CrimProc San Beda

7/30/2019 CrimProc San Beda

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San Beda College of Law135

MEMORYAIDIN REMEDIAL LAW

CRIMINAL PROCEDURE

Criminal Jurisdiction power of theState to try and punish a person for aviolation of its penal laws.

REQUISITES FOR A VALID EXERCISE OFCRIMINAL JURISDICTION:

1. The offense, by virtue of theimposable penalty OR its nature,is one which the court is by lawauthorized to take cognizanceof, (jurisdiction over theSUBJECT MATTER).

2. The offense must have beencommitted within its territorialjurisdiction, (jurisdiction overthe TERRITORY).

3. The person charged with theoffense must have been broughtto its presence for trial, forciblyby warrant of arrest or upon hisvoluntary submission to thecourt, (jurisdiction over thePERSON OF THE ACCUSED).

JURISDICTIONOVER THESUBJECT MATTER

JURISDICTIONOVER THE PERSONOF THE ACCUSED

Derived from the

law. It can never be

acquired solely by

consent of the

accused.

May be acquired by

consent of the

accused or by waiver

of objections.

Objection that the

court has no

jurisdiction of the

subject matter may

be made at any stage

of the proceeding,

and the right to

make such objection

is never waived.

If he fails to make his

objection in time, he

will be deemed to

have waived it.

DETERMINATION OF CRIMINALJURISDICTION:

1. Determined by the allegations inthe complaint or information notby the results of proof or by thetrial courts appreciation of theevidence presented.

2. Determined by the law in forceat the time of the institution ofthe criminal action. ONCEVESTED, IT CANNOT BEWITHDRAWN BY:a) subsequent valid amendment

of the information; orb) a subsequent statutory

amendment of the rules ofjurisdiction, UNLESS theamendatory law providesotherwise.

RULE 110PROSECUTION OF OFFENSES

Section 1. Institution of criminalactions.

For offenses where a preliminaryinvestigation is required - by filing thecomplaint with the proper officer for thepurpose of conducting the requisite

preliminary investigation.

Preliminary investigation is REQUIRED foroffenses where the penalty prescribedby law is at least 4 years, 2 months and1day without regard to fine (Rule 112,Sec. 1 Par.2).

For all other offenses - by filing thecomplaint or information directly withthe Municipal Trial Courts and MunicipalCircuit Trial Courts, or the complaintwith the office of the prosecutor.

DOES NOT APPLY to offenses which aresubject to summary procedure.

Effect of institution of the criminalaction:It interrupts the running of the period ofprescription of the offense chargedunless otherwise provided by speciallaws.

REMEDIAL LAW COMMITTEECHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, CharissimaeVentura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions andSpecialProceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)


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Remedies of the offended party if theprosecutor refuses to file aninformation:

1. file an action for mandamus, in

case of grave abuse of discretion;

2. lodge a new complaint beforethe court having jurisdictionover the offense;

3. take up the matter with theSecretary of Justice inaccordance with the Rev.Administrative Code;

4. institute an administrativecharges against the erringprosecutor; and

5. file criminal action against theprosecutor with thecorresponding civil action fordamages.

May Injunction Issue to RestrainCriminal Prosecution?GENERAL RULE: Criminal prosecutionsmay NOT be restrained or stayed byinjunction, preliminary or final. Thereason being, public interest requiresthat criminal acts be immediatelyinvestigated and prosecuted for the

protection of the society (Domingo vs.Sandiganbayan, 322 SCRA 655).EXCEPTIONS:1. To afford adequate protection to the

constitutional rights of the accused;2. When necessary for the orderly

administration of justice or to avoidoppression or multiplicity of actions;

3. When there is a prejudicial questionwhich is subjudice;

4. When the acts of the officer arewithout or in excess of authority;

5. When the prosecution is under aninvalid law, ordinance or regulation;

6. When double jeopardy is clearlyapparent;

7. When the court had no jurisdictionover the offense;

8. When it is a case of persecutionrather than prosecution;

9. When the charges are manifestlyfalse and motivated by lust forvengeance; and

10. When there is clearly no prima faciecase against the accused and a

motion to quash on that ground hasbeen denied.

Section 2. Form of the complaint or

information.

FORM1. In writing;2. In the name of the People of the

Philippines; and3. Against all persons who appear

to be responsible for the offenseinvolved.

Section 3. Complaint defined.

A Complaint is:

1. a sworn written statement;2. charging a person with anoffense;

3. subscribed by the offendedparty, any peace officer or otherpublic officer charged with theenforcement of the law violated.

The complaint mentioned in this sectionrefers to one filed in court for thecommencement of a criminalprosecution for violation of a crime,usually cognizable by municipal trial

courts as well as to a complaint filed byan offended party in private crimes orthose which cannot be prosecuted deofficio.

REQUISITES OF A COMPLAINT:1. it must be in writing and under

oath;2. it must be in the name of the

People of the Philippines;3. it must charge a person with an

offense; and

4. it must be subscribed by theoffended party, by any peaceofficer or public officer chargedwith the enforcement of the lawviolated.

PERSONS WHO CAN FILE A COMPLAINT1. Offended party2. Any peace officer3. Other public officer charged

with the enforcement of the lawviolated



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ex. Internal Revenue Officer forviolation of the NIRC, customagents with respect to violationsof the Tariff and Customs Code

Section 4. Information defined.

An Information is:1. an accusation in writing;2. charging a person with an

offense;3. subscribed by the prosecutor and

filed with the court.

REQUISITES OF AN INFORMATION1. it must be in writing;

2. it must charge a person with anoffense;3. it must be subscribed by the

fiscal; and4. it must be filed in court.

COMPLAINT INFORMATION

Subscribed by the

offended party, any

peace officer or other

officer charged with

the enforcement of

the law violated

Subscribed by the

fiscal

(indispensable

requirement)

it may be filed either

in court or in the

prosecutors office

it is filed with the

court

must be made under

oath

need not be under

oath

Prosecution in the RTC are alwayscommenced by information, EXCEPT:

1. in certain crimes against chastity(concubinage, adultery,seduction, abduction, acts oflasciviousness); and

2. defamations imputing any of theaforesaid offenses wherein asworn written complaint isrequired in accordance withsection 5 of this Rule.

Section 5. Who must prosecutecriminal actions.FULL DISCRETION AND CONTROL OFTHE PROSECUTORAll criminal actions commenced by acomplaint or information shall be

prosecuted under the direction andcontrol of the prosecutor.

A PRIVATE PROSECUTOR may be

authorized to prosecute a criminalaction subject to the followingconditions:

1. the public prosecutor has aheavy work schedule, or there isno public prosecutor assigned inthe province or city;

2. the private prosecutor isauthorized IN WRITING by theRegional State Prosecutor (RSP),Provincial or City Prosecutor;

3. the authority of the private

prosecutor must be approved bythe court;4. the private prosecutor shall

continue to prosecute the caseuntil the end of the trial unlessthe authority is withdrawn orotherwise revoked by the RSP,Provincial or City Prosecutor;and

5. In case of the withdrawal orrevocation of the authority ofthe private prosecutor, the samemust be approved by court.

(Memo Circ. No. 25, April 26,2002, Regarding Amendment toSec. 5, Rule 110)

In appeals before the CA and the SC, it isonly the Solicitor General that isauthorized to bring and defend actions inbehalf of the People of the Philippines(People vs. Nano, 205 SCRA 155).

In all cases elevated to theSandiganbayan and from the

Sandiganbayan to the SC, the Office ofthe Ombudsman, through its SpecialProsecutor shall represent the People ofthe Philippines, EXCEPT in cases filedpursuant to E.O. Nos. 1, 2, 14 and 14-A,issued in 1986 (Sec. 4, RA 8249).

PROSECUTION OF CRIMES AGAINSTCHASTITY

WHO MAY PROSECUTE1. Concubinage and adultery only by

the offended spouse who should



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have the status, capacity, and legalrepresentation at the time of filingof the complaint, regardless of age;

2. Seduction, Abduction and Acts of

Lasciviousness prosecutedexclusively and successively by thefollowing persons in this order:a) by the offended womanb) by the parents, grandparents or

legal/judicial guardians in thatsuccessive order

c) by the State in the exercise ofthe right of parens patriae,when the offended party dies orbecomes incapacitated beforeshe could file the complaint and

she has no known parents,grandparents or guardian.3. A defamation imputing to a person

any of the foregoing crimes ofconcubinage, adultery, seduction,abduction, rape or acts of lasciviousness can be prosecutedonly by the party or parties defamed(Article 360, last par., Revised PenalCode).

