PALS Criminal Procedure

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CRIMINAL PROCEDURE

PART III

Criminal Procedure

5.1. General matters

Venue in criminal case

Venue in criminal cases is jurisdictional. The place where the crime was committed

determines not only the venue of the action but is an essential element of jurisdiction. It is a

fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense

should have been committed or any one of its essential ingredients should have taken place

within the territorial jurisdiction of the court. (Isip vs People)

Criminal Jurisdiction of Regional Trial Courts as Special Agrarian Courts; jurisdiction in criminal

offenses for violation of RA No. 6657 is excluded from the power of DAR

Special Agrarian Courts, which are Regional Trial Courts, are given original and exclusive

jurisdiction over two categories of cases, to wit: (1) "all petitions for the determination of just

compensation to landowners" and (2) "the prosecution of all criminal offenses under [R.A. No.

6657]." The provisions of 50 must be construed in harmony with this provision by considering

cases involving the determination of just compensation and criminal cases for violations of R.A.

No. 6657 as excepted from the plenitude of power conferred on the DAR. Indeed, there is a

reason for this distinction. The DAR is an administrative agency which cannot be granted

jurisdiction over cases of eminent domain (for such are takings under R.A. No. 6657) and overcriminal cases. (LBP vs. Belista)

Jurisdiction to issue hold-departure orders within the RTC

Circular No. 39-97 limits the authority to issue hold-departure orders to criminal cases

within the jurisdiction of second level courts. Paragraph No. 1 of the said circular specifically

provides that "hold- departure orders shall be issued only in criminal cases within the exclusive

jurisdiction of the regional trial courts." (Mondejar vs. Buban)

Venue in Libel Cases

The criminal and civil action for damages in cases of written defamations shall be filed

simultaneous or separately with the Regional Trial Court of the province or city where the

libellous article is printed and first published or where any of the offended parties actually

resides at the time of the commission of the offense.(Mary Rose A. Boto vs. Senior AssistantCity Prosecutor Villena, A.C. No. 9684, September 18, 2013)


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Venue in estafa

In criminal cases, venue is jurisdictional. A court cannot exercise jurisdiction over a

person charged with an offense committed outside its limited territory. The prosecution must

not only prove that the offense was committed, it must also prove the identity of the accused

and the fact that the offense was committed within the jurisdiction of the court . In this case,the prosecution failed to show that the offense of estafa under sec. 1(b) of Art. 315 of the

Revised Penal Code (RPC) was committed within the jurisdiction of the Regional Trial Court of

Makati City. Other than the lone allegation in the information, there is nothing in the

prosecution evidence which even mentions that any of the elements of the offense were

committed in Makati. The Affidavit of Complaint executed by Elizabeth does not contain any

allegation as to where the offense was committed, and there is nothing in the documentary

evidence offered by the prosecution that points to where the offense, or any of its elements,

was committed. Although the prosecution alleged that the check issued by petitioner was

dishonored in a bank in Makati, such dishonor is not an element of the offense of estafa underArticle 315, par. 1(b) of the RPC. There being no showing that the offense was committed within

Makati, the Regional Trial Court of that city has no jurisdiction over the case. (Hector Trenas v.People of the Philippines,G.R. No. 195002, January 25, 2012)

5.1.1. Distinguish jurisdiction over subject matter from jurisdiction over person of the

Accused

The jurisdiction of a court over the criminal case is determined by the allegations in the

complaint or information. And once it is so shown, the court may validly take cognizance of the

case. However, if the evidence adduced during the trial show that the offense was committed

somewhere else, the court should dismiss the action for want of jurisdiction. (Foz vs. Fajardo)

5.1.2. Criminal jurisdiction

What is criminal jurisdiction?

It is the authority to hear and try a particular offense and impose the punishment for it

(People v. Marinao, 71 SCRA 600, 604).

Requisites:

1. Jurisdiction over the subject matteris the power to hear and determine cases of thegeneral class to which the proceedings in question belong (Reyes v. Diaz, 73 Phil 484); by virtue

of the imposable penalty or its nature, is one which the court is by law authorized to take

cognizance of; conferred by law.

2. Jurisdiction over the territory where the offense was committed the offense must

have been committed within the territorial jurisdiction of the court; jurisdiction over the

territory; cannot be waived
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3. Jurisdiction over the person of the accused the person charged with the offense

must have been brought to its presence for trial, forcibly by warrant of arrest or upon his

voluntary submission to the court

5.1.3. Jurisdiction of criminal courts

Jurisdiction of the Sandiganbayan

In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter

must be committed by, among others, officials of the executive branch occupying positions of

regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation

and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those

that are classified as Grade 26 and below may still fall within the jurisdiction of the

Sandiganbayan provided that they hold the positions thus enumerated by the same law. (Peoplevs. Sandiganbayan)

Powers included in the primary jurisdiction of the Office of the Ombudsman

The Constitution and R.A. No. 6770 endowed the Office of the Ombudsman with wide

latitude, in the exercise of its investigatory and prosecutory powers, to pass upon criminal

complaints involving public officials and employees. Specifically, the determination of whether

probable cause exists is a function that belongs to the Office of the Ombudsman. Whether a

criminal case, given its attendant facts and circumstances, should be filed or not is basically its

call. (Jesse Philip B. Eijan Santos vs. Special Presidential Task Force 156, represented by Atty.Allan U. Ventura, G.R. No. 203696, June 2, 2014)

Section 15 of the Ombudsman Act of 1989 provides that the Office of the Ombudsmanhas primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its

primary jurisdiction, it may take over, at any stage, from any investigatory agency of the

Government, the investigation of such cases. This power to take over a case at any time is not

given to other investigative bodies. This means that the power of the Ombudsman to

investigate cases cognizable by the Sandiganbayan is not co-equal with other investigative

bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot

claim equal power. (DOJ vs. Liwag)

Powers of the Ombudsman to investigate and prosecute

The Ombudsman has the power to investigate and prosecute any act or omission of a

public officer or employee when such act or omission appears to be illegal, unjust, improper, or

inefficient. It has been the consistent ruling of the court not to interfere with the Ombudsmans

exercise of his investigatory and prosecutory powers as long as his rulings are supported by

substantial evidence. (Presidential Fact Finding vs. Desierto)

General rule: Court will not interfere with the Ombudsmansexercise of jurisdiction


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Well-settled is the rule that this Court will not ordinarily interfere with the

Ombudsman's exercise of his investigatory and prosecutory powers without good and

compelling reasons that indicate otherwise (Antonino vs. Ombudsman)

5.1.4. When injunction may be issued to restrain criminal prosecution

General rule:

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an

appropriate case is confined to the issue of whether the executive or judicial determination, as

the case may be, of probable cause was done without or in excess of jurisdiction or with grave

abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that

criminal prosecutions may not be restrained or stayed by injunction, preliminary or final.

Exceptions

There are, however, exceptions to this rule. Among the exceptions are enumerated in

Brocka vs. Enrile,74 as follows:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs.Albano, et al.,L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano,supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a prejudicial question which is sub-judice (De Leon vs. Mabanag, 70 Phil.202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil.62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-2579S,October 29, 1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R.No. 4760, March 25, 1960);

Instance of a case of persecution rather than prosecution:

The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone

of contention of petitioners that the instant case in a matter of persecution rather than

prosecution (Teodoro C. Borlongan, Jr. Et Al. Vs. Magdaleno M. Pea, Et Al. G.R. No. 143591,May 5, 2010)


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i. Where the charges are manifestly false and motivated by the lust for vengeance (Rectovs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and

j. When there is clearly noprima faciecase against the accused and a motion to quash onthat ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA

438).

