Trial

TRIAL PROPER

Rule 115 RIGHTS OF ACCUSED
Section 1 – Rights of accused at the trial – In all criminal
prosecutions, the accused shall be entitled to the
following rights;
a.) To be presumed innocent until the contrary is
proved beyond reasonable doubt.
xxxxx

Why is it that in criminal cases an accused enjoys this
presumption? Why does the law give the accused the
presumption of innocence?
The SC already answered that the reason is to make the
fight at least equal. In criminal cases, all the resources
are directed against the accused. It is the accused versus
the People of the Philippines – so you are fighting the
government, and the government has all the resources at
its command – the PNP, NBI, etc. In the case of
PEOPLE vs. SEQUERRA October 12, 1987
HELD:
“Confronted by the full panoply of state authority, the
accused is accorded the presumption of innocence to
lighten and even reverse the heavy odds against him.
Mere accusation is not enough to convict him, and neither
is the weakness of his defense. The evidence for the
prosecution must be strong per se, strong enough to
establish the guilt of the accused beyond reasonable
doubt. Otherwise, he is entitled to be freed.”
“But as solicitous as the Bill of Rights is of the accused,
the presumption of innocence is not an automatic or
blanket exoneration. It is at best only an initial protection.
If the prosecution succeeds in refuting the presumption, it
then becomes the outlook of the accused to adduce
evidence that will at least raise that inkling of doubt that
he is guilty. Once the armor of the presumption is pierced,
so to speak, it is for the accused to take the offense and
ward off the attack.”
The burden lies on the prosecution to overcome such
presumption of innocence by presenting the quantum of
evidence required. In so doing, the prosecution must rest
on the strength of its own evidence and must not rely on
the weakness of the defense. And if the prosecution fails
to meet its burden of proof, the defense may logically not
even present evidence on its own behalf. In such cases
the presumption prevails amd the accused should
necessarily be acquitted (People vs. Angus GR No.
178778, Aug. 3, 2010)So the accused cannot rely forever
in the presumption of innocence. This is a disputable
presumption. The prosecution can destroy that
presumption by presenting evidence that you are guilty
and once the prosecution has presented that you cannot
anymore rely on this presumption. It is now your duty to
present evidence that you are innocent.

Paragraph [a] emphasizes the degree of proof in criminal
cases.
"x x x Proof beyond reasonable doubt does not mean
such degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces

conviction in an unprejudiced mind: (Sec. 2 R 133, Rules
of Court)
The Court in Mupas vs. People, GR No. 172834, Feb. 6,
2008, describes reasonable doubt as " that doubt
engendered by an investigation of the whole proof and an
inability after such investigation to let the mind rest easy
upon the certainty of guilt."
Presumption continues even on appeal from a
judgment of convictionThe fact of respondent's conviction by the RTC does not
necessarily warrant the suspension. Since the convictions
are currently on appeal before the CA, the same have not
yet attained finality. As such, the respondent still enjoys
the constitutional presumption of innocence...Until the
accused's guilt is shown (beyond reasonable doubt), the
presumption continues and until a promulgation of final
conviction is made, this constitutional mandate prevails
(Re: Conviction of Judge Angeles, AM No. 06-9-545-RTC,
Jan. 31, 2008).
Regularity in the performance of official duties and
presumption of innocence"x x x While the seized drugs may be admitted in
evidence, it does not necessarily follow that the same
should be given evidentiary weight if the procedures
provided by RA No. 9165 were no. The admissibility of the
seized dangerous drugs in evidence should not be
equated with its probative value in proving the corpus
delicti. The admissibility of evidence depends on its
relevance and competence while the weight of evidence
pertains to evidence already admitted and its tendency to
convince and persuade.
Finally, ruled the Court, the presumption of regularity in
the performance of official duty relied upon by the lower
courts cannot by itself overcome the presumption of
innocence nor constitute proof of guilt beyond reasonable
doubt. As a rule, the testimony of public officers who
apprehended the accused is accorded full faith and credit
because of the presumption that they have performed
their duties regularly. However, when the performance of
their duties is tained with irregularities such presumption
is effectively destroyed (People vs. Frondoso, GR No.
177164, June 30, 2009).

1. Elements of due process
Aguirre v. People

363 SCRA 672

August 23, 2001

Question:
What are the elements of due process in judicial
proceedings?
Answer:
The essential requirements of due process are:
1.

There must be a court or tribunal
clothed with judicial authority to hear
and determine the matter before it;

2.

Jurisdiction must be lawfully acquired
over the person of the defendant or
property which is the subject of the
proceeding;

3.

The defendant must be given
opportunity to be heard; and

2.

Judgment must be rendered upon lawful
hearing.

an

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1. Prima facie presumption of guilt
Hizon v. CA

265 SCRA 517

December 13, 1996

Facts:

right to be informed of the charges against him has not
been violated because where an accused is charged with
a specific crime, he is duly informed not only of such
specific crime, but also of lesser crimes or offenses
included therein (People vs. Noque, GR No. 175319, Jan.
15, 2010).

Hizon challenges the provision of P.D. 704, the Fisheries
Decree, which provides that the discovery of explosives
or obnoxious substance in any fishing boat shall
constitute a presumption that the owner or operator was
fishing with the use of explosives or poisonous substance,
as a violation of the constitutional presumption of
innocence.

Waiver

Issue:

But the failure to file a motion to quash the information
cannot amount to a waiver of the constitutional right to
be informed (Burgos vs. Sandiganbayan 413 SCRA 385).

Is there a violation of the right to be presumed innocent?

When the counsel of the accused actively participated in
the proceedings this indicates that the accused was fully
aware of the charges against him, otherwise, his counsel
would have objected and informed the court of the
blunder (People vs. Pangilinan, 518 SCRA 318)

Held:
No. The legislature has the power to provide that proof of
certain facts can constitute a prima facie evidence of guilt
provided there is a rational connection between the fact
proved and the fact presumed. To avoid any
constitutional infirmity, the inference of one from proof of
the other must not be arbitrary and unreasonable.

1. Relationship

P.D. 704 creates a presumption of guilt based on facts
proved and hence is not constitutionally impermissible.
However, the statutory presumption can only be prima
facie. It cannot, under the guise of regulating the
presentation of evidence, operate to preclude accused
from presenting his defense to rebut the fact presumed.

Is the allegation in the information that the victim is a
“half-sister” of the accused sufficient to qualify a charge
of rape?

2. The equipoise rule
Dado v. People

392 SCRA 46

November 18, 2002

Issue:
When the evidence presented by the prosecution and the
accused are of equal weight, which side shall prevail?
Held:
Under the equipoise rule, where the evidence on an issue
of fact is in equipoise or there is doubt on which side the
evidence preponderates, the party having the burden of
proof loses.
The equipoise rule finds application 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 consistent with
his guilt, for then the evidence does not fulfill the test of
moral certainty, and does not suffice to produce a
conviction. Briefly stated, the needed quantum of proof to
convict the accused of the crime charged is lacking.
b.) To be informed of the nature and cause of the
accusation against him.
Minor variance between the information and the
evidenceDoes conviction for the sale and possession of
methamphetamine hydrochloride (shabu) violate the
accused's constitutional right to be informed if the fact
that was established and proven during the trial was the
sale and possession of ephedrine, a regulated drug?
"x x x At a glance, a minor variance between the
information and the evidence does not alter the nature of
the offense, nor does it determine or qualify the crime or
penalty, so that even if a discrepancy exists, this cannot
be pleaded as a ground for acquittal. In other words, his

a. “Half-sister”
People v. Sajolga

387 SCRA 519

August 21, 2002

Issue:

Held:
No. It must be alleged in the information that he is a
relative by consanguinity or affinity, as the case may be,
within the third civil degree. Not only should “relationship
by consanguinity or affinity” be alleged, it is also
necessary to specify that such relationship is “within the
third civil degree.” Mere allegation and the stipulation
that accused is the brother of the victim because they
have a common mother are not enough to satisfy the
special qualifying circumstance of relationship.

b. “Step-daughter”
People v. Blancaflor

421 SCRA 354
2004

January 29,

Facts:
Accused was charged with the rape of his own 14-year old
step-daughter. Under R.A. 7659, where the victim is less
than 18 years of age and the accused is the commonlaws-spouse of the parent of the victim, the imposable
penalty is death.
Issue:
Considering that the information merely alleged that the
victim is the “step-daughter” of accused, without
specifying her age or the fact that accused was the
common-law spouse of the victim’s mother, can accused
be sentenced to death?
Held:
No. The information did not allege the qualifying
circumstance of minority of complainant and the fact that
accused is the common-law spouse of the victim’s
mother, not having been legally married. The correct
allegation should have been that accused is the commonlaw spouse of the parent of the victim, as contemplated
by law, so that accused may be fully apprised of the
exact charge against him. The minority of the victim and
the offender’s relationship to the victim, which constitute
only one special qualifying circumstance, must be alleged

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in the information and proved with certainty. For failure to
properly allege in the information the qualifying
circumstance that the victim is under 18 years of age and
that the offender is a common-law-spouse of the parent
of the victim, the special qualifying circumstance of
minority and relationship could not be taken into
consideration and accused could only be found guilty of
simple rape which is punishable by reclusion perpetua.

view of the victim’s mental condition. There was no
objection from the defense.

2. Age/mental retardation

Question:

a. “Minor”

May an accused charged in the information with rape
committed through force and intimidation as defined in
Art. 335 [1] of the Revised Penal Code, be convicted of
rape under Art. 335 [2] i.e., rape of a woman who was
deprived of reason, including those with the mental
capacity of a child below 12 years old?

People v. Gaudia

423 SCRA 520
2004

February 23,

Facts:
Accused was charged with rape. The victim was below 7
years old at the time of the incident, but the information
merely alleged that she was a “minor” without stating the
precise age.
Issue:
Can accused be convicted
sentenced to death?

of

qualified

rape

and

a. As to mode of commission
People v. Atienza

No. Since the information did not allege that the victim
was below 7 years old when she was violated, accused
was therefore charged with simple rape, under Sec. 335
of the Revised Penal Code, as amended by R.A. 7659
(Death Penalty Law). Upon its passage, R.A. 7659
introduced 7 new attendant circumstances, which when
present, will transform the crime to qualified rape,
punishable by death. These new attendant circumstances
must be properly pleaded in the information to justify the
imposition of the death penalty. The main purpose of
requiring all the elements of a crime to be set out in the
information is to enable the accused to suitably prepare
his defense. It would be a denial of the right of the
accused to be informed of the charges against him and,
consequently, a denial of due process, if he is charged
with simple rape and be convicted of its qualified form
punishable with death.

b. Failure to allege retardation
384 SCRA 393

July 11, 2002

Issue:
May an accused be convicted of rape of a mental
retardate under an information which failed to allege the
victim’s mental state and where accused failed to object
to evidence of her mental retardation?
Held:
Yes. Accused has waived his constitutional right to be
informed of the accusation against him. The records show
that accused did not object to the manifestation made by
the prosecution that the victim should first be examined
to determine her mental condition. He neither moved for
reconsideration nor appealed the Order of the trial court
directing the National Center for Mental Health to conduct
the mental examination of the victim. The accused
likewise did not oppose the prosecution’s presentation
and offer of evidence that would prove the victim’s
mental condition. During the direct examination of the
victim, the public prosecutor asked permission from the
judge and was allowed to propound leading questions in

326 SCRA 802
2000

February 29,

Answer:
Yes. An accused charged with rape through one mode of
commission may still be convicted of the crime if the
evidence shows another mode of commission provided
that the accused did not object to such evidence.

People v. Ortega, Jr.

Held:

People v. Orbita

3. Mode or manner of commission

276 SCRA 166

July 24, 1997

Facts:
Accused assisted in concealing the body of a person
stabbed by someone else by dumping it in a well not
knowing that the victim was still alive. As a consequence,
the victim died of drowning. Accused was thus charged as
a principal in the crime of murder committed through the
stabbing.
Issue:
May accused be convicted of murder in an information
charging him with the offense through stabbing when the
evidence showed that the death was caused by
drowning?
Held:
No. An accused cannot be convicted of an offense, unless
it is clearly charged in the complaint or information.
Constitutionally, he has a right to be informed of the
nature and cause of the accusation against him. To
convict him of an offense other than that charged in the
complaint or information would be a violation of this
constitutional right. Thus, accused cannot be convicted of
homicide through drowning in an information that
charges murder by means of stabbing.

b. As to manner of commission
People v. Dimaano

469 SCRA 14
2005

September 14,

Issue:
Is the complaint sufficient if it merely states that accused
did “try and attempt to rape” the victim?
Held:
No. For a complaint to be sufficient, it must state the acts
or omissions complained of as constituting the offense.
The complaint in this case fails to allege specific acts or
omission constituting the elements of the crime of rape.
Neither does it constitute sufficient allegation of elements
for crimes other than rape, i.e., acts of lasciviousness.
The allegation therein that the accused “tried and

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attempted to rape” the complainant does not only satisfy
the test of sufficiency of a complaint or information, but is
merely a conclusion of law by the one who drafted the
complaint. This insufficiency therefore prevents this Court
from rendering a judgment of conviction; otherwise we
would be violating the right of the accused to be informed
of the nature of the accusation against him.

c. As to crime committed
People v. Del Rosario

234 SCRA 246

July 20, 1994

Issue:
May a person charged with sale of “shabu” be convicted
of possession of the same instead?
Held:
No. Accused cannot be convicted of possession of the
“shabu” contained in a canister and allegedly seized at
his house, for the charge against him was for selling
“shabu” with the information alleging that the “accused,
without legal authority did . . . sell to a poseur buyer an
aluminium
foil
containing
Methamphetamine
Hydrocholoride...” Sale is tot ally different from
possession. Art. 1458 of the Civil Code defines sale as a
contract whereby “one of the contracting parties
obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay therefor
a price certain in money or its equivalent”, while
“possession is the holding of a thing or the enjoyment of
a right” as defined by Art. 523 of the Civil Code. Accused
cannot be convicted of a crime which is not charged in
the information for to do so would deny him the due
process of law.

4. Date of commission
a. BP Blg. 22
Alonto v. People

445 SCRA 624
2004

December 9,

May an accused, who failed to object to the testimony of
the victim, be convicted of rape committed on Nov. 26,
1983 when the information charges him of rape
committed on Nov. 26, 1982?
Held:
Yes. Where time or place or any other fact alleged is not
an essential element of the crime charged, conviction
may be had on proof of the commission of the crime,
even if it appears that the crime was not committed at
the precise time or place alleged, or if the proof fails to
sustain the existence of some immaterial fact set out in
the complaint, provided it appears that the specific crime
charged was in fact committed prior to the date of the
filing of the complaint or information within the period of
the statute of the limitations, and at a place within the
jurisdiction of the court. (U.S. vs. Smith, 2 PHIL 20)

5. As to check number
Dico v. CA

452 SCRA 441

February 28, 2005

Issue:
May accused be convicted of violation of B.P. 22 where
the information charges him of issuing FEBTC Check No.
364903 but the evidence of the prosecution showed that
he in fact issued FEBTC Check No. 369403?
Held:
No. The variance in the identity of the check nullifies the
conviction of accused. The identity of the check enters
into the first element of the offense under Sec. 1 of B.P.
22 – that a person draws or issues a check on account or
for value. There being a discrepancy in the identity of the
checks described in the information and that presented in
court, the constitutional right of accused to be informed
of the nature of the offense charged will be violated if his
conviction is upheld.

6. Effect of failure to object

Facts:

People v. Narawi

The information against accused for violation of B.P. 22
charged her of issuing the postdated check on May 14,
1992. However, the documentary evidence presented
and duly marked was BPI Check No. 831258 in the
amount of P25,000 dated Apr. 5, 1992.

Issue:

Issue:

Yes. In this case, while the information failed to
specifically allege that the sexual intercourse was
committed through force or intimidation, the prosecution
presented evidence, no objection to which was interposed
by accused, that they committed rape through force.
Besides, the information alleged that the sexual
intercourse was against the victim’s will.

Can accused be convicted of the offense?
Held:
No. Since the identity of the check enters into the first
essential elements of the offense under Sec. 1 of B.P. 22,
that is, that a person makes, draws or issues a check on
account or for value, and the date thereof involves its
second element, namely, that at the time of issue the
maker, drawer or issuer knew that he or she did not have
sufficient funds to cover the same, there is a violation of
the right of the accused to be informed of the nature of
the offense charged in view of the variance.

b. Rape
People v. Lucas
Issue:

232 SCRA 537

May 25, 1994

414 SCRA 395

October 24, 2003

May the accused be convicted of rape in an information
which failed to alleged use of force and intimidation?
Held:

7. Alternative charges
People v. Dela Cruz

383 SCRA 410

June 21, 2002

Facts:
Accused was charged with violation of R.A. 7610 which
alleges that he committed sexual abuse on his daughter
“either by raping her or committing acts of lasciviousness
on her.”
Issue:

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Is the information sufficient to convict accused of the
crime?
Held:
No. The allegation in the information that accused
“wilfully, unlawfully and feloniously commit sexual abuse
on his daughter [Jeannie Ann] either by raping her or
committing acts of lasciviousness on her” is not a
sufficient averment of the acts constituting the offense as
required under Sec. 8, Rule 110, for these are conclusions
of law, not facts. The information is therefore void for
being violative of his constitutionally-guaranteed right to
be informed of the nature and cause of the accusation
against him. Although accused failed to call the attention
of both the trial court and this Court regarding the defects
of the information the Court may motu proprio dismiss
said information at this stage.

8. Number of offenses
People v. Antido

278 SCRA 425
1997

September 4,

Issue:
When the information charges an accused with one count
of rape, may he be convicted of 2 counts where he failed
to object to the testimony of the victim that she was
raped twice?
Held:
No. Since the information specifically charges the
accused with only one act of rape committed on a specific
date, then consistent with the constitutional right of the
accused to be informed of the nature and cause of
accusation against him, he cannot be held liable for other
acts of rape. There can only be one conviction for rape if
the information charges only one offense, even if the
evidence shows that more than one was in fact
committed. The right of a person to be informed of the
nature and cause of accusation against him cannot be
waived for reasons of public policy.

9. Conviction of constituent crimes
People v. Legaspi

246 SCRA 206
1995

July 14,

Facts:
Accused were charged in 2 separate informations, one for
double murder and the other for carnapping under RA No.
6539. The two cases arose out of one incident and they
were jointly tried in the same RTC branch.
Issue:
May accused be convicted of the special complex crime
of robbery with double homicide?
Held:
No. Their conviction can only be limited to the crime
alleged or necessarily included in the allegations in the
separate informations. What controls is the description of
the offense, as alleged in the information. While the trial
court can hold a joint trial of two or more criminal cases
and can render a consolidated decision, it cannot convict
the accused of a complex crime constitutive of the
various crimes alleged in the 2 informations. Thus, the
accused were deprived of their constitutional right to be
informed of the nature and cause of the accusation
against them.

10. Where accused is a deaf-mute
People v. Parazo

310 SCRA 146

July 8, 1999

Facts:
Accused was charged with rape. The results of medical
examinations conducted on him indicate that he is a deafmute and a mental retardate, whose mental age is only 7
years and 9 months, and with low IQ of 60 only. During
trial, he was not assisted by a sign language interpreter
and he was convicted and sentenced to death.
Issue:
Is the conviction valid?
Held:
No. The absence of a qualified interpreter in sign
language and of any other means, whether in writing or
otherwise, to inform the accused of the charges against
him denied the accused his fundamental right to due
process of law. The accuracy and fairness of the factual
process by which the guilt or innocence of the accused
was determined was not safeguarded. The accused could
not be said to have enjoyed the right to be heard by
himself and counsel, and to be informed of the nature
and cause of the accusation against him in the
proceedings where his life and liberty were at stake.
Yes, you should know why you are there. It is very
awkward that you are charged without even knowing
what the charge is all about. That is why there is an
arraignment to make everything formal.

Q: Can you waive the right to be informed of the nature
and cause of the accusation against him?
A: NO. It is not waivable because public interest is
involved in this right, the public having an interest in
seeing to it that no person is unlawfully deprived of his
life or liberty. (U.S. vs. Palisoc, 4 Phil. 207)
There are certain rights of the accused that are waivable;
there are certain rights that cannot be waived. For
example: to be presumed innocent until the contrary is
proved – can you waive that? “Ah OK lang, you can
presume me guilty!” I don’t think the court will agree with
that. That is not waivable.
And mind you, there was a bar examination in the past,
where the examiner asked this question – “among the
rights of the accused outline those which can be waived
and cannot be waived.” So practically you have to know
[a] – [i]. It’s not only a question of enumerate the rights of
the accused but segregate those which can be waived
and those which cannot be waived. “To be presumed
innocent – pwede bang ma-waive ito?

Sec 1(c) Right of the Accused to be Present at his
Trial
1. Right of the accused to be present at every
stage of the proceedings, from arraignment to
promulgation of judgment:
1. General Rule – the accused may waive his
right to be present at the trial pursuant to the stipulations
set forth in his bail
2. Exceptions – the accused has to appear:

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

when his presence is specifically
ordered by the court for purposes of
identification,



during arraignment, and



during promulgation of judgment

2. Effect of absence of the accused without
justifiable cause at the trial of which he had notice:

of his right to be present thereat.” This is taken from
Article II, Section 14 (2), - Trial in absentia.
But take note that in trial in absentia, it assumes that:
1.

the court already acquired jurisdiction over your
person;

2.

you were arrested; and

3.

you must first be arraigned. So arraignment is a
prerequisite for trial in absentia to apply.

It shall be considered a waiver of his right to be
present thereat
3. Effect when an accused under custody escapes:
He shall be deemed to have waived his right to
be present on all subsequent trial dates until
custody over him is regained

This is a right to be present from arraignment to
promulgation.
Q: But technically, do you have the obligation to be
there?
A: NO. This right is waivable because the law says the
accused may however waive his presence during the trial,
unless the presence of the accused is specifically ordered
by the court for purposes of identification.
This was taken from the case of NINOY AQUINO, JR vs.
MILITARY COMMISSION where Ninoy was arrested and
tried in a military court and he refused to participate in
the proceedings. And issue now is, can he be forced by
the court to appear?
SC: YES, because how can he be identified if he will not
appear? That is why it is now found in the Rules.

Q: What is the difference between these two sentences in
[c]: “The absence of the accused without justifiable cause
at the trial of which he had notice shall be considered a
waiver of his right to be present thereat” and “when an
accused under custody escapes, he shall be deemed to
have waived his right to be present on all subsequent trial
dates until custody over him is regained”?
A: In the first sentence, the accused is absent without
justifiable cause during the particular trial date, and so
the trial may continue. But he can still appear in the next
trial. He only waived his right to be present on that date
but he has not waived his right to be present on
subsequent trial dates. He has not waived his right to
present evidence.
In the second sentence, you escaped or you jumped bail.
You are not only waiving your right to be present on this
date but on all subsequent dates. And therefore, there
can be a judgment against you when the prosecution
rests.

This trial in absentia was explained by the SC in the case
of
PEOPLE vs. AGBULOS

CARREDO vs. PEOPLE

183 SCRA 273

ISSUE:
After arraignment he can waive his presence during the
trial, but can he be ordered arrested by the court for an
appearance, upon summons to appear for purposes of
identification?
HELD:
YES. “Waiver of appearance and trial in absentia does not
mean that the prosecution is thereby deprived of its right
to require the presence of the accused for purposes of
identification by its witnesses which is vital for the
conviction of the accused. Such waiver of a right of the
accused does not mean a release of the accused from his
obligation under the bond to appear in court whenever so
required. The accused may waive his right but not his
duty or obligation to the court.”
So, you can waive your right but not your duty. That is
one of the conditions in the bond under Rule 114, Section
2 [b] – “the accused shall appear before the proper court
whenever so required by the court or these Rules.”

Q: Now, what happens if during the trial, the accused did
not show up but he was notified? Can the trial proceed
without him?
A: YES, 2nd sentence of paragraph [c] provides, “The
absence of the accused without justifiable cause at the
trial of which he had notice shall be considered a waiver

222 SCRA 196 (1993)

HELD:
The prisoner cannot by simply escaping thwart his
continued prosecution and possibly eventual conviction
provided that:
1.

he has been arraigned;

2.

he has been duly notified of the trial; and

3.

his failure to appear is unjustified.

(But how can the prosecution establish that the accused
has been duly notified of the trial? How can you notify a
person who is hiding? And how can you say that his
failure to appear is unjustified?)
“The fugitive is deemed to have waived such notice
precisely because he has escaped, and it is also this
escape that makes his failure to appear at his trial
unjustified. Escape can never be a legal justification. His
escape will, legally speaking, operate to his disadvantage
as he will be unable to attend his trial, which will continue
even in his absence and most likely result in his
conviction.”

GIMENEZ vs. NAZARENO

160 SCRA 1 (1988)

FACTS:
The accused is arraigned, then he escaped from jail. The
prosecution moved for the trial to proceed without him –
trial in absentia. So the prosecution presented all its
witnesses, and then it rested and submitted the case for
decision based on the prosecution’s evidence alone –

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parang ex-parte ba. The judge said “NO, we will have to
hear the accused. Trial in absentia means the prosecution
can present its evidence without him but the case will not
be decided until we catch him because we have to hear
him.” The prosecution went to the SC.
ISSUE #1:
Is the court’s interpretation of trial in absentia correct?
HELD:
NO. Definitely, that is not the meaning of trial in absentia.
Pagtapos na, eh di tapos na! why wait for the accused?
However, there are questions. Does an accused, who has
been duly tried in absentia retain his rights to present
evidence on his behalf and to confront and cross-examine
witnesses who testified against him? The court said that,
“Upon the termination of a trial in absentia, the court has
the duty to rule upon the evidence presented in court.
The court need not wait for the time until the accused
who escape from custody finally decides to appear in
court to present his evidence and cross-examine the
witnesses against him. To allow the delay of proceedings
for this purpose is to render ineffective the constitutional
provision on trial in absentia.”

But now, the guideline is clearer – the accused can be
allowed to defend himself in person “when it sufficiently
appears to the court that he can properly protect his
rights without the assistance of counsel.”
Q: Now, I will expand the question: Sabi ng offended
party, “Alright, ayaw ng akusado na may abogado. Ako
rin! Ayoko ko rin ng abugado! I’ll be the one to prosecute
him!” Eh meron mang private prosecutor? “Ah hindi na
kailangan ng private prosecutor! Siya personal, ako
personal din!” Can he do that?
A: Let’s go back to Rule 110, Section 16 on whether the
rights of the accused and the offended party are same:
“Where the civil action for recovery of civil liability is
instituted in the criminal action pursuant to Rule 111, the
offended party may intervene by counsel in the
prosecution of the offense.”
So their rights are different. The offended party cannot
intervene personally. The law will not allow it. He must
have a counsel. Sabihin niya, “Wala man akong pera
pang-hire ng private prosecutor?” Eh di yung fiscal! The
fiscal will be the one to come in. That is why we have
public prosecutors precisely to handle criminal cases.

ISSUE #2:
Why is it that an escapee who has been tried in absentia
does not retain his right to cross-examine witnesses and
to present evidence? How come those rights are lost?
HELD:
“By his failure to appear during the trial of which he had
notice, he virtually waived these rights. This Court has
consistently held that the right of the accused to
confrontation and cross-examination of witnesses is a
personal right and may be waived. In the same vein, his
right to present evidence on his behalf, a right given to
him for his own benefit and protection, may be waived by
him.” So an escape can be considered a waiver.
ISSUE #3:
If judgment is rendered as to the said accused and
chances are you would be convicted, would it not violate
his right to be presumed innocent and right to due
process?
HELD:
NO, he is still presumed innocent. “A judgment of
conviction must still be based upon the evidence
presented in court. Such evidence must prove him guilty
beyond reasonable doubt. Also, there can be no violation
of due process since the accused was given the
opportunity to be heard.” If the prosecution does not
present anything, he would be acquitted.

Now, the last sentence of paragraph [c]:
“Upon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court
that he can properly protect his rights without the
assistance of counsel.”
Take note that under the first sentence of [c] he can be
present and defend in person and by counsel. For
example, ayaw niya ng abogado? “I will defend myself!”
Anong mangyari diyan? Is the right to counsel waivable
by the accused? YES. The right to counsel may be waived
by the accused BUT the waiver must be clear, intelligent
and competent. (People vs. Ben, L-8320, Dec. 20, 1955)

Sec. 1 [c] – Right to Counsel during Trial
1. Right of the accused:
To be defended by counsel at every stage of the
proceeding from arraignment to promulgation of
judgment
2. Waiver of said right:
The accused, upon motion, may be allowed to defend
himself in person when it sufficiently appears to the
court that he can properly protect his rights without
the assistance of counsel.

1. Presence during trial
a. Waiver of appearance
Carredo v. People

183 SCRA 273

March 17, 1990

Facts:
After accused was arraigned,
manifestation which reads:

he

filed

a

written

“(T)he undersigned accused hereby waives his
appearance during the trial or any stage thereof and
he agrees that in case he fails to appear for trial
despite due notice, his absence will be deemed as
express waiver of his right to be present, and the
Honorable Court may proceed with the trial of his
case as if he were present. In this connection, he
admits that he could be identified by witnesses who
are testifying at the time that said accused was not
present.”
Issue:
May accused be ordered arrested by the court for nonappearance upon summons to appear for purposes of
identification?
Held:
Yes. While it has been stated in People v. Presiding Judge
[125 SCRA 269] that as an exception accused may not be
compelled to appear even for identification, it applies
only when the accused “unqualifiedly admits in open

7

court after his arraignment that he is the person named
as defendant in the case on trial,” no more no less. In this
case accused only admits that he can be identified by the
prosecution witnesses in his absence. He did not admit
that he is the very person named as defendant in the
case on trial. His admission is vague and far from
unqualified. He cannot therefore seek the benefit of the
exception recognized in People v. Presiding Judge.

b. Effect of failure to appear in one trial date
Crisostomo v. Sandiganbayan 456 SCRA 45
14, 2005

April

Issue:
When accused who is on bail fails to appear for a
particular trial date, does it amount to a waiver of
appearance for the subsequent trial dates?
Held:
No. Under Sec. 2(c), Rule 114 and Sec. 1(c), Rule 115 of
the Rules of Court, the non-appearance of the accused on
a particular trial date is merely a waiver of his right to be
present for trial on such date only and not for the
succeeding trial dates. It states that “the absence of the
accused without any justifiable cause at the trial on a
particular date of which he had notice shall be considered
a waiver of his right to be present during that trial.” It is
only when an accused under custody had been notified of
the date of the trial and escapes that he shall be deemed
to have waived his right to be present on said date and
on all subsequent trial dates until custody is regained.

c. Invalid trial in absentia
Parada v. Veneracion

269 SCRA 371
1997

March 11,

Facts:
Accused was charged with estafa and was out on bail.
While trial was going on, accused changed his address
notifying the court through his counsel as well as the
bonding company. When accused failed to appear during
a hearing because notice was sent to his old address, the
judge issued a warrant for his arrest, appointed a counsel
de oficio for him, ordered a trial in absentia, and
convicted him on the theory that he waived his right to
present evidence.

When may trial in absentia proceed? Where an accused
who has been arraigned escapes, should the court
suspend proceedings until accused is rearrested?
Held:
Under the Constitution, a “trial in absentia” may be had
when the following requisites are present: 1] that there
has been an arraignment; 2] that the accused has been
notified; and 3] that he fails to appear and his failure to
do so is unjustified.
The court need not wait for the time until the accused
who escape from custody finally decides to appear in
court to present his evidence and cross-examine the
witnesses against him. To allow the delay of proceedings
for this purpose is to render ineffective the constitutional
provision on trial in absentia. This is buttressed by Sec. 1
[c] of Rule 115 of the Rules on Criminal Procedure, which
states that when an accused under custody had been
notified of the date of the trial and escapes, he shall be
deemed to have waived his right to be present on said
date and on all subsequent trial dates until custody is
regained.

2. Right to Counsel
a. Meaning of the right
People v. Ferrer

406 SCRA 658

July 18, 2003

Question:
What does the right to counsel mean in a criminal case?
Answer:
The right to counsel must be more than just the presence
of a lawyer in the courtroom or the mere propounding of
standard questions and objections. It means that the
accused is amply accorded legal assistance extended by
a counsel who commits himself to the cause for the
defense and acts accordingly. It assumes an active
involvement by the lawyer in the proceedings,
particularly at the trial, his bearing constantly in mind of
the basic rights of accused, his being well-versed on the
case, and his knowing the fundamental procedures,
essential laws and existing jurisprudence. The right of an
accused to counsel finds substance in the performance by
the lawyer of his sworn duty of fidelity to his client. It
means an efficient and truly decisive legal assistance and
not a simple perfunctory representation.

Issue:
b. Defense by fake lawyer

Was there a valid trial in absentia?

People v. Santocildes 321 SCRA 310
21, 1999

Held:
No. Under Sec. 14[2] of the Bill of Rights, the following
are the requisites of a valid trial in absentia: [1] accused
had already been arraigned; [2] he has been duly notified
of the trial; and [3] his failure to appear is unjustifiable. In
this case accused had not been duly notified of the trial
because notice of hearing was sent to his former address
despite the fact that he notified the court of his change of
address.

Issues:

160 SCRA 1

Facts:
Accused was charged and convicted of the crime of rape
and sentenced to reclusion perpetua. During trial, he was
represented by a certain Gualberto C. Ompong, who
turned out to be a non-lawyer. On appeal, he argues that
his right to counsel was violated.
Issue:
Is accused correct?

d. Valid trial in absentia
Gimenez v. Nazareno

December

Held:
April 15, 1988

Yes. The right of accused to counsel was violated, no
matter that the person who represented him had the
ability of a seasoned lawyer and handled the case in a
professional and skilful manner. This is so because an

8

accused person is entitled to be represented by a
member of the bar in a criminal case filed against him.
Unless he is represented by a lawyer, there is a great
danger that any defense presented will be inadequate
considering the legal skills needed in court proceedings.

present his side, particularly since he himself was present
during the four hearings. Clearly, such presence is a
strong indication that accused was interested in
defending himself.

e. Apppointment of counsel de oficio
c. Waiver of right
People v. Tulin 364 SCRA 10

August 30, 2001

People v. Larranaga

421 SCRA 530
2004

February 3,

Facts:

Facts:

Accused were tried for piracy. They were represented by
Tomas Posadas who presented and examined 7 witnesses
before the court discovered that he was a non-lawyer.
Their new lawyer, however, manifested that accused
were adopting the evidence adduced when they were
represented by a non-lawyer. Convicted by the trial court,
they now claim that their right to counsel was violated.

Accused, who are members of prominent families in
Cebu, were represented by counsel de parte during the
trial for kidnapping with rape. On account of the dilatory
motions for postponement, or motions to withdraw as
counsel, filed by their lawyers, the judge directed the
Public Attorney’s Office to act as counsel de oficio for
them.

Issue:

Issue:

Should the conviction be reversed?

Did the judge violate the right of the accused to counsel?

Held:

Held:

No. The law entitles the accused to be present and to
defend himself in person and by counsel at every stage of
the proceedings. However, it is also provided that rights
may be waived, unless the waiver is contrary to law,
public order, public policy, etc. The Rules also states that
“upon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court
that he can properly protect his rights without the
assistance of counsel. By analogy, it is amply shown that
the rights of accused were sufficiently and properly
protected by Tomas Posadas. He knew the technical rules
of procedure. Hence, there was a valid waiver of the right
to sufficient representation during the trial, considering
that it was unequivocally, knowingly, and intelligently
made with the full assistance of their new bona fide
lawyer.

No. There is no denial of the right where a counsel de
oficio was appointed during the absence of the counsel
de parte of accused, pursuant to the court’s desire to
finish the case as early as practicable under the
continuous trial system. Here, accused requested for 3
weeks to one month to look for new counsel. Such period
is unreasonable. Accused could have hired new lawyers at
a shorter time had they wanted to. The constitutional
guarantee of right to counsel does not mean that accused
may avoid trial by neglecting or refusing to secure
assistance of counsel and by refusing to participate in
trial. Otherwise, the pace of criminal prosecution will be
entirely dictated by the accused to the detriment of the
eventual resolution of the case.

f. Non-appointment of counsel de oficio
Sayson v. People

d. Non-appearance of counsel
People v. Diaz

311 SCRA 585

July 28, 1999

Facts:
Accused was convicted of raping his own daughter and
sentenced to death. It appears that after the prosecution
rested, the case was set for reception of defense
evidence. However, in all 4 settings counsel for the
accused failed to appear despite notice. This was treated
by the RTC as a waiver by the accused of his right to
present evidence, and it considered the case submitted
for decision.
Issue:
Does the absence of counsel amount to waiver of the
right of accused to be heard?
Held:
No. Accused has the right to be heard by himself and
counsel. He has also the right to present evidence.
Accordingly, denial of due process can be successfully
invoked where no valid waiver of rights has been made.
In this case, we find that under the circumstances, the
accused was denied due process when the successive
non-appearance of his counsel was construed as a waiver
of his right to present evidence. Since the imposable
penalty may be death, the RTC should have been more
circumspect in denying accused his opportunity to

166 SCRA 680
1988

October 28,

Issue:
Where an accused who is represented by a counsel de
parte appears for trial without his lawyer, is it incumbent
upon the trial judge to appoint a counsel de oficio for
him?
Held:
No. The duty of the court to appoint a counsel de oficio
when the accused has no counsel of choice and desires to
employ the services of one is mandatory only at the time
of arraignment [Rule 116, Sec. 6, Revised Rules of Court.]
This is no longer so where the accused has proceeded
with the arraignment and the trial with a counsel of his
choice but when the time for the presentation of the
evidence for the defense has arrived, he appears by
himself alone and the absence was inexcusable. At the
most, the appointment of a counsel de oficio in situations
like the present case is discretionary with the trial court,
which discretion will not be interfered with in the absence
of abuse.

g. Ineffective counsel
People v. Bermas

306 SCRA 135

April 21, 1999

Facts:

9

Accused, an indigent, was charged with rape, convicted
and sentenced to death. His first lawyer withdrew after
the direct examination of the victim and crossexamination was done by another de oficio lawyer who
only prepared for 10 minutes. The third de oficio lawyer
also wanted to withdrew but was prevailed upon by the
court and he presented the accused as witness, but later
also ceased to appear for unknown reasons.

i. Defending one’s self
People v. Sesbreno

314 SCRA 87
1999

September 9,

Facts:

Was the right to counsel of accused violated?

Accused was charged with murder. Being a practicing
lawyer, he insisted on representing himself. Despite
prodding by the court and an offer of the possibility of
assistance from the PAO, he handled his own defense and
was convicted.

Held:

Issue:

Yes. Accused was not properly and effectively accorded
the right to counsel. The right to counsel proceeds from
the fundamental principle of due process which basically
means that a person must be heard before being
condemned. The right to counsel must be more than just
the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The
right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who
commits himself to the cause of the defense and acts
accordingly. The right assumes an active involvement by
a lawyer in the proceedings, his bearing constantly in
mind of the basic rights of the accused, his being wellversed on the case and his knowing the fundamental
procedures, essential laws and existing jurisprudence.

Was the right to counsel of accused violated?

Issue:

363 SCRA 62

No. Accused acted as his own counsel. To allege now that
his right to be assisted by counsel was violated is to bend
the truth too far. The constitutional right of the accused to
counsel is not violated where he was represented by a
prominent and competent member of the Bar, namely
himself, even if there were others available. He is now
stopped from claiming that the trial court violated his
right to be represented by counsel of his own.

Sec. 1 (d) Right to Testify in his own Behalf
1. Right guaranteed
The accused has the right to testify as a witness in
his own behalf

h. “Intelligent counsel”
People v. Liwanag

Held:

August 15, 2001

Facts:
Accused was convicted of highway robbery with multiple
rape. During trial he was assisted by counsel de oficio, a
PAO lawyer. In the middle of the trial, he retained the
services of counsel de parte. After he was convicted by
the RTC, another lawyer filed the notice of appeal but
failed to file the appellant’s brief. Before the SC he was
represented by another counsel de oficio. He now claims
that his right to counsel was violated because his counsel
made insufficient cross-examination of the prosecution
witnesses, and failed to impeach the testimony of
complainant through the use of contradictory evidence.
Issue:
Does the right to counsel include the guarantee of an
intelligent counsel?
Held:
No. The “right to be assisted by counsel” does not
presuppose “the right to an intelligent counsel.” The
requirement is not for counsel to be intelligent, but to be
effective. While fairness is the object of Art. III, Sec. 14 (2)
of the Constitution, the assistance afforded by counsel to
an accused need only be in accordance with the
provisions of the Rules of Court and the Code of
Professional Responsibility. In the Philippine setting, a
counsel assisting an accused is presumed to be providing
all the necessary legal defences which are reasonable
under the circumstances in accordance with said norms.
Coupled with the presumption that counsel’s performance
was reasonable under the circumstances, as long as the
trial was fair in that accused was accorded due process
by means of an effective assistance of counsel, then the
constitutional requirement that an accused shall have the
right to be heard by himself and counsel is satisfied.

2. Condition for the exercise of such right:
He can be cross-examined on matters covered by
direct examination
[deemed a waiver
incrimination]

of

his

right

against

self-

3. Effect of silence on the part of the accused:
It shall not in any manner prejudice him

Right available only to natural individualsThis right applies only to natural individuals. Hence,
stated US v, White 322 US 694, a labor union official
cannot refuse to produce books and records of the union
in his custody and required by the court to be produced.
He cannot invoke the privilege against self-incrimination
by contending that the production of the books and
records would tend to incriminate himself and the
organization.

1. Waiver of right to testify
People v. Tagana

424 SCRA 620

March 4, 2004

Facts:
Accused, together with several others, was charged with
murder. During trial, his counsel manifested to the court
that he is invoking the defense of alibi and denial and was
adopting the arguments of one of his co-accused.
Thereafter, counsel for the accused rested. Later accused
was convicted. While his conviction was pending review
by the Supreme Court, he sent a handwritten letter to the
Presidential Action Center seeking help to reopen his case
which was duly indorsed to the Court. He claims that he
was never asked to give his statement and was never
given a chance to testify in court.

10

Issue:
Was accused deprived of his right to testify in his own
behalf?
Held:
No. While accused decries his alleged frustrated desire to
testify in court, this is now water under the bridge.
Accused had all the right and opportunity to do so. He
was properly represented by his counsel of choice and
there was no hindrance to his testifying except his own
volition. While his silence will not in any manner prejudice
him, he cannot now be heard to complain for his failure to
avail of his right to be a witness in his own behalf. If
accused felt that he was deprived of his rights, he could
have easily moved for new trial or reconsideration. He did
not.

This is the right of the accused to testify on his own
behalf. But he has no obligation to testify. If you connect
this to the next right – [e] to be exempt to be a witness
against himself (that is why you cannot compel him to
testify) – once he testifies on his own behalf, he waives
the privilege against self-incrimination and he can be
cross-examined like any other witness. He cannot say, “I
will testify but I refuse to be cross-examined.” That would
be unfair no?
So, you are waiving your right against self-incrimination if
you testify in your own behalf because the law is clear –
subject to cross-examination on matters covered by the
direct examination. You can be cross-examined on
matters covered by direct examination. Let’s go back to
Evidence.

Q: What is the rule on cross-examination?
A: Look at Rule 132, Section 6:
“Upon termination of the direct examination, the witness
may be cross-examined by the adverse party as to any
matters stated in the direct examination, or connected
therewith, with sufficient fullness and freedom from
interest or bias, or the reverse, and to elicit all important
facts bearing upon the issue.”
So,it is very broad – You can be cross-examined on
matters or connected with matters in the direct
examination with sufficient fullness and freedom, etc. –
very liberal! It is called the ENGLISH RULE on crossexamination.

Meaning, if he refuses to testify, that should not be taken
against him because of his right to remain silent. He can
testify if he wants to. Kung ayaw niya, puwede rin.
Admission by silence is not generally applicable.
ALTHOUGH there are one or two decisions of the SC
where it said that if the evidence presented by the
prosecution is overwhelming, the accused should testify.
One of these cases is the 1998 case of
PEOPLE vs. DELMENDO
ISSUE:
If the accused refuses to testify, can it be taken against
him?
HELD:
General Rule is NO. BUT the SC said in this case, “An
adverse inference may also be deduced from accused’s
failure to take the witness stand. While his failure to
testify cannot be considered against him, it may however
help in determining his guilt. The unexplained failure of
the accused to testify, under a circumstance where the
crime imputed to him is so serious that places in the
balance his very life and that his testimony might at least
help in advancing his defense, gives rise to an inference
that he did not want to testify because he does not want
to betray himself.”
“An innocent person will at once naturally and
emphatically repel an accusation of crime, as a matter of
self-preservation, and as precaution against prejudicing
himself. A person’s silence, therefore, particularly when it
is persistent, may justify an inference that he is not
innocent. Thus, we have the general principle that when
an accused is silent when he should speak, in
circumstances where an innocent person so situated
would have spoken, on being accused of a crime, his
silence and omission are admissible in evidence against
him. Accordingly, it has been aptly said that silence may
be assent as well as consent, and may, where a direct
and specific accusation of crime is made, be regarded
under some circumstances as a quasi-confession.”

[e] To be exempt from being compelled to be a
witness against himself.
This is the right against self-incrimination – Nemo tenetur
seipsum accusare.

The AMERICAN RULE on cross-examination is
different – the witness can be cross-examined ONLY on
matters stated in the direct examination.

1. Mechanical acts

In the Philippines, we followed the English Rule because
of Rule 132, Section 6. However, it seems the American
Rule on cross-examination is applied, as an exception,
when you are talking about cross-examining an accused
in a criminal case because of paragraph [d] – subject to
cross-examination on matters covered by the direct
examination.

People v. Rondero

Q: Now, what is the effect if the accused does not want to
testify on his own behalf?
A: No unfavorable deduction can be drawn from the
neglect or refusal of an accused to testify. (U.S. vs. Luzon,
4 Phil. 343) His silence is not in any manner prejudice
him. (paragraph [d])

296 SCRA 371 [1998]

a. Taking of hair strands
320 SCRA 383
9, 1999

December

Facts:
Rondero was charged with rape with homicide. When the
corpse of the 9-year old victim was found, tightly gripped
in her right hand were hair strands. To enable the NBI to
conduct an examination on the hair strands, it sent a fax
message to the police that hair strands be pulled, no cut,
from Rondero, from the 4 regions of his head for
comparison with the specimen. By then Rondero was
detained and he now claims that his hair strands were
taken by the police without his consent.
Issue:
Was his right against self-incrimination violated?

