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San Beda College of Law

135

MEMORY AID IN REMEDIAL LAW

CRIMINAL PROCEDURE

Criminal Jurisdiction power of the 2. Determined by the law in force


State to try and punish a person for a at the time of the institution of
violation of its penal laws. the criminal action. ONCE
VESTED, IT CANNOT BE
REQUISITES FOR A VALID EXERCISE OF WITHDRAWN BY:
CRIMINAL JURISDICTION: a) subsequent valid amendment
1. The offense, by virtue of the of the information; or
imposable penalty OR its nature, b) a subsequent statutory
is one which the court is by law amendment of the rules of
authorized to take cognizance jurisdiction, UNLESS the
of, (jurisdiction over the amendatory law provides
SUBJECT MATTER). otherwise.
2. The offense must have been
committed within its territorial
jurisdiction, (jurisdiction over RULE 110
the TERRITORY). PROSECUTION OF OFFENSES
3. The person charged with the
offense must have been brought Section 1. Institution of criminal
to its presence for trial, forcibly actions.
by warrant of arrest or upon his
voluntary submission to the For offenses where a preliminary
court, (jurisdiction over the investigation is required - by filing the
PERSON OF THE ACCUSED). complaint with the proper officer for the
purpose of conducting the requisite
JURISDICTION JURISDICTION preliminary investigation.
OVER THE OVER THE PERSON
SUBJECT MATTER OF THE ACCUSED Preliminary investigation is REQUIRED for
Derived from the May be acquired by offenses where the penalty prescribed
law. It can never be consent of the by law is at least 4 years, 2 months and
acquired solely by accused or by waiver 1day without regard to fine (Rule 112,
consent of the of objections. Sec. 1 Par.2).
accused.
Objection that the If he fails to make his For all other offenses - by filing the
court has no objection in time, he complaint or information directly with
jurisdiction of the will be deemed to the Municipal Trial Courts and Municipal
subject matter may have waived it. Circuit Trial Courts, or the complaint
be made at any stage with the office of the prosecutor.
of the proceeding,
and the right to DOES NOT APPLY to offenses which are
make such objection subject to summary procedure.
is never waived.
Effect of institution of the criminal
DETERMINATION OF CRIMINAL action:
JURISDICTION: It interrupts the running of the period of
prescription of the offense charged
1. Determined by the allegations in
unless otherwise provided by special
the complaint or information not laws.
by the results of proof or by the
trial courts appreciation of the
evidence presented.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
136

MEMORY AID IN REMEDIAL LAW

Remedies of the offended party if the motion to quash on that ground has
prosecutor refuses to file an been denied.
information:
1. file an action for mandamus, in Section 2. Form of the complaint or
case of grave abuse of information.
discretion;
2. lodge a new complaint before FORM
the court having jurisdiction 1. In writing;
over the offense; 2. In the name of the People of the
3. take up the matter with the Philippines; and
Secretary of Justice in 3. Against all persons who appear
accordance with the Rev. to be responsible for the offense
Administrative Code; involved.
4. institute an administrative Section 3. Complaint defined.
charges against the erring
prosecutor; and A Complaint is:
5. file criminal action against the 1. a sworn written statement;
prosecutor with the 2. charging a person with an
corresponding civil action for offense;
damages. 3. subscribed by the offended
party, any peace officer or other
May Injunction Issue to Restrain public officer charged with the
Criminal Prosecution? enforcement of the law violated.
GENERAL RULE: Criminal prosecutions
may NOT be restrained or stayed by The complaint mentioned in this section
injunction, preliminary or final. The refers to one filed in court for the
reason being, public interest requires commencement of a criminal
that criminal acts be immediately prosecution for violation of a crime,
investigated and prosecuted for the usually cognizable by municipal trial
protection of the society (Domingo vs. courts as well as to a complaint filed by
Sandiganbayan, 322 SCRA 655). an offended party in private crimes or
EXCEPTIONS: those which cannot be prosecuted de
1. To afford adequate protection to the officio.
constitutional rights of the accused;
2. When necessary for the orderly REQUISITES OF A COMPLAINT:
administration of justice or to avoid 1. it must be in writing and under
oppression or multiplicity of actions; oath;
3. When there is a prejudicial question 2. it must be in the name of the
which is subjudice; People of the Philippines;
4. When the acts of the officer are 3. it must charge a person with an
without or in excess of authority; offense; and
5. When the prosecution is under an 4. it must be subscribed by the
invalid law, ordinance or regulation; offended party, by any peace
6. When double jeopardy is clearly officer or public officer charged
apparent; with the enforcement of the law
7. When the court had no jurisdiction violated.
over the offense;
8. When it is a case of persecution PERSONS WHO CAN FILE A COMPLAINT
rather than prosecution; 1. Offended party
9. When the charges are manifestly 2. Any peace officer
false and motivated by lust for 3. Other public officer charged
vengeance; and with the enforcement of the law
10. When there is clearly no prima facie violated
case against the accused and a

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
137

MEMORY AID IN REMEDIAL LAW

ex. Internal Revenue Officer for prosecuted under the direction and
violation of the NIRC, custom control of the prosecutor.
agents with respect to violations
of the Tariff and Customs Code A PRIVATE PROSECUTOR may be
authorized to prosecute a criminal
Section 4. Information defined. action subject to the following
conditions:
An Information is: 1. the public prosecutor has a
1. an accusation in writing; heavy work schedule, or there is
2. charging a person with an no public prosecutor assigned in
offense; the province or city;
3. subscribed by the prosecutor and 2. the private prosecutor is
filed with the court. authorized IN WRITING by the
Regional State Prosecutor (RSP),
REQUISITES OF AN INFORMATION Provincial or City Prosecutor;
1. it must be in writing; 3. the authority of the private
2. it must charge a person with an prosecutor must be approved by
offense; the court;
3. it must be subscribed by the 4. the private prosecutor shall
fiscal; and continue to prosecute the case
4. it must be filed in court. until the end of the trial unless
the authority is withdrawn or
COMPLAINT INFORMATION otherwise revoked by the RSP,
Subscribed by the Subscribed by the Provincial or City Prosecutor;
offended party, any fiscal and
peace officer or other (indispensable 5. In case of the withdrawal or
officer charged with requirement) revocation of the authority of
the enforcement of the private prosecutor, the same
the law violated must be approved by court.
it may be filed either it is filed with the (Memo Circ. No. 25, April 26,
in court or in the court 2002, Regarding Amendment to
prosecutors office Sec. 5, Rule 110)
must be made under need not be under
oath oath In appeals before the CA and the SC, it is
only the Solicitor General that is
Prosecution in the RTC are always authorized to bring and defend actions in
commenced by information, EXCEPT: behalf of the People of the Philippines
1. in certain crimes against chastity (People vs. Nano, 205 SCRA 155).
(concubinage, adultery,
seduction, abduction, acts of In all cases elevated to the
lasciviousness); and Sandiganbayan and from the
2. defamations imputing any of the Sandiganbayan to the SC, the Office of
aforesaid offenses wherein a the Ombudsman, through its Special
sworn written complaint is Prosecutor shall represent the People of
required in accordance with the Philippines, EXCEPT in cases filed
section 5 of this Rule. pursuant to E.O. Nos. 1, 2, 14 and 14-A,
issued in 1986 (Sec. 4, RA 8249).
Section 5. Who must prosecute
criminal actions. PROSECUTION OF CRIMES AGAINST
FULL DISCRETION AND CONTROL OF CHASTITY
THE PROSECUTOR
All criminal actions commenced by a WHO MAY PROSECUTE
complaint or information shall be 1. Concubinage and adultery only by
the offended spouse who should

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
138

MEMORY AID IN REMEDIAL LAW

have the status, capacity, and legal c) if the offended woman is of age
representation at the time of filing and not otherwise incapacitated,
of the complaint, regardless of age; only she can extend a valid
2. Seduction, Abduction and Acts of pardon.
Lasciviousness prosecuted
exclusively and successively by the The pardon refers to pardon BEFORE
following persons in this order: filing of the criminal complaint in court.
a) by the offended woman Pardon effected after the filing of the
b) by the parents, grandparents or complaint in court does NOT prohibit the
legal/judicial guardians in that continuance of the prosecution of the
successive order offense EXCEPT in case of marriage
c) by the State in the exercise of between the offender and the offended
the right of parens patriae, party.
when the offended party dies or
becomes incapacitated before PARDON vs. CONSENT
she could file the complaint and Consent refers to future acts, while
she has no known parents, pardon refers to past acts of adultery.
grandparents or guardian. The importance of this distinction is that
3. A defamation imputing to a person consent, in order to absolve the accused
any of the foregoing crimes of from liability, is sufficient even if
concubinage, adultery, seduction, granted only to the offending spouse,
abduction, rape or acts of whereas pardon must be extended to
lasciviousness can be prosecuted both offenders
only by the party or parties defamed
(Article 360, last par., Revised Penal The SUBSEQUENT MARRIAGE between the
Code). offended party and the accused
extinguishes the criminal liability of the
If the offended party is of legal age AND latter, together with that of the co-
does not suffer from physical or mental principals, accomplices and accessories.
disability, she alone can file the EXCEPT:
complaint to the exclusion of all others. 1. where the marriage was invalid
or contracted in bad faith in
WHO CAN GIVE PARDON order to escape criminal liability,
1. Concubinage and adultery - only 2. in private libel
the offended spouse, not otherwise 3. in multiple rape, insofar as the
incapacitated, can validly extend the other accused in the other acts
pardon or consent contemplated of rape respectively committed
therein. by them are concerned.
2. Seduction, abduction, and acts of
lasciviousness The ACQUITTAL OR DEATH of one of the
a) the offended minor, if with accused in the crime of adultery does
sufficient discretion, can validly not bar the prosecution of the other
pardon the accused by herself if accused (People vs. Topio, et al., 35
she has no parents or where the Phil. 901). HOWEVER, the death of the
accused is her own father and offended spouse before the filing of the
her mother is dead; complaint for adultery bars further
b) the parents, grandparents or prosecution, BUT if the offended spouse
guardian of the offended minor, died after the filing of the corresponding
in that order, CANNOT extend a complaint, his death will NOT prevent
valid pardon in said crimes the proceeding from continuing to its
WITHOUT the conformity of the ultimate conclusion.
offended party, even if the latter
is a minor; DESISTANCE of complainant does not
bar criminal prosecution but it operates

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
139

MEMORY AID IN REMEDIAL LAW

as waiver of the right to pursue civil The information or complaint must state
indemnity. or designate the following whenever
possible:
Section 6. Sufficiency of complaint or 1. The designation of the offense
information. given by the statute.
2. The statement of the acts or
CONTENTS OF A VALID COMPLAINT OR omissions constituting the
INFORMATION offense, in ordinary, concise and
1. Name of the accused, including particular words.
any appellation or nickname 3. The specific qualifying and
An error in the name of the aggravating circumstances must
accused is not reversible as long be stated in ordinary and concise
as his identity is sufficiently language.
established and this defect is
curable at any stage of the The qualifying and aggravating
proceedings as the insertion of circumstances cannot be appreciated
the real name of the accused is even if proved UNLESS alleged in the
merely a matter of form. information.
2. The designation of the offense
3. The acts or omissions In case of allegation of aggravating
complained of as constituting circumstance of HABITUAL DELINQUENCY,
the offense it should not be generally averred. The
4. The name of the offended party information must specify the requisite
5. The approximate time of the data regarding:
commission of the offense 1. the commission of the crimes;
6. The place wherein the offense 2. the last conviction or release;
was committed 3. the other previous conviction or
release of the accused.
PURPOSE OF THE RULE
1. To inform the accused of the ALLEGATIONS PREVAIL OVER
nature and cause of accusation DESIGNATION OF THE OFFENSE IN THE
against him. INFORMATION
2. To notify the defendant of the
criminal acts imputed to him so It is not the designation of the offense in
that he can duly prepare his the complaint or information that is
defense. controlling (People vs. Samillano, 56
SCRA 573); the facts alleged therein and
Substantial defect in the information not its title determine the nature of the
cannot be cured by evidence that would crime (People vs. Magdowa, 73 Phil.
jeopardize the accuseds right to be 512).
informed of the true nature of the
offense he is being charged with The accused may be convicted of a
crime more serious than that named in
Section 7. Name of the accused. the title or preliminary part if such
crime is covered by the facts alleged in
PURPOSE the body of the information and its
The manifest intent of the provision is to commission is established by evidence
make a specific identification of the (Buhat vs. Court of Appeals, 265 SCRA
person to whom the commission of an 701).
offense is being imputed.

Section 8. Designation of the offense. Limitation on the rule that an accused


may be convicted of a crime which is

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
140

MEMORY AID IN REMEDIAL LAW

more serious than that named in the


title so long as the facts alleged the PURPOSE
more serious offense: To show territorial jurisdiction.

An accused could not be convicted under Section 11. Date of commission of the
one act when he is charged with a offense
violation of another if the change from
one statute to the other involves: GENERAL RULE:
a) a change in the theory of the It is NOT required that the complaint or
trial; information state with particularity the
b) requires of the defendant a PLACE where the crime was committed
different defense; or and the DATE of the commission of the
c) surprises the accused in any way crime.
(U.S. vs. Panlilio, 28 Phil. 603) EXCEPTION:
. If the PLACE/DATE of the commission of
Section 9. Cause of the accusation. the offense constitutes an essential
element of the offense.
PURPOSE
1. to enable the court to pronounce Section 12. Name of the offended
proper judgment; party
2. to furnish the accused with such
a description of the charge as to GENERAL RULE: The offended party
enable him to make a defense; must be designated by name, nickname,
3. as a protection against further any other appellation or by fictitious
prosecution for the same cause. name.
EXCEPTION: In crimes against property,
RULE ON NEGATIVE AVERMENTS the description of the property must
GENERAL RULE: Where the statute supplement the allegation that the
penalizes generally the acts therein owner is unknown.
defined and is intended to apply to all
persons indiscriminately, the information Section 13. Duplicity of offense.
is sufficient even if does not allege that
the accused falls within the excepted There is duplicity when the complaint or
situation, for then the complete information charges 2 or more DISTINCT
definition of the offense is entirely or DIFFERENT offenses.
separable from the exceptions and can
be made without reference to the latter. GENERAL RULE:
In this case, the exception is a matter of A complaint or information must charge
defense which the accused has to prove. only one offense.
EXCEPTIONS:
EXCEPTION: Where the statute alleged 1. Complex crimes
to have been violated applies only to a 2. Special Complex crimes
specific class of persons and to special 3. Continuous crimes or delicto
conditions, the information must allege continuado
facts establishing that the accused falls 4. Crimes of which another offense
within the specific class affected and not is an ingredient
those affected from the coverage of law.
Where negative averment is an essential Should there be duplicity of offense in
element of the crime, it must be proved. the information, the accused must move
for the quashal of the same BEFORE
arraignment

Section 10. Place of commission of the


offense

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
141

MEMORY AID IN REMEDIAL LAW

arraignment, otherwise, he is deemed to AMENDMENT SUBSTITUTION OF


have waived the objection and maybe INFORMATION OR
found guilty of as many offenses as those COMPLAINT
charged and proved during the trial. May involve either Involves substantial
formal or substantial change from the
Section. 14. Amendment or changes original charge
substitution. Amendment before Substitution of
the plea has been information must be
KINDS OF AMENDMENT entered can be with leave of court as
1. BEFORE THE PLEA covers both effected without the original
substantial and formal leave of court. information has to be
amendment, WITHOUT leave of dismissed.
court. Amendment is only Another preliminary
2. AFTER THE PLEA covers only as to form, there is investigation is
formal amendment provided: no need for another entailed and the
a) leave of court is obtained preliminary accused has to plead
b) such amendment is not investigation and the anew to the new
prejudicial to the rights of retaking of the plea information
the accused. of the accused.
EXCEPT when a fact supervenes
which changes the nature of the An amended Requires or
crime charged in the information information refers to presupposes that the
or upgrades it to a higher crime, the same offense new information
in which case, there is a need charged in the involves a different
for another arraignment of the original information offense which does
accused under the amended or to an offense not include or is not
information. which necessarily necessarily included
includes or is in the original
An amendment is only in form where it necessarily included charge, hence the
neither affects nor alters the nature of in the original accused cannot claim
the offense charged OR where the charge, hence double jeopardy.
charge does not deprive the accused of a substantial
fair opportunity to present his defense amendments to the
OR where it does not involve a change in information after the
the basic theory of the prosecution. plea has been taken
cannot be made over
Substitution If it appears at anytime the objection of the
before judgment that a mistake has been accused, for if the
made in charging the proper offense, the original information
court shall dismiss the original complaint would be withdrawn,
or information upon the filing of a new the accused could
one charging the proper offense, invoke double
provided the accused shall not be placed jeopardy.
in double jeopardy.
VARIANCE BETWEEN INDICTMENT AND
Limitation to the rule on substitution: PROOF (Situations Contemplated)
1. No judgment has yet been 1. When the offense proved is less
rendered. serious than, and is necessarily
2. The accused cannot be convicted included in, the offense charged,
of the offense charged or of any in which case the defendant
other offense necessarily shall be convicted of the offense
included therein. proved.
3. The accused would not be placed 2. When the offense proved is more
in double jeopardy. serious than and includes the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
142

