Rule 112 Preliminary Investigation

1. Preliminary investigation – inquiry or proceeding to determine if there is sufficient ground to engender

a well-founded belief that a crime cognizable by the RTC has been committed, and that the respondent
is probably guilty thereof, and should be held for trial

A preliminary investigation is only necessary for an information to be filed with the RTC; complaints may
be filed with the MTC without need of an information, which is merely recommendatory (Tandoc vs.
Resultan)

Absence of a preliminary investigation is NOT a ground for a motion to quash the information; an
information filed without a preliminary investigation is defective but not fatal; in its absence, the accused
may ask for one; it is the fiscal’s refusal to conduct a preliminary investigation when the accused
demands one which is a violation of the rights of the accused (Doromal vs. Sandiganbayan). Court
should not dismiss the info, but hold the case in abeyance and either: (1) conduct its own investigation;
or (2) require the fiscal to hold a reinvestigation.

2. GENERAL RULE: The fiscal conducts the preliminary investigation before filing information with the
RTC, EXCEPT where the accused is lawfully arrested without a warrant and an inquest is conducted.

3. Right to Preliminary Investigation

- A personal right and may be waived

-Waived by failure to invoke the right prior to or at least at the time of the plea

4. Who conducts Preliminary Investigation

1. Provincial or city fiscals and their assistants

2. Judges of MTC and MCTC
3. National and regional state prosecutors
4. Such other officers as may be authorized by law
5. Duly authorized legal officers of COMELEC
1. The Ombudsman
2. The PCGG, in cases of ill-gotten wealth

5. Procedure

* If conducted prior to arrest

i. Complainant files complaint with

(a) Provincial or city fiscal

(b) Regional or state prosecutor

(c) MTC or MCTC judge, excluding MTC judge of Metro Manila or chartered cities

(d) Other offices authorized by law

1. Investigating officer either dismisses complaint or asks by subpoena complainant and respondent to
submit affidavits and counter-affidavits
 1. If the investigating officer finds prima facie evidence, he prepares an information and a
resolution
i.e., if fiscal finds reasonable ground to believe that a crime has been committed and accused is
probably guilty thereof
* Prima facie evidence is that evidence which, standing alone, unexplained and uncontradicted, would
be enough to merit a conviction of the accused

iv. Otherwise, he recommends the dismissal of the complaint

* If the investigating officer is an MTC judge, and he finds that probable cause exists and that there is a
need to place the accused under custody, then he may issue a warrant of arrest

* Flores vs. Sumaling – What differentiates the present rule from the previous one is that while before, it
was mandatory for the investigating judge to issue a warrant for the arrest of the accused if he found
probable cause, the rule now is that the investigating judge’s power to order the arrest of the accused is
limited to instances in which there is a necessity for placing him in custody “in order not to frustrate the
ends of justice.” It is therefore error for the investigating judge to order the issuance of a warrant of
arrest solely on his finding of probable cause, without making any finding of a necessity to place the
accused in immediate custody to prevent a frustration of justice.
1. Investigating officer forwards records to the city fiscal or chief state prosecutor
1. City fiscal or state prosecutor either dismisses the complaint or files the information in court

* Decision prevails over decision of the MTC judge

vii. Records will not form records of the case proper

* Court on its own or on motion may order production of record

b. If conducted after warrantless arrest

1. If accused waives Art. 125, RPC and asks for a preliminary investigation, with the assistance of
counsel, then the procedure for one prior to arrest is followed
1. Inquest conducted as follows

(a) Fiscal determines the validity of the arrest

(b) Fiscal determines existence of prima facie evidence based on the statements of the complainant,
arresting officer and witnesses

(c) Fiscal either dismisses the complaint and orders the immediate release of the accused, OR prepares
and files an information

While fiscal has quasi-judicial discretion whether or not to file an information, once it is filed with the
court, the court acquires jurisdiction giving it discretion over the disposition of the case and the Sec. of
Justice should refrain from entertaining petitions for review or appeals from the decision of fiscal (Crespo
vs. Mogul; Velasquez vs. Undersecretary of Justice)
NOTE: Information may be filed by offended party, peace officer or fiscal without preliminary
investigation.

6. Remedies

a. Motion for preliminary investigation

-Filed when accused is arrested without warrant
-Must be with assistance of counsel and after waiving Art. 125, RPC

b. Motion for preliminary investigation

Filed within 5 days after accused learns an information against him has been filed without a preliminary
investigation

c. Motion for re-investigation

d. Appeal to DOJ

à Filed upon denial of his motion for a preliminary investigation, on the ground that his rights to due
process of law were violated, ousting the court of jurisdiction

e. Petition for prohibition

-Filed with appellate court to stop the criminal proceedings

- Ordinarily, injunction will not lie but may be granted in certain cases

- When prohibition proper to restrain criminal proceedings:

1. When strong-arm tactics are used for vindictive purposes (Salonga vs. Cruz-Pano)
2. When the accused is deprived of his rights
3. When the statute on which the charge is based is null and void
4. When it will aid the administration of justice (Tatad vs. Sandiganbayan)
5. When multiplicity of suits will be avoided (Guingona vs. City Fiscal)

Rule 113 Arrest

1. Arrest – taking a person into custody in order that he may be bound to answer for the commission of
some offense, made by an actual restraint of the person or by his submission to custody

2. General Rule: No person may be arrested without a warrant.

-Not all persons detained are arrested; only those detained to answer for an offense.

-“Invitations” are not arrests and are usually not unconstitutional, but in some cases may be taken as
commands (Babst vs. NBI); however, the practice of issuing an “invitation” to a person who is
investigated in connection with an offense he is suspected to have committed is considered as placing
him under “custodial investigation.” (RA 7438)

- Warrants of arrest remain valid until arrest is affected, or the warrant is lifted

-Arrest may be made at any time of the day or night

3. Warrantless arrests by a peace officer or a private person

a. When person to be arrested is committing, attempting or has committed an offense

b. When an offense has just been committed and the person making the arrest has personal knowledge
that the person to be arrested committed it
- Warrantless arrest anytime for a continuing offense like rebellion, subversion (Umil vs. Ramos)
-The continuing crime, not the crime finally charged, needs only be the cause of the arrest (Umil vs.
Ramos)

c. When person to be arrested is an escaped detainee (either serving sentence or with case pending)

1. When a person lawfully arrested escapes

2. Bondsman, for purpose of surrendering the accused
3. Accused attempts to leave country without court permission

4. Procedure

a. With warrant

1. Complainant files application with affidavits attached

2. Judge conducts ex parte preliminary examination to determine probable cause

- In determining probable cause, judge must:

(1) Personally examine witness

(2) Witness must be under oath

(3) Examination must be reduced to writing (Luna vs. Plaza)

- In determining probable cause, the judge may rely on findings by responsible officer (Lim vs. Felix)

iii. Judge issues warrant of arrest

- If without preliminary examination, considered irregular (Bagcal vs. Villaraza)

iv. If peace officer is unable to serve warrant 10 days after issuance, he must file a report and
explanation with judge within 10 days

v. If warrant served

(1) Person informed that he is being arrested

(2) Informed of cause of his arrest

(3) Officer may break door or window if admission to building is refused

(4) Person physically restrained

-For private citizens making an arrest

- May not do so except to do some service to humanity or justice

(5) No violence or unnecessary force may be used

(6) Officer may summon assistance

(7) Person who escapes after arrest may be immediately pursued

vi. Person arrested is brought to nearest police station or jail

b. Without warrant:

