2002 Criminal Procedure Part 1 Copy

8/6/2019 2002 Criminal Procedure Part 1 Copy

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R E M E D I A L L A W ( C R I M I N A L P R O C E D U R E )R E V I E W E R

PRELIMINARIES

1. Jurisdiction is determined by the extent of the penalty which the law imposes,on the basis of the facts as recited in the complaint or information constitutive of

the offense charged.

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 offense than that charged in theinformation,

the subsequent happening of events, although of a character which wouldhave prevented jurisdiction from attaching in the first instance.

2. General Rule: Jurisdiction of a court to try criminal action is to be determined by thelaw at the time of the institution of the action.

Exception: where the statute expressly provides, or is construed that it isintended to operate to actions pending before its enactment, in which case, thecourt where the criminal action is pending is ousted of jurisdiction and thepending action will have to be transferred to the other tribunal which will continuethe proceeding.

3. Venue is jurisdictional.

Thus: Action must be instituted and tried in the municipality or territory where the

offense has been committed or where any one of the essential ingredientsthereof took place.

4. General Rule: the question of jurisdiction may be raised at any stage of theproceedings.

Exception: may not be raised for the first time on appeal, where there has beenestoppel and laches on the party who raises the question.

RULE 110 PROSECUTION OF OFFENSES

Institution of Criminal Actions

1. For offenses whichrequire preliminary investigation:

By filing the complaint with the proper officer for preliminary investigation.

Refers to a complaint-affidavit, and is different from the complaint defined inSection 3 of Rule 110.

These offenses are those where the penalty prescribed by law is at least 4years, 2 months and 1 day of imprisonment without regard to the fine.

2. For all other offenses, or for offenses which are penalized by law with lowerthan at least 4 years, 2 months and 1 day without regard to the fine:

Instituted directly with the MTC and MCTC, or the complaint is filed with theOffice of the Prosecutor.

In Manila and other chartered cities, the complaint shall be filed with the Office ofthe Prosecutor unless otherwise provided in their charters.

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3. Take Note: A complaint for offenses cognizable by the RTC is NOT filed directly withthe RTC either for purposes of preliminary investigation or for commencement of thecriminal prosecution.

4. The institution of the criminal action interrupts the running of the period ofprescription of the offense charged

Unless: otherwise provided in special laws.

Act No. 3323 governs the prescriptive periods of violations of special laws, oroffenses other than those penalized under the Revised Penal Code.

5. The filing of a complaint for purposes of preliminary investigation starts theprosecution process.

The complaint or information

1. Requisites: in writing

in the name of the People of the Philippines

Against all persons who appear to be responsible for the offense involved.

2. Who is the real offended party? The People of the Philippines, but since the crimeis also an outrage against the offended party, he is entitled to intervene in its prosecutionin cases where the civil action is impliedly instituted therein.

Complaint

1. Definition: A complaint is a sworn written statement charging a person with an

offense, subscribed by the offended party, any peace officer, or other public officercharged with the enforcement of the law violated.

2. The complaint as defined under Section 3 is different from the complaint filed with theProsecutors Office.

3. The complaint filed with the Prosecutors Office, from which the latter mayinitiate a preliminary investigation, refers to:

any written complaint

filed by an offended party or not

not necessarily under oath, except in 2 instances:

complaint for commission of an offense which cannot be prosecuted de officioor is private in nature

where the law requires that it is to be started by a complaint sworn to by theoffended party, or when it pertains to those which need to be enforced byspecified public officers.

4. Under the Rule on Summary Procedure:

a complaint may be directly filed in the MTC, provided that in Metro Manila and inchartered cities, the criminal action may only be commenced by the filing ofinformation, which means by the prosecutor, except when the offense cannot beprosecuted de officio as in private crimes.

Information

1. Definition: An accusation in writing a person with an offense, subscribed by theprosecutor and filed with the court.

2. How is an Information different from a Complaint? Unlike a complaint, whichrequires that it be under oath and is filed either in the MTC or with the provincial/cityprosecutors office, the information does not have to be under oath and is always filed in

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court. All that is required is that it be subscribed or signed by the fiscal or prosecutor,which is an indispensable requirement.

Who must prosecute criminal actions

1. May a criminal prosecution be restrained by injunction?

General Rule: No.

Reason: Public interest requires that criminal acts be immediately investigatedand prosecuted for the protection of society.

Exceptions:

where injunction is justified by the necessity to afford protection to theconstitutional rights of the accused

when necessary for the orderly administration of justice or to avoidoppression or multiplicity of actions

when there is a prejudicial question which is sub judice

when the acts of the officer are without or in excess of authority

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

when double jeopardy is clearly apparent

where the court has no jurisdiction over the offense

where it is a case of persecution rather than prosecution

where the charges are manifestly false and motivated by the lust forvengeance

when there is clearly no prima facie case against the accused and themotion to quash on that ground has been denied

preliminary injunction has been issued by the Supreme Court to preventthe threatened unlawful arrest of petitioners.

2. Prior to the filing of the information in court, the prosecutor has full control of the

case. He decides who should be charged in court and who should be excluded from theinformation.

However:His decision on the matter is subject to review by:

the Secretary of Justice who exercises supervision and control over hisactions and who may sustain, modify or set aside his resolution on thematter

in appropriate cases, by the courts when he acts with grave abuse ofdiscretion amounting to lack of jurisdiction.

3. Private Prosecutor Participation:

May a public prosecutor allow a private prosecutor to actively handle the conductof the trial?Yes, where the civil action arising from the crime is deemed institutedin the criminal action.

Public Prosecutor must be present during the proceedings and must take overthe conduct of the trial from the private prosecutor at any time the cause of theprosecution may be adversely affected.

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Thus, where the prosecutor has turned over the active conduct of the trialto the private prosecutor who presented testimonial evidence even whenthe public prosecutor was absent during the trial, the evidence presentedcould not be considered valid evidence of the People.

However: this rule applies only to courts which are provided by law withprosecutors, and not to municipal courts which have no trial prosecutors,in which case the evidence presented by the private prosecutor can beconsidered as evidence for the People.

*However, under an amendment made by the SC effective May 1, 2002, Rule110 Section 5 now provides that All criminal actions either commenced by complaint orby information shall be prosecuted under the direction and control of a public prosecutor.In case of heavy work schedule of the public prosecutor or in the event of lack of public

prosecutors, the private prosecutor may be authorized in writing by the Chief of theProsecution Office or the Regional State Prosecutor to prosecute the case subject to the

approval of the court. Once so authorized to prosecute the criminal action, the privateprosecutor shall continue to prosecute the case up to the end even in the absence of apublic prosecutor, unless the authority is revoked or otherwise withdrawn."

4. General Rule: In appeals, the Sol. Gen. has control. He may abandon or discontinuethe prosecution of the case in the exercise of his sound discretion and may evenrecommend the acquittal of an accused when he believes that the evidence does notwarrant his conviction.

Exception: provided for in RA 8249 which states in part that in all caseselevated to the Sandiganbayan and from the SB to the SC, the Office of theOmbudsman, through its special prosecutor, shall represent the People of the

Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A, issuedin 1986.