MEMORY AID IN REMEDIAL LAW

offense charged, in which case 2. Complex Crimes


the defendant shall be convicted Where the crime charged is a
of the offense charged. complex crime, the RTC of
3. When the offense proved is any province in which any
neither included in, nor does it one of the essential
include, the offense charged and elements of such complex
is different therefrom, in which crime had been committed
case the court should dismiss the has jurisdiction to take
action and order the filing of a cognizance of the offense.
new information charging the 3. Continuing Offense - is one
proper offense. where the elements of which
occur in several places, (unlike a
The third situation set forth above is LOCAL OFFENSE - one which is
substitution of information under Section fully consummated in one place)
14, Rule 110. The venue is in the place
where one of its essential
Section 15. Place where action is to be elements was consummated.
instituted. 4. Piracy The venue of piracy,
unlike all other crimes, has no
PURPOSE territorial limits.
The purpose being not to compel the 5. Libel The action may be
defendant to move to, and appear in a instituted at the election of the
different court from that of the territory offended or suing party in the
where the crime was committed, as it province or city:
would cause him great inconvenience in a) where the libelous article is
looking for his witnesses and other printed and first published;
evidence in another place (Beltran vs. b) if one of the offended
Ramos, 96 Phil. 149). parties is a private
individual, where said
VENUE IS JURISDICTIONAL private individual actually
Venue is jurisdictional as the court has resides at the time of the
no jurisdiction to try an offense commission of the offense;
committed outside its territorial c) if the offended party is a
jurisdiction. It cannot be waived, or public official, where the
changed by agreement of the parties, or latter holds office at the
by the consent of the defendant. time of the commission of
the offense.
GENERAL RULE: Subject to existing 6. In exceptional circumstances to
laws, in all criminal prosecutions, the ensure a fair trial and impartial
action must be instituted and tried in inquiry. The SC shall have the
the courts of the municipality or power to order a change of
territory where the offense was venue or place of trial to avoid
committed or any of its essential miscarriage of justice (Section
ingredients occurred. 5[4], Article VIII, 1987
Constitution).
EXCEPTIONS TO THE RULE OF VENUE:
1. Felonies under Art. 2 of the Section 16. Intervention of the
Revised Penal Code offended party in criminal action.
Shall be cognizable by the
proper court where the GENERAL RULE: Offended party has the
criminal action was first right to intervene by counsel in the
filed. prosecution of the criminal action,
where the civil action for recovery of

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
143

MEMORY AID IN REMEDIAL LAW

civil liability is instituted in the criminal Civil Code which can be prosecuted even
action pursuant to Rule 111. without reservation.
In BP 22 cases, no reservation to file
EXCEPTIONS: the civil action separately shall be
1. Where from the nature of the allowed.
crime and the law defining and
punishing it, NO civil liability RULES ON FILING FEES OF CIVIL ACTION
arises in favor of the offended DEEMED INSTITUTED WITH THE
party; and CRIMINAL ACTION
2. Where the offended party has 1. NO filing fees are required for
waived his right to civil amounts of ACTUAL DAMAGES,
indemnity OR has expressly EXCEPT with respect to criminal
reserved his right to institute a actions for violation of BP 22, in
civil action OR has already which case, the offended party
instituted said action. shall pay in full the filing fees
based on the face value of the
check as the actual damages;
RULE 111 2. Damages other than actual
PROSECUTION OF CIVIL ACTIONS (moral, exemplary and other
damages) if specified in the
Section 1. Institution of criminal and complaint or information, the
civil actions. corresponding filing fees shall be
paid, otherwise the court will
GENERAL RULE: not acquire jurisdiction over
When a criminal action is instituted, the such damages;
civil action for the recovery of civil 3. Where moral, exemplary and
liability arising from the offense shall be other damages are NOT specified
deemed instituted with the criminal in the complaint or information,
action. the grant and amount thereof
EXCEPTIONS: are left to the sound discretion
1. when the offended party WAIVES of the trial court, the
the civil action corresponding filing fees need
2. when the offended party not be paid and shall simply
RESERVES his right to institute a constitute a first lien on the
separate civil action judgment.
3. when offended party INSTITUTES
A CIVIL ACTION PRIOR to the Counterclaims, cross-claims, third
criminal action. party complaints are no longer allowed
in a criminal proceeding. Any claim
WHEN RESERVATION SHALL BE MADE which could have been the subject
1. before the prosecution starts to thereof may be litigated in a separate
present its evidence and civil action.
2. under circumstances affording
the offended party to a Section 2. When separate civil action is
reasonable opportunity to make suspended.
such reservation.
PRIMACY OF CRIMINAL ACTION OVER
ONLY the civil liability arising from the CIVIL ACTION
crime charged as a felony is now deemed 1. After the filing of the criminal
instituted. Civil liability arising from action, the civil action which has
other sources of obligations are no been reserved CANNOT be
longer deemed instituted like those instituted until final judgment
under Article 32, 33, 34 and 2176 of the has been rendered in the
criminal action.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
144

MEMORY AID IN REMEDIAL LAW

2. If the civil action is instituted Where the criminal case was dismissed
BEFORE the filing of the criminal before trial because the offended party
action and the criminal action is executed an affidavit of desistance, the
subsequently commenced, the civil action thereof is similarly
pending civil action shall be dismissed.
suspended until final judgment
in the criminal action has been Section 3. When civil action may
rendered. proceed independently.
EXCEPTIONS:
a) In cases of independent civil The institution of an independent civil
actions based upon Arts. 32, 33, action against the offender under
34 and 2176 of the Civil Code; Articles 32, 33, 34 and 2176 of the Civil
b) In cases where the civil action Code may proceed independently of the
presents a prejudicial question; criminal case and at the same time
c) In cases where the civil action is without suspension of either proceeding.
consolidated with the criminal
action; and Recovery of civil liability under Articles
d) Where the civil action is not one 32, 33, 34 and 2176 of the Civil Code
intended to enforce the civil arising from the same act or omission
liability arising from the offense. may be prosecuted separately even
without a reservation. The reservation
ACQUITTAL IN A CRIMINAL CASE DOES and waiver herein refers only to the civil
NOT BAR THE FILING OF THE CIVIL CASE action for the recovery of civil liability
WHERE: arising from the offense charged (DMPI
1. the acquittal is based on Employees Credit Coop vs. Velez, G.R.
reasonable doubt, if the civil No. 129282, Nov. 29, 2001).
case has been reserved
2. the decision contains a PURPOSE
declaration that the liability of To prevent the offended party from
the accused is not criminal but recovering damages twice for the same
only civil in nature and act or omission.
3. the civil liability is not derived
from or based on the criminal Section 4. Effect of death on civil
act of which the accused is actions.
acquitted (Sapiera vs. Court of
Appeals, 314 SCRA 370). AFTER arraignment and during the
pendency of the criminal action -
Extinction of the penal action does not extinguishes the civil liability arising
carry with it the extinction of the civil from the delict.
action, UNLESS the extinction proceeds
from a declaration in a final judgment BEFORE arraignment - the case shall be
that the fact from which the civil DSMISSED without prejudice to any civil
liability might arise did not exist. action the offended party may file
against the estate of the deceased.
The extinction of the civil liability
refers exclusively to civil liability arising However, the independent civil action
from crime; whereas, the civil liability instituted under Section 3 of this Rule or
for the same act considered as a quasi- which thereafter is instituted to enforce
delict is not extinguished even by a liability arising from other sources of
declaration in the criminal case that the obligation may be continued against the
criminal act charged has not happened estate or legal representative of the
or has not been committed by the accused after proper substitution or
accused. against said estate, as the case may be.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
145

MEMORY AID IN REMEDIAL LAW

Section 7. Elements of prejudicial


question. Preliminary Investigation is required to
be conducted BEFORE the filing of a
Prejudicial Question - that which arises complaint or information for an offense
in a case, the resolution of which is the where the penalty prescribed by law is
logical antecedent of the issue involved at least 4 years, 2 months and 1 day
therein, and the cognizance of which without regard to the fine.
pertains to another tribunal. It must be
determinative of the case before the There is NO right of preliminary
court but the jurisdiction to try and investigation under Section 7, Rule 112
resolve the question must be lodged in when a person is LAWFULLY arrested
another court or tribunal. unless there is a waiver of the provisions
of Article 125 of the Revised Penal Code.
Rationale: to avoid two conflicting
decisions. HOWEVER, the accused can ask for
Preliminary Investigation in the following
ELEMENTS OF A PREJUDICIAL QUESTION cases:
1. The civil action must be 1. if a person is arrested, he can
instituted prior to the criminal ask for preliminary investigation
action. BEFORE the filing of the
2. The civil action involves an issue complaint/information BUT he
similar or intimately related to must sign a waiver in accordance
the issue raised in the criminal with Article 125, RPC.
action. 2. AFTER the filing of the
3. The resolution of such issue information/complaint, the
determines whether or not the accused may, within 5 days from
criminal action may proceed. the time he learns of its filing
ask for preliminary investigation.
WHERE TO FILE PETITION FOR
SUSPENSION BY REASON OF PURPOSES
PREJUDICIAL QUESTION 1. to determine whether a crime
1. Office of the prosecutor; or has been committed and
2. court conducting the preliminary whether there is probable cause
investigation; or to believe that the accused is
3. court where the criminal action guilty thereof;
has been filed for trial at any 2. to preserve evidence and keep
time before the prosecution the witnesses within the control
rests. of the State;
3. to determine the amount of bail,
if the offense is bailable.
RULE 112
PRELIMINARY INVESTIGATION PRELIMINARY INVESTIGATION:
PERSONAL STATUTORY RIGHT
Section 1. Preliminary Investigation The right to preliminary investigation is
defined; when required. a personal right covered by statute and
may be waived expressly or by
Preliminary Investigation - is an inquiry implication.
or proceeding to determine whether
there exists sufficient ground to Absence of preliminary investigation
engender a well-founded belief that a does not affect the jurisdiction of the
crime has been committed and that the court or invalidate the information if no
respondent is probably guilty thereof, objection was raised by the accused.
and should be held for trial. (Sec. 1,
Rule 112)

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
146

MEMORY AID IN REMEDIAL LAW

REMEDIES OF THE ACCUSED IF THERE


WAS NO PRELIMINARY INVESTIGATION
1. Refuse to enter a plea upon
arraignment and object to
further proceedings upon such
ground
2. Insist on a preliminary
investigation
3. File a certiorari, if refused
4. Raise lack of preliminary
investigation as error on appeal
5. File for prohibition

As preliminary investigation is NOT a


part of the trial, the dismissal of the
case by the investigator will not
constitute double jeopardy and will not
bar the filing of another complaint for
the same offense, but if re-filed, the
accused is entitled to another
preliminary investigation (U.S. vs.
Marfori, 35 Phil. 666).

Section 2. Officers authorized to


conduct preliminary investigation.

PERSONS AUTHORIZED TO CONDUCT A If respondent cannot be subpoenaed, or


PRELIMINARY INVESTIGATION if subpoenaed but does not submit his
1. Provincial or city fiscal and their counter-affidavit within 10 days,
assistants investigating officer shall resolve the
2. Judges of the MTC and MCTC complaint based on the evidence
3. National and regional state presented by the complainant.
prosecutors
4. Such other officers as may be RIGHTS OF RESPONDENT IN A
authorized by law such as: the PRELIMINARY INVESTIGATION
COMELEC, Ombudsman and 1. to submit counter-affidavits
PCGG 2. to examine evidence submitted
Filing of the complaint by the complainant
accompanied by the affidavits 3. to be present in the clarificatory
and supporting documents. hearing.

Within 10 days after the filing, the


investigating officer shall either
dismiss or issue subpoena.

If subpoena is issued,
respondent shall submit a
counter-affidavit and other
supporting documents within 10
days from receipt thereof.
Section 3. Procedure The Rules do not require the presence of
the respondent in the Preliminary
Investigation, what is required is that he
Hearing (optional). It shall be held
within 10 days from submission of
counter-affidavits or from the
expiration
REMEDIAL LAWofCthe period of their
OMMITTEE
submission.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

Resolution of
investigating prosecutor
San Beda College of Law
147

MEMORY AID IN REMEDIAL LAW

be given the opportunity to controvert respondent under immediate custody, in


the evidence of the complainant by order not to frustrate the ends of
submitting counter-affidavits. justice.

Section 6. When warrant of arrest may CONDITIONS BEFORE THE


issue INVESTIGATING MUNICIPAL TRIAL JUDGE
Probable Cause - presupposes a CAN ISSUE A WARRANT OF ARREST
reasonable ground for belief in the (Herrera, p. 282)
existence of facts warranting the 1. Have examined in writing and
proceedings complained of; under oath the complainant and
- an apparent his witnesses by searching
state of facts found to exist upon questions and answers; searching
reasonable inquiry which would induce a questions and answers such
reasonably intelligent and prudent man questions as may have the
to believe that the accused person had tendency to show the
committed the crime charged. commission of the crime and the
perpetrator thereof;
If the judge finds probable cause, he 2. Be satisfied that a probable
shall issue a warrant of arrest, or a cause exists; and
commitment order if the accused had 3. That there is a need to place the
already been arrested and hold him for respondent under immediate
trial. If the judge is satisfied that there custody in order not to frustrate
is no necessity for placing the accused the ends of justice.
under custody, he may issue summons
instead of warrant of arrest. If the MTC judge found probable cause
but did not believe that the aforesaid
The RTC judge need NOT personally conditions were met, he cannot be
examine the complaint and witnesses in compelled by mandamus to issue the
the determination of probable cause for same.
the issuance of the warrant of arrest. He
is only required to: REMEDY: The provincial fiscal, if he
1. Personally evaluate the report believes that the accused should be
and the supporting documents immediately placed in custody, may file
submitted during the preliminary the corresponding information so that
investigation by the fiscal; and the RTC may issue the necessary warrant
2. On the basis thereof he may: of arrest (Samulde vs. Salvani, Jr., G.R.
a) Dismiss; No. 78606, Sept. 26, 1988).
b) Issue warrant; or
c) Require further affidavits. While the judge may rely on the fiscals
certification thereof, the same is NOT
INSTANCES WHEN MTC MAY CONDUCT conclusive on him as the issuance of said
PRELIMINARY INVESTIGATION: warrant calls for the exercise of judicial
1. cases cognizable by the RTC may discretion and, for that purpose, the
be filed with the MTC for judge may require the submission of
preliminary investigation; affidavits of witnesses to aid him in
2. cases cognizable by the MTC arriving at the proper conclusion, OR he
because it is an offense where may require the fiscal to conduct further
the penalty prescribed by law is preliminary investigation or
at least four (4) years, two (2) reinvestigation.
months and one (1) day without
regard to the fine. INSTANCES WHEN WARRANT OF ARREST
In either situation, the MTC is NOT NECESSARY
authorized to issue a warrant of arrest if 1. if the accused is already under
there is necessity of placing the detention;

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
148

MEMORY AID IN REMEDIAL LAW

2. if the complaint or information The right to bail pending Preliminary


was filed after the accused was Investigation under Section 7, Rule 112,
lawfully arrested without a person lawfully arrested may post bail
warrant; before the filing of the information or
3. if the offense is punishable by even after its filing without waiving his
fine only. right to preliminary investigation,
provided that he asks for a preliminary
Section 7. When accused lawfully investigation by the proper officer within
arrested without warrant. the period fixed in the said rule (People
vs. Court of Appeals, May 29, 1995).
TWO SITUATIONS CONTEMPLATED
UNDER THIS RULE: Section 8. Records
1. When a person is lawfully
arrested without a warrant for Records of the preliminary investigation
an offense requiring a shall NOT automatically form part of the
preliminary investigation (sec. 1, records of the case. Courts are not
Rule 112) and no complaint or compelled to take judicial notice
information has yet been filed, thereof. It must be introduced as an
he may ask for a preliminary evidence.
investigation by signing a waiver
of the provisions of Art. 125 of Section 9. Cases not requiring a
the RPC in the presence of his preliminary investigation nor covered
counsel. by the Rule on Summary Procedure.
2. When the complaint or
information was filed without PROCEDURE TO BE FOLLOWED IN CASES
preliminary investigation, the WHICH DO NOT REQUIRE PRELIMINARY
accused may, within 5 days from INVESTIGATION
the time he learns of the filing
of the information, ask for a 1. Evaluate the evidence presented
preliminary investigation with 2. Conduct searching questions or
the same right to adduce answers
evidence in his favor in the 3. Require the submission of
manner prescribed in this Rule. additional evidence

The 5-day period is MANDATORY, failure For cases under the Revised Rules on
to file the motion within the said period Summary Procedure, no warrant shall be
amounts to waiver of the right to ask for issued except where the accused fails to
preliminary investigation. appear after being summoned.

Where the information was amended If the complaint is filed with the
without a new preliminary investigation prosecutor involving an offense
having been conducted, the 5-day period punishable by imprisonment of less than
is computed from the time the accused 4 years, 2 months and 1 day, the
learns of the filing of said amended procedure in Rule 112, Section 3 (a) shall
information. be observed.