1. Person is arrested
1. Person arrested may waive right to Art. 125, RPC and ask for preliminary investigation or
inquest
-Fiscal is not judicial authority contemplated under Art. 125 (Sayo vs. Chief of Police)
1. Fiscal files info

5. Requisites for a warrant of arrest:

1. Probable cause
2. Signed by judge
3. Specifically naming or particularly and sufficiently describing person to be arrested
- John Doe warrants are void for being general warrants (Pangandaman vs. Cesar)

6. Remedies

a. Petition for writ of habeas corpus

-Filed with any court, to effect immediate release of the person detained

-Filed when a person is being illegally detained (without judicial process), or was illegally arrested (void
warrant or unlawful warrantless arrest, or warrantless arrest beyond period with no information filed)

- Habeas corpus is not allowed when:

1. The person is in custody of an officer under process of law, and
2. The court had jurisdiction to issue the process (Luna vs. Plaza)
-If an arrest is improper, the remedy is a motion for quashal of the warrant of arrest and/or a motion to
quash the information, not habeas corpus (Ilagan vs. Enrile)
-Habeas corpus is no longer available after an information has been filed, the information being the
judicial process required by law (Ilagan vs. Enrile)
- Habeas corpus is proper when a person is being restrained illegally, e.g., imprisoned past maximum
penalty allowed by law (Gumabon vs. Director of Prisons)

b. Quashal of warrant of arrest

-Filed with court which issued the warrant of arrest when the warrant of arrest is fatally flawed

c. Motion to quash information

- Filed with court when information against the person arrested has been filed

- Must be made in a “special appearance” before the court questioning only its lack of jurisdiction over
the person of the accused

-Otherwise, the voluntary appearance of the person arrested by filing a motion before the court would be
deemed a submission to the authority of the court, thus granting it whatever jurisdiction it lacked over the
person

- Any irregularity in the arrest is cured when the petitioner submits himself to the jurisdiction of the
court, e.g., by filing for bail (Bagcal vs. Villaraza)
7. V.V. Mendoza, “Rights to Counsel in Custodial Investigation”
à Evolution of rights of the accused under custodial investigation

1. All involuntary confession were inadmissible; accused had to prove involuntariness

1. Involuntary confessions were inadmissible only if they were false
2. Revert to exclusionary rule: any involuntary confession is inadmissible
1. Miranda rule: the accused must be informed of his rights
1. To remain silent
2. Against self-incrimination
3. To counsel
4. Definition of custodial investigation questioned
1. It begins only after arrest
2. Police investigations prior to arrest are not covered
3. The rights may be waived, but the rights to be informed of these rights, i.e.,
to warning, may not be waived
4. Warning must not only be said, officer must make sure the person arrested
understands them specifically
5. Present rules
1. Voluntary confessions are admissible
2. Test of voluntariness determined on a case-to-case basis
3. Waiver of rights must not only be with counsel but must be in writing
- Confessions made without assistance of counsel are inadmissible as evidence to incriminate the
accused, but they may be used to impeach the credibility of the accused, or they may be treated as
verbal admission of the accused through the testimony of the witnesses (People vs. Molas)
Rule 114 Bail
1. Bail – security given for the release of a person in custody of law, furnished by him or a bondsman,
conditioned upon his appearance before any court as required under the following conditions:
1. Undertaking effective upon approval and remains in force at all stages until promulgation of judgment,
unless sooner cancelled
2. Accused shall appear before court when required
3. Failure to appear despite notice to him or the bondsman will waive his right to be present and trial shall
proceed in absentia
4. Bondsman shall surrender accused for execution of judgment
- Bail applies to all persons detained, not just to those charged with the offense (Herras vs. Teehankee)
- Court has power to prohibit person out on bail from leaving the country (Manotoc, Jr. vs. CA)
- Bail implies delivery of the accused to the sureties who, though not holding him prisoner, may seize him
and imprison him until they can deliver him to court (US vs. Bonoan)
2. General Rule: All persons are entitled to bail as a matter of right, except those charged with capital
offenses.
à Right to bail traditionally unavailable to military personnel facing court martial, who are not in the same
class as civilians (Comendador vs. de Villa)
-Bail should be available regardless of other circumstances or the merits of the case, if the health or the
life of the detainee is in danger (Dela Rama vs. People’s Court)
- Excessive bail is tantamount to denial of bail, which is unconstitutional (Dela Camara vs. Enage)

3. When bail is a matter of right

- Before or after conviction by MTC, MCTC, MJC

- Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment
4. When bail is discretionary (application filed with court where case is pending)

1. Upon conviction by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment
2. Provisional liberty under same circs. but during period to appeal subject to consent of bondsman
3. In case he has applied for probation after final judgment, he may be allowed temporary liberty under his
bail or recognizance

5. Procedure

a. Offense charged is not capital:

i. Accused applies for bail

(1) Where information against him was filed or where case is pending

(2) Absent (1), in another branch of the same court within the province or city where he is held

(3) If arrested in another province, city or municipality, file with the RTC

(4) Absent (3), with the MTC

1. Judge sets bail

1. Accused may move to reduce bail, and hearing will be set
2. Accused posts bail and deposits the same with the Municipal/City/Provincial Treasurer or, if
cash, with the Collector of Internal Revenue
3. Accused is released

b. Offense charged is capital:

1. Accused petitions for bail

2. Judge sets hearing to determine whether evidence of guilt is strong
- Ex-parte hearing on bail is arbitrary and unacceptable (Herras vs. Teehankee)
1. Prosecution presents evidence
1. Court may not force fiscal to produce evidence (Herras vs. Teehankee)
2. If evidence is strong, bail is denied
1. Otherwise, judge sets bail and procedure for non-capital offense is followed
- In capital crimes, judge’s discretion is limited to determining strength of evidence and does not cover
determining whether bail should be allowed (Herras vs. Teehankee)
- Evidence must be strong that the accused is guilty of the capital offense charged, not just of any
offense (Bernardez vs. Valera)
6. Bail bond – an obligation under seal given by accused with one or more sureties and made
payable to proper officer with the condition to be void upon performance by the accused of such acts as
he may legally be required to perform

7. Recognizance

1. Obligation of record entered into before some court of magistrate duly authorized to take it, with the
condition to do some particular act, the most usual condition in criminal cases being the appearance of
the accused for trial
2. Does not require signature of accused for trial
3. Does not require signature of accused to be valid
8. Prosecution witnesses may be required to post bail to ensure their appearance at the trial, except:
1. Substitution of info (see R110, §14)
 2. Court believes that material witness may not appear at the trial

9. When bail required under RA 6036 (violation of ordinance, light felony, criminal offense – not higher
that 6 month imprisonment and/or P2000 fine, or both)

