Criminal Procedure Memory Aid

San Beda College of Law 135

MEMORY AID IN REMEDIAL LAW

CRIMINAL PROCEDURE

Criminal Jurisdiction – powerof the State to try and punisha person for a violation of itspenal laws.

REQUISITES FOR A VALID EXERCISEOF CRIMINAL JURISDICTION:

1. The offense, by virtue ofthe imposable penalty ORits nature, is one whichthe court is by lawauthorized to takecognizance of,(jurisdiction over theSUBJECT MATTER).

2. The offense must havebeen committed within itsterritorial jurisdiction,(jurisdiction over theTERRITORY).

3. The person charged withthe offense must havebeen brought to itspresence for trial,forcibly by warrant ofarrest or upon hisvoluntary submission tothe court, (jurisdictionover the PERSON OF THEACCUSED).

JURISDICTIONOVER THE

SUBJECT MATTER

JURISDICTIONOVER THE

PERSON OF THEACCUSED

Derived from thelaw. It cannever be

acquired solelyby consent ofthe accused.

May be acquiredby consent ofthe accused orby waiver ofobjections.

Objection thatthe court has no

If he fails tomake his

jurisdiction ofthe subjectmatter may bemade at anystage of the

proceeding, andthe right tomake such

objection isnever waived.

objection intime, he will bedeemed to havewaived it.

DETERMINATION OF CRIMINALJURISDICTION:

1. Determined by theallegations in thecomplaint or informationnot by the results ofproof or by the trialcourt’s appreciation ofthe evidence presented.

2. Determined by the law inforce at the time of theinstitution of thecriminal action. ONCEVESTED, IT CANNOT BEWITHDRAWN BY:a) subsequent valid

amendment of theinformation; or

b) a subsequent statutoryamendment of the rulesof jurisdiction,UNLESS the amendatorylaw providesotherwise.

RULE 110PROSECUTION OF OFFENSES

Section 1. Institution ofcriminal actions.

REMEDIAL LAW COMMITTEE CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS : Martessa Nuylan,CharissimaeVentura, Jocelyn Zabala SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (SpecialCivil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)


MEMORY AID IN REMEDIAL LAWFor offenses where apreliminary investigation isrequired - by filing thecomplaint with the properofficer for the purpose ofconducting the requisitepreliminary investigation.

Preliminary investigation isREQUIRED for offenses where thepenalty prescribed by law is atleast 4 years, 2 months and1day without regard to fine(Rule 112, Sec. 1 Par.2).

For all other offenses - byfiling the complaint orinformation directly with theMunicipal Trial Courts andMunicipal Circuit Trial Courts,or the complaint with theoffice of the prosecutor.

DOES NOT APPLY to offenseswhich are subject to summaryprocedure.

Effect of institution of thecriminal action:It interrupts the running ofthe period of prescription ofthe offense charged unlessotherwise provided by speciallaws.

Remedies of the offended partyif the prosecutor refuses tofile an information:

1. file an action formandamus, in case ofgrave abuse ofdiscretion;

2. lodge a new complaintbefore the court havingjurisdiction over theoffense;

3. take up the matter withthe Secretary of Justicein accordance with theRev. Administrative Code;

4. institute anadministrative chargesagainst the erringprosecutor; and

5. file criminal actionagainst the prosecutorwith the correspondingcivil action for damages.

May Injunction Issue toRestrain Criminal Prosecution?GENERAL RULE: Criminalprosecutions may NOT berestrained or stayed byinjunction, preliminary orfinal. The reason being, publicinterest requires that criminalacts be immediatelyinvestigated and prosecuted forthe protection of the society(Domingo vs. Sandiganbayan, 322 SCRA655). EXCEPTIONS:1. To afford adequate

protection to theconstitutional rights of theaccused;

2. When necessary for theorderly administration ofjustice or to avoidoppression or multiplicityof actions;

3. When there is a prejudicialquestion which is subjudice;

4. When the acts of the officerare without or in excess ofauthority;

5. When the prosecution isunder an invalid law,ordinance or regulation;

6. When double jeopardy isclearly apparent;



MEMORY AID IN REMEDIAL LAW7. When the court had no

jurisdiction over theoffense;

8. When it is a case ofpersecution rather thanprosecution;

9. When the charges aremanifestly false andmotivated by lust forvengeance; and

10. When there is clearly noprima facie case against theaccused and a motion toquash on that ground hasbeen denied.

Section 2. Form of thecomplaint or information.

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

of the Philippines; and3. Against all persons who

appear to be responsiblefor the offense involved.

Section 3. Complaint defined.

A Complaint is:1. a sworn written

statement; 2. charging a person with an

offense; 3. subscribed by the

offended party, any peaceofficer or other publicofficer charged with theenforcement of the lawviolated.

The complaint mentioned in thissection refers to one filed incourt for the commencement of acriminal prosecution forviolation of a crime, usuallycognizable by municipal trialcourts as well as to a

complaint filed by an offendedparty in private crimes orthose which cannot beprosecuted de officio.

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

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

the People of thePhilippines;

3. it must charge a personwith an offense; and

4. it must be subscribed bythe offended party, byany peace officer orpublic officer chargedwith the enforcement ofthe law violated.

PERSONS WHO CAN FILE ACOMPLAINT

1. Offended party 2. Any peace officer3. Other public officer

charged with theenforcement of the lawviolatedex. Internal RevenueOfficer for violation ofthe NIRC, custom agentswith respect toviolations of the Tariffand 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 withthe court.

REQUISITES OF AN INFORMATION1. it must be in writing;



MEMORY AID IN REMEDIAL LAW2. it must charge a person

with an offense;3. it must be subscribed by

the fiscal; and4. it must be filed in

court.

COMPLAINT INFORMATIONSubscribed by theoffended party,

any peace officeror other officercharged with theenforcement ofthe law violated

Subscribed bythe fiscal

(indispensablerequirement)

it may be filedeither in court

or in theprosecutor’s

office

it is filedwith thecourt

must be madeunder oath

need not beunder oath

Prosecution in the RTC arealways commenced byinformation, EXCEPT:

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

2. defamations imputing anyof the aforesaid offenseswherein a sworn writtencomplaint is required inaccordance with section 5of this Rule.

Section 5. Who must prosecutecriminal actions.FULL DISCRETION AND CONTROL OFTHE PROSECUTORAll criminal actions commencedby a complaint or informationshall be prosecuted under thedirection and control of theprosecutor.

A PRIVATE PROSECUTOR may beauthorized to prosecute acriminal action subject to thefollowing conditions:

1. the public prosecutor hasa heavy work schedule, orthere is no publicprosecutor assigned inthe province or city;

2. the private prosecutor isauthorized IN WRITING bythe Regional StateProsecutor (RSP),Provincial or CityProsecutor;

3. the authority of theprivate prosecutor mustbe approved by the court;

4. the private prosecutorshall continue toprosecute the case untilthe end of the trialunless the authority iswithdrawn or otherwiserevoked by the RSP,Provincial or CityProsecutor; and

5. In case of the withdrawalor revocation of theauthority of the privateprosecutor, the same mustbe approved by court.(Memo Circ. No. 25, April26, 2002, RegardingAmendment to Sec. 5, Rule110)

In appeals before the CA andthe SC, it is only theSolicitor General that isauthorized to bring and defendactions in behalf of the Peopleof the Philippines (People vs.Nano, 205 SCRA 155).

In all cases elevated to theSandiganbayan and from the



MEMORY AID IN REMEDIAL LAWSandiganbayan to the SC, theOffice of the Ombudsman,through its Special Prosecutorshall represent the People ofthe Philippines, EXCEPT incases filed pursuant to E.O.Nos. 1, 2, 14 and 14-A, issuedin 1986 (Sec. 4, RA 8249).

PROSECUTION OF CRIMES AGAINSTCHASTITY

WHO MAY PROSECUTE1. Concubinage and adultery – only

by the offended spouse who should have the status, capacity, and legal representation at the time of filing of the complaint, regardless of age;

2. Seduction, Abduction and Acts ofLasciviousness – prosecutedexclusively and successivelyby the following persons inthis order:a) by the offended womanb) by the parents,

grandparents orlegal/judicial guardiansin that successive order

c) by the State in theexercise of the right ofparens patriae, when theoffended party dies orbecomes incapacitatedbefore she could file thecomplaint and she has noknown parents,grandparents or guardian.

3. A defamation imputing to aperson any of the foregoingcrimes of concubinage,adultery, seduction,abduction, rape or acts oflasciviousness can beprosecuted only by the partyor parties defamed (Article

360, last par., RevisedPenal Code).

If the offended party is oflegal age AND does not sufferfrom physical or mentaldisability, she alone can filethe complaint to the exclusionof all others.

WHO CAN GIVE PARDON1. Concubinage and adultery - only

the offended spouse, nototherwise incapacitated, canvalidly extend the pardon orconsent contemplatedtherein.

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

with sufficientdiscretion, can validlypardon the accused byherself if she has noparents or where theaccused is her own fatherand her mother is dead;

b) the parents, grandparentsor guardian of theoffended minor, in thatorder, CANNOT extend avalid pardon in saidcrimes WITHOUT theconformity of theoffended party, even ifthe latter is a minor;

c) if the offended woman isof age and not otherwiseincapacitated, only shecan extend a validpardon.

The pardon refers to pardonBEFORE filing of the criminalcomplaint in court. Pardoneffected after the filing ofthe complaint in court does NOT



MEMORY AID IN REMEDIAL LAWprohibit the continuance of theprosecution of the offenseEXCEPT in case of marriagebetween the offender and theoffended party.

PARDON vs. CONSENTConsent refers to future acts,while pardon refers to pastacts of adultery. Theimportance of this distinctionis that consent, in order toabsolve the accused fromliability, is sufficient evenif granted only to theoffending spouse, whereaspardon must be extended to bothoffenders The SUBSEQUENT MARRIAGE betweenthe offended party and theaccused extinguishes thecriminal liability of thelatter, together with that ofthe co-principals, accomplicesand accessories. EXCEPT:

1. where the marriage wasinvalid or contracted inbad faith in order toescape criminalliability,

2. in “private libel” 3. in multiple rape, insofar

as the other accused in the other acts of rape respectively committed bythem are concerned.

The ACQUITTAL OR DEATH of oneof the accused in the crime ofadultery does not bar theprosecution of the otheraccused (People vs. Topiño, et al., 35Phil. 901). HOWEVER, the death ofthe offended spouse before thefiling of the complaint for

adultery bars furtherprosecution, BUT if theoffended spouse died after thefiling of the correspondingcomplaint, his death will NOTprevent the proceeding fromcontinuing to its ultimateconclusion.

DESISTANCE of complainantdoes not bar criminalprosecution but it operates aswaiver of the right to pursuecivil indemnity.

Section 6. Sufficiency ofcomplaint or information.

CONTENTS OF A VALID COMPLAINTOR INFORMATION

1. Name of the accused,including any appellationor nicknameAn error in the name ofthe accused is notreversible as long as hisidentity is sufficientlyestablished and thisdefect is curable at anystage of the proceedingsas the insertion of thereal name of the accusedis merely a matter ofform.

2. The designation of theoffense

3. The acts or omissionscomplained of asconstituting the offense

4. The name of the offendedparty

5. The approximate time ofthe commission of theoffense

6. The place wherein theoffense was committed



MEMORY AID IN REMEDIAL LAWPURPOSE OF THE RULE

1. To inform the accused ofthe nature and cause ofaccusation against him.

2. To notify the defendantof the criminal actsimputed to him so that hecan duly prepare hisdefense.

Substantial defect in theinformation cannot be cured byevidence that would jeopardizethe accused’s right to beinformed of the true nature ofthe offense he is being chargedwith

Section 7. Name of theaccused.

PURPOSEThe manifest intent of theprovision is to make a specificidentification of the person towhom the commission of anoffense is being imputed.

Section 8. Designation of theoffense.

The information or complaintmust state or designate thefollowing whenever possible:

1. The designation of theoffense given by thestatute.

2. The statement of the actsor omissions constitutingthe offense, in ordinary,concise and particularwords.

3. The specific qualifyingand aggravatingcircumstances must be

stated in ordinary andconcise language.

The qualifying and aggravatingcircumstances cannot beappreciated even if provedUNLESS alleged in theinformation.

In case of allegation ofaggravating circumstance ofHABITUAL DELINQUENCY, it shouldnot be generally averred. Theinformation must specify therequisite data regarding:

1. the commission of thecrimes;

2. the last conviction orrelease;

3. the other previousconviction or release ofthe accused.

ALLEGATIONS PREVAIL OVERDESIGNATION OF THE OFFENSE INTHE INFORMATION

It is not the designation ofthe offense in the complaint orinformation that is controlling(People vs. Samillano, 56 SCRA 573);the facts alleged therein andnot its title determine thenature of the crime (People vs.Magdowa, 73 Phil. 512).

The accused may be convicted ofa crime more serious than thatnamed in the title orpreliminary part if such crimeis covered by the facts allegedin the body of the informationand its commission isestablished by evidence (Buhatvs. Court of Appeals, 265 SCRA 701).




Limitation on the rule that anaccused may be convicted of acrime which is more seriousthan that named in the title solong as the facts alleged themore serious offense:

An accused could not beconvicted under one act when heis charged with a violation ofanother if the change from onestatute to the other involves:

a) a change in the theory ofthe trial;

b) requires of the defendanta different defense; or

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

.Section 9. Cause of theaccusation.

PURPOSE1. to enable the court to

pronounce properjudgment;

2. to furnish the accusedwith such a descriptionof the charge as toenable him to make adefense;

3. as a protection againstfurther prosecution forthe same cause.

RULE ON NEGATIVE AVERMENTSGENERAL RULE: Where the statutepenalizes generally the actstherein defined and is intendedto apply to all personsindiscriminately, theinformation is sufficient evenif does not allege that theaccused falls within theexcepted situation, for then

the complete definition of theoffense is entirely separablefrom the exceptions and can bemade without reference to thelatter. In this case, theexception is a matter ofdefense which the accused hasto prove.

EXCEPTION: Where the statutealleged to have been violatedapplies only to a specificclass of persons and to specialconditions, the informationmust allege facts establishingthat the accused falls withinthe specific class affected andnot those affected from thecoverage of law. Where negativeaverment is an essentialelement of the crime, it mustbe proved.

Section 10. Place of commissionof the offense

PURPOSETo show territorialjurisdiction.

Section 11. Date of commissionof the offense

GENERAL RULE: It is NOT required that thecomplaint or information statewith particularity the PLACEwhere the crime was committedand the DATE of the commissionof the crime.EXCEPTION:If the PLACE/DATE of thecommission of the offenseconstitutes an essentialelement of the offense.




Section 12. Name of theoffended party

GENERAL RULE: The offendedparty must be designated byname, nickname, any otherappellation or by fictitiousname.EXCEPTION: In crimes againstproperty, the description ofthe property must supplementthe allegation that the owneris unknown.

Section 13. Duplicity ofoffense.

There is duplicity when thecomplaint or informationcharges 2 or more DISTINCT orDIFFERENT offenses.

GENERAL RULE:A complaint or information mustcharge only one offense.EXCEPTIONS:

1. Complex crimes 2. Special Complex crimes3. Continuous crimes or

delicto continuado4. Crimes of which another

offense is an ingredient

Should there be duplicity ofoffense in the information, theaccused must move for thequashal of the same BEFOREarraignment

arraignment, otherwise, he isdeemed to have waived theobjection and maybe foundguilty of as many offenses asthose charged and proved duringthe trial.

Section. 14. Amendment orsubstitution.

KINDS OF AMENDMENT1. BEFORE THE PLEA – covers

both substantial andformal amendment, WITHOUTleave of court.

2. AFTER THE PLEA – coversonly formal amendmentprovided:a) leave of court is

obtainedb) such amendment is not

prejudicial to therights of the accused.

EXCEPT when a factsupervenes which changesthe nature of the crimecharged in theinformation or upgradesit to a higher crime, inwhich case, there is aneed for anotherarraignment of theaccused under the amendedinformation.

An amendment is only in formwhere it neither affects noralters the nature of theoffense charged OR where thecharge does not deprive theaccused of a fair opportunityto present his defense OR whereit does not involve a change inthe basic theory of theprosecution.

Substitution – If it appears atanytime before judgment that amistake has been made incharging the proper offense,the court shall dismiss theoriginal complaint orinformation upon the filing of



MEMORY AID IN REMEDIAL LAWa new one charging the properoffense, provided the accusedshall not be placed in doublejeopardy.

Limitation to the rule onsubstitution:

1. No judgment has yet beenrendered.

2. The accused cannot beconvicted of the offensecharged or of any otheroffense necessarilyincluded therein.

3. The accused would not beplaced in doublejeopardy.

AMENDMENT SUBSTITUTIONOF INFORMATIONOR COMPLAINT

May involveeither formal or

substantialchanges

Involvessubstantial

change from theoriginal charge

Amendment beforethe plea has

been entered canbe effected

without leave ofcourt.

Substitution ofinformation mustbe with leave of

court as theoriginal

information hasto be dismissed.

Amendment isonly as to form,there is no need

for anotherpreliminary

investigationand the retakingof the plea ofthe accused.

Anotherpreliminary

investigation isentailed and theaccused has toplead anew to

the newinformation

An amendedinformation

refers to thesame offense

charged in theoriginal

information orto an offense

which

Requires orpresupposes that

the newinformationinvolves adifferent

offense whichdoes not include

or is not

necessarilyincludes or isnecessarily

included in theoriginal charge,

hencesubstantialamendments tothe informationafter the pleahas been takencannot be made

over theobjection of theaccused, for ifthe originalinformationwould be

withdrawn, theaccused couldinvoke doublejeopardy.

necessarilyincluded in theoriginal charge,

hence theaccused cannotclaim doublejeopardy.

