 4, Circ. 38-98) __________ *** The new rule provides that the accused may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged, and deleted the phrase, “regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court.” *** It should be noted, however, that the amendment did not say that an accused may be allowed to plead to a lesser offense only if the same is necessarily included in the offense charged. The provision employs the word “may,” which is permissive and implies that the court may still allow an accused to plead guilty to a lesser offense, even if the latter is not included in the offense charged. Consent of offended party required: *** The consent of the offended party to allowing the accused to plead guilty to a lesser offense is necessary. It has been held that if the plea of guilty to a lesser offense is made without the consent of the prosecutor and the offended party, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former information.

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IF WITHOUT CONSENT OF FISCAL AND OFFENDED PARTY  the conviction of the accused shall not be a bar to another prosecutor for an offense which necessarily include the offense charged in the information Change of plea *** After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party and only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. The judge cannot on its own grant the change of plea. Sec. 3. Plea of guilty to capital offense; reception of evidence *** An improvident plea means a plea without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information or advice.
*** Only conclusion of facts with all attendant circumstances alleged in information is admitted by plea of guilty not conclusion of law like “Habitual Delinquency” (People vs. Ocbina 63 Phil 528)

*** Conviction in a capital offense cannot rest alone on a plea of guilty, a free and intelligent plea. It is mandatory for the trial court to require the prosecution to present its evidence and, if the accused so desires, to allow him to submit his evidence. This is so even if the accused formally manifests that he waives presentation of evidence by the prosecution.
*** Conviction in capital offense does not rest alone on plea of guilty. The trial court must require the prosecution to prove the guilt of accused beyond reasonable doubt (People vs. Alicando 251 SCRA 293)

Sec. 4. Plea of guilty to non-capital offense; reception of evidence, discretionary What a plea of guilty includes: *** The plea of guilty covers both the crime as well as its attendant circumstances alleged in the complaint or information, qualifying and/or aggravating the crime. Such plea removes the necessity of presenting further evidence and for all intents and purposes the case is deemed tried on its merits and submitted for decision. It leaves the court with no alternative but to impose the penalty prescribed by law. Mitigating circumstances: *** The trial court may allow an accused to plead guilty and at the same time allow him to prove other mitigating circumstances. However, if what the accused would prove is an exempting circumstance, which would amount to a withdrawal of his plea of not guilty, the trial court may not allow him to take the witness stand. *** If the accused is permitted to present evidence after his plea of guilty to a non-capital offense and such shows that the accused is not guilty of the crime charged, the accused must be acquitted, for there is no rule which provides that simply because the accused pleaded guilty to the charge that his conviction automatically follows. Additional evidence independent of the plea may be considered to convince the judge that it was intelligently made. Section 5. Withdrawal of improvident plea of guilty. IMPROVIDENT PLEA > a plea without proper information as to all the circumstances affecting it - based upon a mistaken assumption or misleading information or advice *** At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. This is not a matter of absolute right on the part of the defendant but lies entirely within the sound discretion of the trial court, and appellate courts shall not interfere with such discretion in the absence of clear abuse thereof. A plea of guilty later withdrawn is not admissible in evidence against an accused. Effect: *** change of the accused’s plea from guilty to that of not guilty is the setting aside of the judgment of conviction and the re-opening of the case for new trial.

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In order to be valid, the plea must be an unconditional admission of guilt. It must be of such nature as to foreclose the defendant’s right to defend himself from said charge, thus leaving the court no alternative but to impose the penalty fixed by law. *** The withdrawal must at least have a rational basis. The accused should state that he has a meritorious defense to the charge. The motion should be set for hearing and the prosecution heard thereon. *** No valid judgment can be rendered upon an invalid arraignment and this includes an improvident plea > The case should be remanded to the trial court for further proceedings Section 6. Duty of court to inform accused of his right to counsel. DUTIES OF THE COURT WHEN THE ACCUSED APPEARS AT THE ARRAIGNMENT WITHOUT COUNSEL: 1. inform the accused of his right to counsel 2. ask him if he desires to have one 3. if he desires and is unable to employ an attorney, the court must assign an attorney de oficio to defend him; and 4. if the accused desires to procure an attorney of his own, the court must grant him a reasonable time therefor. *** Failure of the courts to fulfill/comply with this duty is a denial of due process. Section 7. Appointment of counsel de oficio. *** A private prosecutor who assisted the prosecuting attorney in the prosecution against one defendant is disqualified from acting as counsel de oficio for the other defendants in the same case. An attorney cannot act in a double capacity.

*** Although the attorney appointed as counsel de oficio had previously appeared as private prosecutor in the case, if it appears that the accused was properly defended, the appointment, even if erroneous, is not a reversible error. In localities where such members of the bar are not available, the court may appoint any person who is: 1. resident of the province and 2. of good repute for probity and ability to defend the accused. 2000 Amendment Sec. 8. Time for counsel de oficio to prepare for arraignment. – Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a REASONABLE TIME to consult with the accused as to his plea before proceeding with the arraignment. __________ *** Under the old rule, the counsel de oficio only had “one hour” to consult with the accused before arraignment.  the time limit of “one hour” under the old rule is substituted by “REASONABLE TIME” Express demand: *** Counsel for the accused must expressly demand the right to be given reasonable time to consult with the accused. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Sec. 9. Bill of particulars *** At or before arraignment, the accused may move for a “bill of particulars.” *** Rule 12 of Civil Procedure on bill of particulars is applicable in criminal proceedings. *** The failure to ask for Bill of Particulars amounts to a waiver of such right.

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It is not the office of the bill of particulars to: 1) Supply material allegation necessary to the validity of a pleading 2) Change a cause of action or defense stated in the pleading, or to state a cause of action or defense other than the one stated. 3) Set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to rely 4) Furnish evidentiary information whether such information consists of evidence which the pleader proposes to introduce or of facts which constitute a defense or offset for the other party or which will enable the opposite party to establish an affirmative defense not yet pleaded. *** The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definition is a motion for a bill of particulars and not a motion to quash. The filing of a motion for bill of particulars suspends the period to file a responsive pleading. 1) If the motion is granted, the moving party has the remaining period or at least 5 days to file his answer from service of the bill of particulars. 2) If the motion is denied, he has the same period to file his responsive pleading from receipt of the order denying the motion. *** The former Section 9 of this Rule is no longer reproduced because under Section 1, Rule 119, the accused shall have fifteen (15) days to trial, which shall commence within thirty (30) days from receipt of the pre-trial order. Sec. 11. Suspension of arraignment Tests to determine insanity: 1) the test of cognition (which is used in this jurisdiction) or the complete deprivation of intelligence in committing the criminal act 2) the test of volition or that there be a total deprivation of freedom of the will. REMEDIES AFTER ARRAGINMENT AND PLEA: 1) Withdrawal of improvident plea of guilty – at any time before the judgment of conviction becomes final which shall be substituted by a plea of not guilty  re-opens the case for trial 2) Motion to dismiss on the ground of Denial of right to Speedy Trial – if the accused is not arraigned within 30 days or the case was not tried within 30 days from receipt of pre-trial order or for more than 180 days without any decision having been made NOTE:In case granted, the same shall be subject to the rules on double jeopardy but in case of failure to move for dismissal, it is considered a waiver of his right to dismiss (not his right to speedy trial under 1987 Constitution)

RULE 117 MOTION TO QUASH
Section 1. Time to move to quash. *** The accused may move to quash the complaint or information at any time BEFORE entering his plea. GENERAL RULE: A MTQ may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court. EXCEPTION: under the circumstances mentioned in Sec. 9, Rule 117, which adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground that the facts alleged in the information charge no offense, that the offense or penalty has prescribed, or that the doctrine of double jeopardy precludes the filing of the information. Instances where a motion to quash may be filed AFTER plea: 1. failure to charge an offense 2. lack of jurisdiction over the offense charged

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3. extinction of the offense or penalty 4. double jeopardy The right to file a MTQ belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motu propio initiate a MTQ by issuing an order requiring why the information may not be quashed on the ground stated in said order. QUASHAL AND NOLLE PROSEQUI DISTINGUISHED: *** The quashal of complaint or information is different from a nolle prosequi, although both have one result, which is the dismissal of the case. *** A nolle prosequi is initiated by the prosecutor while a quashal of information is upon motion to quash filed by the accused. *** A nolle prosequi is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of its judicial discretion. It partakes of the nature of a nonuser or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. It is not an acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense. Section 2. Form and contents. Form and contents of a motion to quash: 1. in writing 2. signed by the accused or his counsel 3. shall specify distinctly the factual and legal grounds therefor. “Factual and legal grounds” must be stated - This provision requiring that the “factual and legal grounds” be stated in the motion allows that facts outside the information itself may be introduced to prove any of the grounds of a MTQ, enumerated in Sec. 3. Such inquiry into outside facts may also be allowed even when the ground invoked is that the allegation in the information does not constitute the offense charged. *** A motion to suspend the issuance of a warrant of arrest may be considered a motion to quash because it is not the caption of the pleadings but the allegations therein contained that should prevail. The allegations of said motion, in effect, mean that the information does not charge an offense. 2000 Amendment Sec. 3. Grounds. – xxx xxx xxx (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; xxx xxx xxx (i) That the accused has been previously convicted or acquitted of the offense charged OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESS CONSENT. __________ GROUNDS OF MOTION TO QUASH: 1) The Facts charged do not constitute an offense: 2) The court has No jurisdiction over the offense charged: 3) The court has No jurisdiction over the person over the person of the accused; 4) The Officer who filed the information had no authority to do so: 5) Non-conformity substantially to the prescribed Form: 6) More than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses 7) The criminal action or liability has been Extinguished, either by DAS-ADP-PPM 8) That it contains averments, which if true, would constitute a Legal Excuse or justification 9) The accused has been previously convicted or acquitted of the offense charged (Double Jeopardy) or the CASE AGISNT HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESSED CONSENT. *** The right to file a MTQ belongs only to the accused

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*** judge cannot motu proprio initiate a MTQ by issuing an order requiring why the information may not be quashed on the ground stated in the order *** Grounds for MTQ could not be raised for the first time on appeal A. FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE - if the statute excepts certain persons or classes of persons from liability, the complaint should show that the person charged does not belong to that class. (U.S. vs. Pompeya). - This principle does not apply if the language of the defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without reference to the exception. In a MTQ based on the ground that the facts alleged in the information do not constitute the offense charged, the trial court should limit its inquiry to: 1) the averments in the information, as hypothetically admitted; 2) facts admitted by the prosecution; and 3) indubitable facts. * Test of Completeness of Info : Whether the facts alleged, if hypothetically admitted, constitute the elements of the offense (People vs. Supnad 1963)
PEOPLE vs. ASUNCION (161 SCRA 490) Where the information is void or charges an offense that does not really exist, the presentation of evidence cannot validate said information.

B. THE COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED:
*Test: Whether or not the law expressly or by necessarily implication gave the power to the court to hear and decide the case.

C.

THE COURT HAS NO JURISDICTION OVER THE PERSON OVER THE PERSON OF THE ACCUSED;

*** Acquisition of Jurisdiction over the person accused may either be (1) by arrest of the accused or (2)voluntary surrender

Where ground for MTQ is illegal arrest: *** If the accused believes that the arrest, with or without warrant, is illegal, he should move to quash the information on such ground, along with other grounds as otherwise such other grounds will be deemed waived if not included in the MTQ, except no offense charged, lack of jurisdiction over the offense, prescription of offense or liability, or double jeopardy. JURISDICTION PROCEDURE 1. Deals with the powers of the court in the 1. Deals with the procedure by which such real and substantive sense. powers are put into action. 2. The thing itself. 2. The vehicle by which the thing is transferred from the court to the parties. JURISDICTION Being a power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decision made. The authority to decide a case at all, and not the decision rendered therein, is what makes up jurisdiction. EXERCISE OF JURISDICTION Where there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction.

Requisites for criminal jurisdiction: 1. the offense is one which the court is by law authorized to take cognizance of 2. the offense must have been committed within its territorial jurisdiction 3. the person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court CLASSIFICATION OF CRIMINAL JURISDICTION

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A. As to its object: 1. jurisdiction over the crime 2. jurisdiction over the person of the accused 3. jurisdiction over the place where the crime was committed or territorial jurisdiction B. As to its nature: 1. original and appellate jurisdiction 2. exclusive & concurrent jurisdiction JURISDICTION OVER THE SUBJECT MATTER 1. Derived from the law. It can never be acquired solely by consent of the accused. 2. Objection that the court has no jurisdiction of the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived. JURISDICTION OVER THE PERSON OF THE ACCUSED 1. May be acquired by consent of the accused or by waiver of objections. 2. If he fails to make his objection in time, he will be deemed to have waived it.

PEOPLE vs. NITAFAN (302 SCRA 424) Even if the accused did not, in his “Motion to Quash” include lack of jurisdiction as a ground therefor, he may still file the same during the trial.

D. THE OFFICER WHO FILED THE INFORMATION HAD NO AUTHORITY TO DO SO: Kinds of Unauthorized Filing of Info: 1. If officer is irregularly appointed – information he signed cannot be invalidated; 2. If officer is disqualified – the information signed by him is invalid and the court did not acquire jurisdiction over it because a qualified and authorized officer is required for the jurisdiction over the case (Villa vs. banez 88 Phil 402) 3. If officer filed the information without the approval by the head/Chief Fiscal – the information filed by him is invalid because a qualified and authorized officer is required for jurisdiction over the case; 4. If officer filed information alone involving private crimes – the information is invalid for lack of jurisdiction (People vs. Manaba) *** The prosecutor who signed the information must have territorial jurisdiction to conduct the preliminary investigation of the offense, otherwise the information filed by him would be invalid and can be quashed on such ground. E. NON-CONFORMITY SUBSTANTIALLY TO THE PRESCRIBED FORM: TEST: Whether or not the amendment of the information involves matters of form in order that it will be sufficient. F. MORE THAN ONE OFFENSE IS CHARGED EXCEPT IN THOSE CASES IN WHICH EXISTING LAWS PRESCRIBE A SINGLE PUNISHMENT FOR VARIOUS OFFENSES TEST: Whether or not the accused will be confused or render his defense difficult in the information filed Note: That this defect may be waived and the court may proceed to try both crimes as if there was a separate information filed and shall render decision for each with separate penalties. *** The fact that the allegations in the complaint or information are vague or broad, is not generally a ground for a motion to quash, the remedy being to file a motion for bill of particulars.
ENRILE vs. AMIN (G.R. No. I-93335 September 13, 1990) Where the accused is charged of a crime defined in a special law which is already absorbed in a political crime during the pendency of said political crime, he may file a motion to quash the second information and suspend the issuance of a warrant of arrest.

G. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED

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*** The period of prescription of violation of special laws or offenses not penalized by the Revised Penal Code but by special laws, and municipal ordinances is governed by Act No. 3326 which took effect on December 4, 1926. Doctrine of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 317 SCRA 272 (1999): *** If the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed, otherwise on the date of its discovery. *** In the very nature of things, acts made criminal by special laws are frequently not immoral or obviously immoral in themselves. For this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescriptive period begins to run only from the discovery thereof, that is, discovery of the unlawful nature of the constitutive act or acts, in connection with which there should be evidence. Regarding prescriptive periods: *** Where an accused has been found to have committed a lesser offense includible within the offense charged, he cannot be convicted of the lesser offense if it has already prescribed. To hold otherwise would be to sanction the circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver offense. *** The rule that if the last day falls on a Sunday or a holiday, the act can still be done the following day does not apply to the computation of the period of prescription of a crime, in which the rule is that if the last day in the period of prescription of a felony falls on a Sunday or legal holiday, the information concerning said felony cannot be filed on the next working day, as the offense has by then already prescribed. *** The period of a continuing crime’s prescription is counted from the latest or last act constituting the series of acts continuing the single crime. *** The prescriptive period of offenses penalized by special laws and ordinances is interrupted only by the filing of complaint or information in court. This is without distinction as to whether the cases are covered by the Rule on Summary Procedure. *** The period of prescription does not run when the offender is absent from the Philippines. REGARDING PARDON: *** Unless grounded on the person’s innocence, a pardon by the President cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not necessarily result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. CONTENTIOUS MOTIONS: *** Contentious motions in criminal cases must comply with the requirements that they be set for hearing at a specified date with prior notice to the adverse party or the prosecutor at least 3 days before the hearing, the notice of hearing should be addressed to adverse counsel or the prosecutor, and proof of service of the motion upon the adverse party or prosecutor at least 3 days prior to such hearing. This is mandatory. Instances when the criminal action or liability is extinguished as a ground of a motion to quash: 1. death of the convict, as to personal penalties 2. service of the sentence 3. amnesty 4. absolute pardon 5. prescription of the crime 6. prescription of the penalty 7. marriage of the offender with the offended party, as provided in Article 344 of the same Code. H. THAT IT CONTAINS AVERMENTS, WHICH IF TRUE, WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION

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- Examples are the averments of facts constituting absolutory causes, justifying, exempting or mitigating circumstances;

I. THE ACCUSED HAS BEEN PREVIOUSLY CONVICTED OR ACQUITTED OF THE OFFENSE CHARGED ( DOUBLE JEOPARDY ) OR THE CASE AGISNT HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESSED CONSENT. *** The old phrase “in jeopardy of being convicted” was replaced in par. (I) to conform with People vs. Pineda (219 SCRA 1) Remedy of aggrieved party *** While an order granting a motion to quash, unlike a denial thereof, is appealable, as the proper remedy, this rule does not preclude the aggrieved party from filing a special civil action of certiorari, as a substitute for the remedy of a lost appeal, where there is a patent, capricious and whimsical exercise of discretion by a trial judge or where an appeal will not promptly relieve the aggrieved party from the injurious effect of the disputed order, as in the quashal of an information for incomplete preliminary investigation. 2000 Amendment Sec. 4. Amendment of complaint or information. – xxx xxx xxx If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. (n) __________ *** If an alleged defect in the complaint or information which is the basis of a motion to quash can be cured by amendment, the court shall order the amendment instead of quashing the complaint or information. If, after the amendment, the defect is still not cured, the motion to quash should be granted. *** An information does not charge an offense if one or more of its essential elements have not been alleged therein. The amendment of the information to allege the element(s) not stated in the information is a material amendment, but the same can be done because the accused has not been arraigned, nor can a dismissal of the information on such ground put the accused twice in jeopardy. *** A good tactical move may require that the accused should first plead to the information and thereafter file a motion to quash either before or after the prosecution has presented its evidence. Pursuant to Sec. 9 of Rule 117, an accused, even after he has entered his plea, may still move to quash the information on the ground that it does not charge an offense. If the case is dismissed on such ground, the prosecution may not be permitted to correct the information because the accused has already pleaded and to allow such amendment may place the accused twice in jeopardy. Section 5. Effect of sustaining the motion to quash. Judgment of the Court: A) An order granting MTQ is appealable and no DJ because dismissal was obtained with his expressed consent. 1. Grounds of MTQ is Formal & Curable by Amendment: MTQ is dismissed and the court shall order the amendment without prejudice to the accused. 2. Grounds of MTQ is Facts Do Not Constitute an Offense: the court shall give reasonable opportunity to correct the defect for the prosecution. Otherwise, court shall dismiss it if: a. Failure of prosecution to make amendment; b. Information still suffer from such defect despite amendment 3. Ground of MTQ is based on Prescription or Double Jeopardy – the court shall order the absolute dismissal of the case and shall be a bar to another prosecution. B) An order denying MTQ is interlocutory and not appealable and not controllable by certiorari, mandamus or prohibition GENERAL RULE: An order sustaining the MTQ is not a bar to another prosecution for the same offense. EXCEPTION: MTQ based on the ground of Prescription or Double Jeopardy

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COURSES OF ACTION THE COURT MAY TAKE IF IT SUSTAINS A MOTION TO QUASH: 1. the dismissal of the information, which is deemed to all intents and purposes, wiped out and the case then stood as if no information had ever been filed 2. the filing of a new information, if the accused is in custody he shall remain so unless he is released on bail. If there is no such order or if there is such order and no new information is filed within the period fixed in the order or within such further time as the court may allow for good cause shown, the accused, who is in custody, shall be discharged therefrom, unless he is in custody for another offense. Procedure in case of Denial of Motion to Quash: The defendant should go to trial without prejudice on his part to present the special defenses he had invoked in his motion and, if after trial on the merits, an adverse decision is rendered to appeal therefrom in the manner authorized by law. *** A motion to quash is always addressed to the discretion of the court. Neither certiorari nor prohibition lies against an order of the court granting or denying a motion to quash an information. 2000 Amendment Sec. 7. Former conviction or acquittal; DOUBLE JEOPARDY. – xxx xxx xxx

However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) xxx xxx xxx (b) The facts constituting the graver charge became known or were discovered only after a PLEA was entered in the former complaint or information; or (c) The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party EXCEPT AS PROVIDED IN SECTION 1(F) OF RULE 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. (7a) (No. 117970, July 28, 1998) _________ Jeopardy -- exposure to danger. When a person is prosecuted before a court which has authority to decide the issue between the State and himself, he is then exposed to danger in that he is in peril of life and liberty Extent of protection afforded by the rule on double jeopardy : 1. against the peril of a second punishment 2. against the peril of a second trial for the same offense or for an attempt to commit the same of frustration thereof. Requisites for double jeopardy: 1. the accused has been convicted or acquitted 2. the case against him has been dismissed or otherwise terminated without his express consent 3. the court which convicted or acquitted the accused or dismissed or terminated the case is a court of competent jurisdiction 4. the complaint or information was valid and sufficient in form and substance to sustain a conviction 5. the accused has pleaded to the charge 6. there is a subsequent prosecution against the accused for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former prosecution. Dismissal vs. Acquittal

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- Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendant’s guilt beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. VALID COMPLAINT OR INFORMATION GENERAL RULE: an invalid complaint cannot lead to a valid judgment and will not place the accused under jeopardy, Hence, it may be filed without placing him in double jeopardy. EXCEPTION: when a defective complaint was dismissed, not on motion by accused, the same cannot be re-filed by complainant without violating this provision since the former case was terminated without his express consent. (US vs. Yam Tung Way 21 Phil. 67) ON DISMISSAL WITHOUT EXPRESS CONSENT GENERAL RULE: a dismissal with expressed consent of the accused will not bar the prosecution of the same offense because such consent is considered a valid waiver of his right against double jeopardy. EXCEPTION: a dismissal, even with expressed consent of the accused will bar the prosecution of the same offense, because they are considered an acquittal where State cannot appeal even if erroneous, such as: 1) insufficiency of evidence of the prosecution (People vs. Court of Silay 74 SCRA 248) 2) denial of the right to speedy trial and disposition of case (Esmena vs. Pogoy 100 SCRA 861) - Consent in this instance must be expressed which includes the accused counsel acts/assent (People vs. Pilpa 76 SCRA 81), but it excludes mere silence or failure of the accused to object to the dismissal. - Dismissal means, in order to consider that a consent of the accused (motion to dismiss) is a waiver of his right against double jeopardy, the following must concur: 1. the dismissal was sought or induced by defendant personally or through counsel; 2. the dismissal must be on the merits and must not necessarily amount to an acquittal. *** If the dismissal is based on insufficiency of evidence to establish the guilt of the accused beyond reasonable doubt, the dismissal is actually an acquittal. *** If the dismissal is based on the right of the accused to a speedy trial, the dismissal amounts to an acquittal and operates to bar another prosecution for the same offense even if the dismissal were upon motion of the accused.
PEOPLE vs. BALADJAY (113 SCRA 284) As a general rule, if the dismissal is merely provisional, the accused cannot invoke double jeopardy. However, if the accused invoked his right to a speedy trial and the court, upon motion of the accused provisionally dismissed the case, he can invoke double jeopardy. The use of the word (provisional) would not change the legal effect of the dismissal. It is an acquittal.

Prosecution can Appeal even if Dismissed 1) if the accused waived or estopped from invoking his right to DJ (People vs. Obsania 23 SCRA 1249) 2) if the prosecution is denied of due process of law (People vs. Navarro 63 SCRA 264) 3) If there is a grave abuse of discretion (People vs. Mogol 131 SCRA 296) *** The discharge of a defendant on a preliminary investigation is not such an adjudication in his favor as will bar a subsequent prosecution for the offense. This is because a preliminary investigation is not trial or any part thereof and does not have for its object that of determining definitely the guilt of the accused by proofs, counter-proofs, and the other formalities prescribed by law. COURT OF COMPETENT JURISDICTION GENERAL RULE: 1) court without jurisdiction cannot render a valid judgment and will not place the accused under jeopardy. Hence, it may be refilled without placing him in double jeopardy ( De Guzman vs. Escalona 98 SCRA 619) 2) where the judge acted with grave abuse of discretion amounting to lack of jurisdiction, DJ will not attach (People vs. Pablo 98 SCRA 289) 3) where the case was erroneously filed in City Court and later filed in RTC of Quezon which is the proper court, no DJ (People vs. Puno 208 SCRA 550)

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4) Mistake in the charging of the offense not within the jurisdiction of the MTC, subsequent filing in RTC will not violate the prohibition against DJ (Gonzales vs. CA 232 SCRA 667) 5) Dismissal of the case filed before the RTC where in fact it should have been filed in Sandiganbayan, will not bar filing in the proper court (Cunanan vs. Arceo 242 SCRA 88) EXCEPTION: where an information was dismissed by the trial court motu proprio for lack of jurisdiction where in fact it has, such dismissal will inure to the benefit of the accused who is entitled to plead double jeopardy (US vs. Regal 28 Phil 57) AS to Trial in Military Tribunals: 1) Court martial and civil court have concurrent jurisdiction, a decision of one will bar the prosecution for the same offense in the other. (Crisologo vs. People 94 Phil 477) 2) Military tribunals had no jurisdiction to try cases of civilians, which fall under the jurisdiction of the civil courts even during martial law, their decisions are invalid and hence, double jeopardy does not attach (Olaguer vs. Military Commission 150 SCRA 144) 3) Application of Olaguer case must be prospective, only to future cases or still on going. Such final sentences by the State should not be disturbed. (Tan vs. Barrios 160 SCRA 702) “SAME OFFENSE” under the general rule, has always been construed to mean not only that the second offense charged is exactly the same as the one alleged in the first information but also that the two offenses are identical. TEST FOR DETERMINING WHETHER THE TWO OFFENSES ARE IDENTICAL - There is IDENTITY between two offense not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to or is necessarily included in the offense charged in the first information. Exceptions to the identity rule: 1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party; except when the offended party failed to appear during the arraignment. INSEPARABLE OFFENSE: GENERAL RULE: where one offense is inseparable from another and proceeds from the same act, they cannot be a subject of separate prosecutions. EXCEPTION: several offense arising from the same act can be a subject of separate prosecutions provided that the elements of the crime are not identical or punishable by different laws, one by RPC and one by statute (People vs. Tac-an 182 SCRA 601) “DOCTRINE OF SUPERVENING EVENT” – the accused may be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted. Double jeopardy will apply... *** when the complaint or information is dismissed by a court of competent jurisdiction after the prosecution has presented its evidence even if the dismissal is in the mistaken ground of lack of jurisdiction.
Other Cases Where Right Against DJ May be Invoked: 1. When case was permanently dismissed after 1 year or 2 years, as the case may be after provisional dismissal; 2. When the case was dismissed when accused not brought to trial in violation of speedy trial act; 3. When the case was dismissed for insufficiency of evidence; 4. When accused was properly discharged as a state witness.

Double jeopardy will not apply… *** In case of a conviction of a crime under a special law, which also constitutes an offense under the Revised Penal Code. Reason: the former is malum prohibitum, while the latter is malum in se. Thus, it has been held that conviction for the crime of illegal recruitment under the Labor Code does not preclude punishment for the offense of estafa under the RPC.

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*** where 2 informations are filed charging the same accused with 2 different elements, as in the issuance of bouncing check for estafa under the RPC and violation of BP 22. *** where after trial of a charge of serious physical injuries, the municipal trial court dismissed the case to give way to the filing of a complaint for frustrated murder, as it believed that what was proved was frustrated murder, the dismissal was null and void because the trial court should have rendered judgment based on the charge alleged in the information and the evidence adduced during the trial. Since the dismissal was null and void, it did not place the accused twice in jeopardy for the continuation of the proceedings for serious physical injuries. *** where the accused has been sentenced to suffer a wrong penalty by the trial court, the petition for certiorari filed by the prosecutor to correct the penalty which should be lower than that imposed does not place the accused twice in jeopardy because it would shorten the penalty and is favorable to the accused. *** where one case is administrative in nature and the other criminal. preliminary investigations. Neither does it apply in

SCOPE OF APPLICATION OF DJ: Bar to another prosecution for the following offenses; 1) For the Same offense; 2) For the Attempt to commit the same; 3) For Frustration thereof; or 4) For any offense which Necessarily Includes or is necessarily included in the first offense charged.
PEOPLE vs. DELOS REYES (215 SCRA 63) Where the accused was discharged as a state witness but the order of discharge was recalled by the court. The accused with the approval of the court and the prosecution testified for the prosecution. The subsequent testimony of the accused had the effect of nullifying the recall order.

