RULE 110 PROSECUTION OF OFFENSES

Section 1. Institution of criminal actions. For offenses where a preliminary investigation is required - by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. Preliminary investigation is REQUIRED for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1day without regard to fine (Rule 112, Sec. 1 Par.2). For all other offenses - by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. DOES NOT APPLY to offenses which are subject to summary procedure.

HOW IS THE CRIMINAL ACTION INSTITUTED? 1. If the crime was committed in Manila and other chartered cities GENERAL RULE: Complaint shall be filed with the office of the prosecutor EXCEPTION: a.When their charter provides otherwise b.When there was warrantless arrest, inquest is

sufficient. If inquest prosecutor is unavailable, the offended party or the arresting officer may file directly to the court on the basis of an affidavit of the offended party or arresting officer or individual.

2. If the crime was committed outside of Manila and other chartered cities NOTE: Distinguish first if PI is required or not

a. If Preliminary Investigation is required

GENERAL RULE: By filing the COMPLAINT with the proper officer for the purpose of conducting the requisite preliminary investigation (Rule 110, Sec 1, a) Preliminary investigation is REQUIRED for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to fine. (Rule 112, Sec. 1 Par.2) EXCEPTION: When there was warrantless arrest, inquest is sufficient. If inquest prosecutor is unavailable, the offended party or the arresting officer may file directly to the court on the basis of an affidavit of the offended party or arresting officer or individual

b. If Preliminary Investigation is NOT required By filing the COMPLAINT OR INFORMATION directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, OR the complaint with the office of the prosecutor

Meaning of “Proper Officer” Refers to officers authorized to conduct the required to conduct the requisite preliminary investigation: 1. provincial or city prosecutors and their assistants 2. national and regional state prosecutors 3. other officers authorized by the courts. Note: Their authority to conduct PI shall include all crimes cognizable by the proper curt in their respective jurisdiction

Effect of institution of the criminal action: It interrupts the running of the period of prescription of the offense charged unless otherwise provided by special laws.

NOTE: But the question is: when will it be interrupted – from the filing of the complaint in the office of the prosecutor or in the court?

a.For ordinary offenses, falling under the RPC Filing before the Office of the Prosecutor tolls the prescriptive period

b.For violation of special laws Filing before the court tolls the prescriptive period (Act 3326), following the case of Zaldivia vs. Reyes, G.R. No. L-102342, July 3, 1992

Remedies of the offended party if the prosecutor refuses to file an information:

1. file an action for mandamus, in case of grave abuse of discretion;

2. lodge a new complaint before the court having jurisdiction over the offense;

3. take up the matter with the Secretary of Justice in accordance with the Rev. Administrative Code;

4. institute an administrative charges against the erring prosecutor; and

5. file criminal action against the prosecutor with the corresponding civil action for damages.

May Injunction Issue to Restrain Criminal Prosecution? GENERAL RULE: Criminal prosecutions may NOT be restrained or stayed by injunction, preliminary or final. The reason being, public interest requires that criminal acts be immediately investigated and prosecuted for the protection of the society (Domingo vs. Sandiganbayan, 322 SCRA 655).

EXCEPTIONS: 1. To afford adequate protection to the

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

of justice or to avoid oppression or multiplicity of actions;

3. When there is a prejudicial question which is subjudice;

4. When the acts of the officer are without or in excess of authority;

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

6. When double jeopardy is clearly apparent;

7. When the court had no jurisdiction over the offense;

8. When it is a case of persecution rather than prosecution;

9. When the charges are manifestly false and motivated by lust for vengeance; and

10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.

SEC vs. INTERPORT (LANDMARK CASE) The Court ruled that the nature and purpose of an investigation conducted by the SEC on violation of the Revised Securities Act – another special law – is equivalent to the preliminary investigation conducted by the DOJ in criminal cases. And thus, effectively interrupts the prescriptive period. Why so? Because the filing of a complaint for purposes of preliminary investigation starts the prosecution process. PANAGUITON vs. DOJ BP 22, where the penalty is not less than 30 days or not more than 1 year, because it is a special law, we expect it to fall under Act 3326. This is the question presented before the Court: “Does it toll the prescriptive period once the complaint was filed before the Office of the Prosecutor?” the SC said YES! And the SC said: “Petitioner’s filing of his complaint-affidavit before the office of the city prosecutor in 1995 signified the commencement of the proceedings for the prosecution of the accused and thus, effectively interrupted the prescriptive period for the offenses they have been charged under BP 22”. If you follow the basic rule Act 3326, it should be filing in court. But this case said that once it was filed before the office of the prosecutor, it interrupted the period. Other cases with the same ruling: Inco v. SB – for violations of RA 3019 San Rio Company Ltd v. Lim – for violations of the Intellectual Property Code Rules on Summary Procedure; How to Institute Criminal Actions (Sec. 11) How commenced. — The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided,

however, that in Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio. The complaint or information shall be accompanied by the affidavits of the compliant and of his witnesses in such number of copies as there are accused plus two (2) copies for the court's files. If this requirement is not complied with within five (5) days from date of filing, the care may be dismissed. (Sec. 12) Duty of court. — (a) If commenced by compliant. — On the basis of the compliant and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the amused if in custody. (b) If commenced by information. — When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense.

Section 2. Form of the complaint or information. FORM

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

Philippines; and 3. Against all persons who appear to be

responsible for the offense involved. Section 3. Complaint defined. A Complaint is:

1. a sworn written statement; 2. charging a person with an offense;

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

The complaint as defined under Section 3 is different from the complaint filed with the Prosecutor’s Office. The complaint mentioned in this section refers to one filed in court for the commencement of a criminal prosecution for violation of a crime, usually cognizable by municipal trial courts as well as to a complaint filed by an offended party in private crimes or those which cannot be prosecuted de officio. REQUISITES OF A COMPLAINT:

1. it must be in writing and under oath; 2. it must be in the name of the People of the

Philippines; 3. it must charge a person with an offense;

and 4. it must be subscribed by the offended

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

The COMPLAINT FILED WITH THE PROSECUTOR’S OFFICE, from which the latter may initiate a preliminary investigation, refers to:

1. Any written complaint; 2. Filed by an offended party or not; 3. Not necessarily under oath, except in 2

instances: a. Complaint for

commission of an offense which cannot be prosecuted de officio or is private in nature

b. Where the law requires that it is to be started by a complaint sworn to by the offended party, or when it pertains to those which need to be enforced by specified public officers.

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

ex. Internal Revenue Officer for violation of the NIRC, custom agents with respect to violations

of the Tariff and Customs Code

Crimes which cannot be prosecuted de officio Concubinage, adultery, seduction, abduction, acts of lasciviousness CANNOT be prosecuted de officio (Art. 344, RPC) • It also includes defamation which consists in the imputation of a crime which cannot be prosecuted de officio. Offended Parties who can file a complaint

1. In adultery and concubinage – The offended spouse. Both guilty parties should be included if both are alive.

2. In seduction, abduction and acts of lasciviousness –

a. If the victim is of legal age and has no incapacity - The victim

alone as exclusive right; parents or grandparents are precluded

from filing the complaint b. If victim is a minor, or of age but

suffers from incapacity – She has independent right but the parents, grandparents or legal guardian may file, even if the offended party does not wish to file the complaint.

c. If the minor is incapacitated, and it was the ascendant who violated the child, the STATE can institute the action for the minor.

3. In rape – The minor has the right to initiate the complaint independently of parents and guardians, unless incompetent/incapable upon grounds other than minority. If minor initiates the complaint, the father/guardian/grandfather cannot withdraw complaint.

Complaint as condition precedent Prosecutor cannot institute without the complaint of the offended party.

The complaint starts the prosecutory proceeding; but it does not vest jurisdiction, as jurisdiction is vested in the court by the law. The complaint is only a condition precedent for the exercise by proper authorities of the power to prosecute. The failure to raise the issue as to WON there has been a valid complaint filed by the offended party at the trial court is a waiver of the issue. Effect of death of offended party After filing Once a complaint is filed, the will of the offended party is ascertained and the action proceeds. Death after filing the complaint would NOT deprive the court of the jurisdiction to try the case Before filing 1. Adultery/Concubinage – The death of the

offended spouse before the filing of the complaint for adultery bars further prosecution - the acquittal or death of one of the accused in the crime of adultery does not bar the prosecution of the other accused

2. Abduction, Seduction, Acts of Lasciouvsness – a. If offended party was of age when

the crime was committed, no more filing b. If offended party was a minor when the crime was committed, parents, grandparents or legal guardian may still file c. If the offended party dies or

becomes incapacitated before she was able to file the complaint and she has no known parents, grandparents or guardians, the state shall initiate the action in her behalf, pursuant to the doctrine of PARENS PATRIAE.

Effect of desistance by offended party

• It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. • An affidavit of desistance cannot justify dismissal of the complaint if made after (and

not before) the institution of the criminal action. (Alonte vs. Savellano, Jr.)

Who may extend pardon; Effect of Pardon by offended party GENERAL RULE: Pardon by the offended party does not extinguish criminal liability. Only civil liability is extinguished by express waiver of the offended party. EXCEPTIONS:

1. In concubinage and adultery – only the offended spouse, not otherwise incapacitated, can validly extend the pardon or consent contemplated therein (liability extinguished)

2. In rape, seduction, abduction and acts of

lasciviousness – a. If offended party was of age when

the crime was committed, only she can extend a valid pardon which would absolve the offender.

b. If offended party was a minor when the crime was committed, the pardon will be effective if given by both parents and the offended party; if she has no parents or where the accused is her own father and her mother is dead, the offended minor, if with sufficient discretion, can validly pardon the accused

Note: The pardon refers to pardon BEFORE filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does NOT prohibit the continuance of the prosecution of the offense except in case of marriage between the offender and the offended party. The pardon in cases of seduction, abduction, and

acts of lasciviousness must be express. Effect of marriage of the offender with the offended party in private crimes It shall extinguish the criminal action or remit the penalty already imposed. This applies even to coprincipals, accomplices, and accessories.