5. When it is said that the requirement ofArt. 344 of RPCis jurisdictional, what is meantis that it is the complaint that starts the prosecutory proceeding. It is not the complaintwhich confers jurisdiction on the court to try the case.

6. Once the complaint is filed, does death of the complainant in a crime of adulteryextinguish the criminal liability of the accused? No. The participation of the offendedparty in private crimes is essential not for the maintenance of the criminal action butsolely for the initiation thereof. Any pardon given by the complainant or her death afterthe filing of the complaintwould not deprive the court of the jurisdiction to try the case.

7. The desistance of complainant:

Does not bar the People from prosecuting the criminal action

But: it does operate as a waiver of the right to pursue civil indemnity.

Sufficiency of complaint or information

1. A complaint is sufficient if it states:

the name of the accused

the designation of the offense by a statute

the acts or omission complained of as constituting the offense the name of the offended party

the approximate time of the commission of the offense

the place where the offense was committed.

2. Purpose: to safeguard the constitutional right of an accused to be informed of thenature and cause of the accusation against him.

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Name of the accused

1. If name is known: the name and surname of the accused or any appellation ornickname by which he has been or is known.

2. If name cannot be ascertained: a fictitious name with a statement that his true nameis unknown.

If true name thereafter disclosed: such true name shall be inserted in thecomplaint or information and record.

3. While one or more persons, along with specified and named accused, may be suedas John Does, an information against all accused described as John Does is void,and an arrest warrant against them is also void.

Designation of the offense

1. In case of a conflict between the designation of the crime and the recital of factsconstituting the offense, the latter prevails over the former.

2. The real question is not, did he commit a crime given in the law some technical andspecific name, but did he perform the acts alleged in the body of the information. If hedid, it is of no consequence to him, either as a matter of procedure or of substantiveright, how the law denominates the crime.

Cause of accusation

1. If one or more elements of the offense have not been alleged in the information,the accused cannot be convicted of the offense charged, even if the missing elementshave been proved during the trial.

Even the accuseds entering a plea of guilty to such defective information will notcure the defect, nor justify his conviction of the offense charged.

2. Important: The new rule requires that the qualifying and aggravating circumstancesbe alleged in the information.

3. Where the law alleged to have been violated:

prohibits generally acts therein defined

is intended to apply to all persons indiscriminately,

but prescribes certain limitations or exceptions from its violation

the information is sufficient if it alleges facts which the offender did as constituting aviolation of law, without explicitly negating the exception, as the exception is a matter ofdefense which the accused has to prove.

4. Where the law alleged to have been violated

applies only to specific classes of persons and special conditions

the exemptions from its violation are so incorporated in the language defining thecrime that the ingredients of the offense cannot be accurately and clearly setforth if the exemption is omitted,

the information must show that the accused does not fall within the exemptions.

5. Where what is alleged in the information is a complex crime and the evidence fails tosupport the charge as to one of the component offenses, the defendant can only beconvicted of the offense proven.

Place of commission of the offense

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May conviction be had even if it appears that the crime was committed not at theplace alleged in the information? Yes, provided the place of actual commission waswithin the jurisdiction of the court.

Unless: the particular place of commission is an essential element of the offense

charged.

Date of the commission of the offense

What is the determinative factor in the resolution of the question involving avariance between the allegation and proof in respect of the date of the crime? Theelement of surprise on the part of the accused and his inability to defend himselfproperly.

Name of the offended party

To constitute larceny, robbery, embezzlement, obtaining money by false pretenses,

malicious mischief, etc., the property obtained must be that of another person, andindictment for such offense must name the owner and a variance in this respectbetween the indictment and the proof will be fatal.

Duplicity of the offense

1. Waiver:

When the accused fails, before arraignment, to move for the quashal of theinformation which charges 2 or more offenses, he thereby waives the objectionand may be found guilty of as many offenses as those charged and provedduring the trial.

2. Where the law with respect to an offense may be committed in any of the differentmodes provided by law, the indictment in the information is sufficient if the offense isalleged to have been committed in one, two or more modes specified therein. Thevarious ways of committing the offense should be considered as a description of onlyone offense and the information cannot be dismissed on the ground of multifariousness.

3. Exceptions to the rule on duplicity: continuous crimes and complex crimes

Amendment or substitution

1. Before the accused enters his plea, the prosecutor may:

upgrade the offense

allege qualifying and aggravating circumstances or change the offense charged

without leave of court, provided there is evidence thereon which has been presentedduring the preliminary investigation.

2. However,prosecutor cannot:

downgrade the offense charged

exclude from the information a co-accusedwithout filing a motion to that effect, with notice to the offended party, and subject to theapproval of the court. The court shall state the reasons in resolving the motion andcopies thereof furnished all parties, especially the offended party.

3. Technically, paragraph 2 of Section 14 does not refer to amendment, but tosubstitution of the complaint or information by a new one. If the substitution is madebefore the accused enters his plea, the question of double jeopardy does not arise. Ifthe filing of new information is done after the plea and before judgment on the groundthat there has been a mistake in charging the proper offense, the filing thereof may onlybe allowed if it will not place the accused twice in jeopardy.

4. Test as to whether a defendant is prejudiced by an amendment:

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whether a defense under the information as it originally stood would be availableafter the amendment is made, and

whether any evidence defendant might have would be equally applicable to the

information in the new form as in the other.

5. General Rule: after arraignment, the prosecutor may no longer amend the informationwhich changes the nature of the crime, as it will prejudice the substantial rights of theaccused.

Exception: when a fact supervenes which changes the nature of the crimecharged in the information or upgrades it to a higher crime, the prosecutor, withleave of court, may amend the information to allege such supervening fact andupgrade the crime charged to the higher crime brought about by suchsupervening fact.

However: if the supervening event which changes the nature of the crime to amore serious one occurred after the accused has been convicted, which makesthe amendment of the information no longer the remedy of the prosecution, theprosecution can and should charge the accused for such more serious crime,without placing the accused in double jeopardy, there being no identity of theoffense charged in the first information and in the second one.

6. Section 14 applies only to original case and not to appealed case.

Place where action is to be instituted

1. Venue in criminal case is jurisdictional, being an essential element of jurisdiction.

2. General Rule: Penal laws are territorial; hence Philippine courts have no jurisdictionover crimes committed outside the Philippines.

Exceptions: those provided in Article 2 of the Revised Penal Code. Those whocommit any of the crimes contemplated therein can be tried by Philippine courts.

Intervention of the offended party in criminal action

1. Where the offended party withdrew a reservation to file a separate civil action, theprivate prosecutor may still intervene in the prosecution of the criminal case, byconducting the examination of witnesses under the control of the prosecutor.

However: once the offended party has filed a separate civil action arising fromthe crime, he may not withdraw such civil case in order to intervene in thecriminal prosecution. He loses the right to intervene. He no longer has anystanding in the criminal case, except to be a prosecution witness.

2. Where a criminal action has been provisionally dismissed upon motion of theprosecutor, can the case be revived upon motion of the offended party? No,because the offended party or complaining witness cannot act for the prosecutor.