Distinction between 1st Double Jeopardy and 2nd Double Jeopardy (enunciated in Yap vs. Lutero L1266 April 30, 1959) POINTS OF 1ST DOUBLE 2ND DOUBLE
COMPARISON JEOPARDY JEOPARDY

1) Subject

2) Application

3) Effect

prohibit another prosecution w/c arise from the same offense (the question of identity of the offense) may be charged twice for the same act but for different offense even if it is punished by a law or ordinance may be invoked even if there is no acquittal or conviction

a bar to another prosecution from the same act (question of identity of act) may not be charged for the same act if it is punished by a law or ordinance, although it is of different offense can be invoked only if the accused have been acquitted or convicted either by law or ordinance

2000 Amendment Sec. 8. Provisional dismissal. – A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. (n) --------------------*** If a case is provisionally dismissed with the consent of the prosecutor and the offended party, the failure to reinstate it within the given period will make the dismissal permanent. Important!: A trial court may not order a provisional dismissal of the case without the express consent of the accused and prior notice to the offended party. The trial court, cannot, on its own, provisionally dismiss the case, nor can it dismiss it provisionally without the express consent of the prosecutor.

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PERIOD FOR REINSTATEMENT: a) offenses punishable by imprisonment not exceeding 6 years = ONE YEAR b) offenses punishable by imprisonment of more than 6 years = TWO YEARS > Otherwise the dismissal shall be removed from being provisional and becomes permanent. Section 9. Failure to move to quash or to allege any ground therefor. RULE: If the accused does not move to quash the complaint or information before he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash, EXCEPT: when the complaint or information 1. the information does not charge an offense 2. the court is without jurisdiction over the offense charged 3. the offense or penalty has been extinguished 4. double jeopardy has attached

RULE 118 PRE-TRIAL
2000 Amendment Sec. 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Secs. 2 & 3, Circ. 38-98) ________ *** Pre-trial is MANDATORY in all criminal cases, pursuant to the provisions of the Speedy Trial Act.
*** Pre-trial involves only marking of evidence not “offer of evidence” and any move by the accused to offer evidence without trying its admissibility and over the objection of the prosecution, is invalid and any judgment rendered thereon is void. (People vs. Santiago 1989)

2000 Amendment Sec. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (Secs. 2 & 3, Circ. 38-98) _________ Requisites before the pre-trial agreement can be used as evidence: 1. they are reduced to writing 2. the pre-trial agreement is signed by the accused and his counsel GENERAL RULE: Pre-trial agreements or admissions made must be signed reduced to writing and signed by him and his counsel. Otherwise, it cannot be used in evidence against the accused. EXCEPTIONS: Agreements as to number of witnesses, pre-trial dates, etc shall be valid even if not signed by accused.
FULE vs. COURT OF APPEALS (162 SCRA 446) The pre-trial agreement must be signed by the accused and his counsel and reduced into writing. If the accused did not sign the agreement, the same is not binding on the accused even if in his memorandum, the counsel of the accused confirmed the agreement.

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Sec. 2-A. Pre-trial conference; subjects. – The pre-trial conference shall consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; and (f) such matters as will promote a fair and expeditious trial. (n) _________ Subjects considered during the pre-trial: 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; and 6. such other matters as will promote a fair and expeditious trial PLEA BARGAINING - process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge *** The agreements covering matters referred to in section 1 of this Rule (plea bargaining, etc.) need to be approved by the court. *** The purpose of requiring the accused to sign the stipulation of facts is to further safeguard his rights against improvident or unauthorized agreement or admission which his counsel may have entered into without his knowledge. (People vs. Uy, 2000) 2000 Amendment Sec. 3. Non-appearance at pre-trial conference. – If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. (Sec. 5, Circ. 38-98) Sec. 4. Pre-trial order. – After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of the action during the trial, unless modified by the court to present manifest injustice. (3) _________ *** If the counsel for the accused or the prosecutor does not appear at the pre-trial and does not offer an acceptable excuse, he may be penalized by the court. *** What is a pre-trial order? It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference. Such order binds the parties and limits the trial to those matters not disposed of. Purposes of Pre-trial Order: unless modified by the court to prevent manifest injustice: 1) Bind the parties to issues raised therein; 2) Limit the trial to matters not disposed of; 3) Control the course of the action during the trial. *** What if the accused believes that the pre-trial order contains mistakes or matters which were not taken up during the pre-trial? He must move to correct the mistake or modify the pre-trial order, otherwise, he will be deemed to have waived, and be barred from questioning the same later.
*** Failure to object to irregularities in the pre-trial order shall be deemed a waiver of such objections.

RULE 119 TRIAL
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2000 Amendment Sec. 1. Time to prepare for trial. – After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order. (sec. 6, Circ. 38-98) __________ TRIAL - the examination before a competent tribunal according to the laws of the land, of the facts put in issue in a case for the purpose of determining such issue 2000 Amendment Sec. 2. Continuous trial until terminated; postponements. – Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. (2a) The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. (Sec. 8, Circ. 38-98) ------------------CONTINUOUS TRIAL SYSTEM
CONTINUOUS TRIAL CONCEPT or SYSTEM – mode of judicial fact-finding and adjudication conducted with: - Speed and dispatch; - Trial are held on the Scheduled dates - Without needless postponements; - Well-defined factual issues for trial made at pre-trial and - Terminate whole proceedings and ready for judgment within 180 days from date of initial hearings unless extended for meritorious reasons.

*** The trial shall be continuous (day to day as far as practicable) and the entire trial period shall not exceed 180 days except as otherwise authorized by the Supreme Court. *** The trial may be postponed for a reasonable period of time and for good cause as may be granted by the court. *** The trial judge does not lose jurisdiction to try the case after the 180-day limit. He may, however, be penalized with disciplinary sanctions for failure to observe the prescribed limit without proper authorization by the Supreme Court. *** Purpose of the continuous trial system is to expedite the decision or resolution of cases in the trial court. *** The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for trial well-defined at pre-trial and the whole proceedings terminated and ready for judgment within 180 days from the date of initial hearing, unless for meritorious reasons an extension is permitted. Requirements: 1) Adherence to the session hours prescribed by law; 2) Full control of proceedings by the judge; 3) Allocation and use efficiently of courts time and resources to avoid delays 4) Continuous trial on a weekly or other short-term trial calendar at earliest possible time. PERIODS IN TRIAL (SPEEDY TRIAL ACT): a) Preparation for Trial – at least 15 days from arraignment but shall be within 30 days from pre-trial order; b) Continuous Trial (Entire Trial Period) – NOT TO EXCEED 180 DAYS from first day of trial; c) New Trial – starts within 30 days from receipt of order for new trial but not to exceed 180 days if impractical due to unavailability of witness;

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d) Reopening of the proceedings to avoid miscarriage of justice – terminated within 30 days from order granting it. EXCEPTIONS in time to prepare for trial and 180 days of Trial Period: 1) Rules on Summary Procedure – must be arraigned and tried immediately; 2) RA 4908 where accused is about to depart in the Phils with no definite date of return – arraignment without delay; 3) RA 7610 Child Abuse case – must be tried within 3 days from arraignment; 4) RA 6425 Dangerous Drugs – must be tried within 90 days and decision within 15 days from submission; 5) IPCode cases – trial within 60 days and decision within 30 days from submission of the case; 6) Heinous Crimes cases – trial within 60 days and decision within 30 days from submission. TRIAL IN ABSENTIA Requisites of Trial in Absentia (if not present, there’s denial of due process) 1) The accused has been arraigned 2) He has been notified of the trial 3) His failure to appear is unjustified *** The purpose of trial in absentia is to speed up the disposition of criminal cases. (People vs. Agbulos, 1993) *** What are the effects of trial in absentia? The accused waives the right to present evidence and cross-examine the witnesses against him. (People vs. Landicho, 1996) *** The accused’s waiver does not mean, however, that the prosecution is deprived of the right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. 2000 Amendment Sec. 3. Exclusions. – The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (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 thirty (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; and (7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of an essential witness. For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence. (c) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial. (d) 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.

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(e) Any 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 no motion for separate trial has been granted. (f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of his findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. (Sec. 9, Circ. 38-98) *** Delays covered by the exclusions enumerated under section 3 are subtracted from the computation of the 180-day trial in section 2. 2000 Amendment Sec. 4. Factors for granting continuance. – The following factors, among others, shall be considered by a court in determining whether to grant a continuance under section 3(f) of this Rule. (a) 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 (b) 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. In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of the court’s calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor. (Sec. 10, Circ. 38-98) Sec. 5. Time limit following an order for new trial. – If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend it but not to exceed one hundred eighty (180) days from notice of said order for a new trial. (Sec. 11, Circ. 38-98) Sec. 6. Extended time limit. – Notwithstanding the provisions of Section 1 (g), Rule 116 and the preceding Section 1, for the first twelve-calendar month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-calendar month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-calendar month period, the time limit shall be eighty (80) days. (Sec. 7, Circ. 38-98) Sec. 7. Public attorney’s duties where accused is imprisoned. – If the public attorney assigned to defend a person charged with a crime knows that the latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do the following: (a) 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 so advise the prisoner of his right to demand trial. (b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If 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. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made available accordingly. (Sec. 12, Circ. 38-98) Sec. 8. Sanctions. – In any case in which private counsel for the accused, the public attorney, or the prosecutor: (a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without merit; (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows:

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(1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (P20,000.00); (2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these rules. (Sec. 13, Circ. 38-98) Sec. 9. Remedy where accused is not brought to trial within the time limit. – If the accused is not brought to trial within the time limit required by Section 1 (g), Rule 116 and Section 1, as extended by Section 6 of this Rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under Section 3 of this Rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (Sec. 14, Circ. 38-98) Sec. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. – NO PROVISION OF LAW ON SPEEDY TRIAL AND NO RULE IMPLEMENTING THE SAME SHALL BE INTERPRETED AS A BAR TO ANY CHARGE OF DENIAL OF SPEEDY TRIAL GUARANTEED UNDER ARTICLE III, SECTION 14 (2), OF THE 1987 CONSTITUTION. (Sec. 15, Circ. 38-98) -----------------------*** The Supreme Court issued A.M. No. 00-5-03-SC on December 1, 2000. IT amended the Revised Rules on Criminal Procedure (Rules 110-127 of the Revised Rules of Court) *** The amendments made in RULE 119 (TRIAL) were based on SC Circular 38-98, which is the Implementing Rule of the Speedy Trial Act of 1998 (RA 8493). *** Sections 3 to 10 were inserted after Section 2, as amended. The provisions covering Section 3 to 15 of the old Rule were re-numbered accordingly from Section 11 to 23. *** Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be said that the discretion which the trial court must be judicial and not arbitrary. Sec. 4. Factors for Granting Continuance 1) Whether the failure to grant continuance would make a continuation of the proceeding impossible or result in a miscarriage of justice. 2) The case, as a whole, is novel, unusual and complex, or it is unreasonable to expect adequate preparation within the periods of time established therein. *** Where the court conceives it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either party to continue the case. But a party charged with a crime has no natural or inalienable right to a continuance. (Marcos vs. Ruiz, 213 SCRA 177)
*** Denial or granting of motion for postponement in the trial is addressed to the sound discretion of the court; *** Motion for postponement are granted only based on meritorious grounds and no party has the right to assume that it will be granted (De Guia vs. Guerrero Jr. 234 SCRA 625) *** Granting the motion for postponement cannot be interfered with by certiorari or mandamus absent grave abuse of discretion as long as no substantial rights are affected and not intended to delay (People vs. Hon. Leviste 255 SCRA 238)

*** Parties have a right to be present at the trial of their cases either by themselves or by their attorneys. They are also entitled to reasonable notice of the time set for the trial. So if the trial court discovers that either of the parties to the action has not been notified of the trial, it may, on its own motion, grant a new trial. Requisites before a trial can be put-off on account of the absence of a witness: 1. that the witness is material and appears to the court to be so 2. that the party who applies has been guilty of no neglect 3. that the witnesses can be had at the time to which the trial is deferred and incidentally that no similar

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evidence could be obtained 4. that an affidavit showing the existence of the above circumstances must be filed Remedies of accused where a prosecuting officer without good cause secures postponements of the trial of a defendant against his protest beyond a reasonable period of time: 1. mandamus to compel a dismissal of the information 2. if he is restrained of his liberty, by habeas corpus to obtain his freedom Sec. 5. Time Limit Following an Order for New Trial GENERAL RULE: After an order for new trial is issued, the trial commences within 30 days from notice of the order. EXCEPTION: If the 30-day period becomes impractical due to unavailability of the witnesses and other factors, it may be extended by the court but in no case should it exceed 180 days from notice of said order for new trial. *** The corresponding responsibilities of the principal, accomplice and accessory are distinct from each other. As long as the commission of the offense can be duly established in evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of the principal. Sec. 7. Public Attorney’s Duties Where Accused is Imprisoned 1) If the accused is imprisoned, the public attorney has a duty to obtain the presence of the prisoner for trial or cause 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) The custodian will then inform the prisoner of the latter’s right to demand trial. If the prisoner demands trial, the custodian should then inform the public attorney of such demand. 3) Upon notification, the public attorney should then seek to obtain the presence of the prisoner for trial. Sec. 8. Sanctions Imposed on Private Counsel, Public Attorney or the Prosecutor Acts which will evoke the sanctions: 1) Knowingly allowing the case to be set on trial without disclosing that a necessary witness would be unavailable; 2) Files a motion solely for delay, knowing it to be frivolous and without merit; 3) Knowingly makes a false statement in order to obtain continuance; 4) Willfully fails to proceed to trial without justification. THE SANCTIONS: Private Defense Counsel – fine not exceeding P20, 000 + criminal sanctions, if any. Counsel de officio, Public Attorney or Prosecutor – fine not exceeding P5, 000 + criminal sanctions, if any. Defense Counsel or Prosecutor – denial of the right to practice before the court trying the case for a period not exceeding 30 days + criminal sanctions, if any. *** The sanctions are designed to speed up the trial and disposition of the cases and to encourage the lawyers to go to court ready for trial and not “ready to postpone.” Speedy Trial *** The accused should be brought to trial within 30 days from the date the court acquires jurisdiction over the person of the accused (Rule 116, Section 1g). If he is not brought to trial within the period specified, he may quash the information on the ground of denial of his right to speedy trial. Failure to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under Section 9, Rule 120. *** Arraignment must be set within 30 days from the date the court acquires jurisdiction over the person of the accused, and within the same period, the court must set the case for pre-trial, and within 30 days from the receipt of the pre-trial order, the trial must be commenced. Sec. 9. Remedy where accused not brought to trial within the time limit Motion to Dismiss in the ground of Denial of Right to Speedy Trial Under the Rules – if the accused is 1) not arraigned within 30 days or

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2) the case was not tried within 30 days from receipt of pre-trial order or 3) for more than 180 days without any decision having been made - Burden of Proving the Motion – Accused; - Burden of Proving Exclusion of Period – Prosecution NOTE: DJ will attach if the motion was granted.(see requisites of DJ) Sec. 11. Order of Trial PROCEDURAL REQUIREMENT (ORDER OF TRIAL): A) PROSECUTION’S EVIDENCE to prove the charge and the civil liability if any. 1. Testimonial Evidence – witnesses for prosecution shall testify in open court Exception: Conditional Examination of the witness by the judge or court trying the case: Requisites: a. Witness is so SICK or INFIRM to appear or LEFT THE PHILIPPINES WITH NO DEFINITE DATE OF RETURNING b. Examination in the presence of accused; c. Reasonable notice given to the accused to attend; d. Conducted in the same manner as an examination at the trial. NOTE:Failure or refusal on the part of accused to attend shall be deemed a waiver and the statement thus taken may be admitted in behalf of or against the accused; 2. Documentary Evidence and Object Evidence shall be presented by the fiscal: B) DEFENSE/ACCUSED’S EVIDENCE – to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. 1. Testimonial Evidence – witnesses for the defense shall testify in open court. If two or more accused jointly charged with an offense, they shall be tried jointly unless motion for separate trial was approved. Exception: Conditional examination or deposition of witnesses to be taken before: a. Any judge or if none b. Any member of the Bar in good standing designated by the judge in the order, or c. Any inferior court designated by a superior court issuing the order. Requisites: 1. Upon motion of the accused with notice to all parties; 2. Necessity for said testimony was established in the motion and shown to the court supported by affidavits and other evidences; 3. Witness is so SICK or INFIRM or RESIDES MORE THAN 100 KILOMETERS FROM THE PLACE OF TRIAL AND HAS NO MEANS to attend the same, or due to other similar circumstances exist; 4. After a court order specifying time and place of examination and served on the fiscal prior to that; 5. Written record of the testimony shall be taken NOTE: Examination shall proceed notwithstanding the absence of fiscal, if it appears that he was duly notified of the hearing. 2. Documentary Evidence and Object Evidence shall be presented by fiscal C) Rebuttal evidence and Sub-rebuttal evidence – and in furtherance of justice permits, additional evidence bearing upon the main issue D) Formal Offer of evidence by the parties – See Notes in Evidence for Discussion of Offer of Evidence E) Submission of case for decision unless the court directs the parties to argue orally or to submit memoranda. *** The order of the trial may be modified, at the discretion of the judge, if the accused admits the act or omission charged in the complaint or information but interposes a lawful defense. *** The order of trial is intended to safeguard the right of the accused to be presumed innocent until the contrary is proved.