If the offended party is of legal age ANDdoes not suffer from physical or mental

disability, she alone can file thecomplaint to the exclusion of all others.

WHO CAN GIVE PARDON1. Concubinage and adultery - only

the offended spouse, not otherwiseincapacitated, can validly extend thepardon or consent contemplatedtherein.

2. Seduction, abduction, and acts oflasciviousness a) the offended minor, if with

sufficient discretion, can validlypardon the accused by herself ifshe has no parents or where theaccused is her own father andher mother is dead;

b) the parents, grandparents orguardian of the offended minor,in that order, CANNOT extend avalid pardon in said crimesWITHOUT the conformity of theoffended party, even if thelatter is a minor;

c) if the offended woman is of ageand not otherwise incapacitated,only she can extend a validpardon.

The pardon refers to pardon BEFOREfiling of the criminal complaint in court.Pardon effected after the filing of thecomplaint in court does NOT prohibit thecontinuance of the prosecution of theoffense EXCEPT in case of marriagebetween the offender and the offendedparty.

PARDON vs. CONSENTConsent refers to future acts, while

pardon refers to past acts of adultery.The importance of this distinction is thatconsent, in order to absolve the accusedfrom liability, is sufficient even ifgranted only to the offending spouse,whereas pardon must be extended toboth offenders

The SUBSEQUENT MARRIAGE between theoffended party and the accusedextinguishes the criminal liability of thelatter, together with that of the co-principals, accomplices and accessories.

EXCEPT:1. where the marriage was invalid

or contracted in bad faith inorder to escape criminalliability,

2. in private libel3. in multiple rape, insofar as the

other accused in the other actsof rape respectively committedby them are concerned.

The ACQUITTAL OR DEATH of one of

the accused in the crime of adulterydoes not bar the prosecution of theother accused (People vs. Topio, et al.,35 Phil. 901). HOWEVER, the death ofthe offended spouse before the filing ofthe complaint for adultery bars furtherprosecution, BUT if the offended spousedied after the filing of the correspondingcomplaint, his death will NOT preventthe proceeding from continuing to itsultimate conclusion.



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DESISTANCE of complainant does notbar criminal prosecution but it operatesas waiver of the right to pursue civilindemnity.

Section 6. Sufficiency of complaint orinformation.

CONTENTS OF A VALID COMPLAINT ORINFORMATION

1. Name of the accused, includingany appellation or nicknameAn error in the name of theaccused is not reversible as longas his identity is sufficientlyestablished and this defect is

curable at any stage of theproceedings as the insertion ofthe real name of the accused ismerely a matter of form.

2. The designation of the offense3. The acts or omissions

complained of as constitutingthe offense

4. The name of the offended party5. The approximate time of the

commission of the offense6. The place wherein the offense

was committed

PURPOSE OF THE RULE1. To inform the accused of the

nature and cause of accusationagainst him.

2. To notify the defendant of thecriminal acts imputed to him sothat he can duly prepare hisdefense.

Substantial defect in the informationcannot be cured by evidence that would

jeopardize the accuseds right to beinformed of the true nature of theoffense he is being charged with

Section 7. Name of the accused.

PURPOSEThe manifest intent of the provision is tomake a specific identification of theperson to whom the commission of anoffense is being imputed.

Section 8. Designation of the offense.

The information or complaint must stateor designate the following whenever

possible:1. The designation of the offense

given by the statute.2. The statement of the acts or

omissions constituting theoffense, in ordinary, concise andparticular words.

3. The specific qualifying andaggravating circumstances mustbe stated in ordinary and conciselanguage.

The qualifying and aggravatingcircumstances cannot be appreciatedeven if proved UNLESS alleged in theinformation.

In case of allegation of aggravatingcircumstance of HABITUALDELINQUENCY, it should not be generallyaverred. The information must specifythe requisite data regarding:

1. the commission of the crimes;2. the last conviction or release;3. the other previous conviction or

release of the accused.

ALLEGATIONS PREVAIL OVERDESIGNATION OF THE OFFENSE IN THEINFORMATION

It is not the designation of the offense inthe complaint or information that iscontrolling (People vs. Samillano, 56SCRA 573); the facts alleged therein andnot its title determine the nature of thecrime (People vs. Magdowa, 73 Phil.

512).

The accused may be convicted of acrime more serious than that named inthe title or preliminary part if suchcrime is covered by the facts alleged inthe body of the information and itscommission is established by evidence(Buhat vs. Court of Appeals, 265 SCRA701).



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Limitation on the rule that an accusedmay be convicted of a crime which ismore serious than that named in thetitle so long as the facts alleged the

more serious offense:

An accused could not be convicted underone act when he is charged with aviolation of another if the change fromone statute to the other involves:

a) a change in the theory of thetrial;

b) requires of the defendant adifferent defense; or

c) surprises the accused in any way(U.S. vs. Panlilio, 28 Phil. 603)

.Section 9. Cause of the accusation.

PURPOSE1. to enable the court to pronounce

proper judgment;2. to furnish the accused with such

a description of the charge as toenable him to make a defense;

3. as a protection against furtherprosecution for the same cause.

RULE ON NEGATIVE AVERMENTS

GENERAL RULE: Where the statutepenalizes generally the acts thereindefined and is intended to apply to allpersons indiscriminately, the informationis sufficient even if does not allege thatthe accused falls within the exceptedsituation, for then the completedefinition of the offense is entirelyseparable from the exceptions and canbe made without reference to the latter.In this case, the exception is a matter ofdefense which the accused has to prove.

EXCEPTION: Where the statute allegedto have been violated applies only to aspecific class of persons and to specialconditions, the information must allegefacts establishing that the accused fallswithin the specific class affected and notthose affected from the coverage of law.Where negative averment is an essentialelement of the crime, it must be proved.

Section 10. Place of commission of theoffense

PURPOSE

To show territorial jurisdiction.

Section 11. Date of commission of theoffense

GENERAL RULE:It is NOT required that the complaint orinformation state with particularity thePLACE where the crime was committedand the DATE of the commission of thecrime.EXCEPTION:

If the PLACE/DATE of the commission ofthe offense constitutes an essentialelement of the offense.

Section 12. Name of the offendedparty

GENERAL RULE: The offended partymust be designated by name, nickname,any other appellation or by fictitiousname.EXCEPTION: In crimes against property,the description of the property must

supplement the allegation that theowner is unknown.

Section 13. Duplicity of offense.

There is duplicity when the complaint orinformation charges 2 or more DISTINCTor DIFFERENT offenses.

GENERAL RULE:A complaint or information must chargeonly one offense.

EXCEPTIONS:1. Complex crimes2. Special Complex crimes3. Continuous crimes or delicto

continuado4. Crimes of which another offense

is an ingredient

Should there be duplicity of offense inthe information, the accused must movefor the quashal of the same BEFOREarraignment



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arraignment, otherwise, he is deemed tohave waived the objection and maybefound guilty of as many offenses as those

charged and proved during the trial.

Section. 14. Amendment orsubstitution.

KINDS OF AMENDMENT1. BEFORE THE PLEA covers both

substantial and formalamendment, WITHOUT leave ofcourt.

2. AFTER THE PLEA covers onlyformal amendment provided:

a) leave of court is obtainedb) such amendment is notprejudicial to the rights ofthe accused.

EXCEPT when a fact superveneswhich changes the nature of thecrime charged in the informationor upgrades it to a higher crime,in which case, there is a needfor another arraignment of theaccused under the amendedinformation.

An amendment is only in form where itneither affects nor alters the nature ofthe offense charged OR where thecharge does not deprive the accused of afair opportunity to present his defenseOR where it does not involve a change inthe basic theory of the prosecution.

Substitution If it appears at anytimebefore judgment that a mistake has beenmade in charging the proper offense, thecourt shall dismiss the original complaint

or information upon the filing of a newone charging the proper offense,provided the accused shall not be placedin double jeopardy.

Limitation to the rule on substitution:1. No judgment has yet been

rendered.2. The accused cannot be convicted

of the offense charged or of anyother offense necessarilyincluded therein.