1. a. Caught in flagrante
2. Confessed to commission of offense unless repudiated (force and intimidation)
3. Previously escaped, evaded sentence or jumped bail
4. Violation of Sec. 2 (fails to report to clerk of court periodically under his recognizance)
5. Recidivist, habitual delinquent previously convicted for an offense to which the law or ordinance
attaches an equal or greater penalty or for 2 or more offenses to which it attaches a lighter penalty
6. Committed offense while on parole or under conditional pardon
7. Previously pardoned by municipal or city mayor for violation of ordinance for at least 2 times

10. Instances when accused may be released on recognizance:

1. Offense charged is a violation of an ordinance, a light felony or criminal offense the imposable penalty
to which does not exceed 6 months and or P2000 fine
2. 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 or any modifying circumstance
3. Accused has applied for probation and before the same has been resolved, but NO BAIL was filed or
accused is incapable of filing one
4. Youthful offender held for physical and mental examination, trial or appeal, if unable to furnish bail

11. Cancellation of bail

a. Upon application with the court and due notice to the fiscal

1. Accused surrenders back to custody

1. Accused dies

b. Automatic cancellation

1. Case is dismissed
1. Accused is acquitted
2. Accused is convicted and surrenders for execution of judgment

12. When bail cancelled or denied: after RTC imposes imprisonment exceeding 6 years, but not more
than 20 years, and:

1. Accused is a recidivist, quasi-recidivist, habitual delinquent or guilty of the aggravating circumstance of

reiteration;
2. Provisionally escaped, evaded sentence, violated provisions of bail;
3. Committed offense while on probation, parole, or conditional pardon;
4. Probability of flight; or
5. Undue risk that during appeal, he may commit another crime

13. When bail is forfeited

a. Accused fails to appear before court when required

à 30 days for bondsman to show cause why judgment should not be rendered against him

b. Bondsman fails to produce him within 30 days

c. Bondsman fails to satisfactorily explain to the court why accused did not appear when first required to
do so

- Sureties guarantee only appearance of the accused, not his conduct (US vs. Bonoan)
- Sureties exonerated if appearance made impossible by an act of God, the obligee or the law (US vs.
Bonoan)

14. Provisional forfeiture

1. Within 30 days, produce the body or give reason for non-production AND
2. Explain satisfactorily the absence of the accused when first required to appear

15. Remedies

1. Application for bail, when bail can be availed of as a matter of right

2. Petition for bail, when the offense charged is a capital offense

à For judge to set hearing for the determination of strength of evidence of guilt

16. Circumstances to be considered in fixing amount of bail:

1. Financial ability of accused to give bail;

2. Nature and circumstances of offense;
3. Penalty of offense charged;
4. Character and reputation of accused;
5. Age and health of accused
6. Weight of evidence against accused
7. Probability of accused appearing for trial;
8. Forfeiture of other bonds;
9. Fact that accused was a fugitive from justice when arrested; and
10. Pendency of other cases in which the accused is under bond

17. Notes:

1. Posting bail waives the right to question any irregularity attending the arrest of a person (Callanta vs.
Villanueva). However, this does not result in waiver of the inadmissibility of the articles seized
incidentally to such illegal arrest.
2. Accused waived the right to question any irregularity in the conduct of the preliminary investigation
when he failed to do so before entering his plea (People vs. Dela Cerna)
3. Accused out on bail may be re-arrested if he attempts to depart from the Philippines without prior court
permission (warrantless arrest allowed).
Rule 115 Rights of Accused

1. Right of the accused under the Rules

a. To be presumed innocent until proven guilty beyond reasonable doubt

à In an appeal from a conviction, the accused shall again be presumed innocent until and unless his
conviction is affirmed (Castillo vs. Felix)

b. To be informed of the nature and cause of charges

à The right must be substantially complied with; arraignment and later proceedings must be in a
language the accused understands (People vs. Crisologo)

c. To be present at every stage of proceedings, subject to waiver by bail

- If an accused escapes, he waives this right and merits a trial in absentia; the accused forfeits his
rights to be notified of proceedings in the future and to adduce evidence in his behalf (People vs. Salas)
1. To testify as witness on his own behalf, subject to cross-examination on matters covered by direct
examination; not to be prejudiced by his silence
2. Not to be compelled to be a witness against himself
3. To confront and examine the witnesses against him, including the right to use in evidence testimony of
a witness
4. Who is deceased, out of or cannot with due diligence be found in the RP
1. Given in another proceeding
2. With the same parties
3. Same subject matter
4. Opportunity to cross-examine
-Prosecution has no privilege to withhold the identity of informers when such informer was crucial in the
operation itself; failure to present the informer is a denial of the right to confront the witness which merits
the reversal of the conviction (People vs. Bagano)

g. To have compulsory process to secure witnesses and evidence in his behalf

h. To have a speedy, impartial and public trial

à Unreasonable postponements of trial amounts to a denial of the right to a speedy trial, entitling the
accused to mandamus to compel dismissal of the case, or to habeas corpus if he is detained

i. To have the right of appeal

2. Rights of the accused under the Constitution

a. To due process

b. Against self-incrimination

- Right is limited to testimonies; ocular inspection of the body may be allowed (Villaflor vs. Summers)
- Being informed of rights means a meaningful transmission of information, without which confession
made by the accused is inadmissible (People vs. Nicandro)
- Confessions obtained through coercion are inadmissible (People vs. Opida)
-Right against self-incrimination and to counsel do not apply during custodial investigation (People vs.
Ayson)

-During trial, the right against self-incrimination takes the following form:

1. Accused may refuse to testify

2. If he testifies, he may refuse to answer those questions which may incriminate him in ANOTHER
offense

c. Against double jeopardy

d. To be heard by himself and counsel

3. Double jeopardy

1. First jeopardy must have attached prior to the first

2. First jeopardy attached and terminated
3. Valid complaint or information
1. Competent court with jurisdiction
2. Accused had pleaded
3. Action ended in conviction, acquittal or termination without the consent of the accused

c. Offense charged in later case is:

1. Same as that in previous case

1. Necessarily includes or is included in the previous case
2. An attempt or frustration of the offense in previous case
1. An offense lesser than that charged to which the accused pleaded guilty with the consent
of the fiscal and the offended party

4. Exceptions to double jeopardy

1. The offense was made graver by supervening events

2. The facts constituting the graver offense were only discovered after the filing of the earlier information
- No double jeopardy if the new fact which justified the new charge arose only after arraignment and
conviction (People vs. City Court)
-No double jeopardy where the trial was a sham since there was no competent court (Galman vs.
Sandiganbayan)
- No double jeopardy if first case was dismissed with consent of the accused (Caes vs. IAC)
- There is double jeopardy if a person is charged twice under different penal statutes for the same acts
(People vs. Relova)

c. Plea of guilty to a lesser offense without the consent of the fiscal and the offended party

5. Remedies

1. Motion to quash
2. Motion to dismiss

- Both filed on the ground of violation of accused’s rights, thereby ousting the court of jurisdiction

6. NOTES:

- Constitution, Art. III, Sec. 1

No person shall be deprived of life, liberty or property without due process of law, nor shall any person
be denied the equal protection of the laws.