Unlawful arrest may be enjoined by an injunction

Preliminary injunction has been issued by the Supreme Court to prevent the threatened

unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953, cited in REGALADO,

REMEDIAL LAW COMPENDIUM, p. 188, 1988 Ed.)

Supreme Court in exceptional cases may resolve existence of probable cause:

In these exceptional cases, this Court may ultimately resolve the existence or non-

existence of probable cause by examining the records of the preliminary investigation, as it did

in Salonga vs. Pao(187 SCRA 788), Allado and Webb; Paul G. Roberts et al., vs. The Court ofAppeals, et al., G.R. No. 113930, March 5, 1996)

5.2. Prosecution of offenses

Filing of the complaint or information interrupts the prescriptive period

With respect to offenses penalized by special laws, the filing of the complaint or

information in court is the one that interrupts the prescriptive period and not the filing of the

complaint in the proper office for purposes of conducting a preliminary investigation(Zaldivar v. Reyes, 211 SCRA 277).

5.2.2. Who may file them, crimes that cannot be prosecuted de officio

Who may prosecute cases for abduction, seduction and acts of lasciviousness

Sec. 5, paragraph 3, Rule 110 of the Revised Rules of Criminal Procedureprovides for the

rule that criminal cases for seduction, abduction and acts of lasciviousness shall be prosecuted

by the private offended party, her parents, grandparents or guardian or in the absence of any

relative the State may prosecute under the principle ofparens patriae. It states that:

The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted

except upon a complaint filed by the offended party or her parents, grandparents of guardian,

nor, in any case, if the offender has been expressly pardoned by any of them. If the offended

party dies or becomes incapacitated before she can file the complaint, and she has no known

parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.


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5.2.3. Criminal actions, when enjoined

5.2.4. Control of prosecution

It is well-settled that prosecution of crimes pertains to the executive department of thegovernment whose principal power and responsibility is to insure that laws are faithfully

executed. Corollary to this power is the right to prosecute violators. Thus, all criminal actions

commenced by complaint or information are prosecuted under the direction and control of

public prosecutors. In the prosecution of special laws, however, the exigencies of public service

sometimes require the designation of special prosecutors from different government agencies

to assist the public prosecutor; but this designation does not detract from the public prosecutor

having control and supervision over the case. (Bureau of Customs v. Peter Sherman, et al,G.R.No. 190487, April 13, 2011.)

5.2.5. Sufficiency of complaint or information

When is a complaint or information sufficient?

For complaint or informationto be sufficient, one of the requirements is that it must

allege the acts or omissions complained of as constituting the offense. The acts or omissions

complained of must be alleged in such form as is sufficient to enable a person of common

understanding to know what offense is intended to be charged, and enable the court to

pronounce proper judgment. No information for a crime will be sufficient if it does not

accurately and clearly allege the elements of the crime charged. What facts and circumstances

are necessary to be included therein must be determined by reference to the definitions and

essentials of the specified crimes. (People vs. Dimaano)

A complaint is substantially sufficient if it states the known address of the respondent, it

is accompanied by complainants affidavit and his witnesses and supporting documents, and the

affidavits are sworn to before any fiscal, state prosecutor or government official authorized to

administer oath, or in their absence or unavailability, a notary public who must certify that he

personally examined the affiants and that he is satisfied that they voluntarily executed and

understood their affidavits. (Sasot vs. People)

Error in the name of the accused

An error in the name of the accused is not reversible as long as his identity is sufficiently

established. This defect is curable at any stage of the proceedings as insertion of the real name

of the accused is merely a matter of form (People v. Padica, 221 SCRA 362)

Rule in case some of the witnesses are not included in the information

The non-inclusion of some of the names of the eyewitnesses in the information does not
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preclude the prosecutor from presenting them during trial. (People v. Dela Cruz)

Aggravating circumstance must be alleged in the information or complaint

It should be remembered that every aggravating circumstance being alleged must be

stated in the information. Failure to state an aggravating circumstance, even if duly proven attrial, will not be appreciated as such. It was, therefore, incumbent on the prosecution to state

the aggravating circumstance of "wearing masks and/or other forms of disguise" in the

information in order for all the evidence, introduced to that effect, to be admissible by the trial

court.(People of the Philippines vs. Danilo Feliciano Jr., et. al, G.R. No. 196735, May 5, 2014)

Documents attached to the information or complaint

An information filed in court shall be supported by affidavits and counter-affidavits of

the parties and their witnesses, other supporting documents and the resolution of the case. The

reason for this rule is because the law aims not only to acquit the innocent but to like insulate

the clearly innocent from false charges and from the strong arm of the law. (OKABE VS.GUTIERREZ)

Test of sufficiency of information

The test of sufficiency of Information is whether it enables a person of common

understanding to know the charge against him, and the court to render judgment properly. x x x

The purpose is to allow the accused to fully prepare for his defense, precluding surprises during

the trial. (People of the Philippines vs. Danilo Feliciano Jr., et. al, G.R. No. 196735, May 5, 2014)

Failure to object in the defect of information is deemed a waiver thereof

Appellants aver that the information filed before the trial court was substantially

defective considering that it accuses Abdul and Ampuan as one and the same person when in

fact they were identified as different persons. As such, Ampuan was not able to comprehend

the information read to him. However, appellants failed to raise the issue of the defective

Information before the trial court through a motion for bill of particulars or a motion to quash

the information. Their failure to object to the alleged defect before entering their pleas of not

guilty amounted to a waiver of the defect in the Information. Records even show that the

information was accordingly amended during trial to rectify this alleged defect but appellants

did not comment thereon. Moreover, objections as to matters of form or substance in theinformation cannot be made for the first time on appeal. (People of the Philippines v.Renandang Mamaruncas and Pendatum Ampuan, G.R. No. 179497, January 25, 2012)

5.2.6. Designation of offense

Designation of the offense


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An information is valid as long as it distinctly states the statutory designation of the

offense and the acts or omissions constitutive thereof. In other words, if the offense is stated in

such a way that a person of ordinary intelligence may immediately know what is meant, and the

court can decide the matter according to law, the inevitable conclusion is that the information is

valid. It is not necessary to follow the language of the statute in the information. The

information will be sufficient if it describes the crime defined by law. (Lasoy vs. Zenarosa)

Variance doctrine

In case of variance between the complaint filed by the offended party and the

information in crimes against chastity, the complaint controls (People v. Oso, 62 Phil 271)

Application in rape cases

However, since the charge in the Information for the December 2003 incident is rape

through carnal knowledge, Pareja cannot be found guilty of rape by sexual assault even though

it was proven during trial. This is due to the material differences and substantial distinctions

between the two modes of rape; thus, the first mode is not necessarily included in the second,

and vice-versa. Consequently, to convict Pareja of rape by sexual assault when what he was

charged with was rape through carnal knowledge, would be to violate his constitutional right to

be informed of the nature and cause of the accusation against him.