3. The accused would not be placedin double jeopardy.

AMENDMENT SUBSTITUTION OFINFORMATION OR

COMPLAINTMay involve either

formal or substantial

changes

Involves substantial

change from the

original charge

Amendment before

the plea has been

entered can be

effected without

leave of court.

Substitution of

information must be

with leave of court as

the original

information has to be

dismissed.

Amendment is only

as to form, there is

no need for anotherpreliminary

investigation and the

retaking of the plea

of the accused.

Another preliminary

investigation is

entailed and theaccused has to plead

anew to the new

information

An amended

information refers to

the same offense

charged in the

original information

or to an offense

which necessarily

includes or is

necessarily included

in the original

charge, hence

substantial

amendments to the

information after the

plea has been taken

cannot be made over

the objection of the

accused, for if the

original information

would be withdrawn,the accused could

invoke double

jeopardy.

Requires or

presupposes that the

new information

involves a different

offense which does

not include or is not

necessarily included

in the original

charge, hence the

accused cannot claim

double jeopardy.

VARIANCE BETWEEN INDICTMENT ANDPROOF (Situations Contemplated)

1. When the offense proved is lessserious than, and is necessarilyincluded in, the offense charged,in which case the defendantshall be convicted of the offense

proved.



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2. When the offense proved is moreserious than and includes theoffense charged, in which casethe defendant shall be convicted

of the offense charged.3. When the offense proved is

neither included in, nor does itinclude, the offense charged andis different therefrom, in whichcase the court should dismiss theaction and order the filing of anew information charging theproper offense.

The third situation set forth above issubstitution of information under Section

14, Rule 110.

Section 15. Place where action is to beinstituted.

PURPOSEThe purpose being not to compel thedefendant to move to, and appear in adifferent court from that of the territorywhere the crime was committed, as itwould cause him great inconvenience inlooking for his witnesses and otherevidence in another place (Beltran vs.

Ramos, 96 Phil. 149).VENUE IS JURISDICTIONALVenue is jurisdictional as the court hasno jurisdiction to try an offensecommitted outside its territorialjurisdiction. It cannot be waived, orchanged by agreement of the parties, orby the consent of the defendant.

GENERAL RULE: Subject to existinglaws, in all criminal prosecutions, the

action must be instituted and tried inthe courts of the municipality orterritory where the offense wascommitted or any of its essentialingredients occurred.

EXCEPTIONS TO THE RULE OF VENUE:1. Felonies under Art. 2 of the

Revised Penal Code

Shall be cognizable by theproper court where thecriminal action was firstfiled.

2. Complex Crimes

Where the crime charged is a

complex crime, the RTC ofany province in which anyone of the essentialelements of such complexcrime had been committedhas jurisdiction to takecognizance of the offense.

3. Continuing Offense - is onewhere the elements of whichoccur in several places, (unlike aLOCAL OFFENSE - one which isfully consummated in one place)

The venue is in the placewhere one of its essentialelements was consummated.

4. Piracy The venue of piracy,unlike all other crimes, has noterritorial limits.

5. Libel The action may beinstituted at the election of theoffended or suing party in theprovince or city:a) where the libelous article is

printed and first published;b) if one of the offended

parties is a privateindividual, where saidprivate individual actuallyresides at the time of thecommission of the offense;

c) if the offended party is apublic official, where thelatter holds office at thetime of the commission ofthe offense.

6. In exceptional circumstances toensure a fair trial and impartial

inquiry. The SC shall have thepower to order a change ofvenue or place of trial to avoidmiscarriage of justice (Section5[4], Article VIII, 1987Constitution).

Section 16. Intervention of theoffended party in criminal action.

GENERAL RULE: Offended party has theright to intervene by counsel in theprosecution of the criminal action,



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where the civil action for recovery ofcivil liability is instituted in the criminalaction pursuant to Rule 111.

EXCEPTIONS:1. Where from the nature of the

crime and the law defining andpunishing it, NO civil liabilityarises in favor of the offendedparty; and

2. Where the offended party haswaived his right to civilindemnity OR has expresslyreserved his right to institute acivil action OR has alreadyinstituted said action.

RULE 111PROSECUTION OF CIVIL ACTIONS

Section 1. Institution of criminal andcivil actions.

GENERAL RULE:When a criminal action is instituted, thecivil action for the recovery of civilliability arising from the offense shall bedeemed instituted with the criminal

action.EXCEPTIONS:

1. when the offended party WAIVESthe civil action

2. when the offended partyRESERVES his right to institute aseparate civil action

3. when offended party INSTITUTESA CIVIL ACTION PRIOR to thecriminal action.

WHEN RESERVATION SHALL BE MADE

1. before the prosecution starts topresent its evidence and

2. under circumstances affordingthe offended party to areasonable opportunity to makesuch reservation.

ONLY the civil liability arising from thecrime charged as a felony is now deemedinstituted. Civil liability arising fromother sources of obligations are nolonger deemed instituted like thoseunder Article 32, 33, 34 and 2176 of the

Civil Code which can be prosecuted evenwithout reservation.

In BP 22 cases, no reservation to filethe civil action separately shall be

allowed.

RULES ON FILING FEES OF CIVIL ACTIONDEEMED INSTITUTED WITH THECRIMINAL ACTION

1. NO filing fees are required foramounts of ACTUAL DAMAGES,EXCEPT with respect to criminalactions for violation of BP 22, inwhich case, the offended partyshall pay in full the filing feesbased on the face value of the

check as the actual damages;2. Damages other than actual(moral, exemplary and otherdamages) if specified in thecomplaint or information, thecorresponding filing fees shall bepaid, otherwise the court willnot acquire jurisdiction oversuch damages;

3. Where moral, exemplary andother damages are NOT specifiedin the complaint or information,the grant and amount thereof

are left to the sound discretionof the trial court, thecorresponding filing fees neednot be paid and shall simplyconstitute a first lien on thejudgment.

Counterclaims, cross-claims, thirdparty complaints are no longer allowedin a criminal proceeding. Any claimwhich could have been the subjectthereof may be litigated in a separate

civil action.

Section 2. When separate civil action issuspended.

PRIMACY OF CRIMINAL ACTION OVERCIVIL ACTION

1. After the filing of the criminalaction, the civil action which hasbeen reserved CANNOT beinstituted until final judgmenthas been rendered in thecriminal action.



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2. If the civil action is institutedBEFORE the filing of the criminalaction and the criminal action issubsequently commenced, the

pending civil action shall besuspended until final judgmentin the criminal action has beenrendered.

EXCEPTIONS:a) In cases of independent civil

actions based upon Arts. 32, 33,34 and 2176 of the Civil Code;

b) In cases where the civil actionpresents a prejudicial question;

c) In cases where the civil action isconsolidated with the criminal

action; andd) Where the civil action is not oneintended to enforce the civilliability arising from the offense.

ACQUITTAL IN A CRIMINAL CASE DOESNOT BAR THE FILING OF THE CIVILCASE WHERE:

1. the acquittal is based onreasonable doubt, if the civilcase has been reserved

2. the decision contains adeclaration that the liability of

the accused is not criminal butonly civil in nature and

3. the civil liability is not derivedfrom or based on the criminalact of which the accused isacquitted (Sapiera vs. Court of

Appeals, 314 SCRA 370).

Extinction of the penal action does notcarry with it the extinction of the civilaction, UNLESS the extinction proceedsfrom a declaration in a final judgment

that the fact from which the civilliability might arise did not exist.

The extinction of the civil liabilityrefers exclusively to civil liability arisingfrom crime; whereas, the civil liabilityfor the same act considered as a quasi-delict is not extinguished even by adeclaration in the criminal case that thecriminal act charged has not happenedor has not been committed by theaccused.

Where the criminal case was dismissedbefore trial because the offended partyexecuted an affidavit of desistance, thecivil action thereof is similarly

dismissed.

Section 3. When civil action mayproceed independently.

The institution of an independent civilaction against the offender underArticles 32, 33, 34 and 2176 of the CivilCode may proceed independently of thecriminal case and at the same timewithout suspension of either proceeding.

Recovery of civil liability under Articles32, 33, 34 and 2176 of the Civil Code

arising from the same act or omissionmay be prosecuted separately evenwithout a reservation. The reservationand waiver herein refers only to the civilaction for the recovery of civil liabilityarising from the offense charged (DMPIEmployees Credit Coop vs. Velez, G.R.

No. 129282, Nov. 29, 2001).

PURPOSETo prevent the offended party from

recovering damages twice for the sameact or omission.

