Specpro - Crimpro - Evid - Albano Reviewer PDF

ALBANO REVIEWER SUMMARY
REMEDIAL LAW
RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
VARIOUS SPECIAL PROCEEDINGS

1. Settlement of estate of deceased person
2. Escheat
3. Guardianship and custody of children
4. Trustees
5. Adoption
6. Rescission and revocation of adoption
7. Hospitalization of insane person
8. Habeas Corpus
9. Change of name
10. Voluntary dissolution of corporations
11. Judicial approval of voluntary recognition of minor natural children
12. Constitution of family home
13. Declaration of absence and death
14. Cancellation or correction of entries in civil registry
- Rules on ordinary actions apply to special proceedings if practicable
MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON:

1. Extrajudicial
-REQ:
1. Left no will
2. No debts
3. All heirs are all of age or even if there are minors, there may be appointment
of guardians
4. Registered in ROD to bind third person
2. Summary settlement of estates of small value

- Estate must not exceed PHP 10,000
3. Judicial settlement through letters of administration or letters testamentary
4. Self adjudication of the estate by the sole heir

- executes affidavit and registers with ROD 
© Edward Vange Arriba Page 1 of 89

REMEDIAL LAW
SETTLEMENT OF ESTATE OF DECEASED PERSONS

RULE 73: VENUE AND PROCESS
- PROBATE PROCEEDINGS: It shall be filed with:

- Not exceeding 200/400 - MTC
- Exceeding 200/400 - RTC
- Venue:
- If inhabitant of the PH: In the province in which he resides at the time of the death
- Not Inhabitant: Any province where he had his estate
- Gross value should always be alleged

- When marriage is dissolved by the death of the husband or wife, the community
property shall be inventoried, administered and liquidated and the debts are thereof
paid in the testate or intestate proceedings
- Courts may issue warrants and process necessary to compel the attendance of
witnesses or to carry into effect their orders or judgment. If a person does not perform,
it may issue warrant for the apprehension and imprisonment of such person until he
performs such order or judgment
- Settlement proceeding is limited to the settlement and adjudication of properties
and cannot extent to collateral matters.
- A counterclaim for MORAL DAMAGES against the heirs is an extraneous matter and
the injection of this would delay the settlement of estate.
- Probate court has no power to take cognizance of and determine the issue of title to
property claimed by third person adversely to the decedent UNLESS the claimant
and all other parties having legal interest in the property consent, expressly or
impliedly, to the submission of the question to the probate court. (IF ALLOWED IT
SHALL ONLY BE FOR THE SOLE PURPOSE OF DETERMINING IF IT SHALL BE INCLUDED IN
THE INVENTORY) Such determination is only PROVISIONAL
- THE RULE ABOVE IS ONLY APPLICABLE AS BETWEEN REPRESENTATIVES OF THE ESTATE
AND STRANGERS THERETO.
- The court allowed the probate court to provisionally pass upon issue of title because
only interested parties are all heirs to the estate. (Coca vs Borromeo)
- The rule however is not absolute. When the heirs agree to submit the question of
determination of ownership to the probate court, without prejudice to third persons,
the issue of ownership may be decided.
- GR: The declaration of heirship shall be made in special proceedings not in

independent civil action
- EXC:When parties in civil case already presented their evidence regarding the issue
of heirship

REMEDIAL LAW
- The determination of whether a property is conjugal or paraphernal for purposes of

inclusion in the inventory rests with the probate court.
- The probate court cannot order the inclusion of a property in the inventory if it is
registered in the name of another
- Venue in special proceedings is the same as the venue in ordinary civil action
- Probate jurisdiction extends to matters incidental and collateral such as selling,
mortgaging or encumbering the property belonging to the estate.
- Matters relating to settlement of estate must be made in a special proceedings.
- PC may admit a complaint in intervention provided that it obtains the consent of all
interested parties.
- Estate of an absentee may be settled if he is presumed dead in accordance with the
civil code. If he is alive, he may recover it but only to the extent of the balance after
payment of all the debts
- An estate of a decedent is an artificial person.
- There can be no valid partition until after the will is probated
- If the probate court has already acquired jurisdiction over all the properties of the
deceased, the parties cannot anymore divide it by extrajudicial agreement.
- The rules allows not just creditors but any person interested or persons interested in the
estate in various capacities to protect their interests in the estate. (Person who filed a
case against the estate for tortious acts committed during the lifetime was allowed to
intervene)
- Money claims based on contract whether express or implied even if contingent may
be filed.
- Claims based on tort may not be filed in the estate proceedings. They do not fall
within the class of claims to be filed under the notice of the creditors under Rule 86.
They are to be settled in the civil cases where they were raised and not in the
intestate proceedings. In the event that it be granted, they would have to be
enforced against the estate.
- As a rule, The probate court does not issue a writ of execution because all claims shall
be paid as ordered by the court. EXCEPT:
1. To satisfy debts of the estate out of the contributive shares of devisees and legatees
in possession of the decedent’s assets.
2. Enforce payment for expenses for partition
3. Satisfy the costs for examination in probate proceedings
4. Refusal to transfer the possession to persons entitled.
RULE 74: SUMMARY SETTLEMENT OF ESTATES
- If the decedent left no will, no debts and the heirs are all of age or the minors are
represented, the parties may without securing letters of administration divide the
estate among themselves as they see fit by means of public instrument filed in RD.

REMEDIAL LAW
- If the disagree, they may do so in ordinary action of partition

- If sole heir and no will - Self Adjudication
- In extrajudicial settlement, The heirs should post a bond in an amount equivalent to
the value of the personal property involved.
- Decedent is PRESUMED not to have debts if no creditor files a petition for letters of
administration within 2 years after the death of the decedent.
- The heirs should effect publication of extrajudicial partition in a newspaper of general
circulation
- No extrajudicial partition shall be binding upon any person who has not participated
therein or had no notice thereof.
- Extrajudicial settlement is MANDATORY
- If there is a will, they must submit it for probate
- Extrajudicial settlement is a final settlement of the estate and is conclusive upon the
parties so no further proceedings can be done until the partition is set aside.
- Oral partition of estate is possible.The required public instrument is not constitutive of
the contract of partition but merely an evidence thereof.
Summary Settlement - a judicial proceeding wherein without the appointment of

executor or administrator and without delay, the competent court summarily proceeds
to value the estate of the decedent, ascertain his debts and allow his will if any.
- Claims of heirs unduly deprived and debts outstanding shall be claimed within 2 years
after the settlement and distribution of the estate whether EJ or summarily
- If minor, mentally uncap, resident outside PH, prisoner, he may claim within one year
after such disability is removed
- Parties unduly deprived may compel the judicial settlement of the estate of
Extrajudicial partition or motion to reopen the summary proceeding in court for
summary settlement.
- The person who has custody of the will shall within 20 days after he knows the death
of the testator shall deliver the will to the court having jurisdiction or the executor
named in the will. If he neglects or fails without excuse, the court may fine him an
amount not exceeding 2k
- The court may compel such person to deliver the same or else he may be
imprisoned.
- Probate proceeding is a proceeding in rem. It is mandatory and imprescriptible
REMEDIES OF CREDITOR IF DEBTOR DIES:

1. File a claim against the estate
2. Foreclose the mortgage judicially
3. Extrajudicially foreclose the mortgage but he has no right for deficiency
- remedies are not cumulative

REMEDIAL LAW
RULE 75: PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY
- A will shall pass properties only when probated

- The allowance of will shall be conclusive as to its due execution
- Allowance of will shall effect the dismissal of the forgery case. it is res judicata
- A foreign will can be given legal effects in our jurisdiction by reprobate of will
- If during the pendency of an intestate proceedings a will was presented, the probate
of such will shall be consolidated in the intestate proceedings and it shall not be
dismissed.
RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL

- An executor, devisee or legatee or any person interested in the estate may at ANY
TIME after the death of the testator petition the court to have the will probated
- The testator during his lifetime may validly petition his will to be probated
- If will is uncontested, court may allow only one subscribing witness only
- If will is CONTESTED, all the subscribing witnesses and notary public if present in the PH
and not insane must be produced and examined.
- To prove lost or destroyed will, The execution and validity of the same be established
and the will is proved to have been in existence at the time of the death of the testator
- If it appears at the time of the hearing that none of the subscribing witnesses resides
in the province, but that the deposition of one or more of them can be taken
elsewhere, the court may on motion direct it to be taken and may authorize a
photographic copy of the wilt be made and to be presented to the witnesses on his
examination.
- If the Subscribing witnesses are dead or insane or non resides in the PH, the court may
admit the testimony of other witnesses to prove the sanity of the testator and the due
execution of the will and as evidence of the execution, it may admit proof of the
handwriting of the testator and the subscribing witnesses if any
GROUNDS FOR DISALLOWANCE OF WILL

1. Not executed in accordance with the law
2. Insanity or mental incapacity at the time
3. Duress or influence of fear or threats
4. Undue and improper pressure or influence
5. Fraudulent signature
- People may contest the allowance of the will in writing

REMEDIAL LAW
- How to prove holographic will 

CONTESTED: At least 3 witnesses who know the handwriting go the testator explicitly
declare that the will and the signature are in the handwriting of the testator. Expert
testimony may be resorted to
RULE 77: ALLOWANCE OF WILL OUTSIDE THE PH AND ADMINISTRATION OF ESTATE

THEREUNDER
- Reprobate of will shall be filed in the RTC

- When a will is allowed, the court shall grant letters testamentary or letters of
administration with the will annexed
RULE 78: LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM ISSUED
- No person is competent to serve as executor or administrator who:
1. Minor
2. Not resident of PH
3. In the opinion of the court unfit to execute the duties of the trust by reason of
Drunkness, improvidence, or want of understanding or integrity or by reason of
conviction of an offense involving moral turpitude.
- A married woman may serve as an administrator and marriage shall not affect her
authority to serve under a previous appointment
EXECUTOR - A person nominated by the TESTATOR to carry out the directions and
requests in his will and to dispose of his property according to his testamentary
provisions
ADMINISTRATOR - Appointed by the court as no competent executor was designated

by the testator
- When a will has been proved and allowed, the court shall issue letters testamentary
thereon to the person named as executor therein if he is competent, accepts the
trust, and gives bond as required by the rules.
APPOINTMENT OF ADMINISTRATOR:
- Surviving spouse as the case may be or next of kin or both, in the discretion of the
court.
- If such surviving husband or wife or next of kin is are incompetent or unwilling to
neglects for 30 days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to
one or more of the principal creditors
- If no one is competent or fit, it may be granted to such other person as the court may
select

REMEDIAL LAW
- Surviving spouse is preferred over the next of kin of the decedent
- If the preferred person are unsuitable, the court may appoint other person.
LETTER TESTAMENTARY - Appointment issued by a probate court after the will has been
admitted to probate to the executor named in the will to administer the estate of the
deceased testator, provided the executor named in the will is competent, accepts the
trust and gives a bond.
LETTERS OF ADMINISTRATION -Appointment issued by the probate court to a person

other than the executor named in the will or if the person left no will.
- The preference is not absolute if there are strong reasons justifying appointment of
persons other than the surviving spouse or if there is another person having more
interest than the surviving spouse. Thus if the contestants for the administration are the
second wife and children of the first marriage, The latter would be preferred where
the property to be administered was wholly acquired during the first marriage.
- The primary consideration for the appointment is the interest in the estate.
- The function of the probate court necessarily includes the examination of properties.
rights and credits of the deceased so as to rule on whether or not the inventory of the
estate properly included them for purposes of distribution.
- Questions of title pertaining to the determination of the whether the properties are to
be included in the inventory and accounting may be resolved in the probate court.
- A co-administrator may be validly appointed by the court
- The probate court is allowed to revoke or modify its own orders as long as the
proceedings are pending in the same court.
RULE 79: OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR
LETTERS OF ADMINISTRATION
- Any person interested in a will may state in writing and oppose the issuance of the
letters testamentary/administration
- No defect in the petition shall render void the issuance of letters of administration.
- The only issue in an administration proceedings is WON the person is rightfully entitled
to administration or not.
RULE 80: SPECIAL ADMINISTRATOR

- When there is delay in granting the letters testamentary or of administration by any
cause including an appeal from the allowance or disallowance of will, the court may
appoint a special administrator until questions are decided and executor or
administrator is appointed.
- A special administrator may also be appointed if the executor or administrator is a
claimant against the estate he represents.

REMEDIAL LAW
- Appointment of specAd implied denial of the power to appoint a regular

administrator during the pendency of the appeal
POWERS OF SPECIAL ADMINISTRATOR 

1. Take possession and charge of the property
2. Commence and maintain suits
3. Sell such perishable or other property as the court orders sold
4. Pay debts of the deceased only upon the orders of the court.
- A SpecAd may be made a defendant in a foreclosure suit or suits for payment of

debts
- The moment the letters testamentary is granted, powers of SpecAd shall cease.
- SpecAd shall deliver to the executor all the property in hand after.
- Appointment and removal of SpecAd is based on the discretion of the court and is
not appealable.
- GR: Only one SpecAd may be appointed to administer an estate temporarily.
- EXC: If there are two factions among the heirs, the court may appoint more than
one.
- An executor may be validly appointed as SpecAd
- Rule on preference does does apply in SpecAd
RULE 81: BONDS OF EXECUTORS AND ADMINISTRATORS

- The executor and administrator or special administrator should give a bond first
before entering his trust
- Purpose of bond it to safeguard the estate
CONDITIONS OF AD/EXEC’S BOND

1. To make and return to the court within 3 months a true and complete inventory of
the estate of the deceased which shall come to his possession or knowledge
2. Administer according to the ROC and will of the testator if any the estate.
3. Render true and just account of his administration to the court within 1 year and at
any time required by the court
4. Perform all the orders of the court.
- If the testator in his will directs that the executor serve without bond or with only his
individual bond, he may be allowed by the court to give bond in such sum and with
such surety as the court approves conditioned only to pay the debts of the testator;
but the court may require the executor a further bond in case of a change in his
circumstances or for other sufficient cause.
- The probate court may order the forfeiture of an administrator’s bond.
- The bond may be proceeded against by means of an ordinary civil action.

REMEDIAL LAW
RULE 82: REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION AND REMOVAL OF

EXECUTORS AND ADMINISTRATORS
- If a will has been probated and accepted, letters of administration shall cease.
- The administrator shall surrender the letters to the court.
GROUNDS FOR REMOVAL OF AN EXECUTOR OR ADMINISTRATOR (NOT EXCLUSIVE)

1. He neglects to render his account and settle the estate according to law.
2. Neglects to perform an order or judgment of the court
3. Neglects a duty expressly provided by ROC
4. Absconds, becomes insane or otherwise incapable or unsuitable to discharge trust
- The lawful acts of the exe/admin before his resignation shall have the same validity
RULE 83: INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY

- Within three months after his appointment, every executor or administrator shall return
to the court a true inventory and appraisal of all the real and personal estate of the
deceased with has come to his possession or knowledge.
- Inclusion of a property in the inventory is not a competent proof of ownership but it is
merely a prima facie and is without prejudice to the right of third persons to raise the
question in proper court.
- The widow and minor or incapacitated children of a deceased during the settlement
shall receive allowances
RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
POWERS AND DUTIES:

1. Administration
2. Liquidation
3. Distribution
- Exec/Admin shall maintain in tenable repair houses and other structures and fences
belonging to the estate and deliver the same in such repair to the heirs or devisees
when directed so to do by the court.
- Exec/Admin shall have the right to possess as long as necessary
RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

1. They are accountable for the whole of the estate
2. He shall not profit by the increase or lose by the decrease in value without his fault of
any part of the estate

REMEDIAL LAW
3. He must account for the excess when he sells any party of the estate but he is not
responsible for he loss of the sale has been justly made.
4. He is entitled to charge in his account only the amount he actually paid on the
settlement
5. Not be accountable for debts due the deceased which remain uncollected without
his fault
6. Account for the income from the realty used by him
7. Accountable for waste. (if due to unreasonable delay or neglect to raise money)
EXPENSES AND FEES ALLOWED:

1. Necessary expenses
2. Payment for his services
Attorney of an executor or administrator is personal liability. But if it is beneficial to the

estate and is reasonable, he may be reimbursed.
WHEN TO RENDER ACCOUNTING:

1. 1 year from the time of receiving letters of testamentary/admin
2. As the court requires
RULE 86: CLAIMS AGAINST THE ESTATE

- Immediately after granting letters testamentary/admin the court shall issue notice
requiring all persons having money claims against the decedent to file in the office of
the clerk of said court.
STATUTE OF NON CLAIMS

- Claims shall be filed not more than 12 months nor less than 6 months after the date of
first publication.
- The court may for cause shown and if equitable allow claims to be filed within a time
not exceeding 1 month after the period stated (12 months from publication)
- Notice to creditors is issued and published 3 weeks successively in a newspaper of
general circulation and to be posted for the same period in four public places in the
province and in two public places in the municipality in the last place resided.
- In claims against the estate, SNC supersedes statute of limitations.
- If debtor dies, his creditors must present their claims whether due or not within the
time provided.
- The death of the debtor does not suspend the statute of limitations. If at the time of
the filing of settlement proceedings the claim has already prescribed because of
statute of limitations, then it is barred forever.

