PRELIMINARY CHAPTER INTRODUCTION CRIMINAL PROCEDURE Criminal Procedure is the method prescribed by law for the apprehension and

prosecution of persons accused of any criminal offense, and for their punishment, in case of conviction. Criminal procedure is concerned with the procedural steps through which a criminal case passes, commencing with the initial investigation of a crime and concluding with the unconditional release of the offender. It is a generic term used to describe the network of laws and rules which govern the procedural administration of criminal justice, e.g., laws and court rules (e.g.. Rules of Criminal Procedure) governing arrest, search and seizure, bail, etc. SOURCES OF CRIMINAL PROCEDURE 1. 2. 3. 4. 5. 6. The Spanish Law of Criminal Procedure. General Orders No. 58, dated April 23, 1900. Amendatory Acts passed by the Philippine Commission. The various quasi acts, the Philippine Bill of 1902, the Jones Law of 1916, the Tydings-McDuffie Law and the Constitution of the Philippines. The Rules of Court of 1940 and the 1964, 1985 and 1988 Rules on Criminal Procedure. Various Republic Acts, e.g., R.A. No. 240; New Rule 127, providing for attachment; R.A. No. 296, Judiciary Act of 1948 denning criminal jurisdiction, and B.P. Big. 129 as amended by R.A. No. 7691; R.A. No. 8249, Creating the Sandiganbayan; R.A. No. 8349, The Speedy Trial Act of 1998. Presidential Decrees, e.g., P.D. No. 911; R.A. No. 732, regulating the authority of Prosecuting Fiscals to Conduct Preliminary Investigation. Constitution Rights of an Accused under Article III. The Civil Code. (Arts. 32, 33 and 34) Judicial decisions applying or interpreting our laws which form part of our legal system. R.A. No. 8493, The Speedy Trial Act of 1998. Circulars. The Revised Rules on Criminal Procedure.

Resort is made to secret inquiry to discover the culprit and violence and torture were often employed to extract a confession. The Judge was not limited to the evidence brought before him but could proceed with his own inquiry which was not confrontative. 2. Accusatorial. The accusation is exercised by every citizen or by a member of the group to which the injured party belongs. As the action is a combat between the parties, the supposed offender has the right to be confronted by his accuser. The battle in the form of a public trial is judged by a magistrate who renders the verdict. 3. The Mixed System. This is a combination of the inquisitorial and the accusatorial systems. Thus, the examination of defendants and other persons before the filing of the complaint or information may be inquisitorial. This is particularly true in the Preliminary examination, for the purpose of issuing a warrant of arrest. Under the 1985 Rules on Criminal Procedure, a criminal action may be instituted by complaint of the offended party or by information filed by the Fiscal and once the criminal action is filed in court, the accused has the right to confront and cross-examine his accuser. It has, however, been held that:
"As a general rule, a court proceeding in our judicial set-up is accusatorial or adversary and not inquisitorial in nature. It contemplates two contending parties before the court which hears them impartially and renders judgment only after trial." 4

"Criminal due process requires that the accused must be proceeded against under the orderly processes of law. In all criminal cases, the judge should follow the step-by-step procedure required by the rules. The reason for this is to assure that the State makes no mistake in taking the life or liberty except that of the guilty."

CRIMINAL JURISDICTION OF COURTS "CRIMINAL JURISDICTION" is the authority to hear and try a particular offense and impose the punishment for it. The general rule is that the jurisdiction of a court is determined by: (1) the geographical limits of the territory over which it presides, and (2) the actions (civil and criminal), it is empowered to hear and decide. ELEMENTS OF JURISDICTION IN CRIMINAL CASES The elements of jurisdiction of a trial court over the subject matter in a criminal case are: a. b. The nature of the offense and/or penalty attached thereto; and The fact that the offense has been committed within the territorial jurisdiction of the court.

The non-concurrence of either of these two elements may be challenged by an accused at any stage of the proceedings in the court below or on appeal. Failing in one of them, a judgment of conviction is null and void. REQUISITES FOR JURISDICTION VALID EXERCISE OF CRIMINAL

7. 8. 9. 10. 11. 12. 13.

IMPORTANCE OF DUE PROCESS IN CRIMINAL CASES "All trial courts, the Sandiganbayan included, are reminded that they should take all the necessary measures guaranteeing procedural due process from the inception of custodial investigation up to rendition of judgment. They are not to turn a blind eye to procedural irregularities which transpired before the criminal case reached the court. The validity and sufficiency of the information are important."

Three important requisites must be present before a court can validly exercise its power to hear and try a case: a. b. c. It must have jurisdiction over the subject matter; It must have jurisdiction over the territory where the offense was committed; It must have jurisdiction over the person of the accused.

THREE SYSTEMS OF CRIMINAL PROCEDURE 1. Inquisitorial. The detection and prosecution of offenders are not left to the initiative of private parties but to the officials and agents of the law.

JURISDICTION OVER THE SUBJECT MATTER is the power to hear and determine cases of the general class to which the

proceedings in question belong.8 JURISDICTION IS CONFERRED BY LAW The Philippine Courts have no common law jurisdiction or power, but only those expressly conferred by the Constitution and statutes and those necessarily implied to make the express powers effective. STATUTE IN FORCE AT COMMENCEMENT OF ACTIONS DETERMINES JURISDICTION Jurisdiction over the subject matter is determined by the statute in force at the time of the commencement of the action and not at the time of its commission even if the penalty that may be imposed at the time of its commission is less and does not fall under the court's jurisdiction. Jurisdiction is conferred only by the Constitution or by-law. It cannot be fixed by the will of the parties nor can it be acquired or diminished by any act of the parties. In determining whether a case lies within or outside the jurisdiction of a court, reference to the applicable statute on the matter is indispensable. It is a settled rule that jurisdiction of a court is determined by the statute in force at the time of commencement of action. The principle, however, is different, where jurisdiction is dependent on the nature of the position of the accused at the time of the commission of the offense.
In Subido v. Sandiganbayan, jurisdiction was determined by the position of the accused at the time of the commission of the offense. The crime of arbitrary detention was allegedly committed on June 25, 1992 when accused was a Commissioner of the BID. R.A. No. 7975 took effect on May 6,1995 vesting the Sandiganbayan with exclusive jurisdiction for crimes committed by public officers corresponding to Grade 27. The information was filed on 28 July 1995 when accused was already a private citizen. He claimed that under the law at the time of the commencement of the action, the Sandiganbayan has no jurisdiction over him for the offense charged. HELD: Republic Act No. 7975 (amended by R.A. No. 8249) as regards the Sandiganbayan's jurisdiction, mode of appeal and other proce- dural matters, was held as a procedural law and may validly be given retroactive effect, there being no impairment of contractual or vested rights. It was held that the Sandiganbayan has no jurisdiction over an anti-graft

case allegedly committed by public officers who at the time of the filing of the information falls below Grade 27.

JURISDICTION COMPLAINT

DETERMINED

BY

ALLEGATIONS

OF

otherwise. Jurisdiction over criminal cases cannot be conferred by consent. Even if a party fails to file a motion to quash, he may still question the jurisdiction of the court later on. Moreover, these objections may be raised or considered motu proprio by the court at any stage of the proceedings or on appeal. e. If under the law the court has no jurisdiction over the subject matter, it cannot take cognizance of the case, notwithstanding the silence or acquiescence of the accused. The exception is when there is estoppel by laches to bar attacks on jurisdiction. f. Estoppel by Laches to Question Jurisdiction in Criminal Cases Generally, the doctrine of estoppel does not apply as against the people in criminal prosecutions. The principle, however, earlier laid down in the case of Tijam v. Sibonghanoy2'' which bars a party from attacking the jurisdiction of the court by reason of estoppel by laches have been extended to criminal cases. See, however, Fuzume v. Court of'Appeals, holding that accused or the court may motu proprio raise lack of jurisdiction over the subject matter in a criminal case for the first time on Appeal. Immunity from suit is a jurisdictional question. g. Principle that there is no estoppel against State The settled rule is that the State is not estopped by the mistakes of its officers and employees. Indeed, in Cruz, Jr. v. Court of Appeals, the Court declared:
. . . Estoppel does not lie against the government because of the supposedly mistaken acts or omissions of its agents. As we declared in People v. Castaneda, "there is the long familiar rule that erroneous application and enforcement of the law by public officers do not block subsequent correct application of the statute and that the government is never estopped by mistake or error on the part of its agents."

The averments in the complaint or information characterizes the crime to be prosecuted and the court before which it must be tried. In order to determine the jurisdiction of the court in criminal cases, the complaint must be examined for the purpose of ascertaining whether or not the facts set out therein and the punishment provided for by law for such facts fall within the jurisdiction of the court where the complaint is filed. The jurisdiction of courts in criminal cases is determined by the allegations of the complaint or information and not by the findings the court may make after the trial. PRINCIPLES OF JURISDICTION a. The general rule is that the jurisdiction of a court is determined by: (1) the geographical limits of the territory over which it presides, and (2) the action (civil and criminal) it is empowered to hear and decide. As the question of jurisdiction is always of importance, if the prosecution fails to prove that fact, the court may always permit it to present additional evidence to show the fact that the crime was committed within its jurisdiction. The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. d. Lack of jurisdiction over the subject matter of an action is fatal and an objection based upon this ground may be interposed at any stage of the proceedings. Jurisdiction is conferred only by the sovereign authority which organizes the courts. When jurisdiction over an offense has not been conferred by law, the accused cannot confer it by express waiver or

b.

c.

The Court also held in Chua v. Court of Appeals:

. . . While ordinarily, certiorari is unavailing where the appeal period has lapsed, there are exceptions. Among them are:

(a) (b) (c) (d)

when public welfare and the advancement of public policy dictates; when the broader interest of justice so requires; when the writs issued are null and void; or when the questioned order amounts to an oppressive exercise of judicial authority... .

officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Big. 129, as amended, was applied to the pending criminal case in the Sandiganbayan. The previous law vests jurisdiction in the RTC where none of the principal accused are occupying positions corresponding to Salary Grade 27. The term "principal" was deleted so that under the amendment, if an accomplice belongs to Salary Grade 27, then jurisdiction is with the Sandiganbayan even if none of the principals belong to a lower salary grade. The amendment was applied retroactively. JURISDICTION OVER OFFENSE a. In criminal cases, the court must examine the complaint for the purpose of ascertaining whether or not the facts set out and the punishment provided by law for such act, fall within the jurisdiction of the court. If the criminal act charged is punished by law with a penalty which pertains to the jurisdiction of the court, it falls under the original jurisdiction thereof, although the penalty it may have to impose in accordance with the evidence is below that which falls under its jurisdiction. b. Where a complaint is presented in court charging the defendant with murder, at the close of the trial, the court finds that the crime committed was assault and battery only. Justices of the peace have original jurisdiction over the offense of assault and battery, the complaint, however, gave the Court of First Instance jurisdiction over the alleged crime. It retains jurisdiction for the purpose of imposing the penalty provided for by law for the crime proved to have been committed. c. Where the court has jurisdiction of the subject matter and the person of the accused, it is not necessary, in order to maintain that jurisdiction, to decide the case correctly. The Court has jurisdiction to decide wrongly as well as rightly. d. It is not a jurisdictional defect and one which deprives the court of its authority to try, convict and pass sentence, that h.

a criminal action is brought in the name of the City of Manila instead of the united States. The fact constitutes a mere defect or error curable at any stage of the action, it does not deprive the court of the power to pronounce a valid judgment and impose a valid sentence, and it cannot be made the basis of a writ of habeas corpus e. The court having jurisdiction of the offense has also jurisdiction to determine the disposition of the instrument used in the commission of the crime. As an accessory penalty, the instrument used in the commission of the offense shall be forfeited unless it belongs to a third person who is not liable for the offense which the instrument was used to commit. It is the duty of the court therefore to dispose of the same upon the application of any person interested. The person to whom the instrument belongs has a right to take his proceeding to the court having jurisdiction of the offense for the purpose of having his rights in the premises determined. f. Where a court is given jurisdiction over a specific class of crimes, that jurisdiction will continue whether that class be enlarged or diminished or whether the penalty for a violation be increased or diminished. Where the military authorities had jurisdiction over the person of a military officer at the time of the alleged offenses, the jurisdiction having been vested, it is retained up to the end of the proceedings. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. Subject matter of jurisdiction in criminal cases is determined by the authority of the court to impose the penalty imposable under the applicable statute given the allegation of a criminal information. In People v. Purisima, the Court stressed that:
"x x x. In criminal prosecutions, it is settled that the jurisdiction of the court is not determined by what may be meted out to the offender after trial, or even by the result of the evidence that would be presented at the trial, but by the extent of the penalty which the law imposes for the misdemeanor, crime or violation charged in the complaint.

h.

A conviction or acquittal before a court having no jurisdiction is, like all proceedings in the case, absolutely void, and is therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. ADHERENCE OF JURISDICTION Once jurisdiction is vested in the court, it is retained up to the end of the litigation. Ordinarily, jurisdiction once acquired is not affected by subsequent legislative enactment placing jurisdiction in another tribunal. It remains with the court until the case is finally terminated. Thus, it has been held that the Sandiganbayan or the courts as the case may be, cannot be divested of jurisdiction over cases filed before them by reason ofR.A. No. 7975. They retain their jurisdiction until the end of the litigation. EXCEPTION TO PRINCIPLE OF ADHERENCE Where, however, the subsequent statute expressly provides, or is construed to the effect that it is applicable to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of the statute. R.A. No. 7975 by virtue of Section 7 belongs to the exception rather than a rule. The provision is transitory in nature and expresses the legislature's intention to apply its provisions on jurisdiction to criminal cases in which trial has not began in the Sandiganbayan. To this extent R.A. No. 7975 is retroactive. In another case, the court held that although the Sandiganbayan has jurisdiction at the time the charge was filed, it lost jurisdiction upon the enactment of R.A. No. 7975 because he falls below the rank of full colonel, and trial has not yet begun. In Lacson v. Executive Secretary, the amendment in R.A. No. 8249 that in cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP

g.

If the facts recited in the complaint and the punishment provided for by law are sufficient to show that the court in which the complaint is presented has jurisdiction, that court must assume jurisdiction

answer for any crime committed by him except in the jurisdiction where it was committed. Said rule is- based on the legal provision which prescribes the essential requisites of a good complaint or information, one of which is the allegation that the crime was committed within the jurisdiction of the court where the complaint or information is filed and that said court has authority to try it. As was said in the case of United States v. Cunanan, the jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases is limited to certain well-defined territory, so that they can not take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory. Jurisdiction of the Courts in criminal cases rests upon a different footing from that in civil cases. In criminal cases, the people of the State is a party. The interests of the public require that, to secure the best results and effects in the punishment of crime, it is necessary to prosecute and punish the criminal in the very place, as near as may be, where he committed his crime. As a result, it has been the uniform legislation, both in statutes and in constitution, that the venue of a criminal action must be laid in the place where the crime was committed. While the laws here do not specifically and in terms require it, it is the established custom and the uniform holding that criminal prosecutions must be brought and conducted, except in cases especially provided by law, in the province where the crime is committed. Judicial divisions or districts (now regions) are always fixed by law so that any changes or alterations of the same can only be effected by express legislation and not by mere inference or deduction. Proceedings in a criminal case before a judge acting without jurisdiction are void, but this fact will not preclude the filing of a new complaint upon the dismissal of the former proceeding. WHEN PLACE OF CRIME NOT ALLEGED Where the place of the commission of the offense was not specifically charged, the place may be shown by the evidence. Thus, the insufficiency of the complaint charging adultery without stating the place where the acts of adultery were committed, or that the accused knew the woman was married at

The same rule was set forth and amplified in People v. Buissan in the following terms:
xxx [i]n criminal prosecutions, jurisdiction of the court is not determined by what may be meted out to the offender after trialor even by the result of the evidence that would be presented during the trial but by the extent of the penalty which the law imposes, together with other legal obligations, on the basis of the facts as recited in the complaint or information constitutive of the offense charged, for once jurisdiction is acquired by the court in which the information is filed, it is retained regardless of whether or not the evidence proves a lesser offense than that charged in the information.

the time of cohabitation, assigned as error as the conviction thereon amounted to a conviction without informing the defendants of the nature and character of the offense, and besides equivalent to a conviction without due process of law. No such question having been raised before final judgment in the trial court, but every ingredient of the crime having been established in the evidence, there was no error committed upon which to base a reversal of conviction. ACTION BY COURT WHERE IT HAS NO JURISDICTION When the record discloses that the crime as alleged in the complaint was not committed in the province wherein the trial was had, and the accused was not arrested in that province and defendant had not fled therefrom, the Court of First Instance of that province has no jurisdiction to impose sentence. In such cases, if the court has reasonable ground to believe that the crime has been committed, the accused should be remanded to the court of proper jurisdiction for trial. It has been held that where the court has no jurisdiction at the time of the filing of the complaint, instead of ordering the transfer, the court should dismiss the case. However, in Republic v. Asuncion, and Cunanan v. Arcco, the Court sanctioned the transfer of the cases from the RTC for lack of jurisdiction to the Sandiganbayan, while in Lacson v. The Executive Secretary, the Court (en bane) ordered the transfer of the cases from the Sandiganbayan for lack of jurisdiction to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over said cases. In Cuyco u. Sandiganbayan, the court ordered the Sandiganbayan to dismiss the case for lack of jurisdiction, but informed the Ombudsman that it may re-file the cases with the court of proper jurisdiction, the RTC of Zamboanga City. In his concurring opinion, Chief Justice Davide, Jr., asked to REFER the case to the RTC instead of dismissing the cases. It is believed that under its supervisory authority, the Supreme Court and even the Court of Appeals may properly refer the case to the court of proper jurisdiction. Courts of the first and second level is without authority to order the transfer. If the said courts believe that it has no jurisdiction over the subject matter, its jurisdiction is limited to simply dismissing the case.

Thus, it may be that after trial, a penalty lesser than the maximum imposable under the statute is proper under the specific facts and circumstances proven at the trial. In such a case, that lesser penalty may be imposed by the trial court (provided it has subject-matter jurisdiction under the rule above referred to) even if the reduced penalty otherwise falls within the exclusive jurisdiction of an inferior court. TERRITORIAL JURISDICTION It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction. In criminal proceedings, the rule is that one can not be held to

JURISDICTION OF CRIMINAL CASES

MUNICIPAL

TRIAL

COURTS

IN

of the amount of the fine. As a consequence, the Regional Trial Courts have no more original jurisdiction over offenses committed by public officers and employees in relation to their office, where the offense is punishable by more than four (4) years and two (2) months up to six (6) years. (4) The provisions of Section 32(2) of B.P. Big. 129, as amended by R.A. No. 7691, apply only to offenses punishable by imprisonment or fine, or both, in which cases the amount of the fine is disregarded in determining the jurisdiction of the court. However, in cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court in accordance with the original provisions of Section 32(2) of B.P. Big. 129 which fixed the original exclusive jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts over offenses punishable with a fine of not more than Four thousand pesos. If the amount of the fine exceeds Four thousand pesos, the Regional Trial Courts shall have jurisdiction, including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed Six thousand pesos. However, this rule does not apply to offenses involving damage to property through criminal negligence which are under the exclusive original jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, irrespective of the amount of the imposable fine." The opening Paragraph of Section 32 excepts cases falling within the exclusive original jurisdiction of Regional Trial Court and of the Sandiganbayan from the expanded jurisdiction of the aforementioned courts even if the offense is punishable with imprisonment not exceeding six (6) years. In other words, where jurisdiction is determined by the nature of the offense and not by the penalty, jurisdiction should remain in the Regional Trial Court or the Sandiganbayan. For example: 1) Libel is punishable by prision corrreccional in its minimum and maximum period or fine or bail. (Article 5)

Republic Act No. 7691 which took effect on April 15, 1994 amended B.P. Big. 129, otherwise known as "The Judiciary Reorganization Act of 1980" by Expanding the Jurisdiction of the aforementioned courts as follows: Exclusive Original Jurisdiction xxx SEC. 2. Section 32 of the same law is hereby amended to read as follows:
"SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of the Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however. That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof."

354, R.P.C.) Article 360, however, of the same code as amended, provides that the criminal and civil action for damages in cases of written defamation shall be filed in the Court of First Instance, etc." 2) Jurisdiction over Election Offenses

SEC. 268. Jurisdiction of courts. The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases.

3) ARTICLE X Jurisdiction Over Dangerous Drugs Cases

SEC. 39. Jurisdiction. The Court of First Instance, Circuit Criminal Court, and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, That in cities or provinces where there are .Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under sixteen years of age.

4)

Cases which falls under the original and exclusive jurisdiction of the Sandiganbayan regardless of the imposable penalty. Thus, the aforementioned exception refers not only to Section 20 ofB.P. Big. 129 providing for the jurisdiction of Regional Trial Courts in criminal cases, but also to other laws which specifically lodged in Regional Trial Courts' exclusive jurisdiction over specific criminal cases, e.g., (a) Article 360 of the Revised Penal Code, as amended by R.A. Nos. 1289 and 4363 on written defamation or libel; (b) Decree on Intellectual Property (P.D. No. 49, as amended), which vests upon Courts of First Instance exclusive jurisdiction over the cases therein mentioned regardless of the imposable penalty; and (c) more appropriately, Section 39 of R.A. No. 6425, as amended by P.D. No. 44, which vests on Courts of First Instance, Circuit Criminal Courts, and the Juvenile and Domestic Relations Courts concurrent exclusive original jurisdiction over all cases involving violations of said Act. Cases which fall under the original and exclusive jurisdiction of Family Courts under Republic Act No. 8369 known as the Family Courts Act of 1997.

Interpreting the foregoing law, the Supreme Court issued Administrative Circular 09-94 as follows:
Subject: Guidelines in the implementation of Republic Act No. 7691, Entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, Amending For the Purpose Batas Pambansa Big. 129, otherwise known as the Judiciary Reorganization Act of 1980."

For the guidance of the Bench and the Bar, the following guidelines are to be followed in the implementation of Republic Act No. 7691, entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Big. 129, otherwise known as the 'Judiciary Reorganization Act of 1980'": (3) The criminal jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts under Section 32(2) ofB.P. Big. 129, as amended by R.A. No. 7691, has been increased to cover offenses punishable with imprisonment not exceeding six (6) years irrespective

CIVIL LIABILITY IRRESPECTIVE OF KIND OR NATURE Where the offense charged is within its exclusive competence by reason of the penalty prescribed therefor, an inferior court shall have jurisdiction to try and decide the case irrespective of the kind and nature of the civil liability arising from the said offense. The jurisdiction of the court is also determined by the amount of the fine and imprisonment. But an indemnification or a reparation or a restitution is merely an incident of the crime. The jurisdiction of the courts is not fixed by the incident but by the nature of the crime itself. Legally speaking, the nature of the crime is determined by the punishment imposed. Thus, it has been held that the jurisdiction of courts of justice of the peace over crimes is determined exclusively by the amount of the fine and imprisonment imposed by the law, that is by the legal nature of the crime, and in no matter and to no extent whatever by the civil incidents which accrue to the person injured by the commission of said crime. Thus, an inferior court has jurisdiction over a case of simple seduction defined and penalized under Article 338 of the Revised Penal Code, as amended, with arresto mayor, regardless of the civil liability that may be imposed under Article 345 of the same code. This supersedes U.S. v. Barredo. Other Imposable Penalties The additional penalty for habitual delinquency is not considered in determining which court shall have jurisdiction over a criminal case because such delinquency is not a crime. SPECIAL JURISDICTION IN CERTAIN CASES In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or application for bail in criminal cases in the province or city where the absent Regional Trial Judges sit. CRIMINAL JURISDICTION OF REGIONAL TRIAL COURTS Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance by the latter.

JURISDICTION OVER COMPLEX CRIMES Jurisdiction over the whole complex crime must logically be lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. A complex crime must be prosecuted integrally, as it were, and not split into its component offenses and the latter made the subject of multiple informations possibly brought in different courts. ORIGINAL AND EXCLUSIVE JURISDICTION OF FAMILY COURTS Republic Act No. 8369 established Family Courts granting them exclusive original jurisdiction over child and family cases namely:
a. Criminal case where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age, or where one or more of the victim is a minor at the time of the com mission of the offense; Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to Presidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code." i. j. Cases against minors cognizable under the Dangerous Drugs Acts, as amended; Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and Cases of domestic violence against: 1) Women which are acts of gender based violence that result, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuses battering or threats and coercion which violates a woman's personhood, integrity and freedom of movement; and Children which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development.

REPUBLIC ACT NO. 8249 The jurisdiction of the Sandiganbayan under Presidential Decree No. 1606, as amended by Executive Order No. 184, has been changed by REPUBLIC ACT NO. 8249 "AN ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THAT PURPOSE PRESIDENTIAL DECREE NO. 1606." Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: "a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (I) Official of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: "(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; "(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; "(c) Officials of the diplomatic service occupying the position of consul and higher; "(d) Philippine army and air force colonels, captains, and all officers of higher rank; naval

k)

2)

"(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; "(f) City and provincial prosecutors and their assistants, and official and prosecutors in the Office of the Ombudsman and special prosecutor; and "(g) Presidents, directors or trustees, or managers of

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties.

JURISDICTION OF THE SANDIGANBAYAN CHANGED BY

government-owned or -controlled corporations, state universities or educational institutions or foundations; "(2) Members of Congress and officials thereof classified as Grade '2' and up under the Compensation and Position Classification Act of 1989; "(3) Members of the judiciary without prejudice to the provisions of the Constitution; "(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and "(5) All other national and local officials classified as Grade '27' and higher under the Compensation and Position Classification Act of 1989. "b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. "c. Civil and criminal case filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to Salary Grade '27' or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Big. 129, as amended. "The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. "The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which be filed under Executive Order Nos. 1, 2, 14 and 14A, issued in 1986:

Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. "In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees including those employed in government-owned or -controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them." CONSEQUENCE OF AMENDMENTS As a consequence of these amendments, the Sandiganbayan partly lost its exclusive original jurisdiction in cases involving: a. b. c. Violations of R.A. No. 3019; R.A. No. 1379; and Chapter II, Section 2, Title VII of the Revised Penal Code. (Article 210, Direct Bribery; Article 211, Indirect Bribery; andArticle 212, Corruption of Public Officials).

non before the Sandiganbayan can validly take cognizance of the case. DETERMINATION OF JURISDICTION Republic Act No. 8249 collated the provisions on the exclusive jurisdiction of the Sandiganbayan. Its original jurisdiction as a trial court was made to depend not on the penalty imposed by the law on crimes and offenses within its jurisdiction but on the rank and salary grade of the acused government officials and employees. To determine the jurisdiction of the Sandiganbayan in cases involving violations of Rep. Act No. 3019, the reckoning period is the time of the commission if the offense. Includes officials specifically mentioned even if below Grade 27 The specific inclusion of the officials from (a) to (g) constitutes an exception to the general qualification relating to officials of the executive branch as "occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Classification Act of 1989. In other words, violation of Rep. Act No. 3019 committed by officials specifically enumerated in (a) to (g) regardless of their salary grade. All other officials below grade 27 shall be under the jurisdiction of the proper trial courts. PURPOSES OF DETERMINING THE GOVERNMENT OFFICIALS THAT FALL WITHIN THE ORIGINAL JURISDICTION OF THE SANDIGANBAYAN IN CASES INVOLVING VIOLATIONS OF REP. ACT NO. 3019 AND CHAPTER II, SECTION 2, TITLE VII OF THE REVISED PENAL CODE BRIBERY (ART. 210), INDIRECT BRIBERY (ART. 211) AND CORRUPTION OF PUBLIC OFFICIALS (ART. 212) Rep. Act No. 7975 has grouped them into five categories, to wit: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher; (2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions

The Sandiganbayan retains jurisdiction only in cases where the accused are those enumerated in subsection (a) Section 4 above and, generally, national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989. Moreover, its jurisdiction over other offenses or felonies committed by public officials and employees in relation to their office is no longer determined by the prescribed penalty, viz., that which is higher than prision correccional or imprisonment for six years or a fine ofP6,000.00; it is enough that they are committed by those public officials and employees enumerated in subsection a, Section 4 above. However, it retains its exclusive original jurisdiction over civil and criminal cases filed pursuant to or in connection with E.O. No. I. JURISDICTION OFFICERS OF SANDIGANBAYAN OVER PUBLIC

Prior to the amendment (R.A. No. 7975), jurisdiction of the Sandiganbayan for felonies other than violation of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, embrace all other offenses provided, the offense was committed in relation to public office and the prescribed penalty is more than six years. Under the present law, both the nature of the offense and the positions occupied by the accused are the conditions sine qua

of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989. The Sandiganbayan has original jurisdiction over criminal cases involving crimes and felonies under the first classification: "a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense. The exclusive jurisdiction of the Sandiganbayan over those public officers holding positions classified as Grade 27 refers to Violations ofR.A. No. 3019, Act No. 1379 and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code referring to Malfeasance and Misfeasance in office (1) (2) (3) (4) Art. 204, knowingly rendering an unjust judgment; Art. 205, Judgment rendered thru negligence; Art. 206, Unjust Interlocutory Order; Art. 207, Malicious Delay in the administration of justice; (5) Art. 208, Prosecution of offenses; negligence and tolerance; (6) Art. 209, Betrayal of trust by an attorney or solicitor Revelation of secrets; (7) Art. 210, Direct Bribery; (8) Art. 211, Indirect Bribery; (9) Art. 211-A, Qualified Bribery; (10)Art. 212, Corruption of public officials. which does not include the crime of Rebellion or coup d'etat. With respect to other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees mentioned in subsection (a) in relation to their office. In other words, the case would fall under the Sandiganbayan if the crime is committed "in relation to public office except the crimes of rebellion and coup d'etat. Sandiganbayan has jurisdiction even if Co-Accused in Malversation below Grade 27

Two of the felonies that belong to the first classification are malversation defined and penalized by Article 217 of the Revised Penal Code, and the illegal use of public funds or property defined and penalized by Article 220 of the same Code. The public office of the accused Municipal Mayor Virginio E. Villamor is a constituent element of malversation and illegal use of public funds or property. Accused mayor's position is classified as SG 27. Since the Amended Informations alleged that the petitioner conspired with her co-accused, the municipal mayor, in committing the said felonies, the fact that her position as municipal accountant is classified as SG 24 and as such is not an accountable officer is of no moment; the Sandiganbayan still has exclusive original jurisdiction over the cases lodged against her. It must be stressed that a public officer who is not in charge of public funds or property by virtue of her official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an accountable public officer to commit malversation or illegal use of public funds or property. The determinative fact is that the position of her co-accused, the municipal mayor, is classified as SG 27, and under the last paragraph of Section 2 of Rep. Act No. 7975, if the position of one of the principal accused is classified as SG 27, the Sandiganbayan has original and exclusive jurisdiction over the offense. WHEN IS AN OFFENSE DEEMED COMMITTED IN RELATION TO PUBLIC OFFICE The office must be a constituent element of the crime as defined in the statute. The test is whether the offense cannot exist without the office. DETERMINATION OF WHEN CRIME IS IN RELATION TO PUBLIC OFFICE How to Determine whether information sufficiently alleges that the crime was committed in relation to public office There are two ways of determining whether or not the information charges that the offense was committed in relation to public office. The statement that the "committed in relation to public office" is

not sufficient. a. Where the public office of the accused is by statute a constituent element of the crime charged, there is no need for the Prosecutor to state in the Information specific factual allegations of the intimacy between the office and the crime charged, or that the accused committed the crime in the performance of his duties. Thus, the public office of the accused Municipal Mayor Virginio E. Villamor is a constituent element of malversation and illegal use of public funds or property. b. When specific factual allegations of crime committed in relation to public office required These are offenses or felonies which are intimately connected with the public office and are perpetrated by the public officer or employee while in the performance of his official functions, through improper or irregular conduct. Where the office is not a constituent element of the offense charged there must be specific allegation of facts that it was intimately related to the discharge of their official duties. The Sandiganbayan likewise has original jurisdiction over criminal cases involving crimes or felonies committed by the public officers and employees enumerated in Section (a)(l) to (5) under the second classification if the Information contains specific factual allegations showing the intimate connection between the offense charged and the public office of the accused, and the discharge of his official duties or functions whether improper or irregular. The requirement is not complied with if the Information merely alleges that the accused committed the crime charged in relation to his office because such allegation is merely a conclusion of law. In the absence of any allegation that the offense was committed in relation to the office of the accused or was necessarily connected with the discharge of their functions, the regional court, not the Sandiganbayan, has jurisdiction to hear and decide the case. Thus, for jurisdiction over crimes committed by public officers in relation to public office to fall within jurisdiction of the Sandiganbayan the intimate relation between the offense charged and the discharge of official duties must be alleged in the information. There must be specific factual averments of this relation, except when the office is a constituent element of the offense charged.

For instance, although public office is not an element of the crime of murder in abstract, where the offense therein charged in the information is intimately connected with the respective offices of the accused and was perpetuated while they were in the performance, though irregular or improper, of their officials functions and had no personal motive to commit the crime and would not have committed it had they not held their public office and merely obeyed the instruc-don of their superior officer, the offense may be said to have been committed in relation to their office. As explained by the Court
"In People v. Montejo, where the amended information alleged Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandos consisting of regular policemen and x x x special policemen, appointed and provided by him with pistols and high power guns and then established a camp x x x at Tipo-tipo which is under his command x x x supervision and control where his codefendants were stationed, entertained criminal complaints and conducted the corresponding investigations, as well as assumed the authority to arrest and detain persons without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his codefendants arrested and maltreated Awalin Tebag who died in consequence thereof.

position. The difference between Montilla and Montejo is that, whereas in the former (Montilla), the murder was committed outside office hours and for personal or political motives, the victim in the latter case (Montejo) was killed while he was undergoing custodial investigation in the police substation. The crime in Montejo would not have been committed were it not for the fact that the accused were actually discharging official functions at the time. Thus, the offense charged in Montejo was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office; besides, the accused had no personal motive in committing the crime; thus, there was an intimate connection between the offense and the office of the accused. Upon the otherhand, although the information alleged that the principal accused committed the crime in relation to their public office, but there is no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers, or does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody, the offense charged in the subject criminal cases is plain murder and therefore, within the exclusive original jurisdiction of the Regional Trial Court, and not the Sandiganbayan.
"Thus, the informations do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation but merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose, they shot and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial.

Thus, in the case of Bartolome, there is no showing that the alleged falsification was committed by the accused, if at all, as a consequence of, and while they were discharging official functions. The information does not allege that there was an intimate connection between the discharge of official duties and of the offense. The case did not come under the jurisdiction of the Sandiganbayan. For purposes, however, of acquisition of jurisdiction by the Sandiganbayan, the requirement imposed by R.A. No. 8249 that the offense be "committed in relation" to the offender's office is entirely distinct from the concept of taking advantage of one's position as provided under Articles 171 and 172 of the Revised Penal Code. 2. The crime of rape with homicide is not an offense committed in relation to the office of the petitioner. In Montilla v. Hilario, this Court, described the "offense committed in relation to the office" as follows:
"The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator, being a public functionary, took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises, not from the allegations but on the proof; not from the fact that the criminals are public officials but from the manner of the cornmission of the crime. There is no direct relation between the commission of the crime of rape with homicide and the petitioner's office as municipal mayor because public office is not an essential element of the crime charged. The offense can stand independently of the office.

The court held that the offense charged was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime, thus, there was an intimate connection between the offense and the office of the accused. In the afore-cited case of People v. Montejo, it is noteworthy that the phrase committed in relation to public office does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Where however, from the allegations of the information, it does not appear that the official positions of the accused were connected with the offenses charged, it cannot be said that they are charged of an offense committed in relation to their official

Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, not the Sandiganbayan. 1. Falsification of an official document is not within the jurisdiction of the Sandiganbayan unless committed in relation to the public office of the public officer.

Moreover, it is not even alleged in the information that the commission of the crime charged was intimately connected with the performance of the petitioner's official functions to make it fall under the exception laid down in People v. Montejo."

3.

Acts of Lasciviousness filed against an MTC Judge committed against Court personnel whom he is authorized to recommend appointment under Supreme Court circular and used his official position in committing the act complained of, the crime was held as having been committed in relation to his office.

While public office is not an element of the crime of lasciviousness he could not have committed the crime charged were it not for the fact that as Presiding Judge of the MTCC branch, he has authority to recommend her appointment as bookbinder. The crime committed as alleged in the amended information are intimately connected with his office. A mere allegation that the crime was committed in relation to public office is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegation in the information that would indicate the close intimacy between the discharge of the accuser's official duties and the commission of the of the offense charged, in order to qualify the crime as having been committed in relation to public office. 4. Where the killing committed by a PNP officer was committed while in the course of trying to restore local public order which had been breached by a fistfight between the victim and two other individuals, the killing was committed in relation to the accused's public office. Where the amended information contained allegations that the accused, petitioner took advantage of his official functions as municipal mayor ofMeycauayan, Bulacan when he committed the crime of grave threats as defined in Article 282 of the Revised Penal Code against complainant Simeon G. Legaspi, a municipal councilor; and. The Office of the Special Prosecutor charged petitioner with aiming a gun at and threatening to kill Legaspi during a public hearing, after the latter had rendered a privilege speech critical of petitioner's administration. Clearly, based on such allegations, the crime charged is intimately connected with the discharge of petitioner's official functions. If he was not the mayor, he would not have been irritated or angered by whatever private complainant might have said during said privilege speech." Thus, based on the allegations in the information, the Sandiganbayan correctly assumed jurisdiction over the case. 6. The same principles were stressed in Soller v. Sandiganbayan, where the Municipal Mayor and others were charged in the Sandiganbayan with Obstruction of

Apprehension and Prosecution of Criminal Offenses as denned and penalized under P.D. No. 1829 for tampering with the autopsy and police reports to mislead the investigation of the fatal shootout of the victim. But aside from noting the absence of specific factual allegations, that the offense was committed in relation to public office, the court found that the preparation of police and autopsy reports and the presentation and gathering of evidence in the investigation of criminal cases are not among the duties and functions and the broad responsibility to maintain peace and order cannot be basis for construing that that the criminal acts imputed to the mayor. Of tampering and falsifying the autopsy reports, were committed in relation to his office. 7. Where the Informations allege that petitioner, then a "public officer," committed the crimes of murder and frustrated murder "in relation to his office," i.e., as "Community Environment and Natural Resources Officer" of the DENR. It is apparent from this allegation that the offenses charged are intimately connected with petitioner's office and were perpetrated while he was in the performance of his official functions. In its Resolution dated August 25,1992, the Sandiganbayan held that petitioner was "on duty up in order to prevent incursions into the forest and wooded area," and that petitioner, as a guard, was "precisely furnished with a firearm in order to resist entry by force or intimidation." Indeed, if petitioner was not on duty at the DENR checkpoint on January 14, 1990, he would not have had the bloody encounter with Mayor Cortez and his men. Thus, based on the allegations in the Informations, the Sandiganbayan correctly assumed jurisdiction over the cases. JURISDICTION EXPLAINED NOT DETERMINED BY ALLEGATIONS

office. This was a mistake that misled the prosecution in subsequent cases. Thus, in Republic v. Asuncion, the information did not disclose that the offense of homicide charged against the accused who was a member of the PNP was committed in relation to the office of the accused, but the trial court, during the progress of the trial dismissed the case without prejudice for refiling in the Sandiganbayan. The Supreme Court en bane speaking thru Justice Davide, Jr., surmised that the absence of an allegation that the crime was committed "in relation to his office" was because of the erroneous doctrine in Deloso u. Domingo which conveyed the impression that this was not necessary. Hence, the court a quo was directed to conduct a preliminary hearing to determine whether the crime charged was committed by the respondents in relation to his office. If it be determined in the affirmative, then it shall order the transfer of the case to the Sandiganbayan which shall forthwith docket and proceed with the case as if the same were originally filed with it. Otherwise, the court a quo shall proceed with the case. In Cunanan u. Arceo, the information for murder against a PNP contained no averment that the offense charged was in relation to his public office, hence, the court proceeded to trial and after ooth parties have presented their evidence declared the case submitted for decision. The trial court applied Republic v. Asuncion, and conducted a hearing solely to ascertain if accused had committed the offense charged in relation to his office, and found that he did. The trial court accordingly dismissed the case for lack of jurisdiction for refiling with the Sandiganbayan pursuant to the "Asuncion Ruling." In a further order, the trial judge modified the dismissal by ordering instead the transfer of the case to the Sandiganbayan. The Supreme Court speaking thru the Third Division did not consider the absence of an allegation in the information that the offense was committed in relation to his office. The Court stated:

5.

In Republic u. Asuncion, the Court stressed that the foregoing requisites must be alleged in the information for the Sandiganbayan to have jurisdiction. It was, however, held in one case that under Section 4, P.D. No. 1606, when the penalty prescribed by law is higher than Prision Correccional, the Sandiganbayan has jurisdiction, without stating that the offense was committed in relation to the offender's

10

It is firmly settled that jurisdiction over the offense charged is a matter that is conferred by law. Whenever the above two (2) requi sites are present, jurisdiction over the offense is vested in the Sandiganbayan. This is true even though the information originally Sled before the RTC did not aver that the accused public officer public had committed the offense charged in relation to his office. In other words, the absence in the old information filed before the RTC af an allegation that petitioner Cunanan has committed the offense in relation to his office is immaterial insofar as determination of the locus of jurisdiction is concerned. Indeed, it may be recalled that bhe Asuncion ruling involved a situation where the information similarly did not contain an averment that the accused public officer had committed the offense charged while carrying out his official duties. It was precisely to address the situation that the Supreme Court in Asuncion fashioned the rule directing the conduct of a preliminary ar separate hearing by a trial court to determine the presence or absence of that jurisdictional element.

On the contrary, Asuncion stressed that the public officers or employees committed the crime in relation to their office must, however be alleged in the information for the Sandiganbayan to have jurisdiction over a case under Section 4(a)(2). This allegation is necessary because of the unbending rule that jurisdiction is determined by the allegations of the information. In the subsequent case of People v. Magallanes, where the accused were charged with kidnapping for ransom with murder wherein some of the accused were members of the PNP, the information does not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely alleged that the accused, for the purpose of extracting and extorting money, abducted, kidnapped and detained the two victims, and failing in their common purpose, they shot and killed the said victims. The Supreme Court thru the First Division speaking thru Justice Davide, Jr., also the ponente in the Asuncion case stated: "For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial." (Italics Supplied) The court held that the allegations of "taking advantage of his position or their respective positions" incorporated in the informations is not sufficient to bring the offenses within the definition of "offenses commited in relation to public office." In Montilla u. Hilario, such an allegation was merely considered as an allegation of an aggravating circumstance and not as one that qualifies the crime as having been committed in relation to public office. Also, in Bartolome u. People of the Philippines, despite the allegations that the accused public official committed the crime of falsification of official document by "taking advantage of their official positions," the court held that the Sandiganbayan had no jurisdiction over the case, because "the information (did) not allege that there was an intimate connection between the discharge of official duties and the commissison of the offense." Accordingly, for lack of an allegation in the informations that the offenses were committed in relation to the office of the accused. PNP officer or were intimately connected with the discharge of the functions of the accused, the subject cases come within the jurisdiction of the Regional Trial Court and not of the Sandiganbayan.

This was also the ruling in Lacson v. Executive Secretary. It should, however, be noted that under Republic Act No. 7975, jurisdiction of the Sandiganbayan over other offenses or felonies committed by public officials and employees in relation to their office is no longer determined by the prescribed penalty. It is enough that theyare committed by those public officials and employees enumerated in subsection a, Section 4, R.A. No. 8249. It is when the erring public official is not among the enumerated functionaries, that jurisdiction by courts other than the Sandiganbayan is to be determined by the penalty prescribed by law. EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER a. PCGG Under Section 2 of Executive Order No. 14, the Sandiganbayan has exclusive and original jurisdiction over all cases regarding the "funds, moneys, assets and properties illegally acquired by former President Ferdinand E. Marcos x x x civil or criminal, including incidents arising from such cases. The decision of the Sandiganbayan is subject to review on certiorari exclusively by the Supreme Court." In the exercise of its functions, the PCGG is a co-equal body with the Regional Trial Courts and co-equal bodies have no power to control the other. The Regional Trial Courts and the Court of Appeals have no jurisdiction over the PCGG in the exercise of its powers under the applicable Executive Orders and Section 26, Article XVIII of the 1987 Constitution and, therefore, may not interfere with and restrain or set aside the orders and actions of the PCGG acting for and in behalf of said Commission. b. Exclusive Jurisdiction over Cases Filed by PCGG The exclusive jurisdiction of the Sandiganbayan over civil and criminal cases filed by PCGG, as well as incidents arising from, incidental or related to such cases is subject to review on certiorari exclusively by the Supreme Court. The fact of sequestration alone does not, however, automatically oust the RTC of jurisdiction to decide upon the question of ownership (of the subject gaming and office equipment of the Philippine Casino Operators Corporation).

The RTC's initial assumption of jurisdiction over the offense charged in this case did not, therefore, prevent it from subsequently declaring itself to be without jurisdiction, lack of jurisdiction having become apparent from subsequent proceedings in that case. JURISDICTION MUST BE DETERMINED BY ALLEGATIONS IN THE COMPLAINT The foregoing pronouncements is not in accord with the wellsettled rule that jurisdiction is determined by the allegations of the complaint and not by the finding of the court after trial. The Asuncion case did not hold that the absence of an allegation of the offense having been committed "in relation to his office" as immaterial, but justified the absence thereof as having been caused by the erroneous ruling in the case of Deloso v. Domingo. The court did not fashion the rule directing the conduct of a preliminary or separate hearing to determine the absence or presence of that jurisdictional element. It did so only because of the peculiar circumstance that the omission may have been due to inadvertence in view of the misleading pronouncement in Deloso. Asuncion has not, however, departed from the rule that jurisdiction is to be determined by the allegations of the complaint.

11

The PCGG must be a party to the suit in order that the Sandiganbayan's exclusive jurisdiction may be correctly invoked. But where the PCGG is not a party to the case, and the complaint is solely between PAGCOR and PCOC, the RTC has jurisdiction under Sec. 19 ofB.P. Big. 129 over PAGCOR's action for recovery of personal property, even if said property was under sequestration by the PCGG.

for the recovery of ill-gotten wealth. The Court ruled that sequestered assets and corporations are legally and technically in custodia legis, under the administration of the PCGG. Executive Order No. 2 specifically prohibits the transfer, conveyance, encumbrance, or otherwise depletion or concealment of such assets and properties, under pain of penalties prescribed by law. Thus, an action which can result in the deterioration and disappearance of the sequestered assets cannot be allowed, unless there is a final adjudication and disposition of the issue as to whether these assets are ill-gotten or not, since it may result in damage or prejudice to the Republic of the Philippines. The Sandiganbayan has jurisdiction to annul a judgment of partition by the RTC involving a sequestration related property. d. Jurisdiction Does Not Include Questions of Business Judgment The Court, however, ruled that Sandiganbayan is without jurisdiction where the matter does not really seek to question the propriety of the sequestration by the PCGG or any matter incidental to or arising out of such sequestration but deals mainly with what is a business judgment. The Court pointed to Holiday Inn (Phils.), Inc. u. Sandiganbayan, where the issue related to a management agreement terminated by the Board of Directors of a sequestered corporation, 2/3 of the members of such board being composed by PCGG nominees. The action for intervention was lodged Sandiganbayan in the main sequestration case. with the

A rule of thumb might be thus: if the PCGG can be properly impleaded on a cause of action asserted before this Court as a distinct entity, then this Court would generally exercise jurisdiction; otherwise, it would not, because, then the 'PCGG character' of the act or omission in question may, at best, be only incidental. After all, the presence of PCGG representatives in sequestered companies does not automatically tear down the corporate veil that distinguishes the corporation from its officers, directors or stockholders. Corporate officers whether nominated by the PCGG or not act, insofar as third parties are concerned, are (sic) corporate officers. Contracts entered into by the San Miguel Corporation, for example, in connection with its poultry operations and the cancellations thereof, are not PCGG activities which would justify the invocation of this Court's jurisdiction, even if the contract or suit were unanimously approved by its board of directors where PCGG representatives sit.

c.

Sandiganbayan jurisdiction includes all incidents from, incidental to or related to principal causes of action In subsequent cases jointly decided on August 10, 1988, the Court pointed out that: "(the) exclusive jurisdiction conferred on the Sandiganbayan would evidently extend not only to the principal causes of action, i.e., the recovery of alleged ill-gotten wealth, but also to 'all incidents arising from, incidental to, or related to, such cases,' such as the dispute over the sale of shares, the propriety of the issuance of ancillary writs or provisional remedies relative thereto, the sequestration thereof, which may not be made the subject of separate actions or proceedings in another forum." Likewise, in the case of Republic v. Sandiganbayan, the Court ruled that while the PCGG is ordinarily allowed a free hand in the exercise of its administrative or executive function, the Sandiganbayan is empowered to determine in an appropriate case, if in the exercise of such functions, the PCGG has gravely abused its discretion or has overstepped the boundaries of the power conferred upon it by law. The Court stated:
Any act or order transgressing the parameter of the objectives for which the PCGG was created, if tainted with abuse of discretion, is subject to a remedial action by the Sandiganbayan, the court vested with exclusive and original jurisdiction over cases involving the PCGG including cases filed by those who challenge PCGG's acts or orders Settled is the rule that when a law confers jurisdiction upon a court, it is deemed to have all the incidental powers necessary to render the exercise of such jurisdiction effective

This Court added:

The subject matter of petitioner's proposed complaint-in-intervention involves basically, an interpretation of contract, i.e., whether or not the right of first refusal could and/or should have been observed. The question of whether or not the sequestered property was lawfully acquired by Roberto S. Benedicto has no bearing on the legality of the termination of the management contract by NRHDC's Board of Directors. The two are independent and unrelated issues and resolution of which may proceed independently of each other. . . . (T)he Sandiganbayan correctly denied jurisdiction over the proposed complaint-in-intervention. The original and exclusive jurisdiction given to the Sandiganbayan over PCGG cases pertains to (a) cases filed by the PCGG, pursuant to the exercise of its power under Executive Order Nos. 1, 2 and 14, as amended by the Office of the President, and Article XVIII, Section 26 of the Constitution, i.e., where the principal cause of action is the recovery of ill-gotten wealth, as well as all incidents arising from, incidental to or related to such cases and (b) cases filed by those who wish to question or challenge the commission's acts or orders in such cases.

The petitioners in that case averred that the Sandiganbayan has jurisdiction over the action since the action to terminate the management agreement bears the imprimatur of the PCGG nominees sitting at the Board, making PCGG the real party-in-interest. The Resolution of the Sandiganbayan, which was upheld by the Supreme Court, ruled on the contrary, thus:
This Court is of the view that its jurisdiction refers to acts of the PCGG acting as such whether alone or with other persons, natural or juridical, and not generally where PCGG representatives act as part of another juridical person or entity.

JURISDICTION OVER FORFEITURE CASES After reviewing the legislative history of the Sandiganbayan and the Office of the Ombudsman, the Court declared that
"Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original jurisdiction in all cases involving violations of R.A. No. 3019, R.A. No. 1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions whether in a permanent, acting or interim capacity, at the time

In PCGG v. Sandiganbayan, the Court stated that there is a need to vigorously guard sequestered assets and preserve them pending resolution of the sequestration case before the Sandiganbayan, considering the paramount public policy

12

of the commission of the offense. It is a civil procreedings in rem but criminal in nature

JURISDICTION OVER MONEY LAUNDERING CASES The Anti money-laundering law provides for two kinds of cases which are independent of each other. The criminal action for anti-money laundering offense (Sec. 4) and the civil forfeiture proceedings (Sec. 12) which may be filed separately and proceed independently of the criminal prosecution. a. The Criminal Action Republic Act No. 9160 as amended (The Anti-Money Laundering Act of 2001) defines Money Laundering Offense. Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: (a) Any person knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. (c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so. JURISDICTION OF MONEY LAUNDERING CASES The regional trial courts shall have jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan. The foregoing section apparently refers to the criminal offense of anti-money laundering as defined in Section 4 of the law. a. The Civil Forfeiture Proceedings b.

The law provided that in petitions for civil forfeiture the Revised Rules of Court shall apply. In consequence thereof, the Supreme Court issued the RULE OF PROCEDURE IN CASES OF CIVIL FORFEITURE, ASSET PRESERVATION, AND FREEZING OF MONETARY INSTRUMENT, PROPERTY, OR PROCEEDS REPRESENTING, INVOLVING, OR RELATING TO AN UNLAWFUL ACTIVITY OR MONEY LAUNDERING OFFENSE UNDER REPUBLIC ACT NO. 9160, AS AMENDED. The Rule expressly provided that The Rule shall govern all proceedings for civil forfeiture, asset preservation and freezing of monetary instrument, property, or proceeds representing, involving, or relating to an unlawful activity or a money laundering offense under Republic Act No. 9160, as amended. The Revised Rules of Court shall apply suppletorily when not inconsistent with the provisions of this special Rule. Title II of the Rule provided only for Civil Forfeiture in the Regional Trial Court. Thus
SEC.

The law created an Anti-Money Laundering Council (AMLC) tasked with implementing the law, was empowered x x x (3) to institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General; (4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; (5) to initiate investigations of covered transactions, money laundering activities and other violations of this Act. CIVIL AND CRIMINAL FORFEITURE DISTINGUISHED It is to be noted that under the Anti-Money Laundering Act, so far as Civil Forfeiture is concerned it is the AMLC that is authorized to institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General with the Regional Trial Court. There is no similar authority to file such cases with the Sandiganbayan. It is only in criminal cases that the AMLC is authorized to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses. But unlike Civil Forfeiture under R.A. No. 1379 which specifically authorized its filing by the Ombudsman or thru the Office of Special Prosecutor in the Sandiganbayan. No similar authority have been granted the Ombudsman with respect to civil forfeiture under the Anti-money Laundering Law. JURISDICTION OF SANDIGANBAYAN TO BE DISTINGUISHED FROM JURISDICTION OF OMBUDSMAN OVER PUBLIC OFFICERS a. The Jurisdiction of the Ombudsman to investigate and prosecute Public Officers for any illegal act or omission is not exclusive but a shared concurrent authority in respect of the offense charged. The Ombudsman's primary power to investigate dependent on the cases cognizable by Sandiganbayan. is

2. Party to Institute Proceedings. The Republic of the Philippines, through the Anti-Money Laundering Council, represented by the Office of the Solicitor General, may institute actions for civil forfeiture and all other remedial proceedings in favor of the State of any monetary instrument, property, or proceeds representing, involving, or relating to an unlawful activity or a money laundering offense.
SEC.

3. Venue of Cases Cognizable by the Regional Trial Court. A petition for civil forfeiture shall be filed in any regional trial court of the judicial region where the monetary instrument, property, or proceeds representing, involving, or relating to an unlawful activity or to a money laundering offense are located; provided, however, that where all or any portion of the monetary instrument, property, or proceeds is located outside the Philippines, the petition may be filed in the regional trial court in Manila or of the judicial region where any portion of the monetary instrument, property, or proceeds is located, at the option of the petitioner. The Rule Does Not Provide for Civil Forfeiture Before the Sandiganbayan

b.

The Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former. But the authority is concurrent with other similarly

13

authorized agencies. However, the Ombudsman may take over the investigation of such case at any stage from any investigative agency of the Government. This is only directory. SANDIGANBAYAN JURISDICTION NOW WITH CERTIORARI

The decision of the Sandiganbayan is subject to review on certiorari exclusively by the Supreme Court. In the exercise of its functions, the PCGG is a co-equal body with the Regional Trial Courts and co-equal bodies have no power to control the other. The Regional Trial Courts and the Court of Appeals have no jurisdiction over the PCGG in the exercise of its powers under the applicable Executive Orders and Section 26, Article XVIII of the 1987 Constitution and, therefore, may not interfere with and restrain or set aside the orders and actions of the PCGG acting for and in behalf of said Commission. EXCLUSIVE JURISDICTION OVER CASES FILED BY PCGG The exclusive jurisdiction of Sandiganbayan over civil and criminal cases filed by PCGG, as well as incidents arising from, incidental or related to such cases is subject to review on certiorari exclusively by the Supreme Court. JURISDICTION TO ANNUL JUDGMENTS The Sandiganbayan has jurisdiction to annul judgments of the Regional Trial Court in a sequestration related case, such as a judgment of the Regional Trial Court for the enforcement of a foreign judgment involving property that has been lawfully sequestered. JURISDICTION OVER MILITARY AND PNP Republic Act No. 7055 AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY BY RETURNING TO THE CIVIL COURTS THE JURISDICTION OVER CERTAIN OFFENSES INVOLVING MEMBERS OF THE ARMED FORCES OF THE PHILIPPINES, OTHER PERSONS SUBJECT TO MILITARY LAW, AND THE MEMBERS OF THE PHILIPPINE NATIONAL POLICE, REPEALING FOR THE PURPOSE CERTAIN PRESIDENTIAL DECREES. SECTION 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinance, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is serviceconnected, in which case the offense shall be tried by courtmartial:

Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the courtmartial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special penal laws, or local government ordinances. SEC. 2. Subject to the provisions of Section 1 hereof, all cases filed or pending for filing with court-martial or other similar bodies except those where the accused had already been arraigned, shall, within thirty (30) days following the effectivity of this Act, be transferred to the proper civil courts: Provided, That the Chief of the Armed Forces of the Philippines shall, upon petition before commencement of trial and with the written consent of the accused, order the transfer of such expected case or cases to the proper civil courts for trial and resolution. SEC. 3. Presidential Decree Nos. 1822, 1822-A, 1850 and 1952, and all acts general orders, executive orders, and other presidential issuances, rules and regulations inconsistent with this Act are hereby repealed or amended accordingly. The law does not include violations of Republic Act 3019 otherwise known as the Anti-Graft Law even if serviceconnected. Violation of this law falls under the jurisdiction of the Sandiganbayan or the Regional Trial Court depending on the nature of the position of the offender. JURISDICTION OVER THE PNP BY REGULAR COURTS SEC. 46. Jurisdiction in Criminal Cases. Any provision of law to the contrary notwithstanding, criminal cases involving PNP members shall be within the exclusive jurisdiction of the regular courts; Provided, That the courts-martial appointed pursuant to Presidential Decree No. 1850 shall continue to try PC-INP members who have already been arraigned, to include appropriate actions thereon by the reviewing authorities pursuant to Commonwealth Act No. 408, otherwise known as the Articles of War, as amended and Executive Order No. 178, otherwise known as the Manual for Courts-Martial;

R.A. No. 7975 expressly conferred certiorari jurisdiction in the Sandiganbayan, in aid of its appellate jurisdiction. WHERE PUBLIC OFFICIAL CHARGED ACCOMPLICE OF PRIVATE INDIVIDUAL AS MERE

Section 4 of Presidential Decree No. 1606, as amended by Presidential Decree No. 1861, provides in part "that in case private individuals are charged as co-principals, accomplices, or accessories with the public officers or employees, including those employed in government-owned or -controlled corporations, they shall be tried jointly with said public officers and employees." The rule that "accessory follows the principal" appears to underlie the provision of Presidential Decree No. 1606, for when private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, the implication is that the latter was charged as principal. Hence, if a public officer or employee is charged as a mere accomplice or accessory with a private individual, as principal, the corollary implication is that the former shall be tried jointly with the latter in the ordinary courts. The rationale is justified by the total absence of a provision in Presidential Decree No. 1606 directing that all criminal cases involving public officers and employees, without distinction, be tried by the Sandiganbayan, even if the criminal involvement of the public officer is minor or subordinate and inferior to that of the private individuals charged as principals in the case. The jurisdiction of the Sandiganbayan is not meant to be so broad and all-encompassing. EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER PCGG Under Section 2 of Executive Order No. 14, the Sandiganbayan has exclusive and original jurisdiction over all cases regarding the "funds, moneys, assets and properties illegally acquired by former President Ferdinant E. Marcos x x x" civil or criminal, including incidents arising from such cases.

14

Provided, further, That criminal cases against PC-INP members who may have not yet been arraigned upon the effectivity of this Act shall be transferred to the proper city or provincial prosecutor or municipal trial court judge.143 MEANING OF REGULAR COURTS It has been held that the term regular courts in Section 46 of R.A. No. 6975 means civil courts. There could have been no other meaning intended since the primary purpose of the law is to remove from courts martial the jurisdiction over criminal cases involving members of the PNP and to vest it in the courts within the judicial system, i.e., the civil courts which as contradistinguished from courts martial, are the regular courts. Courts martial are not courts within the Philippine judicial system; they pertain to the executive department of the government and are simply instrumentalities of the executive power. Otherwise stated, courts martial are not regular courts. The Sandiganbayan are regular courts within the contemplation. JURISDICTION OF MILITARY COURT A military officer being dropped from the roll amounts to a dishonorable discharge which does not terminate his amenability for the trial in a court martial for the offense he had committed while an officer of the military. The fact that Colonel Abadilla was dropped from the rolls should not lead to the conclusion that he is now beyond the jurisdiction of the military authorities. If such a conclusion were to prevail, his very own refusal to clear his name and protect his honor before his superior officers in the manner prescribed for and expected from a ranking military officer would be his shield against prosecution. His refusal to report for duty or to surrender when ordered arrested, which led to his name being dropped from the roll of regular officers of the military cannot thereby render him beyond the jurisdiction of the military courts for offenses he committed while still in the military service. MILITARY COURTS CIVILIANS HAVE NO JURISDICTION OVER law's

jurisdiction over civilians for offenses allegedly committed by them as long as civil courts are open and functioning. Any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction. The Supreme Court clarified in Tan u. Barrios that "Olaguer should, in principle, be applied prospectively only to future cases and cases still ongoing or not yet final when that decision was promulgated. Hence, there should be no retroactive nullification of final judgments, whether of conviction or acquittal, rendered by military courts against civilians before the promulgation of the Olaguer decision. Such final sentences should not be disturbed by the State." The Supreme Court went on to state:
"Only in particular cases where the convicted person or the State shows that there was a serious denial of the Constitutional rights of the accused, should the nullity of the sentence be declared and retrial be ordered based on the violation of the constitutional rights of the accused, and not on Olaguer doctrine. If a retrial is no longer possible, the accused should be released since the judgment against him is null on account of the violation of his constitutional rights and denial of due process."