Section 4. Effect of death on civilactions.

AFTER arraignment and during thependency of the criminal action -extinguishes the civil liability arisingfrom the delict.

BEFORE arraignment - the case shall be

DSMISSED without prejudice to any civilaction the offended party may fileagainst the estate of the deceased.

However, the independent civil actioninstituted under Section 3 of this Rule orwhich thereafter is instituted to enforceliability arising from other sources ofobligation may be continued against theestate or legal representative of theaccused after proper substitution oragainst said estate, as the case may be.



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Section 7. Elements of prejudicialquestion.

Prejudicial Question - that which arises

in a case, the resolution of which is thelogical antecedent of the issue involvedtherein, and the cognizance of whichpertains to another tribunal. It must bedeterminative of the case before thecourt but the jurisdiction to try andresolve the question must be lodged inanother court or tribunal.

Rationale: to avoid two conflictingdecisions.

ELEMENTS OF A PREJUDICIALQUESTION1. The civil action must be

instituted prior to the criminalaction.

2. The civil action involves an issuesimilar or intimately related tothe issue raised in the criminalaction.

3. The resolution of such issuedetermines whether or not thecriminal action may proceed.

WHERE TO FILE PETITION FORSUSPENSION BY REASON OFPREJUDICIAL QUESTION

1. Office of the prosecutor; or2. court conducting the preliminary

investigation; or3. court where the criminal action

has been filed for trial at anytime before the prosecutionrests.

RULE 112PRELIMINARY INVESTIGATION

Section 1. Preliminary Investigationdefined; when required.

Preliminary Investigation - is an inquiryor proceeding to determine whetherthere exists sufficient ground toengender a well-founded belief that acrime has been committed and that therespondent is probably guilty thereof,

and should be held for trial. (Sec. 1,Rule 112)

Preliminary Investigation is required to

be conducted BEFORE the filing of acomplaint or information for an offensewhere the penalty prescribed by law isat least 4 years, 2 months and 1 daywithout regard to the fine.

There is NO right of preliminaryinvestigation under Section 7, Rule 112when a person is LAWFULLY arrestedunless there is a waiver of the provisionsof Article 125 of the Revised Penal Code.HOWEVER, the accused can ask forPreliminary Investigation in the followingcases:

1. if a person is arrested, he canask for preliminary investigationBEFORE the filing of thecomplaint/information BUT hemust sign a waiver in accordancewith Article 125, RPC.

2. AFTER the filing of theinformation/complaint, theaccused may, within 5 days fromthe time he learns of its filing

ask for preliminary investigation.

PURPOSES1. to determine whether a crime

has been committed andwhether there is probable causeto believe that the accused isguilty thereof;

2. to preserve evidence and keepthe witnesses within the controlof the State;

3. to determine the amount of bail,

if the offense is bailable.

PRELIMINARY INVESTIGATION:PERSONAL STATUTORY RIGHTThe right to preliminary investigation isa personal right covered by statute andmay be waived expressly or byimplication.

Absence of preliminary investigationdoes not affect the jurisdiction of thecourt or invalidate the information if noobjection was raised by the accused.



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REMEDIES OF THE ACCUSED IF THEREWAS NO PRELIMINARY INVESTIGATION

1. Refuse to enter a plea upon

arraignment and object tofurther proceedings upon suchground

2. Insist on a preliminaryinvestigation

3. File a certiorari, if refused4. Raise lack of preliminary

investigation as error on appeal5. File for prohibition

As preliminary investigation is NOT apart of the trial, the dismissal of the

case by the investigator will notconstitute double jeopardy and will notbar the filing of another complaint forthe same offense, but if re-filed, theaccused is entitled to anotherpreliminary investigation (U.S. vs.Marfori, 35 Phil. 666).

Section 2. Officers authorized toconduct preliminary investigation.

PERSONS AUTHORIZED TO CONDUCT APRELIMINARY INVESTIGATION

1. Provincial or city fiscal and theirassistants

2. Judges of the MTC and MCTC3. National and regional state

prosecutors4. Such other officers as may be

authorized by law such as: theCOMELEC, Ombudsman andPCGG

Section 3. Procedure

If respondent cannot be subpoenaed, orif subpoenaed but does not submit his

counter-affidavit within 10 days,investigating officer shall resolve thecomplaint based on the evidencepresented by the complainant.

RIGHTS OF RESPONDENT IN APRELIMINARY INVESTIGATION

1. to submit counter-affidavits2. to examine evidence submitted

by the complainant3. to be present in the clarificatory

hearing.

The Rules do not require the presence ofthe respondent in the Preliminary


Hearing (optional). It shall be heldwithin 10 days from submission of

counter-affidavits or from theexpiration of the period of their

submission.

Resolution ofinvestigating prosecutor

(Sec. 4 & 5).

Filing of the complaintaccompanied by the affidavits

and supporting documents.

Within 10 days after the filing, theinvestigating officer shall either

dismiss or issue subpoena.

If subpoena is issued,respondent shall submit a

counter-affidavit and othersupporting documents within 10

days from receipt thereof.


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Investigation, what is required is that hebe given the opportunity to controvertthe evidence of the complainant bysubmitting counter-affidavits.

Section 6. When warrant of arrest mayissueProbable Cause - presupposes areasonable ground for belief in theexistence of facts warranting theproceedings complained of;

- an apparentstate of facts found to exist uponreasonable inquiry which would induce areasonably intelligent and prudent manto believe that the accused person had

committed the crime charged.

If the judge finds probable cause, heshall issue a warrant of arrest, or acommitment order if the accused hadalready been arrested and hold him fortrial. If the judge is satisfied that thereis no necessity for placing the accusedunder custody, he may issue summonsinstead of warrant of arrest.

The RTC judge need NOT personallyexamine the complaint and witnesses in

the determination of probable cause forthe issuance of the warrant of arrest. Heis only required to:

1. Personally evaluate the reportand the supporting documentssubmitted during the preliminaryinvestigation by the fiscal; and

2. On the basis thereof he may:a) Dismiss;b) Issue warrant; orc) Require further affidavits.

INSTANCES WHEN MTC MAY CONDUCTPRELIMINARY INVESTIGATION:

1. cases cognizable by the RTC maybe filed with the MTC forpreliminary investigation;

2. cases cognizable by the MTCbecause it is an offense wherethe penalty prescribed by law isat least four (4) years, two (2)months and one (1) day withoutregard to the fine.

In either situation, the MTC isauthorized to issue a warrant of arrest if

there is necessity of placing therespondent under immediate custody, inorder not to frustrate the ends ofjustice.

CONDITIONS BEFORE THEINVESTIGATING MUNICIPAL TRIALJUDGE CAN ISSUE A WARRANT OFARREST (Herrera, p. 282)

1. Have examined in writing andunder oath the complainant andhis witnesses by searchingquestions and answers; searchingquestions and answers suchquestions as may have thetendency to show the

commission of the crime and theperpetrator thereof;2. Be satisfied that a probable

cause exists; and3. That there is a need to place the

respondent under immediatecustody in order not to frustratethe ends of justice.

If the MTC judge found probable causebut did not believe that the aforesaidconditions were met, he cannot becompelled by mandamus to issue the

same.

REMEDY: The provincial fiscal, if hebelieves that the accused should beimmediately placed in custody, may filethe corresponding information so thatthe RTC may issue the necessary warrantof arrest (Samulde vs. Salvani, Jr., G.R.No. 78606, Sept. 26, 1988).

While the judge may rely on the fiscalscertification thereof, the same is NOT

conclusive on him as the issuance of saidwarrant calls for the exercise of judicialdiscretion and, for that purpose, thejudge may require the submission ofaffidavits of witnesses to aid him inarriving at the proper conclusion, OR hemay require the fiscal to conduct furtherpreliminary investigation orreinvestigation.

INSTANCES WHEN WARRANT OF ARRESTNOT NECESSARY



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1. if the accused is already underdetention;

2. if the complaint or informationwas filed after the accused was

lawfully arrested withoutwarrant;

3. if the offense is punishable byfine only.

Section 7. When accused lawfullyarrested without warrant.

TWO SITUATIONS CONTEMPLATEDUNDER THIS RULE:

1. When a person is lawfullyarrested without a warrant for

an offense requiring apreliminary investigation (sec. 1,Rule 112) and no complaint orinformation has yet been filed,he may ask for a preliminaryinvestigation by signing a waiverof the provisions of Art. 125 ofthe RPC in the presence of hiscounsel.

