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ATENEOCENTRALBAROPERATIONS 2007

Remedial LawSUMMER REVIEWER

Advisers:Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan

CRIMINAL PROCEDURE

PRELIMINARY MATTERS

CRIMINAL PROCEDUREIt is the method prescribed by law for theapprehension and prosecution of persons accused ofany criminal offense and for their punishment, in caseof conviction (Remedial Law IV, Herrera).

It is concerned with the procedural steps through

which a criminal case passes, commencing with theinitial investigation of a crime and concluding with therelease of the offender.

CRIMINAL JURISDICTIONIt is the authority to hear and try a particular offenseand impose the punishment for it (People v. Marinao,71 SCRA 600, 604).

REQUISITES FOR VALID EXERCISE OFCRIMINAL JURISDICTION:

1. Jurisdiction over the subject matter is thepower to hear and determine cases of the

general class to which the proceedings inquestion belong (Reyes v. Diaz, 73 Phil 484);by virtue of the imposable penalty or its nature,is one which the court is by law authorized totake cognizance of; conferred by law.

2. Jurisdiction over the territory where theoffense was committed the offense musthave been committed within the territorial

jurisdiction of the court; jurisdiction over theterritory; cannot be waived

3. Jurisdiction over the person of the accused

the person charged with the offense musthave been brought to its presence for trial,forcibly by warrant of arrest or upon hisvoluntary submission to the court.

The question of jurisdiction may be raised at anystage of the proceedings. The exception to this ruleis when there is estoppel and laches on the partywho raised the question of jurisdiction.

JURISDICTION OVERTHE SUBJECT

MATTER

JURISDICTION OVERTHE PERSON OF THE

ACCUSED

Conferred by law. Itcannot be acquired bythe consent of theaccused.

May be acquired byconsent of the accusedor by waiver ofobjections.

Objection that the courthas no jurisdiction overthe subject matter maybe made at any stage ofthe proceeding and theright to make suchobjection is never

waived.

If the accused fails tomake his objection intime, he will be deemedto have waived it.

JURISDICTION

What determines jurisdicti onJurisdiction is determined by the extent of the penaltywhich the law imposes, on the basis of the facts asrecited in the complaint or information constitutive ofthe offense charged

Jurisdiction is not determined by:

what may be meted out to the offender after

trial the result of the evidence that would be

presented during the trial

Jurisdiction is retained regardless of:

whether the evidence proves a lesser offensethan that charged in the information,

the subsequent happening of events, althoughof a character which would have prevented

jurisdiction from attaching in the first instance.

GENERALRULE:Jurisdiction of a court to try criminal action is to be

determined by the law at the time of the institution ofthe action.

EXCEPTION: Where the statute expressly provides,or is construed that it is intended to operate to actionspending before its enactment, in which case, thecourt where the criminal action is pending is oustedof jurisdiction and the pending action will have to betransferred to the other tribunal which will continuethe proceeding.


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ONCE VESTED, JURISDICTION CANNOT BEWITHDRAWN BY:

1. Subsequent valid amendment of theInformation; or2. Subsequent statutory amendment of the rules

of jurisdiction, unless the amendatory lawprovides otherwise.

Venue is jurisd ictionalThus: Action must be instituted and tried in themunicipality or territory where the offense has beencommitted or where any one of the essentialingredients thereof took place.

GENERALRULE:The question of jurisdiction may be raised at anystage of the proceedings.

EXCEPTION: It may not be raised for the first time onappeal, where there has been estoppel and lacheson the party who raises the question.

Criminal jurisdicti on of MTCs

GENERAL RULE:MTC has jurisdiction over all offenses, the maximumpenalty of which as provided by law does not exceed6 years (prision correccional).

EXCEPTION: In cases where the only penaltyprovided by law is a fine, the amount whereof shalldetermine the jurisdiction of the court:

MetroTC, MTC, and MCTC: if fine is not morethan 4000 pesos.

RTC: if fine exceeds 4000 pesos, includingoffenses committed by public officers andemployees in relation to their office, where theamount of the fine does not exceed 6000pesos. (SC Court Circular No. 09-94).

Accessory penalties and civil liabilities: no longerdeterminative of jurisdiction.

No jurisdiction: over those cases which byprovision of special law are made triable by the RTCor the Sandiganbayan even if the maximum penaltyprescribed by such special law is less than 6 years.Included in such exceptions are election offenses,libel or written defamation, and violation of Sec. 39 ofthe Dangerous Drugs Act of 1972 (RA 6425).

Criminal Jurisdict ion of the Sandiganbayan

Offenses or felonies, whether simple or complexedwith other crimes committed by the public officialsand their employees mentioned in Subsection (a) ofthis section in relation to their office.

If the last element, namely, in relation to his office isabsent or is not alleged in the information, the crimecommitted falls within the exclusive original

jurisdiction of ordinary courts and not the SB.

The offense is committed in relation to the office if theoffense is intimately connected with the office of theoffender and perpetuated while he was in theperformance of his official functions, or when thecrime cannot exist without the office, or the office is aconstituent element of the crime as defined in thestatute.

Election OffensesFall outside the jurisdiction of SB even if they arecommitted by public officers classified as Grade 27and higher and in relation to their offices. It is theRTC that has jurisdiction as provided for in theOmnibus Election Code.

Court Martial CasesOffenses committed by members of the ArmedForces and other persons subject to military law arecognizable by court martial if such offenses areservice connected as expressly enumerated in RA7055.

If the particular offense is not one of thoseenumerated in the law, the case falls under either theregular courts or the SB, as the case may be.

Jurisdiction of Family CourtsRepublic Act No. 8369 establishing the Family Courtgranting them exclusive original jurisdiction over childand family cases, namely: Criminal cases where oneor more of the accused is below 18 years of age butnot less than 9 years of age or where one or more ofthe victim is a minor at the time of the commission ofthe offense, provided that if the minor is found guilty,the court shall promulgate sentence and ascertain

any civil liability which the accused may haveincurred. The sentence shall be suspended withoutneed of an application pursuant to the Child andYouth Welfare Code or P.D. 603).

Jurisd iction over Complex CrimesJurisdiction is lodged with the trial court having

jurisdiction to impose the maximum and most seriouspenalty imposable of an offense forming part of thecomplex crime.


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Jurisdiction over Crimes Punishable by DestierroWhere the imposable penalty is destierro, the casefalls within the exclusive jurisdiction of the Municipal

Trial Court, considering that in the hierarchy ofpenalties under Article 71 of the Revised Penal Code,destierro follows arresto mayor which involvesimprisonment (People v. Eduarte, 182 SCRA).

Principle of Adherence of JurisdictionOnce jurisdiction is vested in the court, it is retainedup to the end of litigation (Dela Cruz v. Moya, 160SCRA 838).

RULE 110PROSECUTION OF OFFENSES

CRIMINAL ACTIONIt is an action by which the State prosecutes a personfor an act or omission punishable by law.

Section 1. Institution of Criminal Actions

For offenses which require preliminaryinvestigation:By filing the complaint with the proper officer forpreliminary investigation.

Refers to a complaint-affidavit, and is differentfrom the complaint defined in Section 3 of Rule

110. Preliminary investigation is required for

offenses where the penalty prescribed by lawis at least 4 years, 2 months and 1 day ofimprisonment without regard to the fine (Rule112, Sec. 1, Par. 2).

For all other offenses, or for offenses which arepenalized by law with lower than at least 4 years,2 months and 1 day without regard to the fine:Instituted directly with the MTC and MCTC, or thecomplaint is filed with the Office of the Prosecutor.

In Manila and other chartered cities, the complaintshall be filed with the Office of the Prosecutor unlessotherwise provided in their charters.

NOTE: A complaint for offenses cognizable by theRTC is NOT filed directly with the RTC either forpurposes of preliminary investigation or forcommencement of the criminal prosecution.

DOES NOT APPLY: To offenses which aresubject to summary procedure

Effect of institution of the Criminal Action:The institution of the criminal action interrupts therunning of the period of prescription of the offensecharged

UNLESS:otherwise provided in special laws.

Act No. 3323 governs the prescriptive periods ofviolations of special laws, or offenses other thanthose penalized under the Revised Penal Code.

NOTE: With respect to offenses penalized by speciallaws, the filing of the complaint or information in courtis the one that interrupts the prescriptive period andnot the filing of the complaint in the proper office forpurposes of conducting a preliminary investigation(Zaldivar v. Reyes, 211 SCRA 277).

The filing of a complaint for purposes ofpreliminary investigation starts the prosecutionprocess.

REQUISITES OF A COMPLAINT ORINFORMATION

1. in writing2. in the name of the People of the Philippines3. Against all persons who appear to be

responsible for the offense involved.