Where the trial court has granted a If the complaint is filed with the MTC,
motion for reinvestigation, it must hold the same procedure under Rule 112,
in abeyance the arraignment and trial of Section 3 (a) shall be observed.
the
the accused until the prosecutor shall RULE 113
have conducted and made a report on ARREST
the result of such reinvestigation.
Section 1. Definition of arrest.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
149

MEMORY AID IN REMEDIAL LAW

Upon arrest, the following may be


Arrest the taking of a person into confiscated from the person arrested:
custody in order that he may be bound 1. Objects subject of the offense or
to answer for the commission of an used or intended to be used in
offense (Sec. 1 Rule 113). the commission of the crime;
2. Objects which are the fruits of
Modes of Arrest the crime;
1. arrest by virtue of a warrant 3. Those which might be used by
2. arrest without a warrant under the arrested person to commit
exceptional circumstances as violence or to escape;
may be provided by statute (Sec. 4. Dangerous weapons and those
5, Rule 113). which may be used as evidence
in the case.
ESSENTIAL REQUISITES OF A VALID
WARRANT OF ARREST Section 5. Arrest without warrant;
1. It must be issued upon probable when lawful
cause which must be determined
personally by a judge after LAWFUL WARRANTLESS ARREST
examination under oath or 1. When, IN HIS PRESENCE, the
affirmation of the complainant person to be arrested has
and the witnesses he may committed, is actually
produce committing, or is attempting to
2. The warrant must particularly commit an offense (in flagrante
describe the person to be seized delicto arrests);
2. When an offense has in fact just
A warrant of arrest has NO expiry date. been committed, and he has
It remains valid until arrest is effected probable cause to believe based
or warrant is lifted. on PERSONAL KNOWLEDGE of
fact and circumstance that the
REMEDY FOR WARRANTS IMPROPERLY person to be arrested has
ISSUED committed it; (Doctrine of Hot
Where a warrant of arrest was Pursuit)
improperly issued, the proper remedy is 3. When the person to be arrested
a petition to quash it, NOT a petition for is a prisoner who has escaped
habeas corpus, since the court in the from a penal establishment or
latter case may only order his release place where he is serving final
but not enjoin the further prosecution or judgment or temporarily
the preliminary examination of the confined while his case is
accused (Alimpoos vs. Court of Appeals, pending, or has escaped while
106 SCRA 159). being transferred from one
confinement to another.
Posting of bail does not bar one from 4. Where a person who has been
questioning illegal arrest (Section 26, lawfully arrested escapes or is
Rule 114, Rules of Court). rescued (Sec. 13, Rule 113);
5. By the bondsman for the purpose
Section 2. Arrest; how made. of surrendering the accused
(Sec. 23, Rule 114); and
MODES OF EFFECTING ARREST 6. Where the accused attempts to
1. By an actual restraint of the leave the country without
person to be arrested. permission of the court (Sec. 23,
2. By his submission to the custody Rule 114).
of the person making the arrest. If the arrest was effected without
warrant, the arresting officer must
comply with the provisions of Art. 125 of

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
150

MEMORY AID IN REMEDIAL LAW

the RPC, otherwise, he may be held Section 9. Method of arrest by private


criminally liable for arbitrary detention person.
under Article 124 of the RPC.
Citizens arrest - arrest effected by a
RULES ON ILLEGALITY OF ARREST private person.
1. An accused who enters his plea
of NOT guilty and participates in Method of Exception to
the trial waives the illegality of arrest the rule on
the arrest. Objection to the giving
illegality must be raised before information
arraignment, otherwise it is
deemed waived, as the accused, Sec. 7 The officer 1. when the
in this case, has voluntarily shall inform person to be
submitted himself to the the person to arrested flees;
jurisdiction of the court. be arrested 2. when he
2. Illegality of warrantless arrest the cause of forcibly resists
maybe cured by filing of an the arrest and before the
information in court and the the fact that officer has an
subsequent issuance by the the warrant opportunity to
judge of a warrant of arrest. has been inform him;
3. Once a person has been duly issued for his and
charged in court, he may no arrest.
longer question his detention by 3. when the
petition for habeas corpus, his Note: The giving of such
remedy is to quash the officer need information
information and/or the warrant not have the will imperil the
of arrest. warrant in his arrest.
possession at
Section 6. Time of making arrest. the time of
the arrest BUT
Unlike a search warrant which must be must show the
served only in daytime, an arrest may be same after the
made on any day and at any time of the arrest, if the
day or night, even on a Sunday. This is person
justified by the necessity of preserving arrested so
the public peace. requires.

Section 7. Method of arrest of officer Sec. 8 The officer 1. when the


by virtue of warrant. shall inform person to be
the person to arrested is
Under this rule, an arrest may be made be arrested of engaged in the
even if the police officer is not in his authority commission of
possession of the warrant of arrest and the cause an offense or is
(Mallari vs. Court of Appeals, 265 SCRA of the arrest pursued
456). Exhibition of the warrant prior to w/out a immediately its
the arrest is not necessary. However, if warrant commission;
after the arrest, the person arrested so 2. when he
requires, the warrant shall be shown to has escaped,
him as soon as practicable. flees, or
forcibly resists
Section 8. Method of arrest by officer before the
without warrant. officer has an
opportunity to
so inform him;

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
151

MEMORY AID IN REMEDIAL LAW

and Generally, a lawful arrest may be made


3. when the anywhere, even on private property or in
giving of such a house. This rule is applicable both
information where the arrest is under a warrant, and
will imperil the where there is valid warrantless arrest.
arrest.
Section 12. Right to break out of the
Sec. 9 The private 1. when the building or enclosure to effect release.
person shall person to be
inform the arrested is A private person making an arrest
person to be engaged in the CANNOT break in or out of a building or
arrested of commission of enclosure because only officers are
the intention an offense or is allowed by law to do so.
to arrest him pursued
and the cause immediately its Section 13. Arrest after escape or
of the arrest. commission; rescue.
2. when he
Note: Private has escaped, Where a person lawfully arrested
person must flees, or escapes or is rescued, any person may
deliver the forcibly resists immediately pursue or retake him
arrested before the without a warrant at any time and in any
person to the officer has an place within the country. The pursuit
nearest police opportunity to must be immediate.
station or jail, so inform him;
otherwise, he and Section 14. Right of Attorney or
may be held 3. when the relative to visit person arrested.
criminally giving of such
liable for information RA 7438 defined certain rights of persons
illegal will imperil the arrested, detained, or under custodial
detention. arrest. investigation, with the penalties for
violations thereof.
Section 10. Officer may summon
assistance.
RULE 114
Only an officer making the arrest is BAIL
governed by the rule. It does not cover a
private individual making an arrest. Section 1. Bail defined.

Section 11. Right of officer to break Bail -- the security given for the release
into building or enclosure. of a person in custody of the law,
furnished by him or a bondsman,
Requisites before an officer can break conditioned upon his appearance before
into a building or enclosure to make an any court as required under the
arrest: conditions specified by the rule (Sec. 1,
1. That the person to be arrested is Rule 114).
or is reasonably believed to be in
said building;
2. That he has announced his
authority and purpose for A person is in the custody of law when
entering therein; he has been either arrested or otherwise
3. That he has requested and been deprived of his freedom or when he has
denied admittance. voluntarily submitted himself to the
jurisdiction of the court by surrendering
to the proper authorities.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
152

MEMORY AID IN REMEDIAL LAW

2. The accused shall appear before


All persons, except those charged with the proper courts whenever so
offenses punishable by reclusion required by the court or these
perpetua when evidence of guilt is Rules;
strong, shall, before conviction, be 3. The failure of the accused to
bailable by sufficient sureties, or be appear at the trial without
released on recognizance as may be justification despite due notice
provided by law (Section 13, Article III, shall be deemed a waiver of his
1987 Constitution). right to be present thereat. In
such case, the trial may proceed
Forms of bail: in absentia;
1. corporate surety 4. The bondsman shall surrender
2. property bond the accused to court for
3. cash deposit execution of the final judgment.
4. recognizance
No additional conditions can be imposed.
BAILBOND RECOGNIZANCE
An obligation under an obligation of A detention prisoner who escaped waives
seal given by the record, entered into his right to cross-examination (Jimenez
accused with one or before some court or v. Nazareno).
more sureties, and magistrate duly
made payable to the authorized to take it, By filing a fake bail bond, an appellant is
proper officer with with the condition to deemed to have escaped from
the condition to be do some particular confinement during the pendency of his
void upon act; appeal and in the normal course of
performance by the things, his appeal should be dismissed.
accused of such acts
as he may legally be No release or transfer except on court
required to perform order or bail.
No person under detention by legal
Prosecution witnesses may also be process shall be released or transferred
required to post bail to ensure their except upon order of the court or when
appearance at the trial of the case he is admitted to bail (Sec. 3).
where:
1. there is a substitution of Section 4. Bail, a matter of right;
information (Sec. 4, Rule110), exception.
and
2. where the court believes that a When a matter of right:
material witness may not appear 1. before or after conviction in the
at the trial (Sec. 14, Rule 119). lower courts; AND
2. before conviction by the RTC,
Section 2. Conditions of the bail; EXCEPT when the imposable
requirements. penalty is death, reclusion
perpetua or life imprisonment
CONDITIONS OF BAIL and evidence of guilt is strong.
1. The undertaking shall be
effective upon approval, and, In instances where bail is a matter of
unless cancelled, shall remain in right and the bail to be granted is based
force at all stages of the case on the recommendation of the
until promulgation of the prosecution as stated in the information
judgment of the RTC, or complaint, a hearing is NOT necessary.
irrespective of whether the case
was originally filed in or But where, however, there is a reduction
appealed to it; of bail as recommended or after

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
153

MEMORY AID IN REMEDIAL LAW

conviction by the RTC of an offense not not more than 20 years is


punishable by death, reclusion perpetua, imposed, and not one of the
or life imprisonment wherein the grant circumstances below is present
of bail is discretionary, there must be a and proved, bail is a matter of
hearing before a bail is granted in order discretion (Sec.5).
to afford the prosecution the chance to a) Recidivism, quasi-recidivism
oppose it (Bangayan vs. Butacan, 345 or habitual delinquency or
SCRA 301). commission of crime
aggravated by the
The prosecution cannot adduce evidence circumstances of reiteration.
for the denial of bail where it is a matter b) Previous escape from legal
of right. However, where the grant of confinement, evasion of
bail is discretionary, the prosecution may sentence or violation of the
show proof to deny the bail. conditions of bail without
valid justification.
An extraditee is not entitled to bail. The c) Commission of the offense
Constitutional provision on Bail as well while on probation, parole or
as Sec. 4 of Rule 114 applies only when a under conditional pardon
person has been arrested and detained d) Circumstance of the accused
for violation of Philippine Criminal laws. or his case indicates the
It does not apply to extradition probability of flight if
proceedings because extradition courts released on bail
do not render judgments of conviction or e) Undue risk of commission of
acquittal (Govt. of US vs. Judge another crime by the
Purganan, Sept. 24, 2002). accused during pendency of
appeal.
Section 5. Bail, when 6. After conviction by the RTC
discretionary. imposing a penalty of
imprisonment exceeding 6 years
RULES ON AVAILABILITY OF BAIL but not more than 20 years and
1. Regardless of stage of the any of the circumstance
criminal prosecution, no bail enumerated above and other
shall be allowed if the accused is similar circumstance is present
charged with a capital offense or and proved, no bail shall be
an offense punishable by granted (Sec.5);
reclusion perpetua AND the 7. After judgment has become final
evidence of guilt is strong (Sec. unless accused applied for
7); probation before commencing to
2. Before and after conviction by serve sentence of penalty and
the MTC, Municipal Trial Court or offense within purview of
MCTC, bail is a matter of right probation law (Sec. 24).
(Sec.4).
3. Before conviction by the RTC Section 6. Capital Offense, defined.
whether in the exercise of its
original or appellate jurisdiction, Capital Offense is an offense which,
bail is a matter of right. (Sec.4) under the law existing at the time of its
4. Upon conviction by the RTC of an commission AND at the time of the
offense not punishable by death, application to be admitted to bail, may
reclusion perpetua or life be punished with death.
imprisonment, admission to bail
is discretionary (Sec. 5); If the law at the time of commission
5. After conviction by the RTC does not impose the death penalty, the
wherein a penalty of subsequent amendment of the law
imprisonment exceeding 6 but increasing the penalty cannot apply to

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
154

MEMORY AID IN REMEDIAL LAW

the case, otherwise it would be ex post 1. Financial ability of the accused


facto, and penalties are determined by to give bail;
the law at the time of the commission of 2. Nature and circumstances of the
the offense. offense;
3. Penalty for the offense charged;
If the law at the time of the application 4. Character and reputation of the
for bail has amended the prior law which accused;
imposed the death penalty by reducing 5. Age and health of the accused;
such penalty, such favorable law 6. Weight of evidence against the
generally has a retroactive effect. accused;
7. Probability of the accused
Section 7. Capital Offense not bailable. appearing at the trial;
8. Forfeiture of other bail;
Capital offense or those punishable by 9. The fact that the accused was a
reclusion perpetua, life imprisonment or fugitive from justice when
death are NOT BAILABLE when evidence arrested; and
of guilt is strong. 10. Pendency of other cases when
EXCEPTION: If the accused charged with the accused is on bail
a capital offense is a minor. Bail must not be in a prohibitory
amount. Excessive bail is not to be
Section 8. Burden of proof in bail required for the purpose of preventing
application. the accused from being admitted to bail.

The hearing should be summary or Section 11. Property, how posted.


otherwise in the discretion of the court
but the right of the prosecution to Property Bond is an undertaking
control the quantum of evidence and the constituted as a lien on the real property
order of presentation of witnesses must given as security for the amount of the
be equated with the purpose of the bail (sec11);
hearing to determine the bailability of
the accused. It is required that the annotation of a
lien on the land records of the property
The burden of proving that the evidence posted as bail, otherwise the property
of guilt is strong lies within the fence of bail bond shall be cancelled.
the prosecution. (Comia vs. Antona, 337
SCRA 656) Section 12. Qualifications of sureties in
property bond.
Evidence of guilt is strong when proof is Philippine residency is required of a
evident or the presumption of guilt is property bondsman. The reason for this
strong. The test is NOT whether the is that bondsmen in criminal cases,
evidence establishes guilt beyond residing outside of the Philippines, are
reasonable doubt but rather whether it not within the reach of the processes of
shows its courts (Villaseor vs. Abano, 21 SCRA
312).

shows evident guilt or a great


presumption of guilt. Section 13. Justification of sureties.

Section 9. Amount of bail; guidelines. The purpose of the rule requiring the
FACTORS TO BE CONSIDERED IN FIXING affidavit of qualification by the surety
THE REASONABLE AMOUNT OF BAIL before the judge, is to enable the latter
(NOT EXCLUSIVE) to determine whether or not the surety

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
155

MEMORY AID IN REMEDIAL LAW

possesses the qualification to act as


such, especially his financial worth. 3. In case of a
youthful offender
The justification being under oath, any held for physical or
falsity introduced thereto by the surety mental examination,
upon a matter of significance would trial or appeal, if
render him liable for perjury. unable to furnish bail
and under the
Section 14. Deposit of cash as bail. circumstances under
PD 603, as amended
EFFECT OF DEPOSITING CASH AS BAIL
Accused shall be discharged from ON REDUCED A person in custody for a
custody as it is considered as bail. BAIL OR ON HIS period equal to or more
OWN than the minimum of the
Section 15. Recognizance RECOGNIZANCE principal penalty
prescribed for the
Recognizance - an obligation of record, offense charged, without
entered into before some court or application of the
officer authorized to take it with a indeterminate sentence
condition to do some particular act and law or any modifying
the accused is often allowed to obligate circumstance shall be
himself to answer the charge. released on reduced bail
or on his own
Section 16. Bail when not required; recognizance.
reduced bail on recognizance. General Rule: no bail
UNDER THE Exception:
Instances wherein the accused may be REVISED RULES 1. When a warrant of
released on recognizance, without ON SUMMARY arrest is issued for
putting bail or on reduced bail: PROCEDURE failure to appear when
required by the court
2. When the accused
CAN BE 1. Offense charged is - is a recidivist;
RELEASED violation of an - is a fugitive from
WITHOUT BAIL ordinance, light justice;
felony or a criminal - is charged with
offense, the physical injuries
imposable penalty - does not reside in the
wherefore does not place where the
exceed 6 months of violation of the law or
imprisonment and/or ordinance is
fine of P 2,000 under committed; or
R.A.6036. -has not reside in the
place where the
2. Where the accused violation of the law or
has applied for ordinance is
probation and committed; or
before the same has -has no known
been resolved but no residence
bail was filed or the Section 17. Bail, where filed.
accused is incapable
of filing one, in 1. May be filed with the court
which case he may where the case is pending, or in
be released on the absence or unavailability of
recognizance the judge thereof, with another

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
156

MEMORY AID IN REMEDIAL LAW

branch of the same court within the amount of the bail, provided such
the province or city. amount would not be excessive. (Sy
2. Whenever the grant of bail is a Guan vs. Amparo, 79 Phil. 670)
matter of discretion, or the
accused seeks to be released on Section 21. Forfeiture of bail.
recognizance,
3. the application therefor may be Within 30 days from the failure of the
filed only in the particular court accused to appear in person as required,
where the case is pending, the bondsmen must:
whether for preliminary A. PRODUCE the body of their
investigation, trial or appeal. principal or give the reason for
4. Any person in custody who is not his non-production; AND
yet charged in court may apply B. EXPLAIN why the accused did not
for bail with any court in the appear before the court when
province, city or municipality first required to do so.
where he is held.
The 30-day period granted to the
Section 18. Notice of application to bondsmen to comply with the two
prosecutor. requisites for the lifting of the order of
Such notice is necessary because the forfeiture cannot be shortened by the
burden of proving that the evidence of court but may be extended for good
guilt is strong is on the prosecution and cause shown.
that the discretion of the court in .
admitting the accused to bail can only ORDER OF FORFEITURE VS. ORDER OF
be exercised after the fiscal has been CONFISCATION
heard regarding the nature of the 1. an ORDER OF FORFEITURE is
evidence in his possession. (People vs. conditional and interlocutory,
Raba, 130 Phil. 384) there being something more to
be done such as the production
Section 19. Release on bail. of the accused within 30 days as
provided by the rules an order of
Once the accused has been admitted to forfeiture is not appealable
bail, h is entitled to immediate release 2. an ORDER OF CONFISCATION is
from custody. An officer who fails or not independent of the order of
refuses to release him from detention the order of forfeiture. It is a
notwithstanding the approval by the judgment ultimately determining
proper court of his bailbond, may be the liability of the surety
held liable under Article 126 of the thereunder, and therefore final
Revised Penal Code for delaying release. and execution may issue at once.