Nevertheless, Pareja may be convicted of the lesser crime of acts of lasciviousness under

the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of

Criminal Procedure, to wit:

SEC. 4. Judgment in case of variance between allegation and proof. When there is avariance between the offense charged in the complaint or information and that proved, and the

offense as charged is included in or necessarily includes the offense proved, the accused shall

be convicted of the offense proved which is included in the offense charged, or of the offense

charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. An offense charged

necessarily includes the offense proved when some of the essential elements or ingredients of

the former, as alleged in the complaint or information, constitute the latter. And an offense

charged is necessarily included in the offense proved, when the essential ingredients of the

former constitute or form part of those constituting the latter. (PEOPLE OF THE PHILIPPINES vs.BERNABE PAREJA y CRUZ,G.R. No. 202122, January 15, 2014)

When variance between allegation and fact proved is deemed binding

A variance in the mode of commission of the offense is binding upon the accused if he

fails to object to evidence showing that the crime was committed in a different manner than

what was alleged. While the information clearly states that the crime was committed by


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appellant's insertion of his penis inside AAA's vagina, the latter solemnly testified on the

witness stand that appellant merely put his penis in her mouth. Nevertheless, appellant failed

to register any objection that the Information alleged a different mode of the commission of

the crime of rape. Thus, appellant's conviction for rape by sexual assault must be sustained, the

variance notwithstanding. (PEOPLE vs. GULLERMO LOMAQUE, GR 189297, June 5, 2013)

Defect in the complaint court may still acquire jurisdiction

Even when a complaint is defective for being signed and filed by the chief of police and

not by the complainant, the court may still acquire jurisdiction over the case. The complaint

required in Art. 344 of the RPC is but a condition precedent to the exercise by the proper

authorities of the power to prosecute the guilty parties. The complaint simply starts the

prosecutory proceeding but does not confer jurisdiction in the court to try the case. Art. 344 is

not determinative of the jurisdiction of courts over private offenses because the same is

governed by the Judiciary Law and not the RPC. (People v. Yparraguire)

Minority is a special and qualifying circumstance in rape cases

In rape cases, the concurrence of the minority of the victim and her relationship with

the offender is a special qualifying circumstance which should be both alleged (People v. Cantos)and proved (People v. Manggasin) with certainty in order to warrant the imposition of the[maximum] penalty.

Facts alleged in the information is controlling

It is not the designation of the offense in the complaint or information that is controlling

(People v. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine thenature of the crime

(People v. 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 v. Court of Appeals, 265 SCRA 701).

An accused could not be convicted under one act when he is charged with a violation of

another if the change from one statue to the other involves:

a. a change in the theory of the trial;

b. requires of the defendant a different defense; or

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

5.2.7. Cause of the accusation

PURPOSE:


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1. To enable the court to pronounce a 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. ( U.S. v. Karelsen).

5.2.8. Duplicity of the offense; exception

General rule:

An information or complaint must charge only one offense, unless the law prescribes a

single punishment for various offenses

Exceptions to the rule on duplicity

1. continuing crimes

2. complex crimes

3. special complex crimes

4. crimes susceptible of being committed in various modes

5. crimes of which another offense is an ingredient

Requisites of continuous crimes:

1. Plurality of acts performed separately during a period of time;

2. Unity of penal provision infringed upon or violated;

3. Unity of criminal intent which means that two or more violations of the same penal

provision are united on one and the same intent leading to the perpetration of the samecriminal purpose or claim (People v. Ledesma).

Rule on duplicity of offense: Effects:

A defectively crafted information, such as that alleging multiple offenses in a single

complaint or information transgresses Rule 110, 13. A. However, failure to make a timely

objection to such a defect is deemed to be a waiver of the said objection. (People v. Santiago)

Effects of failure to object on the duplicity of offenses

Under Sec. 3, Rule 120, failure on the part of the accused to object on the duplicity of

offense as charged in the information, he may be convicted as many crimes as charged in the

information or complaint.

5.2.9. Amendment or substitution of complaint or information

Preliminary investigation not required in case of amendment


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There are also no substantial amendments in the information warranting a new

preliminary investigation. A new preliminary investigation is also required if aside from the

original accused, other persons are charged under a new criminal complaint for the same

offense or necessarily included therein; or if under a new criminal complaint, the original charge

has been upgraded; or if under a new criminal complaint, the criminal liability of the accused isupgraded from that as an accessory to that as a principal. The accused must be accorded the

right to submit counter-affidavits and evidence. (Saludaga vs. Sandiganbayan)

Venue in libel cases

Where the complainant is a private individual, the venue of libel cases is limited to only

either of the 2 places, namely: (1) where the complainant actually resides at the time of the

commission of the offense; or (2) where the alleged defamatory article was printed and first

published. (Bonifacio vs. RTC of Manila)

When amendments to information may be allowed?

a. it does not deprive the accused of the right to invoke prescription

b. it does not deprive the accused of the right to invoke prescription

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

d. it does not involve a change in the basic theory of the prosecution so as to require the

accused to undergo any material charge or modification in his defense

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

f. it does not cause surprise or deprive the accused of an opportunity to meet the new

averment.

5.2.10. Venue of criminal actions

Purpose of venue:

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.

GENERAL RULE:

Penal laws are territorial; hence Philippine courts have no jurisdiction over crimes

committed outside the Philippines.

5.2.11. Intervention of offended party

GENERAL RULE:


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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.

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;

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

3. Where the offended party has already instituted an action.

5.3. Prosecution of civil action

The prime purpose of the criminal action is to punish the offender to deter him and

others from committing the same or similar offense, to isolate him from society, reform or

rehabilitate him or, in general, to maintain social order. The purpose, meanwhile, of the civil

action is for the restitution, reparation or indemnification of the private offended party for the

damage or injury he sustained by reason of the delictual or felonious act of the accused.

(Buntiong vs. Balboa)

When private prosecutor can intervene in the trial

Under the Rules, where the civil action for recovery of civil liability is instituted in the

criminal action pursuant to Rule 111, the offended party may intervene by counsel in the

prosecution of the offense. Rule 111(a) of the Rules of Criminal Procedure provides that,

[w]hen a criminal action is instituted, the civil action arising from the offense charged shall be

deemed instituted with the criminal action unless the offended party waives the civil action,reserves the right to institute it separately, or institutes the civil action prior to the criminal

action.

Private respondent did not waive the civil action, nor did she reserve the right to

institute it separately, nor institute the civil action for damages arising from the offense

charged. Thus, we find that the private prosecutors can intervene in the trial of the criminal

action.(Lee Pue Liong vs. Chua Pue Chin Lee, 703 SCRA 240)

5.3.1. Rule on implied institution of civil action with criminal action

Sec. 1, Rule 111 of the Revised Rules on Criminal Procedureprovides for the rule that

in case a criminal action is instituted, the civil liability resulting therefrom shall be deemed

impliedly instituted in the said criminal action unless there is waiver or a reservation to institute

a separate civil action before the institution of the said criminal case. It states that:

Section 1. Institution of criminal and civil actions. (a) When a criminal action is


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instituted, the civil action for the recovery of civil liability arising from the offense charged

shall be deemed instituted with the criminal action unless the offended party waives the civil

action, reserves the right to institute it separately or institutes the civil action prior to the

criminal action.

5.3.2. When civil action may proceed independently

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 is not criminal but only civil in nature.

3. The civil liability is not derived from or based on the criminal act of which the accused is

acquitted. (Sapiera v. Court of Appeals, 314 SCRA 370)

An Independent Civil Action Cannot Give Rise to Prejudicial Question

It is well settled that a civil action based on defamation, fraud and physical injuries maybe independently instituted pursuant to Article 33 of the Civil Code, and does not operate as a

prejudicial question that will justify the suspension of a criminal case. This was precisely the

Court's thrust in G.R. No. 148193, thus: Moreover, neither is there a prejudicial question of the

civil and the criminal action can, according to law, proceed independently of each other. Under

Rule 111, Section 3 of the Revised Rules on Criminal Procedure, iun the cases provided in

Articles 32, 33, 34 and 2176 of the Civil Code, the independent civil action may be brought by

the offended party. It shall proceed independently of the criminal action and shall require only

a preponderance of evidence. In no case, however, may the offended party recover damages

twice for the same act or omission charged in the criminal action. xxx In the instant case, Civil

Case No. 99-95381, for Damages and Attachment on account of alleged fraud committed byrespondent and his mother in selling the disputed lot to PBI is an independent civil action under

Article 33 of the Civil Code. As such, it will not operate as a prejudicial question that will justify

the suspension of the criminal case at bar. (Rafael Jose Consing, Jr. vs. People of the Philippines,G.R. No. 161075, July 15, 2013)

5.3.3. When separate civil action is suspended

Sec. 2 of Rule 111 of the Revised Rules on Criminal Procedureprovides for the rule onthe suspension of civil action after the commencement of the criminal action. It states that:

Section 2. When separate civil action is suspended. After the criminal action hasbeen commenced, the separate civil action arising therefrom cannot be instituted until final

judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the

latter shall be suspended in whatever stage it may be found before judgment on the merits.