Effect of marriage of the offender with the offended party in rape It shall extinguish the criminal action or remit the penalty already imposed.

EXCEPT: 1. where the marriage was invalid or

contracted in bad faith in order to escape criminal liability,

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

accused in the other acts of rape respectively committed by them are concerned.

Effect of marriage of the offender with the offended party in multiple rape Where multiple rape is committed, marriage of the offended party with one defendant extinguishes the latter’s liability and that of his accessories or accomplices for a single crime of rape cannot extend to the other acts of rape. Marital Rape Note: If the offender in rape is the legal husband of the offended party the subsequent forgiveness by the wife shall extinguish the criminal action or the penalty. But the penalty shall not be abated if the marriage is void ab initio. Effect of marriage on “private libel” In “private libel,” or the libelous imputation to the complainant of the commission of the crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness, and in slander by deed Pardon vs. Consent in Adultery and Concubinage

Pardon Consent

Refers to past acts of adultery/concubinage.

Refers to future acts.

In order to absolve the accused from liability must be extended to both offenders (Art. 344,

In order to absolve the accused from liability, it is sufficient even if granted only to the

RPC) offending spouse. Effect if crime composed of one which can be prosecuted de officio, and one which cannot be prosecuted de officio Where one of the components is a private crime and the other a public offense, the fiscal may initiate the proceeding de officio. Rationale: Since one of the component offenses is a public crime, the latter should prevail, public interest being always paramount to private interest. NOTE: Refrain from using the term “private crime”, there’s no such thing. All crimes are public crimes. Use the term “crimes which cannot be prosecuted de officio” instead.

The ACQUITTAL OR DEATH of one of the accused in the crime of adultery does not bar the prosecution of the other accused (People vs. Topiño, et al., 35 Phil. 901). HOWEVER, the death of the offended spouse before the filing of the complaint for adultery bars further prosecution, BUT if the offended spouse died after the filing of the corresponding complaint, his death will NOT prevent the proceeding from continuing to its ultimate conclusion.

Section 4. Information defined. An Information is:

1. an accusation in writing; 2. charging a person with an offense; 3. subscribed by the prosecutor and filed with

the court. REQUISITES OF AN INFORMATION

1. it must be in writing; 2. it must charge a person with an offense; 3. it must be subscribed by the fiscal; and 4. it must be filed in court.

Persons authorized to file information:

1. City or provincial prosecutor and their assistants; and

2. Duly appointed special prosecutors.

Note: Prosecution in the RTC is always commenced by information, except: • In certain crimes against chastity

(concubinage, adultery, seduction, abduction, acts of lasciviousness); and

• Defamations imputing any of the aforesaid

offenses wherein a sworn written complaint is required in accordance with Section 5 of this Rule.

• In case of variance between the complaint

filed by the offended party and the information in crimes against chastity, the complaint controls (People vs. Oso, G.R. No. L-42571, October 10, 1935).

• An information not properly signed cannot be

cured by silence, acquiescence or even by express consent (Villa vs. Ibanez, G.R. No. L4313, March 20, 1951).

NOTE: What the prosecutor signs under oath is certification that he has conducted the required preliminary investigation (PI). Lack of certification

does not invalidate judgment. (People v. Bulaong)

Variance between complaint and informationVariance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls.

Information not properly signed An information not properly signed cannot be cured by silence, acquiescence or even by express consent (Villa vs. Ibanez, G.R. No. L-4313, March 20, 1951).

COMPLAINT INFORMATION

Subscribed by the offended party, any

peace officer or other officer charged with the enforcement of

the law violated

Subscribed by the fiscal

(indispensable requirement)

it may be filed either in court or in the prosecutor’s office

it is filed with the court

must be made under oath

need not be under oath

Section 5. Who must prosecute criminal actions.

GENERAL RULE: The action must be prosecuted under the direction and control of the prosecutor. The public prosecutor is a quasi-judicial officer and a representative of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all EXCEPTION: When there is lack of public prosecutors or heavy workload, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the court’s approval. The authority will continue until revoked or withdrawn. Meaning of Control The prosecutor can stop the private prosecutor at any point in the conduct of the trial. He can intervene because he is in control of the conduct of the criminal case. Duties of a Public Prosecutor 1. Conduct preliminary investigation for cases filed before their office 2. Have control over the prosecution of the case 3. Conduct Inquest Proceedings if assigned and as provided for by law Limitations on the power of the public prosecutor to exercise discretionary power The rule is that the power of the public prosecutor to exercise discretionary power is NOT absolute (Chua vs. Padillo) a. The decision of the provincial or the city prosecutor, could be questioned before the DOJ via petition for review DOJ within 15 days from receipt of resolution or denial of a Motion for Reconsideration (DOJ Circular 70) b. The CA may review the decision of the DOJ on the premise that it was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction (Rule 65).

c. The decision of the DOJ may be elevated to the President if the penalty for the offense is Death, Life Imprisonment or Reclusion Perpetua Can a private prosecutor proceed with the trial of the case even in the absence of a public prosecutor? No, if the public prosecutor is absent, reset or reschedule. However, the private prosecutor could obtain a certification from the Chief of the Prosecution Office or the Regional State Prosecutor or the Regional Prosecutor to allow the private prosecutor to proceed even in the absence of a public prosecutor. May a public prosecutor allow a private prosecutor to actively handle the conduct of the trial? Yes, where the civil action arising from the crime is deemed instituted in the criminal action. Limitations upon the power of the private prosecutor 1. Is not entitled to be served with copies of the

pleadings as a matter of right since a notice of the court to the fiscal is a notice to the prosecutor (Sese vs. Montesa). Note however that failure to serve pleadings and orders upon government counsel renders the court orders issued upon such such petitions or motions of an accused as void.

2.Cannot make a stand inconsistent with the state. 3.Cannot appeal from an order dismissing the case

on motion of the fiscal. May not continue to take part in the proceeding after the death of the offended party since the latter is the principal and the private prosecutor, merely an agent.

FULL DISCRETION AND CONTROL OF THE PROSECUTOR All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor.

A PRIVATE PROSECUTOR may be authorized to prosecute a criminal action subject to the following conditions:

1. the public prosecutor has a heavy work schedule, or there is no public prosecutor assigned in the province or city;

2. the private prosecutor is authorized IN WRITING by the Regional State Prosecutor (RSP), Provincial or City Prosecutor;

3. the authority of the private prosecutor must be approved by the court;

4. the private prosecutor shall continue to prosecute the case until the end of the trial unless the authority is withdrawn or otherwise revoked by the RSP, Provincial or City Prosecutor; and

5. In case of the withdrawal or revocation of the authority of the private prosecutor, the same must be approved by court. (Memo Circ. No. 25, April 26, 2002, Regarding Amendment to Sec. 5, Rule 110)

In appeals before the CA and the SC, it is only the Solicitor General that is authorized to bring and defend actions in behalf of the People of the Philippines (People vs. Nano, 205 SCRA 155). In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman, through its Special Prosecutor shall represent the People of the Philippines, EXCEPT in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14-A, issued in 1986 (Sec. 4, RA 8249). PROSECUTION OF CRIMES AGAINST CHASTITY *Refer to discussion on offended parties who can file a complaintSection 6. Sufficiency of complaint or information. CONTENTS OF A VALID COMPLAINT OR INFORMATION

1. Name of the accused, including any appellation or nickname An error in the name of the accused is not reversible as long as his identity is sufficiently established and this defect is curable at any stage of the

proceedings as the insertion of the real name of the accused is merely a matter of form.

2. The designation of the offense 3. The acts or omissions complained of as

constituting the offense 4. The name of the offended party 5. The approximate time of the commission of

the offense 6. The place wherein the offense was

committed PURPOSE OF THE RULE

1. To inform the accused of the nature and cause of accusation against him.

2. To notify the defendant of the criminal acts imputed to him so that he can duly prepare his defense.

Substantial defect in the information cannot be cured by evidence that would jeopardize the accused’s right to be informed of the true nature of the offense he is being charged with Section 7. Name of the accused. PURPOSE The manifest intent of the provision is to make a specific identification of the person to whom the commission of an offense is being imputed.

a. If NAME IS KNOWN, the name and surname of the accused or any appellation or nickname by which he has been or is known must be stated;

b. If NAME CANNOT BE ASCERTAINED, a fictitious name with a statement that his true name is unknown;

c. If true name thereafter ascertained, such name shall be inserted in the complaint or information or record;

d. While one or more persons, along with specified and names accused, may be sued as “John Does”, an information against all accused described as “John Does” is void, and an arrest warrant against them is also void.

Section 8. Designation of the offense.

The information or complaint must state or designate the following whenever possible:

1. The designation of the offense given by the statute.

2. The statement of the acts or omissions constituting the offense, in ordinary, concise and particular words.

3. The specific qualifying and aggravating circumstances must be stated in ordinary and concise language.

The qualifying and aggravating circumstances cannot be appreciated even if proved UNLESS alleged in the information (People vs. Perreras). In case of allegation of aggravating circumstance of HABITUAL DELINQUENCY, it should not be generally averred. The information must specify the requisite data regarding:

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

the accused. ALLEGATIONS PREVAIL OVER DESIGNATION OF THE OFFENSE IN THE INFORMATION It is not the designation of the offense in the complaint or information that is controlling (People vs. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine the nature of the crime (People vs. Magdowa, 73 Phil. 512). The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat vs. Court of Appeals, 265 SCRA 701). Limitation on the rule that an accused may be convicted of a crime which is more serious than that named in the title so long as the facts alleged the more serious offense:

An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves:

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

defense; or c) surprises the accused in any way

(U.S. vs. Panlilio, 28 Phil. 603) .