Section 20. Increase or reduction of Section 22. Cancellation of bailbond.


bail.
INSTANCES WHEN BAIL BOND CAN BE
The guidelines provided for in Section 9, CANCELLED
Rule 114, in fixing the amount of bail are 1. upon application by the
also applicable in reducing or increasing bondsman with notice to the
the bail previously fixed. fiscal and upon surrender of the
accused; and
Where the offense is bailable as a 2. upon proof that the accused
matter of right, the mere probability died.
that the accused will escape, or even if
he had previously escaped while under The bail bond is automatically cancelled
detention, does not deprive him of his upon the acquittal of the accused or
right to bail. The remedy is to increase dismissal of the case or execution of the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
157

MEMORY AID IN REMEDIAL LAW

final order of conviction, without recognizance to the custody of a


prejudice to any liability on the bond responsible member of the community
incurred prior to their discharge.
The application for probation must be
METHODS BY WHICH SURETIES MAY filed within the period of perfecting an
RELIEVE THEMSELVES FROM appeal. Such filing operates as a waiver
RESPONSIBILITIES of the right to appeal. The accused in
a. Arrest the principal and deliver the meantime, is entitled to be released
him to the proper authorities; on bail or recognizance. (Sec. 4, PD 968,
b. They may cause his arrest to be as amended)
made by any police officer or
other person of suitable age or Section 25. Court supervision of
discretion; or detainees.
c. By endorsing the authority to
arrest upon a certified copy of The employment of physical,
the undertaking and delivering it psychological or degrading punishment
to such officer or person against any prisoner or detainee or the
use of substandard or inadequate penal
Section 23. Arrest of accused out on facilities under subhuman conditions
bail. shall be dealt with by law (Section 19(2),
Article III, 1987 Constitution).
An accused released on bail may be re-
arrested without a warrant if he Section 26. Bail not a bar to objection
attempts to depart from the Philippines on illegal arrest, lack of or irregular
without prior permission of the court preliminary investigation.
where the case is pending.
AN APPLICATION FOR OR ADMISSION TO
Section 24. No bail after final BAIL SHALL NOT BAR THE ACCUSED
judgment; exception. a. from challenging the validity of
his arrest OR
GENERAL RULE: The finality of the b. legality of the warrant issued
judgment terminates the criminal therefore, OR
proceeding. Bail becomes of no avail. c. from assailing the regularity or
The judgment contemplated is a questioning the absence of
judgment of conviction. The judgment is preliminary investigation of the
final if the accused does not appeal the charge against him, PROVIDED,
conviction. he raises them before entering
his plea.
No bail shall be granted after judgment,
if the case has become final even if RULE 115
continued confinement of the accused RIGHTS OF THE ACCUSED
would be detrimental or dangerous to his
health. The remedy would be to submit This rule enumerates the rights of a
him to medical treatment or person accused of an offense, which are
hospitalization. both constitutional as well as statutory,
save the right to appeal, which is purely
statutory in character.

EXCEPTION: If the accused applies for Section 1. Rights of the accused at the
probation he may be allowed temporary trial.
liberty under his existing bail bond, or if
no bail was filed, or is incapable of filing
one, he may be released on

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
158

MEMORY AID IN REMEDIAL LAW

1. TO BE PRESUMED INNOCENT 5. Promulgation of judgment


In all criminal prosecutions, the accused EXCEPT when the conviction is
is presumed innocent until the contrary for a light offense, in which
is proved beyond reasonable doubt. case, it may be pronounced in
the presence of his counsel or a
Reasonable Doubt is that doubt representative
engendered by an investigation of the 6. When ordered by the court for
whole proof and an inability, after such purposes of identification
investigation, to let the mind rest easy
upon the certainty of guilt. Absolute Not applicable in SC and CA - The law
certainty of guilt is not demanded by the securing to an accused person the right
law to convict of any criminal charge but to be present at every stage of the
moral certainty is required, and this proceedings has no application to the
certainty is required as to every proceedings before the Court of Appeals
proposition of proof requisite to and the Supreme Court nor to the entry
constitute the offense. and promulgation of their judgments The
defendant need not be present in court
Equipoise rule where the evidence of during the hearing of the appeal. (Sec. 9
the parties in a criminal case are evenly Rule 124)
balanced, the constitutional presumption
of innocence should tilt in favor of the Accused may waive his right to be
accused and must be acquitted. present during the trial. HOWEVER, his
presence may be compelled when he is
2. TO BE INFORMED OF THE NATURE to be identified. (Aquino, Jr. vs. Military
AND THE CAUSE OF THE ACCUSATION Commission, 63 SCRA 546)
AGAINST HIM.
An accused cannot be convicted of an EFFECTS OF WAIVER OF THE RIGHT TO
offense unless it is clearly charged in the APPEAR BY THE ACCUSED
complaint or information. To convict him 1. waiver of the right to present
of an offense other than that charged in evidence;
the complaint or information would be a 2. prosecution can present
violation of this constitutional right evidence if accused fails to
(People vs. Ortega, 276 SCRA 166). appear;
3. the court can decide without
When a person is charged in a complaint accuseds evidence.
with a crime and the evidence does not
show that he is guilty thereof, but does TRIAL IN ABSENTIA
show that he is guilty of some other It is important to state that the provision
crime or a lesser offense, the court may of the Constitution authorizing the trial
sentence e him for the lesser offense, in absentia of the accused in case of his
PROVIDED the lesser offense is a cognate non-appearance AFTER ARRAIGNMENT
offense and is included in the complaint despite due notice simply means that he
with the court. thereby waives his right to meet the
witnesses face to face among others.
3. TO BE PRESENT AND DEFEND IN
PERSON AND BY COUNSEL AT EVERY Such waiver of a right of the accused
STAGE OF THE PROCEEDING does not mean a release of the accused
from his obligation under the bond to
appear in court whenever so required.
The accused may waive his right but not
THE PRESENCE OF THE ACCUSED IS his duty or obligation to the court.
REQUIRED ONLY
4. During arraignment (Sec. 1b, REQUIREMENTS FOR TRIAL IN ABSENTIA
rule 116) 1. accused has been arraigned

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
159

MEMORY AID IN REMEDIAL LAW

2. he has been duly notified of the ordinary witness who can be cross-
trial examined as to any matter stated in the
3. his failure to appear is direct examination or connected
unjustified therewith (Section 6, Rule 132). His
failure to testify is not taken against him
An escapee who has been duly tried in but failure to produce evidence in his
absentia waives his right to present behalf is considered against him (U.S.
evidence on his own behalf and to vs. Bay, 97 Phil. 495).
confront and cross-examine witnesses
who testified against him. (Gimenez vs. F. RIGHT AGAINST SELF-
Nazareno, 160 SCRA 1) INCRIMINATION
The accused is protected under this rule
D. RIGHT TO COUNSEL from questions which tend to incriminate
The right covers the period beginning him, that is, which may subject him to
from custodial investigation, well into penal liability.
the rendition of the judgment and even
on appeal. (People vs. Serzo, Jr., 274 The right may be waived by the failure
SCRA 553) of the accused to invoke the privilege at
the proper time, that is, AFTER the
If during the investigation the assisting incriminating question is asked and
lawyer left, or come and go, the before his answer;
statement signed by the accused is still
inadmissible because the lawyer should The privilege of the accused to be
assist his client from the time the exempt from testifying as a witness
confessant answers the first question involves a prohibition against testimonial
asked by the investigating officer until compulsion only and the production by
the signing of the extrajudicial the accused of incriminating documents,
confession. (People vs. Morial, 363 SCRA and articles demanded from him. (U.S.
96) vs. Tan Teng, 23 Phil. 145)

The right to counsel and the right to EXCEPTIONS: immunity statutes such as:
remain silent do not cease even after a 1. RA 1379 Forfeiture of Illegally
criminal complaint/information has obtained wealth
already been filed against the accused, 2. RA 749 Bribery and Graft cases
AS LONG AS he is still in custody.
RIGHT OF THE ACCUSED AGAINST SELF-
The duty of the court to appoint a INCRIMINATION VS. RIGHT OF THAT OF
counsel de oficio when the accused has AN ORDINARY WITNESS
no legal counsel of choice and desires to The ordinary witness may be compelled
employ the services of one is to take the witness stand and claim the
MANDATORY only at the time of privilege as each question requiring an
arraignment. (Sec. 6 Rule 116) incriminating answer is shot at him, an
accused may altogether refuse to take
E. TO TESTIFY AS WITNESS IN HIS OWN the witness stand and refuse to answer
BEHALF any and all questions.
A denial of the defendants right to
testify in his behalf would constitute an G. RIGHT TO CONFRONT AND CROSS-
unjustifiable violation of his EXAMINE THE WITNESSES AGAINST HIM
constitutional right. (People vs. AT TRIAL
Santiago, 46 Phil. 734)
Confrontation is the act of setting a
If the accused testifies, he may be cross- witness face-to-face with the accused so
examined but ONLY on matters covered that the latter may make any objection
by his direct examination, unlike an he has to the witness, and the witness

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
160

MEMORY AID IN REMEDIAL LAW

may identify the accused, and this must IMPARTIAL TRIAL


take place in the presence of the court Due process of law requires a hearing
having jurisdiction to permit the before an impartial and disinterested
privilege of cross-examination. tribunal, and that every litigant is
entitled to nothing less than the cold
The main purpose of the right to neutrality of an impartial judge. (Mateo,
confrontation is to secure the Jr. vs. Villaluz, 50 SCRA 180)
opportunity of cross-examination and the
secondary purpose is to enable the judge Public trial one held openly or
to observe the demeanor of witnesses. publicly; it is sufficient that the relatives
and friends who want to watch the
In any criminal proceeding, the proceedings are given the opportunity to
defendant enjoys the right to have witness the proceedings.
compulsory process to secure the
attendance of witnesses and the EXCLUSION OF THE PUBLIC IS VALID
production of evidence in his behalf. WHEN:
1. evidence to be produced is
H. RIGHT TO SPEEDY, IMPARTIAL AND offensive to decency or public
PUBLIC TRIAL morals;
The right to a speedy trial is intended to 2. upon motion of the accused;
avoid oppression and to prevent delay by (Sec. 21, Rule 119)
imposing on the courts and on the
prosecution an obligation to proceed RULE ON TRIAL BY PUBLICITY
with reasonable dispatch. The right of the accused to a fair trial is
not incompatible to a free press.
The courts, in determining whether the Pervasive publicity is not per se as
right of the accused to a speedy trial has prejudicial to the right to a fair trial. To
been denied, should consider such facts warrant a finding of prejudicial publicity,
as the length of the delay, the accuseds there must be allegations and proof that
assertion or non-assertion of his right, the judges have been unduly influenced,
and the prejudice to the accused not simply that they might be, by the
resulting from the delay. barrage of publicity. (People vs.
Teehankee, 249 SCRA 54)
There is NO violation of the right where
the delay is imputable to the accused. I. RIGHT TO APPEAL ON ALL CASES
(Solis vs. Agloro, 64 SCRA 370) ALLOWED BY LAW AND IN THE MANNER
PRESCRIBED BY LAW.
REMEDIES AVAILABLE TO THE ACCUSED The right to appeal from a judgment of
WHEN HIS RIGHT TO A SPEEDY TRIAL IS conviction is fundamentally of statutory
VIOLATED origin. It is not a matter of absolute
1. He should ask for the trial of the right, independently of constitutional or
case not for the dismissal; statutory provisions allowing such
2. Unreasonable delay of the trial appeal.
of a criminal case as to make the
detention of defendant illegal WAIVER OF THE RIGHT TO APPEAL
gives ground for habeas corpus The right to appeal is personal to the
as a remedy for obtaining accused and similarly to other rights of
release so as to avoid detention kindred nature, it may be waived either
for a reasonable period of time expressly or by implication. HOWEVER,
3. Accused would be entitled to where death penalty is imposed, such
relief in a mandamus proceeding right cannot be waived as the review of
to compel the dismissal of the the judgment by the COURT OF APPEALS
information. is automatic and mandatory (A.M. NO.
00-5-03-SC).

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
161

MEMORY AID IN REMEDIAL LAW

3. 80 days for the third 12 month


period.
THE SPEEDY TRIAL ACT OF 1998
(RA 8493)
RULE 116
DUTY OF THE COURT AFTER ARRAIGNMENT AND PLEA
ARRAIGNMENT OF AN ACCUSED
Court SHALL order a pre-trial conference Section 1. Arraignment and plea; how
to consider the following: made.
1. plea bargaining;
2. stipulation of facts; Arraignment the formal mode of
3. marking for identification of implementing the constitutional right of
evidence of parties; the accused to be informed of the
4. waiver of objections to nature of the accusation against him.
admissibility of evidence; and
5. such other matter as will WHERE AND HOW MADE:
promote a fair and expeditious 1. Before the court where the
trial; complaint or information has
been filed or assigned for trial;
TIME LIMIT FOR THE TRIAL OF CRIMINAL 2. in open court, by the judge or
CASES: SHALL NOT EXCEED 180 days clerk by furnishing the accused a
from the first day of trial, HOWEVER, copy of the complaint or
this rule is NOT ABSOLUTE, for the law information with the list of the
provides for the following EXCEPTIONS: witnesses, reading it in a
1. those governed by the Rules on language or dialect known to him
Summary Procedure; or and asking him of his plea;
2. where the penalty prescribed by
law DOES NOT EXCEED 6 months RULES:
imprisonment or a fine of P1,000 1. Trial in absentia is allowed only
or both; AFTER arraignment;
3. those authorized by the Chief 2. Judgment is generally void if the
Justice of the SC; accused has not been arraigned;
3. There can be no arraignment in
PERIOD FOR ARRAIGNMENT OF THE absentia (accused must
ACCUSED personally enter his plea);
Within 30 days from the filing of the 4. if the accused went to trial
information, or from the date the without arraignment, but his
accused appealed before the counsel had the opportunity to
justice/judge/court in which the charge cross-examine the witness of the
is pending, whichever date last occurs. prosecution and after the
prosecution he was arraigned the
defect was cured;

WHEN SHALL TRIAL COMMENCE AFTER


ARRAIGNMENT If an information is amended
Within 30 days from arraignment, MATERIALLY, arraignment on the
HOWEVER, it may be extended BUT only: amended information is MANDATORY,
1. for 180 days for the first 12 except if the amendment is only as to
calendar month period from the form;
effectivity of the law;
2. 120 days for the second 12 Plea the matter which the accused, on
month period; and his arraignment, alleges in answer to the
charge against him.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
162

MEMORY AID IN REMEDIAL LAW

2. When the accused did not fully


PERIOD TO PLEA understand the meaning and
When the accused is under preventive consequences of his plea.
detention: his case shall be raffled and 3. Where the information is
its records transmitted to the judge to insufficient to sustain conviction
whom the case was raffled within 3 days of the offense charged.
from the filing of the information or 4. Where the information does not
complaint and the accused arraigned charge an offense, any
within 10 days from the date of the conviction thereunder being
raffle. The pre-trial conference of his void.
case shall be held within 10 days after 5. Where the court has no
arraignment. jurisdiction.