Corrupt Practices Act, the appearance of a counsel for an accused who has not been arrested, in the pre-suspension hearing required under said law, is a voluntary appearance. The filing of a motion to dismiss presupposes that the accused is within Philippine territory; otherwise, the "voluntary appearance" is an exercise in futility. Physical control is indispensable. If the accused is outside of the Philippines, he cannot be said to be under the physical control of the Court. Voluntary appearance is accomplished by appearing for arraignment. Such jurisdiction once acquired is not lost upon the instance of the parties, such as when the accused escapes from the custody of the law, but continues until the case is terminated. In such case, the Court may proceed with the trial in absentia of the accused, provided that there has been an arraignment. The cases holding that where the accused, after his arrest, filed a petition for bail, it is too late for him to object thereafter to the regularity of the issuance of the warrant of arrest are no longer true. Under Section 26, Rule 114 of the 2000 Rules on Criminal Procedure:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued thereof, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

JURISDICTION OVER THE PERSON WHEN ACQUIRED Jurisdiction over the person of the accused is acquired upon his arrest or upon his voluntary appearance. RULE IN MILITARY PROCEEDINGS The rule that jurisdiction over a person is acquired by his arrest applies only to criminal proceedings instituted before the regular courts. It does not apply to proceedings under military law. WAIVER Any objection to the procedure leading to the arrest must opportunely raised before the accused enters his plea. The accused is also barred from raising the question jurisdiction over his person if he enters his plea instead objecting to the irregularity of the issuance of the warrant arrest. VOLUNTARY APPEARANCE In a prosecution under Republic Act No. 3019, the Anti-Graft and be of of of

A military commission or tribunal cannot try and exercise

In applications for bail, however, the ACCUSED MUST BE IN CUSTODY OF LAW to be entitled to bail. If the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, the Judge must have jurisdiction over the person of accused and over the case. The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. Thus, in Feliciano v. Pasicolan, where the petitioner who had been charged with kidnapping with murder went into hiding

15

without surrendering himself, motion asking the court to fix release pending trial, the pronounced that said petitioner bail.

and shortly thereafter, filed a the amount of bail bond for his Supreme Court categorically was not eligible for admission to

being constructively and legally under custody. Thus, in the likewise peculiar circumstances which attended the filing of his bail application with the trial court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by an actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. The accused who desires to question the jurisdiction of a court over his person must appear in court only for the specific purpose, and if he raises other questions, he waived the objection to question the jurisdiction over her person. Failure to quash the information on the ground that, by the defective arrest, the court did not acquire jurisdiction over the person of the accused is a waiver to question jurisdiction over his person. Under Section 20, Rule 14 of the 1997 Rules on Civil Procedure: "The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance." There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one's person to the jurisdiction of the court. This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance. These pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; (2) in criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a warrant of arrest. The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over

the person. The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest. To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law. In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief Notwithstanding this, there is no requirement for him to be in the custody of the law.

The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" where the offense is bailable. This rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. The Court should not even allow a motion for bail to be set for hearing unless it has acquired jurisdiction over the person of the accused and the case by its filing in Court. Custody How Acquired: The accused must be in custody of the law, either: a) b) By virtue of a warrant or warrantless arrest; or When he voluntarily submitted himself to the jurisdiction of the Court by surrendering to the proper authorities.

The mere filing of an application for bail is not sufficient. This principle is, however, only for purposes of bail. In other cases, the filing of motion or other papers invoking affirmative relief is a submission to court's jurisdiction. Hence, an application for admission to bail of a person against whom a criminal action has been filed, but who is still at large is premature. As a matter of course, upon voluntary appearance of the accused, the judge should require another motion for bail and set the same for hearing, with the prosecution notified thereof. Unless the accused is in the custody of the law, the court may not even set his application for bail for hearing. EXCEPTIONS WHEN MERE FILING OF MOTION SUFFICIENT In Paderanga v. Court of Appeals (supra), the accused having filed his motion for admission to bail before he was actually and physically placed under arrest, as he was then confined at the hospital, and his counsel manifested before the court at the hearing of the motion that he was submitting custody of the person of the accused to the local chapter president of the Integrated Bar of the Philippines, and for purposes of said hearing on his bail application, he be considered as being in the custody of the law, the Supreme Court held that he may at that point and in the factual ambiance thereof, be considered as

JURISDICTION OVER THE PERSON OF THE ACCUSED BY ARREST OR VOLUNTARY SURRENDER NOT CONDITION FOR COURT TO GRANT AFFIRMATIVE RELIEF Except in applications for bail, it is not necessary for the court to first acquire jurisdiction over the person of the accused to dismiss the case or grant other relief. The outright dismissal of the case even aefore the court acquires jurisdiction over the person of the accused s authorized under Section 6(a), Rule 112 of the Revised Rules of criminal Procedure and the Revised Rules on Summary Procedure. In Allado v. Diokno, the case was dismissed on motion of the iccused for lack of probable cause without the accused having been arrested. In Paul Roberts v. Court of Appeals, the Court was ordered to hold the issuance of a warrant of arrest in abeyance pending review by the Secretary of Justice.

16

preliminary investigation.

And in Lacson v. Executive Secretary, the Court ordered the case transferred from the Sandiganbayan to the RTC which eventually ordered the dismissal of the case for lack of probable cause. It was held in People v. Chun, that where the accused believed that the order of the holding that bail for the crime charged against him is not a matter of right is null and void, he need not wait to be arrested before filing the corresponding petition in an appropriate proceeding assailing the order. THE REVISED RULES OF CRIMINAL PROCEDURE (A.M. No. 00-5-03-SC) EFFECTIVE DECEMBER 1, 2000 RULE 110 PROSECUTION OF OFFENSES

Second: Under the former rule, the commencement of actions by filing the complaint with the appropriate officer for preliminary investigation were limited to cases falling under the jurisdiction of the Regional Trial Court. Section 1 has accordingly been amended by removing therefrom the limitation to offenses commenced by complaint before the appropriate officer for preliminary investigation only to those offenses cognizable by the Regional Trial Court, but This is no longer true. included to a limited extent cases cognizable by the municipal trial courts.

Under Section 1 of Rule 112, except as provided in Section 7 of said rule, referring to lawful arrests without a warrant, preliminary investigation is required for an offense punishable by imprisonment of at least four (4) years, two (2) months and one (1) day.

It should also be noted section 5, Rule II of Administrative No. 8 of the Office of the Ombudsman provides that: "Cases falling under the jurisdiction of the Office of the Ombudsman which are cognizable by municipal trial courts, including those subject to the Rule on Summary Procedure may only be filed in court by Information approved by the Ombudsman, or the proper Deputy Ombudsman in all other cases."

The reason why originally there was no preliminary SECTION 1. Institution of Criminal Actions investigation in cases triable by justice of the peace or municipal courts was because they involved only minor offenses or misdemeanors. The criminal cases then exclusively triable by municipal courts were those where the penalty provided by law did not First: The removal of cases governed by the Rule on Summary Procedure in special cases from the manner of institution of criminal actions above provided for. Subsequently, however, the offenses exclusively triable by municipal courts were increased to those punishable with The opening phrase in the former Rule "For offenses not subject to the rule on summary procedure in special cases" was deleted. imprisonment of not exceeding four years and two months and/or a fine ofP4.000.00 and were further increased to those punishable with imprisonment not exceeding six (6) years irrespective of the amount of the fine. exceed six months imprisonment and/or a P200.00 fine.

Third: Under the former rule, prescription is interrupted in all cases upon the institution of the criminal action.

There are three (3) amendments in this rule:

The 1988 Amendments abandoned the ruling of the Supreme Court in People u. Olarte and adopts the ruling in Francisco u. Court of Appeals, to the effect that the filing of the complaint with the fiscal's office also interrupts the period of prescription of the offense charged. This includes cases filed with the ombudsman for preliminary investigation.

The Rule does not apply to violations of municipal This phrase was ane of the basis of the ruling of the Supreme Court in the case of Zaidivia v. Reye1 excluding offenses subject to summary procedure from the general rule on the interruption of the period of prescription. Clearly, therefore, these offenses were not minor or misdemeanors required.
Since, the type of offenses that requires preliminary investigation have been expanded by amendment to Section 1, Rule 112 to offenses punishable by imprisonment of at least four (4) years, two (2) months and one (1) day, Section 1 required such cases to first be filed for

ordinances and special laws.

and

yet

no

preliminary

investigation

was In Zaidivia u. Reyes, the court held that the interruption of the prescriptive period upon the institution of the complaint under Section 1 of Rule 110, does not apply to cases for violation of special acts and municipal ordinances.

Under the amendment, the institution of all criminal actions shall be the same.

17

This is governed by Act No. 3326 and is interrupted only by the institution of judicial proceedings for its investigation and punishment.

Periods of Prescription for Violations Penalized By Special Laws and Municipal Ordinances and to Provide When Prescription Shall Begin To Run."

complainant of the complaint or the certificate or repudiation or of the certification to file action issued by the lupon or pangkat secretary:

The Court clarified in Reodica u. Court of Appeals, that even if the case is governed by the Revised Rule on Summary Procedure (which is not a violation of a municipal ordinance or special law), such as reckless imprudence resulting in slight physical injuries, prescription is interrupted with the filing of the complaint in the Fiscal's office. In view, however, of the ruling in Zaidivia v. Reyes, that the rules cannot amend special laws, and under Act No. 3326, the period of prescription for offenses punishable by special laws, prescription shall only be interrupted upon the institution of judicial proceedings for its investigation and punishment, the rule has accordingly been amended to except therefrom offenses punishable by special laws so far as prescription is concerned.

It provides among others that "violations penalized by municipal ordinances shall prescribe after two months."

Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong barangay

The exception therefore, includes violations of municipal ordinances. And is interrupted even if the case filed is not within the jurisdiction of the court. A distinction is made between the "institution" and the "commencement" of a criminal action. PRESCRIPTION INTERRUPTED WITHOUT JURISDICTION EVEN IF COURT IS

For offenses which require a preliminary investigation, the criminal action is instituted by filing the complaint with the appropriate officer for preliminary investigation.

Prescription is interrupted with the filing of the case even if the court is without jurisdiction. The Court, citing Olarte and the subsequent cases of

The main basis of the said ruling of the Supreme Court was that under Act No. 3326 as amended, the prescriptive period for violation of special laws and municipal ordinances was interrupted only upon the filing of the complaint or information in court.

The appropriate officer may be the fiscal or the municipal circuit trial court.

Francisco v. Court of Appeals and People v. Cuaresma. Thus, even if preliminary investigation is not required, "the prescriptive period for the quasi offenses was interrupted by the filing of complaint with the fiscal's office three days after the vehicular mishap and remained tolled pending the termination of the case."

The criminal action is commenced when the complaint or information is filed in court.

This ruling was confirmed in the case of Reodica v. Court ofAppeals11 as an exception to the general rule under Article 91 of the Revised Penal Code that the filing of the complaint, whether for preliminary investigation or for action on the merits, interrupts prescription.

In offenses cognizable by inferior courts, the complaint or information is filed directly with said courts, or the complaint is filed with the fiscal. However, in Metro Manila and other chartered cities, the complaint may be filed only with the fiscal. Exceptions: Unless otherwise provided by special laws (Act 3326) includes violations of municipal ordinance) Prescription Commences from commission or discovery until institution of judicial proceedings. It may, however also be noted that under the Katarungan For Violation of Special Laws It has been settled that Section 2 of Act No. 3326 governs the computation of prescription of offenses defined and penalized by special laws.

Hence, the phrase "unless otherwise provided in special laws" was inserted as an exception to the general rule that such institution shall interrupt the period of prescription of the offense charged.

Pambarangay

Law

while

the

dispute

is

under

mediation

conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with punong barangay.

Act No. 3326, as amended is entitled: "An Act To Establish

The prescriptive periods shall resume upon receipt by the

18

Section 2 of Act No. 3326 was correctly applied by the anti-graft court in determining the reckoning period for SEC. 412. Conciliation. prescription in a case involving the crime of violation of Republic Act No. 3019, as amended. (a) Pre-condition to filing of complaint in court. No complaint, petition, action, or proceeding involving any matter within Since the law alleged to have been violated, i.e., the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the Lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the Lupon secretary or pangkat secretary as attested to by Sec. 2. Prescription should begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when the proceedings are instituted against the guilty person and shall begin to run again if the proceedings are dismissed for reasons not constituting double jeopardy (1) Where the accused is under detention; (2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; This simply means that if the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed. (3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente life; and (4) Where the action, may otherwise, be barred by the The Civil Law rules on prescription is applicable to criminal Condition Precedent to Filing of Case (c) Conciliation The Local Government Code of 1991 which took effect on January 1, 1992, expressly repealed Presidential Decree No. 1508, otherwise known as the Katarungang Pambarangay Law. among members of indigenous cultural communities. The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities. statute of limitations. the Lupon chairman or pangkat chairman or unless the settlement has been repudiated by the parties thereto. paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is Section 2 of Act No. 3326, as amended, which provides:

national legal system and with internationally recognized human rights.

When disputes involve ICCs/Ps, customary laws and practices shall be used to resolve the dispute.

The National Commission on ICCs/Ps NCIP through its regional offices shall have jurisdiction over all claims and disputes involving ICCs/Ps, provided, however, that no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies provided under their customary laws to settle the dispute as certified to by the Council of Elders/Leaders who participated in the attempt at such settlement.
Decisions of the NCIP shall be appealable to the Court of Appeals by way of a petition for review.

(b) Where parties may go directly to court. The parties may go directly to court in the following instances:

SEC.

408.

Subject

Matter

for

Amicable

Settlement;

Exception Thereto. The lupon of each barangay shall have the authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except: (a) Where one party is the government or any subdivision or instrumentality thereof; (b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5,000.00);

In lieu thereof, Chapter 7, Title I, Book III provides for the Katarungang Pambarangay.

However, under Republic Act No. 837, the ICCs/Ps shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by

Pertinent provisions of the law are as follows:

19

an appropriate lupon; (f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;and (g) Such other classes of disputes which the President may determine in the interest of justice or upon the

execution of the law violated.

complaint or information, or both of which are filed in court.

The provincial fiscal is not among the three.

If a complaint is filed directly in court, the same must be filed by the offended party and in case of an information, the same may be filed by the fiscal. However, a "complaint" filed with the fiscal prior to judicial action may be filed by any person.

The information filed by him which instituted the proceeding cannot be considered as a complaint.

1)

Meaning of the term "offended party." The person actually injured and whose feeling is offended.

recommendation of the Secretary of Justice. 2)

e.

Private persons may denounce a violation of banking laws.

The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement.

A widow, however, maybe considered an offended party within the meaning of the applicable rules of court entitled to file a complaint for the murder of her husband.2 f.
Justice Davide, Jr., citing Section 12, Rule 110 refers to an "offended party" in the commission of a crime, public or private, as the party to whom the offender is civilly liable in light of Article 100 of the Revised Penal Code that "every person criminally liable is also civilly liable.

A complaint with the fiscal prior to a judicial action may be filed by any person.

A criminal action cannot be instituted against a juridical person.

SEC. 2. The Complaint or Information

g.

To subscribe and swear to criminal complaint is not ministerial.

Invariably then, the private individual to whom the Criminal actions must be commenced in the name of the People of the Philippines. But the defect is merely of form and curable at any stage of the trial. offender is civilly liable is the offended party. In bigamy both the first and second spouses may be the offended parties depending on the circumstances But the absence of an oath does not invalidate the complaint. Unless the complaint charged is a private offense.

3) SEC. 3. Complaint Defined Who May File Complaint a. b. The offended party. Any peace officer. d.

The right to commence criminal prosecution is confined to representatives of the government and persons injured; otherwise, it shall be dismissed.

h.

The right to file complaint is personal and abated upon death.

But One who is not the offended party file a complaint for preliminary investigation. Unless the offense subject of the complaint is one that cannot be prosecuted de oficio, any competent person may file a complaint for preliminary investigation.

MAY INJUNCTION PROSECUTION

ISSUE

TO

RESTRAIN

CRIMINAL

The general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final.

Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

c.

Other public officer charged with the enforcement or

As a general rule, a criminal action is commenced by a

20

There are, however, exceptions, among which are: a. To afford adequate protection to the constitutional rights of the accused; When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

b.

c.

When there is a prejudicial question;

d.

When the acts of the officer are without or in excess of authority;

e.

Where the prosecution is under an invalid law, ordinance or regulation;

f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

h.

Where it is a case of persecution rather than prosecution;

i.

Where the charges are manifestly false and motivated by the lust for vengeance;

j.

When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and

k.

Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.

21

SEC. 4. Information defined Distinguish Information from Complaint

As distinguished from information, a complaint is:

"In case the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. This is based on the doctrine of parens patriae." that:

The amendment inadvertently failed to reproduce the statement

However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case.

Rape is now a crime against person and consequently can be prosecuted even without a complaint filed by the offended party.

a. b. c.

Executed by a private party, etc.; Supported by oath of the complainant; and Need not necessarily be filed with the court.
RE: PROPOSED AMENDMENTS TO SECTION 5, RULE 110 OF THE REVISED RULES OF CRIMINAL PROCEDURE [A.M. No. 02-2-07-SC. April 10, 2002]

This

authority

shall

cease

upon

actual

intervention

of

the

prosecutor or upon elevation of the case to the Regional Trial Court.

This does not, however, mean that the persons mentioned therein may no longer prosecute the case under the conditions mentioned in the old rule.

An information not properly signed cannot be cured by silence, acquiescence or even by express consent.

Acting on the Memorandum dated 2 February 2002 of Court

It must be filed with the court, otherwise it is not an information.

administrator Presbitero J. Velasco, Jr. submitting for this Court's consideration and approval the proposed amendment to Sec. 5, Rule L10 of the Revised Rules of Criminal Procedure, the Court Resolved to APPROVE the amendment to Sec. 5, Rule 110 so as to read as follows:

The amendment was merely intended to regulate the appearance of the private prosecutor and stress the direction and control of the public prosecutor in the prosecution of criminal cases.

EFFECT OF LACK OF INTERVENTION BY FISCAL IN TRIAL OF A CRIMINAL CASE Before the 1985 amendment, the Supreme Court, in Garcia v. Domingo, citing Cariaga v. Justo, held that the absence of the Assistant Fiscal is not a jurisdictional defect but the court should have cited the public prosecutor to intervene.

SEC. 5. Who must prosecute criminal actions

Under the 1985 amendments, the following sentences were added to the first paragraph of Sec. 4 of the old Rule 110, to wit:

"Section 5. Who must prosecute criminal actions. All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor.

In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.

"However, in the Municipal Court or Municipal Trial Courts when there is no fiscal available, the offended party, any peace officer or public officer charged with the enforcement of the law violated may prosecute the case.
This authority ceases upon actual intervention of the fiscal or upon elevation of the case to the Regional Trial Court. This is based on the Resolution of the Supreme Court in People v. Beriales."

The rule was modified in People v. Beriales where it was held that although the Fiscal turns over the active conduct of the trial to the private prosecutor, he should be present during the

Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn.

proceedings

Thus, in the case of People v. Munar, the Court upheld the right of the private of the prosecutor witnesses therein because to the conduct the examination government

In the third paragraph of Section 4 of the old Rule 110, the fol-owing was added:

This amendment to Rule 110 shall take effect on the first day of May 2002 following its publication in two newspapers of general circulation on or before 30 April, 2002.

prosecutors were present at the hearing; hence, the prosecution of the case remained under their supervision and control.

22

In the present case, although the private prosecutor had previously been authorized by the special counsel Rosario R. Polines to present the evidence for the prosecution, nevertheless, in view of the absence of the City Fiscal at the hearing on December 13, 1974, it cannot be said that the prosecution of the case was under the control of the City Fiscal.

either to Dr. Tansingco's competency or his post mortem findings, the doctor's testimony was dispensed with.

The authority, however, of the provincial prosecutor to appeal for the People of the Philippines is confined only to the proceedings before the trial court.

The defense likewise waived the fiscal's presence on that date." In appeals before the Court of Appeals or to the Supreme Court either by petition for review or certiorari, the Solicitor In Bravo v. Court of Appeals The proceedings was held to be valid even without the physical presence of Fiscal as distinguished from Beriales case, where no Fiscal appeared to prosecute. Service thru the Provincial Prosecutor is inefficacious and shall be sufficient ground for dismissal on the petition as provided in section 3, Rule 46. General is the sole representative of the People.

It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff, the People of the Philippines.

There was, therefore, no evidence at all to speak of which could have been the basis of the decision of the trial court.

Here, the Fiscal appeared but left the prosecution to the private prosecutor under his supervision and control. Fiscal's Discretion in Prosecution Prior to the filing of a case in court:

Moreover, as aptly observed by the Solicitor General, "to permit such prosecution of a criminal case by the private prosecutor with the fiscal in absentia can set an obnoxious precedent that can be taken advantage of by some indolent members of the prosecuting arm of the government as well as those who are oblivious of their bounden duty to see to it not only that the guilty should be convicted, but that the innocent should be acquitted a duty that can only be effectively and sincerely performed if they actively participated in the conduct of the case, especially in the examination of the witnesses and the presentation of documentary evidence for both parties.

The Court noted in a subsequent case that the public prosecutor may turn over the actual prosecution of the criminal case, in the exercise of his discretion, but he may, at any time, take over the actual conduct of the trial. b. a.

A prosecuting attorney cannot be compelled to file a particular criminal information. The Court cannot interfere with the Fiscal's discretion and control of criminal prosecution. The Court cannot compel the fiscal to prosecute or file information within a certain period of time.

However, it is necessary that the public prosecutor be present at the trial until the final termination of the case; otherwise, if he is absent, it cannot be gainsaid that the trial is under his supervision and control.

c.

The absence, however, of a prosecutor cannot be raised by The decision appealed from was set aside and the case remanded to the trial court for another arraignment and trial. an accused to invalidate the testimony of a state witness if he cannot prove personal prejudice. Necessity of Service to Government Counsel Failure to serve pleadings and orders upon government counsel renders the court orders issued uponsuch petitions or motions of an accused as void. Notice, however, given to the fiscal is notice to the private Since no objection was interposed by appellant's counsel, prosecutor.

It is the rule that a fiscal by the nature of his office is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof.

The same principle was not, however, observed in People v. Malinao, where the Supreme Court did not consider the absence of the fiscal prejudicial to the accused "for only Dr. Nicanor L. Tansingco was presented to testify on his autopsy report on the deceased Manang.

Although this power and prerogative of the Fiscal to determine whether or not the evidence at hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion, he does not have the necessary evidence to secure a

23

conviction, or he is not convinced of the merits of the case.

evidence to support at least aprima facie case.

The prosecuting fiscal has no more control over said cases, the same having been transferred to the court.

The better procedure would be to appeal the Fiscal's decision to the Ministry of Justice and/or ask for a special prosecutor.

The courts try and/or convict the accused but as a rule have no part in the initial decision to prosecute him. The situation is akin to the pronouncement made in Lansang u. Garcia, that whenever a formal complaint is The possible exception is where there is an unmistakable presented in court against an individual, the court steps in and takes control thereof until the same is finally disposed of.

The failure of the Fiscal to include the other public officials who appear to be responsible for the offense charged as coaccused in the information does not vitiate the validity of the information since the matter of prosecuting witnesses for the People is a prerogative of bhe prosecuting fiscal.

showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive.

However, the matter of instituting an information should But in such a case, the proper remedy to call for such exception prohibition. is a petition for mandamus, not certiorari or be distinguished from a motion by the fiscal for the dismissal of a case already filed in court.

The manner by which the prosecution of a case is handled is within the sound discretion of the prosecutor and the noninclusion if other guilty persons is irrelevant to the case against the accused. Moreover, before resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion. The prosecutor cannot be compelled to include in the information, a person against whom he believes no sufficient evidence of guilt exists. A case dismissed before arraignment maybe refiled.

The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to sustain the prosecution.

This is, as it should be, because the case is already in court and, therefore, within its discretion and control.

In the landmark case ofCrespo u. Mogul, the Supreme FULL CONTROL BY THE COURT ONCE INFORMATION FILED IN COURT However, in cases where the information had already been filed in court, the latter acquires jurisdiction over them. Court, sifter a review of past precedents held: "The rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court.
Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court.

While the prosecuting officer is required by law to charge all those who, in his opinion, appear to be guilty, he nevertheless cannot be compelled to include in the information a person against whom he believes no sufficient evidence of guilt exists.

The appreciation of the evidence involves the use of discretion on the part of the prosecutor.

Otherwise stated, the jurisdiction of the court become vested upon the filing of the information and, once acquired, its jurisdiction continues until the termination of the case.

The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. Where the information had already been filed in court, it should therefore dispose of them, one way or the other, resolving all motions brought before it including motions to But even the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient dismiss, filed by the Fiscal, or deciding the cases on the merit.

The Court is the best and sole judge on what to do with the case before it.

The determination of the case is within its exclusive jurisdiction and competence.

24

A motion to dismiss the case filed by the Fiscal should be addressed to the Court who has the option to grant or deny the same.

resolution of the Fiscal to the Secretary of Justice, on the ground that the crime committed was murder, the RTC refused to defer the arraignment, and allowed the accused to post bail in the sum of P20,000 each. Thus, should the fiscal find it proper to conduct a reinvestigation of the case, the permission of the court must be secured.

It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.

The accused were arraigned and entered a plea of not guilty.

After

such

reinvestigation,

the

finding

and

recommendations of the fiscal should be submitted to the court for appropriate action.

Thus, it is now settled that once a complaint or information is filed in court any disposition of the case as to its dismissal or the conviction or the acquittal of the accused rests in the sound discretion of the court.

The Secretary of Justice found the case to be murder, but withdrew its recommendation to amend the information to murder upon learning the accused have already been arraigned. The Supreme Court clarified that while the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case had already been The Court found the Fiscal and Judges concerned to have gravely abused their discretion in not deferring the arraignment pending disposition of the appeal to the Secretary of Justice. brought to the Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the court.

A motion to dismiss the case filed by the fiscal should be addressed to the court, who has the option to grant or deny the same.

It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instruction of the Secretary of Justice who reviewed the records of the investigation."

The Court should have suspended the arraignment of this information for homicide and await resolution on the petition for PRINCIPLE WAS FURTHER STRESSED IN review to DOJ on the ground that the crime is for murder.

The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the people to due process.

THE

DIMATULAC V. VILLON Otherwise, In this case, the accused were charged with murder before the Municipal Court which found a probable cause for murder and issued warrants for the arrest of the accused without bond, after which the records were forwarded to the Provincial Fiscal. MOTION FOR REINVESTIGATION TO BE ADDRESSED TO COURT In Velasquez v. Tuquero, it was held that a motion for reinvestigation should, after the court had acquired jurisdiction over the case, be addressed to the trial judge and to him alone. The complaint cannot be withdrawn by the Fiscal without The offended party appealed to the Secretary of Justice. Neither the Secretary of Justice, the State Prosecutor, nor the fiscal may interfere with the judge's disposition of the case, In the meantime, despite the appeal, the prosecutor filed the information for homicide, and despite the objections of the offended party on the ground that they have appealed the much less impose upon the court their opinion regarding the guilt or innocence of the accused, for the Court is the sole judge of that. The provincial fiscals are not clothed with power, without the consent of the court, to dismiss or nolle prosequi criminal actions actually instituted and pending further proceedings. the court's consent. should be murder. the arraignment may be set aside, and The Court has the final say on any subsequent disposition or action, since the case is brought before it which will not be disturbed by the appellate court unless it is shown that the trial court acted without jurisdiction or in excess of its jurisdiction or otherwise committed a grave abuse of discretion amounting to such lack or excess of jurisdiction. COMPLAINT CANNOT BE WITHDRAWN WITHOUT COURT'S CONSENT BY FISCAL

information amended if DOJ finds that the proper information

Without the accused having been arrested, the Fiscal conducted a reinvestigation and received the evidence of the accused, found the case to be homicide.

25

of the fiscal, when the complaint or information has already been The power to dismiss is vested solely in the court, i.e., the presiding judge. See however, Galvez v. Court of Appeals, upholding the right of the prosecution to withdraw the information for homicide, the evident purpose was to refile a case of murder against the same accused before arraignment even without notice and hearing. Fiscal Entitled to be Heard on Motion to Dismiss However, while the trial court is the sole judge on whether a criminal case should be dismissed (after the complaint or information has been filed in court) still, any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused should first be referred to the prosecuting fiscal for his own view on the matter. Moreover, where the DOJ had already given due course to the petitioner's petition for review, it was premature for respondent judge to deny the motions to suspend proceedings and to defer arraignment on the ground that "since the case is already pending for trial, to follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this court. filed in court."

The only option of the judge was to proceed with the arraignment of the accused and, thereafter, conduct a pre-trial and trial on the merits, should he enter a plea of not guilty. It does not, however, necessarily follow that the court should merely adopt the recommendation of the Prosecutor.

In Montesa, the stand of the prosecution is to maintain the information, in which case there is nothing more for the court to do but to proceed with the case.

Thus,

where and

the

judge the

granted Office

the of

motion

for

The situation is different if the motion of the fiscal is for the dismissal or withdrawal of the information. ULTIMATE TEST OF TRIAL COURT'S INDEPENDENCE IS WHERE FISCAL FILES A MOTION TO DISMISS The Supreme Court stressed that the real and ultimate test of the independence and integrity of the trial court is not the filing of the motions to suspend proceedings and defer

reinvestigation

directed

the

Provincial

Prosecutor to conduct the reinvestigation, the former was deemed to have deferred to the authority of the prosecution arm of the Government to consider the so-called new relevant and material evidence and determine whether the information it had filed should stand.

He is, after all, in control of the prosecution of the case and he may have his own reasons why the case should not be dismissed.

Having done so, it behooved the judge to wait for a final resolution of the incident. VALID BASIS OF JUDGE'S FINAL ACTION WHERE FISCAL STANDS ON INFORMATION The findings and conclusion of the Provincial Prosecutor, being the final disposition on the reinvestigation, should be the sole and only valid basis of the judge's final action (not that of the Assistant Provincial Prosecutor).

arraignment at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor.

It is only after hearing the prosecuting fiscal's view that the Court should exercise its exclusive authority to continue or dismiss the case. The Parameters of the Court's Control The Supreme Court, clarified in Marcelo v. Court of Appeals, that there is nothing in Crespo v. Mogul, which bars the DOJ from taking cognizance of an appeal, by way of petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor.

Before that time, the pronouncement in Crespo u. Mogul, that "once a complaint or information is filed in Court, any disposition of the case as its dismissal or the conviction of the accused or acquittal of the accused rests in the sound discretion of the court," did not yet become relevant or applicable.

Where the Provincial Prosecutor to which the judge had deferred the matter for reinvestigation, had finally resolved to stand on the information and to present evidence to prove the guilt of the accused for the crime charged, the judge did not have the option to dismiss the case on the basis of the disapproved resolution of the Assistant Provincial Prosecutor.

However, once a motion to dismiss or withdraw the information is filed, the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this con-

It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the action

26

clusion can be arrived at only after an assessment of the evidence in the possession of the prosecution.

therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done.

I.

Control by Prosecution

1. What is imperatively required is the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept or reject the prosecution's word for its supposed insufficiency or to simply rely on Crespo v. Mogul. Accordingly, if the fiscal is not at all convinced that a prima facie case exists, he simply cannot move for the dismissal of the In the absence of a finding of grave abuse of discretion, the court's bare denial of a motion to withdraw information pursuant tc the Secretary's resolution is void.
FISCAL MAY BE COMPELLED TO PROSECUTE CASES ALREADY FILED

What case to file; Whom to prosecute; Manner of prosecution; and Right before of Prosecution to even Withdraw without information notice and arraignment

As such, he is in a peculiar and very definite sense, the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffers.

2. 3. 4.

hearing. There must be leave of court after prior notice and hearing.

case and, when denied, refuse to prosecute the same. II. He is obliged by law to proceed and prosecute the criminal action. 1. 2. 3. 4. 5. Suspension of Arraignment; Reinvestigation; Prosecution by Fiscal; Dismissal; and Downgrading offense or dropping of accused even before plea. Control by Court Once Case is Filed

Notwithstanding his personal convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the court to enable the court to arrive at its own independent judgment as to the culpability of the accused.

He cannot impose his opinion on the trial court.

At least what he can do is to continue appearing for the prosecution and then turn over the presentation of evidence to another fiscal or a private prosecutor subject to his direction and control. Where there is no other prosecutor available, he should proceed to discharge his duty and present the evidence to the best of his ability and let the court decide the merits of the case

The fiscal should not shirk from his responsibility much less leave the prosecution of the case at the hands of a private prosecutor.

III. Limitations on Control by Court

1.

Prosecution entitled to notice of hearing;

At all times, the criminal action shall be prosecuted under his direction and control. Otherwise, the entire proceedings will be null and void.

on the basis of the evidence adduced by both parties. 2. The supervision and control of the prosecutor extends to the civil liability instituted with the criminal action if it was not filed separately, reserved or there is no private prosecutor who intervened. 4. 3. Prosecution's stand to maintain prosecution should be respected by court; Court must await result of petition for review;

In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government "since an offense is an outrage to the sovereignty of the State." This is so because "the prosecuting officer is the

DEVELOPMENTS FROM CRESPO TO DIMATULAC: a. Distinction between control of prosecution and control of court

Ultimate test of court's independence is where fiscal files motion to dismiss or to withdraw information;

representative not of an ordinary party to a controversy but of a sovereignty where the obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest,

5.

Court has authority to review (power of Judicial

27

Review)

8353, the Anti-Rape Law of 1997 which took effect on October 22, 1997, reclassifying rape as a crime against person and is now a "public crime."

of, and in spite of the complainant, his death notwithstanding. Purpose of Rule The complaint required (in Article 344 of the Revised Penal Code) was not enacted for the specific purpose of benefitting the accused, but is a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties.

Secretary's recommendation and reject it if there is grave abuse of discretion.

Concept of Private Crimes *See, (60) days. however, Sec. ll(c), Rule 116, The term "private crimes" in reference to felonies which cannot be prosecuted except upon complaint filed by the aggrieved party, is misleading. The Resolution of the Secretary of Justice may be appealed to the Office of the President in offenses perpetua. punishable by death or reclusion Far from what it implies, it is not only the aggrieved party who is offended in such crimes but also the State. Suspension of arraignment does not exceed sixty

Such condition has been imposed out of consideration for the offended women and her family who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial.

6.

To reject or grant motion to dismiss court must make own independent assessment of evidence.

Every violation of penal laws results in the disturbance of public order and safety which the State is committed to uphold and protect.

Thus, while the complaint filed by a mental retardate may have been technically defective in the sense that complainant was incompetent, this defect has been cured when complainant's brother Pernando Alcala took the witness stand for the prosecution.

7.

Judgment is void if there is no independent assessment discretion. and finding of grave abuse of

If the law imposes the condition that private crimes like adultery shall not be prosecuted except upon complaint filed by the offended party, it is, "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial."

The

brother's

testimony

shows

that

consent

and

CRIMES PROSECUTED UPON COMPLAINT OF OFFENDED PARTY The rule on crimes that must be prosecuted upon complaint filed by the offended party may be classified into three categories:

willingness of the family of the complainant, who can not give her consent obviously, to have the private offense committed against the latter publicly tried.

Once a complaint is filed, the will of the offended party is ascertained and the action proceeds just as in any other crime. Substantially, this is what is required by the rules.

This is shown by the fact that after filing a complaint, any a. b. c. In crimes of adultery and concubinage; In offenses of seduction, abduction, or acts of lasciviousness; Criminal actions for defamation which consist in the It is true, the institution of the action in so-called private crimes is at the option of the aggrieved party. imputation of an offense mentioned above. pardon given by the complainant to the offender would be unavailing.

Evidently, by undergoing trial, the family of complainant chose to denounce the injustice committed against the latter in public and thus agreed to bear the personal effects of said exposure.

Undoubtedly, therefore, the trial court had jurisdiction to try the case.

Rape was excluded as a private crime in view of R.A. No.

But it is equally true that once the choice is made manifest, the law will be applied in full force beyond the control

28

Compliance with Rule Is Jurisdictional While the complaint required in said Art. 344 is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties, and such condition has been imposed out of consideration for the offended woman and her family who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial. Compliance with Rule 110, Section 5, is Jurisdictional and not merely a formal requirement.

factors pertinent to the punishment of the culprit.

CAPACITY AND LEGAL REPRESENTATION AT THE TIME OF FILING OF ACTION FOR ADULTERY Where the complainant had already been divorced, he can no longer file the complaint. Said the Supreme Court: Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action.
This is a familiar and express rule in civil actions; in fact, lack of

When it is said that the requirement in Article 344 that there should be a complaint of the offended party or his relative is Jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding.

It is not the complaint which confers jurisdiction in the court to try the case.

The Court's jurisdiction is vested in it by the Judiciary Law. Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. Unlike the offenses of seduction, abduction, rape and acts It has since long been established, with unwavering consistency, that compliance with this rule is a Jurisdictional, and not merely a formal requirement. While in point of strict law, the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as Jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding and without which the Court cannot exercise its jurisdiction to try the case. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules on Criminal Procedure with MEANING OF TERM "JURISDICTIONAL" the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, [rape] and acts of lasciviousness, in default of her It was explained in People v. Tanada (supra), that this provision does not determine, however, the jurisdiction of our courts over the offenses therein enumerated. In other words, only the offended spouse, and no other, is It could not affect said jurisdiction, because the same is governed by the Judiciary Act of 1948, not by the Revised Penal Code, which deals primarily with the definition of crimes and the OFFENDED PARTY IN ADULTERY MUST HAVE THE STATUS, authorized by law to initiate the action therefor. parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, IN PROSECUTIONS FOR ADULTERY AND CONCUBINAGE, THE PERSON WHO CAN LEGALLY FILE THE COMPLAINT SHOULD BE THE OFFENDED SPOUSE, AND NOBODY ELSE

legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply.

Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party, being merely the complaining witness therein.

grandparents or guardian of the offended party.

The

so-called

exclusive

and

successive

rule

in

the
However, in the so-called "private crimes," or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

prosecution of the first four offenses above mentioned do not apply to adultery and concubinage.

In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist at the time he initiates the action.

It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal

29

capacity to do

bring his wife and the alleged paramour to justice being too evident.

writing in the form of searching questions and answers. On the basis of that examination, a warrant of arrest was issued.
In his appeal, Bulaong contends through his counsel de officio that the lower court did not acquire jurisdiction over the case because the information filed by the city fiscal is fatally defective for not containing the verification required in Form 24 of the Appendix to the Rules of Court.

Exclusive Right of Offended Party When of Age If the offended party is of age, the right to file the complaint is exclusive and successive. None of these persons has authority to proceed if there is any other person previously mentioned therein with legal capacity to appear and institute an action. Where, however, the victim who was also of age is incapacitated by reason of insanity or physical incapacity, the complaint filed by the father is valid. In a case where the Fiscal filed an Information charging the accused with 'telling some people in the neighborhood that said Fausta Bravo (a married woman) was a paramour of one Sangalang, a man not her husband,' and Fausta Bravo did not subscribe to the complaint, the Supreme Court held that the trial court had no jurisdiction over the case. FILING OF SUFFICIENT VERIFIED STATEMENT BEFORE COURT

The contention has no merit.

The forms prescribed in the Rules of Court "serve as mere illustrations."

Jurisdiction over the crime charged in this case is conferred by law,

OVERRIDING CONSIDERATION IN DETERMINATION OF COMPLIANCE WITH RULE The overriding consideration in determining the issue of whether or not the condition prescribed in Article 344 of the Revised Penal Code has been complied with is the interest of the aggrieved committed. DEATH OF COMPLAINANT DURING PENDENCY OF CASE DOES NOT EXTINGUISH CRIMINAL LIABILITY The death of the complainant during the pendency of the case is not a ground for extinguishment of criminal liability whether total or partial. party to seek judicial redress for the affront

It ruled that since the accused imputed to Fausta Bravo the commission of adultery, a crime which cannot be prosecuted de officio, the Information filed by the Fiscal cannot confer jurisdiction upon the court of origin.

not by the complaint or information which is merely the means by which jurisdiction is invoked or which gives the court the occasion for exercising its jurisdiction.

It must be noted, however, that this error could be corrected without sustaining the motion to quash and dismissing the case. Pursuant to Section 1 of paragraph (a) of P.D. No. 77, under which the Assistant City Fiscal conducted the preliminary investigation, the statement of the complainant was sworn to before the aforesaid Investigating Fiscal. Assuming that the recitals in said sworn statement contain all those required of a complaint under the rules, a copy of said verified statement of the complainant under the rules should be filed with respondent court in order to comply with the requirements of Article 360 of the Revised Penal Code; otherwise, the respondent Fiscal should file with said court, a verified complaint of the offended party.

INITIATION OF COMPLAINT SUFFICIENT COMPLIANCE

IN

FISCAL'S

OFFICE

IS

A "Salaysay" or sworn statement of the offended party, which prompted the Fiscal to con-duct a preliminary investigation and then to file an information in court, is not the complaint contemplated/required by Article 344 of the Revised Penal Code.

The Rule was modified in Valdepenas u. People, which held that the complaint filed by the offended woman and her mother before the Justice of the Peace Court and forwarded to the CFI of Cagayan, in which the corresponding information for forcible abduction with rape was filed and was considered as sufficient compliance with the law.

DEATH OF COMPLAINANT BEFORE FILING OF CASE IN COURT The fact that before a criminal information for adultery could be filed, the offended party who had already filed a sworn complaint with the fiscal died, is not sufficient justification for dismissal of the information, the desire of the offended party to

COMPLAINT FILED BY OFFENDED PARTY IN INFERIOR COURT SUFFICIENT; OFFENDED PARTY NEED NOT SUBSCRIBE INFORMATION In this case, the complaint for abduction with rape 'against Bulaong was filed in the city court by the offended girl and her father. That complaint was sworn to before the city judge. It was the basis of the preliminary examination. The judge examined the witnesses under oath. The examination was reduced to

It is not necessary for the complainant to sign and verify the information filed by the Fiscal. The complaint adopted by the Fiscal and attached to and made part of the corresponding information filed after investi-

30

gation is sufficient.

Since the filing of a complaint for any of the offenses enumerated in Article 344 of the Revised Penal Code, by the person or persons mentioned therein is jurisdictional, the filing thereof is sufficient to initiate a valid prosecution, and no information need be Sled any longer by the Fiscal. EFFECT OF VARIANCE BETWEEN INFORMATION AND THE EVIDENCE COMPLAINT AND

The right and power of the court to try the accused for the crime of rape attaches upon the filing of the complaint, and a change in the allegations thereof as the manner of committing the crime should not operate to divest the court of the jurisdiction it has already acquired.

In People v. Sunpongco, the failure of the prosecution to formally offer in evidence the sworn complaint of the offended party or the failure to adhere to the rules is not fatal and does not oust the court of its jurisdiction to hear and decide the case.

The right or power to try the case should be distinguished from the right of the accused to demand an acquittal unless it is shown that he has committed the offense charged in the information even if he be found guilty of another offense; in the latter case, however, even if the court has no right to find the accused guilty because the crime alleged is different from that proved, it cannot be stated that the court has no jurisdiction over the case.

If the complaint is forwarded to the Court as part of the record of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence of the prosecution. Seduction, Abduction, Act of Lasciviousness The right is exclusively and successively reposed in the offended party, her parents or guardian in the order in which they are named.

A distinction should be made where there is a variance in the allegations in the complaint of the manner the crime was committed and the allegations in the information; and a variance between the allegations in the information and the evidence adduced by the prosecution. a. Where the complaint filed was for forcible abduction, while the information filed by the Fiscal was for rape inasmuch as the crime if rape is different from the crime of forcible abduction alleged in the complaint, said complaint could not serve as a basis for the court to acquire jurisdiction over the crime actually committed. Where, however, the complaint was for rape, a change in the manner of committing the crime of rape from that as alleged in the complaint does not divest the court of its jurisdiction. c.

Where the complaint signed by the complainant charged the accused with abduction with rape detailed in her sworn statement which form part of the records of the preliminary investigation, even if the body of the complaint does not specify the elements of forcible abduction, if the information sufficiently charged the complex crime forcible abduction with rape, the court validly acquired jurisdiction.

This is out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. NO NEED TO FILE INFORMATION; FILING OF COMPLAINT IS SUFFICIENT In a case involving crimes against chastity, the prosecution may be conducted by the fiscal on the basis of the complaint filed in the inferior court. There is no need to file an information. Hence, the other contention of the accused that the information should have been signed by the offended girl is wrong. b.

d.

Where the information, however, charged the accused of rape by force and intimidation, he cannot be convicted of rape on the ground that the victim was raped while she was unconscious or otherwise deprived of reason as it would violate his right to be informed of the nature and cause of the accusation against him, except when there is a failure to object thereto during the trial in which case the accused may be convicted of the rape proved even if committed in a manner different from that alleged in the information. Other Cases

The power of jurisdiction of the court is not over the crime of rape when committed on a minor and demented girl, but over rape, irrespective of the manner in which the same may have been committed.

The court, therefore, erred in holding that it had no jurisdiction to try the crime charged in the information simply because it charges the accused with having a.

Article 344 of the Revised Penal Code, reproduced in Section 4, Rule 110 of the Rules of Court, does not require that the offended girl in a crime against chastity should sign the information filed by the fiscal.

committed the crime on a demented girl, instead of through the use offeree and intimidation. The father has no preferential right over the mother to file the complaint.

31

b.

A complaint must be filed by the legal guardian. An oath that he is the guardian was held as sufficient. The error may, however, be corrected without sustaining the motion to quash and dismiss the case.

The death of offended party in a criminal case for libel or defamation does not extinguish criminal liability of accused.

c.

Where the complaint is for attempted rape, the city court has jurisdiction to try the case for acts of lasciviousness, the crime allegedly committed as per inquest fiscal's findings, though the complainant did not sign a complaint for acts of lasciviousness, lasciviousness. attempted rape includes acts of Where the statement of the complaint was sworn to before the investigating fiscal; and the recitals in the sworn statement contain all those required of a complaint under the rules, a copy of the verified statement of the offended party may be filed in court Fiscal should have prepared another Time of the offense under the former rule was changed to DATE of the offense. Thus, where the information was based on the criminal complaint filed with the fiscal's office which conducted the corresponding preliminary investigation and the records conformably with the procedure then in force was transmitted to the trial court, such circumstance does not deprive the court of its jurisdiction. What facts and circumstances are necessary to be stated Imputing prostitution, does not indicate an adulterous act and can be prosecuted de officio. Where, however, in addition to allegedly calling the complainant a whore, the private respondent is also charged in one information with having described the former as a "paramour of my husband," this is a clear imputation of adultery. must be determined by reference to the definitions and the essentials of the specific crimes. All Elements of Crime Must be Alleged It is fundamental that every element of which the offense is composed must be alleged in the complaint or information. SEC. 6. Sufficiency of complaint or information

While

the

complaint for acts of lasciviousness, this is not jurisdictional the complaint started the criminal action because a private crime can not be prosecuted de officio.

d.

Where the accused is charged with rape committed thru force and intimidation, he cannot be convicted of rape committed under paragraph 2 of Article 335 when the woman is deprived of reason or is otherwise unconscious.

e.

In robbery with rape or rape with homicide, the complaint of offended party is not essential. Defamation A published letter stating that a woman employee had

The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the ofiense. Matter of Evidence; Need Not be Averred However, it is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be stated in order to render the information sufficiently certain to identify the offense.

A paramour is "one who loves or is loved illicitly."

"illicit relationship with another who is the former's paramour" imputes adulterous relationship between the two. wife. A prosecution for libel based thereon cannot be made without the sworn complaint of the offended party. Since the accused imputed the commission of adultery, a crime which cannot be prosecuted de officio, the Information filed by the Fiscal cannot confer jurisdiction upon the Court of origin. A mistress, also called a lover, accordingly, that imputation is covered by Rule 110. As a general rule, matters of evidence, as distinguished DEATH OF OFFENDED PARTY IN CASES OF LIBEL OR DEFAMATION from facts essential to the description of the offense, need not be averred. One taking the place without legal rights of a husband or

32

For instance, it is not necessary to show on the face of an information for forgery in what manner a person is to be defrauded, as that is a matter of evidence at the trial.

ammunitions outside of his residence. The contention is without merit. What is important is that the information states that the accused is being charged of an offense under R.A. No. 7610 As the court had stated in People v. Austria, the based on the complaint of the offended party, to which the accused had adequately responded. presentation of evidence "cannot have the effect of validating a void information, or proving an offense which does not legally exist.

Reasonable Certainty is Sufficient Moreover, reasonable certainty in the statement of the crime suffices.

Under these conditions, the accused was fully apprised of the accusation against him. The information was not merely defective but it does not

All that is required is that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed and will enable him intelligently to prepare his defense, and if found guilty to plead her conviction, in a subsequent prosecution for the same offense.

charge any offense at all.

The purpose and objective of the constitutional mandate are discharged and satisfied.

Technically speaking, that information does not exist in contemplation of law." The accused may not be said to be taken by surprise by the failure of the information to state the age of the offended In an information for rape (committed before R.A. No. party, when he had received the initiatory complaint where he was told how old the offended party was. 7659) without alleging the age or complainant, the accused was convicted of statutory rape there being no objection to evidence or minority. Thus, even if the information did not allege that the victim was a mental retardate which is an essential element of the The information was not void but merely defective which is curable by evidence admitted without objection. The Substantial Compliance Rule It has been held that a complaint is under the Rules one of the two charging instruments for the offense of which the accused was tried and convicted here. crime of statutory rape, or the element of force and intimidation or the age of the complainant or the information merely states that petitioner was being charged for the crime of "violation of R.A. No. 7610" without citing the specific sections alleged to have been violated the Court treated the informations as merely defective and that the deficiency was cured either because the complaint supplied the omission or by the failure of the accused to assail the insufficiency of the allegations in the Information and by competent evidence presented during trial, and the accused cannot successfully invoke the defense that his right to While the criminal action was instituted by the complaint of the offended party, the information signed only by the fiscal ushered in the formal trial process. The Court did not consider the omissions sufficient to invalidate the information, holding that the character of the But both are accusations in writing against the accused and serve the purpose of enabling him to take the necessary legal steps for his defense. crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, as they may be conclusions of be informed is violated.

Effects of Fatally Defective Information Conviction or acquittal under a fatally defective information for want of certain essential allegation is not necessarily void when no objection appears to have been raised at the trial and the fatal defect could have been supplied by competent proof.

It was, however, held in Ilo, et al. v. Court of Appeals, that a substantial defect in the information cannot be cured by evidence, for that would jeopardize their right to be informed of, the true nature of the offense they are charged.

The Supreme Court applied the case of People u. Austria, holding that an information which does not charge an offense at all cannot be validated by the presentation of evidence. Said the Supreme Court: "(t)he petitioner contends that under the allegation in the information that the accused without authority of law, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control the firearms and ammunitions enumerated therein," the prosecution may prove that the accused carried the firearms and

33

law, but by the recital of the ultimate facts and circumstances in the complaint or information.

crime in either of the following manner: (1) by the use of the word "conspire" or its derivatives or synonyms, such as confederate, connive, collude, etc. or by allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts When Charged as a Mode of Committing the Crime

constituting conspiracy.

In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy.

The sufficiency of an information is not negated by an incomplete or defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which adequately depicts a crime and sufficiently apprise the accused of the nature and cause of.the accusation against him. (2)

Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy The requirements of the sufficiency of the information are different when conspiracy is not charged as a crime in itself but only as a mode of committing the crime as in the case of Plunder consisting of several predicate crimes. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the There is less necessity of reciting its particularities in the information because conspiracy is not the gravamen of the offense charged. An allegation of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. accused. of evidence that may be required to prove it.

The information may not refer to specific section/s of R.A. No. 7610 alleged to have been violated by the petitioner, but it is all to evident that the body of the information contains an averment of the'acts alleged to have been performed by petitioner which unmistakably refers to acts punishable under Section 5 of R.A. No. 7610.

As to which section of R.A. No. 7610 is being violated by petitioner is inconsequential.

What is determinative of the offense is the recital of the ultimate facts and circumstances in the complaint or information. Sufficiency of Allegations of Conspiracy In our jurisdiction, * * * conspiracy can be alleged in the Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself.

The conspiracy is significant only because it changes the criminal liability of all the accused in the conpsiracy and make them responsible as co-principals regardless of the degree of their participation in the crime.

Where conspiracy exists and can rightly be appreciated, The liability of the conspirators is collective and each participant will be equally responsible for the acts of the others. the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others.

When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure.

The

information

must

state

that

the

accused

have

confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused.

Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well.

Following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of the

Such an allegation, in the absence of the usual usage of the words "conspired" or the phrase "acting in conspiracy," must aptly appear in the information in the form of definitive acts

In the absence of conspiracy, so averred and proved an accused can only be made liable for the acts committed by him alone and this criminal responsibility is individual and not

34

collective

35

WHEN CONSPIRACY CHARGED AS A CRIME This is essential to avoid surprise on the accused and When conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information. To comply with these fundamental requirements of For example, the crime of "conspiracy to commit treason" is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. b. The failure, however, to designate the offense by statute or to mention the specific provision penalizing the act or an In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. c. The title of information or designation of offense is not controlling. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. It is the actual facts recited in the information that determines the nature of the crime. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof Need to Designate Statute Violated a. It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and cause of the accusation against him. Pursuant to the above, Section 6, Rule 110 of the Rules of Court, expressly requires that for a complaint or information to be sufficient, it must, inter alia, state the designation of the offense by the statute, and the acts or omissions complained of as constituting the offense. e. Allegations prevail over designation of the offense in the The real nature of offense is to be determined not by its designation or title given by the Fiscal but the facts alleged in the body of the Information. erroneous speficication of the law violated does not vitiate the information if the facts alleged clearly recites the facts constituting the crime charged. the Constitution and the Rules on Criminal Procedure, it is imperative for the specific statute violated to be designated or mentioned in the charge. to afford him the opportunity to prepare his defense accordingly.

information for conviction of accused who may therefore be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by the evidence.

SEC. 7. Name of the accused

The word "discovered" under the former rule was changed to "ascertained."

Error in the name or identity should be raised on arraignment. Purpose of Rule To enable the court to acquire jurisdiction over his person and to inform him of the facts.

Where the accused has been sued as John Doe in an information filed in due form, and after due investigation by the Fiscal, his identity became known, his true name may be inserted without further need of preliminary investigation where one had already been properly conducted pursuant to the charter of Quezon City and the nature of the crime is not changed.

d.

It is the province of the Court alone to say what the crime is or what it is named.

Even the justice of the peace, during the preliminary investigation of a case, is without authority to determine the character of the crime committed. His declaration upon the point is merely an opinion which in no wise binds the trial court.

Verbal motion to correct spelling is sufficient.

Where the accused Roberto Cultura was indicted in the information as "Jose" Cultura (his father's name), but it was clearly proven that he was part of the group that killed the victim and did not raise the question of his identity at the

36

arraignment and acquiesced to be tried under that name, he is deemed to have waived to raise the question of his identity for the first time on appeal. a. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. When the victim is under the custody of the police or military authorities.

R.A. No. 7659 (Death Penalty Law) Relationships which includes step-daughter and minority in incestuous rape are in the nature of qualifying circumstances, must be specifically alleged and proved to warrant imposition of death penalty.

SEC. 8. Designation of the offense

Omission cannot be cured by evidence. b. Hence, penalty should only be reclusion perpetual

SEC. 9. Cause of the accusation Amendment

c.

When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consangguinity.

The twin circumstances of minority and relationship under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of qualifying circumstances because they alter the nature of the crime of rape and increase the penalty.

d. The former rule did not require qualifying and aggravating circumstances to be alleged in the complaint or information. e. According to jurisprudence, aggravating circumstances proven by the evidence, although not alleged in the information, may be taken into account as such aggravating circumstances. f.

When the victim is a religious or a child below seven (7) years old. As special qualifying circumstances they must be specifically pleaded or alleged with certainty in the information; When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. The allegation that Irma is Nelson's niece is not specific When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. If the offender is merely a relation not a parent, ascendant, stepparent, guardian, or common law spouse of the mother of the victim the specific relationship must be alleged in the information, i.e., that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree." enough to satisfy the special qualifying circumstance of relationship. otherwise, the death penalty cannot be imposed.

Qualifying circumstances not alleged but proven are considered as aggravating. g. This is no longer true.

When by reason on the occasion of the rape, the victim has suffered permanent physical mutilation.

HISTORY OF AMENDMENT. Allegations to Warrant Death Penalty Pursuant to Section 11 of the amendatory statute (The Death Penalty Law), the death penalty may be imposed in rape cases under the last paragraph of Article 335 of the Revised Penal Code, when the rape is committed with any of the following attendant circumstances:

The concurrence of the minority of the victim and her relationship of the offender is a special qualifying circumstance which should both be alleged and proved with certainty in order to warrant the imposition of the death penalty. The informations in these cases merely allege that Irma is the "niece" of Nelson.

In these eight (8) cases, complainant never said she was below 18 years of age when she was allegedly raped by her father on any of the dates stated in the complaint.

She could be a niece beyond the third civil degree either of consanguinity or affinity.

Hence, the informations are fatally defective in this respect.

37

The factor that characterizes the charge is the actual

In People u. Nunez, the Court stressed: Strict application of the rule requiring the allegation of the qualifying circumstances mentioned in Section 11 of R.A. No. 7659 was further enunciated in People v. Dimapilis. While the Information there alleged that the victim was the stepdaughter of the accused, it was not accepted as a proper allegation of the qualifying circumstance that the accused was the "common law spouse of the parent of the victim" and the death penalty imposed by the trial court was once again reduced to reclusion perpetua.

Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant) and circumstances.

recital of facts.

The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated they being conclusions of law but by the actual recital of facts in the complaint or information.

In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged." It is essential therefore, that the accused be informed of the facts that are imputed to them as "as he is presumed to have no independent knowledge of the facts that constitute the offense." It imperative that the Information filed with the trial court

Taking into account the growing number of cases where qualified rape under Section 11 of R.A. No. 7659, although proven during trial, could still not be properly penalized because of defects in the Information,

The purpose of the rule is to fully apprise the accused of the true charge against him.

We urge the prosecuting fiscals who are charged with the responsibility of preparing Informations to state with particularity the attendant circumstances provided for under Section 11 of R.A. No. 7659.

The rule broadens the concept and scope of the right of the accused to be informed of the nature and cause of the accusation against him.

be complete to the end that the accused may suitably prepare his defense.

Corollary to this, an indictment must fully state the

More specifically, in qualified rape, both the fact of minority of the victim and the actual relationship between the parties, as worded in R.A. No. 7659, must be alleged in the Information.

The life and liberty of the accused should not be left to the ability or inability of his counsel to promptly object against the admissibility of what the law or rule requires to be specifically alleged.

elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused.

Otherwise, We shall continue to fail both the law and the victims whom the law have sought to protect.

The Court in People u. Mendez, cited the 1935 case of This was explained in U.S. v. Karelsen: People v. Oso, that the allegation of the complaint that the accused had carnal intercourse with the offended woman "The object of this written accusations was, "against her will" or "without her consent" is insufficient to warrant a conviction for rape, although the evidence proves the commission of the crime and reiterated the importance of duly informing the accused of the accusation against him as a constitutional right that cannot be taken lightly, more so, if the penalty to be imposed is grave, such as the forfeiture of his life.

Hence, the formulation of the foregoing rules that mandate not only the qualifying but also the aggravating circumstances to be specified in the information

The Rule now requires aggravating circumstances must not only be proven but it must also be alleged, otherwise, it should not be considered.

First: To furnish the accused with such a description of the charge against him as will enable him to make his defense; and

Retroactive Application of Rule The rule being remedial and favorable to the accused may be applied retroactively to pending cases. Purpose of Rule

Second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and

The essence of the constitutional right of the accused to be informed of the nature and cause of the accusation against him is that "every element of the offense must be alleged in the complaint or information" so as to "enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense."

Third to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had in order that this requirement may be satisfied, facts must be stated, not conclusions of law.