REMEDIAL LAW
CLAIMS THAT MAY BE FILED AGAINST THE ESTATE OF THE DECEDENT:

1. Money claims arising from contract, express or implied, whether the same be due or
not.
2. Funeral expenses
3. Last sickness of the decedent
4. Judgment for money claims against the decedent
- Money claims arising after the death except for funeral expenses and claims which
are not for money cannot be filed under the statute of non claims
- If claim is barred because of statute of non claims, claims may be set forth as
counterclaims in any action that executor may bring against the claimants as an
exception to the rule.
CONTINGENT CLAIM - One which liability depends on some future event that may or
may not happen and which makes it uncertain whether there will be any liability at all.
- Owner of a parcel of land on which a person constructed his house died. His heir
appropriated the house. The builder sued the heir for the value of the house as
builder in GF. Such claim of necessary expenses by a possessor of a parcel of land is a
kind of quasi contract hence it should be filed in the estate proceedings. (OBRIEN
CASE)
- Quasi contract and obligation arising from law are included in the concept of
implied contracts - CLAIM AGAINST THE ESTATE
- When the obligation of the decedent is solitary with another debtor, the claim shall
be filed against the decedent as if he were the only debtor without prejudice to right
of reimbursement
- If joint - Only the portion belonging to him
REMEDIES OF THE MORTGAGEE IN CASE OF DEATH OF MORTGAGOR

1. He may abandon the security and prosecute his claim in the testate or intestate
proceeding and share in the estate of the deceased
2. He may foreclose the mortgage and realize upon his security
3. He may rely on his mortgage or other security alone and foreclose the same
- If the exec/admin has claim against the estate, he shall give notice in writing to the
court and appoint special administrator
RULE 87: ACTIONS BY AND AGAINST THE EXECUTORS AND ADMINISTRATORS

- No action upon claim for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator
- An action to recover real or personal property or an interest therein from the estate or
to enforce lien thereon and action to recover damages for an injury to person or
property may be commenced against the executor or administrator

REMEDIAL LAW
- An executor/admin may bring or defend in the right of the deceased action for
recovery or protection of the property or rights of the deceased.
- A mortgage belonging to the estate as mortgagee may be foreclosed by the
executor/admin
- If a person before granting of letters, embezzles or alienates any of the money, goods
or chattels or effects of such, he shall be liable to an action in favor of the executor or
administrator of the estate for DOUBLE THE VALUE of the property sold for the benefit
of the estate
- Creditor of the decedent may bring action for recovery of properties fraudulently
disposed by the decedent if there is deficiency of assets to pay debts of the
decedent
- Creditor must first post a bond before filing an action to recover properties
fraudulently disposed.
- Third persons to whom the decedent’s assets had been conveyed may be cited to
appear in court and examined under oath.
- If after the examination there is a good reason to believe that the person examined is
keeping properties belonging to the estate, then the administrator should file an
ordinary action in court to recover the same
- An order denying the motion to render an accounting is merely interlocutory.
- An order authorizing the sale of real property was issued by court without previous
notice to the heirs as required by the rules is null and void (contract and the order)
- Notice of heirs is mandatory and failure to give will invalidate the authority granted
by the court to sell the assets
- If parties are unaware of the sale, latches will not apply
RULE 88: PAYMENT OF DEBTS OF THE ESTATE
IF THERE IS SUFFICIENT PROPERTIES:

1. All debts are paid in full within the time limited for the purpose
2. Shall be paid according to the provisions of the will
3. If designation in the will is not sufficient, it shall be paid by the properties not
designated
4. Personal estate not disposed in the will shall be first chargeable
5. Real estate not disposed shall be next
6. Any deficiency shall be met by contributions from the devises or legatees and heirs
7. Executor shall retain sufficient estate to pay contingent claims when it becomes
absolute
IF NOT SUFFICIENT:
1. Preference of credits
2. No creditor of any one class shall receive any payment until those of preceding
class are paid

REMEDIAL LAW
3. If not sufficient to pay the credits of any one class, each creditor within such class
shall be paid a dividend in proportion to his claim
4. If non resident, his estate in the PH shall be disposed in such a way that creditors in
the PH and elsewhere may receive an equal share in proportion to their respective
credits
- Payments of debts shall be made pursuant to the order of the probate court
- Execution is not available in favor of a creditor against the estate of the decedent.
only sale of personal property, sale of real property and the debts shall be paid out of
these proceeds.
- Execution may only issue where the heirs, devises, legatees have entered into the
possession of their respective portions in the estate prior to the payment of the debts
and expenses.
REGLEMENTARY PERIOD TO SETTLE THE ESTATE

1. Initial period of 1 year after the issuance of letters within which to wind up the estate
of the deceased.
2. Extension of not exceeding 6 months for a single extension not in any case shall
exceed 2 years including the original 1 year period
3. If exec/admin dies, a new administrator may be granted an extension of not
exceeding 6 months at the time and not exceeding 6 months beyond the time
which the court might have allowed to original exec/admin
RULE 89: SALES, MORTGAGES AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT

- Written notice to the heirs and other person interested must be given before sale be
conducted
SALE OF REAL PROPERTIES IF:

1. Personal property is not sufficient
2. Sale of personal estate may injure the business or interest
3. No sufficient provision for the payment of his debts in the will
4. If beneficial to the heirs
5. If under a contract binding to the real property
6. When held in trust for another person during lifetime
- An interested person may prevent such sale by giving a bond in a sum fixed by court.
RULE 90: DISTRIBUTION AND PARTITION OF ESTATE
MANNER OF DISTRIBUTION OF THE ESTATE:

1. After debts, funeral expenses, allowance, estate tax, the residue shall be assigned to
the person entitled

REMEDIAL LAW
2. No distribution shall be allowed until payment of obligations above except when

they give a bond in the sum fixed by court
3. Expenses of partition may be paid by executor out of the assets in his hands if
sufficient or else proportion to the others
4. Recorded in ROD
5. Advancements of inheritance shall be heard in the same proceedings
6. Controversies as to who are the lawful heirs or distributive spheres shall be heard and
decided as in ordinary cases.
PROJECT PARTITION - Document prepared by the executor or administrator setting forth

the manner in which the estate is to be distributed among the heirs. If the estate is a
testate, the project of partition must conform with the terms of the will. If intestate, it
must be in accordance with the law.
RULE 91: ESCHEAT

- A proceeding wherein the real and personal property of the person who dies without
leaving any will or legal heirs become the property of the state upon his death.
- SolGen or his representative in behalf of the PH may file a petition in RTC of the
province where the deceased last resided or in which he had an estate.
PROCEDURE FOR ESCHEAT:

1. Hearing shall not be more than 6 months after the entry of the order of hearing and
be published for atlas once a week for 6 successive weeks in newspaper of gen circ
2. After payment of all debts and charges, the government shall escheat as follows:
1. Assign personal estate to municipality or city where the deceased last resided
2. Real estate shall be assigned to the cities or municipalities where situated
3. If never resided in PH, Whole estate may be assigned to municipality where
situated
4. For the benefit of public schools and public charitable institutions
5. Court may order permanent trust so that income shall be used.
- If Heir of deceased filed within 5 years from the date of judgment, the municipality
shall be accountable for the proceeds after deducing charges.
- A claim not made within 5 years shall be barred forever.
- It may be ordered in an ordinary settlement proceedings as long as the jurisdictional
proceedings are complied.
GENERAL GUARDIANS AND GUARDIANSHIP

RULE 92: VENUE
- Guardianship may be instituted in RTC

REMEDIAL LAW
INCOMPETENT - Includes person suffering the penalty off civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those
who are of unsound mind, persons by reason of age, disease, weak mind and other
similar causes cannot without outside aid take care of themselves.
- Venue of guardianship may be transferred.
RULE 93: APPOINTMENT OF GUARDIANS
WHO MAY FILE:

1. Any relative, friend, or other person on behalf of a resident minor or incompetent
who has no parent or lawful guardian
2. Minor himself if 14 years or over
3. Officer of Federal admin of US in PH
4. Director of health in favor of insane person who should be hospitalized or for isolated
lepers.
- Notice of hearing shall be given to person mentioned including the minor himself of
above 14 years old, incompetent
- Procedure is mandatory and jurisdictional.
RULE ON CUSTODY OF MINORS

- Shall be filed in Family court of the province where the petitioner resides or where the
minor may be found.
- Certificate of non forum shopping is needed
- Motion to dismiss is not allowed. Grounds may be raised as an affirmative defense in
an answer EXCEPT: LACK OF JURISDICTION OVER THE PARTIES OR SM
- File an answer within 5 days
- Court shall fix the date for pre trial conference and the submission of pre trial briefs
- Pre trial is MANDATORY
- Failure to file the brief or comply with the required contents shall have the same
effect as failure to appear in pre trial
EFFECT OF FAILURE TO APPEAR IN PRE TRIAL:

1. Petitioner - Dismissal of the case unless represented or with valid excuse
2. Respondent - If filed an answer but failed to appear = PRESENTATION OF EVID EX
PARTE
- Parties may agree on the custody of minor in pre trial. If they fail, court will appoint
mediator. If still not settled, court shall proceed with pre trial conference
- Court may issue a provisional order awarding custody of the minor.

REMEDIAL LAW
THE FOLLOWING PREFERENCE MAY BE OBSERVED:

1. Both parents jointly
2. Either parent taking to account the choice of the minor OVER SEVEN years of age
unless parent is unfit
3. Grand parent considering the choice of minor above 7
4. Eldest brother or sister over 21
5. Any other person or institution that the court may deem fit
- The court shall always consider the best interest of the child. The following may also
be considered:
1. Extrajudicial settlement respecting the right of the minor to have direct contact with
non custodial parent except prejudicial to the interest
2. Desire and ability of parent
3. Health and safety of minor
4. History of child and spousal abuse
5. Nature of frequency of contact
6. Habitual alcoholism or addiction
7. Marital misconduct
8. Preference of minor over 7 years old
BEST INTEREST OF THE CHILD - Totality of the circumstances and conditions as are most
congenial to the survival, protection and feelings of security of minor.
- Court shall award visitation rights to non custodial parent

- Temporary custodian shall inform the court at least 5 days notice of any plan to
chance residence or to take him out of his residence for more than 3 days. Court
order is needed when the custody case is still pending
- The court may issue motu proprio or upon application Hold departure order.
PROTECTION ORDER MAY REQUIRE PERSON TO:

1. Stay away from home, school etc
2. Cease and desist from harassing or intimidating minor or other parent
3. Refrain from commission or omission that create an unreasonable risk
4. Permit parent for the visitation right
5. Permit to enter residence
6. Comply with the orders of court
- Court may order support

- No appeal from decision may be allowed EXCEPT: he appellant has filed a MR or
New trial within 15 days from the notice of judgment. He may appeal within 15 days
from the notice of denial of MR or New trial

REMEDIAL LAW
RULE 94: BONDS OF GUARDIANS

 
CONDITIONS OF THE BOND:
1. Complete inventory of the estate within 3 months
2. Faithful execution of duties
3. Render true account
4. Settle his accounts with the court
5. Perform all orders of court
- If breach of conditions, bond may be prosecuted in the same proceeding or a

separate action
RULE 95: SELLING AND ENCUMBERING PROPERTY OF WARD

- If income of the estate is insufficient to maintain the ward, or when it is for the benefit
of the ward, or invested in productive security, The GUARDIAN may file a petition to
authorize the sale of the property
- Notice to the next kin and interested persons is needed
- Court shall indicate the manner of disposal of proceeds
- Court may order the sale in public or private sale.
- Court may order additional bond
- Order of sale shall be valid only within one year. Cannot be enforced for more than 1
year after granting the same
- Approval by the court in the sale is merely pro forma
RULE 96: GENERAL POWERS AND DUTIES OF GUARDIANS
POWERS OF THE GUARDIANS

1. Care and custody of the person of his ward and estate
2. Pay debts of his ward from latter’s estate
3. Bring and defend suits
4. Manage the estate frugally and without waste
5. Sell and encumber when authorized by the court
PERIODS FOR INVENTORY

1. Within 3 months after appointment
2. Annually after such appointment
- Inventories shall be sworn to by guardians
- The guardian shall be allowed of reasonable expenses and compensation not
exceeding 15% of NET INCOME of the guardian

REMEDIAL LAW
RULE 97: TERMINATION OF GUARDIANSHIP
GROUNDS FOR TERMINATION

1. Competency of incompetent
2. Marriage or voluntary emancipation
3. When no longer necessary
- A person declared incompetent or his guardian, relative, or friend may petition to

terminate guardianship
GROUNDS FOR REMOVAL OF GUARDIANSHIP

1. Insanity
2. Incapability to discharge trust
3. Unsuitability
4. Wastage or mismanagement
5. Failure for 30 days after its due to render account
RULE 98: TRUSTEE

- If necessary to carry into effect the provisions of the will.
- Filed in the place where the will is probated
- No person succeeding to a trust as executor or administrator of a former trustee shall
be required to accept such trust
CONDITIONS FOR BOND:

1. Return to a court a true inventory
2. Manage and dispose estate
3. Render once a year true account until trust is fulfilled
4. Settle accounts in court
- A trustee may be removed upon PETITION of the beneficiary and after due notice
and hearing.
- Also if he becomes insane, incapable or unsuitable. He may be allowed to resign
- Trusteeship is terminated when beneficial to the beneficiary
RULE ON ADOPTION:

REMEDIAL LAW
A. DOMESTIC ADOPTION
- Venue is with the FAMILY COURT of the province or city where the prospective
adoptive parents reside.
- Child - below 18 years
- Child legally available for adoption - Voluntarily or involuntarily committed to the
department or accredited child placing agency, freed of the parental authority of
his biological parents or in case of rescission of adoption, his guardians or adopters
- Foundling - Deserted or abandoned infant or child whose parents, guardians or
relatives are unknown or a child committed to orphanage or charitable institution
with unknown facts of birth and is registered in Civil register as Foundling
- Abandoned child - No proper parental care or whose parents have deserted him for
a period of at least continuous months and has been judicially declared as such.
- Residence - actual stay in PH for three consecutive years immediately prior to the
filing go the petition for adoption. Temporary absence for professional, business,
health, emergency not exceeding 60 days in one year shall not constitute a break of
the continuity
QUALIFICATIONS OF FILIPINO CITIZEN TO ADOPT

1. Legal age
2. Good moral character
3. Not convicted of crime involving moral turpitude
4. Emotionally and psychologically capable
5. At least 16 years older than the adoptee except when the adopter is the biological
parent or is the suppose of the adoptee’s parent
6. In the position to support and care
QUALIFICATIONS OF ALIENS
1. Same as filipino nationals
2. Country has diplomatic relations
3. Living in PH for at least 3 years prior to the filing
4. Certified by consul to have legal capacity to adopt
5. His government allows adoptee to enter his country as adopted child
RESIDENCY AND CERTIFICATION ARE WAIVED IF:

1. A former filipino citizen who seeks to adopt a relative within the 4th civil degree of
consanguinity or affinity
2. Adopts the legitimate child of filipino spouse
3. One who is married to a filipino Citizen and seeks to adopt jointly with his spouse a
relative within fourth civil degree of consanguinity or affinity of the filipino spouse
- Husband and wife shall jointly adopt except:

REMEDIAL LAW
1. one spouse seeks to adopt the LEGITIMATE child of one spouse by the other
2. One spouse seeks to adopt his own ILLEGITIMATE child provided that the other
spouse has signified his consent.
3. Spouse are legally separated
- Joint parental authority shall be exercised.
WHO MAY BE ADOPTED:

1. Person below 18 years who has been voluntarily committed to the department or
judicially declared available for adoption
2. Legitimate child of one spouse by the other
3. Illegitimate child by a qualified adopter
4. A person of legal age regardless of civil status if prior to adoption said person has
been consistently considered and treated by the adopters as their own child.
5. A child whose adoption has been previously rescinded.
6. A child whose biological or adoptive parents have died.
7. A child not otherwise disqualified by the law and rules.
- Petition for adoption may contain an application for change of name, rectification
of simulated birth, voluntary or involuntary commitment of children or declaration go
child as abandoned.
AFFIDAVIT OF CONSENT IS REQUIRED FOR THE FOLLOWING:

1. Adoptee, if 10 years or over
2. Biological parents of child if known or legal guardian, child placement agency,
child caring agency which has legal custody of the child
3. Legitimate and adopted children of the adopter if 10 yrs or more
4. Illegitimate child if living with him above 10 yrs
5. Spouse of the adopter or adoptee if any
- The petitioner and adoptee must personally appear
- Supervised trial custody must be done.

- Before the issuance of the decree of adoption, the court shall give the adopter trial
custody of the adoptee for a period of at least 6 MONTHS within which the parties are
expected to adjust psychologically and emotionally
- It shall be monitored by social worker.
- Temporary parental authority shall be vested in the adopter.
- An alien adopter must complete the 6 moths trial custody EXCEPT:
1. A former filipinos who seeks to adopt a relative within the 4th civil degree of
consanguinity or affinity
2. One who seeks to adopt legitimate child of his filipino spouse

REMEDIAL LAW
3. One who is married to a filipino citizen and seeks to adopt jointly with her spouse the
latter’s relative within 4 civil degree consang/affin
- Decree of adoption shall be issued only if Supervised trial custody is satisfactory

- It shall take effect as of the date of the original petition was filed even if the
petitioners die before its issuance
- Only the adoptee may file petition for rescission if 18 years of age or with the
assistance of the department or guardian
- The adoptee if incapacitated must file the petition for rescission within 5 years after
he reaches the age of majority or if he was incompetent, within 5 years after
recovery from such incapacity
GROUNDS FOR RESCISSION:

1. Repeated physical violence and verbal maltreatment despite having undergone
counseling
2. Attempt on the life of adoptee
3. Sexual assault or violence
4. Abandonment or failure to comply with parental obligations
EFFECTS OF RESCISSION:
1. Restoration of parental authority of the biological parents or legal custody of the
department
2. Successional rights shall revert to its prior status. Vested right prior to the judicial
rescission shall be respected
3. Use of name in original birth cert
4. Reinstate original birth certificate.
- Adopter cannot rescind the adoption.
B. INTER-COUNTRY ADOPTION
- Socio-legal process of adopting a filipino child by a foreigner or a filipino citizen
permanently residing abroad where the petition is filed, the supervised trial custody is
undertaken and the decree of adoption is issued outside the PH.
CHILD- below 15
MATCHING - Judicious pairing of the adoptive child and the applicant to promote a
mutually satisfying parent-child relationship.
- The board shall ensure that all possibilities for adoption of the child under the FC have
been exhausted and that it is for the best interest of the child.
- A legally free child may be subject of ICA.

REMEDIAL LAW
WHO MAY ADOPT:

- An alien or a filipino citizen permanently residing abroad may file if he is:
1. At least 27 years of age and at least 16 years older than the child at the time of the
application EXCEPT the adopter is the parent by nature of the child adopted.
2. Married, jointly file.
3. Capacity to act under his national laws.
4. Not convicted of crime involving moral turpitude
5. Eligible to adopt under his national law.
6. Position to provide proper care and support.
7. Uphold the basic rights of the child as embodied in PH laws and UN convention
8. Comes from country with diplomatic relations
9. Possesses all the qualifications and none of the disqualifications
- No child may be matched unless satisfactorily shown that it cannot be adopted

locally
- ICA applies to adoption of filipino children by FOREIGN NATIONALS and FILIPINO
CITIZENS permanently residing abroad.
- Court with jurisdiction in FAMILY COURT of the place where the child resides or may be
found. It may be directly filed with InterCountry adoption board
- As a rule, A child below 7 years old cannot be separated from the mother except
there is a compelling reason like moral depravity, habitual hard, incapacity or
poverty.
RULE 101: PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSON

- Filed in RTC of the province where the person alleged to be is found
- Filed by the DIRECTOR OF HEALTH in all cases if for the public welfare or welfare of
such person.
- The director of health may file a petition to discharge in the same court who ordered
the commitment.
RULE 102: HABEAS CORPUS

- It is a writ which has been esteemed the best and only sufficient defense of personal
freedom having for its object the speedy release by judicial decree of persons who
are illegally restrained of their liberty or illegally detained from the control of those
who are entitled to their custody/
- It does not include the power to punish the respondent for the illegal or improper
detention.
- It shall extend to all cases of ILLEGAL CONFINEMENT OR DETENTION by which any

person is deprived of his liberty of by which the rightful custody of any person is
withheld from the person entitled thereto.