Section 9. Cause of the accusation.

It must be in ordinary or concise language, sufficient to enable a person of common understanding to know what offense is being charged. This must be done both for the offense charged and the circumstances involved in its commission. PURPOSE

1. to enable the court to pronounce proper judgment;

2. to furnish the accused with such a description of the charge as to enable him to make a defense;

3. as a protection against further prosecution for the same cause.

The accused cannot be found guilty of an offense which has not been alleged. Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven.

RULE ON NEGATIVE AVERMENTS GENERAL RULE: Where the statute penalizes generally the acts therein defined and is intended to apply to all persons indiscriminately, the information is sufficient even if does not allege that the accused falls within the excepted situation, for then the complete definition of the offense is entirely separable from the exceptions and can be made without reference to the latter. In this case, the exception is a matter of defense which the accused has to prove. EXCEPTION: Where the statute alleged to have been violated applies only to a specific class of persons

and to special conditions, the information must allege facts establishing that the accused falls within the specific class affected and not those affected from the coverage of law. Where negative averment is an essential element of the crime, it must be proved. Section 10. Place of commission of the offense PURPOSE To show territorial jurisdiction.

GENERAL RULE: A complaint or information is sufficient if it appears from the allegations that the offense was committed or some of its essential ingredients occurred at some place, within the jurisdiction of the court. EXCEPTION: When the place of commission is an essential element of the offense, the place of commission must be alleged with particularity Example:

a. Trespass to dwelling b. destructive arson c. robbery in an inhabited house d. violation of domicile

Section 11. Date of commission of the offense GENERAL RULE: It is NOT required that the complaint or information state with particularity the PLACE where the crime was committed and the DATE of the commission of the crime.

EXCEPTION: a. If the PLACE/DATE of the commission of the offense constitutes an essential element of the offense.

b. When the date is a material ingredient of the offense. Example:

a. Infanticide b. Election offenses c. Abortion

As long as the alleged date is not so remote or far removed from the actual date so as to surprise and prejudice the accused, then the information is valid. The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and

d. his inability to defend himself properly

Section 12. Name of the offended party GENERAL RULE: The offended party must be designated by name, nickname, any other appellation or by fictitious name. EXCEPTION: In crimes against property, the description of the property must supplement the allegation that the owner is unknown. Section 13. Duplicity of offense. There is duplicity when the complaint or information charges 2 or more DISTINCT or DIFFERENT offenses. GENERAL RULE: A complaint or information must charge only one offense. EXCEPTIONS:

1. Complex crimes 2. Special Complex crimes 3. Continuous crimes or delicto continuado 4. Crimes of which another offense is an

ingredient Should there be duplicity of offense in the information, the accused must move for the quashal of the same BEFORE arraignment arraignment, otherwise, he is deemed to have waived the objection and maybe found guilty of as many offenses as those charged and proved during the trial. Section. 14. Amendment or substitution.

KINDS OF AMENDMENT

1. BEFORE THE PLEA – covers both substantial and formal amendment, WITHOUT leave of court.

2. AFTER THE PLEA – covers only formal amendment provided: a) leave of court is obtained b) such amendment is not prejudicial to

the rights of the accused. EXCEPT when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another arraignment of the accused under the amended information.

An amendment is only in form where it neither affects nor alters the nature of the offense charged OR where the charge does not deprive the accused of a fair opportunity to present his defense OR where it does not involve a change in the basic theory of the prosecution. Substitution – If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy. Limitation to the rule on substitution:

1. No judgment has yet been rendered. 2. The accused cannot be convicted of the

offense charged or of any other offense necessarily included therein.

3. The accused would not be placed in double jeopardy.

AMENDMENT SUBSTITUTION OF INFORMATION OR

COMPLAINT

May involve either formal or substantial

changes

Involves substantial change from the original charge

Amendment before the plea has been

entered can be effected without

leave of court.

Substitution of information must be with leave of court as

the original information has to be

dismissed.

Amendment is only as to form, there is

no need for another preliminary

investigation and the retaking of the plea

of the accused.

Another preliminary investigation is

entailed and the accused has to plead

anew to the new information

An amended

information refers to the same offense

charged in the original information

or to an offense which necessarily

includes or is necessarily included

in the original charge, hence

substantial amendments to the information after the plea has been taken

cannot be made over the objection of the accused, for if the

original information would be withdrawn,

the accused could invoke double

jeopardy.

Requires or

presupposes that the new information

involves a different offense which does not include or is not necessarily included

in the original charge, hence the

accused cannot claim double jeopardy.

VARIANCE BETWEEN INDICTMENT AND PROOF (Situations Contemplated)

1. When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved.

2. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged.

3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action

and order the filing of a new information charging the proper offense.

The third situation set forth above is substitution of information under Section 14, Rule 110. Section 15. Place where action is to be instituted. PURPOSE The purpose being not to compel the defendant to move to, and appear in a different court from that of the territory where the crime was committed, as it would cause him great inconvenience in looking for his witnesses and other evidence in another place (Beltran vs. Ramos, 96 Phil. 149). VENUE IS JURISDICTIONAL Venue is jurisdictional as the court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, or changed by agreement of the parties, or by the consent of the defendant. GENERAL RULE: Subject to existing laws, in all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where the offense was committed or any of its essential ingredients occurred. EXCEPTIONS TO THE RULE OF VENUE:

1.2. Sandiganbayan cases

3. If committed in a train, aircraft, or other public or private vehicle: in the court of any municipality or territory where the vehicle passed during its trip, including the place of departure or arrival

4. If committed on board a vessel in the course of its voyage: in the court of the first port of entry or of any municipality or territory where the vessel passed during the voyage, subject to the generally accepted principles of international law

5. Crimes committed outside the Phil but punishable under Article 2 of the RPC: any court where the action is first filed

Article 2, Revised Penal Code Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1) Should commit an offense while on a Philippine ship or airship 2) Should forge or counterfeit any coin or currency

note of the Philippine Islands or obligations and securities issued by the Government of the Philippine

Islands; 3) Should be liable for acts connected with the

introduction into these islands of the obligations and

securities mentioned in the presiding number; 4) While being public officers or employees, should commit an offense in the exercise of their functions; 5) Should commit any of the crimes against national

security and the law of nations, defined in Title One of Book Two of this Code.

6. Complex Crimes Where the crime charged is a complex

crime, the RTC of any province in which any one of the essential elements of such complex crime had been committed has jurisdiction to take cognizance of the offense.

7. Continuing Offense - is one where the elements of which occur in several places, (unlike a LOCAL OFFENSE - one which is fully consummated in one place) The venue is in the place where one of

its essential elements was consummated.

Continuing Crime (People of the Philippines vs Homo, June 6, 2009)A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of acts but all arising from one criminal resolution.

Although there is a series of acts, there is only one crime committed; hence, only one penalty shall be imposed.

A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.Akin to the extant case is that of People v. De la Cruz, wherein the robbery that took place in several houses belonging to different persons, when not absolutely unconnected, was held not to be taken as separate and distinct offenses. They formed instead, component parts of the general plan to despoil all those within the vicinity. In this case, the Solicitor General argued that the [appellant] had committed eight different robberies, because the evidence shows distinct and different acts of spoilation in different houses, with several victimized persons. The Highest Tribunal, however, ruled that the perpetrated acts were not entirely distinct and unconnected from one another. Thus, the single offense or crime.

Requisites of Continuing Crime (People of the Philippines vs Ledesma, September 29, 1976)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 provision are united on one and the same intent leading to the perpetration of the same criminal purpose or claim

Jurisdiction over Continuing Crimes Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g. estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts.

(Dina Tuzon vs Hon. Cesar Cruz, August 28, 1975)In transitory or continuing offenses in which some acts material and essential to the crime and requisite to its consummation occur in one province and some in another, the court of either province has jurisdiction to try the case, it being understood that the first court taking cognizance of the case will

exclude the others (4 Moran's Comments on the Rules of Court, 1970 Ed., pp. 61-62).

8. Piracy – The venue of piracy, unlike all other crimes, has no territorial limits.

9. Libel – The action may be instituted at the election of the offended or suing party in the province or city: a) where the libelous article is printed and

first published; b) if one of the offended parties is a

private individual, where said private individual actually resides at the time of the commission of the offense;

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

10. In exceptional circumstances – to ensure a fair trial and impartial inquiry. The SC shall have the power to order a change of venue or place of trial to avoid miscarriage of justice (Section 5[4], Article VIII, 1987 Constitution). 11. In cases filed under B.P. 22 – The criminal action shall be filed in the place where the check was dishonored or issued. In case of crossed-check, place of depositary or collecting bank.

Section 16. Intervention of the offended party in criminal action. GENERAL RULE: Offended party has the right to intervene by counsel in the prosecution of the criminal action, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111.

“Party” includes not only the government but other persons as well, such as the complainant who may be affected by the judgment rendered in the criminal proceedings. [People v. Madali (2001)] EXCEPTIONS:

1. Where from the nature of the crime and the law defining and punishing it, NO civil liability arises in favor of the offended party; and

2. Where the offended party has waived his right to civil indemnity OR has expressly reserved his right to institute a civil action OR has already instituted said action.