38

qualifying circumstances of relationship and minority is omitted In setting out the elements of a crime in the information or complaint, the pertinent provisions of the Rules on Criminal Procedure, specifically, Section 9 of Rule 110, provides the following guideline the cited provision is one of the many provisions in the Rules of Court that serves to implement the constitutional right of the accused to be informed of the charges against him. For rape to be qualified as heinous, warranting the imposition of the death penalty, the circumstances of the Relevant to this case is the phrase "a person of common understanding," which has its origin in this jurisdiction in the phrase "a person of ordinary intelligence."" Although a husband is subject to punishment by death in The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. case he commits rape against his wife's daughter, where the information alleged the accused, who is the stepfather of complainant, succeeded in having carnal knowledge of the latter who was then below eighteen years of age, but the evidence The raison d'etre of the rule is to enable the accused to suitably prepare his defense. shows that the accused is not the complainant's stepfather because he and complainant's mother were not really married but only lived in common-law relationship or where the charge is that the victim is the daughter of the accused when the evidence Without allegation of relationship in cases of statutory rape, proof alone of relationship unless specifically alleged in the information would not warrant imposition of the death penalty. shows that she is a mere stepdaughter or whether the relationship is by affinity or consanguinity in the third degree the death penalty cannot be imposed because the relationship alleged in the information is different from that actually proven Under existing jurisprudence, in the absence of proof of aggravating circumstance, the penalty should be reclusion perpetua and not death. Where there are two indivisible penalties if there is no aggravating circumstance the lesser penalty should be imposed.
[T]aking advantage of his superior strength over the person of his thirteen (13) year old (sic) daughter. . ."

between the victim and the accused because as phrased, they unduly lay stress on the generic aggravating circumstance of "taking advantage of superior strength."

or lacking, that which is pleaded in the information and proved by the evidence, like the complainant's minority, may be considered as an aggravating.

The Court further explained that:

Exact Relationship to be Alleged

"Be it in terms of syntax or composition, the wording of the informations is unable to sufficiently notify the accused, a person of common understanding or ordinary intelligence, of the gravity or nature of the crime he had been charged with, especially considering that the generic aggravating circumstance of taking advantage of superior strength is not even an element of the attendant circumstances treated under number 1 of the last paragraph of Article 335.

minority of the victim and her relationship with the offender must be both alleged in the information for rape.

The afore-quoted clauses in the informations can thus not be read nor understood as constituting a specific allegation of the special circumstances of relationship of father and daughter and that the daughter was less than 18 years of age at the time the crime of rape was committed."

Specific Allegation of Relationship and Minority Even if the information alleged that the victim is the natural daughter of the accused, where there is a difference in their surname, the mere testimony of the victim that the accused is his father is not sufficient to establish the qualifying circumstance of relationship, even if such relationship was not denied by the accused.

Where the informations alleged:

"[A]nd taking advantage of his superior strength over the person of his own daughter who is only thirteen years old.. ."

Granting that the relationship within the third civil degree either of consanguinity or affinity was duly proved during the trial, still such proof cannot be appreciated to justify the imposition of the death penalty because he would thereby be denied of his constitutional and statutory right to be informed of the nature and cause of the accusation against him.

The court may appreciate as an aggravating circumstance the victim's minority, which was pleaded in the informations and proved by her birth certificate.

the Court spared the life of the accused, despite the mention of the age of the victim and the word "daughter" in said informations, on the ground that the quoted informations failed to duly allege the special qualifying circumstances of the victim's minority and the relationship

Accused cannot be charged with committing the crime of rape in its simple form and then be tried and convicted of rape in its qualified form.

In those cases, when either one of the twin special

39

exemplary damages within the context of Article 2230 of the Exact Age of Victim must be Alleged The allegation in the information that complainant is the "minor daughter" of accused-appellant is insufficient. Rule on Exemplary Damages In line with the ruling in People v. Catubig, the qualifying circumstances of minority and relationship, though not specified in the complaint, can serve as basis for awarding exemplary As held in People v. Puertollano, the information must state the exact age of the victim at the time of the commission of the crime. To warrant the imposition of the death penalty, the qualifying circumstance of the rape victim being below seven years of age should be aptly alleged in the information. Although the rape was committed in 1997, before the Revised Rules on Criminal Procedure took effect, the court held that the retroactive application of the rules does not absolve accused from civil liability The fact of filiation and minority must be alleged in the accusatory portion of the information. deadly weapon is a qualifying damages. New Civil Code, even if the information or criminal complaint has not alleged said circumstances as required by the rule. In People v. Cachopero, the award of exemplary damages was deleted since the aggravating circumstances to justify the ward were not alleged and proved. THE MODIFYING CIRCUMSTANCES MUST BE ALLEGED NOT ONLY IN PREAMBLE BUT IN ACCUSATORY PORTION

Otherwise, the death penalty imposed by the trial court should be reduced to reclusion perpetua as provided for in the second paragraph of Art. 335 of the Revised Penal Code, as amended.

Thus,

the

use

of

The real nature of the criminal charge is determined not from the caption or the preamble of the information, nor from the specification of the provision of law alleged to have been violated x x x, but from the actual recital of the facts as alleged in the body of the information."

circumstance or when the crime is committed by two or more persons, the penalty is reclusion perpetua to death if the commission of the crime was attended by an aggravating circumstance.

COMPARE:

The use of a deadly weapon was considered as qualifying and not aggravating for purposes of imposing the death penalty which was, however, considered as aggravating to award exemplary damages. In People v. Caniezo the circumstance of deadly weapon was not alleged but proven and was considered as generic aggravating but did not make any difference in the imposition of the penalty since under Article 63 where the penalty involved are two indivisible penalties of reclusion perpetua and there are no qualifying circumstances, the single indivisible penalty of reclusion perpetua shall be imposed regardless of the aggravating circumstance.

Where relationship is not stated in the "cause of the accusation," or in the narration of the act or omission constituting the offense, but only in the preamble or opening statement of the complaint and the complaint upon which the appellant was arraigned does not state in the accusatory portion the specifications of the acts constitutive of the offense, that he is charged as the father of the victim.

It has, however, been held that where the information state that the offense was committed with the aggravating circumstances of insult or in disregard of the respect due the offended party on account of the fact the accused is the father of the complainant, properly plead the special circumstance of relationship of father and daughter that would enable a "person of sufficient understanding" to know what offense is intended to be charged.

Such omission is prejudicial to the right of the accused to be informed of the nature of the accusations against him. PLEA OF GUILTY INFORMATION TO ALLEGATIONS IN BODY OF

The accused could not have been misled by the wording of the informations.

Exemplary damages was, however, awarded. A person of ordinary intelligence could not plead with logic that he had no notice that he is being charged with the repeated rape of his fifteen-year-old daughter. Thus an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of

Thus, the plea of guilty is not on the offense alleged in the preamble but for the crime alleged in the accusatory portion of the information.

40

The fact that accused-appellant has not denied the Thus accused did not, in fact, plead guilty to a capital offense designated in the preamble but only to that part of the complaint that charges only simple rape under Art. 335, for which the penalty is only reclusion perpetua, and not for rape under R.A. No. 7659, qualified by the circumstance that the offender is the father of the victim who is a minor, for which the penalty is death. Any circumstance that would qualify or aggravate the crime charged must be specified in the information. Because of its failure to discharge this burden and the corresponding failure of the trial court to make a categorical finding Following the established rule that a penal statute, whether substantive or procedural, shall be given a retroactive effect if favorable to the accused, aggravating circumstances not alleged cannot be appreciated. NOT INVOLVING It is different with regard to the relationship of the offended party and accused-appellant, because the latter admitted APPLICATION TO ALL CRIMES IMPOSITION OF DEATH PENALTY Thus, where the aggravating circumstance of dwelling and abuse of confidence or obvious ungratefulnnes, nocturnity or Before the amendment the retroactive effect of nonallegation of aggravating circumstance even if proved is inapplicable for the crime of robbery, the same not involving the imposition of the death penalty. Although the information does not specifically allege treachery as a qualifying circumstance in the commission of the For said crime, what remains applicable is the old rule that generic aggravating circumstances if duly proven in the course of the trial could be taken into account by the trial court in determining the proper imposable penalty, even if such circumstances is not alleged in the information. crime, the allegation in the information that the victim was four years old at the time of the killing is sufficient compliance with section 6, Rule 110 of the Revised Rules of Criminal Procedure, as amended. Killing a child by an adult constitutes treachery even if the mode of attack by the assailant is not proved by the prosecution because a child of tender years could not be expected to put up a defense and hence at the mercy of his or her assailant. THE JUDGMENT MUST MAKE AN EXPRESS FINDING OF THE QUALIFYING CIRCUMSTANCES The decision of the trial court must contain an express and categorical finding that the complainant was below 18 years old when the crime of rape was committed to justify the imposition of the death penalty. MODIFYING CIRCUMSTANCES NEED NOT ALLEGE WITH SPECIFICITY WHETHER IT IS QUALIFYING OR AGGRAVATING It was earlier held that where the information, did not allege with specificity as qualifying the killing to murder (it merely alleged "with intent to kill, treachery and evident premeditation) although established by the evidence, under the present Revised Rules of Criminal Procedure, treachery has to be considered a generic aggravating circumstance only. This was reiterated in an en bane decision of the Court in People v. Manlansing, holding that where none of aggravating circumstances were alleged in the informations with specificity as a qualifying circumstance elevating the killing to murder, There must not only be proof of minority but also of the relationship between the accused and the victim. nighttime or treachery or abuse of superior strength not alleged in the information cannot be appreciated. Perforce, the death penalty imposed by the trial court in each of the eight (8) cases should be reduced to reclusion perpetua as provided in the second paragraph of Art. 335 of the Revised Penal Code, as amended. that complainant is his daughter. as to the minority of the victim, the qualifying circumstance of minority and relationship cannot be appreciated in these cases. The failure to allege the fact of filiation and minority in the information for rape is fatal and consequently bars conviction of its qualified form which is punishable with death. allegation in the complaints that Mylene was below 18 years of age when any of the crimes was committed cannot make up for the failure of the prosecution to discharge its burden.

He cannot therefore properly invoke Sec. 3, Rule 116, which requires reception of evidence on a plea to a capital offense.

The court clarified that with the amendment, the principle is now applicable in all criminal cases, not only in cases where the aggravating circumstances would increase the penalty to death.

The court, therefore gave fair warning to prosecutors that henceforth, they must prepare well-crafted informations that allege the circumstances qualifying and aggravating the crimes charged, otherwise the same will not be considered by the court in determining the proper penalty.

41

ascused should only be convicted of homicide. The words "aggravating/qualifying," "qualifying," "qualified This is no longer true. by," "aggravating," or "aggravated by" need not be expressly stated as long as the particular attendant circumstances are In a per curiam Resolution, the Court in People v. Aquino declared: The ruling was reiterated in People v. Paulina and People
We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the Information allege, specify or enumerate the attendant circumstances mentioned in the law to qualify the offense.

evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused.

specified in the Information."

Following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of the crime in either of the following manner: (1) by the use of the word "conspire" or its derivatives or synonyms, such as confederate, connive, collude, etc. or by allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts. In the absence of conspiracy, so averred and proved an accused can only be made liable for the acts committed by him alone and this criminal responsibility is individual and not collective. Conspiracy Charged as a Crime Thus, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information.

v. Garin holding that the appellant may no longer rely on the

3

rulings Alba and Manalansing because of the ruling in People v. Aquino and People v. Paulino. WHEN DEFECT IN INFORMATION SUBSTANTIAL COMPLIANCE RULE CURED: THE

(2)

These

circumstances

need

not

be

preceded

by

the

words

'aggravating/qualifying,' 'qualifying,' or 'qualified by' to be considered as qualifying circumstances.

The information must state that the accused have confedIt is sufficient that these circumstances be specified in the Information to apprise the accused of the charges against him to enable him to prepare fully for his defense, thus precluding surprises during the trial.

erated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused.

Such an allegation, in the absence of the usual usage of

When the prosecution specifically alleges in the Information the circumstances mentioned in the law as qualifying the crime, and succeeds in proving them beyond reasonable doubt, the Court is constrained to impose the higher penalty mandated by law.

the words "conspired" or "confederated" or the phrase "acting in conspiracy," must aptly appear in the information in the form of definitive acts constituting conspiracy.

This includes the death penalty in proper cases."

In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy.

Unfortunately, this is one of those cases.

For example, the crime of "conspiracy to commit treason" is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. * * * CONSPIRACY CHARGED AS MODE OF COMMITTING A CRIME The requirements of the sufficiency of the information are

The allegation of the twin circumstances of minority and relationship in the Information, which were proven beyond reasonable doubt during the trial, compels the Court to impose the death penalty. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. To guide the bench and the bar, this Resolution clarifies and resolves the issue of how to allege or specify qualifying or aggravating circumstances in the Information. In establishing conspiracy when properly alleged, the

42

different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case of Plunder consisting of several crimes. b.

or mentioned in the charge.

CRIME The foregoing doctrines refer to the special qualifying circumstances that are required to be specifically alleged in the information.

The failure, however, to designate the offense by statute or to mention the specific provision penalizing the act or an erroneous specification of the law violated does not vitiate the information if the facts alleged clearly recites the facts constituting the crime charged.

There is less necessity of reciting its particularities in the information because conspiracy is not the gravamen of the offense charged.

It would seem to be different when there is a mere variance in the mode of the commission of the crime.

The conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and make them responsible as co-principals regardless of the degree of their participation in the crime.

c.

The title of information or designation of offense is not controlling. A. Real Nature of Crime Determined by Facts Alleged in Complaint or Information and Not by Title a. What controls is not the designation of the offense but its description, and in the case of attending circumstances, not their denomination but their function. If the killing was committed with the attendance of any of the circumstances mentioned in Article 248 of the Revised Penal Code, then the offense committed is murder although they are mistakenly called aggravating in the information.

It is the actual facts recited in the information that determines the nature of the crime.

The liability of the conspirators is collective and each participant will be equally responsible for the acts of the others.

The real nature of offense is to be determined not by its designation or title given by the Fiscal but the facts alleged in the body of the Information.

a.

Need to Designate Statute Violated. d. It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and cause of the accusation against him. It is the province of the Court alone to say what the crime is or what it is named.

Even the justice of the peace, during the preliminary investigation of a case, is without authority to determine the character of the crime committed. b. His declaration upon the point is merely an opinion which in no wise binds the trial court.

They are qualifying circumstances nonetheless.

Pursuant to the above, Section 6, Rule 110 of the Rules of Court, expressly requires that for a complaint or information to be sufficient, it must, inter alia, state the designation of the offense by the statute, and the acts or omissions complained of as constituting the offense. e.

Thus, where the information characterized the killing as having been committed by taking advantage of superior strength, a circumstance which qualifies a killing to murder, the information sufficiently charged the commission of murder.

This is essential to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly.

Allegations prevail over designation of the offense in the information for conviction of accused who may therefore be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by the evidence. c. In a prosecution for robbery with rape, the fact that the information did not mention Art. 335 of the Revised Penal Code but Arts. 293 and 294 of that Code will not prevent conviction of an accused under Art. 335.

To comply with these fundamental requirements of the Constitution and the Rules on Criminal Procedure, it is imperative for the specific statute violated to be designated

EFFECTS OF VARIANCE IN MODE OF COMMISSION OF

The constitutional right of the accused to be informed of

43

the nature of the accusation against him is not violated thereby.

This principle was reiterated in People v. Torres, wherein the Court again held that it is not the technical name given by the Fiscal appearing in the title of the Information that determines the character of the crime but the facts alleged in the body of the information, where the accused charged with violation of General Order No. 6 for carrying with him an unlicensed firearm punishable with life imprisonment was held guilty under the Revised Administrative Code punishable by
"Having committed the offense criminally and feloniously, and with intent to kill" sufficiently avers discernment on the part of the accused who was a minor.

B.

Essential Elements Inferred from Allegation in Information

As former Chief Justice Moran pointed out: "If the above requirement is not complied with and no name has been given to the offense alleged to have been committed, the defect is merely of form which does not prejudice the substantial rights of the defendant.

While the general rule is that an inference in the complaint and conclusions such as "Grave abuse of confidence" are not allowed the following terms were interpreted by the Supreme Court is follows:

imprisonment of one to five years. This is especially so where the facts pleaded are clearly constitutive of a specific offense. c. Although the information charged the petitioner with estafa, the crime committed was theft. It is settled that what controls is not the designation of the offense but the description thereof as alleged in the information

In such cases, the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information. 5. This is so because from a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. The offense of fraud denned under the Revised Penal Code is malum in se, whereas B.P. Big. 22, also known as Bouncing Checks Law, is a special law which It in no way aids him in his defense on the merits. punishes the issuance of bouncing checks, a malum prohibitum. The real question is not that he did commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. Fraud or estafa under the Revised Penal Code is a distinct offense from the violation of the Bouncing Checks Law. C. B.P. Big. 22 cannot be deemed necessarily included in the crime of estafa under RPC, Article 315, 2(d).

"Willfully, unlawfully" covers "knowingly" in illegal fishing. Willful damage to property includes reckless imprudence.

"Deceit and promise of marriage was treated as mere surplusage in qualified seduction case."

"Intent to gain" is presumed to be alleged in an information where it is alleged that there was unlawful taking and appropriation by the offender.

Limitation on Rule that an Accused may be Convicted of a Crime which is More Serious than that Named in the Title so Long as the Facts Alleged the More Serious Offense (a) An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves: 1) a change of the theory of the trial; requires of the defendant a different defense; or surprises the accused in anyway.

If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute."

They are different offenses, having different elements.

2) 3)

Where appellant is accused of violating a particular provision of the Revised Penal Code on estafa, she may not be convicted for violation of B.P. Big. 22 without trenching on fundamental fairness. (b) Illegal construction Where the information for illegal construction does not specifically describe and locate

44

the building alleged to have been illegally constructed, it is fatally defective because it is impossible on its face to identify the house allegedly constructed without the necessary building permit.

The general rule is that an accused cannot be convicted of a different mode of the commission of the offense charged in the information.

of force or intimidation.

Appellant was charged with rape committed by means offeree or intimidation.

Where the law distinguishes between two cases of It can be quashed. violation of its provision, an information for violation thereof must specify under which of the two cases, the defendant In several cases, the accused whose guilt beyond reasonable doubt, although affirmed by the Supreme Court, escaped lethal injection because of the failure of the prosecution to specifically allege the qualifying circumstance of relationship or age in heinous crimes. stands accused of. Where the accused is charged with rape committed thru force and intimidation, he can not be convicted of rape committed under paragraph 2 of Article 335 when the woman is deprived of reason or otherwise unconscious, except when there is no objection. The Supreme Court therefore urged the prosecuting fiscals to state with particularity the fact of minority and the actual relationship between the parties as worded in R.A. No. 7659. It must be spelled out in more concrete terms. It was likewise held that the accused cannot be This is what the amendment seeks to accomplish. convicted under paragraph 2 or 3 of Article 335 of the Revised Penal Code, because none of the modes of committing rape specified therein were alleged in the The amendment did not, however, limit the requirement to qualifying circumstances but also included To convict him under either of these informed of the accusation against him. statutory The court held that the absence of an allegation in the information of this mode of committing the crime of rape was deemed waived by the absence of an objection and the Thus in convicting appellant, the trial court relied upon The requirement would also prevent a repetition of the errors by the prosecutors in Republic v. Asuncion, Arceo v. Cunanan, People u. Magallanes and Lacson u. Executive Secretary, where the prosecution failed to specify the qualifying facts that the crimes were committed in relation to their public office. Appellant was charged with rape committed by means This contradicts the allegation in the information. a finding that complainant was unconscious when the appellant had carnal knowledge other. The Court cited People u. Abiera, holding that the accused charged with rape through one mode of commission may still be convicted of the crime if the evidence shows another mode of commission, provided that the accused did not object to such evidence. presentation of evidence to the contrary. aggravating circumstances. Information. However, in People u. Atienza, involving the rape of a 13-year old minor charged with rape committed in 1996 by force and intimidation there was no objection to evidence of subnormal mental incapacity (that is, her mental capacity was equivalent to an 8 year-old). provisions is to deprive him of the constitutional right to be Where there is no aggravating circumstance, the penalty is reclusion perpetual It was held that an accused cannot be convicted of rape of a mental retardate if this is not alleged in the information. It cannot be made the basis of conviction, without violating appellant's right to due process, in particular to be informed of the nature of the accusation against him. The element of unconsciousness on the victim's part was not alleged much less specified in the information. Otherwise put, his offense fell under Article 266-A(1) of the Revised Penal Code.

But in convicting him of rape committed while his victim was supposedly unconscious, the trial court applied Article 266-A(l)(b) of said Code.

45

Accordingly, appellant can be convicted of the crime Failure to object to evidence of the mode of charged through either the second or third circumstance of committing such crime. OBSERVATIONS: LIMITATION ON WAIVER a. There is waiver and conviction allowed based on evidence even if not alleged in the information, citing separate opinion of then now C.J. Davide in People v. Moreno, on waiver of constitutional right to be informed of nature and cause of accusation. The information in the foregoing cases charges an offense but allowed waiver because of a variance between the allegation and proof in the mode of commission of the offense without any objection. commission of crime different from that alleged in the information is considered a waiver:

accused-appellant did not touch upon this point when something more valuable than any property that a person could ever in herit in his lifetime is in danger of being taken away eternally.

It is elementary that the existence of waiver must be positively demonstrated since a waiver by implication cannot be presumed.

The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences."

In this case, the accusatory portion failed to specifically allege that the rape was committed through force or intimidation, the prosecution was able to establish by evidence without any objection that the accusedappellant that tended to prove that he committed the rape by force and intimidation.

Where the information charges no offense at all or would result in convicting the accused for a more serious offense than the offense charged waiver for failure to object should not be allowed.

There must thus be persuasive evidence of an actual intention to relinquish the right.

The court itself stated that the rules on the validity or invalidity of a waiver are not something we have crafted overnight to suit the instant case.

Mere silence of the holder of the right should not be easily construed as surrender thereof; the courts must indulge every reasonable presumption against the existence and validity of such waiver.

b.

Similarly, in People v. Orbita, the Information against accused-appellant alleged that he had carnal knowledge of the victim by means offeree, violence and

They have been extant since time that is now immaterial to recall. Necessarily, where there is a reservation as to the nature of any manifestation or proposed action affecting the right of the accused to be heard before he is condemned, certainly, the doubt must be resolved in his favor to be allowed to proffer evidence in his behalf. Hence, in Intestate Estate of the Late Vito Borromeo v. Borromeo, this Court set aside the waiver of hereditary rights because it was not clearly and convincingly shown that the heir had the intention to waive his right or advantage voluntarily. Our criminal rules of procedure strictly provide the stepby-step formula to be followed by courts in cases punishable by death.

intimidation, against the latter's will and consent.

It did not allege her mental state.

In civil cases, we overturn decisions because the waiver of certain rights was not done in accordance with the requisites.

During the trial, however, the prosecution proved that the victim is a mental retardate and the accusedappellant was convicted under paragraph 2 of Article 335 of the Revised Penal Code.

Although initially deficient, the criminal complaint was deemed corrected when the prosecution introduced In criminal cases where life, liberty and property are all at stake, obviously, the rule on waiver cannot be any less. The reason for this is to ensure that the constitutional presumption of innocence in favor of the accused is preserved and the State makes no mistake in taking life and liberty except In this light, we are at a loss why counsel de oficio for that of the guilty. evidence of the complainant's mental condition and the defense did not object, thereby waiving the procedural defect.

46

Hence, any deviation from the regular course of trial should always take into consideration that such a different or extraordinary approach has been undertaken voluntarily and intelligently.

dreary work rather than protect the rights of his client.

information which charges the accused of raping his six year-old daughter or committing acts of lasciviousness on her, or of committing sexual abuse against her 11-year old daughter.

Of course, it may be stretching the argument too much to ascribe fatal incompetence upon herein accused's counsel for this solitary instance of faux pas.

For otherwise, as in the instant case, denial of due process can be successfully invoked since no valid waived or rights has been made. done. But, for sure, we must inquire if the waiver was validly

Waiver is not allowed where the information charges no offense.

An indictment must fully state the elements of the The Court noted with deep regret the failure of the trial court to inquire from accused-appellant himself whether he wanted to present evidence; or submit his memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any; or in default thereof, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. In People v. Donato," the Court expounded on what rights and privileges may be waived, viz.: For an accused cannot be convicted of an offense, "Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.
"While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver."

specific offense alleged to have been committed.

even if duly proven, unless it is alleged or necessarily included in the complaint or information

b.

Waiver is not allowed where the qualifying circumstance is different from the qualifying circumstance alleged in the information.

The inquiry is simply part and parcel of the determination of the validity of the waiver, i.e., "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." which ought to have been done by the trial court not only because this was supposed to be an uncomplicated and routine task on its part, but more importantly since accusedappellant himself did not personally, on a person-to-person basis, manifest to the trial court the waiver of his own right.

Where the accused alleged to be the father of the victim who is under 18 years of age is charged with rape under paragraph 2 of Article 266-A punishable by reclusion temporal he cannot be convicted of rape under paragraph 1 of Article 266-A punishable by death, even if this was duly established.

While it is established that rights may be waived, Article 6 of bhe Civil Code explicitly provides that such waiver is subject to the condition that it is not contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. c.

Waiver is not allowed where it would result in a more serious penalty.

As things stand, both this Court and the trial court being asked hook, line and sinker to take the word of counsel de oficio whose own concern in that particular phase of the proceedings a quo may have been compromised by pressures of his other commitments.

Thus, in the following cases, waiver was not allowed as it would violate the constitutional right of the accused to be informed of the nature and cause of the accusation against him, and, consequently, a denial of due process.

Under sections 8 and 9, Rule 110 failure to allege aggravating or qualifying circumstances, even if proved without objection cannot be availed of to qualify or aggravate the offense charged.

For all we know, the statutory counsel of the indigent accused at that time of the trial, although not evident in the other aspects of his representation, only wanted to get rid of a. An accused cannot be convicted of rape or acts of lasciviousness or of violation ofR.A. No. 7610 under an The court ruled that the relationship and minority of

47

the victim are special qualifying circumstances which cannot be considered unless specifically alleged in the information.

be alleged.

language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the indictment founded upon the statute must allege enough to show that the accused is not within the exception. And, when the evident intent and purpose of the statute is to prohibit and penalize generally an act as, for instance, the smoking of opium, and the statute desires to withdraw from its operation a limited class of persons, one charged with its violation is bound to show that he falls within the exception, whether the excepting proviso is found in the enacting clause or in a separate provision of the statute.

An exception in a penal statute by which certain particulars The right to be arraigned cannot be waived. There can be no trial in absentia without arraignment which must be in the presence of the accused. are withdrawn from or excepted out of its enacting clause, defining a crime concerning a class or species, need not be denied in an information charging a violation of said statute.

Variance, however, on date of commission of rape is irrelevant. Habitual delinquency A mere statement of habitual delinquency is a conclusion of law and a plea of guilty to such an information does not make the accused a habitual delinquent. The information should specify the dates: (1) of the commission of previous crimes; (2) of the last conviction or release; and (3) of the other previous conviction or release of the accused. ABSENCE OF ALLEGATION OF RECIDIVISM AND HABITUAL DELINQUENCY In the Absence of allegations in Information of Recidivism and Habitual Delinquency the evidence was properly objected to as inadmissible. Similarly, the qualifying circumstance of treachery must be specifically pleaded or alleged with sufficient clarity as to be readily understood and not merely deduced. Negative and Excepting Allegations When an exception or negative allegation is not an ingredient of the offense and is a matter of defense it need not

And where a denial is unnecessarily alleged in the information, it need not be proved by the prosecution, for it is not an essential element of the violation charged, but a matter of defense which must be proved by the accused if he relies upon it.

A negative allegation of recruiting without a license, forms For instance, the Opium Law provides that "save upon the prescription of a duly licensed and practicing physician, veterinarian, or dentist, no person shall inhale, snuff, chew, swallow, inject, or otherwise take or use any such drug in his body or permit the same to be used upon him by another." (1) "Without necessary license" is an ingredient of violation of Circular No. 60 of the Central Bank prohibiting the import In an information charging a violation of this statute, it is not necessary to allege that the person charged is not under the exception contained in the statute, i.e., that he did not use the prohibited drug upon the prescription of a physician, veterinarian or dentist, nor is it necessary to prove such allegation if made unnecessarily, because said exception is a matter of defense which the accused must prove. To determine whether the exception is or is not a matter of defense, the following test has been approved: If the language of the law defining the otfense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to said exception, the pleader may then safely omit such reference, as the exception is a matter of defense which must be shown by the accused.
Where the law distinguishes between two cases of violation of its provision, an information for violation thereof must specify under which of the two cases the defendants stands accused of.

an essential element of the crime charged. Hence, it was incumbent upon the prosecution to satisfactorily establish the date when the complainant was recruited.

and export of Philippine coins and notes.

(2) Want of Certificate to practice medicine is an essential element of the crime of illegal practice of medicine.

(3) In illegal possession of firearm, the information must allege that accused has no license to possess firearm.

An accused charged with murder by means of stabbing cannot be convicted of homicide thru drowning, otherwise, his constitutional right to be informed of the nature and cause of the accusation against him would be violated, so also a person may not be convicted of qualified seduction where the information charges him with rape by means offeree, violence and

If, however, the exception is so incorporated with the

48

intimidation.

Venue in criminal cases is an essential element of jurisdiction.

within the period of the statute of limitation and before the commencement of the action.

Inference in complaint and conclusions are not allowed. "Grave abuse of confidence" is a conclusion of law. Robbery with Homicide Failure to state in the information that the killing of the victim was committed "by reason of or on occasion of the robbery," does not bar conviction of accused of the special complex crime of robbery with homicide. Whenever alleged. possible, the place where the written To determine venue in libel cases, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at the time. Where the complaint for rape charges accused with having committed the crime "on or about the month of June 1978" and the affidavit shows that it was committed for "sometime prior to said period and subsequent thereto," attaching thereto the affidavit of the complainant that she was abused before the start of classes in June 1978 which may thus be considered as part of the complaint, the discrepancies between the accusation and the complaint as to the time of occurrence of the carnal copulations in rape do not affect the essential rights of the accused, where the acts occurred within the period of time alleged in both writings, and the difference noted in other respects was of a That SEC. 10. Place of commission of the offense Purpose of Rule: TO SHOW TERRITORIAL JURISDICTION. Crimes Where Place is Essential a. b. c. d. Violation of domicile; Penalty on keeper, watchman and visitor of an opium den ; Trespass to dwelling; Violation of election law, e.g., 30 meter-radius carrying of deadly weapon prohibited. a. b. c. The remedy is a motion for Bill of Particulars under Rule 116, Sec. 6. Venue of Criminal Action for Written Defamation Crimes Where Time is Essential Infanticide;' Violation of Sunday Statutes (Election Law); and Abortion. The complaint must allege a specific time and place when and where the offense was committed, but when the time so alleged is not of the essence of the offense, it need not be proved as alleged, and the complaint will be sufficient if the evidence shows that the offense was committed at anytime It was held that the complaint was sufficient to sustain a conviction even if the proof showed that it was committed in (1) that the crime was committed at any time within the period of limitation and (2) before or after the time stated in the complaint or indictment and before the action is commenced. Thus, an information charging the commission of the crime of robbery in December 1902, was filed in March 19, 1903. "Time" of the commission of the offense was changed to "DATE." The evidence is admissible and sufficient if it shows: SEC. 11. Date of Commission of the Offense allegation would be a sine qua non if the formal, rather than a substantial, character. circumstances as to where the libel was printed and first published is used as the basis of the venue of the action. "About" is a very comprehensive term which when used with regards to time, may cover a considerable extent thereof.

defamation was printed and first published should likewise be

BUT in U.S. v. Smith it was held that the proof need not correspond to the allegation, unless the time and place is material and of the essence of the offense as a necessary ingredient in its description.

A general allegation in the complaint that the felony was committed within the jurisdiction of the court is sufficient.

49

January 1903. In case of offenses against property, the designation of the It was, however held, in U.S. v. Dickao, that an allegation from October 1910 to August 1912 is defective: name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified.
To allege in an information that the accused committed rape on a certain girl between October 1910, and August 1912, is too indefinite to give the accused an opportunity to prepare his defense, and that indefiniteness is not cured by setting out the date when a child was born as a result of such crime.

name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified.

In U.S. v. Kepner, the Court laid down the rule that when an offense shall have been described in the complaint with sufficient certainty as to identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant.

NAME OF OFFENDED PARTY IN OFFENSES AGAINST PROPERTY In Sayson v. People (supra), the petitioner vigorously maintains that he cannot be justifiably convicted under the information charging him of attempting to defraud Ernesto Rufino, Sr. and/or Bank of America because the totality of the evidence presented by the prosecution shows very clearly that the accused allegedly attempted to defraud Mover Films, Inc., a corporate entity entirely separate and distinct from Ernesto Rufino, Sr.

An information for bigamy must state the time and place of the second wedding.

Accordingly, in the aforementioned case, which had a factual backdrop similar to the instant case, where the defendant was charged with estafa for the misappropriation of the proceeds of a warrant which he had cashed without authority, the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the cheque, when in reality the bank which cashed it was the one which suffered a loss, was held to be immaterial on the ground that the subject matter of the estafa, the warrant, was described in the complaint with such particularity as to properly identify the particular offense charged.

Variance, however, on date of commission of rape is irrelevant.

Time is irrelevant in rape" and violations of the Dangerous Drugs Law cases.

He firmly asserts that his conviction was in gross violation of his right to be informed of the nature and cause of the accusation against him.

SEC. 12. Name of the Offended Party

Petitioner's claim is unavailing. In the instant suit for estafa which is a crime against The rule in this jurisdiction is that "variance between the property under the Revised Penal Code, since the check, which was the subject matter of the offense, was described with such particularity as to properly identify the offense charged, it becomes immaterial, for purposes of conviction of the accused, that it was established during the trial that the offended party was actually Mever Films, Inc., and not Ernesto Rufino, Sr. nor The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name. In case of offenses against property, the designation of the a. Other Cases Even if the names of offended parties are not alleged, if the offense belongs to the class of harmful ones (illegal practice of medicine), the victims of petitioner should be considered Bank of America as alleged in the information.

Name of Offended Party The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name.

allegations of the information and the evidence offered by the prosecution in support thereof does not of itself entitle the accused to an acquittal."

In crimes against property, the object taken or destroyed should be particularly described to properly identify the crime (if the name of the offended party is unknown).

50

as offended parties.

The information is defective when it charges two or more offenses.

setting out separately the findings of fact and law in each case. CASES WHERE INFORMATION CHARGES MORE THAN ONE OFFENSE An information is defective for duplicity where the accused is charged in one complaint for assaulting three (3) persons by different acts while they were asleep, an information which charges two violations of the Revised Penal Code contained in two separate provisions is duplicituous. An information for malversation of public funds through

b.

An erroneous allegation as to the person injured is of form which did not tend to prejudice any substantial right of the accused on the merits. The rule enjoining the charging of two or more offenses in an information has for its aim to give the defendant the necessary knowledge of the charge to enable him to prove his defense.

c.

The name of the offended party is, however, material in slander.

The State should not heap upon the defendant two or The act of insulting X is distinct from a similar act of insult against Y, even if the insult is preferred by the same person, in the same language, and at about the same time. Effects of Duplicity of Offenses Charged Where the accused is charged in one information with more than one offense and makes no objection to the information on the ground that it charges more than one e. The damage inflicted in estafa need not fall on the same person against whom deceit was directed. offense, the prosecution may properly submit evidence as to the commission of each and all offenses charged and the court may properly enter judgment for each and every offense proved and f. In robbery with violence against or intimidation of person, the allegation of the owner's name in the information is essential. A motion to quash that more than one offense charged should therefore be filed, otherwise it is deemed waived and the g. The omission of value in theft cases is not fatal. accused may be convicted for as many offenses charged and proved. impose the proper penalties for each offense. more charges which might confuse him in his defense.

falsification of public documents and loss and destruction of public documents for purposes of concealing a crime was held as defective. So is an information which charges estafa and falsification to conceal the defraudation.

d.

In robbery, ownership is not necessary.

a.

Inclusion of Different Acts of Offenses to Complete Narration of Facts

Where the different acts or specifications charging the accused with having committed the offenses charged therein were included in the information merely to describe and to narrate the different and specific acts, the sum total of which constitutes a crime, the validity of the information cannot be assailed on the ground that it charges more than one offense, because those different acts or offenses may serve merely as a basis for the prosecution of one single crime."

h.

People v. Avellana, an information for murder is not defective where another's name not the victim's name is placed in the information. It is merely clerical.

Under Section 3, Rule 117, the accused may move to quash the complaint or information on the ground that more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses.

SEC. 13. Duplicity of the offense Purpose of Rule

Upon the other hand, when two or more offenses are charged in a single complaint or information, and the accused fails to object to it before trial, the court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them

In the case of U.S. v. Cernias, it was held that while it is true that each of those acts charged against the conspirators was itself a crime, the prosecutor in setting them out in the information did no more than to furnish the defendants with a bill of particulars of the facts which it intended to prove at the trial, not only as a basis upon

51

which to found an inference of guilt of the crime of conspiracy but also as evidence of the extremely dangerous and wicked nature of that conspiracy.

medicine and illegally advertising oneself as a doctor.

Held: That a complaint alleging these facts did not charge more than one offense.

Held: That the information was not bad for duplicity inasmuch as the acts charged were merely different means e. Treason of committing the same offense, notwithstanding the fact that they are prohibited by separate sections of the statute. A person accused of an offense is not charged by the number of counts or paragraphs, but by the specific criminal c. Single act that Violates Different Statutes acts regardless of their number contained in one paragraph or in one count. A single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense. A person accused of an offense is not considered as having been charged by the number of counts or paragraphs into which the acts charged may have been grouped in the information, but by the specific criminal acts The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for "the same offense." two (or more) offenses arising from the same act are not "the same." charged, even if two or more of them are contained in one paragraph or in one count.

The charge is not defective for duplicity when one single crime is set forth in the different modes prescribed by law for its commission, or the felony is set forth under different counts specifying the way of its perpetuation, or the acts resulted from a single criminal impulse.

Neither is there duplicity when the other offense described is but an ingredient or an essential element of the real offense charged nor when several acts are related in describing the offense.

b.

Single Offense Committed by Different Means

It is "a well-settled rule in considering indictments that where an offense may be committed in any of several different modes, and the offense, in any particular instance, is alleged to have been committed in two or more modes specified, it is sufficient to prove that it be such as to constitute the substantive offense," and the defendants, may, therefore, be convicted if any one of the substantive charges into which the complaint may be separated has been made out.

While it is convenient that each count or paragraph should contain only one offense or one specific act of treason for the sake of clearness, this does not justify the inference or claim that all of the acts charged under one count or paragraph should be considered as only one act of offense, and proof of all the acts included therein is each necessary to prove the charge.

The Rules prohibit the filing of such Information to avoid con fusing the accused in preparing his defense.

Here, petitioner

however, with four

the

prosecution with

charged

offenses,

each

Information f. Effect of Failure of the Prosecution to Prove All Acts Charged Where Each Act Constitutes Treason by Itself

charging only one offense.

It is not objectionable, when a single offense may be committed by the use of different means to charge in the alternative, the various means by which the crime may have been committed.

d.

Falsification If a person is being charged with four specific acts The defendant, a municipal treasurer, received from different persons for personal cedulas more than the amount allowed by law falsified the records of his office so that they showed the receipt of the lawful amount only, and in his monthly statements to the provincial treasurer made similar false statements. under one count, and each constitutes a complete act of treason by itself independently of the others, the failure of the prosecution to prove all does not entitle the accused to be acquitted of the whole count or of all the charges contained therein when any one or more of the acts are proved.

Thus, the defendant was accused of the violation of the Medical Law.

The information charged both illegal practice of

52

proved beyond reasonable doubt. g. Robbery in Band There is, however, complex crime of murder with frustrated murder where a single shot hit both victims. An information which charges the commission of "robbery in a band or brigandage" and alleges facts showing the commission of an act of robbery by a band of robbers, simply sets out the same fact in different aspects and is not bad for duplicity. Each incident of sexual intercourse and lascivious acts with a child under the circumstances mentioned in Republic h. The Anti-Graft Law Act No. 7610 is a separate and distinct offense. b. j. Violation of Child Abuse Law a. The single larceny rule 1) 2) 3) 4) Theft of 13 cows; theft of six roosters; illegal charging of fees by lawyer from revenue victims; Illegal approval of the application for the legalization of stay of 32 aliens, constitutes only one crime

The concept was not applied 1) 2) 3) In Estafa committed on different occasions. In Malversation and falsification on different ocassions The 75 estafa cases was committed by conversion by agent of collection from different customers on different dates. 4) 5) Robbery and fencing are two separate crimes. Principle of Delito Continuado is not applicable. In a Single Information for murder for shooting three persons where evidence did not show that a single shot had slain three different persons, the appellant was properly held liable for three separate murders and sentenced perpetrua. 6) In People v. Ducay several victims dying from separate shots constitute separate offenses and if there is no objection for duplicity, the accused should be convicted of all offenses charged in one information. to three separate penalties ofreclusion

Section 3(e) of the Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness by the use of the phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence."

THE PRINCIPLE OF DELITO CONTINUADO

Justice Quiason explains the Principle of Delito Continuado (continuing crimes) in Santiago v. Garchitorena. In this case, 32 Amended Informations for violation of the

They merely describe the different modes by which the offense penalized in Section 3(e) of the statute may be committed, and the use of all these phrases in the same information does not mean that the indictment charges three distinct offenses.

Anti-Graft Law alleged that the offenses were committed on the same period of time, i.e., on or about October 17, 1988 favoring 32 aliens.

The

several

acts

were

considered

by

the

court

as

constituting only one crime. i. Murder with Double Less Serious Physical Injuries For delito continuado to exist, there should be a plurality of Where in describing the offense of murder with double less serious physical injuries, the information states that appellant "feloniously attack, assault and shoot for several times the victims," it in effect charged accused with several distinct and separate crimes, as it is the allegations or actual recitals in the information rather than the technical description of the crime that controls. In appearance, a delito continuado consists of several crimes but in reality there is only one crime in the mind of the The defective information not having been timely objected to, however, said defect of duplicity of charges cannot be heard belatedly on appeal and accused may be convicted of as many offenses as are charged therein and Examples of Delito Continuado. perpetrator. acts performed during a period of time, unity of penal provision violated, and unity of criminal intent or purpose, which means that two or more violations of the same penal provisions are united in one and the same intent or resolution leading to the perpetration of the same criminal purpose or aim.

It is not the act of pressing the trigger like a Thompson submachine them. The firing of several bullets by the accused although resulting from one continuous burst of gunfire, constitutes several acts. Each person fell by different shots, is a victim of a separate crime of murder. gun that determines the number of felonies committed, but the number of bullets which actually produced

53

attempted murder. Exceptions to Rule on Duplicity The rule on duplicity of offenses does not apply where the law prescribes a single penalty for various offenses such as a complex crime under Article 48 of the Revised Penal Code or special complex crime such as Robbery with Homicide or with Rape or Rape with Homicide, or Rebellion complexed with murder, robbery and kidnapping. Rule on Complex Crimes The precise language of the statute used in alleging the commission of the crime is not necessary as long as in charging the commission of a complex offense like that of Robbery with Homicide, the information alleges each element of the component offenses with the same precision that would be necessary if they were made the subject of a separate prosecution. Where, however component offenses are not alleged in the information as required by Sections 8 and 9 of Rule 110 they cannot give rise to a special complex crime, consistent with the Thus, although the phrase by reason or on occasion of the robbery as provided for by the Revised Penal Code, was not literally used in the recital of facts alleging the commission of the two crimes of robbery with homicide, the information as filed sufficiently and distinctly alleges the commission of the two crimes of robbery and homicide and adequately informs the accused of the crime charged. When each one of the two deceased was killed by different and separate sets of shots, fired respectively, through two Under Article 48 of the Revised Penal Code, when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. WHEN ONE OFFENSE IS NECESSARY MEANS FOR COMMITTING THE OTHER a. b. Falsification of cedulas to commit malversation. Estafa thru falsification. independent sets of acts of the accused, each one aimed exclusively at a victim, for each victim killed, there is a separate and independent crime of murder. No Duplicity in Rape With Homicide There is no duplicity in an information for rape with homicide. A complex crime is committed when two persons are killed as a result of the same murderous act of the accused. Accused who abducted the victim and had sexual intercourse with her for several days is not guilty of separate offense but the continuing offense of abduction with rape. 2) Robbery with homicide and rape only one crime. right of the accused to be informed of the nature and cause of the accusation against them. It is sufficient that the information contains allegations which state that one offense was a necessary means to commit the other. For a criminal complaint or information to charge the commission of a complex crime, the allegations contained therein do not necessarily have to charge a complex crime as denned by law. If the acts are so disconnected as to constitute separate and distinct offenses or crimes, then of course, it would not be error to charge each of said acts in different complaints but where the acts are so related as to constitute in fact but one offense, then a complaint will not be defective if the crime is described by relating two acts in the description of one offense. The information in question in the present case contains allegations properly charging the commission of the complex crime of incriminatory machinations through unlawful arrest, and the court a quo committed error when it ordered its dismissal. To be a complex crime, the offense must be a necessary means for committing the other, but if one offense is to conceal the other, the accused may be convicted for both offenses as in case of arson to conceal homicide or falsification to conceal malversation. OTHER CASES: 1) Killing of four victims on the same occasion of the robbery is robbery with quadruple homicide only one crime. When two or more acts combined in the commission of one crime, the complaint is not necessarily defective because it contains a description of two acts.

The throwing of a hand grenade at the President with the intention of killing him resulting in the death and injuries of several persons constitutes the complex crime of murder with Where seven persons committed rape with homicide in

54

conspiracy with each other, every one of the seven accused may separately be charged for rape with homicide.

reason of the sale, and that the sale agreed upon was the sole reason for the possession of the opium seized.

On petitioners' claim that the charge for violation of Article 365 of the RPC "absorbs" the charges for violation ofP.D. No. 1067, P.D. No. 984, and R.A. No. 7942, suffice it to say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating P.D. No. 1067, P.D. No. 984, and R.A. No. 7942).

There is no duplicity in a charge of estafa committed by the accused for misappropriation of the purchase price of several lots owned by the Hometrust Corporation which were fraudulently received by the accused against seven lot buyers on the pretext that she was authorized to do so and which she misapplied to her personal use instead of remitting the money to the owner corporation, and seven other separate informations of estafa committed against the seven lot buyers.

2)

When Possession of Drugs Absorbed in Sale

In People v. Lacerna, possession of marijuana was held as absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller.

What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them. REBELLION CANNOT BE COMPLEXED WITH ANY OTHER OFFENSE COMMITTED IN THE COURSE THEREOF The celebrated case of Enrile v. Salazar, reiterated the Hernandez Rule, which ruled out the complexing of rebellion witl-any other offense committed in its course under either of the clauses of Article 48 of the Revised Penal Code either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.

The crime of estafa committed against the corporation and those committed against the lot buyers are definitely separate felonies.

Where aside from selling one block of marijuana to the arresting officers, accused-appellants were also caught in possession of another 12.04 kilograms of marijuana in twelve individually wrapped blocks, hidden in a bag under a table in their house.

They were dictated by different criminal intents, committed under different modes of commission provided by the law on estafa, perpetrated by different acts, consummated on different occasions, and caused injury to different parties.

Their possession thereof gives rise to a disputable presumption under Section 3(j), Rule 131 of the Rules of Court, that they were the owners of the same.

a.

The Principle of Absorption b. 1) Drugs Cases Where complainant was forcibly taken away for the In People v. Salamat, the illegal possession of 137 cans of opium and sale of 37 cans of opium was held as two isolated acts and not one, each of which is punishable in themselves. The trial court, thus, correctly held that the rape charged and proved in Criminal Case No. 44263 already Only in the event where all the amount of the opium possessed and seized be in its totality the same as that which was possessed with the sole purpose of being delivered as the matter or subject of a sale previously agreed upon, could it be said that the possession of the opium was a necessary means to effect the delivery by c. Absorption does not include special laws absorbed the forcible abduction with rape complained of in Criminal Case No. 44264. purpose of sexually assaulting her, then the rape so committed may absorb the forcible abduction. Forcible Abduction Absorbed in Rape

The rule was reiterated in Enrile u. Amin, where the Supreme Court ruled that the crime of Harboring or Concealing a Criminal was absorbed by the crime of rebellion for which Senator Enrile had already been charged and can not therefore be made the subject of a separate criminal action.

The Supreme Court went on to explain: "The crime of rebellion consists of many acts.
It is described as a vast movement of men and a complex net of intrigues and plots. Jurisprudence tells us that acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion.

55

In this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient of rebellion or an act done in furtherance of the rebellion.

hence, prosecution under one law will not bar a prosecution under the other. Petitioner's alleged act of harboring or concealing which was based on his act of conspiring with Honasan was committed The Court held that: "This argument is specious in rebellion cases." in connection with or in furtherance of rebellion and must now be deemed as absorbed by, merged in, and identified with the crime of rebellion punished in Articles 134 and 135 of the RPC. In the light of the Hernandez doctrine, the prosecution's theory must fail. Thus, jurisprudence The rationale remains the same. national, as well as favor international the laws and that overwhelmingly proposition

It cannot therefore be made the basis of a separate charge. The case of People v. Prieto is instructive."

In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action.

common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses, and assume the political complexion of the main crime of which they are mere ingredients and consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.

Its very nature partakes of a deed or physical activity as opposed to a mental operation. This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or provision.

All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate crimes in themselves.

Even so, when the deed is charged as an element of treason it becomes identified with the latter crime and can not be the subject of a separate punishment, or used in combination with treason to increase the penalty is Article 48 of the Revised Penal Code provides.

This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the

EFFECT OF FAILURE TO OBJECT TO PROSECUTION FOR ILLEGAL POSSESSION

INDEPENDENT

In People v. Elias Rodriguez, the accused, after having pleaded guilty and convicted of the crime of rebellion, faced an independent prosecution for illegal possession of firearm.

Just as one can lot be punished for possessing opium drug, in a prosecution for smoking the identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because 3ossession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive ingredient of reason. THE PRINCIPLE OF ABSORPTION IN REBELLION APPLIES TO SPECIAL LAWS The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a special law while the rebellion case is based on the Revised Penal Code;

Revised Penal Code.

The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. The Court ruled: "An examination of the record, however, discloses that the crime with which the accused is charged in the present case which is that of illegal possession of firearm and ammunition is already absorbed as a necessary element or ingredient in the crime of rebellion with which the same accused is charged with other persons in a separate case and wherein he pleaded guilty and was convicted Conceding the absence of a complex crime of rebellion with murders, etc., still, by his plea of guilty, the accusedappellant has admitted all the overt acts described in the

These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping, etc., as provided in the Revised Penal Code.

The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.

56

information; and that if any of such acts constituted an independent crime within the jurisdiction of the lower court, then the averment in the information that it was perpetrated in furtherance of the rebellion, being a mere conclusion, cannot be a bar to appellant's conviction and punishment for said offense, he having failed, at the arraignment, to object to the information on the ground of multiplicity of crimes charged." Enrile Doctrine Not Applicable in Subversion In People v. Asuncion, it was held that the crime of illegal possession of firearms under P.D. No. 1806 is not absorbed in the charge of subversion under R.A. No. 1700.

the crime. With either of these elements wanting, the crime of rebellion legally does not exist. R.A. No. 8294 amended P.D. No. 1866 abandoned previous rulings that qualified use of firearms and murder are In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, etc., were accomplished for private purposes or profit, without any political motivation, it has been held that the crime would be separately punishable as a common crime and would not be absorbed by the crime of rebellion. ILLEGAL POSSESSION OF FIREARM KILLING WITH THE USE THEREOF AND UNLAWFUL Under the present rule, the unauthorized use of licensed or unlicensed firearm is simply an aggravating circumstance in the commission of homicide or murder and no longer a separate offense, effectively modifying People v. Quijada, and its progeny. separate offenses.

Thus, it has been held that the principle of absorption does not apply to illegal possession of firearms in connection with the crime of subversion but simply describes the mode or manner by which the violation of Section 1 of P.D. No. 1866 was committed so as to qualify to the penalty of death. The charge should therefore be amended to simple illegal

An accused may, moreover, be charged with as many Political Motive Must Be Shown In People u. Louedioro, the court held that divested of its common complexion, any ordinary act, however, grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. Thus, where a single act is directed against one person but said act constitutes a violation of two or more entirely distinct and separate provisions of the Revised Penal Code or by a specified law as the RPC, the prosecution of one is not a bar to In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. There is no complex crime of illegal possession of Firearm The political motive of the act should be conclusively demonstrated. used in Homicide but they may be filed separately (qualified illegal possession of firearm is only one offense). the other, but such crimes should be alleged in separate information. crimes as defined in our laws even if these arose from one incident.

possession of firearm, and was accordingly deemed amended by the Supreme Court. It should, however, be noted that under existing laws (R.A. No. 8294) if homicide or murder is committed with the use of an unlicensed firearm, such use of unlicensed firearm shall be considered merely as an aggravating circumstance and cannot be the subject of a separate prosecution. THE PRESENT FIREARMS LAW ON ILLEGAL POSSESSION OF

In such cases, the burden of demonstrating political motive falls on the defense, motive being a state of mind which the accused, better than any individual knows.

People v. Deunida, reiterated the same principles, but pointed out that the use of unlicensed firearm must be alleged, otherwise, the crime is only murder. Abandonment of Doctrine In case homicide or murder is committed with the use of

Where murder or homicide results from the use of an unlicensed firearm, the crime is no longer qualified illegal possession, but murder or homicide, as the case may be.

It is not enough that overt acts of rebellion are duly proven.

In such a case, the use of the unlicensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance.

Both purpose and overt acts are essential components of

unlicensed firearm, such use of unlicensed firearm shall be merely considered as aggravating.

57

In view of the amendments introduced by Republic Act No. 8294 to Presidential Decree No. 1866, separate prosecutions for homicide and illegal possession are no longer in order.

Hence, he cannot be convicted of any of these crimes without violating his right to be informed of the nature and cause of the accusation against him, not to mention his right to due process.

separate

informations,

under

existing

law,

the

provisions

considering the use of an unlicensed firearm in the commission of the crime as aggravating cannot be given a retroactive effect, lest it would acquire the character of an ex post facto law.

Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance in the homicide case. Following the doctrine enunciated in People v. Molina and People v. Lazaro, among others, the possession of firearms The crime of illegal possession of firearm, in its simple form, is committed only where the unlicensed firearm is not used to commit any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup d'etat. As the law stands today, there can be no longer be a separate conviction of the crime of illegal possession of firearms Otherwise, the use of unlicensed firearm would be treated either: 1) as essential ingredient in the crimes of rebellion, insurrection, sedition or attempted coup d'etat; or as an aggravating circumstance in murder or homicide. THE LAW HAS A RETROACTIVE EFFECT ONLY IF IT IS FAVORABLE TO THE ACCUSED R.A. No. 8294 is given retroactive effect in the sense that The same may only done where no other crime is committed. the use of unlicensed firearm in the commission of a crime is considered merely as an aggravating circumstance and not as a separate crime. The provisions of R.A. No. 8294 may be applied retroactively so as to prevent conviction of the separate crime of illegal possession of firearm because this accrues to the benefit of the appellant. It is only when the new law will be advantageous to the accused that the Law may be given retroactive effect, such as when it will spare him from a separate conviction for the crime of illegal possession of firearm. Illegal Possession As Separate offense Thus, where at the time accused was charged in two Accused-appellant was not arraigned for homicide or murder. separate informations, one with robbery with homicide with the use of an unlicensed firearm punishable with reclusion perpetua to death and another for the use of an unlicensed firearm punishable by death, the existing law allows the filing of the It does not, however, mean that there can no longer be any prosecution for the crime of illegal possession of firearm. It cannot, however, be applied retroactively to aggravate the crime of homicide or murder. under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Since this is favorable to the accused, it shall be given Instead, illegal possession of firearms is simply taken as an aggravating circumstance in murder or homicide pursuant to Section 1 of R.A. No. 8294. 2) Thus, while it is true that under R.A. No. 8294, the use of an unlicensed firearm aggravates the crimes of homicide or murder, the provisions of the said law cannot apply to the case at bar because the crime was committed prior to the effectivity of the said law on July 6, 1997. retroactive effect. On the separate charge of illegal possession of firearm, this is not allowed under the new law. against accused-appellant merely as an aggravating Hence, the penalty should be reclusion perpetua. circumstance. Should the Court appreciate the use of an unlicensed firearm, the higher penalty of death shall be imposed.

Neither can accused-appellant be charged with simple illegal possession.

An accused cannot be convicted of homicide or murder with "the use of the unlicensed firearm as aggravating," inasmuch as said felonies are not charged in the information but merely mentioned as the result of the use of the unlicensed firearm.

58

In general, all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved (murder or homicide under Section 1 and rebellion, insurrection, sedition or attempted coup d' etat under Section 3. "From the viewpoint of trial practices and justice, it is, to say the least, doubtful whether the prosecution should split the action against the defendant, by filing against him several informations, namely, one for damage to property and serious and less serious physical injuries, thru reckless negligence, before the Court of First Instance, and another for slight physical injuries thru reckless negligence before the justice of the peace or municipal court. One thing is, however, certain.
Such splitting of the action would work unnecessary inconvenience

crimes and prosecution.

The rule was clarified in People u. Cano: It was, however, held in Lontok, Jr. v. Gorgonio, that if one offense is light, there is no complex crime. Separate informations must be filed. Example: Damage to property in sum of P780.00 and Slight Physical Injuries thru Reckless Imprudence cannot be made in a single information if slight physical injuries prescribes, it must be dismissed. Without mentioning Lontok, Jr. v. Gorgonio, the Supreme Court in Buerano v. Court ofAppeals, reiterated the rule in People v. Buan

Thus, where the other offense charged in a Criminal Case for violation of COMELEC Resolution No. 3045 is not one of those enumerated under R.A. No. 8294, the respondent judge was correct in not quashing the information in the Criminal Case.

It was however, made clear in the en bane decision in Agote u. Lorenzo, that there can be no separate conviction for illegal possession of firearm where another crime was commited at the same time for instance, violation of the COMELEC resolution on gun ban even if the firearm was not being actually used or discharged, holding that there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as illegal possession of dangerous drugs. Reckless Imprudence Cases Where both damage to property with less serious physical injuries were caused by one single act of defendant, the information cannot be split into two one for physical injuries and another for damage to property.

to the administration of justice in general and to the accused in particular, for it would require the presentation of substantially the same evidence before two different courts, the municipal court and the Court of First Instance.

Worse, still, in the event of conviction in the municipal court and appeal to the Court of First Instance, said evidence would still have to be introduced once more in the latter court."

Reiteration of Lontok v. Gorgonio:

The Court in Reodica v. Court ofAppeals, 97 held that reckless

As stated in People v. Buan: Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act.
For the essence of quasi-offense of criminal negligence is the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony.

imprudence resulting in slight physical injuries and damage to property is not a complex crime and cannot be the subject of a single information, they are separate offenses subject to distinct penalties, reiterating the ruling in Lontok u. Gorgonio.

The two offenses cannot be complexed because each offenses is not a grave or less grave felony.

The two offenses may, however, be consolidated since under the expanded jurisdiction of the municipal trial courts damage to property thru reckless imprudence now falls under its jurisdiction. SEC. 14. Amendment or Substitution

If there is damage to property only, the amount fixed therein should be imposed but if there are also physical injuries, there should be an additional penalty for the latter.

The law penalizes thus the negligent or careless act, not the result thereof.

The gravity of the consequence is only taken into account to

The information cannot be split into two; one for physical injuries and another for the damage to property, for both the injuries and the damages committed were caused by one single act of physical injuries and damage to property.

determine the penalty, it does not qualify the substance of the offense.

And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different

AMENDMENT EXPLAINED: WHEN LEAVE OF COURT BEFORE PLEA REQUIRED

59

However, once a motion to dismiss or withdraw the Under the former rule, amendment whether as to form or substance is a matter of right before plea. Once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the The rule was, however, amended by requiring "any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court." Thus, the complaint cannot be withdrawn by the Fiscal The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. The provincial fiscals are not clothed with power, without the consent of the court, to dismiss or nolle prosequi criminal The amendment is designed to remove the absolute control of the prosecution of a criminal action after the filing of information even before a plea is entered which seems to be the case as provided for in the first sentence of the first paragraph that the complaint or information may be amended, in substance or form, without leave of court, at any time before the accused pleads; however, under the amended rule, any amendment before plea, which lessens the gravity of the offense charged and/or excludes any of the accused from the complaint or information, must be filed with leave of court and the parties, especially the private complainant shall be duly furnished copies of the order resolving the motion therefor and explaining the reasons for such disposition. The Supreme Court stressed, however, that the real and ultimate test of the independence and integrity of the trial court is not the filing of the motions to suspend proceedings and defer arraignment at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. The amendment under the second par may only be made especially with notice to the offended party. This is in accord with the ruling in Crespo v. Mogul, It is intended to prevent the prosecution from abusing the process of amendment before plea by dropping any of the accused from the information or reducing the offense charged whether the accused had been arraigned or not and whether it was due to a reinvestigation of the fiscal or a review by the Secretary of Justice, similar to what happened in the case of Dimatulac u. Vilon. Court Must Make Independent Assessment Before that time, the pronouncement in Crespo v. Mogul that "once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction of the accused or acquittal of the accused rests in the sound discretion of the court, did not yet become relevant or applicable." An information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect. Only a valid information may be amended. What may be Amended The power to dismiss is vested solely in the court, i.e., the presiding judge. actions actually instituted and pending further proceedings. FINDING OF GRAVE ABUSE OF DISCRETION AND NOTICE TO PARTIES In the absence of a finding of grave abuse of discretion, the court's denial of a motion to withdraw information pursuant to the Secretary's resolution is void. For this reason the amendment requires parties, especially the private complainant to be duly furnished copies of the order resolving the motion therefor and explaining the reasons for such disposition. without the court's consent. The only qualification is that the action of the Court must not impair the substantial rights of the accused, or the right of the people to due process of law. What is imperatively required is the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept or reject the prosecution's word for its supposed insufficiency or to simply rely on Crespo u. Mogul. Court. information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution.