The suspension shall last until final judgment is rendered in the criminal action. Nevertheless,


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before judgment on the merits 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.

In case of consolidation, the evidence already adduced in the civil action shall be deemed

automatically reproduced in the criminal action without prejudice to the right of the

prosecution to cross-examine the witnesses presented by the offended party in the criminal

case and of the parties to present additional evidence. The consolidated criminal and civilactions shall be tried and decided jointly.

When suspension of the civil action allowed?

In Gandiongco vs. Penaranda [155 SCRA 725], it was held that suspension is allowable

only if the civil action arises from the criminal act subject of the criminal case. The civil action

must be intended to enforce civil liability arising from the offense charged.

5.3.4. Effect of death of the accused or convict on civil action

Finally, we observe that the Court of Appeals did not rule on the effect of the death of

Eddie Malogsi during the pendency of this case. Considering that no final judgment had been

rendered against him at the time of his death, whether or not he was guilty of the crime

charged had become irrelevant because even assuming that he did incur criminal liability and

civil liability ex delicto, these were totally extinguished by his death, following Article 89(1) of

the Revised Penal Code and, by analogy, our ruling in People v. Bayotas. Therefore, the present

criminal case should be dismissed with respect only to the deceased Eddie Malogsi. (PEOPLE OFTHE PHILIPPINES vs. MARCELINO DADAO, et al., G.R. No. 201860, January 22, 2014)

5.3.5. Prejudicial question

Prejudicial Questionmeaning; rationale

A prejudicial question is understood in law to be that which arises in a case the resolution

of which is a logical antecedent of the issue involved in the criminal case, and the cognizance of

which pertains to another tribunal. It is determinative of the criminal case, but the jurisdiction

to try and resolve it is lodged in another court or tribunal. It is based on a fact distinct and

separate from the crime but is so intimately connected with the crime that it determines the

guilt or innocence of the accused. The rationale behind the principle of prejudicial question is to

avoid conflicting decisions. (San Miguel Properties, Inc. vs. SEC. Hernando B. Perez, et al., GR No.

166836, September 4, 2013)

Elements of Prejudicial Question

The essential elements of a prejudicial question are provided in Section 7, Rule 111 of the

Rules of Court, to wit: (a) the previously instituted civil action involves an issue similar or

intimately related to the issue raised in the subsequent criminal action, and (b) the resolution


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of such issue determines whether or not the criminal action may proceed. (San MiguelProperties, Inc. vs. SEC. Hernando B. Perez, et al., GR No. 166836, September 4, 2013)

Action for specific performance is a prejudicial question

in criminal case for violation of Sec. 25, PD No. 957

BF Homes posture that the administrative case for specific performance in the HLURB

posed a prejudicial question that must first be determined before the criminal case for violation

of Section 25 of the PD No. 957 could be resolved is correct.

Raising prejudicial question is hypothetical admission of sufficiency of the information

A party who raises a prejudicial question is deemed to have hypothetically admitted that

all the essential elements of the crime have been adequately alleged in the information,

considering that the Prosecution has not yet presented a single piece of evidence on the

indictment or may not have rested its case. A challenge to the allegations in the information on

the ground of prejudicial question is in effect a question on the merits of the criminal charge

through a non-criminal suit. (San Miguel Properties, Inc. vs. SEC. Hernando B. Perez, et al., GRNo. 166836, September 4, 2013)

Action for Rescission of Contract not a prejudicial question to violation of BP 22

To properly appreciate if there is a prejudicial question to warrant the suspension of the

criminal actions, reference is made to the elements of the crimes charged. The violation of

Batas Pambansa Blg. 22 requires the concurrence of the following elements, namely: (1) the

making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge

of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in orcredit with the drawee bank for the payment of the check in full upon its presentment; and (3)

the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or

dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to

stop payment. The issue in the criminal actions upon the violations of Batas Pambansa Blg. 22

is, therefore, whether or not Reyes issued the dishonoured checks knowing them to be without

funds upon presentment. On the other hand, the issue in the civil action for rescission is

whether or not the breach in the fulfillment of Advanced Foundations obligation warranted the

rescission of the conditional sale. If, after trial on the merits in the civil action, Advanced

Foundation would be found to have committed material breach as to warrant the rescission of

the contract, such result would not necessarily mean that Reyes would be absolved of thecriminal responsibility for issuing the dishonored checks because, as the aforementioned

elements show, he already committed the violations upon the dishonor of the checks that he

had issued at a time when the conditional sale was still fully binding upon the parties. His

obligation to fund the checks or to make arrangements for them with the drawee bank should

not be tied up to the future event of extinguishment of the obligation under the contract of sale

through rescission. Indeed, under Batas Pambansa Blg. 22, the mere issuance of a worthless

check was already the offense in itself. Under such circumstances, the criminal proceedings for


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the violation of Batas Pambansa Blg. 22 could proceed despite the pendency of the civil action

for rescission of the conditional sale. (Teodoro A. Reyes vs. Ettore Rossi, GR No. 159823,February 18, 2013)

5.3.6. Rule on filing fees in civil action deemed instituted with the criminal action

Payment of filing fees in case civil aspect is deemed impliedly instituted in the criminal action

The amendments were deliberated on and adopted by this Court after the

Manchester doctrine has been enunciated. Yet, observe that the last two (2) paragraphsprescribe a rule different from that in Manchester, and in the 1985 Rules on CriminalProcedure. Under the 1985 Rule, the filing fees for the civil action impliedly instituted with the

criminal had to be paid first to the Clerk of Court where the criminal action was commenced,

without regard to whether the claim for such damages was set out in the information or not.

Under the 1988 Rules however, it is only when the amount of damages, other than the actual,

is alleged in the complaint or information that the corresponding filing fees shall be paid by theoffended party upon the filing thereof in court for trial. In any other case i.e., when theamount of damages other than actual is NOT alleged in the information the filing fees for the

civil action to enforce civil liability against the accused by way of moral, nominal, temperate,

or exemplary damages x x x shall merely constitute a first lien on the judgment except in an

award for actual damages. This Courts plain intent to make the Manchester doctrine,requiring payment of filing fees at the time of the commencement of an action applicable to

impliedly instituted civil actions under Section 1, Rule 111 only when the amount of damages

other than actual is alleged in the complaint or information has thus been made manifest by

the language of the amendatory provisions.

In any event, the Court now makes that intent plainer, and in the interest of clarity

and certainty, categorically declares for the guidance of all concerned that when the civil action

is deemed impliedly instituted with the criminal in accordance with Section 1, Rule 111 of the

Rules of Court because the offended party has not waived the civil action, or reserved the

right to institute it separately, or instituted the civil action prior to the criminal action the

rule is as follows: (1) when the amount of the damages, other than actual, is alleged in the

complaint or information filed in court, then the corresponding filing fees shall be paid by the

offended party upon filing thereof in court for trial; and (2) in any other case, however i.e.,

when the amount of damages is not so alleged in the complaint or information filed in court the

corresponding filing fees need not be paid and shall simply constitute a first lien on the

judgment, except in an award for actual damages. (Honesto General vs. Hon. Graduacion ReyesClaravall, et al., 195 SCRA 623)

5.3.7 Extinguishment/Maintenance of civil liability despite acquittal

The civil action based on delict may be deemed extinguished if there is a finding on the

final judgment in the criminal action that the act or omission from which the civil liability may


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arise did not exist or where the accused did not commit the acts or omission imputed to him.