REMEDIAL LAW
- Objective is to inquire into the cause of detention of a person and if illegal the court
orders the release of the detainee.
- It shall not authorize person charged with or convicted of an offense or is suffering
from imprisonment under a lawful judgment.
- Once a person is duly charged in court, He may no longer question his detention
- If charged, the proper remedy now is the quashal of information
- The nature of restraint of liberty need not to be related to any offense so as to entitle
a person of this remedy.
- It may be availed as a post conviction remedy or when there is an alleged violation
of the liberty of abode.
- In the order that the mangyans be removed from their native habitat, Habeas corpus
was the proper remedy (Rubi Vs Provincial board of Mindoro)
- Female sex workers were expelled from Manila to Davao, Writ of Habeas Corpus was
the proper remedy. The female sex workers are still protected with the same
constitutional guarantees. (Lukban vs Villavicencio)
- Writ of habeas corpus is not predicated on the disappearance of a person but on his
illegal detention.
- If the respondents are neither detaining nor restraining, it shall be dismissed.
- HC may not be used as a means of obtaining evidence on the whereabouts of a
person or as a means of finding out who has specifically abducted or caused the
disappearance of a person
- If forcible abduction and disappearance, HC will not apply
- HC MAY APPLY IN:
1. Deprivation of a constitutional right resulting in the restraint of a person
2. If court has no jurisdiction to impose the sentence
3. Excessive penalty has been imposed as such sentence is void
- Once the person detained is duly charged in court, he may no longer file HC
- The term court includes Deportation board of the Bureau of immigration
- Appeal in HC may be done within 48 hours from notice of judgment.
- SC or any member, CA or any member, RTC judge may grant HC
- If issued by SC, CA - Imposable anywhere in PH
- If RTC, Only within its jurisdictional district
WRIT - Commands the production of the body of the person
FINAL DECISION - Determines legality of restraint
- Privilege of the writ of HC may be suspended in cases of invasion, rebellion or when
public safety requires it, the writ itself may not be suspended.
- Writ of HC shall be directed to any officer restraining or detaining a person
- Service of the writ shall be made by leaving the original with the person whom it is
directed and preserving a copy to make return of service. If that person cannot be
found or does not have the prisoner in his custody, the service shall be made on any
other person having or exercising custody

REMEDIAL LAW
- If the person to be produced is seek, the court must be satisfied that the sickness is so
grave that such person cannot be produced without danger.
- If neglects or refuses to obey the writ - contempt and payment of 1k. The same
penalties apply to a person who refused to deliver to the person demanding the
delivery of the prisoner within 6 hours after demand.
- A person who is set at liberty upon HC cannot be again imprisoned for the same
offense unless by the lawful order of process.
- A person committed to prison or in custody of an officer for any criminal matter shall
not be removed therefrom into the custody of another officer unless by legal process.
- Restraint in HC must be actual and effective
- Any restraint which precludes freedom of action is sufficient
- A person out on bail is not entitled to the writ because his detention is merely legal or
technical not actual or physical
- In immigration cases, an immigrant under bond may contest an adverse decision of
the immigration commissioner by means of a petition for HC
- HC may be issued to determine the legality of the extradition
- If no probable cause, there is illegal detention. HC is proper
- An excessive penalty imposed by the final judgment may be corrected by HC
applies only in case where the penalties involved are not provided by the law.
- Courts will not interfere with the detention of an alien by immigration authorities
unless the detainee is being indefinitely imprisoned under the pretense of awaiting a
chance of deportation, or unless the government admits it cannot deport him, or
unless the detainee is being held for too long a period
- HC is a civil remedy
- A petition for the issuance of a writ of habeas corpus may be filed if one is deprived
of his right to a speedy disposition of the case under Art III sec 16 of the consti. He
should however invoke his constitutional right a speedy disposition of the case
against him, not his right to speedy trial under Rule 119 of crimpro.
- He cannot invoke his constitutional right to speedy disposition for the first time only in
the CA when he filed writ of HC
PETITION FOR WRIT OF HABEAS CORPUS IN THE CUSTODY OF MINORS

- Family court - enforceable in judicial region
- May be filed in regular court in the absence of the presiding judge provided that the
regular court shall refer the case to FC as soon as the presiding judge returns
- It may be filed in regular courts where there are no FC
- It may also be filed with SC or CA. The writ may be returnable to a FC or to any
regular court within the region where the petitioner resides or where the minor may
be found
- Hearings may be at the discretion of the court be closed to the public.
RULE 103: CHANGE OF NAME

- It is a matter of privilege not a matter of right

REMEDIAL LAW
- The petitioner has been a bona fide resident of the province where the petition is
filed for at least 3 years prior to the date of filing
- The order of hearing must be published before the trial at least once a week for three
consecutive weeks in some news paper of general circulation published in the
province
- Date of hearing shall be not within 30 days prior to an election nor within 4 months
after the last publication of notice
- Publication is mandatory
- Wrong spelling of name shall be a substantial defect
- A legitimate child of a mother who marries another man after husband’s death shall
not change her surname to adopt the surname of the stepfather. Because it will
cause questions and confusions in real paternity and legitime. The proper remedy is
an adoption.
GROUNDS FOR CHANGE OF NAME:

1. Name is ridiculous, dishonorable or extremely difficult to write or pronounce.
2. Change is the legal consequence of legitimation or adoption
3. Change will avoid confusion
4. One has continuously used and been known since childhood by filipino name and
was unaware of the alien parentage
5. Change is based on the sincere desire to adopt a filipino name to erase the signs of
former alienage without prejudice to anyone
6. Surname causes embarrassment
- Petition for change of name shall be denied because use of baptismal names is not
sanctioned. Baptism is not a condition to change a name. A name given to person in
the church records or elsewhere or by which he is known in the community when at
variance with that entered in the civil registry is unofficial and cannot be recognized
as his real name.
- Change of name can be only availed once.
RULE 104: VOLUNTARY DISSOLUTION OF CORPORATIONS

- Filed in the RTC of the province where the principal office of a corporation is situated.
- Petition shall be signed by the majority of its board of directors or other officers having
the management of its affairs.
- It must be verified by the secretary or president or one of its directors
- If Stock corporation, by the affirmative vote of the stockholders holding and
representing 2/3 of all the shares of stocks issued at a meeting called for such
purpose.
- Published at least once a week for 4 successive weeks in some newspaper of general
circulation and such copy shall be posted for 4 weeks in three public places in such
municipality or city

REMEDIAL LAW
RULE 105: JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL

CHILDREN
- Filed in RTC where the child resides
- Publication once a week for three consecutive weeks in newspaper of gencircul
- An interest party must file within 15 days from service or last date of publication
- Judgment shall be rendered and served upon the civil registrar
RULE 106: CONSTITUTION OF FAMILY HOME (REPEALED)

- Family home is deemed constituted the moment it is occupied as family residence.
RULE 107: ABSENTEES

- When a person disappears from his domicile, his whereabouts being unknown, and
without having left an agent to administer his property, or the power conferred upon
the agent has expired, any interested party, relative or friend may petition from RTC
where the absentee resided before disappearance.
- LEFT A PERSON IN CHARGED OF THE PROPERTY - 5 years
- NO PERSON DESIGNATED - 2 years
WHO MAY FILE:

1. Spouse present
2. Heirs instituted in the will
3. Relatives who will succeed in intestacy
4. Interested person over the property of the absentee
- Service upon the heirs, legatees, devises, creditors and other interested persons at
least 10 days before the day of hearing
- Published for 3 consecutive weeks in newspaper gencirc
- Declaration of absence shall take effect 6 months after it publication
- Spouse shall be preferred when there is no legal separation
- Trusteeship or administration shall cease if:
1. Absentee appears personally or by means of an agent
2. Death is proved and testate or intestate heirs appear
3. Third person appears showing by a proper document that he has acquired the
absentee’s property by purchase or other title
RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

- RTC of province where the corresponding civil registry is located
- Filed by any person interested in any act, event order or decree concerning the civil
status of persons

REMEDIAL LAW
ENTRIES THAT MAY BE SUBJECT TO CANCELLATION:

1. Births
2. Marriage
3. Deaths
4. Legal separations
5. Judgment of annulments of marriage
6. Void marriages
7. Legitimation
8. Adoption
9. Acknowledgement
10. Naturalization
11. Election, loss or recovery of citizenship
12. Civil interdiction
13. Filiation
14. Voluntary emancipation
15. Change of name
- Civil registrar shall be impleaded

- TWIN NOTICES:
- Person named in the petition
- Persons not named in the petition but nonetheless be considered as interested or
affected parties.
RA 9048:
Clerical or typographical errors on entries in a civil register can be corrected and
changes of first names can be done by the concerned city civil registrar without a
need of judicial order.
- First name can be changed by RA 9048

- The law removed the ambit of Rule 108 of the ROC the correction of clerical or
typographical errors
- The proceeding may either be adversary or summary
- If clerical, only summary
- If affects civil status, citizenship, nationality - adversarial
- Anyone who has interest in the petition may file an opposition within 15 days from
notice from the last date of publication
APPROPRIATE ADVERSARY PROCEEDING - one having opposing parties contested
EX PARTE - the party seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it

REMEDIAL LAW
- The civil registrar and all the parties who may be affected shall be impleaded. Non
impleading of a party who may have been inadvertently left out may be notified
through publication
RULE 109: APPEALS IN SPECIAL PROCEEDINGS

- Any interested party may appeal from the court who ordered such judgment:
1. Allows or disallows will
2. Determination of lawful heirs
3. Allowance/disallowance of claims
4. Settlement of account
5. Affecting substantial rights

REMEDIAL LAW
CRIMINAL PROCEDURE
RULE 110: PROSECUTION OF OFFENSES
- Where the repeal of penal law is total and absolute, and the act which was
penalized by a prior law ceases to be criminal under the new law, the previous
offense is OBLITERATED.
- Total Repeal deprives the courts to try, convict and sentence persons charged.
HOW TO INSTITUTE CRIMINAL ACTIONS:

1. For offenses where a preliminary investigation is required pursuant to Section 1of
Rule 112, By filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation
2. For all other offenses, By filing go the complaint or information directly with the MTC
or the complaint with the OFFICE OF THE PROSECUTOR. In manila and other
chartered cities, the complaint shall be filed with the office of the prosecutor unless
otherwise provided in their charter.
- The institution of the criminal actions shall interrupt the running of the period of
prescription of offense charged unless otherwise provided by special laws.
- The complaint or information shall state the designation of the offense given by the
statute, Aver the acts or omission of the offense, and specific the qualifying or
mitigating circumstances to guarantee that the accused must be informed of the
nature of the accusation against him. It is a constitutional right
- The real nature of a criminal charge is determined not from the caption or preamble
but from the recital of facts as alleged in the body of the information.
- For the circumstance of “step parent” be considered, mere common law husband
will not suffice. They must be legally married
- To properly consider minority, age should be alleged.
- Qualifying circumstances cannot be subject to stipulations between parties.
- To properly convict someone with Qualified rape, Age and relationship must be
specifically alleged in the complaint.
- Prosecutor cannot be compelled with include information if he believes no sufficient
evidence exists because he has control over the case and he has discretion
- The complaint or information shall be in writing in the name of the RP against all
persons who appear to be responsible for the offense involved.
COMPLAINT - Sworn written statement charging a person with an offense, subscribed by

the offended party, any peace officer or other public officer charged with the
enforcement of the law violated.

REMEDIAL LAW
INFORMATION - Accusation in writing charging a person with an offense subscribed by

the prosecutor and wiled with the court.
- All criminal actions either commenced by information or complaint shall be

prosecuted under the direction and control of the prosecutor.
- If in MTC there are no available prosecutor, the offended party, any peace officer
or public officer charged with the enforcement of the law may prosecute the
case.
- The authority ceases upon actual intervention of the prosecutor or upon the
elevation of the case to RTC
- In case of heavy work schedule of the public prosecutor or if lack of prosecutor, the
private prosecutor may be authorized in writing by the chief of the prosecution
office or regional state prosecutor to prosecute the case subject to the approval of
the court.
- The private prosecutor shall continue to prosecute the case up until the end of the
trial unless the authority is revoked or withdrawn.
- Adultery and concubinage shall not be prosecuted except upon the complaint of
the offended spouse and both guilty parties shall be included if they are both alive.
- Seduction, abduction, acts of lasciviousness shall be filed by the offended party or
her parents, grandparents, or guardian. If the offended party dies, or no known
parents, grandparents or guardians, The STATE shall initiate the case in his behalf.
- The minor has the right to initiate the prosecution for SARA independently of her
parents, grandparents or guardians unless she is incompetent or incapable.
- Where the offended party who is a minor fails to file, PGG may file the same
- The complaint of the offended party in rape is merely a condition precedent and
not jurisdictional. Since it is not a private crime anymore, It may be prosecuted de
officio.
- The right to file granted to PGG shall be exclusive of all other persons and shall be
exercised SUCCESSIVELY
- Defamation can only be filed by the offended party
- Signature of the offended party is not necessary in an information for rape.
- The rule that it may only be filed by the offended party or PGG is MANDATORY.
Chief of police is unquestionably a third person.
- If on the first day of trial, The prosecutor delegated the prosecution of the crime to
the Private prosecutor and such public prosecutor was absent on the second day.
the evidence can be properly considered.
- The power of the prosecutor in the matter of filing an information is a matter of
discretion which cannot be compelled The court cannot interfere with the
discretion.
- When the case was already filed, the prosecutor may be compelled to proceed
with his duty
- The decision of the public prosecutor can be reversed by the Sec of Justice.
- If there is Grave abuse of discretion, The proper remedy is petition for mandamus.
- Motion for reinvestigation shall be filed in the court where the action is pending.

REMEDIAL LAW
- The C/I shall state the name and surname of the accused or any appellation or
nickname. Or if his name cannot be ascertained, he must be described under a
fictitious name with a statement that his true name is unknown.
- The true name shall be inserted in the complaint upon discovery.
- The remedy of a person charged under a wrong name or identity is file a MOTION
TO QUASH on the ground of lack of jurisdiction over his person. It must be raised
upon arrangement or else waived.
- A C/I should state the designation given to the offense by the statute besides the
statement of the acts or omissions constituting the same and if there is no such
designation, reference should be made to the section or subsection punishing it.
- Amendment of information to include Habitual delinquency or recidivism after a
precious plea is valid. They do not have the effect of charging him with another
offense. The allegations relate only to the range of penalty that the court might
impose in the event of conviction.
- Rule that aggravating and qualifying circumstances shall be alleged is
MANDATORY
- If it did not state the acts and omissions constituting the offense or any special
circumstances as required by ROC, It will not constitute an offense.
- Statement that the accused “willfully, unlawfully and feloniously commit sexual
abuse in his daughter either by raping her or committing Acts of lasciviousness” is
not sufficient averment of acts constituting an offense. Such is void.
- Even if the trial court failed to call the attention to such defect, The court may
motu proprio dismiss the information (SUY SUI VS PEOPLE)
- If charged under a fatally defective information, it is as if the accused was not
charged at all.
- Allegations shall prevail over designation of the offense
- Merely stating that psychological pain and physical injuries were inflicted on the
victim is insufficient
- Affidavit can cure the ambiguity in the complaint regarding the number of
offenses committed.
- The venue in criminal case is the municipality or province wherein the offense was
committed or one of its essential elements took place.
ELEMENTS OF JURISDICTION IN CRIMINAL CASE:

1. Penalty Attached
- Jurisdiction is determined by the penalty IMPOSABLE not actually imposed.
- MTC - If penalty does not exceed 6 years
- RTC - If penalty exceeds 6 years.
- Libel - RTC
2. Nature of the offense charged

- Crimes committed by public officers fall within the jurisdiction of
Sandiganbayan if grade is 27 and above.

REMEDIAL LAW
3. Territorial jurisdiction over the place of crime commission

- However SC may transfer the venue
- The SANDIGANBAYAN has jurisdiction over suits involving the sequestered coco levy
assets and coco levy funds. Jurisdiction of Sandiganbayan includes suits for recovery
of Ill gotten wealth and related cases.
- The exclusive jurisdiction of SB would evidently extend not only to the principal causes
of action but also to all incidents arising from, incidental to, or related to such cases.
- In Illegal recruitment, The victim has the option to file the case in the place of his
residence or in the place where the crime was committed.
- In Falsification of Private document, The venue is the place where the document is
actually falsified to the prejudice of or with the intent to prejudice the third person
regardless whether or not the document is put into improper or illegal use.
- If intimately related to the ill gotten wealth of the marcoses, SB has exclusive
jurisdiction (DISINI CASE)
- Jurisdiction over the person of the accused is acquired either by arrest or voluntary
appearance.
- VOLUNTARY APPEARANCE IF:
1. Pleading to the merits such as filing motion to quash or other pleadings requiring the
exercise of court’s jurisdiction
2. Appearing for arraignment, entering trial
3. Filing bail
“In relation to their office” - Offense need not to be connected with official duties. It is
enough that it is in relation to office.
- In criminal cases, VENUE IS JURISDICTIONAL

- Estafa/Kidnapping/BP22/ Abduction/ Brigandage are a continuing offenses. They
can be tried in any place where any of the elements was committed
- It is not necessary to state t the precise time at which the offense was committed
except if it is a material ingredient of the offense.
- Discrepancies as to the time of occurrence of rape do not affect the substantial
rights of the accused. The difference is merely formal
- Stating the approximate time of the commission of the offense is valid.
- X was arraigned. Motion to amend the information to change the date of
commission. There is no Double jeopardy because precise time is not an essential
element of the offense
- Amendment to include another accused is a formal amendment. It does not change
the nature of the crime.
AMENDMENT WITHOUT LEAVE OF COURT - in substance or in form at any time before

pleads EXCEPT:

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- AMENDMENT BEFORE PLEA which downgrades the nature of the offense

charged in or excludes any accused can be made only upon MOTION BY THE
PROSECUTOR with notice to the offended party and with leave of court.
AMENDMENT AFTER PLEA - Requires leave of court but limited only to formal
amendments provided it does not prejudice the rights of the accused.
- Prejudice the rights of the accused - When the defense under the original information
would no longer be available after the amendment is made.
- Amendment from Frustrated murder to consummated - No need to be re-arraigned.
Mere formal amendment.
- If merely to change the description of the wound to conform to evidence- FORM
- After arraignment, Amended to allege conspiracy - Formal only. His participation as
principal in the time charged could not be prejudiced by the amendment
- A complaint must charge only one offense except if complex crime

- He must object such in the motion to quash or else deemed waived.
-If charged only with 1 count of rape in information, he cannot be convicted of three
rapes even if evidence is proven to that effect. Violation of constitutional provision to
be informed.
- Changing the word from lacerated to stab did not change the nature of the offense.
- If at any time before the judgment, a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint upon the filing of a new one
charging the proper offense in accordance with Rule 119 Section 11 provided that
he would not be placed in double jeopardy.
SUBSTANTIAL AMENDMENT - When the recital of the facts constituting the offense
charged and determinative of the jurisdiction of the court are changed
- Amendment to include aggravating circumstance - form only

- Filed an information. Motion to quash. Filed a motion to amend. The Motion to quash
was denied. The court gave the accused time to file a motion to quash for the
amended information. Accused instead filed a motion for reconsideration which was
denied. Petition for certiorari will not prosper because amendment to information
before plea is allowed. There is no prejudice to the accused.
- If no judgment has been rendered yet, the rule on amendment and filing of a new
case applies. But it is only for original cases not for appealed cases.
LIMITATIONS ON RIGHT TO SUBSTITUTE AN INFORMATION BY FILING A NEW ONE

1. No Judgment has been rendered.

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2. Accused cannot be convicted of the offense charged or of any other offense

necessarily included therein
3. Accused is not placed in double jeopardy
WHERE TO FILE INFORMATION:

1. If committed on railroad train/aircraft/any other public or private vehicle/ on board
a vessel while in the course of the trip - Any place passed during the trip including
the departure and arrival.
2. Committed outside the PH but punishable under Art 2 of the RPC, Any court where
the charge is first filed.
- Venue may be changed by the SC
TRANSITORY OFFENSE - One where some acts material and essential to the crime occurs
in one province and some in another.
LOCAL OFFENSE - One committed in one place
- Venue for malversation or estate is the place where the misappropriation was
committed pr in the place where the accused was to render accounting
- Perjury - in the place where the evidence was submitted.
- Violations of pardon - Where the violation of the conditions occurred
- Offended party may intervene in criminal action unless he waived the civil action or
he expressly reserved the right to institute it separately from the criminal prosecution
DELICTO CONTINUADO - There should be a plurality of acts performed during a period

of time, unity of penal provisions violated and unity of criminal intent or purpose which
means that two or more violations of the same penal provisions are united in one and
the same intent or resolution.
EG: Rebellion. BP 22.
- If revival was not in conformity of the prosecutor, it should be denied. A private

prosecutor has no right to file a motion to revive or to dismiss even if the prosecutor is
furnished with a copy of the motion. It should be the prosecutor who should initiate
- Once a criminal action is filed in court, Any disposition of the case or dismissal or
acquittal or conviction of the accused rests with the EXCLUSIVE JURISDICTION of the
trial court. The trial court should make an independent evaluation or assessment of
the merits of the case.
RULE 111: PROSECUTION OF CRIMINAL ACTION

- When a criminal action is instituted, the civil action for the recovery of civil liability is
IMPLIEDLY instituted with the criminal action UNLESS the offended party:

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1. Waives the civil action

2. Reserves his right to institute it separately
3. Institutes civil action prior to the criminal action
- Such civil action includes:

1. Recovery of indemnity under RPC
2. Damages under Art 32,33,34 and 2176 arising from the same act or omission of the
accused
- Civil liability from other sources of obligation are no longer deemed instituted like
those under Articles 32,33,34 and 2176 with can be prosecuted even without
reservation
- Art 32: Rights and liberties of a person (Constitution)
- Art 33: Defamation, fraud and Physical injuries
- Art 34: Member of a city or municipal Police force refuses or fails to render aid or
protection to any person in case of danger to life or property
- Art 2176: Quasi Delict
- THE AGGRIEVED PARTY HAS THE RIGHT TO COMMENCE AN ENTIRELY SEPARATE AND
DISTINCT CIVIL ACTION FOR DAMAGES. SUCH SHALL PROCEED INDEPENDENTLY OF
ANY CRIMINAL PROSECUTION
- No counterclaim, cross claim, third party complaint may be filed by the ACCUSED in
the criminal case. If he has causes of action, it may be filed in a separate action.
- No filing feels shall be required in ACTUAL DAMAGES except if provided by the laws.
- EXC: BP 22, Filing fee is based on the amount of the check which shall be
considered as actual damages.
- If complaint alleges moral, liquidated, exemplary and temperate, the offended party
shall pay additional filing fees based on the amount alleged.
- If moral, liquidated, exemplary and temperate were awarded and were not alleged,
the filing fee based on the amount awarded shall constitute a lien on the judgment.
- Criminal actions for violation of BP 22 shall be deemed to include civil action. NO
RESERVATION TO FILE SUCH CIVIL ACTION SEPARATELY SHALL BE ALLOWED.
- If civil action for BP 22 was first filed before the criminal, it MAY be consolidated with
the criminal action upon application with the court.
- During the pendency of the criminal action, the running of the period of the
prescription of civil action WHICH CANNOT BE INSTITUTED separately or whose
proceeding has been SUSPENDED shall be tolled.
- THOSE ARISING FROM THE CRIME
- In Art 32,33,34,2176, Prescription lies during the pendency.
DEATH OF THE ACCUSED:

1. Dies before arraignment - Dismissed without prejudice to any civil action the
offended party may file against the estate of the deceased.