Any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He controls the prosecution of the case and may have reasons why the case should not be dismissed. [Republic v. Sunga]

RULE 111 PROSECUTION OF CIVIL ACTIONS

Section 1. Institution of criminal and civil actions. Revised Penal Code Article 100. Every person criminally liable for a felony is also civilly liable -Civil liability may consist of restitution, reparation of the damaged caused and indemnification of consequential damages. Example in case of death – items of damages that may be recovered

1) Indemnity for the death of the victim 2) Indemnity for the loss of earning capacity

of the deceased 3) Moral damages 4) Exemplary damages 5) Atty’s fee and expenses of litigation 6) Interests in proper cases

-so even when a complaint or information is filled, even without any allegation of damages and the intention to prove and claim then, it is understood that the offended party has the right to prove and claim for them unless a waiver or reservation is made.

Civil action deemed instituted with criminal action – civil liability of the accused must be determined in the criminal action unless waived or reserved in a separate action – this is so because an offense causes two classes of injuries and these are the following:

1) Social injury – criminal act that is repaired thru imposition of the corresponding penalty

2) Personal injury – compensated thru indemnity which is civil in nature

-when no civil action is expressly instituted it shall be impliedly instituted with the criminal action.

GENERAL RULE: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense shall be deemed instituted with the criminal action.

EXCEPTIONS: 1. when the offended party WAIVES the civil

action 2. when the offended party RESERVES his right to institute a separate civil action

3. when offended party INSTITUTES A CIVIL ACTION PRIOR to the criminal action.

Waiver of civil action – right to recover civil liability, a right personal to the offended party and may be waived -if civil action arising from the crime is waived the offended party may still pursue a civil action sourced from culpa aquiliana -act or omission of a person may constitute a crime, quasi delict and a breach of contract at the same time. Ex. A passenger sustained bodily injuries may base his claim upon the three sources. Now if he waives the civil action, does the waiver likewise include the civil action based upon culpa-contractual? It does not. And the fact that the civil action is deemed included in the criminal action that is only for the civil liability arising from the offense charged.

Waiver and reservation of right to file a separate action – to waive is to abandon voluntarily the right of action that one may exercise or enforce.

To reserve is to save for some future time or for such time as is necessary, a thing which one actually has or a right granted by the statute. -information filed by the chief of police without intervention of the offended party did not lose his right to claim in a separation action for damages because he is not the author of the criminal action.

If the Offended party himself filed - permissible to deduce that he has waived the right to file a separate action.

-dismissal of the information in a criminal case does not affect the right of the offended party to institute or continue a civil action already instituted and arising from the offense, where the offended party has already reserved the right to institute such an action or already instituted one. WHEN RESERVATION SHALL BE MADE

1. before the prosecution starts to present its evidence and

2. under circumstances affording the offended party to a reasonable opportunity to make such reservation.

- default of the offended party to make his choice within the time span forfeits that right.

Party authorized to make the reservation – no one is authorized to make reservation except the offended party.

Instances wherein a party is not authorized to make reservation – BP 22, RA 8249 – defining the jurisdiction of Sandiganbayan – no right to reserve the filing of such civil action separately from the criminal action shall be recognized (see mem aid for others)

ONLY the civil liability arising from the crime charged as a felony is now deemed instituted. Civil liability arising from other sources of obligations are no longer deemed instituted like those under Article 32, 33, 34 and 2176 of the Civil Code which can be prosecuted even without reservation. In BP 22 cases, no reservation to file the civil action separately shall be allowed.

Effect of institution of separate action – institution of a civil action for damages – the offended party in effect abandoned his right to press recovery for damages in the criminal case and has opted instead to recover them in the civil case.

-Offended party then loses his right to intervene in the prosecution of the criminal case.

Prior institution of criminal action not necessary – a separate civil action may be instituted and prosecuted to final judgment without waiting for the institution and termination of a criminal action.

-where separate civil action is brought to demand civil liability arising from a criminal offense and no criminal proceeding are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

Double recovery not allowed – Offended party may not recover twice for the same act or omission of the accuses -election of remedies is not made until the judicial proceedings has gone to judgment on the merits.

RULES ON FILING FEES OF CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION

1. NO filing fees are required for amounts of ACTUAL DAMAGES, EXCEPT with respect to criminal actions for violation of BP 22, in which case, the offended party shall pay in full the filing fees based on the face value of the check as the actual damages;

2. Damages other than actual (moral, exemplary and other damages) if specified in the complaint or information, the corresponding filing fees shall be paid, otherwise the court will not acquire jurisdiction over such damages;

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

Payment of filing fees mandatory – amount of damages (not including actual) is specified in the complaint or information, the corresponding filing fee shall be paid by the offended party upon the filing thereof in the court. -amount of damages not specified the filing fees therefore need not to be paid upon the filing of the complaint/information

but said filing fees shall constitute a first lien on the judgment awarding such damages.

Counterclaims, cross-claims, third party complaints are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof may be litigated in a separate civil action. Section 2. When separate civil action is suspended. PRIMACY OF CRIMINAL ACTION OVER CIVIL ACTION

1. After the filing of the criminal action, the civil action which has been reserved CANNOT be instituted until final judgment has been rendered in the criminal action.

2. If the civil action is instituted BEFORE the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment in the criminal action has been rendered.

EXCEPTIONS: a) In cases of independent civil actions based

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

b) In cases where the civil action presents a prejudicial question;

c) In cases where the civil action is consolidated with the criminal action; and

d) Where the civil action is not one intended to enforce the civil liability arising from the offense.

ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE FILING OF THE CIVIL CASE WHERE:

1. the acquittal is based on reasonable doubt, if the civil case has been reserved

2. the decision contains a declaration that the liability of the accused is not criminal but only civil in nature and

3. the civil liability is not derived from or based on the criminal act of which the accused is acquitted (Sapiera vs. Court of Appeals, 314 SCRA 370).

Determination of civil liability

Coverage of the rule – Section 1 of Rule 111 applies only when the complainant in the civil case is the same offended party in the criminal action and both cases arise from the offense or transaction

The civil liability covered under this rule pertains only to the civil liability suffered by the offended party and not the civil liability to reimbursed the accused as a result of his acquittal- this is in the nature of counterclaim– the remedy of the accused is to file a separate cause of action for the filling of a baseless suit against him which must be litigated in a separate proceeding.

Extinction of the penal action does not carry with it the extinction of the civil action, UNLESS the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. The extinction of the civil liability refers exclusively to civil liability arising from crime; whereas, the civil liability for the same act considered as a quasidelict is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Where the criminal case was dismissed before trial because the offended party executed an affidavit of desistance, the civil action thereof is similarly dismissed. Consolidation of criminal and civil cases – before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party be consolidated with the criminal action in the court trying the criminal action. Consolidation not mandatory – if fusion (civil and criminal action) would necessarily delay the disposition of the criminal case – constitutional right of the accused violated – trial court can deny the application.

Reproduction of evidence Consolidation – evidence presented and admitted in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross examine.

-consolidated criminal and civil case shall be tried and decided jointly – it will avoid the duplication of efforts in the presentation if evidence. Effect of extinction of penal action – civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist -neither is the dismissal of the criminal case at the instance of the fiscal considered to be a bar to the institution of a civil case based upon the same act of transaction -death of the accused pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused. -civil liability not extinguished by acquittal where the acquittal is based on reasonable doubt as only a preponderance of evidence is required in civil cases- Art 332 RPC -final judgment referred to is one rendered by the court and not the dismissal of the complaint by mere resolution of the fiscal at preliminary investigation.

Civil liability is not extinguished: 1) The acquittal is based on reasonable doubt 2) Where the court expressly declare that the

liability of the accused is not criminal but only civil in nature 3) Where the civil liability is not derived from or based on the criminal act of which the accused is acquitted.

Section 3. When civil action may proceed independently. The institution of an independent civil action against the offender under Articles 32, 33, 34 and 2176 of the Civil Code may proceed independently of the criminal case and at the same time without suspension of either proceeding. Recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission may be prosecuted separately even without a reservation. The reservation and waiver herein refers only to the civil action for the recovery of civil liability arising from the offense

charged (DMPI Employees Credit Coop vs. Velez, G.R. No. 129282, Nov. 29, 2001).

Reservation not necessary – may be filed even without reservation, can proceed simultaneously and independently of each other – only limitation: cannot recover damages twice for the same act. ICA based upon violation of civil liberties (Article 32 of the Civil Code) -the creation of an absolutely separate and ICA for violation of civil liberties is essential to the effective maintenance of democracy, for these reasons: 1) the threat to freedom originates from abuses of power by gov’t officials and peace officers – fiscal was burdened with too many cases or on account of disinclination to prosecute a fellow public officials, especially when he is of high rank.

2) even when the prosecuting attorney filed a criminal action, the requirement of proof beyond reasonable doubt often prevented the appropriate punishment. On the other hand, an ICA would afford the proper remedy by a preponderance of evidence.

3) direct and open violations of the penal code trampling upon freedoms named are not so frequent as those subtle, clever and indirect ways which do not come within the pale of the penal law.

Fraud, Defamation and Physical Injuries Used in the law in their generic sense Criminal negligence (reckless imprudence) not included in the Art 33 (fraud, defamation and physical injuries) because what the law penalizes is the negligent or careless act not the result thereof Defamation, fraud and physical injuries are intentionally committed, so that when they are committed through reckless imprudence or criminal negligence, they may not be instituted as an ICA.

PURPOSE To prevent the offended party from recovering damages twice for the same act or omission. Section 4. Effect of death on civil actions. - death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict

- claim for civil liability survives notwithstanding the death of the accused, if the same may be predicated on a source of obligation other than delict – may continue against the estate or legal representative of the accused.

- accused dies before arraignment case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased.