11

Held:
No. What is proscribed by the right against selfincrimination is the use of physical or moral compulsion
to extort communication from the accused, and not the
inclusion of his body in evidence when it may be material.
For instance, substance emitted from the body of the
accused may be received as evidence in prosecution for
rape, and morphine forced out of his mouth may also be
used as evidence against him. Consequently, although
Rondero insists that hair samples were forcibly taken from
him and submitted to the NBI for forensic examination,
the hair samples may be admitted in evidence against
him for what is proscribed is the use of testimonial
compulsion or any evidence communicative in nature
acquired from him under duress.

b. Examination of sperm specimen
People v. Yatar

428 SCRA 504

May 19, 2004

Facts:
Accused was convicted of rape with homicide. Among the
evidence presented was the testing of the DNA of the
sperm specimen from the vagina of the victim, which was
identified to be that of the gene type of the accused.
Accused contends that the blood sample taken from him
as well as the DNA tests were conducted in violation of
his right against self-incrimination.
Issue:
Was the right of accused not to be a witness against
himself violated?
Held:
No. The kernel of the right against self-incrimination is not
against all compulsion, but against testimonial
compulsion. The right against self-incrimination is simply
against the legal process of extracting from the lips of the
accused an admission of guilt. Hence, a person may be
compelled to submit to fingerprinting, photographing,
paraffin, blood and DNA tests, as there is no testimonial
compulsion involved. It must also be noted that the
accused in this case submitted himself for blood sampling
that was conducted in open court in the presence of
counsel.

2. Searching inquiry and self-incrimination
People v. Besonia

422 SCRA 210
2004

February 5,

Facts:
Accused pleaded guilty to 2 counts of murder. The RTC
conducted a searching inquiry into the voluntariness and
full comprehension of the consequences of his guilty plea.
In the course of the questioning, accused admitted that
he shot the victims with a .38 caliber because they were
planning to kill him. On automatic review of the death
sentences, accused claims that his admissions and
confessions violated his right not to testify against
himself.
Issue:

extracting from the suspect testimony that may convict
him and to avoid a person subjected to such compulsion
to perjure himself for his own protection. It does not apply
where, as in these cases, the testimony was freely and
voluntarily given by the accused himself without any
compulsion from the agents of the State. There is nothing
in the records that would indicate that accused was
forced, intimidated, or compelled by the trial court or by
anybody into admitting the crimes. At any rate, his plea
of guilty and confession or admissions during the
searching inquiry cannot be the sole basis for his
conviction.

Take note that the right of the accused against selfincrimination is not limited to testimonial evidence.
According to the SC, it refers not only to testimonial
compulsion but also to production by the accused of
incriminating documents and things. (Villaflor vs.
Summers, 41 Phil. 62) So you cannot subpoena his
personal documents.
There was a tricky question in the Bar exam in the past:
PROBLEM: The accused is charged with falsification for
writing a falsified letter. The prosecution presented it as
evidence that this letter was written by the accused. The
accused said, “No, that is not my handwriting.” On crossexamination, he was asked to write on a piece of paper as
dictated. The defense object on the ground of violation of
the right to self-incrimination. Rule on the objection.
ANSWER: The objection should be overruled. The case is
not covered by the right against self-incrimination. He can
be compelled because he testified that it is not his
handwriting. From that moment he waived his right
against self-incrimination. It is unfair that you say it is not
your signature and I have no way of telling you to give
me a specimen.

Q: How is the right against self-incrimination waived?
A: The privilege is waivable by the accused taking the
stand and testifying as a witness or by freely answering
the incriminating questions put to him. (U.S. vs. Grant, 18
Phil. 122; U.S. vs. Rota, 9 Phil. 426) Or by not objecting.

Q: What is the reason for the right of an accused against
self-incrimination?
A: The rule was established on the ground of public
policy, because if the accused were required to testify, he
would be placed under the strongest temptation to
commit perjury, and of humanity, because it would
prevent the extortion of confession by duress. (U.S. vs.
Navarro, 3 Phil. 143) So, if you require him to testify,
chances are he will lie.
That is why according to former U.S. SC Justice Black,
“The accused should not be fried by his own fat. [e di
cooking oil!] No sane man will burn his own shirt nor he
will get a stone to hit his own head. The privilege against
self-incrimination is one of the great landmarks in man’s
struggle to make himself civilized. We do not make even
the most hardened criminal sign his own death warrant or
dig his own grave.”

Is the contention correct?
Held:
No. The right against self-incrimination is intended to
prevent the State, with all its coercive powers, from

Our own SC also followed that kind of explanation through
Justice Reynato Puno in the 1994 case of
MAPA vs. SANDIGANBAYAN

231 SCRA 783

12

HELD:

Facts:

“The days of inquisitions brought about the most
despicable abuses against human rights. Not the least of
these abuses is the expert use of coerced confessions to
send to the guillotine even the guiltless. To guard against
the recurrence of this totalitarian method, the right
against self-incrimination was ensconced in the
fundamental laws of all civilized countries.”

The RTC convicted the accused of murder based mainly
on an affidavit which was presented, marked and offered
by the prosecution. The affiant, however, did not testify
during trial.
Issue:
Was the right to confrontation of accused violated?
Held:

(f) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize as
part of its evidence the testimony of a witness who
is deceased, out of or can not with due diligence be
found in the Philippines, 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 the opportunity to cross-examine him.

(f) Right to Confrontation
1. Right guaranteed:
The accused has the right to confront and crossexamine the witnesses against him at the trial
2. Additional benefit granted by Sec. 1[f] – Either
party may use as evidence testimony of a witness who is
not present during trial, provided:




Said witness is:
a.

Deceased,

b.

out of or can not with due diligence be
found in the Philippines,

c.

Unavailable, or

d.

Otherwise unable to testify; and

Said testimony was given by the witness in
another case or proceeding:
1. judicial or administrative, and
2. involving the same parties or subject

matter; and


The adverse party had the opportunity to crossexamine said witness

1. Right to confrontation
People v. Ortiz-Miyake 279 SCRA 180
September 16, 1997
Question:

Yes. The admission of such hearsay evidence and the
conviction of accused on the basis thereof gravely
violated his constitutional right to meet the witness face
to face. Since the affiant never took the stand during the
trial, his sworn statement is absolutely inadmissible in
evidence for being hearsay. The constitutional right to
confrontation precludes reliance on affidavit. Such a
constitutional safeguard cannot be satisfied unless the
opportunity is given the accused to test the credibility of
any person, who, by affidavit or deposition would impute
the commission of an offense to him. It would be to
disregard one of the most valuable guarantees of a
person accused if solely on the affidavits presented, his
guilt could be predicated.

3. Death of witness
People v. Narca

275 SCRA 696

July 21, 1997

Facts:
After the prosecution witness testified, accused moved for
deferment of her cross-examination. Before the
scheduled date of her cross-examination, the witness
died.
Issue:
Must her testimony on direct examination be expunged
from the records?
Held:
No. Where death prevents the cross-examination under
such circumstances that no responsibility of any sort can
be ascribed to the plaintiff or the witness, it seems a
harsh measure to strike out all that has obtained in the
direct examination. Besides, mere opportunity and not
actual cross-examination is the essence of the right to
cross-examine. Accused lost such opportunity when he
sought the deferment of his cross-examination of the
witness, and he only has himself to blame in forever
losing that right by reason of her demise.

4. Recalling witness for cross-examination
a. Burden of recalling witness

What are the purposes of the right to confrontation?

People v. Digno, Jr.

Answer:
The right to confrontation has two purposes: first, to
secure the opportunity of cross-examination; and, second,
to allow the judge to observe the deportment and
appearance of the witness while testifying.

250 SCRA 237
1995

November 23,

Issue:
Where a witness for the prosecution has not been crossexamined after her testimony, who has the burden of
ensuring that she is cross-examined at another time?
Held:

2. Affidavit as evidence
People v. Santos

139 SCRA 583
1985

November 11,

It should be the counsel for the opposing party who
should move to cross-examine plaintiff’s [prosecution]
witnesses. It is absurd for the plaintiff [prosecutor]
himself to ask the court to schedule the crossexamination of his own witnesses because it is not his

13

obligation to ensure that his deponents are crossexamined. Having presented his witnesses the burden
shifts to his opponent who must now make the
appropriate move.

Issue:

b. Discretion of the judge to recall

Held:

People v. Ortillas

428 SCRA 659

May 20, 2004

Facts:
After the only prosecution eye-witness to the murder
testified on direct examination, counsel for the accused
moved for postponement. Thereafter, counsel withdrew
and the witness was never subpoenaed nor presented for
cross-examination until the defense rested. In fact, a
motion by the new counsel of accused to cross-examine
the witness was denied by the trial court. Eventually, the
judge convicted accused based mainly on the testimony
of the witness.
Issue:

Held:
Yes. Under Rule 115, Sec. 1(e) of the Revised Rules of
Court, the accused has the right “to confront and crossexamine the witnesses against him at the trial.” The
refusal of the judge to give opportunity to the new
counsel of accused to cross-examine prosecution witness
on the ground that prosecution had already rested its
case, is patently a grave abuse of discretion on his part.
While it is well within the trial court’s discretion to allow
the recall of witness, under the foregoing circumstances,
the judge should have known that the interest of justice
required that accused should have been given the
opportunity to cross-examine, as it was not his fault that
the witness had not been cross-examined. While a
petition for certiorari could have been duly availed of by
counsel for accused to rectify the judge’s grave abuse of
discretion, accused should not be made to suffer for the
failure of his counsel to do so; as a layman, he could not
have known better as to what must be done under the
circumstances.

c. Recalling complainant for cross-examination
150 SCRA 617

June 10, 1987

Issue:
Did the court abuse its discretion in denying a motion of
new counsel to recall private complainant in a rape case
for further cross-examination?
Held:
No. There was no manifest abuse of discretion in refusing
to allow or recall complainant to the witness stand for
additional cross-examination on account of a newly
retained counsel. The complainant had already
experienced great embarrassment in narrating the sexual
abuses on her. To allow her to be recalled to the witness
stand in spite of a previous extensive cross-examination
would be tantamount to harassment.

5. Testimony in preliminary investigation
a. Testimony of witness who died
De Leon v. People

Yes. By the express provision of Sec. 1(f) Rule 115 of the
Rules of Court, the testimonies given by witnesses during
the preliminary investigation of the case on trial should
be admitted into evidence when such testimony was
taken by question and answer in the presence of
defendant or his attorney, and there was an opportunity
for the defendant to cross-examine the witness who is
dead or incapacitated to testify or cannot with due
diligence be found in the Philippines.

b. Testimony of accused given without counsel
People v. Abano

Does the judgment unduly deprive accused of his right to
cross-examine the witness?

People v. Dela Cruz

May the testimony of a witness taken during the
preliminary investigation be used in evidence against the
accused where said witness died before he could testify
at the trial?

210 SCRA 151

June 22, 1992

145 SCRA 555
1986

November 14,

Issue:
May the testimony of accused given in the course of a
preliminary investigation without the assistance of
counsel be used as evidence against her during the trial?
Held:
No. The rule against self-incrimination positively intends
to avoid and prohibit the certainly inhuman procedure of
compelling a person “to furnish the missing evidence
necessary for his conviction.” The rule may apply even to
a co-accused in a joint trial. The situation would have
been different had accused been assisted by counsel
during the preliminary investigation. For then, she could
have availed herself of legal advice on when to refrain
from answering incriminating questions. The absence of
counsel when she appeared as witness during the
preliminary investigation is an irreparable damage which
rendered inadmissible accused’s alleged confession.

6. Waiver of right to confrontation
Alonte v. Savellano, Jr. 287 SCRA 245
March 9, 1998
Facts:
After accused was arraigned, the prosecution presented
the rape victim who identified her affidavit of desistance
and reaffirmed that she had no further interest in
prosecuting accused. The judge then asked clarificatory
questions to determine the truth of both her affidavitcomplaint and affidavit of desistance and whether they
were voluntarily executed. Counsel for the accused did
not anymore cross-examine the witness. The prosecutor
then moved to dismiss the case as she could no longer
prove the guilt of the accused. Later, the court convicted
accused of rape and sentenced him to reclusion
perpetua.
Issue:
Was the right of the accused to cross-examine the
witness against him violated?
Held:
Yes. No trial was conducted based on the procedure in the
Rules of Court and accused was not given his full day in
court. It cannot be argued that accused waived his right

14

to confront and cross-examine the witness because the
existence of the waiver must be shown to have been
done knowingly and with sufficient awareness of the
consequence. The case should be remanded for further
proceedings.

persuasive in your talk. These are the psychological
reasons behind that.

People v. Nadera

A: The following:

324 SCRA 490

February 2, 2000

Q: What are the EXCEPTIONS to the right of the accused
to confront and examine witnesses against him?

Facts:

1.

After the rape victim testified, the following dialogue
occurred:

Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can
not with due diligence be found in the Philippines,
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 the
opportunity to cross-examine him.

Court:

Any cross?

Atty. Brotonel: If Your Honor please, we are
not conducting any cross-examination, because this
representation, from the demeanor of the witness, is
convinced that she is telling the truth.
Issue:
Was the right of the accused to cross-examine the
witness violated?
Held:
Yes. Atty. Brotonel’s decision not to cross-examine the
victim is a glaring example of his manifest lack of
enthusiasm for his client’s cause. It may be that defense
counsel personally found the testimony to be believable.
Nevertheless, he had the bounden duty to scrutinize
victim’s testimony to ensure that the constitutional right
of the accused to confront and examine the witnesses
against him was not rendered for naught.
Q: Is the right to confront and cross-examine the
witnesses against him waivable?
A: YES as ruled by the SC in the case of GIMENEZ VS.
NAZARENO, (160 SCRA 1), such right is waived if the
accused decides to run away, jumps bail, or disappears –
he is automatically waiving the right to confront and
cross-examine the witnesses against him.

Q: Now what is the reason behind this right? Why is there
such a right?
A: It is intended to prevent the conviction of an accused
upon mere depositions and affidavits; to preserve the
right of the accused to test the recollection of witnesses
against him; and to enable the court to observe the
demeanor of the witnesses who are testifying. (Dowdell
vs. U.S., 221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413)
In Evidence those are the important factors for the court
to gauge the credibility of witnesses. Demeanor – their
manner of testifying. How can the court exercise that
option if he does not even see the witnesses? So more or
less, that is the reason behind it. To borrow the language
of an American justice commenting on this issue, “It
ensures that convictions will not be based on the charges
of unseen and unknown, hence unchallengeable
individuals".
Another Justice, Justice Scalia, he is still an incumbent of
the Federal Supreme Court, describing this right, he said,
“It is always more difficult to tell a lie about a person to
his face than behind his back, and even if the lie is told, it
will often be told less convincingly.” Meaning, it is easier
to tell a lie ba against somebody if he is not in front of
you. Pero pagkaharap na, parang alanganin kang
magsinungaling eh. And even if you still tell a lie, it
becomes not so convincing if you will lie about a person
in front of you. But if he is not there, you become very

Second portion of paragraph [f]:

Sometimes there is no choice. Now, one good
example where the testimony of a witness is
admissible even if he does not appear in the trial is
when the witness is about to die. Malapit ng
mamatay, so you need to take his testimony in
advance. In civil cases we call it deposition. In the
criminal procedure, deposition is called conditional
examination of a witness. That is governed by Rule
119 Sections 12, 13, and 15.
2.

when there is a separate civil action filed against
the accused by the offended party and he made
a reservation

Normally, the prosecution witnesses in the criminal
case are also the witnesses for the plaintiff in the
civil case. Assuming nauna ang trial ng civil case,
these witnesses testified during the trial of the civil
case, they were cross-examined by the lawyer of the
defendant who is also the accused in the criminal
case. Now, under the law, when the criminal case is
tried, these witnesses have to testify again in the
criminal case, practically they will have to repeat
their testimony. The trouble is, in the meantime,
some of these witnesses died.

Q: Can the testimony recorded in the civil case be now
admissible in the criminal case when there is no more
confrontation there?
A: Yes. because that is the exception, “when the
testimony of the witness who is now deceased, given in
another case or proceeding, judicial or administrative,
involving the same parties and subject matter, the
adverse party having the opportunity to cross examine
him.”

As a matter of fact, this is also considered as one of the
exceptions to the Hearsay Rule. It is the 11th exception to
the Hearsay Rule. Try to connect this with Rule 130 on
Evidence. How many exceptions are there to the Hearsay
Rule? eleven (11) iyan eh – starting from dying
declaration. That is the last exception – testimony or
deposition at a former trial or proceeding. Yaan! That is
considered as an exception to the right against
confrontation.
The exceptions to the hearsay rule are
likewise exceptions to this right of the
accused. (U.S. vs. Gil, 13 Phil. 530)

15

If there are 11 exceptions to the hearsay rule, all of them
are also exceptions to this. Like dying declaration, how
can you cross-examine iyung taong patay na. So there
are 11 exceptions to the right to confront and crossexamine the witnesses against him which are all found in
the rules on evidence.

1. The factors, among others, which should be considered
in determining whether to grant a continuance are as
follows:

Q: One last point, does the right to confront and crossexamine the witnesses against you, include your right to
know their names and addresses in advance?

(b) whether the case taken as a whole is so novel, so
unusual and so complex, due to the number of
accused or the nature of the prosecution or
otherwise, that it is unreasonable to expect adequate
preparation within the periods of time established by
this Act (Sec. 11, Speedy Trial Act)

A: NO, the accused has no such right because the case of
the prosecution might be endangered if the accused were
to know the prosecution witnesses in advance, for known
witnesses might be subjected to pressure or cowered not
to testify. (People vs. Palacio, L-13933, May 25, 1960) So,
you confront them during the trial, not now.

(g) To have compulsory process issued to secure
the attendance of witnesses and production of
other evidence in his behalf.

a. Factors to determine violation
Yulo v. People

452 SCRA 705

March 4, 2005

When is the right to speedy trial deemed violated?
356 SCRA 225

April 4, 2001

Question:
What are the requisites before an accused may be
allowed to avail of the right to compulsory process?
Answer:
The 1973 and 1987 Constitutions expanded the right to
compulsory process which now includes the right to
secure the production of evidence in one’s behalf. Thus,
the movant must show: [a] that the evidence is really
material; [b] that he is not guilty of neglect in previously
obtaining the production of such evidence; [c] that the
evidence will be available at the time desired; and [d]
that no similar evidence could be obtained.

Q: Suppose my witness is somewhere there in Cagayan
de Oro, can I secure a subpoena to compel him when
under the rules on subpoena a witness is not bound if he
resides more than 100 kilometers?
A: That has already been answered in the cases of
PEOPLE VS. MONTEJO and MILLORCA VS. QUITAIN. The SC
said that the 100-km limitation (formerly 50 kms.) does
not apply when you are talking of witnesses for the
defense in a criminal case because of the Constitutional
right to have compulsory process issued to secure the
attendance of witnesses in his behalf. That right cannot
be precluded by provisions in the Rules of Court.

(h) To have speedy, impartial and public trial.
There are actually three rights here:
1.

the right to a speedy trial;

2.

the right to an impartial trial; and

3.

the right to a public trial.

Speedy trial

2. No continuance shall be granted because of general
congestion of the court's calendar, or lack of diligent
preparation or failure to obtain available witnesses on the
part of the public prosecutor (ibid).

Issue:

Requisites
People v. Chua

(a) whether the failure to grant such continunace in
the proceeding would be likely to make a
continuation of such proceeding impossible, or result
in a miscarriage of justice.

Answer:
The right to speedy trial is deemed violated only when
the proceedings are attended by vexatious, capricious,
and
oppressive
delays,
or
when
unjustified
postponements of the trial are asked for and secured, or
when without cause or justifiable motive a long period of
time is allowed to lapse without the party having his case
tried. To determine whether the right has been violated,
the following factors may be considered: [1] the length of
the delay; [2] the reasons for such delay; [3] the
assertion or failure to assert such right by the accused,
and [4] the prejudice caused by the delay.

b. Justifiable delays
Sumbang v. Gen. Court Martial 337 SCRA 227
August 3, 2000
Facts:
Sumbang was a member of the Philippine Constabulary
accused before a court martial of killing a civilian on May
29, 1988. In view of the enactment of R.A. 6975 otherwise
known as the Philippine National Police Law, the
composition of the court martial was changed so that the
case remained pending for years. On Sep. 29, 1999,
Sumbang moved for the dismissal of the case on the
ground of violation of the right to speedy trial.
Issue:
Was the right of Sumbang to speedy trial violated?
Held:
No. The determination of whether an accused has been
denied the right to speedy trial must have to depend on
the surrounding circumstances of each case. Although it
is unfortunate that it took about 8 years from 1991 before
the trial resumed in 1999, the delay does not amount to
violation of the right considering that it could not be
attributable to the prosecution. The delay was due to the
changes in the composition of the court martial. Notably,
from the time Sumbang’s motion to dismiss was filed in
1991, he did not take action to assert his right. Thus, the

16

supervening delay seems to have been without his
objection hence impliedly with his acquiescence. The
right to speedy trial may be waived.

2. Impartial trial
a. Widespread media publicity
People v. Sanchez

302 SCRA 21
1999

January 25,

Facts:

b. Live coverage of trial

Mayor Sanchez was convicted of 7 counts of rape with
homicide. Considering the position of accused, the trial
was accompanied by widespread media coverage. On
appeal, Sanchez claims that his right to a fair trial was
violated due to the intense publicity.
Issue:
Does intensive publicity of a trial violate the right to a fair
trial?
Held:
No. The right of an accused to a fair trial is not
incompatible with a free press. Pervasive publicity is not
per se prejudicial to the right of an accused to fair trial. It
does not by itself prove that the publicity so permeated
the mind of the trial judge and impaired his impartiality.
At best accused can only conjure possibility of prejudice
on the part of the trial judge due to the barrage of
publicity. But the test is not the possibility of prejudice
but actual prejudice. To warrant a finding of prejudicial
publicity, there must be allegation and proof that judges
have been unduly influenced, not simply that they might
be. Accused must discharge this burden. In this case,
there is no proof that the judge acquired a fixed opinion,
or actual bias as a consequence of extensive media
coverage.

Estrada v. Desierto

been suffered and then shifts the burden to the panel of
investigators to prove that the impartiality of its members
has not been affected by said publicity. Such a rule will
overturn our case law that pervasive publicity is not per
se prejudicial to the right of an accused to fair trial. For
this reason, we continue to hold that it is not enough for
the former President to conjure possibility of prejudice but
must prove actual prejudice on the part of his
investigators for the Court to sustain his plea.

356 SCRA 109

April 3, 2001

Facts:
Former President Estrada seeks a reconsideration of the
decision of the Supreme Court declaring that having
resigned from the presidency, he may be prosecuted for
Plunder. Among others, he contends that his right to an
impartial trial has been affected by the prejudicial pretrial publicity of the proceedings before the Ombudsman.
He also points to the alleged hate campaign launched by
some newspapers so that the prosecution and the
judiciary can no longer assure him of a sporting chance.
He urges the Court to apply the rule on res ipsa loquitor.
Issue:
Has the former President’s right to fair trial been
violated?
Held:
No. The mere fact that the proceeding was given a day to
day coverage does not prove that the publicity so
permeated the mind of the tribunal and impaired his
impartiality. To warrant a finding of prejudicial publicity,
there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be. In
this case, the former President has failed to adduce any
proof of actual prejudice developed by the members of
the Panel of Investigators of the Ombudsman. The test of
actual prejudice cannot be replaced with the rule of res
ipsa loquitur. The latter rule assumes that an injury has

Re: Request Radio-TV ...,
360 SCRA 248

June 29, 2001

Facts:
The Kapisanan ng mga Broadkaster ng Pilipinas, an
association representing duly franchised and authorized
television and radio networks, requested the Supreme
Court to allow live media coverage of the trial of former
President Estrada. The request was anchored on the need
to assure the public of full transparency in the
proceedings. In effect, the request seeks reconsideration
of the 1991 resolution of the Court which barred live
media coverage of all court proceedings.
Issue:
Should live media coverage of court trials be allowed?
Held:
No. The issue involves the weighing out of constitutional
guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights
of the accused, on the other hand, along with the
constitutional power of a court to control its proceedings
in ensuring a fair and impartial trial. When these rights
race against each other, the right of the accused must be
preferred. With the possibility of losing his life or liberty, it
must be ensured that accused receives a verdict decreed
by an unprejudiced judge. Television coverage, however,
can impair the testimony in criminal trials, can affect the
performance of the judge, and can destroy the case of
the accused in the eyes of the public. Accordingly, to
protect the parties’ right to due process, to prevent the
distraction of the participants in the proceedings and in
the last analysis, to avoid miscarriage of justice, the
request is denied.
Re: Request for Live...,
365 SCRA 62

September 13, 2001

Facts:
The Secretary of Justice seeks a reconsideration of the
resolution denying permission to televise and broadcast
live the trial of former President Estrada before the
Sandiganbayan. Among others, he argues that if there is
a clash between the rights of the people to public
information and the freedom of the press, on the one
hand, and the right of the accused to fair trial, it should
be resolved in favour of the right of the people, because
the people, as repository of democracy are entitled to
information; and that live media coverage is a safeguard
against attempts by any party to use the courts as
instruments for the pursuit of selfish interest.
Issue:
Should the previous order be reconsidered?
Held:

17

No. However, because of the significance of the trial and
the importance of preserving the records, there should be
an audio visual recording of the proceedings. The
recordings will not be for live or real time broadcast but
for documentary purposes. Only later will they be
available for public showing, after the Sandiganbayan
shall have promulgated its decision. The master film shall
be deposited in the National Museum and the Records
Management
and
Archives
Office
for
historical
preservation and exhibition pursuant to law. The audiovisual recording shall be made under the supervision and
control of the Sandiganbayan.

Q: What do you mean by speedy trial? Meaning, no
postponements? not even one postponement?
A: NO. That is not the interpretation. In the case of
ALVIZO vs. SANDIGANBAYAN

220 SCRA 55

HELD:
It must not be lost sight of that the concept of speedy
disposition of cases is a RELATIVE term and must
necessarily be a flexible concept. Delays per se are
understandably attendant to all prosecutions and are
constitutionally permissible with the monition that the
attendant delay must NOT be OPPRESSIVE. [Hindi palagi.
Pa-minsan-minsan okay lang man ba] Hence, the
doctrinal rule is that in the determination of whether or
not that right has been violated, the factors that may be
considered and balanced are:
a.

the length of delay;

b.

the reasons for such delay;

c.

the assertion or failure to assert such right by
the accused; and

d.

the prejudice caused by the delay.

Q: What are the remedies of an accused whose rights to a
speedy trial is being violated because the prosecution
keeps on postponing the case? How do you invoke this
right to speedy trial?
A: There are three (3) possible remedies:

Q: When is trial impartial?
A: There should be no bias otherwise, the trial will not be
fair – you are not given due process. If the court or the
judge has already pre-ordained your guilt. “Every litigant
is entitled to nothing less than the cold neutrality of an
impartial judge.” (Villapando vs. Quitain, January 20,
1977)

Q: Right to a public trial – this is one of the features of the
accusatorial system. What is the reason for public trial?
A: The requirement of public trial is for the benefit of the
accused, that the public may see that he is fairly dealt
with and not unjustly condemned, and that the presence
of spectators may keep his triers keenly alive to a sense
of responsibility and to the importance of their functions.
(1 Cooley, Constitutional Limitations, p. 647)
Meaning, everybody is on their toes. You don't want to
commit a mistake eh, mahihiya ka eh, maraming
nanonood. The judge, the prosecutor, the witnesses, the
defense counsel, everybody is careful because they are
watched by the public. Look at what happened in the
impeachment trial, everybody wants to be careful there
because, imagine how many millions of people are
watching you there on T.V.
Please connect this provision on Speedy Trial with Rule
119 Section 9 which is a new provision taken from the
Speedy Trial Act. What is the heading of Section 9 Rule
119? Remedy where accused is not brought to trial within
time limits. So there is such a provision. When your case
will not move, the accused may question the delay why
his case has not been set for trial. That is a new provision
taken from the Speedy Trial Act.

[i] To appeal in all cases allowed and in the manner
prescribed by law
Nature of the right to appeal
People v. de la Concha 388 SCRA 280
September 3, 2002
Question:
What is the nature of the right to appeal?

1.

The accused should OPPOSE the postponement
and insist on trial. If the court denies the
postponement and directs the prosecution to
proceed and cannot do so because he does not
have the evidence, the accused should move for
dismissal of the case on the ground of failure to
prosecute or insufficiency of evidence. (Jaca vs.
Blanco, 86 Phil. 452; Gandicela vs. Lutero, 88
Phil. 299; People vs. Diaz, 94 Phil. 714) The
dismissal is equivalent to an acquittal and there
is no way for that case to be brought back
because it will amount to double jeopardy.
(People vs. Diaz, 94 Phil. 714)

2.

If the court grants the postponement everytime
the fiscal asks for it, over the protest of the
accused, the latter’s remedy is mandamus to
compel dismissal of the case; (Mercado vs.
Santos, 66 Phil. 215)

3.

If the accused is restrained of his liberty, his
remedy is habeas corpus to obtain his freedom.
(Mercado vs. Santos, 66 Phil. 215; Conde vs.
Rivera, 45 Phil. 650)

Answer:
The right to appeal is but a statutory right, and the party
who seeks to avail of it must faithfully comply with the
rules. These rules are designed to facilitate an orderly
disposition of cases before the appellate courts; they
provide for a system under which suitors may be heard in
the correct form and manner at the prescribed time in an
orderly confrontation before a magistrate.

There is something you will notice here – all the rights of
the accused in this Rule, from [a] to [h], are also found in
the Constitution. These are all Constitutional rights except
the last – [i]. The right to appeal is purely statutory which
may be granted or withheld at the pleasure of the State.
(People vs. Ang Gioc, 73 Phil. 366)

SEC 6. Suspension by reason of prejudicial question. – A
petition for suspension of the criminal action based upon
the pendency of a prejudicial question in a civil action

18

may be filed in the office of the prosecutor or the court
conducting the preliminary investigation. When the
criminal action has been filed in court for trial, the
petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests. (6a)
(sec. 6 is discussed under Pre-Arraignment remedies of
the accused)

Trial Proper
Rule 119 TRIAL
SECTION 1.
Time Periods
1. Preparation time for trial
At least 15 days from the time a plea of not guilty is
entered

Did the court commit grave abuse of discretion in denying
the motion?
Held:
No. The determination of how many hearing days shall be
devoted to trial rests within the sound discretion of the
trial court. It does not appear that in setting the cases to
be heard twice a week, the Sandiganbayan violated Sec.
2, Rule 119 of the Rules of Court, which sets the limits to
the discretion granted to trial courts on the matter of trial
dates. The requirement of continuous trial is satisfied if
trial continues from day to day, is held on a weekly or
other short-term trial calendar, and, except as otherwise
authorized by this Court, is completed within 180 days
from the first day of trial. Corollarily, the “consultations”
referred to in the foregoing provisions does not
necessarily mean that the court has to secure first from
the prosecution and defense their approval before it can
set the date of hearing. To rule otherwise is to subject our
trial system to the control of the parties and their
counsel.

2. When trial shall commence
Within 30 days from receipt of pre-trial order
3. The above time periods shall not apply when a
shorter period of trial is provided by:
1. special laws, or
2. circulars of the Supreme Court

The new provisions are Section 3 up to Section 10:

SEC. 2. Continuous trial until terminated; postponements.
Trial
1. Trial should be continuous


Once commenced it shall continue from day to
day as far as practicable until terminated,



However, it may be postponed for a reasonable
period of time for good cause

2. Trial period:


General Rule – In no case shall the entire trial
period exceed 180 days from the first day of
trial,



Exception – when otherwise authorized by the
Supreme Court

3. The 180 day period shall not apply when a
shorter period of trial is provided by:
1. special laws, or

What shall be Excluded in Computing the Time
within which Trial must Commence
1. Any period of delay resulting from other
proceedings concerning the accused, including but
not limited to delay:
1. resulting from an examination of the physical and
mental condition of the accused,
2. resulting from proceedings with respect to other
criminal charges against the accused,
3. resulting from extraordinary remedies against
interlocutory orders,
4. resulting from pre-trial proceedings; provided, that
the delay does not exceed 30 days,
5. resulting from orders of inhibition, proceedings
relating to change of venue of cases or transfer from
other courts,

7. reasonably attributable to any period, not to
exceed 30 days, during which any proceeding
concerning the accused is actually under advisement

1. Requirement of continuous trial
October

Facts:
During the trial of former President Estrada for Plunder,
the prosecutors filed a motion with the Sandiganbayan
asking for “3 days hearing per week” to expedite
proceedings. The motion was denied, but the court set 2
days of hearing per week.
Issue:

SEC. 3. Exclusions.

6. resulting from a finding of the existence of a
prejudicial question, and

2. circulars of the Supreme Court

People v. Sandiganbayan 440 SCRA 206
12, 2004

There are many provisions here which are new in the
sense that they are found in the rules for the first time.
However, even before the new rules took effect, they
were considered as already existing provisions because
of the Speedy Trial Act and SC Circular 38-98.

2. Any period of delay resulting from the absence
or unavailability of an essential witness – an
essential witness shall be considered:


absent- when his whereabouts are unknown
or his whereabouts cannot be determined
by due diligence, and



unavailable – whenever his whereabouts are
known but his presence for trial cannot be
obtained by due diligence.

3. Any period of delay resulting from the:

19



mental incompetence of the accused to
stand trial, or



physical inability of the accused to stand
trial.

4. If the information is dismissed upon motion of
the prosecution and thereafter a charge is filed
against the accused for the same offense, any
period of delay:


from the date the charge was dismissed



to the date the time limitation would
commence to run as to the subsequent
charge had there been no previous charge.

5. A reasonable period of delay when the accused
is joined for trial:




with a co-accused:


over whom the court
has
not
acquired
jurisdiction, or



as to whom the time
for trial has not run,
and

no motion for separate trial has been
granted

6. Any period of delay:


resulting from a continuance granted by any
court:
1. motu proprio, or
2. on motion of either:





the accused, or



his counsel, or



the prosecution,

if the court granted the continuance on the
basis of its 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

1. Justified reasons for delay

421 SCRA 27

No. The right to speedy trial is deemed violated only
when the proceedings is attended by vexatious,
capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or
when without cause or justifiable motive a long period of
time is allowed to elapse without the party having his
case tried. None of these circumstances attended the
proceedings below.

b. Postponement due to illness of witness
De Zuruarregui v. Roesete 382 SCRA 1
May 9, 2002
Facts:
Two years after arraignment of the accused for
falsification of a private document, trial has not
commenced due to 15 postponements. Five were secured
upon agreement of the prosecution and the defense and
6 were on motion or due to non-appearance of the
accused. The last 2 postponements were secured by the
prosecution without objection from the accused because
complainant had to leave for abroad for a medical
treatment. On the last scheduled hearing, however, the
judge dismissed the case for failure of the prosecution to
present evidence.
Issue:
Was there a violation of the right of the accused to
speedy trial?
Held:
No. The right to speedy trial is a relative one, subject to
reasonable delays and postponements arising from
illness, as in the present case, where it was duly proven
that complainant had to undergo carotid operation.
Speedy trial means one that can be had soon after
indictment is filed as the prosecution can, with
reasonable diligence, prepare for trial. For this reason, in
determining the right of the accused to speedy trial,
courts should do more than a mathematical computation
of the number of postponements of the scheduled
hearings. What offends the right to speedy trial are
unjustified postponements which prolong trial for an
unreasonable length of time. This is not the case here.

c. Absence of proof of receipt of subpoena

a. Postponement to give way to other cases
People v. Billaber

Held:

January 26, 2004

Facts:
In a prosecution for estafa and illegal recruitment on a
large scale, the court set the initial trial on Dec. 15, 1992
but this was postponed to Dec. 22, 1992, for failure of
complainants to appear. The trial set Dec. 22, 1992 was
also reset upon agreement of the parties to Jan. 19, 1993.
The prosecution conducted the direct examination, but
cross-examination was moved to Jan. 28 and Feb. 2,
1993. The schedule on Jan. 28 was cancelled because by
mistake complainants left the courtroom. Thereafter, trial
proceeded as scheduled until the prosecution rested on
Nov. 24, 1993.

Tai Lim v. CA

317 SCRA 521

October 26, 1999

Facts:
Accused was charged with violation of the Dangerous
Drugs Act. Arraigned on Aug. 8, 1995, trial never
commenced despite the lapse of 1 year and 3 months
due to 11 postponements, 9 of which were secured by the
prosecution. The grounds for postponements ranged from
the absence of witnesses for the prosecution, absence of
the prosecutor and re-raffling of the case to another
branch.
Issue:
Must the case be dismissed on the ground of speedy
trial?

Issue:

Held:

Was there a violation of the right of the accused to
speedy trial?

No. The reasons for the prosecution’s postponements
were reasonable and were not intended merely to delay

20

the proceedings of the case. It would be unjust to pounce
on the absence of the witnesses as a basis for dismissing
the case when there was a valid excuse for their absence,
that is, there was no proof that they were duly served
with subpoena. The other reasons for postponements
were due to circumstances beyond the control of the
prosecution. The right of the accused to speedy trial
should not be utilized to deprive the State of a reasonable
opportunity of fairly prosecuting criminals.

SEC. 4. Factors for granting continuance.
Factors for Granting Continuance
1. Whether or not the failure to
continuance in the proceeding would:

grant

a



likely make a continuation of such proceeding
impossible, or



result in a miscarriage of justice; and

2. Whether or not the case taken as a whole is so
novel, unusual and complex:


due to the number of accused or the nature of
the prosecution, or



that it is unreasonable to expect adequate
preparation within the periods of time
established therein.

Continuance shall NOT be Granted for the following
Reasons:
1. Congestion of the court’s calendar,
2. Lack of diligent preparation, or
3. Failure to obtain available witnesses in the part of
the prosecutor

1. Disposition of motions for continuance
Marcos v. Ruiz

213 SCRA 177

Issue:
Did the judge abuse his discretion?
Held:
No. The trial and hearings of the case had long been
scheduled and if the accused chose to retain a new
counsel and to hand over the records of the case only
shortly before the trial for that day, then there can be no
other conclusion but that accused was merely trying to
delay the administration of justice as found by the trial
court. More so, as the prosecution had finished presenting
its case and it was the turn of the accused to present his
witnesses and his evidence. In any case, accused was
given a counsel de oficio who acted as his lawyer during
the presentation of the accused as witness. The
transcripts would show that the accused was given an
opportunity to be heard and afforded a fair trial.

SEC. 5. Time limit following an order for new trial.
Time Limit following an Order for New Trial
1. General Rule – trial shall commence within 30 days
from notice of the order granting a new trial
2. Exception – the court may extend the period,
provided:


The period becomes impractical due to
unavailability of witnesses and other factors, and



The extension shall not exceed 180 days from
notice of said order for a new trial

SEC. 6. Extended time limit.
Time Periods

Stage
of
Proceeding
Arraignment

September 1, 1992

Question:
How should motions for continuances be ruled upon?

Pre-trial

Answer:
Applications for continuances are addressed to the sound
discretion of the court which must be judicial and not
arbitrary. It is the guardian of the rights of the accused as
well as those of the people at large, and should not
unduly force him to trial, nor for light causes jeopardize
the rights or interests of the public. 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 alienable right to a
continuance.

SEC. 7. Public
imprisoned.

2. Hiring of new counsel
People v. Dela Cruz

150 SCRA 617

Trial

June 10, 1987

When it Must be Held
or Conducted
Within 30 days from the
date the court acquires
jurisdiction
over
the
person of the accused
Within 30 days from the
date the court acquires
jurisdiction
over
the
person of the accused
General Period – within
30 days from receipt of
pre-trial order
----------------------------------Extended
Period
–
within 80 days from
arraignment

Pertinent
Provision
Rule 116
Sec. 1(g)
Rule 118
Sec. 1
Rule 119
Sec. 1
Rule 119
Sec. 6

attorney’s duties where accused is

Procedure when the Accused is Imprisoned

Facts:

Situation

During the presentation of accused as witness, he hired a
new counsel who appeared and asked for postponement.
The judge denied the motion and assigned counsel de
oficio to present the witness.

The accused is:
1.
Preventively
detained,
either

Person-incharge
Public
attorney

Duty
He shall promptly
1.
undertake
to
obtain the presence

21

because
he
is
charged with a:
1.
bailable
crime
but
has no means
to post bail,
2. non-bailable
crime, Or
2. Serving a term of
imprisonment in any
penal institution

assigned
to
defend
the
accused

The custodian of
accused
receives
notice advising him
of the right of the
accused to demand
trial

Custodian of
the accused

The
accused/prisoner
informs
his
custodian that he
demands such trial
The public attorney
receives the above
notice
from
the
custodian of the
accused

Public
attorney
assigned
defend
accused

The
custodian
receives from the
public attorney a
properly supported
request
for
the
availability of the
accused/
prisoner
for purpose of trial

Custodian of
the accused

to

of the prisoner for
trial, or
2. 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
He shall promptly
advise
the
accused/prisoner of
the charge and of
his right to demand
trial
He
shall
cause
notice
to
be
promptly sent to the
public attorney of
the demand of the
accused/prisoner
He shall promptly
seek to obtain the
presence
of
the
accused for trial

He shall make the
accused/prisoner
available
accordingly

SEC. 8. Sanctions.
Sanctions and their Penalties

1. not exceeding P20,000 for privately
retained counsel of the accused
2. not exceeding P5,000 – for:
1. appointed counsel de oficio,
2. public attorney, or
3. public prosecutor;
2. Denial of the right of the defense
counsel or prosecutor to practice before
the court trying the case for a period not
exceeding 30 days;
3. Any appropriate criminal action; and
4. Other sanctions authorized under these
Rules

SEC. 9. Remedy where accused is not brought to trial
within the time limit.
When Accused is NOT Brought to Trial within Time
Limit
1. Time limits:


Accused must be arraigned within 30 days from
the date the court acquires jurisdiction over his
person [Rule 116, Sec. 1 (g)]



Pre-trial must commence within 30 days from
the date the court acquires jurisdiction over his
person [Rule 118, Sec. 1]



Trial must commence:
1. As a general rule – within 30 days from
arraignment [Rule 119, Sec. 1]
2. Under the extended period – within 80
days from arraignment [Rule 119 Sec. 6]

2. Effect when accused is not brought to trial
within the time limit:


If the accused files a motion to dismiss – the
information shall be dismissed



The dismissal shall be subject to the rules on
double jeopardy

1. Who are covered by Sec. 8:
1. Private counsel for the accused,
2. Public attorney, and
3. Public prosecutor
2. Acts of the above that may be sanctioned:


Knowingly allowing the case to be set for trial
without disclosing that a necessary witness
would be unavailable for trial,



Filing a motion solely for delay which he knows is
totally frivolous and without merit;



Making 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



Willfully failing to proceed to trial without
justification consistent with the provisions
hereof,

3. Penalties for commission of above acts:
1. A fine:

3. Ground for dismissal of the information:
Denial of the right of the accused to speedy trial
4. Effect if the accused fails to file a motion to
dismiss prior to trial:
It shall constitute a waiver of the right to dismiss under
this section

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 the right to
speedy trial guaranteed by section 14(2), article III, of the
1987 Constitution. (sec. 15, cir. 38-98)

Take note of Sections 9 and 10. Please correlate this on
the rights of the accused to speedy trial as mentioned in
Section 1[h] of Rule 115 on the rights of the accused.

22

SEC. 11. Order of trial.

cases required the application of any suitable proceeding
in accordance with Sec. 6 of Rule 135.

Order of Trial
1. Presentation of evidence by the prosecution to
prove:


the charge against the accused, and



the civil liability of the accused, [when deemed
instituted with the criminal case]

2. Presentation of evidence by the accused to
prove:


his defense, and



damages, if any, arising from the issuance of a
provisional remedy in the case

Assuming accused admitted the charges, Sec. 3(e) of
Rule 119 should have been applied. Conformably, a
modified order of trial is authorized whenever an accused
admits the charge but interposes a lawful defense. This
does not mean, however, that in such a case, trial could
be dispensed with altogether. A judge must nonetheless
ascertain whether the defense put up by the accused
could withstand judicial scrutiny. In other words, while the
burden of evidence is shifted to the accused to prove by
clear and convincing evidence that he is entitled to an
extenuating circumstance, the trial court is still dutybound to establish that the accused, in fact, did not incur
any liability relative to his admission. Needless to say, a
regular trial on the merits is necessary for this purpose.

3. Rebuttal evidence by the prosecution
unless the court, in furtherance of justice, permits it
to present additional evidence bearing upon the main
issue
4. Sur-rebuttal by the defense
Unless the court, in furtherance of justice, permits
them to present additional evidence bearing upon
the main issue
5. Admission of evidence of the parties
6. The case shall be submitted for decision unless
the court directs them to:


argue orally, or



submit written memoranda

When the Order of Trial may be Modified – When
the Accused:
1. admits the act or omission charged in the complaint or
information, BUT
2. interposes a lawful defense

388 SCRA 341 September
5, 2002

Facts:
Accused filed a motion to quash the 4 indictments for
violation of B.P. 22 against her on the ground of payment.
The judge set the case for hearing on the motion and
ordered her to present evidence. Later, the prosecution
presented evidence to support its opposition. Based on
the evidence, the judge convicted the accused, later
explaining that she wanted to avoid a “roundabout way of
disposing cases.”
Issue:

Sacay v. Sandiganbayan 142 SCRA 593
1986

Is the procedure proper?

Held:
No. Before an accused can be convicted of a crime
charged, it is essential that he be given the chance to
refute the allegations against him in a proper trial on the
merits and not simply in a hearing on an incident of the
case such as a motion to quash. The Rules of Court
prescribe the procedure to be followed in criminal cases
and the judge was not at liberty to disregard the rules on
the flimsy excuse that the peculiarity of the criminal

July 10,

Issue: May the prosecution present the affidavit of a
witness to serve as his direct testimony subject to crossexamination by counsel for the accused?
Held:
No. Rules governing the examination of witnesses are
intended to protect the rights of litigants and to secure
orderly dispatch of the business of the courts. Only
questions directed to the eliciting of testimony which,
under the general rules of evidence, is relevant to, and
competent to prove, the issue of the case, may be
propounded to the witness. A witness may testify only on
those facts which he knows of his own knowledge. It is
obvious that such purpose may he subverted, and the
orderly dispatch of the business of the courts thwarted, if
trial judges are allowed to adopt any procedure in the
presentation of evidence other than what is specifically
authorized by the Rules of Court.