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2. After Arraignment and during the pendency - EXTINGUISH THE CIVIL LIABILITY ARISING
FROM THE DELICT
- EXCEPT Art 32,33,34, 2176 or arising from other sources.
- A waiver of any civil actions extinguishes the others.

- Reservation shall be made before the prosecution starts presenting evidence
- After the Filing of the criminal action, the civil action which has been reserved
cannot be instituted until final judgment has been rendered in the criminal action
- EXCEPT ART 32,33,34,2176
- When the offended party instituted the civil action BEFORE the filing of the criminal
action, and the criminal action is subsequently commenced, the pending civil action
shall be SUSPENDED in whatever stage it may be found until final judgment in the
criminal action has been rendered.
- If no final judgment has been rendered by the trial court, the same may be
consolidated with the criminal action upon application with the court trying the
criminal action.
- If the application is granted, the evidence presented and admitted in the civil
action shall be deemed AUTOMATICALLY reproduced in the criminal action,
without prejudice to the admission of additional evidence that any party may
wish to present
- In case of consolidation, both criminal and civil actions shall be tried and
decided jointly.
- Extinction of penal action does not carry with it extinction of civil action EXC: The
extinction proceeds from a declaration that the fact from which the civil liability
might arises did not exist.
TWO KINDS OF ACQUITTAL:

1. Acquittal based on reasonable doubt - he is not exempt from civil liability. It may be
proven by preponderance of evidence only.
2. Acquittal based on the ground that accused is not the author go the act or
omission complained of - No civil liability anymore
- Accused died pending appeal: only civil liability arising from and based solely on the
offense committed is extinguished.
- IF INDEPENDENT CIVIL ACTIONS HAVE BEEN FILED, The heirs of the accused may be
substituted for the deceased without requiring the appointment of an executor or
administrator and the court may appoint guardian adlitem.
- A final judgment entered shall be brought to the testate and intestate proceedings
as a claim against the estate.
- Final judgment in civil action absolving the defendant from civil liability is NO BAR TO
CRIMINAL ACTION

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PREJUDICIAL QUESTION -The preciously instituted CIVIL ACTION involves an issue similar or
intimately related to the issue raised in the subsequent criminal action and the
resolution of such issue determines whether or not the criminal action may proceed.
- Criminal proceeding shall be suspended EXCEPT if intended merely to delay the

criminal proceedings.
- Committed bigamy. He filed declaration of nullity because of absence of marriage
license - NOT PREJUDICIAL QUESTION
- Complaint for sum of money. Defendants testified. Criminal case of false testimony. -
there is PREJUDICIAL QUESTION.
- A prejudicial question does not conclusively resolve the guilt in the criminal case.
- A party who raised a prejudicial question is deemed to have hypothetically admitted
all the elements of the crime alleged in the information.
- It is filed in the office of the prosecutor or court conducting the preliminary
investigation.
- If there is prejudicial question, the court’s power is merely to suspend the criminal
action. it cannot motu proprio dismiss the criminal action
- A civil action for legal separation based on concubinage may proceed ahead of or
simultaneously with the criminal action of concubinage because said civil action is
not one to enforce the civil liability arising from the offense even if both the civil and
criminal actions arise from or are related to the same offense.
- In reckless imprudence resulting to homicide, there is a need for reservation of the
independent civil action
- Frustrated parricide before nullity of marriage - no prejudicial question
- If there is a declaration that the fact from which the civil action arose did not exist -
NO CIVIL ACTION ALLOWED.
- A libel case was filed. During the pendency, the accused died. But at the time he
died, the prosecution has already rested its case. The death of the accused before
final judgment did not extinguished his civil liability. But sine there was no reservation,
the dismissal of the criminal case should have likewise resulted in the dismissal of the
civil case since the same was considered as instituted with the criminal action.
- The dismissal for both did not bar the filing of separate civil action since both
proceedings were terminated WITHOUT FINAL ADJUDICATION. (VILLEGAS VS CA)
- Filing of criminal case on the civil action to enforce civil liability based on other
sources of obligations, The period of prescription is deemed interrupted during the
pendency of the criminal case.
- Where the civil action has been filed separately and trial has not yet commenced, it
may be consolidated with the criminal action upon APPLICATION with the court trying
the case.
- Annulment of certificate of sale and petition for issuance of writ of possession - no
prejudicial question. Both are civil in nature.
- Intra-corporate dispute posed a prejudicial question to the criminal cases.
- Nullification of meetings, elections. and Qualified theft.

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RULE 112: PRELIMINARY INVESTIGATION:

- An inquiry or proceeding for the purpose of determining whether there is sufficient
ground to engender a well founded belief that a crime has been committed and
that the respondent is probably guilty thereof and should be held for trial.
- It may be waived by the accused either expressly or impliedly
- Posting of bond constitutes a waiver such that even if the warrant was irregularly
issued, any infirmity attached to it is cured when the accused submits himself to the
jurisdiction of the court by applying bail.
- Right to PI is substantial. It is a composite part of due process.
- Absence or irregularity of PI does not affect the court’s jurisdiction.
- Dismissal is not the remedy. Neither is a motion to quash. The proper course of action
is to HOLD IN ABEYANCE THE PROCEEDINGS upon such information and to remand
the case for the conduct of PI.
- Prosecutor acts as quasi judicial officer. It is a judicial proceeding.
- Absence of PI does not impair the validity of information.
- PI is required where the penalty prescribed by law is AT LEAST 4 YEARS, 2 MONTHS AND
1 DAY without regard to the fine.
ACCUSED CAN ASK FOR PI IN:

1. If a person is arrested, he may ask for PI before the filing of the complaint but he
must sign a waiver in accordance with Art 125 of RPC in the presence of his counsel.
2. After the filing of information in court without PI, He may within 5 days from the time
he learns of its filing ask for PI.
- If he does not ask for it, WAIVED.
PROCEDURE IN CONDUCTING PI:

1. Complaint shall state the address of the respondent accompanied by affidavits and
other records to establish probable cause. The affidavits shall be subscribed and
sworn before any prosecutor or government official authorized to administer oath.
2. Within 10 days after filing of complaint, Investigating officer shall rule.
- He may issue subpoena
3. Within 10 days from the receipt of the subpoena with the complaint, the respondent
shall submit counter affidavit
4. If the respondent cannot be subpoenaed or does not submit counter affidavit, the
investigating officer shall resolve based on evidence presented.
5. Investigating officer may set hearing. Parties may present but without right to
examine or cross examine.
6. Within 10 days after investigation, he shall determine won there is sufficient ground to
hold respondent for trial.
- Right to PI is only a statutory right. Not constitutional

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- Habeas corpus is not the remedy if no PI was conducted. Motion to quash the
warrant of arrest or reinvestigation may be resorted to.
- In RTC, Right to PI is substantial right
- In MTC, Not a matter of right.
- Right to counsel during PI is necessary. If there is a confession without the presence of
counsel, it is INADMISSIBLE.
- If only formal amendment, New PI is not required.
- The filing of BAIL BOND or posting of BOND is not a waiver to petitioner’s right to PI.
- An application for or admission to bail shall not bar the accused from challenging the
validity of his arrest.
OFFICERS WHO MAY CONDUCT PI:

1. Provincial or city fiscals and assistants
2. National and regional state prosecutors
3. Other officers authorized by law
- Comelec is vested with the power to conduct PI on all election offenses. They
exercise concurrent jurisdiction with DOJ and other prosecuting arms of the gov
- PCGG may investigate and cause the prosecution of ill gotten wealth cases.
- Ombudsman has the power to investigate all malfeasance of gov employees and
officials during their tenure.
- Prosecutor or Sec of Justice cannot conduct reinvestigation after the case is filed
- Ombudsman shall within 30 days determine the existence of probable cause.
- Judge shall personally evaluate the resolution of the prosecutor
- If judge finds probable cause, he shall issue a warrant of arrest or commitment order.
- In case of doubt, judge may ask for additional evidence within 5 days and resolve it
within 30 days.
- Judge may dismiss if the record fails to establish probable cause.
WARRANT OF ARREST IS NOT NECESSARY:

1. If the accused is already under detention.
2. If lawfully arrested without warrant
3. Punishable with a fine ONLY
- When a person is lawfully arrested without warrant,PI is not needed provided that an
INQUEST has been conducted.
- No complaint or information may be filed or dismissed by investigating prosecutor
without the prior written authority or approval of the provincial city prosec/
ombudsman
- Where the investigating assistant prosector recommends the dismissal of the case,
and was reversed by provincial or city prosec, the latter may by himself file the

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corresponding information against the respondent or direct any other assistant or

state prosecutor to do so.
- If resolution of prosecutor is reversed by Sec of Justice, he shall direct the prosecutor
concerned to file the corresponding information without conducting another PI.
- If no certification of PI, it is only a formal defect.
WARRANT OF ARREST - Legal process issued by competent authority directing the arrest
of a person or persons upon grounds stated therein.
JOHN DOE WARRANT - issued to persons whom the witnesses cannot identify. It is void
because it violates constitutional injunction.
- Court may not issue warrant of arrest in cases governed by summary procedure
except if he fails to appear at the trial
- When a person lawfully arrested without a warrant for an offense cognizable by the
RTC, the complaint or information may be filed by the offended party, peace officer,
or prosecutor without a preliminary investigation, on the basis of the affidavit of the
offended party or the arresting officer.
- Before the filing of complaint or information, the person arrested ay ask for PI by a
proper officer but he must sign a waiver of the provisions of ART 125 of RPC with the
assistance of a lawyer and in case of non availability of a lawyer, a responsible
person of his choice.
- Notwithstanding such waiver, he may apply for bail and the investigation must be
terminated within 15 days from its inception
- If information is filed against a person without PI, within 5 days from the time he learns
of the filing, may ask for PI.
- Certiorari is not the proper remedy to annul the result of PI. He may appeal to the
DOJ or file an MR or Reinvestigation
- A party may not be completed to appear in PI
- Any irregularity in PI should be raised before trial or else waived.
- If raised, the court may:
1. Hold in abeyance the trial and conduct PI
2. Remand the case in order for PI be conducted
- Double jeopardy does not attach in PI. It is not a trial.

- Long delay in conduct of PI is violative of right to due process.
PRELIMINARY EXAMINATION - A proceeding for the purpose of determining probable

cause for the issuance of warrant of arrest. It is mandated by the consti. Only judges
may determine probable cause.
PRELIMINARY EXAMINATION PRELIMINARY INVESTIGATION
Done ex parte Generally: Cannot be done ex parte

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PRELIMINARY EXAMINATION PRELIMINARY INVESTIGATION
May be conducted only by judges May be conducted by the judge, prosecutor,

Comelec or PC
Judicial function Executive function
- Personal examination of the judge of the complainant and witnesses is necessary. But
if the judge was the one who conducted the PI, there is no need.
CRIMINAL INVESTIGATION - fact finding inquiry conducted by law enforcement officers

where they gather evidence, interview witnesses, assess the evidence to find out if a
complaint should be filed for PI.
- The one who conducted the PI cannot conduct the Criminal investigation. It is
arbitrary and unjust.
- PI can be conducted ex parte if the respondent cannot be subpoenaed or does not
appear after due notice.
- Lack of certification that PI was conducted does not invalidate the information filed.
- Degree of proof got PI: More likely than not a crime has been committed or was
committed by the suspects.
- No discovery procedure during the PI
- Ombudsman may grant immunity from prosecution to any person whose tertimony or
whose possession and production of documents or other evidence may necessary to
determine the truth in any hearing, inquiry or proceeding.
- The immunity shall not exempt the witness from criminal prosecution of perjury or false
testimony
- The constitution does not vest to COMELEC exclusive power to investigate and
prosecute cases of violations of election laws. They exercise concurrent jurisdiction.
- Probable cause may be established with hearsay evidence as long as there is
substantial basis for crediting the hearsay because it is merely preliminary
- But in ADMINISTRATIVE CASES, what is required is substantial evidence. it cannot rest
entirely or even partially with hearsay evidence. Substantial evidence excludes
hearsay
RULE 113: ARREST

- Is the taking of a person into custody in order that he may be bound to answer for
the commission of an offense.
- Arrest is made by an actual restraint of the person or by his submission to the custody
of the person making the arrest
- No violence or unnecessary force shall be used in making an arrest.

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- EXC: if necessary to secure and detain the offender, overcome his resistance,
prevent his escape and recapture him and protect himself from bodily harm
- It is the duty of the officer to execute warrant without undue delay and deliver him to
the nearest police station
- Warrant of arrest remains valid until arrest is effected or the warrant is lifted.
- Within 10 days from the expiration of the 10 day period, the officer shall make a
report.
- The judge should satisfy himself that there is sufficient proof that a crime has been
committed and that the person to be arrested is probably guilty.
- The judge must personally examine the evidence
VALID WARRANTLESS ARREST:

- A peace officer or any private person.
1. When in his presence, the person to be arrested HAS COMMITTED, IS ACTUALLY
COMMITTING OR IS ATTEMPTING TO COMMIT an offense. (In flagrante delicto)
2. When an offense has in fact just have been committed and he has probable cause
to believe based on his PERSONAL KNOWLEDGE of the fact that the person to be
arrested has committed it. (Hot pursuit)
3. Arresting a prisoner who has escaped from penal establishment or place where he is
service final judgment or temporarily confined while his case is pending.
- Personal knowledge of facts must be based on probable cause.
PROBABLE CAUSE - an actual belief or reasonable grounds of suspicion that the person
to be arrested is probably guilty of committing the offense.
- It does not require that arresting officers to personally witness commission of the
offense with their own eyes.
- In In flagrante delicto, the accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the
presence of the arresting officer.
REQUISITES OF IN FLAGRANTE DELICTO

1. Person to be arrested must execute an overt act indicating that he has just
committed, is actually committing or is attempting to commit a crime
2. Done in the presence or within the view of the arresting officer.
- Irregularity in arrest is deemed waived if did not alleged before plea.

- Probable cause in the issuance of warrant of arrest - facts and circumstances which
would lead a reasonably prudent man to believe that an offense has been
committed by the person sought to be arrested.
- The judge alone can issue warrant

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- Preliminary determination of the prosecutor does not bind the judge. Judge must go
beyond the report of the prosecutor if necessary
- Judge need not personally examine the complaint and his witnesses.
- Finding of probable cause by the judge is merely discretionary
- The option to order the prosector to present additional evidence is not mandatory
- Personal reputation or past criminal citations cannot be considered in personal
knowledge.
- Hearing is not necessary for issuance of warrant of arrest.
- It is enough the at the judge personally evaluates the PROSECUTOR’S REPORT and
supporting documents showing the existence of probable cause.
- An arrest may be made on any day and at any time of the day or night
- The officer shall inform the person to be arrested of the cause of the arrest except
when he flees or forcibly resists before the officer has the opportunity to inform.
- The officer need not to have the warrant in his possession at the time of the arrest but
after the arrest, if the person arrested so require, the warrant may be shown to him as
soon as practicable.
- When making arrest without warrant, the officer/private person shall inform the
person of his authority and the cause of the arrest UNLESS the person to be arrested is
then engaged in the commission of the offense or is pursued immediately after its
commission or after an escape or flees or forcibly resists before the officer has the
opportunity to inform
- An officer may orally summon as many persons as he deems necessary to aid him
- An officer may break into any building or enclosure in which the person to be
arrested is or is reasonably believed to be, if he is refused admittance after he
announced his authority and purpose.
- If person lawfully arrested escapes or is rescued, any person may immediately purse
or retake him without a warrant at any time and in any place within PH.
- Any member of bar or relative have the right to visit and confer privately with the
person.
RA 7438 - an act defining certain rights of persons arrested, detained or under custodial
investigation by officers and providing penalties for violations thereof.
RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION:

1. Assisted by counsel
2. Public officer/employee or anyone authorized shall inform in a language known to
him or his rights to remain silent and to have competent and independent counsel
preferably of his own choice. If such person cannot afford, he must be provided
with a competent and INDEPENDENT counsel
3. Custodial investigation report shall be in writing. If the person does not know how to
read and write, it must be read and explained to him by his counsel otherwise null
and void
4. Any extrajudicial confession shall be in writing and signed by such person in the
presence of his counsel or in the latter’s absence, upon a valid waiver, and in the

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presence of any of the parents, elder brothers and sisters, his spouse, municipal
mayor, municipal judge, chosen by him. Otherwise, inadmissible.
5. Any waiver of Art 125 of RPC shall be in writing and signed by the person in presence
of his counsel or else void
6. Allowed visits with any immediate family, doctor, priest, religious ministers or counsel.
- If the accused has already been charged in court, the petition of questioning the
legality of arrest is moot and academic
DOCTRINE OF HOT PURSUIT - Arrest can be made without warrant of arrest when an
offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that there person to be arrested has
committed it.
RULE 114: BAIL

- security given for the release of the person in custody of law furnished by him or his
bondsman, conditioned upon his appearance before the court as required under
the conditions herein specified.
- It may be given in the form of corporate surety, property bond, cash deposit or
recognizance
ART 3 SEC 13 OF 1987 CONSTITUTION;

All persons except those charged with the offenses punishable with reclusion perpetua
when evidence of guilt is strong shall BEFORE CONVICTION be bailable. The right to bail
shall not be impaired even when the privilege of writ of habeas corpus is suspended
- Excessive bail is not allowed.
CONDITIONS IN BAIL:
1. Effective upon approval and remain in force at all stages of the case unless sooner
cancelled, until the promulgation of the judgment of RTC irrespective of whether the
case was originally filed in or appealed to it.
2. Accused shall appear whenever required
3. Failure to appear at trial without justification despite due notice to him or bondsman
shall be deemed an EXPRESS waiver of his right to present in the date specified in
the notice. May proceed in absentia
4. Bondsman shall surrender the accused to the court for execution of final judgment
BAIL AS A MATTER OF RIGHT:

- Before final conviction.