VARIANCE BETWEEN INDICTMENT ANDPROOF (Situations Contemplated)

1. When the offense provedis less serious than, andis necessarily includedin, the offense charged,in which case thedefendant shall beconvicted of the offenseproved.

2. When the offense provedis more serious than andincludes the offensecharged, in which casethe defendant shall beconvicted of the offensecharged.

3. When the offense provedis neither included in,nor does it include, theoffense charged and isdifferent therefrom, inwhich case the courtshould dismiss the actionand order the filing of anew information chargingthe proper offense.




The third situation set forthabove is substitution ofinformation under Section 14,Rule 110.

Section 15. Place where actionis to be instituted.

PURPOSEThe purpose being not to compelthe defendant to move to, andappear in a different courtfrom that of the territorywhere the crime was committed,as it would cause him greatinconvenience in looking forhis witnesses and otherevidence in another place(Beltran vs. Ramos, 96 Phil.149). VENUE IS JURISDICTIONALVenue is jurisdictional as thecourt has no jurisdiction totry an offense committedoutside its territorialjurisdiction. It cannot bewaived, or changed by agreementof the parties, or by theconsent of the defendant.

GENERAL RULE: Subject toexisting laws, in all criminalprosecutions, the action mustbe instituted and tried in thecourts of the municipality orterritory where the offense wascommitted or any of itsessential ingredients occurred.

EXCEPTIONS TO THE RULE OFVENUE:

1. Felonies under Art. 2 ofthe Revised Penal Code Shall be cognizable by

the proper court where

the criminal actionwas first filed.

2. Complex Crimes Where the crime

charged is a complexcrime, the RTC of anyprovince in which anyone of the essentialelements of suchcomplex crime had beencommitted hasjurisdiction to takecognizance of theoffense.

3. Continuing Offense - isone where the elements ofwhich occur in severalplaces, (unlike a LOCALOFFENSE - one which isfully consummated in oneplace) The venue is in the

place where one of itsessential elements wasconsummated.

4. Piracy – The venue ofpiracy, unlike all othercrimes, has noterritorial limits.

5. Libel – The action may beinstituted at theelection of the offendedor suing party in theprovince or city:a) where the libelous

article is printed andfirst published;

b) if one of the offendedparties is a privateindividual, where saidprivate individualactually resides atthe time of thecommission of theoffense;



MEMORY AID IN REMEDIAL LAWc) if the offended party

is a public official,where the latter holdsoffice at the time ofthe commission of theoffense.

6. In exceptionalcircumstances – to ensurea fair trial andimpartial inquiry. The SCshall have the power toorder a change of venueor place of trial toavoid miscarriage ofjustice (Section 5[4],Article VIII, 1987Constitution).

Section 16. Intervention of theoffended party in criminalaction.

GENERAL RULE: Offended partyhas the right to intervene bycounsel in the prosecution ofthe criminal action, where thecivil action for recovery ofcivil liability is institutedin the criminal action pursuantto Rule 111.

EXCEPTIONS:1. Where from the nature of

the crime and the lawdefining and punishingit, NO civil liabilityarises in favor of theoffended party; and

2. Where the offended partyhas waived his right tocivil indemnity OR hasexpressly reserved hisright to institute acivil action OR hasalready instituted saidaction.

RULE 111PROSECUTION OF CIVIL ACTIONS

Section 1. Institution ofcriminal and civil actions.

GENERAL RULE:When a criminal action isinstituted, the civil actionfor the recovery of civilliability arising from theoffense shall be deemedinstituted with the criminalaction. EXCEPTIONS:

1. when the offended partyWAIVES the civil action

2. when the offended partyRESERVES his right toinstitute a separatecivil action

3. when offended partyINSTITUTES A CIVIL ACTIONPRIOR to the criminalaction.

WHEN RESERVATION SHALL BE MADE

1. before the prosecutionstarts to present itsevidence and

2. under circumstancesaffording the offendedparty to a reasonableopportunity to make suchreservation.

ONLY the civil liabilityarising from the crime chargedas a felony is now deemedinstituted. Civil liabilityarising from other sources ofobligations are no longerdeemed instituted like thoseunder Article 32, 33, 34 and2176 of the Civil Code which



MEMORY AID IN REMEDIAL LAWcan be prosecuted even withoutreservation. In BP 22 cases, noreservation to file the civilaction separately shall beallowed.

RULES ON FILING FEES OF CIVILACTION DEEMED INSTITUTED WITHTHE CRIMINAL ACTION

1. NO filing fees arerequired for amounts ofACTUAL DAMAGES, EXCEPTwith respect to criminalactions for violation ofBP 22, in which case, theoffended party shall payin full the filing feesbased on the face valueof the check as theactual damages;

2. Damages other than actual(moral, exemplary andother damages) ifspecified in thecomplaint or information,the corresponding filingfees shall be paid,otherwise the court willnot acquire jurisdictionover such damages;

3. Where moral, exemplaryand other damages are NOTspecified in thecomplaint or information,the grant and amountthereof are left to thesound discretion of thetrial court, thecorresponding filing feesneed not be paid andshall simply constitute afirst lien on thejudgment.

Counterclaims, cross-claims,third party complaints are no

longer allowed in a criminalproceeding. Any claim whichcould have been the subjectthereof may be litigated in aseparate civil action.

Section 2. When separate civilaction is suspended.

PRIMACY OF CRIMINAL ACTION OVERCIVIL ACTION

1. After the filing of thecriminal action, thecivil action which hasbeen reserved CANNOT beinstituted until finaljudgment has beenrendered in the criminalaction.

2. If the civil action isinstituted BEFORE thefiling of the criminalaction and the criminalaction is subsequentlycommenced, the pendingcivil action shall besuspended until finaljudgment in the criminalaction has been rendered.

EXCEPTIONS:a) In cases of independent

civil actions based uponArts. 32, 33, 34 and 2176of the Civil Code;

b) In cases where the civilaction presents aprejudicial question;

c) In cases where the civilaction is consolidatedwith the criminal action;and

d) Where the civil action isnot one intended toenforce the civilliability arising fromthe offense.



MEMORY AID IN REMEDIAL LAWACQUITTAL IN A CRIMINAL CASEDOES NOT BAR THE FILING OF THECIVIL CASE WHERE:

1. the acquittal is based onreasonable doubt, if thecivil case has beenreserved

2. the decision contains adeclaration that theliability of the accusedis not criminal but onlycivil in nature and

3. the civil liability isnot derived from or basedon the criminal act ofwhich the accused isacquitted (Sapiera vs. Courtof Appeals, 314 SCRA 370).

Extinction of the penalaction does not carry with itthe extinction of the civilaction, UNLESS the extinctionproceeds from a declaration ina final judgment that the factfrom which the civil liabilitymight arise did not exist.

The extinction of the civilliability refers exclusively tocivil liability arising fromcrime; whereas, the civilliability for the same actconsidered as a quasi-delict isnot extinguished even by adeclaration in the criminalcase that the criminal actcharged has not happened or hasnot been committed by theaccused.

Where the criminal case wasdismissed before trial becausethe offended party executed anaffidavit of desistance, thecivil action thereof issimilarly dismissed.

Section 3. When civil actionmay proceed independently.

The institution of anindependent civil actionagainst the offender underArticles 32, 33, 34 and 2176 ofthe Civil Code may proceedindependently of the criminalcase and at the same timewithout suspension of eitherproceeding.

Recovery of civil liabilityunder Articles 32, 33, 34 and2176 of the Civil Code arisingfrom the same act or omissionmay be prosecuted separatelyeven without a reservation. Thereservation and waiver hereinrefers only to the civil actionfor the recovery of civilliability arising from theoffense charged (DMPI EmployeesCredit Coop vs. Velez, G.R. No. 129282,Nov. 29, 2001).

PURPOSETo prevent the offended partyfrom recovering damages twicefor the same act or omission.

Section 4. Effect of death oncivil actions.

AFTER arraignment and duringthe pendency of the criminalaction - extinguishes the civilliability arising from thedelict.

BEFORE arraignment - the caseshall be DSMISSED withoutprejudice to any civil actionthe offended party may file



MEMORY AID IN REMEDIAL LAWagainst the estate of thedeceased.

However, the independentcivil action instituted underSection 3 of this Rule or whichthereafter is instituted toenforce liability arising fromother sources of obligation maybe continued against the estateor legal representative of theaccused after propersubstitution or against saidestate, as the case may be.

Section 7. Elements ofprejudicial question.

Prejudicial Question - thatwhich arises in a case, theresolution of which is thelogical antecedent of the issueinvolved therein, and thecognizance of which pertains toanother tribunal. It must bedeterminative of the casebefore the court but thejurisdiction to try and resolvethe question must be lodged inanother court or tribunal.

Rationale: to avoid twoconflicting decisions.

ELEMENTS OF A PREJUDICIALQUESTION1. The civil action must be

instituted prior to thecriminal action.

2. The civil action involvesan issue similar orintimately related to theissue raised in thecriminal action.

3. The resolution of such issue determines whether

or not the criminal action may proceed.

WHERE TO FILE PETITION FORSUSPENSION BY REASON OFPREJUDICIAL QUESTION

1. Office of the prosecutor;or

2. court conducting thepreliminaryinvestigation; or

3. court where the criminalaction has been filed fortrial at any time beforethe prosecution rests.

RULE 112PRELIMINARY INVESTIGATION

Section 1. PreliminaryInvestigation defined; whenrequired.

Preliminary Investigation - isan inquiry or proceeding todetermine whether there existssufficient ground to engender awell-founded belief that acrime has been committed andthat the respondent is probablyguilty thereof, and should beheld for trial. (Sec. 1, Rule112)

Preliminary Investigation isrequired to be conducted BEFOREthe filing of a complaint orinformation for an offensewhere the penalty prescribed bylaw is at least 4 years, 2months and 1 day without regardto the fine.

There is NO right ofpreliminary investigation underSection 7, Rule 112 when a



MEMORY AID IN REMEDIAL LAWperson is LAWFULLY arrestedunless there is a waiver of theprovisions of Article 125 ofthe Revised Penal Code. HOWEVER, the accused can askfor Preliminary Investigationin the following cases:

1. if a person is arrested,he can ask forpreliminary investigationBEFORE the filing of thecomplaint/information BUThe must sign a waiver inaccordance with Article125, RPC.

2. AFTER the filing of theinformation/complaint,the accused may, within 5days from the time helearns of its filing askfor preliminaryinvestigation.

PURPOSES1. to determine whether a

crime has been committedand whether there isprobable cause to believethat the accused isguilty thereof;

2. to preserve evidence andkeep the witnesses withinthe control of the State;

3. to determine the amountof bail, if the offenseis bailable.

PRELIMINARY INVESTIGATION:PERSONAL STATUTORY RIGHT The right to preliminaryinvestigation is a personalright covered by statute andmay be waived expressly or byimplication.

Absence of preliminaryinvestigation does not affectthe jurisdiction of the courtor invalidate the informationif no objection was raised bythe accused.

REMEDIES OF THE ACCUSED IFTHERE WAS NO PRELIMINARYINVESTIGATION

1. Refuse to enter a pleaupon arraignment andobject to furtherproceedings upon suchground

2. Insist on a preliminaryinvestigation

3. File a certiorari, ifrefused

4. Raise lack of preliminaryinvestigation as error onappeal

5. File for prohibition

As preliminary investigation isNOT a part of the trial, thedismissal of the case by theinvestigator will notconstitute double jeopardy andwill not bar the filing ofanother complaint for the sameoffense, but if re-filed, theaccused is entitled to anotherpreliminary investigation (U.S.vs. Marfori, 35 Phil. 666).

Section 2. Officers authorizedto conduct preliminaryinvestigation.

PERSONS AUTHORIZED TO CONDUCT APRELIMINARY INVESTIGATION

1. Provincial or city fiscaland their assistants

2. Judges of the MTC andMCTC



MEMORY AID IN REMEDIAL LAW3. National and regional

state prosecutors4. Such other officers as

may be authorized by lawsuch as: the COMELEC,Ombudsman and PCGG

Section 3. Procedure

If respondent cannot besubpoenaed, or if subpoenaedbut does not submit hiscounter-affidavit within 10days, investigating officershall resolve the complaintbased on the evidence presentedby the complainant.

RIGHTS OF RESPONDENT IN APRELIMINARY INVESTIGATION

1. to submit counter-affidavits

2. to examine evidencesubmitted by thecomplainant

3. to be present in theclarificatory hearing.

The Rules do not require thepresence of the respondent inthe Preliminary Investigation,what is required is that he begiven the opportunity tocontrovert the evidence of thecomplainant by submittingcounter-affidavits.

Section 6. When warrant ofarrest may issueProbable Cause - presupposes areasonable ground for belief inthe existence of factswarranting the proceedingscomplained of;


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

counter-affidavits or from the expiration of the

period of their submission.Resolution of

investigating prosecutor (Sec. 4

& 5).

Filing of the complaint accompanied by the

affidavits and supporting documents.

Within 10 days after the filing, the investigating

officer shall either dismiss or issue subpoena.If subpoena is issued, respondent shall submit a counter-affidavit and

other supporting documents within 10 days from receipt thereof.


MEMORY AID IN REMEDIAL LAW - an

apparent state of facts foundto exist upon reasonableinquiry which would induce areasonably intelligent andprudent man to believe that theaccused person had committedthe crime charged.

If the judge finds probablecause, he shall issue a warrantof arrest, or a commitmentorder if the accused hadalready been arrested and holdhim for trial. If the judge issatisfied that there is nonecessity for placing theaccused under custody, he mayissue summons instead ofwarrant of arrest.

The RTC judge need NOTpersonally examine thecomplaint and witnesses in thedetermination of probable causefor the issuance of the warrantof arrest. He is only requiredto:

1. Personally evaluate thereport and the supportingdocuments submittedduring the preliminaryinvestigation by thefiscal; and

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

affidavits.

INSTANCES WHEN MTC MAY CONDUCTPRELIMINARY INVESTIGATION:

1. cases cognizable by theRTC may be filed with theMTC for preliminaryinvestigation;

2. cases cognizable by theMTC because it is anoffense where the penaltyprescribed by law is atleast four (4) years, two(2) months and one (1)day without regard to thefine.

In either situation, the MTCis authorized to issue awarrant of arrest if there isnecessity of placing therespondent under immediatecustody, in order not tofrustrate the ends of justice.

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

1. Have examined in writingand under oath thecomplainant and hiswitnesses by searchingquestions and answers;searching questions andanswers – such questionsas may have the tendencyto show the commission ofthe crime and theperpetrator thereof;

2. Be satisfied that aprobable cause exists;and

3. That there is a need toplace the respondentunder immediate custodyin order not to frustratethe ends of justice.

If the MTC judge foundprobable cause but did notbelieve that the aforesaidconditions were met, he cannotbe compelled by mandamus toissue the same.



MEMORY AID IN REMEDIAL LAWREMEDY: The provincial fiscal,if he believes that the accusedshould be immediately placed incustody, may file thecorresponding information sothat the RTC may issue thenecessary warrant of arrest(Samulde vs. Salvani, Jr., G.R. No. 78606,Sept. 26, 1988).

While the judge may rely on thefiscal’s certification thereof,the same is NOT conclusive onhim as the issuance of saidwarrant calls for the exerciseof judicial discretion and, forthat purpose, the judge mayrequire the submission ofaffidavits of witnesses to aidhim in arriving at the properconclusion, OR he may requirethe fiscal to conduct furtherpreliminary investigation orreinvestigation.

INSTANCES WHEN WARRANT OFARREST NOT NECESSARY

1. if the accused is alreadyunder detention;

2. if the complaint or information was filed after the accused was lawfully arrested withoutwarrant;

3. if the offense is punishable by fine only.

Section 7. When accusedlawfully arrested withoutwarrant.

TWO SITUATIONS CONTEMPLATEDUNDER THIS RULE:

1. When a person is lawfullyarrested without awarrant for an offenserequiring a preliminary

investigation (sec. 1,Rule 112) and nocomplaint or informationhas yet been filed, hemay ask for a preliminaryinvestigation by signinga waiver of theprovisions of Art. 125 ofthe RPC in the presenceof his counsel.

2. When the complaint orinformation was filedwithout preliminaryinvestigation, theaccused may, within 5days from the time helearns of the filing ofthe information, ask fora preliminaryinvestigation with thesame right to adduceevidence in his favor inthe manner prescribed inthis Rule.

The 5-day period is MANDATORY,failure to file the motionwithin the said period amountsto waiver of the right to askfor preliminary investigation.

Where the information wasamended without a newpreliminary investigationhaving been conducted, the 5-day period is computed from thetime the accused learns of thefiling of said amendedinformation. Where the trial court hasgranted a motion forreinvestigation, it must holdin abeyance the arraignment andtrial of the the accused until theprosecutor shall have conducted



MEMORY AID IN REMEDIAL LAWand made a report on the resultof such reinvestigation.

The right to bail pendingPreliminary Investigation underSection 7, Rule 112, a personlawfully arrested may post bailbefore the filing of theinformation or even after itsfiling without waiving hisright to preliminaryinvestigation, provided that heasks for a preliminaryinvestigation by the properofficer within the period fixedin the said rule (People vs. Courtof Appeals, May 29, 1995).

Section 8. Records

Records of the preliminaryinvestigation shall NOTautomatically form part of therecords of the case. Courts arenot compelled to take judicialnotice thereof. It must beintroduced as an evidence.

Section 9. Cases not requiringa preliminary investigation norcovered by the Rule on SummaryProcedure.

PROCEDURE TO BE FOLLOWED INCASES WHICH DO NOT REQUIREPRELIMINARY INVESTIGATION

1. Evaluate the evidencepresented

2. Conduct searchingquestions or answers

3. Require the submission ofadditional evidence

For cases under the RevisedRules on Summary Procedure, nowarrant shall be issued except

where the accused fails toappear after being summoned.