3. Waiver of right to present evidence
People v. Macarang

1. Absence of trial
Dayawon v. Garfin

2. Use of affidavit as direct testimony

424 SCRA 18
2004

February 26,

Facts:
Accused was tried for the crime of qualified rape. After
several postponements for the presentation of defense
evidence either because of the absence of his counsel or
because he was not ready to testify, the court issued the
following order:
“... as prayed for by the Public Prosecutor and pursuant to
the order of Aug. 28, 2001, accused is now deemed to
have waived his right to present evidence. As further
prayed for, this case is now deemed submitted for
decision.”
Thereafter, the court sentenced accused to death.
Issue: Was there a waiver by accused of his right to
present evidence?
Held:
No. In criminal cases where the imposable penalty may
be death, the judge is called upon to see to it that the
accused is made aware of the consequences of not
heeding the warning given by the trial court. Here, the
waiver of the right to present evidence was not even
voluntary nor upon the instance of the accused, but

23

imposed by the trial court, apparently to penalize
accused, after he and his counsel repeatedly moved for
the postponements of the scheduled hearings. Obviously,
accused was deprived of his right to due process.

the deceased, the prosecution
accused presented his evidence.
Issue:

rested.

Thereafter,

Is the procedure proper?

Held:
4. Subpoena during adverse party’s turn
Adorio v. Bersamin

273 SCRA 217

June 10, 1997

Issue: May an accused request for the issuance of
subpoenas to his own witnesses to appear and bring
documents during trial while it is still the turn of the
prosecution to present its evidence?
Held:
Yes. Rule 119, Sec. 11 of the Rules of Court which
prescribes the order of trial in criminal cases does not
preclude the defense from procuring subpoenas duces
tecum during the time of the prosecution’s presentation
of evidence. In this case, counsel for the accused felt that
he needed the documents subject of the subpoenas for
his cross-examination of the prosecution witnesses.
Accordingly, the judge called a recess to enable said
counsel to secure said documents from the bank officials.
The order of trial was not in any way altered. Counsel for
the accused did not even attempt to call any of the bank
officials to the stand. Under these circumstances, the
resulting delay cannot be considered unreasonable nor
“irregular.”

5. Rebuttal evidence
Pana v. Buyser

358 SCRA 199

May 24, 2001

Facts:
After the prosecution and accused rested, the prosecution
presented 2 witnesses as rebuttal. After conviction,
accused claimed that the admission of the rebuttal
evidence was improper.
Issue: May the prosecution still be allowed to present
rebuttal after it has rested its case?
Held:
Yes, because in the order of trial set by the rules, the
parties may present rebuttal evidence. The right to
present evidence is reserved to the State no less than to
the accused. The rules of evidence permit the use of
considerable discretion by the trial courts in the
admission of rebuttal evidence. It cannot be said that the
trial court abused its discretion in this respect, where the
defendant is not taken by surprise and is not prevented
from introducing evidence in sur-rebuttal.

Yes. The procedure for trial provided in Sec. 11, Rule 119
of the Rules of Court safeguards and protects the
fundamental right of the accused to be presumed
innocent until the contrary is proved. Indeed, the form of
a trial is also a matter of public order and interest; the
orderly course of procedure requires that the prosecution
shall go forward and present all of its proof in the first
instance. However, in this case the accused did not object
to the procedure followed. It should be noted that this
procedure is now expressly sanctioned in Sec. 11(e), Rule
119 of the Rules of Court which provides for a reverse
trial when accused admits the act or omission charged
but interposes a lawful defense.

b. Claim of accident
People v. Gutierrez

302 SCRA 643
1999

February 8,

Issue: Where the accused in a murder case claims that
it was the victim who accidentally shot himself, should
the order of trial be reversed?
Held:
No. Rule 119, 11 of the Rules of Court allows the trial
court to modify the order of trial. The change found in the
present rule is based on the theory that by pleading selfdefense, the accused admits the killing and, therefore,
the burden of justification is now on him. This rule,
however, does not require such a change in the order of
trial but only allows it in the discretion of the court. In this
case, although accused pleaded self-defense, he did not
really admit the killing because his claim was that it was
the deceased who accidentally shot himself. There is,
therefore, no basis for reversing the order of trial. The
burden was on the prosecution to prove that it was
accused who really fired his gun at the deceased.
The order of the trial in the criminal case is almost the
same pattern as in civil cases.

Q: Who presents evidence first?
A: The prosecution. Under Section 11 [a], “The
prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.” So you prove
the charge and the civil liability.
Q: What is meant “in the proper case”?

6. Reversed order of trial
a. Claim of self-defense
Sacay v. Sandiganbayan 142 SCRA 593
10, 1986

July

Facts:
During the testimony of the first prosecution witness,
accused, through counsel, admitted that he shot the
deceased, but invoked self-defense and fulfilment of duty.
The prosecution then moved that the reverse procedure
be adopted in view of the admission that the accused
shot the deceased. No objection was interposed by the
accused or his counsel. Thus, after presenting evidence to
prove damages and the death and medical certificates of

A: That is because if the civil liability has already been
reserved, then there will be no presentastion of evidence
in the civil case. But if there is no reservation then it is
deemed instituted with the criminal case.
Under paragraph [b], provisional remedies are allowed in
criminal cases, like attachments, etc. in the same way if
the civil action is deem instituted, the offended party can
ask a preliminary attachment of the property under Rule
127.
Paragraph [e] refers to “trial in reverse.” The best
example is when the accused raises self-defense. The
burden of proof is automatically shifted to the accused.
But this should be included during the pre-trial as
provided under Rule 118, Section 1 [e]:

24

SECTION 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 and 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:
xxxxxxx
(e) modification of the order of trial if the accused
admits the charge but interposes a lawful defense;
xxxxxxx

Q: Is there such a thing as deposition-taking in criminal
cases?
A: YES, under Section 12:
SEC. 12. Application for examination of witness for
accused before trial.)
Conditional Examination [Deposition Taking] of a
Witness in behalf of the Accused
1. Requisites:


The accused has been held to answer for an
offense,



The accused must file a motion with the court,
and



The accused must serve notice to the other
parties to the case

2. What the motion shall state:

depositions of 3 DEA agents before a consular official of
the Philippine Embassy stationed in the USA. He alleged
that the witnesses could not come to the Philippines for
security reasons and they had in their possession video
tape recordings. The Sandiganbayan denied the motion.
Issue:

Is the denial proper?

Held:
Yes. The Sandiganbayan properly rules that no necessity
existed for the conditional examination of the 3 proposed
witnesses for the defense because: [a] other witnesses
appearing on record are available to testify on the same
facts on which the proposed deponents would testify; and
that [b] accused failed to show that the video tapes
recording the events prior to and during the shooting
incident could not be produced except through the same
deponents. The testimony of such witnesses are merely
corroborative. A bare allegation that the DEA agents
cannot come to the Philippines to testify for security
reasons, is not a compelling justification to take their
deposition in the US. The taking of deposition in criminal
cases may be allowed only in exceptional situation in
order to prevent a failure of justice.

2. Application for subpoena
Adorio v. Bersamin

273 SCRA 217

June 10, 1997

Issue: Must counsel furnish the adverse party with copy
of his request for issuance of subpoena?
Held:
No. Requests by a party for the issuance of subpoenas do
not require notice to other parties to the action. No
violation of due process results by such lack of notice
since the other parties would have ample opportunity to
examine the witnesses and documents subpoenaed once
they are presented in court.



The name and residence of the witness,



The substance of the testimony of the witness,
and

Q: How is deposition in criminal cases being done?



That fact that the witness:

SEC. 13. Examination of defense witness; how made.



is sick or infirm as to afford reasonable
ground for believing that he will not be able
to attend the trial, or



resides more than 100 kilometers from the
place of trial and has no means to attend
the same, or



other similar circumstances exist that would
make the witness unavailable or prevent
him from attending the trial.

3. What shall support the motion:

A: Read Section 13:

Procedure in Conditional Examination of Witness
for the Accused
1. Effect when the court is satisfied that the
examination of a witness for the accused is
necessary


The court shall issue an order directing that
the witness be examined at a specific date,
time and place, and



A copy of the order shall be served on the
prosecutor at least 3 days before the
scheduled examination

1. an affidavit of the accused, and
2. such other evidence as the court may require.

1. Deposition of witness living abroad

2. Who shall conduct the examination:


1st priority – a judge, or,



if not practicable – a member of the Bar in
good standing so designated by the judge in
the order, or



if the order is made by a court of superior
jurisdiction – before an inferior court to be
designated in the order

Jaylo v. Sandiganbayan 370 SCRA 170
November, 22, 2001
Facts:
Accused was charged with murder. Before trial, he filed a
motion praying that he be allowed to take oral

3. Effect when the prosecutor is absent:

25

The examination shall proceed provided
prosecutor was notified of the hearing

the

4. A written record of the testimony shall be taken

A: According to one case through Justice Feria, this is
because the government has the resources to get he
testimony of its witnesses. Pero ang defense may have a
hard time lalo na kapag pobre.

The grounds are almost identical. This is deposition
actually. Only, it is called conditional examination. That is
the term used here.

SEC. 14. Bail to secure appearance of material witness.

Take note, connect this with Section 1[f], Rule 115 – rights
of the accused. Section 12 is an exception to the right to
confront and cross-examine because you cannot insist
during the trial to confront and cross-examine the witness
under Rule 115 Section 1[f] when he was already
examined under Section 12.

1. Requisites for the court to order the witness to
post bail in such sum as may be deemed proper:

Q: Is the remedy of deposition-taking also available to the
prosecution?
A: YES, under Section 15:
SEC. 15. Examination of witness for the prosecution.
Conditional Examination of Witnesses in behalf of
the Prosecution
1. Grounds for allowing conditional examination:


Witness is too sick or infirm to appear at the trial
as directed by the court, or



The witness has to leave the Philippines with no
definite date of returning

2. Who shall conduct such conditional examination:
The court where the case is pending
3. How conditional examination shall be conducted:

Bail to Secure Appearance of Material Witness



There must be proof or a statement under oath
that a material witness will not testify when
required, and



A motion to the effect must be filed by the
proper party

2. Remedies of the court when a witness refuses to
cooperate:
1. It may order the witness to post bail –
when the witness refuses to testify when
required, provided:


There is proof or a statement under
oath to that effect, and



A motion must be filed by the proper
party

2. It may commit the witness to prison –
when the such witness refuses to post bail,
until such time:


he complies with the order, or



he is legally discharged
testimony has been taken

In the same manner as an examination at the

after

his

trial
4. Effect of failure or refusal of the accused to
attend the examination after reasonable notice has
been served on him:


It shall be considered a waiver, and



The statement taken from the witness may be
admitted in behalf of or against the accused

Distinctions
Conditional
Examination
Of
DEFENSE Witness
1. A judge
2. A member of the Bar in good
standing
3. An inferior court
1. Witness is sick or infirm as to
afford
reasonable
ground
for
believing that he will not be able to
attend the trial, or

It seems that the prosecution here is under the mercy of
his witnesses. But under Section 14, you can ask the
court to order the witness to post bail. And if he refuses
to post bail, he can be arrested. This is an instance
where a witness can be jailed ahead of the accused.

But actually the truth is in most cases, prosecution
witnesses do not appear not because ayaw but because
takot! They are afraid of what will happen like the
accused might harass them. And the law knows that. That
As to:
is why there is also another alternative – RA 6981, The
Witness Protection Program which took effect last April of
Who can act as deposition
1991. You read that so you will have an idea.
officer:
Grounds:

2. Witness resides more than 100 km
from the place of trial and has no
means to attend the same, or
3. Other similar circumstances exist
that would make the witness
unavailable or prevent him from
attending the trial

SEC. 16. Trial of several accused.
How Several Accused Jointly Charged shall be Tried
1. General Rule
They shall be tried jointly
2. Exception – they shall be tried separately if the court,
in its discretion, orders separate trials on motion of:
1. the prosecutor, or
2. any of the accused

1. Separate trial
Q: What is the reason why the law is more generous to
the defense witness?

Dacanay v. People

240 SCRA 490
1995

January 25,

26

Facts:
Dacanay was charged before the Sandiganbayan [SB]
with violation of R.A. 3019. His co-accused filed a motion
to quash the information and when it was denied he
raised the denial in a certiorari before the Supreme Court.
Dacanay moved for a separate trial but this was opposed
by the prosecution on the ground that it would entail a
repetitious proceeding. Consequently, the SB denied the
motion.

joint trial lang and you cannot have one information
charging more than one offense.

DISCHARGE OF AN ACCUSED TO BE STATE WITNESS
SEC. 17. Discharge of accused to be state witness.
Procedure in the Discharge of an Accused to be
State Witness
1. Two [2] or more persons are jointly charged with
the commission of any offense,

Issue:
Is Dacanay entitled to a separate trial?

2. A motion to discharge must be filed by the
prosecution before resting its case,

Held:
Yes. Sec. 16, Rule 119 of the Rules on Criminal Procedure
grants discretion to the court to allow a separate trial
upon motion of the fiscal or any accused.The main
objection to the separate trial is that such a procedure
would entail a repetitive presentation of evidence. But
the resulting inconvenience and expense on the part of
the Government cannot be given preference over the
right to speedy trial and the protection to a person’s life,
liberty or property accorded by the Constitution. This is
particularly true in the case of Dacanay where the
prosecutors’ opposition to the request for separate trial
was based on the ground that the principal accused in the
case was abroad and was not yet arrested. If an accused
cannot be placed under arrest because he remains
outside the territorial jurisdiction of the Philippines, with
more reason should his co-accused, who are under arrest,
be entitled to a separate trial

3. There must be a hearing in support of the
discharge where:


The prosecution is required to present evidence,
and



Each proposed witness is required to make a
sworn statement;

4. The court must be satisfied that [requisites for
discharge]:


There is absolute necessity for the testimony of
the accused whose discharge is requested,



There is no other direct evidence available for
the proper prosecution of the offense committed,
except the testimony of said accused,



The testimony of said accused can be
substantially corroborated in its material points,



Said accused does not appear to be the most
guilty, and



Said accused has not at any time been convicted
of any offense involving moral turpitude;

2. Time to file motion
Talino v. Sandiganbayan 148 SCRA 598
16, 1987

March

Question:
When should a motion for separate trial be filed?
Answer:
While Rule 119, Sec. 16, of the Rules of Court does not
specify when the motion for such a trial should be filed, it
has been held in several cases that this should be done
before the prosecution commences presenting its
evidence, although, as an exception, the motion may be
granted later, even after the prosecution shall have
rested, where there appears to be an antagonism in the
respective defences of the accused. In such an event, the
evidence in chief of the prosecution shall remain on
record against all the accused, with right of rebuttal on
the part of the fiscal in the separate trial of the other
accused.
Remember that there can be a joint trial of two or more
criminal cases if they arose of the same incident like
Judee fired her AK-47 and killed two or more people one
after the other. But you cannot file one information
because that will be duplicitous. There must be one
information for every one homicide and then you move
for a joint trial.

5. The court may direct the discharge of the
qualified accused; and
6. The discharge must be with the consent of the
accused so that he may be a witness for the state.

Effects on Admissibility of Evidence
1. When discharge is directed by the court:
Evidence adduced in support of the discharge shall
automatically form part of the trial
2. When the court denies the motion for discharge
of the accused as state witness:
His sworn
evidence

statement

shall

be

inadmissible

in

1. Time of discharge
a. Discharge during bail hearings
People v. Sunga

399 SCRA 624

March 27, 2003

Q: Now, how do you compare this rule with civil cases?

Facts:

A: In civil cases, when there is a common question of fact
or law involving two or more parties, there is such a thing
as filing only one complaint – joinder of causes of action
or parties. But in criminal cases, that is not allowed.
Consolidation in criminal cases is only for the purpose of

Accused were charged with rape with homicide. They
applied for bail and in the course of the hearing of their
petition, the prosecution moved to discharge one of their
co-accused, the only eye-witness to the crime, as a state
witness.

27

Issue: May an accused be discharged as a state
witness before trial?

4. Discharge of two accused
People v. Peralta

Held:
Yes. The discharge was ordered during hearings on the
petition of the accused for bail and after the prosecution
had presented several of its witnesses. A motion for
discharge may be filed at any stage of the proceedings,
and discharge can be effected from the filing of the
information to the time the defense starts to offer any
evidence.

b. Discharge before any other witness is presented
Chua v. CA

261 SCRA 112

August 28, 1996

Issue: May an accused be discharged even before the
prosecution has presented any of its other witnesses?

343 SCRA 221
2000

October 16,

Question:
What is the rationale for allowing the discharge of more
than one accused where several are charged in one
information?
Answer:
If no other prosecution witness could substantially
corroborate the testimony of a discharged witness, 2 are
discharged to meet the requirement of substantial
corroboration. Such corroboration is necessary to
ascertain the truthfulness of statements emanating from
an accused who turns state witness but is obviously a
tainted source.

Held:
Yes. The Rule does not require the prosecution to present
all its other evidence before an accused can be
discharged. An accused may be discharged at any time
before the defendants have entered upon their defense,
that is, at any stage of the proceedings from the filing of
the information to the time the defense starts to offer any
evidence.

2. Discharge when accused are separately charged
People v. Sandiganbayan 275 SCRA 505
1997

July 16,

Issue:
Where the 3 accused are charged in 3 separate
informations which arose out of one incident, but all the
cases were consolidated in one court, may one of them
be discharged as state witness to testify against the
others?
Held:
Yes. It is of no moment that one accused was charged
separately from his co-accused. The consolidated and
joint trial has the effect of making the 3 accused coaccused or joint defendants, especially considering that
they are charged for the same offense. In criminal law,
persons indicted for the same offense and tried together
are called joint defendants.

261 SCRA 112

People v. Chavez

397 SCRA 228
2003

February 11,

Issue:
At the hearing for the discharge of an accused as state
witness, may he be allowed to testify in addition to the
affidavit that he submitted for his discharge?
Held:
Yes. Rule 119, Sec. 17 of the Rules of Court does not
make any distinction as to the kind of evidence the
prosecution may present. What it simply requires, in
addition to the presentation of the sworn statement of the
accused concerned, is the presentation of such evidence
as are necessary to determine if the conditions exist for
the discharge, so as to meet the object of the law, which
is to prevent unnecessary or arbitrary exclusion from the
complaint of persons guilty of the crime charged. No
exemption from the term evidence is provided by the law
as to exclude the testimony of the accused. When the law
does not distinguish, we should not distinguish.

6. Requirement of “absolute necessity”
Chua v. CA

261 SCRA 112

August 28, 1996

Issue:
Must the judge satisfy himself completely of the absolute
necessity of the testimony of an accused before ordering
his discharge as a state witness?

3. Discharge of co-conspirator
Chua v. CA

5. Evidence for discharge

August 28, 1996

Issue: Where 2 people are charged as conspirators in a
crime, may one of them be discharged to testify against
the other?
Held:
Yes. When there is a conspiracy, and the crime is
committed clandestinely, then the discharge of a
conspirator is necessary to testify against the other
conspirator. A conspiracy can be established by the
testimony of a co-conspirator. In a conspiracy which was
done in secret, there is a necessity to discharge one of
the accused to provide direct evidence of the commission
of the crime. For who else outside the conspiracy can
testify on what was concocted between the conspirators,
but they themselves?

Held:
No. Sec. 17, Rule 119 does not require absolute certainty
in determining the conditions for the discharge. A trial
judge cannot be expected or required to inform himself
with absolute certainty at the very outset of the trial as to
everything which may be developed in the course of the
trial in regard to the guilty participation of the accused in
the commission of the crime charged in the complaint. If
that were practicable or possible, there would be little
need for the formality of a trial. In coming to his
conclusions as to the necessity for the testimony of the
accused whose discharge is requested, as to the
availability or non-availability of other direct or
corroborative evidence; as to which of the accused is the
‘most guilty’ one; and the like, the judge must rely in
large part upon the suggestions and the information
furnished by the prosecuting officer.

28

7. Previous conviction of a crime
Mangubat v. Sandiganbayan 135 SCRA 732
20, 1985

April

Issue:
May an accused who has been previously convicted of
estafa be discharged as a state witness?
Held:
Yes. While accused should not have been discharged
because he lacks one qualification due to ‘a previous final
convictions’ of crimes involving moral turpitude, the
Supreme Court has time and again declared that even if
the discharged witness should lack some of the
qualifications enumerated by Sec. 9. Rule 119 of the
Rules of Court, his testimony will not, for that reason
alone, be discarded or disregarded. In the discharge of a
co-accused, the court may reasonably be expected to err;
but such error in discharging an accused has been held
not to be a reversible one. This is upon the principle that
such error of the court does not affect the competency
and the quality of the testimony of the discharged
defendant. It is safe to assume that the discharge was
allowed by the court because there was absolute
necessity for the testimony of the witness whose
discharge is requested. At any rate, the discharge of a codefendant is a matter that lies within the sound discretion
of the trial court.

8. Testimony of accused not discharged
People v. Chaves

397 SCRA 228
2003

February 11,

faithfully executed. A necessary component of this power
to execute our laws is the right to prosecute their
violators. The right to prosecute vests the prosecutor
with a wide range of discretion – the discretion of
whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best
appreciated by prosecutors. It is therefore not
constitutionally impermissible for Congress to enact R.A.
6981 vesting in the Department of Justice the power to
determine who can qualify as a witness in the program
and who shall be granted immunity from prosecution.
Sec. 17 of Rule 119 does not support the proposition that
the power to choose who shall be a state witness is an
inherent judicial prerogative. Under this provision the
court is given the power to discharge as state witness
only because it has already acquired jurisdiction over the
crime and the accused. The discharge of an accused is
part of the exercise of jurisdiction but is not a recognition
of an inherent judicial function.

SEC. 18. Discharge of accused operates as acquittal.
Effects when the Court orders the Discharge of an
Accused as State Witness:
1. General Rule – it shall:


amount to an
accused, and



be a bar to future prosecution for the same
offense

acquittal

of

the

discharged

2. Exception – unless:
the accused fails or refuses to testify against his coaccused in accordance with his sworn statement
constituting the basis for his discharge

Issue:
May an accused voluntarily testify against his co-accused
without first being discharged as a state witness?

1. Retrial of discharged accused

Held:

People v. De Guzman

Yes. It is true that an accused cannot be made a hostile
witness for the prosecution, for to do so would compel
him to be a witness against himself. However, he may
testify against a co-defendant where he has agreed to do
so, with full knowledge of his right and the consequences
of his acts. There is nothing in the rules that requires the
court discharges him first as state witness. There is a
difference between testifying as state witness and
testifying as a co-accused. In the first, the proposed state
witness has to qualify as a witness for the state, after
which he is discharged as an accused and exempted from
prosecution. In the second, the witness remains an
accused and can be made liable should he be found
guilty of the criminal offense.

9. Exclusion under R.A. 6981
Webb v. De Leon

247 SCRA 652

August 23, 1995

Issue:
May a potential accused be excluded from the
information to be utilized as a State witness without court
approval?
Held:
Yes. The prosecution of crimes appertains to the
executive department of government whose principal
power and responsibility is to see that our laws are

326 SCRA 131
2000

February 22,

Issue:
Where an accused was erroneously discharged as a state
witness, may he be tried again for the same offense?
Answer:
No. The discharge of an accused is not reversible because
it will place him in double jeopardy. Once his discharge is
effected, the legal consequence of acquittal follows
unless the accused so discharged fails or refuses to
testify pursuant to his commitment. The order for his
discharge may only be recalled in one instance, and that
is when he subsequently fails to testify against his coaccused.

2. Where discharged accused has not yet testified
Bogo-Medellin v. Hermosa 209 SCRA 329
1992

May 27,

Facts:
Two employees were arraigned for qualified theft.
Thereafter, the prosecution asked for the discharge of one
of them as a state witness, which was granted by the
court. When a new judge took over, he reversed the
previous judge and ordered the discharged accused
reinstated in the information. Said discharged witness has

29

not yet testified and it appears that the previous order
discharging him was obviously erroneous.
Issue:
Is the reinstatement of accused in the information
proper?
Held:
No. Under Sec. 18 of Rule 119 of the Rules of Court, once
the discharge of an accused from the information is
effected, the legal consequence of acquittal follows and
persists unless the accused so discharged fails to refuses
to testify against his co-defendant, in which case the
defense of double jeopardy is withdrawn from him and
becomes unavailable to him. Until it is shown that the
discharged accused has in fact failed or refused to testify
against his co-defendant, subsequent proof showing that
any or all of the conditions listed in the Rules had not
been actually fulfilled, would not affect the legal
consequence of the discharge, i.e., would not wipe away
the resulting acquittal.

3. Effect of erroneous discharge on testimony
People v. Sunga

399 SCRA 624

March 27, 2003

Question:
If the order of discharge of an accused as state witness
failed to comply with Sec. 17, Rule 119, of the Rules of
Court, should the testimony of the witness be
disregarded?
Answer:
No. Even if the discharge failed to comply with all the
requirements embodied in the Rules, the testimony would
not, for that sole reason, be discarded or disregarded for,
in the discharge of a co-accused, the court may
reasonably be expected to commit error which is not
reversible, the underlying principle being that it does not
affect the competency and quality of testimony of the
discharged accused.

Let’s take Section 17 and Section 18 together. Discharge
of an accused to be state witness means that you will
convert an accused to become “Hudas,” save his neck
but hang them all!
Under Section 18, once the witness is discharged under
Section 17, he is now CONSIDERED ACQUITTED and there
is no way for him to be brought back in the case EXCEPT
when he changes his mind and ayaw na niyang magtestify. That is the only exception.

Q: What are the requirements before a witness can be
discharged?
A: Section 17 enumerates the requirements.
“SAID ACCUSED DOES NOT APPEAR TO BE THE
MOST GUILTY.”
Let’s comment on some of the requirements. One of the
most important requirements for the discharge of an
accused is the fourth one – “Said accused does not
appear to be the most guilty.” Based from what I read
from time to time, even lawyers have been commenting
on this. It seems they are misquoting this eh, like 2 days
ago, a lawyer said that we must discharge the accused
because he is the least guilty.

That is not what the law says! What the law says is, HE
DOES NOT APPEAR TO BE THE MOST GUILTY. And it is not
the same with HE IS THE LEAST GUILTY.
EXAMPLE: Mortz, Pao and Jet. Mortz – principal; Pao –
accomplice; Jet – accessory. Pag-sinabi mong “the least
guilty,” hindi mo puwedeng gamitin si Pao. Si Jet dapat
ang gamitin mo because he is the least guilty. [Tsk! tsk!
Ginamit si Jet. Ginamit!] PERO, pag-sinabi mong “he does
not appear to be the most guilty”, you can use Pao,
although there is somebody to be less guilty. Basta ang
importante, hindi si Mortz. So, there is a difference
between the two phrases.

Q: What do you mean by the phrase “does not appear to
be the most guilty’”?
A: There are cases:
PEOPLE vs. OCIMAR

August 17, 1992

FACTS:
This case involved a hold-upping incident, committed in a
bus in Manila while traveling in the North Express Way.
There were four (4) hold-uppers who rode in the bus.
When they reach a certain point, they stood up and
pulled out their guns and robbed the passengers. And
they placed themselves strategically: One of them stood
behind the driver, “o, wag kang kikilos, drive ka lang.”
Yung iba namang dito. Kanya-kanyang silang role eh. The
others were the ones who divested the passengers,
“mga pitaka ninyo, relo… lahat!”
Now, there was one passenger there who was a military
man wearing civilian clothes and may baril siya. So he
wanted to fight back but one of them saw him. Pag-bunot
niya, inunahan siya! So accused A shot that passenger.
Accused D naman saw A shoot the victim. And of course
all of them were charged with Robbery with Homicide in
conspiracy - the act of one is the act of all.
The prosecution wants to utilize D – the one who is
behind the driver – as state witness. The other accused
objected claiming conspiracy – “we are all co-principal –
the act of one is the act of all. So why do you say you are
not the most guilty? Pare-pareho lang tayo. Same
penalty.”
ISSUE: Will accused D be qualified under the phrase
“does not appear to be the most guilty”?
HELD:
YES. When you say “he does not appear to be the most
guilty”, you do not apply the rule on conspiracy. But you
apply the rule on individual acts. In reality, who is more
guilty? The one who really shot the victim or the one who
is just behind the driver? The reality is, the most guilty is
the one who shot, although for purposes of the RPC both
of you are co-principal. So, you look at it that way. Do not
apply the principle of the act-of-the-one-is-the-act-of-all.
You consider the most guilty in terms of the participation.
“By ‘most guilty’ means the highest degree of culpability
in terms of participation in the commission of the offense
and not the severity of the penalty imposed. While all the
accused maybe given the same penalty but by reason of
culpability one may be least guilty if we take into account
his degree of participation in the perpetuation of the
offense.”

Q: Generally, when the fiscal, after criminal investigation,
believes that one of them can be a state witness,

30

therefore he will not include his name in the information.
Is it allowed?
A: NO, you have to include him first before he can be a
state witness. Let the court decide whether he will be a
state witness or not. You cannot discharge on your own.
Remember under the Rules, the prosecutor is bound to
file the information against ALL those who appear to be
responsible including this guy who you want to use as
state witness. But when you reach the court, you file a
motion to discharge and let the court who will do it.
And under the New Rules, there must be a HEARING to
determine whether there should be discharged or not.
That’s why the rule said, “the trial court must require the
prosecution to present evidence and the sworn statement
of each proposed state witness at a hearing in support of
the discharge.” So, there must be an affidavit and there
must be a hearing.
In the 1985 Rules, there was no need of a hearing. No
need for the prosecution to present evidence. Normally
the fiscal will just file a motion that we would like to use
this witness and the court will discharge. Now, hindi na
pwede yan because in most cases in the past, a person is
discharge and it turns out that he is the most guilty. To
avoid that possibility, there is now need to present
affidavit, etc. and there must be a hearing. The court will
require presentation of evidence and it will decide
whether or not to discharge.
Now, sabi ng court in the hearing for the discharge of the
accused, “There is no need to discharge him. Motion to
discharge, denied!” So sabi ng accused, “Kawawa na ako
nito because I already admitted the crime in my affidavit!
Tapos, hindi pala ako qualified! [‘nak ng pating naman
o!].” What will happen to you now? You Look at the last
paragraph of Section 17:
“Evidence adduced in support of the discharge shall
automatically form part of the trial. If the court denies the
motion for discharge of the accused as state witness, his
sworn statement shall be inadmissible in evidence.”
So that is fair enough because the affidavit which is
practically an admission of his participation, then if he is
not discharged, do not use it against him. It
is
inadmissible as evidence against him. The leading case in
this issue is the 1993 case of
PEOPLE vs. CA AND INSPECTOR JOE PRING
SCRA 475

223

FACTS:
Pring was involved in kidnapping and one policeman
testified against him – Nonilo Arile. There was a motion to
discharge Arile to testify against Pring. Then the
prosecution gave the defense the affidavit of Arile. Based
on that, the court ordered the discharge of Arile. Pring
questioned the procedure. This is the first case where the
SC applied this rule on hearing on the discharge of an
accused. Sabi ni Pring, “Where is the hearing?”
Prosecution: “Yon palang motion to discharge na binigay
namin sa inyo?” Pring: “Ah, hindi naman hearing yun!
Hearing means, ilagay mo si Arile sa witness stand
subject to cross-examination because even under Section
17, evidence adduced to support the discharge shall
automatically form part of the trial. Meaning, the state
witness will not testify again. So what is contemplated
here is personal testimony and not the affidavit.”
ISSUE:
HELD:

Is the argument of Pring correct?

NO. Hearing means, you have the opportunity to read
what he will say and the opportunity to object. Yan ang
ibig sabihin ng hearing. Hindi kailangan na he will be
questioned personally in court. That satisfies the
requirement of hearing.
“Hence, in resolving the issue in this petition, the proper
question we should address is: Was there a failure to
observe the spirit and intent of Section 17, Rule 119 in
the case at bar? We rule in the NEGATIVE. The
prosecution has submitted the sworn statement of
accused Nonilo Arile and its evidence showing that the
conditions for discharge have been met. Neither can it be
denied that the defense was able to oppose the motion to
discharge Nonilo Arile. With both litigants able to present
their side, the lack of actual hearing was not fatal enough
to undermine the court's ability to determine whether the
conditions prescribed under Section 17, Rule 119 were
satisfied.”
So there is already substantial compliance with the
hearing. And that was the first case interpreting this new
provision after the 1985 Rules. But for the merits, later
na-acquit man si Pring ba which is a different issue. Yung
dito, discharge lang ang issue eh. On the merits, he was
acquitted. But after one year from his acquittal, pinatay
naman siya ng ABB. Sabi nila (ABB), kung nakaligtas ka
sa court, sa amin hindi ka makaligtas. That’s what
happened there.

Q: Normally, when is an accused discharged?
A: He is discharged before he testifies. You will use him.
That’s why he is going to be discharged. However, in the
1992 case of
ROSALES vs. COURT OF APPEALS

215 SCRA 102

FACTS:
The prosecution wants to use an accused as a witness
and he was willing. Sabi ng prosecution, “We will file a
motion to discharge you to be state witness.” The
accused said, “Hwag! Hwag!.. if you will do that patay
ako! Patayin talaga nila ako. They will not allow me to
testify.” But still the prosecution used him. He took a
stand and he pointed to all his companions. So he
testified first bago nag-file ng motion to discharge ang
prosecution.
ISSUE: Is that correct? Can the testimony come ahead
before the discharge?
HELD:
YES because of the peculiar fact – his life is in danger eh.
Anyway according to the law, should the discharge be
made, is should be made by the prosecution before
resting its case (Section 17). In the case at bar, at that
moment, the prosecution has not rested its case. So
puwede.
“While it is the usual practice of the prosecution to
present the accused who turns state witness only after
his discharge, the trial court may nevertheless sanction
his discharge after his testimony if circumstances so
warrant. In the case before Us, the imminent risk to his
life justified the deviation from the normal course of
procedure as a measure to protect him while at the same
time ensuring his undaunted cooperation with the
prosecution. Indeed, as is explicit from the Rule, as long
as the motion for discharge of an accused to be utilized
as a state witness is filed before the prosecution rests,
the trial court should, if warranted, grant it.”

31

August 23, 1995
Q: What happens if an accused who is the most guilty is
erroneously discharged – ang mga naiwan, yung mga
pipitsugin? Is the erroneous discharge valid? Is he
deemed acquitted?
A: The SC said YES. Even if there is a mistake, he is now
acquitted once he is discharged. His testimony is
admissible. In the case of
BOGO-MEDELLIN CO. vs. JUDGE PEDRO SON
209 SCRA 329 (May 27, 1992)
HELD:
“Any witting or unwitting error of the prosecution in
asking for the discharge of an accused and of the trial
court in granting the petition for discharge, so long as no
question of jurisdiction is involved, would not deprive the
discharged accused of the acquittal that is specified in
Section 10 of Rule 119 and of the constitutional
guarantee against double jeopardy. It is also relevant to
note that the improper or mistaken discharge of an
accused would not affect his competency as a witness or
render inadmissible his testimony.”

Q: Let’s go back to Evidence. He is the most guilty. His
discharge was wrong. Is his testimony admissible?
A: YES, because he can perceive and perceiving and he
can make known his perception to others. That is the only
qualification.
There
is
no
violation
of
marital
disqualification or attorney-client confidentiality, etc.
Wala man! So you go back to Evidence. The testimony of
the witness is qualified although it might be polluted and
he did it to save his game – that is not enough to make
his testimony inadmissible.

Q: One thing more, who can discharge the witness?
A: The court where the very case is pending. That’s the
rule – the court where the case is pending.

BAR QUESTION: What happens when an accused is
discharged, and after he is discharged, sabi ng
prosecution, “Teka muna nagkamali ako, di pala kita
kailangan. Balik ka!” Can it be done?
A: Sabi ng SC, NO, acquitted na yan! The only reason for
him to come back is, he is asked to testify pero ayaw
niya. Prosecution: “But I don’t need him.” SC: that is your
fault because first, why did you ask for his discharge? So
once he is discharged, he is deemed acquitted whether
you use him or do not use him. The only way for him to
come back is, you want to use him but he does not want
to testify because he is double-crossing the Government.
Lets go further. There is another law, about this witness.
You try to compare this principle with the provision of RA
6981 – The Witness Protection Act. Under RA 6981, the
fiscal would not even include you in the charge anymore,
for as long as the DOJ will say that he is qualified, he is
covered by the Witness Protection Program. Under the
law, the fiscal should not include him anymore.
Unlike in criminal procedure kailangan isali ka muna bago
ka i-discharge. Sa RA 6981 naman, hindi ka na kasali.
That is why the constitutionality of the law was
challenged in the case of
WEBB vs. DE LEON

FACTS:
State witness Alfaro admitted that she was with them.
She admitted kasama siyang nagpunta sa bahay ng mga
Vizconde. And then she was placed in the Witness
Protection Program and was used against Hubert Webb.
And according to Webb, the provision of the Witness
Protection Act – which authorizes the DOJ to place
somebody in the Witness Protection Program, and once
he certifies that she is covered, the fiscal is no longer
allowed to file a case against her (state witness) – is
violative of the judicial prerogative to discharge a witness
because you jumping the gun on the court.
According to Webb, it should be the court that will
discharge and not the DOJ. The law is not valid because it
is an encroachment of a judicial prerogative. It is an
intrusion for it is only the court which has the power
under the rules on criminal procedure to discharge an
accused as state witness.
ISSUE #1:
Is Webb’s argument valid?
HELD:
“Webb’s argument lacks appeal for it lies on the faulty
assumption that the decision whom to prosecute is a
judicial function, the sole prerogative of courts and
beyond executive and legislative interference. In truth,
the prosecution of crimes appertains to the executive
department of government whose principal power and
responsibility is to see that our laws are faithfully
executed. A necessary component of this power to
execute our laws is the right to prosecute their violators.
The right to prosecute vests the prosecutor with a wide
range of discretion — the discretion of whether, what and
whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by
prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting
in the Department of Justice the power to determine who
can qualify as a witness in the program and who shall be
granted immunity from prosecution.”
ISSUE #2:
How do you reconcile this ruling with the rule that only
the court has the power to discharge?
HELD:
Simple! In the Witness Protection Program, the accused is
NOT even accused in any case yet. Wala pa! But once he
is accused, you need the consent of the court to
discharge, that is kapag kasali na! Pero kung hindi pa
kasali, there is no need for the court’s consent to decide
because that is an executive function.
ISSUE #3:
And why is the court’s consent necessary once the
accused is charged in court?
HELD:
This is because the court has already acquired jurisdiction
over the person of the accused. So the SC said, “Section
17 of Rule 119 does not support the proposition that the
power to choose who shall be a state witness is an
inherent judicial prerogative. Under this provision the
court is given the power to discharge as state witness
only because it has already acquired jurisdiction over the
crime and the accused. The discharge of an accused is

32

part of the exercise of jurisdiction but is not a recognition
of an inherent judicial function.”
ISSUE #4:
Is it wise for Congress to enact this law? Why will
Congress enact this kind of law that will determine that
the witness will not be included in the information?
HELD:
YES. It is a wise legislation. “Moreover, the Rules of Court
have never been interpreted to be beyond change by
legislation designed to improve the administration of our
justice system. The Witness Protection Act is one of the
much sought penal reform laws to help government in its
uphill fight against crime, one certain cause of which is
the reticence of witnesses to testify.”

SEC. 19. When mistake has been made in charging the
proper offense.
When Mistake has been made in Charging the
Proper Offense
1. Situation:


A mistake has been made in charging the proper
offense;



This becomes manifest at any time before
judgment ; and



Because of this mistake, the accused cannot be
convicted of:





the offense charged, or



any other offense necessarily included
therein; but

There appears good cause to detain the accused

2. Effects:


The accused shall NOT be discharged; rather



The court shall:


commit the accused to answer for the
proper offense [order the prosecution to
file the proper information], and



dismiss the original case upon the filing
of the proper information

would primarily be the function of the court to motu
proprio order the dismissal of the case and direct the
filing of the appropriate information. The prosecution or
the defense may initiate such dismissal and substitution
at this stage, although, from a realistic point of view, that
would be rare situation. Rule 119 Sec. 19 therefore, is
more directly and principally directed to the trial court to
invest it with the requisite authority to direct by itself the
dismissal and refiling of the informations therein
contemplated.
Rule 110 provides the procedural governance for the
prosecution of offenses. Sec. 14[2] provides the
procedure and requisites for the substitution of a
defective information by the correct one. Although, just
like Sec. 11 of Rule 119 the permissible stage for
effecting that substitution is “at any time before
judgment,” unlike the latter situation it is sufficient that
“it appears that a mistake has been made in charging the
proper offense.” The situation under Sec. 14
contemplates a longer time span, inclusive of the period
from the filing of the information up to and before trial.
Since no evidence has been presented at that stage, the
error would appear or be discoverable from a review of
the records of the preliminary investigation. This fact
may be perceived by the trial judge himself but
realistically, it will be the prosecutor who can initially
determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances
as offenses includible in the offense charged be taken
into account. It necessarily follows, therefore, that the
prosecutor can and should institute remedial measures
for the dismissal of the original information and the
refiling of the correct one, otherwise he would be
recreant to his duties.

2. Mistake in stating the date of commission
People v. Molero

144 SCRA 397
1986

September 24,

Facts:
The complaint charged accused of raping his daughter on
Feb. 13, 1976. When his daughter testified that the rape
occurred on Feb. 5, 1976, the court dismissed the case
and ordered the Prosecutor to file the proper information
for the rape committed on Feb. 5, 1976.
Issue:
Is the procedure proper?
Held:

1. Distinguished from Rule 110, Sec. 14
Galvez v. CA

237 SCRA 685

October 24, 1994

Question:
How is amendment of an information under Sec. 14, Rule
110 distinguished from dismissal when a mistake has
been made in charging the proper offense and the
subsequent filing of the proper information under Rule
119, Sec. 19 of the Revised Rules of Court?
Answer:

No. The court should have simply granted the
prosecution’s motion for leave to amend the complaint as
to the date of the commission of the crime. There was no
need to dismiss the case without prejudice to the filing of
a new complaint. Sec. 19, Rule 119, Rules of Court applies
when there is a mistake in charging the proper offense
but not when an honest error of a few days is sought to
be corrected and the change does not affect the rights of
the accused.

The following are the distinctions:

You co-relate Section 19 with the last paragraph of
Section 14, Rule 110:

Rule 119 is the rule specifically governing the trial stage
where evidence is necessarily being presented, hence the
trial court is now in a better position to conclude that
manifestly the accused cannot be convicted of the
offense charged of one that it necessarily includes. It

If it appears at anytime before judgment that a mistake
has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the

33

accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their
appearance at the trial.
So the same ‘no? The accused shall be discharge because
of a wrong information upon filing of the correct one. So
Section 14 of Rule 110 and Section 19 of Rule 119 talk of
the same thing.

QUESTION: how will you distinguish the two provisions?
Kung tingnan mo mukang pareho eh. But for academic
purposes, there are differences made by Justice Regalado
in the 1994 case of GALVEZ VS. CA (237 SCRA 685) Alam
mo itong si Regalado, siya din ang nag-distinguish ng
amendment and substitution of information under Rule
110 which was asked in the bar and thoroughly discussed
in the case of TEEHANKEE VS. MADAYAG. In the case of
Galvez naman, gi-distinguish naman niya ang Section 14
Rule 110 and Section 19 Rule 119.



Any of the grounds stated in section 1 of Rule
137, or



Any other reason,

2. The judge or the prosecutor shall communicate with
the Secretary of Justice; and
3. The Secretary of Justice may appoint an acting
prosecutor

SEC. 21. Exclusion of the public. –
Section 21 is an exception to the rule found in Rule 115
about the right of the accused to a public trial. There are
some exceptions to that right. And under Section 21:
Exclusion of the Public
1. When the judge may exclude the public from the
courtroom:


Motu propio – if the evidence to be produced
during the trial is offensive to decency or public
morals, or



On motion of the accused

Q: Distinguish Section 14 of Rule 110 and Section 19 of
Rule 119.
A: For academic
distinctions:

purposes,

the

following

are

the

1.
Rule 119 is the rule specifically governing the
trial stage; whereas
Rule 110 provides the procedural governance for
the prosecution of offenses;
2.
Rule 119 is more directly and principally directed
to the trial court to invest it with the requisite authority to
direct by itself the dismissal and re-filing of the
informations therein contemplated; whereas
Rule 110 is directed to the prosecutor who can
and should institute remedial measures for the
dismissal of the original information and the refiling of the correct one, otherwise he would be
recreant to his duties;
3.

In Rule 119, evidence is necessarily being
presented, hence the trial court is now in a
better position to conclude that manifestly the
accused cannot be convicted of the offense
charged or of one that it necessarily includes;
whereas
In Rule 110, since no evidence has been
presented at that stage, the error would appear
or be discoverable from a review of the records
of the preliminary investigation; and

4.

In Rule 119, the permissible stage for effecting
that substitution is “at any time before
judgment”; whereas
In Rule 110, it is sufficient that “it appears…that
a mistake has been made in charging the proper
offense…” which situation contemplates a longer
time span, inclusive of the period from the filing
of the information up to and before trial.

SEC. 20. Appointment of acting prosecutor.
Appointment of Acting Prosecutor; Procedure
1. A prosecutor, his assistant or deputy is disqualified to
act due to:

2. Who cannot be excluded from the trial:


Court personnel, and



Counsel of the parties

Aside from the two exceptions, the other grounds where
the public can be excluded, based on American
Jurisprudence are:
1. To prevent disorder;
2. To prevent embarrassment to a witness;
3. To limit attendance to seating capacity.
SEC. 22. Consolidation of trials of related offenses. –
Charges for offenses founded on the same facts or
forming part of a series of offenses of similar character
may be tried jointly at the discretion of the court. (14a)
Distinctions
Consolidated under Rule 111
A consolidation is made between a
criminal case and the civil case arising
out of the offense charged

1

The civil case was originally
separately from the criminal case

2

filed

1. Consolidation when cases are filed separately
People v. Mejia

275 SCRA 127

July 7, 1997

Facts:
Accused stabbed the driver of a jeep to death, wounded a
passenger and drove the vehicle away. They were
charged with and convicted of murder and frustrated
murder in one RTC, and charged with and convicted the
crime of carnapping in another RTC branch.
Issue:
Should the 3 cases have been consolidated?

34



Held:
Yes. The offenses arose out of the same incident, are
founded on the same factual milieu, and would be proved
by testimonies of the same witnesses. Sec. 22 of Rule 119
of the Rules of Court provides that charges for offenses
founded on the same facts or forming part of a series of
offenses of similar character may be tried jointly at the
court’s discretion. Although consolidation is one
addressed to the sound discretion of the trial court, joint
hearing becomes a matter of duty if 2 or more cases are
tried before the same judge, or even filed with the
different branches of the same court, provided one of
such cases has not been partially tried.