After arraignment and during the pendency of the criminal action –extinguishes the civil liability arising from the delict

Except: where civil liability is predicated on other sources of obligation such as law, contract, quasi-contract and quasi-delict. If such civil action which survives is impliedly instituted in the criminal action, the legal representative or heir the deceased shall be substituted for the deceased. The criminal case if reduced to a civil action. However, if the civil action has been reserved and subsequently filed or such civil action has been instituted, when the accused died, then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Sec 16 Rule 3 of the Rules of Court Before arraignment – the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. Pending appeal of his conviction – it extinguishes his criminal liability as well the civil liability based solely thereon Prior to final judgment – it terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed. Death of the accused after final appeal – pecuniary liabilities of the accused are not extinguished. Claims shall be filed against the estate of the accused.

Sec. 5. Judgment in civil action not a bar -a final judgment rendered in a civil action absolving the defendant from civil liability is no bar to criminal action against the defendant for the same act or omission subject of the civil case Note: where the criminal case was dismissed before trial because the offended party executed an affidavit of desistance, the civil action thereof is similarly dismissed.

Sec. 6. Suspension by reason of prejudicial question.

-the rule that a civil action shall be suspended until final judgment is rendered in the criminal case does not apply when the civil action is a Prejudicial Question (PQ) -PQ must be determinative of the guilt or innocence of the accused Time to plead PQ – authorizes the suspension of criminal proceeding on the ground that there is a PQ raised in a civil action that is pending trial, even during the period of PI of the criminal complaint by the prosecuting officer -when criminal action has been filed in court either for PI or for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

Section 7. Elements of prejudicial question. Prejudicial Question - that which arises in a case, the resolution of which is the logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. Rationale: to avoid two conflicting decisions. ELEMENTS OF A PREJUDICIAL

QUESTION 1. The civil action must be instituted prior to

the criminal action. 2. The civil action involves an issue similar or

intimately related to the issue raised in the criminal action.

3. The resolution of such issue determines whether or not the criminal action may proceed.

WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION

1. Office of the prosecutor; or 2. court conducting the preliminary

investigation; or

3. court where the criminal action has been filed for trial at any time before the prosecution rests.

RULE 112 PRELIMINARY INVESTIGATION

Section 1. Preliminary Investigation defined; when required. Preliminary Investigation - is an inquiry or proceeding to determine whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. (Sec. 1, Rule 112) Preliminary Investigation is required to be conducted BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine. There is NO right of preliminary investigation under Section 7, Rule 112 when a person is LAWFULLY arrested unless there is a waiver of the provisions of Article 125 of the Revised Penal Code. HOWEVER, the accused can ask for Preliminary Investigation in the following cases:

1. if a person is arrested, he can ask for preliminary investigation BEFORE the filing of the complaint/information BUT he must sign a waiver in accordance with Article 125, RPC.

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

PURPOSES

1. to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof;

2. to preserve evidence and keep the witnesses within the control of the State;

3. to determine the amount of bail, if the offense is bailable.

Nature of right to PI • merely inquisitorial; often the only means of

discovering the persons who may be reasonably charged with the crime

• not a judicial proceeding; not a trial of the case on the merits and has no purpose except in determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof

• a STATUTORY RIGHT and not a creation of the constitution but once granted by law, the accused, unless he waives it, may not be brought to trial without the compliance with PI;

• UNDUE DELAY in conduct of PI cannot be corrected and will result to dismissal of the case

(Tatad v. Sandiganbayan)

Absence of PI • DOES NOT affect the court’s jurisdiction over

the case nor do they impair the validity of the information or render it defective (Doromal v. Sandiganbayan)

• not a ground to quash the information or nullify the order of arrest issued against him or justify the release of the accused from detention

• court cannot dismiss the complaint on this ground

• court should hold the trial in ABEYANCE and conduct the investigation or order the fiscal to do it

Waiver of PI • PI may be waived expressly or by

implication/silence • accused should invoke the PI before plea, or

else deemed waived • if court denies invocation of the right to PI,

the remedy of the accused is to immediately appeal the issue before the appellate court since he cannot later raise the issue for the first

time on appeal • right may be renounced and if the accused

refuses to appear, he cannot be compelled to do so

Implied waiver: 1. failure to claim for PI before the accused

pleaded in court 2. failure to request it within five days from

time he learns of filing of the complaint 3. absence of accused 4. by posting bail AND submitting to

arraignment (posting bail alone does not constitute waiver)

PI when required • offenses where penalty prescribed is at least

4 years, 2 months and 1 day WITHOUT REGARD to fine

• a new PI required if there is substitution of the complaint or information

PI when not required • offenses where penalty prescribed is below 4

years, 2 months and 1 day • offenses punishable by FINE only • lawful arrest under Section 6 of Rule 112 if the complaint or information has been

PRELIMINARY INVESTIGATION: PERSONAL STATUTORY RIGHT The right to preliminary investigation is a personal right covered by statute and may be waived expressly or by implication. Absence of preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused. REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION

1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground

2. Insist on a preliminary investigation

3. File a certiorari, if refused

4. Raise lack of preliminary investigation as error on appeal

5. File for prohibition As preliminary investigation is NOT a part of the trial, the dismissal of the case by the investigator will not constitute double jeopardy and will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another preliminary investigation (U.S. vs. Marfori, 35 Phil. 666). Section 2. Officers authorized to conduct preliminary investigation. PERSONS AUTHORIZED TO CONDUCT A PRELIMINARY INVESTIGATION

1. Provincial or city fiscal and their assistants 2. Judges of the MTC and MCTC 3. National and regional state

prosecutors 4. Such other officers as may be authorized by

law such as: the COMELEC, Ombudsman and PCGG

Officers authorized by law: 1. Provincial or City Prosecutors and their

assistants 2. National and Regional State Prosecutors 3. COMELEC

duly authorized legal officers; for all election offenses punishable under the election code

4. PCGG for offenses involving the ill-gotten wealth of President Marcos

5. Ombudsman • Graft investigator Officers, Special

Prosecution Officers, any lawyer in government service deputized; for preliminary investigation and to prosecute ALL criminal cases involving public officials and employees, NOT ONLY those within the jurisdiction of the Sandiganbayan BUT ALSO those within the jurisdiction of the regular courts (Uy v. Sandiganbayan)

• Special Prosecutor is limited to conduct PI within the jurisdiction of Sandiganbayan

only but this DOES NOT confine the scope of the investigatory and prosecutory power of the Ombudsman to act on ALL complaints against officers and employees of the government

• Ombudsman has the PRIMARY jurisdiction for PI of offenses cognizable by the Sandiganbayan; may take over the investigation of the Department of Justice at any stage of the PI; EXCLUSIVE jurisdiction to FILE and PROSECUTE in the Sandiganbayan

• Ombudsman has a shared or concurrent authority with the other investigating agency (DOJ) in respect to the offenses cognizable by the regular courts

• Ombudsman is granted more than the usual powers of the prosecutor. It is vested with the power to investigate complaints against public officers on its own initiative i.e. out of media reports and anonymous complaints

A.M. No. 05-8-26-SC (Effective October 3, 2005) removed the authority of first level judges to conduct preliminary investigations Section 3. Procedure

Filing of the complaintAccompanied by the affidavits

and supporting documents.

Within 10 days after the filing, the investigating officer shall either

dismiss or issue subpoena.

If subpoena is issued, respondent shall submit a counter-affidavit and other supporting documents within

10 days from receipt thereof.

Hearing (optional). It shall be held

within 10 days from submission of counter-affidavits or from the expiration of the period of their

submission.

Resolution ofinvestigating prosecutor

If respondent cannot be subpoenaed, or if subpoenaed but does not submit his counter-affidavit within 10 days, investigating officer shall resolve the complaint based on the evidence presented by the complainant. Criminal investigation v. PI

• a fact finding investigation carried out by law enforcement officers for the purpose of determining whether they should file a complaint for PI • PI conducted for the purpose of

determining if there is a probable cause to hold a person for trial • presence of counsel not mandatory in PI

since it is a summary proceeding and is merely inquisitorial but if a confession is obtained from respondent without a counsel, such confession would be INADMISSIBLE (Republic v. Albano)

RIGHTS OF THE ACCUSED DURING PI 1. speedy disposition of cases 2. to be notified of the proceeding when

issued subpoena 3. to examine evidence 4. to submit evidence 5. to be present in a clarificatory hearing 6. to file motion for reinvestigation 7. to file petition for review 8. to file motion to quash the information 9. to post bail

The Rules do not require the presence of the respondent in the Preliminary Investigation, what is required is that he be given the opportunity to controvert the evidence of the complainant by submitting counter-affidavits.

10 Procedural Steps in PI:

1. Filing of Complaint/ Completion of Affidavit

• complaint must state the address of the respondent; • must be accompanied by affidavits of the

complainant and his witnesses and other supporting documents in such number of copies as there are respondents plus two copies for official file • affidavits must be sworn before any

prosecutor or government official authorized to administer oath* or in their absence/unavailability, any notary public • the officer who administered the oath

must certify that: a) he has personally examined the affiant, and b) he is satisfied that the latter voluntarily executed and understood his affidavit

• the affidavits need to be sworn to hold the person making it liable for perjury in case of falsehoods

*Oath/Affirmation refers to an act in which an individual on a single occasion: a) appears in person before the notary public; b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and c) avows under penalty of law to the whole truth of the content of the instrument or document. (2004

Rules on Notarial Practice)

2. Dismiss/Issue Subpoena within 10 days after filing of complaint, investigating officer shall either: 1. Dismiss, or 2. Issue subpoena to respondent attaching a

copy of the complaint and supporting affidavits and documents

• respondent has the right to examine the evidence submitted by complainant which he may not have been furnished and to copy them at his own expense • if evidence voluminous, complainant may be

required to specify those which he intend to present against respondent and shall be made

available for examination and copying by the respondent at his expense • objects as evidence need not be furnished to

a party but shall be made available for examination, copying or photographing at the expense of the requesting party

3. Counter Affidavit/Reply • within 10 days from receipt of subpoena and

the attached affidavits and documents, respondent shall submit his counter affidavit and that of his witnesses and other documents relied upon for his defense • the counter affidavit shall be subscribed and

sworn to and certified as provided in par. (a) of Section 3, Rule 112 and copies thereof furnished to the complainant • shall not be allowed to file motion to dismiss

in lieu of counter affidavit

4. Resolution by Fiscal if respondent cannot be subpoenaed or does not submit counter affidavit within the 10 day period, the investigating officer shall resolve the complaint based on the evidence Presented

5. Clarificatory Hearing (Optional) • if there are facts and issues to be clarified

from a party or a witness, the investigating officer may set a clarificatory hearing • parties have the right to be present in the

hearing but WITHOUT right to examine or cross examine however they may submit to the investigating officer questions which may be asked to the party or witnesses • hearing shall be held within 10 days from

the submission of the counter affidavits or from expiration of the period for submission • shall be terminated within five days within

10 days after the PI, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial

Section 4. Resolution of investigating prosecutor and its review.