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MATTER OF DISCRETION
- When charged with a capital offense or reclusion perpetua when evidence of guilt is
STRONG
- For humanitarian reasons, if the accused has failing health, he may be admitted to
bail even if charged with a capital offense and evidence of guilt is strong (DELA
RAMA CASE)
WHEN MAY PERSON BE ADMITTED TO BAIL: Upon conviction with RTC of an offense not
punishable by reclusion perpetua or life imprisonment
- The court in its discretion may allow the accused to continue on provisional liberty
under the same bail bond during the period to appeal subject to the consent of the
bondsman.
- Enrile was considered as geriatric patient by a doctor.
- Bail regardless of the crime charged should be allowed independently of the merits
of the charge provided his continued incarceration is clearly shown to be INJURIOUS
TO HIS HEALTH or to endanger is life.
- The illness of the prisoner independently of the merits is a circumstance and the
humanity of law makes it a consideration which should regardless of the charge and
the stage of the proceeding influence the court to exercise its discretion.
- Granting of provisional liberty to Enrile will enable him to have his medical condition
to be properly addressed and better attended to by the competent physicians in the
hospital of his choice.
- The PH has the responsibility to adhere to the Universal Declaration of Human Rights.
The PH shall value the worth and dignity of human persons (JUAN PONCE ENRILE VS
SANDIGANBAYAN)
- Extradites shall be also given the right to bail provided that they will not be a flight risk
and there is special, humanitarian and compelling circumstance.
- To wait for the termination of the trial is not required. It would defeat the purpose of
bail which is provisional liberty pending trial.
- If minor is charged with murder, BAIL IS A MATTER OF RIGHT because he is entitled to a
reduction of the penalty of one degree.
- If minor was charged under special law, BAIL IS NOT A MATTER OF RIGHT because
he will not be entitled to reduction of one degree (Bravo Vs Borja)
- If court imposed penalty of imprisonment EXCEEDING 6 YEARS BUT NOT MORE THAN 20
YEARS, He shall be denied bail or may cancel his bail if:
1. Recidivist, Quasi recidivist or habitual delinquent or aggravated by reiteracion
2. Preciously escaped from legal confinement, evaded sentence or violated condition
of bail without valid justification
3. Committed offense while in probation, parole or conditional pardon
4. Flight risk

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5. Undue risk to commit another crime
- If sentenced of a penalty exceeding 20 years for series of estate cases, BAIL IS NOT A
MATTER OF RIGHT.
- He may still file for bail with the trial court provided that it has not yet transmitted the
original record to the appellate court. DOCTRINE OF RESIDUAL POWERS
- If original records were transmitted to the appellate court, it shall be filed in such
court. Residual powers will not apply
CAPITAL OFFENSES - Punished by death
- Prosecution has burden of proof to show that evidence of guilt is strong

- Evidence presented at the hearing of application for bail shall be automatically
reproduced.
CONSIDERATIONS FOR FIXING BAIL:

1. Financial ability
2. Nature and circumstances
3. Penalty
4. Character and reputation
5. Age and health
6. Weight of evidence
7. Probability of appearing to trial
8. Forfeiture of other bonds
9. Fugitive of justice
10. Pendency of other cases
PROPERTY BOND - Undertaking constituted as a lien on the real property given as sector
for the amount of the bail
QUALIFICATIONS OF SURETIES TO PROPERTY BOND:

1. Resident owner of real estate within PH
2. If only one, real estate must be worth at least the amount go the undertaking
3. If two or more, entire sum must be equivalent to the whole amount
- if cash bond, accused shall be discharged from the custody

- Recognizance, Whenever allowed pursuant to law or these rules, the court may
release a person in custody on his own recognizance or that of a responsible person.
- When in custody for a period EQUAL TO OR MORE THAN THE POSSIBLE MAXIMUM
IMPRISONMENT, He shall be released immediately
- If destierro, 30 days of preventive imprisonment - released
- If equal to or more than the MINIMUM imprisonment, released on REDUCED BAIL.

REMEDIAL LAW
WHERE TO FILE BAIL:

1. Where case is pending or in absence or unavailability, with any RTC judge or
Metropolitan trial judge. If the accused is arrested in PROVINCE, CITY or
MUNICIPALITY other than where the case is pending, Bail may be filed also with RTC
2. If matter of discretion or released by recognizance, Particular court where pending,
whether for PI, trial or appeal
3. Not yet charged in court, Any court in the province city or municipality where the
person is held in custody.
- BEFORE MTC be allowed to grant bail, The requisites shall be complied:

1. The application must be filed in the court where case is pending. In the absence or
unavailability of the judge, it may be filed with another branch of the same court
within the province or city
2. If arrested in the province, city or province other than the case is pending, bail may
be filed with any RTC go the place. If no judge is available, in MTC judge therein.
- Granting of bail shall be subject to judicial discretion

- To be a matter of discretion if charged with a capital offense, The controlling factor is
that the evidence of guilt is strong.
- The court may upon good cause increase or decrease bail.
- FORFEITURE OF BAIL: When specifically required by the court to appear and fails, such
bond is considered forfeited and bondsman are given 30 days to produce principal
or to show cause why bond shall not be forfeited.
- Failing to do so will warrant the bondsmen to be jointly and severally liable for the
amount of the bond.
CANCELATION OF BOND: surrender of the accused or proof of death

- Deemed automatically cancelled upon acquittal of the accused or dismissal of the
case or execution of final judgment of conviction.
- Cancellation of the bond is without prejudice to any liability of the bond.
- An accused may be rearrested without necessity of a warrant if he attempts to

depart from PH without any prior permission of the court.
- If accused is convicted by final judgment, he may not be allowed to post bail UNLESS
applied for probation
- The posting of bail does not constitute a waiver of any question on the irregularity of
arrest. he can still question it before arraignment
- ARRIBA VS PEOPLE: Posting of bail is deemed to be a forfeit of habeas corpus petition
which becomes moot and academic.
- Even if the accused jumped bail, he cannot be denied bail. The remedy is to
increase the amount of bail.
- Bail is not available to military officers as a matter of tradition and exception to the
general rule. He cannot invoke equal protection of rights.

REMEDIAL LAW
- Granting the petition for bail on the same day that the PI was terminated did not
cure the infirmity. RTC Has not yet acquired the jurisdiction over the subject matter.
- If bail is a matter of discretion, the prosecution must first be accorded with an
opportunity to present proof that guilt of the accused is strong.
- If the prosecutor fails to appear or refuses to adduce evidence, the court may ask
the prosecution questions as would ascertain the strength of the evidence.
- If sentenced to reclusion perpetua and appealed to SC, he cannot be entitled to
bail because it clearly imports that the evidence of guilt is strong.
- When an accused is charged with a capital offense or an offense which is
punishable by reclusion perpetua and is out on bail, and after trial is convicted by the
trial court of the offense charged, his bond shall be CANCELLED and the accused
shall be placed in confinement pending resolution of his appeal (PEOPLE VS
CRESENCIA REYES)
IF ON PROVISIONAL LIBERTY AND CONVICTED TO RECLUSION PERPETUA:

1. Court shall order bondsman to surrender the accused within 10 days from notice
2. RTC shall order the transmittal of the accused to the confinement and shall remain
there pending resolution of his appeal
3. If not surrendered within 10 days, his bond shall be forfeited and an order of arrest
shall be issued by this court.
- A hearing is indispensable if person is charged with capital offense.

- Judge may not base his determination on the basis of affidavits
- It does not include the wavier on the inadmissibility of the fruits of unjustified
warrantless arrest.
- An act of the accused of agreeing to be in prison during trial is a waiver of the right
to bail
- If capital offense, the court shall issue warrant of arrest without the recommended
bail. Let the accused apply for bail
- In receiving evidence on bail, a court is not required to try the merits of the case. He
must nevertheless conduct a summary hearing which is brief and speedy method of
receiving and considering the evidence of guild and is practicable and consistent
with the purpose of the hearing
- A judge cannot hear a petition for bail in a capital offense on the same day that the
petition was filed.
- Proper remedy to review the validity of grant of bail - RULE 65 CERTIORARI
- Bail can only be availed of only by one who is in custody.
- If an accused fails to appear at the hearing for petition for bail because he was
hospitalized and his lawyer informed the court, he is considered under the
CONSTRUCTIVE CUSTODY of the law. His application for bail can still be considered
- An accused originally charged with murder though eventually convicted of
homicide only is not entitled to bail during the pendency of his appeal because the
appellate court may still convict him of murder

REMEDIAL LAW
- An application for bail shall not bar the accused from challenging the validity of his
arrest or LEGALITY OF THE WARRANT ISSUED.
- Applying for and posting for bail is a wavier of defects in warrantless arrest.
- Arraignment of the accused is not a prerequisite to the conduct of hearing for
petition for bail.
- For when bail is a matter of right. an accused may apply for and be granted bail
even prior to the arraignment (SERAPIO VS SB)
- A motion to quash the information may be filed even during the pendency of
petitioner bail. They are not inconsistent remedies. A person may apply for bail from
the moment that he is deprived of his liberty by virtue of his arrest or voluntary
surrender.
- If the motion to quash is granted on the ground that the information does not charge
any offense and the case is dismissed, the accused is ordered released and petition
for bail is moot and academic (SERAPIO VS SB)
- The court cannot hear two petitions for bail filed by different accused. It shall
constitute grave abuse of discretion of the court (SERAPIO VS SB)
- Habeas corpus is not the proper remedy if accused was arrested pursuant to
information filed in court.
- The order granting or dismissing petition for bail can be questioned because it is an
interlocutory order. It can be questioned by way of special civil action for certiorari.
RULE 115: RIGHTS OF THE ACCUSED

- To be presumed innocent unless proven guilty beyond reasonable doubt
- To be informed of the nature and cause of the accusation against him
- To be present and defend in person and by counsel at every stage from arraignment
to promulgation of judgment.
- To testify as a witness in his own behalf but subject to cross examination on matters
covered by direct examination
- To be exempt from being compelled to be a witness against himself.
- To confront and cross-examine the witnesses.
- To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.
- To have a speedy, impartial and public trial
- To have right to appeal in all cases allowed
PRESUMPTION OF INNOCENCE:
- Conviction must be based on moral certainty.
- If accused was ordered to present evidence ahead of the prosecution, it shall be
violative of the right to be presumed innocent and due process. It violated the order
of presentation of evidence.
- But if the accused admitted his guild but interposed the defense of JUSTIFYING OR
EXEMPTING CIRCUMSTANCES, The trial may be reversed.

REMEDIAL LAW
- If charged with only one count of rape, and was convicted for two, it is violative of
the right to be informed of the nature of the accusation against him
- The failure of the prosecution to file its opposition for more than 2 years violated the
right of the accused for speedy trial.
- The real nature of the criminal charge is determined by the recital of facts not from
the technical name given by the fiscal
- A person charged with murder qualified by evident premeditation cannot be
convicted for murder qualified with treachery because it is violative of the right of the
accused to be informed of the nature of the accusation against him.
- If it is merely stated in the complaint that the accused committed sexual abuse either
by raping her or committing acts of lasciviousness, it is null and void for it is violative of
the right to be informed of the nature of the accusation
- If merely alleged that he committed sexual abuse, still null and void
- GR: If not alleged in the information, he cannot be convicted for such.
- EXC: His failure to assail the sufficiency of the information is a waiver to such right.
- An accused cannot be convicted of higher offense than that which he has charged
in the complaint except it is necessarily included therein.
RIGHT TO COUNSEL
- Appointment of counsel de officio by judge is valid.
- When counsel for an accused charged with capital offense manifests that he is
waiving the right of the accused to present evidence and is instead filing a
DEMURRER TO EVIDENCE, The trial court is MANDATED to inquire into the voluntariness
and full knowledge of the consequences for such waiver.
TRIAL IN ABSENTIA
Requirements:
1. Accused must be arraigned
2. Accused must be duly notified.
3. Accused’s failure to appear must be unjustifiable.
- Arraignment in absentia is not allowed. Even with publication.
EFFECTS OF WAIVER OF THE RIGHT TO APPEAR BY ACCUSED:

1. Waiver of the right to present evidence
2. Prosecution can present evidence
3. Court can decide without accused’s evidence
- Trial in absentia is not violative of right to due process. The judgment will still be based
on the evidence presented as the prosecution is still bound to prove the guilt of the
accused.

REMEDIAL LAW
RIGHT TO SELF INCRIMINATION

- No person shall be compelled to be a witness against himself.
- It is not applicable to juridical persons
- It applied in fact finding investigations or administrative investigations.
- Prosecutor cannot require a person to TAKE DOWN DICTATION IN ORDER THAT HE MAY
HAVE A SAMPLE OF HIS HANDWRITING for it is not a mere mechanical movement. It
involves intelligence and is equivalent to TESTIMONIAL KNOWLEDGE. Violation of self
incrimination
- If accused took the witness stand, it is a waiver of the right against self incrimination
on cross examination with respect to the offense in question.
- But if it pertains with OTHER OFFENSES, He can invoke his right
- A witness cannot refuse to take the witness stand on the ground of self incrimination
but when the question asked is incriminatory, HE CAN INVOKE.
KINDS OF IMMUNITY STATUTES:

1. Use and fruit immunity - Where the evidence obtained cannot be used to prosecute
the person. It cannot be used against him. He however can be prosecuted.
2. Transactional Immunity - Evidence obtained cannot be used against the person in
any criminal prosecution. He cannot be prosecuted
Mechanical acts not meant to unearth, undisclosed facts but to ascertain physical
attributes determinable by simple observation are not covered by the rule.
EG: Submit to test to extract virus, expectorate morphine, pregnancy test, foot printing
test, police lineup.
- What is prohibited by the constitutional guarantee against self incrimination is the use
of physical or moral compulsion to extort communication from the witness not an
inclusion of his body for evidence.
- Photographs taken during reenactment is not admissible in evidence because they
are based on invalid extrajudicial confession.
RIGHT TO CONFRONTATION 
- Right to meet the witnesses against him face to face. Right of the accused to cross
examine the witness.
- Exception: Admission of Dying declaration.
- If cannot be subject of cross examination, HEARSAY

- If cross examination was not completed because the witness died, it can still be used
for as long as it has already covered the material points touched upon in direct
examination.

REMEDIAL LAW
COMPULSORY PROCESS
- If witness failed to appear, the judge shall take effective measures like arrest,
subpoena, contempt, modes of discovery in order to compel his appearance.
SPEEDY, IMPARTIAL AND PUBLIC TRIAL
SPEEDY TRIAL - One that is free from vexatious, capricious and oppressive delays, the
purpose of which is to free the accused from anxiety and expenses of litigation
- It is violated when unjustified postponements are asked for and secured.

- If it was the accused who resorted to tactical maneuvers, he cannot complain of
such violation
PUBLIC TRIAL - One held openly or publicly. It is sufficient that relatives and friends who
want to watch the proceedings are given the opportunity
- Trial in bilibid is still public trial for as long as the public has not been excluded.
- Exclusion of public is still valid if evidence to be produced is offensive to decency or
public morals
- A dismissal grounded on the denial of the right of the accused to speedy trial has the
effect of acquittal that would bar further prosecution of the accused for the same
offense.
- GR: The prosecution cannot appeal or bring error proceedings from a judgment in
favor of the defendant in criminal case in the absence of statute that clearly
conferring that right.
- Errors of judgment are not appealable by the prosecution.
- Appeal by the prosecution from the order of dismissal of the criminal case by the trial
court may be allowed only on errors of jurisdiction when there was denial of due
process resulting to lack of jurisdiction
- Double jeopardy will attach in case the prosecution appeals a decision ACQUITTING
the accused. An acquittal rendered in Grave abuse of discretion does not really
acquit and therefore does not terminate the case as there be no double jeopardy
based on void indictment
SPEEDY TRIAL ACT OF 1998

- Law that ensures speedy trial of ALL CRIMINAL CASES before the SB, RTC, MTC. Speed
alone is not the chief objective of trial. Genuine respect for the rights of all parties
and the right to procedural due process are required as essential
- Pre trial is mandatory
- All agreements shall be reduced in writing signed by the accused and counsel others
the same cannot be used as evidence
- In non-appearance of counsel for the accused, they can be cited for contempt.
- Pre trial order shall bind the parties, limit the trial to matters not disposed of and
control the course of action during the trial unless modified by the court.
- Pre trial order may be modified to prevent manifest injustice.

REMEDIAL LAW
LIMIT FOR TRIAL OF CRIMINAL CASES: The entire period shall not exceed 180 days from
the first day of trial.
- EXC: Summary procedure, Penalty prescribed by law does not exceed 6
months of imprisonment or fine of 1k or both, Those authorized by Chief justice of SC.
-Arraignment of the accused shall be held within 30 days from the filing of the
information or from the date the accused appealed before the justice or judge.
- Where plea of not guilty, the accused shall have at least 15 days to prepare for trial
- Trial shall commence within 30 days from arraignment as fixed by the court.
- A negative defense shall require the protection to prove the guilt
- Affirmative defense may modify the order of trial and require the accused to prove
such defense.
30 DAYS SHALL BE EXTENDED ONLY WHEN:

1. For 180 days for the first 12 calendar month period from the effectivity of the law
2. 120 days for the second 12 calendar period.
3. 80 days for the third 12 month period
- If the accused is not brought to trial within the prescribed time of 30 days or 180 days,
it shall be dismissed.
- If accused fails to move for dismissal prior to trial or entry of plea of guilty, it shall
constitute a waiver of the right to dismissal for the failure to commence trial.
RULE 116: ARRAIGNMENT AND PLEA

- Arraignment is the formal mode of implementing the constitution right of the accused
to be informed of the nature of the accusation against him
- Before the court where the complaint or information has been filed.
- Made in an open court by judge or clerk
- Furnish a copy of the complaint or information
- Read the same in the language and dialect known to him
- If accused pleads guilty but present exculpatory evidence - PLEA OF NOT GUILTY
- Accused cannot impose conditions or interpose defenses if he pleads guilty
- A plea of guilty is an unconditional admission of guilt.
- If accused is under detention but has not been arraigned, His case shall be raffled
within 3 days from filing of complaint. He shall be arraigned within 10 days from date
of raffle. And pre trial conference shall be held within 10 days after arraignment
- If OFFENDED PARTY fails to attend arraignment, The accused may enter a plea of
guilty to a lesser offense which is necessarily included in the offense charged.
- Arraignment shall be made within 30 days from the date the court acquires
jurisdiction over the person of the accused.

REMEDIAL LAW
- The time of the pendency of motion to quash or bill of particulars or other causes
justifying suspension shall be excluded in counting
- Judgments are void of no arraignment
- If the accused went to trial without arraignment but his counsel had the opportunity
to cross examine the witnesses of the prosecution and after the prosecution he was
arraigned, the defect was cured. In this case the accused has been given the
opportunity to be heard.
- If the trial proceeded without arraignment and counsel for the accused called the
attention of the court and the trial proceeded, PROCEEDINGS ARE VOID.
- Conviction based on improvident plea of guilty may be set aside when ONLY such
plea is the sole basis of judgment.
- When the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the consequences
of his plea.
- Authority of an attorney to bind his clients to any admission of facts made by him is
limited to matters of judicial procedures. An admission that operates a waiver,
surrender or destruction of his client’s cause is beyond the scope of his implied
authority.
- Mere written manifestation of entering a plea of guilty is not enough. He must
personally appear.
- If amendment of information is material or substantial, Arraignment is required
- Arraignment may be done even pending the resolution of a motion to dismiss
- No arraignment in absentia
- If accused refused to enter a plea or entered a conditional plea - NOT GUILTY
PLEA OF GUILTY TO A LESSER OFFENSE - Provided that it is necessarily included in the

offense charged.
EG: MURDER TO HOMICIDE
- There must be a consent of the prosecutor and complainant or else void. Thus, he
may not be put in double jeopardy. If properly done, it is equivalent to conviction of
the offense charged for purpose of double jeopardy
- No amendment of complaint if plead to lesser
- XYZ are charged of a crime. XY pleaded guilty. Z pleaded not guilty. Z was acquitted.
To acquit XY, the must withdraw their former plea of guilty to not guilty
- Accused may still plead guilty to a lesser offense after the prosecution has rested his
case
- If accused pleaded not guilty and changed it to plea of guilty, the court shall
conduct searching inquiry
SEARCHING INQUIRY - More than informing cursorily the accused that he faces a jail
term.
- Plea of guilty to an offense that is not capital - no need for searching inquiry

REMEDIAL LAW
- At any time before the judgment of conviction becomes final, the court may permit
an improvident plea of guilty to be withdrawn.
- It should be the court/judge that should conduct searching inquiry. Not the counsel.
The requirement is stringent and mandatory
- Bill of particulars is available in criminal prosecutions. he may file it at or before the
arraignment.
- In plunder, it is not sufficient to just allege that the amount of ill gotten wealth
amounted to 50 million. The manner of amassing whether through a combination or
series of overt acts under Section 1 D of RA 7080 must be alleged.
- A person cannot be prosecuted for plunder if this resulted from a single criminal act.
- Enrile is entitled to know the APPROXIMATE dates atlas of the receipt of kickbacks and
commissions so that he could prepare the necessary pieces of evidence.
- The identified projects and napoles NGO are material facts that should be clearly
identified.
- Counsel de officio - members of the bar in good standing. But in localities, were no
members of the bar are available, the court can appoint any person, resident of the
province of good repute and ability to defend the accused.
- CDO must be given at least one hour to consult with the accused before
arraignment. He has at least 2 days to prepare for trial
WHEN MAY COURT SUSPEND ARRAIGNMENT:

1. Accused appears to be suffering from unsound mental condition
2. Existence of valid prejudicial question
3. Petition for review of resolution of the prosecutor
- Pleaded guilty of homicide. He was brought to witness stand and testified he killed for
self defense. Acquittal was not valid because one who pleads guilty unconditionally
admits his guilt. The court should have stopped the proceedings and order the RE-
ARRAIGNMENT and acquit him for self defense.
RULE 117: MOTION TO QUASH

- At any time before entering his plea, the accused may move to quash the complaint
or information
- It shall be in writing signed by the accused or his counsel
- It shall specify distinctly the factual and legal grounds
- The court shall consider no grounds other than those stated EXCEPT Lack of
jurisdiction over the offense charged, prescription, extinction of liability and double
jeopardy
GROUNDS FOR MTQ:

1. Facts charged do not constitute an offense
2. Court trying the case has no jurisdiction over the offense charged or the person of
the accused.