If the complaint is filed withthe prosecutor involving anoffense punishable byimprisonment of less than 4years, 2 months and 1 day, theprocedure in Rule 112, Section3 (a) shall be observed.

If the complaint is filed withthe MTC, the same procedureunder Rule 112, Section 3 (a)shall be observed.

RULE 113ARREST

Section 1. Definition ofarrest.

Arrest – the taking of a personinto custody in order that hemay be bound to answer for thecommission of an offense (Sec.1 Rule 113).

Modes of Arrest1. arrest by virtue of a

warrant2. arrest without a warrant

under exceptionalcircumstances as may beprovided by statute (Sec.5, Rule 113).

ESSENTIAL REQUISITES OF A VALIDWARRANT OF ARREST

1. It must be issued uponprobable cause which mustbe determined personallyby a judge afterexamination under oath oraffirmation of thecomplainant and thewitnesses he may produce



MEMORY AID IN REMEDIAL LAW2. The warrant must

particularly describe theperson to be seized

A warrant of arrest has NOexpiry date. It remains validuntil arrest is effected orwarrant is lifted.

REMEDY FOR WARRANTS IMPROPERLYISSUEDWhere a warrant of arrest wasimproperly issued, the properremedy is a petition to quashit, NOT a petition for habeascorpus, since the court in thelatter case may only order hisrelease but not enjoin thefurther prosecution or thepreliminary examination of theaccused (Alimpoos vs. Court ofAppeals, 106 SCRA 159).

Posting of bail does not barone from questioning illegalarrest (Section 26, Rule 114,Rules of Court).

Section 2. Arrest; how made.

MODES OF EFFECTING ARREST1. By an actual restraint of

the person to bearrested.

2. By his submission to thecustody of the personmaking the arrest.

Upon arrest, the following maybe confiscated from the personarrested:

1. Objects subject of theoffense or used orintended to be used inthe commission of thecrime;

2. Objects which are thefruits of the crime;

3. Those which might be usedby the arrested person tocommit violence or toescape;

4. Dangerous weapons andthose which may be usedas evidence in the case.

Section 5. Arrest withoutwarrant; when lawful

LAWFUL WARRANTLESS ARREST1. When, IN HIS PRESENCE,

the person to be arrestedhas committed, isactually committing, oris attempting to commitan offense (in flagrantedelicto arrests);

2. When an offense has infact just been committed,and he has probable causeto believe based onPERSONAL KNOWLEDGE offact and circumstancethat the person to bearrested has committedit; (Doctrine of HotPursuit)

3. When the person to bearrested is a prisonerwho has escaped from apenal establishment orplace where he is servingfinal judgment ortemporarily confinedwhile his case ispending, or has escapedwhile being transferredfrom one confinement toanother.

4. Where a person who hasbeen lawfully arrestedescapes or is rescued(Sec. 13, Rule 113);



MEMORY AID IN REMEDIAL LAW5. By the bondsman for the

purpose of surrenderingthe accused (Sec. 23,Rule 114); and

6. Where the accusedattempts to leave thecountry withoutpermission of the court(Sec. 23, Rule 114).

If the arrest was effectedwithout warrant, the arrestingofficer must comply with theprovisions of Art. 125 of theRPC, otherwise, he may be heldcriminally liable for arbitrarydetention under Article 124 ofthe RPC.

RULES ON ILLEGALITY OF ARREST1. An accused who enters his

plea of NOT guilty andparticipates in the trialwaives the illegality ofthe arrest. Objection tothe illegality must beraised beforearraignment, otherwise itis deemed waived, as theaccused, in this case,has voluntarily submittedhimself to thejurisdiction of thecourt.

2. Illegality of warrantlessarrest maybe cured byfiling of an informationin court and thesubsequent issuance bythe judge of a warrant ofarrest.

3. Once a person has beenduly charged in court, hemay no longer questionhis detention by petitionfor habeas corpus, hisremedy is to quash the

information and/or thewarrant of arrest.

Section 6. Time of makingarrest.

Unlike a search warrant whichmust be served only in daytime,an arrest may be made on anyday and at any time of the dayor night, even on a Sunday.This is justified by thenecessity of preserving thepublic peace.

Section 7. Method of arrest ofofficer by virtue of warrant.

Under this rule, an arrest maybe made even if the policeofficer is not in possession ofthe warrant of arrest (Mallarivs. Court of Appeals, 265 SCRA456). Exhibition of the warrantprior to the arrest is notnecessary. However, if afterthe arrest, the person arrestedso requires, the warrant shallbe shown to him as soon aspracticable.

Section 8. Method of arrest byofficer without warrant.

Section 9. Method of arrest byprivate person.

Citizen’s arrest - arresteffected by a private person.

Method ofarrest

Exceptionto therule ongiving

information

Sec. The officer 1. when REMEDIAL LAW COMMITTEE CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS : Martessa Nuylan,CharissimaeVentura, Jocelyn Zabala SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (SpecialCivil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)


MEMORY AID IN REMEDIAL LAW7 shall

inform theperson to

be arrestedthe causeof the

arrest andthe factthat the

warrant hasbeen issued

for hisarrest.

Note: Theofficerneed nothave thewarrant inhispossessionat the timeof thearrest BUTmust showthe sameafter thearrest, ifthe personarrested sorequires.

the person to be arrested flees;2. when he forcibly resists before the officer hasan opportunityto inform him; and

3. when thegiving of such informationwill imperil thearrest.

Sec.8

The officershall

inform theperson to

be arrestedof his

authorityand thecause ofthe arrestw/out awarrant

1. when theperson to be arrestedis engaged in the commission of an offense or is pursued immediatelyits commission;2. when he has escaped, flees, or forcibly resists before the officer hasan

opportunityto so inform him;and3. when thegiving ofsuchinformationwillimperil thearrest.

Sec.9

The privatepersonshall

inform theperson tobe arrested

of theintentionto arresthim and thecause of

the arrest.

Note:Privateperson mustdeliver thearrestedperson tothe nearestpolicestation orjail,otherwise,he may beheldcriminallyliable forillegaldetention.

1. when theperson to be arrestedis engaged in the commission of an offense or is pursued immediatelyits commission;2. when he has escaped, flees, or forcibly resists before the officer hasan opportunityto so inform him;and3. when thegiving of such informationwill imperil thearrest.

Section 10. Officer may summonassistance.

Only an officer making thearrest is governed by the rule.It does not cover a privateindividual making an arrest.




Section 11. Right of officer tobreak into building orenclosure.

Requisites before an officercan break into a building orenclosure to make an arrest:

1. That the person to bearrested is or isreasonably believed to bein said building;

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

3. That he has requested andbeen denied admittance.

Generally, a lawful arrest maybe made anywhere, even onprivate property or in a house.This rule is applicable bothwhere the arrest is under awarrant, and where there isvalid warrantless arrest.

Section 12. Right to break outof the building or enclosure toeffect release.

A private person making anarrest CANNOT break in or outof a building or enclosurebecause only officers areallowed by law to do so.

Section 13. Arrest after escapeor rescue.

Where a person lawfullyarrested escapes or is rescued,any person may immediatelypursue or retake him without awarrant at any time and in anyplace within the country. Thepursuit must be immediate.

Section 14. Right of Attorneyor relative to visit personarrested.

RA 7438 defined certain rightsof persons arrested, detained,or under custodialinvestigation, with thepenalties for violationsthereof.

RULE 114BAIL

Section 1. Bail defined.

Bail -- the security given forthe release of a person incustody of the law, furnishedby him or a bondsman,conditioned upon his appearancebefore any court as requiredunder the conditions specifiedby the rule (Sec. 1, Rule 114).

A person is in the custody oflaw when he has been eitherarrested or otherwise deprivedof his freedom or when he hasvoluntarily submitted himselfto the jurisdiction of thecourt by surrendering to theproper authorities.

All persons, except thosecharged with offensespunishable by reclusionperpetua when evidence of guiltis strong, shall, beforeconviction, be bailable bysufficient sureties, or bereleased on recognizance as maybe provided by law (Section 13,



MEMORY AID IN REMEDIAL LAWArticle III, 1987Constitution).

Forms of bail:1. corporate surety2. property bond3. cash deposit4. recognizance

BAILBOND RECOGNIZANCEAn obligation

under seal givenby the accused

with one or moresureties, and

made payable tothe proper

officer with thecondition to be

void uponperformance bythe accused ofsuch acts as hemay legally berequired toperform

an obligation ofrecord, enteredinto before some

court ormagistrate dulyauthorized totake it, with

the condition todo some

particular act;

Prosecution witnesses may alsobe required to post bail toensure their appearance at thetrial of the case where:

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

2. where the court believesthat a material witnessmay not appear at thetrial (Sec. 14, Rule119).

Section 2. Conditions of thebail; requirements.

CONDITIONS OF BAIL1. The undertaking shall be

effective upon approval,and, unless cancelled,shall remain in force atall stages of the case

until promulgation of thejudgment of the RTC,irrespective of whetherthe case was originallyfiled in or appealed toit;

2. The accused shall appearbefore the proper courtswhenever so required bythe court or these Rules;

3. The failure of theaccused to appear at thetrial withoutjustification despite duenotice shall be deemed awaiver of his right to bepresent thereat. In suchcase, the trial mayproceed in absentia;

4. The bondsman shallsurrender the accused tocourt for execution ofthe final judgment.

No additional conditions can beimposed.

A detention prisoner whoescaped waives his right tocross-examination (Jimenez v.Nazareno).

By filing a fake bail bond, anappellant is deemed to haveescaped from confinement duringthe pendency of his appeal andin the normal course of things,his appeal should be dismissed.

No release or transfer excepton court order or bail.No person under detention bylegal process shall be releasedor transferred except uponorder of the court or when heis admitted to bail (Sec. 3).



MEMORY AID IN REMEDIAL LAWSection 4. Bail, a matter ofright; exception.

When a matter of right:1. before or after

conviction in the lowercourts; AND

2. before conviction by theRTC, EXCEPT when theimposable penalty isdeath, reclusion perpetuaor life imprisonment andevidence of guilt isstrong.

In instances where bail is amatter of right and the bail tobe granted is based on therecommendation of theprosecution as stated in theinformation or complaint, ahearing is NOT necessary.

But where, however, there is areduction of bail asrecommended or after convictionby the RTC of an offense notpunishable by death, reclusionperpetua, or life imprisonmentwherein the grant of bail isdiscretionary, there must be ahearing before a bail isgranted in order to afford theprosecution the chance tooppose it (Bangayan vs. Butacan,345 SCRA 301).

The prosecution cannot adduceevidence for the denial of bailwhere it is a matter of right.However, where the grant ofbail is discretionary, theprosecution may show proof todeny the bail.

An extraditee is not entitledto bail. The Constitutional

provision on Bail as well asSec. 4 of Rule 114 applies onlywhen a person has been arrestedand detained for violation ofPhilippine Criminal laws. Itdoes not apply to extraditionproceedings because extraditioncourts do not render judgmentsof conviction or acquittal(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 bail shall be allowedif the accused is chargedwith a capital offense oran offense punishable byreclusion perpetua ANDthe evidence of guilt isstrong (Sec. 7);

2. Before and afterconviction by the MTC,Municipal Trial Court orMCTC, bail is a matter ofright (Sec.4).

3. Before conviction by theRTC whether in theexercise of its originalor appellatejurisdiction, bail is amatter of right. (Sec.4)

4. Upon conviction by theRTC of an offense notpunishable by death,reclusion perpetua orlife imprisonment,admission to bail isdiscretionary (Sec. 5);

5. After conviction by theRTC wherein a penalty ofimprisonment exceeding 6but not more than 20



MEMORY AID IN REMEDIAL LAWyears is imposed, and notone of the circumstancesbelow is present andproved, bail is a matterof discretion (Sec.5).a) Recidivism, quasi-

recidivism or habitualdelinquency orcommission of crimeaggravated by thecircumstances ofreiteration.

b) Previous escape from legal confinement, evasion of sentence orviolation of the conditions of bail without valid justification.

c) Commission of theoffense while onprobation, parole orunder conditionalpardon

d) Circumstance of theaccused or his caseindicates theprobability of flightif released on bail

e) Undue risk ofcommission of anothercrime by the accusedduring pendency ofappeal.

6. After conviction by theRTC imposing a penalty ofimprisonment exceeding 6years but not more than20 years and any of thecircumstance enumeratedabove and other similarcircumstance is presentand proved, no bail shallbe granted (Sec.5);

7. After judgment has becomefinal unless accusedapplied for probation

before commencing toserve sentence of penaltyand offense withinpurview of probation law(Sec. 24).

Section 6. Capital Offense,defined.

Capital Offense – is an offensewhich, under the law existingat the time of its commissionAND at the time of theapplication to be admitted tobail, may be punished withdeath.

If the law at the time ofcommission does not impose thedeath penalty, the subsequentamendment of the law increasingthe penalty cannot apply to thecase, otherwise it would be expost facto, and penalties aredetermined by the law at thetime of the commission of theoffense.

If the law at the time of theapplication for bail hasamended the prior law whichimposed the death penalty byreducing such penalty, suchfavorable law generally has aretroactive effect.

Section 7. Capital Offense notbailable.

Capital offense or thosepunishable by reclusionperpetua, life imprisonment ordeath are NOT BAILABLE whenevidence of guilt is strong.EXCEPTION: If the accusedcharged with a capital offenseis a minor.




Section 8. Burden of proof inbail application.

The hearing should be summaryor otherwise in the discretionof the court but the right ofthe prosecution to control thequantum of evidence and theorder of presentation ofwitnesses must be equated withthe purpose of the hearing – todetermine the bailability ofthe accused.

The burden of proving that theevidence of guilt is stronglies within the fence of theprosecution. (Comia vs. Antona, 337SCRA 656)

Evidence of guilt is strongwhen proof is evident or thepresumption of guilt is strong.The test is NOT whether theevidence establishes guiltbeyond reasonable doubt butrather whether it shows

shows evident guilt or a greatpresumption of guilt.

Section 9. Amount of bail;guidelines.FACTORS TO BE CONSIDERED INFIXING THE REASONABLE AMOUNT OFBAIL (NOT EXCLUSIVE)

1. Financial ability of theaccused to give bail;

2. Nature and circumstancesof the offense;

3. Penalty for the offensecharged;

4. Character and reputationof the accused;

5. Age and health of theaccused;

6. Weight of evidenceagainst the accused;

7. Probability of theaccused appearing at thetrial;

8. Forfeiture of other bail;9. The fact that the accused

was a fugitive fromjustice when arrested;and

10. Pendency of othercases when the accused ison bail

Bail must not be in aprohibitory amount. Excessivebail is not to be required forthe purpose of preventing theaccused from being admitted tobail.

Section 11. Property, howposted.

Property Bond – is anundertaking constituted as alien on the real property givenas security for the amount ofthe bail (sec11);

It is required that theannotation of a lien on theland records of the propertyposted as bail, otherwise theproperty bail bond shall becancelled.

Section 12. Qualifications ofsureties in property bond.Philippine residency isrequired of a propertybondsman. The reason for thisis that bondsmen in criminalcases, residing outside of thePhilippines, are not within thereach of the processes of its



MEMORY AID IN REMEDIAL LAWcourts (Villaseñor vs. Abano, 21 SCRA312).

Section 13. Justification ofsureties.

The purpose of the rulerequiring the affidavit ofqualification by the suretybefore the judge, is to enablethe latter to determine whetheror not the surety possesses thequalification to act as such,especially his financial worth.

The justification being underoath, any falsity introducedthereto by the surety upon amatter of significance wouldrender him liable for perjury.

Section 14. Deposit of cash asbail.

EFFECT OF DEPOSITING CASH ASBAILAccused shall be dischargedfrom custody as it isconsidered as bail.

Section 15. Recognizance

Recognizance - an obligation ofrecord, entered into beforesome court or officerauthorized to take it with acondition to do some particularact and the accused is oftenallowed to obligate himself toanswer the charge.

Section 16. Bail when notrequired; reduced bail onrecognizance.

Instances wherein the accusedmay be released onrecognizance, without puttingbail or on reduced bail:

CAN BERELEASEDWITHOUT BAIL

1. Offensecharged isviolation of anordinance, lightfelony or acriminaloffense, theimposablepenaltywherefore doesnot exceed 6months ofimprisonmentand/or fine of P2,000 underR.A.6036.

2. Where theaccused hasapplied forprobation andbefore the samehas beenresolved but nobail was filedor the accusedis incapable offiling one, inwhich case hemay be releasedon recognizance

3. In case of ayouthfuloffender heldfor physical ormentalexamination,trial or appeal,if unable tofurnish bail andunder thecircumstancesunder PD 603, asamended



MEMORY AID IN REMEDIAL LAWON REDUCEDBAIL OR ONHIS OWNRECOGNIZANCE

A person incustody for aperiod equal to ormore than theminimum of theprincipal penaltyprescribed for theoffense charged,withoutapplication of theindeterminatesentence law orany modifyingcircumstance shallbe released onreduced bail or onhis ownrecognizance.

UNDER THEREVISEDRULES ONSUMMARYPROCEDURE

General Rule: nobailException:1. When a warrantof arrest isissued for failureto appear whenrequired by thecourt2. When theaccused- is arecidivist;- is a fugitivefrom justice;- is charged withphysicalinjuries- does not residein the placewhere theviolation of thelaw or ordinanceis committed; or-has not residein the placewhere theviolation of thelaw or ordinanceis committed; or-has no knownresidence

Section 17. Bail, where filed.

1. May be filed with thecourt where the case ispending, or in theabsence or unavailabilityof the judge thereof,with another branch ofthe same court within theprovince or city.

2. Whenever the grant ofbail is a matter ofdiscretion, or theaccused seeks to bereleased on recognizance,

3. the application thereformay be filed only in theparticular court wherethe case is pending,whether for preliminaryinvestigation, trial orappeal.