Demurrer to Evidence WITHOUT Leave of Court;
Procedure
1. A demurrer to evidence is directly filed by the
accused with the court
2. Resolution of the court on the demurrer:


SEC. 23. Demurrer to evidence.
Demurrer to Evidence
1. When the court may dismiss the criminal action
on the ground of insufficiency of evidence:
After the prosecution rests



2. Basis of the court to dismiss the case on the
ground of insufficiency of evidence:


On its own initiative – after giving
prosecution the opportunity to be heard, or



Upon demurrer to evidence – filed by the
accused

With leave of court



Without leave of court

Demurrer to
Procedure

Evidence

WITH

Leave

of

Court;

1. Motion for leave of court to file a demurrer:


Shall be filed by the accused within a nonextendible peiod of 5 days after the prosecution
rests its case,



Shall specifically state the grounds therefor, and



May be opposed by the prosecution within a nonextendible period of 5 days from its receipt

2. Resolution of the court on the motion for leave
of court:


If the court DENIES the motion – it shall not be
reviewable by appeal or by certiorari before
judgment



If the court GRANTS the motion:


the accused is given a non-extendible
period of 10 days from notice to file the
demurrer to evidence, and



the prosecution is given a nonextendible period of 10 days from
receipt of the demurrer to oppose the
demurrer

3. Resolution of the court on the demurrer itself:


If the court DENIES the demurrer:


The accused is deemed to have waived his
right to present evidence,



The court will render judgment based on the
evidence presented by the prosecution, and



This order shall not be reviewable by appeal
or by certiorari before judgment

If the court GRANTS the demurrer – the case is
dismissed and the accused is as good as
acquitted

the

3. Two [2] ways of filing a demurrer to evidence:


If the court GRANTS the demurrer – the case is
dismissed and the accused is as good as
acquitted

If the court DENIES the demurrer – the accused
may present evidence to prove his defense

Demurrer is a motion to dismiss. After the prosecution
has rested its case, based on the order of trial, the
accused now presents his case. But sabi ng accused,
“Well, I will present evidence on the assumption that the
prosecution has proven prima facie the crime and my
guilt. [meaning the presumption of innocence has already
been disputively rebutted ba!].” But suppose the
prosecution has not proven the facts or not proven the
crime or my guilt, “why will I present evidence? Why will
I prove my innocence when I’m still presumed innocent?”
Yaan! Yan ang demurrer. The same thing in civil cases –
why will you prove your defense when the plaintiff failed
to prove his cause of action? So instead of presenting
evidence, he will file a demurrer. Actually it’s a motion to
dismiss.
1. Meaning of demurrer to evidence
Katigbak v. Sandiganbayan 405 SCRA 558
10, 2003

July

Question:
What is a demurrer to evidence?
Answer:
A demurrer to evidence is an objection by one of the
parties in an action to the effect that the evidence his
adversary produced is insufficient in point of law, whether
true or not, to make out a case or sustain the issue. The
party demurring challenges the sufficiency of the whole
evidence to sustain a verdict. For its part, the court, in
passing upon the sufficiency of the evidence raised in a
demurrer, is merely required to ascertain whether there is
competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt.

2. Demurrer with leave
People v. Alcanzado

428 SCRA 681

May 20, 2004

Facts:
Accused was charged with murder. After the prosecution
rested its case, he filed a motion for leave to file
demurrer to evidence which was granted. Thereafter, he

35

filed his Demurrer to Evidence which was opposed by the
prosecution. Five months later, the RTC rendered a
decision convicting him of the crime.
Issue:
Is the court correct in deciding the case without giving
accused an opportunity to present evidence?
Held:
No. The RTC committed a very serious error in
promulgating a decision after denying the demurrer to
evidence filed by accused upon prior leave of court,
without first giving him the opportunity to present his
evidence. Under Sec. 23, Rule 119 of the Rules of Court, if
the court denies the demurrer to evidence filed with leave
of court, the accused may adduce evidence in his
defense. Evidently, the RTC violated the provision. A
remand of the case for reception of defense evidence is
therefore warranted.

393 SCRA 419
2002

December 4,

Question:
May the court deny a Motion for Leave to File Demurrer to
Evidence?
Answer:
Yes. Prior leave to file a demurrer to evidence is
discretionary upon the trial court. And, unless there is
grave abuse amounting to lack or excess of jurisdiction in
its denial, the trial court’s resolution may not be
disturbed.

419 SCRA 659
2004

Katigbak v. Sandiganbayan 405 SCRA 558
10, 2003

July

Question:

Answer:
No. An order denying a demurrer to evidence is
interlocutory therefore it is not appealable. Neither can it
be the subject of a petition for certiorari in the absence of
grave abuse of discretion or excess of jurisdiction, or an
oppressive exercise of judicial authority. Unless there is
grave abuse of discretion amounting to lack of
jurisdiction, a denial of a motion to dismiss on demurrer
to evidence may not be disturbed and may only be
reviewed in the ordinary courts of law by an appeal after
trial.

6. Effect of granting demurrer
Ong v. People

4. Demurrer without leave
People v. Sayaboc

5. Denial of demurrer

Is an order denying a demurrer to evidence subject to
appeal?

3. Denial of motion for leave
Ladiana v. People

evidence for the accused. The rationale for this rule is
that when the accused moves for dismissal on the ground
of insufficiency of evidence, he does so in the belief the
prosecution’s evidence is insufficient to convict and,
therefore, any need for him to present any evidence is
negated. An accused cannot be allowed to wager on the
outcome
of
judicial
proceedings
by
espousing
inconsistent
viewpoints
whenever
dictated
by
convenience. This is to avoid the dilatory practice of filing
motions for dismissal as a demurrer to the evidence and,
after denial thereof, the defense would then claim the
right to present its evidence.

January 15,

Facts:
After the prosecution rested its case, accused asked for
15 days to file a motion for leave to admit demurrer to
the evidence. The trial court acceded. But instead of filing
such motion first, he filed a Demurrer to Evidence on 12
July 1999. The motion for leave to file the pleading was
filed the next day only. The court denied the demurrer to
evidence. Further, it ruled that because accused did not
seek nor was granted express leave of court to his filing
of the demurrer to evidence, he is deemed to have
submitted his case for judgment in accordance with Sec.
23, Rule 119. Thereafter, the court convicted him of
homicide.
Issue:
Is the court correct in barring accused from presenting
evidence for his defense?
Held:
Yes. The demurrer to evidence filed on 12 July 1999 was
without prior leave of court. The motion for leave to file
the said pleading was filed only the next day. The court,
therefore, correctly applied the rule on demurrer to
evidence when it disallowed the accused to present
evidence on his behalf.
The filing of a demurrer to evidence without leave of
court is an unqualified waiver of the right to present

342 SCRA 372

October 9, 2000

Facts:
Accused was charged with estafa before the MTC. After
the prosecution offered its documentary exhibits, which
were all photocopies, he filed a demurrer to evidence,
which was denied. On certiorari, the RTC reversed the
MTC and ordered it to dismiss the case on the ground of
insufficiency of evidence. The RTC, in turn, was reversed
by the CA which ordered the MTC to proceed with the
trial.
Issue:
Was accused placed in double jeopardy?
Held:
Yes. While generally, the order of the trial court denying a
demurrer to evidence cannot be appealed, it would not be
true if the trial court acted with grave abuse of discretion.
The present case falls within the exception. There is no
competent evidence to sustain the charge since all
documentary evidence submitted were uncertified
photocopies and are inadmissible. Thus, when the RTC
reversed the MTC and granted the demurrer the same
constituted a valid acquittal. A dismissal of a criminal
case by the grant of a demurrer to evidence is not
appealable as the accused would be placed in double
jeopardy.

People v. Sandiganbayan 376 SCRA 74
4, 2002

February

36

Facts:
Accused was charged with violation of R.A. 3019. After
the prosecution rested, he filed a demurrer to evidence
which was denied. He filed a motion for reconsideration,
which was granted.
Issue:
May the government seek review of the dismissal before
the Supreme Court by certiorari?
Held:
No. The grant or denial of a demurrer to evidence is left
to the sound discretion of the trial court, and its ruling on
the matter shall not be disturbed in the absence of a
grave abuse of discretion. Significantly, once the court
grants the demurrer, such order amounts to an acquittal;
and any further prosecution of the accused would violate
the constitutional proscription on double jeopardy. This
constitutes an exception to the rule that the dismissal of
a criminal case made with the express consent of the
accused or upon his own motion bars plea of double
jeopardy.

7. Civil liability where demurrer is granted
Salazar v. People

411 SCRA 598
2003

September 23,

Facts:
After the prosecution rested, accused filed a demurrer to
evidence with leave of court. The motion was granted
with the acquittal of the accused of the charge of estafa
but the trial court ordered her to pay a civil liability in the
amount of P214,000. Accused sought reconsideration of
the civil aspect of the judgment but it was denied.
Issue:
Where an accused was acquitted following a demurrer too
evidence, may she be adjudged civilly liable without first
requiring her to present evidence?

file demurrer with or without leave and it is granted, then
you have no problem because the accused will be
acquitted.
The problem is, if your demurrer is denied. Meaning, the
court says that there is sufficient evidence to prove at
least the guilt of the accused. If the demurrer was filed
with prior leave of court and it is subsequently denied,
the accused is allowed to present evidence to prove his
defense.
But if you filed the demurrer without prior leave of court
and the demurrer is denied, then you are already
convicted because the accused has forfeited his right to
present evidence. It is practically equivalent to a waiver
of his right to present evidence. So conviction
automatically follows. This is what the rules say.

What is the rationale behind this? The 1997 case of
PEOPLE vs. TURINGAN

282 SCRA 424

HELD:
“The rationale for the rule is that when the accused
moves for dismissal on the ground of insufficiency of the
prosecution evidence, he does so in the belief that said
evidence is insufficient to convict and, therefore, any
need for him to present any evidence is negated. It is said
that an accused cannot be allowed to wager on the
outcome
of
judicial
proceedings
by
espousing
inconsistent
viewpoints
whenever
dictated
by
convenience. The purpose behind the rule is also to avoid
the dilatory practice of filing motions for dismissal as a
demurrer to the evidence of the prosecution and, after
denial thereof, the defense would then claim the right to
present its evidence.”
So, there is an inconsistency in saying that the
prosecution’s evidence is not sufficient, and yet when it is
denied, “OK, I will present evidence.” Ahh di puwede yan!
And many defense counsels in the past have filed
demurrer just to delay the presentation of evidence when
there is no chance for said demurrer to be granted.

Held:
No. If demurrer is granted and the accused is acquitted
by the court, the accused has the right to adduce
evidence on the civil aspect of the case unless the court
also declares that the act or omission from which the civil
liability may arise did not exist. If the trial court issues an
order or renders judgment not only granting the demurrer
to evidence of the accused and acquitting him but also on
the civil liability of the accused to the private offended
party, said judgment on the civil aspect of the case would
be a nullity for the reason that the constitutional right of
the accused to due process is thereby violated. This is so
because when the accused files a demurrer to evidence,
the accused has not yet adduced evidence both on the
criminal and civil aspects of the case. The only evidence
on record is the evidence for the prosecution. What the
trial court should do is to issue an order or partial
judgment granting the demurrer to evidence and
acquitting the accused; and set the case for continuation
of trial for him to adduce evidence on the civil aspect of
the case, and for the private complainant to adduce
evidence by way of rebuttal.
It is now emphasized in paragraph 1 that a demurrer
may be filed with or without leave of court. Leave of court
means before your demurrer, you file muna a motion for
permission to file the demurrer.
The court grants
permission, you file the demurrer. You can still file the
demurrer even without the permission of the court. If you

BERNARDO vs. COURT OF APPEALS

278 SCRA 782

HELD:
“The power to grant leave to the accused to file a
demurrer is addressed to the sound discretion of the trial
court. The purpose is to determine whether the accused
in filing his demurrer is merely stalling the proceedings.
[Is he really serious or is only delaying the proceedings?]
Judicial action to grant prior leave to file demurrer to
evidence is discretionary upon the trial court. But to allow
the accused to present evidence after he was denied
prior leave to file demurrer is not discretionary.”[Meaning,
when you file a demurrer without prior leave, you assume
the risk eh because once your demurrer is denied, you no
longer have a chance to present evidence.] “Once prior
leave is denied and the accused still files his demurrer to
evidence or motion to dismiss, the court no longer has
discretion to allow the accused to present evidence. The
only recourse left for the court is to decide the case on
the basis of the evidence presented by the prosecution.
And, unless there is grave abuse thereof amounting to
lack or excess of jurisdiction, the trial court's denial of
prior leave to file demurrer to evidence or motion to
dismiss may not be disturbed. However, any judgment of
conviction by a trial court may still be elevated by the
accused to the appellate court.” [You cannot question the

37

order of denial of prior leave, this is discretionary but you
can appeal the judgment of conviction itself.]

BAR QUESTION: How do you distinguish the rule on
demurrer of evidence in civil cases with the rule of
demurrer in criminal cases?
A: The following are the distinctions:
1.

In civil cases when the demurrer is denied, the
defendant will now present his evidence to prove
his defense because the defendant does not
waive his right to present in the event the
demurrer is denied; whereas
In criminal cases, if the demurrer of the accused
is denied the accused is no longer allowed to
present evidence if he had no prior leave;

2.

In civil cases, if the defendant’s demurrer is
granted and the case is dismissed and the
plaintiff appeals to the appellate court and on
appeal the court reverses the order of dismissal,
the
appellate
court
renders
judgment
immediately against the defendant. Goodbye! –
talo na ang defendant.
There is no more
remanding; whereas
In criminal cases, if the demurrer is granted,
there is no more appeal by the prosecution
because the accused has already been
acquitted. Otherwise, there will be a case of
double jeopardy;

3.

In civil cases, the court cannot on its own
initiative, dismiss the case after the plaintiff
rests without any demurrer by the defendant.
There is no such thing as motu propio demurrer;
whereas

When the court denies the motion for leave or the
demurrer itself, as a rule, it is not reviewable. You cannot
review it. The remedy is to go to trial and if you are
convicted, appeal on the judgment of conviction. But as
a general rule, when a demurrer is denied, you cannot go
on certiorari. I’m not saying that this is 100% but there
are some instances when the court, based on equity,
allows it.
Take note that when you file a leave of court to file a
demurrer, the accused must specifically state the
grounds.
The 1985 Rules just says you get prior leave. This is what
I noticed here among trial courts: after the prosecution
rests, sometimes the defense counsel will say, “Your
honor, we will file a demurrer. May we ask for leave of
court to file the demurrer?” And I noticed that the courts
will say “Alright, leave granted, file your demurrer.”
Parang naging automatic ba! Pag-hingi mo ng leave,
bigay kaagad!
Now, the 2000 Rules states, “The motion for leave of
court to file demurrer to evidence shall specifically state
its grounds.” Hindi na puwede yung “we intend to file a
demurrer, may we ask for leave” without stating the
grounds.

SEC. 24. Reopening.
Reopening of a Case
1. When may the judge reopen the proceedings:


At any time before finality of the judgment of
conviction,



After a proper hearing,



Either:

In criminal cases, the court may dismiss the
action on its own initiative after giving the
prosecution the chance to present its evidence.

1. motu propio, or
2. upon motion
2. Ground for reopening the proceedings:

Demurrer used to be composed only of two paragraphs.
Under the new rules, there are three (3) new additional
paragraphs. The additional provisions are:
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. The
prosecution may oppose the motion within a nonextendible period of five (5) days from its receipt.
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 by certiorari before
judgment. (n)

These deadlines were not found before. If you want to
file leave, pag-rest, 5 days lang, you file a motion for
leave. The prosecution may oppose the leave of within 5
days. After the court grants leave, you file the demurrer
within 10 days lang. The obvious purpose here is not to
delay the trial.

To avoid miscarriage of justice
3.
When
terminated:

reopened

proceedings

shall

be

Within 30 days from the order granting it

A motion to reopen the case to receive further proofs was
not in the old rules but it was nonetheless a recognized
procedural recourse, deriving validity and acceptance
from long established usage. This lack of a specific
provision was remedied by the Revised Rules on Criminal
Procedure. Sec. 24, Rule 119 and existing jurisprudence
stress the following requirements for reopening of a case:
(1) the reopening must be before the finality of a
judgment of conviction;
(2) the order is issued by the judge on his own
initiative or upon motion;
(3) the order
conducted;

is

issued

only

after

a

hearing

(4) the order intends to prevent a miscarriage; and
(5) the presentation of additional and/or further
evidence should be terminated within thirty days
from the issuance of the order (Cabarles v. Maceda
516 SCRA 303, Feb. 20, 2007).

38

1. Reopening and motion for new trial
Alegre v. Reyes

161 SCRA 226

May 9, 1988

Question:
How is a motion to reopen trial distinguished from a
motion for new trial?
Answer:
The following are the distinctions:
1. A motion to reopen may properly be presented
only after either or both parties have formally
offered, and closed their evidence, but before
judgment. A motion for new trial is proper only
after rendition or promulgation of judgment.(not
applicable anymore)
[2. A motion for reopening, unlike a motion for new
trial, is not specifically mentioned and prescribed as
a remedy by the Rules of Court. There is no specific
provision in the Rules of Court governing motions to
reopen. It is albeit a recognized procedural recourse
or device, deriving validity and acceptance from
long, established usage.](not applicable also)
3. A motion for new trial in civil or criminal actions
may be applied for and granted only upon specific,
well-defined grounds, set forth respectively in Rules
37, Sec. 1 and 121, Sec. 2. On the other hand, the
reopening of a case for the reception of additional
evidence after a case has been submitted for
decision but before judgment is actually rendered is,
it has been said, controlled by no other rule than that
of the paramount interests of justice, resting entirely
in the sound judicial discretion of a trial court; and its
concession, or denial, by said court in the exercise of
that discretion will not be reviewed on appeal unless
a clear abuse thereof is shown.

EXAMPLE: I will rest my case, the trial is finished and the
next step is the decision. But after you rest, you have
additional evidence discovered for the first time and
therefore could not have been presented beforehand.
Q: What will you do? Will you file a motion for new trial
based on the newly discovered evidence?

propio, the court ordered the re-enactment. This is an
instance of re-opening the trial. This is allowed because
this is an inherent power of the court, if it really wants to
find out the truth. You cannot find any provision in the
rules regulating that kind of remedy. This is allowed
without any specific rule except justice and equity.
For the first time, reopening of trial in a criminal case is
now found in Section 24 of the 2000 Rules. But there is
something wrong here. In reopening of trial, you do it
before the case is decided. Dito naman, you do it “at any
time before the finality of the judgment of conviction.”
Anong klase ito?! How can this be? There is already a
judgment of conviction and then, you reopen?? I think the
correct motion is a new trial.
I remember when Galvez was here to lecture on the Rules
on Criminal Procedure. He said that somebody in the
Supreme Court nakialam dito eh. The original draft was
“anytime before judgment there can be re-opening upon
motu propio or motion.” But when the new rules came
out, it said “at any time before finality of the judgment of
conviction.” – dinagdagan ba! The person who changed it
must have thought the committee had erred but the
change made it even worse. That’s why the committee
wrote a letter to the SC to amend this mistake.

Now, there are some special laws that are related to the
subject of trial and they are considered as part and parcel
of the criminal procedure. I am referring to RA 4908, RA
6033, RA 6034 and RA 6035. RA’s 6033, 6034 and 6035
are also known as the Laurel Laws because the author of
these laws is Senator Laurel in the 70’s.
RA 4908 – AN ACT REQUIRING JUDGES OF COURTS TO
SPEEDILY TRY CRIMINAL CASES WHEREIN THE OFFENDED
PARTY IS A PERSON ABOUT TO DEPART FROM THE
PHILIPPINES WITH NO DEFINITE DATE OF RETURN
RA 6033 – AN ACT REQUIRING COURTS TO GIVE
PREFERENCE TO CRIMINAL CASES WHERE THE PARTY OR
PARTIES INVOLVE ARE INDIGENTS
RA 6034 – AN ACT PROVIDING TRANSPORTATION AND
OTHER ALLOWANCES FOR INDIGENT LITIGANTS.
RA 6035 – AN ACT REQUIRING STENOGRAPHERS TO GIVE
FREE TRANSCRIPT OF NOTES TO INDIGENT AND LOW
INCOME LITIGANTS AND PROVIDING A PENALTY FOR THE
VIOLATION THEREOF

A: NO, you cannot – wala pang decision! Motion for new
trial based on new evidence is proper only after a
decision has been made and the same is not yet final and
executory.
Q: In the example, wala pang decision eh. What is the
proper remedy?
A: The correct remedy is motion to reopen the trial
because there is no judgment yet.
Q: On what grounds?
A: Justice and equity. This is the only ground for reopening because there is no specific ground.
Q: Now can the court on its own, re-open a trial, civil or
criminal?
A: YES. This has happened several times. The case has
already been submitted for trial, this happened to me
several years ago. The court said “before the court
renders a decision, the court would like to conduct an
ocular inspection and re-enactment of the alleged crime
in the place where the crime was committed.” Motu

Rule 120 Judgment
SECTION 1. Judgment; definition and form.
Judgment
1. Definition:
The adjudication by the court that the accused is
guilty or not guilty of the offense charged and the
imposition on him of the proper penalty and civil
liability, if any
2. Form:
1. It must be written in official language,
2. It must be personally and directly prepared by
the judge,
3. It must be signed by the judge, and
4. It must contain clearly and distinctly:

39

1. a statement of facts, and

Issue:

2. the law upon which it is based

After finding that accused has, on the occasion of rape,
committed homicide, is the judge allowed to impose the
penalty of reclusion perpetua, instead of the mandatory
penalty of death, on the ground that he does not believe
in the death penalty?

1. Acquittal and dismissal distinguished
People v. Sandiganbayan 439 SCRA 390
September 29, 2004
Question:
How is dismissal distinguished from acquittal?
Answer:
Acquittal is always based on the merits, that is, accused
is acquitted because the evidence does not show that his
guilt is beyond a reasonable doubt; but dismissal does
not decide the case on the merits or that accused is not
guilty. Dismissal terminates the proceeding, either
because the court is not a court of competent jurisdiction,
or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court,
or the complaint or information is not valid or sufficient in
form and substance, etc.
The only case in which the word dismissal is commonly
but not correctly used, instead of the proper term
acquittal, is when, after the prosecution has presented all
its evidence, accused moves for the dismissal and the
court dismisses the case on the ground that the evidence
fails to show beyond a reasonable doubt that accused is
guilty; for in such case the dismissal is in reality an
acquittal because the case is decided on the merits. If the
prosecution fails to prove that the offense was committed
within the territorial jurisdiction of the court and the case
is dismissed, the dismissal is not an acquittal, inasmuch
as if it were so accused could not be again prosecuted
before the court of competent jurisdiction; and it is
elemental that in such case, accused may again be
prosecuted for the same offense before a court of
competent jurisdiction.

2. Statement of “facts and law”
People v. Bellaflor

233 SCRA 196
1994

June 15,

Facts:
Accused was convicted of arson. He filed a motion for
reconsideration. The judge granted the
motion and
acquitted him in a decision which failed to state the facts
and the law on which the reversal was based.
Issue:
May the order be appealed without placing accused in
double jeopardy?
Held:
Yes. The decision was a nullity. It did not state the facts
and the law on which it is based, as required by Sec. 14,
Art. VIII of the Constitution. Furthermore, it is a
requirement of due process that the parties to a litigation
be informed of how it was decided, with an explanation of
the factual findings and legal justifications that led to the
conclusions of the court.

249 SCRA 244
1995

No. Obedience to the rule of law forms the bedrock of our
system of justice. If judges, under the guise of religious or
political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to
exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes
the exercise of broad discretionary powers by those
acting under its authority. Under this system, judges are
guided by the Rule of Law, and ought “to protect and
enforce it without fear or favour,” resist encroachments
by governments, political parties, or even the
interference of their own personal beliefs. In addition,
Sec. 1, Rule 120, of the Rules of Court mandates that
after an adjudication of guilt, the judge should impose
“the proper penalty and civil liability, if any.”

4. Oral judgment
People v. Lascuna

225 SCRA 387
1993

August 18,

Facts:
As soon as accused presented his last witness, the RTC
judge orally promulgated judgment, by dictating it to the
stenographer, convicting him of Robbery with Homicide
and Rape. Later, the judge issued a 10-page decision.
Issue:
Is the act of the judge proper?
Held:
Yes. A trial judge who has painstakingly listened to the
testimonies of the witnesses, taken notes and
meticulously observed the latter’s deportment and
manner of testifying may logically be presumed to have
properly made up his mind on what the decision should
be. What may therefore remain for him is the actual
writing of the decision. Judges are not required to await
the transcription of the stenographic notes before they
can render their decisions.
Sec. 1, Rule 120 of the Rules of Court requires that a
judgment be in writing, personally and directly written by
the judge, signed by him and contains clearly and
distinctly a statement of facts and the law upon which it
is based. However, here the “verbal” judgment was
incomplete as it does not contain findings of fact and is
not signed by the Judge. Be that as it may, the infirmity
was corrected when the judge subsequently issued a fullblown Judgment – which contains a summary of the
evidence for the parties, findings of fact and his
signature.

SEC. 2. Contents of the judgment.
Contents of the Judgment
1. Judgment of Conviction:

3. Imposing the proper penalty
People v. Veneracion

Held:

October 12,

1. It shall state the:

40



legal qualification of the offense
constituted by the acts committed by
the accused, and



the
aggravating
or
mitigating
circumstances which attended its
commission;

2. It shall state the participation of the accused
in the offense, whether as:
1. principal,
2. accomplice, or
3. accessory after the fact;
3. It shall state the penalty imposed upon the
accused;
4. It shall state the civil liability or damages
caused by his wrongful act or omission to be
recovered from the accused by the offended
party, if there is any, unless the enforcement of
the civil liability by a separate civil action has
been reserved or waived;

"x x x The parties to a litigation should be informed of
how it was decided, with an explanation of the factual
and legal reasons that led to the conclusions of the trial
court. The losing party is entitled to know why he lost, so
he may appeal to the higher court, if permitted, should he
believe that the decision should be reversed. A decision
that does not clearly and distinctly state the facts and the
law on which it is based leaves the parties in the dark as
to how it was reached and is precisely prejudicial to the
losing party, who is unable to pinpoint the possible errors
of the court for review by a higher tribunal" (Lumanog, et
al. vs. People, GR No. 182555, Sept. 7, 2010).

There is something wrong in convicting somebody
without even a clear statement of why he is guilty.
According to the SC, why is it that the law requires,
especially in criminal cases, the judge should be careful in
rendering a judgment? Why must it be clearly stated why
you are guilty under Section 1 & 2. Why is it that under
Sections 1 and 2, the judgment must clearly state why
you are guilty? In the following cases of
PEOPLE vs. CAYAGO

312 SCRA 623 [1999]

2. Judgment of Acquittal:

HELD:

1. It shall state whether the evidence of the
prosecution:

“A strict compliance with the mandate of the said
provision is imperative in the writing of every decision.
Otherwise, the rule would simply be a tool for
speculations, which this Court will not countenance
specifically in criminal cases involving the possible
deprivation of human life.”



absolutely failed to prove the guilt of
the accused, or



merely failed to prove his guilt beyond
reasonable doubt;

2. In either case, it shall determine if the act or
omission from which the civil liability might arise did not
exist

1. Reason for the requirements
People v. Lizada

396 SCRA 657

January 24, 2003

Facts:
In its decision convicting the accused of 4 counts of rape,
the RTC merely summarized the testimonies of the
witnesses of the prosecution and those of accused and
his witnesses, and forthwith set forth the decretal portion
of said decision. The RTC even failed to state in said
decision the factual and legal basis for the imposition of
the supreme penalty of death on him.
Issue:
Is the decision valid?
Held:
No. Art. VIII, Sec, 14 of the 1987 Constitution provides
that “no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the
law on which it is based.” This requirement is reiterated
and implemented by Rule 120, Sec. 2 of the Rules of
Court. The purpose of the provision is to inform the
parties how the decision was reached by the court. The
losing party must be given an opportunity to analyze the
decision so that, if permitted, he may elevate what he
may consider its errors for review by a higher tribunal.
Furthermore, the decision if well-presented and reasoned,
may convince the losing party of its merits and persuade
it to accept the verdict in good grace instead of
prolonging the litigation with a useless appeal.

PEOPLE vs. BUGARIN

273 SCRA 384 [1997]

HELD:
“The requirement that the decisions of courts must be in
writing and that they must set forth clearly and distinctly
the facts and the law on which they are based serves
many functions. It is intended, among other things, to
inform the parties of the reason or reasons for the
decision so that if any of them appeals, he can point out
to the appellate court the findings of facts or the rulings
on points of law with which he disagrees. More than that,
the requirement is an assurance to the parties that, in
reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard
against the impetuosity of the judge, preventing him from
deciding by ipse dixit [by instinct]. Vouchsafed neither the
sword nor the purse by the Constitution but nonetheless
vested with the sovereign prerogative of passing
judgment on the life, liberty or property of his fellowmen,
the judge must ultimately depend on the power of reason
for sustained public confidence in the justness of his
decision. The decision of the trial court in this case
disrespects the judicial function.”
In other words, among the three branches of government,
the judiciary is the weakest. It has no power of the purse
or the sword. Purse – congress holds the budget. Sword –
the judiciary has no army to enforce decisions unlike the
executive where the executive is already the commanderin-chief of the AFP. So how can the judiciary command the
respect of the people? There is only one way – the force
of its decisions – that its decisions are well argued and
logical. This is the only way to have the people believe in
the judiciary. If it cannot cope with this, it is an insult, an
attack to judges who do not know how to write decisions,
because this is how the judiciary earns the respect of the
people. Otherwise, baka wala ng maniwala sa korte. That
is how the SC explained that idea in the case of Bugarin.

41

One interesting case in relation to Section 2 which dealt
with the double jeopardy rule was the case of
ABAY, SR. vs. GARCIA

162 SCRA 665

FACTS:
On the day of trial, the accused was there with his lawyer.
The offended party was not in court. The judge asked the
fiscal what action he wanted to proceed with. The fiscal
said, “We will look at the records, whether the offended
party were properly informed.” Finding that the offended
party was properly informed, the fiscal said [oral motion],
“In that case your honor, we are moving for the dismissal
of the criminal case for lack of evidence now upon us –
wala ang offended party eh.” The judge dictated in open
court, “Alright, the case is dismissed for failure to
prosecute.” With that, the accused went home happy.
After the accused left and shortly thereafter, the offended
party arrived with his lawyer. After they learned of the
dismissal they explained that they had to travel far, had a
flat tire and got caught in traffic. The judge found their
earlier non-appearance as justified and ordered the
revocation or reconsidered the earlier decision of
dismissal, consequently resetting the trial.
The accused learned of the succeeding events and
protested that this was a case of double jeopardy. He
contends that all the necessary elements of double
jeopardy are present: valid complaint, valid information
filed in a competent court; had an arraignment; and the
case was dismissed without his express consent.
HELD:
The order of dismissal is equivalent to an acquittal but a
judgment of acquittal under Rule 120 must be in writing.
The order dismissing the case was not in writing but was
dictated in open court. It was never reduced into writing.
What was reduced to writing was the second order which
revoked the first order. Since it was never in writing,
there was no judgment of acquittal. Therefore, there is
no double jeopardy.
“However, this order of dismissal must be written in the
official language, personally and directly prepared by the
judge and signed by him conformably with the provisions
of Rule 120, section 2 of the Rules of Court. In the instant
case, it is very clear that the order was merely dictated in
open court by the trial judge. There is no showing that
this verbal order of dismissal was ever reduced to writing
and duly signed by him. Thus, it did not yet attain the
effect of a judgment of acquittal, so that it was still within
the powers of the judge to set it aside and enter another
order, now in writing and duly signed by him, reinstating
the case.”

This is how the Supreme Court skirted the double
jeopardy rule by applying Rule 120, Sections 1 and 2.
The 2nd paragraph of Section 2 is new and it radically
changed the language of the previous rule. Section 2,
second paragraph:
In case the judgment is of acquittal, it shall state
whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely
failed to prove his guilt beyond reasonable doubt. In
either case, the judgment shall determine if the act
or omission from which the civil liability might arise
did not exist. (2a)
This is just a repetition of Rule 111, Section 2 [last
paragraph] when the judgment acquits the accused, the

judgment should state whether the evidence of the
prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil
liability might arise does not exist. Because generally if
you are acquitted on reasonable doubt, it will not bar the
filing of a separate civil action. But if the fact from which
the civil liability might arise does not exist, then the
acquittal is already a bar to a future civil liability.
Compare this with the language of the 1985 Rules, Rule
120, Section 2, last paragraph:
In case of acquittal, unless there is a clear showing
that the act from which the civil liability might arise
did not exist, the judgment shall make a finding on
the civil liability of the accused in favor of the
offended party.
According to the 1985 Rules, if the accused is acquitted
based on reasonable doubt, the court may order the
accused to satisfy civil liability because the cause of
action in the civil case is already proven although the
accused is acquitted. It is possible for the accused to be
acquitted and yet is found to be civilly liable based on the
85 Rules.
The rule under the 1985 Rules was taken from decided
cases such as the case of METROBANK VS. CA (188 SCRA
259). In this case, the accused was charged with estafa.
After trial, the court said that there was no estafa. It is
only a simple loan – so there is no crime. Normally, the
next step is to let the offended party file a civil case to
demand payment of the loan.
But in the case of
Metrobank, the SC said that it is a double effort. The
Supreme Court said, “While it is true that petitioner
Metrobank can no longer collect private respondent's civil
liability on the basis of the criminal case filed, it could
nonetheless collect the said civil liability prayed for on the
basis of the non-payment of the loan contracted by
respondent spouses from the bank. There appear to be no
sound reasons to require a separate civil action to still be
filed considering that the facts to be proved in the civil
case have already been established in the criminal
proceedings where the accused was acquitted. To require
a separate civil action simply because the accused was
acquitted would mean needless clogging of court dockets
and unnecessary duplication of litigation with all its
attendant loss of time, effort, and money on the part of
all concerned.” This was the 1985 Rules.

Q: Now, is that rule still valid under the 2000 Rules?
A: The new rule is silent. There is nothing here that says
that the accused may be acquitted but found civilly liable
unlike the 1985 Rules. It only says that in case of
acquittal, the judgment should state whether the
acquittal is based merely on reasonable doubt or the
prosecution absolutely failed to prove the guilt of the
accused. In either case, the judgment shall determine if
the act or omission from which the civil liability might
arise does not exist. But as it is worded now, it would
seem, you should file a separate civil case. And the
practice of holding the accused liable civilly in a criminal
case where he is acquitted, seems to be no longer
possible.
Under the new rules, just acquit – let him file a separate
civil case. The old rule is simplier: No need! Dun na
mismo sa criminal case – acquit him but make him civilly
liable. But now, the language is different. It is a radical
departure from the 1985 rules.

42

1. Situation:
SEC. 3. Judgment for two or more offenses.
Effects
when
Duplicitous

Complaint

or

Information

1. There is variance between:
is

1. General Rule:


When 2 or more offenses are charged in a single
information, accused may file a motion to quash
the same before trial

2. Effect of failure to file a motion to quash a
duplicitous information before trial:
defect,

1. The accused is deemed to have waived the

convict him of as many offenses as are
charged and proved, and



impose on him the penalty for each
offense, setting out separately the
findings of fact and law in each offense

the offense charged in the complaint or
information, and



that proved after the trial; and

2. The offense as charged is included in or
necessarily includes the offense proved
2. Effects – the accused shall be convicted of:


The offense proved which is included in the
offense charged, or



The offense charged which is included in the
offense proved

2. The court may:




1. Conviction for graver offense
a. Rape
People v. Lucas

232 SCRA 537

May 25, 1994

Issue:
1. Failure to object to charges
People v. Tira

430 SCRA 134

May 28, 2004

May an accused charged with attempted rape be
convicted of consummated rape as proved by testimony
during the trial that was not objected to by accused?

Facts:

Held:

Accused was charged in one information for possession
of “shabu”, a regulated drug and for possession of
marijuana, a prohibited drug. While the trial court
convicted him of illegal possession of “shabu”, the
Solicitor General asserts that he should be convicted of
illegal possession of marijuana.

No, as this would be in violation of Sec. 4, Rule 120 of the
Rules of Court. The offense charged in the information
(attempted rape) is necessarily included in the offense
proved (consummated rape). Accordingly. Accused should
be convicted of attempted rape only.

Issue:

Variance in the mode of the commission of the
offense-

Who is correct?
Held:
Both are wrong. There are 2 separate crimes: (a)
possession of a regulated drug [shabu] under Sec. 16 of
R.A. 6425, and, (b) possession of a prohibited drug
[marijuana] under Sec. 8. Although only one information
was filed against accused, he could still be tried and
convicted for the crimes alleged therein and proved by
the prosecution. Accused should have filed a motion to
quash before arraignment under Sec. 3, Rule 117 of the
Rules of Court. Since he failed to do so, under Rule 120,
Sec. 3, he may be convicted of the 2 crimes charged.
Let’s go back to Rule 110 on duplicitous complaint or
information. Under Section 3 of Rule 110, this is defined
as a complaint or information which charges more than
one offense. This is not allowed. And the remedy here is
you file a Motion to Quash under Section 3 [f], Rule 117.
But the defect is waivable because if you do not file a
Motion to Quash, the trial can proceed and if you are
found guilty for committing 2 or more crimes, then there
will be 2 or more penalties. Under Section 3, the court
may convict the accused of as many offenses as are
charged and proved and impose on him the penalty for
each offense if the accused fails to object the duplicitous
complaint before the trial.

SEC. 4.
Rules in Case of Variance

In one case, the testimony of the victim shows that she
was roused from sleep with the male organ of the
accused inserted in her mouth. Both the RTC and the CA
failed to notice the variance between the allegations in
the information for rape and that proven at the trial on
the mode of committing the offense. The information
alleges "force and intimidation" as the mode of
commission, while the victim testified during the trial that
she was asleep at the time it happened and only awoke
to find the male organ of the accused inside her mouth.
This variance is not fatal to the conviction of the accused
for rape by sexual assault. A variance in the mode of the
commission of the offense is binding upon the accused if
he fails to object to evidence showing that the crime was
committed in a different manner than what was alleged.
In this case, the accused did not object to the
presentation of evidence showing that the crime was
committed in a different manner than what was stated in
the information. The variance is not a bar to his
conviction of the crime charged in the information (People
vs. Corpuz, 482 SCRA 435; People vs. Abello GR No.
151952, March 25, 2009).

b. Theft
People v. Salazar

277 SCRA 67

August 11, 1997

Issue:
May an accused charged with theft of a pistol worth
P6,000 be convicted of the graver offense of theft of said

43

pistol worth P6,500 where he fails to object to the
evidence as to the value of the gun?
Held:
Yes. While it was proven during the trial that the stolen
pistol was worth P6,500, the information placed the value
at P6,000 only. However, the accused did not object to
the higher valuation and is thus deemed to have waived
his right to avail of the lower penalty under Art. 309[3] of
the Revised Penal Code. Consequently, he may be
penalized for theft under Art. 309(2) of the said Code.

c. Illegal recruitment
People v. Reyes

242 SCRA 264

Issue:
May the RTC convict an accused of a lesser offense
included in the offense charged, under Sec. 4, Rule 120 of
the Rules of Court, even if the lesser offense falls within
the jurisdiction of the MTC?
Held:
No. Sec. 4, Rule 120 applies exclusively to cases where
the offense as charged is included in or necessarily
includes the offense proved. It presupposes that the court
rendering judgment has jurisdiction over the case based
on the allegations in the information. However, in this
case, from the onset of the criminal proceedings, the RTC
had no jurisdiction to hear and decide the case.

March 9, 1995

Issue:

We will go to this basic principle:

May an accused charged separately in several
informations for simple illegal recruitment pending before
the same court be convicted of illegal recruitment in a
large scale under Art. 38 (b) of the Labor Code?

Mr. Calizo is charged in an information of committing one
crime. However, during the trial, what was proven is
another crime. What will happen now? Well, we will have
to ask this question –

Held:

Q: Is the offense proven included in the offense charged
or does the offense proven includes the offense charged?

No. The different cases of simple illegal recruitment
cannot be taken into account for the purpose of Art.
38(b). When the Labor Code speaks of illegal recruitment
“committed against 3 or more persons individually or as a
group,” it must be understood as referring to the number
of complainants in each case who are complainants
therein, otherwise, prosecutions for single crimes of
illegal recruitment can be cumulated to make out a case
of large scale illegal recruitment. In other words, a
conviction for large scale illegal recruitment must be
based on a finding in each case of illegal recruitment of 3
or more persons whether individually or as a group.

2. Conviction for lesser offense
a. Lesser offense has prescribed
Magat v. People

201 SCRA 21

August 21, 1991

Issue:
Under Sec. 4, Rule 120, of the Rules of Court, may an
accused be convicted of a lesser offense necessarily
included in the offense charged if the former had already
prescribed at the time of the institution of the complaint?
Held:
No. It was stated in Francisco vs. CA (122 SCRA 538
[1983]):
“As a general rule, one indicted for an offense not barred
by limitation, but convicted of a lesser included offense
which is so barred, is entitled to discharge. It frequently
happens that a change of felony includes an offense of a
lower grade with a different period of limitation, so that,
while the felony is not barred, the statute has run as to
the lesser offense. In this situation, the rule is that if the
statute has not run against the felony, while the lesser
offense is barred, the bar cannot be evaded by indicting
the defendant for the felony and convicting him of the
lesser offense.” (State v. King, 84 SE 2d 313; 47 ALR 2d
878 at pp. 545-546).

b. Lack of jurisdiction over lesser offense
Pangilinan v. CA

321 SCRA 51
1999

A: If YES, then apply Section 4. You convict the accused of
the offense proved which is included in the offense
charged, or of the offense charged which is included in
the offense proved.

Q: What if kung malayong-malayo? The crime proved is
different from the crime charged like for example: The
crime charged is homicide and what is proved is robbery.
What will happen? Will you apply Section 14 of Rule 110
on substitution of information?
A: No, you will not apply Rule 110 Section 14 because we
are already through with that stage. We are now in the
trial stage where the crime proved is different from the
crime charged. Therefore, the proper remedy here is
Section 19 of Rule 119, last paragraph:
RULE 119, SEC. 19. When mistake has been made in
charging the proper offense. – When it becomes
manifest at any time before judgment 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 accused shall not be discharged if there
appears good cause to detain him. In such case, the
court shall commit the accused to answer for the
proper offense and dismiss the original case upon the
filing of the proper information. (11a)

[Editor: Try to correlate this with Section 14, Rule 110.
They are similar. But for clearer understanding, please go
back to Section 19, Rule 119 in the case of GALVEZ on the
distinctions between these two provisions. Thanks!]

SEC. 5. When an offense includes or is included in
another.
Rules:
1. An offense charged necessarily includes the
offense proved:

December 17,

44

When some of the essential elements or ingredients
of the offense charged, as alleged in the complaint or
information, constitute the offense proved
2. An offense charged is necessarily included in
the offense proved
When the essential ingredients of the offense
charged constitute or form part of those constituting
the offense proved

1. Homicide and reckless imprudence
Magno v. People

414 SCRA 246

October 23, 2003

Issue:
May an accused charged with homicide be convicted of
reckless imprudence resulting in homicide?
Held:
Yes. Sec. 4 and 5 of Rule 120 of the Rules of Court allows
conviction of the accused for the offense proved which is
included in the offense charged. The quasi offense of
reckless imprudence resulting in homicide is necessarily
included in a charge of murder. While a criminal negligent
act is not a simple modality of a wilful crime, but a
distinct crime in itself, defined as an offense in the
Revised Penal Code, it may, however, be said that a
conviction for the former can be had under an information
exclusively charging the commission of a wilful offense
upon the theory that the greater includes the lesser
offense.

Q: When does an offense include another, or when is it
included in the other?
A: Section 5, Rule 120.
For example, Mr. Tiamzon is charged with MURDER and
what is established is HOMICIDE. Homicide is included in
the crime of murder. The elements are identical. The only
difference is that there are no qualifying circumstances in
homicide. Or, THEFT is included in ROBBERY. The only
missing element in theft is violence or intimidation. Or,
LESS PHYSICAL INJURY is included in SERIOUS PHYSICAL
INJURY.
In that case, the case will not be dismissed. Just convict
the accused of the crime proven which is included in the
crime charged. Such that if you are charged with murder,
you can be convicted for homicide.
Q: Suppose the accused is charged with homicide and
what was proven is murder. So it is the other way around.
What is the correct procedure?
A: Convict him for the crime charged. Do not dismiss the
case. Although the crime proved (murder) includes that
which is charged (homicide), a person cannot be
convicted of a more serious offense than that charged.
The accused can only be convicted for homicide and the
qualifying circumstances of murder should be treated
only as an ordinary aggravating circumstances. The same
is true with theft and robbery. [c.f. discussions on Section
8, Rule 110]

We will now go to some important cases.
VINO vs. PEOPLE OF THE PHILIPPINES
626

178 SCRA

Mr. Acelar is accused of murder as principal by direct
participation. After trial, it was established that Mr. Acelar
is only an accessory.
ISSUE:
Can a person accused of murder as a principal may be
convicted as an accessory?
HELD:
YES, a person charged with an offense as principal maybe
convicted as an accessory because the greater
responsibility includes the lesser responsibility. Accessory
is a lesser degree of participation.
This is not a case of a variance between the offense
charged and the offense proved. Here, the accused was
charged with murder and what was established by
evidence was also murder. There is here no mistake in
charging the proper offense. The variance is in the
participation of the accused in the commission of the
crime which is not covered by any specific provision.
What is covered by the rules is when there is a mistake in
charging the proper offense, or when there is a total
mistake because the crime was never committed.

Q: What is the difference between malversation and
technical malversation?
A: Although both crimes are committed by public officers,
malversation is punishable under Article 217 of the RPC,
whereas, technical malversation is not referred as such in
the RPC. Technical malversation is denominated as Illegal
Use of Public Funds under Article 220 of the RPC.
EXAMPLE: Technical malversation/Illegal Use of Public
Fund is when a public officer uses funds appropriated for
a certain public purpose (let’s say, for the construction of
a school building) for another public purpose (like
widening or cementing of roads.)

PARUNGAO vs. SANDIGANBAYAN

197 SCRA 173

FACTS:
A public officer was charged with technical malversation
of public funds or property. The trial court found that the
crime committed is not technical malversation. It is more
of malversation.
ISSUE:
May a person, charged with technical malversation under
Article 220 of the RPC, be found guilty of malversation
under Article 217?
HELD:
NO. He cannot be convicted of malversation because
there is no similarity between these two crimes. “In
malversation
of
public
funds,
the
offender
misappropriates public funds for his own personal use or
allows any other person to take such public funds for the
latter's personal use. In technical malversation, the public
officer applies public funds under his administration not
for his or another’s personal use, but to a public use other
than that for which the fund was appropriated by law or
ordinance.”
“Technical malversation is, therefore, not included in nor
does it necessarily include the crime of malversation of
public funds charged in the information.”