2. When the complaint orinformation was filed withoutpreliminary investigation, theaccused may, within 5 days from

the time he learns of the filingof the information, ask for apreliminary investigation withthe same right to adduceevidence in his favor in themanner prescribed in this Rule.

The 5-day period is MANDATORY, failureto file the motion within the said periodamounts to waiver of the right to ask forpreliminary investigation.

Where the information was amendedwithout a new preliminary investigationhaving been conducted, the 5-day periodis computed from the time the accusedlearns of the filing of said amendedinformation.Where the trial court has granted amotion for reinvestigation, it must holdin abeyance the arraignment and trial ofthe

the accused until the prosecutor shallhave conducted and made a report onthe result of such reinvestigation.

The right to bail pending PreliminaryInvestigation under Section 7, Rule 112,a person lawfully arrested may post bailbefore the filing of the information oreven after its filing without waiving hisright to preliminary investigation,provided that he asks for a preliminaryinvestigation by the proper officer withinthe period fixed in the said rule (Peoplevs. Court of Appeals, May 29, 1995).

Section 8. Records

Records of the preliminary investigationshall NOT automatically form part of therecords of the case. Courts are notcompelled to take judicial noticethereof. It must be introduced as anevidence.

Section 9. Cases not requiring apreliminary investigation nor coveredby the Rule on Summary Procedure.

PROCEDURE TO BE FOLLOWED IN CASES

WHICH DO NOT REQUIRE PRELIMINARYINVESTIGATION

1. Evaluate the evidence presented2. Conduct searching questions or

answers3. Require the submission of

additional evidence

For cases under the Revised Rules onSummary Procedure, no warrant shall beissued except where the accused fails to

appear after being summoned.

If the complaint is filed with theprosecutor involving an offensepunishable by imprisonment of less than4 years, 2 months and 1 day, theprocedure in Rule 112, Section 3 (a) shallbe observed.

If the complaint is filed with the MTC,the same procedure under Rule 112,Section 3 (a) shall be observed.



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RULE 113ARREST

Section 1. Definition of arrest.

Arrest the taking of a person intocustody in order that he may be boundto answer for the commission of anoffense (Sec. 1 Rule 113).

Modes of Arrest1. arrest by virtue of a warrant2. arrest without a warrant under

exceptional circumstances asmay be provided by statute (Sec.5, Rule 113).

ESSENTIAL REQUISITES OF A VALIDWARRANT OF ARREST

1. It must be issued upon probablecause which must be determinedpersonally by a judge afterexamination under oath oraffirmation of the complainantand the witnesses he mayproduce

2. The warrant must particularlydescribe the person to be seized

A warrant of arrest has NO expiry date.It remains valid until arrest is effectedor warrant is lifted.

REMEDY FOR WARRANTS IMPROPERLYISSUEDWhere a warrant of arrest wasimproperly issued, the proper remedy isa petition to quash it, NOT a petition forhabeas corpus, since the court in thelatter case may only order his releasebut not enjoin the further prosecution or

the preliminary examination of theaccused (Alimpoos vs. Court of Appeals,106 SCRA 159).

Posting of bail does not bar one fromquestioning illegal arrest (Section 26,Rule 114, Rules of Court).

Section 2. Arrest; how made.

MODES OF EFFECTING ARREST1. By an actual restraint of the

person to be arrested.

2. By his submission to the custodyof the person making the arrest.

Upon arrest, the following may be

confiscated from the person arrested:1. Objects subject of the offense or

used or intended to be used inthe commission of the crime;

2. Objects which are the fruits ofthe crime;

3. Those which might be used bythe arrested person to commitviolence or to escape;

4. Dangerous weapons and thosewhich may be used as evidencein the case.

Section 5. Arrest without warrant;when lawful

LAWFUL WARRANTLESS ARREST1. When, IN HIS PRESENCE, the

person to be arrested hascommitted, is actuallycommitting, or is attempting tocommit an offense (in flagrantedelicto arrests);

2. When an offense has in fact justbeen committed, and he has

probable cause to believe basedon PERSONAL KNOWLEDGE offact and circumstance that theperson to be arrested hascommitted it; (Doctrine of HotPursuit)

3. When the person to be arrestedis a prisoner who has escapedfrom a penal establishment orplace where he is serving finaljudgment or temporarilyconfined while his case is

pending, or has escaped whilebeing transferred from oneconfinement to another.

4. Where a person who has beenlawfully arrested escapes or isrescued (Sec. 13, Rule 113);

5. By the bondsman for the purposeof surrendering the accused(Sec. 23, Rule 114); and

6. Where the accused attempts toleave the country withoutpermission of the court (Sec. 23,Rule 114).



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If the arrest was effected withoutwarrant, the arresting officer mustcomply with the provisions of Art. 125 ofthe RPC, otherwise, he may be held

criminally liable for arbitrary detentionunder Article 124 of the RPC.

RULES ON ILLEGALITY OF ARREST1. An accused who enters his plea

of NOT guilty and participates inthe trial waives the illegality ofthe arrest. Objection to theillegality must be raised beforearraignment, otherwise it isdeemed waived, as the accused,in this case, has voluntarily

submitted himself to thejurisdiction of the court.2. Illegality of warrantless arrest

maybe cured by filing of aninformation in court and thesubsequent issuance by thejudge of a warrant of arrest.

3. Once a person has been dulycharged in court, he may nolonger question his detention bypetition for habeas corpus, hisremedy is to quash theinformation and/or the warrant

of arrest.

Section 6. Time of making arrest.

Unlike a search warrant which must beserved only in daytime, an arrest may bemade on any day and at any time of theday or night, even on a Sunday. This isjustified by the necessity of preservingthe public peace.

Section 7. Method of arrest of officer

by virtue of warrant.

Under this rule, an arrest may be madeeven if the police officer is not inpossession of the warrant of arrest(Mallari vs. Court of Appeals, 265 SCRA456). Exhibition of the warrant prior tothe arrest is not necessary. However, ifafter the arrest, the person arrested sorequires, the warrant shall be shown tohim as soon as practicable.

Section 8. Method of arrest by officerwithout warrant.

Section 9. Method of arrest by private

person.

Citizens arrest - arrest effected by aprivate person.

Method ofarrest

Exception tothe rule on

givinginformation

Sec. 7 The officer

shall inform

the person tobe arrested

the cause of

the arrest and

the fact that

the warrant

has been

issued for his

arrest.

Note: The

officer need

not have the

warrant in his

possession at

the time of

the arrest BUT

must show the

same after the

arrest, if the

person

arrested so

requires.

1. when the

person to be

arrested flees;2. when he

forcibly resists

before the

officer has an

opportunity to

inform him;

and

3. when the

giving of such

information

will imperil the

arrest.

Sec. 8 The officer

shall informthe person to

be arrested of

his authority

and the cause

of the arrest

w/out a

warrant

1. when the

person to bearrested is

engaged in the

commission of

an offense or is

pursued

immediately its

commission;

2. when he

has escaped,

flees, or

forcibly resists

before the



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officer has an

opportunity to

so inform him;

and

3. when thegiving of such

information

will imperil the

arrest.

Sec. 9 The private

person shall

inform the

person to be

arrested of

the intention

to arrest himand the cause

of the arrest.

Note: Private

person must

deliver the

arrested

person to the

nearest police

station or jail,

otherwise, he

may be held

criminally

liable for

illegal

detention.

1. when the

person to be

arrested is

engaged in the

commission of

an offense or is

pursuedimmediately its

commission;

2. when he

has escaped,

flees, or

forcibly resists

before the

officer has an

opportunity to

so inform him;

and

3. when the

giving of such

information

will imperil the

arrest.

Section 10. Officer may summonassistance.

Only an officer making the arrest isgoverned by the rule. It does not cover aprivate individual making an arrest.

Section 11. Right of officer to breakinto building or enclosure.

Requisites before an officer can breakinto a building or enclosure to make anarrest:

1. That the person to be arrested isor is reasonably believed to be insaid building;

2. That he has announced hisauthority and purpose forentering therein;

3. That he has requested and beendenied admittance.

Generally, a lawful arrest may be made

anywhere, even on private property or ina house. This rule is applicable bothwhere the arrest is under a warrant, andwhere there is valid warrantless arrest.

Section 12. Right to break out of thebuilding or enclosure to effect release.