Who is the real offended party?The People of the Philippines, but since the crime is

also an outrage against the offended party, he isentitled to intervene in its prosecution in cases wherethe civil action is impliedly instituted therein.

Section 2. The complaint or information

FORM:1. In writing;2. In the name of the People of the Philippines;

and3. Against all persons who appear to be

responsible for the offense involved.

Section 3. Complaint defined

COMPLAINTIt is a sworn written statement charging a person withan offense, subscribed by the offended party, anypeace officer, or other public officer charged with theenforcement of the law violated.

The complaint as defined under Section 3 is differentfrom the complaint filed with the Prosecutors Office.It refers to the one filed in court for the


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commencement of a criminal prosecution for violationof a crime usually cognizable by municipal trial courtsas well as to a complaint filed by an offended party inprivate crimes or those which cannot be prosecutedde 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 the

Philippines;3. It must charge a person with an offense; and4. It must be subscribed by the offended party, by

any peace officer or public officer charged withthe enforcement of the law violated.

The COMPLAINT FILED WITH THEPROSECUTORS OFFICE, from which the lattermay initiate a preliminary investigation, refers to:

1. any written complaint2. filed by an offended party or not3. not necessarily under oath, except in 2

instances:

complaint for commission of an offensewhich cannot be prosecuted de officio or isprivate in nature

where the law requires that it is to bestarted by a complaint sworn to by theoffended party, or when it pertains to thosewhich need to be enforced by specifiedpublic officers.

Under the Rule on Summary Procedure:

A complaint may be directly filed in the MTC,provided that in Metro Manila and in chartered cities,the criminal action may only be commenced by thefiling of information, which means, only by theprosecutor, except when the offense cannot beprosecuted de officio as in private crimes.

PERSONS WHO CAN FILE A COMPLAINT:1. Offended party;2. Any peace officer;3. Other public officer charged with the

enforcement of the law violated.

Section 4. Information defined

INFORMATIONIt is an accusation in writing charging a person withan offense, subscribed by the prosecutor and filedwith the court.

REQUISITES OF AN INFORMATION:1. It must be in writing;2. It must charge a person with an offense;3. It must be subscribed by the prosecutor; and

4. It must be filed in court.

PERSONS AUTHORIZED TO FILE ANINFORMATION

1. City or provincial prosecutor and their

assistants2. Duly appointed special prosecutors.

Information and Complaint distinguished

COMPLAINT INFORMATION

Subscribed by theoffended party, anypeace officer or otherofficer charged with theenforcement of the lawviolated.

Subscribed by theprosecutor. It does nothave to be subscribed bythe offended party or anypeace officer or otherpeace officer chargedwith the enforcement ofthe law.

Filed either in the MTC orwith the provincial/cityprosecutors office

Filed in court.

NOTE: PROSECUTION IN THE RTC IS ALWAYSCOMMENCED BY INFORMATION, EXCEPT:

1. In certain crimes against chastity(concubinage, adultery, seduction, abduction,acts of lasciviousness) ; and

2. Defamations imputing any of the aforesaidoffenses wherein a sworn written complaint isrequired in accordance with Section 5 of thisRule.

In case of variance between the complaint filed bythe offended party and the information in crimesagainst chastity, the complaint controls (People v.Oso, 62 Phil 271).

People v. Santiago G.R. No. 137281 (2001)A defectively crafted information, such as that

alleging multiple offenses in a single complaint orinformation transgresses Rule 110, 13. A. However,failure to make a timely objection to such a defect isdeemed to be a waiver of the said objection.

Section 5. Who Must Prosecute Criminal Actions

Full Discretion and Control o f the ProsecutorAll criminal actions commenced by complaint ofinformation shall be prosecuted under the directionand control of the prosecutor.

The institution of a criminal action depends upon thesound discretion of the prosecutor. But once thecase is already filed in court, the same can no longerbe withdrawn or dismissed without the tribunals


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approval. Should the prosecutor find it proper toconduct a reinvestigation of the case at such stage,the permission of the Court must be secured (Crespov. Mogul).

May a criminal prosecution be restrained byinjunction?GENERAL RULE:No

REASON: Public interest requires that criminal actsbe immediately investigated and prosecuted for theprotection of society.

EXCEPTIONS WHERE CRIMINAL PROSECUTIONMAY BE RESTRAINED BY INJUNCTION

1. where injunction is justified by the necessity toafford protection to the constitutional rights ofthe accused

2. when necessary for the orderly administrationof justice or to avoid oppression or multiplicityof actions

3. when there is a prejudicial question which issub judice

4. when the acts of the officer are without or inexcess of authority

5. where the prosecution is under an invalid law,ordinance or regulation

6. when double jeopardy is clearly apparent7. where the court has no jurisdiction over the

offense8. where it is a case of persecution rather than

prosecution

9. where the charges are manifestly false andmotivated by the lust for vengeance

10. when there is clearly no prima facie caseagainst the accused and the motion to quashon that ground has been denied

11. preliminary injunction has been issued by theSupreme Court to prevent the threatenedunlawful arrest of petitioners.

Prior to the filing of the information in court, theprosecutor has full control of the case. Hedecides who should be charged in court and whoshould be excluded from the information.

DECISION OF THE PROSECUTOR SUBJECT TOREVIEW BY:

the Secretary of Justice who exercisessupervision and control over his actions andwho may sustain, modify or set aside hisresolution on the matter

in appropriate cases, by the courts when heacts with grave abuse of discretion amountingto lack of jurisdiction.

Private Prosecutor Participation: May a public prosecutor allow a private prosecutor toactively handle the conduct of the trial? Yes, wherethe civil action arising from the crime is deemed

instituted in the criminal action.

Public Prosecutor must be present during theproceedings and must take over the conduct of thetrial from the private prosecutor at any time the causeof the prosecution may be adversely affected.

Thus, where the prosecutor has turned over theactive conduct of the trial to the private prosecutorwho presented testimonial evidence even when thepublic prosecutor was absent during the trial, theevidence presented could not be considered validevidence of the People.

However: this rule applies only to courts which areprovided by law with prosecutors, and not tomunicipal courts which have no trial prosecutors, inwhich case the evidence presented by the privateprosecutor can be considered as evidence for thePeople.

GENERAL RULE:In appeals, the Sol. Gen. has control. He mayabandon or discontinue the prosecution of the case inthe exercise of his sound discretion and may evenrecommend the acquittal of an accused when hebelieves that the evidence does not warrant his

conviction.

EXCEPTION: provided for in RA 8249 which states inpart that in all cases elevated to the Sandiganbayanand from the SB to the SC, the Office of theOmbudsman, through its special prosecutor, shallrepresent the People of the Philippines, except incases filed pursuant to EO Nos. 1, 2, 14 and 14-A,issued in 1986.

When it is said that the requirement of Art. 344 ofRPC is jurisdictional, what is meant is that it is thecomplaint that starts the prosecutory proceeding. It is

not the complaint which confers jurisdiction on thecourt to try the case.

People v. Yparragui re, G. R. No. 124391 (2000)Even when a complaint is defective for being

signed and filed by the chief of police and not by thecomplainant, the court may still acquire jurisdictionover the case. The complaint required in Art. 344 ofthe RPC is but a condition precedent to the exerciseby the proper authorities of the power to prosecutethe guilty parties. The complaint simply starts the


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prosecutory proceeding but does not conferjurisdiction in the court to try the case. Art. 344 is notdeterminative of the jurisdiction of courts over privateoffenses because the same is governed by theJudiciary Law and not the RPC.

Once the complaint is filed, does death of thecomplainant in a crime of adultery extinguish thecriminal liability of the accused? No. Theparticipation of the offended party in private crimes isessential not for the maintenance of the criminalaction but solely for the initiation thereof. Any pardongiven by the complainant or her death after the filingof the complaint would not deprive the court of the

jurisdiction to try the case.

REMEDIES OF THE OFFENDED PARTY IF THEPROSECUTOR REFUSES TO FILE ANINFORMATION:

1. File an action for mandamus, in case of graveabuse of discretion

2. Lodge a new complaint before; the courthaving jurisdiction over the offense;

3. Take up the matter with the Secretary ofJustice in accordance with the AdministrativeCode;

4. Institute administrative charges against erringprosecutor; and

5. File criminal action against the prosecutor withthe corresponding civil action for damages.

PROSECUTION OF PRIVATE CRIMES

Who may prosecute?1. Concubinage and adultery only by the

offended spouse who should have the status,capacity and legal representation at the time offiling of the complaint regardless of age; Bothguilty parties must be included in thecomplaint; The offended party did not consentto the offense nor pardoned the offenders.