RULE 111 PROSECUTION OF CIVIL ACTION

Institution of criminal and civil actions

1. General Rule: the institution or filing of the criminal action includes the institutiontherein of the civil action for recovery of civil liability arising from the offense charged.

Except in the following instances:

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the offended party waives the civil action;

he reserves his right to institute the civil action separately; or

he institutes the civil action prior to the criminal action.

2. The employer may not be held civilly liable for quasi-delict in the criminal action asruled in Maniago v. Court of Appeals since quasi-delict is not deemed instituted with thecriminal. If at all, the only civil liability of the employer in the criminal action would be hissubsidiary liability under the Revised Penal Code.

3. Two instances where no reservation shall be allowed:

a criminal action for violation of BP 22

unless a separate civil action has been filed before the institution of thecriminal action, no such civil action can be instituted after the criminalaction has been filed as the same has been included therein.

A claim arising from an offense which is cognizable by the Sandiganbayan.

a civil action filed prior to the criminal action has to be transferred to thesubsequently filed criminal action for joint hearing (Sec. 4 of PD1606 asamended by RA 8249)

4. When the reservation of the right to institute the separate civil actions shall bemade: before the prosecution starts to present its evidence and under circumstancesaffording the offended party a reasonable opportunity to make such a reservation.

5. The rule requiring reservation to file a separate civil action does not apply to civilactions which can be filed and prosecuted independently of the criminal action, namely,those provided in Arts. 32, 33, 34 and 2176 of the Civil Code.

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

Thus: even if the accused started serving his sentence within the 15-day periodfrom the promulgation of the judgment of conviction by the lower court, therebymaking the judgment against him final, the complainant may, within the 15-dayreglementary period, still ask that the civil liability be fixed 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 civilliability.

7. Rules on Filing Fees:

No filing fees are required for amounts of actual damages.

Exception: criminal action for violation of BP 22 which is deemed toinclude the corresponding civil action. The offended party shall, upon thefiling of the criminal and civil actions, pay in full the filing fees based onthe face value of the check as the actual damages.

Purpose of Exception: to prevent the offended party from using theprosecutors office and the court as vehicles for recovery of the face valueof the check, without paying the corresponding filing fees therefor.

With respect to damages other than actual, if these damages are specified in thecomplaint or information, the corresponding filing fees should be paid, otherwise,the trial court will not acquire jurisdiction over such other damages.

Where moral, exemplary and other damages are not specified in the complaint or

information, the grant and amount thereof are left to the sound discretion of the

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trial court, the corresponding filing fees need not be paid and shall simplyconstitute a first lien on the judgment.

8. In an appeal of a criminal case:

The appellate court may impose additional damages or increase or decrease theamounts of damages upon the accused-appellant.

However, additional penalties cannot be imposed upon a co-accused who did notappeal, but modifications of the judgment beneficial to him are considered in hisfavor.

9. The offended party in a criminal case may appeal the civil aspect despite the acquittalof the accused.

Where the trial court convicted the accused, but dismissed the civil action institutedtherein, the offended party may appeal the dismissal to the CA.

10. Compromise on civil aspect: The offended party may compromise the civil aspect of a crime , provided that it

must be entered before or during the litigation, and not after final judgment. Acompromise on the civil aspect is valid even if it turns out to be unsatisfactoryeither to one or both of the parties.

11. Important!: Section 1, Rule 111 now expressly provides that no counterclaim,cross-claim or third-party complaint may be filed by the accused in the criminal case, butany cause of action which could have been subject thereof may be litigated in aseparate civil action.

Reasons:

the counterclaim of the accused will unnecessarily complicate andconfuse the criminal proceedings;

the trial court should confine itself to the criminal aspect and the possiblecivil liability of the accused arising out of the crime.

When separate civil action is suspended

Take Note: Article 29 of the Civil Code merely emphasizes that a civil action fordamages is not precluded by the acquittal of an accused for the same criminal act oromission. It does not state that the remedy can be availed of only in a separate civilaction.

When civil action may proceed independently

1. Prior reservation is not necessary to file separate civil action under Arts. 32, 33, 34and 2176 of the Civil Code. The phrase which has been reserved that has causedconflicting rulings in the past has now been deleted.

2. Actions based on quasi-delict may be filed independently of the criminal actionregardless of the result of the criminal action, except that a plaintiff cannot recoverdamages twice for the same act or omission of the defendant.

Effect of death of the accused on civil actions

1.After arraignment and during the pendency of the criminal action:

General Rule: death extinguishes the civil liability arising from delict or theoffense

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court should hold in abeyance or suspend proceedings and remand thecase to the office of the prosecutor for him to conduct PI.

2. The refusal of the court to remand the case for PI can be controlled by certiorari

and prohibition to prevent trial.

Officers authorized to conduct preliminary investigation

1. No longer authorized to conduct PI:

By implication, MTC judges in Manila and in chartered cities have not beengranted the authority to conduct PI, as the officers authorized to do so are the

prosecutors.

Judges of RTCs

2. Two types of offenses may be filed in the MTC for preliminary investigation:

a case cognizable by the RTC may be filed with the MTC for PI;

even if it is cognizable by the MTC because it is an offense where the penaltyprescribed by law is at least 4 years 2 months and 1 day.

3. Regarding offenses falling within the original jurisdiction of the Sandiganbayan:

Prosecutors or municipal trial court judges conducting PI of offenses falling withinthe original jurisdiction of the Sandiganbayan shall, after their conclusion,transmit the records and their resolutions to the Ombudsman or his deputy forappropriate action.

Moreover, the prosecutor or judge cannot dismiss the complaint without the prior

written authority of the Ombudsman or his deputy, nor can the prosecutor file aninformation with the Sandiganbayan without being deputized by, and without priorwritten authority of, the Ombudsman or his deputy.

4. Regarding election offenses:

The exclusive jurisdiction of the Comelec to investigate and prosecute electionoffenses inheres even if the offender is a private individual or public officer oremployee, and in the latter instance, irrespective of whether the offense iscommitted in relation to his official duties or not. In other words, it is the natureof the offense, namely, an election offense as defined in the Omnibus ElectionCode and in other election laws, and not the personality of the offender thatmatters.

5. Regarding the Ombudsman:

The power of the Ombudsman to make investigation extends to anyillegal act oromission ofanypublic official, whether or not the same is committed in relation tohis office.

Preliminary investigation by the Ombudsman is limited to cases cognizable bythe Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules ofProcedure of the Office of the Ombudsman.

Section 4(d) of Administrative Order No. 07 disallows the filing of a motion to

quash or dismiss a complaint filed with the Ombudsman, except on the ground oflack of jurisdiction.

Which remedy may an aggrieved party avail of against resolutions of theOmbudsman in criminal or non-administrative cases? The law is silent.Hence, appeal is not available as a remedy because the right to appeal is astatutory privilege and may be availed of only if there is a statute to that effect.

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However, an aggrieved party is not without remedy, as he can resort to thespecial civil action of certiorari under Rule 65.