FACTS:

45

“The Sandiganbayan therefore erred in not ordering the
filing of the proper information against the petitioner, and
in convicting him of technical malversation in the original
case for malversation of public funds. Ordinarily, the
court’s recourse would be to acquit the petitioner of the
crime of illegal use of public funds without prejudice, but
subject to the laws on prescription, to the filing of a new
information for such offense.”
“Considering however that all the evidence given during
the trial in the malversation case is the same evidence
that will be presented and evaluated to determine his
guilt or innocence in the technical malversation case in
the event that one is filed and in order to spare the
petitioner from the rigors and harshness compounded by
another trial, not to mention the unnecessary burden on
our overloaded judicial system, the Court acquitted the
accused of the crime of illegal use of public funds.”
But Justice Feliciano dissented, “Why question the
procedure used for violation the law?” Anong klaseng
decision ito? Even before filing the correct information,
the SC already ruled that you are innocent? According to
him, the correct procedure is not to dismiss both cases
but to acquit the accused of the original complaint of
technical malversation and require the filing of a new
information charging the proper offense (malversation).
So this is one of the rare cases where the SC decided not
to be very technical and went straight to the decision.
Siguro the SC would like to save time.

Q: If a person is charged with rape, can he be convicted
of qualified seduction? Is qualified seduction included in
rape?
A: It seems that the elements are different. In rape, there
is no consent in the sexual intercourse. But in seduction,
there is consent although there is abuse of authority,
relationship or there is deceit. But in the 1993 case of
PEOPLE vs. SUBING-SUBING

228 SCRA 168

HELD:
“A person charged with rape can be convicted of qualified
seduction if the latter though not alleged in the
complaint, appears in the victim’s affidavit.”
It seems that there is something wrong here; the
complaint says rape, but the victim’s affidavit says
qualified seduction. However the SC says it is fine. It is
tantamount to the same thing: not found in the complaint
but found in the victim’s affidavit. This is another queer
decision of the SC.

PECHO vs. SANDIGANBAYAN

Can a person charged with a crime punishable under a
special law be found guilty instead of a felony in the RPC?
Can a crime under the RPC be considered as included in
the crime under a special law?
HELD:
There is no such thing as attempted violation of the AntiGraft Act. The attempted, frustrated and consummated
stages only apply to felonies in the RPC. Under crimes
punishable by a special law, you only punish the
consummated stage. You do not punish the attempted
and frustrated stages unless the special law says so.
Since there was no injury caused to the government due
to the time discovery, there was no violation of the AntiGraft Act.
However, they made false entries, thereby committing
falsification. Therefore, they can be convicted of
falsification of public or commercial documents.
So in this case, it started as attempted violation of the
Anti-Graft Act (special law) and ended up as a conviction
for falsification under the RPC. A crime under the RPC was
considered as included in the crime malum prohibitum

PEOPLE vs. VERZOSA

294 SCRA 466 [1998]

FACTS:
Appellants were charged for violating PD 532 – Anti-Piracy
And Anti-Highway Robbery Law Of 1974.
ISSUE:
Can a person charged for violating a special law be found
guilty for a crime of robbery with homicide under the
RPC?
HELD:
YES. What appellants committed is the crime of robbery
with homicide, which is distinct from the offense covered
by P.D. 532 which punishes, among others, indiscriminate
highway robbery.
“Nonetheless, the designation of the crime in the
information as “highway robbery with homicide (Violation
of PD 532)” does not preclude conviction of the
appellants of the crime of robbery with homicide (Article
294 [1] of the RPC). In the interpretation of an
information, what controls is not the designation but the
description of the offense charged. The crime of robbery
with homicide is clearly alleged in the information
notwithstanding its erroneous caption. It is an offense
necessarily included in that with which they were
charged.”

238 SCRA 116

FACTS:

SEC. 6. Promulgation of judgment.

There was somebody who imported highly taxable items.
Obviously, he had some connections with the Bureau of
Customs. He declared his items different form which he
brought, so the taxes are less. The obvious intention it to
cheat the government of the correct amount of taxes. He
prepared the import entry declaring false information or
entries. However, the Collector of Customs ordered a spot
inspection. So the attempt did not succeed.

Promulgation of Judgment

The importer, together with the Customs people were
charged with attempted violation of the Anti-Graft Act.
So, there was an attempt to cause undue injury to the
government by depriving it of its proper taxes.

rendered

ISSUE:

1. How judgment is promulgated:
of:

1. General Rule – by reading it in the presence
1. the accused, and
2. any judge of the court in which it was
2. Exceptions:


If the conviction is for a light
offense – it may be pronounced in the

46

presence
of
representative

his

counsel

or



When the judge is absent or
outside the province or city – it
may be promulgated by the clerk of
court



If the accused is confined or
detained in another province or
city
– it may be promulgated by the
executive judge of the RTC having
jurisdiction
over
the
place
of
confinement
or
detention
upon
request of the court which rendered
the judgment.



3. If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause:
1. he shall lose the remedies available in these
rules against the judgment, such as:

3. Duty of clerk of court before promulgation – give
notice to the accused requiring him to be present at the
promulgation, either:
1. Personally, or
or

warden

and

3. Served at his last known address, if the
accused was tried in absentia because he:


jumped bail, or



escaped from prison

reconsideration; and

promulgation

of



surrenders, and



files a motion for leave of court to avail
of said remedies;

promulgation;
3. He must prove that his absence was for a
justifiable cause,

But 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.

bondsman



2. He must state the reasons for his absence at
the scheduled

2. To approve the bail bond pending appeal

his

new trial, and

1. Within 15 days from
judgment, the accused:

1. Accept the notice of appeal, and

Through



4. Last chance for accused to avail of above
remedies; requisites:

promulgation of judgment despite notice – it 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.

2.
counsel, or

appeal,

2. the court shall order his arrest

In case the accused fails to appear
at the scheduled date of

2. The court promulgating the judgment shall have
authority to:



Rules with Respect to Accused Tried in Absentia
1. The notice requiring the accused to be present
at promulgation shall be served at his last known
address – if the accused was tried in absentia because
he:
1. jumped bail, or
2. escaped from prison
2. If the accused fails to appear at the scheduled
date of promulgation of judgment despite notice –
the promulgation shall be made by:
1. recording the judgment in the criminal docket,
and
2. serving him a copy thereof at his last known
address or through his counsel

4. He shall only be given 15 days from notice to
avail of said remedies

1. Absence of accused
Pascua v. CA

348 SCRA 197

December 14, 2000

Question:
When may judgment be promulgated despite the absence
of the accused?
Answer:
Judgment in a criminal case must be promulgated in the
presence of the accused, except where it is for a light
offense, in which case it may be pronounced in the
presence of his counsel or representative, and except
where the judgment is for acquittal, in which case the
presence of the accused is not necessary. Likewise,
regardless of the gravity of the offense, under Sec. 6,
Rule 120, if accused fails to appear despite notice,
judgment may be promulgated in absentia, provided: (a)
that the judgment be recorded in the criminal docket; and
(b) that a copy thereof shall be served upon the accused
or counsel.

2. Where judgment is acquittal
Cruz v. Pascual

244 SCRA 111

May 12, 1995

Issue:
May a judgment of acquittal be promulgated in the
absence of accused and his counsel?
Held:
Yes. In a verdict of acquittal, the presence of accused is
not indispensable since no appeal is necessary and the
judgment becomes final and executory immediately after
promulgation. The reading of the sentence in open court
to accused’s counsel or giving a copy of the decision to
accused or his counsel is sufficient promulgation.

47

Even in the promulgation of the judgment of conviction,
the presence of accused is not necessary if the conviction
is for a light offense inasmuch as the judgment may be
read to his counsel or representative, or if accused is tried
in absentia or fails to appear and the promulgation is
done in absentia, the promulgation shall consist in the
recording of the judgment in the criminal docket and a
copy thereof served upon accused or his counsel.

3. Reason for presence of accused
Pascua v. CA

348 SCRA 197

December 14, 2000

Question:
What is the reason for requiring the presence of the
accused during promulgation of judgment?

Issue: Was there substantial compliance with Sec. 6
Rule 120 of the Rules of Court?
Held:
No. Where the judgment is promulgated in absentia, all
means of notification must be done to let the absent
accused know of the judgment of court. The means
provided by the Rules are: [1] the act of giving notice to
all persons or the act of recording or registering the
judgment in the criminal docket (which Sec. 6 mentions
first showing its importance); and [2] the act of serving a
copy thereof upon the accused (at his last known
address) or his counsel. In a scenario where the
whereabouts of the accused are unknown (as when he is
at large), the recording satisfies the requirement of
notifying the accused of the decision wherever he may
be.

Answer:
In U.S. v. Beecham, (28 Phil. 258), the Court stated the
reasons for requiring the attendance of accused in case of
conviction for a grave or less grave offense, so that: [1]
accused may be identified by the court as the real party
adjudged to be punished; [2] accused may have a chance
to plead or move in arrest of judgment; [3] he may have
an opportunity to say what he can say why judgment
should not be given against him; and [4] the example of
accused, who is found guilty of misdemeanours of a gross
and public kind may tend to deter others from the
commission of similar offenses.

4. Right to appeal of absent accused
Moslares v. CA

291 SCRA 440

June 26, 1998

Issue: Does an accused who unjustifiably fails to
appear during promulgation lose his right to appeal?
Held:
No. The last sentence of Sec. 6, Rule 120 of the Revised
Rules on Criminal Procedure states that “if the judgment
is for conviction, and the failure of the accused to appear
was without justifiable cause, the court shall further order
the arrest of the accused, who may appeal within 15 days
from notice of the decision to him or his counsel.” This
means that whether or not the absence of the accused
during promulgation is justified, the right to appeal is not
lost, the only requirement being that the notice of appeal
must be filed within 15 days from notice of the judgment.
(Not anymore applicable)

5. Recording in criminal docket
Pascua v. CA

348 SCRA 197

December 14, 2000

6. Presence of counsel of accused
Jamiliano v. Cuevas

July 23, 1987

Issue:
May an accused file a motion for new trial or
reconsideration 23 days after the decision was
promulgated to him without his counsel, but 15 days from
service of said decision to his counsel?
Held:
No. Under Sec. 6, Rule 120, a valid promulgation would
be a reading of the sentence or judgment in the presence
of the accused and any judge of the court in which it was
rendered. Sec. 6 does not require the presence of counsel
for the validity of the promulgation.

7. Absence of offended party
Pagayao v. Imbing

363 SCRA 26
2001

August 15,

Issue:
May the court promulgate the judgment even in the
absence of the private offended party?
Held:
Yes. The attendance of the private offended party in the
promulgation of judgment is not necessary. Only the
presence of the accused is required in the promulgation
of judgment in the trial courts.

8. Promulgation of decision on appeal
Report on the On-the-Spot...

Facts:
On May 5, 1998, the court promulgated the decision
convicting accused of 26 counts of violation of B.P. 22.
The dispositive portion was read in the presence of
complainant, public prosecutor and counsel for the
accused, though accused herself was absent. All, except
the accused, received written copies of the decision. On
June 8, 1998 accused filed a notice of change of her
address with the court and asked for the lifting of the
warrant for her arrest. On June 22, 1998, she filed a
notice of appeal. However, as of Oct. 28, 1998, the
judgment was not recorded in the criminal docket of the
RTC.

152 SCRA 158

451 SCRA 300

February 15, 2005

Question:
Must an RTC promulgate its judgment in cases decided in
the exercise of its appellate jurisdiction?
Answer:
There is no need to promulgate the decision in a case
decided by the RTC by virtue of its appellate jurisdiction.
The judgment which the rule requires to be promulgated
is the sentence rendered by the trial court, not the
judgment of the appellate court sent to the trial court, the
latter being unnecessary to be promulgated to the
accused because it is presumed that the accused or his

48

attorney had already been notified thereof by the
appellate court. The latter court sends the copy of his
judgment to the trial court not for promulgation or
reading thereof to the accused, but for execution of the
judgment against him.
It is not necessary that the promulgation be made before
the very same judge who rendered the decision.
Example: The RTC of Davao has many branches. Suppose
the promulgation will be made in the RTC Branch 8, but
on the date of promulgation, the judge thereof got sick.

Q: Can the decision of RTC Branch 8 be promulgated
before the judge of RTC Branch 9?
A: YES, a decision rendered by one branch of a court may
be promulgated before another branch of the same court
precisely because it is the same court although of
different branches. Section 6, reads: “The judgment is
promulgated xxx in the presence of xxx ANY JUDGE of the
court in which it was rendered.”

Do not confuse this on what happened in the 1993 case
of
PEOPLE vs. CFI OF QUEZON BRANCH 10
457

227 SCRA

FACTS:
Accused was charged criminally in the RTC Branch 10
presided by Judge A who tried the case but retired
without deciding the case. Meanwhile, Judge B, presiding
judge of Branch 3 was designated temporarily to take
over Branch 10 and among the cases submitted to him
for decision was the undecided case of the accused. So,
he read the records and he wrote the decision on May 22.
On June 9, Judge C was appointed presiding judge of
Branch 10. He took his oath of office the following day,
June 10, terminating automatically the designation of
Judge B. With the appointment of Judge C, Judge B was
only left with his original sala – Branch 3. On June 20, the
deputy clerk of court promulgated the decision of Judge
B made on May 22.

an incumbent member of a court of equal jurisdiction,
and his decisions written thereafter would be invalid.”

Q: In places where there is only one branch of the RTC, no
other sala, who promulgates the decision in case of the
absence of the judge?
A: The clerk of court. Under Section 6, “When the judge is
absent or outside the province or city, the judgment may
be promulgated by the CLERK OF COURT.”
Q: Suppose the accused has several cases in different
places. Like for example he has a case in Davao and
another in Cebu. After the trial in Davao, he was sent to
Cebu for another trial. In the meantime, tapos na yung sa
Davao, promulgation na lang, but the accused is in Cebu.
What will happen if there will be a promulgation in the
Davao case?
A: Under Section 6, the Davao court will send the decision
to the RTC Executive Judge of Cebu and let it be
promulgated there in the presence of the accused.

Now, a new clause is inserted in Section 6 which provides
that “if the decision of the trial court convicting the
accused changed the nature of the offense from nonbailable to bailable, the application for bail can only be
filed and resolved by the appellate court.” So in the
previous example, if the accused is charged (in Davao) of
murder but later convicted for homicide, the RTC
Executive Judge of Cebu has no power to entertain any
application for bail if the accused wanted to appeal the
conviction. Such application can only be filed and
resolved by the appellate court. This is similar to Section
5 of Rule 114 on Bail –
x x x x 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.
The above provision was taken and modified in the case
of OMOSA vs. CA (266 SCRA 281 [1997])

ISSUE:
Was the judgment penned by Judge B, detailed to the
vacant branch of the court, but promulgated after the
permanent judge has been duly appointed to the
vacancy, valid?
HELD:
YES. It is valid. Judge B did not retire. He is still in the
SAME court although in another branch.
“It is not necessary that Judge B be the presiding judge of
Branch 10 at the time his decision was promulgated since
even after the expiration of his temporary designation at
Branch 10 he continued to be an incumbent of Branch 3.
After all, the RTC is divided into several branches, each of
the branches is not a court distinct and separate from the
others. Jurisdiction is vested in the court, not in the
judges, so that when a complaint or information is filed
before one branch or judge, jurisdiction does not attach
to said branch of the judge alone, to the exclusion of the
others.”
“Indeed, it would have been different altogether if the
judge whose decision was promulgated had, prior to its
promulgation, died, resigned, retired, been dismissed,
promoted to a higher court, or appointed to another office
with inconsistent functions. Then, he would no longer be

Q: Is there such a thing as promulgation by proxy?
A: YES. A decision may be promulgated even without the
presence of the accused but ONLY if the conviction is for a
light offense. Generally, promulgation is by personal
appearance. However under the Section 6, “if the
conviction is for a light offense, the judgment may be
pronounced in the presence of his COUNSEL or
REPRESENTATIVE.”
PEOPLE vs. PRADES

July 30, 1998

HELD:
“In the Supreme Court and the Court of Appeals, the
judgment is promulgated by merely filing the signed copy
thereof with the Clerk of Court who causes true copies of
the same to be served upon the parties, hence the
appearance of the accused is not even required there as
his presence is necessary only in the promulgation of the
judgments of trial courts.”

Q: Is the presence of the complainant required during the
promulgation?

49

A: NO. There is no rule requiring a judge to notify the
complainant of the date of promulgation of judgment in
criminal cases. What the Rules of Court particularly
Section 6, Rule 120 requires is that the promulgation be
made in the presence of the accused. (Ramirez vs.
Macandog, 144 SCRA 462)
Q: Is the presence of the counsel of the accused required
during the promulgation?
A: NO. The Rules of Court does not require the presence
of counsel for the validity of the promulgation. The
accused is not required to be present at the promulgation
if the conviction is for light offense, in which case, his
counsel or representative may appear in his behalf. But
definitely, in any case, the promulgation is valid even the
counsel does not appear thereat. (Pangilano vs. Nuevas,
152 SCRA 158)

scheduled date of promulgation of judgment
despite notice.

SEC. 7. Modification of judgment.
Modification of Judgment
1. What juddgment may be modified or set aside:
1. Judgment of acquittal – No
2. Judgment of conviction – Yes
2. Requisites
conviction:

Q: What happens if the accused was tried in absentia? Or
before the promulgation he escaped or jumped bail?
A: Under Section 6, 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.

So there are six (6) types of promulgation of
judgment under Section 6:
1.

Ordinary judgment - promulgated by reading it in
the presence of the accused and any judge of
the court in which it was rendered. This applies
only to trial courts (People vs. Prades, supra);

2.

Promulgation by the Clerk of Court - when the
judge is absent or outside the province or city;

3.

Promulgation by the Executive Judge - 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;

4.

Promulgation in absentia - 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;

5.

Promulgation by recording the judgment – in
case the accused fails to appear at the

modification

of judgment of



The accused must file a motion for the
modification of judgment:



The motion must be filed before:
1. such judgment becomes final, or
2. an appeal is perfected

3. When a judgment becomes final:

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 through 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 for a
justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice.

for



Judgment of acquittal – immediately upon
promulgation



Judgment of conviction:


after the lapse of the period for
perfecting an appeal [except when the
death penalty is imposed as there is an
automatic review by the CA], or



even within the period to appeal, when
the sentence has been partially or
totally satisfied or served, or



when the accused has waived in writing
his right to appeal, or



when the accused has
probation.

applied for

1. On motion of prosecution
People v. Viernes

372 SCRA 231 December 13,
2001

Facts:
Accused was convicted of 2 counts of rape and one count
of attempted rape. For the 2 rape charges, he was meted
2 penalties of reclusion perpetua, and for the attempted
rape, he was given the sentenced of from 4 years to 8
years and one day. On motion of the prosecution, one day
after promulgation, the court modified the sentence and
imposed on him the death penalty twice for rape, and a
maximum sentence of reclusion temporal for attempted
rape.
Issue:
May the court modify the judgment upon motion of the
prosecution to increase the penalties?
Held:
No. Under Sec. 7 of Rule 120, a judgment of conviction,
before it became final or before appeal is perfected, could
be modified or set aside upon motion of the accused. This
aims to protect accused from being put anew to defend
himself from more serious offenses or penalties which the
prosecution or the court may have overlooked in the
original trial. It does not however bar him from seeking or

50

receiving more favorable modifications. The trial court
cannot increase the penalties without the consent of the
accused.

Q:
When does the judgement in a criminal case
become final?

2. Motion of offended party
Potot v. People

383 SCRA 449

motion to set aside before the judgment of conviction
becomes final.

June 26, 2002

Facts:
Accused pleaded guilty to homicide and proved the
mitigating circumstances of voluntary surrender and plea
of guilty. After conviction he manifested that he was not
appealing and would immediately serve his sentence.
Private complainant moved to set aside the decision due
to irregularities in the preliminary
investigation
contending that accused should have been charged with
murder. Accused opposed on the ground of double
jeopardy.

A:

It DEPENDS:
a.

If it is a judgement of ACQUITTAL – immediately
executory after promulgation of judgment
because it cannot be changed anymore.

b.

If it is a judgment for CONVICTION:
1.

After the lapse of the period for
perfecting an appeal (2nd part of
Section 7). So 15 days generally.
EXCEPT when the DEATH penalty is
imposed. That is now inserted in the
new Rules because even if the accused
will not appeal, there is an automatic
review. So the rule that when the period
to appeal has expired, the judgment will
become final, will NOT apply in death
penalty cases. However, the lapse of
the period to appeal and no appeal is
perfected, is not the only instance
where the judgment of conviction
becomes final;

2.

Even within the period to appeal, that is
when the sentence has been partially or
totally satisfied or served. For example
Charles has been sentenced to 10 days
of Arresto Menor and he has already
served it. Or Charles has been
sentenced to pay a fine of P100 and he
pays it. Wala na! Final na iyan! Because
he has decided to serve his sentence, it
has become final. We do not have to
wait for 15 days;

3.

When the accused has waived in writing
his right to appeal;

4.

When after conviction, the accused
applies for probation (this is based on
the probation law). When Charles
applies for probation, he is waiving his
right to appeal and he is accepting the
judgement of conviction.

Issue:
May a judgment of conviction, upon motion of the
offended party, be set aside or modified?
Held:
No. Only the accused under Sec. 7 of Rule 120 of the
Rules of Court can move to set aside a judgment of
conviction before it becomes final. As accused has been
placed in jeopardy for the crime of homicide, he cannot
be prosecuted anew for the same offense, or any offense
which necessarily includes or is included in the first
offense charged. The records do not show any irregularity
in the preliminary investigation. The evidence that would
upgrade the offense to murder was not presented and
complainant did not appeal the resolution downgrading
the offense to homicide.

Q: May judgement of conviction be modified or set aside?
A: YES, for as long as:
a.

the judgement has not yet become final, or

b.

appeal has not been perfected

Take note that only a judgment of conviction can be
modified. A judgment of acquittal cannot be modified. It is
only upon motion of the accused.
Q: How about upon motion of the prosecution?
A: It would seem under the rules, that it is only the
accused who is given that privilege of moving to modify
the judgement and set it aside.

There is an identical provision here that we have already
taken up before – about the judgment of conviction which
may be set aside before it becomes final. Read Section 5,
Rule 116 on Arraignment and Plea:

Take note, however, that in these instances, when the
judgment of conviction becomes final, even before the
lapse of 15 days, what the law means is that what has
become final is the criminal aspect. The civil aspect of the
case does NOT become final after the lapse of 15 days.
And these instances do not apply when the penalty
imposed is death because of the automatic review of the
Supreme Court.

Withdrawal of improvident plea of guilty. – 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. (5)

I met this problem before where the judgment convicted
the accused and the trouble is that judgment forgot to
impose civil liability. Nalimutan talaga! And there was no
reservation or waiver so that the court should have
imposed the civil aspect. The trouble is, after the
promulgation, the accused started to serve his sentence
the following day.

So even if you plead guilty, and it is not a capital offense
and there is now a judgment sentencing you because of
your plea, you can still change your mind by changing
your plea from guilty to not guilty. But you have to file a

But within the period of 15 days, we filed a motion for
reconsideration to complete the judgment because under
Section 1 of this Rule, the imposition of the proper civil
liability must be included. And Section 2 also provides

51

that the civil liability should be enforced unless the
enforcement of civil liability in a separate civil action has
been reserved or waived.
The judge acknowledged and admitted that he
overlooked the civil liability. He said that he is ready to
modify the judgment to include the civil liability which he
forgot. But the judge said, the trouble is that he can no
longer do it because the accused has already started
serving his sentence after promulgation, and from that
moment, the judgment has become final. So he said,
“how can I amend my judgment kung final na?”
I told him, what became final was the criminal aspect, the
civil aspect cannot become final until after the lapse of 15
days. Sabi ng judge, “Are you sure? Can you sight a case
which says so? Because my researcher said na hindi
pwede.”
Yes, according to the SC in one case, “…as long as the
period for appeal has not yet expired, even if the
judgment has become final by service of sentence or
waiver of appeal, the trial court may still modify its
judgment as to its civil aspect.” So what is final is the
criminal aspect and NOT the civil aspect. Because if the
offended party cannot claim civil liability kasi inunahan ng
accused ng pag-serve ng sentence, there is something
unfair there no.

What shall not be affected by this Rule – Existing
provisions in law governing:
1. Suspension of sentence,
2. Probation, or
3. Parole
The suspension of sentence, probation or parole are
governed by substantive law such as the Indeterminate
Sentence Law and the Probation law. These laws have
never been modified or affected by the Rules of Court.

PROCEEDINGS AFTER JUDGMENT

Rule 121 NEW TRIAL OR RECONSIDERATION
SECTION 1. New trial or reconsideration.
Motion for New Trial or Reconsideration
1. When filed:
At any time BEFORE the judgment becomes final
2. From what judgment:

SEC. 8. Entry of judgment. – After a judgment has become
final, it shall be entered in accordance with Rule 36. (8)
Rule 36 is entitled, “Judgments, Final Orders and Entry
Thereof.” While Rule 36 falls under the subject of Civil
Procedure, some of its provisions may be applied in
criminal procedure.
"If no appeal or motion for new trial or reconsideration is
filed within the time provided in these rules, the judgment
or final order shall forthwith be entered by the clerk in the
book of entries of judgments. The date of finality of the
judgment or final order shall be deemed to be the date of
its entry. The record shall contain the dispositive part of
the judgment or final order and shall be signed by the
clerk, with a certificate that such judgment or final order
has become final and executory."

1. Finality of judgment of conviction

Only from a judgment of CONVICTION
3. How initiated – either by:
1. Motion of the accused
2. By the court motu propio with the consent of
the accused

1. Amendment of decision
People v. Astudillo

401 SCRA 723
2004

April 29,

Facts:
After accused was convicted of murder qualified by abuse
of superior strength, he filed a motion for reconsideration
contending that the prosecution failed to prove his guilt
beyond reasonable doubt.

Question:

The RTC denied the motion and issued an Amended
Decision where the phrase “abuse of superior strength”
was replaced with “TREACHERY” in the body of the
Decision.

When does a judgment of conviction become final?

Issue:

Answer:

Is the amendment of the decision proper?

A judgment of conviction becomes final

Held:

People v. Salle

250 SCRA 581

December 4, 1995

(a) when no appeal is seasonably perfected,
(b) when
sentence,

accused

commences

to

serve

(c) when the right to appeal is expressly waived
in writing, except where the death penalty was
imposed by the court, and
(d) when accused applies for probation, thereby
waiving his right to appeal.

SEC. 9. Existing provisions governing suspension of
sentence, probation and parole not affected by this Rule.

Yes. Under Rule 121, Sec. 1 of the Rules of Court, a
motion for reconsideration of a judgment of conviction
may be filed by the accused, or initiated by the court,
with the consent of the accused. Likewise, under Rule
120, Sec. 7, a judgment of conviction may be modified or
set aside only upon motion of the accused. His motion
gives the court an opportunity to rectify its errors or to
reevaluate its assessment of facts and conclusions of law
and make them conformable with the statute applicable
to the case in the new judgment it has to render. The
raison d’etre is to afford the court a chance to correct its
own mistakes and to avoid unnecessary appeals from
being taken. In effect, a motion for reconsideration filed
by accused renders the entire evidence open for the
review of the trial court without, however, conducting

52

further proceedings, such as the taking of additional
proof.

2. Reconsideration where judgment is acquittal
Mobilia Products v. Umezawa 453 SCRA 511
March 4, 2005
Issue:
If an accused is acquitted or the case against him is
dismissed, who may file a motion for reconsideration?
Held:
If a criminal case is dismissed by the trial court or if there
is an acquittal, a reconsideration of the order of dismissal
or acquittal may be undertaken, whenever legally
feasible, insofar as the criminal aspect thereof is
concerned and may be made only by the public
prosecutor; or in the case of an appeal, by" the State
only, through the OSG. The offended party may not
undertake such motion for reconsideration or appeal on
the criminal aspect of the case. However, the offended
party may file a motion for reconsideration of such
dismissal or acquittal or appeal therefrom but only insofar
as the civil aspect thereof is concerned. In so doing, the
offended party need not secure the conformity of the
public prosecutor. If the court denies his motion for
reconsideration, the offended party may appeal or file a
petition for certiorari or mandamus, if grave abuse
amounting to excess or lack of jurisdiction is shown and
the aggrieved party has no right of appeal or given an
adequate remedy in the ordinary course of law.

NEW TRIAL
Q: What is the effect of the filing of a motion for new trial
on the double jeopardy rule?
A: An accused who files a motion for new trial WAIVES the
protection of double jeopardy, so that if the motion is
granted, he can be tried and convicted of the graver
offense charged in the complaint or information. (Trono
vs. U.S. 11 Phil. 726; Santos vs. People, 64 Phil. 10)
Actually, it is like an appeal – when an accused appeals
the judgment against him, he is waiving his right against
double jeopardy. And it has happened several times in the
past where the accused was charged with murder and
convicted of homicide. He was not contented. When he
filed an appeal, he was convicted of murder. Sometimes,
appeal can give you a worse situation.

Q: Compare and Distinguish New Trial from Modification
of Judgment.
A: Similarity: Both may be resorted to before the
judgment of conviction becomes final.
Distinctions:
1.

In new trial, by the very nature of its purpose
and what is to be done, both parties intervene;
whereas, in modification of judgment, the court
moto propio may act provided the consent of the
accused is required;

2.

In new trial, if the motion is granted, the original
judgment is vacated and a new judgement shall
be rendered; whereas, in modification of
judgment, the integrity of the decision already
rendered is unaffected, except for the proposed

changes, although the entire decision may have
to be rewritten. (People vs. Tamayo, 86 Phil. 209)

Now, there is a new section in the New Rules which
created confusion – Rule 119 Section 24.
SEC. 24. Reopening.– At any time before finality of
the judgment of conviction, the judge may, motu
proprio or upon motion, with hearing in either case,
reopen the proceedings to avoid a miscarriage of
justice. The proceedings shall be terminated within
thirty (30) days from the order granting it. (n)

When do you make the motion for reopening? At anytime
before the judgment of conviction becomes final? The
language of the 3 provisions are identical, motion for: (1)
reopening of trial; (2) modification of judgment of
conviction; and (3) new trial or reconsideration
How is this different from the others?
Former Solicitor General Galvez, said that Rule 119 is an
error because Why will you reopen after judgment of
conviction? Reopenning is done before judgment is
rendered not after a judgment of conviction. It created a
lot of confusion. So if we believe Galvez, the confusion is
caused by a typographical error, which according to him
is not the language of the Rules submitted to the SC and
somebody tinkered with that provision.
There is also a rule on New Trial in civil cases under Rule
37 (Civil Procedure),and the grounds: FAME, NDE, etc. And
there are some rules there to follow such as the motion
for new trial must be supported by affidavits of merits, or
the motion for reconsideration must point out specifically
the error committed by the trial court, and the portion of
the decision not supported by the evidence. Otherwise, if
you do not comply with these requisites, what is the
name of your motion? PRO FORMA. Pro Forma, meaning
the filing of your motion for new trial or reconsideration
will NOT interrupt the period to appeal. That is the effect.

This is now the question:
Q: Is there such a thing as pro forma motion for new trial
or reconsideration in criminal cases? Where your motion
is obviously dilatory? Your grounds are too general, too
vague, too ambiguous? No affidavit of merits? And
therefore if it is denied, there is no more right to appeal
by the accused applying the pro forma rule?
A: The SC ruled in the past that the pro forma rule in civil
cases DOES NOT apply to criminal cases. In criminal
cases, a general statement of the grounds for new trial is
sufficient. (People vs. Colmenares, 57 O.G. 3714) Even if
you do not go into details because you expect your
motion to be denied, but the filing will still interrupt the
period. It is too harsh if the remedy of appeal will be
removed from the accused simply because of a motion
for new trial which is not prepared properly. So the pro
forma rule will not apply in criminal cases. The filing of a
motion for new trial or reconsideration will always
interrupt the running of the period to appeal.

SEC. 2. Grounds for a new trial.
Grounds for New Trial
1. Errors of law have been committed during the trial,

53

2. Irregularities prejudicial to the substantial rights of
the accused have been committed during the trial, and
3. Newly discovered evidence; requisites:


The evidence must have been discovered
after the trial,



It could not have been discovered before
the trial even with the use of reasonable
diligence,



It is material, not merely cumulative,
corroborating or impeaching; and



It is of such weight, that if introduced and
admitted, would probably change the
judgment

1. Newly discovered evidence
a. DNA tests results
In Re: Writ of Habeas Corpus
442 SCRA 706

November 17, 2004

Note: Evidence to be considered newly discovered, must
be one that could not, by the exercise of due diligence,
have been discovered before the trial in the court below.
The determinative test is the presence of due or
reasonable diligence to locate the things to be used as
evidence in the trial (Briones vs. People, GR No. 156009,
June 5, 2009)

Newly discovered evidence is not a newly created
evidence nor forgotten evidence.
b. Paraffin test result
People v. Ducay

225 SCRA 1

August 2, 1993

Facts:
Accused was convicted of murder. While the case was
pending review before the Supreme Court, he asked for
new trial on the ground of newly discovered evidence
consisting of the results of a paraffin test done on him
one (1) day after the commission of the crime. The test
showed that he was negative for gunpowder residue.
Issue:

Facts:

Should accused be granted a new trial?

Three years after the Supreme Court affirmed the
conviction of petitioner for rape, he asked for new trial
based on newly discovered evidence gathered after
performing deoxyribonucleic acid (DNA) testing on
samples allegedly collected from him and a child born to
the victim. He alleged that during the trial of the case, he
was unaware that there was a scientific test that could
determine once and for all if he was the father of the
victim’s child. He was only informed during the pendency
of the automatic review of the case that DNA testing
could resolve the issue of paternity.

Held:

Issue:

No. The chemistry report cannot be considered as newly
discovered evidence since it was already existing even
before the trial commenced and could have been easily
produced in court by compulsory process. Accused either
did not exercise reasonable diligence for its production or
simply forgot about it. Forgotten evidence is, of course,
not a ground for a new trial. Moreover, the result of the
paraffin test conducted on accused is not conclusive
evidence that he did not fire a gun. It is possible for a
person to fire a gun and yet be negative for the presence
of nitrates, as when he wore gloves or washed his hands
afterwards.

Does the belated results of the DNA test constitute newly
discovered evidence?
Held:
No. Under Sec. 1 of Rule 121 of the Revised Rules of
Criminal Procedure a motion for new trial can only be filed
at any time before a judgment of conviction becomes
final, that is, within 15 days from its promulgation or
notice. The decision sought to be reviewed has long
attained finality. Moreover, the DNA evidence does not fall
within the statutory or jurisprudential definition of “newlydiscovered evidence”.
The requisites for a motion for new trial based on newlydiscovered evidence have not been met. It is essential
that the offering party exercised reasonable diligence in
seeking to locate the evidence before or during trial but
nonetheless failed to secure it.
In this instance, although the DNA evidence was
undoubtedly discovered after the trial, such evidence
disproving paternity could have been discovered and
produced at trial with the exercise of reasonable
diligence. His claim that he was “unaware” of the
existence of DNA testing until the trial was concluded
carries no weight. Lack of knowledge of the existence of
DNA testing speaks of negligence, either on the part of
petitioner, or his counsel. In either instance, however, this
negligence is binding upon petitioner.

c. Passport
People v. Li Ka Kim

429 SCRA 169

May 25, 2004

Facts:
Li Ka Kim was convicted of selling “shabu” under the
Dangerous Drug Acts. While his appeal was pending
before the Supreme Court, he filed a motion to remand
the case for new trial on the ground of newly discovered
evidence. The evidence consisted of his passport which
would establish his true identity as Huang Xiao Wei, a
Chinese National (not Li Ka Kim), and as having entered
the Philippines as a tourist, not an undocumented alien,
as found by the trial court.
Issue:
Should accused be granted new trial to enable him to
present his passport?
Held:
No. Not one of the requisites mentioned under Sec. 1 Rule
121 of the Rules of Court is attendant. The passport of
accused could have easily been presented and produced
during the trial. Then, too, the presentation of the
passport, would hardly be material to the outcome of the
case. Accused was positively identified by the prosecution
witnesses as being the perpetrator of the crime. Most
importantly, accused even identified himself as Li Ka Kim
at the trial and not as Huang Xiao Wei, that bolsters the

54

conclusion that accused deliberately concealed his true
identity in the nefarious enterprise.

Issue:

d. Discovery of witness’ address
People v. Dela Cruz

confessing to the commission of the crime for which
accused was held liable. The convict later executed an
affidavit formalizing his confession.

207 SCRA 632
1992

March 31,

Does this constitute newly discovered evidence to entitle
accused to a new trial?
Held:

Facts:
Accused appealed his conviction for murder. The next
day, he filed a petition for new trial on the ground that he
found an eye-witness to the crime, whose “address is
newly discovered.” He claims that said witness will
corroborate the testimony of his main witness. A few days
later, he also filed a motion to withdraw appeal.
Issue:
Should new trial be granted?
Held:
No. Since the testimony of the witness sought to be
presented is only corroborative, the third requisite for
new trial is absent.

Yes. There is a need for a new trial in order to determine
the veracity of positive identification of accused vis-a-vis
the alleged confession made by the convict since no less
than a life is at stake. Court litigation is primarily for the
search of truth, and a liberal interpretation of the rules by
which both parties are given the fullest opportunity to
adduce proofs is the best way to ferret out such truth. We
cannot convict accused and impose upon him the death
penalty when evidence which would possibly exonerate
him may be presented by him in a new trial. Neither can
we acquit him on the sole ground that another person
confessed to having committed the crime.

g. Affidavit of recantation
People v. Garcia

e. Discovery of new witness
People v. Amparado

288 SCRA 382

March 31, 1998

Issue:

156 SCRA 713
1987

December 21,

May an affidavit of recantation serve as a ground for
granting a new trial?

Facts:

Held:

After accused was convicted of murder, he learned that
there were 2 people who were present when the incident
happened and these 2 were the ones who rendered
assistance to the victim. Accused himself did not know
this during the trial because he stayed in another
barangay to avoid retaliation from the relatives of the
victim. The testimonies of the 2 would tend to show that
accused acted in self-defense and that the main
prosecution witness whose testimony resulted to his
conviction was nowhere at the crime scene.

A recantation, as a general rule, is not sufficient to
warrant a new trial. If it were otherwise, a new trial would
be granted whenever an interested party succeeds in
intimidating or inducing any or some of the witnesses to
retract after trial their testimony, thus, opening the door
to endless litigation. It is also injudicious to reject a
testimony solely on the basis of such recantation, which
may later be repudiated, as this “will make solemn trial a
mockery and place the investigation at the mercy of
unscrupulous witnesses.”

Issue:
Should accused be given a new trial based on newly
discovered evidence?
Held:
Yes. The evidence sought to be presented is newlydiscovered as defined by the Rules of Court. The
proposed testimonies of the witnesses, who aver to be
the first persons to render assistance to the victim
immediately after the stabbing incident, if admitted,
would tend to show that the alleged eyewitness of the
prosecution, whose version of the crime was given full
faith and credence by the trial court, was not present at
the scene of the crime. If this is true, then, the version of
the prosecution might perforce fail and that of the
defense prevail. Consequently, the judgment of
conviction could be reversed, or at the very least,
modified.

342 SCRA 675

People v. Del Mundo 262 SCRA 266
20, 1996

September

Facts:
Accused was convicted of 6 counts of incestuous rape of
his own daughter. He was sentenced to death in one of
them. While the case was pending review by the Supreme
Court, he asked for new trial on the ground of the
affidavit of desistance executed by the victim and a
medical certificate showing that the victim was a virgin.
The medical certificate was at variance with what was
presented by the prosecution, which was based on the
examination conducted by another physician.
Issue:
Should accused be granted new trial?
Held:

f. Confession of another convict
People v. Ebias

h. Medical certificate

October 12, 2000

Facts:
While the conviction of accused for murder and frustrated
murder was being reviewed by the Supreme Court, a
death convict at the National Bilibid Prison wrote a letter

Yes. While the NBI-Medico Legal report cannot be
considered new and material evidence which accused
could not with reasonable diligence have discovered and
produced at the trial, we grant the motion for new trial on
the broader ground of substantial justice, taking into
account the variance in the two aforesaid reports. It is the
sense of this Court that such serious discrepancy raised

55

substantial doubt as to the guilt of the accused.
Furthermore, the penalty imposed on accused is death.
Here is a situation where a rigid application of the rules
must bow to the overriding goal of courts of justice to
render justice to secure to every individual all possible
legal means to prove his innocence of a crime of which he
is charged.

1.

Example: In one case, during the trial, the trial
court excluded a defense witness from testifying
based on an erroneous interpretation of the rules
of evidence. The judge disqualified him. But it
turned out that the witness was not disqualified.
That is an error of law. For all you know, if his
testimony will be given, the accused will be
acquitted. Therefore, a new trial should be
granted where he should be allowed to testify.
(People vs. Estefa, 86 Phil. 104)

2. Error of counsel
People v. Remudo

364 SCRA 61

August 30, 2001
2.

Issue:
Is the error of counsel a ground for a motion for new trial?

3. “Interest of justice”
People v. Almendras

401 SCRA 555
2003

April 24,

Facts:
Accused were charged with illegal sale of “shabu.” After
the prosecution presented evidence, they filed a
demurrer which was denied. Thereafter, through counsel,
they filed a certiorari before the CA to challenge the order
of the court. Due to the repeated absence of counsel in
the proceedings before the trial court, the judge ruled
that they waived their right to present evidence. After
they were sentenced to death, they asked to be allowed
to present evidence.
Issue:
May accused be granted a new trial?
Held:
Yes. Although Sec. 2, Rule 121 of the Rules of Court
enumerates the specific grounds in granting new trial or
reconsideration, none of which is present here,
nonetheless Sec. 6 on the effects thereof considers the
“interest of justice” as a gauge in the introduction of
additional evidence. In the case at bar, the paramount
interest of justice militates against closing the door of the
courtroom against accused. For unless granted a day in
court now, an accused may be doomed without
competent counsel presenting a proper defense at his
disposal. We are not predisposed to such an eventuality
that could taint seriously our adversarial system.

Grounds for new trial:

irregularities prejudicial to the substantial
rights of the accused;
Example: In one case, the trial court compelled
the accused, over his objection, to submit to trial
without the assistance of his counsel. (People vs.
Enriquez, L-4934, November 28, 1951) If the
accused
is
convicted
because of such
irregularity, this is a valid ground for new trial.
Besides, why should the judge punish the
accused? He should punish the lawyer.

Held:
No. The error of the defense counsel in the conduct of the
trial is neither an error of law nor an irregularity upon
which a motion for new trial may be presented. Generally,
the client is bound by the action of his counsel in the
conduct of his case and cannot be heard to complain that
the result of the litigation might have been different had
his counsel proceeded differently. The fact that blunders
and mistakes may have been made in the conduct of the
proceedings in the trial court as a result of the ignorance,
inexperience or incompetence of counsel does not furnish
a ground for a new trial. If such grounds were to be
admitted as reasons for reopening cases, there would
never be an end to suits so long as a new counsel could
be employed who could allege and show that the prior
counsel has not been sufficiently diligent, experienced, or
learned.

Errors of law;

3.

Newly discovered evidence; this is similar
to civil cases, newly discovered evidence.
The requisites are the same:
a.

discovered after trial;

b.

it could not have been discovered
before trial even with the use of
reasonable diligence

c.

and if introduced and admitted would
probably change the decision

Q: May a new trial be granted on the ground of loss of
stenographic notes?
A: NO. The loss of stenographic notes after trial is NOT
such an irregularity as would justify a new trial. The
remedy of the accused is to have the missing evidence
reconstituted. (People vs. Castelo, L-10774, February 16,
1961)
There is a case, the trial is concluded, and the accused is
convicted. Within the period of 15 days from
promulgation, here comes the accused filing a motion for
new trial on the ground that the prosecution witness has
executed an affidavit recanting his testimony. The
prosecution witness, in effect, is saying that what he said
during the trial is not true.
Q: May a new trial be granted on the ground of loss or
recantation of prosecution witnesses?
A: As a GENERAL RULE, recantation is NOT a ground for
new trial, otherwise there would never be an end to
criminal litigation. “The Court has looked with disfavor
upon retraction of testimonies previously given in court.
Thus, the Court has ruled against the grant of a new trial
on the basis of a retraction by a witness. The rationale for
the rule is obvious: Affidavits of retraction can easily be
secured from poor and ignorant witnesses usually for a
monetary
consideration.
Recanted
testimony
is
exceedingly unreliable. There is always the probability
that it may later be repudiated. So courts are wary or
reluctant to allow a new trial based on retracted
testimony.” (People vs. Clamor, July 1, 1991; People vs.
Soria, October 4, 1996)
Q: Is there an EXCEPTION?

56

A: YES, when it is made to appear that there is no
evidence sustaining the judgment of conviction other
than the testimony of the recanting witness. (U.S. vs.
Dacir, 26 Phil. 503) When aside from the testimonies of
the retracting witness or witnesses there is no other
evidence to support a judgment of conviction, a new trial
may be granted. (People vs. Clamor, July 1, 1991)

GOMEZ vs. IAC

April 9, 1985

HELD:
“It is conceded that the State has the sovereign right to
prosecute criminal offenses under the full control of the
fiscal and that the dismissal of criminal cases by the
execution of an affidavit of desistance by the complainant
is not looked upon with favor. However, it is also true that
an affidavit of desistance may create serious doubts as to
the liability of the accused. At the very least, it calls for a
second hard look at the records of the case and the basis
for the judgment of conviction. Jurisprudence on the
effect of desistance notwithstanding, the affidavit should
not be peremptorily dismissed as a useless scrap of
paper.”
Sometimes there are affidavits of recantation made by
the complainant, which says “I have lost interest in
continuing the case.” However he already testified. This is
not a proper ground for a motion for new trial.
To be such ground you have to say that you were
mistaken in your allegations in the affidavit regarding the
commission of the crime by the accused.

If you say that you are not interested, you are not really
repudiating what you said. That is what the SC
emphasized in the 1998 case of
PEOPLE vs. GARCIA

288 SCRA 382 [1998]

HELD:
“To warrant a new trial, the affidavit of desistance must
constitute a recantation and not a mere withdrawal from
the prosecution of the case. The complainant's affidavit of
desistance did not constitute a recantation, because she
did not deny the truth of her complaint but merely sought
to be allowed to withdraw and discontinue the case
because she wished to start life anew and live normally
again. She never absolved or exculpated the accused. In
other words, a recantation of a prior statement or
testimony must necessarily renounce the said statement
or testimony and withdraw it formally and publicly.”
Now we will go to one last point.
PROBLEM: Let us assume that Sheriff was convicted
purely because of the testimony of the complainant,
Thaddeus. Now, Thaddeus makes an affidavit stating that
everything he said is not true. Meaning he is really
recanting.
Q:

Is this a ground for new trial?