2. Seduction, Abduction and Acts ofLasciviousness prosecuted exclusively andsuccessively by the following persons in thisorder:

a. By the offended woman;b. By the parents, grandparents or legal/

judicial guardians in that successive order,if the offended party is a minor or of age butsuffers from physical or mental disability;

c. By the State pursuant to the doctrine ofparens patriae, when the offended partydies or becomes incapacitated before shecould file the complaint and she has noknown parents, grandparents or guardians.

3. A defamation imputing to a person any of theforegoing crimes of concubinage, adultery,seduction, abduction, rape or acts oflasciviousness can be prosecuted only by theparty or parties defamed (Article 360, last

paragraph, Revised Penal Code).

NOTE: If the offended party is of legal age and doesnot suffer from physical or mental disability, shealone can file the complaint to the exclusion of all.

Who can give pardon?1. Concubinage and adultery only the

offended spouse not otherwise incapacitated,can validly extend the pardon or consentcontemplated therein.

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

discretion can validly pardon the accusedby herself if she has no parents or wherethe accused is her own father and hermother is dead

b. the parents, grandparents or guardian ofthe offended minor, in that order, cannotextend a valid pardon in said crimes withoutthe conformity of the offended party, even ifthe latter is a minor;

c. if the offended woman is of age and nototherwise incapacitated, only she canextend a valid pardon.

The pardon refers to pardon BEFORE filing of thecriminal complaint in court. Pardon effected after thefiling of the complaint in court does not prohibit thecontinuance of the prosecution of the offenseEXCEPT in case of marriage between the offenderand the offended party.

Pardon and Consent

PARDON CONSENT

Refers to past acts ofadultery.

Refers to future acts

In order to absolve the

accused from liabilitymust be extended to bothoffenders.

In order to absolve the

accused from liability, it issufficient even if grantedonly to the offendingspouse.

The SUBSEQUENT MARRIAGE between the partyand the accused extinguishes the criminal liability ofthe latter, together with that of the co-principals,accomplices and accessories, Except:

a. Where the marriage was invalid or contractedin bad faith in order to escape criminal liability.


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b. In private libel or the libelous imputation ofthe commission of the crimes of concubinage,adultery, seduction, abduction, rape or acts oflasciviousness and in slander by deed;

c. In multiple rape, insofar as the other accused

in the other acts of rape respectivelycommitted by them are concerned.

NOTE: The acquittal or death of one of the accusedin the crime of adultery does not bar the prosecutionof the other accused (People v. Topio, 35 Phil 901).

However, the death of the offended spouse beforethe filing of the complaint for adultery bars furtherprosecution, BUT if the offended spouse died afterthe filing of the corresponding complaint, his deathwill not prevent the proceeding from continuing to itsultimate conclusion.

Effect o f Desistance of ComplainantIt does not bar the People from prosecuting thecriminal action. BUT: it does operate as a waiver ofthe right to pursue civil indemnity.

An offended party in a criminal case has sufficientpersonality to file a special civil action for certiorari, inproper cases, even without the imprimatur of theState. In so doing, the complainant should not bringthe action in the name of the People of thePhilippines. The action may be prosecuted in thename of the said complainant (Perez v. HagonoyRural Bank, Inc. 327 SCRA 588).

Section 6. Sufficiency of complaint or information

ACOMPLAINTISSUFFICIENTIFITSTATES:1. the name of the accused2. the designation of the offense by a statute3. the acts or omission complained of as

constituting the offense4. the name of the offended party5. the approximate time of the commission of the

offense6. the place where the offense was committed.

People v. Dela Cruz, G.R. No. 137967(2001)The non-inclusion of some of the names of the

eyewitnesses in the information does not precludethe prosecutor from presenting them during trial.

PURPOSE: to safeguard the constitutional right of anaccused to be informed of the nature and cause ofthe accusation against him so that he can dulyprepare his defense.

NOTE: Substantial defect in the information cannotbe cured by evidence that would jeopardize theaccuseds right to be informed of the true nature ofthe offense he is charged with.

Section 7. Name of the accused

NAME OF THE ACCUSED1. If name is known: the name and surname of

the accused or any appellation or nickname bywhich he has been or is known.

2. If name cannot be ascertained: a fictitiousname with a statement that his true name isunknown.

If true name thereafter disclosed: such truename shall be inserted in the complaint orinformation and record.

3. While one or more persons, along withspecified and named accused, may be sued asJohn Does, an information against allaccused described as John Does is void, andan arrest warrant against them is also void.

NOTE: An error in the name of the accused is notreversible as long as his identity is sufficientlyestablished. This defect is curable at any stage ofthe proceedings as insertion of the real name of theaccused is merely a matter of form (People v. Padica,221 SCRA 362).

Section 8. Designation of the offense

THE INFORMATION OR COMPLAINT MUSTSTATE OR DESIGNATE THE FOLLOWINGWHENEVER POSSIBLE:

1. The designation of the offense given by thestatute. If there is no designation of theoffense, reference shall be made to the sectionof the statute punishing it.

2. The statement of the acts or omissionsconstituting the offense, in ordinary, conciseand particular words.

3. The specific qualifying and aggravatingcircumstances must be stated in ordinary andconcise language.

The qualifying and aggravating circumstances cannotbe appreciated even if proved unless alleged in theinformation (People v. Perreras, 362 SCRA 202).

In case of allegation of aggravating circumstance ofHABITUAL DELINQUENCY, it should not begenerally averred. The information must specify:


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a. the commission of the crimes;b. the last conviction or release;c. the other previous conviction or release of the

accused.

In rape cases, the concurrence of the minority of thevictim and her relationship with the offender is aspecial qualifying circumstance which should be bothalleged (People v. Cantos, 305 SCRA 786) andproved (People v. Manggasin)with certainty in orderto warrant the imposition of the [maximum] penalty.

DESIGNATION OF THE OFFENSE1. In case of a conflict between the designation of

the crime and the recital of facts constitutingthe offense, the latter prevails over the former.

2. The real question is not, did he commit a crimegiven in the law some technical and specificname, but did he perform the acts alleged inthe body of the information. If he did, it is of noconsequence to him, either as a matter ofprocedure or of substantive right, how the lawdenominates the crime.

It is not the designation of the offense in thecomplaint or information that is controlling (People v.Samillano, 56 SCRA 573); the facts alleged thereinand not its title determine the nature of the crime(People v. Magdowa, 73 Phil 512).

The accused may be convicted of a crime moreserious than that named in the title or preliminary part

if such crime is covered by the facts alleged in thebody of the information and its commission isestablished by evidence (Buhat v. Court of Appeals,265 SCRA 701).

An accused could not be convicted under one actwhen he is charged with a violation of another if thechange from one statue to the other involves:

a. a change in the theory of the trial;b. requires of the defendant a different defense;

orc. surprise the accused in any way. (U.S. v.

Panlilio, 28 Phil 603).

Section 9. Cause of the accusation

If one or more elements of the offense have not beenalleged in the information, the accused cannot beconvicted of the offense charged, even if the missingelements have been proved during the trial.

Even the accuseds entering a plea of guilty to suchdefective information will not cure the defect, nor

justify his conviction of the offense charged.

IMPORTANT: The new rule requires that thequalifying and aggravating circumstances be allegedin the information.

PURPOSE:1. To enable the court to pronounce a properjudgment;

2. To furnish the accused with such a descriptionof the charge as to enable him to make adefense;

3. As a protection against further prosecution forthe same cause. ( U.S. v. Karelsen).

RULE ON NEGATIVE AVERMENTS:1. Where the law alleged to have been violated:

prohibits generally acts therein defined

is intended to apply to all personsindiscriminately,

but prescribes certain limitations orexceptions from its violation the informationis sufficient if it alleges facts which theoffender did as constituting a violation oflaw, without explicitly negating theexception, as the exception is a matter ofdefense which the accused has to prove.

2. Where the law alleged to have been violated

applies only to specific classes of personsand special conditions

the exemptions from its violation are soincorporated in the language defining thecrime that the ingredients of the offensecannot be accurately and clearly set forth ifthe exemption is omitted, the informationmust show that the accused does not fallwithin the exemptions.

NOTE: When an exception or negative allegation isnot an ingredient of the offense and is a matter ofdefense, it need not be alleged (U.S. v. Chan Toco,12 Phil 262).

COMPLEX CRIMESWhere what is alleged in the information is a

complex crimeand the evidence fails to support thecharge as to one of the component offenses, thedefendant can be convicted of the offense proven.

Section 10. Place of commission of the offense

GENERAL RULE:A complaint or information is sufficient if it appearsfrom the allegation that the offense was committed orsome of its essential ingredients occurred at someplace, within the territorial jurisdiction of the court.