- Constitution, Art. III, Sec. 14

1. No person shall be held to answer for a criminal offense without due process of law.
2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be informed of the nature and cause of the accusations against him, to have a
speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that
he has been duly notified and that his failure to appear is unjustifiable.

- Constitution, Art. III, Sec. 16

All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.

-Constitution, Art. III, Sec. 17

No person shall be compelled to be a witness against himself.

- Constitution, Art. III, Sec. 21

No person shall be twice put in jeopardy of punishment for the same offense.

If an act is punished by a law or ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

Rule 116 Arraignment and Plea

1. Procedure

1. Court informs accused of his right to counsel and asks him if he wants one
2. Court appoints counsel de oficio if accused has none

à If no such member of the available, any person who is a resident of the province, of good repute for
probity and ability to defend accused

c. Court gives counsel time to confer with accused at least an hour before arraignment

- Period allowed for counsel de oficio to confer with accused must be substantially complied with; if not,
case may be remanded for re-arraignment (People vs. Gonzaga)
1. Accused given a copy of the information, which is read to him in a language he understands
2. Accused is asked whether he pleads guilty or not guilty
3. Accused files a motion to quash or makes plea
4. Accused personally makes his plea
5. Plea is entered into record
6. If accused makes plea of not guilty, counsel has at least 2 days to prepare for trial
- People vs. Agbayani – the right for 2 days to prepare must be expressly demanded. Only when so
demanded does denial thereof constitute reversible error and ground for new trial. Further, such right
may be waived, expressly or impliedly.

- NOTE, HOWEVER, under SC Circular 38-98 (implementing “Speedy Trial Act of 1997”), accused must
be given at least 15 days to prepare for trial, which shall commence within 30 days from receipt of Pre-
Trial Order.

j. Case proceeds to pre-trial, trial or hearing, depending on the plea

- Statement in the judgment that the accused was arraigned and pleaded is sufficient; the manner of
statement of such fact is immaterial (People vs. Cariaga)

2. Kinds of plea
 1. No plea – a plea of not guilty shall be entered
2. Conditional plea of guilt – a plea of not guilty shall be entered
3. Not guilty – case proceeds to trial or pre-trial
4. Guilty to a lesser offense – if fiscal and offended party consents, conviction under offense charged for
purposes of double jeopardy
5. Info may be amended
1. Case goes to trial
2. Even if info is not amended, and even if lesser offense is not included in offense charged, court
may still find the accused guilty of that lesser offense

e. Guilty to a capital offense

- Court conducts searching inquiry to determine if accused was aware of the charges, of his plea, and its
consequences

-Court requires prosecution to present evidence to prove guilt of accused and determine his degree of
culpability, and accused may still establish presence of mitigating circumstances in his favor

f. Guilty to a non-capital offense

- Court receives evidence from the parties to determine penalty to impose

- Plea of guilty not necessarily followed by conviction. Upon receipt of exculpatory evidence (if accused
pleaded guilty), trial court should consider the plea withdrawn and in its place, order the plea of not guilty

- Plea of guilty waives only defects which may be taken advantage of by motion to quash or by plea in
abatement; cannot cure jurisdictional defects.

3. Effects

a. Entry of plea will waive

1. Right to question illegality of the arrest

2. Right to question any irregularity in the preliminary investigation
3. Right to file a motion to quash

b. Improvident plea of guilty may be changed to not guilty any time before judgment is rendered

c. A plea of not guilty may not be changed to guilty, as doing so would only spare the prosecution of
presenting evidence and still result in the conviction of the accused.

4. Remedies

a. Motion for specification

- May be filed any time before plea, even after a MTQ

- Filed when the information is insufficient in form or is generally worded, that a Bill of Particulars is
necessary to clarify the acts for which the accused is being charged

b. Motion to quash

- May be filed at anytime before plea is entered

-Based on grounds provided by the rules

c. Motion to suspend arraignment

- Filed when the accused seems mentally unsound or if there is a prejudicial question in a pending civil
case

d. Motion to withdraw an improvident plea of guilt

- May be filed at any time before judgment of conviction becomes final, when it can be shown that the
accused was not aware of the significance of pleading guilty to the charges

Rule 117 Motion to Quash

1. Motion to quash – a hypothetical admission that even if all the facts alleged were true, the accused
still cannot be convicted due to other reasons

2. When to file Motion to Quash

General Rule: Before entering plea; all grounds not raised deemed waived

Exception: The following grounds may be used in MTQ even after plea
1. No offense charged
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or of the penalty
4. Double jeopardy

3. Grounds

a. Information does not conform to prescribed form

- For the info to charge a complex crime, it is not necessary that it be defined by law, only that it alleges
that one offense was necessary to commit the other (People vs. Alagao)

b. Court has no jurisdiction

1. No territorial jurisdiction
2. No jurisdiction over offense charged may be raised at any time; no waiver considered even upon
failure to move to quash on such ground
3. No jurisdiction over person of the accused
- The court gained jurisdiction over the person of the accused when he voluntarily appeared for the pre-
suspension hearing (Layosa vs. Rodriguez)

c. Accused would be put in double jeopardy

- Bars another prosecution

- No waiver

- No double jeopardy if first case was dismissed with the consent of the accused (Que vs. Cosico),
unless ground for dismissal is: (a) denial of right to speedy trial; or (b) insufficiency of evidence.
- If the first case was dismissed due to a deficient information, then there was no valid information and
there could be no double jeopardy (Caniza vs. People)
- Cudia vs CA – it should be the Provincial Prosecutor of Pampanga, not the City Prosecutor, who
should prepare informations for offenses committed within Pampanga but outside Angeles City. An
information must be prepared and presented by the prosecuting attorney or someone authorized by
law. If not, the court does not acquire jurisdiction. Although failure to file a motion to quash the
information is a waiver of all objections to it insofar as formal objections to pleadings are concerned,
questions relating to want of jurisdiction may be raised at any stage of the proceedings. Moreover, since
the complaint or information was insufficient because it was so defective in form or substance that
conviction upon it could not have been sustained, its dismissal without the consent of the accused
cannot be pleaded as prior jeopardy, and will not be a bar to a second prosecution.

d. More than one offense was charged, EXCEPT where law prescribes single punishment for various
offenses

e. Facts alleged do not constitute an offense

- May be raised at any time

- No waiver

- For charge to be complete, it is necessary to state that it was exempted from any amnesty existing at
the time

f. Criminal action or liability has been extinguished

g. Information contains allegations which, if true, would be a legal excuse or justification

h. Officer who filed the information had no authority

-Presentation of evidence cannot cure an invalid information (People vs. Asuncion)

NOTE: Court will consider no other grounds other than those raised, EXCEPT lack of jurisdiction over
offense charged.

4. Requisites of Double jeopardy

a. Valid information or complaint, sufficient in form and substance

b. Before court of competent jurisdiction

- Doctrine of “Jurisdiction by Estoppel”: depends upon whether the lower court actually had jurisdiction
or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction,
the parties are not barred on appeal, from assailing such jurisdiction, for the same ‘must exist as a matter
of law, and may not be conferred by consent of the parties or by estoppel’. However, if the lower court
had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the
court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal,
to assume an inconsistent position — that the lower court had jurisdiction. Here, the principle of estoppel
applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties,
has no bearing thereon.

c. Accused had pleaded

d. Conviction, acquittal, or dismissal or termination of case without consent of accused

e. Bar to offense charged, attempt to commit the same or necessarily includes or is necessarily
included

- Conviction for physical injuries through reckless imprudence constitutes double jeopardy to the charge
of damage to property through reckless imprudence.