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*** The accused has the right to demand from the prosecution the list of prosecution witnesses, but the prosecution may call witnesses other than as listed even when the latter heard the testimonies of other witnesses. Furthermore, the prosecution has the discretion to choose the order of its witnesses. DUE PROCESS *** The prosecution is entitled to due process. This means that it must be allowed to completely present its evidence. *** Pervasive and prejudicial publicity may deprive an accused of his right to a fair trial. To warrant such a finding, however, there must be allegation and proof that the judge has been unduly influenced. *** Judges must not only be impartial, but must also appear impartial. However, this does not mean that the judge must remain passive during the proceedings. It’s the judge’s prerogative and duty to ask clarificatory questions to ferret out the truth. UNDUE INTERFERENCE *** There is undue interference by the judge if he propounds questions to the witnesses which will have the effect of or will tend to build or bolster the case for one of the parties. Section 12. Application for examination of witness for accused before trial. *** Accused may have his witness examined conditionally in his behalf BEFORE trial upon motion with notice to all other parties *** Motion must be supported by affidavit of the accused and such other evidence as the court may require The motion must state: 1. name and residence of witness 2. substance of testimony 3. witness is so sick to afford reasonable ground to believe that he will not be able to attend the trial or resides more that 100 km and has no means to attend the same, or other similar circumstances exist that would make him unavailable or prevent him from attending trial Section 13. Examination of defense witness; how made. DEPOSITION Definition: Deposition is the testimony of a witness taken upon oral questions or written interrogatories, in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. Purpose: The purpose of taking depositions are to: 1) Greater assistance to the parties in ascertaining the truth and checking and preventing perjury 2) Provide an effective means of detecting and exposing false, fraudulent claims and defenses 3) Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with greater difficulty 4) Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements 5) Expedite litigation 6) Prevent delay 7) Simplify and narrow the issues 8) Expedite and facilitate both preparation and trial *** If the court is satisfied that the examination of witness is necessary as provided in SECTION 4, order shall be made and a copy served on the fiscal.

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*** The court shall issue an order directing that the witness for the accused be examined at a specific date, time and place. *** The said order should be served on the prosecutor at least 3 days before the scheduled examination. Who should make the examination? The examination should be taken before a judge or a member of the Bar in good standing so designated by the judge. It may also be made before an inferior court designated in the order of a superior court. WITNESS PROTECTION PROGRAM Requisites for admission into the witness protection program : 1. person has witnessed or has knowledge or information on the commission of a crime 2. has testified or is testifying or about to testify before any judicial or quasi-judicial body or before any investigating authority 3. the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or its equivalent under special laws 4. his testimony can be substantially corroborated in its material points 5. he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying or to testify or evasively because of or on account of his testimony 6. he is not a law enforcement officer, even if he would be testifying against other law enforcement officers. In such case, only immediate members of his family may avail themselves of the protection provided for under the Witness Protection Act Responsibilities of a witness under the protection program: 1. to testify before and provide information to all appropriate law enforcement officials concerning all appropriate proceedings in connection with or arising from the activities involved in the offense charged 2. to avoid the commission of a crime 3. to take all necessary precautions to avoid detection by others of the facts concerning the protection provided him 4. to comply with legal obligations and civil judgments against him 5. to cooperate with respect to all reasonable requests of officers and employees 6. to regularly inform the appropriate program official of his current activities and address. Sec. 14. Bail to Secure the Appearance of Material Witness *** If the court is satisfied upon proof or oath that a material witness will not testify when required, it may order the witness to post bail in such sum as may be deemed proper. If the witness refuses to post bail, the court shall imprison him until he complies or is legally discharged after his testimony has been taken. Sec. 15. Examination of Witness for the Prosecution *** The witness for the prosecution may be conditionally examined by the court where the case is pending if said witness is: 1) Too sick to appear at the trial; or 2) Has to leave the Philippines with no definite date of return. *** Such examination should be in the presence of the accused or in his absence after reasonable notice to attend the examination has been served on him. *** Examination of child witnesses is tackled under the Rule on Examination of a Child Witness which took effect on December 15, 2000. Sec. 16. Trial of several accused (Joint Trial) *** When two or more defendants are jointly charged with any offense, they shall be tried jointly, unless the court in its discretion upon motion of the prosecution or any of the defendants orders a separate trial.

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*** Where the conditions are fulfilled, joint trial is automatic, without need for the trial court to issue an order to that effect. *** The grant of separate trial rests in the sound discretion of the court and is not a matter of right to the accused, especially where it is sought after the presentation of the evidence of the prosecution. In such separate trial, only the accused presenting evidence has to be present. And the evidence to be adduced by each accused should not be considered as evidence against the other accused. *** The granting of a separate trial when two or more defendants are jointly charged with an offense is discretionary with the trial court. Section 17. Discharge of accused to be state witness. Conditions imposed for the discharge of one or more accused to be a state witness, the court must be satisfied of the following: 1) Two or more persons are jointly charged with the commission of an offense 2) The application for discharge is filed by the prosecution before it rests its case 3) absolute necessity for the testimony 4) no other direct evidence available for the prosecution 5) testimony can be substantially corroborated in its material points 6) accused not the most guilty 7) accused has never been convicted of an offense involving moral turpitude *** The prosecutor must first present evidence and sworn statement of the proposed state witness.
*** Absolute certainty is not required as to the necessity of testimony of the accused as this matters will be dependent on the information and suggestions of the fiscal (People vs. CA 124 SCRA 338)

*** The defense should be afforded opportunity to oppose the motion to discharge an accused to be a state witness. *** “Accused not most guilty” Means that he does not appear to have the highest degree of culpability in terms of participation in the commission of the offense and not necessarily in the severity of the penalty imposed.
*** “Not the Most Guilty” means he is the least guilty but not required that he is the least guilty of all accused but only that be not be the most guilty (People vs. Faltado 84 Phil 89)

*** The fact that there was conspiracy does not preclude one from being discharged as a state witness. What the court takes into account is the gravity or nature of acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them.
*** No. of state witness depends on the need of the prosecution but subject to the discretion of the court (People vs. Baesa 104 Phil 136)

COURT ACTION  require prosecution to present evidence  TC should hold in abeyance or defer its resolution on the motion until the prosecution had presented all its evidence.  to determine if the requisites are present *** Any question against the order of the court to discharge an accused to be used as state witness must be raised in the trial court; it cannot be considered on appeal. Where there is, however, a showing of grave abuse of discretion, the order of the trial court may be challenged in a petition for certiorari and prohibition. Rules Relative to the Use of Person Himself If “Particips Criminis” As Government Witness: - When an offense is committed by more than one person, it is the duty of the fiscal to include all of them in the complaint or information; - If the fiscal desires to utilized one of those charged with the offense as a government witness, the fiscal may ask the court to discharge one of them after complying with the conditions prescribed by law;

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*** There is nothing in the rule from which it can be inferred that before a person can be presented as a government witness that he be first included as a co-accused in the information, for the fiscal is free to produce as a witness anyone whom he believes can testify to the truth of the crime charged; and the failure to follow the requirements of the rule relative to the use of a person, himself particips criminis, as a government witness does not violate the due process clause of the constitution, nor render his testimony ineffectual if otherwise competent and admissible. All requisites to be complied with. The discharge of an accused that he may turn state witness is expressly left to the discretion of the court. The court has the exclusive responsibility to see that conditions prescribed by the rules exist.
*** The trial court must see to it that there is absolute necessity for such testimony and not just corroborative or to strengthen evidence of the prosecution (Flores vs. Sandiganbayan 124 SCRA 409)

More than one accused may be discharged. It all depends upon the needs of the fiscal and the discretion of the judge. Any error of the trial judge in this manner cannot have the effect of invalidating the testimony of the discharged codefendants. Effects of Discharge *** Evidence adduced in support of the discharge shall automatically form part of the trial *** If the court denies the motion to discharge the accused as state witness, his sworn statement shall be inadmissible in evidence. *** Discharge of accused operates as an acquittal and bar to further prosecution for the same offense. *** Where an accused has been discharged to be utilized as state witness and he thus testified, the fact that the discharge was erroneous as the conditions for discharge were not complied with did not thereby nullify his being precluded from re-inclusion in the information or from being charged anew for the same offense or for an attempt or frustration thereof, or for crimes necessarily included in or necessarily including those offense. EXCEPTIONS: 1. If the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge 2. Failure to testify refers exclusively to defendant’s will or fault 3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him.
*** If accused fails or refuses to testify against his co-accused in accordance wit his sworn statement constituting the basis for his discharge. DJ will not attach (Rule 119 Sec. 18) > But such refusal must be due to his own will or fault (People vs. Mendiola 82 Phil 740) *** Where an accused’s extrajudicial confession was admitted as State’s evidence on a promise of immunity and he later on reneged and retracted the same, his confession in the participation in the crime is admissible as evidence against him. (People vs. Beberino 79 SCRA 694)

*** An amended information is not a new information but a continuation of the previous one, so that a discharge under the original information is just as binding upon the subsequent amended information. Two types of witness immunity Transactional immunity – witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. Use-And-Derivative-Use-Immunity – witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.

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Section 19. When mistake has been made in charging the proper offense. *** When, at any time before judgment, it becomes manifest that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the said accused shall not be discharged if there appears to be good cause to detain him. *** If there appears to be good cause to detain the accused, the court shall commit the accused and dismiss the original case upon the filing of the proper information.

*** The provision of Section 11 does not refer to any mistake in charging the proper offense. It refers to such a mistake whereby the defendant cannot be convicted of the offense charged, nor of any other offense necessarily included therein. In such case, a new information should be filed charging the accused with the proper offense without discharging him by keeping him in custody or under bail. Sec. 20. Appointment of Acting Prosecutor *** When a prosecutor, his assistant or deputy is disqualified to act, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. Sec. 21. Exclusion of the Public *** The public may be excluded from the courtroom when evidence to be produced is offensive to decency or public morals. Sec. 22. Consolidation of Trials of Related Offenses *** Charges for offenses founded on the same facts or forming part of a series of offenses or similar character may be tried jointly at the court’s discretion. *** The purpose of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigant. *** While consolidation of cases and joint trial of related offenses and the rendition of a consolidated decision are allowed, the court cannot convict an accused of a complex crime constitutive of the various crimes alleged in the consolidated cases. 2000 Amendment Sec. 23. Demurrer to evidence.- The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or certiorari before judgment. (n) ---------------------Definition: Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. *** After the prosecution has rested its case, the accused has 5 DAYS to file a motion for leave of court to file a demurrer to evidence. *** After the prosecution shall have rested its case, the case may be dismissed in any of the following manner: 1) Court on its own initiative can dismiss the case after giving prosecution opportunity to be heard 2) Accused files demurrer with or without leave of court

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*** The present rule allows the accused in a criminal case to present evidence even after a motion is denied provided the demurrer was made with the express consent of the court. The purpose of leave is to determine whether or not the defendant in a criminal case has filed the demurrer merely to stall the proceedings. *** An order denying a demurrer to evidence being interlocutory is not appealable. With or Without Leave of Court With leave – if the motion is denied, he can still present evidence Without leave – if the motion is denied, he loses the right to present evidence and the case will be deemed submitted for decision *** If there are two or more accused and only one of them presents a demurrer to evidence, without leave of court, the trial court may defer resolution thereof until the decision is rendered on the other accused. Sec. 24. Reopening of Case *** At any time before finality of judgment of conviction, judge may, motu proprio or upon motion, with hearing in either case reopen to avoid miscarriage of justice.

RULE 120 JUDGMENT
Section 1. Judgment; definition and form. JUDGMENT - the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability provided for by the law. *** It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceeding, and is regarded as the sentence of the law pronounced by the court on the action or question before it.