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EXCEPTION: When the place of commission is anessential element of the offense, the place ofcommission must be alleged with particularity e.g.trespass to dwelling, destructive arson, robbery in an

inhabited house.

PURPOSE: To show territorial jurisdiction of thecourt.

May conviction be had even if it appears that thecrime was committed not at the place alleged inthe information? Yes, provided the place of actualcommission was within the jurisdiction of the court.

UNLESS: the particular place of commission is anessential element of the offense charged.

Section 11. Date of commission o f the offense

What is the determinative factor in the resolution ofthe question involving a variance between theallegation and proof in respect of the date of thecrime? The element of surprise on the part of theaccused and his inability to defend himself properly

People v. Elpedes, G.R. No. 137106-07 (2001)The remedy against an indictment that fails to

allege the time of commission of the offense withsufficient definiteness is a motion for bill of particulars(Rule 116 10). The failure to move or specificationor the quashal of the information on any of the

grounds provided for in the Rules deprives theaccused of the right to object to evidence which couldbe lawfully introduced and admitted under aninformation of more or less general terms but whichsufficiently charges the accused with a definite crime.Besides, the exact date of the commission of thecrime is not an essential element of the crime.

People v. Baniguid, GR No. 137714 (2000)Death penalty is imposed for the crime of rape if

the victim is under 18 years of age and the offenderis a parent of the victim. For this purpose, the specialqualifying circumstances of the victims minority and

her relationship with the offender must be allegedand proved. The information must state the exact ageof the victim at the time of the commission of thecrime.

People v. De Vil la, G.R. No. 124639 (2001)Under the amendatory provisions of RA 7659

11, the attendance of facts that would mandate theimposition of the single indivisible penalty of deathare in the nature of qualifying circumstances which

should be alleged in the information and proved atthe trial. The New Rules of Criminal Procedure whichtook effect on Dec. 1, 2000, now specifically requirethat both qualifying and aggravating circumstances tobe alleged in the information.

Section 12. Name of the offended party

The rules require the complaint or information to statethe name and surname of the persons against whomor against whose property the offense was committedor any appellation or nickname by which such personhas been or is known and if there is no better way ofidentifying him, he must be described under afictitious name (Sayson v. People, 166 SCRA 693).

In crimes against property, if the name of theoffended party is unknown, the property must bedescribed with such particularity as to properlyidentify the particular offense charged.

To constitute larceny, robbery, embezzlement,obtaining money by false pretenses, maliciousmischief, etc., the property obtained must be that ofanother person, and indictment for such offense mustname the owner and a variance in this respectbetween the indictment and the proof will be fatal.

Section 13. Duplicity of the Offense

The information is defective when it charges two ormore DISTINCT or DIFFERENT offenses. A

complaint or information must charge only oneoffense, except when the law prescribes a singlepunishment for various offenses.

PURPOSE: To give the defendant the necessaryknowledge of the charge to enable him to prove hisdefense. The State should not heap upon thedefendant two or more charges which might confusehim in his defense.

WAIVERWhen the accused fails, BEFORE ARRAIGNMENT,to move for the quashal of the information which

charges 2 or more offenses, he thereby waives theobjection and may be found guilty of as manyoffenses as those charged and proved during thetrial.

Where the law with respect to an offense may becommitted in any of the different modes provided bylaw, the indictment in the information is sufficient ifthe offense is alleged to have been committed in one,two or more modes specified therein. The variousways of committing the offense should be considered


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as a description of only one offense and theinformation cannot be dismissed on the ground ofmultifariousness.

EXCEPTIONS TO THE RULE ON DUPLICITY

1. continuous crimes2. complex crimes3. special complex crimes4. crimes susceptible of being committed in

various modes5. crimes of which another offense is an

ingredient

REQUISITES OF CONTINUOUS CRIMES:1. Plurality of acts performed separately during a

period of time;2. Unity of penal provision infringed upon or

violated;3. Unity of criminal intent which means that two or

more violations of the same penal provisionare united on one and the same intent leadingto the perpetration of the same criminalpurpose or claim (People v. Ledesma).

Section 14. Amendment or Substitu tion

KINDS OF AMENDMENT OR SUBSTITUTIONa. BEFORETHEACCUSEDENTERSHISPLEA,

THEPROSECUTORMAY:

upgrade the offense

allege qualifying and aggravatingcircumstances or

change the offense charged

WITHOUT LEAVE OF COURT, provided thereis evidence thereon which has been presentedduring the preliminary investigation.

HOWEVER,PROSECUTORCANNOT:

downgrade the offense charged

exclude from the information a co-accusedwithout filing a motion to that effect, withnotice to the offended party, and subject tothe approval of the court. The court shallstate the reasons in resolving the motion

and copies thereof furnished all parties,especially the offended party.

b. AFTER THE PLEA-a. If it covers only formal amendment- leave of

court is obtained and such amendment isnot prejudicial to the rights of the accused.

b. But when a fact supervenes which changesthe nature of the crime charged in theinformation or upgrades it to a higher crime,in which case, there is a need for another

arraignment of the accused under theamended information.

Technically, paragraph 2 of Section 14 does not referto amendment, but to substitution of the complaint or

information by a new one. If the substitution is madebefore the accused enters his plea, the question ofdouble jeopardy does not arise. If the filing of newinformation is done after the plea and before

judgment on the ground that there has been amistake in charging the proper offense, the filingthereof may only be allowed if it will not place theaccused twice in jeopardy.

Test as to whether a defendant is prejudiced byan amendment:

whether a defense under the information as itoriginally stood would be available after theamendment is made, and

whether any evidence defendant might havewould be equally applicable to the informationin the new form as in the other.

GENERAL RULE:After arraignment, the prosecutor may no longeramend the information which changes the nature ofthe crime, as it will prejudice the substantial rights ofthe accused.

EXCEPTION: When a fact supervenes whichchanges the nature of the crime charged in theinformation or upgrades it to a higher crime, the

prosecutor, with leave of court, may amend theinformation to allege such supervening fact andupgrade the crime charged to the higher crimebrought about by such supervening fact.

HOWEVER: if the supervening event which changesthe nature of the crime to a more serious oneoccurred after the accused has been convicted,which makes the amendment of the information nolonger the remedy of the prosecution, the prosecutioncan and should charge the accused for such moreserious crime, without placing the accused in double

jeopardy, there being no identity of the offense

charged in the first information and in the secondone.

Section 14 applied only to original case and notto appealed case.

Gabionza v. CA, G.R. No. 140311 (2001)When amendments to informations may be

allowed:a. it does not deprive the accused of the right to

invoke prescription


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b. it does not deprive the accused of the right toinvoke prescription

c. it does not affect or alter the nature of theoffense originally charged

d. it does not involve a change in the basic theory

of the prosecution so as to require the accusedto undergo any material charge or modificationin his defense

e. it does not expose the accused to a chargewhich would call for a higher penalty

f. it does not cause surprise or deprive theaccused of an opportunity to meet the newaverment.

A defendant may file a counterclaim forinterpleader against the plaintiff and a third party alsoclaiming the subject matter of the suit..

LIMITATION TO THE RULE ON SUBSTITUTION:a. No judgment has yet been rendered;b. The accused cannot be convicted of the

offense charged or of any other offensenecessarily included therein;

c. The accused would not be placed in doublejeopardy.

Amendment vs. Substi tution

AMENDMENT SUBSTITUTION

May involve either formalor substantial changes.

Involves substantialchange from originalcharge.

Amendment before thepleas has been enteredcan be effected withoutleave of court.

Substitution ofinformation must be withleave of court as theoriginal information hasto be dismissed.

Amendment is only as toform, there is no need foranother preliminaryinvestigation and theretaking of the plea of theaccused.

Another preliminaryinvestigation is entailedand the accused has toplead anew to the newinformation.

An amended informationrefers to the sameoffense charged in theoriginal information or to

an offense whichnecessarily includes or isnecessarily included inthe original charge,hence substantialamendments to theinformation after the pleahas been taken cannotbe made over theobjection of the accused,

Requires or presupposesthat the new informationinvolves a differentoffense which does not

includes or is notnecessarily included inthe original charge,hence the accusedcannot claim double

jeopardy.

for if the original wouldbe withdrawn, theaccused could invokedouble jeopardy.

VARIANCE BETWEEN INDICTMENT AND PROOF:1. When the offense proved is less serious than

and is necessarily included in the offensecharged, in which case, the defendant shall beconvicted of the offense proved.

2. When the offense proves is more serious thanand includes the offense charged, in whichcase the defendant shall be convicted of theoffense charged;

3. When the offense proved is neither included in,nor does it include, the offense charged and isdifferent therefrom, in which case the courtshould dismiss the action and order the filing ofnew information charging the proper offense.(Substitution of information applies in thiscase).