60

Time to Amend Amendment of an information may be made at any time before the accused enters a plea to the charge."

The amendment in a libel case which merely specifies the specific address in Makati where the libelous articles were first printed and published is merely formal. Change of Dates of Commission of Crime

The phrase "on or about" employed in the information does not require the prosecution to "prove any precise date which is not so remote as to surprise and prejudice the defendant.

The prosecution is free to amend the information without leave of court before arraignment. Provided, the amendment does not downgrade the nature of the offense charged or excludes any accused from the complaint or information. TEST AS WHEN RIGHTS OF ACCUSED PREJUDICED BY AMENDMENT days, The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is, when a defense under the complaint or information as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would no longer be available after the amendment is made, and when any evidence the accused might have would be inapplicable to the complaint or information as amended. The amendment of the complaint for rape changing the date of commission of the crime alleged in the original On the other hand, an amendment which merely states with additional precision something which is already contained in the original information, and which therefore, adds nothing essential for conviction for the crime charged is an amendment as to form that can be made at any time. Under Section 10 of Rule 110 of the Rules of Court "it is An amendment which neither adversely affects the not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the date of the offense was committed as the information or complaint will permit." substantial right of the accused, e.g., does not deprive him of his right to invoke prescription nor affects and/or alters the nature of the offense originally charged nor involves a change in the basic theory of the prosecution so as to require the accused to undergo any material change or modification in his defense is an amendment as to a matter of form. information from February 13, 1976 to February 5, 1976 as testified to by the complainant, a difference of only eight (8) days was only a matter of form and did not prejudice the rights of the appellant. Nor will the amendment or correction cause any surprise on the accused, who has been furnished the affidavits of the prosecution witnesses, all of which uniformly state that the date of the commission was August 28, 1981. Thus, the change in the date of the commission of the crime of Grave Coercion from June 24, 1981 to August 28, 1981 is more formal than substantial and would not prejudice the rights of the accused, as the said proposed amendment would not alter the nature of the offense of grave coercion.

In case of surprise, the Court may allow an amendment of the information as to time and an adjournment to the accused, if necessary to meet the amendment."

In the case of People u. Riuera, the amendment of the information as to the date of the commission of the offense from March 2, 1964 to March 2, 1965 which was due to a clerical error in the last digit of the year, the difference of one year or twelve months was merely a matter of form and does not prejudice the rights of the accused, reiterating the ruling in the case of U.S. v. Ramos, where the Fiscal was permitted to amend the date of the commission of the offense from June 16, 1910 to June 1911. Rule Not Applicable Where Disparity is Great The petitioner's argument that the time or date of the commission of the offense is not a material ingredient of the crime of qualified theft cannot be given much weight in this case because the disparity of time between the years 1964 and 1969 is so great as to defy approximation in the commission of one and the same offense.

The difference in dates is only about two months and five which disparity is amply comprehended within the allegation of "on or about."

While it has been held that except when time is a material ingredient of an offense, the precise time of commission need not be stated in the information, this court stated that this does not mean that the prosecution officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether or that he may make the allegation so indefinite as to amount to the same thing.

61

The

prosecution

is

given

the

chance

to

allege

an

of an opportunity to produce evidence for their defense if they had desired, in relation to said amendment "Consequently, the accused is not thereby denied any opportunity to present evidence in his defense."

jurisdiction of the court. All other matters are merely of form. Habitual Delinquency Additional allegations of habitual delinquency and

approximation of time of the commission of the offense and the precise date need not be stated but it does not mean that it can prove any date remote or far removed from the given approximate date so as to surprise and prejudice the accused.

The foregoing cases should, however, be distinguished In Arevalo u. Nepomuceno, the amendment which was allowed was the allegation in the information that B carried the revolver and C, the knife, instead ofC carrying the revolver and B, the knife. The difference in date could not be attributed to a clerical error because the difference is not only in the year but also in In People v. Joseph Casey, the amendment after the month and the last two digits of the year, and the difference "is so great as to defy approximation in the commission of one and the same offense." Discharge to be State witness under Witness Protection Rule The foregoing rule applies in withdrawing or discharging to be a state witness before plea some accused under the witness protection rule without the need of proving the requirement for the discharge of a state witness despite a pending motion for their discharge under Section 17, Rule 119 unless they are retained in the information in which case section 17, Rule 119 is the applicable rule. arraignment was to include one of the accused Ricardo Felix alias "Carding Tuwad" who was then armed with a firearm. from the case of People u. Opemia, where the difference in dates was from 1947 to 1952.

recidivism is not a substantial amendment.

They do not have the effect of charging another offense different or distinct from the charge of qualified theft contained in the information.

Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case.

The Supreme Court, after stating the test as to whether a defendant is prejudiced by the amendment, stated that: "A look into our jurisprudence on the matter shows that an amendment to an information introduced after the accused has pleaded not guilty thereto, which does not expose the accused to a charge which could call for a higher penalty, does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance not prejudicial to the accused and, therefore, not prohibited by Section 13, Rule 110 of the Revised Rules of Court.

The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction.

They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume Additional Allegations of Conspiracy In Regala v. CFI, the defendant was charged with murder.

In U.S. v. dela Cruz, the amendment in the information for brigandage sought to be made was to eliminate the words "led by one Silverio" and to substitute the words "under the command of Luciano San Miguel" after the prosecution rested but before the presentation of the evidence of the defense. PROHIBITED AMENDMENTS; WHAT ARE SUBSTANTIAL AMENDMENTS Amendments that are prohibited after the accused has pleaded are amendments in substance. And the substantial matters in the complaint or information is the recital of facts constituting the offense charged and determinative of the

After accused.

the

plea,

the

fiscal

presented

an

amended

information wherein two other persons were included as co-

There was the further allegation that the accused and his co-defendants had conspired and confederated together and mutually aided one another to commit the offense charged.

The Supreme Court allowed the said amendment holding that it did not prejudice in any sense the right of the accused as "it did not affect the essence of the crime charge, but merely an accidental detail of the same" and it did not deprive the accused

The admission of the amendment was upheld by the Supreme Court holding that the amendment is a mere matter of

62

form. After a reinvestigation, the prosecution moved to amend In People v. Zulueta, an information for Malversation of public property was amended with the additional assertion that in permitting the misappropriation, the accused acted in The Supreme would Court, not citing Regala, the held that the amendments prejudice accused whose conspiracy with Commissioner Llanes who was subsequently booked for malversation of the identical property also in the same court. the information with the inclusion of two other accused alleging conspiracy.

participation as principal in the crimes charged did not change.

The Supreme Court held that there was a substantial amendment.

In People v. Montenegro, the accused was charged with robbery before the CFI of Quezon City and entered a plea of not guilty.

Surely, the preparations have to be radically modified to meet the new situation. Before the trial could proceed, the fiscal sought to amend the complaint: For undoubtedly, the allegation of conspiracy enables the prosecution to attribute and ascribe to the accused all the acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in furtherance of the controversy. 1) 2) 3) from robbery to robbery in an uninhabited place; alleging conspiracy among all accused; and deleting all items, articles and jewelries alleged to have been stolen in the original information substituting them with a different set of items.

The amendment thereby widens the battlefront to allow the use by the prosecution of newly discovered weapons, to the evident discomfiture of the opposite camp. The Supreme Court citing and quoting People v. Zulueta (supra), held that the allegation of conspiracy among all the private respondents-accused which was not previously included The Supreme Court distinguished the case from Regala by explaining that the amendment therein did not modify the basic theory of the prosecution that the accused had killed the deceased by a voluntary act and deed. in the original information is a substantial amendment saddling the respondents with the need of a new defense in order to meet a different situation in the trial court.

Here there is an innovation, or the introduction of another alternative imputation, which, to make matters worse, is inconsistent with the original allegations.

In People v. Court of Appeals, the accused Sixto Ruiz who was charged with murder entered a plea of not guilty.

63

AMENDMENTS AFTER PLEA CHANGING THE NATURE OF OFFENSE CHARGE IS PROHIBITED The Supreme Court held that the proposed amendments in the amended information are clearly substantial and have the effect of changing the crime charged from "Robbery" punishable under Article 209 to "Robbery in an Uninhabited Place" punishable under Article 302 of the Revised Penal Code, thereby exposing the private-respondent accused to a higher penalty as computed to the penalty imposable for the offense charged in the original information to which the accused had already entered a plea of "not guilty" during their arraignment.

Addition of Intent to Gain Where intent to gain could already be inferred from the allegations of the information, an amendment which merely states with additional precision something which is already contained in the complaint for robbery, and which therefore adds nothing essential to the conviction for the crime charged is a formal amendment and can be made at any time. AMENDMENT TO ALLEGE OFFENSE COMMITTED IN RELATION TO OFFICE It has been held that after the case of homicide committed

Amendment to Conform to Evidence Allowed Amendments to conform to the evidence to be presented during the trial is permissible. MISTAKES TO CONFORM TO EVIDENCE AMENDMENT BY SUBSTITUTION If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided, the accused would not be placed thereby in double jeopardy.

Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different articles from those originally complained of affects the essence of the imputed crime, and would deprive the accused of the opportunity to meet all the allegations in the amended information, in the preparation of their defenses to the charge filed against them.

by

PNP

officer

was

transferred

by

the

RTC

to

the

Sandiganbayan after trial, on the ground that the offense was committed in relation to the public office of the accused and, therefore, falls under the jurisdiction of the Sandiganbayan, an amendment to allege that the offense of homicide committed by a member of the PNP was committed "in relation to his office" may be made at any time before arraignment before the Sandiganbayan, and indeed by leave of court at any time before judgment is rendered by the Sandiganbayan, considering that such an amendment would not affect the juridical nature of the offense charged (i.e., murder), the qualifying circumstance alleged in the information, or the defenses that accused may assert before the Sandiganbayan.

Section 11 of Rule 119 provides that 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 charge, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him.

It will be observed that private respondents were accused as accessories after the fact of the minor who had already been convicted of robbery of the items listed in the original information.

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 offense.

To charge them now as accessories after the fact for a crime different from that committed by the principal, would be manifestly incongruous as to be allowed by the court. In other words, the amendment may be made before the Sandiganbayan without surprising the accused or prejudicing his substantive rights. An amendment deleting the word "orally" from a charge of grave threats to conform to the evidence is merely a formal amendment since it did not affect the nature of the crime as originally charged. Where the amendment was not substantial, no second plea The particular manner in which the threat made is not a qualifying ingredient of the offense. is necessary. NO NEED OF ARRAIGNMENT WHERE AMENDMENT MERELY FORMAL

The rule, therefore, does not apply where the accused may be convicted of any other offense necessarily included in the offense charged.

Where the original complaint for rape charged her father with the crime of rape allegedly committed on or about the 13th day of February but during the trial, the complaining witness testified that she was raped by her father on February 5 of the same year, there was no need for the court to dismiss the original complaint and direct the fiscal to file the proper

64

complaint.

also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights Be that as it -may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for homicide may also be dismissed before the accused pleads, to Hence, in the case of Dimalibot v. Salcedo, the accused give way to the filing of a new information for murder. therein were originally charged with homicide and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the witnesses for the prosecution, discovered that the killing complained of was perpetrated with the qualifying circumstances victim. of treachery, taking advantage of superior That is from the filing of the information up to and before trial, while amendments during trial and be fore judgment is governed by Section 11, Rule 119 when a mistake has been Consequently, an amended information for murder was filed against the accused who were ordered re-arrested without the amount of bail being fixed, the new charge being a capital offense. Perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other than on motion of the accused, namely, The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus: "Here, these rules properly apply, since it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder.
Upon the authority of said rules, the amendment could therefore be made even as to substance in order that the proper charge may be made.

The trial judge could have simply granted the motion for leave to amend the complaint.

of the accused.

1) 2)

Amendment and Substitution Distinguished Scope of Rule

In Galvez v. Court of Appeals the Supreme Court thru Justice Regalado extensively discussed amendments by substitution of a defective information by the correct one.

The above section contains two parts: One authorizes the amendment of an information or complaint (involving the same offense or an offense which necessarily includes or is necessarily included in the first information) in substance or form, without leave of court, at any time before the defendant pleads, and thereafter, only as to matters of form.

strength, and employing means to weaken the defense of the

made in charging the proper offense.

The other provides that, if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense (substitution), provided the defendant would not be placed in double jeopardy.

Section 14 of Rule 110 and Section 11 of Rule 119.

But then, it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense, but make no mention of a dismissal made upon application of the prosecution. That is not necessarily so.

Explaining Section 14 of Rule 110, the Supreme Court stressed: "The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint.
Under the second paragraph, the court can order the filing of another information to charge the proper offense, provided, the accused would not be placed thereby in double jeopardy and that could only be true if the ofifense proved does not necessarily include or is not necessarily included in the offense charged in the original information."

(a) Rule 119; Section 11, Court Initiates Substitution

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 or of one that it necessarily includes.

The claim that such amendment can only refer to matters of specification affecting the elements constituting the crime is not correct, for there is nothing in the rule to show that the nature of the amendment should only be limited to matters of specification.

It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may

The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant."

It 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.

65

which necessarily includes or is necessarily included in We do not discount the possibility of either the prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a rare situation. It necessarily follows, therefore, that the prosecutor This provision, therefore, is more directly and 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. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in In the subsequent case ofTeehankee, Jr. v. Madayag, (b) Rule 110, Section 14, Prosecutor Initiates Substitution et al., however, Section 14 of Rule 110 was clarified to mean as follows: Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof, provides in its second (now third) paragraph the procedure and requisites for the substitution of a defective information by the correct one. "It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: a. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original The situation under said Section 14 contemplates a longer time span, inclusive of the period from the filing of the information up to and before trial. c. Where the amendment is only as to form, there is no need for another preliminary investigation and the 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. retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. d. An amended information refers to the same offense charged in the original information or to an offense The second paragraph of Sec. 13 of the old Rule 110 was amended in 1985 as follows: "The court shall dismiss the origi nal complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 110, Sec. 11." information has to be dismissed; The foregoing pronouncements may be deemed to have been accordingly modified by the amendment to Section 14 in the sense that even before plea, the prosecution may not amend the information to, downgrade the offense charged or drop any of the accused from the information without leave of court. Dismissal Only After New One is Filed In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; Although, just like Section 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 x x x that a mistake has been made in charging the proper offense, x x x." b. otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order." the original charge, hence, the accused cannot claim double jeopardy. 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. 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. the original charge, hence, substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.

66

Whether the new charge for direct assault with less serious Both rules were clarified so that the dismissal of the original complaint or information would be done only after a new one has been filed. physical injuries is by way of amendment or through a new information is, immaterial since in both instances accused's former conviction would be a bar to a subsequent prosecution for the second offense. There is no double jeopardy if there is no identity of offenses. This was the dictum laid down in the case of People v. Bonotan, and which doctrine was reiterated in the case of Tacas If there is identity of offense, then the accused should be convicted of the offense charged necessarily included in the offense proven or of the offense proven necessarily included in the offense charged. SUBSTITUTION APPLIES ONLY WHERE NO JUDGMENT RENDERED The amendment or the filing of a new case where there had been a mistake in charging the proper offense after the dismissal of an existing one, spoken of and therein provided for apply, only to an original case where no judgment has as yet been rendered.
The converse is no less obvious, that is, the charge of direct assault upon a person in authority with physical injuries as set out in the information necessarily included the offense of less serious physical injuries charged in the complaint, especially because in both the information and the complaint, the physical injuries inflicted are alleged to have required "The charge of direct assault upon a person in authority with physical injuries contained in the fiscal's information is not included in the charge contained in the complaint of the chief of police, which is merely that of less serious physical injuries unqualified by any allegation that those injuries were inflicted upon the offended municipal councilor, admittedly a person in authority, while he was in the performance of his official duties or on the occasion thereof, a qualification essential to the offense charged in the information.

substitution of the original one may be allowed:

(a) that no judgment has as yet been rendered; (b) the accused cannot be convicted of the offense charged or of any other offense necessarily included therein; and (c) the accused would not be placed in double jeopardy.

v. Cariaso. Thus:

Thus, an amendment of the information to change the crime charged from Homicide to the more serious offense of murder after the accused had pleaded not guilty, not allowed.

To dismiss the homicide charged and file another charge for murder will place the accused in double jeopardy.

To amend the information so as to change the crime charged from homicide to the more serious offense of murder after the petitioner had pleaded not guilty to the former is indubitably proscribed by the first paragraph of the abovequoted provision.

For certainly, a change from homicide to murder is not a matter of form; it is one of substance with very serious consequence.

Much less does the said section apply to an appealed case. Subject to Rule on Double Jeopardy The reason is obvious and that is because the right to amend or to file a new complaint or information charging the proper offense after the dismissal of the original complaint or information is subject to the rule on double jeopardy.

medical assistance of a period of 14 days and incapacitated the offended party from labor for the same period of time.

As proof that the offense charged in the information includes the offense charged in the complaint, conviction of the defendants of this latter offense may, without question, be had under the information if the other ingredients of the crime charged in said information are not proved.

But can the amendment be justified under the second paragraph?

The answer is, No.

Hence, the defense of double jeopardy was well taken. The order of dismissal was thus affirmed precisely on the very same constitutional ground relied upon in this petition."

Where the original charge was that of less serious physical injuries, for which the accused was convicted, the prosecution cannot on appeal withdraw the case of physical injuries and file a case of direct assault.

For the provision speaks not of amendment but of dismissal of the information.

Limitation to Rule on Substitution In other words, the provision contemplates the filing of a There are thus limitations before a new information in substituted not an amended information.

67

c. But, it may be asked, can not the information for homicide against the petitioner be dismissed since no judgment has yet been rendered and another information for murder be filed? Consequently, although the offenses charged under the three new informations necessarily include those charged under the original informations, the substitution of informations was not a fatal error. The answer, again, is No. A contrary ruling, would sacrifice substantial justice for For the petitioner having pleaded not guilty to homicide, to dismiss the charge against him so as to file another charge for murder will place him thereby in double jeopardy. Furthermore, petitioners' right to speedy trial was never violated since the new informations were filed immediately after The principle does not apply where the information for homicide alleges "using superior strength" in which case, an amendment to murder even if the prosecution have already presented two witnesses maybe allowed as this is a mere formal amendment. Where a physical injury case has been filed before a Municipal Judge, but, after trial, he is of the opinion that a The body of the information already charges the crime of murder. NO DOUBLE JEOPARDY BEFORE ARRAIGNMENT WHERE WITHDRAWAL MADE frustrated murder was committed, he should decide the case on the merits and not order the filing of an information in the CFI. Duty of Judge to Render Decision the motion to withdraw the original information was granted. e. formal nuances on the altar of procedural technicalities. d.

In People u. Jaralba The Amendment consists of description of wound from lacerated to stab wound to conform to the evidence. There was no change of offense charged. No need to rearraign.

An Amendment to allege that co-accused who were minors acted with discernment is one of form as far as principal accused is concerned.

In People v. Padica, amendment as to correct name is merely a matter of form. Issue as to identity must be raised during arraignment in a demurrer on the ground of lack of jurisdiction over his person, otherwise there is estoppel or waiver.

SEC. 15. Place Where Action is to be Instituted. Improper Venue

It is the duty of the judge to render the decision as the evidence warrant under the information as filed for serious physical injuries, and not dismiss the case on his idea or belief that there was evidence of intent to kill the intended victim. In criminal proceedings, improper venue is lack of jurisdiction. Venue in criminal cases is an essential element of jurisdiction. Such order is void for having been issued with grave abuse of discretion amounting to excess of jurisdiction. Unlike in a civil case where venue may be waived, this could not be done in a criminal case because it is an element of a. In Teehankee v. Madayag An amendment from frustrated murder to consummated murder due to supervening event of death is merely formal. In criminal proceedings, the rule is that one can not be held to answer for any crime committed by him except in the b. The difference in serial numbers of firearms in case of illegal possession is fatal. Said rule is based on the legal provision which prescribes the essential requisites of a good complaint or information, one jurisdiction where it was committed. jurisdiction.

In Galvez v. Court of Appeals (supra), the propriety of the withdrawal of the original information for homicide before arraignment, was upheld there having been no grave abuse of discretion in granting the motion and, more importantly, in consideration of the fact that the motion to withdraw was filed and granted before petitioners were arraigned, hence, before they were placed in jeopardy.

Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had as yet attached.

68

of which is the allegation that the crime was committed within the jurisdiction of the court where the complaint or information is filed and that said court has authority to try it. As was said in the case of United States v. Cunanan, the jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases is limited to certain well-defined territory, so that they can not take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory.

complaint was not committed in the province wherein the trial was had, and the accused was not arrested in that province and defendant had not fled therefrom, the Court of First Instance of that province has no jurisdiction to impose sentence.

preliminary investigation which is a function of the Executive Department and not the Judiciary." PLACES WHERE ACTION MAY BE INSTITUTED GENERAL RULE a. In all criminal prosecutions the action shall be instituted and tried in the Court of the Municipality or territory wherein the crime was committed or where any one of the essential ingredient of the offense took place. Thus, subject to existing laws, the commission of an offense is, triable only in the courts of the place where the offense was allegedly committed.

In such cases, if the court has reasonable ground to believe that the crime has been committed, the accused should be remanded to the court of proper jurisdiction for trial Purpose of Rule

Judges of the court of the Court of First Instance of a district court must exercise their jurisdiction within the territorial limits of their provinces and no further.

A criminal case should be instituted and tried in the municipality or province where the offense was committed or any of its essential ingredients took place.

Jurisdiction or venue is determined by the allegations in the information which are controlling. When Place of Crime Not Alleged Where the place of the commission of the offense was not specifically charged, the place may be shown by the evidence.

If all the acts material and essential to the crime and This is a fundamental principle, the purpose being not to compel the defendant to move to, and appear in a different court from that of the province where the crime was committed, as it would cause him great inconvenience in looking for his witnesses and other evidence in another place." Power to Change Venue Where the convenience of the accused is opposed by that of the prosecution, it is but logical that the court should have the power to decide where the balance of convenience or Where defendant was charged with attacking a postal clerk in a moving train within the limits of Manila, it was claimed that the Court of First Instance of Manila was without jurisdiction, but as defendant offered no proof against such jurisdiction, the lower court was justified in taking jurisdiction. inconvenience lies, and to determine the most suitable place of the trial according to the exigencies of truth and impartial justice. Under the 1987 Constitution, the Supreme Court may b. In offenses committed on a railroad train, in an aircraft, or in any other public or private vehicle while in the course of its trip in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival. requisite of its consummation occurred in one municipality or province, the court of that municipality or province has sole jurisdiction to try the case.

Thus, the insufficiency of the complaint charging adultery without stating the place where the acts of adultery were committed, or that the accused knew the woman was married at the time of cohabitation, assigned as error as the conviction thereon amounted to a conviction without informing the defendants of the nature and character of the offense, and besides equivalent to a conviction without due process of law.

No such question having been raised before final judgment in the trial court, but every ingredient of the crime having been established in the evidence, there was no error committed upon which to base a reversal of conviction.

order a change of venue or place or trial to avoid a miscarriage of justice. c. "A petition for change of venue of the preliminary investigation should however, be addressed to the Secretary of Justice who has control and supervision over the conduct of a

Where the crime for violation of P.D. No. 532 known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 was committed aboard a jeepney, the criminal action may be instituted and tried in the court of any municipality or territory where the vehicle passed during the trip including

When the record discloses that the crime as alleged in the

69

the place of departure and arrival.

The act of carrying away the thing stolen is not an indispensable requisite of theft.

In transitory or continuing offenses, some acts material and essential to the crime occur in one province and some in another, in which case, the rule is settled that the court of either province where any of the essential ingredients of the crime took place has jurisdiction to try the case.

d.

In offenses committed on board a vessel in the course of its voyage in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of the international law. g. Where the offense charged was fully committed in the City of Manila where the automobile was allegedly stolen from its parking place in Port Area the fact that said automobile was later found in Rizal City is not an essential ingredient of the crime but a mere circumstance which could add nothing to Where the crime was actually committed is immaterial where the crime was committed while the vessel is in transit. Hence, criminal action. this circumstance cannot be made the nature of the offense or to its consummation.

Offenses are continuing or transitory upon the theory that there is a new commission, continuance or repetition of the offense wherever the defendant maybe found.

Such offenses may be tried by the Court of any jurisdiction in which the defendant may be found.

determinative of the jurisdiction of the trial court over the "In transit" simply means "on the way or passage" while passing from me place to another in the course of transportation. It was, however, held in a case that where the asportations of cigarettes commenced when they were In a prosecution under Act No. 55, regulating the transportation of animals on vessels, as amended by Act No. 275, the information need not allege that the court was sitting at a port where the animals were disembarked. taken out of dark Airbase and continued when the goods pushed through Valenzuela, Bulacan until they were seized in Quezon City, the Courts in any of these places had jurisdiction over the offense. Transitory and Continuing Offenses

In such a case, the complaint should alleged that the offense was committed within the jurisdiction of the court and not at the place where it was originally committed. The theory is that a person may be indicted in any jurisdiction where the offense was in part committed, it being understood that the first court taking cognizance of the case excludes the others.

e.

The place where the action is to be instituted is subject to existing laws "such as offenses which fall under the exclusive jurisdiction of the Sandiganbayan which may be instituted and tried only in the Sandiganbayan which is located at Quezon City.

In this jurisdiction, where the strict common law rules If all the acts material to the crime and requisite of the consumption thereof occurred in one municipality or territory, the court therein has the sole jurisdiction to try the case. touching the finding of indictments have no controlling influence, offenses committed partly in one province and partly in another, that is to say, where some acts material and essential to the crime and requisite to its consummation occur in one province and some in another, are triable in either province, and the appropriate courts in each province have concurrent jurisdiction of such offenses, distinguished, as to estafa, accounts collected in one place and to be paid over to principal in Manila; estafa committed by insurance agent, premiums collected in Iloilo but payable in Manila; estafa committed aboard a ship in Philippine Waters.

f.

In the earlier case of People v. Mercado, involving theft of large catties, it was held that where the accused stole the carabaos in Gapan, Nueva Ecija, and took them to Pampanga, where he was found, the crime is triable only in Nueva Ecija and not in Pampanga.

There are certain crimes in which some acts material and essential to the crimes and requisite to their consummation occur in one municipality or territory and some in another, in which event, the court of either has jurisdiction to try the cases, it being understood that the court taking cognizance of the case excludes the other.

The unlawful taking of a movable thing consummates in the crime of theft.

These are the so-called transitory or continuing crimes.

The theory upon which a person accused of a transitory or continuing offense may be tried in any jurisdiction within which

70

he is found is based upon the ground that there is a new commission of the same offense in the jurisdiction where he is found.

may be validly tried in any municipality or province where the offense was in part committed.

purpose, which means that two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim.

In transitory or continuing offenses in which some acts In such a case, the complaint should allege that the offense was committed within the jurisdiction of the court and not at the place where it was originally committed. material and essential to the crime and requisite to its consummation occur in one province and some in another, the Court of either province has jurisdiction to try the case, it being understood that the first court taking cognizance of the case will (Defendant, as an enlisted seaman in the Bureau of Navigation, accused of desertion in violation of Sec. 9 of Act No. 1980.) TRANSITORY DISTINGUISHED AND CONTINUING OFFENSES exclude the others. However, if all the acts material and essential to the crime and requisite of its consummation occurred in one municipality or territory, the court of that municipality or territory has the sole jurisdiction to try the case. ESSENTIAL ADULTERY REQUISITES OF CONTINUOUS CRIME; Bigamy being defined by Article 349 as the contracting "of a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding," it is self-evident that the place where The rule is that crimes "committed partly in one province and partly in another, that is to say, where some acts material and essential to the crime, and requisites to its consummation, occur in one province and some in another, are triable in either Example of this, are where the deprivation of liberty is persistent and continuing from one place to another or libel where the libelous matter is published or circulated from one place to another. This means that to make the offense triable in more than one province, the acts perpetrated in any one of them must be impelled by the same criminal purpose or aim. The term "continuing" must, however, be understood in the sense similar to that of "transitory" and is only intended as a factor in determining the proper venue or jurisdiction for that matter of the criminal action pursuant to Section 15, Rule 110. In People v. Zapata and Bondoc, it was held that adultery is not a continuing offense. To hold with the trial court that the celebration of the first "The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the law transgressors and in many a case, against the interest of society." For it to exist, there should be plurality of acts performed In other words, a person charged with a transitory crime separately during a period of time; unity of penal provision infringed upon or violation; and unity of criminal intent or Since the second marriage of the accused occurred in marriage was an essential ingredient of the bigamy is to assume that when the petitioner married his first wife, he did so with intent already to marry his second consort; and there is nothing on record to warrant such assumption. The continued existence of the first marriage is without definite locus. province. What is essential is that the first marriage be not legally terminated, actually or by legal presumption, when the subsequent wedlock takes place; and it is upon the celebration of that subsequent marriage that bigamy is committed, not before. the first marriage was celebrated is immaterial to the criminal act, intent and responsibility of the accused. IN BIGAMY, PLACE WHERE FIRST MARRIAGE WAS CELEBRATED IS IMMATERIAL In adultery, the last unity does not exist because the culprits perpetrate the crime in every sexual intercourse and they need not do another or other adulterous act to consummate it.

A transitory offense is one where any of the essential ingredients took place, such as abduction, while a continuing estafa, malversation and offense is one which is

consummated in one place, yet by reason of the nature of the offense, the violation of the law is deemed continuing.

This is so because persons charged with a transitory offense may be tried in any jurisdiction where the offense was in part committed to the exclusion of the other.

71

Davao outside the territorial jurisdiction of the respondent court, and in all criminal prosecutions, the actions must be instituted and tried in the municipality or province where the offense or any of its essential ingredients was committed, the Court of First Instance for the province of Iloilo is devoid of jurisdiction to take cognizance of the crime charged. Venue in Estafa a. A bicycle was purchased by the owner of a tobacco factory in the municipality ofObando, in the province ofBulacan, to be used by defendant, an employee, on condition that it was to be returned to the owner of the factory at the termination of his employment, in the municipality of Malabon, province of Rizal. Defendant sold the bicycle to a third person who lived in the municipality of Obando.

c.

C, entered into a contract at Manila, by virtue of which he was obligated to render accounts to his principal in Manila.

The theory is that a person indicted with a transitory offense may be validly tried in any jurisdiction where the offense was in part committed.

Under said contract, C collected certain moneys for his principal in Cebu and failed to account for same to his principal in Manila.

However, if all the acts material and essential to the crime and requisite of its consummation occurred in one municipality or province, such has the sole jurisdiction to try the case."

HELD: The court of Manila had jurisdiction over the offense of estafa committed, as the contract of employment was made in Manila.

The Place of Delivery of Check The place where the bills were written, signed, or dated does not necessarily fix or determine the place where they were executed.

d.

An agent who is entrusted with collecting payments on policies for an insurance company and who collects such a payment in Iloilo and appropriates the same to his own use there though by his contract, the premium collected were payable at the office of the company in Manila, may be tried for estafa in the Court of First Instance of Iloilo or of Manila.

What is of decisive importance is the delivery thereof the consummation as an obligation.

Defendant having failed to comply with his obligation to the owner of the bicycle in Malabon, the crime charged against him was committed in that municipality, and the justice of the peace in Malabon had jurisdiction to hear and determine the case. The general principles governing jurisdiction in cases of estafa punishable under Article 315, paragraph 2(d) of the Revised Penal Code have been defined in People v. Yabut, to wit: b. Estafa is a continuing or transitory offense which may be prosecuted at the place where any of the essential elements of the crime took place. "Estafa by postdating or issuing a bad check under Art. 315, par. 2(d) of the Revised Penal Code may be a transitory or continuing offense.
Its basic elements of deceit and damage, may independently arise in separate places.

An undelivered bill or note is inoperative.

Estafa by Issuing a Bouncing Check Until delivery, the contract is revocable. And the issuance as well as the delivery of the check must be to a person who takes it as a holder, which means "(t)he payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof."

Delivery of the check signifies transfer of possession, whether actual or constructive from one person to another with intent to transfer title thereto.

One of the essential elements of estafa is damage or prejudice to the offended party.

The venue of the offense lies at the place where the check was executed and delivered to the payee.

Where the respondent has its principal place of business and office in Manila, the failure of petitioner (accused) to remit the insurance premiums she collected caused damage and prejudice to private respondent in Manila, the Regional Trial Court of Manila has jurisdiction.

In the event of such occurrence, the institution of the criminal action in either place is legally allowed. Section 14(a), Rule 110 of the Revised Rules of Court provides: 'In all criminal prosecutions, the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place.

Where it was in Malolos, Bulacan where the checks were uttered and delivered to complainant at which place, her business and residence were also located, the criminal prosecution of estafa may be lodged therein.

72

The giving of the checks by the two private respondents in Caloocan City to a messenger and part time employee cannot be treated as valid delivery of the checks, because a mere "messenger" or "part-time employee" is not an agent of complainant. The Place Where Obligation Was Constituted The place where the obligation was constituted is also a valid basis for criminal jurisdiction to attach in a prosecution for estafa.

handed and delivered to the sales supervisor of SMC, Mr. Ruben Cornelio, who holds office in that municipality.

As Regards the Bouncing Check The offense also appears to be continuing.

The two checks were deposited by SMC at the BPI, San Fernando, Pampanga, where it maintained its accounts after receiving these checks from its Guiguinto Sales Office which bank later on made the corresponding deductions from the account of SMC in the amounts covered by the dishonored checks upon receiving information that the checks so issued by the accused had been dishonored by the drawee bank at Santa Maria, Bulacan. The case, therefore, could have been filed also in Bulacan. True, the offense is committed by the very fact of its performance and the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check.

Where, the place of business of the offended party, is in Malolos, Bulacan, from where the tire and gas purchases were made by the two private respondents, payment thereof should be considered effected in Malolos, Bulacan."

A case of estafa and violation of B.P. Big. 22 was filed against the accused in Pampanga, the accused contested the jurisdiction of the court.

The determinative factor (in determining venue) is the place of the issuance of the check.

But it is also true that knowledge on the part of the maker The Supreme Court held: or drawer of the check of the insufficiency of his funds which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or
"As regards the Estafa case: While the subject check was issued in Guiguinto, Bulacan, it was not completely drawn thereat, but in San Fernando, Pampanga, where it was uttered and delivered.

(I)f the undertaking is to deliver a determinate thing, the payment shall be made wherever the thing might be at the moment the obligation was constituted.

another.

The receipt by the two private respondents at Caloocan City of the tires and gas supplies from Malolos, Bulacan, signifies but the consummation of the contract between the parties.
Although the check was received by the SMC Supervisor at Guiguinto, Bulacan, that was not the delivery in contemplation of law to the payee, SMC.

Hence, jurisdiction to take cognizance of the offense also lies in the ETC of Pampanga. KNOWLEDGE BY DRAWER OF INSUFFICIENCY AND DISHONOR AS ESSENTIAL ELEMENTS FOR VIOLATION OF B.P. BIG. 22 The gravamen of the offense is knowingly issuing a worthless check.
The issuance as well as the delivery of the check must be to a person who takes it as a holder, which means the payee or indorsee of the bill or note, who is in possession of it, or the bearer thereof.

It was the result of an obligation previously contracted at Malolos, Bulacan.

Said supervisor was not the person who could take the check as a holder, that is, as a payee or indorsee thereof, with the intent to transfer title thereto.

Since the instant case, it was in Malolos, Bulacan, where the checks were uttered and delivered to complainant at which place, her business and residence were also located, the criminal prosecution of estafa may be lodged therein.

Thus, a fundamental element is knowledge on the part of the drawer of the insufficiency of funds or credit with the drawee bank for the payment of such check in full upon presentment.

In a case, two checks were issued and signed by the accused in connection with the beer purchases made by him on various occasion at Guiguinto, Bulacan and which checks he

The element of deceit, therefore, took place in San Fernando, Pampanga, where the check was legally issued and delivered so that jurisdiction could properly be laid upon the court in that locality."

Another essential element is subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or

73

would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

In the crime of estafa, deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks Law, on the other

are on a different plain.

There is no scintilla of evidence to show that jurisdiction over the violation ofB.P. Big. 22 had been acquired.

Violation of B.P. Big. 22 is a transitory offense. Knowledge on the part of the maker or drawer of the check of the insufficiency of his funds is by itself a continuing eventuality, whether the accused be within one territory or another.

hand, the elements of deceit and damage are neither essential nor required. On the contrary, all that the evidence shows is that complainant is a resident of Makati; that petitioner is a resident Rather, the elements ofB.P. Big. 22 are: (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without valid reason, ordered the bank to stop payment. of Caloocan City; that the principal place of business of the alleged partnership is located in Malabon; that the drawee bank is likewise located in Malabon and that all the subject checks were deposited for collection in Makati.

Consequently, venue or jurisdiction lies either in Malabon where the checks were delivered or in Kalookan where they were dishonored.

Verily, no proof has been offered that the checks were issued, delivered, dishonored or knowledge of insufficiency of funds occurred in Manila, which are esssential elements necessary for the Manila Court to acquire jurisdiction over the offense for violation of B.P. Big. 22. Abduction Abduction is a persistent and continuing offense.

The court, however, clarified that knowledge by the maker or drawer of the fact that he has no sufficient funds to cover the check or of having sufficient funds is simultaneous to the issuance of the instrument.

Where there is no evidence to show that at the time of issue, accused was in Manila, there would be no basis in upholding jurisdiction of the Manila Trial Court over the offense for violation of B.P. Big. 22. THE CRIME OF ESTAFA AND VIOLATION OF B.P. BIG. 22 HAVE TO BE TREATED AS SEPARATE OFFENSES HAVING DIFFERENT ELEMENTS The mere fact that the court has jurisdiction over an estafa case does not necessarily mean it has jurisdiction over the bouncing checks case or violation of B.P. Big. 22 involving the same check.

Hence, it is incorrect for respondent People to conclude that inasmuch as the Regional Trial Court of Manila acquired jurisdiction over the estafa case then it also acquired jurisdiction over the violations ofB.P. Big. 22. Hence, it may be tried in the court of municipality or province wherein the offense was committed or anywhere one of the essential ingredients thereof took place.

The crime of estafa and the violation of B.P. Big. 22 have to be treated as separate offenses and therefore the essential ingredients of each offense have to be established.

The girl being taken with her consent from Manila to Pasig, Rizal Province, both the judges of the Court of First Instance of Manila and of Rizal have jurisdiction and are competent to take cognizance of the crime of abduction.

Thus, where the records clearly indicate that business The crime of estafa and violation of B.P. Big. 22 have to be treated as separate offenses having different elements and, necessarily for a court to acquire jurisdiction each of the essential ingredients of each crime has to be satisfied. The various charges for violation of B.P. Big. 22, however, dealings were conducted in a restaurant in Manila where sums of money were given to petitioner, the lower court acquired jurisdiction over the estafa case. It is true that the abduction was commenced in Manila, but it may well be said that it was consummated in Pasig.

74

Kidnapping Jurisdiction over criminal cases cannot be conferred by Where an information charges the offense of kidnapping for ransom with murder, the victim was kidnapped within Lucena City and at that very moment, the intention becomes evident that the accused wanted to detain him for ransom, the Court thereat has jurisdiction to try the case of murder filed against the accused, although the killing was committed outside the city limits. Falsification of Private Document The crime of falsification of a private document is consummated at the time and place where the document is falsified, whether the document is or is not thereafter put to the improper or illegal use for which it was intended. Where persons are kidnapped and detained in Bulacan, then taken to Nueva Ecija, defendants may be tried and punished in Bulacan, where the crime was commenced and consummated, though continued elsewhere.
In a case, defendant was fould guilty of homicide. Counsel for defense contended that the Court of First Instance of Manila, in which the case was heard, had no jurisdiction as the offense was commit ted outside the city limits.

proceeding pending in the Court of First Instance of Iloilo province. consent. The gist of the offense charged is not the making of the affidavit in Manila, but the intention to give false evidence in Iloilo, by means of such affidavit. Libel The rules on venue on libel in Article 360 of the Revised Penal Code as amended by R.A. No. 1289 and RJL No. 4363 may Crime Within City Limits be stated thus: a. Whether the offended party is a public official or a private person, the criminal action may be filed in the Regional Trial Court of the province or city where the libelous article is printed and first published. If the offended party is a private individual, the criminal action may also be filed in the Regional Trial Court of the province where he actually resided at the time of the The Court of First Instance of Manila has jurisdiction over a crime of robbery committed upon a steamboat in the Bay of Manila at a point two and a half miles beyond the city limits. c. Perjury The lower court oflloilo found that the crime charged commission of the offense.

Kidnapping with serious illegal detention is a continuing crime where the deprivation of liberty is persistent and continuing from one place to another.

Held: As the crime was committed within two and a half miles of

b.

Estafa by Railroad Conductor Where a railroad conductor collects one peso and twentytwo centavos from a passenger and issues a false ticket for a shorter journey for which the charge is eighteen centavos, the estafa is committed where his account was rendered and the stub of the false ticket was turned in.

the city limits, the court had the necessary jurisdiction.

If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Regional Trial Court of Manila.

Under Article 29 of the General Compilation of Laws upon Criminal Procedure, jurisdiction is vested in the court, where accused made use of the document (stub of the ticket) alleged to be false.

(perjury) in the information was completed in Manila, inasmuch as the affidavit upon which the charge of perjury rested was subscribed and sworn to before a notary in the city, and sustained a demurrer, dismissing the case on ground of lack of jurisdiction.

d.

If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.

The fact that the Court of First Instance of Manila took jurisdiction of the estafa because the place of its commission was not clearly shown, is not an obstacle to the court declaring itself without jurisdiction as soon as the lack of jurisdiction appeared.

For the guidance, of both the bench and the bar, the Court It is immaterial where the affidavit was subscribed and sworn, so long as it appears from the information that defendant, by means of such affidavit, swore to and knowingly submitted false evidence, material to a point at issue in a judicial In order to obviate controversies as to the venue of the criminal finds it appropriate to reiterate its earlier pronouncement in the case of Agbayani, to wit:

75

action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time.
Whenever possible, the place where the written defamation was printed and first published should likewise be alleged.

jurisdictional waters the court stated in certain cases, the comity of nations is observed, as in Mali u. Keeper of the Common Jail, wherein it was said that disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public may be suppressed and the offenders punished by proper authorities of the local jurisdiction.

respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in the said place itself has competent jurisdiction, in the absence of an agreement under an international treaty.

When the exact place where the crime was committed is unknown and the strong presumption arises at the trial that it was committed on board a ship navigating within the waters included in the territory of this Archipelago, the court competent to try such a crime is that of the district and province at one of whose ports the ship or vessel arrives.

That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action.

It may not be easy at all times to discover to which of the two jurisdictions a particular act of disorder belongs.

CRIMES ON BOARD FOREIGN MERCHANT SHIPS WITHIN TERRITORIAL LIMITS There are two fundamental rules in International Law regarding jurisdiction to punish crimes committed abroad foreign merchant vessels:

Much will depend upon the attending circumstances of the particular case, but all must concede that a felonious homicide is a subject for local jurisdiction; and if the authorities are proceeding with the case in the regular way the consul has no right to interfere with it. CRIMES COMMITTED OUTSIDE OF THE PHILIPPINES PUNISHABLE UNDER ARTICLE 2 OF THE REVISED PENAL CODE
ART. 2. Application of its provisions. Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:

The offense of failing to provide suitable means for The French rule, according to which such crimes should not be prosecuted in the court of the country within which they are committed, unless their commission affects the peace and security of the territory; and securing animals while transporting them on a ship from a foreign port to a port in the Philippine Islands, is within the jurisdiction of the courts of the Philippines when the forbidden conditions existed during the time the ship was within territorial waters, regardless of the fact that the same conditions existed The English rule, based on the territorial principle, followed by the United States, according to which such crimes are in general triable in the courts of the country within whose territory they are committed. Although the mere possession of a thing of prohibited use in these islands, aboard a foreign vessel in transit, in any of their Of these two rules, the last one obtains in this jurisdiction, as the Philippines was then a territory of the United States. In certain cases, the comity of nations is observed. ports, does not, as a general rule, constitute, a crime triable by the courts of this country, on account of such vessel being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which is prohibited within the Philippine Islands, is landed from the vessel upon Whether the courts of the Philippines have jurisdiction over a crime (such as smoking of opium within our territorial limits) committed aboard foreign merchant vessels anchored in Philippine soil. when the ship sailed from the foreign port and while it was on the high seas.

a.

Should commit an offense while on a Philippine ship or airship;

b.

Should forge or counterfeit any coin or currency note of the

Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;

c. number;

Should be liable for acts connected with the introduction into

these islands of the obligations and securities mentioned in the preceding

d.

While being public officers or employees, should commit an

offense in the exercise of their functions; or

e.

Should commit any of the crimes against national security and

the law of nations, defined in Title One of Book Two of this Code.

In the present case, a can of opium was landed, thus constituting an open violation of the laws of the land, with While under Sec. 15(d) "other crimes committed outside of

76

the Philippines but punishable therein under article 2 of the Revised Penal Code shall be cognizable by the proper court in which the charge is first filed."

Intervention of the Offended Party in Criminal Action The prime purpose of the criminal action is to punish the Intervention of Offended Party Explaining the scope of the Rule and the meaning of offended party, the Court stated that under Section 5, Rule 110 of the Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party ror the damage or injury he sustained by reason of the delictual or felonious act of the accused. Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action inclusive of the civil action remains under the control and supervision of the public prosecutor. Under Article 104 of the Revised Penal Code, the following are the civil liabilities of the accused: offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.

Where the crime is committed by a public officer in relation to his office and is classified as Grade 27 and higher, jurisdiction is with the Sandiganbayan. WHEN PROCEEDINGS ARE CONDUCTED PREMISES OF THE PENAL INSTITUTION WITHIN THE

control of the public prosecutor.

A sister of detention prisoner Mario, accused in a criminal case for robbery with homicide requested the transfer of the case from the Regional Trial Court at Calamba, Laguna to the original court, the Regional Trial Court of Quezon City. Mario is a life termer and had been ordered committed to the National Bureau of Prisons in Muntinlupa.

ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102 and 103 of this Code includes: 1. 2. 3. Restitution; Reparation of the damage caused; Indemnification for consequential damages.

Pursuant to Administrative Circular No. 2, dated December 2, 1976, and Administrative Circular No. 6, dated December 5, 1977, he cannot be brought out of the penitentiary for appearance or attendance in other criminal cases in any court without authority from the Supreme Court. The prosecution of offenses is a public function.

When the offended party, through counsel, has asserted Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. his right to intervene in the proceedings, it is error to consider his appearance merely as a matter of tolerance.

Said circulars also provide that judges in Metro Manila who shall require the appearance or attendance of such prisoners as witness or as accused before their respective courts shall conduct such proceedings within the premises of the penal institution.

From Sections 5 and 16 of Rule 110, it can clearly be inferred that while criminal actions as a rule are prosecuted under the direction and control of the fiscal, however, an offended party may intervene in the proceeding, personally or by attorney, especially in cases of offenses which cannot be prosecuted except at the instance of the offended party. The only exception to this rule is when the offended party waives his right to civil action or expressly reserves his right to institute it, in which case, he loses his right to intervene upon the theory that he is deemed to have lost his interest in its prosecution.

A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case.

The Court resolved to grant Ms. Llanto's request but the trial of the case shall be conducted within the premises of the National Penitentiary. The multiplicity of suits must be avoided.

With the implied institution of the civil action in the crimiSEC. 16. nal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.

77

And, in any event, whenever an offended party intervenes in the prosecution of a criminal action, his intervention must always be subject to the direction and control of the prosecuting official. If there are offended parties, petitioner's contention that no damages are to be recovered in the criminal action must be untenable.

public prosecutor for the recovery of the civil liability of the accused.

Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended party may also be a private public function of prosecuting offenses can be individual whose person, right, house, liberty or property was actually or directly injured by the same punishable act or omission of the accused, or that corporate entity which is damaged or injured by the delictual acts complained of.

Even in cases which do not involve any civil liability, an offended party may appear not only as a matter of tolerance on the part of the court.

The

performed not exclusively by fiscals or other public officers, but by private attorneys in cases where they are allowed to intervene as private prosecutors.

In this respect, the law makes no distinction between cases that are public in nature and those that can only be prosecuted at the instance of the offended party. The Right to Notice of Offended Party In either case, the law gives the offended party the right to intervene, personally or by counsel, and he is deprived of such right only when he waives the civil action or reserves his right to institute one. The offended party may be the State or any of its instrumentalities, including local governments or governmentowned or controlled corporations which, under substantive laws, Where the private prosecution has asserted its right to intervene in the proceedings, it is error to consider the appearance of counsel merely as a matter of tolerance. The offended party is entitled to be notified and heard on motions filed in the criminal proceedings especially when there is a conflict in the positions between the public prosecutor and of the offended party. Offended Parties in Illegal Practice of Medicine In an information for illegal practice of medicine a private prosecutor was allowed to intervene. For violations of Section 3(e) of Rep. Act No. 3019, any party, including the government, may be the offended party if such party sustains undue injury caused by the delictual acts of the accused. All the witnesses who testified before the fiscal are offended parties it appearing that the offense alleged in the information belongs to the class of harmful ones. In such cases, the government is to be represented by the The offender does not, in any way, have civil liability to a third person. WHEN MAY THE OFFENDED PARTY LOSE HIS RIGHT TO For instance, in malversation of public funds or property under Article 217 of the Revised Penal Code, frauds under Article 213 of the Revised Penal Code, and violations of the Forestry Code of the Philippines, P.D. No. 705, as amended, to mention a few, the government is the offended party entitled to the civil liabilities of the accused. The controlling consideration is the public character of a document and the violation of the public faith and the destruction of truth therein solemnly proclaimed. In the felony of falsification of public document, the existence of any prejudice caused to third person or the intent to cause damage, at the very least, becomes immaterial. are entitled to restitution of their properties or funds, reparation, or indemnification. The interest of the party must be personal; and not one based on a desire to vindicate the constitutional right of some third and unrelated party. Such interest must not be a mere expectancy, subordinate or inconsequential. OFFENDED PARTIES FOR VIOLATION OF ANTI-GRAFT LAW AND FALSIFICATION OF PUBLIC DOCUMENTS After all, in the performance of their professional duties, lawyers are officers of the court and assume public and official responsibilities. Such party must be one who has a legal right; a substantial interest in the subject matter of the action as will entitle him to recourse under the substantive law, to recourse if the evidence is sufficient or that he has the legal right to the demand and the accused will be protected by the satisfaction of his civil liabilities.

78

INTERVENE IN THE PROSECUTION OF THE CASE An offended party loses right to intervene in the

It was earlier held in a case for illegal possession of firearms and violation of the Dangerous Drugs Law that: "It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. The presumption that he approved of the motion is not enough, especially since we are dealing here with the liberty of a person who had a right at least to be notified of the move to prosecute him again.

prosecution of a criminal case, when he has waived the civil action or expressly reserved his right to institute the civil action arising from the offense.

This is true even if a private prosecutor is allowed to assist The reason of the law in not permitting the offended party to intervene in the prosecution of the offense if he has waived or reserved his right to institute the civil action is that by such action his interest in the criminal case has disappeared. The witnesses, even if they are the complaining witnesses, cannot act for the prosecutor in the handling of the case. Its prosecution becomes the sole function of the public prosecutor. Although they may ask for the filing of the case, they have no personality to move for its dismissal or revival as they are not Reservation of right of civil damages; offended party losses right to intervene. Where the offended party in a criminal case has expressly reserved his right to present an independent civil action for damages arising from the offense charged, he loses his right to intervene in the prosecution of the criminal case. Filing of Separate Civil Action Undoubtedly, an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived his right to institute, but also when he has actually instituted the civil action arising from the offense. Their only function is to testify. even parties thereto nor do they represent the parties to the action. him and actually handles the examination of the witnesses and the introduction of other evidence.

The fact that he was not so informed made the irregularity even more serious."

It was, however, held that the offended party has the right to file a motion for reconsideration of the order considering the information against petitioner as withdrawn even without the conformity of the public prosecutor or to file motion for reconsideration of a decision of the Supreme Court enjoining a criminal prosecution. Legal Personality of Offended Party While it is the SolGen that may bring or defend actions on behalf of the Republic of the Philippines or represent the people or the state in criminal proceedings pending before the Supreme Court or Court of Appeals, the private offended party retains the right to bring a special civil action for certiorari in his own name in criminal proceedings before the court of law.

In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else."

It follows that a motion for revival of the cases filed by prosecution witnesses (who never even testified) should have been summarily dismissed by the trial judge.

It follows that the offended party has legal personality to file a motion for reconsideration of an order of dismissal. The case was distinguished from Caes v. Intermediate

For by either of such actions his interest in the criminal case has disappeared.

The mere fact that the government prosecutor was furnished a copy of the motion and he did not interpose any objection was not enough to justify the action of these witnesses.

Appellate Court, which is a violation of the dangerous drugs law where there is no immediate and direct offended party.

Moreover, if the court, independently of the appeal of the accused, has jurisdiction, within fifteen days from the date of the judgment, to allow the appeal of the offended party, it also has jurisdiction to pass upon the motion for reconsideration filed by the private prosecution in connection with the civil liability of the

The Right to File Motion for Revival

The prosecutor should have initiated the motion himself if he thought it proper.

79

accused.

The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

d.

The rule also incorporated Circular 57-97 on the filing of actions for violation of Batas Pambansa Big. 22 mandating the inclusion of the corresponding civil action for which the filing fee shall be paid based on the amount of the check involved.

This is no longer provided for.

The reservation and waiver referred to refers only to the civil action for the recovery of civil liability arising from the offense charged. RULE 111 PROSECUTION OF CIVIL ACTION This does not include recovery of civil liability under SECTION 1. Institution of criminal and civil actions Changes in the Rule at a Glance a. The rule changes the 1985 rule as amended in 1988. Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation.

In other cases, no filing fees shall be required for actual damages. History of Amendment No other rule in criminal procedure have been as hotly debated upon as the rule on prosecutions of civil actions. The rule have been amended four times. a. Juridical Basis of the Principle of Implied Institution of the Civil Action with the Criminal Action Dual Concept of Civil Liability

c.

The rulings in Shafer v. Judge, RTC of Olongapo City, allowing a third-party complaint, and the ruling in Javier v. Intermediate Appellate Court, as well as Cabaero v. Cantos allowing a counterclaim are no longer in force.

Under the 1985 Rule, the action for recovery of civil liability arising from crime including the civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission are deemed impliedly instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Thus, a court trying a criminal case cannot award Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal unless the offended party waives the civil action reserves his right to institute it separately, or institutes the civil action prior to the criminal action. The task of the trial court is limited to determining the guilt of the accused and if proper, to determine his civil liability. Article 100 of the Revised Penal Code provides that every person criminally liable shall also be civilly liable (exdelicto) while Article 2176 of the Civil Code provides that b. Under the former rule a waiver of any of three civil actions extinguishes the others. A criminal case is not the proper proceedings to determine the private complainant's civil liability. "whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. damages in favor of the accused. Any claim which could have been the subject thereof may be litigated in a separate civil action. Civil obligations arising from the criminal offenses shall be governed by the penal laws, subject to the provisions of Article 2177, and of the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII on Human Relations, regulating damages. 4 Under the Revised Rules on Criminal Procedure, these pleadings are no longer allowed. Under Article 1157 of the Civil Code of the Philippines, obligations may arise, inter alia, from acts or omissions punished by law (ex-delicto) and from quasi-delict.

80

Code, or create an action for quasi-delict or culpa-contractual under

The same act or omission which gives rise to two separate and distinct sources of civil liability may be prosecuted separately and independently of each other, subject only to the limitation that the satisfaction of either bars recovery of the other, on the principle that plaintiff cannot recover twice for the same act or omission.

Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter."

Articles 1902-1910 of the Civil Code."

The other differences pointed out between crimes and culpa aquiliana are:

The Code expressly provides that responsibility for the fault or negligence for quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code, subject only to the limitation that the plaintiff cannot recover damages twice for the same act or omission of the defendant. 2) That consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code by means of indemnification merely repairs the damage; Briefly stated, the negligent act causing damages may produce two kinds of civil liability on the part of the offender, that is, civil liability arising from the crime under Article 100 of the Revised Penal Code, or create an action for quasi-delict or culpa extra-contractual under Articles 1902-1910 of the Civil Code. 3) That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal law clearly covering them, while the latter, quasi-delicts, include all acts in which any kind of fault or negligence intervenes. c. The distinct nature of the dual concept of the civil liability was stressed in Diana v. Batangas Transportation Co., citing the earlier case of Barredo v. Garcia, in the following words: The plain inference is that the civil liability based on delict springs out of and is dependent upon facts which, if true, would constitute a crime. 1) That crimes affect public interest, while quasi-delicts are only of private concern;

Otherwise stated, civil liability, although arising from the same act or omission, may not only be prosecuted either in a criminal or civil action, but in a criminal and civil action.

The procedural enforcement of these distinct civil liabilities, albeit based on the same act or omission, are likewise separate and distinct, subject only to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of civil liabilities.

Civil Liability Based on Crime

The civil liability based on a crime, unless reserved, is generally enforced in the criminal action, and was governed by the Rules on Criminal Procedure, more particularly Rule 111 on the prosecution of civil actions, which provides that when a criminal action is instituted the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately.

"These two cases involve two different remedies.

Such civil liability is a necessary consequence of criminal responsibility, and is to be declared and enforced in the criminal proceeding except where the injured party reserves his right to avail himself of it in a distinct civil action.

As the Court aptly said: A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code, with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime.

b.
A distinction exists between the civil liability arising from a crime and the responsibility for quasi-delict or culpa extracontractual.

Modes of Enforcement

Civil liability under Article 2176 was then enforced separately by means of a civil action and is governed by the Rules on civil actions.

The dual concept of civil liability, ex-delicto and quasidelicto, has thus brought about a dual mode of enforcement.

The same negligent act causing damages may produce civil liability arising from a crime under Article 100 of the Revised Penal

Consequently, when a criminal action is filed, what was deemed impliedly instituted thereunder was only the

81

civil liability arising from or based on the crime.

namely, the punishment of the offender and indemnity to the offended party, its dominant and primordial objective is the punishment of the offender.

f.

The Independent Civil Actions

Thus, the accused may be held civilly liable in the criminal action, if he is found to be criminally liable.

In 1949, the (new) Civil Code of the Philippines introduced the so-called independent civil actions.

The civil action is merely incident and consequent to If the accused is acquitted, he cannot be held civilly liable in the criminal action. the conviction of the accused, which may even be waived or the prosecution thereof reserved in a separate civil action. These are Articles 32, 33, and 34.

The obvious reason, as stated in People u. Amistad is that the civil liability recoverable in the criminal action is one solely dependent upon conviction, because said liability arises from the offense, since what was deemed impliedly instituted, unless reserved, was the civil action for recovery of civil liability arising from the offense charged, and no other.

This is because criminal actions are primarily intended to vindicate an outrage against the sovereignty of the State, and to impose the corresponding penalty for the vindication of the disturbance to the social order caused by the offender; the action between the private person and the accused is intended solely to indemnify the former.

These articles allow the injured party to file a civil action for damages in the cases mentioned therein which may also constitute criminal offenses entirely separate and distinct from the criminal action.

Such civil action may proceed independently of the criminal action and shall require only a preponderance of evidence.

Thus, where the accused is acquitted in the criminal This is also the civil liability that is deemed case, the interest of the State ends, and no civil liability arising from the crime charged could be imposed upon him.

extinguished with the extinction of the penal even with a pronouncement that the fact from which the civil action might proceed does not exist."

This has raised the question of whether or not a reservation to file a separate civil action for the cases mentioned therein is necessary for the exercise of such right.

What the private offended party should do is to file a separate civil action.

d.

Early Rulings

The Supreme Court flip-flopped from one extreme to the other.