REMEDIAL LAW
3. Officer who filed the information had no authority to do so.

4. Does not conform substantially to the prescribed form
5. More than one offense is charged except complex crimes
6. Criminal liability or action has been extinguished
7. Contains averments which if true would constitute a legal excuse or justification
8. Accused has been previously convicted or in jeopardy of being convicted or
acquitted of the offense charged.
- Custody of law is not required for the adjudication of reliefs other than application for
bail.
- While the accused are not yet under the custody of the law, any question on the
jurisdiction over the person is deemed waived when he filed any pleading seeking an
affirmative relief except in cases when the accused invokes the special jurisdiction of
the court by impugning jurisdiction over the person
- An information which lacks certain essential allegations mat still sustain a conviction
when the accused fails to object to its sufficiency during the trial
- Lack of probable cause is not one of the grounds for MTQ.
- MTQ is based on a defect in information which is evident on its face.
- If the information is seriously defective, the remedy is not MTQ but BILL OF
PARTICULARS
- If information fails to allege the time of the commission of the offense with sufficient
definiteness, the remedy is Bill of particulars
- MTQ is hypothetical admission of the facts alleged in information
MODES OF EXTINGUISHMENT CRIMINAL LIABILITY

1. Death of convict
2. Service of sentence
3. Amnesty
4. Absolute pardon
5. Prescription of crime
6. Prescription of penalty
7. Marriage of the offended woman as provided by Art 344 RPC
- If the offense charged is one against the state like adultery or concubinage, death of
the offended party before final conviction will not abate the prosecution.
- Death of party in private crimes does not also abate the prosecution
- Absolute pardon removes all liabilities resulting from it.
- Pardon in rape must be done before the institution of the criminal action
- The marriage shall extinguish the criminal action and remit the penalty already
imposed upon him. This applies to accomplices, co principals and accessories.
- In multiple rape, marriage of offended party to one of the accused shall not
extinguish the criminal action against other accused.

REMEDIAL LAW
- If crimes prescribed, the state loses the right to prosecute.

- Extinguishment of crime does not result to extinguishment of civil liability
- Filing of the information before a court which has no jurisdiction over the subject
matter interrupts the running of the period of prescription.
- Prescription shall commence to run from the day the crime was discovered by the
offended party and it shall be interrupted by filing of a complaint or information and
shall commence to run again when the proceedings shall be terminated without the
accused being convicted or acquitted or unjustifiably stopped for any reason not
imputable to him.
- The term of prescription shall not run when the offender is absent from the PH
- In continuing act, the reckoning period is the latest act.
- Void information cannot be validated by presentation of evidence.
- Accused cannot appeal on an order denying MTQ because it is merely an
interlocutory order.
IF MOTION TO QUASH IS DENIED:

1. He should plead
2. Go to trial without prejudice to the special defenses he invoked
3. He can appeal from the judgment of conviction
- Special civil action for certiorari is not the proper remedy to assail the denial of MTQ.
The proper procedure is to enter a plea, go to trial and appeal to the judgment
rendered
- No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act. (SEC 21, ART 3
CONSTITUTION)
REQUIREMENTS OF DOUBLE JEOPARDY

1. Valid indictment
2. Competent court
3. Valid Arraignment
4. Valid plea entered
5. Case is dismissed or terminated without the express consent of the accused.
- Double Jeopardy (DJ) may be invoked only for the same offense or identical
offenses.
- If there are two different laws although both offenses arise from the same facts - no
DJ
- If already served sentence or was pardoned, he can no longer be reinvestigated for
the same offense
- Mere fixing of two or more information charging the same offense is not an
appropriate basis for the invocation of DJ since the first jeopardy has not yet set in by

REMEDIAL LAW
a previous conviction, acquittal or termination of the case without the consent of the
accused.
- The remand of the case for further hearing is merely a continuation of the first
jeopardy
- When the court preemptively dismissed the case, it violated the fundamental right of
the accused to due process. Its orders are null and void and cannot constitute a
proper basis for claim of DJ
DEAN ALBANO’S OWN DOUBLE JEOPARDY DOCTRINES: (TAGLE-ROBLES-JARDIN)

- A was charged with an offense. Upon his motion, it was dismissed. He cannot invoke
DJ. When he moved for the dismissal, he waived the right to interpose it. He
prevented the state from presenting evidence and the court from pronouncing such
guilt or innocence. (PEOPLE VS TAGLE CASE)
- But when he invoked speedy trial, DJ may be invoked as an exception to the rule.
(PEOPLE VS ROBLES CASE)
- EXCEPTION TO THE EXCEPTION:
1. When the delay was caused by the accused. (JARDIN)
2. When he agreed a provisional dismissal even if he invoked speedy trial.
(GINES)
- Where the dismissal of the case was ordered upon motion or with the express consent
of the accused, he is deemed to have waived his protection against double
jeopardy.
- Dismissal made at a time when the prosecution still had to present several witnesses
here the order of dismissal was issued at a time when the case was not ready for trial
is NULL AND VOID
- Submission of affidavits to the court does not warrant the inference that the
prosecution had already finished presenting its evidence because the affiants are still
required to testify and affirm the contents thereof.
- Dismissal after eleven years is equivalent to acquittal. There was unreasonable delay.
Hence there is DJ
- Dismissal on the ground of lack of jurisdiction is not equivalent to acquittal.
- Since the SB proceeding was sham and a mock trial, the state was denied of due
process and DJ cannot be invoked in criminal cases where there was denial of due
process
EXCEPTIONS FOR DOUBLE JEOPARDY:

1. Dismissal is made upon or with the express consent of the accused.
2. Dismissal is not an acquittal or based upon consideration of evidence or merit of the
case.
3. Question passed upon appellate court is purely legal
- Dismissal of case based on demurrer to evidence is dismissal on the merits amounting

to acquittal. DJ would attach

REMEDIAL LAW
SAME OFFENSE FOR DJ:

1. Very same offense
2. Attempt or frustration of an offense
3. Necessarily includes or included in the offense charged
TEST: Evidence to prove the offenses are the same.
- Charged for frustrated homicide. Pleaded not guilty. Victim died later. He charged
again for homicide. No DJ because the second offense was not yet existing at the
time of the first prosecution
- If MTQ is sustained, the court may order that another information be filed. The
accused if in custody shall remain so unless he shall be admitted to bail.
- An order sustaining the MTQ is not a bar to another prosecution for the same offense
unless the motion was based on the grounds that the criminal action or liability has
been extinguished and that the accused has been previously convicted or in
jeopardy of being convicted or acquitted of the offense charged.
CONVICTION OF THE ACCUSED SHALL NOT BE A BAR TO ANOTHER PROSECUTION IF:

1. Graver offense developed due to supervening facts arising from the same act or
omission
2. Facts were discovered only after the filing of the former complaint
3. Plea of guilty to the lesser offense was made without the consent of the prosecutor
and offended party
RES JUDICATA DRESSED IN PRISON GRAY - The same as res judicata (People vs Pineda)
- If the accused has already satisfied or served in whole or in part the judgment in the
lesser offense, he shall be credited with the same in the event of the conviction for
the graver offense.
PROVISIONAL DISMISSAL (PD)

- It can be done if there is consent from the accused and with not to the offended
party
- A mere PD does not terminate a criminal case.
- PD of offenses punishable by imprisonment not exceeding 6 years or a fine of any
amount or both shall become permanent 1 YEAR AFTER THE ISSUANCE of the order
without the case having been revived.
- The provision shall be construed to mean that the order of dismissal shall become
permanent one year after the service of order of dismissal on the public prosecutor
who has control over the prosecution without the criminal case having been
revived.

REMEDIAL LAW
REQUISITES FOR 2 YEAR AND 1 YEAR BAR RULE TO APPLY 

1. The Prosecution with the express conformity of the accused or the accused moves
for a provisional dismissal of the case. or both of them move for PD
2. Offended party is notified of the motion
3. Court issues an order granting the motion and dismissing the case provisionally
4. Public prosecutor is served with a copy of the order.
- Express consent is given either viva voce or in writing

- The mere inaction or silence of the accused to a motion for provisional dismissal of
the case or his failure to object does not amount to express consent.
- Motion of the accused for PD is an express consent
- The case may be revived by the state within the time bar either by refiling of the
information or by filing of a new information for the same offense or an offense
necessarily included therein.
- There will be no need for another Preliminary investigation
WHERE NEW PRELIMINARY INVESTIGATION IS REQUIRED:

1. Original witnesses recanted or died
2. Original witnesses are not available
3. New persons are charged
4. Original charged has been upgraded
- In crimes involving private interest, The heirs of the victims must be given notifce of
any motion for PD
- If accused filed a motion for determination of probable cause and examination of
witness, and the court considered it as PD, the said heirs where deprived of right to
be heard. The state can revive or refile the case.
- If offended party is represented by a private counsel, the reckoning period should
commence to run from the time such private counsel was actually notified of the
order of provisional dismissal
- The time bar is for the benefit of both the accused and the state.
- Time bar cannot be given retroactive effect for it diminishes the right of the state to
revive cases
RULE 118: PRE TRIAL

- Mandatory in criminal cases.
- The court shall after arraignment and within 30 days from the date the court acquires
jurisdiction over the person shall order pre trial conference.
 
CONSIDER THE FOLLOWING:
1. Plea bargaining
2. Stipulation of cats

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3. Marking
4. Wavier of objections to admissibility
5. Such matters as will promote a fair and expeditious trial
- It must be reduced in writing and signed by the accused and counsel

- Pre trial order shall bind the parties, limit the trial to matters disposed of and control
the course of the action during the trial UNLESS modified by the court to prevent
manifest injustice.
- No trial shall be conducted until after arraignment
PROFFER OF EVIDENCE on the basis of evidence exhibited by the accused during the
pre trial is not sufficient and acquittal of the accused on this basis alone is null and void.
- The absence during pre trial of any tines for the prosecution listed whether or not it is
for the offended party or the accused, IS NOT A VALID GROUND FOR DISMISSAL
- Parties may agree to use the evidence in the civil case to the criminal case
RULE 119: TRIAL

- The trial shall commence within 30 days from the receipt of the pre trial order.
- The entire trial period shall not exceed 180 days from the first day of trial except when
authorized by SC
EXCLUDED IN THE COMPUTATION OF TIME:

1. Any period of delay resulting from other proceedings concerning the accused,
including but not limited to the following delays:
1. Examination of physical/mental condition
2. Proceedings with respect to other criminal charges
3. Extra ordinary remedies against interlocutory orders
- It shall be read with Rule 65. Rule 65 shall not interrupt the course of the principal
case unless a TRO or writ of preliminary injunction has been issued.
4. Pre trial proceedings not exceeding 30 days
5. Existence of prejudicial question
2. Absence or unavailability of essential witnesses
- Absent - Whereabouts are unknown or cannot be determined
- Unavailable - Whereabouts are known but presence cannot be obtained
3. Information is dismissed upon the motion of the prosecution
4. Accused is joined for trial with a co-accused over whom the court has not acquired
jurisdiction
5. Delay resulting from a continuance

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FACTORS IN GRANTING CONTINUANCE

1 Whether or not the failure to grant a continuance would likely make a continuation of
such proceeding impossible and result to miscarriage of justice.
2. Case taken as a whole is novel, unusual or complex.
ORDER OF TRIAL:
1. Prosecution shall present evidence
2. Accused present evidence
3. Rebuttal and sur-rebuttal unless court permits additional evidence
- When the accused has been held to answer for an offense, he may upon motion
with notice to all parties have witnesses conditionally examined in his behalf.
- Defense witness may be examined before trial.
- If material witness will not testify, he may be ordered to post bail or else he may be
imprisoned until he complies
- Failure of the accused to attend the examination shall be considered a waiver
- The trial of an accessory can proceed without waiting the result of the separate
charge against the principal and accessory which are separate and distinct.
- Granting of separate trial if there are several accused is a matter of discretion.
STATE WITNESS
- When two or more persons are jointly charged, the court may direct one or more of
the accused to be discharged with their consent so that they may be witnesses for
the state.
REQUIREMENTS:
1. Absolute necessity for the testimony of the accused
2. No other direct evidence available for the proper prosecution of the offense except
his testimony
3. It can be substantially corroborated in its material points
4. He does not appear to be the most guilty
5. Not at the time been convicted of any offense involving moral turpitude
REQUISITE FOR DISCHARGE OF WITNESS:

1. Sworn statement of the witness at the hearing in support of the discharge
- The discharge can be anytime from the filing to the time the defense starts to offer
any evidence
- Discharge operates as acquittal
- If information is amended, discharge is still binding upon subsequent information

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DEMURRER TO EVIDENCE
- After the prosecution has rested its case, the court may dismiss the case on the
ground of insufficiency of evidence.
- On the court's own initiative or on the motion of the accused with or without leave of
court.
- It shall be filed within a non extendible period of 5 days after the prosecution rests its
case.
- If leave of court is granted, the accused shall file the demurrer to evidence within non
extendible period of 10 days from notice
- Order denying the motion for leave of court to file demurrer to evidence or demur
itself shall not be reviewable by appeal or certiorari before judgment. The remedy is
to proceed with the trial and appeal the decision if adverse.
- Once leave of court is denied and accused filed a demurrer to evidence, the court
has no longer the discretion to allow the accused to present evidence.
- If without leave of court, waived the right to present evidence.

- If Demurrer is granted, he may present evidence for the civil aspect of the case.
- It can only be filed after the prosecution has rested its case
- If acquitted because of demurrer to evidence, state cannot appeal for it constitutes
double jeopardy
- Motion to reopen presupposes that either or both parties have formally offered and
closed their evidence.
PRESENCE OF THE ACCUSED IS REQUIRED AND BOND MAY BE FORFEITED IF FAILS TO

APPEAR:
1. Arraignment
2. Promulgation of judgment except light offenses
3. Identification purposes
4. Court requires so with due notice
RULE 120: JUDGMENT

- Adjudication by the court that the accused is guilty or is not guilty of the offense
charged and the imposition of proper penalty and civil liability provided for by law on
the accused.
- Written personally and directly prepared by the judge and signed by him
- In case of acquittal, the judgment shall make a finding on the civil liability of the
accused
MEMORANDUM DECISION - One in which the appellate court may adopt by reference
the findings of facts and conclusions of law contained in the decision appealed from

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- Oral dismissal of criminal case does not attain the effect of judgment.
- It is sufficient if the statute or principle concerned is clear and obvious and readily
understood from the facts. No need to completely specify the law violated.
- Penalty must be definitely and positively indicated.
- In multiple rapes, each is responsible not only for the rape personally committed by
him but also that of the others.
- Court may render a judgment if information alleged two or more offenses and
accused did not object to the information.
- Where there is variance between the offense charged in the complaint and that
proved or established by evidence, and the offense as charged is INCLUDED IN OR
NECESSARILY INCLUDES the offense proved, The accused shall be convicted of the
offense proved included in that which is charged.
- An offense charged necessarily includes that which is proved when some of the
essential elements or ingredients of the former as this is alleged in the complaint
constitute the latter.
- If a person was charged as principal, he may be included as accessory

- Judgment is promulgated by reading the same in the presence of the accused and
any judge of the court in which it was rendered.
- For light offense, the judgment may be pronounced in presence of his counsel or
representative.
- The judgment may be promulgated by the clerk of court.
- The court promulgating the judgment shall have the authority to accept the notice of
appeal and approve the bail bond pending appeal provided that if the decision of
the trial court convicting the accused changed the nature of offense from NON
BAILABLE TO BAILABLE, the application for bail can only be filed by appellate court.
- PROMULGATION IN ABSENTIA: In case the accused fails to appear at the scheduled
date of promulgation of judgment despite notice, the promulgation shall be made
by recording the judgment in the CRIMINAL DOCKET and serving him a copy thereof
at his last known address or thru his counsel
- Failure of the accused to appear without justifiable cause shall lose his right to avail
the remedies available under the rule.
- A judgment of conviction may upon motion of the accused be modified or set aside
by the court rendering it before the judgment has BECOME FINAL OR APPEAL HAS
BEEN PERFECTED.
- Judgment becomes final
- After lapse of period for perfecting an appeal
- When sentence was satisfied or served
- Accused has expressly waived in writing the right to appeal
- Accused has applied for probation
- A JUDGMENT OF ACQUITTAL whether ordered by trial or appellate court is final,

unappealable and immediately executory upon promulgation.