Section15. Place where action i s to be instituted

VENUE IN CRIMINAL CASE IS JURISDICTIONAL,BEING AN ESSENTIAL ELEMENT OFJURISDICTION.

PURPOSE: Not to compel the defendant to move toand appear in a different court from that of theterritory where the crime was committed as it wouldcause him great inconvenience in looking for his

witnesses and other evidence in another place.

GENERAL RULE:Penal laws are territorial; hence Philippine courtshave no jurisdiction over crimes committed outsidethe Philippines.

EXCEPTIONS:1. Those provided in Article 2 of the Revised

Penal Code. Those who commit any of thecrimes contemplated therein can be tried byPhilippine courts.

2. Where an offense is committed on a railroad

train, in an aircraft or other public or privatevehicle in the course of its trip, the criminalaction shall be instituted and tried in the courtof any municipality or territory where suchtrain, aircraft or other vehicle passed during itstrip, including the place of its departure andarrival.

3. Where an offense is committed on board avessel in the course of its voyage, the criminalaction shall be instituted and tried in the courtof the first port of entry or of any municipality or


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territory where the vessel passed during suchvoyage, subject to the generally acceptedprinciples of international law.

4. Piracy has no territorial limits as it is a crimeagainst all mankind.

5. Libel the action may be instituted at theelection of the offended party in the province orcity:a. where the libelous article is printed or first

published;b. If one of the offended parties is a private

individual, where said private individualactually resides at the time of thecommission of the offense;

c. If the offended party is a public official,where the latter holds office at the time ofthe commission of the offense.

6. In exceptional circumstances- to ensure a fairtrial and impartial inquiry. The Supreme Courtshall have the power to order a change ofvenue or place of trial to avoid the miscarriageof justice (Sec. 5[4], Article VIII, 1987Constitution),

7. B.P. 22 cases- criminal action shall be filed inthe place where the check was dishonored.

VENUE IS JURISDICTIONALThe court has no jurisdiction to try an offensecommitted outside its territorial jurisdiction. It cannotbe waived or changed by the agreement of theparties or by consent of the defendant.

Section 16. Intervention o f the offended party incriminal action

GENERAL RULE:Offended party has the right to intervene by counselin the prosecution of the criminal action where thecivil action for recovery of civil liability is instituted inthe criminal action pursuant to Rule 111.

EXCEPTIONS:1. Where from the nature of the crime and the law

defining and punishing it, no civil liability arisesin favor of the offended party;

2. Where the offended party has waived the rightto civil indemnity; or

3. Where the offended party has alreadyinstituted an action.

Where the offended party withdrew a reservation tofile a separate civil action, the private prosecutor maystill intervene in the prosecution of the criminal case,by conducting the examination of witnesses underthe control of the prosecutor.

HOWEVER: Once the offended party has filed aseparate civil action arising from the crime, he maynot withdraw such civil case in order to intervene inthe criminal prosecution. He loses the right tointervene. He no longer has any standing in the

criminal case, except to be a prosecution witness.

Where a criminal action has been provisionallydismissed upon motion of the prosecutor, canthe case be revived upon motion of the offendedparty? No, because the offended party orcomplaining witness cannot act for the prosecutor.

RULE 111PROSECUTION OF CIVIL ACTION

Section 1. Institution of criminal and civil actions

GENERAL RULE:The institution or filing of the criminal action includesthe institution therein of the civil action for recovery ofcivil liability arising from the offense charged.

EXCEPTIONS: Where institution of criminal liabilitydoes not include civil liability the offended partyWAIVES the civil action; he RESERVES his right toinstitute the civil action separately; or heINSTITUTES THE CIVIL ACTION PRIOR TO THECRIMINAL ACTION.

The employer may not be held civilly liable for quasi-delict in the criminal action as ruled in Maniago v.Court of Appeals since quasi-delict is not deemedinstituted with the criminal. If at all, the only civilliability of the employer in the criminal action wouldbe his subsidiary liability under the Revised PenalCode.

WHEN RESERVATION SHALL BE MADE:a. Before the prosecution starts to present its

evidence; andb. Under circumstances affording the offended

party a reasonable opportunity to make such

reservation.

INSTANCES WHERE NO RESERVATION SHALLBE ALLOWED

1. Criminal action for violation of BP 22 unlessa separate civil action has been filed before theinstitution of the criminal action, no such civilaction can be instituted after the criminal actionhas been filed as the same has been includedtherein.


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2. A claim arising from an offense which iscognizable by the Sandiganbayan a civilaction filed prior to the criminal action has to betransferred to the subsequently filed criminalaction for joint hearing (Sec. 4 of PD1606 as

amended by RA 8249)

3. Tax cases (Sec. 7, par. b, no.1, RA 9282)

When the reservation of the right to institute theseparate civil actions shall be made: before theprosecution starts to present its evidence and undercircumstances affording the offended party areasonable opportunity to make such a reservation.

The rule requiring reservation to file a separate civilaction does not apply to civil actions which can befiled and prosecuted independently of the criminalaction, namely, those provided in Arts. 32, 33, 34 and2176 of the Civil Code.

Although the criminal and civil actions may be joinedin the criminal case, they are distinct from each other.The plaintiffs in the two actions are different.

THUS: even if the accused started serving hissentence within the 15-day period from thepromulgation of the judgment of conviction by thelower court, thereby making the judgment against himfinal, the complainant may, within the 15-dayreglementary period, still ask that the civil liability befixed by the court, if the judgment does not adjudicate

any civil liability, as the judgment regarding civilliability has not become final and the court still has

jurisdiction to adjudge the civil liability.

NOTE: Only civil liability arising from crime charged(cause of action arising from delict) as a felony isdeemed instituted. Civil liability arising from othersources of obligations (law, quasi-contract and quasi-delict) are no longer deemed instituted like thoseunder Article 32, 33, 34 and 2176 of the Civil Codewhich can be prosecuted even without reservation.

RULES ON FILING FEES

GENERAL RULE: No filing fees are required foramounts of actual damages.

EXCEPTION: Criminal action for violation of BP 22which is deemed to include the corresponding civilaction. The offended party shall, upon the filing of thecriminal and civil actions, pay in full the filing feesbased on the face value of the check as the actualdamages.

Purpose of Exception: to prevent the offended partyfrom using the prosecutors office and the court asvehicles for recovery of the face value of the check,without paying the corresponding filing fees therefor.

With respect to damages other than actual, if thesedamages are specified in the complaint orinformation, the corresponding filing fees should bepaid, otherwise, the trial court will not acquire

jurisdiction over such other damages.

Where moral, exemplary and other damages are notspecified in the complaint or information, the grantand amount thereof are left to the sound discretion ofthe trial court, the corresponding filing fees need notbe paid and shall simply constitute a first lien on the

judgment.

NOTE: Counterclaims, cross-claims, third-partycomplaints are no longer allowed in a criminalproceeding. Any claim which could have been thesubject thereof maybe litigated in a separate civilaction.

In an appeal of a criminal case, the appellate courtmay impose additional damages or increase ordecrease the amounts of damages upon theaccused-appellant.

HOWEVER, additional penalties cannot be imposedupon a co-accused who did not appeal, butmodifications of the judgment beneficial to him are

considered in his favor.

The offended party in a criminal case may appeal thecivil aspect despite the acquittal of the accused.Where the trial court convicted the accused, butdismissed the civil action instituted therein, theoffended party may appeal the dismissal to the CA.

Compromise on civil aspect:The offended party may compromise the civil aspectof a crime, provided that it must be entered before orduring the litigation, and not after final judgment. Acompromise on the civil aspect is valid even if it turns

out to be unsatisfactory either to one or both of theparties.

IMPORTANT: Section 1, Rule 111 now expresslyprovides that no counterclaim, cross-claim or third-party complaint may be filed by the accused in thecriminal case, but any cause of action which couldhave been subject thereof may be litigated in aseparate civil action.

REASONS:


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a. the counterclaim of the accused willunnecessarily complicate and confuse thecriminal proceedings;

b. the trial court should confine itself to thecriminal aspect and the possible civil liability of

the accused arising out of the crime.

Section 2. When separate civil action issuspended

Primacy of Criminal Action over Civil ActionAfter the filing of the criminal action, the civil actionwhich has been reserved cannot be instituted untilfinal judgment has been rendered in the criminalaction

If the civil action is instituted before the criminalaction and the criminal action is subsequentlycommenced, the pending civil action shall besuspended until final judgment of the criminal actionhas been rendered.