6. Issuance of Resolution and Information or Dismissal If Probable Cause Found: • if the investigating officer finds cause to

hold respondent for trial, he shall prepare a resolution to that effect and the corresponding information therefor

• the information must be accompanied by a sworn certification that:

a) he had examined the complainant and the latter’s witnesses; b) there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; c) the accused was duly apprised of the complaint and the evidence against him, and d) he was afforded the opportunity to submit the controverting evidence

• omission of the requisite certification is not fatal to the information (People v. Gomez) If No Probable Cause Found:

• if the investigating prosecutor finds no probable cause exists against the respondent, he must dismiss the case

PROBABLE CAUSE:

• the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutors, that the person charged was guilty of the crime for which he was prosecuted

7. Submission to Superior Officers • the assistant prosecutor or state

prosecutor, regardless of conclusion reached must forward the records of the case and his resolution to the provincial or city fiscal or the chief state prosecutor within five days from resolution

• resolution at best recommendatory; no complaint or information may be filed or dismissed without prior written authority or approval of the provincial or city prosecutor or the chief state prosecutor

• the findings of the investigating prosecutor may be reversed or modified by the provincial or city fiscal or chief state prosecutor

• if the investigating prosecutor recommends the dismissal of the case but his findings are reversed by the superior officer on the ground that probable cause exists, the provincial or city prosecutor may himself file or direct another assistant prosecutor to file the corresponding information without need for another preliminary investigation

• the provincial or city prosecutor or chief state prosecutor is mandated to take appropriate action within 10 days from receipt of records

• whatever action he takes, he must inform the parties

REMEDIES

1. petition for mandamus 2. violation of Art. 27 of the NCC

(damages) 3. violation of Art. 208

(Prevaricacion) Revised Penal Code

4. Appeal to the DOJ – for the appointment of a new prosecutor

5. file an administrative case 6. file a new complaint, if no double

jeopardy 8. Petition for Review (Department of Justice,

Office of the President, Office of the Ombudsman) Under the Secretary of Justice (Department Circular No. 70) • the Secretary of Justice may, upon proper

petition or motu proprio reverse the resolution of the provincial or city prosecutor or chief state prosecutor and thereafter direct the fiscal concerned to file the corresponding information without conducting another PI or dismiss or move for dismissal of the complaint or information

• under the power of supervision and control over prosecuting officers, the Secretary of Justice is the ultimate authority to decide whether or not to file the information

• if the information was already filed in court but the accused filed a petition for review with the Secretary of Justice, the court is

bound to suspend the arraignment of the accused for a period of not exceeding sixty days

• if the Secretary of Justice does not allow the filing of a criminal complaint based on insufficiency of evidence, complainant can file action for damages against offender based on Art. 35 of the New Civil Code; requires mere preponderance of evidence

Under the Office of the President (Memorandum Circular No. 58) • an appeal or petition may be filed with the

Office of the President for review of the decisions/orders/resolutions issued by the Secretary of Justice concerning PI of criminal cases involving offenses punishable by RECLUSION PERPETUA to DEATH only wherein new and material issues are raised which were not previously presented to the Department of Justice and were not ruled upon provided that the prescription of the offense is due to lapse within six months from notice of the questioned resolution

Under the Office of the Ombudsman • when there is grave abuse of discretion in

the resolution and decision of the Ombudsman in criminal cases or PI, a petition for certiorari under Rule 65 may be filed before the Supreme Court

9. Filing in Court by Department of Justice or

Ombudsman Section 5. When warrant of arrest may issue.

10. Issuance of Warrant of Arrest by the Court • Article IV Section 2 of the 1987 Constitution

mandates that no warrant of arrest shall issue except upon probable cause to be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce • the proceeding for the determination of the

existence of probable cause for the purpose of issuing a warrant of arrest is called PRELIMINARY EXAMINATION

• the probable cause needed for the issuance of a warrant of arrest is different from the probable cause found by the investigating officer in the preliminary investigation such that a judge fails the constitutional mandate if he merely relies on the certification or report of the investigating officer • the finding of a judge or probable cause for the

issuance of warrant of arrest is not subject to judicial review

PROBABLE CAUSE • such reasons, supported by the facts and

circumstances, as will warrant a cautious man in the belief that his action and the means taken in prosecuting are legally just and proper

• the sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him, not that the particular person committed the crime charged, but that there is probable cause for believing that the person whose arrest is sought might have committed the crime charged (US v. Ocampo)

EXECUTIVE vs JUDICIAL DETERMINATION OF PROBABLE CAUSE Executive Determination • one made during the PI; function that pertains

to the public prosecutor who has the quasi-judicial authority to determine whether or not a criminal case must be filed in court; • whether or not the prosecuting investigator has

made a correct ascertainment of the existence of probable cause is a matter that the trial court itself does not and may not be compelled to pass upon

Judicial Determination • one made by the judge to ascertain whether a

warrant of arrest should be issued against the accused; he must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice • if the judge finds no probable cause to exist, he

cannot be forced to issue a warrant of arrest

Searching Questions for issuance of search warrant

• such questions as have a tendency to show the commission of a crime and the perpetrator thereof e.g. nature of the offense; the date, time and place of its commission; the subject, his age, education, financial status, etc.

Preliminary Investigation v. Preliminary Examination 1. PI an executive function; PE a judicial

function 2. PI conducted by a prosecutor, the PCGG or

the COMELEC; PE conducted by judges only 3. PI may not be done ex parte; PE may be

done ex parte

Issuance by the Regional Trial Court judge is mandated, within 10 days from filing of the complaint or information, to personally evaluate the resolution of the prosecutor and its supporting evidence; he may: 1. immediately dismiss if it fails to establish

probable cause; 2. issue a warrant of arrest or commitment

order (if arrest done under Section 6 of Rule 112) if he finds probable cause;

3. order the prosecutor to present additional evidence within five days from notice in case of doubt of the existence of probable cause

• the issue must be resolved within 30 days from the filing of the complaint or information

• the issuance of the warrant of arrest by the judge is not a ministerial function; it calls for the exercise of judicial discretion

Issuance by the Municipal Trial Court • the issuance is similar to that of the Regional

Trial Court under paragraph (a) of Section 5 Rule 112

John Doe/Juan de la Cruz Warrants • as a rule, general warrants are void unless the

John Doe warrant contains the descriptio personae that particularly describes the person to be arrested

Warrant of Arrest When Not Necessary 1. if the accused is already under detention

2. lawful arrest under Section 6 Rule 112 3. offense penalized by fine only

REMEDIES of a PARTY issued with a WARRANT of ARREST 1. post bail 2. ask for an investigation 3. file for a petition for review 4. file a motion to quash the information 5. if denied, appeal the judgment after trial

*remedy thru certiorari not available

Section 6. When warrant of arrest may issue Probable Cause - presupposes a reasonable ground for belief in the existence of facts warranting the proceedings complained of; - an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime charged. If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested and hold him for trial. If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of warrant of arrest. The RTC judge need NOT personally examine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to:

1. Personally evaluate the report and the supporting documents submitted during the preliminary investigation by the fiscal; and

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

INSTANCES WHEN MTC MAY CONDUCT PRELIMINARY INVESTIGATION:

1. cases cognizable by the RTC may be filed with the MTC for

preliminary investigation; 2. cases cognizable by the MTC because it is

an offense where the penalty prescribed by

law is at least four (4) years, two (2) months and one (1) day without regard to the fine.

In either situation, the MTC is authorized to issue a warrant of arrest if there is necessity of placing the respondent under immediate custody, in order not to frustrate the ends of justice. CONDITIONS BEFORE THE INVESTIGATING MUNICIPAL TRIAL JUDGE CAN ISSUE A WARRANT OF ARREST (Herrera, p. 282)

1. Have examined in writing and under oath the complainant and his witnesses by searching questions and answers; searching questions and answers – such questions as may have the tendency to show the commission of the crime and the perpetrator thereof;

2. Be satisfied that a probable cause exists; and

3. That there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.

If the MTC judge found probable cause but did not believe that the aforesaid conditions were met, he cannot be compelled by mandamus to issue the same. REMEDY: The provincial fiscal, if he believes that the accused should be immediately placed in custody, may file the corresponding information so that the RTC may issue the necessary warrant of arrest (Samulde vs. Salvani, Jr., G.R. No. 78606, Sept. 26, 1988). While the judge may rely on the fiscal’s certification thereof, the same is NOT conclusive on him as the issuance of said warrant calls for the exercise of judicial discretion and, for that purpose, the judge may require the submission of affidavits of witnesses to aid him in arriving at the proper conclusion, OR he may require the fiscal to conduct further preliminary investigation or reinvestigation. INSTANCES WHEN WARRANT OF ARREST NOT NECESSARY

1. if the accused is already under detention;

2. if the complaint or information was filed after the accused was lawfully arrested without warrant;

3. if the offense is punishable by fine only.