Requisites: 1) Written in official language 2) Personally and directly prepared by the judge 3) Signed by him 4) Contains clearly and distinctly a statement of the facts and the law upon which it is based *** A verbal order does not meet the requisites. As such, it can be rescinded without prejudicing the rights of the accused. It has no legal force and effect. *** Article VIII, Section 14, par. 1 of the Constitution requires that the decisions of the court shall contain the facts and the law on which they are based. The rationale is that the losing party is entitled to know why he lost, so he may appeal to a higher court. *** It is not necessary that the judge who tried the case be the same judicial officer to decide it. It is sufficient if he be apprised of the evidence already presented by a reading of the transcript of the testimonies already introduced, in the same manner as appellate courts review evidence on appeal. Section 2. Contents of the judgment. *** Judgment must be in writing in the official language personally and directly prepared and signed by the judge with a concise statement of the fact and the law on which it is based. *** The proper remedy where the judgment was not put in writing: file a petition for mandamus to compel the judge to put in writing the decision of the court. If the judgment is one of CONVICTION, judgment must state: 1. Legal qualification of the offense constituted by the acts committed bythe accused and the aggravating and mitigating circumstances attending its commission 2. Participation of the accused, whether as principal, accomplice or accessory 3. Penalty imposed upon the accused

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4. Civil liability or damages caused by the wrongful act, unless separate civil action has been reserved or waived If the judgment is one of ACQUITTAL, it must make a finding on the civil liability of the accused, unless there is clear showing that the act from which the civil liability might arise did not exist. Acquittal and Dismissal *** Acquittal is a finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case and upon motion of the accused on the ground that the evidence produced fails to show beyond doubt that the accused is guilty. Acquittal vs. Dismissal Acquittal is always based on the merits while in dismissal, there is termination not on the merits and no finding of guilt is made 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 in substance. Dismissal may amount to a acquittal: 1) Here the dismissal is based on a demurrer to evidence 2) Where the dismissal is based on the denial of the right to a speedy trial *** Acquittal of an accused based on reasonable doubt does not bar the offended party from filing a separate civil action based on a quasi-delict. In fact, the court may hold an accused civilly liable even when it acquits him.

PROCEDURAL REQUIREMENTS OF PROMULGATING JUDGMENTS:
1) Written in the official language; 2) Personally and directly prepared by the judge and signed by him; and 3) Contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based. I) IF ACCUSED IS GUILTY: A) CRIMINAL ASPECT: the judgment shall state: (i) Legal qualification of the offense constituted by the acts committed by the accused; (ii) Attendant aggravating or mitigating circumstances, if any; (iii) Participation of the accused in the commission of offense whether as principal, accomplice, or accessory after the fact; (iv) Penalty imposed upon the accused. B) CIVIL ASPECT: Civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party if any, (i) ACTUAL DAMAGES *** Must include life expectance in award of actual damages (People vs. Cordero 263 SCRA 122) and loss of earning capacity (People vs. Morollano 276 SCRA 84) *** Must be supported by receipts (People vs. Cayabyab 274 SCRA 387) *** Must be specified how much and must be separated from moral damages (People vs. Mangila Feb. 15, 2000) *** Must be proven with reasonable degree of certainty, with competent proof of the best evidence obtainable as to actual amount of loss (Sumalpong vs. CA 268 SCRA 764) *** Actual damages shall not be awarded if not supported by evidence (People vs. Manggasin 306 SCRA 228) *** Except in RAPE where indemnity is mandatory without any pleading or proof in the amount of P50,000 (People vs. Padilla January 1999) P75,000 if there is any qualifying circumstances where death penalty is allowed by law (People vs. Perez 296 SCRA 17) (ii) MORAL DAMAGES:
*** award of moral damages must be separate with actual damages and should not be lump into the whole amount (People vs. Castillo 261 SCRA 493)

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(iii) EXEMPLARY DAMAGES:
*** where there are no aggravating circumstances or where it was not specified in the charge, no award of exemplary damages;

(iv) ATTORNEY’S FEES: *** may be recovered only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded (People vs. Teehankee Jr. 249 SCRA 54) II) IF ACCUSED IS NOT GUILTY – A) CRIMINAL ASPECT: State whether evidence of prosecution absolutely failed to prove the guilt or merely failed to prove his guilty beyond reasonable doubt B) CIVIL ASPECT: Determine if the act or omission from which the civil liability might arise did not exist: Civil Liability In Case of Acquittal: 1. Based on reasonable doubt, civil liability may claim in a civil case since preponderance of evidence is only required (People vs. Jalandoni 131 SCRA 454) 2. Findings of the court of civil liability and not criminal liability (People vs. Pantig 97 Phil 748) 3. Findings that civil liability does not arise from the criminal act of which accused was acquitted but need to reimburse fund (Republic vs. Bello 120 SCRA 203) 4) Notice of Promulgation served personally or through bondsmen or to his last known address if trial in absentia: 5) Promulgation of judgment A) Reading the same in the presence of the accused and; 1. Judge of the court in which it was rendered; 2. Clerk of court when judge is absent or outside of province; 3. Executive Judge of RTC of place where he is being detained upon request of judge who rendered it. Exception: Conviction for a light offense, which may be read in the presence of his counsel or representative. B) Recording of the judgment in criminal docket and serving him a copy thereof at his last known address or his counsel if accused failed to appear in promulgation despite notice. C) Effects of Failure to Appear Without Justifiable Cause: 1. LOSE THE REMEDIES AVAILABLE under the Rules like appeal (Pp. vs. Acol, 232 SCRA 406) 2. ARREST ORDER OF ACCUSED WITHIN 15 DAYS from promulgation. D) Effect of Surrender of Accused – within 15 days sumuko siya, he may file a motion with leave of court to avail these remedies stating the reason for his absence which must be proven justifiable, the court may allow him to avail it within 15 days from notice. Entry of Judgment – After a judgment has become final, it shall be entered in accordance with Rule 36. A judgment in a criminal case becomes final, except in death penalty case: FINALITY OF JUDGMENT: a) After the Lapse of the period for perfecting an appeal; b) Total or partial Service of sentence; c) Waiver in writing of right to appeal; d) Application for Probation. VARIATIONS OF JUDGMENT IN CRIMINAL CASE:
1) Offense Charged + Offense Proved = Conviction of Offense Charged; 2) Offense Charged is more serious than Offense Proved which is necessarily included in the latter = Conviction of Offense Proved; 3) Offense Charged is less serious than Offense Proved which includes the latter = Conviction of Only the Offense Charged;

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4) Offense Proved is not included or does not include or is different from Offense Charge = Substitution of Information; 5) Offense Charged in one info. Of two or more offense, proven without objection from the accused = Separate Conviction of Separate Offense.

Section 3. Judgment for two or more offenses. *** A complaint or information must charge only one offense. However, if the accused does not object to the duplicity before he enters his plea, he is deemed to have waived the defect. He may be found guilty for as many offenses as alleged in the complaint or information as may have been duly proved. Section 4. Judgment in case of variance between allegation and proof. *** When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. GENERAL RULE: If the prosecution proves an offense included in the offense charged in the information, the accused may be validly convicted of such offense proved. EXCEPTION: The general rule does not apply where facts supervened after the filing of the information which changes the nature of the offense. Section 5. When an offense includes or is included in another. *** *** An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former constitute the latter. An offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.

2000 Amendment Sec. 6. Promulgation of judgment - The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court. If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; PROVIDED, THAT IF THE DECISION OF THE TRIAL COURT CONVICTING THE ACCUSED CHANGED THE NATURE OF THE OFFENSE FROM NON-BAILABLE TO BAILABLE, THE APPLICATION FOR BAIL CAN ONLY BE FILED AND RESOLVED BY THE APPELLATE COURT. The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. IF THE ACCUSED WAS TRIED IN ABSENTIA BECAUSE HE JUMPED BAIL OR ESCAPED FROM PRISON, THE NOTICE TO HIM SHALL BE SERVED AT HIS LAST KNOWN ADDRESS. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and SERVING HIM A COPY THEREOF AT HIS LAST KNOWN ADDRESS OR THRU HIS COUNSEL. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, HE SHALL LOSE THE REMEDIES AVAILABLE IN THESE RULES AGAINST THE JUDGMENT AND THE COURT SHALL ORDER HIS ARREST. WITHIN FIFTEEN (15) DAYS FROM PROMULGATION OF JUDGMENT, HOWEVER, THE ACCUSED MAY SURRENDER AND FILE A MOTION FOR LEAVE OF COURT TO AVAIL OF THESE REMEDIES. HE SHALL STATE THE REASONS FOR HIS ABSENCE AT THE SCHEDULED PROMULGATION AND IF HE PROVES THAT HIS ABSENCE WAS

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FOR A JUSTIFIABLE CAUSE, HE SHALL BE ALLOWED TO AVAIL OF SAID REMEDIES WITHIN FIFTEEN (15) FROM NOTICE. (6a) __________ *** Judgment does not become effective until it is promulgated. And where the judgment is modified, the modified sentence does not become a sentence in law until the same has been read or announced to the defendants or has become a part of the record of the court. PROMULGATION OF JUDGMENT - official proclamation or announcement of judgment. It consists of reading the judgment or sentence in the presence of the accused and any judge of the court rendering the judgment. GENERAL RULE: Promulgation should be made in the presence of the accused and the judge of the court who rendered the decision. EXCEPTION TO THE MANDATORY PRESENCE OF THE ACCUSED: - Where the conviction is for a light offense, in which case the accused may appear through counsel or representative *** When the judge is absent or outside of the province or city, the judgment may be promulgated by the clerk of court. *** It is the filing of the decision or judgment with the clerk of court which gives it validity and binding effect. *** To be valid, the judgment must be signed and promulgated during the incumbency of the judge who signed the same. However, it is not necessary that the judge who prepares and signs the decision be the one who heard the case.
*** The judge who penned the decision need not be the one who heard the case. > Judge can rely on the TSN taken during the trial

*** A judgment promulgated at a time when the judge who rendered and signed it had ceased to hold office is null and void.
*** Judgment must be signed and promulgated by the judge during his incumbency (People vs. CA 99 Phil 766) > Thus, a judgment rendered by the judge after disapproval of his appointment by CA is null and void (People vs. Tolentino 1983) > But if such judgment was rendered before he was officially notified of the disapproval is valid, he is considered a de facto officer (Regala vs. CFI of Bataan 77 Phil 684)

*** The proper clerk of court shall give notice to accused personally or through his bondsman or warden and counsel requiring him to be present at the promulgation if he fails to appear at the promulgation shall consist of recording of the judgment in the docket and a copy thereof shall be served upon the accused and his counsel. *** If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention upon request of the court that rendered the judgment. *** The judgment or sentence, which must be promulgated in the presence of the defendant, is sentenced rendered by the RTC after the trial of the case by the said court. What is required of judgment of the appellate court is that certified copies of the same must be sent by the clerk of appellate court to the lower court not for promulgation or reading thereof to the defendant, but for execution of the judgment against him. the the the the

*** Where the accused fails to appear without justifiable cause, despite due notice to him, his bondsmen or counsel, he is considered to have waived his right to appeal. However, if within fifteenday period of appeal, he voluntarily surrenders to the court or is otherwise arrested, then he may avail of the right to appeal within said period of appeal.
*** In a judgment of acquittal, the judge cannot impose reprimand because it is a penalty i.e. public censure (People vs. Abellera 69 Phil 623) *** Penalty in judgment cannot be conditional or alternative (People vs. Licerio and People vs. Chong Ting)

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Section 7. Modification of judgment. *** Upon motion of the accused, a judgment of conviction may be modified or set aside by the court before it has become final or before an appeal has been perfected. *** The prosecutor cannot ask for the modification or setting aside of a judgment of conviction because the rules clearly provide that a judgment of conviction may be modified or set aside by the court rendering upon motion of the accused. GENERAL RULE: A judgment becomes final: 1) after the lapse of the period for perfecting an appeal; or 2) when the sentence has been partially or totally satisfied or served; or 3) when the accused has waived in writing his right to appeal; or 4) accused has applied for probation. EXCEPTION: When the Death Penalty is imposed by the trial court, the SC automatically reviews the decision. Sec. 8. Entry of judgment
*** ERRONEOUS ACQUITTAL remains a valid judgment > DJ applies

Section 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule. Youthful offender - A child, minor or youth, including one who is emancipated in accordance with law, who is over nine years but under eighteen years of age at the time of the commission of the offense. Instances when suspension of sentence shall not apply to youthful offender: 1. has previously enjoyed suspension of sentence 2. if convicted of an offense punishable by death or life imprisonment. Probation - it is a 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. Probationer - refers to the person placed on probation. Probation Officer - refers to one who investigates for the court a referral for a probation or supervises a probationer or both. *** Application for probation must be made within the period for perfecting an appeal *** An order granting or denying probation IS NOT APPEALABLE
Period to file  after conviction and within the period for perfecting an appeal  probation is a mere privilege and is revocable before final discharge of the probationer by the court

Mandatory provisions of the probation order: 1. present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order 2. report to the probation officer at least once a month at such time and place as specified by said officer.

Effectivity of Probation Order - 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 prescribed in the said order or his commission of another offense, he shall serve the penalty imposed for the offense under which he was placed on probation.

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Effect on Civil Liability - Probation affects only the criminal aspect of the case; it does not follow that the civil liability of the offender is extinguished. Modification of conditions on probation - During the period of probation, the court - may, upon the application of either the probationer or the probation officer, revise or modify the conditions or period of probation. The court shall inform in writing the probation officer and the probationer of any change in the period or conditions of probation. *** Probation is a mere privilege and is revocable before final discharge of the probationer by the court. Role of the Probation Officer Without the report of the probation officer, the trial court could not issue the order of final discharge of the probationer. It is the order of final discharge which would restore the probationer’s suspended civil rights. In the absence of the order of final discharge, the probation would still subsist, unless otherwise revoked for cause. PAROLE - refers to 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 a condition of his release Factors for consideration in executive clemency 1. age of the petitioner 2. gravity of the offense 3. manner in which it was committed 4. institutional behavior or conduct of the accused 5. previous criminal record if any Special factors for consideration in granting parole: 1. old age, provided the prisoner was not yet 60 years of age at the time of the commission of the offense 2. physical disability such as when the prisoner is bed-ridden, a deal-mute, a leper, a cripple or is blind, provided the prisoner was not suffering from such disability at the time of the commission of the offense 3. serious illness duly certified by a government physician 4. similar circumstances which show that continued imprisonment will be inhuman or will pose grave danger to the life of the prisoner 5. evidence that the subject will be legitimately employed at release 6. a showing that the subject has a place where he can establish residence 7. availability of after-care service for a prisoner who is old, seriously ill or suffering from physical disability

RULE 121 NEW TRIAL OR RECONSIDERATION
Section 1. New trial or reconsideration. NEW TRIAL - the rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken Filing of New Trial or Reconsideration 1) Filed by the accused. 2) Before final judgment of conviction or during appeal. Cases when the trial court loses jurisdiction over its sentence even before the lapse of 15 days: 1. When the defendant voluntarily submits to the execution of the sentence 2. When the defendant perfects his appeal. The moment the appeal is perfected the court a quo loses jurisdiction over it, except for the purpose of correcting clerical errors.