The Ombudsman does not have the power:

to prosecute before the Sandiganbayan any impeachable officers with anyoffense which carries with it the penalty of removal from office, or any penaltyservice of which would amount to removal from office because byconstitutional mandate, they can only be removed from office onimpeachment for, and conviction of, culpable violation of the Constitution,treason, bribery, graft and corruption, other high crimes, or betrayal of publictrust

to prosecute public officers or employees who have committed electionoffenses.

to file an information for an offense cognizable by the regular courts.

6. Effect of an incomplete PI: does not warrant the quashal of the information

does not affect the courts jurisdiction or the validity of the information.

Procedure

1. By reason of the abbreviated nature of PI, a dismissal of the charges as a resultthereof is not equivalent to a judicial pronouncement of acquittal.

2. The accused or respondent in a criminal prosecution may avail himself of discoveryremedies either during preliminary investigation or when the information has already

been filed in court.

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

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

5. The respondent now has the right to examine the evidence submitted by thecomplainant of which he may not have been furnished and to obtain copies thereof at hisexpense.

Resolution of investigating prosecutor and its review

1.After having filed the information, the prosecutor is called upon to prosecute the casein court. It has been said that at this stage, unlike judges who are mandated to displaycold neutrality in hearing cases, the prosecutors are not required to divest themselves oftheir personal convictions and refrain from exhibiting partiality. But while he may strikehard blows, he is not at liberty to strike foul ones.

2. Effect of exclusion of other persons from the information:

If during the trial, evidence is shown that such persons should have beencharged, the fact that they were not included in the information does not relievethem of criminal liability, and they can be subsequently prosecuted.

The accused who has been charged with the offense is not allowed to escapepunishment merely because it develops in the course of the trial that there wereother guilty participants in the crime.

It does not vitiate the validity of the information. Neither is the same a ground fora motion to quash.

3. Role of Secretary of Justice:

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The Secretary of Justice is not prevented from entertaining an appeal from theaccused or from the offended party even after the information has been filed andthe trial court has arraigned the accused. Section 4 of DOJ 223 should be

construed as merely enjoining the Secretary of Justice to refrain, as far aspracticable, from entertaining a petition for review or appeal from the action of theprosecutor once the complaint or information is filed in court. If the Secretaryreverses the ruling of the prosecutor, the latter has to file the necessary motion todismiss the complaint or information, the grant or denial of which is subject to thediscretion of the trial court.

4. Effect if the information is filed by someone not authorized by law:

The court does not acquire jurisdiction. The accuseds failure to assert lack ofauthority on the part of the prosecutor in filing the information does not constitutea waiver thereof.

5. The prosecutor is required to resolve the complaint based on the evidence presentedby the complainant in the event that the respondent cannot be subpoenaed or therespondent, if subpoenaed, does not submit a counter-affidavit within the 10-day period.

Resolution of investigating judge and its review

Non-judicial function:

When a municipal judge conducts PI, he performs a non-judicial function.Consequently, the findings of the investigating judge are subject to review by theprovincial prosecutor whose findings in turn may also be reviewed by theSecretary of Justice in appropriate cases.

When warrant of arrest may issue

1. Invalid: A warrant issued by the judge solely on the basis of the report andrecommendation of the investigating prosecutor, without personally determining theexistence of probable cause by independently examining sufficient evidence submittedby the parties during the PI

2. Effect of a finding of probable cause:

merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

3. What the accused who believes that there is no probable cause to hold him for

trial may do: to file with the trial court a motion to dismiss on such ground or for the

determination of probable cause.

if the warrant of arrest has been issued, the accused may file a motion to quashthe arrest warrant or to recall the same on the ground of lack of probable cause.

4. Where an information has already been filed in court, and the Secretary ofJustice reversed the prosecutors finding of probable cause, what should the trialcourt do upon the prosecutors motion to dismiss? He must make his ownassessment of the evidence and not just rely on the conclusion of the prosecutor,otherwise the court becomes a mere rubber stamp.

5. Regarding reinvestigation:

Once the complaint or information is filed in court, any motion for reinvestigationis addressed to the sound discretion of the court.

While the trial court judge has the power to order the reinvestigation of the caseby the prosecutor, he may not, before the prosecutor concluded the

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reinvestigation, recall said order, set the case for arraignment and trial, withoutgravely abusing his discretion.

6. Municipal judge may issue arrest warrant before conclusion of preliminary

investigation if: he finds that probable cause exists and

there is a necessity of placing respondent under immediate custody.

7. Important: The rule is now that the investigating judges power to order the arrest ofthe accused is limited to instances in which there is a necessity for placing him incustody in order not to frustrate the ends of justice . Thus, even if the judge findsprobable cause, he cannot, on such ground alone, issue a warrant of arrest. He mustfurther find there is a necessity of placing the accused under immediate custody in ordernot to frustrate the ends of justice.

8. The investigating judge has no power to reduce or change the crime charged inorder to justify the grant of bail to the accused. The power belongs to theprosecutor.

9.After the conclusion of his PI, the judge has to transmit to the provincial prosecutor hisresolution and entire records of the case, regardless of whether he finds a probablecause or sufficient ground to issue a warrant of arrest.

When accused lawfully arrested without warrant

1. General Rule: No complaint or information shall be filed for an offense which ispenalized by imprisonment of not less than 4 years, 2 months and 1 day without PI.

Exception: when the accused has been lawfully arrested without warrant, inwhich case, an inquest must be conducted by an inquest prosecutor who willdetermine whether his arrest without warrant is lawful. The inquest prosecutormay order the release of the arrested person if he finds no sufficient ground tohold him without prejudice to conducting further investigation, or file complaint orinformation within the period specified in Art. 125 of the RPC.

2. In case a person is arrested without a warrant, a complaint or information mayonly be filed after an inquest conducted in accordance with existing rules.

Provided: that in the absence or unavailability of an inquest prosecutor, the

complaint may be filed by the offended party or a peace officer directly with theproper court on the basis of the affidavit of the offended party or arresting officeror person.

3. Before the filing of a complaint or information, the person arrested without a warrantmay ask for a preliminary investigation by a proper officer, but he must sign a waiver ofthe provisions of Art. 125 of the RPC.

4. If the accused allows himself to be arraigned without asking for a preliminaryinvestigation, he is deemed to have waived the right to such PI.

Cases not requiring preliminary investigation nor covered by the Rule on

Summary Procedure

The respondent or accused is not entitled to preliminary investigation in thefollowing cases:

cases governed by the Rules on Summary Procedure;

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

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RULE 113 ARREST

Definition of arrest

Application of actual force, manual touching of the body, physical restraint or formaldeclaration of arrest is not required. Arrest includes submission to the custody of the

person making the arrest.

Execution of warrant

1. The judge issues a warrant of arrest in 2 instances:

(1) Upon the filing of the information by the prosecutor.

In issuing this kind of warrant, the judge does not personally examine thecomplainant and the witnesses he may produce, but he merely evaluatespersonally the report and supporting documents and other evidence adducedduring the preliminary investigation and submitted to him by the prosecutor,and if he finds probable cause on the basis thereof he issues the warrant forthe arrest of the accused.

(2) Upon application of a peace officer.

In this kind of warrant, the judge must personally examine the applicant andthe witnesses he may produce, to find out whether there exists probablecause, otherwise the warrant issued is null and void. He must subject thecomplainant and the witnesses to searching questions. The reason for this isthere is yet no evidence on record upon which he may determine theexistence of probable cause.