When the accused is NOT under Section 2. Plea of Guilty to a lesser


preventive detention: unless a shorter offense.
period is provided by special law or
Supreme Court circular, the arraignment An accused may enter a plea of guilty to
shall be held within 30 days from the a lesser offense PROVIDED that there is
date the court acquires jurisdiction over consent of the offended party and the
the person of the accused. The time of prosecutor to the plea of guilty to a
the pendency of a motion to quash, or lesser offense which is necessarily
for bill of particulars, or other causes included in the offense charged.
justifying suspension of the arraignment,
shall be excluded in computing the After arraignment but BEFORE trial, the
period. accused may still be allowed to plead
guilty to a lesser offense after
WHEN SHOULD A PLEA OF NOT GUILTY withdrawing his plea of not guilty. In this
BE ENTERED plea of guilty to a lesser offense, no
1. when the accused so pleaded amendment of the complaint or
2. when he refuses to plead information is necessary.
3. where in admitting the act
charged, he sets up matters of If the accused entered a plea to a lesser
defense or with lawful offense WITHOUT the consent of the
justification offended party and the prosecutor AND
4. when he enters a conditional he was convicted, his subsequent
plea of guilt conviction of the crime charged would
5. where, after a plea of guilt, he NOT place him in Double Jeopardy.
introduces evidence of self-
defense or other exculpatory Section 3. Plea of guilty to capital
circumstances offense; reception of evidence.
6. when the plea is indefinite or
ambiguous When the accused pleads guilty to a
An unconditional plea of guilt admits of capital offense, the court shall:
the crime and all the attendant 1. conduct a searching inquiry into
circumstances alleged in the information the voluntariness and full
including the allegations of conspiracy comprehension of the
and warrants of judgment of conviction consequences of his plea;
without need of further evidence 2. require the prosecution to prove
EXCEPT: (CAI DN) his guilt and the precise degree
1. Where the plea of guilty was of his culpability;
compelled by violence or 3. ask the accused if he desires to
intimidation. present evidence in his behalf
and allow him to do so if he
desires.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
163

MEMORY AID IN REMEDIAL LAW

1. It must inform the defendant


To constitute searching inquiry, the that it is his right to have an
questioning must focus on: attorney before being arraigned;
1. the voluntariness of the plea; 2. After giving him such
and information, the court must ask
2. Whether the accused understood him if he desires the aid of an
fully the consequence of his attorney;
plea. 3. If he desires and is unable to
employ one, the court must
Section 5. Withdrawal of improvident assign an attorney de oficio to
plea of guilty. defend him; and
4. If the accused desires to procure
Plea of Guilty an unconditional an attorney of his own, the court
admission of guilt, freely, voluntarily and must grant him reasonable time
made with full knowledge of the therefor.
consequences and meaning of his act and
with a clear understanding of the precise
nature of the crime charged in the Section 7. Appointment of counsel de
complaint or information; oficio.

INSTANCES OF IMPROVIDENT PLEA PURPOSE


1. plea of guilty was compelled by To secure to the accused, who is unable
violence or intimidation to engage the services of an attorney of
2. the accused did not fully his own choice, effective representation
understand the meaning and by making it imperative on the part of
consequences of his plea the court to consider in the appointment
3. insufficient information to of counsel de oficio, the gravity of the
sustain conviction of the offense offense and the difficulty of the
charged questions likely to arise in the case vis--
4. information does not charge an vis the ability and experience of the
offense, any conviction prospective appointee.
thereunder being void
5. court has no jurisdiction
Section 8. Time for counsel de oficio to
At any time before the judgment of prepare for arraignment.
conviction becomes final, the court may
permit an improvident plea of guilty to As to what is reasonable time, it
be withdrawn and be substituted by a depends upon the circumstances
plea of not guilty. surrounding the case like the gravity of
the offense, complexity of the
The withdrawal of a plea of guilty is not allegations in the complaint or
a matter of right to the accused but of information, whether a motion to quash
sound discretion to the trial court. or a bill of particulars has to be filed,
(People vs. Lambrino, 103 Phil. 504) and other similar considerations.

Section 6. Duty of the court to inform


accused of his right to counsel. Section 9. Bill of particulars.

DUTIES OF THE COURT WHEN THE Accused may, AT or BEFORE arraignment,


ACCUSED APPEARS BEFORE IT WITHOUT move for a bill of particulars to enable
COUNSEL him properly to plead and to prepare for
trial.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
164

MEMORY AID IN REMEDIAL LAW

Just in civil cases, the bill of particulars GENERAL RULE: The accused may move
here should be considered an integral to quash the complaint or information at
part of the complaint or information any time BEFORE entering his plea.
which it supplements. EXCEPTION - Instances where a motion
The remedy against an indictment to quash may be filed AFTER plea:
that fails to allege the time of 1. failure to charge an offense
commission of the offense with 2. lack of jurisdiction over the
sufficient definiteness is a motion offense charged
for a bill of particulars, not a 3. extinction of the offense or
motion to quash. penalty
4. the defendant has been in
The failure to ask for Bill of Particulars former jeopardy.
amounts to a waiver of such right.
Motion to Quash Demurrer to
Section 10. Production or inspection of Evidence
material evidence in possession of filed before the filed after the
prosecution. defendant enters his prosecution has
plea rested its case
Section 11. Suspension of arraignment Does not go into the based upon the
merits of the case inadequacy of the
GROUNDS FOR SUSPENSION but is anchored on evidence adduced by
1. the accused appears to be matters not directly the prosecution in
suffering from an unsound related to the support of the
mental condition which question of guilt or accusation
effectively renders him unable innocence of the
to fully understand the charge accused
against him and to plead Governed by Rule governed by Rule 119
intelligently thereto; 117 of the Rules of of the Rules of
2. there exists a valid prejudicial Criminal Procedure Criminal Procedure
question; and
3. a petition for review of the
resolution of the prosecutor is Section 2. Form and contents.
pending at the Department of
Justice or the Office of the FORM AND CONTENTS OF A MOTION TO
President; provided that the QUASH
period of suspension shall not 1. in writing
exceed 60 days counted from the 2. signed by the accused or his
filing of the petition. counsel
3. shall specify distinctly the
factual and legal grounds
RULE 117 therefor.
MOTION TO QUASH
The court shall consider no grounds
Section 1. Time to move to quash. other than those stated in the motion,
EXCEPT lack of jurisdiction over the
Motion to Quash - this presupposes that offense charged and when the
the accused hypothetically admits the information does not charge an offense.
facts alleged, hence the court in A motion to suspend the issuance of a
resolving the motion cannot consider warrant of arrest should be considered
facts contrary to those alleged in the as a motion to quash if the allegations
information or which do not appear on therein are to the effect that the facts
the face of the information, except charged in the information do not
those admitted by the prosecution. constitute an offense.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
165

MEMORY AID IN REMEDIAL LAW

amendment, the court shall order the


RESOLUTION OF A MOTION TO QUASH amendment instead of quashing the
A motion to quash must be resolved complaint or information. If, after the
BEFORE trial and cannot defer the amendment, the defect is still not
hearing and determination of said cured, the motion to quash should be
motion until trial on the merits as it granted.
would impair the right of the accused to
speedy trial. Section 5. Effect of sustaining the
motion to quash.
It may also be resolved at the
preliminary investigation since the EFFECTS IF COURT SUSTAINS THE
investigating officer or judge has the MOTION TO QUASH
power to either dismiss the case or bind 1. If the ground of the motion is
the accused over for trial by the proper either:
court, depending on its determination of a) that the facts charged do not
lack or presence of probable cause. constitute an offense; or
b) that the officer who filed
Section 3. Grounds. the information had no
1. That the facts charged do not authority to do so, or
constitute an offense; c) that it does not conform
2. That the court trying the case substantially to the
has no jurisdiction over the prescribed form; or
offense charged; d) that more than one offense
3. That the court trying the case is charged,
has no jurisdiction over the the court may order that another
person of the accused; information be filed or an
4. That the officer who filed the amendment thereof as the case
information had no authority to may be within a definite period.
do so; If such order is NOT MADE, or if
5. That it does not conform having been made, another
substantially to the prescribed information is NOT FILED within
form; a time to be specified in the
6. That more that one offense is order, or within such time as the
charged except when a single court may allow, the accused, if
punishment for various offenses in custody, shall be discharged
is prescribed by law; therefrom, unless he is also in
7. That the criminal action or custody on some other charge.
liability has been extinguished;
8. That it contains averments 2. If the motion to quash is sustained
which, if true would constitute a upon any of the following grounds:
legal excuse or justification; and a) that a criminal action or
9. That the accused has been liability has been
previously convicted or extinguished;
acquitted of the offense b) that it contains averments
charged, or the case against him which, if true, would
was dismissed or otherwise constitute a legal excuse or
terminated without his express justification; or
consent. c) that the accused has been
Section 4. Amendment of complaint or previously convicted or
information acquitted of the offense
charged,
If an alleged defect in the complaint or the court must state, in its order
information, which is the basis of a granting the motion, the release
motion to quash, can be cured by of the accused if he is in custody

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
166

MEMORY AID IN REMEDIAL LAW

or the cancellation of his bond if prosecution for the same offense


he is on bail. UNLESS:
1. the motion was based on the
3. If the ground upon which the ground that the criminal action
motion to quash was sustained is or liability has been
that the court has NO extinguished, AND
jurisdiction over the offense, the 2. that the accused has been
better practice is for the court previously convicted or in
to remand or forward the case to jeopardy of being convicted or
the proper court, not to quash acquitted of the offense
the complaint or information. charged.

The prosecution may elevate to the Section 7. Former conviction or


Higher Courts an order granting a motion acquittal; double jeopardy.
to quash.
Double Jeopardy means that when a
PROCEDURE IF MOTION TO QUASH IS person is charged with an offense and
DENIED the case is terminated either by
1. accused should plead; acquittal or conviction or in any other
2. accused should go to trial manner without the consent of the
without prejudice to the special accused, the latter cannot again be
defenses he invoked in the charged with the same or identical
motion; offense.
3. appeal from the judgment of
conviction, if any, and interpose REQUISITES FOR DOUBLE JEOPARDY
the denial of the motion as an UNDER SECTION 7
error. It is necessary that in the first case that-
1. the complaint or information or
An order denying a motion to quash is other formal charge was
INTERLOCUTORY and NOT APPEALABLE. sufficient in form and substance
Appeal in due time, as the proper to sustain a conviction;
remedy, implies a previous conviction as 2. the court had jurisdiction;
a result of a trial on the merits of the 3. the accused had been arraigned
case and does not apply to an and had pleaded; and
interlocutory order denying a motion to 4. he was convicted or acquitted or
quash. the case was dismissed without
his express consent;
The denial by the trial court of a motion When all these circumstances are
to quash CANNOT be the subject of a present, they constitute a BAR to a
petition for certiorari, prohibition or second prosecution for
mandamus in another court of 1. the same offense, or
coordinate rank. 2. an attempt to commit the said
offense, or

Section 6. Order sustaining the motion 3. a frustration of the said offense,


to quash not a bar to another or
prosecution. 4. any offense which necessarily
includes or is necessarily
A motion SUSTAINING the motion to included in the first offense
quash is NOT a bar to another charged.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
167

MEMORY AID IN REMEDIAL LAW

The discharge of a defendant on a discovered only after a plea was


preliminary investigation is NOT such an entered in the former complaint
adjudication in his favor as will bar or information.
subsequent prosecution for the offense. 3. The plea of guilty to the lesser
This is because, a preliminary offense was made without the
investigation is not a trial and does not consent of the prosecutor and of
have for its object that of determining the offended party; except when
definitely the guilt of the accused. the offended party failed to
Further, the accused ha snot yet been appear during the arraignment.
arraigned.
In any of these instances, such period of
DISMISSAL vs. ACQUITTAL the sentence as may have been served
Acquittal is always based on the merits, by the accused under the former
that is, the defendant is acquitted conviction shall be credited against and
because the evidence does not show deducted from the sentence he has to
defendants guilt beyond reasonable serve should he be convicted under the
doubt; but Dismissal does not decide the subsequent prosecution.
case on the merits or that the defendant
is not guilty. B. SAME EVIDENCE TEST - whether the
facts as alleged in the second
If an act is punished by a law and an information, if proved, would have
ordinance, even if they are considered been sufficient to sustain the former
as different offenses, conviction or information, or from which the
acquittal under either shall constitute a accused may have been acquitted or
bar to another prosecution for the same convicted.
act.
Section 8. Provisional dismissal.
If a single act is punished by two
different provisions of law or statutes, GENERAL RULE: Where the case was
but each provision requires proof of an dismissed provisionally with the
additional fact which the other does not consent of the accused, he CANNOT
so require, neither conviction nor invoke double jeopardy in another
acquittal in one will bar a prosecution prosecution therefor OR where the case
for the other. (Perez vs. Court of was reinstated on a motion for
Appeals, 163 SCRA 236) reconsideration by the prosecution.
EXCEPTIONS: Where the dismissal was
TESTS FOR DETERMINING WHETHER actually an acquittal based on:
THE TWO OFFENSES ARE IDENTICAL: a) lack or insufficiency of the
evidence; or
A. SAME OFFENSE TEST - There is b) denial of the right to speedy
IDENTITY between two offenses not trial, hence, even if the accused
only when the second offense is gave his express consent to such
exactly the same as the first, but dismissal or moved for such
ALSO when the second offense is an dismissal, such consent would be
attempt to or frustration of, OR is immaterial as such dismissal is
necessarily included in the offense actually an acquittal.
charged in the first information.
EXCEPTIONS TO THE IDENTITY RULE: REQUISITES
1. The graver offense developed 1. consent of the prosecutor
due to supervening facts arising 2. consent of the accused
from the same act or omission 3. notice to the offended party
constituting the former charge.
2. The facts constituting the graver If a case is provisionally dismissed with
charge became known or were the consent of the prosecutor and the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
168

MEMORY AID IN REMEDIAL LAW

offended party, the failure to reinstate it d) waiver of objections to


within the given period will make the admissibility of evidence;
dismissal permanent. e) modification of the order of trial
if the accused admits the charge
PERIOD FOR REINSTATEMENT: but interposes a lawful defense;
a. offenses punishable by f) such matters as will promote a
imprisonment not exceeding 6 fair and expeditious trial of the
years = ONE YEAR criminal and civil aspects of the
b. offenses punishable by case. (Sections. 2 & 3, Circ. 38-
imprisonment of more than 6 98).
years = TWO YEARS
Plea bargaining the process whereby
Otherwise the dismissal shall be removed the accused, the offended party and the
from being provisional and becomes prosecution work out a mutually
permanent. satisfactory disposition of the case
subject to court approval. It usually
Section 9. Failure to move to quash or involves the defendants pleading guilty
to allege any ground therefor. to a lesser offense or to only one or
some of the counts of a multi-count
All grounds for a motion to quash are indictment in return for a lighter
WAIVED if NOT seasonably raised, sentence than that for the graver
EXCEPT: charge.
a) when the information does not
charge an offense; Section 2. Pre-trial agreement.
b) lack of jurisdiction of the court;
c) extinction of the offense or Requisites before the pre-trial
penalty; and agreement can be used as evidence:
d) double jeopardy. 1. they are reduced to writing
2. the pre-trial agreement is signed
by the accused and his counsel.
RULE 118
PRE-TRIAL The requirement in section 2 is intended
to safeguard the right of the accused
Section 1. Pre-trial; mandatory in against improvident or unauthorized
criminal cases. agreements or admissions which his
counsel may have entered into, or which
Pre-trial is MANDATORY in all criminal any person may ascribe to the accused
cases. without his knowledge, as he may have
waived his presence at the pre-trial
The court shall after arraignment and conference.
within 30 days from the time the court
acquires jurisdiction over the person of The omission of the signature of the
the accused, unless a shorter period is accused and his counsel, as mandatorily
provided for by special laws or circular required by the rules, renders the
of the Supreme Court, order a pre-trial. stipulation of facts inadmissible in
evidence.