• Rule applicable only to arrests for an offense punishable by imprisonment of at least 4 years, 2 months and 1 day since there is no need for PI for offenses punishable by less than 4 years, 2 months and 1 day

• prosecuting officer can file information even without PI under this Section if the warrantless arrest is pursuant to paragraphs 1(a) and (b), Section 5, Rule 113; the person arrested must be delivered to the nearest police station and proceeded against in accordance with Rule 112, Section 6

• the complaint or information may be filed without need for a PI provided that an INQUEST PROCEEDING has been conducted in accordance with the rules

INQUEST • an informal and summary investigation

conducted by a public prosecutor in a criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly charged in court

• in absence of inquest prosecutor, the offended party or any peace officer may file complaint directly in court on the basis of their affidavits

• when a person is taken into custody to answer for an offense, the arrested person has to be charged at once in court lest the arresting officer be held liable for delay in the delivery of a detained person to proper judicial authorities as provided for in Article 125 of the Revised Penal Code

• if the person arrested wishes to avail himself of PI prior to filing of the complaint or information, he must sign a waiver of the provisions of Article 125 with the assistance of a lawyer

• in any case, the accused may apply for bail and the investigation must be terminated within fifteen days from its inception

• if case has been filed in court without PI, the accused may within five days from time he learns of filing of the information to ask for a PI

Section 7. When accused lawfully arrested without warrant. TWO SITUATIONS CONTEMPLATED UNDER THIS RULE:

1. When a person is lawfully arrested without a warrant for an offense requiring a preliminary investigation (sec. 1, Rule 112) and no complaint or information has yet been filed, he may ask for a preliminary investigation by signing a waiver of the provisions of Art. 125 of the RPC in the presence of his counsel.

2. When the complaint or information was filed without preliminary investigation, the accused may, within 5 days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule.

The 5-day period is MANDATORY, failure to file the motion within the said period amounts to waiver of the right to ask for preliminary investigation. Where the information was amended without a new preliminary investigation having been conducted, the 5-day period is computed from the time the accused learns of the filing of said amended information. Where the trial court has granted a motion for reinvestigation, it must hold in abeyance the arraignment and trial of the the accused until the prosecutor shall have conducted and made a report on the result of such reinvestigation. The right to bail pending Preliminary Investigation under Section 7, Rule 112, a person lawfully arrested may post bail before the filing of the information or even after its filing without waiving his right to

preliminary investigation, provided that he asks for a preliminary investigation by the proper officer within the period fixed in the said rule (People vs. Court of Appeals, May 29, 1995).

Section 8. Records Records of the preliminary investigation shall NOT automatically form part of the records of the case. Courts are not compelled to take judicial notice thereof. It must be introduced as an evidence. Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. PROCEDURE TO BE FOLLOWED IN CASES WHICH DO NOT REQUIRE PRELIMINARY INVESTIGATION

1. Evaluate the evidence presented 2. Conduct searching questions or answers 3. Require the submission of additional

evidence For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where the accused fails to appear after being summoned. If the complaint is filed with the prosecutor involving an offense punishable by imprisonment of less than 4 years, 2 months and 1 day, the procedure in Rule 112, Section 3 (a) shall be observed. If the complaint is filed with the MTC, the same procedure under Rule 112, Section 3 (a) shall be observed.

RULE 117MOTION TO QUASH

Section 1. Time to move to quash. Motion to Quash - this presupposes that the accused hypothetically admits the facts alleged, hence the court in resolving the motion cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information, except those admitted by the prosecution. GENERAL RULE: The accused may move to quash the complaint or information at any time BEFORE entering his plea. EXCEPTION - Instances where a motion to quash may be filed AFTER plea:

1. failure to charge an offense 2. lack of jurisdiction over the offense

charged 3. extinction of the offense or penalty 4. the defendant has been in former

jeopardy.

Motion to Quash Demurrer to Evidence

filed before the defendant enters his

plea

filed after the prosecution has rested its case

Does not go into the merits of the

case but is anchored on matters not directly

related to the question of guilt or

based upon the inadequacy of the evidence adduced by the prosecution in

support of the accusation

innocence of the accused

Governed by Rule 117 of the Rules of Criminal Procedure

governed by Rule 119 of the Rules of Criminal Procedure

Section 2. Form and contents. FORM AND CONTENTS OF A MOTION TO QUASH

1. in writing 2. signed by the accused or his counsel 3. shall specify distinctly the factual and

legal grounds therefor. The court shall consider no grounds other than those stated in the motion, EXCEPT lack of jurisdiction over the offense charged and when the information does not charge an offense. A motion to suspend the issuance of a warrant of arrest should be considered as a motion to quash if the allegations therein are to the effect that the facts charged in the information do not constitute an offense. RESOLUTION OF A MOTION TO QUASH A motion to quash must be resolved BEFORE trial and cannot defer the hearing and determination of said motion until trial on the merits as it would impair the right of the accused to speedy trial. It may also be resolved at the preliminary investigation since the investigating officer or judge has the power to either dismiss the case or bind the accused over for trial by the proper court, depending on its determination of lack or presence of probable cause. Section 3. Grounds.

1. That the facts charged do not constitute an offense;

2. That the court trying the case has no jurisdiction over the offense charged;

3. That the court trying the case has no jurisdiction over the person of the accused;

4. That the officer who filed the information had no authority to do so;

5. That it does not conform substantially to the prescribed form;

6. That more that one offense is charged except when a single punishment for various offenses is prescribed by law;

7. That the criminal action or liability has been extinguished;

8. That it contains averments which, if true would constitute a legal excuse or justification; and

9. That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

Section 4. Amendment of complaint or information If an alleged defect in the complaint or information, which is the basis of a motion to quash, can be cured by amendment, the court shall order the amendment instead of quashing the complaint or information. If, after the amendment, the defect is still not cured, the motion to quash should be granted. Section 5. Effect of sustaining the motion to quash. EFFECTS IF COURT SUSTAINS THE MOTION TO QUASH

1. If the ground of the motion is either: a) that the facts charged do not

constitute an offense; or b) that the officer who filed the

information had no authority to do so, or

c) that it does not conform substantially to the

prescribed form; or d) that more than one offense is

charged, the court may order that another information be filed or an amendment thereof as the case may be within a definite period. If such order is NOT MADE, or if having been made, another information is NOT FILED within a time to be specified in the order, or within such time as the court may allow, the accused, if in custody, shall be discharged therefrom, unless he is also in custody on some other charge.

2. If the motion to quash is sustained

upon any of the following grounds: a) that a criminal action or liability has

been extinguished;

b) that it contains averments which, if true, would constitute a legal excuse or justification; or

c) that the accused has been previously convicted or acquitted of the offense charged,

the court must state, in its order granting the motion, the release of the accused if he is in custody or the cancellation of his bond if he is on bail.

3. If the ground upon which the motion to

quash was sustained is that the court has NO jurisdiction over the offense, the better practice is for the court to remand or forward the case to the proper court, not to quash the complaint or information.

The prosecution may elevate to the Higher Courts an order granting a motion to quash. PROCEDURE IF MOTION TO QUASH IS DENIED

1. accused should plead;

2. accused should go to trial without prejudice to the special defenses he invoked in the motion;

3. appeal from the judgment of conviction, if any, and interpose the denial of the motion as an error.

An order denying a motion to quash is INTERLOCUTORY and NOT APPEALABLE. Appeal in due time, as the proper remedy, implies a previous conviction as a result of a trial on the merits of the case and does not apply to an interlocutory order denying a motion to quash. The denial by the trial court of a motion to quash CANNOT be the subject of a petition for certiorari, prohibition or mandamus in another court of coordinate rank. Section 6. Order sustaining the motion to quash not a bar to another prosecution. A motion SUSTAINING the motion to quash is NOT a bar to another prosecution for the same offense UNLESS:

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

2. that the accused has been previously convicted or in jeopardy of being convicted or acquitted of the offense charged.

Section 7. Former conviction or acquittal; double jeopardy. Double Jeopardy means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. REQUISITES FOR DOUBLE JEOPARDY UNDER SECTION 7 It is necessary that in the first case that-

1. the complaint or information or other formal charge was sufficient in form and substance to sustain a conviction;

2. the court had jurisdiction; 3. the accused had been arraigned and

had pleaded; and 4. he was convicted or acquitted or the

case was dismissed without his express consent;

5. When all these circumstances are present, they constitute a BAR to a second prosecution for – 1. the same offense, or an attempt to commit the said offense, or a frustration of the said offense, or any offense which necessarily includes or is necessarily included in the first offense charged.

The discharge of a defendant on a preliminary investigation is NOT such an adjudication in his favor as will bar subsequent prosecution for the offense. This is because, a preliminary investigation is not a trial and does not have for its object that of determining definitely the guilt of the accused. Further, the accused has not yet been arraigned. DISMISSAL vs. ACQUITTAL Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendant’s guilt beyond reasonable doubt; but Dismissal does not decide the case on the merits or that the defendant is not guilty. If an act is punished by a law and an ordinance, even if they are considered as different offenses, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. If a single act is punished by two different provisions of law or statutes, but each provision requires proof of an additional fact which the other does not so require, neither conviction

nor acquittal in one will bar a prosecution for the other. (Perez vs. Court of Appeals, 163 SCRA 236) TESTS FOR DETERMINING WHETHER THE TWO OFFENSES ARE IDENTICAL: A. SAME OFFENSE TEST - There is IDENTITY

between two offenses not only when the second offense is exactly the same as the first, but ALSO when the second offense is an attempt to or frustration of, OR is necessarily included in the offense charged in the first information.