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Section 2. Grounds for new trial. Grounds for a new trial in criminal cases: 1. errors of law or irregularities committed during the trial prejudicial to the substantial rights of the accused 2. new and material evidence discovered:
OTHER GROUNDS: 1. Retraction of a Witness – may be a ground for new trial as held in People vs. Curiano 9 SCRA 323; 2. Negligence or incompetency of counsel or mistake which is gross amounting to deprivation of the substantial rights of the accused and due process; 3. Improvident plea of guilty which may be withdrawn; 4. Disqualification of an attorney de officio to represent accused in trial as held in Jose vs. CA 70 SCRA 257

*** Although the Rules of Court enumerates only the above two as the grounds for new trial, the case of Navarra vs. CA states that if the negligence or mistake of counsel is so gross as to deprive the client of his right to due process of law, the accused may be entitled to a new trial. “During the trial” - refers to every stage of the trial from arraignment to judgment Errors of law or irregularities prejudicial to the substantial rights of the accused 1) errors of law or irregularities committed during trial 2) errors/irregularities are prejudicial to the substantial rights of the accused The following are not considered as irregularities: a. Loss of records (remedy is reconstitution of missing evidence) b. Loss of stenographic notes (remedy is reconstruction of the testimony of the witness) Requisites before a new trial may be granted on the ground of newly discovered evidence: 1. that the evidence was discovered after trial 2. that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence 3. that it is material not merely cumulative, corroborative or impeaching 4. the evidence is of such a weight that it would probably change the judgment if admitted The following are not considered as newly discovered evidence: a. Affidavit of desistance/recantation. b. Proposed testimonies of witnesses. c. Merely forgotten evidence.
*** “Newly discovered evidence” is not sufficient to grant new trial if only an Impeaching evidence, Corroborative evidence, Fabricated, Improbable or Unreliable Recantations ICFIUR: *** Order granting new trial is interlocutory but controllable by SCA of certiorari or prohibition at the instance of prosecution because accused may be acquitted from which the former cannot appeal (People vs. Bocar 1979)

NEW TRIAL VS. REOPENING OF TRIAL: NEW TRIAL 1) Made after judgment is rendered 2) On the basis of errors of law or irregularities in the trial or on newly discovered evidence. 3) At the instance of the accused or the court with latter consent 4) Not available to the prosecution because DJ will attach. Section 3. Grounds for reconsideration.

REOPENING OF TRIAL 1) Made before finality 2) On the basis of avoidance miscarriage of justice.

of

3) At the instance of either party or the court even without the consent of the accused. 4)Both available to the accused and prosecution and DJ will not attach.

Grounds of motion for reconsideration 1. errors of law 2. errors of fact in the judgment, which require no further proceedings

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Section 4. Form of motion and notice to the prosecutor. Requisites for a motion for new trial or reconsideration: → The motion for a new trial or reconsideration shall be: 1. in writing 2. filed with the court 3. State grounds on which it is based 4. If the motion for new trial is based on a newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is expected to be given, or duly authenticated copies of documents which it is proposed to introduce in evidence. 5. Notice of the motion for new trial or reconsideration shall be given to the fiscal
*** Pro-forma rule in motion for reconsideration does not apply in criminal cases (People vs. Colmenares)

Section 5. Hearing on motion. *** Where a motion for a new trial calls for the decision of any question of fact the court may hear evidence of such motion by affidavits or otherwise Section 6. Effects of granting a new trial or reconsideration. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION 1) Original judgment shall be set aside and a new judgment rendered accordingly 2) When a new trial is granted on the ground of errors of law or irregularities during trial: a. Unaffected proceedings and evidence by the commission of such errors and irregularities shall stand, but those affected thereby shall be set aside and taken anew; b. The court may allow the introduction of additional evidence in the interest of justice. 3) When the new trial is granted on the ground of newly discovered evidence: a. Evidence already taken shall stand, and b. Newly discovered evidence allow to be introduced and shall be taken and considered together with the evidence already in the record. c. Allow presentation of such other evidence as the court may, in the interest of justice - The effect of the granting of a new trial is not to acquit the accused of the crime of which the judgment finds him guilty, but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been taken before, for the purpose of rendering a judgment in accordance with the law, taking into consideration the evidence to be presented during the second trial. Erroneous Acquittal; Double Jeopardy Applies The case of People vs. Hernando states that erroneous acquittal of the accused remains as the final verdict. Errors or irregularities, which do not render the proceedings a nullity, will not defeat a plea of antrefois acquit.

RULE 122 APPEAL
APPEAL - a proceeding for review by which the whole case is transferred to the higher court for a final determination *** Appeal is not an inherent right of convicted person. The right of appeal is and always has been statutory.

Effect of an appeal: - An appeal in a criminal case opens the whole case for review and this includes the review of the penalty, indemnity, and the damages involved. Consequently, on appeal, the appellate court may increase the penalty, indemnity, or the damages awarded by the trial court, although the offended party had not appealed from said award, and the party who sought a review of the decision was the accused.

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Section1. Who may appeal. *** Any party may appeal from a final judgment or order, except if the accused would be placed thereby in double jeopardy *** The Supreme Court has established the invariable ruling that the prosecution cannot appeal from a judgment wherein the accused is acquitted for the reason that he is exposed for the second time to the danger of being punished for the same offense. Nor does certiorari lie to restore a criminal case, which has been terminated by the acquittal of the accused. An appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if: *** The dismissal is made upon motion, or with the express consent of the defendant, and the dismissal is not an acquittal or based upon consideration of the evidence or merits of the case and the question to be passed upon the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant. *** Every criminal case involves two actions, one criminal and another civil. From a judgment convicting the accused, two appeals may accordingly be taken. The accused may seek a review of said judgment, as regards both actions. Similarly, the complainant may appeal with respect only to the civil action, either because the lower court has refused or failed to award damages, or because the award made is unsatisfactory to him. The right of either to appeal or not to appeal, in the event of conviction of the accused, is not dependent upon the other. *** A private prosecutor in a criminal case has no authority to act for the People of the Philippines before a court on appeal. It is the government’s counsel, the Solicitor General, who appears in criminal cases or their incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General. Right to Appeal the Civil Award - The civil award in a criminal case may be appealed by the private prosecutor on behalf of the offended party or his successors. The adequacy of the award may be challenge on the ground that is not commensurate with the gravity of the injuries sustained as a result of the offense committed by the accused. *** The accused may not, on appeal by the adverse party, be convicted of a more serious offense or sentenced to a higher penalty to justify the increase in the civil indemnity. Accused Appellant *** An accused-appellant may change his theory on appeal; thus the case opens the whole action for review on any questioning including those not raised by the parties. *** When the accused appeals a judgment of conviction, he waives the constitutional safeguard against double jeopardy; but every circumstance in favor of the accused should be considered. *** Upon the death of an accused pending appeal from his conviction, the criminal action is extinguished, and the civil aspect instituted therewith for recovery of civil liability ex delicto is ipso facto extinguished. The other party may just file a separate civil case against the estate of the accused who died. Effect of appeal on the bail of the accused: *** When accused is charged with offense which under the existing law at the time of its commission and time of application for bail is punishable by a PENALTY LOWER THAN RECLUSION PERPETUA and is out on bail, and after trial is convicted by the trial court of the offense charges or of a lesser offenses than that charged in the complaint or information, he is allowed to remain free on his original bail pending the resolution of appeal – unless the proper court directs otherwise *** When accused is charged with CAPITAL OFFENSE or which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on

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bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or info – same rule set forth in the preceding paragraph shall be applied; *** When accused is charged with CAPITAL OFFENSE of an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, -- bond is cancelled and accused shall be placed in confinement pending resolution of his appeal Section 3. How appeal taken. OUTLINE OF APPEAL IN CRIMINAL CASE: FROM DECISION TO APPEAL MTC Summary RTC Procedure (6mos. Or 1000 fine) Original Jurisdiction RTC MODE OF APPEAL Notice on Appeal TIME Within 15 days from notice Within 15 days from notice Within 15 days from notice Within 15 days from notice

Notice on Appeal

RTC & FAMILY COURT Original Jurisdiction Punishable by a CA or the Notice on Appeal lesser penalty Sandiganbayan if proper Punishable by life CA or the Notice on appeal imprisonment or Sandiganbayan if reclusion perpetua proper or lesser penalty for offenses committed Also to SC on the same occasion. Punishable by death SC Automatic review Appellate Jurisdiction CA Appellate Jurisdiction CA SC Petition for Review Rule 42

Within 5 days of the 15th day of promulg. Within 15 days from notice

Petition for review Within 30 days from on certiorari in Rule notice 45

SANDIGANBAYAN Original and SC Petition for review Within 30 days from Appellate on certiorari notice Jurisdiction SC No appeal only motion for recon. For the 1st time How appeal is taken: 1. Appeal to the Regional Trial Court: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party 2. Appeal to the Court of Appeals from decision of the Regional Trial Court in the exercise of its original jurisdiction: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party 3. Appeal to the Court of Appeals in cases decided by Regional Trial Court in the exercise of its appellate jurisdiction: by petition for review 4. Appeal to the Supreme Court in cases where penalty imposed is life imprisonment or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party

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5. Death penalty: automatic review by the Supreme Court 6. Other appeals to the Supreme Court: by petition for review on certiorari *** A direct appeal to the SC on questions of law and facts(QLF) in criminal cases in which penalty imposed is not death or life imprisonment PRECLUDES the review of the facts  QLF come within the jurisdiction of the CA *** When the criminal case is appealed to the SC, the whole case is then thrown open for review > It becomes the duty of the SC to correct errors found in the judgment appealed from > SC may correct errors whether they are made the subject of assignments of error or not *** Although the civil action is suspended until final judgment in the criminal case, the court is not deprived of its authority to issue preliminary and auxiliary writs which do not go into the merits of the case *** PUBLIC PROSECUTOR has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party. Section 4. Publication of notice of appeal. *** If personal service of the copy of the notice of appeal cannot be made upon the adverse party or his counsel, SERVICE MAY NE MADE BY REGISTERED MAIL or SUBSTITUTED SERVICE: *** Service by publication is made in a newspaper of general circulation in the vicinity once a week for a period not exceeding 30 days. Section 5. Notice waived. *** The appellee may waive his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. Section 6. When appeal to be taken. *** Appeal is taken within 15 days from promulgation of the judgment. This period shall be suspended from the time a motion for new trial or reconsideration is filed until notice of overruling the motion has been served upon the accused at which time the balance of the period begins to run. Section 10. Transmission of records in case of death penalty. *** In case of death penalty, the records shall be forwarded to the Supreme Court for automatic review and judgment, within 20 days but not earlier than 15 days after the promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within 10 days after the filing thereof by the stenographic reporter. *** The 20 days within which the records of a case involving a death sentence should be forwarded to the Supreme Court is not rigid or absolute, much less jurisdictional. It is intended for a case wherein the accused sentenced to death says nothing and does nothing within the period of 15 days within which case remains within the jurisdiction on the trial court. Sec. 11. Effect of appeal by any of several accused *** An appeal taken by one or more of several accused shall not affect those who did not appeal, except if the judgment is favorable and applicable to the latter. *** The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment. *** Upon perfection of the appeal, the execution of the judgment appealed from shall be stayed as to the appealing party.

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Section 12. Withdrawal of appeal.
Q: When can you withdraw an appeal? A: It depends. 1) If records of the case not yet forwarded to appellate court (RTC), withdrawal of appeal in MTC is allowed and judgment shall become final. 2) If records of the case was already forwarded to the appellate court (RTC), withdrawal of appeal in RTC in its discretion is allowed upon motion filed before judgment of the case on appeal, and judgment shall become final and remanded to MTC for execution.

*** An appellant may withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court as provided by Section 8, in which case the judgment shall become final. Section 13. Appointment of counsel de oficio for accused on appeal. Duties of the clerk of the trial court to the appellant who is confined in prison upon the presentation of notice of appeal: 1. he shall ascertain from the appellant, whether he desires the Court of Appeals or the Supreme Court to appoint an attorney to defend him de oficio 2. he shall transmit with the record, upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with this duty of the response of the appellant to his inquiry APPOINTMENT OF COUNSEL DE OFFICIO ON APPEAL: 1. Accused is confined in prison; 2. Without counsel de parte on appeal; 3. Signed the notice of appeal by himself; 4. Request for appointment of such counsel in the appellate court within 10 days from receipt of the notice to file brief; 5. Right thereto is established by affidavit. ACTIONS OF APPELLATE COURT: 1) DISMISSAL OF APPEAL ; on the ground of: a) Abandonment – If the appellant 1. escapes from prison or confinement or 2. jumps bail or 3. flees to a foreign country during the pendency of the appeal. b) Failure to prosecute by failure to file his brief within the time prescribed except if represented by counsel de officio 2) REVERSAL OR MODIFICATION: General Rule: Judgment not to be reversed or modified except for substantial error injuriously affected the substantial rights of the appellant. a) Increase or reduce the penalty imposed by the trial court or; b) Certify and elevate it to SC or by imposing the proper penalty where they are of the opinion that the penalty of reclusion perpetua or higher should be imposed in a case. c) Remand the case to the RTC for new trial or retrial on the ground of newly discovered evidence only. d) Try the case and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases 1. Falling within its original jurisdiction, 2. Involving claims for damages arising from provisional remedies, or 3. New trial based only on the ground of newly discovered evidence 4. In SC, in cases of automatic review of death penalty e) IN SC ONLY, when SC en banc is equally divided in opinion or the necessary majority cannot be had, the case shall be reheard, and if in rehearing no decision is reached, the judgment of conviction of the lower court shall be reversed and the accused acquitted except death. f) Provisional Remedies in Criminal cases like in civil actions may likewise be availed of in connection with the civil action deemed instituted with the criminal action, insofar as they are applicable.

RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS
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Section 1. Uniform Procedure. Procedure to be observed in Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts GENERAL RULE : The procedure in the Regional Trial Court shall be applicable to the procedure in Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Court. EXCEPTIONS : 1) Particular provision is made applicable only to such courts 2) In cases governed by the Rule on Summary Procedure A) - criminal case where the penalty prescribed does not exceed 6 months imprisonment or a fine of P1,000 or both B) - complaint or information filed directly in court without need of a prior preliminary investigation or preliminary examination C) - case decided based on affidavits submitted by the parties

RULE 124 PROCEDURE IN THE COURT OF APPEALS
Court of Appeals *** The Court of Appeals has no jurisdiction without judgment of conviction. *** The Court of Appeals shall give precedence in the disposition of appeals of accused who are under detention. It shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. *** Judgment of the lower courts shall be reversed or modified only when the Court of Appeals is of the opinion that error was committed which injuriously affected the substantial rights of the appellant after it examined the record and evidence adduced by the parties. *** Although not often done in the judicial system, the case of People vs. Calayca states that the appellate court may reverse the trial court’s decision on the basis of grounds other than those that the parties raised as errors. Power of the Court of Appeals *** The Court of Appeals may 1) reverse, affirm, or modify the judgment;2) increase or reduce the penalty imposed;3) remand the case for new trial or re-trial; or 5) dismiss the case. - It is discretionary on its part whether or not to set a case for oral argument. ***It shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases: 1) falling within its original jurisdiction 2) involving claims for damages arising from provisional remedies, or 3) where the court grants a new trial based only on the ground of newly discovered evidence. Quorum and Voting of the Court of Appeals *** Three Justices constitute a quorum for the sessions of a division *** Unanimous vote of the 3 Justices of a division shall be necessary to pronounce a judgment or a final resolution. In the event that there is no unanimous vote, the Presiding Justice shall direct the raffle committee of the Court to designate two additional Justices in the division hearing the case and the concurrence of a majority of such division shall be necessary for the pronouncement pf a judgment or final order. *** Should the Court of Appeals impose the penalty of death, reclusion perpetua, or life imprisonment after discussing the evidence and law involved, the case is certified and immediately elevated to the Supreme Court for review.