MATTERS CONSIDERED IN PRE-TRIAL Section 3. Non-appearance at pre-trial


CONFERENCE conference.
a) plea bargaining;
b) stipulation of facts; The court may impose proper sanctions
c) marking for identification of and penalties for non-appearance at pre-
evidence of the parties; trial conference by the counsel for the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
169

MEMORY AID IN REMEDIAL LAW

accused or the prosecutor without CONTINUOUS TRIAL SYSTEM


acceptable excuse. Trial once commenced shall continue
from day to day as far as practicable
The sanctions or penalty may be in the until terminated; but it may be
form of reprimand, fine or postponed for a reasonable period of
imprisonment. Inasmuch as this is similar time for good cause.
to indirect contempt of court, the
penalty for indirect contempt may be LIMITATION OF THE TRIAL PERIOD
imposed. It shall in no case exceed 180 days from
the first day of the trial, except as
PURPOSE otherwise provided by the Supreme
To enforce the mandatory requirement Court.
of pre-trial in criminal cases.
Requisites before a trial can be put-off
The accused is not the one compelled to on account of the absence of a witness:
appear, but only the counsel for the 1. that the witness is material and
accused or the prosecutor. The principal appears to the court to be so
reason why accused is not included in 2. that the party who applies has
the mandatory appearance is the fear been guilty of no neglect
that to include him is to violate his 3. that the witnesses can be had at
constitutional right to remain silent. the time to which the trial is
deferred and incidentally that no
Section 4. Pre-trial order. similar evidence could be
obtained
After the pre-trial, the court issues an 4. that an affidavit showing the
order reciting actions taken, facts existence of the above
stipulated and evidence marked, and circumstances must be filed.
thereafter the trial on the merits will
proceed on matters not disposed of Remedies of accused where a
during the pre-trial. prosecuting officer without good cause
secures postponements of the trial of a
To prevent manifest injustice, however, defendant against his protest beyond a
the pre-trial order may be modified by reasonable period of time:
the court, upon its own initiative or at 1. mandamus to compel a dismissal
the instance of any party. of the information
2. if he is restrained of his liberty,
by habeas corpus to obtain his
RULE 119 freedom.
TRIAL
The SC adopted the continuous trial
Section 1. Time to prepare for trial. system as a mode of judicial fact-finding
and adjudication conducted with speed
Trial - the examination before a and dispatch so that trials are held on
competent tribunal according to the the scheduled dates without
laws of the land, of the facts put in issue postponement, the factual issues for
in a case for the purpose of determining trial well-defined at pre-trial and the
such issue. whole proceedings terminated and ready
for judgment within 90 days from the
The trial shall commence within 30 days date of initial hearing, unless for
from receipt of the pre-trial order. meritorious reasons an extension is
permitted.
Section 2. Continuous trial until
terminated; postponements. The system requires that the Presiding
Judge:

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
170

MEMORY AID IN REMEDIAL LAW

1. adhere faithfully to the and, in the proper case, the civil


session hours prescribed by liability
laws; 2. The accused may present
2. maintain full control of the evidence to prove his defense
proceedings; and and damages, if any, arising from
3. effectively allocate and use time the issuance of a provisional
and court resources to avoid remedy in the case.
court delays. 3. The prosecution and the defense
may, in that order, present
The non-appearance of the prosecution rebuttal and sur-rebuttal
at the trial, despite due notice, justified evidence unless the court, in
a provisional dismissal or an absolute furtherance of justice, permits
dismissal depending upon the them to present additional
circumstances. evidence bearing upon the main
issue
Section 4. Factors for granting 4. Upon admission of the evidence
continuance. of the parties, the case shall be
deemed submitted for decision
PURPOSE: To control the discretion of unless the court directs them to
the judge in the grant of continuance on argue orally or to submit written
his instance or on motion of any party memoranda.
litigant. 5. When the accused admits the act
or omission charged in the
Section 5. Time limit following an complaint or information but
order for new trial. interposes a lawful defense, the
order of trial may be modified.
The trial shall commence within 30 days
from the date the order for a new trial GENERAL RULE:
becomes final. The order in the presentation of
evidence must be followed. The accused
Section 7. Public Attorneys duties may not be required to present his
where accused is imprisoned. evidence first before the prosecution
adduces its own proof.
These public attorneys enter their EXCEPTION:
appearance in behalf of the accused Where a reverse procedure was adopted
upon his request or that of his relative or without the objection of the defendant
upon being appointed as counsel de and such procedure did not prejudice his
oficio by the court. substantial rights, the defect is not a
reversible error.
Section 8. Sanctions.
A departure from the order of the trial is
Kinds: not reversible error as where it was
a. criminal agreed upon or not seasonably objected
b. administrative to, but not where the change in the
c. contempt of court order of the trial was timely objected by
the defense.

Section 11. Order of Trial Where the order of the trial set forth
under this section was not followed by
ORDER OF TRIAL: the court to the extent of denying the
1. The prosecution shall present prosecution an opportunity to present its
evidence to prove the charge evidence, the judgment is a nullity.
(People vs. Balisacan)

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
171

MEMORY AID IN REMEDIAL LAW

The conditional examination of


Section 12. Application for examination prosecution witnesses shall be conducted
of witness for accused before trial. before the judge or the court where the
case is pending and in the presence of
Accused may have his witness examined the accused, unless he waived his right
conditionally in his behalf BEFORE trial after reasonable notice. The accused
upon motion with notice to all other will have the right to cross-examine such
parties. prosecution witness, hence such
The motion must state: statements of the prosecution witnesses
1. name and residence of witness may thereafter be admissible in behalf
2. substance of testimony of or against the accused (Regalado, p.
3. witness is so sick to afford 460).
reasonable ground to believe
that he will not be able to Section 16. Trial of several accused
attend the trial or resides more
that 100 km and has no means to GENERAL RULE:
attend the same, or other similar When two or more persons are jointly
circumstances exist that would charged with an offense, they shall be
make him unavailable or prevent tried jointly. This rule is so designed as
him from attending trial. to preclude a wasteful expenditure of
judicial resources and to promote an
Section 13. Examination of defense orderly and expeditious disposition of
witness; how made. criminal prosecutions.
EXCEPTION:
If the court is satisfied that the The court, upon motion of the fiscal or
examination of witness is necessary as of any of the defendants, may order a
provided in SECTION 4, order shall be separate trial for one or more accused.
made and a copy served on the fiscal. The granting of a separate trial when
two or more defendants are jointly
The examination shall be taken before charged with an offense is purely
any judge or if not practicable any discretionary with the trial court.
member of the Bar in good standing
designated by the trial court, or by a The motion for separate trial must be filed
lower court designated by a court of BEFORE the commencement of the trial
superior jurisdiction which issue the and cannot be raised for the first time on
order. appeal. If a separate trial is granted, the
testimony of one accused imputing the
Section 14. Bail to secure appearance crime to his co-accused is not admissible
of material witness. against the latter. In joint trial, it would be
admissible if the latter had the opportunity
If the court is satisfied, upon proof or for cross-examination.
oath, that a material witness will not
testify when so required, it may on Section 17. Discharge of accused to be
motion of either party order the witness state witness.
to post bail in such sum as may be
deemed proper. Should the witness Motion to discharge should be made by
refuse to post such bail as required, the the prosecution BEFORE resting its case.
court may commit him to prison until he REQUISITES FOR DISCHARGE
complies or is legally discharged after his 1. absolute necessity for the
testimony has been taken. testimony
2. no other direct evidence
Section 15. Examination of witness for available for the prosecution
the prosecution. 3. testimony can be substantially
corroborated in its material

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
172

MEMORY AID IN REMEDIAL LAW

points informed of the nature and cause of the


4. accused not the most guilty accusation against him, and to convict
5. accused has never been him of an offense different from that
convicted of an offense involving charged in the complaint or information
moral turpitude would be an unauthorized denial of that
right. (U.S. vs. Campo, 23 Phil. 369)
Absence of any of the requisites for the
discharge of a particeps criminis is a Section 20. Appointment of acting
ground for objection to the motion for prosecutor.
his discharge, BUT such objection must See Section 5, Rule 110.
be raised BEFORE the discharge is
ordered. Section 21. Exclusion of the public.

EFFECTS OF DISCHARGE GENERAL RULE:


1. Evidence adduced in support of the The accused has the right to a public
discharge shall automatically form trial and under ordinary circumstances,
part of the trial; the court may not close the door of the
2. If the court denies the motion to courtroom to the general public.
discharge the accused as state EXCEPTION:
witness, his sworn statement shall Where the evidence to be produced
be inadmissible in evidence; during the trial is of such character as to
3. Discharge of accused operates as an be offensive to decency or public
acquittal and bar to further morals, the court may motu propio
prosecution for the same offense. excludes the public from the courtroom.
EXCEPTIONS:
1. If the accused fails or refuses to Section 22. Consolidation of trials of
testify against his co-accused in related offenses.
accordance with his sworn
statement constituting the basis This contemplates a situation where
of the discharge separate informations are filed:
2. Failure to testify refers 1. for offenses founded on the
exclusively to defendants will or same facts;
fault 2. for offenses which form part of a
3. Where an accused who turns series of offenses of similar
states evidence on a promise of character
immunity but later retracts and
fails to keep his part of the Section 23. Demurrer to evidence.
agreement, his confession of his
participation in the commission After the prosecution rests its case, the
of the crime is admissible as court may dismiss the action on the
evidence against him. ground of insufficiency of evidence:
1. on its own initiative after giving
Section 19. When mistake has been the prosecution the opportunity
made in charging the proper offense. to be heard; or
2. upon demurrer to evidence filed
When the offense proved is neither by the accused with or without
included in, nor does it include, the leave of court.
offense charged and is different The arrest rule allows the accused in a
therefrom, the court should dismiss the criminal case to present evidence even
action and order the filing of a new after a motion to dismiss PROVIDED the
information charging the proper offense. demurrer was made with the express
consent of the court.
This rule is predicated on the fact that
an accused person has the right to be The filing of the motion to dismiss

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
173

MEMORY AID IN REMEDIAL LAW

WITHOUT leave of court results in the 4. with a concise statement of the


submission of the case for decision on fact and the law on which it is
the basis of the evidence on record and based.
does not lie from such order denying the
motion to dismiss. REMEDY IF JUDGMENT IS NOT PUT IN
WRITING: file a petition for mandamus
If said motion to dismiss is sustained, to compel the judge to put in writing the
such dismissal being on the merits is decision of the court.
equivalent to an acquittal, hence the
prosecution cannot appeal as it would If the judgment is one of CONVICTION,
place the accused in double jeopardy. judgment must state:
1. Legal ratification of the offense
An order denying a demurrer to evidence constituted by the admissions of
being interlocutory is NOT APPEALABLE. the accused and the aggravating
and mitigating circumstances
Section 24. Reopening. attending its commission
2. Participation of the accused,
At any time BEFORE finality of the whether as principal, accomplice
judgment of conviction, the judge may, or accessory
motu propio or upon motion, with 3. Penalty imposed upon the
hearing in either case, reopen the accused
proceedings to avoid miscarriage of 4. Civil liability or damages caused
justice. The proceedings shall be by the wrongful act, unless
terminated within 30 days from the separate civil action has been
order granting it. reserved or waived

If the judgment is one of ACQUITTAL, it


RULE 120 must make a finding on the civil liability
JUDGMENT of the accused, unless there is clear
showing that the act from which the civil
Section 1. Judgment; definition and liability might arise did not exist.
form.
Reasonable doubt - state of the case
Judgment - the adjudication by the which, after full consideration of all
court that the accused is guilty or not evidence, leaves the mind of the judge
guilty of the offense charged and the in such a condition that he cannot say
imposition of the proper penalty and that he feels an abiding conviction, to a
civil liability provided for by the law. moral certainty, of the truth of the
charge.
It is not necessary that the judge who
tried the case be the same judicial Acquittal a finding of not guilty based
officer to decide it. It is sufficient if he on the merits, that is, the accused is
be apprised of the evidence already acquitted because the evidence does not
presented by a reading of the transcript show that his guilt is beyond reasonable
of the testimonies already introduced, in doubt, or a dismissal of the case after
the same manner as appellate courts the prosecution has rested its case upon
review evidence on appeal. motion of the accused on the ground
Section 2. Contents of the judgment. that the evidence fails to show beyond
reasonable doubt that the accused is
Judgment must be guilty.
1. in writing;
2. in the official language, It is well-settled that acquittal, in a
3. personally and directly prepared criminal case is immediately final and
and signed by the judge, executory upon its promulgation, and

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
174

MEMORY AID IN REMEDIAL LAW

that accordingly, the State may not seek


its review without placing the accused in Section 6. Promulgation of judgment.
double jeopardy. (Barbers vs. Laguio,
Jr., 351 SCRA 606) Promulgation of judgment - official
proclamation or announcement of
An acquittal of an accused based on judgment. It consists of reading the
reasonable doubt DOES NOT bar the judgment or sentence in the presence of
offended party from filing a separate the accused and any judge of the court
civil action based on other sources of rendering the judgment.
obligation.
RULES ON THE VALIDITY OF
Section 3. Judgment for two or more PROMULGATION OF JUDGMENT:
offenses. 1. The judgment must have been
rendered and promulgated
When two or more offenses charged in during the incumbency of the
the complaint or information, and the judge who signed it.
accused fails to object to it before trial, 2. The presence of counsel during
the court may convict the accused of as the promulgation of judgment is
many offenses as charged and proved. not necessary.

An accused can be convicted of an Effect of Promulgation of Judgment in


offense only when it is both charged and Absentia he shall lose all remedies
proved. If it is not charged although available in these Rules against the
proved, OR if it is not proved although judgment and the court shall order his
charged, the accused CANNOT be arrest.
convicted thereof.
Section 7. Modification of judgment.
Variance between the allegation and the
proof cannot justify a conviction for Upon motion of the accused, a judgment
either the offense charged or the of conviction may be modified or set
offense proved unless either is included aside by the court BEFORE it has become
in the other (Section 4). final or BEFORE an appeal has been
perfected.
Section 5. When an offense includes or
is included in another. A judgment becomes final:
a. when the period for perfecting
GENERAL RULE: If what is proved by the appeal an appeal has lapsed;
prosecution evidence is an offense which b. when the sentence is partially or
is included in the offense charged in the totally satisfied or served;
information, the accused may validly be c. when the accused expressly
convicted of the offense proved. waives in writing his right to
EXECEPTION: Where facts supervened appeal; and
after the filing of information which d. when the accused applies for
change the nature of the offense. probation.

An offense charged necessarily includes A judgment of acquittal becomes final


another when some essential elements immediately after promulgation and
or ingredients of the offense charged cannot be recalled for correction or
constitute the offense proved, or when amendment.
the essential elements or ingredients of
the offense charged constitute or form The prosecutor cannot ask for the
part of those constituting the offense modification or setting aside of a
proved, then one offense is included in judgment of conviction because the
the other. rules clearly provide that a judgment of

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
175

MEMORY AID IN REMEDIAL LAW

conviction may be modified or set aside or irregularities are expunged from the
by the court rendering upon motion of record or new evidence is introduced, or
the accused. both steps are taken.

The trial court can validly amend the A motion for new trial or reconsideration
civil portion of its decision within 15 should be filed with the trial court
days from promulgation thereof even within 15 days from the promulgation of
though the appeal had in the meantime the judgment and interrupts the period
already been perfected by the accused for perfecting an appeal from the time
from judgment of conviction. of its filing until notice of the order
overruling the motion shall have been
The trial court may lose jurisdiction over served upon the accused or his counsel.
the judgment even BEFORE the lapse of A motion for the reconsideration of the
15 days: judgment may be filed in order to
1. when the defendant voluntarily correct errors of law or fact in the
submits to the execution of the judgment. It does not require any
judgment; further proceeding.
2. when the defendant perfects his
appeal; A new trial be granted at any time
3. when the accused withdraws his before the judgment of conviction
appeal; becomes final:
4. when the accused expressly 1. on motion of the accused
waives in writing his right to 2. on motion of the court but with the
appeal; consent of the accused
5. when the accused files a petition
for probation. The award of new trial or taking of
additional evidence rests upon the sound
Section 8. Entry of judgment. discretion of the court. (People vs.
Acosta, 98 Phil. 642)
The final judgment of the court is
carried into effect by a process called Once the appeal is perfected, the trial
mittimus. court steps out of the case and the
appellate court steps in. Should it come
Mittimus - A process issued by the court to pass then that during the pendency of
after conviction to carry out the final the appeal, new and material evidence,
judgment, such as commanding a prison for example, have been discovered, the
warden to hold the accused in accused may file a motion for new trial
accordance with the terms of the with the appellate court.
judgment.
Cases when the trial court lose
Section 9. Existing provisions governing jurisdiction over its sentence even
suspension of sentence, probation and before the lapse of 15 days:
parole not affected by this Rule.
1. When the defendant voluntarily
submits to the execution of the
RULE 121 sentence
NEW TRIAL OR RECONSIDERATION 2. When the defendant perfects his
appeal. The moment the appeal
Section 1. New trial or reconsideration. is perfected the court a quo
loses jurisdiction over it, except
New trial - the rehearing of a case for the purpose of correcting
already decided but before the clerical errors.
judgment of conviction therein rendered
has become final, whereby errors of law New Trial Reopening of the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
176

MEMORY AID IN REMEDIAL LAW

case prejudiced and denied his day in court,


Filed after judgment made by the court the litigation may be reopened to give
is rendered but before the judgment the client another chance to present his
before the finality is rendered in the case.
thereof exercise of sound
discretion Section 3. Grounds for reconsideration.
At the instance or does not require the
with the consent of consent of the Grounds of motion for reconsideration
the accused accused; may be at 1. errors of law;
the instance of either 2. errors of fact in the judgment,
party who can which require no further
thereafter present proceedings.
additional evidence
The principle underlying this rule is to
Section 2. Grounds for new trial. afford the trial court the opportunity to
correct its own mistakes and to avoid
GROUNDS FOR A NEW TRIAL IN unnecessary appeals from being taken.
CRIMINAL CASES: The grant by the court of
1. errors of law or irregularities reconsideration should require no further
committed during the trial proceedings, such as the taking of
prejudicial to the substantial additional proof.
rights of the accused.
2. new and material evidence Section 4. Form of motion and notice
discovered. to the prosecutor.