A:
Following jurisprudence, YES. It becomes now an
exceptional case. There will be a new trial.
Q:

What do you mean new trial?

A:

We will now restart the case.

Q:

Who will testify?

A:
Eh di si Thaddeus! – yung complainant, who will
be asked: “During the trial this is what you said, what are

you saying now?” As he answers, Thaddeus must say
under oath that he lied before and this is the truth…
[amen!]
Q:
After that, can the court say that the accused is
now acquitted because now Thaddeus is telling the truth
when before Thaddeus was not telling the truth? Is this
what will happen?
A:
The SC said NO. The only thing that will happen
is that a new trial will be granted. But this does not mean
that the accused shall be acquitted. When we say new
trial, this means that the court should hear the testimony
of the complainant again. BUT after testifying, the court
may say, “You say you were lying before and you are
telling the truth now, but the court does not believe you
because as far as the court is concerned, you were telling
the truth before and you are lying now.” Therefore the
conviction stands. That is possible.
Because some lawyers believe that if a new trial is
granted, sigurado na acquitted na ang accused. NO, the
SC never guaranteed that. It will only be a ground for new
trial without a guarantee whether the decision will be
reversed or not. But in practice, lutong Macau lahat iyan.
Usapan nalang iyan between the lawyer and the fiscal
tapos kasali pa ang judge. That is what is happening, I
know that.

But if you follow the rules, there is no guarantee that if
new trial is granted, the accused will be acquitted. There
is no rule that says that when a witness testifies twice,
the court will always believe the latest testimony. And the
SC has emphasized that in many cases, one of them is
the case of
PEOPLE vs. CLAMOR

July 01, 1991

HELD:
“Where a witness testifies for the prosecution and
retracts his or her testimony and subsequently testifies
for the defense, the test in determining which testimony
to believe is one of comparison coupled with the
application of the general rules in evidence.” So you
apply what you know about evidence, about credibility,
appreciation of evidence.
“The rule should be that a testimony solemnly given in
court should not be lightly set aside and that before this
can be done, both the previous testimony and the
subsequent
one
be
carefully
compared,
the
circumstances under which each given carefully
scrutinized, the reasons or motives for the change
carefully scrutinized — in other words, all the expedients
devised by man to determine the credibility of witnesses
should be utilized to determine which of the contradictory
testimonies represents the truth.”
Of course, if the court believes that the second testimony
is accurate and the witness lied during the first, then
acquit! But if the court believes that the witness was
telling the truth in the first testimony, the conviction
stands.
So take note of that because these are misunderstood
concepts eh.

RECONSIDERATION
SEC. 3. Ground for reconsideration.
Grounds for Reconsideration

57

1. Errors of LAW in the judgment, which requires no
further proceedings; and
2. Errors of Fact in the judgment, which requires no
further proceedings

Q: Of course, what are the effects of granting the motion
for new trial or reconsideration.

1. Reconsideration in lieu of habeas corpus
Villa v. CA

319 SCRA 794

A: YES – when the case is tried in the MTC under the
Summary Rules. Bawal man iyan ba! That’s a prohibited
motion. Now you just take note of that. Under Section
19[c] of the Revised Summary Rules, a motion for
reconsideration or new trial of a final judgment is
prohibited.

December 6, 1999

A: You have Section 6:

Facts:
On Aug. 19, 1994, the CA rendered a decision sentencing
accused to 6 years and 1 day to 10 years of
imprisonment. On Jan. 12, 1996, or after more than 1
year and 6 months, accused filed a Motion for
Reconsideration and Modification of Sentence. Seeking
retroactive application of the decision of People v. Simon
[G.R. No. 93028, July 29, 1994], she prayed that her
sentence be reduced to 6 months to 2 years and 4
months and that her sentence for the violation of Sec. 8,
Art. II of R.A. 6425 be declared fully served.
Issue:
Considering the finality of the judgment, may the court
entertain the motion for reconsideration?

SEC. 6. Effects of granting a new trial or reconsideration.
Effects of Granting a New Trial or Reconsideration
1. General Effect:
The original judgment shall be set aside or vacated
and a new judgment rendered accordingly
2. Effects if the motion for new trial is granted on
the ground of:
1. Errors of law or irregularities committed
during the trial:


all the proceedings and evidence
affected thereby shall be set aside
and taken anew, and



the court may, in the interest of
justice, allow the introduction of
additional evidence

Held:
Yes. While the appropriate remedy of accused is to file a
petition for habeas corpus. The CA should have treated
the motion for reconsideration and modification of
sentence filed by accused as a petition for the issuance of
a writ of habeas corpus and modified the penalty
imposed on accused.

2. Newly-discovered evidence:

SEC. 4. Form of motion and notice to the prosecutor.
Form of a Motion for New Trial or Consideration



the evidence already adduced shall
stand, and



the newly-discovered and such
other evidence as the court may, in
the interest of justice, allow to be
introduced shall be taken and
considered together with the
evidence already in the record

1. It shall be in writing
2. It shall state the grounds on which it is based
If the motion for new trial is based on newly
discovered evidence, it must be supported by:


affidavits of witnesses by whom such
evidence is expected to be given, or



duly authenticated copies of documents
which are proposed to be introduced in
evidence.

3. Notice of the motion must be given to the
prosecutor

SEC. 5. Hearing on motion.
Hearing on Motion
1. When the court may hear evidence on the
motion:
When the motion for new trial calls for resolution of
any question of fact
2. How the court may hear evidence on the motion:
By affidavits or otherwise

Q: Is there an instance
when a MOTION
reconsideration or new trial is PROHIBITED?

for

1. Consequence of granting new trial
Obugan v. People

244 SCRA 263
1995

May 22,

Question:
What is the effect if the motion for new trial is granted by
the court?
Answer:
Once a new trial is granted the original judgment is
vacated. The nullification of the original judgment is not
dependent on whether or not the new trial results in a
new or modified judgment. The mere grant of the motion
for new trial operates to vacate the original judgment.
The effect of granting a new trial is not to acquit the
accused of the crime of which the judgment finds him
guilty, but, precisely, to set aside the judgment so that
the case may be tried de novo as if no trial had been had
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. While
evidence already taken in the original trial is not
disregarded but is to be taken into account together with
the new evidence, original judgment is automatically set

58

aside and the case is reverted to its original status before
judgment, upon the granting of a motion for new trial.

from any order of the court making him subsidiarily
liable for the civil liability of the accused under Art.
103 of the Revised Penal Code

Q: Will there be really a trial de novo or will there just be
a reopening of the trial to introduce the newly discovered
evidence?

1. Party who can appeal

A: Under paragraph [c] which we already discussed: “In
all cases, when the court grants new trial or
reconsideration, the original judgment shall be set aside
or vacated and a new judgment rendered accordingly.”

Question:

Q: Suppose after new trial, the court still finds the
accused guilty?

Answer:

A: There will be another judgment but definitely the
original judgment is already set aside. When the court
grants the motion, wala na iyon! Regardless of whether
the new judgment will be the same or not.

Rule 122 APPEAL

SECTION 1. Who may appeal.
Q: What is appeal?
A: Appeal means a review of a decision of a lower court
by a higher court. The higher court will determine
whether the decision of the lower court is correct, just,
etc.
Who May Appeal
1. General Rule:
Any party may appeal from a judgment or final order
2. Exception:
Appeal cannot be made if the accused will be placed
in double jeopardy
3. What may be the subject of appeal:
1. A judgment, or
2. Final order

Philippine Rabbit v. People 427 SCRA 456
14, 2004

April

Who may appeal in criminal cases?

Sec. 1 of Rule 122 of the Rules of Court states that any
party may appeal from a judgment or final order, unless
the accused will be placed in double jeopardy.
Clearly, both accused and the prosecution may appeal a
criminal case, but the government may do so only if the
accused would not thereby be placed in double jeopardy.
Furthermore, the prosecution cannot appeal on the
ground that the accused should have been given a more
severe penalty. On the other hand, the offended parties
may also appeal the judgment with respect to their right
to civil liability. If the accused has the right to appeal the
judgment of conviction, the offended parties should have
the same right to appeal as much of the judgment as is
prejudicial to them.

2. Appeal by offended party of civil aspect
Heirs of Rillorta v. Firme 157 SCRA 518
29, 1988

January

Facts:
Although charged for the death of the victim, accused
was eventually convicted only of less serious physical
injuries, sentenced to 20 days and ordered to indemnify
the heirs of the victim the amount of P500. The heirs
appealed the civil aspect urging that the civil award in the
sum of only P500 be increased because accused should
not have been found guilty of only less serious physical
injuries but of homicide.
Issue:
May the criminal aspect of the decision be modified as a
basis for the increase in the civil award?

Specific Persons who may File an Appeal

Held:

1. The accused:

No. The civil indemnity may be increased only if it will not
require an aggravation of the decision in the criminal
case on which it is based. In other words, 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. The award
cannot be related to the victim’s death, of which accused
has been absolved by the trial court. Here, the heirs of
the victim are not confining themselves to the civil aspect
of the challenged decision. In their own words, their
appeal involves both the criminal aspect and the civil
liabilities in the criminal cases. This is not permitted
under the rule on double jeopardy.



from a judgment of conviction (Phil. Rabbit v.
People, 427 SCRA 456)



with respect to the civil aspect (Salvan v. People,
410 SCRA 638)

2. The prosecution:
provided the accused will not be placed in
double jeopardy
3. The offended party:
with respect to the civil aspect arising out of the
offense charged
4. The bondsman of the accused:
in case of judgment against the bond in a forfeiture
case

3. Appeal of civil aspect by accused
Salvan v. People

410 SCRA 638

October 29, 2002

Issue:

5. The employer of the accused:

59

May an accused who applies for probation file a partial
appeal insofar as the civil aspect of the judgment
ordering him to pay damages?
Held:
Yes. The filing of the application for probation should be
deemed a waiver of the right to appeal. However, even if
the execution of sentence is suspended by the grant of
probation, it does not follow that the civil liability of the
offender, if any, is extinguished.

4. Appeal of civil aspect by employer
Philippine Rabbit v. People 427 SCRA 456
14, 2004

April

Facts:
A driver of Philippine Rabbit Bus Lines [PRBL] was
convicted of reckless imprudence resulting to triple
homicide, multiple physical injuries and damage to
property. PRBL was held civilly liable as accused was
insolvent. PRBL filed a notice of appeal through the
counsel of accused who was hired and paid by PRBL.
Later, accused jumped bail and remained at large. The CA
dismissed the appeal as Sec. 8, Rule 124 of the Rules on
Criminal Procedure authorizes the dismissal of appeal
when accused jumps bail.
Issue:
Where the accused jumps bail, can his employer appeal
the civil aspect of the judgment?
Held:
No. PRBL’s appeal obviously aims to have accused
absolved of his criminal responsibility and the judgment
reviewed as a whole. But an appeal from the sentence of
the trial court implies a waiver of the constitutional
safeguard against double jeopardy and throws the whole
case open for review. It thus follows that a penalty higher
than that which has already been imposed by the trial
court may be meted out to him. The employer’s appeal
would thus violate his right against double jeopardy, since
the judgment against him could become subject to
modification without his consent.

Only the State thru the OSG
proceedings before the CA and SC

can

institute

In the case of the People of the Philippines, only the state,
through its appellate counsel, the OSG, has the sole right
and authority to institute proceedings before the CA and
the SC (Carino vs. De Castro GR No. 176084, April 30,
2008; Sarah Marie Palma Burgos vs. CA GR No. 169711,
February 8, 2010). The authority to represent the State in
appeals of criminal cases before the Court of Appeals and
the Supreme Court is solely vested in the Solicitor
General (People vs. Duca, GR No. 171175, Oct. 9, 2009).
Where the appellate court failed to notify the Solicitor
General of its resolution on a petition filed by the accused
and to require it to file its comment, this failure has
deprived the prosecution of a fair opportunity to
prosecute and prove its case (Pp vs. Duca).
Hence, the conformity of the Assistant City Prosecutor to
a petition for review before the CA is insufficient as the
rule and jurisprudence mandate that the same should be
filed by the Solicitor General who is solely vested with the
authority to represent the people in the Court of Appeals
or in the Supreme Court. Also, while a private prosecutor

may be allowed to intervene in criminal proceedings on
appeal in the Court of Appeals or the Supreme Court, his
participation is subordinate to the interest of the People,
hence, he cannot be permitted to adopt a position
contrary to that of the Solicitor General (Carino vs. De
Castro)

Effect of appeal
It is settled that in a criminal case, an appeal throws the
whole case open for review, and it becomes the duty of
the appellate court to correct such errors as may be
found in the judgment appealed from, whether they are
made the subject of the assignment of errors or not
(People vs. Michael Lindo y Vergara GR No. 189818, Aug.
9, 2010)
The above rule is in contrast with the general rule in civil
cases where as a rule, no error will be considered by the
appellate court unless stated in the assignment of errors
except when (a) the error affects the jurisdiction of the
court over the subject matter; (b) the error affects the
validity of the judgment appealed from or the
proceedings therein; (c) the error is closely related or
dependent on an assigned error and properly argued in
the brief; and (d) the error is a plain error or a clerical
error (Sec. 8 R 51 Rules of Court; Heirs of Marcelino
Doronio vs. Heirs of Fortunato Doronio 541 SCRA 479); (d)
the appellate court finds that the consideration of erros
not assigned on appeal is necessary in arriving at a
complete and just resolution of the case or to serve the
interests of justice or to avoid piecemeal justice (Sps.
Romulo vs. Layug, GR No. 151217, Sept. 8, 2006).

Change of theory on appeal
The rule is that a party cannot change his theory on
appeal nor raise in the appellate court any question of
law or of fact that was not raised in the court below or
which was not within the issue raised by the parties in
their pleadings.
In a long line of cases, the SC held that points of law,
theories, issues and arguments not adequately brought to
the attention of the trial court ordinarily will not be
considered by a reviewing court as they cannot be raised
for the first time on appeal because this would be
offensive to the basic rules of fair play, justice and due
process (People vs. Mamaril GR No. 171980 Oct. 6, 2010)

Q: May an accused appeal from a judgement of acquittal?
A: Normally, NO, because a judgement of acquittal
becomes final immediately upon promulgation, so why
will you appeal? And why are you appealing if you are
acquitted? You mean to tell me, you are praying to be
convicted? However in the old case of
PEOPLE vs. MENDOZA

74 Phil. 119

FACTS:
The accused was acquitted but the decision contained
some harsh remarks against the accused which the
accused feels are irrelevant. So he decided to appeal
from the judgement of acquittal, not for the purpose of
reversing it, but for the purpose of removing all those
harsh irrelevant remarks against him in the decision.
HELD:

60

The accused may appeal from a judgement of acquittal if
it contains statements that are irrelevant and should be
expunged from the record, for the purpose of striking out
those statements.

Q: Can the People of the Philippines or the prosecution
appeal in a criminal case?
A: It depends. If you read Section 1, it would seem so, for
as long as the accused will not be placed in double
jeopardy. BUT if the appeal of the prosecution will place
the accused in double jeopardy, then he cannot appeal.
Q: Suppose the accused filed a Motion to Quash the
information on this or that ground and the court quashed
the information but the quashing is wrong. Can the
prosecution appeal from the judgement of the court
quashing the information?
A: YES, because the elements of double jeopardy would
not be present. First, the dismissal is with his express
consent. And normally, a dismissal on a technicality is not
considered as an acquittal. It is just a dismissal where
there is no trial. So puwede.
However, according to the Supreme Court, if the Motion
to Quash is based on the grounds of extinction of criminal
liability, or double jeopardy, then the prosecution cannot
appeal because that would place the accused under
double jeopardy. (Bandoy vs. CFI, 13 Phil. 157)
Q: How about an appeal by the prosecution because the
penalty is wrong? The accused is convicted but the
penalty is very low. The penalty should be higher. So the
prosecution is appealing for the purpose of correcting the
penalty. It should be higher. Can the prosecution do
that?
A: NO, because that will place the accused in double
jeopardy. (People vs. Cabarles, 54 O.G. 7051; People vs.
Pomeroy, 97 Phil. 927; People vs. Flores, April 28, 1958)
In other words, the error will remain as it is.
HOWEVER, based on jurisprudence, even if the accused is
acquitted, but the judgement of acquittal is NULL and
VOID, then the prosecution is allowed to appeal because
a void judgement does not give rise to double jeopardy.
(People vs. Balisacan, August 31, 1966)
Q: Now give an example of a case where the prosecution
was allowed to appeal from a judgement of acquittal,
because the SC said the acquittal is null and void.
A: A good example is what happened in the old case of
People vs. Balisacan. This was already asked in the BAR.

PEOPLE vs. BALISACAN

August 31, 1966

ang prosecution, “Why will you acquit him when he
already pleaded guilty?”
ISSUE:
Can the prosecution appeal the judgment of acquittal in
the case at bar?
HELD:
YES, the prosecution can appeal because the judgement
of acquittal is NULL and VOID. In the first place, the
hearing is not for the purpose of proving his innocence.
The hearing is for the purpose only of proving mitigating
circumstance so why will you give him the benefit of
justifying circumstance? Now what should be the correct
procedure? You just say mitigating and tapos you are
proving self defense? Pag ganyan, the court will say:
“Okay, self defense ba? The plea of guilty is hereby
erased enter a plea of not guilty and we proceed to trial.”
And then the prosecution will present evidence.
The prosecution should not be deprived of its right to
present evidence as part of due process.

Q: Aside from the accused and the People of the
Philippines, unless there is double jeopardy, who can
appeal?
A: The offended party may appeal from any judgement,
order or ruling which is adverse to his civil rights or to the
civil liability, or on pure questions of law (e.g. whether or
not the information charges no offense). Provided, he has
not waived or reserved the right to file a separate civil
action and the civil action is deemed instituted, because
the civil aspect is different from the criminal aspect. So
the offended party can appeal from that portion of
judgement adverse to his civil liability.
Q: Who else can appeal?
A: The bondsmen can appeal in case of judgement
against the bond in a forfeiture case. In bail, what
happens when the accused failed to appear? The court
may order the confiscation or forfeiture of the bond. And
if the bondsman cannot satisfactorily explain why he
failed to present the accused, then judgement may be
rendered, holding the bondsman/bonding company liable.
Can he appeal?
Ah yes. He can appeal from the
judgement making him liable for his bond.
Q: Who else can appeal?
A: The employer of the accused can also appeal from any
order of the court making him subsidiarily liable for the
civil liability of the accused under Article 103 of the
Revised Penal Code.
So these are the people who can appeal in criminal cases.

FACTS:
The accused was charged with a certain crime which is
not a capital offense. Maybe the penalty is only reclusion
temporal or prision mayor.
And then during the
arraignment, the accused pleaded guilty. And sabi ng
accused: “Your Honor, may we be allowed to present
evidence to prove mitigating circumstance?” You are
guilty but you may still present evidence to prove
mitigating circumstances for purposes of reducing the
penalty. Do you know during the presentation of the
evidence for the accused to prove mitigating, he
attempted to prove self-defense? And the court, after
trial, said: self defense? After the hearing, self defense
pala. Okay, the accused is hereby acquitted. Nagreklamo

SEC. 2. Where to appeal.
Where to Appeal
1. To the RTC:

In cases decided by the MTC

2. To the CA or SC:
In the proper cases decided by
the RTC as provided by law
3. To the SC:

In cases decided by the CA

1. Decisions of the RTC
People v. Pajo

348 SCRA 492

December 18, 2000

61

Facts:
In a consolidated decision, accused was convicted by the
RTC of 3 counts of rape and 2 counts of acts of
lasciviousness. For the rape, the RTC imposed upon him 3
death sentences, and for the acts of lasciviousness it
meted imprisonment both ranging from 10 years and 1
day to 17 years and 4 months. The records of the cases
were elevated to the Supreme Court on automatic review.
Issue:
May the Court review the convictions for acts of
lasciviousness?
Held:
No. Under Sec. 2(b)], Rule 122 of the Rules on Criminal
Procedure, the appeal of a judgment rendered by the RTC
in its original jurisdiction sentencing the accused to other
than life imprisonment or death must be taken to the CA
by the filing of a notice of appeal with the court which
rendered the judgment or order appealed from, and by
serving a copy thereof on the adverse party. In the two
cases, accused did not appeal.

SEC. 3. How appeal taken.
How to Appeal
1. Notice of Appeal
1. When the appeal is made to the:


RTC, or



CA in cases decided by the RTC in the
exercise of its original jurisdiction;
(Sec.3[a], R 122, Rules of Court)

2. By:

serious offense for which the penalty is
death
5. Automatic Review by the SC
Where the penalty imposed by the CA is death, and
6. Where the penalty imposed by the RTC is
reclusion perpetual or life imprisonment, or where
a lesser penalty is imposed but for offenses
committed on the same occasion or which arose
out of the same occurrence that gave rise to the
more serious offense for which the penalty for
death, reclusion perpetual or life imrpisonment is
imposed, the appeal shall be by notice of appeal to
the CA in accordance with par. (a) of R 122 (Sec. 3[c],
R 122)

Summary on Where and How to Appeal
Original Jurisdiction
From
MTC
RTC

To
RTC
CA
Appellate Jurisdiction

From

To

RTC

CA

CA

SC

APPEAL
No notice of appeal is necessary in cases where the
Regional Trial Court imposed the death penalty. The Court
of Appeals shall automatically review the judgment as
provided in Section 10 of this Rule.



Filing the notice of appeal with the
court which rendered the judgment or
the final order appealed from, and

Except as provided in the last paragraph of section 13,
Rule 124, all other appeals to the Supreme Court shall be
by petition for review on certiorari under Rule 45.



Serving a copy thereof to the adverse
(Sec. 3[a] R 122, Rules of Court)

A. Cases where death penalty is imposed

2. Petition for Review under Rule 42
o

When the appeal is made to the CA:

o

In cases decided by the RTC in the
exercise of its appellate jurisdiction
(Sec. 3[b], R 122)

3. Petition for Review on Certiorari
All other appeals to the SC, except as provided in
Rule 124 Sec. 13 [last paragraph] (applies to appeals
from RTC in exercise of original jurisdiction to SC on
pure question of law and from CA to SC where the CA
imposes a penalty other than death, reclusion
perpetua or life imprisonment. In this case the
petition also raises only pure questions of law and
should raise the errors of the CA not of the RTC
(Batistis v. People GR No. 181571 Dec. 16, 2009)
4. Automatic Review by the CA


Where the penalty imposed by the RTC
is death, and



Where a lesser penalty is imposed but
for offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more

In cases where the penalty imposed is reclusion perpetua,
life imprisonment, or death, the Court now provides for a
review by the Court of Appeals before the case is
elevated to the Supreme Court. The Court explained in
People v. Mateo that a prior determination by the Court of
Appeals of the factual issues would minimize the
possibility of an error of judgment. If the Court of Appeals
should affirm the penalty of death, reclusion perpetua or
life imprisonment, it could then render judgment
imposing the corresponding penalty as the circumstances
so warrant, refrain from entering judgment and elevate
the entire records of the case to the Supreme Court for its
final disposition.

Note: Sec. 1 of RA 9346, approved on June 24, 2006, now
prohibits the imposition of the death penalty.
In lieu of the death penalty, the law imposes the penalty
of reclusion perpetua, when the law violated makes use
of the nomenclature of the penalties of the Revised Penal
Code or life imprisonment, when the law violated does
not make use of the nomenclature of the penalties of the
Code (Sec. 2 RA 9346; People vs. Abon 545 SCRA 606,
Feb. 15, 2008)

1. Reclusion perpetua as maximum penalty

62

Macalat v. CA

283 SCRA 159

December 12, 1997

Facts:

3. Review of death penalty
People v. Mateo

433 SCRA 640

July 7, 2004

For the crime of violating Sec. 3 of P.D. 1866, the trial
court sentenced the accused to not less than 17 years 4
months and 1 day of reclusion temporal, as minimum,
and not more than 30 years of reclusion perpetua, as
maximum.

Question:

Issue:

Yes. While the Fundamental Law requires a mandatory
review by the SC of cases where the penalty imposed is
reclusion perpetua, life imprisonment, or death, nowhere,
however, has it proscribed an intermediate review. Where
life and liberty are at stake, all possible avenues to
determine his guilt or innocence must be accorded an
accused, and no care in the evaluation of the facts can
ever be overdone. A prior determination by the CA on,
particularly the factual issues, would minimize the
possibility of an error of judgment. If the CA should affirm
the penalty of death, reclusion perpetua or life
imprisonment, it could then render judgment imposing
the corresponding penalty as the circumstances so
warrant, refrain from entering judgment and elevate the
entire records of the case to the SC for its final judgment.

Where should the appeal be filed?
Held:
For purposes of determining appellate jurisdiction in
criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of
the penalty is reclusion perpetua, the appeal therefrom
should have been to the Supreme Court, and not the CA,
pursuant to Sec. 9(3) of the Judiciary Reorganization Act
of 1980 (B.P. 129), in relation to Sec. 17 of the Judiciary
Act of 1948, Sec. 5(2) of Art. VIII of the Constitution and
Sec. 3(c) of Rule 122 of the Rules of Court. The term “life
imprisonment” as used in Sec. 9 of B.P. 129, the Judiciary
Act of 1948, and Sec. 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Sec. 5(2) of Art. VIII
of the Constitution.(Note: this decision was rendered prior
to the above changes)

2. Crimes committed on the same occasion
Limpangog v. CA

319 SCRA 341
1999

November 26,

Facts:
Accused was convicted of murder and frustrated murder
which crimes arose out of one incident. For murder, the
sentence was reclusion perpetua and for the frustrated
murder, he was sentenced to from 10 years to 17 years.
Accused appealed to the CA which held that it has no
jurisdiction over the murder case considering the
imposable penalty. Thus it dismissed the appeal for
murder, but it acquitted the accused of frustrated murder.
Issue:
Did the CA have jurisdiction over the 2 cases?
Held:
No. The 2 crimes were committed on the same occasion
and arose from the same facts. In this light, the CA did
not have jurisdiction over the appeals. Under Art. VIII,
Sec. 5(2)(d) of the Constitution, the Supreme Court has
jurisdiction over appeals of final judgments in criminal
cases in which the penalty imposed is reclusion perpetua
or higher. Sec. 3 (c), Rule 122 of the Rules of Court also
provides that the appeal to the SC in cases where the
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 shall be
by filing a notice of appeal. The SC has exclusive
jurisdiction over such appeals. The splitting of appeals is
not conducive to the orderly administration of justice and
invites possible conflict of dispositions between the
reviewing courts.
[Note: Decision rendered prior to AM No. 005-5-03SC]

May the CA be empowered to review RTC decisions
imposing the death penalty?
Answer:

Under the Constitution, the power to amend rules of
procedure is constitutionally vested in the SC. Therefore,
Sec. 3 and Sec. 10 of Rule 122, Sec. 13 of Rule 124, Sec.
3 of Rule 125, of the Rules of Court and any other rule
insofar as they provide for direct appeals from the RTC to
the SC in cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, as well as the
resolution of the Supreme Court en banc, dated Sept. 19,
1995, in “Internal Rules of the Supreme Court” in cases
similarly involving the death penalty, are to be deemed
modified accordingly.

4. Review of penalty of life imprisonment
People v. Ochoa

453 SCRA 299

March 11, 2005

Question:
Where accused is sentenced by the RTC to a penalty of
life imprisonment, where should the appeal be filed?
Answer:
In Administrative Matter No. 00-5-03-SC, which
took effect on Oct. 15, 2004, the Court resolved to
revise Rule 122, Sec. 3(c) of the Revised Rules of Criminal
Procedure. Presently, the appeal in cases where the
penalty imposed by the RTC is reclusion perpetua or life
imprisonment or where a lesser penalty is imposed for
offenses committed on the same occasion or which arose
out of the same occurrence that gave rise to the more
serious offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall be by
notice of appeal to the CA.

5. Escape of death convict pending review
People v. Esparas

260 SCRA 539
1996

August 20,

Facts:
Accused escaped after being arraigned for violation of RA
6425. After trial in absentia, she was convicted and
sentenced to death/
Issue:

63

Considering that accused remained at large, should the
Supreme Court [now CA] automatically review the death
sentence?
Held:
Yes. There is more wisdom in existing jurisprudence
mandating review of all death penalty cases, regardless
of the wish of the convict and regardless of the will of the
Court. Nothing less than life is at stake and any court
decision authorizing the State to take life must be as
error-free as possible. This objective must be realized,
however elusive it may be, and efforts must not depend
on whether appellant has withdrawn his appeal or has
escaped. Indeed, an appellant may withdraw his appeal
not because he is guilty but because of his wrong
perception of the law; or because he may want to avail of
the more speedy remedy of pardon; or because of his
frustration and misapprehension that he will not get
justice from the authorities.
The court should not be influenced by the
seeming repudiation of its jurisdiction when a convict
escapes. The Court has not only the power but also the
duty to review all death penalty cases. No litigant can
repudiate this power which is bestowed by the
Constitution. The power is more of a sacred duty which
has to be discharged to assure the People that the
innocence of a citizen is a concern not only in crimes that
slight but even more, in crimes that shock the
conscience. This concern cannot be diluted.

6. Appeal of interlocutory order
Basa v. People

451 SCRA 510

February 16, 2005

Facts:
The MTC quashed the information against the accused for
swindling under Art. 316[2] and falsification of public
document under Art. 171[4] of the Revised Penal Code.
When the RTC reversed the order, accused filed an appeal
with the CA.
Issue:
Is the procedure adopted correct?
Held:
No. The RTC decision is merely interlocutory. Sec. 3[b],
Rule 122 and Sec. 1 of Rule 42 of the Rules of Court
contemplate of an appeal from a final decision or order of
the RTC in the exercise of its appellate jurisdiction. Thus,
the remedy of appeal resorted to is improper. A final
order is one that which disposes of the whole subject
matter or terminates a particular proceeding, leaving
nothing to be done but to enforce by execution what has
been determined. On the other hand, an order is
interlocutory if it does not dispose of a case completely,
but leaves something more to be done upon its merits.
The denial by the RTC is essentially a denial of the motion
to quash because it leaves something more to be done in
the cases. Specifically, the MTC has yet to arraign the
accused, then proceed to trial, and finally render the
proper judgment.

May the CA dismiss an appeal on the ground that it raises
pure questions of law that should have been filed with the
SC in accordance with Rule 122, Sec. 3[e], of the Rules of
Court?
Held:
No. Neither the Constitution nor the Rules
exclusively vests in the SC the power to hear cases
on appeal in which only an error of law is involved.
Indeed, the CA, under Rule 42 and Rule 44, is
authorized to determine “errors of fact, of law, or
both.” These rules are expressly adopted to apply
to appeals in criminal cases, and they do not
thereby divest the SC of its ultimate jurisdiction
over such questions.

GARCIA vs. PEOPLE

318 SCRA 434 [1999]

FACTS:
The accused were sentenced to reclusion perpetua. Their
lawyer believed that there is automatic review of the case
so he did not do anything. The prosecution now moves to
enforce the judgment. The accused contended that there
can be no execution yet because of the automatic review.
ISSUE:
Must the SC automatically review a trial court’s decision
convicting an accused of a capital offense and sentencing
him to reclusion perpetua? In other words, is the accused
not required to interpose an appeal from a trial court’s
decision sentencing him to reclusion perpetua to SC
because the latter’s review of the sentence is automatic?
HELD:
The issue is not new. We have consistently ruled that it is
only in cases where the penalty actually imposed is death
that the trial court must forward the records of the case
to the SC for automatic review of the conviction.
As the petitioners did not file a notice of appeal or
otherwise indicate their desire to appeal from the
decision convicting them of murder and sentencing each
of them to reclusion perpetua, the decision became final
and unappealable.
The above ruling that the review is with the SC is no
longer applicable because of an amendment as will be
discussed later. The appeal is to the CA and the
procedure is:

Sec. 13 Rule 124“Whenever the Court of Appeals finds
that the penalty of death, reclusion perpetua, or life
imprisonment should be imposed in a case, the court,
after discussion of the evidence and the law involved,
shall render judgment imposing the penalty of death,
reclusion perpetua, or life imprisonment as the
circumstances warrant. However, it shall refrain from
entering the judgment and forthwith certify the case and
elevate the entire record thereof to the Supreme Court for
review.

Q: Now, how about CA to SC?
7. Appeal of pure question of law
Tan v. People
Issue:

381 SCRA 74

April 12, 2002

A: That is appeal by certiorari or also called petition for
review on certiorari under rule 45. That is paragraph [e] –
Except as provided in the last paragraph, Section 13, Rule
124, all other appeals to the Supreme Court shall be by
petition for review on certiorari under Rule 45.

64

“All other appeals,” Ano yang “all other appeals?”
other appeals, not mentioned in a, b, c, d. These are:

All

1.

CA to SC;

2.

RTC direct to the Supreme Court on questions
of law only, because normally pag RTC, dapat
CA yan eh. But pure questions of law, diretso
na iyan. Or, from Sandiganbayan to the
Supreme Court;

3.

In case the Sandiganbayan convicts an
accused, the appeal is direct to the Supreme
Court by petition for review on certiorari.

APPEAL FROM THE SANDIGANBAYAN
Q: If you are tried in the Sandiganbayan for, let’s say,
graft, you are a grade 27 employee of the government or
higher. If you are convicted, where will you appeal?

“Considering further that no less than three senior
members of this Court, Justices Teehankee, Makasiar, and
Fernandez dissented from the Court's opinion in Nuñez
vs. Sandiganbayan partly because of the absence of an
intermediate appeal from Sandiganbayan decisions,
where questions of fact could be fully threshed out, this
Court has been most consistent in carefully examining all
petitions seeking the review of the special court's
decisions to ascertain that the fundamental right to be
presumed innocent is not disregarded. This task has
added a heavy burden to the workload of this Court but it
is a task we steadfastly discharge.”

In other words, it has become cumbersome, no? Because
we have to be very careful. We have to be very
meticulous. Kaya it has become an added burden. We
have no choice because the accused is deprived of a
second chance. This is his last chance, so we have to be
very sure that he is really guilty.

A: You appeal to the Supreme Court by way of appeal by
certiorari under Rule 45.
Now, the constitutionality or validity of that procedure
was attacked in the case of :
NUÑEZ vs. SANDIGANBAYAN

111 SCRA 433

SEC. 4. Service of notice of appeal.
Service of Notice of Appeal
1. To whom notice of appeal should be served:

FACTS:

1. Upon the adverse party, or

The challenge in this case is that the Sandiganbayan law,
at least on that portion on appeal, is unconstitutional
because what is violated is equal protection of the law.
Because for example: An employee who is below Grade
27 is tried for Anti-Graft, where will case be filed? It
should be filed in RTC. In case he is convicted, where will
he appeal? He will appeal in the Sandiganbayan. And
then from Sandiganbayan to SC.

2. His counsel

Or, in case he is a civilian, or the case is not Anti-Graft,
that would be from the RTC to CA, and CA to SC. If you
notice in both examples, there are two levels of appeals,
eh. Now, if you are tried in the Sandiganbayan and you
are Grade 27 or higher and you are convicted, you appeal
will be to the SC – so, isang level lang. Bakit siya dalawa,
ako isa lang? So, the law is unconstitutional. It violates
the equal protection of the law. It is discriminatory – that
was the challenge.

2. Procedure in serving the notice:
1. General Rule:
By personal service
2. Exceptions:


By registered mail, or



By substituted service pursuant to Rule 13
Sec. 7 & 8

SEC. 5. Waiver of notice.
Failure to Give Notice to Appellee
1. The appellee may waive his right to a notice that
an appeal has been taken

HELD:
The majority still sustained the validity. But there were
three senior members of the Supreme Court at that time
who dissented.
They believe that the law is
unconstitutional - bakit all the rest dalawa ang appeal,
ako isa lang? Among those who dissented were Justice
Teehankee, Makasiar and Fernandez. These were very
influential in the Supreme Court and they were the ones
who voted to declare the law unconstitutional. But the
majority said it is valid.
Starting with that, the SC adopted the policy that if you
are convicted by the Sandiganbayan and you go to the
Supreme Court on appeal by certiorari, we will carefully
review the petition for review because precisely, you are
placed at a disadvantage. You have only one level, one
appeal lang eh. And therefore, it is our obligation to really
review everything to see to it that you were correctly
convicted. I think that is what happened to Imelda
Marcos, no? So the court said in the case of

2. The appellate court may, in its discretion,
entertain the appeal, if the interests of justice so
require

Q: Who is the appellant?
A: If you are convicted in the lower court and you
appealed, you are the appellant.

Q: Who is the appellee?
A: People of the Philippines.

SEC. 6. When appeal to be taken.
Period to Appeal
1. Period to file an appeal – Within 15 days from:

CESAR vs. SANDIGANBAYAN
HELD:

134 SCRA 105

1. Promulgation of the judgment, or
2. notice of the final order appealed from

65

2. Effects if the accused files a motion for new trial
or reconsideration:


the period for perfecting an appeal shall be
suspended from the time the motion is filed, and



only the balance of the period shall begin to run
again from the time the notice denying the
motion has been served upon the accused or his
counsel

Facts:
Counsel received the copy of the decision convicting
accused on Oct. 13, 1970. On Oct. 28, the last day for
perfecting an appeal, he filed a motion for new trial. On
Nov. 30, 1970 counsel received a copy of the order
denying the motion for new trial. On Dec. 1, he filed a pro
forma motion for reconsideration. On Dec. 16, he filed a
Notice of Appeal.
Issue:
Was the appeal filed on time?

1. Appeal in promulgation in absentia

Held:

Estrada v. People

No. Even if the period of 15 days to appeal were counted
from the date when counsel received a copy of the
decision (Oct. 13, 1970) the last day of the 15-day period
was Oct. 28, 1970. His notice of appeal filed on Dec. 16,
1970 was out of time. The filing of the Motion for New
Trial on Oct. 28, 1970, suspended the running of the
appeal period under Sec. 6, Rule 122. This left counsel
only one (1) day to perfect appeal in the event his Motion
for New Trial was denied. On Nov. 30, 1970, when counsel
received the order denying his Motion for New Trial, he
had only up to Dec. 1, 1970 within which to perfect his
appeal. Needless to state, the motion for reconsideration
filed on Dec. 1, 1970 being merely pro-forma, did not
suspend the running of the period of appeal.

468 SCRA 233

August 25, 2005

Issue:
Where judgment is promulgated in absentia, when does
the 15-day period to appeal begin to run?
Held:
The Rules allow promulgation of judgment in absentia to
obviate the situation where judicial process could be
subverted by the accused jumping bail. But the Rules also
provide measures to make promulgation in absentia a
formal and solemn act so that the absent accused,
wherever he may be, can be notified of the judgment
rendered against him.
The means of notification are: [1] the act of giving notice
to all persons or the act of recording or registering the
judgment in the criminal docket (which Sec. 6 incidentally
mentions first showing its importance); and [2] the act of
serving a copy thereof upon the accused (at his last
known address) or his counsel. In a scenario where the
whereabouts of the accused are unknown (as when he is
at large), the recording satisfies the requirement of
notifying the accused of the decision wherever he may
be. From the foregoing, accused is deemed notified of the
decision upon its recording in the criminal docket and he
only had 15 days therefrom within which to file an appeal.

Effect of motion for reconsideration
Heirs of Rillorta v. Firme 157 SCRA 518
29, 1988

January

Facts:
The judgment was promulgated on Jan. 23, 1980. The
prosecution filed a motion for reconsideration on Feb. 2,
1980. The private prosecutor received a copy of the order
denying the motion on Mar. 18, 1980. On Mar. 20, 1980,
he appealed the civil aspect of the judgment.
Issue:

2. Effect of motion for new trial

Was the appeal filed on time?

a. Where motion is granted
Obugan v. People

244 SCRA 263

Held:
May 22, 1995

Question:
When the motion for new trial is granted, but the court
affirms the original judgment of conviction, what is the
period to appeal?
Answer:
The period to appeal is 15 days counted from receipt of
the new judgment. Sec. 6, Rule 122 of the Rules of Court
states that the period for perfecting an appeal shall be
interrupted from the time a motion for new trial or
reconsideration is filed until notice of the order overruling
the motion shall have been served upon the accused or
his counsel. Thus the rule provides for the interruption of
the appeal period in the event the motion for new trial or
reconsideration is overruled. The implication is that if the
motion for new trial is granted and a new judgment is
rendered after the new trial was conducted, the period
within which to perfect an appeal is 15 days from receipt
of the new judgment.

b. Where motion is denied
Jamiliano v. Cuevas

152 SCRA 158

July 23, 1987

Yes. The notice of appeal was filed within the 15-day
reglementary period. The motion for reconsideration of
the decision rendered in open court on Jan. 23, 1980, was
filed on Feb. 2, 1980, date of its posting by registered
mail. Only 10 days had elapsed from the earlier date. The
running of the period was suspended while the motion
was under study and until a copy of the order denying the
same was furnished the private prosecutor on Mar. 18,
1980. When on March 20, the fiscal and the private
prosecutor jointly filed a notice of appeal, only 12 days of
the period of appeal had been consumed.

Neypes v. CA ruling and criminal cases
*Note that in Neypes vs. Court of Appeal, GR No. 141524,
Sept. 14, 2005, the Court granted a "fresh period" of 15
days from notice of the denial to appeal. Some argue that
this does not apply in criminal cases because it made no
reference to Sec. 6 of R 122. However, there are others
who say that it applies to criminal cases because the
Neypes rule wabe expressly declared to be applicable to
appeals under Rules 40, 41, 42, 43 and 45. Rule 122, Sec.
3 however, of the Rules on Criminal Procedure also allows
appeals in criminal cases based under Rule 42 (Sec. 3[b],
R 122) and Rule 45 (Sec. 3[e] R 122). If the appeal in

66

criminal cases is predicated upon either Rules 42 and 45,
it is likewise argued that the Neypes rule should be made
to apply.

4. Effect of application for probation
a. Non-suspension of period to appeal
Palo v. Militante

184 SCRA 395

April 18, 1990

Issue:
Does the filing of an application for probation suspend the
running of the period for perfecting an appeal?

Under the Neypes vs. CA decision, the appellant is given
a fresh period of 15 days from notice of the order of
denial of the motion.
Q: When do you appeal?

Held:
No. The pertinent portion of Sec. 4 of P.D. 968, as
amended by P.D. 1990, provides:
“SEC. 4. Grant of Probation. --- Subject to the
provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and
upon application by said defendant within the period
for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation
for such period and upon such terms and conditions
as it may deem best; Provided, That no application
for probation shall be entertained or granted if the
defendant has perfected an appeal from its judgment
of conviction.”
It is clear that what the law requires is that the
application for probation must be filed within the period
for perfecting an appeal. The need to file it within such
period was intended to encourage offenders, who are
willing to be reformed and rehabilitated, to avail of
probation at the first opportunity. Such provision was
never intended to suspend the period for the perfection
of an appeal.

b. Waiver of appeal
Cal v. CA

for probation is an admission of guilt on the part of an
accused for the crime which led to the judgment of
conviction and . . . the application for probation is
considered a waiver upon his part to file an appeal, . . .”
The trial court’s order denying the motion to withdraw his
application for probation and rejecting his notice of
appeal, partook of the nature of an order granting
probation, which is not appealable.

251 SCRA 523

December 28, 1995

Facts:
On the day that accused was convicted of illegal
recruitment and sentenced to 4 years imprisonment, he
was committed to jail by virtue of a commitment order.
The following day, accused, assisted by his counsel, filed
with the court an application for probation, an affidavit of
recognizance, and an application for release on
recognizance. Almost 2 weeks later, accused filed with
the trial court a “Motion to Withdraw application for
Probation and Notice of Appeal,” alleging that he “hastily
filed his application because of the threats employed
upon him by the authorities” and that “he was not able to
intelligently consult with his lawyer and reflect on the
legal consequences and effects of his application for
probation under the law” so that he may not be
considered to have waived his right to appeal the
decision.” The court denied the motion.
Issue:
Did accused lose his right to appeal by applying for
probation?
Held:
Yes. Sec. 4 of P.D. 968 was amended by P.D. 1990 to
make probation and appeal mutually exclusive. This is
because an accused applying for probation is deemed to
have accepted the judgment. In fact, “. . . the application

A: Under Section 6, fifteen (15) days from promulgation of
the judgement or from notice of the order appealed from.
Q: What happens if you filed a motion for new trial or
reconsideration within the 15-day period?
A: The same as in civil cases – the filing of the motion for
reconsideration will suspend the running of the 15-day
period to appeal until notice of the order overruling the
motion has been served upon the accused or his counsel,
at which time, the balance of the period begins to run.
That phrase was added in the new rules – “At which time,
the balance of the period begins to run.” That is only
emphasizing what the rule should be.
So, the 15-day period does not start to run all over again.
But you can still apply the balance if the motion for
reconsideration is denied. Now, itong tanong ko:
Q: Suppose the motion for new trial is granted. After new
trial, convicted ka pa rin. So there will be a second
judgement. What is your period to appeal? Is it 15 days
all over again? Or we count the 15-day period from the
first judgement, deducting the period during which the
motion for new trial was pending?
A: The SC said, the counting of the 15-day period starts
all over again from the time you received the second
decision. (Obugan vs. People, May 22, 1995)
Q: Now how do you reconcile that principle with Section
6?
A: Section 6 is different because here, the motion for new
trial is denied but in the above example, the motion for
new trial was granted. But after new trial, convicted ka pa
rin. So you start counting the period to appeal all over
again from the time you received the second judgement.
And the SC cited Section 6[c] of Rule 121.

Rule 121, SEC. 6. Effects of granting a new trial or
reconsideration. – The effects of granting a new trial or
reconsideration are the following:
xxxxx
(c) In all cases, when the court grants new trial or
reconsideration, the original judgment shall be set aside
or vacated and a new judgment rendered accordingly.
(6a)

Q: What is the effect of a motion for new trial if it is
granted?
A: Under Rule 121, the judgement is vacated. Meaning, it
doesn’t exist anymore. After new trial, convicted – all
over, start na naman tayo. That was the ruling in the
case of:

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OBUGAN vs. PEOPLE

May 22, 1995

3. If death penalty is imposed:

HELD:



If a motion for new trial is granted, and after new trial,
the accused is still convicted, he has 15 days all over
again to file an appeal because under Rule 121, the
previous judgement of conviction was already vacated. It
does not exist anymore.