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Section 2. Appointment of counsel de oficio for the accused. *** A counsel de officio is a court appointed lawyer to the accused. Requisites before an accused can be given a counsel de oficio on appeal: 1. that he is confined in prison 2. without counsel de parte on appeal 3. signed the notice of appeal himself Exceptions to the requisites →An accused-appellant not confined to prison can have a counsel de oficio if requested by him in the appellate court within 10 days from receipt of the notice to file brief and the right thereto is established by affidavit Section 3. When brief for the appellant to be filed. BRIEF - literally means a short or condensed statement. The purpose of the brief is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion. Section 7. Contents of briefs. *** Unlike the procedure in civil cases, it has been held that it is not essential for the accused to make assignment of errors in his brief, as on appeal, the whole record of the case is submitted to and reviewable by the appellate court. *** Issues which were never raised in the proceedings before the trial court cannot be considered and passed upon on appeal. Section 8. Dismissal of appeal for abandonment or failure to prosecute. Requirement a. upon motion of the appellee or motu propio b. with notice to the appellant Grounds a. Appellant fails to file his brief within the time prescribed, except when he is represented by a counsel de oficio. b. Appellant escapes from prison or confinement, jumps bail, or flees to a foreign country during pendency of the appeal. Effect - Appealed judgment becomes final. *** The Court of Appeals may dismiss motu propio or on motion by appellee an appeal for failure on the part of the appellant to file his brief on time, but it must have a notice served upon the appellant of the action to be taken by said court before dismissing motu propio the appeal. Effect of Escape of Accused; Abandonment of Appeals - If the convict escapes from prison or confinement or refuses to surrender to the proper authorities, jumps bail or flees to a foreign country he is deemed to have abandoned his appeal and the judgment of the court below becomes final. Section 9. Prompt disposition of cases. *** It is discretionary for the appellate court whether to order a hearing of the case before it or decide the appeal solely on the evidence submitted to the trial court. \*** If the Court of Appeals chooses not to hear the case, the Justices composing the division may just deliberate on the case, evaluate the recorded evidence on hand and then decide it. Section 10. Judgment not to be reversed or modified except for substantial error. *** The reversal of judgments entered in the court below is prohibited, except for prejudicial error – that which tends to prejudice a substantial right of a party to the proceedings.

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*** When the entry of judgment of the Court of Appeals is issued, a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of court from which the appeal was taken. Section 12. Power to receive evidence. Other powers of the Court of Appeals Aside from these powers, the rule empowers the Court of Appeals: 1. to try cases and conduct hearings 2. receive evidence 3. perform any and all acts necessary to resolve factual issues raised in cases a) falling under its original jurisdiction b) involving claim for damages arising from provisional remedies c) wherein new trial is granted on the ground of newly discovered evidence Section 13. Quorum of the court. *** If the Court of Appeals imposes a penalty of reclusion perpetua or higher, it shall render judgment imposing the penalty of reclusion perpetua or higher as the circumstances warrant but shall refrain from entering judgment and instead certify the case and elevate the entire record to the Supreme Court for review. Purpose of the preceding rule - This will obviate unnecessary, pointless and time-wasting shuttling of criminal cases between the Supreme Court and the Court of Appeals for, by then, the Supreme Court will acquire jurisdiction over the case from the very inception and can, without bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do justice in the case Section 14. Motion for new trial. - Motion for new trial based on Newly Discovered Evidence may be filed at any time after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting the accused becomes final. Section 16. Rehearing or reconsideration. *** A motion for reconsideration shall be made within 15 days after notice of the decision or final order of the Court of Appeals. *** A re-hearing is not a matter of right but a privilege to be granted or not, according as the court sees fit, the matter being solely within its discretion. *** New questions cannot be presented for the first time on a motion for rehearing, especially where they are inconsistent with positions taken on the original hearing, or waived on the original submission of the case. *** A second motion for rehearing or reconsideration of a final judgment or order is not allowed because if parties are allowed to file as many motions for rehearing or reconsideration as their discretion or caprice suits, the proceedings would become undeterminable and unnecessarily voluminous *** The mittimus shall be stayed during the pendency of the motion for rehearing or reconsideration MITTIMUS - A process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in accordance with the terms of the judgment. *** It is the final process of carrying into effect the decision of the appellate court and the transmittal thereof to the court of origin is predicated upon the finality of the judgment *** A motion for reconsideration of its judgment or final resolution shall be resolved by the Court of Appeals within 90 days from the time it is submitted for resolution, and no 2nd motion for reconsideration for the same party shall be entertained. 2000 Amendment

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Sec. 18. Application of certain rules in civil to criminal cases. – The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and appealed civil cases shall be applied to criminal cases, insofar ass they are applicable and not inconsistent with the provisions of this Rule. -----------------------------*** The corresponding amendment was made pursuant to the changes introduced under the 1997 Rules of Procedure. *** Rule 47 (Annulment of Judgments of Final Judgment and Resolutions) DOES NOT APPLY TO CRIMINAL CASES. The appropriate remedy for lack of jurisdiction or extrinsic fraud is CERTIORARI (Rule 65) or HABEAS CORPUS (Rule 102).

RULE 125 PROCEDURE IN THE SUPREME COURT
Section 1. Uniform Procedure. *** Procedure in the SC in appealed cases is the same as in the CA, unless otherwise provided by the Constitution or law A case may reach the SC for final adjudication in the following manner: 1) Automatic review - In all cases where death penalty is imposed by the trial court - Records shall be forwarded to the SC for automatic review and judgment 2) Ordinary appeal a. Where penalty imposed is life imprisonment b. Applicable also where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed In both cases, case is directly appealable to the SC by filing a notice of appeal 3) Petition for review on certiorari GENERAL RULE: judgments of RTCs may be appealed to the SC only by petition for review on certiorari in accordance with Rule 45 of the Rules of Court EXCEPTION: perpetua Criminal cases where penalty imposed is life imprisonment or reclusion

Effect of direct appeal to the Supreme Court on question of law in criminal cases → A direct appeal to the Supreme Court on questions of law – in criminal cases in which the penalty imposed is not death or life imprisonment – precludes a review of the facts. - Cases involving both questions of law and fact come within the jurisdiction of the Court of Appeals. - APPEALS TO THE SUPREME COURT NOT A MATTER OF RIGHT; but a matter of sound judicial discretion on the part of the Supreme Court. The prescribed mode of appeal is by certiorari. The findings of fact of the appellate court are conclusive on the Supreme Court. - When certain material facts and circumstances had been overlooked which if taken into account, would after the result in that they would introduce an element of reasonable doubt which would entitle the accused to acquittal. Section 2. Review of decisions of the Court of Appeals. * When a criminal case is appealed to the SC, the whole case is then thrown open for review 1) It becomes the duty of the SC to correct errors found in the judgment appealed from 2) SC may correct errors whether they are made the subject of assignments or error or not

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Exceptions to the rule that finds of fact of the Court of Appeals is conclusive upon the Supreme Court: 1. when the conclusion is a finding grounded entirely on speculation, surmises or conjectures 2. when the inference made is manifestly absurd, mistaken or impossible 3. when there is grave abuse of discretion in the appreciation of facts 4. when the judgment is premised on a misapprehension of facts 5. when the findings of fact are conflicting 6. when the Court of Appeals in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee 7. when certain material facts and circumstances had been overlooked which, if taken into account would after the result as it would give rise to reasonable doubt to acquit the accused. Question of law - when the doubt or difference arises as to what the law is on a certain state of facts. It must not involve an examination of the probative value of the evidence presented by the litigants or any of them. Question of fact - when the doubt or difference arises as to the truth or the falsehood of alleged facts Section 3. Decision if opinion is equally divided. *** A criminal case shall be reheard by the Supreme Court when the Court en banc is equally divided in opinion or the necessary majority cannot be had, if no decision is reached the conviction of the lower court shall be reversed and the accused acquitted. *** If division of opinion or lack of required votes refers to the propriety of imposing the death penalty, the penalty next lower in degree shall be imposed *** According to the Constitution, only the Supreme Court en banc may modify or reverse a doctrine or principle of law or ruling laid down by the Court in a decision rendered en banc or in division. When, in criminal cases pending appeal before the SC, accused is still on provisional liberty, the ff. rules are laid down: 1) Court shall order the bondsman to surrender the accused within 10 days from notice, to the court of origin. Bondsman shall inform this court of fact of surrender. Then the court shall cancel the bond; 2) RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the PNP as the accused shall remain under confinement pending resolution of his appeal; 3) If accused – appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this court. 4) Appeal taken by the accused shall also be dismissed under Sec. 8 Rule 124 of Rules of Court as he shall be deemed to have jumped his bail

RULE 126 SEARCH AND SEIZURE
Elements of search warrant: 1. order in writing 2. signed by the judge in the name of the People of the Philippines 3. commanding a peace officer to search personal property 4. bring the property before the court NATURE OF SEARCH WARRANTS - Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions. Search warrants have no relation to civil process or trials and are not available to individuals in the course of civil proceedings, nor for the maintenance of any mere private right
*** It is INTERLOCUTORY in character – it leaves something more to be done, the determination of the guilt of the accused

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Object of a search warrant – to obtain the goods, and bring the person in whose custody they are found, either to be recognized as a witness or to be subject to such further proceedings as the ends of justice may require A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued *** Otherwise, it is VOID *** The proceedings upon search warrants must be absolutely legal *** It will always be construed strictly without going the full length of requiring technical accuracy. *** No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. SEARCH vs. SEIZURE *** The term search as applied to searches and seizures is an examination of a man’s house or other buildings or premises or of his person with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged *** A seizure is the physical taking of a thing into custody GENERAL WARRANT → A process which authorizes the search and seizure of things, in a general manner, without specifying or describing them with particularity, like the equipment, paraphernalia, communications, records, publications, documents, instruments, items, supplies, and other evidence in connection with the violation of an offense.
*** This does not specify or describe with particularity the things searched and seized *** This kind of warrant is constitutionally objectionable – therefore VOID

WARRANT OF ARREST 1. order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense. 2. does not become stale 3. may be served on any day and at any time of day or night. (sec. 6, rule 113).

SEARCH WARRANT 1. order in writing in the name of the RP signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court. (sec. 1) 2. validity is for 10 days only (sec. 9) 3. to be served only in daytime unless the affidavit alleges that the property is on the person or in the place to be searched. (sec. 8)

4. upon probable cause to be determined personally by the judge after examination in writing and under oath in the form of searching answers and questions. 5. only issued if there is a necessity of placing accused under immediate custody 5. sworn statements and affidavits of complainant and witnesses must be submitted to court.

*** A good and practical rule of thumb to measure the nearness of time given in the affidavit as to the date of the alleged offense, and the time of making the affidavit – The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause

2000 Amendment Sec. 2. Court where application for search warrant shall be filed. – An application for search warrant shall be filed with the following: (a) Any court within whose territorial jurisdiction a crime was committed.

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(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is p pending. (n) ---------------------*** An application for a search warrant may be filed with another court only under extreme and compelling circumstances, that the applicant must prove to the satisfaction of the latter court which may or may not give due course to the application depending on the validity of the justification offered for not filing the same in the court with primary jurisdiction. The amendment modifies the foregoing guidelines. a. Under the foregoing amendment, a search warrant may not be applied for and issued by any judge but only by the judge within whose territorial jurisdiction a crime was committed or; b. Where the place of commission of the crime is not known, the application may be filed before any court which has territorial jurisdiction over the place where the search warrant shall be enforced. In either case, there is a nexus between the Court issuing the search warrant and the place to be searched; c. But even where the place of commission of the crime is known, the application may nevertheless be filed, for compelling reasons which shall be shown, before any court within the judicial region where the crime was committed. d. Where, however a criminal action has already been filed, the search warrant shall only be applied for in the court where such action is pending. This is in conformity that where the court acquires jurisdiction, over a particular case, it does so to the exclusion of all other courts including the issuance of ancillary writs and processes; e. As to the range of enforceability, the search warrant may be enforced anywhere in the Philippines, for as long as it is the place described in the search warrant. Thus, in Section 3 (now Section 4) of Rule 126 was amended by providing that the search warrant specifying the particular place to be searched, the place may be anywhere in the Philippines. The amendment modifies the Malalaon guidelines which allows any judge to issue a search warrant prior to the filing of a criminal action, and even if one had already been filed, any judge for compelling reasons may still issue a search warrant. (a) All other processes, whether issued by a regional trial court or a metropolitan trial court, municipal trial court or municipal circuit trial court may be served anywhere in the Philippines, and, in the last three cases, without a certification by the judge of the regional trial court.” (Italics ours.) The foregoing amendment is subject to the Rule-making authority of the Supreme Court to issue circulars or administrative orders based on policy considerations such as Administrative Circular No. 20-97 supplemented on March 27, 1997, by Administrative Order No. 46-99 authorizing the judges named therein to act on all applications for search warrants filed by the named specific agencies involving illegal gambling, dangerous drugs, illegal possession of firearms and other major crimes for the search of places to be particularly described therein, and the seizure of property or things as prescribed in the Rules of Court, and to issue the warrants, if justified, which may be served in places even outside the territorial jurisdiction of said courts. Section 3. Personal property to be seized Properties Subject to Seizure: 1. Property Subject of the Offense; 2. Property Stolen or Embezzled and other Fruits or Proceeds of the offense; 3. Property Used or intended to be used as the Means of committing the offense
*** The fact that the thing is a corpus delicti of a crime does not justify the seizure without a warrant

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Search warrants have been allowed to search for the ff: 1) Stolen goods 2) Those supposed to have been smuggled into the country in violation of the revenue laws 3) Implements of gaming and counterfeiting 4) Lottery tickets 5) Prohibited liquors kept for sale contrary to law 6) Obscene books and papers kept for sale or circulation 7) Powder and other explosive and dangerous materials so kept as to endanger public safety 8) Slot machines, being gambling devices *** Property seized is not required to be owned by the person against whom the search warrant is directed *** It s not necessary that there be arrest or prosecution before seizure could be affected *** The fact that a thing is a corpus delicti of a crime does not justify the seizure without a warrant Sec. 4. Requisites for issuing search warrant: Requisites for the issuance of a valid search warrant: 1. probable cause 2. which must be determined personally by the judge himself after oath and affirmation and not by the applicant or any other person 3. the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complaint and any witness he may produce, on facts personally known to them 4. the probable cause must be in connection with one specific offense 5. the warrant issued must particularly describe the place to be searched and the persons or things to be seized 6. the sworn statements together with the affidavits submitted by witnesses must be attached to the record. PROBABLE CAUSE - It is such facts and circumstances antecedent to the issuance of the warrant, that are in themselves sufficient to induce a cautious man to believe that the person against whom the search warrant is applied, had committed, or is about to commit, a crime *** Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. *** Probable cause presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions violating a given provision of our criminal laws (Stonehill v. Diokno) *** Probable cause is determined in the light of the conditions obtaining in given situations, but there is no general formula or fixed rule for the determination of the existence of probable cause. *** Existence depends of a large degree upon the finding or of the opinion of the judge conducting the examination. *** Probable cause must be determined personally by the judge himself, and not by the applicant or any other person; *** A judge may reverse his finding of probable cause, provided that the rectification is based on sound and valid grounds *** This requirement does not extend to deportation proceedings (Morano vs. Vivo) *** Immigration Commissioner has authority to determine probable cause ONLY for the purpose of issuing a warrant of arrest. *** The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witness he may produce, on facts personally known to them;