REQUISITES BEFORE A NEW TRIAL MAY Requisites for a motion for new trial or
BE GRANTED ON THE GROUND OF reconsideration: The motion for a new
NEWLY DISCOVERED EVIDENCE: trial or reconsideration shall be:
1. that the evidence was 1. in writing
discovered after trial; 2. filed with the court
2. that such evidence could not 3. State grounds on which it is
have been discovered and based
produced at the trial even with 4. If the motion for new trial is
the exercise of reasonable based on a newly discovered
diligence; evidence, it must be supported
3. that it is material not merely by the affidavits of the witness
cumulative, corroborative or by whom such evidence is
impeaching; and expected to be given, or duly
4. the evidence is of such a weight authenticated copies of
that it would probably change documents which it is proposed
the judgment if admitted. to introduce in evidence.
5. Notice of the motion for new
Mistakes or errors of counsel in the trial or reconsideration shall be
conduct of his case are not grounds for given to the fiscal.
new trial. This rule is the same whether
the mistakes are the result of ignorance, While the rule requires that an affidavit
inexperience, or incompetence. (U.S. vs. of merits be attached to support a
Umali, 15 Phil. 37) motion for new trial based on newly
discovered evidence, yet the defect of
If the incompetence, ignorance or lack of it may be cured by testimony
inexperience of counsel is so great and under oath of the defendant at the
the error committed as a result thereof hearing of the motion. (Paredes vs.
is so serious that the client, who Borja, 3 SCRA 495)
otherwise has a good cause, is

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
177

MEMORY AID IN REMEDIAL LAW

Section 5. Hearing on motion. Unlike the rule in Civil Cases, the


remedy of the aggrieved party being
Where a motion for new trial calls for appeal in due time, an order granting a
resolution of any question of fact, the new trial rendered in Criminal Cases is
court may hear evidence thereon by also interlocutory BUT is controllable by
affidavits or otherwise. certiorari or prohibition at the instance
of the prosecution.
PURPOSE
To determine whether the new trial
requested should be granted or not. It is RULE 122
not the new trial proper where newly APPEAL
discovered evidence, for example will be
received by the court. (Pamaran, p. 608) Section 1. Who may appeal.

Section 6. Effects of granting a new Any party may appeal from a judgment
trial or reconsideration. or final order, UNLESS the accused will
be placed in double jeopardy.
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION Appeal - a proceeding for review by
1. when a new trial is granted on the which the whole case is transferred to
ground of errors of law or the higher court for a final
irregularities committed during the determination
trial, all proceedings and evidence
not affected by the commission of Appeal is not an inherent right of
such errors and irregularities shall convicted person. The right of appeal is
stand, BUT those affected thereby and always has been statutory.
shall be set aside and taken anew.
The court may, in the interest of Only final judgments and orders are
justice, allow the introduction of appealable.
additional evidence.
2. When a new trial is granted on the EFFECT OF AN APPEAL
ground of newly discovered An appeal in a criminal case opens the
evidence, the evidence already whole case for review and this includes
taken shall stand, and the newly the review of the penalty, indemnity,
discovered and such other evidence and the damages involved. Consequently,
as the court may, in the interest of on appeal, the appellate court may
justice, allow to be introduced, shall increase the penalty, indemnity, or the
be taken and considered together damages awarded by the trial court,
with the evidence already in the although the offended party had not
record. appealed from said award, and the party
3. In all cases, when the court grants who sought a review of the decision was
new trial or reconsideration, the the accused.
original judgment shall be set aside
and a new judgment rendered Final judgment Final Order
accordingly. a judgment which disposes of the whole
would become final subject matter or
The effect of the granting of a new trial if no appeal is taken terminates a
is not to acquit the accused of the crime particular issue
of which the judgment finds him guilty, leaving nothing to be
but precisely to set aside said judgment done but to enforce
so that the case may be tried de novo as by execution what
if no trial had been before. has been determined

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
178

MEMORY AID IN REMEDIAL LAW

From a judgment convicting the 4. Appeal to the Court of Appeals in


accused, two appeals may accordingly be cases where penalty imposed is
taken: life imprisonment or where a
1. The accused may seek a review lesser penalty is imposed but
of said judgment, as regards involving offenses committed on
both actions; or the same occasion or arising out
2. The complainant may appeal of the same occurrence that
with respect only to the civil gave rise to the more serious
action, either because the lower offense for which the penalty of
court has refused or failed to death or life imprisonment is
award damages, or because the imposed: by filing a notice of
award made is unsatisfactory to appeal with the Court of
him. Appeals.
5. Death penalty: automatic review
GENERAL RULE: A private prosecutor in by the Court of Appeals. (A.M.
a criminal case has NO authority to act No. 00-5-03-SC, October 15,
for the People of the Philippines before a 2004)
court on appeal. It is the governments 6. Other appeals to the Supreme
counsel, the Solicitor General, who Court: by petition for review on
appears in criminal cases or their certiorari.
incidents before the Supreme Court. At
the very least, the Provincial Fiscal Error of Judgment Error of
himself, with the conformity of the Jurisdiction
Solicitor General. the court may renders an order of
EXCEPTION: The civil award in a commit in the judgment void or
criminal case may be appealed by the exercise of voidable
private prosecutor on behalf of the jurisdiction
offended party or his successors. reviewable by appeal reviewable by
certiorari
Section 2. Where to appeal.
Modes of review
Section 3. How appeal taken. The Rules of Court recognize 4 modes by
which the decision or final order of the
HOW APPEAL IS TAKEN court may be reviewed by a higher
1. Appeal to the Regional Trial tribunal, viz.:
Court: by filing a notice of 1. ordinary appeal
appeal with the court that 2. petition for review
rendered the judgment or order 3. petition for review on certiorari
appealed from and serving a 4. automatic appeal
copy to the adverse party
Section 4. Service of notice of appeal.
2. Appeal to the Court of Appeals
from decision of the Regional PUBLICATION OF NOTICE OF APPEAL
Trial Court in the exercise of its If copy of the notice of appeal cannot be
original jurisdiction: by filing a served on the adverse party or his
notice of appeal with the court counsel, it may be done by publication.
which rendered the judgment or Service by publication is made in a
order appealed from and serving newspaper of general circulation in the
a copy to the adverse party vicinity once a week for a period not
3. Appeal to the Court of Appeals in exceeding 30 days.
cases decided by Regional Trial
Court in the exercise of its Section 5. Waiver of notice.
appellate jurisdiction: by
petition for review

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
179

MEMORY AID IN REMEDIAL LAW

The appellee may waive his right to a in which case the judgment shall become
notice that an appeal has been taken. final.
HOWEVER, the appellate court may, in
its discretion, entertain an appeal The court may also, in its discretion,
notwithstanding failure to give such allow the appellant to withdraw his
notice if the interests of justice so appeal, PROVIDED a motion to that
require. (Llamas vs. Moscoso, 95 Phil. effect is filed BEFORE the rendition of
735) the judgment in the case on appeal.

Section 6. When appeal to be taken. Once appeal is withdrawn, the decision


or judgment appealed from becomes at
An appeal must be filed within 15 days once final and executory. (People vs.
counted from the promulgation or notice Dueo, 90 SCRA 23)
of the judgment or order appealed from.
The period for appeal is interrupted Section 13. Appointment of counsel de
from the time the motion for new trial is oficio for accused on appeal.
filed up to the receipt by the accused of
the notice of the order overruling the The right to counsel de oficio does not
motion. cease upon the conviction of an accused
by a trial court but continues, even
Section 8. Transmission of papers to during appeal.
appellate court upon appeal.
Duties of the clerk of the trial court to
Within 5 days from the filing of the the appellant who is confined in prison
notice of appeal, the clerk of the court upon the presentation of notice of
with whom the notice of appeal was appeal:
filed must transmit to the clerk of court 1. he shall ascertain from the
of the appellate court the complete appellant, whether he desires
record of the case, together with said the Court of Appeals or the
notice. Supreme Court to appoint an
attorney to defend him de
Section 10. Transmission of records in oficio;
case of death penalty. 2. he shall transmit with the
record, upon a form to be
In case of death penalty, the records prepared by the clerk of the
shall be forwarded to the Court of appellate court, a certificate of
Appeals for automatic review and compliance with this duty of the
judgment, within 20 days but not earlier response of the appellant to his
than 15 days after the promulgation of inquiry.
the h e

the judgment or notice of denial of any RULE 123


motion for new trial or reconsideration. PROCEDURE IN THE MUNICIPAL TRIAL
The transcript shall also be forwarded COURTS
within 10 days after the filing thereof by
the stenographic reporter (A.M. No. 00- Section 1. Uniform Procedure.
5-03-SC, Oct. 15, 2004).
Procedure to be observed in
Section 12. Withdrawal of appeal. Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial
An appellant may withdraw his appeal Courts: They shall observe the same
BEFORE the record has been forwarded procedure as in the Regional Trial Courts
by the clerk of court to the proper EXCEPT:
appellate court as provided by Section 8,

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
180

MEMORY AID IN REMEDIAL LAW

1. where a particular provision court in arriving at a just and proper


expressly or impliedly applies conclusion.
only to the Metropolitan Trial
Courts, Municipal Trial Courts PURPOSE
and Municipal Circuit Trial Courts To present to the court in concise form
or Regional Trial Courts the points and questions in controversy
2. In criminal cases governed by and, by fair argument on the facts and
the Rules on Summary Procedure law of the case, to assist the court in
in Special Cases adopted on arriving at a just and proper conclusion.
August 1, 1983 and revised on
November 15, 1991. Section 4. When brief for appellee to
be filed; reply brief of the appellant.

RULE 124 The appellee shall file 7 copies of the


PROCEDURE IN THE COURT OF APPEALS brief with the clerk of court within 30
days from receipt of the brief of the
Section 2. Appointment of counsel de appellant accompanied by proof of
oficio for the accused. service of 2 copies thereof upon the
appellant
REQUISITES BEFORE AN ACCUSED CAN
BE GIVEN A COUNSEL DE OFICIO ON Section 5. Extension of time for filing
APPEAL briefs.
1. that he is confined in prison
2. without counsel de parte on Not allowed EXCEPT for good and
appeal sufficient cause and only if the motion
3. signed the notice of appeal for extension is filed before the
himself expiration of the time sought to be
extended.
EXCEPTIONS: An accused-appellant not
confined to prison can have a counsel de Section 7. Contents of briefs.
oficio if requested by him in the
appellate court within 10 days from Unlike the procedure in civil cases, it has
receipt of the notice to file brief and the been held that it is not essential for the
right thereto is established by affidavit. accused to make assignment of errors in
his brief, as on appeal, the whole record
Section 3. When brief for the appellant of the case is submitted to and
to be filed. reviewable by the appellate court.

7 copies of the brief shall be filed within Issues that were never raised in the
30 days from receipt by the appellant or proceedings before the trial court
cannot be considered and passed upon
on appeal.
his counsel of the notice from the clerk
of court of the Court of Appeals that the Section 8. Dismissal of appeal for
evidence, oral and documentary, is abandonment or failure to prosecute.
already attached to the record.
GROUNDS FOR DISMISSAL OF APPEALS
Brief - literally means a short or 1. Failure on the part of the
condensed statement. The purpose of appellant to file brief within the
the brief is to present to the court in reglementary period, except
concise form the points and questions in when he is represented by a
controversy, and by fair argument on the counsel de oficio;
facts and law of the case, to assist the 2. Escape of the appellant from
prison or confinement;

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
181

MEMORY AID IN REMEDIAL LAW

3. When the appellant jumps bail; The findings of the judge who tried the
and case and heard the witnesses are not
4. Flight of the appellant to a disturbed on appeal.
foreign country during the EXCEPTION:
pendency of the appeal. When it is shown that the trial court has
overlooked certain facts of substance
DISMISSAL OF APPEAL; NEED OF NOTICE and value that, if considered, might
TO APPELLANT affect the result of the case. (People vs.
The Court of Appeals may dismiss motu Cabiling, 74 SCRA 285)
propio or on motion by appellee an
appeal for failure on the part of the The reversal of judgments entered in the
appellant to file his brief on time, BUT it court below is prohibited, EXCEPT for
must have a notice served upon the prejudicial error that which tends to
appellant of the action to be taken by prejudice a substantial right of a party
said court before dismissing motu propio to the proceedings.
the appeal.
Section 11. Scope of Judgment.
Effect of Escape of Accused; The appeal confers upon the appellate
Abandonment of Appeals court full jurisdiction and renders it
1. If the convict escapes from competent to examine the records,
prison or confinement or refuses revise the judgment appealed from,
to surrender to the proper increase the penalty and cite the proper
authorities, jumps bail or flees provision of the law.
to a foreign country he is
deemed to have abandoned his An invocation of the constitutional
appeal AND the judgment of the immunity from double jeopardy will not
court below becomes final. lie in case of appeal by the accused. The
2. In that case, the accused cannot reason being that when the accused
be afforded the right to appeal appeals from the sentence of the trial
UNLESS (a) he voluntarily court, he waives the constitutional
submits to the jurisdiction of the safeguard against double jeopardy and
court or (b) is otherwise arrested throws the whole case open to the
within 15 days from notice of the review of the appellate court.
judgment against him.
Section 12. Power to receive evidence.
Section 9. Prompt disposition of cases.
PURPOSE
It is discretionary for the appellate court To speed up the disposition of court
whether to order a hearing of the case cases.
before it or decide the appeal solely on
the evidence submitted to the trial
court.

If the Court of Appeals chose not to hear Other powers of the Court of Appeals:
the case, the Justices composing the 1. to try cases and conduct
division may just deliberate on the case, hearings;
evaluate the recorded evidence on hand 2. receive evidence;
and then decide it. 3. perform any and all acts
necessary to resolve factual
Section 10. Judgment not to be issues raised in cases:
reversed or modified except for a. falling under its original and
substantial error. appellate jurisdiction;

GENERAL RULE:

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
182

MEMORY AID IN REMEDIAL LAW

b. including the power to grant A re-hearing is NOT a matter of right but


and conduct new trials or a privilege to be granted or not, as the
further proceedings. court sees fit, the matter being solely
within its discretion.
Section 13. Quorum of the court;
certtification or appeal of case to the New questions CANNOT be presented for
SC. the first time on a motion for rehearing,
especially where they are inconsistent
a. Whenever the Court of with positions taken on the original
Appeals finds that the hearing, or waived on the original
penalty of death should be submission of the case.
imposed, the court shall
render judgment bur A second motion for rehearing or
REFRAIN from making an reconsideration of a final judgment or
entry of judgment and order is NOT allowed because if parties
forthwith certify the case are allowed to file as many motions for
and elevate its entire record rehearing or reconsideration as their
to the SC for review. discretion or caprice suits, the
b. In cases where the Court of proceedings would become
Appeals imposes reclusion undeterminable and unnecessarily
perpetua, life imprisonment voluminous.
or a lesser penalty, it shall
render and enter judgment The MITTIMUS is the final process of
imposing such penalty. The carrying into effect the decision of the
judgment may be appealed appellate court and the transmittal
to the SC by notice of appeal thereof to the court of origin is
filed with the Court of predicated upon the finality of the
Appeals. (A.M. No. 00-5-03- judgment. It shall be stayed during the
SC, Oct. 15, 2004) pendency of the motion for rehearing or
reconsideration.
Section 14. Motion for new trial.
A motion for reconsideration of its
Motion for new trial based on Newly judgment or final resolution shall be
Discovered Evidence may be filed at any resolved by the Court of Appeals within
time AFTER the appeal from the lower 90 days from the time it is submitted for
court has been perfected AND BEFORE resolution, and no 2nd motion for
the judgment of the appellate court reconsideration for the same party shall
convicting the accused becomes final. be entertained.

Once an appeal is perfected, the trial The only-one-motion-for-reconsideration


court steps out and the appellate court rule does not apply where the first
steps in. A motion for new trial must motion for reconsideration resulted in a
then be filed with the appellate court, reversal or substantial modification of
not with the court from whose judgment the original decision or final resolution.
the appeal is taken. The party adversely affected thereby
Section 16. Rehearing or may file a motion for reconsideration.
reconsideration. Section 17. Judgment transmitted and
filed in trial court.
A motion for reconsideration shall be
filed within 15 days from notice of the Transmittal of judgment to court a quo
decision or final order of the Court of After the judgment has been entered, a
Appeals. certified copy of the entry should be
transmitted to the clerk of the court of
origin.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
183

MEMORY AID IN REMEDIAL LAW

The copy of the entry serves as the Cases involving both questions of law
formal notice to the court from which and fact come within the jurisdiction of
the appeal was taken of the disposition the Court of Appeals.
of the case in the appellate court, so
that the judgment may be executed Appeal to the SC is NOT A MATTER OF
and/or placed or noted in the proper RIGHT, but a matter of sound judicial
file. discretion. The prescribed mode of
appeal is by certiorari.
Sec. 18. Application of certain rules in
civil to criminal cases. Section 2. Review of decisions of the
Court of Appeals.
The corresponding amendment was
made pursuant to the changes GENERAL RULE: Findings of fact in the
introduced under the 1997 Rules of CA is conclusive upon the SC
Procedure. EXCEPTIONS:
1. when the conclusion is a finding
Rule 47 (Annulment of Judgments of grounded entirely on
Final Judgment and Resolutions) DOES speculation, surmises or
NOT APPLY TO CRIMINAL CASES. The conjectures
appropriate remedy for lack of 2. when the inference made is
jurisdiction or extrinsic fraud is manifestly absurd, mistaken or
CERTIORARI (Rule 65) or HABEAS impossible
CORPUS (Rule 102). 3. when there is grave abuse of
discretion in the appreciation of
facts
RULE 125 4. when the judgment is
PROCEDURE IN THE SUPREME COURT premised on a misapprehension
of facts
Section 1. Uniform Procedure. 5. when the findings of fact are
The procedure in the Supreme Court in conflicting
original, as well as in appealed cases, is 6. when the Court of Appeals in
the same as in the Court of appeals, making its findings went beyond
EXCEPT when otherwise provided by the the issues of the case and the
Constitution or the law. same is contrary to the
admissions of both appellant and
A case may reach the Supreme Court in appellee
the following manner: 7. when certain material facts
1. automatic review and circumstances had been
2. ordinary appeal overlooked which, if taken into
3. petitioner for review on account would after the result as
certiorari it would give rise to reasonable
doubt to acquit the accused.