4. Any person in custody whois not yet charged incourt may apply for bailwith any court in theprovince, city ormunicipality where he isheld.

Section 18. Notice ofapplication to prosecutor.Such notice is necessarybecause the burden of provingthat the evidence of guilt isstrong is on the prosecutionand that the discretion of thecourt in admitting the accusedto bail can only be exercisedafter the fiscal has been heardregarding the nature of theevidence in his possession.(People vs. Raba, 130 Phil. 384)

Section 19. Release on bail.

Once the accused has beenadmitted to bail, h is entitledto immediate release from



MEMORY AID IN REMEDIAL LAWcustody. An officer who failsor refuses to release him fromdetention notwithstanding theapproval by the proper court ofhis bailbond, may be heldliable under Article 126 of theRevised Penal Code for delayingrelease.

Section 20. Increase orreduction of bail.

The guidelines provided for inSection 9, Rule 114, in fixingthe amount of bail are alsoapplicable in reducing orincreasing the bail previouslyfixed.

Where the offense is bailableas a matter of right, the mereprobability that the accusedwill escape, or even if he hadpreviously escaped while underdetention, does not deprive himof his right to bail. Theremedy is to increase theamount of the bail, providedsuch amount would not beexcessive. (Sy Guan vs. Amparo, 79Phil. 670)

Section 21. Forfeiture ofbail.

Within 30 days from the failureof the accused to appear inperson as required, thebondsmen must:

A. PRODUCE the body of theirprincipal or give thereason for his non-production; AND

B. EXPLAIN why the accuseddid not appear before thecourt when first requiredto do so.

The 30-day period granted tothe bondsmen to comply with thetwo requisites for the liftingof the order of forfeiturecannot be shortened by thecourt but may be extended forgood cause shown..ORDER OF FORFEITURE VS. ORDEROF CONFISCATION

1. an ORDER OF FORFEITURE isconditional andinterlocutory, therebeing something more tobe done such as theproduction of the accusedwithin 30 days asprovided by the rules anorder of forfeiture isnot appealable

2. an ORDER OF CONFISCATIONis not independent of theorder of the order offorfeiture. It is ajudgment ultimatelydetermining the liabilityof the surety thereunder,and therefore final andexecution may issue atonce.

Section 22. Cancellation ofbailbond.

INSTANCES WHEN BAIL BOND CAN BECANCELLED

1. upon application by thebondsman with notice tothe fiscal and uponsurrender of the accused;and

2. upon proof that theaccused died.

The bail bond is automaticallycancelled upon the acquittal of



MEMORY AID IN REMEDIAL LAWthe accused or dismissal of thecase or execution of the finalorder of conviction, withoutprejudice to any liability onthe bond incurred prior totheir discharge.

METHODS BY WHICH SURETIES MAYRELIEVE THEMSELVES FROMRESPONSIBILITIES

a. Arrest the principal anddeliver him to the properauthorities;

b. They may cause his arrestto be made by any policeofficer or other personof suitable age ordiscretion; or

c. By endorsing theauthority to arrest upona certified copy of theundertaking anddelivering it to suchofficer or person

Section 23. Arrest of accusedout on bail.

An accused released on bail maybe re-arrested without awarrant if he attempts todepart from the Philippineswithout prior permission of thecourt where the case ispending.

Section 24. No bail afterfinal judgment; exception.

GENERAL RULE: The finality ofthe judgment terminates thecriminal proceeding. Bailbecomes of no avail. Thejudgment contemplated is ajudgment of conviction. Thejudgment is final if the

accused does not appeal theconviction.

No bail shall be granted afterjudgment, if the case hasbecome final even if continuedconfinement of the accusedwould be detrimental ordangerous to his health. Theremedy would be to submit himto medical treatment orhospitalization.

EXCEPTION: If the accusedapplies for probation he may beallowed temporary liberty underhis existing bail bond, or ifno bail was filed, or isincapable of filing one, he maybe released on recognizance tothe custody of a responsiblemember of the community

The application for probationmust be filed within the periodof perfecting an appeal. Suchfiling operates as a waiver ofthe right to appeal. Theaccused in the meantime, isentitled to be released on bailor recognizance. (Sec. 4, PD968, as amended)

Section 25. Court supervisionof detainees.

The employment of physical,psychological or degradingpunishment against any prisoneror detainee or the use ofsubstandard or inadequate penalfacilities under subhumanconditions shall be dealt withby law (Section 19(2), ArticleIII, 1987 Constitution).




Section 26. Bail not a bar toobjection on illegal arrest,lack of or irregularpreliminary investigation.

AN APPLICATION FOR OR ADMISSIONTO BAIL SHALL NOT BAR THEACCUSED

a. from challenging thevalidity of his arrest OR

b. legality of the warrantissued therefore, OR

c. from assailing theregularity or questioningthe absence ofpreliminary investigationof the charge againsthim, PROVIDED, he raisesthem before entering hisplea.

RULE 115RIGHTS OF THE ACCUSED

This rule enumerates the rightsof a person accused of anoffense, which are bothconstitutional as well asstatutory, save the right toappeal, which is purelystatutory in character.

Section 1. Rights of theaccused at the trial.

A. TO BE PRESUMED INNOCENTIn all criminal prosecutions,the accused is presumedinnocent until the contrary isproved beyond reasonable doubt.

Reasonable Doubt is that doubtengendered by an investigationof the whole proof and aninability, after suchinvestigation, to let the mind

rest easy upon the certainty ofguilt. Absolute certainty ofguilt is not demanded by thelaw to convict of any criminalcharge but moral certainty isrequired, and this certainty isrequired as to everyproposition of proof requisiteto constitute the offense.

Equipoise rule – where theevidence of the parties in acriminal case are evenlybalanced, the constitutionalpresumption of innocence shouldtilt in favor of the accusedand must be acquitted.

B. TO BE INFORMED OF THE NATUREAND THE CAUSE OF THE ACCUSATIONAGAINST HIM.An accused cannot be convictedof an offense unless it isclearly charged in thecomplaint or information. Toconvict him of an offense otherthan that charged in thecomplaint or information wouldbe a violation of thisconstitutional right (People vs.Ortega, 276 SCRA 166).

When a person is charged in acomplaint with a crime and theevidence does not show that heis guilty thereof, but doesshow that he is guilty of someother crime or a lesseroffense, the court may sentencee him for the lesser offense,PROVIDED the lesser offense isa cognate offense and isincluded in the complaint withthe court.



MEMORY AID IN REMEDIAL LAWC. 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 theconviction is for a lightoffense, in which case,it may be pronounced inthe presence of hiscounsel or arepresentative

3. When ordered by the courtfor purposes ofidentification

Not applicable in SC and CA -The law securing to an accusedperson the right to be presentat every stage of theproceedings has no applicationto the proceedings before theCourt of Appeals and theSupreme Court nor to the entryand promulgation of theirjudgments The defendant neednot be present in court duringthe hearing of the appeal.(Sec. 9 Rule 124)

Accused may waive his right tobe present during the trial.HOWEVER, his presence may becompelled when he is to beidentified. (Aquino, Jr. vs. MilitaryCommission, 63 SCRA 546)

EFFECTS OF WAIVER OF THE RIGHTTO APPEAR BY THE ACCUSED

1. waiver of the right topresent evidence;

2. prosecution can presentevidence if accused failsto appear;

3. the court can decidewithout accused’sevidence.

TRIAL IN ABSENTIAIt is important to state thatthe provision of theConstitution authorizing thetrial in absentia of theaccused in case of his non-appearance AFTER ARRAIGNMENTdespite due notice simply meansthat he thereby waives hisright to meet the witnessesface to face among others.

Such waiver of a right of theaccused does not mean a releaseof the accused from hisobligation under the bond toappear in court whenever sorequired. The accused may waivehis right but not his duty orobligation to the court.

REQUIREMENTS FOR TRIAL INABSENTIA

1. accused has beenarraigned

2. he has been duly notifiedof the trial

3. his failure to appear isunjustified

An escapee who has been dulytried in absentia waives hisright to present evidence onhis own behalf and to confrontand cross-examine witnesses whotestified against him. (Gimenezvs. Nazareno, 160 SCRA 1)



MEMORY AID IN REMEDIAL LAWD. RIGHT TO COUNSEL The right covers the periodbeginning from custodialinvestigation, well into therendition of the judgment andeven on appeal. (People vs. Serzo,Jr., 274 SCRA 553)

If during the investigation theassisting lawyer left, or comeand go, the statement signed bythe accused is stillinadmissible because the lawyershould assist his client fromthe time the confessant answersthe first question asked by theinvestigating officer until thesigning of the extrajudicialconfession. (People vs. Morial, 363SCRA 96)

The right to counsel and theright to remain silent do notcease even after a criminalcomplaint/information hasalready been filed against theaccused, AS LONG AS he is stillin custody.

The duty of the court toappoint a counsel de oficiowhen the accused has no legalcounsel of choice and desiresto employ the services of oneis MANDATORY only at the timeof arraignment. (Sec. 6 Rule116)

E. TO TESTIFY AS WITNESS IN HISOWN BEHALFA denial of the defendant’sright to testify in his behalfwould constitute anunjustifiable violation of hisconstitutional right. (People vs.Santiago, 46 Phil. 734)

If the accused testifies, hemay be cross-examined but ONLYon matters covered by hisdirect examination, unlike anordinary witness who can becross-examined as to any matterstated in the directexamination or connectedtherewith (Section 6, Rule132). His failure to testify isnot taken against him butfailure to produce evidence inhis behalf is consideredagainst him (U.S. vs. Bay, 97 Phil.495).

F. RIGHT AGAINST SELF-INCRIMINATION

The accused is protected underthis rule from questions whichtend to incriminate him, thatis, which may subject him topenal liability.

The right may be waived by thefailure of the accused toinvoke the privilege at theproper time, that is, AFTER theincriminating question is askedand before his answer;

The privilege of the accused tobe exempt from testifying as awitness involves a prohibitionagainst testimonial compulsiononly and the production by theaccused of incriminatingdocuments, and articlesdemanded from him. (U.S. vs. TanTeng, 23 Phil. 145)

EXCEPTIONS: immunity statutessuch as:

1. RA 1379 – Forfeiture ofIllegally obtained wealth

2. RA 749 – Bribery andGraft cases




RIGHT OF THE ACCUSED AGAINSTSELF-INCRIMINATION VS. RIGHT OFTHAT OF AN ORDINARY WITNESSThe ordinary witness may becompelled to take the witnessstand and claim the privilegeas each question requiring anincriminating answer is shot athim, an accused may altogetherrefuse to take the witnessstand and refuse to answer anyand all questions.

G. RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINSTHIM AT TRIAL

Confrontation is the act ofsetting a witness face-to-facewith the accused so that thelatter may make any objectionhe has to the witness, and thewitness may identify theaccused, and this must takeplace in the presence of thecourt having jurisdiction topermit the privilege of cross-examination.

The main purpose of the rightto confrontation is to securethe opportunity of cross-examination and the secondarypurpose is to enable the judgeto observe the demeanor ofwitnesses.

In any criminal proceeding, thedefendant enjoys the right tohave compulsory process tosecure the attendance ofwitnesses and the production ofevidence in his behalf.

H. RIGHT TO SPEEDY, IMPARTIALAND PUBLIC TRIAL

The right to a speedy trial isintended to avoid oppressionand to prevent delay byimposing on the courts and onthe prosecution an obligationto proceed with reasonabledispatch.

The courts, in determiningwhether the right of theaccused to a speedy trial hasbeen denied, should considersuch facts as the length of thedelay, the accused’s assertionor non-assertion of his right,and the prejudice to theaccused resulting from thedelay. There is NO violation of theright where the delay isimputable to the accused. (Solisvs. Agloro, 64 SCRA 370)

REMEDIES AVAILABLE TO THEACCUSED WHEN HIS RIGHT TO ASPEEDY TRIAL IS VIOLATED

1. He should ask for thetrial of the case not forthe dismissal;

2. Unreasonable delay of thetrial of a criminal caseas to make the detentionof defendant illegalgives ground for habeascorpus as a remedy forobtaining release so asto avoid detention for areasonable period of time

3. Accused would be entitledto relief in a mandamusproceeding to compel thedismissal of theinformation.



MEMORY AID IN REMEDIAL LAWIMPARTIAL TRIALDue process of law requires ahearing before an impartial anddisinterested tribunal, andthat every litigant is entitledto nothing less than the coldneutrality of an impartialjudge. (Mateo, Jr. vs. Villaluz, 50 SCRA180)

Public trial – one held openlyor publicly; it is sufficientthat the relatives and friendswho want to watch theproceedings are given theopportunity to witness theproceedings.

EXCLUSION OF THE PUBLIC ISVALID WHEN:

1. evidence to be producedis offensive to decencyor public morals;

2. upon motion of theaccused; (Sec. 21, Rule119)

RULE ON TRIAL BY PUBLICITYThe right of the accused to afair trial is not incompatibleto a free press. Pervasivepublicity is not per se asprejudicial to the right to afair trial. To warrant afinding of prejudicialpublicity, there must beallegations and proof that thejudges have been undulyinfluenced, not simply thatthey might be, by the barrageof publicity. (People vs.Teehankee, 249 SCRA 54)

I. RIGHT TO APPEAL ON ALLCASES ALLOWED BY LAW AND IN THEMANNER PRESCRIBED BY LAW.

The right to appeal from ajudgment of conviction isfundamentally of statutoryorigin. It is not a matter ofabsolute right, independentlyof constitutional or statutoryprovisions allowing suchappeal.

WAIVER OF THE RIGHT TO APPEALThe right to appeal is personalto the accused and similarly toother rights of kindred nature,it may be waived eitherexpressly or by implication.HOWEVER, where death penalty isimposed, such right cannot bewaived as the review of thejudgment by the COURT OFAPPEALS is automatic andmandatory (A.M. NO. 00-5-03-SC).

THE SPEEDY TRIAL ACT OF 1998(RA 8493)

DUTY OF THE COURT AFTERARRAIGNMENT OF AN ACCUSEDCourt SHALL order a pre-trialconference to consider thefollowing:

1. plea bargaining;2. stipulation of facts;3. marking for

identification ofevidence of parties;

4. waiver of objections toadmissibility ofevidence; and

5. such other matter as willpromote a fair andexpeditious trial;

TIME LIMIT FOR THE TRIAL OFCRIMINAL CASES: SHALL NOTEXCEED 180 days from the first



MEMORY AID IN REMEDIAL LAWday of trial, HOWEVER, thisrule is NOT ABSOLUTE, for thelaw provides for the followingEXCEPTIONS:

1. those governed by theRules on SummaryProcedure; or

2. where the penaltyprescribed by law DOESNOT EXCEED 6 monthsimprisonment or a fine ofP1,000 or both;

3. those authorized by theChief Justice of the SC;

PERIOD FOR ARRAIGNMENT OF THEACCUSEDWithin 30 days from the filingof the information, or from thedate the accused appealedbefore the justice/judge/courtin which the charge is pending,whichever date last occurs.

WHEN SHALL TRIAL COMMENCE AFTERARRAIGNMENTWithin 30 days fromarraignment, HOWEVER, it may beextended BUT only:

1. for 180 days for thefirst 12 calendar monthperiod from theeffectivity of the law;

2. 120 days for the second12 month period; and

3. 80 days for the third 12month period.

RULE 116ARRAIGNMENT AND PLEA

Section 1. Arraignment andplea; how made.

Arraignment – the formal modeof implementing theconstitutional right of theaccused to be informed of thenature of the accusationagainst him.

WHERE AND HOW MADE:1. Before the court where

the complaint orinformation has beenfiled or assigned fortrial;

2. in open court, by thejudge or clerk byfurnishing the accused acopy of the complaint orinformation with the listof the witnesses, readingit in a language ordialect known to him andasking him of his plea;

RULES:1. Trial in absentia is

allowed only AFTERarraignment;

2. Judgment is generallyvoid if the accused hasnot been arraigned;

3. There can be noarraignment in absentia(accused must personallyenter his plea);

4. if the accused went totrial withoutarraignment, but hiscounsel had theopportunity to cross-examine the witness ofthe prosecution and afterthe prosecution he wasarraigned the defect wascured;




If an information is amendedMATERIALLY, arraignment on theamended information isMANDATORY, except if theamendment is only as to form;

Plea – the matter which theaccused, on his arraignment,alleges in answer to the chargeagainst him.

PERIOD TO PLEA When the accused is underpreventive detention: his caseshall be raffled and itsrecords transmitted to thejudge to whom the case wasraffled within 3 days from thefiling of the information orcomplaint and the accusedarraigned within 10 days fromthe date of the raffle. Thepre-trial conference of hiscase shall be held within 10days after arraignment.

When the accused is NOT underpreventive detention: unless ashorter period is provided byspecial law or Supreme Courtcircular, the arraignment shallbe held within 30 days from thedate the court acquiresjurisdiction over the person ofthe accused. The time of thependency of a motion to quash,or for bill of particulars, orother causes justifyingsuspension of the arraignment,shall be excluded in computingthe period.

WHEN SHOULD A PLEA OF NOTGUILTY BE ENTERED

1. when the accused sopleaded

2. when he refuses to plead3. where in admitting the

act charged, he sets upmatters of defense orwith lawful justification

4. when he enters a conditional plea of guilt

5. where, after a plea ofguilt, he introducesevidence of self-defenseor other exculpatorycircumstances

6. when the plea is indefinite or ambiguous

An unconditional plea of guiltadmits of the crime and all theattendant circumstances allegedin the information includingthe allegations of conspiracyand warrants of judgment ofconviction without need offurther evidence EXCEPT: (CAIDN)

1. Where the plea of guiltywas compelled by violenceor intimidation.

2. When the accused did notfully understand themeaning and consequencesof his plea.

3. Where the information isinsufficient to sustainconviction of the offensecharged.

4. Where the informationdoes not charge anoffense, any convictionthereunder being void.

5. Where the court has nojurisdiction.

Section 2. Plea of Guilty to alesser offense.