The stenographic reporter shall, within 30 days
from promulgation of the sentence, file with the
clerk the original and 4 copies of the duly
certified transcript of his notes of the
proceedings



No extension of time for filing of said transcript
of stenographic notes shall be granted except
by the Supreme Court and only upon justifiable
grounds.

“Thus the rule provides for the interruption of the appeal
period in the event the motion for new trial or
reconsideration is overruled. The implication is that if the
motion for new trial is granted, as in the case at bar, and
a new judgment is rendered after the new trial was
conducted, the period within which to perfect an appeal is
fifteen days from receipt of the new judgment.”

1. Completion of stenographic notes
Advincula v. IAC

147 SCRA 262

January 16, 1987

Issues:
Alright, let’s go to another issue. You have two choices if
you are convicted – 1) File a motion for reconsideration.
2) If denied, you appeal. Now, I will file a motion for
reconsideration. And then while it is still pending, there is
still no order, I changed my mind, “Appeal na lang ako
diretso. I will not anymore insist. Wala nang mangyayari
diyan.”
Q: Can I say, “I’m withdrawing my motion for
reconsideration and I am instead substituting it with a
notice of appeal?”
A: YES, because that is your choice. You can abandon
your motion for reconsideration, withdraw it and then file
a notice of appeal. No problem about that.
Q: But I will now reverse the situation: Within 15 days
after promulgation, I will file an appeal. And then after 1
or 2 or 3 days, “Teka muna. I will file muna pala a motion
for reconsideration. Huwag muna yang appeal, baka
sakali pala.” So I say, “I’m withdrawing my notice of
appeal, and instead file a motion for reconsideration.”
Can I still do that?
A: In the case of PEOPLE VS. DE LA CRUZ (201 SCRA 632),
The SC said, NO, you cannot because the moment you file
your notice of appeal, the appeal is already perfected and
the court has lost jurisdiction already over the case and
can no longer change its own decision.
So baliktad ‘no? – motion for reconsideration-withdrawappeal, pwede. Appeal, and then withdraw – motion for
reconsideration, hindi pwede! because the court has no
more jurisdiction over the case.
Sec. 7
Duties of Stenographer when Appeal is Filed
1. When notice of appeal is filed by the:
1. Accused – the trial court shall direct the
stenographic reporter to transcribe his notes of the
proceedings
2. People of the Philippines – the trial court
shall direct the stenographic reporter to transcribe such
portion of his notes of the proceedings as the court, upon
motion, shall specify in writing
2. The stenographic reporter shall:
1. Certify to the correctness of the notes and the
transcript thereof, which shall consist of the original and
four copies, and
2. File said original and four copies with the clerk
without unnecessary delay

May the CA dismiss an appeal on the ground of the failure
of accused to take the necessary steps to complete the
record, particularly the absence of the stenographic notes
of the testimony of one witness, despite an order of the
court?
Held:
No. In all criminal prosecutions the accused shall have the
right to appeal in the manner prescribed by law. Because
the right to appeal is granted by the statute, it is part of
due process of law, denial of which violates the due
process clause of the Constitution. Appeal being an
essential part of our judicial system, Courts should
proceed with caution so as not to deprive a party of the
right to appeal. Sec. 1 of Rule 50 merely confers a power
and does not impose a duty; and the same is not
mandatory but merely directory which thus requires a
great deal of circumspection, considering all the
attendant circumstances. It was primarily because of the
negligence and lackadaisical attitude of the Court
stenographic reporters that the notes of the proceedings
were either lost or not transcribed. This non-feasance
should not prejudice the right of the accused to have their
convictions reviewed by a higher Court, especially since it
is their liberty which is at stake.

Sec. 8
Transmission to Appellate Court upon Appeal
1. Within 5 days from the filing of the notice of
appeal – the clerk of the court with whom the notice of
appeal was filed must transmit to the clerk of court of the
appellate court the following:


The notice of appeal filed,



The complete record of the case, and



The original and 3 copies of the transcript of
stenographic notes, together with the records

2. The other copy of the transcript – shall remain in
the lower court

1. Officer to whom duty is imposed
Tan v. Coliflores

240 SCRA 303

January 20, 1995

Facts:
The MTC judge ordered the Clerk of Court to transmit the
original records of the concubinage case to the RTC on
Feb. 17, 1993 following an appeal from the accused.

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However, it was only on Mar. 10, 1994, when the records
were finally transmitted to the higher court.

2. The transcript shall also be forwarded – within 10
days after the filing thereof by the stenographic reporter

Issue:
Who is administratively liable for the delay?
Held:

Judgment where accused escapes
People v. Palabrica

Rule 122, Sec. 8 provides that the clerk or judge of the
court with whom the notice of appeal has been filed
must, within 5 days after filing of the notice, transmit to
the clerk of court to which the appeal is taken, the
complete record in the case together with the notice of
appeal. The judge is not liable for the year-long delay in
the transmission of the records. While he has supervision
over the clerk of court, he cannot be expected to
constantly check on the latter’s performance of his duties
since the Clerk of Court is presumed to be a responsible
employee. To the contrary, the judge had a right to
expect that the Branch Clerk of Court would enforce his
order. It is the Branch Clerk of Court who is responsible
for seeing to it that the records of appealed cases are
properly sent to the appropriate appellate court without
delay. He has shown want of diligence for which he should
be held administratively liable.

Sec. 9
Appeal to the RTC; Procedure
1. Within 5 days from perfection of the appeal – the
clerk of court of the MTC shall transmit the original record
to the appropriate RTC
2. Upon receipt of the complete record of the case,
transcripts and exhibits – the clerk of court of the RTC
shall notify the parties of such fact
3. Within 15 days from receipt of said notice, the
parties may:
1. submit memoranda or briefs, or

Held:
Yes. There is no good reason to withhold judgment
pending the re-arrest of accused after reviewing the
decision of the trial court. Rule 122, Sec. 10 of the
Revised Rules of Criminal Procedure in fact provides for
“automatic review and judgment.” Consequently, if such
review shows that accused is guilty, his conviction must
be affirmed either in toto or with modification, just as his
acquittal must be declared if a review shows he is
innocent. There is no sense in holding that the automatic
review of the decision must proceed even if the accused
has absconded short of pronouncing his guilt in the event
the evidence warrants affirmance of the decision of the
trial court.

SEC. 11. Effect of appeal by any of several accused.
Effect of Appeal when there are Several Accused
1. When an appeal is made by one or more of
several accused:
1. General Rule – the ones who did not appeal shall
not be affected by the judgment of the appellate
court
2. Exception – they shall be affected only when the
judgment of the appellate court is:
1. favorable to them, and
2. applicable to them

4. When the RTC shall decide the case:

same,

May 7, 2001

Issue: In the absence of the accused who escaped
during trial, can a decision be rendered by an appellate
court affirming a death sentence imposed by the trial
court.

2. be required by the RTC to do so.

briefs, or

357 SCRA 533

1. after the submission of such memoranda or

2. Effect of appeal by the offended party with
respect to the civil aspect:

2. upon the expiration of the period to file the

It shall not affect the criminal aspect of the judgment
or order appealed from

5. What may be the basis for the decision of the
RTC:
1. the entire record of the case, and
2. such memoranda or briefs as may have been

3. Effect of perfection of the appeal:
The execution of the judgment or final order
appealed from shall be stayed as to the appealing
party

filed.

Sec. 10 Transmission of records in case of death
penalty.

1. Where judgment is reversed

Transmission of Records to the CA for Automatic
Review in Case of Death Penalty

Facts:

1. The records shall be forwarded:
1. within 20 days,
2. but not earlier than 15 days from:


the promulgation of the judgment, or



notice of denial of a motion for new trial
or reconsideration

People v. Escano

349 SCRA 674

January 19, 2001

Escano, together with Usana and Lopez, was charged with
violation of Sec. 4, Art. II of R.A. 6425. Escano and Usana
were also charged with violation of P.D. 1866. All were
convicted and they appealed. Escano, however, withdrew
his appeal and started serving his sentence. Usana and
Lopez were later on acquitted by the SC.
Issue:
Should Escano be also acquitted?

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Held:
Yes. Sec. 11(a), Rule 122 of the New Rules on Criminal
Procedure provides that an appeal taken by one or more
of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate
court is favorable and applicable to the latter. Considering
that the acquittal of Usana and Lopez based on
reasonable doubt, the same should benefit Escano
notwithstanding the fact that he withdrew his appeal.

2. Where civil liability is modified
People v. Cabales

274 SCRA 83

June 19, 1997

Facts:
The RTC convicted X and Y of 2 counts of rape and
ordered them to pay P25,000 for each count as moral
damages. X appealed, while Y did not. In affirming the
convictions, the SC increased the moral damage to
P50,000 for each count, deleted the exemplary damage
awarded by the RTC, and further ordered payment of
P100,000 as indemnity to the victim.

who appealed, nanalo. Will it favor then other accused
who did not appeal?
A: The GENERAL RULE is NO because if you do not appeal,
the judgement of conviction will become final as far as
you are concerned.
However, there is an EXCEPTION – if the ruling in the
appeal also applies to you, you will be favored.
For example: Two accused were convicted. One appealed,
the other one did not appeal. On the appeal sabi ng
court, “No. The victim was not killed. He committed
suicide.” Naloko na! Acquitted yun! “Paano na ako?
Nakulong ako!” It will also benefit you because the
judgement of the appellate court is also favorable and
applicable to you. BUT if the ruling is only applicable to
the appealing accused, pasensya ka.
Like for example, both of you are convicted. You will not
appeal, he will appeal. He will appeal tapos sabi niya,
“Minor man ako! Minor!” Tapos sabi ng appellate court ,
“Ah, minor! He did not act with discernment. Ok!
Acquitted!” So, paano ka? Maiwan ka, hindi ka man
minor! The defense of minority is not applicable to you.

Issue:
What is the effect of the modifications on the civil liability
of Y who did not appeal?
Held:
Additional penalties cannot prejudice an accused who
did not appeal, but modifications to the judgment
beneficial to him are considered in his favor. Because of
the deletion of the award of exemplary damages, Y is only
liable, jointly and severally with X, for the sum of P50,000
as moral damages for the 2 counts of rape as adjudged
by the RTC. Moreover, Y is not affected by the increase in
the amount of the said award. In the same vein that the
additional moral damages can no longer be imposed, Y
cannot also be ordered to pay civil indemnity.

Now, this provision has been applied already several
times. Among the first cases where this was applied was
the case of:
PEOPLE vs. FERNANDEZ

186 SCRA 830

FACTS:
There were two accused charged for selling marijuana,
under the Dangerous Drugs Act. Both of them were
convicted. Accused No. 1 appealed, but Accused No. 2
jumped bail and remained at large. On appeal, the
Supreme Court acquitted Accused No. 1 because of
material discrepancies in the testimony of the star
prosecution witness.
ISSUE:

3. Where accused escapes before trial

What happens now to the conviction of Accused No. 2,
who escaped and did not appeal his conviction?

People v. Fernandez

HELD:

186 SCRA 830

June 27, 1990

Issue:
Does the rule that a favorable judgment in an appeal
benefit an accused who did not appeal apply also to a coaccused who jumped bail or escaped after arraignment
and was tried and convicted in absentia?
Held:
Yes. Under Sec. 11, Rule 112, an appeal shall not affect
those who did not appeal, except insofar as the judgment
of the appellate court is favorable and applicable to the
latter. While, in effect, accused committed an act of
defiance of the law by escaping, such undesirable
conduct, which should not be condoned, has sometimes
been ascribed to a sense of desperation of those who
believe they are guiltless but fear that they cannot prove
their innocence. While we castigate and reprove his
jumping bail and remaining at large up to now, we have
to concede, however, that our disquisition in this case is
applicable and favorable to him, hence he is affected by
and shall benefit from the acquittal that we hand down in
this appeal.

It applies to the Accused No. 2. “While, in effect, he
committed an act of defiance of the law by escaping, we
are not without other prior incidents where such
undesirable conduct, which should not be condoned, has
sometimes been ascribed to a sense of desperation of
those who believe they are guiltless but fear that they
cannot prove their innocence. While we castigate and
reprove his jumping bail and remaining at large up to
now, we have to concede, however, that our disquisition
in this case is applicable and favorable to him, hence he
is affected by and shall benefit from the acquittal that we
hand down in this appeal.”

So acquitted kahit na nag-jump bail, because of this
provision…So with that, he can come out openly. And the
ruling happened again. The same thing happened in the
1996 case of PEOPLE VS. PEREZ (263 SCRA 206). And one
of the latest where this happened again is the 1998 case
of
PEOPLE vs. RUGAY

291 SCRA 692

HELD:
Q: There are 2 accused. Both of them are convicted. One
will appeal, the other will not appeal. Suppose, the one

“Finally, the Court notes that the conviction of appellant's
co-accused, Arvil Villalon, rests on the same evidence

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used to convict appellant. The Court finds that such
evidence does not prove beyond reasonable doubt either
of the accused's guilt. The acquittal of Ricolito Rugay
should also benefit Arvil Villalon, the withdrawal of the
latter's appeal notwithstanding.”

Withdrawal of Appeal
1. When withdrawal of appeal may be made:
1. Even after perfection of the appeal
Provided the record of the case had not been
forwarded to the appellate court

Now let’s go to [b]:

2. When the appeal is made to the RTC from the
judgment of the MTC:

(b) The appeal of the offended party from the civil aspect
shall not affect the criminal aspect of the judgment or
order appealed from.
This is what I told you earlier that the civil aspect is
different from the criminal aspect. It is possible that the
accused is acquitted but the offended party may appeal
insofar as the civil aspect of the case is concerned. It
shall not affect the criminal aspect of the judgement or
order appealed from.

Q: Normally, who will handle the appeal in criminal cases?
A: Solicitor-General. The Solicitor-General handles the
appeal.
BUT the SC said that if the appeal is only about the
offended party, walang pakialam ang gobyerno diyan!
Let the offended party handle his own appeal and let him
get his own lawyer to handle the appeal. So the Court
said in the case of
BERNARDO vs. COURT OF APPEALS

190 SCRA 63

Provided a motion to withdraw appeal is filed
before the RTC renders judgment on appeal
2. The granting of the motion to withdraw an
appeal is discretionary on the part of the court

Withdrawal of the appeal:
When withdrawal is Made

Which
Court
Withdrawal

Upon PERFECTION of the appeal
BEFORE the record has been
forwarded to the appellate court

Court of Origin

BEFORE judgment of appealed case
in the RTC originally decided by MTC

RTC

1. Discretion of the court
Teodoro v. CA

HELD:
“The Court has clearly settled the matter by ruling that
despite a judgment of acquittal, the offended party,
private respondent in the case at bar, may appeal, only
insofar as the civil aspect of the case is concerned.”
“Such an appeal dispenses with the authority and
representation of both the fiscal and the Solicitor General,
considering that the subject matter of the action involves
solely the interests of the offended party and hence, no
longer concerns the State.”

258 SCRA 603

July 11, 1996

Facts:
Accused was charged with grave slander by deed, but the
MTC convicted him of simple slander by deed sentencing
him to pay a fine of P110. He appealed to the RTC. When
the RTC ordered him to submit his memorandum, he
instead filed a motion to withdraw appeal and paid the
fine of P110 imposed by the MTC. The RTC denied the
motion and convicted him of grave slander.
Issue:
Is the RTC correct?

Let’s go to paragraph [c]:

Held:

(c) Upon perfection of the appeal, the execution of the
judgment or final order appealed from shall be stayed as
to the appealing party. (11a)

Yes. Under Rule 122, 12 of the Rules of Court, the
withdrawal of appeals from the decisions of the MTC lies
in the sound discretion of the RTC. To allow the withdrawal
of the appeal would be to allow an error of the MTC to go
uncorrected, because the crime committed was not
simple slander by deed but a grave one. In addition, since
accused appealed from the decision of the MTC, until that
appeal is validly withdrawn, there is no decision of the
MTC to serve or satisfy because the appeal, at the very
least, stayed the decision. His payment of the fine as
imposed on the judgment of the MTC did not render that
decision final and executor.

Q: What are the effects of a perfected appeal?
A: The following are the effects: parang sa civil procedure
din
1.

The execution of the sentence is stayed;

2.

The trial court loses jurisdiction over the case
because it is now transferred to the higher court,
the Court of Appeals.

3.

Once you appeal, the entire case is open for
review and you are waiving your right to double
jeopardy.

3. Withdrawal to pave way for new trial
People v. Dela Cruz

Q: Now finally, can you withdraw an appeal?
A: YES. The procedure for withdrawing an appeal is found
in Section 12:

SEC. 12. Withdrawal of appeal-

207 SCRA 632
1992

March 31,

Facts:
Accused filed a notice of appeal on their conviction for
murder. The following day, they filed a petition for new
trial on the ground that they found the other eye-witness
to the crime, whose “new address is newly discovered.” A

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Appro

few days later, they also filed with the trial court a motion
to withdraw appeal.
Issue:
Should the motion to withdraw appeal be granted?
Held:
No. In criminal cases, an appeal is deemed perfected
upon the filing of the notice of appeal. Upon the
perfection of the appeal, the trial court loses its power to
modify or set aside the decision, or order a new trial. All it
can do is to issue orders for the protection and
preservation of the rights of the parties which do not
involve any matter litigated in the appeal. This does not
mean, however, that an accused is thereafter forever
barred from filing a petition for new trial. In an
appropriate case, he may file it with the appellate court.
While it is true that accused filed a motion to withdraw
their appeal to save their petition for new trial, the
records do not show that the trial court favorably acted
on it. Besides, a notice of appeal, once filed, cannot be
validly withdrawn to give way to a motion for
reconsideration or a petition for new trial since, as above
stated, the filing of the notice perfected the appeal and
the court thereby lost its jurisdiction over the case;
hence, it can no longer act on either the motion or the
petition. The only valid withdrawal of an appeal would be
one where an accused decides to serve the sentence.

3. Where withdrawal should be denied
People v. Gatward

267 SCRA 785
1997

February 7,

Facts:
The trial court convicted the accused of violation of R.A.
7659 and erroneously imposed the penalty of 35 years of
reclusion perpetua when the proper penalty should have
been 40 years. Accused appealed, but before he could
submit his appeal brief, he moved to withdraw his appeal.
Issue:
Should the motion be granted?
Held:
No. The basic rule is that, in appeals taken from the RTC
to either the CA or the SC, the same may be withdrawn
and allowed to be retracted by the trial court before the
records of the case are forwarded to the appellate court.
Once the records are brought to the appellate court, only
the latter may act on the motion for withdrawal of appeal.
In the SC, the discontinuance of appeals before the filing
of the appellee’s brief is generally permitted. In this case,
however, the denial of the motion to withdraw is not only
justified but is necessary since the trial court had
imposed a penalty based on an erroneous interpretation
of the governing law thereon. The unauthorized penalty
would remain uncorrected if the appeal had been allowed
to be withdrawn. In fact, it would stamp a nihil
obstantium on a penalty that in law does not exist.

Now there is one interesting case about withdrawing an
appeal.
Definitely, withdrawal of appeal is your
prerogative, eh. If you are convicted and you appeal and
then later on you withdraw, that is your prerogative. You
are now accepting the judgement of conviction. Now let’s
see what happened in the 1996 case of
TEODORO vs. COURT OF APPEALS

258 SCRA 643

FACTS:
Amado Teodoro was charged with the crime of grave
slander by deed before the MTC of Mandaluyong. He was
convicted of the lesser offense of simple slander by deed
and sentenced to pay a fine of P110. So mababa. Hindi pa
siya kuntento, Teodoro appealed to the RTC. Of course,
what is the procedure pag nasa RTC na? – both parties
will prepare a memorandum.
After Teodoro’s lawyer had received a copy of the appeal
memorandum of the prosecution where the prosecution
urged that Teodoro be held guilty of grave slander by
deed, not just simple slander as the MTC, pagbasa niya
ng memorandum ng prosecution, “Naku, delikado pala
ako dito! Basig masamot ba! So, okay na lang yong
simple slander. Bayad na lang ako ng fine of P110”.
So he filed a motion to withdraw his appeal. Kay nakita
niya, delikado pala e! Baka mabalik sa dati, sa original
ba. So he is now accepting the decision. He is now
withdrawing his appeal. Apparently, he realized that his
appeal was likely to result in the imposition of a higher
penalty and he wanted to avoid that possibility.
HELD:
Under Section 12 of Rule 122, the withdrawal of appeal is
not a matter of right, but a matter which lies in the sound
discretion of the court and the appellate court. After the
parties in this case had been required to file their
memoranda and the memorandum of the prosecution
had been filed and a copy served on appellant, it was too
late for Teodoro to move for the withdrawal of the appeal.
It was apparent that petitioner's motion was intended to
frustrate a possible adverse decision on his appeal. That
is what exactly happened in this case. Withdrawal of the
appeal at that stage would allow an apparent error and
possibly an injustice to go uncorrected. Justice is due as
much to the State — the People of the Philippines — as to
the accused.
So even if he is accepting already the lower penalty, sabi
ng Court, hindi na.
Nag-file na yung kabila ng
memorandum, eh. So, tuloy na. I do not know what
happened after that but definitely, he was not allowed
anymore to withdraw the appeal anymore. Yaan! That is
the risk nga of appealing, sometimes.

SEC. 13. Appointment of counsel de oficio for accused on
appeal Duties of the Clerk of Court of the Trial Court when
Accused Files a Notice of Appeal
1. To ascertain from the appellant – if confined in
prison, whether he desires the RTC, CA or the SC to
appoint a counsel de oficio to defend him, and
2. To transmit – with the record on a form to be
prepared by the clerk of court of the appellate court:
1. a certificate of compliance with this duty, and
2. the response of the appellant to his inquiry

1. Inability to hire counsel
People v. Rio

201 SCRA 702
1991

September 24,

Issue:
May an accused be allowed to withdraw his appeal by
reason of poverty?

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Held:

Rule 124 PROCEDURE IN THE COURT OF APPEALS

No. The only reason offered by
accused for the
withdrawal of his appeal is his inability to retain the
services of a counsel de parte on account of his poverty,
a reason which should not preclude anyone from seeking
justice in any forum. It seems that the accused was
unaware that this Court can appoint a counsel de oficio to
prosecute his appeal pursuant to Sec. 13 of Rule 122 of
the Rules of Court and the constitutional mandate
provided in Sec. 11 of Art. III of the 1987 Constitution on
free access to courts. This constitutional provision
imposes a duty on the judicial branch of the government
which cannot be taken lightly. “The Constitution is a law
for rulers and for people equally in war and in peace and
covers with the shield of its protection all classes of men
at all times and under all circumstances.”

SECTION 1. Title of the case.
Terms to be used in Appeals to the CA
1. Title of the case:
origin

It shall be the same as it was in the court of

2. Designation of parties:
1. Appellant – the party appealing the case
2. Appellee - the adverse party

SEC. 2. Appointment of counsel de oficio for the accused.
Appointment of Counsel de Oficio for the Accused

Now one interesting case about appointment of counsel
de oficio, is what happened in the 1991 case of
PEOPLE vs. RIO

201 SCRA 702

FACTS:
The accused was sentenced to reclusion perpetua. He
was detained at the National Penitentiary. He appealed.
And then later, he wrote a letter to the SC, “I am
withdrawing my appeal. I am no longer continuing my
appeal because I cannot afford it. Poverty prevents me
from pursuing the appeal.” The SC got intrigued, ‘no? The
SC issued an order directing the clerk of Court to go to
the National Penitentiary and look for this accused to
confirm if he did really send this letter to the Supreme
Court.
So hinanap siya. Nakita. You wrote this letter? “Yes.” You
affirm what you say? “Yes. Hindi ko kaya. Pobre ako, eh. I
cannot afford the appeal.” So, siya talaga. He is
withdrawing his appeal because of poverty. And the SC
came up with this decision:
HELD:
“The right to a counsel de oficio does not cease upon the
conviction of an accused by a trial court. It continues,
even during appeal, such that the duty of the court to
assign a counsel de oficio persists where an accused
interposes an intent to appeal. Even in a case, such as
the one at bar, where the accused had signified his intent
to withdraw his appeal, the court is required to inquire
into the reason for the withdrawal. Where it finds the sole
reason for the withdrawal to be poverty, as in this case,
the court must assign a counsel de oficio, for despite such
withdrawal, the duty to protect the rights of the accused
subsists and perhaps, with greater reason. After all,
“those who have less in life must have more in law.”
Justice should never be limited to those who have the
means. It is for everyone, whether rich or poor. Its scales
should always be balanced and should never equivocate
or cogitate in order to favor one party over another.”
So, sabi ng SC, your desire to withdraw because of
poverty, denied! We will continue. We will appoint a
lawyer for you. We will get the best. So, tuloy ang kaso.
And then, after reviewing the evidence, sabi ng Court:
“You are guilty!” [ha!ha!ha!] Guilty pa rin! But definitely,
you will not be allowed to withdraw. Yes, he was still
found guilty
in the case of Rio. Akala niya siguro,
paboran siya ng SC because he is poor. Ah, hinde. You
are still guilty.

1. When the clerk of court of the CA shall designate
a counsel de oficio for the accused – if it appears
from the record of the case that the accused:


is confined in prison,



is without counsel de parte in appeal, or



has signed the notice of appeal himself

2. An appellant who is not confined in prison may
be assigned a counsel de oficio provided:


he makes a request within 10 days from receipt
of the notice to file his brief, and



he establishes his right thereto

SEC. 3. When brief for appellant to be filed.
Appellant’s Brief
1. When appellant’s brief shall be filed:
Within 30 days from receipt by the appellant or his
counsel of the notice from the clerk of court of the CA
that the evidence, oral and ocumentary, is already
attached to the record
2. Number of copies:


7 copies of appellant’s brief to be filed with the
clerk of court of the CA, and



with proof of service of 2 copies thereof upon the
appellee

SEC. 4. When brief for appellee to be filed; reply brief of
the appellant.
Appellee’s Brief
1. When appellee’s brief shall be filed:
Within 30 days from receipt of the brief of the
appellant
2. Number of copies:


7 copies of the appellee’s brief to be filed with
the clerk of court of the CA



with proof of service of 2 copies thereof upon the
appellant

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Appellant’s Reply
1. This may be filed within 20 days from receipt of
appellee’s brief; and

both
parties
controversy,


2. It may traverse matters:
1. raised in the appellee’s brief, but

Extension of Time for Filing Briefs

2. Exception – may be allowed only when:
1. A motion for extension is filed before the
expiration of the time sought to be extended, and
2. There is good and sufficient cause for an
extension

SEC. 6. Form of briefs.– Briefs shall either be printed,
encoded or typewritten in double space on legal size
good quality unglazed paper, 330 mm. in length by 216
mm. in width. (6a)

SEC. 7. Contents of brief. – The briefs in criminal cases
shall have the same contents as provided in sections 13
and 14 of Rule 44. A certified true copy of the decision or
final order appealed from shall be appended to the brief
of the appellant. (7a)
Contents of Appellant’s Brief [Rule 44 Sec. 13]
1. A subject index of the matter in the brief with:
arguments

and

page

2. a table of:


cases alphabetically arranged,



textbooks, and



statutes cited with reference to the
pages where they are cited;

2. An assignment of errors intended to be urged –
which errors shall be separately, distinctly and concisely
stated without repetition and numbered consecutively;
3. Under the heading “Statement of the Case:”


a clear and concise statement of the
nature of the action,



a summary of the proceedings,



the appealed rulings and orders of the
court,



the nature of the judgment, and



any other matters necessary to an
understanding of the nature of the
controversy, with page references to
the record;

4. Under the heading “Statement of Facts:”


in

together with the substance of the
proof relating thereto in sufficient detail
to make it clearly intelligible, with page
references to the record;



the appellant’s arguments on each
assignment
of
error
with
page
references to the record



the authorities relied upon shall be
cited by:

1. General Rule – not allowed

the

those

6. Under the heading “Argument:”

SEC. 5. Extension of time for filing briefs.

of

of

5. A clear and concise statement of the issues of fact
or law to be submitted to the court for its judgments;

2. not covered in appellant’s brief

1. a digest
references, and

and

a clear and concise statement in a
narrative form of the facts admitted by

1.

the page of the report at which the
case begins, and

2.

the page of the report on which the
citation is found

7. Under the heading “Relief” – a specification of the
order or judgment which the appellant seeks; and
8. In cases not brought up by record on appeal, the
apellant’s brief shall contain, as an Appendix, a copy of
the judgment or final order appealed from

Contents of Appellee’s Brief [Rule 44 Sec. 14]
1. A subject index of the matter in the brief with:
1. a digest
references, and

of

the

arguments

and

page

2. a table of:
1. cases alphabetically arranged,
2. textbooks, and
3. statutes cited with reference to the pages
where cited;
2. Under the heading:
1. “Statement of Facts” – the appellee shall
state that he accepts the statement of facts in
the appellant’s brief, or
2. “Counter-Statement of Facts” – he shall
point out such insufficiencies or inaccuracies as
he believes exist in the appellant’s statement of
facts:


with references to the pages of the
record in support thereof, but



without repetition of matters in the
appellant’s statement of facts; and

3. Under the heading “Argument”:
1. the appellee shall set forth his arguments in
the case on each assignment of error with page
references to the record,
2. the authorities relied upon shall be cited by:


the page of the report at which the
case begins, and



the page of the report on which the
citation is found

74

1. escapes from prison or confinement,
1. Effect of failure to comply

2. jumps bail, or

a. Where defect not fatal

3. flees to a foreign country

People v. de la Concha 388 SCRA 280
September 3, 2002

2. How the appeal is dismissed:
1. Either upon motion of appellee or motu
propio, and

Facts:
The Brief of appellant who was convicted for rape lacked
the following: (a) table of cases cited; (b) statement of
issues; and (c) page references to the record in the
Statement of the Case and in the Statement of Facts.
Issue:

2. With notice to appellant in either case

1. Effect of failure to file brief
Tamayo v. People

Should his appeal be dismissed?

423 SCRA 175
17, 2004

February

Held:

Facts:

No. The contents of the Appellants Brief are enumerated
in Sec. 13, Rule 44, in relation to Sec. 7 of Rule 124 and
Sec. 1 of Rule 125 of the Rules of Court. The infractions
above mentioned are not, however, among the grounds
for dismissal of appeals as provided for under Sec. 5 of
Rule 56, in relation to Sec. 18 of Rule 124 and Sec. 1 of
Rule 125. Hence, the procedural infirmities of the
Appellant’s Brief filed in this case do not warrant a
dismissal of his appeal.

Accused was convicted of arson by the RTC and
sentenced to suffer imprisonment of 6 years and 1 day to
12 years and 1 day. After he filed his notice of appeal, the
CA required him to submit his brief. Despite the lapse of
the deadline, however, he failed to do so and the court
dismissed his appeal under Sec. 8, Rule 124 of the
Revised Rules on Criminal Procedure. Accused is
challenging the dismissal claiming that his failure to
submit the brief was the fault of his lawyer who
abandoned him without his knowledge and consent.
Issue:

b. Where defect fatal
People v. Fabula

265 SCRA 607
1996

Should the appeal be reinstated?
December 16,

Held:

Facts:
Appellant was convicted of robbery with double homicide.
His brief proceeded to discuss his arguments without
complying with the other requirements of Rule 44 of the
Rules of Court.
Issue:
Is the defect fatal?
Held:
Yes. Appellant’s counsel proceeded directly to discuss his
arguments without stating the assigned errors and the
issues in accordance with Rule 44[b] & [e] Sec. 13 of the
Rules of Court. The brief also does not contain a Prayer to
indicate the relief sought by appellant. These omissions
are fatal and highlight the bankruptcy of the appeal.

Q: Now, who prepares the appellee’s brief?
A: The Solicitor General.

SEC. 8. Dismissal of appeal for abandonment or failure to
prosecute.
Dismissal of Appeal

In this case, when accused learned of the dismissal of his
appeal, he timely moved for its reconsideration on the
ground that he had no knowledge that his counsel not
only failed to file the required brief but actually withdrew
as such without his consent. Accused is not responsible
for the failure to file the brief because he was waiting for
the resolution of his motion for reconsideration. It must
be recalled that, in his motion, he prayed that he be
given sufficient time to file his brief in the event of
reinstatement of his appeal.

2. Effect of jumping bail
People v. Castillo

430 SCRA 40

May 28, 2004

Facts:

1. Grounds for dismissal:
1. Failure of appellant to file his brief within 30
days from receipt of the notice from the clerk of
court of the CA
Exception – when the appellant
represented by counsel de oficio

Yes. Accused timely filed his notice of appeal and the CA
acquired jurisdiction over the case. Accused merely failed
to submit his brief within the period provided by the rules.
A distinction should be made between the failure to file a
notice of appeal within the reglementary period and the
failure to file a brief within the period granted by the CA.
The former results in the failure of the CA to acquire
jurisdiction over the appealed decision resulting in its
becoming final and executor if appellant fails to move for
reconsideration. The latter simply results in the
abandonment of the appeal which can lead to its
dismissal upon failure to move for its reconsideration.

is

2. If, during the pendency of the appeal, the
appellant:

The RTC convicted accused of murder and sentenced him
to suffer the penalty of 14 years and 8 months, as
minimum, to 17 years and 4 months, as maximum, both
of reclusion temporal. On appeal, the CA modified the
sentence to reclusion perpetua. Consequently, the CA
certified the case to the SC for the purpose of reviewing
the criminal liability of accused, in accordance with Rule
124, Sec. 13 of the Rules of Court. Meanwhile, during the
pendency of the appeal, accused jumped bail.

75

Issue:

HELD:

Considering that accused jumped bail, should his appeal
be dismissed pursuant to Sec. 8, Rule 124?

“Under Sec. 8 of Rule 124, the failure to file the
appellant's brief on time may cause the dismissal of the
appeal, upon either the motion of the appellee or on the
own motion of the appellate court, provided that notice
must be furnished to the appellant to show cause why his
appeal should not be dismissed.” At least give him a
warning.

Held:
No. If the appeal is dismissed at this stage, the decision
of the RTC sentencing accused to a prison term within the
range of reclusion temporal would become final, despite
the finding of the CA that accused should instead be
meted the penalty of reclusion perpetua. To avoid the
absurdity of rewarding accused for his act of jumping bail,
the instant appeal must be considered.

The second paragraph of Section 8 is more important:

3. Effect of posting fake bail bond
People v. Del Rosario 348 SCRA 603
19, 2000

December

Facts:
Accused was convicted of murder and sentenced to 10
years and 1 day, to 17 years and 4 months. On appeal,
the CA affirmed the conviction but increased the penalty
to reclusion perpetua and thus certified the case to the
SC. While the case was pending before the SC, it was
discovered that the personal bail bond accused posted
was fake.
Issue:
What is the effect of the fake bail bond posted on the
appeal?
Held:
Under Sec. 8[2], Rule 124 of the Rules of Court, the
escape from prison or confinement, the act of jumping
bail, or fleeing to a foreign country of the accused results
in the outright dismissal of his appeal.
In this case, by filing fake bail bond, accused is deemed
to have escaped from confinement even while the appeal
was pending before the CA. In the normal course of
things, the CA should have dismissed the appeal.
However, this was not possible because the fake bail
bond was discovered only after the CA had already
affirmed the sentence. Hence, to revert to the sentence
imposed by the RTC would result in the absurdity that by
filing a fake bond, accused would enjoy the lower
sentence imposed by the RTC. To avoid this blatant
mockery of justice, the CA must continue to exercise
jurisdiction over the appeal. Accused having mocked and
trumped the judicial process by filing a fake bail bond, he
must be considered to have waived his right to further
review of the decisions of the RTC and the CA,
respectively.
If the appellant will not file his appellant’s brief, the case
is dismissed – same in civil cases – except where the
appellant is represented by counsel de oficio because the
counsel de oficio is really a court-appointed lawyer. So
why will the accused suffer if the court-designated lawyer
is negligent? But if it is a lawyer of your own choice who
failed to file the brief, then you suffer the consequence.

Although we are talking of criminal cases, if you based it
on the guidelines, it would seem that when the CA
dismisses the appeal, it should give a warning to the
accused. This is what the SC said in the case of
FAROLAN vs. COURT OF APPEALS
1995

“But the exception to this rule has been clearly stated —
i.e. when the appellant is represented by a counsel de
oficio.”

February 07,

The Court of Appeals may also, upon motion of the
appellee or motu proprio, dismiss the appeal if the
appellant escapes from prison or confinement, jumps
bail or flees to a foreign country during the pendency
of the appeal. (8a)
There is an appeal pending in the CA, the appellant
escaped from prison or jumped bail, or flees to a foreign
country, under the 2nd paragraph of Section 8, his appeal
will be dismissed. Abandoned na! By his act of running
away, the judgment of conviction will become final.
This provision prompted the SC to also apply doon sa
promulgation. Under Rule 120, if during the promulgation
the accused disappears, the promulgation will proceed in
absentia and then the law says the accused forfeits all his
remedies. Why? Kung nag-appeal siya, and then naglayas siya, the appeal will be dismissed, lalo na kung di
siya nag-appeal! You will also lose your right to appeal.
The reason according to the SC, once the accused
escaped from prison or confinement or jumped bail, he
loses his standing in court and unless he surrenders or
submits to the jurisdiction of the court, he is deemed to
have waived any right to seek relief from the court.
(Gimenez vs. Nazareno, 160 SCRA 1)

Q: When a person who is sentenced to death escaped,
can the automatic review still proceed? Or assuming
there is already an automatic review and while he is in
jail, naglayas, and the SC learns of his escape, what will
happen to the automatic review? Tuloy or dismissed?
A: This is the question which bugged the SC in the 1996
case of PEOPLE vs. ESPARAS (260 SCRA 539) which was
asked in the 1998 bar in remedial law. The SC here is not
unanimous. Six (6) justices dissented from the majority.
There are two sections compared here – Section 8 of Rule
124 and Section 10 of Rule 122.

PEOPLE vs. ESPARAS

260 SCRA 539 [1996]

ISSUE:
Will the SC proceed to automatically review the death
sentence of an accused who was tried in absentia and
remained at large up to the present time? Or even if he
appealed, and while the appeal is pending, he escaped?
HELD:
The majority said YES. You cannot apply Rule 124
because of the nature of the death penalty. There are 6
justices who disagreed.
“Section 8 of Rule 124 of the Rules of Court which, inter
alia, authorizes the dismissal of an appeal when the
appellant jumps bail, has no application to cases where

76

the death penalty has been imposed. In death penalty
cases, automatic review is mandatory. This is the text and
tone of Section 10, Rule 122, which is the more applicable
rule.”
So there is an applicable rule and not the general rule in
Rule 124. Let’s go to the philosophy of the ruling:
“There is more wisdom in our existing jurisprudence
mandating our review of all death penalty cases,
regardless of the wish of the convict and regardless of the
will of the court. Nothing less than life is at stake and any
court decision authorizing the State to take life must be
as error-free as possible. We must strive to realize this
objective, however, elusive it may be, and our efforts
must not depend on whether appellant has withdrawn his
appeal or has escaped. Nor should the Court be
influenced by the seeming repudiation of its jurisdiction
when a convict escapes. Ours is not only the power but
the duty to review all death penalty cases. No litigant can
repudiate this power which is bestowed by the
Constitution. The power is more of a sacred duty which
we have to discharge to assure the People that the
innocence of a citizen is our concern not only in crimes
that slight but even more, in crimes that shock the
conscience. This concern cannot be diluted.”
“The Court is not espousing a “soft, bended, approach”
to heinous crimes for we have always reviewed the
imposition of the death penalty regardless of the will of
the convict. Our unyielding stance is dictated by the
policy that the State should not be given the license to
kill without the final determination of this Highest Tribunal
whose collective wisdom is the last; effective hedge
against an erroneous judgment of a one-judge trial court.
This enlightened policy ought to continue as our beacon
light for the taking of life ends all rights, a matter of
societal concern that transcends the personal interest of
a convict. The importance of this societal value should
not be blurred by the escape of a convict which is a
problem of law enforcement. Neither should this Court be
moved alone by the outrage of the public in the
multiplication of heinous crimes for our decisions should
not be directed by the changing winds of the social
weather.”

Meaning, our decision shall not be influenced by the
thinking of the people – social weather. And I think that is
a very nice explanation why you should not apply Rule
124.

(b) Where the judgment also imposes a lesser
penalty for offenses committed on the same occasion
or which arose out of the same occurrence that gave
rise to the more severe offense for which the penalty
of death is imposed, and the accused appeals, the
appeal shall be included in the case certified for
review to the Supreme Court.
(c) In cases where the Court of Appeals imposes
reclusion perpetual, life imprisonment or a lesser
penalty, it shall render and enter judgment imposing
such penalty.The judgment may be appealed to the
Supreme Court by notice of appeal filed with the
Court of Appeals.

How can this happen that the CA finds the penalty of
death, reclusion perpetua or life imprisonment should be
imposed? This happens normally in a situation like this:
Mr. Concon is charged with murder and the court
convicted him only for homicide – so temporal yan. Where
will he appeal? Sa CA because the penalty imposed is not
death or perpetua. The trouble is when the CA reviews
the case and finds that the crime should be murder pala!
Q: What should the CA do?
A: The CA should still decide and lay down the facts and
the law as if it is the SC. And then the CA should really
impose the death penalty or reclusion perpetua. But it
should not enter judgment. After imposing death or
perpetua, itapon sa SC, “Please review our work and find
out whether we are correct.”
Automatically, the CA will not enter judgement but should
elevate the case. So the SC should have the final say on
whether or not to adopt the findings and conclusions of
the CA. But definitely, the CA should not shirk from its
responsibility of deciding the case on its merits imposing
the correct penalty of death or perpetua. That is that
correct procedure under the new rules.

Sec. 9
Hearing and Disposition of Appeals
1. What shall be given precedence in disposition
over other appeals:
Appeals of accused under detention
2. Hearing and decision by the Court of Appeals:
1. shall be made at the earliest practicable time,

Section 12. Power to receive evidence.- The Court of
Appeals shall have the power to try cases and conduct
hearings, receive evidence and perform all acts
necessary to resolve factual issues raised in cases falling
within it's original and appellate jurisdiction, including the
power to grant and conduct new trials or further
proceedings. Trials or hearings in the Court of Appeals
must be continuous and must be completed within three
months, unless extended by the Chief Justice. (as
amended by A.M.No. 00-5-03-SC)

And the last important portion here to master is the
second paragraph of Section 13:
(a)Whenever the Court of Appeals find that the
penalty of death should be imposed, the court, shall
render judgment but refrain from making an entry of
judgment and forthwith certify the case and elevate
its entire record to the Supreme Court for review.

2. with due regard to the rights of the parties
3. The accused need not be present in court during
the hearing of the appeal

1. Period to decide appeals
Re: Problem of Delays . . .
370 SCRA 661

November 28, 2001

Facts:
In the year 2000, the Integrated Bar of the Philippines
(IBP) passed a resolution urging the Supreme Court to
inquire into the reasons for the delay in the resolution of
cases before the Sandiganbayan. The report of the
Presiding Justice of said court showed that there were 415
cases submitted for decision remaining undecided. Art.
VIII, Sec. 15(1) of the Constitution provides that all cases

77

or matters “must be decided or resolved within 24
months from the date of submission to the Supreme
Court, and, unless reduced by the Supreme Court, 12
months for all lower collegiate courts, and 3 months for
all other lower courts.”

overlooked, misunderstood, or misapplied some facts or
circumstances of weight or substance which can affect
the result of the case.

Issue:

2. Exceptions to the rule

Which period applies to the Sandiganbayan?

People v. Gulion

Held:

Issue:

The Sandiganbayan is not a regular court but a special
court of the same level as the CA, with functions of a trial
court. Sec. 6 of P.D. 1606 provides that the “judgment
shall be rendered within 3 months from the date the case
was submitted for decision.” The same period is provided
in the rules of the Sandiganbayan which it promulgated.
Thus, the 3-month period, not the 12-month period
applicable to the CA, applies to the Sandiganbayan,
whether in the exercise of its original or appellate
jurisdiction.

When may the CA reverse the findings of fact made by
the trial court?

Sec. 10

349 SCRA 610

January 18, 2001

Held:
While factual findings of trial courts, as well as their
assessment of the credibility of witnesses, are entitled
great weight and respect more so when these are
affirmed by the CA, the following are the exceptions: (1)
when the conclusion is a finding grounded entirely on
speculations, surmises and conjectures; (2) the inferences
made are manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension
of facts or premised on the absence of evidence on
record.

Requisites for Reversion or Modification of the
Judgment of the Lower Court
1. The CA must examine the record and the evidence
adduced by the parties
2. The CA is of the opinion that error was committed
which injuriously affected the substantial rights of the
appellant

Sec. 11
Scope of Judgment; How the Court of Appeals may
Decide
1. It may reverse, affirm or modify the judgment of the
trial court
2. It may increase or reduce the penalty imposed by the
trial court
3. It may remand the case to the RTC for:

3. Increase of penalty
People v. Las Pinas

377 SCRA 377
2002

February 20,

Facts:
Accused was charged with rape of a 12-year old. After
trial, the RTC ruled that the prosecution failed to prove
the element of force and intimidation in the rape charge
and convicted accused only of child abuse under R.A.
7610. The RTC sentenced him to 14 years, 8 months and
1 day to reclusion temporal. Accused appealed but the CA
found sufficient evidence for, and proceeded to convict
him of, rape sentencing him to reclusion perpetua.
Issue:
Considering that the RTC has virtually acquitted accused
of the charge of rape by finding him guilty of a lesser
offense, may the CA convict him of the crime?

1. new trial, or

Held:

2. retrial; or

Yes. When an accused appeals from the sentence of the
trial court, he waives his constitutional safeguard against
double jeopardy and throws the whole case open to the
review. The CA is then called upon to render such
judgment as the law and justice dictate, whether
favorable or unfavourable, and whether they are assigned
as errors or not. Such an appeal confers upon the CA full
jurisdiction and renders it competent to examine the
records, revise the judgment appealed from, increase the
penalty and cite the proper provision of the penal law.
Thus, there is no legal obstacle in meting out a conviction
for the crime of rape as originally charged in the
information.