A private person making an arrestCANNOT break in or out of a building orenclosure because only officers areallowed by law to do so.

Section 13. Arrest after escape orrescue.

Where a person lawfully arrestedescapes or is rescued, any person mayimmediately pursue or retake himwithout a warrant at any time and in anyplace within the country. The pursuitmust be immediate.

Section 14. Right of Attorney orrelative to visit person arrested.

RA 7438 defined certain rights of personsarrested, detained, or under custodialinvestigation, with the penalties forviolations thereof.

RULE 114BAIL

Section 1. Bail defined.

Bail -- the security given for the releaseof a person in custody of the law,furnished by him or a bondsman,conditioned upon his appearance beforeany court as required under theconditions specified by the rule (Sec. 1,Rule 114).

A person is in the custody of law whenhe has been either arrested or otherwisedeprived of his freedom or when he has



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voluntarily submitted himself to thejurisdiction of the court by surrenderingto the proper authorities.

All persons, except those charged withoffenses punishable by reclusionperpetua when evidence of guilt isstrong, shall, before conviction, bebailable by sufficient sureties, or bereleased on recognizance as may beprovided by law (Section 13, Article III,1987 Constitution).

Forms of bail:1. corporate surety2. property bond

3. cash deposit4. recognizance

BAILBOND RECOGNIZANCE

An obligation under

seal given by the

accused with one or

more sureties, and

made payable to the

proper officer with

the condition to be

void upon

performance by the

accused of such acts

as he may legally be

required to perform

an obligation of

record, entered into

before some court or

magistrate duly

authorized to take it,

with the condition to

do some particular

act;

Prosecution witnesses may also berequired to post bail to ensure theirappearance at the trial of the casewhere:

1. there is a substitution of information (Sec. 4, Rule110),and

2. where the court believes that a

material witness may not appearat the trial (Sec. 14, Rule 119).

Section 2. Conditions of the bail;requirements.

CONDITIONS OF BAIL1. The undertaking shall be

effective upon approval, and,unless cancelled, shall remain inforce at all stages of the caseuntil promulgation of the

judgment of the RTC,

irrespective of whether the casewas originally filed in orappealed to it;

2. The accused shall appear before

the proper courts whenever sorequired by the court or theseRules;

3. The failure of the accused toappear at the trial withoutjustification despite due noticeshall be deemed a waiver of hisright to be present thereat. Insuch case, the trial may proceedin absentia;

4. The bondsman shall surrenderthe accused to court for

execution of the final judgment.

No additional conditions can be imposed.

A detention prisoner who escaped waiveshis right to cross-examination (Jimenezv. Nazareno).

By filing a fake bail bond, an appellant isdeemed to have escaped fromconfinement during the pendency of hisappeal and in the normal course ofthings, his appeal should be dismissed.

No release or transfer except on courtorder or bail.No person under detention by legalprocess shall be released or transferredexcept upon order of the court or whenhe is admitted to bail (Sec. 3).

Section 4. Bail, a matter of right;exception.

When a matter of right:

1. before or after conviction in thelower courts; AND

2. before conviction by the RTC,EXCEPT when the imposablepenalty is death, reclusionperpetua or life imprisonmentand evidence of guilt is strong.

In instances where bail is a matter ofright and the bail to be granted is basedon the recommendation of theprosecution as stated in the information



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or complaint, a hearing is NOTnecessary.

But where, however, there is a reduction

of bail as recommended or afterconviction by the RTC of an offense notpunishable by death, reclusion perpetua,or life imprisonment wherein the grantof bail is discretionary, there must be ahearing before a bail is granted in orderto afford the prosecution the chance tooppose it (Bangayan vs. Butacan, 345SCRA 301).

The prosecution cannot adduce evidencefor the denial of bail where it is a matter

of right. However, where the grant ofbail is discretionary, the prosecutionmay show proof to deny the bail.

An extraditee is not entitled to bail. TheConstitutional provision on Bail as wellas Sec. 4 of Rule 114 applies only when aperson has been arrested and detainedfor violation of Philippine Criminal laws.It does not apply to extraditionproceedings because extradition courtsdo not render judgments of conviction oracquittal (Govt. of US vs. Judge

Purganan, Sept. 24, 2002).

Section 5. Bail, whendiscretionary.

RULES ON AVAILABILITY OF BAIL1. Regardless of stage of the

criminal prosecution, no bailshall be allowed if the accused ischarged with a capital offense oran offense punishable byreclusion perpetua AND the

evidence of guilt is strong (Sec.7);

2. Before and after conviction bythe MTC, Municipal Trial Court orMCTC, bail is a matter of right(Sec.4).

3. Before conviction by the RTCwhether in the exercise of itsoriginal or appellate jurisdiction,bail is a matter of right. (Sec.4)

4. Upon conviction by the RTC of anoffense not punishable by death,reclusion perpetua or life

imprisonment, admission to bailis discretionary (Sec. 5);

5. After conviction by the RTCwherein a penalty of

imprisonment exceeding 6 butnot more than 20 years isimposed, and not one of thecircumstances below is presentand proved, bail is a matter ofdiscretion (Sec.5).a) Recidivism, quasi-recidivism

or habitual delinquency orcommission of crimeaggravated by thecircumstances of reiteration.

b) Previous escape from legal

confinement, evasion ofsentence or violation of theconditions of bail withoutvalid justification.

c) Commission of the offensewhile on probation, parole orunder conditional pardon

d) Circumstance of the accusedor his case indicates theprobability of flight ifreleased on bail

e) Undue risk of commission ofanother crime by the

accused during pendency ofappeal.

6. After conviction by the RTCimposing a penalty of imprisonment exceeding 6 yearsbut not more than 20 years andany of the circumstanceenumerated above and othersimilar circumstance is presentand proved, no bail shall begranted (Sec.5);

7. After judgment has become final

unless accused applied forprobation before commencing toserve sentence of penalty andoffense within purview ofprobation law (Sec. 24).

Section 6. Capital Offense, defined.

Capital Offense is an offense which,under the law existing at the time of itscommission AND at the time of theapplication to be admitted to bail, maybe punished with death.



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If the law at the time of commissiondoes not impose the death penalty, thesubsequent amendment of the law

increasing the penalty cannot apply tothe case, otherwise it would be ex postfacto, and penalties are determined bythe law at the time of the commission ofthe offense.

If the law at the time of the applicationfor bail has amended the prior law whichimposed the death penalty by reducingsuch penalty, such favorable lawgenerally has a retroactive effect.

Section 7. Capital Offense not bailable.

Capital offense or those punishable byreclusion perpetua, life imprisonment ordeath are NOT BAILABLE when evidenceof guilt is strong.EXCEPTION: If the accused charged witha capital offense is a minor.

Section 8. Burden of proof in bailapplication.

The hearing should be summary or

otherwise in the discretion of the courtbut the right of the prosecution tocontrol the quantum of evidence and theorder of presentation of witnesses mustbe equated with the purpose of thehearing to determine the bailability ofthe accused.

The burden of proving that the evidenceof guilt is strong lies within the fence ofthe prosecution. (Comia vs. Antona, 337SCRA 656)

Evidence of guilt is strong when proof isevident or the presumption of guilt isstrong. The test is NOT whether theevidence establishes guilt beyondreasonable doubt but rather whether itshows

shows evident guilt or a greatpresumption of guilt.

Section 9. Amount of bail; guidelines.FACTORS TO BE CONSIDERED IN FIXINGTHE REASONABLE AMOUNT OF BAIL(NOT EXCLUSIVE)

1. Financial ability of the accusedto give bail;

2. Nature and circumstances of theoffense;

3. Penalty for the offense charged;4. Character and reputation of the

accused;5. Age and health of the accused;6. Weight of evidence against the

accused;7. Probability of the accused

appearing at the trial;

8. Forfeiture of other bail;9. The fact that the accused was afugitive from justice whenarrested; and

10. Pendency of other cases whenthe accused is on bail

Bail must not be in a prohibitoryamount. Excessive bail is not to berequired for the purpose of preventingthe accused from being admitted to bail.

Section 11. Property, how posted.

Property Bond is an undertakingconstituted as a lien on the real propertygiven as security for the amount of thebail (sec11);

It is required that the annotation of alien on the land records of the propertyposted as bail, otherwise the propertybail bond shall be cancelled.

Section 12. Qualifications of sureties inproperty bond.