An accused may enter a plea ofguilty to a lesser offensePROVIDED that there is consent



MEMORY AID IN REMEDIAL LAWof the offended party and theprosecutor to the plea ofguilty to a lesser offensewhich is necessarily includedin the offense charged.

After arraignment but BEFOREtrial, the accused may still beallowed to plead guilty to alesser offense afterwithdrawing his plea of notguilty. In this plea of guiltyto a lesser offense, noamendment of the complaint orinformation is necessary.

If the accused entered a pleato a lesser offense WITHOUT theconsent of the offended partyand the prosecutor AND he wasconvicted, his subsequentconviction of the crime chargedwould NOT place him in DoubleJeopardy.

Section 3. Plea of guilty tocapital offense; reception ofevidence.

When the accused pleads guiltyto a capital offense, the courtshall:

1. conduct a searchinginquiry into thevoluntariness and fullcomprehension of theconsequences of his plea;

2. require the prosecutionto prove his guilt andthe precise degree of hisculpability;

3. ask the accused if hedesires to presentevidence in his behalfand allow him to do so ifhe desires.

To constitute searchinginquiry, the questioning mustfocus on:

1. the voluntariness of theplea; and

2. Whether the accusedunderstood fully theconsequence of his plea.

Section 5. Withdrawal ofimprovident plea of guilty.

Plea of Guilty – anunconditional admission ofguilt, freely, voluntarily andmade with full knowledge of theconsequences and meaning of hisact and with a clearunderstanding of the precisenature of the crime charged inthe complaint or information;

INSTANCES OF IMPROVIDENT PLEA1. plea of guilty was

compelled by violence orintimidation

2. the accused did not fullyunderstand the meaningand consequences of hisplea

3. insufficient informationto sustain conviction ofthe offense charged

4. information does notcharge an offense, anyconviction thereunderbeing void

5. court has no jurisdiction

At any time before the judgmentof conviction becomes final,the court may permit animprovident plea of guilty tobe withdrawn and be substitutedby a plea of not guilty.



MEMORY AID IN REMEDIAL LAWThe withdrawal of a plea ofguilty is not a matter of rightto the accused but of sounddiscretion to the trial court.(People vs. Lambrino, 103 Phil. 504)

Section 6. Duty of the court toinform accused of his right tocounsel.

DUTIES OF THE COURT WHEN THEACCUSED APPEARS BEFORE ITWITHOUT COUNSEL

1. It must inform thedefendant that it is hisright to have an attorneybefore being arraigned;

2. After giving him suchinformation, the courtmust ask him if hedesires the aid of anattorney;

3. If he desires and isunable to employ one, thecourt must assign anattorney de oficio todefend him; and

4. If the accused desires toprocure an attorney ofhis own, the court mustgrant him reasonable timetherefor.

Section 7. Appointment ofcounsel de oficio.

PURPOSETo secure to the accused, whois unable to engage theservices of an attorney of hisown choice, effectiverepresentation by making itimperative on the part of thecourt to consider in the

appointment of counsel deoficio, the gravity of theoffense and the difficulty ofthe questions likely to arisein the case vis-à-vis theability and experience of theprospective appointee.

Section 8. Time for counsel deoficio to prepare forarraignment.

As to what is reasonable time,it depends upon thecircumstances surrounding thecase like the gravity of theoffense, complexity of theallegations in the complaint orinformation, whether a motionto quash or a bill ofparticulars has to be filed,and other similarconsiderations.

Section 9. Bill of particulars.

Accused may, AT or BEFOREarraignment, move for a bill ofparticulars to enable himproperly to plead and toprepare for trial.

Just in civil cases, the billof particulars here should beconsidered an integral part ofthe complaint or informationwhich it supplements.The remedy against anindictment that fails toallege the time ofcommission of the offensewith sufficientdefiniteness is a motion



MEMORY AID IN REMEDIAL LAWfor a bill of particulars,not a motion to quash. The failure to ask for Bill ofParticulars amounts to a waiverof such right.

Section 10. Production orinspection of material evidencein possession of prosecution. Section 11. Suspension of arraignment

GROUNDS FOR SUSPENSION1. the accused appears to be

suffering from an unsoundmental condition whicheffectively renders himunable to fullyunderstand the chargeagainst him and to pleadintelligently thereto;

2. there exists a validprejudicial question; and

3. a petition for review ofthe resolution of theprosecutor is pending atthe Department of Justiceor the Office of thePresident; provided thatthe period of suspensionshall not exceed 60 dayscounted from the filingof the petition.

RULE 117MOTION TO QUASH

Section 1. Time to move toquash.

Motion to Quash - thispresupposes that the accusedhypothetically admits the factsalleged, hence the court in

resolving the motion cannotconsider facts contrary tothose alleged in theinformation or which do notappear on the face of theinformation, except thoseadmitted by the prosecution.

GENERAL RULE: The accused maymove to quash the complaint orinformation at any time BEFOREentering his plea.EXCEPTION - Instances where amotion to quash may be filedAFTER plea:

1. failure to charge anoffense

2. lack of jurisdiction overthe offense charged

3. extinction of the offenseor penalty

4. the defendant has been informer jeopardy.

Motion toQuash

Demurrer toEvidence

filed before thedefendant enters

his plea

filed after theprosecution hasrested its case

Does not go intothe merits ofthe case but isanchored onmatters not

directly relatedto the questionof guilt or

innocence of theaccused

based upon theinadequacy ofthe evidenceadduced by theprosecution insupport of theaccusation

Governed by Rule117 of the Rules

of CriminalProcedure

governed by Rule119 of the Rules

of CriminalProcedure

Section 2. Form and contents.

FORM AND CONTENTS OF A MOTIONTO QUASH



MEMORY AID IN REMEDIAL LAW1. in writing 2. signed by the accused or

his counsel3. shall specify distinctly

the factual and legal grounds therefor.

The court shall consider nogrounds other than those statedin the motion, EXCEPT lack ofjurisdiction over the offensecharged and when theinformation does not charge anoffense. A motion to suspend theissuance of a warrant of arrestshould be considered as amotion to quash if theallegations therein are to theeffect that the facts chargedin the information do notconstitute an offense.

RESOLUTION OF A MOTION TO QUASHA motion to quash must beresolved BEFORE trial andcannot defer the hearing anddetermination of said motionuntil trial on the merits as itwould impair the right of theaccused to speedy trial.

It may also be resolved at thepreliminary investigation sincethe investigating officer orjudge has the power to eitherdismiss the case or bind theaccused over for trial by theproper court, depending on itsdetermination of lack orpresence of probable cause.

Section 3. Grounds.1. That the facts charged do

not constitute anoffense;

2. That the court trying thecase has no jurisdictionover the offense charged;

3. That the court trying thecase has no jurisdictionover the person of theaccused;

4. That the officer whofiled the information hadno authority to do so;

5. That it does not conformsubstantially to theprescribed form;

6. That more that oneoffense is charged exceptwhen a single punishmentfor various offenses isprescribed by law;

7. That the criminal actionor liability has beenextinguished;

8. That it containsaverments which, if truewould constitute a legalexcuse or justification;and

9. That the accused has beenpreviously convicted oracquitted of the offensecharged, or the caseagainst him was dismissedor otherwise terminatedwithout his expressconsent.

Section 4. Amendment ofcomplaint or information

If an alleged defect in thecomplaint or information, whichis the basis of a motion toquash, can be cured byamendment, the court shallorder the amendment instead ofquashing the complaint orinformation. If, after theamendment, the defect is still



MEMORY AID IN REMEDIAL LAWnot cured, the motion to quashshould be granted.

Section 5. Effect of sustainingthe motion to quash.

EFFECTS IF COURT SUSTAINS THEMOTION TO QUASH

1. If the ground of themotion is either:a) that the facts charged

do not constitute anoffense; or

b) that the officer whofiled the informationhad no authority to doso, or

c) that it does notconform substantiallyto the prescribedform; or

d) that more than oneoffense is charged,

the court may order thatanother information befiled or an amendmentthereof as the case maybe within a definiteperiod. If such order isNOT MADE, or if havingbeen made, anotherinformation is NOT FILEDwithin a time to bespecified in the order,or within such time asthe court may allow, theaccused, if in custody,shall be dischargedtherefrom, unless he isalso in custody on someother charge.

2. If the motion to quash issustained upon any of thefollowing grounds:

a) that a criminal actionor liability has beenextinguished;

b) that it containsaverments which, iftrue, would constitutea legal excuse orjustification; or

c) that the accused hasbeen previouslyconvicted or acquittedof the offensecharged,

the court must state, inits order granting themotion, the release ofthe accused if he is incustody or thecancellation of his bondif he is on bail.

3. If the ground upon whichthe motion to quash wassustained is that thecourt has NO jurisdictionover the offense, thebetter practice is forthe court to remand orforward the case to theproper court, not toquash the complaint orinformation.

The prosecution may elevateto the Higher Courts an ordergranting a motion to quash.

PROCEDURE IF MOTION TO QUASH ISDENIED

1. accused should plead;2. accused should go to

trial without prejudiceto the special defenseshe invoked in the motion;

3. appeal from the judgmentof conviction, if any,and interpose the denial



MEMORY AID IN REMEDIAL LAWof the motion as anerror.

An order denying a motion toquash is INTERLOCUTORY and NOTAPPEALABLE. Appeal in due time,as the proper remedy, implies aprevious conviction as a resultof a trial on the merits of thecase and does not apply to aninterlocutory order denying amotion to quash.

The denial by the trial courtof a motion to quash CANNOT bethe subject of a petition forcertiorari, prohibition ormandamus in another court ofcoordinate rank.

Section 6. Order sustainingthe motion to quash not a barto another prosecution.

A motion SUSTAINING the motionto quash is NOT a bar toanother prosecution for thesame offense UNLESS:

1. the motion was based on the ground that the criminal action or liability has been extinguished, AND

2. that the accused has beenpreviously convicted or in jeopardy of being convicted or acquitted ofthe offense charged.

Section 7. Former conviction oracquittal; double jeopardy.

Double Jeopardy means that whena person is charged with anoffense and the case isterminated either by acquittalor conviction or in any othermanner without the consent ofthe accused, the latter cannotagain be charged with the sameor identical offense.

REQUISITES FOR DOUBLE JEOPARDYUNDER SECTION 7It is necessary that in the first case that-

1. the complaint orinformation or otherformal charge wassufficient in form andsubstance to sustain aconviction;

2. the court had jurisdiction;

3. the accused had been arraigned and had pleaded; and

4. he was convicted or acquitted or the case wasdismissed without his express consent;

When all these circumstancesare present, they constitute aBAR to a second prosecution for–

1. the same offense, or2. an attempt to commit the

said offense, or

3. a frustration of the saidoffense, or

4. any offense which necessarily includes or is necessarily included in the first offense charged.




The discharge of a defendanton a preliminary investigationis NOT such an adjudication inhis favor as will barsubsequent prosecution for theoffense. This is because, apreliminary investigation isnot a trial and does not havefor its object that ofdetermining definitely theguilt of the accused. Further,the accused ha snot yet beenarraigned.

DISMISSAL vs. ACQUITTALAcquittal is always based onthe merits, that is, thedefendant is acquitted becausethe evidence does not showdefendant’s guilt beyondreasonable doubt; but Dismissaldoes not decide the case on themerits or that the defendant isnot guilty.

If an act is punished by a lawand an ordinance, even if theyare considered as differentoffenses, conviction oracquittal under either shallconstitute a bar to anotherprosecution for the same act.

If a single act is punished bytwo different provisions of lawor statutes, but each provisionrequires proof of an additionalfact which the other does notso require, neither convictionnor acquittal in one will bar aprosecution for the other.(Perez vs. Court of Appeals, 163 SCRA236)

TESTS FOR DETERMINING WHETHERTHE TWO OFFENSES ARE IDENTICAL:

A. SAME OFFENSE TEST - There isIDENTITY between twooffenses not only when thesecond offense is exactlythe same as the first, butALSO when the second offenseis an attempt to orfrustration of, OR isnecessarily included in theoffense charged in the firstinformation.

EXCEPTIONS TO THE IDENTITYRULE:

1. The graver offensedeveloped due tosupervening facts arisingfrom the same act oromission constituting theformer charge.

2. The facts constitutingthe graver charge becameknown or were discoveredonly after a plea wasentered in the formercomplaint or information.

3. The plea of guilty to thelesser offense was madewithout the consent ofthe prosecutor and of theoffended party; exceptwhen the offended partyfailed to appear duringthe arraignment.

In any of these instances, suchperiod of the sentence as mayhave been served by the accusedunder the former convictionshall be credited against anddeducted from the sentence hehas to serve should he beconvicted under the subsequentprosecution.

B. SAME EVIDENCE TEST - whetherthe facts as alleged in the



MEMORY AID IN REMEDIAL LAWsecond information, ifproved, would have beensufficient to sustain theformer information, or fromwhich the accused may havebeen acquitted or convicted.

Section 8. Provisionaldismissal. GENERAL RULE: Where the casewas dismissed “provisionally”with the consent of theaccused, he CANNOT invokedouble jeopardy in anotherprosecution therefor OR wherethe case was reinstated on amotion for reconsideration bythe prosecution.EXCEPTIONS: Where the dismissalwas actually an acquittal basedon:

a) lack or insufficiency ofthe evidence; or

b) denial of the right tospeedy trial, hence, evenif the accused gave hisexpress consent to suchdismissal or moved forsuch dismissal, suchconsent would beimmaterial as suchdismissal is actually anacquittal.

REQUISITES1. consent of the prosecutor2. consent of the accused3. notice to the offended

party

If a case is provisionallydismissed with the consent ofthe prosecutor and the offendedparty, the failure to reinstateit within the given period willmake the dismissal permanent.

PERIOD FOR REINSTATEMENT:a. offenses punishable by

imprisonment notexceeding 6 years = ONEYEAR

b. offenses punishable byimprisonment of more than6 years = TWO YEARS

Otherwise the dismissal shallbe removed from beingprovisional and becomespermanent.

Section 9. Failure to move toquash or to allege any groundtherefor.

All grounds for a motion toquash are WAIVED if NOTseasonably raised, EXCEPT:

a) when the information doesnot charge an offense;

b) lack of jurisdiction ofthe court;

c) extinction of the offenseor penalty; and

d) double jeopardy.

RULE 118PRE-TRIAL

Section 1. Pre-trial; mandatoryin criminal cases.

Pre-trial is MANDATORY in allcriminal cases.

The court shall afterarraignment and within 30 daysfrom the time the courtacquires jurisdiction over theperson of the accused, unless ashorter period is provided forby special laws or circular of



MEMORY AID IN REMEDIAL LAWthe Supreme Court, order a pre-trial.

MATTERS CONSIDERED IN PRE-TRIALCONFERENCE

a) plea bargaining;b) stipulation of facts;c) marking for

identification ofevidence of the parties;

d) waiver of objections toadmissibility ofevidence;

e) modification of the orderof trial if the accusedadmits the charge butinterposes a lawfuldefense;

f) such matters as willpromote a fair andexpeditious trial of thecriminal and civilaspects of the case.(Sections. 2 & 3, Circ.38-98).

Plea bargaining – the processwhereby the accused, theoffended party and theprosecution work out a mutuallysatisfactory disposition of thecase subject to court approval.It usually involves thedefendant’s pleading guilty toa lesser offense or to only oneor some of the counts of amulti-count indictment inreturn for a lighter sentencethan that for the gravercharge.

Section 2. Pre-trial agreement.

Requisites before the pre-trialagreement can be used asevidence:

1. they are reduced towriting

2. the pre-trial agreement is signed by the accused and his counsel.

The requirement in section 2 isintended to safeguard the rightof the accused againstimprovident or unauthorizedagreements or admissions whichhis counsel may have enteredinto, or which any person mayascribe to the accused withouthis knowledge, as he may havewaived his presence at the pre-trial conference.

The omission of the signatureof the accused and his counsel,as mandatorily required by therules, renders the stipulationof facts inadmissible inevidence.

Section 3. Non-appearance atpre-trial conference.

The court may impose propersanctions and penalties fornon-appearance at pre-trialconference by the counsel forthe accused or the prosecutorwithout acceptable excuse.

The sanctions or penalty may bein the form of reprimand, fineor imprisonment. Inasmuch asthis is similar to indirectcontempt of court, the penaltyfor indirect contempt may beimposed.

PURPOSETo enforce the mandatoryrequirement of pre-trial incriminal cases.




The accused is not the onecompelled to appear, but onlythe counsel for the accused orthe prosecutor. The principalreason why accused is notincluded in the mandatoryappearance is the fear that toinclude him is to violate hisconstitutional right to remainsilent.

Section 4. Pre-trial order.

After the pre-trial, the courtissues an order recitingactions taken, facts stipulatedand evidence marked, andthereafter the trial on themerits will proceed on mattersnot disposed of during the pre-trial.

To prevent manifest injustice,however, the pre-trial ordermay be modified by the court,upon its own initiative or atthe instance of any party.

RULE 119TRIAL

Section 1. Time to prepare fortrial.

Trial - the examination beforea competent tribunal accordingto the laws of the land, of thefacts put in issue in a casefor the purpose of determiningsuch issue.

The trial shall commence within30 days from receipt of thepre-trial order.

Section 2. Continuous trialuntil terminated;postponements.

CONTINUOUS TRIAL SYSTEMTrial once commenced shallcontinue from day to day as faras practicable untilterminated; but it may bepostponed for a reasonableperiod of time for good cause.

LIMITATION OF THE TRIAL PERIODIt shall in no case exceed 180days from the first day of thetrial, except as otherwiseprovided by the Supreme Court.