EXCEPTIONS:1. In cases of independent civil actions based

upon Article 32, 33, 34 and 2176 of the CivilCode;

2. In cases where the civil action presents aprejudicial question; and

3. Where the civil action is not one intended toenforce the civil liability arising from theoffense.

CONSOLIDATION OF CRIMINAL AND CIVILCASESBefore judgment on the merit is rendered in the civilaction, the same may, upon motion of the offendedparty be consolidated with the criminal action in thecourt trying the criminal action. This is a modificationon the rule on primacy of criminal action.

The consolidation must be effected in the criminalcourt, irrespective of the nature of the offense, theamount of the civil claim or the rank of the court tryingthe civil case.

In cases where consolidation is given due course, theevidence presented and admitted in the civil caseshall be deemed automatically reproduced in thecriminal action.

The consolidated criminal and civil cases shall betried and decided jointly.

NOTE: Article 29 of the Civil Code merelyemphasizes that a civil action for damages is notprecluded by the acquittal of an accused for the same

criminal act or omission. It does not state that theremedy can be availed of only in a separate civilaction.

ACQUITTAL IN A CRIMINAL CASE DOES NOT

BAR THE FILING OF THE CIVIL CASE WHERE:1. The acquittal is based on reasonable doubt, ifthe civil case has been reserved.

2. The decision contains a declaration that theliability is not criminal but only civil in nature.

3. The civil liability is not derived from or basedon the criminal act of which the accused isacquitted. (Sapiera v. Court of Appeals, 314SCRA 370)

Section 3. When civil action may proceedindependently

Prior reservation is not necessary to file separate civilaction under Arts. 32, 33, 34 and 2176 of the CivilCode. The phrase which has been reserved thathas caused conflicting rulings in the past has nowbeen deleted.

Actions based on quasi-delict may be filedindependently of the criminal action regardless of theresult of the criminal action, except that a plaintiffcannot recover damages twice for the same act oromission of the defendant.

PURPOSE: To make the courts disposition of thecriminal case of no effect whatsoever on the separate

civil case.

Section 4. Effect of death on c ivil actions

EFFECT OF DEATH OF THE ACCUSED ON CIVILACTIONS

1. After arraignment and during the pendencyof the criminal action:

GENERAL RULE:Death extinguishesthe civil liability arising fromdelict or the offense

EXCEPT: where civil liability is predicated onother sources of obligations such as law,contract, quasi-contract and quasi-delict.

If such civil action which survives is impliedlyinstituted in the criminal action, the legalrepresentative or heir of the deceased shall besubstituted for the deceased. The criminalcase is reduced to a civil action.


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However, if the civil action has been reservedand subsequently filed or such civil action hasbeen instituted, when the accused died, thensuch civil action will proceed and substitutionof parties shall be ordered by the court

pursuant to Sec.16 Rule 3 of the Rules ofCourt.

2. Beforearraignment:

The civil action impliedly instituted in thecriminal action shall be dismissed withoutprejudice to the offended partys filing a civilaction against the administrator of the estate ofthe deceased.

NOTE: The independent civil action institutedunder Section 3 of this Rule or which thereafteris instituted to enforce liability arising fromother sources of obligation may be continuedagainst the estate or legal representative of theaccused after proper substitution, or againstsaid estate, as the case may be.

3. Pending appeal of his convict ion:

It extinguishes his criminal liability as well asthe civil liability based solely thereon.

4. Prior to final judgment: It terminates his criminal liability and only thecivil liability directly arising from and based

solely on the offense committed.

Section 5. Judgment in ci vil action not a bar

The judgment in civil actions based on Arts. 32, 33,34 and 2176 absolving the defendant from civilliability does not bar the criminal action.

NOTE: Where the criminal case was dismissedbefore trial because the offended party executed anaffidavit of desistance, the civil action thereof issimilarly dismissed.

Section 6. Suspension by reason of prejudicialquestion

PREJUDICIAL QUESTIONIt is one which arises in a case, the resolution ofwhich is a logical antecedent of the issue involvedtherein and the cognizance of which pertains toanother tribunal.

PURPOSE: To avoid two conflicting decisions.

NOTE: A prejudicial question is based on a factdistinct and separate from the crime but so intimatelyconnected with it that it determines the guilt orinnocence of the accused.

PREJUDICIAL QUESTION1. The prejudicial question may be raised duringthe preliminary investigation of the offense orin court before the prosecution rests its case.

2. The suspension of the criminal case due to aprejudicial question is only a procedural matter,and is subject to a waiver by virtue of prior actsof the accused.

3. There is no prejudicial question where onecase is administrative and the other is civil.

Time to PleadWhen the criminal action has been filed in court fortrial, the petition to suspend shall be filed in the samecriminal action at any time before the prosecutionrests.

WHERE TO FILE PETITION FOR SUSPENSION BYREASON OF PREJUDICIAL QUESTION

1. Office of the Prosecutor; or2. Court where the criminal action has been filed

for trial at any time before the prosecutionrests.

Section 7. Elements of prejudic ial question

ELEMENTS OF A PREJUDICIAL QUESTION

1. The civil action must be instituted PRIOR tothe criminal action;

2. The civil action involves an issue similar orintimately related to the issue raised in thesubsequent criminal action;

3. The resolution of such issue determineswhether or not the criminal action mayproceed.

RULE 112PRELIMINARY INVESTIGATION

Section 1. Preliminary investigation defined;when required

PRELIMINARY INVESTIGATIONIt is an inquiry or proceeding to determine whetherthere exists sufficient ground to engender a well-founded belief that a crime has been committed andthat the respondent is probably guilty thereof andshould be held for trial.


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PURPOSES:1. To determine whether a crime has been

committed and whether there is probablecause to believe that the accused is guiltythereof.

2. To preserve evidence and keep the witnesseswithin the control of the State.3. To determine the amount of bail, if the offense

is bailable.

Preliminary investigation is required to be conductedBEFORE the filing of a complaint or information foran offense where the penalty prescribed by law is atleast 4 years, 1 months and 7 day without regard tothe fine.

It is not part of the trial of the criminal action in court.Nor is its record part of the record of the case in theRTC. The dismissal of the case by the investigatorwill not constitute double jeopardy and will not bar thefiling of another complaint for the same offense, but ifre-filed, the accused is entitled to another preliminaryinvestigation (U.S. v. Marfori, 35 Phil 666).

It is subject to the requirements of both substantiveand procedural due process.

The right of an accused to a preliminary investigationis not a constitutional but merely a statutory right.Nonetheless, it is a component part of due process incriminal justice and is a substantive right.

A personal right and may be waived expressly or byimplication.

Lack of preliminary investigation is not a ground toquash or dismiss a complaint or information, nor doesit affect the courts jurisdiction. When there is nopreliminary investigation, the accused must invoke itat the first opportunity and the court should hold inabeyance or suspend proceedings and remand thecase to the office of the prosecutor for him to conductPI.

WAIVER:

1. Failure to claim it before the accused pleaded.2. Silence of the accused.3. Failure to request it within 5 days from the time

he learns of the filing of the complaint orinformation in those instances where theaccused is lawfully arrested without a warrant.

Absence of preliminary investigation does not affectthe jurisdiction of the court or invalidate theinformation if no objection was raised by the accused.

If an objection was raised, the court, instead ofdismissing the complaint or information should orderthe conduct of such investigation (Doromal v.Sandiganbayan, 117 SCRA 354).

REMEDIES OF THE ACCUSED IF THERE WAS NOPRELIMINARY INVESTIGATION:1. Refuse to enter a plea upon arraignment and

object to further proceedings upon suchground.

2. Insist on a preliminary investigation.3. Raise lack of preliminary investigation as error

on appeal.4. File a petition for certiorari.5. File for petition for prohibition.

There is NO right of preliminary investigation when aperson is lawfully arrested without a warrant unlessthere is a waiver of the provisions of Article 125 of theRevised Penal Code.

HOWEVER, THE ACCUSED CAN ASK FORPRELIMINARY INVESTIGATION IN THEFOLLOWING CASES:

1. If a person is arrested, he can ask forpreliminary investigation BEFORE the filing ofthe complaint/ information BUT he must sign awaiver in accordance with Article 125, RPC.

2. AFTER the filing of the information/ complaint,the accused may, within 5 days from the timehe learns of its filing ask for preliminary

investigation.

NOTE: This Rule has been partially amended by AM05-0-8-26-SC. The amendments took effect onOctober 3, 2005. The amendment removed theconduct of preliminary investigation from the judgesof the first level courts.

Section 2. Officers authorized to conductpreliminary investigation

OFFICERS AUTHORIZED TO CONDUCTPRELIMINARY INVESTIGATION

1. provincial or city prosecutor and theirassistants

2. National and regional state prosecutors3. Such other officers as may be authorized by

law such as the COMELEC, Ombudsman andPCGG

4. Judges of RTCs

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to conduct PI, as the officers authorized to do so arethe prosecutors.