2.A warrant of arrest has no expiry date. It remains valid until arrest is effected or thewarrant is lifted.

However, Sec. 4 of Rule 113 requires the head of the office who applied forwarrant to execute the same within 10 days from receipt thereof and for thearresting officer assigned to execute the same to submit, within 10 days from theexpiration of the first 10-day period, a report to the judge who issued the warrant.

Arrest without warrant; when lawful

1. In a citizens arrest, the person may be arrested and searched of his body and of hispersonal effects or belongings, for dangerous weapons or anything which may be usedas proof of the commission of an offense, without need of a search warrant.

2. Sec. 5(a) refers to arrest in flagrante delicto while Sec. 5(b) refers to hot pursuit.

3. Sec. 5(b) authorizes warrantless arrest when an offense has in fact just beencommitted. The word just implies immediacyin point of time.

4. Delivery of the detained person to the proper judicial authorities means the filing of thecomplaint or information with the municipal trial court or with the inquest fiscal orprosecutor who shall then decide either to order the release of the detained person or tofile the corresponding information in court.

Method of arrest by officer without warrant

1. Custodial investigation

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Involves any questioning initiated by law enforcement officers after a personhas been taken into custody or otherwise deprived of his freedom of action in anysignificant way.

It is only after investigation ceases to be a general inquiry into an unsolvedcrime and begins to focus on a particular suspect, the suspect is taken intocustody, and the police carries out a process of interrogations that lends itself toeliciting incriminating statements that the rule begins to operate.

Embraced in custodial investigation:

invited for questioning

re-enactment

Not embraced in custodial investigation:

police line-up

ultraviolet ray examination

normal audit examination by the COA of the accountability of a public officer

2. When the threat or promise was made by, or in the presence of, a person in authority,who has, OR is supposed by the accused to have power or authority to fulfill the threator promise, the confession of the accused is inadmissible.

3. Presumption of regularity in the performance of duties:

Does not apply during in-custody investigation, nor can it prevail over theconstitutional right of the accused to be presumed innocent.

4. The arresting officer may be held civilly liable for damages under Art. 32 of the CivilCode. The very nature of Art. 32 is that the wrong may be civil or criminal. It is notnecessary that there should be malice or bad faith.

5. On Civil Procedure:

Section 20 Rule 14 of the 1997 Rules of Civil Procedure provides in part that theinclusion in a motion to dismiss of other grounds aside from lack of jurisdictionover the person of the defendant shall not be deemed a voluntary appearance.

Section 8 Rule 15 provides that subject to the provisions of Section 1 Rule 9, a

motion attacking a pleading, order, judgment or proceeding shall include allobjections then available, and all objections not so included shall be deemedwaived.

These changes in the 1997 Rules of Civil Procedure are applicable to criminalcases as Section 3 Rule 1 thereof provides that these rules shall govern theprocedure to be observed in actions, civil or criminal, and special proceedings.Moreover, the omnibus motion rule applies to motions to quash.

6. Section 26 of Rule 114 of the New Rules of Criminal Procedure provides that bail isnot a bar to objection on illegal arrest, lack of or irregular preliminaryinvestigation. This is an abandonment of the Cojuangco, Jr. v. Sandiganbayan ruling.

RULE 114 BAIL

Bail defined

1. Purpose:

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to honor the presumption of innocence until his guilt is proven beyond reasonabledoubt

to enable him to prepare his defense without being subject to punishment prior to

conviction.

2. Upon assumption of the obligation of bail, the sureties become in law the jailersof their principal.

3. As bail is intended to obtain or secure ones provisional liberty, the samecannot be posted before custody over him has been acquired by the court.

Rationale: it discourages and prevents resort to the pernicious practice wherebyan accused could just send another in his stead to post his bail, withoutrecognizing the jurisdiction of the court by his personal appearance therein andcompliance with the requirements thereof.

Conditions of the bail; requirements

1. The suretys liability covers all these 3 stages:

trial

promulgation

the execution of the sentence.Unless the court directs otherwise, the bail bond posted by an accused remains in forceat all stages of the case until its final determination.

2. If the accused presents his notice of appeal, the trial court will order the accused to betaken into custody in the absence of a new bail bond on appeal duly approved by the

court. If the accused does not appeal, the bondsman must produce the accused on the15th day from promulgation of sentence for service of sentence.

Bail, as a matter of right; exception

1. When bail is a matter of right:

before or after conviction by the MTC

before conviction, for all offenses punishable by lower than reclusion perpetua

prosecution does not have the right to oppose or to present evidence forits denial.

2. When bail is a matter of discretion:

before conviction, in offenses punishable by death, reclusion perpetua or lifeimprisonment

after conviction by the RTC of a non-capital offense

prosecution is entitled to present evidence for its denial.

3. Right to bail may be waived.

4. Bail in court-martial offenses: The right to bail of an accused military personnel triable by courts-martial

does not exist, as an exception to the general rule that an accused is entitledto bail exceptin a capital offense where the evidence of guilt is strong.

Rationale: The unique structure of the military justifies exempting military menfrom the constitutional coverage on the right to bail.

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Why?because in both cases, the grant of bail before conviction by the trial courtis a matter of discretion when evidence of guilt is strong.

2. The constitutional mandate makes the grant or denial of bail in capital offenses

hinge on the issue of whether or not the evidence of guilt is strong.

3. Meaning of conviction

The word conviction in Section 13, Article III of the 1987 Constitution refers toconviction by the trial court, which has not become final, as the accused still hasthe right to appeal. After conviction by the trial court, the accused convicted of acapital offense is no longer entitled to bail, and can only be released when theconviction is reversed by the appellate court.

Burden of proof in bail application

1. Evidence of guiltin the Constitution and the Rules refers to a finding of innocenceor culpability, regardless of the modifying circumstances.

2. Regarding minors charged with a capital offense:

If the person charged with a capital offense, such as murder, admittedly a minor,which would entitle him, if convicted, to a penalty next lower than that prescribedby law, he is entitled to bail regardless of whether the evidence of guilt is strong.The reason for this is that one who faces a probable death sentence has aparticularly strong temptation to flee. This reason does not hold where theaccused has been established without objection to be minor who by law cannotbe sentenced to death.

3. Duty of judge to conduct hearing:

Where the prosecution agrees with the accuseds application for bail or foregoesthe introduction of evidence, the court must nonetheless set the application forhearing.

It is mandatory for the judge to conduct a hearing and ask searching andclarificatory questions for the purpose of determining the existence of strongevidence against the accused; and the order, after such hearing, should make afinding that the evidence against the accused is strong.

Corporate surety

The term of the bail bond is not dependent upon faithful payment of the bond premium.

Justification of sureties

Before accepting a surety or bail bond, the following requisites must be compliedwith:

photographs of the accused;

affidavit of justification;

clearance from the Supreme Court;

certificate of compliance with Circular No. 66 dated September 19, 1996; authority of the agent; and

current certificate of authority issued by the Insurance Commissioner with afinancial statement showing the maximum underwriting capacity of the suretycompany.