In the early stages of criminal procedure, the policy was to strictly adhere to the distinct and discrete nature of the criminal from purely civil actions, and the civil liability that is sought to be enforced thereunder. The Rule was originally governed by Rule 107 of the What is deemed impliedly instituted and governed by the rules on criminal procedure, unless reserved, was only the civil liability arising from the crime, while civil liability based on other sources of obligation such as quasi-delict may be enforced only in a purely civil action.
"When a criminal action is instituted the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately. Thus, what was deemed impliedly instituted unless there is a waiver or reservation is the civil liability arising from the crime."

One school of thought is of the considered view that e. Original Rule, The 1940 Rules of Court the provisions of the Civil Code are substantive in nature which may be exercised by the injured party even without any reservation. 1940 Rules of Court which then provided that: A contrary rule is unconstitutional.

Thus, the criminal action as well as the civil action for the recovery of the civil liability arising from a crime may proceed simultaneously and independently of the other, without any reservation subject only to the limitation that,

While the criminal action may have a dual purpose,

82

the injured party cannot recover twice for the same act or omission as provided for in Article 2177 of the Civil Code. g. The Amendments

extinction

of

the

civil,

unless

the

extinction

proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist.

The other school of thought is of the view that the provisions of the new Civil Code or the exercise of the right granted under the Civil Code is merely procedural which may be regulated under the Rule-making power of the Supreme Court.

1)

First Amendment

In view of the provisions of the new Civil Code on the so-called independent civil actions, the rule was amended in 1964 by adding a new section, viz.

In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered.

To simplify the proceedings and avoid conflicting decisions, all civil actions for the recovery of damages arising from the same act or omission should only be litigated in one proceeding.

The reservation requirement for Other Civil Actions: The Supreme Court, however, declared Section 2 as
SEC. 2. Independent civil action. In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. The former is a violation of the criminal law, while the latter is a "* * * the same negligent act causing damages may produce a civil liability arising from crime or create an action for quasidelict or culpa extra-contractual.

inoperative. Thus, in Mendoza v. Arrieta, quoting from Garcia v. Florida, that:

The injured party must have to elect whether he chooses to prosecute his claim in the criminal action or in a separate civil action either by a timely reservation or the filing of the civil action prior to the institution of the criminal action.

The gravity and complexity of the question is best exemplified by the four amendments of the Rule.

SEC. 3. Other civil actions arising from offenses. In all cases not included in the preceding section the following rules shall be observed,

distinct and independent negligence, having always had its own foundation and individuality.

Some legal writers are of the view that in accord ance with

The minutes of the proceedings from the Fernan to the Davide, Jr., committee disclose the heat of the debate and the numerous sessions not only of the Committee but also by the Court en bane.

a.

Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action; b. After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted, and the same shall be suspended, in whatever stage dered; it may be found, until final

Article 31, the civil action based upon quasi-delict may proceed independently of the criminal proceeding for criminal negligence and regardless of the result of the latter.

Hence; the proviso in Section 2 of Rule 111 with reference to x x x Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for these articles were drafted x x a and are intended to constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111.

By no means can it be said that the issue had been finally laid to rest.

If the Revised Rule on Criminal Procedure have been delayed, it is because of Rule 111. It took the court several sessions before the present rule was reluctantly adopted, which ended with a rule similar to the 1940 Rules of Court, prior to the four amendments. c.

judgment in the criminal proceeding has been ren-

The prouiso, which is procedural, may also be regarded as an unauthorized amendment of substantive law, Articles 32,33 and 34 of the Civil Code, which do not provide for the reservation required in the proviso. x x x"

Extinction of the penal action does not carry with it

83

criminal action. The 1985 amendment did not live very In his concurring opinion in the above case, Mr. Justice Antonio Barredo further observed that inasmuch as Articles 2176 and 2177 of the Civil Code create a civil liability distinct and different from the civil action arising from the offense of negligence under the Revised Penal Code, no reservation, therefore, need be made in the criminal case; that Section 2 of Rule 111 is inoperative, "it being substantive in character and is not within the power of the Supreme Court to The rule further clarified the civil actions that are deemed impliedly instituted is not confined to civil actions arising from a crime but also the civil actions to recover civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission 2. Second Amendment of the accused unless the offended party waives the civil action, reserves his right to institute it separately, Accordingly, the 1985 Rules on Criminal Procedure did away with the need for RESERVATION in cases provided for in Articles 32, 33 and 34 of the Civil Code of the Philippines and instead recognized that "an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case.
"The 1988 amendment expands the scope of the civil action which is deemed impliedly instituted with the criminal action unless waived, reserved or previously instituted x x x.

long.

However, in view of Article 2177 of the said code which provides that the offended party may not recover twice for the same act or omission of the accused, and in line with the policy of avoiding multiplicity of suits, these objections were overruled.

3.

Third Amendment

In 1988, Rule 111 was amended for the third time.

It actually restored the 1964 amendment.

In any event, the offended party was not precluded from filing a civil action to recover damages arising from quasi-delict before the institution of the criminal action, or from reserving his right to file such a separate civil action, just as he is not precluded from filing a civil action for damages under Articles 32, 33 and 34 before the institution of the criminal action, or from reserving his right to file such a separate civil action.

promulgate; and even if it were not substantive but adjective, it cannot stand because of its inconsistency with Article 2177, an enactment of the legislature superseding the Rules of 1940."

or institutes the civil action prior to the criminal action.

It is only in those cases where the offended party has not previously filed a civil action or has not reserved his right to file a separate civil action that his action is deemed impliedly instituted with the criminal action.

Explaining the amendment, Justice Jose Y. Feria, then a member and later chairman of the Revision of Rules of Court Committee elucidated:

While it was ruled in Abella u. Marave,u that a reservation of the right to file an independent civil action is not necessary, such a reservation is necessary under the 1988 amendment.

Such civil action shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence."

Such a civil action includes not only recovery of indemnity under the Revised Penal Code and damages under Articles 32, 33, 34 of the Civil Code of the Philippines, but also damages under Article 2176 of the said code. x x x"

Without such reservation, the civil action is deemed impliediv instituted with the criminal action, unless previously waived or instituted.

Under the 1985 amendment, what is deemed impliedly instituted with the criminal action unless there is a reservation or a prior civil action filed is the civil action for the recovery of the civil liability arising from the offense charged.

Such civil actions are not limited to those which arise "from the offense charged."

Objections were raised to the inclusions in this Rule of quasi-delicts under Article 2176 of the Civil Code of the Philippines. In other words, the right of the injured party to sue separately for the recovery of the civil liability whether

This is the civil action that may be reserved in the

84

arising from crimes (ex delicto or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action). The court, however, went further by limiting the civil liability that is deemed instituted with the criminal only to the civil liability arising from the offense charged.

Rule 107 contemplates a case where the offended party desires to press his right to demand indemnity from the accused in the criminal case which he may assert either in the same criminal case or in a separate action.

This includes the right to recover damages against the employer pursuant to Article 2180 in relation to Article 2176 of the Civil Code. Elsewise stated, prior reservation is a condition sine qua non before any of these independent civil actions including the action for quasi-delict against the employer can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action.

All decisions to the contrary are no longer controlling. The independent civil actions under Articles 32, 33, 34 and 2176 are no longer deemed or impliedly instituted with the criminal action or considered as waived even if there is no reservation.

Under this rule, a waiver from failure to reserve does not include a cause of action not arising from civil liability involved in the criminal case but from culpa contractual, such as a civil case is based on alleged culpa contractual incurred by the Philippine Air Lines, Inc. because of its failure to carry safely the deceased passenger to his place of destination.

The reservation applies only to the civil liability arising from the offense charged.

The criminal case involves the civil liability of the The employer may no longer be held civilly liable for accused, who bear no relation whatsoever with said entity and are complete strangers to it.

4.

Fourth Amendment

quasi delict in the criminal action as ruled in Maniago (supra) and San Ildefonso lines (supra) and the pro hac vice decision in Rafael Reyes Trucking Corporation (supra), and all other similar cases, since quasi-delict is not deemed instituted with the criminal.

The Revised Rules on Criminal Procedure is a virtual return to the 1940 Rules of Court (and the 1985 amendment) which deemed as instituted with the criminal action only the civil liability arising from the offense charged.

The accused are complete strangers to the respondent company.

The latter is not in any way involved therein. Plaintiff is If at all, the only civil liability of the employer in the criminal action would be his subsidiary liability under the Revised Penal Code. The failure, therefore, on the part of the plaintiff to The rule has also done away with third party complaints and counterclaims in criminal actions. reserve her right to institute the civil action in the criminal case cannot in any way be deemed as a waiver on her part of the right to institute a separate civil These claims must have to be ventilated in a separate civil action. action against the respondent company based on its contractual liability, or on culpa aquiliana under Articles 1902 to 1910 to of the Civil Code. concerned with the civil liability of the latter, regardless of the civil liability of the accused in the criminal case.

The civil liability is deemed instituted not merely "impliedly" instituted with the institution of the criminal action.

The amendment modified the recommendation of the Committee on the Revision of the Rules of Court to deem as impliedly instituted only the civil liability of the accused from all sources of obligation arising from the same act or omission. The fourth amendment is similar to the original rule in Rule The purpose of the Committee was to limit the civil liability to be instituted with the criminal action to that of the accused and not the employer. 107 of the Rules of Court and the 1985 amendment.

The two actions are separate and distinct and should not be confused one with the other.

Under Article 31 of the Civil Code: "When the civil

85

action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter."

may be brought by the injured party and may proceed simultaneously;

In cases of negligence, the offended party has the choice between an action to enforce civil liability arising from crime under the Revised Penal Code and an action for quasi-delict under the Civil Code.
The Principle Allowing Separate Civil Actions noT Allowed for Violations of BP Big. 22

The civil liability is not extinguished where acquittal is based on reasonable doubt.

It may further be noted that Article 31 is not among the civil actions that are deemed impliedly instituted with the filing of the criminal. An act or omission causing damage to another may give It may likewise be noted that in Corpus v. Page, the court ruled that Article 33 did not contemplate reckless imprudence or criminal legligence cases. 1) civil liability ex delito, under Article 100 of the Revised Penal Code, and independent civil liabilities, such as those (a) not arising from an act or emission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article 32, of the Civil Code, intentional And, in Eicano v. Hill, the court ruled that the concept of quasi-delict includes intentional acts, i.e., acts or omissions punishable by law. (b) where the injured party is granted a right to file an The foregoing concepts would allow more than one civil action to recover civil liability arising from the same act or ommission. Either of these two possible liabilities may be enforced against The only limitation is against double recovery. the offender (separately and simultaneously) subject, however, to the caveat under Article 2177 of the Civil Code that the attended party cannot recover damages This is in effect the present rule. The Principle of Simultaneous Civil Actions Thus, civil liability arising from crime and civil liability arising from Articles 32, 33, 34 and 2176 quasi-delict or contract are entirely separate and distinct from the criminal action that Civil Actions in Cases of Negligence twice for the same act or emission or under both causes. However, a separate civil action based on subsidiary liability cannot be instituted during the pendency of the criminal case. independent and distinct criminal action. torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or rise to two separate liabilities on the part of the offender, i.e.,
Two Separate Civil Liabilities from Same Act or Omission

The principle does not apply to violations of B.P. Big. 22 which provides that "The criminal action for violation of Batas Pambanss Big. 22 shall be deemed to include the corresponding civil action.

No reservation to file such civil action separately shall be allowed."

However in Maceda v. Caro, the court observed ;hat Corpus v. Page is not controlling and held that Article 33 also covers crimes committed thru criminal negligence.

2)

The Court explained that this rule was enacted to help declog court dockets which are filled with B.P. Big. 22 cases as creditors actually use the courts as collectors.

Because ordinarily no filing fee is charged in criminal cases for actual damages, the payee uses the intimidating effect of a criminal charge to collect his credit gratis and some times, upon being paid, the trial court is not even informed thereof

The inclusion of the civil action in the criminal case is expected to significantly lower the number of cases filed before the courts for collection based on dishonored checks.

It is also expected to expedite the disposition of these cases.

Instead of instituting two separate cases, one for criminal and another for civil, only a single suit shall be filed and tried.

It should be stressed that the policy laid down by the Rules

86

is to discourage the separate filing of the civil action.

violation of B.P. Big. 22 filed by the for the issuance of bouncing checks in payment of the same obligation which deemed as included the civil action recovery of the sum of money sought to be recovered in the civil action.
Action Based on Compromise Agreement held as Different from Violation of B.P. Big. 22

for insufficiency or lack of funds.

The Rules even prohibit the reservation of a separate civil action, which means that one can no longer file a separate civil case after the criminal complaint is filed in court.

The issuance of worthless checks is prohibited because of its deleterious effects on public interest and its effects transcend the private interest of the parties directly involved in the transaction and touches the interest of the community at large.

The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. An action, however for collection based on violation of a Memorandum Agreement entered into where parties also agreed Even then, the Rules encourage the consolidation o the civil and criminal cases. to dismiss the criminal proceedings for violation of B.P. Big. 22 was held as not violative of the rule against forum shopping because, there is no identity of parties, rights or causes of action, sand relief sought. The Court stated: We have previously observed that a separate civil action for the purpose of recovering the amount of the dishonored checks would only prove to be costly, burdensome and timeconsuming for both parties and would further delay the final disposition of the case. HERE, THE TWO CASES INVOLVED ARE THE INSTANT CIVIL CASE FOR COLLECTION OF SUM OF MONEY WHERE PETITIONER IS THE DEFENDANT, AND THE B.P. BIG. 22 CASES WHERE PETITIONER IS THE ACCUSED.
Clearly, there is no identity of parties for in the criminal case, the exists.

In the present civil case, no such transcendental public interest

Right to Intervene in Estafa Cases The fact, however, that the Rules do not allow the reservation of civil actions in B.P. Big. 22 cases canot deprive private complainant of the right to protect her interests in the criminal action for estafa.

Nothing in the current or rules on B.P. Big. 22 vests the jurisdiction of the corresponding civil case exclusively in the Court trying the B.P. Big. cases.

This multiplicity of suits must be avoided.

plaintiff is the State with Ligon only as a complaining witness. In the case at bar, Ligon himself is the plaintiff.

Where petitioners' rights may be fully adjudicated in the proceedings before the trial court, resort to a separate action to recover civil liability is clearly unwarranted.
In the instant case, the cause of action is petitioner's breach of contract as embodied in the Memorandum of Agreement, while in the criminal case, it is the violation of B.P. Big. 22. There is also a difference in the causes of action.

In promulgating the Rules, the Court did not intend to leave the offended parties without any remedy to protect their interests in estafa cases.

In view of this special rule governing actions for violation ofB.P. Big. 22, Article 31 of the Civil Code cited by the trial court will not apply to the case at bar.

Private complainant's intervention in the prosecution of the estafa and B.P. Big. 22 is justified not only for the prosecution other interests, but also for the speedy and inexpensive administration of justice as mandated by the Constitution despite the necessary inclusion of the corresponding civil; action in the proceedings for violation of BP 22 pending before the MTC.

There is also a difference in reliefs sought because in the civil case, what is sought is the enforcement of the terms in their Memo randum of Agreement, while in the criminal case, it is the punishment of the offense committed against a public law.

The pendency of the civil action before the court trying the criminal case bars the filing of another civil action in another court on the ground of litis pendentia.

As we explained in Go v. Dimagiba, civil liability differs from criminal liability.

The only limitation is that a recovery in one bars the other.

Thus, the complaint for recovery of sum of money based on a contractual debt filed in the Regional Trial Court was dismissed because of the pendency of a criminal case for
What is punished in the latter is not the failure to pay an obligation but the issuance of checks that subsequently bounced or were dishonored

On the other hand a separate civil action for failure to comply with the obligations under the Trust Receipts was

87

allowed although the a criminal case for violation of the Trust receipts law had already been filed.

arising from the dredging contracts subject of the criminal action.

deemed abandoned."
Extent of Damages Awarded in Civil Liability Arising from Crimes

According to the Court: THE RIGHT TO FILE A SEPARATE COMPLAINT FOR A SUM OF MONEY IS GOVERNED BY THE PROVISIONS OF ARTICLE 31 OF THE CIVIL CODE, TO WIT:
"Article 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter."

However, the Court held that petitioner's counterclaim is deemed abandoned by virtue of Section 4 of P.D. No. 1606, as amended. Civil liability arising from crime includes, moral damages, exemplary damages and loss of earning capacity.

The last paragraph of Section 4 of P.D. No. 1606, as amended, provides that:

Attorney's fees may be awarded but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded.

Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the

Life expectancy is included in award of damages.

Where the complaint against petitioners was based on the failure of the latter to comply with their obligation as spelled out in the Trust Receipt executed by them.

The only civil liability that may thus be imposed in a criminal action is that arising from and consequent to the criminal liability oi the accused on the principle that every person criminally liable is also civilly liable. This includes restitution, reparation of damages caused

Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized:

This breach of obligation is separate and distinct from any criminal liability for "misuse and/or misappropriation of goods or proceeds realized from the sale of goods, documents or instruments released under trust receipts", punishable under Section 13 of the Trust Receipts Law (P.D. No. 115) in relation to Article 315(1), (b) of the Revised Penal Code.
Provided, however. That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned.

and indemnification of consequential damages. Complementary thereto, are the subsidiary civil liability of innkeepers, tavern keepers and proprietor of establishments, employers, teachers, persons and corporations engaged in any kind of industry, for felonies committed by their servants, pupils, workmen, apprentices, employees in the discharge of their duties. Broader Concept of Civil Liability In Banal v. Tadeo, Jr., a case of violation of B.P. Big. 22, (A law making the issuance of a bouncing check criminal) the lower court rejected the appearance of a private prosecutor on the ground that B.P. Big. 22 does not provide for any civil liability or indemnity and, hence it is not a crime against property but public order.

Being based on an obligation ex contractu and not ex delicto, the civil action may proceed independently of the criminal proceedings instituted against petitioners regardless of the result of the latter.
The Sandiganbayan Rule: Prohibition against Separate Civil Action

The Court held that Petitioner's counterclaim in the civil case pending with the Malabon trial court for the return of the amount DPWH paid NIC is an action to recover civil liability ex delicto.

However, this action to recover civil liability ex delicto is by Petitioner DPWH the offended party in a criminal case for estafa thru falsification of public documents and for violation of Section 3(e) and (g) of R.A. No. 3019 pending in the By mandate of R.A. No. 8249, the counterclaim filed earlier in the separate civil action with the Malabon trial court "shall be Sandiganbayan lodged its own counterclaim to the collection case filed with the Malabon Trial Court, praying for the return of its payment made to the Navotas Industrial Corporation (NIC) operation of law included in the criminal cases filed with the Sandiganbayan.

The Supreme Court, in setting aside the order, gave a

88

broader concept of the civil liability that may be recovered in a criminal action. The Supreme Court said: "GENERALLY, THE BASIS OF CIVIL LIABILITY ARISING FROM CRIME IS THE FUNDAMENTAL POSTULATE OF OUR LAW THAT EVERY MAN CRIMINALLY LIABLE IS ALSO CIVILLY LIABLE."
Underlying this legal principle is the traditional theory that when a person commits a crime, he offends two entities, namely: (1) the society in which he lives in or the political entity called the State whose law he had violated; and the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission, x x x."

criminal case, unless a waiver or the reservation of the civil "EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR NEGLIGENTLY CAUSES DAMAGE TO ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE SAME. Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. action is made. When Reservation May Be Made The reservation of the right to institute the separate civil action arising from the offenses charged shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime. Every crime gives rise to a penal or criminal action for the punishment of the guilty party; and also to civil action for the restitution of the thing, repair of the damage and indemnification for the losses.

The purpose of the rule requiring reservation is to prevent the offended party from recovering damages twice for the same act or omission.

(2)

Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law.

The proviso requiring that the reservation may be made before the prosecution starts to present evidence was brought about by the cases of Tactaquin v. Palileo, Manio v. Gaddi, where despite the appearance of a private prosecutor, the offended party was not able to present evidence on the damages because of the plea of guilty of the accused who was accordingly sentenced.

Civil liability is however, improper in illegal possession of firearms qualified by murder. The civil liability arising from the death may be claimed

In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof.

either in a separate action or impliedly instituted with the criminal action for murder or homicide."

The Supreme Court in ,he case of Reyes v. Diy, stressed

Effect of Failure to Allege Damages in Complaint or Information

the need to give the offended party in opportunity to make a reservation, and held that the mere appearance of a private prosecutor in the criminal case against the private respondents did not necessarily constitute such intervention on the part of the aggrieved party as could only import an intention on her part to press her claim for damages in said criminal case and waiver of her right to file a separate civil action for damages because the accused had pleaded guilty upon arraignment and was immediately sentenced, there was no chance for the aggrieved party to present evidence in support of her claim for damages and to enter i reservation in the record to file a separate civil action

The fact that there is, no claim or allegation of damages in Damage or injury to another is evidently the foundation of the civil action. Every person criminally liable for a felony is also civilly Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. It has, therefore, been held that even if the complaint or information is silent as to the damages or the intention to prove and claim them, the offender is still liable for them, and the Article 20 of the New Civil Code provides: offended has the right to prove and claim for them in the liable. the complaint of information is of no legal consequence.

89

Reservation Need not be Express but May Be Implied

The Court held that the dismissal was improper and ruled thus: "TRUE, APPELLANTS, THROUGH PRIVATE PROSECUTORS, WERE ALLOWED TO INTERVENE WHETHER PROPERLY OR IMPROPERLY WE DO NOT DECIDE HERE IN THE CRIMINAL ACTION AGAINST APPELLEE'S DRIVER, BUT IF THAT AMOUNTED INFERENTIALLY TO SUBMITTING IN SAID CASE THEIR CLAIM FOR CIVIL INDEMNITY, THE CLAIM COULD HAVE BEEN ONLY AGAINST THE DRIVER BUT NOT AGAINST APPELLEE WHO WAS NOT A PARTY THEREIN.
As a matter of fact, however, inspite of appellee's statements to the contrary in its brief, there is no showing in the record before Us that appellants made of record their claim for damages against the driver or his employer; much less does it appear that they had attempted to prove

informed thereof, then the actual filing of the civil action is even far better than a compliance with the requirement of an express reservation that should be made by the offended party before the prosecution presented its evidence.

While a reading of the afore-quoted provisions shows that the offended party is required to make a reservation of his right to institute a separate civil action, jurisprudence instructs that such reservation may not necessarily be express but may be implied which may be inferred not only from the acts of the offended party but also from acts other than those of the latter.

Where a separate civil action to recover the civil liability of the accused arising from the crime charged has been reserved, the heirs of the deceased are precluded from recovering damages in the criminal case against the accused, for they are not entitled to recover damages twice for the same criminal act of the accused.

In

the

Vintola

case,

the

fact

that

plaintiff

actively

intervening in the prosecution of the criminal case through a private prosecutor, is of no moment.

The trial court erred in awarding to the heirs of the deceased P30,000.00 as civil indemnity for his death despite their reservation.

In ruling that the Estafa case is not a bar to the institution of a civil action for collection, this Court held that:

such damages.

The failure of the court to make any pronouncement in its decision

"[I]T IS INACCURATE FOR THE VINTOLAS TO CLAIM THAT THE JUDGMENT IN THE ESTAFA CASE HAD DECLARED THAT THE FACTS FROM WHICH THE CIVIL ACTION MIGHT ARISE, DID NOT EXIST, FOR IT WILL BE RECALLED THAT THE DECISION OF ACQUITTAL EXPRESSLY DECLARED THAT 'THE REMEDY OF THE BANK IS CIVIL AND NOT CRIMINAL IN NATURE.'
This amounts to a reservation of the civil action in IBAA's favor for the Court would not have dwelt on a civil liability that it had intended to extinguish by the same decision."

concerning the civil liability of the driver and I or of his employer must therefore be due to the fact that the criminal action did not involve at all any claim for civil indemnity."

Effect of Reservation Later, in Jarantilla, the Court ruled that the failure of the trial court to make any pronouncement, favorable or It has been held that the prescription of action does not prescribe for the civil action that have been reserved in the criminal action. unfavorable, as to the civil liability of the accused amounts to a reservation of the right to have the civil liability litigated and determined in a separate action, for nowhere in the Rules of Court is it provided that if the court fails to determine the civil liability, it becomes no longer enforceable. Note: Under Section 2, Rule 111 during the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose Nothing in the records at hand shows that private respondent ever attempted to enforce its right to recover civil liability during the prosecution of the criminal action against petitioners. The civil liability arising from a crime may be waived. Waiver of Civil Liability Arising from Crime proceeding shall be tolled.

In the Bernaldes case, plaintiffs spouses Nicasio Bernaldes, Sr. and Perpetua Besas together with their minor son, Jovito, filed a complaint for damages against defendant Bohol Land Transportation Co. for the death of Jovito's brother Nicasio, Jr. and for serious physical injuries obtained by Jovito when the bus in which they were riding, fell off a deep precipice.

Defendant bus company moved to dismiss the complaint on the ground that in the criminal case earlier filed against its bus driver, plaintiffs intervened through their counsel but did not reserve therein their right to file a separate action for damages.

Thus, even if there was no reservation in the criminal case and that the civil action was not filed before the filing of the criminal action but before the prosecution presented evidence in the criminal action, and the judge handling the criminal case was No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be

90

litigated in a separate civil action.

the criminal case, to file any cause of action which could have been the subject thereof in a separate civil action, since the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case.

dredging contracts with the offended party obviously does not fall under Articles 32, 33 or 34 (on Human Relations) of the Civil Code. Neither does it fall under Article 2176 (on auasi-delict) of the Civil Code.

A court trying a criminal case cannot award damages in favor of the accused.

The task of the trial court is limited to determining the guilt of the accused and if proper, to determine his civil liability.

The accused is therefore forced to litigate separately his counterclaim against the offended party.

Under Section 3 of Rule 111, civil actions falling under Articles 32, 33, 34 or 2176 may proceed independently and separately from the criminal case.

A criminal case is not the proper proceedings to determine the private complainant's civil liability, if any.

If the accused does not file a separate civil action for quasi-delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-delict is filed. The only other possibility is for the accused's civil action to fall under Article 31 of the Civil Code which provides: ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN OBLIGATION NOT ARISING FROM THE ACT OR OMISSION COMPLAINED OF AS A FELONY, SUCH CIVIL ACTION MAY PROCEED INDEPENDENTLY OF THE CRIMINAL PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE LATTER. An example of a case falling under Article 31 is a civil action to recover the proceeds of sale of goods covered by a trust receipt.

The Court ruled in Cabaero v. Hon. Cantos, that a court trying a criminal case should limit itself to the criminal and civil liability of the accused, thus: [THUS,] THE TRIAL COURT SHOULD CONFINE ITSELF TO THE CRIMINAL ASPECT AND THE POSSIBLE CIVIL LIABILITY OF THE ACCUSED ARISING OUT OF THE CRIME.
The counterclaim (and cross-claim or third-party complaint, if any) should be set aside or refused cognizance without prejudice to their filing in separate proceedings at the proper time.

Moreover, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action.

To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law.

This

paragraph

addresses

the

lacuna

mentioned

in

Notably, the Court did not order the consolidation but allowed the civil action to proceed separately, otherwise, it would defeat the prohibition against a counterclaim.
Limitation on Separate Civil Action by an Accused in the Sandiganbayan

Such civil action can proceed independently of the criminal action for violation of the trust receipt law.

Cabaero on the "absence of clear-cut rules governing the prosecution ofimpliedly instituted civil action and the necessary consequences and implications thereof." The civil liability of petitioners for swindling respondent spouses and for maliciously filing a baseless suit must be litigated in a separate proceeding. Separate Civil Action By the Accused Thus, the accused may file a separate civil action based on quasi-delict arising from the same incident and may proceed simultaneously and independently of the criminal case against him as provided under section 1(6) which allows "the accused in

In such a case, the validity of the contract, on which the civil action is based, is not at issue.

A separate civil action for collection of sum of money filed by the accused against the offended party while the criminal case in the Sandiganbayan is pending cannot be consolidated with the criminal case, for the Sandiganbayan has no jurisdiction over collection cases, nor can it proceed independently of the criminal cases filed with the Sandiganbayan.

What is at issue is the violation of an obligation arising from a valid contract -- the trust receipt.

However, when the civil action is based on a purported contract that is assailed as illegal per se, as when the execution of the contract is alleged to violate the Anti-Graft and Corrupt Practices Act, Article 31 does not apply.

The accused's collection case for unpaid services from its

91

In such a situation, the contract if proven illegal cannot create any valid obligation that can be the basis of a cause of action in a civil case.

tracts can proceed independently of the criminal action.

Commencing with Pajarito v. Seneris68 followed by Ozoa v. Vda. de Madula69 and Catacutan v. Heirs of Kadusale,70 it is now settled that the subsidiary liability of the employer, including the amounts thereof, may be determined in the same criminal proceed ings and is reviewable either by writ of error or through a petitior for review on certiorari on pure questions of law.

This calls then for the application of the second paragraph of Section 2 of Rule 111 which states that "if the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits."

Under Article 1409 of the Civil Code, a contract "whose cause, object or purpose is contrary to law," or a contract that is "expressly prohibited or declared void by law," is void from the very beginning.

The appeal shall be governed by appeals in criminal cases, Consequently, the civil case for collection pending in the since this is but a continuation of the civil proceedings, the period to be counted not from the promulgation of judgment but from the notice of the order.

No party to such void contract can claim any right under such contract or enforce any of its provisions.

Malabon

Trial

Court

must

be

suspended

until

after

the

termination of the criminal cases filed with the Sandiganbayan.

Under Section 3(g) of the Anti-Graft and Corrupt Practices Act, entering into a contract that is manifestly and grossly disadvantageous to the government is "declared to be unlawful."

In contrast, where the civil action is based on a contract that can remain valid even if its violation may constitute a crime, the civil action can proceed independently.

The principle was stressed in Yusay v. Adil,71 a case of less serious physical injuries and damage to property thru reckless imprudence, with the Supreme Court's statement that: "The employer is in substance and effect, a party to the criminal case against his employee, considering the subsidiary liability imposed upon him by law.' Basis of Employer's Subsidiary Liability

If the act of entering into the contract is assailed as a crime in itself, then the issue of whether the contract is illegal must first be resolved before any civil action based on the contract can proceed.

Thus, in estafa thru violation of the trust receipt law, the violation of the trust receipt constitutes a crime.

However, the trust receipt itself remains valid, allowing a civil action based on the trust receipt to proceed independently It bears emphasis, however, that before the employer's subsidiary liability may be proceeded against, it is imperative that then should be a criminal action whereby the employee's Retroactive Application of Amendment It has been held although the incident and the actions arising therefrom were instituted before the promulgation of the If no criminal action was instituted, the employer's liability would not be predicated under Article 103 of the Revised Penal Code. 1985 Rules on Criminal Procedure, its provisions which are procedural may apply retrospectively. Subsidiary Liability To be treated differently is the subsidiary liability of the criminal negligence or delict and corresponding liability therefor are proved. of the criminal case.

Only the Sandiganbayan has the jurisdiction to decide whether the act of entering into such contract is a crime, where the salary grade of one of the accused is Grade 27 or higher, as in Criminal Cases Nos. 16889-16900 filed with the Sandiganbayan.

Article 31 speaks of a civil action "based on an obligation not arising from the act x x x complained of as a felony."

This clearly means that the obligation must arise from an act not constituting a crime. employer.

The judgment in the criminal action announcing the employee to be civilly liable is conclusive on the employer not only as to the actuality of the liability but also as to its amount, from which no appeal by the employer lies from the judgment of conviction.

Where, the act purporting to create the obligation is assailed as a crime in itself, no civil action based on such con -

92

The employer must be afforded due process, by holding a hearing to determine his liability on the basis of the conditions required by law, namely: (a) the existence of an employer-employee relation ship; (b) that the employer is engaged in some kind of agency (c) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he may commit); and (d) that said employee is insolvent. Obligations arising from crimes are governed by Article 1161 of the Civil Code, which provides that said obligations are governed by penal laws, subject to the provision ofArticle 2177 and the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of Book IV of the Civil Code.

Article 100 of the Revised Penal Code provides that every person criminally liable for a felony is also civilly liable.

In default of the persons criminally liable, employers engaged in any kind of industry shall be civilly liable for felonies committed by their employees in the discharge of their duties.

Article 33 of the Civil Code provides specifically that in cases of defamation, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party.

93

Such civil action proceeds independently of the criminal prosecution and requires only a preponderance of evidence. Explaining how the foregoing amendment came about, Justice Narvasa (later Chief Justice) in General v. Claravall, In Joaquin v. Aniceto, the Court held that Article 33 contemplates an action against the employee in his primary civil liability. It does not apply to an action against the employer to enforce its subsidiary civil liability, because such liability arises only after conviction of the employee in the criminal case or when the employee is adjudged guilty of the wrongful act in a criminal action and found to have committed the offense in the discharge of his duties. Any action brought against the employer based on its subsidiary liability before the conviction of its employee is premature. Filing Fees in Estafa cases Section 20 of Rule 141 Approved on September 14, 1999 provides that filing fees in estafa cases are also required where the offended party fails to manifest within fifteen days following the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted. Filing Fee as a Lien When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages. For the guidance of all concerned when a civil action is deemed instituted with the criminal action in accordance with In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial Section 1, Rule 111 of the Rules of Court because the offended party has NOT waived the civil action, or reserved the right to institute it separately, or instituted the civil action prior to the criminal action the rule is as follows: SEC. 2. When Separate Civil Action is Suspended The Court's plain intent to make the Manchester doctrine, requiring payment of filing fees at the time of the commencement of an action applicable to impliedly instituted civil actions under Section 1, Rule 111 only when "the amount of damages, other than actual, is alleged in the complaint or information has thus been made manifest by the language of the amendatory provisions." To hold otherwise, would be to permit litigants to continue availing of one more loophole in the rule on payment of filing fees, and would not serve to attain the purpose of the revised Sec. 1 of Rule 111, which is "to discourage the gimmick of libel complainants of using the fiscal's office to include in the criminal information their claim for astronomical damages in multiple millions of pesos without paying any filing fees." "THE LAST TWO (2) PARAGRAPHS PRESCRIBE A RULE DIFFERENT FROM THAT IN MANCHESTER, AND IN THE 1985 RULES ON CRIMINAL PROCEDURE.
Under the 1985 Rules, the filing fees for the civil action impliedly instituted with the criminal action had to be paid first to the Clerk of the Court where the criminal action was commenced, without regard to whether the claim for such damages was set out in the information or not.

a)

when "the amount of damages, other than actual, is alleged in the complaint or information" filed in court, then "the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial";

stated:

b)

in any other case, however i.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply "constitute a first lien on the judgment, except in an award for actual damages."

Under the 1988 Rules, however, it is only when 'the amount of damages, other than actual, is alleged in the complaint or information that the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial.

The ruling in General v. Claravall, especially the last subparagraph above-quoted, was actually intended to apply to a situation wherein either: (1) the judgment awards a claim not specified in the pleading, or (2) the complainant expressly claims moral, exemplary, temperate and/or nominal damages but has not specified ANY amount at all, leaving the quantification thereof entirely to the trial court's discretion and NOT to a situation different where types the litigant specifies sought be some not amounts or parameters for the awards being sought, even though the of damages separately or individually quantified.

In any other case i.e., when the amount of damages other than the civil action "to enforce civil liability against the accused by way of moral, ages." nominal, temperate or exemplary damages shall (merely) constitute a first lien on the judgment except in an award for actual dam-

94

Suspension of Civil Action Arising from Crimes Except for civil actions provided for in Articles 32, 33, 34 and 2176 of the Civil Code, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action.

termination of the criminal cases filed with the Sandiganbayan.

where the Civil action does not also fall under Articles 32, 33, 34 and 2176 of the Civil Code.

The suspension of the civil case for collection of sum of money (based on an obligation arising from contracts alleged to be a crime pending before the Sandiganbayan) will avoid the possibility of conflicting decisions between the Sandiganbayan and the Malabon trial court on the validity of NIC's dredging contracts. In fine, a civil action may not be suspended under Rule 111 where the action is not to enforce civil liability from the crime charged.
Consolidation of Civil with Criminal Action Even if not Arising from Crime

The action contemplated herein is a civil action arising from a crime.

If the Sandiganbayan declares the dredging contracts If reserved or filed separately and a criminal case is filed, it has to be suspended to await final judgment in the criminal action. illegal and void ab initio, and such declaration becomes final, then NIC's civil case for collection of sum of money will have no legal leg to stand on.

May consolidation of civil actions with the criminal action be allowed where the civil action is not to enforce civil liability arising from a crime?

In Naguiat v. Intermediate Appellate Court, the petitioner It may, however, be consolidated upon application with the court trying the criminal action. However, if the Sandiganbayan finds the dredging filed a complaint for specific performance with damages to compel the respondent to deliver to him certificates of title covering their lots which he had already paid for under a contract to sell. Article 31 speaks of a civil action "based on an obligation not arising from the act x x x complained of as a felony."
No suspension if civil action does not arise from Crime

contracts valid, then NIC's collection case before the Malabon trial court can then proceed to trial.

A criminal action was likewise filed against the respondent for violation of P.D. No. 957 regulating the sale of subdivision, etc., and providing penalties therefor.

This clearly means that the obligation must arise from an act not constituting a crime.

In Gandiongco u. Penaranda, the Supreme Court affirmed Judge Penaranda's refusal to suspend the civil case for legal separation and support with damages based on concubinage

Petitioner moved to consolidate the two (2) cases on the basis of Rule 111, Section 3(a).

Where, the act purporting to create the obligation is assailed as a crime in itself no civil action based on such contracts can proceed independently of the criminal action.

despite the filing of a concubinage case with the municipal court.

His reason is that Section 2 of Rule 111 of the 1985 Rules on Criminal Procedure refers to civil actions to enforce the civil liability arising from the offense charged.

The trial court granted consolidation but the Court of Appeals reversed the order.

This calls then for the application of the second paragraph of Section 2 of Rule 111 which states that "if the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits."

The Supreme Court held that the civil actions that may be An action for legal separation is not to recover civil liability in the main, but is aimed at the conjugal rights of the spouses and their relations to each other within the contemplation of Articles 97 to 108 of the Civil Code. consolidated under Section 3(a), Rule 111 is one for civil liability arising from the criminal offense or of ex-delicto of which the civil action in this case is not one, but which is based on the contract to sell or a civil action arising ex-contracto, hence, Rule 111 is not applicable. The principle applies even with the 1988 Amendments

Consequently, the civil case for collection pending in the Malabon Trial Court must be suspended until after the

95

The Supreme Court, however, justified the consolidation of the action for specific performance with the criminal action for violation of P.D. No. 957 under Section 1, Rule 31 of the Rules of Court as interpreted in Canos v. Peralta,* where the Court sustained the order of a trial court to consolidate a civil action (an action for the recovery of wage differential, overtime and termination pay, plus damages) with a criminal action (for violation of the Minimum Wage Law), it was held that: "A COURT MAY ORDER SEVERAL ACTIONS PENDING BEFORE IT TO BE TRIED TOGETHER WHERE THEY ARISE FROM THE SAME ACT, EVENT OR TRANSACTION, INVOLVE THE SAME OR LIKE ISSUES, AND DEPEND LARGELY OR SUBSTANTIALLY ON THE SAME EVIDENCE, PROVIDED, THAT THE COURT HAS JURISDICTION OVER THE CASES TO BE CONSOLIDATED AND THAT A JOINT TRIAL WILL NOT GIVE ONE PARTY AN UNDUE ADVANTAGE OR PREJUDICE THE SUBSTANTIAL RIGHTS OF ANY OF THE PARTIES, X X X" The obvious purpose of the above rule is to avoid multiplicity of suits, to guard against oppression and abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial court; in short, the attainment of justice with the least expense and vexation to the parties litigants. * * *

imposable accessory or other penalties, included in the civil liability arising from such offenses or predicated therein irrespective of kind, nature, value or amount thereof, no longer applies since the civil action to be consolidated does not arise from the criminal offense charged.

The Court allowed the indemnity in the foregoing case despite the erroneous procedure of petitioner in seeking a remedy in filing a petition for certiorari instead of an appeal from the erroneous order of the trial court dismissing the action on the ground prescription since it is an action for quasi-delict.

The Court stressed that it is "loathe to deprive petitioners The period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall not run, refer to the civil action arising from a crime that has not been reserved or when it is filed ahead of the criminal action. Extinction of the penal action does not carry with it The civil action that may be reserved is the civil arising from the crime. However, the civil action based on delict may be extinThe civil arising from a quasi-delict is not suspended but may proceed simultaneously. guished if there is a finding in a final judgment that the act or omission from which the civil liability may arise did not exist. extinction of the civil. Effects of Judgment of Acquittal of the indemnity to which they are entitled by law and a final judgment of conviction based solely on technicality."

The subsidiary liability may only be enforced after the final judgment of conviction.

Even if there is a finding in a final judgment that the act or omission from which the civil might arise did not exist, this would only refer to the civil liability arising from the offense since this is the only civil liability that is deemed instituted with the criminal action.

The consolidation of two (2) cases where petitioner's counsel may act as counsel for the plaintiff in the civil case and private prosecutor in the criminal case, will be conducive to the early termination of the two (2) cases, and will redound to the benefit and convenience of the parties; as well as to the speedy administration of justice.

However, prescription of the cause of action quasi-delicto does not operate as a bar to in action to enforce the civil liability arising from the crime especially where the latter action had been expressly reserved.

It is a fundamental postulate of our law that "every person criminally liable for a felony is also civilly liable."

The dismissal of the action based on culpa aquiliana is not a bar to the enforcement of the subsidiary liability of the And even if an accused is acquitted of the crime charged, such will not necessarily extinguish the civil liability, unless the court declares in a final judgment that the fact from which the Once there is a conviction for a felony, final in character, the employer becomes subsidiarily liable if the commission of the in criminal cases which is crime was in the discharge of the duties of the employer. civil might arise did not exist. employer.

Under this principle, civil actions under Articles 32, 33, 34 and 2176 may be consolidated with the criminal action subject to jurisdictional constraints.

The

rule

on

jurisdiction

In the landmark case of Padilla v. Court of Appeals, the Supreme Court en bane, thru Justice Hugo Gutierrez emphasized that the court may award civil liability in the same proceedings

determinable by the prescribed penalty regardless of other

96

ever if the accused is acquitted. Even

Duty of Court to Award Civil Liability before the 1985 amendments, the settled

pronouncement on the civil liability of the accused and the complainant could file a petition for mandamus to compel the trial court to include such civil liability in the judgment of acquittal.

This was to be followed in People v Jalandoni, Maxima v. Geroch, Vizconde u. IAC, People v. Ligon, and other cases, until the doctrine found its way in the third paragraph of Section 2, Rule 120 of the 1985 Rules on Criminal Procedure, which provided that "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."

jurisprudence is that it is the duty of the trial judge to award civil liability in favor of the offended party despite the acquittal of the accused unless the fact from which the civil might arise does not exist. 1) In a case, the trial judge in not having included civil liability in the decision, stated that it cannot exercise discretion alone in determining the liability upon the mere allegations, the same being evidentiary. 2) the decision contains a declaration that the liability of the accused is not criminal but only civil; or the civil liability is not derived from or based on the criminal act of which the accused is acquitted. the acquittal is based on reasonable doubt; Acquittal in a criminal case does not bar continuation of the civil case connected therewith where:

Under The Revised Rules on Criminal Procedure: "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.

3)

Considering, however, the fact that the trial court's attention was drawn to the existence of a lapsus in the decision, in the motion for reconsideration filed by the complainant, within the reglementary period, and taking into account the petition to supply what had been omitted, the trial judge could have set the motion for reconsideration for hearing, in order to receive evidence, as to the value of the properties admittedly stolen by the accused, or to the return of the goods, if it was still feasible. In an identical case, where the lower court had failed to provide for the corresponding civil liability, the Supreme Court ordered the said case remanded to the court of origin, for the purpose of determining the civil liability of the accused. In Caina v. People, however, the extinction of the liability civil was inferred from a finding that there is no negligence even The principle applies even in cases of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist. if the acquittal is based on failure to prove guilt beyond reasonable doubt. Similarly, "extinction of the penal action does not carry with it the extinction of civil liability unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exists." Thus, the acquittal of the accused from the criminal charge will not necessarily extinguish the civil liability unless the Court declares in the judgment that the fact from which the civil liability might arise did not exist.

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

There has been a change in the language of the rule.

Whereas the 1985 rule was more categorical in requiring that "the judgment shall make a finding on the civil liability of the accused in favor of the offended party," the present rule simply states that "the judgment shall determine if the act or omission from which the civil liability might arise did not exist."

It seems fairly obvious, however, that despite the acquittal of the accused, if the act or omission from which the civil liability might arise do exist, when the acquittal is merely because of failure to prove the guilt of the accused beyond reasonable doubt then the court should award the civil liability in favor of the offended party in the same criminal action. The duty of the court to a award, civil liability inspite of acquittal is compellable by mandamus.

Similarly, Sanchez v. Far East Bank and Trust Company, held that recourse to appeal the civil aspect from a judgment of acquittal may only be resorted if the nature of he court's judgment fall under any of the three categories stated above, as In Lontoc and Jarantilla, the court held that under the present jurisprudential matters, where the trial court acquits the accused on reasonable doubt, it could very well make a The civil is deemed instituted with the criminal here the reiterated in Salazar v. People (supra) otherwise, the extinction of the penal extinguish the civil.

97

presence of any instances precluding the automatic institution of the civil action together with the criminal complaint. Under the Civil Code, when a person, claiming to be injured by a criminal offense, charges another with the same, for Thus, a separate civil action may no longer be prosecuted.
Principles Allowing- Separate Civil Action Despite Acquittal Even Without Reservation

There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of.

which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal The second instance is an acquittal based on reasonable doubi on the guilt of the accused. proceedings, the complainant may bring a civil action for This is the situation contemplated in Rule 111 of the Rules of Court.

CIVIL ACTIONS BASED ON CRIME In Calalang v. Intermediate Appellate Court, where a civil action for damages based on the crime of murder was held as not extinguished by the dismissal of the criminal case by the Fiscal for failure of the complaint to establish a prima facie case, the Supreme Court reiterated the case of People u. Velez, that the dismissal of the information or the criminal action (upon motion of the fiscal) does not affect the right of the offended party to institute or continue the civil action already instituted arising from the offense, because such dismissal or extinction of the penal action does not carry with it the extinction of the civil action.

damages against the alleged offender.

Such civil action may be supported by a preponderance of evidence.

In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only

Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. This is the situation contemplated in Article 29 of the Civil Code where the civil action for damages is "for the same act or omission. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination proceedings. of the criminal Although the two actions have different purposes, the matters discussed in the civil case are similar to those discussed in the criminal case. Kinds of Acquittal However, the judgment in the criminal proceeding cannot In a criminal action, our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. be read in evidence in the civil action to establish any fact there determined, even though both actions involve the same act or omission.

The reason most often given for this holding is that the two proceedings are not between the same parties.

Different rules as to the competency of witnesses and weight of evidence necessary to the findings in the two proceedings also exist.

In a criminal action, the State must prove its case by evidence which shows the guilt of the defendant beyond reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by preponderance of evidence only. Therefore, the insufficiency of evidence to support a murder charge does not imply that there is no sufficient evidence to support the civil case based on the same alleged act.

First is an acquittal on the ground that the accused is not the author of the act or omission complained of.

The reason for this rule is that the parties are not the same and secondarily, different rules of evidence are applicable.

This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission.

Hence, notwithstanding herein petitioner's acquittal, the Court of Appeals in determining whether Article 29 applied, was not precluded from looking into the question of petitioner's negligence or reckless imprudence.

98

Illustrative Case: IN A PROSECUTION FOR ESTAFA OR SWINDLING THROUGH FALSIFICATION OF A COMMERCIAL DOCUMENT, THE CIVIL IS DEEMED INSTITUTED WITH THE CRIMINAL IN THE ABSENCE OF ANY INSTANCES PRECLUDING THE AUTOMATIC INSTITUTION OF THE CIVIL ACTION TOGETHER WITH THE CRIMINAL COMPLAINT (THE OFFENDED PARTY WAIVES THE CIVIL ACTION, RESERVES THE RIGHT TO INSTITUTE IT SEPARATELY OR INSTITUTES THE CIVIL ACTION PRIOR TO THE CRIMINAL ACTION).
Respondent's right to damages was deemed prosecuted in the criminal proceeding.

delict. In This was the teaching ofElcano v. Hill, where it was expressly held that the extinction of the civil liability referred to in par. (c), Sec. 2 of Rule 111 refers exclusively to civil liability arising from crime; whereas, the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. In other words, an acquittal based on the finding that the facts upon which civil liability did not exist, bars the filing of an independent civil action if it is based on the crime. Thus, a separate civil action may no longer be prosecuted where the accused was acquitted on the ground that the accused Application of the rule was illustrated by Justice Relova in Marcia v. Court of Appeals, as follows: "Otherwise stated, unless the
act from which the civil liability arises is declared to be non-existent in the final judgment, the extinction of the criminal liability will not carry with it the extinction of the civil liability.

prosecution

for

estafa

or

swindling

through

falsification of a commercial document, the civil is deemed instituted with the criminal where the in the absence of any instances precluding the automatic institution of the civil action together with the criminal complaint (the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action).

Respondent's right to damages was deemed prosecuted in the criminal proceeding.

Thus, a separate civil action may no longer be prosecuted where the accused was acquitted on the ground that the accused has not committed the crime Imputed to her.

has not committed the crime imputed to her.

Civil Actions Not Based on Crime Not Extinguished

This refers to the Civil liability arising from the crime that was deemed instituted with the criminal.

COMPARE
Where petitioner sought to enforce respondent's obligation to make good the value of the checks in exchange for the cash he delivered to respondent such civil action may proceed independently of the criminal proceedings and regardless of the result of the other (under Article 31) and its filing after the dismissal of the criminal case for estafa and maybe prosecuted without violating the rule against forum shopping, since they are based on different causes of action, expressly allowed by law.

Acquittal in
Thus, if a person is charged with homicide and successfully pleaded self-defense, his acquittal by reason thereof will extinguish his civil liability. He has not incurred any criminal liability.

a criminal

action

bars

the

civil arising

therefrom where the judgment of acquittal holds that the accused did not commit the criminal acts imputed to him.

As earlier ruled by the Supreme Court, the civil liability

On the other hand, if his acquittal is, for instance, due to the fact that he was not sufficiently identified to be the assailant, a civil action for damages may be maintained. His acquittal is not due to non-existence of the crime from which civil liability might arise, but because he was not, in the eyes of the court, sufficiently identified as the perpetrator.

that is deemed extinguished is the civil liability based on crime.

But not the civil liability based on sources of obligation other than the criminal offense although arising from the same act or omission.

The dismissal of the criminal case is not res judicata even if the civil is alleged to arise from delict, since the nature of the cause of action is determined by the facts alleged in the complaint as constituting a cause of action. Where the court states that the evidence throws no light on the cause of fire and that it was an unfortunate accident for which the accused cannot be held responsible, this declaration fits well into the exception of the rule which exempts the accused from civil liability.

The second sentence of Section 3(b) before under the 1985 Rules provides that in other cases, the person entitled to the action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered.

What Civil Action Is Extinguished

Likewise, in Albornoz v. Albornoz,
33

it was the ruling that "where

The rule of extinction was limited to civil actions based on culpa criminal and does not include culpa aquiliana or quasi-

the judgment in a criminal action contains an express declaration that the basis of claimant's action did not exist, the latter's action for civil liability is barred under Section l(d), Rule 107 of the Rules of Court."

99

The rule clearly contemplates the filing of a separate civil action. Article 29 of the Civil Code expressly provides that when the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted.

each other, and a favorable and unfavorable judgment in either case cannot be considered as a bar to the other.

Mendoza v. Arrieta, will not find application.

This provision clearly provides for a separate civil action A private prosecutor may intervene in the criminal action without waiving the right to file a separate civil action under Articles 32, 33, 34 and 2176 regardless of the result of the criminal action. for restitution, reparation and indemnity for the damages suffered by the offended party without reference to the source of the obligation but was held to refer to Article 29 of the Civil Code which provides that when the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved On the issue of whether or not an action for damages beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted.

Such action requires only a preponderance of evidence.

The civil liability therefor under Articles 32,33, 34 and 2176 or those where the source of civil obligation is not based on the criminal offense is not affected by the result of the criminal action.

arising from a vehicular accident may plaintiff recover damages against the employer of the accused driver both in the criminal case (delict) and the civil case for damages based on quasidelict, but not recover twice for the same act, the court wrote:

A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code, with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime.

In other words, the extinction of the civil liability referred to in par. (e) of Section 3, Rule 111 (1964 Rules), refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused.

"Consequently, a separate civil action for damages lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both sides, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary."

A distinction exists between the civil liability arising from a crime and the responsibility for quasi-delict or culpa contractual.

The same negligence causing damages may produce civil

Extinction of Penal Does not Extinguish Civil Liability

liability arising from a crime under the Penal Code, or create an action for quasi-delicto or culpa extra-contractual under the Civil Code.

In Mendoza v. Arrieta, it was held that where the acquittal Briefly stated, culpa aquiliana includes voluntary and negligent acts which may be punishable by law. was not based upon reasonable doubt, a civil action for damages can no longer be instituted.

Therefore, the acquittal or conviction in the criminal case is entirely irrelevant in the civil case.

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.
Criminal Actions To Recover Civil Liability Arising From Delict and Civil Actions Based on Quasi-Delict may Proceed Simultaneously

It was clarified in Gula v. Dianila, that Mendoza v. Arrieta was based on culpa criminal for which reason "we held the suit for damages barred." Given the 1988 amendments, where the accused is Since the cause of action of plaintiff-appellant is based on culpa aquiliana and not culpa criminal thus precluding the application of the exception in Sec. 3(c) of Rule 111 and the fact that it can be inferred from the criminal case that accused was acquitted on reasonable doubt because of dearth of evidence and lack of veracity of the two principal witnesses, the doctrine in acquitted on the ground that his guilt has not been established beyond reasonable doubt or that the obligation is purely civil without the court making a finding on the civil liability of the accused in favor of the offended party, what would be the effect of such judgment on the civil aspect of the case. Will the foregoing rulings permitting the prosecution of a separate civil
Effect of 1988 Amendment and The Revised Rules on Criminal Procedure

Thus, a civil action arising from the crime charged and a civil action with the civil code provisions as the source of obligation may proceed simultaneously and independently of

100

action still apply?

SEC. 3. When Civil Action may Proceed Independently

prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigant, would have the easily sustained if a not even consolidation, their thereby preventing unseeming, and perhaps

In Heirs of the Late Teodoro Guaring v. Court of Appeals, the court wrote that Sec. 2(b), Rule 111 of the Rules of Criminal Procedure which provides that extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist" and that this rule contemplates a civil action arising from a crime and not a civil action arising from a quasi delict. Parenthetically, "physical injuries" under Article 33 is used in a generic sense. The civil action which should be suspended after the institution of the criminal action is that arising from delict and not the civil action based on quasi-delict or culpa aquiliana.

ludicrous, spectacle of two (2) judges appreciating, according to respective orientation, perception prejudice, the same facts differently, and thereafter rendering conflicting decisions.

A civil case for replevin may proceed independently of the criminal cases for falsification and grave coercion. consummated, frustrated and attempted While both cases are based on the same facts, the quantum of proof required for holding the parties liable therein differ.

The

court

underscored

the

statement

in

Tayag

v.

It

includes

Alcantara, that the civil liability for the same act considered as a quasi delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed.

homicide and death arising from delict which includes reckless imprudence or quasi-delict. Consolidation of Criminal and Civil Cases Libel A criminal case for libel and a separate and independent civil action to enforce the civil liability arising from the libel may be consolidated for joint trial, where the two (2) cases involve common or identical questions of fact and law, and would even have the same witnesses; and thus avoid multiplicity of suits, prevent delay, clear congested dockets, and save unnecessary costs and expenses, and simplify the work of the trial court.

Further cited by the court to the same effect is Gula u. Dianala.

SEC. 4. Effect of Death on Civil Actions Death of Accused on Appeal The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict.

In Bunag v. Court of Appeals, a separate action for Damages based on forcible abduction with rape was allowed despite prior dismissal of case by the Fiscal at the preliminary investigation stage.

Jurisdiction of Court to Pass upon Motion for Reconsideration of Offended Party in Connection with Civil Liability Despite Appeal by Accused

In fact Mckee v. IAC stressed the need for consolidation of criminal and civil actions to prevent conflicting decisions.

In Torrijos v. Court of Appeals,' a case of estafa, where The final decision of guilt in criminal action is not relevant despite the death of the accused during the pendency of his appeal, which thereby extinguished his criminal liability, the appeal was allowed to proceed with respect to the issue of civil There is no legal impediment against such consolidation. liability of the accused (arising from a contract of purchase and sale). to civil action based on quasi-delict.

If the court, independently of the appeal of the accused, has jurisdiction, within fifteen days from the date of the judgment, to allow the appeal of the offended party, it also has jurisdiction to pass upon the motion for reconsideration filed by the private prosecution in connection with the civil liability of the accused.

Section 1, Rule 31 of the Rules of Court which seeks to avoid multiplicity of suits, guard against oppression and abuse,

(The rule was not observed in People v. Satorre, where the case for Murder was dismissed in view of the death of the

101

appellant.)

extinguished by his death, but the civil liability remains. "1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based thereon.

However, in People u. Salcedo, where the accused in a murder case died during appeal, the case was dropped with respect to his criminal liability only.

The claim of the government for the civil liability survives but only if the offense can be proved.

The This was followed by People v. Sendaydiego a case of malversation thru falsification, where it was held that despite the death of the accused, the Supreme Court can continue to exercise appellate jurisdiction over an accused's possible civil liability for the money claims of the claimants arising from criminal acts complained of, as if no criminal case has been instituted against him, thus making applicable, in determining his civil liability, Article 30 of the Civil Code.

Supreme

Court

continues

to

exercise

appellate

As opined by Justice Regalado, in this regard, the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex in senso strictiore.

jurisdiction over the petitioner's possible civil liability for the money claims of the government arising from the alleged criminal acts complained of, in much the same way as when no criminal action had been filed. No separate civil action need be instituted. 2. Thus, as every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to a civil action for the restitution of the thing, repair of the damage and indemnification for the losses whether the particular act or omission is done intentionally or negligently or whether or not punishable by law, subsequent decisions of the Supreme Court held that while the criminal liability of an appellant is extinguished by his death, his civil liability subsists.

Corollarily,

the

claim

for

civil

liability

survives

notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict.

When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, preponderance of evidence shall likewise be sufficient to prove the act complained of.)

Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: a. b. c. d. 3. Law Contracts; Quasi-contracts; xx x; and Quasi-delicts.

The Supreme Court further stated that Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is the basis of the civil liability for which his estate would be liable.

In such case, the heirs of the deceased appellant are substituted as parties in the criminal case and his estate shall answer for his civil liability.

Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended.

ABANDOMENT Though the death of an accused-appellant during the pendency of an appeal extinguished his criminal liability, his civil liability survives. BASED ON CRIME

OF

SENDAYDIEGO;

DEATH

OF

ACCUSED PENDING APPEAL EXTINGUISH CIVIL LIABILITY

People v. Bayotas, overruled People v. Sendaydiego, where Extinction of criminal liability does not necessarily mean that the civil liability is also extinguished. it was held that despite the death of the accused during the pendency of the appeal, the proceedings shall continue for the purpose of determining his civil liability arising from the crime. In People v. Navoa, and in People v. Sendaydiego, the Supreme Court ruled that only the criminal liability (including the fine, which is pecuniary, but not civil) of the accused is The Supreme Court en bane held in Bayotas (which is a case of rape) that: 4.

This separate civil action may be enforced either against the executor/administrator or the estate of the accused depending on the source of obligation upon which the same is based as explained above.

Finally, the private party need not fear a forfeiture of his right to file this separate civil action by prescription, in

102

cases where during the prosecution of the criminal action and prior to its extinction, the private offended party instituted together with the civil action.

proposal was for the Court to continue in the same proceedings vith the other civil actions that were deemed impliedly instituted vith the criminal, despite the death of the accused. Since, however, he Revised Rules on Criminal Procedure limited the civil liability leemed instituted with the criminal action to the civil liability aris-ng from the offense, there is no more need for the proposal since with the death to the accused, the civil liability arising from the offense is also extinguished. The rule was, however, retained by the Court to apply to the separate civil actions under Section 3 of the same Rule. This would, however, only apply if these actions are consolidated with the criminal. Otherwise, since these are purely civil actions, the effects of death should be governed by the Rules on Civil procedure.16

Section 7 limits a prejudicial question to a "previously instituted civil action" in order to minimize possible abuses by the subsequent filing of a civil action as an afterthought for the purpose of suspending the criminal action.

In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with the provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension prescription. on a possible deprivation of right by

a.

The rule on precedence of the criminal action does not apply when the civil action is a prejudicial question.1

b.

Prejudicial question is an exception to precedence of criminal case.

Thus the Supreme Court applying this set of rules to the case at bench held that the death of the appellant extinguished his criminal liability and the civil liability based solely on the act complained dismissed." of, i.e., rape. Consequently, the appeal was
COMMENT:

SEC. 5. Judgment in Civil Action not a Bar

Prejudicial Question, Defined: Elements of a Prejudicial Question

According to jurisprudence, a prejudicial question involves a similar issue in a civil action which was pending when the criminal action was instituted or before the amendment, in a civil action filed after the institution of the criminal action.