(Lee Pue Liong vs. Chua Pue Chin Lee, 703 SCRA 240)

Civil liability in case of estafa

An accused, though acquitted of estafa, may still be held civilly liable where thepreponderance of the established facts so warrants.(People of the Philippines vs. Gilbert ReyesWagas, GR NO. 157943, September 4, 2013)

5.4. Preliminary investigation

Nature of Preliminary Investigation

A preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of

the case on the merits and has no purpose except to determine whether a crime has been

committed, and whether there is probable cause to believe that the accused is guilty of that

crime. A preliminary investigation is not the occasion for a full and exhaustive display of the

parties evidence, which needs to be presented only to engender a well-grounded belief that an

offense has been committed, and that the accused is probably guilty thereof (Community Rural

Bank vs. Judge Telavera)

Resolution on the motion for reinvestigation

We rule that the trial court in a criminal case which takes cognizance of an accuseds

motion for review of the resolution of the investigating prosecutor or for reinvestigation and

defers the arraignment until resolution of the said motion must act on the resolution reversing

the investigating prosecutors finding or on a motion to dismiss based thereon only upon proofthat such resolution is already final in that no appeal was taken therefrom to the Department of

Justice. (Serag vs. CA)

Preliminary investigation not part of the trial

It is not part of the trial of the criminal action in court. Nor is its record part of the

recordof the case in the RTC. 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. v. Marfori, 35 Phil

666).

Reply is not mandatory in preliminary investigation; hence, no deprivation of due process if

denied

There is no provision in Rule 112 of the Rules of Court that gives the Complainant or

requires the prosecutor to observe the right to file a Reply to the accuseds counter-affidavit.

To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3

(d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint


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even without a counter-affidavit, viz: (d) If the respondent cannot be subpoenaed, of ifsubpoenaed, does not submit counter-affidavits within the ten (10) day period, the

investigating officer shall resolve the complaint based on the evidence presented by the

complainant. On the other hand, petitioner was entitled to receive a copy of the Counter-

affidavit filed by Aguillon. (P/Insp. Ariel S. Artillero v. Orlando C. Casimiro, etc., et al, G.R. No.

190569, April 25, 2012)

5.4.1. Nature of right of the Ombudsman to conduct preliminary investigation

The Ombudsman is clothed with authority to conduct preliminary investigation and to

prosecute all criminal cases involving public officers and employees, not only those within the

jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well.

15 of RA 6770 (Ombudsman Act of 1989) does not make any distinction. Any illegal act or

omission of any public official is broad enough to embrace any crime committed by a public

officer or employee. Such grant of primary jurisdiction over cases cognizable by the

Sandiganbayan does not necessarily imply the exclusion from its jurisdiction of cases involving

public officers and employees cognizable by the other courts (Uy v. Sandiganbayan, G.R. Nos.105965-70(2001)

5.4.2. Purposes of preliminary investigation

Probable causemeaning and determination

Probable cause, for the purpose of filing a criminal information, exists when the facts are

sufficient to engender a well-founded belief that a crime has been committed and that the

respondent is probably guilty thereof. It does not mean actual and positive cause nor does it

import absolute certainty. Rather, it is based merely on opinion and reasonable belief.

Accordingly, probable cause does not require an inquiry whether there is sufficient evidence toprocure a conviction; it is enough that it is believed that the act or omission complained of

constitutes the offense charged. (Iris Kristine Balois Alberto vs. CA, GR No. 182130, June 19,2013)

Probable cause for purposes of filing a criminal information is defined as such facts as are

sufficient to engender a well-founded belief that a crime has been committed and the

respondent is probably guilty thereof, and should be held for trial. The prosecution evidence

fails to establish probable cause against petitioner HPG officers. (P/C Insp. Lawrence B. Cajipe,

P/C Insp. Joell. Mendoza, P/C Insp. Gerardo B. Balatucan, PO3 Jolito P. Mamanao, Jr., P03

Fernando Reys. Gapuz, Po2 Eduardo G. Blanco, Po2 Edwin Santos And Po1 Josil Rey I. Lucena,G.R. No. 203605, April 23, 2014)

Evidence required in finding of probable cause

A finding of probable cause needs only to rest on evidence showing that more likely than not a

crime has been committed and there is enough reason to believe that it was committed by the

accused. It need not be based on clear and convincing evidence of guilt, neither on evidence


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establishing absolute certainty of guilt. A finding of probable cause merely binds over the

suspect to stand trial. It is not a pronouncement of guilt. The term does not mean actual and

positive cause nor does it import absolute certainty. It is merely based on opinion and

reasonable belief. Probable cause does not require an inquiry into whether there is sufficient

evidence to procure a conviction. (Cruz v. Hon. Gonzales, et al,G.R. No. 173844, April 11, 2012)

The determination of probable cause does not call for the application of rules and standards of

proof that a judgment of conviction requires after trial on the merits.28 As implied by the

words themselves, "probable cause" is concerned with probability, not absolute or even moral

certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The

standards of judgment are those of a reasonably prudent man, not the exacting calibrations of

a judge after a full-blown trial. (Century Chinese Medicine Co., et al. vs. People of the Philippinesand Ling Na Lau, GR No. 188526, November 22, 2013)

5.4.3. Who may conduct determination of existence of probable cause

The determination of probable cause for the filing of an information in court is an executive

function which pertains at the first instance to the public prosecutor and then to the Secretary

of Justice. As a rule, in the absence of any grave abuse of discretion, courts are not empowered

to substitute their own judgment for that of the executive branch; the public prosecutor alone

determines the sufficiency of evidence that will establish probable cause in filing a criminal

information and courts will not interfere with his findings unless grave abuse of discretion can

be shown. In this case, the Supreme Court found no error in the public prosecutors

determination that no probable cause existed to justify the filing of a criminal complaint.(Manila Electric Company, represented by Manolo C. Fernando v. Vicente Atilano, et al.,G.R. No.166758, June 27, 2012)

Authority of the Ombudsman to conduct preliminary investigation

The Ombudsmans primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary

investigation of crimes involving public officers, without regard to its commission in relation to

office, had long been settled in Sen. Honasan II vs. The Panel of Investigating Prosecutors of

DOJ, and affirmed in subsequent cases: The Constitution, Section 15 of the Ombudsman Act of

1989 and Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman

exclusive jurisdiction to investigate offenses committed by public officers and employees. The

authority of the Ombudsman to investigate offenses involving public officers or employees is

concurrent with other government investigating agencies such as provincial, city and state

prosecutors, however, the Ombudsman, in the exercise of its primary jurisdiction over cases

cognizable by the Sandiganbayan may take over, at any stage, from any investigating agency of

the government, the investigation of such cases. (Alfredo Romulo A. Busuego vs. Office of theOmbudsman, GR No. 196842, October 9, 2013)
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5.4.4. Resolution of investigation prosecutor

Sec. 4, Rule 112 of the Revised Rules on Criminal Procedure , provides for the duties ofthe investigating officer in resolving the case under preliminary investigation in which he may

either dismiss the case or file it in court together with the proper information. It states:

Section 4. Resolution of investigating prosecutor and its review. If the investigating

prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and

information. He shall certify under oath in the information that he, or as shown by the record, an

authorized officer, has personally examined the complainant and his witnesses; that there is

reasonable ground to believe that a crime has been committed and that the accused is probably

guilty thereof; that the accused was informed of the complaint and of the evidence submitted

against him; and that he was given an opportunity to submit controverting evidence. Otherwise,

he shall recommend the dismissal of the complaint.