Deposit of cash as bail

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The trial judge has no authority to strictly require that only cash bond, instead of a suretybond, be deposited for the provisional release of the accused.

Recognizance

1. The release of the accused may be on his own recognizance, which means that hehas become his own jailer. It may be to a responsible person. Persons charged withoffenses falling under the Rule on Summary Procedure may be released either on bailor on recognizance of a responsible citizen acceptable to the court.

2. In Espiritu v. Jovellanos (280 SCRA 579, 1997), the Court held that the release onrecognizance of any person under detention may be ordered only by a court andonly in the following cases:

when the offense charged is for violation of an ordinance, a light, or a criminaloffense, the imposable penalty of which does not exceed 6 months imprisonment

and/or P2000 fine, under the circumstances provided in RA No. 6036

where a person has been in custody for a period equal to or more than theminimum of the imposable principal penalty, without application of theIndeterminate Sentence Law or any modifying circumstance, in which case thecourt, in its discretion, may allow his release on his own recognizance

where the accused has applied for probation, pending resolution of the case butno bail was filed or the accused is incapable of filing one

in case of a youthful offender held for physical and mental examination, trial, orappeal, if he is unable to furnish bail and under circumstances envisaged in PD

No. 603 as amended.

Bail, where filed

A judge presiding in one branch has no power to grant bail to an accused who is beingtried in another branch presided by another judge who is not absent or unavailable, andhis act of releasing him on bail constitutes ignorance of law which subjects him todisciplinary sanction.

Forfeiture of bail

1. When bail bond forfeited:

only in instances where the presence of the accused is specifically required bythe court or the Rules of Court and, despite due notice to the bondsmen toproduce him before the court on a given date, the accused fails to appear inperson as so required.

2. To justify exemption from liability on a bail bond or reduction thereof, tworequisites must be satisfied:

production or surrender of the person of the accused within 30 days from noticeof the order of the court to produce the body of the accused or giving reasons forits non-production

satisfactory explanations for the non-appearance of the accused when firstrequired by the trial court to appear.

Compliance with the first requisite without meeting the second requisite willnot justify non-forfeiture of a bail bond or reduction of liability.

Arrest of accused out on bail

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1. The bondsmen who put the bail bond for the accused become the jailers and they orthe police officer to whom authority is endorsed may arrest the accused for the purposeof surrendering him to the court. The accused cannot leave the country without the

permission of the bondsmen and the court.

2. Regarding hold-departure orders:

Supreme Court Circular No. 39-97 dated June 19, 1997 limits the authority toissue hold departure orders to the RTCs in criminal cases within their exclusive

jurisdiction. Consequently,MTC judges have no authority to issue hold-departure orders, following the maxim, express mention implies the exclusion.Neither does he have authority to cancel one which he issued.

No bail after final judgment; exception

General Rule: no bail shall be allowed after the judgment has become final, as what is

left is for him to serve the sentence.

Exception: when he has applied for probation before commencing to servesentence, the penalty and the offense being within the purview of the ProbationLaw.

Exception to the exception: the accused shall not be allowed to be released onbail after he has commenced to serve his sentence.

Bail is not a bar to objections on illegal arrest, lack of or irregular preliminaryinvestigation

Important: An application for admission to bail shall not bar the accused fromchallenging the validity of his arrest or the legality of the warrant issued therefore, orfrom assailing the regularity or questioning the absence of a preliminary investigation ofthe charge against him,provided that he raises them before entering his plea. The courtshall observe the matter as early as practicable but not later than the start of the trial ofthe case.

RULE 115 RIGHTS OF ACCUSED

Rights of the accused at the trial

1. Is the constitutional presumption of innocence violated by the presumption ofguilt established by law arising from certain facts proved and by shifting to theaccused the burden of proof to show his innocence? No. The state having the rightto declare what acts are criminal, within certain defined limitations, has a right to specifywhat act or acts shall constitute a crime, as well as what proof shall constitute primafacie evidence of guilt. The constitutional presumption of innocence will not apply aslong as there is some rational connection between the fact proved and the ultimate factpresumed, and the inference of one fact from proof of another shall not be sounreasonable as to be purely arbitrary.

2. Equipoise rule:

If the inculpatory facts and circumstances are capable of two or moreexplanations, one of which is consistent with the innocence of the accused andthe other with his guilt, then the evidence does not fulfill the test of moralcertainty and is not sufficient to support a conviction of the accused. Hence,where the evidence of the parties in a criminal case are evenly balanced, theconstitutional presumption of innocence should tilt the scales in favor of theaccused and he must be acquitted.

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3. If the judgment of conviction had become final and executory, it may still be recalled,and the accused afforded the opportunity to be heard by counsel, where he has beendenied the right to counsel during the hearing.

4. Where an accused was represented in the RTC by a person who claimed to be alawyer and was thereafter convicted, but it was later discovered that his counsel was notreally a lawyer, he is entitled to have his conviction set aside and a new trial undertaken.

5. Transactional and Use immunity distinguished:

Transactional immunityis broader in the scope of its application. By its grant,a witness can no longer be prosecuted for any offense whatsoever arising out ofthe act or transaction.

In contrast, by the grant ofuse-and-derivative-use immunity, a witness is onlyassured that his or her particular testimony and evidence derived from it will not

be used against him or her in a subsequent prosecution.

6. The right against self-incrimination is a protection only against testimonial compulsion.

7. The accuseds right to meet the witnesses face to face is limited to proceedingsbefore the trial court, during trial, and not during custodial or preliminary investigation.

8. Requests by a party for the issuance of subpoenas do not require notice to otherparties to the action.

9. The sanctions of arrest and contempt in respect to disobedience to subpoena are notapplicable to a witness who resides more than 100 kilometers from the residence to the

place where he is to testify, or if he is a detention prisoner no permission of the court inwhich his case is pending was obtained.

10. Public trialshould not be confused with trial by publicitywhich is proscribed.

11. Requisites for valid waiver of right:

existence of right

knowledge of existence thereof

intention to relinquish such right, which must be shown clearly and convincingly

where the law or the Constitution so provides, the waiver must be with theassistance of counsel, to be valid.

RULE 116 ARRAIGNMENT AND PLEA

Arraignment and plea; how made

1. Definition: Arraignment is the stage where the issues are joined in criminal action andwithout which the proceedings cannot advance further or, if held, will otherwise be void.

2. No trial in absentia can be validly held without first arraigning the accused, and

he cannot be arraigned without his personal appearance in court.

3. Presence of offended party required

The presence of the offended party is now required at the arraignment and alsoto discuss the matter of accuseds civil liability. In case the offended party fails to

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appear despite due notice, the trial court may allow the accused to plead guilty toa lower offense with solely the conformity of the trial prosecutor.

4. Accused under preventive detention

While RA 8493, or the Speedy Trial Act, provides that the accused shall bearraigned within 30 days from the time a court acquires jurisdiction over hisperson, Rule 116 section 1(e) provides for a shorter time within which anaccused who is under preventive detention should be arraigned. When anaccused is detained, his case should be raffled within 3 days from the filing of theinformation or complaint against him, and the judge to whom his case is raffledshall have him arraigned within 10 days from receipt by the judge of the recordsof the case. The pre-trial conference shall be held within 10 days after thearraignment.