Philippine residency is required of aproperty bondsman. The reason for thisis that bondsmen in criminal cases,residing outside of the Philippines, arenot within the reach of the processes ofits courts (Villaseor vs. Abano, 21 SCRA312).

Section 13. Justification of sureties.



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The purpose of the rule requiring theaffidavit of qualification by the suretybefore the judge, is to enable the latterto determine whether or not the surety

possesses the qualification to act assuch, especially his financial worth.

The justification being under oath, anyfalsity introduced thereto by the suretyupon a matter of significance wouldrender him liable for perjury.

Section 14. Deposit of cash as bail.

EFFECT OF DEPOSITING CASH AS BAILAccused shall be discharged from

custody as it is considered as bail.

Section 15. Recognizance

Recognizance - an obligation of record,entered into before some court orofficer authorized to take it with acondition to do some particular act andthe accused is often allowed to obligatehimself to answer the charge.

Section 16. Bail when not required;reduced bail on recognizance.

Instances wherein the accused may bereleased on recognizance, withoutputting bail or on reduced bail:

CAN BERELEASEDWITHOUT BAIL

1. Offense charged is

violation of an

ordinance, light

felony or a criminal

offense, the

imposable penalty

wherefore does notexceed 6 months of

imprisonment and/or

fine of P 2,000 under

R.A.6036.

2. Where the accused

has applied for

probation and

before the same has

been resolved but

no bail was filed or

the accused is

incapable of filing

one, in which case

he may be released

on recognizance

3. In case of a

youthful offender

held for physical or

mental examination,

trial or appeal, if

unable to furnish bail

and under the

circumstances under

PD 603, as amended

ON REDUCED

BAIL OR ON HISOWNRECOGNIZANCE

A person in custody for a

period equal to or morethan the minimum of the

principal penalty

prescribed for the

offense charged, without

application of the

indeterminate sentence

law or any modifying

circumstance shall be

released on reduced bail

or on his own

recognizance.

UNDER THEREVISED RULESON SUMMARYPROCEDURE

General Rule: no bail

Exception:

1. When a warrant of

arrest is issued for

failure to appear when

required by the court

2. When the accused

- is a recidivist;

- is a fugitive from

justice;

- is charged with

physical injuries

- does not reside in the

place where theviolation of the law or

ordinance is

committed; or

-has not reside in the

place where the

violation of the law or

ordinance is

committed; or

-has no known

residence

Section 17. Bail, where filed.



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1. May be filed with the courtwhere the case is pending, or inthe absence or unavailability ofthe judge thereof, with another

branch of the same court withinthe province or city.

2. Whenever the grant of bail is amatter of discretion, or theaccused seeks to be released onrecognizance,

3. the application therefor may befiled only in the particular courtwhere the case is pending,whether for preliminaryinvestigation, trial or appeal.

4. Any person in custody who is not

yet charged in court may applyfor bail with any court in theprovince, city or municipalitywhere he is held.

Section 18. Notice of application toprosecutor.Such notice is necessary because theburden of proving that the evidence ofguilt is strong is on the prosecution andthat the discretion of the court inadmitting the accused to bail can onlybe exercised after the fiscal has been

heard regarding the nature of theevidence in his possession. (People vs.Raba, 130 Phil. 384)

Section 19. Release on bail.

Once the accused has been admitted tobail, h is entitled to immediate releasefrom custody. An officer who fails orrefuses to release him from detentionnotwithstanding the approval by theproper court of his bailbond, may be

held liable under Article 126 of theRevised Penal Code for delaying release.

Section 20. Increase or reduction ofbail.

The guidelines provided for in Section 9,Rule 114, in fixing the amount of bail arealso applicable in reducing or increasingthe bail previously fixed.

Where the offense is bailable as amatter of right, the mere probability

that the accused will escape, or even ifhe had previously escaped while underdetention, does not deprive him of hisright to bail. The remedy is to increase

the amount of the bail, provided suchamount would not be excessive. (SyGuan vs. Amparo, 79 Phil. 670)

Section 21. Forfeiture of bail.

Within 30 days from the failure of theaccused to appear in person as required,the bondsmen must:

A. PRODUCE the body of theirprincipal or give the reason forhis non-production; AND

B. EXPLAIN why the accused did notappear before the court whenfirst required to do so.

The 30-day period granted to thebondsmen to comply with the tworequisites for the lifting of the order offorfeiture cannot be shortened by thecourt but may be extended for goodcause shown..ORDER OF FORFEITURE VS. ORDER OFCONFISCATION

1. an ORDER OF FORFEITURE isconditional and interlocutory,there being something more tobe done such as the productionof the accused within 30 days asprovided by the rules an order offorfeiture is not appealable

2. an ORDER OF CONFISCATION isnot independent of the order ofthe order of forfeiture. It is ajudgment ultimately determiningthe liability of the surety

thereunder, and therefore finaland execution may issue at once.

Section 22. Cancellation of bailbond.

INSTANCES WHEN BAIL BOND CAN BECANCELLED

1. upon application by thebondsman with notice to thefiscal and upon surrender of theaccused; and

2. upon proof that the accuseddied.



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The bail bond is automatically cancelledupon the acquittal of the accused ordismissal of the case or execution of the

final order of conviction, withoutprejudice to any liability on the bondincurred prior to their discharge.

METHODS BY WHICH SURETIES MAYRELIEVE THEMSELVES FROMRESPONSIBILITIES

a. Arrest the principal and deliverhim to the proper authorities;

b. They may cause his arrest to bemade by any police officer orother person of suitable age or

discretion; orc. By endorsing the authority toarrest upon a certified copy ofthe undertaking and delivering itto such officer or person

Section 23. Arrest of accused out onbail.

An accused released on bail may be re-arrested without a warrant if heattempts to depart from the Philippineswithout prior permission of the court

where the case is pending.

Section 24. No bail after finaljudgment; exception.

GENERAL RULE: The finality of thejudgment terminates the criminalproceeding. Bail becomes of no avail.The judgment contemplated is ajudgment of conviction. The judgment isfinal if the accused does not appeal theconviction.

No bail shall be granted after judgment,if the case has become final even ifcontinued confinement of the accusedwould be detrimental or dangerous to hishealth. The remedy would be to submithim to medical treatment orhospitalization.

EXCEPTION: If the accused applies forprobation he may be allowed temporary

liberty under his existing bail bond, or ifno bail was filed, or is incapable of filingone, he may be released onrecognizance to the custody of a

responsible member of the community

The application for probation must befiled within the period of perfecting anappeal. Such filing operates as a waiverof the right to appeal. The accused inthe meantime, is entitled to be releasedon bail or recognizance. (Sec. 4, PD 968,as amended)

Section 25. Court supervision ofdetainees.

The employment of physical,psychological or degrading punishmentagainst any prisoner or detainee or theuse of substandard or inadequate penalfacilities under subhuman conditionsshall be dealt with by law (Section 19(2),Article III, 1987 Constitution).

Section 26. Bail not a bar to objectionon illegal arrest, lack of or irregularpreliminary investigation.

AN APPLICATION FOR OR ADMISSION TOBAIL SHALL NOT BAR THE ACCUSED

a. from challenging the validity ofhis arrest OR

b. legality of the warrant issuedtherefore, OR

c. from assailing the regularity orquestioning the absence ofpreliminary investigation of thecharge against him, PROVIDED,he raises them before enteringhis plea.

RULE 115RIGHTS OF THE ACCUSED

This rule enumerates the rights of aperson accused of an offense, which areboth constitutional as well as statutory,save the right to appeal, which is purelystatutory in character.

Section 1. Rights of the accused at thetrial.



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A. TO BE PRESUMED INNOCENTIn all criminal prosecutions, the accusedis presumed innocent until the contraryis proved beyond reasonable doubt.

Reasonable Doubt is that doubtengendered by an investigation of thewhole proof and an inability, after suchinvestigation, to let the mind rest easyupon the certainty of guilt. Absolutecertainty of guilt is not demanded by thelaw to convict of any criminal charge butmoral certainty is required, and thiscertainty is required as to everyproposition of proof requisite toconstitute the offense.

Equipoise rule where the evidence ofthe parties in a criminal case are evenlybalanced, the constitutional presumptionof innocence should tilt in favor of theaccused and must be acquitted.