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REQUIREMENTS FOR VALID TRIAL IN ABSENTIA

1. Arraigned
2. Duly notified of the trial
3. Failure to appear during the trial is unjustified
- If person was tried in absentia, his right to appeal is not lost. What is lost is the right to
present evidence and cross examine the witnesses against him. He can appeal
proved that he files it within 15 days from the judgment
PROBATION
- Matter of privilege
- Discretion of the court.
- It merely suspends the execution of the sentence but it does not follow that the civil
liability of the accused is extinguished.
- It shall be availed of at first opportunity.
- An accused must not have appealed his conviction before he can avail of
probation.
- Maximum term of 6 years imprisonment. (6 years and 1 day - not probationable)
- Person was guilty of 10 counts of BP22. He can still avail of probation because
multiple prison terms imposed in one decision are not and should not be added up
- The multiple terms are distinct from each other and if none exceeds the limit set out
by probation. he is entitled to probation. The law states MAXIMUM not total
- Probation has no bearing on civil aspect.
APPEAL FROM JUDGMENT OF CONVICTION - Disqualified from availing.
APPEAL FROM THE PENALTY IMPOSED - Not disqualified (VILLAREAL VS PEOPLE)

- Or when the appeal merely intended to review the crime for which the
accused was convicted and that the accused should only be liable for lesser offense.
- The accused shall first file a motion for reconsideration of the decision of the trial
court
WHEN NOT GRANTED:

1. Convicted by the trial court of a crime where the penalty imposed is within the
probational period or a file and the accused files a NOTICE OF APPEAL
2. Appeal puts the merits of his conviction in issue. (MARUHOM VS PEOPLE)
RULE 121: NEW TRIAL/RECONSIDERATION

- At any time before a judgment of conviction becomes final/

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GROUNDS FOR NT
1. Errors of law or irregularities have been committed during the trial prejudicial to the
substantial rights of the accused
2. New material evidence has been discovered that could not with reasonable
diligence have discovered and produced at trial.
GROUNDS FOR RECONSIDERATION

1. Errors of law or fact which requires no further proceedings
EFFECTS OF GRANTING:
1. GRANTED ON THE GROUND OF ERRORS OF LAW OR IRREGULARITIES COMMITTED - All
the proceedings and evidence not affected shall stand but those affected shall be
set aside.
2. GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE - Evidence already taken
stand and newly discovered evidence be considered together with those already in
record.
- Original judgment shall be set aside and a new judgment be rendered accordingly
MOTION TO REOPEN MOTION FOR NEW TRIAL
Available after either or both parties have Available after promulgation of judgment
already presented their evidence
No specific rules Specified in ROC
May be properly granted only after either both Proper only after rendition of judgment.
parties have formally oﬀered and closed their
evidence but before judgment
- Mistake of the lawyer is not a ground for new trial

- Affidavit of recantation is not a ground for new trial.
- An affidavit of desistance is not a ground for new trial
RULE 122: APPEAL

- May be taken within 15 days from promulgation of judgment. This period for perfecting
an appeal shall be interrupted from the time a motion for new trial or recon is filed until
notice of order overruling the motion shall have been served upon the accused or
counsel
- An appeal may be taken from all FINAL JUDGMENTS AND ORDERS:
1. Decided by MTC to RTC
2. RTC to CA
- Any party may appeal from final judgment or oder except if the accused would be
placed in double jeopardy

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- The maximum penalty shall be taken into account for appellate jurisdiction of court.
HOW MAY APPEAL BE TAKEN

1. The appeal to RTC or CA in cases decided by RTC in the exercise of its original
jurisdiction - Notice of appeal with the court which rendered the judgment or order
appealed from and serving copy to adverse party
2. Appeal to ca in cases decided by etc in appellate
3. Appeal to SC in cases where the penalty imposed is life imprisonment or where the
lesser penalty is imposed but involving offenses committed on the same occasion or
arising out of the same occurrence that gave rise to the more serious offense
4. Appeal to SC by certiorari
5. Death penalty is imposed - automatic review by SC
- If personal service of copy of notice of appeal cannot be served, the court may
order publication of notice and it shall be equivalent to personal service.
- When there is waiver of NOTICE and the interests of justice so require, appeal may be
entertained without notice
EFFECT OF APPEAL IF SEVERAL ACCUSED:

1. Appeal taken by one or more shall not affect those who did not appeal except if
judgment is favorable and applicable to them
2. Civil appeal of the offended party shall not affect the criminal aspect of the
judgment
3. Execution of judgment appealed from shall be stayed as to the appealing party.
- An accused who jumps bail of flees to foreign country forfeits his right to appeal.
- EXC: If capital offense. Review by SC is mandatory (OLD RULE)
- Court may allow the appellant to withdraw his appeal before the record has been
forwarded by the clerk to the appellate court.
- Right to appeal is purely statutory
- Prosecution may not appeal. No appeal in acquittal
- If case is erroneously dismissed, no appeal is allowed - Double jeopardy
EXCEPTION TO RULE THAT NO APPEAL IN ACQUITTAL:

1. Express consent of the accused
2. Not acquittal or based upon consideration of evidence on the merits.
3. Purely legal questions
4. Grave abuse of discretion
- Extent of the offended party to appeal is limited to civil liability

- Appeal is perfected by filing notice of appeal

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- There may be oral appeal when accused manifests intention to appeal in open
court.
RULE 123: PROCEDURE IN MTC

- Same procedure in RTC except summary procedure.
RULE 124: PROCEDURE IN CA:

- Appellate court may upon motion of the appellee or its own motion and notice to
appellant dismiss the appeal if fails to file his brief within the time prescribed by this
rule except in cases that the appellant is represented by counsel de officio
- No judgment shall be revered or modified unless the appellate court after an
examination of all the appeal papers is of the opinion that error was committed.
- CA shall have the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve.
RULE 125: PROCEDURE IN SC

- Procedure in CA shall be followed.
- When court en banc is equally divided, the case shall be reheard.
RULE 126: SEARCH AND SEIZURE
SEARCH WARRANT (SW)- An order in writing issued in the name of the PH signed by the
judge and directed to a peace officer commanding him to search for PERSONAL
PROPERTY described therein and bring them to the court.
WHERE TO FILE APPLICATION:

1. Any court whiten whose territorial jurisdiction a crime was committed.
2. For compelling reasons, any court within the judicial region where the crime was
committed if the place of the commission of the crime is known or any court within
the judicial region where the warrant shall be enforced.
- If criminal action has been filed, the application shall only be made in the court
where the action is pending.
PROPERTIES THAT MAY BE SEIZED:

1. Subject of the offense
2. Stolen or embezzled and other proceeds or fruits of the offense
3. Used or intended to be used as means of committing offense.
- SW shall not be issued except upon probable cause.

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- Judge shall personally examine in the form of searching questions and answers in
writing and under oath the complainant and witnesses.
- Officer may break open any outer or inner door to execute the warrant
- No search of a house, room or any other premises shall be made except in the
presence of lawful occupant thereof or any member of his family or in the presence
of two or more witnesses of sufficient age and discretion residing in the same locality
- The warrant must direct that it be served in the day time.
- If property is on the person or in the place ordered to be searched, a direction may
be inserted that it shall be served at ANY TIME OF THE DAY OR NIGHT
- SW is valid for 10 days. Thereafter it shall be void.
- Officer must give detailed receipt and deliver it to the judge together with the true
inventory duly verified under oath
- A person lawfully arrested may be searched for dangerous weapons or anything

which may be used for the commission of crime without search warrant
QUASHAL OF SEARCH WARRANT PRELIMINARY INVESTIGATION
Determine won warrant shall be quashed Determine WON information shall be filed
Render the evidence obtained inadmissible
REMEDIES AGAINST SW:

1. Motion to quash (alternative)
2. Motion to suppress the evidence seized (alternative)
3. Replevin is also allowed for objects seized
SEARCH WITHOUT WARRANT:

1. Times of war and within the area of military operation
2. An incident of lawful arrest
1. Lawful arrest
2. Contemporaneous with arrest
3. Within the permissible area of search
3. Prohibited articles open to eye and hand
4. When consented
5. Incident of inspection
GENERAL WARRANT - SW vaguely described and did not particularized there personal
properties to be seized without a definite guideline to the searching team. VOID.
- Legality of warrant can only be contested by the party whose rights have been
impaired. It is purely personal and cannot be availed by third parties

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- In corporations, officers cannot object to the admission of papers.

- Certiorari shall not be resorted EXCEPT when the constitutional issues raised are so
serious and urgent where a petition for certiorari can be taken cognizance by SC
- Unreasonable searches and seizures is applicable to all WHETHER CITIZENS OR ALIENS
RULE 127: PROVISIONAL REMEDIES IN CRIMINAL CASES

- They are allowed. Like attachment.

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EVIDENCE
RULE 128: GENERAL PROVISIONS
EVIDENCE - Means sanctioned by these rules of ascertaining in a judicial proceeding

the truth respecting a matter of fact
ADMISSIBLE if RELEVANT and NOT EXCLUDED by the law or the rules.
KINDS OF EVIDENCE:
1. DIRECT - existence or non existence of the fact in issue directly
2. INDIRECT - Circumstantial evidence, inferences drawn from facts known
3. RELEVANT - Evidence having any value in reason as tending to prove any matter
provable in an action. When it has a tendency in reason to establish the probability
or improbability of an fact in issue
4. MATERIAL - Directed to prove fact in issue as determined by the riles of substantive
law and pleadings
5. COMPETENT - Not excluded by law
6. PRELIMINARY OR BEST - Affording the greatest certainty of the fact in question
7. SECONDARY - Inferior because of existence of more original source of information.
8. EXPERT - Testimony of one possessing in regard to a particular subject or department
9. PRIMA FACIE - Standing alone, unexplained or uncontroverted is sufficient to
maintain the proposition affirmed.
10. CONCLUSIVE - Evidence which is incontrovertible
EQUIPONDERANCE OF EVIDENCE RULE - When there is nothing in evidence which shall

incline to it to one side, the court will find for the DEFENDANT. Plaintiff must rely on the
strength of his evidence and not on the weakness of the defendant’s claim.
CIRCUMSTANTIAL - Established by simple deduction based on a reasonable inference

from a series of facts or circumstances.
CORROBORATIVE - An additional evidence of DIFFERENT CHARACTER

CUMULATIVE - Additional evidence of SAME CHARACTER
POSITIVE - Declares affirmatively that a certain event happened.
- A confession cannot be sued as evidence against a co-accused for the same is

considered HEARSAY. It may be utilized as CORROBORATIVE EVIDENCE.
- An extrajudicial confession is admissible only against the confessant, it is admissible as
corroborative evidence that tend to establish the guilt of co accused.

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SUBSTANTIAL EVIDENCE - relevant evidence as a reasonable man might accept as

adequate to support a conclusion.
Evidence - Means of proof

Proof - Effect of evidence. Establishment of a fact by evidence
FACTUM PROBANDUM - Ultimate fact or the fact sought to be established

FACTUM PROBANS - Evidentiary fact or the fact which the factum probandum is
established.
- Rules of evidence in criminal and civil cases are the same
ADMISSIBILITY - determined by the concurrence of relevancy and competency

CREDIBILITY - matter for court to appreciate
CLASSES OF EVIDENCE:
1. Real
2. Documentary
3. Testimonial
- Admissibility of evidence has nothing to do with probative value or weight

- Obtained in Entrapment - LEGAL. EVIDENCE ARE ADMISSIBLE
- Obtained in Instigation - INADMISSIBLE. Illegally obtained,
- Evidence obtained without search warrant as a general rule is illegally obtained
hence inadmissible because of the doctrine of FRUIT OF THE POISONOUS TREE.
- Uncounselled confession is inadmissible because it is violative of constitution
- Tape recording of private conversation is not admissible because it is a violation go
Anti wire tapping act or other privacy related laws.
- Evidence obtained by wife in violation of privacy of communication and
correspondence is inadmissible against husband even in a case filed by her against
him
- Mental retardation per se does not affect credibility. A mentally retarded may be a
credible witness.
- Confession before a Bantay Bayan if there was no compliance with constitutional
requirements such as the miranda rights are not admissible.
- Bantay bayan are recognized by LGU to perform functions relating to the
preservation f peace and order at barangay level. Thus, Any inquiry that is made by
them has a color of a state related function and objective in so far as the entitlement
to his constitutional rights like MIRANDA RIGHTS. (PEOPLE VS LAUGA)
- If there was no opportunity to cross examine, it is inadmissible EXCEPT if the failure to
cross examine was due to the faculty of the accused.

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MULTIPLE ADMISSIBILITY OF EVIDENCE - it is relevant and competent for two or more

purposes.
CONDITIONAL ADMISSIBILITY - evidence that which appears to be immaterial is

admitted by the court subject to the condition that its connection with other facts
subsequently to be proved will be established.
CURATIVE ADMISSIBILITY - evidence otherwise improper is admitted to contradict

improper evidence introduced by the other party.
- As a rule, collateral matters are not allowed EXCEPT when they tend in any
reasonable degree to establish the probability or improbability of the fact in issue
PROSPECTANT COLLATERAL MATTERS - preceding of the fact in issue but pointing forward
to it like moral character, motive, conspiracy
CONCOMITANT COLLATERAL MATTERS - Accompanying the fact in issue and pointing to

it like alibi or opportunity and incompatibility
RETROSPECTANT COLLATERAL MATTERS - succeeding the fact in issue but pointing

backward to it like flight and concealment, behavior of the accused upon being
arrested, finger prints,
JUDICIAL NOTICE - cognizance which courts may take without proof of facts which they
are bound or are supposed to know by virtue of their office.
- Personal knowledge of the judge is not judicial notice.

- Admission made in responsive pleadings to claims that have been dismissed are not
judicial admissions but they are merely extrajudicial admissions.
- A paraffin test can establish only the presence or absence of nitrates on hands. It is
inconclusive.
- Courts reject the admissibility of polygraphs
- Extrajudicial confessions are admissible to the maker only but inadmissible to his co
accused.
RULE 129: WHAT NEED NOT BE PROVED

- A court shall take judicial notice without introduction of evidence of:
1. Existence and territorial extent of states
2. Political History
3. Forms of government
4. Symbols of nationality
5. Law of nations

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6. Political constitution and history of the Philippines

7. Official acts of the legislative, executive and judicial departments
8. Laws of nature
9. Measure of time
10. Geographical divisions
DISCRETIONARY JUDICIAL NOTICE:

1. Public knowledge
2. Capable of unquestionable demonstration
3. Ought to be known to judges because of their judicial functions
- An admission, verbal or written, made by a party in the course of the proceedings in

the same case does not require proof
- Admissions may be contradicted only by showing that it was made through palpable
mistake or that no such admission was made.
RULE 130: RULES OF ADMISSIBILITY
OBJECT EVIDENCE - Those addressed to the senses of the court.
- If the document is to be marked as evidence, the same must be presented in court.

A party cannot just put into the record of the case. It must be exhibited to the court.
DOCUMENTARY - consists of writings or any material containing letters, words, numbers,

figures, symbols or other modes of written expressions offered as proof of their contents.
BEST EVIDENCE RULE - When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself
EXCEPTIONS:
1. When the original has been lost, destroyed or cannot be produced in court without
bad faith on the part of the offeror.
2. When the original is in the custody or under control of the party against whom the
evidence is offered and the latter fails to produce it after reasonable notice
3. Original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole
4. Public record in the custody of a public officer or is recorded in public office.
CONSIDERED ORIGINAL IF:

1. Original of the document is one of the contents of which are the subject of inquiry

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2. Document is in two or more copies executed at or about the same time with
identical contents
3. Entry is repeated in regular course of business, one being copied from another at or
near the time of the transaction
- Best evidence rule is only applied to prove the CONTENTS of the document but not
the truth thereof.
SECONDARY EVIDENCE RULE

- When the original of the document has been lost or destroyed or cannot be
produced in court, the offeror upon proof go its execution or existence may prove its
contents by a copy or by a recital of its contents in some authentic document or by
testimony of witnesses in the order stated.
- If under the control or custody of adverse party, REASONABLE NOTICE to produce it

shall be necessary.
- Public documents shall be proved by CERTIFIED TRUE COPY issued by the public
officer in custody
- Photocopy of sales invoices are inadmissible. Since it is secondary evidence, the
person alleging must prove that it falls under either one of the circumstances where
secondary evidence shall be allowed.
- Before a party is allowed to adduce secondary evidence, he must prove:

1. Existence or due execution of the original
2. Loss and destruction of the original or reason for non production
3. Absence of BF of the offeror.
PAROL EVIDENCE RULE - When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon and there can be
between the parties and their successors in interest no evidence of such terms other
than the contents of the written agreement.
EXCEPTION: (A party may present evidence to modify, explain or add to terms of

written agreement if he assails:)
1. Intrinsic ambiguity, mistake, or imperfection in the written agreement.
2. The failure of the written agreement to express the true intent and agreement of
parties.
3. Validity
4. Existence of other terms agreed upon by parties after the execution of written
instrument.
- AGREEMENT INCLUDES WILLS

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- Prior or contemporaneous verbal agreement is generally not inadmissible

- Parol evidence is admissible to show that a contract was fraudulently misread to one
not able to read and write.
- Parol evidence applies to an agreement in writing regardless of whether public or
private document.
- Language of a writing shall be interpreted according to the legal meaning it bears in

the place of its execution unless parties intended otherwise.
- Construction - adopted as will give effect to all.
- Intention of the parties shall be pursued.
- When an instrument is partly written in words and in printed form, written words shall
prevail.
TESTIMONIAL EVIDENCE
- May be oral or in writing
QUALIFICATION OF WITNESSES
- All persons who can perceive, and perceiving, and can make known their
perception to others.
- Even an insane person can testify during their lucid intervals
- Mentally retarded can also testify
- Witness cannot be disqualified based on political or religious beliefs or interests
WHO MAY NOT BE A WITNESS:

1. Those whose mental condition at the time of their production for examination is
incapable or intelligently making known their perception to others.
2. Children whose mental maturity is such as to render them incapable of perceiving
the facts respecting which they are examined and of relating them truthfully
BASIC REQUIREMENTS OF CHILD’S COMPETENCY AS WITNESS:

1. Capacity of observation
2. Capacity of recollection
3. Capacity of communication
- Under Rule on examination of child witness, every child is now presumed qualified to
be a witness
- The mere relationship or intimacy with the victim is no justification for throwing aside
the testimony of the witness. There must be a showing that the testimony is false or
incredible in itself
- During their marriage, neither the husband nor the wife may testify for or against the
other without the consent of the affected spouse, EXCEPT in a civil case by one

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against the other or in a criminal case for a crime committed by one against the
other or latter’s direct descendants or ascendants
DEAD-MAN’S STATUTE - If one party to the alleged transaction is precluded from

testifying by death, insanity or other mental disabilities, the other party is not entitled to
the undue advantage of giving his own uncontradicted and unexplained account of
the transaction.
Parties or assignors of parties to a case or persons in whose behalf a case is
prosecuted against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand against the
estate of such deceased person or against such person of unsound mind, CANNOT
TESTIFY as to any matter of fact occurring before the death of such deceased person or
before such person became of unsound mind
PRIVILEGED COMMUNICATION:
1. Husband and wife - during or after the marriage, cannot be examined without the
consent of the other as to any communication received in confidence by one from
the other during the marriage EXCEPT in a civil case by one against the other or in a
criminal case for a crime committed by one against the other or latter’s direct
descendants or ascendants
2. Attorney - Client - any communication made y the client to him or advice given
thereon in the house of or with a view to professional employment. EXTENDS TO
attorney’s secretary, stenographer or clerk to knowledge acquired in such capacity
3. Doctor - patient - Person authorized to practice medicine, surgery or obstetrics
cannot in a civil case without the consent of a patient be examined as to any
advice or treatment given by him or any information which he may have acquired
in attending such patient in professional capacity which information was necessary
to enable him to act in such capacity
4. Minister or priest in confession - any confession made to or any advice given by him
in his professional character in the course of discipline enjoined by the church
5. PUBLIC OFFICER - During his term of office or afterwards, as to communications
made to him in official confidence when the court finds that the public interest
would suffer by the disclosure.
- Hospital records are covered by physician - patient privilege.

- Husband filed a complaint for declaration of nullity on the ground of psychological
incapacity. Husband may testify on confidential psychiatric report on his wife without
offending the privilege.
- No person may be compelled to testify against his PARENTS, OTHER DIRECT

ASCENDANTS, CHILDREN OR OTHER DIRECT DESCENDANTS.
DOCTRINE OF ADOPTIVE ADMISSION - A third party’s statement becomes the admission

of the party embracing or espousing it.

REMEDIAL LAW
ADOPTIVE ADMISSION - party’s reaction to a statement or action by another person

when it is reasonable to treat the party’s reaction as an admission of something stated
or implied by the other person. (ESTRADA VS DESIERTO)
- Flight is inconsistent with innocence of the accused.

- Pre trial admissions in civil cases its one of the instances of judicial admissions.
- X confided to a director that she committed adultery. Statement shall be admissible
- An admission before the presence of the TV crew and reporter is INDICATIVE OF
VOLUNTARINESS OF SUCH ADMISSION
- Amended pleadings disappear from the record. Hence it is not anymore judicial
admissions. It must be formally offered.
- Admissions in pleadings are not always conclusive. They may be repudiated in the
testimony
- Letter of apology for rape may strengthen conviction
OFFER OF COMPROMISE
- Civil case - not an admission of liability and not admissible in evidence against the
offeror.
- Criminal - Except QUASI OFFENSES or those allowed by law to enter compromise,
Implied admission of guilt
- An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or criminal
liability
- Plea of guilty later withdrawn is not admissible

- If compromise was made just to have peace and avoid litigation - NOT ADMISSIBLE
- A plea for forgiveness may be considered as analogous to an attempt to
compromise.
GR: Admission of a person cannot prejudice the rights of another.

EXCEPTIONS:
1. Act or declaration of a partner or agent f the party within the scope of his authority
and during existence of partnership or agency.
2. Act or declaration of a conspirator relating to the conspiracy
3. Where one derives title to property from another.
RES INTER ALIOS ACTA - The rights of the party cannot be prejudiced by an act,
declaration or omission of another
- In order that admission be admissible against co accused, there must be an
independent evidence aside from the extrajudicial confession to prove conspiracy.
- Extrajudicial confession may be admissible when it is used as corroborative evidence.