5. The arraignment shall be held within 30 days from the date the court acquires

jurisdiction over the person of the accused, unless a shorter period is provided byspecial law or by SC Circular.

Certain laws and SC Circulars provide for a shorter time within which theaccused should be arraigned:

RA 4908 in criminal cases where the complainant is about to depart fromthe Philippines with no definite date of return, the accused should bearraigned without delay and his trial should commence within 3 days from thearraignment and that no postponement of the initial hearing should begranted except on the ground of illness on the part of the accused or othergrounds beyond the control of the court.

RA 7610 (Child Abuse Act) the trial shall be commenced within 3 days fromarraignment

Dangerous Drugs Law

SC AO 104-96, i.e., heinous crimes, violations of the Intellectual PropertyRights Law these cases must be tried continuously until terminated within60 days from commencement of the trial and to be decided within 30 daysfrom the submission of the case

Plea of guilty to a lesser offense

1. The new rule provides that the accused may be allowed by the trial court to pleadguilty to a lesser offense which is necessarily included in the offense charged, anddeleted the phrase, regardless of whether or not it is necessarily included in the crimecharged, or is cognizable by a court of lesser jurisdiction than the trial court.

It should be noted, however, that the amendment did not say that an accusedmay be allowed to plead to a lesser offense only if the same is necessarilyincluded in the offense charged. The provision employs the word may, which ispermissive and implies that the court may still allow an accused to plead guilty toa lesser offense, even if the latter is not included in the offense charged.

2. Consent of offended party required:

The consent of the offended party to allowing the accused to plead guilty to alesser offense is necessary. It has been held that if the plea of guilty to a lesseroffense is made without the consent of the prosecutor and the offended party, theconviction of the accused shall not be a bar to another prosecution for an offensewhich necessarily includes the offense charged in the former information.

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3. Change of plea

After the prosecution has rested its case, a change of plea to a lesser offense

may be granted by the judge, with the approval of the prosecutor and theoffended party and only when the prosecution does not have sufficient evidenceto establish the guilt of the crime charged. The judge cannot on its own grant thechange of plea.

Plea of guilty to capital offense; reception of evidence

1. An improvident plea means a plea without proper information as to all thecircumstances affecting it; based upon a mistaken assumption or misleading informationor advice.

2. Conviction in a capital offense cannot rest alone on a plea of guilty, a free and

intelligent plea. It is mandatory for the trial court to require the prosecution to present itsevidence and, if the accused so desires, to allow him to submit his evidence. This is soeven if the accused formally manifests that he waives presentation of evidence by theprosecution.

Plea of guilty to non-capital offense; reception of evidence, discretionary

1. What a plea of guilty includes:

The plea of guilty covers both the crime as well as its attendant circumstancesalleged in the complaint or information, qualifying and/or aggravating the crime.Such plea removes the necessity of presenting further evidence and for all

intents and purposes the case is deemed tried on its merits and submitted fordecision. It leaves the court with no alternative but to impose the penaltyprescribed by law.

2. Mitigating circumstances:

The trial court may allow an accused to plead guilty and at the same time allowhim to prove other mitigating circumstances. However, if what the accusedwould prove is an exempting circumstance, which would amount to a withdrawalof his plea of not guilty, the trial court may not allow him to take the witnessstand.

3. If the accused is permitted to present evidence after his plea of guilty to a non-capitaloffense and such shows that the accused is not guilty of the crime charged, the accusedmust be acquitted, for there is no rule which provides that simply because the accusedpleaded guilty to the charge that his conviction automatically follows. Additionalevidence independent of the plea may be considered to convince the judge that it wasintelligently made.

Withdrawal of improvident plea of guilty

1. Whenit may be done:

at any time before the judgment of conviction becomes final.

2. Effect: change of the accuseds plea from guilty to that of not guilty is the setting aside of

the judgment of conviction and the re-opening of the case for new trial.

3. The withdrawal must at least have a rational basis. The accused should state that hehas a meritorious defense to the charge. The motion should be set for hearing and theprosecution heard thereon.

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Time for counsel de officio to prepare

Express demand:

Counsel for the accused must expressly demand the right to be given reasonabletime to consult with the accused. Only when so demanded does denial thereofconstitute reversible error and a ground for new trial.

Bill of particulars

1. Rule 12 of Civil Procedure on bill of particulars is applicable in criminalproceedings.

2. It is not the office of the bill of particulars to:

Supply material allegation necessary to the validity of a pleading

Change a cause of action or defense stated in the pleading, or to state a causeof action or defense other than the one stated.

Set forth the pleaders theory of his cause of action or a rule of evidence onwhich he intends to rely

Furnish evidentiary information whether such information consists of evidencewhich the pleader proposes to introduce or of facts which constitute a defense oroffset for the other party or which will enable the opposite party to establish anaffirmative defense not yet pleaded.

3. The filing of a motion for bill of particulars suspends the period to file a

responsive pleading. If the motion is granted, the moving party has the remaining period or at least 5

days to file his answer from service of the bill of particulars.

If the motion is denied, he has the same period to file his responsive pleadingfrom receipt of the order denying the motion.

Suspension of arraignment

Tests to determine insanity:

the test of cognition (which is used in this jurisdiction) or the complete deprivationof intelligence in committing the criminal act

the test of volition or that there be a total deprivation of freedom of the will.

RULE 117 MOTION TO QUASH

Time to move to quash

1. Quashal and nolle prosequi distinguished:

The quashal of complaint or information is different from a nolle prosequi,although both have one result, which is the dismissal of the case.

A nolle prosequi is initiated by the prosecutor while a quashal of information isupon motion to quash filed by the accused.

A nolle prosequi is a dismissal of the criminal case by the government before theaccused is placed on trial and before he is called to plead, with the approval ofthe court in the exercise of its judicial discretion. It partakes of the nature of anonuser or discontinuance in a civil suit and leaves the matter in the samecondition in which it was before the commencement of the prosecution. It is not

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an acquittal; it is not a final disposition of the case; and it does not bar asubsequent prosecution for the same offense.

2. General Rule: A MTQ may be filed by the accused at any time before the accused

enters his plea. Thereafter, no MTQ can be entertained by the court.

Exception: under the circumstances mentioned in Sec. 9, Rule 117, whichadopts the omnibus motion rule. This means that a MTQ may still be filed afterarraignment on the ground that the facts alleged in the information charge nooffense, that the offense or penalty has prescribed, or that the doctrine of double

jeopardy precludes the filing of the information.

3. The right to file a MTQ belongs only to the accused. There is nothing in the ruleswhich authorizes the court or judge to motu propio initiate a MTQ by issuing an orderrequiring why the information may not be quashed on the ground stated in said order.

Form and contents

Factual and legal grounds must be stated

This provision requiring that the factual and legal grounds be stated in themotion allows that facts outside the information itself may be introduced to proveany of the grounds of a MTQ, enumerated in Sec. 3. Such inquiry into outsidefacts may also be allowed even when the ground invoked is that the allegation inthe information does not constitute the offense charged.