B. TO BE INFORMED OF THE NATUREAND THE CAUSE OF THE ACCUSATIONAGAINST HIM.An accused cannot be convicted of anoffense unless it is clearly charged in thecomplaint or information. To convict him

of an offense other than that charged inthe complaint or information would be aviolation of this constitutional right(People vs. Ortega, 276 SCRA 166).

When a person is charged in a complaintwith a crime and the evidence does notshow that he is guilty thereof, but doesshow that he is guilty of some othercrime or a lesser offense, the court maysentence e him for the lesser offense,PROVIDED the lesser offense is a cognate

offense and is included in the complaintwith the court.

C. TO BE PRESENT AND DEFEND INPERSON AND BY COUNSEL AT EVERYSTAGE OF THE PROCEEDING

THE PRESENCE OF THE ACCUSED ISREQUIRED ONLY

1. During arraignment (Sec. 1b,rule 116)

2. Promulgation of judgmentEXCEPT when the conviction isfor a light offense, in whichcase, it may be pronounced in

the presence of his counsel or arepresentative

3. When ordered by the court forpurposes of identification

Not applicable in SC and CA - The lawsecuring to an accused person the rightto be present at every stage of theproceedings has no application to theproceedings before the Court of Appealsand the Supreme Court nor to the entryand promulgation of their judgments The

defendant need not be present in courtduring the hearing of the appeal. (Sec. 9Rule 124)

Accused may waive his right to bepresent during the trial. HOWEVER, hispresence may be compelled when he isto be identified. (Aquino, Jr. vs.Military Commission, 63 SCRA 546)

EFFECTS OF WAIVER OF THE RIGHT TOAPPEAR BY THE ACCUSED

1. waiver of the right to present

evidence;2. prosecution can present

evidence if accused fails toappear;

3. the court can decide withoutaccuseds evidence.

TRIAL IN ABSENTIAIt is important to state that the provisionof the Constitution authorizing the trialin absentia of the accused in case of hisnon-appearance AFTER ARRAIGNMENT

despite due notice simply means that hethereby waives his right to meet thewitnesses face to face among others.

Such waiver of a right of the accuseddoes not mean a release of the accusedfrom his obligation under the bond toappear in court whenever so required.The accused may waive his right but nothis duty or obligation to the court.

REQUIREMENTS FOR TRIAL IN ABSENTIA1. accused has been arraigned



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2. he has been duly notified of thetrial

3. his failure to appear isunjustified

An escapee who has been duly tried inabsentia waives his right to presentevidence on his own behalf and toconfront and cross-examine witnesseswho testified against him. (Gimenez vs.Nazareno, 160 SCRA 1)

D. RIGHT TO COUNSELThe right covers the period beginningfrom custodial investigation, well intothe rendition of the judgment and even

on appeal. (People vs. Serzo, Jr., 274SCRA 553)

If during the investigation the assistinglawyer left, or come and go, thestatement signed by the accused is stillinadmissible because the lawyer shouldassist his client from the time theconfessant answers the first questionasked by the investigating officer untilthe signing of the extrajudicialconfession. (People vs. Morial, 363 SCRA96)

The right to counsel and the right toremain silent do not cease even after acriminal complaint/information hasalready been filed against the accused,AS LONG AS he is still in custody.

The duty of the court to appoint acounsel de oficio when the accused hasno legal counsel of choice and desires toemploy the services of one isMANDATORY only at the time of

arraignment. (Sec. 6 Rule 116)

E. TO TESTIFY AS WITNESS IN HIS OWNBEHALFA denial of the defendants right totestify in his behalf would constitute anunjustifiable violation of hisconstitutional right. (People vs.Santiago, 46 Phil. 734)

If the accused testifies, he may be cross-examined but ONLY on matters coveredby his direct examination, unlike an

ordinary witness who can be cross-examined as to any matter stated in thedirect examination or connectedtherewith (Section 6, Rule 132). His

failure to testify is not taken against himbut failure to produce evidence in hisbehalf is considered against him (U.S.vs. Bay, 97 Phil. 495).

F. RIGHT AGAINST SELF-INCRIMINATION

The accused is protected under this rulefrom questions which tend to incriminatehim, that is, which may subject him topenal liability.

The right may be waived by the failureof the accused to invoke the privilege atthe proper time, that is, AFTER theincriminating question is asked andbefore his answer;

The privilege of the accused to beexempt from testifying as a witnessinvolves a prohibition against testimonialcompulsion only and the production bythe accused of incriminating documents,and articles demanded from him. (U.S.vs. Tan Teng, 23 Phil. 145)

EXCEPTIONS: immunity statutes such as:1. RA 1379 Forfeiture of Illegally

obtained wealth2. RA 749 Bribery and Graft cases

RIGHT OF THE ACCUSED AGAINST SELF-INCRIMINATION VS. RIGHT OF THAT OFAN ORDINARY WITNESSThe ordinary witness may be compelledto take the witness stand and claim theprivilege as each question requiring an

incriminating answer is shot at him, anaccused may altogether refuse to takethe witness stand and refuse to answerany and all questions.

G. RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIMAT TRIAL

Confrontation is the act of setting awitness face-to-face with the accused sothat the latter may make any objectionhe has to the witness, and the witness



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may identify the accused, and this musttake place in the presence of the courthaving jurisdiction to permit theprivilege of cross-examination.

The main purpose of the right toconfrontation is to secure theopportunity of cross-examination and thesecondary purpose is to enable the judgeto observe the demeanor of witnesses.

In any criminal proceeding, thedefendant enjoys the right to havecompulsory process to secure theattendance of witnesses and theproduction of evidence in his behalf.

H. RIGHT TO SPEEDY, IMPARTIAL ANDPUBLIC TRIALThe right to a speedy trial is intended toavoid oppression and to prevent delay byimposing on the courts and on theprosecution an obligation to proceedwith reasonable dispatch.

The courts, in determining whether theright of the accused to a speedy trial hasbeen denied, should consider such factsas the length of the delay, the accuseds

assertion or non-assertion of his right,and the prejudice to the accusedresulting from the delay.There is NO violation of the right wherethe delay is imputable to the accused.(Solis vs. Agloro, 64 SCRA 370)

REMEDIES AVAILABLE TO THE ACCUSEDWHEN HIS RIGHT TO A SPEEDY TRIAL ISVIOLATED

1. He should ask for the trial of the

case not for the dismissal;2. Unreasonable delay of the trial

of a criminal case as to make thedetention of defendant illegalgives ground for habeas corpusas a remedy for obtainingrelease so as to avoid detentionfor a reasonable period of time

3. Accused would be entitled torelief in a mandamus proceedingto compel the dismissal of theinformation.

IMPARTIAL TRIALDue process of law requires a hearingbefore an impartial and disinterestedtribunal, and that every litigant is

entitled to nothing less than the coldneutrality of an impartial judge. (Mateo,

Jr. vs. Villaluz, 50 SCRA 180)

Public trial one held openly orpublicly; it is sufficient that the relativesand friends who want to watch theproceedings are given the opportunity towitness the proceedings.

EXCLUSION OF THE PUBLIC IS VALIDWHEN:

1. evidence to be produced isoffensive to decency or publicmorals;

2. upon motion of the accused;(Sec. 21, Rule 119)

RULE ON TRIAL BY PUBLICITYThe right of the accused to a fair trial isnot incompatible to a free press.Pervasive publicity is not per se asprejudicial to the right to a fair trial. Towarrant a finding of prejudicialpublicity, there must be allegations and

proof that the judges have been undulyinfluenced, not simply that they mightbe, by the barrage of publicity. (Peoplevs. Teehankee, 249 SCRA 54)

I. RIGHT TO APPEAL ON ALLCASES ALLOWED BY LAW AND IN THEMANNER PRESCRIBED BY LAW.The right to appeal from a judgment ofconviction is fundamentally of statutoryorigin. It is not a matter of absoluteright, independently of constitutional or

statutory provisions allowing suchappeal.

WAIVER OF THE RIGHT TO APPEALThe right to appeal is personal to theaccused and similarly to other rights ofkindred nature, it may be waived eitherexpressly or by implication. HOWEVER,where death penalty is imposed, suchright cannot be waived as the review ofthe judgment by the COURT OF APPEALSis automatic and mandatory (A.M. NO.00-5-03-SC).

REMEDIAL LAW COMMITTEECHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, CharissimaeVentura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions andSpecialProceedings); Jeenice de Sagun (Criminal

CrimProc San Beda

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