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*** Application for a search warrant is heard ex-parte, there is neither a trial nor a part of the trial *** Examination must be under oath and may not be in public *** Examination of witnesses to determine probable cause: 1) Judge must examine witnesses personally 2) Examination must be under oath; and 3) Examination must be reduced to writing in the form of searching questions and answers *** The test in determining whether the allegations in an application for a search warrant are based on personal knowledge – should not be based on mere hearsay, nor mere suspicion or belief
*** The affidavits which go no further than to allege conclusions of law or a fact, are insufficient

***

TEST: Affidavits must be sufficient to make liable the maker for perjury if found to be untrue:Mere affidavits is not enough, there must be deposition (Mata vs. Bayona 128 SCRA 388)

Reason for requiring that no search warrant shall issue for more than one specific offense: → It would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims, caprice or passion of peace officers. Reason of requiring that a search warrant must particularly describe the place to be searched and the persons or things to be seized: → to limit the things to be seized to those, and only those, particularly described in the search warrant – to leave the officers of the law no discretion regarding what articles they shall seize, to the end that “ unreasonable searches and seizure” may not be made, that abuses may not be committed…Therefore, no other property than those described in the search warrant may be taken thereunder. Test to determine Particularity 1. When the description therein as specific as the circumstances will ordinarily allow 2. When the description express a conclusion of fact- not of law which the warrant officer may be guided in making the search and seizure. 3. When the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. *** This requirement is sufficient if the officer to whom the warrant is directed is enabled to locate the same definitely and with certainty. *** This does not require the true legal description to be given in a required form *** The constitution requires that it be a description which particularly points to a definitely ascertainable place, so as to exclude all others. *** The description must be so particular that the officer charged with the execution of the warrant will be left with no discretion respecting the property to be taken.
*** Description of the place in SW is restricted to that place and cannot be amplified or modified by the officer serving the same except only the judge issuing it (People vs. CA 291 SCRA 400)

*** It may be said that the person to be searched is particularly described in the search warrant when his name is stated in the search warrant, or if name is unknown, he is designated by words sufficient to enable the officer to identify him without difficulty *** If the officer follows the command of the warrant, he is protected, but if he exceeds the command, he is not protected by the warrant and he only assumes to act without process *** If the officer acts within the command of his warrant, he is protected even if the complaint is proven to have been unfounded.
*** Evidence illegally seized may be used against the police officer who made the illegal search

*** Obeying strictly the command of his warrant, he may break open outer or inner doors, and his justification does not depend upon his discovering that for which he is to make the search

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*** If officer is refused admittance to the place of directed search after giving notice of his purpose and authority, he may break open any outer or inner door or window of a house or any part of a house or anything to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. *** Demand is necessary prior to a breaking in of the doors, only where some person is found in charge of the building to be searched. Section 5. Issuance and form or search warrant. - An application for a search warrant is heard ex-parte. It is neither a trial nor a part of the trial. The examination or investigation, which must be under oath may not be in public. It may be even held in the secrecy of the chambers. It must be under oath and must be in writing. - The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused - Mere affidavits of the complainant and his witnesses are not sufficient for the issuance of a search warrant. The examining judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order the judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the persons giving it if it will be found later that his declarations are false. Sec. 8. search of house
MANNER OF SEARCH – A search and seizure is made in the following manner: a) Inform the lawful occupant or any person therein the authority of the officer and showing the SW; b) If refused admittance, the officer shall have the right to break door or window to effect search after giving notice of his purpose and authority, and to liberate himself or any person lawfully aiding him when unlawfully detained therein. c) Search of house, room, or premise must be made in the presence of L.A.T 1. Lawful occupant thereof or 2. Any member of his family or in the absence of the latter, 3. Two (2) witnesses of sufficient age and discretion residing in the same locality. “2 witness rule”

*** In searching a house, room or other premises, such shall be done in the presence of a lawful occupant or any member of his family, or in the presence of at least 2 witnesses of sufficient age and discretion, residing in the same locality *** The searching officer should also be considerate of the premises searched; he should mar the premises as little as possible, and should carefully replace anything he finds necessary to remove. Section 9. Time of making search. *** The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.
*** Without such express direction that it can be served at night, SW is void (Alvarez vs. CFI 64 Phil 33) or that when the time for search was left in bank (Asian Surety vs. Herrera)

Section 10. Validity of search warrant. *** A warrant is valid for ten (10 ) days from its date. After such time, it is VOID *** A search warrant cannot be used everyday for ten days and for a different purpose each day. *** After the articles for which the warrant was used have been seized the same warrant cannot be used as authority to make another search
*** This rule is NOT APPLICABLE when the search for a property mentioned in the warrant was not completed on the day when the warrant was issued and had to be continued the next day

2000 Amendment

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Sec. 11. Receipt for the property seized. – The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a) Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether Section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. (11a) ----------------------------*** The judge shall see to it that the seizing officer has complied with his duties under subsection (a) hereof. The amendment who made to assure strict compliance in the implementation of the search warrant after the issuance thereof. Section 13. Search incident to lawful arrest. *** A person lawfully arrested may be searched for dangerous weapons or anything, which may be used as proof of the commission of an offense, without a search warrant.
*** It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control.

*** Search made without a warrant cannot be justified as an incident of arrest unless the arrest itself was lawful *** Search must be made at the place of the arrest and contemporaneous with the arrest, otherwise it is not an incident to the arrest. In other words, a search is not incidental to the arrest unless the search is made at the place of arrest, contemporaneously with the arrest.
*** in buy-bust operation, seizure of evidence from a person without a search warrant is valid being incidental to lawful arrest (People vs. de la Cruz 184 SCRA 416)

Cases where warrantless searches and seizures valid: 1. search of moving vehicles 2. consented search without a warrant ( waiver ) 3. seizure of evidence in plain view 4. enforcement of customs law, except in dwelling house 5. search based on probable cause under extraordinary circumstances 6. checkpoints 7. stop and frisk search

SC Guidelines or Limitations on Warrantless Search in Checkpoint: (Valmonte vs. De Villa) 1. Search is limited to visual search; 2. Neither the vehicle nor the occupants are subjected to the search; 3. Extensive/intrusive search is allowed only if the officer have probable cause to believe that the driver/occupants are law offender or in possession of evidence used in the commission of the crime; 4. Putting of checkpoint and its place must be pre-announced to the public;

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5. Checkpoint must be stationary. “CONSENTED SEARCH” Requisites of Valid Waiver: a) it must appear that the right exists; b) person involved had knowledge either actual or constructive of the existence of such right; c) actual intention to relinquish such right; *** silence of the accused during a warranltess search was not construed as consent but a demonstration of regard for the supremacy of the law (People vs. Barros 231 SCRA 557) *** consent given under intimidating or coercive circumstances is not within the purview of the constitutional right (Aniag vs. Comelec 237 SCRA 424) PLAIN VIEW DOCTRINE Requisites: laid down in People vs. Doria GR No. 125299 January 22, 1999 - [PJ, DI, IA] 1. the law enforcement officer in search of evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; 2. discovery of the evidence in plain view is inadvertent; 3. it is immediately apparent to the officer that the items he observed may be evidence of a crime, contraband of otherwise subject to seizure *** Objects in a “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. It is usually applied where a police officer is not searching for evidence against the accused but nonetheless inadvertently comes upon an incriminating object. (People vs. Musa 217 SCRA 597) *** Plain view doctrine may not be used to launch unbridled search and indiscriminate seizures, nor to extend to a general exploratory search made solely to find evidence against defendant’s guilt. STOP AND FRISK SEARCH Stop and Frisk Search, Concept – when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is presently dangerous to the officer or others, he may conduct a limited protective search for concealed weapons (Terry vs. Ohio) Purpose: this limited search is not to investigate but to allow the officer to pursue his investigation without risk of violence. *** Unreasonable search and seizure is such where it is not authorized by statute, or where the conditions prescribed by the stature have not been met RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE: - the right is available to all persons including aliens whether accused of crime or not and corporations; - This right is personal and may be invoked only by the person entitled to it; *** the rights is a limitation on the powers of the government and directed against its agents. - However when search and seizure is made by a private person, although it is illegal, it can however be used as evidence without violating the exclusionary rule without prejudice to filing a case against the person who violated his rights. *** What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question *** Such is determinable from a consideration of the circumstances involved, including the ff: 1) The purpose of the search 2) Presence or absence of probable cause 3) Manner in which the search and seizure was made 4) Place or thing searched 5) Character of the articles procured.

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*** Searches and seizure inside a home are presumptively unreasonable *** Constitutional prohibition against unlawful searches and seizure applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. It could thus only be invoked against the State. *** The legality of a seizure can be contested only by the party whose rights have been impaired thereby *** The objection to an unlawful search and seizure is purely personal and cannot be availed by third parties *** The remedy for questioning the validity of a search warrant can only be sought in the court that issued it, not the sala of another judge of concurrent jurisdiction – this is done through a motion to quash warrant of arrest - UNLESS, a case has already been filed in another court Waiver of legality and admissibility - Objection to the legality of the search warrant as to the admissibility of the evidence obtained or deemed waived where no objection of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant. Total Exclusionary Rule - Excludes as inadmissible in evidence those that were illegally seized in violation of the provisions of the Constitution applies a restraint directed only against the government and its agencies tasked with the enforcement of the law. It could only be invoked against the state to whom the restraint against the arbitrary and unreasonable exercise of power is imposed. *** Through RA No. 4200 or the Anti-Tapping Law, tapping of phone wires of the premises of an accused, wherein persons accused of violation criminal laws are engaged in conversation constitutes a violation of the Constitutional provision on the right of the people to secure in their persons, papers and effects. *** It also penalizes other acts similar to wire-tapping. Some similar acts are taping or recording conversations of people, by others who are not authorized by the former to record or tape. 2000 Amendment Sec. 14. A motion to quash a search warrant or to suppress evidence; where to file. – A motion to quash a search warrant or to suppress evidence obtained thereby may only be filed and acted upon only by the court that issued the search warrant. If the motion has not been resolved by the court which issued the search warrant and a criminal case is subsequently filed in another court, the motion shall not be resolved by the latter court unless compelling reasons warrant its resolution by the former court. (n) __________ REMEDIES AGAINST SW: a) Motion to Quash Warrant; b) Motion to Suppress Evidence; c) If patently illegal – Certiorari may lie where no speedy and adequate remedy is available in the ordinary course of law (Not replevin Pagkalinawan vs. Gomez 1967) d) Violation of forum shopping rule where after denial of application of RTC of Pampanga, the same was filed in RTC Manila (Washington Distillery vs. CA 260 SCRA 821) But not absence of certification in the application for SW because the rule only applies to “initiatory pleadings” not applications (Savage vs. Taypin May 11, 2000)

GENERAL RULE: A motion to quash a search warrant or to suppress evidence may only be filed and acted upon only by the court where the action is pending. EXCEPTION: If no criminal action has been filed, the motion may be filed in and resolved by the court that issued the search warrant.

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EXCEPTION to the EXCEPTION: If the criminal case is subsequently filed in another court and the motion to quash is still not resolved by the issuing court, the motion shall not be resolved by the former court unless compelling reasons warrant its resolution by the latter court. *** Filing of motion to quash is without prejudice to any proper recourse to the appropriate higher court by the party aggrieved. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived. *** In view of the foregoing amendment, it seems that the OMNIBUS MOTION RULE is no longer applicable because the motion to quash or motion to suppress evidence is now filed in one court.

Rule 127 PROVISIONAL REMEDIES IN CRIMINAL CASES
Section 1. Availability of provisional remedies. Nature of Provisional Remedies 1. Those to which parties litigant may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action. 2. They are applied to a pending litigation for the purposes of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. Purpose of provisional remedies 1) Provisional remedies are applied pending litigation, to secure the judgment or preserve the status quo 2) If provisional remedies are applied to after judgment, it is in order to preserve or dispose of the subject matter. Kinds of provisional remedies 1. attachment 2. injunction 3. receivers 4. delivery of personal property 5. support pendente lite Section 2. Attachment. *** Attachment is a remedy afforded to the offended party to have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused *** This may be filed at the commencement of a criminal action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered in the aforementioned cases. - It was held by the Supreme Court that the public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party, particularly considering that the corresponding civil liability of the culprits is to be determined therein, no reservation having been made of the right to enforce it in a separate civil action. Attachment may be availed of only when the civil action arising from the crime has not been expressly waived or not reserved and only in the following cases: a) when the accused is about to abscond from the Philippines; b) when the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer or a corporate officer or an attorney, broker, or agent or clerk in the course of employment or by a person in a fiduciary capacity. c) when the accused has concealed, removed or about to dispose of his property d) when the accused resides abroad. EXECUTION OF SERVICE OS SENTENCE:

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POWERS OF THE COURTS IN THE EXECUTION OF SERVICE OF SENTENCE: 1. Supervisory Powers over all persons in custody for the purpose of eliminating all unnecessary detention. 2. Inspection Power – monthly personal inspections of jails and their prisoners within their respective jurisdictions to inquire into proper accommodation and health, number of detainees, condition of jail facilities, segregation of sexes and of minors from adults, observance of the right of the detainees to confer privately with counsel, and elimination of conditions disadvantageous to the detainees; 3. Reportorial Powers – monthly report of such visitation shall be submitted by executive judges to the Court Administrator, stating total number of detainees, the names of those detained for more than 30 days, duration of detention, crime charged, status of the case, cause for detention, and other pertinent information. 4. Residual Powers – power of the courts to control to a certain degree the execution of final judgment. Example: suspension of execution of a death convict suffering from insanity.

*** The powers of the Executive, Legislative and Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. (Echegaray vs. Sec. Of Justice GR No. 132601 January 19, 1999) *** In fixing any fine, court may fix within the limits prescribed by law considering the aggravating or mitigating circumstances of the case, as well as the wealth or means of the accused. (People vs. Ching Kuan 74 Phil 23)

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