Grounds

1. In a MTQ based on the ground that the facts alleged in the information do not

constitute the offense charged, the trial court should limit its inquiry to: the averments in the information, as hypothetically admitted;

facts admitted by the prosecution; and

indubitable facts.

2. Where ground for MTQ is illegal arrest:

If the accused believes that the arrest, with or without warrant, is illegal, heshould move to quash the information on such ground, along with other groundsas otherwise such other grounds will be deemed waived if not included in theMTQ, except no offense charged, lack of jurisdiction over the offense,

prescription of offense or liability, or double jeopardy.

3. The prosecutor who signed the information must have territorial jurisdiction to conductthe preliminary investigation of the offense, otherwise the information filed by him wouldbe invalid and can be quashed on such ground.

4. The fact that the allegations in the complaint or information are vague or broad, is notgenerally a ground for a motion to quash, the remedy being to file a motion for bill ofparticulars.

6. The period of prescription of violation of special laws or offenses not penalized by theRevised Penal Code but by special laws, and municipal ordinances is governed by Act

No. 3326 which took effect on December 4, 1926.

7. Doctrine of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.Desierto, 317 SCRA 272 (1999):

If the commission of the crime is known, the prescriptive period shall commenceto run on the day it was committed, otherwise on the date of its discovery.

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In the very nature of things, acts made criminal by special laws are frequentlynot immoral or obviously immoral in themselves. For this reason, the applicablestatute requires that if the violation of the special law is not known at the time, theprescriptive period begins to run only from the discovery thereof, that is,

discovery of the unlawful nature of the constitutive act or acts, in connection withwhich there should be evidence.

8. Regarding prescriptive periods:

Where an accused has been found to have committed a lesser offense includiblewithin the offense charged, he cannot be convicted of the lesser offense if it hasalready prescribed. To hold otherwise would be to sanction the circumvention ofthe law on prescription by the simple expedient of accusing the defendant of thegraver offense.

The rule that if the last day falls on a Sunday or a holiday, the act can still be

done the following day does not apply to the computation of the period ofprescription of a crime, in which the rule is that if the last day in the period ofprescription of a felony falls on a Sunday or legal holiday, the informationconcerning said felony cannot be filed on the next working day, as the offensehas by then already prescribed.

Theperiod of a continuing crimes prescription is counted from the latest or lastact constituting the series of acts continuing the single crime.

The prescriptive period of offenses penalized by special laws and ordinances isinterrupted only by the filing of complaint or information in court. This is withoutdistinction as to whether the cases are covered by the Rule on SummaryProcedure.

The period of prescription does not run when the offender is absent from thePhilippines.

9. Regarding pardon:

Unless grounded on the persons innocence, a pardon by the President cannotbring back lost reputation for honesty, integrity and fair dealing. The pardonedoffender regains his eligibility for appointment to public office which was forfeitedby reason of the conviction of the offense. But since pardon does not necessarily

result in automatic reinstatement because the offender has to apply forreappointment, he is not entitled to back wages.

10. Contentious motions:

Contentious motions in criminal cases must comply with the requirements thatthey be set for hearing at a specified date with prior notice to the adverse party orthe prosecutor at least 3 days before the hearing, the notice of hearing should beaddressed to adverse counsel or the prosecutor, and proof of service of themotion upon the adverse party or prosecutor at least 3 days prior to suchhearing. This is mandatory.

11. Remedy of aggrieved party

While an order granting a motion to quash, unlike a denial thereof, is appealable,as the proper remedy, this rule does not preclude the aggrieved party from filinga special civil action of certiorari, as a substitute for the remedy of a lost appeal,where there is a patent, capricious and whimsical exercise of discretion by a trial

judge or where an appeal will not promptly relieve the aggrieved party from the

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injurious effect of the disputed order, as in the quashal of an information forincomplete preliminary investigation.

Amendment of complaint or information

1. An information does not charge an offense if one or more of its essential elementshave not been alleged therein. The amendment of the information to allege theelement(s) not stated in the information is a material amendment, but the same can bedone because the accused has not been arraigned, nor can a dismissal of theinformation on such ground put the accused twice in jeopardy.

2. A good tactical move may require that the accused should first plead to theinformation and thereafter file a motion to quash either before or after the prosecutionhas presented its evidence. Pursuant to Sec. 9 of Rule 117, an accused, even after hehas entered his plea, may still move to quash the information on the ground that it doesnot charge an offense. If the case is dismissed on such ground, the prosecution may not

be permitted to correct the information because the accused has already pleaded and toallow such amendment may place the accused twice in jeopardy.

Former conviction or acquittal; double jeopardy

1. Double jeopardy will apply...

when the complaint or information is dismissed by a court of competentjurisdiction after the prosecution has presented its evidence even if the dismissalis in the mistaken ground of lack of jurisdiction.

even if the dismissal is made with the express consent of the accused, or uponhis own motion, if it is predicated on insufficiency of the prosecution evidence or

denial of the right to a speedy trial. In both instances, the dismissal has theeffect of acquittal.

2. Double jeopardy will not apply

in case of a conviction of a crime under a special law, which also constitutesan offense under the Revised Penal Code.

Reason: the former is malum prohibitum, while the latter is malum in se.

Thus, it has been held that conviction for the crime of illegal recruitmentunder the Labor Code does not preclude punishment for the offense of estafaunder the RPC.

where 2 informations are filed charging the same accused with 2 different

elements, as in the issuance of bouncing check for estafa under the RPC andviolation of BP 22.

where after trial of a charge of serious physical injuries, the municipal trial courtdismissed the case to give way to the filing of a complaint for frustrated murder,as it believed that what was proved was frustrated murder, the dismissal was nulland void because the trial court should have rendered judgment based on thecharge alleged in the information and the evidence adduced during the trial.Since the dismissal was null and void, it did not place the accused twice in

jeopardy for the continuation of the proceedings for serious physical injuries.

where the accused has been sentenced to suffer a wrong penalty by the trialcourt, the petition for certiorari filed by the prosecutor to correct the penalty whichshould be lower than that imposed does not place the accused twice in jeopardybecause it would shorten the penalty and is favorable to the accused.

where one case is administrative in nature and the other criminal. Neither does itapply in preliminary investigations.

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Provisional dismissal1. Important!: A trial court may not order a provisional dismissal of the case without theexpress consent of the accused and prior notice to the offended party. The trial court,

cannot, on its own, provisionally dismiss the case, nor can it dismiss it provisionallywithout the express consent of the prosecutor.

2. Important!: The provisional dismissal of offenses punishable by imprisonment notexceeding 6 years or a fine of any amount, or both, shall become permanent 1 year afterissuance of the order without the case having been revived. With respect to offensespunishable by imprisonment of more than 6 years, their provisional dismissal shallbecome permanent 2 years after issuance of the order without the case having beenrevived.

Failure to move to quash or to allege any ground therefor

The accused may still file a motion to dismiss the information based on the followinggrounds even if he has already pleaded not guilty:

the information charges no offense;

the trial court has no jurisdiction over the offense charged;

the penalty or the offense has been extinguished; and

double jeopardy has attached.

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