5.4.5. Review

Principle of non-interference in the review of the DOJ Secretary

In this case, the Supreme Court affirmed the decision of the Court of Appeals in line with

the principle of non-interference with the prerogative of the Secretary of Justice to review the

resolutions of the public prosecutor in the determination of the existence of probable cause.

The Secretary of Justice found sufficient evidence to indict petitioner. It was adequately

established by DBP and found by the Secretary of Justice that the funds would not have been

released pursuant to the subsidiary loan agreement if HSLBI had no sub-borrowers/Investment

Enterprises to speak of. As it turned out, not only were the collaterals submitted inexistent, allthe purported sub-borrowers/Investment Enterprises were also fictitious and inexistent. In

fact, the signatures of the sub-borrowers and the supporting documents submitted to DBP by

petitioner and her co-respondents were all forged. The findings of probable cause against

petitioner was based on the document showing that petitioners opinion was instrumental in

the deceit committed against DBP. (Cruz v. Hon. Gonzales, et al, G.R. No. 173844, April 11,2012)

Non-interference of the court in finding probable cause by prosecutor; Exceptions; Remedy of

certiorari under Rule 65

Courts of law are precluded from disturbing the findings of public prosecutors and the

DOJ on the existence or non-existence of probable cause for the purpose of filing criminal

information, unless such findings are tainted with grave abuse of discretion, amounting to lack

or excess of jurisdiction. The rationale behind the general rule rests on the principle of

separation of powers, dictating that the determination of probable cause for the purpose of

indicting a suspect is properly an executive function; while the exception hinges on the limiting

principle of checks and balances, whereby the judiciary, through a special civil action of


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certiorari,has been tasked by the present Constitution to determine whether or not there has

been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any

branch or instrumentality of the Government. (Iris Kristine Balois Alberto vs. CA, GR No.182130, June 19, 2013)

The rule is that this Court will not interfere in the findings of the DOJ Secretary on theinsufficiency of the evidence presented to establish probable cause unless it is shown that the

questioned acts were done in a capricious and whimsical exercise of judgment evidencing a

clear case of grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse

of discretion, thus means such capricious and whimsical exercise of judgment as is equivalent

to lack of jurisdiction. The party seeking the writ of certiorari must establish that the DOJ

Secretary exercised his executive power in an arbitrary and despotic manner, by reason of

passion or personal hostility, and the abuse of discretion must be so patent and gross as would

amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in

contemplation of law. (Rosalinda Punzalan vs. Michael Plata, GR No. 160316, September 2,2013)

We have consistently held in jurisprudence that the resolution of such a factual question

is best left to the sound judgment of the trial court, and that, absent any misapprehension of

facts or grave abuse of discretion, the findings of the trial court shall not be dismissed. (Peopleof the Philippines vs. Marcelino Dadao, et al., GR No. 201860, January 22, 2014)

Trial Court not bound to adopt resolution of DOJ Secretary

The trial court is not bound to adopt the resolution of the DOJ Secretary since it is

mandated to independently evaluate or assess the merits of the case. In other words, the

dismissal of the case was based upon considerations other than the judges own pe rsonalindividual conviction that there was no case against the accused. (SAMUEL LEE AND MAYBELLELIM VS. KBC BANK)

Remedy to assail determination of DOJ Secretary pertaining to existence or non-existence of

probable cause

Contrary to respondents claim,Rule 65 provides the proper remedy to assail the DOJs

determination of the presence or absence of probable cause instead of a petition for review

under Rule 43. By weighing the evidence submitted by the parties in a preliminary investigation

and by making an independent assessment thereof, an investigating prosecutor is, to that

extent, performing functions of a quasi-judicial nature in the conduct of a preliminary

investigation. However, since he does not make a determination of the rights of any party in

the proceeding, or pronounce the respondents guilt or innocence (thus limiting his action to

the determination of probable cause to file an information in court), an investigating

prosecutors function still lacks the element of adjudication essential to an appeal under Rule

43. Additionally, there is a compelling reason to conclude that the DOJs exclusion from the

enumeration of quasi-judicial agencies in Rule 43 of the Rules of Court is deliberate. However,


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the petitioner must allege and show that the DOJ acted with grave abuse of discretion in

granting or denying the petition for review. (PCGG Chairman Magdangal B. Elma andPresidential Commission on Good Government v. Reiner Jacobi, Crispin T. Reyes, et al.,G.R. No.155996, June 27, 2012)

5.4.6. When warrant of arrest may issue

Section 5, Rule 112of the Rules of Court gives the trial court three options upon the

filing of the criminal information:

(1) dismiss the case if the evidence on record clearly failed to establish probable cause;

(2) issue a warrant of arrest if it finds probable cause; and

(3) order the prosecutor to present additional evidence within five days from notice in

case of doubt as to the existence of probable cause. (People vs. Hon. Dela Torre-Yadao, G.R.

5.4.7. Cases not requiring a preliminary investigation

Sec. 9, Rule 112 of the Revised Rules on Criminal Procedure provides for a situationwhere preliminary investigation is not required. It states that:

Section 9. Cases not requiring a preliminary investigation nor covered by the Rule onSummary Procedure.

(a) If filed with the prosecutor. If the complaint is filed directly with the prosecutor

involving an offense punishable by imprisonment of less than four (4) years, two (2) months andone (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The

prosecutor shall act on the complaint based on the affidavits and other supporting documents

submitted by the complainant within ten (10) days from its filing.

(b) If filed with the Municipal Trial Court.If the complaint or information is filed withthe Municipal Trial Court, Municipal Circuit Trial Court for an offense covered by this section,

the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the

filing of the complaint or information, the judge finds no probable cause after personally

evaluating the evidence, or after personally examining in writing and under oath the

complainant and his witnesses in the form of searching questions and answers, he shall dismissthe same. He may, however, require the submission of additional evidence, within ten (10) days

from notice, to determine further the existence of probable cause. If the judge still finds no

probable cause despite the additional evidence, he shall, within ten (10) days from its

submission or expiration of said period, dismiss the case. When he 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. However, if the judge is satisfied that there is no necessity for placing the

accused under custody, he may issue summons instead of a warrant of arrest.
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5.4.8. Remedies of accused if there was no preliminary investigation

Right to Bail Pending Preliminary Investigation

A person lawfully arrested may post bail before the filing of the information or even

after the filing without waiving his right to PI, provided that he asks for a PI by the proper officerwithin the period fixed in the said rule. (People v. Court of Appeals, May 29, 1995).

Remedies of the accused in case of denial of his right to preliminary investigation: Waiver

a) The accused who is denied the mandatory preliminary investigation may refuse to

enter a plea upon arraignment and to object to the continuation of further proceedings based

on lack of preliminary investigation. If he pleads without objection, he cannot raise the issue on

appeal.(People vs. Mabuyo, 63 SCRA 532; People vs. Lazo; 198 SCRA 274)

b) Although it is entirely possible that the investigating fiscal may erroneously exercise

the discretion and annulment by the extraordinary remedy of certiorari, absent any showing ofgrave abuse of discretion amounting to excess of jurisdiction . (Hegerty vs. Court of Appeals, 409SCRA 285 [2003])

Habeas Corpus not proper remedy in case of denial of preliminary investigation: Remedies

available

a) A petition for habeas corpusis not a proper remedy if the accused was not accordedpreliminary investigation which he did not waive. The remedy is a motion to quash the warrant

of arrest and/or information or to ask for an investigation/re-investigation of the case. (Ilagan

vs. Enrile 139 SCRA; Paredes vs. Sandiganbayan, 193 SCRA 464)

5.4.9. Inquest

A preliminary investigation is a proceeding distinct from an inquest. A preliminary

investigation is an inquiry or proceeding to determine whether there is sufficient ground to

engender a well-founded belief that a crime has been committed and the respondent is

probably guilty thereof, and should be held for trial. An inquest is a summary inquiry

conducted by a prosecutor for the purpose of determining whether the warrantless arrest of a

person was based on probable cause. (Imelda S. Enriquez vs. Olegario R. Sarmiento, Jr., A.M.