5. Procedure

1. MTQ filed
2. If based on defect in info which can be cured, court shall order its amendment
3. Quashing the info shall NOT be a bar to subsequent prosecution (accused has not pleaded yet),
EXCEPT when the ground is:
1. Double jeopardy OR
2. Extinction of criminal liability

6. Remedies

1. Motion to dismiss – if certain grounds were not raised or denied in a MTQ

2. Trial

- If there was really no basis for the info, then such could be proved in the trial

- Upon denial of a MTQ, the proper remedy is to go on trial and later to appeal, if necessary; mandamus
or certiorari will only be granted if there is not other plain, simple and adequate remedy
7. Failure to move to quash or to allege any ground therefor deemed a waiver of such grounds, except:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or of the penalty
4. Double jeopardy
Rule 118 Pre-Trial
1. Plea bargaining – process whereby the accused and the prosecution in a criminal case work out a
mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s
pleading guilty to a lesser offense or to only some of the counts of a multi-count indictment in return for a
lighter sentence than that for the greater charge.

-Under “Speedy Trial Act of 1997”, in all criminal cases cognizable by the MTC, MCTC, MeTC, RTC and
Sandiganbayan, pretrial is mandatory.

- Under SC Circular 38-98, implementing the “Speedy Trial Act of 1997”, an accused may plea guilty to a
lesser offense only if said offense is necessarily included in the offense charged.

2. Stipulation of facts

- Facts which both parties and respective counsels agree on as evidenced by their signatures; these
facts need not be proved by evidence in trial

- Stipulation is inadmissible if unsigned by either accused or counsel; a later memo of confirmation,

signed only by counsel, cannot cure defect (Fule vs. CA)

3. Pre-trial order – binds the parties, limits the trial to matters not yet disposed of, and controls the
course of action during the trial

4. Procedure
 1. Judge must calendar pre-trial
2. Either party may waive the pre-trial
3. If court appoints counsel de oficio, counsel has at least 2 days to prepare
4. In the pre-trial conference
5. Plea bargaining
6. Stipulation of facts
7. Marking of evidence (does not imply conceding to its admissibility or credibility)
8. Waiver of objections to admissibility of evidence
9. Other matters which will promote a fair and expeditious trial

e. Judge issues pre-trial order

Rule 119 Trial

1. In trial, the defense tries

1. To assail the admissibility of evidence which prove the elements of the offense charged
2. To assail the credibility of such evidence
3. To prove another version, possibly admitting certain evidence of the prosecution and adding other
evidence to cast reasonable doubt
- Even in summary procedure, the judge cannot base his decision simply on affidavits; he must give the
defendant the chance to cross-examine (Combate vs. San Jose)

2. Procedure

a. Parties notified of date of trial 2 days before trial date (R119, §1)

- HOWEVER, under SC Circular 38-98, accused must be given at least 15 days to prepare for trial,
which shall commence within 30 days from receipt of Pre-Trial Order.

1. Accused may move that his witnesses be examined

2. Defense witnesses examined by any judge or lawyer
3. Prosecution witnesses, if they would be unable to attend trial, may be examined by the judge handling
the case
4. Trial continues from day to day, unless postponed for a just cause
5. Prosecution presents evidence

- Presentation

-Testimonies: direct examination

- Cross-examination

- Re-cross

- Offer

1. Accused may move for discharge

2. Prosecution rests
3. Defense may, with or without leave of court, file a demurrer to evidence
4. Defense presents evidence
5. Defense rests
6. Prosecution presents rebuttal evidence
7. Defense presents rebuttal evidence
 8. Trial is closed; case is submitted for judgment

3. When mistake made in charging proper offense

1. If Accused cannot be convicted of offense charged or offense necessarily included therein

2. Accused detained, not discharged
3. Original case dismissed upon filing of proper information
- Example: Charged with theft. At trial, appears that offense is estafa. The prosecution can ask for the
dismissal of the info in order to file a new one for estafa. No Double Jeopardy because no valid info in
the first case.

4. Application for examination of witnesses for accused before trial

1. Sick or infirm; unable to attend trial

2. Resides more than 100 km. from means of trial; no means to attend

5. Application (prosecution)

1. Sick or infirm
2. Has to leave the RP with indefinite date of returning

6. Requisites for postponement due to absence of a witness

1. Witness is really material and appears to the court to be so

2. Party who applies for postponement has not been guilty of neglect
3. Witness can be had at the time to which the trial has been deferred
4. No similar evidence could be obtained

7. Requisites to discharge of an accused as State Witness

1. Testimony of accused absolutely needed

2. No other direct evidence available EXCEPT his testimony
3. Testimony can be corroborated on material points
4. Accused does not appear to be most guilty
5. Accused has never been convicted of offense involving moral turpitude
- Discharge of accused, when not all the requisites were met, cannot be revoked as long as he testified
according to what was expected of him (People vs. Aninon)

8. Remedies

a. Motion for separate trials

- Filed by the fiscal to try several accused separately

- Granted at the court’s discretion

- May also be ordered by the court motu proprio

b. Motion to consolidate

- Upon the court’s discretion, separate charges may be tried in one single case if the offenses charged
arise form the same facts or form part of a series of similar offenses
- Court allowed consolidation of rape cases substantially committed in the same manner (People vs.
David)

c. Motion for continuance – filed to postpone trial for just cause

d. Motion to exclude public

- Excluding parties, counsels and court personnel

- May also be ordered by court motu proprio

e. Motion for discharge

- Filed before the prosecution rests

- Hearing to determine existence of requisites for discharge

- Prosecution will present evidence and the sworn statement of the proposed state witness

- Evidence adduced in this said hearing automatically form part of trial; however, if court denies motion
for discharge, his sworn statement shall be inadmissible in evidence.

- Discharge of the accused has the effect of acquittal, unless accused fails or refuses to testify against
his co-accused in accordance with his statement (which formed the basis for his discharge)

f. Demurrer to evidence

- May be made after the prosecution rests its case

- If the court finds the prosecution’s evidence insufficient, the case will be dismissed

- Otherwise, if demurrer denied

1. If the demurrer was made with leave of court, defense gets to present evidence
2. If the demurrer was made without leave of court, defense is deemed to have waived the right to present
evidence and the case is submitted for judgment
- Case may also be dismissed motu proprio

g. Motion to reopen

- Filed after the case is submitted for judgment but before judgment is actually rendered

-To allow either side to present additional evidence, if such could not be found before

- Granted on discretion of the judge

- The accused cannot move to reopen the case to allow him to adduce evidence in his behalf when his
failure to adduce them during the trial was his own fault (People vs. Cruz)

Rule 120 Judgment

1. Judgment – adjudication by the court that the accused is guilty or not guilty of the offense charged,
and the imposition of the proper penalty and civil liability provided by law on the accused
2. General Rule: If the accused is found not guilty, he will be acquitted and the acquittal immediately
becomes final and executory. If the accused is found guilty, penalty and civil liability will be imposed on
him.