EXCEPTIONS TO THE IDENTITY RULE: 1. The graver offense developed due to

supervening facts arising from the same act or omission constituting the former charge.

2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information.

3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party; except when the offended party failed to appear during the arraignment.

In any of these instances, such period of the sentence as may have been served by the accused under the former conviction shall be credited against and deducted from the sentence he has to serve should he be convicted under the subsequent prosecution. B. SAME EVIDENCE TEST - whether the facts

as alleged in the second information, if proved, would have been sufficient to sustain the former information, or from which the accused may have been acquitted or convicted.

Section 8. Provisional dismissal.

GENERAL RULE: Where the case was dismissed “provisionally” with the consent of the accused, he CANNOT invoke double jeopardy in another prosecution therefor OR where the case was reinstated on a motion for reconsideration by the prosecution. EXCEPTIONS: Where the dismissal was actually an acquittal based on:

a) lack or insufficiency of the evidence; or

b) denial of the right to speedy trial, hence, even if the accused gave his express consent to such dismissal or moved for such dismissal, such consent would be immaterial as such dismissal is actually an acquittal.

REQUISITES

1. consent of the prosecutor 2. consent of the accused 3. notice to the offended party

If a case is provisionally dismissed with the consent of the prosecutor and the offended party, the failure to reinstate it within the given period will make the dismissal permanent. PERIOD FOR REINSTATEMENT:

a. offenses punishable by imprisonment not exceeding 6 years = ONE YEAR b. offenses punishable by imprisonment of more than 6 years = TWO YEARS

Otherwise the dismissal shall be removed from being provisional and becomes permanent. Section 9. Failure to move to quash or to allege any ground therefor. All grounds for a motion to quash are WAIVED if NOT seasonably raised, EXCEPT:

a) when the information does not charge an offense;

b) lack of jurisdiction of the court; c) extinction of the offense or penalty;

and d) double jeopardy.

RULE 119 TRIAL

Section 1. Time to prepare for trial. Trial - the examination before a competent tribunal according to the laws of the land, of the facts put in issue in a case for the purpose of determining such issue. The trial shall commence within 30 days from receipt of the pre-trial order. Section 2. Continuous trial until terminated; postponements. CONTINUOUS TRIAL SYSTEM Trial once commenced shall continue from day to day as far as practicable until terminated; but it may be postponed for a reasonable period of time for good cause. LIMITATION OF THE TRIAL PERIOD It shall in no case exceed 180 days from the first day of the trial, except as otherwise provided by the Supreme Court. Requisites before a trial can be put-off on account of the absence of a witness:

1. that the witness is material and appears to the court to be so

2. that the party who applies has been guilty of no neglect

3. that the witnesses can be had at the time to which the trial is deferred and

incidentally that no similar evidence could be obtained

4. that an affidavit showing the existence of the above circumstances must be filed.

Remedies of accused where a prosecuting officer without good cause secures postponements of the trial of a defendant against his protest beyond a reasonable period of time:

1. mandamus to compel a dismissal of the information

2. if he is restrained of his liberty, by habeas corpus to obtain his freedom.

The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for trial well-defined at pre-trial and the whole proceedings terminated and ready for judgment within 90 days from the date of initial hearing, unless for meritorious reasons an extension is permitted. The system requires that the Presiding Judge:

1. adhere faithfully to the session hours prescribed by laws;

2. maintain full control of the proceedings; and

3. effectively allocate and use time and court resources to avoid court delays.

The non-appearance of the prosecution at the trial, despite due notice, justified a provisional dismissal or an absolute dismissal depending upon the circumstances. Section 4. Factors for granting continuance. PURPOSE: To control the discretion of the judge in the grant of continuance on his instance or on motion of any party litigant.

Section 5. Time limit following an order for new trial. The trial shall commence within 30 days from the date the order for a new trial becomes final. Section 7. Public Attorney’s duties where accused is imprisoned. These public attorneys enter their appearance in behalf of the accused upon his request or that of his relative or upon being appointed as counsel de oficio by the court. Section 8. Sanctions. Kinds:

a. criminal b. administrative c. contempt of court

Section 11. Order of Trial ORDER OF TRIAL:

1. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability

2. The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case.

3. The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue

4. Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda.

5. When the accused admits the act or omission charged in the complaint or

information but interposes a lawful defense, the order of trial may be modified.

GENERAL RULE: The order in the presentation of evidence must be followed. The accused may not be required to present his evidence first before the prosecution adduces its own proof. EXCEPTION: Where a reverse procedure was adopted without the objection of the defendant and such procedure did not prejudice his substantial rights, the defect is not a reversible error. A departure from the order of the trial is not reversible error as where it was agreed upon or not seasonably objected to, but not where the change in the order of the trial was timely objected by the defense. Where the order of the trial set forth under this section was not followed by the court to the extent of denying the prosecution an opportunity to present its evidence, the judgment is a nullity. (People vs. Balisacan) Section 12. Application for examination of witness for accused before trial. Accused may have his witness examined conditionally in his behalf BEFORE trial upon motion with notice to all other parties. The motion must state:

1. name and residence of witness 2. substance of testimony 3. witness is so sick to afford reasonable

ground to believe that he will not be able to attend the trial or resides more that 100 km and has no means to attend the same, or other similar circumstances exist that would make him unavailable or prevent him from attending trial.

Section 13. Examination of defense witness; how made. If the court is satisfied that the examination of witness is necessary as provided in SECTION 4, order shall be made and a copy served on the fiscal. The examination shall be taken before any judge or if not practicable any member of the Bar in good standing designated by the trial court, or by a lower court designated by a court of superior jurisdiction which issue the order. Section 14. Bail to secure appearance of material witness. If the court is satisfied, upon proof or oath, that a material witness will not testify when so required, it may on motion of either party order the witness to post bail in such sum as may be deemed proper. Should the witness refuse to post such bail as required, the court may commit him to prison until he complies or is legally discharged after his testimony has been taken. Section 15. Examination of witness for the prosecution. The conditional examination of prosecution witnesses shall be conducted before the judge or the court where the case is pending and in the presence of the accused, unless he waived his right after reasonable notice. The accused will have the right to cross-examine such prosecution witness, hence such statements of the prosecution witnesses may thereafter be admissible in behalf of or against the accused (Regalado, p. 460). Section 16. Trial of several accused GENERAL RULE: When two or more persons are jointly charged with an offense, they shall be tried jointly. This

rule is so designed as to preclude a wasteful expenditure of judicial resources and to promote an orderly and expeditious disposition of criminal prosecutions. EXCEPTION: The court, upon motion of the fiscal or of any of the defendants, may order a separate trial for one or more accused. The granting of a separate trial when two or more defendants are jointly charged with an offense is purely discretionary with the trial court. The motion for separate trial must be filed BEFORE the commencement of the trial and cannot be raised for the first time on appeal. If a separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter. In joint trial, it would be admissible if the latter had the opportunity for cross-examination. Section 17. Discharge of accused to be state witness. Motion to discharge should be made by the prosecution BEFORE resting its case. REQUISITES FOR DISCHARGE

1. absolute necessity for the testimony 2. no other direct evidence available for

the prosecution 3. testimony can be substantially

corroborated in its material points 4. accused not the most guilty 5. accused has never been convicted of an

offense involving moral turpitude

Absence of any of the requisites for the discharge of a particeps criminis is a ground for objection to the motion for his discharge, BUT such objection must be raised BEFORE the discharge is ordered. EFFECTS OF DISCHARGE

1. Evidence adduced in support of the discharge shall automatically form part of the trial;

2. If the court denies the motion to discharge the accused as state witness, his sworn statement shall be inadmissible in evidence;

3. Discharge of accused operates as an acquittal and bar to further prosecution for the same offense.

EXCEPTIONS: 1. If the accused fails or refuses to testify

against his co-accused in accordance with his sworn statement constituting the basis of the discharge

2. Failure to testify refers exclusively to defendant’s will or fault

3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him.

Section 19. When mistake has been made in charging the proper offense. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, the court should dismiss the action and order the filing of a new information charging the proper offense. This rule is predicated on the fact that an accused person has the right to be informed of the nature and cause of the accusation against him, and to convict him of an offense different from that charged in the complaint or information would be an unauthorized denial of that right. (U.S. vs. Campo, 23 Phil. 369) Section 20. Appointment of acting prosecutor. See Section 5, Rule 110.

Section 21. Exclusion of the public. GENERAL RULE: The accused has the right to a public trial and under ordinary circumstances, the court may not close the door of the courtroom to the general public. EXCEPTION: Where the evidence to be produced during the trial is of such character as to be offensive to decency or public morals, the court may motu propio excludes the public from the courtroom. Section 22. Consolidation of trials of related offenses. This contemplates a situation where separate informations are filed:

1. for offenses founded on the same facts; 2. for offenses which form part of a series

of offenses of similar character

Section 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence:

1. on its own initiative after giving the prosecution the opportunity to be heard; or

2. upon demurrer to evidence filed by the accused with or without leave of court. The arrest rule allows the accused in a criminal case to present evidence even after a motion to dismiss PROVIDED the demurrer was made with the express consent of the court.

The filing of the motion to dismiss WITHOUT leave of court results in the submission of the case for decision on the basis of the evidence on record and does not lie from such order denying the motion to dismiss. If said motion to dismiss is sustained, such dismissal being on the merits is equivalent to an

acquittal, hence the prosecution cannot appeal as it would place the accused in double jeopardy.

An order denying a demurrer to evidence being interlocutory is NOT APPEALABLE. Section 24. Reopening. At any time BEFORE finality of the judgment of conviction, the judge may, motu propio or upon motion, with hearing in either case, reopen the proceedings to avoid miscarriage of justice. The proceedings shall be terminated within 30 days from the order granting it.