TWO TYPES OF OFFENSES MAY BE FILED INTHE MTC FOR PRELIMINARY INVESTIGATION:

1. a case cognizable by the RTC may be filedwith the MTC for PI;2. even if it is cognizable by the MTC because it

is an offense where the penalty prescribed bylaw is at least 4 years 2 months and 1 day.

Regarding offenses falling within the originaljurisdiction of the Sandiganbayan :Prosecutors or municipal trial court judges conductingPI of offenses falling within the original jurisdiction ofthe Sandiganbayan shall, after their conclusion,transmit the records and their resolutions to theOmbudsman or his deputy for appropriate action.

Moreover, the prosecutor or judge cannot dismiss thecomplaint without the prior written authority of theOmbudsman or his deputy, nor can the prosecutorfile an information with the Sandiganbayan withoutbeing deputized by, and without prior written authorityof, the Ombudsman or his deputy.

Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001)The Ombudsman is clothed with authority to

conduct preliminary investigation and to prosecute allcriminal cases involving public officers andemployees, not only those within the jurisdiction ofthe Sandiganbayan, but those within the jurisdiction

of the regular courts as well. 15 of RA 6770(Ombudsman Act of 1989) does not make anydistinction. Any illegal act or omission of any publicofficial is broad enough to embrace any crimecommitted by a public officer or employee. Suchgrant of primary jurisdiction over cases cognizable bythe Sandiganbayan does not necessarily imply theexclusion from its jurisdiction of cases involvingpublic officers and employees cognizable by theother courts.

Roxas v. Vasquez, G.R. No. 114944 (2001)In criminal prosecutions, a reinvestigation, like an

appeal, renders the entire case open for review,regardless of whether a motion for reconsideration orreinvestigation was sought. The Ombudsman shouldnot be limited in its review. It is clear from R. A. 6770that the Ombudsman may motu propio conduct areinvestigation.

ELECTION OFFENSES:The exclusive jurisdiction of the Comelec toinvestigate and prosecute election offenses inheres

even if the offender is a private individual or publicofficer or employee, and in the latter instance,irrespective of whether the offense is committed inrelation to his official duties or not. In other words, itis the nature of the offense, namely, an election

offense as defined in the Omnibus Election Code andin other election laws, and not the personality of theoffender that matters.

THE OMBUDSMAN:The power of the Ombudsman to make investigationextends to any illegal act or omission of any publicofficial, whether or not the same is committed inrelation to his office.

Preliminary investigation by the Ombudsman islimited to cases cognizable by the Sandiganbayanand must be conducted pursuant to Rule 11 of theRules of Procedure of the Office of the Ombudsman.

Section 4(d) of Administrative Order No. 07 disallowsthe filing of a motion to quash or dismiss a complaintfiled with the Ombudsman, except on the ground oflack of jurisdiction.

Which remedy may an aggrieved party avail ofagainst resolutions of the Ombudsman incriminal or non-administrative cases?The law issilent. Hence, appeal is not available as a remedybecause the right to appeal is a statutory privilegeand may be availed of only if there is a statute to thateffect. However, an aggrieved party is not without

remedy, as he can resort to the special civil action ofcertiorari under Rule 65.

THE OMBUDSMAN DOES NOT HAVE THEFOLLOWING POWERS:

1. to prosecute before the Sandiganbayan anyimpeachable officers with any offense whichcarries with it the penalty of removal fromoffice, or any penalty service of which wouldamount to removal from office because byconstitutional mandate, they can only beremoved from office on impeachment for, andconviction of, culpable violation of the

Constitution, treason, bribery, graft andcorruption, other high crimes, or betrayal ofpublic trust

2. to prosecute public officers or employees whohave committed election offenses.

3. to file an information for an offense cognizableby the regular courts.

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1. It does not warrant the quashal of theinformation

Filing of the complaintaccompanied by the affidavits andsupporting documents.2. It does not affect the courts jurisdiction or the

validity of the information.

Section 3. Procedure Within 10 days after the filing, theinvestigating officer shall eitherdismiss or issue subpoena.

PROCEDURE1. By reason of the abbreviated nature of

Preliminary Investigation, a dismissal of thecharges as a result thereof is not equivalent toa judicial pronouncement of acquittal. If subpoena is issued, respondent

shall submit a counter-affidavit andother supporting documents within10 days from receipt thereof.

2. The accused or respondent in a criminalprosecution may avail himself of discoveryremedies either during preliminaryinvestigation or when the information hasalready been filed in court.

3. A motion to dismiss is now a prohibitedpleading during preliminary investigation.

Hearing (optional). It shall be heldwithin 10 days from submission ofcounter-affidavits or from theexpiration of the period of their

4. The respondent is now required to submitcounter-affidavits and other supportingdocuments relied upon by him for his defense.

5. The respondent now has the right to examinethe evidence submitted by the complainant ofwhich he may not have been furnished and toobtain copies thereof at his expense.

submission.

Resolution of investigatingprosecutor.

If respondent cannot be subpoenaed, or ifsubpoenaed but does not submit his counter-affidavit

within 10 days, investigating officer shall resolve thecomplaint based on the evidence presented by thecomplainant.

RIGHTS OF RESPONDENT IN A PRELIMINARYINVESTIGATION:

1. To submit counter-affidavit.2. To examine the evidence submitted by the

complainant3. To be present in the clarificatory hearing.

NOTE: The Rules does not require the presence ofthe respondent in the Preliminary Investigation. What

is required is that he be given the opportunity tocontrovert the evidence of the complainant bysubmitting counter-affidavits.

Section 4. Resolution of investigating prosecutorand its review

Resolution of investigating prosecutor and itsreview

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been said that at this stage, unlike judges who aremandated to display cold neutrality in hearing cases,the prosecutors are not required to divest themselvesof their personal convictions and refrain fromexhibiting partiality. But while he may strike hard

blows, he is not at liberty to strike foul ones.

HE SHALL CERTIFY UNDER OATH IN THEINFORMATION THAT:

1. he or an authorized officer personallyexamined the complainant and his witnesses;

2. there is reasonable ground a crime has beencommitted and the accused is probably guiltythereof;

3. the accused was informed of the complaint andthe evidence against him; and

4. the accused was given an opportunity to

submit controverting evidence.

No complaint or information may be filed ordismissed by an investigating prosecutor without theprior written authority or approval of the provincial orcity prosecutor or the Ombudsman or his deputy.

EFFECTS OF EXCLUSION OF OTHER PERSONSFROM THE INFORMATION

1. If during the trial, evidence is shown that suchpersons should have been charged, the fact

that they were not included in the informationdoes not relieve them of criminal liability, andthey can be subsequently prosecuted.

2. The accused who has been charged with theoffense is not allowed to escape punishment

merely because it develops in the course of thetrial that there were other guilty participants inthe crime.If there is probable

cause to holdrespondent liable,prepare resolution.

If noprobablecauseexists,dismiss thecase

Within 5 days from resolution,forward the record of the case to1) provincial or city prosecutor;2) chief state prosecutor; 3)Ombudsman or his deputy, incases cognizable by theSandiganbayan in the exerciseof its original jurisdiction.

The abovementioned officersshall act on the resolutionwithin10 days from receiptthereof and shall immediatelyinform the parties of such action.

3. It does not vitiate the validity of the information.Neither is the same a ground for a motion toquash.

Role of Secretary Of JusticeThe Secretary of Justice is not prevented fromentertaining an appeal from the accused or from theoffended party even after the information has beenfiled and the trial court has arraigned the accused.Section 4 of DOJ 223 should be construed as merelyenjoining the Secretary of Justice to refrain, as far aspracticable, from entertaining a petition for review orappeal from the action of the prosecutor once thecomplaint or information is filed in court. If theSecretary reverses the ruling of the prosecutor, thelatter has to file the necessary motion to dismiss thecomplaint or information, the grant or denial of whichis subject to the discretion of the trial court.

EFFECT IF THE INFORMATION IS FILED BYSOMEONE NOT AUTHORIZED BY LAWThe court does not acquire jurisdiction. Theaccuseds failure to assert lack of authority on thepart of the prosecutor in filing the information does

not constitute a waiver thereof.

The prosecutor is required to resolve the complaintbased on the evidence presented by the complainantin the event that the respondent cannot besubpoenaed or the respondent, if subpoenaed, doesnot submit a counter-affidavit within the 10-dayperiod.