3. Accused may be convicted of

1. The offense charged

2. A lesser offense necessarily included in the offense charged
à Accused cannot be convicted for an offense graver than that charged (People vs. Guevarra)

4. Contents

1. Written in official language

2. Personally prepared and signed by the judge
3. Contains facts proved
4. Contains law upon which judgment is based
- In case of conviction, judgment must state:
1. Legal qualification of offense and aggravating and mitigating circumstances
2. Level of participation
3. Penalty imposed
4. Civil liability for damages, unless right to separate civil action has been reserved
- In case of acquittal, judgment must state:
1. Civil liability for damages, unless acts alleged clearly did not exist
2. Basis of liability

5. Procedure

1. Judge reads judgment in presence of accused

2. If judgment is of acquittal
3. It becomes final and executory
4. It bars subsequent prosecution for the same offense

c. If judgment is of conviction, remedy is to file:

1. Motion for reconsideration

2. Motion for new trial
3. Notice of appeal

à Or else, judgment becomes final and is entered in the book of Judgments

6. When judgment in a criminal case becomes final:

1. After lapse of period for perfecting an appeal; or

2. When sentence partially or totally satisfied or served; or
3. Accused has expressly waived in writing his right to appeal, EXCEPT in cases of automatic review
where death penalty is imposed
4. Accused has applied for probation

7. Only a judgment in conviction can be modified or set aside

1. Before judgment had been final (otherwise double jeopardy);

2. Before appeal had been perfected; or
3. To correct clerical errors in the judgment
8. Remedies

a. Appeal

- Filed within 15 days of promulgation of judgment

- Period is interrupted by filing of a motion for new trial or reconsideration

- On motion of accused or at its own instance with consent of the accused

b. Motion for reconsideration

- Filed when there are errors of law or fact in the judgment

- Shall require no further proceedings

- Notice should be given to the fiscal

c. Motion for new trial

- Notice should be given to the fiscal

- Filed on the following grounds:

1. Error of law or irregularities have been made during trial which are prejudicial to the substantial rights of
the accused

ii. New evidence has been found which could not have been found before and which could change the
judgment

9. Procedure for new trial

1. Hearing shall be set and held

2. All evidence not alleged to be in error shall stand
3. New evidence will be introduced
4. Old judgment may be set aside and a new one rendered
10. Notes:
- Suspension of sentence for youthful offenders – after conviction, minor is committed to custody and
care of DSWD or any training institution until reaches 21 years of age, or a shorter period
-Probation – disposition under which a defendant after conviction and sentences, is released subject to
conditions imposed by the court and to the supervision of a probation officer
- Parole – the conditional release of an offender from a penal or correctional institution after he has
served the minimum period of his prison sentence under the continued custody of the state and under
conditions that permit his reincarceration if he violated the conditions of his release
Rule 121 New Trial or Reconsideration

1. Reopening of the case

1. Made by the court before judgment is rendered in the exercise of sound discretion
2. Does not require consent of accused
3. May be made at the instance of either party who can thereafter present additional evidence

2. Motion for new trial

 1. Filed after judgment is rendered but before the finality thereof
2. At the instance or with the consent of the accused
3. The prosecution can move only for the reconsideration of the judgment but cannot present additional
evidence

3. Motion for New Trial is denied if:

1. Only impeaching evidence is sought to be introduced as the court had already passed upon issue of
credibility
2. Only corroborative evidence is offered
3. Prisoner admits commission of crime with which accused is charged (facility with which such
confession can be obtained and fabricated)
4. Alleged new evidence is inherently improbable and could easily be concocted
5. Alleged new evidence consists of recantations of prosecution witness, due to unreliability of such
recantations, EXCEPT if no other evidence to sustain conviction aside from recanted testimony

4. New Trial vs. Reconsideration

- Motion for recon is based on the grounds of errors of law in the judgment is court is not asked to
reopen the case for further proceedings, but to reconsider its findings or conclusions of law and make
them conformable to the law applicable to the case on the judgment the court has to render anew.

5. New Trial vs. Modification of Judgment

à In New Trial, irregularities are expunged from the record and/or new evidence is introduced. In
modification of judgment, no new hearings or proceedings of any kind or change in the record or
evidence. A simple modification is made on the basis of what is on the record.

6. New Trial vs. Reopening of the Case

-New trial presupposes that existence of a judgment to be set aside upon the granting of a new trial

-In reopening, no judgment has yet been rendered, although the hearing may have already been closed

7. Motion for Reconsideration

- Grounds are errors of law or fact in judgment, which require no further proceedings.

8. Effects of Granting Motion for New Trial or Reconsideration

a. Based on error of law or irregularities during trial:

- Proceedings and evidence not affected by irregularities stand, and those affected are set aside. Court
may allow introduction of new evidence

b. Based on newly discovered evidence:

- Evidence already taken shall stand; new evidence taken with the old
Rule 122 Appeal

1. Procedure

a. Filed with RTC, if original case was with MTC

à Notice served to lower court and to adverse party

b. Filed with the CA or SC, if original case was with RTC

i. With CA: notice of appeal with court, and with copy on adverse party

- If CA is of opinion that penalty should be reclusion perpetua or higher, it shall render judgment
imposing said penalty, but refrain from entering judgment and then certify the case and the entire record
thereof to the SC for review (R124, §13)

= CA may reverse, affirm, or modify judgment of RTC, or remand case for new trial or re-trial, or dismiss
the case

- If RTC decided case in appellate jurisdiction: Petition for Review

ii. With SC: notice of appeal where penalty imposed is life imprisonment, or lesser penalty involving
offenses committed on the same occasion, or arising out of same occurrence where graver penalty of
death is available but life imprisonment is imposed; all other cases, by petition for review on certiorari

-If death penalty, automatic review

iii. Withdrawal of appeal

- May be made at any time before judgment on the appeal is rendered

- Lower court judgment becomes final

- Case remanded for execution of judgment

- Once notice of appeal is filed, cannot be validly withdrawn to give way for a Motion for Recon or a
Motion for New Trial, since the filing of the notice perfected the appeal, and the trial court loses its power
to modify or set aside the judgment. The only valid withdrawal of an appeal is where the accused
decides to serve his sentence.

2. Effect of appeal by any of several accused

1. Shall not affect those who did not appeal, EXCEPT if favorable and applicable to them
2. Civil appeal by offended party shall not affect criminal aspect of judgment
3. Execution of judgment on appellant will be stayed upon perfection of appeal

3. When appeal by prosecution from order of dismissal of criminal case will not result in double jeopardy

1. Dismissal made upon motion or with express consent of the accused

2. Dismissal is not an acquittal nor based upon consideration of the evidence or merits of the case
 3. Question to be passed upon by the appellate court is purely legal so that if the dismissal is found
incorrect, the case has to be remanded to the court of origin to determine the guilt or innocence of the
accused
4. When serving sentence, remedy is to petition for habeas corpus
1. Filed when the law under which the accused was convicted is repealed or declared unconstitutional
2. When a later judgment is rendered acquitting others for similar circumstances

- Otherwise, equal protection is violated

1. When penalty is lowered and convict has already served more than the maximum period of the new
penalty
- Habeas corpus is available when a person is imprisoned beyond the maximum penalty imposed by law
(Gumabon vs. Dir. of Prisons)
NOTE: When dismissal is capricious, certiorari lies and no double jeopardy since validity and not
correctness of dismissal is being challenged.