Bayotas was reiterated in People v. Rosalijos,ll where during the pendency of the appeal convicting the accused of murder, the latter died, the court ordered the dismissal of the criminal liability of accused and ordered the substitution of his heirs as to the civil liability.

WHILE EVERY PERSON CRIMINALLY LIABLE IS ALSO CIVILLY LIABLE, THE CONVERSE IS NOT TRUE. EXTINCTION OF THE PENAL DOES NOT CARRY WITH IT EXTINCTION OF THE CIVIL UNLESS THE EXTINCTION PROCEEDS FROM A DECLARATION IN A FINAL JUDGMENT THAT THE FACT FROM WHICH THE CIVIL MIGHT ARISE DID NOT EXIST.
Similarly, a final judgment rendered in a civil action absolving the defendant from the civil liability is no bar to a criminal action unless the civil is a prejudicial question which involves an issue similar or intimately

It is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.

However, in light of Bayotas, the appeal was dismissed both as to the criminal and civil aspects thereof.

The ruling in Bayotas and its progeny which require the filing of a separate civil action arising from the same act or omission where the accused dies during the pendency of the action was criticized since these civil actions are deemed impliedly instituted with the criminal action unless reserved waived or a separate civil action was filed. COMMENT ON THE NEW RULE

related to the issue raised in the criminal, the resolution of which determines whether or not the criminal action may proceed.

The doctrine of prejudicial question comes into play generally in a situation where civil and criminal actions are SEC. 6. Suspension by Reason of Prejudicial Question pending and the issues involved in both cases are similar or so closely-related that an issue must be pre-emptively resolved in the civil case before the criminal action can proceed. Thus, the existence of a prejudicial question in a civil case is alleged in the criminal case to cause the suspension of the latter pending final determination of the former.

SEC. 7.
The original proposal of the Committee was to modify Bayotas. The

Elements of Prejudicial Question

103

that indeed the alleged prior deed of sale was a forgery and Where the civil case is not based on a fact distinct and separate from the estafa, as both actions arose from the same fact or transaction, the former does not constitute ,a prejudicial question, for the determination of the criminal action. CASES a. An Action for Nullity of a Deed of Sale Based on the Ground that It is a Forgery and is Spurious is Prejudicial to a Criminal Action for Estafa based on the Execution of said Sale b. The pendency of an intestate proceeding will not constitute a prejudicial action in a criminal case for Theft of standing crops filed by a person claiming to have a valid contract of lease on the property from its legal owner against a person claiming co-ownership of the land leased whose claim is pending in an intestate proceeding." spurious.

do not involve the pivotal question of who planted the sugarcane and, therefore, are not determinative juris et de jure of guilt or innocence in the Criminal Action.

If as the Guanteros contend, they were the ones who did the planting, that is a matter of defense that may be interposed by them in the Criminal Action.

It is not an issue that must be preemptively resolved in the civil case before proceedings in the Criminal Action may be undertaken.

Even if the Intestate Court should annul the project of partition and uphold private respondent's ownership of the lots herein, that would not be determinative of the criminal responsibility of private respondents for theft of the standing sugar crop, which petitioner claims he has planted in good faith by virtue of a valid contract of lease with the mortgagee.

For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the criminal action pending the determination of the civil, it must appear not only that the civil case involves the same facts upon which the criminal prosecution is based, but also that the resolution of the issue raised in said civil action would be necessarily determinative of the guilt or innocence of the accused. c.

d.

A civil action for accounting and recovery of sum of money are not determinative of the innocence or guilt of petitioner in the prosecution for seventy-five (75) counts of estafa The issues in the civil case for accounting and recovery of sums of money are not determinative of the innocence or guilt of the petitioner in the prosecution of the seventy-five (75) counts of estafa.
* * * the only question to be resolved in the criminal cases for estafa is whether or not the petitioner's acts of receiving and collecting monies from the customers in payment for goods purchased, and failing to immediately account for and deliver the said collections having deposited them in his own personal bank accounts constitute estafa under Article 315(l-b) of the Revised Penal Code. * * * a finding in the civil case for accounting and recovery of a sum of money is not juris et de jure determinative of the innocence of the petitioner in the subsequent seventy-five (75) criminal cases of estafa filed against him.

Ejectment: Pendency of an ejectment case does not constitute a prejudicial question to the charge of the theft filed by alleged lessee against a person claiming co-ownership rights with the lessor, for illegal harvest of sugarcane on land leased.

Where the defense (as defendant) in the civil case of the nullity and forgery of the alleged prior deed of sale in favor of plaintiff in the civil case and complaining witness in the criminal case is based on the very same facts which would be necessarily determinative of the guilt or innocence as accused in the criminal case, the civil case constitutes a prejudicial question.

Pendency of action for damages based on illegal possession of property not a prejudicial question to the charge of theft filed by the alleged lessee against the plaintiff in the damage suit.

If the first alleged sale is void or fictitious, then there would be no double sale and petitioner would be innocent of the offense charged.

As the two cases are based on the same facts, and the entitlement to damages being predicated on the unlawful taking treated of in the Criminal Action, no necessity arises for that civil case to be determined ahead of the Criminal Action. e. A civil case for Annulment of Deed of Sale not prejudicial to Criminal Case for Estafa Arising from Issuance of Rubber Check."

A conviction in the criminal case (if it were allowed to proceed ahead) would be a gross injustice and would have to be set aside if it were finally decided in the civil action

Stated differently, the issues raised in the civil cases

At the time the acts complained of in CR No. 1423-1 were committed, the deed of sale sought to be later

104

annulled in CV No. 8769 was binding upon the parties thereto, including the petitioners.

A Civil Case for the Collection of a Sum of Money Allegedly Embezzled is not a Prejudicial Question to the Criminal Action arising from the same Acts of Embezzlement

c.

Article 33 manifests that as between the civil and criminal

cases arising from the same fraudulent act, the doctrine of the prejudicial question cannot be invoked as both cases may proceed independently of each other, i.e., in the same way that the civil suit can be tried, so must the criminal prosecution run its course.

The two (2) essential elements for a prejudicial question to exist are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue in the civil action determines whether or not the criminal action may proceed. As correctly observed by the appellate court, the issue in CR No. 1423-1 is whether or not the petitioners could be found guilty under Batas Pambansa Big. 22 or under Article 315, No. 2(d) of the Revised Penal Code.

Thus, as teller authorized to receive payments of electric bills from the electric cooperative's customers, Godofreda allegedly embezzled to her own use money collected from different consumers.

When Action for Annulment of Marriage Prejudicial to Bigamy Case

When she refused to pay the amount defrauded, the cooperative sued her for damages. Later, at the instance of the cooperative, several informations for estafa were filed against her before the municipal court.

a.

A civil action involving the nullity of a second marriage is of prejudicial character and should be resolved before the criminal case for bigamy.

After pleading not guilty to the estafa charges, Godofreda moved to suspend the proceedings in the criminal case on the ground that the collection suit is a prejudicial question.

Likewise, a civil action involving title to property should first be decided before a criminal action for damages to said property.

HELD:

The reason is that in said cases the procedure in a

a. No prejudicial question exists.

civil proceeding and not of the criminal case is more fitted to decide, as for example, the issue of validity or nullity of the marriage.

More

specifically,

what

private

respondents
The issue in the civil action is the cooperative's right to recover from Godofreda the amount allegedly embezzled by the latter.

complained of in CR No. 1423-1 is that the Checks issued by petitioners in their favor were dishonored for lack of funds upon due presentment to the drawee bank.

The issue in the criminal case is whether her failure to account for

But in all such cases the prejudicial civil question refers to a dispute of purely civil character but connected in such manner to the crime on which the criminal case is based and is determinative of the guilt or innocence of the accused.

Undeniably, at the time of said dishonor, petitioners' obligation to pay private respondents pursuant to the deed of sale, continued to subsist.

her collections as a teller constitutes estafa under Article 315 of the Revised Penal Code.

A finding in the civil case for or against Godofreda is not juris et dejure determinative of her innocence or guilt in the estafa cases.

And because petitioners' checks were dishonored for lack of funds, petitioners are answerable under the law for the consequences of their said acts. B. MOREOVER ARTICLE 33 OF THE CIVIL CODE EXPLICITLY STATES THAT IN CASE OF DEFAMATION, FRAUD AND PHYSICAL INJURIES A CIVIL ACTION FOR DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM THE CRIMINAL ACTION, MAY BE BROUGHT BY THE INJURED PARTY.
Such civil action shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence.

A civil action filed by the husband involving the nullity of a second marriage is of prejudicial character and should be resolved before the criminal case for bigamy.

And even if CV No. 8769 were to be finally adjudged to the effect that the said deed of sale should be annulled, such declaration would be of no material importance in the determination of the guilt or innocence of petitionersaccused in CR No. 1423-1.

In such a case, the prejudicial civil question refers to a dispute of purely civil character but connected in such manner to the crime on which the criminal case is based and is determinative of the guilt or innocence of the accused.

105

The

rule

does

not,

however,

apply

where

the

bigamy case pending decision on the validity of the two marriages. The Court held that the mere fact that there are actions to annul the marriage entered into by the accused in a bigamy case does not mean that "prejudicial questions" are automatically raised in civil actions to warrant the suspension of the criminal case. In order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the accused, it must be shown that the accused's consent to such marriage must be the one that was obtained by means of duress, force and intimidation to show that his act in the second marriage must be involuntary and cannot be the basis for his conviction for the crime of bigamy. The situation in the second case is markedly different.

Domestic Relations Court a civil action for declaration of nullity of her marriage with Leonilo, contracted in 1978.

complaint for annulment was filed by the wife. Thus:

"a) The filing, while the bigamy case is pending, of a civil action by the woman in the second marriage for its annulment by reason offeree and intimidation upon her by the man, is not a bar or defense to the criminal action.

She alleged that she consented to entering into the marriage, since she had no previous knowledge that Leonilo was already married to Rosalinda.

Donato interposed the defense that his second marriage was void since it was solemnized without a marriage license and that force was employed by Paz to get Leonilo's consent to the marriage.

The civil action does not decide that he entered the marriage against his will and consent, because the complaint therein does not allege that he was the victim of force and intimidation in the second marriage.

Before the second marriage was solemnized, Leonilo and Paz had lived together as husband and wife, without the benefit of wedlock for at least five years, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of the New Civil Code.

It was he who used the force or intimidation and he may not use his own malfeasance to defeat the action based on his criminal act."

At the time petitioner was indicted for bigamy, the fact that two marriage ceremonies have been contracted appeared to be indisputable. And it was the second spouse, not the accused who filed the action for nullity on the ground of force, threats and intimidation, x x x Assuming that the first marriage was null and void on the ground alleged by the accused, that fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity the marriage is so declared can be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. d) Donato v. Luna Leonilo was charged with bigamy in the Court of First Instance.

b.

So also is an annulment of marriage filed by the first wife not prejudicial to bigamy.

Before the criminal case could be tried, Leonilo moved to suspend the proceedings on the ground that the annulment case raises a prejudicial question, which must be determined before the criminal case can proceed.

c.

In Landicho v. Hon. Reloua, the first wife charged the accused with Bigamy for contracting a second marriage without first dissolving their marriage.

The second wife, likewise, filed an annulment of her marriage with the accused on the ground offeree, threats, accused character. and and intimidation because of allegedly its employed by allegedly bigamous

The trial court denied the motion to suspend the proceedings, citing Landicho v. Relova.

The Supreme Court sustained the trial judge.

The issue before the Domestic Relations Court touching upon the nullity of the second marriage is not determinative of Leonilo's guilt or innocence in the crime of bigamy.

Accused filed a third party complaint against the first wife praying that his first marriage be declared null and void on the ground that his consent to the first marriage was obtained by means of threats, force, and intimidation, and moved for the suspension of the

The information was based on the complaint of Paz. Before Leonilo could be arraigned, Paz filed with the

106

Furthermore, it was Paz, Leonilo's second wife, who filed the complaint for annulment of the Second marriage on the ground that her consent was obtained through deceit.

nullity of a previous marriage maybe invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.

second marriage is not per se an argument for the avoidance of criminal liability for bigamy.

Pertinently, Article 349 of the Revised Penal Code So that in a case for concubinage, the accused need criminalizes "any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings." not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void.

Leonilo cannot apply the rule on prejudicial question since a case for annulment of marriage can be considered a prejudicial question to the bigamy case against the accused only if it is proved that Leonilo's consent to such marriage was obtained by means of duress in order to establish that his act in the subsequent marriage was an involuntary one and as such, the same cannot be the basis for conviction.

The Court, however, hastened to add that even if his marriage is void from the beginning the subsequent pronouncement that his marriage is void from the beginning is not a defense, citing Landicho u. Relova, cited in Donate v. Luna," holding that "so long as there is no such declaration (of nullity) the presumption is that the marriage exists.

A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Obviously, Leonilo merely raised the issue of prejudicial question to evade the prosecution of the criminal case. Prior to Leonilo's second marriage, he had been living with Paz as husband and wife for more than five years without the benefit of marriage.

Thus, as soon as the second marriage was celebrated during the subsistence of the valid first marriage, the crime of bigamy had already been consummated.

Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage his consent was assumes the risk of being prosecuted for bigamy. There is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent 2) to criminal prosecution for bigamy marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability A declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State's penal laws are concerned. The State's penal laws protecting the institution of marriage are in recognition of the sacrosanct character of As a second or subsequent marriage contracted during this special contract between spouses, and punish an individual's deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done. for bigamy is concerned.

Thus,

Leonilo's

averments

that

obtained by Paz through force and undue influence in entering a subsequent marriage is belied by the fact that both he and Paz executed an affidavit which stated that they had lived together as husband and wife without benefit of marriage for five years, one month and one day until their marital union was formally ratified by the second marriage and that it was Paz who eventually filed the civil action for nullity.

An Action for declaration of nullity of marriage on ground of psychological incapacity is not a prejudicial question

the subsistence of petitioner's valid marriage to Villareyes, petitioner's second marriage to Ancajas would be null and void ab initio completely regardless of petitioner's psychological capacity or incapacity.

1)

to criminal prosecution for concubinage

Although the judicial declaration of the nullity of a Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the

Under Article 40 of the Family Code: "The absolute

107

vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects.

complaint.

If at all, it should be the latter that should be suspended.

A pending civil case may, however, be considered to be in Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. In proper cases, a pending administrative case may also be considered in the nature of a prejudicial question to a civil There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. case. Thus, an administrative case between parties involving a parcel of land subject matter of an ejectment case is a prejudicial question which would operate as a bar to said Among these legal consequences is incurring criminal liability for bigamy. Thus, it has been held that the question of ownership To hold otherwise would render the State's penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and An action to cancel copyright is not prejudicial to criminal prosecution for infringement of copyright.
There is no prejudicial question where one case is administrative and the other is civil OTHER CASES

A civil action instituted to resolve whether the designations of certain persons as sectoral representatives were in accordance with law constitutes a prejudicial question vis-a-vis a criminal case for violation of the anti-graft law premised on the accused's partiality and evident bad faith in not paying the former's salaries and per diem as sectoral representatives.

the nature of a prejudicial question to an administrative case.

There is no prejudicial question where the outcome of the civil case is not in any way determinative of the guilt or innocence of the respondent in the criminal cases. RULE 112 PRELIMINARY INVESTIGATION

ejectment case.

which is pending in a civil case a prejudicial question justifying suspension of proceedings in the criminal case for violation of the Anti-Squatting Law.

SECTION 1. Preliminary Investigation Defined; When Required

Formerly, the right to a preliminary investigation refers only to offenses cognizable by the Regional Trial Court. In view, however, of the expanded jurisdiction of the Municipal Trial Court under R.A. No. 7691, jurisdiction over certain offenses which before falls under the exclusive jurisdiction of the Regional Trial Court were vested in the Municipal Trial Court and accordingly, under the former rule were no longer entitled to preliminary investigation. The present rule includes among offenses entitled to preliminary investigation those punishable by at least four (4) years, two (2) months and one (1) day, even if the same is cognizable by the Municipal Trial Court.

commitment.

A civil action of replevin is not prejudicial to theft. It has been held that one thing is administrative. Where the issue before the Court of Appeals is the authenQuite another is the criminal liability. ticity of a motion to withdraw which at the same time is the object of a falsification charged pending in CFI, there is a prejudicial question involved in the civil case which justifies the The determination of the administrative liability for suspension of the criminal case. falsification of public documents is in no way conclusive of his lack of criminal liability. Pisalban u. Tesoro, a criminal case for falsification of an affidavit presented in a cadastral case should not be suspended The dismissal of the administrative case does not to await termination of civil case. necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative

Purpose of Preliminary Investigation As provided for in the foregoing section, the preliminary investigation should determine whether there is a sufficient ground to engender a well-grounded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. And if the evidence so warrants, the investigating prosecutor is duty bound to file the corresponding information.
The Purposes of a Preliminary Investigation or a previous Inquiry of Some Kind are

a.

for the investigating prosecutor to determine if a crime has been committed.

108

b.

to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial; and to protect the state from having to conduct useless and expensive trials. Scope of Preliminary Investigation

granted) is a "substantial one." Its denial over his opposition is a "prejudicial error in that it subjects the accused to the loss of life, liberty or property without due process of law." While that right is statutory rather than constitutional in its fundament, since it has in fact established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and, hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. While a preliminary investigation is not an occasion for a full and exhaustive display of the parties evidence, being merely an inquiry to determine whether or not there is sufficient ground to engender a founded belief that a crime has been committed and that the respondent is probably guilty thereof, the right to such preliminary investigation is still an indispensable element of our criminal justice system that may not be treated lightly, let alone ignored. The right of the accused not to be brought to trial except when remanded therefor as a result of a preliminary examination before a committing magistrate, has been held as a substantial one. Its denial over the objections of the accused is prejudicial error in that it subjects the accused to the loss of life, liberty or property without due process of law. If it is not waived may amount to a denial of due process. As stated in a case, the Solicitor General's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists. Since the right belongs to the accused, he alone may waive its denial. If he demands it, the State may not withhold it. The purpose is, however, satisfied if the accused is given all the

opportunity to submit countervailing evidence. Probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. Thus, the lack of authentication of the document presented during the preliminary investigation does not impair the validity of the investigation. The only purpose of a preliminary investigation is "to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof." The Court have maintained a consistent policy of noninterference in the determination by the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of its discretion. While it may be true that the documents were unauthenticated, this is a matter of defense best passed upon after a full-blown trial. As ruled in Webb v. De Lean, "the validity and the merits of a party's defense or accusation as well as the admissibility of testimonies and evidences are better ventilated during the trial stage than in the preliminary investigation level." Effect of Absence of Preliminary Investigation As the absence of a preliminary investigation is not a ground to quash the complaint or information, the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus, the absence of preliminary investigation does not affect the court's jurisdiction over the case, but merely to the regularity of the proceedings. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigation and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information, should conduct such investigation, or order the fiscal to conduct it. Moreover, the absence of a preliminary investigation will not justify petitioner's release because such defect did not nullify the information and the warrant of arrest against him.

c.

d.

Preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the person against whom it is taken in jeopardy. Nature of Right to Preliminary Investigation Neither the 1935 nor the 1973 (or 1987) Constitution requires the holding of a preliminary investigation. It is a settled doctrine that the right thereto is of statutory character and may be invoked only when specifically created by statute. It is not a fundamental right and is not among the rights guaranteed to him in the Bill of Rights. It may be waived expressly or by silence. As stated in Marcos u. Cruz, "the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and it exists and the right thereto can be invoked when so established and granted by law. It is so specifically granted by procedural law. If not waived the absence thereof may amount to a denial of due process. Thus, the right of accused (to a preliminary investigation when

109

COMPARE:

In Rolito Go v. Court of Appeals, despite the fact that trial on the merits had began and the prosecution had already presented four witnesses, the trial was ordered suspended and the accused allowed to be released on bail pending the preliminary investigation. The right to bail was emphasized in Tolentino v. Camano, Jr. Right May be Waived The right to a preliminary investigation may be waived by failure to invoke the right prior to or at least at the time of their plea. The rule was restated in People v. Monteverde, where the Supreme Court stated: "A PRELIMINARY INVESTIGATION IS MANDATORY AND A CERTIFICATION THAT SUCH INVESTIGATION WAS HELD IS REQUIRED, STILL THIS RULE DOES NOT APPLY IF THE ISSUE IS RAISED ONLY AFTER CONVICTION.
After a plea of not guilty to the information, an accused is deemed to have foregone the right of preliminary investigation and to have aban doned the right to question any irregularity that surrounds it."

No Waiver When Properly Invoked A waiver, whether express or implied, must be made in clear and unequivocal manner. Mere failure of petitioner and his counsel to appear before the City Prosecutor cannot be construed as a waiver of his right to preliminary investigation, where petitioner has been vigorously invoking his right to a regular preliminary investigation since the start of the proceedings before the City Prosecutor. The right is not waived even if the accused had filed an application for bail and arraigned over his objections and trial on the merits already began with four witnesses having testified where accused had from the beginning demanded that a preliminary investigation be conducted and forthwith brought the case on certiorari to the Supreme Court. Presumption of Regularity The accused who alleges lack of preliminary investigation must prove such allegation convincingly. When it does not appear from the record that a preliminary investigation was not granted, it must be presumed that the proceedings in the trial court were in accordance with law. In the absence of evidence to the contrary, the Court will presume that the fiscal or officer who conducted the requisite investigation did so in accordance with law. Effect of Lack of Certification Lack of certification by the fiscal that a preliminary investigation had been conducted does not vitiate the information, as a preliminary investigation is not an essential part of the information. The absence of a certification is waived by the failure to allege it before the plea.
Cases on Right to a New Preliminary Investigation Where Allegation on Complaint Is Amended

Republic Act No. 5180, approved September 8, 1967, as invoked by them anew from respondent court, viz., the submittal of the testimonies in affidavit form of the complainant and his witnesses duly sworn to before the investigating fiscal, and the right of accused, through counsel, to cross-examine them and to adduce evidence in their defense. In line with the settled doctrine as restated in People v. Abejuela, respondent court shall hold in abeyance all proceedings in the case before it until after the outcome of such new preliminary investigation.

In People v. Lambino, Lambino, before commencement of trial, demanded his right to preliminary investigation. His motion for preliminary investigation was denied by the trial court which, in due course of time, convicted Lambino. On appeal, the Supreme Couri held that the trial court did not err in denying Lambino's motion for preliminary investigation because said motion was filed after he had entered a plea of not guilty and because he took no steps to bring the matter to a higher court to stop the trial of the case. The right to a preliminary investigation shall be deemed waived for failure to invoke it during arraignment in People u. Valencia People v. Hubilo, People v. De Asis, or by failing to go to Appellate Court on certiorari to question denial. The right to a preliminary investigation may not be raised for the first time on appeal. Consenting to be arraigned and entering a plea of not guilty without invoking the right to preliminary investigation is a waiver. It should be invoked prior to or at least, at the time of the plea. It is also deemed waived by going to trial without previously claiming that they did not have the benefit of preliminary investigation. It may be waived expressly or by silence.

The need to conduct a new preliminary investigation when the defendant demands it and the allegations of the complaint have been amended, has been more than once affirmed by the Supreme Court:
"(a) xxx, the Court finds that since the information for alleged violation of the Anti-Graft Law was filed without any previous notice to petitioners and due preliminary investigation thereof, and despite the dismissal of the original charge for falsification as being without any factual or legal basis,' petitioners are entitled to a new preliminary investigation for the graft charge, with all the rights to which they are entitled under section 1 of

110

OTHER CASES ON WHETHER OR NOT PRELIMINARY INVESTIGATION IS NEEDED a.

ANOTHER

c.

If after preliminary investigation, a case is filed in the Court of First Instance which was dismissed, the Fiscal cannot file another information charging a different offense based on the same preliminary investigation. He must conduct another preliminary investigation. The principle does not apply where the original information was not dismissed.

Where the amendment to an information is not substantial, there is no need of another preliminary investigation. In Almeda v. Villaluz, the amendment as to habitual delinquency was not considered substantial.

d.

A new preliminary investigation is not called for where the court orders the filing of correct information involving a cognate offense, such as unfair competition to infringement of trademarks." Where only a formal amendment was involved such as frustrated murder to consummated murder where death of the victim supervened a preliminary investigation is unnecessary and cannot be demanded by the accused. If the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is unnecessary. In Gaspar v. Sandiganbayan, the Supreme Court pointed out that there is no rule or law requiring the Tanodbayan to conduct another preliminary investigation of a case under review by it. It is a fundamental principle that when on its face the information is null and void for lack of authority to file the same, it cannot be cured nor resurrected by an amendment. Another preliminary investigation must be undertaken and thereafter, based on the evidence adduced, a new information should be filed. Exception to Right of Preliminary Investigation

A motion for reinvestigation should, after the court had acquired jurisdiction over the case, be addressed to the trial judge and to him alone. Neither the Secretary of Justice, the State Prosecutor, nor the Fiscal may interfere with the Judge's disposition of the case, much less impose upon the court their opinion regarding the guilt or innocence of the accused, for the court is the sole judge of that. The private complainant cannot move for reinvestigation. But he can appeal to the DOJ or the Ombudsman as the case maybe. Caution by Court in Granting Reinvestigation Courts are, however, called upon to exercise great restraint in granting any reinvestigation with the consequent delay involved, since the weighing and evaluation of such evidence in defense of the accused against the State's evidence is best left to its judgment and its verdict rather than to that of the prosecution. To ferret out the truth, trial is to be preferred to a reinvestigation. It cannot be denied that in the search for truth, a trial has distinct merits over a reinvestigation. A preliminary investigation or reinvestigation, unlike a trial, is summary in nature. The direct examination of witnesses is substituted by the complainant's sworn statement and that of his witnesses, and by the counter-affidavit of the respondent and his witnesses. While the respondent may be present at the investigation, he has no right to cross-examine the witnesses against him. To ferret out the truth, therefore, a trial is to be preferred to a reinvestigation. Rather than delay the trial of private respondents waiting for the conduct and outcome of a reinvestigation, it is best that respondent Judge set the case for immediate trial As a general rule, the practice of holding in abeyance a criminal case already filed for reinvestigation of a case filed by the fiscal upon the accused's motion to present evidence or newly discovered evidence should be discouraged because it generates the impression that the accused would be able to fix his case or that it would be easier for him to manipulate and maneuver its dismissal in the fiscal's office.

b.

In Bandiala u. Court of First Instance of Misamis Occidental, where the preliminary investigation was for robbery in band (with one of the two accused waiving the second stage), the Court held that the provincial fiscal could not file against the accused an information for the graver crime of robbery with kidnapping, without giving the accused "ample opportunity at full-blown preliminary investigation to demonstrate that what the fiscal regards as 'kidnapping* in the legal sense was merely an incident of, and is therefore absorbed in the crime of robbery." The Court noted once again that "(A) preliminary investigation, it must be borne in mind, is a practical device created by statute and by mandate of our Rules of Court, principally for the purpose of preventing hasty, malicious and ill-advised prosecution," and pointedly emphasized that "(T)he Rules of Court on the matter of preliminary investigation, construed in their intregrated entirety, direct that, in the circumstances here obtaining, the Fiscal, if he believes that he should raise the category of the offense, must conduct a preliminary investigation anew as to the entire charge. Fundamental principles of fair play dictate this course of action. The Fiscal is not allowed by the Rules of Court to wait in ambush; the role of a Fiscal is not mainly to prosecute, but essentially to do justice to every man and to assist the courts in dispensing that justice." A new preliminary investigation is not, however, necessary after the amendment of the information, where there has been no change in the nature of the crime charged which is rebellion, and moreover, petitioner, who was already in custody when the amended information was filed, should have asked, but did not, for a re-investigation of said case within the period of five days from the time he learned of the amended information.

e.

f.

g.

h.

Exception There is no right of preliminary investigation under Section 7, Rule 112 when a person is lawfully arrested unless there is waiver of the provisions of Article 125 of the Revised Penal Code. There is no waiver of the right to a preliminary investigation despite trial and presentation of four (4) witnesses over the objection of the accused. There is a right to preliminary investigation where warrantless arrest is not lawful.
Motion for Reinvestigation Addressed to Trial Judge

111

SEC. 2. Officers Authorized to Conduct Preliminary Investigations Under the B.P. Big. 129
SEC. 37. Preliminary Investigation. Judges of Metropolitan Trial Courts, except those in the National Capital Region, of Municipal Trial Courts, and Municipal Circuit Trial Courts shall have authority to conduct preliminary investigation of crimes alleged to have been committed within their respective territorial jurisdictions which are cognizable by the Regional Trial Courts.

The COMELEC may, however, deputize other prosecuting arms of government to conduct the investigation and prosecute the offense in Court b. The 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws This means that the COMELEC is empowered to conduct preliminary investigation in cases involving, election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC , whether it involves a private individual or public officer or employee, and in the later instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the offender that matters. As long as the offense is an election offense, jurisdiction over the same rests exclusively with the COMELEC in view of its all-embracing power over the conduct of elections. Hence, the Provincial Prosecutor, as such assumes no role ii the prosecution of election offenses. If the Fiscal or Prosecutor file; an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office.
Preliminary Investigation of Sandiganbayan Case! a. Office of the Ombudsman

Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by R.A. No. 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of R.A. No. 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the legislature to the Ombudsman are very kinds of malfeasance, misfeasance and by public officers and employees during powers granted by the broad and encompass all non-feasance committed their tenure of office.

The preliminary investigation shall be conducted in accordance with the procedure prescribed in Section 1, paragraphs (a), (b), (c), and (d) of Presidential Decree No. 911; Provided, however. That he shall forward the records of the case if after the preliminary investigation the Judge finds a prima facie he shall forward the records of the case to the Provincial/City Fiscal for the filing of the corresponding information with the proper court. No warrant of arrest shall be issued by the Judge in connection with any criminal complaint filed with him for preliminary investigation, unless after an examination in writing and under oath or affirmation of the complaint and his witnesses, he finds that a probable cause exists. Any warrant of arrest issued in accordance herewith may be served anywhere in the Philippines. The Supreme Court has expanded the offenses offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine even if it is cognizable by municipal trial courts. The provisions ofP.D. No. 911 had been incorporated in Section 3. A.M. No. 05-8-26-SC (Effective October 3, 2005) removed the authority of first level judges to conduct preliminary investigations. Upon effectivity of the amendments, first level courts shall no longer accept new cases for preliminary investigation, which fall under the exclusive jurisdiction of other levels.
Other Persons Authorized to Conduct Preliminary Investigation

The Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular court as well. The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of R.A. No. 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when sue act or omission appears to be illegal, unjust, improper or inefficient The power to investigate and to prosecute granted by law to the

Power to Investigate, to file and to prosecute, distinguished

A distinction should be made between the power to investigate, to file and to prosecute ombudsman cases. A prosecutor has a shared authority to investigate and prosecute ombudsman cases not cognizable by the Sandiganbayan.

a.

The COMELEC is vested with power and authority to conduct preliminary investigations of all election offenses punishable under the Omnibus Election Code and to prosecute offenses in court.

112

With respect to cases cognizable by the Sandiganbayan, the ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayan cases Section 5, Rule II of Administrative No. 8 of the Office of the Ombudsman provides that: "Cases falling under the jurisdiction of the Office of the Ombudsman which are. cognizable by municipal trial courts, including those subject to the Rule on Summary Procedure may only be filed in court by Information approved by the Ombudsman, or the proper Deputy Ombudsman in all other cases." Under Republic Act No. 6770, the power to investigate and prosecute cases which are cognizable by the Sandiganbayan is now lodged with the Ombudsman. This includes Ombudsman cases which are cognizable by regular courts.
The Office of the Special Prosecutor (The Tanodbayan)

jurisdiction in accordance with section ll(4c) of R.A. No. 6770, viz., "to perform such other duties assigned to it by the Ombudsman." c. While the Ombudsman's investigatory and prose-cutory power is plenary and unqualified, the authority of the Special Prosecutor is limited. While the Ombudsdman may delegate his investigatory function, including the power to conduct administrative investigation, to the Special Prosecutor, the latter has no power to preventively suspend which is only granted to the Ombudsman and the Deputy Ombudsman. If the Ombudsman delegates his authority to conduct administrative investigation to the Special Prosecutor and the latter finds that preventive suspension is warranted, the Special Prosecutor may recommend to the ombudsman to place the said public officer or employee under preventive suspension." c-1 Moreover, unless authorizing by the Ombudsman the special prosecutor is not authorized to file an information. All that was delegated to the special prosecutor by Office Order No. 40-05 was the discretional authority to review and modify the deputy ombudsman-authorized information, but even this is subject to the condition that such modification must be "without departing from, or varying in any way, the contents of the basic resolution, order or decision." The doctrine was made operative to cases filed upon the finality of the decision. d. Deloso v. Domingo upheld the primary and concurrent jurisdiction of Ombudsman to investigate cases cognizable by the Sandiganbayan under section 15(i) of R.A. No. 6770 to all kinds of malfeasance by any officer or employee during his tenure of office. Preliminary Investigation By Ombudsman Section 18 of R.A. No. 6770 allows the Office of the Ombudsman to promulgate its rules of procedure for the effective exercise or performance of its powers, functions, and duties. The rules of procedure shall include a provision whereby the Rules of Court are made suppletory. Accordingly, the Office of the Ombudsman promulgated Administrative Order No. 07 known as the RULES OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN (Appendix K)

and Administrative Order No. 08 CLARIFYING AND MODIFYING CERTAIN RULES OF PROCEDURE OF THE OMBUDSMAN The order clarified that: "The preliminary investigation of an Ombudsman case does not have to be conducted strictly in accordance with Section 3, Rule 112 of the Rules of Court. Said rule shall be applied as modified by Rule II of Administrative Order No. 07 of the Office of the Ombudsman. Particular attention is directed to the provisions thereof of which are not exactly in conformity with Section 3, Rule 112 of the Rules of Court, such as, those on the: (1) issuance of an order in lieu of subpoena for the filing of counter-affidavits; (2) prohibition against a motion to dismiss, motion for a bill of particulars, and second motion for reconsideration or reinvestigation; (3) manner of conducting clarificatory questioning; and the (4) form of affidavits and counter-affidavits. It is to be understood, however, that the preliminary investigation Ombudsman case in accordance with Rule 112 of the Rules of Court is perfectly valid. The changes in such procedure effected by Administrative Order No. 07 are designed merely to expedite the process of preliminary investigation and to conform with the provisions of Republic Act No. 6770. The officer who review a case on appeal should not be the same person whose decision is under review.
Primary Jurisdiction Refers To Cases in Relation To Public Office of Accused

As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor which continued to function and exercise its powers provided by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution.
Distinction between Office of the Ombudsman and Office of the Special Prosecutor

a.

The jurisdiction of the office of the Ombudsman should not be equated with the limited authority of the Special prosecutor under Section 11 of R.A. No. 6770 which was established after the creation of the Office of the Special Prosecutor. The office of the special prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan.

The primary jurisdiction, refers to cases in relation to public office of accused [and punishable for more than six years or a fine of P6,000.00.] The Ombudsman's primary power to investigate is dependent on the cases cognizable by the Sandiganbayan. Thus, the public prosecutor may conduct preliminary investigation of Mayor's criminal acts not in relation to his public office. For Ombudsman's authority to overrule investigatory prosecutor, see Cruz v. People, and Sec. 4, Rule 112.

b.

The Office of the Special Prosecutor (the Tanod Bayan), was made an organic component of the Office of the Ombudsman, who under the supervision and control and upon authority of the Ombudsman may conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. Or to prosecute cases outside the Sandi-ganbayan's

113

Any officer authorized to conduct a preliminary investigation who is investigating an offense or felony committed by public officer must determine if the crime was committed by the respondent in relation to his office. If it was, the investigating officer shall forthwith inform the office of the Ombudsman who may either: (a) take over the investigation of the case pursuant to Section 15(1) of R.A. No. 6770 or (b) deputize a prosecutor to act as special investigator or prosecutor to assist in the investigation and prosecution of the case pursuant to section 31 thereof. In light of the broad powers conferred by law on the Ombudsman and the Special Prosecutor, it is completely inconsequential that the complaint by which a criminal case was instituted charging a crime cognizable by the Sandiganbayan might have been originally filed with the Iloilo Prosecution Office, or the preliminary investigation therein conducted.
Power Includes all Criminal Cases Involving Public Officers and Employees

It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman... the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. It states: "Sec. 11. Structural Organization. xxx xxx xxx xxx

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of R.A. No. 6770 [whose] power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government....
The Presidential Commission on Good Government (PCGG)

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman, have the following powers: (a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;

Prosecution for Violations of RA. No. 3019 (Anti-Graft Law) and RA. No. 1379 (Unexplained Wealth) Under Executive Order No. 14, signed by President Aquino on May 7,1986. The Presidential Commission on Good Government with the assistance of the Office of the Solicitor General and other government agencies, were empowered to file and prosecute all cases investigated by it under Executive Order No. 1, dated February 28, 1986 and Executive Order No. 2, dated March 12, 1986, as may be warranted by its findings. The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof. Upon the other hand, civil suits for restitution, reparation of damages, or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No. 2, dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by preponderance of evidence. From the foregoing provisions of law, particularly Sections 2(b) and 3(a) of Executive Order No. 1 and Sections 1 and 2 of Executive Order No. 14, the PCGG has the power to investigate and prosecute such ill-gotten wealth cases of the former President, his relatives and associates, and graft and corrupt practices cases that may be assigned by the President to the PCGG to be filed with the Sandiganbayan. The authority to investigate extended to the PCGG includes the authority to conduct a preliminary investigation. The ruling was further clarified in Cruz, Jr. v. Sandiganbayan:

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by R.A. No. 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of R.A. No. 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts.

In its Resolution On March 20, 2001 The Court in George Uy v Sandiganbayan, which was reiterated in Office of the Ombudsman v. Breua, categorically stated that: "the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well." Elaborating on its n ruling nullifying its earlier decision, writes: THE AUTHORITY OF THE OMBUDSMAN TO INVESTIGATE AND PROSECUTE OFFENSES COMMITTED BY PUBLIC OFFICERS AND EMPLOYEES IS FOUNDED IN SECTION 15 AND SECTION 11 OF R.A. NO. 6770. SECTION 15 VESTS THE OMBUDSMAN WITH THE POWER TO INVESTIGATE AND PROSECUTE ANY ACT OR OMISSION OF ANY PUBLIC OFFICER OR EMPLOYEE, OFFICE OR AGENCY, WHEN SUCH ACT OR OMISSION APPEARS TO BE ILLEGAL, UNJUST, IMPROPER OR INEFFICIENT, THUS:
"Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.

114

THE COURT THEN HELD THAT SECTIONS 2(A) AND 3, OF EXECUTIVE ORDER NO. 1, IN RELATION WITH SECTIONS 1, 2 AND 3 OF EXECUTIVE ORDER NO. 14, SHOWS THAT WHAT THE AUTHORITY OF THE RESPONDENT PCGG TO INVESTIGATE AND PROSECUTE COVERS ARE:
a. The investigation and prosecution of the civil action for the recovery of ill-gotten wealth under Republic Act No. 1379, accumulated by former President Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through his nominees, by taking undue advantage of their public office and/or using their powers, authority and influence, connections or relationship; and b. The investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No. 1. However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the foregoing categories, require a previous authority of the President for the PCGG to investigate and prosecute the same in accordance with Section 2(b) of Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman and other duly authorized investigating agencies as the provincial and city prosecutors, their assistants, the Chief State Prosecutor and his assistants, and the state prosecutors. c. The PCGG would not have jurisdiction over an ordinary case falling under Rep. Act Nos. 3019 and 1379. The PCGG may, however, investigate and cause the prosecution of active and retired members of the AFP for violations ofR.A. Nos. 3019 and 1379 only in relation to E.O. Nos. 1, 2, 14, and 14-a, i.e., insofar as they involve the recovery of ill-gotten wealth of former President Marcos and his family and his cronies. d. The appropriate prosecutory agencies that may investigate and file the petition under R.A. No. 1379 and file the petition for forfeiture of unexplained wealth against a private citizen are the provincial prosecutor and the Solicitor General For violation of R.A. No. 3019 and 1379 of those who are still in office the agency granted the power to investigate and prosecute them is the office of the Ombudsman. Under Presidential Decree No 1606, as amended and Batas Pambansa Big. 195, violation of Rep. Act Nos. 3019 and 1379 shall be tried by the Sandiganbayan. It is a civil procreedings in rem but criminal in nature

unexplained wealth amassed after 25 February 1986 and the prosecution of the parties involved. After reviewing the legislative history of the Sandiganbayan and the Office of the Ombudsman, the Court declared that "UNDER R.A. NO. 8249, THE SANDIGANBAYAN IS VESTED WITH EXCLUSIVE ORIGINAL JURISDICTION IN ALL CASES INVOLVING VIOLATIONS OF R.A. NO. 3019, R.A. NO. 1379, AND CHAPTER II, SEC. 2, TITLE VII, BOOK II OF THE REVISED PENAL CODE, WHERE ONE OR MORE OF THE ACCUSED ARE OFFICIALS OCCUPYING THE FOLLOWING POSITIONS WHETHER IN A PERMANENT, ACTING OR INTERIM CAPACITY, AT THE TIME OF THE COMMISSION OF THE OFFENSE:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 989 (R.A. No. 6758), spe cifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; (b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; Officials of the diplomatic service occupying the position of consul and higher; Philippine army and air force colonels, naval captains, and all officers of higher rank; Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions

the Court will not interfere nor pass upon the findings of the Ombudsman to avoid its being hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, and that it will not review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. The court, however, stressed that while it is the Ombudsman who has full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the informations may not be dismissed without the approval of said court.
No Injunction Against Ombudsman to Delay Investigation

Under Section 14 of Republic Act No. 6770: No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the office of the Ombudsman. Moreover, no court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman except the Supreme Court, on pure question of law. Remedy The remedy of aggrieved parties from resolutions of the office of the Ombudsman finding probable cause in criminal cases or nonadministrative cases, when tainted with grave abuse of discretion, is to file an original action for certiorari with the Supreme Court and not with the Court of Appeals. Jurisdiction over money-laundering cases The Anti money-laundering law provides for two kinds of cases which are independent of each other. The criminal action for anti-money-laundering offense and the civil forfeiture proceedings which may be filed separately and proceed independently of the criminal prosecution. a. The Criminal Action Republic Act No. 9160 as amended (The Anti-Money Laundering Act of 2001) Defines

(c) (d) (e)

(f) (g)

e.

The PCGG may, however, also investigate and prosecute graft and corrupt practices cases that may be assigned by the President to the PCGG to be filed with the Sandiganbayan. Non-interference with Ombudsman The Court recognizing the investigatory and prosecutory powers granted by the Constitution to the office of the Ombudsman and for reasons of practicality, declared in an en bane resolution dated August 30, 1993, issued in Ocampo u. Ombudsman, that

The law underwent several changes. Under R.A. No. 6770 the Ombudsman was granted the authority to investigate and initiate the proper action for the recovery of ill-gotten and/or

115

Money Laundering Offense. Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: 1) Any person knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so.

The Rule shall govern all proceedings for civil forfeiture, asset preservation and freezing of monetary instrument, property, or proceeds representing, involving, or relating to an unlawful activity or a money laundering offense under Republic Act No. 9160, as amended. The Revised Rules of Court shall apply suppletorily when not inconsistent with the provisions of this special Rule. II of the Rule provided only for Civil Forfeiture in the Regional Trial Court. Thus
TITLE
SEC.

other remedial proceedings through the Office of the Solicitor General with the Regional Trial Court. There is no similar authority to file such cases with the Sandiganbayan. It is only in criminal cases that the AMLC is authorized to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses. But unlike Civil Forfeiture under R.A. No. 1379 which specifically authorized its filing by the Ombudsman or thru the Office of Special Prosecutor in the Sandiganbayan. No similar authority have been granted the Ombudsman with respect to civil forfeiture under the Anti-money Laundering Law. SEC. 3. Procedure
COMMENT: 1. Amendment in paragraph (a) requires that the complaint should be accompanied by affidavits of the complainant and his witnesses as well as other supporting papers relied upon by him (the complainant) to establish probable cause. A significant amendment is the 2nd paragraph of par. (b) regarding respondent's right to examine all other evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense. If such records are voluminous the complainant may be required to specify and identify those which he intends to present against the respondent to support the charge against the latter and these shall be made available for examination, copying or photographing by respondent at his expense. The amendment was brought about because of the case of Commissioner of Internal Revenue v. Court ofAppeals, where among the issues raised is the failure of the complainant to produce the documents in support of the complaint. For obvious reasons, objects as evidence need not be furnished either party but shall be made accessible for examination, copying or photocopying by the complainant or respondent at the expense of the requesting party. 2. The amendment in paragraph (c) prohibits the filing of a motion to dismiss. This is a significant amendment. It abrogates the ruling in Commissioner of Internal Revenue v. Court of Appeals, where the court castigated the investigator for proceeding without first acting on respondents' motion to dismiss.

2)

2. Party to institute proceedings. The Republic of the Philippines, through the Anti-Money Laundering Council, represented by the Office of the Solicitor General, may institute actions for civil forfeiture and all other remedial proceedings in favor of the State of any monetary instrument, property, or proceeds representing, involving, or relating to an unlawful activity or a money laundering offense.
SEC.

3)

3. Venue of cases cognizable by the regional trial court. A petition for civil forfeiture shall be filed in any regional trial court of the judicial region where the monetary instrument, property, or proceeds representing, involving, or relating to an unlawful activity or to a money laundering offense are located; Provided, however. That where all or any portion of the monetary instrument, property, or proceeds is located outside the Philippines, the petition may be filed in the regional trial court in Manila or of the judicial region where any portion of the monetary instrument, property, or proceeds is located, at the option of the petitioner.

b.

Jurisdiction of Money Laundering Cases The regional trial courts shall have jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan. The foregoing section apparently refers to the criminal offense of anti-money laundering as defined in section 4 of the law.

The Rule does not provide for civil forfeiture before the Sandiganbayan. The law created an Anti-Money Laundering Council (AMLC). tasked with implementing the law, was empowered: (3) to institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General; (4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; (5) to initiate investigations of covered transactions, money laundering activities and other violations of this Act. d. Civil and Criminal Forfeiture Distinguished It is to be noted that under the Anti-Money Laundering Act, so far as Civil Forfeiture is concerned it is the AMLC that is authorized to institute civil forfeiture proceedings and all

c.

The Civil Forfeiture Proceedings The law provided that in petitions for civil forfeiture the Revised Rules of Court shall apply. In consequence thereof, the Supreme Court issued the RULE OF PROCEDURE IN CASES OF CIVIL FORFEITURE, ASSET PRESERVATION, AND FREEZING OF MONETARY INSTRUMENT, PROPERTY, OR PROCEEDS REPRESENTING, INVOLVING, OR RELATING TO AN UNLAWFUL ACTIVITY OR MONEY LAUNDERING OFFENSE UNDER REPUBLIC ACT NO. 9160, AS AMENDED The Rule expressly provided that

116

Since a motion to dismiss is now a prohibited pleading, the investigator may properly ignore such a motion. The amendments require the respondent to submit counter-affidavits and other supporting documents relied upon by him for his defense. 3. The amendment in sub-par, (d) requires the prosecutor to resolve the complaint based on the evidence presented by the complainant if the respondent cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavit[s] within the ten (10-day period. In sub-par, (e), the clarificatory hearing shall only be limited to facts and issues which the investigating officer believes need to be clarified. The clarificatory hearing shall be held within ten (10) days from submission of the counter-affidavit and other documents, or from expiration of the period for their submission. It shall be terminated within five (5) days. 5. The investigation shall then be deemed concluded and the investigating officer shall, within ten (10) days, determine whether or not there is sufficient ground to hold the respondent for trial upon the evidence adduced.

innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and to protect the state from useless and expensive trials. The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process." However, in order to satisfy the due process clause, it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantee of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the prosecutor (judge) conducting the examination, such a finding should not disregard the facts before the prosecutor (judge) nor run counter to the clear dictates of reasons. Such a preliminary investigation must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of The Revised Rules on Criminal Procedure. This procedure is to be observed in order to assure that a person undergoing such preliminary investigation will be afforded due process. c. The Proceedings are Considered as Judicial in Nature Thus, the conduct of a preliminary investigation, which is defined as "an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial," is, like court proceedings, subject to the d.

requirements process.

of both

substantive

and procedural

due

This is because a preliminary investigation is considered a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasijudicial officer, but only to the extent that, like quasi-judicial bodies, the prosecutor is an officer of the executive department exercising powers akin to those of a court. DOJ is not a quasi-judicial agency; Preliminary Investigation is not a quasi-judicial proceeding reviewable under Rule 43 The Court, however, clarified that: A preliminary investigation is not a quasi-judicial proceeding, and the DOJ is not a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor regarding the presence of probable cause. The Court pointedto its ruling in Bautista u. Court of Appeals, holding that a preliminary investigation is not a quasi-judicial proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.

4.

Preliminary Investigation Concept a. A preliminary investigation is merely inquisitorial, but it is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions acts as a quasi-judicial officer. The conduct of a preliminary investigation is the initial step towards the criminal prosecution of a person. After such preliminary investigation, if the investigating officer finds that there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial, then the corresponding complaint or information shall be filed in the competent court. It is the filing of said complaint or information that initiates the criminal prosecution of the accused when he is brought to court for trial. b. Importance of Preliminary Investigation The Supreme Court stressed the importance of a preliminary investigation or how the same should be conducted in order for it to conform with the essential requisites of due process and reiterated its ruling in the cases of Salonga v. Pano, et al., and Geronimo v. Ramos, that: "The purpose of a preliminary investigation is to secure the

Though some cases describe the public prosecutor's power to conduct a preliminary investigation as quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is an officer of the executive department exercising powers akin to those of a court, and the similarity ends at this point. A quasi-judicial body is as an organ of government other than a court and other than a legislature which affects the rights of private parties through either adjudication or rulemaking. A quasi-judicial agency performs adjudicatory functions such

117

that its awards, determine the rights of parties, and their decisions have the same effect as judgments of a court. Such is not the case when a public prosecutor conducts a preliminary investigation to determine probable cause to file an information against a person charged with a criminal offense, or when the Secretary of Justice is reviewing the former's order or resolutions. Since the DOJ is not a quasi-judicial body and it is not one of those agencies whose decisions, orders or resolutions are appealable to the Court of Appeals under Rule 43, the resolution of the Secretary of Justice finding probable cause to indict petitioners for estafa is, not appealable to the Court of Appeals via a petition for review under Rule 43. However, the Resolution of the DOJ Secretary is appelable administratively to the Office of the President where the offense charged is punishable by Reclusion perpetua." The availability of the remedy of a petition for review under Rule 43 of the Rules of Court to appeal the Decision and Resolution of the Office of the President effectively foreclose the right to resort to a special civil action for certiorari.
RESPONDENT CANNOT BE COMPELLED TO SUBMIT COUNTER-AFFIDAVIT BEFORE COMPLAINANT HAS SUBMITTED ITS AFFIDAVITS; CRIMINAL INVESTIGATION AND PRELIMINARY INVESTIGATION DISTINGUISHED

In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be allowed to conduct the preliminary investigation of his own complaint. It is to say the least arbitrary and unjust. One cannot be a prosecutor and judge at the same time. Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor. Since a preliminary investigation is designed to screen cases for trial, only evidence may be considered. While reports and even raw information may justify the initiation of an investigation, the stage of preliminary investigation can be held only after sufficient evidence has been gathered and evaluated warranting the eventual prosecution of the case in court.
Meaning of Probable Cause for Purpose of Filing Information

The term does not mean "actual or positive cause"; nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Determination of Probable Cause As summed up in Webb u. de Leon, a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify x x x a conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Thus, probable cause should be determined in a summary but scrupulous manner to prevent material damage to a potential accused's constitutional right to liberty and the guarantees of freedom and fair play. The preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence. It is for the presentation of such evidence as may engender a well grounded belief that an offense has been committed and that the accused is probably guilty thereof. It is a means of discovering the persons who may be reasonably charged with a crime. The validity and merits of a party's defense or accusation, as well as admissibility of the testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level.
No Need to Set Investigation for Clarificatory Questioning

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded does not mean actual and positive cause nor does it import actual certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes an offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. As a protection against false prosecution and arrest, the knowledge of facts, actual or apparent must, however, be strong enough to justify a reasonable man in the belief that he has lawful grounds for arresting the accused It is such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe an honest or strong suspicion that a thing is so.

The respondent undergoing a preliminary investigation may not be compelled to submit a counter-affidavit before the submission of complainant's affidavit. The general power of investigation of the PCGG as consisting of two stages; the first stage, called the criminal investigation, is a fact-finding inquiry conducted by law enforcement agents, whereby they gather evidence and interview witnesses and afterwards assess the evidence so that, if they find sufficient basis, they can file a complaint for the purpose of preliminary investigation. The second stage, called the preliminary investigation stage, is conducted for the purpose of ascertaining if there is sufficient evidence to bring a person to trial. Having found petitioner prima facie guilty of violation of Rep. Act No. 3019 for which reason it issued a freeze order against him and filed a civil complaint for recovery of alleged ill-gotten wealth, the PCGG could not thereafter act as an impartial judge in conducting a preliminary investigation of criminal complaints based on the same facts found by it to constitute prima facie evidence against petitioner.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, the court held that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions.

118

The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. Probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. It is not the proper forum for an exhaustive production of evidence.
Stages of Preliminary Investigation: Former and Present Rule

propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function x x x (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised." The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations.
Judges' Power (Duty) to Conduct Preliminary Examination

Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counteraffidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine. The parties may propound questions thru the investigating officer. Absence of Counsel Where the accused is not represented by a counsel during the preliminary investigation, such irregularity which amounts to an absence of preliminary investigation should be raised before the trial court. When so raised, the trial court is called upon not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. This is the proper procedure since the absence of such investigation did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the trial court. The right to a preliminary investigation, being waivable does not argue against the validity of the proceedings. The most that should be done is to remand the case in order that such investigation could be conducted.
No Right to Counsel During Preliminary Investigation

The Court, pointed out in Sangguniang Bayan ofBatac v. Judge Efren Albano, that the two stages under the old rule, namely: (1) the preliminary examination stage, during which the investigating judge determines whether there is reasonable ground to believe that an offense has been committed, and the accused is guilty thereof, so that a warrant of arrest may be issued and the accused hold for trial; and (2) the preliminary investigation proper, where the complaint or information is read to the accused after his arrest and he is informed of the substance of the evidence adduced against him, after he is allowed to present his evidence in his favor if he so desires, was changed by Presidential Decree No. 911, upon which the present rule is based which removed the preliminary examination stage and integrated it into the preliminary investigation proper. Now, the proceedings consist only of one stage.
JUDGES OF REGIONAL TRIAL COURTS (FORMERLY COURTS OF FIRST INSTANCE) NO LONGER HAVE AUTHORITY TO CONDUCT PRELIMINARY INVESTIGATIONS

This is not to say, however, that somewhere along the line, RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present 1987 Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear. While an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority when such a pleading is filed with his Court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature. No Right of Cross-Examination It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present.

It has been held that there is nothing in the rules which renders a preliminary investigation invalid because defendant was without counsel. See, however, People v. Abano, where the confession obtained during preliminary investigation without the assistance of counsel was held as inadmissible. The Right of Accused to Discovery Procedures In Webb u. de Leon, the court held that an accused is entitled during preliminary investigation to discovery procedure. While recognizing the absence of any provision in the Rules on Criminal Procedure for discovery proceedings during preliminary

That authority, at one time, reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964 was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, which deleted all provisions granting that power to said judges. The Supreme Court had occasion to point this out in Salta v. Court of Appeals, and to stress as well certain other basic

119

investigation, the Court held that such failure does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against significant erosion of the constitutional right to due process of a potential accused; x x x and upheld the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the sworn statement and the FBI report considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. Under the present rule, the respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Preliminary Designation of Offense Not Conclusive

fairness which taints the preliminary investigation. In a petition for forfeiture under R.A. No. 1379 respondent must be furnished a copy of the resolution directing the filing of a petition for forfeiture and to file a motion for reconsideration. The notice must be sent at the right address. Preliminary Investigation Must Be Completed Where the rules of the Ombudsman (R.A. No. 6770, Sec. 7, Rule II, Administrative Order No. 7), allows a party to file a motion for reconsideration, but the respondents were not furnished a copy of the resolution and an opportunity to file a motion for reconsideration before the filing of the information against them in court, the Supreme Court held that, they were deprived of their right to a full preliminary investigation preparatory to the filing of the information against them, which warranted the remand of the case to the Office of the Ombudsman to complete the preliminary investigation. The failure, however, to furnish the respondent with a copy of an adverse resolution pursuant to Section 6, Rule II of the Rules of Procedure of the Office of the Ombudsman, does not affect the validity of information thereafter filed. Under Section 7(b) of the same Rule no motion from reconsideration or reinvestigation shall be entertained after the information shall have been filed in court, except upon order of the court wherein the case was filed. Thus, when required by law the right to a preliminary investigation is a substantial right and its denial amounts to a denial of due process. Its absence, however, is not a ground for a motion to quash. General Court Martial Under Military law, the conduct of investigations is primarily governed by Articles 71 of the Articles of War, which provides: Charges and specifications must be signed by a person subject to military law, and under oath either that he has personal knowledge of, or has investigated the matters set forth therein and that the same are true in tact, to the best of his knowledge and belief. No charge will be referred to a general court martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline.

At such investigation, full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. Before directing the trial of any charge by general court-martial the appointing authority will refer it to his staff judge advocate for consideration and advise. SEC. 4. Resolution of Investigating Prosecutor and its Review
COMMENTS: 1. Under the amendment, whether the recommendation of the investigating officer is to file or dismiss the case, he shall, within five (5) days from his resolution, forward the records of the case to the provincial or city prosecutor or chief state prosecutor or, for offenses cognizable by the sandiganbayan in the exercise of its original jurisdiction, to the ombudsman or his deputy the latter shall take appropriate action thereon within ten (10) days from receipt and shall immediately inform the parties of said action. For offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, the records should be remanded to the Ombudsman, since it is the latter that has primary jurisdiction to investigate, file and prosecute said cases.' The rule recognize the right of a party to appeal to the Secretary of Justice and requires that the parties be notified of the recommendation of the action to be taken thereon. Under Sec. 11 of Rule 116, among the grounds for suspension of the arraignment is when: "(c) A petition for review of the prosecutor's resolution 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."

The preliminary designation of the offense in a directive to file counter affidavits is not conclusive as to the true nature of the offense charged. The Right to be Present Not Absolute The New Rules on Criminal Procedure does not require as a condition sine qua non to the validity of the proceedings in the preliminary investigation; the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics. Thus, preliminary investigation can be conducted ex-parte if the respondent cannot be subpoenaed or does not appear after due notice. The fiscal need not call the witnesses for clarificatory questioning if the evidence on hand already yields probable cause. The Right to Notice The, respondent is, however, entitled to be notified of the proceedings and to be present thereat. The fact that he was not so notified is a denial of fundamental

2.

3.

Role of the Prosecutor Prosecutors should not allow, and should avoid giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for the political ends or other purposes alien to, or subversive of, the basic and fundamental objective of

120

serving the interest of justice even-handedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the impartiality of the prosecutor be enhanced.

121

Officer Conducting Preliminary Investigation Must be Impartial

Discretion of Prosecutor The investigating fiscal has discretion to determine the specificity and adequacy of averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if he otherwise finds no ground to continue with the inquiry, or proceed with the investigation if the complaint is, in his new, in due and proper form. It is not his duty to require a more particular statement of the allegations of the complaint merely upon the respondents' motion and specially where, after an analysis of the complaint and its supporting statements, he finds it sufficiently definite to apprise the respondents of the offenses with which they are charged. The institution of a criminal action depends upon the sound discretion of the fiscal. He has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court. Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure, the Information shall be prepared by the Investigating Prosecutor against the respondent only if he or she finds probable cause to hold such respondent for trial. The Investigating Prosecutor acts without or in excess of his authority under the Rule if the Information is filed against the respondent despite absence of evidence showing probable cause therefor.
Duty of Investigation Fiscal; Effect of Absence of Certification

An indispensable requisite of due process is that the person who presides and decides over a proceeding, including a preliminary investigation, must possess the cold neutrality of an impartial judge. Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon. The authority of a prosecutor or investigating officer duly empowered to preside or conduct a preliminary investigation is no less than that of a municipal judge or even a regional trial court judge. While the investigating officer, strictly speaking, is not a "judge," by the nature of his functions, he is and must be considered to be a quasi-judicial officer. It should be realized that when a man is hailed to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of prima facie case before filing the information in Court. Anything less would be a dereliction of duty. The officer who review a case on appeal should not be the same person whose decision is under review.