Requisites before a trial canbe put-off on account of theabsence of a witness:

1. that the witness ismaterial and appears tothe court to be so

2. that the party whoapplies has been guiltyof no neglect

3. that the witnesses can behad at the time to whichthe trial is deferred andincidentally that nosimilar evidence could beobtained

4. that an affidavit showingthe existence of theabove circumstances mustbe filed.

Remedies of accused where aprosecuting officer withoutgood cause securespostponements of the trial of adefendant against his protestbeyond a reasonable period oftime:

1. mandamus to compel adismissal of the



MEMORY AID IN REMEDIAL LAWinformation

2. if he is restrained ofhis liberty, by habeascorpus to obtain hisfreedom.

The SC adopted the continuoustrial system as a mode ofjudicial fact-finding andadjudication conducted withspeed and dispatch so thattrials are held on thescheduled dates withoutpostponement, the factualissues for trial well-definedat pre-trial and the wholeproceedings terminated andready for judgment within 90days from the date of initialhearing, unless for meritoriousreasons an extension ispermitted.

The system requires that thePresiding Judge:

1. adhere faithfully tothe session hoursprescribed by laws;

2. maintain full control ofthe proceedings; and

3. effectively allocate anduse time and courtresources to avoid courtdelays.

The non-appearance of theprosecution at the trial,despite due notice, justified aprovisional dismissal or anabsolute dismissal dependingupon the circumstances.

Section 4. Factors for grantingcontinuance.

PURPOSE: To control thediscretion of the judge in the

grant of continuance on hisinstance or on motion of anyparty litigant.

Section 5. Time limit followingan order for new trial.

The trial shall commence within30 days from the date the orderfor a new trial becomes final.

Section 7. Public Attorney’s duties where accused is imprisoned.

These public attorneys entertheir appearance in behalf ofthe accused upon his request orthat of his relative or uponbeing appointed as counsel deoficio by the court.

Section 8. Sanctions.

Kinds:a. criminalb. administrativec. contempt of court

Section 11. Order of Trial

ORDER OF TRIAL:1. The prosecution shall

present evidence to provethe charge and, in theproper case, the civilliability

2. The accused may presentevidence to prove hisdefense and damages, ifany, arising from theissuance of a provisionalremedy in the case.

3. The prosecution and thedefense may, in that



MEMORY AID IN REMEDIAL LAWorder, present rebuttaland sur-rebuttal evidenceunless the court, infurtherance of justice,permits them to presentadditional evidencebearing upon the mainissue

4. Upon admission of theevidence of the parties,the case shall be deemedsubmitted for decisionunless the court directsthem to argue orally orto submit writtenmemoranda.

5. When the accused admitsthe act or omissioncharged in the complaintor information butinterposes a lawfuldefense, the order oftrial may be modified.

GENERAL RULE:The order in the presentationof evidence must be followed.The accused may not be requiredto present his evidence firstbefore the prosecution adducesits own proof.EXCEPTION:Where a reverse procedure wasadopted without the objectionof the defendant and suchprocedure did not prejudice hissubstantial rights, the defectis not a reversible error.

A departure from the order ofthe trial is not reversibleerror as where it was agreedupon or not seasonably objectedto, but not where the change inthe order of the trial wastimely objected by the defense.

Where the order of the trialset forth under this sectionwas not followed by the courtto the extent of denying theprosecution an opportunity topresent its evidence, thejudgment is a nullity. (Peoplevs. Balisacan)

Section 12. Application forexamination of witness foraccused before trial.

Accused may have his witnessexamined conditionally in hisbehalf BEFORE trial upon motionwith notice to all otherparties.The motion must state:

1. name and residence ofwitness

2. substance of testimony3. witness is so sick to

afford reasonable groundto believe that he willnot be able to attend thetrial or resides morethat 100 km and has nomeans to attend the same,or other similarcircumstances exist thatwould make himunavailable or preventhim from attending trial.

Section 13. Examination ofdefense witness; how made.

If the court is satisfied thatthe examination of witness isnecessary as provided inSECTION 4, order shall be madeand a copy served on thefiscal.



MEMORY AID IN REMEDIAL LAWThe examination shall be takenbefore any judge or if notpracticable any member of theBar in good standing designatedby the trial court, or by alower court designated by acourt of superior jurisdictionwhich issue the order.

Section 14. Bail to secureappearance of material witness.

If the court is satisfied, uponproof or oath, that a materialwitness will not testify whenso required, it may on motionof either party order thewitness to post bail in suchsum as may be deemed proper.Should the witness refuse topost such bail as required, thecourt may commit him to prisonuntil he complies or is legallydischarged after his testimonyhas been taken.

Section 15. Examination ofwitness for the prosecution.

The conditional examination ofprosecution witnesses shall beconducted before the judge orthe court where the case ispending and in the presence ofthe accused, unless he waivedhis right after reasonablenotice. The accused will havethe right to cross-examine suchprosecution witness, hence suchstatements of the prosecutionwitnesses may thereafter beadmissible in behalf of oragainst the accused (Regalado,p. 460).

Section 16. Trial of severalaccused

GENERAL RULE:When two or more persons arejointly charged with anoffense, they shall be triedjointly. This rule is sodesigned as to preclude awasteful expenditure ofjudicial resources and topromote an orderly andexpeditious disposition ofcriminal prosecutions.EXCEPTION:The court, upon motion of thefiscal or of any of thedefendants, may order aseparate trial for one or moreaccused. The granting of aseparate trial when two or moredefendants are jointly chargedwith an offense is purelydiscretionary with the trialcourt.

The motion for separate trialmust be filed BEFORE thecommencement of the trial andcannot be raised for the firsttime on appeal. If a separatetrial is granted, the testimonyof one accused imputing thecrime to his co-accused is notadmissible against the latter.In joint trial, it would beadmissible if the latter hadthe opportunity for cross-examination.

Section 17. Discharge of accused to be state witness.

Motion to discharge should bemade by the prosecution BEFOREresting its case.REQUISITES FOR DISCHARGE

1. absolute necessity for the testimony



MEMORY AID IN REMEDIAL LAW2. no other direct evidence

available for the prosecution

3. testimony can be substantially corroborated in its material points

4. accused not the most guilty

5. accused has never been convicted of an offense involving moral turpitude

Absence of any of therequisites for the discharge ofa particeps criminis is aground for objection to themotion for his discharge, BUTsuch objection must be raisedBEFORE the discharge isordered. EFFECTS OF DISCHARGE1. Evidence adduced in support

of the discharge shallautomatically form part ofthe trial;

2. If the court denies themotion to discharge theaccused as state witness,his sworn statement shall beinadmissible in evidence;

3. Discharge of accusedoperates as an acquittal andbar to further prosecutionfor the same offense.

EXCEPTIONS:1. If the accused fails or

refuses to testifyagainst his co-accused inaccordance with his swornstatement constitutingthe basis of thedischarge

2. Failure to testify refersexclusively todefendant’s will or fault

3. Where an accused whoturns state’s evidence ona promise of immunity butlater retracts and failsto keep his part of theagreement, his confessionof his participation inthe commission of thecrime is admissible asevidence against him.

Section 19. When mistake has been made in charging the proper offense.

When the offense proved isneither included in, nor doesit include, the offense chargedand is different therefrom, thecourt should dismiss the actionand order the filing of a newinformation charging the properoffense.

This rule is predicated on thefact that an accused person hasthe right to be informed of thenature and cause of theaccusation against him, and toconvict him of an offensedifferent from that charged inthe complaint or informationwould be an unauthorized denialof that right. (U.S. vs. Campo, 23Phil. 369)

Section 20. Appointment ofacting prosecutor.See Section 5, Rule 110.

Section 21. Exclusion of thepublic.

GENERAL RULE:The accused has the right to apublic trial and under ordinarycircumstances, the court may



MEMORY AID IN REMEDIAL LAWnot close the door of thecourtroom to the generalpublic.EXCEPTION:Where the evidence to beproduced during the trial is ofsuch character as to beoffensive to decency or publicmorals, the court may motupropio excludes the public fromthe courtroom.

Section 22. Consolidation oftrials of related offenses.

This contemplates a situationwhere separate informations arefiled:

1. for offenses founded onthe same facts;

2. for offenses which form part of a series of offenses of similar character

Section 23. Demurrer toevidence.

After the prosecution rests itscase, the court may dismiss theaction on the ground ofinsufficiency of evidence:

1. on its own initiativeafter giving theprosecution theopportunity to be heard;or

2. upon demurrer to evidencefiled by the accused withor without leave ofcourt.

The arrest rule allows theaccused in a criminal case topresent evidence even after amotion to dismiss PROVIDED thedemurrer was made with theexpress consent of the court.

The filing of the motion todismiss WITHOUT leave of courtresults in the submission ofthe case for decision on thebasis of the evidence on recordand does not lie from suchorder denying the motion todismiss.

If said motion to dismiss issustained, such dismissal beingon the merits is equivalent toan acquittal, hence theprosecution cannot appeal as itwould place the accused indouble jeopardy.

An order denying a demurrer toevidence being interlocutory isNOT APPEALABLE.

Section 24. Reopening.

At any time BEFORE finality ofthe judgment of conviction, thejudge may, motu propio or uponmotion, with hearing in eithercase, reopen the proceedings toavoid miscarriage of justice.The proceedings shall beterminated within 30 days fromthe order granting it.

RULE 120JUDGMENT

Section 1. Judgment; definitionand form.

Judgment - the adjudication bythe court that the accused isguilty or not guilty of theoffense charged and theimposition of the proper



MEMORY AID IN REMEDIAL LAWpenalty and civil liabilityprovided for by the law.

It is not necessary that thejudge who tried the case be thesame judicial officer to decideit. It is sufficient if he beapprised of the evidencealready presented by a readingof the transcript of thetestimonies already introduced,in the same manner as appellatecourts review evidence onappeal. Section 2. Contents of thejudgment.

Judgment must be 1. in writing; 2. in the official language,3. personally and directly

prepared and signed bythe judge,

4. with a concise statement of the fact and the law on which it is based.

REMEDY IF JUDGMENT IS NOT PUTIN WRITING: file a petition formandamus to compel the judge toput in writing the decision ofthe court.

If the judgment is one ofCONVICTION, judgment muststate:

1. Legal ratification of theoffense constituted bythe admissions of theaccused and theaggravating andmitigating circumstancesattending its commission

2. Participation of the accused, whether as principal, accomplice or accessory

3. Penalty imposed upon theaccused

4. Civil liability or damages caused by the wrongful act, unless separate civil action hasbeen reserved or waived

If the judgment is one ofACQUITTAL, it must make afinding on the civil liabilityof the accused, unless there isclear showing that the act fromwhich the civil liability mightarise did not exist.

Reasonable doubt - state ofthe case which, after fullconsideration of all evidence,leaves the mind of the judge insuch a condition that he cannotsay that he feels an abidingconviction, to a moralcertainty, of the truth of thecharge.

Acquittal – a finding of notguilty based on the merits,that is, the accused isacquitted because the evidencedoes not show that his guilt isbeyond reasonable doubt, or adismissal of the case after theprosecution has rested its caseupon motion of the accused onthe ground that the evidencefails to show beyond reasonabledoubt that the accused isguilty.

It is well-settled thatacquittal, in a criminal caseis immediately final andexecutory upon itspromulgation, and thataccordingly, the State may notseek its review without placing



MEMORY AID IN REMEDIAL LAWthe accused in double jeopardy.(Barbers vs. Laguio, Jr., 351 SCRA 606)

An acquittal of an accusedbased on reasonable doubt DOESNOT bar the offended party fromfiling a separate civil actionbased on other sources ofobligation.

Section 3. Judgment for two ormore offenses.

When two or more offensescharged in the complaint orinformation, and the accusedfails to object to it beforetrial, the court may convictthe accused of as many offensesas charged and proved.

An accused can be convicted ofan offense only when it is bothcharged and proved. If it isnot charged although proved, ORif it is not proved althoughcharged, the accused CANNOT beconvicted thereof.

Variance between the allegationand the proof cannot justify aconviction for either theoffense charged or the offenseproved unless either isincluded in the other (Section4).

Section 5. When an offenseincludes or is included inanother.

GENERAL RULE: If what is provedby the prosecution evidence isan offense which is included inthe offense charged in theinformation, the accused may

validly be convicted of theoffense proved.EXECEPTION: Where factssupervened after the filing ofinformation which change thenature of the offense.

An offense charged necessarilyincludes another when someessential elements oringredients of the offensecharged constitute the offenseproved, or when the essentialelements or ingredients of theoffense charged constitute orform part of those constitutingthe offense proved, then oneoffense is included in theother.

Section 6. Promulgation ofjudgment.

Promulgation of judgment -official proclamation orannouncement of judgment. Itconsists of reading thejudgment or sentence in thepresence of the accused and anyjudge of the court renderingthe judgment.

RULES ON THE VALIDITY OF PROMULGATION OF JUDGMENT:

1. The judgment must havebeen rendered andpromulgated during theincumbency of the judgewho signed it.

2. The presence of counselduring the promulgationof judgment is notnecessary.

Effect of Promulgation ofJudgment in Absentia – he shalllose all remedies available in



MEMORY AID IN REMEDIAL LAWthese Rules against thejudgment and the court shallorder his arrest.

Section 7. Modification ofjudgment.

Upon motion of the accused, ajudgment of conviction may bemodified or set aside by thecourt BEFORE it has becomefinal or BEFORE an appeal hasbeen perfected.

A judgment becomes final:a. when the period for

perfecting appeal anappeal has lapsed;

b. when the sentence ispartially or totallysatisfied or served;

c. when the accusedexpressly waives inwriting his right toappeal; and

d. when the accused appliesfor probation.

A judgment of acquittal becomesfinal immediately afterpromulgation and cannot berecalled for correction oramendment.

The prosecutor cannot ask forthe modification or settingaside of a judgment ofconviction because the rulesclearly provide that a judgmentof conviction may be modifiedor set aside by the courtrendering upon motion of theaccused.

The trial court can validlyamend the civil portion of itsdecision within 15 days from

promulgation thereof eventhough the appeal had in themeantime already been perfectedby the accused from judgment ofconviction.

The trial court may losejurisdiction over the judgmenteven BEFORE the lapse of 15days:

1. when the defendantvoluntarily submits tothe execution of thejudgment;

2. when the defendantperfects his appeal;

3. when the accusedwithdraws his appeal;

4. when the accusedexpressly waives inwriting his right toappeal;

5. when the accused files apetition for probation.

Section 8. Entry of judgment.

The final judgment of the courtis carried into effect by aprocess called “mittimus”.

Mittimus - A process issued bythe court after conviction tocarry out the final judgment,such as commanding a prisonwarden to hold the accused inaccordance with the terms ofthe judgment.

Section 9. Existing provisionsgoverning suspension ofsentence, probation and parolenot affected by this Rule.



MEMORY AID IN REMEDIAL LAWRULE 121

NEW TRIAL OR RECONSIDERATION

Section 1. New trial orreconsideration.

New trial - the rehearing of acase already decided but beforethe judgment of convictiontherein rendered has becomefinal, whereby errors of law orirregularities are expungedfrom the record or new evidenceis introduced, or both stepsare taken.

A motion for new trial orreconsideration should be filedwith the trial court within 15days from the promulgation ofthe judgment and interrupts theperiod for perfecting an appealfrom the time of its filinguntil notice of the orderoverruling the motion shallhave been served upon theaccused or his counsel.A motion for thereconsideration of the judgmentmay be filed in order tocorrect errors of law or factin the judgment. It does notrequire any further proceeding.

A new trial be granted at anytime before the judgment ofconviction becomes final:1. on motion of the accused2. on motion of the court but

with the consent of theaccused

The award of new trial ortaking of additional evidencerests upon the sound discretionof the court. (People vs. Acosta, 98Phil. 642)

Once the appeal is perfected,the trial court steps out ofthe case and the appellatecourt steps in. Should it cometo pass then that during thependency of the appeal, new andmaterial evidence, for example,have been discovered, theaccused may file a motion fornew trial with the appellatecourt.

Cases when the trial court losejurisdiction over its sentenceeven before the lapse of 15days:

1. When the defendantvoluntarily submits tothe execution of thesentence

2. When the defendantperfects his appeal. Themoment the appeal isperfected the court a quoloses jurisdiction overit, except for thepurpose of correctingclerical errors.

New Trial Reopening of the case

Filed afterjudgment isrendered butbefore the

finality thereof

made by thecourt before the

judgment isrendered in theexercise of

sound discretionAt the instance

or with theconsent of the

accused

does not requirethe consent ofthe accused; may

be at theinstance of

either party whocan thereafter

presentadditionalevidence




Section 2. Grounds for newtrial.

GROUNDS FOR A NEW TRIAL INCRIMINAL CASES:

1. errors of law orirregularities committedduring the trialprejudicial to thesubstantial rights of theaccused.

2. new and material evidencediscovered.

REQUISITES BEFORE A NEW TRIALMAY BE GRANTED ON THE GROUND OFNEWLY DISCOVERED EVIDENCE:

1. that the evidence wasdiscovered after trial;

2. that such evidence couldnot have been discoveredand produced at the trialeven with the exercise ofreasonable diligence;

3. that it is material notmerely cumulative,corroborative orimpeaching; and

4. the evidence is of such aweight that it wouldprobably change thejudgment if admitted.

Mistakes or errors of counselin the conduct of his case arenot grounds for new trial. Thisrule is the same whether themistakes are the result ofignorance, inexperience, orincompetence. (U.S. vs. Umali, 15Phil. 37)

If the incompetence, ignoranceor inexperience of counsel isso great and the errorcommitted as a result thereof

is so serious that the client,who otherwise has a good cause,is prejudiced and denied hisday in court, the litigationmay be reopened to give theclient another chance topresent his case.

Section 3. Grounds forreconsideration.

Grounds of motion forreconsideration1. errors of law;2. errors of fact in the

judgment, which requireno further proceedings.