Rule 126 Search and Seizure

1. Search warrant – an order in writing issued in the name of the People of the Philippines, signed by a
judge and directed to a peace officer, commanding him to search for personal property described therein
and bring it before the court
-Cannot be issued to look for evidence (Uy Khetin vs. Villareal)
- Seizing objects to be used as evidence is equivalent to forcing one to be a witness against himself (Uy
Khetin vs. Villareal)
- For a warrant to be valid, it must meet the requirements set by law (Burgos vs. Chief of Staff)
-Tapping conversations is equivalent to a search and seizure (US vs. Katz)

2. General Rule: No search or seizure can be conducted unless it is authorized by a search warrant.
Evidence gathered from an illegal search and seizure is inadmissible.

- Warrantless searches are illegal, unreasonable and unconstitutional (Alvarez vs. CFI)
à It is not the police action which is impermissible, but the procedure and unreasonable character by
which it is exercised (Guazon vs. de Villa)
- Court gains jurisdiction over items seized by a valid search warrant and returned to it, and such is not
an unconstitutional deprivation of property (Villanueva vs. Querubin)
- Evidence from an illegal search may be used as evidence, if no objection is raised (Stonehill vs.
Diokno)

-Right against unreasonable search and seizure may be waived, but for the waiver to be effective:

1. The right must exist

2. Person must be aware of the right
3. Person clearly shows the intent to relinquish such right
- No waiver against unreasonable search and seizure when one compromises the criminal proceedings
(Alvarez vs. CFI)
- There is no waiver of right when evidence of coercion is present (Roan vs. Gonzales)

3. Requisites of a valid search warrant

a. Issued upon probable cause

- Probable cause – such facts and circumstances which would lead a reasonably prudent man to believe
that a crime has been committed and the thing to be searched for and seized is in the place to be
searched

b. Probable cause is personally determined by the issuing judge

- Hence, signed by him

- By any RTC, to be served anywhere in the country, for an offense which occurred anywhere in the
country (Malaloan vs. CA)

c. Issuing judge personally examined, in the form of searching questions, the appellant and his witness
and took down their written depositions

d. Search warrant particularly describes or identifies the property to be seized

- Property which men may lawfully possess may not be the object of a search warrant (Uy Khetin vs.
Villareal)
- Nature of goods may allow description to be general or not too technical (Alvarez vs. CFI)

e. Particularly describes the place to be searched

f. It shall issue only for one specific offense

- Otherwise, cannot be said to have issued upon probable cause (Asian Surety vs. Herrera)
- Absence of specific offense makes impossible determination of probable cause (Stonehill vs. Diokno)

g. Was not issued for more than 10 days prior to a search made pursuant thereto (search warrant
becomes void after 10 days)

h. Indicates time, if to be served at night

4. When a search warrant may be said to particularly describe the thing to be seized

1. Description is as specific as circumstances allow

2. Expresses a conclusion of fact by which the warrant officer may be guided
3. Things described are limited to those which bear a direct relation to the offense for which the warrant is
issued

5. Procedure

a. Complainant files application, attaches affidavits

- Oath requires that the person taking it personally knows the facts of the case (People vs. Sy Juco)
à Affidavits submitted must state that the premises is occupied by the person against whom the warrant
is issued, that the objects to be seized are fruits or means of committing a crime, and that they belong to
the same person, thus, not affecting third persons (People vs. Sy Juco)
- When complainant’s knowledge is hearsay, affidavits of witnesses are necessary (Alvarez vs. CFI)
b. Judge conducts ex parte preliminary examination of complainant and witnesses under oath to
determine probable cause
- Judge must ask probing questions, not just repeat facts in the affidavit (Roan vs. Gonzales)

c. Judge issues search warrant good for 10 days

d. Peace officer in presence of occupant, members of the family OR 2 witnesses of sufficient age and
discretion residing in the same locality

- Search may last for more than a day as long as it is part of the same search for the same purpose and
of the same place (Uy Khetin vs. Villareal)

e. Peace officer leaves receipt with occupant at place searched

f. Peace officer files return of search warrant and inventory, and surrenders items seized to receiving
court (not necessarily court which issued the warrant)

- Items seized illegally must remain in custodia legis pending resolution of the case (Roan vs. Gonzales)

6. Remedies from an unlawful search

1. MTQ the warrant

2. Motion to suppress as evidence the objects illegally taken
3. Return of property illegally seized

7. When a search may be validly conducted without a warrant

1. Without consent of person searched

2. When the search is incident to a lawful arrest
3. Personal knowledge of the arresting person (Posadas vs. CA)
4. Limited to:

(1) Immediate time of arrest

(2) Immediate vicinity of the arrest

(3) Weapons and things which may be used as proof of offense charged (Nolasco vs. Pano)
iii. Subject in an offense which is mala prohibita cannot be summarily seized (Roan vs. Gonzales)

iv. May extend beyond arrestee to include premises and surrounding under his immediate control

1. Border searches (customs, mail and airport)

2. Vessels and aircrafts for violation of Tariff and Customs Code, EXCEPT dwelling houses
3. Plain view
4. Moving vehicle
5. Hot pursuit
6. Stop-and-frisk, reasonable check-points
7. Private searches with no state action (People vs. Marti)
8. Inspection of building and premises for enforcement of fire, sanitary and building regulations

8. Person making the arrest may take from the arrestee

1. Properties used in the commission of the crime

2. Fruits or proceeds thereof
3. Property which may furnish the arrestee with a weapon against the arresting person
4. Property which may be used as evidence at the trial
9. NOTES:

- Constitution, Art. III, Sec. 2

The right of the people to be secure in their persons, papers, houses and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

- Constitution, Art. III, Sec. 3

1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.
2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in the proceeding.

Rule 127 Provisional Remedies in Criminal Cases

1. Attachment as provisional remedy in criminal cases

1. Accused is about to abscond from RP

2. Criminal action is based on a claim for money or property embezzled or fraudulently misapplied or
converted to the use of the accused who is a public officer, or any officer of a corporation, or an
attorney, factor, broker, agent or clerk in a fiduciary capacity, in willful violation of duty
3. Accused has concealed, removed or disposed of his property, or is about to do so
4. Accused resides outside the RP

Q: When is appeal taken?

An appeal must be filed within fifteen (15) days counted from the promulgation or notice of the
judgment or order appealed from.

Q: What are the effects of appeal by any of the several accused?

1. An appeal taken by one or more of several accused shall not affect those who did not appeal,
except insofar as the judgment of the appellate court is favorable and applicable to the latter;

2. The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the
judgment or order appealed from; and

3. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be
stayed as to the appealing party (Sec. 11).

Note: In People v. Fernandez (G.R. No. 80481, June 27, 1990), the SC applied the benefit of an
acquittal handed down in an appeal to an accused who jumped bail or escaped.