Section 5. Resolution o f investigating judge andits review (DELETED)

RESOLUTION OF INVESTIGATING JUDGE AND

ITS REVIEWA.M. No. 05-8-26-SC:

All First Level Courts shall continue with thepreliminary investigation of cases pending with themand terminate them not later than December 31,2005.

Upon the effectivity of these amendments, First LevelCourts shall no longer accept new cases for


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preliminary investigation which fall under theexclusive jurisdiction of courts of other levels.

These amendments shall take effect on October 3,2005 following their publication in a newspaper of

general circulation not later than September 15,2005.

Section 6. When warrant of arrest may issue

WHEN WARRANT OF ARREST MAY ISSUEIf the judge finds probable cause, he shall issue awarrant of arrest or a commitment order if theaccused had already been arrested and hold him fortrial. If the judge is satisfied that there is no necessityfor placing the accused under custody, he may issuesummons instead of warrant of arrest.

Judges of the RTCs and inferior courts need notpersonally examine the complainant and hiswitnesses in the determination of probable cause forthe issuance of the warrant of arrest. He is onlyrequired to:

1. Personally evaluate the report and supportingdocuments submitted by the prosecutor;

2. On the basis of the report, he may:a. Dismissb. Issue a warrantc. Require further affidavits

INVALID:A warrant issued by the judge solely on thebasis of the report and recommendation of the

investigating prosecutor, without personallydetermining the existence of probable cause byindependently examining sufficient evidencesubmitted by the parties during the PreliminaryInvestigation.

Effect of a finding of probable causeIt merely binds over the suspect to stand trial. It isnot a pronouncement of guilt.

WHAT THE ACCUSED, WHO BELIEVES THATTHERE IS NO PROBABLE CAUSE TO HOLDHIM FOR TRIAL, MAY DO:

1. to file with the trial court a motion to dismiss onsuch ground or for the determination ofprobable cause.

2. if the warrant of arrest has been issued, theaccused may file a motion to quash the arrestwarrant or to recall the same on the ground oflack of probable cause.

Where an information has already been filed incourt, and the Secretary of Justice reversed theprosecutors finding of probable cause, what

should the trial court do upon the prosecutorsmotion to dismiss? He must make his ownassessment of the evidence and not just rely on theconclusion of the prosecutor; otherwise the courtbecomes a mere rubber stamp.

REINVESTIGATION:Once the complaint or information is filed in court,any motion for reinvestigation is addressed to thesound discretion of the court.

While the trial court judge has the power to order thereinvestigation of the case by the prosecutor, he maynot, before the prosecutor concluded thereinvestigation, recall said order, set the case forarraignment and trial, without gravely abusing hisdiscretion.

MUNICIPAL JUDGE MAY ISSUE ARRESTWARRANT BEFORE CONCLUSION OFPRELIMINARY INVESTIGATION IF:

1. he finds that probable cause exists and2. there is a necessity of placing respondent

under immediate custody.

IMPORTANT: The rule is now that the investigatingjudges power to order the arrest of the accused islimited to instances in which there is a necessity forplacing him in custody in order not to frustrate theends of justice. Thus, even if the judge finds probablecause, he cannot, on such ground alone, issue awarrant of arrest. He must further find there is a

necessity of placing the accused under immediatecustody in order not to frustrate the ends of justice.

The investigating judge has no power to reduceor change the crime charged in order to justifythe grant of bail to the accused. The powerbelongs to the prosecutor.

After the conclusion of his PI, the judge has totransmit to the provincial prosecutor his resolutionand entire records of the case, regardless of whetherhe finds a probable cause or sufficient ground toissue a warrant of arrest.

Section 7. When accused lawfully arrestedwithout warrant

GENERAL RULE:No complaint or information shall be filed for anoffense which is penalized by imprisonment of notless than 4 years, 2 months and 1 day without PI.

EXCEPTION: When the accused has been lawfullyarrested without warrant, in which case, an inquest


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must be conducted by an inquest prosecutor who willdetermine whether his arrest without warrant islawful. The inquest prosecutor may order the releaseof the arrested person if he finds no sufficient groundto hold him without prejudice to conducting further

investigation, or file complaint or information withinthe period specified in Art. 125 of the RPC.

In case a person is arrested without a warrant, acomplaint or information may only be filed after aninquest conducted in accordance with existing rules.

Provided: that in the absence or unavailability of aninquest prosecutor, the complaint may be filed by theoffended party or a peace officer directly with theproper court on the basis of the affidavit of theoffended party or arresting officer or person.

Before the filing of a complaint or information, theperson arrested without a warrant may ask for apreliminary investigation by a proper officer, but hemust sign a waiver of the provisions of Art. 125 of theRPC.

If the accused allows himself to be arraigned withoutasking for a preliminary investigation, he is deemedto have waived the right to such PI.

When the complaint or information was filed withoutPI, the accused may, within 5 days from the time helearns of the filing of the information ask for apreliminary investigation with the same right to

adduce evidence in his favor in the mannerprescribed in this Rule.

NOTE: The 5 day period is MANDATORY, failure tofile the motion within the said period amounts to awaiver of the right to ask for preliminary investigation.

Where the information was amended without a newPI having been conducted, the 5-day period iscomputed from the time the accused learns of thefiling of said amended information.

Where the trial court has granted a motion for

reinvestigation, it must hold in abeyance thearraignment and trial of the accused until theprosecutor shall have conducted and made a reporton the result of the reinvestigation.

Right to Bail Pending Preliminary InvestigationA person lawfully arrested may post bail before thefiling of the information or even after the filing withoutwaiving his right to PI, provided that he asks for a PIby the proper officer within the period fixed in the saidrule. (People v. Court of Appeals, May 29, 1995).

Section 8. Records

An information or complaint filed in court shall besupported by the affidavits and counter-affidavits of

the parties and their witnesses, together with theother supporting evidence and the resolution on thecase.

Records of the preliminary investigation shall NOTautomatically form part of the records of the case.Courts are not compelled to take judicial noticethereof. It must be introduced as evidence.

Section 9. Cases not requiring preliminaryinvestigation nor covered by the Rule onSummary Procedure

Cases where the punishment does not exceed 4years 2 months and 1 day.

PROCEDURE TO BE FOLLOWED:a. Evaluate the evidence presented;b. Conduct searching questions or answers;c. Require the submission of additional evidence.

For cases under the Revised Rules on SummaryProcedure, no warrant shall be issued except wherethe accused fails to appear after being summoned.

CONDITIONS FOR THE ISSUANCE OF WARRANTOF ARREST:

1. Must examine in writing and under oath thecomplainant and his witnesses by searchingquestions and answers.

2. Be satisfied that a probable cause exists.3. That there is a need to place respondent under

immediate custody in order not to frustrate theends of justice.

RULE 113ARREST

Section 1. Definition of Arrest

ARRESTIt is the taking of a person into custody in order thathe may be bound to answer for the commission of anoffense.


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The application of actual force, manual touching ofthe body, physical restraint or formal declaration ofarrest is not required. Arrest includes submission tothe custody of the person making the arrest.

Section 2. Arrest; how made

MODES OF ARREST:1. Arrest by virtue of a warrant2. Arrest without a warrant under exceptional

circumstances as may be provided by statute

ESSENTIAL REQUISITES OF A VALID WARRANTOF ARREST:

1. It must be issued upon probable cause whichmust be determined personally by a judge afterexamination under oath or affirmation of thecomplainant and the witnesses he mayproduce.

2. The warrant must particularly describe theperson to be seized.

A warrant of arrest has no expiry date. It remainsvalid until arrest is effected or the warrant is lifted.

Section 3. Duty o f arresting of ficer

1. Arrest the accused2. Deliver him to the nearest police station or jail

without unnecessary delay

Section 4. Execution of warrant

THE JUDGE ISSUES A WARRANT OF ARREST IN2 INSTANCES:

1. Upon the filing of the information by theprosecutor.

In issuing this kind of warrant, the judgedoes not personally examine thecomplainant and the witnesses he mayproduce, but he merely evaluatespersonally the report and supportingdocuments and other evidence adducedduring the preliminary investigation andsubmitted to him by the prosecutor, and if

he finds probable cause on the basisthereof he issues the warrant for the arrestof the accused.

2. Upon application of a peace officer.

In this kind of warrant, the judge mustpersonally examine the applicant and thewitnesses he may produce, to find outwhether there exists probable cause,otherwise the warrant issued is null andvoid. He must subject the complainant andthe witnesses to searching questions. The

reason for this is there is yet no evidenceon record upon which he may determinethe existence of probable cause.

A warrant of arrest has no expiry date. It remains

valid until arrest is effected or the warrant is lifted.

However, Sec. 4 of Rule 113 requires the head of theoffice who applied for w

11514694-Ateneo-2007-Criminal-Procedure.pdf

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