The principle underlying thisrule is to afford the trialcourt the opportunity tocorrect its own mistakes and toavoid unnecessary appeals frombeing taken. The grant by thecourt of reconsideration shouldrequire no further proceedings,such as the taking ofadditional proof.

Section 4. Form of motion andnotice to the prosecutor.

Requisites for a motion for newtrial or reconsideration: Themotion for a new trial orreconsideration shall be:

1. in writing 2. filed with the court3. State grounds on which it

is based4. If the motion for new

trial is based on a newlydiscovered evidence, itmust be supported by theaffidavits of the witnessby whom such evidence isexpected to be given, or



MEMORY AID IN REMEDIAL LAWduly authenticated copiesof documents which it isproposed to introduce inevidence.

5. Notice of the motion fornew trial orreconsideration shall begiven to the fiscal.

While the rule requires that anaffidavit of merits be attachedto support a motion for newtrial based on newly discoveredevidence, yet the defect oflack of it may be cured bytestimony under oath of thedefendant at the hearing of themotion. (Paredes vs. Borja, 3 SCRA495)

Section 5. Hearing on motion.

Where a motion for new trialcalls for resolution of anyquestion of fact, the court mayhear evidence thereon byaffidavits or otherwise.

PURPOSETo determine whether the newtrial requested should begranted or not. It is not thenew trial proper where newlydiscovered evidence, forexample will be received by thecourt. (Pamaran, p. 608)

Section 6. Effects of grantinga new trial or reconsideration.

EFFECTS OF GRANTING A NEW TRIALOR RECONSIDERATION1. when a new trial is granted

on the ground of errors oflaw or irregularitiescommitted during the trial,all proceedings and evidence

not affected by thecommission of such errorsand irregularities shallstand, BUT those affectedthereby shall be set asideand taken anew. The courtmay, in the interest ofjustice, allow theintroduction of additionalevidence.

2. When a new trial is grantedon the ground of newlydiscovered evidence, theevidence already taken shallstand, and the newlydiscovered and such otherevidence as the court may,in the interest of justice,allow to be introduced,shall be taken andconsidered together with theevidence already in therecord.

3. In all cases, when the courtgrants new trial orreconsideration, theoriginal judgment shall beset aside and a new judgmentrendered accordingly.

The effect of the granting of anew trial is not to acquit theaccused of the crime of whichthe judgment finds him guilty,but precisely to set aside saidjudgment so that the case maybe tried de novo as if no trialhad been before.

Unlike the rule in Civil Cases,the remedy of the aggrievedparty being appeal in due time,an order granting a new trialrendered in Criminal Cases isalso interlocutory BUT iscontrollable by certiorari or



MEMORY AID IN REMEDIAL LAWprohibition at the instance ofthe prosecution.

RULE 122APPEAL

Section 1. Who may appeal.

Any party may appeal from ajudgment or final order, UNLESSthe accused will be placed indouble jeopardy.

Appeal - a proceeding forreview by which the whole caseis transferred to the highercourt for a final determination

Appeal is not an inherent rightof convicted person. The rightof appeal is and always hasbeen statutory. Only final judgments and ordersare appealable.

EFFECT OF AN APPEALAn appeal in a criminal caseopens the whole case for reviewand this includes the review ofthe penalty, indemnity, and thedamages involved. Consequently,on appeal, the appellate courtmay increase the penalty,indemnity, or the damagesawarded by the trial court,although the offended party hadnot appealed from said award,and the party who sought areview of the decision was theaccused.

Final judgment Final Ordera judgment whichwould becomefinal if no

appeal is taken

disposes of thewhole subject

matter orterminates a

particular issueleaving nothingto be done butto enforce byexecution what

has beendetermined

From a judgment convicting theaccused, two appeals mayaccordingly be taken:

1. The accused may seek areview of said judgment,as regards both actions;or

2. The complainant mayappeal with respect onlyto the civil action,either because the lowercourt has refused orfailed to award damages,or because the award madeis unsatisfactory to him.

GENERAL RULE: A privateprosecutor in a criminal casehas NO authority to act for thePeople of the Philippinesbefore a court on appeal. It isthe government’s counsel, theSolicitor General, who appearsin criminal cases or theirincidents before the SupremeCourt. At the very least, theProvincial Fiscal himself, withthe conformity of the SolicitorGeneral.EXCEPTION: The civil award in acriminal case may be appealedby the private prosecutor onbehalf of the offended party orhis successors.

Section 2. Where to appeal.

Section 3. How appeal taken.

HOW APPEAL IS TAKEN



MEMORY AID IN REMEDIAL LAW1. Appeal to the Regional

Trial Court: by filing anotice of appeal with thecourt that rendered thejudgment or orderappealed from and servinga copy to the adverseparty

2. Appeal to the Court ofAppeals from decision ofthe Regional Trial Courtin the exercise of itsoriginal jurisdiction: byfiling a notice of appealwith the court whichrendered the judgment ororder appealed from andserving a copy to theadverse party

3. Appeal to the Court ofAppeals in cases decidedby Regional Trial Courtin the exercise of itsappellate jurisdiction:by petition for review

4. Appeal to the Court ofAppeals in cases wherepenalty imposed is lifeimprisonment or where alesser penalty is imposedbut involving offensescommitted on the sameoccasion or arising outof the same occurrencethat gave rise to themore serious offense forwhich the penalty ofdeath or lifeimprisonment is imposed:by filing a notice ofappeal with the Court ofAppeals.

5. Death penalty: automaticreview by the Court ofAppeals. (A.M. No. 00-5-03-SC, October 15, 2004)

6. Other appeals to theSupreme Court: bypetition for review oncertiorari.

Error ofJudgment

Error ofJurisdiction

the court maycommit in theexercise ofjurisdiction

renders an orderof judgment void

or voidable

reviewable byappeal

reviewable bycertiorari

Modes of reviewThe Rules of Court recognize 4modes by which the decision orfinal order of the court may bereviewed by a higher tribunal,viz.:

1. ordinary appeal2. petition for review3. petition for review on

certiorari4. automatic appeal

Section 4. Service of notice ofappeal.

PUBLICATION OF NOTICE OF APPEALIf copy of the notice of appealcannot be served on the adverseparty or his counsel, it may bedone by publication. Service by publication is madein a newspaper of generalcirculation in the vicinityonce a week for a period notexceeding 30 days.

Section 5. Waiver of notice.

The appellee may waive hisright to a notice that anappeal has been taken. HOWEVER,the appellate court may, in itsdiscretion, entertain an appealnotwithstanding failure to give



MEMORY AID IN REMEDIAL LAWsuch notice if the interests ofjustice so require. (Llamas vs.Moscoso, 95 Phil. 735)

Section 6. When appeal to betaken.

An appeal must be filed within15 days counted from thepromulgation or notice of thejudgment or order appealedfrom.The period for appeal isinterrupted from the time themotion for new trial is filedup to the receipt by theaccused of the notice of theorder “overruling the motion”.

Section 8. Transmission ofpapers to appellate court uponappeal.

Within 5 days from the filingof the notice of appeal, theclerk of the court with whomthe notice of appeal was filedmust transmit to the clerk ofcourt of the appellate courtthe complete record of thecase, together with saidnotice.

Section 10. Transmission ofrecords in case of deathpenalty.

In case of death penalty, therecords shall be forwarded tothe Court of Appeals forautomatic review and judgment,within 20 days but not earlierthan 15 days after thepromulgation of the h e

the judgment or notice ofdenial of any motion for new

trial or reconsideration. Thetranscript shall also beforwarded within 10 days afterthe filing thereof by thestenographic reporter (A.M. No.00-5-03-SC, Oct. 15, 2004).

Section 12. Withdrawal ofappeal.

An appellant may withdraw hisappeal BEFORE the record hasbeen forwarded by the clerk ofcourt to the proper appellatecourt as provided by Section 8,in which case the judgmentshall become final. The court may also, in itsdiscretion, allow the appellantto withdraw his appeal,PROVIDED a motion to thateffect is filed BEFORE therendition of the judgment inthe case on appeal.

Once appeal is withdrawn, thedecision or judgment appealedfrom becomes at once final andexecutory. (People vs. Dueño, 90SCRA 23)

Section 13. Appointment ofcounsel de oficio for accusedon appeal.

The right to counsel de oficiodoes not cease upon theconviction of an accused by atrial court but continues, evenduring appeal. Duties of the clerk of thetrial court to the appellantwho is confined in prison uponthe presentation of notice ofappeal:



MEMORY AID IN REMEDIAL LAW1. he shall ascertain from

the appellant, whether hedesires the Court ofAppeals or the SupremeCourt to appoint anattorney to defend him deoficio;

2. he shall transmit withthe record, upon a formto be prepared by theclerk of the appellatecourt, a certificate ofcompliance with this dutyof the response of theappellant to his inquiry.

RULE 123PROCEDURE IN THE MUNICIPAL

TRIAL COURTS

Section 1. Uniform Procedure.

Procedure to be observed inMetropolitan Trial Courts,Municipal Trial Courts andMunicipal Circuit Trial Courts:They shall observe the sameprocedure as in the RegionalTrial Courts EXCEPT:

1. where a particularprovision expressly orimpliedly applies only tothe Metropolitan TrialCourts, Municipal TrialCourts and MunicipalCircuit Trial Courts orRegional Trial Courts

2. In criminal casesgoverned by the Rules onSummary Procedure inSpecial Cases adopted onAugust 1, 1983 andrevised on November 15,1991.

RULE 124PROCEDURE IN THE COURT OF

APPEALS

Section 2. Appointment ofcounsel de oficio for theaccused.

REQUISITES BEFORE AN ACCUSEDCAN BE GIVEN A COUNSEL DEOFICIO ON APPEAL

1. that he is confined inprison

2. without counsel de parteon appeal

3. signed the notice ofappeal himself

EXCEPTIONS: An accused-appellant not confined toprison can have a counsel deoficio if requested by him inthe appellate court within 10days from receipt of the noticeto file brief and the rightthereto is established byaffidavit.

Section 3. When brief for theappellant to be filed.

7 copies of the brief shall befiled within 30 days fromreceipt by the appellant or

his counsel of the notice fromthe clerk of court of the Courtof Appeals that the evidence,oral and documentary, isalready attached to the record. Brief - literally means a shortor condensed statement. Thepurpose of the brief is topresent to the court in conciseform the points and questions



MEMORY AID IN REMEDIAL LAWin controversy, and by fairargument on the facts and lawof the case, to assist thecourt in arriving at a just andproper conclusion.

PURPOSETo present to the court inconcise form the points andquestions in controversy and,by fair argument on the factsand law of the case, to assistthe court in arriving at a justand proper conclusion.

Section 4. When brief forappellee to be filed; replybrief of the appellant.

The appellee shall file 7copies of the brief with theclerk of court within 30 daysfrom receipt of the brief ofthe appellant accompanied byproof of service of 2 copiesthereof upon the appellant

Section 5. Extension of timefor filing briefs.

Not allowed EXCEPT for good andsufficient cause and only ifthe motion for extension isfiled before the expiration ofthe time sought to be extended.

Section 7. Contents of briefs.

Unlike the procedure in civilcases, it has been held that itis not essential for theaccused to make assignment oferrors in his brief, as onappeal, the whole record of thecase is submitted to andreviewable by the appellatecourt.

Issues that were never raisedin the proceedings before thetrial court cannot beconsidered and passed upon onappeal.

Section 8. Dismissal of appealfor abandonment or failure toprosecute.

GROUNDS FOR DISMISSAL OFAPPEALS

1. Failure on the part ofthe appellant to filebrief within thereglementary period,except when he isrepresented by a counselde oficio;

2. Escape of the appellant from prison or confinement;

3. When the appellant jumpsbail; and

4. Flight of the appellantto a foreign countryduring the pendency ofthe appeal.

DISMISSAL OF APPEAL; NEED OFNOTICE TO APPELLANTThe Court of Appeals maydismiss motu propio or onmotion by appellee an appealfor failure on the part of theappellant to file his brief ontime, BUT it must have a noticeserved upon the appellant ofthe action to be taken by saidcourt before dismissing motupropio the appeal.

Effect of Escape of Accused; Abandonment of Appeals

1. If the convict escapesfrom prison or



MEMORY AID IN REMEDIAL LAWconfinement or refuses tosurrender to the properauthorities, jumps bailor flees to a foreigncountry he is deemed tohave abandoned his appealAND the judgment of thecourt below becomesfinal.

2. In that case, the accusedcannot be afforded theright to appeal UNLESS(a) he voluntarilysubmits to thejurisdiction of the courtor (b) is otherwisearrested within 15 daysfrom notice of thejudgment against him.

Section 9. Prompt dispositionof cases.

It is discretionary for theappellate court whether toorder a hearing of the casebefore it or decide the appealsolely on the evidencesubmitted to the trial court.

If the Court of Appeals chosenot to hear the case, theJustices composing the divisionmay just deliberate on thecase, evaluate the recordedevidence on hand and thendecide it.

Section 10. Judgment not to bereversed or modified except forsubstantial error.

GENERAL RULE:The findings of the judge whotried the case and heard thewitnesses are not disturbed onappeal.

EXCEPTION:When it is shown that the trialcourt has overlooked certainfacts of substance and valuethat, if considered, mightaffect the result of the case.(People vs. Cabiling, 74 SCRA 285)

The reversal of judgmentsentered in the court below isprohibited, EXCEPT forprejudicial error – that whichtends to prejudice asubstantial right of a party tothe proceedings.

Section 11. Scope of Judgment.The appeal confers upon theappellate court fulljurisdiction and renders itcompetent to examine therecords, revise the judgmentappealed from, increase thepenalty and cite the properprovision of the law.

An invocation of theconstitutional immunity fromdouble jeopardy will not lie incase of appeal by the accused.The reason being that when theaccused appeals from thesentence of the trial court, hewaives the constitutionalsafeguard against doublejeopardy and throws the wholecase open to the review of theappellate court.

Section 12. Power to receiveevidence.

PURPOSETo speed up the disposition ofcourt cases.




Other powers of the Court ofAppeals:1. to try cases and conduct

hearings;2. receive evidence;3. perform any and all acts

necessary to resolvefactual issues raised incases: a. falling under its

original and appellatejurisdiction;

b. including the power togrant and conduct newtrials or furtherproceedings.

Section 13. Quorum of thecourt; certtification or appealof case to the SC.

a. Whenever the Court ofAppeals finds that thepenalty of deathshould be imposed, thecourt shall renderjudgment bur REFRAINfrom making an entryof judgment andforthwith certify thecase and elevate itsentire record to theSC for review.

b. In cases where theCourt of Appealsimposes reclusionperpetua, lifeimprisonment or alesser penalty, itshall render and enterjudgment imposing suchpenalty. The judgmentmay be appealed to theSC by notice of appealfiled with the Court

of Appeals. (A.M. No.00-5-03-SC, Oct. 15,2004)

Section 14. Motion for new trial.

Motion for new trial based onNewly Discovered Evidence maybe filed at any time AFTER theappeal from the lower court hasbeen perfected AND BEFORE thejudgment of the appellate courtconvicting the accused becomesfinal.

Once an appeal is perfected,the trial court steps out andthe appellate court steps in. Amotion for new trial must thenbe filed with the appellatecourt, not with the court fromwhose judgment the appeal istaken.Section 16. Rehearing orreconsideration.

A motion for reconsiderationshall be filed within 15 daysfrom notice of the decision orfinal order of the Court ofAppeals.

A re-hearing is NOT a matter ofright but a privilege to begranted or not, as the courtsees fit, the matter beingsolely within its discretion.

New questions CANNOT bepresented for the first time ona motion for rehearing,especially where they areinconsistent with positionstaken on the original hearing,or waived on the originalsubmission of the case.




A second motion for rehearingor reconsideration of a finaljudgment or order is NOTallowed because if parties areallowed to file as many motionsfor rehearing orreconsideration as theirdiscretion or caprice suits,the proceedings would becomeundeterminable andunnecessarily voluminous.

The MITTIMUS is the finalprocess of carrying into effectthe decision of the appellatecourt and the transmittalthereof to the court of originis predicated upon the finalityof the judgment. It shall bestayed during the pendency ofthe motion for rehearing orreconsideration.

A motion for reconsideration ofits judgment or finalresolution shall be resolved bythe Court of Appeals within 90days from the time it issubmitted for resolution, andno 2nd motion forreconsideration for the sameparty shall be entertained.

The only-one-motion-for-reconsideration rule does notapply where the first motionfor reconsideration resulted ina reversal or substantialmodification of the originaldecision or final resolution.The party adversely affectedthereby may file a motion forreconsideration.Section 17. Judgmenttransmitted and filed in trialcourt.

Transmittal of judgment tocourt a quoAfter the judgment has beenentered, a certified copy ofthe entry should be transmittedto the clerk of the court oforigin.

The copy of the entry serves asthe formal notice to the courtfrom which the appeal was takenof the disposition of the casein the appellate court, so thatthe judgment may be executedand/or placed or noted in theproper file.

Sec. 18. Application of certainrules in civil to criminalcases.

The corresponding amendment wasmade pursuant to the changesintroduced under the 1997 Rulesof Procedure.

Rule 47 (Annulment of Judgmentsof Final Judgment andResolutions) DOES NOT APPLY TOCRIMINAL CASES. The appropriateremedy for lack of jurisdictionor extrinsic fraud isCERTIORARI (Rule 65) or HABEASCORPUS (Rule 102).

RULE 125PROCEDURE IN THE SUPREME COURT

Section 1. Uniform Procedure.The procedure in the SupremeCourt in original, as well asin appealed cases, is the sameas in the Court of appeals,EXCEPT when otherwise providedby the Constitution or the law.