The designation of the offense by the Fiscal is not binding upon the Court.
Remedies if There is No Preliminary Investigation

Absence of preliminary investigation does not impair the validity of information. It is not a ground for a motion to quash. Absence of Preliminary Investigation is not a ground for motion to quash. Dismissal for lack of Preliminary Investigation is not allowed, The remedy is to hold in abeyance proceedings and order the Fiscal to hold preliminary Investigation The same principles were stressed in Torralba v. Sandiganbayan.
Proper Forum to Raise Absence of Preliminary Investigation

The proper forum before which absence of preliminary investigation should be ventilated is the Regional Trial Court and not the Supreme Court. Absence of a preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings that could be waived. Habeas Corpus Not a Remedy If there was no preliminary investigation, the remedy is not a petition for habeas corpus but a motion before the trial court to quash the warrant of arrest, and/or the Information on grounds provided by the Rules, or to ask for an investigation/reinvestigation of the case. Habeas corpus would not lie after the Warrant of Commitment was issued by the Court on the basis of the Information filed against the accused. So it is explicitly provided for by Section 14, Rule 102 of the Rules of Court x x x. Ilagan was a reiteration of the Supreme Court's ruling in People v. Casiano. The same rule was reiterated in Doromal v. Sandigabayan.

If a preliminary investigation was actually conducted, the absence of certification by the investigating fiscal that it was conducted is not fatal. Absence of certification as to holding of Preliminary Investigation does not affect validity of information. The certification "that a preliminary investigation has been conducted in this case; that there is a reasonable ground to engender a well-founded belief that a crime has been committed and that the accused are probably guilty thereof is sufficient. The failure to state therein that the accused was informed of the complaint and was given an opportunity to submit controverting evidence is fatal and untenable.
Designation of Offense by Fiscal Not Binding Upon Court

122

If there was no preliminary investigation, the accused must (a) refuse to enter a plea upon arraignment and object to further proceedings upon such ground; (b) insist on preliminary investigation; (c) file certiorari if refused; (d) raise lack of preliminary investigation as error on appeal; (e) file prohibition. When Habeas Corpus allowed Habeas Corpus was allowed as a remedy for irregular preliminary investigation conducted by a municipal judge in a murder case, who without legal authority for being disqualified as a relative within the 3rd degree and without proper preliminary examination ordered the issuance of a warrant of arrest as a consequence of which accused was illegally detained. The judge then remanded the case to the provincial prosecutor who was then held as without authority to lift the warrant of arrest. The judge was considered, as in construe five custody of the accused, by virtue of an illegal warrant of arrest. Appeals to the Secretary of Justice The power of supervision and control by the Minister of Justice over the fiscals cannot be denied. As stated in Noblejas v. Sales, "Section 79 of the Revised Administrative Code defines the extent o a department secretary's power. The power of control therein contemplated means (the power of the department head) to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The power of control implies the right of the President (and, naturally, of his alter ego) to interfere in the exercise of such discretion as may be vested by law in the officers of the national government, as well as to act in lieu of such officers." For, while it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown to be guilty of a crime, the Minister of Justice is likewise bound by his oath of office to protect innocent persons from groundless, false or serious prosecution. He would be committing a serious dereliction of duty if he orders

or sanctions the filing of an information based upon a complaint where he is not convinced that the evidence would warrant the filing of the action in court. As he has the power of supervision and control over prosecuting officers, the Minister of Justice has the ultimate power to decide which as between conflicting theories of the complainant and the respondents should be believed. Thus, the DOJ Order allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek review of the prosecutor's recommendation with the Secretary of Justice. Power of Secretary to Review The power of the Secretary of Justice to review resolutions of his subordinates even after the information has already been filed in court is well settled. In Marcelo v. Court of Appeals, reiterated in Roberts v. Court of Appeals, the Court clarified that nothing in Crespo v. Mogul, forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an information already having been filed in court.
Nature of Justice Secretary's Power of Control over prosecutors

commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; x x x.'

Supplementing the aforequoted provisions are Section ofR.A. No. 3783 and Section 37 of Act 4007, which read:
'Section 3. x x x The Chief State Prosecutor, the Assistant Chief Stat( Prosecutors, the Senior State Prosecutors, and the Statt Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the in terest of public service.'

SECTION 37. THE PROVISIONS OF THE EXISTING LAW TO TH( CONTRARY NOTWITHSTANDING, WHENEVER A SPECIFIC POWER AUTHORITY, DUTY, FUNCTION, OR ACTIVITY IS ENTRUSTED TO A CHIEF OF BUREAU, OFFICE, DIVISION OR SERVICE, THE SAME SHALL B( UNDERSTOOD AS ALSO CONFERRED UPON THE PROPER DEPARTMENT HEAD WHO SHALL HAVE AUTHORITY TO ACT DIRECTLY IN PURSUANCE THEREOF, OR TO REVIEW, MODIFY, OR REVOKE ANY DECISION OR ACTION OF SAID CHIEF OF BUREAU, OFFICE, DIVISION OR SERVICE." 'SUPERVISION' AND 'CONTROL' OF A DEPARTMENT HEAD OVER HIS SUBORDINATES HAVE BEEN DENNED IN ADMINISTRATIVE LAW AS FOLLOWS: 'IN ADMINISTRATIVE LAW, SUPERVISION MEANS OVERSEEING OR THE POWER OR AUTHORITY OF AN OFFICER TO SEE THAT SUBORDINATE OFFICERS PERFORM THEIR DUTIES.
If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.'

The nature of the Justice Secretary's power of control over prosecutors was explained in Ledesma u. Court of Appeals, in this wise: "DECISIONS OR RESOLUTIONS OF PROSECUTORS ARE SUBJECT TC APPEAL TO THE SECRETARY OF JUSTICE WHO, UNDER THE REVISED ADMINISTRATIVE CODE EXERCISES THE POWER OF DIRECT CONTROL AND SUPERVISION OVER SAID PROSECUTORS; AND WHO MAY THUS AFFIRM; NULLIFY, REVERSE OR MODIFY THEIR RULINGS. SECTION 39, CHAPTER 8, BOOK IV IN RELATION TO SECTION[S] 5; 8, AND 9, CHAPTER 2, TITLE III OF THE CODE GIVES THE SECRETARY OF JUSTICE SUPERVISION AND CONTROL OVER THE OFFICE OF THE CHIEF PROSECUTOR AND THE PROVINCIAL AND CITY PROSECUTION OFFICES.
The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: '(1) Supervision and Control. Supervision and control shall include authority to act directly whenever s specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the

Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed." Hence, after the Resolution of the provincial fiscal have already been affirmed the resolution of the Prosecutor which in effect is

123

a finding of the Secretary of Justice himself as to the existence of probable cause to hold the accused for trial, the Fiscal should not conduct another reinvestigation and the court should not entertain the same. The Secretary of Justice who has the power of supervision and control over prosecuting officers, is the ultimate authority who decides which of the conflicting theories of the complainants and the respondents should be believed. The provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of the Secretary. A motion for reinviestigation on the ground of newly discovered evidence must be filed before the Secretary of Justice rules on an appeal from a resolution in a preliminary investigation. The Court still reiterated in the 2005 case of Serag, the 1994 case of Marcelo for the Court to suspend the proceedings until after the Secretary of Justice had resolved the motion with finality and cited Section 7 of DOJ Circular No. 70 which provides:
SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review.

Appeals, that there is nothing in Crespo v. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court." The Secretary of Justice is only enjoined to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. In Roberts, the Court went further by saying that Crespo could not have foreclosed said power or authority of the Secretary of Justice "without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court." While the section speaks of resolutions dismissing a criminal complaint, petitioners were not barred from appealing from the resolution holding that only homicide was committed, considering that their complaint was for murder. By holding that only homicide was committed, the Provincial Prosecutor's Office ofPampanga effectively "dismissed" the complaint for murder. Accordingly, petitioners could file an appeal under said Section 1. To rule otherwise would be to forever bar redress of a valid grievance, especially where the investigating prosecutor, demonstrated what unquestionably appeared to be unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the sense that appeals by the offended parties are allowed only in case of dismissal of the complaint, otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.
Need to Defer Arraignment if DOJ had Already Given Due Course to Appeal

Justice may have on the matter would independence and integrity of this court."

undermine

the

Thus the complainant cannot be stripped of the Secretary's authority to act on and resolve the motion of the private complainant on the Prosecutor's insistence that the accused be arraigned on June 6, 2002. Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of Justice may resolve the said motion despite the arraignment of the petitioners. Once a petition for review is filed with the DOJ it behooved the RTC to suspend the proceedings until after the Secretary of Justice had resolved the motion with finality, including the consideration of the motion of the Provincial Fiscal for the admission of the Second Amended Information for homicide, the dismissal of Criminal Case No. 926 and the arraignment of the Petitioner for homicide. The court reiterated its earlier ruling in Marcelo v. Court of Appeals (supra). COMPARE
Under Section ll(c) of Rule 116 the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. (This is a new Rule under the 2000 Rules on the Revised Rules of Criminal Procedure.) The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office after the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment. Despite the foregoing provision and ruling, the Court in the 2005 case ofSerag (supra) reiterated the 1994 ruling in the case ofMarcelo (supra) for the Court to suspend the proceedings until after the Secretary of Justice had resolved the motion with finality and cited Section 7 ofDOJ Circular No. 70 which provides:
SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration.

More importantly, the ruling in Solar Entertainment, Inc. v. Haw, that the thirty-day period to suspend the arraignment (as provided for in Section 2 of Circular No. 38-98) is not absolute was reiterated in the 2006 case of Lumanlaw v. Peralta, Jr.
Secretary of Justice to Refrain Only as Far as Practicable from Review of Cases Already Filed in Court

In Dee v. Court of Appeals, the Supreme Court reiterated its pronouncement in Crespo v. Mogul, that the Secretary of Justice as far as practicable, should refrain from entertaining a petition for review of appeal from the action of the fiscal, when the complaint or information has already been filed in court. The matter should be left entirely for the determination of the Court. The Court, however, clarified en bane in Roberts v. Court of

If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review. This may be interpreted to mean that while the Court may not suspend the arraignment beyond the 60 day limitation, it may still suspend the trial pending final resolution by the DOJ. Under the Speedy Trial Rule any period of delay resulting from other proceedings concerning the accused including but not limited to those

Where the DOJ had already given due course to the petition er's petition for review, it was premature for respondent judge to deny the motions to suspend proceedings and to defer arraignment on the ground that "since the case is already pending for trial, to follow whatever opinion the Secretary of

124

enumerated in Section 3 of Rule 119 in computing the time within which trial must commence shall be excluded
f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of his findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial.*9

The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. Preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge." Determination of Probable Cause Not a Supreme Court Function: Exceptions

h. i. j.

Where it is a case of persecution rather than prosecution; Where the charges are manifestly false and motivated by the lust for vengeance; When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.

The Supreme Court stressed that the real and ultimate test of the independence and integrity of the court is not the filing of the motion to suspend at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the pronouncement in Crespo v. Mogul, that "once a complaint or information is filed in court any disposition of the case as its dismissal or the conviction of accused or acquittal of the accused rests in the sound discretion of the court," did not yet become relevant or applicable. However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful excercise of judicial nrerogative on the duty of the trial judge to make an independent assessment and finding of the evidence, it not being sufficient for the valid and proper excercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency. In the absence of such a finding, the order of the court denying or granting the motion is void. The procedure of appeals to the Secretary of Justice were consolidated and modified by Department of Justice Circular No. 70 dated July 3, 2000 entitled 2000 NFS RULE ON APPEAL (Appendix F) and Department Circular No. 70-A dated July 10, 2000 DELEGATION OF AUTHORITY TO REGIONAL STATE PROSECUTORS TO RESOLVE APPEALS IN CERTAIN CASES. Determination of Probable Cause, Either Executive or Judicial Prerogative

k.

In these exceptional cases, the Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation, and may also restrain a preliminary investigation. The Court in the "349" Pepsi-Cola cases recognized the several thousands of complainants in Criminal Case No. Q-93-43198 (in which the order of arrest was appealed to the DOJ), and several thousands more in different parts of the country who are similarly situated as the former for being holders of "349" Pepsi crowns, any affirmative holding of probable cause in the said case nay cause or provoke, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premium on the bail bonds and for travels from one court to another throughout the length and breath of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time and energy, which they could devote to other equally, if not more, important cases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions a situation already long conceded to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by injunction. The Court, however, refused to reevaluate the evidence to determine if indeed there is probable cause for the issuance of warrants of arrest in Criminal Case No. 93-43298, as it did, in Allado and Webb for, as reasoned out by the Court, the respondent Judge did not, in fact, find that probable cause exists, and if he did he did not hrve the basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb.

The Court thus pointed out that ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to the rule, among which were enumerated in Brocka v. Enrile, as follows: a. b. c. d. e. f. g. To afford adequate protection to the constitutional rights of the accused; When necessary for the orderly administration of justice or to avoid oppression or multiplicity or actions; When there is a prejudicial question; When the acts of the officer are without or in excess of authority; Where the prosecution is under an invalid law, ordinance or regulation; When double jeopardy is clearly apparent; Where the court has no jurisdiction over the offense;

In criminal prosecutions, the determination of probable cause may either be an executive or judicial prerogative. In People v. Inting, the Court aptly stated: "JUDGES AND PROSECUTORS ALIKE SHOULD DISTINGUISH THE PRELIMINARY INQUIRY WHICH DETERMINES PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF ARREST FROM A PRELIMINARY INVESTIGATION PROPER WHICH ASCERTAINS WHETHER THE OFFENDER SHOULD BE HELD FOR TRIAL OR RELEASED.
Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge.

125

Moreover, the records of the preliminary investigation are not with the court but with the DOJ. The Supreme Court held that the trial court and the DOJ must be required to perform their duty. The Court, therefore directed the DOJ to resolve on the merits, petitioner's petition for review of the Joint Resolution of the Investigating prosecutors and thereafter file the appropriate motion or pleading before respondent Judge which he shall then resolve in the light of Crespo v. Mogul. In the meantime, respondent Judge was directed to cease and desist from further proceeding with the criminal case and to defer the issuance of warrants of arrest against the petitioners. Under section ll(c), Rule 116, Upon motion of the proper party, the arraignment shall be suspended when 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.
Determination of Probable Cause in Preliminary Investigation Exclusively Pertains to Prosecutor

one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory, and cannot lead to a final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime. Whether or not that function has been correctly discharged by the public prosecutor i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case is a matter that the trial court itself does not and may not be compelled to pass upon. There is no provision of law authorizing an aggrieved party to petition for such a determination. It is not for instance permitted for an accused, upon the filing of an information against him by the public prosecutor, to pre-empt trial by filing a motion with the Trial Court praying for the quashal or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth adequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused. (N.B.: Where, however, the public prosecutor finds that probable cause exists as regards several suspects but unaccountably files the information only against some, but not all of them, mandamus will lie to compel him to include in the indictment those he has excluded.) Besides, the function that this Court is asked to perform is that of a trier of facts which it does not generally do, and if at all, only exceptionally, as in an appeal in a criminal action where the penalty of life imprisonment, reclusion perpetua, or death has been imposed by a lower court (after due trial, of course), or upon a convincing showing of palpable error as regards a particular factual conclusion in the judgment of such lower court. What, in sum, is being attempted in this Court is to reverse the established and permanent order of things for the Court to act before trial and judgment by a lower tribunal; to require it to perform the role of trier of facts which, to repeat, it does not generally do, the issues properly cognizable by it being normally limited exclusively to questions of law to make it do something that even the trial court may not do at this stage of the

proceedings itself to determine the existence of probable cause; to usurp a duty that exclusively pertains to an exclusive official (supra, at note 3) to conduct a preliminary investigation or review the findings and conclusions of the public prosecutor who conducted one. The matter is not within the review jurisdiction of the Court as this is clearly specified in the Constitution, a jurisdiction which even the Congress may not increase "without * * * (the Court's) advice and concurrence." From the pragmatic aspect, it is also an undesirable thing, for the result could well increase the already considerable work load of the Court. Furthermore, any judgment of this Court in this action would be inconclusive, as above intimated. It would not necessarily end the case. It would not, for instance, prevent the complaining witnesses from presenting additional evidence in an effort to have the information ultimately filed in the proper court against the accused, or the respondents from asking for a reinvestigation and presenting additional or other evidence warranting the dropping of the case. The Court would thus have wielded judicial power without a definite settlement of rights and liabilities. There are set rules, and procedural mechanisms in place for the determination of probable cause at the level of the public prosecutor, the Department of Justice and, to a certain extent, the Regional Trial Court. No recourse to this Court should normally be allowed to challenge their determinations and dispositions. I therefore vote to refer to the Department of Justice for resolution, the petition for the review of the Joint Resolution issued by Investigating Prosecutor Ramon Gerona.
Finding of Probable Cause by Prosecutor To hold Accused For Trial Distinguished From Finding of Probable Cause of Judge To Issue Warrant

In a separate opinion. Chief Justice Narvasa expressed concurrence with the disposition of the case, that the determination of whether or not probable cause exists to warrant the prosecution in court of the petitioners should be consigned and entrusted to the Department of Justice as reviewer of the findings of the public prosecutor. Further elucidating on his reasons, the Chief Justice stated: "IN THIS SPECIAL CIVIL ACTION, THIS COURT IS BEING ASKED TO ASSUME THE FUNCTION OF A PUBLIC PROSECUTOR. IT IS BEING ASKED TO DETERMINE WHETHER PROBABLE CAUSE EXISTS AS REGARDS PETITIONERS.
More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the" parties and, on the basis thereof, make a conclusion as to whether or not it suffices 'to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.'"

It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor,

The foregoing disquisition of the Chief Justice should, however, be taken in the light of the distinction of whether the preliminary investigation is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature.

126

It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge, but it is only after the first kind have been exhausted, that the second kind comes in and the Crespo rule applies. Before that time, the pronouncement in Crespo that "any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the discretion of the court "is not yet relevant and applicable. When the second kind comes in, the court must, then exercise independent judgment, personally evaluate the documents and evidence adduced before the Fiscal, and determine for itself the existence of probable cause for the issuance of warrants of arrest. If there is a motion to dismiss or withdraw the information, the court must exercise its judicial prerogative, make an independent assessment of the evidence and make its own findings it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency.
Finding by Judge of Probable Cause Not Subject to Judicial Review

As a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of public prosecutor courts should not dismiss it for want of evidence.
Remedy Where Minister of Justice Refuses Filing of Case

faculty may not be interfered with, for a prosecution may not be compelled by mandamus to file a criminal information where he is convinced that he does not have the necessary evidence against an individual, x x x." While the prosecuting officer is required by law to charge all bhose who, in his opinion, appear to be guilty, he nevertheless cannot be compelled to include in the information a person against whom he believes no sufficient evidence of guilt exists. The appreciation of the evidence involves the use of discretion on the part of the arosecutor. The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. But even the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case, the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition. Moreover, before resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same case must first avail itself of other adequate remedies such as the filing of a motion for such reconsideration of decision. The rule is thus settled that the court's duty in an appropriate case is confined to determining whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. Thus, although it is entirely possible that the investigating fiscal may erroneously exercise the discretion lodged in him by law, this does not render his act amenable to correction and annulment by the extraordinary remedy of correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. The remedy of mandamus does not lie to compel public respondents to file an Information against private respondents. There being no showing of grave abuse of discretion on the part of public respondents which would warrant the overturning of their decision to dismiss the complaint against the private

The remedy of complainant in a case where the Minister of Justice would not allow the filing of a criminal complaint against an accused because it is his opinion that the evidence is not sufficient to sustain an information for the complaint with which the respondents are charged of, is to file a civil action as indicated in Article 35 of the Civil Code, which provides: "ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED BY A CRIMINAL OFFENSE, CHARGES ANOTHER WITH THE SAME, FOR WHICH NO INDEPENDENT CIVIL ACTION IS GRANTED IN THIS CODE OR ANY SPECIAL LAW, BUT THE JUSTICE OF THE PEACE FINDS NO REASONABLE GROUNDS TO BELIEVE THAT A CRIME HAS BEEN COMMITTED, OR THE PROSECUTING ATTORNEY REFUSES OR FAILS TO INSTITUTE CRIMINAL PROCEEDINGS, THE COMPLAINANT MAY BRING A CIVIL ACTION FOR DAMAGES AGAINST THE ALLEGED OFFENDER. SUCH CIVIL ACTION MAY BE SUPPORTED BY A PREPONDERANCE OF EVIDENCE. UPON THE DEFENDANT'S MOTION, THE COURT MAY REQUIRE THE PLAINTIFF TO FILE A BOND TO INDEMNIFY THE DEFENDANT IN CASE THE COMPLAINT SHOULD BE FOUND TO BE MALICIOUS." If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Availability of Appeal From DOJ The Resolution of the DOJ Secretary is appealable administratively to the Office of the President where the offense charged is punishable by Reclusion perpetua. (From the Office of the President the aggrieved party may file an appeal with the Court of Appeals pursuant to Rule 43 [Supra])
Unavailability of Mandamus or Certiorari To Compel Filing of Cases

Moreover, a finding probable cause by the judge for purposes of issuing a warrant of arrest after an evaluation of the documents and other supporting evidence, should no longer, in the meantime, be subject to judicial review, except in the regular course of appeal, for to paraphrase the Chief Justice in his separate opinion, that would be asking the court to examine and assess such evidence as has thus far been submitted by the parties, before the trial, and, on the basis thereof make a conclusion as whether or not, it suffices to establish the guilt of the accused. There are set of rules, and procedural mechanisms in place for the determination of probable cause at the level of the public prosecutor, the Department of Justice and, to a certain extent, the Regional Trial Court. No recourse to the higher court should normally be allowed to challenge their determinations and dispositions.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect

The prosecutor's finding of probable cause is entitled to highest respect. This is a function that the court should not be called upon the perform.

In Lim u. Court of Appeals, the Court reiterated the rule of long standing that the matter of deciding who to prosecute is a prerogative of the prosecuting fiscal as a quasi-judicial officer, who assumes full discretion and control of the case and this

127

respondents, corollarily, there is also no ground to issue a writ of mandamusl Where the preliminary investigation falls under the first kind, the decision whether or not to dismiss the complaint against private respondents is necessarily dependent on the sound discretion of the prosecuting fiscal, and ultimately that of the Secretary or Undersecretary (acting for the Secretary) of Justice (which ordinarily is not compellable by mandamus. Exception When Mandamus Available However, if government prosecutors make arbitrary choices of those they would prosecute under a particular law, excluding from the indictment certain individuals against whom there is the same evidence as those impleaded, the fault is not in the law but in the prosecutors themselves whose duty it is to file the corresponding information or complaint against all persons who appear to be liable for the offense involved, a duty that should be performed responsibly, without discrimination, arbitrariness or oppression. If that duty is not performed evenhandedly, the persons aggrieved are not without remedy. They may avail of the remedy of mandamus to compel compliance with that duty by the prosecutors concerned. NOTE: It was held in Yap u. IAC, that certiorari does not lie to annul the Municipal judge's order finding probable cause that the accused committed the crime charged and consequently ordering their arrest. Remedies are: (1) (2) (3) (4) (5) posting bail; ask provincial fiscal for reinvestigation; petition for review; motion to quash information; if denied appeal, the judgment after trial.104

Summing up, the Court in Ching v. The Secretary of Justice held:

In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court held that the acts of a quasi-judicial officer may be assailed by the aggrieved party via a petition for certiorari and enjoined: (a) (b) (c) (d) (e) when necessary to afford adequate protection to the constitutional rights of the accused; when necessary for the orderly administration of justice; when the acts of the officer are without or in excess of authority; where the charges are manifestly false and motivated by the lust for vengeance; and when there is clearly no prima facie case against the accused.

Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitution), the inordinate delay is violative of the accused's constitutional rights. A delay of close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstances obtaining in the case. The suggestion that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information, is without merit. The absence of a preliminary investigation can only be corrected by giving the accused such investigation. But an undue delay in the conduct of preliminary investigation cannot be corrected, for until now, man has not yet invented a device for setting back the time. The principle is not, however, applicable where the delay in the termination of the preliminary investigation cannot be imputed solely to the prosecution but because of incidents which are attributable to the accused and his counsel. SEC. 5. When Warrant of Arrest may Issue
COMMENT: a. The provisions of the former Section 5 relating to the preliminary investigation by a judge were deleted. Section 6 was modified (bb) by deleting reference to preliminary investigation by the MTC are changing the same to prosecutor accordingly transposed to Section 5. The first paragraph on the issuance of warrant of arrest by the Regional Trial Court is in conformity with the rulings of the Supreme Court. The former Rule simply provides that a warrant of arrest may be issued by the Regional Trial Court upon the filing of the information. This was because before the 1987 constitution, a warrant of arrest may be issued by the Regional Trial Court on the basis merely of the certification of the investigating fiscal that there is probable cause. Under the 1973 not only the Judge but also by any responsible officer, which includes a fiscal, may determine Constitution probable cause. This is no longer true. Under the 1987 Constitution it is only the

The Court also declared that, if the officer conducting a preliminary investigation (in that case, the Office of the Ombudsman) acts without or in excess of his authority and resolves to file an Information despite the absence of probable cause, such act may be nullified by a writ of certiorari. If the Secretary of Justice reverses the Resolution of the Investigating Prosecutor who found no probable cause to hold the respondent for trial, and orders such prosecutor to file the Information despite the absence of probable cause, the Secretary of Justice acts contrary to law, without authority and/or in excess of authority. Such resolution may likewise be nullified in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure. In the same manner, just as the Court may resolve to overrule the finding of probable cause as in Allado v. Diokno, the Court may also overrule the decision of the judge reversing a finding of probable cause, also on the ground of grave abuse of discretion.

However, while probable cause should be determined in a summary manner, there is a need to examine the evidence with care to prevent material damage to a potential accused's constitutional right to liberty and the guarantees of freedom and fair play and to protect the State from the burden of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges.
Effect of Delay in Conducting Preliminary Investigation

b.

Exception When Certiorari as a Remedy Allowed However, certiorari was allowed as a remedy to annul dismissal of the petition for review by the Secretary of Justice for lack of jurisdiction since the dispute involves an intra-corporate one which (then) falls under the jurisdiction of the Securities and Exchange Commission. Certiorari was allowed also to annul the Order of the ETC Judge for the issuance of warrant of arrest on the ground that there was no probable cause.

The long delay in the termination of preliminary investigation by the Tanodbayan is violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law.

128

judge who is authorized to determine personally the existence of probable cause. Hence, jurisprudence evolved, that for purposes of determining probable cause for the issuance of a warrant of arrest, the judge must personally evaluate the prosecutor's report, the evidence adduced during the preliminary investigation. These jurisprudence are now capsulized in the present rule. Under this rule, the judge must determine the existence of probable cause within ten (10) days from the filing of the information. This is intended to prevent prolonged detention of a person who is arrested without a warrant, only to turn out that the arrest was not lawful. If the accused had already been arrested, the judge must within the same period often (10) days determine the existence of probable cause and issue an order of commitment. The judge may, on the other hand, disregard the prosecutor's report and require the submission of additional evidence to determine the existence of probable cause. If the judge still finds no probable cause, he shall dismiss the case. c. In cases falling under the original jurisdiction of the municipal trial court, which require a preliminary investigation, the preliminary investigation shall be conducted by the prosecutor 1) If such preliminary investigation is conducted by a prosecutor, the procedure in the preceding section (5a) on the issuance of a warrant arrest shall be applied upon the filing ol the information. Under this situation, probable cause may be determined by the Judge on the basis of the evidence adduced before the prosecutor, which conducted the preliminary investigation. 2) Subsection (c) is new provision. When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. Under this subsection, a warrant of arrest need not be issued if the accused is already under detention pursuant to a warrant issued by the Municipal Trial Court in accordance with section (5b) of this rule or if the complaint or information was filed pursuant to section 6 hereof, the court shall then proceed in the exercise of its original jurisdiction.

grounds stated therein. It is usually directed to regular officers of the law, but occasionally, it is issued to a private person named in it. John Doe Warrants Warrant of arrests issued against "John Doe" whom the witnesses to the complaint could not identify are in the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." Such warrants are void because they violate the constitutional injunction that warrants of arrest should particularly describe the person or persons to be seized.
Judge May No Longer Rely on FiscaLs Certification

submission of supporting affidavits of witnesses ;o aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would he unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. b. The doctrine was reiterated in Enrile v. Salazar, holding that it is not the unavoidable duty of the judge to make a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. * * * the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge. The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as briefer as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require. It is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.

The earlier rulings of the Supreme Court which allows the Judge in the exercise of its discretion, whether or not to determine the existence of probable cause and issue a warrant of arrest on the basis of the Fiscal's Certification which were capsulized in Circular No. 12, dated November 30, 1987 have in effect been abandoned by the Supreme Court in the light of the 1987 Constitution which provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. a. The withdrawal started with the case of Soliven v. Makasiar6 decided after the effectivity of the 1987 Constitution where the Supreme Court then held that the addition of the word "personally" after the word "determined" underscores the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, in the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the

Warrant of Arrest, Defined A warrant of arrest is a legal process issued by competent authority, directing the arrest of a person or persons upon

129

Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. In Cruz v. People (supra), petitioner would have respondent court order the production of the records of the preliminary investigation in its determination of the existence of probable cause for the issuance of the warrant of arrest. The Supreme Court held: "First and foremost, as hereinabove stated, in a preliminary examination for the issuance of a warrant of arrest, the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause." In Webb u. De Leon, the Supreme Court again reiterated the doctrine in the seminal case of Soliven v. Makasiar (supra), in the issuance of warrants of arrest by the RTC. Petitioners in the Webb case challenged the validity of the warrants of arrest issued in said case on the following grounds: (1) the issuance of the warrants of arrest was made in a matter of few hours; (2) the failure of the judge to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; xxx. petitioners postulate that it was impossible to conduct a searching examination of witnesses and evaluation of the documents on the part of the judge. After pointing out the differences in the issuance of a search warrant and a warrant of arrest and its ruling in Soliven v. Makasiar (supra), the Supreme Court stressed that before issuing warrants of arrest, judges merely determine personally the probability, and not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to

determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the judges a few hours to review and affirm the probable cause determination of the DOJ panel does not mean they made no personal evaluation of the evidence attached to the records of the case. Explaining its ruling in Allado u. Diokno, which reversed trial court's finding of probable cause and ordered outright dismissal of the case, the Court stated that Allado ruling is predicated on the utter failure of evidence to show the existence of probable cause. the the the the

information but is a ground for the dismissal of the case under Section 5[6], Rule 112 which is without prejudice. The trial court is mandated to immediately dismiss the case upon finding that no probable cause exists to issue a warrant of arrest and after having evaluated the resolution of the fiscal and supporting information.
The Need for Personal Evaluation of Documents Not Merely Resolution

The absence or presence of probable cause is to be determined from the material avernments of the information the appendages thereof as enumerated in Rule 112, Section 8 of the Rules. The Courts attention was again focused on the issuance of warrants of arrest in the en bane decision in Roberts u. Court of Appeals, where the court emphasized the need for the court prior to the issuance of the warrant of arrest to evaluate "the affidavits, the transcript of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination of probable cause." The teachings then of Soliven, Inting, Lim, Allado, and Webb, reject the proposition that the investigating prosecutor's certification in an information or his resolution which is made the basis for the filing of the information, or both, would suffice in the judicial determination of probable cause in the judicial determination of probable cause for the issuance of a warrant of arrest. The court went on to explain that in Webb, this Court assumed that since the respondent Judges had before them not only the 26 page resolution of the investigating panel, but also the affidavits of the prosecution witnesses and even the counteraffidavits of the respondents, they (judges) made a personal evaluation of the evidence attached to the records of the case. On the Need to Make Separate Finding of Probable It was held that where, the information was not accompanied by any document, and there is nothing in the records or evidence supporting the prosecutor's finding of probable cause except the Joint Resolution as bases thereof and does not have the records or evidence supporting the prosecutor's finding of probable cause, the Court declared the Order for the issuance of the warrant of arrest as invalid. The court found it strange that there is no specific finding of probable cause but a mere directive to issue the warrants of arrest.

Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, the court there stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non existence of probable cause before issuing warrants of arrest against the accused. The case at bar rests on a different factual setting. The various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioners. The Court concluded:
"Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted searching examination of witnesses before issuing warrants of arrest against them. They also reject petitioners contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest."

Outright Dismissal The absence of probable cause for the immediate issuance of a warrant of arrest is not a ground for the quashal of the

130

The Court rejected the argument that the directive presupposes a finding of probable cause. "Compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture or even convincing logic." The Court in Roberts rejected the court of appeals' finding that the Joint Resolution is sufficient in itself to have been relied upon by the respondent judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest. Thus: "To bolster its finding, the Court of Appeals held that the mere silence of the records or the absence of any express declaration in the questioned order of May 17, 1993 as to where the respondent Judge based his finding of probable cause does not give rise to any adverse inference on his part. The fact remains that the Joint Resolution was at respondent Judge's disposal at the time he issued the Order for the issuance of the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of regularity in the performance of his official duties. And this presumption prevails until it is overcomed by clear and convincing evidence to the contrary. Every reasonable intendment will be made in support of the presumption, and in case of doubt as to an officer's act being lawful or unlawful, it should be construed to be lawful." The Court expressed its inability to agree with this disquisition, for it merely assumes at least two things: (1) that respondent Judge Asuncion had read and relied on the Joint Resolution; and (2) he was convinced that probable cause exists for the issuance of warrants of arrest against the petitioners. Nothing in the records provides reasonable basis for these assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state, he found probable cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of warrants of arrest only after June 21, 1993. If he did read the Joint Resolution and, in so reading, found probable cause, there was absolutely no reason at all to delay for more than one

month the issuance of warrants of arrest. The most probable explanation for such delay could be that the respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for review. All told, it would seem from the foregoing discourse of the court that there is need to issue an order finding probable cause prior to the issuance of a warrant of arrest. Dissent on Need to Issue Separate Order The foregoing statements would appear to negate the pronouncement in Webb that there is no need for the court to first issue an order of arrest before issuing a warrant of arrest, and the presumption of regularity resorted to in justifying the issuance of a warrant of arrest from the mere availability of the records before the court in Enrile v. Salazar (supra), even in the absence of a separate finding of probable cause. In his dissent with the concurrence of Justice Mendoza, Justice Reynato Puno found as sufficent basis to justify a finding of probable cause the 17-page Joint Resolution of the Investigating Prosecutor, and pointed out that Soliven and other related cases did not establish the absolute rule that unless a judge has the complete records of the preliminary investigation before him, he cannot lawfully determine probable cause and issue a warrant of arrest. Soliven only held that it is the personal responsibility of the judge to determine probable cause on the basis of the report and supporting documents submitted by the fiscal; that he must independently evaluate the report and supporting documents if he finds no probable cause on the basis thereof, he can require submission of additional supporting affidavits of witnesses. There is nothing in Soliven that requires prosecutors to physically submit to the judge the complete records of the preliminary investigation especially if they are voluminous. Nor is there anything in Soliven that holds the physically submit the complete records of the constitutionally infirm a finding of probable cause even if it was made on the basis of an exhaustive report or resolution. omission to case would by a judge prosecutor's

respondent Judge to make a finding of probable cause. "When Judge Asuncion issued the warrants of arrest against petitioners, I assume as did the respondent Court of Appeals, that he had studied the Information and 17-page Resolution of the prosecutors and that he agreed with the prosecutor's findings of probable cause. It is unnecesary for him to issue an Order just to reiterate the findings of the prosecutors, xxx' Apparently to reconcile these conflicting views, the Court en bane in Ho v. People, laid down the following principles:
SUMMARY OF PRINCIPLES The court en banc summed up the following principles: First, The determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge, Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even il both should base their findings on one and the same proceeding 01 evidence, there should be no confusion as to their distinct objectives, Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence of nonexistence of probable cause is lodges in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also sc much of the records and the evidence on hand as to enable His honoi to make his personal and separate judicial finding on whether tc issue a warrant of arrest. Lastly, it is not required that the complete or entire records oi the case

Indeed, in Webb v. de Leon, we sustained the finding of probable cause made by the trial judge even if the complete records of the preliminary investigation were not elevated to the said judge. Justice Puno further maintains that there was no need for

131

during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. Thus, a warrant of arrest is void where the court did not per sonally determine the existence of probable cause but based the same merely on: (1) the resolution of the Panel of Investigators of the Ombudsman recommending the filing of the information, and (2) memorandum of the office of the Special Prosecutor denying the existence of a prejudicial question. The court, however clarified that: "It is not required that the issuing judge categorically state in his resolution that he personally determined the existence of probable cause. It is enough that it may easily be gleaned from the resolution directing the issuance of the warrant that he performed his duty in accordance with the constitutional mandate on the matter. Findings of Probable Cause as Prosecutors Entitled to Highest Respect

the issuance of a warrant of arrest is a judicial function, which must be determined separately, the Court, nonetheless ruled that the findings of the prosecutor is entitled to the highest respect. Thus, "Verily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so. Corollary to this principle, the judge should not override the public prosecutor's determination of probable cause to hold an accused for trial, on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient, as in the present case. Indeed, it would be unfair to expect, the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and the objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine "whether there is sufficient ground to engender a well-founded belief that a crime x x x has been committed and that the respondent is probably guilty thereof, and should be held for trial." Evidentiary matters must be presented and heard during the trial. Therefore, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of the public prosecutor, the trial court should respect such determination. The court stressed that its rulings in Allado v. Diokno and Salonga v. Pano, which set aside the trial court's finding's on the existence of probable cause, are exceptions to the general rule and may be invoked only if similar circumstances are clearly shown to exist.
Ruling Does Not Deviate from Need of Personal Evaluation

the fundamental law of the land commands the judge to personally determine probable cause in the issuance of warrants of arrest. A judge fails in this constitutionally mandated duty if he relies merely on the certification or report of the investigating officer. In merely stating that he had no reason to doubt the validity of the certification made by the investigating prosecutor, the judge has abdicated his duty under the constitution to determine on his own the issue of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should be declared null and void. In Cojuangco v. Sandiganbayan, the court declared the warrant of arrest issued in said case void because the respondent court did not personally determine the existence of probable cause but based the same merely on: (1) the resolution of the Panel of Investigators of the Ombudsman recommending the filing of the information and memorandum of the Office of the Special Prosecutor denying the existence of a prejudicial questions.

(2)

The Judge may order the production of the records and determine on the basis thereof the existence of probable cause or return the record and direct the Fiscal to conduct further investigation.
Effect of Refusal by Prosecution to Adduce Additional Evidence

The prosecutor's finding of probable cause is entitled to highest respect. This is a function that the court should not be called upon to perform. As a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of public prosecutor, courts should not dismiss it for want of evidence. While recognizing that the determination by the Prosecutor of probable cause to hold the accused for trial is an executive function as distinguished from the determination by the judge in

The Court held that the trial court may disregard the Fiscal's report and require submission of supporting affidavits of witnesses. The failure or refusal of the petitioner to present further evidence, although a good ground for the respondent Judge not to issue a warrant of arrest, is not a legal cause for dismissal. The judge was directed to proceed with the case, it being understood that, if within ten (10) days after notice by the judge, the petitioner fails or refuses to present other evidence, the dismissal will stand for lack of prosecution. However, va.Alla.do v. Diokno, it was held that the Judge may dismiss the case outright for lack of probable cause.
Determination of Probable Cause for Issuance of Warrant of Arrest

The foregoing principles refer to the findings of the prosecutor for the purpose of filing the case in court which should be distinguished from the determination by the judge of probable cause foi the issuance of a warrant of arrest. Thus, although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties, which in turn gives his report the presumption of accuracy, nothing less than

No Need of Conducting Hearing For Judicial determination of

132

Probabe Cause to Issue Warrant Under the present rule the Rule does not require case to be set for hearing to determine probable cause for the issuance of a warrant for the arrest of the accused. If the judge finds probable cause on the basis thereof, he shall issue a warrant of arrest or, if the accused has already been arrested, a commitment order otherwise. He may either dismiss the case outright or to aid him in determining the existence of probable cause; require additional evidence within then (10) days from notice should the Judge still find no probable cause, he shall dismiss the case. The Court in Government of the United States of America v. Hon. Guillermo G. Purganan, held that: To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination under oath or affirmation of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause." In Webb v. De Leon, the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: "Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by sub stantial evidence." At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their

witnesses. Validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage if he so desires in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions.
The Accused is not, however, Prohibited from Filing a Motion to Dismiss on the Ground of Lack of Probable Cause

In view, however, of the expanded cases, which require preliminary investigation even of cases that are not cognizable by the Regional Trial Court as now defined in section 1 hereof, the present section was accordingly amended. Under the amendment, a complaint or information may only be filed after an inquest conducted in accordance with existing rules; Provided, however, That in the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. The former rule allows a direct filing in court in cases of lawful arrest without a warrant except in Metropolitan Manila and chartered cities, without an inquest. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. Under the former rule, the waiver may be made with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Under the amended rule, the waiver may be made only IN THE PRESENCE OF HIS COUNSEL pursuant to Section 2 ofRA. No. 7438.2 The former rule provides that if a lawyer is unavailable, a responsible person of his own choice would be sufficient. This was, however deleted in view of the provisions of section 2 of R.A. No. 7438 limiting the assistance to that of a lawyer, which in this case appears to be restrictive. If the case has been filed in court without a preliminary investigation the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his DEFENSE AS provided in this Rule. The request for preliminary investigation should be made before plea, otherwise the right to ask for a preliminary investigation shall be deemed waived.

It has been held that the absence of probable cause for the immediate issuance of a warrant of arrest is not a ground for the quashal of the information but is a ground for the dismissal of the case under Section 6 (now Sec. 5), Rule 112 which is without prejudice. The trial court is mandated to immediately dismiss the case upon finding that no probable cause exists to issue a warrant of arrest and after having evaluated the resolution of the fiscal and supporting information. If the Court may motu propio dismiss the case for lack of probable cause then it could do so when a motion to dismiss on such ground is filed as was done va.Allado u. Diokno. In cases governed by the Rule on Summary Procedure, the court may likewise dismiss the case outright, for patently being without basis or merit and order the release of the accused if in custody. SEC. 6. When accused lawfully arrested without warrant
COMMENT:

NOTES The rule was originally taken from section 15 of Rule 112, "where the accused is detained without a warrant for his arrest" which in turn was taken from Republic Act No. 409, as amended by Republic Act No. 1201, which reads:
"In all cases brought to the Office of the City Fiscal involving crimes cognizable by the Court of First Instance, where the accused is not already in the legal custody of the police, no complaint or information shall be filed without first giving the accused a chance to be heard in a preliminary investigation, where such accused can be subpoenaed and

THE FORMER RULE EMBRACED ONLY LAWFUL ARRESTS FOR CRIMES COGNIZABLE BY THE REGIONAL TRIAL COURT.

133

appears before the investigating fiscal, with the right to cross-examine the complainant and his witnesses: Provided, That when the accused is detained, he may ask for a preliminary investigation, but he must sign a waiver of the provisions of Article One Hundred Twenty-five of the Revised Penal Code, as amended: And provided, further, That if the case has already been filed in court, he may ask for a reinvestigation thereof later on with the same right to cross-examine the witnesses against him: Provided, finally, That notwithstanding such waiver, the said investigation must be terminated within seven days from its inception."

The rule as now modified refers to all persons lawfully arrested without a warrant for an offense which requires a preliminary investigation. There are two (2) situations contemplated under this rule: First, is when the person is lawfully arrested without a warrant for an offense which requires a preliminary investigation, and no complaint or information has yet been filed, in which case, he may ask for a preliminary investigation by signing a waiver of the provisions of Article 125 of the Revised Penal Code. To prevent pro longed detention pending preliminary investigation, the accused may apply for bail even if no information have been filed. In any event the preliminary investigation must be terminated within fifteen (15) days from its inception. Second, when a person is lawfully arrested without a warrant for an offense which requires a preliminary investigation and the complaint or information was filed by the offended party, peace officer or fiscal without a preliminary investigation in which case the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in the Rule. The Inquest Inquest is an informal and summary investigation conducted by a public prosecutor in criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. To safeguard the rights of the accused who was arrested without a warrant, Department Circular No. 61, dated September 21, 1993, requires the arresting officer to bring the arrestee before the inquest fiscal who shall determine whether or not said person should remain in custody and correspondingly be charged in court or that he be released either for lack of evidence or further investigation.

The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. The rule is not applicable if the person is not lawfully arrested without a warrant It was thus held in Go v. Court of Appeals, Larranaga v. Court of Appeals: "WHEN THE POLICE FILED A COMPLAINT FOR FRUSTRATED HOMICIDE WITH THE PROSECUTOR, THE LATTER SHOULD HAVE IMMEDIATELY SCHEDULED A PRELIMINARY INVESTIGATION TO DETERMINE WHETHER THERE WAS PROBABLE CAUSE FOR CHARGING PETITIONER IN COURT FOR THE KILLING OFELDON MAGUAN.
Instead, the Prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation."

similar rule held that as the accused in that case did no exercise his right within the five-day period, his motion for reinvestigation was denied. The case should be distinguished from Rolito Go v. Court o, Appeals (supra). In said case, Go not only asked for preliminary investigation on the very day the information was filed, but he is also clearly entitled to a preliminary investigation. Section 7, Rule 112 is clearly not applicable because Go was not lawfully arrested, the right to demand preliminary investigation was subject to the condition that he should claim it seasonably. He did not do so. Accordingly, he effectively waived his right to a preliminary investigation
The Right To Bail Pending Preliminary Investigation

It may be noted that under Section 7 (now Sec. 6) of Rule 112, i person lawfully arrested may post bail before the filing of the information or even after its filing without waiving his right to preliminary investigation, provided that he asks for a preliminary investigation by the proper officer within the period fixed in the said rule." Waiver of Illegal Arrest The accused may be estopped to question the illegality of the arrest by entering a plea of not guilty without moving to quash th information on such ground. Thus, any irregularity attendant to an arrest was cured when accused voluntarily submitted himself to the jurisdiction of the Court by entering a plea of not guilty "and [by] participating in the trial." Where the Warrant of Arrest is void for want of probable cause, the appropriate remedy is certiorari and prohibition with prayer for the issuance of a TRO rather than actively participate in the proceeding. SEC. 7. Records SEC. 8. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure
Warrant of Arrest in Cases which Do Not Require Preliminary Investigation

However, since an information had already been filed and the absence of a preliminary investigation does not impair the validity of the information or affect the jurisdiction of the court, the Supreme Court instead of ordering the dismissal of the case directed the fiscal to conduct a preliminary investigation and allowed the accused in the meantime to post bail."
Period to File Motion For Preliminary InvestigatioN

The period for filing a motion for preliminary investigation after an information has been filed against an accused who was arrested without a warrant has been characterized as mandatory by the court. In People v. Figueroa, the Supreme Court applied a substantially

134

In cases which falls under the original jurisdiction of the municipal trial court, which does not require a preliminary investigation nor does it fall under the Rules on Summary Procedure, the case may either be filed in court by a prosecutor or directly filed in court by the offended party. The amended rule in the issuance of warrants of arrest by the Municipal Trial Courts for actions filed in the exercise of its original Jurisdiction provides for two distinct situations. The case may be filed directly in the municipal trial court or by the prosecutor in Metro Manila or other chartered cities. If the complaint is filed with the PROSECUTOR for offenses which do not require a preliminary investigation the procedure outlined in Section 3(a) of this Rule shall be observed. Under Section 3(a), the complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents RELIED UPON BY HIM TO ESTABLISH PROBABLE CAUSE, in such manner of copies as there are respondent, plus two (2) copies for the official file. The said affidavits shall be sworn to before any PROSECUTOR, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. The prosecutor shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant WITHIN TEN (10) DAYS FROM ITS FILING. In other words, he may either dismiss the case or file it in court without any further investigation since this refers to cases that are not entitled to preliminary investigation. The Prosecutor has no authority to issue a warrant of arrest. It is only the court that may do so. A case cognizable by the Municipal Trial Court may, however, be filed in court directly by the complainant or by the prosecutor, without preliminary investigation. Options of the Judge The Judge has three (3) options in the issuance of a warrant of arrest:

A.

Where filed directly with the municipal trial court. if the complaint or information is filed directly with the municipal trial court. The procedure in section 3(a) of this rule shall be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest or a commitment order if the accused had already been arrested, after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, or

supporting evidence of the complainant or if on the basis thereof he finds no probable cause he may require the submission of additional evidence to aid him in arriving at a conclusion as to the existence of probable cause. This is in line with the pragmatic interpretation by the Supreme Court that under the Constitution the judge does not have to conduct a personal examination of the witnesses but that for purposes of determining probable cause for the issuance of a warrant of arrest, the Judge must personally evaluate the prosecutor's report, the evidence adduced during the preliminary investigation. These jurisprudence are now capsulized in the present rule, where the judge needs only to evaluate the report of the Prosecutor and the supporting documents. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Meaning of Personal Examination Where the respondent judge personally examined the witnesses for the prosecution adopting as his own personal examination the questions asked by the investigating officer as appearing in the written statements, which he read over again to the witnesses together with the answers given therein, asking the witnesses whether said answers were theirs, and whether the same answers were true, to which the witnesses answered in the affirmative, the court considered this as sufficient. Republic Act No. 3838 does not prohibit the municipal judge from adopting the questions asked by a previous investigator. Meaning of Examination under Oath The finding of the trial court that the complaint was "supported by statements of the witnesses under oath" and the record also shows the sworn statements of the witnesses to have been subscribed and sworn to before respondent Judge, satisfies the second requirement. Meaning of Searching Questions and Answers The term "searching questions and answers" means only, taking into consideration the purpose of the preliminary examination which is to determine "whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial," such questions as have tendency to show the commission of a crime and the perpetrator thereof.

B.

He may personally evaluate the affidavits a nd supporting evidence attached to the complaint or information if on the basis thereof he finds no probable cause, he may require the submission of additional evidence to aid him in determining the existence of probable cause. However, instead of issuing a warrant of arrest, the court may issue summons if it is satisfied that there is no necessity for placing the accused under immediate custody. No warrant of arrest shall issue for offenses which fall under the original jurisdiction of the court if such warrant had already been issued during the preliminary investigation by the same court pursuant to section 6(b) [now sec. 5] of this rule the court shall instead proceed to hear the case in the exercise of its original jurisdiction. No warrant of arrest may be also be issued for cases covered by the Revised Rule on Summary Procedure. The No Necessity Rule

C.

The "necessity" rule restores the 1985 amendment which was deleted in 1988. The statement that the judge determines whether there is need for placing the accused under custody in order not to frustrate the ends of justice only applies to warrants of arrest issued by the Municipal Judge during a preliminary investigation. Discretion to Dispense with Searching Questions The foregoing provisions have provided an alternative mode of determining probable cause in cases filed for trial by allowing the municipal judge to personally evaluate the affidavits and

135

What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time and place of its commission, the possible motives for its commission; the subject, his age, education, status, financial and social circumstances, his attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and social circumstances, characteristics, etc. the points that are the subject of inquiry may differ from case to case. The questions, therefore, must to a great degree depend upon the judge making the investigation. At any rate, the court a quo found that respondent Judge was "satisfied that the questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his searching questions and answers as required by law," so the respondent Judge adopted them." Preliminary Examination May be Ex-parte Preliminary examination is not an essential part of due process of law. Preliminary examination may be conducted by the municipal judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence, of the accused. There is no need of warrant or bail in cases covered by the Rule on Summary Procedure. RULE 113 ARREST SECTION 1. Definition of arrest SEC. 2. Arrest; how made What Constitutes Arrest The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested. Also, the person making the arrest must be acting under some real or pretended legal authority for taking the person into custody. It is not necessary, however, that there be an application of actual force, or manual touching of the body, or physical restraint which may be visible to the eye, or a formal declaration

of arrest. It is sufficient if the person arrested understands that he is in the power of the one arresting and submits in consequence. However, in all cases in which there is no manual touching or seizure or any resistance, the intentions of the parties to the transaction are very important; there must have been an intent an the part of one of them to arrest the other, and an intent on the part of the other to submit, under the belief and impression that submission was necessary. There can be no arrest when the person sought to be arrested is not conscious of any restraint of his liberty. But the mere submission of a person whether pretended or actual, will not constitute an arrest, if he is not at the time actually within the power of the officer. If an officer having authority to make an arrest lays his hand upon the person of the prisoner, however lightly, with the intention of taking him into custody, there is an arrest, even though he has not succeeded in stopping or holding him even for an instant. An arrest signifies restraint on person, depriving one of his own will and liberty, binding him to become obedient to the will of the law.

life which he has by such notoriety already forfeited. This Court may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise, this court cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise, this Court would offer a premium to crime in the shelter of official actuation. Thus, it may be true that Anseimo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community but these facts alone constitute no justification for killing him when, in effecting his arrest, he offers no resistance, or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts."

No Unnecessary or Unreasonable Force shall be Used in Making Arrest

Force Necessary to Overcome Actual Resistance to Arrest In People v. Delima, a prisoner escaped from jail. He was found armed with a pointed piece of bamboo in the shape of a lance. Accused policeman asked him to surrender but prisoner answered with a stroke of his lance. The policeman fired his revolver but did not hit the criminal who ran away. He pursued, firing and killing the prisoner. Held: The killing was done in the performance of a duty. The deceased was under the obligation to surrender, and had no right, after evading service of his sentence, to commit assault and disobe dience with a weapon in the hand, which compelled the policeman to resort to extreme means, which, although it proved to be fatal, was justified by circumstances.

Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm, yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise. The doctrine is restated in the Rules of Court thus: "No violence or unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest. Arrest of Notorious Criminal The court noted in one case: "It is suggested that a notorious criminal 'must be taken by storm' without regard to his right to

In another case, the deceased was creating a disturbance when the defendant, a policeman, attempted to arrest him and take him to the presidensia. The deceased resisted the arrest by striking the accused with a calicut whereupon the latter shot him with his revolver causing

136

the former's death. The Court held: "Although a police officer may employ force to overcome active resistance to an arrest, it is not reasonably necessary to kill his assailant" to repel an attack with a calicut, and only an incomplete defense is made out. A police officer is not justified in using unnecessary force in effecting arrest or in treating with wanton violence the arrested person or in resorting to dangerous means when the arrest could be affected otherwise. Police Officer Must Stand His Ground
In U.S. v. Mojica One of the Constabulary soldiers, the deceased, was placed under arrest. He resisted and finally succeeded in freeing himself. He then struck a policeman with the fist, drew a mess kit knife and brandishing it attacked the accused, another policeman. The accused retreated a step or two, drew his revolver and fired killing the soldier. Held: A police officer, in the performance of his duty, must stand his ground and cannot, like a private individual, take refuge in flight, his duty requires him to overcome his opponent. The force requires him to overcome his opponent. The force which he may exert therefore differ somewhat from that which may ordinarily be offered in self-defense. Bearing this in mind, we do not think that the appellant in using his revolver against the deceased can be said to have employed unnecessary force. The deceased attacked him with a deadly weapon; he might perhaps, have saved himself by running away, but this his duty forbade. Was he to allow himself to be stabbed before using his arms? It may, perhaps, be argued that the appellant might have used his club, but a policeman's club is not a very effective weapon as against a drawn knife and a police officer is not required to afford a person attacking him the opportunity for a fair and equal struggle.

against him, unless he is authorized by the court to be released on bail or on recognizance. The prisoner whether under preventive detention or serving fail sentence can not practice their profession nor engage in any business or occupation or hold office, elective or appointee, while in detention. This is a necessary consequence of arrest and detention. SEC. 4. Execution of Warrant The rule does not require a return of the warrant of arrest but only a report to the judge who issued the warrant and, in case of the officer's failure to execute the same, shall state the reasons therefor. A warrant of arrest does not become stale or functus oficio unlike a search warrant which is valid only for ten days. A warrant of arrest remains valid until arrest is effected or the warrant lifted. SEC. 5. Arrest without warrant; when Lawful

before been committed, and the phrase "he has reasonable ground to believe" was changed to "he has personal knowledge of facts" to minimize arrests based on mere suspicion or hearsay. Controversy arose in the interpretation of what are those fact which must be within the personal knowledge of the person effecting the arrest? Otherwise stated, what are the facts indicating that the person to be arrested has committed the crime. The restrictive interpretation is that the facts constituting the crime must be personally known by the person effecting the arrest, hence, there are cases which excluded even an eyewitness identification allegedly because of lack of personal knowledge by the arresting officer. The Revised Rules on Criminal Procedure As revised, the present rule reads: "(B) WHEN AN OFFENSE HAS JUST BEEN COMMITTED AND HE HAS PROBABLE CAUSE TO BELIEVE BASED ON PERSONAL KNOWLEDGE OF FACTS OR CIRCUMSTANCES THAT THE PERSON TO BE ARRESTED HAS COMMITTED IT." The present rule removed the requirement that an offense must have in fact been committed and clarified that probable cause to believe based on personal knowledge of facts refer to "facts and circumstances" that the person to be arrested has committed it. Such knowledge would be sufficient to justify a warrantless arrest for an offense that has just been committed. The amendment is in accord with Supreme Court decisions that the indubitable existence of a crime is not necessary to justify a warrantless arrest and that 'personal knowledge of facts,' in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled "with good faith on the part of the peace officers making the arrest. The only difference is that in flagrante arrests, under subpar. (a), the facts constituting probable cause occur in the presence

Amendments to the Rule, Explained a. b. Former Rule (1964) Sec. 6, Rule 113 When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; and

SEC. 3. Duty of Arresting Officer

COMMENT:

1985 AMENDMENT b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and Reason For 1985 Amendment In 1985, the rule, which was transposed to section 5 of Rule 113, introduced a significant change. Subsection (b) of section 5, Rule 113 inserted the word "just"

As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under custody of the law. He is placed in actual restraint to liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case

137

of the arresting person, while in hot pursuit, knowledge of the facts occurred after the commission of the crime. Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person is guilty of the offense with which he is charged. It, likewise, refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.
Personal Knowledge of Facts Constituting Probable Cause

The law expressly allowing arrests without a warrant is found in Section 5, Rule 113 of the Rules of Court. A warrantless arrest under circumstances contemplated under Sec. 5(a) has been denominated as one "in flagrante delicto" while that under Section 5(b) has been described as a "hot pursuit arrest." b. A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case is to file a complaint with the city fiscal in cities, or directly with the justice of the peace courts (now municipal courts) in municipalities and other political subdivisions. If the city fiscal has no authority, and he has not, to order the arrest of a person charged with having committed a public offense even if he finds, after due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other persons even though after investigation, he becomes convinced that the accused is guilty of the offense charged. c. Section 2463 of Revised Administrative Code recognized as basis for warrantless arrest was repealed by R.A. No. 409 otherwise known as the Charter of Manila. Exception The rules recognize and allow arrests without warrant and a search and seizure without warrant incident to a lawful arrest whether the arrest is with or without a warrant. As stated in People v. Kaqui Malasugui, the Constitutional precepts do not prohibit arrests, searches and seizures without judicial warrant, but only those that are unreasonable. To hold that no criminal can in any case be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances. It is the duty of a policeman to arrest those who disturb an assemblage by words and blows constituting a breach of the peace and the defendant who requested the arrest and the

officer who made it did not incur criminal responsibility. Municipal councilors and lieutenants or "barrios" are charged with duty of maintaining order, and preserving and protecting life and property in the "barrios" specially placed under their direction in conformity with Sec. 37 of Act No. 82, and are therefore clothed with authority to make arrests without warrants, not inferior to those powers usually conferred upon peace officers, more especially those of peace officers known as "constables" in American and English law. Thus, the Lieutenant of a "barrio" was held to be within lawful performance of his duties when he attempted to arrest a person caught in flagrante delicto conducting a clandestine cockpit. Any officer charged with the preservation of the public peace may arrest without a warrant any person who is committing, or has committed, a breach of peace in his presence. Source of Rule on Warrantless Arrest a. A warrantless arrest in this jurisdiction as an exception to the constitutional prohibition against unreasonable search and seizure was originally governed by Rules 27, 28, 29 and 30 of the Provisional Law for the Application of the Penal Code, which authorized among others the arrest of persons when there is reasonable ground to believe him guilty of some offense, provided: First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to crime had been committed. Second. That the authority or agent had sufficient reason to believe that the person arrested participated in the commission of such unlawful act or crime. The Supreme Court in the 1909 case U.S. v. Fortaleza (supra), likewise pointed to section 37 of Act No. 183 (Charter of Manila) which designated customs officials, including police officers or peace officers who may pursue and arrest without warrant, any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit any crime or breach of the peace; or may arrest, or cause to be arrested without warrant, any offender, when the offense is committed in the presence of a peace officer or within his view. b. The extent of a peace officers' arrest powers in the Philippines without warrant and the limitations therein was upheld by the Supreme Court in the 1917 case of U.S. v.

In its resolution denying the Motion for Reconsideration in the Umil v. Ramos cases, the majority opinion explained the meaning of Personal Knowledge of Facts (under section 5[b]), as follows:
"It has been ruled that 'personal knowledge of facts,' in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion.

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled "with good faith on the part of the peace officers making the arrest." The foregoing standards were again adopted in warrantless "hot pursuit" arrest in the 1999 case of People v. Doria. As observed by an eminent author there does not exist (and never will exist) a "bright line" marking the exact boundaries of probable cause, so that a warrant should be upheld when the initial judgment of the magistrate could considerably have gone either way.
General Principles; Warrantless Arrest Not Allowed

a.