GROUNDS FOR DISMISSAL OF APPEAL

Q: What are the grounds for the dismissal of an appeal?

1. Failure of the record on appeal to show on its face that the appeal was taken within the period
fixed by these Rules;

2. Failure to file the notice of appeal or the record on appeal within the period prescribed by these
Rules;

3. Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of Rule
40 and section 4 of Rule 41;

4. Unauthorized alterations, omissions or additions in the approved record on appeal as provided in

section 4 of Rule 44;

5. Failure of the appellant to serve and file the required number of copies of his brief of
memorandum within the time provided by these Rules;

6. Absence of specific assignment of errors in the appellant’s brief, or of page references to the
record as required in

section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

7. Failure of the appellant to take the necessary steps for the correction or completion of the record
within the time limited by the court in its order;

8. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with
orders, circulars, or directives of the court without justifiable cause; and

9. The fact that the order or judgment appealed from is not appealable (Rule 50)

A search warrant is an order in writing issued in the of the People of the Philippines, signed by the
judge and directed to a peace officer, commanding him to search for personal property described
therein and bring it before the court.

Note: The warrant MUST name the person upon whom it is to be served EXCEPT in those cases
where it contains a DESCRIPTIO PERSONAE such as will enable the officer to identify the person.
The description must be sufficient to indicate clearly the proper person upon whom it is to be
served. (People v. Veloso GR No L-23051, October 20, 1925)

Q: What are the requisites for issuing a search warrant?

1. The search warrant must be issued upon probable cause;

2. Probable cause must be determined by the judge;

3. The judge must have personally examined the witness, in the form of searching questions and
answers, the applicant and his witnesses and took down their depositions;

4. Must particularly describe or identify the property to be seized as far as the circumstances will
ordinarily allow;

5. Must particulary describe the place to be searched and the person or things to be seized;
6. Must be in connection with one specific offense:

7. The sworn statements together with the affidavit submitted by witnesses must be attached to the
record. (Prudente v. Dayrit GR No. 82870, December 14, 1989);

8. It must not have been issued more than 10 days prior to the search made pursuant thereto.

Note: Two points must be stressed in connection with this mandate: (1) that NO warrant of arrest
shall issue but upon probable cause to be determined by the judge in the manner set forh in said
provision, and (2) that the warrant shall particularly describe the things to be seized. (Stonehill v.
Diokno, G.R. No. L-19550, June 19, 1967)

Warrant of Arrest Search Warrant

Order directed to the peace officer to execute the warrant by Order in writing in the name of the Republic of the Philippines
taking the person stated therein into custody so that he may signed by the judge and directed to the peace officer to search
be bound to answer for the commission of the offense. personal property described therein and to bring it to court.

Does not become stale. Validity is for 10 days only.

May be served on any day and at any time of day or night. To be served only in daytime unless the affidavit alleges that
the property is on the person or in the place to be searched.

Searching examination of witnesses is not necessary. Must personally conduct an examination of the complainant
and the witnesses.
Judge is merely called upon to examine and evaluate the Examination must be probing. Not enough to merely adopt the
report of the prosecutor and the evidence questions and answers asked by a previous investigator

Q: Where should an application for a search warrant be filed?

GR: It should be filed with the court within whose territorial jurisdiction the crime was committed. For
compelling reasons, any court within the judicial region where the crime was committed if the place
of the commission of the crime is known, or any court within the judicial region where the warrant
shall be enforced

XPNs:

1. However, if the criminal action has been filed, the application shall only be made in the court
where the criminal action is pending (Sec. 2);

2. In case of search warrant involving heinous crimes, illegal gambling, illegal possession of
firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of
2002, the Intellectual Property Code, the Anti- Money Laundering Act of 2001, the Tariff and
Customs Code, the Executive judges and whenever they are on official leave of absence or are not
physically present in the station, the Vice- Judges of RTCs of Manila and Quezon City shall have
the authority to act on the application filed by the NBI, PNP and the Anti- Crime Task Force
(ACTAF). (Administrative Matter No. 99-10-09-SC)

Note: The application shall be personally endorsed by the heads of such agencies and shall
particularly described therein the places to be searched and/ or the property or things to be seized
as prescribed in the Rules of Court. The Executive Judges and the Vice- Exceutive Judges
concerned shall issue the warrants if justified, which may be served outside the territorial jurisdiction
of said courts. (Sps. Marimla v. People of the Philippines, GR No. 158467, October 16, 2009)

Q: What are the requisites in determining the existence of probable cause?

1. The judge must examine the complainant and his witness personally;

2. The examination must be under oath; and

3. The examination must be reduced in writing in the form of searching questions and answers
(People v. Mamaril, 420 SCRA 662)
Q: Who determines probable cause?

GR: Probable cause must be determined personally by the judge (Article 3, Section 2, 1987
Constitution)

XPN: Deportation of illegal and undesirable aliens, whom the President or the Commissioner of
Immigration may order arrested following a final order of deportation for the purpose of deportation
(Harvey v. Defensor- Santiago GR No 82544, June 28, 1988)

Note: The requirement of probable cause, to be determined by a Judge, does not extend to
deportation proceedings. (Tiu Chun Hai v. Commissioner, G.R. No. L-10009 December 22, 1958)

Q: What is Multi Factor Balancing Test in determining probable cause?

A: Multi Factor Balancing test is one which requires the officer to weigh the manner and intensity of
the interference on the right of the people, the gravity of the crime committed, and the
circumstances attending the incident.

Q: What is the purpose of describing with particularity the place to be searched and the persons or
things to be seized?

A: The purpose of the rule is to leave the officers of the law with not discretn regarding what articles
they shall seize, to the end that “unreasonable searches and seizures” may not be made- that
abuses may not be committed. (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967)

Plain view situation

The plain view doctrine authorizes a search and a seizure without a warrant.

For the doctrine to apply, the following requisites must be met:

a. There must have been a legal presence in the place where the search is made;

b. The evidence was discovered inadvertently by an officer with a right to be where he is;

c. The evidence is immediately apparently illegal; and

d. There is no need for any further search to obtain the evidence (People v. Concepcion, 361 SCRA
540; People v. Sarap, 399 SCRA 503; People v. Go; 411 SCRA 81)

Stop and frisk situations

This is a limited protective search of the outer clothing of a person to determine the presence of
weapons. Probable cause is not required but a genuine reason (not mere suspicion) must exist, in
the light of the officer’s experience and surrounding circumstances, to warrant the belief that the
persons has concealed weapons (Malacat v. Court of Appeals, 283 SCRA 159).

Its object is either to:

a. determine the identity of a suspicious individual

b. maintain the status quo momentarily while the police officer seeks to obtain more information.

Note: The officer may search the outer clothing of the person in an attempt to discover weapons
which might be used to assault him (Manalili v. CA, G.R. No. 113447, Oct. 9, 1997)

Q: What are the remedies against an unlawful search?

1. Motion to quash the search warrant;

2. Motion to suppress as evidence the objects illegally taken (exclusionary rule – any evidence
obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any
proceeding);

3. Replevin, if the objects are legally possessed; and

4. Certiorari, where the search warrant is a patent nullity.