REMEDIAL LAW
REQUISITES IN FORDER THAT DECLARATION OF CONSPIRATOR MAY BE ADMISSIBLE TO

OTHERS:
1. Conspiracy is proven by evidence other than admission itself
2. Admission relates to the common objects
3. Made while the declarant was engaged in carrying out the conspiracy
ADMISSION BY EVIDENCE - an act or declaration made in the presence and within the
hearing or observation of a party who does or says nothing when the act or declaration
is such as naturally to call for action or comment if not true and when proper and
possible for him to do so.
FUNDAMENTAL REQUISITES FOR ADMISSIBILITY OF CONFESSION

1. Voluntary
2. With assistance of competent and independent counsel
3. Express
4. In writing
- Barangay captain must adhere with the constitutional protection of being informed
of his rights.
- In custodial investigation he was not accorded counsel. He made a confession. Non
objection to the presentation of evidence is deemed a waiver.
- Evidence that one did or did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing of another time.
- But it may be received to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage.
- A witness can testify only to those facts which he knows of his PERSONAL
KNOWLEDGE. That which are derived from his own perception except as otherwise
provided in the rules.
- Sound of person’s voice is an acceptable means of identification where it is
established that the witness and the accused knew each other personally for a
number of years. Sound of cough as example - admissible and credible as evidence
EXCEPTION TO HEARSAY:
1. DYING DECLARATION - Declaration of a dying person made under the
CONSCIOUSNESS OF AN IMPENDING DEATH may be received in any case wherein
his DEATH is the subject of inquiry
2. DECLARATION AGAINST INTEREST - Declaration made by a person deceased, or
unable to testify against the interest of the declarant if the fact asserted in the
declaration was at the time it was made so far contrary to declarant’s own interest
that a reasonable man in his position would not have made the declaration unless
he believed it to be true.

REMEDIAL LAW
3. ACT OR DECLARATION AGAINST THE PEDIGREE - Act or declaration of person

deceased or unable to testify in respect to the pedigree of another person related
to him by birth or marriage where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or
declaration
- Pedigree - Relationship, family genealogy, birth, marriage, death, dates when
the places occurred.
4. FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE - Reputation or tradition

existing in a family precious to the controversy may be received if witness testifying
thereon be also a member of the family either by consanguinity or affinity. Entries in
family bibles or other family books or charts, engravings on rings, family portrait and the
like may be received as evidence of pedigree
5. COMMON REPUTATION - Existing previous to the controversy respecting facts of public

and general interest more than 30 years old, or respecting marriage or moral character.
Monuments and inscriptions in public places may be received as evidence
6. PART OF RES GESTAE - Statements made while in startling occurrence is taking place
or immediately prior to or subsequent thereto with respect to circumstances thereof.
Statements accompanying an equivocal act material to the issue and giving it legal
significance may be received as part of res gestae
7. ENTRIES IN THE COURSE OF BUSINESS - Made at or near the time of the transactions to
which they refer by a person deceased, unable to testify who was in the position to
know the facts stated if such person made the entries in his professional capacity or in
the performance of duty and in the ordinary course of business.
8. ENTRIES IN OFFICIAL RECORDS - Made in the performance of his duty by a public

officer of the PH or by the person in the performance of a duty specially enjoined by
law
9. COMMERCIAL LISTS AND THE LIKE - Statements of matters of interest to persons

engaged in an occupation contained in a list, register, periodical or other published
compilation as tending to prove the truth of any relevant matter so stated in that
occupation and is generally used as relied upon by them
10. LEARNED TREATISES - Published treatise, periodical or pamphlet on a subject of

history, law, science or art as tending to prove the matter stated if court takes judicial
notice or witness expert subject testifies that the writer of the statement is recognized in
his profession
11. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDINGS - Witness deceased or

unable to testify, given in a former case or proceeding, judicial or administrative
involving the same parties and subject matter

REMEDIAL LAW
- Conviction can never be based on hearsay evidence. Any oral or documentary

evidence is hearsay in nature if its probative value is not based on personal
knowledge
- Failure to object the evidence renders it admissible and court cannot on its own
motion disregard such evidence.
- Private certification is hearsay where the person who issued the same was never
presented as witness.
- Hearsay evidence may be admissible if not objected but it does not mean it can be
credible.
REQUISITES FOR DYING DECLARATION:

1. Concern the cause and surrounding circumstances of the declarant’s death
2. At the time it was made, the declarant was under a consciousness of impending
death
3. He was a competent witness
4. Declaration is offered in evidence in a criminal case for homicide, murder, parricide
where the declarant is the VICTIM.
- Deadman’s statute applies only to a case or claim filed AGAINST the administrator or
representative of the estate. If filed or initiated by administrator, it cannot apply.
- An uncounselled confession of the accused is inadmissible as evidence but it can be
admitted as verbal admission by the accused established through the testimonies of
the persons who heard it or who conducted the investigation
- Dying declaration must be complete. It should contain everything that constitutes the
res gestae of the subject of his statement.
- Oral dying declaration is allowed. Simple not of the head or glance of the eyes can
be done.
- The fact that the victim after the dying declaration survived, it will not alter the
probative force of the dying declaration
- Mere relationship to the victim does not impart the witness’ credibility
- Dying declaration must be made under consciousness of impending death.
- If it cannot be admissible as dying declaration, it may be considered as part of the
res gestae.
REQUISITES FOR RES GESTAE

1. Principal act is a starling occurrence
2. Statements were made before the declarant had time to contrive or devise
falsehood.
3. Statements must concern the occurrence in question and its immediately attending
circumstances
- Statements made to private persons not agents of the state or law enforcers are not
covered by constitutional safeguards on custodial investigation

REMEDIAL LAW
- Hysterical outburst at the emergency room is admissible as part of res gestae
DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS - The hearsay rule does not apply
where only the fact that such statements were made is relevant and the truth or falsity
thereof is immaterial.
- When extrajudicial statements or admission of co conspirator were confirmed at the

trial, it ceases to be hearsay. It becomes a judicial admission.
- Medical certificate issued by a doctor who is not presented as witness is inadmissible
in evidence being hearsay. It cannot be considered as entries in official records.
- If there is inconsistency between affidavit and testimony, Testimony shall prevail.
OPINION RULE
- GR: Not admissible.
EXCEPTIONS:
1. Opinion of witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess
2. Opinion regarding the identity of a person about whom he has adequate
knowledge
3. Handwriting with which he has sufficient familiarity
4. Mental sanity of a person with who he is sufficiently acquainted.
- Witness may also testify on his impressions of the emotion, Behavior, condition or
appearance of the person
HOT TUBBING - Method used for giving evidence in civil cases in Australia. The judge
can hear all the experts discussing the same issue at the same time to explain each of
their points.
CHARACTER EVIDENCE
- Not admissible
EXCEPTIONS IN CRIMINAL CASE
1. Accused may prove his good moral character which is pertinent to the moral trait
involved in the offense charged
2. Unless in rebuttal, The prosecution may not prove his bad moral character which is
pertinent to the moral trait involved in the offense charged.
3. Good or bad moral character of the offended party may be proved if it tends to
establish in any reasonable degree the probability of improbability of the offense
charged.
EXCEPTIONS IN CIVIL CASE:

- Admissible only when pertinent to the issue of character involved in the case.

REMEDIAL LAW
- Proof of good or bad moral character may be allowed in homicide cases to show
that it has produced a reasonable belief of imminent danger in the mind of the
accused and a justifiable conviction that a prompt defensive action was necessary.
- This shall not be applied where it is committed through TREACHERY
- The character or reputation of a party is regarded as irrelevant in determining a

controversy.
- When the accused presents proof of his good moral character, this strengthens the
presumption of innocence and where the good character and reputation are
established, an inference arises that the accused did not commit the crime charged.
- Character evidence is generally not admissible except on rebuttal
- Moral character is immaterial in prosecution and conviction of persons accused of
rape as even prostitutes can be victim of rape
- In homicide cases, the character trait of the accused is admissible as evidence of the
deceased’s aggression and as evidence of state of mind of the accused.
- Character evidence is not generally admissible except:

1. Pertinent to the moral trait involved in the offense charged
2. In rebuttal
3. If it tends to establish in any reasonable degree the probability or improbability of
the offense charged.
- Prior conviction is always a proper subject of inquiry on cross examination and this is
for impeachment purposes.
- Evidence of other crimes or misconduct is inadmissible to show that the accused had
a propensity to commit the crime charged.
- Evidence of prior similar crime is admissible to prove that the crime charged is part of
a common scheme or plan
- Evidence of an accused’s prior crime is relevant to show that the later killing was
probably not an accident.
RULE 131: BURDEN OF PROOF AND PRESUMPTIONS

- Duty of a party to present evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required by law.
CONCLUSIVE PRESUMPTIONS:
1. Whenever a party has, by his own declaration, act or omission, intentionally and
deliberately led another to believe a particular thing true and to act upon such
belief, he cannot, in any litigation arising out of such declaration, act or omission, be
permitted to falsify it.
2. Tenant is not permitted to deny the title of his landlord at the time of the
commencement of the relation of landlord and tenant between them.

REMEDIAL LAW
DISPUTABLE PRESUMPTION ( Please check codal)
- If the original PN is in the possession of the creditor, there is disputable presumption

that the obligation has not yet been paid.
- In multiple rape, not one may be required to recognize the offspring of the offended
woman.
- The general rule is that if a criminal charge is predicated on a negative allegation or
a negative averment is an essential element, the prosecution has the burden to
prove the charge.
- EXCEPTION: Where the negative of an issue does not permit of direct proof, or
where the facts are more immediately within the knowledge of accused, the
onus probandi rests on him.
REQUISITES OF MATTERS OF JUDICIAL NOTICE:

1. One of common and general knowledge
2. Well and authoritatively settled
3. Known to be within the limits of the jurisdiction
- Motive is not an element of murder

- Conspiracy is proven also by proof beyond reasonable doubt
- Presentation of the instrument is not indispensable in the prosecution of the accused.
RULE 132: PRESENTATION OF EVIDENCE
EXAMINATION OF WITNESSES
- It shall be done in open court and under oath or affirmation.
- It was allowed in a rape case that the judge actively participated in direct and cross
examination
- A witness must answer questions although his answer may tend to establish a claim
against him
RIGHTS OF WITNESSES:
1. Protected from irrelevant, improper, insulting questions and from harsh or insulting
demeanor
2. Not to be detained longer than the interest of justice require
3. Not to be examined except as to matters pertinent to issue
4. Not to give an answer which will tend to subject him to a penalty for an offense
unless otherwise provided.
5. Not to give an answer that will tend to degrade his reputation.

REMEDIAL LAW
ORDER OF EXAMINATION
1. Direct
2. Cross
3. Re-direct
4. Re-cross
DIRECT EXAMINATION - examination in chief of a witness by a party presenting him on

the facts relevant on the issue.
CROSS EXAMINATION - Upon termination of the direct, the witness may be cross
examined by the adverse party as to any matters stated n the direct examination or
connected therewith with sufficient fullness and freedom to test his accuracy and
truthfulness.
RE-DIRECT - To explain or supplement his answers given during the cross examination.
Matters not dealt during the cross may be allowed in the discretion of the court.
- After the examination of a witness by both sides, witness cannot be recalled without
leave of court.
LEADING QUESTION - Question which suggests to the witness the answer which the
examining party desires.
- Leading questions are not allowed

- EXCEPTIONS:
- 1. Cross examination
- 2. Preliminary matters
- 3. If ignorant, tender age, feeble mind or deaf mute
- 4. Hostile witness
MISLEADING QUESTION - One which assumes as true a fact not yet testified to by witness
or contrary to that which he has previously stated. Not allowed.
- A witness may be impeached by a party against whom he was called by

contradictory evidence, by evidence that his general reputation for truth, honesty or
integrity is bad
- There is no prohibition for a party to call his adversary as his witness.
- A party cannot impeach his own witness unless unwilling or hostile.
- If a witness is not impeached during cross examination, his testimony must be taken
as any other testimony with the presumption of truthfulness

REMEDIAL LAW
SUPPRESSION OF EVIDENCE
- There is a presumption that if presented, it would be adverse to the one who
suppressed it.
EXCEPTIONS:
1. No willful suppression
2. Merely corroborative
3. Disposal of both parties.
- Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be related to
him, with the circumstances of the times and places and the persons present, and he
must be asked whether he made such statements, and if so, be allowed to explain
them. If the statements be in writing, they must be shown to the witness before any
question is put to him concerning them.
- Evidence of good moral character of witness is not admissible until such character
has been impeached.
- A witness may be allowed to refresh his memory respecting a fact by anything written
or recorded but it may be inspected by the adverse party who may be subject to
inquiry
TOTALITY OF CIRCUMSTANCES TEST -Test to resolve the admissibility and reliability of out
of court identification of suspects considering the following factors:
1. Opportunity to view the criminal at the time of the crime
2. Degree of attention
3. Accuracy of any prior description
4. Level of certainty demonstrated
5. Length of time
6. Suggestiveness of identification
ENGLISH EXCHEQUER RULE - A trial court’s error as to the admission of evidence was
presumed to have caused prejudice and therefore, almost automatically require a new
trial. It is not applied now.
HARMLESS ERROR RULE - To give judgment after an examination of the entire record
before the court, without regard to technical errors, defects or exceptions which do not
affect the substantial rights.
- If the impact is slight and insignificant, we disregard the error as it will not
overcome the weight of the properly admitted evidence.
- Ordinary witness can testify on the value of the household effects.
B. AUTHENTICATION AND PROOF OF DOCUMENTS

REMEDIAL LAW
PUBLIC DOCUMENTS:
1. Written official acts or records of the official acts of the sovereign authority, official
bodies and tribunals and public officers whether of the PH or of a foreign country
2. Documents acknowledged before a notary public except last wills and testament
3. Public records kept in the PH of private documents required by law to be entered
therein.
- ALL OTHER WRITINGS ARE PRIVATE.
HOW MAY PRIVATE DOCUMENT BE PROVEN:

- Its due execution and authenticity must be proved either:
1. By anyone who saw the document executed or written
2. Evidence of genuineness of signature or handwriting
- ANCIENT DOCUMENT RULE - When the private document is more than 30 years old is
produced from a custody in which it would naturally be found if genuine and is
unblemished by any alterations or circumstances of suspicion, no other evidence of
authenticity need be given.
- Handwriting of person may be proved by any witness who believes it to be the

handwriting of such person.
- Evidence may also be given by a comparison made by the witness or the court with
writings admitted or treated as genuine by the party against whim the evidence is
offered.
- Official records may be evidenced by official publication or certified true copy
- If kept in foreign country, the certificate may be made by a secretary of the embassy
- An authorized public record of public document may be proved by the original
record or copy thereof.
- A written statement signed by the officer having the custody is admissible as
evidence that the records of his officer contain no such records.
HOW MAY JUDICIAL RECORD BE IMPEACHED:

1. Want of jurisdiction
2. Collusion between the parties
3. Fraud in the party offering the record
- If there is alteration, he may show that the alteration was made by another, without
his concurrence, or made with the consent by the party affected by it. If he fails to
do it, it is inadmissible as evidence
- Documents written in unofficial language shall not be admitted unless accompanied
with translation into english or Filipino.

REMEDIAL LAW
C. OFFER AND EVIDENCE

- The court shall not consider evidence not formally offered.
- A Formal offer is necessary
EXCEPTION: In Summary procedure.
- Objections must be made immediately after the offer is made.

- Objection is unnecessary if it becomes reasonably unnecessary
- The court may strike out an answer when a witness answered the question before the
adverse party has opportunity to voice fully its objection.
RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

- Civil case: Preponderance of evidence
- Criminal Case: Proof beyond reasonable doubt
- Administrative case: Substantial evidence
- Moral certainty is only required in Proof beyond reasonable doubt.

- An extrajudicial confession made by an accused shall not be sufficient ground for
conviction unless corroborated by evidence of corpus delicti.
CIRCUMSTANTIAL EVIDENCE IS SUFFICIENT TO CONVICT:

1. More than once circumstance
2. Inferences derived are proven
3. Combination of all circumstances
SUBSTANTIAL EVIDENCE - Relevant evidence as a reasonable mind might accept as

adequate to support a conclusion
- Court may stop the introduction of evidence upon any particular point when the
evidence is already so full.
PREPONDERANCE OF EVIDENCE - Evidence which is of greater weight or more

convincing than that which is offered in opposition thereto
MOTIVE MAY BE MATERIAL IF:

1. There is no eyewitness and suspicion is likely to fall on a considerable number of
persons
2. Doubt as to whether the accused is or is not the person who committed the offense.
3. Necessary to determine the sanity of the accused.
4. Interposes self defense.
- Recantations of witness are frowned upon by the courts.

REMEDIAL LAW
- If accused did not object to the presentation of witness, he cannot object their
admissibility for the first time on appeal
- Even if witness has been found to have deliberately falsified the truth in some
particular facts, It is not required that the whole testimony be rejected.
- Accused cannot be made a hostile witness or else it would compel him to be a
witness against himself.

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ALBANO REVIEWER SUMMARY

RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES

VARIOUS SPECIAL PROCEEDINGS

- Rules on ordinary actions apply to special proceedings if practicable

MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON:

2. Summary settlement of estates of small value

3. Judicial settlement through letters of administration or letters testamentary

4. Self adjudication of the estate by the sole heir

© Edward Vange Arriba Page 1 of 89

SETTLEMENT OF ESTATE OF DECEASED PERSONS

- PROBATE PROCEEDINGS: It shall be filed with:

- Gross value should always be alleged

- GR: The declaration of heirship shall be made in special proceedings not in

© Edward Vange Arriba Page 2 of 89

- The determination of whether a property is conjugal or paraphernal for purposes of

RULE 74: SUMMARY SETTLEMENT OF ESTATES

© Edward Vange Arriba Page 3 of 89

- If the disagree, they may do so in ordinary action of partition

Summary Settlement - a judicial proceeding wherein without the appointment of

REMEDIES OF CREDITOR IF DEBTOR DIES:

© Edward Vange Arriba Page 4 of 89

RULE 75: PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY

- A will shall pass properties only when probated

RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL

GROUNDS FOR DISALLOWANCE OF WILL

- People may contest the allowance of the will in writing

© Edward Vange Arriba Page 5 of 89

- How to prove holographic will

RULE 77: ALLOWANCE OF WILL OUTSIDE THE PH AND ADMINISTRATION OF ESTATE

- Reprobate of will shall be filed in the RTC

ADMINISTRATOR - Appointed by the court as no competent executor was designated

© Edward Vange Arriba Page 6 of 89

- Surviving spouse is preferred over the next of kin of the decedent

LETTERS OF ADMINISTRATION -Appointment issued by the probate court to a person

RULE 80: SPECIAL ADMINISTRATOR

© Edward Vange Arriba Page 7 of 89

- Appointment of specAd implied denial of the power to appoint a regular

POWERS OF SPECIAL ADMINISTRATOR

- A SpecAd may be made a defendant in a foreclosure suit or suits for payment of

RULE 81: BONDS OF EXECUTORS AND ADMINISTRATORS

CONDITIONS OF AD/EXEC’S BOND

© Edward Vange Arriba Page 8 of 89

RULE 82: REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION AND REMOVAL OF

GROUNDS FOR REMOVAL OF AN EXECUTOR OR ADMINISTRATOR (NOT EXCLUSIVE)

RULE 83: INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY

RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

POWERS AND DUTIES:

RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

© Edward Vange Arriba Page 9 of 89

EXPENSES AND FEES ALLOWED:

Attorney of an executor or administrator is personal liability. But if it is beneficial to the

WHEN TO RENDER ACCOUNTING:

RULE 86: CLAIMS AGAINST THE ESTATE

STATUTE OF NON CLAIMS

© Edward Vange Arriba Page 10 of 89

CLAIMS THAT MAY BE FILED AGAINST THE ESTATE OF THE DECEDENT:

REMEDIES OF THE MORTGAGEE IN CASE OF DEATH OF MORTGAGOR

RULE 87: ACTIONS BY AND AGAINST THE EXECUTORS AND ADMINISTRATORS

© Edward Vange Arriba Page 11 of 89

RULE 88: PAYMENT OF DEBTS OF THE ESTATE

IF THERE IS SUFFICIENT PROPERTIES:

© Edward Vange Arriba Page 12 of 89

REGLEMENTARY PERIOD TO SETTLE THE ESTATE

- How to prove holographic will 

POWERS OF SPECIAL ADMINISTRATOR 