No. RTJ-06-2011, August 7, 2006)

5.5. Arrest

Arrest is defined under Sec. 1, Rule 113 of the Rules of Criminal Procedureas:

Arrest is the taking of a person into custody in order that he may be bound to answer

for the commission of an offense.


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5.5.1. Arrest, how made

Section 2, Rule 113 of the Revised Rules on Criminal Procedureprovides for the manner,

time and conduct of arresting a person who committed a crime. It states that:

Section 2.Arrest; how made.An arrest is made by an actual restraint of a person to

be arrested, or by his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested

shall not be subject to a greater restraint than is necessary for his detention.

Arrest in Summary Procedurewhen available

Whenever a criminal case falls under the Summary Procedure, the general rule is that

the court shall not order the arrest of the accused unless he fails to appear whenever required .

In this case, Judge Tormis claimed that the issuance of the warrant of arrest against the accused

in the Librando case was justified because of the accuseds failure to appear during her

arraignment despite notice. However, as clearly found by the OCA, Judge Tormis order

requiring the accused to appear and submit her counter-affidavit and those of her witnesses

within ten days from receipt of the order was not yet served upon the accused when she issued

the warrant. In doing so, Judge Tormis issued the warrant of arrest in violation of the Rule on

Summary Procedure that the accused should first be notified of the charges against him and

given the opportunity to file his counter-affidavits and other countervailing evidence. (Office ofthe Court Administrator vs. Hon, Rosabella M. Tormis, AM No. MTJ-12-1817, March 12, 2013)

5.5.2. Arrest without warrant, when lawful

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of

Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an

overt act indicating that he has just committed, is actually committing, or is attempting to

commit a crime; and (2) such overt act is done in the presence or within the view of the

arresting officer. (People vs. Laguio)

Warrantless arrest under the Rules on Environmental case

a. When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;

b. When an offense has just been committed and he has probable cause to believe

based on personal knowledge of facts or circumstances that the person to be arrested has

committed it; and


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Warrantless search

The following searches and seizures are deemed permissible by jurisprudence: (1) search

of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches

(5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last

includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest,for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest,

the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante

delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners. (Valdez vs.

People)

5.5.3. Method of arrest

By officer without warrant

A person may be arrested lawfully even without a warrant of arrest, under any of the

circumstances provided under Section 5, Rule 113 of the Revised Rules on Criminal Procedure:

Section 5. Arrest without warrant; when lawful. A peace officer or a private personmay, without a warrant, arrest a person:

a. When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;

b. When an offense has just been committed and he has probable cause to believe

based on personal knowledge of facts or circumstances that the person to be arrested has

committed it; and

c. When the person to be arrested is a prisoner who has escaped from a penal

establishment or place where he is serving final judgment or is temporarily confined while his

case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a

warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded

against in accordance with section 7 of Rule 112.

Circumstances in a valid warrantless arrest:

An arrest made during the commission of a crime does not require a warrant. Such

warrantless arrest is considered reasonable and valid under Rule 113, section 5(a) of the

Revised Rules on Criminal Procedure. In the instant case, contrary to accused-appellants

contention, there was indeed a valid warrantless arrest in flagrante delicto. Consider thecircumstances immediately prior to and surrounding the arrest of accused-appellants: (1) the

police officers received information from an operative about an ongoing shipment of


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contraband; (2) the police officers, with the operative, proceeded to Villa Vicenta Resort

in BarangayBignay II, Sariaya, Quezon; (3) they observed the goings-on at the resort from adistance of around 50 meters; and (4) they spotted the six accused-appellants loading

transparent bags containing a white substance into a white L-300 van. Evidently, the arresting

police officers had probable cause to suspect that accused-appellants were loading and

transporting contraband, more so when Hwan, upon being accosted, readily mentioned thatthey were loading shabuand pointed to Tan as their leader. Thus, the arrest of accused-appellantswho were caught in flagrante delictoof possessing, and in the act of loading into a

white L-300 van, shabu, a prohibited drug under RA 6425, as amended is valid. (People of thePhilippines vs. Ng Yik bun, et al,G.R. No. 180452. January 10, 2010.)

Warrantless arrest by private person: Citizen arrest

Moreover, Section 5, par. (a), Rule 113 of the Revised Rules on Criminal Procedure

authorizes a warrantless arrest, otherwise called a citizens arrest when, in his presence, the

person to be arrested has committed, is actually committing or is attempting to commit an

offense. Thus, although officially assigned in Baguio City, Lt. Anchetas act of arresting accused-

appellant (after the latter offered to sell him marijuana in San Fernando, La Union) is justified,

not only because it is his duty as a law enforcer but also by Section 5 of Rule 113, which

authorizes instances of warrantless arrest or citizens arrests. (People of the Philippines vs. JoseRayray Areola, 241 SCRA 1)

A private person may effect an arrest under any of the circumstances provided under

Section 9,

Rule 113 of the Revised Rules on Criminal Procedure. It states that:

Section. 9. Method of arrest by private person. When making an arrest, a privateperson shall inform the person to be arrested of the intention to arrest him and the cause of the

arrest, unless the latter is either engaged in the commission of an offense, is pursued

immediately after its commission, or has escaped, flees, or forcibly resists before the person

making the arrest has opportunity to so inform him, or when the giving of such information will

imperil the arrest. (Emphasis supplied)

5.5.4. Requisites of a valid warrant of arrest

Determination of probable cause for issuance of warrant of arrest

Section 4. Requisites for issuing search warrant.A search warrant shall not issue

except upon probable cause in connection with one specific offense to be determined

personally by the judge after examination under oath or affirmationof the complainant and

the witnesses he may produce, and particularly describing the place to be searched and the

things to be seizedwhich may be anywhere in the Philippines. (Emphasis supplied)
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What is probable cause?

Probable cause is defined as such facts and circumstances which would lead a

reasonably discreet and prudent man to believe that an offense has been committed and that

the objects sought in connection with the offense are in the place sought to be searched.

Reasonable minds may differ on the question of whether a particular affidavit/deposition ortestimony of the affiant/deponent establishes probable cause. However, great deference is to

be accorded to the Judges determination. (Spinelli vs. US, 393 US 410, 89 S.Ct. 584 [1969]; US

vs. Leon, supra, note 61)The affidavit/deposition supporting an application for a search warrantis presumed to be valid. (Eliza T. Abuan vs. People, G.R. No. 168773, October 27, 2006)

Distinguish probable cause of fiscal from that of a judge

Determination of probable cause may be either executiveorjudicial.

The first is made by the public prosecutor, during a preliminary investigation, where he isgiven broad discretion to determine whether probable cause exists for the purpose of filing a

criminal information in court. The second is one made by the judge to ascertain whether a

warrant of arrest should be issued against the accused. (De Los Santos-Dio vs. CA, GR No.