As a general rule, no peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law.

138

Santos and as stated in the Legislature in the Charter of the City of Manila and (2) the Administrative Code and (3) Sec. 2258, edition of 1917 which enjoins Municipal policemen to "exercise vigilance in the prevention of public offenses. The decision, likewise cited the common law rule on the arrest of suspicious night walkers. c. In the 1939 case of People v. Ancheta the Supreme Court pointed to section 848 of the Administrative Code and Article 124 of the Revised Penal Code as allowing members of the Constabulary or policemen to make arrests without warrant, not only when a crime is being committed or is about to be committed in their presence, but also when they reasonably believe or have grounds to suspect that a crime has been committed and that it has been committed precisely by the person arrested. Under Commonwealth Act No. 181 (Sec. 3), an arrest without warrant may be made by agents of the Department of Justice (i.e., the Chief of the Division of Investigation and his subordinates) for a crime which has been committed in their presence, or within their view, or in cases where the person making the arrests has reasonable grounds to strongly believe that the person so arrested is guilty of such crime and where there is likelihood of the person escaping before a legal warrant can be obtained for his arrest, but the person arrested shall be immediately taken before the competent Court of Justice. Under this law members of the investigation staff of the Bureau of Investigation shall be peace officers and as such have the power to make arrests, searches and seizure in accordance with existing laws and rules.
Earlier Rulings (Before 1940): Arrest Based on Suspicion, Were Held Valid

in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. In this case, as the priest engaged in a quarrel was down and was being maltreated, he shouted "police! police!" and the police heard this and attempted to arrest appellant, he resisted arrest and struck the police. Appellant was held guilty of assault upon an agent of a person in authority. d. U.S. u. Batallones A peace officer can justify an arrest without warrant if there is reasonable ground of suspicion tending to show that a person committed or is about to commit any crime 01 breach of the peace, and if he acts in good faith. Under such conditions, even if the suspected person is later found to be innocent, the peace officer is not liable for coercion or arbitrary detention. U.S. v. Sanchez The legality of the detention does not depend upon the fact of the crime, but upon the nature of the deed, where such characterization may reasonably be inferred by the officer or functionary to whom the law at that moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. One of the duties of the police is to arrest lawbreakers in order to place them at the disposal of the judicial or executive authorities upon whom devolves the duty to investigate the act constituting the violation or to prosecute and secure the punishment thereof. One of the means conducing to these ends being the identification of the person of the alleged criminal or lawbreaker, the duty that directly devolves upon the police to make the arrests or detentions for the purposes of such investigation cannot be questioned, (supra) Hearing the screeching of tires followed by a thud and seeing the sideswiped victim is a crime committed in one's presence to justify a warrantless arrest. f. In a case of arbitrary detention, the Supreme Court held that there is No need of fact of commission of offense to justify the detention. Probable cause for an arrest without warrant is allowed where there is reasonable ground of suspicion supported by circumstances sufficiently strong in themselves as to warrant a reasonable man in believing the accused to be guilty. No crime was committed here. The persons merely entered an uninhabited camarin but g.

their arrest was justified to prevent the commission of a crime. Common Law rule applied. Justice Malcolm stated that:
"One should, however, not expect too much of an ordinary policeman. He is not presumed to exercise the subtle reasoning of a judicial officer. Often he has no opportunity to make proper investigation but must act in haste on his own belief to prevent the escape of the criminal. To err is human. Even the most conscientious officer must at times be misled. If, therefore, under trying circumstances and in a zealous effort to obey the orders of his superior officer and to enforce the law, a peace officer makes a mere mistake in good faith, he should be exculpated. Otherwise, the courts will put a premium on crime and will terrorize peace officers through a fear of themselves violating the law."

d.

e.

In People v. Kagui Malasugu a warrantless arrest for a crime committed not in arresting officer's presence but made on the same day was justified. In other words, such arrest or detention does not necessarily presume that really a crime had been committed. It is sufficient that there was ample ground to believe honestly and reasonably that the cause of the surrounding phenomena at the time was a crime that has just been or was about to be committed and that the person detained was responsible for it. People v. Ancheta, reiterated the ruling laid down in U.S. v. Santosand adopted that of a decision of the Supreme Court of Spain of November 5, 1892. Indubitable Existence of Crime Not Required

h.

The bases of the rulings are Rules 27 and 28, Provisional Rules for Application of Penal Code, Revised Administrative Code and Section 37 Charter of Manila which allows warrantless arrest based on reasonable ground of belief. The following cases are illustrative: a. b. c. U.S. u. Burgueta warrantless arrest of accused while quarreling in public with Municipal Councilor. U.S. v. Fortaleza upholding warrantless arrest of operator by barrio lieutenant of a clandestine, cockpit operation. U.S. u. Samonte - Meaning of committed in one's presence Seeing or Hearing at a Distance. An offense is committed

Thus, under the pre-1940 rulings, a lawful warrantless arrest does not require the indubitable existence of a crime. It is sufficient if the officer effecting the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristic of a crime and that the person sought to be detained has participated therein, a warrantless arrest was made on the basis of information given by one of the accused naming his companions who, on the basis thereof, was arrested without a warrant. The arrest was considered as lawful.

139

Restrictions on Warrantless Arrest In Sayo, et al. v. Chief of Police, the court, however, held that: "THE LAW RESTRICTS THE CASES WHEN A PEACE OFFICER MAY ARREST WITHOUT A WARRANT; THE SO-CALLED COMMON LAW RULE RELATING TO OTHER CASES OF ARREST WITHOUT WARRANT HAS NO APPLICATION IN THIS JURISDICTION, AND EXCEPT AS AUTHORIZED BY SUCH STATUTE, AN ARREST WITHOUT WARRANT IS ILLEGAL. STATUTORY CONSTRUCTIONS EXTENDING THE RIGHT TO MAKE ARRESTS WITHOUT A WARRANT BEYOND THE CASES PROVIDED BY LAW IS DEROGATORY OF THE RIGHT OF THE PEOPLE'S LIBERTY" Present Rule on Warrantless Arrest The law expressly allowing arrests without a warrant is found in Section 5, Rule 113 of the Rules of Court. A warrantless arrest under circumstances contemplated under Sec. 5(a) has been denominated as one "in flagrante delicto" while that under Sec. 5(b) has been described as a "hot pursuit arrest." The foregoing rule specifies the instances when warrantless arrests may be made by a peace officer or a private person. The old Rule was modified as follows: (a) the phrase "about to commit an offense" was changed to "is attempting to commit an offense," because the old phraseology implied that no offense had as yet been committed, (b) the word "just" was inserted before "been committed," and the phrase "he has reasonable ground to believe" was changed to "he has personal knowledge of facts" to minimize arrests based on mere suspicion or hearsay.44 The 1940 Rules of Court (effective July 1, 1940), provided for warrantless arrest in section 6 of Rule 109 thereof. These were taken from the Provisional Law for the application of the Penal Code and sections 21 and 22 of the American Law Institute 45 with one significant change. The warrantless arrest under subsection (b) requires as a condition thereof that an "offense has in fact" been committed. In 1985 rule, which was transposed to section 5 of Rule 113, introduced another significant change. Subsection (b) of section 5, Rule 113 inserted the word "just" before been committed, and the phrase "he has reasonable ground to believe" was changed to "he has personal knowledge of facts" to minimize arrests

based on mere suspicion or hearsay.46 Application of Present Rule Despite the 1985 amendments on warrantless arrest, the court appears to have returned to pre-amendment doctrines in the application of the rule.
In Flagrante Arrests (For crimes committed in presence of arresting person)

The arrest cannot be justified by discovery thereafter that the person was committing a crime. Knowledge Must Be At Time of, Not After, Arrest An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbance caused thereby and proceeds at once to the scene thereof, or the offense is continuing; or has not been consummated at the time when the arrest is made. Knowledge of the commission of the crime in one's presence must precede the arrest. The law requires that there be first a lawful arrest before a search can be made the process cannot be reversed. In other words, the acts must be known to the officer at the time of their commission through his sensory perceptions. Thus, there could have been no in flagrante delicto arrest preceding the search, in light of the lack of an overt physical act on the part of accused-appellant that he had committed a crime, was committing a crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has been held that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Hence, in People u. Aminudin, we ruled that "the accusedappellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension." The reliance of the prosecution in People v. Tangliben, to justify the police's actions is misplaced. In the said case, based on the information supplied by informers,

Sec. 5(a), Rule 113, Sec. 12, Rule 126 arrest for crimes In Presence of arresting officer. WHEN IN HIS PRESENCE, THE PERSON TO BE ARRESTED HAS COMMITTED, IS ACTUALLY COMMITTING, IS OR ATTEMPTING TO COMMIT A CRIME. Essential Requisites Reliable information alone, absent any overt act indicative of a felonious enterprise in the presence of and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. To constitute probable cause, two requisites must concur: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. A warrantless arrest is not justified by the mere fact that a crime is being committed in one's presence. The arresting officer must have personal knowledge of such commission. The knowledge must precede the arrest.

140

police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaged in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded latel on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night ol his arrest. In the instant case, the apprehending policemen already hac prior knowledge from the very same informant of accusedappellant's activities. The police operatives cannot feign ignorance of the alleged ille gal activities of accused-appellant. Considering that the identity address and activities of the suspected culprit was already ascertained two years previous to the actual arrest, there was indeed no reason why the police officers could not have obtained a judicial warrant before arresting accused-appellant and searching his person Whatever information their civilian asset relayed to them hours be fore accused-appellant's arrest was not a product of an "on-the-spot tip which may excuse them from obtaining a warrant of arrest Accordingly, the arresting team's contention that their arrest of accused-appellant was a product of an "on-the-spot" tip is untenable In Randolph David v. Gloria Macapagal-Arroyo, the Court stressed:
The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.

ire established: first, he was arrested without warrant; second, the PNP operatives arrested him on the basis ofPP 1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, Dhotographed and booked like a criminal suspect; fourth, he was created brusquely by policemen who "held his head and tried to push him inside an unmarked car; fifth, he was charged with Violation of Satas Pambansa Bilang Big. 880 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually released for insufficiency of evidence. Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless arrest. During the inquest for the charges of inciting to sedition and violation of B.P. Big. 880, all that the arresting officers could invoke was their observation that some rallyists were wearing tshirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally. Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the subject tshirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of B.P. Big. 880 as it was not even known whether petitioner David was the leader of the rally. ILLUSTRATIVE CASES:
Meaning of Personal Knowledge Based on Sensory Perceptions People v. Claudio Pat. Obina a member of the NARCOTICS UNIT, was on board the Victory Liner, seated on the second seat at the back. While he was thus seated, suspect Anita Claudio boarded the same bus and took the seat in front of him after putting a bag which she was carrying at the back of the seat of Obina. The bag placed by suspect behind his seat was a woven buri bag made of plastic containing her bag behind Pat. Obina's seat aroused his suspicion and made him felt (sick) nervous. With the feeling that there was something unusual, he had the urge to search the woven plastic bag. But it was only at San Fernando, Pampanga when he was able to go to the bag. He inserted one of his fingers in a plastic bag located at the bottom of the woven bag and smelt marijuana. The plastic woven bag appearing to contain camote tops on the top has a big bundle of plastic marijuana at the bottom. He could recognize the smell of marijuana because he was assigned at that time at the ANTI-NARCOTICS UNIT. He did not, however, do anything after he discovered that there was marijuana inside the plastic bag of the accused until they reached Olongapo City and the accused alighted from the bus in front of the Caltex

Gasoline Station in Sta. Rita. Right after the accused alighted from the bus, policeman Obina intercepted her and showed her his ID identifying himself as a policeman and told her he will search her bag because of the suspicion that she was carrying marijuana inside said bag. In reply, accused told him, "Please go with me, let us settle this at home." HELD: Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obina did not need a warrant to arrest Claudio as the latter was caught inflagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful.

PEOPLE V. BURGOS
Strict Interpretation Personal Knowledge Interpreted. The need to strictly adhere to the rule was stressed by Justice Hugo Gutierrez, Jr., in no uncertain terms in People v. Burgos In this case Cesar Masamlok surrendered to the PC on May 12, 1982 stating that, he was forcibly recruited by Ruben Burgos a member of the NPA, threatening him with the use of firearm against his life, if he refused. A joint team of members of the PC-INP was dispatched the following day to arrest Ruben Burgos and they were able to locate and arrest him while he was plowing his field. Interrogation was made in the house of the accused. He first denied possession of the firearm but later, upon further questioning, the team with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. After the recovery of the firearm, the accused likewise pointed to the subversive documents which the PC found kept in a stock pile ofcogon, at a distance of three meters apart from his house. Accused when confronted with the firearm readily admitted the same as issued to him by the team leader of a sparrow unit. The lower court justified the arrest, search and seizure without warrant under Section 6-A, Rule 113 of the Rules of Court. The Supreme Court held the arrest as unlawful. Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view." There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife. At the time he was arrested, he was not committing a crime but was plowing his field. If an arrest without warrant is unlawful at the moment it is made, generally, nothing that is discovered afterwards cannot make it lawful ARREST UNLAWFUL WHERE WAS NO URGENCY AND THERE IS

In the Brief Account submitted by petitioner David, certain facts

141

OPPORTUNITY TO OBTAIN WARRANT In People v. Aminnudin, the PC officers had earlier received a tip from one of their informers that the accused was on board a vessel bound for Iloilo City and was carrying marijuana. He was identified by name. Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. HELD: Contrary to the averments of the government, the accusedappellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. The present case presented no urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC Lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." The accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Even expediency could not be invoked to dispense with the obtention of the warrant. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible.

Aminnudin was reiterated in People v. Encinada, under substantially identical factual setting. To the trial court's justification that there was no time to obtain a search warrant because the information was received at 4:00 o'clock in the afternoon, and that the ship was to dock at 7:00 a.m., the court pointed to Administrative Order No. 12 which allows applications for search warrants even after office hours. COMPARE: Where there was No Opportunity to Obtain Warrant
In People v. Saycon A warrantless arrest, search and seizure based on information from a NARCOM agent that a suspected Shabu courier was arriving at Dumaguete City on board a vessel and who was pointed to by another agent was justified although the suspect was not perceptively committing a crime but (like Aminnudin) merely alighted from the vessel. The search and seizure was justified under the principle justifying the search of moving vehicles as there was no time to obtain a warrant. The case was distinguished from Aminnudin where there was time to obtain a search warrant. The record shows that the NARCOM officers were uncertain as to the precise date and time appellant would arrive from Manila; all they knew is that he would be taking a boat from Manila to Dumaguete on the morning of 8 July 1992. More specific details were received earlier in the morning that the appellant would be arriving the same morning. Clearly, the agents had to act quickly but there was not enough time to obtain a warrant of arrest or search warrant.

justify an arrest without a warrant. Thus, to justify the arrest without warrant, under Section 6 (a), it is not enough that a crime is actually being committed in his presence. The person or peace officer making the arrest must be personally aware of the commission of such crime." People v. Mengote The police received a telephone call that there were three suspicious looking persons at the corner of Juan Luna and North Bay Boulevard at Tondo. The police responded and saw two men "looking from side to side," one of whom was holding his abdomen. The police approached them and identified themselves as policemen whereupon the two tried to ran away. The other lawmen surrounded them and searched them and one of them was found with an unlicensed firearm and live ammunition. Was the search and seizure legal? Held: It is illegal. At the time of the arrest, the appellant was merely looking from side to side and holding his abdomen. This is not a crime. The police did not know then what offense if at all had been committed and neither were they aware of the participation therein of the appellant, xxx As for the illegal possession of firearm, the police discovered this only after he had been searched and investigated. The Supreme Court cited the cases of Burgos, Alih Castro and Aminnudin holding that it would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomachache or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting to commit it. People v. Rodriguez The arrest, search and seizure was held illegal in view of the admission by the police that he did not actually see the appellants transacting but only saw them acting suspiciously. The court held that the cardinal rule is that no person may be subjected by the police to a search of his house, body or personal belonging except by virtue of a search warrant or on the occasion of a lawful arrest. If a person is searched without a warrant, or under circum stances other than those justifying an arrest without warrant in accordance with law, merely on suspicion that he is engaged in some felonious enterprise, and in order to discover if he has indeed committed a crime, it is not only the arrest which is illegal but also, the search on the occasion thereof as being the fruit of the poisonous tree. In that event, any evidence taken, even if confirmatory of the initial suspicion, is inadmissible "for any purpose in any proceeding.

Mere suspicion Insufficient WHERE THE ACCUSED CARRYING A BURI BAG WAS ACTING SUSPICIOUSLY AND WAS FOUND IN POSSESSION OF A FIREARM AND EXPLOSIVE, THE SOLICITOR GENERAL ARGUED THAT WHEN THE TWO POLICEMEN APPROACHED THE PETITIONER, HE WAS ACTUALLY COMMITTING OR HAD JUST, COMMITTED THE OFFENSE OF ILLEGAL POSSESSION OF FIREARMS AND AMMUNITION IN THE PRESENCE OF POLICE OFFICERS AND CONSEQUENTLY THE SEARCH AND SEIZURE OF THE CONTRABAND WAS INCIDENTAL TO THE LAWFUL ARREST IN ACCORDANCE WITH SECTION 12, RULE 126 OF THE RULES ON CRIMINAL PROCEDURE.
The Supreme Court held: "At the time the peace officers in this case identified themselves and apprehended the petitioner as he attempted to flee they did not know that he had committed, or was actually committing the offense of illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not

COMPARE:

Arrest Based on Suspicion; Where there is Urgency

142

search on their persons were incidental to their valid warrantless arrest." Where around 9:30 in the evening the police on a surveillance mission noticed a person carrying a red travelling bag who was acting suspiciously and they confronted himand requested him to open the red travelling bag but the person refused. Found inside the bag were marijuana leaves wrapped in a plastic wrapper and weighing one kilo, more or less. Accused was held to havev been caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid. In contrast, to the Aminnundin case, Tangliben presented urgency. Although the trial court's decision did not mention it, the transcript of stenographic notes reveals that there was an informer who pointed to the accused-appellant as carrying marijuana. Faced with such on-the-spot information, the police officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which these persons are associated. Upon being informed by their civilian informer that there would ie a transaction involving the buying and selling of marijuana which would take place on that same day, Patrolmen immediately proceeded to the vicinity where the alleged transaction would take place. While positioned at a street corner, they saw appellant and Warner Marquez ay the side of the street about forty to fifty meters away from them the police officers). They saw Marquez giving something to appellant who, thereafter, handed a wrapped object to Marquez who then inserted the object inside the front of his pants infront of his abdomen while appellant, on his part, placed the thing given to him inside his pocket. The court a quo correctly ruled: The facts and circumstances attendant precisely fall under Sec. 5(a), Rule 113 of the Rules on Criminal Procedure. The subsequent arrest of Marquez and accused were made under the principle of hot pursuit. The recovery of the marijuana from Marquez and the P190.00 from accused by the said police officers were not violative of their constitutional rights since Marquez and the accused voluntarily surrendered them to the police officers. But even for the sake of argument that the recovery of the marijuana and peso bills were against the consent of Marquez and accused, still, the

warrant due to the existence of probable cause. b. Reasonable Ground to Believe Rule Applied The Supreme Court explained that petitioners were not caught in the act, does not make their arrest illegal. Petitioners were found with young boys in their respective rooms, the one with John Sherman being naked. Under those circumstances, the CID agents had reasonable grounds to believe that petitioners had committed "pedophilia" defined as psycho-sexual perversion involving children." "Pedophilia for unusual sexual activity in which children are the preferred sexual objects" Solicitor General's Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is a behavior offensive to public morals and violative of the declared policy of the State to promote and protect the physical, moral, spiritual, social well-being of our youth. c. People v. Allan Rodriguez Reasonable ground based on tip of informer delivery of suspicious stuff to tricycle driver justified warrantless arrest. The police officers were tipped off by an informer about the illegal trade of the accused. The exact location where this trading in drugs was taking place was given to them. They witnessed the person hand deliver a suspicious stuff to the tricycle driver who in turn gave something to the person. The suspicious stuff taken from the accused were confirmed to be marijuana after tests were conducted on them. The attending circumstances taking place before their eyes led the police officers to reasonably conclude that an offense was actually being committed. d. Personal Knowledge Under Section 5(a) Was Not Likewise Strictly Observed in the Following Cases: In these cases, the fact that the search yielded possession of illegal articles was included as a justification for a warrantless

Compare Mere time to obtain a warrant not sufficient to invalidate a warrantless arrest. To be considered likewise is whether or not a warrant may be issued under the circumstances.
In Lo Ho Wing (supra), it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. In People v. Montilla, the opportunity to obtain a warrant was not considered as sufficient to invalidate the legality of the warrantless arrest. For, under the circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. The informant did not know to whom the drugs would be delivered and at which particular part of the barangay there could be such delivery or the precise time of the suspect's arrival, or of his means of transportation, the container or contrivance wherein the drugs were concealed and whether the same were arriving with, or being brought by someone separately from the courier. The court ruled that in determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered especially in rural areas. Shift In Jurisprudence: Warrantless Arrest Under Section 5(a) Based On Reasonable Ground of Suspicion

a.

Probable Cause Based on Surveillance; No Crime Committed In Harvey v. CID Commissioner Santiago, the arrest of petitioners was based on probable cause determined after close surveillance for three (3) months during which period their activities were monitored. The Supreme Court justified the arrest and the seizure of the photo negatives, photographs and posters without

143

Arrest under Section 5(a) although the arresting officer at the time of arrest has no personal knowledge of a crime being committed in their presence as prescribed in U.S. v. Samonte (supra); Sayo v. Chief of Police (supra); People v. Burgos (supra); and People v. Posadas
Meaning of Personal Knowledge of Facts Constituting Probable Cause Sufficient

Double Murder with Assault upon Agents of Persons in Authority. Nor was he arrested just after the commission of the offense for his arrest came a day after the shooting incident. He was arrested in the hospital. Seemingly, his arrest without warrant is unjustified. The Court, however, justified the arrest of Rolando Dural for being a member of the New People's Army (NPA) an outlawed subversive organization. "Subversion being a continuous offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State are in the nature of continuing crimes." The Court then went on to quote Garcia-Padilla v. Enrile,91 where the Supreme Court held: "From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisdiction in our jurisdiction." 2) In G.R. Nos. 84581-82, the arrest of Amelia Roque and Wilfredo Buenaobra who admitted membership in the NPA and officers and/or members of the NUFC-CPP were likewise justified for the same reasons stated in UMIL. The arrest without warrant of Roque was additionally justified as she was, at the time of apprehension, in possession of ammunition without license to possess. 3) In Anonuevo v. Ramos, the arrest of Domingo Anonuevo and Ramon Casiple without a warrant was also found to be justified. Both are admittedly members of the standing committee of the NUFC and, when apprehended in the house of Renato Constantino, they had a bag containing subversive materials, and both carried firearms and ammunition for which they had no license to possess or carry. The record of these two (2) cases shows that at about 7:30 o'clock in the evening of August 13,1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constantino at Marikina Heights, Marikina, which was still under surveillance by military agents. The military agents noticed bulging objects on their waist5) 4)

lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC Headquarters for investigation. Found in their possession were the following articles: (c) (d) Voluminous subversive documents Firearms and ammunitions.

In its resolution denying the Motion for Reconsideration in the Umil v. Ramos cases, the majority opinion explained the meaning of Personal Knowledge of Facts, as follows: It has been ruled that 'Personal Knowledge of Facts,' in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, "coupled with good faith on the part of the peace officers making the arrest."
The Continuing Crime Principle to Justify Warrantless Arrest

Anonuevo and Casiple claim that they were unlawfully arrested because there was no previous warrant of arrest. The Supreme Court held the claim as without merit. "The record shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and ammunition in their persons when they were apprehended." In Ocaya u. Aguirre, the arrest without warrant, of Vicky Ocaya was justified under the Rules, since she had with her unlicensed ammunition when she was arrested. The record of this case shows that on 12 May 1988, agents of the PC Intelligence and investigation of the Rizal PC-INP Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court ofPasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the ammunition, an information charging her with violation of P.D. No. 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 737. Danny Rivera, on the other hand, was released from custody. In answer to her claims that she'.,was illegally arrested, the Supreme Court held that Vicky Ocaya was arrested in flagrante delicto so that her arrest without a warrant is justified. In Espiritu v. Lim, the respondents claim that the petitioner was lawfully arrested without a judicial warrant of arrest (on November 23) since petitioner when arrested had in fact just committed an offense in the afternoon of 22 November 1988, during a press conference of the National Press Club. Deogracias Espiritu through tri-media was urging all drivers and operators to go on nationwide strike on November 23, 1988, to force the government to give in to their demands to lower the prices of

The Umil u. Ramos, and seven other petitions for habeas corpus were all based on the ground that the arrests of the petitioners were made without warrant and that no preliminary investigation was first conducted so that the information filed against them are void. The Supreme Court in a per curiam decision, however, found that the persons in whose behalf these petitions for habeas corpus have been filed, were freshly committed and that the accused were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified. The court then proceeded to give a brief narration of the facts and events surrounding each of the eight petitioners.
1) In Umil v. Ramos, one of the petitioners, Rolando Dural who was then confined in the hospital for a gunshot wound was positively identified as a member of the sparrow unit who went on top of the hood of the CAPCOM Mobile patrol car. The Supreme Court found that he was not arrested while in the act of shooting the two soldiers. He was charged with the crime of

144

spare parts, commodities, water and the immediate release from detention of the president of the PISTON (Pinagkaisahang Samahan ng Tsuper at Operators Nationwide). Further heard was Deogracias Espiritu taking the place of PISTON president Medardo Roda and also announced the formation of the Alliance Drivers Association to go on nationwide strike on November 23, 1988. Policemen waited for petitioner outside the National Press Club in order to investigate him, but he gave the lawmen the slip. He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and symphathizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to say: "Bukas tuloy ang welga natin, sumagot no. ang Cebu at Bicol na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto noting pagbaba ng halaga ng spare parts, bilihin at ang pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na." The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and brought to Police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code was filed against him before the Regional Trial Court of Manila. The Supreme Court held that the arrest of petitioner without a warrant is in accordance with the provisions of Rule 113, Sec. 5(b). 6) In Nazareno v. Station Commander, the record of this case shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinlupa, Metro Manila. One of the suspects in the killing was Ramil Regala who was arrested by the Police on 28 December 1988. Upon questioning, Regala pointed to Narciso Nazareno as one of his companions in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up Narciso Nazareno and brought him to the police headquarters for questioning. The Supreme Court held: "Evidently, the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the police authorities. As held in People v. Ancheta: "The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be perfectly legal, it is sufficient that the person in authority making the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime and that the same grounds exist to believe that the person sought to be detained participated therein."

THE PRINCIPLE OF KNOWLEDGE OF PROBABLE CAUSE TO JUSTIFY WARRANTLESS ARREST In People v. Malmstedt
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest." While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. Sufficiency of Knowledge of Probable Cause Reiterated En Bane

the travelling bag and carton box which appellant was carrying at the time. The court held that the officers thus realized that he was their man even if he was simply carrying a seemingly innocent pair of luggage for personal effects. The Court therein wrote: "the apprehending officer must have been spurred by probable cause in effecting an arrest which could be classified as one in cadence with the instances of permissible arrests set out in Section 5(a)." According to the court, the conventional view is that probable cause, while a relative term the determination of which must be resolved according to the facts of each case, is understood as having reference to facts and circumstances which could lead a reasonable, discreet, and prudent man to believe and conclude as to the commission of an offense, and that the objects sought in connection with the offense are in the place sought to be searched. The court pointed out that under Rule 112 of the Rules of Court, the quantum of evidence in preliminary investigation is such evidence as suffices to "engender a well founded belief as to the fact of the commission of the crime and the respondent's probable guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exist." It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized.
COMPARE:

WHEN WARRANTLESS ARREST BASED ON INFORMATION INVALID In People v. Aruta, the police was tipped off by his informant that a certain "Aling Rosa" will be arriving from Baguio City the following day with a large volume of Marijuana. The police proceeded to the place at 4:00 p.m. of the following day and deployed themselves near the PNB. A Victory Liner Bus arrived. Two females and a male got off, and the pointed to "Aling Rosa" carrying a traveling bag. The police approached her and inquired about the contents of the traveling bag which she handed to the police, who, upon inspection found dried leaves of marijuana

Probable cause as a ground to justify a warrantless arrest in flagrante was reiterated in the en bane decision in People u. Montilla. In this case, an informer informed the police the day before that a drug courier whom he could recognize would be arriving in Cavite from Baguio City. As soon as the appellant had alighted from the passenger jeepney the informer at once indicated to the officers that their suspect was at hand pointing to him from the waiting shed, the informer told them that the marijuana was likely hidden inside

145

packed inside a plastic bag. In determining whether the warrantless search and seizure was valid. The Court noted that there was ample opportunity to obtain a warrant of arrest. The identity of the accused was ascertained. The accused was not acting suspiciously, and distinguished the case: a. from People v. Tangliben (supra), where policemen were confronted with an on the spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their business address. More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously. b. from People v. Malmstedt. In Malmstedt, where there was no reasonable time for the police authorities to obtain a search warrant, and his actuations also aroused suspicion of the officers conducting the operation. In Aruto, there was time to obtain a search warrant, her identity was priorly ascertained, and she was not acting suspiciously. Malmstedt was searched abroad a moving vehicle, a legally accepted exception to the warrant requirement, Aruta on the other hand, was searched while she was about to cross the street. c. from People v. Bagista, where probable cause was drawn from the fact that the accused fitted the description given by the NARCOM informant and that it involves a search of a moving vehicle plus the fact the police officers erected a checkpoint in view of the confidential information from the regular informant that a woman having the same appearance as that of the accused would be bringing marijuana from up to north. from Manalili v. Court of Appeals, where the court held that the policemen had sufficient reason to accost accused to determine if he was actually "high" on drugs due to suspicious actuations, he was observed to have reddish eyes

and to be walking in swaying manner he appeared to be trying to avoid the policemen coupled with the fact that based on the information, this area was a haven for drug addicts. The Court noted that in all the above-cited cases, there was information received which became the bases for conducting the warrantless search. Furthermore, additional factors and circumstances were present which, when taken together with the information constituted probable causes which justified the warrantless searches and seizures in each case. No reference was made to Montilla. In applicable earlier decisions, the Supreme Court held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; (b) where an informer positively identified the accused who was observed to have been acting suspiciously; (c) where the accused fled when accosted by policemen; (d) where the accused who were riding a jeepney were stopped and searched by policeman who had earlier received confidential reports that the said accused would transport a large quantity of marijuana; and (e) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belonged the said accused where bringing prohibited drugs into the country Other Cases where there was no Probable Cause There is, no probable cause where the arresting team was only armed with knowledge of the suspect's "attire" which the witness could not even remember. The team did not have a physical description of the suspect nor his name. They were not even given a specific place within which to target their search of the suspect, only a vicinity of the Muslim Area in Quiapo, near the Muslim Mosque.

Yet the arresting team directly zeroed in on the accused and his companions who were only eating halo-halo at a small restaurant, surely not a crime in itself. While SP04 Clemente claims that accused had a "bulging waistline," this alone, in the light of the availing circumstances, is insufficient to constitute probable cause for the arrest of the accused. In another case, the police officers were informed that accused were repacking drugs. Accompanied by an informer, they peeped first through the window before they saw the activities of the suspects inside the room and entered the house and arrested the suspects. The court held that the arrest, search and seizure were illegal. They should have first conducted a surveillance considering that the activities and identities of the suspects were already known and if there was probable cause, they should have applied for a search warrant. The court reiterated the 7 situations of a warrantless search and held that the arrest, search and seizure do not fall on any of them. In another case, the court noted that the ETC never took the pains of pointing to such facts, (constituting probable cause) but predicated mainly its decision on the finding that "accused was caught red-handed carrying the bag-full of [s]habu when apprehended." In short, there is no probable cause. At least in People v. Tangliben, the Court agreed with the lower court's finding that compelling reasons (e.g., accused was acting suspiciously, on the spot identification by an informant that accused was transporting prohibitive drug, and the urgency of the situation) constitute of probable cause impelled. In another case, the Solicitor General proposes that the following details are suggestive of probable cause persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws.

d.

146

The Court, however, found that these do not constitute "probable cause." Tell-tale Clues of Probable Cause Reiterated None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drugs confidential report and/or positive identification by informers of courier(s) of prohibited drug and/or the time and place where they will transport/ deliver the same, suspicious demeanor or behavior and suspicious bulge in the waist accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. And despite claims by CID and BADUA that CHUA attempted to flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt at conversation when the officers approached him. In People v. Luaa, a buy-bust operation was conducted against the accused. After he had gone inside his house and returned with the three tea bags of marijuana and received the marked money, the designated poseur-buyer gave the signal to his fellow police officers who closed in and arrested the accused. In the course of the arrest, a police officer noticed something bulging at accused's waistline, which turned out to be an unlicensed .38 caliber "paltik" with two live bullets. Accused was charged with illegal possession of firearm. The search was held to be a valid incident of a lawful arrest. BUY-BUST OPERATIONS CONSIDERED AS IN FLAGRANTE ARRESTS Buy-Bust Operations Search and Seizure Pursuant to BuyBust Operation What is a buy-bust operation?

A buy-bust operation is far variant from an ordinary arrest; it is a form of entrapment which has been repeatedly accepted to be valid means of arresting violators of the Dangerous Drugs Law. In a buy-bust operation, the violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime. In flagrante arrests are usually made in drug cases during a buybust operation. A buy-bust operation is a form of entrapment employed by peace officers to catch a malefactor in flagrante delicto. It is the employment by peace officers to catch a malefactor in flagrante delicto. It is the employment of such ways and means for the purpose of entrapping or capturing a lawbreaker. The term, in connection with violation of the Dangerous Drugs Act, is a form of entrapment employed by peace officers to trap and catch malefactor in flagrante delicto. But, while buy-bust operation is a recognized means of entrapment for the apprehension of drug pusher, it does not always commend itself as the most reliable way to go after violators of the Dangerous Drugs Act as it is susceptible to mistake as well as to harassment, extortion and abuse. The Court therefore stressed that the "objective" test in buybust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseurbuyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that the law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost.

At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement. Principle of Continuity-in Buy-Bust Operations The buy-bust operation and the search and seizure pursuant to the buy-bust operation must be continuous: Buy-Bust Operation Continuous. and Search Rejected for Not Being

Thus, in People v. Enrile, an arrest based on information of a person who was entrapped to selling marijuana that the source of the Marijuana was Enrile and led the police to Enrile's house and after calling for the latter pointed to him as the source of the marijuana was held as invalid. In People v. Bautista, an arrest and search based on information of the poseur-buyer to the police who were outside the house waiting that he was able to buy the shabu from the appellant inside the house who immediately went inside and arrested the appellant was held as valid. In People v. Buenaventura, an arrest based on information of the seller after he was apprehended in a buy-bust operation that the source of the marijuana was the accused who was then arrested in a follow-up operation was held as invalid citing the case of People u. Enrile. In People v. Merabueno, the Supreme Court found: DURING THE INVESTIGATION OF BASILIO, THE POLICE LEARNED THAT THE SUPPLIER OF THE MARIJUANA WAS CRUZ. A POLICE TEAM WAS DISPATCHED TO ANTIPOLO, RIZAL, WHERE CRUZ LIVED. THE FIRST MISSION RETURNED WITHOUT FINDING CRUZ.
The team returned to Antipolo at 7:00 P.M. of the same day. According to the police, they met Cruz on their way to his house while Cruz claimed that the police just barged into his house. But assuming that the version of the police is the correct one, there was no reasonable basis to place Cruz under arrest without a warrant and then search him, also without a warrant.

147

Certainly, the arrest was not made in the course of a "hot pursuit" of Cruz, because he was not in Marikina during the "buy-bust" operation. In such a case, the police should have first secured a warrant of arrest and a search warrant before they arrested and bodily searched Cruz.

This case should be distinguished from People u. Cuachan, involving a continuing buy bust operation where after the sale, the shabu was handed to a policeman a block away who after determining it was shabu which took only a few minutes immediately proceeded to the house of the appellant and arrested him. In the case, the police conducted a buy-bust operation. As planned, Pat. Uggadan and the informant proceeded to the residence of their quarry while Pfc. Reyes and the other members of the team posted themselves in strategic places. After a few minutes, Pat. Uggadan together with the informant, reported to Pfc. Reyes that he had succeeded in buying shabu from the appellant at the same time presenting the merchandise to Pfc. Reyes. After determining it was shabu, Pfc. Reyes and his men immediately proceeded to the residence of the appellant and found in one of the rooms several men seated around a table, engaged in pot session and several paraphernalia. Pat. Uggadan pointed to the appellant to PFC Reyes as the person who earlier sold Shabu to him. Thereupon, Pfc. Reyes frisked accused-appellant and found in his person the two 100.00 peso bills he gave to Pat. Uggadan as buy-bust money and a quantity of shabu contained in a plastic bag. The court justified the warrantless arrest under Section 5, Rule 113 of the Rules of Court on warrantless arrest and the obligation of the police to apprehend even without a warrant of arrest. Pat. Uggadan witnessed the illegal act of selling shabu on the occasion of the buy-bust operation in front of the room of the accused. He did not make the arrest right then and there because there were only himself and the informant as against the different male and female voices he heard from both rooms of appellant's house. Considering that the operation took place inside the house of appellant, understandably Pat. Uggadan and his informant had to get out of the house and inform their backup that the sale had been consummated.

Furthermore, weighty consideration is the fact that, as previously stated, Pat. Uggadan immediately gave the shabu to Pfc. Reyes who was only a block away and after the latter had determined that it was shabu, which only took a few minutes, they all immediately proceeded to the house of appellant and arrested him. It was a continuing buy-bust operation which, as the phrase connotes, commenced with buying shabu and culminated in his arrest. Since his arrest was lawful, it follows that the incidental search was also valid. In another case, the arresting officers were informed by the NARCOM Chief that a transaction had been agreed upon in Las Pinas, Metro Manila for the delivery of Shabu to take place in Room No. 77 of the Hyatt Terraces at Baguio City. Undercover agents waited for the appellant inside the room, but the latter did not show up in the afternoon, but the following morning. Appellant with an undercover agent arrived at Room No. 77. The latter signaled that appellant had Shabu with him. While the sale of the Shabu which was agreed upon with a Chinese business man in Las Pinas, Metro Manila, did not take place in the presence of the agents, the delivery or attempted delivery of the subject matter took place in their presence. The Court held the warrantless arrest of appellant inside Rooir 77 was merely the culmination of an entrapment operation and that the taking of shabu from appellant was either done immediately be fore, or was an incident to a lawful arrest. The Hot Pursuit Arrest Elements: a. b. c. a. Offense have been committed; Offense has just been committed; Probable cause based on personal knowledge of facts or circumstances that persons to be arrested committed it. First Element: Meaning of Offense Committed The present rule abandons the pronouncement in People v. Burgos, that in arrests without a warrant under Section 6(b), it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first.

The rule now is the indubitable existence of a crime is not necessary to justify a warrantless arrest. In People v. Ramos, an informant apprised the police of the presence of a drug pusher at the corner of 3rd Street and Rizal Avenue, Olongapo City. Acting on such information and in their presence, their superior, Captain Castillo, gave the informant marked money to buy marijuana. The informant, now turned poseur-buyer, returned with two sticks of marijuana. Captain Castillo again gave said informant marked money to purchase marijuana. The informant poseur-buyer thereafter another two sticks of marijuana. returned with

The police officers then proceeded to the corner of 3rd Street and Rizal Avenue and effected the arrest of appellant. The Supreme Court with Justice Gutierrez as ponente, held, from the above facts, that it may be concluded that the arresting police officers had personal knowledge of facts implicating the appellant with the sale of marijuana to the informant-poseur-buyer. The arrest was held legal and the consequent search which yielded 20 sticks of marijuana was lawful for being incident to a valid arrest. The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not undermine the legality of the appellant's arrest. It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. The legality of detention does not depend upon the actual commission of the crime, but upon the nature of the deed when such characterization may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. People v. Euaristo, cited the doctrine in People v. Sucro (supra), when crime is deemed committed in one's presence e.g., hears the disturbances created thereby and proceeds at the scene thereof.

148

To justify a warrantless arrest not on Sec. 5(a) but Sec. 5(b), the Supreme Court held that the usual observation of a bulge on the waist of Carillo, along with the earlier report of gunfire, as well as the peace officer's professional instincts, are more than sufficient to pass the tests of the rules. Consequently, under the facts, the firearms taken from Carillo can be said to have been incidental to a lawful and valid arrest under Sec. 5(b), Rule 113. b. Second Element: Meaning of just been committed "Just been committed" connotes immediacy in point of time, per dissent of Justice Teehankee cited by C.J., Fernan in his concurring dissenting in Umil v. Ramos. It means a very short time ago. The arrest must be made almost immediately as soon after these acts, not at anytime after the suspicion of the arresting officer begins, no matter how long ago the offense was committed. The time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. The recency contemplated here, in relation to the making of the warrantless arrest, is the time when the crime was in fact committed, and not the time when the person making the arrest learned or was informed of such commission. 1) Espiritu v. Lim The arrest of the accused one day after commission of the crime of Inciting to Sedition was held to be valid. People v. Nazareno Arrest made 14 days after commission of the crime is valid. People v. Sucro c.

alleged eyewitness held unlawful. A warrantless arrest three (3) days after commission of the crime or 19 hours thereafter were held to be unlawful. Third Element: Personal Knowledge of Facts Following are the doctrines under the 1985 Rule on the meaning of Personal Knowledge of Facts Based on Information Rejected 1) 2) 3) 4) People v. Burgos, personal knowledge based on, information by suspect rejected. Alih v. Castro, (Need for personal knowledge) People v. Aminnudin Warrantless arrest based on tip of informer who pointed to the suspect was rejected. People u. Sucro, citing People v. Bati Police officers have personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the accused. In People u. Alvarez Arrest based on surveillance by informant who was once a policeman was held to be valid. People v. Briones Warrantless arrest made by a police officer based on disclosure by eyewitness who disclosed the identity of the perpetrator was rejected. People v. Cendana Arrest based on information from unknown sources given a day after the commission of the crime was rejected. People v. Tonog Arrest based on knowledge of facts gathered from investigation was held valid. In this case there was an oral confession. 9) Nazareno v. Station Commander of Muntinlupa Arrest based on information of a suspect 14 days aftel commission of crime held as valid. This is of doubtful validity. 1)

Petitioner's arrest took place six (6) days after the shooting of Maguan. The arresting officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly who Maguan. Neither could the arrest effected six (6) days after the shooting be reasonably regarded as effected when [the shooting had] ii fact just been committed within the meaning of Section 5(b). Moreover, none of the arresting officers had any personal knowledge of facts indicating that petitioner was the gunman who had shot Maguan The information upon which the police acted had been derived from statements made by alleged eyewitness to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car plate number which turned out to be registered in petitioner's wife name. That information did not, however, constitute personal knowledge.
Personal Knowledge of Facts Based on Information Allowed

5)

In People v. Madriaga, personal knowledge based on information of the co-accused pointing to accused as to source of marijuana, was held as valid. In People v. Gerente, the policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death; a piece of wood and a concrete hollow which the killers had used to bludgeon him to death. The eyewitness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did.

6)

2)

7)

2) 3)

8)

The fact that Macabante, when intercepted by the police, was caught throwing the marijuana sticks and when confronted, readily admitted that he bought the same from the accused-appellant clearly indicates that accused had just sold the marijuana sticks to Macabante, and therefore, had just committed an illegal act of which the police officers had personal knowledge, being members of the team which monitored Sucre's nefarious activity. 4) Rolito Go v. Court of Appeals Arrest six days after commission of the crime based on information from

10) Rolito Go u. Court of Appeals (supra, February 1992) Justice Feliciano as ponente Arrest 6 days after shooting based on information of alleged eyewitnesses was held unlawful

149

3)

In People u. Bautista, held as valid an arrest made by the station commander, who was outside the house, based on information of the poseur-buyer after the purchase was made. Said case cited in U.S. v. Santos, which justified a warrantless arrest on reasonable ground of suspicion supported by circumstances strong in themselves as to warrant a reasonable man in believing the accused to be guilty. In People u. Saycon, warrantless arrest of debarking passenger from vessel based on information was held valid. COMPARE: People v. Enrile Information by co-accused that Enrile gave him the marijuana is invalid. In People v. Encinada, the court held that: "Raw intelligence information is not a sufficient ground for a warrantless arrest." However, in People v. Montilla (supra), the court observed that "although information gathered and passed on by law enforcers are vague and piece-meal, and not as neatly and completely packaged as one would expect from a professional spymaster, such tip-offs are sometimes sucessful as it proved to be in the apprehension of appellant."

Rule is now the Rule

In its resolution denying the Motion for Reconsideration in the Umil v. Ramos cases, the majority opinion explained the meaning of personal knowledge of facts, as follows:
"It has been ruled that 'personal knowledge of facts,' in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. (Subjective) The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. (Objective) A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest."

speaking thru Jusice Reynato Puno wrote, "Personal knowledge" of facts arrests without warrant under Section 5(b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion" and reiterated the rule in Umil v. Ramos. In this case, accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. P03 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (P03 Manlangit's) query as to where the marked money was, Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house. With or without her knowledge, with or without conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable. Said the U.S. Supreme Court: "THE ARREST MUST STAND UPON A FIRMER GROUND THAN MERE SUSPICION THOUGH THE ARRESTING OFFICER NEED NOT HAVE IN HAND EVIDENCE WHICH WOULD SUFFICE TO CONVICT.
The quantum of information which constitutes probable cause or evidence which would warrant a man of reasonable caution in the belief that a felony has been committed must be measured by the facts of the particular case. A significantly lower quantum of proof is required to establish probable cause than guilt."

4)

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested but whether they are probably guilty thereof. Not evidence of guilt but "probable cause" is the reason that can validly compel the peace officers in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. The Courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, for damages under Article 32 of the Civil Code and/or for other administrative sanctions. The same principle was stated in People u. Aruta. Probable cause in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. The foregoing standards were also adopted in warrantless "hot pursuit" arrest. Thus, in the 1999 case of People u. Doria, the Court en bane

5)

In Sanchez v. Demetriou. The Warrantless arrest based on the sworn statement of Centeno by an officer who had no personal knowledge is unlawful but the defect was cured by the filing of charges and issuance of warrant of arrest. In People v. AcoZ, a group held up a passenger jeepney Policemen immediately responded to the report of the crime. One of the victims saw four persons walking towards Fort Bonifacio, one of whom was wearing his jacket. He pointed them to the policemen. When the group saw the policemen coming, they ran in different directions. Three were caught and arrested. Each was found in possession of an unlicensed revolver and charged with illegal possession of firearms. The accused claimed that the warrantless seizure of firearms was illegal. The Court rejected their plea and held that the search was a valid incident of a lawful arrest. The subsequent search of accused-appellant's person and the seizure from him of the firearm was likewise lawful.

Probable cause may, however, not be established simply by showing that the officer who made the challenged arrest or search subjectively believed that he had grounds for his action. Good faith alone is not sufficient. The probable cause test is an objective one. The mere subjective conclusion of a police concerning the existence of probable cause is not binding in the court which

Personal Knowledge of Facts Based on Reasonable Grounds of Suspicion

150

must independently scrutinize the objective facts to determine the existence of probable cause. In doing so, however, the expertise of the officer are to be taken into account. This is as it should be for there would be little merit in securing able trained men to guard the public peace if their actions were to be measured by what might be probable cause to untrained civilians. In assessing the conduct of the police officer, it is imperative that the facts be judged against an objective standard. The test is: Would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appreciated.
Personal Knowledge of the Death of Victim and Facts Indicating that Accused Was the Assailant

In another case, the police officers were informed that accused were repacking drugs. Accompanied by an informer. They peeped first through the window before they saw the activities of the suspects inside the room and entered the house and arrested the suspects. The court held that the arrest, search and seizure were illegal. They should have first conducted a surveillance considering that the activities and identities of the suspects were already known and if there was probable cause, they should have applied for a search warrant. The court reiterated the seven (7) situations of a warrantless search and held that the arrest, search and seizure do not fall on any of them. ONLY COURTS COULD DECIDE THE QUESTION OF PROBABLE CAUSE SINCE THE STUDENTS WERE NOT BEING ARRESTED IN FLA-GRANTE DELICTO In Posadas v. The Hon. Ombudsman, the NBI agents tried to effect an arrest four days after commission of the crime and had no personal knowledge of any fact which might indicate that the two students were probably guilty of the crime and what they had were the supposed positive identification of two alleged eyewitnesses, the court held this is insufficient to justify the arrest without a warrant by the NBI. The Court distinguished the case from that of People v. Tonog, relied upon by the prosecution to justify the arrest. In Tonog, the accused voluntarily went upon invitation of the police officer who later noticed the presence of blood stains on the pants of the accused. Upon reaching the police station, the accused was asked to take off his pants for examination at the crime laboratory. The question in that case involved the admissibility of the maong pants taken from the accused. It is clear that Tonog does not apply to this case. First, the accused in that case voluntarily went with the police upon the latter's invitation. Second, the arresting officer found blood stains an the pants of the accused, on the basis of which he concluded that the accused probably committed the crime for which reason the latter was taken into custody.

Third, the arrest was made on the same day the crime was committed. In the words of Rule 113, Sec. 5(b), the crime had "just been committed" and the arresting officer had "personal knowledge of the facts indicating that the person to be arrested had committed it." The court reiterated the rule in People v. Doria (supra), that:
'"Personal knowledge' of facts in arrests without a warrant under Section 5(b) of Rule 113 must be based upon 'probable cause' which means an actual belief or reasonable grounds of suspicion. The grounds of suspension are reasonable when, the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest."

In People v. Tonog, the police found the lifeless body of a person with several stab wounds. An informer pointed to the accused as the person who had killed the victim. That afternoon, police officers arrested the accused. On their way to the police station, a policeman noticed bloodstains on the accused's pants which, when examined, was found to be the same blood type "0" found on the fatal knife. The Court upheld the warrantless arrest and ruled that the blood-stained pants, having been seized as an incident of a lawful arrest, was admissible in evidence. In People v. Gerente, the police arrested the accused three hours after the victim had been killed. They went to the scene of the crime where they found a piece of wood and a concrete hollow block used by the killers in bludgeoning the victim to death. A neighbor of the accused who witnessed the killing, pointed to him as one of the assailants. The warrantless arrest was held valid under Rule 113, Sec. 5(b). In People v. Jay son, there was a shooting. The policemen summoned to the scene of the crime and found the victim. Accusedappellant was pointed to them as the assailant only moments after the shooting. In fact accused-appellant had not gone very far (only ten meters away from the "lhaw-Ihaw"), although he was then fleeing. The arresting officers thus acted on the basis of personal knowledge of the death of the victim and of facts indicating that accused-appellant was the assailant. The court upheld the warrantless arrests as valid.

To allow the arrest which the NBI intended to make without warrant would in effect allow them to supplant the courts. The determination of the existence of probable cause that the persons to be arrested committed the crime was for the judge to make. The law authorities a police officer or even an ordinary citizen to arrest criminal offenders only if the latter are committing or have just committed a crime. Otherwise, we cannot leave to the police officers the determination of whom to apprehend if we are to protect our civil liberties. This is evident from a consideration of the requirements before a judge can order the arrest of suspects. Art. Ill, Sec. 2 of the Constitution. Rule in Drug Cases The Supreme Court in People v. Saycon pointed out that:
"It is important to note that unlike in the case of crimes like, e.g., homicide, murder, physical injuries, robbery or rape which by their nature involve physical, optically perceptible, overt acts, the defense of possessing or delivering or transporting some prohibited or regulated drug is customarily carried out without any external signs or indication visible to police officers and the rest of the outside world.

151

Drug "pushers" or couriers do not customarily go about their enterprise or trade with some external visible sign advertising the fact that they are carrying or distributing or transporting prohibited drugs. Thus, the application of the rules in Section 5(a) and (b), Rule 133 of the Rules of Court needs to take that circumstances into account. The Court has had to resolve the question of valid or invalid warrantless arrest or warrantless search or seizure in such cases by determining the presence or absence of a reasonable or probable cause, before that such a felony (possessing or transporting or delivering prohibited drugs) was then in progress. In Barros, the Court listed the kinds of causes which have been characterized as probable or reasonable cause supporting the legality and validity of a warrantless search and a warrantless arrest in cases of this type:

Fealty to the constitution and the rights it guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they have blundered. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. Rule on Escapees When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. An officer may arrest without a warrant, a prisoner who has escaped from custody after trial and commitment, and it has been held that even a private person may without a warrant, arrest a convicted felon who has escaped and is at large. An officer may arrest without a warrant, a prisoner who has escaped from custody after trial and commitment. Even a private person may, without a warrant, arrest a convicted felon who has escaped and is at large, since he might also, before conviction, have arrested the felon. Evasion of service of sentence; Arrest, without a warrant, principle applied. Rule 113 of the Revised Rules of Court may be invoked in support of this conclusion; for, under Section 6(c) thereof one of the instances when a person may be validly arrested without warrant is where he has escaped from confinement. Undoubtedly, this right of arrest without a warrant is founded on the principle that at the time of the arrest, the escapee is in the continuous act of committing a crime evading the service of his sentence. SEC. 6. Time of Making Arrest SEC. 7. Method of Arrest by Officer by Virtue of Warrant SEC. 8. Method of Arrest by Officer Without Warrant

Duty of Arresting Officer At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, or by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.
Procedure, Guidelines and Duties of Arresting or Investigating Officer

"THIS COURT HAS IN THE PAST FOUND PROBABLE CAUSE TO CONDUCT WITHOUT A JUDICIAL WARRANT AN EXTENSIVE SEARCH OF MOVING VEHICLES IN SITUATIONS WHERE
(1) (2) there had emanated from a package the distinctive smell of marijuana; agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted;204 Narcom agents were informed or "tipped off" by an undercover "deep penetration" agent that prohibited drugs would be brought into the country on a particular airline flight on a given date; Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; and Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana."

(3)

(4)

(5)

Caution:

Considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through lawful means, the Court as guardian of the rights of the people, and in the light of the new legal developments, laid down an updated procedure, guidelines and duties which the arresting, detaining, inviting or investigating officer or his companions must do and observe at the time of making arrest and again at and during the custodial interrogation in accordance with the Constitution, jurisprudence and Republic Act No. 7438: a. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and must be shown the warrant of arrest, if any. Every other warnings, information or communication must be in a language known to and understood by said person; b. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence

The government's drive against illegal drugs needs the support of every citizen. But it should not undermine the fundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against warrantless arrests and unreasonable searches and seizures cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do.

152

against him; c. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him, and that a lawyer may also be engaged by any person in his behalf or may be appointed by the court upon petition of the person arrested or one acting in his behalf; That whether or not the person arrested has lawyer he must be informed that no custodial investigation any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; The person arrested must be informed that at any time, he has the right to communicate or confer by the most expedient means telephone, radio, letter or messenger with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or any one from his immediate family or by counsel or be visited or by conferences with duly accredited national or international non-governmental organization. It shall be the responsibility of the officer to ensure that this is accomplished; He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; That the person must be informed that he may indicate in any manner at any stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced or the interrogation must ceased (sic) if it has already begun; The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process regardless of whether he may have answered some questions or volunteered some statement; and

k.

He must also be informed that any statement or evidence as the case may be obtained in violation of any of the foregoing whether inculpatory or exculpatory, in whole or in part shall be inadmissible in evidence. SEC. 9. Method of Arrest by Private Person SEC. 10. Officer may Summon Assistance SEC. 11. Right of Officer to Break into Building or Enclosure SEC. 12. Right to Break Out from Building or Enclosure SEC. 13. Arrest After Escape or Rescue SEC. 14. Right of Attorney or Relative to Visit Person arrested

d.

AS USED IN THIS ACT, "CUSTODIAL INVESTIGATION" SHALL INCLUDE THE PRACTICE OF ISSUING AN "INVITATION" TO A PERSON WHO IS INVESTIGATED IN CONNECTION WITH AN OFFENSE HE IS SUSPECTED TO HAVE COMMITTED, WITHOUT PREJUDICE TO THE LIABILITY OF THE "INVITING" OFFICER FOR ANY VIOLATION OF LAW. SEC. 4 A) ANY ARRESTING PUBLIC OFFICER OR EMPLOYEE, OR ANY INVESTIGATING OFFICER, WHO FAILS TO INFORM ANY PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION OF HIS RIGHT TO REMAIN SILENT AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL PREFERABLY OF HIS OWN CHOICE, SHALL SUFFER A FINE OF SIX THOUSAND PESOS (P6,000.00) OR A PENALTY OF IMPRISONMENT OF NOT LESS THAN EIGHT (8) YEARS BUT NOT MORE THAN TEN (10) YEARS, OR BOTH.
The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.

e.

f.

Under Republic Act No. 7438:

g.

h.

"SECTION 2(B) ANY PUBLIC OFFICER OR EMPLOYEE, OR ANYONE ACTING UNDER HIS ORDER OR IN HIS PLACE, WHO ARRESTS, DETAINS OR INVESTIGATES ANY PERSON FOR THE COMMISSION OF AN OFFENSE SHALL INFORM THE LATTER, IN A LANGUAGE KNOWN TO AND UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL, PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION.
If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. (a) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

THE SAME PENALTIES SHALL BE IMPOSED UPON A PUBLIC OFFICER OR EMPLOYEE, OR ANYONE ACTING UPON ORDERS OF SUCH INVESTIGATING OFFICER OR IN HIS PLACE, WHO FAILS TO PROVIDE A COMPETENT AND INDEPENDENT COUNSEL TO A PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION FOR THE COMMISSION OF AN OFFENSE IF THE LATTER CANNOT AFFORD THE SERVICES OF HIS OWN COUNSEL. B) ANY PERSON WHO OBSTRUCTS, PREVENTS OR PROHIBITS ANY LAWYER, ANY MEMBER OF THE IMMEDIATE FAMILY OF A PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION, OR ANY MEDICAL DOCTOR OR PRIEST OR RELIGIOUS MINISTER CHOSEN BY HIM OR BY ANY MEMBER OF HIS IMMEDIATE FAMILY OR BY HIS COUNSEL, FROM VISITING AND CONFERRING PRIVATELY WITH HIM, OR FROM EXAMINING AND TREATING HIM, OR FROM MINISTERING TO HIS SPIRITUAL NEEDS, AT ANY HOUR OF THE DAY OR, IN URGENT CASES, OF THE NIGHT SHALL SUFFER THE PENALTY OF IMPRISONMENT OF NOT LESS THAN FOUR (4) YEARS NOR MORE THAN SIX (6) YEARS, AND A FINE OF FOUR THOUSAND PESOS (P4,000.00). UNDER SEC. 2(D), REPUBLIC ACT NO. 7348 ANY EXTRAJUDICIAL CONFESION MADE BY A PERSON, ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION" (WHICH SHALL INCLUDE AN "INVITATION FOR INVESTIGATION" SHALL BE IN

i.

j.

153

WRITING AND SIGNED BY SUCH PERSON IN THE PRESENCE OF HIS COUNSEL OR IN THE LATTER'S ABSENCE, UPON A VALID WAIVER, AND IN THE PRESENCE OF ANY OF THE PARENTS, ELDER BROTHERS AND SISTERS, HIS SPOUSE, THE MUNICIPAL MAYOR, THE MUNICIPAL JUDGE, DISTRICT SCHOOL SUPERVISOR, OR PRIEST OR MINISTER OF THE GOSPEL AS CHOSEN BY HIM; OTHERWISE, SUCH EXTRAJUDICIAL CONFESSION SHALL BE INADMISSIBLE AS EVIDENCE IN ANY PROCEEDING. In other words, if there is a valid waiver, and the lawyer's presence is waived, the confession must still be signed in the presence of any persons enumerated above. 1. Application of Actual Force, Manual Touching of the Body, Physical Restraint or a Formal Declaration of Arrest is Not Required It is enough that there be an intent on the part of one of the parties to arrest the other and intent on the part of the other to submit, under the belief and impression that submission is necessary.1 a. A letter-invitation is equivalent to arrest. Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site as a military camp, this is obviously a command or an order of arrest. b. Under R.A. No. 7438, the requisites of a custodial interrogation are applicable even to a person not formally arrested but merely invited for questioning,

arraignment, participated in the trial and presented his evidence. Appellant is thus estopped from questioning the legality of his arrest. It is well-settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived. Besides, this issue is being raised for the first time by appellant. He did not move for the quashal of the information before the trial court on this ground. Consequently, any irregularity attendant to his arrest, if any, was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a plea of not guilty and by participating in the trial. Moreover, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after the trial free from error. b. Thus, the unlawfulness of an arrest does not affect the jurisdiction of the Court. In other words, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error.

2. Illegality of Arrest Does Not Render the Proceedings Void where No timely Objection to the Irregularity is Made a. See also People v. Macam3 for waiver of illegality of arrest. A motion to quash should be filed. The illegality of the arrest or the procedure in acquiring jurisdiction of the person of an accused must be raised before plea. [I]t is too late for appellant to raise the question of his arrest without a warrant. When accused-appellant was arrested and a case was filed against him, he pleaded not guilty upon

154