EFFECT OF DIRECT APPEAL TO THE Question of law - when the doubt or


SUPREME COURT ON QUESTION OF LAW difference arises as to what the law is on
IN CRIMINAL CASES a certain state of facts. It must not
A direct appeal to the Supreme Court on involve an examination of the probative
questions of law in criminal cases in value of the evidence presented by the
which the penalty imposed is not death litigants or any of them.
or life imprisonment precludes a
review of the facts.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
184

MEMORY AID IN REMEDIAL LAW

Question of fact - when the doubt or only in furtherance of public


difference arises as to the truth or the prosecutions. Search warrants have no
falsehood of alleged facts. relation to civil process or trials and are
not available to individuals in the course
Section 3. Decision if opinion is equally of civil proceedings, nor for the
divided. maintenance of any mere private right.

The Supreme Court, the Constitution SEARCH vs. SEIZURE


ordains, shall be composed of a Chief The term search as applied to searches
Justice and 14 associate justices. It mat and seizures is an examination of a
sit en banc or in its discretion, in mans house or other buildings or
divisions of 3, 5, or 7 members (Section premises or of his person with a view to
4(1), Article VIII, 1987 Constitution). the discovery of contraband or illicit or
stolen property or some evidence of guilt
A criminal case shall be reheard by the to be used in the prosecution of a
Supreme Court when the Court en banc criminal action for some offense with
is equally divided in opinion or the which he is charged.
necessary majority cannot be had, if no
decision is reached the conviction of the A seizure is the physical taking of a thing
lower court shall be reversed and the into custody.
accused acquitted.
General Warrant a search warrant
According to the Constitution, only the which vaguely describes and DOES NOT
Supreme Court en banc may modify or particularize the personal properties to
reverse a doctrine or principle of law or be seized without a definite guideline to
ruling laid down by the Court in a the searching team as to what items
decision rendered en banc or in division. might be lawfully seized, thus giving the
officers of the law discretion regarding
what articles they should seize.
RULE 126
SEARCH AND SEIZURE A general warrant is NOT VALID as it
infringes on the constitutional mandate
Section 1. Search warrant defined. requiring particular description of the
things to be seized.
Search Warrant an order in writing
issued in the name of the People of the WARRANT OF SEARCH WARRANT
Philippines, signed by a judge and ARREST
directed to a peace officer commanding Order directed to the Order in writing in
him to search for personal property peace officer to the name of the RP
described therein and bring it before the execute the warrant signed by the judge
by taking the person and directed to the
court.
stated therein into peace officer to
custody that he may search personal
ELEMENTS OF SEARCH WARRANT: be bound to answer property described
1. order in writing for the commission therein and to bring
2. signed by the judge in the name of the offense. it to court.
of the People of the Philippines (sec. 1)
3. commanding a peace officer to Does not become validity is for 10 days
search personal property stale only (sec. 9)
4. bring the property before the
court May be served on any to be served only in
day and at any time daytime unless the
NATURE OF SEARCH WARRANTS of day or night. affidavit alleges that
Search warrants are in the nature of (sec. 6, rule 113). the property is on the
criminal process and may be invoked person or in the place

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
185

MEMORY AID IN REMEDIAL LAW

to be searched. (sec. 3. the means used or intended to


8) be used for committing an
upon probable cause to be determined offense.
personally by the judge after examination The rule does not require that the
in writing and under oath in the form of property to be seized should be owned
searching answers and questions. by the person against whom the search
Only issued if there sworn statements warrant is directed. It may or may not
is a necessity of and affidavits of be owned by him.
placing accused complainant and
under immediate witnesses must be
custody submitted to court. In a search incidental to an arrest even
WITHOUT a warrant the person arrested
may be searched for:
Test to determine Particularity 1. dangerous weapons, and
1. When the description therein as 2. anything which may be used as
specific as the circumstances proof of the commission of an
will ordinarily allow offense.
2. When the description express a
conclusion of fact- not of law
which the warrant officer may Section 4. Requisites for issuing Search
be guided in making the search warrant.
and seizure.
3. When the things described are REQUISITES
limited to those which bear 1. must be issued upon probable
direct relation to the offense for cause;
which the warrant is being 2. probable cause must be
issued. determined by the issuing judge
personally;
EXCEPTION: 3. the judge must have personally
AN APPLICATION FOR SEARCH WARRANT examined, in the form of
SHALL BE FILED WITH THE FF: searching questions and answers,
1. any court within whose the applicant and his witnesses
territorial jurisdiction a crime and taken down their written
was committed; depositions;
2. any court within the judicial 4. the search warrant must
region where the crime was particularly describe or identify
committed if the place of the the property to be seized as far
commission of the crime is as the circumstances will
known, or any court within the ordinarily allow;
judicial region where the 5. the warrant issued must
warrant shall be enforced; particularly describe the place
3. HOWEVER, if the criminal action to be searched and the persons
has been filed, the application or things to be seized;
shall only be made in the court 6. it shall issue only for one specific
where the criminal action is purpose; and
pending. 7. it must not have been issued
Section 3. Personal property to be more than 10 days prior to the
seized. search made pursuant thereto.

Kinds of property to be seized by virtue A search warrant shall not issue but upon
of a warrant: probable cause in connection with one
1. subject of the offense; specific offense.
2. proceeds or fruits of the offense;

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
186

MEMORY AID IN REMEDIAL LAW

Party who may question validity of 2. when it expresses a conclusion of


search and seizure: fact by which the warrant may
Well settled is the rule that the legality be guided; or
of a seizure can be contested only by the 3. when the things described are
party whose rights have been impaired limited to those which bear a
thereby, and that the objection to an direct relation to the offense for
unlawful search and seizure is purely which the warrant is issued.
personal and cannot be availed of by
third parties. PROBABLE CAUSE - facts and
circumstances which could lead a
REMEDIES FROM AN UNLAWFUL SEARCH reasonable, discreet and prudent man to
1. a motion to quash the search believe that the property subject of an
warrant, and offense is in the place sought to be
2. a motion to suppress as evidence searched.
the objects illegally taken.
(EXCLUSIONARY RULE any MULTI FACTOR BALANCING TEST in
evidence obtained through determining Probable Cause:
unreasonable searches and One which requires the officer to weigh
seizures shall be inadmissible for the manner and intensity of the
any purpose in any proceeding) interference on the right of the people,
3. Replevin, if the objects are the gravity of the crime committed, and
legally possessed. the circumstances attending the
incident.
The remedies are alternative; if a
motion to quash is denied, a motion to Section 5. Examination of complainant;
suppress cannot be availed of record.
subsequently.
Manner on how a judge should examine a
Where the search warrant is a PATENT witness to determine the existence of
NULLITY, certiorari lies to nullify the probable cause:
same. 1. the judge must examine the
The illegality of the search warrant does witnesses personally
not call for the return of the things 2. the examination must be under
seized, the possession of which is oath
prohibited by law. HOWEVER, those 3. the examination must be
personalities seized in violation of the reduced to writing in the form of
constitutional immunity whose searching questions and answers
possession is not of itself illegal or
unlawful ought to be returned to their Such personal examination is necessary
rightful owner or possessor. in order to enable the judge to
determine the existence or non-
Any evidence obtained in violation of the existence of a probable cause.
constitutional immunity against
unreasonable searches and seizures are Section 6. Issuance and form or search
inadmissible for any purpose in any warrant.
proceeding (Section 2, Article III, 1987
Constitution). ISSUANCE OF SEARCH WARRANT
The Constitution ordains that no warrant
When may a search warrant be said to shall issue but upon probable cause
particularly describe the thing to be supported by oath or affirmation.
seized:
1. the description therein is as FORM OF SEARCH WARRANT
specific as the circumstances The search warrant must be in writing
will allow; and must contain such particulars as the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
187

MEMORY AID IN REMEDIAL LAW

name of the person against whom it is


directed, the offense for which it was A search warrant conducted at night
issued, the place to be searched and the without direction to that effect is an
specific things to be seized. unlawful search. The same rule applies
where the warrant left blank the time
An application for a search warrant is for making the search.
heard ex-parte. It is neither a trial nor a
part of the trial. The examination or A public officer or employee who
investigation, which must be under oath exceeds his authority or uses
may not be in public. It may be even unnecessary severity in executing the
held in the secrecy of the chambers. It warrant is liable under Article 129 of the
must be under oath and must be in Revised Penal Code.
writing.
Section 10. Validity of search warrant.
Section 8. Search of house, room, or
premises to be made in presence of 10 days from its date, thereafter, it shall
two witnesses. be void. A search warrant can be used
only once, thereafter it becomes functus
In order to insure that the execution of oficio.
the warrant will be fair and reasonable,
and in order to insure that the officer While, under section 10, a search
conducting the search shall NOT exceed warrant has a validity of 10 days,
his authority or use unnecessary severity NEVERTHELESS, it CANNOT be used every
in executing the search warrant, as well day of said period and once articles have
as for the officers own protection already been seized under said warrant,
against unjust accusations, it is required it CANNOT be used again for another
that the search be conducted in the search and seizure, EXCEPT when the
presence of the: search conducted on one day was
1. lawful occupant of the place to interrupted, in which case the same may
be searched, be continued under the same warrant
2. or any member of his family, the following day if not beyond 10 day
3. or in their absence, in the period. (Uy Kheytin vs. Villareal, 42
presence of two witnesses of Phil. 886)
sufficient age and discretion
residing in the same locality. Section 12. Delivery of [property and
This requirement is mandatory. inventory thereof to court; return and
proceedings thereon.
Section 9. Time of making search.
The law imposes upon the person making
GENERAL RULE: the search the duty to issue a detailed
A search warrant must be served in the receipt for the property seized.
day time. Additionally, he is likewise required to
make a return of the warrant to the
EXCEPTION: court which issued it, together with an
A search warrant may be made at night inventory of the property seized.
when it is positively asserted in the
affidavit that the property is on the Section 13. Search incident to lawful
person or in the place ordered to be arrest.
searched (Alvares vs. CFI of Tayabas, 64
Phil. 33). The affidavit making such WHEN MAY THERE BE A SEARCH
assertion must itself be sufficient as to WITHOUT WARRANT
the fact so asserted, for if the same is 1. in times of war within the area
based upon hearsay, the general rule of military operation;
shall apply.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
188

MEMORY AID IN REMEDIAL LAW

2. as an incident of a lawful arrest, evidence obtained or deemed waived


subject to the following where no objection of the search
requisites: warrant was raised during the trial of
a. arrest must be lawful; the case nor to the admissibility of the
b. search and seizure must be evidence obtained through said warrant.
contemporaneous with Section 14. A motion to quash a search
arrest; warrant or to suppress evidence;
c. search must be within where to file.
permissible area;
(i.e. STOP AND FRISK search IN WHAT COURT MAY A MOTION TO
which allows a limited protective QUASH BE FILED:
search of outer clothing for 1. before the court that issued the
weapons) warrant;
3. when there are prohibited 2. under the CRIMINAL CASE RULE,
articles open to eye and hand; all the incidents arising from the
(PLAINVIEW DOCTRINE) Search Warrant should be
4. when there is consent, subject consolidated in the court where
to the following conditions: the criminal case is pending;
(consented search) 3. under the ALTERNATIVE REMEDY
a. there is a right; RULE, with the court which
b. there must be knowledge of issued the search warrant. In this
the existence of such right; motion, all grounds for objection
c. there must be intention to existent or available and known
waive; at the time MUST BE INVOKED,
5. when it is incident of inspection; otherwise, they are deemed
6. under the Tariff and Customs waived.
Code for purposes of enforcing
customs and tariff laws; The legality of the search warrant should
7. searches and seizures of vessels be addressed to the court issuing the
and aircraft; this extends to the search warrant and not to any other
warrantless search of a motor court to foster judicial stability
vehicle for contraband; (Pagkalinawan vs. Gomez, 23 SCRA
1275).
Search and seizure of vessels and
aircraft may validly be made without a Filing of motion to quash is without
search warrant because the vessel or prejudice to any proper recourse to the
aircraft can quickly move out of the appropriate higher court by the party
jurisdiction before such warrant could be aggrieved.
secured.

The remedy for questioning the validity


of a search warrant can only be sought in
the court that issued it, not in the sala

Rule 127
of another judge of concurrent PROVISIONAL REMEDIES IN CRIMINAL
jurisdiction. Except where there is CASES
already a case filed, the latter shall
acquire jurisdiction to the exclusion of Section 1. Availability of provisional
other courts. remedies.

Waiver of legality and admissibility NATURE OF PROVISIONAL REMEDIES


Objection to the legality of the search 1. Those to which parties litigant may
warrant as to the admissibility of the resort for the preservation or

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
San Beda College of Law
189

MEMORY AID IN REMEDIAL LAW

protection of their rights or interests the criminal action may make such an
and for no other purposes during the application in behalf of or for the
pendency of the action. protection of the interest of the
2. They are applied to a pending offended party.
litigation for the purpose of securing
the judgment or preserving the It was held by the Supreme Court that
status quo, and in some cases after the public prosecutor has the authority
judgment, for the purpose of to apply for preliminary attachment as
preserving or disposing of the may be necessary to protect the interest
subject matter. of the offended party.

The requisites and procedure for availing


REPUBLIC OF THENotice
of these provisional remedies shall be
to adverse party, not required
PHILIPPINES
No notice to the adverse party, or
NATIONAL CAPITAL JUDICIAL REGION
the same as those for civil cases. hearing on the application is required
REGIONAL TRIAL COURT
before
MANILA, BRANCH 911a writ of preliminary attachment
The provisional remedies under this rule may issue as a hearing would defeat the
are proper only where the civil action purpose of the provisional remedy. The
for the recovery
PEOPLE OF THE PHILIPPINES of civil liability ex time which such a hearing would take,
delicto has not PLAINTIFF,
been expressly waived or could be enough to enable the defendant
the right to institute such civil action to abscond or dispose of his property
separately is not reserved
-VERSUS- in those cases before a writ of attachment issue and
where reservation may be made.
CRIM. CASE NO. ___________ the only requisites from the issuance of
a writ of preliminary attachment are the
Where the civil
HANNAH MAE VENTURA action arising from a affidavit and bond of applicant.
criminal offense is
ACCUSED.suspended by the (Mindanao Savings, etc. vs. Court of
filing of the criminal action, the court Appeals, 172 SCRA 480)
wherein said civil case is pending can
issue the aforesaid auxiliary writs since Attachment may be availed of ONLY
such orders do not involve INFORMATION
a when2
the civil action arising from the
determination of the merits of the case. crime has not been expressly waived or
(Babala The undersigned
vs. Abao, 90 Phil.accuses
827) HANNAH MAEnotVENTURA
reserved of andtheonlycrime
in theof following
MURDER 3,
committed as follows: cases:
Kinds of provisional remedies a. when the accused is about to
That1.on attachment
or about December 5, 20044, in Batute, Manila 5
, Philippines,
abscond from thewithin the jurisdiction
Philippines;
of this
2. court, the said accused did, then and there,
injunction b. when withthemalice aforethought
criminal action and with
is based on
deliberate intent to take the life of RENEE JOI ZABALA
3. receivers
6
, willfully,
a claim for unlawfully,
money or feloniously,
property
suddenly, unexpectedly,
4. delivery of personalandproperty
treacherously attack embezzled
the latter withora metal fork, first
fraudulently
wounding her in the back,
5. support pendente lite and afterwards, when enfeebled and unable
misapplied or converted to defend herself,
to the use
again stabbed her in the neck, both wounds being necessarily mortal 7
, thereby
of the accused who is a public causing the
direct and immediate
Section 2. Attachment death of said RENEE JOI ZABALA.officer or a corporate officer or an
attorney, broker, or agent or clerk in
CONTRARY TO LAW.
Who may apply for preliminary the course of employment or by a
attachment person in a fiduciary capacity;
April 28, 2005.
The aggrieved party in whose behalf the c. when the accused has concealed,
civil aspect of the criminal action is removed
__Sgd.orFiscal
aboutHappy__
to dispose of his
prosecuted may apply for the issuance of property;
a writ (City/Provincial
of preliminary Fiscal)
attachment,
8 he d. when the accused resides abroad.
being the person primarily and directly
interested thereby. The prosecutor in
CRIMINAL PROCEDURE: Information

Name of the accused, Sec. 7, Rule 110.


2
Information, Sec. 4, Rule 110.
3
RDesignation
EMEDIAL LAW ofCthe offense, Sec. 8, Rule 110.
OMMITTEE
4 CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Date of commission of the offense, Sec. 11, Rule 110.
5Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Place of commission of the offense, Sec. 10, Rule 110.
Special
6
Name of the
Proceedings); offended
Jeenice party,
de Sagun Sec.
(Criminal 12, RuleElaine
Procedure); 110.Masukat (Evidence)
7
Cause of the accusation, Sec. 9, Rule 110.
8
Subscribed by the prosecutor, Sec. 4, Rule 110.

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