A case may reach the SupremeCourt in the following manner:

1. automatic review2. ordinary appeal3. petitioner for review on

certiorari

EFFECT OF DIRECT APPEAL TO THESUPREME COURT ON QUESTION OFLAW IN CRIMINAL CASESA direct appeal to the SupremeCourt on questions of law – incriminal cases in which thepenalty imposed is not death orlife imprisonment – precludes areview of the facts.

Cases involving both questionsof law and fact come within thejurisdiction of the Court ofAppeals.

Appeal to the SC is NOT AMATTER OF RIGHT, but a matterof sound judicial discretion.The prescribed mode of appealis by certiorari.

Section 2. Review of decisionsof the Court of Appeals.

GENERAL RULE: Findings of fact in the CA is conclusive upon the SCEXCEPTIONS:

1. when the conclusion is afinding grounded entirelyon speculation, surmisesor conjectures

2. when the inferencemade is manifestlyabsurd, mistaken orimpossible

3. when there is grave abuseof discretion in theappreciation of facts

4. when the judgment ispremised on amisapprehension of facts

5. when the findings of factare conflicting

6. when the Court of Appealsin making its findingswent beyond the issues ofthe case and the same iscontrary to theadmissions of bothappellant and appellee

7. when certain materialfacts and circumstanceshad been overlookedwhich, if taken intoaccount would after theresult as it would giverise to reasonable doubtto acquit the accused.

Question of law - when thedoubt or difference arises asto what the law is on a certainstate of facts. It must notinvolve an examination of theprobative value of the evidencepresented by the litigants orany of them.

Question of fact - when thedoubt or difference arises asto the truth or the falsehoodof alleged facts.

Section 3. Decision if opinionis equally divided.

The Supreme Court, theConstitution ordains, shall becomposed of a Chief Justice and14 associate justices. It mat



MEMORY AID IN REMEDIAL LAWsit en banc or in itsdiscretion, in divisions of 3,5, or 7 members (Section 4(1),Article VIII, 1987Constitution).

A criminal case shall bereheard by the Supreme Courtwhen the Court en banc isequally divided in opinion orthe necessary majority cannotbe had, if no decision isreached the conviction of thelower court shall be reversedand the accused acquitted.

According to the Constitution,only the Supreme Court en bancmay modify or reverse adoctrine or principle of law orruling laid down by the Courtin a decision rendered en bancor in division.

RULE 126SEARCH AND SEIZURE

Section 1. Search warrant defined.

Search Warrant – an order inwriting issued in the name ofthe People of the Philippines,signed by a judge and directedto a peace officer commandinghim to search for personalproperty described therein andbring it before the court.

ELEMENTS OF SEARCH WARRANT:1. order in writing2. signed by the judge in

the name of the People ofthe Philippines

3. commanding a peaceofficer to searchpersonal property

4. bring the property beforethe court

NATURE OF SEARCH WARRANTSSearch warrants are in thenature of criminal process andmay be invoked only infurtherance of publicprosecutions. Search warrantshave no relation to civilprocess or trials and are notavailable to individuals in thecourse of civil proceedings,nor for the maintenance of anymere private right.

SEARCH vs. SEIZUREThe term search as applied tosearches and seizures is anexamination of a man’s house orother buildings or premises orof his person with a view tothe discovery of contraband orillicit or stolen property orsome evidence of guilt to beused in the prosecution of acriminal action for someoffense with which he ischarged.

A seizure is the physicaltaking of a thing into custody.

General Warrant – a searchwarrant which vaguely describesand DOES NOT particularize thepersonal properties to beseized without a definiteguideline to the searching teamas to what items might belawfully seized, thus givingthe officers of the lawdiscretion regarding whatarticles they should seize.




A general warrant is NOT VALIDas it infringes on theconstitutional mandaterequiring particulardescription of the things to beseized.

WARRANT OFARREST

SEARCH WARRANT

Order directedto the peaceofficer toexecute thewarrant bytaking the

person statedtherein into

custody that hemay be bound toanswer for thecommission ofthe offense.

Order in writingin the name ofthe RP signed bythe judge anddirected to thepeace officer tosearch personal

propertydescribed

therein and tobring it to

court. (sec. 1)

Does not becomestale

validity is for10 days only

(sec. 9)May be served onany day and atany time of day

or night. (sec. 6, rule

113).

to be servedonly in daytime

unless theaffidavit

alleges that theproperty is onthe person or inthe place to besearched. (sec.

8)upon probable cause to bedetermined personally by thejudge after examination in

writing and under oath in theform of searching answers and

questions.Only issued ifthere is a

necessity ofplacing accusedunder immediate

custody

sworn statementsand affidavitsof complainantand witnesses

must besubmitted to

court.

Test to determine Particularity1. When the description

therein as specific asthe circumstances willordinarily allow

2. When the descriptionexpress a conclusion offact- not of law whichthe warrant officer maybe guided in making thesearch and seizure.

3. When the things describedare limited to thosewhich bear directrelation to the offensefor which the warrant isbeing issued.

EXCEPTION: AN APPLICATION FOR SEARCHWARRANT SHALL BE FILED WITH THEFF:

1. any court within whoseterritorial jurisdictiona crime was committed;

2. any court within thejudicial region where thecrime was committed ifthe place of thecommission of the crimeis known, or any courtwithin the judicialregion where the warrantshall be enforced;

3. HOWEVER, if the criminalaction has been filed,the application shallonly be made in the courtwhere the criminal actionis pending.

Section 3. Personal property tobe seized.

Kinds of property to be seizedby virtue of a warrant:

1. subject of the offense;



MEMORY AID IN REMEDIAL LAW2. proceeds or fruits of the

offense;3. the means used or

intended to be used forcommitting an offense.

The rule does not require thatthe property to be seizedshould be owned by the personagainst whom the search warrantis directed. It may or may notbe owned by him.

In a search incidental to anarrest even WITHOUT a warrantthe person arrested may besearched for:

1. dangerous weapons, and2. anything which may be

used as proof of thecommission of an offense.

Section 4. Requisites forissuing Search warrant.

REQUISITES1. must be issued upon

probable cause;2. probable cause must be

determined by the issuingjudge personally;

3. the judge must havepersonally examined, inthe form of searchingquestions and answers,the applicant and hiswitnesses and taken downtheir writtendepositions;

4. the search warrant mustparticularly describe oridentify the property tobe seized as far as thecircumstances willordinarily allow;

5. the warrant issued mustparticularly describe theplace to be searched andthe persons or things tobe seized;

6. it shall issue only forone specific purpose; and

7. it must not have beenissued more than 10 daysprior to the search madepursuant thereto.

A search warrant shall notissue but upon probable causein connection with one specificoffense.

Party who may question validityof search and seizure:Well settled is the rule thatthe legality of a seizure canbe contested only by the partywhose rights have been impairedthereby, and that the objectionto an unlawful search andseizure is purely personal andcannot be availed of by thirdparties.

REMEDIES FROM AN UNLAWFULSEARCH

1. a motion to quash thesearch warrant, and

2. a motion to suppress asevidence the objectsillegally taken.(EXCLUSIONARY RULE – anyevidence obtained throughunreasonable searches andseizures shall beinadmissible for anypurpose in anyproceeding)

3. Replevin, if the objectsare legally possessed.



MEMORY AID IN REMEDIAL LAWThe remedies are alternative;if a motion to quash is denied,a motion to suppress cannot beavailed of subsequently.

Where the search warrant is aPATENT NULLITY, certiorari liesto nullify the same.The illegality of the searchwarrant does not call for thereturn of the things seized,the possession of which isprohibited by law. HOWEVER,those personalities seized inviolation of the constitutionalimmunity whose possession isnot of itself illegal orunlawful ought to be returnedto their rightful owner orpossessor.

Any evidence obtained inviolation of the constitutionalimmunity against unreasonablesearches and seizures areinadmissible for any purpose inany proceeding (Section 2,Article III, 1987Constitution).

When may a search warrant besaid to particularly describethe thing to be seized:

1. the description thereinis as specific as thecircumstances will allow;

2. when it expresses aconclusion of fact bywhich the warrant may beguided; or

3. when the things describedare limited to thosewhich bear a directrelation to the offensefor which the warrant isissued.

PROBABLE CAUSE - facts andcircumstances which could leada reasonable, discreet andprudent man to believe that theproperty subject of an offenseis in the place sought to besearched.

”MULTI FACTOR BALANCING TEST”in determining Probable Cause:One which requires the officerto weigh the manner andintensity of the interferenceon the right of the people, thegravity of the crime committed,and the circumstances attendingthe incident.

Section 5. Examination ofcomplainant; record.

Manner on how a judge shouldexamine a witness to determinethe existence of probablecause:

1. the judge must examinethe witnesses personally

2. the examination must beunder oath

3. the examination must bereduced to writing in theform of searchingquestions and answers

Such personal examination isnecessary in order to enablethe judge to determine theexistence or non-existence of aprobable cause.

Section 6. Issuance and form orsearch warrant.

ISSUANCE OF SEARCH WARRANTThe Constitution ordains thatno warrant shall issue but upon



MEMORY AID IN REMEDIAL LAWprobable cause supported byoath or affirmation.

FORM OF SEARCH WARRANTThe search warrant must be inwriting and must contain suchparticulars as the name of theperson against whom it isdirected, the offense for whichit was issued, the place to besearched and the specificthings to be seized.

An application for a searchwarrant is heard ex-parte. Itis neither a trial nor a partof the trial. The examinationor investigation, which must beunder oath may not be inpublic. It may be even held inthe secrecy of the chambers. Itmust be under oath and must bein writing.

Section 8. Search of house,room, or premises to be made inpresence of two witnesses.

In order to insure that theexecution of the warrant willbe fair and reasonable, and inorder to insure that theofficer conducting the searchshall NOT exceed his authorityor use unnecessary severity inexecuting the search warrant,as well as for the officer’sown protection against unjustaccusations, it is requiredthat the search be conducted inthe presence of the:

1. lawful occupant of theplace to be searched,

2. or any member of hisfamily,

3. or in their absence, inthe presence of two

witnesses of sufficientage and discretionresiding in the samelocality.

This requirement is mandatory.

Section 9. Time of makingsearch.

GENERAL RULE:A search warrant must be servedin the day time.

EXCEPTION:A search warrant may be made atnight when it is positivelyasserted in the affidavit thatthe property is on the personor in the place ordered to besearched (Alvares vs. CFI of Tayabas,64 Phil. 33). The affidavit makingsuch assertion must itself besufficient as to the fact soasserted, for if the same isbased upon hearsay, the generalrule shall apply.

A search warrant conducted atnight without direction to thateffect is an unlawful search.The same rule applies where thewarrant left blank the “time”for making the search.

A public officer or employeewho exceeds his authority oruses unnecessary severity inexecuting the warrant is liableunder Article 129 of theRevised Penal Code.

Section 10. Validity of searchwarrant.

10 days from its date,thereafter, it shall be void. Asearch warrant can be used only



MEMORY AID IN REMEDIAL LAWonce, thereafter it becomesfunctus oficio.

While, under section 10, asearch warrant has a validityof 10 days, NEVERTHELESS, itCANNOT be used every day ofsaid period and once articleshave already been seized undersaid warrant, it CANNOT be usedagain for another search andseizure, EXCEPT when the searchconducted on one day wasinterrupted, in which case thesame may be continued under thesame warrant the following dayif not beyond 10 day period.(Uy Kheytin vs. Villareal, 42 Phil. 886)

Section 12. Delivery of[property and inventory thereofto court; return andproceedings thereon.

The law imposes upon the personmaking the search the duty toissue a detailed receipt forthe property seized.Additionally, he is likewiserequired to make a return ofthe warrant to the court whichissued it, together with aninventory of the propertyseized.

Section 13. Search incident tolawful arrest.

WHEN MAY THERE BE A SEARCHWITHOUT WARRANT

1. in times of war withinthe area of militaryoperation;

2. as an incident of a lawful arrest, subject tothe following requisites:a. arrest must be lawful;

b. search and seizure must be contemporaneous with arrest;

c. search must be withinpermissible area;

(i.e. “STOP AND FRISK”search which allows alimited protective searchof outer clothing forweapons)

3. when there are prohibitedarticles open to eye and hand; (PLAINVIEW DOCTRINE)

4. when there is consent, subject to the following conditions: (consented search)a. there is a right;b. there must be

knowledge of the existence of such right;

c. there must beintention to waive;

5. when it is incident of inspection;

6. under the Tariff and Customs Code for purposesof enforcing customs and tariff laws;

7. searches and seizures ofvessels and aircraft;this extends to thewarrantless search of amotor vehicle forcontraband;

Search and seizure of vesselsand aircraft may validly bemade without a search warrantbecause the vessel or aircraftcan quickly move out of thejurisdiction before suchwarrant could be secured.



MEMORY AID IN REMEDIAL LAWThe remedy for questioning thevalidity of a search warrantcan only be sought in the courtthat issued it, not in the sala

of another judge of concurrentjurisdiction. Except wherethere is already a case filed,the latter shall acquirejurisdiction to the exclusionof other courts.

Waiver of legality and admissibilityObjection to the legality ofthe search warrant as to theadmissibility of the evidenceobtained or deemed waived whereno objection of the searchwarrant was raised during thetrial of the case nor to theadmissibility of the evidenceobtained through said warrant.Section 14. A motion to quash asearch warrant or to suppressevidence; where to file.

IN WHAT COURT MAY A MOTION TOQUASH BE FILED:

1. before the court thatissued the warrant;

2. under the CRIMINAL CASE RULE, all the incidents arising from the Search Warrant should be consolidated in the courtwhere the criminal case is pending;

3. under the ALTERNATIVEREMEDY RULE, with thecourt which issued thesearch warrant. In thismotion, all grounds forobjection existent oravailable and known atthe time MUST BE INVOKED,

otherwise, they aredeemed waived.

The legality of the searchwarrant should be addressed tothe court issuing the searchwarrant and not to any othercourt to foster judicialstability (Pagkalinawan vs.Gomez, 23 SCRA 1275).

Filing of motion to quash iswithout prejudice to any properrecourse to the appropriatehigher court by the partyaggrieved.

Rule 127PROVISIONAL REMEDIES IN

CRIMINAL CASES

Section 1. Availability ofprovisional remedies.

NATURE OF PROVISIONAL REMEDIES 1. Those to which parties

litigant may resort for thepreservation or protectionof their rights orinterests and for no otherpurposes during thependency of the action.

2. They are applied to apending litigation for thepurpose of securing thejudgment or preserving thestatus quo, and in somecases after judgment, forthe purpose of preservingor disposing of the subjectmatter.

The requisites and procedurefor availing of these



MEMORY AID IN REMEDIAL LAWprovisional remedies shall bethe same as those for civilcases.

The provisional remedies underthis rule are proper only wherethe civil action for therecovery of civil liability exdelicto has not been expresslywaived or the right toinstitute such civil actionseparately is not reserved inthose cases where reservationmay be made.

Where the civil action arisingfrom a criminal offense issuspended by the filing of thecriminal action, the courtwherein said civil case ispending can issue the aforesaidauxiliary writs since suchorders do not involve adetermination of the merits ofthe case. (Babala vs. Abaño, 90 Phil.827)

Kinds of provisional remedies1. attachment2. injunction3. receivers4. delivery of personal

property5. support pendente lite

Section 2. Attachment

Who may apply for preliminary attachmentThe aggrieved party in whosebehalf the civil aspect of thecriminal action is prosecutedmay apply for the issuance of awrit of preliminary attachment,he being the person primarilyand directly interestedthereby. The prosecutor in the

criminal action may make suchan application in behalf of orfor the protection of theinterest of the offended party.

It was held by the SupremeCourt that the publicprosecutor has the authority toapply for preliminaryattachment as may be necessaryto protect the interest of theoffended party.

Notice to adverse party, not requiredNo notice to the adverse party,or hearing on the applicationis required before a writ ofpreliminary attachment mayissue as a hearing would defeatthe purpose of the provisionalremedy. The time which such ahearing would take, could beenough to enable the defendantto abscond or dispose of hisproperty before a writ ofattachment issue and the onlyrequisites from the issuance ofa writ of preliminaryattachment are the affidavitand bond of applicant.(Mindanao Savings, etc. vs. Court ofAppeals, 172 SCRA 480)

Attachment may be availed ofONLY when the civil actionarising from the crime has notbeen expressly waived or notreserved and only in thefollowing cases:a. when the accused is about to

abscond from thePhilippines;

b. when the criminal action isbased on a claim for moneyor property embezzled orfraudulently misapplied or



MEMORY AID IN REMEDIAL LAWconverted to the use of theaccused who is a publicofficer or a corporateofficer or an attorney,broker, or agent or clerk inthe course of employment orby a person in a fiduciarycapacity;

c. when the accused hasconcealed, removed or aboutto dispose of his property;

d. when the accused residesabroad.

CRIMINAL PROCEDURE: Information


REPUBLIC OF THE PHILIPPINESNATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURTMANILA, BRANCH 911

PEOPLE OF THE PHILIPPINESPLAINTIFF,

-VERSUS-CRIM. CASE NO. ___________

HANNAH MAE VENTURAACCUSED.

INFORMATION2

The undersigned accuses HANNAH MAE VENTURA of the crime ofMURDER3, committed as follows:

That on or about December 5, 20044, in Batute, Manila5, Philippines,within the jurisdiction of this court, the said accused did, then andthere, with malice aforethought and with deliberate intent to takethe life of RENEE JOI ZABALA6, willfully, unlawfully, feloniously,suddenly, unexpectedly, and treacherously attack the latter with ametal fork, first wounding her in the back, and afterwards, whenenfeebled and unable to defend herself, again stabbed her in theneck, both wounds being necessarily mortal7, thereby causing thedirect and immediate death of said RENEE JOI ZABALA.

CONTRARY TO LAW.

April 28, 2005.

__Sgd. Fiscal Happy__

(City/Provincial Fiscal)8

Criminal Procedure Memory Aid

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