178947, June 26, 2013)

5.5.7 Waiver of Objection on Irregularity of Arrest

Jurisprudence tells us that an accused is estopped from assailing any irregularity of his

arrest if he fails to raise this issue or to move for the quashal of the information against him on

this ground before arraignment, thus, any objection involving a warrant of arrest or the

procedure by which the court acquired jurisdiction of the person of the accused must be made

before he enters his plea; otherwise, the objection is deemed waived. Nevertheless, even if

appellants warrantless arrest were proven to be indeed invalid, such a scenario would still not

provide salvation to appellants cause because jurisprudence also instructs us that the illegal

arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a

sufficient complaint after a trial free from error. (People of the Philippines vs. Roberto Velasco,

G.R. No. 190318, November 27, 2013)

Objection should be made before plea:

We cannot uphold the contention of petitioner that his warrantless arrest was illegal.The CA correctly ruled that his failure to question the legality of his arrest before entering his

plea during arraignment operated as a waiver of that defense. It has been ruled time and again

that an accused is estopped from assailing any irregularity with regard to his arrest if he fails to

raise this issue or to move for the quashal of the information against him on this ground before

his arraignment. In his arraignment before the trial court, petitioner never raised any issue and

instead freely and voluntarily pleaded Not Guilty to the offense charged. Thus, he was

estopped from raising the issue of the legality of his arrest before the trial court, more so on


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appeal before the CA or this Court. (RODRIGO RONTOS vs. PEOPLE OF THE PHILIPPINES, GR188024, June 5, 2013)

5.6. Bail

The definition of bail is clearly spelled out under Sec. 1, Rule 114 of the Revised Rules onCriminal Procedure, as amended by S.C. A.M. 05-8-26 dated August 26, 2005. It states that:

Section 1. Bail defined. Bail is the security given for the release of a person incustody of the law, furnished by him or a bondsman, to guarantee his appearance before any

court as required under the conditions hereinafter specified. Bail may be given in the form of

corporate surety, property bond, cash deposit, or recognizance.

5.6.1. Nature

When a matter of right?; exceptions

In MTC/MCTC

Before or after conviction

In RTC

Before conviction

Except:

Those offenses punishable by reclusion perpetua or higher

Right to bail not available to military officers or personnel;

The right to bail is not available to military personnel or officer charged with a violation

of the Articles of War. (Aswat v. Galido, 204 SCRA 205)

When a matter of discretion?

Section 5. Bail, when discretionary.Upon conviction by the Regional Trial Court of anoffense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail isdiscretionary. The application for bail may be filed and acted upon by the trial court despite the

filing of a notice of appeal, provided it has not transmitted the original record to the appellate

court. However, if the decision of the trial court convicting the accused changed the nature of

the offense from non-bailable to bailable, the application for bail can only be filed with and

resolved by the appellate court.


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Should the court grant the application, the accused may be allowed to continue on

provisional liberty during the pendency of the appeal under the same bail subject to the

consent of the bondsman.

Exceptions to the grant of discretionary bail

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the

accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution,

with notice to the accused, of the following or other similar circumstances:

a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the

crime aggravated by the circumstance of reiteration;

b) That he has previously escaped from legal confinement, evaded sentence, or violated

the conditions of his bail without valid justification;

c) That he committed the offense while under probation, parole, or conditional pardon;

d) That the circumstances of his case indicate the probability of flight if released on bail;

or

e) That there is undue risk that he may commit another crime during the pendency of the

appeal.

Power of the appellate court to review

The appellate court may, motu proprioor on motion of any party, review the resolution ofthe Regional Trial Court after notice to the adverse party in either case.

Burden of proof on bail hearing:

In hearing the petition for bail, the prosecution has the burden of showing that the

evidence of guilt is strong pursuant to 8 Rule 114. In bail proceedings, the prosecution must

be given ample opportunity to show that the evidence of guilt is strong. While the proceeding is

conducted as a regular trial, it must be limited to the determination of the bailability of the

accused. It should be brief and speedy, lest the purpose for which it is available is rendered

nugatory. (People v. Singh, et. al., G.R. No. 129782 (2001)

Sale, etc. of shabu a capital offense

Regardless of quantity, the sale, trade, administration, dispensation, delivery,

distribution and transportation of shabu is punishable by life imprisonment to death. Being a

capital offense, it is incumbent upon respondent Judge to hold a hearing on the

petitions/motions for bail filed by the accused therein to determine whether evidence of guilt is


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strong. To grant an application for bail and fix the amount thereof without a hearing duly called

for the purpose of determining whether the evidence of guilt is strong constitutes gross

ignorance or incompetence whose grossness cannot be excused by a claim of good faith or

excusable negligence. (MABUTAS vs. JUDGE NORMA C. PERELLO)

Rule on bail pending appeal

A finding that none of the said circumstances is present will not automatically result in

the grant of bail. Such finding will simply authorize the court to use the less stringent sound

discretion approach. However, if the appellate court determines the existence of any of the

circumstances, it has no other option except to deny or revoke bail pending appeal. Conversely,

if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be

committed (LEVISTE V. CA)

5.6.4. Hearing of application for bail in capital offenses

The manifestation of the prosecutor that he is not ready to present any witness to prove

that the prosecutions evidence against the accused is strong, is never a basis for the outright

grant of bail without a preliminary hearing on the matter. A hearing is required even when the

prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail

(Domingo vs. Pagayatan)

Judge is not allowed to receive bail of the accused

It is undisputed that respondent judge personally received the cash bail bond for the

accused. For this act alone, respondent is already administratively liable. Section 14, Rule 114 of

the Revised Rules of Criminal Procedure specifies the persons with whom a cash bail bond maybe deposited, namely: the collector of internal revenue or the provincial, city or municipal

treasurer. A judge is not authorized to receive the deposit of cash as bail nor should such cash

be kept in his office. (TRINIDAD LACHICA V JUDGE ROSABELLATORMIS)

Conduct of hearing on bail discretionary

The matter of whether or not to conduct a joint hearing of two or more petitions for bail

filed by two different accused or to conduct a hearing of said petition jointly with the trial

against another accused is addressed to the sound discretion of the trial court. Unless grave

abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will notinterfere with the exercise by the SB of its discretion (SERAPIO V. SANDIGANBAYAN)

5.6.5. Guidelines in Recognizancel

The following are cases where the court may order the release on recognizance of any

person under detention


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a. when the offense charged is for violation of an ordinance, a light, or a criminal

offense, the imposable penalty of which does not exceed 6 months imprisonment and/or P2000

fine, under the circumstances provided in RA No. 6036

b. where a person has been in custody for a period equal to or more than the minimum

of the imposable principal penalty, without application of the Indeterminate Sentence Law orany modifying circumstance, in which case the court, in its discretion, may allow his release on

his own recognizance

c. where the accused has applied for probation, pending resolution of the case but no

bail was filed or the accused is incapable of filing one d. in case of a youthful offender held for

physical and mental examination, trial, or appeal, if he is unable to furnish bail and under

circumstances envisaged in PD No. 603 as amended. (Espiritu v. Jovellanos, A.M. No. MTJ-97-1139 (1997)

5.6.6. Bail when not required

Instances when bail is no longer required

No bail shall be required in the following instances, to wit:

a) When the law or these Rules so provide;

b) When a person has been in custody for a period equal to or more than the possible

maximum imprisonment prescribed for the offense charged, he shall be released immediately,

without prejudice to the continuation of the trial or the proceedings on appeal;

c) If the maximum penalty to which the accused may be sentenced is destierro, he shall be

released after thirty (30) days of preventive imprisonment;

d) A person in custody for a period equal to or more than the minimum of the principal

penalty prescribed for the offense charged, without application of the Indeterminate Sentence

Law or any modifying circumstance, shall be released on a reduced bail or on his own

recognizance, at the discretion of the court.

e) Those offenses punishable by fine

f) Cases falling under Summary procedure

5.6.7. Increase or reduction of bail

The prohibition against requiring excessive bail is enshrined in the Constitution. The

obvious rationale is that imposing bail in an excessive amount could render meaningless the

right to bail. The court has wide latitude in fixing the amount of bail. Where it fears that the

accused may jump bail