4. It may dismiss the case

1. Findings on credibility of witnesses
People v. Panabang

373 SCRA 560
2002

January 16,

Issue:
On appeal, may the appellate court reverse the findings
of the trial court on the credibility of witnesses?
Issue:
No. Jurisprudence is too well settled that this particular
issue lies within the province of trial courts to resolve. It is
the trial court which is afforded the unique opportunity to
observe the witnesses on the stand. The manner
witnesses testify – the hesitant pause, the nervous voice,
the undertone, the beffuddled look, the honest gaze, the
modest blush, or the guilty blanch – is a significant
indicum in aptly assigning value to testimonial evidence.
The findings of a trial court on the credibility of witnesses
can only be disturbed upon a clear showing that it has

Sec. 12
Receiving Evidence
1. Power of the Court of Appeals:
1. To try cases and conduct hearings
2. To receive evidence, and
3. To perform any and all acts necessary:

78

1. to resolve factual issues in cases
falling within its original jurisdiction,
2. including the power to grant and
conduct
new
trials
or
further
proceedings
2. Duration of trials and hearings
1. Trials or
continuous,

hearings

in

the

CA

must

be

2. They must be completed within 3 months,
unless extended by the Chief Justice.

2. Penalty is from reclusion temporal to reclusion
perpetua
Mercado v. People

392 SCRA 678
26, 2002

November

Issue:
Is a penalty of 17 years and 4 months to 30 years
considered reclusion perpetua so that the CA should
refrain from entering judgment and certify the case to the
SC, pursuant to the last paragraph of Sec. 13, Rule 124,
of the 2000 Rules of Criminal Procedure?
Held:

Sec. 13
Certification or Appeal of Case to Supreme Court
1. Steps to be taken when CA finds that the penalty
of death should be imposed:
1. The CA shall render judgment,
2. It shall, however, refrain from making an entry
of judgment, and
3. It shall instead certify the case and elevate its
entire record to the SC for review
2. What appeal shall be included in the case
certified for review to the SC:
1. Where the judgment also imposes a lesser
penalty for offenses:
1. committed on the same occasion as
the more severe offense for which the
penalty is death, or
2. Which arose out of the same
occurrence that gave rise to the more
severe offense for which the penalty of
death is imposed, and
2. The accused appeals

No. Sec. 13, Rule 124 is applicable only when the penalty
imposed was reclusion perpetua or higher as a single
indivisible penalty, i.e., the penalty was at least reclusion
perpetua. Art. 27 of the Revised Penal Code states that
the penalty of reclusion perpetua shall be from 20 years
and 1 day to 40 years. While the 30-year period falls
within that range, reclusion perpetua nevertheless is a
single indivisible penalty which cannot be divided into
different periods. The 30-year period for reclusion
perpetua is only for purposes of successive service of
sentence under Art. 70 of the RPC.
More importantly, the crime committed is one penalized
under RA 6538 or The Anti-Carnapping Act of 1972 which
is a special law and not under the RPC. Unless otherwise
specified, if the special penal law imposes such penalty, it
is error to designate it with terms provided for in the RPC
since those terms apply only to the penalties imposed by
the RPC, and not to the penalty in special penal laws.
Generally, special laws provide their own specific
penalties for the offenses they punish, which penalties
are not taken from nor refer to those in the RPC.

Sec. 14
Motion for New Trial
1. When appellant may move for a new trial:

3. Effects where the CA imposes reclusion
perpetua, life imprisonment or a lesser penalty:

1. At any time after the appeal from the lower
court has been perfected, and

1. The CA shall render judgment,

2. Before the judgment of the CA convicting the
appellant becomes final

2. It shall enter judgment imposing such penalty,
and

2. Ground for new trial:

3. Such judgment may be appealed to the SC by
notice of appeal filed with the CA

Newly discovered evidence material to the
defense of the appellant

1. Where penalty is reclusion perpetua

Sec. 15

People v. Cruz

What the CA may do when Motion for New Trial is
Granted

203 SCRA 682

November 18, 1991

Issue:
What is the proper procedure to be followed when the CA
imposes a sentence of reclusion perpetua?

1. Conduct the hearing and receive evidence, or
2. Refer the trial to the court of origin

Held:
The CA shall render judgment but shall order the Division
Clerk of Court to desist from entering judgment (Revised
Internal Rules of the CA, Sec. 5, Rule 11) and after the
lapse of the period for filing a motion for reconsideration,
is ordered to elevate this case and its complete records to
the SC for review in accordance with Rule 124, Sec. 13 of
the Revised Rules on Criminal Procedure.

Sec. 16
Motion for Reconsideration
1. Requisites:
1. A motion for reconsideration shall be filed
within 15 days from notice of the decision or
final order of the CA, and

79

2. Copies of the motion shall be served upon the
adverse party, setting forth the grounds in
support thereof

The judgment of conviction of the lower court
shall be reversed and the accused shall be
acquitted

2. Rules:
1. The mittimus shall be stayed during the
pendency of the motion for reconsideration
2. No party shall be allowed a second motion for
reconsideration of a judgment or final order

1. Promulgation where appellant escapes
People v. Prades

293 SCRA 411

July 30, 1998

Question:
Where the person sentenced to death is a fugitive from
justice, and the Supreme Court affirms the death
sentence, how may it promulgate the judgment?

Rule 125 PROCEDURE IN THE SUPREME COURT

SECTION 1. Uniform Procedure. – Unless otherwise
provided by the Constitution or by law, the procedure in
the Supreme Court in original and in appealed cases shall
be the same as in the Court of Appeals. (1a)

SEC. 2. Review of decisions of the Court of Appeals. – The
procedure for the review by the Supreme Court of
decisions in criminal cases rendered by the Court of
Appeals shall be the same as in civil cases. (2a)

Procedure in the Supreme Court
1. Procedure in the SC
1. General Rule
The procedure in the SC in original and in
appealed cases shall be the same as in the CA
2. Exceptions – unless otherwise provided
by:

Answer:
The last paragraph of Sec. 6 of Rule 120 of the Revised
Rules on Criminal Procedure is a new provision which
provides for the promulgation of judgment in absentia
(Gupit, Jr., Rules of Criminal Procedure 362-363 [1986]).
The amendment was intended to obviate the situation in
the past where the judicial process could be subverted by
the accused jumping bail to frustrate the promulgation of
judgment. If, for any reason, it should be claimed that
said provision is intended to be the procedure in the trial
courts, the simple rejoinder is that there is no reason
why, on considerations of its rationale and procedural
expediency, the same should not apply to the same
factual situation in the appellate courts. In the Supreme
Court and the Court of Appeals, the judgment is
promulgated by merely filing the signed copy thereof with
the Clerk of Court who causes true copies of the same to
be served upon the parties, hence the appearance of the
accused is not even required there as his presence is
necessary only in the promulgation of the judgments of
trial courts. Thereafter, when the judgment of the
appellate court becomes executor, the records of the
case together with a certified copy of the appellate court
judgment are returned to the court a quo for execution of
the judgment.

1. The Constitution,
2. Law
2. Procedure for review of decisions of CA in
criminal cases:
It shall be the same as in civil cases

SEC. 3. Decision if opinion is equally divided. – When the
Supreme Court en banc is equally divided in opinion or
the necessary majority cannot be had on whether to
acquit the appellant, the case shall again be deliberated
upon and if no decision is reached after re-deliberation,
the judgment of conviction of lower court shall be
reversed and the accused acquitted. (3a)
Procedure when Opinion is Equally Divided
1. Situation – whether
appellant as when:

or

not

to

acquit

the

1. The SC en banc is equally divided in opinion,
or
2. The necessary majority cannot be had
2. Solution:
The case shall again be deliberated upon
3. If still no
deliberation:

decision

is

reached

after

re-

Q: When the penalty imposed by the RTC is perpetua for
example, and since the appeal is direct to the Supreme
Court, then what procedure will the SC follow? Or when
the case was decided by the CA and you appeal to the
SC, what procedure will the SC follow?
A: Under Section 1, “Unless otherwise provided by the
Constitution or by law, the procedure in the Supreme
Court in original and in appealed cases shall be the same
as in the Court of Appeals.” So there is no problem, you
can apply the previous rule – filing of brief, how many
copies – the same.

Now, let’s go to one interesting ISSUE: Can you file a
motion for new trial of a criminal case before the SC on
the ground of newly discovered evidence?
In the past, there seems to be conflicting rulings on that
issue. Like for example, if you go to the 1965 case of
GODUCO VS. CA (14 SCRA 282), the SC ruled that the SC
is not authorized to entertain a motion for reconsideration
and/or new trial on the ground of newly discovered
evidence because of the doctrine that the SC is not a trier
of facts – only questions of law are supposed to be raised
before the SC.
However, the Goduco ruling seems to be relaxed in other
cases subsequently to the case of Goduco. In the case of
HELMUTH, JR. VS. PEOPLE (112 SCRA 573 [1982]), and in
PEOPLE VS. AMPARADO (156 SCRA 712 [1987]), the SC

80

allowed the motion for new trial based on newly
discovered evidence.

and the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant
an additional period of fifteen (15) days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed fifteen
(15) days. (n)

In 1995, that issue came out again in the case of
CUENCA vs. COURT OF APPEALS

250 SCRA 485

HELD:
Although in “Goduco vs. CA” (14 SCRA 282 [1965]), this
Court ruled that it is not authorized to entertain a motion
for reconsideration and/or new trial predicated on
allegedly newly discovered evidence, the rule now
appears to have been relaxed, if not abandoned, in
subsequent cases like “Helmuth, Jr. vs. People” and
“People vs. Amparado.”
“In both cases, the Court, opting to brush aside
technicalities and despite the opposition of the Solicitor
General, granted new trial to the convicted accused
concerned on the basis of proposed testimonies or
affidavits of persons which the Court considered as newly
discovered and probably sufficient evidence to reverse
the judgment of conviction.”
So we follow the later ruling – relaxed. And I think that is
fair enough for the accused. All the doubts should be
resolved in favor of the accused.

Rule 42 PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF
APPEALS
Q:
CA?

What are the modes of appeal from RTC to the

A:
It’s either ORDINARY APPEAL
PETITION FOR REVIEW (Rule 42).

(Rule

41)

or

Rule 41 refers to an ordinary appeal from the RTC to the
CA – yung notice of appeal. Here, the RTC rendered a
decision pursuant to its ORIGINAL JURISDICTION.
Rule 42 (Petition for review) is the mode of appeal from
the RTC to the CA in cases decided by the RTC pursuant
to its APPELLATE JURISDICTION. So, the case here actually
originated in the MTC, then it was appealed to the RTC
under Rule 40. And now, from the RTC, you want to go to
the CA. Hence, the mode of appeal is not (Rule 41) Notice
of Appeal but RULE 42 – Petition for Review.

For the first time, there is now a rule governing petitions
for review from the RTC to the CA. Prior to July 1, 1997,
there was none. Although there were guidelines then – in
jurisprudence, decided cases and SC circulars.
Section 1. How appeal taken; time for filing. A party
desiring to appeal from a decision of the Regional
Trial Court rendered in the exercise of its appellate
jurisdiction may file a verified petition for review with
the Court of Appeals, paying at the same time to the
clerk of said court the corresponding docket and
other lawful fees, depositing the amount of P500.00
for costs, and furnishing the Regional Trial Court and
the adverse party with a copy of the petition. The
petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion for
new trial or reconsideration filed in due time after
judgment. Upon proper motion and the payment of
the full amount of the docket and other lawful fees

Under Section 1, a petition for review under Rule 42 must
be VERIFIED.
Q:

Where will you file your petition for review?

A:
You file it directly with the CA. Do not file it with
the trial court.

In Rule 41, where the appeal is deemed perfected by
simply filing a notice of appeal, you file your notice of
appeal with the RTC. Do not file it with the CA. But in Rule
42, where the appeal is by petition for review, you file
your petition directly with the CA. Do not file it with the
RTC.
Not only that. Of course, you have to pay the docket and
lawful fees plus P500 for costs. And you must furnish the
RTC and the adverse party with a copy of the petition.
That is a new requirement.

Q: What is the period to file a petition for review ?
A: The period to file a petition for review is 15 days from
receipt of the RTC judgment or from the order denying the
motion for reconsideration.
Q: What is the difference in period to file between Rule 41
and Rule 42 ?
A: In Rule 41, if your motion for reconsideration is denied,
you can still appeal within the remaining balance of the
15-day period. In Rule 42, the 15-day period starts all
over again because the law says “or of the denial.” So,
another fresh 15 days. This because it is more difficult to
prepare a petition for review. This is more timeconsuming than a simple notice of appeal. We’ll go to
examples:

PROBLEM: Let’s go back to RULE 41: You receive a copy of
the RTC decision on March 31. You file your motion for
reconsideration on April 10 – the 10th day. After two
weeks, you received order of the court denying the MFR.
Q: How many more days are left for you to file a notice of
appeal?
A: Six (6) days. Ang binilang mo, 1-9 days lang. The 10th
day is interrupted na. That’s true.

PROBLEM: We will go to the same problem (applying Rule
42): The case was decided by the MTC, appealed to the
RTC. And then in the RTC, you lost again. You receive a
copy of the decision on March 31. On April 10, you file a
motion for reconsideration. And then on April 20, you
receive the order denying the MFR.
Q: How many days more are left for you to file your
petition for review?
A: Kung sabihin mo 6 days from April 20 or April 26, that’s
FALSE! The answer is 15 days all over again. Look at the
law: “The petition shall be filed and served within fifteen

81

(15) days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion for new
trial or reconsideration.” Meaning, you count another 15
days from the denial. Umpisa na naman!

So the filing a motion for new trial or reconsideration in
Rule 42 does not only interrupt the running of the period
but it commences to run all over again. Unlike in Rule 41,
in ordinary appeal, where the filing of the motion for
reconsideration or new trial merely interrupts the running
of the period to appeal. And it commences to run again
from the time you are notified that your motion is denied.
See the difference?
Actually, if you are not serious in your study of appeal,
you will not see these distinctions. You will just assume
that the principles under Rule 41 and Rule 42 are the
same.

Q: Under Section 1, is the 15-day period to file petition for
review extendible?
A:
Under Rule 41, the 15-day period to file notice of
appeal is not extendible – no exceptions. But in Rule 42,
the 15-day period to file petition for review is EXTENDIBLE
according to the last sentence of Section 1, provided you
pay your docket and other lawful fees, the CA will grant
additional 15 days within which to file a petition for
review.
Q:
Where will you file your motion for extension of
time to file petition for review?
A:
You file your motion for extension to the CA. The
CA itself will grant the extension.
Q:

How many more days can the CA grant?

A:
The CA may grant another 15 days and no
further extension can be granted except for the most
compelling reasons. So, original extension is 15 days, and
a possible extension of 15 days = total 30 days.

These are technical points. And how many appealed
cases have been dismissed simply because these finer
provisions were not been observed by lawyers? I would
say 60% of all appeals are dismissed. Even in Davao,
majority of petitions are dismissed because nakulangan
ng piso sa docket fee, karami. I presume throughout the
country, the pattern is the same because the rules on
appeal are very technical and very strict. That’s why
there are lawyers in Manila, even in Davao, who do not
want to handle appealed cases. They only handle cases in
the trial court. Pag-akyat na, nasa CA na, petition for
certiorari, pasa na sa iba.
But there are also who have mastered the rules on
appeal. For the purpose of specialization, trial phase and
appeal phase. For purposes of the bar, you have to know
all the fields in laws. Once you pass the bar, diyan na
kayo mag-isip kung ano ang pipiliin ninyo—civil, criminal,
labor, etc. But for purposes of the bar, you cannot say
dito lang ako mag-aral sa Labor, wag na sa Civil Law.
Pwede ba yan? You cannot do that. Kaya nga sabi nila,
the people who know more about the law are those who
have just taken the bar.

Sec. 2. Form and contents. The petition shall be filed
in seven (7) legible copies, with the original copy
intended for the court being indicated as such by the

petitioner, and shall (a) state the full names of the
parties to the case, without impleading the lower
courts or judges thereof either as petitioners or
respondents; (b) indicate the specific material dates
showing that it was filed on time; (c) set forth
concisely a statement of the matters involved, the
issues raised, the specification of errors of fact or
law, or both, allegedly committed by the Regional
Trial Court, and the reasons or arguments relied upon
for the allowance of the appeal; (d) be accompanied
by clearly legible duplicate originals or true copies of
the judgments or final orders of both lower courts,
certified correct by the clerk of court of the Regional
Trial Court, the requisite number of plain copies
thereof and of the pleadings and other material
portions of the record as would support the
allegations of the petition.
The petitioner shall also submit together with the
petition a certification under oath that he has not
theretofore commenced any other action involving
the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or
proceeding, he must state the status of the same;
and if he should thereafter learn that a similar action
or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5)
days therefrom. (n)

Take note of Section 2. Do not implead the lower court or
the judge because nasanay na tayo na pati ‘yung judge
naging defendant or respondent na. We only do that in
Certiorari under Rule 65 in Special Civil Actions, but not
on appeal. This is the influence of Justice Feria because
he has penned many cases which has included the judge
as defendant or respondent. So, he said that in the case
of MWSS vs. CA [Aug. 25, 1986], hence we can see his
influence, siningit talaga niya iyan sa kaso na yon.
Now, as to the form [last paragraph], there has to be a
Certification of Non-Forum Shopping, failure to comply
with such would mean the dismissal of the case.

ORTIZ vs. COURT OF APPEALS
[1998]

299 SCRA 708

FACTS:
The certification was not signed by the Ortizes but by
their lawyer who has personal knowledge of the fact and
contended that it should be accepted as substantial
compliance with the rules.
HELD:
The certification was not proper. Strict observance of the
rule is required. In this case, no explanation was given.
“Regrettably, We find that substantial compliance will not
suffice in a matter involving strict compliance. The
attestation contained in the certification on non-forum
shopping requires personal knowledge by the party who
executed the same. To merit the Court’s consideration,
Ortizes here must show reasonable cause for failure to
personally sign the certification. The Ortizes must
convince the court that the outright dismissal of the
petition would defeat the administration of justice.
However, the Ortizes did not give any explanation to
warrant their exemption from the strict application of the

82

rule. Utter disregard of the rules cannot justly be
rationalized by harking on the policy of liberal
construction.”

Q:
Under paragraph [c], what issues can you raise
in the petition for review?
A:
Errors of fact, errors of law, or both – mixed
errors of fact or law.

Somebody asked this QUESTION: hindi ba kapag error of
law dapat sa SC yan? Hindi na dadaan sa CA? How do you
reconcile this with the Constitution? Actually, when the
law says decisions of the RTC appealable directly to the
SC, it was decided pursuant to its original jurisdiction. But
if it is decided pursuant to its appellate jurisdiction, the
appeal should be to the CA even on pure questions of law
without prejudice of going to the SC later on.

Sec. 3. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs,
proof of service of the petition, and the contents of
and the documents which should accompany the
petition shall be sufficient ground for the dismissal
thereof.

Section 3. If you fail to comply with the requirements,
tapos ang petition mo, dismiss!

Sec. 4. Action on the petition. The Court of Appeals
may require the respondent to file a comment on the
petition, not a motion to dismiss, within ten (10) days
from notice, or dismiss the petition if it finds the
same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised
therein
are
too
unsubstantial
to
require
consideration. (n)

Sec. 5. Contents of comment. The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such
material portions of the record referred to therein
together with other supporting papers and shall (a)
state whether or not he accepts the statement of
matters involved in the petition; (b) point out such
insufficiencies or inaccuracies as he believes exist in
petitioner’s statement of matters involved but
without repetition; and (c) state the reasons why the
petition should not be given due course. A copy
thereof shall be served on the petitioner. (n)

Sec. 6. Due course. If upon the filing of the comment
or such other pleadings as the court may allow or
require, or after the expiration of the period for the
filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds
prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or
modification of the appealed decision, it may
accordingly give due course to the petition. (n)

Q: When you file a petition for review from the RTC to the
CA, is the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may
or may not give due course to the petition unlike in
ordinary appeal. Yan ang kaibahan ng ordinary appeal
and petition for review.
In ordinary appeal under Rule 41, when you file notice of
appeal and you pay your docket fee, your appeal is
automatically entertained. At least it will be heard by the
CA. But in Rule 42, it is not the same. When you go there,
whether your petition for review will be given due course
or not even if you have paid the docket fee. Normally,
the CA will required you to comment and then chances
are after another month and after reading your petition
and your comment, the CA will refuse to give due course
to your petition, “Your petition is hereby dismissed!” So,
you must convince the CA na may merit baah!
Q: What happens when the petition for review is given
due course?
A: The parties will be required to submit their respective
memoranda.
Take note that the RTC is also given the power to issue
orders for the protection of the parties – the same as in
Section 8, paragraph [b].

Sec. 7. Elevation of record. Whenever the Court of
Appeals deems it necessary, it may order the clerk of
court of the Regional Trial Court to elevate the
original record of the case including the oral and
documentary evidence within fifteen (15) days from
notice. (n)

Q: Now, when is an appeal by petition for review deemed
perfected?
A: Section 8 [a]. Similar to Rule 41. The same principle:

Sec. 8. Perfection of appeal; effect thereof. (a) Upon
the timely filing of a petition for review and the
payment of the corresponding docket and other
lawful fees, the appeal is deemed perfected as to the
petitioner.
The Regional Trial Court loses jurisdiction over the
case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the
other parties.
However, before the Court of Appeals gives due
course to the petition, the Regional Trial Court may
issue orders for the protection and preservation of
the rights of the parties which do not involve any
matter
litigated
by
the
appeal,
approve
compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of the
appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the
judgment or final order unless the Court of Appeals,
the law, or these Rules shall provide otherwise. (n)

Q: Does the RTC have the power to act despite the fact
that the petition for review is already before the CA?
Suppose I lost in the MTC, and I also lost on appeal in the

83

RTC. I file a petition for review. What happens to the
decision? Can the decision be enforced?

4. All other criminal cases:


A: NO, it cannot be enforced yet because it is not yet
final. We still have to wait for the appeal to be dismissed
or to be entertained and denied later. Under paragraph
[b], the appeal shall stay the judgment or final order
UNLESS the CA, the law or these rules should provide
otherwise.

Where the penalty prescribed by law for the
offense charged, does not exceed:
1. 6 months imprisonment, or
2. a fine of P1,000.00, or
3. both;



Irrespective of:

Also, based on the opening clause of paragraph [b],
except in civil cases provided in the Rules on Summary
Procedure, any part thereafter appealed to the CA will not
stop the implementation of the RTC decision.

1. other imposable penalties, accessory
or otherwise, or

Under Section 21 of the Summary Rules, when a case is
started in the MTC under the Summary Procedure, and
appealed to the RTC and decided by the RTC, the decision
becomes immediately executory. Even if we file a petition
for review, it is executory. The only way to stop the RTC
from enforcing that judgment is to get a TRO or a writ of
preliminary injunction from the CA. That is the rule.

5. Offenses involving DAMAGE to PROPERTY through
CRIMINAL NEGLIGENCE where the imposable fine
does not exceed P10,000.00

Sec. 9. Submission for decision. If the petition is
given due course, the Court of Appeals may set the
case for oral argument or require the parties to
submit memoranda within a period of fifteen (15)
days from notice. The case shall be deemed
submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or
by the court itself. (n)

2. the civil liability arising therefrom

Criminal Cases NOT Covered by the Summary Rule
1. Offenses involving DAMAGE to PROPERTY through
CRIMINAL NEGLIGENCE where the imposable fine
exceeds P10,000.00
2. Criminal cases where the offense charged is
necessarily related to another criminal case subject
to the ordinary procedure

1. Cases covered by the Rule
Combate v. San Jose, Jr., 135 SCRA 693
1985

April 15,

Facts:
PROCEDURE IN THE FIRST LEVEL COURTS AND THE
RULES ON SUMMARY PROCEDURE

Rule 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS

SECTION 1. Uniform Procedure.
Procedure in the MTC

After accused was arraigned for theft of a fighting cock
worth P200, the judge issued an order stating that the
case is deemed submitted for decision. Thereafter, based
on affidavits and counter-affidavits submitted by the
complainant, accused and their witnesses, the court
convicted accused of theft and sentenced him to 6
months imprisonment.
Issue:
Is the procedure proper?

1. General Rule:

Held:

The procedure to be observed in the MTC shall be the
same as in the RTC
2. Exceptions – the procedure shall be different:
1. where a particular provision applies only to either
of said courts,
2. in criminal cases governed by the Summary Rule

PERTINENT PROVISIONS TAKEN FROM THE REVISED
RULE ON SUMMARY PROCEDURE

No. Summary Rule applies only to criminal cases where
the penalty prescribed for the offense charged does not
exceed 6 months imprisonment or a fine of P1,000, or
both. Theft is penalized with arresto mayor in its medium
period to prision correccional in its minimum period, or,
from 2 months and 1 day to 2 years and 4 months.
Clearly, the Summary Rule is inapplicable. But even if
applicable, the procedure adopted is irregular. Under Sec.
13, upon a plea of not guilty, trial shall proceed. The
affidavits submitted by the parties shall constitute the
direct testimonies of the witnesses who executed the
same, but they are subject to cross-examination.

I
APPLICABILITY

III

Sec. 1
Criminal Cases Covered by the Summary Rule
1. Violations of TRAFFIC laws, rules and regulations;

CRIMINAL CASES
Sec. 11

2. Violations of the RENTAL law;

How Criminal Cases are Commenced under the
Summary Rule

3. Violations of municipal or city ORDINANCES;

1. How commenced:

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1. General Rule:

1. shall be accompanied with copies of
the affidavits and other evidence
submitted by the prosecution, and

Either by complaint or information
2. Exception – It can only be commenced by
information in:

2. shall require the accused:

1. Metro Manila, and



to submit his counter-affidavit
and the affidavits of his
witnesses as well as any
evidence in his behalf, and



to serve copies thereof on the
complainant or prosecutor not
later than 10 days from receipt
of said order.

2. Chartered cities
3. Exception to exception:
If the crime CANNOT be prosecuted de oficio, the
information has to be signed by the offended party
2. What accompanies the complaint or information
– affidavits of the complainant and of his
witnesses:
1. Number of copies required:

2. The prosecution may file reply affidavits
within 10 days after receipt of the counter-affidavits of
the defense.

1. As many as the number of accused,
and

1. Order to submit counter-affidavit
2. 2 copies for the court’s files

2. Effect of failure to comply with the
requirement within 5 days from filing:
The case may be dismissed

1. Affidavit as ground for demurrer
Paulin v. Gimenez

217 SCRA 386
1993

January 21,

Issue:
May an accused file a demurrer to evidence based on the
argument that the affidavits submitted by the prosecution
under Sec. 11 of Summary Rule do not prove his guilt
beyond reasonable doubt?
Held:
No.Demurrer to evidence, which is not a prohibited
pleading under the Summary Rule, presupposes that the
prosecution had already rested its case (Sec. 15, Rule
119, Rules of Court). Hence, the motion is premature if
interposed at a time when the prosecution is still in the
process of presenting evidence. Submission of affidavits
to the court does not warrant the inference that the
prosecution had already finished presenting its evidence
because the affiants are still required to testify and affirm
the contents thereof; otherwise, these affidavits cannot
serve as competent evidence for the prosecution.

Paredes v. Manalo

244 SCRA 64
1995

May 10,

Issue:
May a judge be held administratively liable for not
ordering accused to submit a counter affidavit and for
issuing, instead, a warrant of arrest in a case falling under
the Summary Procedure?
Held:
Yes. Sec. 12 (b) of the Rule on Summary Procedure
provides that in all other cases where the accused is not
in custody, the court shall issue an order, accompanied
by copies of all the affidavits submitted by the
complainant, directing the defendants to appear and
submit their counter-affidavits and those of their
witnesses at a specified date. Such mandate is clear,
hence, judges have no other option but to obey.

2. Period to file counter-affidavit
Cariaga v. Anasario

396 SCRA 599
2003

February 3,

Issue:
May a judge be held administratively liable for admitting
counter-affidavits and affidavits of witnesses filed by
accused 130 days after he received the order for him to
submit his counter-affidavit within 10 days?
Held:

Sec. 12
Duty of the Court
1. If the case is commenced by complaint – the
court may:
1. Dismiss the case outright:
1. for being patently without basis or
merit,
2. on the basis of the complaint and the
affidavits
and
other
evidence
accompanying the same; and
2. If the case is commenced by information or not
dismissed pursuant to the above:

Yes. The Summary Rule was promulgated specifically to
achieve an expeditious and inexpensive determination of
cases. In allowing the submission of the counter-affidavits
130 days from notice, the judge violated Rule. Sec. 12(b)
which provides that the court shall issue an order “which
shall require the accused to submit his counter-affidavit
and the affidavits of his witnesses” x x x “not later than
10 days from receipt of said order.” Sec. 19(e) also
provides that a motion for extension to file affidavits is
prohibited.

Sec. 13
Arraignment and Trial

1. The court shall issue an order which:

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1. Upon consideration of the complaint or
information and the affidavits submitted by both
parties, the court may either:


Order the dismissal of the case – if it finds no
cause or ground to hold the accused for trial, or



Set the case for arraignment and trial

2. Effect if the court sets the case for arraignment
and trial:




If the accused is in custody for the crime
charged – he shall be arraigned immediately,
and
Upon arraignment, if the accused enters a plea
of guilty – he shall forthwith be sentenced

2. If the additional affidavits are
presented by the prosecution – the
accused may file his counter-affidavits and
serve the same on the prosecution within 3
days from such service
2. Cross-examination,
examination

redirect,

and

re-cross

1. A witness who executed an affidavit may be
subjected to oral crossexamination, redirect or re-cross examination,
2. Effect when affiant fails to testify:
1. His affidavit shall not be considered
as evidence for the party presenting the affidavit, but

Sec. 14
Preliminary Conference
1. Before conducting the trial, the court shall call
the parties to a preliminary conference;
2. What may
conference:

occur

during

the

preliminary



A stipulation of facts may be entered into, or



The propriety of allowing the accused to enter a
plea of guilty to a lesser offense may be
considered, or



Such other matters may be taken up to clarify
the issues and to ensure a speedy disposition of
the case.

3. Effect of admission made by the accused:
1. General Rule – It shall not be used against

him

to the court and served on the adverse
party not later than 3 days after the
termination of the preliminary conference;

2. The adverse party may utilize his
affidavit for any admissible purpose
3. Effect when a witness fails to previously
submit his affidavit as required by Sec. 12:
allowed to testify

1. General Rule – he shall not be

2. Exception – he shall be allowed to
testify in rebuttal or sur-rebuttal

1. Exception to the requirement of affidavit
Balayon, Jr. v. Ocampo

218 SCRA 13
1993

January 29,

Facts:

1. When it is reduced to writing, and

Sec. 15 of the Rule on Summary Procedure expressly
prohibits any witness from testifying during trial without
previously submitting his affidavit. Despite the
prohibition, the trial court allowed the Register of Deeds
who had no affidavit to testify in a case falling under the
said Rule.

2. When it is signed by the accused and

Issue:

2. Exception – When admission may be used
against the accused:

his counsel

Are there exceptions to the rule?

4. Effect of refusal or failure to stipulate during the
preliminary conference:
It shall not prejudice the accused

Sec. 15
Procedure of Trial

Held:
Yes. Even if a witness has not previously submitted
his/her affidavit, he may be called to testify in connection
with specific factual matter relevant to the issue. Thus, a
medical doctor whose medical certificate is among the
evidence on record may be called to testify. This also
applies to the Register of Deeds or Provincial Assessor in
connection with official documents issued by his office.

1. Direct examination


There is no oral direct examination,



The affidavits submitted by the parties shall
constitute the direct testimonies of the
witnesses who executed them, and



If a party wishes to present additional affidavits
or counter-affidavits as part of his direct
evidence, he shall so manifest during the
preliminary conference, stating the purpose
thereof:
1. If allowed by the court – the additional
affidavits of the prosecution or the counteraffidavits of the defense shall be submitted

Sec. 16
Arrest of Accused under the Summary Rule
1. General Rule:
The court shall not order the arrest of the
accused
2. Exception:
The court shall order the arrest of the accused
for failure to appear whenever required

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3. When person arrested under the exception may
be released:
1. If he posts bail, or
2. If he is released on recognizance by a responsible
citizen acceptable to the court

1. Issuance of arrest warrant
Carpio v. De Guzman

262 SCRA 615
1996

October 2,

May a judge be held administratively liable for deciding a
case for malicious mischief 1 year and 7 months after it
was submitted for decision?
Held:
Yes. Under Sec. 17 of the Summary Rule, judgment in the
criminal cases should have been promulgated not later
than 30 days after the termination of the trial. Clearly,
this delay is attributable to the judge for which he should
accordingly be held liable. Failure to decide a case within
the required period is not excusable and constitutes gross
inefficiency.

Facts:
On the day that a complaint for malicious mischief was
filed against accused, the judge issued a warrant of arrest
fixing bail at P1,200. Later, he revoked the order and
allowed accused to be placed on recognizance.

VI
COMMON PROVISIONS

Issue:
Should the judge be held administratively liable?

Sec. 18

Held:

1. Re-filing of dismissed case

Yes. Malicious mischief is covered by the Summary Rule.
The judge erred in immediately issuing a warrant of arrest
on the same day the complaint for malicious mischief was
filed, thereby completely disregarding Sec. 12 (b) and
Sec. 16. In not making a determination of whether or not
the case is governed by the Summary Rule he clearly
violated Sec. 2 thereof. In disregarding the rules and
settled jurisprudence, the judge showed gross ignorance,
albeit without any malice or corrupt motive. The lack of
malicious intent however can not completely free him
from liability.

Banares v. Balising

328 SCRA 36

March 13, 2000

Facts:
The MTC dismissed 16 cases of estafa without prejudice
for failure of complainant to refer them for conciliation to
the Lupong Tagapamayapa. Complainant referred the
cases to the Lupon and when no settlement was
achieved, he sought to have them reactivated.
Meanwhile, the 15-day period to move for reconsideration
or to appeal the order of dismissal has lapsed.
Issue:
Can a case provisionally dismissed under Sec. 18 of the
Summary Rule be reactivated by a mere motion to
revive?

Sec. 17
1. Nature of the rule
Cruz v. Pascual

244 SCA 111

May 12, 1995

Facts:
In a case falling under the Rule on Summary Procedure,
the judge reset the promulgation of the decision to allow
accused to submit a Guide-Note containing citations and
ruling related to the case. Consequently, the judge failed
to promulgate the decision within 30 days after trial.
Issue:
Is the 30-day period for deciding mandatory?
Held:
No. The Summary Rule was precisely enacted to achieve
an expeditious and inexpensive determination of cases.
Hence, Sec. 17 requires that judgment in the case must
be rendered within 30 days from termination of the trial.
While the procedural requirement is directory it subjects
the defaulting judge to administratively sanction for his
failure to observe the rule. But the decision rendered
beyond the period is valid.

Issue:

242 SCRA 710
1995

No. It should be re-filed. After the lapse of the 15-day
period, an order becomes final and executory and is
beyond the power or jurisdiction of the court which
rendered it to further amend or revoke. A final judgment
or order cannot be modified in any respect, even if the
modification sought is for the purpose of correcting an
erroneous conclusion by the court which rendered the
same. After the order of dismissal of a case without
prejudice has become final, and therefore becomes
outside the court’s power to amend and modify, a party
wishes to reinstate the case has no other remedy but to
file a new complaint. Even assuming the dismissal to be
without prejudice, the case could no longer be reinstated
or revived by mere motion in the original docketed action.

Sec. 19
Prohibited Documents, Motions, or Pleadings under
the Summary Rule
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of:

2. Administrative liability for delay
Asinas, Jr. v. Trinidad

Held:

March 27,

1. lack of jurisdiction over the subject matter, or
2. failure to refer to the Lupon for conciliation
when required
2. Motion for a bill of particulars;
3. Motion for:

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1. new trial, or
2. reconsideration of a judgment, or

exceed ten thousand pesos (P10,000.00). So, if it
is above P10,000 it is still MTC but you follow the
regular rules.

3. reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;

Q: What happens if there are 2 cases which are
interrelated or the charges are interrelated for they arose
from the same incident? Like for example: One case is
penalized by fine and another is penalized by 4 years
imprisonment. Once crime is covered by Summary Rules,
the other is covered by the regular rule. Can they be
mixed?
A: Where there is a joint trial of two criminal cases, one
under the summary rules and the other one is under the
regular rules, we follow the regular rules. Under the last
paragraph of Section of the Summary Rules, “These rules
shall not apply to a criminal case where the offense
charged is necessarily related to another criminal case
subject to another procedure.”

12. Interventions

Rule 123 simply says that the procedure to be observed
in the MTC, MTCC and MCTC shall be the same as in the
RTC. So, all the rules that we took up applies to both
courts EXCEPT:
1.) where a particular provision applies only to
either of said courts; and
2.) in criminal cases governed by the Revised Rules
on Summary Procedure.

In the first exception, there are certain provisions that are
applicable only to the RTC. Example is the provision on
bail – how to apply for bail. If you are denied bail, and you
are charged with a capital offense, there will be a hearing
to determine whether the evidence of guilt is strong or
not. Hindi man yan mag-apply sa MTC ba because the
crime carries the penalty of death which is exclusive only
for the RTC.

The second exception is, you do not apply the regular
rules if the case is governed by the Revised Rules on
Summary Procedure. And that is what we are going to
review now.

Q: What criminal cases should be tried based on the
Revised Rules on Summary Rules?
A: The following:

One of the important principles to remember here is the
case of Zaldivia and Reodica on when is the running of
period of prescription for a crime deemed interrupted.
The ruling in ZALDIVIA vs. REYES (211 SCRA 277) created
the impression that as a general rule, the filing of the
case in the prosecutor’s office is sufficient to interrupt the
running of the prescriptive period except when the case is
covered by the Rules on Summary Procedure. If it is any
crime, you file it in the fiscal’s office, the running of the
prescriptive period is interrupted. But if it is covered by
the Summary Rules, the period continues. It must be the
filing of the case in court which will interrupt. That is the
ruling in Zaldivia.
That impression in Zaldivia was clarified in the 1998 case
of REODICA vs. CA (292 SCRA 87) where the SC said that
even if the case is covered by the Summary Rules for as
long as it is a felony under the RPC, the filing in the
fiscal’s office is sufficient to interrupt the running of the
prescriptive period.
But according to Zaldivia, if it is covered by the Summary
rules, the filing in the fiscal’s office will not interrupt. But
according to the SC in the case of Reodica, NO! because
Zaldivia involves a violation of municipal or city
ordinance. Therefore, if it is a violation of an ordinance,
the filing in the fiscal’s office does not interrupt the
running of the prescriptive period because the law on
prescription for crimes punishable by a special law is
governed not by the RPC, but by Act 3326 which is very
clear that it is the filing in court which will interrupt the
prescriptive period for crimes punishable by special laws.
Pero kapag felony, we will still apply the general rule that
the filing in the fiscal’s office is sufficient to interrupt even
if such felony is covered by the Summary Rules.

1.) Violations of traffic laws, rules and regulations;
2.) Violations of the rental law;
3.) Violations of municipal or city ordinances; and

Now, let’s go to the provisions of the Summary Rules
concerning criminal cases.

4.) All other criminal cases where the penalty
prescribed by law for the offense charged does
not exceed six (6) months imprisonment or a
fine of one thousand pesos (P1,000.00) or both,
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising therefrom;

SEC. 11. How commenced. – The filing of criminal
cases falling within the scope of this Rule shall be
either by complaint or information. Provided,
however, that in Metropolitan Manila and in
chartered cities, such cases shall be commenced
only by information, except when the offense cannot
be prosecuted de oficio.

5.) however, that in offenses involving damage to
property through criminal negligence, said Rule
shall govern where the imposable fine does not

The complaint or information shall be accompanied
by the affidavits of the complainant and of his
witnesses in such number of copies as there are
accused plus two (2) copies for the court’s files. If

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this requirement is not complied with within five (5)
days from date of filing, the cases may be dismissed.

Q: How is a case covered by the Summary Rules
commenced?
A: Affidavit is included, affidavit of complainant, his
witnesses shall be included and then the court may
dismiss the case outright under Section 12 [a] and [b],
otherwise if there is a case, the accused will be sent a
copy of the affidavit and then he is given 10 days to
submit also his own affidavit.

Then there will be an arraignment under Section 13;
Preliminary conference under Section 14. And Section 15
is important – during the trial, there is NO DIRECT
EXAMINATION. The affidavit already serves as your direct
testimony. So puro cross-examination na lang. Diretso!
So, it is shortened ‘no? Rather than asking the witness
one by one to tell the story in the affidavit, yang affidavit
na mismo. That will serve as the direct testimony. Ikocross-examine na lang.
But there is an important rule here – a witness who has
not submitted any affidavit cannot testify. So in order to
qualify as a witness, you must
have submitted an
affidavit beforehand. The EXCEPTION is the 2nd
paragraph of Section 15 – except when the witness is a
rebuttal witness or a surrebuttal witness. This is because
how can you submit a rebuttal affidavit ahead? You do
not even know what to rebut. ANOTHER EXCEPTION is
cited by the SC in the case of
BALAYON, JR. vs. OCAMPO

218 SCRA 13

NOTE: Normally, in physical injuries cases, the medical
doctor is required to testify.
FACTS:
In this case, the doctor was subpoenaed to testify and the
defense objected because they said that the doctor has
no affidavit and under the rules, no person may testify
without submitting an affidavit.
HELD:
When the doctor is called upon to testify based on the
medical certificate, the rule as to the prior submission of
affidavit does not apply. This also applies to the Register
of Deeds or the Provincial Assessors in connection with
official documents issued by their office.

Now, if you have a surprise witness and you want to
introduce him because his testimony is very important,
the remedy is to file a motion to present additional
evidence. The last paragraph of Section 15 gives you the
authority to manifest during the preliminary conference
that you are presenting other witnesses, and you are now
submitting their affidavits in order that you will not be
barred from presenting them.

SEC. 16. Arrest of accused. The court shall not order
the arrest of the accused except for failure to appear
whenever required. Release of the person arrested
shall either be on bail or on recognizance by
responsible citizen acceptable to the court.

Section 16 is also important. As a rule, there is no warrant
of arrest if you are tried under the Summary Rules. You
are just notified about the case. However, if you are
notified about the case and you will not appear, that is
the time when you will be arrested because of “except
for failure to appear whenever required” in which case
you must post bail if you are under arrest or on
recognizance by a responsible citizen acceptable to the
court. This is one of the cases where recognizance is
allowed. But for as long as you appear in court, there is
no warrant to be issued.

Q: Now, what are the PROHIBITED documents, motions, or
pleadings under the Summary Rules?
A: The following (Under Section 19):
1.) Motion to quash except when your ground is
a.) lack of jurisdiction over the subject matter;
or
b.) failure to comply
Conciliation;

with

the

Barangay

2.) Motion for bill of particulars;
3.) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial; your remedy
here is appeal;
4.) Petition for relief from judgement;
5.) Motion for extension of time to file an affidavit;
6.) Memoranda;
7.) Petition for certiorari, mandamus, or prohibition
against any interlocutory orders issued by the
court;
8.) Motion to declare the defendant in default;
9.) Dilatory motions postponements;
10.) Reply;
11.) Third-party complaints;
12.) Intervention

C. Common procedures in First and Second Level
Courts Checklist I
Things to Do at the Arraignment of the Accused
1. The accused must be arraigned before the court
where the Complaint or Information was filed or
assigned for trial. The arraignment shall be made in
open court by the judge or clerk by furnishing the
accused with a copy of the Complaint or Information,
reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses
other than those named in the Complaint or
Information.
2. The accused must be present at the arraignment
and must personally enter his/her plea. Both
arraignment and plea shall be made of record, but
failure to do so shall not affect the validity of the
proceedings.
3. Before the reading of the Information, where the
accused is not assisted by counsel de oficio, inform
him/her of his/her right to counsel and inquire from
him/her if he/she desires to engage his/her own

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counsel. Unless the accused is allowed to defend
himself in person, and the accused is amenable to a
counsel de oficio, appoint a competent and
responsible counsel de oficio for him.
4. Whenever a counsel de oficio is appointed by the
court to assist the accused at the arraignment, give a
reasonable time for him to consult with the accused
as to his/her plea before proceeding with the
arraignment.
5. When the accused refuses to plead or makes a
conditional plea, enter a plea of not guilty for
him/her.
6. When the accused pleads guilty but presents
exculpatory
evidence,
consider
his/her
plea
withdrawn and enter a plea of not guilty for him/her.
7. Require the private offended party to appear at
the arraignment for purposes of plea-bargaining,
determination of civil liability, and other matters
requiring his/her 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.150 Unless the civil action has been
reserved, waived or otherwise instituted ahead, reset
the case for the reception of evidence to determine
the civil liability and the imposable penalty.
8. Plea of guilty to a lesser offense
At arraignment, allow the accused, with the consent
of the offended party and the prosecutor, to plead
guilty to a lesser offense which is necessarily
included in the offense charged. After arraignment
but before trial, the accused to withdraw plea of not
guilty and substitute to a guilty plea for said lesser
offense.
9. Plea of guilty to capital offense; reception of
evidence
When the accused pleads guilty to a capital offense,
conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of
his/her plea and (b) require the prosecution to prove
his/her guilt and the precise degree of culpability.
Allow the accused to present evidence on his/her
behalf.
10. Plea of guilty to non-capital offense; reception of
evidence, discretionary
When the accused pleads guilty to a non-capital
offense, allow the parties to adduce evidence to
determine the penalty to be imposed.

14. In other cases, unless a shorter period is provided
by special law or Supreme Court circular, conduct the
arraignment within thirty (30) days from the date the
court acquires jurisdiction over the person of the
accused. In computing the said period, exclude the
time of the pendency of a motion to quash or for a
bill of particulars or other causes justifying
suspension of the arraignment.
15. Upon motion of the accused, suspend his/her
arraignment on any of the following grounds:
15.1. 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, order his/her mental
examination
and,
if
necessary,
his/her
confinement for such purpose.
15.2. There exists a prejudicial question.
15.3. 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 of
suspension shall not exceed sixty (60) days
counted from the filing of the petition with the
reviewing office.
Note: In People v. Alicando, the Supreme Court held that a
conviction in capital offenses cannot rest alone on a plea
of guilt.
The trial court must require the prosecution to prove the
guilt of the appellant and the precise degree of his/her
culpability beyond reasonable doubt.
EXECUTION OF JUDGMENT

Note that there are two aspects in a criminal case, the
criminal aspect and civil aspect. So, one thing to
determine first is which aspect of the judgment has
become final and executor.
Note that as far as the criminal aspect is concerned, the
judgment can be one of acquittal, dismissal on the merits,
dismissal based on a technicality or conviction.
The first two are immediately final and executory, while
the other two are not. Hence for a judgment of dismissal
not based on the merits or conviction to be come final,
there should be failure to appeal from the original
judgment. In case there was an appeal, there should be
failure to further appeal.
As regards the civil aspect, Rule 39 on Execution of
Judgment under the Rules of Civil Procedure applies.

11. Withdrawal of improvident plea of guilty
At any time before the judgment of conviction
becomes final, permit an improvident plea of guilty
be withdrawn and be substituted by a plea of not
guilty.
12. If a ―Not Guilty‖ plea is entered, schedule the
pre-trial of the case with due notice to the offended
party/arresting officer.
13. If the accused is under preventive detention, the
pre-trial conference of the case within ten (10) days
after arraignment.

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